author: PIERCE, Justice,

text:
    Fernando Martinez PARKER a/k/a Tal v. STATE of Mississippi.
    No. 2008-KA-00409-SCT.
    Supreme Court of Mississippi.
    March 25, 2010.

      Kelsey Levoil Rushing, Jackson, attorney for appellant.
    Office of the Attorney General by Deirdre Mccrory, attorney for appellee.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. Fernando Martinez Parker was indicted by a grand jury of Coahoma County in November 2004 for possession of a firearm on educational property in violation of Mississippi Code Section 97-37-17, for murder of Jarvis Moore in violation of Mississippi Code Section 93-3-19, and for aggravated assault of Justin Moore in violation of Mississippi Code Section 97-3-7(2)(b). Parker was tried and convicted of all three charges. The Honorable Kenneth Thomas sentenced Parker to life without parole for the murder of Jarvis Moore, three years for possession of a firearm on educational property, and fifteen years for aggravated assault of Justin Moore. Aggrieved, Parker appeals his conviction and sentence.

FACTS

¶ 2. On October 26, 2004, four Coahoma Community College students, Justin Moore, Jarvis Moore, Ketrick Buck, and John Jamison, walked across campus from their dorm, Friends Hall, to Moore Hall to get a video game from their friend, Kendrick Harris. Kendrick lived on the bottom floor of Moore Hall. When these four men arrived at Moore Hall, a verbal altercation began between them and a group of students congregating on the second-floor balcony. The group on the second floor included Vincent Cross, Jonathan Haney, and Fernando Parker.

¶ 3. Justin Moore, Buck, and Haney testified at trial that the verbal altercation quickly turned into a physical altercation, after which Parker pulled out a gun and began shooting. Justin Moore and Buck also testified that Parker shot and killed Jarvis Moore and shot and injured Justin Moore. Both Justin Moore and Buck testified that Parker aimed directly at Jarvis Moore. Haney hid in a dorm room during the actual shooting, but he testified to seeing Parker with the gun immediately after the shooting ceased.

¶ 4. According to law enforcement testimony, officers arrested Parker the following day. Parker gave a written statement to police after waiving his rights. Parker’s statement, dated October 27, 2004, reads as follows:

I have been going to school at Coahoma Community College for 2 years. I have lived in the Moore Building the whole time I have been in school. I started having problems with these guys about a week ago. I only know one guy’s nickname which is “J Streel”. There are four other guys but I do not know their names. I was in the dorms, laying on the bench outside my bedroom when I heard cussing and yelling outside on the balcony. I walked to the door, which was open, and I got punched in the face. J Streel and another guy started punching me and I punched them back. I had been carrying a .380 pistol in my pocket for about a week, and it fell out of my pocket. I saw J Streel and the guy and I had been fighting punching Vincent Cross, and I picked up the gun, aimed at the guy I had been fighting, and shot at least five times. I did not see any other weapons, only people throwing punches. I shot the guy to get him off me. Everybody started running, and I ran down the stairs and behind the dorm building. I threw the gun into the woods, hoping it would land in the water. I ran back to my room, and locked myself in the closet because I was scared the police would come and I did not know what they would do. I stayed in the closet a long time until I called my mother. I told her what happened, and she told me to turn myself in to the police. I came out the door and did what the officers told me to do.

The statement was signed by Parker and witnessed by then — Officer John Marsh of the Mississippi Bureau of Investigation. Marsh testified at trial and identified the statement as having been made by Parker.

¶ 5. According to trial testimony, the gun used at the shooting was never found. An Alcohol Tobacco and Firearms trace, however, revealed that Parker owned a Cobra FS380 (or a .380 caliber pistol), which officers identified as the same type of weapon used to kill Jarvis Moore. The trace document also was entered into evidence. Further, Mississippi Bureau of Investigation Officer Allen Thompson testified to finding a box of .380 cartridges in Parker’s dorm room, and Ken Gill, the forensic lab technician, testified to finding six .380 caliber shell casings at the scene. Parker did not testify on his own behalf.

COURSE OF PROCEEDINGS

116. A grand jury returned an indictment on November 30, 2004, charging Parker with: (1) possession of a firearm on educational property, (2) the murder of Jarvis Moore, and (3) the aggravated assault of Justin Moore. The Coahoma County Circuit Court appointed an attorney for Parker and set the trial date for December 20, 2004. The case was continued five times over the next three years as different attorneys were appointed, retained, withdrawn, and reappointed, all while Parker’s status fluctuated between indigent and non-indigent.

¶ 7. Parker first filed a Motion for Appointment of Attorney on December 7, 2004, swearing that he had insufficient funds to employ an attorney. The court appointed David Tisdell, a licensed and practicing Mississippi attorney, to represent Parker. On February 1, 2005, Tisdell filed a Motion to Withdraw because Parker had retained attorney Michael Robinson of Smith, Rushing, Cotton & Robinson law firm to represent him at trial. Robinson filed a Motion to Withdraw on May 11, 2005, due to health reasons. The court denied this request. The court further noted that the firm would not be relieved of its obligation, though it would entertain another request should Parker retain a different lawyer. Robinson filed a Motion to Reconsider or in the alternative a Motion to Withdraw one month later, based again on Robinson’s deteriorating health, the inability of the firm’s other attorneys to represent Parker due to scheduling conflicts, and the fact that Parker had agreed to pay the firm $10,000 for representation, but had only paid $2,100 to date. The court denied the Motion to Reconsider, but granted Robinson’s Motion to Withdraw due to Parker’s failure to pay. However, the court ordered the firm to refund Parker’s $2,100, which Parker could use to obtain the attorney of his choice.

¶ 8. The court also refused to appoint Parker another attorney. Nevertheless, on July 15, 2005, the trial court authorized Parker to proceed in forma pauperis and reappointed Tisdell to represent Parker. On February 14, 2006, Judge Larry Lewis conducted a jury trial that ended in a mistrial.

¶ 9. On February 22, 2006, Tisdell again withdrew due to a conflict of interest with one of the State’s potential witnesses, and Allan D. Shackleford was appointed as Parker’s attorney. Shackleford continued to represent Parker through the trial, which finally began on December 5, 2007. The State’s evidence included eyewitnesses, law enforcement, and forensic testimony, as well as photographs of physical evidence recovered from the crime scene. The actual gun was not admitted into evidence, because it was never recovered.

¶ 10. After the State rested, the defense moved for a directed verdict, but the trial court denied this motion. Parker’s trial counsel then rested without making an opening statement In fact, Parker’s counsel did not call a single witness to the stand (Parker stated at trial that he chose not to testify). In his summation, Parker’s trial counsel admitted to count one, firearm possession, but claimed that further testimony was not needed for the other charges of murder and aggravated assault because the State had not met its burden of proof for these charges.

¶ 11. The trial judge then met with counsel regarding jury instructions. The defense moved for the inclusion of manslaughter and self-defense instructions; the judge heard arguments regarding these two instructions. Based only on Parker’s statement, the trial judge allowed these instructions. Parker’s trial counsel again moved for directed verdict, which the trial court denied.

¶ 12. The trial concluded on December 7, 2007, with the jury returning guilty verdicts for firearm possession, murder, and aggravated assault. Judge Kenneth L. Thomas held Parker’s sentencing hearing on February 8, 2008. Judge Thomas sentenced Parker to three years and a $1,000 fine for firearm possession, life without parole for murder, and fifteen years for aggravated assault. Parker was remanded to the custody of the Coahoma County Sheriffs Department to be transported to the Mississippi Depai'tment of Corrections. Parker’s trial counsel did not file a motion for a new trial or judgment notwithstanding the verdict. Parker appeals, and asks that this Court reverse the trial court or, in the alternative, remand for resentencing.

ANALYSIS

¶ 13. Parker asserts the following six errors on appeal:

I. Whether the Trial Court Illegally Imposed a Sentence of Life Without Parole for Parker’s Murder Conviction.
II. Whether the Trial Court Subjected Parker to Double Jeopardy.
III. Whether the Trial Court Erred by Failing to Order a Competency Hearing.
IV. Whether the Trial Court Erred by Denying Parker’s Motions for Directed Verdict.
V. Whether Parker’s Trial Counsel Rendered Ineffective Assistance of Counsel.
VI. Whether Parker Is Entitled to Relief Based on Cumulative Error.

DISCUSSION

¶ 14. Except for the denial of the motion for directed verdict, all issues are raised for the first time on appeal. Generally, a party who fails to make a contemporaneous objection at trial must rely on plain error to raise the issue on appeal, because otherwise it is procedurally barred. Walker v. State, 913 So.2d 198, 216 (Miss.2005). Plain error exists where such error affects the defendant’s substantive/fundamental rights, even though no objection was made at trial. Thus, where Parker’s substantive and fundamental rights are affected, this Court will apply the plain-error doctrine in reviewing the alleged errors.

I. Whether the Trial Court Imposed an Illegal Sentence.

¶ 15. On appeal, Parker argues that the trial court illegally imposed a sentence of life imprisonment without parole for the murder conviction. This Court agrees with Parker on this assignment of error, and finds that trial court illegally sentenced Parker to life imprisonment without parole. The trial court should have sentenced Parker to no more than life imprisonment.

¶ 16. Mississippi Code Section 97-3-21 states:

Every person who shall be convicted of murder shall be sentenced by the court to imprisonment for life in the State Penitentiary.
Every person who shall be convicted of capital murder shall be sentenced (a) to death; (b) to imprisonment for life in the State Penitentiary without parole; or (c) to imprisonment for life in the State Penitentiary with eligibility for parole as provided in Section 47 — 7—(1)(£).

