Preamble

We, the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

RESEARCH REFERENCES

Am. Jur.

16 Am. Jur. 2d, Constitutional Law § 62.

JUDICIAL DECISIONS

1. In general.

As shown by the preamble to the Constitution, the purpose for which the state exists is to promote the peace, happiness and prosperity of its citizens. Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 1938 Miss. LEXIS 53 (Miss. 1938).

Article I The Congress

§ 1. Legislative Powers Vested in Congress

All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

RESEARCH REFERENCES

Am. Jur.

16 Am. Jur. 2d, Constitutional Law §§ 214 et seq.

CJS.

C.J.S. Census §§ 4, 11.

C.J.S. Commerce §§ 19, 37-50, 68-73, 99, 103, 111, 143, 145.

C.J.S. Constitutional Law §§ 54-59, 111 to 168, 188, 191, 217, 218, 228-263, 429-431.

C.J.S. Habeas Corpus §§ 2-7, 144, 145.

C.J.S. Internal Revenue § 4.

C.J.S. Judges §§ 95-98, 112, 113.

C.J.S. Statutes §§ 407-431.

C.J.S. United States §§ 16-46, 156, 158.

§ 2. House of Representatives

1. The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.

2. No person shall be a Representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.

3. [Representatives and direct taxes shall be apportioned among the several states which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons.] The actual enumeration shall be made within three years after the first meeting of the congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative, and until such enumeration shall be made, the state of New Hampshire shall be entitled to choose three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

4. When vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies.

5. The House of Representatives shall choose their Speaker and other officers; and shall have the sole power of impeachment.

Editor’s Note —

The clause in the third paragraph enclosed in brackets was amended, as to the mode of apportionment of Representatives among the several states, by the Fourteenth Amendment, § 2, and as to taxes on incomes without apportionment, by the Sixteenth Amendment.

Cross References —

Appointment of Representatives, see USCS Const. Amend. XIV, § 2.

Commencement and end of terms, see USCS Const. Amend. XX, § 1.

Power to fill vacancies in Senate, see USCS Const. Art. II, § 2, cl.

RESEARCH REFERENCES

Am. Jur.

3B Am. Jur. 2d, Aliens and Citizens § 1879.

3C Am. Jur. 2d, Aliens and Citizens § 2271.

16A Am. Jur. 2d, Constitutional Law § 247.

25 Am. Jur. 2d, Elections §§ 11, 20, 21.

26 Am. Jur. 2d, Elections §§ 238, 259.

63C Am. Jur. 2d, Public Officers and Employees § 218.

77 Am. Jur. 2d, United States §§ 8, 9.

§ 3. Senate

1. [The Senate of the United States shall be composed of two Senators from each state, chosen by the Legislature thereof, for six years; and each Senator shall have one vote.]

2. Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one-third may be chosen every second year; [and if vacancies happen by resignation, or otherwise, during the recess of the Legislature of any State, the executive thereof may make temporary appointments until the next meeting of the Legislature, which shall then fill such vacancies.]

3. No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that State for which he shall be chosen.

4. The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.

5. The Senate shall choose their other officers, and also a President Pro Tempore, in the absence of the Vice President, or when he shall exercise the office of President of the United States.

6. The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside; and no person shall be convicted without the concurrence of two-thirds of the members present.

7. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.

Editor’s Note —

The first paragraph and the bracketed portion of the second paragraph were superseded by the Seventeenth Amendment.

Cross References —

Composition and vacancies Senate, see USCS Const. Amend. XVII.

Power of impeachment, House of Representatives, USCS Const. Art. I, § 2, cl 5.

Power of each House to judge qualifications of its own members, USCS Const., Art. I, § 5, cl. 1.

Incapacity and removal of President, see USCS Const. Amend. XXV.

RESEARCH REFERENCES

Am. Jur.

3B Am Jur 2d, Aliens and Citizens § 1879.

3C Am Jur 2d, Aliens and Citizens § 2271.

16A Am Jur 2d, Constitutional Law § 247.

77 Am Jur 2d, United States § 8.

§ 4. Congressional Elections; Sessions of Congress

1. The times, places, and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

2. The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day.

Cross References —

Date for the annual meeting changed to the third day of January, see USCS Const. Amend. XX.

RESEARCH REFERENCES

Am. Jur.

16A Am Jur 2d, Constitutional Law § 222.

25 Am Jur 2d, Elections §§ 3, 5, 10.

26 Am Jur 2d, Elections §§ 230, 267.

JUDICIAL DECISIONS

1. In general.

State supreme court’s interpretation of state statutes to determine whether an election contest was timely filed did not violate the Elections Clause because the deadline already existed, as it was put in place by the state legislature and continued into newest versions of statutes, and the court was resolving ambiguities in the law instead of creating a deadline. McDaniel v. Cochran, 158 So.3d 992, 2014 Miss. LEXIS 535 (Miss. 2014).

§ 5. Legislative Proceedings

1. Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each house may provide.

2. Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.

3. Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either House on any question shall, at the desire of one-fifth of those present, be entered on the journal.

4. Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting.

Cross References —

Qualifications of Representatives, generally, see USCS Const., Art. I, § 2, cl. 2.

Qualifications of Senators, generally, see USCS Const., Art. I, § 3, cl. 3.

RESEARCH REFERENCES

Am. Jur.

26 Am Jur 2d, Elections § 399.

77 Am Jur 2d, United States §§ 3, 8, 15.

CJS.

C.J.S. Armed Services §§ 1-41, 341-348.

C.J.S. Commerce §§ 2, 5.

C.J.S. Counterfeiting §§ 2, 8.

C.J.S. Customs Duties § 1.

C.J.S. District of Columbia §§ 9-12.

C.J.S. Federal Courts §§ 3-4.

C.J.S. Internal Revenue § 4.

C.J.S. International Law §§ 2 to 5.

C.J.S. Patents §§ 1, 6-9.

C.J.S. Postal Service and Offenses Against Postal Laws §§ 2, 3.

C.J.S. Statutes §§ 12, 13, 41, 43.

C.J.S. United States §§ 16-33, 153-162.

C.J.S. War and National Defense §§ 2, 16, 17-20, 23.

Lawyers’ Edition.

Federal court’s power to determine election or qualifications of member of legislative body. 17 L Ed 2d 911.

§ 6. Members

1. The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place.

2. No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time; and no person holding any office under the United States, shall be a member of either House during his continuance in office.

Editor’s Note —

The text appearing after the semicolon in the second sentence of the first paragraph is popularly known as the “Speech or Debate Clause.”

The second paragraph is popularly known as the “Incompatibility Clause” and also as the “Ineligibility Clause.”

Cross References —

Change in compensation of members of Congress, effective date, see USCS Const. Amend. XXVII.

RESEARCH REFERENCES

Am. Jur.

5 Am Jur 2d, Arrest § 108.

16A Am Jur 2d, Constitutional Law § 258.

23 Am Jur 2d, Depositions and Discovery § 57.

62A Am Jur 2d, Privacy § 215.

62B Am Jur 2d, Process § 16.

63C Am Jur 2d, Public Officers and Employees §§ 64-66, 68-78, 271-279, 281, 284-298, 433, 435-439.

77 Am Jur 2d, United States §§ 5, 6, 7.

Lawyers’ Edition.

United States Senators’ and Representatives’ privileges and immunities relating to arrest and to speech or debate, under Art. 1, cl. 1 of Federal Constitution. 23 L. Ed. 2d 915.

Construction and application of speech or debate clause of United States Constitution (Art I, § 6, Cl 1)—Supreme Court Cases. 60 L Ed 2d 1166.

§ 7. Bills, Orders, Resolutions, or Votes

1. All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills.

2. Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two-thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two-thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

3. Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.

Editor’s Note —

The first paragraph is popularly known as the “Origination Clause.”

The second paragraph, often together with the third paragraph, is popularly known as the “Presentment Clause(s).”

In addition, the third paragraph is popularly known as the “Veto Clause” or the “Orders, Resolutions and Votes Clause.”

RESEARCH REFERENCES

Am. Jur.

16A Am Jur 2d, Constitutional Law § 247.

Lawyers’ Edition.

Supreme court’s construction and application of Federal constitution’s appropriations clause (Art I, § 9, cl 7). 110 L Ed 2d 773.

Supreme Court’s construction and application of Federal Constitution’s Art I, § 7, cl 2 and 3, concerning presentment of congressional bills, orders, resolutions, and votes to President and their approval or disapproval (veto) by President. 141 L Ed 2d 825.

§ 8. Powers of Congress.

The Congress shall have Power

1. To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

2. To borrow money on the credit of the United States;

3. To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

4. To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

5. To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

6. To provide for the punishment of counterfeiting the securities and current coin of the United States;

7. To establish post offices and post roads;

8. To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

9. To constitute tribunals inferior to the Supreme Court;

10. To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

12. To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

13. To provide and maintain a navy;

14. To make rules for the government and regulation of the land and naval forces;

15. To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions;

16. To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress;

17. To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by session of particular states, and the acceptance of Congress, become the seat of the Government of the United States, and to exercise like authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;–And

18. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.

Editor’s Note —

Parts of the first paragraph are popularly known as the “Taxation Clause,” the “General Welfare Clause,” the “Spending Clause,” and the “Uniformity Clause.”

Parts of the third paragraph are popularly known as the “Commerce Clause,” the “Interstate Commerce Clause,” the “Indian Commerce Clause,” and the “Dormant Commerce Clause.”

Parts of the fourth paragraph are popularly known as the “Naturalization Clause” and the “Bankruptcy Clause.”

Part of the fifth paragraph is popularly known as the “Coinage Clause.”

The sixth paragraph is popularly known as the “Postal Clause.”

The eighth paragraph is popularly known as the “Patent and Copyright Clause” or variations thereof.

The ninth paragraph is popularly known as the “Inferior Tribunals Clause.”

Part of the tenth paragraph is popularly known as the “Offenses Clause.”

The fifteenth and sixteenth paragraphs are popularly known as the “Militia Clauses.”

The eighteenth paragraph is popularly known as the “Necessary and Proper Clause” or the “Sweeping Clause.”

Cross References —

Apportionment of taxes, see USCS Const., Art. 1, § 2, cl. 3.

Power of Congress to provide for punishment of counterfeiting, USCS Const., Art. 1, § 8, cl. 6.

Articles exported from any state, see USCS Const., Art. 1, § 9, cl. 5.

Right to bear arms, see USCS Const. Amend. 2.

Persons born or naturalized in United States as citizens, generally, USCS Const., Amend. 14, § 1.

Power to lay and collect taxes on incomes, see USCS Const., Amend. 16.

ATTORNEY GENERAL OPINIONS

A school district could make a direct sale of the property to the General Services Administration for use as a United States District Courthouse pursuant to Section 3-5-1, and was not required to follow the procedures and provisions of Sections 37-7-451 et seq. and 37-7-471 et seq., so long as fair market value was obtained for the property. 2000 Miss. Op. Att'y Gen. 171.

RESEARCH REFERENCES

ALR.

State tax in connection with transportation or distribution of oil or gas through pipe lines as affected by commerce clause. 154 A.L.R. 623.

License or excise tax on merchandise brokers or persons performing similar functions as affected by commerce clause. 155 A.L.R. 239.

Regulation of practice of photography. 7 A.L.R.2d 416.

Aircraft operated wholly within state as subject to Federal regulation. 9 A.L.R.2d 485.

Loading or unloading interstate freight in performance of obligation resting upon one other than interstate carrier as interstate carrier as regards local taxation. 10 A.L.R.2d 651.

Validity, construction, and application of statutes or ordinances involved in prosecutions for transmission of wagers or wagering information related to bookmaking. 53 A.L.R.4th 801.

Maps or charts as protected by copyright under Federal Copyright Acts. 4 A.L.R. Fed. 466.

Copyright, under Federal Copyright Act (17 USCS §§ 1 et seq.), in advertising materials, catalogs, and price lists. 5 A.L.R. Fed. 625.

What are proceedings by governmental units to enforce police or regulatory powers which are excepted from operation of automatic stay provisions of Bankruptcy Code of 1978 (11 USCS § 362(b)(4), (5)). 58 A.L.R. Fed. 282.

Construction and application of 18 USCS § 542 prohibiting entry of goods into commerce of United States by means of false statements. 58 A.L.R. Fed. 850.

Artist’s speech and due process right in artistic production which has been sold to another. 93 A.L.R. Fed. 912.

Am. Jur.

2 Am. Jur. 2d, Admiralty §§ 3, 5.

3 Am. Jur. 2d, Agriculture §§ 22, 30.

3A Am. Jur. 2d, Aliens and Citizens § 3.

3B Am. Jur. 2d, Aliens and Citizens § 1940.

3C Am. Jur. 2d, Aliens and Citizens § 2270.

7A Am. Jur. 2d, Automobiles and Highway Traffic § 17.

9 Am. Jur. 2d, Bankruptcy §§ 8-11, 741, 795, 825, 829.

9A Am. Jur. 2d, Bankruptcy §§ 1401-1403, 1522.

9D Am. Jur. 2d, Bankruptcy § 3582.

15 Am. Jur. 2d, Civil Rights §§ 3, 9, 218, 223.

15 Am. Jur. 2d, Commerce § 8-26.

15A Am. Jur. 2d, Civil Service §§ 1-19, 25-27, 31-42, 44, 46, 51, 55, 58, 62, 63, 71, 73, 74, 76-78, 81-85.

15B Am. Jur. 2d, Community Property §§ 4, 5, 220.

16A Am. Jur. 2d, Constitutional Law §§ 226, 247, 343, 399.

18 Am. Jur. 2d, Copyright and Literary Property §§ 1, 19.

18A Am. Jur. 2d, Corporations § 157.

20 Am. Jur. 2d, Counterfeiting § 2.

21 Am. Jur. 2d, Criminal Law § 445.

21A Am. Jur. 2d, Custom Duties and Import Regulations §§ 6, 7, 8, 16.

24 Am. Jur. 2d, District of Columbia §§ 1, 21.

25 Am. Jur. 2d, Elections § 105.

26 Am. Jur. 2d, Eminent Domain §§ 8, 20, 100.

27 Am. Jur. 2d, Energy and Power Sources § 146.

32A Am. Jur. 2d, Federal Courts §§ 583, 980.

35 Am. Jur. 2d, Federal Tax Enforcement § 1009.

35A Am. Jur. 2d, Fires § 1.

35A Am. Jur. 2d, Food § 5.

36 Am. Jur. 2d, Foreign Corporations §§ 199, 202, 204, 218, 319, 386, 429.

41 Am. Jur. 2d, Indians; Native Americans §§ 33, 37, 183, 198.

42 Am. Jur. 2d, Injunctions § 61.

42 Am. Jur. 2d, Insolvency § 7.

44B Am. Jur. 2d, Insurrection § 2.

45 Am. Jur. 2d, Intoxicating Liquors §§ 19, 30, 34.

45A Am. Jur. 2d, Job Discrimination § 19.

50 Am. Jur. 2d, Levees and Flood Control § 3.

54A Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices §§ 709, 777, 792, 825.

57A Am. Jur. 2d, Negligence § 696.

60 Am. Jur. 2d, Patents §§ 1, 135, 155.

63B Am. Jur. 2d, Product Liability § 494.

64 Am. Jur. 2d, Public Securities and Obligations § 34.

64 Am. Jur. 2d, Public Works and Contracts §§ 4, 20.

65 Am. Jur. 2d, Receivers § 95.

67B Am. Jur. 2d, Sales and Use Taxes § 154.

70 Am. Jur. 2d, Shipping § 41.

77 Am. Jur. 2d, United States §§ 30, 33.

78 Am. Jur. 2d, War §§ 9, 10, 74.

78 Am. Jur. 2d, Waters §§ 3, 17.

Lawyers’ Edition.

Statute or ordinance regulating or prohibiting advertising as unconstitutional burden on interstate commerce–federal cases. 10 L Ed 2d 1386.

Commerce clause of Federal Constitution as violated by state or local regulation or prohibition affecting business of selling, distributing, packaging, packing, labeling, or processing food intended for human consumption–Supreme Court cases. 25 L Ed 2d 846.

Validity, under commerce clause of Federal Constitution, of state tolls or taxes on, or affecting, interstate or foreign air carriers or passengers. 31 L Ed 2d 975.

Validity, under commerce clause of Federal Constitution, of state gross receipts or income taxes involving interstate transactions–Supreme Court cases. 34 L Ed 2d 749.

Supreme Court’s views as to constitutionality of state or municipal regulation of peddlers, drummers, canvassers, and the like. 48 L Ed 2d 917.

Constitutionality of state laws which discriminate against nonresidents or aliens as to fishing or hunting rights. 52 L Ed 2d 824.

Validity, under commerce clause of Federal Constitution, of state restrictions on interstate movement of goods, products, and natural resources originating from within state–Supreme Court cases. 71 L Ed 2d 890.

Validity, under commerce clause of Federal Constitution, of state statutes regulating securities transactions–Federal cases. 73 L Ed 2d 1454.

Validity, under Federal Constitution, statutes, and treaties, of state or local tax as affected by its imposition on Indians, their property or activities, or in connection with an Indian reservation–Supreme Court cases. 73 L Ed 2d 1506.

Supreme Court’s views as to validity of particular state and local taxes on federal securities and obligations. 74 L Ed 2d 1155.

Supreme Court’s views as to constitutionality of federal tax legislation under uniformity clause of Article I § 8, clause 1 of Federal Constitution.76 L. Ed. 2d 868.

Validity of federal regulation of wage rates and hours of service as affected by commerce clause of Federal Constitution (Art I, § 8, cl. 3). 83 L Ed 2d 1163.

State regulation or taxation of alcoholic beverages as violating commerce clause of Federal Constitution. 90 L Ed 2d 1109.

Taxation: Supreme Court’s views as to whether federal statute unconstitutionally delegates Congress power. 104 L. Ed. 2d 1099.

Supreme court’s construction and application of federal constitution’s militia clauses (Art I, § 8, cl. 15 and 16), allocating power over militia between congress and states. 110 L. Ed. 2d 738.

Supreme Court’s views as to when books or other written or printed materials are copyrightable under federal law. 113 L. Ed. 2d 771.

Validity, under Federal Constitution, of state or local sales or use tax provisions requiring one person to collect tax imposed upon another–Supreme Court cases. 119 L. Ed. 2d 629.

Supreme Court’s views as to extent of states’ regulatory powers concerning or affecting intoxicating liquors, under Federal Constitution’s Twenty-First Amendment.134 L Ed 2d 1015.

Federal-law aspects of government regulation, on grounds assertedly related to users’ health, of tobacco and tobacco products–Supreme Court cases. 146 L Ed 2d 1007.

Power of Indian tribe, nation, or band to impose tax on non-Indians–Supreme Court cases. 149 L Ed 2d 1211.

Supreme Court’s construction and application of provision in Federal Constitution’s Art I, § 8, cl. 8 authorizing Congress to provide “for limited Times” copyright and patent protection. 154 L Ed 2d 1185.

Supreme Court’s views as to Congress’ power under spending clause in Federal Constitution’s Art I, § 8, cl. 1. 158 L. Ed. 2d 1131.L. Ed.

Supreme Court’s views as to validity, construction, and application of Truth in Lending Act (TILA), as amended (15 USCS §§ 1601 et seq.). 160 L Ed 2d 1141.

Supreme Court’s views as to validity, construction, and application of 28 USCS § 1367, concerning supplemental jurisdiction of federal courts. 162 L Ed 2d 1031.

Federal Arbitration Act (FAA) (9 U.S.C.S. § 1 et seq.) as pre-empting state law–Supreme Court cases. 169 L Ed 2d 995.

Law Reviews.

Turner, Solid Waste Flow Control: The Commerce Clause and Beyond, 19 Miss C.L. Rev. 53 (Fall, 1998).

Separation of Powers at the State Level, Part II: Service in a Civilian Public Office and in the National Guard, 74 Miss. L.J. 47, Fall, 2004.

Recent Decision: Constitutional Law—The Dormant Commerce Clause and the Twenty-First Amendment—Reconciling the Two Constitutional Provisions to Allow The Direct Shipment of Wine, 75 Miss. L.J. 619, Winter, 2006.

Constitutional Limits on State Taxation of a Nonresident Trustee: Gavin Misinterprets and Misapplies Both Quill and McCulloch, 76 Miss. L.J. 1, Fall, 2006.

Denning, Is the Dormant Commerce Clause Expendable? A Response to Edward Zelinsky. 77 Miss L.J,. 623, (Winter 2007).

Zelinsky, The Incoherence of Dormant Commerce Clause Nondiscrimination: A Rejoinder to Professor Denning. 77 Miss L.J. 653, (Winter 2007).

JUDICIAL DECISIONS

1. In general.

2. Burden upon interstate commerce.

3. Incident to interstate commerce.

4. Law governing.

5. Intrastate activities of foreign corporations.

6. Carriers, generally.

7. Telegraph and telephones, generally.

8. Fish and game laws.

9. Workers’ compensation.

10. Service of process.

11. Letting of public contracts.

12. Taxation–In general.

13. – Sales and use taxes.

14. – Income taxes.

15. – Carriers, taxation.

16. – Telegraph and telephones, taxation.

17. – Gas and petroleum products, taxation.

18. – Miscellaneous taxes.

19. Bankruptcy laws.

20. Post offices and post roads.

21. Copyright laws.

22. Regulation of land and naval forces.

1. In general.

The commerce clause of Constitution does not operate to commit to federal courts or withhold from state court, jurisdiction of all suits relating to regulation, or attempted regulation, of interstate commerce. Southern Bus Lines, Inc. v. Amalgamated Ass'n of Street, etc., 205 Miss. 354, 38 So. 2d 765, 1949 Miss. LEXIS 435 (Miss. 1949).

Legislation by Congress under the commerce clause, and administrative orders made in pursuance to such legislation, are controlling both in the state and the Federal courts. Stoner & Co. v. Blocton Export Coal Co., 135 Miss. 390, 100 So. 5, 1924 Miss. LEXIS 42 (Miss. 1924).

The commerce clause was designed to prevent each state from legislating with reference to its own interest regardless of the interest of others, and should be so construed as to accomplish that end, and should be limited to that. Stone v. Yazoo & Miss. V. Ry., 62 Miss. 607, 1885 Miss. LEXIS 120 (Miss. 1885).

Not every state action which may incidentally or consequentially affect interstate commerce may be held void. Stone v. Yazoo & Miss. V. Ry., 62 Miss. 607, 1885 Miss. LEXIS 120 (Miss. 1885).

2. Burden upon interstate commerce.

Miss. Code Ann. §27-7-15(4)(i) violated the dormant commerce clause under the internal consistency test because a taxpayer’s dividend income from in-state subsidiaries was excluded from income, while such income from out-of-state subsidiaries was not, as the income had not already borne a tax under the statute, resulting in malapportionment. Miss. Dep't of Revenue v. AT&T Corp., 202 So.3d 1207, 2016 Miss. LEXIS 448 (Miss. 2016).

Miss. Code Ann. §27-70-5 (2010) violated the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, as it was internally inconsistent since: (1) if another state enacted an identical law and a distributor obtained cigarettes in Mississippi for sale outside of Mississippi, then Mississippi would impose a fee on a transaction and the other state would impose a fee on a transaction; (2) if the cigarettes acquired by the Mississippi distributor were sold intrastate, they would be subject to only one fee; and (3) if another state enacted an identical statute, interstate commerce would bear a burden that intrastate commerce would not. Commonwealth Brands v. Morgan, 110 So.3d 752, 2013 Miss. LEXIS 141 (Miss. 2013).

The State Oil and Gas Board requirement that an interstate pipeline company take ratably the natural gas produced from a common source of supply was not an impermissible burden on interstate commerce under Article 1, § VIII. Transcontinental Gas Pipeline Corp. v. State Oil & Gas Bd., 457 So. 2d 1298, 1984 Miss. LEXIS 1869 (Miss. 1984), rev'd, 474 U.S. 409, 106 S. Ct. 709, 88 L. Ed. 2d 732, 1986 U.S. LEXIS 47 (U.S. 1986).

Mississippi Board of Health Regulation, excluding milk from another state unless such other state accepted Mississippi milk on a reciprocal basis, unduly burdened interstate commerce and could not be justified either as a permissible exercise of state power in maintaining health standards, particularly since such milk was excluded regardless of whether it met health standards, or as a free trade provision promoting trade between the states. Great Atlantic & Pacific Tea Co. v. Cottrell, 424 U.S. 366, 96 S. Ct. 923, 47 L. Ed. 2d 55, 1976 U.S. LEXIS 91 (U.S. 1976).

The Mississippi Milk Products Sales Act (Code 1942 §§ 4560-101 et seq., Laws, 1960, ch 156) is not unconstitutional as a burden upon interstate commerce. State ex rel. Patterson v. Pure Vac Dairy Prods. Corp., 251 Miss. 457, 170 So. 2d 274, 1964 Miss. LEXIS 364 (Miss. 1964).

In an action for personal injuries sustained in Louisiana, contentions of a Georgia corporation, operating motor freight lines along a highway through the coastal counties of Mississippi, including the county of plaintiff’s residence, and maintaining an agency and warehouse in Mississippi to solicit business and to facilitate its interstate business, that maintenance of the action against it in Mississippi would create an undue burden on interstate commerce in violation of the Federal Constitution, arising from the inconvenience of requiring the attendance of witnesses from outside the state of Mississippi was untenable since there could arise no conclusive presumption of an undue burden on interstate commerce from such circumstance. M. & A. Motor Freight Lines, Inc. v. Villere, 190 Miss. 848, 1 So. 2d 788, 1941 Miss. LEXIS 100 (Miss. 1941).

3. Incident to interstate commerce.

A statute making the sale of malt liquors unlawful does not, in invalidating a contract between a non-resident manufacturer and a local dealer for the exclusive right to make local sales involve the denial right of any incident to interstate commerce where such agreement contained no such suggestion that the contemplated resales were to be made in the original imported packages. Purity Extract & Tonic Co. v. Lynch, 226 U.S. 192, 33 S. Ct. 44, 57 L. Ed. 184, 1912 U.S. LEXIS 2145 (U.S. 1912).

4. Law governing.

In an action for death of a railroad employee, earnings or income of deceased from business other than employment with defendant held entitled to be considered in determining damages, as against the contention that earnings having no relation to interstate commerce are not within the legislative power of Congress. Illinois C. R. Co. v. Humphries, 174 Miss. 459, 164 So. 22, 1935 Miss. LEXIS 60 (Miss. 1935).

5. Intrastate activities of foreign corporations.

Where business of foreign corporation is interstate in nature, state may not burden such business with state qualification requirements unless business of corporation includes distinct and separable intrastate focus, or corporation has “localized” its business within state. Radio WHKW, Inc. v. Yarber, 838 F.2d 1439, 1988 U.S. App. LEXIS 3068 (5th Cir. Miss. 1988).

By contributing to unitary interstate transaction, radio station’s remote broadcasting activities fell within governance, and hence protections, of commerce clause. Remote broadcasting from Mississippi area entailed transmission of live, promotional messages from premises of advertisers in Mississippi to Alabama station, from which messages were rebroadcast via FCC licensed interstate transmitter to listeners in Alabama and Mississippi. Such remote broadcasting is inseparable from underlying interstate sale of air time. Radio station’s remote broadcasting from Mississippi was not localization where (1) only a single commercial transaction relating to remote broadcasts could be identified, and that was sale of air time to advertiser; (2) remote radio transmissions directly involved the delivery of services across state lines, and (3) services were essential to and inseparable from underlying interstate sales transactions themselves. Radio WHKW, Inc. v. Yarber, 838 F.2d 1439, 1988 U.S. App. LEXIS 3068 (5th Cir. Miss. 1988).

Maintenance by Alabama radio station of substantial sales force in Mississippi is insufficient to establish either localization or distinct and separable business activity within Mississippi. Constitutional right to transact business in interstate commerce without obstruction from state regulation includes right to search out business opportunities. Radio WHKW, Inc. v. Yarber, 838 F.2d 1439, 1988 U.S. App. LEXIS 3068 (5th Cir. Miss. 1988).

Alabama radio station’s contractual relations with Mississippi merchants and citizens as business consumer did not support decision of localization where record indicated that all radio station’s contacts with Mississippi businesses and citizens related to its sales operation. Foreign corporation must enjoy same access to domestically-provided goods and services required to complete its interstate business as is enjoyed by domestic corporations. Radio WHKW, Inc. v. Yarber, 838 F.2d 1439, 1988 U.S. App. LEXIS 3068 (5th Cir. Miss. 1988).

Because Alabama radio station’s business activities within state of Mississippi demonstrated pattern of unitary interstate transactions rather than of localized or separable intrastate focus, denial of access to Mississippi courts imposed impermissible burden on interstate commerce. Radio WHKW, Inc. v. Yarber, 838 F.2d 1439, 1988 U.S. App. LEXIS 3068 (5th Cir. Miss. 1988).

A statute prohibiting any corporation from owning or operating any cotton gin where such corporation is interested in the manufacture of cottonseed oil or cottonseed meal does not, as applied to a nonresident corporation operating cotton gins in Mississippi from which it ships all of its cottonseed which may be purchased in connection with its ginning operation to its oil mill in its own state, violate the commerce clause. Crescent Cotton Oil Co. v. Mississippi, 257 U.S. 129, 42 S. Ct. 42, 66 L. Ed. 166, 1921 U.S. LEXIS 1325 (U.S. 1921).

A state statute making it a misdemeanor for an agent of a foreign insurance company which has not complied with the laws of the state, to come into the state and adjust a loss for such company, does not violate the commerce clause. Moses v. State, 65 Miss. 56, 3 So. 140, 1887 Miss. LEXIS 14 (Miss. 1887), writ of error dismissed, 145 U.S. 647, 12 S. Ct. 985, 36 L. Ed. 851, 1891 U.S. LEXIS 3095 (U.S. 1891).

6. Carriers, generally.

Whether the shipment of oil from a gathering point to railroad loading racks, both points being in the same state, is intrastate or interstate transportation, is a federal question, which the Supreme Court of the United States decides for itself from the undisputed facts in the record. Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 69 S. Ct. 1264, 93 L. Ed. 1613, 1949 U.S. LEXIS 2952 (U.S. 1949).

Code 1942 § 7785, requiring segregation of races on common carriers, referred to in a case involving the question whether a similar statute of Virginia violated the commerce clause. Morgan v. Virginia, 328 U.S. 373, 66 S. Ct. 1050, 90 L. Ed. 1317, 1946 U.S. LEXIS 3039 (U.S. 1946).

Separate accommodations for white and colored passengers may be required of railroads without violating the commerce clause. Louisville, N. O. & T. R. Co. v. Mississippi, 133 U.S. 587, 10 S. Ct. 348, 33 L. Ed. 784, 1890 U.S. LEXIS 1935 (U.S. 1890).

The state may require an interstate railroad to abolish at own expense highway grade crossing, without regard to financial ability, if reasonably required by public safety. New Orleans & N.E.R. Co. v. State Hwy. Comm'n, 164 Miss. 343, 144 So. 558, 1932 Miss. LEXIS 251 (Miss. 1932).

An attachment proceeding against a nonresident interstate railroad in which traffic balances due defendant from other interstate railroads were impounded does not unlawfully burden interstate commerce. Clark v. Louisville & N. R. Co., 158 Miss. 287, 130 So. 302, 1930 Miss. LEXIS 51 (Miss. 1930).

The attachment of railway cars which came into the possession of a railroad company in interstate commerce, does not unconstitutionally burden such commerce. Illinois C. R. Co. v. Terry, 137 Miss. 371, 102 So. 391, 1924 Miss. LEXIS 232 (Miss. 1924).

An order of the State Railroad Commission made in the exercise of its discretionary authority, requiring a railway company to stop its interstate mail trains at a specified county seat, unconstitutionally interferes with interstate commerce where proper and adequate railway passenger facilities are otherwise afforded station. Mississippi R. Com. v. Illinois C. R. Co., 203 U.S. 335, 27 S. Ct. 90, 51 L. Ed. 209, 1906 U.S. LEXIS 1595 (U.S. 1906).

The state railroad commission may fix rates for intrastate transportation, so long as there is no discrimination against persons or property from other states. Stone v. Yazoo & Miss. V. Ry., 62 Miss. 607, 1885 Miss. LEXIS 120 (Miss. 1885).

Power to establish and regulate ferries is not taken from the states by the commerce clause. Marshall v. Grimes, 41 Miss. 27, 1866 Miss. LEXIS 2 (Miss. 1866), overruled, Helena-Glendale Steam Ferry Co. v. State, 101 Miss. 65, 57 So. 362, 1911 Miss. LEXIS 99 (Miss. 1912).

The sale, mortgage, and hypothecation of United States vessels employed in foreign or interstate commerce and the recording necessary to the validity of such instruments may be regulated by Congress under the commerce clause. Shaw v. McCandless, 36 Miss. 296, 1858 Miss. LEXIS 97 (Miss. 1858).

7. Telegraph and telephones, generally.

The provision of the state constitution which declares telegraph companies to be common carriers and subject to liability as such does not conflict with the commerce clause. Postal Tel. & Cable Co. v. Wells, 82 Miss. 733, 35 So. 190, 1903 Miss. LEXIS 193 (Miss. 1903).

Semble, that a state statute imposing a penalty for delay in the transmission of a telegram from one state to another would be an unconstitutional interference with interstate commerce, but that a statute penalizing delay in delivery by the office of destination would not. Marshall v. Western Union Tel. Co., 79 Miss. 154, 27 So. 614, 1901 Miss. LEXIS 1 (Miss. 1901).

A telegraph company engaged in domestic as well as interstate transmission of messages is subject to such reasonable police regulations as the state may impose. Western Union Tel. Co. v. Mississippi R. Com., 74 Miss. 80, 21 So. 15, 1896 Miss. LEXIS 145 (Miss. 1896).

8. Fish and game laws.

Laws regulating fishing, as applied to persons taking fish with intent to ship them out of the state, do not violate the commerce clause. Ex parte Fritz, 86 Miss. 210, 38 So. 722, 1905 Miss. LEXIS 75 (Miss. 1905).

9. Workers’ compensation.

Since, under the circumstances, the exemption in Code 1942, § 6998-55(c), was inapplicable, the Mississippi Workmen’s Compensation Act applied where an employee, employed in Georgia, sustained disability while operating his employer’s truck upon a Mississippi highway, and received extensive medical treatment in the state for which payment had not been received, notwithstanding the Georgia employer’s contention that the application of the Act would violate the full faith and credit clause of the United States Constitution, constitute an interference with, or impairment of, the right to contract, and interfere with interstate commerce. Mandle v. Kelly, 229 Miss. 327, 92 So. 2d 246, 1957 Miss. LEXIS 303 (Miss. 1957).

10. Service of process.

Statute (Laws 1940 ch 246, 1942 code, §§ 1437-1440) providing for service on nonresidents by service of process on Secretary of State and making provision for reasonable notice and opportunity to defend, as applied to corporate citizen of another state engaged in levy construction work of large proportions in Mississippi, employing many men to operate trucks and other heavy and cumbersome machinery and equipment, is not unconstitutional as burdening interstate commerce where defendant was not engaged in interstate commerce. Sugg v. Hendrix, 142 F.2d 740, 1944 U.S. App. LEXIS 3496 (5th Cir. Miss. 1944).

11. Letting of public contracts.

A statute prohibiting counties from letting contracts for blank books, printed forms, stationery or office supplies to any bidder who is not a bona fide resident of the state actually engaged in the printing business or who, being a nonresident, has not a printing plant in the state, does not violate the commerce clause. State ex rel. Collins v. Senatobia Blank Book & Stationery Co., 115 Miss. 254, 76 So. 258, 1917 Miss. LEXIS 205 (Miss. 1917).

12. Taxation–In general.

The four criteria that a taxing statute must satisfy to withstand a challenge under the commerce clause and due process clause of the United States Constitution are: (1) the tax must be applied to an activity with a substantial nexus with the taxing state; (2) the tax must be fairly apportioned; (3) the tax must not discriminate against interstate commerce; and (4) the tax must be fairly related to services provided by the taxing state; the failure to meet any one prong of the test renders the tax invalid. Tennessee Gas Pipeline Co. v. Marx, 594 So. 2d 615, 1992 Miss. LEXIS 66 (Miss. 1992).

For the purpose of determining the constitutionality of a state tax statute, the Supreme Court of the United States accepts as binding the interpretation given to it by the highest court of the state. Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 69 S. Ct. 1264, 93 L. Ed. 1613, 1949 U.S. LEXIS 2952 (U.S. 1949).

The fact that the imposition of a state tax adds to the cost of interstate commerce is not alone sufficient to invalidate the tax as an interference with such commerce. Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 69 S. Ct. 1264, 93 L. Ed. 1613, 1949 U.S. LEXIS 2952 (U.S. 1949).

The commerce clause in the Federal Constitution affords immunity to property from local taxation when, but only when, it is in transit as interstate or foreign commerce. Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 69 S. Ct. 1264, 93 L. Ed. 1613, 1949 U.S. LEXIS 2952 (U.S. 1949).

A state may require one whose property and business enjoys the protection of local laws to bear its proper share of the expense of state government, where the tax is nondiscriminatory and does not constitute a direct burden on interstate commerce. Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 69 S. Ct. 1264, 93 L. Ed. 1613, 1949 U.S. LEXIS 2952 (U.S. 1949).

A state statute is not invalidated by the commerce clause of the Federal Constitution merely because it imposes a direct tax on the privilege of engaging in interstate commerce. Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 69 S. Ct. 1264, 93 L. Ed. 1613, 1949 U.S. LEXIS 2952 (U.S. 1949).

It is well settled by the Federal Supreme Court that in imposing taxes for state purposes a state is not exercising any power which the Federal Constitution has conferred upon Congress, but it is only when the tax operates to regulate commerce between the states or with foreign nations, to an extent which infringes the authority conferred upon Congress, that the tax exceeds the limitations imposed by the Federal Constitution. State Tax Com. v. Memphis Natural Gas Co., 197 Miss. 583, 19 So. 2d 477, 1944 Miss. LEXIS 325 (Miss. 1944).

The purpose of the commerce clause is to protect interstate commerce from discriminatory state action, but this purpose must be reconciled with the right of the state taxing power to cause interstate commerce to bear its share of state tax burdens to the end that there shall be no discrimination against intrastate commerce. Stone v. York Ice Machinery Corp., 193 Miss. 638, 10 So. 2d 380, 1942 Miss. LEXIS 145 (Miss. 1942).

The present trend of judicial decisions in upholding state tax statutes is in favor of a more liberal construction and holding that unless the tax complained of tends to prohibit interstate commerce or place it at a disadvantage in competition with intrastate commerce, it does not violate the commerce clause of the Federal Constitution, and especially where the tax is not on the commerce but is levied on the right to engage in a local activity for the exercise of which local citizens are required to pay. Stone v. York Ice Machinery Corp., 193 Miss. 638, 10 So. 2d 380, 1942 Miss. LEXIS 145 (Miss. 1942).

The commerce clause does not shield those carrying on interstate and foreign commerce from nondiscriminating state taxation. Stone v. Interstate Natural Gas Co., 103 F.2d 544, 1939 U.S. App. LEXIS 3610 (5th Cir. Miss.), aff'd, 308 U.S. 522, 60 S. Ct. 292, 84 L. Ed. 442, 1939 U.S. LEXIS 16 (U.S. 1939).

Impairment of the commerce power of Congress really arises only if the state by intention or in actual effect regulates commerce by license or other special taxation, or burdens it unduly so as to impede it; or if the state law imposing the tax conflicts with some regulation made by the Congress in its supreme right. Stone v. Interstate Natural Gas Co., 103 F.2d 544, 1939 U.S. App. LEXIS 3610 (5th Cir. Miss.), aff'd, 308 U.S. 522, 60 S. Ct. 292, 84 L. Ed. 442, 1939 U.S. LEXIS 16 (U.S. 1939).

13. – Sales and use taxes.

State sales tax on full price of ticket from taxing state to another state is consistent with Commerce Clause of United States Constitution because sale of interstate transportation services had sufficient nexus to state where ticket was purchased and service originated and tax was properly apportioned, did not discriminate against interstate commerce and was fairly related to services provided by state. Oklahoma Tax Comm'n v. Jefferson Lines, 514 U.S. 175, 115 S. Ct. 1331, 131 L. Ed. 2d 261, 1995 U.S. LEXIS 2418 (U.S. 1995).

The imposition of use and excise taxes pursuant to §27-67-7 et seq. on a pipeline company’s use of natural gas taken from its interstate gas pipeline as fuel for its compressor engines located along the pipeline was permissible under the commerce clause and the due process clause of the United States Constitution since the activity taxed–the consumption of natural gas in compressor stations located in Mississippi–had a sufficient nexus with the State to justify the tax, the tax was fairly apportioned to assess only local activities and did not discriminate against interstate commerce by subjecting interstate taxpayers to a double taxation where similarly situated intrastate taxpayers would be subject to only single taxation, and the tax was fairly related to the benefits provided by the State to the pipeline company. Tennessee Gas Pipeline Co. v. Marx, 594 So. 2d 615, 1992 Miss. LEXIS 66 (Miss. 1992).

An Alabama carpet store did not avail itself of the substantial privilege of carrying on business within Mississippi, so that there was no constitutional basis for a sales tax assessment, where the store’s 2 local carpet installers were independent contractors rather than agents or employees of the store, the local installers received no compensation from the store, and they provided their own equipment and were not subject to the control of the store in the details or final results of their work. Mississippi State Tax Com. v. Bates, 567 So. 2d 190, 1990 Miss. LEXIS 444 (Miss. 1990).

Wholesale markup on liquor sold to federal military installations in Mississippi constituted a sales tax, the legal incident of which rested upon instrumentalities of the United States as the purchasers, and therefore the markup was unconstitutional as a tax imposed upon the United States and its instrumentalities. Since the legal incidence of the tax was upon the United States, the federal immunity with respect to sales of liquor to the two exclusively federal enclaves was preserved by § 107(a) of the Buck Act (4 USCS §§ 105-110). United States v. Tax Comm'n of Mississippi, 421 U.S. 599, 95 S. Ct. 1872, 44 L. Ed. 2d 404, 1975 U.S. LEXIS 120 (U.S. 1975).

Decision on former appeal of same case that Use Tax Law of this state is unconstitutional in its requirement that foreign seller collect and pay use tax on goods sold to Mississippi residents when seller is nondomesticated foreign corporation having no place of business or any agent in this state, its only intrastate activity being sending into state of non-resident solicitors to take orders effective only when approved at home office and sales being completed by delivery of goods to common carrier in foreign state, will be adhered to on subsequent appeal, and case does not become new case because state of Tennessee, from which state goods are shipped, is claimed to have relevant Sales Tax Law; because coming to rest in this state feature of original law has been eliminated; or because two salesmen of seller happen to reside in Mississippi for their own personal convenience and not that of employer, since principles controlling law of case doctrine are more binding upon courts than law of precedent. Stone v. Reichman-Crosby Co., 43 So. 2d 184 (Miss. 1949), cert. denied, 339 U.S. 917, 70 S. Ct. 625, 94 L. Ed. 1342, 1950 U.S. LEXIS 2179 (U.S. 1950).

Non-resident seller engaged exclusively in interstate commerce is neither subject to state’s taxing power nor to state’s jurisdiction to subject seller to personal liability for failure to collect and pay tax levied against citizens of this state. Reichman-Crosby Co. v. Stone, 204 Miss. 122, 37 So. 2d 22, 1948 Miss. LEXIS 350 (Miss. 1948), dismissed, 339 U.S. 917, 70 S. Ct. 625, 94 L. Ed. 1342, 1950 U.S. LEXIS 2179 (U.S. 1950).

Use Tax Law, Chapter 120, Laws of 1942 (Code 1942 §§ 10146-10167), is unconstitutional as to its requirement that a non-resident seller shall collect and pay tax on sales consummated in Tennessee by delivery of property to a common carrier for transportation to purchasers in Mississippi, when the non-resident seller is not doing business in Mississippi and property was sold on orders taken by non-resident salesmen, as it violates the commerce clause by imposing a burden on interstate commerce and denies to seller equal protection and due process of law. Reichman-Crosby Co. v. Stone, 204 Miss. 122, 37 So. 2d 22, 1948 Miss. LEXIS 350 (Miss. 1948), dismissed, 339 U.S. 917, 70 S. Ct. 625, 94 L. Ed. 1342, 1950 U.S. LEXIS 2179 (U.S. 1950).

Laws 1948 ch. 457, amending Code 1942 § 10148, levying Use Tax, by eliminating provision that tax imposed shall not apply to use of article of tangible personal property sold or processed outside of state until transportation is ended and article commingled with property within state does not affect former decision that statute is unconstitutional in its requirement that foreign seller must collect and pay tax on goods sold on orders given to non-resident solicitors, effective only when approved at home office, sales being completed by delivery to common carrier in foreign state by non-domesticated foreign corporation, having no place of business in this state. Reichman-Crosby Co. v. Stone, 204 Miss. 122, 37 So. 2d 22, 1948 Miss. LEXIS 350 (Miss. 1948), dismissed, 339 U.S. 917, 70 S. Ct. 625, 94 L. Ed. 1342, 1950 U.S. LEXIS 2179 (U.S. 1950).

State has right to assess a use tax against its residents for use within state of property which has been transported to them in interstate commerce. Reichman-Crosby Co. v. Stone, 204 Miss. 122, 37 So. 2d 22, 1948 Miss. LEXIS 350 (Miss. 1948), dismissed, 339 U.S. 917, 70 S. Ct. 625, 94 L. Ed. 1342, 1950 U.S. LEXIS 2179 (U.S. 1950).

14. – Income taxes.

Income of a business operating in interstate commerce is not immune from a fairly apportioned state taxation. However, for a state to tax income generated in interstate commerce, the Due Process Clause of the Fourteenth Amendment and the Commerce Clause of the United States Constitution require that the tax must be applied to an activity with a substantial nexus with the taxing state, the tax must be fairly apportioned, the tax must not discriminate against interstate commerce, and the tax must be fairly related to services provided by the taxing state. Marx v. Truck Renting & Leasing Asso., 520 So. 2d 1333, 1987 Miss. LEXIS 2855 (Miss. 1987), overruled in part, Commonwealth Brands v. Morgan, 110 So.3d 752, 2013 Miss. LEXIS 141 (Miss. 2013).

Section 27-65-23, which provides for a 6 percent tax on the gross income of a business which rents “transportation equipment with a situs within or without the State to common, contract or private commercial carriers,” and is taxed on that part of the income derived from use within the State, violates the Due Process Clause of the Fourteenth Amendment and the Commerce Clause of the United States Constitution because the tax is imposed on an activity without a substantial nexus within Mississippi. Marx v. Truck Renting & Leasing Asso., 520 So. 2d 1333, 1987 Miss. LEXIS 2855 (Miss. 1987), overruled in part, Commonwealth Brands v. Morgan, 110 So.3d 752, 2013 Miss. LEXIS 141 (Miss. 2013).

A legislative delegation to the tax commission of the duty to determine the portion of taxable income of a given person or corporation which should be allocated to sources within the state is a delegation of a fact-finding duty, and where the legislature provided the standard to be followed in evaluating the taxpayer’s earned income in Mississippi, as distinguished from its earned income from other sources, such a delegation is not unconstitutional. Columbia Gulf Transmission Co. v. Barr, 194 So. 2d 890, 1967 Miss. LEXIS 1424 (Miss. 1967).

Laws 1934, ch. 120, § 3(1), as amended (Code 1942, § 9222 (1)(2)), and § 11(1)(a), as amended (Code 1942, § 9231(a)), imposing a tax on the net income of a foreign corporation attributable to its activities and ownership of property in Mississippi, although such property is used exclusively in the furtherance of the corporation’s interstate business, do not violate the commerce clause of the Federal Constitution. State Tax Com. v. Memphis Natural Gas Co., 197 Miss. 583, 19 So. 2d 477, 1944 Miss. LEXIS 325 (Miss. 1944).

A tax on net income does not unconstitutionally burden interstate commerce, although such income includes income derived from such commerce. State ex rel. Knox v. Gulf, M. & N. R. Co., 138 Miss. 70, 104 So. 689, 1925 Miss. LEXIS 106 (Miss. 1925).

15. – Carriers, taxation.

An ad valorem tax on leased trucks domiciled in Mississippi did not violate the commerce clause because it was both internally and externally consistent. Thomas Truck Lease, Inc. v. Lee County, 768 So. 2d 870, 1999 Miss. LEXIS 306 (Miss. 1999).

A state license tax for the privilege of operating a cotton warehouse and compress which receives cotton having at the time no ascertainable destination without the state but afterward shipped, upon the orders of holders of warehouse receipts therefor, in interstate commerce, does not impose a forbidden burden on interstate commerce, even though cotton coming to the warehouse by rail is, on being reshipped, given the benefit of a through rate from the point of origin to destination, and the company operating the warehouse and compress has been designated by an interstate rail carrier as its agent to receive the cotton from and deliver it to the railroad and to load and unload cotton upon and from its cars, and the warehouse has been designated by the railroad as a cotton depot. Federal Compress & Warehouse Co. v. McLean, 291 U.S. 17, 54 S. Ct. 267, 78 L. Ed. 622, 1934 U.S. LEXIS 486 (U.S. 1934).

A privilege tax levied on a sleeping car company is for the privilege of doing intra-state business and does not violate the commerce clause. Miller v. Gulf, M. & N. R. Co., 157 Miss. 69, 127 So. 690, 1930 Miss. LEXIS 266 (Miss. 1930).

A statute imposing a privilege tax on railroad companies based upon mileage and gross earnings, without excepting earnings derived from interstate commerce, does not impose an unconstitutional burden upon interstate commerce. New Orleans, M. & C.R. Co. v. State, 110 Miss. 290, 70 So. 355, 1915 Miss. LEXIS 37 (Miss. 1915).

Imposition on sleeping and palace car companies of a privilege tax of $100 and, in addition thereto, 25 cents per car mile, does not violate the commerce clause. Pullman Palace Car Co. v. Adams, 78 Miss. 814, 30 So. 757, 1901 Miss. LEXIS 158 (Miss. 1901), aff'd, 189 U.S. 420, 23 S. Ct. 494, 47 L. Ed. 877, 1903 U.S. LEXIS 1366 (U.S. 1903).

A privilege tax imposed by the state on sleeping car companies carrying passengers from one point to another within the state cannot be deemed an unconstitutional regulation of commerce because of the declaration in the state constitution that sleeping car companies are common carriers and so subject to liability as such where such provision is regarded by the state courts as imposing no obligation on the company to transport local passengers. Pullman Co. v. Adams, 189 U.S. 420, 23 S. Ct. 494, 47 L. Ed. 877, 1903 U.S. LEXIS 1366 (U.S. 1903).

16. – Telegraph and telephones, taxation.

Privilege taxes measured by the number of miles of telegraph line within the state, on the line and on the business carried, does not violate the commerce clause, such taxes being levied for the privilege of doing a domestic business. Postal Telegraph-Cable Co. v. Miller, 155 Miss. 522, 124 So. 434, 1929 Miss. LEXIS 300 (Miss. 1929).

A charge levied by the state upon a foreign telegraph company doing business within the state and also doing interstate business in the form of a franchise tax–but arrived at with reference to, and graduated according to, the value of its property within the state, and in lieu of all other taxes, and held by the highest tribunal of the state to be a just equivalent for other taxes, does not amount to a regulation of interstate commerce nor put an unconstitutional restraint thereon. Stuart v. City of Easton, 156 U.S. 46, 15 S. Ct. 268, 39 L. Ed. 341, 1895 U.S. LEXIS 452 (U.S. 1895).

17. – Gas and petroleum products, taxation.

Where a foreign corporation was engaged in constructing pipelines, and the work was new construction work and pipeline companies furnished right of way and pipe, and the pipelines had not become instrumentalities of interstate commerce, a sales tax imposed upon the foreign corporation was not invalid as a direct burden on interstate commerce. Anderson Bros. Corp. v. Stone, 227 Miss. 26, 85 So. 2d 767, 1956 Miss. LEXIS 653 (Miss. 1956).

A privilege tax, imposed upon an interstate pipeline operator whose operations were wholly and exclusively in interstate commerce, violated the commerce clause of the Federal Constitution and was not proper subject of state taxation. Coleman v. Trunkline Gas Co., 218 Miss. 285, 63 So. 2d 73, 1953 Miss. LEXIS 543 (Miss.), cert. denied, 346 U.S. 824, 74 S. Ct. 41, 98 L. Ed. 349, 1953 U.S. LEXIS 1789 (U.S. 1953).

Transportation of oil from places within the state to destinations outside the state, either by interstate trunk pipelines or railroads, on a continuous journey, constitutes that character of commerce “which the State of Mississippi is prohibited from taxing under the Constitution of the United States.” Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 69 S. Ct. 1264, 93 L. Ed. 1613, 1949 U.S. LEXIS 2952 (U.S. 1949).

State privilege tax, equal to 2 per cent of the gross income of its intrastate business, imposed by Code 1942 §§ 10105 and 10109 upon a foreign pipeline company transporting oil in its pipelines from lease tanks in various oil fields in Mississippi to loading racks adjacent to railroads in such state, does not offend the commerce clause of the Federal Constitution, notwithstanding that while there was no through bill of lading from the point of origin at the field to the destination outside the state, the oil, when delivered to the taxpayer, was accompanied by shipping orders from the producer or owner directing that it be transported to out-of-state destination. Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 69 S. Ct. 1264, 93 L. Ed. 1613, 1949 U.S. LEXIS 2952 (U.S. 1949).

Imposition of franchise tax (Code 1942 § 9314) measured by the value of capital used, invested or employed within the state held not unconstitutionally to burden interstate commerce in the case of an interstate natural gas pipeline company, a portion of whose line passed through the state but which did no local business therein. Memphis Natural Gas Co. v. Stone, 335 U.S. 80, 68 S. Ct. 1475, 92 L. Ed. 1832, 1948 U.S. LEXIS 2808 (U.S. 1948), but see, Western M. R.R. v. Goodwin, 167 W. Va. 804, 282 S.E.2d 240, 1981 W. Va. LEXIS 667 (W. Va. 1981).

Laws 1934, ch. 120, § 3(1), as amended (Code 1942, § 9222), and § 11(1), as amended (Code 1942, § 9231), imposing a tax on the net income derived from the sale by foreign corporation of natural gas at wholesale to a nonresident-corporation doing business in Mississippi, delivered at various points in Mississippi along such corporation’s main pipe line extending from gas field in Louisiana, through Arkansas and Mississippi, and terminating at Memphis, Tennessee, do not contravene the commerce clause of the Federal Constitution. State Tax Com. v. Memphis Natural Gas Co., 197 Miss. 583, 19 So. 2d 477, 1944 Miss. LEXIS 325 (Miss. 1944).

A privilege tax on gasoline neither sold nor distributed in package in which it was shipped from a sister state, but only after it had been transferred therefrom and in broken quantities, held not objectionable as burden on interstate commerce. Treas v. Price, 167 Miss. 121, 146 So. 630, 1933 Miss. LEXIS 88 (Miss. 1933).

The state privilege tax imposed upon foreign corporations selling to distributors in the state, natural gas, piped from another state, after reducing the pressure, unconstitutionally burdens interstate commerce. State Tax Com. v. Interstate Natural Gas Co., 284 U.S. 41, 52 S. Ct. 62, 76 L. Ed. 156, 1931 U.S. LEXIS 460 (U.S. 1931).

18. – Miscellaneous taxes.

Appellants were not entitled to attorney’s fees under 42 U.S.C.S. § 1988, even though they correctly alleged that Miss. Code Ann. 27-70-5 (2010) violated the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, as they had an adequate remedy, which they invoked, declaratory relief under Miss. R. Civ. P. 57; under the Tax Injunction Act, 28 U.S.C.S. § 1341, the constitutionality of a state tax could not be challenged under 42 U.S.C.S. § 1983 in state court if an adequate remedy was available under state law. Commonwealth Brands v. Morgan, 110 So.3d 752, 2013 Miss. LEXIS 141 (Miss. 2013).

Privilege tax (Laws 1944, ch. 137, § 143) imposed on persons taking photographs in the state and developing the same outside the state at a slightly higher rate than that imposed on resident photographers does not violate the commerce clause when construed as a tax only on the person who actually takes the pictures, the tax being payable in every county and municipality wherein he takes photographs. Craig v. Mills, 203 Miss. 692, 33 So. 2d 801, 1948 Miss. LEXIS 315 (Miss. 1948).

The local activity of a foreign corporation, not qualified to do business in the state as such, performed in the installation, adjustment and testing of certain air conditioning systems in buildings located in the state and constituting a substantial part of the performance of the contract for the sale of the machinery and equipment which it manufactured outside the state and shipped into the state in interstate commerce for use in air conditioning such buildings, was subject to the tax imposed by state statute; and the imposition of such tax was not a violation of the interstate commerce clause of the United States Constitution. Stone v. York Ice Machinery Corp., 193 Miss. 638, 10 So. 2d 380, 1942 Miss. LEXIS 145 (Miss. 1942).

Assuming that the mailing of securities from the office of a dealer in Mississippi to the office of a finance company outside the state should be deemed to transact the business of interstate commerce, a tax placed upon doing business of purchasing and acquiring promissory notes, etc., secured by liens, was not a tax on the particular transaction, whether they took place in the state in interstate commerce, or wholly without the state, but the tax is on the privilege of engaging in those activities which were defined in the statute as doing business in the state. C.I.T. Corp. v. Stone, 193 Miss. 344, 7 So. 2d 811, 1942 Miss. LEXIS 85 (Miss.), aff'd, 317 U.S. 591, 63 S. Ct. 66, 87 L. Ed. 484, 1942 U.S. LEXIS 236 (U.S. 1942).

A franchise or excise tax imposed on a foreign corporation, having qualified to do business in the state of Mississippi as such, and owning pipelines and telephone lines in such state, and measured by the amount of capital used, invested or employed within the state, did not violate the commerce clause regardless of whether such corporation was engaged solely in interstate commerce, where such tax was neither discriminatory against foreign corporations or against interstate commerce, the tax being imposed upon business corporations having capital in Mississippi just for being there with their capital and not directly affecting interstate transportation. Stone v. Interstate Natural Gas Co., 103 F.2d 544, 1939 U.S. App. LEXIS 3610 (5th Cir. Miss.), aff'd, 308 U.S. 522, 60 S. Ct. 292, 84 L. Ed. 442, 1939 U.S. LEXIS 16 (U.S. 1939).

Question whether ordinance imposing privilege tax on operator of steamers conducting pleasure excursions was invalid because operator’s steamers were duly licensed by Federal Government to operate excursions on navigable streams could not be determined, where operator offered no evidence on such question. Streckfus Steamers, Inc. v. Kiersky, 174 Miss. 125, 163 So. 830, 1935 Miss. LEXIS 46 (Miss. 1935).

A tobacco tax statute requiring a retailer purchasing from a wholesaler not having permit to present tobacco to wholesaler having permit to have stamps affixed does not burden interstate commerce. Edward Hines Lumber Co. v. Hall, 148 So. 373 (Miss. 1933).

A state privilege tax on express companies does not, as applied to a company doing both an intrastate and an interstate business, unconstitutionally burden interstate commerce. Robertson v. Southeastern Express Co., 130 Miss. 305, 94 So. 210, 1922 Miss. LEXIS 206 (Miss. 1922), aff'd, 264 U.S. 535, 44 S. Ct. 421, 68 L. Ed. 836, 1924 U.S. LEXIS 2534 (U.S. 1924).

A tax of three cents a barrel on oysters packed or canned in the state, or shipped raw by dealers, may constitutionally be applied to oysters taken from the waters of another state. Barataria Canning Co. v. State, 101 Miss. 890, 58 So. 769, 1912 Miss. LEXIS 23 (Miss. 1912).

19. Bankruptcy laws.

The enactment of a Federal bankruptcy law supersedes all state laws and state constitutional provisions on the subject. McRaney v. Riley, 128 Miss. 665, 91 So. 399, 1922 Miss. LEXIS 156 (Miss.), cert. denied, 260 U.S. 727, 43 S. Ct. 90, 67 L. Ed. 484, 1922 U.S. LEXIS 2635 (U.S. 1922).

In the field of bankruptcy, Federal legislation is supreme. Russell v. Cheatham, 16 Miss. 703, 1847 Miss. LEXIS 75 (Miss. 1847).

20. Post offices and post roads.

That a telegraph company secured its right to erect its lines along the post roads in the state from the Federal government does not release it from any and all local police regulation. Western Union Tel. Co. v. Mississippi R. Com., 74 Miss. 80, 21 So. 15, 1896 Miss. LEXIS 145 (Miss. 1896).

21. Copyright laws.

Sale of home videotape recorders to general public does not constitute contributory infringement of copyrights on television programs since there is significant likelihood that substantial numbers of copyright holders who license their work for broadcast on free television would not object to having their broadcasts time-shifted by private viewers; furthermore, plaintiff copyright holders in this case did not demonstrate that time-shifting would cause any likelihood of non-minimal harm to potential market for, or value of, their copyrighted work. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 104 S. Ct. 774, 78 L. Ed. 2d 574, 1984 U.S. LEXIS 19 (U.S. 1984).

22. Regulation of land and naval forces.

Statute providing proceeds of adjusted service certificates should not be subject to attachment, levy, or seizure was passed by Congress under authority of war powers and is binding on State. De Baum v. Hulett Undertaking Co., 169 Miss. 488, 153 So. 513, 1934 Miss. LEXIS 66 (Miss. 1934).

§ 9. Powers Prohibited to United States

1. The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

2. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

3. No bill of attainder or ex post facto law shall be passed.

4. No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.

5. No tax or duty shall be laid on articles exported from any State.

6. No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another: nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another.

7. No money shall be drawn from the Treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.

8. No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.

Editor’s Note —

The second paragraph is popularly known as the “Suspension Clause.”

Parts of the third paragraph are popularly known as the “Bill of Attainder Clause” and the “Ex Post Facto Clause.”

The third paragraph of Article I, § 2, and the fourth paragraph of this section are popularly known as the “Direct Tax Clauses.”

The fourth paragraph has been affected by the Sixteenth Amendment.

The fifth paragraph is popularly known as the “Export Clause.”

The sixth paragraph is popularly known as the “Port Preference Clause.”

Parts of the seventh paragraph are popularly known as the “Appropriations Clause” and the “Statement and Accounts Clause.”

Cross References —

Attainder of treason, see USCS Const. Art. III, § 3, cl. 2.

Apportionment of direct taxes, generally, see USCS Const., Art. I, § 2, cl. 3.

Federal income tax, see USCS Const. Amend. XVI.

Similar limitation of state power concerning ex post facto laws, see USCS Const. Art. I, § 10.

RESEARCH REFERENCES

Am. Jur.

3B Am. Jur. 2d, Aliens and Citizens §§ 1613, 1848.

16A Am. Jur. 2d, Constitutional Law § 247, 689-734.

21A Am. Jur. 2d, Custom Duties and Import Regulations §§ 2, 8.

23 Am. Jur. 2d, Descent and Distribution § 41.

32 Am. Jur. 2d, Federal Courts § 466.

39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies §§ 3, 4, 92.

50 Am. Jur. 2d, Larceny § 62.

77 Am. Jur. 2d, United States § 49.

Lawyers’ Edition.

Writ of habeas corpus ad prosequendum in federal courts—federal cases. 5 L Ed 2d 964.

Necessity of hearing in federal habeas corpus proceedings challenging validity of conviction of crime—Supreme Court cases. 9 L Ed 2d 1246.

Supreme Court’s construction and application of Federal Constitution’s suspension clause (Art I, § 9, cl 2), restricting suspension of privilege of writ of habeas corpus. 135 L Ed 2d 1169.

JUDICIAL DECISIONS

1. Habeas corpus.

2. Ex post facto law.

1. Habeas corpus.

The Supreme Court was authorized to treat a criminal defendant’s appeal from a circuit court’s denial of his motion to dismiss the indictment against him on double jeopardy grounds as an appeal from a denial of a writ of habeas corpus under §11-43-53, or, alternatively, as an application to the Supreme Court for a writ of habeas corpus under §§11-43-7 and11-43-9, since the defendant’s double jeopardy claim went beyond his right not to be convicted in that it involved his constitutional right not to be prosecuted for the offense, and therefore the Supreme Court had jurisdiction of the defendant’s appeal under Art. I § 9 of the United States Constitution and Art. 3 § 21 of the Mississippi Constitution, which guarantee the right of habeas corpus. De La Beckwith v. Mississippi, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

Conditional grant of writ of habeas corpus by federal habeas corpus court simply requires state to release defendant from custody based upon invalid convictions unless he is retried within certain number of days or months; this allows state to retain person in custody pursuant to invalid conviction for this period without releasing him; conditional grant does not prevent state from retrying defendant after expiration of time set in order of court; it only requires that defendant be released from custody on basis of conviction that was vacated; thus, defendant was still properly in custody of State of Mississippi on basis of valid indictment lodged against him and detainers placed on him by other states and jurisdictions. Pruett v. State, 512 So. 2d 689, 1987 Miss. LEXIS 2784 (Miss. 1987).

2. Ex post facto law.

The amendment to Miss. Code Ann. §47-5-138.1 was not an ex post facto law; even though the amended statute held that an offender was not eligible for trusty status if the offender was convicted of trafficking in controlled substances, defendant continued to receive the 10 days for 30 days time benefit under the prior statute. Ross v. Epps, 922 So. 2d 847, 2006 Miss. App. LEXIS 141 (Miss. Ct. App. 2006).

No constitutional prohibition existed on the Mississippi Department of Corrections’ new interpretation of Miss. Code Ann. §99-19-21 where administrative correction of a prior misinterpretation of parole laws did not violate the ex post facto clause; because the Mississippi parole statutes used the word “may” rather than “shall,” prisoners had no constitutionally recognized liberty interest in parole. Snow v. Johnson, 913 So. 2d 334, 2005 Miss. App. LEXIS 257 (Miss. Ct. App. 2005).

5 USCS § 8148(a), which concerns disability benefit eligibility, does not implicate the ex post facto clause of this section or violate the Eighth Amendment. Garner v. United States DOL, 221 F.3d 822, 2000 U.S. App. LEXIS 21105 (5th Cir. Miss. 2000), cert. denied, 532 U.S. 906, 121 S. Ct. 1230, 149 L. Ed. 2d 140, 2001 U.S. LEXIS 2025 (U.S. 2001).

§ 10. Powers Prohibited to States

1. No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts, or grant any title of nobility.

2. No State shall, without the consent of the congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws: and the net produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the Treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.

3. No State shall, without the consent of congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

Editor’s Note —

Parts of paragraph 1 are popularly known as the “Treaty or Alliance Clause”, the “Ex Post Facto Clause” and the “Contracts Clause.”

The part of paragraph 1 dealing with ex post facto laws and the part of paragraph 3 of Article I, § 9, dealing with the same are popularly known as the ‘Ex Post Facto Clauses.”

Paragraph 2 is popularly known as the “Import-Export Clause.”

Parts of paragraph 3 are popularly known as the “Tonnage Clause” and the “Compact Clause.”

Cross References —

Power of Congress as to coinage and money, generally, see USCS Const., Art. I, § 8, cls. 2, 5.

Congress as prohibited from passing bills of attainder or ex post facto laws, USCS Const., Art. I, § 9, cl. 3.

Congress as prohibited from laying tax or duty on articles exported from any state, see USCS Const., Art. I, § 9, cl. 5

United States as prohibited from granting titles of nobility, see USCS Const., Art. I, § 9, cl. 8.

Attainder of treason, see USCS Const. Art. III, § 3, cl. 2.

ATTORNEY GENERAL OPINIONS

The amendment to subsection (1), denying certain offenders eligibility for the Intensive Supervision Program has no effect on the length of incarceration and consequently does not violate the ex post facto clause when applied to those convicted prior to its passage. 2001 Miss. Op. Att'y Gen. 673.

RESEARCH REFERENCES

ALR.

Statute providing for apportionment between lessor and lessee of a tax imposed upon the producer of oil, gas, or other natural production as violation of the constitutional provision against impairment of the obligation of contracts. 160 A.L.R. 980.

Comment note–Tax exemptions and the contract clause. 173 A.L.R. 15.

Constitutionality, construction, and application of statute or ordinance providing for reduction of pension or retirement benefit of public officer or employee because of independent income. 7 A.L.R.2d 692.

Am. Jur.

4 Am. Jur. 2d, Ambassadors, Diplomats and Consular Officials § 1.

7A Am Jur 2d, Automobiles and Highway Traffic § 142.

9 Am. Jur. 2d, Bankruptcy § 11.

9A Am. Jur. 2d, Bankruptcy §§ 1405, 1522.

15A Am. Jur. 2d, Civil Service § 5.

16A Am. Jur. 2d, Constitutional Law §§ 222, 382, 392-394.

16B Am. Jur. 2d, Constitutional Law §§ 689-734, 753-789.

21 Am Jur 2d, Criminal Law § 503.

21A Am Jur 2d, Custom Duties and Import Regulations §§ 1, 153.

23 Am. Jur. 2d, Descent and Distribution § 41.

26 Am. Jur. 2d, Eminent Domain §§ 8, 96.

32A Am. Jur. 2d, Federal Courts § 919.

36 Am. Jur. 2d, Foreign Corporations §§ 174, 185.

39 Am. Jur. 2d, Highways, Streets, and Bridges § 264.

42 Am. Jur. 2d, Insolvency § 3.

44A Am. Jur. 2d, Insurance § 1689.

45 Am Jur 2d, Intoxicating Liquors § 30.

49 Am. Jur. 2d, Landlord and Tenant § 835.

59A Am. Jur. 2d, Partnership § 120.

60 Am. Jur. 2d, Peddlers, Solicitors, and Transient Dealers § 62.

64 Am. Jur. 2d, Public Securities and Obligations § 325.

67B Am Jur 2d, Sales and Use Taxes §§ 9, 10, 146.

70 Am Jur 2d, Shipping § 77.

82 Am. Jur. 2d, Workers’ Compensation § 9.

CJS.

C.J.S. Commerce § 120.

C.J.S. Constitutional Law §§ 409-413, 421-431.

C.J.S. Payment § 10.

C.J.S. States §§ 31-34, 143, 251.

C.J.S. Treaties § 4.

C.J.S. United States § 162.

Lawyers’ Edition.

Effect on state or local taxes of Federal Constitution’s import-export clause (Art I, § 10, cl 2)—Supreme Court cases. 122 L Ed 2d 853.

Supreme Court’s construction and application of Federal Constitution’s Art. I, § 10, cl. 3 provision that no state, without consent of Congress, shall lay any duty of tonnage. 174 L Ed 2d 637.

JUDICIAL DECISIONS

1. State compacts.

2. Bills of credit.

3. Ex post facto laws – In general.

4. – Crimes and offenses, ex post facto laws.

5. – Sentences and punishment, ex post facto laws.

6. Impairment of contract obligations – In general.

7. – Change in judicial decision, impairment of contract obligations.

8. – Changing limitation period, impairment of contract obligations.

9. – Debtor’s exemptions, impairment of contract obligations.

10. – Moratory legislation, impairment of contract obligations.

11. – Tax liability, impairment of contract obligations.

12. – Tax sales, impairment of contractual obligations.

13. – Municipal corporations, impairment of contract obligations.

14. – State grants and contracts, impairment of contract obligations.

15. – Public indebtedness, impairment of contract obligations.

16. – Public office, impairment of contract obligations.

17. – Banks and banking, impairment of contract obligations.

18. – Corporate charter, impairment of contract obligations.

19. – Franchises and privileges, impairment of contract obligations.

20. – Retirement death benefits, impairment of contract obligations.

21. Imposts or duties.

22. Wharfage.

1. State compacts.

Where a parolee was arrested in Mississippi by agreement between Mississippi and sending state, pending his being retaken by authorities of the sending state under the statute which provides that parolee who is in receiving state by agreement between receiving and sending state may be retaken, this did not violate the parolee’s constitutional right. Stone v. Robinson, 219 Miss. 456, 69 So. 2d 206, 1954 Miss. LEXIS 352 (Miss. 1954).

The consent of Congress to a compact between states may be manifested by resolution as well as by formal act. State v. Cunningham, 102 Miss. 237, 59 So. 76, 1912 Miss. LEXIS 49 (Miss. 1912).

Compact between Mississippi and Arkansas, that the jurisdiction of each over criminal offenses shall extend from shore to shore of the Mississippi river, sustained. State v. Cunningham, 102 Miss. 237, 59 So. 76, 1912 Miss. LEXIS 49 (Miss. 1912).

2. Bills of credit.

Warrants on the state treasury, issued by the auditor of public accounts, are not bills of credit within the meaning of this provision. Pagaud v. State, 13 Miss. 491, 1845 Miss. LEXIS 91 (Miss. 1845).

3. Ex post facto laws – In general.

The retroactive application of the 1995 amendment to the statute, which substantively changed the elements of the crime by deleting the requirement of proving that the children were left in destitute and necessitous circumstances and raising the age of the children protected, violated the constitutional prohibition against ex post facto laws. Knowles v. State, 708 So. 2d 549, 1998 Miss. LEXIS 57 (Miss. 1998).

When there is state constitutional entitlement to some due process right, state may not enact legislation to impede that right under ex post facto analysis. Christmas v. State, 700 So. 2d 262, 1997 Miss. LEXIS 246 (Miss. 1997).

Statutes regulating the selection of grand and petit jurors are not ex post facto as applied in the case of one charged with homicide committed before their enactment. Gibson v. Mississippi, 162 U.S. 565, 16 S. Ct. 904, 40 L. Ed. 1075, 1896 U.S. LEXIS 2233 (U.S. 1896).

Retrospective legislation, other than that undertaking to punish as a crime an act which was indifferent at the time of its performance, does not violate the provision against ex post facto laws. Carson v. Carson, 40 Miss. 349, 1866 Miss. LEXIS 76 (Miss. 1866).

4. – Crimes and offenses, ex post facto laws.

Trial court erred in summarily dismissing a prisoner’s motion for post-conviction relief; an evidentiary hearing was necessary to decide whether application of the amended version of Miss. Code Ann. §47-5-138.1 to the prisoner, who had pleaded guilty to the crime of sale and transfer of cocaine, constituted an ex post facto violation. Gray v. State, 13 So.3d 283, 2008 Miss. App. LEXIS 611 (Miss. Ct. App. 2008), cert. denied, 2009 Miss. LEXIS 344 (Miss. July 23, 2009).

Defendant’s conviction for conspiracy to violate Racketeer Influenced and Corrupt Organizations Act (RICO) arising from alleged scheme to defraud Mississippi casino did not violate ex post facto clause to extent that underlying offenses occurred prior to Mississippi’s enactment of statutes that prohibited cheating at gambling games and marking or altering of gaming equipment or devices, given absence of showing that cheating at gambling was legal in Mississippi prior to statutes’ enactment. United States v. Vaccaro, 115 F.3d 1211, 1997 U.S. App. LEXIS 13724 (5th Cir. Miss. 1997), cert. denied, 522 U.S. 1047, 118 S. Ct. 689, 139 L. Ed. 2d 635, 1998 U.S. LEXIS 57 (U.S. 1998).

Prosecution for fondling under amendment to statute of limitations extending limitation period in effect at time of crime was not ex post facto violation; statute of limitations is procedural and does not come within recognized exception creating substantive right as fondling statute is separate from limitations period statute, defendant’s acts were criminal at time of their commission, and defendant was not subjected to longer punishment by prosecution under lengthier limitations period. Christmas v. State, 700 So. 2d 262, 1997 Miss. LEXIS 246 (Miss. 1997).

Section 97-3-95(c) was not applied retroactively to defendant where subsection (c) was added to statute in 1983 to be effective from and after March 29, 1983, and incident giving rise to prosecution occurred in August, 1983. Cantrell v. State, 507 So. 2d 325, 1987 Miss. LEXIS 2478 (Miss. 1987).

An administrative correction of a prior misinterpretation of parole laws is not a change in the law so as to violate the ex post facto clause of the United States or Mississippi Constitutions; even if the correction of a former mistaken interpretation of parole law did reach the level of a change in law, administrative decisions with regard to parole law eligibility are not “laws annexed to the crime when committed.” Taylor v. Mississippi State Probation & Parole Board, 365 So. 2d 621, 1978 Miss. LEXIS 2418 (Miss. 1978).

No indictment may be brought under a statute for an offense committed before the statute was a law. Barton v. State, 94 Miss. 375, 47 So. 521, 1908 Miss. LEXIS 12 (Miss. 1908).

An amendment eliminating a qualifying clause from a statute making it an offense to carry concealed weapons, and fixing a minimum penalty, is, as applied to conduct prior to its enactment, unconstitutional as an ex post facto law. Lindsey v. State, 65 Miss. 542, 5 So. 99, 1888 Miss. LEXIS 41 (Miss. 1888).

5. – Sentences and punishment, ex post facto laws.

After the supreme court remanded defendant’s matter for resentencing and the circuit court resentenced defendant to life imprisonment without the possibility of parole, defendant challenged the applicability of Miss. Code Ann. §99-19-107; however, defendant’s challenge was procedurally barred because defendant failed to raise the issue before the matter was remanded, and further, application of that statute as opposed to Miss. Code Ann. §97-3-21, which was in effect at the time of the commission of the offense, did not violate ex post facto provisions. Foster v. State, 961 So. 2d 670, 2007 Miss. LEXIS 315 (Miss. 2007), overruled in part, Bell v. State, 160 So.3d 188, 2015 Miss. LEXIS 4 (Miss. 2015).

The application of the amended capital sentencing statute, §97-3-21, ameliorated the stark options that were presented to pre-amendment juries, and, therefore, the retroactive application of the statute does not give rise to an illegal ex post facto law. West v. State, 725 So. 2d 872 (Miss. 1998), overruled by Wilson v. State, 194 So.3d 855 (Miss. 2016), to the extent that West improperly changed Section99-19-33 to substitute the word ‘shall‘ for the word ‘may‘ in the first sentence, thereby issuing a holding that would hold trial courts in error for sentencing a defendant under the older of two sentencing statutes.

The amendment of §97-3-21 to include life imprisonment without parole as a possible sentence was ameliorative and not onerous as the amendment did not increase the possible penalty for murder; thus, the application of the amended statute in the prosecution of a defendant for a murder that occurred before the effective date of the amendment did not violate the ex post facto clause of the federal constitution. Tavares v. State, 725 So. 2d 803, 1998 Miss. LEXIS 277 (Miss. 1998).

Application of amendment to state statute which allows decrease in frequency of parole suitability hearings to prisoners who committed their crimes before enactment of statute does not violate Ex Post Facto Clause of United States Constitution. California Dep't of Corrections v. Morales, 514 U.S. 499, 115 S. Ct. 1597, 131 L. Ed. 2d 588, 1995 U.S. LEXIS 3037 (U.S. 1995).

In a capital murder prosecution arising from a murder committed in 1976, the application of §99-19-81 in sentencing the defendant constituted an ex post facto law in violation of Art. I, § X of the United States Constitution and Art. 3, § 16 of the Mississippi Constitution because §99-19-81 was not yet in effect at the time the murder was committed; the defendant should have been sentenced pursuant to §97-3-21, which governed the penalty for capital murder in 1976. Johnston v. State, 618 So. 2d 90, 1993 Miss. LEXIS 181 (Miss. 1993).

A 7-year sentence for armed robbery committed with a knife in 1980 in violation of §97-3-79 was not an unconstitutional application of an ex post facto law, even though §47-7-3 denied eligibility for parole prior to 1982 only when a robbery was committed with the display of a firearm, where the sentencing order merely established that the defendant serve 7 years and made no mention of “mandatory” or “without parole.” Additionally, the sentencing chapter and the parole chapter are separate and distinct; the granting of parole or denial of parole under §47-7-3 is the exclusive responsibility of the state parole board, which is independent of the circuit court’s sentencing authority. Thus, sentencing authority was provided for under §97-3-79, rather than § 47-7-3, and the defendant was not “sentenced” under the parole statute, which was later amended. Mitchell v. State, 561 So. 2d 1037, 1990 Miss. LEXIS 258 (Miss. 1990).

A petitioner who enters a guilty plea to armed robbery pursuant to plea bargain agreement upon erroneous advice of counsel that petitioner will be eligible for earned good time and will be subject to release after serving 7 years of sentence is not subjected to ex post facto law when Mississippi Department of Corrections changes administrative policy to comply with §§47-5-139 and47-7-3, causing petitioner to serve minimum of 10 years. Coleman v. State, 483 So. 2d 680, 1986 Miss. LEXIS 2336 (Miss. 1986).

Defendant’s argument, after being sentenced as a habitual offender to 15 years in prison without eligibility for probation or parole following his conviction for uttering a forged check, that the enhancement statute (§99-19-81) constituted an ex post facto law in violation of the United States Constitution, Art. I, § 10, inasmuch as his prior convictions had occurred before the enhancement statute became effective, was without merit, where defendant’s sentence as a habitual criminal was not to be viewed as either a new jeopardy or an additional penalty for his earlier crimes, but rather, as a stiffened penalty for his latest crime, which was an aggravated offense in that it was a repetitive one. Smith v. State, 465 So. 2d 999, 1985 Miss. LEXIS 1918 (Miss. 1985).

Application of sentencing enhancement statute (§99-19-81) to convicted defendant whose prior convictions occurred before January 1, 1977, date §99-19-81 became effective, does not violate ex post facto clause of United States Constitution. Smith v. State, 465 So. 2d 999, 1985 Miss. LEXIS 1918 (Miss. 1985).

Defendant who committed capital murder and was originally tried prior to enactment of current death penalty statute (§§99-19-101 et seq.) may nonetheless be sentenced to death under that statute, which does not affect substance of capital murder law but merely changes procedure by which capital cases are to be tried. Jordan v. State, 464 So. 2d 475, 1985 Miss. LEXIS 1880 (Miss. 1985), vacated, 476 U.S. 1101, 106 S. Ct. 1942, 90 L. Ed. 2d 352, 1986 U.S. LEXIS 2914 (U.S. 1986).

A defendant convicted of armed robbery after 1977 and sentenced to serve less than 10 years in the penitentiary, and who was therefore not eligible for parole pursuant to §47-7-3, was not subjected to enforcement of an ex post facto law by a policy of the Department of Corrections administratively barring him from earning good time after January, 1981, although good time earned prior to that date was not taken away, notwithstanding the provisions of §47-5-139(7), since the statutory provisions regarding good time remained unchanged, and since administrative interpretation of a clearly worded statute is not a “law” within the scope and contemplation of the ex post facto clauses of the federal and state Constitutions. Tiller v. State, 440 So. 2d 1001, 1983 Miss. LEXIS 2981 (Miss. 1983).

An inmate was properly denied credit for time served upon her original sentence for time spent out of prison on parole prior to its revocation, even though credit is allowed for time spent on work release, which is functionally similar to parole; nor did denying her credit for time served while on parole deprive her of rights secured under the double jeopardy clause, deny her due process of law, or subject her to an ex post facto law. Segarra v. State, 430 So. 2d 408, 1983 Miss. LEXIS 2578 (Miss. 1983).

Where sale of marijuana for which appellant was convicted occurred when maximum penalty for such sale was four years imprisonment or a fine of two thousand dollars, or both, trial court erred in sentencing appellant to a term of ten years and fining him five thousand dollars under provisions of Code 1972, §41-29-139, which did not become effective until after sale in question had occurred; punishment for a crime may not be increased after the crime has been committed under the provisions of Miss. Const. § 16 and U.S. Const. Art. 1 § 10 Cl. 1. King v. State, 304 So. 2d 650, 1974 Miss. LEXIS 1466 (Miss. 1974).

Where a new law gave condemned a choice as to the method of infliction of death penalty, the law was not an ex post facto law as to persons who were sentenced to death before the enactment of statute. Wetzel v. Wiggins, 226 Miss. 671, 85 So. 2d 469, 1956 Miss. LEXIS 448 (Miss.), cert. denied, 352 U.S. 807, 77 S. Ct. 80, 1 L. Ed. 2d 39, 1956 U.S. LEXIS 400 (U.S. 1956).

6. Impairment of contract obligations – In general.

Miss. Const. Art. 3, § 16 and U.S. Const. Art. 1, § 10, cl. 1 were violated when a decision was retroactively applied to releases executed in a personal injury case; the law in effect at the time the releases were executed stated that the release of an agent had no effect on a principal’s vicarious liability. The validity and obligation of a contract could not have been impaired by a court decision altering the construction of the law. Whitaker v. T & M Foods, Ltd., 7 So.3d 893, 2009 Miss. LEXIS 166 (Miss. 2009).

Section 25-11-103(f), which provides that the spouse of a member of the Public Employees’ Retirement System shall be the member’s beneficiary unless the member has designated another beneficiary subsequent to the date of marriage, does not constitute an unreasonable impairment of an employee’s contractual right contrary to the United States and Mississippi Constitutions because it provides protection to those whose spouse fails to redesignate due to “inadvertence” while allowing an employee to make a “conscious decision” to redesignate if he or she does not want his or her spouse to receive the death benefits. Dillon v. Beal, 632 So. 2d 1298, 1994 Miss. LEXIS 113 (Miss. 1994).

A college, consumer of electricity, was not denied due process when it was given an opportunity to be heard (which it utilized fully) in a proceeding in which the public service commission issued a cease and desist order against one utility company which was furnishing service to the college within the certificated area of another utility; nor did the issuance of the order impair the contract between the college and the first utility company, for the contract was not paramount to the legislative authority vested in the commission at the time the contract was made. Ford v. State, 218 So. 2d 707, 1969 Miss. LEXIS 1611 (Miss. 1969).

In an eminent domain action where both a mortgagor and mortgagee were parties defendant it was error to grant an instruction that under Article 1, § 10, of the United States Constitution, no state should enact a law impairing the obligation of prior contracts, for the reason that such an instruction had no place in the action. Mississippi State Highway Com. v. Nixon, 253 Miss. 636, 178 So. 2d 680, 1965 Miss. LEXIS 1022 (Miss. 1965).

Where, under the law of Georgia where the contract was made, the workmen’s compensation carrier was not obligated to pay to any person any benefits under any compensation law except the Georgia Act, the liability of the carrier might not be extended by application of the Mississippi Workmen’s Compensation Act contrary to the express terms of the policy. Mandle v. Kelly, 229 Miss. 327, 92 So. 2d 246, 1957 Miss. LEXIS 303 (Miss. 1957).

Where the circuit court reversed an order of the state oil and gas board integrating all interest in gas under lands in two drilling units as authorized by statute, and where on appeal it was argued that the statute and order violated due process and the impairment of contract clause of the state and federal constitutions, the supreme court must decide the question of constitutionality of statute although the judgment was not based on any constitutional grounds. Superior Oil Co. v. Foote, 214 Miss. 857, 59 So. 2d 85, 1952 Miss. LEXIS 524 (Miss. 1952).

The constitutional provision that “laws impairing the obligation of contract shall not be passed” is qualified by proper exercise of the police power of the state. Superior Oil Co. v. Foote, 214 Miss. 857, 59 So. 2d 85, 1952 Miss. LEXIS 524 (Miss. 1952).

Where on former appeals, terminating in a decision by the Federal Supreme Court, the point raised by demurrer to insurer’s plea involved the question whether a provision in a fidelity bond requiring any claim thereunder to be made within 15 months after the termination of the suretyship, was subject to the law of Tennessee where the contract was made at a time when the insured was then located in Tennessee, or subject to the laws of Mississippi, to which insured had removed and where the defalcation occurred, and resulted in a determination that the laws of Tennessee governed, such determination did not preclude subsequent litigation as to the effect of such provision under Tennessee decisions as being a condition precedent to liability of the insurer or merely a postponement of the right to sue. Hartford Acci. & Indem. Co. v. Delta & Pine Land Co., 189 Miss. 496, 195 So. 667, 1940 Miss. LEXIS 100 (Miss.), cert. denied, 311 U.S. 610, 61 S. Ct. 25, 85 L. Ed. 387 (U.S. 1940).

Constitution is not violated by statute where rights existing thereunder are neither taken away nor diminished and reasonable time is provided in which they may be enforced. Russell Inv. Corp. v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102, 1938 Miss. LEXIS 130 (Miss. 1938).

“Obligation of contract” within constitutional provisions means law under which contract was made as well as all remedies for its enforcement or after provided remedies equally adequate. Tucker Printing Co. v. Board of Sup'rs, 171 Miss. 608, 158 So. 336, 1934 Miss. LEXIS 285 (Miss. 1934).

Legislation of State impairing obligation of contract made under its authority is void, and courts in enforcing contract will pursue same course and apply same remedies as though such void legislation had never existed. Tucker Printing Co. v. Board of Sup'rs, 171 Miss. 608, 158 So. 336, 1934 Miss. LEXIS 285 (Miss. 1934).

A duty arising by operation of law is not a contract in the constitutional sense. Love v. Mangum, 160 Miss. 590, 135 So. 223, 1931 Miss. LEXIS 227 (Miss. 1931).

The inhibition of state legislation impairing the obligation of contracts does not apply to acts of Congress dealing with interstate matters. W.M. Carter Planing Mill Co. v. New Orleans, M. & C. R.R., 112 Miss. 148, 72 So. 884, 1916 Miss. LEXIS 79 (Miss. 1916).

A statute providing that contracts for the payment of money entered into between certain dates shall be presumed to have intended Confederate money, does not unconstitutionally impair the obligation of such contracts. Cowan v. McCutchen, 43 Miss. 207, 1870 Miss. LEXIS 26 (Miss. 1870).

Statutes allowing, increasing, or diminishing the rate of, interest may not constitutionally be given a retrospective operation. Eastin v. Vandorn, 1 Miss. 214, 1826 Miss. LEXIS 1 (Miss. 1826).

7. – Change in judicial decision, impairment of contract obligations.

The validity of a sale of state land pursuant to the law as expounded by the state supreme court, cannot be impaired by any subsequent decision altering the construction of the law. Wisconsin Lumber Co. v. State, 97 Miss. 571, 54 So. 247, 1910 Miss. LEXIS 317 (Miss. 1910).

The contract clause cannot be invoked against a change of decision by a state court. National Mut. Bldg. & Loan Asso. v. Brahan, 193 U.S. 635, 24 S. Ct. 532, 48 L. Ed. 823, 1904 U.S. LEXIS 904 (U.S. 1904).

8. – Changing limitation period, impairment of contract obligations.

Shortening a limitation period without giving reasonable time for the preservation of existing rights, unconstitutionally impairs contract obligations. Bell v. Union & Planters' Bank & Trust Co., 158 Miss. 486, 130 So. 486, 1930 Miss. LEXIS 58 (Miss. 1930).

The periods of limitation of actions may be shortened, and new rules of evidence and judicial procedure may be adopted, without unconstitutionally impairing the obligations of existing contracts, so long as such changes do not deprive the party of all remedy, or destroy the validity of the proof on which his claim rests. Briscoe v. Anketell, 28 Miss. 361, 1854 Miss. LEXIS 182 (Miss. 1854).

9. – Debtor’s exemptions, impairment of contract obligations.

H.B. 997, clarifying Miss. Code Ann. §§77-3-13,77-3-17, and17-3-21 did not violate the Contracts Clause of the federal and state constitutions because the regulation of the state’s public utilities fell within the legislature’s authority, and where a city failed to secure Mississippi Public Service Commission approval for an acquisition from a power company, its contractual rights had not vested. City of Starkville v. 4-County Elec. Power Ass'n, 909 So. 2d 1094, 2005 Miss. LEXIS 189 (Miss. 2005).

In a proceeding to distribute the surplus fund remaining after a foreclosure sale of real property, the trial court erred in concluding that the defaulting landowners were entitled to a $15,000 homestead exemption where all but one of their creditors had obtained and enrolled judgments against them prior to the effective date of the law increasing the homestead exemption from $5,000 to $15,000; nor did the increased exemption apply to the remaining creditor where its claim was pending on the effective date of the new law. Thus, the $15,000 exemption was applicable to all of the creditors’ claim. Builders Supply Co. v. Pine Belt Sav. & Loan Asso., 369 So. 2d 743, 1979 Miss. LEXIS 2257 (Miss. 1979).

A tort action does not come within the constitutional provision prohibiting impairment of existing contracts, and statute increasing the homestead exemption could properly be applied to judgment which was rendered after the passage of the act, even though the cause of action arose before the statute was passed. Odom v. Luehr, 226 Miss. 661, 85 So. 2d 218, 1956 Miss. LEXIS 446 (Miss. 1956).

Where an amendment to the statute raised homestead exemption from $3,000 to $5,000, if applied to creditors whose claims arose out of contracts entered into prior to the passage of amendment, this application would violate constitutional provision against impairment of obligation of contract by state law. Fidelity & Deposit Co. v. Lovell, 108 F. Supp. 360, 1952 U.S. Dist. LEXIS 2271 (S.D. Miss. 1952), aff'd, 214 F.2d 565, 1954 U.S. App. LEXIS 4399 (5th Cir. Miss. 1954).

A material increase of the amount of an exemption over the amount allowed when a debt was incurred, as where a homestead exemption is increased from 160 acres of land not exceeding $1500 in value, to 240 acres of land regardless of its value, materially impairs the contract obligation. Lessley v. Phipps, 49 Miss. 790, 1874 Miss. LEXIS 14 (Miss. 1874).

10. – Moratory legislation, impairment of contract obligations.

In considering the moratoria enacted by the legislature every two years, before the legislature would be authorized to invoke the police power, under the Federal Constitution the public emergency must be urgent within the state; and when the emergency ceases, the statute permitting the court to enjoin the enforcement of a perfectly valid contract immediately ceases; and its enforcement after the emergency no longer exists violates the contract clause of the Federal Constitution. Jefferson Standard Life Ins. Co. v. Noble, 185 Miss. 360, 188 So. 289, 1939 Miss. LEXIS 159 (Miss. 1939).

The Mississippi Moratorium Act of 1938, passed after the Public Emergency for which it was enacted originally to meet had ceased, was unconstitutional as violating this constitutional provision. Jefferson Standard Life Ins. Co. v. Noble, 185 Miss. 360, 188 So. 289, 1939 Miss. LEXIS 159 (Miss. 1939).

Holders of deed of trust could not complain of delay in fixing benefits to be paid by mortgagor under Act providing for postponement of mortgage foreclosure sales, where holders moved for dissolution of injunction restraining foreclosure sale on ground that Act was unconstitutional without claiming benefits under Act which are properly determinable on final hearing. Wilson Banking Co. Liquidating Corp. v. Colvard, 172 Miss. 804, 161 So. 123, 1935 Miss. LEXIS 173 (Miss. 1935).

Act authorizing postponement of mortgage foreclosure sales and extension of time for redemption from such sales with certain limitations held not violative of Federal Constitution prohibiting impairment of obligations of contracts. Wilson Banking Co. Liquidating Corp. v. Colvard, 172 Miss. 804, 161 So. 123, 1935 Miss. LEXIS 173 (Miss. 1935).

State moratory legislation closing the courts as to all remedies for a period of two years was held an unconstitutional impairment of the obligation of existing contracts. Coffman v. Bank of Kentucky, 40 Miss. 29, 1866 Miss. LEXIS 44 (Miss. 1866).

11. – Tax liability, impairment of contract obligations.

The Federal courts have general jurisdiction of an action by a foreign corporation seeking to enjoin administrative officers of the state of Mississippi from assessing its real and personal property for ad valorem taxes for years during which such corporation was granted, under Mississippi law, exemption from ad valorem taxation as a new enterprise, because, among other things, plaintiff alleged in good faith and upon reasonable grounds that the state was attempting to violate a contractual obligation. Interstate Natural Gas Co. v. Gully, 4 F. Supp. 697, 1933 U.S. Dist. LEXIS 1317 (D. Miss. 1933), rev'd, 292 U.S. 16, 54 S. Ct. 565, 78 L. Ed. 1088, 1934 U.S. LEXIS 692 (U.S. 1934).

Liquor licenses may constitutionally be taxed under a statute enacted after they were granted. C. H. Reed & Co. v. Beall, 42 Miss. 472, 1869 Miss. LEXIS 16 (Miss. 1868), overruled, Coulson v. Harris, 43 Miss. 728, 1871 Miss. LEXIS 1 (Miss. 1871); Coulson v. Harris, 43 Miss. 728, 1871 Miss. LEXIS 1 (Miss. 1871).

The Federal courts have general jurisdiction of an action by a foreign corporation seeking to enjoin administrative officers of the state of Mississippi from assessing its real and personal property for ad valorem taxes for years during which such corporation was granted, under Mississippi law, exemption from ad valorem taxation as a new enterprise, because, among other things, plaintiff alleged in good faith and upon reasonable grounds that the state was attempting to violate a contractual obligation. Interstate Natural Gas Co. v. Gully, 4 F. Supp. 697, 1933 U.S. Dist. LEXIS 1317 (D. Miss. 1933), rev'd, 292 U.S. 16, 54 S. Ct. 565, 78 L. Ed. 1088, 1934 U.S. LEXIS 692 (U.S. 1934).

12. – Tax sales, impairment of contractual obligations.

Rights of parties to contract of sale of land by State for taxes thereon are determined by statute under which sale was made and cannot thereafter be substantially impaired. Reid v. Federal Land Bank, 166 Miss. 392, 148 So. 392, 1933 Miss. LEXIS 394 (Miss. 1933); Russell Inv. Corp. v. Russell, 182 Miss. 411, 182 So. 102 (1938).

In absence of constitutional limitation if thing which constitutes defect, irregularity or illegality in tax sale proceedings is something legislature might have dispensed with by prior statute, legislature may dispense with it by subsequent statute, provided, there has not been a total departure from statutory method. Russell Inv. Corp. v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102, 1938 Miss. LEXIS 130 (Miss. 1938).

Statute providing that action attacking validity of tax sale of land to State must be brought within two years after land is sold or forfeited to State, does not cure or validate defects, irregularities and illegalities in assessment, levy and sale, nor take away any vested rights, but fixes a reasonable time in which they may be asserted, and leaves former owner the right to sue and have sale declared void because of such defects, etc. Russell Inv. Corp. v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102, 1938 Miss. LEXIS 130 (Miss. 1938).

State’s obligation under 1922 Act, on sale of land for unpaid taxes, to notify lienholders of record since 1915 of such sale, was not impaired by 1930 Act, which required State to notify only those lienholders who recorded liens within six years prior to land sale. Reid v. Federal Land Bank, 166 Miss. 392, 148 So. 392, 1933 Miss. LEXIS 394 (Miss. 1933).

13. – Municipal corporations, impairment of contract obligations.

A municipal charter is not a contract in the sense of the Federal Constitution; but this statement is subject to the qualification that under authority conferred by the charter the municipality may come under such duties or engagements with third persons as to create the sanctity of contract. Accordingly, a municipality may be deprived of its rights to the proceeds of liquor licenses. State Board of Education v. Aberdeen, 56 Miss. 518, 1879 Miss. LEXIS 157 (Miss. 1879).

14. – State grants and contracts, impairment of contract obligations.

The state could not invalidate sixteenth section leases that were entered into before the ratification of the 1890 Mississippi Constitution on the ground that the rental and renewal terms were invalid because they perpetuated rents that were now nominal in violation of the prohibition of the donation of public property to private parties as such an invalidation would impair the renewal terms of the lease contracts. Lipscomb v. Columbus Mun. Separate Sch. Dist., 269 F.3d 494, 2001 U.S. App. LEXIS 21405 (5th Cir. Miss. 2001), cert. denied, 535 U.S. 988, 122 S. Ct. 1541, 152 L. Ed. 2d 467, 2002 U.S. LEXIS 2388 (U.S. 2002).

The contract clause prevents state action which would impair obligation of contracts of the state and its political subdivisions as well as those of persons, partnerships, and corporations engaged in private business. Pryor v. Goza, 172 Miss. 46, 159 So. 99, 1935 Miss. LEXIS 105 (Miss. 1935).

State grants and executed contracts of a state are within the inhibition of legislation impairing the obligation of contracts. Swann v. Buck, 40 Miss. 268, 1866 Miss. LEXIS 71 (Miss. 1866).

15. – Public indebtedness, impairment of contract obligations.

Statute providing for scaling down of indebtedness of a drainage district when assessed benefits received are less than its bonded or other indebtedness, and providing for issuance of liquidation certificates, which may be made payable at dates different from original obligations, and providing that payment of such certificates would prevent further levy on lands for the benefits received, held unconstitutional as impairing obligation of contracts evidenced by bonds issued before enactment of the statute. Pryor v. Goza, 172 Miss. 46, 159 So. 99, 1935 Miss. LEXIS 105 (Miss. 1935).

Where statute repealing game and fish laws did not expressly repudiate indebtedness incurred by county in enforcing repealed laws, and interpretation of statute to repudiate such debt would make statute unconstitutional as impairing obligation of contract, legislature would be presumed not to have intended to repudiate debt. Tucker Printing Co. v. Board of Sup'rs, 171 Miss. 608, 158 So. 336, 1934 Miss. LEXIS 285 (Miss. 1934).

Interpretation of statute repealing game and fish laws as abrogating obligation incurred by county for printing licenses and copies of game and fish law used in carrying out repealed law would impair obligation of contract and make repealing Act void to extent it impaired obligation of contract. Tucker Printing Co. v. Board of Sup'rs, 171 Miss. 608, 158 So. 336, 1934 Miss. LEXIS 285 (Miss. 1934).

A statute requiring the holders of outstanding county bonds to present them within a prescribed time for registration, with an affidavit showing the names of the different persons through whom the holder derives his title, as a condition of future payment of interest and principal, unconstitutionally impairs the obligation of existing unmatured bonds payable to bearer. Priestly v. Watkins, 62 Miss. 798, 1885 Miss. LEXIS 151 (Miss. 1884).

No legislative alteration of the security for the payment of levee district bonds is permissible. Gibbs v. Green, 54 Miss. 592, 1877 Miss. LEXIS 56 (Miss. 1877).

16. – Public office, impairment of contract obligations.

Public officer possesses contract right to his earned fees while holding office, and the legislature cannot deprive him of them, though he has no contract right to office. United States Fidelity & Guaranty Co. v. Gully, 168 Miss. 740, 150 So. 828, 1933 Miss. LEXIS 196 (Miss. 1933).

Salaries due board of supervisors of county in class five for services rendered prior to November 1, 1930, not exceeding $1,250, could be allowed after November 1, though in excess of $1,000, maximum compensation allowable after that time. United States Fidelity & Guaranty Co. v. Gully, 168 Miss. 740, 150 So. 828, 1933 Miss. LEXIS 196 (Miss. 1933).

Laws prescribing for the future the duties to be performed by or the salaries or other compensation to be paid to public officers, enacted during their term of office, are not precluded by the contract clause. Mississippi ex rel. Robertson v. Miller, 276 U.S. 174, 48 S. Ct. 266, 72 L. Ed. 517, 1928 U.S. LEXIS 71 (U.S. 1928).

The unconstitutional impairment of a contract results from the enactment of a statute permitting the successor of a revenue agent to report on the merits attending suits for collection of delinquent taxes and share in the commissions allowed on the amount collected by such suits, where the prior statute under which the suits were brought permitted the agent to continue suits brought by him in the name of successor and enjoy the resulting compensation. Mississippi ex rel. Robertson v. Miller, 276 U.S. 174, 48 S. Ct. 266, 72 L. Ed. 517, 1928 U.S. LEXIS 71 (U.S. 1928).

Appointment to office does not create a contract obligation in such sense that the office may not be abolished during the term of an incumbent. Kendall v. City of Canton, 53 Miss. 526, 1876 Miss. LEXIS 108 (Miss. 1876).

An office is not a contract within the constitutional provision against legislation impairing contract obligations. Hyde v. State, 52 Miss. 665, 1876 Miss. LEXIS 272 (Miss. 1876).

The right of a public officer to recover compensation is not a contract, and therefore a resolution of the legislature suspending the drawing of warrants upon the state treasurer does not offend this prohibition. Swann v. Buck, 40 Miss. 268, 1866 Miss. LEXIS 71 (Miss. 1866).

17. – Banks and banking, impairment of contract obligations.

A statute empowering the court of chancery to reopen a closed bank in accordance with a plan proposed by at least three fourths of the creditors and recommended by the superintendent of banks, if the court is satisfied after hearing that the plan is feasible and just, and the superintendent is satisfied that the bank is solvent and can repay its depositors, providing that assenting and nonassenting creditors shall be required to accept payment in accordance with the terms of the approved plan and that the superintendent shall have no power to diminish to the prejudice of creditors any assets otherwise available for payment, does not impair contractual rights. Doty v. Love, 295 U.S. 64, 55 S. Ct. 558, 79 L. Ed. 1303, 1935 U.S. LEXIS 305 (U.S. 1935).

A state bank guaranty statute providing for the issuance of non-interest-bearing guaranty certificates does not unconstitutionally impair the contract obligation of existing interest-bearing guaranty certificates of deposit issued under an earlier statute. Love v. Mangum, 160 Miss. 590, 135 So. 223, 1931 Miss. LEXIS 227 (Miss. 1931).

Regulations warranted by the police power do not unconstitutionally impair the contract created by a bank’s charter. Bank of Oxford v. Love, 111 Miss. 699, 72 So. 133, 1916 Miss. LEXIS 374 (Miss. 1916), aff'd, 250 U.S. 603, 40 S. Ct. 22, 63 L. Ed. 1165, 1919 U.S. LEXIS 1782 (U.S. 1919).

A statute providing that the liability of debtors of a bank shall not be released by the forfeiture of the bank’s charter, but that they shall continue liable to its liquidating trustees, does not, as applied to existing debtors, unconstitutionally impair any contract obligation. Nevitt v. Bank of Port Gibson, 14 Miss. 513, 1846 Miss. LEXIS 100 (Miss. 1846).

18. – Corporate charter, impairment of contract obligations.

The obligation of the state’s undertaking in a special act incorporating a bank that “the business of said bank shall be confided to and controlled by its stockholders under such rules of laws and regulations as said company may see fit to adopt, provided the same may not be in conflict with the Constitution of the United States or of this state,” was not unconstitutionally impaired by the subsequent enactment of legislation providing for reasonable examinations and reports by duly authorized officers of the state banking department created by such legislation, and for an enforced annual contribution to the expenses of such department, of a specified fraction of the bank’s total assets. Bank of Oxford v. Love, 250 U.S. 603, 40 S. Ct. 22, 63 L. Ed. 1165, 1919 U.S. LEXIS 1782 (U.S. 1919).

The grant by the state to a corporation of power to acquire and hold real estate is a contract which the state may not impair by a statute prohibiting corporations from acquiring agricultural lands. Southern Realty Co. v. Tchula Co-operative Stores, 114 Miss. 309, 75 So. 121, 1917 Miss. LEXIS 36 (Miss. 1917).

The imposition of an additional privilege tax on railroads claiming exemption, under charter, from state rate control, unconstitutionally impairs a contract right. Gulf & S. I. R. Co. v. Adams, 90 Miss. 559, 45 So. 91, 1907 Miss. LEXIS 128 (Miss. 1907).

A legislative grant to a railroad company of the right to fix rates, within maximum limits, may not be impaired by subsequent legislation. Stone v. Yazoo & M. Valley R. Co., 62 M 607; Gulf & Ship Island R.R. v. Adams, 90 Miss. 559, 45 So. 91 (1907).

The charter of the Mobile and Ohio Railroad Co. by which it is empowered from time to time to fix, regulate and receive the tolls and charges to be received by it for transportation contains no contract the obligation of which is in any way impaired by the Mississippi statute of March 11, 1884, creating a commission to provide for the regulation of freight and passenger rates, to prevent unjust discrimination, and to enforce certain police regulations affecting railroad companies doing business in that state. Stone v. Farmers' Loan & Trust Co., 6 S. Ct. 388 (U.S. 1886).

A charter granted by the state to a corporation is a contract within the meaning of this provision; and the contract subsisting between the stockholders and the corporation is equally within the protection of the Constitution. New Orleans, J. & G. N. R. Co. v. Harris, 27 Miss. 517, 1854 Miss. LEXIS 88 (Miss. 1854).

The obligation of the contract between the state and a bank chartered by it whereby it was allowed to take negotiable notes, and to sell or to transfer them, and that with the maker enabling the bank to assign his note and a recovery to be had on it by the assignee, are unconstitutionally impaired by a statute declaring that it shall not be lawful for any bank of a state to transfer by endorsement or otherwise any note, bill receivable, or other evidence of debt, and if it shall appear in evidence upon the trial of any action upon any such note, bill receivable, or other evidence of debt, that the same was transferred, the same shall abate upon the plea of the defendant. Planters' Bank of Mississippi v. Sharp, 47 U.S. 301, 12 L. Ed. 447, 1848 U.S. LEXIS 318 (U.S. 1848).

19. – Franchises and privileges, impairment of contract obligations.

For a case holding that a telephone and telegraph company had acquired vested rights under Chapter 38, Laws of 1886, SO that Chapter 372, Laws of 1956, to the extent that it authorizes municipalities to impose charges on such company for the use of the highways and streets, is unconstitutional, see City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U.S. 639, 79 S. Ct. 455, 3 L. Ed. 2d 562 (1959) However, the judgment in this case was vacated by the Supreme Court of the United States and the case remanded to the District Court with directions to hold the cause until the parties repaired to a state tribunal for an authoritative declaration of applicable state law. .

A contract fixing rates which is protected against impairment by the contract clause could be made by the city of Vicksburg under the authority of the Mississippi Laws of 1886, c. 358, § 5, empowering it to provide for the erection and maintenance of a system of waterworks to supply that city with water, and to that end to contract with a party or parties who shall build and operate waterworks. City of Vicksburg v. Vicksburg Waterworks Co., 206 U.S. 496, 27 S. Ct. 762, 51 L. Ed. 1155, 1907 U.S. LEXIS 1178 (U.S. 1907).

The privilege of conducting a lottery bestowed upon a corporation by its charter does not preclude the state from thereafter outlawing lotteries. Moore v. State, 48 M 147, (writ of error dismissed in 21 Wall (US) 636, 22 L Ed 653); Stone v. Mississippi, 101 U.S. 814, 25 L. Ed. 1079, 1879 U.S. LEXIS 1990 (U.S. 1880).

The contract obligation of a nonexclusive franchise is not unconstitutionally impaired by granting a franchise to a competitor. Collins v. Sherman, 31 Miss. 679, 1856 Miss. LEXIS 141 (Miss. 1856).

20. – Retirement death benefits, impairment of contract obligations.

Section 25-11-114(2)(a), which mandates that the pre-retirement death benefits of a Mississippi Public Employees’ Retirement System member must go to the member’s surviving spouse, regardless of whom the member has duly designated as his or her beneficiary, was unconstitutional as applied as it impaired a contractual right that the deceased employee acquired when he became a member of the public retirement system. Public Emples. Retirement Sys. v. Porter, 763 So. 2d 845, 2000 Miss. LEXIS 39 (Miss. 2000).

21. Imposts or duties.

A tax of three cents a barrel on oysters packed or canned in the state, or shipped raw by dealers, may constitutionally be applied to oysters taken from the waters of another state. Barataria Canning Co. v. State, 101 Miss. 890, 58 So. 769, 1912 Miss. LEXIS 23 (Miss. 1912).

An ad valorem tax imposed by a city on boats wherein goods, wares, and merchandise are sold within the city limits, is not “an impost or duty” within these provisions. Harrison v. Mayor & Council of Vicksburg, 11 Miss. 581, 1844 Miss. LEXIS 92 (Miss. 1844).

22. Wharfage.

The exaction by a port, of wharfage on vessels landing there, is not repugnant to this provision. O'Conley v. President & Selectmen of Natchez, 9 Miss. 31, 1843 Miss. LEXIS 143 (Miss. 1843).

Article II The President

§ 1. Executive power, term; Presidential elections; Time of election; etc

1. The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows:

2. Each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.

3. [The electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit sealed to the seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President; and if no person have a majority, then from the five highest on the list the said house shall in like manner choose the president. But in choosing the President, the votes shall be taken by States, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the electors shall be the Vice President. But if there should remain two or more who have equal votes, the senate shall choose from them by ballot the Vice President.]

4. The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.

5. No person except a natural-born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.

6. In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President, and the Congress may by law provide for the case of removal, death, resignation or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected.

7. The President shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them.

8. Before he enter on the execution of his office, he shall take the following oath or affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

Editor’s Note —

Clause 3, enclosed in brackets, was superseded by the Twelfth Amendment.

Cross References —

Manner of election, see USCS Const. Amend. XII.

Commencement of term, see USCS Const. Amend. XX, § 1.

Death of or failure of President-elect or Vice President-elect to qualify, see USCS Const. Amend. XX, § 3.

Death of person chosen by Congress to act, see USCS Const. Amend. XX, § 4.

Limitation as to term, see USCS Const. Art. XXII.

Presidential and Vice Presidential electors for District of Columbia, see USCS Const., Amend. XXIII.

Removal, inability, death, or resignation of President, see USCS Const. Amend. XXV.

Vacancy in the office of Vice President, see USCS Const. Amend. XXV, § 2.

RESEARCH REFERENCES

ALR.

Presidential and vice-presidential electors. 153 A.L.R. 1006.

Executive privilege with respect to presidential papers and recordings. 19 A.L.R. Fed. 472.

Am. Jur.

16 Am Jur 2d, Constitutional Law §§ 216-218.

3B Am Jur 2d, Aliens and Citizens § 1879.

3C Am Jur 2d, Aliens and Citizens § 2271.

25 Am Jur 2d, Elections § 6.

63C Am Jur 2d, Public Officers and Employees §§ 111, 113, 118, 122.

77 Am Jur 2d, United States §§ 17-20.

Lawyers’ Edition.

Treaty or international executive agreement as limiting recovery available to United States citizens or businesses. 80 L Ed 2d 871.

Supreme Court’s views as to extent, under Federal Constitution, of privileges and immunities of United States President or former President, by reason of that office, as to judicial proceedings or process. 137 L Ed 2d 1135.`

Supreme Court’s construction and application of federal constitutional provisions (Art II, § 1, cl 2, 4; Amendments 12, 23) concerning appointment of, or voting by, Presidential electors. 148 L Ed 2d 1087.

JUDICIAL DECISIONS

1. Presidential electors.

The provisions of Code 1942 § 3107 which provide a method whereby the state political party conventions may select two slates of presidential electors, one slate pledged to support the nominee of the national political party, and one slate unpledged offends no provision of the United States Constitution, for this section expressly provides that nothing therein shall prohibit a slate of electors pledged to support the national party candidate from running on the same general election ballot, and Code 1942 § 3260 enables such a slate to get on the ballot upon the petition of 1,000 voters. Gray v. Mississippi, 233 F. Supp. 139, 1964 U.S. Dist. LEXIS 7357 (N.D. Miss. 1964).

The United States Constitution does not require all states to provide voters with an opportunity to vote for pledged electors running under a national party label. Gray v. Mississippi, 233 F. Supp. 139, 1964 U.S. Dist. LEXIS 7357 (N.D. Miss. 1964).

§ 2. Powers of President

1. The President shall be the Commander-in-Chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

2. He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

3. The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

Editor’s Note —

Parts of clause 1 are popularly known as the “Commander in Chief Clause,” the “Opinion Clause” and the “Pardon Clause.”

Parts of clause 2 are popularly known as the “Treaty Clause” and the “Appointments Clause.”

Clause 3 is popularly known as the ‘Recess Appointments Clause.”

RESEARCH REFERENCES

Am. Jur.

4 Am. Jur. 2d, Ambassadors, Diplomats and Consular Officials §§ 2, 5.

16 Am. Jur. 2d, Constitutional Law § 57.

16A Am. Jur. 2d, Constitutional Law §§ 247, 325.

21A Am. Jur. 2d, Custom Duties and Import Regulations § 16.

32 Am. Jur. 2d, Federal Courts § 19.

35 Am. Jur. 2d, Federal Tax Enforcement §§ 603, 604.

46 Am. Jur. 2d, Judges § 9.

77 Am. Jur. 2d, United States § 24.

Lawyers’ Edition.

Treaty or international executive agreement as limiting recovery available to United States citizens or businesses. 80 L Ed 2d 871.

Supreme Court’s construction and application of appointments clause of Art. II, § 2, cl. 2, of Federal Constitution.101 L. Ed. 2d 1072.

§ 3. Messages; Convene and Adjourn Congress; Receive Ambassadors; Executive Laws; Commission Officers

He shall from time to time give to the Congress information of the State of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.

Editor’s Note —

Parts of this clause are popularly known as the “State of the Union Clause,” the “Recommendation Clause” and the “Take Care Clause.”

RESEARCH REFERENCES

Am. Jur.

4 Am. Jur. 2d, Ambassadors, Diplomats and Consular Officials § 1.

16A Am. Jur. 2d, Constitutional Law § 247.

77 Am. Jur. 2d, United States § 20.

Lawyers’ Edition.

Supreme Court’s views as to extent, under Federal Constitution, of privileges and immunities of United States President or former President, by reason of that office, as to judicial proceedings or process. 137 L Ed 2d 1135.

Supreme Court’s construction and application of Federal Constitution’s Art. II, § 3 provision that President shall take care that laws be faithfully executed. 170 L Ed 2d 1045.

§ 4. Impeachment

The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

RESEARCH REFERENCES

Am. Jur.

63C Am. Jur. 2d, Public Officers and Employees §§ 218-222.

RESEARCH REFERENCES

CJS.

C.J.S. Ambassadors and Consuls §§ 1-9.

C.J.S. Armed Services §§ 1-5, 21, 23.

C.J.S. Constitutional Law §§ 134-136, 203, 204, 215-227.

C.J.S. Judges §§ 20-27, 58-77.

C.J.S. Pardon and Parole §§ 3, 4, 11-33.

C.J.S. Treaties § 4.

C.J.S. United States §§ 45-53, 56, 57.

Article III The Judiciary

§ 1. Judiciary; powers; tenure; compensation

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

RESEARCH REFERENCES

ALR.

Executive privilege with respect to presidential papers and recordings. 19 A.L.R. Fed. 472.

Am. Jur.

2 Am. Jur. 2d, Administrative Law § 63.

9 Am. Jur. 2d, Bankruptcy §§ 741, 825, 826.

16 Am. Jur. 2d, Constitutional Law §§ 219-226.

24 Am. Jur. 2d, District of Columbia § 21.

32 Am. Jur. 2d, Federal Courts §§ 1, 5, 18-20, 469, 470, 537.

32A Am. Jur. 2d, Federal Courts § 582.

46 Am. Jur. 2d, Judges §§ 11, 50, 57.

Lawyers’ Edition.

Validity, under Federal Constitution, of arbitration statutes. 87 L Ed 2d 787.

Supreme Court’s views as to state court’s concurrent jurisdiction over federal cause of action in absence of federal legislation expressly granting such jurisdiction. 107 L Ed 2d 1182.

Supreme Court’s view as to when congressional enactment violates separation-of-powers principles through directing case’s result in—or through providing for executive or legislative suspension or revision of judgment by—federal court established under Article III of Federal Constitution. 147 L Ed 2d 1137.

Supreme Court’s views as to validity, construction, and application of 28 USCS § 1367, concerning supplemental jurisdiction of federal courts. 162 L Ed 2d 1031.

Supreme Court’s views concerning common-law doctrine of forum non conveniens with respect to lower federal courts. 167 L Ed 2d 1179.

§ 2. Jurisdiction of Courts; Supreme Court, Original and Appellate Jurisdiction; Criminal Trial by Jury

1. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

2. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

3. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.

Editor’s Note —

The part of clause 1 related to controversies “between a State and Citizens of another State” has been affected by Amendment 11.

Parts of clause 1 are popularly known as the “Arising Under Clause” and the “Case or Controversy Clause” or “Case and Controversies Clause.”

Part of clause 2 is popularly known as the “Exceptions Clause.”

Cross References —

Right to impartial jury, see USCS Const. Amend. VI.

Right to jury trial in civil cases, see USCS Const. Amend. VII.

Suits between a state and citizens of another state, see USCS Const. Amend. XI.

RESEARCH REFERENCES

ALR.

Right to jury trial in stockholder’s derivative action. 32 ALR4th 1411.

Right to jury trial in action for declaratory relief in state court. 33 A.L.R.4th 146.

Right of accused, in state criminal trial, to insist, over prosecutor’s or court’s objection, on trial by court without jury. 37 A.L.R.4th 304.

Small claims: jury trial rights in, and on appeal from, small claims court proceeding. 70 A.L.R.4th 1119.

Applicability of maritime law rule of comparative negligence to strict products liability cases brought in admiralty. 74 A.L.R. Fed. 316.

Am. Jur.

2 Am. Jur. 2d, Administrative Law § 419.

2 Am. Jur. 2d, Admiralty §§ 2, 4-6, 8, 91.

3C Am. Jur. 2d, Aliens and Citizens §§ 2110, 2119.

4 Am. Jur. 2d, Ambassadors, Diplomats and Consular Officials § 17.

4 Am. Jur. 2d, Appellate Review §§ 1, 7, 8, 17, 39.

5 Am. Jur. 2d, Appellate Review §§ 557, 597, 806.

9 Am. Jur. 2d, Bankruptcy §§ 603, 707.

16 Am. Jur. 2d, Constitutional Law § 131.

17 Am. Jur. 2d, Contempt § 179.

22A Am. Jur. 2d, Declaratory Judgments § 30.

24 Am. Jur. 2d, District of Columbia § 10.

32 Am. Jur. 2d, Federal Courts §§ 470, 471, 495.

32A Am. Jur. 2d, Federal Courts §§ 582, 584, 618, 622, 653, 884, 935.

39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies § 97.

44B Am. Jur. 2d, International Law § 171.

54 Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices §§ 379, 510.

61C Am. Jur. 2d, Pollution Control § 989.

70 Am. Jur. 2d, Shipping § 13.

77 Am. Jur. 2d, United States § 61.

Lawyers’ Edition.

Validity and construction of Federal Criminal Procedure Rule 23, dealing with trial by jury or by the court. 13 L Ed 2d 1119.

Noncompliance with state procedural rule as constituting “adequate state ground” for denial of relief so as to preclude Supreme Court review of federal question. 24 L Ed 2d 837.

Construction and application of 28 USCS § 1253 permitting direct appeal to Supreme Court from order of three-judge District Court granting or denying injunction. 26 L Ed 2d 947.

Construction and application of 28 USCS § 1254(2) authorizing appeal to Supreme Court from Court of Appeals judgment invalidating state statute. 27 L Ed 2d 840.

What judgment or decree of state court in civil cases is final for purpose of review by United States Supreme Court under 28 USCS § 1257 and similar predecessors. 29 L Ed 2d 872.

Considerations affecting grant, continuance, reduction, or revocation of bail by individual Justice of Supreme Court. 30 L Ed 2d 952.

Supreme Court’s view as to what is a “case or controversy” within the meaning of Article III of the Federal Constitution or an “actual controversy” within the meaning of the Declaratory Judgment Act (28 USCS § 2201). 40 L Ed 2d 783.

What circumstances render civil case, or issues arising therein, moot so as to preclude Supreme Court’s consideration of their merits. 44 L Ed 2d 745.

Supreme Court’s views as to when, in litigation, to allow exception to general rule that party does not have standing to assert third party’s rights or interests. 50 L Ed 2d 902.

Original jurisdiction of United States Supreme Court in suits between states. 68 L Ed 2d 969.

Requirements of Article III of Federal Constitution as affecting standing to challenge particular conduct as violative of federal law–Supreme Court cases. 70 L Ed 2d 941.

Supreme Court’s views as to scope of “arising under” clause of Article III § 2, Clause 1 of Federal Constitution.76 L Ed 2d 831.

Accused’s constitutional right to public trial held applicable to suppression hearing. 81 L. Ed. 2d 31.

Validity, under Federal Constitution, of arbitration statutes. 87 L Ed 2d 787.

Distinction between “petty” and “serious” offenses for purposes of federal constitutional right to trial by jury–Supreme Court cases. 103 L. Ed. 2d 1000.

Supreme Court’s construction and application of Federal Constitution’s Art III, § 2, cl. 2 provision that Supreme Court’s appellate jurisdiction is subject to such exceptions and regulations as Congress shall make. 133 L Ed 2d 965.

Taxpayer’s standing to raise federal constitutional question in federal court–Supreme Court cases. 136 L Ed 2d 963.

Supreme Court’s views as to extent, under Federal Constitution, of privileges and immunities of United States President or former President, by reason of that office, as to judicial proceedings or process. 137 L Ed 2d 1135.

Supreme Court’s views concerning its original jurisdiction, under Art III, § 2, cl. 2 of Federal Constitution, over “all cases affecting Ambassadors, other public Ministers and Consuls”. 140 L Ed 2d 1163.

Supreme Court’s view as to when congressional enactment violates separation-of-powers principles through directing case’s result in—or through providing for executive or legislative suspension or revision of judgment by—federal court established under Article III of Federal Constitution. 147 L Ed 2d 1137.

Supreme Court’s views concerning ripeness, for adjudication, of claim that regulatory taking violated just compensation clause of Federal Constitution’s Fifth Amendment.150 L Ed 2d 893.

Supreme Court’s views as to validity, construction, and application of 28 USCS § 1367, concerning supplemental jurisdiction of federal courts. 162 L Ed 2d 1031.

Supreme Court’s views as to what, in federal-court patent litigation, is case or controversy, within meaning of Article III of Federal Constitution, or actual controversy, within meaning of Declaratory Judgment Act (28 USCS § 2201, or similar predecessor). 166 L Ed 2d 1047.

Supreme Court’s views as to what changes in circumstances render moot (so as to preclude consideration of merits) habeas corpus case, or issues in such case, concerning criminal proceedings. 169 L Ed 2d 975.

Intervention or joinder of parties in proceeding in Supreme Court under its original jurisdiction. 175 L Ed 2d 1145.

JUDICIAL DECISIONS

1. In general.

2. Guilty plea.

3. Admiralty.

4. Venue.

5. Others; standing not found.

1. In general.

Facial challenges brought by church against city’s ordinance under which church had been denied renovation permit were easily ripe because, first, they were fit for judicial decision because they raised pure questions of law, and second, church would have suffered hardship, including probable losing of its lease and curtailment of its religious exercise rights, if review were delayed. Opulent Life Church v City of Holly Springs, Miss. 697 F.3d 279, U.S. App. LEXIS 20283 (5th Cir. 2012).

Lawsuit brought by church challenging city’s ordinance under which it had been denied renovation permit did not become moot when on eve of oral argument that city repealed ordinance and replaced it with one which would have banned church altogether from using building it had leased; furthermore, church seeking actual damages and attorney fees ensured actual live controversy. Opulent Life Church v City of Holly Springs, Miss. 697 F.3d 279, U.S. App. LEXIS 20283 (5th Cir. 2012).

Requirements of U.S. Const. Art. III are not satisfied merely because a party requests a court of the United States to declare its legal rights; plaintiff political party’s attempts to demonstrate actual or threatened injury by (a) declaring its intention, were the statute not in place, to hold closed primaries, (b) asserting a threat of prosecution against it for violating state election law, and (c) protesting its inability to modify party rules without legislative sanction, failed to satisfy its burden to show a case or controversy. Although the party contended its executive committee’s decision to authorize a suit was sufficient to give it standing to challenge the statute, without concrete plans or any objective evidence to demonstrate a “serious interest” in a closed primary, the party suffered no threat of imminent injury. Miss. State Democratic Party v. Barbour, 529 F.3d 538, 2008 U.S. App. LEXIS 11395 (5th Cir. Miss. 2008).

Although plaintiff political party unquestionably pleaded a constitutional injury by alleging that Mississippi’s semi-closed primary statute required it to associate with members of the other party during its candidate-selection process, it took no internal steps to limit participation in its primaries to party members and thus could not claim that Miss. Code Ann. §23-15-575 actually had an unconstitutional effect; this lack of “actual controversy” made the case too remote and abstract an inquiry for the proper exercise of the judicial function under U.S. Const. Art. III. Miss. State Democratic Party v. Barbour, 529 F.3d 538, 2008 U.S. App. LEXIS 11395 (5th Cir. Miss. 2008).

Plaintiffs who showed that challenged statutes either impinged upon their protected rights to register to vote or burdened organizational efforts to assist prospective voters in registering had standing to sue to challenge Mississippi’s dual registration requirement and prohibition on satellite registration as violative of their rights and all persons similarly situated. Mississippi State Chapter, Operation Push v. Allain, 674 F. Supp. 1245, 1987 U.S. Dist. LEXIS 10925 (N.D. Miss. 1987).

A motion brought by the State of Ohio for leave to file a bill of complaint for abatement of a nuisance, alleging that the defendants, Wyandotte Chemicals Corporation and Dow Chemical Company, both out-of-state corporations, and Dow Chemical Company of Canada, Limited, were responsible for contaminating Lake Erie by the dumping of mercury into tributaries outside of Ohio, was denied, even though the complaint stated a cause of action within the court’s original jurisdiction, and notwithstanding the public importance of the matters at issue, on the ground that the court has discretion to decline jurisdiction in order to protect itself from abuse of the opportunity to resort to its original jurisdiction in the enforcement by states of claims against citizens of another state or country, particularly in controversies based upon complex questions of fact but involving no difficult or important problems of federal law. Ohio v. Wyandotte Chems. Corp., 401 U.S. 493, 91 S. Ct. 1005, 28 L. Ed. 2d 256, 1971 U.S. LEXIS 109 (U.S. 1971).

Where, after making contract of employment in Louisiana between citizens of that State for work on dredge, operations were subsequently carried on in Mississippi where employee was injured while at work on dredge without own motive power and engaged in making channel through point to shorten Mississippi river, employee’s remedy held not that afforded by Federal Seamen’s Act, but by Louisiana Compensation Act, if employer had complied with it, otherwise that afforded by Mississippi law. Orleans Dredging Co. v. Frazie, 173 Miss. 882, 161 So. 699, 1935 Miss. LEXIS 228 (Miss. 1935), cert. denied, 296 U.S. 653, 56 S. Ct. 383, 80 L. Ed. 465, 1936 U.S. LEXIS 486 (U.S. 1936).

2. Guilty plea.

A guilty plea operates to waive the defendant’s privilege against self-incrimination, the right to confront and cross-examine the prosecution’s witnesses, the right to a jury trial, and the right that the prosecution prove each element of the offense beyond a reasonable doubt. Jefferson v. State, 556 So. 2d 1016, 1989 Miss. LEXIS 485 (Miss. 1989).

3. Admiralty.

To hold that one taking possession of a barge swept down the Mississippi by a flood, but not abandoned by its owner, is not entitled to retain possession as against the owner, is not to invade the exclusive admiralty jurisdiction of the Federal courts. Mengel Box Co. v. Joest, 127 Miss. 461, 90 So. 161, 1921 Miss. LEXIS 245 (Miss. 1921).