Miss.Code. Ann. § 97-3-21 (Rev.2006) (emphasis added). Parker was indicted and convicted of deliberate-design murder pursuant to Mississippi Code Section 97-3-19. Section 97-3-21 permitted the trial court to impose a sentence of only imprisonment for life. Miss.Code Ann. § 97-3-21 (Rev.2006). The trial court imposed a sentence of life imprisonment without parole, which exceeded the statutory maximum. Therefore, we find that Parker should be resentenced in accordance with Mississippi Code Section 97-3-21 on his murder conviction only.

¶ 17. Additionally, we take this opportunity to address the argument put forth by the State that Parker’s sentence was legal under Mississippi Code Section 47-7-3. Mississippi Code Section 47-7-3 provides, in pertinent part:

No person shall be eligible for parole who is convicted or whose suspended sentence is revoked after June 30, 1995, except that an offender convicted of only nonviolent crimes after June 30, 1995, may be eligible for parole if the offender meets the requirements in subsection (1) and this paragraph.

Miss.Code Ann. § 47-7-3(l)(g) (Rev. 2004). The Court of Appeals has interpreted this statute to mean that “Mississippi has abolished parole for crimes occurring after June 30, 1995, pursuant to Miss.Code Ann. § 47-7-3(1)(g) (Rev.1993 & Supp.1998)[.]” Wade v. State, 724 So.2d 1007, 1007-08 (Miss.Ct.App.1998).

¶ 18. Section 47-7-3 applies only to the internal operating procedures of the Department of Corrections and the prisons and does not affect a judge’s sentencing prerogative under the criminal statutes. Thus, the Court of Appeals’ interpretation of Section 47-7-3 is incorrect because the statute does not “abolish parole.” See Wade, 724 So.2d at 1007-08.

II. Whether the Trial Court Subjected Parker to Double Jeopardy.

¶ 19. Parker argues that the trial court erred by subjecting him to double jeopardy. Specifically, Parker claims that he was convicted of capital murder instead of deliberate-design murder. Parker further argues that capital murder and possession of a firearm on educational property have the same elements, and that firearm possession on educational property is a lesser-included offense of capital murder. This Court reviews a claim of double jeopardy de novo. Boyd v. State, 977 So.2d 329, 334 (Miss.2008).

¶ 20. The Fifth Amendment provides that no person shall be “subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V; Deeds v. State, 27 So.3d 1135, 1139 (Miss.2009). “Similarly, Section 22 of the Mississippi Constitution of 1890 provides that ‘no person’s life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution.’ ” Miss. Const, art. 3, § 22; id. at 1139

¶ 21. In the instant appeal, Parker cites Edwards v. State, 737 So.2d 275, 321 (Miss.1999), to support his position that possession of a firearm on educational property was the underlying felony in the capital-murder charge and thus the grounds for his double-jeopardy claim. The defendant in Edwards was charged with two counts of capital murder while engaged in the commission of an armed robbery, as well as one count of armed robbery. Id, at 284. This Court held that it was double jeopardy to convict the defendant of both capital murder with armed robbery as the underlying offense and armed robbery, and reversed the armed-robbery conviction. Id. at 321.

¶ 22. The present case is easily distinguished from Edwards. Parker’s indictment charged him with one count of deliberate-design murder pursuant to Mississippi Code Section 97-3-19, as well as one count of possession of a firearm on educational property pursuant to Mississippi Code Section 97-37-17. Section 97-3-19(l)(a) defines murder, in part, as “the killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases: (a) [wjhen done with deliberate design to effect the death of the person killed, or of any human being.” Miss.Code Ann. § 97 — 3—19(l)(a) (Rev. 2006) (emphasis added). The elements of firearm possession on educational property include possessing or carrying a gun, either openly or concealed, on a community college campus. Miss.Code Ann. § 97-37-17(2) (Rev.2006). The pertinent language of the indictment reads:

(1) [Parker] did unlawfully, willfully and feloniously, without the authority of law, and with deliberate design effect death, kill and murder a human being,” and (2) “did unlawfully, willfully and feloniously and without authority of law, possess a firearm, to-wit: a pistol, while on the campus of Coahoma Community College ....

¶ 23. Parker’s claim that “the charge in count one encompassed the charge in count II” is unsupported by the record. Parker was charged with and convicted of separate crimes, as evinced by the language in the indictment and the jury instructions. Each charge consists of entirely different elements, requiring different facts. Double jeopardy is not violated where a defendant is convicted of separate crimes. See Lee v. State, 469 So.2d 1225, 1228-29 (Miss.1985). Thus, it is illogical for Parker to argue on appeal that trial court subjected him to double jeopardy, as he was not tried twice for the same crime.

¶ 24. Additionally, Mississippi Code Section 99-7-2 states:

(1) Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense if: (a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan.
(2) Where two (2) or more offenses are properly charged in separate counts of a single indictment, all such charges may be tried in a single proceeding.

Miss.Code Ann. § 99-7-2 (Rev.2007). Here, the trial court correctly tried Parker in a single proceeding, and Parker’s criminal charges were based on a single, continuous act. Parker’s offenses were properly charged in separate counts; thus the tidal court did not subject Parker to double jeopardy.

III. Whether the Trial Court Erred by Failing to Order a Mental Examination.

¶ 25. Parker further avers that the trial court erred by failing to order a competency hearing at trial. Parker implies, but does not specifically state, that he is entitled to a new trial, or at least a competency hearing, because the trial testimony indicated that there was an issue of the defendant’s competency at the time of the alleged crime. Parker argues that the trial court never raised an issue of competency or confirmed Parker’s competency as he believes the law requires, citing Mississippi Uniform Circuit and County Court Rule 9.06 as support.

¶ 26. The determination of whether there are reasonable grounds for a competency test is discretionary with the court. Conner v. State, 632 So.2d 1239, 1248 (Miss.1993) ovenuled on other grounds by Weatherspoon v. State, 732 So.2d 158, 162 (Miss.1999). The test for competency to stand trial and thereby whether reasonable grounds exist is “whether the defendant has ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’ and has a rational as well as factual understanding of the proceedings against him.” Dunn v. State, 693 So.2d 1333, 1340 (Miss.1997) (quoting Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321(1993)).

¶ 27. We find that Parker’s argument is fatally flawed in two ways. First, Parker alleges that there were issues surrounding his competency at the time of the crime, and not at the time of trial, as the rule requires. See Miss. Unif. Cir. & Cty. R. 9.06. Since Parker avers on appeal that he was allegedly incompetent at the time of the crime, an insanity defense would have been more appropriate.

¶ 28. Second, Parker’s argument fails because he claims, incorrectly, that the rule required the trial court to bring forth the issue on its own motion. The rule, however, provides that the court must order a mental examination by some competent psychiatrist only if it has “reasonable grounds” to do so. Miss. Unif. Cir. & Cty. R. 9.06. Thus, if reasonable grounds exist, the rule requires that the court order the defendant to submit to a mental examination, and after such examination, then the court shall conduct a hearing to determine if the defendant is competent to stand trial. The trial court may raise the issue of competency to stand trial sua sponte or an attorney may make a motion concerning the defendant’s ability to stand trial. Miss. Unif. Cir. & Cty. R. 9.06. Here, Parker fails to present any facts on appeal that the trial court had reasonable grounds to order Parker to submit to a mental examination; further, the record lacks any evidence to show that Parker’s counsel raised the issue of his competency to stand trial. Thus, after a thorough review of the record, this Court finds that the trial court did not abuse its discretion by failing to order a mental examination, as it had no reasonable grounds to do so.

IV. Whether the Trial Court Erred by Denying Parker’s Motions for Directed Verdict.

¶ 29. Parker argues that the trial court erred by denying his motion and renewed motion for directed verdict. Specifically, Parker claims that the State failed to prove all of the elements of deliberate-design murder. Parker further avers that Buck and Justin Moore, two of the State’s witnesses testifying against Parker, had an interest in Parker’s conviction, but never states how or why this was so. On the contrary, the record shows that neither Buck nor Justin Moore would gain anything from Parker’s conviction, as neither men were ever considered suspects in the case.

1130. This Court reviews the denial of a motion for a directed verdict de novo. Branch v. State, 998 So.2d 411, 416 (Miss.2008). “In reviewing a denial of a motion for a directed verdict, if we determine the evidence points in favor of the defendant on any element of the offense such that a reasonable juror could not have found the defendant guilty beyond a reasonable doubt, we must reverse the conviction.” Id. (quoting Coleman v. State, 947 So.2d 878, 881 (Miss.2006)).

¶ 31. The elements for deliberate-design murder are: (1) the defendant killed the victim, (2) without authority of law, and (3) with deliberate design to effect his death. Miss.Code Ann. § 97-3-19 (Rev.2006). Parker argues that the State never presented proof of each of these elements, and that, if anything, it minimally made a prima facie case against him. However, considering the evidence in the light most favorable to the State, the evidence presented was legally sufficient to support the murder conviction.

¶ 32. The evidence in the record clearly shows (1) that Parker was in possession of a .380 caliber weapon and cartridges on the night in question, (2) that Parker shot and injured Justin Moore, (3) that Parker shot and killed Jarvis Moore, and (4) that Jarvis Moore’s death resulted from several gunshot wounds originating from a .380 caliber weapon. The evidence further shows that Parker killed Jarvis Moore without the authority of law, as nothing in the record demonstrates that Parker’s life was in imminent danger.

¶ 33. Finally, there is evidence in the record to support the jury’s finding that Parker killed Jarvis Moore with the deliberate design to effect his death. This Court has acknowledged “that ‘deliberate design’ to take the life of another connotes intent to kill.” Jones v. State, 710 So.2d 870, 878 (Miss.1998) (citing Peterson v. State, 242 So.2d 420, 427 (Miss.1970)). “[Deliberate design to kill a person may be formed very quickly, and perhaps only moments before the act of consummating the intent.” Brown v. State, 965 So.2d 1023, 1030 (Miss.2007) (quoting Gossett v. State, 660 So.2d 1285, 1293 (Miss.1995)). Parker admitted in his statement that he had possessed the gun at least a week prior to the shooting. He further admitted that, during the shooting, he deliberately aimed at the person who punched him. Ketrick Buck testified that Parker “popped off a couple of rounds,” paused, then feed more rapidly, all while aiming at Jarvis Moore. The evidence supports the finding that Parker had the requisite intent, even if it formed just moments before the act.