4. Venue.

Defendant’s convictions for attempting a burglary, arson, and a murder, were proper where venue was proper in the county where defendant attempted to burn the structure; venue was proper pursuant to U.S. Const. Art. III, § 2 cl. 3, U.S. Const. amend. VI, and Miss. Const. Art. 3, § 26 because there was nothing conceptually outrageous or bizarre in bringing charges in the county for an attempt to burn a building in that county. Holbrook v. State, 877 So. 2d 525, 2004 Miss. App. LEXIS 23 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 865 (Miss. 2004), cert. denied, 543 U.S. 1166, 125 S. Ct. 1340, 161 L. Ed. 2d 141, 2005 U.S. LEXIS 1746 (U.S. 2005).

5. Others; standing not found.

In the context of standing, while any person may file a complaint with the Mississippi Ethics Commission under Mississippi law, only local district attorneys, the Mississippi Attorney General, or the Commission itself may file direct actions in court challenging the ethical conduct of public officials. As a result, where the parents sought reversal of the confirmations of two school board members by the city council, alleging that certain council members were required to have recused themselves due to conflicts of interest, the parents were not “persons aggrieved” for purposes of Miss. Code Ann. §11-51-75, and they did not meet the statutory requirements to file a bill of exceptions under the facts presented; their sole remedy was to file a complaint with the Commission. City of Jackson v. Greene, 869 So. 2d 1020, 2004 Miss. LEXIS 337 (Miss. 2004).

§ 3. Treason; Punishment of Treason

1. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

2. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attained.

Cross References —

Attainder and ex post facto laws, see USCS Const. Art. 1, § 9, cl. 3 and Art. 1, § 10, cl. 1.

RESEARCH REFERENCES

Am. Jur.

3C Am Jur 2d, Aliens and Citizens § 2212.

23 Am Jur 2d, Descent and Distribution § 37.

70 Am Jur 2d, Sedition, Subversive Activities, and Treason §§ 4, 29, 58, 61, 62, 64-66, 71.

JUDICIAL DECISIONS

1. In general.

A statute which, as construed by the state courts, makes it a criminal offense to communicate to others views and opinions respecting governmental policies, and prophesies concerning the state of this and other nations, irrespective of whether the communication was with an evil or sinister purpose or advocated or incited subversive action against the nation or state, or threatened any clear and present danger to American institutions or government, denies the liberty guaranteed by the Fourteenth Amendment. Taylor v. Mississippi, 319 U.S. 583, 63 S. Ct. 1200, 87 L. Ed. 1600 (1943), reversing 194 Miss. 1, 11 So. 2d 663 (1943).

A statute making it a criminal offense to indoctrinate any creed, theory, or any set of principles which reasonably tends to create an attitude of stubborn refusal to salute, honor or respect the flag of the United States or of the state, denies the liberty guaranteed by the Fourteenth Amendment. Taylor v. Mississippi, 319 U.S. 583, 63 S. Ct. 1200, 87 L. Ed. 1600 (1943), reversing 194 Miss. 1, 11 So. 2d 663 (1943).

RESEARCH REFERENCES

CJS.

C.J.S. Admiralty §§ 1 to 89, 228.

C.J.S. Convicts § 4.

C.J.S. Federal Civil Procedure §§ 313-340, 398, 522, 534.

C.J.S. Federal Courts §§ 3, 4, 89-102, 104-112, 116-157.

C.J.S. Treason §§ 2-9.

Article IV States; Reciprocal relationship between states and with United States

§ 1. Full faith and credit

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.

Federal Aspects —

Full faith and credit to protection orders, 18 USCS § 2265.

Full faith and credit to arbitral tribunal awards under Convention Establishing the Multilateral Investment Guarantee Agency, 22 USCS § 290k-11.

Full faith and credit to tribal actions under certain tribal ordinances, 25 USCS § 2207.

Full faith and credit to Acts, records, and judicial proceedings of states, territories, and possessions, 28 USCS § 1738.

Full faith and credit to child custody determinations, 28 USCS § 1738A.

Full faith and credit to child support orders, 28 USCS § 1738B.

Full faith and credit to nonjudicial records kept in public office, 28 USCS § 1739.

Extension of Art. IV, Sec. 1 to Guam, 48 USCS § 1421b.

Extension of Art. IV, Sec. 1 to Virgin Islands, 48 USCS § 1561.

RESEARCH REFERENCES

ALR.

Judgment subject to appeal as entitled to full faith and credit. 2 A.L.R.3d 1384.

Full faith and credit “last-in-time” rule as applicable to sister state divorce or custody judgment which is inconsistent with the forum state’s earlier judgment. 36 A.L.R.5th 527.

Am. Jur.

4 Am Jur 2d, Alternative Dispute Resolution § 204.

6 Am Jur 2d, Attachment and Garnishment § 544.

16 Am Jur 2d, Conflict of Laws § 14.

16A Am Jur 2d, Constitutional Law § 222.

19 Am Jur 2d, Corporations § 2145.

20 Am Jur 2d, Courts § 90.

22A Am Jur 2d, Death § 268.

23 Am Jur 2d, Desertion and Nonsupport §§ 74, 80, 81.

24A Am Jur 2d, Divorce and Separation §§ 1073, 1075, 1083, 1086-1088, 1090, 1093, 1098, 1100, 1105, 1114, 1126, 1130.

27 Am Jur 2d, Eminent Domain § 624.

29 Am Jur 2d, Evidence § 229.

29A Am Jur 2d, Evidence §§ 1323, 1339.

36 Am Jur 2d, Foreign Corporations §§ 19, 49, 186, 248, 377, 434.

47 Am Jur 2d, Judgments § 764.

57 Am Jur 2d, Municipal, County, School, and State Tort Liability § 31.

63B Am Jur 2d, Product Liability §§ 1430, 1441.

80 Am Jur 2d, Wills § 894.

82 Am Jur 2d, Workers’ Compensation § 567.

Law Reviews.

Hoffheimer, Mississippi Conflict of Laws. 67 Miss. L. J. 175, Fall, 1997.

JUDICIAL DECISIONS

1. Construction and application.

2. Jurisdiction of court.

3. Venue.

4. Nonfinal judgment.

5. Law governing.

6. Evidentiary matters.

7. Fraud or mistake.

8. Divorce and support.

9. Child custody and visitation.

10. Probate proceedings.

11. Limitation of actions.

12. Contracts violative of Mississippi law.

13. Workers’ compensation.

14. Foreign guardianship.

1. Construction and application.

Comity, which gives effect to laws and judicial decision of other courts beyond that mandated by full faith and credit clause, should not be applied when its application would render meaningless substantial rights of non-moving party. Harrison v. Boyd Mississippi, Inc., 700 So. 2d 247, 1997 Miss. LEXIS 235 (Miss. 1997).

“Comity” suggests that forum courts, as matter of judicial courtesy, should give effect to laws and judicial decisions of other courts beyond that mandated by full faith and credit clause of United States Constitution. Harrison v. Boyd Mississippi, Inc., 700 So. 2d 247, 1997 Miss. LEXIS 235 (Miss. 1997).

Mississippi is required by the United States Constitution, Art. IV, Sec. 1, to give full faith and credit to all final judgments of other states and federal courts unless (1) the foreign judgment was obtained as a result of some false representation without which the judgment would not have been rendered, or (2) the rendering court did not have jurisdiction over the parties or the subject matter; however, in order to challenge a foreign judgment on this ground, it is necessary that the challenge be timely and properly filed in Mississippi pursuant to §15-1-45. Davis v. Davis, 558 So. 2d 814, 1990 Miss. LEXIS 19 (Miss. 1990).

2. Jurisdiction of court.

Hospital showed that a foreign judgment confirming an arbitration award in favor of a staffing company was invalid on the ground that the arbitrator and the Missouri court lacked personal jurisdiction over it because the contract and lease affirmatively showed that the hospital was not the entity that contracted with the company; the lease established that during the contract period, the county board of supervisors had leased the hospital facility to a private entity and had ceased operating it. Linde Health Care Staffing v. Claiborne County Hosp., 198 So.3d 318, 2016 Miss. LEXIS 320 (Miss. 2016).

Doctor enrolled the New Mexico judgment on March 3, 1999, and the clerk mailed notice of the enrollment on that date, and the attorney then had 20 days to contest the enrollment of the judgment; where the attorney’s response was filed on April 28, 1999, outside the 20-day limit, the attorney’s defenses to the enrollment which alleged false representations by the doctor were not properly before the trial court. Schwartz v. Hynum, 933 So. 2d 1039, 2006 Miss. App. LEXIS 521 (Miss. Ct. App. 2006).

Doctrine of comity, which gives effect to laws and judicial decision of other courts beyond that mandated by full faith and credit clause, would not be considered, where non-forum court lacked subject matter jurisdiction. Harrison v. Boyd Mississippi, Inc., 700 So. 2d 247, 1997 Miss. LEXIS 235 (Miss. 1997).

In order for full faith and credit to apply, the foreign court must have addressed the merits of the case in rendering its judgment. However, this general rule does not apply if the rendering court did not have jurisdiction over the parties or the subject matter or if the foreign judgment itself was obtained as a result of some false representation without which the judgment would not have been rendered. If a foreign judgment is collaterally attacked on subject matter grounds, the court may consider extrinsic evidence only to show that the foreign judgment is void. When the attack is on grounds of extrinsic fraud, a distinction must be made between fraud involving the merits and fraud which enables a party to procure a judgment that he or she otherwise would not have obtained. Davis v. Davis, 558 So. 2d 814, 1990 Miss. LEXIS 19 (Miss. 1990).

Chancery Court has jurisdiction to hear and adjudicate controversy involving validity and effect of power of attorney, which has not been acknowledged and recorded in manner of conveyance of land, with respect to conveyance of real property situated in Republic of Greece where all parties reside in Mississippi and have been effectively subjected to in personam jurisdiction of Chancery Court; court may enter personal judgment, even though controlling substantive law is that of Greece; final adjudication would effectively bind parties in Mississippi and presumably in all other states even though adjudication may not be enforceable in Greece as matter of right and maybe not even as matter of comity. Kountouris v. Varvaris, 476 So. 2d 599, 1985 Miss. LEXIS 2245 (Miss. 1985).

Where jurisdiction of a foreign court or that of a state is brought into question in a suit in courts of another state or sovereignty, the law of the forum is controlling upon the question of jurisdiction of the court rendering the judgment. Wheeler v. Kight, 233 Miss. 425, 102 So. 2d 374, 1958 Miss. LEXIS 398 (Miss. 1958).

Where at the time of rendering judgment assessing certain policy holders, the Texas court had jurisdiction of the subject matter of the class suit by the statutory receiver for an unincorporated reciprocal insurance exchange, but did not have territorial jurisdiction of the person of the defendant who then lived in Mississippi, and who was not served with process except by mailing of the same to him at his place of residence, the court did not err in refusing to give full faith and credit to the judgment when defendant was sued in Mississippi. Wheeler v. Kight, 233 Miss. 425, 102 So. 2d 374, 1958 Miss. LEXIS 398 (Miss. 1958).

Records and proceedings of courts of other states are entitled to full faith and credit only insofar as such courts have jurisdiction of the subject matter and the parties, and facts necessary to give jurisdiction to the court rendering judgment may be inquired into. Hopkins v. Hopkins, 174 Miss. 643, 165 So. 414, 1936 Miss. LEXIS 200 (Miss. 1936); American Cas. Co. v. Kincade, 219 Miss. 653, 69 So. 2d 820, 1954 Miss. LEXIS 374 (Miss. 1954).

Where the full faith and credit clause is invoked to compel enforcement of a judgment or decree in another state, the question of jurisdiction in the court of rendition is always open to inquiry. Steele v. Steele, 152 Miss. 365, 118 So. 721, 1928 Miss. LEXIS 227 (Miss. 1928).

Full faith and credit does not require the admission in evidence of a judgment of a court of a sister state, rendered in a suit commenced by attachment against the property of a person who was without such state and was not personally served with process. Chew & Relf v. Randolph, 1 Miss. 1, 1818 Miss. LEXIS 1 (Miss. 1818).

3. Venue.

A Mississippi resident who went into Tennessee and contracted with a Tennessee corporation providing placement services to seek employment for him in any one of 3 states, one of which was Tennessee, was amenable to personal jurisdiction in the Tennessee courts, and the Mississippi court could not decline to give full faith and credit to the Tennessee court judgment on ground that venue was not proper in the Tennessee court. Educational Placement Services v. Wilson, 487 So. 2d 1316, 1986 Miss. LEXIS 2445 (Miss. 1986).

4. Nonfinal judgment.

A Louisiana judgment was a valid final one entitled to full faith and credit in the courts of Mississippi, notwithstanding the contention that it was not final since a copy of the notice of the signing of the judgment had not been mailed to the attorney of record, where the Louisiana case had not been taken under advisement and no written request for a notice of judgment had been filed; thus no such notice was required under Louisiana law. Marsh v. Luther, 373 So. 2d 1039, 1979 Miss. LEXIS 2324 (Miss. 1979).

A judgment which is not final and which is subject to change and modification at any time when a change of conditions demands it, and has no conclusive effect in the state where rendered, has no constitutional claim under the full faith and credit clause of the Constitution to final conclusive effect in the state of the forum. Latham v. Latham, 223 Miss. 263, 78 So. 2d 147, 1955 Miss. LEXIS 377 (Miss. 1955).

5. Law governing.

Section 75-1-105 authorizes application of Mississippi substantive law on privity, disclaimers and limitations of remedies in warranty action only when transaction giving rise to warranty claim bears some reasonable and appropriate relationship to Mississippi, and in absence of such relation, application of Mississippi substantive warranty law violates constitutional guarantees. Price v. International Tel. & Tel. Corp., 651 F. Supp. 706, 1986 U.S. Dist. LEXIS 17192 (S.D. Miss. 1986).

Where on former appeals, terminating in a decision by the Federal Supreme Court, the point raised by demurrer to insurer’s plea involved the question whether a provision in a fidelity bond requiring any claim thereunder to be made within 15 months after the termination of the suretyship, was subject to the law of Tennessee where the contract was made at a time when the insured was then located in Tennessee, or subject to the laws of Mississippi, to which insured had removed and where the defalcation occurred, and resulted in a determination that the laws of Tennessee governed, such determination did not preclude subsequent litigation as to the effect of such provision under Tennessee decisions as being a condition precedent to liability of the insurer or merely a postponement of the right to sue. Hartford Acci. & Indem. Co. v. Delta & Pine Land Co., 189 Miss. 496, 195 So. 667, 1940 Miss. LEXIS 100 (Miss.), cert. denied, 311 U.S. 610, 61 S. Ct. 25, 85 L. Ed. 387 (U.S. 1940).

6. Evidentiary matters.

Congress cannot make promissory notes lacking an internal revenue stamp inadmissible evidence in state courts. Wilson v. State, 80 Miss. 388, 31 So. 787, 1902 Miss. LEXIS 250 (Miss. 1902).

7. Fraud or mistake.

One qualification to rule requiring Mississippi Courts to give full faith and credit to final judgments of all other states and federal courts is that if foreign judgment itself was obtained as result of some false representation without which judgment would not have been rendered, and of such nature that court of that state would relieve judgment debtor from its effect, court of Mississippi may refuse to enforce it; it is not fraud involving merits of case which may be attacked, but fraud that enables party to procure judgment he otherwise would not have obtained. Reeves Royalty Co. v. ANB Pump Truck Service, 513 So. 2d 595, 1987 Miss. LEXIS 2825 (Miss. 1987).

Full faith and credit would not be afforded to an Oklahoma judgment against a Mississippi corporation where the Oklahoma court, if it had been advised of the jurisdictional facts before the Mississippi courts, would not have asserted in personam jurisdiction over the Mississippi corporation. Galbraith & Dickens Aviation Ins. Agency v. Gulf Coast Aircraft Sales, Inc., 396 So. 2d 19, 1981 Miss. LEXIS 1979 (Miss. 1981).

8. Divorce and support.

Chancery court did not err in denying a first wife’s motion to vacate because it had no authority to vacate a Florida divorce decree issued more than fifteen years before without a complete record and with limited facts; because the first wife initially filed the motion to vacate in the Florida court but voluntarily withdrew it, she could not come to Mississippi and attack the validity of a Florida judgment issued in 1995 without providing a full record. Fernando v. Sapukotana (In re Estate of Sapukotana), 179 So.3d 1105, 2015 Miss. LEXIS 636 (Miss. 2015).

An ex-husband’s filing of a suit in tort against his ex-wife was not a proper response to her attempt to enforce foreign judgments for unpaid child support and attorney’s fees, in spite of his argument that the law suit was a consolidated answer to the efforts to enroll and execute on the 4 judgments. Even if the law suit were a timely and proper response, it would otherwise fail because the record reflected proper notice in accordance with §11-7-301 et seq., and the “response” collaterally attacked the validity and amounts of the underlying judgments which may not be attacked in Mississippi. Thus, the judgments were entitled to full faith and credit in Mississippi. Davis v. Davis, 558 So. 2d 814, 1990 Miss. LEXIS 19 (Miss. 1990).

A chancery court abused its discretion in exercising jurisdiction over a divorce action brought by the wife where a divorce had been granted by a Maine court in an action filed by the husband; the wife was estopped from asserting the invalidity of the Maine decree since she remarried soon after the decree became final, thereby indicating her reliance on its validity. Scribner v. Scribner, 556 So. 2d 350, 1990 Miss. LEXIS 23 (Miss. 1990).

The trial court correctly ordered the payment of past due child support pursuant to a Louisiana divorce decree, notwithstanding defendant husband’s contention that the decree was not final and was thus not entitled to full faith and credit, where Louisiana case law held that past due alimony was not subject to annulment or alteration. Hinds v. Primeaux, 367 So. 2d 925, 1979 Miss. LEXIS 2218 (Miss. 1979).

Recovery of past due installments for support of minor child under a divorce decree was permitted under the full faith and credit clause where the foreign court has no authority to modify decree as to past due installments, notwithstanding the foreign court reserved jurisdiction to modify the decree as to future installments. Hatrak v. Hatrak, 206 Miss. 239, 39 So. 2d 779, 1949 Miss. LEXIS 258 (Miss. 1949).

Divorce decree of foreign state directing payments in installments for support of minor child may not be modified by Mississippi courts as to future installments under the full faith and credit clause, where jurisdiction to amend such future installments was retained by the court granting the divorce. Hatrak v. Hatrak, 206 Miss. 239, 39 So. 2d 779, 1949 Miss. LEXIS 258 (Miss. 1949).

A Louisiana judgment as to past due installments of alimony is final, and consequently is enforceable in Mississippi under the full faith and credit clause. Compton v. Compton, 188 Miss. 670, 196 So. 635, 1940 Miss. LEXIS 84 (Miss. 1940).

While one State may, on principles of interstate comity, recognize and give effect to divorce granted in another State, but not within protection of full faith and credit provision of Federal Constitution, such recognition will not be given to divorce granted on constructive service of process in State other than that of matrimonial domicile, and in which neither party is domiciled. Miller v. Miller, 173 Miss. 44, 159 So. 112, 1935 Miss. LEXIS 192 (Miss. 1935).

Full faith and credit clause of Federal Constitution held not to require recognition and enforcement of Arkansas divorce decree in Mississippi court, where Arkansas court had no jurisdiction of marriage status or of person of wife, who was only constructively served with process. Miller v. Miller, 173 Miss. 44, 159 So. 112, 1935 Miss. LEXIS 192 (Miss. 1935).

A decree of another state awarding alimony which may be annulled, varied, or modified by the court rendering it, is not enforceable in Mississippi by virtue of the full faith and credit clause. Gallant v. Gallant, 154 Miss. 832, 123 So. 883, 1929 Miss. LEXIS 189 (Miss. 1929), overruled, Hinds v. Primeaux, 367 So. 2d 925, 1979 Miss. LEXIS 2218 (Miss. 1979).

9. Child custody and visitation.

Mother’s petition to terminate father’s visitation rights with minor on the ground that he had sexually abused child was dismissed, because Mississippi court would give full faith and credit to the judgment of the Ohio court that father had not abused child. In Interest of K.M.G., 500 So. 2d 994, 1987 Miss. LEXIS 2242 (Miss. 1987).

Where temporary custody of the child had been vested in the mother by virtue of an order entered by a Pennsylvania court pursuant to a stipulation between the mother and father, and the courts of Pennsylvania had jurisdiction of an indisposed of proceeding between the parties regarding the custody of the child and of the father’s suit for divorce at the time suit was brought in the Mississippi court solely seeking custody of the child, any complaint that the father had as to the mother’s delay in presenting evidence as to her fitness to have custody of the child should have been addressed to the Pennsylvania court, and the Mississippi court should have declined to take jurisdiction of the proceeding and dismissed the father’s bill of complaint. Cox v. Cox, 233 Miss. 747, 102 So. 2d 799, 1958 Miss. LEXIS 437 (Miss. 1958).

In a proceeding for the custody of a minor child who had lived with his maternal grandparents in Mississippi since the death of its mother, the Mississippi court would not give full faith and credit to a decree of a Texas court awarding custody of the child to its natural father where process was obtained upon the maternal grandparents, who did not appear in the Texas court, by having process mailed by the clerk of the Texas court to the sheriff of the Mississippi county where the maternal grandparents and child resided, although under a Texas law the domicile of a child reverts to the father at the time of the mother’s death. Hutchins v. Moore, 231 Miss. 772, 97 So. 2d 748, 1957 Miss. LEXIS 565 (Miss. 1957).

Where the father invoked the jurisdiction of a Texas court to obtain custody of his children, after the mother, to whom custody had been largely awarded by the Mississippi court, had taken the children to that state, the judgment of the Texas court, awarding exclusive custody of the children to the mother, superseded the earlier decree of the Mississippi court, and was entitled to full faith and credit, and was res adjudicata of the facts and circumstances existing at the time of the rendition of the judgment. Logan v. Rankin, 230 Miss. 749, 94 So. 2d 330, 1957 Miss. LEXIS 419 (Miss. 1957).

A Tennessee court which had awarded custody of child to maternal grandparents residing in Mississippi by divorce decree leaving open question of further custody had no jurisdiction to award custody to father, where father had abandoned child, and child had never been domiciled in Tennessee, and decree awarding custody to father was not binding on Mississippi courts under full faith and credit clause of Federal Constitution, since that clause does not apply to the judgment of a court of another State having no jurisdiction. McAdams v. McFerron, 180 Miss. 644, 178 So. 333, 1938 Miss. LEXIS 30 (Miss. 1938).

Court having control of custody of children may permit their removal beyond limits of State and require proper bond for their return, but such power should be exercised with caution. Campbell v. Lovgren, 175 Miss. 4, 166 So. 365, 1936 Miss. LEXIS 19 (Miss. 1936).

10. Probate proceedings.

Question of whether beneficial interest in trust constitutes real or personal property is not subject to full faith and credit as judgment of sister state because Mississippi courts may intervene when disposition of decedent’s interests involve property interests which are subject to Mississippi’s jurisdiction. Estate of Waitzman, 507 So. 2d 24, 1987 Miss. LEXIS 2318 (Miss. 1987).

That certificate of probate court of sister State appointing administratrix de bonis non did not comply with Federal statute held not to preclude this State from giving effect thereto. Mobile & O.R. Co. v. Swain, 164 Miss. 825, 145 So. 627, 1933 Miss. LEXIS 255 (Miss. 1933).

A dismissal in another state of a probate claim for late filing is not required by the full faith and credit clause to be treated as a bar to the claim in ancillary probate proceedings in Mississippi. Buckingham Hotel Co. v. Kimberly, 138 Miss. 445, 103 So. 213, 1925 Miss. LEXIS 62 (Miss. 1925).

The judgment of another state establishing an instrument as a will, is not rendered, by the full faith and credit clause, conclusive as to real estate in Mississippi. Woodville v. Pizzati, 119 Miss. 442, 81 So. 127, 1919 Miss. LEXIS 22 (Miss. 1919).

11. Limitation of actions.

A dismissal for expiration of a statute of limitations is not an adjudication upon the merits and, therefore, such a dismissal is not entitled to full faith and credit in sister states under Art. 4 § 1 of the United States Constitution even if the dismissal is “with prejudice.” Lee v. Swain Bldg. Materials Co., 529 So. 2d 188, 1988 Miss. LEXIS 363 (Miss. 1988).

A statute prescribing a limitation period of three years for bringing suit upon a foreign judgment against a citizen of the state who was a resident of the state when suit was filed in the foreign state, is not in conflict with the full faith and credit clause. Bosich v. Skermetti, 146 Miss. 491, 112 So. 385, 1927 Miss. LEXIS 248 (Miss. 1927).

A statute providing that judgments recovered in other states against citizens of Mississippi shall not be enforced in the tribunals of that state if the cause of action which was the foundation of the judgment would have been barred in its tribunals by its statute of limitations, is unconstitutional. Christmas v. Russell, 72 U.S. 290, 18 L. Ed. 475, 1866 U.S. LEXIS 938 (U.S. 1866).

A statute providing that judgment obtained in any other state prior to its passage should be barred unless suit is brought on the judgment within two years after the passage of the act, does not deny full faith and credit to the judgment. President & Directors of Bank of Alabama v. Dalton, 50 U.S. 522, 13 L. Ed. 242, 1850 U.S. LEXIS 1440 (U.S. 1850).

12. Contracts violative of Mississippi law.

A judgment of another state may not be denied full faith and credit because it grew out of a transaction in “futures,” unlawful under Mississippi law. Armstrong v. Minkus, 93 Miss. 621, 47 So. 467, 1908 Miss. LEXIS 145 (Miss. 1908); Fauntleroy v. Lum, 210 U.S. 230, 28 S. Ct. 641, 52 L. Ed. 1039, 1908 U.S. LEXIS 1506 (U.S. 1908).

13. Workers’ compensation.

The full faith and credit clause does not go so far as to require this state to withhold the application of its workmen’s compensation laws because they conflict with the workmen’s compensation laws of another state. Mandle v. Kelly, 229 Miss. 327, 90 So. 2d 645, 1956 Miss. LEXIS 613 (Miss. 1956).

Where, under the law of Georgia where its contract was executed, the workmen’s compensation carrier was not obligated to pay to any person any benefit under any compensation law except the Georgia Act, the liability of the carrier could not be extended by application of the Mississippi Workmen’s Compensation Act contrary to the express terms of the policy. Mandle v. Kelly, 229 Miss. 327, 90 So. 2d 645, 1956 Miss. LEXIS 613 (Miss. 1956).

Where, under the circumstances, the exemption in Code 1942 § 6998-55(c), did not apply, the Mississippi Workmen’s Compensation Act was applicable to a situation where an employee, employed in Georgia, sustained injuries while operating his employer’s truck upon a Mississippi highway, and received extensive medical treatment while in the state for which payment had not been received, notwithstanding the Georgia Employer’s contention that the application of the Act would violate the full faith and credit clause of the United States Constitution, would constitute an interference with, or impairment of, the right to contract, and would interfere with interstate commerce. Mandle v. Kelly, 229 Miss. 327, 90 So. 2d 645, 1956 Miss. LEXIS 613 (Miss. 1956).

14. Foreign guardianship.

Where a natural mother and maternal grandmother of an adopted child were afforded their due process rights in an Arizona guardianship termination proceedings, and Arizona law provided that a guardianship established by consent of the natural parent was terminable upon revocation of that consent, the Mississippi Supreme Court was obliged to give full faith and credit to an Arizona judgment terminating the grandmother’s guardianship over the child. C.T. v. R.D.H., 843 So. 2d 690, 2003 Miss. LEXIS 201 (Miss. 2003).

§ 2. Privileges and immunities; Extradition; Fugitives Slaves

1. The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.

2. A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.

3. No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.

Editor’s Note —

The third clause was affected by the Thirteenth Amendment.

Cross References —

Privileges and immunities of citizens of the United States, see USCS Const. Amend. XIV, § 1.

Federal Aspects —

States as precluded from making or enforcing laws abridging privileges or immunities, USCS Constitution, Amendment 14.

Privileges and immunities in Puerto Rico, 48 USCS § 737.

Extension of Art. IV, Sec. 2, Cl. 1 to Guam, 48 USCS § 1421b.

Extension of Art. IV, Sec. 2, Cl. 1 to Virgin Islands, 48 USCS § 1561.

RESEARCH REFERENCES

ALR.

Constitutionality, construction, and application of Federal Fugitive Felon Act. 154 ALR 1168.

Am. Jur.

1 Am Jur 2d, Abortion and Birth Control § 14. 3B Am Jur 2d, Aliens and Citizens § 1850. 5 Am Jur 2d, Arrest § 39.

3B Am Jur 2d, Aliens and Citizens § 1850. 5 Am Jur 2d, Arrest § 39.

5 Am Jur 2d, Arrest § 39.

15 Am Jur 2d, Civil Rights § 3.

16A Am Jur 2d, Constitutional Law §§ 222, 398.

16B Am Jur 2d, Constitutional Law §§ 660, 790-822.

32A Am Jur 2d, Federal Courts § 923.

36 Am Jur 2d, Foreign Corporations § 183.

42 Am Jur 2d, Inheritance, Estate, and Gift Taxes § 19.

42 Am Jur 2d, Insolvency § 3.

82 Am Jur 2d, Workers’ Compensation § 26.

Lawyers’ Edition.

Constitutionality of state laws which discriminate against nonresidents or aliens as to fishing or hunting rights. 52 L Ed 2d 824.

Supreme Court’s construction and application of privileges and immunities clause of United States Constitution (Article IV, § 2, cl 1). 79 L Ed 2d 918.

Interstate extradition: Supreme Court’s construction of Extradition Act (18 USCS § 3182, and similar predecessor provisions) and of extradition clause (Art. IV, § 2, cl. 2) of Federal Constitution. 96 L. Ed. 2d 750.

Federal constitutional right to interstate travel–Supreme Court cases. 143 L Ed 2d 1101.

JUDICIAL DECISIONS

1. Privileges and immunities generally.

2. Taxes.

3. Child custody.

4. Long-arm statute.

5. Extradition.

1. Privileges and immunities generally.

Nonresident who engages in business in this state which is subject to state control is subject to suit for damages in this state on cause of action accruing here out of business transacted in this state and is properly brought into court by service of process upon secretary of state in manner provided by Code 1942 § 1438, and statutes so providing do not violate due process or immunities and privileges clauses of Federal Constitution. Condon v. Snipes, 205 Miss. 306, 38 So. 2d 752, 1949 Miss. LEXIS 433 (Miss. 1949).

A statute prohibiting counties from letting contracts for blank books, printed forms, stationery, or office supplies, to any bidder who is not a bona fide resident of the state actually engaged in the printing business, or who, being a nonresident, has not a printing plant in the state, does not infringe upon the privilege and immunities of citizens of the several states. State ex rel. Collins v. Senatobia Blank Book & Stationery Co., 115 Miss. 254, 76 So. 258, 1917 Miss. LEXIS 205 (Miss. 1917).

2. Taxes.

A privilege tax (Laws 1944, chap. 137, § 143) imposed on persons taking photographs in the state for development of the same outside the state, when construed as a tax only on the person who actually takes the pictures, is not unconstitutionally discriminatory in favor of local photographers by reason of the slight difference in the amount of tax as between the two classes. Craig v. Mills, 203 Miss. 692, 33 So. 2d 801, 1948 Miss. LEXIS 315 (Miss. 1948).

Classification of property for inheritance tax purposes, according to decedent’s residence, is permissible. Enochs v. State, 133 Miss. 107, 97 So. 534, 1923 Miss. LEXIS 125 (Miss. 1923).

3. Child custody.

Continuing and exclusive nature of chancery court jurisdiction over issues involving child custody precludes Youth Court from having exclusive original jurisdiction over proceedings involving abused child, where allegations of abuse are raised in context of custody proceeding over which chancery court already exercises jurisdiction. Rights of minor child suspected of having been sexually abused by parent, to access to court, were not impaired by chancery court’s considering allegations of sexual abuse without referring matter to Youth Court. Chrissy F. v. Mississippi Dep't of Public Welfare, 780 F. Supp. 1104, 1991 U.S. Dist. LEXIS 17998 (S.D. Miss. 1991), aff'd in part and rev'd in part, 995 F.2d 595, 1993 U.S. App. LEXIS 16843 (5th Cir. Miss. 1993).

4. Long-arm statute.

The “doing business” provision of the Mississippi long-arm statute cannot be invoked by a nonresident plaintiff in a diversity action against a nonresident defendant and the statute, so construed, does not deny a nonresident plaintiff privileges and immunities secured under the federal constitution. Breeland v. Hide-A-Way Lake, Inc., 585 F.2d 716 (C.A.5 (Miss.) 1978), on rehearing 593 F.2d 22.

Nonresident engaging in business of termite eradication and control in this state under license from State Plant Board authorizing him to conduct such business is subject to action for damages in this state for breach of contract entered into and to be performed in this state and may be brought into court by service of process upon secretary of state in manner provided by Code 1942 § 1438. Condon v. Snipes, 205 Miss. 306, 38 So. 2d 752, 1949 Miss. LEXIS 433 (Miss. 1949).

5. Extradition.

State statutes and decisions relating to habeas corpus and extradition are not applicable to interstate extradition except to extent that they may be in aid of, and not inconsistent with, the Constitution and laws of United States on the question. Bishop v. Jones, 207 Miss. 423, 38 So. 2d 920, 42 So. 2d 421, 1949 Miss. LEXIS 353 (Miss.), op. withdrawn, different results reached on reconsid., 207 Miss. 423, 42 So. 2d 421, 1949 Miss. LEXIS 352 (Miss. 1949).

Decision of governor of asylum state in extradition proceedings is subject to review by habeas corpus proceedings prior to granting relief to demanding state. Bishop v. Jones, 207 Miss. 423, 38 So. 2d 920, 42 So. 2d 421, 1949 Miss. LEXIS 353 (Miss.), op. withdrawn, different results reached on reconsid., 207 Miss. 423, 42 So. 2d 421, 1949 Miss. LEXIS 352 (Miss. 1949).

Decree of court in habeas corpus proceedings adjudging extradition proceedings to be insufficient both in form and substance but providing for discharge of relator unless within a stated period of time the sheriff should be served with a proper, legal and sufficient extradition warrant based upon proper, legal and sufficient papers and proceedings, violated accused’s constitutional right to have the trial judge as a judicial officer to not only pass upon the sufficiency of the extradition proceedings then before the court but also the sufficiency of any such papers that were to be thereafter supplied in their stead. Bishop v. Jones, 207 Miss. 423, 38 So. 2d 920, 42 So. 2d 421, 1949 Miss. LEXIS 353 (Miss.), op. withdrawn, different results reached on reconsid., 207 Miss. 423, 42 So. 2d 421, 1949 Miss. LEXIS 352 (Miss. 1949).

The interstate extradition of criminals is governed by the laws of the United States, and the Federal Constitution and statutes must be looked to for authority in extradition matters. Ex parte Walters, 106 Miss. 439, 64 So. 2, 1913 Miss. LEXIS 151 (Miss. 1913).

§ 3. Admission of new states; Public lands

1. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned as well as of the Congress.

2. The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State.

RESEARCH REFERENCES

Am. Jur.

27 Am Jur 2d, Energy and Power Sources § 137. 32A Am Jur 2d, Federal Courts § 583. 45 Am Jur 2d, Irrigation § 84. 77 Am Jur 2d, United States §§ 30, 32.

32A Am Jur 2d, Federal Courts § 583.

45 Am Jur 2d, Irrigation § 84.

77 Am Jur 2d, United States §§ 30, 32.

§ 4. Republican government

The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion; and on application of the Legislature, or of the executive (when the Legislature can not be convened) against domestic violence.

RESEARCH REFERENCES

Am. Jur.

16 Am Jur 2d, Constitutional Law § 21.

16B Am Jur 2d, Constitutional Law §§ 681-688.

32A Am Jur 2d, Federal Courts § 598.

JUDICIAL DECISIONS

1. In general.

In light of the carefully-drafted language and legislative history of 47 USCS § 227(e)(1), and in spite of the presumption against preemption that attaches to the state’s exercise of its police power, there is an inherent federal objective in the Truth in Caller ID Act of 2009 to protect non-harmful spoofing; Mississippi Caller ID Anti-Spoofing Act’s proscription of non-harmful spoofing (spoofing done without intent to defraud, cause harm, or wrongfully obtain anything of value) frustrates this federal objective and is, therefore, conflict-preempted. Teltech Sys. v. Bryant, 702 F.3d 232, 2012 U.S. App. LEXIS 25217 (5th Cir. Miss. 2012).

Because court held that Mississippi Caller ID Anti-Spoofing Act was conflict-preempted by Truth in Caller ID Act of 2009, court did not need to consider its validity under dormant Commerce Clause or First Amendment. Teltech Sys. v. Bryant, 702 F.3d 232, 2012 U.S. App. LEXIS 25217 (5th Cir. Miss. 2012).

An indictment found by a grand jury from which negro citizens were intentionally excluded is at variance with the Constitutional guarantee of a republican form of government. Farrow v. State, 91 Miss. 509, 45 So. 619, 1907 Miss. LEXIS 130 (Miss. 1907).

Article V Amendments

The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or on the application of the Legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate.

RESEARCH REFERENCES

Am. Jur.

16 Am Jur 2d, Constitutional Law §§ 12, 15, 45.

CJS.

C.J.S. Constitutional Law § 5.

JUDICIAL DECISIONS

1. In general.

Circuit court did not have subject matter jurisdiction over election contest, arising of primary election for state representative in which issue was which candidate received the most votes, inasmuch as question was one peculiarly within competence of legislature itself. Henry v. Henderson, 697 So. 2d 447, 1997 Miss. LEXIS 298 (Miss. 1997), overruled in part, Dillon v. Myers, 227 So.3d 923, 2017 Miss. LEXIS 134 (Miss. 2017).

Article VI Debts Validated; Supreme Law of Land; Oath of Office

1. All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

2. This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding.

3. The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation, to support this Constitution; but no religious tests shall ever be required as a qualification to any office or public trust under the United States.

ATTORNEY GENERAL OPINIONS

The Department of Public Safety may implement the federal ‘Driver’s Protection Act of 1994’ by enacting regulations, if necessary, under the Mississippi Administrative Procedures Act (Miss. Code Section 25-43-1 et seq.) to effectuate superseding federal exemptions to the Mississippi Public Records Act, and if it so desires, may adopt regulations pertaining to an ‘opt-out’ system. Ingram, Aug. 29, 1997, A.G.Op. #97-0515.

RESEARCH REFERENCES

ALR.

Binding effect upon state courts of opinion of United States Supreme Court supported by less than a majority of all its members. 65 A.L.R.3d 504.

Application of state and local construction and building regulations to contractors engaged in construction projects for the federal government. 131 A.L.R. Fed. 583.

Am. Jur.

16 Am Jur 2d, Constitutional Law §§ 50-55.

CJS.

C.J.S. Banks and Banking §§ 485, 551 to 552.

C.J.S. Constitutional Law §§ 2 to 4, 528.

C.J.S. Employer-Employee Relationship § 68.

C.J.S. Insurance §§ 33 to 35.

C.J.S. Officers and Public Employees § 34.

C.J.S. States §§ 43-51.

JUDICIAL DECISIONS

1. Supremacy of law.

2. Oath or affirmation.

1. Supremacy of law.

In light of 47 USCS § 227(e)(1)’s carefully-drafted language and legislative history, and in spite of presumption against preemption that attaches to State’s exercise of its police power, there is inherent federal objective in Truth in Caller ID Act of 2009 to protect non-harmful spoofing; Mississippi Caller ID Anti-Spoofing Act’s proscription of non-harmful spoofing (spoofing done without intent to defraud, cause harm, or wrongfully obtain anything of value) frustrates this federal objective and is, therefore, conflict-preempted. Teltech Sys. v. Bryant, 702 F.3d 232, 2012 U.S. App. LEXIS 25217 (5th Cir. Miss. 2012).

Because court held that Mississippi Caller ID Anti-Spoofing Act was conflict-preempted by Truth in Caller ID Act of 2009, court did not need to consider its validity under dormant Commerce Clause or First Amendment. Teltech Sys. v. Bryant, 702 F.3d 232, 2012 U.S. App. LEXIS 25217 (5th Cir. Miss. 2012).

As defendant manufacturer’s cigarette lighter complied with an established federal safety standard for child resistance, plaintiffs’ state law products liability claim was preempted by federal law, and the manufacturer was properly granted summary judgment. Frith v. BIC Corp., 863 So. 2d 960, 2004 Miss. LEXIS 14 (Miss. 2004).

Chancellor properly considered a former spouse’s veteran’s disability benefits in an award of alimony; the former spouse’s claim that it violated the Supremacy Clause to consider such benefits in calculating the spouse’s ability to pay was rejected. Steiner v. Steiner, 788 So. 2d 771, 2001 Miss. LEXIS 165 (Miss. 2001).

Cornerstone of preemption is that state law which conflicts with federal law is invalid under Supremacy Clause. Cooper v. GMC, 702 So. 2d 428, 1997 Miss. LEXIS 713 (Miss. 1997).

State civil service statute and system of administrative appeal or judicial review is not unconstitutional or contrary to federal supremacy clause because, as matter of federal law, state agencies cannot be sued for damages in state court under 42 U.S.C.S. § 1983. Wright v. White, 693 So. 2d 898, 1997 Miss. LEXIS 160 (Miss. 1997), overruled in part, E. Miss. State Hosp. v. Callens, 892 So. 2d 800, 2004 Miss. LEXIS 361 (Miss. 2004).

Retroactive application of §81-5-105, which limits the personal liability of a former officer of a failed federal savings and loan association to gross negligence, intentional tortious conduct, intentional breach of the duty of loyalty, and corporate waste, does not violate the Supremacy Clause; §81-5-105 mirrors the policy embodied in 12 USCS § 1821(k) (Financial Institutions, Reform, Recovery, and Enforcement Act), showing that state law compliments federal policy. Resolution Trust Corp. v. Scott, 887 F. Supp. 937, 1995 U.S. Dist. LEXIS 8119 (S.D. Miss. 1995).

Physician whose hospital staff privileges were suspended was not denied procedural due process where statutory scheme provided for appeal to the Chancery Court; 30-day period for appeal to Chancery Court in such matter did not violate Supremacy Clause of Article VI of the US Const. Caine v. Hardy, 943 F.2d 1406, 1991 U.S. App. LEXIS 22455 (5th Cir. Miss. 1991), cert. denied, 503 U.S. 936, 112 S. Ct. 1474, 117 L. Ed. 2d 618, 1992 U.S. LEXIS 1727 (U.S. 1992).

By virtue of the supremacy clause, the Federal Uniformed Services Former Spouses’ Protection Act overrides Mississippi’s long-arm statutes to the extent that Mississippi law would exceed the limitations of the federal enactment. Thus, a former husband’s absence from Mississippi for 15 continuous years precluded personal jurisdiction by reason of residence or domicile since the language of the federal Act makes it clear that only current domicile or residence may suffice to confer authority upon a court to adjudge rights in a former service person’s military retirement pension. Petters v. Petters, 560 So. 2d 722, 1990 Miss. LEXIS 201 (Miss. 1990).

The fact that a trial judge lacks sentenc-ing discretion does not necessarily mean the prescribed sentence meets federal constitutional proportionality requirements. Thus, notwithstanding §99-19-81, which requires habitual offenders to be sentenced to a maximum term, the trial court had authority, as a function of the Supremacy Clause, to review a particular sentence in light of constitutional principles of proportionality. Clowers v. State, 522 So. 2d 762, 1988 Miss. LEXIS 94 (Miss. 1988), limited, Barnwell v. State, 1997 Miss. LEXIS 495 (Miss. Oct. 9, 1997), limited, Espinoza v. State, 1998 Miss. App. LEXIS 618 (Miss. Ct. App. July 28, 1998).

Under Article VI, § 2, federal law has preemptive effect when the Congress, acting within its constitutional powers, expressly so provides. Transcontinental Gas Pipeline Corp. v. State Oil & Gas Bd., 457 So. 2d 1298, 1984 Miss. LEXIS 1869 (Miss. 1984), rev'd, 474 U.S. 409, 106 S. Ct. 709, 88 L. Ed. 2d 732, 1986 U.S. LEXIS 47 (U.S. 1986).

Truth in Lending claims and defenses are well within the competence of state courts, since they are the subject of concurrent federal and state jurisdiction, and thus, under US Const Art 6 § 2, a state court was not free to refuse jurisdiction over a Truth in Lending claim, based as it is on rights created by the Constitution and laws of the United States. Brown v. Credit Ctr., Inc., 444 So. 2d 358, 1983 Miss. LEXIS 3053 (Miss. 1983).

Every treaty made by the authority of the United States is superior to the constitution or laws of any individual state and the law of the state, if contrary to the treaty, is void. Guiseppe v. Cozzani, 238 Miss. 273, 118 So. 2d 189, 1960 Miss. LEXIS 401 (Miss. 1960).

The imposition of a privilege tax on an amount received from a Federal agency for services rendered in compressing cotton was not violative of the Federal Constitution as being a tax on one of the Federal governmental agencies, since the tax was not imposed on a Federal governmental agency but on income derived from such an agency. Compress of Union v. Stone, 188 Miss. 49, 193 So. 329, 1940 Miss. LEXIS 6 (Miss.), cert. denied, 311 U.S. 668, 61 S. Ct. 27, 85 L. Ed. 429, 1940 U.S. LEXIS 411 (U.S. 1940).

2. Oath or affirmation.

The requirement of oath to support the Constitution of the United States, imposed upon members of state legislatures and all executive and judicial officers of the state, is not merely directory, but compliance therewith is essential. Taylor v. Thomas, 89 U.S. 479, 22 L. Ed. 789, 1874 U.S. LEXIS 1282 (U.S. 1875).

Article VII Ratification of Original Articles

The ratification of the conventions of nine States, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.

Done in convention by the unanimous consent of the States present the seventeenth day of September in the year of our Lord one thousand seven hundred and eighty-seven and of the Independence of the United States of America the twelfth. In Witness whereof we have hereunto subscribed our names,

Go. WASHINGTON — President and Deputy from Virginia. New Hampshire. John Langdon, Nicholas Gilman. Massachusetts. Nathaniel Gorham, Rufus King. Connecticut. Wm. Saml. Johnson, Roger Sherman. New York. Alexander Hamilton. New Jersey. Wil. Livingston, Wm. Paterson, David Brearley, Jona. Dayton. Pennsylvania. B. Franklin, Thomas Mifflin, Robt. Morris, Geo. Clymer, Tho. Fitzsimmons, Jared Ingersoll. James Wilson, Gouv. Morris. Delaware. Geo. Read, Jun’r, Gunning Bedford, John Dickinson, Richard Bassett. Jaco. Broom, Maryland. James Mc’Henry, Dan. of St. Thos. Jenifer, Danl Carroll. Virginia. John Blair, James Madison, Jr. North Carolina. Wm. Blount, Rich’d Dobbs Spaight, Hu. Williamson. South Carolina. J. Rutledge, Charles Cotesworth Pinckney, Charles Pinckney, Pierce Butler, Georgia. William Few, Abr. Baldwin. Attest: WILLIAM JACKSON, Secretary

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Editor’s Note —

In May, 1785, a committee of Congress made a report recommending an alteration in the Articles of Confederation, but no action was taken on it, and it was left to the State Legislatures to proceed in the matter. In January, 1786, the Legislature of Virginia passed a resolution providing for the appointment of five commissioners, who, or any three of them, should meet such commissioners as might be appointed in the other States of the Union, at a time and place to be agreed upon, to take into consideration the trade of the United States; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony; and to report to the several States such an act, relative to this great object, as, when ratified by them, will enable the United States in Congress effectually to provide for the same. The Virginia commissioners, after some correspondence, fixed the first Monday in September as the time, and the city of Annapolis as the place for the meeting, but only four other States were represented, viz.: Delaware, New York, New Jersey, and Pennsylvania; the commissioners appointed by Massachusetts, New Hampshire, North Carolina, and Rhode Island failed to attend. Under the circumstances of so partial a representation, the commissioners present agreed upon a report, (drawn by Mr. Hamilton, of New York,) expressing their unanimous conviction that it might essentially tend to advance the interests of the Union if the States by which they were respectively delegated would concur, and use their endeavors to procure the concurrence of the other States, in the appointment of commissioners to meet at Philadelphia on the second Monday of May following, to take into consideration the situation of the United States; to devise such further provisions as should appear to them necessary to render the Constitution of the Federal Government adequate to the exigencies of the Union; and to report such an act for that purpose to the United States in Congress assembled as, when agreed to by them, and afterwards confirmed by the Legislatures of every State, would effectually provide for the same.

Congress, on the 21st of February, 1787, adopted a resolution in favor of a convention, and the Legislatures of those States which had not already done so (with the exception of Rhode Island) promptly appointed delegates. On the 25th of May, seven States having convened, George Washington, of Virginia, was unanimously elected President, and the consideration of the proposed Constitution was commenced. On the 17th of September, 1787, the Constitution as engrossed and agreed upon was signed by all the members present, except Mr. Gerry, of Massachusetts, and Messrs. Mason and Randolph, of Virginia. The president of the convention transmitted it to Congress, with a resolution stating how the proposed Federal Government should be put in operation, and an explanatory letter. Congress, on the 28th of September, 1787, directed the Constitution so framed, with the resolutions and letter concerning the same, to “be transmitted to the several Legislatures in order to be submitted to a convention of delegates chosen in each State by the people thereof, in conformity to the resolves of the convention.”

On the 4th of March, 1789, the day which had been fixed for commencing the operations of Government under the new Constitution, it had been ratified by the conventions chosen in each State to consider it, as follows: Delaware, December 7, 1787; Pennsylvania, December 12, 1787; New Jersey, December 18, 1787; Georgia, January 2, 1788; Connecticut, January 9, 1788; Massachusetts, February 6, 1788; Maryland, April 28, 1788; South Carolina, May 23, 1788; New Hampshire, June 21, 1788; Virginia, June 25, 1788; and New York, July 26, 1788.

The President informed Congress, on the 28th of January, 1790, that North Carolina had ratified the Constitution November 21, 1789; and he informed Congress on the 1st of June, 1790, that Rhode Island had ratified the Constitution May 29, 1790. Vermont, in convention, ratified the Constitution January 10, 1791, and was on March 4, 1791, by an act of Congress approved February 18, 1791, “received and admitted into this Union as a new and entire member of the United States.”

AMENDMENTS

Amendment I Freedom of religion, speech and press; peaceful assemblage; petition of grievances

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Editor’s Note —

Proposal and Ratification of Amendments 1 to 10. The first ten amendments to the Constitution of the United States, which comprise the Bill of Rights, set out in 1 Stat. 97, were proposed to the Legislatures of the several States by the First Congress, on September 25, 1789. They were ratified by the following States, and the notifications of ratification by the Governors or Secretaries of State thereof were communicated successively by the President to Congress: New Jersey, November 20, 1789; Maryland, December 19, 1789; North Carolina, December 22, 1789; South Carolina, January 19, 1790; New Hampshire, January 25, 1790; Delaware, January 28, 1790; New York, February 27, 1790; Pennsylvania, March 10, 1790; Rhode Island, June 7, 1790; Vermont, November 3, 1791; and Virginia, December 15, 1791. The Legislatures of Connecticut, Georgia, and Massachusetts ratified them on April 19, 1939, March 18, 1939, and March 2, 1939, respectively.

Twelve articles were proposed on September 25, 1789. The first two, which failed of adoption, read as follows:

“Art. I. After the first enumeration required by the first article of the Constitution, there shall be one representation for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred representatives, nor more than one representative for every fifty thousand persons.

“Art. II. No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened.”

Cross References —

Freedom of speech and press as protected by the Fourteenth Amendment against state action, see Fourteenth Amendment.

RESEARCH REFERENCES

ALR.

Freedom of speech and press as limitation on power to punish for contempt. 159 A.L.R. 1379.

Right of owner of housing development or apartment houses to restrict canvassing, peddling, solicitation of contributions, etc. 3 A.L.R.2d 1431.

Public regulation and prohibition of sound amplifiers or loud-speaker broadcasts in streets and other public places. 10 A.L.R.2d 627.

Propriety of exclusion of press or other media representatives from civil trial. 79 A.L.R.3d 401.

Validity, under establishment of religion clause of federal or state constitution, of provision making day of religious observance a legal holiday. 90 A.L.R.3d 752.

Validity, under state constitution and laws, of issuance by state or state agency of revenue bonds to finance or refinance construction projects at private religious-affiliated colleges or universities. 95 A.L.R.3d 1000.

Validity, propriety, and effect of allowing or prohibiting media’s broadcasting, recording, or photographing court proceedings. 14 A.L.R.4th 121.

Right of jailed or imprisoned parent to visit from minor child. 15 A.L.R.4th 1234.

Advertising as ground for disciplining attorney. 30 A.L.R.4th 742.

Validity of guardianship proceeding based on brainwashing of subject by religious, political, or social organization. 44 A.L.R.4th 1207.

Validity, construction, and application of statutes or ordinances involved in prosecutions for transmission of wagers or wagering information related to bookmaking. 53 A.L.R.4th 801.

Newspaper’s liability to reader-investor for negligent but nondefamatory misstatement of financial news. 56 A.L.R.4th 1162.

Intrusion by news-gathering entity as invasion of right of privacy. 69 A.L.R.4th 1059.

Free exercise of religion as applied to individual’s objection to obtaining or disclosing social security number. 93 A.L.R.5th 1.

Validity of state statutes and administrative regulations regulating internet communications under commerce clause and First Amendment of federal constitution.98 A.L.R.5th 1.

Search warrant as authorizing search of structures on property other than main house or other building, or location other than designated portion of building. 104 A.L.R.5th 165.

First Amendment protection afforded to commercial and home video games. 106 A.L.R.5th 337.

First amendment challenges to display of religious symbols on public property. 107 A.L.R.5th 1.

First Amendment protection afforded to comic books, comic strips, and cartoons. 118 A.L.R.5th 213.

Landlord’s refusal to rent to unmarried couple as protected by landlord’s religious beliefs. 10 A.L.R.6th 513.

Wearing of Religious Symbols in Courtroom as Protected by First Amendment. 18 A.L.R.6th 771.

Nonsexual Misconduct or Irregularity as Amounting to “Conduct Unbecoming an Officer,” Justifying Police Officer’s Demotion or Removal or Suspension from Duty. 19 A.L.R.6th 217.

Validity of Statutes and Ordinances Regulating Operation of Sexually Oriented Businesses–Legal Issues and Principles. 20 A.L.R.6th 161.

Propriety of Radio and Television Attorney Advertisements. 20 A.L.R.6th 385.

Validity of Statutes and Ordinances Regulating Operation of Sexually Oriented Businesses–Types of Businesses Regulated. 21 A.L.R.6th 425.

Validity of Bigamy and Polygamy Statutes and Constitutional Provisions. 22 A.L.R.6th 1.

Cable Television Equipment or Services as Subject to Sales or Use Tax. 23 A.L.R.6th 165.

Invocation and Effect of State Secrets Privilege. 23 A.L.R.6th 521.

Validity of Statutes and Ordinances Regulating the Operation of Sexually Oriented Businesses—Nature of Regulation. 23 A.L.R.6th 573.

Constitutional Validity of State or Local Regulation of Contributions by or to Political Action Committees. 24 A.L.R.6th 179.

Validity of Statutes Imposing Residency Restrictions on Registered Sex Offenders. 25 A.L.R.6th 227.

Constitutionality of Requiring Presentation of Photographic Identification in Order to Vote. 27 A.L.R.6th 541.

Validity of Super-Majority Voting Requirements in Constitutional, Statutory, and Other Public Provisions. 28 A.L.R.6th 439.

Claims for Vicarious and Individual Liability for Infliction of Emotional Distress Derived from Use of Internet and Electronic Communications. 30 A.L.R.6th 241.

First Amendment Protection Afforded to Web Site Operators. 30 A.L.R. 6th 299.

Constitutionality of Legislative Prayer Practices. 30 A.L.R.6th 459.

Validity, and Standing to Challenge Validity, of State Statute Prohibiting Flag Desecration and Misuse. 31 A.L.R.6th 333.

Validity, Construction, and Application of Exclusion or Inclusion of Religious Uses/Places of Worship in Single-Family Residential Zoning Districts. 31 A.L.R.6th 395.

Validity, Construction, and Application of State Statutes Prohibiting, Limiting, or Regulating Fishing or Hunting in State by Nonresidents. 31 A.L.R.6th 523.

Validity, Construction, and Application of State Statutes Imposing Criminal Penalties for Failure to Register as Required Under Sex Offender or Other Criminal Registration Statutes. 33 A.L.R.6th 91.

Validity, Construction, and Application of State Statutes Prohibiting Child Luring as Applied to Cases Involving Luring of Child by Means of Electronic Communications. 33 A.L.R.6th 373.

Constitutionality of State Statutes and Local Ordinances Regulating Concealed Weapons. 33 A.L.R.6th 407.

Validity, Construction, and Application of State Statutory Requirements Concerning Placement of Independent Candidate for President of the United States on Ballot. 33 A.L.R.6th 513.

Construction and Application of Elections Clause of United States Constitution, U.S. Const. Art. I, § 4, cl.1, and State Constitutional Provisions Concerning Congressional Elections. 34 A.L.R.6th 643.

Validity, Construction, and Application of State and Municipal Enactments Regulating Lobbying and of Lobbying Contracts. 35 A.L.R.6th 1.

Validity, Construction, and Application of State Statutes Prohibiting Child Luring as Applied to Cases Involving Luring of Child by Means of Verbal or Other Nonelectronic Communications. 35 A.L.R.6th 361.

First Amendment Protection Afforded to Blogs and Bloggers. 35 A.L.R.6th 407.

Constitutionality of State Acts Requiring Employers That Provide Group Insurance Coverage for Prescriptions to Include Prescription Contraceptives in That Coverage. 35 A.L.R.6th 593.

Constitutional Challenges to State Child Abuse Registries. 36 A.L.R.6th 475.

State Statutes or Ordinances Requiring Persons Previously Convicted of Crime to Register with Authorities as Applied to Juvenile Offenders–Constitutional Issues. 37 A.L.R.6th 55.

Defamation by Radio–Actual Malice. 40 A.L.R.6th 231.

Validity, Construction, and Application of State Statutes Regulating or Proscribing Payment in Connection with Gathering Signatures on Nominating Petitions for Public Office or Initiative Petitions. 40 A.L.R.6th 317.

Actions by or Against Individuals or Groups Protesting or Picketing at Funerals. 40 A.L.R.6th 375.

Validity, Construction, and Application of Statutory and Municipal Enactments and Conditions of Release Prohibiting Sex Offenders from Parks. 40 A.L.R.6th 419.

Recovery for Nonconsensual Human Medical Experimentation. 42 A.L.R.6th 301.

Defamation by Television–Actual Malice. 42 A.L.R.6th 353.

Validity, Construction, and Application of State Vexatious Litigant Statutes. 45 A.L.R.6th 493.

Validity of Restrictions Imposed During National Political Conventions Impinging Upon Rights to Freedom of Speech and Assembly Under First Amendment. 46 A.L.R.6th 465.

Validity of Statute Requiring Proof and Disclosure of Information as Condition of Registration to Vote. 48 A.L.R.6th 181.

Civil Liability of Internet Dating Services. 48 A.L.R.6th 351.

Practices Forbidden by State Deceptive Trade Practice and Consumer Protection Acts–Pyramid or Ponzi or Referral Sales Schemes. 48 A.L.R.6th 511.

Validity of Adverse Personnel Action or Adverse Action Affecting Student’s Academic Standing Based on Internet Posting or Expression, Including Social Networking. 49 A.L.R.6th 115.

Challenges to Regulation of Balloon Signs or Other Inflated Signs. 49 A.L.R.6th 153.

Validity of Statute Providing for Purging Voter Registration Lists of Inactive Voters. 51 A.L.R.6th 287.

Application of Municipal Taxpayer Standing Doctrine. 51 A.L.R.6th 333.

Constitutionality, Construction, and Application of Statute or Regulatory Action Respecting Political Advertising–Print Media Cases. 51 A.L.R.6th 359.

Restrictive Covenants or Homeowners’ Association Regulations Restricting or Prohibiting Flags, Signage, or the Like on Homeowner’s Property as Restraint on Free Speech. 51 A.L.R.6th 533.

Validity, Construction, and Application of State Statutes and Municipal Ordinances Proscribing Failure or Refusal to Obey Police Officer’s Order to Move On, or Disperse, on Street, as Disorderly Conduct. 52 A.L.R.6th 125.

Constitutionality, Construction, and Application of Statute or Regulatory Activity Respecting Political Advertising Nonprint Media Cases, or Cases Implicating Both Print and Nonprint Media. 53 A.L.R.6th 491.

Application of First Amendment’s “Ministerial Exception” or “Ecclesiastical Exception” to State Civil Rights Claims. 53 A.L.R.6th 569.

Validity, Construction, and Application of Interstate Corrections Compact and Implementing State Laws–Jurisdictional Issues, Governing Law, and Validity and Applicability of Compact. 54 A.L.R.6th 1.

Construction and Application of Libel-Proof Doctrine. 54 A.L.R.6th 165.

Validity of Statute Restricting Voter Registration Solicitations by Third Parties or Organizations. 55 A.L.R.6th 599.

Validity of Statute Limiting Time Period for Voter Registration. 56 A.L.R.6th 523.

Construction and Application of Interstate Corrections Compact and Implementing State Laws–Equivalency of Conditions and Rights and Responsibilities of Parties. 56 A.L.R.6th 553.

Validity of Criminal State Racketeer Influenced and Corrupt Organizations Acts and Similar Acts Related to Gang Activity and the Like. 58 A.L.R.6th 385.

Validity, Construction, and Application of State Requirements for Placement of Independent Candidates for United States Senate on Ballot. 59 A.L.R.6th 111.

Adoption of Child by Same-Sex Partners. 61 A.L.R.6th 1.

Application of Anti-SLAPP (“Strategic Lawsuit Against Public Participation”) Statutes to Real Estate Development, Land Use, and Zoning Disputes. 64 A.L.R.6th 365.

When Does Use of Pepper Spray, Mace, or Other Similar Chemical Irritants Constitute Violation of Constitutional Rights. 65 A.L.R.6th 93.

Construction and Application of Supreme Court’s Holding in Citizens United v. Federal Election Com’n, 130 S. Ct. 876, 175 L. Ed. 2d 753, 187 L.R.R.M. (BNA) 2961, 159 Lab. Cas. (CCH) P 10166 (2010), That Government May Not Prohibit Independent and Indirect Corporate Expenditures on Political Speech. 65 A.L.R.6th 503.

Validity, Construction, and Application of State and Local Laws Providing for Civil Liability for Tobacco Sales or Distribution to Minors. 66 A.L.R.6th 315.

Propriety of Prohibition of Display or Wearing of Confederate Flag. 66 A.L.R.6th 493.

Regulation of Business of Tattooing. 67 A.L.R.6th 395.

Validity of Runoff Voting Election Methodology. 67 A.L.R.6th 609.

Constitutionality of State Laws Regulating Use or Sale of Physician-Identifying Prescription Information for Commercial Purposes. 67 A.L.R.6th 629.

Validity, Construction, and Application of Criminal Statutes and Ordinances to Prosecution for Dogfighting. 68 A.L.R.6th 115.

Validity, Construction, and Application of Statutes and Ordinances to Prosecution for Cockfighting. 69 A.L.R.6th 207.

Constitutionality of Restricting Public Speech in Street, Sidewalk, Park, or Other Public Forum – Characteristics of Forum. 70 A.L.R.6th 513.

Validity of State and Municipal Indecent Exposure Statutes and Ordinances. 71 A.L.R.6th 283.

Constitutionality of Restricting Public Speech in Street, Sidewalk, Park, or Other Public Forum – Manner of Restriction. 71 A.L.R.6th 471.

Constitutional Challenges to Compelled Speech – General Principles. 72 A.L.R.6th 513.

Constitutional Challenges to Compelled Speech – Particular Situations or Circumstances. 73 A.L.R.6th 281.

Validity of Parental Responsibility Statutes and Ordinances Holding Parents Liable for Criminal Acts of Their Children. 74 A.L.R.6th 181.

Challenges to Write-in Ballots and Certification of Write-in Candidates. 75 A.L.R.6th 311.

Validity, Construction and Application of Telephone Consumer Protection Act (47 U.S.C.A. § 227 [47 USCS § 227])–State Cases. 77 A.L.R.6th 1.

Validity, Construction, and Effect of Statute, Ordinance, or Other Measure Involving Fluoridation of Public Water Supply. 78 A.L.R.6th 229.

Application, Recognition, or Consideration of Jewish Law by Courts in United States. 81 A.L.R.6th 1.

Application, Recognition, or Consideration of Islamic Law by Courts in United States. 82 A.L.R.6th 1.

Claims of Student Plagiarism and Student Claims Arising from Such Allegations. 83 A.L.R.6th 195.

Criminal and Civil Liability of Civilians and Police Officers Concerning Recording of Police Actions. 84 A.L.R.6th 89.

Application of Anti-SLAPP (“Strategic Lawsuit Against Public Participation”) Statutes to Invasion of Privacy Claims. 85 A.L.R.6th 475.

Validity of Grandparent Visitation Statutes. 86 A.L.R.6th 1.

Validity, Construction, and Application of State Computer Crime and Fraud Laws. 87 A.L.R.6th 1.

Validity, Construction, and Application of Statutes Directly or Indirectly Proscribing Unauthorized Practice of Law on Internet. 87 A.L.R.6th 479.

Validity, under federal constitution, of public school or state college regulation of student newspapers, magazines, or other publications – federal cases. 16 A.L.R. Fed. 182.

Validity, construction, and application of provisions of Title VII of Civil Rights Act of 1964 (42 USCS §§ 2000e et seq.) and implementing regulations, making religious discrimination in employment unlawful. 22 A.L.R. Fed. 580.

Construction of the freedom of speech and assembly provisions of § 101(a)(2) of the Labor-Management Reporting and Disclosure Act of 1959 (29 USCS § 411(a)(2)), included in the Bill of Rights of members of labor organizations. 26 A.L.R. Fed. 806.

First Amendment as immunizing newsman from liability for tortious conduct while gathering news. 28 A.L.R. Fed. 904.

Prohibiting public employee from running for elective office as violation of employee’s federal constitutional rights. 44 A.L.R. Fed. 306.

Validity, under First Amendment and 42 USCS § 1983, of public college or university’s refusal to grant formal recognition to, or permit meetings of, student homosexual organizations on campus. 50 A.L.R. Fed. 516.

Prohibition of federal agency’s keeping of records on methods of individual exercise of First Amendment rights, under Privacy Act of 1974 (5 USCS § 552a(e)(7)). 63 A.L.R. Fed. 674.

Propriety, under First Amendment, of school board’s censorship of public school libraries or coursebooks. 64 A.L.R. Fed. 771.

Propriety of federal court’s exclusion of public from criminal or civil trial in order to protect trade secrets. 69 A.L.R. Fed. 892.

Dismissal of, or other adverse personnel action relating to, public employee for political patronage reasons as violative of First Amendment. 70 A.L.R. Fed. 371.

What oral statement of student is sufficiently disruptive so as to fall beyond protection of First Amendment. 76 A.L.R. Fed. 599.

Restriction on dissemination of information obtained through pretrial discovery proceedings as violating Federal Constitution’s First Amendment–federal cases. 81 A.L.R. Fed. 471.

Warrantless search by government employer of employee’s workplace locker, desk, or the like as violation of Fourth Amendment privacy rights–federal cases. 91 A.L.R. Fed. 226.

Physical examination of child’s body for evidence of abuse as violative of Fourth Amendment or as raising Fourth Amendment issue. 93 A.L.R. Fed. 530.

Free exercise of religion clause of First Amendment as defense to tort liability. 93 A.L.R. Fed. 754.

First Amendment guaranty of freedom of speech or press as defense to liability stemming from speech allegedly causing bodily injury. 94 A.L.R. Fed. 26.

Giving of invocation with religious content at public-school-sponsored events to which public is invited or admitted as violation of establishment clause of First Amendment. 98 A.L.R. Fed. 206.

What constitutes “hybrid rights” claim under Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876.163 A.L.R. Fed. 493.

Protection of Commercial Speech Under First Amendment – Supreme Court Cases. 164 A.L.R. Fed. 1.

Am. Jur.

3B Am. Jur. 2d, Aliens and Citizens §§ 1848, 1941.

7 Am. Jur. 2d, Attorneys at Law § 8.

9 Am. Jur. 2d, Bankruptcy § 11.

16 Am. Jur. 2d, Constitutional Law §§ 43, 137, 154, 336-355.

16A Am Jur 2d, Constitutional Law §§ 375-392.

16A Am. Jur. 2d, Constitutional Law §§ 397, 415-418, 424-606, 613, 618, 622, 627.

16B Am. Jur. 2d, Constitutional Law §§ 651, 652, 864.

21 Am. Jur. 2d, Criminal Law § 529.

24 Am. Jur. 2d, Disorderly Houses § 20.

24 Am. Jur. 2d, Divorce and Separation § 107.

25 Am. Jur. 2d, Elections §§ 3, 4, 102.

26 Am. Jur. 2d, Elections §§ 209, 228, 229, 233, 239, 241, 246-249, 252, 259, 286, 291.

29 Am. Jur. 2d, Evidence § 180.

32 Am. Jur. 2d, Federal Courts § 460.

35 Am. Jur. 2d, Federal Tax Enforcement § 728.

37A Am. Jur. 2d, Freedom of Information Acts § 480.

42 Am. Jur. 2d, Injunctions §§ 63, 76, 81, 82, 83, 85.

45A Am. Jur. 2d, Job Discrimination § 43.

45B Am. Jur. 2d, Job Discrimination § 804.

48 Am. Jur. 2d, Labor and Labor Relations §§ 89, 311.

50 Am. Jur. 2d, Libel and Slander § 513.

51 Am. Jur. 2d, Licenses and Permits § 16.

54 Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices § 454.

67B Am. Jur. 2d, Schools §§ 254, 276, 288, 301, 308, 355.

68 Am. Jur. 2d, Schools §§ 431, 432, 435, 446, 449-455, 457-459, 461, 465, 467.

70 Am. Jur. 2d, Sedition, Subversive Activities, and Treason §§ 4, 80.

70A Am. Jur. 2d, Social Security and Medicare § 2.

76 Am. Jur. 2d, Unemployment Compensation § 37.

77 Am. Jur. Trials, Representing Law Enforcement Officers in Personnel Disputes and Employment Litigation, p. 1.

91 Am. Jur. Trials, When Clergy Fail Their Flock: Litigating the Clergy Sexual Abuse Case, p. 151.

93 Am. Jur. Trials, Homeowners’ Association Defense: Free Speech, p. 293.

113 Am. Jur. Trials, Suing Your Cut-Rate Competitor: Store Brands and ‘Compare to‘ Packaging, p. 279.

114 Am. Jur. Trials, Electronic/Video Games Litigation, p. 1.

115 Am. Jur. Trials, Particular Public School District Liability Issues Arising from Student or Staff Use of Computers, Internet, or Other Electronic Media to Harass or Bully Students, p. 355.

118 Am. Jur. Trials, Litigation Concerning Religion in Workplace, p. 183.

119 Am. Jur. Trials, Litigating the Right of Publicity: Your Client’s Face Was on the News, Now It’s on T-Shirts and Video Games, p. 343.

63 Am. Jur. Proof of Facts 3d, Interference With the Right to Free Exercise of Religion, p. 195.

71 Am. Jur. Proof of Facts 3d, Proof of Circumstances Establishing Constitutional Malice in a Defamation Cause of Action, p. 321.

99 Am. Jur. Proof of Facts 3d, Proof of Facts Establishing Affirmative Defenses Against a Claim for Defamation, p. 393.

100 Am. Jur. Proof of Facts 3d, Proof of Instant Message, Blog, or Chat as Evidence, p. 89.

103 Am. Jur. Proof of Facts 3d, Invasion of Privacy By Public Disclosure of Private Facts, p. 159.

104 Am. Jur. Proof of Facts 3d, Proof of Facts Establishing a Party’s Entitlement to Punitive Damages in a Defamation Cause of Action, p. 221.

106 Am. Jur. Proof of Facts 3d, Proof of Public School District Liability for Student Peer-on-Peer Sexual Harassment or Harassment on the Basis of Gender or Sexual Orientation, p. 437.

108 Am. Jur. Proof of Facts 3d, Proof of Public School District Liability for Injuries or Damages to Student Resulting from Harassment of Student by Teacher or Other District Staff Member, p. 1.

109 Am. Jur. Proof of Facts 3d, Religious Group’s Proof of Claim of Violation in Zoning Matter and Defense by Municipality, p. 523.

CJS.

C.J.S. Constitutional Law §§ 513 to 517, 539, 542.

Lawyers’ Edition.

Constitutionality of federal and state regulation of obscene literature–federal cases. 1 L. Ed. 2d 2211; 4 L. Ed. 2d 1821.

The Supreme Court and right of free speech and press. 2 L. Ed. 2d 1706; 11 L. Ed. 2d 1116; 16 L. Ed. 2d 1053; 21 L. Ed. 2d 976.

Comment Note.–What provisions of the Federal Constitution’s Bill of Rights are applicable to the states. 18 L. Ed. 2d 1388; 23 L. Ed. 2d 985.

Provisions of Federal Constitution concerning establishment and freedom of religion. 21 L. Ed. 2d 928.

The Supreme Court and the right of free speech and press. 21 L. Ed. 2d 976.

Constitutionality of regulation of obscene motion pictures–federal cases. 22 L. Ed. 2d 949.

Constitutionality of statutes, ordinances, or administrative provisions prohibiting defiance, disrespect, mutilation, or misuse of American flag–federal cases. 22 L. Ed. 2d 972.

Constitutional aspects of libel and slander–Supreme Court cases. 28 L. Ed. 2d 885.

The Supreme Court and the First Amendment right to petition the Government for a redress of grievances. 30 L. Ed. 2d 914.

The Supreme Court and the First Amendment right of association. 33 L. Ed. 2d 865.

Validity, under Federal Constitution, of federal, state, or local antinoise laws and regulations. 36 L. Ed. 2d 1042.

Supreme Court cases involving establishment and freedom of religion clauses of Federal Constitution. 37 L. Ed. 2d 1147.

Supreme Court’s development of the “clear and present danger” rule and the related rule concerning advocacy of unlawful acts as limitations on the constitutional right of free speech and press. 38 L. Ed. 2d 835.

Supreme Court’s view as to the protection or lack of protection, under the Federal Constitution, of the utterance of “fighting words.” 39 L. Ed. 2d 925.

Supreme Court’s development, since Roth v United States, of standards and principles determining concept of obscenity in context of right of free speech and press. 41 L. Ed. 2d 1257.

Supreme Court’s views as to the federal legal aspects of the right of privacy. 43 L. Ed. 2d 871.

Supreme Court’s view as to overbreadth of legislation in connection with First Amendment rights. 45 L. Ed. 2d 725.

Supreme Court’s views as to constitutionality of state or municipal regulation of peddlers, drummers, canvassers, and the like. 48 L. Ed. 2d 917.

Supreme Court’s views as to validity of laws restricting or prohibiting sale or distribution to minors of particular types of goods or services otherwise available to adults. 52 L. Ed. 2d 892.

Progeny of New York Times v Sullivan in the Supreme Court. 61 L. Ed. 2d 975.

First Amendment guaranty of free speech and press as applied to licensing and regulation of broadcast media–Supreme Court cases. 69 L. Ed. 2d 1110.

First Amendment rights of free speech and press as applied to picketing and boycotts by labor unions and employees–Supreme Court cases. 72 L. Ed. 2d 872.

First Amendment rights of free speech and press as applied to public schools–Supreme Court cases. 73 L. Ed. 2d 1466.

Denial to incarcerated persons of contact visits as violation of federal constitutional rights. 82 L. Ed. 2d 1006.

Right of petition and assembly under Federal Constitution’s First Amendment.86 L. Ed. 2d 758.

Establishment and free exercise of religion clauses of Federal Constitution’s First Amendment as applied to employment. 86 L. Ed. 2d 797.

Free speech and press clauses of Federal Constitution’s First Amendment as affecting damages recoverable for defamation. 86 L. Ed. 2d 816.

Governmental regulation of public utility as violating utility’s First Amendment right to free speech or press. 89 L. Ed. 2d 930.

First amendment freedom of speech or press as giving news media right of access to criminal proceedings–Supreme Court cases. 92 L. Ed. 2d 797.

Supreme Court’s views as to prisoner’s right to free exercise of religion under Federal Constitution’s First Amendment.96 L. Ed. 2d 736.

Establishment and free exercise of religion clauses of Federal Constitution’s first Amendment as applied to public schools – Supreme Court Cases. 96 L. Ed. 2d 828.

Public employee’s right of free speech under Federal Constitution’s First Amendment – Supreme Court cases. 97 L. Ed. 2d 903.

Governmental regulation of nonlabor picketing as violating freedom of speech or press under Federal Constitution’s First Amendment – Supreme Court cases. 101 L. Ed. 2d 1052.

Tax legislation as violating Federal Constitution’s First Amendment – Supreme Court cases. 103 L. Ed. 2d 951.

Supreme Court’s views as to constitutionality of laws prohibiting, or of criminal convictions for, desecration, defiance, disrespect, or misuse of American flag. 105 L. Ed. 2d 809.

Establishment and free exercise of religion clauses of Federal Constitution’s First Amendment as applied to governmental regulations or activities allegedly supporting public observance of Sabbath or of religious holiday. 106 L. Ed. 2d 752.

Employees’ rights regarding use of union dues or fees for purposes with which they disagree–Supreme Court cases. 114 L. Ed. 2d 783.

Supreme Court’s views as to application or applicability of doctrine of qualified immunity in action under 42 USCS § 1983, or in Bivens action, seeking damages for alleged civil rights violations. 116 L. Ed. 2d 965.

Supreme court’s views regarding Federal Constitution’s First Amendment right of association as applied to elections and other political activities. 116 L. Ed. 2d 997.

Supreme Court’s views regarding Federal Constitution’s First Amendment guarantees of freedom of speech or press as applied to electoral process. 119 L. Ed. 2d 607.

Noerr-Pennington doctrine, exempting from federal antitrust laws joint efforts to influence governmental action–Supreme Court cases. 123 L. Ed. 2d 707.

When will private right of action for damages (‘Bivens‘ action) be implied from provision of Federal Constitution–Supreme Court cases. 127 L. Ed. 2d 715.

Antiabortion activities–Supreme Court cases. 129 L. Ed. 2d 989.

Federal Constitution’s First Amendment guarantee of freedom of speech and press as protecting private right to refuse to foster, repeat, advertise, or disseminate view, message, or statement divergent from one’s own–Supreme Court cases. 132 L. Ed. 2d 961.

Supreme Court’s views as to extent of states’ regulatory powers concerning or affecting intoxicating liquors, under Federal Constitution’s Twenty-First Amendment.134 L. Ed. 2d 1015.

Rights of, and validity of provisions concerning or affecting, homosexuals, under Federal Constitution–Supreme Court cases. 134 L. Ed. 2d 1047.

Government regulation of cable television as violating Federal Constitution’s First Amendment guarantees of freedom of speech and press–Supreme Court cases. 135 L. Ed. 2d 1187.

Indigent’s federal constitutional right to maintain judicial proceedings as to civil matters without prepayment of costs or fees–Supreme Court cases. 136 L. Ed. 2d 935.

Government regulation of or concerning advertising as violation of Federal Constitution’s First Amendment rights of free speech and press–Supreme Court cases. 138 L. Ed. 2d 1085.

Racial discrimination, in students’ admissions or education, with respect to college, university, or other higher eduaction–Supreme Court cases. 145 L. Ed. 2d 1149.

Federal-law aspects of government regulation, on grounds assertedly related to users’ health, of tobacco and tobacco products–Supreme Court cases. 146 L. Ed. 2d 1007.

Governmental restrictions on individual’s publicly appearing live in nude or seminude condition as violating freedom of speech under Federal Constitution’s First Amendment–Supreme Court cases. 146 L. Ed. 2d 1019.

Establishment and free exercise of religion clauses of Federal Constitution’s First Amendment as applied to public schools–Supreme Court cases. 147 L. Ed. 2d 1117.

Civil rights laws prohibiting nongovernmental organization’s membership restriction or its members’ right of association under Federal Constitution’s First Amendment–Supreme Court cases. 147 L. Ed. 2d 1157.

Licensing and regulation of attorneys, with respect to matters other than advertisements, as restricted by rights of free speech, expression, and association under Federal Constitution’s First Amendment–Supreme Court cases. 149 L. Ed. 2d 1093.

Government regulation of prisons and prisoners as violating rights of free speech and press under Federal Constitution’s First Amendment–Supreme Court cases. 149 L. Ed. 2d 1193.

Governmental restrictions on use of public parks as violating freedom of speech or press under Federal Constitution’s First Amendment–Supreme Court cases. 151 L. Ed. 2d 1123.

Establishment and free exercise of religion clauses of Federal Constitution’s First Amendment as applied to public aid to sectarian schools or students at such schools–Supreme Court cases. 153 L. Ed. 2d 991.

Supreme Court’s view as to protection, under Federal Constitution’s First Amendment guarantees of freedom of speech and press, of expression, such as “fighting words,” purportedly constituting or causing breach of peace, disorderly conduct, or intimidation. 155 L. Ed. 2d 1211.

Governmental regulation of fundraising or of solicitation of financial contributions as violating Federal Constitution’s First Amendment guarantees of freedom of speech and press–Supreme Court cases. 155 L. Ed. 2d 1239.

Supreme Court’s views concerning effect of Federal Constitution’s First Amendment on state or local regulation of businesses that provide “adult” products or entertainment. 159 L. Ed. 2d 901.

Governmental regulation of financing of political campaign as violating freedom of speech, press, or association under Federal Constitution’s First Amendment–Supreme Court cases. 171 L. Ed. 2d 953.

Supreme Court’s views as to extent of prosecutorial immunity from liability for damages for alleged violations of civil rights. 172 L. Ed. 2d 905.

Law Reviews.

McMillan, With Religious Speech, Funding is Fundamental: Rosenberger v. Rector and Visitors of University of Virginia, 115 S. Ct. 2510 (1995), 17 Miss C L Rev, Fall, 1996.

Gordon, Reestablishment of Religious Freedom: Developing an Alternative Model Based on State Constitutionalism Privacy. 66 Miss. L. J. 127, Fall, 1996.

Currie, Butt In: 44 Liquormart, Inc. v. Rhode Island and its Implications on the Future of Cigarette Advertising and Commercial Speech. 18 Miss. College L. R., Fall, 1997.

Loewy, Constitutional Law and Civil Rights Symposium, Part 1: Rethinking Free Exercise of Religion After Smith and Boerne: Charting a Middle Course. 68 Miss. L. J. 105, Fall, 1998.

Berryhill, Recent Decision: Constitutional Law–First Amendment–Public Broadcasters May Exclude Politic Candidates From Debates as Long as Exclusion is Reasonable and Viewpoint-Neutral. 68 Miss. L. J. 391, Fall, 1998.

Goodman, Constitutional Law – First Amendment – Federal Prohibitions on Advertising for Private Casinos are Unconstitutional if Such Advertising is Broadcast from Stations in States Where Such Gaming is Lawful, 69 Miss. L.J. 575 (Fall, 1999).

Comment: Exploring the Constitutionality of Subsidizing Political Speech with Mandatory Student Activity Fees: Board of Regents of the University of Wisconsin System v. Southworth, 69 Miss. L.J. 1221 (2000).

Recent Decisions: Constitutional Law – First Amendment – Application of Public Accommodations Law Violates First Amendment When Organization’s Expressive Activity is Significantly Burdened, 70 Miss. L.J. 441 (2000).

Recent Decision: Constitutional Law – First Amendment – Government Must Demonstrate that There Is Not a Less Restrictive Alternative Before a Content-Based Restriction of Protected Speech Can Survive Strict Scrutiny, 70 Miss. L.J. 457 (2000).

Recent Decision: Constitutional Law – Establishment Clause – A Policy Allowing Potential Religious Expression at Government-Sponsored Events Violates the Establishment Clause if the Government Entity Created the Policy with the Purpose to Promote Religious Beliefs, 70 Miss. L.J. 473 (2000).

Constitutional Law – First Amendment – Speech Discussing Otherwise Permissible Subjects Cannot Be Excluded from a Limited Public Forum on the Ground That the Subject Is Discussed from a Religious Viewpoint, 71 Miss. L.J. 305, Fall, 2001.

Recent Decision: Constitutional Law–First Amendment–School Voucher Program Held Constitutional Under the Establishment Clause, 72 Miss. L.J. 885, Winter, 2002.

Recent Decision: Constitutional Law–Hate Speech–First Amendment Permits Ban on Cross Burning When Done with the Intent to Intimidate, 73 Miss. L.J. 323, Fall, 2003.

Note: The Conundrum of Applying an “Incoherent” First Amendment Jurisprudence: Glassroth v. Moore, 24 Miss. C. L. Rev. 115, Fall, 2004.

Free Speech and the End of Dress Codes and Mandatory Uniforms in Mississippi Public Schools, 24 Miss. C. L. Rev. 27, Fall, 2004.

Note: Should Shielding Children from Internet Pornography and Protecting Free Speech be Mutually Exclusive? Ashcroft v. American Civil Liberties Union, 25 Miss. C. L. Rev. 117, Fall, 2005.

Symposium on Religion, Religious Pluralism, and the Rule of Law: Introduction, 27 Miss. C. L. Rev. 1, 2007/2008.

Symposium on Religion, Religious Pluralism, and the Rule of Law: The Underlying Causes of Divergent First Amendment Interpretations, 27 Miss. C. L. Rev. 67, 2007/2008.

JUDICIAL DECISIONS

1. Statutes–In general.

2. – Freedom of association.

3. – Freedom of speech and press.

4. – Freedom of religion, statutes.

5. Freedom of speech violation not shown.

6. Flag display and salute.

7. Schools and school districts–In general.

8. – Prayer and religious observance, schools and school districts.

9. – Freedom of speech and press, schools and school districts.

10. Freedom of religion–In general.

11. – Establishment, freedom of religion.

12. Freedom of speech and press–In general.

13. – Criminal trials, freedom of speech and press.

14. – Correctional facilities, freedom of speech and press.

15. – Advertising, freedom of speech and press.

16. – Professional regulation, freedom of speech and press.

17. – Employment and job security, freedom of speech and press.

18. – Colleges and universities, freedom of speech and press.

19. – Parades and demonstrations, freedom of speech and press.

20. – Entertainment, freedom of speech and press.

21. – Defamation, freedom of speech and press.

22. – Obscenity, freedom of speech and press.

23. Freedom of association – Generally.

24. Elections and politics.

25. Constitutional vagueness.

1. Statutes–In general.

The mere fact that the discretion granted to the Secretary of State in the Public Trust Tidelands Act could be interpreted in different lights, does not automatically render it vague; the procedure established by the tidelands legislation has a reasonable relation to the governmental purpose of establishing the boundary of public trust lands and as such is not vague. Columbia Land Dev., LLC v. Sec'y of State, 868 So. 2d 1006, 2004 Miss. LEXIS 286 (Miss. 2004).

Where activity to be regulated is capable of reaching First Amendment rights, statute or ordinance should be subjected to heightened scrutiny when attacked as overbroad. Smith v. City of Picayune, 701 So. 2d 1101, 1997 Miss. LEXIS 379 (Miss. 1997).

Statutory language clearly prescribed for punishment only a class of true threats, and not social or political advocacy. Shackelford v. Shirley, 948 F.2d 935, 1991 U.S. App. LEXIS 29016 (5th Cir. Miss. 1991).

Plaintiffs who showed that challenged statutes either impinged upon their protected rights to register to vote or burdened organizational efforts to assist prospective voters in registering had standing to sue to challenge Mississippi’s dual registration requirement and prohibition on satellite registration as violative of their rights and all persons similarly situated. Mississippi State Chapter, Operation Push v. Allain, 674 F. Supp. 1245, 1987 U.S. Dist. LEXIS 10925 (N.D. Miss. 1987).

The Mississippi Criminal Syndicalism Act (Code 1942 §§ 2066.5-01 to 2066.5-06) on its face unconstitutionally abridges the freedoms of speech, press and assembly. Ware v. Nichols, 266 F. Supp. 564, 1967 U.S. Dist. LEXIS 8407 (N.D. Miss. 1967).

2. – Freedom of association.

Statutes requiring that initiative petition circulators be qualified electors of State and prohibiting per-signature payment of circulators violated First Amendment; there was evidence that payment of primarily out-of-state circulators, who would only work on payment-per-signature basis, was most effective and economical avenue of political communication, and State failed to prove fraud or actual threat to citizens’ confidence in government from per-signature payment, or to demonstrate any reasonable justification for permitting signature gathering only by voters registered in State. Term Limits Leadership Council v. Clark, 984 F. Supp. 470, 1997 U.S. Dist. LEXIS 19485 (S.D. Miss. 1997).

A state criminal statute prohibiting, among other things, picketing in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from any courthouses or other public buildings is not so broad, vague, indefinite, and lacking in definitely ascertainable standards as to be unconstitutional on its face, is not void for overbreadth, but is a valid law dealing with conduct subject to regulation so as to vindicate important interests of society. Cameron v. Johnson, 390 U.S. 611, 88 S. Ct. 1335, 20 L. Ed. 2d 182, 1968 U.S. LEXIS 1879 (U.S. 1968).

Sections of statutes which authorize certain state officials in their own judgment or discretion to suspend the terms of laws prohibiting certain activities on grounds occupied by capitol buildings, state office buildings, and the state executive mansion in favor of other activities of their choice are invalid and unconstitutional. Coppock v. Patterson, 272 F. Supp. 16, 1967 U.S. Dist. LEXIS 7062 (S.D. Miss. 1967).

3. – Freedom of speech and press.

Defendant’s free speech rights were not violated by his warrantless arrest where the confrontation occurred not out in public but at the sheriff’s department, the officer neither initiated nor had an opportunity to walk away from defendant’s words and combative conduct, defendant became agitated and began shouting profanities when the officer told him about the protocol he would have to follow to retrieve his vehicle from the impound lot, and defendant did not stop with simply expressing his displeasure. He was combative, and he created a stalemate that rose to the level of “fighting words” that were likely to inflict injury or incite an immediate breach of the peace. Odem v. State, 881 So. 2d 940, 2004 Miss. App. LEXIS 899 (Miss. Ct. App. 2004).

Statutes requiring that initiative petition circulators be qualified electors of State and prohibiting per-signature payment of circulators violated First Amendment; there was evidence that payment of primarily out-of-state circulators, who would only work on payment-per-signature basis, was most effective and economical avenue of political communication, and State failed to prove fraud or actual threat to citizens’ confidence in government from per-signature payment, or to demonstrate any reasonable justification for permitting signature gathering only by voters registered in State. Term Limits Leadership Council v. Clark, 984 F. Supp. 470, 1997 U.S. Dist. LEXIS 19485 (S.D. Miss. 1997).

Conviction of defendant for violation of state telephone harassment statute was upheld, and did not violate First Amendment, where defendant placed telephone call to former supervisor stating that next time supervisor came by defendant’s premises he would be ‘toting an ass whippin.’ Shackelford v. Shirley, 948 F.2d 935, 1991 U.S. App. LEXIS 29016 (5th Cir. Miss. 1991).

Telephone harassment statute prohibiting making telephone call threatening to inflict injury or physical harm, with intent to terrify, intimidate, or harass, is not unconstitutionally overbroad on its face. Shackelford v. Shirley, 948 F.2d 935, 1991 U.S. App. LEXIS 29016 (5th Cir. Miss. 1991).

Because trial judge’s jury instructions tracked language of statute, jury’s verdict represented finding that defendant, on trial for violating statute by placing telephone call to former supervisor stating that next time supervisor came by defendant’s premises he would be “toting an ass whippin,” engaged in unprotected, threatening speech. Shackelford v. Shirley, 948 F.2d 935, 1991 U.S. App. LEXIS 29016 (5th Cir. Miss. 1991).

Permanent injunction has been issued to prevent enforcement of §39-5-63 because this act and others relating to sealing of files of state sovereignty commission, which had a clandestine purpose of perpetuating racial inequality, unconstitutionally infringe on black citizens’ rights to free speech and association, personal privacy, and lawful search and seizure. ACLU v. Mabus, 719 F. Supp. 1345, 1989 U.S. Dist. LEXIS 9679 (S.D. Miss. 1989), vacated, 911 F.2d 1066, 1990 U.S. App. LEXIS 16085 (5th Cir. Miss. 1990).

The breach of the peace statute, Section 97-35-13, is not unconstitutionally vague. Although the statute may have been constructed with broad language and could arguably be construed in a manner which would reach constitutionally protected speech or conduct, a statute may not be construed “so as to infringe upon the state or federally protected constitutional rights” of any individual. Jones v. Meridian, 552 So. 2d 820, 1989 Miss. LEXIS 422 (Miss. 1989).

Ideas and opinions, although incorrect or faulty in their premise, are protected by the United States Constitution and cannot support a defamation action. Meridian Star, Inc. v. Williams, 549 So. 2d 1332, 1989 Miss. LEXIS 446 (Miss. 1989), overruled, Roussel v. Robbins, 688 So. 2d 714, 1996 Miss. LEXIS 533 (Miss. 1996).

Statute’s definition of “obscene, indecent, or immoral” was overbroad and violated the First Amendment to the United States Constitution according to the requirement set by the United States Supreme Court, and it could not be made constitutional by construing it and applying it or by reading into it the specificity and limitations required by the Supreme Court. ABC Interstate Theatres, Inc. v. State, 325 So. 2d 123, 1976 Miss. LEXIS 1975 (Miss. 1976).

A statute which prohibits signs, placards, advertisements, harangues, orations, loud language, parades, processions, assemblages, and partisan flags, banners, or devices on the grounds occupied by the state capitol buildings, office buildings, and executive mansion infringe no constitutional limitation. Coppock v. Patterson, 272 F. Supp. 16, 1967 U.S. Dist. LEXIS 7062 (S.D. Miss. 1967).

The Mississippi Criminal Syndicalism Act (Code 1942 §§ 2066.5-01 to 2066.5-06) on its face unconstitutionally abridges the freedoms of speech, press and assembly. Ware v. Nichols, 266 F. Supp. 564, 1967 U.S. Dist. LEXIS 8407 (N.D. Miss. 1967).

4. – Freedom of religion, statutes.

The Child Residential Home Notification Act (§§43-16-1 et seq.) did not interfere with the constitutional religious freedom rights of a church congregation which operated a children’s home. Fountain v. State, 608 So. 2d 705, 1992 Miss. LEXIS 676 (Miss. 1992).

A state statute making it a misdemeanor to teach in state supported public schools the scientific theory or doctrine that man ascended or descended from a lower form of animal violates the First Amendment to the United States Constitution and is thus unconstitutional. Smith v. State, 242 So. 2d 692, 1970 Miss. LEXIS 1390 (Miss. 1970).

5. Freedom of speech violation not shown.

Judge’s statements were not protected by the First Amendment as the judge’s comment concerning African-Americans in Hinds County was not a matter of legitimate public concern; the conference where the judge made her remarks was not a forum for expressing personal concerns about the alleged lack of educational background or demeanor of fellow judges or the alleged lack of intelligence of supervisors, nor was it the proper place for an alleged personal attack on a team participant, or an alleged attack on residents of Hinds County. Miss. Comm'n on Judicial Performance v. Boland, 975 So. 2d 882, 2008 Miss. LEXIS 120 (Miss. 2008).

Termination of the employee’s employment was proper where his U.S. Const. amend. I rights were not violated because his speech was not a cause or even a contributing factor in the employer’s decision to proceed with disciplinary action against him. Although his speech conduct (telephone calls, shouting, cursing, verbal threats) was clearly a large part of the reason for the disciplinary proceeding, that speech was in no way involved in or affected by the January 18, 2001 memo, which was what the circuit court found to be in violation of freedom of speech and freedom of association, evidencing conduct that the court could not condone. Miss. Transp. Comm'n v. Anson, 879 So. 2d 958, 2004 Miss. LEXIS 621 (Miss. 2004).

6. Flag display and salute.

Public reprimand against a judge was proper because he misused the powers of contempt and violated Miss. Code Jud. Conduct Canons 1, 3(B)(2), and 3(B)(8) when he held a defendant in criminal contempt for failing to recite the pledge of allegiance in open court. He violated Miss. Code Jud. Conduct Canons 2(A) and 3(B)(4) by incarcerating the defendant for expressing his rights under U.S. Const. amend. I. Miss. Comm'n on Judicial Performance v. Littlejohn, 62 So.3d 968, 2011 Miss. LEXIS 278 (Miss. 2011).

Mississippi statute (Laws, 1942, ch 178; Code 1942 § 2402) making it a criminal offense to indoctrinate any creed, theory or any set of principles which reasonably tend to create an attitude of stubborn refusal to salute, honor or respect the flag of the United States or of the state, denies the liberty guaranteed by the Fourteenth Amendment. Taylor v. Mississippi, 319 U.S. 583, 63 S. Ct. 1200, 87 L. Ed. 1600 (1943), reversing 194 Miss. 1, 11 So. 2d 663 (1943).

7. Schools and school districts–In general.

Student could not complain of unconstitutional vagueness or overbreadth of school district alcohol policy as it applied to activities of third parties, but only as it applied to his own activities. Board of Trustees v. T.H. by & Through T.H. (In the Interest of T.H.), 681 So. 2d 110, 1996 Miss. LEXIS 492 (Miss. 1996).

School district policy is not facially unconstitutionally overbroad if: there are substantial number of situations where policy may be validly applied; policy covers range of easily identifiable conduct which may be constitutionally proscribed; and policy is susceptible to narrowing interpretation. Board of Trustees v. T.H. by & Through T.H. (In the Interest of T.H.), 681 So. 2d 110, 1996 Miss. LEXIS 492 (Miss. 1996).

School district’s alcohol policy was not facially overbroad as applied to conduct of student who admitted consuming alcohol before entering school property to attend school athletic function; policy validly applied to student’s conduct, district was constitutionally permitted to proscribe consumption of alcohol within limits, and policy was susceptible to narrowing interpretation. Board of Trustees v. T.H. by & Through T.H. (In the Interest of T.H.), 681 So. 2d 110, 1996 Miss. LEXIS 492 (Miss. 1996).

Public schools have authority to promulgate and enforce a reasonable dress code for faculty, staff and students, provided only that it does not infringe rights otherwise protected, and even then the schools may enforce such a code when undergirded by some compelling governmental interest reasonably related to their educational mission, so long as the least restrictive means reasonably available are employed. Mississippi Employment Sec. Com. v. McGlothin, 556 So. 2d 324, 1990 Miss. LEXIS 5 (Miss.), cert. denied, 498 U.S. 879, 111 S. Ct. 211, 112 L. Ed. 2d 171, 1990 U.S. LEXIS 4937 (U.S. 1990).

8. – Prayer and religious observance, schools and school districts.

Miss Laws 1994, c. 609 § 1(2) (Section37-13-4.1), permitting public school students to initiate nonsectarian nonproselytizing prayer at various compulsory and noncompulsory school events, was unconstitutional under test of Lemon v. Kurtzman, 403 US 602, where (1) its stated purpose “to accommodate the free exercise of religious rights of its student citizens in the public schools” was to advance prayer in public schools, (2) its effect was to advance religion over irreligion because it gave preferential exceptional benefit to religion that it did not extend to anything else, and (3) it excessively entangled government and religion in that government officials were allowed to lead students in prayer and punish students who left class or assemblies in order to avoid listening to prayer. Ingebretsen v. Jackson Pub. Sch. Dist., 864 F. Supp. 1473 (S.D. Miss. 1994), aff’d, 88 F.3d 274 (5th Cir. 1996), reh’g and reh’g en banc denied (5th Cir. 1996), cert. denied, 519 U.S. 965, 117 S. Ct. 388, 136 L. Ed. 2d 304 (1996).

Miss Laws 1994, c. 609 § 1(2) (Section37-13-4.1), permitting public school students to initiate nonsectarian nonproselytizing prayer at various compulsory and noncompulsory school events, was unconstitutional under “coercion” tests where it would allow prayers to be given by any person, including teachers, school administrators, and clergy at school functions where attendance was compulsory, and students would be captive audience that could not leave without being punished by state or school board for truancy or excessive absences. Ingebretsen v. Jackson Pub. Sch. Dist., 864 F. Supp. 1473 (S.D. Miss. 1994), aff’d, 88 F.3d 274 (5th Cir. 1996), reh’g and reh’g en banc denied (5th Cir. 1996), cert. denied, 519 U.S. 965, 117 S. Ct. 388, 136 L. Ed. 2d 304 (1996).

Miss Laws 1994, c. 609 § 1(2) (Section37-13-4.1), permitting public school students to initiate nonsectarian nonproselytizing prayer at various compulsory and noncompulsory school events, was unconstitutional endorsement of religion where it allowed school officials in their capacity as representatives of state to lead students in prayer, and it set aside special time for prayer that it did not set aside for anything else. Ingebretsen v. Jackson Pub. Sch. Dist., 864 F. Supp. 1473 (S.D. Miss. 1994), aff’d, 88 F.3d 274 (5th Cir. 1996), reh’g and reh’g en banc denied (5th Cir. 1996), cert. denied, 519 U.S. 965, 117 S. Ct. 388, 136 L. Ed. 2d 304 (1996).

A high school athletic association’s anti-recruiting rule, which required that a participant in interscholastic activities attend a school in the school district of which his or her parents or guardian were bona fide residents, did not violate the constitutional right to free exercise of religion since the rule did not prevent a parent or child from actively practicing their chosen religion and did not regulate the conduct of student athletes to the point of interfering with any religious practice; any interference with religious practices was incidental to the stated purpose of the rule–to deter overzealous athletic recruiting practices–and the rule was reasonably related to that purpose. Mississippi High Sch. Activities Ass'n v. Coleman, 631 So. 2d 768, 1994 Miss. LEXIS 32 (Miss. 1994).

A public school teacher’s wearing of a head-wrap as an expression of her religious and cultural heritage as a member of the African Hebrew Israelites in violation of the school’s dress code was constitutionally protected religious and cultural expression, such that the Mississippi Employment Security Commission had no authority to deny her claim for unemployment compensation benefits after she was discharged for insubordination when she refused to discontinue wearing the head-wrap, even though there is no specific tenant of the African Hebrew Israelites mandating that women wear headdress, the teacher was not a regular participant in the organized activities of a particular church, synagogue or other religious body, she might have been “selective in wearing the traditional head-wrap” in that at times she did not wear it, and even though her conduct may have been misconduct had it not been constitutionally protected expression. Mississippi Employment Sec. Com. v. McGlothin, 556 So. 2d 324, 1990 Miss. LEXIS 5 (Miss.), cert. denied, 498 U.S. 879, 111 S. Ct. 211, 112 L. Ed. 2d 171, 1990 U.S. LEXIS 4937 (U.S. 1990).

State statute authorizing moment of silence in public schools for “meditation or voluntary prayer”, for the sole express purpose of returning voluntary prayer to schools, violates establishment clause of First Amendment. Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct. 2479, 86 L. Ed. 2d 29, 1985 U.S. LEXIS 91 (U.S. 1985).

9. – Freedom of speech and press, schools and school districts.

School administrator’s testimony concerning operation of public schools constitutes matter of “public concern” and is protected by First Amendment, because testimony was generally factual, concerning reading program in school district; where this testimony truthfully related facts and impressions of administrator concerning decision-making process of government officials responsible for personnel decisions of local school system, District Court was correct in concluding that administrator had been discharged for exercising rights of free expression protected by First Amendment. Reeves v. Claiborne County Bd. of Education, 828 F.2d 1096, 1987 U.S. App. LEXIS 13093 (5th Cir. Miss. 1987).

A public school teacher’s criticism of certain policies and practices of the school district in which she is employed, which criticism is communicated privately to a school principal, is subject to the protection of the First Amendment, since (1) such private expression of views is not beyond constitutional protection, and (2) the “captive audience” theory that there is no constitutional right to “press even ‘good’ ideas on an unwilling recipient” is inapplicable in view of the principal’s having opened his office door to the teacher. Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 99 S. Ct. 693, 58 L. Ed. 2d 619, 1979 U.S. LEXIS 209 (U.S. 1979).

10. Freedom of religion–In general.

District court correctly granted an injunction barring enforcement of Miss. Const. art. XIV, § 263A and Miss. Code Ann. §93-1-1(2), because same-sex couples may exercise the fundamental right to marry and there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State. The First Amendment ensures that religious organizations may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. Campaign Southern Equal. v. Bryant, 791 F.3d 625, 2015 U.S. App. LEXIS 11581 (5th Cir. Miss. 2015).

Because a church pastor’s request for a temporary restraining order (TRO) presented a purely ecclesiastical controversy, the chancery court was without jurisdiction to hear it. As such, the chancellor erred when he issued the TRO and when he vacated the church’s vote to remove the pastor and ordered a new one. Greater Fairview Missionary Baptist Church v. Hollins, 160 So.3d 223, 2015 Miss. LEXIS 150 (Miss. 2015).

First Amendment forbids civil courts from resolving church property disputes by inquiring into and resolving disputed issues of religious doctrine and practice; however, subject matter jurisdiction existed over former parishioners’ claim that the church breached a fiduciary duty by improperly diverting funds designated for reconstruction of a church after Hurricane Katrina. Schmidt v. Catholic Diocese, 18 So.3d 814, 2009 Miss. LEXIS 427 (Miss. 2009).

First Amendment protections do not turn on whether the claimant’s conduct or form of expression has been mandated by doctrine or teaching of a particular religious organization or denomination, nor is it necessarily of concern that members of the particular faith may disagree with the claimant’s interpretation of church dogma. All that may be required is that the belief have a religious grounding and that the individual be expressing “sincerely held religious beliefs.” Mississippi Employment Sec. Com. v. McGlothin, 556 So. 2d 324, 1990 Miss. LEXIS 5 (Miss.), cert. denied, 498 U.S. 879, 111 S. Ct. 211, 112 L. Ed. 2d 171, 1990 U.S. LEXIS 4937 (U.S. 1990).

If disbarred attorney’s failure to participate in organized religion had been determinative of the denial of his petition for reinstatement, then his constitutional rights would have been violated. Williams v. Mississippi State Bar Asso., 492 So. 2d 578, 1986 Miss. LEXIS 2538 (Miss. 1986).

Jehovah’s Witness has right, based upon freedom of religion, to undergo surgery but refused to be given blood transfusion and such right outweighs interest of state in insuring that wounded Witness receive transfusion in order to insure that Witness is alive to testify in subsequent criminal trial. In re Brown, 478 So. 2d 1033, 1985 Miss. LEXIS 2285 (Miss. 1985).

Municipality’s inclusion of nativity scene in annual Christmas display is constitutional. Lynch v. Donnelly, 465 U.S. 668, 104 S. Ct. 1355, 79 L. Ed. 2d 604, 1984 U.S. LEXIS 37 (U.S. 1984).

State legislature’s practice of opening each legislative day with prayer by chaplain paid by state is not violative of establishment clause of First Amendment. Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330, 77 L. Ed. 2d 1019, 1983 U.S. LEXIS 107 (U.S. 1983).

11. – Establishment, freedom of religion.

First Amendment did not shield a church administration from civil claims of sexual abuse by priests because there was nothing religious about such reprehensible conduct, and plaintiffs’ claim of negligent hiring, retention and supervision of a priest was simply a negligence claim. Roman Catholic Diocese v. Morrison, 905 So. 2d 1213, 2005 Miss. LEXIS 295 (Miss. 2005).

The Mississippi Supreme Court does not recognize a privilege under the First Amendment to refuse to produce religiously oriented documents. Roman Catholic Diocese v. Morrison, 905 So. 2d 1213, 2005 Miss. LEXIS 295 (Miss. 2005).

A Texas school district’s policy permitting student-led, student-initiated prayer at football games violated the establishment clause of the First Amendment; that the prayer was not “private speech” was established by factors beyond the policy’s text, including the official setting in which the invocation was delivered, the policy’s sham secular purposes, and its history, which indicated that the school district intended to preserve its long-sanctioned practice of prayer before football games. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 120 S. Ct. 2266, 147 L. Ed. 2d 295, 2000 U.S. LEXIS 4154 (U.S. 2000).

A court order in a divorce proceeding which required both parents to assume responsibility for attendance of their children in church each Sunday while in their respective custody did not violate the First Amendment establishment clause as the chancellor properly chose a reasonable and accessible support network to import stability into the lives of the children whose environment held the potential for producing a tumultuous existence; however, the order was modified to provide that, “both the mother and father should be vitally interested in seeing that their children get regular and systematic spiritual training. Whether it be by attending Sunday School each Sunday or Church or both is for the parents alone to decide.” McLemore v. McLemore, 762 So. 2d 316, 2000 Miss. LEXIS 166 (Miss. 2000).

Ohio’s denial of the Ku Klux Klan’s application to display an unattended cross on the statehouse square was not justified on the ground that issuance of the permit would violate the First Amendment’s establishment of religion clause since a statehouse square has the status of a public forum; under the circumstances, the state’s right to limit expressive activity protected under the First Amendment is sharply circumscribed. Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 115 S. Ct. 2440, 132 L. Ed. 2d 650, 1995 U.S. LEXIS 4465 (U.S. 1995).

A trial judge’s remarks pertaining to religion were not sufficient to constitute a violation of the First Amendment’s Establishment Clause where the judge told a venireperson during voir dire that the instructions on the law which would be given to the jury would not “conflict in any way with [H]is law at all,” and he requested a moment of silence in honor of the troops serving in the Persian Gulf prior to the beginning of proceedings one morning. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

A local law authorizing a city to issue revenue bonds for the purpose of acquiring hospital facilities to be leased to a Methodist hospital did not violate the First Amendment where there was nothing in the Act or the resolution of the city’s governing body that could be construed as being in aid of, or directed toward, the establishment of religion; nor was there a violation of Mississippi Constitution, where the entire cost of the project was to be paid by the lessee and where the hospital facilities, which would be available to the public, did not involve a sectarian purpose or use. In re Validation of $15,000,000 Hospital Revenue Bonds etc., 361 So. 2d 44, 1978 Miss. LEXIS 2343 (Miss. 1978).

12. Freedom of speech and press–In general.

Attorney was suspended, partially due to prior similar conduct, for violating Miss. R. Prof. Conduct 3.5, 8.4, 8.2 where the evidence showed that the attorney made disparaging remarks to a judge relating to “paying for justice” and later told a newspaper reporter that the judge was a barbarian; the statements were not protected by the First Amendment because a reasonable person would not have acted in the same manner. Miss. Bar v. Lumumba, 912 So. 2d 871, 2005 Miss. LEXIS 175 (Miss.), cert. denied, 546 U.S. 825, 126 S. Ct. 363, 163 L. Ed. 2d 70, 2005 U.S. LEXIS 6085 (U.S. 2005).

Where defendant was convicted of simple assault, trespassing, and disturbing the peace in connection with an altercation with the victim, conditions of probation that restricted defendant from communicating with or about the victim, witnesses, and their families permissibly restricted defendant’s right of free speech. Griffith v. City of Bay St. Louis, 797 So. 2d 1037, 2001 Miss. App. LEXIS 302 (Miss. Ct. App. 2001).

Affidavit charging defendant with disturbing the peace sufficiently alleged criminal conduct, as the names defendant called the victim qualified as fighting words and were not protected speech. Griffith v. City of Bay St. Louis, 797 So. 2d 1037, 2001 Miss. App. LEXIS 302 (Miss. Ct. App. 2001).

A requirement that circulators of petitions for ballot initiatives must be residents imposed by way of an amendment to subsection (12) of this section is constitutional because it is narrowly tailored to the aim of preventing campaign fraud; however, a provision making such amendment retroactive to all initiative measures that had not been placed on the ballot at the time of the ratification of the proposed amendment was unconstitutional because it was aimed at one specific initiative and, therefore, amounted to content-based discrimination against a particular political viewpoint. Kean v. Clark, 56 F. Supp. 2d 719, 1999 U.S. Dist. LEXIS 10888 (S.D. Miss. 1999).

Initiative petition circulation constitutes core political speech, for purposes of First Amendment analysis, as it necessarily involves both expression of desire for political change and discussion of merits of proposed change. Term Limits Leadership Council v. Clark, 984 F. Supp. 470, 1997 U.S. Dist. LEXIS 19485 (S.D. Miss. 1997).

Mississippi statute which, as construed by the state courts, makes it a criminal offense to communicate to others views and opinions respecting governmental policies, and prophesies concerning the state of this and other nations, irrespective of whether the communication was with an evil or sinister purpose or advocated or incited subversive action against the nation or state, or threatened any clear and present danger to American institutions or government, denies the liberty guaranteed by the Fourteenth Amendment. Taylor v. Mississippi, 319 U.S. 583, 63 S. Ct. 1200, 87 L. Ed. 1600 (1943), reversing 194 Miss. 1, 11 So. 2d 663 (1943).

13. – Criminal trials, freedom of speech and press.

Even though First Amendment right to openness of courtroom and court files was qualified, public and press were entitled to prior notice of any attempt by court or party to close courtroom or seal court file in prosecution for conspiracy to commit murder. United States v. Nix, 976 F. Supp. 41 (1997).

Party seeking closure of courtroom or court file could overcome First Amendment presumption of openness to press and public of court file and defendants’ motions to dismiss indictment and to sever in prosecution for conspiracy, but only if party seeking closure would show, first, that there was substantial probability that defendants’ right to fair trial would be prejudiced by publicity that closure would prevent and, second, that reasonable alternatives to closure could not adequately protect defendants’ fair trial rights. United States v. Nix, 976 F. Supp. 41 (1997).

First Amendment right of public and press to openness of courtroom and court files in criminal prosecution is qualified rather than absolute. United States v. Nix, 976 F. Supp. 41 (1997).

For purposes of determining whether to unseal defendants’ previously-sealed motions to dismiss indictment and to sever and attached exhibits in prosecution for conspiracy to commit murder, in light of qualified First Amendment right of public and press to openness of courtroom and court files, defendants’ rights to fair trial would be impaired if motions and exhibits were unsealed prior to trial; unsealing of motion to dismiss indictment and motion’s exhibits, which contained names and addresses of potential prosecution witnesses, would compromise witnesses’ safety and well-being, partial redaction would not prevent ascertainment of names and addresses, allegations in motion to sever could prejudice jury and might constitute inadmissible evidence, and voir dire to determine possible juror bias would not be workable solution. United States v. Nix, 976 F. Supp. 41 (1997).

After issuing initial orders sealing certain defendants’ motions to dismiss indictment and to sever and their attached exhibits in prosecution for conspiracy to commit murder without giving prior notice to public and press, district court would not order any further closure of courtroom or sealing of court files unless supported by specific on-the-record findings after notice to press and public, in light of qualified First Amendment right of press and public to openness of courtroom and court files. United States v. Nix, 976 F. Supp. 41 (1997).

Four-step process applies in court’s determination of whether to close criminal court proceeding or to seal court file despite qualified First Amendment right of public and press to openness of courtroom and court files: party seeking to close proceeding or seal file must advance overriding interest that is likely to be prejudiced; closure must be no broader than necessary to protect interest of accused’s right to fair trial; court must consider reasonable alternatives to closing proceeding; and court must make findings adequate to support any closure or sealing. United States v. Nix, 976 F. Supp. 41 (1997).

District court would allow newspaper publisher access to transcript of any oral argument on murder conspiracy defendants’ motions to dismiss indictment and to sever, which might take place prior to trial, at time motions were unsealed, in light of qualified First Amendment right of public and press to openness of courtroom and court files. United States v. Nix, 976 F. Supp. 41 (1997).

An accused’s right to a fair trial and the press and public’s right of access to criminal proceedings must be balanced when determining whether access to legal proceedings should be restricted. The press and public are entitled to notice and a hearing before a closure order is entered, and any submission in a trial court for closure, either by a party Or by the court’s own motion, and be it a letter, written motion, or oral motion, either in chambers or open court, must be docketed, as notice to the press and public, in the court clerk’s office for at least 24 hours before any hearing on such submission, with the usual notice to all parties. The requirement should not be taken to mean that a greater notice period may not be afforded where feasible. Preferably, the submission should be a written motion if time and circumstances allow. A hearing must be held in which the press is allowed to intervene on behalf of the public and present argument, if any, against closure. The movant must be required to advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceedings, and it must make findings adequate to support the closure. In considering the less restrictive alternatives to closure, the court must articulate the alternatives considered and why they were rejected. The court must then make written findings of fact and conclusions of law specific enough that a reviewing court can determine whether the closure order was properly entered. A transcript of the closure hearing should be made public and if a petition for extraordinary relief concerning a closure order is filed in the Supreme Court, it should be accompanied by the transcript, the court’s findings of fact and conclusions of law, and the evidence adduced at the hearing upon which the judge based the findings and conclusions. These requirements cannot be avoided by an agreement between the defendant and the State that proceedings and files should be closed. Gannett River States Pub. Co. v. Hand, 571 So. 2d 941, 1990 Miss. LEXIS 710 (Miss. 1990).

Circuit Court’s closure order in capital murder case was reasonable regulation of time, place, and manner of newspaper’s enjoyment of its First Amendment right; desire of press to inform public about important criminal proceedings can result in publication of matter that can deprive defendant of his right to fair trial; access of press to trial and pretrial processes may be qualified, and record amply supported Circuit Court’s finding that unrestricted access to trial process would result in substantial likelihood of defendant being denied fair trial; additionally, newspaper was not being denied access to pre-trial proceeding in perpetuity, because closure order expired once jury was sequestered and trial began; once that point was reached, newspaper would be granted access to complete transcript of all closed, pre-trial proceedings. Mississippi Publishers Corp. v. Coleman, 515 So. 2d 1163, 1987 Miss. LEXIS 2900 (Miss. 1987).

Closure order in criminal trial did not violate newspapers’ right of access to public records because that right is not of constitutional dimensions, instead being derived from common law and applicable statutes. Mississippi Publishers Corp. v. Coleman, 515 So. 2d 1163, 1987 Miss. LEXIS 2900 (Miss. 1987).

By instructing the jury that if the defendant was arrested for public protest against racial segregation he could not be found guilty, the instruction constituted recognition that Code 1942 § 2089.5 could not be applied to restrict defendant’s constitutional right so to protest, and that it could not be used to infringe upon the constitutional right of any person to speak freely within the framework of the law. McLaurin v. Greenville, 187 So. 2d 854, 1966 Miss. LEXIS 1361 (Miss. 1966), cert. denied, 385 U.S. 1011, 87 S. Ct. 704, 17 L. Ed. 2d 548, 1967 U.S. LEXIS 2662 (U.S. 1967).

14. – Correctional facilities, freedom of speech and press.

No First Amendment claim arose where the inmate failed to assert facts supporting a showing of arbitrariness in classification; therefore, no issue of any merit could arise. Hurns v. Miss. Dep't of Corr., 878 So. 2d 223, 2004 Miss. App. LEXIS 162 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 918 (Miss. 2004).

The opening and inspection, without reading, of in-coming inmate mail of a non-privileged character, in the absence of the inmate, was not violative of first amendment rights, and was necessary to the state’s substantial interests of security, discipline, and good order. Gates v. Collier, 390 F. Supp. 482, 1975 U.S. Dist. LEXIS 14056 (N.D. Miss. 1975), aff'd, 525 F.2d 965, 1976 U.S. App. LEXIS 13465 (5th Cir. 1976).

The district court’s findings that the censorship of all incoming and outgoing mail at the Mississippi State Penitentiary was unconstitutional, and the relief therein granted, were affirmed. Gates v. Collier, 501 F.2d 1291, 1974 U.S. App. LEXIS 6790 (5th Cir. Miss. 1974).

15. – Advertising, freedom of speech and press.

Chiropractor did not show statutes requiring the chiropractor to use only certain licensure designations in advertising did not violate the First Amendment because the evidence demonstrated that the chiropractor’s advertisements were actually misleading. Barlow v. Miss. State Bd. of Chiropractic Examiners, 233 So.3d 223, 2017 Miss. LEXIS 209 (Miss. 2017).

City sign regulations which barred the placement of an exterior sign on a “single office building” were content neutral and did not violate the First Amendment. American Federated Gen. Agency, Inc. v. City of Ridgeland, 72 F. Supp. 2d 695, 1999 U.S. Dist. LEXIS 17760 (S.D. Miss. 1999).

The free speech guarantee of the First Amendment was not violated by rules of the Florida state bar association, which prohibited attorneys from targeting direct-mail solicitations of business to accident and disaster victims (or to relatives of such victims) during a 30-day period after the accident or disaster, where (1) Florida had a substantial interest in protecting the privacy and tranquility of potential clients from commercial intrusion on their personal grief in times of trauma, and in preventing outrage and irritation with the state-licensed legal profession, (2) the rules targeted concrete, nonspeculative harm, and (3) the restriction was reasonably well-tailored to its stated objective. Florida Bar v. Went For It, Inc., 515 U.S. 618, 115 S. Ct. 2371, 132 L. Ed. 2d 541, 1995 U.S. LEXIS 4250 (U.S. 1995).

Disciplining attorney for soliciting business through advertisements containing nondeceptive illustrations and legal advice violates attorney’s First Amendment rights. Zauderer v. Office of Disciplinary Counsel of Supreme Court, 471 U.S. 626, 105 S. Ct. 2265, 85 L. Ed. 2d 652, 1985 U.S. LEXIS 19 (U.S. 1985).

Commercial speech that lies within the First Amendment’s scope may be subjected to greater governmental regulation than other forms of speech such as political expression. Accordingly, liquor advertising in Mississippi was commercial speech protected by the First Amendment, where there was no claim that the liquor advertisements would propose an unlawful sale or purchase of liquor, despite the assertion that liquor must be “entirely lawful” everywhere in Mississippi, a local option state, before First Amendment protection attaches to its advertising. Furthermore, any potential to mislead that liquor advertising may possess did not warrant wholesale exclusion of liquor advertising from First Amendment protection. Lamar Outdoor Advertising, Inc. v. Mississippi State Tax Com., 701 F.2d 314, 1983 U.S. App. LEXIS 29732 (5th Cir. Miss. 1983).

Mississippi’s intrastate liquor advertising ban, Miss Code §97-31-1 et seq., [repealed] violated Mississippi Media Businesses’ First Amendment guaranty of freedom of speech, where the law did little to directly advance the government’s interest of promoting health and safety for Mississippi residents, in light of uncontradicted evidence that Mississippi residents were literally inundated with liquor advertisements from sources originating outside the state. Lamar Outdoor Advertising, Inc. v. Mississippi State Tax Com., 701 F.2d 314, 1983 U.S. App. LEXIS 29732 (5th Cir. Miss. 1983).

16. – Professional regulation, freedom of speech and press.

Judge’s remarks violated Miss. Code Jud. Conduct Canons 1, 2(A) & (B), 3(B)(5), constituting willful misconduct in the judicial office which brought the judicial office into disrepute, thus causing the judge’s conduct to be actionable pursuant to Miss. Const. Art. 6, § 177A; the judge’s comments were disparaging results and not matters of legitimate public concern and went beyond the realm of protected campaign speech. Miss. Comm'n on Judicial Performance v. Osborne, 2009 Miss. LEXIS 9 (Miss. Feb. 5, 2009), op. withdrawn, sub. op., 11 So.3d 107, 2009 Miss. LEXIS 278 (Miss. 2009).

Code 1972 §25-31-1, which requires district attorneys to be practicing lawyers admitted to practice in Mississippi for at least two years prior to taking office, does not violate the Voting Rights Act of 1965, does not deny the plaintiff equal protection of the law, and does not infringe upon his first amendment rights. Waide v. Waller, 402 F. Supp. 922, 1975 U.S. Dist. LEXIS 15781 (N.D. Miss. 1975).

17. – Employment and job security, freedom of speech and press.

Balancing test to determine whether the government’s interests as an employer outweighed an employee’s right as a citizen to speak out favored a state employee who was terminated after he brought abusive practices at a state hospital to the attention of his manager’s supervisor; no serious disruption resulted from the employee’s failure to follow the chain of command. E. Miss. State Hosp. v. Callens, 892 So. 2d 800, 2004 Miss. LEXIS 361 (Miss. 2004).

City sanitation workers were not disciplined in violation of the First Amendment where (1) after a meeting at which drivers and crew members were rotated among different trucks and routes, the plaintiffs complained to their supervisor that they did not want to switch trucks, (2) the supervisor told the plaintiffs that they would be disciplined if they were not out of the facility to work on time, (3) the plaintiffs did not begin to work on time, and (4) the supervisor told them to clock out and return the next day, assigned other crews to their routes, and disciplined them; the plaintiffs were not disciplined for requesting an audience with higher ranking public officials as they were not denied access to their elected officials, but were simply told to go to work and to attend to their grievances after their job duties for the day were completed, and as their complaints did not touch on matters of public concern. Tolliver v. City of Starkville, 2000 U.S. Dist. LEXIS 10816 (N.D. Miss. July 25, 2000).

Evidence did not support the contention that a civil service employee was terminated in violation of her First Amendment right of freedom of speech and freedom to petition her government; although the employee noted that, in a television interview, she expressed her opposition as a private citizen and property owner to the proposed annexation of certain areas by a city, the record did not reflect that her termination was the result of the televised interview. Walters v. Department of Economic & Community Dev., 768 So. 2d 893, 2000 Miss. LEXIS 199 (Miss. 2000).

Police department employees’ complaints in connection with their working conditions did not rise to level of public concern, thus were not protected by First Amendment such as to support their claim for wrongful discharge, by city, on basis of their speech; city’s motion for summary judgment was granted. Evans v. Indianola, 778 F. Supp. 333, 1991 U.S. Dist. LEXIS 17739 (N.D. Miss. 1991), aff'd, 981 F.2d 1255, 1992 U.S. App. LEXIS 34054 (5th Cir. Miss. 1992).

Employee speech is entitled to judicial protection only if it pertains to matters of public concern, and this protection does not extend to comments of personal interest. Even employee speech on matters of public interest must be balanced against the government’s interest in promoting efficiency, integrity and proper discipline in the discharge of public service. Thus, a police chief’s request that an officer maintain a “low profile” did not wrongfully suppress the officer’s constitutional right to free speech since the request was “well within the legitimate and necessary means inherent to the efficient operation of a police department which is deeply involved in combating narcotics activity in the community.” Bulloch v. Pascagoula, 574 So. 2d 637, 1990 Miss. LEXIS 798 (Miss. 1990).

Equitable remedy of backpay is required in context of adverse personnel actions which occur as retaliation for exercise of First Amendment freedoms; such backpay award is not rendered inappropriate by administrator’s voluntarily accepting lower salary by signing new contract, because administrator was under legal duty to minimize or mitigate damages. Reeves v. Claiborne County Bd. of Education, 828 F.2d 1096, 1987 U.S. App. LEXIS 13093 (5th Cir. Miss. 1987).

Reinstatement is integral part of remedy for constitutionally impermissible employment action and although not absolute and automatic, once plaintiff establishes discharge resulted from constitutionally impermissible motives, he is presumed to be entitled to reinstatement; neither hiring of successor during course of litigation nor finding that recommendation to transfer administrator was only partly motivated by constitutionally impermissible considerations is justification for denying reinstatement. Reeves v. Claiborne County Bd. of Education, 828 F.2d 1096, 1987 U.S. App. LEXIS 13093 (5th Cir. Miss. 1987).

Former university security coordinator was not terminated in violation of his First Amendment right to free speech when he publicly criticized administration’s decision to rate campus security as security force rather than police force, or because of his living arrangement with female faculty member, because reason for termination was his repeated refusals to comply with orders and recommendations of immediate supervisor. Robinson v. Boyer, 825 F.2d 64, 1987 U.S. App. LEXIS 11225 (5th Cir. Miss. 1987).

Where the decision not to reemploy an elementary school teacher was made, not because of her activities in speaking out against the school board and participating in teacher’s organizations, but, rather, because of her disregard of school policy in taking leave without permission, such reasons supported the proposition that the protected activities under the First Amendment were not a “substantial factor” in the non-reemployment decision. Board of Trustees v. Gates, 461 So. 2d 730, 1984 Miss. LEXIS 2053 (Miss. 1984).

18. – Colleges and universities, freedom of speech and press.

A state university’s prohibition on spectators bringing banners or flags larger than 12 by 14 inches into its football stadium was within the authority of the university and did not constitute deprivations of the plaintiff’s First Amendment rights. Barrett v. Khayat, 1999 U.S. Dist. LEXIS 17899 (N.D. Miss. Nov. 12, 1999).

The University of Virginia’s refusal to fund the printing of a newspaper published by a student organization because it had a Christian religious orientation violated the free speech guarantee of the First Amendment, and was not excused by the need to comply with the First Amendment’s establishment of religion clause, where the organization was not a religious institution in the usual sense of that term or as defined in the university’s own regulations, the organization sought funding as a student journal, no public funds would flow directly to the organization’s coffers, any benefit to religion would be incidental to the payment of printing costs from the student activities fund on a religion-neutral basis, and denial of payment risked fostering a pervasive bias or hostility to religion. Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 115 S. Ct. 2510, 132 L. Ed. 2d 700, 1995 U.S. LEXIS 4461 (U.S. 1995).

A college newspaper run by students and operated with student funds could properly refuse to print an advertisement proffered by a primarily off campus and homosexual group, particularly in light of the statute [§97-29-59] proscribing unnatural intercourse, such statute not being unconstitutional, and in light of the fact that university officials had nothing to do with the rejection of the advertisement. Mississippi Gay Alliance v. Goudelock, 536 F.2d 1073, 1976 U.S. App. LEXIS 7593 (5th Cir. Miss. 1976), cert. denied, 430 U.S. 982, 97 S. Ct. 1678, 52 L. Ed. 2d 377, 1977 U.S. LEXIS 1604 (U.S. 1977).

19. – Parades and demonstrations, freedom of speech and press.

The section of an ordinance enacted by the City of Tupelo authorizing the Chief of Police to deny a parade permit if he finds that “the conduct of the parade will probably cause injury to persons or property or provoke disorderly conduct or create a disturbance” is unconstitutional in that the term “disorderly conduct” is overbroad because it could be applied to deny permits to those seeking to engage in protected activity; the provision constitutes a prior restraint upon free speech because it is not narrowly drawn to relate to health, safety, and welfare interests, but instead sanctions the denial of a permit on the basis of the so-called “hecklers’ veto;” the provision is unconstitutionally vague as well since it contains no instructions directing the Chief of Police in the formulation of his opinion. The phrase “will probably cause injury” is constitutionally invalid since the term “probably” is simply too vague and indefinite and does not control adequately the discretion of the Chief in his determination of when to grant or deny a permit; the phrase “create a disturbance” is unconstitutional because it vests in the licensing authority the unbridled discretion to determine when, in his opinion, it is likely that criminal conduct will occur in the future. Limiting parade activity to the hours before 6:00 pm is invalid where it remains light in Tupelo well past that hour most of the year and the protection of citizens at night is not thereby jeopardized by a later time limit. The requirements of the ordinance that all paraders be unarmed, line up no more than four abreast, in the right-hand lane of the street, in units of 100 or fewer, with 15-foot intervals between units is unconstitutional in that it violates the Equal Protection Clause since such requirements do not apply to students or governmental agencies. The requirement that marchers act in an “orderly manner” is unconstitutionally overbroad; and the restriction on the use of “profanity” is void since profanity is protected speech unless it falls into such unprotected categories as obscenity or fighting words. Exemption of governmental agencies and students participating in educational activities from the licensing and regulatory requirements constitutes a violation of the Equal Protection Clause since such discrimination is based upon the content of the speech involved. That section of the ordinance which requires that the applicant for a permit demonstrate the noise level of sound equipment to be used is not facially unconstitutional since all it requires is a demonstration of the noise level; however, in the course of applying this statute, if the Chief of Police denies permits because of the demonstrated noise level of the equipment, the applicant will be able to make the argument offered herein that the section fails to give narrow and objective standards to be used in the determination. The blanket prohibition against sound equipment in areas zoned for residential purposes is overbroad because the ordinance presumes incompatibility based on an area’s merely being zoned residential and oftentimes areas zoned residential include structures other than homes, such as churches and schools, which are not incompatible with the use of sound equipment. The restriction of the operation of sound equipment at any location between the hours of 6:00 pm and 9:00 am is invalid where, although nighttime restrictions might be justifiable, the hour at which the restriction commences is not necessarily at night. Beckerman v. Tupelo, 664 F.2d 502, 1981 U.S. App. LEXIS 14949 (5th Cir. Miss. 1981).

20. – Entertainment, freedom of speech and press.

The court would reject the contention that a city ordinance which banned public nudity was facially overbroad because it infringed upon protected First Amendment conduct since the hypothetical examples raised by the appellant were not substantial. J & B Entertainment v. City of Jackson, 152 F.3d 362, 1998 U.S. App. LEXIS 20511 (5th Cir. Miss. 1998).

The court would vacate the district court’s grant of summary judgment in favor of the defendant city in an action challenging a city ordinance that banned public nudity since the record was too bare to support the conclusion that the city enacted the ordinance based on a desire to combat secondary effects linked to public nudity, as applied to nude dancing. J & B Entertainment v. City of Jackson, 152 F.3d 362, 1998 U.S. App. LEXIS 20511 (5th Cir. Miss. 1998).

City of Vicksburg Ordinance 93-37 § 1014(A)(1)(g), banning nude and semi-nude dancing in adult entertainment establishments, violated the First Amendment. Steverson v. City of Vicksburg, 900 F. Supp. 1, 1994 U.S. Dist. LEXIS 20777 (S.D. Miss. 1994).

City of Vicksburg Ordinance 93-37, prohibiting adult entertainment establishments from locating within 1000 feet of churches and certain other facilities, provided reasonable alternative avenues of communication for the purposes of determining whether it violated the First Amendment, where the city planning commissioner submitted evidence of 93 potential sites for such establishments, including at least 69 with road access. Steverson v. City of Vicksburg, 900 F. Supp. 1, 1994 U.S. Dist. LEXIS 20777 (S.D. Miss. 1994).

Pursuant to §67-3-65, a city was authorized to enact ordinances regulating light wine and beer on adult entertainment premises without showing any secondary effects or showing that such establishments were conducive to criminal behavior; accordingly, any artistic or communicative value that might attach to topless dancing was overridden by the city’s exercise of its broad powers arising under the Twenty-First Amendment, and the city’s prohibition of light wine and beer in a lounge featuring topless dancing was constitutionally permissible. Steverson v. City of Vicksburg, 900 F. Supp. 1, 1994 U.S. Dist. LEXIS 20777 (S.D. Miss. 1994).

City could not refuse to issue building permit for enlargement of premises which provided adult entertainment in form of topless dancing, despite fact that city claimed such entertainment would not be permitted in that area pursuant to zoning ordinance expected to be promulgated in future, where no such ordinance was currently in effect, and activities in question were protected by First Amendment. City of Jackson v. Lakeland Lounge, 800 F. Supp. 455, 1992 U.S. Dist. LEXIS 12245 (S.D. Miss.), rev'd, 973 F.2d 1255, 1992 U.S. App. LEXIS 24743 (5th Cir. 1992).

For purposes of showing irreparable harm in connection with request for injunction, violation of business’ First Amendment right to free speech was irreparable harm, even if it occurred for minimal period of time. City of Jackson v. Lakeland Lounge, 800 F. Supp. 455, 1992 U.S. Dist. LEXIS 12245 (S.D. Miss.), rev'd, 973 F.2d 1255, 1992 U.S. App. LEXIS 24743 (5th Cir. 1992).

For purposes of awarding injunction to adult entertainment business requiring city to issue building permit, balance of harms favored grant of injunctive relief, as prevention of business from making improvements to its facility violated its protected First Amendment rights, whereas granting injunction would not harm city. City of Jackson v. Lakeland Lounge, 800 F. Supp. 455, 1992 U.S. Dist. LEXIS 12245 (S.D. Miss.), rev'd, 973 F.2d 1255, 1992 U.S. App. LEXIS 24743 (5th Cir. 1992).

Injunction was warranted to prevent city from filing criminal affidavits asserting violation of building code in connection with occupancy against operators of adult entertainment business offering topless dancing, in light of evidence that city’s efforts in such regard were motivated in part by intent to deter exercise of First Amendment rights. City of Jackson v. Lakeland Lounge, 800 F. Supp. 455, 1992 U.S. Dist. LEXIS 12245 (S.D. Miss.), rev'd, 973 F.2d 1255, 1992 U.S. App. LEXIS 24743 (5th Cir. 1992).

Since a fair is a form of entertainment, a case involving a challenge to a zoning ordinance which severely limited the operation of fairs was one in which there was a protected interest under the First Amendment of the United States Constitution. Great South Fair v. Petal, 548 So. 2d 1289, 1989 Miss. LEXIS 395 (Miss. 1989).

21. – Defamation, freedom of speech and press.

First Amendment restrictions mandate that the plaintiff in a defamation action bear the burden of proving falsity. Burk v. Illinois C. G. R. Co., 529 So. 2d 515, 1988 La. App. LEXIS 1569 (La.App. 1 Cir.), cert. denied, 532 So. 2d 179, 1988 La. LEXIS 2528 (La. 1988).

Plaintiffs did not transform themselves into public figures for defamation purposes by merely pleading guilty to a misdemeanor charge of transporting cattle from one state to another without having them tested for brucellosis. Whitten v. Commercial Dispatch Pub. Co., 487 So. 2d 843, 1986 Miss. LEXIS 2452 (Miss. 1986).

In an editorial attacking three physicians operating an emergency room in a publicly funded hospital for demanding the ouster of the hospital administrator, the words “if I had such a good setup I wouldn’t want someone to come along and tear up my little playhouse either” constituted an opinion that the writer of the editorial had a right to express, and were not libelous. Ferguson v. Watkins, 448 So. 2d 271, 1984 Miss. LEXIS 1638 (Miss. 1984).

In an action against a newspaper for damages for malicious libel, plaintiffs failed to meet their burden of proving malice, reckless disregard for the truth, or knowledge of falsity of an article concerning a public official, where the evidence indicated that the reporter who wrote the article told his superior, immediately after informing plaintiffs that the article may have contained errors, that he thought he had “messed up,” showing a state of mind contrary to any supposition that when he submitted the article for publication he either knew or seriously doubted that it was false, and where the newspaper and reporter took every reasonable step to correct any error in the article, insofar as any implication against the plaintiffs was concerned. Gulf Pub. Co. v. Lee, 434 So. 2d 687, 1983 Miss. LEXIS 2673 (Miss. 1983).

In action against newspaper for invasion of privacy, failure to allege that publication was made with knowledge of its falsity, with reckless disregard for truth, or maliciously was not adequate to support demurrer since plaintiffs were not public figures and since jurisdiction recognized common law right to privacy, and the allegations, though possibly subject to technical criticism, sufficiently charged a tort to warrant a trial on the merits. Deaton v. Delta Democrat Publishing Co., 326 So. 2d 471, 1976 Miss. LEXIS 1746 (Miss. 1976).

Federal courts have pre-empted the field of libel and slander and have established that hatred, ill will, enmity, intent to harm or negligence are insufficient to establish malice toward those involved in discussions on public issues. Reaves v. Foster, 200 So. 2d 453, 1967 Miss. LEXIS 1321 (Miss. 1967).

A public school principal, plaintiff in an action for damages for libel, cannot recover unless he shows malice by proving that the defendant when he published the words in question either knew that they were false, or published them in reckless disregard of whether true or not. Reaves v. Foster, 200 So. 2d 453, 1967 Miss. LEXIS 1321 (Miss. 1967).

22. – Obscenity, freedom of speech and press.

Obscenity is not within the protection of the First Amendment to the United States Constitution under all of the authorities. McGrew v. Jackson, 307 F. Supp. 754, 1969 U.S. Dist. LEXIS 8711 (S.D. Miss. 1969), vacated, 401 U.S. 987, 91 S. Ct. 1221, 28 L. Ed. 2d 525, 1971 U.S. LEXIS 2572 (U.S. 1971).

23. Freedom of association – Generally.

The banishment of the defendant from a 100-mile radius of the place that he committed a burglary was not justified where the trial court did not make an on-the-record finding of the benefits of banishment. Weaver v. State, 764 So. 2d 479, 2000 Miss. App. LEXIS 351 (Miss. Ct. App. 2000).

The plaintiff failed to state a cause of action for a violation of her right of association where she alleged that family members and friends were harassed by the defendants with the specific purpose of interfering with her right to associate with such people, but failed to allege a protected intimate association. Walker v. Henderson, 1999 U.S. Dist. LEXIS 19638 (N.D. Miss. Dec. 9, 1999), aff'd, 239 F.3d 366, 2000 U.S. App. LEXIS 30118 (5th Cir. Miss. 2000).

A term of probation requiring defendant to remain at least 125 miles away from a particular county did not violate his First, Fifth, or Fourteenth Amendment rights, where the record indicated that the trial judge carefully and meticulously explained to defendant his rights, the trial court found that defendant voluntarily and knowingly pled guilty, the Department of Corrections conducted an investigation of defendant prior to sentencing, and defendant accepted the terms of probation, which were neither unreasonable nor arbitrary. Cobb v. State, 437 So. 2d 1218, 1983 Miss. LEXIS 2926 (Miss. 1983).

Right to peacefully picket grows out of right of freedom of speech and freedom of press. Southern Bus Lines, Inc. v. Amalgamated Ass'n of Street, etc., 205 Miss. 354, 38 So. 2d 765, 1949 Miss. LEXIS 435 (Miss. 1949).

24. Elections and politics.

Order that the judge be suspended from office for a period of one year was appropriate because his commentary on Caucasian official and their African-American appointees in his jurisdiction was not worthy of being deemed a matter of legitimate political concern in his reelection campaign, but merely an expression of his personal animosity. The comments were not made within the content, form, or context of a matter of legitimate public concern. Miss. Comm'n on Judicial Performance v. Osborne, 11 So.3d 107, 2009 Miss. LEXIS 278 (Miss. 2009).

First Amendment protected advertisements profiling judicial candidates for state Supreme Court; communications created by producer independent of candidate, without explicit terms advocating specific electoral action, were not subject to mandatory disclosure requirements for campaign expenditures under Miss. Code Ann. §§23-15-809 and 801(j). Chamber of Commerce of the United States v. Moore, 288 F.3d 187, 2002 U.S. App. LEXIS 6227 (5th Cir. Miss.), cert. denied, 537 U.S. 1018, 123 S. Ct. 536, 154 L. Ed. 2d 425, 2002 U.S. LEXIS 8339 (U.S. 2002).

25. Constitutional vagueness.

Supreme court declined to address defendant’s First Amendment vagueness claim because defendant cited no legal authority and provided no argument in support of her assertion that the retaliation statute, Miss. Code Ann. §97-9-127, infringed upon the First Amendment. Wilcher v. State, 227 So.3d 890, 2017 Miss. LEXIS 108 (Miss. 2017).

Kidnapping statute, Miss. Code Ann. §97-3-53, is not unconstitutionally vague because the use of other descriptive words in §97-3-53, such as e.g. and inveigle, leave defendants well informed on the crimes of which they are accused. Perkins v. State, 863 So. 2d 47, 2003 Miss. LEXIS 657 (Miss. 2003).

Amendment II Right to bear arms

A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

RESEARCH REFERENCES

Am. Jur.

16A Am Jur 2d, Constitutional Law §§ 415-418, 422.

79 Am Jur 2d, Weapons and Firearms § 4.

CJS.

C.J.S. Weapons §§ 3-8.

Amendment III Soldiers denied quarter in homes

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

RESEARCH REFERENCES

Am. Jur.

16A Am. Jur. 2d, Constitutional Law §§ 415-418, 422.

Law Reviews.

Recent Decision: Constitutional Law—Taxpayer Standing to Challenge Executive Spending—Discretionary Spending versus Spending Pursuant to Congressional Authority, 77 Miss. L.J. 695, Winter, 2007.

JUDICIAL DECISIONS

24. —- Admissibility of evidence, warrantless searches and seizures.

Anonymous tip, alone, did not possess sufficient indicia of reliability to provide Mississippi Bureau of Narcotic agents with reasonable suspicion to stop a group or its individual members because they were merely acting upon information provided through an anonymous tip; however, the agents personally observed “suspicious” behavior as soon as they arrived on the scene, thereby establishing an independent ground for reasonable suspicion. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

Amendment IV Search and seizure

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

ATTORNEY GENERAL OPINIONS

The mere fact that an individual is openly carrying a weapon, absent anything more, does not give a law enforcement officer grounds to detain that individual or to require him to submit to questioning. Lance, June 13, 2013, 2013 Miss. AG LEXIS 111.

RESEARCH REFERENCES

ALR.

Search and seizure: “furtive” movement or gesture as justifying police search. 45 A.L.R.3d 581.

Admissibility of evidence discovered in search of adult defendant’s property or residence authorized by defendant’s minor child – state cases. 99 A.L.R.3d 598.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by domestic employee or servant. 99 A.L.R.3d 1232.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by defendant’s spouse (resident or nonresident cases) – state cases. 1 A.L.R.4th 673; 65 A.L.R.5th 407.

Admissibility of evidence discovered in warrantless search of rental property authorized by lessor of such property – state cases. 2 A.L.R.4th 1173; 61 A.L.R.5th 1.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by defendant’s adult relative other than spouse – state cases. 4 A.L.R.4th 196; 55 A.L.R.5th 125.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by one, other than relative, who is cotenant or common resident with defendant–state cases. 4 A.L.R.4th 1050.

Odor of narcotics as providing probable cause for warrantless search. 5 A.L.R.4th 681.

Use of electronic sensing device to detect shoplifting as unconstitutional search and seizure. 10 A.L.R.4th 376.

Adequacy of defense counsel’s representation of criminal client regarding search and seizure issues. 12 A.L.R.4th 318.

Employment of photographic equipment to record presence and nature of items as constituting unreasonable search. 27 A.L.R.4th 532.

Searches and seizures: reasonable expectation of privacy in contents of garbage or trash receptacle. 28 A.L.R.4th 1219; 62 A.L.R.5th 1.

Searches and seizures: validity of searches conducted as condition of entering public premises – state cases. 28 A.L.R.4th 1250.

Propriety in state prosecution of severance of partially valid search warrant and limitation of suppression to items seized under invalid portions of warrant. 32 A.L.R.4th 378.

Search and seizure: what constitutes abandonment of personal property within rule that search and seizure of abandoned property is not unreasonable – modern cases. 40 A.L.R.4th 381.

Admissibility, in criminal case, of physical evidence obtained without consent by surgical removal from person’s body. 41 A.L.R.4th 60.

Officer’s ruse to gain entry as affecting admissibility of plain-view evidence – modern cases. 47 A.L.R.4th 425.

Search and seizure: necessity that police obtain warrant before taking possession of, examining, or testing evidence discovered in search by private person. 47 A.L.R.4th 501.

Eavesdropping on extension telephone as invasion of privacy. 49 A.L.R.4th 430.

Propriety of state or local government health officer’s warrantless search – post-Camara cases. 53 A.L.R.4th 1168.

Search and seizure of telephone company records pertaining to subscriber as violation of subscriber’s constitutional rights. 76 A.L.R.4th 536.

Observation through binoculars as constituting unreasonable search. 59 A.L.R.5th 615.

Search and seizure: reasonable expectation of privacy in driveways. 60 A.L.R.5th 1.

Belief that burglary is in progress or has recently been committed as exigent circumstances justifying warrantless search of premises. 64 A.L.R.5th 637.

Validity of anticipatory search warrants. 67 A.L.R.5th 361.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by one, other than relative, who is cotenant or common resident with defendant – state cases. 68 A.L.R.5th 343.

Civilian participation in execution of search warrant as affecting legality of search. 68 A.L.R.5th 549.

Effect of retroactive consent on legality of otherwise unlawful search and seizure. 76 A.L.R.5th 563.

Permissibility and sufficiency of warrantless use of thermal imager or Forward Looking Infra-Red Radar (F.L.I.R.). 78 A.L.R.5th 309.

Validity of police roadblocks or checkpoints for purpose of discovery of illegal narcotics violations. 82 A.L.R.5th 103.

Validity of Search or Seizure of Computer, Computer Disk, or Computer Peripheral Equipment. 84 A.L.R.5th 1.

What Constitutes Compliance With Knock-and-Announce Rule in Search of Private Premises – State Cases. 85 A.L.R.5th 1.

Federal and State Constitutions as Protecting Prison Visitor Against Unreasonable Searches and Seizures. 85 A.L.R.5th 261.

Denial of accused’s request for initial contact with attorney in cases involving offenses other than drunk driving - cases focusing on presence of inculpatory evidence other than statements by accused and cases focusing on absence of particular inculpatory evidence. 90 A.L.R.5th 225.

Constitutionality of secret video surveillance. 91 A.L.R.5th 585.

Expectation of privacy in internet communications. 92 A.L.R.5th 15.

Destruction of property as violation of Fourth Amendment. 98 A.L.R.5th 305.

Validity of requirement that, as condition of probation, defendant submit to warrantless searches. 99 A.L.R.5th 557.

Error, in either search warrant or application for warrant, as to address of place to be searched as rendering warrant invalid. 103 A.L.R.5th 463.

Admissibility, in civil proceeding, of evidence obtained through unlawful search and seizure. 105 A.L.R.5th 1.

Odor detectable by unaided person as furnishing probable cause for search warrant. 106 A.L.R.5th 397.

When are facts offered in support of search warrant for evidence of sale or possession of cocaine so untimely as to be stale – State cases. 109 A.L.R.5th 99.

When are facts offered in support of search warrant for evidence of sexual offense so untimely as to be stale – State cases. 111 A.L.R.5th 239.

When are facts relating to marijuana, provided by one other than police or other law enforcement officer, so untimely as to be stale when offered in support of search warrant for evidence of sale or possession of a controlled substance – State cases. 112 A.L.R.5th 429.

When are facts relating to drug other than cocaine or marijuana so untimely as to be stale when offered in support of search warrant for evidence of sale or possession of controlled substance – State cases. 113 A.L.R.5th 517.

Validity of warrantless search of motor vehicle based on odor of marijuana – State cases. 114 A.L.R.5th 173.

When are facts relating to marijuana, provided by police or other law enforcement officer, so untimely as to be stale when offered in support of search warrant for evidence of sale or possession of controlled substance – State cases. 114 A.L.R.5th 235.

Validity of warrantless search based in whole or in part on odor of narcotics other than marijuana, or chemical related to manufacture of such narcotics. 115 A.L.R.5th 477.

Validity of routine roadblocks by state or local police for purpose of discovery of driver’s license, registration, and safety violations. 116 A.L.R.5th 479.

Use of trained dog to detect narcotics or drugs as unreasonable search in violation of state constitutions. 117 A.L.R.5th 407.

Adequacy of defense counsel’s representation of criminal client regarding search and seizure issues – Motions and objections during trial and matters other than pretrial motions. 117 A.L.R.5th 513.

Validity of warrantless search of other than motor vehicle or occupant of vehicle based on odor of marijuana-State cases. 122 A.L.R.5th 439.

Validity of warrantless search of motor vehicle driver based on odor of marijuana-State cases. 123 A.L.R.5th 179.

Validity of search conducted pursuant to parole warrant. 123 A.L.R.5th 221.

Application in state narcotics cases of collective knowledge doctrine or fellow officers’ rule under Fourth Amendment – Drugs other than marijuana and cocaine and unidentified drugs. 12 A.L.R.6th 553.

Construction and application of rule permitting knock and talk visits under Fourth Amendment and state constitutions. 15 A.L.R.6th 515.

When Does Use of Taser Constitute Violation of Constitutional Rights. 45 A.L.R.6th 1.

Federal court determination of probable cause for search warrant: consideration of oral testimony which was, in addition to affidavit, before officer who issued warrant. 24 A.L.R. Fed. 107.

Use of trained dog to detect narcotics or drugs as unreasonable search in violation of Fourth Amendment. 31 A.L.R. Fed. 931; 150 A.L.R. Fed. 399.

Construction and application of “national security” exception to Fourth Amendment search warrant requirement. 39 A.L.R. Fed. 646.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by defendant’s relative. 48 A.L.R. Fed. 131.

Admissibility of evidence discovered in warrantless search of property or premises authorized by one having ownership interest in property or premises other than relative. 49 A.L.R. Fed. 511.

Sufficiency of description of business records under Fourth Amendment requirement of particularity in federal warrant authorizing search and seizure. 53 A.L.R. Fed. 679.

Validity, under Federal Constitution, of search conducted as condition of entering public building. 53 A.L.R. Fed. 888.

Aerial observation or surveillance as violative of Fourth Amendment guaranty against unreasonable search and seizure. 56 A.L.R. Fed. 772.

Attachment or use of transponder (beeper) to monitor location of airplane or automobile as constituting “search” within Fourth Amendment. 57 A.L.R. Fed. 646.

Validity, under Fourth Amendment, of “mail cover”. 57 A.L.R. Fed. 742.

Propriety in federal prosecution of severance of partially valid search warrant and limitation of suppression to items seized under invalid portions of warrant. 69 A.L.R. Fed. 522.

What constitutes “an opportunity for full and fair litigation” in state court precluding habeas corpus review under 28 USCS § 2254 in federal court of state prisoner’s Fourth Amendment claims. 75 A.L.R. Fed. 9.

Fourth Amendment as prohibiting strip searches of arrestees or pretrial detainees. 78 A.L.R. Fed. 201.

What circumstances fall within “inevitable discovery” exception to rule precluding admission, in criminal case, of evidence obtained in violation of Federal Constitution. 81 A.L.R. Fed. 331.

Supreme Court’s views on mandatory testing for drugs or alcohol. 145 A.L.R. Fed. 335.

When is consent voluntarily given so as to justify search conducted on basis of that consent—Supreme Court cases. 148 A.L.R. Fed. 271.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by defendant’s spouse. 154 A.L.R. Fed. 579.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by defendant’s adult relative other than spouse. 160 A.L.R. Fed. 165.

Validity of warrantless administrative inspection of business that is allegedly closely or pervasively regulated; cases decided since Colonnade Catering Corp. v. U.S., 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60 (1970).182 A.L.R. Fed. 467.

When are facts offered in support of search warrant for evidence of federal nondrug offense so untimely as to be stale. 187 A.L.R. Fed. 415.

Validity of warrantless search of motor vehicle based on odor of marijuana – Federal cases. 188 A.L.R. Fed. 487.

Validity of warrantless search of other than motor vehicle or occupant of motor vehicle based on odor of marijuana – Federal cases. 191 A.L.R. Fed. 303.

Sufficiency of information provided by confidential informant, whose identity is known to police, to provide probable cause for federal search warrant where there was indication that informant provided reliable information to police in past-Cases decided after Ilinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).196 A.L.R. Fed. 1.

Am. Jur.

3A Am. Jur. 2d, Aliens and Citizens §§ 55, 59, 65, 66, 70, 72, 73, 75, 80, 82, 83, 85, 86, 89, 92, 94, 96, 104.

3B Am. Jur. 2d, Aliens and Citizens § 1848.

5 Am. Jur. 2d, Arrest §§ 2, 3, 14, 17, 30, 81, 93.

7A Am. Jur. 2d, Automobiles and Highway Traffic § 126.

9 Am. Jur. 2d, Bankruptcy § 11.

16 Am. Jur. 2d, Constitutional Law § 43.

16 Am. Jur. 2d, Constitutional Law § 336-355.

16A Am. Jur. 2d, Constitutional Law §§ 415-418, 422.

16B Am. Jur. 2d, Constitutional Law § 651.

21 Am. Jur. 2d, Criminal Law §§ 439, 516, 523.

29 Am. Jur. 2d, Evidence § 764.

29A Am. Jur. 2d, Evidence § 1217.

31A Am. Jur. 2d, Extradition § 62.

35 Am. Jur. 2d, Federal Tax Enforcement § 295.

42 Am. Jur. 2d, Injunctions § 79.

45 Am. Jur. 2d, Intoxicating Liquors § 380.

46 Am. Jur. 2d, Judges § 66.

47 Am. Jur. 2d, Jury § 74.

68 Am. Jur. 2d, Searches and Seizures § 1.

22 Am Jur Pl & Pr Forms (Rev), Searches and Seizures, Forms 1 et seq. (requisites of valid warrant); 41 et seq. (effect of illegal search and seizure in criminal proceeding); 101 et seq. (civil liability for wrongful search and seizure). 65 A.L.R.5th 407.

108 Am. Jur. Proof of Facts 3d, Proof of Public School District Liability for Injuries or Damages to Student Resulting from Harassment of Student by Teacher or Other District Staff Member, p. 1.

109 Am. Jur. Proof of Facts 3d, Password-Protected Electronic Evidence in Civil Actions, p. 1.

109 Am. Jur. Proof of Facts 3d, Establishing Personal Liability of Public School Teacher for Injuries or Damage to Student Resulting from Harassment or Bullying of Student by Teacher, p. 105.

116 Am. Jur. Proof of Facts 3d, Criminal Pretrial Involving Text Messaging Evidence, p. 345.

5 Am. Jur. Trials, Pretrial Procedures and Motions in Criminal Cases, p. 27.

5 Am. Jur. Trials, Excluding Illegally Obtained Evidence, p. 331.

64 Am. Jur. Trials, Asserting Claims of Unconstitutional Prison Conditions, p. 425.

92 Am. Jur. Trials, Criminal Defense: Assault and Battery Cases, p. 1.

106 Am. Jur. Trials, Admission of E-Mail Evidence in Criminal Actions, p. 351.

117 Am. Jur. Trials, Criminal Trials Involving Password-Protected Evidence, p. 193.

CJS.

C.J.S. Searches and Seizures §§ 2 to 58, 102, 128 to 132, 149.

Lawyers’ Edition.

Constitutionality of searching premises without search warrant as incident to valid arrest. 23 L. Ed. 2d 966.

Warrantless removal and test by federal agent of powder discovered in damaged package by employees of freight company held not violative of Fourth Amendment. 80 L. Ed. 2d 85.

Warrantless “murder scene” search of defendant’s home held unconstitutional. 80 L. Ed. 2d 246.

INS factory surveys held not to violate the Fourth Amendment. 80 L. Ed. 2d 247.

Warrantless automobile search held constitutional even though vehicle had been impounded and secured. 80 L. Ed. 2d 381.

Warrantless search of packages 3 days after their seizure from vehicle held permissible under Fourth Amendment. 80 L. Ed. 2d 890.

Installation of beeper in container of chemicals held not to constitute search or seizure but monitoring of beeper in private residence held to violate Fourth Amendment. 82 L. Ed. 2d 530.

Evidence obtained in reasonable reliance on defective search warrant held admissible. 82 L. Ed. 2d 677.

Twenty-minute investigative detention of suspected drug trafficker held not to violate Fourth Amendment. 84 L. Ed. 2d 605.

Compelled surgical procedure to remove bullet from suspect’s chest held to constitute unreasonable search under Fourth Amendment. 84 L. Ed. 2d 662.

Transporting suspect to police station for fingerprinting without probable cause, warrant, or consent held violative of Fourth Amendment. 84 L. Ed. 2d 705.

Detention and “seizure” of defendant at airport held justified by articulable suspicion. 93 L. Ed. 2d 165.

What constitutes “seizure” within meaning of Federal Constitution’s Fourth Amendment – Supreme Court cases. 100 L. Ed. 2d 981.

Admissibility, in criminal case, of evidence for purpose of impeachment of witness, as exception to exclusionary rule precluding admission of evidence obtained in violation of federal constitutional rights–Supreme Court cases. 107 L Ed 2d 1162.

Constitutionality of searching premises without warrant as incident to valid arrest–Supreme Court cases. 108 L Ed 2d 987.

Supreme Court’s views as to constitutionality of inventory searches. 109 L Ed 2d 776.

When is evidence which is obtained after unconstitutional search or seizure sufficiently remote from such search or seizure so as not to be tainted by, and not to be inadmissible as fruit of, such search or seizure–Supreme Court cases. 109 L Ed 2d 787.

Supreme Court’s views as to application or applicability of doctrine of qualified immunity in action under 42 USCS § 1983, or in Bivens action, seeking damages for alleged civil rights violations. 116 L Ed 2d 965.

When will Supreme Court restrict federal habeas corpus review, under rule of Stone v Powell (1976) 428 US 465, 49 L Ed 2d 1067, 96 S Ct 3037, and its successors, where state has afforded accused full and fair opportunity to litigate federal constitutional claim. 123 L Ed 2d 681.

Interest in property as basis for accused’s standing to raise question of constitutionality of search or seizure–Supreme Court cases. 123 L Ed 2d 733.

When will private right of action for damages (“Bivens” action) be implied from provision of Federal Constitution—Supreme Court cases. 127 L Ed 2d 715.

Supreme Court’s views as to admissibility in criminal case, under United States v Leon and its progeny, of evidence obtained in alleged violation of Federal Constitution’s Fourth Amendment by law enforcement officers relying on quashed or defective warrant. 131 L Ed 2d 1021. Taking of individual’s bodily fluid or material for analysis or comparison as violating individual’s rights under Federal Constitution–Supreme Court. 132 L Ed 2d 1021.

Requirement, under Federal Constitution’s Fourth Amendment guarantee against unreasonable searches and seizures, that warrants, when issued upon probable cause, must be supported “by Oath or affirmation”–Supreme Court cases. 139 L Ed 2d 971.

Applicability and application, to questions concerning what violates Federal Constitution’s Fourth Amendment guarantee against unreasonable searches and seizures, of “knock and announce” doctrine that law enforcement officers, before entering premises, must knock and announce some matters–Supreme Court cases. 140 L Ed 2d 1111.

Applicability and application, to questions concerning what violates Federal Constitution’s Fourth Amendment guarantee against unreasonable searches and seizures, of “knock and announce” doctrine that law enforcement officers, before entering premises, must knock and announce some matters–Supreme Court cases. 140 L Ed 2d 1111.

Power of Indian tribe, nation, or band to impose tax on non-Indians–Supreme Court cases. 149 L Ed 2d 1211.

Validity, under Federal Constitution’s Fourth Amendment, of investigative stop of motor vehicle by roving federal border patrol–Supreme Court cases. 151 L Ed 2d 1111.

Supreme Court’s views as to what constitutes probable cause sufficient, under Federal Constitution’s Fourth Amendment, for issuance of search warrant. 164 L Ed 2d 867.

Validity, under Federal Constitution’s Fourth Amendment, of search assertedly conducted pursuant to consent–Supreme Court cases. 164 L Ed 2d 905.

Validity, under Federal Constitution’s Fourth Amendment, of searches of parolees or probationers on asserted basis of their status–Supreme Court cases. 165 L Ed 2d 1055.

Supreme Court’s views as to extent of prosecutorial immunity from liability for damages for alleged violations of civil rights. 172 L Ed 2d 905.

DNA tests or evidence in, or related to, criminal prosecutions–Supreme Court cases. 174 L Ed 2d 655.

Validity, with respect to accused’s rights under Federal Constitution, of lineup, showup, or other identification procedures or circumstances involving alleged witness to crime–Supreme Court cases. 181 L Ed 2d 1055.

Obtaining evidence by use of mechanical or electronic eavesdropping device (“bugging”) as violation of Federal Constitution’s Fourth Amendment–Supreme Court cases. 181 L Ed 2d 1081.

Law Reviews.

Bufkin, Terry and Miranda: The Conflict Between the Fourth and Fifth Amendments of the United States Constitution.18 Miss. College L. R. 199, Fall 1997.

Call, The Constitutionality of Warrantless Doorway Arrests, 19 Miss C.L. Rev. 333 (Spring, 1999).

Symposium: Rube Goldberg Meets the Constitution: The Supreme Court, Technology and the Fourth Amendment, 72 Miss. L.J. 5, Fall, 2002.

Symposium: Katz, Kyllo, and Technology: Virtual Fourth Amendment Protection in the Twenty-First Century, 72 Miss. L.J. 51, Fall, 2002.

Symposium: Back to the Future: Kyllo, Katz, and Common Law, 72 Miss. L.J. 143, Fall, 2002.

Symposium: Public Privacy: Camera Surveillance of Public Places and the Right to Anonymity, 72 Miss. L.J. 213, Fall, 2002.

Symposium: Technology and the Threshold of the Fourth Amendment: A Tale of Two Futures, 72 Miss. L.J. 317, Fall, 2002.

Symposium: A Fourth Amendment “Search” in the Age of Technology: Postmodern Perspectives, 72 Miss. L.J. 447, Fall, 2002.

Essay: Coping with Technological Change: Kyllo and the Proper Analytical Structure to Measure the Scope of Fourth Amendment Rights, 72 Miss. L.J. 447, Fall, 2002.

The End of Reasonableness in the Reasonableness Clause: Atwater v. City of Lago Vista, 22 Miss. C. L. Rev. 135, Fall, 2002.

Comment: A Constitutional Analysis of Random Vehicle Searches at Airports, 73 Miss. L.J. 263, Fall, 2003.

Foreword: Symposium: The Permissibility of Race or Ethnicity as a Factor in Assessing the Reasonableness of a Search or Seizure, 73 Miss. L.J. 365, Spring, 2003.

Quakers, Slaves and the Founders: Profiling to Save the Union, 73 Miss. L.J. 369, Spring, 2003.

Using Race or Ethnicity as a Factor in Addressing the Reasonableness of Fourth Amendment Activity: Description, Yes; Prediction, No, 73 Miss. L.J. 423, Spring, 2003.

“Voluntary” Interviews and Airport Searches of Middle Eastern Men: The Fourth Amendment in a Time of Terror, 73 Miss. L.J. 471, Spring, 2003.

Terrorism, Race and a New Approach to Consent Searches, 73 Miss. L.J. 525, Spring, 2003.

Note: Weighing Society’s Need for Effective Law Enforcement Against an Individual’s Right to Liberty: Swinney v. State and the Forty-Eight Hour Rule, 24 Miss. C. L. Rev. 73, Fall, 2004.

Symposium article: Overcoming Hiddenness: The Role of Intentions in Fourth Amendment Analysis, 74 Miss. L.J. 553, 2004.

Symposium article: Protecting the Citizen “Whilst He Is Quiet”: Suspicionless Searches, “Special Needs” and General Warrants, 74 Miss. L.J. 501, 2004.

Symposium; The Tools to Interpret the Fourth Amendment: Foreword, 74 Miss. L.J. 273, 2004.

Symposium article: Making the Right Gamble: The Odds on Probable Cause, 74 Miss. L.J. 279, 2004.

Symposium article: The Fourth Amendment and the Fallacy of Composition: Determinacy Versus Legitimacy in a Regime of Bright-Line Rules, 74 Miss. L.J. 341, 2004.

Symposium article: Terry v. Ohio at Thirty-Five: A Revisionist View, 74 Miss. L.J. 423, 2004.

Symposium article: “A Flame of Fire”: The Fourth Amendment in Perilous Times, 74 Miss. L.J. 631, 2004.

Symposium: The Search and Seizure of Computers and Electronic Evidence: The Fourth Amendment in an Era of Ubiquitous Technology, 75 Miss. L.J. 1, Fall, 2005.

Symposium: The Search and Seizure of Computers and Electronic Evidence: Search Warrants in an Era of Digital Evidence, 75 Miss. L.J. 85, Fall, 2005.

Symposium: The Search and Seizure of Computers and Electronic Evidence: Transaction Surveillance by the Government, 75 Miss. L.J. 139, Fall, 2005.

Symposium: The Search and Seizure of Computers and Electronic Evidence: The Fourth Amendment Aspects of Computer Searches and Seizures: A Perspective and a Primer, 75 Miss. L.J. 193, Fall, 2005.

Symposium: The Search and Seizure of Computers and Electronic Evidence: Computer Searches of Probationers — Diminished Privacies, “Special Needs” & “‘Whilst’ Quiet Pedophiles” — Plugging the Fourth Amendment into the “Virtual Home Visit”, 75 Miss. L.J. 273, Fall, 2005.

Reflections on Standing: Challenges to Searches and Seizures in a High Technology World, 75 Miss. L.J. 1099, Spring, 2006.

Symposium: Programmatic Purpose, Subjective Intent, and Objective Intent: What Is the Proper Role of “Purpose” Analysis to Measure the Reasonableness of a Search or Seizure?: The Reasonable Policeman: Police Intent in Criminal Procedure, 76 Miss. L.J. 339, 2006.

Symposium: Programmatic Purpose, Subjective Intent, and Objective Intent: What Is the Proper Role of “Purpose” Analysis to Measure the Reasonableness of a Search or Seizure?: Subjective “Intent” as a Component of Fourth Amendment Reasonableness, 76 Miss. L.J. 373, 2006.

Symposium: Programmatic Purpose, Subjective Intent, and Objective Intent: What Is the Proper Role of “Purpose” Analysis to Measure the Reasonableness of a Search or Seizure?: Expressive Fourth Amendment: Rethinking the Good Faith Exception to the Excsionary Rule, 76 Miss. L.J. 483, 2006.

The Detention of Material Witnesses and the Fourth Amendment, 76 Miss. L.J. 585, 2006.

Symposium: Independent State Ground: Should State Courts Depart from the Fourth Amendment in Construing Their Own Constitutions, and if so, on What Basis Beyond Simple Disagreement with the United States Supreme Court’s Result?; Foreword, 77 Miss. L.J. i, Fall, 2007.

Symposium article: State Constitutional Methodology in Search and Seizure Cases, 77 Miss. L.J. 225, Fall, 2007.

Symposium article: Correcting Search-and-Seizure History: Now-Forgotten Common-Law Warrantless Standards and the Original Understanding of “Due Process of Law”, 77 Miss. L.J. 1, Fall, 2007.

Symposium article: Reactive and Incompletely Theorized State Constitutional Decision-Making, 77 Miss. L.J. 265, Fall, 2007.

Symposium article: Fourth Amendment and Independent State Grounds, 77 Miss. L.J. 401, Fall, 2007.

Rights Without Remedies: The Court that Cried “Wolf”, 77 Miss. L.J. 401, Fall, 2007.

Note: Recipe for Disaster: Analyzing the Interplay Between the Castle Doctrine and the Knock-and-Announce Rule After Hudson v. Michigan, 27 Miss. C. L. Rev. 435, 2007/2008.

Practice References.

Young, Trial Handbook for Mississippi Lawyers §§ 27:3 et seq.

JUDICIAL DECISIONS

1. In general.

2. Criminal proceedings.

3. Standing to challenge search.

4. Expectation of privacy.

5. Use of force.

6. Health inspections.

7. Private searches.

8. Governmental records.

9. School facilities.

10. Correctional facilities.

11. Game warden.

12. Surveillance.

13. Roadblocks.

14. Possession of stolen property.

15. Physical evidence.

16. Fingerprints.

17. Blood, bodily fluids, etc.

18. Handwriting exemplars.

19. Breathalyzer test.

20. Surgical procedure.

21. Medical treatment.

22. Search warrant – In general.

23. –Affidavit, search warrant.

24. – Probable cause, search warrant.

25. – Guilty plea in absence of search warrant.

26. –Totality of circumstances, search warrant.

27. – Curtilage, search warrant.

28. – Sufficiency of search warrant.

28.5. Invalid warrant, search warrant.

29. Execution of warrant.

30. –Return, search warrant.

31. Scope of search with warrant.

32. Search without warrant – In general.

33. – Consent, search without warrant.

34. – Emergency situations, search without warrant.

35. – Plain view, search without warrant.

36. –Informant, search without warrant.

37. –Open fields doctrine, search without warrant.

38. –Fruit of poisonous tree, search without warrant.

39. – Inevitable discovery, search without warrant.

40. –Motor vehicles, search without warrant.

41. –Luggage, search without warrant.

42. –Drugs, search without warrant.

43. –Observation by police officer, search without warrant.

44. – “Reasonable suspicion” under “Terry” rule.

45. – Probable cause, search without warrant.

46. –Abandonment of property, search without warrant.

47. – Admissibility of evidence, search without warrant.

48. Search incident to arrest.

49. Review.

50. Surveillance or use of informant’s tip.

51. Confrontation of witnesses – In general.

52. – Hearsay evidence, confrontation of witnesses.

53. Seizure – Temporary detention.

54. - Lawful detention under “Terry” rule, temporary detention.

55. — Stop versus arrest, seizure.

56. Flight; attempt to evade police.

1. In general.

Where defendant was charged with and found guilty of felony driving under the influence of alcohol, the trial court did not err in denying defense counsel’s motion to suppress evidence of defendant’s blood alcohol results; the warrant authorizing the blood alcohol test was valid and thus, defendant’s constitutional rights were not violated. Inter alia, the officer observed defendant’s slurred speech and staggered walk, and he noted that defendant’s breath smelled of alcohol and defendant actually admitted to having drunk four beers that morning and was unable to recite the alphabet. Dove v. State, 912 So. 2d 1091, 2005 Miss. App. LEXIS 738 (Miss. Ct. App. 2005).

In a possession of marijuana case, defendant was not denied his due process rights in the revocation of his postrelease supervision as there was evidence that defendant had waived his rights to a hearing and that he had admitted to violating his probation. Hughes v. State, 901 So. 2d 1274, 2004 Miss. App. LEXIS 932 (Miss. Ct. App. 2004).

The rule that failure to object at trial waives objection on appeal applies to Fourth Amendment claims. Simply put, if a defendant fails to object to the admission of illegally obtained evidence, the objection is waived. Brown v. State, 875 So. 2d 214, 2003 Miss. App. LEXIS 1192 (Miss. Ct. App. 2003), cert. denied, 876 So. 2d 376, 2004 Miss. LEXIS 697 (Miss. 2004).

Where a decedent had pointed a loaded gun at officers in violation of Miss. Code Ann. §97-3-7, had refused to lower the gun, had backed into his house, and had initiated fire at the officers, an officer reasonably believed that his life and the lives of other officers at the scene were in imminent danger; hence, there was no violation of the decedent’s Fourth Amendment rights when the officer followed the decedent into the latter’s home, where the officer returned fire and mortally injured the decedent. Elkins v. McKenzie, 865 So. 2d 1065, 2003 Miss. LEXIS 582 (Miss. 2003).

The protections offered by the Fourth Amendment do not apply if the plaintiff challenges only continued incarceration following a seizure pursuant to a facially valid warrant. Jones v. City of Jackson, 203 F.3d 875, 2000 U.S. App. LEXIS 1992 (5th Cir. Miss. 2000).

A mere police pursuit in attempting to seize a person does not amount to a seizure within the Fourth Amendment. Topps v. City of Hollandale, 2000 U.S. Dist. LEXIS 9925 (N.D. Miss. June 30, 2000).

The Fourth Amendment to the Federal Constitution and Article 3, § 23 of the Mississippi Constitution apply to volunteer firefighters who conduct a warrantless search of fire-damaged premises. Rose v. State, 586 So. 2d 746, 1991 Miss. LEXIS 527 (Miss. 1991).

There is no discovery violation as to an officer’s notes, taken in the presence of witnesses and destroyed in good faith. Thus, the destruction of original handwritten notes of a defendant’s statement, which were transcribed into a typed statement, and admission of the typed statement into evidence, did not deprive the defendant of his rights to a fair and impartial trial and adequate defense as provided by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Woodward v. State, 533 So. 2d 418, 1988 Miss. LEXIS 492 (Miss. 1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1767, 104 L. Ed. 2d 202, 1989 U.S. LEXIS 2004 (U.S. 1989).

Search, of person who makes sudden reaching motion toward pocket upon being informed that officers have warrant for person’s arrest, is reasonable. Dixon v. State, 465 So. 2d 1092, 1985 Miss. LEXIS 1994 (Miss. 1985).

Earlier it had been said that this guaranty is directed at the exercise of Federal authority, and not at the states and their agencies. Tucker v. State, 128 Miss. 211, 90 So. 845, 1922 Miss. LEXIS 108 (Miss. 1922); Nash v. State, 171 Miss. 279, 157 So. 365, 1934 Miss. LEXIS 232 (Miss. 1934).

2. Criminal proceedings.

On the inmate’s claim that his execution would be unconstitutional under the Eighth and Fourteenth Amendments because he was mentally retarded, he was entitled to and did not receive an Atkins hearing because the inmate met the requirements of Chase and its progeny; the inmate’s claim was not procedurally barred under Miss. Code Ann. §99-39-21(1) because he could not have raised the claim before the trial court, as the Atkins decision was decided 12 days after the inmate was sentenced to death. Thorson v. State, 994 So. 2d 707, 2007 Miss. LEXIS 497 (Miss. 2007).

Denial of the inmate’s motion for postconviction relief was proper where his Fourth Amendment argument was procedurally barred because a guilty plea waived the right to raise Fourth Amendment challenges on appeal. Jones v. State, 922 So. 2d 31, 2006 Miss. App. LEXIS 103 (Miss. Ct. App. 2006).

A defendant’s constitutional rights were not violated when the public was excluded from a hearing on a petition to revoke his suspended sentence and probation; the hearing was not a part of a criminal prosecution and thus the full panoply of rights due a defendant in a criminal prosecution under the requirements of the United States and Mississippi Constitutions did not apply. Williams v. State, 409 So. 2d 1331, 1982 Miss. LEXIS 1873 (Miss. 1982).

Defendant does not waive his objection to illegally obtained evidence by testifying in his own behalf, although he admits having the contraband in his possession. Keys v. State, 283 So. 2d 919, 1973 Miss. LEXIS 1235 (Miss. 1973).

A defendant who was not present at the time and place where a search and seizure took place is without standing to attack its legality, and cannot object to the introduction in evidence of the fruits of the seizure. Robinson v. State, 219 So. 2d 916, 1969 Miss. LEXIS 1430 (Miss. 1969).

3. Standing to challenge search.

Defendant had standing to challenge the search and seizure of his computer files by the police after he had authorized a third party to work on his computer’s operating system where the illicit photographs were not obtained as a direct result of the third party’s private search but rather under the purported authority of an invalid search warrant. Chesney v. State, 165 So.3d 498, 2015 Miss. App. LEXIS 277 (Miss. Ct. App. 2015).

Defendant failed to establish that he had a reasonable expectation of privacy in a motel room where money from a bank robbery was found as the room was registered in the name of a third party; as defendant did not produce evidence that he had a reasonable expectation of privacy in the motel room, he lacked standing to contest the search and the admission of the evidence obtained as a result of the search. Lyons v. State, 942 So. 2d 247, 2006 Miss. App. LEXIS 501 (Miss. Ct. App. 2006), cert. denied, 957 So. 2d 1004, 2007 Miss. LEXIS 269 (Miss. 2007).

The defendant did not have standing to assert a constitutional violation based on the warrantless search of a motor vehicle, which was located on property being searched pursuant to a warrant, that was actually owned by his wife. Jenkins v. State, 1999 Miss. App. LEXIS 301 (Miss. Ct. App. May 18, 1999), aff'd, 759 So. 2d 1229, 2000 Miss. LEXIS 123 (Miss. 2000).

4. Expectation of privacy.

Defendant had no standing to challenge under U.S. Const. amend. IV, or Miss. Const. Art. III, § 23, evidence seized from the vehicle that he stole after killing a victim because defendant had no expectation of privacy in the stolen vehicle. Walker v. State, 913 So. 2d 198, 2005 Miss. LEXIS 216 (Miss.), cert. denied, 546 U.S. 1038, 126 S. Ct. 743, 163 L. Ed. 2d 581, 2005 U.S. LEXIS 8688 (U.S. 2005).

Defendant did not have his Fourth Amendment rights infringed as he was a passenger, and did not have standing to challenge contraband found in car. McCollins v. State, 798 So. 2d 624, 2001 Miss. App. LEXIS 432 (Miss. Ct. App. 2001).

Defendant, as a mere passenger, could not challenge the search of the car or the seizure of the contents therein, even if the contents were found to be in defendant’s personal property. Maldonado v. State, 796 So. 2d 247, 2001 Miss. App. LEXIS 298 (Miss. Ct. App. 2001).

A defendant charged with capital murder had no reasonable expectation of privacy during a conversation with his wife in which he told her that he had committed the alleged crime because she would not come back to him, and that if she and the children had been in the house at the time of the crime, they would be lying next to the victims, where the statements were made while the two were seated near the open door of a room in the sheriff’s department, which led into an outer office occupied by five to seven people who were approximately two to three feet away, and continued while the two were entering into the outer office occupied by the third parties. Dycus v. State, 440 So. 2d 246, 1983 Miss. LEXIS 2790 (Miss. 1983).

The relevant inquiry under the Fourth Amendment is whether the police have infringed upon some legitimate expectation of privacy which the defendant had. Accordingly, a defendant had no standing under the Fourth Amendment to complain about a warrantless entry by police officers in another’s home nor the seizure of contraband therein. Moss v. State, 411 So. 2d 90, 1982 Miss. LEXIS 1889 (Miss. 1982).

Where the record revealed that all persons who wanted to do business with the defendant were impliedly invited to approach the house in which he was staying along a circular driveway to a point where the defendant met law enforcement officers to ascertain what he could do for them, and where the officers purchased and received from the defendant a bottle of intoxicating liquor but made no search of the person or premises of the defendant, the testimony of the officers was not inadmissible on the ground that the purchase was an illegal search or that their testimony was in effect a method of requiring the defendant to testify against himself. Lyons v. State, 195 So. 2d 91, 1967 Miss. LEXIS 1438 (Miss. 1967).

5. Use of force.

In a 42 U.S.C.S. § 1983 suit, an arrestee adequately pled claims for excessive use of force against a police officer because he had a clearly established Fourth Amendment right not to be bodily removed from his car after being stopped for careless driving and thrown to the ground; the officer’s actions were not shielded by the doctrine of qualified immunity or governmental immunity arising under Miss. Code Ann. §11-46-9(1). Stepney v. City of Columbia, 2009 U.S. Dist. LEXIS 16376 (S.D. Miss. Feb. 18, 2009).

The defendant police officer was not entitled to summary judgment in an action alleging that he used excessive force in arresting the plaintiff since the court could not say that a reasonable officer, facing the plaintiff, who was neither resisting arrest nor physically confrontational, and who was recovering from recent medical procedures, would have considered the defendant’s actions an objectively reasonable response to the situation at hand. Dallas v. City of Okolona, 1999 U.S. Dist. LEXIS 19547 (N.D. Miss. Dec. 7, 1999).

Suit alleging that school official grabbed arm of student did not show type of action calculated to cause serious injury, nor did not such act evince malice or intention to cause injury, and even if serious injuries may have resulted, nature of contact suggested that any injuries were unintended rather than calculated and that if force used was in fact excessive, it came from carelessness or excess of zeal rather than malice. Whether physical harm by state officer rises to level of constitutional deprivation depends on extent of injury inflicted, degree of force used in proportion to amount necessary under circumstances, and motives of official; bottom-line inquiry is whether official’s conduct amounted to abuse of official power that shocks conscience. Cole v. Newton Special Municipal Separate School Dist., 676 F. Supp. 749, 1987 U.S. Dist. LEXIS 12455 (S.D. Miss. 1987), aff'd, 853 F.2d 924, 1988 U.S. App. LEXIS 10868 (5th Cir. Miss. 1988).

6. Health inspections.

Guaranties against unreasonable searches and seizures do not apply to routine inspections by sanitary officers, nor does it apply to inspections made pursuant to advance information that the health laws have been, or are about to be, violated. Grillis v. State, 196 Miss. 576, 17 So. 2d 525, 1944 Miss. LEXIS 237 (Miss. 1944).

When a person carries on a business for the dispensation and sale of food for human consumption and members of the public are invited to become patrons, the proprietor of the establishment thereby impliedly consents that the public, through its authorized departmental agents or officers, may from time to time make such reasonable inspections as will protect against unwholesomeness of the food and against any unwholesome conditions surrounding the preparation thereof, and against disease which might result therefrom, and so consenting the search and seizure provision of the state and Federal constitutions is not involved, so far as health officers are concerned. Grillis v. State, 196 Miss. 576, 17 So. 2d 525, 1944 Miss. LEXIS 237 (Miss. 1944).

Search and seizure of diseased hog meat found in accused’s restaurant by city health officers without a search warrant, upon advance information that the health laws had been, or were about to be, violated, did not constitute a violation of the constitutional prohibition against unreasonable searches and seizures. Grillis v. State, 196 Miss. 576, 17 So. 2d 525, 1944 Miss. LEXIS 237 (Miss. 1944).

7. Private searches.

In a prosecution for burglary, the trial court properly entered into evidence a wristwatch which was recovered by the victim after he had received information that defendant had committed the burglary and was living in the same apartment complex, after which he went to the apartment and secured the tenant’s permission to search defendant’s belongings, found the stolen watch, and then called the police and conducted a second search in the presence of an officer; a search by a private individual for purely private reasons does not violate the Fourth Amendment. Lucas v. State, 381 So. 2d 140, 1980 Miss. LEXIS 1851 (Miss. 1980), overruled, Wharton v. State, 734 So. 2d 985, 1998 Miss. LEXIS 576 (Miss. 1998).

Where defendant’s neighbor, a private person, not connected with the police observed from his own premises marijuana growing on defendant’s adjoining land, and after conversation with an officer, he went back alone and at his own election, and plucked several of the plants which he later took to the police, and there was no participation by the police in any of these actions and nothing at all was done by them until after a search warrant had been issued, trial court did not err in denying a motion to suppress the evidence and quash the indictment on grounds that the neighbor committed a trespass upon defendant’s land in obtaining the marijuana plants. Wolf v. State, 281 So. 2d 445, 1973 Miss. LEXIS 1497 (Miss. 1973).

8. Governmental records.

Permanent injunction has been issued to prevent enforcement of §39-5-63 because this act and others relating to sealing of files of state sovereignty commission, which had a clandestine purpose of perpetuating racial inequality, unconstitutionally infringe on black citizens’ rights to free speech and association, personal privacy, and lawful search and seizure. ACLU v. Mabus, 719 F. Supp. 1345, 1989 U.S. Dist. LEXIS 9679 (S.D. Miss. 1989), vacated, 911 F.2d 1066, 1990 U.S. App. LEXIS 16085 (5th Cir. Miss. 1990).

9. School facilities.

The search of a student’s automobile by a school official while on school property did not violate the search and seizure clause of the Fourth Amendment where (1) the principal was informed by another student that the student in question had been drinking in the school parking lot and the story was corroborated by other students, and (2) the principal knew of no reason or motive that would cause the other students to lie about the actions of the student in question. Covington County v. G.W., 767 So. 2d 187, 2000 Miss. LEXIS 182 (Miss. 2000).

The warrantless search of a high school student’s locker by school officials was reasonable under the circumstances and offended no federal constitutional standards where another student had told the assistant principal that the first student had offered to sell him 2 handguns and had told him that he had the guns at school. S.C. v. State, 583 So. 2d 188, 1991 Miss. LEXIS 387 (Miss. 1991).

10. Correctional facilities.

Prison inmate does not have reasonable expectation of privacy in his prison cell entitling him to protection of Fourth Amendment against unreasonable searches and seizures. Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393, 1984 U.S. LEXIS 143 (U.S. 1984).

Appellant’s Fourth Amendment rights were no greater as an escapee than they were while he was within the confines of penitentiary, and he had no standing to object to a warrantless search of his motel room and his effects by police officers. Swearingen v. Culpepper, 312 So. 2d 15, 1975 Miss. LEXIS 1638 (Miss. 1975).

11. Game warden.

The stop and search of defendant’s pick-up truck at a roadblock set up by game wardens to conduct routine game checks in a wildlife management area did not constitute a condemned intrusion on defendant’s Fourth Amendment right against unreasonable search and seizure. Drane v. State, 493 So. 2d 294, 1986 Miss. LEXIS 2379 (Miss. 1986), cert. denied, 482 U.S. 916, 107 S. Ct. 3189, 96 L. Ed. 2d 677, 1987 U.S. LEXIS 2537 (U.S. 1987).

Where a warrant for a search of an accused’s land was based upon information acquired by a game warden who committed a trespass upon the land while “checking for violations”, the search by a sheriff under the warrant was illegal, since a legal search must be based on preceding steps which are themselves lawful in their entirety. Davidson v. State, 240 So. 2d 463, 1970 Miss. LEXIS 1302 (Miss. 1970).

12. Surveillance.

With regard to defendant’s contention that the State conducted illegal surveillance of his telephone calls by placing a digital tape recorder on his telephone, the court found that defendant was not entitled to relief because he had waived the right to challenge the State’s evidence by entering a valid guilty plea to the offense of conspiracy to manufacture methamphetamine. Sweat v. State, 910 So. 2d 12, 2004 Miss. App. LEXIS 1110 (Miss. Ct. App. 2004), aff'd in part and rev'd in part, 912 So. 2d 458, 2005 Miss. LEXIS 661 (Miss. 2005).

Testimony of police officers as to a conversation in defendant’s home between the defendant and a confidential informer, who was invited into the home, which was electronically transmitted to the officers by a transmitter concealed on the informer, was admissible in defendant’s trial for illegal sale and possession of a controlled substance, notwithstanding that no search warrant had been issued. Lee v. State, 489 So. 2d 1382, 1986 Miss. LEXIS 2465 (Miss. 1986).

Installation of beeper in container of chemicals with consent of original owner does not constitute search or seizure within meaning of Fourth Amendment when container is delivered to buyer having no knowledge of presence of beeper; however, warrantless monitoring of beeper in private residence, a location not open to visual surveillance, violates Fourth Amendment rights of those having justifiable interest in privacy of residence. United States v. Karo, 468 U.S. 705, 104 S. Ct. 3296, 82 L. Ed. 2d 530, 1984 U.S. LEXIS 148 (U.S. 1984).

Where, pursuant to an offer by the defendant to theft victim to obtain the return of his stolen property for a payment of $200, the defendant met the victim in a place where he was under the observation of a police detective, produced the stolen articles and received the $200 which the detective took from defendant’s hand when he placed him under arrest for receiving stolen property, there was no violation of defendant’s right of privacy or right of due process, and a search warrant was unnecessary for the stolen articles were seen in defendant’s possession prior to his arrest. Bennett v. State, 211 So. 2d 520, 1968 Miss. LEXIS 1268 (Miss. 1968), cert. denied, 393 U.S. 320, 89 S. Ct. 555, 21 L. Ed. 2d 515, 1969 U.S. LEXIS 2866 (U.S. 1969).

13. Roadblocks.

Checkpoint was set up in daylight, on a straight thoroughfare, and there was a definitive plan established by the officers for checking vehicles; appellant’s stop was conducted in a safe and reasonable manner. Thus, any minor deviation from the departmental policy was reasonable under the circumstances and did not violate appellant’s constitutional rights. Field v. State, 28 So.3d 697, 2010 Miss. App. LEXIS 101 (Miss. Ct. App. 2010).

Checkpoint for the purpose of valid license checking was constitutional; where defendant was stopped, arrested for driving with a suspended license, and had his car searched, his constitutional rights were not violated as defendant was not singled out and the search was conducted incidentally to a lawful arrest as the deputy had probable cause to believe defendant was driving without a proper license. Johnston v. State, 853 So. 2d 144, 2003 Miss. App. LEXIS 503 (Miss. Ct. App. 2003).

Seizure of defendant for driving under the influence following a stop at a routine police roadblock being conducted to check vehicles for compliance with traffic laws relating to registration and licensing requirements did not violate defendant’s rights under either Miss. Const. art 3, § 23 or the Fourth Amendment to the Constitution of the United States, and the trial court properly admitted a test result showing defendant’s blood alcohol content as .152. Dixon v. State, 828 So. 2d 844, 2002 Miss. App. LEXIS 549 (Miss. Ct. App. 2002).

A roadblock set up to check licenses and outstanding warrants was constitutional as the degree of intrusion into the defendant’s liberty caused by the roadblock was minimal where the defendant was treated the same way as any other driver who approached this roadblock and the roadblock did not involve drug dogs or mandatory searches of automobiles. Dale v. State, 785 So. 2d 1102, 2001 Miss. App. LEXIS 204 (Miss. Ct. App. 2001).

A roadblock intended principally to detect unlicensed drivers or improperly registered and uninspected vehicles is constitutionally permissible. Briggs v. State, 741 So. 2d 986, 1999 Miss. App. LEXIS 357 (Miss. Ct. App. 1999).

When a motorist appears to be attempting to evade a police roadblock, a police officer may stop that motorist to check for a valid license tag and inspection sticker. Boyd v. State, 751 So. 2d 1050, 1998 Miss. App. LEXIS 949 (Miss. Ct. App. 1998).

Police officers who set up a roadblock after receiving information that employees of two nearby factories were driving without licenses and who were checking all drivers did not violate defendant’s constitutional rights in stopping his automobile and detaining its occupants and, upon smelling the odor of burning marijuana emanating from defendant’s car, had probable cause to search it; the police officers were also authorized to seize the marijuana in defendant’s car where one of the officers observed a purse or bag in the lap of defendant’s wife with the corner of a plastic bag protruding therefrom in which he saw a green leafy substance that he suspected to be marijuana. Miller v. State, 373 So. 2d 1004, 1979 Miss. LEXIS 2345 (Miss. 1979).

14. Possession of stolen property.

Possession of stolen property is illegal per se, and the seizure of such is not within the constitutional guaranty. Williams v. State, 216 Miss. 158, 61 So. 2d 793, 1953 Miss. LEXIS 619 (Miss. 1953).

Where officers who were lawfully upon premises under a warrant based on probable cause to search for intoxicating liquors found and recognized some stolen property, this property was of contraband nature subject to seizure though it was not one of the designated objects of search, and the evidence of the stolen property obtained by such seizure was admissible in prosecution for theft of the property. Williams v. State, 216 Miss. 158, 61 So. 2d 793, 1953 Miss. LEXIS 619 (Miss. 1953).

15. Physical evidence.

Seizure of partially burned clothing that had belonged to decedent was reasonable where the items were found on property not shown to belong to the defendant and were in open view to the public. Brown v. Findley Seed Co., 330 So. 2d 597, 1976 Miss. LEXIS 1865 (Miss. 1976).

16. Fingerprints.

The taking of fingerprints is a search for purposes of the Fourth Amendment. Hooker v. State, 716 So. 2d 1104, 1998 Miss. LEXIS 324 (Miss. 1998).

17. Blood, bodily fluids, etc.

Defendant’s conviction for DUI maiming was proper because he consented to a blood sample, he never objected to the introduction of the blood-analysis evidence during the course of the testimony by a witness with the Mississippi Crime Laboratory, defendant did not object to the admission of testimony by a doctor regarding the amount of other substances found in the blood sample and the impairing effects of the other substances, defendant’s objection made at trial did not state with requisite specificity the basis for the objection to the admission of the testimony, and a deputy was permitted to testify as to what he personally observed concerning defendant’s written consent to the blood test. Irby v. State, 2010 Miss. LEXIS 423 (Miss. Aug. 12, 2010), sub. op., 49 So.3d 94, 2010 Miss. LEXIS 638 (Miss. 2010).

Although defendant claimed that taking his blood sample constituted an unlawful search and seizure in violation of his Fourth Amendment rights because the officer had no probable cause to take his blood, the court found that drawing blood evidence from a defendant at the hospital without a warrant following an accident was not a violation of the defendant’s Fourth Amendment rights because the law enforcement officer had probable cause given that the facts surrounding the accident evinced reasonable suspicion that evidence material to the criminal investigation, an illegal blood alcohol level, would be found. Deeds v. State, 27 So.3d 1135, 2009 Miss. LEXIS 588 (Miss. 2009), cert. denied, 562 U.S. 836, 131 S. Ct. 150, 178 L. Ed. 2d 37, 2010 U.S. LEXIS 5807 (U.S. 2010).

There was no constitutional violation where the state crime laboratory requested and obtained a second blood sample from the defendant in a murder prosecution after it found a discrepancy between the identification numbers of the vials of blood and the numbers listed on the submission form of the original sample. Morris v. State, 777 So. 2d 16, 2000 Miss. LEXIS 113 (Miss. 2000).

Section 63-11-8, which mandates that blood be taken from any driver involved in a fatal accident regardless of the existence of probable cause to believe that alcohol or drugs were involved, is unconstitutional because it requires search and seizure absent probable cause. McDuff v. State, 763 So. 2d 850, 2000 Miss. LEXIS 110 (Miss. 2000).

A capital murder defendant’s objection to the admission of a blood sample obtained without a warrant was barred by the waiver of §99-39-21(1) where the defendant did not raise the issue on direct appeal, since the basis of the Fourth Amendment objection to the admission of illegally obtained evidence is well known, and the defendant had practically no chance of escaping conviction even without the blood sample evidence. Woodward v. State, 635 So. 2d 805, 1993 Miss. LEXIS 442 (Miss. 1993).

An officer’s failure to inform the defendant that he had a right to refuse the officer’s request for a blood sample did not render the test results inadmissible in a manslaughter prosecution against the defendant where the officer had probable cause to obtain the blood sample in that the officer knew that the defendant was the driver of an automobile which had collided head on with another vehicle, the collision occurred on a straight and level highway when the road condition was dry, the officer knew that at least two people were dead in the vehicle which the defendant hit, the officer had observed a beer in the defendant’s vehicle, and the defendant had slurred speech and dilated pupils. For a search which would otherwise be illegal, absent consent, knowledgeable waiver of one’s constitutional right not to be searched is guaranteed by Article 3, § 23 of the Mississippi Constitution. However, blood searches which are based upon probable cause are not illegal, and, therefore, the question of the defendant’s knowledgeable waiver was not relevant. Longstreet v. State, 592 So. 2d 16, 1991 Miss. LEXIS 840 (Miss. 1991).

There was no constitutional violation in obtaining hair and blood samples from a defendant where he was under lawful arrest, the blood was removed in a reasonable manner by a physician at a hospital, the hair samples were taken by a registered nurse, and the officers “had good reason to examine” the defendant’s hair. Bevill v. State, 556 So. 2d 699, 1990 Miss. LEXIS 27 (Miss. 1990).

In prosecution for vehicular manslaughter, blood sample from allegedly intoxicated defendant absent his arrest or consent was admissible evidence, where probable cause to make search existed at time of sample’s collection, given defendant’s display of symptoms of intoxication, such as slurred speech, immediately following his automobile’s striking rear of decedent’s truck, parked wholly off interstate highway. Gibson v. State, 503 So. 2d 230, 1987 Miss. LEXIS 2338 (Miss. 1987).

Admission into evidence of results of blood alcohol test at trial for manslaughter and aggravated assault arising out of a motor vehicle accident was reversible error, where deputy sheriff who investigated the accident had insufficient probable cause to request a blood alcohol test for defendant driver, in view of deputy’s statement that he smelled no odor of alcohol on defendant either at the accident scene or at the hospital, he observed no whiskey bottles or beer cans in defendant’s car, no aspect of defendant’s speech, appearance or behavior indicated that he was under the influence of alcohol, and deputy admitted that the real reason for requesting the blood alcohol test was because it was sheriff department policy to do so when someone was killed in an automobile accident. Cole v. State, 493 So. 2d 1333, 1986 Miss. LEXIS 2641 (Miss. 1986).

The Fourth Amendment prohibition against unreasonable search and seizure applies when an intrusion into the body–such as a blood test–is undertaken without a warrant, absent an emergency situation. Cole v. State, 493 So. 2d 1333, 1986 Miss. LEXIS 2641 (Miss. 1986).

In a criminal prosecution, where a police officer was justified in requiring a blood test to determine the alcoholic content in defendant’s blood, and such test had in fact been performed, although for diagnostic and not law enforcement purposes, the State was entitled to the benefit of the test results, and the result of the blood test administered at the direction of defendant’s physician was admissible. Ashley v. State, 423 So. 2d 1311, 1982 Miss. LEXIS 2266 (Miss. 1982).

The Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified or which are made in an improper manner. The drawing of blood from a rape suspect for a blood-semen test did not violate the suspect’s Fourth Amendment right to be secure in his person, where the warrant for the blood test was issued upon sufficient evidence of probable cause. Birchfield v. State, 412 So. 2d 1181, 1982 Miss. LEXIS 1929 (Miss. 1982).

18. Handwriting exemplars.

There is no Fourth Amendment privacy expectation in handwriting exemplars and, therefore, the use of trickery as a method for obtaining handwriting exemplars is at worst, bad practice. Burns v. State, 729 So. 2d 203, 1998 Miss. LEXIS 567 (Miss. 1998), cert. denied, 527 U.S. 1041, 119 S. Ct. 2406, 144 L. Ed. 2d 804, 1999 U.S. LEXIS 4526 (U.S. 1999).

19. Breathalyzer test.

Where defendant was in lawful custody, his right to be secure from an unreasonable search was not violated by police officers who administered a photoelectric intoximeter test, which tests the breath of a person without intrusion into the body. Jackson v. State, 310 So. 2d 898, 1975 Miss. LEXIS 1915 (Miss. 1975).

20. Surgical procedure.

Search warrants are required, absent an emergency, where intrusions into the human body are concerned and testing procedures plainly constitute searches of persons and depend antecedently upon seizures of persons within the meaning of the Fourth Amendment. Daniel v. State, 536 So. 2d 1319, 1988 Miss. LEXIS 611 (Miss. 1988).

Compelled surgical procedure to remove bullet from suspect’s chest constituted unreasonable search under Fourth Amendment. Winston v. Lee, 470 U.S. 753, 105 S. Ct. 1611, 84 L. Ed. 2d 662, 1985 U.S. LEXIS 76 (U.S. 1985).

21. Medical treatment.

A defendant’s constitutional right to privacy was not violated by the State’s taking the defendant to the health department for treatment of gonorrhea where the defendant was charged with capital rape of a child who was found to have gonorrhea, since the State’s interest in operating a prison and providing for the health of inmates outweighed the privacy interests of the defendant. Ormond v. State, 599 So. 2d 951, 1992 Miss. LEXIS 153 (Miss. 1992).

22. Search warrant – In general.

The court rejected the contention that a judge was not an impartial magistrate because he personally completed the affidavit for search warrant and the actual search warrant where the judge testified at the suppression hearing that the information contained in the affidavit was received from a police officer and the officer testified that he signed both forms indicating his assent to the accuracy of the information. Bryant v. State, 746 So. 2d 853, 1998 Miss. App. LEXIS 1027 (Miss. Ct. App. 1998).

The delay from the time of a defendant’s arrest until he was taken before a judicial officer did not violate Rule 1.04, Miss. Unif. Crim. R. Cir. Ct. Prac. and the 4th Amendment to the United States Constitution where his initial hearing was held within 48 hours of the time he was taken into custody for questioning, and there was no indication that the officers were purposely holding him in custody to gather sufficient evidence to justify his arrest; thus, his confession was not a product of any delay in taking him before a magistrate and was therefore admissible. Thorson v. State, 653 So. 2d 876 (Miss. 1994), reh’g denied (Miss. Apr. 20, 1995).

A search warrant was not defective because it erroneously named the defendant as the owner of the property to be searched. The Fourth Amendment does not require that either the affidavit or the warrant give the name of the owner of the property to be searched; identifying the owner of the premises is relevant only to assist and aid in particularizing the place to be searched. Williams v. State, 583 So. 2d 620, 1991 Miss. LEXIS 396 (Miss. 1991).

A narcotics agent’s failure to hand the defendant a copy of the search warrant for her residence did not require reversal even though the defendant should have received a copy of the warrant pursuant to §41-29-157; failure to follow this ministerial provision does not void an otherwise valid search. Williams v. State, 583 So. 2d 620, 1991 Miss. LEXIS 396 (Miss. 1991).

There was no merit to a defendant’s claim that the judge who issued 2 search warrants was not neutral and detached on the basis that the judge who went to the scene of the crime and saw the body also issued the search warrants, where there was no showing as to how this, in and of itself, created any prejudice or bias towards the defendant. Bevill v. State, 556 So. 2d 699, 1990 Miss. LEXIS 27 (Miss. 1990).

A judge who issues a search warrant is not required to confer on the searching officer the full range of authority allowed by law. The judge is within his prerogatives to limit the officer’s authority, either by use of a pre-printed form or by inter-lined language. Strange v. State, 530 So. 2d 1336, 1988 Miss. LEXIS 349 (Miss. 1988).

The Fourth Amendment was designed to protect against “general warrants” and other exploratory searches. The fact that contraband is believed to be on the premises cannot in and of itself justify a warrantless search. The discovery of evidence does not “create” an exigent circumstance such that a valid warrant is not required. Carney v. State, 525 So. 2d 776, 1988 Miss. LEXIS 175 (Miss. 1988).

Justice Court Judge who issued search warrant was neutral and detached magistrate where nothing in record indicated that judge acted in biased manner when he issued search warrant; central requirement for valid search warrant is that it must be issued by neutral and detached magistrate, and substantial involvement in search is forbidden; however, magistrate who goes to scene, issues warrant, and remains there for some time does not abdicate his proper position. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Fact that magistrate primarily relies on fact that sworn police officers are asking for search warrant rather than on anything in particular in affidavit of underlying facts and circumstances does not mean that magistrate is not acting in neutral and detached manner in issuing warrant where judge issues warrant only if judge feels that it is warranted. McCommon v. State, 467 So. 2d 940, 1985 Miss. LEXIS 2043 (Miss.), cert. denied, 474 U.S. 984, 106 S. Ct. 393, 88 L. Ed. 2d 345, 1985 U.S. LEXIS 4442 (U.S. 1985).

In a prosecution for the unlawful possession of intoxicating liquor, State’s evidence obtained in a search of the defendant’s premises pursuant to search warrant was inadmissible where the affidavit and search warrant were not produced on the trial, and the proof was insufficient to show their loss. Harvey v. State, 232 Miss. 294, 98 So. 2d 764, 1957 Miss. LEXIS 475 (Miss. 1957).

Search warrants are in the nature of criminal process and may be invoked only in furtherance of public prosecutions, and statutes providing for their issuance and execution are sustained, under constitutional provisions forbidding unreasonable search and seizure, only as a necessary means in suppression of crime and detection and punishment of criminals. Brooks v. Wynn, 209 Miss. 156, 46 So. 2d 97, 1950 Miss. LEXIS 374 (Miss. 1950).

Evidence obtained by coroner under illegal warrant for search and seizure of intoxicating liquor was inadmissible in prosecution for permitting games of chance to be played for money on defendant’s premises. Millwood v. State, 198 Miss. 485, 23 So. 2d 496, 1945 Miss. LEXIS 219 (Miss. 1945).

Warrant directing search for and seizure of intoxicating liquor, issued merely to any lawful officer of the county, constitutes a legal search warrant, but the coroner, unless the sheriff is disqualified under § 3906, cannot lawfully serve it. Millwood v. State, 198 Miss. 485, 23 So. 2d 496, 1945 Miss. LEXIS 219 (Miss. 1945).

Warrant issued by justice of the peace addressed and delivered to the coroner as such directing him to search for and seize intoxicating liquor although the sheriff suffered no disqualification within the purview of Code 1942 § 3906, and which was served as directed by the coroner while acting as such officer, was illegal and evidence obtained under authority of such search warrant was inadmissible, notwithstanding that the warrant was also addressed to any lawful officer of the county. Millwood v. State, 198 Miss. 485, 23 So. 2d 496, 1945 Miss. LEXIS 219 (Miss. 1945).

23. –Affidavit, search warrant.

Where defendant was taken to a hospital after a two-car collision, the search warrant for a blood draw was invalid because: (1) the officer who requested the search warrant falsely stated in his affidavit that defendant had (a) refused to submit to an “analysis of his breath” after having been offered an opportunity to submit, and (b) been placed under arrest for driving while under the influence, although at that time he had not yet been arrested; and (2) there were no exigent circumstances present at the hospital that would have justified a blood test since defendant was not fleeing, and the officer obviously had time to secure a warrant, albeit an invalid one. As to the admissibility of defendant’s statements about having consumed several beers, made to police at the scene of the accident, defendant did not claim that he was in custody at the time, and his statements clearly had probative value, thus the trial court did not abuse its discretion in allowing the statements to be admitted into evidence despite the defendant’s argument that he was disoriented, confused, and suffering from shock and retrograde amnesia when he made the statements and they were therefore not reliable. Shaw v. State, 938 So. 2d 853, 2005 Miss. App. LEXIS 987 (Miss. Ct. App. 2005), cert. denied, 937 So. 2d 450, 2006 Miss. LEXIS 602 (Miss. 2006).

Where defendant was convicted of felonious sexual intercourse with a child under the age of 14, felonious sexual penetration with a child less than 18, and possession of materials depicting children under the age of 18 engaging in sexually explicit conduct, the circuit court had not erred in not granting his pretrial motion to suppress evidence obtained by a search warrant based on the statements of the child victim because she specifically stated that defendant had showed her pictures of nude people on his computer screen doing things she described as “gross.” She used language to describe acts performed on her and by her in relation to defendant in such sexually explicit terms that veracity could easily be inferred. Foley v. State, 914 So. 2d 677, 2005 Miss. LEXIS 586 (Miss. 2005).

An affidavit offered by a police officer for the purpose of getting a warrant can be based on hearsay. Donerson v. State, 812 So. 2d 1081, 2001 Miss. App. LEXIS 118 (Miss. Ct. App. 2001).

When defendant asserts that information contained in affidavit supporting application for search warrant constitutes false swearing, then reviewing court must determine, with false material set aside, whether affidavit’s remaining content, together with sworn oral testimony presented to issuing magistrate, is sufficient to establish probable cause. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

Even though underlying facts stated in affidavit for search warrant, considered alone, may not be sufficient to confer probable cause for issuance of warrant, oral testimony adduced before issuing magistrate, when taken together with affidavit, may sufficiently establish probable cause for issuance of search warrant under totality of circumstances test. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

Affidavit supporting application for warrant to search defendant’s motel room, when excised of false information, was not by itself sufficient to establish probable cause for issuance of warrant, where affidavit provided merely that officer who was executing other warrant found defendant in possession of large quantity of currency and motel room key, and motel manager verified that motel room was registered to defendant. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

An affidavit for a search warrant was not fatally defective merely because the attached page containing a description of the residence to be searched was not signed by the affiants, where other pages of the affidavit were signed, and the narcotics agent who was the author of the warrant and application swore that the description was not substituted. Williams v. State, 583 So. 2d 620, 1991 Miss. LEXIS 396 (Miss. 1991).

Detailed underlying facts supporting the affidavits for 2 search warrants furnished the judge with probable cause for issuing the search warrants, even though the criminal investigator who executed the affidavits erred in some of the statements set forth in the underlying facts, where the investigator was cross-examined at the suppression hearing at great length by the defendant’s attorney, there was no showing that the investigator intentionally misrepresented those facts or made them in reckless disregard for the truth, and the remaining underlying facts clearly constituted probable cause for the issuance of the search warrants. Bevill v. State, 556 So. 2d 699, 1990 Miss. LEXIS 27 (Miss. 1990).

In a prosecution for possession of intoxicating liquor, the trial court erred in overruling defendant’s motion to suppress evidence seized during a search of his home, based on his contention that the warrant was defective, where the underlying facts and circumstances portion of the affidavit, stating that a deputy had called the affiant and said that after several observations of defendant over a period of time “he was apparently selling whiskey,” was insufficient as a matter of law. Washington v. State, 382 So. 2d 1086, 1980 Miss. LEXIS 1966 (Miss. 1980).

For an affidavit to be sufficient to meet Fourth Amendment standards, the informant or the affiant must have reasonable information or cause to believe that the items sought pursuant to the search warrant are located in the premises to be searched, and, if the information which the affiant uses as the basis of his probable cause for a search warrant was obtained from an informant, there must be underlying facts and circumstances alleged which would show the independent magistrate that the informant was reliable and that his information was reasonably trustworthy. Ratliff v. State, 310 So. 2d 905, 1975 Miss. LEXIS 1918 (Miss. 1975).

In order to justify the issuance of a valid search warrant the basic affidavit must include a statement by the affiant of the underlying facts and circumstances upon which he relies as constituting probable cause so that the magistrate may judge for himself the persuasiveness of the facts to show probable cause. Burnett v. State, 227 So. 2d 479, 1969 Miss. LEXIS 1363 (Miss. 1969).

The affidavit of a sheriff, the basis for the issuance of a warrant to search the premises of the defendant for unlawfully possessed intoxicating liquor, which stated that the affiant’s belief that defendant unlawfully possessed intoxicating liquor in her home was based on “information given me by a person who on other occasions has given me information found to be true and correct” was insufficient to support the issuance of the warrant. Burnett v. State, 227 So. 2d 479, 1969 Miss. LEXIS 1363 (Miss. 1969).

Where the affidavit for a search warrant fails to allege facts or circumstances from which the justice of the peace could judicially ascertain or determine probable cause, but sets forth nothing more than a mere conclusion, it does not meet the requirements of this amendment, and a search warrant issued upon such an affidavit is void. Walker v. State, 192 So. 2d 270, 1966 Miss. LEXIS 1240 (Miss. 1966).

A search warrant, issued in case involving possession of intoxicating liquors upon the statutory affidavit that the affiant “has reason to believe and does believe,” was not invalid as a violation of the Fourth Amendment to the Federal Constitution, since such amendment applies only to the exercise of Federal authority and has no application to state action. Armstrong v. State, 195 Miss. 300, 15 So. 2d 438, 1943 Miss. LEXIS 155 (Miss. 1943).

24. – Probable cause, search warrant.

Local ordinance’s inspection provisions were unconstitutional due to the lack of a valid warrant provision because, although the ordinance had a warrant procedure, the procedure was constitutionally deficient where it expressly allowed a warrant to issue without probable cause, which meant that the ordinance effectively contained no warrant requirement, and the ordinance unconstitutionally forced landlords to either consent to a warrantless search or forego a rental license. Crook v. City of Madison, 168 So.3d 930, 2015 Miss. LEXIS 352 (Miss. 2015).

Threshold requirements for probable cause to support the issuance of the original search warrant were not met, and therefore the trial court erred by denying defendant’s motion to suppress the evidence obtained as a result of the first and second search warrants, where the chief admitted that he had only spoken with the confidential informant a couple of times and he had never met, and there was nothing in the affidavit to establish that the information provided by the informant was credible or reliable or that the chief attempted to corroborate the informant’s statement through additional independent investigation. Chesney v. State, 165 So.3d 498, 2015 Miss. App. LEXIS 277 (Miss. Ct. App. 2015).

Substantial basis existed for a finding of probable cause to issue search warrants for defendant’s person and vehicle because the oral testimony of the officer who requested the search warrants raised a fair probability that evidence of the crime would be found on defendant’s person and in defendant’s vehicle. Batiste v. State, 121 So.3d 808, 2013 Miss. LEXIS 295 (Miss. 2013), cert. denied, 572 U.S. 1117, 134 S. Ct. 2287, 189 L. Ed. 2d 178, 2014 U.S. LEXIS 3424 (U.S. 2014).

After an appellate court reversed defendant’s drug possession conviction by finding that the trial court should have granted defendant’s suppression motion because the magistrate who issued the search warrant lacked a substantial basis for concluding that probable cause existed and because the probable cause determination was based upon false and/or omitted information, the state supreme court held that there there was no showing that the investigator intentionally misrepresented facts or made them in reckless disregard for the truth; the investigator described the confidential informant (CI) who provided information about defendant’s activities as reliable in the past because he knew him to be a reliable CI used by the police department on occasion, and he was able to independently corroborate the CI’s reliability when a controlled buy resulted in defendant selling cocaine to the CI. The investigator’s omission of the fact that there was a controlled buy the day before did not constitute a reckless disregard for the truth, and the omission was adequately explained by the investigator, who testified that he was protecting the identity of the CI; as such, the warrant was supported by adequate probable cause. Roach v. State, 7 So.3d 911, 2009 Miss. LEXIS 199 (Miss.), cert. denied, 558 U.S. 949, 130 S. Ct. 399, 175 L. Ed. 2d 274, 2009 U.S. LEXIS 7474 (U.S. 2009).

Search warrant was supported by probable cause because an officer personally observed a drug transaction and subsequently took a statement that the buyer regularly purchased cocaine from the pool hall; that information supported the prior anonymous statements that defendant kept and sold cocaine at the pool hall. Phinizee v. State, 983 So. 2d 322, 2007 Miss. App. LEXIS 631 (Miss. Ct. App. 2007).

Although defendant’s motion to suppress items found in his house should have been granted because the issuing justice had not been presented with a basis of reliability for the informer’s statement on which the officers relied, the Miss. Code Ann. §41-29-313(1)(a)(i) conviction was not reversed because the evidence that ended in defendant’s conviction did not come from defendant’s house but from the search of other property on which a clandestine methamphetamine lab was found and the search of that property was not dependent on the search warrant issued for defendant’s house. Roebuck v. State, 2005 Miss. App. LEXIS 167 (Miss. Ct. App. Mar. 8, 2005), sub. op., op. withdrawn, 915 So. 2d 1132, 2005 Miss. App. LEXIS 1006 (Miss. Ct. App. 2005).

Search warrant affidavit was detailed, the confidential informant was an eyewitness to illegal acts and had a reliable track record, and the magistrate proceeded on more than mere suspicion in issuing the warrant; there was no merit to defendant’s argument that under the given facts the warrant was fatally defective because of inadequate probable cause, and the trial court did not err in admitting the evidence obtained from the search of defendant’s residence. Flake v. State, 948 So. 2d 493, 2007 Miss. App. LEXIS 47 (Miss. Ct. App. 2007).

Where an appellate court held that a motion to suppress should have been granted, it did not find fault due to the lack of the word “reliable” in the affidavit or underlying facts and circumstances but because nothing in the record suggested that the officers presented the justice with any basis for relying on the informer’s statement. Roebuck v. State, 2005 Miss. App. LEXIS 167 (Miss. Ct. App. Mar. 8, 2005), sub. op., op. withdrawn, 915 So. 2d 1132, 2005 Miss. App. LEXIS 1006 (Miss. Ct. App. 2005).

In a drug case, there was sufficient probable cause for the issuance of a search warrant under the “totality of the circumstances” test where the evidence showed that police had received tips about a methamphetamine laboratory hidden behind a tarp underneath a trailer; the informant was well-known to police, and the information presented to the magistrate contained specific details. Kerns v. State, 923 So. 2d 210, 2005 Miss. App. LEXIS 243 (Miss. Ct. App.), aff'd in part and rev'd in part, 923 So. 2d 196, 2005 Miss. LEXIS 799 (Miss. 2005).

Through Miss. Unif. Cir. & County Ct. Prac. R. 6.03, Mississippi has provided a procedure for a fair and reliable determination of probable cause by a judicial officer promptly after arrest. If the procedure of Rule 6.03 is followed, the U.S. Const. amend IV and Miss. Const. art. 3, § 23, rights of the accused are protected; however, the converse does not necessarily follow: failure to follow the exact procedure of Rule 6.03 does not necessarily result in a Fourth Amendment or Article 3 violation. Lawrence v. State, 869 So. 2d 353, 2003 Miss. LEXIS 296 (Miss. 2003), cert. denied, 540 U.S. 1164, 124 S. Ct. 1178, 157 L. Ed. 2d 1211, 2004 U.S. LEXIS 892 (U.S. 2004).

Probable cause for the issuance of a warrant to search the defendant’s residence was established where (1) the magistrate was informed by the police that an undercover drug operation had occurred that day and that the defendant had been arrested for the sale of $ 220 worth of cocaine, (2) an informant had set up the buy by calling the defendant at his residence, and the police suspected the origin of the cocaine was indeed his residence, and (3) the residence had been under surveillance as a drug distribution center due to complaints of anonymous neighbors. Donerson v. State, 812 So. 2d 1081, 2001 Miss. App. LEXIS 118 (Miss. Ct. App. 2001).

Probable cause existed for the issuance of a search warrant where information from a reliable source that had proven to be reliable in the past stated that within the “last forty-eight hours numerous drug transactions are occurring” at the defendant’s address. Buggs v. State, 738 So. 2d 1253, 1999 Miss. App. LEXIS 184 (Miss. Ct. App. 1999).

Probable cause existed for a warrant to issue for a search of the defendant’s residence for illicit drugs since the officer who obtained the warrant did not rely solely on unsubstantiated hearsay relayed to him by another officer but, instead, questioned the other officer’s informant, and then undertook to independently verify the accuracy of the informant’s representations by having him make what appeared to be an actual purchase of drugs at the defendant’s residence. Jones v. State, 724 So. 2d 1066, 1998 Miss. App. LEXIS 997 (Miss. Ct. App. 1998).

Probable cause supported the issuance of a search warrant for the defendant’s home where (1) in the course of the investigation of the arson of a vacant home, officers discovered a trail leading through the woods from the burned home to the defendant’s home and also discovered marijuana plants growing along the path, and (2) although the marijuana was on the property on which the burned home was located, that property was owned by an elderly woman, the burned home had been abandoned, and there was no evidence that the elderly woman frequented the trail. Jones v. State, 724 So. 2d 427, 1998 Miss. App. LEXIS 975 (Miss. Ct. App. 1998).

Probable cause did not exist for issuance of warrant to search defendant’s motel room based on information that defendant was present, with others, when drugs were purchased by confidential source, that defendant was present when police officers executed other warrant which yielded 4 grams of cocaine, and that officers found on defendant’s person large amount of money and motel room key. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

A warrant to search a murder suspect’s trailer was supported by sufficient probable cause, in spite of his argument that no facts were provided to the judge to support an inference that evidence of the crime would be in the trailer, where the crime involved the theft of cash, clothing, guns and other items likely to be kept at a suspect’s residence. Davis v. State, 660 So. 2d 1228, 1995 Miss. LEXIS 287 (Miss. 1995), cert. denied, 517 U.S. 1192, 116 S. Ct. 1684, 134 L. Ed. 2d 785, 1996 U.S. LEXIS 3101 (U.S. 1996).

Probable cause existed for the issuance of a search warrant for a defendant’s residence, in spite of the defendants’ argument that an informant’s personal observation of marijuana at the residence 2 weeks earlier was stale and too remote, where 2 narcotics agents saw a sale of marijuana, which came from one of the defendants and from the house in question on the day of the search. Williams v. State, 583 So. 2d 620, 1991 Miss. LEXIS 396 (Miss. 1991).

In determining whether probable cause existed for a particular search or search warrant, judges must scrupulously examine the facts in each case, make a careful evaluation, and make a determination in their own best judgment. Probable cause is not what some officer thought, and not some conduct that was simply unusual or that simply roused the suspicion that illegal activity could be afoot, when there was at the same time just as likely a possibility that nothing at all illegal was transpiring. Rather, it must be information reasonably leading an officer to believe that, then and there, contraband or evidence material to a criminal investigation would be found. Rooks v. State, 529 So. 2d 546, 1988 Miss. LEXIS 232 (Miss. 1988).

Where available information shows only that a crime has been committed and that a particular person has committed it, there is probable cause only for the issuance of an arrest warrant. The mere fact that a person committed a crime does not necessarily mean that there is probable cause to search that person’s dwelling for evidence of that crime. Carney v. State, 525 So. 2d 776, 1988 Miss. LEXIS 175 (Miss. 1988).

Affidavit and facts established substantial basis for judge’s determination that probable cause to issue warrant existed where judge testified that after swearing in officers, he based his probable cause determination on written affidavit and officers and investigator testified that they were sworn in by judge and provided him with oral statements in addition to written affidavit. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Probable cause did exist to obtain search warrant for defendant’s residence where officer who served as affiant for warrants testified that state had composite drawing of man who used victim’s credit cards, number of truck license tag registered to defendant was listed on credit card purchase receipt, authorities had observed truck in defendant’s yard whose tag number was used in purchase, and officer who identified defendant from composite prepared photographic lineup from which merchant identified defendant as man using victim’s credit card to make purchases day following victim’s murder. Lutes v. State, 517 So. 2d 541, 1987 Miss. LEXIS 2931 (Miss. 1987).

Defendant was not entitled to have evidence suppressed where the affidavit for the warrant under which the search was conducted supplied the issuing magistrate with a substantial basis to conclude that there was a fair probability that contraband could be found in the vehicle to be searched. Harper v. State, 485 So. 2d 1064, 1986 Miss. LEXIS 2777 (Miss. 1986).

Under the Fourth Amendment, a police dispatcher, working as a desk sergeant, was not sufficiently severed from the activities of law enforcement nor independent of the police and prosecution so as to be considered a neutral and detached magistrate; however, where the defendant was already the subject of a valid arrest warrant by Florida authorities on a completely separate charge, the invalidity of the arrest warrant was irrelevant. Lockett v. State, 459 So. 2d 246, 1984 Miss. LEXIS 1930 (Miss. 1984).

Although officers who executed the affidavit for a search warrant had not been previously acquainted, either personally or officially, with defendant’s neighbor who supplied the information as to marijuana plants growing on defendant’s property, and had no previous experience as to his reliability based on former tips, or otherwise, inasmuch as the informant was an eyewitness to the growing of the marijuana, which he had observed simply by looking across the imaginary line separating his property from defendant’s property, and inasmuch as his statements with respect to it were supported and borne out when he took several other plants to the police where it was identified by them as being marijuana, the information in the hands of the officers was ample, and was sufficiently set out in detail in the affidavit, to justify a finding of probable cause and the issuance of a warrant. Wolf v. State, 281 So. 2d 445, 1973 Miss. LEXIS 1497 (Miss. 1973).

In determining whether probable cause existed for the issuance of a search warrant the standards imposed by the US Supreme Court must be applied by state courts. O'Bean v. State, 184 So. 2d 635, 1966 Miss. LEXIS 1478 (Miss. 1966).

Under this amendment the officer who issues the search warrant must have before him the facts which justify a finding of probable cause, so that a search warrant issued upon reason to believe and belief would not be sufficient. Armstrong v. State, 195 Miss. 300, 15 So. 2d 438, 1943 Miss. LEXIS 155 (Miss. 1943).

25. – Guilty plea in absence of search warrant.

Where the inmate claimed in a postconviction appeal that the inmate’s arrest was illegal under U.S. Const. Amend. IV and Miss. Const. Art. III, § 23 for lack of a warrant or probable cause, the inmate waived the argument by entering a guilty plea. Battaya v. State, 861 So. 2d 364, 2003 Miss. App. LEXIS 1201 (Miss. Ct. App. 2003).

26. –Totality of circumstances, search warrant.

Given that a confidential informant (CI) provided reliable information on the same day that the search warrant was issued and that the CI had given reliable information in the past, the information supporting the search warrants was sufficiently reliable; under a totality-of-the-circumstances review, it was evident that there was a substantial basis for the magistrate’s determination that the search warrant’s language concerning ‘‘stolen items’’ was supported by sufficiently reliable information. Sutton v. State, 238 So.3d 1150, 2018 Miss. LEXIS 128 (Miss. 2018).

Court rejected defendant’s claim that he was subjected to an illegal search and seizure, and that the confidential informant was not sufficiently reliable to establish probable cause for a search warrant as required under the Fourth Amendment, because the test for probable cause in Mississippi is the totality of the circumstances and defendant admitted to the undercover officer that he had drug paraphernalia in his home, which was sufficient to give the officer probable cause to believe that defendant had and was committing a crime and to place him under arrest. Also, the informant’s reliability was confirmed by a recording of the informant’s telephone conversations with defendant. Passman v. State, 937 So. 2d 17, 2006 Miss. App. LEXIS 89 (Miss. Ct. App.), cert. denied, 936 So. 2d 367, 2006 Miss. LEXIS 482 (Miss. 2006), cert. denied, 549 U.S. 1324, 127 S. Ct. 1914, 167 L. Ed. 2d 570, 2007 U.S. LEXIS 3842 (U.S. 2007).

Although defendant was not given an initial appearance until six days after his arrest, which violated Miss. Unif. Cir. & County Ct. Prac. R. 6.03, because defendant was not taken for his initial appearance within 48 hours of arrest, the failure to comply with Rule 6.03 did not violate defendant’s U.S. Const. amend IV or Miss. Const. Art. 3, § 23, rights because a probable cause determination was made well within the required 48-hour period, when defendant was served with an arrest warrant on the day after his arrest. Lawrence v. State, 869 So. 2d 353, 2003 Miss. LEXIS 296 (Miss. 2003), cert. denied, 540 U.S. 1164, 124 S. Ct. 1178, 157 L. Ed. 2d 1211, 2004 U.S. LEXIS 892 (U.S. 2004).

Under totality of circumstances test, written affidavit supplemented by oral testimony of police officers can, as combined, establish substantial basis for magistrate’s determination that probable cause existed for issuance of search warrant. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

In making its review of whether search warrant was issued upon probable cause, reviewing court looks both to facts and circumstances set forth in affidavit for search warrant and as well, sworn oral testimony presented to issuing magistrate. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

Totality of circumstances was sufficient to establish probable cause to issue search warrant for automobile and home, although underlying facts stated in affidavit for search warrant considered alone may not have been sufficient, where oral testimony was adduced before magistrate which, taken together with affidavit, sufficiently established that probable cause existed. Hickson v. State, 512 So. 2d 1, 1987 Miss. LEXIS 2759 (Miss. 1987).

Under totality of circumstances test, affidavit in which affiant relates substance of interview with eyewitness who observed suspect shooting into occupied building, gave description which fit that of suspect and identified automobile in presence of affiant is sufficient to enable magistrate requested to issue warrant for search of suspect’s home to make practical decision that there is fair probability that evidence of crime will be found at suspect’s residence. Walker v. State, 473 So. 2d 435, 1985 Miss. LEXIS 2186 (Miss. 1985).

Under totality of circumstances analysis, affiant may establish probable cause for issuance of search warrant on basis of information obtained by affiant from confidential informant where affidavit establishes that confidential informant has demonstrated both personal knowledge of location of evidence and declaration against informant’s interest and where affiant swears that informant has given reliable information on activity being investigated in past. Breckenridge v. State, 472 So. 2d 373, 1985 Miss. LEXIS 2449 (Miss. 1985).

Under totality of circumstances test, there is probable cause for arrest of burglary suspect where arresting officer knows that burglary has been committed about one hour earlier, it is late at night and suspect is approximately 100 to 250 yards from burglary scene, suspect is wet and covered with seed particles, and explanation of drunkenness offered by suspect is inconsistent with that of person who has been recently drinking heavily. Riddles v. State, 471 So. 2d 1234, 1985 Miss. LEXIS 2122 (Miss. 1985).

27. – Curtilage, search warrant.

The wooded area behind a trailer was not part of the curtilage of the trailer and, therefore, the defendant had no standing to contest the search of the area where (1) in order to reach the area, it was necessary to walk down a sloping path, travel through a drainage ditch, and then enter the woods, (2) there was no evidence that the wooded area was within an enclosure, (3) the area behind the trailer resembled a garbage dump, and (4) there was no testimony at the suppression hearing concerning any steps made to protect the woods behind the trailer. Jordan v. State, 728 So. 2d 1088, 1998 Miss. LEXIS 566 (Miss. 1998), cert. denied, 527 U.S. 1026, 119 S. Ct. 2375, 144 L. Ed. 2d 778, 1999 U.S. LEXIS 4276 (U.S. 1999).

A storm shed was within the “curtilage” of a residence and, therefore, within the scope of a search warrant which permitted a search of the residence where the shed was approximately 150 to 175 feet from the house, the shed was the type of building used in connection with a residence, there were only a few trees separating the house and shed, and, most importantly, the house and shed were on the same side of the fence and not separated by it. Arnett v. State, 532 So. 2d 1003, 1988 Miss. LEXIS 457 (Miss. 1988).

28. – Sufficiency of search warrant.

Search warrant failed adequately to describe the property to be seized because the description of “stolen items” was inadequate to inform the officers executing the search as to which items in a house were to be seized; there was no means to distinguish stolen items from any items that rightfully belonged in the house, and the warrant should have included a more particularized description of at least some of the property to be seized, especially since it was clear from the record it could have. Sutton v. State, 238 So.3d 1150, 2018 Miss. LEXIS 128 (Miss. 2018).

Search warrant was void and unenforceable on its face because the section of the warrant denoting the location for the search to be executed was completely blank. Moreover, the good faith exception was inapplicable to the facts of the case. State ex rel. Miss. Bureau of Narcotics v. Canada, 164 So.3d 1003, 2015 Miss. LEXIS 304 (Miss. 2015).

Defendant’s convictions for capital murder during the commission of a robbery were proper because the search warrant for the farm was based on probable cause, was sufficiently particular regarding the place to be searched, and was properly executed. At trial, through use of testimony and exhibits, the farm was described as a cluster of buildings, situated fairly close together, consisting of a metal shed, a wooden shed, an abandoned farmhouse, and an outhouse (or old chicken house); a search of any or all of these buildings was within the scope of the warrant, which authorized search of “a farm house” and “any out buildings normally associated with this residence.” Gillett v. State, 56 So.3d 469, 2010 Miss. LEXIS 337 (Miss. 2010), cert. denied, 565 U.S. 1095, 132 S. Ct. 844, 181 L. Ed. 2d 552, 2011 U.S. LEXIS 8944 (U.S. 2011).

Though the search warrant was not accompanied by the “underlying facts and circumstances” sheet, which was to contain facts supporting issuance of same, that fact alone did not render the search warrant fatally flawed where the officer’s sworn testimony was that the eyewitness (an arrested person), had given detailed information regarding the location of the residence where the drugs were being manufactured and had also stated that he had bought and supplied defendants with precursor elements; said information was furnished by an eyewitness as opposed to an informant, a credibility determination was not required, and there was probable cause to support issuance of the search warrant. Pittman v. State, 904 So. 2d 1185, 2004 Miss. App. LEXIS 1043 (Miss. Ct. App. 2004).

Where the defendant was suspected of operating a “chop shop” where stolen vehicles were brought in and either disassembled to be sold for their constituent parts or disguised so that they would not be readily identifiable, a search warrant was not overboard where it permitted the search and seizure of documents relating to the defendant’s vehicle repair and rebuilding activities conducted on his premises. Logan v. State, 773 So. 2d 338, 2000 Miss. LEXIS 267 (Miss. 2000).

In a prosecution for defrauding the Mississippi Department of Public Safety and the Mississippi Tax Commission and uttering forgery arising from the defendant’s operation of a business rebuilding salvaged trucks, the Court rejected the defendant’s argument that the scope of a warrant to search his shop was too broad to meet constitutional strictures where the warrant permitted the search and seizure of documents relating to the vehicle repair and rebuilding activities conducted on the defendant’s premises; it was not necessary for the officers to know, in advance, what records, invoices, or other documents the defendant would actually have on the premises in order to obtain a warrant to search for such evidence so long as they had a reasonable basis to conclude that some such documentary evidence might be discovered on the premises, and the officers’ inability to describe with more certainty the documents that would be sought was not fatal to the warrant. Logan v. State, 2000 Miss. LEXIS 128 (Miss. May 25, 2000), op. withdrawn, sub. op., 773 So. 2d 338, 2000 Miss. LEXIS 267 (Miss. 2000).

The terms “controlled substances,” “paraphernalia,” and “guns” were sufficiently definitive to indicate which items should have been included in a search. Bryant v. State, 746 So. 2d 853, 1998 Miss. App. LEXIS 1027 (Miss. Ct. App. 1998).

The search of a one-story building, pursuant to an affidavit and search warrant for a two-story dwelling, did not violate the defendant’s constitutional rights where the officer who made the affidavit for the search warrant had driven by the defendant’s property in a rural area and thought that there was only one building–the two-story building–on the property, the defendant owned all the property but resided in the one-story building, the officers went to the unoccupied two-story building when they arrived on the property but received no answer, the defendant came to the front door of the one-story building and the officers went there and served him with the warrant, and the officers searched the one-story building and found marijuana in that building. The affidavit and search warrant sufficiently directed the officers to the defendant’s premises where they found him in his residence, executed the warrant and discovered marijuana, and therefore the trial court was not in error when it denied the defendant’s motion to suppress the evidence found in the search. Hamilton v. State, 556 So. 2d 685, 1990 Miss. LEXIS 17 (Miss.), cert. denied, 497 U.S. 1024, 110 S. Ct. 3271, 111 L. Ed. 2d 781, 1990 U.S. LEXIS 3605 (U.S. 1990).

28.5. Invalid warrant, search warrant.

Exclusionary rule applied because the evidence seized pursuant to the invalid warrant could not be purged of the primary taint of the illegal search; the warrant was so facially deficient that the executing officers could not have presumed it to be valid since they did not have any way to distinguish stolen items from property that was not stolen. Sutton v. State, 238 So.3d 1150, 2018 Miss. LEXIS 128 (Miss. 2018).

29. Execution of warrant.

A gun retrieved from the defendant’s vehicle was not subject to suppression although obtained in a search that exceeded the bounds of a search warrant where (1) as officers neared the premises to be searched, they spotted the defendant driving away in his own vehicle, (2) these officers informed the defendant that a search of his residence was imminent, and, (3) to facilitate his return to his residence, one officer accompanied the defendant in his vehicle, and (4) prior to the officer entering the defendant’s vehicle, the officers inquired whether there was anything in the vehicle they needed to know about and the defendant informed them that there was a firearm in the glove box; the weapon in the vehicle was discovered as a result of constitutionally permissible efforts by the investigating officers to protect their physical safety while temporarily detaining the defendant in the course of carrying out a search of his residence. Dees v. State, 758 So. 2d 492, 2000 Miss. App. LEXIS 222 (Miss. Ct. App. 2000).

A “no-knock” warrant was both justified and reasonable where (1) the defendant was living in a virtual fortress, (2) any announcement made by the officers would only have given him more time to destroy evidence, and (3) the defendant was a convicted felon and a previous search of the residence had produced firearms. White v. State, 746 So. 2d 953, 1999 Miss. App. LEXIS 183 (Miss. Ct. App. 1999).

30. –Return, search warrant.

In a drug case, a trial court did not err in admitting items into evidence that were not on an original search warrant inventory, but were included on the return, because any error resulting from the ministerial act of the return did not invalidate the properly issued search warrant. Kerns v. State, 923 So. 2d 210, 2005 Miss. App. LEXIS 243 (Miss. Ct. App.), aff'd in part and rev'd in part, 923 So. 2d 196, 2005 Miss. LEXIS 799 (Miss. 2005).

Return on gun warrant clearly indicating warrant was served coupled with officers’ testimony refuted testimony that marijuana warrant instead of gun warrant was served prior to its execution. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

31. Scope of search with warrant.

A police officer can, via a search warrant, compel a person to submit to a gunpowder residue test and, because the chemicals sought to be found on a person’s hand can easily and quickly be destroyed, an officer is within his rights to swab a person’s hand even over his objections. Hubbert v. State, 759 So. 2d 504, 2000 Miss. App. LEXIS 196 (Miss. Ct. App. 2000).

A search conducted at 11:30 p.m. exceeded the officer’s authority under the search warrant where the warrant authorized searches only “in the daytime”; thus, the fruits of the search were inadmissible at trial. Strange v. State, 530 So. 2d 1336, 1988 Miss. LEXIS 349 (Miss. 1988).

Search warrant providing that searching officers were to search for guns used in murder authorized officers to take reasonable actions such as looking behind wall plaque and credit cards found there were therefore lawfully seized. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

In his trial for murder of a police officer, defendant’s contention that the homicide was justifiable because he was resisting an unlawful arrest and reasonably believed himself to be in imminent danger of great bodily harm was not supported by the evidence, where the law officers had sufficient grounds to believe that fugitives for whom they had arrest warrants were located in the house in which defendant was staying and fired gas into the house only after a reasonable time had elapsed following the announcements requesting the occupants to vacate the house; failure of the occupants to exit as requested demonstrated their refusal to cooperate with the arresting officers who had identified themselves and stated their purpose, and the officers were warranted in using reasonable force and means to execute the arrest warrants. Norman v. State, 302 So. 2d 254, 1974 Miss. LEXIS 1416 (Miss. 1974), cert. denied, 421 U.S. 966, 95 S. Ct. 1956, 44 L. Ed. 2d 453, 1975 U.S. LEXIS 1588 (U.S. 1975).

Where police officer who obtained a search warrant allowing a search of defendant’s apartment, saw defendant and 2 other people driving away in defendant’s car from the house, and police officer stopped the defendant to serve the warrant and ordered the occupants out of the car, and during a “patdown” of defendant, the police officer found 3 boxes containing marijuana and upon later search of automobile found 3 additional boxes of marijuana, the search of defendant was an illegal search and the contraband obtained as a result of the illegal search was inadmissible in evidence. Keys v. State, 283 So. 2d 919, 1973 Miss. LEXIS 1235 (Miss. 1973).

Search of defendant’s parked automobile and seizure of quantity of whisky found therein were unlawful where such search and seizure took place after officers, armed with warrant to search defendant’s premises for stolen money and other chattels, failed to find anything, there being no evidence or information that the automobile was used for the transportation of liquor; and order of sale of such automobile pursuant to Code 1942 § 2618 constituted reversible error. Brooks v. Wynn, 209 Miss. 156, 46 So. 2d 97, 1950 Miss. LEXIS 374 (Miss. 1950).

32. Search without warrant – In general.

Officer constitutionally performed a Terry pat-down where the officer was pursuing an armed robbery suspect who was last seen brandishing a pistol, the officer felt an unknown bulge in defendant’s pocket, and when he asked defendant what was in it, defendant voluntarily emptied his pockets showing him money Gales v. State, 153 So.3d 632, 2014 Miss. LEXIS 501 (Miss. 2014).

It was error for a trial court to deny a defendant’s motion to suppress an investigatory stop of the vehicle defendant drove, when an informant told officers the subject of outstanding arrest warrants would be driving a similar vehicle, because the good-faith exception to the exclusionary rule did not apply as (1) an officer said the officer did not know the identity of the subject of the arrest warrants, so the officer could not reasonably execute the warrants without verifying the suspect’s identity, and (2) the officer’s misinterpretation of constitutional mandates, contradictions between the officer’s arrest report and testimony, and the officer’s failure to resolve the suspect’s identity made the exception inapplicable. Eaddy v. State, 63 So.3d 1209, 2011 Miss. LEXIS 315 (Miss. 2011).

Investigatory stop of defendant was not violative of defendant’s constitutional rights under the Fourth Amendment where a telephone call to the police officer gave the State a reasonable suspicion that justified the police in driving to defendant’s location; furthermore, the plea agreement was an independent justification for the State to detain and/or search defendant. Sweet v. State, 910 So. 2d 735, 2005 Miss. App. LEXIS 211 (Miss. Ct. App. 2005).

Court properly denied a motion to suppress where an officer testified that the bulge in defendant’s shorts was unusually large and given his erratic behavior, defensive posturing, and possession of a pocket knife, the officer believed that the bulge could be a weapon; therefore, at the time the officer proceeded to pat the bulge, the officer had not extended the search of defendant beyond what was necessary to determine whether he was armed and dangerous. In addition, the officer stated that when he touched the bulge, he could feel stems and seeds through the fabric of defendant’s shorts that he thought was marijuana, and it was immediately apparent to the officer that the bulge was marijuana. Tate v. State, 946 So. 2d 376, 2006 Miss. App. LEXIS 246 (Miss. Ct. App. 2006), cert. denied, 947 So. 2d 960, 2007 Miss. LEXIS 66 (Miss. 2007).

In a case of possession of precursor drugs with knowledge that the drugs would be used to manufacture a controlled substance, after a drug store clerk informed the police that two suspects had purchased large amounts of ephedrine/pseudoephedrine contained in over-the-counter cold medications and described their car, a be-on-the-lookout announcement was made and the officer’s investigatory stop of the driver’s car, in which defendant was a passenger, was entirely proper and the driver’s consent to search of the car relieved the officer of any need for a search warrant; thus, the admission of the evidence of the pills found was proper and did not violate defendant’s federal or state constitutional rights under U.S. Const. Amend. IV and Miss. Const. Art. 3, § 23. Burchfield v. State, 2003 Miss. App. LEXIS 660 (Miss. Ct. App. July 22, 2003), op. withdrawn, sub. op., 892 So. 2d 248, 2004 Miss. App. LEXIS 538 (Miss. Ct. App. 2004).

Where defendant was arrested for speeding and reckless driving, defendant was subject to a pat-down search at the time of the arrest, and also to a warrantless search at the place of detention, where cocaine was discovered in defendant’s shoe, as exceptions to the warrant requirement. Jackson v. State, 856 So. 2d 412, 2003 Miss. App. LEXIS 258 (Miss. Ct. App. 2003).

Mississippi Supreme Court adopts the U.S. Supreme Court’s Leon good faith exception to warrantless searches. White v. State, 842 So. 2d 565, 2003 Miss. LEXIS 166 (Miss. 2003).

Though a “telephonic search warrant” was not recognized in Mississippi, under the Leon good faith exception to warrantless searches, police officers’ good faith belief that a telephonic warrant was valid justified admission of drugs found in a search of a defendant’s apartment. White v. State, 842 So. 2d 565, 2003 Miss. LEXIS 166 (Miss. 2003).

Officers had probable cause to believe that defendant was dealing marijuana, they were attempting to prevent the destruction of evidence instead of effectuating arrest and seizure, and they reasonably believed in good faith they had a valid telephonic search warrant and were acting reasonably in the midst of exigent circumstances; thus, the trial court, even in the absence of a state statute allowing telephonic search warrants, properly upheld the search as a reasonable warrantless search. White v. State, 2002 Miss. LEXIS 311 (Miss. Oct. 24, 2002).

The warrantless search of a student’s pickup truck by school officials was not improper since there was reasonable suspicion to believe that the student had been in the parking lot drinking before class where a student reported the incident, several other students confirmed the report, and empty beer cans were found in the back of the student’s truck. Covington County v. G.W., 767 So. 2d 187, 2000 Miss. LEXIS 182 (Miss. 2000).

The inventory search of the defendant’s car after his arrest for violation of a city’s open container law was proper where (1) the defendant was found urinating next to a car with its headlights on outside an abandoned building, (2) the officers determined that the defendant was intoxicated and saw two containers of beer in the car, one of which was open, and (3) such a search was standard policy for the police department in order to decrease liability for items that could be stolen from an unattended automobile. Bolden v. State, 767 So. 2d 315, 2000 Miss. App. LEXIS 422 (Miss. Ct. App. 2000).

The testimony of the sheriff indicated that there was no valid consent on the part of the defendants since he did not advise them of their right to refuse consent, he never advised them of their Miranda rights, and he did not obtain a signed, written consent to search until the day after the search. Logan v. State, 1999 Miss. App. LEXIS 182 (Miss. Ct. App. Apr. 20, 1999), rev'd, 2000 Miss. LEXIS 128 (Miss. May 25, 2000).

A search pursuant to the defendant’s consent was proper, notwithstanding the defendant’s assertion that his arrest was without probable cause, where, prior to his arrest, the defendant stated that he did not care if a search was conducted; the subsequent arrest of the defendant, even if invalid, did not end the effectiveness of the consent. Carroll v. State, 755 So. 2d 483, 1999 Miss. App. LEXIS 111 (Miss. Ct. App. 1999).

The search of the defendant’s room in a shared mobile home could not be justified on the basis of any of the exceptions to the warrant requirement where the officers who conducted the search attempted to justify the search by the existence of a search warrant issued for the express purpose of searching for contraband possessed by the defendant’s roommate in his residence. Graves v. State, 708 So. 2d 858, 1997 Miss. LEXIS 743 (Miss. 1997).

Warrantless arrest of persons in motel room registered to person who matches description of person involved in theft of stolen vehicle parked outside room is reasonable, as is seizure of evidence found in plain view within room. Hanner v. State, 465 So. 2d 306, 1985 Miss. LEXIS 1940 (Miss. 1985).

Where marijuana plants that were seized were not actually situated upon defendant’s property, but instead were removed from neighboring land, the defendant was not in a position to complain of any irregularity or defect, if any, in the search warrant since the fruit of the search came from a search of property other than his own. Freeland v. State, 285 So. 2d 895, 1973 Miss. LEXIS 1310 (Miss. 1973).

Law enforcement officers have no authority to search the person of an individual because they may suspect that he is violating the law, or because they are desirous of physically searching the person of an individual to see if he has in his possession contraband so that he may be arrested and prosecuted. Keys v. State, 283 So. 2d 919, 1973 Miss. LEXIS 1235 (Miss. 1973).

Where the defendant, a guest at a dance at which police officers were chaperones, requested the officers to help him find his coat and authorized them to examine any coat they might find to determine whether or not it belonged to the defendant, marijuana found in the defendant’s coat when the officers searched the pockets for identifying marks or items, was not wrongfully admitted into evidence, since the officers had not been conducting a search for the purpose of discovering evidence to be used in a prosecution, but had been merely trying to help the defendant. Amos v. State, 234 So. 2d 630, 1970 Miss. LEXIS 1416 (Miss. 1970), cert. denied, 401 U.S. 942, 91 S. Ct. 945, 28 L. Ed. 2d 222, 1971 U.S. LEXIS 2985 (U.S. 1971).

Sheriff had no right to search trunk on premises, while investigating murder without a search warrant. Page v. State, 208 Miss. 347, 44 So. 2d 459, 1950 Miss. LEXIS 254 (Miss. 1950).

33. – Consent, search without warrant.

Marijuana found in defendant’s vehicle during a traffic stop was admissible because defendant consented to the search of the vehicle because when the police officer asked defendant, “Do you mind if I check it real quick before I let you go?” defendant replied, “It don’t matter.” Martin v. State, 240 So.3d 1047, 2017 Miss. LEXIS 424 (Miss. 2017), cert. denied, — U.S. —, 138 S. Ct. 2592, 201 L. Ed. 2d 307, 2018 U.S. LEXIS 3234 (U.S. 2018).

Trial court did not commit reversible error in admitting beer cans found in defendant’s car into evidence because even though the beer cans were found in the course of a warrantless search of the car, there was no Fourth Amendment violation, as the car was parked on defendant’s brother’s premises and defendant’s brother, as the renter of the premises, had sufficient authority to consent to a search of the premises; because defendant’s brother did consent to a search of his premises, the evidence collected pursuant to that consent was constitutionally acquired. Ross v. State, 954 So. 2d 968, 2007 Miss. LEXIS 235 (Miss. 2007).

Trial court did not err in denying defendant’s motion to exclude evidence taken from a car that he was driving; because defendant’s wife was the titled owner of the automobile, the police were reasonable in their belief that she possessed common authority, joint control, and mutual use over the car so as to give her the authority to consent to a search. Peters v. State, 920 So. 2d 1050, 2006 Miss. App. LEXIS 104 (Miss. Ct. App. 2006).

Defendant’s convictions for manufacture of a controlled substance and possession of a controlled substance were both proper where he validly consented to a search of his residence and premises; there was ample testimony from law enforcement officers to show that defendant had consented to the search and there was no evidence of threats or coercion by the officers in obtaining defendant’s consent to search. Clair v. State, 845 So. 2d 733, 2003 Miss. App. LEXIS 429 (Miss. Ct. App. 2003).

The fact that the defendant’s wife was not affirmatively informed by police officers of her right to decline to consent to the inspection of the defendant’s premises did not render her consent involuntary where, after she was requested to consent to an inspection of the premise, she declined to do so unless the officers agreed to remove a substantial number of the police cars parked at her residence, since the very act of attaching conditions to the consent to search and demanding compliance with the conditions before the search began was a strong indicator that she understood that she was not obligated to permit the officers to inspect the premises. Logan v. State, 2000 Miss. LEXIS 128 (Miss. May 25, 2000), op. withdrawn, sub. op., 773 So. 2d 338, 2000 Miss. LEXIS 267 (Miss. 2000).

The search and seizure of the defendant’s mobile home and the neighboring vacant house containing marijuana were valid since the defendant signed a consent to search form that contained a clause informing her of the right to refuse, and the defendant’s knowledge of the location of the marijuana and acceptance of responsibility for it demonstrated the voluntariness of the consent. Gilbreath v. State, 783 So. 2d 720, 2000 Miss. App. LEXIS 187 (Miss. Ct. App. 2000).

Consent is unnecessary when seizure follows search based on probable cause. Townsend v. State, 681 So. 2d 497, 1996 Miss. LEXIS 414 (Miss. 1996).

A defendant did not have standing to object to a search of his sister’s residence and subsequent seizure of cocaine where the defendant resided elsewhere, did not possess a key to the house, did not have permission to “have the run of the place,” and, aside from the familial relationship, was “little more than a babysitter.” Hopson v. State, 625 So. 2d 395, 1993 Miss. LEXIS 422 (Miss. 1993).

A trial court did not err in overruling a capital murder defendant’s motion to exclude certain physical evidence seized from his automobile, even though the search was conducted pursuant to consent given by the defendant’s wife who may not have had mutual use of the car, since the police were reasonable in their belief that the wife had common authority, mutual use, and joint control over the car where the wife held title to the car, she told the police she owned the car and provided them with keys, and she never indicated that the car had been in the defendant’s sole possession. Mettetal v. State, 615 So. 2d 600, 1993 Miss. LEXIS 96 (Miss. 1993).

A defendant did not have standing to object to the search of his friend’s apartment, in which he was an occasional overnight guest, where he had no key to the apartment, exercised no control over it, and was there on occasion only by the friend’s permission. Thus, stolen items which were found during a search of the apartment were admissible in the defendant’s burglary trial. White v. State, 571 So. 2d 956, 1990 Miss. LEXIS 758 (Miss. 1990).

A search pursuant to a defendant’s consent was constitutionally valid, even though the defendant, who was deaf, was not afforded an interpreter in accordance with §13-1-303(3), where the testimony of the law enforcement officers clearly indicated that the defendant understood what he was doing when he agreed to the search, the defendant was asked questions to which he gave appropriate responses, he was specifically told that he did not have to consent to the search, both the request for and the granting of the consent were done in writing, and the defendant used communicative and cognitive faculties other than hearing when he consented to the search. Shook v. State, 552 So. 2d 841, 1989 Miss. LEXIS 449 (Miss. 1989).

A defendant’s mother had the right to consent to a search of her son’s bedroom where the mother paid the rent on the home and had access to the defendant’s room. Stokes v. State, 548 So. 2d 118, 1989 Miss. LEXIS 357 (Miss. 1989), cert. denied, 493 U.S. 1029, 110 S. Ct. 742, 107 L. Ed. 2d 759, 1990 U.S. LEXIS 86 (U.S. 1990).

A trial court did not err in admitting into evidence a powdery substance, which was later identified as a by-product resulting from the manufacture of methamphetamine, found on the property near a trailer, where the owner of the trailer gave a valid consent to search the trailer, the police were validly on the property on which the trailer was located, and the powdery substance was visible from the trailer itself, thus falling under the plain view doctrine. Waldrop v. State, 544 So. 2d 834, 1989 Miss. LEXIS 281 (Miss. 1989).

Even if the defendant was the owner of land on which a trailer was located, police officers did not illegally trespass on his land in order to search the trailer, where the owner of the trailer consented to the search since police officers are allowed the right of ingress and egress onto private property. Waldrop v. State, 544 So. 2d 834, 1989 Miss. LEXIS 281 (Miss. 1989).

A defendant did not have standing to object to the search of a trailer where the true owner of the trailer consented to the search and, when the defendant was arrested, he denied ownership of the trailer. Waldrop v. State, 544 So. 2d 834, 1989 Miss. LEXIS 281 (Miss. 1989).

A second search of a defendant’s truck for blue fountain pens, after the investigator had previously conducted a valid consent search, had seen the pens in the truck, and had subsequently learned that there was a similar pen at the crime scene, was reasonable even though, after the first consent search, the defendant had been allowed to take the truck and continue his daily work activities. Woodward v. State, 533 So. 2d 418, 1988 Miss. LEXIS 492 (Miss. 1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1767, 104 L. Ed. 2d 202, 1989 U.S. LEXIS 2004 (U.S. 1989).

Warrantless search of robbery suspect’s apartment is reasonable where consent to search is given by suspect’s girlfriend who has dominion and control over apartment, and who rents apartment in her name and pays all bills, particularly where at time consent is obtained, investigating officers are unaware that suspect is person living in apartment. Hudson v. State, 475 So. 2d 156, 1985 Miss. LEXIS 2216 (Miss. 1985).

The warrantless seizure of jewelry from a son’s room by police pursuant to his father’s consent to enter did not violate the son’s Fourth Amendment rights since the son did not have exclusive dominion and control over his room and since the father was authorized to enter it and to permit anyone else to so enter. Wilcher v. State, 455 So. 2d 727, 1984 Miss. LEXIS 1797 (Miss. 1984), cert. denied, 470 U.S. 1034, 105 S. Ct. 1411, 84 L. Ed. 2d 794, 1985 U.S. LEXIS 1334 (U.S. 1985).

Warrantless search of the backyard of the house occupied by the defendant, his brother, his parents, and other family members was not unreasonable where consent to search was given by the defendant’s brother in the presence of their mother, who was, with their father, joint owner of the property. Loper v. State, 330 So. 2d 265, 1976 Miss. LEXIS 1842 (Miss. 1976).

One cannot object to the introduction into evidence against him of articles seized by a search made without a warrant, to which he consented. Pinnix v. Jones, 127 Miss. 764, 90 So. 481, 1921 Miss. LEXIS 279 (Miss. 1921).

34. – Emergency situations, search without warrant.

There was no basis to suppress evidence obtained from a second entry into defendant’s residence, as the initial search was legal as an emergency search under exigent circumstances, and the second entry into the residence was a reasonable continuation, whereupon evidence seen in plain view was seized. Crawford v. State, 192 So.3d 905, 2015 Miss. LEXIS 445 (Miss. 2015), cert. denied, — U.S. —, 136 S. Ct. 2527, 195 L. Ed. 2d 855, 2016 U.S. LEXIS 4084 (U.S. 2016).

The initial entry into the house by police officers was justified under the emergency circumstances exception to the warrant requirement where the officers had been informed that the victim was burned and lying on the bathroom floor of the house. Taylor v. State, 733 So. 2d 251, 1999 Miss. LEXIS 62 (Miss. 1999).

An emergency situation is a valid exception to the warrant requirement; the elements for the application of this exception are: (1) reasonable grounds to believe there is an emergency situation and there is an immediate need for their assistance in order to protect life and property; (2) the primary motivation for the search must not be an intent to arrest and seize the evidence; and (3) some reasonable basis, approximating probable cause, must associate the emergency with the area or place searched. Taylor v. State, 733 So. 2d 251, 1999 Miss. LEXIS 62 (Miss. 1999).

A second and third walk-through of a house were continuations of the original entry, which was justified based on information that the victim was burned and lying on the bathroom floor of the house, and, therefore, the seizure of evidence during those walk-throughs was proper where all of the evidence seized was in plain view during the first walk-through and would have seized then had not the officers been focused on their goal of locating the victim and attempting to assist her. Taylor v. State, 733 So. 2d 251, 1999 Miss. LEXIS 62 (Miss. 1999).

35. – Plain view, search without warrant.

Search was lawful under the plain view exception to the warrant requirement because the officer had the legal authority to stop defendant for running a stop sign and to approach the vehicle. In addition, the incriminating character of the black duffel bag and other items was readily apparent, as the officer was aware that those types of items were used in the recent restaurant armed robbery, and they were in plain view. Johnson v. State, 999 So. 2d 360, 2008 Miss. LEXIS 576 (Miss. 2008).

There was sufficient probable cause to search defendant’s vehicle after an accident and to seize beer in the vehicle because the smell of beer on defendant’s breath, coupled with his impaired coordination and his statement that he had consumed a good bit of alcohol earlier in the day, constituted probable cause to seize beer in plain view. Comby v. State, 901 So. 2d 1282, 2004 Miss. App. LEXIS 1153 (Miss. Ct. App. 2004), cert. denied, 901 So. 2d 1273, 2005 Miss. LEXIS 313 (Miss. 2005).

Though crack cocaine was often carried in plastic bags, and defendant’s having a plastic bag inside his pants was unusual, neither consideration creates probable cause to believe that there was cocaine in defendant’s pants. It took a look after pulling open defendant’s pants before probable cause existed. Thus, the bag and its contents were not in plain view and the searching of defendant’s pants was not justified. Anderson v. State, 864 So. 2d 948, 2003 Miss. App. LEXIS 634 (Miss. Ct. App. 2003).

Photographing a defendant’s injured hand, which was within the plain view of police officers and was incident to a lawful arrest, was not an improper search, as defendant had no more of a reasonable expectation of privacy with respect to his hand than he would have had with his handwriting. Jones v. State, 841 So. 2d 115, 2003 Miss. LEXIS 134 (Miss. 2003).

Where an officer enters a residence under an emergency situation he may seize any evidence in plain view during the course of emergency activities. Taylor v. State, 733 So. 2d 251, 1999 Miss. LEXIS 62 (Miss. 1999).

The plain view doctrine does not parley a limited search warrant into a general search warrant. Godbold v. State, 731 So. 2d 1184, 1999 Miss. LEXIS 55 (Miss. 1999).

Both the automobile and plain view exceptions permitted agents to search the defendant’s vehicle without first obtaining a warrant where they had probable cause to stop and search the vehicle on the basis of information received from a confidential informant and where an agent looked through a window and saw a bag in the rear of the vehicle which appeared to contain several large bricks of marijuana. Harper v. State, 722 So. 2d 1267, 1998 Miss. App. LEXIS 812 (Miss. Ct. App. 1998).

In a prosecution for possession of crack cocaine, the search of an automobile was not valid under the plain view exception to the search warrant requirement where the police officer entered the car to retrieve the keys, he saw an ordinary matchbox on the passenger seat and opened it to find only matches, and he then noticed another matchbox between the 2 front seats and opened it to find that it contained 9 rocks of crack cocaine; no incriminating evidence was visible at the time the officer entered the car, since the mere presence of a matchbox on the front seat of a car ordinarily cannot be termed an incriminating object in plain view. Ferrell v. State, 649 So. 2d 831, 1995 Miss. LEXIS 31 (Miss. 1995).