¶ 34. In light of these facts, this Court finds that the evidence is sufficient to support Parker’s murder conviction, and that any rational juror could have found beyond a reasonable doubt that the State proved each element of deliberate-design murder. Thus, the trial court properly denied Parker’s motion for a directed verdict.

V. Whether Parker’s Trial Counsel Rendered Ineffective Assistance.

¶ 35. Next, Parker avers that he was denied his Sixth Amendment right to effective assistance of counsel. Parker assigns the following errors on direct appeal: (1) trial counsel failed to object to the trial court’s illegal sentence of life without parole; (2) trial counsel failed to defend Parker against double jeopardy; (3) trial counsel failed to file a motion for a new trial; and (4) trial counsel failed to raise the issue of competency before the trial court.

¶ 36. This Court has addressed the proper procedures for reviewing claims for ineffective assistance of counsel on direct appeal. See Read v. State, 430 So.2d 832, 841-842 (Miss.1983). Generally, “ineffective assistance claims are more appropriately brought during post-conviction proceedings.” Archer v. State, 986 So.2d 951, 955 (Miss.2008). “This is because on direct appeal the Court is limited to the trial court record in its review of the claim.” IcL Where the record lacks sufficient evidence to adequately address the claim, this Court should deny relief, preserving the defendant’s right to argue the issue through a post-conviction-relief petition. Id. (citing Wilcher v. State, 863 So.2d 776, 825 (Miss.2003)). This Court may, however, address an ineffectiveness claim on direct appeal if the presented issues are based on facts fully apparent from the record. Id.; Miss. R.App. P. 22(b). Since the facts and issues are apparent from the record, we will address the merits of Parker’s claim of ineffective assistance of counsel.

¶ 37. The substantive standard of review for an ineffective-assistance claim is a well-settled, two-pronged principle of law.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must prove that his attorney’s performance was deficient, and that the deficiency was so substantial as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687-696, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Wilcher v. State, 479 So.2d 710, 713 (Miss.1985); Stringer v. State, 454 So.2d 468, 477 (Miss.1984). This Court looks at the totality of circumstances to determine whether counsel’s efforts were both deficient and prejudicial. Carney v. State, 525 So.2d 776, 780 (Miss.1988); Read v. State, 430 So.2d 832, 839 (Miss.1983). “Judicial scrutiny of counsel’s performance [is] highly deferential.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. There is a strong but rebuttable presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Carney, 525 So.2d at 780; Gilliard v. State, 462 So.2d 710, 714 (Miss.1985). Only where it is reasonably probable that but for the attorney’s errors, the outcome of the trial would have been different, will we find that counsel’s performance was deficient. Dickey v. State, 662 So.2d 1106, 1109 (Miss.1995); Reed v. State, 536 So.2d 1336, 1339 (Miss.1988).

Holly v. State, 716 So.2d 979, 989 (Miss.1998).

¶ 38. Furthermore, the appellant bears “the burden of proving that counsel’s performance was deficient and prejudicial.” Branch v. State, 882 So.2d 36, 52 (Miss.2004) (citing Hansen v. State, 649 So.2d 1256, 1258 (Miss.1994)). Additionally, there is no constitutional right to errorless counsel. Id. (citing Stack v. State, 860 So.2d 687, 696 (Miss.2003)); Cabello v. State, 524 So.2d 313, 315 (Miss.1988); Mohr v. State, 584 So.2d 426, 430 (Miss.1991) (Court held that the right to effective counsel does not entitle defendant to have an attorney who makes no mistakes at trial; defendant merely has right to have competent counsel).

A. Failure to object to trial court’s imposition of an illegal sentence.

¶ 39. First, Parker argues that he was constitutionally denied effective assistance of counsel, because his trial counsel failed to object to the trial court’s imposition of an illegal sentence. Parker believes that his trial counsel should have objected to this error by the trial court, and, because he did not, that he was denied effective assistance of counsel.

1140. Generally, the decision to make certain objections falls within the realm of trial strategy and is not grounds for a claim of ineffective assistance of counsel. Spicer v. State, 973 So.2d 184, 203 (Miss.2007). In the instant case, however, we cannot say that trial counsel’s failure to object falls within the realm of trial strategy, as Parker’s trial counsel should have objected to such error by the trial court.

¶ 41. Nevertheless, Parker fails to show on appeal how such conduct by the trial counsel prejudiced his case. Despite there being no objection by Parker’s trial counsel, this Court reviewed this issue under the plain-error doctrine; we therefore direct that Parker shall be sentenced properly on remand.

B. Failure to defend against double jeopardy.

¶42. Next, Parker argues ineffective assistance based on the trial counsel’s failure to defend Parker against double jeopardy. Parker avers that he was convicted of capital murder, and that this, along with his conviction for possession of a firearm on school property, somehow implicates the Double Jeopardy Clause of the federal and state constitutions. As discussed above, we find this argument to be without merit.

¶48. The record is clear that Parker was charged with and convicted of deliberate-design murder, as evinced by the language in the indictment and the jury instructions. Therefore, Parker’s possession of a firearm on school property was not a lesser-included offense, because Parker was not charged with or convicted of capital murder. Parker was charged with and convicted of three separate crimes that required different facts and different elements of proof. See Miss.Code Ann. §§ 97-3-19, 97 — 3—T(2)(b) and 97-37-17 (Rev. 2006). Thus, Parker was not subjected to double jeopardy, and failing to defend against such in this case does not constitute deficient performance under prong one of Strickland.

C. Failure to raise competency issue.

¶ 44. Parker also argues that his trial counsel rendered ineffective assistance by failing to raise the issue of competency at trial. The record is devoid of any evidence to show that the trial court had reasonable grounds to order a mental examination pursuant to Mississippi Uniform Circuit and County Court Rule 9.06. Because the record lacks any evidence that would suggest Parker was incompetent, we cannot conclude that Parker’s counsel acted ineffectively under this assignment of error. See Jordan v. State, 995 So.2d 94, 110 (Miss.2008) (citing Conley v. State, 790 So.2d 773, 784 (Miss.2001)); Miss. R.App. P. 28(a)(6).

D. Failure to Make Post-trial Motions.

¶ 45. Finally, Parker argues that trial counsel rendered ineffective assistance by failing to make a motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. In fact, the record lacks any post-trial motions except for Parker’s notice of appeal.

¶ 46. In Holland v. State, this Court dealt with whether a lawyer’s failure to make any post-trial motions constituted ineffective assistance of counsel. Holland v. State, 656 So.2d 1192 (Miss.1995). The trial lawyer in Holland failed to make any post-trial motions, to move for a directed verdict, or even to ask for a peremptory instruction. Id. at 1197. On appeal, the Court found that the lawyer’s performance amounted to ineffective assistance of counsel because the omissions (1) “deprived the trial judge of the of the opportunity to reexamine possible errors at trial” which (2) “deprived Holland of a fair trial.” Id. (following the Strickland standard).

¶47. In Simon v. State, this Court distinguished Holland somewhat by stating that, “[I]n Holland this Court was concerned with the fact that the trial counsel had completely failed to give the trial court the opportunity to review the sufficiency of the evidence at the end of the trial.” Simon, 857 So.2d 668, 690 (Miss.2003) (citing Holland v. State, 656 So.2d at 1197) (emphasis added). In Simon, trial counsel failed to move for a directed verdict at the close of all evidence, but did file a motion for JNOV, or, in the alternative, a new trial. Id. The Simon Court found that trial counsel’s conduct did not constitute ineffective assistance of counsel. Id. In the instant case, Parker moved for a directed verdict both at the close of the State’s case-in-chief and again at the end of the trial. Thus, the trial judge had two opportunities to review the legal sufficiency of the evidence, as previously discussed in Issue IV.

¶ 48. We note, however, that “[I]n a criminal proceeding, motions for a directed verdict [and JNOV] challenge the legal sufficiency of the evidence supporting the guilty verdict.” Croft v. State, 992 So.2d 1151, 1157 (Miss.2008). Here, the trial court had an opportunity to review the legal sufficiency of the evidence, but did not have an opportunity to review the weight of the evidence, as Parker’s counsel failed to file a motion for a new trial. Stewart v. State, 909 So.2d 52, 56 (Miss.2005) (citing Sheffield v. State, 749 So.2d 123, 127 (Miss.1999)) (outlining the standard of review for motions for a new trial). Thus, if the rules from Holland and Simon are applied to this case, the failure to file a motion for a new trial constituted a deficient performance under prong one of Strickland, since the trial judge did not have an opportunity to reconsider whether the verdict was contrary to the overwhelming weight of the evidence. However, Parker’s argument must also satisfy prong two under Strickland. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 49. Even though the trial counsel’s failure to move for a new trial constituted deficient performance, Parker fails to show how such deficiency prejudiced his case. Specifically, Parker failed to show how the filing of a motion for JNOV or, in the alternative, a new trial would have changed the outcome of the proceedings. There was no reasonable probability that the trial judge would have granted the motion for a new trial had he been afforded a second chance to review the evidence, as two eyewitnesses testified at trial to seeing Parker use a gun on school property to injure Justin Moore and to kill Jarvis Moore. The evidence in the record overwhelmingly supports the verdict. Further, Parker bears the burden of proving ineffective assistance of counsel, and without showing how trial counsel’s failure to make a post-trial motion prejudiced the outcome of his case, he simply does not meet that burden. Thus, this issue is without merit.