No constitutional rights were implicated in an officer’s seizure of illegal drugs where the drugs were found on the front porch ledge of an abandoned apartment in which the defendant had no propriety or possessory interest. The officer had probable cause to arrest and search the defendant where the officer had observed suspicious behavior by the defendant and had seized drugs which he had seen the defendant handling. Young v. State, 562 So. 2d 90, 1990 Miss. LEXIS 230 (Miss. 1990).

Where entry upon premises is lawful, contraband open to observation thereon may be seized. Williams v. State, 216 Miss. 158, 61 So. 2d 793, 1953 Miss. LEXIS 619 (Miss. 1953).

36. –Informant, search without warrant.

Investigatory stop which led to defendant’s arrest violated defendant’s constitutional right to be free from unreasonable searches and seizures because the stop was based on a tip from an anonymous caller who reported a person driving erratically in a particular vehicle and flashing what appeared to be some type of badge at other drivers, but there was a lack of sufficient indicia of reliability in the case, coupled with the police officers’ failure to corroborate the criminal activity reported. Cook v. Rankin County, 2014 Miss. LEXIS 506 (Miss. Oct. 16, 2014).

A confidential informant’s tip to a sheriff’s deputy provided probable cause to justify a stop, and therefore a subsequent search and seizure of the suspect’s property did not violate his constitutional rights, where the officer knew the informant, information supplied by the informant had been successfully used by the officer in the past, and the informant accurately told the officer that the suspect would be traveling in a certain direction on a certain road which demonstrated a special familiarity with the suspect’s affairs. Neely v. State ex rel. Tate County, 628 So. 2d 1376, 1993 Miss. LEXIS 562 (Miss. 1993).

37. –Open fields doctrine, search without warrant.

Open fields doctrine permits police officer to enter and search marijuana fields without warrant, even where fields are secluded and contain no-trespassing signs. Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214, 1984 U.S. LEXIS 55 (U.S. 1984).

38. –Fruit of poisonous tree, search without warrant.

Circuit court properly convicted defendant of selling more than two, but less than 10, grams of methamphetamine near a church because he forfeited his Fourth Amendment claim where the record neither showed the search was legal or illegal, and the mere failure to file a motion to suppress, in and of itself, could not support defendant’s claim his counsel was constitutionally ineffective. Shinstock v. State, 220 So.3d 967, 2017 Miss. LEXIS 267 (Miss. 2017).

Court erred in denying defendant’s motion to suppress evidence of steroids found in a search of his vehicle during a traffic stop because driving in the left-hand lane of a four-lane highway did not violate state law. Because the stop was not proper, the court erred in not suppressing all contraband that stemmed from the stop. Couldery v. State, 890 So. 2d 959, 2004 Miss. App. LEXIS 1155 (Miss. Ct. App. 2004).

Marijuana seized from a bundle of clothes which the defendant was carrying from her motel room constituted “fruit of the poisonous tree” and was therefore inadmissible, where an unlawful warrantless search of the motel room lead officers to set up a surveillance, during which the defendant exited the motel room with bundles of clothing from which the marijuana was seized. Marshall v. State, 584 So. 2d 437, 1991 Miss. LEXIS 507 (Miss. 1991).

In a prosecution for murder arising out of the deaths of two people during a fire in a house owned by the defendant’s brother-in-law, the conviction would be reversed and the case remanded for a new trial where the trial court erred in admitting into evidence a written inculpatory statement made by the defendant after he had been arrested by the police where there was no evidence to establish probable cause for the arrest and where no event or combination of events transpired to sever the connection or stream of closely related events between his illegal detention and the written statement which was given two hours after an oral statement which had been ruled inadmissible by the trial court. Dycus v. State, 396 So. 2d 23, 1981 Miss. LEXIS 1980 (Miss. 1981).

39. – Inevitable discovery, search without warrant.

The discovery of a pill bottle containing crack cocaine did not fall within the inevitable discovery doctrine where (1) an officer stopped to investigate two males in the vicinity of a pick-up truck improperly stopped in a lane of traffic in a public road, (2) the officer arrested the driver of the truck for a violation of the open container law and then discovered a handgun, the handle of which was in plain view, during a search of the truck, (3) the defendant passenger was then placed in handcuffs, and (4) the pill bottle was discovered during a second search of the truck; the inevitable discovery doctrine had no application as there was no valid underlying reason for the officer to return to the truck after the driver and passenger had been secured. White v. State, 735 So. 2d 221, 1999 Miss. LEXIS 120 (Miss. 1999).

40. –Motor vehicles, search without warrant.

Marijuana found in defendant’s vehicle was admissible because a police officer observed defendant’s vehicle cross the right lane fog line once, and then again approach or “bump” the fog line, and the video evidence from the officer’s car camera did not directly contradict the officer’s testimony, so that there was sufficient evidence that the officer had probable cause to believe that defendant had driven in a careless or imprudent manner and to stop defendant’s vehicle. The officer then searched the vehicle upon smelling the odor of marijuana. Martin v. State, 240 So.3d 1047, 2017 Miss. LEXIS 424 (Miss. 2017), cert. denied, — U.S. —, 138 S. Ct. 2592, 201 L. Ed. 2d 307, 2018 U.S. LEXIS 3234 (U.S. 2018).

Marijuana found in defendant’s vehicle was admissible because a police officer, upon observing defendant’s vehicle cross the right lane fog line once and then again approach or “bump” the fog line, had sufficient probable cause to stop defendant for careless driving. Furthermore, the officer had probable cause to search the vehicle as soon as the officer smelled marijuana so that the stop was not unconstitutionally extended. Martin v. State, 240 So.3d 1047, 2017 Miss. LEXIS 424 (Miss. 2017), cert. denied, — U.S. —, 138 S. Ct. 2592, 201 L. Ed. 2d 307, 2018 U.S. LEXIS 3234 (U.S. 2018).

Marijuana found in defendant’s vehicle during traffic stop was admissible because defendant consented to search of vehicle because when police officer asked defendant, “Do you mind if I check it real quick before I let you go?” defendant replied, “It don’t matter.” Martin v. State, 240 So.3d 1047, 2017 Miss. LEXIS 424 (Miss. 2017), cert. denied, — U.S. —, 138 S. Ct. 2592, 201 L. Ed. 2d 307, 2018 U.S. LEXIS 3234 (U.S. 2018).

Defendant’s vehicle was stopped lawfully and an officer had probable cause to conduct a walk-around inspection of the vehicle because police were “looking for a vehicle as a murder weapon,” witnesses identified the victim as being with defendant, police arrested defendant on an outstanding warrant, and an officer noticed something hanging from the vehicle that was later determined to be the victim’s skin. Galloway v. State, 122 So.3d 614, 2013 Miss. LEXIS 328 (Miss. 2013), cert. denied, 572 U.S. 1134, 134 S. Ct. 2661, 189 L. Ed. 2d 209, 2014 U.S. LEXIS 3685 (U.S. 2014).

Traffic stop was reasonable where an officer determined via his radar that defendant’s speed was 69 miles per hour in a 55 mile per hour zone, and testified that he estimated the speed by following defendant; even if the officer was operating his radar incorrectly, his testimony established a reasonable belief that speeding, a traffic violation, had occurred. Freeman v. State, 121 So.3d 888, 2013 Miss. LEXIS 312 (Miss. 2013).

Defendant’s convictions for possession of cocaine with the intent to distribute and possession of cocaine were appropriate because, notwithstanding that defendant consented to the search of his vehicle, the use of narcotics-detection dogs during a stop based on probable cause was not in violation of the Fourth Amendment. Jaramillo v. State, 950 So. 2d 1104, 2007 Miss. App. LEXIS 129 (Miss. Ct. App. 2007).

Search of a vehicle was a valid inventory search where defendant was legally arrested, there was no one available to remove defendant’s vehicle from the roadside, and under such circumstances, the standard procedure was to call a wrecker to impound the vehicle and conduct an inventory search. Garrison v. State, 918 So. 2d 846, 2005 Miss. App. LEXIS 696 (Miss. Ct. App. 2005).

During a traffic stop, defendant was arrested for driving without a license, no taillights, and possession of beer by a minor; his car was searched by police. The circuit court correctly admitted evidence of marijuana found in the vehicle, because the search fit squarely into the automobile exception. Jim v. State, 911 So. 2d 658, 2005 Miss. App. LEXIS 665 (Miss. Ct. App. 2005).

Search of defendant’s vehicle fell squarely within the Fourth Amendment’s automobile exception. The facts, including finding defendant in the same type of vehicle as had just been observed in conjunction with a burglary, justified issuance of a warrant to search the vehicle, the car was readily mobile, and probable cause existed to believe it contained contraband. Roche v. State, 913 So. 2d 306, 2005 Miss. LEXIS 257 (Miss. 2005).

Officer made a valid traffic stop, smelled alcohol on defendant’s breath, and saw an open container of alcohol in his truck in plain view; he properly seized this evidence without a warrant, and as he had probable cause to search the truck for alcohol, the cocaine he found in the process of conducting that legitimate search was properly seized. McKee v. State, 878 So. 2d 232, 2004 Miss. App. LEXIS 171 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 961 (Miss. 2004).

Roadblock set up by city police department was not conducted in violation of defendant’s rights arising under Miss. Const. Art. 3, § 23; in view of the striking similarities between the Fourth Amendment and Miss. Const. Art. 3, § 23, and the lack of a history of differentiation between the two by the Mississippi Supreme Court, there was no tenable basis to accept defendant’s contention that the roadblock was unconstitutional. Sasser v. City of Richland, 850 So. 2d 206, 2003 Miss. App. LEXIS 627 (Miss. Ct. App. 2003), overruled in part, Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

In a case of possession of precursor drugs with knowledge that the drugs would be used to manufacture a controlled substance, after a drug store clerk informed the police that two suspects had purchased large amounts of ephedrine/pseudoephedrine contained in over-the-counter cold medications and described their car, a be-on-the-lookout announcement was made and the officer’s investigatory stop of the driver’s car, in which defendant was a passenger, was entirely proper and the driver’s consent to search of the car relieved the officer of any need for a search warrant; thus, the admission of the evidence of the pills found was proper and did not violate defendant’s federal or state constitutional rights under U.S. Const. Amend. IV and Miss. Const. Art. 3, § 23. Burchfield v. State, 2003 Miss. App. LEXIS 660 (Miss. Ct. App. July 22, 2003), op. withdrawn, sub. op., 892 So. 2d 248, 2004 Miss. App. LEXIS 538 (Miss. Ct. App. 2004).

The random selection of certain trucks for a walk-around inspection once they have already been stopped for weighing is constitutional. Edwards v. State, 795 So. 2d 554, 2001 Miss. App. LEXIS 241 (Miss. Ct. App. 2001).

A police officer’s practice of conducting a search whenever a driver leaves his or her vehicle during a routine traffic stop was in direct conflict with the constitutional requirement that automobile searches be conducted only when there are particular objective factors warranting the intrusion. United States v. Hunt, 253 F.3d 227, 2001 U.S. App. LEXIS 11367 (5th Cir. Miss. 2001).

Neither the initial stop of the defendant’s vehicle nor the scope of the search of the vehicle was improper where (1) two separate officers testified that the defendant was driving in excess of the posted speed limit and that they had observed him swerve off the side of the road, and (2) the officers conducted an inventory search of the vehicle after arresting the defendant on an outstanding warrant and impounding the vehicle because there was no one readily available to remove the vehicle from the roadside. Ray v. State, 798 So. 2d 579, 2001 Miss. App. LEXIS 196 (Miss. Ct. App. 2001).

The Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine. Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536, 149 L. Ed. 2d 549, 2001 U.S. LEXIS 3366 (U.S. 2001).

The prohibition of random stops of motorists does not apply to roadside truck weigh-stations and inspection checkpoints and, therefore, it was not improper for police officers to pull the defendant’s truck over at a weigh-station and ask him to come into the scale-operating office. Edwards v. State, 2001 Miss. App. LEXIS 72 (Miss. Ct. App. Feb. 20, 2001), sub. op., 795 So. 2d 554, 2001 Miss. App. LEXIS 241 (Miss. Ct. App. 2001).

The trial court did not err in not suppressing evidence seized from the defendant’s car without a warrant pursuant to the automobile exception where (1) the defendant arrived at a hospital emergency room with a coperpetrator, who had been shot, removed the coperpetrator from his car and attempted to leave, (2) the defendant’s car, however, stalled and an officer detained the defendant and transported him to the emergency room, (3) the officer returned to the defendant’s vehicle where he noticed that the trunk was partially open and in which he saw bloody money, (4) the officer then looked into the passenger compartment and observed the handle of a firearm protruding from under the driver’s seat, and (5) the officer then, without first obtaining a warrant, removed the gun from the car. Moore v. State, 2000 Miss. LEXIS 264 (Miss. Dec. 21, 2000), op. withdrawn, sub. op., 787 So. 2d 1282, 2001 Miss. LEXIS 164 (Miss. 2001).

After a traffic stop, a search of the trunk of the automobile driven by the defendant was proper, notwithstanding that the defendant refused to consent to such a search, where a police dog alerted to the trunk. Millsap v. State, 767 So. 2d 286, 2000 Miss. App. LEXIS 419 (Miss. Ct. App. 2000), cert. denied, 888 So. 2d 1177, 2004 Miss. LEXIS 1471 (Miss. 2004).

A warrantless search of a vehicle driven by the defendant was reasonable where (1) the defendant was stopped for following a vehicle too closely and changing lanes without signaling, (2) the rental agreement for the vehicle showed that the defendant was not an authorized driver and that the vehicle was overdue for return, and (3) there was a strong, overpowering odor of unburned marijuana. Blissett v. State, 754 So. 2d 1242, 2000 Miss. LEXIS 10 (Miss. 2000).

Police officer who stopped the defendant lacked probable cause or even reasonable suspicion to do so; therefore, the trial court erred in denying the defendant’s motion to suppress all evidence found inside his vehicle where the officer testified that he knew that the defendant’s driver’s license had been suspended, but it was not clear how fresh such information was. Boyd v. State, 758 So. 2d 1032, 2000 Miss. App. LEXIS 71 (Miss. Ct. App. 2000).

Search of passenger compartment of defendant’s car and of bag found therein was valid as justified by search incident to arrest and probable cause; officer had pulled defendant over for running traffic light, defendant was placed under lawful arrest for three failures to appear for traffic violations and was seated in patrol car, defendant’s request for his money bag sent officer back to vehicle, officer then smelled marijuana, giving him probable cause to search further for source of smell, and search for money bag in passenger compartment, in which defendant had been only passenger, followed immediately after arrest. Townsend v. State, 681 So. 2d 497, 1996 Miss. LEXIS 414 (Miss. 1996).

Both probable cause and exigency prong of automobile exception to warrant requirement were satisfied, despite defendant’s claim that narcotics agents should have gotten search warrant in the several hours that passed between informant’s giving defendant informant’s car and defendant’s arrest; in recorded conversations, defendant had agreed to go out-of-state and get cocaine for informant, who had allegedly made similar transactions with defendant in past, and at time vehicle was stopped, nearness of state line and ease with which defendant could have fled agents’ jurisdiction made getting search warrant impracticable. Sanders v. State, 678 So. 2d 663, 1996 Miss. LEXIS 300 (Miss. 1996).

For purposes of exigency prong of automobile exception to warrant requirement, exceptional circumstances excusing issuance of warrant are: when vehicle searched is in motion; when officers have probable cause to believe vehicle contains contraband subject to search; and when it is impracticable to secure warrant because vehicle can and may be removed from jurisdiction. Sanders v. State, 678 So. 2d 663, 1996 Miss. LEXIS 300 (Miss. 1996).

Pursuant to automobile exception to warrant requirement, evidence seized without warrant from automobile is admissible if there is probable cause and exigency. Sanders v. State, 678 So. 2d 663, 1996 Miss. LEXIS 300 (Miss. 1996).

A warrantless search of an automobile was proper, even though the vehicle had been immobilized, since the “automobile exception” to the warrant requirement “does not vanish once the car has been immobilized.” Additionally, the search was valid because the contraband had been observed in plain view inside the vehicle. The search was also lawful because it was made in connection with the inventory of an impounded vehicle, where the vehicle was in the lawful custody of the police, a police officer had information that the vehicle had been used in a shoplifting, and a search of the driver bore no fruit. Franklin v. State, 587 So. 2d 905, 1991 Miss. LEXIS 710 (Miss. 1991).

At trial of a defendant charged with possession, with intent to distribute, of more than one kilogram of marijuana, evidence obtained by a warrantless search of the trunk of an automobile which had been stopped for speeding did not require suppression where state troopers, upon approaching stopped automobile, had observed marijuana seeds and parts and had detected odor of marijuana emanating from, passenger compartment. Fleming v. State, 502 So. 2d 327, 1987 Miss. LEXIS 2336 (Miss. 1987).

Owner of automobile in which marijuana is found during warrantless search cannot argue that driver has no authority to consent to search where driver has lawful possession of car, having been given keys by owner, who requested that driver drive car and who has not asked that keys be returned. Shaw v. State, 476 So. 2d 22, 1985 Miss. LEXIS 2255 (Miss. 1985).

A passenger in an automobile had no standing to challenge the constitutionality of a search of the vehicle which uncovered a revolver found in a box in the rear compartment. Ware v. State, 410 So. 2d 1330, 1982 Miss. LEXIS 1890 (Miss. 1982).

In a prosecution for possession of marijuana with intent to deliver, the trial court erred in admitting, over defendant’s objection, evidence of the contents of a vacuum cleaner bag containing .2 of a gram of marijuana gleaned from a warrantless search of defendant’s automobile where the search was conducted while defendant was in jail and after the automobile had been seized by the officers and lodged in a public garage; since there was ample time to obtain a warrant and no probability that the automobile would be removed beyond the reach of police the rule permitting warrantless searches of vehicles was inapplicable. Fields v. State, 382 So. 2d 1098, 1980 Miss. LEXIS 1988 (Miss. 1980).

Where an automobile was itself an integral part of the evidence of a robbery committed and was seized in order to preserve it as evidence, search of the automobile without a warrant at Highway Patrol headquarters was reasonable, although not made at the scene of the arrest. Gordon v. State, 222 So. 2d 141, 1969 Miss. LEXIS 1522 (Miss. 1969).

41. –Luggage, search without warrant.

Defendant’s rights were not violated by search of luggage at airport, where he had made a trip to a marijuana “source city,” had purchased a one-way ticket, had made a long distance trip with short turn-around, had checked a suitcase that was not full, had been accompanied by persons who issued fictitious names, and had claimed luggage which a drug detecting dog had indicated contained narcotics. McCray v. State, 486 So. 2d 1247, 1986 Miss. LEXIS 2888 (Miss. 1986).

The search of defendant and his possessions at an airport violated both the Fourth Amendment to the US Constitution and Miss Const § 23, where there was no reasonable ground on which to arrest defendant, he was not under arrest at the time of the search, the federal agent conducting the search was not confronted with exigent circumstances, the defendant was not informed he had a right to refuse the search, and the search was the result of a detention and custodial interrogation of defendant in a police office during which he was not informed of his rights, and this violation tainted the search. Penick v. State, 440 So. 2d 547, 1983 Miss. LEXIS 2933 (Miss. 1983), limited, Bryant v. State, 748 So. 2d 780, 1999 Miss. App. LEXIS 232 (Miss. Ct. App. 1999).

42. –Drugs, search without warrant.

The use of an undercover narcotics agent to enter the premises and purchase cocaine without a search warrant did not violate the defendant’s Fourth Amendment rights. Bradley v. State, 562 So. 2d 1276, 1990 Miss. LEXIS 267 (Miss. 1990).

43. –Observation by police officer, search without warrant.

Court correctly concluded that defendant’s detention was legal and did not exceed what was necessary where an officer testified that although he initially stopped defendant for speeding, his observance of defendant led him to suspect that defendant had been driving under the influence of a drug. Prior to the pat down search, the officer had not completed his activities incident to the traffic stop nor allayed his reasonable suspicion that defendant had been driving under the influence of a drug. Tate v. State, 946 So. 2d 376, 2006 Miss. App. LEXIS 246 (Miss. Ct. App. 2006), cert. denied, 947 So. 2d 960, 2007 Miss. LEXIS 66 (Miss. 2007).

A defendant’s arrest for driving while intoxicated was legal, and therefore the subsequent intoxilyzer test was not tainted, even though the arresting officer did not observe the defendant driving, where the defendant admitted to the arresting officer that he had been driving an automobile which was involved in an accident, and the defendant was publicly intoxicated in the presence of the officer and others in violation of §97-29-47. Goforth v. Ridgeland, 603 So. 2d 323, 1992 Miss. LEXIS 348 (Miss. 1992).

A police officer who observed a crime in progress had probable cause to arrest the defendant, and was therefore justified in searching the defendant incident to a lawful arrest, even though the defendant was not actually arrested until after the search was completed. Ellis v. State, 573 So. 2d 724, 1990 Miss. LEXIS 797 (Miss. 1990).

A police officer made a permissible Terry stop and pat-down search of a defendant where the defendant was seen by the officer running across a road at 1:30 a.m. in a commercial area which had been the scene of previous burglaries. Nathan v. State, 552 So. 2d 99, 1989 Miss. LEXIS 470 (Miss. 1989).

The trial court erred in refusing to suppress marijuana plants seized under a void search warrant, notwithstanding the fact that the arresting officers had previously observed what appeared to be growing marijuana plants from a tract of land adjacent to defendant’s land and could then have arrested defendants for committing a felony in their presence, where no such arrest occurred prior to execution of the void warrant; contraband in “plain view” may be seized without a warrant (1) incident to a lawful arrest, or (2) incident to “hot pursuit” of a fleeing suspect, or (3) incident to a search of a stopped vehicle on probable cause or because of the mobility of the vehicle, or (4) where officers have a valid search warrant to search a given area for specific objects and in the course of the search come across contraband; the “plain view” doctrine does not eliminate the requirement that seizure of contraband discovered while in “plain view” must comply with constitutional requirements and in the absence of “exigent circumstances” must be based on a valid warrant. Isaacks v. State, 350 So. 2d 1340, 1977 Miss. LEXIS 2246 (Miss. 1977).

Where officers had sufficient facts to justify their action in stopping an automobile for investigative purposes, the arrest of the driver after the officers observed a gun in the automobile was lawful, and the evidence discovered in the subsequent search of the automobile was admissible. Singletary v. State, 318 So. 2d 873, 1975 Miss. LEXIS 1458 (Miss. 1975).

It was neither a trespass nor an unlawful search, nor was it illegal for a deputy sheriff to look into a station wagon recently occupied by three persons subsequently charged with burglary, and through the windows of the vehicle to observe and consider marks and other indicia that tended to establish that the vehicle had been used for the transportation of property allegedly stolen. Wilson v. State, 186 So. 2d 208, 1966 Miss. LEXIS 1296 (Miss. 1966).

44. – “Reasonable suspicion” under “Terry” rule.

Anonymous tip, alone, did not possess sufficient indicia of reliability to provide Mississippi Bureau of Narcotic agents with reasonable suspicion to stop a group or its individual members because they were merely acting upon information provided through an anonymous tip; however, the agents personally observed ‘‘suspicious’’ behavior as soon as they arrived on the scene, thereby establishing an independent ground for reasonable suspicion. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

Investigative stop of defendant’s vehicle violated the Fourth Amendment and Miss. Const. art. 3, § 23, where an anonymous caller reported a person driving erratically and flashing what appeared to be some type of badge at other drivers, but the officers took no action to corroborate the reported criminal activity prior to stopping defendant, and thus, the tip lacked the indicia of reliability necessary to justify an investigative stop. Cook v. State, 159 So.3d 534, 2015 Miss. LEXIS 130 (Miss. 2015).

Officer had reasonable suspicion to stop defendant where defendant was in the immediate vicinity of the crime scene soon after the robbery, he partially matched the description of one of the robbers, he appeared nervous, and he stopped when he saw the officer. Gales v. State, 153 So.3d 632, 2014 Miss. LEXIS 501 (Miss. 2014).

It was error for a trial court to deny a defendant’s motion to suppress an investigatory stop of the vehicle defendant drove because it was clear error to find that officers who stopped the vehicle were allowed to rely on arrest warrants for another person who, an informant told officers, would be driving a similar vehicle, as the officers’ observations and the informant’s information gave the officers no reasonable suspicion since the officers acted, without independent investigation, on the caller’s vague description of the car. Eaddy v. State, 63 So.3d 1209, 2011 Miss. LEXIS 315 (Miss. 2011).

It was error for a trial court to deny a defendant’s motion to suppress an investigatory stop of the vehicle defendant drove because it was clear error to find that officers who stopped the vehicle were allowed to rely on arrest warrants for another person who, an informant told officers, would be driving a similar vehicle, as (1) the subject of the warrants was not present, and (2) nothing showed the officers knew the description of the arrest warrants’ subject’s car, so, absent further independent investigation, the officers could only stop defendant to clarify defendant’s identity, but the stop exceeded this permissible scope. Eaddy v. State, 63 So.3d 1209, 2011 Miss. LEXIS 315 (Miss. 2011).

Motion to suppress evidence was properly denied in a drug case because a Terry stop did not violate U.S. Const. Amend. IV or Miss. Const. Art. III, § 23, where an officer had a reasonable suspicion that a vehicle had no tag in violation of Miss. Code Ann. §27-19-323 and Miss. Code Ann. §27-19-40, since the officer could not see a “special in-transit tag” on a tinted window. Gonzales v. State, 963 So. 2d 1138, 2007 Miss. LEXIS 496 (Miss. 2007).

Officers had reasonable suspicion to stop defendant’s vehicle because they received information from an informant that she had been purchasing marijuana from an individual she knew as “Trouble,” further investigation revealed that “Trouble” was defendant, the officers asked the informant to arrange to buy marijuana from defendant, and as defendant’s vehicle, which matched exactly the description of “Trouble’s” car given by the informant, approached the abandoned bridge, it was stopped by an officer who recognized defendant and knew that he was on probation for a prior conviction. Carlisle v. State, 936 So. 2d 415, 2006 Miss. App. LEXIS 481 (Miss. Ct. App. 2006).

Officer stopped defendant for failure to have a tag light, smelled alcohol, and then asked defendant to get in his squad car where he gave her a breath test, which she passed. Nevertheless, he kept her in his patrol car for 20 minutes until she consented to a search of her car, and the officer then conducted a pat-down search, sticking his hands in her pockets; the officer testified that defendant was nervous, that he was fearful, and that he had no cage for defendant in his patrol car, and the Mississippi Court of Appeals held the trial court erred in concluding the officer did not have a reasonable suspicion of criminal activity, or a reasonable fear for his safety, to have allowed for the pat-down search which revealed cocaine. State v. White, 918 So. 2d 763, 2005 Miss. App. LEXIS 336 (Miss. Ct. App. 2005).

Where city officer investigated defendant’s parked vehicle outside the city limits, no crime was committed in the officer’s presence or jurisdiction, and even if the officer had been authorized to do a pat-down search for weapons under Terry v. Ohio, the officer’s identification of a small “knot like nudge” was unreasonable. The continued exploration of defendant’s pockets after determining that no weapon was present amounted to the sort of evidentiary search that Terry expressly refused to authorize, and therefore, the trial court erred in failing to suppress the methamphetamine found as a result of the officer’s unlawful search. McFarlin v. State, 883 So. 2d 594, 2004 Miss. App. LEXIS 509 (Miss. Ct. App. 2004).

45. – Probable cause, search without warrant.

Because the pursuit, seizure, and ultimate arrest of defendant were legal, it necessarily followed that the additional marijuana found on his person was lawfully obtained; therefore, it was not fruit of the poisonous tree. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

Officer had probable cause to arrest defendant because he appeared nervous, was wearing light clothing on a cold night, he voluntarily showed the officer wads of money, and he matched dispatch’s description of the armed robbery suspect. Gales v. State, 153 So.3d 632, 2014 Miss. LEXIS 501 (Miss. 2014).

Search of defendant’s automobile was not illegal as the car was lawfully stopped for speeding and once he smelled marijuana, the trooper had probable cause to search the vehicle; the trooper’s legal search of the vehicle yielded the money and the Carpet Fresh spray can. Cowan v. Miss. Bureau of Narcotics, 2 So.3d 759, 2009 Miss. App. LEXIS 61 (Miss. Ct. App. 2009).

Officer had probable cause to initiate a traffic stop of defendant’s vehicle because defendant was stopped after law enforcement officials received credible information that he had purchased some precursor chemicals to manufacture a controlled substance, methamphetamine, at two different stores within a short span of time. Watts v. State, 936 So. 2d 377, 2006 Miss. App. LEXIS 111 (Miss. Ct. App.), cert. denied, 936 So. 2d 367, 2006 Miss. LEXIS 452 (Miss. 2006).

Denial of defendant’s motion to suppress 864 unit dosages of ephedrine was affirmed; police had reasonable suspicion for stopping the car in which defendant was riding as the car matched the description given by store employees after two men bought large quantities of cold medicine containing ephedrine, and the driver of the car consented to a search of the car. Burchfield v. State, 892 So. 2d 248, 2004 Miss. App. LEXIS 538 (Miss. Ct. App.), aff'd, 892 So. 2d 191, 2004 Miss. LEXIS 1346 (Miss. 2004).

Officer’s decision to investigate defendant’s reason for being parked alongside a highway was reasonable because of numerous complaints that defendant sold drugs from a parked car; moreover, drugs found inside the car were admissible because they were located when the officer was looking for a weapon. Hill v. State, 865 So. 2d 371, 2003 Miss. App. LEXIS 983 (Miss. Ct. App. 2003).

Given the fact that the defendant had committed several traffic violations, including possibly driving under the influence of alcohol and without a driver’s license, a police officer had probable cause to arrest, therefore making the “Terry search” of the defendant not only reasonable, but common procedure. Ficklin v. State, 767 So. 2d 1035, 2000 Miss. App. LEXIS 434 (Miss. Ct. App. 2000).

A police officer lawfully stopped the defendant’s motor vehicle on the basis of a tip that it was being operated in a reckless manner, notwithstanding that reckless driving is a misdemeanor and that the officer did not personally observe the vehicle being driven in a reckless manner. Floyd v. City of Crystal Springs, 749 So. 2d 110, 1999 Miss. LEXIS 362 (Miss. 1999).

Probable cause existed for the search of the defendant and the seizure of a pistol from him where (1) the city parks and recreation director observed the defendant giving chase to his girlfriend and heard someone exclaim that the defendant had a gun, (2) the city parks and recreation director then relayed this information to an officer, who proceeded to investigate, and (3) the officer viewed the defendant standing over his girlfriend in an offensive, threatening position and making a stuffing motion into the front of his pants. Bradford v. State, 743 So. 2d 421, 1999 Miss. App. LEXIS 303 (Miss. Ct. App. 1999).

Probable cause existed to search the defendant and to seize cocaine found on his person where (1) an officer stopped to ask occupants of a van if they needed assistance and, as he approached the defendant/driver, he smelled a strong odor of alcohol, (2) the officer asked the defendant to step out of the vehicle, a patdown was conducted and no weapons were found, (3) the officer then walked up to the passenger side of the van and engaged the passenger in conversation, (4) while talking to the passenger, the officer noticed a syringe lying on the floor of the van directly in front of the passenger, (5) the officer questioned the passenger about the syringe, and the passenger denied any knowledge about the syringe, and (6) the officer then asked the defendant to empty his pockets, and cocaine was found; the defendant was effectively or constructively arrested at that point he was told to empty his pockets and, therefore, the cocaine was obtained from a lawful arrest based on probable cause. Chaney v. State, 749 So. 2d 1078, 1999 Miss. App. LEXIS 304 (Miss. Ct. App. 1999).

There was probable cause for the search of the defendant where the reason a deputy stopped the defendant’s car was the fact that the defendant and his car matched the description given over the radio of a man who had just stolen a purse in a store parking lot. Pickens v. State, 1998 Miss. App. LEXIS 919 (Miss. Ct. App. Oct. 27, 1998).

Police officers had sufficient probable cause to conduct a warrantless search of an abandoned red and white automobile where (1) the officers had just received information that such a car was believed to have been involved in a robbery and murder, and one officer had also received information that two black males in a red and white car “had picked up a young lady and was trying to mess with her,” (2) that officer, who had earlier stopped the defendant brothers, stated that they were acting suspiciously, (3) when one officer drove past the defendant, as they were walking away from the red and white car, they ran away, and (4) when that officer shined his flashlight in the car, he saw the sawed-off shotgun in plain view on the back floorboard. Smith v. State, 729 So. 2d 1191, 1998 Miss. LEXIS 590 (Miss. 1998), cert. denied, 527 U.S. 1043, 119 S. Ct. 2410, 144 L. Ed. 2d 808, 1999 U.S. LEXIS 4551 (U.S. 1999).

Police radio broadcast describing rape suspect, which led officer to look for defendant, established probable cause for arrest and reasonable suspicion justifying stop of defendant’s vehicle, and validating defendant’s subsequent consent to search of vehicle, rendering rifle and flashlight recovered during vehicle search admissible. Ellis v. State, 667 So. 2d 599, 1995 Miss. LEXIS 596 (Miss. 1995).

Task of court reviewing whether search warrant was issued upon probable cause is to insure that issuing magistrate had substantial basis for concluding that probable cause existed for issuance of search warrant. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

Information necessary to establish probable cause must be information reasonably leading officer to believe that, then and there, contraband or evidence material to criminal investigation would be found. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

In determining question of probable cause for issuance of warrant, oral testimony is admissible before officer who is required to issue search warrant. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

Substantial evidence existed to support a finding that probable cause existed for a warrantless search of a defendant’s automobile where there was probable cause to obtain a warrant to search the defendant’s home, and evidence found in the home provided probable cause to believe that a murder may have been committed in the home and that the victim’s body may have been placed in the automobile for transportation. Spivey v. Mowdy, 617 So. 2d 999, 1992 Miss. LEXIS 688 (Miss. 1992).

Fourth Amendment rights of students who were arrested in nearby store were violated where firemen who detained them, after having been requested to do so by police who were responding to report of fight on or near school grounds, where firemen had not seen students leave scene and did not indicate who advised them that students had been seen at the fight; facts did not establish probable cause to pick up students. C-1 v. Horn Lake, 775 F. Supp. 940 (N.D. Miss. 1990).

Arrest without probable cause violates rights clearly established under Fourth Amendment and officer who makes such arrest is not entitled, solely as matter of law, to qualified immunity in suit brought under 42 USCS § 1983. White v. Taylor, 677 F. Supp. 882, 1988 U.S. Dist. LEXIS 808 (S.D. Miss. 1988), aff'd, 877 F.2d 971, 1989 U.S. App. LEXIS 8743 (5th Cir. Miss. 1989).

Probable cause existed for law enforcement officers to stop and search an automobile for contraband where 2 strange individuals drove to one particular area of a small town airport to which vehicles did not usually travel, an occupant got out of the automobile, walked directly to a place in the grass, picked up 2 garbage bags and put them into the trunk, the auto immediately sped off, and the individuals were observed by a reliable person with some experience in law enforcement who reported the entire activity to the sheriff. Rooks v. State, 529 So. 2d 546, 1988 Miss. LEXIS 232 (Miss. 1988).

Arrest of defendant at his home without arrest warrant was proper because it was supported by probable cause, where defendant was arrested for house burglary upon seizure from his room of 2 guns, serial numbers of which matched 2 weapons reported stolen from nearby homes, and officers had gone into his home pursuant to valid search warrant. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Showing that suspect departed bar with murder victim shortly prior to time of victim’s death and returned to bar shortly thereafter in disheveled condition and in hurry to get friends to leave is sufficient to establish probable cause for search of suspect’s home. Hester v. State, 463 So. 2d 1087, 1985 Miss. LEXIS 1896 (Miss. 1985).

Where police officers knew that two banks had been robbed by a group of three men and two women, that such a group was staying at a local motel, that two of the men at the motel fit the description of the bank robbers, and that the group at the motel was reported to be counting money, the officers were entitled to stop the automobile in which two members of the group at the motel were riding for investigative purposes, even though they did not have the level of information necessary for probable cause to arrest. Singletary v. State, 318 So. 2d 873, 1975 Miss. LEXIS 1458 (Miss. 1975).

Where defendant’s actions and demeanor in the presence of the arresting officer were indicative of drunkenness in a public place, a misdemeanor, probable cause existed for his arrest, and there was no constitutional impediment to the introduction of testimony relative to the arrest and subsequent events even though the officer’s ticket indicated the arrest was for driving under the influence. Ewing v. State, 300 So. 2d 916, 1974 Miss. LEXIS 1649 (Miss. 1974).

46. –Abandonment of property, search without warrant.

Defendant’s own acts disclosed the cigarette pack and its contents, so there was no seizure in the sense of the law when the officers examined the contents after it had been abandoned; defendant had not been seized or arrested when he threw the cigarette pack out of his driver’s side window, so there was no Fourth Amendment violation. Ray v. State, 238 So.3d 1118, 2018 Miss. LEXIS 22 (Miss. 2018).

Circuit court did not err in admitting into evidence a firearm and marijuana found in the street because defendant surrendered his Fourth Amendment protections as to those items when he abandoned them; defendant was not considered arrested under the Fourth Amendment until he was captured by the chasing Mississippi Bureau of Narcotic agents and placed into custody because he was in no way restrained during his flight, and thus, no arrest occurred within the confines of the Fourth Amendment. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

Mississippi Bureau of Narcotic agents’ decision to conduct a Terry frisk of defendant’s person was justified, and thus, defendant’s subsequent, unprovoked flight from his lawful, temporary detention provided the agents with further reasonable suspicion to pursue him, and ultimately, the probable cause necessary to effectuate an arrest. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

Because defendant voluntarily surrendered the cocaine, the circuit court did not err in ruling that it was admissible; when a suspect voluntarily discards contraband prior to arrest, the State may collect the contraband as evidence without offending the search and seizure protections of the Fourth Amendment. Sweet v. State, 910 So. 2d 735, 2005 Miss. App. LEXIS 211 (Miss. Ct. App. 2005).

Package of cocaine that a defendant threw away as he fled from a police officer who was conducting a pat-down search of defendant after stopping defendant for speeding was admissible at trial since the officer was entitled to conduct the pat-down search for his safety because of defendant’s behavior and defendant had abandoned the property. Bessent v. State, 808 So. 2d 979, 2001 Miss. App. LEXIS 358 (Miss. Ct. App. 2001), cert. denied, 537 U.S. 872, 123 S. Ct. 281, 154 L. Ed. 2d 121, 2002 U.S. LEXIS 5938 (U.S. 2002).

In a prosecution for possession of a controlled substance, cocaine which had been discarded by the defendant was not the fruit of an illegal search and seizure, and was therefore properly admitted into evidence, since the defendant was not “seized or arrested” when he discarded the drugs where the defendant did not stop when police officers ordered him to do so for the purpose of checking his identification, and he threw down the cocaine while he was walking away from the officers; the defendant was not restrained or stopped at the time he discarded the cocaine, and therefore the cocaine was abandoned and not the fruit of an unlawful seizure or arrest. Harper v. State, 635 So. 2d 864, 1994 Miss. LEXIS 201 (Miss. 1994), limited, Flowers v. State, 947 So. 2d 910, 2007 Miss. LEXIS 24 (Miss. 2007).

In a burglary prosecution, where a police officer testified that he observed the defendant throw or drop three bottles at his feet, even if the officer lacked probable cause at the time to arrest the defendant or to search him, once the bottles were abandoned by the defendant, their possession by the officers did not stem from a search, and the defendant was in no position to protest the possession on the basis of constitutional provisions as to searches. Branning v. State, 222 So. 2d 667, 1969 Miss. LEXIS 1539 (Miss. 1969).

47. – Admissibility of evidence, search without warrant.

In a case in which defendant appealed his conviction and sentence for felony driving under the influence (DUI) as a habitual offender pursuant to Miss. Code Ann. §99-19-81, he argued unsuccessfully that the trial court erred in failing to grant his pretrial motion to suppress evidence because: (1) the police chief had no authority to stop or arrest him, (2) he never committed any offense in the chief’s jurisdiction, (3) his arrest occurred when the pursuit to make the arrest began, and (4) he had not committed any felony at that time. When the police chief began his pursuit, it was not a pursuit for the purpose of making an arrest, rather, it was a pursuit to give a courtesy warning; at the time defendant was arrested at his home, he had committed the crime of felony DUI, as well as the crime of driving with a suspended license. Delker v. State, 50 So.3d 309, 2009 Miss. App. LEXIS 597 (Miss. Ct. App. 2009), aff'd, 50 So.3d 300, 2010 Miss. LEXIS 529 (Miss. 2010).

Police officer lawfully and properly stopped a vehicle with an expired tag; when defendant, the driver, consented to a search of his vehicle and where the police officer and defendant talked while waiting for another officer to appear so that the search could be conducted by two officers as required by state law, where defendant indicated that he had recently “lost” his girlfriend and his demeanor changed significantly, where the officer contacted dispatch to inquire whether the girlfriend had been injured and if authorities in southern Mississippi were searching for defendant, and where the officer learned that defendant was a person of interest in the girlfriend’s murder and placed defendant under arrest, the trial court did not err in denying defendant’s motion to suppress evidence obtained as a result of the stop because the stop was proper, the length of the detention was reasonable, and the consent to search was valid. Goff v. State, 14 So.3d 625, 2009 Miss. LEXIS 273 (Miss. 2009), cert. denied, 559 U.S. 944, 130 S. Ct. 1513, 176 L. Ed. 2d 122, 2010 U.S. LEXIS 1251 (U.S. 2010).

Though a “telephonic search warrant” was not recognized in Mississippi, under the Leon good faith exception to warrantless searches, police officers’ good faith belief that a telephonic warrant was valid justified admission of drugs found in a search of a defendant’s apartment. White v. State, 842 So. 2d 565, 2003 Miss. LEXIS 166 (Miss. 2003).

When police are properly authorized to enter a dwelling under the exigent circumstances doctrine, they are also authorized to return and take physical evidence that was in plain view during the initial search, which they could have seized at the time but for the emergency situation that allowed them to enter the dwelling in the first place.á Baker v. State, 802 So. 2d 77, 2001 Miss. LEXIS 318 (Miss. 2001).

Both out-of-court and in-court identification of defendant were properly admitted into evidence, despite defendant’s claim that but for his illegal arrest, neither identification would have occurred, where, after his illegal arrest on date of lineup, defendant had been served with, and arrested on, outstanding aggravated assault warrant, dated 2 months earlier. White v. State, 507 So. 2d 98, 1987 Miss. LEXIS 2501 (Miss. 1987).

Where hearsay evidence, received from a computer, that an automobile was stolen, was admitted without objection, the testimony was sufficient to prove that the car was stolen, rendering its search legal, and thus, defendant’s Fourth Amendment rights were not violated in a prosecution for possession of marijuana found in the stolen automobile. Burns v. State, 438 So. 2d 1347, 1983 Miss. LEXIS 2934 (Miss. 1983).

Although the stopping of a car, to “check out” the occupants and check the driver’s license, constitutes an illegal arrest in violation of the US Constitution Fourth Amendment, nevertheless the exclusionary rule does not bar evidence of a violent assault by a passenger in the car upon a police officer summoned to the aid of the arresting officer. Watkins v. State, 350 So. 2d 1384, 1977 Miss. LEXIS 2254 (Miss. 1977).

An arrest by sheriff without a warrant of a person who has committed no crime in his presence is illegal, and a search of the person is likewise illegal and the evidence obtained thereby is inadmissible. Lynch v. Lynch, 198 Miss. 479, 23 So. 2d 401, 23 So. 2d 569, 1945 Miss. LEXIS 218 (Miss. 1945).

Arrest of defendant and the search of her person by a sheriff without a warrant was illegal, and consequently evidence that he found on her person a key which fitted the lock of the door to a room in which whisky was found was inadmissible in prosecution for unlawful possession of whisky, notwithstanding that the room was in a house owned by the defendant and for which the sheriff had a proper search warrant, where the defendant lived elsewhere. Lynch v. Lynch, 198 Miss. 479, 23 So. 2d 401, 23 So. 2d 569, 1945 Miss. LEXIS 218 (Miss. 1945).

48. Search incident to arrest.

Officer’s search of defendant’s pockets and money was a proper search incident to arrest where the officer arrested defendant and immediately brought him to the crime scene, the robbery occurred around 10:00 p.m., dispatch notified officers of the crime at 10:02, and the officer stopped defendant at 10:08. Officers were still investigating the robbery, as evidenced by their presence at the scene. Gales v. State, 153 So.3d 632, 2014 Miss. LEXIS 501 (Miss. 2014).

Defendant’s convictions for capital murder during the commission of a robbery were proper because the denial of his motion to suppress his warrantless arrest and the seizures incident thereto was not clearly erroneous nor contrary to the substantial evidence before it. The trial judge was not required to make on-the-record findings of historical fact before ruling on a motion to suppress evidence; the Federal Rules of Criminal Procedure were not applicable in the case; and Kan. Stat. Ann. § 22-2401 specifically allowed for arrests based on probable cause. Gillett v. State, 56 So.3d 469, 2010 Miss. LEXIS 337 (Miss. 2010), cert. denied, 565 U.S. 1095, 132 S. Ct. 844, 181 L. Ed. 2d 552, 2011 U.S. LEXIS 8944 (U.S. 2011).

Search incident to arrest exception to the warrant requirement applied because the officers testified to seeing the black duffel bag and money from a robbery at the traffic stop in plain view in the vehicle. The officers recovered money and receipts from defendant, and when the officer arrived, he saw that defendant was wearing a tan shirt and white tennis shoes; the store’s employees had described the armed robber as wearing a tan shirt and white shoes. Johnson v. State, 999 So. 2d 360, 2008 Miss. LEXIS 576 (Miss. 2008).

Search and seizure of defendant’s truck and the cocaine contained therein were proper as incident to a lawful custodial arrest because defendant was lawfully arrested based on probable cause and the cocaine found inside his vehicle was clearly within the permissible scope of the search, i.e. a container located in the passenger compartment of the vehicle. Phinizee v. State, 983 So. 2d 322, 2007 Miss. App. LEXIS 631 (Miss. Ct. App. 2007).

The seizure of blood-stained jeans worn by the defendant did not require a search warrant and was permissible as an inventory search following the arrest of the defendant. Mitchell v. State, 792 So. 2d 192, 2001 Miss. LEXIS 76 (Miss. 2001), cert. denied, 535 U.S. 933, 122 S. Ct. 1308, 152 L. Ed. 2d 218, 2002 U.S. LEXIS 1623 (U.S. 2002).

There was no improper search where (1) an officer conducted a pat-down search of the defendant after a traffic stop, felt something in the defendant’s pocket that did not appear to be a weapon, and asked the defendant what the object was, (2) the defendant voluntarily told the officer that it was a marijuana cigarette, and (3) the officer then conducted a full search of the defendant and discovered crack cocaine; the discovery of the crack cocaine was not improper as the officer had probable cause to arrest the defendant after he volunteered that he possessed marijuana. Williams v. State, 763 So. 2d 202, 2000 Miss. App. LEXIS 236 (Miss. Ct. App. 2000).

When officer is making valid stop, and has not exceeded its parameters in dealing with defendant, any search pursuant to probable cause is valid; in determining whether probable cause existed for search, it must be information reasonably leading officer to believe that then and there contraband or evidence material to criminal investigation would be found. Townsend v. State, 681 So. 2d 497, 1996 Miss. LEXIS 414 (Miss. 1996).

Search may be made when circumstances surrounding search incident to arrest indicate probable cause, and items may be seized as a result of cursory viewing (or smelling) of area. Townsend v. State, 681 So. 2d 497, 1996 Miss. LEXIS 414 (Miss. 1996).

In a prosecution for possession of crack cocaine, the search of an automobile was not valid as a search incident to an arrest for driving with a suspended license where the police officer searched the car after the defendant had been frisked, handcuffed and placed in the back seat of the officer’s patrol car, and therefore the officer could have had no reasonable fear that the defendant might have had a weapon or could have been in a position to destroy incriminating evidence from the crime which led to his arrest. Ferrell v. State, 649 So. 2d 831, 1995 Miss. LEXIS 31 (Miss. 1995).

There are “degrees” of detainments which fall short of an arrest which requires probable cause; detainments which would become an arrest depending on the outcome of a pending investigation are permissible, though police officers do not have unlimited authority, and may not be clothed with the authority to detain where they are not diligently investigating in such a way which will resolve the matter. Haddox v. State, 636 So. 2d 1229, 1994 Miss. LEXIS 182 (Miss. 1994).

It was permissible for a police officer to stop an automobile and detain the occupants until a warrant to search the car was obtained where the officer had “staked out” the highway based on phone calls from a confidential informant who had given him reliable information in the past, the officer was familiar with the occupants of the car and the informant had given him their names, and the car make, license plate, and ownership of the car were confirmed by the officer before he pulled the car over. Haddox v. State, 636 So. 2d 1229, 1994 Miss. LEXIS 182 (Miss. 1994).

The search of a defendant’s person incident to his arrest for carrying a concealed weapon was reasonable within the confines of the Fourth Amendment, even though the search took place after the defendant was taken to the county jail rather than at the time and place of the arrest; thus, the defendant’s attorney was not deficient in failing to move to suppress the evidence obtained as a result of this search on the ground that the search was illegal. Rankin v. State, 636 So. 2d 652, 1994 Miss. LEXIS 133 (Miss. 1994).

The search of a defendant’s jacket incident to his arrest for carrying a concealed weapon was reasonable within the meaning of the Fourth Amendment where the arresting officers saw the defendant take the jacket off and place it on a guard rail beside him, since the jacket was in the area within the defendant’s immediate control at the time of his arrest; thus, the defendant’s attorney was not deficient in failing to move to suppress the evidence obtained as a result of this search on the ground that the search was illegal. Rankin v. State, 636 So. 2d 652, 1994 Miss. LEXIS 133 (Miss. 1994).

In a prosecution for the sale of cocaine to an undercover police officer, the trial court did not err in admitting into evidence currency seized from the defendant when he was stopped at a traffic light since the officers had probable cause to arrest the defendant without a warrant where one of the officers had videotaped the defendant earlier the same day in a drug sale transaction with other undercover officers, and the stop of the defendant for running a red light was lawful and a subsequent consensual search produced evidence justifying an arrest. Curry v. State, 631 So. 2d 806, 1994 Miss. LEXIS 81 (Miss. 1994).

The warrantless seizure of a defendant’s tennis shoes did not violate his constitutional rights where the shoes were removed at the sheriff department’s request pursuant to a valid arrest which was based on probable cause, since law enforcement officials may seize personal effects and clothing from one who has been arrested. Shell v. State, 554 So. 2d 887, 1989 Miss. LEXIS 492 (Miss. 1989), rev'd, in part, 498 U.S. 1, 111 S. Ct. 313, 112 L. Ed. 2d 1, 1990 U.S. LEXIS 5501 (U.S. 1990).

In prosecution for possession with intent to distribute marijuana, marijuana introduced in evidence was admissible as seized incident to lawful arrest of defendant, even though arrest was made without warrant, where information from confidential informant and from previous anonymous telephone callers, as well as observation of defendant, gave officer probable cause to make arrest. Alexander v. State, 503 So. 2d 235, 1987 Miss. LEXIS 2359 (Miss. 1987).

In a prosecution for burglary items from a recent burglary which were seized from defendant’s trunk were properly admitted, where such evidence was obtained pursuant to an inventory search of defendant’s borrowed automobile shortly after his arrest for public drunkenness, where the search of the vehicle took place while the vehicle was still located at the scene of the accident, and where such search was conducted pursuant to routine police procedure. Robinson v. State, 418 So. 2d 749, 1982 Miss. LEXIS 1863 (Miss. 1982).

In a prosecution for possession of marijuana and phencyclidine, the trial court properly admitted into evidence the drugs found by a police officer in the console located between the driver and the passenger seats in the defendant’s car where the defendant and his passenger had been lawfully arrested for illegal possession of beer and drug paraphernalia when the police officer had removed them from the vehicle and conducted a search of the passenger compartment without a warrant. Horton v. State, 408 So. 2d 1197, 1982 Miss. LEXIS 1850 (Miss. 1982).

The temporary detention of a defendant for fingerprinting in the course of an investigation without his being booked, charged, or incarcerated did not constitute an arrest, and evidence derived therefrom was not inadmissible at the defendant’s trial on charges of burglary and assault and battery with intent to kill. Reeves v. Reeves, 210 So. 2d 780, 1968 Miss. LEXIS 1521 (Miss. 1968).

49. Review.

A search and seizure question was preserved for review by the Supreme Court, even though the defendant did not use the term “Fourth Amendment” or “Section 23” at the initial suppression hearing, where there was no doubt that the defendant was seeking protection of his right to be free from unreasonable searches and seizures as guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article 3, § 23 of the Mississippi Constitution. Longstreet v. State, 592 So. 2d 16, 1991 Miss. LEXIS 840 (Miss. 1991).

50. Surveillance or use of informant’s tip.

Where defendant was charged with possession of “precursors” used in the illegal manufacture of controlled substances, having purchased or having attempted to purchase quantities of the subject common cold medication, the anonymous tip information given to the officer who conducted the investigatory stop included the color of the van, the number and race of occupants, the license plate number and the direction of travel, including the name of the street. All of those details were verified by officer prior to the investigatory questioning, and under the totality of the evidence standard, the investigatory stop based on the anonymous tip was lawful. Williamson v. State, 876 So. 2d 353, 2004 Miss. LEXIS 799 (Miss. 2004).

51. Confrontation of witnesses – In general.

52. – Hearsay evidence, confrontation of witnesses.

Under Miss. R. Evid. 803(d)(2)(E), any statements made between coconspirators in the furtherance of a conspiracy had the necessary guarantee of trustworthiness the court required to address the right to confrontation. Bush v. State, 895 So. 2d 836, 2005 Miss. LEXIS 93 (Miss. 2005).

53. Seizure – Temporary detention.

Personal observation by agents of an individual within a group of interest acting suspiciously, plus, upon further investigation, the discovery of marijuana on at least three of the individuals within the group, verified information received in an anonymous tip and justified the temporary detention of the remaining individuals in the group for purposes of investigating possible criminal behavior. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

54. - Lawful detention under “Terry” rule, temporary detention.

Scope of investigatory stop was not exceeded by Mississippi Bureau of Narcotic agents’ conduct because the agents discovered a firearm, and thus, they were justified in their decision to conduct a Terry frisk of defendant person in order to determine whether he possessed a weapon that could be used to assault the agents. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

Mississippi Bureau of Narcotic agents’ decision to conduct a Terry frisk of defendant’s person was justified, and thus, defendant’s subsequent, unprovoked flight from his lawful, temporary detention provided the agents with further reasonable suspicion to pursue him, and ultimately, the probable cause necessary to effectuate an arrest. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

Because defendant had been lawfully detained on grounds of reasonable suspicion, his flight provided Mississippi Bureau of Narcotic agents with justification to pursue him; whether defendant had been frisked prior to his flight, he was up to that point lawfully detained under Terry and temporarily not free to leave, but his unprovoked flight was a consummate act of evasion, designed to prevent his further detention and carried out by his desire to avoid jail. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

55. — Stop versus arrest, seizure.

Mississippi Bureau of Narcotic agents’ investigatory stop was lawful under Terry, both at its inception and in its scope, because the agents were entitled to conduct a carefully limited search of the outer clothing of defendant in an attempt to discover weapons that could be used to assault them; defendant was not under arrest because he was not physically placed under arrest and did not personally submit to any show of authority. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

56. Flight; attempt to evade police.

Circuit court did not err in admitting into evidence a firearm and marijuana found in the street because defendant surrendered his Fourth Amendment protections as to those items when he abandoned them; defendant was not considered arrested under the Fourth Amendment until he was captured by the chasing Mississippi Bureau of Narcotic agents and placed into custody because he was in no way restrained during his flight, and thus, no arrest occurred within the confines of the Fourth Amendment. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

Because the pursuit, seizure, and ultimate arrest of defendant were legal, it necessarily followed that the additional marijuana found on his person was lawfully obtained; therefore, it was not fruit of the poisonous tree. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

Cited in

Busick v. State, 906 So. 2d 846, 2005 Miss. App. LEXIS 57 (Miss. Ct. App. 2005).

Amendment V Grand jury indictment for capital crimes; double jeopardy; self-incrimination; due process of law; just compensation for property

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Cross References —

Constitutional right to be informed of nature and cause of accusation, generally, see Amendment VI.

Deprivation of due process by state, see Amendment XIV, § 1.

ATTORNEY GENERAL OPINIONS

Revocation of probation or parole because a person has been charged with another crime, whether or not he is subsequently convicted of the charged offense, does not constitute double jeopardy. 2001 Miss. Op. Att'y Gen. 175.

RESEARCH REFERENCES

ALR.

Privilege against self-incrimination as applicable to testimony that one has been compelled to give in another jurisdiction. 154 A.L.R. 994.

Damage to private property caused by negligence of governmental agents as “taking,” “damage,” or “use” for public purposes, in constitutional sense. 2 A.L.R.2d 607.

Restrictive covenants, conditions, or agreements, in respect of real property discriminating against persons on account of race, color, or religion. 3 A.L.R.2d 466.

Due process of law; provision forbidding making membership in labor organization a condition to employment. 6 A.L.R.2d 492.

Validity of statutory classifications based on population–jury selection statutes. 97 A.L.R.3d 434.

Double jeopardy as bar to retrial after grant of defendant’s motion for mistrial. 98 A.L.R.3d 997.

Propriety of requiring criminal defendant to exhibit self, or perform physical act, or participate in demonstration, during trial and in presence of jury. 3 A.L.R.4th 374.

Applicability of double jeopardy to juvenile court proceedings. 5 A.L.R.4th 234.

Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts–modern view. 6 A.L.R.4th 802.

Mental subnormality of accused as affecting voluntariness or admissibility of confession. 8 A.L.R.4th 16.

Assemblage or plottage as factor affecting value in eminent domain proceedings. 8 A.L.R.4th 1202.

Concern for possible victim (rescue doctrine) as justifying violation of Miranda requirements. 9 A.L.R.4th 595.

Sex discrimination in treatment of jail or prison inmates. 12 A.L.R.4th 1219.

Retrial on greater offense following reversal of plea-based conviction of lesser offense. 14 A.L.R.4th 970.

Right of jailed or imprisoned parent to visit from minor child. 15 A.L.R.4th 1234.

Extent and determination of attorney’s right or privilege against self-incrimination in disbarment or other disciplinary proceedings–post-Spevack cases. 30 A.L.R.4th 243.

Eminent domain: measure and elements of damages or compensation for condemnation of public transportation system. 35 A.L.R.4th 1263.

Former jeopardy as bar to retrial of criminal defendant after original trial court’s sua sponte declaration of a mistrial–state cases. 40 A.L.R.4th 741.

Admissibility, in criminal case, of physical evidence obtained without consent by surgical removal from person’s body. 41 A.L.R.4th 60.

Propriety of use of multiple juries at joint trial of multiple defendants in state criminal prosecutions. 41 A.L.R.4th 1189.

Seizure of property as evidence in criminal prosecution or investigation as compensable taking. 44 A.L.R.4th 366.

Limitations on state prosecuting attorney’s discretion to initiate prosecution by indictment or by information. 44 A.L.R.4th 401.

Eminent domain: unity or contiguity of separate properties sufficient to allow damages for diminished value of parcel remaining after taking of other parcel. 59 A.L.R.4th 308.

Double jeopardy: various acts of weapons violations as separate or continuing offense. 80 A.L.R.4th 631.

Failure of state prosecutor to disclose exculpatory photographic evidence as violating due process. 93 A.L.R.5th 527.

Failure of state prosecutor to disclose fingerprint evidence as violating due process. 94 A.L.R.5th 393.

Failure of state prosecutor to disclose exculpatory ballistic evidence as violating due process. 95 A.L.R.5th 611.

Sufficiency of showing that voluntariness of confession or admission was affected by alcohol or other drugs – Drugs or narcotics administered as part of medical treatment and drugs or intoxicants administered by the police. 96 A.L.R.5th 523.

Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts – Modern view. 97 A.L.R.5th 201.

Failure of state prosecutor to disclose exculpatory medical reports and tests as violating due process. 101 A.L.R.5th 187.

Failure of state prosecutor to disclose pretrial statement made by crime victim as violating due process. 102 A.L.R.5th 327.

Application of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) to state death penalty proceedings. 110 A.L.R.5th 1.

Adoption and application of “tainted” approach or “dual motivation” analysis in determining whether existence of single discriminatory reason for peremptory strike results in automatic Batson violation when neutral reasons also have been articulated. 15 A.L.R.6th 319.

Acquittal or conviction in state court as bar to federal prosecution based on same act or transaction. 18 A.L.R. Fed. 393.

What law determines just compensation when licensee of Federal Power Commission exercises power of eminent domain in federal court under § 21 of Federal Power Act (16 USCS § 814). 51 A.L.R. Fed. 929.

Propriety of court’s failure or refusal to strike direct testimony of government witness who refuses, on grounds of self-incrimination, to answer questions on cross-examination. 55 A.L.R. Fed. 742.

Delay between seizure of personal property by Federal Government and institution of proceedings for forfeiture thereof as violative of Fifth Amendment due process requirements. 69 A.L.R. Fed. 373.

Display of physical appearance or characteristic of defendant for purpose of challenging prosecution evidence as “testimony” resulting in waiver of defendant’s privilege against self-incrimination. 81 A.L.R. Fed. 892.

Application, to drug or narcotic records maintained by druggist or physician, or “required records” exception to privilege against self-incrimination. 96 A.L.R. Fed. 868.

What circumstances fall within public safety exception to general requirement, pursuant to or as aid in enforcement of federal constitution’s Fifth Amendment privilege against self-incrimination, to give Miranda warnings before conducting custodial interrogation – post-Quarles cases. 142 A.L.R. Fed. 229.

Assertion of double jeopardy defense based on sanction sought or imposed during civil or administrative proceeding initiated by Securities and Exchange Commission or national securities organization or exchange. 147 A.L.R. Fed. 585.

What constitutes reverse or majority gender discrimination against males violative of Federal Constitution or statutes – public employment cases. 153 A.L.R. Fed. 609.

Double jeopardy considerations in federal criminal cases – Supreme Court cases. 162 A.L.R. Fed. 415.

Forcible administration of antipsychotic medication to pretrial detainees – Federal cases. 188 A.L.R. Fed. 285.

Am. Jur.

1 Am. Jur. 2d, Adjoining Landowners § 35.

3A Am. Jur. 2d, Aliens and Citizens § 67.

3B Am. Jur. 2d, Aliens and Citizens §§ 1611, 1613, 1702, 1717, 1756, 1848.

3C Am. Jur. 2d, Aliens and Citizens § 2590.

4 Am. Jur. 2d, Animals § 26.

4 Am. Jur. 2d, Appellate Review § 221.

5 Am. Jur. 2d, Appellate Review § 847.

9 Am. Jur. 2d, Bankruptcy §§ 11, 18.

9A Am. Jur. 2d, Bankruptcy §§ 960, 1524, 1571.

9C Am. Jur. 2d, Bankruptcy §§ 2465, 2621.

9D Am. Jur. 2d, Bankruptcy §§ 3520, 3523.

16 Am. Jur. 2d, Constitutional Law §§ 28, 43.

16A Am Jur 2d, Constitutional Law §§ 586, 588 et seq.

21 Am Jur 2d, Criminal Law §§ 183 et seq.

26 Am Jur 2d, Eminent Domain §§ 1 et seq.

41 Am Jur Trials 349, Habeas Corpus: Pretrial Motions.

41 Am Jur Trials 383, Habeas Corpus: Pretrial Motions (double jeopardy).

42 Am. Jur. 2d, Insolvency § 3.

47 Am. Jur. 2d, Judgments §§ 570, 650.

47 Am. Jur. 2d, Jury §§ 99, 215.

48 Am. Jur. 2d, Labor and Labor Relations § 143.

54 Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices §§ 286, 476-478.

54A Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices §§ 799, 801.

61A Am. Jur. 2d, Pleading § 298. 62B Am. Jur. 2d, Process § 97.

63B Am. Jur. 2d, Product Liability § 1832.

69 Am. Jur. 2d, Securities Regulation–Federal §§ 277, 279.

70A Am. Jur. 2d, Social Security and Medicare § 2.

75 Am. Jur. 2d, Trial § 396.

2 Am. Jur. Trials, Locating and Interviewing Witnesses, p. 229.

5 Am. Jur. Trials, Pretrial Procedures in Criminal Cases, p. 27.

38 Am. Jur. Trials, Representing the Grand Jury Target Witness, p. 651.

64 Am. Jur. Trials, Asserting Claims of Unconstitutional Prison Conditions, p. 425.

89 Am. Jur. Trials, Arbitrating Securities Industry Disputes, p. 55.

92 Am. Jur. Trials, Criminal Defense: Assault and Battery Cases, p. 1.

108 Am. Jur. Trials, Arbitrating and Mediating Customer Securities Disputes at FINRA, p. 313.

56 Am. Jur. Proof of Facts 3d, Eminent Domain: Lessee’s Recovery of Compensation for Taking of Leasehold Interest, p. 419.

65 Am. Jur. Proof of Facts 3d, Governmental Liability for Injury to Landowner’s Property from Road Construction Activities on Neighboring Land, p. 311.

71 Am. Jur. Proof of Facts 3d, Eminent Domain: Proof of Lack of Reasonable Necessity for Taking of Property, p. 97.

88 Am. Jur. Proof of Facts 3d, Pleading and Proving Ineffective Assistance of Counsel in a Federal Habeas Corpus Proceeding; A Primer, p. 1.

CJS.

C.J.S. Criminal Law §§ 208-275, 877, 1464, 1523, 1575, 1576.

C.J.S. Domicile §§ 6 to 50.

C.J.S. Eminent Domain §§ 71-73, 178 to 184, 198n to 200.

C.J.S. Witnesses §§ 431-457.

Lawyers’ Edition.

Admissibility of pretrial confession in criminal case. 22 L. Ed. 2d 872.

Physical examination or exhibition of, or tests upon suspect or accused, as violating rights guaranteed by Federal Constitution. 22 L. Ed. 2d 909.

Validity, under Federal Constitution, of criminal statute or ordinance making one fact presumptive or prima facie evidence of another. 23 L. Ed. 2d 812.

Retrial de novo without any judicial determination of sufficiency of evidence at prior bench trial held not to violate double jeopardy clause. 80 L. Ed. 2d 311.

Public condemnee held entitled to no more than fair market value of condemned property under Fifth Amendment. 80 L. Ed. 2d 376.

Double jeopardy clause held to prohibit state from sentencing defendant to death after life sentence he had initially received was set aside on appeal. 81 L. Ed. 2d 164.

Prosecution on charges of murder and aggravated robbery after guilty pleas to two lesser charges had been accepted by court over state’s objection held not prohibited by double jeopardy clause. 81 L. Ed. 2d 425.

Double jeopardy clause held to bar state recovery conviction following prior state conviction for capital murder committed during robbery. 82 L. Ed. 2d 801.

Retrial of defendant held not barred by double jeopardy clause even through jury acquitted him of one count but was unable to agree as to other counts. 83 L. Ed. 2d 242.

Policy of passive enforcement of draft registration law held not to violate First or Fifth Amendments. 84 L. Ed. 2d 547.

Federal constitutional right to marry–Supreme Court cases. 96 L. Ed. 2d 716.

Supreme Court’s views as to what comments by prosecuting attorney violate accused’s privilege against self-incrimination under Federal Constitution’s Fifth Amendment.99 L. Ed. 2d 926.

Law Reviews.

1983 Mississippi Supreme Court Review: Double jeopardy. 54 Miss LJ 135, March, 1984.

1989 Mississippi Supreme Court Review: Fifth Amendment. 59 Miss L J 832, Winter, 1989.

Rubenfeld, Reading the Constitution as Spoken. 104 Yale LJ 1119 (1995).

Bufkin, Terry and Miranda: The Conflict Between the Fourth and Fifth Amendments of the United States Constitution.18 Miss. College L. R. 199, Fall, 1997.

Recent Decision: Constitutional Law–Fifth Amendment–Takings Clause–Mandatory IOLTA Program Constitutes Per Se Taking, 71 Miss. L.J. 1029, Spring, 2002.

Securing Liberty with Chains: Locking up the Fifth Amendment within the Confines of Miranda: Dickerson v. United States, 530 U.S. 428(2000), 21 Miss. C. L. Rev. 55, Fall, 2001.

Pietruszkiewicz. Of Summonses, Required Records and Artificial Entities: Liberating the IRS From Itself. 73 Miss LJ 921, Winter 2004.

Lesser Included Offenses in Mississippi, 74 Miss. L.J. 135, Fall, 2004.

JUDICIAL DECISIONS

1. Construction and application.

2. Court rules.

3. Indictment–In general.

4. –Waiver, indictment.

5. Double jeopardy – In general.

6. – Administrative proceedings, double jeopardy.

7. –Civil and criminal proceedings, double jeopardy.

8. –Juveniles, double jeopardy.

9. –Same elements, double jeopardy.

10. – Separate incidents, double jeopardy.

11. – Same episode, no double jeopardy.

12. –Lesser included offenses, double jeopardy.

13. – Conspiracy, double jeopardy.

14. –Nolle prosequi, double jeopardy.

15. –Mistrial, double jeopardy.

16. – Multiple punishments, double jeopardy.

17. –Capital sentencing, double jeopardy.

18. – Habitual offenders, double jeopardy.

19. –Reversal of conviction, double jeopardy.

20. – Resentencing, double jeopardy.

21. Self-incrimination – In general.

22. –Statutes and court rules, self-incrimination.

23. –Administrative proceedings, self-incrimination.

24. –Pro se defense of action, self-incrimination.

25. –Witnesses, self-incrimination.

26. –Transactional immunity, self-incrimination.

27. –Privilege, self-incrimination.

28. –Request for counsel, self-incrimination.

29. –Request for mental health or spiritual advisor, self-incrimination.

30. –Failure to testify generally, self-incrimination.

31. –Comment by counsel on failure to testify, self-incrimination.

32. –Comment by counsel on inconsistency of testimony, self-incrimination.

33. –Accomplices and codefendants, self-incrimination.

34. –Pre-arrest statements of defendant, self-incrimination.

35. –Statements regarding post-arrest silence, self-incrimination.

36. – Noncustodial interrogation, self-incrimination.

37. – Custodial interrogation, self-incrimination.

38. –Confessions generally, self-incrimination.

39. –Age of confessor, self-incrimination.

40. –Mental acuity of confessor, self-incrimination.

41. – Intoxication, self-incrimination.

42. –Admissions antecedent to Miranda warning, self-incrimination.

43. – Miranda warnings prior to confession, self-incrimination.

44. – Voluntariness of confession, self-incrimination.

45. –Induced confessions, self-incrimination.

46. – Coerced confession, self-incrimination.

47. –Delay in arraignment affecting voluntariness of confession, self-incrimination.

48. –Suppression of confession, self-incrimination.

49. –Guilty plea generally, self-incrimination.

50. – Voluntariness of guilty plea, self-incrimination.

51. –Videotapes, self-incrimination.

52. – Physical evidence, self-incrimination.

53. –Fingerprints, self-incrimination.

54. – Psychiatric examination, self-incrimination.

55. –Cross-examination, self-incrimination.

56. – Waiver of rights, self-incrimination.

57. Due process – In general.

58. –Statutes and court rules, due process.

59. –Local ordinances, due process.

60. –Administrative proceedings, due process.

61. –Property interests, due process.

62. –State action, due process.

63. –Juveniles, due process.

64. –Driver’s licenses, due process.

65. –Employment and job security, due process.

66. –Professional licensure, due process.

67. –Insurers, due process.

68. –Schools and school districts, due process.

69. – Zoning, due process.

70. – Taxation, due process.

71. – Governmental immunity, due process.

72. – Elections, due process.

73. – Parole and probation generally, due process.

74. –Revocation of parole and probation, due process.

75. –Treatment of incarcerated persons, due process.

76. –Jurisdiction, due process.

77. –Service of process, due process.

78. – Notice and hearing, due process.

79. –Discovery, due process.

80. –Compulsory process, due process.

81. – Rights of indigent defendant, due process.

82. – Right to counsel, due process.

83. –Judicial impartiality, due process.

84. –Jury selection, due process.

85. Trial conduct, due process.

86. Presence of accused at trial.

87. –Accomplices and co-defendants, due process.

88. –Informants, due process.

89. –Mental examination, due process.

90. –Identification of defendant, due process.

91. –Polygraph tests, due process.

92. –Habitual offenders, due process.

93. –Delay, due process.

94. –Burden of proof, due process.

95. –Instructions, due process.

96. –Review, due process.

97. Parole or probation proceedings.

98. Taking for public use.

99. Sentence and punishment – In general.

1. Construction and application.

Defendant’s conviction for burglary of a dwelling house was improper where defendant exercised his right to remain silent up until the time of the trial and the trial court committed reversible error by allowing the prosecutor to imply to the jury that defendant’s post-arrest silence was an indication that he was untruthful and, by implication, and indication that he committed the crime. Emery v. State, 869 So. 2d 405, 2004 Miss. LEXIS 322 (Miss. 2004).

In a divorce action, a former husband’s constitutional rights were not violated by a complaint alleging cruel and inhumane punishment because he was not charged with an infamous crime. Richardson v. Richardson, 856 So. 2d 426, 2003 Miss. App. LEXIS 259 (Miss. Ct. App. 2003), cert. denied, 2003 Miss. LEXIS 638 (Miss. Nov. 6, 2003).

The Fifth Amendment does not apply to a cause of action against a state or local official where the plaintiff does not allege that the official was acting under authority of the federal government. Jones v. City of Jackson, 203 F.3d 875, 2000 U.S. App. LEXIS 1992 (5th Cir. Miss. 2000).

Defendant may generally waive his Sixth Amendment right to counsel when he waives his Fifth Amendment rights. Wilcher v. State, 697 So. 2d 1087, 1997 Miss. LEXIS 100 (Miss. 1997), cert. denied, 522 U.S. 1053, 118 S. Ct. 705, 139 L. Ed. 2d 647, 1998 U.S. LEXIS 149 (U.S. 1998).

Section 47-5-112 [repealed] did not violate any “right” enjoyed by a county under the Fifth Amendment to the United States Constitution or § 17 of the Mississippi Constitution, since political subdivisions of a state have no Fifth or Fourteenth Amendment protections against the state, and § 17 of the Mississippi Constitution applies only to “private” property. State v. Hinds County Bd. of Supervisors, 635 So. 2d 839, 1994 Miss. LEXIS 163 (Miss. 1994).

2. Court rules.

Rule providing that case could not be heard or re-heard en banc unless majority of all judges in regular active service, including any who may be recused in particular case, vote that case be heard or re-heard en banc does not deny equal protection and due process. United States v. Nixon, 827 F.2d 1019 (5th Cir. Miss. 1987), cert. denied, 484 U.S. 1026, 108 S. Ct. 749, 98 L. Ed. 2d 762, 1988 U.S. LEXIS 349 (U.S. 1988).

3. Indictment–In general.

Defendant’s purported conviction for robbery was plain error because he had been indicted for burglary, not the entirely distinct crime of robbery, which was not a lesser-included offense of burglary, and a court could not make, alter, or substantively amend a felony indictment; defendant’s conviction for robbery was a plain, clear, and obvious error that violated his fundamental rights and constituted a manifest miscarriage of justice. Pace v. State, 242 So.3d 107, 2018 Miss. LEXIS 199 (Miss. 2018).

Delay of approximately one year between defendant’s arrest and the indictment did not result in a violation of due process of law because (1) the pre-indictment delay reasonably could not have been characterized as having caused the destruction of video surveillance tapes, which routinely were destroyed a mere two weeks after they were made, or the inability of a witness to recall the date when the witness had encountered defendant; and (2) obtaining DNA testing was a large part of the reason for the lengthy delay. Roberts v. State, 234 So.3d 1251, 2017 Miss. LEXIS 383 (Miss. 2017).

Aggravating circumstances used as grounds for defendant’s death sentence did not have to be included in the indictment because Apprendi did not require the inclusion of aggravating circumstances in defendant’s indictment. Corrothers v. State, 148 So.3d 278, 2014 Miss. LEXIS 311 (Miss. 2014), cert. denied, — U.S. —, 135 S. Ct. 2835, 192 L. Ed. 2d 877, 2015 U.S. LEXIS 3926 (U.S. 2015).

Defendant’s death sentence after he was convicted of capital murder, rape, and four counts of sexual battery was appropriate because an indictment was sufficient without listing aggravating circumstances; any time an individual was charged with murder, he was put on notice that the death penalty might result. Loden v. State, 971 So. 2d 548, 2007 Miss. LEXIS 558 (Miss. 2007), cert. denied, 555 U.S. 831, 129 S. Ct. 45, 172 L. Ed. 2d 51, 2008 U.S. LEXIS 6568 (U.S. 2008).

Indictment charging a person with money laundering under Miss. Code Ann. §97-23-101(1)(b)(ii)(1) was required to specify the “unlawful activity” from which the illegal proceeds were alleged to have derived, and violation of this requirement may be cured only where the prosecution demonstrated that it otherwise provided timely notice to defendant of the alleged illegal activity, and that the notice clearly and sufficiently provided defendant a fair opportunity to prepare a defense to the charges; the omission of the “specified unlawful activity” in defendant’s indictment was harmless error which did not render the trial fundamentally unfair. Tran v. State, 962 So. 2d 1237, 2007 Miss. LEXIS 475 (Miss. 2007), cert. denied, 553 U.S. 1054, 128 S. Ct. 2472, 171 L. Ed. 2d 769, 2008 U.S. LEXIS 4212 (U.S. 2008).

Denial of an inmate’s motion for leave to proceed with a petition for postconviction relief in the trial court was proper, where his indictment was not unconstitutional for the failure to include and specify the aggravating factors used to sentence him to death, since the United States Supreme Court has not ruled that State capital defendants have a constitutional right to have all aggravating circumstances listed in their indictments. Simmons v. State, 869 So. 2d 995, 2004 Miss. LEXIS 49 (Miss.), cert. denied, 543 U.S. 960, 125 S. Ct. 436, 160 L. Ed. 2d 325, 2004 U.S. LEXIS 7185 (U.S. 2004).

Defendant was properly apprised by an indictment of the nature and cause of a homicide despite the fact that the manner and method of the crime were not disclosed; the jury instructions sufficiently informed the jury that the act committed by defendant involved asphyxiation. Starns v. State, 867 So. 2d 227, 2003 Miss. LEXIS 873 (Miss. 2003).

Absent waiver, only grand jury can charge person with felony such as burglary. State v. Berryhill, 703 So. 2d 250, 1997 Miss. LEXIS 532 (Miss. 1997).

An indictment charging the defendant with rape under §97-3-65 was proper, even though the indictment used the language “a female person under the age of 14,” while the statute states, in pertinent part, “a child under the age of 14.” The indictment’s language was wholly included within the statutory language, since a female person under the age of 14 is a child under the age of 14; the indictment need not use the precise words of the statute. Furthermore, the defendant was not prejudiced in the preparation of his defense or exposed to double jeopardy by the indictment’s language. Allman v. State, 571 So. 2d 244, 1990 Miss. LEXIS 705 (Miss. 1990).

The constitutional prohibition against double jeopardy was violated where the defendant was prosecuted for 2 counts of aggravated assault arising from an automobile accident, after the defendant had been charged with and pled guilty to the misdemeanor offense of driving an automobile on the wrong side of the highway, since the defendant’s conduct in driving on the wrong side of the highway was the same conduct which the state relied upon in the felony prosecution for the assault charges. Harrelson v. State, 569 So. 2d 295, 1990 Miss. LEXIS 635 (Miss. 1990), overruled in part, Powell v. State, 806 So. 2d 1069, 2001 Miss. LEXIS 271 (Miss. 2001).

4. –Waiver, indictment.

Defendant’s guilty plea to armed robbery as charged in a criminal information rather than an indictment was proper under U.S. Const. Amend. V and Miss. Const. Art. 3, § 27, because defendant waived the indictment requirement. The trial court was not required under Miss. Unif. Cir. & Cty. R. 8.04 to discuss with defendant whether he was entitled to early release. Berry v. State, 19 So.3d 137, 2009 Miss. App. LEXIS 392 (Miss. Ct. App. 2009).

A trial court’s failure to inform a defendant, who pled guilty to possession of cocaine with intent to distribute, that a $1,000.00 fine was the minimum penalty for the crime was harmless error where the record contained the defendant’s written waiver of indictment, his petition to enter a plea of guilty, and a 12-page transcript of the circuit judge’s interrogation of the defendant before accepting the plea. Eley v. State, 631 So. 2d 787, 1994 Miss. LEXIS 79 (Miss. 1994).

5. Double jeopardy – In general.

Jury instruction on the “great risk of death” aggravator was proper because the evidence showed that defendant entered a home intending to attack the victim, and in doing so, he shot the victim’s parents and held a gun on the victim’s brother. Corrothers v. State, 148 So.3d 278, 2014 Miss. LEXIS 311 (Miss. 2014), cert. denied, — U.S. —, 135 S. Ct. 2835, 192 L. Ed. 2d 877, 2015 U.S. LEXIS 3926 (U.S. 2015).

Petitioner’s argument that he was sentenced twice for the same offense and was subjected to double jeopardy lacked merit because the petitioner was not given a second sentence, but instead, after learning that federal authorities would not allow him to serve his state and federal sentences concurrently, the circuit court simply corrected its sentencing order, which it had authority to do because the sentencing order was amended before the end of the circuit court term. Toney v. State, 906 So. 2d 28, 2004 Miss. App. LEXIS 1030 (Miss. Ct. App. 2004).

Where defendant robbed the victim, a store clerk, at gunpoint, and pistol whipped the victim numerous times, the offenses of robbery with the use of a deadly weapon, and aggravated assault, clearly required different elements of proof, and double jeopardy did not apply. Houston v. State, 887 So. 2d 808, 2004 Miss. App. LEXIS 451 (Miss. Ct. App.), cert. denied, 888 So. 2d 1177, 2004 Miss. LEXIS 1448 (Miss. 2004).

Because the offenses of possession under Miss. Code Ann. §41-29-313, and conspiracy, were considered separate criminal violations separately punishable, no double jeopardy principle was violated. Hunt v. State, 863 So. 2d 990, 2004 Miss. App. LEXIS 13 (Miss. Ct. App. 2004).

While it may be true that the language of Miss. Code Ann. §41-29-313(1)(a)(i) regarding “any amount” of the prohibited substances was primarily intended to cover situations where lesser quantities of the suspect materials were discovered and, therefore, the showing of multiple items was required to strengthen the inference of wrongful intent, it is nevertheless true that “any amount” plainly means just that – any amount; therefore, the possession of 250 – or 250,000, for that matter – dosage units of pseudoephedrine simultaneously with the possession of any one of the other prohibited substances listed in the statute constitutes a consummated violation of §41-29-313(1)(a)(i), and, if a defendant is charged, convicted, and sentenced for that violation, it would plainly constitute a double jeopardy violation to attempt to punish defendant a second time for the possession of the exact same supply of pills, simply on the basis that the quantity happened to exceed the permissible level under a separate criminal statute. Hunt v. State, 863 So. 2d 990, 2004 Miss. App. LEXIS 13 (Miss. Ct. App. 2004).

Quantity of pseudoephedrine described in count one, a violation of Miss. Code Ann. §41-29-313(1)(a)(ii), was the same quantity of the drug that was identified in count two, a violation of §41-29-313(3); this exposed defendant to multiple punishments for the same conduct, and under double jeopardy considerations, the court reversed defendant’s conviction under count two. Hunt v. State, 863 So. 2d 990, 2004 Miss. App. LEXIS 13 (Miss. Ct. App. 2004).

Because the first indictment was nolle prosequi before defendant pled guilty, defendant was not subject to double jeopardy as there was no prejudice. McKenzie v. State, 856 So. 2d 344, 2003 Miss. App. LEXIS 132 (Miss. Ct. App. 2003), cert. denied, 864 So. 2d 282, 2004 Miss. LEXIS 7 (Miss. 2004), cert. denied, 947 So. 2d 960, 2007 Miss. LEXIS 57 (Miss. 2007).

There was no double jeopardy violation in a case where DUI defendant’s two prior DUI convictions were considered for the sole purpose of enhancing punishment. Horn v. State, 825 So. 2d 725, 2002 Miss. App. LEXIS 503 (Miss. Ct. App. 2002).

The defendant in a murder prosecution was not subjected to double jeopardy when his bond on an unrelated pending charge was revoked based on the fact that there was probable cause to believe that he committed the murder at issue. Johnson v. State, 768 So. 2d 934, 2000 Miss. App. LEXIS 184 (Miss. Ct. App. 2000), cert. denied, 532 U.S. 930, 121 S. Ct. 1378, 149 L. Ed. 2d 304, 2001 U.S. LEXIS 2341 (U.S. 2001).

In the retrial of the defendant for murder, the introduction of evidence connecting the defendant to items taken from the crime scene did not twice put him in jeopardy for capital murder or robbery; although he was previously acquitted of murder during the commission of a robbery, a capital offense, and thus could not be retried for capital murder, the jury’s acquittal on the capital crime did not imply that the jury did not believe that the defendant took items from the victim’s trailer; instead, it showed only that the jury did not believe that the murder occurred during the commission of a robbery. Odom v. State, 769 So. 2d 189, 2000 Miss. App. LEXIS 160 (Miss. Ct. App. 2000).

The constitutional guarantee against double jeopardy never attached where a nolle prosequi was granted after the court had questioned the veniremen and administered their oath before turning them over to the state for voir dire, but before a jury of 12 had been selected. Meek v. State, 2000 Miss. App. LEXIS 64 (Miss. Ct. App. Feb. 8, 2000), rev'd, 2001 Miss. LEXIS 80 (Miss. Apr. 5, 2001).

Double jeopardy was not implicated where the defendant was tried for capital murder and for the same burglary that was necessary to support the capital murder offense and he eventually pled guilty to the lesser included offense of murder and to burglary of an occupied dwelling. Pinkney v. State, 2000 Miss. LEXIS 95 (Miss. Apr. 20, 2000), op. withdrawn, sub. op., 757 So. 2d 297, 2000 Miss. LEXIS 173 (Miss. 2000).

Double jeopardy protection does not apply to a hearing to revoke a suspended sentence. Cooper v. State, 737 So. 2d 1042, 1999 Miss. App. LEXIS 444 (Miss. Ct. App. 1999).

The appellant’s double jeopardy rights were violated where (1) the Supreme Court previously affirmed the appellant’s capital murder conviction and reversed and remanded for resentencing, (2) the appellant was then reindicted, and the new indictment, unlike the original indictment, charged the appellant as an habitual offender, and (3) the appellant pled guilty to capital murder as an habitual offender, and agreed to a life sentence without parole. Willie v. State, 738 So. 2d 217, 1999 Miss. LEXIS 163 (Miss. 1999).

The dual sovereignty doctrine is not applicable where the defendant is not subjected to successive prosecutions. Brown v. State, 731 So. 2d 595, 1999 Miss. LEXIS 2 (Miss. 1999).

Where the state made a good faith mistake in ordering a nolle prosequi after the first indictment, the prohibition against double jeopardy would not bar a subsequent prosecution. State v. Shumpert, 723 So. 2d 1162, 1998 Miss. LEXIS 563 (Miss. 1998).

The criminal prosecution and conviction of the defendant for conspiracy did not violate the double jeopardy clauses of the Mississippi and United States Constitutions, notwithstanding that her vehicle was forfeited to the state prior to her criminal trial, since a civil forfeiture does not impose punishment. Smith v. State, 716 So. 2d 1076, 1998 Miss. LEXIS 285 (Miss. 1998).

Court of Appeals reviews defendant’s double jeopardy claim de novo. United States v. Dixon, 132 F.3d 192, 1997 U.S. App. LEXIS 36328 (5th Cir. Miss. 1997), cert. denied, 522 U.S. 1061, 118 S. Ct. 721, 139 L. Ed. 2d 661, 1998 U.S. LEXIS 260 (U.S. 1998), cert. denied, 523 U.S. 1096, 118 S. Ct. 1581, 140 L. Ed. 2d 796, 1998 U.S. LEXIS 2864 (U.S. 1998).

“Double jeopardy” consists of three separate constitutional protections; it protects against second prosecution for same offense after acquittal, it protects against second prosecution for same offense after conviction, and it protects against multiple punishments for same offense. White v. State, 702 So. 2d 107, 1997 Miss. LEXIS 605 (Miss. 1997).

The Supreme Court was authorized to treat a circuit court’s denial of a criminal defendant’s motion to dismiss the indictment against him on double jeopardy grounds as a “final judgment” in a civil action under §11-51-3, which authorizes an appeal from a final judgment, and §9-3-9, which gives the Supreme Court jurisdiction of an appeal from any final judgment in the circuit court, since the double jeopardy claim went beyond the defendant’s right not to be convicted in that it involved his constitutional right not to be prosecuted for the offense, and therefore denial of the claim was final and justified immediate determination. De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

A defendant’s double jeopardy right not to be re-prosecuted for the same offense accrues instantly upon the happening of some event in criminal proceedings against him or her, though the original jeopardy must have “terminated” in order for such a right to accrue; thereafter, lapse of time neither strengthens nor diminishes the right as no subsequent event affects an accrued double jeopardy right. De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

A nolle prosequi entered upon the motion of the district attorney did not terminate the defendant’s original jeopardy or accrue unto him the right not to be re-indicted and re-prosecuted for the same offense where the State had unsuccessfully sought the defendant’s conviction through 2 successive trials which both ended when the jury became deadlocked so that there was a “manifest necessity” to declare a mistrial in each case, there was nothing to suggest any prosecutorial misconduct or manipulation in moving for the nolle prosequi, and there was no objection by the defendant to the entry of the nolle prosequi. De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

The Supreme Court was authorized to treat a criminal defendant’s appeal from a circuit court’s denial of his motion to dismiss the indictment against him on double jeopardy grounds as an appeal from a denial of a writ of habeas corpus under §11-43-53, or, alternatively, as an application to the Supreme Court for a writ of habeas corpus under §§11-43-7 and11-43-9, since the defendant’s double jeopardy claim went beyond his right not to be convicted in that it involved his constitutional right not to be prosecuted for the offense, and therefore the Supreme Court had jurisdiction of the defendant’s appeal under Art I § 9 of the United States Constitution and Art 3 § 21 of the Mississippi Constitution, which guarantee the right of habeas corpus. De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

A trial court’s imposition of a sentence of 49 1/2 years imprisonment upon finding that the defendant had violated a plea agreement which provided that the charges against the defendant would be dismissed following restitution and 3 years of good behavior pursuant to §99-15-26, in spite of the defendant’s argument that the maximum sentence he should have received was 3 years since the plea bargain required him to “go straight” for only 3 years as a condition of dismissal, since the defendant had not been adjudged guilty or sentenced for the original charges until the date when the 49 1/2 year sentence was imposed, and therefore the 3-year period of conditional good behavior did not amount to a sentencing ceiling for double jeopardy purposes. Wallace v. State, 607 So. 2d 1184, 1992 Miss. LEXIS 586 (Miss. 1992).

In §99-15-26 proceedings, the trial court never accepts the guilty plea and never imposes a sentence if the defendant fulfills the court-imposed conditions; where a guilty plea is accepted and a suspended sentence is imposed, the court cannot later impose a period of incarceration exceeding the original suspended sentence where the defendant fails to maintain a standard of good behavior because to do so would expose the defendant to double jeopardy. Wallace v. State, 607 So. 2d 1184, 1992 Miss. LEXIS 586 (Miss. 1992).

Where a defendant was charged with misdemeanor driving under the influence of alcohol, forfeiture of his bond and entry of a sentence of guilty into the docket constituted a conviction such that a subsequent trial for felonious driving under the influence was barred by the principle of double jeopardy. Bennett v. State, 528 So. 2d 815, 1988 Miss. LEXIS 311 (Miss. 1988).

Trial judge’s actions were tantamount to acquittal on charge of armed robbery and thereby dismissed charge of armed robbery as to one victim where trial judge determined that state had failed to produce evidence to prove that defendant robbed alleged victim with deadly weapon, where State had attempted to establish armed robbery of alleged victim with testimony and had simply failed to prove armed robbery, rejecting claim that inability to produce alleged victim was result of manifest necessity due to his intervening illness, because state could have sought continuance but instead elected to proceed with proof until defense counsel made motion for directed verdict. Reed v. State, 506 So. 2d 277, 1987 Miss. LEXIS 2483 (Miss. 1987).

In prosecution for attempted burglary of business dwelling, double jeopardy clause of United States and Mississippi Constitutions was not violated by retrial of defendant following order quashing indictment due to its insufficiency and failure to charge crime, since defendant was neither acquitted nor convicted, having successfully persuaded trial court not to submit issue of guilt or innocence to jury empaneled to try him. City of Jackson v. Keane, 502 So. 2d 1185, 1987 Miss. LEXIS 2676 (Miss. 1987).

Use of burglary charge against defendant to revoke his mistaken probation resulting from an embezzlement conviction was not a trial on the merits for burglary, and defendant’s subsequent trial on burglary charge did not place him twice in jeopardy. Lightsey v. State, 493 So. 2d 375, 1986 Miss. LEXIS 2583 (Miss. 1986).

Double jeopardy clause does not bar successive prosecutions by two different states for the same act. Heath v. Alabama, 474 U.S. 82, 106 S. Ct. 433, 88 L. Ed. 2d 387, 1985 U.S. LEXIS 143 (U.S. 1985).

Judge may impose more severe sentence upon defendant following new trial and conviction for same charge for which defendant has successfully appealed original conviction but only if judge affirmatively states in record reasons for harsher sentence and only if reasons are based upon objective information concerning identifiable conduct on part of defendant occurring after time of original sentencing proceeding, or based upon objective information concerning events occurring after time of original sentencing proceeding that may throw new light upon defendant’s life, health, habits, conduct, or mental and moral propensities. Ross v. State, 480 So. 2d 1157, 1985 Miss. LEXIS 2430 (Miss. 1985).

An inmate was properly denied credit for time served upon her original sentence for time spent out of prison on parole prior to its revocation, even though credit is allowed for time spent on work release, which is functionally similar to parole; nor did denying her credit for time served while on parole deprive her of rights secured under the double jeopardy clause, deny her due process of law, or subject her to an ex post facto law. Segarra v. State, 430 So. 2d 408, 1983 Miss. LEXIS 2578 (Miss. 1983).

Defendant was not subject to double jeopardy, even though defendant was issued a citation for resisting arrest and was later convicted of simple assault on a law enforcement officer, where a clear reading of the statutes established that the two offenses contained an element that was lacking from the other. Pendleton Grain Growers v. Pedro, 271 Ore. 24, 530 P.2d 85, 1975 Ore. LEXIS 478 (Or. 1975).

An order of the justice of peace court, dismissing the case against the accused for want of prosecution, showing that the accused was not prosecuted or put in jeopardy in that court, was insufficient to sustain the accused’s plea of former jeopardy in bar of judgment and sentence upon his being convicted in a circuit court of the charge of assault. Robinson v. State, 91 So. 2d 272 (Miss. 1956).

Although it is remarked in an early case (State v Moor, Walk 134) that the double jeopardy provision is binding in state as well as in Federal courts, it is now well settled that this amendment does not affect state action (Withers v Buckley, 20 How (US) 84, 15 L Ed 816) and is directed at the exercise of Federal authority, and not at the states and their agencies. Martin v. Dix, 52 Miss. 53, 1876 Miss. LEXIS 163 (Miss. 1876); Tucker v. State, 128 Miss. 211, 90 So. 845, 1922 Miss. LEXIS 108 (Miss. 1922).

6. – Administrative proceedings, double jeopardy.

Administrative proceedings did not invoke the double jeopardy clause, and as such defendant was not unconstitutionally subjected to double jeopardy where his removal from the intensive supervision program and reclassification into the general prison population, as well as the imposition of his original sentence, were administrative, not criminal proceedings; double jeopardy protections did not apply to suspension revocation hearings. Brown v. Miss. Dep't of Corr., 906 So. 2d 833, 2004 Miss. App. LEXIS 1157 (Miss. Ct. App. 2004).

Defendant did not suffer a double jeopardy violation where the trial court’s petition to revoke probation or to revoke suspension of a sentence was not a criminal case and not a trial on the merits of the case; there was no subsequent conviction and sentence, only an indictment, and defendant failed to show he had previously been convicted of the crime of possession of cocaine when the trial judge revoked his bond, and defendant did not show that jeopardy attached at probation and bail revocation hearings. Thomas v. State, 845 So. 2d 751, 2003 Miss. App. LEXIS 444 (Miss. Ct. App. 2003).

The transfer of a police investigator as a “punishment” was not the type of criminal punishment contemplated by the double jeopardy clause. Ladnier v. City of Biloxi, 749 So. 2d 139, 1999 Miss. App. LEXIS 94 (Miss. Ct. App. 1999).

An indictment which charged both burglary of a dwelling and grand larceny did not fail the same elements test where the burglary charge was based on the defendant’s entry into the victim’s home with the intent to commit grand larceny and the grand larceny charge was based on the defendant’s taking of a cultivator and mower from a shed on the victim’s property. Pool v. State, 1999 Miss. App. LEXIS 483 (Miss. Ct. App. July 27, 1999), aff'd in part and rev'd in part, 764 So. 2d 440, 2000 Miss. LEXIS 191 (Miss. 2000).

The defendant’s conviction for both attempted armed robbery and aggravated assault did not violate the double jeopardy provisions of the federal and state constitutions since each offense required different elements of proof. Greenwood v. State, 744 So. 2d 767, 1999 Miss. LEXIS 223 (Miss. 1999).

The defendant was properly charged with and convicted of capital murder/burglary and armed robbery, since each offense required proof of an element not necessary to the other. Bannister v. State, 731 So. 2d 583, 1999 Miss. LEXIS 26 (Miss. 1999).

Where the defendant was convicted and sentenced for rape and for simple assault on the rape victim’s eight-year-old daughter, he was convicted for distinctly different offenses and was not subjected to multiple prosecutions or multiple punishments. Brown v. State, 731 So. 2d 595, 1999 Miss. LEXIS 2 (Miss. 1999).

The double jeopardy clauses of the United States and Mississippi Constitutions do not preclude criminal prosecution for violation of §63-11-30 subsequent to administrative license suspension pursuant to §63-11-23(2). Keyes v. State, 708 So. 2d 540, 1998 Miss. LEXIS 33 (Miss. 1998).

An appeal by the Mississippi State Bar to enhance an attorney’s punishment for his violation of disciplinary rules did not violate the attorney’s constitutional right against double jeopardy. Mississippi State Bar v. Blackmon, 600 So. 2d 166, 1992 Miss. LEXIS 154 (Miss. 1992).

Double jeopardy rights were not violated in attorney disciplinary proceedings where earlier proceedings before Mississippi State Bar Committee on Complaints were dismissed and no investigatory hearing held in connection therewith, such dismissal being functional equivalent of grand jury’s refusal to indict or magistrate’s refusal to bind defendant over to await action of next grand jury. Mississippi State Bar v. Young, 509 So. 2d 210, 1987 Miss. LEXIS 2600 (Miss. 1987).

Since the revocation of good time was an administrative proceeding, defendant was not unconstitutionally subjected to double jeopardy under the Fifth Amendment by the combination of the revocation of his good time and prosecution for escape. Moore v. State, 461 So. 2d 768, 1984 Miss. LEXIS 2064 (Miss. 1984).

7. –Civil and criminal proceedings, double jeopardy.

Although defendant claimed that the court’s decision to set his pleas aside and bring him to trial constituted a breach of the plea agreement on the State’s behalf, an abuse of discretion, and double jeopardy, the circuit court did not abuse its discretion by disregarding the original plea agreement and putting the case on the trial docket because defendant’s guilty pleas were involuntary. There was no reason why defendant should not have been proceeded against as if no trial had previously taken place; therefore, defendant could not get his convictions set aside and then claim that he was protected from a new trial by the Double Jeopardy Clauses of the Mississippi and United States Constitutions, Miss. Const. art. 3, § 22 and U.S. Const. amend. V. Catchings v. State, 111 So.3d 1238, 2013 Miss. App. LEXIS 146 (Miss. Ct. App.), cert. dismissed, 121 So.3d 918, 2013 Miss. LEXIS 573 (Miss. 2013).

Jeopardy had not attached when the municipal court dismissed defendant’s driving under the influence (DUI) charge in the municipal court, where the municipal judge received no evidence and heard no witnesses before dismissing the DUI charge. Moreover, the judge’s comments on the order relative to the DUI charge did not contain any findings of the court, but rather, the court merely recorded the reasons that the prosecutor gave for not proceeding to trial on the DUI charge; such notations in the order did not constitute either an acquittal or an adjudication, such that the subsequent indictment or trial of defendant would be barred by the Double Jeopardy Clause, U.S. Const. amend. V, Miss. Const. art. 3, § 22. Deeds v. State, 27 So.3d 1135, 2009 Miss. LEXIS 588 (Miss. 2009), cert. denied, 562 U.S. 836, 131 S. Ct. 150, 178 L. Ed. 2d 37, 2010 U.S. LEXIS 5807 (U.S. 2010).

During defendant’s trial for second-offense DUI, the trial court did not commit reversible error by allowing the State to reopen its case-in-chief to offer proof of the first DUI conviction where it appeared that the omission of the essential element was due to the trial judge’s misunderstanding of the law; defendant was not “twice placed in jeopardy” when the trial court granted the brief recess. Lyle v. State, 987 So. 2d 948, 2008 Miss. LEXIS 255 (Miss. 2008).

Defendant’s convictions for murder and for shooting into an occupied dwelling did not violate the double jeopardy clause of the Fifth Amendment. In order to convict defendant for shooting into an occupied dwelling, the State was required to prove that defendant shot into a dwelling house, but no such showing was required to convict defendant under the felony-murder statute. Boyd v. State, 977 So. 2d 329, 2008 Miss. LEXIS 144 (Miss. 2008).

Dismissal of the inmate’s motion for post-conviction relief was proper in part because the inmate had pled guilty to manslaughter and was never prosecuted for murder; thus, he was not twice put in jeopardy of life or limb in violation of the Fifth Amendment. Truitt v. State, 958 So. 2d 299, 2007 Miss. App. LEXIS 413 (Miss. Ct. App. 2007).

Under the Fifth Amendment and Miss. Const. Art. 3, § 21, a trial court’s imposition of defendant’s original ten-year term after his second parole violation was not an unlawful extension or increase of his sentence in violation of his right against double jeopardy because, although the written sentencing order did not reflect the court’s imposition of the ten-year sentence but merely that all but 18 months of that sentence were suspended, on two occasions defendant was clearly informed in open court that his sentence was for ten years. Harvey v. State, 919 So. 2d 282, 2005 Miss. App. LEXIS 377 (Miss. Ct. App. 2005).

By being subject to both a criminal prosecution and civil fines for tax evasion, defendant was not exposed to double criminal prosecutions in violation of the Double Jeopardy Clause. Also, the indictment was not multiplicitous. King v. State, 897 So. 2d 981, 2004 Miss. App. LEXIS 689 (Miss. Ct. App. 2004), cert. denied, 896 So. 2d 373, 2005 Miss. LEXIS 224 (Miss. 2005).

Trial court ’s resentencing of defendant to subsequent sentences that were more severe than the original sentence imposed upon defendant’s guilty plea to transfer of a controlled substance violated double jeopardy principles despite the fact that the first resentencing had been on the motion of the defendant; as the right to a legal sentence is a fundamental right, defendant could raise the claim that the re-sentencings were illegal in an out-of-time motion for post-conviction relief. Ethridge v. State, 800 So. 2d 1221, 2001 Miss. App. LEXIS 479 (Miss. Ct. App. 2001).

Defendant’s acquittal on criminal charges involving firearms does not preclude subsequent in rem forfeiture proceeding against same firearms because neither collateral estoppel or double jeopardy bars civil, remedial forfeiture proceeding initiated following acquittal on related criminal charges. United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S. Ct. 1099, 79 L. Ed. 2d 361, 1984 U.S. LEXIS 31 (U.S. 1984), but see Cooper v. Greenwood, 904 F.2d 302, 1990 U.S. App. LEXIS 10827 (5th Cir. Miss. 1990).

8. –Juveniles, double jeopardy.

Defendant’s claim of double jeopardy, pursuant to the Fifth Amendment, was without merit where application of the Blockburger test revealed that elements of each of the crimes of shooting into a vehicle, Miss. Code Ann. §97-25-47, and aggravated assault, Miss. Code Ann. §97-3-7(2) were not contained in the other. Graves v. State, 969 So. 2d 845, 2007 Miss. LEXIS 676 (Miss. 2007).

Juvenile who has been adjudicated delinquent in youth court may not subsequently be tried as adult on same charges. In Interest of W.R.A., 481 So. 2d 280, 1985 Miss. LEXIS 2422 (Miss. 1985).

9. –Same elements, double jeopardy.

Defendant’s right to protection against double jeopardy was not violated because he was subject to multiple punishments for possession with intent to distribute five separate controlled substances, because to obtain a verdict on each count, the State was required to prove beyond a reasonable doubt that each of the substances found in defendant’s house was in fact a controlled substance under Miss. Code Ann. §41-29-139 (Rev. 2009), and that defendant possessed and intended to sell each drug. Watkins v. State, 101 So.3d 628, 2012 Miss. LEXIS 401 (Miss. 2012).

Court properly denied defendant’s motion for a directed verdict because the crime of statutory rape did not encompass the crime of gratification of lust. The crime of gratification of lust did not require any proof of sexual intercourse or proof of a laceration/tearing of the child’s genitalia, and as such, statutory rape required proof of an additional element not required by gratification of lust, and there was no double jeopardy. Branch v. State, 998 So. 2d 411, 2008 Miss. LEXIS 545 (Miss. 2008).

Defendant’s prosecutions for both shooting into a vehicle under Miss. Code Ann. §97-25-47 and murder under Miss. Code Ann. §97-3-19(1)(a), did not subject him to double jeopardy since the crimes charged required additional facts separate from each other; murder, unlike shooting into a vehicle, required the deliberate killing of an individual and did not require defendant to have shot into a vehicle, while shooting into a vehicle required only that defendant willfully shot into or at a vehicle. Further, the facts were such that it was not clear whether defendant shot into the vehicle when he killed the victim, as there was testimony to the effect that the victim may have had all or part of his head outside the vehicle when he was shot; in essence, the facts were such that defendant could have been found guilty of murder and of shooting into a vehicle without any risk of exposure to double jeopardy. Peacock v. State, 970 So. 2d 197, 2007 Miss. App. LEXIS 763 (Miss. Ct. App. 2007).

Offenses of kidnapping under Miss. Code Ann. §97-3-53 and armed robbery under Miss. Code Ann. §97-3-79 were clearly separate and distinct, with each requiring proof of additional facts the other did not; kidnapping, for example, required proof of intent to cause such person to be secretly confined or imprisoned against their will, whereas armed robbery did not, and armed robbery required the taking of personal property of another, but kidnapping did not. Thus, the crimes were separate and distinct regardless of their temporal overlap or their arising from a common nucleus of operative facts, and defendant’s double jeopardy rights were not violated through being convicted of both kidnapping and armed robbery. Moore v. State, 938 So. 2d 1254, 2006 Miss. App. LEXIS 86 (Miss. Ct. App. 2006), cert. denied, 2006 Miss. LEXIS 750 (Miss. Oct. 5, 2006), cert. denied, 939 So. 2d 805, 2006 Miss. LEXIS 749 (Miss. 2006).

Where the defendant was tried on a multicount indictment and convicted of both aiding and abetting another in the sale of cocaine and selling cocaine in concert with the other person, since there was only one transaction, the conviction for aiding and abetting was barred by double jeopardy. Wilson v. State, 775 So. 2d 735, 2000 Miss. App. LEXIS 216 (Miss. Ct. App. 2000).

A prior conviction for reckless driving does not present a bar to a prosecution for felony murder, arising out of the same nucleus of facts, based on the underlying felony of driving while intoxicated as a third offender because proof of reckless driving is not necessary to prove felony driving while intoxicated or felony murder. Lee v. State, 759 So. 2d 390, 2000 Miss. LEXIS 94 (Miss. 2000).

Convictions for both participating in drug conspiracy and engaging in continuing criminal enterprise (CCE) violated double jeopardy, where alleged CCE was same enterprise as the conspiracy. United States v. Dixon, 132 F.3d 192, 1997 U.S. App. LEXIS 36328 (5th Cir. Miss. 1997), cert. denied, 522 U.S. 1061, 118 S. Ct. 721, 139 L. Ed. 2d 661, 1998 U.S. LEXIS 260 (U.S. 1998), cert. denied, 523 U.S. 1096, 118 S. Ct. 1581, 140 L. Ed. 2d 796, 1998 U.S. LEXIS 2864 (U.S. 1998).

Vacation of defendant’s drug conspiracy conviction on appeal, based on determination that convictions for both participating in drug conspiracy and engaging in continuing criminal enterprise (CCE) violated double jeopardy, did not require remand for resentencing, where drug conspiracy conviction did not lead the district court to impose a harsher sentence on defendant for engaging in a CCE than it would have in the absence of the drug conspiracy conviction. United States v. Dixon, 132 F.3d 192, 1997 U.S. App. LEXIS 36328 (5th Cir. Miss. 1997), cert. denied, 522 U.S. 1061, 118 S. Ct. 721, 139 L. Ed. 2d 661, 1998 U.S. LEXIS 260 (U.S. 1998), cert. denied, 523 U.S. 1096, 118 S. Ct. 1581, 140 L. Ed. 2d 796, 1998 U.S. LEXIS 2864 (U.S. 1998).

Treble civil penalty of $84,460.60 for Medicaid fraud, and imposition of prison sentence after defendant failed to pay penalty, did not constitute double jeopardy when considered with other punishment received when defendant pleaded guilty, such as a fine for actual amount of fraud and two-year probation; all punishment was imposed in a single proceeding, and punishment was within statutory authority. Jennings v. State, 700 So. 2d 1326, 1997 Miss. LEXIS 459 (Miss. 1997), overruled in part, Rowland v. State, 42 So.3d 503, 2010 Miss. LEXIS 386 (Miss. 2010).

Blockburger or “same-elements test” of whether double jeopardy bar applies in context of multiple punishment or multiple prosecution inquires whether each offense contains an element not contained in the other; if not, they are same offense for double jeopardy purposes. Cook v. State, 671 So. 2d 1327, 1996 Miss. LEXIS 130 (Miss. 1996).

Convictions for both murder during course of armed robbery and grand larceny violated double jeopardy prohibition against multiple punishments for same offense, where robbery charge, which was used to elevate case to capital murder, encompassed elements of grand larcency. Holly v. State, 671 So. 2d 32, 1996 Miss. LEXIS 15 (Miss.), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4179 (U.S. 1996).

Although state may freely define crimes and assign punishments, it is not allowed to punish defendant for crime containing elements which are completely enveloped by offense for which defendant was previously convicted. Holly v. State, 671 So. 2d 32, 1996 Miss. LEXIS 15 (Miss.), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4179 (U.S. 1996).

A defendant’s convictions for both murder-for-hire capital murder under §97-3-19(2)(d) and conspiracy to commit capital murder under §97-1-1 violated the constitutional protection against double jeopardy, since the definition of murder-for-hire in §97-3-19(2)(d) completely encompasses the agreement or conspiracy to commit capital murder. Colosimo v. Senatobia Motor Inn, 662 So. 2d 552, 1995 Miss. LEXIS 479 (Miss. 1995).

Since conspiracy and burglary are separate and distinct crimes requiring proof of different elements, a defendant did not have a double jeopardy claim based on the prosecution of these 2 crimes arising from the same incident, despite the fact that the prosecution chose to prosecute the defendant for these crimes at separate trials. House v. State, 645 So. 2d 931, 1994 Miss. LEXIS 537 (Miss. 1994).

A defendant’s right to be free from double jeopardy was not violated, even though the defendant was tried, convicted and sentenced for 2 distinct offenses–simple assault and simple assault upon a law enforcement officer–arising from the same incident, because the defendant engaged in conduct which was severable into 2 separate offenses where he intervened in an ongoing assault to aid another perpetrator by preventing a third party from assisting the victim, and he subsequently committed an assault against the same victim by pointing his pistol at him. Moore v. State, 617 So. 2d 272, 1993 Miss. LEXIS 128 (Miss. 1993).

The offenses of aggravated assault under §97-3-7 and shooting into a dwelling house under §97-37-29 did not constitute the “same offense” for double jeopardy purposes where at least 18 shots were fired into the house and the victim was not struck with all 18 shots; the 2 statutes require proof of different facts in that shooting into a dwelling house is not required to establish an aggravated assault, and neither injury nor attempt to injure is required to prove the offense of shooting into a dwelling house. Shook v. State, 552 So. 2d 841, 1989 Miss. LEXIS 449 (Miss. 1989).

A defendant’s conviction and sentence on a charge of rape did not subject him to double jeopardy even though he had also been convicted and sentenced on a burglary charge which arose out of the same facts and circumstances as the rape charge. Norman v. State, 543 So. 2d 1163, 1989 Miss. LEXIS 264 (Miss. 1989).

The prosecution of a defendant for robbery with a deadly weapon after a prior conviction for kidnapping arising from the same incident was not barred by double jeopardy since the crimes of armed robbery and kidnapping required different elements of proof. Brock v. State, 530 So. 2d 146, 1988 Miss. LEXIS 361 (Miss. 1988).

Defendant’s constitutional double jeopardy right was violated where he had previously been acquitted of the crime of murder while in commission of rape, which was based on same series of acts upon which subsequent conviction of kidnapping was based. Dixon v. State, 513 So. 2d 951, 1987 Miss. LEXIS 2836 (Miss. 1987).

Defendant’s prior conviction for rape did not preclude, on double jeopardy grounds, his prosecution for burglary, even though both arose out of the same general set of facts and testimony in both trials was essentially the same, since the essential statutory elements of the two charges are entirely different. Smith v. State, 429 So. 2d 252, 1983 Miss. LEXIS 2480 (Miss. 1983).

Defendant’s motion to dismiss, on double jeopardy grounds, an indictment charging him with armed burglary of an inhabited dwelling at nighttime was improperly denied, where there was a common nucleus of operative facts from which arose the prosecution for burglary and an earlier prosecution for rape, where defendant had earlier been acquitted of the rape, where the not guilty verdict in the rape trial was well within the evidence, where defendant’s only defense at the rape trial was that another person committed the crime, where the jury could not rationally have acquitted him on any other basis, and where the state offered substantial evidence during the rape trial to show that he broke and entered the rape victim’s home. Sanders v. State, 429 So. 2d 245, 1983 Miss. LEXIS 2499 (Miss. 1983).

In a prosecution for aggravated assault arising out of an automobile accident, the trial court properly quashed the indictment on the grounds of double jeopardy and collateral estoppel where defendant had previously been acquitted of manslaughter in the death of another victim of the accident and where the pivotal issue of whether defendant had grabbed the steering wheel of the truck in which he was riding, thereby causing the collision, was the same in both cases and had previously been resolved in defendant’s favor in the manslaughter prosecution. State v. Clements, 383 So. 2d 818, 1980 Miss. LEXIS 1993 (Miss. 1980).

10. – Separate incidents, double jeopardy.

Death sentence of a petitioner for postconviction relief was not barred by the double jeopardy clause because the evidence presented by the State in a trial for the murder of a fourth victim was sufficiently different from the proof presented in a second trial for the murders of the other three victims to prove each element of the murders. Simon v. State, 857 So. 2d 668, 2003 Miss. LEXIS 447 (Miss. 2003), cert. denied, 541 U.S. 977, 124 S. Ct. 1885, 158 L. Ed. 2d 475, 2004 U.S. LEXIS 2641 (U.S. 2004).

The defendant was not subjected to double jeopardy where he was tried and convicted for armed robbery after a prior conviction for simple assault because the two convictions arose out of separate encounters with the victim, despite the fact that both encounters occurred in the same vehicle and only several minutes apart. Brooks v. State, 769 So. 2d 218, 2000 Miss. App. LEXIS 363 (Miss. Ct. App. 2000).

The defendant was not subjected to double jeopardy where he was tried and convicted for kidnapping after a prior conviction for simple assault which arose from the defendant’s hitting the victim after a failed attempt to kidnap him. Brooks v. State, 769 So. 2d 218, 2000 Miss. App. LEXIS 363 (Miss. Ct. App. 2000).

The defendant was not previously convicted on the same forgery charge in one county for which he was subsequently convicted in another county; therefore, there was no double jeopardy violation because he never pleaded guilty to any of the charges in the first county and only paid restitution on two checks for which he was indicted in the first county, which charges were not the same as the charges in the second county. Rush v. State, 749 So. 2d 1024, 1999 Miss. LEXIS 355 (Miss. 1999).

Conviction of defendant for individual operation of chop shop violated double jeopardy under Pockburger test, as defendant was convicted of operating the same chop shop on different days, and was convicted of joint operation of chop shop; operation of chop shop is continuing offense when based on same evidence, and offenses of individual and joint operation of chop shop arose from single transaction, same evidence, and same proof. White v. State, 702 So. 2d 107, 1997 Miss. LEXIS 605 (Miss. 1997).

Separate prosecutions for sales of illegal controlled substances, arising from incidents occurring one week apart from each other, do not violate double jeopardy even where same undercover agent has induced sales at same general location using same modus operandi. Barnette v. State, 478 So. 2d 800, 1985 Miss. LEXIS 2282 (Miss. 1985).

Prosecution for aggravated assault on police officer is not barred by prior prosecution for aggravated assault on another police officer arising out of same incident. Lee v. State, 469 So. 2d 1225, 1985 Miss. LEXIS 1900 (Miss. 1985).

Where the body of the victim was severely burned by a fire, which also consumed his house, and where the defendant was acquitted of the murder, the double jeopardy clause of the Fifth Amendment did not bar the subsequent prosecution of the defendant for the arson of the victim’s home. Harden v. State, 460 So. 2d 1194, 1984 Miss. LEXIS 1963 (Miss. 1984).

A defendant’s Fifth Amendment right against double jeopardy was not violated where he had been convicted in a first trial for robbing one of the victims and kidnapping both of them and was being prosecuted for these underlying felonies in his subsequent trial for the murder of the second victim, in that the defendant was not being retried for a crime which grew out of the same transaction, the murder of the first victim was distinct from the murder of the second victim, and the underlying felonies constituted only a portion of the two distinct crimes. Wilcher v. State, 455 So. 2d 727, 1984 Miss. LEXIS 1797 (Miss. 1984), cert. denied, 470 U.S. 1034, 105 S. Ct. 1411, 84 L. Ed. 2d 794, 1985 U.S. LEXIS 1334 (U.S. 1985).

A defendant previously convicted of kidnapping was not subjected to double jeopardy at his subsequent trial for rape of his kidnap victim since he had committed two separate offenses when he had raped his kidnap victim. The trial court properly admitted evidence and exhibits of the crime of rape at the kidnapping trial since evidence of other crimes is admissible to prove motive and a connection between the act proposed to be proved and the crime charged. Hughes v. State, 401 So. 2d 1100, 1981 Miss. LEXIS 1956 (Miss. 1981).

11. – Same episode, no double jeopardy.

Defendant’s double jeopardy rights were not violated by her convictions for three counts of driving under the influence and negligently causing death because the State was not required to specifically list the substance or substances that defendant allegedly was driving under the influence of at the time of the accident. Defendant was only convicted of one count of driving under the influence of hydrocodone and negligently causing the death or injury of another for each death or injury so caused. Teston v. State, 44 So.3d 977, 2008 Miss. App. LEXIS 681 (Miss. Ct. App. 2008), cert. dismissed, 44 So.3d 969, 2010 Miss. LEXIS 520 (Miss. 2010).

Defendant’s motion for post-conviction relief was properly denied where defendant’s convictions for conspiracy to commit capital murder, accessory before the fact of grand larceny, and accessory before the fact of burglary of a dwelling with intent to commit assault did not subject defendant to double jeopardy; defendant’s crimes were completely different and required proving different sets of elements. Byrom v. State, 978 So. 2d 689, 2008 Miss. App. LEXIS 188 (Miss. Ct. App. 2008).

Trial court properly dismissed defendant’s motion for post-conviction relief where he was not subjected to double jeopardy by being convicted of three criminal offenses arising out of a single incident; a criminal defendant could be convicted of more than one offense that arose out of a single event where each offense required proof of a different element. Ward v. State, 944 So. 2d 908, 2006 Miss. App. LEXIS 860 (Miss. Ct. App. 2006).

Protection guaranteed by the Double Jeopardy Clauses of the Fifth Amendment and Miss. Const. Art. 3, § 22, and the doctrine of collateral estoppel, did not preclude the State from charging defendant with a cocaine offense that was the basis for an unsuccessful petition to revoke his probation, because there were different issues and burdens of proof involved in a revocation hearing and a trial on the indictment. A revocation hearing is conducted to enforce the court’s order imposing conditions on a defendant under a suspended sentence, and the issue to be determined at trial on the indictment is whether the State has proven beyond a reasonable doubt the elements of the charge; therefore, collateral estoppel does not apply. Oliver v. State, 922 So. 2d 36, 2006 Miss. App. LEXIS 112 (Miss. Ct. App. 2006).

Inmate’s convictions for aggravated assault and aggravated robbery did not violate his Fifth Amendment right to be free from double jeopardy because even though the charges arose from the same set of facts, the two charges had different elements that the State needed to prove and one was not a lesser-included offense of the other. Thomas v. State, 930 So. 2d 1264, 2005 Miss. App. LEXIS 993 (Miss. Ct. App. 2005).

Convictions for armed carjacking and armed robbery occurring during the same episode did not constitute double jeopardy where the carjacking charge was based on the taking of a delivery truck and the robbery charge was based on the theft of money from one of the occupants of the truck. McCline v. State, 856 So. 2d 556, 2003 Miss. App. LEXIS 460 (Miss. Ct. App.), cert. denied, 860 So. 2d 315, 2003 Miss. LEXIS 722 (Miss. 2003).

Defendant was not subjected to double jeopardy where the crimes of aggravated assault and armed robbery. although they arose from the same incident, were separate. Johnson v. State, 848 So. 2d 906, 2003 Miss. App. LEXIS 588 (Miss. Ct. App. 2003).

Petitioner was indicted on two methamphetamine precursor counts, and though both counts may have concerned the same ephedrine, one count was retired, and petitioner was not prosecuted, tried or convicted on both the counts; accordingly, petitioner’s right not to be submitted to double jeopardy was not violated. McDonald v. State, 847 So. 2d 281, 2003 Miss. App. LEXIS 490 (Miss. Ct. App. 2003).

12. –Lesser included offenses, double jeopardy.

In context of double jeopardy, underlying felony in felony-murder is, by definition, included in greater offense and may not be punished separately. Ballenger v. State, 667 So. 2d 1242, 1995 Miss. LEXIS 451 (Miss. 1995), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4177 (U.S. 1996).

A trial court erred in allowing a defendant to plead guilty to both capital murder and the underlying felony of burglary which elevated the murder to capital murder; sentencing the defendant separately for both felony murder and the underlying felony violated his right against double jeopardy. Fuselier v. State, 654 So. 2d 519, 1995 Miss. LEXIS 222 (Miss. 1995).

Section63-11-30 proscribes the act of drunk driving rather than the act of negligent killing; thus, an indictment charging the defendant with 2 counts of violating §63-11-30 based on only one act of drunk driving subjected the defendant to double jeopardy and required reversal of the conviction on the second count. Mayfield v. State, 612 So. 2d 1120, 1992 Miss. LEXIS 861 (Miss. 1992).

A defendant’s right to be shielded from double jeopardy was violated where the defendant was convicted and punished for both kidnapping under §97-3-53 and capital murder while engaged in the crime of kidnapping under §97-3-19(2)(e); since the defendant was indicted, tried and found guilty of capital murder under §97-3-19(2)(e) with the kidnapping as the underlying felony, and thereafter exposed to trial for his life, the State was precluded from punishing him further for the §97-3-53 kidnapping. Meeks v. State, 604 So. 2d 748, 1992 Miss. LEXIS 400 (Miss. 1992).

Double jeopardy clauses of federal and state constitutions were not violated where defendant was originally indicted for capital murder of rape victim, which was subsequently reduced to murder as result of plea bargain, and later charged with rape; in capital murder indictment, defendant was charged with underlying felony of burglary, and nothing in that indictment suggested defendant committed rape. McFee v. State, 511 So. 2d 130, 1987 Miss. LEXIS 2630 (Miss. 1987).

13. – Conspiracy, double jeopardy.

Defendant’s sentences for conspiracy to commit false pretenses and conspiracy to commit timber theft punished him twice for the same illegal agreement, violating the constitutional prohibition against double jeopardy, because here were not two separate conspiracies but rather one conspiracy with two illegal objects, to steal the victim’s timber and to obtain money from an unwitting timber company through false pretenses. Terrell v. State, 237 So.3d 717, 2018 Miss. LEXIS 1 (Miss. 2018).

Issue was never framed for the jury to determine appellant’s guilt or lack thereof as to the charge of conspiracy. Appellant’s contention that the crime of conspiracy to commit armed robbery was presented to the jury and subsequently dismissed by the jury in his first trial such that double jeopardy and collateral estoppel would attach was unfounded. Newell v. State, 180 So.3d 701, 2015 Miss. App. LEXIS 236 (Miss. Ct. App. 2015).

Appellate court affirmed the denial of the inmate’s motion for postconviction relief because the inmate was not subjected to double jeopardy for the separate convictions of conspiracy to commit capital murder and attempted capital murder as they are two separate crimes. Lee v. State, 918 So. 2d 87, 2006 Miss. App. LEXIS 23 (Miss. Ct. App. 2006).

The decision of the manifest necessity for declaring a mistrial because of juror problems is a matter vested in the sound discretion of the trial court; the standard for determining whether a mistrial was a manifest necessity is not so absolute as the phrase would seem to imply. Jenkins v. State, 1999 Miss. App. LEXIS 301 (Miss. Ct. App. May 18, 1999), aff'd, 759 So. 2d 1229, 2000 Miss. LEXIS 123 (Miss. 2000).

The defendant’s retrial was not barred by double jeopardy where the defendant’s first trial ended in a mistrial declared by the trial court, on its own motion, when it was discovered that one juror had failed to take his seat in the jury box and that, instead, another member of the venire not selected as a juror had taken that seat, notwithstanding that the court denied the defendant’s motion for a mistrial made when the problem was first discovered, but later declared the mistrial on its own motion without seeking the views of the state or the defense. Jenkins v. State, 1999 Miss. App. LEXIS 301 (Miss. Ct. App. May 18, 1999), aff'd, 759 So. 2d 1229, 2000 Miss. LEXIS 123 (Miss. 2000).

Because conspiracy and transfer of a controlled substance have been shown to be separate crimes, the defendant did not have a valid double jeopardy claim as the crime of conspiracy was complete when the defendant agreed with others to unlawfully possess and transfer a controlled substance. Thomas v. State, 711 So. 2d 867, 1998 Miss. LEXIS 185 (Miss. 1998).

Test for determining when separate conspiracy exists, for purpose of determining whether subsequent prosecution is barred by double jeopardy, requires government to prove, by preponderance of the evidence, a separate conspiracy focusing upon elements of time, persons acting as coconspirators, statutory offenses charged in indictments, overt acts charged by government or any other description of offense charged which indicates nature and scope of activity which government sought to punish in each case, and place where events alleged as part of conspiracy took place. Cook v. State, 671 So. 2d 1327, 1996 Miss. LEXIS 130 (Miss. 1996).

Subsequent prosecution of defendants, who had been acquitted of conspiracy to commit forgery and/or defraud corporation out of money for forged soybean weight certificates, on charge of conspiracy to defraud Farmer’s Home Administration was barred by double jeopardy clause, even though second prosecution accused defendants of trying to defraud different victim, as corporation was named in both indictments and, in addition, same time frame was involved, persons named as coconspirators were substantially the same, offenses charged in both indictments were conspiracy to defraud and to cheat, overt acts by defendants amounted to same course of conduct of transferring forged soybean certificates to company which issued checks in defendants’ names representing payment for soybeans purportedly delivered to corporation, and conduct occurred in same counties. Cook v. State, 671 So. 2d 1327, 1996 Miss. LEXIS 130 (Miss. 1996).

Although a substantive offense and a conspiracy to commit are 2 separate offenses, where there is a common nucleus of operative facts existing in both indictments, and where the ultimate fact has been determined in a prior acquittal of the substantive offense by a final judgment, a conspiracy trial is barred thereafter under the constitutional double jeopardy provision. Griffin v. State, 545 So. 2d 729, 1989 Miss. LEXIS 289 (Miss. 1989), limited, State v. Thomas, 645 So. 2d 931, 1994 Miss. LEXIS 554 (Miss. 1994).

14. –Nolle prosequi, double jeopardy.

In a case in which defendant appealed the dismissal of his motion for post-conviction relief, he argued unsuccessfully that he was subjected to double jeopardy because he was charged with armed robbery on three occasions: (1) in Count II of his indictment, (2) in Count IV of his indictment, and (3) when he pled guilty to the charge of armed robbery. The State filed an Order of Nolle Prosequi on Counts I, II, III, and V; therefore, the burglary charge in Count II was passed to the file, and defendant was no longer charged with nor convicted of Count II. Ewing v. State, 34 So.3d 612, 2009 Miss. App. LEXIS 661 (Miss. Ct. App. 2009), cert. denied, 34 So.3d 1176, 2010 Miss. LEXIS 245 (Miss. 2010).

Defendant’s voluntary refusal to testify against his co-defendant constituted a material breach of his plea bargain agreement with the State, and, as a result of his breach, the parties were returned to the status quo ante; thus, defendant had no double jeopardy defense available concerning re-indictment and conviction on the charges. Also, the transcript of defendant’s guilty plea hearing clearly showed that he was aware that the State would seek to invalidate his plea and reinstate the charges if he failed to testify truthfully against his co-defendant; additionally, as to the reinstatement of a kidnapping charge, it was fully within the State’s authority to re-indict defendant for the same offense after an order of nolle prosequi had been entered. Moore v. State, 938 So. 2d 1254, 2006 Miss. App. LEXIS 86 (Miss. Ct. App. 2006), cert. denied, 2006 Miss. LEXIS 750 (Miss. Oct. 5, 2006), cert. denied, 939 So. 2d 805, 2006 Miss. LEXIS 749 (Miss. 2006).

The defendant’s entry of a guilty plea did not violate double jeopardy where (1) the defendant was initially indicted for grand larceny, but subsequently agreed to enter a pre-trial intervention program and agreed with the district attorney to nolle prosse the charge, (2) the defendant thereafter failed to comply with the terms of the pre-trial intervention program, (3) the district attorney then filed a motion to remove the defendant from the program and filed an information charging him with grand larceny, (4) the circuit court judge entered an order for the defendant’s removal from the pre-trial intervention program, and (5) the defendant waived his right to be re-indicted for grand larceny, pled guilty, and was sentenced. Martin v. State, 766 So. 2d 812, 2000 Miss. App. LEXIS 415 (Miss. Ct. App. 2000).

15. –Mistrial, double jeopardy.

Defendant’s second trial did not violate double jeopardy because under the circumstances, which included a witness’s unexpected family emergency, the importance of his testimony, and the uncertainty that a continuance would suffice, manifest necessity existed to declare a mistrial; defendant’s valued right to have the trial concluded by the first tribunal was subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury. Montgomery v. State, 253 So.3d 305, 2018 Miss. LEXIS 382 (Miss. 2018).

Trial court did not err in failing to dismiss an indictment on the basis of double jeopardy because the prosecution had not deliberately provoked a mistrial by failing to disclose to defendant prior to trial that an officer would testify that defendant had surrendered defendant’s driver’s license prior to running from officers. Daniels v. State, 9 So.3d 1194, 2009 Miss. App. LEXIS 252 (Miss. Ct. App. 2009).

Where the State moved for a mistrial, no double jeopardy emanated from the first trial because a manifest necessity arose, when the State, during direct examination, discovered that its first witness (defendant’s companion, charged as an accessory) was unrepresented by counsel. That witness had made incriminating statements and it was his rights, not defendant’s, that the State believed were violated; and there was no showing of harm to defendant, bad faith or prosecutorial misconduct. Knox v. State, 912 So. 2d 1004, 2005 Miss. App. LEXIS 207 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 686 (Miss. 2005).

Trial court did not err in declaring a mistrial in an armed robbery case because, by the time a Batson challenge was raised, other jurors in the case had already been dismissed; jeopardy did not attach because the record indicated that the jury had not been sworn, despite a trial court’s order that stated otherwise. Gaskin v. State, 873 So. 2d 965, 2004 Miss. LEXIS 288 (Miss. 2004).

Where defendant’s first trial resulted in a mistrial, based on a Batson challenge, because the jury had not been sworn, the rules prohibiting double jeopardy were not violated; as such double jeopardy protection did not attach to defendant’s first proceeding so as to preclude a second trial. Gaskin v. State, 856 So. 2d 363, 2003 Miss. App. LEXIS 164 (Miss. Ct. App. 2003).

A trial court cannot declare a mistrial on its own motion after a trial has begun, without seeking the view of the state or defense and where a qualified alternate juror is available and seated; thus, a mistrial declared in such a way is not based on manifest necessity for purposes of double jeopardy. Jenkins v. State, 759 So. 2d 1229, 2000 Miss. LEXIS 123 (Miss. 2000).

There was no double jeopardy violation where the defendant did not want to be tried by a jury duly constituted to hear the state’s charges against him and moved repeatedly for a mistrial, and where his motion was ultimately granted because the trial court had made an unintended error. Jenkins v. State, 759 So. 2d 1229, 2000 Miss. LEXIS 123 (Miss. 2000).

Defendant who moves for mistrial generally is barred from later complaining of double jeopardy violation; to overcome bar, defendant must show that error occurred and that it was committed by the prosecution purposefully to force defendant to move for mistrial. Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 1996 Miss. LEXIS 146 (Miss. 1996).

Double jeopardy does not arise from grant of mistrial on defendant’s motion without proof of judicial error prejudicing defendant or bad faith prosecutorial misconduct. Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 1996 Miss. LEXIS 146 (Miss. 1996).

Alleged error committed by the prosecution in requesting and receiving information on jury panel members from circuit clerk, resulting in mistrial on defendant’s request, was insufficient to trigger double jeopardy so as to bar second trial where defendant failed to prove prosecutor’s intent to force defendant to request mistrial. Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 1996 Miss. LEXIS 146 (Miss. 1996).

In a defendant’s second trial conducted approximately one week after the declaration of a mistrial during his first trial did not violate the constitutional prohibition against double jeopardy where the first trial ended in a mistrial declared by the court on its own motion when the prosecutor brought to his attention that a juror had failed to divulge that she was related to a law enforcement officer. Box v. State, 610 So. 2d 1148, 1992 Miss. LEXIS 748 (Miss. 1992).

A reindictment and retrial after the first trial, resulted in a mistrial due to a hung jury, did not violate the prohibition against double jeopardy, in spite of the defendant’s argument that there was no manifest necessity for dismissing the first indictment and that the reindictment and retrial was for the purpose of allowing the prosecution to strengthen its case, where there was no variance between the indictments, the proof offered and the defense asserted, and the second indictment did not charge the defendant with a different or additional offense. Wilson v. State, 574 So. 2d 1324, 1990 Miss. LEXIS 845 (Miss. 1990).

If the trial judge’s declaration of a mistrial was a manifest necessity, and there was no abuse of discretion, then a criminal defendant may be tried again on the same charge. If there was not a manifest necessity for the mistrial, then a retrial is barred. Whether the standard has been met depends on the facts and circumstances of each case. Spann v. State, 557 So. 2d 530, 1990 Miss. LEXIS 49 (Miss. 1990).

A retrial of a defendant for rape, after the trial judge declared a mistrial sua sponte during a previous trial for the same offense, would not violate the double jeopardy provisions of the Mississippi and United States Constitutions, in spite of the defendant’s argument that the mistrial was the fault of prosecution witnesses whose behavior could be imputed to the State, where the State did not elicit or provoke the witnesses’ questionable behavior, the problem occurred on cross-examination, there was no evidence of bad faith on the part of the State, and it was the defendant’s wife’s outbursts from the gallery which finally triggered a mistrial. Spann v. State, 557 So. 2d 530, 1990 Miss. LEXIS 49 (Miss. 1990).

The grant of a mistrial in a homicide case upon defendant’s motion and on the ground that the jurors had failed to follow the trial judge’s instruction to avoid media coverage of the trial did not form the basis of a double jeopardy claim in absence of showing of bad faith on the part of anyone connected with state having to do with the release of information to a news reporter, although a police officer had talked by phone with the reporter. Watts v. State, 492 So. 2d 1281, 1986 Miss. LEXIS 2525 (Miss. 1986).

In a prosecution for aggravated assault in which the defendant was convicted after a second trial, a mistrial having been declared by the trial judge in the first trial at the request of the prosecution when it was learned that the defendant’s tape-recorded confession commenced with his demand that he see an attorney, the second trial of the defendant violated the prohibition against double jeopardy where jeopardy had already attached in the first trial with the swearing in of the jury and where the prosecution’s complaint that it could not proceed with the first trial because the jury had heard the defendant’s request for an attorney at the time of his alleged confession did not constitute such manifest necessity as to permit the granting of a mistrial; the failure of the defendant’s attorney to object to the granting of the mistrial did not permit retrial where there was no question but that the court intended to grant the prosecution’s request. Jones v. State, 398 So. 2d 1312, 1981 Miss. LEXIS 2014 (Miss. 1981).

A retrial did not place defendant in double jeopardy where reversal of his manslaughter conviction was due to the error of the lower court in compelling defendant’s wife to testify for the state and was not based on insufficiency of the evidence; however, it was error to retry defendant for murder instead of manslaughter where he had been charged with but not convicted of murder in the first trial. Tapp v. State, 373 So. 2d 1029, 1979 Miss. LEXIS 2311 (Miss. 1979).

16. – Multiple punishments, double jeopardy.

Trial court sentenced defendant to criminal contempt for refusal to testify in co-defendant’s trial; because his failure to testify constituted a material breach of the plea agreement, the State reinstated the kidnapping charge, for which defendant was subsequently convicted and sentenced to 25 years’ imprisonment. Defendant contended that the kidnapping conviction and sentence constituted a second punishment for his refusal to testify, thus subjecting him to double jeopardy; however, defendant was punished once for his refusal to testify against his co-defendant and once for the separate and distinct crime of kidnapping the victims, and, thus, his right double jeopardy rights were not violated as he was not punished multiple times for the same crime. Moore v. State, 938 So. 2d 1254, 2006 Miss. App. LEXIS 86 (Miss. Ct. App. 2006), cert. denied, 2006 Miss. LEXIS 750 (Miss. Oct. 5, 2006), cert. denied, 939 So. 2d 805, 2006 Miss. LEXIS 749 (Miss. 2006).

17. –Capital sentencing, double jeopardy.

Harsher sentence imposed on defendant was proper where, in his second sentencing hearing, the judge heard new evidence concerning the events of the crimes and that evidence led him to believe that the crime was more heinous than the judge originally believed. There was no indication of vindictiveness and neither the double jeopardy provision nor the Equal Protection Clause imposed an absolute bar to the more severe sentence upon reconviction. Fowler v. State, 919 So. 2d 1129, 2005 Miss. App. LEXIS 581 (Miss. Ct. App. 2005), cert. denied, 921 So. 2d 1279, 2006 Miss. LEXIS 56 (Miss. 2006).

Jury was not improperly required to weigh same facts twice against mitigating evidence, in violation of double jeopardy clause, when sentencing court allowed defendant’s conviction for capital murder of second victim to be considered as an aggravating circumstance; court was not faced with one action for which defendant could be prosecuted on either underlying crime or capital murder, but rather, there were actually two murder victims–the product of two separate criminal actions by defendant. Wilcher v. State, 697 So. 2d 1123, 1997 Miss. LEXIS 101 (Miss. 1997).

Aggravating circumstances used to determine whether to impose the death penalty do not themselves carry any penalty, as their only purpose is to narrow class of individuals most worthy of receiving the death penalty and to furnish guidance to the jury, so that use of aggravating circumstance, such as sexual battery, which has also been the basis for conviction for an offense does not violate double jeopardy. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Submission to a capital sentencing jury of the mitigating factor that the defendant had no “significant” history of criminal activity was not improper, in spite of the defendant’s argument that the factor was unconstitutionally applied in his particular case because it implied that he had at least some criminal history when in fact he had none, where the mitigating factor was taken verbatim from the list provided by the legislature to be considered in imposing sentence, and the defendant had the opportunity during closing argument to dispel any notion the jury might have had that he had a history of criminal activity. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

Since Mississippi’s capital sentencing procedure requires the jury to determine whether the State has proved its case for the death penalty, the double jeopardy clause will protect a defendant from any subsequent attempt to subject him or her to the death penalty after a jury has impliedly acquitted him or her of the death penalty by determining that only a life sentence was warranted. Lanier v. State, 635 So. 2d 813, 1994 Miss. LEXIS 165 (Miss. 1994), overruled in part, Twillie v. State, 892 So. 2d 187, 2004 Miss. LEXIS 1322 (Miss. 2004).

The double jeopardy clause did not afford a capital murder defendant protection against further capital sentencing procedures where he was originally sentenced to death by a jury, the death sentence was subsequently reversed due to a confrontation clause problem but there was no finding that the State had failed to prove its case for the death penalty, and the defendant and the State then entered into a sentencing agreement which was found to be void; since there was no acquittal of the death penalty, the double jeopardy clause would not prohibit the State from seeking the death penalty at a subsequent sentencing hearing. Lanier v. State, 635 So. 2d 813, 1994 Miss. LEXIS 165 (Miss. 1994), overruled in part, Twillie v. State, 892 So. 2d 187, 2004 Miss. LEXIS 1322 (Miss. 2004).

The holding of a hearing on the issue of habitual offender status, which resulted in a sentence of life without parole, following a bifurcated guilt and sentencing trial on a charge of capital murder, which resulted in a jury verdict of a life sentence, meaning life with parole, rather than death, did not violate the defendant’s right against double jeopardy. At the capital murder sentencing hearing on the matter of whether the defendant should be sentenced to death, the defendant was not put in jeopardy on the issue of sentence enhancement based on recidivism. Hoover v. State, 552 So. 2d 834, 1989 Miss. LEXIS 439 (Miss. 1989).

The constitutional principles of double jeopardy are not violated by the “double use” of the pecuniary gain factor in elevating a murder to the status of capital murder because it was perpetrated by one who had been given something of value for the killing pursuant to §97-3-19(2)(d) and in imposing the death penalty for committing murder by pecuniary gain pursuant to §99-19-101(5)(f). Nixon v. State, 533 So. 2d 1078, 1987 Miss. LEXIS 2917 (Miss. 1987), cert. denied, 490 U.S. 1102, 109 S. Ct. 2458, 104 L. Ed. 2d 1012, 1989 U.S. LEXIS 2745 (U.S. 1989), overruled, Wharton v. State, 734 So. 2d 985, 1998 Miss. LEXIS 576 (Miss. 1998).

Where there is a conviction for both capital murder and the underlying felony, at the most the double jeopardy clause is violated only if the charges for the felony murder and the underlying felony are tried separately. Woodward v. State, 533 So. 2d 418, 1988 Miss. LEXIS 492 (Miss. 1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1767, 104 L. Ed. 2d 202, 1989 U.S. LEXIS 2004 (U.S. 1989).

A continuance in a bench trial is not sufficiently like a mistrial in all situations so as to invoke an analysis for determining whether the resumed hearing is barred by double jeopardy. King v. State, 527 So. 2d 641, 1988 Miss. LEXIS 240 (Miss. 1988).

Submission of aggravating circumstance of pecuniary gain did not constitute double jeopardy and fail meaningfully to narrow class of persons eligible for death sentence. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Instructions at penalty phase of trial did not deprive defendant of his constitutional rights by failing adequately to inform jury of their option to recommend life sentence, where court clearly instructed jury that it should weigh mitigating circumstances against aggravating circumstances and if former outweighed latter, then it should return sentence of life imprisonment. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Although the jury in a capital murder trial had already determined beyond a reasonable doubt that defendant had murdered while committing the crimes of robbery and kidnapping, consideration of those aggravating circumstances again in the sentencing phase of the same trial did not constitute double jeopardy as contemplated in the Fifth Amendment of the US Constitution. Wilcher v. State, 448 So. 2d 927, 1984 Miss. LEXIS 1618 (Miss.), cert. denied, 469 U.S. 873, 105 S. Ct. 231, 83 L. Ed. 2d 160, 1984 U.S. LEXIS 369 (U.S. 1984).

A defendant who in 1960 entered a plea of guilty to an indictment for murder and received a life sentence which he was currently serving, following the decision in 1968 of the United States Supreme Court in United States v Jackson, 390 US 570, 20 L Ed 2d 138, 88 5 Ct 1209, filed a petition for a writ of habeas corpus alleging that the death penalty provision of Code 1942 § 2217 of the Mississippi code violated the Fifth and Sixth Amendments of the United States Constitution and § 14 of the Mississippi Constitution. In affirming the denial of the writ, the court held that the Jackson rule was inapplicable to the Mississippi general statute on murder for the reason that an accused entering a plea of guilt to a charge of murder under Code 1942 § 2217 is not assured of not receiving the death penalty: for the trial court cannot be required to accept a guilty plea in a capital case and pronounce a sentence of less than death, but may require a jury trial in which the imposition of the death sentence is within the sole province of the jury. King v. Cook, 211 So. 2d 517, 1968 Miss. LEXIS 1267 (Miss. 1968).

The 1968 decision of the United States Supreme Court in United States v Jackson, 390 US 570, 20 L Ed 2d 138, 88 S Ct 1209,is not retroactive and was not applicable to a guilty plea entered in 1960 by a defendant charged with murder who, at the time of the decision of Jackson, was serving a life sentence in the penitentiary as a consequence. King v. Cook, 211 So. 2d 517, 1968 Miss. LEXIS 1267 (Miss. 1968).

18. – Habitual offenders, double jeopardy.

The use of the defendant’s prior convictions for driving under the influence of alcohol (DUI) to obtain a conviction for felony DUI did not violate the double jeopardy clause. Smith v. State, 736 So. 2d 381, 1999 Miss. App. LEXIS 43 (Miss. Ct. App. 1999).

Post-arrest statements made by a defendant which are inconsistent with his trial testimony may be used by the state against him during cross-examination; to hold otherwise would not only afford the defendant the right not to incriminate himself by remaining silent but would also afford him the right not to incriminate himself by making voluntary statements which are inconsistent with his testimony at trial, which would ultimately grant a defendant who chooses to be a witness in his own defense more protection than that granted to any other witness. Puckett v. State, 737 So. 2d 322, 1999 Miss. LEXIS 122 (Miss. 1999).

Mississippi law does not require law enforcement personnel to cease with a lawful interview and re-advise the defendant that he has the right to a lawyer or inform him that there is a lawyer outside where the defendant himself has not requested or otherwise indicated that he wished to speak with an attorney before further questioning. McGilberry v. State, 741 So. 2d 894, 1999 Miss. LEXIS 196 (Miss. 1999), cert. denied, 529 U.S. 1006, 120 S. Ct. 1273, 146 L. Ed. 2d 222, 2000 U.S. LEXIS 1788 (U.S. 2000).

The defendant’s privilege against self-incrimination was not violated when the prosecutor argued that the defendant “pled not guilty. And he doesn’t have to do a thing. He sits there. We have to prove the case,” since (1) such argument was made in response to the defendant’s argument that the state prolonged the trial by putting forth unnecessary or redundant evidence and attempted to place the blame for his crimes on those who failed to obtain proper treatment for him, and (2) the jury was given several instructions which clarified any confusion resulting from the arguments. McGilberry v. State, 741 So. 2d 894, 1999 Miss. LEXIS 196 (Miss. 1999), cert. denied, 529 U.S. 1006, 120 S. Ct. 1273, 146 L. Ed. 2d 222, 2000 U.S. LEXIS 1788 (U.S. 2000).

The prohibition against double jeopardy did not preclude the State at resentencing from enhancing a defendant’s life sentence for murder with the habitual offender statute where the defendant was initially sentenced to death and therefore his status as an habitual offender was not determined until after the sentencing trial on remand; since the defendant’s status as an habitual offender had not previously been determined, the finding of habitual offender status on resentencing was not barred by double jeopardy. Gray v. State, 605 So. 2d 791, 1992 Miss. LEXIS 481 (Miss. 1992).

A habitual offender’s sentencing hearing, as a trial on the sentence, constitutes jeopardy for the purpose of the constitutional right against double jeopardy. Ellis v. State, 520 So. 2d 495, 1988 Miss. LEXIS 153 (Miss. 1988).

Remanding case for resentencing under habitual offender statute would offend double jeopardy clause because habitual offender sentencing is itself trial on eligibility for harsher sentence and therefore constitutes jeopardy. Young v. State, 507 So. 2d 48, 1987 Miss. LEXIS 2442 (Miss. 1987).

Indictment charging sale of drugs did not violate prohibition against double jeopardy by including the information that the defendant had been previously convicted on a separate charge since, in order for punishment to be enhanced for a second conviction (as provided for in §41-29-147), an indictment authorizing enhanced punishment must include both the principal charge and a charge of the previous convictions. Ellis v. State, 326 So. 2d 466, 1976 Miss. LEXIS 1739 (Miss. 1976).

19. –Reversal of conviction, double jeopardy.

Capital murder defendant’s multiple trials did not violate the Double Jeopardy Clause. Because defendant had not been acquitted, his convictions had not been upheld on appeal, and he had not received multiple punishments, the Double Jeopardy Clause had not been implicated. Flowers v. State, 240 So.3d 1082, 2017 Miss. LEXIS 431 (Miss. 2017).

Defendant’s six trials for the four murders did not violate his rights under the Double Jeopardy Clause because he had not been acquitted, his convictions had not been upheld on appeal, and he had not received multiple punishments, as his first,second, and third trials resulted in convictions that were overturned, and in his fourth and fifth trials the jury was unable to reach a unanimous decision. Because his double jeopardy protections had not been violated, defendant could not assert a due process claim on the same grounds. Flowers v. State, 158 So.3d 1009, 2014 Miss. LEXIS 569 (Miss. 2014), vacated, — U.S. —, 136 S. Ct. 2157, 195 L. Ed. 2d 817, 2016 U.S. LEXIS 3930 (U.S. 2016).

The double jeopardy clause did not bar reprosecution of a defendant for murder following the Supreme Court’s reversal of his conviction where the conviction was reversed on procedural grounds and the defendant was allowed to plead guilty to lesser offenses pursuant to the bargain, but the defendant subsequently refused to plead guilty to the lesser offenses. The defendant could be prosecuted for the murder under the original indictment since the reversal of his murder conviction on procedural grounds did not constitute a rendering of the case nor a discharge of the defendant, and the defendant’s refusal to plead guilty to the lesser offenses was a breach of the bargain. State v. Danley, 573 So. 2d 691, 1990 Miss. LEXIS 834 (Miss. 1990).

There was no violation of the double jeopardy clause in the retrial of a defendant after reversal of his manslaughter conviction where the reversal was based upon trial error in having forced the defendant’s wife to testify against him and not upon the insufficiency of the evidence; however, retrial for murder was improper and the conviction for murder was properly modified by the Mississippi Supreme Court to a conviction for manslaughter where the defendant had been acquitted of murder at the first trial. Tapp v. Lucas, 658 F.2d 383, 1981 U.S. App. LEXIS 17054 (5th Cir. Miss. 1981), cert. denied, 456 U.S. 972, 102 S. Ct. 2233, 72 L. Ed. 2d 845, 1982 U.S. LEXIS 2077 (U.S. 1982).

20. – Resentencing, double jeopardy.

Reinstatement of defendant’s suspended sentence did not constitute double jeopardy because the trial court did not attempt to impose a greater sentence than that already levied on defendant. Leech v. State, 994 So. 2d 850, 2008 Miss. App. LEXIS 422 (Miss. Ct. App. 2008), cert. dismissed, 999 So. 2d 852, 2009 Miss. LEXIS 50 (Miss. 2009).

Federal district court correctly denied state death row inmate’s habeas corpus petition; the venue chosen for petitioner’s resentencing hearing was proper, even though it was in the county in which the crimes occurred, and even though the trial venue had been changed to a different county due to excessive pretrial publicity, because years had passed since petitioner had been found guilty, and although two selected resentencing jurors had some knowledge of the case, petitioner failed to prove that the resentencing jury was tainted. Holland v. Anderson, 439 F. Supp. 2d 644, 2006 U.S. Dist. LEXIS 46788 (S.D. Miss. 2006).

Defendant did not receive a greater sentence than the one originally imposed and the trial judge could amend a sentence provided that a punishment already partly suffered not be increased; the record did not reflect that defendant was given two sentences for committing one offense, but rather, the result of the first hearing was the supplementation of the terms of post-release supervision, such that the initial modification of defendant’s post-release supervision did not constitute a separate sentence for purposes of double jeopardy. Lambert v. State, 904 So. 2d 1150, 2004 Miss. App. LEXIS 1000 (Miss. Ct. App. 2004).

Constitutional considerations of double jeopardy prevent the assessment of a harsher punishment at resentencing than that already adjudicated as to each count under the Double Jeopardy Clause of the Constitution of the United States. Davidson v. State, 850 So. 2d 158, 2003 Miss. App. LEXIS 493 (Miss. Ct. App. 2003).

It was a violation of the prohibition against double jeopardy for the court to resentence the defendant to a term of 30 years where (1) the defendant was originally sentenced to a term of 20 years, with five years suspended, on condition that he would later give testimony against “any unindicted person in the case,” and (2) the defendant failed to fulfill the condition of his sentence. Johnson v. State, 753 So. 2d 449, 1999 Miss. App. LEXIS 658 (Miss. Ct. App. 1999).

21. Self-incrimination – In general.

There was no evidence that defendant was forced against his will by his attorney to testify. Rowsey v. State, 188 So.3d 486, 2015 Miss. LEXIS 573 (Miss. 2015).

In the absence of the sort of affirmative assurances embodied in the Miranda warnings, it does not violate due process of law for a State to permit cross-examination as to post-arrest silence when a defendant chooses to take the stand; a State is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which post-arrest silence may be deemed to impeach a criminal defendant’s own testimony. Hurt v. State, 34 So.3d 1191, 2009 Miss. App. LEXIS 605 (Miss. Ct. App. 2009).

Although defendant challenged his convictions for fondling a child under Miss. Code Ann. §97-5-23(1) and for sexual battery of a child between the ages of 14 and 16 under Miss. Code Ann. §97-3-95(1)(c) on the ground that the trial court had erred in admitting a statement he made to police that the girls’ acts had been consensual, but defendant conceded that he had not objected to the statement at trial. Defendant’s claim of error did not rise to the level of plain error where the evidence did not support his claim that his sole reason for testifying was to explain the statement; defendant had been given his Miranda warnings two days earlier and was not being questioned at the time he gave the statement; since consent was not an issue in sex crime cases involving children, thus there was no violation of defendant’s self-incrimination privilege or his Miranda rights. Smith v. State, 907 So. 2d 389, 2005 Miss. App. LEXIS 113 (Miss. Ct. App. – 2005), writ of certiorari denied by 910 So. 2d 574, 2005 Miss. LEXIS 452 (Miss. 2005).

Defendant’s capital murder conviction was proper because his Fifth Amendment and Sixth Amendment rights were not violated by the prosecutor’s comments during closing arguments. Wide latitude was given to attorneys in making closing arguments and, given the evidence presented, the court could not say that the verdict was occasioned by unjust prejudice. Davis v. State, 914 So. 2d 200, 2005 Miss. App. LEXIS 269 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 746 (Miss. 2005), cert. denied, 549 U.S. 856, 127 S. Ct. 133, 166 L. Ed. 2d 98, 2006 U.S. LEXIS 6743 (U.S. 2006).

Trial court’s refusal to allow defendant’s testimony from former murder prosecution to be read into evidence at current trial for same murder did not constitute error, despite defendant’s contention that he was over 73 years old, had several serious physical problems, was on numerous medications that affected his mental abilities, and had testified at his speedy trial hearing to the effect of his memory loss; defendant declined court’s offer to present testimony recorded at previous trial if his memory failed him, and instead invoked his Fifth Amendment right to not testify. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Social worker’s interview of defendant to investigate allegations of sexual battery was not “custodial interrogation”; social worker was not law enforcement official, and defendant voluntarily went to his office, could have left at any time, and was thus not in “custody.” Hennington v. State, 702 So. 2d 403, 1997 Miss. LEXIS 637 (Miss. 1997).

Mere investigation by social worker in noncustodial setting does not require alleged abuser to be advised of Miranda rights. Hennington v. State, 702 So. 2d 403, 1997 Miss. LEXIS 637 (Miss. 1997).

A trial judge does not have a duty to inform a witness of the privilege against self-incrimination. Moore v. Moore, 558 So. 2d 834, 1990 Miss. LEXIS 59 (Miss. 1990).

In a prosecution for aggravated assault on a law enforcement officer, the trial court properly admitted into evidence an incriminating oral statement made by the defendant to his cellmate, a prison trusty, although the defendant had not been advised of his Fifth Amendment rights at the time, where there was no evidence to support the argument that the cellmate had interrogated the defendant when the incriminating statements were made or that he had acted as an agent of law enforcement officials or that he had been planted in the cell for the purpose of hearing incriminating statements. Mansell v. State, 403 So. 2d 871, 1981 Miss. LEXIS 2187 (Miss. 1981).

Where the record revealed that all persons who wanted to do business with the defendant were impliedly invited to approach the house in which he was staying along a circular driveway to a point where the defendant met law enforcement officers to ascertain what he could do for them, and where the officers purchased and received from the defendant a bottle of intoxicating liquor but made no search of the person or premises of the defendant, the testimony of the officers was not inadmissible on the ground that the purchase was an illegal search or that their testimony was in effect a method of requiring the defendant to testify against himself. Lyons v. State, 195 So. 2d 91, 1967 Miss. LEXIS 1438 (Miss. 1967).

Where accused, after having been arrested but before being formally charged with murder, voluntarily testified before a coroner’s jury that he had accidentally killed his wife while shooting in self-defense at his father-in-law, and none of this testimony was admitted in the trial on the merits, accused’s constitutional privilege not to incriminate himself was not violated. Dykes v. State, 232 Miss. 379, 99 So. 2d 602, 1957 Miss. LEXIS 484 (Miss. 1957).

22. –Statutes and court rules, self-incrimination.

Although Rule 3.03(3)(B), Miss. Unif. Crim. R. Cir. Ct. Prac. only requires a judge to inquire and determine whether the defendant understands the maximum and minimum penalties when he or she wishes to plead guilty to the offense charged, trial judges should inform criminal defendants on the record of the minimum and maximum penalties for the charged offense in order to insure that no question ever be raised. Banana v. State, 635 So. 2d 851, 1994 Miss. LEXIS 181 (Miss. 1994).

In a prosecution for driving a motor vehicle while under the influence of intoxicating liquor, the admission into evidence under §63-11-41 of the defendant’s refusal to take a breathalyzer test did not violate the Fifth Amendment to the United States Constitution and Article 3, § 26 of the Mississippi Constitution, even though the defendant was not specifically warned that his refusal could be admitted into evidence against him; the penalty of introducing a refusal serves an important state interest in encouraging defendants to submit to a chemical test, and as the refusal is physical instead of testimonial, its introduction into evidence violates neither the Fifth Amendment nor § 26. Ricks v. State, 611 So. 2d 212, 1992 Miss. LEXIS 819 (Miss. 1992).

Rule requiring each attorney in a criminal case to number his jury instructions and file them with the clerk, and to submit to opposing counsel a numbered copy of the instructions so filed at least 24 hours prior to the time that the case is set for trial, was not an unconstitutional invasion of the defendant’s right against self-incrimination. Vaughn v. Creely, 310 So. 2d 703, 1975 Miss. LEXIS 1908 (Miss. 1975).

23. –Administrative proceedings, self-incrimination.

Defendant’s motion to suppress his confession, contending that his rights under Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments, Miss. Const. Art. 3, §§ 14, 26 and 28, and Miss. Unif. Crim. R. Cir. Ct. Prac. 6.03 were violated was properly denied where a psychiatrist testified that defendant was not so impaired by mental disease or defect as to make him clearly incompetent to make a confession. Further, in defendant’s original direct appeal, he challenged the admission of his confession on five separate grounds and that adverse decision constituted the law of the case. Thorson v. State, 895 So. 2d 85, 2004 Miss. LEXIS 1350 (Miss. 2004), cert. denied, 546 U.S. 831, 126 S. Ct. 53, 163 L. Ed. 2d 83, 2005 U.S. LEXIS 6177 (U.S. 2005).

Privilege against self-incrimination exists in bar disciplinary proceedings, even though no criminal charges are pending against attorney being charged at time, although questions concerning personal history, unrelated to charges in formal complaint, should be answered. Mississippi State Bar v. Attorney L., 511 So. 2d 119, 1987 Miss. LEXIS 2615 (Miss. 1987).

An attorney who takes the witness stand in a disciplinary proceeding against him may, on a question-by-question basis, make valid assertion of the Fifth Amendment privilege as to those questions which would tend to incriminate him of a state or federal criminal offense. Mississippi State Bar v. Attorney-Respondent in Disciplinary Proceedings, 367 So. 2d 179, 1979 Miss. LEXIS 2210 (Miss. 1979).

24. –Pro se defense of action, self-incrimination.

While it was error to not make a determination on whether a father was entitled to appointed counsel before allowing him to proceed pro se, the error was harmless because he was given a fair and adequate hearing, and the presence of an attorney would not have made a difference; the evidence focused on the father’s inability to maintain a relationship with his children while serving a life sentence, and counsel was not necessary to assist him in protecting his right against self-incrimination. Blakeney v. McRee, 188 So.3d 1154, 2016 Miss. LEXIS 87 (Miss. 2016).

A defendant has the constitutional right to make an opening statement pro se without being put under oath and subject to cross examination, and action of trial court preventing him from doing so is reversible error. Trunell v. State, 487 So. 2d 820, 1986 Miss. LEXIS 2444 (Miss. 1986).

The law does not require a defendant to make a choice between proceeding pro se and exercising his right against self-incrimination. He may conduct his entire defense without ever being sworn in as a witness or being subject to cross examination. Trunell v. State, 487 So. 2d 820, 1986 Miss. LEXIS 2444 (Miss. 1986).

A defendant who chooses to argue his case to a jury and at the same time invokes the Fifth Amendment must confine his remarks to the evidence in the record. Thus, in a prosecution for capital murder, a defendant who argued pro se to the jury and clearly went beyond the evidence in the record had to accept as a consequence the prosecution’s comment on his failure to swear to the testimony, since defendant’s remarks constituted a waiver of both the constitutional privilege against self-incrimination and the prohibition against the prosecution from commenting on his failure to testify. Rigdon v. Russell Anaconda Aluminum Co., 381 So. 2d 983, 1980 Miss. LEXIS 2065 (Miss.), cert. denied, 449 U.S. 864, 101 S. Ct. 170, 66 L. Ed. 2d 81, 1980 U.S. LEXIS 3144 (U.S. 1980).

25. –Witnesses, self-incrimination.

Although cross-examination of the victim of an armed robbery regarding his indictment on an aggravated assault charge might have caused the jury to disbelieve the victim’s testimony against defendant, the trial court properly excluded the evidence because the victim had invoked his Fifth Amendment right against self-incrimination and defendant’s Sixth Amendment rights had to yield to the victim’s Fifth Amendment rights. Renfro v. State, 118 So.3d 560, 2013 Miss. LEXIS 150 (Miss. 2013).

Regardless of the availability of defendant’s sister as a witness, where if called she would invoke her Fifth Amendment privilege in that she was also charged with capital murder along with defendant, it was improper to exclude testimony of her father as inadmissible hearsay under Miss. R. Evid. 804 because the statements were admissible as statements against interest in that they were sufficiently against the sister’s penal interest by indicating her intention to murder her husband, they were sufficiently trustworthy, and they were corroborated by other evidence. Edmonds v. State, 955 So. 2d 787, 2007 Miss. LEXIS 349 (Miss.), cert. denied, 552 U.S. 1064, 128 S. Ct. 708, 169 L. Ed. 2d 557, 2007 U.S. LEXIS 12868 (U.S. 2007).

Trial judge did not err in prohibiting the owners from impeaching the witness with his own deposition as the trial judge had previously ruled that the deposition was inadmissible for all purposes and once a witness invoked his Fifth Amendment self-incrimination privilege, his silence did not constitute grounds for impeachment. Gibson v. Wright, 870 So. 2d 1250, 2004 Miss. App. LEXIS 323 (Miss. Ct. App. 2004).

In a case related to defendant’s conviction for gratification of lust, a voluntary statement defendant gave to two police officers was properly admitted because there were no requirements regarding the form in which the statement had to be memorialized. Jordan v. State, 868 So. 2d 1065, 2004 Miss. App. LEXIS 222 (Miss. Ct. App. 2004).

Defendant’s due process rights were not violated by a prosecutor’s question regarding the invocation of the right to remain silent because defense counsel referred to the issue during direct examination; moreover, defendant failed to invoke the right during questioning after an arrest for sexual battery. McCoy v. State, 878 So. 2d 167, 2004 Miss. App. LEXIS 53 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 910 (Miss. 2004).

Because defense counsel, at the very least, had notice of the fact that the mental competency examination would take place, since he signed off on the examination order, the trial court did not err in failing to suppress the inmate’s confessions. Crawford v. State, 867 So. 2d 196, 2003 Miss. LEXIS 755 (Miss. 2003), cert. denied, 543 U.S. 866, 125 S. Ct. 205, 160 L. Ed. 2d 110, 2004 U.S. LEXIS 6519 (U.S. 2004).

Petitioner’s Fifth and Sixth Amendment rights were not violated when doctors, outside the presence of counsel, performed a psychiatric evaluation to determine his ability to stand trial; the doctors advised the petitioner that anything he said could be used against him during the sentencing phase of trial, and they offered to allow the petitioner to call his attorneys. Wilcher v. State, 863 So. 2d 719, 2003 Miss. LEXIS 526 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

Where a police chief testified that defendant “stopped talking” after admitting being in the city where a murder occurred, defendant was not entitled to a mistrial based on the alleged inappropriate comment on his right to remain silent under the Fifth Amendment or Miss. Const. Art. 3, § 26; merely stating that defendant stopped talking did not give grounds for mistrial. Shelton v. State, 853 So. 2d 1171, 2003 Miss. LEXIS 349 (Miss. 2003).

Where a police chief testified that defendant “stopped talking” after admitting being in the city where a murder occurred, defendant was not entitled to a mistrial based on the alleged inappropriate comment on his right to remain silent under the Fifth Amendment or Miss. Const. Art. 3, § 26; merely stating that defendant stopped talking did not give grounds for mistrial. Shelton v. State, 853 So. 2d 1171, 2003 Miss. LEXIS 349 (Miss. 2003).

It was not error for the court not to allow the defendant to continue to question a witness after the witness took the stand and read a statement informing the court that he would not answer any questions from the defense or the state. Woodham v. State, 779 So. 2d 158, 2001 Miss. LEXIS 3 (Miss. 2001).

Criminal defendant must be allowed to call witnesses to stand even though defendant is aware that witness, if called, will invoke Fifth Amendment to every question. Butler v. State, 702 So. 2d 125, 1997 Miss. LEXIS 620 (Miss. 1997).

Witness had Fifth Amendment privilege to refuse to testify in murder trial; witness refused to answer any further questions after merely acknowledging that he knew defendant and another witness who had pled guilty to involvement in crime, it was plausible that witness’ presence at scene of crime could have resulted in charges being brought against him, and witness was subject to prosecution for other crimes that might have been revealed in his testimony. Butler v. State, 702 So. 2d 125, 1997 Miss. LEXIS 620 (Miss. 1997).

Invoking Fifth Amendment privilege against self-incrimination makes the witness unavailable and any hearsay statements from another witness about what the unavailable witness said fall within hearsay exception. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

When witness invokes his Fifth Amendment right, his response is not the proper subject for impeachment. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

A police detective’s testimony concerning the fact that the defendant fainted after he was informed of his Miranda rights was not a violation of the defendant’s constitutional rights since the defendant did not give a statement and the detective did not comment on his silence; the detective’s stating that the defendant fainted was not the same as stating that the defendant refused to testify. Stogner v. State, 627 So. 2d 815, 1993 Miss. LEXIS 531 (Miss. 1993).

Where a defense witness invoked the Fifth Amendment, so that his testimony on direct-examination yielded nothing, the trial court erred in permitting the prosecutor to cross-examine the witness concerning a prior statement made by him; when the prosecutor, through the use of leading questions, parades before the jury the “testimony” of a silent witness, this violates the confrontation clause since the prosecutor cannot take the stand to be cross-examined by the defendant about the silent witness’ “testimony”. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

A defense witness who invoked the Fifth Amendment could not be impeached by the State with respect to a prior statement made by him since the silence of a witness who invokes the Fifth Amendment does not constitute a denial which may be impeached. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

At a hearing on a former wife’s petition to hold her former husband in contempt for failure to pay child support, the wife could not invoke her right against self-incrimination to shield herself from questions on cross-examination as to whether she maintained that the husband had an account at a particular bank, where the wife had voluntarily taken the stand on direct examination and unequivocally identified the signature on the bank account as the husband’s. A party may not testify as to material facts in proceedings which he or she initiated, and later invoke the privilege against self-incrimination on those same matters. Thus, when the wife voluntarily took the stand and testified to material matters on direct examination, she also waived her right against self-incrimination. Wallace v. Jones, 572 So. 2d 371, 1990 Miss. LEXIS 565 (Miss. 1990).

An individual may not be compelled to testify against himself or herself or to offer testimony which might render him or her liable to a criminal prosecution, whether he or she is a witness in a civil, criminal, or quasi-criminal proceeding. Moore v. Moore, 558 So. 2d 834, 1990 Miss. LEXIS 59 (Miss. 1990).

A witness was properly allowed to invoke his Fifth Amendment rights against self-incrimination at a retrial on the ground that his testimony might result in perjury charges brought against him flowing from his testimony at the first trial. Stringer v. State, 548 So. 2d 125, 1989 Miss. LEXIS 354 (Miss. 1989).

A defendant’s right to the testimony of a witness extends only to the limit of the witness’ right against self-incrimination. Smith v. State, 527 So. 2d 660, 1988 Miss. LEXIS 295 (Miss. 1988).

Mere calling of witness by State who invoked Fifth Amendment privilege against self-incrimination would not be sufficient grounds for reversal of capital murder conviction; however, where state was allowed to call other witnesses to testify regarding alleged confession given by that witness, wherein he had detailed events of murder and implicated defendant as party to murder, defendant’s right to confront and cross-examine witnesses presented against her was violated. Witness invoking Fifth Amendment privilege against self-incrimination and refusing to answer any questions regarding confession effectively prevented defendant from conducting meaningful cross-examination in violation of her constitutionally protected rights; fact that defendant was allowed to cross-examine both witnesses concerning circumstances under which confession was given could not substitute for meaningful cross-examination of declarant himself; state’s contention that this evidence was properly admitted to impeach testimony given by witness was rejected, where state was allegedly attempting to impeach witness concerning statement that was accurate and truthful, which was that jury had previously decided whether he had killed decedent; court stated that it knew of no authority where truthful statements were held to be impeachable; instruction to jury that testimony was to be viewed only for impeachment purposes did nothing to diminish importance of this testimony and certainly did not cure constitutional error. Williamson v. State, 512 So. 2d 868, 1987 Miss. LEXIS 2683 (Miss. 1987), Walton v. State, 678 So. 2d 645, 1996 Miss. LEXIS 192 (Miss. 1996).

Witness in capital murder case was improperly compelled to testify in violation of Fifth Amendment privilege against self-incrimination where witness was under indictment for conspiracy to commit arson at time he was called to stand, and charge of arson was so intertwined with murder case being tried that any testimony given by witness concerning murder could have been used in subsequent trial on arson charges. Williamson v. State, 512 So. 2d 868, 1987 Miss. LEXIS 2683 (Miss. 1987), Walton v. State, 678 So. 2d 645, 1996 Miss. LEXIS 192 (Miss. 1996).

The Fifth Amendment privilege is intended to protect the witness and has no proper application when the witness is not in danger of prosecution or conviction. Hentz v. State, 496 So. 2d 668, 1986 Miss. LEXIS 2712 (Miss. 1986).

Requiring witness, who had already pled guilty to the murder, to answer questions concerning that murder did not expose witness to prosecution for the murder and did not infringe upon his Fifth Amendment rights, where the witness’ petition for writ of habeas corpus or, in the alternative, petition to withdraw his guilty plea, came months after the term of court expired wherein he had pled and sentence had been entered. Hentz v. State, 496 So. 2d 668, 1986 Miss. LEXIS 2712 (Miss. 1986).

In a robbery prosecution, the state properly elicited from defendant that his purpose in buying marijuana from the victim was to sell it at a later time, where defendant testified in his own defense that he had purchased the marijuana from the victim, notwithstanding his contention that his Fifth Amendment rights were violated thereby. Davis v. State, 431 So. 2d 468, 1983 Miss. LEXIS 2597 (Miss. 1983).

There was no error in refusing to quash the indictment of a defendant who, when summoned before the grand jury, answered in response to the first question propounded to him that he claimed his rights under the Fifth Amendment and was thereupon immediately excused; for in his appearance before the grand jury he had not testified to a single fact. Byrd v. State, 228 So. 2d 874, 1969 Miss. LEXIS 1408 (Miss. 1969).

In a creditor’s suit seeking disclosure of certain assets, the chancellor did not commit error in holding that the judgment debtor was entitled to assert his privilege against self-incrimination, under statutes making it a crime to remove property subject to liens out of the state or out of the county without consent or with intent to defraud. Ferguson v. Johnson Implement Co., 222 So. 2d 820, 1969 Miss. LEXIS 1560 (Miss. 1969).

An individual who in applying to a surety for a performance and payment bond, obligated himself to furnish financial statements to the surety, and who was adjudged liable to the surety on the bond, was estopped from claiming a privilege against self-incrimination in the surety’s creditor’s suit against the individual, respecting the location of the individual’s assets. Ferguson v. Johnson Implement Co., 222 So. 2d 820, 1969 Miss. LEXIS 1560 (Miss. 1969).

26. –Transactional immunity, self-incrimination.

The constitutional right against self-incrimination requires a transactional immunity grant when a witness is granted immunity from prosecution in exchange for the witness’ agreement to testify before the grand jury. In order to place an individual in a position where he or she has no right to refuse to testify and may be held in contempt if he or she refuses to testify, the prosecution is required to grant immunity from prosecution for the witness’ involvement in the transaction which is the subject of the grand jury investigation and for or on account of any transaction, matter or thing concerning which the witness may testify or produce evidence. Moreover, no testimony or evidence produced by the witness, nor any information directly or indirectly derived from such testimony or evidence, may be used against the witness in any criminal prosecution, except perjury. Only such broad immunity will make the individual as secure as if he or she had remained silent. Wright v. McAdory, 536 So. 2d 897, 1988 Miss. LEXIS 589 (Miss. 1988).

27. –Privilege, self-incrimination.

Where defendant confessed to participating in the wife’s plan to murder her husband, the victim’s wife invoked the Fifth Amendment and therefore was an unavailable witness at trial; it was error for the circuit court to accept her blanket invocation of her privilege against self-incrimination without making a searching inquiry into what her testimony might be. Edmonds v. State, 2007 Miss. LEXIS 7 (Miss. Jan. 4, 2007), op. withdrawn, sub. op., 955 So. 2d 787, 2007 Miss. LEXIS 349 (Miss. 2007).

A father in a child support proceeding would be required to assert his claim of privilege against self-incrimination on a question by question basis with respect to questions regarding his tax returns, and would be required to tender sufficient information to allow the court to make an informed decision concerning the claim of privilege. Harrell v. Duncan, 593 So. 2d 1, 1991 Miss. LEXIS 979 (Miss. 1991).

In a prosecution for capital murder in which, when pressured to admit that he had acted alone and without an accomplice, defendant twice replied “I prefer not to speak on that,” defendant effectively invoked his privilege against further self-incrimination under the Fifth Amendment, and, because his request was not scrupulously honored, his subsequent incriminating statements were, as a matter of law, unconstitutionally obtained and should not have been received in evidence against him at trial. Jones v. State, 461 So. 2d 686, 1984 Miss. LEXIS 2009 (Miss. 1984).

28. –Request for counsel, self-incrimination.

Defendant’s statement to police officers during an interrogation should have been suppressed because the State of Mississippi failed to adequately prove that defendant initiated a conversation with the police officers after defendant invoked defendant’s right to have counsel present, and, even if defendant did initiate the conversation, the State failed to prove beyond reasonable doubt that defendant’s statement was knowing and intelligent. Collins v. State, 172 So.3d 724, 2015 Miss. LEXIS 435 (Miss. 2015).

In connection with the right to counsel during questioning, the standard in providing counsel does not depend on the expediency with which a law enforcement officer may secure counsel for the accused; any subsequent conversation cannot exceed the bounds of clarifying the accused person’s request. Downey v. State, 144 So.3d 146, 2014 Miss. LEXIS 389 (Miss. 2014).

When defendant stated that she had an attorney and “could use him,” all interrogation was required to cease except questioning for the purpose of clarifying the request for counsel, but the officer overstepped the limits of proper clarification by emphasizing the amount of time and difficulty that would be involved in obtaining counsel for defendant, and the officer’s persistence infringed on defendant’s right to cease the interrogation; because defendant invoked her right to counsel and the officer improperly continued questioning her, her rights to an attorney and against self-incrimination were violated. Downey v. State, 144 So.3d 146, 2014 Miss. LEXIS 389 (Miss. 2014).

Trial court manifestly erred in failing to suppress defendant’s statement to the police because the police subjected defendant to interrogation after he had invoked his right to counsel, and the State failed to prove that defendant’s waiver of rights was knowing, intelligent, and voluntary. Benjamin v. State, 116 So.3d 115, 2013 Miss. LEXIS 322 (Miss. 2013).

In a case in which defendant argued that the trial court should have suppressed her statements because they were taken in violation of her constitutional right to counsel. The record supported a finding that defendant received the Miranda warning, that she knowingly and intelligently waived the rights, and that she freely and voluntarily made the statements, and, pursuant to the Davis decision, she failed to make an unambiguous, unequivocal request for an attorney. Barnes v. State, 30 So.3d 313, 2010 Miss. LEXIS 104 (Miss. 2010).

Confronting a suspect with the incriminating evidence compiled against him after he has invoked his right to counsel, and without any initiation on the part of the suspect, is precisely the kind of psychological ploy that definition of interrogation in Innis was designed to prohibit. Pannell v. State, 7 So.3d 277, 2008 Miss. App. LEXIS 550 (Miss. Ct. App. 2008), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 154 (Miss. 2009).

Defendant’s right to counsel was violated by police-initiated interrogation after he asserted his right to counsel because an officer showed defendant the evidence file in an attempt to have him reconsider his request for counsel; a tactic that proved successful as defendant was not prompted to speak until he reviewed the evidence. Because the actions of the officer constituted police-initiated custodial interrogation, a valid waiver could not be established simply by showing that defendant responded to the interrogation. Pannell v. State, 7 So.3d 277, 2008 Miss. App. LEXIS 550 (Miss. Ct. App. 2008), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 154 (Miss. 2009).

Defendant’s capital murder convictions were proper where his Fifth, Sixth, and Fourteenth Amendment rights to counsel and to remain silent were not violated. He made no objection at trial; there was no testimony concerning defendant’s use of counsel or his right to remain silent; and the State’s questioning was designed solely to elicit a chronological version of the events involved in the investigation of the murders not the fact that the defendant requested an attorney during the State’s investigation. Rubenstein v. State, 2005 Miss. LEXIS 789 (Miss. Dec. 1, 2005), op. withdrawn, 2006 Miss. LEXIS 424 (Miss. Aug. 10, 2006), sub. op., 941 So. 2d 735, 2006 Miss. LEXIS 411 (Miss. 2006).

Defendant’s conviction for capital murder was proper where he was not denied his right to counsel because, at the time of his confession, he was merely a suspect who had been brought to the sheriff’s department for questioning and thus, his U.S. Const. amend. VI right to counsel had not yet attached. Further, as his confession occurred during a custodial interrogation, he had a U.S. Const. amends. V and XIV right to have counsel present, but the lower court found the testimony of the officers that defendant had not invoked his right to counsel more credible than defendant’s assertion that he had done so. Brink v. State, 888 So. 2d 437, 2004 Miss. App. LEXIS 559 (Miss. Ct. App.), cert. denied, 888 So. 2d 1177, 2004 Miss. LEXIS 1475 (Miss. 2004), cert. denied, 544 U.S. 986, 125 S. Ct. 1858, 161 L. Ed. 2d 744, 2005 U.S. LEXIS 3129 (U.S. 2005).

When counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney; if the accused indicates in any manner that he wishes access to counsel, interrogation without counsel is allowed only if the accused himself initiates it; waiver of Fifth Amendment protections after counsel has been requested is not foreclosed, provided the accused has initiated the conversation or discussions with the authorities; defendant’s voluntary statement after requesting counsel, that he had dug a deep hole for himself, was admissible. Randolph v. State, 852 So. 2d 547, 2002 Miss. LEXIS 2 (Miss. 2002).

Requesting assistance of counsel at an initial appearance or bail hearing to defend a pending charge is not the same type of invocation of counsel contemplated by the Fifth Amendment Miranda-Edwards interest against compulsory self-incrimination, which is associated with police-initiated custodial interrogations; in order to invoke the Fifth Amendment right against compulsory self-incrimination, some “expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police” is required. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

An accused invoked her Fifth Amendment right to counsel at the time of her arrest when she asked for an attorney and stated that she was not going to sign any papers or answer any questions without having a lawyer present; the accused invoked her Sixth Amendment right to counsel and the state counterpart right secured by Article 3, § 26 of the Mississippi Constitution at her initial appearance when she indicated a desire for representation and an interest in contacting her family to ascertain their progress in hiring a lawyer for her. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

A trial court erred in admitting a defendant’s confession evidence since the confession was tainted by the constitutional violation of the defendant’s Sixth Amendment right to counsel and rights secured by Article 3, § 26 of the Mississippi Constitution, where the defendant “waived her rights” and made the confession after a sheriff department investigator and deputy initiated contact with her within less than 4 hours after she invoked the right to counsel at her initial appearance; the confession was also tainted by violation of the defendant’s Fifth and Fourteenth Amendment rights since the defendant had also requested a lawyer and declined to waive any rights at the time of her arrest. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

When an accused makes an equivocal statement suggesting a request for counsel, the interrogation may only continue “on the narrow road” to ascertain the meaning of the equivocal statement. The interrogating officer has an affirmative duty to attempt to clarify the request before proceeding with the substance of the interrogation; the officer’s subsequent finding will determine whether or not interrogation may continue. Kuykendall v. State, 585 So. 2d 773, 1991 Miss. LEXIS 647 (Miss. 1991).

Once an accused has requested an attorney, it is improper for either the same or another law enforcement officer to question the accused about his or her criminal conduct. If the accused indicates in any manner at any time prior to or during questioning that he or she wishes to remain silent or to have access to counsel, the officers must cease interrogation. When the accused asks for counsel, the officers may not resume interrogation until counsel has been provided, except where the accused voluntarily reinitiates the discussion of the charges. If the accused requests access to counsel, all officers of the prosecution force are bound thereby, including those who have no actual knowledge of the request. Kirkland v. State, 559 So. 2d 1046, 1990 Miss. LEXIS 200 (Miss. 1990).

A defendant’s confession should not have been admitted into evidence where the confession was obtained by law enforcement officers after the defendant made a request for an attorney to the justice court judge who was considering binding him over to await the action of the grand jury, and one of the officers heard the defendant’s request. Although the defendant may only have meant that he wanted a lawyer for court proceedings and did not want a lawyer to advise him before being questioned about the crime, the officers did not seek to make such a determination, but simply proceeded to question the defendant, knowing that he was a cocaine addict and to some extent, because of such addiction, judgment-impaired at the time. No intelligent, knowing waiver of the right to counsel, which the defendant had expressed to the justice court judge, could be found from an officer testifying that he simply orally gave the defendant the Miranda warning. Kirkland v. State, 559 So. 2d 1046, 1990 Miss. LEXIS 200 (Miss. 1990).

Admission of written statement into evidence violated defendant’s constitutional rights where, after Miranda rights were read, father of defendant informed police that attorney was desired and that no statement would be made until one was present. After this right had been invoked, officer continued questioning at which point defendant gave oral statement, which was reduced to writing following day. Prosecution could not show that defendant understood and waived his rights where officer stated that Miranda rights were read to him and defendant was asked if he understood it, to which he replied “yes”, but rights were not discussed with defendant. Impermissible questioning which occurred in police station after defendant had invoked right to counsel bears on admissibility of written statement which was obtained following morning. Reuben v. State, 517 So. 2d 1383, 1987 Miss. LEXIS 2935 (Miss. 1987).

Statement made by defendant to deputy sheriff, in response to questioning, after defendant had requested a lawyer but before he had arrived, was not admissible by the state on its case in chief against defendant for murder; but, since the statement was not a product of coercion or promises, it was admissible to impeach defendant’s credibility as a witness. Murphy v. State, 336 So. 2d 213, 1976 Miss. LEXIS 1507 (Miss. 1976), cert. denied, 429 U.S. 1076, 97 S. Ct. 819, 50 L. Ed. 2d 795, 1977 U.S. LEXIS 559 (U.S. 1977).

29. –Request for mental health or spiritual advisor, self-incrimination.

A defendant’s Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel were not violated by the admission of his confession into evidence, even though the confession was obtained after the defendant initially refused to sign a waiver of rights form and had stated that he would not sign anything until he talked to his mental health counselor. The defendant’s refusal to sign the waiver of rights form was not a per se invocation of his Fifth Amendment rights. Additionally, the defendant’s request for a mental health counselor was not a per se invocation of his Fifth Amendment rights; a request for someone other than an attorney does not invoke a defendant’s Fifth Amendment rights, and a mental health counselor is not qualified to protect a defendant’s Fifth Amendment rights. Similarly, neither the defendant’s request to speak to his mental health counselor nor his temporary refusal to sign the waiver form constituted a request for counsel so as to invoke his Sixth Amendment right. Mohr v. State, 584 So. 2d 426, 1991 Miss. LEXIS 481 (Miss. 1991).

30. –Failure to testify generally, self-incrimination.

Alleged improper comment on a defendant’s right to remain silent under the Fifth Amendment is reviewed for harmless error. Smith v. State, 848 So. 2d 195, 2003 Miss. App. LEXIS 350 (Miss. Ct. App. 2003).

Prosecution is prohibited from making direct comment, or reference by innuendo or insinuation, to defendant’s failure to testify on his or her own behalf. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

31. –Comment by counsel on failure to testify, self-incrimination.

Defendant’s capital murder conviction was appropriate because the trial court did not err in not declaring a mistrial after a witness’s comment regarding defendant’s exercise of his right to remain silent. The trial court’s instruction, to which the defense did not object, cured the error of the testimony of the investigator; therefore, the investigator’s comment on defendant’s exercise of his right to remain silent did not constitute abuse of discretion by the trial court, nor reversible error. Birkhead v. State, 2009 Miss. LEXIS 73 (Miss. Feb. 19, 2009).

Prosecutor’s statement “she can’t come here with a straight face and tell you I lied for whatever kind, sweet reason counsel opposite might have you believe” was not a comment on defendant’s failure to testify. The prosecutor simply responded to the comments that defense counsel made during closing argument. Teston v. State, 44 So.3d 977, 2008 Miss. App. LEXIS 681 (Miss. Ct. App. 2008), cert. dismissed, 44 So.3d 969, 2010 Miss. LEXIS 520 (Miss. 2010).

Prosecutor’s statement was a permissible comment on the absence of evidence to support defendant’s defense as the prosecutor’s statement neither referred to defendant’s failure to testify, nor by masked implication suggested defendant’s silence was evidence of guilt; therefore, the circuit court did not abuse its discretion in overruling defendant’s motion for a mistrial. Dora v. State, 986 So. 2d 917, 2008 Miss. LEXIS 308 (Miss. 2008), cert. denied, 555 U.S. 1142, 129 S. Ct. 1009, 173 L. Ed. 2d 302, 2009 U.S. LEXIS 780 (U.S. 2009).

Where the prosecutor in no way, either directly or inferentially, put a negative spin on the fact that the defendant exercised his constitutional right not to testify, but merely addressed defendant’s failure to present any case at all, the prosecutor did not violate Miss. Const. Art. 3, § 26 and the Fifth Amendment in her closing arguments, and no error was committed by the trial court in denying defendant’s motion for a mistrial. Wright v. State, 958 So. 2d 158, 2007 Miss. LEXIS 202 (Miss.), cert. dismissed, 964 So. 2d 508, 2007 Miss. LEXIS 501 (Miss. 2007).

Denial of the inmate’s petition for postconviction relief pursuant to Miss. Code Ann. §§99-39-1 et seq., was appropriate in part because his Fifth Amendment right against self-incrimination was not violated since the prosecutor’s comment was a fair response to the defense’s claim that the state failed to call some witnesses who could have been helpful to the jury; the argument at issue did not specifically mention the inmate or refer to his failure to testify. Turner v. State, 953 So. 2d 1063, 2007 Miss. LEXIS 2 (Miss. 2007).

Statements by the prosecutor during cross-examination of a witness and during his closing statements did not warrant a mistrial because the remark had not created negative inferences based upon defendant’s choice to exercise his right not to testify. It was clear from the context of the sentences that the prosecutor was referring to the attorneys and not defendant. Foley v. State, 914 So. 2d 677, 2005 Miss. LEXIS 586 (Miss. 2005).

Court rejected husband’s claim that the State’s closing remark that neither parent had offered an adequate explanation of how the child was injured violated his Fifth Amendment right not to testify in his own defense because the statements did not penalize the husband for asserting his constitutional privilege but rather were comments on the husband and wife’s lack of a defense. Not every comment on the absence of a defense or on the defense presented is equivalent to a comment on the defendant’s failure to testify. Scarbough v. State, 893 So. 2d 265, 2004 Miss. App. LEXIS 1119 (Miss. Ct. App. 2004), cert. denied, 893 So. 2d 1061, 2005 Miss. LEXIS 103 (Miss. 2005).

In the mother and stepfather’s appeal of their convictions for felonious child abuse, the State’s comments during closing argument did not violate the stepfather’s right under the Fifth Amendment and Miss. Const. Art. 3, § 26 not to be compelled to be a witness against oneself, which included the right not to have the prosecution make any comment upon a defendant’s exercise of that right, because the comments were comments on the defense presented, or lack thereof, and not comments on the failure to testify. Not every comment regarding the lack of any defense or upon the defense presented is equivalent to a comment on the defendant’s failure to testify; the State is entitled to comment on the lack of any defense, and such comment will not be construed as a reference to a defendant’s failure to testify by innuendo and insinuation. Scarbough v. State, 2004 Miss. App. LEXIS 910 (Miss. Ct. App. Sept. 14, 2004), op. withdrawn, sub. op., 893 So. 2d 265, 2004 Miss. App. LEXIS 1119 (Miss. Ct. App. 2004).

In a drug case, a prosecutor’s comment to the jury regarding its duty to weigh the testimony of several police officers did not violate defendant’s right not to testify because it was merely directed to a lack of a defense. Stubbs v. State, 878 So. 2d 130, 2004 Miss. App. LEXIS 31 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 936 (Miss. 2004).

State’s comments on defendant’s failure to explain the fact that his shotgun had killed the victim were not improper comments on defendant’s failure to testify, but merely comments on defendant’s failure to put on a successful defense. Cox v. State, 849 So. 2d 1257, 2003 Miss. LEXIS 337 (Miss. 2003).

Where the prosecution asked a question that elicited a response commenting on defendant’s exercise of defendant’s right to remain silent, this infringement upon defendant’s Fifth Amendment right to remain silent was harmless error, because defendant had been identified as the perpetrator by the codefendant, who testified against defendant at trial, and the facts of the crime were largely beyond dispute. Smith v. State, 848 So. 2d 195, 2003 Miss. App. LEXIS 350 (Miss. Ct. App. 2003).

Defendant’s exercise of his Fifth Amendment right not to testify had not been violated by the State’s closing argument; the prosecutor did not comment on defendant’s failure to testify but on his failure to put on a successful defense. Cox v. State, 2003 Miss. LEXIS 103 (Miss. Mar. 13, 2003), op. withdrawn, sub. op., 849 So. 2d 1257, 2003 Miss. LEXIS 337 (Miss. 2003).

Prosecutor did not make any remarks in his closing arguments that violated defendant’s Fifth Amendment right to silence when the prosecutor stated that “defendant is the only one that knows why they let him [the victim] off with just $ 21 dollars.” Hughes v. State, 807 So. 2d 426, 2001 Miss. LEXIS 309 (Miss. 2001).

The defendant’s right against self-incrimination was not compromised by the prosecutor’s reference, in his closing argument, to voluntary statements made by the defendant, notwithstanding the defendant’s contention that a reasonable juror could have viewed these comments as a reference to the fact that he had not testified in his own defense, since the state did not call the jury’s attention to the defendant’s failure to testify at trial. Hill v. State, 774 So. 2d 441, 2000 Miss. LEXIS 277 (Miss. 2000).

In a prosecution for sale of marijuana to an undercover agent in which the defendant implied that the state mistakenly identified him as the person who sold the marijuana, the prosecutor’s comment during closing arguments was a comment on the defendant’s failure to successfully back up the claim of mistaken identity he raised in closing arguments, rather than a comment on his failure to take the stand in his own defense. Heatherly v. State, 757 So. 2d 357, 2000 Miss. App. LEXIS 173 (Miss. Ct. App. 2000).

Government’s exploitation of silence, after government has helped induce that silence by informing defendant of his right to remain silent, violates due process. Pitts v. Anderson, 122 F.3d 275, 1997 U.S. App. LEXIS 25289 (5th Cir. Miss. 1997).

Alternative tests for determining whether prosecutor’s or witness’s remarks constitute comment on a defendant’s silence are whether “manifest intent” was to comment on defendant’s silence or, alternatively, whether character of remark was such that jury would “naturally and necessarily” construe it as comment on defendant’s silence, determining both intent of prosecutor and character of remarks in relevant context. Pitts v. Anderson, 122 F.3d 275, 1997 U.S. App. LEXIS 25289 (5th Cir. Miss. 1997).

Where defendant’s testimony at trial does not deal with same subject matter as his pretrial statement, prosecutor’s remarks on omissions in pretrial statement is considered plea for jury to infer guilt or other negative inferences from defendant’s exercise of his Miranda rights. Pitts v. Anderson, 122 F.3d 275, 1997 U.S. App. LEXIS 25289 (5th Cir. Miss. 1997).

Witness’ invocation of his Fifth Amendment privilege to refuse to testify was not relevant evidence, and thus defense counsel could not refer to such refusal in counsel’s closing argument. Butler v. State, 702 So. 2d 125, 1997 Miss. LEXIS 620 (Miss. 1997).

Even if prosecutor’s statement during closing argument that referred to witness’ testimony, in which witness told defense counsel to ask defendant if he had told witness about committing crime, was improper reference to defendant’s refusal to testify, statement did not require reversal; defense counsel did not object when witness made comment, prosecutor’s remarks could be characterized as summary of witness’ testimony rather than remark on defendant’s failure to testify, evidence supported conviction beyond reasonable doubt without prosecutor’s statement, and comment had almost no persuasive force. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Right not to give compelled testimony is violated by direct statement regarding defendant’s decision not to testify, or comment which could reasonably be construed by jury to be comment about defendant’s failure to testify. Holly v. State, 671 So. 2d 32, 1996 Miss. LEXIS 15 (Miss.), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4179 (U.S. 1996).

Prosecutor did not improperly comment on defendant’s failure to testify during sentencing phase of capital murder trial when he made comments concerning defendant’s credibility, where defendant had testified during guilt phase and stipulated to use of guilt phase testimony during sentencing phase. Holly v. State, 671 So. 2d 32, 1996 Miss. LEXIS 15 (Miss.), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4179 (U.S. 1996).

Prosecutor did not comment on defendant’s failure to testify by stating that sole issue, in prosecution against defendant for arson, was whether defendant recruited arsonist to burn building on the day in question. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

Prosecutor did not comment on defendant’s failure to testify by pointing out that not one defense witness testified that prosecution witness was lying. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

Prosecutor did not comment on defendant’s failure to testify by stating that no evidence was presented, in prosecution against defendant for arson, that arsonist, allegedly recruited by defendant to burn building on the day in question, was a professional criminal; rather, comment merely referred to paucity of evidence supporting defense theory that arsonist burned building to get revenge on defendant. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

Prosecutor did not comment on defendant’s failure to testify by stating, during closing argument in prosecution against defendant for arson, that it was not likely that government witness fabricated his testimony, in that if he had, he would have fabricated a better story; rather, comment merely referred to paucity of evidence supporting defense theory witness was publicity seeker who would fabricate testimony. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

Prosecutor did not comment on defendant’s failure to testify by stating, during closing argument in prosecution against defendant for arson, that there was no testimony supporting defense theory that defendant could not have committed the crime inasmuch as he was doctor who derived sense of closeness from the community because he was “their” doctor; rather, comment merely referred to paucity of evidence supporting that defense theory. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

Prosecutor did not comment on defendant’s failure to testify by stating, during closing argument in prosecution against defendant for arson, that there was no testimony supporting defense theory that arsonist was blackmailing defendant; rather, comment merely referred to fact that blackmail theory was put forth by defense attorneys rather than by defense witnesses. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

Prosecution did not improperly comment on capital murder defendant’s failure to testify, when he stated that accomplice’s testimony regarding a ripped shirt was the “only testimony” and the “only reliable information” made available; reading of full remarks made it plain that prosecutor was simply summarizing account of night’s events as told by accomplice and rebutting defense efforts to show that accomplice was lying. Walker v. State, 671 So. 2d 581, 1995 Miss. LEXIS 494 (Miss. 1995), cert. denied, 519 U.S. 1011, 117 S. Ct. 518, 136 L. Ed. 2d 406, 1996 U.S. LEXIS 7236 (U.S. 1996).

Prosecutor did not impermissibly comment upon failure of capital murder defendant to testify when he told jury, following defendant’s speech to jury, that “for 11 months [defendant] had wanted to say something” and “if all he had to say was what he said in those less than 2 minutes he stood here before you, I can see why he hasn’t bothered until now”; prosecutor’s remarks were in direct response to defendant’s attempt to show some degree of remorse. Walker v. State, 671 So. 2d 581, 1995 Miss. LEXIS 494 (Miss. 1995), cert. denied, 519 U.S. 1011, 117 S. Ct. 518, 136 L. Ed. 2d 406, 1996 U.S. LEXIS 7236 (U.S. 1996).

Prosecutor did not impermissibly comment on defendant’s failure to take the stand during resentencing hearing in capital murder case when he attempted to question witness about defendant’s confession given during his guilt phase testimony; trial court refused to allow prosecution to question witness as to defendant’s earlier testimony, and at time, defendant had not informed trial court he would not testify during sentencing phase. Russell v. State, 670 So. 2d 816, 1995 Miss. LEXIS 617 (Miss. 1995), cert. denied, 519 U.S. 982, 117 S. Ct. 436, 136 L. Ed. 2d 333, 1996 U.S. LEXIS 6884 (U.S. 1996), cert. dismissed, 520 U.S. 1249, 117 S. Ct. 2406, 137 L. Ed. 2d 1064, 1997 U.S. LEXIS 3537 (U.S. 1997).

Prosecutor is prohibited from commenting on defendant’s failure to testify, whether by direct comment or by innuendo and insinuation. Jones v. State, 669 So. 2d 1383, 1995 Miss. LEXIS 586 (Miss. 1995).

Prosecutorial comment on defendant’s failure to testify is incurable, and defendant is entitled to mistrial; instruction to jury to disregard prosecutor’s comments is insufficient to correct impropriety. Jones v. State, 669 So. 2d 1383, 1995 Miss. LEXIS 586 (Miss. 1995).

Defendant’s constitutional interest in privilege against compelled self-incrimination is balanced on case-by-case basis against rule allowing attorneys wide latitude in making closing arguments, except where attorney makes direct reference to defendant’s failure to testify. Jones v. State, 669 So. 2d 1383, 1995 Miss. LEXIS 586 (Miss. 1995).

Prosecutor may comment on lack of any defense, and such comment is not construed as reference to defendant’s failure to testify through innuendo and insinuation. Jones v. State, 669 So. 2d 1383, 1995 Miss. LEXIS 586 (Miss. 1995).

Whether prosecutorial comment is improper comment on defendant’s failure to testify is determined on facts and circumstances of each case; question is whether comment can reasonably be construed as comment upon failure of defendant to take stand. Jones v. State, 669 So. 2d 1383, 1995 Miss. LEXIS 586 (Miss. 1995).

Prosecutor did not make improper comments on defendant’s failure to testify, and defendant was thus not entitled to mistrial, when prosecutor commented about what defendant might or might not have said to arresting officer, objected to defense counsel’s statement that defendant was a family man who should be sent home to his family, and noted that jury had not heard any proof about where defendant was going if jury did not convict him. Jones v. State, 669 So. 2d 1383, 1995 Miss. LEXIS 586 (Miss. 1995).

A prosecutor’s remarks during the penalty phase of a capital murder prosecution did not constitute an improper comment on the defendant’s failure to testify where the prosecutor stated that the defendant “showed no compassion, but would send a lawyer up here and ask you for compassion,” since the argument pointed out the lack of a mitigation defense presented by the defendant, and that he was reduced to sending his lawyer in to plead for his life after all else had failed. Davis v. State, 660 So. 2d 1228, 1995 Miss. LEXIS 287 (Miss. 1995), cert. denied, 517 U.S. 1192, 116 S. Ct. 1684, 134 L. Ed. 2d 785, 1996 U.S. LEXIS 3101 (U.S. 1996).

The prosecutor’s closing argument in the guilt phase of a capital murder prosecution did not constitute an improper comment on the defendant’s right to remain silent following arrest where the prosecutor, while discussing a county jail inmate’s testimony as to statements made by the defendant while he was in the jail, referred to the relationship between the defendant and the witness, and described the circumstances under which the statements were made. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

A prosecutor’s closing argument in a capital murder case did not constitute a comment on the defendant’s failure to testify at trial, in spite of the defendant’s argument that the prosecutor’s comments highlighted the fact that the only people alive who could have testified as to the events surrounding the murders were the defendant and his accomplice, where the prosecutor merely stated that the defendant and his accomplice saw to it that there were no eyewitnesses, and that “people who kill their victims and kill their eyewitnesses cannot be set free.” Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

In the sentencing phase of a capital murder prosecution, the State’s closing argument did not constitute a comment on the defendant’s failure to take the witness stand in his own defense where the State made the following argument: “Do you think she was suffering? Do you think that’s cruel and atrocious, and what’s even more than that, what do you think was running through [defendant’s] head as he sat through watching her gag on her own blood? What do you think he was thinking?” Thorson v. State, 653 So. 2d 876 (Miss. 1994), reh’g denied (Miss. Apr. 20, 1995).

A prosecutor’s remarks during closing argument did not constitute improper comment on the defendant’s decision not to testify where the prosecutor did not comment on the defendant’s failure to take the stand, but merely attempted to turn the jury’s attention to the defendant’s confession to the police which had been admitted into evidence. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

A prosecutor’s comments on the defendant’s failure to testify reached a constitutional dimension so egregious that failure on the part of the defense counsel to make a proper objection either at trial or in his motion for a new trial did not waive the error where the prosecutor made 4 separate statements telling the jury that the State’s witness’ testimony was “unopposed,” “unimpeached,” “unrebutted,” and that there was “no evidence whatsoever toward their unreliability.” Whigham v. State, 611 So. 2d 988, 1992 Miss. LEXIS 821 (Miss. 1992).

A prosecutor did not improperly comment during closing argument on the defendant’s right to remain silent where the prosecutor remarked that the victim could not talk because she was dead and stated that only the defendant and God knew what happened, but he did not observe the defendant’s silence during trial; the prosecutor’s comments would be a reference to the defendant’s failure to testify only if innuendo and insinuation were employed. Alexander v. State, 610 So. 2d 320, 1992 Miss. LEXIS 580 (Miss. 1992).

A prosecutor improperly commented during closing argument on a capital murder defendant’s failure to testify where the prosecutor stated that the defendant “hasn’t told you the whole truth yet,” that “you still don’t know the whole story,” and that the defendant was the only person alive who could give the whole story. Butler v. State, 608 So. 2d 314, 1992 Miss. LEXIS 588 (Miss. 1992).

A prosecutor did not improperly comment on the defendant’s failure to testify when he stated during closing argument: “That’s what you have got before you, and that’s all you have got before you. All the evidence in this case points to one thing and one thing only”; the prosecutor’s comment related to the evidence presented in the trial by both the State and defense as a whole, rather than the failure of the defendant to take the stand. Rogers v. State, 599 So. 2d 930, 1992 Miss. LEXIS 123 (Miss.), overruled in part, Mayfield v. State, 612 So. 2d 1120, 1992 Miss. LEXIS 861 (Miss. 1992).

In a capital murder prosecution in which the defense counsel had argued that “there is only one person who can tell you if a reasonable doubt exists insofar as this case, and that’s each and every one of you,” the prosecutor’s rebuttal constituted an improper comment on the defendant’s failure to testify where it included a statement that “they tell you, there’s one man alive today who can tell you what happened, and I agree with that. There is one person who could tell you what happened and we have... a statement from him. We have a confession, an oral confession, we have a written confession....” Such remarks directed the jury’s attention to the failure of the defendant to take the stand and admit or deny the contents of the confession. Griffin v. State, 557 So. 2d 542, 1990 Miss. LEXIS 50 (Miss. 1990).

A prosecutor’s statement in closing argument that “they” hadn’t bothered to tell the jury what the defendant was doing at a certain location was not an impermissible comment on the defendant’s failure to testify since it was proper for the prosecutor to question the defense’s inability to successfully explain the defendant’s presence in the area where the crime took place, and the prosecutor’s use of the word “they” appeared to be a reference to the defendant’s 2 attorneys rather than the defendant himself. Jimpson v. State, 532 So. 2d 985, 1988 Miss. LEXIS 428 (Miss. 1988).

An assignment of error based on the prosecutor’s comment on the defendant’s failure to testify was not procedurally barred for failure to make a contemporaneous objection because the right not to take the witness stand is a fundamental constitutional right. Livingston v. State, 525 So. 2d 1300, 1988 Miss. LEXIS 223 (Miss. 1988).

Argument that comment by prosecutor, who stated he had observed defendant and saw no remorse in him whatsoever, was made on defendant’s Fifth Amendment privilege against self-incrimination did not constitute reversible error when viewed in light of all evidence. Livingston v. State, 525 So. 2d 1300, 1988 Miss. LEXIS 223 (Miss. 1988).

No breach of constitutional right not to testify occurred where comment by counsel allegedly related to failure of accused to testify was in fact statement which court found had not been intended as reference to defendant’s silence, but was instead merely mention of other parties who had testified. Russell v. State, 506 So. 2d 974, 1987 Miss. LEXIS 2321 (Miss. 1987).

An accused who had failed to testify or to put on proof at his capital murder trial was not entitled to a mistrial because of remarks by prosecutor in closing argument asking jury to recall defense’s assertion in opening statement as to witnesses to be called. West v. State, 485 So. 2d 681, 1985 Miss. LEXIS 2445 (Miss. 1985), cert. denied, 479 U.S. 983, 107 S. Ct. 570, 93 L. Ed. 2d 574, 1986 U.S. LEXIS 4897 (U.S. 1986).

An accused sentenced to death on a capital murder charge was denied a fair trial by prosecutor’s comments in closing argument as to accused’s failure to testify, and by defense counsel’s attempted “explanation” in closing argument as to the reason his client had failed to testify. West v. State, 485 So. 2d 681, 1985 Miss. LEXIS 2445 (Miss. 1985), cert. denied, 479 U.S. 983, 107 S. Ct. 570, 93 L. Ed. 2d 574, 1986 U.S. LEXIS 4897 (U.S. 1986).

If capital murder defendant gives exculpatory testimony during sentencing phase of trial, prosecutor may comment on defendant’s exercise of right not to testify during prior trials and during penalty phase. Jordan v. State, 464 So. 2d 475, 1985 Miss. LEXIS 1880 (Miss. 1985), vacated, 476 U.S. 1101, 106 S. Ct. 1942, 90 L. Ed. 2d 352, 1986 U.S. LEXIS 2914 (U.S. 1986).

Neither §13-1-9 [repealed] nor defendant’s Fifth Amendment rights were violated by the prosecutor’s comment on the defense’s failure to dispute the state’s evidence, where the defense failed to introduce any evidence at all in a prosecution for drug related crimes, even though they could have presented the testimony of a witness who was present at the time a search of their home was made. Lee v. State, 435 So. 2d 674, 1983 Miss. LEXIS 2704 (Miss. 1983).

In a prosecution for rape, statements made by the prosecutor concerning defendant’s failure to deny guilt when arrested were improper but did not mandate reversal of the conviction where the defense attorney neither asked the trial court to instruct the jury to disregard the statements, nor moved for a mistrial, thereby failing to properly preserve the issue for appeal, and where such error was harmless in view of the overwhelming evidence of defendant’s guilt beyond a reasonable doubt. Austin v. State, 384 So. 2d 600, 1980 Miss. LEXIS 2006 (Miss. 1980).

32. –Comment by counsel on inconsistency of testimony, self-incrimination.

Defendant’s post-arrest statement, that victim “come out on me with a gun,” was sufficiently inconsistent with his trial testimony, that third-party shook defendant’s rifle and shooting was accidental, to establish that prosecutor’s comments on statement were designed and had effect of highlighting arguable inconsistency, rather than commenting improperly on defendant’s exercise of his right to remain silent. Pitts v. Anderson, 122 F.3d 275, 1997 U.S. App. LEXIS 25289 (5th Cir. Miss. 1997).

Where defendant’s postarrest statement addresses same subject matter as his trial testimony and is arguably inconsistent with that testimony, prosecutor’s questions and comments designed to highlight inconsistency do not violate due process. Pitts v. Anderson, 122 F.3d 275, 1997 U.S. App. LEXIS 25289 (5th Cir. Miss. 1997).

Prosecutorial statements that are either intended to or have necessary effect of raising negative inference simply because of defendant’s exercise of his right to remain silent are prohibited, but where prosecutor’s questions and comments are aimed at eliciting explanation for arguably prior inconsistent statement, no due process violation occurs. Pitts v. Anderson, 122 F.3d 275, 1997 U.S. App. LEXIS 25289 (5th Cir. Miss. 1997).

A defendant’s out of court signed statement was properly used to impeach his testimony, though the statement was inadmissible in the State’s case-in-chief because the defendant signed the statement without being informed of his Miranda rights, since the statement was voluntarily given where the defendant was not threatened or mistreated when he made the statement, no one made any promises to him, he was not intoxicated or under the influence of any drugs, and the defendant admitted that he could have stopped talking at any time and could have left the room. Bowen v. State, 607 So. 2d 1159, 1992 Miss. LEXIS 561 (Miss. 1992).

A prosecutor’s question on cross-examination of the defendant, asking if “today is the first time you have told any official the version you’ve given today?”, did not constitute an improper comment on the defendant’s right to remain silent where the defendant, on direct examination, had testified to a version of the events in question that had never before been given to the sheriff’s office and the defendant had given the sheriff four other versions of the story. Once the defendant related this new sequence of events on direct examination, the prosecution was well within its rights on cross-examination to inquire further about the novelty of the story. Shell v. State, 554 So. 2d 887, 1989 Miss. LEXIS 492 (Miss. 1989), rev'd, in part, 498 U.S. 1, 111 S. Ct. 313, 112 L. Ed. 2d 1, 1990 U.S. LEXIS 5501 (U.S. 1990).

33. –Accomplices and codefendants, self-incrimination.

While codefendants’ Fifth Amendment rights would not have been violated by having handwriting exemplars examined by an expert to authenticate a statement allegedly written by the codefendant because the evidence would not have been used as testimonial evidence at trial, there was not a substantial need for expert assistance shown in that nothing in the record indicated that defendant ever attempted to have these statements authenticated by locating someone familiar with the handwriting of the codefendants under Miss. R. Evid. 901(b)(2). Therefore, the trial court did not err in denying defendant’s motion to compel handwriting exemplars. Flora v. State, 925 So. 2d 797, 2006 Miss. LEXIS 49 (Miss.), cert. denied, 549 U.S. 912, 127 S. Ct. 253, 166 L. Ed. 2d 197, 2006 U.S. LEXIS 6127 (U.S. 2006).

Letters written by defendant to accomplice after he had asserted his constitutional rights to silence and to counsel were properly admitted into evidence in capital murder prosecution; accomplice did not produce letters in attempt to get favorable treatment from state given that state was not aware of their existence until after accomplice had pled guilty, there was no evidence that accomplice was acting as agent of state when letters were received, and there was no evidence that accomplice deliberately attempted to elicit incriminating statements from defendant. Brown v. State, 682 So. 2d 340, 1996 Miss. LEXIS 427 (Miss. 1996), cert. denied, 520 U.S. 1127, 117 S. Ct. 1271, 137 L. Ed. 2d 348, 1997 U.S. LEXIS 1821 (U.S. 1997).

Statements made by a defendant’s sister in the defendant’s presence that she intended to get an attorney were not sufficient to trigger the defendant’s right to counsel during police questioning and to preclude any subsequent waiver on his part where the record was devoid of any evidence that the defendant attempted to adopt, or even understood, the statements made by his sister. Lee v. State, 631 So. 2d 824, 1994 Miss. LEXIS 80 (Miss. 1994).

Cross-examination of accomplice was legitimate attempt by prosecutor to impeach his testimony and was not calculated to raise defendant’s silence in jurors’ minds, where comments were directed principally toward accomplice, and not toward defendant’s failure to testify. Monroe v. State, 515 So. 2d 860, 1987 Miss. LEXIS 2764 (Miss. 1987).

Trial court committed reversible error by preventing armed robbery defendant, who contended another had committed the crime, from asking questions, in jury’s presence, concerning such other person’s description and characteristics, of a witness, an accused accessory, who, out of jury’s presence, had refused, on self-incrimination grounds, to answer questions concerning the robbery, but had answered questions concerning the description of the other person. Hall v. State, 490 So. 2d 858, 1986 Miss. LEXIS 2488 (Miss. 1986).

Refusal of the trial court to permit a defendant to continue to ask his codefendant questions with reference to the ownership of articles seized by officers during a search, after the witness had refused to answer questions on the ground that her answers might tend to incriminate her, was proper, contrary to the defendant’s assertion that he had a right to ask her in detail about each article exhibited and obtained in the search. Boring v. State, 253 So. 2d 251, 1971 Miss. LEXIS 1214 (Miss. 1971), cert. denied, 405 U.S. 1040, 92 S. Ct. 1310, 31 L. Ed. 2d 581, 1972 U.S. LEXIS 3074 (U.S. 1972).

34. –Pre-arrest statements of defendant, self-incrimination.

Incriminating statements made by a murder defendant were properly admitted into evidence where the defendant was not under arrest at the time of the questioning, the law enforcement officers were merely seeking information about a missing person, the defendant voluntarily went with the officers to the sheriff’s office, he was free to leave, and he was taken home by an officer when the questioning was over. Thorson v. State, 653 So. 2d 876 (Miss. 1994), reh’g denied (Miss. Apr. 20, 1995).

A defendant was under arrest and was therefore entitled to Miranda warnings where he was taken into custody by a deputy sheriff, he was told to go with the officer and was told that it was a very serious matter, he was not allowed to drive his own truck, and he was never released even though he told the officers no more about his whereabouts at the time of the crime then they had already been told. Although the questioning officer may have assumed that the defendant was not under arrest when he questioned him, that is not the test; if the officer had any intention of questioning the defendant without first giving him the Miranda warnings, it was incumbent upon him to have ascertained clearly from the officer who brought the defendant in that the defendant had not been taken into custody and that there was no reason for the defendant to believe that he was in custody. Bevill v. State, 556 So. 2d 699, 1990 Miss. LEXIS 27 (Miss. 1990).

35. –Statements regarding post-arrest silence, self-incrimination.

Defendant’s right to remain silent was not violated when a police chief testified that defendant declined to interview upon his request because it was not plain, clear, or obvious that the testimony actually referenced post-Miranda silence; the State did not intentionally elicit the chief’s comment, it was the sole reference over the course of defendant’s trial regarding his choice to remain silent, and the State did not suggest to the jury that he was guilty because he declined to interview. Swinney v. State, 241 So.3d 599, 2018 Miss. LEXIS 8 (Miss. 2018).

During defendant’s trial for sexual battery of a child, the State did not impermissibly comment on his initial post-Miranda refusal to speak with investigators prior to his later statement about fondling the victim because the prosecutor’s statement and an officer’s testimony about his prior refusal to speak were simply a recitation of the facts concerning a preceding interview. Beasley v. State, 74 So.3d 357, 2010 Miss. App. LEXIS 681 (Miss. Ct. App. 2010).

Complained of comments and testimony, even if improper, could not be said to amount to plain error in light of the significant circuit split as to whether the use of a defendant’s post-arrest, pre-Miranda silence as substantive evidence of the defendant’s guilt offended the Fifth Amendment; the references to appellant’s post-arrest, pre-Miranda silence did not meet all the elements of the plain-error test in that those references could not be said to be plain, clear, or obvious under the law in Mississippi. Hurt v. State, 34 So.3d 1191, 2009 Miss. App. LEXIS 605 (Miss. Ct. App. 2009).

In an aggravated assault case, defendants’ rights to remain silent under U.S. Const. Amend. V were not violated as the deputy’s statement regarding defendants’ post arrest silence was harmless error in that their silence was not being used against them, and only one reference was made to their intentions to remain silent. Byrd v. State, 977 So. 2d 405, 2008 Miss. App. LEXIS 168 (Miss. Ct. App. 2008).

36. – Noncustodial interrogation, self-incrimination.

Defendant’s convictions for felonious child abuse were appropriate because her statements to a family protection specialist were admissible since defendant was not subjected to custodial interrogation. Defendant was questioned by the specialist, and not the law enforcement officers who accompanied her; during the questioning, defendant was not under arrest, she was in her own home and free to terminate the interview; and nothing in the testimony of defendant or the specialist indicated that defendant believed that she was going to jail rather than temporarily being detained. Clark v. State, 40 So.3d 531, 2010 Miss. LEXIS 410 (Miss. 2010).

Defendant was not under interrogation when he told the detective he had committed the offenses; therefore, his statement was voluntary and not the subject of any interrogation by the detective; therefore, no Miranda warnings were needed, and his Fifth Amendment right to counsel and his right not to incriminate himself were not violated. Alexander v. State, 910 So. 2d 704, 2005 Miss. App. LEXIS 190 (Miss. Ct. App. 2005).

Investigator was not required to inform defendant of the Fifth Amendment rights during two secretly recorded interviews regarding the death of defendant’s stepdaughter because defendant was not in custody; it was irrelevant that defendant was the primary target of a police investigation. Starns v. State, 867 So. 2d 227, 2003 Miss. LEXIS 873 (Miss. 2003).

There was no custodial interrogation where (1) the first contact between the parties was made by the defendant, not the police officer; (2) the officer advised the defendant that he needed to talk with him in person; (3) the defendant was questioned by the officer in his office, not in an interrogation room; (4) officer was in his office with other sheriff’s office employees during regular office hours; (5) the officer, one other sheriff’s office employee, and the defendant were the only people present at the meeting; (6) no force or physical restraint was used to get the defendant to the meeting as he came voluntarily; and (7) the allegations against the defendant, kidnapping and aggravated assault, were discussed, as was his ownership of a .45 caliber pistol which was allegedly involved in those alleged crimes. Godbold v. State, 731 So. 2d 1184, 1999 Miss. LEXIS 55 (Miss. 1999).

A minor has no constitutional right to have his parents present during his interrogation for a capital crime; and a minor’s parents can not assert his constitutional right against self-incrimination on his behalf. Hill v. State, 749 So. 2d 1143, 1999 Miss. App. LEXIS 505 (Miss. Ct. App. 1999).

Defendant’s confession was not rendered involuntary by his IQ where (1) the police officer who advised the defendant of his rights and took his statement testified that he understood his rights and voluntarily waived them, (2) no threats, promises of leniency, or coercion were used, (3) the defendant’s father was present when his son was advised of his rights and, in fact, signed the waiver along with his son, and (4) the judge found that the defendant was capable of understanding the warnings and that his statement was voluntarily, knowingly, and intelligently given. Biggs v. State, 741 So. 2d 318, 1999 Miss. App. LEXIS 238 (Miss. Ct. App. 1999).

The defendant’s statement that he had shot his mother was not made in response to a custodial interrogation or any police action designed to elicit an incriminating response where, after a traffic accident, the defendant was handcuffed and placed in the back of a police car and an officer asked him where he was staying and where his parents were. Greenlee v. State, 725 So. 2d 816, 1998 Miss. LEXIS 300 (Miss. 1998).

Probationer’s discussion with probation officer, after probationer’s release from jail, regarding how probationer came to be arrested on possession charges is not custodial interrogation to which Miranda rights would be applicable. Jones v. State, 481 So. 2d 798, 1985 Miss. LEXIS 2435 (Miss. 1985).

Where homicide victim’s wife saw defendant working on courthouse lawn and stopped to inquire of him whether her husband had lived very long after he was shot, and defendant voluntarily told her he thought victim was dead before he left, and he took the gun and billfold and ran because he was scared, this statement was free and voluntary and admissible in evidence and it was not the result of custodial interrogation as contemplated by Miranda. Glass v. State, 278 So. 2d 384, 1973 Miss. LEXIS 1424 (Miss. 1973).

37. – Custodial interrogation, self-incrimination.

Davis v. State (512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994)) does not require Mississippi to follow the minimum standard that the federal government has set for itself, and the court is empowered by the state constitution to exceed federal minimum standards of constitutionality and more strictly enforce the right to counsel during custodial interrogations. Downey v. State, 144 So.3d 146, 2014 Miss. LEXIS 389 (Miss. 2014).

When the police encourage a parent to pressure a 14-year-old suspect to talk, and the police foster the suspect’s mistaken belief that talking would allow him to avoid a night in jail, the police should know their conduct is reasonably likely to elicit an incriminating response; the tactics used by police that encouraged defendant’s belief that, by talking to the police, he could avoid a night in jail, and that allowed his mother to speak with defendant after instructing her on how he could reinitiate questioning constituted the functional equivalent of interrogation because they were reasonably likely to elicit an incriminating response from the 14-year-old defendant. Benjamin v. State, 116 So.3d 115, 2013 Miss. LEXIS 322 (Miss. 2013).

Where the police used tactics that constituted the functional equivalent of interrogation, because they were reasonably likely to elicit an incriminating response from defendant, defendant was subjected to interrogation after invoking his right to counsel. Benjamin v. State, 116 So.3d 115, 2013 Miss. LEXIS 322 (Miss. 2013).

Defendant was subjected to a custodial interrogation and, therefore, Miranda was required because (1) defendant was handcuffed and questioned under his carport soon after law enforcement officers had executed a search warrant; (2) while various law enforcement officers were going in and out of the house, at least four officers were in the vicinity where defendant was being questioned; and (3) an officer placed a copy of the search warrant in a chair next to defendant so that he could read it and be aware of the situation. Armstead v. State, 978 So. 2d 642, 2008 Miss. LEXIS 169 (Miss. 2008).

38. –Confessions generally, self-incrimination.

By the time defendant arrived to the sheriff ’s department, he had enough time to consider whether to invoke his right to remain silent or ask for counsel. Because defendant’s confessions were not fruit of the poisonous tree, arising from a warrantless arrest, the trial court did not errin admitting defendant’s confessions into evidence. Watts v. State, 223 So.3d 829, 2017 Miss. App. LEXIS 377 (Miss. Ct. App. 2017).

Trial court did not err in not suppressing defendant’s statement to the police that defendant shot a victim in self defense because although defendant’s initial denial of shooting the victim, followed by defendant’s recantation of the denial in the face of a witness’s accusation, which the jury subsequently saw and heard the witness testify to, was prejudicial, defendant would have been convicted beyond a reasonable doubt even without the tainted statement. Walton v. State, 998 So. 2d 1011, 2007 Miss. App. LEXIS 757 (Miss. Ct. App. 2007), aff'd, 998 So. 2d 971, 2008 Miss. LEXIS 572 (Miss. 2008).

Defendant’s convictions for murder, sexual battery, and first degree arson were appropriate because, although the circuit court erred when it admitted his confession into evidence in violation of his Fifth Amendment right because defendant had already requested counsel, the admission was actually harmless in light of the other evidence connecting defendant to the crime, which included his DNA and finger prints that were found at the crime scene. Haynes v. State, 934 So. 2d 983, 2006 Miss. LEXIS 304 (Miss. 2006), cert. denied, 549 U.S. 1306, 127 S. Ct. 1874, 167 L. Ed. 2d 365, 2007 U.S. LEXIS 3602 (U.S. 2007).

Defendant was not denied his various constitutional rights where the court did not impermissibly consider the truthfulness of defendant’s confession in deciding it admissible at a suppression hearing because much of the inquiry into truthfulness occurred as a result of impeaching defendant and attempting to ascertain his credibility. Carter v. State, 956 So. 2d 951, 2006 Miss. App. LEXIS 622 (Miss. Ct. App. 2006), cert. denied, 957 So. 2d 1004, 2007 Miss. LEXIS 302 (Miss. 2007).

In a murder and aggravated assault case, incriminating statements made to police as defendant was being led to a patrol car were not suppressed because they were not the product of an interrogation; defendant made the statements as police were trying to read him his rights, and he was not questioned until after these warnings were given. Wilson v. State, 936 So. 2d 357, 2006 Miss. LEXIS 435 (Miss. 2006).

Defendant’s right against self-incrimination was not violated where the trial court admitted his confession to armed robbery into evidence because four full days had elapsed between the time that defendant took crack cocaine and Lorcet and the time that he confessed; his confession could not be said to be the result of intoxication. Thomas v. State, 936 So. 2d 964, 2006 Miss. App. LEXIS 610 (Miss. Ct. App. 2006).

Refusal of trial judge to hold a pre-trial hearing on the admissibility of certain statements in no way prevented defendant from objecting to the admission of the statements when offered; the ruling simply decided that the trial proceedings would not be halted for a separate pre-trial hearing; nevertheless, had a timely objection been interposed, the appellate court would still find no error, as the record showed no basis for a finding that the confessions had been obtained illegally: law enforcement officials who took the statements from defendant testified that (1) defendant freely and voluntarily made the statements after being advised of Miranda rights and after voluntarily executing a waiver-of-rights form; and (2) they did not use promises or threats to extract the statements from defendant. Conner v. State, 875 So. 2d 253, 2004 Miss. App. LEXIS 403 (Miss. Ct. App. 2004).

Where defendant was charged with capital murder, defendant testified at trial that defendant was not promised, threatened or coerced to give the videotaped statement, and also testified to giving the statement of defendant’s own free will, even though defendant’s father told defendant not to speak to anyone until a lawyer arrived. Based on the totality of the circumstances, defendant’s constitutional rights were not violated because defendant’s statement was given freely without coercion, and the fact that defendant was 18 years old at the time of the arrest had no bearing on defendant’s ability to comprehend the questions and waive defendant’s rights. Jacobs v. State, 870 So. 2d 1202, 2004 Miss. LEXIS 410 (Miss. 2004).

Suppression of defendant’s statement to police – “As soon as I get out I’m going to do it again. Y’all can’t stop me” – was not required, as it was voluntarily and spontaneously given without coercion or interrogation. Murphy v. State, 2003 Miss. App. LEXIS 683 (Miss. Ct. App. Aug. 5, 2003), op. withdrawn, sub. op., 868 So. 2d 1030, 2003 Miss. App. LEXIS 1161 (Miss. Ct. App. 2003).

Generally, for confession to be admissible, it must have been given voluntarily and not given as result of promises, threats, or inducements. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

A murder defendant’s confession was not the product of an illegal arrest, since conflicting statements regarding the events surrounding the killing related by the defendant to law enforcement officers provided probable cause for his arrest; moreover, the defendant’s confession was not the product of the arrest, since he gave his confession only after incriminating physical evidence was found by the officers, and the discovery of the physical evidence was the result of separate questioning of another witness and was therefore unconnected with the arrest. Thorson v. State, 653 So. 2d 876 (Miss. 1994), reh’g denied (Miss. Apr. 20, 1995).

Statements made by sheriffs to a defendant that “it was always best to tell the truth” and that “it would be better for him to tell the truth” were mere exhortations to tell the truth and not an inducement to confess, where the defendant was a 22-year-old adult who had several prior convictions and was therefore familiar with the criminal justice system, the defendant’s first statement after the sheriff’s alleged inducements was a denial rather than a confession, and the defendant testified at his suppression hearing that the sheriffs did not make any specific promises. Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

It is not necessary that statements made during a custodial interrogation be tape-recorded in order to be admissible at trial. Williams v. State, 522 So. 2d 201, 1988 Miss. LEXIS 125 (Miss. 1988).

In order for a confession to be valid, it must be an acknowledgment in express terms of the crime charged but, generally, all voluntary statements or confessions of the defendant are admissible when offered by the state for what weight they may have in the case. Dedeaux v. State, 519 So. 2d 886, 1988 Miss. LEXIS 48 (Miss. 1988).

When state is unable to introduce confession into evidence in case in chief, not because serious factual issue has been raised that confession is involuntary but because there has been something less than 100 percent compliance with court imposed rule, defendant who, on direct testimony, makes statements conflicting with confession may be impeached with it. Powell v. State, 483 So. 2d 363, 1986 Miss. LEXIS 2401 (Miss. 1986).

Incriminating statement elicited from capital murder defendant by deputy sheriff in violation of Fifth and Sixth Amendment rights to counsel is inadmissible in sentencing phase of prosecution. Mhoon v. State, 464 So. 2d 77, 1985 Miss. LEXIS 1904 (Miss. 1985), limited, Dotson v. Mississippi (Miss. Ct. App. 1996).

39. –Age of confessor, self-incrimination.

Statement of a thirteen-year-old defendant was properly admitted at his murder trial where he and his mother both signed a Miranda statement, there was no requirement that his mother be present during questioning, and the court was bound to apply the same standards for the voluntariness of defendant’s confession as it would for any other confession. Edmonds v. State, 2006 Miss. App. LEXIS 88 (Miss. Ct. App. Jan. 31, 2006), op. withdrawn, sub. op., 955 So. 2d 864, 2006 Miss. App. LEXIS 311 (Miss. Ct. App. 2006).

Two confessions made by the 16-year-old defendant were properly admitted into evidence notwithstanding the defendant’s contention that he was too young to comprehend his rights or to waive his rights, where the defendant was very articulate and poised for a boy of his age and was read his Miranda rights three times. Woodham v. State, 779 So. 2d 158, 2001 Miss. LEXIS 3 (Miss. 2001).

Defendant’s age, 17 years, did not have any bearing on whether he had the ability to voluntarily waive his Miranda rights. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

A trial court did not err in allowing a defendant’s statement to the police into evidence, in spite of the defendant’s argument that his statement was not voluntary because of his age, education, and intelligence, where the defendant was 17 years old at the time of his arrest and interrogation, he had an 8th grade education, his parents were uneducated, he had suffered head injuries as a young child which allegedly sometimes caused impairment of his mental faculties, and the arresting officers testified that the defendant was read his Miranda rights at least twice before any interrogation, he stated that he understood those rights and the waiver of those rights, and he stated that he did not have any trouble reading or writing. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

A defendant’s statement of his birth date elicited by the police after his arrest was obtained during routine “booking”-type questioning, so that the questioning by the police did not amount to impermissible interrogation. Testimony concerning the defendant’s admission of age was, therefore, admissible in his prosecution for rape of a female child under the age of 12, regardless of whether Miranda warnings were given. Wesley v. State, 521 So. 2d 1283, 1988 Miss. LEXIS 6 (Miss. 1988).

Confessions were held to be voluntary, despite defendants’ assertions to the contrary, where defendants’ alleged involuntariness was based on: their youth, one being 17, the other 22; their lack of education, one went through tenth grade and other graduated from high school; holding of both defendants incommunicado for 3 days after their initial incarceration, allowing no visits by friends or family until a statement was given; and, one defendant was confined for that period in “drunk tank” with no bed, shower, or change of clothes; both defendants had signed waiver of rights forms prior to giving statements. Johnson v. State, 512 So. 2d 1246, 1987 Miss. LEXIS 2703 (Miss.), cert. denied, 484 U.S. 968, 108 S. Ct. 462, 98 L. Ed. 2d 402, 1987 U.S. LEXIS 4990 (U.S. 1987), overruled in part, Smith v. State, 986 So. 2d 290, 2008 Miss. LEXIS 339 (Miss. 2008).

Under totality of circumstances, confession by juvenile is freely and voluntarily given, and is free of taint of prior improper confession, where juvenile has been warned of rights under Miranda, juvenile has verbally waived rights and agreed to talk, juvenile’s mother has been called to police station before interrogation begins, has been advised of nature of charges, is given opportunity to consult with juvenile prior to questioning, and thereafter gives permission to interrogation, and juvenile then signs acknowledgment of right and waiver. In Interest of W.R.A., 481 So. 2d 280, 1985 Miss. LEXIS 2422 (Miss. 1985).

40. –Mental acuity of confessor, self-incrimination.

Defendant’s statements to police were voluntary and admissible against him where he understood the content and substance of his Miranda warnings and there was no coercion and, even though defendant had an IQ of 67, expert was of the opinion that he would understand the terms of the waiver if it was explained to him. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

There is no per se rule that mental retardation renders confession involuntary and inadmissible. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Confession is not rendered involuntary simply because person making it is mentally weak. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Doctrines of res judicata and waiver barred capital murder defendant’s postconviction claims that his alleged mental retardation prevented him from giving free and voluntary confession and from understanding his Miranda rights, where only issue raised on direct appeal concerning defendant’s confession was whether he was effectively prevented from making jury arguments about confession’s credibility, and it was clear that defendant’s low intelligence level was considered during suppression hearing in determining voluntariness of his confession. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Although there is no constitutional requirement to examine the mental capacity of the defendant in making a determination as to whether a confession was voluntary, it remains true as a matter of evidence that before any confession is admissible, it must have been given by a person with enough intelligence to be a competent witness. Butler v. State, 608 So. 2d 314, 1992 Miss. LEXIS 588 (Miss. 1992).

There is no constitutional requirement to examine the mental capacity of the defendant in making a determination as to whether a confession is free and voluntary; the focus is directed entirely to the conduct on the part of the State. Butler v. State, 608 So. 2d 314, 1992 Miss. LEXIS 588 (Miss. 1992).

A defendant’s confession was not the product of mental deficiency, and therefore the defendant “knowingly” confessed, even though there was evidence that the defendant was mildly mentally retarded, where the defendant graduated from high school though he flunked 3 grades in school, there was no evidence that he was ever placed in special education classes, he admitted that he could read and write and that he understood the charges against him, and all who witnessed the interrogation said they saw no evidence that the defendant suffered mental abnormalities such that he could not understand the interrogation process or its consequences. Veal v. State, 585 So. 2d 693, 1991 Miss. LEXIS 479 (Miss. 1991).

The trial court in a capital murder prosecution properly concluded at the end of a lengthy suppression hearing that defendant’s confession was admissible as having been freely and voluntarily given, notwithstanding the fact that defendant was mentally retarded, where there was no evidence of any threats, promises, or any form of physical abuse of coercion, where defendant never requested the assistance of counsel, where there was no evidence that on any occasion during the questioning defendant had been under the influence of drugs or liquor, where the record was replete with the inference that the detective who interrogated defendant had been courteous, considerate, patient and persistent, and where that detective testified that the confession had been given at a time when defendant had understood and appreciated the gravity of the charges against him, and that it had been given at a time when defendant was fully aware of his constitutional privilege against self-incrimination and his right to counsel. Neal v. State, 451 So. 2d 743, 1984 Miss. LEXIS 1760 (Miss.), cert. denied, 469 U.S. 1098, 105 S. Ct. 607, 83 L. Ed. 2d 716, 1984 U.S. LEXIS 470 (U.S. 1984).

41. – Intoxication, self-incrimination.

During defendant’s trial for felony DUI, third offense, the admittance of defendant’s refusal to submit to a breath test was not a violation of his right against self-incrimination under either Miss. Const. Art. 3, § 26 or U.S. Const. Amend. 5; thus, defendant’s challenge to the constitutionality of Miss. Code Ann. §63-11-41 failed. Starkey v. State, 941 So. 2d 899, 2006 Miss. App. LEXIS 827 (Miss. Ct. App. 2006).

Defendant’s self-incrimination rights were not violated because all law enforcement personnel who testified stated that defendant did not appear to have been under the influence of drugs and there was no corroboration to defendant’s assertions to the contrary; additionally, defendant’s actions on the day of the murders indicated a mind capable of perceiving the world around him and taking control of his own actions. Scott v. State, 947 So. 2d 341, 2006 Miss. App. LEXIS 648 (Miss. Ct. App. 2006), cert. denied, 956 So. 2d 228, 2007 Miss. LEXIS 262 (Miss. 2007).

Despite defendant’s claims that he had taken LSD and heroin and smoked marihuana before his interrogation, his confession was voluntary, as the interrogating officer, a former narcotics officer, testified that defendant did not appear to be under the influence of substances during questioning. Bryant v. State, 853 So. 2d 814, 2003 Miss. App. LEXIS 491 (Miss. Ct. App.), cert. denied, 852 So. 2d 577, 2003 Miss. App. LEXIS 880 (Miss. Ct. App. 2003).

While the admission of a drug-induced confession would violate a defendant’s right against self-incrimination, a voluntary statement does not trigger Miranda rights; thus the fact that a defendant was under the influence of drugs while making voluntary self-incriminating statements is not of consequence. Wright v. State, 730 So. 2d 1106, 1998 Miss. LEXIS 622 (Miss. 1998).

Where the defendant was in an acute, rampant state of intoxication equivalent to mania he could not have rationally, voluntarily, and intentionally waived his constitutional rights guaranteed by the Fifth Amendment to the U.S. Constitution and by Article 3, § 26 of the Mississippi Constitution, and his confession made while in that condition that he had committed armed robbery and murder in 1947 was properly excluded at his trial. State v. Williams, 208 So. 2d 172, 1968 Miss. LEXIS 1398 (Miss. 1968).

42. –Admissions antecedent to Miranda warning, self-incrimination.

There was no physical evidence linking defendant to a burglary but the jury was provided with physical evidence connecting his accomplice to the crime. Then, the jury was told that defendant was able to identify his accomplice close to the crime scene when this identification had already been suppressed due to the violation of defendant’s Fifth and Sixth Amendment rights at the time of his arrest (Miranda violation); thus, the identification testimony by the officer was unquestionably prejudicial, the prosecutor’s closing argument further compounded the problem by linking the physical evidence connecting the accomplice to the crime to defendant, and the trial court committed reversible error in denying defendant’s motions for a mistrial and for a new trial. Carpenter v. State, 910 So. 2d 528, 2005 Miss. LEXIS 110 (Miss. 2005).

In a murder prosecution, police officers’ questions about the defendant’s injured hand, after he had invoked his right to counsel, did not violate Miranda since they were asked in order to determine if medical assistance was necessary. Jones v. State, 841 So. 2d 115, 2003 Miss. LEXIS 134 (Miss. 2003).

Miranda did not prohibit an officer from photographing a defendant’s injured hand after he had invoked his right to silence. Jones v. State, 841 So. 2d 115, 2003 Miss. LEXIS 134 (Miss. 2003).

Answer to question of “why” defendant had shot victim was admissible under Miranda exception for on-scene investigation where question had followed defendant approaching officer at scene of shooting and saying “I shot my best friend.” Luster v. State, 515 So. 2d 1177, 1987 Miss. LEXIS 2912 (Miss. 1987).

Statement of defendant that “I shot her” was admissible into evidence, falling within exclusion to Miranda which recognizes that where interrogation is part of “general on-the-scene investigation” Miranda warnings are not prerequisite to admissibility of statements. Tolbert v. State, 511 So. 2d 1368, 1987 Miss. LEXIS 2681 (Miss. 1987), cert. denied, 484 U.S. 1016, 108 S. Ct. 723, 98 L. Ed. 2d 672, 1988 U.S. LEXIS 259 (U.S. 1988).

A volunteered statement, voiced without prompting or interrogation, is admissible in evidence if made prior to Miranda warning and of course if it were voluntarily and spontaneously made subsequent thereto, it would remain admissible in evidence. Burge v. State, 282 So. 2d 223, 1973 Miss. LEXIS 1215 (Miss. 1973), cert. denied, 415 U.S. 985, 94 S. Ct. 1580, 39 L. Ed. 2d 882, 1974 U.S. LEXIS 960 (U.S. 1974).

Voluntary statements made by the defendant as he was walking toward the officer who placed him under arrest, which statements constituted an admission or confession that he had committed the theft for which he was subsequently convicted, do not violate this amendment and constituted a recognized exception to the Miranda Rule. Nevels v. State, 216 So. 2d 529, 1968 Miss. LEXIS 1236 (Miss. 1968).

43. – Miranda warnings prior to confession, self-incrimination.

There was no Miranda violation when officer approached hospitalized defendant third time for confession, because officer gave adequate warning and because defendant voluntarily and knowingly waived his rights before giving statement. Keller v. State, 138 So.3d 817, 2014 Miss. LEXIS 89 (Miss. 2014), cert. denied, — U.S. —, 135 S. Ct. 1397, 191 L. Ed. 2d 371, 2015 U.S. LEXIS 1353 (U.S. 2015).

Court properly denied a motion to suppress under the Fifth Amendment because defendant was adequately advised of his Miranda rights; an officer read defendant his Miranda rights prior to the first interrogation, defendant signed a Miranda form, and the second interrogation commenced just eight minutes after the first interrogation ended. Additionally, the waiver was voluntary; defendant had no difficulty reading the rights, he appeared to understand and recall everything very well, and when the officer asked defendant whether he understood his rights, defendant responded affirmatively. Ruffin v. State, 992 So. 2d 1165, 2008 Miss. LEXIS 518 (Miss. 2008).

There was substantial evidence to support a trial court’s finding that defendant was adequately advised of his constitutional rights under Miranda because only a short time transpired between the time that an agent with the Mississippi Bureau of Narcotics read defendant his Miranda rights and a police officer’s questioning. Armstead v. State, 978 So. 2d 642, 2008 Miss. LEXIS 169 (Miss. 2008).

Although a voluntary statement made by defendant was in violation of the Fifth and Sixth Amendments because defendant had asked for an attorney, it was properly used for impeachment purposes during a murder trial; moreover, the failure to provide a limiting instruction on such was not error since defendant did not make such a request, and therefore a motion for a mistrial was properly denied. Sipp v. State, 936 So. 2d 326, 2006 Miss. LEXIS 336 (Miss. 2006).

Defendant voluntarily went to the police station, was told about the 15-year-old victim’s accusations that defendant had fondled him, and agreed to give a statement to police, he was not placed under arrest before questioning, and the officers emphasized that he was free to end his questioning at any time; thus, defendant was not in custody and therefore was not entitled to the Miranda protections, but out of caution the officers did read defendant his Miranda warnings, and he signed a waiver indicating that he fully understood those rights, and therefore his statement to the police before his arrest was admissible. Mingo v. State, 944 So. 2d 18, 2006 Miss. LEXIS 679 (Miss. 2006).

Trial court did not err in admitting defendant’s confession to the police that he was walking by the victim’s business and decided to take some things as defendant blurted out the statement after he was read his Miranda rights. Wess v. State, 926 So. 2d 930, 2005 Miss. App. LEXIS 708 (Miss. Ct. App. 2005), cert. denied, 927 So. 2d 750, 2006 Miss. LEXIS 218 (Miss. 2006).

The fact that Miranda warnings were not given to the defendant was irrelevant where the defendant did not make any inculpatory statements and the state did not seek to introduce any statements. Hodnett v. State, 787 So. 2d 670, 2001 Miss. App. LEXIS 211 (Miss. Ct. App. 2001).

The defendant was properly advised of her rights prior to making her confession because (1) the five to 10 minutes that elapsed between one interview and another interview by a different officer constituted only a brief pause in questioning that did not require a renewal of Miranda warnings, and (2) the defendant had been advised of her Miranda rights three times in a period of less than 24 hours. Taylor v. State, 789 So. 2d 787, 2001 Miss. LEXIS 104 (Miss. 2001).

Security guards working for a private security company employed by a public housing authority are not under the same constitutional constraints as police officers and are not required to give Miranda warnings. DeLoach v. State, 722 So. 2d 512, 1998 Miss. LEXIS 510 (Miss. 1998).

Finding that defendant understood his right to remain silent was supported by defendant’s testimony that he understood that he had right to stop answering questions and by videotape of confession showing that detective explained to defendant that he could stop answering questions at any time and have attorney appointed, which defendant indicated he understood. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

A trial court erred by admitting testimony concerning a defendant’s confession where the defendant testified that he could not recall being read his Miranda rights and that he thought he would be incarcerated that same day if he did not confess, the prosecution did not produce all officers who were present when the defendant was questioned and his confession given, and no adequate reason for the officers’ absence was given. Lettelier v. State, 598 So. 2d 757, 1992 Miss. LEXIS 127 (Miss. 1992).

An accused person who has been given the Miranda warnings is not obliged to answer any questions or to make any explanation. The accused need not invoke the presence of counsel in order to obtain the benefits of these rights. It is improper and, ordinarily, reversible error to comment on the accused’s post-Miranda silence. The accused’s right to be silent then is equally as strong as the right not to testify and it is error to comment on either. It is therefore improper to inquire of a testifying defendant as to whether he or she made any protest or explanation to the arresting officers. Quick v. State, 569 So. 2d 1197, 1990 Miss. LEXIS 662 (Miss. 1990).

A warning advising a suspect “that anything he said might be used against him in a court of law” is constitutionally adequate; an officer is not required to advise a suspect of all specific possible criminal consequences. One of the virtues of Miranda is its clarity; the warnings are the same in every case. Adding the requirement that the officer inform the suspect of specific criminal consequences would add a component variable from case to case and undermine the simplicity and bright-line character of the rule as it stands. Fowler v. State, 566 So. 2d 1194, 1990 Miss. LEXIS 439 (Miss. 1990).

Court did not err in admitting into evidence statement made by defendant, after getting in patrol car, telling officers where gun was and that he “didn’t mean to do it, that it was only an accident,” where officers gave defendant Miranda warnings prior to statement. Tolbert v. State, 511 So. 2d 1368, 1987 Miss. LEXIS 2681 (Miss. 1987), cert. denied, 484 U.S. 1016, 108 S. Ct. 723, 98 L. Ed. 2d 672, 1988 U.S. LEXIS 259 (U.S. 1988).

Argument that Miranda warning given defendant which concluded with the words “we have no way of giving you a lawyer, but one will be appointed for you if you wish, if and when you go to court”, was insufficient and ineffective since it left the impression with defendant that he was entitled to an attorney only during trial, but not during interrogation, was persuasive in isolation, but when considered in context with the remainder of the related warning, a part of which advised of the right to an attorney before responding to question, the plausibility disappeared; however peace officers would be well advised to delete the words “if and when you go to court” from future warnings. Burge v. State, 282 So. 2d 223, 1973 Miss. LEXIS 1215 (Miss. 1973), cert. denied, 415 U.S. 985, 94 S. Ct. 1580, 39 L. Ed. 2d 882, 1974 U.S. LEXIS 960 (U.S. 1974).

44. – Voluntariness of confession, self-incrimination.

Defendant’s confession, which was made during a police interrogation, was freely and voluntarily given, and defendant’s rights waiver was knowingly, intelligently, and voluntarily made, because, although defendant declined to sign the rights waiver form, defendant voluntarily informed the interrogating officer of defendant’s alibi and responded to further questioning, despite being advised several times that defendant could stop the interview at any point, until defendant confessed to the rape of the victim. Roberts v. State, 234 So.3d 1251, 2017 Miss. LEXIS 383 (Miss. 2017).

Trial court erred in admitting defendant’s confession without first holding a hearing without the jury present where the voluntariness issue had appeared before the trial court, the trial court allowed the State to elicit testimony from the officer who had advised defendant of his Miranda rights and recorded his confession, and by not holding that hearing, the trial court had precluded defendant from putting on evidence refuting the officer’s testimony. Williams v. State, 177 So.3d 836, 2015 Miss. App. LEXIS 200 (Miss. Ct. App. 2015).

Defendant’s pre-trial statements were admissible because the trial court did not manifestly err in finding that defendant’s affirmative nod to an officer and signing of a rights waiver form constituted an effective waiver of defendant’s Miranda rights. Batiste v. State, 121 So.3d 808, 2013 Miss. LEXIS 295 (Miss. 2013), cert. denied, 572 U.S. 1117, 134 S. Ct. 2287, 189 L. Ed. 2d 178, 2014 U.S. LEXIS 3424 (U.S. 2014).

Trial court’s ruling that defendant made a knowing, intelligent, and voluntary waiver of his Miranda rights was supported by substantial evidence because a police officer’s threat to arrest defendant’s wife if defendant did not confess that drugs belonged to him was insufficient to render defendant’s statement involuntary because probable cause existed to arrest defendant’s wife because cocaine was found in the kitchen, a common area of the home, and defendant’s wife had been living in the home and was listed on the lease. Armstead v. State, 978 So. 2d 642, 2008 Miss. LEXIS 169 (Miss. 2008).

In a capital murder case, a motion to suppress defendant’s confession was properly denied because the statement was voluntarily given, despite cultural differences; defendant, who completed 10 years of education, waived Miranda rights and entered a partial confession before police mentioned religious beliefs. Le v. State, 913 So. 2d 913, 2005 Miss. LEXIS 151 (Miss.), cert. denied, 546 U.S. 1004, 126 S. Ct. 622, 163 L. Ed. 2d 508, 2005 U.S. LEXIS 8254 (U.S. 2005).

Trial court did not err in finding that a statement made by defendant during the booking process for the crime of driving while impaired was admissible because the statement was freely and voluntarily given; the admission of the spontaneous statement was not barred by the Fifth Amendment. Watson v. State, 835 So. 2d 112, 2003 Miss. App. LEXIS 6 (Miss. Ct. App. 2003).

The defendant’s confession was voluntarily given because (1) he had been read his Miranda warnings, (2) the arresting officers did not interrogate the defendant about his involvement in the crime at issue, and (3) the defendant spoke freely without prompting by the officers; a contrary determination was not required by the fact that the defendant had an apparent friendship with one of the officers because the friendship did not create a compelling influence on the defendant. Stallworth v. State, 797 So. 2d 905, 2001 Miss. LEXIS 60 (Miss. 2001).

The defendant’s confession was voluntary, notwithstanding that he was in the emergency room with two self-inflicted stab wounds, neither of which turned out to be life threatening, and the assertion that he was involuntarily intoxicated, where (1) law enforcement officers testified that the defendant was alert, aware of his surroundings, and answered all their questions rationally, and that he voluntarily waived his Miranda rights, and (2) the emergency room physician and the attending nurse corroborated the officers’ view that the defendant understood everything they asked, answered all their questions, was alert, stable, oriented and not in shock. Kircher v. State, 753 So. 2d 1017, 1999 Miss. LEXIS 323 (Miss. 1999).

A statement made by the defendant was volunteered information, unprompted by the equivalent of interrogation, where, while he was being booked for stealing a truck, the defendant asked how the officer could charge him with such an act, the officer explained the facts that led to the charge, and the defendant responded that he thought he should only be charged with unauthorized use of a motor vehicle. Bryant v. State, 748 So. 2d 780, 1999 Miss. App. LEXIS 232 (Miss. Ct. App. 1999).

Confessions made by a 14 year old defendant in a murder prosecution were not voluntary where the strategy of the interrogating officers to procure a confession was to convince the defendant that he might receive religious salvation for his sins and see his murdered parents again if he told them the truth; the defendant’s will was overborne and his confession was induced by the investigating officers’ invocation of the deity, references to heaven and hell, and promises of leniency and religious salvation which, according to the officers’ testimony at the suppression hearing, could only be attained by a confession. Carley v. State, 739 So. 2d 1046, 1999 Miss. App. LEXIS 188 (Miss. Ct. App. 1999).

The trial judge did not err in finding that the defendant’s statements were made voluntarily where the interrogating officers testified (1) that the defendant never refused to speak to them, but initially denied any involvement in the crime at issue, (2) that the defendant understood his rights, including his right to remain silent, voluntarily spoke with them, and never requested an attorney, (3) that no one promised anything to the defendant or threatened him in any way, and (4) that the defendant stated that he understood his rights before voluntarily signing a rights waiver form. Underwood v. State, 708 So. 2d 18, 1998 Miss. LEXIS 45 (Miss. 1998).

Prosecution shoulders burden of proving beyond reasonable doubt that defendant’s confession was voluntary. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

Prosecution’s burden of showing that confession was voluntary is met and prima facie case made out by testimony of officer, or other persons having knowledge of facts, that confession was voluntarily made without threats, coercion, or offer of reward. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

Determination that defendant was not threatened into making confession was supported by testimony of all detectives present at time of alleged threat, in which detectives all denied that threat was made. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

Delay of approximately 24 hours between time of arrest and initial appearance before magistrate did not warrant suppression of confession given by defendant prior to initial appearance; defendant was arrested by warrant while he was already in jail, defendant was informed of his right to remain silent, his right to attorney, and his right to stop answering questions at any time and to ask for attorney, and defendant did not ask for appointment of counsel on charge for which he was arrested. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

A defendant’s confession was freely and voluntarily given, and was therefore admissible into evidence in his murder trial, where law enforcement officers testified that he was given all the Miranda warnings prior to giving his confession and that he did not ask for an attorney at any time, he was familiar with his constitutional rights as evidenced by his refusal to sign a waiver form and the fact that he had previously been convicted of a felony, and his video-taped confession did not suggest any coercion. Thorson v. State, 653 So. 2d 876, 1994 Miss. LEXIS 600 (Miss. 1994).

The principle enunciated in Agee v State (1966, Miss) 185 So 2d 671 with respect to proving the voluntariness of a confession remains sound, but its importance to an accused has receded in view of the strong affirmative mandates of Miranda; only those persons who are claimed to have induced a confession through some means of coercion are required to be offered by the State as a witness under Agee. Thorson v. State, 653 So. 2d 876, 1994 Miss. LEXIS 600 (Miss. 1994).

Where the State has laid the “proper predicate” for admission of a defendant’s confession, the onus is then on the defendant to provide other evidence or testimony on the issue of voluntariness to rebut the State’s assertion. Haymer v. State, 613 So. 2d 837, 1993 Miss. LEXIS 32 (Miss. 1993).

In a prosecution for driving a motor vehicle while under the influence of intoxicating liquor, the defendant’s statement to a police officer that the breathalyzer machine would “probably show I’m in a coma” was essentially a confession that the defendant was drunk, and was therefore admissible into evidence as a voluntary statement where it was made spontaneously after the defendant had been given the Miranda warnings. Ricks v. State, 611 So. 2d 212, 1992 Miss. LEXIS 819 (Miss. 1992).

A trial court followed the correct legal standards to determine the admissibility of the content of a defendant’s confession and there was substantial evidence to support a finding of voluntariness, where no pre-trial motion to suppress was filed, the trial court conducted a hearing in chambers during the trial after the defendant’s in-court objection to the voluntariness of his confession, the trial court found that the State had established a “proper predicate” on the testimony of a fire marshal who was present at the time of the confession, and the defendant did not rebut the State’s predicate during arguments on the motion, so that the State was not required to produce all of the witnesses to the confession to establish voluntariness. Cox v. State, 586 So. 2d 761, 1991 Miss. LEXIS 588 (Miss. 1991).

Trial court did not commit error in determining that statements were voluntarily given after knowing and intelligent waiver where defendant contended statements were made when he was misled as to their import, arguing that he was arrested on one charge but questioned concerning a more serious charge. Testimony at suppression hearing supported trial court’s determination that waiver was voluntary despite questioning related to crime not charged, where defendant was presented warrants for his arrest on charges of forgery and credit card misuse, but before statement was taken was informed that sheriff was present in regard to investigation into death of man who owned credit cards he was accused of illegally using. Transcript of defendant’s recorded statement made clear that he was informed that officers wanted to talk with him about murder investigation. Lutes v. State, 517 So. 2d 541, 1987 Miss. LEXIS 2931 (Miss. 1987).

Determination of whether confession is voluntary and freely given, and not product of coercion, is finding of fact which will not be reversed on appeal unless manifestly in error, or contrary to overwhelming weight of evidence; factual determination that confession was voluntarily and freely given was not clearly erroneous where interrogating officer testified that no mental or physical pressure was placed on defendant, no promises of freedom or leniency were offered in exchange for confession, and police officer called attorney for defendant; rejected was defendant’s argument that confession was involuntary because it was result of threats, pressure, and coercion, defendant had only 6-grade education, and at time of confession was wearing colostomy bag, which impaired ability of defendant to freely and voluntarily waive his rights against self-incrimination. Sims v. State, 512 So. 2d 1256, 1987 Miss. LEXIS 2701 (Miss. 1987).

Admission of defendant’s confession into evidence is proper where there is voluntary and knowing waiver of Miranda rights and confessions are free and voluntary as evidenced by testimony of officers involved in obtaining the confessions, defendant initiated statement about previous rape, police officer who took defendant to station testified that defendant was not intoxicated and was in control of himself, jailer testified that he never noticed defendant experiencing severe withdrawal symptoms, and nurse assigned to jail did not recall defendant asking to see doctor and observing that defendant appeared to know what was going on and to understand questions and make appropriate responses. Coulter v. State, 506 So. 2d 282, 1987 Miss. LEXIS 2476 (Miss. 1987).

45. –Induced confessions, self-incrimination.

A confession by the defendant was not the product of threats or promises made by police, notwithstanding statements by the police that defendant should tell the truth so she would feel better about herself, that she and her boyfriend were “going down” if she did not tell the truth, and that she would be better off if she told the truth and should explain what occurred so she could have peace of mind. Taylor v. State, 789 So. 2d 787, 2001 Miss. LEXIS 104 (Miss. 2001).

Defendant’s confession was not unlawfully induced by detective’s comment that defendant should tell truth and that “the truth shall set you free”; defendant had history of legal problems and had opportunity to become familiar with criminal justice system, there was nothing to indicate that defendant placed trust or confidence in detective, and defendant testified that he was not offered any promises or inducements to make written or videotaped confessions. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

A defendant’s statement to police was admissible and not the product of improper inducement, even though a police officer had told the defendant that “it’d be best for him to tell us to help himself,” where the defendant received Miranda warnings twice, he understood his constitutional rights, his statement was a denial rather than a confession, no specific promise was made to him by a law enforcement officer, and he maintained that he would have told the truth regardless of the officer’s comments to him. Chase v. State, 645 So. 2d 829, 1994 Miss. LEXIS 116 (Miss. 1994), cert. denied, 515 U.S. 1123, 115 S. Ct. 2279, 132 L. Ed. 2d 282, 1995 U.S. LEXIS 3828 (U.S. 1995).

The trial court in a capital murder prosecution erred in refusing to suppress the defendant’s confession as involuntary where a former teacher and retired minister was called in by the sheriff to meet privately with the defendant, the minister communicated to the defendant, at the sheriff’s direction, the notion that there might be a chance for mercy if he volunteered to cooperate, the minister and the defendant discussed the death penalty and the religious ramifications of the defendant’s action, a sheriff’s deputy told the defendant that he thought it would look better if the defendant confessed, and an investigator who conducted the interrogation with the sheriff admitted that the defendant may have been given the impression by the investigator and the sheriff that cooperation could be of some benefit. Abram v. State, 606 So. 2d 1015, 1992 Miss. LEXIS 448 (Miss. 1992), overruled in part, Foster v. State, 961 So. 2d 670, 2007 Miss. LEXIS 315 (Miss. 2007), overruled in part, Holly v. Mississippi, 2011 U.S. App. LEXIS 24853 (5th Cir. Miss. Dec. 13, 2011).

Trial court was well within evidence in determining treatment of wife of defendant not to be indicative of impropriety undermining defendant’s waiver of rights concerning self-incrimination where defendant was advised that his wife was under arrest for possession of marijuana found growing on premises, defendant inquired if charges could be dropped but was told that officers had no authority to do so, and officer who was present during defendant’s questioning specifically denied that defendant was told “you don’t want us to have to take her to jail.” Lutes v. State, 517 So. 2d 541, 1987 Miss. LEXIS 2931 (Miss. 1987).

46. – Coerced confession, self-incrimination.

Inmate’s voluntary act of pleading guilty to the crime of manslaughter foreclosed an appellate court from considering issues relating to the voluntariness of a confession or the right to a speedy trial in a motion seeking postconviction relief. Young v. State, 877 So. 2d 552, 2004 Miss. App. LEXIS 669 (Miss. Ct. App. 2004).