VI. Whether Parker Is Entitled to Relief Based on Cumulative Error.

¶ 50. In this assignment of error, Parker argues individual errors occurred that, when considered cumulatively, denied him the right to a fair and impartial trial. In cases where this Court finds harmless error or error that is not reversible in and of itself, the Court has the discretion to determine on a case-by-case basis whether the errors require reversal due to the resulting cumulative prejudicial effect. Byrom v. State, 863 So.2d 836, 847 (Miss.2003). However, if there is no “reversible error in any part, so there is no reversible error to the whole.” Duncan v. State, 939 So.2d 772, 784 (Miss.2006) (citing McFee v. State, 511 So.2d 130, 139 (Miss.1987)).

¶ 51. Parker avers that the cumulative effect of the alleged errors at trial prejudiced his case and deprived him of his fundamental right to a fair trial. The issues addressed previously, however, do not rise to the level of reversible error, either standing alone or when considered as a whole. Therefore, this assignment of error is without merit.

CONCLUSION

¶ 52. For the foregoing reasons, the jury convictions of murder, aggravated assault, and possession of a firearm on educational property are affirmed. However, we vacate the sentence of life without parole for the murder conviction and remand for resentencing within the statutory guidelines.

¶ 53. COUNT I: CONVICTION OF POSSESSION OF A FIREARM ON CAMPUS AND SENTENCE OF THREE (3) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF MURDER, AFFIRMED. SENTENCE OF LIFE WITHOUT PAROLE IS VACATED AND THIS CASE IS REMANDED FOR RESENTENCING AS TO COUNT II. COUNT III: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THE SENTENCES IMPOSED IN COUNTS I AND III OF THIS CAUSE SHALL RUN CONCURRENTLY WITH EACH OTHER AND CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED.

WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR, KITCHENS AND CHANDLER, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY.

      . The record is inconsistent regarding this friend's name. The State refers to this friend as Steve Harrison in its opening statement, but two witnesses, Ketrick Buck and Justin Moore, stated that the friend's name was Kendrick Harris.

      . The statute defines "nonviolent crime” to mean "a felony other than homicide, robbery, manslaughter, sex crimes, arson, burglary of an occupied dwelling, aggravated assault, kidnapping, felonious abuse of vulnerable adults, felonies with enhanced penalties, the sale or manufacture of a controlled substance under the Uniform Controlled Substances Law, felony child abuse, or exploitation or any crime under Section 97-5-33 or Section 97-5-39(2) or 97-5-39(l)(b), 97-5-39(l)(c) or a violation of Section 63-11-30(5).” Miss.Code Ann. § 47-7-3-(l)(g)(Rev.2004) (emphasis added).

      . Mississippi Code Section 97-37-17 provides, specifically:
      (l)(a) “Educational property" shall mean any public or private school building or bus, public or private school campus, grounds, recreational area, athletic field, or other property owned, used or operated by any local school board, school, college or university board of trustees, or directors for the administration of any public or private educational institution or during a school-related activity, and shall include the facilities and property of the Oakley and Columbia juvenile training schools operated by the Department of Human Services; provided, however, that the term “educational property” shall not include any sixteenth section school land or lieu land on which is not located a school building, school campus, recreational area or athletic field.
      (2) It shall be a felony for any person to possess or carry, whether openly or concealed, any gun, rifle, pistol or other firearm of any kind, or any dynamite cartridge, bomb, grenade, mine or powerful explosive on educational property. However, this subsection does not apply to a BB gun, air rifle or air pistol. Any person violating this subsection shall be guilty of a felony and, upon conviction thereof, shall be fined not more than Five Thousand Dollars ($5,000.00), or committed to the custody of the State Department of Corrections for not more than three (3) years, or both.
      Miss.Code Ann. § 97-37-17 (Rev.2006)

      . The pertinent language of Uniform Circuit and County Court Rule 9.06 states:
      If before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court in accordance with § 99-13-11 of the Mississippi Code Annotated of 1972.
      After examination the court shall conduct a hearing to determine if the defendant is competent to stand trial. After hearing all the evidence, the court shall weigh the evidence and make a determination of whether the defendant is competent to stand trial.
      Miss. Unif. Cir. & Cty. R. 9.06.

      . The record lacks any evidence that Parker intended to put forth an insanity defense at trial.

      . Rule 22(b) of the Mississippi Rules of Appellate Procedure provides:
      Issues which may be raised in post-conviction proceedings may also be raised on direct appeal if such issues are based on facts fully apparent from the record. Where the appellant is represented by counsel who did not represent the appellant at trial, the failure to raise such issues on direct appeal shall constitute a waiver barring consideration of the issues in post-conviction proceedings.


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    Linda LAFFITTE and Harry Laffitte, Appellants, v. SOUTHERN FINANCIAL SYSTEMS, INC., Appellee.
    No. 2008-CA-01724-COA.
    Court of Appeals of Mississippi.
    Sept. 15, 2009.
    Rehearing Denied Dec. 15, 2009.
    Certiorari Denied March 25, 2010.

      Timothy J. Matusheski, attorney for appellants.
    William V. Westbrook, Biloxi, attorney for appellee.
    Before LEE, P.J., ISHEE and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On July 12, 2007, Southern Financial Systems, Inc. (Southern Financial), filed an open-account collection action in the Justice Court of Wayne County, claiming that Linda and Harry Laffitte failed to pay $1,873.70 owed to Wayne General Hospital. The justice court clerk issued summons to both Linda and Harry, directing them to appear at the justice court on August 15, 2007, at 10:30 a.m. Linda was personally served with process on July 18, 2007. Harry was personally served that same day, but he later claimed that he was never properly served with process.

¶ 2. The Laffittes failed to respond to Southern Financial’s complaint and failed to appear before the justice court to defend the action. The justice court entered a default judgment in favor of Southern Financial against the Laffittes in the amount of $1,873.70. The justice court issued a writ of garnishment on October 19, 2007, to Linda’s employer, C & C Foods in the amount of $1,933.70, which included the unpaid court costs. C & C Foods withheld this amount from Linda’s earnings.

¶ 3. On February 19, 2008, the Laffittes filed a motion to vacate the default judgment. On March 7, 2008, Southern Financial notified the justice court that the judgment had been satisfied. The garnishment was subsequently released. On April 23, 2008, the justice court dismissed the Laf-fittes’ motion to vacate the default judgment with prejudice. On April 23, 2008, the Laffittes filed an “amended notice of appeal” in the Wayne County Circuit Court. On May 23, 2008, the Laffittes filed a motion to vacate the default judgment in the circuit court, asking the circuit court to overturn the default judgment in the justice court pursuant to Rule 60(b) of the Mississippi Rules of Civil Procedure. Southern Financial filed a motion to docket and dismiss the appeal of the default judgment. After a hearing on the motions, the trial court affirmed the justice court’s order denying the Laffittes’ motion to vacate. The circuit court denied the Laffittes’ motion to vacate as well as a counterclaim for wrongful garnishment against Southern Financial, which was filed by Linda.

¶ 4. The Laffittes now appeal, asserting the following issues: (1) Harry was not properly served with process; (2) service of process on Linda was not in compliance with Mississippi law; (3) the circuit court erred in finding it had no jurisdiction over their appeal; (4) Southern Financial’s claim against them was barred by the three-year statute of limitations; (5) Southern Financial did not meet its burden of proof entitling it to a default judgment; and (6) they were not required to post an appeal bond to perfect their appeal from the justice court to the circuit court. Finding no error, we affirm.

DISCUSSION

¶ 5. The Laffittes list several assignments of error; however, the crux of this appeal is whether the circuit court abused its discretion in denying their Rule 60(b) motion. Although a Rule 60(b) motion was not the proper means of seeking relief from the justice court judgment, we will not simply dismiss the Laffittes’ appeal. Rather, we will review the circuit court’s decision to deny the Laffittes the relief they sought under the familiar abuse of discretion standard. Davis v. Nationwide Recovery Serv., 797 So.2d 929, 930(¶ 2) (Miss.2001).

¶ 6. The circuit court found that the Laffittes were attempting to relitigate the underlying issues resolved by the justice court’s default judgment; thus, they were not entitled to any relief provided under Rule 60(b). The circuit court noted that the appropriate avenue for the Laffittes to seek relief would have been to defend the action in justice court and subsequently file a timely appeal to the circuit court.

¶ 7. The circuit court did, however, address the issues presented by the Laffittes pursuant to Mississippi Code Annotated section 11-51-91 (Rev.2002), which provides that an appeal from justice court be heard anew in circuit court. In regard to Harry’s argument that he was not properly served with process, the circuit court found that Harry failed to produce credible evidence to support his claim. According to the record, the Wayne County constable filed a return with the justice court, indicating that he had personally served Harry on July 18, 2007. The constable also signed an affidavit attesting that he personally served Harry with a summons. Harry’s only proof to support his claim consists of his own affidavit stating he was not served with process. The circuit court found that Harry’s allegations were insufficient to overcome the presumption that a defendant was properly served when a properly executed return exists. McCain v. Dauzat, 791 So.2d 839, 842(¶ 8) (Miss.2001). The circuit court further noted that Harry failed to timely challenge the service of process and, thus, waived his right to dispute the sufficiency of the process. See Wayne Lee’s Grocery & Market, Inc. v. Bay St. Louis, Miss. Commercial Props. Dev. Corp., 580 So.2d 1295, 1300 (Miss.1991).

¶ 8. In regard to service of process upon Linda, the circuit court noted that Linda admitted that she was personally served with process. Linda also argued that the summons itself was defective. However, the circuit court found that Linda had also waived her right to dispute the sufficiency of the process by failing to timely challenge the service of process. Id. We cannot find any abuse of discretion by the circuit court in finding that the service of process was proper.