The trial court did not err in finding that a waiver of rights form signed by the defendant prior to his later contrary statement was in accordance with the law and that the defendant had waived his rights knowingly in a statement where he made an admission of guilt, where (1) no physician was produced, either during the suppression hearing or at trial, to attest to the fact that the defendant suffered from anxiety or that he had been taking medications for that condition, and (2) there was no testimony from the defendant or anyone else that his medication had been withheld by an officer until he confessed. Sistrunk v. State, 773 So. 2d 419, 2000 Miss. App. LEXIS 578 (Miss. Ct. App. 2000).

The evidence did not establish that the defendant was coerced into making a confession where the videotape of the confession did not show any coercion and the presence of the defendant’s girlfriend was at his own request. Evans v. State, 725 So. 2d 613, 1997 Miss. LEXIS 389 (Miss. 1997), cert. denied, 525 U.S. 1133, 119 S. Ct. 1097, 143 L. Ed. 2d 34, 1999 U.S. LEXIS 1510 (U.S. 1999).

Although the court should have suppressed a statement made by the defendant in response to an officer’s question about why a man his age was selling drugs, as the defendant had already invoked his right to counsel, the error was harmless in light of the overwhelming evidence of guilt. Handford v. State, 736 So. 2d 1069, 1999 Miss. App. LEXIS 66 (Miss. Ct. App. 1999).

By alleging that his confession was coerced, defendant secured due process entitlement to reliable determination that his confession was not given as a result of coercion, inducement, or promises. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

In order to establish the admissibility of a murder defendant’s confession, the State was not required to offer as witnesses law enforcement officers who allegedly yelled at the defendant and were abusive when he was initially questioned, since the alleged statements made by the officers had no bearing on the defendant’s confession which was made 2 days later after he was given the Miranda warnings. Thorson v. State, 653 So. 2d 876 (Miss. 1994), reh’g denied (Miss. Apr. 20, 1995).

The evidence was sufficient to support a finding that the defendant knowingingly, intelligently, and voluntarily waived his Miranda rights, even though the defendant had been drinking prior to his arrest, he had not slept for nearly 24 hours prior to waiving his rights, and he had periodic bouts of crying, where the defendant repeatedly acknowledged that he understood his Miranda rights and expressed this acknowledgment both orally and in writing, he was 49 years old, had a high school and vocational education, and considered himself to be a “very intelligent person,” his criminal past provided him with some experience and knowledge about a suspect’s Miranda rights, 5 witnesses testified that he did not appear to be impaired by alcohol and did not slur his speech, the defendant testified that he had been a chronic drinker, the defendant was for the most part calm and cooperative throughout the investigation and particularly at the moment he waived his rights, the defendant had meticulously schemed to “cover his tracks” to avoid arrest which reflected a coherent, unimpaired state of mind, and the defendant’s taped confession contained the admission that no one had “threatened,” “intimidated,” or “promised him anything.” Holland v. State, 587 So. 2d 848, 1991 Miss. LEXIS 648 (Miss. 1991).

Trial judge’s finding that capital murder defendant’s confession was voluntary was neither manifestly wrong nor against the overwhelming weight of the evidence where, at the hearing outside the presence of the jury, the defendant stated that he had signed confession to help his brother and father, who were implicated in the crime, and testified as to threats made by police officer, but the threats were denied by the officer alleged to have made them. Cabello v. State, 490 So. 2d 852, 1986 Miss. LEXIS 2479 (Miss. 1986).

47. –Delay in arraignment affecting voluntariness of confession, self-incrimination.

The delay from the time of a defendant’s arrest until he was taken before a judicial officer did not violate Rule 1.04, Miss. Unif. Crim. R. Cir. Ct. Prac. and the 4th Amendment to the United States Constitution where his initial hearing was held within 48 hours of the time he was taken into custody for questioning, and there was no indication that the officers were purposely holding him in custody to gather sufficient evidence to justify his arrest; thus, his confession was not a product of any delay in taking him before a magistrate and was therefore admissible. Thorson v. State, 653 So. 2d 876 (Miss. 1994), reh’g denied (Miss. Apr. 20, 1995).

48. –Suppression of confession, self-incrimination.

Trial court did not err in denying defendant’s motion to suppress his pre-trial confession to police because the State presented sufficient evidence to show that defendant’s statements were voluntarily made without threats, coercion, or an offer of reward. The State introduced a police officer’s testimony that stated that no threats were made and a videotape of the confession; also defendant signed a Miranda warning form and four forms waiving his rights to counsel and to remain silent. Manix v. State, 895 So. 2d 167, 2005 Miss. LEXIS 112 (Miss. 2005).

Defendant was not entitled to reopening of suppression hearing concerning tape-recorded confession at resentencing following affirmance of capital murder conviction, where basis for attempting to reopen suppression hearing was defendant’s lack of experience with Miranda rights at time of confession; lack of knowledge concerning Miranda rights could have been asserted in original hearings. (Per Smith, J., with three Justices concurring, and Chief Justice and two Justices concurring in result.) Holland v. State, 705 So. 2d 307, 1997 Miss. LEXIS 388 (Miss. 1997), cert. denied, 525 U.S. 829, 119 S. Ct. 80, 142 L. Ed. 2d 63, 1998 U.S. LEXIS 5017 (U.S. 1998).

A defendant’s statements should have been suppressed where he invoked his right to remain silent and to have an attorney present after he was taken into custody and Mirandized by Tennessee authorities, and he was subsequently Mirandized by Mississippi officers without his having initiated the conversation. Duplantis v. State, 644 So. 2d 1235, 1994 Miss. LEXIS 529 (Miss. 1994), cert. denied, 514 U.S. 1123, 115 S. Ct. 1990, 131 L. Ed. 2d 876, 1995 U.S. LEXIS 3453 (U.S. 1995).

Where a defendant objects to the prosecution’s use of a confession at trial as evidence against him or her, the prosecution bears the burden of proving beyond a reasonable doubt each fact which is prerequisite to admissibility. Kirkland v. State, 559 So. 2d 1046, 1990 Miss. LEXIS 200 (Miss. 1990).

Trial court’s decision to admit defendant’s confession was supported by substantial evidence and therefore proper where, at hearing on motion to suppress all oral and written confessions, officers testified that statements of defendant were voluntary and not result of coercion or pressure, defendant testified that officers did not pressure him, and only testimony offered by defendant that could be inferred as evidence of coercion was that he was high on day of his arrest when he made statements. Further, defendant signed waiver of rights before making confession and statements were made over course of several days, with each statement occurring after valid, written waiver. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

In the absence of a clear showing that the warnings required in Miranda v Arizona, 384 US 436, 16 L Ed 2d 694, 86 S Ct 1602, 10 ALR3d 394, were given, the testimony of a sheriff as to certain admissions alleged to have been made to him by the defendant which was disputed by the defendant’s evidence, should not have been admitted. Williams v. State, 220 So. 2d 325, 1969 Miss. LEXIS 1455 (Miss. 1969).

49. –Guilty plea generally, self-incrimination.

In defendant’s “petition to enter plea of guilty,” he swore that his lawyer had advised him of the elements of the charge to which defendant was pleading and that he had not been forced, intimidated or coerced in any manner to plead guilty. The colloquy also showed that he was advised that by pleading guilty, he was waiving his right to a trial by jury, the right to protection against self-incrimination, and the right to confront witnesses; thus, the trial court did not err in finding that his plea was freely, voluntarily, understandingly, and knowingly made. Willcutt v. State, 910 So. 2d 1189, 2005 Miss. App. LEXIS 608 (Miss. Ct. App. 2005).

A trial court’s failure to inform a defendant of the mandatory minimum sentence for the crime charged did not render the defendant’s guilty plea involuntary where no misrepresentation as to the mandatory minimum sentence was made to the defendant, he did not expect to receive the mandatory minimum sentence, he did not claim that there was a misrepresentation of the sentence which he was to receive, he was fully apprised and understood the consequences of the sentence the State intended to recommend, and he did not allege that the failure to be informed of the minimum sentence induced him to enter his guilty plea. Smith v. State, 636 So. 2d 1220, 1994 Miss. LEXIS 54 (Miss. 1994).

A guilty plea operates to waive the defendant’s privilege against self-incrimination, the right to confront and cross-examine the prosecution’s witnesses, the right to a jury trial, and the right that the prosecution prove each element of the offense beyond a reasonable doubt. Jefferson v. State, 556 So. 2d 1016, 1989 Miss. LEXIS 485 (Miss. 1989).

Admission of guilt is not a constitutional requisite of an enforceable plea. Reynolds v. State, 521 So. 2d 914, 1988 Miss. LEXIS 106 (Miss. 1988).

A plea of guilty constitutes a waiver of some of the most basic rights of free Americans, those secured by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, as well as those comparable rights secured by Miss. Const, Art 3, §§ 14 and 26. Sanders v. State, 440 So. 2d 278, 1983 Miss. LEXIS 2905 (Miss. 1983).

50. – Voluntariness of guilty plea, self-incrimination.

In defendant’s manslaughter case, his confession was voluntary because defendant conceded that he gave the statement voluntarily, and he was given Miranda warnings and understood his rights; an officer testified that he was outside of the interrogation room, another officer and defendant came out of the room, and the officer told him that defendant had said “he just lost it and shot her and he would show us where the body was.” McBride v. State, 934 So. 2d 1033, 2006 Miss. App. LEXIS 539 (Miss. Ct. App. 2006).

Valid guilty plea operated as a waiver of all nonjurisdictional rights or defects that were incidental to trial; defendant was fully advised of his rights and the maximum sentences he faced if he chose to go to trial, and he was provided a detailed admonishment prior to accepting his guilty plea, such that defendant’s plea was made knowingly, intelligently, and voluntarily and he waived any rights regarding the allegedly coerced confession. Swindoll v. State, 859 So. 2d 1063, 2003 Miss. App. LEXIS 1071 (Miss. Ct. App. 2003).

Where a defendant claimed his confessions were involuntary because he was on pain medication and in physical pain when he made them, unrebutted police testimony that he was read his rights, was not coerced, appeared coherent, and voluntarily confessed, supported the trial court’s decision to admit the confessions. Wimberly v. State, 839 So. 2d 553, 2002 Miss. App. LEXIS 867 (Miss. Ct. App. 2002).

The constitutional standard for voluntariness of a guilty plea does not mention knowledge of the mandatory minimum sentence as an essential element; instead, it merely states that the accused should understand the effects of a guilty plea. Smith v. State, 636 So. 2d 1220, 1994 Miss. LEXIS 54 (Miss. 1994).

A defendant’s claim that he blindly entered a plea of guilty because his attorney told him that his mother advised him to do so was not sufficient to render his plea involuntary. Smith v. State, 636 So. 2d 1220, 1994 Miss. LEXIS 54 (Miss. 1994).

A plea is voluntary if not induced by fear, violence, deception or improper inducements. Smith v. State, 636 So. 2d 1220, 1994 Miss. LEXIS 54 (Miss. 1994).

A defendant’s plea of guilty to 2 counts of forgery was not involuntarily entered, even though the trial court did not personally advise the defendant of the minimum and maximum penalties provided by law for the crimes of forgery, where the defendant’s attorney explained to him the maximum and minimum penalties for the charges, the defendant made no claim about the sentence he expected to receive or his belief as to the minimum sentence for the offense charged, and he did not claim that his alleged ignorance was the basis for his guilty plea. Banana v. State, 635 So. 2d 851, 1994 Miss. LEXIS 181 (Miss. 1994).

A defendant was entitled to an evidentiary hearing pursuant to §§99-39-13 through99-39-23 on the issue of whether his guilty plea was entered voluntarily and intelligently where the transcript of the defendant’s plea hearing did not reflect that he was advised concerning the rights of which he alleged he was ignorant; the State would be entitled to prove at the evidentiary hearing that the defendant learned of the rights in question, either from the trial judge or from some other source, prior to pleading guilty. Alexander v. State, 605 So. 2d 1170, 1992 Miss. LEXIS 573 (Miss. 1992).

A defendant who pleaded guilty without an affirmative expression by the trial court informing him that by pleading guilty he waived his constitutional right against self-incrimination, was entitled to an evidentiary hearing on the issue of whether his guilty plea was involuntarily and unintelligently made. Although the defendant’s petition to the court to accept his plea of guilty recited that there was “no constitutional right or reason why this court should not accept this plea and enter sentence thereon,” this was not sufficient to show that he was advised or informed of his constitutional right against self-incrimination. Horton v. State, 584 So. 2d 764, 1991 Miss. LEXIS 459 (Miss. 1991).

Defendant was entitled to a hearing on his petition for leave to withdraw his guilty plea, on the asserted basis that he had received incorrect advice from counsel regarding the length of his sentence and the terms of his plea bargain. Tiller v. State, 440 So. 2d 1001, 1983 Miss. LEXIS 2981 (Miss. 1983).

51. –Videotapes, self-incrimination.

Admission of a redacted video of defendant’s second interrogation constituted harmless error beyond a reasonable doubt. All of these statements were cumulative of statements defendant gave in the properly admitted first interrogation that took place 30 minutes prior to the commencement of the second interrogation. Hutto v. State, 227 So.3d 963, 2017 Miss. LEXIS 180 (Miss. 2017), cert. denied, — U.S. —, 138 S. Ct. 983, 200 L. Ed. 2d 262, 2018 U.S. LEXIS 1361 (U.S. 2018).

Admission of videotape of drug transaction did not force defendant to testify against himself. Crenshaw v. State, 513 So. 2d 898, 1987 Miss. LEXIS 2753 (Miss. 1987).

52. – Physical evidence, self-incrimination.

Because defendant’s Fifth Amendment right against self-incrimination was not violated when defendant gave her statements to the officers that evidence of the murders could be found at the county dump, the trial court did not err in denying her motion to suppress that evidence as fruit of the poisonous tree. Chamberlin v. State, 989 So. 2d 320, 2008 Miss. LEXIS 352 (Miss. 2008), cert. denied, 555 U.S. 1106, 129 S. Ct. 908, 173 L. Ed. 2d 122, 2009 U.S. LEXIS 495 (U.S. 2009).

Miranda warnings protected defendant’s Fifth Amendment right to be free of compulsory self-incrimination, but did not extend to nontestimonial evidence, such as the vials of crack cocaine defendant took from his pockets on police orders after he was lawfully arrested; therefore, that he had not been advised of his Miranda rights did not affect the admissibility of the cocaine. McKee v. State, 878 So. 2d 232, 2004 Miss. App. LEXIS 171 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 961 (Miss. 2004).

Although rape defendant’s consent to procurement of pubic hairs was improperly obtained in violation of the constitutional right against self-incrimination after defendant had invoked the right to counsel, the error was harmless, as the evidence was of a scientific nature, and not of a communicative nature, and the evidence was not protected by the right against self-incrimination; additionally, the evidence obtained was subject to a search warrant, for which probable cause clearly existed. Forrest v. State, 2003 Miss. App. LEXIS 706 (Miss. Ct. App. Aug. 12, 2003), op. withdrawn, sub. op., 863 So. 2d 1056, 2003 Miss. App. LEXIS 1255 (Miss. Ct. App. 2003), op. withdrawn, 2004 Miss. App. LEXIS 112 (Miss. Ct. App. Jan. 20, 2004).

Section 63-11-8, which mandates that blood be taken from any driver involved in a fatal accident regardless of the existence of probable cause to believe that alcohol or drugs were involved, does not violate the privilege against self-incrimination contained in the Fifth Amendment to the United States Constitution and Article 3, § 26 of the Mississippi Constitution. McDuff v. State, 763 So. 2d 850, 2000 Miss. LEXIS 110 (Miss. 2000).

There was no violation of the defendant’s right not to incriminate himself when the state presented evidence at trial of the defendant’s refusal to submit to the gunpowder residue test. Hubbert v. State, 759 So. 2d 504, 2000 Miss. App. LEXIS 196 (Miss. Ct. App. 2000).

The taking of a handwriting exemplar does not violate the Fifth Amendment privilege against self-incrimination. Burns v. State, 729 So. 2d 203, 1998 Miss. LEXIS 567 (Miss. 1998), cert. denied, 527 U.S. 1041, 119 S. Ct. 2406, 144 L. Ed. 2d 804, 1999 U.S. LEXIS 4526 (U.S. 1999).

The obtaining of samples of the defendant’s blood, hair and saliva did not violate his constitutional right against self-incrimination. Wesley v. State, 521 So. 2d 1283, 1988 Miss. LEXIS 6 (Miss. 1988).

Requiring a defendant to exhibit his scarred hands to a witness for identification purposes was not a violation of the defendant’s constitutional right against self-incrimination. Porter v. State, 519 So. 2d 1230, 1988 Miss. LEXIS 154 (Miss. 1988).

Defendant was not denied constitutional right to fair trial where he alleged that small particle of skin from abrasion on his right index finger was material, exculpatory evidence that had been intentionally destroyed or lost by state, where there was nothing in testimony suggesting prosecutorial bad faith and where record contained little suggesting that skin particle would have played significant role at trial. Tolbert v. State, 511 So. 2d 1368, 1987 Miss. LEXIS 2681 (Miss. 1987), cert. denied, 484 U.S. 1016, 108 S. Ct. 723, 98 L. Ed. 2d 672, 1988 U.S. LEXIS 259 (U.S. 1988).

The taking of a blood sample from a defendant’s body following his arrest did not amount to forced self-incrimination in violation of his Fifth Amendment rights. Williams v. State, 434 So. 2d 1340, 1983 Miss. LEXIS 2727 (Miss. 1983), but see Fisher v. Eupora, 587 So. 2d 878, 1991 Miss. LEXIS 669 (Miss. 1991).

To require a prisoner to exhibit himself for the purpose of identification or to submit to the taking of photographs and fingerprints does not violate the prisoner’s constitutional rights against self-incrimination. Smith v. State, 229 So. 2d 551, 1969 Miss. LEXIS 1246 (Miss. 1969).

Admission of testimony of chief of police that he required defendant to put on overcoat found in his room for purposes of identification was not error as requiring defendant to give evidence against himself. Richardson v. State, 168 Miss. 788, 151 So. 910, 1934 Miss. LEXIS 356 (Miss. 1934).

53. –Fingerprints, self-incrimination.

While defendant clearly has right not to testify, he may not invoke that right and avoid cross-examination while claiming right to have his former testimony put before jury. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Obtaining fingerprint evidence violates the Fourth and Fourteenth Amendments to the federal constitution, so as to make such evidence inadmissible in a state criminal trial, where (1) the fingerprints were obtained while the accused was detained at police headquarters without probable cause for his arrest, (2) the detention at police headquarters of the accused was not authorized by a judicial officer, (3) the accused was unnecessarily required to undergo two fingerprinting sessions, and (4) the accused was not merely fingerprinted during the first of the two sessions, but was also subjected to interrogation. Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676, 1969 U.S. LEXIS 1869 (U.S. 1969).

54. – Psychiatric examination, self-incrimination.

Because the inmate presented mental-health related defenses in both the guilt and sentencing phases of his trial, he waived his right to refuse to participate in an evaluation by the State’s experts to develop evidence to rebut the defenses and obviated the need for Estelle warnings. Crawford v. State, 218 So.3d 1142, 2016 Miss. LEXIS 305 (Miss. 2016).

In a capital murder case, the inmate’s counsel were not ineffective for failing to protect the inmate’s Fifth Amendment right against self-incrimination and Sixth Amendment rights to counsel and due process when his attorneys allowed him to be interviewed by the State’s psychological and psychiatric experts because the inmate answered the doctors’ questions with full knowledge of his rights. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

There was no violation of the defendant’s privilege against self-incrimination where the defendant requested appointment of a psychiatrist to explore possible mental health issues as mitigating factors in his defense and the trial court, over defense objection, ordered that a copy of the report be provided to the prosecution, notwithstanding the defendant’s claim that he had no intention of offering the expert testimony of the psychiatrist. Jordan v. State, 786 So. 2d 987, 2001 Miss. LEXIS 109 (Miss. 2001), cert. denied, 534 U.S. 1085, 122 S. Ct. 823, 151 L. Ed. 2d 705, 2002 U.S. LEXIS 318 (U.S. 2002).

The Fifth Amendment was not implicated by the testimony of a court-appointed physician where (1) the defendant refused to speak to the physician whose testimony was based solely on his observation of the defendant’s appearance, demeanor, and participation in his competency hearing, and (2) the physician’s testimony was presented only for rebuttal during the sentencing proceeding. Evans v. State, 725 So. 2d 613, 1997 Miss. LEXIS 389 (Miss. 1997), cert. denied, 525 U.S. 1133, 119 S. Ct. 1097, 143 L. Ed. 2d 34, 1999 U.S. LEXIS 1510 (U.S. 1999).

The Fifth Amendment privilege against self-incrimination is not violated by a court order compelling a defendant to submit to a psychiatric examination, even though the defendant may plan to use no expert testimony at trial to support his insanity defense. Porter v. State, 492 So. 2d 970, 1986 Miss. LEXIS 2534 (Miss. 1986).

55. –Cross-examination, self-incrimination.

When criminal defendant, with no prompting by state, on own volition chooses to mislead jury into thinking that no person has even asked him about crimes for which he is charged, state is entitled to challenge statement by cross-examining defendant about defendant’s pretrial silence when questioned by authorities. Brock v. State, 483 So. 2d 358, 1986 Miss. LEXIS 2402 (Miss. 1986), but see McCarty v. State, 554 So. 2d 909, 1989 Miss. LEXIS 499 (Miss. 1989).

Where defendant voluntarily took the stand as a witness in his own defense, he became subject to cross-examination as to the reason why the victim was shot and cut, and why he had the victim’s car; by voluntarily assuming the stand, defendant waived his right to invoke the Fifth Amendment privilege against self-incrimination. Brewer v. State, 459 So. 2d 293, 1984 Miss. LEXIS 1987 (Miss. 1984).

In a prosecution of a pastor of a church for allegedly assaulting with intent to kill a former treasurer of the church, it was error for the trial court to preclude defense counsel from asking, on cross-examination, whether former treasurer had had shortage in his account while treasurer, especially where former treasurer had not claimed for himself the constitutional protection against self-incrimination. Ridgeway v. State, 245 Miss. 506, 148 So. 2d 513, 1963 Miss. LEXIS 531 (Miss. 1963).

56. – Waiver of rights, self-incrimination.

State did not satisfy its burden of proving beyond a reasonable doubt that defendant had waived her Miranda rights; defendant requested counsel by stating she had an attorney and could use him, but the officer crossed the line in clarifying this, and defendant did not initiate further conversation with the officer, and thus the trial court abused its discretion in denying defendant’s motion to suppress. Downey v. State, 144 So.3d 146, 2014 Miss. LEXIS 389 (Miss. 2014).

Defendant called the State witness on her cell phone immediately after the shooting and made incriminating admissions, and approximately a month after the shooting, law enforcement provided defendant with Miranda warnings, and upon being so advised, he chose not to exercise his right to remain silent. Instead, he made oral statements to law enforcement disclaiming his connection to the shooting, which was admissible under Miss. R. Evid. 801(d)(2); therefore, the case presented no violation of post-Miranda silence. Robinson v. State, 40 So.3d 570, 2009 Miss. App. LEXIS 720 (Miss. Ct. App. 2009).

Pursuant to the Fifth Amendment, defendant’s statements were properly obtained in accordance with her Miranda rights because the police stopped questioning her when she stated that she did not want to answer questions, she waived her right to remain silent, she did not explicitly request that she be provided counsel, and she initiated one interview with the police. Chamberlin v. State, 989 So. 2d 320, 2008 Miss. LEXIS 352 (Miss. 2008), cert. denied, 555 U.S. 1106, 129 S. Ct. 908, 173 L. Ed. 2d 122, 2009 U.S. LEXIS 495 (U.S. 2009).

There was substantial evidence that defendant understood English and validly waived his Miranda rights because (1) he had completed nine years of formal education, which included two years of English classes; (2) all conversations between defendant and the arresting officers were in English; (3) the arresting officers testified that defendant never asked the police officers to explain any English words to him; (4) all of the officers testified that defendant understood and spoke the English language without an interpreter; (5) defendant was given a chance to read the Miranda waiver form before signing it; (6) he gave his statement in English; (7) defendant was not threatened or intimidated, nor was he offered any promises, hopes, or rewards for his confession; and (8) defendant’s estranged wife testified that she and defendant communicated in English during their marriage. Chim v. State, 972 So. 2d 601, 2008 Miss. LEXIS 40 (Miss. 2008).

Because an officer’s informing defendant that his requested counsel would not represent him was not interrogation, defendant’s subsequent statement that he wanted to talk was on his own initiative, and since he then executed an express waiver of rights, his confession was voluntary. Bryant v. State, 853 So. 2d 814, 2003 Miss. App. LEXIS 491 (Miss. Ct. App.), cert. denied, 852 So. 2d 577, 2003 Miss. App. LEXIS 880 (Miss. Ct. App. 2003).

Defendant’s right against self-incrimination was not violated when he gave statements implicating himself in a murder as defendant waived his right against self-incrimination by agreeing to talk to police and telling them how the murder occurred. Grayson v. State, 806 So. 2d 241, 2001 Miss. LEXIS 303 (Miss. 2001), cert. denied, 537 U.S. 973, 123 S. Ct. 466, 154 L. Ed. 2d 329, 2002 U.S. LEXIS 7800 (U.S. 2002).

Evidence was sufficient to establish that the defendant waived his privilege against self-incrimination, notwithstanding that the Miranda warning procedure did not include delivering a written listing of his rights to the defendant and that the officers did not obtain a written statement from him of his understanding and knowing waiver of those rights, where the defendant did not testify in support of his suppression motion and did not present any other witnesses to contradict an officer’s testimony that the defendant was informed, understood, and waived his right against self-incrimination. Dees v. State, 758 So. 2d 492, 2000 Miss. App. LEXIS 222 (Miss. Ct. App. 2000).

Under a totality of the circumstances analysis, the defendant knowingly, understandingly, freely and voluntarily waived her Miranda rights, and her statements were admissible; while it certainly would have been permissible, and perhaps desirable, for law enforcement officials to inform the defendant that her parents were in the process of hiring an attorney for her and that an attorney had called to speak with her, they were not under a legal obligation to do so. Wilhite v. State, 791 So. 2d 231, 2000 Miss. App. LEXIS 302 (Miss. Ct. App. 2000).

The defendant waived any right against self-incrimination with regard to the introduction into evidence of oral statements made by the defendant to an inmate where (1) the other inmate was not in any way involved or implicated in the crimes charged against the defendant, and (2) the other inmate approached the state with the information and was not solicited by the state to act as an informant against the defendant. Humphrey v. State, 759 So. 2d 368, 2000 Miss. LEXIS 101 (Miss. 2000).

The refusal of the defendant to sign a waiver of rights form did not constitute an invocation of his Fifth Amendment rights; thus, where the officer who had started the questioning of the defendant honored his wishes and stopped questioning him, thereby giving him the opportunity to exercise his rights to remain silent and to obtain an attorney, the defendant’s subsequent volunteering of information reasonably led to the conclusion that he did not, in fact, wish to invoke his right to remain silent. Pool v. State, 1999 Miss. App. LEXIS 483 (Miss. Ct. App. July 27, 1999), aff'd in part and rev'd in part, 764 So. 2d 440, 2000 Miss. LEXIS 191 (Miss. 2000).

A criminal defendant does not waive his Fifth Amendment right against self-incrimination by demonstrating the fit of shoes introduced by the state. Lewis v. State, 725 So. 2d 183, 1998 Miss. LEXIS 609 (Miss. 1998).

The court rejected the defendant’s contention that he did not make a knowing and intelligent waiver of his right to remain silent where (1) he drafted and signed a waiver form which allowed the use of his statement by federal, but not state, authorities, (2) it appeared that the form was intended to protect the defendant’s attorney from future claims if ineffective assistance of counsel, and (3) the form was not discussed with law enforcement officers and they were not aware of the limiting language inserted by the defendant. Evans v. State, 725 So. 2d 613, 1997 Miss. LEXIS 389 (Miss. 1997), cert. denied, 525 U.S. 1133, 119 S. Ct. 1097, 143 L. Ed. 2d 34, 1999 U.S. LEXIS 1510 (U.S. 1999).

A murder defendant’s initial refusal to sign a waiver of rights form did not constitute a demand for an attorney where he was not questioned again until more than 32 hours had lapsed when he was presented with incriminating physical evidence connecting him to the crime, and he was again advised of his rights before further questioning; thus, admission of his confession into evidence did not violate his constitutional right against compulsory self-incrimination or right to an attorney. Thorson v. State, 653 So. 2d 876 (Miss. 1994), reh’g denied (Miss. Apr. 20, 1995).

A defendant’s waiver of his right to counsel and his right to remain silent when he executed a written waiver prior to confessing could not be found to be voluntary where his confession given immediately thereafter was involuntary due to improper collusion by law enforcement interrogators, since the defendant’s waiver of his right and his confession were inextricably bound and were the product of prolonged coercive police interrogation. Abram v. State, 606 So. 2d 1015, 1992 Miss. LEXIS 448 (Miss. 1992), overruled in part, Foster v. State, 961 So. 2d 670, 2007 Miss. LEXIS 315 (Miss. 2007), overruled in part, Holly v. Mississippi, 2011 U.S. App. LEXIS 24853 (5th Cir. Miss. Dec. 13, 2011).

A former husband waived his privilege against self-incrimination when he took the witness stand and testified on the merits of the case in a contempt action brought by his former wife who alleged that he failed to abide by their judgment of divorce; an objection made at the close of trial was much too late to object to testimony which was incriminating. Since the contempt hearing was a quasi-criminal proceeding, the former husband had no right to forbid questioning altogether, but once he was asked anything outside of the innocuous arena–the introductory questions–he should have invoked his privilege on a question by question basis. Moore v. Moore, 558 So. 2d 834, 1990 Miss. LEXIS 59 (Miss. 1990).

There are practical and institutional limitations upon the Supreme Court’s ability to find facts; consequently, much deference is placed upon the trial judge’s full discharge of his or her responsibility to make findings of fact as to the question of whether Miranda rights have been intelligently, knowingly and voluntarily waived. However, when the trial judge fails to make specific findings and only makes general findings thereby allowing admissibility of evidence, the Supreme Court’s scope of review is considerably broader particularly when the trial judge’s findings on the precise points at issue on appeal are not clearly inferable from the findings made. McCarty v. State, 554 So. 2d 909, 1989 Miss. LEXIS 499 (Miss. 1989).

In determining whether a confession was freely and voluntarily given, the circuit court sits as the factfinder. The trial judge first must determine whether the accused has been adequately warned and, under the totality of circumstances, the court then must determine if the accused voluntarily and intelligently waived his or her privilege against self-incrimination. McCarty v. State, 554 So. 2d 909, 1989 Miss. LEXIS 499 (Miss. 1989).

The fact of a waiver of the privilege against self-incrimination in one proceeding is limited to a waiver for that proceeding and that proceeding only. In re Knapp, 536 So. 2d 1330, 1988 Miss. LEXIS 606 (Miss. 1988).

A criminal defendant’s deposition in a civil action arising out of the same transaction as the criminal action was admissible in the later criminal trial in which the defendant elected not to testify. The defendant waived his right against self-incrimination by answering the deposition questions even though he was not aware that any criminal prosecution was likely at the time he was deposed, was not represented by an attorney at the deposition, and was not advised by anyone that his answers could be termed voluntary and used against him in a criminal proceeding. Reed v. State, 523 So. 2d 62, 1988 Miss. LEXIS 66 (Miss. 1988).

When witness voluntarily took the stand in a perjury trial and testified on behalf of the defendant therein as to the truthfulness of witness’ brother’s statements concerning a murder, to which witness had pled guilty and had been sentenced, witness waived his Fifth Amendment right and was subject to cross-examination on all relevant and material matters. Hentz v. State, 496 So. 2d 668, 1986 Miss. LEXIS 2712 (Miss. 1986).

If the right to counsel or the privilege against self-incrimination is waived at an initial trial which is later reversed, on appellate review, on retrial defendant can reinvoke rights previously waived. State v. Caldwell, 492 So. 2d 575, 1986 Miss. LEXIS 2531 (Miss. 1986).

Under totality of circumstances test, waiver of Miranda rights is not rendered involuntary merely because suspect is in hospital when confession is taken, and is experiencing some pain and discomfort, where suspect is not under sedative or medication that would impair memory or ability to voluntarily waive rights. Gavin v. State, 473 So. 2d 952, 1985 Miss. LEXIS 2163 (Miss. 1985).

Where the police read the defendant her Miranda rights and she responded “I understand, but I don’t understand if I should have a lawyer or not,” her waiver of her rights, as guaranteed under the Fifth Amendment, was knowing and intelligent in that, although she may not have been able to decide whether she wanted an attorney, the record was clear that she understood that she had the right to one; it is not the responsibility of police officers to decide for an accused whether the accused should retain an attorney, it is sufficient that the accused understand that the retention of counsel is a viable option. Lockett v. State, 459 So. 2d 246, 1984 Miss. LEXIS 1930 (Miss. 1984).

A defendant in a capital murder prosecution knowingly and voluntarily waived his right to remain silent and, accordingly, the questioning to which he was submitted was not constitutionally prohibited, where, although he was not pleased with the “waiver of rights” language in the written waiver form that he signed, he nevertheless discussed the homicide in question with officers and gave a video-taped statement after having been warned of his constitutional prerogatives, after he had executed a formal waiver of those rights, and after he had visited with his mother who was present when the statement was given, where there was no inducement or coercion to obtain the statement from defendant by way of promise of hope or reward, and where there was no evidence of physical or mental coercion for the statement through delay or any violation of defendant’s Miranda rights. Lanier v. State, 450 So. 2d 69, 1984 Miss. LEXIS 1695 (Miss. 1984).

Where a judgment debtor by written agreement bound himself by all the provisions of an application for a surety bond, wherein he promised the surety access to all books and records, and agreed to furnish financial statements and pledged all of his assets to indemnify the surety in the event of loss, and thereby induced the surety to right a performance and payment bond in excess of $2,000,000, the judgment debtor waived his privilege against self-incrimination and was estopped from claiming the privilege as a ground for refusing to furnish a financial statement, where there was some question whether he had concealed or removed from the state assets subject to a judgment lien, and the debtor’s refusal to furnish the statement in compliance with a Mississippi chancery court decree justified an adjudication of civil contempt. Morgan v. Thomas, 321 F. Supp. 565, 1970 U.S. Dist. LEXIS 9645 (S.D. Miss. 1970), rev'd, 448 F.2d 1356, 1971 U.S. App. LEXIS 8009 (5th Cir. Miss. 1971).

It is not necessary for an officer to warn every person he talks to about a crime of his constitutional rights nor is it necessary that a person being questioned sign a waiver waiving the presence of counsel, until such time as it becomes apparent that the person being interrogated is likely to be charged with a crime; after such time the officer must promptly warn the person of his rights so that such person will not be required to give information that may incriminate him. Smith v. State, 229 So. 2d 551, 1969 Miss. LEXIS 1246 (Miss. 1969).

An accused may waive his constitutional immunity from giving testimony against himself, and does so when he takes the stand and testifies on the merits of the case. Autry v. State, 230 Miss. 421, 92 So. 2d 856, 1957 Miss. LEXIS 385 (Miss. 1957).

57. Due process – In general.

To the extent that a police chief’s testimony that defendant declined to interview upon his request referenced pre-Miranda silence, the evidence did not constitute plain error because the trial court did not deviate from a legal rule, and the error was not plain, clear, or obvious in light of the split of authority on the issue. Swinney v. State, 241 So.3d 599, 2018 Miss. LEXIS 8 (Miss. 2018).

Petitioner was allowed to proceed with a motion for access to his experts for the purpose of evaluation, testing, and any other purpose reasonably believed by counsel to be necessary for the full litigation of his post-conviction claims. As a matter of due process, prisoners sentenced to death should be granted access to their experts so long as the access complied with corrections rules and regulations and so long as those rules and regulations did not violate their due process rights. Grayson v. State, 118 So.3d 118, 2013 Miss. LEXIS 163 (Miss. 2013).

Police officer’s testimony referencing the store manager’s comments that defendant was shoplifting was not hearsay and was properly admitted where defendant was not charged with shoplifting and the testimony complained of was not used to prove the truth of whether or not defendant shoplifted; defendant was charged with feloniously eluding a law enforcement in a motor vehicle and the purpose of the testimony was to show why the officer followed defendant into the parking lot where she fled from him. Watson v. State, 8 So.3d 901, 2008 Miss. App. LEXIS 637 (Miss. Ct. App. 2008), cert. denied, 12 So.3d 531, 2009 Miss. LEXIS 217 (Miss. 2009).

Identification of defendant was not impermissibly suggestive because the men in the photographs were all African-American males, had the same build, and possessed the same facial features in accordance with the store clerk’s description of the armed robber. The fact that defendant was the only individual wearing a coat was a minor difference and did not rise to the level of impermissible suggestion. Jones v. State, 993 So. 2d 386, 2008 Miss. App. LEXIS 232 (Miss. Ct. App.), cert. denied, 997 So. 2d 924, 2008 Miss. LEXIS 503 (Miss. 2008).

Defendant’s convictions for three counts of manslaughter for his actions in 1964 were appropriate in part because his due process rights were not violated; he claimed that he suffered actual prejudice due to deceased witnesses and deteriorated memories but he failed to show how he was prejudiced because all six of his witnesses testified live at his 2005 trial and he did not suggest any witness he was unable to call on his behalf as a result of the 41-year delay. Killen v. State, 958 So. 2d 172, 2007 Miss. LEXIS 207 (Miss. 2007).

State Supreme Court rejected defendant’s claim that he was deprived of his right to a fair trial because some jurors saw him shackled, as the issue was not raised by defendant on his direct appeal. Doss v. State, 882 So. 2d 176, 2004 Miss. LEXIS 847 (Miss. 2004), cert. denied, 544 U.S. 1062, 125 S. Ct. 2513, 161 L. Ed. 2d 1113, 2005 U.S. LEXIS 4399 (U.S. 2005).

Although the court was not without the authority to decide the merits of an inmate’s application pursuant to Miss. Code Ann. §99-39-27(7), the court found that due process required the court to allow the inmate’s motion to be filed in the trial court for the consideration of mental retardation evidence as a defense to the death penalty as cruel and unusual punishment under U.S. Const. amend. VIII. Chase v. State, 873 So. 2d 1013, 2004 Miss. LEXIS 548 (Miss. 2004).

In defendant’s capital murder case, defendant’s right to a fair trial was not violated by the trial court’s admission of testimony about the sexual assault of the victim, which defendant was not charged with, that occurred in the moments preceding her murder where the sexual molestation was integrally related to her murder such that one could not coherently present the facts of her demise without reference to it, and it described part of the res gestae of the crime charged and helped shed light on defendant’s motive. McGowen v. State, 859 So. 2d 320, 2003 Miss. LEXIS 413 (Miss. 2003).

In a prosecution of defendant for the unlawful sale of cocaine, defendant’s argument that he was denied due process because the jury selection process was not adequately reflected in the record failed; the supplemented record clearly indicated that a prospective juror, as well as several other potential jurors, was struck for cause. Martin v. State, 832 So. 2d 611, 2002 Miss. App. LEXIS 854 (Miss. Ct. App. 2002).

Because the testimony given by a witness was cumulative, any error in the admission of that evidence did not rise to the level of a due process violation. Beckwith v. Anderson, 89 F. Supp. 2d 788, 2000 U.S. Dist. LEXIS 2238 (S.D. Miss. 2000).

A bill which created a sewer district and an ordinance that established a gray-water collection system and that regulated the use of public and private sewers and drains were not unconstitutional. Croke v. Lowndes County Bd. of Supervisors, 733 So. 2d 837, 1999 Miss. LEXIS 100 (Miss. 1999).

The jurisdictional provisions of the Youth Court Act in §43-21-151 do not violate the rights to due process and equal protection under the United States Constitution and the Mississippi Constitution. Miller v. State, 740 So. 2d 858, 1999 Miss. LEXIS 173 (Miss. 1999).

The defendant city’s refusal to rezone residential property to light commercial was not a denial of due process, notwithstanding that property across the street had already been commercially developed by various businesses, since the city’s decision was “fairly debatable.” Burdine v. City of Greenville, 755 So. 2d 1154, 1999 Miss. App. LEXIS 332 (Miss. Ct. App. 1999).

The defendant was not amenable to the exercise of in personam jurisdiction over him by the a county chancery court in a contempt proceeding alleging that he was in default on payment of certain amounts of child support due under an escalation clause contained in the property settlement agreement between the parties; although the parties were married in Mississippi and the plaintiff and the child lived in Mississippi after the parties’ divorce, the defendant had never been a resident of Mississippi, had no significant contacts with Mississippi, and the judgment sought to be enforced was a Tennessee decree. McCubbin v. Seay, 749 So. 2d 1127, 1999 Miss. App. LEXIS 481 (Miss. Ct. App. 1999).

Neither the Fifth or Sixth Amendment rights of the defendant were violated when the trial court had him removed from the courtroom during a hearing on a motion for mistrial where the state requested that he be removed because the legal issue to be argued concerned a question that he had been asked on the stand, but to which he had yet to give an answer. Ludgood v. State, 710 So. 2d 1222, 1998 Miss. App. LEXIS 140 (Miss. Ct. App. 1998).

Impeachment evidence as well as exculpatory material comes within the scope of the Brady rule; failure to produce does not depend upon the good faith or bad faith of the prosecution, nor upon the specificity of the defense request. Malone v. State, 486 So. 2d 367, 1986 Miss. LEXIS 3139 (Miss. 1986).

Guarantee of due process does not require that an accused have more than one full opportunity to be heard. Simmons v. State, 197 Miss. 326, 20 So. 2d 64, 21 So. 2d 822, 1945 Miss. LEXIS 323 (Miss. 1945).

58. –Statutes and court rules, due process.

Retroactive application of §81-5-105, limiting the personal liability of a former officer of a failed federal savings and loan association to gross negligence, intentional tortious conduct, intentional breach of the duty of loyalty, and corporate waste, did not violate due process as expressed in the federal and state constitutions because a vested property right in the tort action did not arise under Mississippi law until the claim was reduced to judgment; where a plaintiff has no vested right in tort claims, abrogation of those claims by legislative enactment does not constitute a deprivation of property in violation of due process. Resolution Trust Corp. v. Scott, 887 F. Supp. 937, 1995 U.S. Dist. LEXIS 8119 (S.D. Miss. 1995).

Rule providing that case could not be heard or re-heard en banc unless majority of all judges in regular active service, including any who may be recused in particular case, vote that case be heard or re-heard en banc does not deny equal protection and due process. United States v. Nixon, 827 F.2d 1019 (5th Cir. Miss. 1987), cert. denied, 484 U.S. 1026, 108 S. Ct. 749, 98 L. Ed. 2d 762, 1988 U.S. LEXIS 349 (U.S. 1988).

Mississippi’s system for awarding punitive damages is not unconstitutional, and therefore the imposition of punitive damages did not violate a defendant’s constitutional right to due process. Ciba-Geigy Corp. v. Murphree, 653 So. 2d 857, 1994 Miss. LEXIS 354 (Miss. 1994).

Section 97-3-7(2) is not unconstitutionally vague on the ground that it does not define the term “serious bodily harm,” particularly when applied in a case involving brutal injuries; in more ambiguous cases, prosecutors and trial courts should refer to the definition of “serious bodily injury” set out in § 210.0 of the Model Penal Code. Fleming v. State, 604 So. 2d 280, 1992 Miss. LEXIS 382 (Miss. 1992).

A mother whose parental rights were terminated under [former] §93-15-103(3)(e) on the ground that there was a “substantial erosion of the relationship” between her and 2 of her children failed to show that the statute was unconstitutionally vague, since a person of common intelligence should have been aware that the result of a factual situation such as the mother’s could well be the termination of one’s parental rights. If the statute were more specific, then the cases in which it could be applied could be so drastically reduced as to make it ineffective in protecting the children it was meant to serve. Vance v. Lincoln County Dep't of Public Welfare, 582 So. 2d 414, 1991 Miss. LEXIS 360 (Miss. 1991).

A statute providing for incorporation of a municipality by the proclamation of the Governor, does not violate due process. Gambrill v. Gulf States Creosoting Co., 216 Miss. 505, 62 So. 2d 772, 1953 Miss. LEXIS 660 (Miss. 1953).

59. –Local ordinances, due process.

Requiring a landowner to pay for a sewer connection after he refused a free connection did not violate equal protection. The owner was notified that after a certain period of time, he would be responsible for the connection costs, and he was treated no differently than any other person who refused to allow the district to connect him for free Croke v. Southgate Sewer Dist., 857 So. 2d 774, 2003 Miss. LEXIS 557 (Miss. 2003).

A city’s noise control ordinance, which prohibited “unnecessary or unusual noises... which either annoys, injures or endangers the comfort, repose, health or safety of others...,” violated the due process clauses of the federal and state constitutions because it failed to provide clear notice and sufficiently definite warning of the conduct that was prohibited. A statute is unconstitutionally vague when the standard of conduct it specifies is dependent upon the individualized sensitivity of each complainant, and whether a noise is “unnecessary,” “unusual” or “annoying” depends upon the ear of the listener. Nichols v. Gulfport, 589 So. 2d 1280, 1991 Miss. LEXIS 796 (Miss. 1991).

Any violation of the county’s regulations regarding notice of noncompliance with the county’s subdivision ordinance did not deprive a developer and lot owners of their due process right with respect to the county’s action for declaratory and injunctive relief to bring the lot into compliance with the ordinance since such a procedure was not a prerequisite to the filing and prosecution of the lawsuit. Additionally, the rights of the developer and the lot owners in the premises was reasonable advance notice of the lawsuit and the opportunity to appear and be heard. Johnson v. Hinds County, 524 So. 2d 947, 1988 Miss. LEXIS 194 (Miss. 1988).

60. –Administrative proceedings, due process.

The complaint procedure established by the Supreme Court for attorney disciplinary proceedings does not violate due process on the ground that it does not provide for an appeal to any other state court. Asher v. The Mississippi Bar, 661 So. 2d 722, 1995 Miss. LEXIS 449 (Miss. 1995).

The complaint procedure established by the Supreme Court for attorney disciplinary proceedings does not violate due process on the ground that members of the complaint tribunal are also members of the Mississippi Bar. Asher v. The Mississippi Bar, 661 So. 2d 722, 1995 Miss. LEXIS 449 (Miss. 1995).

There is no suggestion of partiality or impropriety in the use of an assistant attorney general as a hearing officer in a hearing before the Department of Natural Resources Permit Board; the attorney general’s office affords counsel to state agencies and there is no conflict or suggestion of unfairness in this arrangement. Thus, an environmental organization, which objected to a modified air emissions permit and was afforded an administrative hearing before the Natural Resources Permit Board, was not denied due process of law on the ground that the hearing officer who sat with the Board was a special assistant attorney general. Furthermore, the environmental organization waived any objections it might have had where it made no objection before the Board and proceeded through the hearing without objection, and the organization admitted having knowledge of the identity of the hearing officer as an assistant attorney general well before the hearing and in time to object if any legitimate objection existed. United Cement Co. v. Safe Air for Environment, Inc., 558 So. 2d 840, 1990 Miss. LEXIS 61 (Miss. 1990).

61. –Property interests, due process.

Failure of a water management district to give notice of its petition to acquire an easement to the life tenants and remaindermen of a piece of property and failure to join the life tenants, before the entering upon and taking possession of the property, was a denial of due process. The life tenants’ and remaindermen’s due process rights were violated by the taking of their property without notice and without a pre-deprivation hearing. Webb v. Town Creek Master Water Mgmt. Dist., 903 So. 2d 701, 2005 Miss. LEXIS 236 (Miss. 2005).

In a products liability case arising from use of a prescription drug, the trial court abused its discretion by improperly changing venue to Claiborne County because the record was replete with evidence that defendant drug company had sufficiently proved bias in the community of Claiborne County. Therefore, although the trial court correctly found that it was proper to change venue from Jefferson County, Claiborne County was not a proper venue in which a fair trial could be conducted. Janssen Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31, 2004 Miss. LEXIS 494 (Miss. 2004), modified, 2004 Miss. LEXIS 1002 (Miss. Aug. 5, 2004).

General guarantees of municipal level fire protection in annexation ordinance did not create protected property rights in homeowner personally. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

Homeowner did not have federally protected property interest in fire protection by city; Constitution did not confer affirmative rights to governmental aid. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

Property interest in review of his claim was necessary to support homeowner’s assertion that his due process rights were violated by city’s selective payment of claims to some parties from city’s claims fund, but not others. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

The continuance of electrical power is a property interest worthy of due process protections. Thus, the defense of sovereign immunity was not available to a county where a homeowner alleged that he had been damaged when the county and an electrical utility discontinued his electrical power, since sovereign immunity is no defense where a violation of constitutional rights is concerned. Tucker v. Hinds County, 558 So. 2d 869, 1990 Miss. LEXIS 173 (Miss. 1990).

A property owner’s claim of ownership under color of title by virtue of his adverse possession of the property after he purchased the property at a tax sale but before the redemption period had ended and he had the right of possession, was sufficient to apply the “doctrine of relation” back to the date of the tax sale purchase for the purpose of challenging a subsequent zoning ordinance by asserting a pre-existing nonconforming use. In the balancing of public benefit against private property losses, a landowner’s constitutional right under the due process clause prevails. Barrett v. Hinds County, 545 So. 2d 734, 1989 Miss. LEXIS 292 (Miss. 1989).

City is not constitutionally required to reimburse hospital for care furnished to suspect wounded by city police, as municipality’s constitutional duty to obtain necessary medical care for injured detainee does not include corresponding duty to compensate provider of that care. City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 103 S. Ct. 2979, 77 L. Ed. 2d 605, 1983 U.S. LEXIS 91 (U.S. 1983).

Where a licensing agreement between foster parents and the State of Mississippi, as well as state statutes, made clear the foster parent-child relationship was merely a temporary one, there could have been no expectation or entitlement on the part of the foster parents that a child placed in their home would remain permanently in their home. Therefore, the foster parents had no liberty or property interests which were entitled due process protection under the Fifth or Fourteenth Amendments. Crim v. Harrison, 552 F. Supp. 37, 1982 U.S. Dist. LEXIS 16303 (N.D. Miss. 1982).

Labor is property and to deprive laborer and employer of right to contract peaceably with one another is to violate Fifth and Fourteenth Amendments which provide that no persons shall be deprived of life, liberty, or property without due process of law, and that no state shall deprive any person within its jurisdiction equal protection of law. Southern Bus Lines, Inc. v. Amalgamated Ass'n of Street, etc., 205 Miss. 354, 38 So. 2d 765, 1949 Miss. LEXIS 435 (Miss. 1949).

Shareholder of capital stock in an incorporated agricultural association, upon becoming ineligible to hold stock by reason of fact that he is no longer a producer of agricultural products and who is unable to sell or transfer his stock to another eligible producer or organization, is entitled under Code 1942 § 4485 to be paid by the association only the par value of his stock which may be paid by association’s certificate of indebtedness payable out of future earnings, and not the amount representing the proportion that his shares bear to the present assets of the association even though such amount may be greater than the par value of the shares, and such does not deprive the shareholder of property without due process of law in violation of the constitution. Avon Gin Co. v. Bond, 198 Miss. 197, 22 So. 2d 362, 1945 Miss. LEXIS 184 (Miss. 1945).

An employee’s seniority rights constitute “property” within the Fifth Amendment to the Federal Constitution. Stephenson v. New Orleans & N. E. R. Co., 180 Miss. 147, 177 So. 509, 1937 Miss. LEXIS 123 (Miss. 1937).

Sale of the property of a bankrupt by the trustee, free of liens, on at least 10 days’ notice by mail, does not take the property of lien creditors without due process. McRaney v. Riley, 128 Miss. 665, 91 So. 399, 1922 Miss. LEXIS 156 (Miss.), cert. denied, 260 U.S. 727, 43 S. Ct. 90, 67 L. Ed. 484, 1922 U.S. LEXIS 2635 (U.S. 1922).

Congress may not, as to previously made contracts for attorney’s fees for collecting Civil War claims, limit the amount of such fees. Lay v. Lay, 118 Miss. 549, 79 So. 291, 1918 Miss. LEXIS 92 (Miss.), aff'd, 248 U.S. 24, 39 S. Ct. 13, 63 L. Ed. 103, 1918 U.S. LEXIS 1716 (U.S. 1918).

62. –State action, due process.

In an action challenging the plaintiff’s incarceration for nine months in a Madison County jail as a result of a Hinds County detainer, without hearing or court appearance, the plaintiff failed to establish a violation of his Fifth Amendment rights where he failed to allege that the defendants were acting under authority of the federal government. Jones v. City of Jackson, 203 F.3d 875, 2000 U.S. App. LEXIS 1992 (5th Cir. Miss. 2000).

A landlord’s actions in locking up a tenant’s possessions pursuant to §89-7-51(2) did not violate due process requirements where the landlord failed to use the attachment for rent statutes; since §89-7-51 did not authorize the landlord to use self-help to seize the tenant’s property, there was no state action. Bender v. North Meridian Mobile Home Park, 636 So. 2d 385, 1994 Miss. LEXIS 160 (Miss. 1994).

63. –Juveniles, due process.

Minors were entitled to some form of due process prior to being placed in a detention center that placed extensive restrictions on its residents. In Interest of M.I., 519 So. 2d 433, 1988 Miss. LEXIS 38 (Miss. 1988).

64. –Driver’s licenses, due process.

The statutory law providing for pre-hearing suspension of a driver’s license when the driver refuses to submit to a breathalyzer test is not violative of minimum due process requirements. Lavinghouse v. Mississippi Highway Safety Patrol, 620 So. 2d 971, 1993 Miss. LEXIS 255 (Miss. 1993).

65. –Employment and job security, due process.

A 16-year veteran police officer, who had vested permanent employment rights under the civil service laws, resigned on his own volition and was not “constructively discharged” where he obtained legal counsel when he became aware that he was the object of an investigation and resigned his job on his attorney’s advice. Thus, he could not thereafter pursue an untimely claim that he was denied procedural due process. In order to ensure that a civil service employee preserves his or her procedural due process guarantees, he or she should “stay the course” and remain with the job until relieved from the assignment by an official with statutory authority to fire. While the work environment could become the source of some irritation or embarrassment, such embarrassment will usually afford the civil servant nothing in the way of a procedural due process claim after a voluntary resignation. The instances will be few when a claim of constructive discharge will preserve procedural guarantees that the employee has waived by resigning. The wisdom of “staying the course” is especially crucial in light of state law which deems civil service administrative remedies as the exclusive remedy before relief can be sought in state court. Bulloch v. Pascagoula, 574 So. 2d 637, 1990 Miss. LEXIS 798 (Miss. 1990).

The termination of employees of a state facility for the mentally retarded after the employees refused to take a polygraph examination regarding injuries received by a resident under their supervision did not violate the employees’ federally guaranteed right to due process. Jackson v. Hudspeth Mental Retardation Center, 573 So. 2d 750, 1990 Miss. LEXIS 828 (Miss. 1990).

A college professor did not have a property interest protected by due process in his grant of tenure. Section 37-101-15 empowers the Board of Trustees of Institutions of Higher Learning to terminate professors’ employment contracts at any time for malfeasance, inefficiency or contumacious conduct but does not create a legitimate expectation of continued employment for a non-tenured employee. If a state regulation conditions receipt of a benefit upon a discretionary decision of an administrator, there is no legitimate claim of entitlement to the benefit. Wicks v. Mississippi Valley State University, 536 So. 2d 20, 1988 Miss. LEXIS 591 (Miss. 1988).

Although a discharged police officer was denied due process in that the dismissal decision was made one day before the time for his response to the charges expired, the dismissed police officer waived this issue by not raising it before the Civil Service Commission prior to his full evidentiary hearing and he was thus precluded from challenging the pretermination procedure on appeal. Little v. Jackson, 375 So. 2d 1031, 1979 Miss. LEXIS 2461 (Miss. 1979), cert. denied, 445 U.S. 933, 100 S. Ct. 1325, 63 L. Ed. 2d 768, 1980 U.S. LEXIS 1198 (U.S. 1980).

Statutory pretermination procedures for nonprobationary municipal civil service employees do not contain adequate due process safeguards to be followed when discharging, suspending, or demoting covered municipal employees, whose right of continued employment is a property right. Thus, risk reducing procedures must be accorded such employees, including pretermination written notice of the reasons for termination and an effective opportunity to rebut such reasons, the right to respond in writing to the charges made and to respond orally before the official charged with the responsibility of making the termination decision, a written decision on the response of the employee at the earliest practicable date, and, although not required, examination of witnesses, trial or hearing, in the discretion of the responsible official. Little v. Jackson, 375 So. 2d 1031, 1979 Miss. LEXIS 2461 (Miss. 1979), cert. denied, 445 U.S. 933, 100 S. Ct. 1325, 63 L. Ed. 2d 768, 1980 U.S. LEXIS 1198 (U.S. 1980).

66. –Professional licensure, due process.

An attorney who was suspended from the practice of law following a felony conviction in the federal courts and who was disbarred 3 years later at the conclusion of his appeal of the federal conviction, was not denied equal protection or due process rights on the ground that he would be required to wait 3 years longer before reinstatement than an attorney who chose not to appeal a conviction. All disbarred attorneys are treated equally; the disparity of time arises when an attorney resists the disbarment pending his or her appellate procedures. Had the attorney accepted the disbarment following his conviction, no delay in entering a final order of disbarment would have resulted, and therefore there was no unequal treatment or denial of due process. Additionally, the attorney’s disbarment was not retroactive to the date of his suspension since the attorney’s initiative delayed the entry of the final order; retroactivity cannot be applied when the attorney seeks a stay of the final order. Mississippi State Bar v. Nixon, 562 So. 2d 1288, 1990 Miss. LEXIS 264 (Miss. 1990).

The provision of the State Bar Act which provides for automatic suspension of a member who fails to pay the required dues but gives a suspended member power to reinstate himself by payment of delinquent dues, does not violate any constitutional rights because of failure to provide for a judicial hearing. Board of Comm'rs v. Collins, 214 Miss. 782, 59 So. 2d 351, 1952 Miss. LEXIS 521 (Miss. 1952).

67. –Insurers, due process.

The highway patrol had no authority to deliver a stolen pickup truck, which had an altered vehicle identification number and had been seized from an innocent purchaser pursuant to a valid search warrant, to an insurance company, which had paid the owner the full value of the truck under a theft loss insurance policy and was therefore the lawful owner of the vehicle, absent court approval with no advance notice to the innocent purchaser of its intent to do so and without giving him an opportunity to contest the matter in a court of competent jurisdiction; the appropriate procedure would have been for the highway patrol, once the truck served no further purpose in the criminal investigation or prosecution, to make a motion in the justice court for authority to release it to the insurance company, and to give the innocent purchaser and the insurance company reasonable notice of such application and an opportunity to be heard; however, the circuit court erred in directing return of the pickup truck to the innocent purchaser without making the insurance company a party to the hearing or giving it any notice of the proceeding, as this was a blatant violation of the insurance company’s right to due process. Weaver v. State, 597 So. 2d 609, 1992 Miss. LEXIS 177 (Miss. 1992).

68. –Schools and school districts, due process.

The procedures surrounding a school principal’s termination were not “tainted,” and no violation of his due process rights occurred, even though it could have been inferred from a witness’ reluctance to make a statement and from her affidavit. Harris v. Canton Separate Pub. Sch. Bd. of Educ., 655 So. 2d 898, 1995 Miss. LEXIS 269 (Miss. 1995).

The procedures surrounding a school principal’s termination were not “tainted,” and no violation of his due process rights occurred, even though it could have been inferred from a witness’ reluctance to make a statement and from her affidavit that she felt compelled to testify or lose her job, since such “evidence” of coercion was insufficient to overcome the “presumption of honesty and integrity” in the school board members who served as adjudicators and conducted the dismissal hearing. Harris v. Canton Separate Pub. Sch. Bd. of Educ., 655 So. 2d 898, 1995 Miss. LEXIS 269 (Miss. 1995).

The procedures followed at an administrative hearing before 3 members of the school board on a teacher’s 6-month suspension violated the teacher’s right to due process where, during a break in the formal proceedings, the 3 school board members told the teacher that they intended to reject suspension in favor of a formal reprimand, the teacher claimed to have relied on this information and rested her case prematurely, and the board ultimately reached a decision to suspend the teacher; although the teacher was afforded an opportunity to be heard, the school board, by its own actions, prevented her from taking full advantage of her right to present evidence in her favor by leading her to believe that there was no need to present additional evidence. Bowman v. Ferrell, 627 So. 2d 335, 1993 Miss. LEXIS 511 (Miss. 1993).

Where a suspended teacher’s procedural due process rights had been violated at her hearing before the school board, the chancery court erred in ordering the teacher’s reinstatement rather than a rehearing as required by §37-9-113(4). Bowman v. Ferrell, 627 So. 2d 335, 1993 Miss. LEXIS 511 (Miss. 1993).

The fact that an attorney for a school’s board of trustees participates in a dismissal hearing, advises the board and generally runs the hearing affords the employee no grounds for complaint unless it can be shown that in fact the attorney corrupted or otherwise destroyed the impartiality of the process. Hoffman v. Board of Trustees, East Mississippi Junior College, 567 So. 2d 838, 1990 Miss. LEXIS 551 (Miss. 1990).

Only those persons who, out of personal animosity, or personal or financial stake in the decision, are shown of such bias that the presumption of honesty and integrity of school board members is overcome, shall be disqualified from service on a hearing board based on due process considerations. Hoffman v. Board of Trustees, East Mississippi Junior College, 567 So. 2d 838, 1990 Miss. LEXIS 551 (Miss. 1990).

There is no legislative enactment providing teachers’ aides with a valid claim of entitlement to continued employment. Thus, a teacher’s aide’s termination deprived her of no property interest, the taking of which would invoke the due process provisions of the constitution. Harrison County School Bd. v. Morreale, 538 So. 2d 1196, 1989 Miss. LEXIS 51 (Miss. 1989).

Teacher’s constitutional right to due process was not violated by school board despite claim that he was denied fair and impartial hearing because school board had already determined to dismiss him when it informed him of his right to public hearing, and because even though board conducted hearing through hearing officer, the ultimate decision rested with board. First, teacher had made no complaint at time of hearing about possibility of impartiality of school board, and such failure waived point. Second, where board acts both investigatively and adjudicatively, court establishes presumption of honesty and integrity in those serving as adjudicators, and in order to rebut presumption, teacher must show that board members had personal or financial stake in decision, or that there was some personal animosity toward teacher. Finally, showing that board was involved in events preceding termination is not enough, absent showing of either personal animosity, personal stake, or financial stake in decision, to overcome presumption of honesty and integrity of board members. Spradlin v. Board of Trustees, 515 So. 2d 893, 1987 Miss. LEXIS 2871 (Miss. 1987).

Any deprivation of student’s interest in attending school must be attended by at least minimal procedural safeguards, but where suspension is for 10 days or less, due process requires only that student be given oral or written notice of charges against him, basis of accusation, and opportunity to present his side of story. Cole v. Newton Special Municipal Separate School Dist., 676 F. Supp. 749, 1987 U.S. Dist. LEXIS 12455 (S.D. Miss. 1987), aff'd, 853 F.2d 924, 1988 U.S. App. LEXIS 10868 (5th Cir. Miss. 1988).

Even assuming that hearing before school board met minimal procedural safeguards, facts did not establish that hearing given to student by board comported with more formal procedures necessary for long-term suspensions, where it was unclear from facts developed through pleadings and discovery whether or not isolation at issue involved sufficient educational deprivation to warrant being treated as equivalent of suspension; upon returning to school after 10 days suspension, student was required to remain in detention room, isolated from other students and excluded from regular classes. Cole v. Newton Special Municipal Separate School Dist., 676 F. Supp. 749, 1987 U.S. Dist. LEXIS 12455 (S.D. Miss. 1987), aff'd, 853 F.2d 924, 1988 U.S. App. LEXIS 10868 (5th Cir. Miss. 1988).

When student admits to conduct giving rise to suspension, need for due process hearing is obviated, since purpose of hearing is to safeguard against punishment of students who are innocent of accusations against them. Cole v. Newton Special Municipal Separate School Dist., 676 F. Supp. 749, 1987 U.S. Dist. LEXIS 12455 (S.D. Miss. 1987), aff'd, 853 F.2d 924, 1988 U.S. App. LEXIS 10868 (5th Cir. Miss. 1988).

69. – Zoning, due process.

A real estate developer’s due process rights were not violated when he was unable to obtain a building permit to construct apartments since he had no property right to construct the apartments. Bryan v. City of Madison, 213 F.3d 267, 2000 U.S. App. LEXIS 12822 (5th Cir. Miss. 2000), cert. denied, 531 U.S. 1145, 121 S. Ct. 1081, 148 L. Ed. 2d 957, 2001 U.S. LEXIS 1127 (U.S. 2001).

Decision of city fathers in drawing and maintaining line past which commercial development would not be allowed was not arbitrary, capricious, or unreasonable, where there was substantial evidence supporting both sides of rezoning application, thus making ultimate decision fairly debatable; same reasoning applied to denial of assertion that zoning restriction amounted to confiscatory taking in violation of due process of law under constitution because that issue is intertwined with review of whether zoning decision is arbitrary, capricious, or unreasonable. Saunders v. Jackson, 511 So. 2d 902, 1987 Miss. LEXIS 2614 (Miss. 1987).

The due process rights, if any, guaranteed to objectors of a rezoning proposal is reasonable advance notice of the substance of the rezoning proposal together with the opportunity to be heard at all critical stages of the process. Thrash v. Mayor & Comm'rs of Jackson, 498 So. 2d 801, 1986 Miss. LEXIS 2837 (Miss. 1986).

The construction and maintenance of a warehouse for the reception of freight on railroad right-of-way, which had existed as such for more than 50 years prior to the adoption of an ordinance making most of such right-of-way a residential district, held to be a reasonable use of such right-of-way in facilitating the company’s principal business and no more objectionable than the operation of trains, and to be authorized by provision of ordinance excepting existing nonconforming uses; and, accordingly, action of city authorities in denying such use of the property was an unreasonable and arbitrary interpretation of the ordinance which tended to deprive the company of its property and use thereof in violation of both Federal and State Constitutions. Jones v. Hattiesburg, 207 Miss. 491, 42 So. 2d 717, 1949 Miss. LEXIS 357 (Miss. 1949).

70. – Taxation, due process.

The four criteria that a taxing statute must satisfy to withstand a challenge under the commerce clause and due process clause of the United States Constitution are: (1) the tax must be applied to an activity with a substantial nexus with the taxing state; (2) the tax must be fairly apportioned; (3) the tax must not discriminate against interstate commerce; and (4) the tax must be fairly related to services provided by the taxing state; the failure to meet any one prong of the test renders the tax invalid. Tennessee Gas Pipeline Co. v. Marx, 594 So. 2d 615, 1992 Miss. LEXIS 66 (Miss. 1992).

The imposition of use and excise taxes pursuant to §27-67-7 et seq. on a pipeline company’s use of natural gas taken from its interstate gas pipeline as fuel for its compressor engines located along the pipeline was permissible under the commerce clause and the due process clause of the United States Constitution since the activity taxed the consumption of natural gas in compressor stations located in Mississippi had a sufficient nexus with the State to justify the tax, the tax was fairly apportioned to assess only local activities and did not discriminate against interstate commerce by subjecting interstate taxpayers to a double taxation where similarly situated intrastate taxpayers would be subject to only single taxation, and the tax was fairly related to the benefits provided by the State to the pipeline company. Tennessee Gas Pipeline Co. v. Marx, 594 So. 2d 615, 1992 Miss. LEXIS 66 (Miss. 1992).

An amendatory provision in a sales tax statute (Code 1942 § 10122 as amended) reducing from six years to three years the time within which suit may be brought to recover the tax is not violative of the due process clause. Stone v. McKay Plumbing Co., 200 Miss. 792, 30 So. 2d 91, 1947 Miss. LEXIS 363 (Miss. 1947).

A retroactive provision in a sales tax statute changing the limitation on the right of the taxpayer to sue to recover taxes paid is invalid in so far as it undertakes to compel a court to set aside a prior judgment in taxpayer’s favor, since the judgment conferred a vested right which could not be taken away without due process of law. Stone v. McKay Plumbing Co., 200 Miss. 792, 30 So. 2d 91, 1947 Miss. LEXIS 363 (Miss. 1947).

71. – Governmental immunity, due process.

Parole board members receive absolute immunity in suit for damages by parolee alleging revocation procedures violated his right to due process, and official who, because of organization of government in particular state, performs parole board’s quasi-judicial duties enjoys same protection. Farrish v. Mississippi State Parole Bd., 836 F.2d 969, 1988 U.S. App. LEXIS 1512 (5th Cir. Miss. 1988).

Officers whose activities fell within scope of parole board’s protected function were absolutely immune from liability in suit for damages alleging denial of prisoner’s due process rights where one, acting as hearing officer, had conducted hearing without critical adverse witness even though defendant requested his presence; other officer had served in prosecutorial role during revocation proceeding. Farrish v. Mississippi State Parole Bd., 836 F.2d 969, 1988 U.S. App. LEXIS 1512 (5th Cir. Miss. 1988).

Commissioner of Corrections, whose conduct involved administrative activities which, although they impacted on adjudicatory process, were not integral part of it, merited only qualified immunity where allegation was that procedural due process violation had occurred; this official, who had failed to establish adequate policies or procedures to govern preliminary hearing in such an elementary case, should have known that his conduct violated a clearly established right and was therefore liable for damages. Farrish v. Mississippi State Parole Bd., 836 F.2d 969, 1988 U.S. App. LEXIS 1512 (5th Cir. Miss. 1988).

72. – Elections, due process.

Fact that decision of federal court declaring Mississippi poll tax law unconstitutional was handed down on day which was deadline for filing protest petitions against issuance of state aid road bonds, thereby increasing the number of electors in county from 8855 to 13510, and making total number of signatures on petitions insufficient to prevent board of supervisors from issuing bonds without calling election therefor, did not deprive petitioners of their constitutional rights; for the decision of the federal court was a fact beyond the power of the board to alter, but of which they were bound to take cognizance. Ratliff v. Board of Supervisors, 193 So. 2d 137, 1966 Miss. LEXIS 1280 (Miss. 1966).

73. – Parole and probation generally, due process.

In a challenge to the banishment provision of defendant’s sentence pursuant to Miss. Code Ann. §99-39-5(1)(a), the substitution of some period of formal probationary supervision in place of a like term of banishment did not constitute an increase in the degree or character of defendant’s punishment that would invoke constitutional concerns of double jeopardy, U.S. Const. amend. V, and the requirement of supervised probation was essentially rehabilitative in its objectives and not punitive; thus, the change in probation terms was within the circuit court’s authority as contained in Miss. Code Ann. §47-7-35. Weaver v. State, 856 So. 2d 407, 2003 Miss. App. LEXIS 234 (Miss. Ct. App.), cert. denied, 859 So. 2d 1017, 2003 Miss. LEXIS 515 (Miss. 2003).

The banishment of the defendant from a 100 mile radius of the place that he committed a burglary was not justified where the trial court did not make an on the record finding of the benefits of banishment. Weaver v. State, 764 So. 2d 479, 2000 Miss. App. LEXIS 351 (Miss. Ct. App. 2000).

A prisoner is not denied due process by the denial of parole because the discretion conferred on the parole board affords a prisoner no constitutionally recognized liberty interest. Justus v. Mississippi State Parole Bd., 750 So. 2d 1277, 1999 Miss. App. LEXIS 586 (Miss. Ct. App. 1999).

Parole statutes contain no mandatory language, but instead employ permissive “may” rather than “shall,” and thus prisoners have no constitutionally recognized liberty interest in parole. Vice v. State, 679 So. 2d 205, 1996 Miss. LEXIS 419 (Miss. 1996).

Neither the due process clause nor Mississippi law gives rise to a protected liberty interest in the form of an expectation of release on probation. There is no liberty interest in release pursuant to the provisions of §47-7-47, which creates a procedure whereby the courts may place a prisoner on probation, since the language of the statute is permissive rather than mandatory in nature; the statute vests absolute discretion in both the Department of Corrections and the court in determining whether probation should be recommended and granted, and this discretion affords a prisoner no constitutionally recognized liberty interest. Smith v. State, 580 So. 2d 1221, 1991 Miss. LEXIS 326 (Miss. 1991).

The Mississippi parole statutes do not create a constitutionally protected liberty interest in the form of an expectation of parole because of the use of the permissive “may” in §47-7-3, which provides that a prisoner “may be released on parole as hereinafter provided,” read in the context of the other provisions of that section and, as well, those of §47-7-17. Thus, Mississippi law did not vest a convicted and incarcerated felon with a liberty interest in parole entitling him to due process of law incident to his application for parole. Harden v. State, 547 So. 2d 1150, 1989 Miss. LEXIS 370 (Miss. 1989).

A term of probation requiring defendant to remain at least 125 miles away from a particular county did not violate his First, Fifth, or Fourteenth Amendment rights, where the record indicated that the trial judge carefully and meticulously explained to defendant his rights, the trial court found that defendant voluntarily and knowingly pled guilty, the Department of Corrections conducted an investigation of defendant prior to sentencing, and defendant accepted the terms of probation, which were neither unreasonable nor arbitrary. Cobb v. State, 437 So. 2d 1218, 1983 Miss. LEXIS 2926 (Miss. 1983).

74. –Revocation of parole and probation, due process.

A defendant who allegedly violated the terms of his probation by committing the crime of sale of cocaine was denied due process of law by having his probation revoked immediately after a mistrial was declared in his trial on the charge of sale of cocaine where the revocation was based upon the trial which had just resulted in a mistrial, the defendant never agreed that the court could summarily revoke his probation in the event the trial resulted in anything other than a conviction, and he was not given advance notice of a revocation hearing. Grayson v. State, 648 So. 2d 1129, 1994 Miss. LEXIS 630 (Miss. 1994).

When failure to pay court-imposed fines becomes a possible basis for a probation revocation, the trial court must follow the procedural mandates of §99-19-20(2). Berdin v. State, 648 So. 2d 73, 1994 Miss. LEXIS 637 (Miss. 1994), overruled, Smith v. State, 742 So. 2d 1146, 1999 Miss. LEXIS 260 (Miss. 1999).

A defendant was deprived of due process by a trial court’s failure to conduct an inquiry as to the reason she was delinquent in paying her probation fines before revoking her probation because of her failure to pay those fines. Berdin v. State, 648 So. 2d 73, 1994 Miss. LEXIS 637 (Miss. 1994), overruled, Smith v. State, 742 So. 2d 1146, 1999 Miss. LEXIS 260 (Miss. 1999).

A defendant’s probation revocation violated her due process rights where there was no record of the defendant receiving notice of a probation violation, and the disparity between the court’s statements when probation was revoked, the written and signed order of revocation, and the court’s after-the-fact explanation at the defendant’s post-conviction relief hearing demonstrated a lack of actual notice. Berdin v. State, 648 So. 2d 73, 1994 Miss. LEXIS 637 (Miss. 1994), overruled, Smith v. State, 742 So. 2d 1146, 1999 Miss. LEXIS 260 (Miss. 1999).

A trial court properly denied a parolee’s petition for writ of habeas corpus, in which the parolee claimed that he was not afforded a timely parole revocation hearing, where the admitted evidence showed that the parolee had violated the conditions of his parole by 2 Tennessee felony convictions and failure to waive extradition back to Mississippi; these were reasonable grounds for revoking his parole, and therefore all procedural due process guarantees were met. Godsey v. Houston, 584 So. 2d 389, 1991 Miss. LEXIS 438 (Miss. 1991).

A probationer was not denied due process due to the lack of a preliminary hearing in his probation revocation proceedings, even though a hearing expressly designated as “preliminary” was not held, where 3 hearings were held in the circuit courts and the first and second hearings were, for all practical purposes, equivalent to a preliminary hearing. Additionally, the probationer was not wrongfully denied the opportunity to call his own witnesses where he made a last-minute request during the third hearing to call witnesses who allegedly would have testified in his behalf, the court concluded that the witnesses would have offered no new evidence, the probationer had already admitted that he committed probation violations, and at most the witnesses would have testified in regard to the probationer’s character and would have had no effect on the outcome of the case. Riely v. State, 562 So. 2d 1206, 1990 Miss. LEXIS 240 (Miss. 1990).

The probation-revocation procedure delineated in §47-7-37 is constitutional; the statute includes the minimum due process requirements applicable to parole and probation revocation procedures set forth in Morrissey v Brewer (1972, US) 33 L Ed 2d 27, 92 S Ct 2593 and Gagnon v Scarpelli (1973, US) 36 L Ed 2d 656, 93 S Ct 1756. Riely v. State, 562 So. 2d 1206, 1990 Miss. LEXIS 240 (Miss. 1990).

75. –Treatment of incarcerated persons, due process.

In a capital murder case, the inmate asserted that he had been subjected to cruel and inhuman treatment in violation of his Fifth, Eighth, and Fourteenth Amendment rights because he had been kept in maximum confinement on Mississippi’s death row under conditions that included lock-down and isolation for at least 23 hours of the day and because he had been subjected to numerous execution dates during those 19-20 years; however, there was no law in the United States or Mississippi that supported the inmate’s claim and, thus, there were no grounds for postconviction relief on that issue. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

Involuntary treatment of the criminally accused with antipsychotic medication is permissible only where medically appropriate and, considering less intrusive alternatives, essential for safeguarding a compelling state interest. In re the Reinstatement of Turner, 635 So. 2d 894, 1994 Miss. LEXIS 197 (Miss. 1994).

Although prisoners do not enjoy an absolute constitutional right to unrestricted visitation, and their visitation privileges are subject to the discretion of prison officials, restrictions on an inmate’s visitation privileges should not be imposed arbitrarily or discriminatorily. Puckett v. Stuckey, 633 So. 2d 978, 1993 Miss. LEXIS 566 (Miss. 1993).

The unexplained failure to award an inmate meritorious earned time did not amount to a violation of his federal and state constitutional rights to due process and equal protection, since an inmate’s earning of “time” is a matter of grace or privilege under §47-5-142, which provides that “meritorious earned time may be awarded.” Since correctional officials are vested with discretionary power to award time under certain conditions, inmates are not entitled to it. Ross v. State, 584 So. 2d 777, 1991 Miss. LEXIS 483 (Miss. 1991).

A prisoner did not have a protected liberty interest in being transferred from a county correctional facility to a state prison, absent a state law or regulation or prison policy or procedure conditioning such a transfer on proof of misbehavior or some other event. McFadden v. State, 580 So. 2d 1210, 1991 Miss. LEXIS 306 (Miss. 1991).

A prison inmate does not have a protected liberty interest in a particular job assignment under the due process clause. However, a liberty interest may be created by state law or prison regulation. McFadden v. State, 580 So. 2d 1210, 1991 Miss. LEXIS 306 (Miss. 1991).

Inmates who are placed in administrative segregation have no constitutional basis for demanding the same privileges as those inmates in the general prison population since prison officials have the discretion to determine whether and when to provide prisoners with privileges such as showers, exercise, visitation, and access to personal property. Thus, the 5 hours a week of exercise plus nightly showers of 15 minutes which were provided to an inmate confined to administrative segregation did not constitute cruel and unusual punishment. Additionally, the procedures provided when the inmate was placed in administrative segregation satisfied the due process clause where the inmate received notice of detention and a hearing on the matter. Terrell v. State, 573 So. 2d 730, 1990 Miss. LEXIS 784 (Miss. 1990).

The actions of corrections officials in designating a prisoner eligible for earned time, due to an administrative or clerical error, and then in withdrawing that designation, did not amount to a forfeiture of earned time without due process since no earned time was accumulated by the prisoner. Doctor v. State, 522 So. 2d 229, 1988 Miss. LEXIS 81 (Miss. 1988).

76. –Jurisdiction, due process.

For court’s exercise of personal jurisdiction to comport with due process, defendant must have certain minimum contacts with forum, such that maintenance of suit does not offend traditional notions of fair play and substantial justice. Cappaert v. Walker, Bordelon, Hamlin, Theriot & Hardy, 680 So. 2d 831, 1996 Miss. LEXIS 497 (Miss. 1996).

Although the chancellor initially granted the mother’s motion to terminate the father’s parental rights, the Hinds County Chancery Court did not have proper subject matter jurisdiction to do so because the Scott County Chancery Court entered the initial order of child custody; when presented with information regarding the jurisdictional problem, the chancellor immediately corrected the defect by setting aside his previous orders and instructing that any further proceedings regarding the case be brought before the Scott County Chancery Court, pursuant to Miss. Code Ann. §93-5-23. C.M. v. R.D.H., 947 So. 2d 1023, 2007 Miss. App. LEXIS 29 (Miss. Ct. App. 2007).

For court’s exercise of personal jurisdiction to comport with due process, defendant’s contacts with forum must be such that he should reasonably anticipate being haled into court there. Cappaert v. Walker, Bordelon, Hamlin, Theriot & Hardy, 680 So. 2d 831, 1996 Miss. LEXIS 497 (Miss. 1996).

Joint venturer’s contacts with Louisiana, as state where radio station was purchased pursuant to joint venture agreement and where funds which joint venturer advanced were used in operating station, were sufficient to permit Louisiana courts to exercise personal jurisdiction in action brought by law firm which provided legal services to another member of venture to hold joint venturer liable on debt; lawsuit arose out of joint venturer’s contacts with forum, and even assuming that it did not, joint venturer’s contacts were systematic and continuous enough, extending over multiyear period when station was in operation, to satisfy due process. Cappaert v. Walker, Bordelon, Hamlin, Theriot & Hardy, 680 So. 2d 831, 1996 Miss. LEXIS 497 (Miss. 1996).

77. –Service of process, due process.

Former husband representing himself, was unable to show a violation of the Fifth Amendment or Miss. Code Ann. §9-5-137 in a divorce action because the evidence demonstrated that he was not charged with a criminal offense and that a summons was properly issued on the civil complaint. Appellant husband erroneously believed a summons should not have been issued as the charge was not criminal but lay in divorce. Richardson v. Richardson, 856 So. 2d 426, 2003 Miss. App. LEXIS 259 (Miss. Ct. App. 2003), cert. denied, 2003 Miss. LEXIS 638 (Miss. Nov. 6, 2003).

Complete absence of service of process offends due process and cannot be waived. Mansour v. Charmax Indus., 680 So. 2d 852, 1996 Miss. LEXIS 498 (Miss. 1996).

Due process of law requires personal service to support a personal judgment, and, when the proceeding is strictly in personam brought out to determine the personal rights and obligations of the parties, personal service within the state or a voluntary appearance in the case is essential to acquisition of jurisdiction so as to constitute compliance with the constitutional requirement of due process. American Cas. Co. v. Kincade, 219 Miss. 653, 69 So. 2d 820, 1954 Miss. LEXIS 374 (Miss. 1954).

78. – Notice and hearing, due process.

Public Service Commission deprived ratepayers of procedural due process by failing to require notice to the ratepayers; no notice of the original filing was provided to the ratepayers. Miss. Power Co. v. Miss. PSC, 168 So.3d 905, 2015 Miss. LEXIS 315 (Miss. 2015).

Defendant’s due process rights were not violated by a contempt conviction because a trial court gave defendant notice and conducted a hearing where she was allowed to present evidence, even though not required for direct contempt. In re Hampton, 919 So. 2d 949, 2006 Miss. LEXIS 18 (Miss.), cert. denied, 547 U.S. 1131, 126 S. Ct. 2042, 164 L. Ed. 2d 784, 2006 U.S. LEXIS 3868 (U.S. 2006).

Denial of the inmate’s petition for writ of habeas corpus was affirmed as (1) Miss. Code Ann. §47-7-17 did not create a constitutionally protected liberty interest in parole, (2) the inmate waived his right to argue that he was prejudiced by the Parole Board’s failure to publish notice of his parole hearing as it was not raised below, and (3) the inmate did not argue in his petition that he had ever been denied the opportunity to call witnesses or that the Parole Board refused to listen to their testimony. Way v. Miller, 919 So. 2d 1036, 2005 Miss. App. LEXIS 471 (Miss. Ct. App. 2005).

The defendant was not denied the right to have compulsory process for obtaining witnesses in his favor, notwithstanding his contention that the state, by trying him at a time when charges were still pending against his other co-defendants, ensured that these potentially helpful defendants would be unavailable to the defense because, as a matter of self-preservation, they could be expected to invoke their Fifth Amendment right against self-incrimination and refuse to testify. Bell v. State, 733 So. 2d 372, 1999 Miss. App. LEXIS 56 (Miss. Ct. App. 1999).

There was no violation of due process caused by the time that elapsed between the alleged events that formed the basis for the criminal charge against the defendant for gratification of lust by touching or rubbing a child under the age of fourteen years and the time he was brought to trial where (1) the only claim of prejudice advanced at the hearing to dismiss was that the defendant could not locate his former wife, whom he believed would testify favorably to him, and (2) there was no evidence indicating that the state purposely delayed bringing formal charges against the defendant and, to the contrary, the evidence indicated that, once responsible officials became aware of the alleged events related by the child, the matter was pursued with all reasonable diligence. Haire v. State, 749 So. 2d 1130, 1999 Miss. App. LEXIS 493 (Miss. Ct. App. 1999).

The appellant was afforded a full, complete hearing at which he was given the opportunity to call witnesses and to be heard by the lower court during the divorce proceedings on the issues relating to the equitable division of marital assets that he later presented on appeal; accordingly, he was not denied due process of law, as required by both the U.S. Constitution and the Mississippi Constitution on those issues, for he was given an opportunity to be heard on the same issues he sought to modify a few months after the final decree was entered. Childers v. Childers, 717 So. 2d 1279, 1998 Miss. LEXIS 337 (Miss. 1998).

Due process requirements of clause in natural gas utility’s Army Corps of Engineers permit to lay natural gas pipelines across river, requiring notice and hearing before government could require utility to remove or alter its pipeline, did not apply to permit exculpation clause stating that government would not be liable for damage or injury to structure authorized and, thus, exculpation clause was enforceable without need for notice and hearing, in utility’s action against government, alleging negligence by Corps in designing and constructing dikes and revetment in projects to minimize scouring of river bank, causing utility’s pipelines to burst; clauses were independent of each other and both could be given meaning without reference to each other. Columbia Gulf Transmission Co. v. United States, 966 F. Supp. 1453, 1997 U.S. Dist. LEXIS 8814 (S.D. Miss. 1997).

A contemnor was denied due process of law where the show cause hearing for the contempt charges was conducted by the same judge who presided over the divorce proceedings and the related motion for recusal from which the alleged contempt originated, the contemnor was charged with a course of conduct that was committed, for the most part, outside the presence of the court, his conduct associated with the divorce proceedings involved the judge personally, and the judge chose to set a show cause hearing at a date subsequent to the alleged contemptuous conduct. Purvis v. Purvis, 657 So. 2d 794 (Miss. 1994), on rehearing (Miss. Apr. 27, 1995).

A county board of supervisors could not bar a chancery clerk, who had temporarily vacated his positions as clerk of the board of supervisors and county auditor, from performing his duties in those positions based upon a claim that the chancery clerk had failed to perform his duties, without affording him a hearing so as to comply with due process requirements. Barlow v. Weathersby, 597 So. 2d 1288, 1992 Miss. LEXIS 196 (Miss. 1992).

A chancellor’s refusal to grant a motion to set aside judgment pursuant to MRCP 60(b)(6) was an abuse of discretion where the record was devoid of any notice to the defendant as to the date of the trial; notice, whether of the time and place of a hearing, the contents of a complaint, or of the specific nature of a criminal charge, is the essence of due process. Johnson v. Weston Lumber & Bldg. Supply Co., 566 So. 2d 466, 1990 Miss. LEXIS 441 (Miss. 1990), but see Koerner v. Crittenden, 635 So. 2d 833, 1994 Miss. LEXIS 184 (Miss. 1994).

A circuit judge erred in deciding not to subject a creditor to liability for injurious violation of a debtor’s constitutional right to due process when the creditor seized the debtor’s mobile home and furnishings in compliance with §11-37-101 simply because the creditor acted pursuant to a presumptively valid (albeit unconstitutional) statute. An evidentiary hearing should have been held, and the creditor’s claim of good faith reliance on a presumptively valid statute should have been considered in light of not only the sincerity in its belief that it was acting properly, but the reasonableness of its actions under the circumstances. A fact finder conceivably could have concluded that the creditor’s “surprise” seizure of the debtor’s mobile home and its contents was, under the circumstances, unreasonable and compensable, where the record indicated no explanation for the necessity of an immediate seizure. Underwood v. Foremost Financial Services Corp., 563 So. 2d 1387, 1990 Miss. LEXIS 286 (Miss. 1990).

In an action against a husband for contempt for failing to abide by the terms of a divorce decree, the husband was deprived of due process where, after the husband was held in contempt, the chancellor did not allow him to present evidence in support of his motion for a new trial in order to prove that he had abided by the terms of the divorce decree, and the chancellor then dispensed with the husband’s motion for a new trial by denying it without hearing the additional evidence. Weeks v. Weeks, 556 So. 2d 348, 1990 Miss. LEXIS 12 (Miss. 1990).

Accused was not denied due process by the trial court’s refusal to grant a preliminary evidentiary hearing on his motion to suppress identification where there was no showing of illegality in either the photographic identification of the defendant or in the several lineup identifications. Howard v. State, 319 So. 2d 219, 1975 Miss. LEXIS 1471 (Miss. 1975), cert. denied, 425 U.S. 954, 96 S. Ct. 1733, 48 L. Ed. 2d 199, 1976 U.S. LEXIS 1500 (U.S. 1976).

79. –Discovery, due process.

Defense counsel was given every opportunity to listen to the tapes and view the transcripts, as all evidence was made available to defense counsel, and no evidence was intentionally withheld by the State; additionally, when applying the four-part test to determine if Brady violations occurred in the inmate’s case with respect to two witnesses, the trial court finding on that issue was supported by the record. Therefore, all exculpatory issues raised by the inmate regarding those two witnesses were without merit, and there was no violation of defendant’s due process rights. Manning v. State, 929 So. 2d 885, 2006 Miss. LEXIS 109 (Miss. 2006).

In his petition for post-conviction relief, the inmate demonstrated (1) that the shoe-print report, indicating the likely size of the shoe, which did not match the inmate’s shoe size, existed and was known to the prosecution at the time of the trial; (2) that despite seeking discovery of all exculpatory evidence, the report was not disclosed to the defense; and (3) that there was a reasonable probability that the outcome of the murder trial would have been different had evidence that a shoe-print not matching the inmate’s shoe size was found at the scene of the crime been presented; therefore, the inmate should be allowed to proceed in the trial court on the issue that his constitutional rights were violated by the State’s suppression of exculpatory information concerning the shoe print. Additionally, the inmate was allowed to seek post-conviction relief on the question of whether the State had knowingly suppressed additional exculpatory evidence, including (1) notes taken on the door-to-door canvas conducted following the murders; (2) statements of other neighbors implicating another suspect; and (3) other impeachment evidence. Manning v. State, 884 So. 2d 717, 2004 Miss. LEXIS 469 (Miss. 2004).

In a contract dispute over the installation of a swimming pool, a trial court violated a contractor’s procedural due process rights in basing its judgment on testimony that was neither taken under oath nor subject to cross-examination where the contractor consulted with a concrete finisher, and relied on the finisher’s unsworn opinion. Pulliam v. Chandler, 872 So. 2d 752, 2004 Miss. App. LEXIS 419 (Miss. Ct. App. 2004).

The defendant’s Fifth Amendment due process and fair trial rights were not infringed by a number of discovery violations which concerned five witnesses who either testified at his 1994 trial or were prohibited from testifying by the trial court. Beckwith v. Anderson, 89 F. Supp. 2d 788, 2000 U.S. Dist. LEXIS 7033 (S.D. Miss. 2000).

The failure of the state to provide the last known address and telephone number of a witness was not a violation of defendant’s due process right or right to a fair trial; failure to provide the location of the witness to the defense did not undermine the confidence in the outcome of trial and, therefore, the defendant was not entitled to a mistrial on this basis. Beckwith v. Anderson, 89 F. Supp. 2d 788, 2000 U.S. Dist. LEXIS 2238 (S.D. Miss. 2000).

Government did not violate Brady in drug conspiracy case when it failed to produce defendant’s financial records and car titles, which the government seized while executing a search warrant, absent showing that such records were not available to defendant through his own diligence. United States v. Dixon, 132 F.3d 192, 1997 U.S. App. LEXIS 36328 (5th Cir. Miss. 1997), cert. denied, 522 U.S. 1061, 118 S. Ct. 721, 139 L. Ed. 2d 661, 1998 U.S. LEXIS 260 (U.S. 1998), cert. denied, 523 U.S. 1096, 118 S. Ct. 1581, 140 L. Ed. 2d 796, 1998 U.S. LEXIS 2864 (U.S. 1998).

A litigant is not shut off from all remedies for discovery merely because the rules of civil procedure do not apply to administrative proceedings or because the rules of the administrative agency do not promote it. In appropriate cases, a “pure bill for discovery” will lie and statutory remedies may be available to the end that due process be afforded. State Oil & Gas Bd. v. McGowan, 542 So. 2d 244, 1989 Miss. LEXIS 184 (Miss. 1989).

There is no discovery violation as to an officer’s notes, taken in the presence of witnesses and destroyed in good faith. Thus, the destruction of original handwritten notes of a defendant’s statement, which were transcribed into a typed statement, and admission of the typed statement into evidence, did not deprive the defendant of his rights to a fair and impartial trial and adequate defense as provided by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Woodward v. State, 533 So. 2d 418, 1988 Miss. LEXIS 492 (Miss. 1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1767, 104 L. Ed. 2d 202, 1989 U.S. LEXIS 2004 (U.S. 1989).

80. –Compulsory process, due process.

There can be no per se prohibition against a child witness testifying in a divorce case between the child’s parents. The right of every litigant to compulsory process for witnesses and to have them testify under oath in court is so well grounded that any per se exclusion simply because he or she is a child of the divorcing parents risks offending the due process provisions of the Fifth and Fourteenth Amendments of the United States Constitution and Mississippi Constitution Art 3, § 14. Before excluding the testimony of a child witness of tender years in a divorce proceeding, the chancellor, at a minimum, should follow the procedure required by Crownover v Crownover (1975) 33 Ill App 3d 327, 337 NE2d 56. Although no parent can be precluded from having a child of the marriage testify in a divorce proceeding simply because of that fact, parents in a divorce proceeding should, if at all possible, refrain from calling children of their marriage as witnesses, and counsel should advise their clients against doing so except in the most exigent cases. Jethrow v. Jethrow, 571 So. 2d 270, 1990 Miss. LEXIS 700 (Miss. 1990).

81. – Rights of indigent defendant, due process.

DNA testing of the knife used in an assault would have been of little assistance to defendant and therefore was not necessary to preserve defendant’s due process guarantees as both the victim and the eyewitness testified that defendant attacked the victim, and if the blood on the knife was found to be defendant’s blood, it would have added little support to his theory of self-defense; thus, defendant was not denied a fair trial nor was his request for expert assistance necessary to preserve his due process guarantees. Grubbs v. State, 956 So. 2d 932, 2006 Miss. App. LEXIS 379 (Miss. Ct. App. 2006), cert. denied, 957 So. 2d 1004, 2007 Miss. LEXIS 313 (Miss. 2007).

In a prosecution for capital murder committed during the commission of a rape, the trial court’s failure to provide funds to the defendant to retain an independent pathologist constituted reversible error where the opinion of the State’s pathologist that the victim was raped was the only evidence offered to prove this critical aspect of the State’s case. In re the Reinstatement of Turner, 635 So. 2d 894, 1994 Miss. LEXIS 197 (Miss. 1994).

While the due process clause requires that an indigent defendant should at times be allowed an expert in the interest of fundamental fairness, a court is not required to appoint an expert upon demand. Some of the factors to be considered in determining if the defendant was denied a fair trial when the court did not appoint a requested expert include the degree of access the defendant had to the State’s experts and whether those experts were available for vigorous cross-examination. Another consideration is the lack of prejudice or incompetence on the part of the State’s experts. Fisher v. Eupora, 587 So. 2d 878, 1991 Miss. LEXIS 669 (Miss. 1991).

Neither due process nor equal protection rights are violated by requiring a prisoner to demonstrate some specific need before requiring the State or county to furnish the prisoner with free copies of trial records in post-conviction relief proceedings. The State is not required to subsidize a “fishing expedition” for grounds upon which to attack a conviction and sentence, merely because the prisoner is indigent. Fleming v. State, 553 So. 2d 505, 1989 Miss. LEXIS 476 (Miss. 1989), but see De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

In absence of anything in the record that suggests that a defendant charged with uttering a forgery was prejudiced to the point of warranting a new trial by the failure to furnish him with a handwriting expert, the trial court did not err in refusing defendant’s request for the expert. Burt v. State, 493 So. 2d 1325, 1986 Miss. LEXIS 2490 (Miss. 1986).

82. – Right to counsel, due process.

The prosecution’s cross-examination and closing argument references to the defendant’s exercise of his constitutional right to counsel did not rise to such a level as to constitute plain error; therefore, the defendant was procedurally barred from raising the issue on appeal. Riddley v. State, 1999 Miss. App. LEXIS 541 (Miss. Ct. App. Aug. 24, 1999), aff'd, 777 So. 2d 31, 2000 Miss. LEXIS 167 (Miss. 2000).

Effective right of counsel encompasses the right to representation by attorney who does not owe conflicting duties to other defendants, and undivided loyalty of defense counsel is essential to the due process guarantee of the Fifth Amendment. Perry v. State, 682 So. 2d 1027, 1996 Miss. LEXIS 572 (Miss. 1996).

There was no actual conflict arising from fact that defense counsel had previously represented government rebuttal witness in unrelated prosecutions, where subject of cross-examination was witness’ prior deals with state to provide testimony in exchange for plea agreements. Perry v. State, 682 So. 2d 1027, 1996 Miss. LEXIS 572 (Miss. 1996).

Prejudice is presumed only if defendant demonstrates that counsel actively represented conflicting interests and that actual conflict of interest adversely affected his lawyer’s performance. Perry v. State, 682 So. 2d 1027, 1996 Miss. LEXIS 572 (Miss. 1996).

Defense counsel’s representation was not adversely affected by fact that he had previously represented government rebuttal witness in unrelated prosecutions, where counsel was not “suddenly curtailed” in his cross-examination when subject of prior deals with prosecutors arose but, rather, proceeded onward to question witness in detail about his motivation for prior testimony in another case as well as his motivation for testifying against defendant in the present case. Perry v. State, 682 So. 2d 1027, 1996 Miss. LEXIS 572 (Miss. 1996).

Where no actual conflict of interest is present, defendant must demonstrate prejudice and show reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Perry v. State, 682 So. 2d 1027, 1996 Miss. LEXIS 572 (Miss. 1996).

Defendant was not prejudiced by any adverse performance of defense counsel due to fact that he had previously represented government rebuttal witness in unrelated prosecutions; even assuming that counsel conclusively established that witness’s sole motivation in testifying was to receive a reduced sentence pursuant to agreement with the State, there remained the vast amount of evidence presented during state’s case in chief. Perry v. State, 682 So. 2d 1027, 1996 Miss. LEXIS 572 (Miss. 1996).

Undivided loyalty of defense counsel is essential to due process. Perry v. State, 682 So. 2d 1027, 1996 Miss. LEXIS 572 (Miss. 1996).

In proceedings to determine custody of 2 children who had been adjudicated neglected and placed in foster care, the children were denied their due process right of representation where they were without the services of an attorney or guardian ad litem for approximately 3 years during the course of the custody proceedings. Copiah County Dep't of Human Servs. v. Linda D. (In the Interest of R.D.), 658 So. 2d 1378, 1995 Miss. LEXIS 368 (Miss. 1995), overruled in part, D.T. v. Hinds Cnty. Youth Court (In re J.T.), 188 So.3d 1192, 2016 Miss. LEXIS 165 (Miss. 2016).

In a prosecution for conspiracy to distribute cocaine, a defendant’s constitutional right to the effective assistance of counsel was violated due to an irreparable conflict of interest where the attorney who represented the defendant had also been counsel for the State’s main witness in the trial against the witness for the same offense. Littlejohn v. State, 593 So. 2d 20, 1992 Miss. LEXIS 8 (Miss. 1992).

83. –Judicial impartiality, due process.

Federal district court correctly denied state death row inmate’s habeas corpus petition; comments by a deputy sheriff called as a venireman, stating that he could not be fair because he had seen crime scene photos in the course of his job, did not taint the resentencing jury or deprive petitioner of due process because the deputy was excused as a juror and because there was no indication that the rest of the venire heard his comments. Holland v. Anderson, 439 F. Supp. 2d 644, 2006 U.S. Dist. LEXIS 46788 (S.D. Miss. 2006).

Defendant’s right to a fair trial was not violated when a trial judge rephrased a question posed by the prosecution for purposes of clarity because the act did not show bias or a deliberate attempt to influence the jury; therefore, there was no reason to grant a motion for a new trial. Quinn v. State, 873 So. 2d 1033, 2003 Miss. App. LEXIS 1006 (Miss. Ct. App. 2003), cert. denied, 873 So. 2d 1032, 2004 Miss. LEXIS 597 (Miss. 2004).

A judge who had served as the prosecutor at the time of the defendant’s indictment should have disqualified himself; the very functions involved in the performance of the positions of judge and prosecutor are contradictory and no person can be considered to be impartial while that person is also acting as a partisan. Since the judge failed to disqualify himself, the defendant was deprived of due process, which includes a fair and impartial trial. Jenkins v. State, 570 So. 2d 1191, 1990 Miss. LEXIS 701 (Miss. 1990).

84. –Jury selection, due process.

Inmate’s trial attorneys were not ineffective because (1) although some of the State’s race-neutral reasons for striking jurors were a close call, the trial court allowed the challenges to stand, and the inmate did not show that a different outcome would have resulted had the Batson objections been sustained; (2) his counsel filed numerous pre-trial motions, cross-examined nine out of eleven prosecution witnesses, ultimately did not call a defense witness because he would have corroborated the State’s witnesses, met with the inmate on numerous occasions and even discussed a plea offer from the State that the inmate rejected; (3) the inmate’s accusation that trial counsel had failed to properly investigate was merely an unfounded allegation because the inmate supplied little or nothing of what an effective attorney performing a proper investigation would or should have found by way of mitigating testimony; and (4) trial counsel did not err in failing to raise the issue of the inmate’s competency because the inmate presented no evidence that he was currently incompetent or incompetent at the time of his trial. Knox v. State, 901 So. 2d 1257, 2005 Miss. LEXIS 190 (Miss.), cert. denied, 546 U.S. 1063, 126 S. Ct. 797, 163 L. Ed. 2d 630, 2005 U.S. LEXIS 9080 (U.S. 2005).

Where a defendant is to be identified at trial, and the defendant requests that he or she be seated among other people in the courtroom, the trial judge should exercise broad discretion in determining whether the request should be granted; the factors to be considered by the trial judge include (1) any danger presented to the public by the defendant, (2) the danger of misidentification, (3) the courtroom facilities available, and (4) any other pertinent factors known to the trial judge. Scott v. State, 602 So. 2d 830, 1992 Miss. LEXIS 347 (Miss. 1992).

A trial judge did not abuse his discretion in denying a defendant’s request to be seated among the general public when an in-court identification of the defendant was made where the trial judge thoroughly conducted voir dire examination of the witness before allowing his identification, and the defendant had previously been convicted for escape from an Arkansas prison. Scott v. State, 602 So. 2d 830, 1992 Miss. LEXIS 347 (Miss. 1992).

It is a matter of fundamental fairness and due process that the defendant is entitled to be apprised of communications between the court and the jury during deliberations. The defendant is also entitled to be represented by counsel during this very important procedure. Edlin v. State, 523 So. 2d 42, 1988 Miss. LEXIS 108 (Miss. 1988).

Defendant was barred from asserting claim of state’s abuse of its peremptory challenges to exclude all blacks from defendant’s jury, which allegedly deprived him of his right to representative jury and to due process of law, where record failed to reflect that defendant had made contemporaneous objection to prosecuting attorney’s use of peremptory challenges. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Jury selection was properly conducted and jurors were not excluded on basis of race where black jurors were excluded for following race-neutral reasons: (1) 22-year-old laborer with eleventh-grade education was stricken because his youth, marital status, and educational level appeared to prosecutor to indicate instability; (2) 49-year-old minister/bus driver was stricken because he was preacher; (3) 35-year-old housewife was removed because she did not reveal her brother’s conviction for armed robbery; (4) 38-year-old cafeteria hostess was challenged because of her concerns about sequestration due to having to care for invalid mother; and (5) 25-year-old was stricken from panel because he wore hat into courtroom and his general demeanor suggested to prosecutor that he was unstable, unconcerned, and had no respect for proceedings. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Under Batson v Kentucky (1986) 476 US 79, 90 L Ed 2d 69, 106 S Ct 1712, defendant raising claim must show (1) he is member of “cognizable racial group;” (2) prosecutor has exercised peremptory challenges toward elimination of veniremen of his race; and (3) facts and circumstances infer that prosecutor used his peremptory challenges for purpose of striking minorities. These components constitute prima facie showing of discrimination necessary to compel state to come forward with neutral explanation for challenging black jurors. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Prosecutors are not limited in use of any legitimate informational source available as to jurors, nor does prosecutor have to question juror in open court about such information before using it as racially neutral ground to make peremptory strike, as long as source of information and practice itself are not racially discriminatory. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Claim that court erred in permitting state to systematically exclude black veniremen by peremptory challenge, where no objection was raised either during trial or on motion for new trial, was waived and counsel’s excuse for waiving claim at trial, that under prior law he felt he would be unsuccessful on point, was insufficient. Jones v. State, 517 So. 2d 1295, 1987 Miss. LEXIS 2296 (Miss. 1987), vacated, 487 U.S. 1230, 108 S. Ct. 2891, 101 L. Ed. 2d 925, 1988 U.S. LEXIS 3048 (U.S. 1988), overruled, Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

Failure of defense counsel to timely object to state’s peremptory challenges bars later attempts to advance that claim on appeal; objection is timely only where made prior to impaneling of jury. Thomas v. State, 517 So. 2d 1285, 1987 Miss. LEXIS 2386, 1987 Miss. LEXIS 2985 (Miss. 1987).

A conviction in a murder prosecution would be reversed where the trial court permitted the jury to be led to believe that a coconspirator who testified against defendant would be prosecuted, even though the court and the prosecution knew that he had been granted immunity. King v. State, 363 So. 2d 269, 1978 Miss. LEXIS 2186 (Miss. 1978).

The defendant was denied the right to a full and complete cross-examination when the witness, whether rightfully or not, successfully invoked the privilege against self-incrimination, and the defendant’s motion for the court to instruct the jury to disregard the witness’ testimony should have been sustained, and failure of the court to do so was error. Frackman v. Deposit Guaranty Nat'l Bank, 296 So. 2d 695, 1974 Miss. LEXIS 1532 (Miss. 1974).

Where evidence disclosed that jury after twenty-three hours of deliberation stood 11 to 1 for verdict of guilty of murder when bailiff stated to jury that judge told him he had until next convening of court to wait until they reached verdict and that as far as he was concerned they could stay there until they rotted and that shortly thereafter the jury returned a verdict of guilty, such conduct constituted a coercive inference on the jury prejudicial to defendant, regardless of whether the judge actually made such statements. McCoy v. State, 207 Miss. 272, 42 So. 2d 195, 1949 Miss. LEXIS 336 (Miss. 1949).

85. Trial conduct, due process.

Indictment for robbery was appropriate because defendant’s due process rights were not violated as the indictment was not required to have specified the items alleged to have been taken in the robbery. Batiste v. State, 121 So.3d 808, 2013 Miss. LEXIS 295 (Miss. 2013), cert. denied, 572 U.S. 1117, 134 S. Ct. 2287, 189 L. Ed. 2d 178, 2014 U.S. LEXIS 3424 (U.S. 2014).

Appellant was not denied due process where a trial court had sentenced him as a habitual offender without submitting the issue of his status as a habitual offender to the jury, because it was clear from federal case law that a jury was not required to pass upon an enhanced penalty due to prior convictions and the appellant’s sentence was within the limits of Miss. Code Ann. §99-19-83, as construed by Mississippi law. McNickles v. State, 979 So. 2d 693, 2007 Miss. App. LEXIS 354 (Miss. Ct. App. 2007), cert. denied, 979 So. 2d 691, 2008 Miss. LEXIS 176 (Miss. 2008).

Federal district court correctly denied state death row inmate’s habeas corpus petition; although the prosecutor improperly invoked the position of his office by telling the jury that the case was a “rare” one in which he felt he must seek the death penalty, a state court correctly found that no prejudice resulted. Holland v. Anderson, 439 F. Supp. 2d 644, 2006 U.S. Dist. LEXIS 46788 (S.D. Miss. 2006).

Appellate court found no merit to defendant’s claim that he did not receive a fair trial on the ground that the State failed to provide him with a copy of the original police report where the only alteration made to the police report was the addition of the word “recovered” written next to the entry regarding the victim’s credit card. The trial court allowed defendant additional time to restructure his cross-examination of the officer who wrote the report. Roach v. State, 938 So. 2d 863, 2006 Miss. App. LEXIS 102 (Miss. Ct. App.), cert. denied, 937 So. 2d 450, 2006 Miss. LEXIS 600 (Miss. 2006).

Victim’s in-court identification of defendant did not deny him a fair trial where the victim did not identify defendant as the man who robbed him, he simply observed that defendant’s build was similar to that of the taller man; this observation did not rise to the level of an identification. Powell v. State, 878 So. 2d 144, 2004 Miss. App. LEXIS 37 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 962 (Miss. 2004).

Defendants were not denied a fair trial when the prosecution was allowed to put on evidence of a prior inconsistent statement; defense counsel questioned the detective about the content of the witness’s statements, and defendants could not complain that they had not received a fair trial for the reason that the prosecution had been allowed to question the detective about the content of the witness’s statement. Powell v. State, 878 So. 2d 144, 2004 Miss. App. LEXIS 37 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 962 (Miss. 2004).

86. Presence of accused at trial.

Where defendant and his attorney were asked to return in the afternoon for trial and defendant did not return, the trial court did not err in trying defendant in absentia under Miss. Code Ann. §99-17-9; the jury was properly instructed not to make any assumptions regarding defendant’s absence when considering his guilt or innocence. Being tried in absentia does not violate the United States Constitution. Ali v. State, 2004 Miss. App. LEXIS 1118 (Miss. Ct. App. Dec. 7, 2004), sub. op., op. withdrawn, 928 So. 2d 237, 2006 Miss. App. LEXIS 336 (Miss. Ct. App. 2006).

87. –Accomplices and co-defendants, due process.

The State’s plea bargain with a codefendant which was conditional upon his testimony at the defendant’s trial did not violate due process where there was no indication that the codefendant’s plea reduction was made conditional upon “false or specific testimony or a specific result,” and the defendant’s attorney cross-examined the codefendant extensively on the plea bargain; the practice of the State’s withholding its end of a plea bargain until a codefendant has testified is permissible and does not result in tainted and inadmissible testimony, but rather the existence of a plea bargain is to be considered by the trier of fact in determining the credibility of the codefendant’s testimony. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

Upon a prima facie showing of the existence of an advance plea agreement between the state and a codefendant who was state’s principal witness, whereby in exchange for testifying for the state the codefendant would receive a lenient sentence for armed robbery, a defendant, who had been convicted for the same robbery as accessory before the fact, may be entitled to post-conviction relief where the agreement had not been disclosed prior to his trial, although the defense had made a general discovery request for exculpatory material, and the existence of any such agreement had been denied by the codefendant while testifying at the defendant’s trial. Case would be remanded to circuit court for evidentiary hearing. Malone v. State, 486 So. 2d 367, 1986 Miss. LEXIS 3139 (Miss. 1986).

A defendant is entitled to know of any advance plea agreement between the state and a codefendant who is to testify against him, and a general discovery request is adequate to impose upon the prosecution the duty of disclosure. Malone v. State, 486 So. 2d 367, 1986 Miss. LEXIS 3139 (Miss. 1986).

Where parents were charged with capital murder of their child, the trial court did not abuse its discretion in denying the defendants’ motion for severance, even though each defendant had a right to call the co-defendant as a witness and even though each co-defendant had a right to invoke the Fifth Amendment. Cardwell v. State, 461 So. 2d 754, 1984 Miss. LEXIS 2060 (Miss. 1984).

Non-disclosure of the prosecutor’s plea agreement with a codefendant under circumstances where the terms of that agreement might reasonably touch upon the codefendant’s credibility or otherwise undermine confidence in the outcome of the trial may vitiate a criminal conviction and require a new trial. Such rule emanates from Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), later proceeding, 2 Md. App. 146, 233 A.2d 378 (1967), habeas corpus proceeding, 314 F. Supp. 799 (D. Md. 1970), aff’d, 443 F.2d 1307 (4th Cir. Md. 1971), not followed, United States v. Oxman, 740 F.2d 1298, 16 Fed. R. Evid. Serv. 505 (3d Cir. Pa. 1984), disagreed, United States v. Borello, 766 F.2d 46, 1985 U.S. App. LEXIS 19989 (2d Cir. N.Y. 1985).

88. –Informants, due process.

Law enforcement officers’ use of defendant’s wife as confidential informant did not violate defendant’s right to due process, where neither wife nor officer with whom she spoke testified at trial. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

89. –Mental examination, due process.

Experts who rendered diagnosis of “no mental disorder” for low intelligence quotient for capital murder defendant, after being appointed to perform mental examination of him to determine his competency to stand trial, afforded defendant constitutionally adequate evaluation and furnished constitutionally adequate report. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Defendant was not competent to stand trial due to finding that he was unable to assist in his defense, where defendant’s intelligence quotient was 48 to 52, findings of psychologist concluded that defendant did not possess mental capacity to assist in preparation of defense, and district attorney’s motion to pass case to files contained affidavit asking that defendant be committed to mental institution; state’s only effort at rebutting evidence of incompetency was effort to prove that defendant had answered questions rationally at his arraignment. Gammage v. State, 510 So. 2d 802, 1987 Miss. LEXIS 2641 (Miss. 1987).

90. –Identification of defendant, due process.

Appellate court overruled defendant’s argument that the on-the-scene identification violated his due process rights and prevented him from receiving a fair trial, because the pre-trial identification was sufficiently reliable. The victim had the opportunity to view defendant two or three times before the armed robbery occurred, the victim testified that he was indeed paying attention before, during and after the robbery, the record indicated that the victim gave a detailed description of defendant that was largely accurate, and the victim was, insofar as the record revealed, unequivocal in his ability to identify defendant on four separate occasions. Johnson v. State, 884 So. 2d 787, 2004 Miss. App. LEXIS 426 (Miss. Ct. App.), cert. denied, 883 So. 2d 1180, 2004 Miss. LEXIS 1302 (Miss. 2004).

Chance encounter with the victim at the police station did not amount to an unnecessarily suggestive, single person show-up identification such as to violate due process; the victim’s description given to police was sufficiently accurate for them to identify defendant as a suspect based on nothing but information obtained from her, and only the briefest of time transpired between the victim’s encounter in the parking lot and her subsequent unanticipated encounter with defendant at the police station, at which time she identified him of her own volition, apparently without any prompting or inquiry from any investigating officer. Garner v. State, 856 So. 2d 729, 2003 Miss. App. LEXIS 936 (Miss. Ct. App. 2003).

When a reasonably intelligent eyewitness has had a good opportunity to view the features of the perpetrator of a crime, the method the police use in having the witness identify the defendant recedes in importance in inverse ratio to the intelligence of the witness and opportunity to view the perpetrator. Thus, a rape defendant’s argument that the victim’s in-court identification resulted from an impermissibly suggestive photographic identification of the defendant, or from seeing him at the preliminary hearing, was without merit where the victim was a sensible child who had ample opportunity to view the rapist in the daylight, she gave a description of the defendant to a police officer, the accuracy of which was undisputed, and she identified the defendant’s photograph without hesitation no more than 1 1/2 hours after the crime. Powell v. State, 566 So. 2d 1228, 1990 Miss. LEXIS 461 (Miss. 1990).

A robbery victim’s in-court identification of the defendant was not tainted by her extensive observation of the defendant at a pre-trial parole revocation hearing where the victim testified at the suppression hearing concerning her ample opportunity to observe the defendant at the time of the robbery. Saucier v. State, 562 So. 2d 1238, 1990 Miss. LEXIS 244 (Miss. 1990), overruled in part, White v. State, 785 So. 2d 1059, 2001 Miss. LEXIS 44 (Miss. 2001).

A pretrial voice identification of a burglary defendant was impermissibly suggestive and, therefore, denied the defendant due process of law where the witness heard only one voice after he was shown his stolen items by the police and was told by the police that the man whose voice he was hearing had those items on his person. Estes v. State, 533 So. 2d 437, 1988 Miss. LEXIS 522 (Miss. 1988).

Although a photographic display, in which the defendant was the only one pictured with bare arms prominently displaying his tattoo, was suggestive, an in-court identification by the witness who identified the defendant from the photographs was not precluded where the witness had ample opportunity to observe the assailant during the crime, where she described accurate details based on that observation, she immediately identified the defendant on viewing the display, and where the display was conducted only 6 days after the crime. Nicholson v. State, 523 So. 2d 68, 1988 Miss. LEXIS 73 (Miss. 1988).

In a forgery prosecution, a witness’ reviewing of a photograph of the forgery suspect taken by a store security system at the time that the suspect cashed the forged check did not impermissibly taint the witness’ in-court identification of the defendant so as to render it inadmissible. Such photographs may properly be used to refresh the recollection of an eyewitness since they show the person who actually committed the crime as opposed to some possible suspect in the police files. George v. State, 521 So. 2d 1287, 1988 Miss. LEXIS 107 (Miss. 1988).

A photographic display identification procedure was not suggestive where the defendant’s photograph was on the top of a stack given to the witness, where the witness identified the top photograph as that of the defendant, and where he refused to look at any other pictures. Wash v. State, 521 So. 2d 890, 1988 Miss. LEXIS 115 (Miss. 1988), overruled, Wharton v. State, 734 So. 2d 985, 1998 Miss. LEXIS 576 (Miss. 1998).

In a prosecution for burglary, the trial court did not err by permitting the victim to identify defendant in court after he had identified defendant in a highly suggestive station house line-up, where the witness had had an opportunity to view defendant at the time of the crime and to notice his facial features, where the witness had displayed a strong level of certainty regarding both identifications, and where the time between the burglary and the line-up was not more than several hours; defendant’s due process rights were not violated. Stewart v. State, 377 So. 2d 1067, 1979 Miss. LEXIS 2550 (Miss. 1979).

91. –Polygraph tests, due process.

The prosecution’s failure to disclose the inadmissible results of a polygraph test given to a key witness did not violate the rule of Brady v. Maryland, 373 U.S. 83 (1963) or the due process clause of the federal constitution. Wood v. Bartholomew, 516 U.S. 1, 116 S. Ct. 7, 133 L. Ed. 2d 1, 1995 U.S. LEXIS 6760 (U.S. 1995).

92. –Habitual offenders, due process.

A defendant was properly sentenced as a habitual offender pursuant to §99-19-81, even though the habitual offender language of the indictment failed to state the dates of his prior convictions, where all of the information contained in the indictment, and specifically the cause number, afforded the defendant access to the date of judgment. Therefore, the information pertaining to the dates of the judgments was substantially set forth in the indictment and sufficient information was afforded the defendant to inform him of the specific prior convictions upon which the State relied for enhanced punishment to comply with due process. Benson v. State, 551 So. 2d 188, 1989 Miss. LEXIS 361 (Miss. 1989).

93. –Delay, due process.

A 26 year delay between the defendant’s second mistrial in 1964 and subsequent entry of a nolle prosequi in 1969 and his reindictment in 1990 did not violate his due process right to a speedy trial as the state did not intentionally delay the reindictment and there was no prejudice. Beckwith v. Anderson, 89 F. Supp. 2d 788, 2000 U.S. Dist. LEXIS 7033 (S.D. Miss. 2000).

In a capital murder prosecution involving an underlying felony of rape, the defendant’s due process rights were not violated by a delay in providing the defendant with a “sexual assault kit” which collected samples of the victim’s body fluids, even though the defendant did not receive the samples until almost one year after the State’s expert conducted his testing, which allegedly resulted in the “degradation” of the samples so that the defendant was unable to perform accurate tests, where the State fully complied with a court order to preserve half the samples, and any delay in receiving the samples was due to the defendant’s failure to “simply go and get the samples” from the State’s expert and the defendant’s mistaken belief that the expert had used up all the samples. Holland v. State, 587 So. 2d 848, 1991 Miss. LEXIS 648 (Miss. 1991).

There was no merit in argument that defendant’s due process rights had been violated by unexcused and unreasonable delay in charging him with crime where there was no proof government even knew of alleged embezzlement before receiver of trust went to district attorney’s office, which occurred after death of trust beneficiary, much less that government deliberately delayed indictment in order to gain advantage over defendant. Hooker v. State, 516 So. 2d 1349, 1987 Miss. LEXIS 2952 (Miss. 1987).

94. –Burden of proof, due process.

To establish due process violation under Brady , defendant must show that: (1) evidence was suppressed; (2) suppressed evidence was favorable to defense; and (3) suppressed evidence was material either to guilt or to punishment. United States v. Dixon, 132 F.3d 192, 1997 U.S. App. LEXIS 36328 (5th Cir. Miss. 1997), cert. denied, 522 U.S. 1061, 118 S. Ct. 721, 139 L. Ed. 2d 661, 1998 U.S. LEXIS 260 (U.S. 1998), cert. denied, 523 U.S. 1096, 118 S. Ct. 1581, 140 L. Ed. 2d 796, 1998 U.S. LEXIS 2864 (U.S. 1998).

Without a showing of prejudice, defendant cannot make out claim of due process violation. Simmons v. State, 678 So. 2d 683, 1996 Miss. LEXIS 285 (Miss. 1996).

Federal due process interests in property arise only from an independent source, such as state law statutory guarantees; if plaintiff fails to show property interest through independent source, due process considerations are not implicated. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

The capital murder statute (§99-19-101) does not unconstitutionally shift the burden of proof during the sentencing phase by requiring a defendant to come forward with proof of mitigating circumstances or automatically have the death penalty imposed, since the statute does not require the jury to impose death when aggravating circumstances are shown and mitigating circumstances are not; proof of aggravating circumstances may still be found insufficient by the jury to require death and the state still carries the burden of showing not only aggravating circumstances, but that the circumstances are sufficient to warrant death. Furthermore, the statute is not unconstitutional for failing to provide guidelines for appellate review, since a comparison with other cases where the death penalty was upheld is constitutionally adequate and comparison with cases of life imprisonment is not required; the use of the “especially heinous, atrocious, or cruel” aggravating circumstances is not vague, overbroad or violative of the Fifth Amendment, and the statute does not unconstitutionally allow unlimited evidence at the sentencing stage, since evidence is limited to the aggravating circumstances listed in the statute. Coleman v. State, 378 So. 2d 640, 1979 Miss. LEXIS 2542 (Miss. 1979).

95. –Instructions, due process.

Trial court did not deny due process rights of capital murder defendant by giving instruction that jury had first to acquit defendant on greater charge of capital murder before going on to consider whether defendant had committed lesser crime of murder. Walker v. State, 671 So. 2d 581, 1995 Miss. LEXIS 494 (Miss. 1995), cert. denied, 519 U.S. 1011, 117 S. Ct. 518, 136 L. Ed. 2d 406, 1996 U.S. LEXIS 7236 (U.S. 1996).

96. –Review, due process.

It is not violation of due process to have appellate court perform reweighing or harmless error analysis when invalid aggravating circumstance is found to exist in capital case. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

A post-conviction relief petitioner was not entitled to de novo review on appeal from a ruling that he was competent to be executed where the trial judge stated that he relied on §99-19-57(2)(b) and Ford v Wainwright (1985, US) 91 L Ed 2d 335, 106 S Ct 2595 in determining the petitioner’s competency, and that the petitioner failed to prove by a preponderance of the evidence that he was not competent to be executed; the petitioner was afforded due process and the trial judge’s ruling could only be reversed if it were against the overwhelming weight of the evidence or an abuse of discretion. Billiot v. State, 655 So. 2d 1, 1995 Miss. LEXIS 88 (Miss. 1995), cert. denied, 516 U.S. 1095, 116 S. Ct. 818, 133 L. Ed. 2d 762, 1996 U.S. LEXIS 787 (U.S. 1996).

97. Parole or probation proceedings.

Because the inmate failed the urine test four months short of completing the one-year in the Intensive Supervision Program (ISP), there was no denial of due process or equal protection by the denial of an evidentiary hearing, and there was no double jeopardy issue because the Mississippi Department of Corrections (MDOC) simply changed the inmate’s status as a prisoner by revoking the inmate from ISP, and placing the inmate in an MDOC facility to serve the remainder of the inmate’s sentence. McBride v. Sparkman, 860 So. 2d 1237, 2003 Miss. App. LEXIS 1070 (Miss. Ct. App. 2003).

98. Taking for public use.

In a dispute surrounding the enactment of a district ordinance regulating the disposal of wastewater, residents, who owned septic systems, alleged that the enactment of the ordinance amounted to an unconstitutional taking. A genuine issue of material fact existed; therefore, the chancellor erred in granting summary judgment on this issue, and the record was insufficiently developed to afford appellate review. Green v. Cleary Water, Sewer & Fire Dist., 910 So. 2d 1022, 2005 Miss. LEXIS 394 (Miss. 2005), cert. denied, 547 U.S. 1098, 126 S. Ct. 1883, 164 L. Ed. 2d 568, 2006 U.S. LEXIS 3287 (U.S. 2006).

Requiring a landowner to connect to the sewer system was not a taking. Croke v. Southgate Sewer Dist., 857 So. 2d 774, 2003 Miss. LEXIS 557 (Miss. 2003).

City sign regulations which barred the placement of an exterior sign on a “single office building” did not constitute an unjust taking of the plaintiff’s right to erect a sign without appropriate compensation. American Federated Gen. Agency, Inc. v. City of Ridgeland, 72 F. Supp. 2d 695, 1999 U.S. Dist. LEXIS 17760 (S.D. Miss. 1999).

The residents of a neighborhood did not suffer an unconstitutional taking of property rights and diminution of property values as a result of the removal of a “no thru truck” restriction on a road through the neighborhood. Mathis v. City of Greenville, 724 So. 2d 1109, 1998 Miss. App. LEXIS 1044 (Miss. Ct. App. 1998).

Neither natural gas utility’s arguments on its Fifth Amendment taking and procedural due process claims, on its claim that exculpation clause in its Army Corps of Engineers permit to lay pipelines across river was unenforceable, or on its claim that Flood Control Act governmental immunity provision should not apply, nor federal government’s arguments in government’s motion for Rule 11 sanctions against utility, were frivolous so as to subject either party to Rule 11 sanctions and attorney fees, in utility’s action against government, alleging negligence by Corps in designing and constructing dikes and revetment, causing pipelines crossing river to burst. Columbia Gulf Transmission Co. v. United States, 966 F. Supp. 1453, 1997 U.S. Dist. LEXIS 8814 (S.D. Miss. 1997).

Statute of limitations for Mississippi landowner’s claims asserting due process taking violations, equal protection violations, and discrimination on account of race was Mississippi’s 3-year residual statute of limitations. Taylor v. County of Copiah, 937 F. Supp. 573, 1994 U.S. Dist. LEXIS 20977 (S.D. Miss. 1994), aff'd, 51 F.3d 1042, 1995 U.S. App. LEXIS 8212 (5th Cir. Miss. 1995).

Landowner’s claim that county maintenance activities along roads within his property damaged property, did not give rise to constitutional taking claim. Taylor v. County of Copiah, 937 F. Supp. 573, 1994 U.S. Dist. LEXIS 20977 (S.D. Miss. 1994), aff'd, 51 F.3d 1042, 1995 U.S. App. LEXIS 8212 (5th Cir. Miss. 1995).

A restrictive covenant is an interest in real property for which due compensation must be paid upon a taking by the exercise of eminent domain powers. Morley v. Jackson Redevelopment Auth., 632 So. 2d 1284, 1994 Miss. LEXIS 75 (Miss. 1994).

Homeowners who suffered additional damages allegedly attributable to a highway construction project a few years after the homeowners were compensated for the taking of their property by the condemning authority in an eminent domain action could not recover for the additional damages, even if those damages were not reasonably foreseeable at the time of the original eminent domain trial. King v. Mississippi State Highway Com., 609 So. 2d 1251, 1992 Miss. LEXIS 590 (Miss. 1992).

An actual taking or physical invasion of property is not the only basis for compensation. Damage to adjacent private property caused by public use is also compensable. Property is damaged when it is made less valuable. Personal inconvenience, discomfort, or interference with use is not compensable unless it results in the depreciation of value. Even then, compensation is not definite, but these factors are evidence of conditions which adversely affect the value of land. Persons owning property abutting streets have a right to reasonable access to their property from the street, and altering that access may damage the property. Where alteration of access, including light, air and view, diminishes the value of the property, the owner is entitled to compensation; such compensation is commonly termed consequential damages. Gilich v. Mississippi State Highway Com., 574 So. 2d 8, 1990 Miss. LEXIS 778 (Miss. 1990).

The alteration of access to property requires compensation only where, and to the extent that, alteration of access diminishes the value of the property. Matters such as parking and increased difficulty in maneuvering automobiles may likewise be considered to the extent of their adverse effect on property value. Additionally, loss of frontage that “moves” buildings and facilities closer to a roadway may adversely affect value and require compensation. However, compensation for such losses is due only to the extent that the damage is caused by governmental action as distinguished from landowner improvements. Thus, such losses are legally illusory where there has been no taking, but only a reclaiming of a right-of-way that the landowner has theretofore enjoyed and where the landowner has boxed himself or herself in by the manner in which he or she has constructed or purchased the improvements on the property. So long as, after the governmental action at issue, there remains access which would be reasonable if the property had been reasonably improved, no compensation is due. City of Gulfport v. Anderson, 554 So. 2d 873, 1989 Miss. LEXIS 441 (Miss. 1989).

Compensation is required for a change of grade in a roadway which adversely affects the value of adjacent property, such as where a change in grade casts increased quantities of water upon the landowner’s property. City of Gulfport v. Anderson, 554 So. 2d 873, 1989 Miss. LEXIS 441 (Miss. 1989).

The 2 lakes artificially created by dredging for fill materials used in construction of Interstate Highway I-10 are not part of the State’s tidelands public trust, and to strip these artificial tidelands from their record titleholders would constitute a taking within the Fifth and Fourteenth Amendments to the United States Constitution and within Mississippi Constitution Article 3, § 17, which taking would require just compensation from the State. Cinque Bambini Partnership v. State, 491 So. 2d 508, 1986 Miss. LEXIS 2462 (Miss. 1986), aff'd, 484 U.S. 469, 108 S. Ct. 791, 98 L. Ed. 2d 877, 1988 U.S. LEXIS 939 (U.S. 1988).

Due compensation requirements of the United States and Mississippi constitutions did not prohibit taxing a landowner with appeal costs and damages pursuant to Code 1972, §§11-3-23 [repealed] and11-27-29 where he appealed from a judgment in a special court of eminent domain and was not successful in having the award increased. Antley v. Mississippi State Highway Com., 318 So. 2d 847, 1975 Miss. LEXIS 1452 (Miss. 1975).

Tobacco tax held not to violate constitutional provision prohibiting taking property for public use without compensation. Edward Hines Lumber Co. v. Hall, 148 So. 373 (Miss. 1933).

The provision against taking private property without just compensation is a limitation upon the Federal Government alone, and does not apply to the states. Martin v. Dix, 52 Miss. 53, 1876 Miss. LEXIS 163 (Miss. 1876).

99. Sentence and punishment – In general.

Defendant’s post-conviction motion was properly dismissed because while defendant retained the ability to challenge the legality of the incarceration, despite entering into an agreed sentencing order whereby defendant agreed not to file an appeal or a motion for post-conviction collateral relief, nothing in the record showed that defendant was illegally confined. Thompson v. State, 10 So.3d 525, 2009 Miss. App. LEXIS 48 (Miss. Ct. App.), cert. denied, 17 So.3d 99, 2009 Miss. LEXIS 424 (Miss. 2009).

In a capital murder case where defendant was indicted separately for each of four murders, submission of the “great risk of death to many persons” aggravator did not violate defendant’s Fifth Amendment rights, as evidence regarding the other three killings was relevant in the case at bar during sentencing. Flowers v. State, 842 So. 2d 531, 2003 Miss. LEXIS 149 (Miss. 2003).

In a case involving the sale of cocaine, defendant’s rights under Miss. Const. Art. 3, §§ 14, 26, 28 and U.S. Const. Amends. 5, 6, 8, and 14 were not violated by the maximum 30-year sentence; the sentence imposed was within the statutory limitation and was within the sound discretion of the trial judge. Johnson v. State, 950 So. 2d 178, 2007 Miss. LEXIS 125 (Miss. 2007).

Federal district court correctly denied state death row inmate’s habeas corpus petition; pretrial publicity was not pervasive enough to prejudice the resentencing jury because resentencing occurred years after the initial guilt and sentencing phases and merited only passing news coverage, even though media coverage of the trial itself was substantial. Holland v. Anderson, 439 F. Supp. 2d 644, 2006 U.S. Dist. LEXIS 46788 (S.D. Miss. 2006).

Cited in

Barnes v. State, 920 So. 2d 1019, 2005 Miss. App. LEXIS 527 (Miss. Ct. App. 2005).

Amendment VI Jury trial for crimes and procedural rights

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Cross References —

Rights of accused, see USCS Const Amend V.

RESEARCH REFERENCES

ALR.

Duty to advise accused as to right to assistance of counsel. 3 A.L.R.2d 1003.

Exclusion of women from grand or trial jury panel in criminal case as violation of constitutional rights of accused or as ground for reversal of conviction. 9 A.L.R.2d 661.

Waiver or loss of accused’s right to speedy trial. 57 A.L.R.2d 302.

Constitutionally protected right of indigent accused to appointment of counsel in state court prosecution. 93 A.L.R.2d 747.

What constitutes compliance with knock-and-announce rule in search of private premises/state cases. 70 A.L.R.3d 217.

Propriety of exclusion of press or other media representatives from civil trial. 79 A.L.R.3d 401.

Accused’s right to represent himself in state criminal proceeding–modern state cases. 98 A.L.R.3d 13.

Excusing, on account of public, charitable, or educational employment, one qualified and not specifically exempted as juror in state criminal case, as ground of complaint by accused. 99 A.L.R.3d 1261.

Adequacy of defense counsel’s representation of criminal client regarding right to and incidents of jury trial. 3 A.L.R.4th 601.

Adequacy of defense counsel’s representation of criminal client regarding plea bargaining. 8 A.L.R.4th 660.

Adequacy of defense counsel’s representation of criminal client regarding entrapment defense. 8 A.L.R.4th 1160.

Adequacy of defense counsel’s representation of criminal client regarding hypnosis and truth tests. 9 A.L.R.4th 354.

Adequacy of defense counsel’s representation of criminal client regarding guilty plea. 10 A.L.R.4th 8.

Adequacy of defense counsel’s representation of criminal client regarding search and seizure issues. 12 A.L.R.4th 318.

Adequacy of defense counsel’s representation of criminal client regarding post-plea remedies. 13 A.L.R.4th 533.

Adequacy of defense counsel’s representation of criminal client regarding prior conviction. 14 A.L.R.4th 227.

Adequacy of defense counsel’s representation of criminal client regarding appellate and post-conviction remedies. 15 A.L.R.4th 582.

Continuances at instance of state public defender or appointed counsel over defendant’s objections as excuse for denial of speedy trial. 16 A.L.R.4th 1283.

Denial of accused’s request for initial contact with attorney–drunk driving cases. 18 A.L.R.4th 705.

Denial of accused’s request for initial contact with attorney–cases involving offenses other than drunk driving. 18 A.L.R.4th 743.

Conditions interfering with accused’s view of witness as violation of right of confrontation. 19 A.L.R.4th 1286.

Right of accused, in state criminal trial, to insist, over prosecutor’s or court’s objection, on trial by court without jury. 37 A.L.R.4th 304.

Exclusion of public from state criminal trial in order to preserve confidentiality of undercover witness. 54 A.L.R.4th 1156.

Exclusion of public from state criminal trial in order to prevent disturbance by spectators or defendant. 55 A.L.R.4th 1170.

Exclusion of public from state criminal trial in order to avoid intimidation of witness. 55 A.L.R.4th 1196.

Closed-circuit television witness examination. 61 A.L.R.4th 1155.

Exclusion of public from state criminal trial by conducting trial or part thereof at other than regular place or time. 70 A.L.R.4th 632.

Small claims; jury trial rights in, and on appeal from, small claims court proceeding. 70 A.L.R.4th 1119.

Requirement of jury unanimity as to mode of committing crime under statute setting forth the various modes by which offense may be committed. 75 A.L.R.4th 91.

Right of indigent defendant in state criminal case to assistance of investigators. 81 A.L.R.4th 259.

What constitutes assertion of right to counsel following Miranda warnings – state cases. 83 A.L.R.4th 443.

Right of indigent defendant in state criminal case to assistance of psychiatrist or psychologist. 85 A.L.R.4th 19.

Adequacy of defense counsel’s representation of criminal client – issues of mental matters concerning persons, other than counsel’s client, who are involved in criminal case. 80 A.L.R.5th 55.

Examination and challenge of state case jurors on basis of attitudes toward homosexuality. 80 A.L.R.5th 469.

Adequacy of defense counsel’s representation of criminal client – conduct at trial regarding issues of insanity. 95 A.L.R.5th 125.

Denial of, or interference with, accused’s right to have attorney initially contact accused. 96 A.L.R.5th 327.

Denial of accused’s request for initial contact with attorney – drunk driving cases. 109 A.L.R.5th 611.

Validity and application of computerized jury selection practice or procedure. 110 A.L.R.5th 329.

Adequacy of defense counsel’s representation of criminal client regarding search and seizure issues – Motions and objections during trial and matters other than pretrial motions. 117 A.L.R.5th 513.

Denial of accused’s request for initial contact with attorney in cases involving offenses other than drunk driving-Cases focusing on presence of inculpatory statements. 124 A.L.R.5th 1.

Modern status of rule as to test in federal court of effective representation by counsel. 26 A.L.R. Fed. 218.

Accused’s right, under 28 USCS § 1654, and similar predecessor statutes, to represent himself in federal criminal proceeding. 27 A.L.R. Fed. 485.

Excludable periods of delay under Speedy Trial Act (18 USCS § 3161(h)). 46 A.L.R. Fed. 358.

Circumstances giving rise to prejudicial conflict of interests between criminal defendant and defense counsel–federal cases. 53 A.L.R. Fed. 140.

Effect on federal criminal proceeding of unavailability to defendant of alien witness through deportation or other government action. 56 A.L.R. Fed. 698.

Waiver of right to trial by jury as affecting right to trial by jury on subsequent trial of same case in federal court. 66 A.L.R. Fed. 859.

Appealability of federal court order denying motion for appointment of counsel for indigent party. 67 A.L.R. Fed. 925.

Effect upon accused’s Sixth Amendment right to impartial jury of jurors having served on jury hearing matter arising out of same transaction or series of transactions. 68 A.L.R. Fed. 919.

Appointment of counsel, in civil rights action, under forma pauperis provisions (28 U.S.C.S. § 1915(d)). 69 A.L.R. Fed. 666.

Propriety of federal court’s exclusion of public from criminal or civil trial in order to protect trade secrets. 69 A.L.R. Fed. 892.

Sufficiency of demand for jury trial under Rule 38(b) of Federal Rules of Civil Procedure.73 A.L.R. Fed. 698.

Necessity that Miranda warnings include express reference to right to have attorney present during interrogation. 77 A.L.R. Fed. 123.

What constitutes assertion of right to counsel following Miranda warnings–federal cases. 80 A.L.R. Fed. 622.

Trial court’s order that accused and his attorney not communicate during recess in trial as reversible error under Sixth Amendment guaranty of right to counsel. 95 A.L.R. Fed. 601.

When may dismissal for violation of Speedy Trial Act (18 USCS §§ 3161-3174) be with prejudice to government’s right to reinstate action. 98 A.L.R. Fed. 660.

Am. Jur.

21 Am Jur 2d, Criminal Law §§ 183 et seq.

7 Am Jur Proof of Facts 2d, Prejudice Resulting from Unreasonable Delay in Trial, §§ 11 et seq. (proof of prejudice to defendant as result of unreasonable delay in trial).

30 Am Jur Trials 607, Defending against Claim of Ineffective Assistance of Counsel.

41 Am Jur Trials 394, Habeas Corpus: Pretrial Motions (right to speedy trial).

46 Am Jur Trials 571, Strategies for Enforcing the Right to Effective Representation.

CJS.

C.J.S. Criminal Law §§ 177 to 186, 277, 578 to 608, 610 to 621, 1115, 1120.

C.J.S. Declaratory Judgments § 152.

C.J.S. Juries §§ 6 to 279, 284, 286, 292, 299, 302 to 303, 306, 310, 354 to 356, 367, 396, 409, 443 to 447, 450 to 456, 459 to 461.

C.J.S. Witnesses § 6.

Lawyers’ Edition.

Validity and efficacy of minor’s waiver of right to counsel – cases decided since application of Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967).101 A.L.R.5th 351.

Accused’s right to speedy trial under Federal Constitution. 21 L. Ed. 2d 905.

Validity, under Federal Constitution, of criminal statute or ordinance making one fact presumptive or prima facie evidence of another. 23 L. Ed. 2d 812.

Federal constitutional right to confront witnesses. 23 L. Ed. 2d 853.

Accused’s constitutional right to public trial held applicable to suppression hearing. 81 L. Ed. 2d 31.

Accused’s right, under Federal Constitution’s Sixth Amendment, to compulsory process for obtaining witnesses in accused’s favor-Supreme Court cases. 98 L. Ed. 2d 1074.

Federal Constitutional right to confront witnesses – Supreme Court cases. 98 L. Ed. 2d 1115.

Supreme Court’s views as to what constitutes valid waiver of accused’s federal constitutional right to counsel. 101 L. Ed. 2d 1017.

Supreme Court’s views as to accused’s federal constitutional right to counsel on appeal. 102 L. Ed. 2d 1049.

Distinction between “petty” and “serious” offenses for purposes of federal constitutional right to trial by jury – Supreme Court caes. 103 L. Ed. 2d 1000.

Law Reviews.

1983 Mississippi Supreme Court Review: Effective assistance of counsel. 54 Miss L J 121, March, 1984.

1985 Mississippi Supreme Court Review–Criminal Law. 55 Miss L J 789, December 1985.

McInvale, Evidence – Can admissibility of co-defendants’ confessions under the hearsay rules serve as a minimum sandard for admissibility under the confrontation clause. 8 Miss C L Rev 33, Fall, 1987.

Morris, Constitutional law: validity of attorney fee caps in indigent cases: Mississippi’s challenge. 9 Miss College L R 373, Spring 1989.

1989 Mississippi Supreme Court Review: Sixth Amendment. 59 Miss L J 838, Winter, 1989.

Szlanfucht, Are Capital Defense Lawyers Educable? A Moderately Hopeful Report from the Trenches, 19 Miss C.L. Rev. 305 (Spring, 1999).

Recent Decision: Constitutional Law–Sixth Amendment–Right to Counsel–Uncounseled, Indigent Misdemeanants No Longer Stand Alone When Facing a Suspended Sentence to Imprisonment, 72 Miss. L.J. 909, Winter, 2002.

Interpreting the Confrontation Clause: Is There Dissension Among the Ranks?: Lilly v. Virginia, 119 S. Ct. 1887 (1999), 21 Miss. C. L. Rev. 83, Fall, 2001.

Crawford v. Washington: Implications for the Presentation of Child-Witness Testimony in Child-Abuse Cases, 25 Miss. C. L. Rev. 97, Fall, 2005.

Comment: Salvation Lies Within: Why the Mississippi Supreme Court Can and Should Step In to Solve Mississippi’s Indigent Defense Crisis, 74 Miss. L.J. 213, Fall, 2004.

Practice References.

Young, Trial Handbook for Mississippi Lawyers §§ 1:2, 1:5, 14:25, 15:1.

JUDICIAL DECISIONS

1. In general.

2. Construction and application.

3. General considerations.

4. Information of accusation.

5. Venue.

6. Public trial.

7. Presence of defendant.

8. Bias and prejudice, generally.

9. Publicity, generally.

10. Plea bargain.

11. Mental examination and treatment.

12. Guilty plea, generally.

13. Argument of counsel.

14. Instructions.

15. Instructions curative of error.

16. Verdict.

17. Sentence and punishment, generally.

18. Speedy trial – In general.

19. –Administrative proceedings, speedy trial.

20. –Statutory right to speedy trial.

21. – Time right accrues, speedy trial.

22. –Tests, speedy trial.

23. –Tolling of time, speedy trial.

24. –Complexity of case, speedy trial.

25. – Delay attributable to defendant, speedy trial.

26. – Delay attributable to state, speedy trial.

27. – Delay unattributable to defendant or state, speedy trial.

28. –Shared attribution for delay, speedy trial.

29. –Indictment and information, speedy trial.

30. –Change of counsel, speedy trial.

31. –Plea negotiations, speedy trial.

32. – Crowded docket, speedy trial.

33. –Incompetency of defendant, speedy trial.

34. –Continuances, speedy trial.

35. – Guilty plea, speedy trial.

36. –Totality of circumstances, speedy trial.

37. – Prejudice to defendant, speedy trial.

38. –Presumptive prejudice, speedy trial.

39. – Timely assertion of right, speedy trial.

40. –Manner of asserting right, speedy trial.

41. – Failure to assert rights, speedy trial.

42. – Right not violated, speedy trial.

43. –Burden of proof, speedy trial.

44. – Sufficiency of evidence, speedy trial.

45. –Waiver, speedy trial.

46. –Habitual offender adjudication, speedy trial.

47. – Retrial, speedy trial.

48. –Remedies, speedy trial.

49. –Habeas corpus, speedy trial.

50. –Review, speedy trial.

51. –Postconviction relief, speedy trial.

52. –Direct appeal bar, speedy trial.

53. Impartial jury – In general.

54. –Statutes and court rules, impartial jury.

55. –Administrative proceedings, impartial jury.

56. – Qualification as juror, impartial jury.

57. –Publicity, impartial jury.

58. – Racial make-up of jury, impartial jury.

59. –Voir dire, impartial jury.

60. –Peremptory challenges, impartial jury.

61. –Challenges for cause, impartial jury.

62. –Conscientious scruples of jurors, impartial jury.

63. –Gender discrimination in jury selection, impartial jury.

64. – Racial discrimination in jury selection, impartial jury.

65. – Race-neutral exercise of per-emptory challenges, impartial jury.

66 – Race-neutral reason for exclusion, impartial jury.

67. –Capital cases, impartial jury.

68. –Failure to object, impartial jury.

69. –Trial conduct, impartial jury.

70. Appearance of accused in handcuffs, shackles or prison clothes.

71. Confrontation of witnesses – In general.

72. –Statutes and court rules, confrontation of witnesses.

73. –Time right accrues, confrontation of witnesses.

74. –Discovery, confrontation of witnesses.

75. – Child abuse, confrontation of witnesses.

76. –Child witnesses, confrontation of witnesses.

77. – Informants, confrontation of witnesses.

78. – Hearsay, confrontation of witnesses.

79. – Unavailable witnesses, confrontation of witnesses.

80. –Guilty plea, confrontation of witnesses.

81. –Test results, confrontation of witnesses.

82. – Medical reports, confrontation of witnesses.

83. – Cross-examination, confrontation of witnesses.

84. –Collateral matters, confrontation of witnesses.

85. –Waiver, confrontation of witnesses.

86. Compulsory process.

87. Assistance of counsel – In general.

88. – Questioning or comments about exercise of right to counsel, assistance of counsel.

89. – Pro se representation, assistance of counsel.

90. – Plea proceedings as ineffective assistance of counsel, assistance of counsel.

91. – Administrative proceedings, assistance of counsel.

92. –Probation or parole revocation proceedings, assistance of counsel.

93. –Joint representation, assistance of counsel.

94. – Accrual of right, assistance of counsel.

95. –Invocation of right, assistance of counsel.

96. – Necessity for assignment of counsel, assistance of counsel.

97. – Questioning of defendant after request for assistance of counsel.

98. –Questioning of defendant after counsel was hired or appointed without counsel present, assistance of counsel.

99. – Questioning of defendant without presence of counsel retained for different matter, assistance of counsel.

100. –Time that assistance is provided, assistance of counsel.

101. – – Substituted counsel, assistance of counsel.

102. – Critical stage, assistance of counsel.

103. –Line up, assistance of counsel.

104. – Guilty plea, assistance of counsel.

105. – Mental examination, assistance of counsel.

106. –Medical examination, assistance of counsel.

107. –Statements to private persons or informants, assistance of counsel.

108. – Waiver, assistance of counsel.

109. –Misinformation from counsel, assistance of counsel.

110. – Conflicts of interest, assistance of counsel.

111. – Ineffective counsel generally, assistance of counsel.

112. – Tests of ineffectiveness of counsel, assistance of counsel.

113. –Time at which issue of ineffective counsel raised, assistance of counsel.

114. –Manner of raising issue of ineffectiveness of counsel, assistance of counsel.

115. – Trial strategy rather than ineffectiveness of counsel, assistance of counsel.

116. – Failure or refusal to present evidence as ineffectiveness of counsel, assistance of counsel.

117. – Inadequate preparation for trial as ineffectiveness of counsel, assistance of counsel.

118. – Failure to file motion for severance as ineffective assistance of counsel, assistance of counsel.

119. – Filing motion for severence without permission, assistance of counsel.

120. – Jury selection as instance of ineffective assistance of counsel, assistance of counsel.

121. – Failure to object to indictment as ineffectiveness of counsel, assistance of counsel.

122. – Failure to object to evidence as ineffectiveness of counsel, assistance of counsel.

122.5. —Failure to object to admission of confession.

123. – Failure to call witnesses as ineffectiveness of counsel, assistance of counsel.

124. –Failure to object to argument of state as ineffectiveness of counsel, assistance of counsel.

125. – Failure to object to or request instructions as ineffectiveness of counsel, assistance of counsel.

126. –Sentencing phase procedures as indicative of ineffectiveness of counsel, assistance of counsel.

127. –Failure to appeal as ineffectiveness of counsel, assistance of counsel.

128. – Totality of circumstances demonstrating ineffectiveness of counsel, assistance of counsel.

129. – Different outcome likely as proof of ineffectiveness of counsel, assistance of counsel.

130. –Presumptions of ineffectiveness of counsel, assistance of counsel.

131. – Burden of proof of ineffectiveness of counsel, assistance of counsel.

132. – Sufficiency of evidence of ineffectiveness of counsel, assistance of counsel.

133. – Post-conviction proceedings, assistance of counsel.

134. – Failure to file motion for reconsideration as ineffective assistance of counsel, assistance of counsel.

101. - Substituted counsel, assistance of counsel.

133. — Post-conviction proceedings, assistance of counsel.

135. Change of venue.

136. Leading questions.

137. Miscellaneous reports and records.

138. Other particular homicides.

139. – Other particular circumstances.

139. — Other particular circumstances.

140. Lineup.

1. In general.

Petitioner was granted leave to proceed in the trial court with his post-conviction relief petition on his claim that his Sixth Amendment right to trial by an impartial jury was violated since one of the jurors was biased; since petitioner’s claim was at least “procedurally alive,” his allegation of improper juror contact warranted an evidentiary hearing. Corrothers v. State, 255 So.3d 99, 2017 Miss. LEXIS 40 (Miss. 2017).

Supreme court cannot ignore the plain language of the Sixth Amendment, which limits its own application to “criminal prosecutions"; To the extent the supreme court held in the case of In Interest of C.B., 574 So. 2d 1369, 1374, that the Sixth Amendment applies in civil proceedings, the supreme court overrules it. Miller v. Smith, 229 So.3d 100, 2017 Miss. LEXIS 427 (Miss. 2017).

In a murder case, even if defendant’s constitutional rights were violated, no overwhelming injustice occurred because there was overwhelming evidence presented of his guilt. Offenses to certain constitutional rights did not require a per se reversal. Hall v. State, — So.3d —, 2016 Miss. LEXIS 125 (Miss. Mar. 17, 2016).

Although the state failed to identify the nurse who drew defendant’s blood, and defendant was consequently unable to cross-examine her, his Sixth Amendment right to confront witnesses was not violated. The Sixth Amendment does not require that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person or as part of the prosecution’s case; rather, gaps in the chain of custody normally go to the weight of the evidence rather than its admissibility. Deeds v. State, 27 So.3d 1135, 2009 Miss. LEXIS 588 (Miss. 2009), cert. denied, 562 U.S. 836, 131 S. Ct. 150, 178 L. Ed. 2d 37, 2010 U.S. LEXIS 5807 (U.S. 2010).

Defendant’s conviction for murder was appropriate because he was specifically instructed on his right to testify in his own defense and the trial judge was careful to inform defendant that the decision was for defendant alone to decide; the record did not demonstrate that defendant was refused an opportunity to present a defense, and the record and arguments demonstrated that defendant’s counsel was satisfied that defendant received what he asked of the trial judge. McCain v. State, 971 So. 2d 608, 2007 Miss. App. LEXIS 295 (Miss. Ct. App.), cert. denied, 973 So. 2d 244, 2007 Miss. LEXIS 700 (Miss. 2007), cert. denied, 553 U.S. 1056, 128 S. Ct. 2478, 171 L. Ed. 2d 772, 2008 U.S. LEXIS 4228 (U.S. 2008).

Where defendant failed to show that the under-representation of a racial group on his jury was based on a systematic exclusion in selection of the jury venire, defendant was not denied a jury that was a fair cross-section of the community. Pratt v. State, 870 So. 2d 1241, 2004 Miss. App. LEXIS 273 (Miss. Ct. App. 2004).

Defendant’s right to a fair trial was not denied where the prosecutor’s statements, while rambling and tending to bring in extraneous considerations, largely were focused on the need to consider that drugs were dangerous and possession should be a crime; the evidence offered to support conviction was of a person signing for delivery of marijuana, without any evidence that he was otherwise involved in the drug trade; the challenged arguments were not in the “send a message” category and the statements did not interfere with the fairness of the trial. Shanks v. State, 951 So. 2d 575, 2006 Miss. App. LEXIS 647 (Miss. Ct. App. 2006).

In defendant’s capital murder case, while the prosecutor’s comments to the jury regarding defendant’s having the protection of the constitution, but the victim not having it, were condemned, they did not constitute reversible error where the argument was not likely to have influenced the jury. The evidence of defendant’s callous indifference to human life was overwhelming, and the jury’s sentence was well supported by the record. Goodin v. State, 856 So. 2d 267, 2003 Miss. LEXIS 353 (Miss. 2003), cert. denied, 541 U.S. 947, 124 S. Ct. 1681, 158 L. Ed. 2d 375, 2004 U.S. LEXIS 2196 (U.S. 2004), overruled, Lynch v. State, 951 So. 2d 549, 2007 Miss. LEXIS 34 (Miss. 2007).

2. Construction and application.

Court rejected defendant’s claim that certain trial court rulings denied defendant a fundamentally fair trial ensured by U.S. Const. Amend. VI; because defendant’s asserted individual errors were without merit, defendant’s claim of cumulative effect was also without merit. Sheffield v. State, 844 So. 2d 519, 2003 Miss. App. LEXIS 374 (Miss. Ct. App. 2003).

Isolated reference to what perpetrators told an investigator about defendant’s connection to a burglary was insufficient to rise to the level of a Confrontation Clause issue, especially because one of the perpetrators testified against defendant in the trial for the offense of accessory after the fact to burglary. Martin v. State, 834 So. 2d 727, 2003 Miss. App. LEXIS 7 (Miss. Ct. App. 2003).

No right ranks higher than right of accused to fair trial. United States v. Nix, 976 F. Supp. 41 (1997).

In earlier decisions the view has been expressed that the Sixth Amendment to the Federal Constitution respecting rights of persons accused of crime has no application to State action, is not a limitation on powers of States, and is confined alone to Federal action. Caldwell v State, 176 M 80, 167 So 779; Skinner v State, 198 M 505, 23 So 2d 501. And that this amendment applies only to trials in Federal Courts and does not require giving to accused in criminal prosecution for burglary in state court assistance of counsel for his defense. Odom v. State, 205 Miss. 572, 37 So. 2d 300, 1948 Miss. LEXIS 221 (Miss. 1948), cert. denied, 336 U.S. 932, 69 S. Ct. 747, 93 L. Ed. 1092, 1949 U.S. LEXIS 2611 (U.S. 1949).

3. General considerations.

Trial court did not err in denying defendant’s motion to suppress his pre-trial confession to police because the State presented sufficient evidence to show that defendant’s statements were voluntarily made without threats, coercion, or an offer of reward. The State introduced a police officer’s testimony that stated that no threats were made and a videotape of the confession; also defendant signed a Miranda warning form and four forms waiving his rights to counsel and to remain silent. Manix v. State, 895 So. 2d 167, 2005 Miss. LEXIS 112 (Miss. 2005).

Defendant’s claims of ineffective assistance of counsel in all phases of his capital murder trial were rejected because the evidence showed defendant’s confession was not coerced, that police did not make promises to induce his confession and that defendant was read his Miranda rights before making his voluntary confession. Also defendant failed to show that his counsel’s failure to investigate a critical prosecution witness resulted in prejudice where there was sufficient other evidence of defendant’s guilt, or that he was not properly advised regarding a plea bargain offer. Hodges v. State, 912 So. 2d 730, 2005 Miss. LEXIS 164 (Miss.), cert. denied, 546 U.S. 1037, 126 S. Ct. 739, 163 L. Ed. 2d 579, 2005 U.S. LEXIS 8670 (U.S. 2005).

The presence of security personnel at trial did not deny defendant a fair trial – a witness frightened by the presence of many armed guards did not admit to having testified differently because of the presence of the guards. Russell v. State, 849 So. 2d 95, 2003 Miss. LEXIS 297 (Miss. 2003).

4. Information of accusation.

Aggravating circumstances used as grounds for defendant’s death sentence did not have to be included in the indictment because Apprendi did not require the inclusion of aggravating circumstances in defendant’s indictment. Corrothers v. State, 148 So.3d 278, 2014 Miss. LEXIS 311 (Miss. 2014), cert. denied, — U.S. —, 135 S. Ct. 2835, 192 L. Ed. 2d 877, 2015 U.S. LEXIS 3926 (U.S. 2015).

Defendant’s due process rights were not violated as the indictment was not required to have specified the items alleged to have been taken in a robbery. Batiste v. State, 121 So.3d 808, 2013 Miss. LEXIS 295 (Miss. 2013), cert. denied, 572 U.S. 1117, 134 S. Ct. 2287, 189 L. Ed. 2d 178, 2014 U.S. LEXIS 3424 (U.S. 2014).

Dismissal of an indictment charging defendant with being a felon in possession of a weapon and reversal of the conviction thereunder were required because the indictment failed to specify which, if any, of the four types of prohibited knives defendant was alleged to have possessed in violation of defendant’s federal and state constitutional rights. Thomas v. State, 126 So.3d 877, 2013 Miss. LEXIS 528 (Miss. 2013).

Indictment charging a person with money laundering under Miss. Code Ann. §97-23-101(1)(b)(ii)(1) was required to specify the “unlawful activity” from which the illegal proceeds were alleged to have derived, and violation of this requirement may be cured only where the prosecution demonstrated that it otherwise provided timely notice to defendant of the alleged illegal activity, and that the notice clearly and sufficiently provided defendant a fair opportunity to prepare a defense to the charges; the omission of the “specified unlawful activity” in defendant’s indictment was harmless error which did not render the trial fundamentally unfair. Tran v. State, 962 So. 2d 1237, 2007 Miss. LEXIS 475 (Miss. 2007), cert. denied, 553 U.S. 1054, 128 S. Ct. 2472, 171 L. Ed. 2d 769, 2008 U.S. LEXIS 4212 (U.S. 2008).

Because defendant’s indictment failed to charge the essential elements of armed robbery, the circuit court lacked subject matter jurisdiction over the offense of armed robbery, but the indictment properly charged defendant with the crime of simple robbery; however, defendant’s guilty plea was involuntary because he was not informed of the true nature and consequences of the charge. Garner v. State, 944 So. 2d 934, 2006 Miss. App. LEXIS 921 (Miss. Ct. App. 2006), cert. dismissed, 951 So. 2d 563, 2007 Miss. LEXIS 534 (Miss. 2007).

Because the information did not sufficiently charge defendant with armed robbery, as it did not charge the overt act as the display of a weapon by another perpetrator and then the shooting of the victim, defendant’s armed robbery conviction, the result of a guilty plea, was reversed; however, because there was a sufficient charge of simple robbery, if not for the word “attempt,” the court affirmed a conviction of robbery, and remanded for sentencing on that count. Neal v. State, 936 So. 2d 463, 2006 Miss. App. LEXIS 589 (Miss. Ct. App. 2006).

Indictment for murder includes all lower grades of felonious homicide, including manslaughter, and failure of state to elect between murder and manslaughter does not leave defendant ignorant of charge in violation of Sixth Amendment of United States Constitution and § 26 of Mississippi Constitution. Kelly v. State, 463 So. 2d 1070, 1985 Miss. LEXIS 1878 (Miss. 1985).

The right of an accused to be informed of nature and cause of the accusation against him is a fundamental right under the Sixth Amendment. Lambert v. State, 462 So. 2d 308, 1984 Miss. LEXIS 1968 (Miss. 1984).

5. Venue.

Defendant’s convictions for attempting a burglary, arson, and a murder, were proper where venue was proper in the county where defendant attempted to burn the structure; venue was proper pursuant to U.S. Const. Art. III, § 2 cl. 3, U.S. Const. Amend. VI, and Miss. Const. Art. 3, § 26 because there was nothing conceptually outrageous or bizarre in bringing charges in the county for an attempt to burn a building in that county. Holbrook v. State, 877 So. 2d 525, 2004 Miss. App. LEXIS 23 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 865 (Miss. 2004), cert. denied, 543 U.S. 1166, 125 S. Ct. 1340, 161 L. Ed. 2d 141, 2005 U.S. LEXIS 1746 (U.S. 2005).

Transfer of venue for jury selection purposes based on racial demographics did not violate defendant’s rights to impartial jury or equal protection in prosecution for murder of black leader of civil rights organization, where transferee county had same or similar racial composition as county where defendant was indicted. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Defendant has both federal and state constitutional right to be tried in county where offense was committed. Mississippi Publishers Corp. v. Coleman, 515 So. 2d 1163, 1987 Miss. LEXIS 2900 (Miss. 1987).

6. Public trial.

Court did not violate defendants’ rights to a public trial where defendants escaped from the maximum security unit at Parchman, and both defendants were dangerous, violent, and habitual offenders. As a result of their past criminal convictions, their previous escapes, and the evidence of their willingness to do anything to remain free, the trial court was correct to find a clear and present overriding public interest in safety for the public that justified its consideration of whether to conduct the trial inside the penitentiary. Harper v. State, 887 So. 2d 817, 2004 Miss. App. LEXIS 596 (Miss. Ct. App. 2004).

For purposes of determining whether to unseal defendants’ previously-sealed motions to dismiss indictment and to sever attached exhibits in prosecution for conspiracy to commit murder, in light of qualified First Amendment right of public and press to openness of courtroom and court files, defendants’ rights to fair trial would be impaired if motions and exhibits were unsealed prior to trial; unsealing of motion to dismiss indictment and motion’s exhibits, which contained names and addresses of potential prosecution witnesses, would compromise witnesses’ safety and well-being, partial redaction would not prevent ascertainment of names and addresses, allegations in motion to sever could prejudice jury and might constitute inadmissible evidence, and voir dire to determine possible juror bias would not be workable solution. United States v. Nix, 976 F. Supp. 41 (1997).

Four-step process applies in court’s determination of whether to close criminal court proceeding or to seal court file despite qualified First Amendment right of public and press to openness of courtroom and court files: party seeking to close proceeding or seal file must advance overriding interest that is likely to be prejudiced; closure must be no broader than necessary to protect interest of accused’s right to fair trial; court must consider reasonable alternatives to closing proceeding; and court must make findings adequate to support any closure or sealing. United States v. Nix, 976 F. Supp. 41 (1997).

District court would allow previously-sealed motions of defendants to dismiss indictment and to sever and attached exhibits to remain sealed, but only as long as necessary to protect rights of defendants to fair trial in prosecution for conspiracy to commit murder, in light of qualified First Amendment right of public and press to openness of courtroom and court files; motion to dismiss and its exhibits would be unsealed as soon as prosecution witnesses to which motion and exhibits referred testified, and motion to sever and its exhibits would be unsealed as soon as jury was impaneled and qualified and first prosecution witness had begun to testify. United States v. Nix, 976 F. Supp. 41 (1997).

Criminal processes should be open to public scrutiny, and exceptions can be made only for good cause; however, right to public trial belongs to accused, and no one else. Mississippi Publishers Corp. v. Coleman, 515 So. 2d 1163, 1987 Miss. LEXIS 2900 (Miss. 1987).

Defendant was not denied his right to a public trial by the trial court’s order excluding a spectator who resembled defendant from the courtroom, where the spectator possibly was defendant’s brother and the purpose of the exclusionary order was to preclude confusing state’s witnesses in making an in-court identification of defendant who was seated with other spectators. Isaacks v. State, 350 So. 2d 1340, 1977 Miss. LEXIS 2246 (Miss. 1977).

7. Presence of defendant.

Defendant’s argument on appeal was that there was no personal in-court identification of him as one of the men who participated in the robbery. However, the judge had recessed court for lunch and defendant failed to return to court on his bond, and upon a motion by the State, trial proceeded in his absence; because defendant chose not to return for his trial, he could not complain that he was not personally identified in court, since this was a consequence of his own voluntary act. McCoy v. State, 881 So. 2d 312, 2004 Miss. App. LEXIS 864 (Miss. Ct. App. 2004).

The defendant was not constitutionally entitled to be present while the trial judge qualified the pool of prospective jurors since his presence in the courtroom would not have had a reasonably substantial relation to his opportunity to defend himself. Leffingwell v. State, 747 So. 2d 879, 1999 Miss. App. LEXIS 466 (Miss. Ct. App. 1999).

Neither the Fifth or Sixth Amendment rights of the defendant were violated when the trial court had him removed from the courtroom at the states request during a hearing on a motion for mistrial where the legal issue to be argued concerned a question that had been asked on the stand, but to which he had yet to give an answer. Ludgood v. State, 710 So. 2d 1222, 1998 Miss. App. LEXIS 140 (Miss. Ct. App. 1998).

The trial court in a capital murder prosecution did not err in permitting 3 off-the-record bench conferences and a jury instruction conference to be conducted when the defendant was not present where the defendant was represented by counsel at every critical stage of the proceedings, and he was not prejudiced by his absences at the conferences. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

Although the trial judge did not verbally warn a defendant that he would be removed from the courtroom for disruptive conduct, the defendant received adequate warning that he would be removed for continued disruptive conduct where he was removed after an initial outburst, he was allowed to cool down, and no proceedings were had in his absence. These occurrences amounted to a warning since the defendant was not unaware that his disruptive conduct was the reason for his first removal and that continued disruption would result in a second removal. Bostic v. State, 531 So. 2d 1210, 1988 Miss. LEXIS 484 (Miss. 1988).

8. Bias and prejudice, generally.

In a capital murder case, the prosecution’s use of biblical imagery and references to the victim’s old age and frailty was fair comment and did not constitute prosecutorial misconduct. Dycus v. State, 875 So. 2d 140, 2004 Miss. LEXIS 366 (Miss. 2004), vacated, 544 U.S. 901, 125 S. Ct. 1589, 161 L. Ed. 2d 271, 2005 U.S. LEXIS 2212 (U.S. 2005).

Even if the record clearly showed that a petitioner was in shackles in front of the jury in the sentencing phase of a capital murder trial, there was no merit to the petitioner’s arguments that his Sixth and Fourteenth Amendment rights were violated; the petitioner had already been convicted twice and had already received a death sentence for the murder of one victim, and as a juvenile, he had a history of escaping from authority. Wilcher v. State, 863 So. 2d 719, 2003 Miss. LEXIS 526 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

In defendant’s capital murder case, defendant’s right to a fair trial was not violated by the trial court’s admission of testimony about the sexual assault of the victim, which defendant was not charged with, that occurred in the moments preceding her murder where the sexual molestation was integrally related to her murder such that one could not coherently present the facts of her demise without reference to it, and it described part of the res gestae of the crime charged and helped shed light on defendant’s motive. McGowen v. State, 859 So. 2d 320, 2003 Miss. LEXIS 413 (Miss. 2003).

In capital cases, although there is no error which, standing alone, requires reversal, aggregate effect of various errors may create such an atmosphere of bias, passion, and prejudice that they effectively deny defendant a fundamentally fair trial. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

9. Publicity, generally.

Party seeking closure of courtroom or court file could overcome First Amendment presumption of openness to press and public of court file and defendants’ motions to dismiss indictment and to sever in prosecution for conspiracy, but only if party seeking closure would show, first, that there was substantial probability that defendants’ right to fair trial would be prejudiced by publicity that closure would prevent and, second, that reasonable alternatives to closure could not adequately protect defendants’ fair trial rights. United States v. Nix, 976 F. Supp. 41 (1997).

Incriminating statements which defendant made to journalist did not violate defendant’s Sixth Amendment right to counsel absent a showing that journalist acted on behalf of state in obtaining interview. Wilcher v. State, 697 So. 2d 1123, 1997 Miss. LEXIS 101 (Miss. 1997).

Newspaper publisher who interviewed defendant in prison at defendant’s request was working as private citizen, so that his questioning of defendant did not implicate Sixth Amendment rights, even though interview could not have taken place without cooperation of prison authorities. Wilcher v. State, 697 So. 2d 1123, 1997 Miss. LEXIS 101 (Miss. 1997).

Statements made to private individuals do not implicate Sixth Amendment right to counsel. Wilcher v. State, 697 So. 2d 1123, 1997 Miss. LEXIS 101 (Miss. 1997).

An accused’s right to a fair trial and the press and public’s right of access to criminal proceedings must be balanced when determining whether access to legal proceedings should be restricted. The press and public are entitled to notice and a hearing before a closure order is entered, and any submission in a trial court for closure, either by a party or by the court’s own motion, and be it a letter, written motion, or oral motion, either in chambers or open court, must be docketed, as notice to the press and public, in the court clerk’s office for at least 24 hours before any hearing on such submission, with the usual notice to all parties. The requirement should not be taken to mean that a greater notice period may not be afforded where feasible. Preferably, the submission should be a written motion if time and circumstances allow. A hearing must be held in which the press is allowed to intervene on behalf of the public and present argument, if any, against closure. The movant must be required to advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceedings, and it must make findings adequate to support the closure. In considering the less restrictive alternatives to closure, the court must articulate the alternatives considered and why they were rejected. The court must then make written findings of fact and conclusions of law specific enough that a reviewing court can determine whether the closure order was properly entered. A transcript of the closure hearing should be made public and if a petition for extraordinary relief concerning a closure order is filed in the Supreme Court, it should be accompanied by the transcript, the court’s findings of fact and conclusions of law, and the evidence adduced at the hearing upon which the judge based the findings and conclusions. These requirements cannot be avoided by an agreement between the defendant and the State that proceedings and files should be closed. Gannett River States Pub. Co. v. Hand, 571 So. 2d 941, 1990 Miss. LEXIS 710 (Miss. 1990).

Incriminating statement elicited from capital murder defendant by deputy sheriff in violation of Fifth and Sixth Amendment rights to counsel is inadmissible in sentencing phase of prosecution. Mhoon v. State, 464 So. 2d 77, 1985 Miss. LEXIS 1904 (Miss. 1985), limited, Dotson v. Mississippi (Miss. Ct. App. 1996).

10. Plea bargain.

With regard to defendant’s claim that his attorney had breached a plea agreement made with the prosecution for a five-year sentence for the crime of conspiracy to manufacture methamphetamine, the court found that the negotiated agreement was not withdrawn because of the attorney’s actions or inactions but because of defendant’s felony history and his use of family members in his criminal activities. Sweat v. State, 910 So. 2d 12, 2004 Miss. App. LEXIS 1110 (Miss. Ct. App. 2004), aff'd in part and rev'd in part, 912 So. 2d 458, 2005 Miss. LEXIS 661 (Miss. 2005).

Defendant’s petition to enter a guilty plea and the transcript reflected that he was aware that he would be pleading guilty to the amended charge of attempted possession of precursor chemicals, and that his attorney had gone over both the petition to enter a guilty plea and the amended charge with him. Thus, his assertion that his plea was unintelligent and involuntary was rejected, as was his argument that counsel was ineffective in failing to explain that an “attempted possession” conviction did not carry a lesser sentence. Even if that had been true, defendant received a favorable plea agreement (all but five years suspended), he had admitted guilt and that he understood the nature of the offense, and he failed to show the outcome of a jury trial would have been different. Green v. State, 880 So. 2d 377, 2004 Miss. App. LEXIS 808 (Miss. Ct. App. 2004).

Defendant’s conviction for the sale of cocaine and his enhanced 40 year sentence were both proper where defendant failed to establish the ineffective assistance of his counsel especially because counsel negotiated a plea that defendant refused and the attorney was successful in having the trial court dismiss the portion of the indictment that dealt with the sale being within 1,500 feet of a public park. Easter v. State, 878 So. 2d 10, 2004 Miss. LEXIS 484 (Miss. 2004).

Criminal defendant’s acceptance of prosecutor’s proposed plea bargain does not create constitutional right to have bargain specifically enforced. Mabry v. Johnson, 467 U.S. 504, 104 S. Ct. 2543, 81 L. Ed. 2d 437, 1984 U.S. LEXIS 105 (U.S. 1984), abrogated in part, Puckett v. United States, 556 U.S. 129, 129 S. Ct. 1423, 173 L. Ed. 2d 266, 2009 U.S. LEXIS 2330 (U.S. 2009).

It is impermissible for a trial judge to enhance a sentence because the defendant refused a plea bargain and put the state and court to the trouble of trial by jury. Pearson v. State, 428 So. 2d 1361, 1983 Miss. LEXIS 2505 (Miss. 1983).

11. Mental examination and treatment.

Defendant’s death sentence after he was convicted of capital murder, rape, and four counts of sexual battery was appropriate because the circuit court judiciously provided defendant with state-funded investigative assistance in developing mitigation evidence; an order authorizing a criminal defense investigator (CDI) was granted, followed by an order granting additional funds for the CDI, and an order provided a psychological evaluation of defendant was also granted. Loden v. State, 971 So. 2d 548, 2007 Miss. LEXIS 558 (Miss. 2007), cert. denied, 555 U.S. 831, 129 S. Ct. 45, 172 L. Ed. 2d 51, 2008 U.S. LEXIS 6568 (U.S. 2008).

Experts who rendered diagnosis of “no mental disorder” for low intelligence quotient for capital murder defendant, after being appointed to perform mental examination of him to determine his competency to stand trial, afforded defendant constitutionally adequate evaluation and furnished constitutionally adequate report. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Involuntary treatment of the criminally accused with antipsychotic medication is permissible only where medically appropriate and, considering less intrusive alternatives, essential for safeguarding a compelling state interest. In re the Reinstatement of Turner, 635 So. 2d 894, 1994 Miss. LEXIS 197 (Miss. 1994).

A murder defendant was not denied a fair trial by the denial of his motion for a court-appointed psychologist, in spite of the defendant’s argument that he was thereby prevented from properly presenting his theory of defense related to his state of mind when he was assaulted by the victim, where the State offered no expert testimony regarding the defendant’s state of mind, the defendant did not testify as to his state of mind, and the record did not “even hint at a defense of this nature.” Green v. State, 631 So. 2d 167, 1994 Miss. LEXIS 13 (Miss. 1994).

A defendant was not improperly denied the assistance of an independent privately employed psychiatrist in violation of his Sixth, Eighth and Fourteenth Amendment rights where the defendant requested and received a psychiatric examination and evaluation to determine his mental condition, resulting in the unanimous determination of 5 medical professionals that the defendant was sane at the time of the charged offense and was competent to aid in his defense. Lanier v. State, 533 So. 2d 473, 1988 Miss. LEXIS 523 (Miss. 1988).

Neither the United States Constitution nor the Mississippi Constitution requires that the nation or state furnish an indigent defendant with the assistance of a psychiatrist to examine the defendant and advise with his court appointed counsel in the preparation of his defense. Phillips v. State, 197 So. 2d 241, 1967 Miss. LEXIS 1520 (Miss. 1967), cert. denied, 389 U.S. 1050, 88 S. Ct. 791, 19 L. Ed. 2d 844, 1968 U.S. LEXIS 2829 (U.S. 1968).

12. Guilty plea, generally.

Dismissal of the inmate’s motion for post-conviction relief was proper because there were no Sixth Amendment jury issues since he pled guilty and never asserted his right to a jury trial. Smith v. State, 933 So. 2d 1008, 2006 Miss. App. LEXIS 535 (Miss. Ct. App. 2006).

Defendants’ constitutional rights under U.S. Const. Amend. VI, Miss. Const. Art. 3, § 26 were not violated when the trial court admitted their confessions at trial because the statements given by one defendant did not implicate the others, and defendants did not move for severance. Harris v. State, 2003 Miss. LEXIS 80 (Miss. Feb. 20, 2003), op. withdrawn, sub. op., 861 So. 2d 1003, 2003 Miss. LEXIS 872 (Miss. 2003).

Defendant’s entry of a plea of guilty acted as a waiver of any speedy trial claim, whether based on statutory or constitutional grounds. Davidson v. State, 850 So. 2d 158, 2003 Miss. App. LEXIS 493 (Miss. Ct. App. 2003).

Trial court’s failure to advise defendant of maximum and minimum sentences when defendant pled guilty did not implicate fundamental constitutional right sufficient to except post-conviction case from procedural bar created by defendant’s failure to file petition within 3 years of guilty plea. Bevill v. State, 669 So. 2d 14, 1996 Miss. LEXIS 70 (Miss. 1996).

A defendant’s claim that he blindly entered a plea of guilty because his attorney told him that his mother advised him to do so was not sufficient to render his plea involuntary. Smith v. State, 636 So. 2d 1220, 1994 Miss. LEXIS 54 (Miss. 1994).

A plea is voluntary if not induced by fear, violence, deception or improper inducements. Smith v. State, 636 So. 2d 1220, 1994 Miss. LEXIS 54 (Miss. 1994).

A trial court’s failure to inform a defendant of the mandatory minimum sentence for the crime charged did not render the defendant’s guilty plea involuntary where no misrepresentation as to the mandatory minimum sentence was made to the defendant, he did not expect to receive the mandatory minimum sentence, he did not claim that there was a misrepresentation of the sentence which he was to receive, he was fully apprised and understood the consequences of the sentence the State intended to recommend, and he did not allege that the failure to be informed of the minimum sentence induced him to enter his guilty plea. Smith v. State, 636 So. 2d 1220, 1994 Miss. LEXIS 54 (Miss. 1994).

The constitutional standard for voluntariness of a guilty plea does not mention knowledge of the mandatory minimum sentence as an essential element; instead, it merely states that the accused should understand the effects of a guilty plea. Smith v. State, 636 So. 2d 1220, 1994 Miss. LEXIS 54 (Miss. 1994).

A plea of guilty constitutes a waiver of some of the most basic rights of free Americans, those secured by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, as well as those comparable rights secured by Mississippi Const, Art 3, §§ 14 and 26. Sanders v. State, 440 So. 2d 278, 1983 Miss. LEXIS 2905 (Miss. 1983).

13. Argument of counsel.

Trial court did not unconstitutionally limit closing argument at guilt phase of capital murder case by denying defendant full 5 minutes of additional time requested after original 60 minutes had expired; 60-minute period had been requested by defendant’s counsel, and after 5 minute extension request was refused counsel was allowed to place remaining 4 minutes into record, and case was not so complex as to require more time. Walker v. State, 671 So. 2d 581, 1995 Miss. LEXIS 494 (Miss. 1995), cert. denied, 519 U.S. 1011, 117 S. Ct. 518, 136 L. Ed. 2d 406, 1996 U.S. LEXIS 7236 (U.S. 1996).

A prosecutor’s biblical references during closing argument at the sentencing phase of a capital murder prosecution did not deprive the defendant of a fair trial, as the comments were within the “broad latitude” afforded counsel in closing argument. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

A trial court’s limitation of closing argument to 15 minutes in the sentencing phase of a capital murder prosecution did not violate the defendant’s constitutional right to a fair trial where the defendant made no proffer as to what he would have argued had he been given additional time, and he raised no objection to the time limit at the time of trial. Conner v. State, 632 So. 2d 1239, 1993 Miss. LEXIS 541 (Miss. 1993), cert. denied, 513 U.S. 927, 115 S. Ct. 314, 130 L. Ed. 2d 276, 1994 U.S. LEXIS 7088 (U.S. 1994), overruled, Weatherspoon v. State, 732 So. 2d 158, 1999 Miss. LEXIS 4 (Miss. 1999).

14. Instructions.

Because the jury was instructed on all the elements of capital murder, defendant was not deprived of the constitutional rights to a fair trial and to a jury determination of every element of the crime charged when defendant was convicted under the one continuous transaction doctrine of capital murder with the underlying felony of robbery. Batiste v. State, 121 So.3d 808, 2013 Miss. LEXIS 295 (Miss. 2013), cert. denied, 572 U.S. 1117, 134 S. Ct. 2287, 189 L. Ed. 2d 178, 2014 U.S. LEXIS 3424 (U.S. 2014).

It was improper to convict defendant of using her mother’s money without her consent in violation of the Mississippi Vulnerable Adults Act of 1986, Miss. Code Ann. §43-47-19 because although the indictment sufficiently informed defendant of the crime and the conduct the grand jury believed constituted the crime, the trial court erroneously issued a jury instruction that materially conflicted with the indictment’s language; the wording of the indictment suggested that the grand jury believed defendant’s use of the money was improper only if the money was used without the mother’s consent, but at trial, the State produced no evidence that defendant had used her mother’s money without her consent, and several witnesses testified that she, in fact, had obtained her mother’s consent. Decker v. State, 2011 Miss. LEXIS 296 (Miss. June 16, 2011), op. withdrawn, 2011 Miss. LEXIS 324 (Miss. June 30, 2011).

15. Instructions curative of error.

Jury was not improperly instructed because a prosecutor did not comment on defendant’s failure to testify, so no curative instruction was required. Young v. State, 236 So.3d 49, 2017 Miss. LEXIS 439 (Miss. 2017).

Defendant’s convictions for kidnapping and sexual battery were proper where his argument that counsel was ineffective because the jury was improperly instructed on the issue of whether or not the sexual act was consensual was without merit because a prerequisite to finding defendant guilty of sexual battery was to determine that the sexual act between him and the victim was without the victim’s consent. As the jury determined that defendant was indeed guilty of sexual battery, inherently the jury had to determine that the sexual act took place without the victim’s consent. Winding v. State, 908 So. 2d 163, 2005 Miss. App. LEXIS 332 (Miss. Ct. App. 2005).

Mistrial was not required in capital murder case after victim’s grandmother “became emotional” when asked to look at pictures identifying victim during guilt phase; defendant had not made contemporary objection, thus precluding court from giving curative instruction which jury would have presumably followed, and as incident occurred after defendant had been officially found guilty he could not be heard to complain about an emotional state which he had brought on through his own actions. Walker v. State, 671 So. 2d 581, 1995 Miss. LEXIS 494 (Miss. 1995), cert. denied, 519 U.S. 1011, 117 S. Ct. 518, 136 L. Ed. 2d 406, 1996 U.S. LEXIS 7236 (U.S. 1996).

In the sentencing phase of a capital murder prosecution, the trial court did not unconstitutionally limit consideration of emotional disturbance mitigation evidence to “extreme” emotional disturbance by submitting an instruction on “extreme mental or emotional disturbance” where the instructions on mitigating factors, when read as a whole, provided ample opportunity for the jury to give consideration to any emotional disturbance the defendant may have suffered. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

16. Verdict.

In imposing a sentence of death in a capital murder case, the fact that the jury’s specific written findings supporting its verdict were “parroted” from the sentencing forms did not render the verdict ambiguous in violation of the 6th and 14th Amendments to the United States Constitution and Article 3, § 24 of the Mississippi Constitution. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

17. Sentence and punishment, generally.

Supreme court declined to find that the admission of an affidavit during defendant’s habitual offender hearing was plain error because the Confrontation Clause did not apply to sentencing proceedings, and defendant did not raise the issue on appeal. Conner v. State, 138 So.3d 143, 2014 Miss. LEXIS 246 (Miss. 2014).

In a case involving the sale of cocaine, defendant’s rights under Miss. Const. Art. 3, §§ 14, 26, 28 and U.S. Const. Amends. 5, 6, 8, and 14 were not violated by the maximum 30-year sentence; the sentence imposed was within the statutory limitation and was within the sound discretion of the trial judge. Johnson v. State, 950 So. 2d 178, 2007 Miss. LEXIS 125 (Miss. 2007).

Petitioner’s argument that the capital sentencing statute, Miss. Code Ann. §99-19-101, did not permit waiver of a jury for sentencing purposes was without merit because although §99-19-101 provided for sentencing only by a jury in capital cases, § 99-19-101 specifically provided that a jury could be waived by a defendant in writing. Also, the record showed that petitioner’s waiver was knowingly and intelligently made because she was advised as to the sentencing options available to a jury, or a judge sitting without a jury, after her capital murder conviction, and she signed a waiver stating that she understood that she could be sentenced in the discretion of the trial judge to death, life imprisonment without eligibility for parole, or life imprisonment as provided in §99-19-101(1). Byrom v. State, 927 So. 2d 709, 2006 Miss. LEXIS 43 (Miss.), cert. denied, 549 U.S. 1056, 127 S. Ct. 662, 166 L. Ed. 2d 520, 2006 U.S. LEXIS 9076 (U.S. 2006).

Mississippi’s capital sentencing scheme complies with the Sixth Amendment requirement that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt, because under Miss. Code Ann. §99-19-101 it is the jury that determines the presence of aggravating circumstances necessary for the imposition of the death sentence. Berry v. State, 882 So. 2d 157, 2004 Miss. LEXIS 802 (Miss. 2004), cert. denied, 544 U.S. 950, 125 S. Ct. 1694, 161 L. Ed. 2d 528, 2005 U.S. LEXIS 2822 (U.S. 2005).

The defendant’s 25 year sentence fell within the guidelines of §97-3-79, was not excessive, and did not violate his Sixth and Fourteenth amendment rights, notwithstanding the defendant’s assertion that he was merely an accessory after the fact, where the trial judge found no reason to suspend any of the sentence the defendant had a previous conviction of burglary of an occupied dwelling. Lawson v. State, 748 So. 2d 96, 1999 Miss. LEXIS 289 (Miss. 1999).

Trial court is prohibited from imposing heavier sentence upon defendant because he has exercised his constitutional right to trial by jury than sentence offered defendant in plea bargaining process. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

Imposition by trial court of heavier sentence than that which was offered in plea bargaining process is not abuse of discretion and violates no right of defendant where lenient sentence is proposed in pre-trial plea bargain negotiations, where after rejecting same defendant is found guilty by jury, where before imposition of sentence trial judge is presented with evidence of aggravating circumstances relevant to sentencing not known to him at time of original plea bargain negotiations, where in fact trial judge imposes heavier sentence than was proposed at time of plea bargain and in fact bases imposition of heavier sentence upon information of aggravating circumstances of which he has been newly made aware, and where heavier sentence has not been imposed upon accused in whole or in part as penalty for his exercise of his constitutional right to trial by jury. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

Sentence of life imprisonment for crime of capital rape was appropriate for defendant convicted of raping 6-year-old child, despite fact that defendant had been offered 5-year sentence during plea negotiations prior to trial; court was not involved in plea negotiations, did not impose heavier sentence merely because defendant exercised his constitutional right to jury trial, and merely followed statutory sentencing dictates. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

A trial court’s failure to inform a defendant, who pled guilty to possession of cocaine with intent to distribute, that a $1,000.00 fine was the minimum penalty for the crime was harmless error where the record contained the defendant’s written waiver of indictment, his petition to enter a plea of guilty, and a 12-page transcript of the circuit judge’s interrogation of the defendant before accepting the plea. Eley v. State, 631 So. 2d 787, 1994 Miss. LEXIS 79 (Miss. 1994).

18. Speedy trial – In general.

Based on its analysis under the Barker factors on the facts of this case, the appellate court found that defendant was not denied the right to a speedy trial. Springer v. State, 187 So.3d 1050, 2015 Miss. App. LEXIS 589 (Miss. Ct. App. 2015).

Defendant’s right to a speedy trial was not violated because although defendant eventually asserted his right to a speedy trial, he continued to take steps that were inconsistent with his claim that he was ready for trial; defendant waited almost eight months to assert his right, and after asserting his right to a speedy trial, defendant effectively undermined his request by seeking the recusal of the trial judge and filing numerous pretrial motions. Newell v. State, 175 So.3d 1260, 2015 Miss. LEXIS 505 (Miss. 2015).

Defendant’s right to a speedy trial was not violated, as approximately 197 days elapsed between defendant’s arrest and trial, a number well below the statutory limit of 270 days, and the greatest part of the “delay” between the commission of the felony and trial was directly and solely the consequence of defendant’s flight; therefore, defendant’s counsel was not ineffective for failing to file a motion to dismiss on speedy trial grounds. Jackson v. State, 864 So. 2d 1047, 2004 Miss. App. LEXIS 66 (Miss. Ct. App. 2004).

In an escape case, defendant was not denied his constitutional or statutory right to a speedy trial, because 899 of the 991 days that elapsed between the escape and the trial were attributable to defendant, and defendant suffered no prejudice as a result of the delay. Jenkins v. State, 881 So. 2d 870, 2003 Miss. App. LEXIS 1133 (Miss. Ct. App. 2003), aff'd in part and rev'd in part, 888 So. 2d 1171, 2004 Miss. LEXIS 1268 (Miss. 2004).

Defendant’s speedy trial claim failed; though 410 days elapsed before he was again brought to trial after the conviction was reversed, most of the delay was chargeable to him, since he had obtained three continuances, and he failed to show prejudice from the delay chargeable to the State. Robinson v. State, 858 So. 2d 887, 2003 Miss. App. LEXIS 903 (Miss. Ct. App. 2003).

The Sixth Amendment speedy trial right applies only to time periods when a person is either under indictment or under arrest; therefore, such right did not apply to a more than 20 year period from the entry of a nolle prosequi on an indictment for murder until the subsequent reindictment of the defendant. Beckwith v. Anderson, 89 F. Supp. 2d 788, 2000 U.S. Dist. LEXIS 2238 (S.D. Miss. 2000).

An 838 day delay between arrest and trial was sufficient to trigger the Barker balancing test and require an examination of the other factors. DeLoach v. State, 722 So. 2d 512, 1998 Miss. LEXIS 510 (Miss. 1998).

While defendant may have some responsibility to assert speedy trial claim, primary burden is on courts and prosecutors to assure that they bring cases to trial. Simmons v. State, 678 So. 2d 683, 1996 Miss. LEXIS 285 (Miss. 1996).

Defendant’s right to speedy trial is guaranteed by Sixth and Fourteenth Amendments to the United States Constitution as well as by Article 3, section 26 of the Mississippi Constitution. Skaggs v. State, 676 So. 2d 897, 1996 Miss. LEXIS 317 (Miss. 1996).

Prosecution may not circumvent accused’s demand for speedy trial by seeking new indictment for same offense and then proceeding upon new indictment. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Bad motive on part of prosecution significantly affects balancing test in speedy trial analysis. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

State bears burden of bringing accused to trial in speedy fashion. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

19. –Administrative proceedings, speedy trial.

Since attorney disciplinary proceedings are not criminal in nature, the complaint tribunal erred in applying the factors set forth. The Mississippi Bar v. An Attorney, 636 So. 2d 371, 1994 Miss. LEXIS 111 (Miss. 1994).

20. –Statutory right to speedy trial.

Constitutional right to speedy trial exists separately from the statutory right. Simmons v. State, 678 So. 2d 683, 1996 Miss. LEXIS 285 (Miss. 1996).

Although long delays between the time of arrest and arraignment have the potential to violate the defendant’s constitutional right to a speedy trial even if the 270 day mandate of §99-17-1 has been met, the State’s compliance with §99-17-1 would be viewed as significant when determining whether the defendant’s constitutional right to a speedy trial had been violated. Spencer v. State, 592 So. 2d 1382, 1991 Miss. LEXIS 965 (Miss. 1991).

A defendant’s statutory right to a speedy trial was not violated, even though 338 days elapsed between the defendant’s original arraignment and the first day of his trial, where the defendant was granted a 63-day continuance during that time, and the case was continued for 37 days due to a congested docket. Additionally, the defendant’s constitutional right to a speedy trial was not violated, even though 456 days elapsed between the time the defendant was arrested and the first day of his trial, where a significant part of the delay was attributable to the defendant, the balance of the delay was attributable to mere negligence and court congestion, and the defendant failed to assert his right to a speedy trial until the day the trial was scheduled. Adams v. State, 583 So. 2d 165, 1991 Miss. LEXIS 384 (Miss. 1991).

A defendant’s statutory right to a speedy trial under §99-17-1 was not violated, even though his trial occurred 460 days after his arrest, where the trial occurred only one day after his arraignment. Additionally, the defendant’s constitutional right to a speedy trial was not violated where the defendant moved for 2 continuances during the period between the indictment and the trial which resulted in 181 days of time lost, much of the remaining delay could be attributed to 5 changes in the defendant’s attorney, the delay was for good cause to allow his counsel sufficient time to prepare for trial, there were no deliberate attempts by the State to cause a delay to hamper the defendant’s ability to prepare a defense, and there was no showing of prejudice to the defendant. Wiley v. State, 582 So. 2d 1008, 1991 Miss. LEXIS 364 (Miss. 1991).

For constitutional purposes, the right to a speedy trial attaches and time begins to run with arrest. The statutory right to a speedy trial set forth in §99-17-1 attaches with arraignment; calculation of statutory time requires exclusion of the date of arraignment and inclusion of the date of trial and weekends, unless the last day of the 270-day period falls on Sunday. Any delays in prosecution attributable to a defendant under either the constitutional or statutory scheme tolls the running of time. Any continuances for “good cause” will toll the running of time unless “the record is silent regarding the reason for delay,” in which case “the clock ticks against the State because the State bears the risk of non-persuasion on the good cause issue.” The statutory 270-day rule is satisfied once the defendant is brought to trial, even if that trial results in a mistrial. Handley v. State, 574 So. 2d 671, 1990 Miss. LEXIS 857 (Miss. 1990), op. withdrawn, sub. op., 1991 Miss. LEXIS 235 (Miss. Apr. 16, 1991).

Compliance with §99-17-1 does not necessarily mean that a defendant’s constitutional right to a speedy trial has been respected. Smith v. State, 550 So. 2d 406, 1989 Miss. LEXIS 455 (Miss. 1989).

A defendant’s right to a speedy trial was not violated since the §99-17-1 270-day period was tolled from the time of the first continuance which was granted on the defendant’s motion, until the date of the end of the second continuance in which the defense counsel actively participated. Arnett v. State, 532 So. 2d 1003, 1988 Miss. LEXIS 457 (Miss. 1988).

Section 99-17-1 requires only that indictments be tried within 270 days of arraignment, and, where the first trial results in a mistrial, the statute is not applicable to require that the retrial take place within 270 days of the first trial. Kinzey v. State, 498 So. 2d 814, 1986 Miss. LEXIS 2849 (Miss. 1986).

Delay of almost 10 months in bringing parolee arrested on burglary charges to trial following parolee’s demand for speedy trial does not deny parolee speedy trial rights under §99-17-1 where only 47 days elapse from arraignment to trial but does violate constitutional speedy trial right where delay has been caused by state and parolee, whose parole has been revoked as result of arrest, is prejudiced by being ineligible for parole and disqualified from participating in rehabilitation programs because of detainer filed in connection with burglary arrest, and by being unable to properly locate witnesses to substantiate defense that someone else stole car and performed burglary. Bailey v. State, 463 So. 2d 1059, 1985 Miss. LEXIS 1875 (Miss. 1985).

21. – Time right accrues, speedy trial.

The time period over which the defendant’s Sixth Amendment protection extended was the period from his second mistrial in 1964 through the entry of the nolle prosequi in 1969, a period of almost five years, rather than from his second mistrial in 1964 through his reindictment in 1990, a period of over 26 years. Beckwith v. Anderson, 89 F. Supp. 2d 788, 2000 U.S. Dist. LEXIS 7033 (S.D. Miss. 2000).

An unserved arrest warrant, issued because a statutorily empowered magistrate determines that probable cause for the arrest exists, does not formally initiate criminal proceedings or create other effects on a person’s liberty interests; therefore, the period of delay in a defendant’s trial is not measured from the issuance of an arrest warrant. Stokes v. State, 758 So. 2d 452, 2000 Miss. App. LEXIS 132 (Miss. Ct. App. 2000).

An increase in restrictions of incarceration is not the equivalent of an “arrest” for speedy trial rules; therefore, the period of delay in a defendant’s trial is not measured from the occurrence of such an event. Stokes v. State, 758 So. 2d 452, 2000 Miss. App. LEXIS 132 (Miss. Ct. App. 2000).

The defendant’s constitutional right to a speedy trial did not attach when he was taken into custody for violating his appeal bond, but at the later date on which he was indicted for possession of a deadly weapon as a convicted felon. Coleman v. State, 725 So. 2d 154, 1998 Miss. LEXIS 377 (Miss. 1998).

Defendant’s speedy trial rights under Sixth Amendment attach when he is arrested, and such rights continue until defendant is convicted, acquitted or formal entry is made on record of his case that he is no longer under indictment. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Defendant’s constitutional right to speedy trial attaches at time of arrest. Simmons v. State, 678 So. 2d 683, 1996 Miss. LEXIS 285 (Miss. 1996); Skaggs v. State, 676 So. 2d 897, 1996 Miss. LEXIS 317 (Miss. 1996); Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

Constitutional right to speedy trial attaches when person is effectively accused of a crime. Skaggs v. State, 676 So. 2d 897, 1996 Miss. LEXIS 317 (Miss. 1996).

Constitutional right to speedy trial attaches at time of accused’s arrest, indictment, or information. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

In determining whether defendant’s claim of constitutional speedy trial violation is justified, date of defendant’s arrest is date right to speedy trial attaches. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

The constitutional right to a speedy trial attaches when a person has been accused. Smith v. State, 550 So. 2d 406, 1989 Miss. LEXIS 455 (Miss. 1989).

The speedy trial clock begins to tick from the moment the defendant is effectively accused of the offense. In cases not involving a detainer lodged against a defendant already incarcerated, this means the time of indictment. Fisher v. State, 532 So. 2d 992, 1988 Miss. LEXIS 438 (Miss. 1988).

The right to a speedy trial applies only after a person has been accused and, under some circumstances, one becomes an “accused” when arrested. Lightsey v. State, 493 So. 2d 375, 1986 Miss. LEXIS 2583 (Miss. 1986).

Speedy trial right is inapplicable to time during which defendants are neither under indictment nor subject to restraint, and inapplicable to delays occasioned by interlocutory appeals. United States v. Loud Hawk, 474 U.S. 302, 106 S. Ct. 648, 88 L. Ed. 2d 640, 1986 U.S. LEXIS 42 (U.S. 1986).

A 28-day delay in taking a defendant before a magistrate for a preliminary hearing did not deprive him of his right to a speedy trial under § 26 of the Mississippi Constitution or the Sixth Amendment of the Federal Constitution, and such a delay without prejudice is not sufficient to require a reversal of his conviction. McLelland v. State, 204 So. 2d 158, 1967 Miss. LEXIS 1180 (Miss. 1967).

Although assuming, but not deciding, that an unexplained three-and-one-half day delay in affording a defendant to preliminary hearing to be undue delay, there is no authority to the effect that such delay entitled the defendant to an outright discharge on the charge of armed robbery. Dunning v. State, 251 Miss. 766, 171 So. 2d 315, 1965 Miss. LEXIS 900 (Miss. 1965), cert. denied, 386 U.S. 993, 87 S. Ct. 1310, 18 L. Ed. 2d 339, 1967 U.S. LEXIS 1872 (U.S. 1967).

22. –Tests, speedy trial.

Defendant’s right to a speedy trial under the Sixth Amendment and Miss. Const. Art. 3, § 26 was not violated because the prejudice was minimal since the fading memories of potential, unnamed witnesses did not impair defense. Ben v. State, 95 So.3d 1236, 2012 Miss. LEXIS 411 (Miss. 2012), cert. denied, 569 U.S. 905, 133 S. Ct. 1723, 185 L. Ed. 2d 788, 2013 U.S. LEXIS 2589 (U.S. 2013).

In a statutory rape case, defendant’s Sixth Amendment right to a speedy trial was not violated under the totality of the circumstances after four factors were analyzed, despite the fact that the length of the delay and the reason for the delay weighed in favor of defendant; the assertion of the right and the prejudice factors weighed in favor of the State. Price v. State, 898 So. 2d 641, 2005 Miss. LEXIS 127 (Miss. 2005).

Defendant was not deprived of his constitutional right to a speedy trial as (1) although the delay was presumptively prejudicial, (2) the 182 days granted for continuances were for good cause including the judge’s illness and plea negotiations, (3) defendant never asserted a right to a speedy trial by filing a motion, and (4) there were no assertions of prejudice. Mayo v. State, 886 So. 2d 734, 2004 Miss. App. LEXIS 430 (Miss. Ct. App.), cert. denied, 887 So. 2d 183, 2004 Miss. LEXIS 1383 (Miss. 2004).

Defendant failed to establish that the constitutional right to a speedy trial was violated, as though the length of time was presumptively prejudicial, most of the delays were attributed to defendant or his counsel, defendant failed to show that he had failed to demand his right to a speedy trial until shortly before the trial began, and he was not prejudiced by the delay as emotional stress caused by the delay did not constitute prejudice. Wesley v. State, 872 So. 2d 763, 2004 Miss. App. LEXIS 433 (Miss. Ct. App. 2004).

Under balancing test to determine whether defendant’s constitutional right to speedy trial has been violated, no one factor alone is dispositive, and the factors must be considered individually, assessed both objectively and dispassionately, then weighed and balanced together. Simmons v. State, 678 So. 2d 683, 1996 Miss. LEXIS 285 (Miss. 1996).

Under case law, four factors must be considered before one can determine if right to speedy trial has been denied: length of delay; reason for delay; defendant’s assertion of his right to speedy trial; and prejudice resulting to defendant. Sanders v. State, 678 So. 2d 663, 1996 Miss. LEXIS 300 (Miss. 1996).

Factors to be examined in determining whether constitutional right to speedy trial has been violated include length of delay, reason for delay, assertion of right to speedy trial, and prejudice to defendant from the delay; no single factor is dispositive. Skaggs v. State, 676 So. 2d 897, 1996 Miss. LEXIS 317 (Miss. 1996).

Factors to be considered in determining whether defendant’s right to speedy trial was violated are length of delay, reason for delay, defendant’s assertion of right to speedy trial, and prejudice to defendant resulting from delay. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Analysis of whether defendant was deprived of right to speedy trial must turn on facts of particular case, quality of evidence available on each factor, and, in absence of evidence, identification of party with risk of non-persuasion; no sole factor is dispositive. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Once constitutional right to speedy trial has attached, the Supreme Court, in determining whether right has been denied, must examine length of delay, reason for delay, defendant’s assertion of right to speedy trial, and prejudice resulting to defendant from delay, in light of all circumstances, including conduct of prosecution and accused. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

Court must balance four factors in determining whether defendant’s claim of constitutional speedy trial violation is justified: length of delay, reason for delay; whether defendant has timely asserted right to speedy trial and whether defendant has been prejudiced by delay. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

In determining whether defendant’s claim of constitutional speedy trial violation is justified, no single factor is dispositive, but court must consider totality of circumstances, including any additional relevant circumstances beyond 4 enumerated factors, in making that determination. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

For purpose of constitutional speedy trial analysis, as period of delay between defendant’s arrest and trial increases, importance of delay factor also increases. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

For purpose of constitutional speedy trial analysis, where delay between arrest and trial is not long enough to be considered presumptively prejudicial, court does not need to examine remaining factors used to determine whether constitutional speedy trial violation has occurred. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

Balance is struck in favor of rejecting defendant’s speedy trial claim if delay is neither intentional nor egregiously protracted, and where there is complete absence of actual prejudice. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

The balancing test used in criminal proceedings for determining whether the right to a speedy trial has been violated is not applicable in an attorney disciplinary action; although attorney disciplinary proceedings are quasi-criminal in nature, they are not governed by the same rules that are utilized in criminal proceedings. Barrett v. The Mississippi Bar, 648 So. 2d 1154, 1995 Miss. LEXIS 27 (Miss. 1995).

In a constitutional speedy trial analysis, prejudice to the defendant may take several forms: (1) delay may prejudice the outcome of the defendant’s case; (2) prejudice may take the form of harm to the defendant’s personal interests, such as the debilitating effect of delay on the defendant’s financial, societal, and emotional circumstances; and (3) lengthy pretrial incarceration may be unnecessarily oppressive and may pose societal disadvantages, though a defendant’s assertion of prejudice attributable solely to incarceration, with no other harm, typically is not sufficient to warrant reversal. Ross v. State, 605 So. 2d 17, 1992 Miss. LEXIS 419 (Miss. 1992).

When the constitutional right to a speedy trial attaches, the court, in order to determine whether the defendant’s right has been denied, will examine 4 factors: (1) length of delay, (2) reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) prejudice resulting to defendant because of the delay. All 4 factors must be considered together, and no individual factor may completely dispose of the issue. Lightsey v. State, 493 So. 2d 375, 1986 Miss. LEXIS 2583 (Miss. 1986).

23. –Tolling of time, speedy trial.

Over four years expired between defendant’s arrest and trial for murder, but defendant was out on bond after the first year, made no demand for a speedy trial, failed to show any prejudice to the defense, or that the State intentionally delayed the investigation in its search for critical eyewitnesses and other evidence. Defendant’s right to a speedy trial was not violated under the Sixth and Fourteenth Amendments to the United States Constitution, or Miss. Const. art. III, § 26. Moore v. State, 837 So. 2d 794, 2003 Miss. App. LEXIS 81 (Miss. Ct. App. 2003).

Trial court did not err in denying petitioner’s motion for post-conviction relief where he failed to prove his assertions that he was denied his right to a speedy trial and that he received ineffective assistance from counsel; there was no evidence in the record of the starting date of petitioner’s incarceration, but the record showed that 89 days elapsed between indictment and trial which the appellate court found was quite reasonable. Hill v. State, 827 So. 2d 743, 2002 Miss. App. LEXIS 532 (Miss. Ct. App. 2002).

Under speedy trial analysis, any delays which are attributable to accused toll the running of the clock; however, time of delay is assessed against state if state fails to show good cause for such delay. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

Constitutional speedy trial clock is tolled for period of time attributable to delay caused by defendant; period of delay attributable to defendant is subtracted from total days of delay. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

Any defendant-prompted delay, regard-less of merit, tolls the constitutional speedy trial clock; the speedy trial remedy is meant to address the harm visited on the defendant because of the State’s delay in bringing the defendant to trial. Ross v. State, 605 So. 2d 17, 1992 Miss. LEXIS 419 (Miss. 1992).

24. –Complexity of case, speedy trial.

A defendant’s constitutional right to a speedy trial was not violated, even though the length of the delay was 281 days and was therefore presumptively prejudicial, where the case involved 9 counts of burglary and one count of conspiracy and was therefore a “complex, serious” case rather than an “ordinary street crime,” the delay appeared to be reasonable and not unduly lengthy, and the defendant failed to substantiate his claim of prejudice resulting from the delay. Jackson v. State, 614 So. 2d 965, 1993 Miss. LEXIS 75 (Miss. 1993).

25. – Delay attributable to defendant, speedy trial.

Defendant’s constitutional right to a speedy trial was not violated because, although the delay of approximately five years and two months was presumptively prejudicial, the vast majority of the delay was attributable to continuances generated by the defense; of the approximately five-year delay between defendant’s arrest and his trial, 339 days were attributable to the State, and 1,548 days were attributable to defendant; and defendant was not prejudiced by the delay as any anxiety or stress that defendant experienced due to the delay was outweighed by the fact that his defense was assisted, not hindered, by the delay. Perry v. State, 233 So.3d 750, 2017 Miss. LEXIS 224 (Miss. 2017).

While the 1,099 days between defendant’s indictment and trial was presumptively prejudicial, defendant’s right to a speedy trial was not violated, as most of the delay resulted from the substantial amount of time it took to schedule and prepare a mental evaluation for the defense and defendant was not prejudiced by the delay. Rowsey v. State, 188 So.3d 486, 2015 Miss. LEXIS 573 (Miss. 2015).

Defendant was not denied his Sixth Amendment right to a speedy trial because not a single Barker factor weighed in defendant’s favor, and one, reason for the delay, weighed heavily against him; although the delay in bringing defendant to trial was more than three times the presumptively prejudicial eight-month mark, of the 833 total days between indictment and trial, 701 days were attributable to defendant. Hardison v. State, 94 So.3d 1092, 2012 Miss. LEXIS 383 (Miss. 2012).

Defendant was not denied his Sixth Amendment right to a speedy trial because not a single Barker factor weighed in defendant’s favor, and one, reason for the delay, weighed heavily against him; although the delay in bringing defendant to trial was more than three times the presumptively prejudicial eight-month mark, of the 833 total days between indictment and trial, 701 days were attributable to defendant. Hardison v. State, 94 So.3d 1092, 2012 Miss. LEXIS 383 (Miss. 2012).

By pleading guilty, an inmate had waived his constitutional right to a speedy trial. Moreover, delays which were attributable to a defendant did not count toward the 270-day requirement under Miss. Code Ann. §99-17-1, and Miss. Code Ann. §99-1-5 provided that prosecution for an offense was not barred when process could not be served; here, the reason for any delay in sentencing was that there was a significant period of time in which the trial court was unable to serve the inmate with his indictment. Edmondson v. State, 17 So.3d 591, 2009 Miss. App. LEXIS 525 (Miss. Ct. App. 2009).

Defendant’s constitutional right to a speedy trial was not violated where the state established good cause for the trial delay; any delay that defendant suffered was caused by defendant’s criminal actions in Indiana, being incarcerated in another state, and the extradition process. Hall v. State, 984 So. 2d 278, 2007 Miss. App. LEXIS 686 (Miss. Ct. App. 2007), cert. denied, 984 So. 2d 277, 2008 Miss. LEXIS 288 (Miss. 2008).

Where defendant was tried 538 days after arraignment, and 264 days of the delay could be attributed against the State, there was no statutory violation under the guidelines set forth in Miss. Code Ann. §99-17-1. Further, the delay could be attributed to continuances requested upon the motion of defendant’s attorneys, substitution of counsel, plea negotiations, ongoing discovery, and potentially the trial date being lost due to a crowded docket, and applying the balancing test to the four factors listed in Barker, and the conduct of the State and defendant, defendant’s constitutional right to a speedy trial was not denied. Summers v. State, 914 So. 2d 245, 2005 Miss. App. LEXIS 476 (Miss. Ct. App. 2005).

Defendant was arrested on July 5, 2000, indicted one year later, and his trial commenced on April 2, 2002; because defendant was released on bond shortly after his indictment there was no oppressive pretrial detention after he was indicted. Further, at least part of the delay to trial, following his indictment, was attributable to the two continuances granted at defendant’s request; thus, there was no merit to defendant’s denial of a speedy trial claim as to the period of time following his indictment. Young v. State, 891 So. 2d 813, 2005 Miss. LEXIS 40 (Miss. 2005).

Although the time between defendant’s arrest and his trial for attempted kidnapping was substantial, a portion of the delay was excluded from the “270 day rule” provided in Miss. Code Ann. §99-17-1 as being attributable to defendant and he failed to show how his case was prejudiced by the delay in that he did not show that his pretrial incarceration was oppressive, that he suffered anxiety, or that his defense was impaired. Therefore defendant’s right to a speedy trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Miss. Const. art. 3, § 26 was not violated. Hersick v. State, 904 So. 2d 116, 2004 Miss. LEXIS 1351 (Miss. 2004).

Defendant was released on bond shortly after his indictment; there was no oppressive pretrial detention after he was indicted; additionally, at least part of the delay prior to trial, following defendant’s indictment, was attributable to the two continuances granted at defendant’s request. Therefore, there was no merit to defendant’s denial of a speedy trial claim as to the period of time following his indictment. Young v. State, 2004 Miss. LEXIS 588 (Miss. May 27, 2004), op. withdrawn, sub. op., 891 So. 2d 813, 2005 Miss. LEXIS 40 (Miss. 2005).

Defendant was not deprived of her right to a speedy trial where she was brought to trial 19 months after she was arrested as most of the delay created in the case going to trial was of defendant’s own volition, she did not assert her right to speedy trial until three weeks before the trial, and under the totality of the circumstances she was not denied her right to a speedy trial. Black v. State, 823 So. 2d 543, 2002 Miss. App. LEXIS 135 (Miss. Ct. App. 2002).

The defendant’s right to a speedy trial was not violated where (1) when tolling the clock for several continuances, the defense attorney substitutions, the psychiatric evaluation, and the defendant’s skipping bond, only 265 days, at most, could be charged against the state, (2) although the defendant was incarcerated for a substantial period of the delay, his incarceration was caused by his skipping bond and unrelated offenses, and (3) there was no impairment of the defense. Elder v. State, 750 So. 2d 540, 1999 Miss. App. LEXIS 340 (Miss. Ct. App. 1999).

Where the delay in the case totaled more than 25 months, but 23 months of the delay was caused by the defendant leaving the state before he could be arrested and his subsequent incarceration in another state on an unrelated matter, the defendant was not denied his right to a speedy trial. Johnson v. State, 756 So. 2d 4, 1999 Miss. App. LEXIS 165 (Miss. Ct. App. 1999).

The defendant’s right to a speedy trial was not violated where (1) the length of time between the defendant’s arrest and the trial was approximately 13 months, but he was indicted by the first grand jury convened following his arrest and his trial was set for the next term of court, (2) the only continuances were caused by a joint motion for additional time to get medical evidence, by the defendant’s efforts to have his court appointed attorney dismissed, and by his bar complaint filed against his attorney, (3) the defendant’s actions between filing a pro se motion for a speedy trial and the time of trial caused the delay and the record did not show that he brought it to the attention of the trial court, and (4) there was no discernible prejudice other than time spent in jail for which the defendant was given credit on his eventual prison sentence. Taylor v. State, 744 So. 2d 306, 1999 Miss. App. LEXIS 145 (Miss. Ct. App. 1999).

The defendant was not denied his right to speedy trial under the statute where delays were caused by his requests for continuances, his motions, and his submission to a mental evaluation pursuant to court order. Snow v. State, 735 So. 2d 1094, 1999 Miss. App. LEXIS 121 (Miss. Ct. App. 1999).

The defendant failed to establish a violation of his right to a speedy trial where (1) the defendant was granted a total of four continuances and, in each of his first three motions for continuances, he expressly waived speedy trial rights, (2) a mistrial was declared when the venire panel was exhausted before a jury was selected, (3) the defendant made no effort to assert his rights prior to trial, and (4) the defendant did not allege any prejudice. Watts v. State, 733 So. 2d 214, 1999 Miss. LEXIS 45 (Miss. 1999), overruled in part, Rubenstein v. State, 2005 Miss. LEXIS 789 (Miss. Dec. 1, 2005).

The defendant was not entitled to dismissal for violation of his right to a speedy trial where (1) 296 days of the 640 days between arrest and trial were due to actions of the defendant and 209 days were due to docket congestion, (2) the defendant did not raise the issue of his right to a speedy trial until 458 days after his arrest, and (3) the defendant failed to show any prejudice other than the length of his pretrial incarceration. Bingham v. State, 755 So. 2d 426, 1999 Miss. App. LEXIS 7 (Miss. Ct. App. 1999).

The defendant’s right to a speedy trial was not violated where (1) the state offered valid reasons for all of the delays from the defendant’s arrest in October of 1994 until his trial in February of 1997, (2) most of the delays were either for neutral reasons or at the request of the defense, (3) the defendant did not show any actual trial prejudice and relied entirely on the “presumed” prejudice resulting from pre-trial incarceration, and (4) the defendant did not make a demand for a speedy trial until September of 1996 when he filed his motion to dismiss, which motion was made after he agreed to continuances, moved for his own continuance, and moved for a severance from his co-defendant. Horton v. State, 726 So. 2d 238, 1998 Miss. App. LEXIS 1122 (Miss. Ct. App. 1998).

A 419 day delay between arraignment and trial was not a violation of the defendant’s constitutional right to speedy trial where (1) 199 days were attributable to motions for continuances and substitutions of counsel by the defendant, (2) 97 days were attributable to an overcrowded court docket, (3) the defendant failed to assert his right to speedy trial until the day of trial, and (4) the defendant failed to show prejudice. Black v. State, 724 So. 2d 996, 1998 Miss. App. LEXIS 1046 (Miss. Ct. App. 1998).

The defendant was not denied his constitutional right to a speedy trial, notwithstanding a delay of about 1051 days from his arrest to the commencement of trial, where (1) much of the delay was attributable to the defendant, (2) the delays attributable to the state were necessary for pre-trial business such as the appointment of counsel, a preliminary hearing, the indictment and arraignment, the hearing of several defense motions, the appointment of additional counsel, the granting of a defense expert, the hearing of more motions, a rule on expert fees, and the hearing of a suppression motion, (3) the defendant did not request a speedy trial and only moved for dismissal for the denial of a speedy trial, and (4) there was no prejudice shown by the defendant. Brewer v. State, 725 So. 2d 106, 1998 Miss. LEXIS 345 (Miss. 1998), cert. denied, 526 U.S. 1027, 119 S. Ct. 1270, 143 L. Ed. 2d 365, 1999 U.S. LEXIS 2032 (U.S. 1999).

The defendant could not complain of a delay in trial caused by his acquiescence in and initiation of much of the plea bargaining that caused the delay. DeLoach v. State, 722 So. 2d 512, 1998 Miss. LEXIS 510 (Miss. 1998).

Delay in bringing defendant to trial in capital murder prosecution weighed heavily against defendant in constitutional speedy trial analysis where most delay was due to defendant and where State made no deliberate attempts that could be considered as oppressive conduct to harm defense. (Per Pittman, J., with two Justices concurring, two Justices concurring in the result only, and one Justice concurring in part.) Kolberg v. State, 704 So. 2d 1307, 1997 Miss. LEXIS 697 (Miss. 1997).

Defendant’s constitutional right to speedy trial was not violated, although 21-month delay between arrest and trial was presumptively prejudicial, where significant portion of delay was due to defendant’s request for psychological evaluation, defendant did not bring motion to dismiss on speedy trial grounds for over a year, and defendant did not demonstrate any prejudice. Simmons v. State, 678 So. 2d 683, 1996 Miss. LEXIS 285 (Miss. 1996).

Delay caused by actions of defendant, such as continuance, tolls running of speedy trial period for that length of time, and is subtracted from total amount of delay. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

A defendant’s constitutional right to a speedy trial was not violated, even though the length of the delay was 636 days, where the bulk of the delay was caused by the defendant’s frequent changes of counsel and his reneging on a plea agreement, the multitude of pretrial motions filed on the defendant’s behalf further contributed to the delay, the defendant made no assertion of his right other than a motion to dismiss the charges after the fact, and the defendant could not show tangible prejudice but relied only on the anxiety caused by incarceration and pending charges. Wagner v. State, 624 So. 2d 60, 1993 Miss. LEXIS 341 (Miss. 1993).

A defendant was not denied his right to a speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution and Article 3, § 26 of the Mississippi Constitution, even though approximately 11 months transpired between the defendant’s arrest and the commencement of his trial, where the State twice offered to try the case after each of the defendant’s 2 motions for speedy trial and the defendant twice declined, and the defendant made no showing of actual prejudice. Fleming v. State, 604 So. 2d 280, 1992 Miss. LEXIS 382 (Miss. 1992).

26. – Delay attributable to state, speedy trial.

Defendant’s right to a speedy trial under the Sixth Amendment and Miss. Const. Art. 3, § 26 was not violated because the bulk of the delay was due to the state crime lab’s forensic and DNA testing, which was critical to the case. Ben v. State, 95 So.3d 1236, 2012 Miss. LEXIS 411 (Miss. 2012), cert. denied, 569 U.S. 905, 133 S. Ct. 1723, 185 L. Ed. 2d 788, 2013 U.S. LEXIS 2589 (U.S. 2013).

Aggravated assault conviction and sentence were affirmed where counsel was not ineffective because the defendant provided no evidence that proved he suffered harm as a result of his attorney not objecting to the State’s leading questions or that had his attorney objected to the State’s leading questions the outcome would have been different and trial counsel’s failure to object to leading questions by the State could have been a trial strategy. Bullard v. State, 923 So. 2d 1043, 2005 Miss. App. LEXIS 741 (Miss. Ct. App. 2005), cert. denied, 927 So. 2d 750, 2006 Miss. LEXIS 160 (Miss. 2006).

Defendant’s constitutional and statutory rights to a speedy trial on drug charges were not violated. The 742-day delay between indictment and trial was presumptively prejudicial, but defendant failed to actively pursue his right to a speedy trial, and he was not actually prejudiced. Alexander v. State, 875 So. 2d 261, 2004 Miss. App. LEXIS 558 (Miss. Ct. App. 2004).

Delay of 30 years between the original indictment and the trial did not violate defendants’ speedy trial rights where the trial court granted a nolle prosequi the same year as the original indictment, and defendants were re-indicted and tried 30 years later. Caston v. State, 823 So. 2d 473, 2002 Miss. LEXIS 178 (Miss. 2002).

Although the cause for the delay in going to trial was well beyond the presumptively prejudicial eight-month period, the cause for delay after the arrest and prior to the indictment was with the investigating agencies, including the Federal Bureau of Investigation and the majority of delay thereafter was caused by the multiplicity of motions filed by each of the defendants; thus, the State’s contributions to the delay were legitimate and there was no violation of the constitutional right to a speedy trial. Collins v. State, 817 So. 2d 644, 2002 Miss. App. LEXIS 313 (Miss. Ct. App. 2002).

The defendant’s right to a speedy trial was not violated, notwithstanding a 474 day delay between his arrest and trial, where the reason for the lengthy delay was that the defendant was reindicted; defendant did not demonstrate any prejudice to himself or his defense by the delay, and he did not assert his right to a speedy trial until two days before trial. Jamison v. State, 741 So. 2d 359, 1999 Miss. App. LEXIS 288 (Miss. Ct. App. 1999).

The defendant was not denied his right to a speedy trial where (1) the trial was delayed for good cause the state obtained a continuance so it could attempt to locate a material witness, (2) the defendant did not file a motion for a speedy trial until a few days before the trial was set to start, and (3) there was no prejudice other than the fact that the defendant remained incarcerated during this time while waiting to be brought to trial. Holiday v. State, 739 So. 2d 394, 1999 Miss. App. LEXIS 176 (Miss. Ct. App. 1999).

The defendant was not entitled to reversal of his conviction for murder on the basis of a violation of his right to a speedy trial where (1) the delay was for good cause, as it was requested by the state so that it could locate a material witness, (2) the defendant waited until the Friday before the trial was set to start on a Monday morning and then filed his motion for a speedy trial, and (3) the defendant suffered no prejudice other than continued incarceration during the time while waiting to be brought to trial. Holiday v. State, 1999 Miss. App. LEXIS 15 (Miss. Ct. App. Jan. 26, 1999), op. withdrawn, sub. op., 739 So. 2d 394, 1999 Miss. App. LEXIS 176 (Miss. Ct. App. 1999).

The defendant failed to establish a violation of his right to a speedy trial where (1) the defendant was granted a total of four continuances and, in each of his first three motions for continuances, he expressly waived speedy trial rights, (2) a mistrial was declared when the venire panel was exhausted before a jury was selected, (3) the defendant made no effort to assert his rights prior to trial, and (4) the defendant did not allege any prejudice. Watts v. State, 733 So. 2d 214, 1999 Miss. LEXIS 45 (Miss. 1999), overruled in part, Rubenstein v. State, 2005 Miss. LEXIS 789 (Miss. Dec. 1, 2005).

The trial court did not improperly dismiss the speedy trial claim where the reasons for the delay were valid, the assertion of the right only occurred near the time of the trial, and there was no showing of actual prejudice. Hogan v. State, 730 So. 2d 94, 1998 Miss. App. LEXIS 1078 (Miss. Ct. App. 1998).

Any delay as result of action by state, without good cause, causes time to be counted against state in speedy trial analysis. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Delay of murder trial at request of state until after defendant’s aggravated assault trial would be charged to state in speedy trial analysis. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

A defendant was not denied his right to a speedy trial, even though 266 days elapsed from the time of his arrest to the time of his first trial which ended in a mistrial, 305 days elapsed from his arrest to his second trial which resulted in a conviction, the delay was attributable to the State, and the defendant filed a motion for a speedy trial 15 days after indictment, where he did not file a motion to dismiss for lack of a speedy trial until the day before the second trial, and he failed to show any actual prejudice. Rhymes v. State, 638 So. 2d 1270, 1994 Miss. LEXIS 321 (Miss. 1994).

A defendant’s constitutional right to a speedy trial was violated, even though the defendant made several motions for continuances and did not make a demand for a speedy trial, where there was a delay of approximately 3 1/2 years between the date the grand jury returned the indictment and the date of the trial, the State procrastinated in requesting blood, fingerprint and hair samples, the State failed to take appropriate measures to get the defendant moved to Mississippi for trial, the State failed to provide discovery, and there were 8 continuances for which the record stated no reason or justification. Vickery v. State, 535 So. 2d 1371, 1988 Miss. LEXIS 571 (Miss. 1988).

A conviction of false pretense in the selling of an automobile known to be stolen, would be reversed and the defendant discharged from confinement, where he had been continually available for prosecution, although in federal custody part of the time, where all the time his identity was known as well as the facts of the crime, but his prosecution did not take place until two years after issuance of the warrant for his arrest on the charge, and after records were no longer available, one of his witnesses was dead and another had left the state, the facts constituting a denial of his constitutional right to a speedy trial. Bell v. State, 220 So. 2d 287, 1969 Miss. LEXIS 1446 (Miss. 1969).

27. – Delay unattributable to defendant or state, speedy trial.

Defendant was not denied his right to a speedy trial where a total of 810 days elapsed from the date of defendant’s arrest to the date on which the trial began, because defendant requested continuances prior to moving for a speedy trial, the State was granted continuances for DNA analyses and to find a key witness, after DNA tests were ordered, there were several motions filed by defendant and the State, and thus good cause was shown related to matters beyond the control of the State. Flora v. State, 925 So. 2d 797, 2006 Miss. LEXIS 49 (Miss.), cert. denied, 549 U.S. 912, 127 S. Ct. 253, 166 L. Ed. 2d 197, 2006 U.S. LEXIS 6127 (U.S. 2006).

Constitutional right to a speedy trial was not denied, although a rape trial commenced more than two years after defendant’s arrest, because there was good cause for the delay and no showing of actual prejudice. Watson v. State, 848 So. 2d 203, 2003 Miss. App. LEXIS 562 (Miss. Ct. App. 2003), aff'd, 2003 Miss. App. LEXIS 623 (Miss. Ct. App. June 17, 2003).

A capital murder defendant was not denied his constitutional right to a speedy trial, even though 434 days elapsed between his arrest and the trial, and the defendant asserted his right to a speedy trial at his initial appearance and by pretrial motions, where some of the delay was due to the defense counsels’ conflicts, the judge to whom the case had been assigned for 7 months was murdered, there was a complete “turn-over” in the district attorney’s office, there was no showing that the State made a willful effort to delay the trial or that it was negligent in doing so, and the delay did not cause any prejudice to the defense. Thorson v. State, 653 So. 2d 876 (Miss. 1994), reh’g denied (Miss. Apr. 20, 1995).

A defendant was not denied his constitutional right to a speedy trial, even though 449 days elapsed between his arrest and the date of the hearing adjudicating his motion to dismiss the charges, and there was a 6 1/2 month delay between arrest and indictment which was attributed to the crime lab and court congestion, where a 5-month delay was attributable to the defendant and his change of counsel, 8 months of the delay occurred during a period in which there was no demand for a speedy trial and in which the defendant was held on other unrelated charges, and the defendant’s testimony did not mention the existence of prejudice. State v. Magnusen, 646 So. 2d 1275, 1994 Miss. LEXIS 552 (Miss. 1994).

A defendant was not denied his right to a speedy trial, even though there was a 23-month delay from the date of arrest to the date of trial and a portion of the delay was attributable to official neglect with respect to completion and delivery of a lab report, where the defendant was indicted within 15 months of his arrest, and he failed to show any actual prejudice as a result of the delay. Perry v. State, 637 So. 2d 871, 1994 Miss. LEXIS 283 (Miss. 1994).

A lapse of five years between a defendant’s indictment and trial did not deny him a speedy trial where the facts established that he had defaulted on his bail bond, that officials had made every reasonable effort to locate him and bring him back to the county for trial, that the defendant did not make any request between time of indictment and time of trial for a speedy trial, and that when he was finally apprehended he was granted a speedy trial. McCrory v. State, 223 So. 2d 625, 1969 Miss. LEXIS 1281 (Miss. 1969).

28. –Shared attribution for delay, speedy trial.

Applying the Barker test, the appellate court held that although more than eight months passed from the date of defendant’s arrest to the date of trial, the trial judge was correct in his determination that there was no speedy trial right violation as the reason for delay showed sufficient good cause, based on a delay in DNA testing and an overcrowded docket; defendant asserted his right to a speedy trial late in the process; and there was no actual prejudice. Felder v. State, 831 So. 2d 562, 2002 Miss. App. LEXIS 684 (Miss. Ct. App. 2002).

A defendant was not denied his constitutional right to a speedy trial, even though 475 days elapsed between his arrest and his trial, where extradition of the defendant caused 9 days of the delay, a substantial portion of the delay (119 days) was due to a continuance granted to the defendant on the date the case was originally set for trial, approximately 12 months of the delay was not attributable to either the defendant or his attorney, the defendant did not assert his right to a speedy trial until after he had been granted the continuance on the date originally scheduled for trial, and the defendant’s claim that he was prejudiced by the delay because he lost touch with certain alibi witnesses was diminished by the facts that minimum effort was made by the defendant or his investigator to locate or contact witnesses who had moved, the lost witnesses would have been available to testify on the date originally set for trial, and no mention of this matter was made in the defendant’s motion for a new trial filed a week after the verdict was rendered. Noe v. State, 616 So. 2d 298, 1993 Miss. LEXIS 116 (Miss. 1993).

A defendant was denied his constitutional right to a speedy trial where 2 1/2 years elapsed between the time of the defendant’s arrest and his trial, the defendant caused 11 months of the delay while the State caused one year and 9 months of the delay without good cause, the defendant asserted his right to a speedy trial one year prior to his trial, and the defendant was prejudiced as a result of the delay in bringing him to trial as the only witness alleged to have connected the defendant to the crime died before the defendant was brought to trial and another witness admitted that her memory was not as good at the time of trial as it had been previously. Jenkins v. State, 607 So. 2d 1137, 1992 Miss. LEXIS 536 (Miss. 1992).

A defendant’s constitutional and statutory rights to a speedy trial were not violated, even though the delay between the defendant’s arrest and trial was 378 days and the delay between arraignment and trial was 370 days, where only one of the delays–a continuance requested by the State solely for its prosecutorial tactical advantage–was attributable to the State, and, after calculating the delays caused by the defendant, he came to trial 164 days after his arrest and 156 days after his waiver of arraignment. Ross v. State, 605 So. 2d 17, 1992 Miss. LEXIS 419 (Miss. 1992).

A defendant was not deprived of his constitutional right to a speedy trial, even though he was tried 603 days after his arrest, where only the 162-day delay from the arrest to the indictment was chargeable against the State, the defendant did not assert his right to a speedy trial until 35 days prior to trial, and he failed to show prejudice as a result of the delay. Handley v. State, 574 So. 2d 671, 1990 Miss. LEXIS 857 (Miss. 1990), op. withdrawn, sub. op., 1991 Miss. LEXIS 235 (Miss. Apr. 16, 1991).

29. –Indictment and information, speedy trial.

Defendant was arrested on July 5, 2000, indicted one year later, and his trial commenced on April 2, 2002. For purposes of the pre-indictment delay of 366 days, there was nothing in the record or in defendant’s brief to indicate (1) that defendant made any effort to request an attorney, seek bail, or demand a speedy trial prior to June 2001; (2) that the State delayed bringing defendant to trial for any prejudicial or improper reason; or (3) any prejudice to defendant by the delay; thus, defendant’s right to a speedy trial was not violated by the pre-indictment delay. Young v. State, 891 So. 2d 813, 2005 Miss. LEXIS 40 (Miss. 2005).

Delay in trial caused when state re-indicted defendant twice in good faith weighed less heavily against state in speedy trial analysis than if state had acted in bad faith. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

A defendant’s right to a speedy trial was not violated, even though the defendant was tried for capital murder more than 270 days after his original arraignment on an indictment for murder less than capital, where the defendant was reindicted for capital murder and was tried well within the 270-day rule from the time of the arraignment on the capital murder charge. Galloway v. State, 574 So. 2d 1, 1990 Miss. LEXIS 895 (Miss. 1990).

A simple delay between the date of an offense and the date of the indictment is not per se reversible error, particularly when the reason for the delay is for the purpose of concealing the identity of an undercover agent for a reasonable period of time so that he or she may continue to work effectively as an agent. Thus, a defendant was not denied his right to a speedy trial where a 10-month delay from the time of the criminal act to the charge and arrest was caused by the State’s pursuance of a continuing undercover operation. Dedeaux v. State, 519 So. 2d 886, 1988 Miss. LEXIS 48 (Miss. 1988).

Twenty-one month delay in bringing defendant to trial following arrest violates defendant’s right to speedy trial where there is one year delay in indicting defendant for offense of house burglary, defendant files motion to dismiss indictment, state obtains order remanding charge for purpose of reindicting defendant as habitual offender, and state obtains new indictment against defendant 19 months after arrest. Burgess v. State, 473 So. 2d 432, 1985 Miss. LEXIS 2185 (Miss. 1985).

In a prosecution for the sale of marijuana, defendant’s right to a speedy trial as regards delay of prosecution could have accrued no earlier than the date of the return of the indictment where pre-indictment and pre-trial delays were justifiable to conceal the identity of an undercover agent for a reasonable period of time so that he may continue to work effectively as such agent and the date of the indictment was within the two-year time frame set forth in Code 1972, §99-1-5 during which prosecutions may be commenced. Page v. State, 295 So. 2d 279, 1974 Miss. LEXIS 1494 (Miss. 1974).

The claim of an accused that he had been denied a speedy trial would not be denied on the ground that the accused had not requested a trial between the date of his indictment and his trial, where the accused was given no notice of the indictment until he was notified to appear for trial, and hence there was no reason for him to request a speedy trial. Bell v. State, 220 So. 2d 287, 1969 Miss. LEXIS 1446 (Miss. 1969).

30. –Change of counsel, speedy trial.

Delays caused by 2 changes in defense counsel would not be charged against state in speedy trial analysis. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

In determining whether violation of defendant’s constitutional right to speedy trial has occurred, delay between arrest and trial caused by withdrawal of defendant’s attorney which entails allowing new attorney reasonable time to become familiar with case and prepare for trial cannot be weighed against state because it is beyond state’s control. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

In determining whether violation of defendant’s constitutional right to speedy trial has occurred, delay due to changes in defendant’s attorneys and defendant’s reneging on plea agreement weigh against defendant. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

31. –Plea negotiations, speedy trial.

Plea negotiations that lasted 360 days would not be counted against state in speedy trial analysis; defendant participated or at least acquiesced in negotiations and received some benefit from them. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

For speedy trial analysis, delays from attempts to negotiate plea agreement were not attributable to accused, since there was no evidence in record as to whether defendant acquiesced to these plea negotiations. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

In determining whether violation of defendant’s constitutional right to speedy trial has occurred, delays caused by plea negotiations are for good cause and have effect of tolling speedy trial clock, although such negotiations should be substantiated by documentation. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

32. – Crowded docket, speedy trial.

Defendant’s conviction was affirmed because while it was clear that defendant was not tried within 270 days as required under Miss. Code Ann. §99-17-1, it was also clear that the reason for the delay was the congested trial docket. Moreover, defendant showed no prejudice to his ability to mount a defense as a result of the delay. Johnson v. State, 69 So.3d 10, 2010 Miss. App. LEXIS 229 (Miss. Ct. App. 2010), aff'd, 68 So.3d 1239, 2011 Miss. LEXIS 335 (Miss. 2011).

The defendant was not denied his constitutional right to a speedy trial where the delay of the trial was caused by a congested docket and, although the defendant raised his motion to dismiss two months prior to the actual scheduled date for the trial, he suffered no prejudice. Biggers v. State, 741 So. 2d 1003, 1999 Miss. App. LEXIS 368 (Miss. Ct. App. 1999).

The defendant was not entitled to dismissal for violation of his right to a speedy trial where (1) 296 days of the 640 days between arrest and trial were due to actions of the defendant and 209 days were due to docket congestion, (2) the defendant did not raise the issue of his right to a speedy trial until 458 days after his arrest, and (3) the defendant failed to show any prejudice other than the length of his pretrial incarceration. Bingham v. State, 755 So. 2d 426, 1999 Miss. App. LEXIS 7 (Miss. Ct. App. 1999).

The defendant waived his right to a speedy trial when he pleaded guilty to manslaughter. Rowe v. State, 735 So. 2d 399, 1999 Miss. LEXIS 144 (Miss. 1999).

A 419 day delay between arraignment and trial was not a violation of the defendant’s constitutional right to speedy trial where (1) 199 days were attributable to motions for continuances and substitutions of counsel by the defendant, (2) 97 days were attributable to an overcrowded court docket, (3) the defendant failed to assert his right to speedy trial until the day of trial, and (4) the defendant failed to show prejudice. Black v. State, 724 So. 2d 996, 1998 Miss. App. LEXIS 1046 (Miss. Ct. App. 1998).

Delays due to crowded court docket do not weigh as heavily against state, for speedy trial purposes, as do deliberate or purposeful delays. Skaggs v. State, 676 So. 2d 897, 1996 Miss. LEXIS 317 (Miss. 1996).

A defendant was not denied his constitutional right to a speedy trial, even though 574 days elapsed from the date of his arrest to the date of trial and he properly asserted his right to a speedy trial, where the delay was caused by an overcrowded trial docket and the county’s system of assigning each case to a particular judge as that case proceeded up to and through the trial process, and the defendant demonstrated no actual prejudice. McGhee v. State, 657 So. 2d 799, 1995 Miss. LEXIS 329 (Miss. 1995).

A defendant was not denied his constitutional right to a speedy trial, even though the length of the delay between the defendant’s arrest and his trial was 334 days and the defendant asserted his right to a speedy trial in a timely manner, where most of the delay was attributable to ordinary lag from crowded dockets and court terms, and the defendant did not even attempt to show any particular prejudice resulting from the delay but merely maintained that he had increased anxiety due to the delay. Hurns v. State, 616 So. 2d 313, 1993 Miss. LEXIS 121 (Miss. 1993).

A defendant’s right to a speedy trial was violated where 301 days elapsed between the day of arraignment and the day of the trial, and the case was continued twice by court order stating that “all cases not otherwise disposed of are hereby ordered continued to the next regular term of court.” Although docket congestion is “good cause” for delay in certain circumstances, the State never sought a continuance for this or any other reason, but instead relied on the “mass continuances” routinely made at the end of each court term. Yarber v. State, 573 So. 2d 727, 1990 Miss. LEXIS 786 (Miss. 1990).

Where crime with which defendant was charged was committed in April 1971, defendant was indicted by the grand jury in September 1971, defendant was returned to Mississippi in August 1972 following his extradition for an out-of-state trial, and in September 1972, the court offered to try the defendant or pointed out that if he demanded a special venire the case would have to be continued, because the term of court was about to expire, and it could not be extended due to a conflicting term in the same court district, and the case was then set for trial at the next term of court in March 1973, the defendant was not denied a speedy trial. Craig v. State, 284 So. 2d 57, 1973 Miss. LEXIS 1250 (Miss. 1973).

33. –Incompetency of defendant, speedy trial.

Defendant was not denied right to a speedy trial where, although almost 7 years elapsed between his indictment on charges of murder and aggravated assault and his arraignment, substantially all of the delay was due to defendant’s confinement in a state mental institution pursuant to court order, issued shortly after the indictment, finding defendant insane and not competent to stand trial, and trial was set in less than 6 weeks after the court was notified by institution’s staff of defendant’s competence to stand trial. Smith v. State, 489 So. 2d 1389, 1986 Miss. LEXIS 2482 (Miss. 1986).

34. –Continuances, speedy trial.

Continuances requested by defendant, including continuance to allow defense counsel additional time for discovery after defendant changed attorneys in immediate days before trial for no compelling reason, would be charged to defendant in speedy trial analysis. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

A defendant’s constitutional right to a speedy trial was not violated where the defendant was tried 230 days after his arrest, the delay was due to the State’s reasonable and legitimate motion for a continuance predicated on the unavailability of a material witness, the defendant’s assertion of his right to a speedy trial was made 173 days prior to trial in conjunction with his objection to the State’s request for a continuance, and there was no actual prejudice to the defendant in his defense. Box v. State, 610 So. 2d 1148, 1992 Miss. LEXIS 748 (Miss. 1992).

A defendant’s constitutional right to a speedy trial was not violated, even though 536 days elapsed between the defendant’s arrest and his trial and no reason for the delay appeared in the record, where 126 days were attributable to a continuance requested by the defendant, the defendant’s first and only assertion of his right to a speedy trial came only one day prior to trial, and the defendant experienced no prejudice as a result of the delay. Spencer v. State, 592 So. 2d 1382, 1991 Miss. LEXIS 965 (Miss. 1991).

In determining whether a defendant has been denied his or her right to a speedy trial, a continuance granted to the defendant is counted differently from a continuance granted to the State. Any delay as a result of action by the State without “good cause” causes the time to be counted against the State. A delay caused by the actions of the defendant, such as a continuance, tolls the running of the time period for that length of time, and this time is subtracted from the total amount of the delay. Wiley v. State, 582 So. 2d 1008, 1991 Miss. LEXIS 364 (Miss. 1991).

Defendant who was tried 15 months after his indictment for forgery was not denied his right to a speedy trial where he had never asserted that right prior to his trial, several continuances were at his request, and, though defendant claimed he asked for one continuance on the basis of the district attorney’s agreement not to prosecute the forgery case if defendant was convicted on other pending charges, there was no proof of such agreement, it would not in any case have been binding on the trial judge’s setting of the docket, and defendant showed no prejudice resulting from the delay. Harrington v. State, 336 So. 2d 721, 1976 Miss. LEXIS 1514 (Miss. 1976).

35. – Guilty plea, speedy trial.

Although defendant argued that he was deprived of his right to a speedy trial, a valid guilty plea operated as a waiver of all non-jurisdictional defects or rights incidental to trial and this included a defendant’s right to a speedy trial. Turner v. State, 961 So. 2d 734, 2007 Miss. App. LEXIS 200 (Miss. Ct. App.), cert. dismissed, 968 So. 2d 948, 2007 Miss. LEXIS 627 (Miss. 2007).

Inmate’s petition for post-conviction was denied because he waived the right to challenge on the basis of speedy trial or a defect in the indictment under Miss. Const. Art. VI, § 169 when he entered a guilty plea. Burch v. State, 929 So. 2d 394, 2006 Miss. App. LEXIS 375 (Miss. Ct. App. 2006).

A valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial, including the right to a speedy trial, whether of constitutional or statutory origin. Anderson v. State, 577 So. 2d 390, 1991 Miss. LEXIS 180 (Miss. 1991).

A delay of four years and one month in sentencing a defendant following his guilty plea violated his constitutional right to a speedy trial where the State gave no good reason for the delay and the defendant had fulfilled the “probation-like” conditions of deferral of his sentencing. Trotter v. State, 554 So. 2d 313, 1989 Miss. LEXIS 496 (Miss. 1989), overruled in part, Betterman v. Montana, — U.S. —, 136 S. Ct. 1609, 194 L. Ed. 2d 723, 2016 U.S. LEXIS 3349 (U.S. 2016).

Nine hundred and forty-six day delay between arraignment and trial on charges of burglary and being habitual criminal does not violate defendant’s speedy trial right where defendant is originally imprisoned pursuant to voluntary plea of guilty to what defendant thinks is lesser included offense, such disposition of case takes place well within time required by §99-17-1, defendant succeeds in having conviction overturned, and trial is held 76 days after order overturning original conviction. Darby v. State, 476 So. 2d 1192, 1985 Miss. LEXIS 2247 (Miss. 1985).

36. –Totality of circumstances, speedy trial.

Defendant’s constitutional right to a speedy trial was not violated because, although there was a delay of 424 days, the case was complicated and required the use of experts for both sides, and a witness did actually identify defendant from a six-photo line-up a few days after the murder. Galloway v. State, 122 So.3d 614, 2013 Miss. LEXIS 328 (Miss. 2013), cert. denied, 572 U.S. 1134, 134 S. Ct. 2661, 189 L. Ed. 2d 209, 2014 U.S. LEXIS 3685 (U.S. 2014).

Defendant was not denied his constitutional right to speedy trial, considering totality of circumstances; total delay from date of arrest to date of trial was 409 days and thus was presumptively prejudicial, total period of delay after subtracting delays attributable to defendant was 211 days, defendant claimed violation of his constitutional right to speedy trial 3 days before trial, and defendant made no showing of actual prejudice other than his incarceration. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

37. – Prejudice to defendant, speedy trial.

Defendant’s right to a speedy trial under the Sixth Amendment and Miss. Const. Art. 3, § 26 was not violated because the prejudice was minimal since the fading memories of potential, unnamed witnesses did not impair defense. Ben v. State, 95 So.3d 1236, 2012 Miss. LEXIS 411 (Miss. 2012), cert. denied, 569 U.S. 905, 133 S. Ct. 1723, 185 L. Ed. 2d 788, 2013 U.S. LEXIS 2589 (U.S. 2013).

Defendant’s convictions for aggravated assault and armed robbery were proper because his right to a speedy trial was not violated since the delay was neither intentional nor egregiously protracted,and there was an absence of actual prejudice to the defense. Johnson v. State, 68 So.3d 1239, 2011 Miss. LEXIS 335 (Miss. 2011).

Defendant was not denied his right to a speedy trial, even though the 14-month delay between the placement of the detainer and defendant’s trial date was presumptively prejudicial, because defendant did not file a motion to dismiss for the lack of a speedy trial until one year after his arrest and there was no evidence to support defendant’s claim of lost witnesses or his claim that the delay negatively affected the conditions of his confinement under his previous sentence. Clayton v. State, 946 So. 2d 796, 2006 Miss. App. LEXIS 482 (Miss. Ct. App. 2006), cert. dismissed, 947 So. 2d 960, 2007 Miss. LEXIS 64 (Miss. 2007).

Defendant’s right to a speedy trial was not violated because, while a delay did exist, defendant failed to assert his right to a speedy trial, did not object to any delays, other than filing the day before trial a motion to dismiss for failure to provide a speedy trial, and failed to show that he suffered any actual prejudice due to the delay. Roach v. State, 938 So. 2d 863, 2006 Miss. App. LEXIS 102 (Miss. Ct. App.), cert. denied, 937 So. 2d 450, 2006 Miss. LEXIS 600 (Miss. 2006).

Most significant factor was that defendant failed to demonstrate how his incarceration and the 31-month delay between his arrest and trial caused him any actual prejudice. Thus, per the Barker factors, the appellate court found that there was no violation of defendant’s constitutional right to a speedy trial; secondly, defendant waived his right to complain about the denial of his statutory right to a speedy trial since he did not assert that right until well after the statutory deadline had passed, and because his assertions as to a denial of his speedy trial rights would not have resulted in a different outcome to the case, counsel was not ineffective in failing to raise said issues. Guice v. State, 952 So. 2d 187, 2006 Miss. App. LEXIS 72 (Miss. Ct. App. 2006), aff'd, 952 So. 2d 129, 2007 Miss. LEXIS 9 (Miss. 2007).

Time elapsing from the date of defendant’s arrest to the beginning day of his trial was more than 31 months, and was presumptively prejudicial under the Barker factor. However, he had not asserted his right to a speedy trial and on appeal, he did not assert that his defense suffered any prejudice because of his lengthy incarceration; he did not contend that witnesses were unavailable because of the delay or that evidence had been lost or destroyed or that his defense against the charges was affected in any way by the delay, and because no actual prejudice was shown, his constitutional right to a speedy trial was not violated. Guice v. State, 952 So. 2d 187, 2006 Miss. App. LEXIS 72 (Miss. Ct. App. 2006), aff'd, 952 So. 2d 129, 2007 Miss. LEXIS 9 (Miss. 2007).

Trial court carefully and patiently examined the testimony and other evidence and provided defendant with ample opportunity to provide evidence that the delay was not attributable to him or good cause; defendant failed to suggest any evidence, potential witness, or case theory which escaped his reach because of the delay, and there was no basis to hold that the delay in the proceedings impaired defendant’s defense of the case. Stark v. State, 911 So. 2d 447, 2005 Miss. LEXIS 458 (Miss. 2005).

District court’s ruling that the government could not seek the death penalty against a defendant charged with carjacking resulting in death in violation of 18 U.S.C.S. § 2119(3) was vacated where the 16-month delay between the indictment and the government’s notice of appeal was not long enough to weigh heavily in favor of presuming prejudice to the defendant, the government’s use of two continuances within one year of the indictment to further investigate was permissible, there was no evidence to support the finding that the defendant had refrained from appealing a magistrate’s rulings based on the government’s death penalty representations, and the defendant had not diligently asserted his speedy trial right and failed to show that he was actually prejudiced by any delay. United States v. Frye, 372 F.3d 729, 2004 U.S. App. LEXIS 11029 (5th Cir. Miss. 2004), cert. denied, 543 U.S. 1155, 125 S. Ct. 1296, 161 L. Ed. 2d 120, 2005 U.S. LEXIS 1580 (U.S. 2005).

No violation of defendant’s constitutional right to a speedy trial occurred where there was no evidence in the record to suggest that defendant had attempted to obtain a ruling on a motion asserting his right to a speedy trial; there was no prejudice to defendant’s defense based on the testimony of the defense witnesses, who were clear in their recollection of what transpired on the night of the crime. Anderson v. State, 874 So. 2d 1000, 2004 Miss. App. LEXIS 188 (Miss. Ct. App. 2004).

Defendant’s conviction for aggravated assault was proper where his right to a speedy trial was not violated because the claim was not preserved for appellate review; moreover, the evidence defendant complained he was unable to present was cumulative to evidence he did not present; the court could discern no prejudice under those circumstances and there could be no violation of the right to a speedy trial in the absence of prejudice. Woodson v. State, 845 So. 2d 740, 2003 Miss. App. LEXIS 425 (Miss. Ct. App. 2003).

One defendant alleged that the delay in going to trial could diminish the ability of defense witnesses to recall pertinent dates and times that could weaken a possible alibi defense, while the other defendant alleged that the defendant experienced anxiety, depression, mental anguish, and psychological and mental distress due to the delay and also that defendant was unable to remember certain facts and locate alibi witnesses; however, defendants wholly failed in their efforts to demonstrate any actual prejudice and there was no violation of the constitutional right to a speedy trial. Collins v. State, 817 So. 2d 644, 2002 Miss. App. LEXIS 313 (Miss. Ct. App. 2002).

The defendant was not denied his constitutional right to a speedy trial, notwithstanding a delay of almost two years and 11 months between arrest and trial, and that the state offered no explanation for the delay, because the defendant failed to assert his right to a speedy trial and failed to demonstrate any actual prejudice, or the probability, as opposed to possibility, of actual prejudice. Smith v. State, 812 So. 2d 1045, 2001 Miss. App. LEXIS 115 (Miss. Ct. App. 2001).

An almost five year delay between the defendant’s second mistrial in 1964 and the entry of a nolle prosequi in 1969 did not violate the defendant’s speedy trial rights as the defendant was not retried after his second mistrial and, therefore, there was no prejudice. Beckwith v. Anderson, 89 F. Supp. 2d 788, 2000 U.S. Dist. LEXIS 7033 (S.D. Miss. 2000).

The complete absence of any evidence of actual prejudice to the defendant arising out of a 14 month delay in bringing the defendant to trial outweighed any other considerations that weighed against the state and, therefore, the trial court did not err when it denied the defendant’s motion to dismiss the indictment based on a perceived violation of his right to a speedy trial under the Sixth Amendment. Genry v. State, 767 So. 2d 302, 2000 Miss. App. LEXIS 426 (Miss. Ct. App. 2000).

A five year delay between a mistrial in a murder prosecution and the entry of a nolle prosequi did not violate the defendant’s constitutional right to a speedy trial because the defendant was not retried after the mistrial and, therefore, suffered no prejudice. Beckwith v. Anderson, 89 F. Supp. 2d 788, 2000 U.S. Dist. LEXIS 2238 (S.D. Miss. 2000).

The defendant’s constitutional right to speedy trial was not violated, notwithstanding that 11 months elapsed from the time of his arrest to his trial and that the state did not show good cause for the delay, where (1) although the defendant was imprisoned for a period of time before trial, most, if not all, of his period of imprisonment stemmed from his parole revocation and conviction on subsequent criminal charges, and (2) he did not assert his right to a speedy trial until nine months after his arrest. Jones v. State, 756 So. 2d 852, 2000 Miss. App. LEXIS 76 (Miss. Ct. App. 2000).

There was no violation of the defendant’s constitutional right to a speedy trial, notwithstanding a delay of approximately 400 days from the date of his arrest or indictment to the date of his trial, where the defendant did not seek a dismissal until 20 days prior to going to trial and there was no demonstration of actual memory loss by witnesses which might have caused prejudice. Riggs v. State, 744 So. 2d 365, 1999 Miss. App. LEXIS 346 (Miss. Ct. App. 1999).

The defendant’s right to a speedy trial was not violated where (1) when tolling the clock for several continuances, defense attorney substitutions, psychiatric evaluation, and the defendant’s skipping bond, only 265 days, at most, could be charged against the state, (2) although the defendant was incarcerated for a substantial period of the delay, his incarceration was caused by his skipping bond and unrelated offenses, and (3) there was no impairment of the defense. Elder v. State, 750 So. 2d 540, 1999 Miss. App. LEXIS 340 (Miss. Ct. App. 1999).

The defendant failed to establish prejudice arising from the delay of his trial, notwithstanding his contentions that (1) he was unable to adequately prepare his case, and (2) since the state did not simultaneously prosecute him on his four outstanding indictments he could not take the witness stand in his defense without the trial jury becoming aware of his previous convictions for similar crimes. Robinson v. State, 1999 Miss. App. LEXIS 320 (Miss. Ct. App. June 8, 1999).

The defendant was not prejudiced by the fact that she suffered a ruptured brain aneurysm during the delay between her arraignment and trial, notwithstanding that she may have suffered loss of memory because of her condition, as the ruptured aneurysm was in no way caused or exacerbated by the state. Swindle v. State, 755 So. 2d 1158, 1999 Miss. App. LEXIS 318 (Miss. Ct. App. 1999).

The absence of a witness did not constitute prejudice where the defendant never proffered anything at trial describing the potential testimony of the witness, other than saying that the defense anticipated him to testify that if the defendant hadn’t shot the victim, the victim “would have killed us all,” and such statement was cumulative to testimony received from another witness. Swindle v. State, 755 So. 2d 1158, 1999 Miss. App. LEXIS 318 (Miss. Ct. App. 1999).

The defendant was not prejudiced by a delay in his sentencing, which was deferred to give him an opportunity to make restitution, notwithstanding the contention that had sentence been imposed, he would have not committed a subsequent offense for which he was indicted as an habitual criminal. Massengill v. State, 755 So. 2d 492, 1999 Miss. App. LEXIS 297 (Miss. Ct. App. 1999).

The defendant was not entitled to reversal of his conviction for murder on the basis of a violation of his right to a speedy trial where (1) the delay was for good cause, as it was requested by the state so that it could locate a material witness, (2) the defendant waited until the Friday before the trial was set to start on a Monday morning and then filed his motion for a speedy trial, and (3) the defendant suffered no prejudice other than continued incarceration during the time while waiting to be brought to trial. Holiday v. State, 1999 Miss. App. LEXIS 15 (Miss. Ct. App. Jan. 26, 1999), op. withdrawn, sub. op., 739 So. 2d 394, 1999 Miss. App. LEXIS 176 (Miss. Ct. App. 1999).

The defendant was not entitled to dismissal for violation of his right to a speedy trial where (1) 296 days of the 640 days between arrest and trial were due to actions of the defendant and 209 days were due to docket congestion, (2) the defendant did not raise the issue of his right to a speedy trial until 458 days after his arrest, and (3) the defendant failed to show any prejudice other than the length of his pretrial incarceration. Bingham v. State, 755 So. 2d 426, 1999 Miss. App. LEXIS 7 (Miss. Ct. App. 1999).

The defendant failed to show that he was prejudiced by a 38 month delay, notwithstanding his assertion that he had grown significantly during that time and that his defense of duress was harmed by his change in appearance, as he was no longer smaller than his codefendant; the fact that his appearance changed and that he looked less sympathetic was one of the inexorable realities of the end of adolescence, and pictures and verbal descriptions used at his trial established his earlier appearance. Biggs v. State, 741 So. 2d 318, 1999 Miss. App. LEXIS 238 (Miss. Ct. App. 1999).

The defendant failed to show prejudice caused by a 12 month delay where the record was devoid of any testimony from the defendant himself reflecting anxiety and concern, and there was no evidence that his defense was impaired. Arthur v. State, 735 So. 2d 213, 1999 Miss. LEXIS 124 (Miss. 1999).

The delay in the defendant’s trial was not presumptively prejudicial where (1) at the time the first capias was executed, the defendant was incarcerated elsewhere pending prosecution for murder, and (2) after the defendant entered a plea agreement in that matter, he was expeditiously arraigned on the crime at issue and trial occurred within eight months of such arraignment. Davis v. State, 750 So. 2d 552, 1999 Miss. App. LEXIS 600 (Miss. Ct. App. 1999).

The defendant was not entitled to the reversal of his conviction, notwithstanding a 501 day delay from his arrest to his trial since the only prejudice asserted was that the memory of the arresting officers had diminished but the record did not support such assertion where the primary arresting officer and the remaining officers testified regarding many details of the events surrounding the issuance of the search warrant and the subsequent search. Bryant v. State, 746 So. 2d 853, 1998 Miss. App. LEXIS 1027 (Miss. Ct. App. 1998).

The trial court did not improperly dismiss the speedy trial claim where the reasons for the delay were valid, the assertion of the right only occurred near the time of the trial, and there was no showing of actual prejudice. Hogan v. State, 730 So. 2d 94, 1998 Miss. App. LEXIS 1078 (Miss. Ct. App. 1998).

Five-year period between mistrial on defendant’s murder charge and entry of nolle prosequi of indictment, which was followed more than twenty years later by reindictment and conviction, did not violate defendant’s right to speedy trial, though length of such period was presumptively prejudicial to defendant; defendant never asserted his speedy trial rights, defendant acquiesced in delay caused by state agency’s assistance to his defense without prosecution’s knowledge, and defense was not prejudiced, as all material evidence from prior proceedings was preserved. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Defendant’s right to speedy trial was not violated by 554-day delay between arrest and trial, even though delay was due to crowded docket and weighed against state, where defendant suffered no prejudice as a result of the delay and defendant was out on bond pending trial. Skaggs v. State, 676 So. 2d 897, 1996 Miss. LEXIS 317 (Miss. 1996).

Delay may prejudice defendant, for speedy trial purposes, in two ways; delay may actually impair defendant’s ability to defend himself, and defendant may suffer because of restraints to his liberty. Skaggs v. State, 676 So. 2d 897, 1996 Miss. LEXIS 317 (Miss. 1996).