¶ 9. The Laffittes contend that the circuit court erred in finding that it had no jurisdiction over the appeal. The circuit court specifically found that the Laffittes’ counterclaim for wrongful garnishment was an impermissible collateral attack of the default judgment. The supreme court has found that a party may not circumvent his or her failure to perfect a timely appeal of a default judgment against him or her in justice court by filing a claim in circuit court against a collection agency collaterally attacking the default judgment. Franklin Collection Serv. v. Stewart, 863 So.2d 925, 930(¶ 13) (Miss.2003). We agree with the circuit court that the Laffittes cannot now attack the substance of the default judgment after failing to make a timely appeal of that judgment to the circuit court.

¶ 10. The Laffittes contend that the open-account claim by Southern Financial for collection in the justice court was barred by a three-year statute of limitations. The circuit court found that the Laffittes’ unpaid bills were owed to a governmental entity, Wayne County General Hospital; the hospital’s accounts were assigned to Southern Financial for collection purposes only; and the claim by Southern Financial was not time-barred pursuant to Mississippi Code Annotated section 15-1-51 (Rev.2003), which provides that the statute of limitations in civil cases shall not run against the state. See Parish v. Frazier, 195 F.3d 761, 764 (5th Cir.1999).

¶ 11. The Laffittes also contend that Southern Financial did not meet its burden of proof entitling it to a default judgment. The circuit court found no merit to this issue, finding that the Laffittes were attempting to relitigate the issues. The circuit court further found that the Laffittes demonstrated no legitimate basis to set aside the default judgment. We agree with the circuit court’s findings.

¶ 12. Lastly, the Laffittes argue that the circuit court improperly found that they failed to post an appeal bond. The circuit court found no evidence that the Laffittes posted a bond pursuant to Uniform Rule of Circuit and County Court 5.09. In their brief, the Laffittes state that they posted a bond in the amount of zero dollars. The record contains no mention of an appeal bond. Regardless of whether the Laffittes filed an appeal bond or not, the circuit court addressed the merits of their arguments and found no reason to vacate the default judgment. We find no error and affirm.

¶ 13. Southern Financial asks for damages against the Laffittes pursuant to Mississippi Rule of Appellate Procedure 38 for filing a frivolous appeal. Rule 38 states that if an appellate court determines that an appeal is frivolous, “it shall award just damages and single or double costs to the appellee.” A pleading is considered frivolous when the pleader has no chance of success. Little v. Collier, 759 So.2d 454, 458(¶ 20) (Miss.Ct.App.2000). We find that the Laffittes’ appeal was frivolous. The Laffittes failed to timely contest their liability or the garnishment of Linda’s paycheck. Both the justice court and the circuit court rejected the Laffittes’ arguments in proficient, written opinions. The Laffittes had no chance of success on appeal; thus, we find it appropriate to assess double costs of this appeal to the Laffittes.

¶ 14. THE JUDGMENT OF THE WAYNE COUNTY CIRCUIT COURT IS AFFIRMED. DOUBLE COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. ROBERTS, J., CONCURS IN RESULT ONLY.


author: ISHEE, J.,

text:
    Lamarcus COLLINS a/k/a Two Pistols, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00644-COA.
    Court of Appeals of Mississippi.
    March 9, 2010.

      Erin Elizabeth Pridgen, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In April 2009, Lamarcus Collins a/k/a “Two Pistols” was tried and convicted in the Montgomery County Circuit Court of armed robbery and sentenced to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved by his conviction, Collins appeals. He asserts that the trial court abused its judicial discretion in denying his motion for a mistrial. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On September 20, 2008, at approximately 9:00 p.m., a masked man entered the home of Michelle Branch and robbed her at gunpoint of approximately fifty dollars. Branch, who was home alone, initially was unable to identify the robber because the robber wore a stocking cap to cover his face. According to her testimony at trial, Branch was able to identify the robber once he approached her and demanded all of her money. Branch recognized the robber as “Two Pistols.” Branch later identified Collins as the person she knew as “Two Pistols.” Branch stated that she recognized Collins because he was a friend of several of her family members and because he had visited her house several times in the past.

¶ 3. After the robbery, Branch ran to her door to see which way the robber went, but she was unable to see him. She went back inside her home and called the police. Officer Michael Spellman of the Winona Police Department was one of the first responding officers on the scene. Officer Spellman interviewed Branch, Collins, and Sarjenka Richardson, who was an eyewitness.

¶ 4. Officer Spellman testified that Branch first identified the robber as “Two Pistols” or Mark; however, Officer Spell-man later found out that the robber was Collins. Richardson, who lived next door to Branch, testified that Collins was on Branch’s street on the night of the robbery. Richardson also testified that she saw Collins wearing a stocking cap on his head prior to the robbery at Branch’s home.

¶ 5. The week of Collins’s trial three alibi witnesses were discovered: Collins’s second cousin Shandra Davis, Ariel Miller, and Cortez Lewis. Davis and Miller both testified that Collins was with them at Davis’s house playing a card game during the time Branch was robbed. However, even though Lewis recalled playing a card game at Davis’s house with Collins, he was not sure of the date that the card game was played.

¶ 6. All three of Collins’s alibi witnesses testified that they knew for approximately six months that Collins was with them at Davis’s house playing a card game during the time Branch was robbed. However, they chose not to go to an official to report this information until the week of Collins’s trial because they thought it was the job of the police to find them prior to trial, even though the police never had any information that they were possible alibi witnesses for Collins.

¶ 7. Collins testified on his own behalf and stated that he was playing cards at Davis’s home during the time Branch was robbed. He stated that he did not leave Davis’s home until 11:00 p.m. or 11:30 p.m. He testified that earlier that day he had purchased a cigarette from Branch’s son, but he denied robbing Branch.

¶ 8. Prior to trial, Collins filed a motion in limine to prevent the State from referring to him by his nickname, “Two Pistols.” The State argued that “Two Pistols” was the only name that Branch initially used to identify Collins. The trial court reserved time for the defense to object to the use of the nickname after the trial testimony had begun. However, before any witness took the stand, the State referred to Collins as “Two Pistols” in its opening statement to the jury. Collins then objected to the use of the nickname and argued that based on his motion in limine, the parties had not gotten to that point in testimony where the introduction of his nickname was to occur. The trial court admonished the State to refer to Collins by his name, and the trial continued.

¶ 9. The jury deliberated for approximately one hour and returned a verdict finding Collins guilty of armed robbery. Collins then filed a motion for a judgment notwithstanding the verdict or, in the alternative, a motion for a new trial. The trial court denied the post-trial motions. Collins then filed the present appeal. He asserts that the trial court abused its discretion when it denied his motion for a mistrial because the use of the nickname “Two Pistols” in the State’s opening statement was so prejudicial that it negatively influenced the jury’s decision and denied him of his right to a fair and impartial trial.

DISCUSSION

¶ 10. Collins asserts that the trial court erred in not granting his motion for a mistrial after the State used his nickname, “Two Pistols,” in its opening statement. Collins further asserts that the State’s mention of the nickname “Two Pistols” before witness testimony had begun created an irreparable prejudice to the defense. Collins further argues that because the trial court did not admonish the jury to disregard the remark, Collins’s right to a fair trial was significantly impaired because the jury’s attention was substantially deflected from the issue of whether Collins had committed the armed robbery to whether “Two Pistols” had committed the armed robbery.

¶ 11. “We review the trial court’s decision to grant, or deny, a mistrial under an abuse of discretion standard. A trial judge possesses the authority to declare a mistrial where prosecutorial conduct substantially deflects the attention of the jury from the issues that it has been called upon to decide or appeals to bias, passion, or prejudice, and, therefore, significantly impairs a defendant’s right to a fair trial.” Williams v. State, 919 So.2d 250, 253 (¶ 12) (Miss.Ct.App.2005). (citations omitted). The trial judge is permitted considerable discretion in determining whether a mistrial is warranted since the judge is in the best position to measure the prejudicial effect. Id. (citation omitted). The standard of review for alleged attorney misconduct during opening statements or closing remarks is “whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Slaughter v. State, 815 So.2d 1122, 1130 (¶ 45) (Miss.2002).

¶ 12. There is insufficient evidence in the record that indicates a prejudicial effect to Collins. In addition, no abuse of judicial discretion has been demonstrated. The nickname “Two Pistols,” which was listed in Collins’s indictment, had eviden-tiary support in the record from the testimony of Branch.

¶ 13. Accordingly, the reference to “Two Pistols” in the State’s opening statement was an accurate statement of what the State intended to prove. Branch’s testimony linked Collins’s name to the nickname “Two Pistols.” We find no merit to this issue.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF MONTGOMERY COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONTGOMERY COUNTY.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS AND MAXWELL, JJ„ CONCUR. KING, C.J., CONCURS IN RESULT ONLY.

      . It is not clear from the record how Officer Spellman was able to later identify "Two Pistols" as Collins.


author: IRVING, J.,

text:
    BOYD TUNICA, INC. d/b/a Sam’s Town Hotel and Gambling Hall, Appellant v. PREMIER TRANSPORTATION SERVICES, INC., Appellee.
    No. 2008-CA-01089-COA.
    Court of Appeals of Mississippi.
    March 9, 2010.

      Robert A. Miller, Jackson, Kyle Vernon Miller, attorneys for appellant.
    John D. Richardson, attorney for appel-lee.
    Before MYERS, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court:

¶ 1. Boyd Tunica, Inc., d/b/a Sam’s Town Hotel and Gambling Hall (Boyd Tunica) appeals from a final judgment of the Circuit Court of Tunica County awarding Ruth Beasley Latting $250,000 in damages for injuries that Ruth sustained while riding as a passenger on a shuttle bus owned by Premier Transportation Services, Inc. (Premier) that was involved in a near-collision with a pickup truck owned by Boyd Tunica and operated by one of its employees. Following a trial, a jury awarded Ruth $250,000 in damages, after assessing one-hundred percent of the fault against Boyd Tunica. Feeling aggrieved, Boyd Tunica appeals and asserts that the circuit court erred by refusing to grant certain jury instructions and by refusing to grant its motion for a new trial.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. On January 11, 2005, Ruth boarded a twenty-five-passenger shuttle bus in the parking lot of Hollywood Casino in Tunica, Mississippi, bound for Sam’s Town Casino. She sat on the front seat and did not fasten her seat belt. While en route to Sam’s Town, Frank Weeden, the driver of the shuttle bus, forcefully applied his brakes in order to avoid colliding with a pickup truck that had pulled out in front of him. The pickup truck was driven by John Sevier, an employee of Sam’s Town. Ruth was thrown from her seat and into the dashboard of the bus, resulting in three of her ribs being broken.

¶ 4. Thereafter, on September 12, 2005, Ruth instituted a personal injury action against Boyd Tunica and Premier in the Tunica County Circuit Court to recover damages for her injuries. On February 25, 2008, Boyd Tunica filed a motion in limine to

admit evidence of availability of and provision for seat belts in this case under the exception to [Mississippi Code Annotated section] 63-2-3 recognized by the Mississippi Supreme Court and to take judicial notice under [Rule 201 of the Mississippi Rules of Evidence] that the shuttle bus in which Plaintiff Ruth Beasley Latting was a passenger was a carrier of passengers for hue under Mississippi law.

Thereafter, on February 27, 2008, Premier filed a motion in limine to exclude all reference to seat belts, arguing that Mississippi Code Annotated section 63-2-3 (Rev.2004) provides that evidence of the failure to wear seat belts is not admissible to prove negligence.

5. The trial judge held a motion hearing on the morning of the first day of the trial and heard argument from both sides as to whether it would be proper to allow the jury to hear evidence regarding the use or non-use of seat belts. Then, immediately prior to opening statements, the trial judge stated that his “tentative ruling” was that evidence regarding seat-belt use and non-use would be allowed, subject to a cautionary instruction that the evidence could not be used to assess fault to Ruth as the party responsible for the cause of her injuries. The trial proceeded as scheduled. After testimony was complete and the attorneys were presenting the proposed jury instructions to the court, the trial judge said, “D-2 is given.” However, while reading instruction D-2 to the jury, the trial judge realized that he had not intended to give instruction D-2, as it conflicted with instruction P-11. The trial judge said:

Disregard that last instruction. That’s not proper law. That’s going to be withdrawn. That’s going to be refused.
I read one earlier instructing you not to consider evidence of seat[-]belt use or non-use to determine liability or damages against the plaintiff, Ruth Beasley, or the fault of Premier Transportation.

¶ 6. Thereafter, as stated, on May 6, 2008, the jury returned a verdict against Boyd Tunica in the amount of $250,000. The court entered its judgment on May 10, 2008. Following issuance of the judgment, Boyd Tunica filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial, which was denied by the trial court on June 6, 2008. On June 24, 2008, Boyd Tunica filed a notice of appeal, which reads as follows:

BY THIS NOTICE, pursuant to Rule 3 of the Mississippi Rules of Appellate Procedure, to the Circuit Clerk of Tuni-ca County, Mississippi, Ms. Sharon Granberry, P.O. Box 184, Tunica, Mississippi, against the plaintiff, Ruth Beasley, from the final judgment entered in this case on May 18, 2008, and the denial of the Motion for Judgment Notwithstanding the Verdict or, in the alternative, for New Trial, by order entered on June 6, 2008.

(Emphasis added). As will be discussed later in more detail, Ruth did not file a cross-appeal against Premier.

¶ 7. On July 13, 2009, eighteen days after the final brief was filed in this appeal, the trial court entered an order, pursuant to a settlement agreement between Ruth and Boyd Tunica, substituting Boyd Tuni-ca for Ruth. On July 17, 2009, Boyd Tunica filed a document in this Court, entitled “Motion for Partial Voluntary Dismissal.” In the motion, Boyd Tunica asked that the instant appeal as to Ruth be dismissed. On August 28, 2009, this Court granted Boyd Tunica’s motion.

¶ 8. It is against the backdrop of this unique set of facts that we consider the issues presented in this appeal.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 9. We observe at the outset that the unusual post-appeal proceedings in this case raise a serious question regarding the viability of this appeal. Therefore, before addressing the issues presented, we find it necessary to discuss the implications of the post-appeal proceedings.

¶ 10. As noted, more than a year after the trial court had lost jurisdiction of this case, it entered an order allowing the substitution of Boyd Tunica for Ruth. Clearly, this order is null and void because the trial court’s jurisdiction ended on June 24, 2008, when the notice of appeal was filed. However, the order entered by this Court is another matter. As stated, in the motion filed by Boyd Tunica with this Court, it asked that Ruth’s appeal be dismissed and that Boyd Tunica be substituted in her place. Inasmuch as Boyd Tunica’s appeal, according to its own notice, was against Ruth only, the effect of the substitution is to make Boyd Tunica both the appellant and the appellee. In other words, Boyd Tunica is now pursuing an appeal against itself. As Ruth’s assignee, Boyd Tunica has stepped into her shoes and possesses whatever claim or claims that she possessed at the time of the assignment. Since the case had already proceeded to judgment at the time of the assignment, Ruth possessed at that time the right to be paid $250,000, subject to the outcome of this appeal. However, even if Boyd Tuni-ca’s appeal is successful, Ruth, on remand, cannot pursue any claim against Premier because she did not file a cross-appeal against Premier. Likewise, Boyd Tunica, independent of the assignment from Ruth, cannot pursue any claim against Premier because Boyd Tunica appealed against Ruth only.

¶ 11. We are fully aware that Premier entered its appearance in this appeal and filed a brief. Nevertheless, we do not find that this action made it a party to this appeal, since it was not made a party pursuant to Rule 8(c) of the Mississippi Rules of Appellate Procedure, which states in part: “The notice of appeal shall specify the party or parties taking the appeal and the party or parties against whom the appeal is taken, and shall designate as a whole or in part the judgment or order appealed from.” As stated, Boyd Tunica’s notice of appeal specifies that the appeal is taken against Ruth only. As noted, Ruth did not file a cross-appeal against Premier, even though she could have done so if she felt aggrieved by the trial court’s failure to instruct the jury regarding Premier’s heightened duty of care that it owed her.

¶ 12. Although, for the reasons expressed, it is questionable as to whether this appeal is viable, nevertheless, we address the merits of it. As stated, Boyd Tunica contends that the jury was not properly instructed and that it should have been granted a new trial, because the court misled it with respect to what it could expect by way of jury instructions. We address these contentions in turn.

1. Jury Instructions

¶ 13. Boyd Tunica asserts that the trial court erred in refusing two of its proposed jury instructions, D-l and D-2. Boyd Tu-nica further asserts that the proposed instructions were necessary in order to properly instruct the jury as to the heightened standard of care that Premier, as a common carrier, owed to Ruth.

¶ 14. It is clear in this state that “[a] party is entitled to have the jury instructed regarding a genuine issue of material fact so long as there is credible evidence in the record which would support the instruction.” Southland Enter., Inc. v. Newton County, 838 So.2d 286, 289 (¶ 8) (Miss.2003) (citing Tharp v. Bunge Corp., 641 So.2d 20, 26 (Miss.1994)). Also, the Mississippi Supreme Court has held that “all instructions as a whole must be read to determine whether a jury has been correctly instructed.” Glorioso v. Young Mens Christian Ass’n of Jackson, 556 So.2d 293, 295 (Miss.1989) (citing Jackson v. Griffin, 390 So.2d 287, 290 (Miss.1980)). Further, “[a]ll instructions taken as a whole must fairly announce the applicable primary rules of law.” Id. (citing Allen v. Blanks, 384 So.2d 63, 65 (Miss.1980)). Finally, “the trial court has considerable discretion in instructing the jury.” Southland Enter., 838 So.2d at 289 (¶ 9) (citing Splain v. Hines, 609 So.2d 1234, 1239 (Miss.1992)).

¶ 15. Premier argues that Boyd Tunica never tendered proposed jury instruction D-l to the trial court. As might be expected, Boyd Tunica disagrees and asserts that it presented the following unnumbered instruction, which is in fact instruction D-l:

The Court instructs the jury that you may consider the fact that co-defendant Premier Transportation Services, Inc., was equipped with functional seat belts in accordance with Premier Transportation’s Tunica County Casino Shuttle Driver’s Guide for the purpose of determining whether Premier met its duty of care to its passenger, Ruth Beasley. However, you may not consider plaintiff’s use or non-use of seat belts in determining, (1) whether the plaintiff was at fault for her own injuries and/or, (2) whether plaintiff’s use or non-use of her seat belt caused her injury.

(Emphasis added). We note that the above instruction is attached as exhibit “C” to Boyd Tunica’s posttrial motion. From our review of the record, we find that an instruction, which may have been the proposed instruction D-l, was presented to the court during the jury-instruction conference and denied. However, we are unable to determine whether the instruction that was presented was in fact D-l, because the trial court did not recite enough of the instruction for us to make that determination. On this point, the record reflects the following recitation with respect to the instruction: “The Court instructs the jury you may consider the fact the co-defendant was equipped with — front seat, [sic] accordingly.” At no point in the record was this instruction ever identified as D-l.

¶ 16. It is well-settled law that it is the responsibility of the appellant to present a record sufficient to support his assignments of error. Juarez v. State, 965 So.2d 1061, 1065 (¶ 12) (Miss.2007) (citing Acker v. State, 797 So.2d 966, 971 (¶ 19) (Miss.2001)). Since the record is insufficient to enable us to properly review the instruction in question, we find no merit to Boyd Tunica’s argument that the trial court erred in refusing to grant instruction D-l. Further, even if exhibit “C” is an accurate copy of instruction D-l that was presented to the trial court during the jury-instruction conference, we are unable to discern its usefulness to Boyd Tunica. As shown by its wording, the instruction identified as exhibit “C” not only would have instructed the jury that Ruth’s failure to buckle her seat belt could not be used as evidence against her, it also would have instructed the jury that Ruth’s failure to buckle her seat belt could not be used as evidence of the causation of her injuries. If the fact that Ruth’s seat belt was not fastened could not be considered in determining the causation of her injuries, we fail to perceive how Boyd Tunica was prejudiced by the trial court’s refusal to grant the instruction. It appears quite clear to us that the instruction identified as exhibit “C” is at odds with Boyd Tunica’s theory of the case that Ruth’s injuries were caused not by its driver pulling' out in front of Premier’s shuttle bus, but by Ruth’s riding on the shuttle bus in the front seat with her seat belt unfastened. While a trial court has an obligation to see that a jury is properly instructed, it is not required to draft instructions for either party. Wilson v. State, 936 So.2d 357, 363 (¶ 14) (Miss.2006). Here, Boyd Tunica did not offer an instruction consistent with its theory of the case. Therefore, for this additional reason, we find that the trial court did not err in not granting the instruction that is reflected in exhibit “C.”

¶ 17. As stated, Boyd Tunica also argues that the trial court erred in refusing to grant jury instruction D-2, which reads as follows:

The Court instructs the jury that under the law of the State of Mississippi, a carrier of passengers for hire is required to exercise the highest degree of care and diligence for the safety of its passengers. If you find by a preponderance of the evidence that Premier Transportation negligently operated its shuttle bus which the driver, Frank Weeden, drove with the knowledge that Ruth Beasley was a front seat passenger who was not wearing a seat belt, and that this was contrary to the driver guidelines of Premier Transportation, Inc. and that further by operating the vehicle while Ruth Beasley was not wearing a seatbelt, defendant [Premier] [Transportation, through its driver, failed to exercise the highest degree of care and diligence for the safety of its passengers including Ms. Beasley, you should find for the plaintiff Ruth Beasley against him [sic].

¶ 18. According to Boyd Tunica, instruction D-2, along with instruction D-l, would have informed the jury that it could consider Premier’s violation of its seat-belt policy as evidence of Premier’s negligence. Premier’s seat-belt policy provides:

The law requires that all front seat passengers and driver wear the seat belt while the vehicle is in motion. Wear your seat belt at all times, it’s the law. Premier Transportation insists that all passengers “buckle up.” Inform the company if you find anything wrong with the vehicle safety belts as you would with any other defect in the safety, comfort or operation of the vehicle.

¶ 19. We first observe that Premier’s seat-belt policy appears to be based on Premier’s mistaken notion that the law requires that its drivers and its front seat passengers fasten their seat belts at all times. This is not the case. Mississippi’s mandatory seat-belt law, codified as Mississippi Code Annotated sections 63-2-1 through 63-2-7 (Rev.2004), requires the operator, every front-seat passenger, and every child under seven years of age to wear their seat belts fastened when riding in a passenger motor vehicle. However, the seat-belt law defines a passenger motor vehicle as a “motor vehicle designed to carry fifteen (15) or fewer passengers including the driver ...” Miss.Code Ann. § 63-2-1(2) (Supp.2009) (emphasis added). The shuttle bus on which Ruth was riding when she was injured was designed to carry twenty-five passengers. Therefore, neither she nor the operator was required by law to have his seat belt fastened during operation of the shuttle bus.

¶ 20. Even if Premier’s shuttle bus had been subject to the mandatory seat-belt law and Premier had failed to provide a seat-belt-restraint system in its shuttle buses, it could not have been subjected to a claim of contributory negligence because of the provisions of Mississippi Code Annotated section 63-2-3 (Rev.2004), which provide:

This chapter shall not be construed to create a duty, standard of care, right or liability between the operator and passenger of any passenger motor vehicle which is not recognized under the laws of the State of Mississippi as such laws exist on the date of passage of this chapter or as such laws may at any time thereafter be constituted by statute or court decision. Failure to provide and use a seat[-]belt[-]restraint device or system, shall not be considered contributory or comparative negligence, nor shall the violation be entered on the driving record of any individual.

(Emphasis added).

¶ 21. It is counterintuitive to suggest that the law would impose liability on Premier for violating its seat-belt policy when, in this instance, the law does not require that Premier even provide seat-belt restraints. However, even if the law required such restraints, Premier’s failure to provide them could not be used as evidence of Premier’s contributory or comparative negligence. Boyd Tunica seems to implicitly recognize this point, for it argues that Premier’s violation of its internal regulations serves as an “exception” to the law’s prohibition against considering non-use of seat belts as evidence of negligence in any form. We are not persuaded by this argument. It is clear to us that Premier’s seat-belt policy is predicated upon its mistaken notion of what the seat-belt law requires, rather than upon its desire to limit its exposure in tort actions, despite the requirements of the law. Even assuming the latter consideration was the basis for Premier’s seat-belt policy, it is again counterintuitive to suggest that a private policy that Premier established to limit its liability exposure from its passengers can be used against it to impose liability, not by one of its passengers, but by another with whom Premier does not share a mutual interest as it does with its passengers.

¶ 22. It has long been established in this state that “[t]he person charging negligence must show that the other party, by his act or omission, has violated some duty incumbent ... upon him and thereby caused the injury complained of.” Milner Enters., Inc. v. Jacobs, 207 So.2d 85, 91 (Miss.1968). Because Premier did not owe a duty to Boyd Tunica, it could not have breached that duty and could not have caused any injury to Boyd Tunica. The question, however, is not whether Boyd Tunica was entitled to have the jury instructed regarding Premier’s duty of care to Boyd Tunica, but whether Boyd Tunica was entitled to have the jury properly instructed on the standard of care owed by Premier to Ruth.

¶ 23. During the pretrial hearing, the trial judge determined that Premier was a common carrier. In Erwin Mills, Inc. v. Williams, 238 Miss. 335, 339, 118 So.2d 339, 341 (1960), our supreme court held that “[t]o constitute ... a common carrier, [one] must hold himself out as engaged in public service for all persons indifferently, so that he would be liable for refusal without excuse, to carry for all who might apply.” Further, in Lambert v. Lott, 222 So.2d 816, 818 (Miss.1969) (quoting Teche Lines, Inc. v. Keyes, 187 Miss. 780, 193 So. 620, 621 (1940)), the Mississippi Supreme Court held that “a common carrier by motor ... owes the duty to its passengers to exercise the highest degree of care and precaution for their safety that is consistent with the practical conduct of its business.”

¶ 24. It appears to us that Premier was a carrier of passengers for hire, rather than a common carrier, as it did not hold itself out as engaged in public transportation services genei'ally, available to all persons who might apply to ride. Rather, pursuant to a contract with Sam’s Town Casino to provide shuttle service “along a fixed route,” it provided service only to people who wished to travel between the various casinos that Premier serviced. However, for the purpose of determining the standard of care owed by Premier to Ruth, it does not matter whether Premier is classified as a common carrier or as a carrier of passengers for hire, because both carriers’ standard of care to their passengers is the same. In Goodwin v. Gulf Transport Company, 453 So.2d 1035, 1036 (Miss.1984), our supreme court held that a carrier of passengers for hire “is required to exercise the highest degree of care and diligence for the safety of its passengers.” The Goodwin court also held that “[a carrier of passengers for hire] may be held liable for personal injuries only where those have been caused by the carrier’s failure to exercise this highest degree of care.”

¶ 25. Thus, it is clear that Premier owed a duty to Ruth to exercise the highest degree of care to ensure her safety. Now that we have established the standard of care owed by Premier to Ruth, we return to the question at hand: did the trial court err in not granting instruction D-2.

¶ 26. Instruction D-2 states that “under the law of the State of Mississippi, a carrier of passenger[s] for hire is required to exercise the highest degree of care and diligence for the safety of its passengers.” That is a correct statement of the law. However, the balance of instruction D-2 is confusing, as it would have allowed the jury to find that Premier negligently operated the shuttle bus, even though there is no evidence in this record that Weeden negligently operated the shuttle bus. There is evidence that Wee-den drove the shuttle bus with the knowledge that Ruth was not wearing a seat belt. However, that is not the same thing as negligently operating the shuttle bus. Further, instruction D-2 would have invaded the province of the jury by peremptorily instructing the jury that Premier, by operating the shuttle bus while Ruth was not wearing a seat belt, failed to exercise the highest degree of care and diligence for her safety. Finally, and most importantly, instruction D-2 would have shifted total liability for Ruth’s injuries to Premier, notwithstanding the fact that Boyd Tu-nica’s driver’s action of pulling out in front of the shuttle bus was the sole proximate cause of the abrupt stop that Weeden was forced to make. Therefore, we find that, based on the facts of this case, instruction D-2 was not proper, and the trial judge did not err in refusing to grant it.

¶ 27. Boyd Tunica’s final argument regarding jury instructions is that the trial court erred in granting instruction P-11, which provides: “You are instructed not to consider evidence of seat-belt use or non-use in determining liability and/or damages against the Plaintiff, Ruth Beasley, or the fault of Premier Transportation.” We have already found that the seat-belt law does not apply to Ruth and the passengers that were on Premier’s shuttle bus. On this point, Boyd Tunica agrees. We have also found that even if the seat-belt law were applicable, evidence of Ruth’s non-use of her seat belt would not have been admissible, because the seat-belt law prohibits such admission. Again, Boyd Tuni-ca acknowledges as much. This fact notwithstanding, Boyd Tunica insists that the court erred in giving instruction P-11. As we understand Boyd Tunica’s argument, the problem with instruction P-11 is that it prohibited the jury from taking into consideration the heightened duty of care that Premier owed to Ruth.

¶ 28. There is no evidence in the record that Premier failed in any way to provide the highest standard of care to Ruth, unless operating the shuttle bus without making sure that she had fastened her seat belt can be considered such failure. As the seat-belt law contains no provisions that required Ruth to have her seat belt fastened, Boyd Tunica’s argument — that Premier failed to provide the requisite standard of care to Ruth — is predicated solely upon Premier’s driver’s guide, which contains Premier’s seat-belt policy and other provisions designed to ensure passengers’ safety. As stated, the seat-belt policy contains the following provision: “Premier Transportation insists that all passengers ‘buckle up.’ ” Other provisions of the driver’s guide instruct the driver regarding safety measures that must be followed. For example, in the section on safety, the driver is instructed to “[n]ever pull away from a stop until all passengers are seated.” In the section on bus-driving hints that will help avoid accidents, the driver is instructed to “[b]e sure all the passengers are securely seated before attempting to pull off from the curb.” Finally, in the section on passenger safety, the driver is instructed to “[r]emain stopped until all passengers are seated and/or have cleared the bus before proceeding from the curb.” As can be seen from the quoted passages, there is no provision in the driver’s guide that requires the driver to make sure a passenger has his seat belt fastened before the driver operates the bus. The admonition to the driver is to make sure that the passengers are seated or securely seated. While the seat-belt policy, which is one of the sections of the driver’s guide, states that Premier insists that all passengers buckle up, it stops short of placing the responsibility on the driver to ensure that the passengers’ seat belts are fastened. There is no evidence that Weeden failed to comply with the provisions that were applicable to him. For example, there is no evidence that Ruth was not firmly in her seat when he moved from the stop where he picked her up.

¶ 29. Nevertheless, assuming that the driver’s guide requires the operator to make sure that the front-seat passengers have their seat belts fastened, we cannot find that Weeden’s violation of this policy was either the proximate cause or a contributing cause of the abrupt stop that Weeden was forced to make. As stated, there is no evidence that Weeden operated the shuttle bus in a negligent manner. While it is true that if Ruth had had her seat belt fastened, she may not have been propelled into the dashboard of the shuttle bus, it is also true that if Boyd Tunica’s employee had not suddenly pulled out in front of the shuttle bus, Weeden would not have had to abruptly apply the brakes.

¶ 30. In support of its argument that instruction P-11 prohibited the jury from considering Premier’s violation of its internal safety regulations as evidence of its breach of duty to exercise the highest degree of care for Ruth’s safety, Boyd Tuni-ca directs our attention to several cases, including Moore ex rel. Moore v. Memorial Hospital of Gulfport, 825 So.2d 658 (Miss.2002); Taylor v. Singing River Hospital System, 704 So.2d 75 (Miss.1997); Steele v. Inn of Vicksburg, Inc., 697 So.2d 373 (Miss.1997); and Chisolm v. Mississippi Department of Transportation, 942 So.2d 165 (Miss.Ct.App.2005). We accept that the law in this state is that a breach of one’s internal policies may be considered in determining whether one has exercised the appropriate standard of care. Therefore, we see no need to discuss those cases. Suffice it to say that none of those cases are factually on all-fours with our case. None of those cases involved a putative joint tortfeasor.

¶ 31. Premier’s breach of duty, if indeed there was a breach, is not the proximate cause, or a proximate contributing cause, of Ruth’s injuries so as to make Premier liable for those injuries, because Boyd Tunica’s employee, not Premier’s driver, set in motion the chain of events that led to Ruth’s injuries. Had Boyd Tunica’s employee not driven his truck in the front of Premier’s shuttle bus, Ruth would have ridden to her destination with her seat belt unfastened and without incident. Furthermore, as we have stated, it would have been improper under section 63-2-3 to instruct the jury that the non-use of seat belts could be considered as conti’ibutory or comparative negligence. Boyd Tunica offers two rationales as a part of its argument that the statutory prohibition is inapplicable here. First, Boyd Tu-nica posits that notwithstanding the fact that Ruth’s non-use of her seat belt could not have been used to establish that she was at fault or that the non-use caused her injuries, granting instruction P-11 was error because it was not improper for the jury to be instructed that Ruth’s non-use of her seat belt could be considered in determining whether Premier, in not following its own policies, violated its duty of care to her. Second, Boyd Tunica suggests that the prohibition contained in section 63-2-3 does not apply, because the duty was imposed by Premier’s internal policy, not by statute.

¶ 32. With respect to Boyd Tuni-ca’s first point, we note that this argument fails to take into consideration that because of the unique fact situation involved, application of this general evidentiary principle is unavailing. We acknowledge that evidence may be admissible for one purpose while being inadmissible for another. The problem here, however, is that any instruction that would have informed the jury that it could consider Ruth’s non-use of her seat belt as evidence of Premier’s failure to comply with its heightened duty of care to her would also have had to instruct the jury that it could not consider her non-use of seat belts in determining whether she was at fault in causing her injuries and/or whether the non-use of seat belts caused her injuries.

¶ 33. As to Boyd Tunica’s second contention, we point out that it has presented no authority holding that the provisions in Premier’s driver’s guide, particularly the provisions regarding the seat-belt policy, create an exception to the statutory prohibition against considering non-use of a seat-belt as evidence of contributory or comparative negligence. In the absence of such authority, we see no reason to hold that Premier’s voluntary enactment of a seat-belt policy, not required by statute, vitiates the protection that would be in place were its passengers required by statute to wear seat belts. In other words, we see no reason why Premier should be punished for insisting that its passengers wear seat belts, even though they are not re-quired by law to do so. Therefore, we find that the trial court did not err in giving instruction P-11.

2. Motion for a New Trial

¶ 84. An appellate court “will only reverse the denial of a motion for a new trial when the trial court has abused its discretion.” Davis v. Wal-Mart Stores, Inc. 724 So.2d 907, 910 (¶ 11) (Miss.1998) (citing Daniels v. Wal-Mart Stores, Inc., 634 So.2d 88, 94 (Miss.1993)).

¶ 35. Boyd Tunica asserts that the trial judge erred in failing to grant its motion for a new trial because the trial court’s “reversal of its pretrial rulings resulted in unfair and substantial prejudice.” Specifically, Boyd Tunica argues that it “concentrated its defense on Premier’s failure to enforce its internal safety regulations.”

¶ 36. We find that Boyd Tunica is not entirely correct in asserting that the trial court reversed its pretrial ruling regarding whether evidence of seat-belt use and non-use would be allowed, subject to a cautionary instruction that the evidence could not be used to assess fault to Ruth as the party responsible for the cause of her injuries. Our review of the record reveals that the trial judge’s initial ruling was tentative and remained so throughout the trial. Therefore, it is puzzling to this Court how Boyd Tunica can assert that it concentrated its defense on Premier’s alleged violation of its internal regulations “in reliance on the circuit court’s ruling before the commencement of trial” when the trial judge clearly asserted that his ruling was tentative in nature. Furthermore, Boyd Tunica has failed to proffer what it would have done differently had it known what the trial judge’s final ruling would be. We find no merit to this issue.

¶ 37. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., BARNES, ISHEE AND ROBERTS, JJ., CONCUR. GRIFFIS AND MAXWELL, JJ., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . Although Ms. Latting is referred to in the record as Ruth Beasley, we have chosen to shorten the designation to Ruth. Thus, all of our references will be to Ruth, not Ruth Beasley or Latting.

      . Subsequent to the filing of the appeal and the appellate briefs in this case, Ruth and Boyd Tunica "entered into an agreement whereby Ruth Beasley Latting released [Boyd Tunica] from all her claims arising from the subject incident and assigned to [Boyd Tuni-ca] all her rights and claims against [Premier].” Although Premier is listed as the appel-lee in this appeal, there is no explanation in the record as to why this is so because the notice of appeal designates Ruth as the party against whom the appeal is lodged.

      .Boyd Tunica lists three issues. However, two of the issues involve the refusal of the circuit court to grant its requested jury instructions.

      . The judgment provides, in part, that “judgment shall be entered in favor of Premier Transportation Services, Inc., and the [c]om-plaint shall be dismissed with prejudice as to Premier Transportation Services, Inc.”

      . Although this Court granted Boyd Tunica’s motion, it did not direct that the caption be changed to substitute Boyd Tunica for Premier.

      . Rule 4(c) of the Mississippi Rules of Appellate Procedure provides: “If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this rule, whichever period last expires.”

      . Boyd Tunica asserts in its brief that Premier acted as a common carrier; however, its proposed jury instruction D-2 refers to Premier as a carrier of passengers for hire.

      . Although we have quoted instruction D-2 in its entirety, for the sake of convenience, we quote it again here:
      The Court instructs the jury that under the law of the State of Mississippi, a carrier or passenger for hire is required to exercise the highest degree of care and diligence for the safety of its passengers. If you find by a preponderance of the evidence that Premier Transportation negligently operated its shuttle bus which the driver, Frank Wee-den, drove with the knowledge that Ruth Beasley was a front seat passenger who was not wearing a seatbelt, and that this was contrary to the driver guidelines of Premier Transportation, Inc. and that further by operating the vehicle while Ruth Beasley was not wearing a seatbelt, defendant transportation, through its driver, failed to exercise the highest degree of care and diligence for the safety of its passengers including Ms. Beasley, you should find for the plaintiff Ruth Beasley against him [sic].

      . Under the jurisprudence of this state, an appellate court is not required to consider an issue if the proponent of the issue fails to provide some authority in support of his position. Grenada Living Ctr., LLC v. Coleman, 961 So.2d 33, 37 (¶ 14) (Miss.2007).