Incarceration before trial is not alone enough prejudice to warrant reversal of conviction on ground that defendant was denied speedy trial. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

In speedy trial analysis, defendant was not prejudiced by his inability to talk with potential alibi witnesses, due to his incarceration prior to trial; record mentioned names of no potential alibi witnesses who had suffered memory loss or who could not be found, and defense counsel could have traced leads at defendant’s direction. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

For speedy trial analysis, prejudice to accused encompasses both actual prejudice in defending case and prejudice from inordinate delay. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

Accused may suffer prejudice due to delay, a factor in speedy trial analysis, in form of oppressive pretrial incarceration, anxiety and concern, and impairment of defenses. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

Without evidence of absent witness’ departure date or expected testimony, accused could not show prejudice from delay in commencement of trial, a factor in speedy trial analysis; moreover, even if accused could have shown prejudice due to absent witness, he would have been barred from doing so, as he raised prejudice from absent witness for first time on appeal. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

In determining whether violation of defendant’s constitutional right to speedy trial has occurred, defendant may be prejudiced by fact that he has been detained before trial, that he has suffered anxiety as result of delay, or that his defense has been impaired by delay. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

In determining whether violation of defendant’s constitutional right to speedy trial has occurred, defendant suffers no prejudice from detention when he is out on bail. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

In determining whether violation of defendant’s constitutional right to speedy trial has occurred, where incarceration is only ground raised by defendant as basis for prejudice, reversal generally will not be required. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

In determining whether defendant has been prejudiced by delay between arrest and trial such that violation of his constitutional right to speedy trial is implicated, impairment of defendant’s defense may occur as result of witnesses dying or disappearing or of loss of memory on part of witnesses. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

In determining whether defendant has been prejudiced by delay between arrest and trial such that violation of his constitutional right to speedy trial is implicated, anxiety on part of defendant is presumed from mere fact of delay even where defendant does not complain that he has suffered anxiety. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

An aggravated assault defendant was not denied his constitutional right to a speedy trial, even though there was a delay of more than 25 months between the date of his arrest and his trial and the State blamed part of the delay on an overcrowded docket which weighed against the State, where the defendant requested a continuance of an earlier trial date, the victim had to undergo several surgical treatments and it was several months before he was physically able to proceed with the case, the defendant did not raise the speedy trial issue until more than one and 1/2 years after his arrest, and the defendant failed to show any material prejudice as a result of the delay. Stogner v. State, 627 So. 2d 815, 1993 Miss. LEXIS 531 (Miss. 1993).

A defendant was not denied his statutory or constitutional rights to a speedy trial, even though he was arrested on February 13, 1989, arraigned May 5, 1989, and his trial began March 5, 1990, where the defendant filed 15 motions before he was brought to trial which substantially contributed to the delay, the record supported the State’s position that it could not try the case until the issues of change of venue and admissibility of forensic DNA analysis had been resolved, and the defendant did not contend that the delay either diminished his defense or strengthened the State’s evidence, but stated only that he suffered “a great deal of anxiety.” Polk v. State, 612 So. 2d 381, 1992 Miss. LEXIS 820 (Miss. 1992).

Defendants did not suffer a deprivation of the right to a speedy trial, even though there was a 414-day delay between the date the defendants were arrested and the date of their trial, where a substantial part of the reason for the delay was that the defendants took no steps to secure counsel, and the delay did not operate to their substantial prejudice since there was no evidence of prejudice at trial and the defendants’ arrest resulted in their parole revocation and immediate incarceration to complete prior sentences, so that the defendants’ lives were not “put on hold” solely as a result of the delay. Jaco v. State, 574 So. 2d 625, 1990 Miss. LEXIS 823 (Miss. 1990).

Defendant was not denied her constitutional right to speedy trial, although delay was lengthy, where there were numerous reasons for delay, including defendant’s efforts to fight extradition and congested court dockets; further, defendant did not assert right to speedy trial until little over one month before trial and had failed to show any prejudice other than her continuous incarceration. Williamson v. State, 512 So. 2d 868, 1987 Miss. LEXIS 2683 (Miss. 1987), Walton v. State, 678 So. 2d 645, 1996 Miss. LEXIS 192 (Miss. 1996).

Defendant was not denied constitutional right to speedy trial despite asserting that right, when he was tried approximately 33 months after his indictment, where defendant was incarcerated in New York state prison which would not let defendant be moved to Mississippi for trial, and district attorney fulfilled his duty to make diligent, good-faith effort to have defendant returned to Mississippi for trial; defendant also made no allegation in either trial court or on appeal that he lost witnesses or was otherwise prejudiced in trial of his case. Hughey v. State, 512 So. 2d 4, 1987 Miss. LEXIS 2752 (Miss. 1987).

38. –Presumptive prejudice, speedy trial.

Delay of 15 months before defendant’s trial was presumptively prejudicial and the State did not offer a valid explanation for the delay; however, defendant’s right to a speedy trial was not denied because, while there was some delay, it was offset by (1) defendant’s failure to assert his right to a speedy trial; and (2) his failure to demonstrate any actual prejudice that witnesses were unavailable to testify as a result of the delay. Jackson v. State, 910 So. 2d 658, 2005 Miss. App. LEXIS 170 (Miss. Ct. App.), cert. denied, 904 So. 2d 184, 2005 Miss. LEXIS 402 (Miss. 2005).

From the date of arrest to the date of defendant’s trial, approximately 22 months elapsed, and that presumptive prejudice required the appellate court to consider other Barker factors relating to defendant’s right to a speedy trial. Other reasons for the delay were: (1) plea negotiations; (2) change of counsel; (3) the fact the State had to await results from the crime lab after plea negotiations failed; and (4) a preferred trial setting in another case. However, when considered as a whole, the reasons for delay favored neither party, defendant was not prejudiced by his pre-trial incarceration, his alleged demands for speedy trial had generally been in the form of motions to dismiss, and his rights under the Sixth Amendment and Miss. Const. art. III, § 26 were not violated. Grant v. State, 913 So. 2d 316, 2005 Miss. App. LEXIS 253 (Miss. Ct. App. 2005).

Delay of almost 26 months between indictment and trial warranted presumption of prejudice, thereby triggering inquiry into other constitutional speedy trial factors. (Per Pittman, J., with two Justices concurring, two Justices concurring in the result only, and one Justice concurring in part.) Kolberg v. State, 704 So. 2d 1307, 1997 Miss. LEXIS 697 (Miss. 1997).

Presumptive prejudice, requiring further inquiry into remaining factors for determining whether speedy trial violation has occurred, arises where there has been delay of eight months or more before trial. Skaggs v. State, 676 So. 2d 897, 1996 Miss. LEXIS 317 (Miss. 1996).

In speedy trial analysis, delay of 8 months is presumed prejudicial. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

In determining whether constitutional right to speedy trial has been denied, delay is triggering mechanism and must be presumptively prejudicial or analysis is halted. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

Delay of 280 days from time defendant’s constitutional right to speedy trial attached to time trial began was presumptively prejudicial for purposes of speedy trial analysis. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

Although accused was presumptively prejudiced by 280-day delay before trial, he was not denied right to speedy trial, since he failed to ask for speedy trial until trial, he moved for continuance before trial, and he failed to show prejudice from the delay. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

For purpose of constitutional speedy trial analysis, delay which is presumptively prejudicial to defendant will not require reversal in and of itself but will require that remaining factors in determining whether claim of constitutional violation is justified be examined closely. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

Delay of 409 days between arrest of defendant on charge of capital rape and commencement of trial was presumptively prejudicial, and triggered examination of remaining factors to determine whether violation of defendant’s constitutional right to speedy trial had occurred. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

A 6-month delay between a mistrial and a retrial was not “presumptively prejudicial,” and therefore the defendant’s constitutional right to a speedy trial was not violated by the delay. Handley v. State, 574 So. 2d 671, 1990 Miss. LEXIS 857 (Miss. 1990), op. withdrawn, sub. op., 1991 Miss. LEXIS 235 (Miss. Apr. 16, 1991).

A trial within approximately 90 days of the attachment of a speedy trial right does not amount to a presumptively prejudicial delay. Livingston v. State, 525 So. 2d 1300, 1988 Miss. LEXIS 223 (Miss. 1988).

39. – Timely assertion of right, speedy trial.

Defendant’s right to a speedy trial under the Sixth Amendment and Miss. Const. Art. 3, § 26 was not violated because despite the anxiety and hardship that defendant could have endured, he waited until two weeks before his initial trial date to assert his right to a speedy trial; although defendant’s motion included a request for a speedy trial, the context and timing of the motion showed that he was actually seeking dismissal, not a trial. Ben v. State, 95 So.3d 1236, 2012 Miss. LEXIS 411 (Miss. 2012), cert. denied, 569 U.S. 905, 133 S. Ct. 1723, 185 L. Ed. 2d 788, 2013 U.S. LEXIS 2589 (U.S. 2013).

There was no violation of the defendant’s constitutional right to a speedy trial, notwithstanding a delay of approximately 400 days from the date of his arrest or indictment to the date of his trial, where the defendant did not seek a dismissal until 20 days prior to going to trial and there was no demonstration of actual memory loss by witnesses which might have caused prejudice. Riggs v. State, 744 So. 2d 365, 1999 Miss. App. LEXIS 346 (Miss. Ct. App. 1999).

The defendant’s right to a speedy trial was not violated, notwithstanding a 474 day delay between his arrest and trial where the reason for the lengthy delay was that the defendant was reindicted, he did not demonstrate any prejudice to himself or his defense by the delay, and he did not assert his right to a speedy trial until two days before trial. Jamison v. State, 741 So. 2d 359, 1999 Miss. App. LEXIS 288 (Miss. Ct. App. 1999).

The defendant failed to properly assert his right to a speedy trial where he made no demand for a speedy trial before the selection of the jury. Henderson v. State, 732 So. 2d 211, 1999 Miss. LEXIS 68 (Miss. 1999).

The trial court did not improperly dismiss the speedy trial claim where the reasons for the delay were valid, the assertion of the right only occurred near the time of the trial, and there was no showing of actual prejudice. Hogan v. State, 730 So. 2d 94, 1998 Miss. App. LEXIS 1078 (Miss. Ct. App. 1998).

The defendant’s right to a speedy trial was not violated where (1) the state offered valid reasons for all of the delays from the defendant’s arrest in October of 1994 until his trial in February of 1997, (2) most of the delays were either for neutral reasons or at the request of the defense, (3) the defendant did not show any actual trial prejudice and relied entirely on the “presumed” prejudice resulting from pre-trial incarceration, and (4) the defendant did not make a demand for a speedy trial until September of 1996 when he filed his motion to dismiss, which motion was made after he agreed to continuances, moved for his own continuance, and moved for a severance from his co-defendant. Horton v. State, 726 So. 2d 238, 1998 Miss. App. LEXIS 1122 (Miss. Ct. App. 1998).

Defendant’s initial assertion of his right to speedy trial in his motion to dismiss for failure to transcribe some proceedings while defendant was represented by his original trial counsel was not equivalent of demand for speedy trial and, thus, dilatory assertion of right to speedy trial weighed against him in constitutional analysis. (Per Pittman, J., with two Justices concurring, two Justices concurring in the result only, and one Justice concurring in part.) Kolberg v. State, 704 So. 2d 1307, 1997 Miss. LEXIS 697 (Miss. 1997).

In speedy trial analysis, defendant’s failure to bring denial of speedy trial issue up until trial, as well as defendant’s motion for continuance, which could be considered as contrary to any concerns about speedy trial, weighed in favor of state. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

Late filing by defendant asserting his right to speedy trial is not fatal to defendant’s claim of violation of constitutional right to speedy trial. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

Filing of motion to dismiss for denial of defendant’s right to speedy trial 3 days prior to trial date was not fatal to defendant’s claim, but weighed less heavily than an earlier assertion of his right would have done in analysis of whether his constitutional right to speedy trial was violated. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

40. –Manner of asserting right, speedy trial.

Defendant’s embezzlement conviction was proper where his speedy trial rights were not violated because, by falsely agreeing to repay the owner, defendant avoided pursuing an indictment against him, and thus, the delay until August 2001 was a neutral factor Further, defendant did not diligently pursue a speedy trial. Crimm v. State, 888 So. 2d 1178, 2004 Miss. App. LEXIS 933 (Miss. Ct. App. 2004).

Assertion of constitutional right to speedy trial need not be in writing. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

41. – Failure to assert rights, speedy trial.

There was no violation of defendant’s constitutional right to a speedy trial, where defendant never demanded a speedy trial, did not mention the right for almost three years, and when defendant finally did raise the issue, his trial was only four months away. More importantly, defendant failed to articulate any prejudice whatsoever. Collins v. State, 232 So.3d 739, 2017 Miss. App. LEXIS 297 (Miss. Ct. App.), cert. denied, 229 So.3d 123, 2017 Miss. LEXIS 493 (Miss. 2017).

Defendant failed to raise a speedy trial issue at trial, making his claim on direct appeal procedurally barred. Terrell Patrick Corvette Hopper v. State, 220 So.3d 224, 2017 Miss. App. LEXIS 176 (Miss. Ct. App. 2017), cert. denied, — So.3d —, 2018 Miss. LEXIS 28 (Miss. 2018), cert. denied, — So.3d —, 2018 Miss. LEXIS 29 (Miss. 2018), cert. denied, — So.3d —, 2018 Miss. LEXIS 32 (Miss. 2018).

Defendant’s claims for speedy trial violations neither established a plain-error basis to justify further appellate review, nor evidenced a miscarriage of justice; regarding delay, the record reflected that defendant assented to the entry of nine separate “Agreed Orders of Continuance” and filed numerous pre-trial motions, and defendant did not suffer prejudice due to a change in a witness’s testimony. Dora v. State, 986 So. 2d 917, 2008 Miss. LEXIS 308 (Miss. 2008), cert. denied, 555 U.S. 1142, 129 S. Ct. 1009, 173 L. Ed. 2d 302, 2009 U.S. LEXIS 780 (U.S. 2009).

Defendant’s right to a speedy trial did not automatically warrant reversal of defendant’s conviction for an alleged violation of the right; rather, a balancing test was conducted, and moreover, defendant’s demand for a dismissal of the charge based on an alleged violation of the right to a speedy trial was not the same as the demand for a speedy trial. Guice v. State, 952 So. 2d 129, 2007 Miss. LEXIS 9 (Miss.), cert. denied, 552 U.S. 1042, 128 S. Ct. 645, 169 L. Ed. 2d 515, 2007 U.S. LEXIS 12594 (U.S. 2007).

Defendant was not denied his right to a speedy trial where he never asserted the right to a speedy trial, and the record showed that he was trying to avoid a trial, rather than assert his right to a speedy trial. He did not appear at his first scheduled trial and twice fired attorneys shortly before other trial dates were set to occur. Bindon v. State, 926 So. 2d 222, 2005 Miss. App. LEXIS 701 (Miss. Ct. App. 2005).

There was no violation of defendant’s constitutional right to a speedy trial because defendant was responsible for much of the extraordinary 37-month lapse of time between his arrest and his trial due to his failure to provide necessary documentation to the hospital for a mental examination, his preparation for trial, and the illness of his counsel. Also defendant failed to assert his right to a speedy trial and to show any real prejudice that outweighed any delay resulting from the trial court’s schedule. Jones v. State, 902 So. 2d 593, 2004 Miss. App. LEXIS 1011 (Miss. Ct. App. 2004), cert. denied, 901 So. 2d 1273, 2005 Miss. LEXIS 336 (Miss. 2005).

Defendant failed to raise the issue of denial of a speedy trial in his motion for a new trial; there was no trial court order to review, no findings on the record, no response from the State as to the pre-indictment delay; there was nothing to indicate that the State delayed bringing defendant to trial for any prejudicial or improper reason; and there was nothing in the record to indicate any prejudice to defendant by the delay; thus, there was simply nothing at all for the appellate court to review. Therefore, the pre-indictment speedy trial issue was not properly before the appellate court. Young v. State, 2004 Miss. LEXIS 588 (Miss. May 27, 2004), op. withdrawn, sub. op., 891 So. 2d 813, 2005 Miss. LEXIS 40 (Miss. 2005).

While the length of delay was presumptively prejudicial and the State offered no legitimate reason for the delay, defendant failed to demand a speedy trial and failed to show any resulting prejudice; thus, defendant’s right to a speedy trial was not violated. Green v. State, 856 So. 2d 396, 2003 Miss. App. LEXIS 233 (Miss. Ct. App. 2003), rev'd, in part, 884 So. 2d 733, 2004 Miss. LEXIS 714 (Miss. 2004).

The defendant’s constitutional right to speedy trial was not violated, notwithstanding that 11 months elapsed from the time of his arrest to his trial and that the state did not show good cause for the delay, where (1) although the defendant was imprisoned for a period of time before trial, most, if not all, of his period of imprisonment stemmed from his parole revocation and conviction on subsequent criminal charges, and (2) he did not assert his right to a speedy trial until nine months after his arrest. Jones v. State, 756 So. 2d 852, 2000 Miss. App. LEXIS 76 (Miss. Ct. App. 2000).

The defendant was not denied his constitutional right to a speedy trial, notwithstanding a delay of about 1051 days from his arrest to the commencement of trial, where (1) much of the delay was attributable to the defendant, (2) the delays attributable to the state were necessary for pre-trial business such as the appointment of counsel, a preliminary hearing, the indictment and arraignment, the hearing of several defense motions, the appointment of additional counsel, the granting of a defense expert, the hearing of more motions, a rule on expert fees, and the hearing of a suppression motion, (3) the defendant did not request a speedy trial and only moved for dismissal for the denial of a speedy trial, and (4) there was no prejudice shown by the defendant. Brewer v. State, 725 So. 2d 106, 1998 Miss. LEXIS 345 (Miss. 1998), cert. denied, 526 U.S. 1027, 119 S. Ct. 1270, 143 L. Ed. 2d 365, 1999 U.S. LEXIS 2032 (U.S. 1999).

The defendant’s right to a speedy trial was not violated where (1) the case was twice continued, first by agreement of the parties, and, next due to a conflict with other trials, (2) there was no actual prejudice to the defendant other than his continued incarceration, and (3) the defendant did not demand a speedy trial until two months before trial when he made a motion to dismiss for failure to try. Rhyne v. State, 741 So. 2d 1049, 1999 Miss. App. LEXIS 472 (Miss. Ct. App. 1999).

The defendant’s right to a speedy trial was not violated where (1) the length of the delay was 390 days, (2) the defendant did not raise the speedy trial issue until his motion to dismiss was made on the day of the trial, and (3) the defense was not prejudiced in any way by the delay, notwithstanding the contention that the victim’s recollection would have been fresher and she would not have “misidentified” the defendant if he had been tried more promptly. Evans v. State, 742 So. 2d 1205, 1999 Miss. App. LEXIS 442 (Miss. Ct. App. 1999).

The defendant was not forced to choose between his constitutional right to confront a witness against him and his constitutional and statutory rights to a speedy trial when he chose to waive his right to confront an absent chain-of-custody witness and where the trial court questioned him about his decision to go to trial instead of waiting until the next term of court when the witness would be available to testify. Jamison v. State, 741 So. 2d 359, 1999 Miss. App. LEXIS 288 (Miss. Ct. App. 1999).

The defendant waived his right to a speedy trial where he failed to complain about speedy trial issues before pleading guilty. Finley v. State, 739 So. 2d 425, 1999 Miss. App. LEXIS 199 (Miss. Ct. App. 1999).

A 419 day delay between arraignment and trial was not a violation of the defendant’s constitutional right to speedy trial where (1) 199 days were attributable to motions for continuances and substitutions of counsel by the defendant, (2) 97 days were attributable to an overcrowded court docket, (3) the defendant failed to assert his right to speedy trial until the day of trial, and (4) the defendant failed to show prejudice. Black v. State, 724 So. 2d 996, 1998 Miss. App. LEXIS 1046 (Miss. Ct. App. 1998).

Defendant failed to establish speedy trial violation in connection with delay of more than 18 months between his arrest and his indictment and trial, particularly as defendant failed to point to any evidence establishing reason for delay or showing how he was prejudiced, and defendant never asserted his right to speedy trial. Sanders v. State, 678 So. 2d 663, 1996 Miss. LEXIS 300 (Miss. 1996).

Defendant has some responsibility to assert right to speedy trial, although state has duty to ensure that defendant receives speedy trial. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Defendant’s failure to ask for speedy trial is not dispositive in speedy trial analysis, but must be weighed against other factors. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Although defendant is not required to demand speedy trial, his assertion of such right will weigh more heavily in his favor when determining whether his constitutional right to speedy trial has been violated. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

A defendant was denied his constitutional right to a speedy trial where 610 days elapsed from the date of indictment to the date of trial, even though the defendant failed to assert his right to a speedy trial. Although a defendant may have some responsibility to assert his or her speedy trial claim, the primary burden is on the courts and the prosecutors to assure that cases are brought to trial. Thus, the defendant’s failure to “consistently badger” the prosecution to proceed with his trial did not eliminate his claim that he was denied a speedy trial. Flores v. State, 574 So. 2d 1314, 1990 Miss. LEXIS 851 (Miss. 1990).

A request for a speedy trial is mandatory. New Orleans Baptist Theological Seminary v. Lacy, 219 So. 2d 673, 1969 Miss. LEXIS 1426 (Miss. 1969).

42. – Right not violated, speedy trial.

Defendant’s constitutional right to a speedy trial under the Sixth Amendment was not violated, as the State showed good cause for the delay of more than 17 months due to an overcrowded docket, the delay was not deliberate, defendant did not effectively demand a speedy trial but asked for a dismissal based on the failure to provide him a speedy trial, and defendant did not demonstrate any prejudice resulting from the delay. Hurst v. State, 195 So.3d 736, 2016 Miss. LEXIS 244 (Miss. 2016).

Other than his assertion of prejudice, defendant offered no substantiation for his claim of prejudice; having conducted an analysis of the Barker factors, and considering the case in its totality, there was no actionable violation of defendant’s constitutional right to a speedy trial. Clark v. State, 14 So.3d 779, 2009 Miss. App. LEXIS 486 (Miss. Ct. App. 2009).

Defendant’s speedy trial rights were not denied by a sixteen-month delay because there was nothing in the record to suggest any impairment of the defense. None of the witnesses for either the State or defendant were unavailable due to the delay in his trial, and there was also no claim of loss of evidence. Booker v. State, 5 So.3d 411, 2008 Miss. App. LEXIS 77 (Miss. Ct. App.), aff'd, 5 So.3d 356, 2008 Miss. LEXIS 519 (Miss. 2008).

In defendant’s driving under the influence case, defendant’s right to a speedy trial was not violated because, assuming arguendo that the applicable date of arrest was April 9, 2004, a “presumptively prejudicial” 473-day period of the delay was attributable to the State, however, defendant failed to make timely demand for a speedy trial or to establish any prejudice to his defense as a result of the delay. Murray v. State, 967 So. 2d 1222, 2007 Miss. LEXIS 618 (Miss. 2007).

Defendant’s conviction and sentence for strong-arm robbery was proper where he failed to show any constitutional speedy trial violations. He caused the delay, failed to assert his right to a speedy trial, and failed to show any resulting prejudice. Johnson v. State, 904 So. 2d 1203, 2004 Miss. App. LEXIS 1031 (Miss. Ct. App. 2004).

43. –Burden of proof, speedy trial.

When length of pretrial delay is presumptively prejudicial, burden of persuasion is on state to show that delay did not prejudice defendant and violate his speedy trial rights. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

State bears burden of providing defendant with speedy trial; therefore, delay that is not attributable to defendant counts against the state, unless state can show good cause for the delay. Skaggs v. State, 676 So. 2d 897, 1996 Miss. LEXIS 317 (Miss. 1996).

Accused is not required to put forth affirmative showing of prejudice to prove his right to speedy trial was violated; nevertheless absence of prejudice weighs against finding of violation. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

Where a defendant contended that his statutory and constitutional rights to a speedy trial were violated because he was tried more than 600 days after his arrest and arraignment, the State bore the burden of positively demonstrating that the backlog of drug cases in the court system and the state crime lab, which were alleged to be the reasons for the delay, actually caused the delay in that particular case. McGee v. State, 608 So. 2d 1129, 1992 Miss. LEXIS 204 (Miss.), modified, (Miss. 1992).

44. – Sufficiency of evidence, speedy trial.

The defendant was not denied his constitutional right to a speedy trial, notwithstanding a two year delay, because (1) the defendant did not raise a speedy trial issue at trial and, therefore, the prosecutor had no reason to present evidence justifying the delay, and (2) there was no undue prejudice, notwithstanding the defendant’s assertion that the victim was more robust and that the defendant was on crutches at the time of the incident at issue, while the victim had diminished in size and the defendant had developed a more muscular build at the time of trial. Winters v. State, 797 So. 2d 307, 2001 Miss. App. LEXIS 136 (Miss. Ct. App. 2001).

The defendant’s right to a speedy trial was not violated, notwithstanding a delay between arrest and trial of about one and a half years, where no reason was given for the delay, the defendant asserted his right to a speedy trial just prior to trial, and no prejudice was shown. Forrest v. State, 782 So. 2d 1260, 2001 Miss. App. LEXIS 124 (Miss. Ct. App. 2001).

The defendant’s constitutional right to a speedy trial was not violated, notwithstanding a 970 day delay from arrest to trial, because (1) the defendant failed to provide any examples of the failure of the state to provide timely discovery material and frequently requested or consented to a number of continuances, (2) the defendant made little attempt to expedite the proceedings against him and, when he finally asserted his right to a speedy trial, it was not done in a timely fashion, and (3) the defendant failed to provide any specific example of how his defense was hampered by delay. Mitchell v. State, 792 So. 2d 192, 2001 Miss. LEXIS 76 (Miss. 2001), cert. denied, 535 U.S. 933, 122 S. Ct. 1308, 152 L. Ed. 2d 218, 2002 U.S. LEXIS 1623 (U.S. 2002).

The defendant was not denied his constitutional right to speedy trial, notwithstanding that the state failed to seek temporary custody of the defendant for trial while he was imprisoned in Florida after the defendant formally demanded that his constitutional right to speedy trial be honored, because the only prejudice he alleged for the delay in being tried in Mississippi was the fact that he was prevented from the possibility of serving his Florida sentence and any possible Mississippi sentence concurrently. Cressionnie v. State, 797 So. 2d 289, 2001 Miss. App. LEXIS 113 (Miss. Ct. App. 2001).

The defendant’s constitutional right to a speedy trial was not violated, notwithstanding that his trial occurred more than eight months after his arrest, where (1) the main reason for the overall delay in bringing the case to trial was the state’s negligence in preparing the indictment which had to be corrected twice, (2) the defendant never moved for a speedy trial and never requested a trial date and, instead, moved to dismiss on speedy trial grounds approximately one and one-half years after his arrest, and (3) the defendant experienced no prejudice due to the delay. Fulgham v. State, 770 So. 2d 1021, 2000 Miss. App. LEXIS 488 (Miss. Ct. App. 2000).

The defendant was not denied his constitutional right to a speedy trial, notwithstanding a 20-month period between the defendant’s arrest and his trial, where (1) one of the primary reasons for the delay was the defendant’s and his co-defendants’ motion to sever, (2) the defendant did not assert his right to or demand a speedy trial, although he did move for dismissal for violation of his right to a speedy trial, and (3) the defendant alleged no actual harm to his defense. Armstrong v. State, 771 So. 2d 988, 2000 Miss. App. LEXIS 540 (Miss. Ct. App. 2000).

The defendant’s constitutional right to a speedy trial was not violated where his original indictment for robbery with a deadly weapon was dismissed without prejudice because of the state’s violation of his statutory right to speedy trial, and he was subsequently reindicted for the same crime; there was no prejudice to the defendant, notwithstanding his assertion that he could not locate a material witness, as he made little effort to locate this witness after the original indictment and made no effort to locate the witness after the reindictment, and the defendant had to assume responsibility for delays due to requested continuances. Thompson v. State, 773 So. 2d 955, 2000 Miss. App. LEXIS 375 (Miss. Ct. App. 2000).

The defendant was not denied his constitutional right to a speedy trial, notwithstanding a delay of 14 months and the prompt assertion of his right to a speedy trial, where (1) the delay was caused by docket congestion, ongoing discovery, and other causes beyond the control of the state, and (2) although the defendant remained incarcerated during the delay, such delay did not prejudice his defense. Humphrey v. State, 759 So. 2d 368, 2000 Miss. LEXIS 101 (Miss. 2000).

The defendant’s right to a speedy trial was not violated, notwithstanding a 15 month delay between indictment and trial, where much of the delay was caused by the fact that the defendant had five different attorneys appointed to represent him over that period, the defendant did not assert his right to a speedy trial until 10 days before trial, and the defendant suffered no prejudice. Stokes v. State, 758 So. 2d 452, 2000 Miss. App. LEXIS 132 (Miss. Ct. App. 2000).

There was no violation of the defendant’s constitutional right to a speedy trial, notwithstanding a 471 day delay, where the defendant either joined or initiated continuances for all but 54 days of the delay, and she suffered no prejudice as shown by the fact that she claimed that she needed more time to prepare for trial. Taylor v. State, 754 So. 2d 598, 2000 Miss. App. LEXIS 25 (Miss. Ct. App. 2000).

The state observed the defendant’s right to a speedy trial where (1) the time period between arrest and trial was about 11 months, (2) the delay was caused, in part, by a congested court docket, (3) the defendant asserted his right to a speedy trial about nine months after his arrest, and (4) no prejudice was caused by the delay. Jones v. State, 1999 Miss. App. LEXIS 613 (Miss. Ct. App. Nov. 9, 1999).

The defendant’s right to a speedy trial was not violated where (1) the delay between arrest and trial was 574 days, (2) a significant portion of the delay was attributable to a series of defense motions filed over a seven month period, (3) the defendant never asserted his right to a speedy trial, and (4) the defense at trial did not suffer due to the passage of time. Brown v. State, 749 So. 2d 82, 1999 Miss. LEXIS 344 (Miss. 1999).

Defendant failed to show that he was prejudiced by any speedy trial violation in delay in bringing him to trial on charge of capital murder; defendant did not claim that, because of delay, witnesses scheduled to testify for defense disappeared or that any evidence was lost or destroyed, and there was no showing that defendant could not defend against charge or that State engaged in oppressive conduct. (Per Pittman, J., with two Justices concurring, two Justices concurring in the result only, and one Justice concurring in part.) Kolberg v. State, 704 So. 2d 1307, 1997 Miss. LEXIS 697 (Miss. 1997).

Defendant was not entitled to appointed counsel in pursuing further discretionary review following affirmance of conviction; thus, defendant could not claim ineffective assistance based on counsel’s failure to inform him of affirmance in time to file timely petition for rehearing. Harris v. State, 704 So. 2d 1286, 1997 Miss. LEXIS 47 (Miss.), cert. denied, 522 U.S. 827, 118 S. Ct. 90, 139 L. Ed. 2d 47, 1997 U.S. LEXIS 4857 (U.S. 1997).

Defendant failed to adequately demonstrate violation of fundamental right regarding his claim of speedy trial violation in connection with delay of more than 18 months between his arrest and his indictment and trial and, thus, reviewing court would not use rule of plain error to hear speedy trial issue, which was not raised in trial court; defendant’s discussion of issue on appeal was brief and did not state how delay violated his rights. Sanders v. State, 678 So. 2d 663, 1996 Miss. LEXIS 300 (Miss. 1996).

Defendant was not denied right to speedy trial by delay of 1,027 days between arrest and start of trial; delays were caused by plea bargaining, 3 continuances, 2 changes of defense counsel, motion for change of venue, and requests by defense for additional discovery and trial preparation. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

On a record showing a largely unexplained delay of almost 400 days in bringing the accused to trial, aggravated by some 216 unjustified days in delay following the accused’s demand that he be brought to trial, and applying the familiar balancing test, the accused’s right to a speedy trial was violated and he was required to be discharged. Beavers v. State, 498 So. 2d 788, 1986 Miss. LEXIS 2772 (Miss. 1986).

45. –Waiver, speedy trial.

Inmate’s right to a speedy trial under U.S. Const. Amend. VI and Miss. Const. Art. III, § 26 was waived when the inmate entered a guilty plea to the charges. Battaya v. State, 861 So. 2d 364, 2003 Miss. App. LEXIS 1201 (Miss. Ct. App. 2003).

Inmate’s petition for postconviction relief on grounds that his counsel was ineffective for failing to inform him of his right to a speedy trial was denied, as the record showed he had been advised of his right to a speedy trial, and by his guilty plea had waived his constitutional and statutory rights to a speedy trial. Turner v. State, 864 So. 2d 288, 2003 Miss. App. LEXIS 679 (Miss. Ct. App. 2003), cert. denied, 864 So. 2d 282, 2004 Miss. LEXIS 35 (Miss. 2004).

Failure by defendant to assert his constitutional right to speedy trial does not constitute waiver of such right. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

46. –Habitual offender adjudication, speedy trial.

A defendant’s right to a speedy trial was not violated, even though 6 years elapsed between the date of indictment and the actual determination of the defendant’s habitual offender status, since habitual offender status is not a crime in and of itself, but is merely a status which enhances the sentence imposed for the conviction of an offense, and, therefore, the determination of habitual offender status is not an “offense” to which the right to a speedy trial would apply. Gray v. State, 605 So. 2d 791, 1992 Miss. LEXIS 481 (Miss. 1992).

A defendant was denied his constitutional right to a speedy trial, even though he did not assert his right to a speedy trial until 5 days before trial began, where 370 days elapsed between the date he was arrested and the date his trial began and, because the defendant was convicted in federal court on the charge of making a false statement in the acquisition of a firearm 279 days after his arrest in the case in question, the delay resulted in the defendant being sentenced as an habitual offender. Smith v. State, 550 So. 2d 406, 1989 Miss. LEXIS 455 (Miss. 1989).

47. – Retrial, speedy trial.

The defendant’s constitutional right to a speedy trial was not violated as to a retrial which followed a mistrial since only 165 days elapsed between the mistrial and the retrial and such delay did not constitute presumptive prejudice. Bryant v. State, 746 So. 2d 853, 1998 Miss. App. LEXIS 1027 (Miss. Ct. App. 1998).

A defendant was denied his constitutional right to a speedy retrial where there was a 288-day delay which was presumptively prejudicial, the prosecution offered only the court’s docket pages as evidence, there was no evidence in the record justifying the delay or rebutting the presumption of prejudice, and the defendant had made a demand for a speedy retrial on October 13, 1987 and the prosecution did nothing until the defendant moved to dismiss in February of 1988. State v. Ferguson, 576 So. 2d 1252, 1991 Miss. LEXIS 113 (Miss. 1991).

A defendant was not denied his right to a speedy trial, even though his retrial did not commence until 383 days after the reversal of his original conviction, where part of the delay could be attributed to the logistics of a change in venue, the defendant apparently did not assert his right to a speedy trial, and there was no prejudice, particularly since it was in the defendant’s best interest that the retrial be delayed as both parties searched to secure the attendance of a witness whom the defendant claimed was critically important to have as a live eyewitness at trial; the delay did not violate §99-17-1 since the 270-day rule does not apply to retrials. Mitchell v. State, 572 So. 2d 865, 1990 Miss. LEXIS 722 (Miss. 1990).

Defendant’s speedy trial rights were not violated by his retrial approximately 352 days after mistrial where some of the delay was caused by overcrowded dockets necessitating continuances, the defendant failed to assert his right until approximately 3 weeks before his retrial was scheduled to begin, and defendant failed to show prejudice resulting from the delay. Kinzey v. State, 498 So. 2d 814, 1986 Miss. LEXIS 2849 (Miss. 1986).

Where, in a murder prosecution, three trials of the defendant were initiated within two years of the crime, one ending in a mistrial and two resulting in convictions, but both convictions were reversed for improper instructions or improper argument by the prosecutor, and the defendant alleged harassment by the state, the defendant would not be released and the prosecution terminated, the sequence of events in the proceedings not constituting a denial of the defendant’s rights to due process and a speedy trial. Smith v. State, 220 So. 2d 313, 1969 Miss. LEXIS 1453 (Miss. 1969).

48. –Remedies, speedy trial.

Sole remedy for denial of defendant’s right to speedy trial is dismissal of charges against him. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

The proper remedy for denial of a defendant’s right to a speedy sentencing is to vacate the sentence and release the defendant from custody. Trotter v. State, 554 So. 2d 313, 1989 Miss. LEXIS 496 (Miss. 1989), overruled in part, Betterman v. Montana, — U.S. —, 136 S. Ct. 1609, 194 L. Ed. 2d 723, 2016 U.S. LEXIS 3349 (U.S. 2016).

49. –Habeas corpus, speedy trial.

Habeas corpus petitioner failed to show cause for procedural default of his speedy trial claim, where he failed to demonstrate any objective external factor that impeded his counsel’s ability to raise speedy trial challenge on direct appeal, and he failed to allege that his counsel’s failure to raise challenge was product of ineffective assistance of counsel. Martin v. Maxey, 98 F.3d 844, 1996 U.S. App. LEXIS 28836 (5th Cir. Miss. 1996).

50. –Review, speedy trial.

Although there was a 21-year delay for defendant’s criminal appeal to be heard, there was no constitutional right to a speedy appeal and the denial of a speedy appeal was not reversible error where there were no other errors of merit. Crawford v. State, 192 So.3d 905, 2015 Miss. LEXIS 445 (Miss. 2015), cert. denied, — U.S. —, 136 S. Ct. 2527, 195 L. Ed. 2d 855, 2016 U.S. LEXIS 4084 (U.S. 2016).

Where defendant did not raise the issue below, an assertion that her speedy trial rights were violated in a manslaughter case was not heard on review since an appellate court was not equipped to be a fact finder. Miller v. State, 956 So. 2d 221, 2007 Miss. LEXIS 278 (Miss. 2007).

Defendant failed to adequately demonstrate violation of fundamental right regarding his claim of speedy trial violation in connection with delay of more than 18 months between his arrest and his indictment and trial and, thus, reviewing court would not use rule of plain error to hear speedy trial issue, which was not raised in trial court; defendant’s discussion of issue on appeal was brief and did not state how delay violated his rights. Sanders v. State, 678 So. 2d 663, 1996 Miss. LEXIS 300 (Miss. 1996).

51. –Postconviction relief, speedy trial.

Inmate’s voluntary act of pleading guilty to the crime of manslaughter foreclosed an appellate court from considering issues relating to the voluntariness of a confession or the right to a speedy trial in a motion seeking post-conviction relief. Young v. State, 877 So. 2d 552, 2004 Miss. App. LEXIS 669 (Miss. Ct. App. 2004).

Defendant’s delay of nearly seven years waived his right to use postconviction petition to challenge sentencing delay as violation of his right to speedy trial. Marshall v. State, 680 So. 2d 794, 1996 Miss. LEXIS 486 (Miss. 1996).

52. –Direct appeal bar, speedy trial.

Habeas corpus petitioner failed to demonstrate that Mississippi’s direct appeal bar was not strictly and directly applied near time of petitioner’s direct appeal to cases involving speedy trial claims direct appeal raised for first time on collateral review, as required to render bar inadequate as procedural bar. Martin v. Maxey, 98 F.3d 844, 1996 U.S. App. LEXIS 28836 (5th Cir. Miss. 1996).

53. Impartial jury – In general.

Trial court properly denied defendant’s motion to quash a venire because defendant did not show that the exclusion of persons with surnames beginning with “T-Z,” which was due to an algorithm used by the county’s computer system, disproportionally affected any distinctive group in the county; defendant failed to meet the burden of showing that the jury did not represent a fair cross-section of the community. Presley v. State, 9 So.3d 442, 2009 Miss. App. LEXIS 213 (Miss. Ct. App. 2009).

Appellant inmate asserted that he was denied his constitutional rights to notice and jury trial guarantees under the Sixth Amendment but that issue was raised on direct appeal and decided adversely to the inmate; he had been convicted of capital murder and sentenced to death. The inmate did not demonstrate a novel claim or a sudden reversal of law relative to these issues that would have exempted a single one of those claims from the procedural bar of res judicata; in fact, he again relied on Apprendi just as he did on direct appeal but the issue was without merit and currently barred. Havard v. State, 988 So. 2d 322, 2008 Miss. LEXIS 264 (Miss. 2008).

There was no evidence of prejudicial effect on the jury by the judge’s comments concerning the drug court where the defense did not object once the jury was empaneled and the jury indicated it would fairly decide the case on the facts and law presented; defendant presented no evidence that the judge’s comments had a prejudicial effect on the jury except for the fact that they ultimately found him guilty, and the content of the remarks made by the judge were merely informative and could not be deemed inflammatory. Flake v. State, 948 So. 2d 493, 2007 Miss. App. LEXIS 47 (Miss. Ct. App. 2007).

In a capital murder case, excusing a juror who responded affirmatively when asked if any jurors could not read or write did not violate defendant’s constitutional right to an impartial jury; the requirement of Miss. Code Ann. §13-5-1 that a juror be able to read and write is a reasonable and nondiscriminatory regulation that operates equally against all persons tried by juries. Dycus v. State, 875 So. 2d 140, 2004 Miss. LEXIS 366 (Miss. 2004), vacated, 544 U.S. 901, 125 S. Ct. 1589, 161 L. Ed. 2d 271, 2005 U.S. LEXIS 2212 (U.S. 2005).

Any problems with media coverage or prior knowledge concerning a trial and the impartiality of a jury could be and were sufficiently cured through a proper and thorough voir dire of the potential jurors; thus, defendant’s right to an impartial jury under the Sixth Amendment was not compromised by the identification of the defendant and the victim in the case through a questionnaire that had been mailed to the venire several weeks prior to jury selection. Crawford v. State, 867 So. 2d 196, 2003 Miss. LEXIS 755 (Miss. 2003), cert. denied, 543 U.S. 866, 125 S. Ct. 205, 160 L. Ed. 2d 110, 2004 U.S. LEXIS 6519 (U.S. 2004).

Until instructed otherwise by the U.S. Supreme Court, the Mississippi Supreme Court declines to apply Ring v. Arizona retroactively. Stevens v. State, 867 So. 2d 219, 2003 Miss. LEXIS 822 (Miss. 2003), cert. denied, 543 U.S. 858, 125 S. Ct. 222, 160 L. Ed. 2d 96, 2004 U.S. LEXIS 6409 (U.S. 2004).

Two veniremembers were properly excused for cause where they stated unequivocally that they could not vote for imposition of the death penalty; potential jurors may be dismissed when their views would prevent or substantially impair the performance of their duties as jurors in accordance with their instructions and their oaths. Wilcher v. State, 863 So. 2d 719, 2003 Miss. LEXIS 526 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

The defendant was not denied a fair trial when the trial court refused to quash the venire on the basis that, of the entire venire of 47 jurors selected for service, 16 had been exposed to pretrial publicity, where those 16 jurors were removed from the venire. Baldwin v. State, 732 So. 2d 236, 1999 Miss. LEXIS 76 (Miss. 1999).

The fact that a prospective juror lives in a high drug and high crime area is a race neutral reason for the exercise of a peremptory challenge. Baldwin v. State, 732 So. 2d 236, 1999 Miss. LEXIS 76 (Miss. 1999).

A defendant’s rights under the Confrontation Clause do not extend to the opportunity to impeach the state’s primary witness through the testimony of a witness favorable to the defense. Johnson v. Puckett, 176 F.3d 809, 1999 U.S. App. LEXIS 9698 (5th Cir. Miss. 1999).

In a forgery prosecution, the defendant was not denied his right to confront one of the two persons authorized to sign the checks that he allegedly signed, notwithstanding that the state did not present that person as a witness, since the defendant had every opportunity to subpoena that person and call him as a witness if he believed his testimony would have helped substantiate a defense. Robinson v. State, 1999 Miss. App. LEXIS 320 (Miss. Ct. App. June 8, 1999).

In a prosecution for defrauding the state government and uttering forgery, where the court erroneously permitted a state investigator to testify regarding insurance investigative reports that he was not involved in preparing, the defendant was denied his right to confront the insurance adjuster who investigated and prepared the files. Logan v. State, 1999 Miss. App. LEXIS 182 (Miss. Ct. App. Apr. 20, 1999), rev'd, 2000 Miss. LEXIS 128 (Miss. May 25, 2000).

In a prosecution for drive-by shooting, the near identity of the relevant details in all four statements of both codefendants combined with each defendants’ admission that he shot from within the automobile, established a particularized guarantee of trustworthiness that permitted the trial court’s introduction of the codefendant’s written and videotaped confessions, even though those confessions contained admittedly hearsay statements. Moore v. State, 1999 Miss. App. LEXIS 204 (Miss. Ct. App. Apr. 20, 1999), rev'd, 754 So. 2d 1159, 2000 Miss. LEXIS 2 (Miss. 2000).

A defendant charged with contempt of court has no right to a trial by jury. Walls v. Spell, 722 So. 2d 566, 1998 Miss. LEXIS 495 (Miss. 1998).

No right to a jury trial exists where the defendant is prosecuted for multiple petty offenses. Walls v. Spell, 722 So. 2d 566, 1998 Miss. LEXIS 495 (Miss. 1998).

Jury is to consider only evidence developed at trial in determining its verdict. Collins v. State, 701 So. 2d 791, 1997 Miss. LEXIS 520 (Miss. 1997).

A murder defendant was not denied a fair trial by virtue of the fact that 9 of the 42 members of the regular and special venire panels had relatives who had been murdered where 7 of the members of the venire who had had relatives murdered did not serve on the jury and the defense had sufficient peremptory challenges remaining to remove the other 2 jurors if they so desired. Shell v. State, 554 So. 2d 887, 1989 Miss. LEXIS 492 (Miss. 1989), rev'd, in part, 498 U.S. 1, 111 S. Ct. 313, 112 L. Ed. 2d 1, 1990 U.S. LEXIS 5501 (U.S. 1990).

A plaintiff in a medical malpractice case was denied her right to an impartial jury where there were over 40,000 persons in the county from which a jury could have been drawn and the plaintiff was limited to a jury pool of 25, 48 percent of which were connected in some way to the defendant doctor, because of the “statistical aberration” of the makeup of the venire and the strong likelihood that the opportunity for undue influence over other jurors in the case was too great. Hudson v. Taleff, 546 So. 2d 359, 1989 Miss. LEXIS 299 (Miss. 1989).

It is within the sound discretion of the trial judge to permit jurors to take notes during the trial in cases where it is deemed desirable or necessary in complicated matters or where both parties agree that jurors may take notes. When jurors are allowed to take notes, the judge should give directions and set limitations on the use of the notes. Wash v. State, 521 So. 2d 890, 1988 Miss. LEXIS 115 (Miss. 1988), overruled, Wharton v. State, 734 So. 2d 985, 1998 Miss. LEXIS 576 (Miss. 1998).

In a prosecution for the sale of marijuana, the defendant was denied his right to an impartial jury where, in the presence of the jury, the trial judge accepted a plea of guilty to the same charge from a codefendant and sentenced the codefendant to prison and where the prosecutor in closing argument characterized the jurors as “law enforcement personnel” and, in comparing the criminal justice system to a chain, made the “grand jury link” the same as the other links. Fulgham v. State, 386 So. 2d 1099, 1980 Miss. LEXIS 2042 (Miss. 1980).

The right to a trial by an impartial jury is guaranteed by the federal constitution and the state constitution. Adams v. State, 220 Miss. 812, 72 So. 2d 211, 1954 Miss. LEXIS 500 (Miss. 1954).

In addition to the right to be tried by fair, unprejudiced, individual jurors, guided by the evidence the right to “fair and impartial trial” means the right to be tried in an atmosphere in which public opinion is not saturated with bias, hatred and prejudice against the defendant. Seals v. State, 208 Miss. 236, 44 So. 2d 61, 1950 Miss. LEXIS 242 (Miss. 1950).

When sixty-five percent of jurors examined to try defendant accused of murder say that they either have fixed opinions which cannot be changed by evidence or that they are so biased or prejudiced against him that they cannot give him a fair trial, it is impossible for accused to obtain fair and impartial trial in county and motion for change of venue should be granted. Seals v. State, 208 Miss. 236, 44 So. 2d 61, 1950 Miss. LEXIS 242 (Miss. 1950).

54. –Statutes and court rules, impartial jury.

Defendant had no constitutional right to a jury trial on the issue of habitual-offender status. Johnson v. State, 29 So.3d 738, 2009 Miss. LEXIS 610 (Miss. 2009).

The literacy and age requirements of §13-5-1 do not violate the constitutional rights of accused persons to be tried by an impartial jury. The literacy requirements of the statute are constitutional, and the statute does not bar persons over 65 years of age from serving on a jury, but merely grants those individuals the privilege to claim an exemption should they desire not to serve. Wilson v. State, 574 So. 2d 1324, 1990 Miss. LEXIS 845 (Miss. 1990).

Mississippi’s exemption of jurors who are illiterate or under 21 years of age, pursuant to §13-5-1, or over 65 years of age, pursuant to §13-5-25, did not violate the defendant’s rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution.Turner v. State, 573 So. 2d 657, 1990 Miss. LEXIS 792 (Miss. 1990), cert. denied, 500 U.S. 910, 111 S. Ct. 1695, 114 L. Ed. 2d 89, 1991 U.S. LEXIS 2522 (U.S. 1991).

55. –Administrative proceedings, impartial jury.

In disciplinary proceedings, attorneys have no right to trial by jury. Mississippi State Bar v. Young, 509 So. 2d 210, 1987 Miss. LEXIS 2600 (Miss. 1987).

56. – Qualification as juror, impartial jury.

The defendant, who was under 21 years old, was not denied his Sixth Amendment fair cross-section right by the fact that a qualified juror is defined, in part, as being over the age of 21. Williams v. State, 772 So. 2d 1113, 2000 Miss. App. LEXIS 572 (Miss. Ct. App. 2000).

Defendant was not entitled to habeas relief based on alleged denial of Sixth and Fourteenth Amendment rights to a fair and impartial jury where juror, who served as foreman, had daughter who was employed by city police department in unknown capacity. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

Both circuit clerks and sheriffs qualify as “interested officials” for purpose of rule that participation of interested officials in juror selection violates due process, since both are officers of the court who have duties in the impaneling of juries. Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 1996 Miss. LEXIS 146 (Miss. 1996).

A juror in a criminal prosecution should have been struck for cause where his sister was employed as an assistant district attorney. Hartfield v. Hartford Life & Accident Ins. Co., 656 So. 2d 104, 1995 Miss. LEXIS 297 (Miss. 1995).

A member of an indicting grand jury may not serve on the defendant’s petit jury. The accuser may not also be the trier of fact since such a practice is inconsistent with the constitutional requirement of an impartial jury. Hood v. State, 523 So. 2d 302, 1988 Miss. LEXIS 74 (Miss. 1988).

Contention that impartiality of veniremen selected to try defendant was reasonably questioned when it became apparent that there were many close associates of law enforcement on it was without merit where only one juror who had relation to law enforcement official actually served on final jury; court will not reverse simply because member or members of jury are somehow connected with law enforcement officials. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Defendant was denied right to fair trial where one member of jury had been witness for prosecution in pretrial hearing concerning motion for change of venue, juror having testified that defendant could receive fair trial in county; trial court erred in refusing defendant’s motion for either mistrial or that juror in question be stricken and alternative substituted. Davis v. State, 512 So. 2d 1291, 1987 Miss. LEXIS 2798 (Miss. 1987), cert. denied, 485 U.S. 913, 108 S. Ct. 1088, 99 L. Ed. 2d 247, 1988 U.S. LEXIS 1008 (U.S. 1988).

Refusal of trial court to disqualify for cause juror who is brother-in-law of chief of police who will be witness in case does not deny defendant impartial jury where juror has stated on voir dire that he will not be influenced by fact that brother-in-law will be witness; nor need former member of board of alderman of town employing chief of police be removed for cause. Smith v. State, 465 So. 2d 999, 1985 Miss. LEXIS 1918 (Miss. 1985).

57. –Publicity, impartial jury.

Publicity associating a defendant with 3 robberies and 3 rapes was insufficient to entitle him to a change of venue for his trial for rape where the publicity consisted of 4 newspaper articles, 3 of which appeared on the front page, and 6 months of silence intervened between the publicity and the trial. McKinney v. State, 521 So. 2d 898, 1988 Miss. LEXIS 112 (Miss. 1988), cert. denied, 494 U.S. 1017, 110 S. Ct. 1321, 108 L. Ed. 2d 497, 1990 U.S. LEXIS 1182 (U.S. 1990).

Circuit Court’s closure order in capital murder case was reasonable regulation of time, place, and manner of newspaper’s enjoyment of its First Amendment right; desire of press to inform public about important criminal proceedings can result in publication of matter that can deprive defendant of his right to fair trial; access of press to trial and pretrial processes may be qualified, and record amply supported Circuit Court’s finding that unrestricted access to trial process would result in substantial likelihood of defendant being denied fair trial; additionally, newspaper was not being denied access to pre-trial proceeding in perpetuity, because closure order expired once jury was sequestered and trial began; once that point was reached, newspaper would be granted access to complete transcript of all closed, pre-trial proceedings. Mississippi Publishers Corp. v. Coleman, 515 So. 2d 1163, 1987 Miss. LEXIS 2900 (Miss. 1987).

58. – Racial make-up of jury, impartial jury.

Defendant’s convictions for murder, sexual battery, and first degree arson were appropriate because the venire from which the jury was selected was produced by a computer that randomly selected names from the voter rolls and defendant made no objection to the selection process, nor did he present any evidence indicating systematic exclusion of blacks in the jury-selection process; defendant objected only to the result of the selection process, not the manner in which the jury was drawn. Haynes v. State, 934 So. 2d 983, 2006 Miss. LEXIS 304 (Miss. 2006), cert. denied, 549 U.S. 1306, 127 S. Ct. 1874, 167 L. Ed. 2d 365, 2007 U.S. LEXIS 3602 (U.S. 2007).

In defendant’s trial for the sale of cocaine, defendant failed to make a prima facie showing that the fair cross-section requirement was violated; defendant also failed to show that there was a systematic exclusion of blacks from the jury pool. Yarbrough v. State, 911 So. 2d 951, 2005 Miss. LEXIS 610 (Miss. 2005).

The trial court did not err in failing to quash the venire on change of venue, notwithstanding that the county in which the jury was chosen had a lower percentage of black citizens than the county in which the crime occurred and the assertion that the defendant was forced to choose between his right to an impartial jury and his right to a jury of his peers. Baldwin v. State, 784 So. 2d 148, 2001 Miss. LEXIS 90 (Miss. 2001).

There is no constitutional right to have a jury mirror any particular community; thus, a capital murder defendant, who was granted a change of venue because of pre-trial publicity, was not improperly denied a second change of venue to a county in which the racial makeup more closely reflected that of the county where the crime occurred where the jury that tried the defendant was selected in a nondiscriminatory manner, and there was no evidence that the jurors were not impartial. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

In a capital murder prosecution in which a black defendant was convicted and sentenced by an all-white jury for the murders of 4 white victims, the trial court did not err by allowing the State to peremptorily strike the sole potential black juror, since the reason stated by the prosecution for the peremptory challenge–that the juror indicated she would have difficulty finding suitable child care during the trial–was sufficiently race-neutral. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

Some acceptable race-neutral reasons for challenging a juror are: (1) involvement in criminal activity; (2) unemployment; (3) employment history; (4) relative of juror involved in crime; (5) low income occupation; (6) juror wore gold chains, rings and watch; and (7) dress and demeanor. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

A murder defendant’s argument that the jury was patently flawed because the jury was white and the defendant was black was without merit. The mere fact that a jury is white and a defendant is black does not violate Batson, but rather it is the racially discriminatory exercise of peremptory challenges to strike black jurors from the jury that violates the Batson rule. Sudduth v. State, 562 So. 2d 67, 1990 Miss. LEXIS 235 (Miss. 1990).

Although the defendant has a right to be tried by a jury whose members were selected pursuant to a non-discriminatory criteria, the Sixth Amendment to the United States Constitution has never been held to require that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Britt v. State, 520 So. 2d 1377, 1988 Miss. LEXIS 113 (Miss. 1988).

59. –Voir dire, impartial jury.

Federal district court correctly denied state death row inmate’s habeas corpus petition; comments by a deputy sheriff called as a venireman, stating that he could not be fair because he had seen crime scene photos in the course of his job, did not taint the resentencing jury or deprive petitioner of due process because the deputy was excused as a juror and because there was no indication that the rest of the venire heard his comments. Holland v. Anderson, 439 F. Supp. 2d 644, 2006 U.S. Dist. LEXIS 46788 (S.D. Miss. 2006).

Defendant was not denied an impartial jury by allegedly inaccurate responses of a juror during voir dire where the juror was asked if he had ever worked as an employee of a law enforcement office agency, belonging to a state or federal, prison or jail system, or any other type of correctional institution, because the dispute over whether the juror worked as a guard rather than in some other capacity was irrelevant. Russell v. State, 849 So. 2d 95, 2003 Miss. LEXIS 297 (Miss. 2003).

A trial court in a capital murder prosecution did not abuse its discretion by refusing to grant the defendant’s motion for individual sequestered voir dire of the entire venire where the court asked the collective venire about the effect of pretrial publicity or information received about the case, and the court later asked if there was any reason that a juror felt that he or she could not be fair and impartial, and anyone who responded affirmatively was questioned individually in chambers. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

A prosecutor’s request of jurors during individual voir dire to give the particular circumstances that each would require in order to return a death sentence were not improperly designed to extract a promise from the jurors that they would certainly vote in favor of the death penalty given a specific set of circumstances, and therefore did not violate the defendant’s constitutional rights. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

Trial judge’s refusal to ask questions on voir dire about contents of news reports concerning accused, who was convicted of murder and sentenced to death, did not violate Sixth or Fourteenth Amendments, where eight of twelve venire persons who were sworn as jurors had answered on voir dire that they had read or heard something about case, but none of eight indicated he or she had formed opinion or would be biased; previous Supreme Court cases had stressed wide discretion of to trial court in conducting voir dire regarding pretrial publicity; since trial judge sat in locale where pretrial publicity was said to have effect, his perception of depth and extent of news stories should be of assistance in deciding how detailed an inquiry to make; voir dire in instant case was not perfunctory and covered subject of possible bias from pre-trial publicity. Mu'Min v. Virginia, 500 U.S. 415, 111 S. Ct. 1899, 114 L. Ed. 2d 493, 1991 U.S. LEXIS 3019 (U.S. 1991).

Prosecutors are not limited in use of any legitimate informational source available as to jurors, nor does prosecutor have to question juror in open court about such information before using it as racially neutral ground to make peremptory strike, as long as source of information and practice itself are not racially discriminatory. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Where funds to pay special prosecutor, in prosecution for murder, were raised by public subscription, defendant’s request for list of contributors to aid in selection of jury should have been granted, but it was not reversible error to refuse since each prospective juror could have been asked if he had contributed. Seals v. State, 208 Miss. 236, 44 So. 2d 61, 1950 Miss. LEXIS 242 (Miss. 1950).

60. –Peremptory challenges, impartial jury.

Federal district court correctly denied state death row inmate’s habeas corpus petition; although defense counsel was forced to exercise a peremptory challenge to exclude a potential juror who should have been excluded for cause, no federal constitutional error occurred because no violation of the state law governing peremptory challenges was shown and because the challenged juror did not ultimately sit on the jury. Holland v. Anderson, 439 F. Supp. 2d 644, 2006 U.S. Dist. LEXIS 46788 (S.D. Miss. 2006).

The defendant’s constitutional right to speedy trial was not violated, notwithstanding that 11 months elapsed from the time of his arrest to his trial and that the state did not show good cause for the delay, where (1) although the defendant was imprisoned for a period of time before trial, most, if not all, of his period of imprisonment stemmed from his parole revocation and conviction on subsequent criminal charges, and (2) he did not assert his right to a speedy trial until nine months after his arrest. Jones v. State, 756 So. 2d 852, 2000 Miss. App. LEXIS 76 (Miss. Ct. App. 2000).

In order to prove that state used peremptory challenges in unconstitutional manner, defendant had to show that he was a member of cognizable racial group, that prosecutor exercised peremptory challenges to excuse venireperson of defendant’s case, and that there was an inference that the venirepersons were excluded on account of their race; burden thereafter shifts to state to come forward with race-neutral explanation for challenging jurors, but prosecutor’s explanation need not rise to level of challenge for cause. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Prosecutor’s stated reason for peremptory challenge against juror, that juror stated that there was nothing she could do about the fact that her sister had been accused of but not charged with killing her brother and that the Lord would take care of it, was sufficiently related to murder prosecution so as not to be deemed pretextual, as her statement could be viewed as placing punishment of wrongdoer in the hands of the Lord. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

A prosecutor’s race-neutral explanation for peremptorily striking a potential juror need not rise to the level of justifying the exercise of a challenge for cause. Davis v. State, 660 So. 2d 1228, 1995 Miss. LEXIS 287 (Miss. 1995), cert. denied, 517 U.S. 1192, 116 S. Ct. 1684, 134 L. Ed. 2d 785, 1996 U.S. LEXIS 3101 (U.S. 1996).

The State’s reasons for using 4 of its 5 peremptory challenges against black jurors were sufficiently race-neutral where the first juror had a pending civil lawsuit, the second juror had worked with a defense witness and the prosecution objected to his age and demeanor, the third juror had previously sat on 2 criminal juries which resulted in one “not guilty” verdict and one mistrial, and the prosecutor was unable to make eye contact with the fourth juror while the juror continuously made eye contact with the defendant. Harper v. State, 635 So. 2d 864, 1994 Miss. LEXIS 201 (Miss. 1994), limited, Flowers v. State, 947 So. 2d 910, 2007 Miss. LEXIS 24 (Miss. 2007).

A capital murder defendant was not denied a fair trial because he was forced to use his last peremptory challenge to remove a juror who was allegedly potentially biased since the loss of a peremptory challenge does not constitute a violation of the constitutional right to an impartial jury so long as the jury that sits is impartial, and the defendant did not show that an incompetent juror was forced to sit on the jury. Mettetal v. State, 615 So. 2d 600, 1993 Miss. LEXIS 96 (Miss. 1993).

The Batson rule applies to both a prosecutor’s and a defendant’s peremptory challenges. Griffin v. State, 610 So. 2d 354, 1992 Miss. LEXIS 749 (Miss. 1992).

Although a peremptory challenge cannot be exercised for a racially discriminatory reason, this does not preclude the exercise of a peremptory challenge for a non-race-based reason that objective and fair-minded persons might regard as absurd. Chisolm v. State, 529 So. 2d 635, 1988 Miss. LEXIS 348 (Miss. 1988).

61. –Challenges for cause, impartial jury.

Defendant’s contention that the venire was biased, resulting in an unfair trial, was rejected where nothing in the record showed that jurors in defendant’s instant case were aware of the arrests for perjury of two jurors in defendant’s prior trial, the potential jurors that defendant challenged for cause were not selected to serve and he did not exercise all of his peremptory challenges, and defendant’s suggested remedies of quashing the entire venire or providing a cooling off period until a fair and impartial jury could be empaneled were not viable. Flowers v. State, 158 So.3d 1009, 2014 Miss. LEXIS 569 (Miss. 2014), vacated, — U.S. —, 136 S. Ct. 2157, 195 L. Ed. 2d 817, 2016 U.S. LEXIS 3930 (U.S. 2016).

Where the evidence showed that the reasons the prosecution in a robbery case struck several jurors included hostile demeanor, acquaintance with the defense team, employment status, and a last name associated with other criminal defendants, a trial court properly overruled a Batson challenge. Gaskin v. State, 873 So. 2d 965, 2004 Miss. LEXIS 288 (Miss. 2004).

Prerequisite to presentation of claim of denial of constitutional rights due to denial of challenge for cause was showing that defendant exhausted all of his peremptory challenges and that incompetent juror was forced to sit on jury by trial court’s erroneous ruling. McGowan v. State, 706 So. 2d 231, 1997 Miss. LEXIS 717 (Miss. 1997).

A murder defendant was not denied a fair trial on the ground that the trial court refused to accept his challenges for cause to 3 potential jurors where the defendant used peremptory challenges to remove those jurors, since the loss of a peremptory challenge does not constitute a violation of the constitutional right to an impartial jury; so long as the jury that sits is impartial, the fact that the defendant had to use peremptory challenges to achieve that result does not mean that the defendant was denied his or her constitutional rights. Mettetal v. State, 602 So. 2d 864, 1992 Miss. LEXIS 413 (Miss. 1992).

A prerequisite to presentation of a claim of a denial of constitutional rights due to denial of a challenge for cause is a showing that the defendant had exhausted all of his or her peremptory challenges and that the incompetent juror was forced to sit on the jury due to the trial court’s erroneous ruling. Mettetal v. State, 602 So. 2d 864, 1992 Miss. LEXIS 413 (Miss. 1992).

The denial of a challenge for cause is not error where it is not shown that the defense has exhausted peremptory challenges and is thus forced to accept the juror. Thus, a trial court’s refusal to remove 6 jurors for cause did not deprive the defendant of a fair trial where only one of the 6 actually served on the jury and she was not challenged at a time when the defense had 12 peremptory challenges, the defense still had one challenge left as well as an alternate challenge at the completion of the selection process, and the defense counsel never raised any objection to the other 5 jurors. Berry v. State, 575 So. 2d 1, 1990 Miss. LEXIS 849 (Miss. 1990), cert. denied, 500 U.S. 928, 111 S. Ct. 2042, 114 L. Ed. 2d 126, 1991 U.S. LEXIS 2673 (U.S. 1991).

62. –Conscientious scruples of jurors, impartial jury.

Defendant was not entitled to habeas relief on claim that venire member was excused without showing of predisposition against death penalty in violation of defendant’s Sixth Amendment rights, where prospective juror was a preacher who stated that he could not put aside his strong moral and religious beliefs about the death penalty and follow instructions given by court. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

Although record in capital murder case indicated that veniremember who was excused for cause stated during voir dire that he could impose death penalty if circumstances warranted, and that another veniremember with similar name, who was not excused, indicated he could not impose death penalty under any circumstances, trial court did not err, where defense counsel’s failure to differentiate between the 2 veniremembers during questioning and parties’ subsequent arguments led to conclusion that court reporter mistakenly transposed veniremembers’ names. Russell v. State, 670 So. 2d 816, 1995 Miss. LEXIS 617 (Miss. 1995), cert. denied, 519 U.S. 982, 117 S. Ct. 436, 136 L. Ed. 2d 333, 1996 U.S. LEXIS 6884 (U.S. 1996), cert. dismissed, 520 U.S. 1249, 117 S. Ct. 2406, 137 L. Ed. 2d 1064, 1997 U.S. LEXIS 3537 (U.S. 1997).

Even if veniremember who gave conflicting statements as to whether he could impose death penalty was erroneously stricken for cause in capital murder case, defendant’s right to impartial jury was not violated, where, because veniremember was panel member number 35, defense would have had to use all 12 peremptory challenges and prosecution would have had to use at least 11 of its peremptory challenges to enable veniremember to serve on jury, and defendant did not claim that any of the 12 jurors who did serve were not impartial. Russell v. State, 670 So. 2d 816, 1995 Miss. LEXIS 617 (Miss. 1995), cert. denied, 519 U.S. 982, 117 S. Ct. 436, 136 L. Ed. 2d 333, 1996 U.S. LEXIS 6884 (U.S. 1996), cert. dismissed, 520 U.S. 1249, 117 S. Ct. 2406, 137 L. Ed. 2d 1064, 1997 U.S. LEXIS 3537 (U.S. 1997).

Even if trial court erred in capital murder case by failing to strike for cause prospective juror who allegedly stated he would always vote for death penalty, defendant’s right to impartial jury was not violated, where prospective juror did not serve on defendant’s jury panel, and defendant was not forced to use peremptory strike to keep him off panel. Russell v. State, 670 So. 2d 816, 1995 Miss. LEXIS 617 (Miss. 1995), cert. denied, 519 U.S. 982, 117 S. Ct. 436, 136 L. Ed. 2d 333, 1996 U.S. LEXIS 6884 (U.S. 1996), cert. dismissed, 520 U.S. 1249, 117 S. Ct. 2406, 137 L. Ed. 2d 1064, 1997 U.S. LEXIS 3537 (U.S. 1997).

A trial judge in a capital murder prosecution did not abuse his discretion by excusing a potential juror who initially indicated that she could not impose the death penalty, even though she subsequently indicated that there were some circumstances under which she could impose the death penalty, where she failed to clearly indicate that she was willing to set aside her own beliefs and follow the instructions and law as to the death penalty. Davis v. State, 660 So. 2d 1228, 1995 Miss. LEXIS 287 (Miss. 1995), cert. denied, 517 U.S. 1192, 116 S. Ct. 1684, 134 L. Ed. 2d 785, 1996 U.S. LEXIS 3101 (U.S. 1996).

A prosecutor’s request of jurors during individual voir dire to give the particular circumstances that each would require in order to return a death sentence were not improperly designed to extract a promise from the jurors that they would certainly vote in favor of the death penalty given a specific set of circumstances, and therefore did not violate the defendant’s constitutional rights. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

Personal opposition to capital punishment is not a constitutional impediment to juror service so long as the juror is able to set aside his or her personal belief and fairly consider all sentencing options under the law; it was therefore error for a trial court to refuse defense counsel an opportunity to further voir dire potential jurors who had expressed reluctance to vote for the death penalty. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

“Death qualification” of jurors prior to the guilt phase in a capital murder prosecution did not deprive the defendant of a jury composed of a fair cross section of the community. Minnick v. State, 551 So. 2d 77, 1988 Miss. LEXIS 612 (Miss. 1988), rev'd, 498 U.S. 146, 111 S. Ct. 486, 112 L. Ed. 2d 489, 1990 U.S. LEXIS 6118 (U.S. 1990), overruled, Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

A trial court did not deny defendant’s constitutional right to a fair and impartial jury, where it eliminated only those prospective jurors who indicated that their conscientious scruples against the death penalty would prevent them from properly considering the issue of defendant’s guilt in accordance with their oath. Jones v. Thigpen, 555 F. Supp. 870, 1983 U.S. Dist. LEXIS 19724 (S.D. Miss. 1983), aff'd in part and rev'd in part, 741 F.2d 805, 1984 U.S. App. LEXIS 18556 (5th Cir. Miss. 1984).

A defendant, found guilty of murder and for whom the jury recommended a sentence of life imprisonment was not deprived of due process and equal protection of the law because of the exclusion of a prospective juror who had scruples against the death penalty, and his exclusion did not result in a panel biased with respect to defendant’s guilt. Joseph v. State, 218 So. 2d 734, 1969 Miss. LEXIS 1617 (Miss. 1969), overruled, Pittman v. State, 297 So. 2d 888, 1974 Miss. LEXIS 1544 (Miss. 1974).

63. –Gender discrimination in jury selection, impartial jury.

There was no violation of defendant’s constitutional right to a speedy trial under the Sixth Amendment and Miss. Const. art. 3, § 26 or his statutory right to a speedy trial under Miss. Code Ann. §99-17-1 (Rev. 2000) because although the four-year delay between his arraignment and his trial was unusual, most of the delay was not attributable to the State or defendant, but rather to a crime lab backlog and the appointment of new counsel. Also defendant failed to show he was prejudiced by the delay where he failed to provide the name of an alleged exculpatory witness. Manix v. State, 895 So. 2d 167, 2005 Miss. LEXIS 112 (Miss. 2005).

Defendant failed to establish prima facie case of gender discrimination arising from prosecution’s exercise of seven peremptory challenges against females where percentage of female venire members struck was nearly equivalent to percentage of females in venire upon which prosecution passed with three peremptory strikes unused; ultimate composition of jury, with eight females, produced percentage of women higher than percentage of females on original venire. Simon v. State, 679 So. 2d 617 (Miss. 1996).

The State was not required to give “gender-neutral” reasons for peremptorily challenging female jurors; the Equal Protection Clause does not extend to gender, and Batson should not be extended to challenges of gender-based discrimination. Simon v. State, 633 So. 2d 407, 1993 Miss. LEXIS 431 (Miss. 1993), vacated, 513 U.S. 956, 115 S. Ct. 413, 130 L. Ed. 2d 329, 1994 U.S. LEXIS 7532 (U.S. 1994).

64. – Racial discrimination in jury selection, impartial jury.

In defendant’s trial for the sale of cocaine, the prosecutor’s reasons for striking two potential jurors, based on age and marital status in one instance, and because a juror had had regular contact with defendant in a second instance, were sufficiently race-neutral to survive defendant’s Batson challenges. Rogers v. State, 891 So. 2d 268, 2004 Miss. App. LEXIS 1041 (Miss. Ct. App. 2004).

Trial court did not err in declaring a mistrial in an armed robbery case because, by the time a Batson challenge was raised, other jurors in the case had already been dismissed; jeopardy did not attach because the record indicated that the jury had not been sworn, despite a trial court’s order that stated otherwise. Gaskin v. State, 873 So. 2d 965, 2004 Miss. LEXIS 288 (Miss. 2004).

On review, the trial court’s determinations under Batson are afforded great deference because they are, in large part, based on credibility; the appellate court will not reverse any factual findings relating to a Batson challenge unless they are clearly erroneous. Murphy v. State, 868 So. 2d 1030, 2003 Miss. App. LEXIS 1161 (Miss. Ct. App. 2003), cert. denied, 868 So. 2d 345, 2004 Miss. LEXIS 297 (Miss. 2004).

A Batson challenge based on the race of jurors who were peremptorily challenged was untimely because the challenge was not made until after the jury was selected, sworn, and seated. Dabney v. State, 772 So. 2d 1065, 2000 Miss. App. LEXIS 330 (Miss. Ct. App. 2000).

It is necessary that trial courts make an on-the-record, factual determination of the merits of the reasons cited by the state for its use of peremptory challenges against potential jurors. Robinson v. State, 761 So. 2d 209, 2000 Miss. LEXIS 147 (Miss. 2000).

There was no pattern of purposeful discrimination on the basis of race and, therefore, the state was not required to show race-neutral reasons for its peremptory challenges to two black prospective jurors where the state used four of its peremptory strikes on white prospective jurors and used two on black prospective jurors. Fikes v. State, 749 So. 2d 1107, 1999 Miss. App. LEXIS 544 (Miss. Ct. App. 1999).

One factor in determining whether prosecutor’s race-neutral explanation for challenge to juror is pretextual is relationship with the reason to the actual facts of the case. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Prosecutor’s basis for peremptory challenge against juror, that defense counsel had stated “I love her to death,” was sufficiently race-neutral. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Under the Batson test, the prosecutor satisfied the burden of articulating a non-discriminatory reason for striking a black juror where he explained that he struck the juror because the juror had long unkempt hair, a mustache and a beard, since the wearing of beards and long unkempt hair are not characteristics that are particular to any race. Purkett v. Elem, 514 U.S. 765, 115 S. Ct. 1769, 131 L. Ed. 2d 834, 1995 U.S. LEXIS 3181 (U.S. 1995).

In a prosecution for capital murder and conspiracy to commit capital murder, the trial court committed reversible error in failing to place the initial burden on the State to establish a prima facie case of racial discrimination in the defendant’s use of his peremptory challenges, before concluding that the defendant failed to offer a race-neutral reason for challenging one of the jurors, since the defendant was arbitrarily and erroneously denied the use of one of his peremptory challenges, and the composition of the jury was directly altered as a result. Colosimo v. Senatobia Motor Inn, 662 So. 2d 552, 1995 Miss. LEXIS 479 (Miss. 1995).

A defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in the defendant’s case; a defendant may establish a prima facie case of purposeful discrimination in selection of the jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial. Griffin v. State, 607 So. 2d 1197, 1992 Miss. LEXIS 603 (Miss. 1992).

A defendant failed to establish a prima facie case of racial discrimination in jury selection, even though the defendant was black and the prosecution exercised preemptory challenges to eliminate 3 black jurors, where the jurors were excluded because they were acquainted with the defendant; while excluding jurors on the ground that they were acquainted with the defendant might have had a discriminatory effect since the defendant’s acquaintances were primarily black, the law does not proscribe the mere incidental exclusion of blacks from a jury. Govan v. State, 591 So. 2d 428, 1991 Miss. LEXIS 836 (Miss. 1991).

No prima facie case of racial discrimination was shown in the prosecution’s use of peremptory challenges, even though the prosecutor exercised 5 of his 7 peremptory challenges against black jurors, where the victim of the crime charged and the defendant were black, the prosecutor and the defendant had several challenges left, numerous potential black jurors were left uncalled, and one black juror was in the jury box. Dennis v. State, 555 So. 2d 679, 1989 Miss. LEXIS 465 (Miss. 1989).

A black defendant made a prima facie showing of purposeful discrimination in the selection of a jury where the jury – including one alternate juror – was composed of 10 white persons and 3 black persons, and where the prosecution exercised 12 peremptory challenges, 7 of which were used to exclude black persons from the jury. Chisolm v. State, 529 So. 2d 630, 1988 Miss. LEXIS 323 (Miss. 1988).

Under Batson v Kentucky (1986) 476 US 79, 90 L Ed 2d 69, 106 S Ct 1712, defendant raising claim must show (1) he is member of “cognizable racial group;” (2) prosecutor has exercised peremptory challenges toward elimination of veniremen of his race; and (3) facts and circumstances infer that prosecutor used his peremptory challenges for purpose of striking minorities. These components constitute prima facie showing of discrimination necessary to compel state to come forward with neutral explanation for challenging black jurors. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

65. – Race-neutral exercise of per-emptory challenges, impartial jury.

During voir dire, defendant challenged four of the state’s peremptory strikes against African-American jurors, claiming that they violated the Batson rule requiring the state to provide race-neutral reasons for exercising peremptory strikes; the state provided race neutral reasons for striking four African-American veniremen and thus the state’s use of its peremptory strikes against the four veniremen were not pretextual or discriminatory. Mingo v. State, 944 So. 2d 18, 2006 Miss. LEXIS 679 (Miss. 2006).

The trial court did not err in finding the state’s reasons for peremptory challenges to be facially race neutral where (1) the state used a peremptory challenge against a black social worker and cited as a race-neutral reason, in addition to her profession, her body language and demeanor when informed that the case was a capital murder prosecution, (2) the state struck a potential black male juror for his “bad name” and because he lived in what was known to be a “bad neighborhood” as local law enforcement had informed the prosecution that many persons with this man’s surname had been prosecuted in the county, (3) another potential juror struck for living in a “bad neighborhood” was also uncertain regarding his ability to vote for the death penalty, (4) the state used a peremptory challenge against a black woman who had first vehemently expressed her stance against the death penalty and later took the opposite view – further, this woman’s brother had been convicted of aggravated assault and robbery, she had been arrested for DUI, and she lived in a high crime area; (5) a black man was struck for his position against the death penalty and for his DUI conviction, (6) another woman was struck for her body language and for the fact that a relative had been convicted of a crime, (7) the state exercised a peremptory challenge against a black mental health hospital attendant whose opinion regarding the death penalty changed some time between his initial questionnaire and voir dire – he had also been arrested for an expired driver’s license, and (8) the state struck a black man who had recently been arrested for an open container violation, while also expressing concern about his truthfulness due to discrepancies between his questionnaire and voir dire. Baldwin v. State, 784 So. 2d 148, 2001 Miss. LEXIS 90 (Miss. 2001).

The state presented race-neutral reasons for its peremptory challenges to black jurors where one juror was struck because she was personally acquainted with both the defendant and the victim, one juror was struck because he was personally acquainted with the defendant, the defendant’s wife, and the defendant’s children; one juror was struck because he was a former client of the defendant’s lawyer, one juror was struck because she had a police record, was a known alcoholic, and had several run-ins with police stemming from her drinking problem, and one juror was struck because several witnesses knew him personally and he was known as a long-time alcoholic. Gavin v. State, 767 So. 2d 1072, 2000 Miss. App. LEXIS 454 (Miss. Ct. App. 2000).

A trial judge is not authorized under Batson to defer until the jury selection process has concluded the requirement that the prosecution give its race-neutral reasons for its strikes at the time the inference arises. Florence v. State, 786 So. 2d 409, 2000 Miss. App. LEXIS 544 (Miss. Ct. App. 2000).

The state presented sufficiently race-neutral reasons for its peremptory challenges to five black prospective jurors: (1) a juror’s sister had been convicted of a crime and sentenced to the penitentiary; (2) a juror’s relative had been convicted of a felony; (3) a juror’s husband had been sent to the penitentiary; (4) a juror had a reputation for using drugs and had recently been charged with a DUI; and (5) a juror had several family members who had previous convictions. Myles v. State, 774 So. 2d 486, 2000 Miss. App. LEXIS 427 (Miss. Ct. App. 2000).

The state’s explanations for three of seven peremptory challenges to black prospective jurors were sufficiently race-neutral where one juror was stricken because he was acquainted with the defendant’s relatives and knew several of the witnesses, another juror was stricken because she knew some of the defendant’s family members and made contradictory statements as to whether she believed in the death penalty, and another juror was stricken because she was elderly and thus might not be able to pay proper attention at trial due to her age. Spann v. State, 771 So. 2d 883, 2000 Miss. LEXIS 197 (Miss. 2000).

The trial court did not err in finding that the state’s peremptory challenges to three black jurors were for racially neutral reasons; one juror was familiar with the defendant’s family and also had a brother in prison, another juror was opposed to the death penalty on religious grounds and knew people who were relatives or friends of the defendant, and another juror lived in close proximity to the defendant’s mother. Davis v. State, 2000 Miss. LEXIS 162 (Miss. June 29, 2000).

The state failed to establish race neutral reasons for its peremptory challenges to several black prospective jurors in the murder prosecution of a black man arising from the death of a white man, where the reasons proffered by the state included (1) a wildly-speculative assertion that two prospective jurors might be the parents of illegitimate children; (2) that one prospective juror seemed to be staring intently at the prosecuting attorney, even though the prosecutor himself was unable to sense any hostility or ill-will; and (3) that another prospective juror slept during a portion of voir dire, though the incident apparently went undetected by the trial court. Robinson v. State, 773 So. 2d 943, 2000 Miss. App. LEXIS 313 (Miss. Ct. App. 2000).

Although the trial judge erred in finding that the defendant failed to establish a prima facie case of discrimination in the exercise of peremptory challenges by the state, the trial judge correctly determined that the explanations offered by the state were race-neutral and that the defendant failed to demonstrate that the state’s proffered reasons were pretextual. Puckett v. State, 2000 Miss. LEXIS 130 (Miss. June 1, 2000), op. withdrawn, sub. op., 788 So. 2d 752, 2001 Miss. LEXIS 168 (Miss. 2001).

The circuit court’s ruling accepting the state’s articulated race-neutral reasons for peremptorily striking a juror was neither clearly erroneous nor against the overwhelming weight of the evidence. Manning v. State, 765 So. 2d 516, 2000 Miss. LEXIS 161 (Miss. 2000), cert. denied, 532 U.S. 907, 121 S. Ct. 1233, 149 L. Ed. 2d 142, 2001 U.S. LEXIS 2042 (U.S. 2001).

There was no Batson violation where the state offered race-neutral reasons for all of the questioned challenges and the defendant offered no rebuttal to the state’s explanations for its peremptory strikes. Gary v. State, 760 So. 2d 743, 2000 Miss. LEXIS 135 (Miss. 2000).

The failure of the trial court to make detailed findings with regard to the sufficiency of the race-neutral reasons asserted by the state for its peremptory challenges to six black prospective jurors constituted error and, therefore, the case was remanded to the trial court for a hearing and findings. Johnson v. State, 754 So. 2d 1178, 2000 Miss. LEXIS 50 (Miss. 2000).

The trial judge did not err in allowing the prosecution to use peremptory challenges to excuse three jurors on the basis that they were unmarried, unemployed, and had children and, therefore, had no stake in the community. Lard v. State, 749 So. 2d 276, 1999 Miss. App. LEXIS 563 (Miss. Ct. App. 1999).

The trial court in a capital murder prosecution erred by not requiring the State to give racially-neutral reasons for exercising peremptory challenges against 7 out of 13 black jurors on the venire, even though there was no showing that the defendant was of a minority class, and therefore the case would be remanded for a hearing on whether the Batson criteria were violated by the State’s exercise of its peremptory challenges. Thorson v. State, 653 So. 2d 876 (Miss. 1994), reh’g denied (Miss. Apr. 20, 1995).

The reasons proffered by the State for using 5 of its 7 peremptory challenges against black jurors were sufficient to withstand a Batson challenge where the reasons given were (1) the juror had a brother in the penitentiary; (2) the juror had attended high school with the defendant; (3) the juror wore dark glasses in the courtroom; (4) the juror was employed in a company in which there had been a riot which was quelled by the police; and (5) the juror shared a last name with many persons in the penitentiary and the prosecutor believed he was related to an inmate, and the defense made no attempt to show that the reasons proffered were pretextual, of disparate impact, or not true. Henderson v. State, 641 So. 2d 1184, 1994 Miss. LEXIS 374 (Miss. 1994).

The State’s reason for striking a potential African-American juror–to get an older man on the jury–was an acceptable, race-neutral reason for exercising a peremptory challenge. Simon v. State, 633 So. 2d 407, 1993 Miss. LEXIS 431 (Miss. 1993), vacated, 513 U.S. 956, 115 S. Ct. 413, 130 L. Ed. 2d 329, 1994 U.S. LEXIS 7532 (U.S. 1994).

A trial judge is required to make an on-the-record factual determination that each reason proffered by the State for exercising a peremptory challenge is, in fact, race neutral; this requirement is to be prospective in nature. Hatten v. State, 628 So. 2d 294, 1993 Miss. LEXIS 522 (Miss. 1993).

The State successfully rebutted a black defendant’s Batson challenge to the State’s exercise of peremptory challenges to eliminate four black venire members where 2 of the venire members were challenged because they were of an age to be employed and had no occupation, and the other 2 were challenged because they were acquainted with the defendant or her family. Porter v. State, 616 So. 2d 899, 1993 Miss. LEXIS 115 (Miss. 1993).

A white defendant had standing to object to the State’s use of 5 of its 6 peremptory challenges to strike black jurors; however, the defendant failed to establish a prima facie case of discrimination where the State offered race neutral reasons for striking each individual black juror and the defendant’s attorney offered no evidence to rebut the State’s reasons for striking the jurors. Green v. State, 597 So. 2d 656, 1992 Miss. LEXIS 206 (Miss. 1992).

The reasons given by a district attorney for exercising a peremptory challenge to excuse a black juror were sufficiently race-neutral where the district attorney stated that the juror was a truck driver “which may or may not mean he’s a transient,” the juror wore overalls with a black T-Shirt in the courtroom, and he was unmarried and did not have children “which shows that he doesn’t have a stake in the community like somebody that’s established.” Bradley v. State, 562 So. 2d 1276, 1990 Miss. LEXIS 267 (Miss. 1990).

Jury selection was properly conducted and jurors were not excluded on basis of race where black jurors were excluded for following race-neutral reasons: (1) 22-year-old laborer with eleventh-grade education was stricken because his youth, marital status, and educational level appeared to prosecutor to indicate instability; (2) 49-year-old minister/bus driver was stricken because he was preacher; (3) 35-year-old housewife was removed because she did not reveal her brother’s conviction for armed robbery; (4) 38-year-old cafeteria hostess was challenged because of her concerns about sequestration due to having to care for invalid mother; and (5) 25-year-old was stricken from panel because he wore hat into courtroom and his general demeanor suggested to prosecutor that he was unstable, unconcerned, and had no respect for proceedings. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

66 – Race-neutral reason for exclusion, impartial jury.

In a Batson challenge, the defense did not met its burden of showing that the facts and circumstances giving rise to the inference that the prosecutor exercised the peremptory challenges with a discriminatory purpose because the State offered reasons for its peremptory strikes of black venire persons that the trial court considered race-neutral, and the defense failed to rebut those reasons. Chamberlin v. State, 989 So. 2d 320, 2008 Miss. LEXIS 352 (Miss. 2008), cert. denied, 555 U.S. 1106, 129 S. Ct. 908, 173 L. Ed. 2d 122, 2009 U.S. LEXIS 495 (U.S. 2009).

In a capital murder case, the trial court did not err in allowing the State to exercise its peremptory challenges on two black members of the venire as race-neutral reasons for striking them were provided: neither were forthcoming about their arrest records and the underlying crime took place in front of a house belonging to one of the jurors. Howell v. State, 860 So. 2d 704, 2003 Miss. LEXIS 556 (Miss. 2003), cert. dismissed, 543 U.S. 440, 125 S. Ct. 856, 160 L. Ed. 2d 873, 2005 U.S. LEXIS 1371 (U.S. 2005).

67. –Capital cases, impartial jury.

Leave was given to file a petition for post-conviction relief because petitioner made a substantial showing of a denial of his constitutional right to an impartial jury to entitle him to a hearing where bailiffs reportedly commented to jurors regarding the reason that all of the jury members were white. The bailiffs reportedly stated that blacks were not comfortable with the death penalty. Batiste v. State, 184 So.3d 290, 2016 Miss. LEXIS 27 (Miss. 2016).

Trial court did not abuse its discretion in striking two jurors for cause because: (1) the first juror repeatedly switched positions as to whether she supported or opposed the death penalty, and gave wavering responses when asked whether she could vote for the death penalty; and (2) the second juror responded on her questionnaire that she could not vote for the death penalty, and the trial judge had ample opportunity to observe the second juror’s responses and demeanor during voir dire, which he found sufficient to determine that her feelings toward the death penalty would substantially impair her duties to perform as a juror. King v. State, 960 So. 2d 413, 2007 Miss. LEXIS 317 (Miss. 2007), cert. denied, 552 U.S. 1190, 128 S. Ct. 1223, 170 L. Ed. 2d 77, 2008 U.S. LEXIS 1244 (U.S. 2008).

Defendant’s right to an impartial jury was not violated based on a failure to constitute a cross-section of the community because defendant was not entitled to a jury that mirrored the community; since jury members were selected by computer through voter registration, it was not possible to show that Asian-Americans were systematically excluded from the jury pool. Le v. State, 913 So. 2d 913, 2005 Miss. LEXIS 151 (Miss.), cert. denied, 546 U.S. 1004, 126 S. Ct. 622, 163 L. Ed. 2d 508, 2005 U.S. LEXIS 8254 (U.S. 2005).

In a capital murder case, the unsworn statements of one juror showing that the juror was predisposed to voting for the death penalty without weighing mitigating factors was countered with an affidavit from the juror that the juror had considered all the evidence in the case and the unsworn statement of the second juror did not state that the juror had been silent during voir dire, that she had lied about her views on mitigating evidence, that the juror was unwilling to consider mitigating factors, or that she had a predisposition toward the death penalty that she did not disclose during voir dire; thus, the inmate’s claim that the two jurors were predisposed toward voting for the death penalty was unsupported and the inmate was not deprived of his right to a fair and impartial jury under the Sixth and Fourteenth Amendments or Miss. Const. art. 3, §§ 14 and 26. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

A defendant was denied his constitutional right to a fair trial by an impartial jury in the sentencing phase of a capital murder prosecution where, upon conclusion of the guilt phase but before the sentencing phase began, the jury prematurely deliberated and sent a note to the judge indicating their decision that the defendant should be sentenced to death. Rather than questioning the jurors in order to determine whether each of them could remain impartial during the sentencing phase, the judge merely instructed the jurors to “refrain from further deliberations,” which was insufficient to insure that the defendant’s right to a fair hearing was not prejudiced. Holland v. State, 587 So. 2d 848, 1991 Miss. LEXIS 648 (Miss. 1991).

Refusal to grant capital murder defendant’s request for change of venue impermissibly deprives defendant of right to impartial jury where defendant has made prima facie showing of community prejudice by submitting affidavit signed by 2 witnesses with knowledge; furthermore, testimony of 15 defense witnesses who state specific reasons why defendant cannot receive fair trial in county in which offense has been committed raises irrebuttable presumption of prejudice. Johnson v. State, 476 So. 2d 1195, 1985 Miss. LEXIS 2257 (Miss. 1985).

Capital murder defendant is not deprived of right to trial by impartial jury where force and effect of trial court’s ruling in improperly excusing juror for cause in order to correct error previously committed by court in refusing to dismiss other jurors for cause, at request of prosecution, after they had unequivocally stated that they could not vote to impose death penalty in any circumstance. Gray v. State, 472 So. 2d 409 (Miss. 1985), rev’d on other grounds, 481 U.S. 648, 107 S. Ct. 2045, 95 L. Ed. 2d 622 (1987), and see Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

In a prosecution for capital murder, the trial court’s excusing of 16 jurors for cause did not violate defendant’s Sixth Amendment right to a representative jury, where all 16 who were excluded indicated that they would not follow the law if it meant imposing the death penalty. Booker v. State, 449 So. 2d 209, 1984 Miss. LEXIS 1682 (Miss.), cert. denied, 469 U.S. 873, 105 S. Ct. 230, 83 L. Ed. 2d 159, 1984 U.S. LEXIS 368 (U.S. 1984).

Defendant’s Sixth and Fourteenth Amendment rights were not violated in a capital murder case, where the trial court excused a juror for cause who had unequivocally stated that he was opposed to the death penalty to the extent that it would prevent him from making an impartial decision on defendant’s guilt, that he would not even consider the court’s instructions, and that under no circumstances would he vote for the death penalty. Wilcher v. State, 448 So. 2d 927, 1984 Miss. LEXIS 1618 (Miss.), cert. denied, 469 U.S. 873, 105 S. Ct. 231, 83 L. Ed. 2d 160, 1984 U.S. LEXIS 369 (U.S. 1984).

A defendant in a capital murder prosecution was not denied his right to an impartial jury under the Sixth Amendment where the prosecution exercised its peremptory challenges on only the black members of the jury venire. Gaines v. State, 404 So. 2d 557, 1981 Miss. LEXIS 2231 (Miss. 1981).

68. –Failure to object, impartial jury.

Defendant was barred from asserting claim of state’s abuse of its peremptory challenges to exclude all blacks from defendant’s jury, which allegedly deprived him of his right to representative jury and to due process of law, where record failed to reflect that defendant had made contemporaneous objection to prosecuting attorney’s use of peremptory challenges. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Claim that court erred in permitting state to systematically exclude black veniremen by peremptory challenge, where no objection was raised either during trial or on motion for new trial, was waived and counsel’s excuse for waiving claim at trial, that under prior law he felt he would be unsuccessful on point, was insufficient. Jones v. State, 517 So. 2d 1295, 1987 Miss. LEXIS 2296 (Miss. 1987), vacated, 487 U.S. 1230, 108 S. Ct. 2891, 101 L. Ed. 2d 925, 1988 U.S. LEXIS 3048 (U.S. 1988), overruled, Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

Failure of defense counsel to timely object to state’s peremptory challenges bars later attempts to advance that claim on appeal; objection is timely only where made prior to impaneling of jury. Jones v. State, 517 So. 2d 1295, 1987 Miss. LEXIS 2296 (Miss. 1987), vacated, 487 U.S. 1230, 108 S. Ct. 2891, 101 L. Ed. 2d 925, 1988 U.S. LEXIS 3048 (U.S. 1988), overruled, Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

Absence of black jurors on jury panel after peremptory challenge by state of only black person who has been called as prospective juror does not violate defendant’s right to impartial jury and equal protection where no request has been made for evidentiary hearing and there is nothing to indicate willful, systematic exclusion of black persons from jury. Belino v. State, 465 So. 2d 1043, 1985 Miss. LEXIS 1968 (Miss. 1985).

69. –Trial conduct, impartial jury.

Trial court did not abuse its discretion by denying defendant’s motion for a mistrial due to the jury’s premature deliberations because it thoroughly questioned each individual juror in chambers to discern the impact of the premature deliberations, and each juror affirmed that he or she had not reached a conclusion on the question of guilt or innocence; the jury bailiff’s testimony that he had not overheard the jurors discussing guilt or innocence corroborated the jurors’ assertions. Ford v. State, 147 So.3d 325, 2014 Miss. LEXIS 467 (Miss. 2014).

Defendant’s capital murder conviction was proper because his Fifth Amendment and Sixth Amendment rights were not violated by the prosecutor’s comments during closing arguments. Wide latitude was given to attorneys in making closing arguments and, given the evidence presented, the court could not say that the verdict was occasioned by unjust prejudice. Davis v. State, 914 So. 2d 200, 2005 Miss. App. LEXIS 269 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 746 (Miss. 2005), cert. denied, 549 U.S. 856, 127 S. Ct. 133, 166 L. Ed. 2d 98, 2006 U.S. LEXIS 6743 (U.S. 2006).

In a capital murder case, the inmate alleged that a deputy made improper comments to the jury amounting to unauthorized communications with jurors that prejudiced his case, but the deputy’s statement was too innocuous to be prejudicial and the statement alone did not indicate what it was in reference to or the context in which it was made and, even if it was made in reference to the inmate’s case, the statement did not show prejudice toward the inmate; thus, the inmate’s right to trial by a fair and impartial jury was not violated. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

In defendant’s conviction for murder of the child while in the commission of felonious abuse and/or battery of the child, there were two notes passed to the trial judge by the bailiff from the jurors, but neither of the notes indicated that the jury had reached a conclusion or that they were deliberating; thus, defendant was not denied the right to an impartial jury. Seeling v. State, 844 So. 2d 439, 2003 Miss. LEXIS 119 (Miss. 2003).

Prosecutor’s actions in stomping around victim’s clothing during closing argument, although theatrical, did not prejudice defendant’s right to fair trial, where stomping was brief and part of prosecutor’s argument regarding facts of case, although defendant’s counsel objected to it, he did not ask court to admonish jury concerning actions, and after objection was sustained, prosecutor continued his argument by changing topics. Berry v. State, 703 So. 2d 269, 1997 Miss. LEXIS 639 (Miss. 1997).

Prosecutor’s comments during closing arguments that defendant’s psychological problems were not special because they have been around since Biblical times did not violate defendant’s right to fair trial, as it was merely historical reference to illustrate his point to jury. Berry v. State, 703 So. 2d 269, 1997 Miss. LEXIS 639 (Miss. 1997).

Law book sent to jury room, without proper precautions taken to ensure that jury did not read from any inappropriate portions which would conflict with Mississippi law, is extraneous influence upon jury. Collins v. State, 701 So. 2d 791, 1997 Miss. LEXIS 520 (Miss. 1997).

Defendant was denied fair trial in murder prosecution when trial court provided jury with law dictionary and directed its attention to definition of premeditation; dictionary’s definition of ’premeditation’ contained cross reference to definition of ’malice aforethought’ that was inconsistent with state law, and no safeguards were taken to keep jurors from looking into other portions of the dictionary. Collins v. State, 701 So. 2d 791, 1997 Miss. LEXIS 520 (Miss. 1997).

In a prosecution for murder, an exclamation from the audience by the victim’s mother that the defendant “cold blooded killed my child” did not prejudice the defendant’s right to a fair trial where the victim’s mother was immediately escorted from the courtroom after her outburst, and the judge then properly admonished the jury to disregard the incident and questioned the jurors to determine whether they could disregard the comments. Bell v. State, 631 So. 2d 817, 1994 Miss. LEXIS 74 (Miss. 1994).

A defendant’s right to a fair trial by an impartial jury was not prejudiced by the fact that the defendant was brought shackled into the hallway outside the courtroom while some of the jurors were in the hallway, where the defendant was not brought into the courtroom until the shackles were removed, the incident was a technical violation which was not intentional but was coincidental to the jury being out in the hallway, and no evidence was presented to show that the defendant was seen shackled by some of the jury members. Wiley v. State, 582 So. 2d 1008, 1991 Miss. LEXIS 364 (Miss. 1991).

Counsel failed to preserve sufficient record from which it could be determined whether mistrial should have been granted where defense counsel brought alleged outside influence of jurors to court’s attention through motion for mistrial, but offered little proof in support of this motion; alleged outside influence consisted of juror reporting to bailiff during course of trial concerning rumors regarding defendant’s being visited by another prisoner in her cell while the 2 were incarcerated, statement allegedly having been made in front of all other male jurors; court noted that whenever there was question regarding outside influence of jury, trial judge himself ought to examine jury carefully to ensure that its deliberations were based on evidence produced at trial and not extraneous matters. Williamson v. State, 512 So. 2d 868, 1987 Miss. LEXIS 2683 (Miss. 1987), Walton v. State, 678 So. 2d 645, 1996 Miss. LEXIS 192 (Miss. 1996).

70. Appearance of accused in handcuffs, shackles or prison clothes.

In defendant’s capital murder case, defendant’s right to a fair trial was not violated where the momentary, inadvertent and fleeting sight of defendant in shackles by potential jurors, while being transported into the courtroom, absent prejudice shown, did not require a mistrial. Spicer v. State, 921 So. 2d 292, 2006 Miss. LEXIS 20 (Miss.), cert. denied, 549 U.S. 993, 127 S. Ct. 493, 166 L. Ed. 2d 364, 2006 U.S. LEXIS 8022 (U.S. 2006).

71. Confrontation of witnesses – In general.

Although the trial court should have allowed defendant to cross-examine a witness about mislabeling at the state crime lab, the error was harmless beyond a reasonable doubt. The trial court’s failure to allow defense counsel to question the witness about the error in the lab did not prejudice the outcome of the trial. Hutto v. State, 227 So.3d 963, 2017 Miss. LEXIS 180 (Miss. 2017), cert. denied, — U.S. —, 138 S. Ct. 983, 200 L. Ed. 2d 262, 2018 U.S. LEXIS 1361 (U.S. 2018).

Forensic expert’s testimony about projectiles that were removed from police vehicles at the crime scene did not violate defendant’s right of confrontation, where the expert clearly participated in the analysis of the evidence recovered. Terrell Patrick Corvette Hopper v. State, 220 So.3d 224, 2017 Miss. App. LEXIS 176 (Miss. Ct. App. 2017), cert. denied, — So.3d —, 2018 Miss. LEXIS 28 (Miss. 2018), cert. denied, — So.3d —, 2018 Miss. LEXIS 29 (Miss. 2018), cert. denied, — So.3d —, 2018 Miss. LEXIS 32 (Miss. 2018).

Father’s removal from the courtroom during the testimony of the mother’s daughter from a previous relationship did not violate the Confrontation Clause of the Sixth Amendment because the Confrontation Clause only applies to criminal cases. Miller v. Smith, 229 So.3d 100, 2017 Miss. LEXIS 427 (Miss. 2017).

Letters the victim’s friends and family sent to the trial court regarding defendant’s sentence did not violate defendant’s right to confrontation because although the supreme court had applied the Confrontation Clause to jury sentencing, the letters were admissible at sentencing because the case involved sentencing by a judge, not a jury, so defendant’s right to confrontation was not violated. Burgess v. State, 178 So.3d 1266, 2015 Miss. LEXIS 570 (Miss. 2015).

There was no Confrontation Clause or hearsay violation in an officer’s testimony because the officer did not testify that the two people who identified defendant as the shooter were eyewitnesses, the officer did not convey any statements or assertions made by the two anonymous people, either directly or indirectly, and the officer did not reveal the substance of the conversations; the officer stated that defendant became a suspect during the course of her investigation, but it was clear that her investigation involved much more than a conversation with these two people. Thus, it was not apparent that the testimony at issue was hearsay or that the unnamed people could be classified as accusers. Keithley v. State, 111 So.3d 1202, 2013 Miss. LEXIS 161 (Miss. 2013).

Defendant’s Sixth Amendment right to confront his accuser was not violated by the court’s admission of prior statements by the victim to law enforcement which were inconsistent with his testimony on direct examination and which the victim disclaimed at trial as having been false; victim’s appearance on the witness stand at trial provided defendant with the opportunity to confront and cross-examine such victim, which was all that is required by the Sixth Amendment Confrontation Clause. Smith v. State, 25 So.3d 264, 2009 Miss. LEXIS 546 (Miss. 2009).

Trial court permitted defendant to produce evidence of his sons’ assault upon the victim through cross-examination of several other witnesses and the trial court’s decision not to allow defendant to call the victim’s stepbrothers did not deprive defendant of an ample opportunity to present his theory of the case. Caldwell v. State, 6 So.3d 1076, 2009 Miss. LEXIS 75 (Miss. 2009).

Introduction of codefendant’s statement was harmless beyond a reasonable doubt where defendant made no effort to suppress his own statements and the only objection made to the introduction of his statement was his joining codefendant’s objection on the grounds of hearsay and confrontation; no objection was made which would challenge either the truthfulness, or the voluntariness, or the reliability of defendant’s statements, and defendant’s confession was the most probative and damaging evidence admitted against him, and it constituted direct evidence of the facts related to the victim’s murder; defendant’s own statements concerning his participation in the robbery and murder of the victim were uncontradicted and unchallenged, and the evidence in the record was overwhelming and was sufficient to support the jury’s verdict. Smith v. State, 986 So. 2d 290, 2008 Miss. LEXIS 339 (Miss. 2008).

Defendant’s conviction for the sale of a controlled substance was appropriate, in part because defendant suffered no substantial prejudice in that he was not denied his constitutional right to confront witnesses based on the admission of audiotaped telephone recordings of the pre-drug-buy conversations between the confidential informant and unknown persons. Neither the confidential informant nor the law enforcement officials knew the identity of the voices on the tape, other than the confidential informant, nor did the State or any of its witnesses attempt to state or imply that one of the unidentified voices on the tape recording was defendant’s. Brown v. State, 969 So. 2d 855, 2007 Miss. LEXIS 680 (Miss. 2007).

Victim’s mother’s testimony about a letter defendant wrote to her while he was incarcerated was an admission by a party-opponent, not considered hearsay, and thus admissible under Miss. R. Evid. 801(d)(2); there could be no violation of the confrontation clause when defendant was the person making the incriminating statement, as defendant could not cross-examine himself, and there was nothing in the testimony about the letter which was an absolute admission of guilt on the part of defendant. Rankin v. State, 963 So. 2d 1255, 2007 Miss. App. LEXIS 553 (Miss. Ct. App. 2007).

Defendant’s murder conviction was proper because there was no indication that a witness’s co-worker’s comments to the witness regarding defendant’s identity were “testimonial” within the meaning established by Crawford since the co-worker did not make his comments during a preliminary hearing, before a grand jury, at a former trial, or during a policy interrogation; the co-worker’s comments took place between two co-workers at a time when defendant was not a suspect to the murder because, at the time of the comments, no one was aware that the victim had been murdered. Bailey v. State, 956 So. 2d 1016, 2007 Miss. App. LEXIS 112 (Miss. Ct. App.), cert. denied, 957 So. 2d 1004, 2007 Miss. LEXIS 301 (Miss. 2007).

In a robbery case, where defendant’s co-defendant had been acquitted and his co-defendant chose “not to testify,” the full text of the co-defendant’s statement to the police that was admitted into evidence clearly reflected that no specific individual was facially implicated by same. Based on the benign character of the co-defendant’s statement in the individual case, and the assuredly disruptive impact that the retroactive application of Crawford v. Washington, 541 U.S. 36, (2004) would undoubtedly have created in the form of innumerable appeals, the appellate court held that Crawford (which barred testimonial out-of-court statements by witnesses under the Confrontation Clause, unless witnesses were unavailable and defendants had prior opportunity to cross-examine them), was not be applied retroactively in defendant’s appeal. Bynum v. State, 929 So. 2d 324, 2005 Miss. App. LEXIS 267 (Miss. Ct. App. 2005), aff'd, 929 So. 2d 312, 2006 Miss. LEXIS 261 (Miss. 2006).

Where defendant asserted self defense in what he alleged was the accidental killing of his former girlfriend when he allegedly was confronted by her male friend, the trial court abused its discretion when it prohibited the question on the male friend’s prior gun ownership. However, in a second instance, the State elicited the same information on redirect examination that defendant was barred from eliciting on cross-examination, in regard to whether the male friend had also been a suspect early in the investigation; in the former respect, the error was harmless given the overwhelming weight of the evidence against defendant, and in the latter respect, defendant’s right to confrontation was not violated as he suffered no prejudice. Raiford v. State, 907 So. 2d 998, 2005 Miss. App. LEXIS 279 (Miss. Ct. App. 2005).

Trial court erred in admitting police testimony regarding the robbery accomplice’s confession because the accomplice refused to testify and the United States Supreme Court has held that under the Bruton rule the lack of cross-examination was a violation of the Confrontation Clause of the Sixth Amendment. However, in light of the overwhelming evidence of defendant’s guilt, particularly the testimony of his roommate and former girlfriend, the violation was harmless error. Clark v. State, 891 So. 2d 136, 2004 Miss. LEXIS 1324 (Miss. 2004), cert. denied, 544 U.S. 1025, 125 S. Ct. 1999, 161 L. Ed. 2d 869, 2005 U.S. LEXIS 3864 (U.S. 2005).

Criminal defendant has no Confrontation Clause guarantees at sentencing. (Per Smith, J., with three Justices concurring, and Chief Justice and two Justices concurring in result.) Holland v. State, 705 So. 2d 307, 1997 Miss. LEXIS 388 (Miss. 1997), cert. denied, 525 U.S. 829, 119 S. Ct. 80, 142 L. Ed. 2d 63, 1998 U.S. LEXIS 5017 (U.S. 1998).

Criminal defendant must be allowed to call witnesses to stand even though defendant is aware that witness, if called, will invoke Fifth Amendment to every question. Butler v. State, 702 So. 2d 125, 1997 Miss. LEXIS 620 (Miss. 1997).

The right of confrontation does not require the prosecution to introduce certain witnesses or to call all witnesses who are competent to testify. Harrison v. State, 534 So. 2d 175, 1988 Miss. LEXIS 534 (Miss. 1988).

The Confrontation Clause of the United States Constitution operates in 2 separate ways to restrict the range of admissible hearsay. First, in conformity with the preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case, including cases where prior cross-examination has occurred, the prosecution must either produce or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant. The second aspect operates once a witness is shown to be unavailable; reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the clause countenances only hearsay marked with such trustworthiness that there is no material departure from the reason of the general rule. Stoop v. State, 531 So. 2d 1215, 1988 Miss. LEXIS 493 (Miss. 1988).

Trial judge committed no error in allowing victim’s in-court identification of defendant, despite contention of defendant that in-court identification was result of unnecessarily suggestive viewing of defendant by victim while defendant was being treated at hospital, because under totality of circumstances as contemplated by Manson v Brathwaite (1977) 432 US 98, 53 L Ed 2d 140, 97 S Ct 2243, there was no substantial likelihood of misidentification; analysis of Manson factors showed that victim had viewed defendant at close range for approximately one hour; victim’s undivided attention was focused on defendant; victim’s initial description of her attacker to police exhibited high degree of accuracy; victim was positive of her identification of suspect, describing his as “a face I’ll never forget;” and, time between crime and subsequent confrontation defendant was approximately one hour. Davis v. State, 510 So. 2d 794, 1987 Miss. LEXIS 2637 (Miss. 1987).

In a sense, the right to confront witnesses clause of the federal and state constitutions are hearsay rules elevated to constitutional status. Mitchell v. State, 495 So. 2d 5, 1986 Miss. LEXIS 2659 (Miss. 1986), overruled in part, Smith v. State, 986 So. 2d 290, 2008 Miss. LEXIS 339 (Miss. 2008).

The confrontation clause operates in two ways to restrict the range of admissible hearsay. First, it establishes a rule of necessity whereby in the usual case the prosecution must either produce or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant. Even then his statement is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. United States v. Washington, 688 F.2d 953, 1982 U.S. App. LEXIS 25386 (5th Cir. Miss. 1982).

Defendant waived his right to confrontation where he failed to object in the trial court on the constitutional ground later relied upon on appeal as the basis for reversible error. Montgomery v. Parrish, 279 So. 2d 156, 1973 Miss. LEXIS 1460 (Miss. 1973).

Upon the trial of a defendant in a criminal action, the state is under no duty to produce all of the witnesses present when the defendant’s confession was given; except when the voluntariness of the confession is at issue. Bounds v. State, 271 So. 2d 435, 1973 Miss. LEXIS 1510 (Miss. 1973).

72. –Statutes and court rules, confrontation of witnesses.

Under Rule 803(6), Miss. R. Ev., a custodian of the records of the Mississippi Crime Lab may introduce laboratory reports in a narcotics possession or sale case, except where the defendant objects on the ground that his or her Sixth Amendment right to confront the person who prepared the test is being violated. Kettle v. State, 641 So. 2d 746, 1994 Miss. LEXIS 346 (Miss. 1994).

73. –Time right accrues, confrontation of witnesses.

Right of confrontation does not attach until criminal prosecution has begun. Singing River Elec. Power Ass'n v. State ex rel. Mississippi Dep't of Envtl. Quality, 693 So. 2d 368, 1997 Miss. LEXIS 154 (Miss. 1997).

Although a defendant was entitled to a preliminary hearing, he was not prejudiced by the lack of one where he was afforded ample opportunity through his pretrial hearings to confront the State’s witnesses. Rogers v. State, 599 So. 2d 930, 1992 Miss. LEXIS 123 (Miss.), overruled in part, Mayfield v. State, 612 So. 2d 1120, 1992 Miss. LEXIS 861 (Miss. 1992).

74. –Discovery, confrontation of witnesses.

Defendant’s right to a fair trial was not violated where defendant could not show that a discovery violation was committed by the State or that he was prejudiced in any way when there was nothing in the record showing knowledge on the part of the State of either of the two defense witnesses, and defendant made no showing how the police could have known of them and thus failed to disclose them; even though defendant claimed prejudice because police and/or the DA’s office failed to find certain witnesses who would have helped him in his defense, he put on no proof at trial of an alleged inadequate investigation. Morris v. State, 927 So. 2d 744, 2006 Miss. LEXIS 113 (Miss. 2006).

Electric power company’s confrontation clause rights were not violated by denial of access to reports containing identities of informants who told Department of Environmental Quality (DEQ) that electric power company was improperly disposing of regulated environmental waste, where company was not subject of criminal, civil, or administrative charges prior to its filing of complaint. Singing River Elec. Power Ass'n v. State ex rel. Mississippi Dep't of Envtl. Quality, 693 So. 2d 368, 1997 Miss. LEXIS 154 (Miss. 1997).

A denial of a list of witnesses does not always amount to a prejudicial denial of due process, particularly where student witnesses in a school disciplinary proceeding are involved, since a school board has not been given the power of subpoena. However, school boards should be especially sensitive to the right of students to know the complete nature of the charges, especially where charges of misconduct are denied and proof is based solely on testimony of other students. Although confrontation may not be an absolute necessity–or even advisable–in every case, written statements should ordinarily be provided. Findings of fact should be made, especially where there are multiple allegations. School boards should take note that although courts should not become involved in running schools, expulsion and suspension are severe sanctions requiring solemn attention to a pupil’s rights. Jones v. Board of Trustees, 524 So. 2d 968, 1988 Miss. LEXIS 189 (Miss. 1988).

Inability of criminal defendant to do independent testing of substance at issue in criminal proceeding does not violate defendant’s right to confront state’s expert witness who testifies regarding test made on substance where entire substance has been consumed during state testing, and there is no evidence that state tests were unauthorized or that state was negligent in consuming entire substance. Washington v. State, 478 So. 2d 1028, 1985 Miss. LEXIS 2277 (Miss. 1985).

75. – Child abuse, confrontation of witnesses.

There was no plain error in the failure to either make a Sixth Amendment objection or at least to have such an objection clearly preserved on the record; thus, the court determined that defendant’s argument for the first time on appeal that the introduction of a video demonstrating a “shaken baby” episode violated his Sixth Amendment right to confront witnesses was without merit. Rumfelt v. State, 947 So. 2d 997, 2006 Miss. App. LEXIS 570 (Miss. Ct. App. 2006).

In a sexual battery of a child case, the victim’s grandmother, the babysitter, the psychotherapist, and the doctor were not working in connection with the police; further, their statements were not made for the purpose of aiding in the prosecution because (1) the victim’s unsolicited statements were made to his grandmother and his babysitter for the sake of his well-being and not for the purpose of furthering the prosecution; and (2) his statements to the psychotherapist and the doctor were for the purpose of seeking medical and psychological treatment. The victim was taken to the psychotherapist and the doctor at the family’s request and not sent there by police to further their investigation; thus, their testimony did not violate the Confrontation Clause. Hobgood v. State, 926 So. 2d 847, 2006 Miss. LEXIS 118 (Miss. 2006), cert. denied, 549 U.S. 1118, 127 S. Ct. 928, 166 L. Ed. 2d 714, 2007 U.S. LEXIS 143 (U.S. 2007).

In a sexual battery of a child case, the statements testified to by a police officer and a detective were testimonial and should have been excluded under the Confrontation Clause; therefore, the trial court erred in admitting them. However, similar testimony was properly admitted from four other witnesses; therefore, the testimony was duplicative, and the error was harmless. Hobgood v. State, 926 So. 2d 847, 2006 Miss. LEXIS 118 (Miss. 2006), cert. denied, 549 U.S. 1118, 127 S. Ct. 928, 166 L. Ed. 2d 714, 2007 U.S. LEXIS 143 (U.S. 2007).

In a prosecution for felonious child abuse arising from the defendant’s beating of his 9-year-old son, the defendant’s constitutional right to confront his accuser was not violated, in spite of the defendant’s argument that his accuser was his wife and that he was not allowed to “confront” her, where the defendant’s wife was not a witness at the trial, the defendant was allowed to fully cross-examine all State witnesses against him, and the record did not indicate that the defendant’s wife ever accused him of felonious child abuse. Ahmad v. State, 603 So. 2d 843, 1992 Miss. LEXIS 321 (Miss. 1992).

In noncriminal cases involving allegations of child abuse by the parent, the right of confrontation should be accorded to the accused parent. Bailey v. Woodcock, 574 So. 2d 1369 (Miss. 1990).

76. –Child witnesses, confrontation of witnesses.

In a case involving sexual abuse of children, defendant’s Sixth Amendment claim was rejected because he failed to show that he was prejudiced by the denial of the right to view the demeanor of the children as they testified via closed circuit television, pursuant to Miss. R. Evid. 617. Therefore, defendant’s motions for a mistrial and a new trial were properly denied. Rollins v. State, 970 So. 2d 716, 2007 Miss. LEXIS 707 (Miss. 2007).

Trial did not violate a defendant’s confrontation rights in admitting a child victim’s video statement where he was allowed to cross-examine the victim after she testified in court and he was given an opportunity for re-cross-examination after the statement was entered. Penny v. State, 960 So. 2d 533, 2006 Miss. App. LEXIS 909 (Miss. Ct. App. 2006), cert. denied, 959 So. 2d 1051, 2007 Miss. LEXIS 384 (Miss. 2007), cert. denied, 959 So. 2d 1051, 2007 Miss. LEXIS 386 (Miss. 2007).

Trial court had not erred by allowing the statements of 5-year-old rape victim to be brought before the jury through the testimony of medical professionals who examined or interviewed her because the statements to doctors were statements made for the purposes of medical treatment, and thus an exception to the hearsay rule of exclusion. And, the statements were made as a part of neutral medical evaluations and thus were not testimonial and defendant’s confrontation clause violation argument was without merit. Foley v. State, 914 So. 2d 677, 2005 Miss. LEXIS 586 (Miss. 2005).

Social worker was properly allowed to testify as to statements made by the victim in a child-fondling case because Miss. R. Evid. 803(25) applied, and considering the social worker’s testimony at the preliminary hearing and the trial court’s review of the videotape of the interview, the victim’s statements at the interview bore substantial indicia of reliability. Further, defendant’s right to confrontation was not violated because the victim testified at trial and defendant cross-examined her. Elkins v. State, 918 So. 2d 828, 2005 Miss. App. LEXIS 483 (Miss. Ct. App. 2005), cert. denied, 921 So. 2d 1279, 2006 Miss. LEXIS 26 (Miss. 2006), cert. denied, 547 U.S. 1194, 126 S. Ct. 2865, 165 L. Ed. 2d 898, 2006 U.S. LEXIS 4564 (U.S. 2006).

For statement made by child of tender years describing act of sexual contact performed with or on child by another to be admissible, reliability of statement must be judged independently of any corroborating evidence. Hughes v. State, 665 So. 2d 852 (Miss. 1995), reh’g denied (Miss. Dec. 21, 1995).

Sixth Amendment confrontation clause did not absolutely prohibit state from using one-way closed-circuit television for receipt of testimony by child witness in child abuse case, as face-to-face confrontation is not indispensable element of confrontation guarantee, and in narrow circumstances competing interest may warrant dispensing with confrontation at trial and word “confront” cannot simply mean face to face confrontation; statutory procedure insured reliability of evidence by subjecting it to rigorous adversarial testing and thereby preserved essence of effective confrontation; state’s interest in physical and psychological well being of child abuse victims may be sufficiently important to outweigh defendant’s right to face accusers in court in some cases. Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666, 1990 U.S. LEXIS 3457 (U.S. 1990).

77. – Informants, confrontation of witnesses.

There was no evidence the informant was an eyewitness to defendant’s drug possession, and there were no allegations of entrapment, misidentification, or other similar claims necessitating disclosure; it was not shown how the informant’s identity was material to defendant’s drug possession, and thus the trial court did not err in not requiring the State to disclose his identity, plus defendant’s Sixth Amendment right to confrontation was not violated. Ray v. State, 238 So.3d 1118, 2018 Miss. LEXIS 22 (Miss. 2018).

In a case involving possession of methamphetamine, possession of precursor materials, and false pretenses, plain error was shown because there was a violation of the state and federal Confrontation Clauses based on the admission into evidence of two search warrants and an affidavit that included hearsay statements attributed to a confidential informant. Regardless of the strength of the properly admitted evidence, it could not have been said beyond a reasonable doubt that the documents did not prejudice defendant. Johnson v. State, 155 So.3d 733, 2014 Miss. LEXIS 150 (Miss. 2014).

Even assuming that the issue was not barred, there would be no merit to the confrontation issue where it was clear that the confidential informant did not testify; the right to confront witnesses did not extend beyond those witnesses called to testify against an accused; consequently, there was no merit to defendant’s contention that he was denied his right to confrontation as secured under the Sixth Amendment. Sweet v. State, 910 So. 2d 735, 2005 Miss. App. LEXIS 211 (Miss. Ct. App. 2005).

Defendant’s confrontation rights are not violated when a police officer testifies about the statement of a confidential informant if the informant is available for cross-examination; moreover, an officer’s testimony regarding an informant’s statement that defendant sold drugs was not hearsay because it was merely offered to show the reason behind the officer’s actions, and it was not offered to prove the truth of the matter asserted. Stubbs v. State, 878 So. 2d 130, 2004 Miss. App. LEXIS 31 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 936 (Miss. 2004).

Statement of an officer to explain why a particular person was approached on a certain date was admissible because it did not constitute hearsay; moreover, the statement did not violate defendant’s right to confrontation because the officer was cross-examined at trial, despite the officer’s actions being based on the statements of several anonymous tipsters. Hill v. State, 865 So. 2d 371, 2003 Miss. App. LEXIS 983 (Miss. Ct. App. 2003).

The defendant in a drug related prosecution was not denied his right of confrontation by the absence of a confidential informant because the testimony of a police officer with regard to a prior sale of cocaine by the defendant to the informant did not include anything which was outside the realm of his own personal knowledge and did not include anything that was solely within the first hand knowledge of the confidential informant. Donerson v. State, 812 So. 2d 1081, 2001 Miss. App. LEXIS 118 (Miss. Ct. App. 2001).

Tape recordings of defendant’s conversation with government informant who did not testify were supported by adequate indicia of reliability to be admissible in drug conspiracy case without violating defendant’s confrontation clause rights; government agent was present when conversations occurred and identified defendant’s voice, and controlled drug deal occurred in accordance with instructions provided by defendant during one of the recorded conversations. United States v. Dixon, 132 F.3d 192, 1997 U.S. App. LEXIS 36328 (5th Cir. Miss. 1997), cert. denied, 522 U.S. 1061, 118 S. Ct. 721, 139 L. Ed. 2d 661, 1998 U.S. LEXIS 260 (U.S. 1998), cert. denied, 523 U.S. 1096, 118 S. Ct. 1581, 140 L. Ed. 2d 796, 1998 U.S. LEXIS 2864 (U.S. 1998).

In a prosecution for sale of a controlled substance, the defendant was not deprived of his constitutional right to confront witnesses on the ground that the State failed to provide information as to the whereabouts of an informant where the defendant did not allege any bad faith by the State, and the State provided evidence as to its good faith attempt to locate the informant. Campbell v. Campbell, 618 So. 2d 116, 1993 Miss. LEXIS 200 (Miss. 1993).

A trial court erred in determining that a defendant was not entitled to disclosure of the identity of a confidential informant where, without the informant’s eyewitness testimony, the State’s case would have rested almost exclusively on the uncorroborated and doubtful testimony of 2 codefendants; however, the trial court’s error did not require reversal where the defendant discovered the informant’s identity at trial and subsequently confronted and cross-examined him, since confrontation and cross-examination are the very rights which require disclosure of material witnesses in the first place and the defendant fully exercised those rights at the trial. Fleming v. State, 604 So. 2d 280, 1992 Miss. LEXIS 382 (Miss. 1992).

The trial court did not err in failing to require the state to divulge the identity of the person who informed the officers that the defendant had contraband in his apartment where the informant was not an active participant in the commission of the crime, nor was he present when the defendant was apprehended in the commission of the crime charged, nor was the informant a witness against the defendant. Wood v. State, 322 So. 2d 462, 1975 Miss. LEXIS 1542 (Miss. 1975).

Where it appears that an informer was a participant in the crime or is a material witness essential to the defense of the accused, the state must divulge the name of the informer to the defendant. Conviction for possession of marijuana was reversed where the state refused to divulge the name of the informer who knew who had possession of the marijuana within the 24 hours prior to defendant’s arrest and who knew that that man was not the defendant. Raper v. State, 317 So. 2d 709, 1975 Miss. LEXIS 1775 (Miss. 1975).

What an informant told police officers in the course of their investigation was hearsay and inadmissible to the jury, and where such hearsay was incriminating as to the defendant the case was reversed and remanded. Ratcliff v. State, 308 So. 2d 225, 1975 Miss. LEXIS 1853 (Miss. 1975).

78. – Hearsay, confrontation of witnesses.

Trial court did not abuse its discretion in allowing a witness’s testimony as to what defendant communicated because it properly limited the testimony to statements made by the witness or defendant. Corrothers v. State, 148 So.3d 278, 2014 Miss. LEXIS 311 (Miss. 2014), cert. denied, — U.S. —, 135 S. Ct. 2835, 192 L. Ed. 2d 877, 2015 U.S. LEXIS 3926 (U.S. 2015).

Purported statements of unidentified persons at the company that manufactured the bullets involved in a crime constituted hearsay, and because it was unclear who contacted the company, perhaps double hearsay, and its admission resulted in a violation of the Confrontation Clause. Burdette v. State, 110 So.3d 296, 2013 Miss. LEXIS 75 (Miss. 2013).

Defendant’s capital murder conviction was appropriate because his right to confrontation was not violated by the admission of the victim’s death certificate into evidence. The death certificate was admissible as a public record under Miss. R. Evid. 902(4) and, while the trial court erred in allowing the death certificate into evidence showing the purported time of injury under Miss. R. Evid. 803(9), the error was harmless because witnesses testified that they could not be positive of the time of injury or the time of death. Birkhead v. State, 2009 Miss. LEXIS 73 (Miss. Feb. 19, 2009).

Neighbor’s hearsay testimony did not violate defendant’s Sixth Amendment, U.S. Const. Amend. VI, right, because only testimonial hearsay was capable of violating the Sixth Amendment; the victim’s child’s statements to the neighbor were not made for any prosecutorial purpose and was nontestimonial, and the investigator’s testimony was responsive to questions from the State as to why he contacted the Department of Human Services to pick up the children from the scene. Neal v. State, 15 So.3d 388, 2009 Miss. LEXIS 272 (Miss. 2009), dismissed, — So.3d —, 2016 Miss. LEXIS 340 (Miss. 2016).

Because defendant could have recalled the victim after the admission of the Miss. R. Evid. 803(25) testimony but chose not to do so, the admission of this hearsay evidence did not violate his Sixth Amendment, U.S. Const. Amend. VI, right to confront his accuser. Caldwell v. State, 6 So.3d 1076, 2009 Miss. LEXIS 75 (Miss. 2009).

Police officer’s testimony referencing the store manager’s comments that defendant was shoplifting was not hearsay and was properly admitted where defendant was not charged with shoplifting and the testimony complained of was not used to prove the truth of whether or not defendant shoplifted; defendant was charged with feloniously eluding a law enforcement in a motor vehicle and the purpose of the testimony was to show why the officer followed defendant into the parking lot where she fled from him. Watson v. State, 8 So.3d 901, 2008 Miss. App. LEXIS 637 (Miss. Ct. App. 2008), cert. denied, 12 So.3d 531, 2009 Miss. LEXIS 217 (Miss. 2009).

In a sexual battery and touching of a child for lustful purposes case, as the trial court was correct in its determination that the statements made by the child to her mother and to her therapist were non-testimonial in nature, they did not trigger the protections of the confrontation clause, and defendant’s right to confrontation was not violated. Bishop v. State, 982 So. 2d 371, 2008 Miss. LEXIS 137 (Miss. 2008).

While the trial court erred in allowing a store clerk’s hearsay testimony under Miss. R. Evid. 802 regarding another person telling her defendant’s name, it was harmless because the only testimony of that witness that was prejudicial to defendant was all admissible in that the prejudicial feature of the witness’s testimony was that she identified defendant, even if she did not know him by name, and she noticed the vehicle that he drove, even if she did not know it to be the victim’s. Bailey v. State, 2006 Miss. App. LEXIS 508 (Miss. Ct. App. June 27, 2006), op. withdrawn, sub. op., 956 So. 2d 1016, 2007 Miss. App. LEXIS 112 (Miss. Ct. App. 2007).

Defendant claimed that his trial counsel was ineffective, but as defendant voluntarily assumed the role of trial counsel, he could not claim that his adviser failed to provide him with adequate representation; simply put, defendant could not benefit on appeal from his own ineptitude at trial. Jackson v. State, 943 So. 2d 720, 2006 Miss. App. LEXIS 506 (Miss. Ct. App. 2006).

Because a laboratory report was admitted without a sponsoring witness, it was hearsay pursuant to Miss. R. Evid. 801(c), and the admission of the report violated defendant’s Sixth Amendment right to confrontation because defendant had no opportunity to cross-examine anyone on the conclusions of the laboratory; however, the court concluded that the admission was harmless error because the proper admission of the initial test contained the same evidence, and the testimony of certain witnesses about the initial test was sufficient to support the jury’s verdict against defendant. Jones v. State, 881 So. 2d 209, 2002 Miss. App. LEXIS 869 (Miss. Ct. App. 2002), aff'd, 2003 Miss. LEXIS 588 (Miss. Oct. 30, 2003).

Trial judge improperly considered medical evidence as factor in finding sufficient indicia of reliability for admission of child victim’s hearsay statement to mother in sexual battery prosecution; to be admissible under Confrontation Clause, hearsay evidence must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial. Hennington v. State, 702 So. 2d 403, 1997 Miss. LEXIS 637 (Miss. 1997).

Reliability of child’s hearsay statement must be judged independently of any corroborating evidence; otherwise Confrontation Clause may be violated. Hennington v. State, 702 So. 2d 403, 1997 Miss. LEXIS 637 (Miss. 1997).

Testimony admitted under former testimony exception to hearsay rule does not violate Confrontation Clauses of Federal and State Constitutions. Russell v. State, 670 So. 2d 816, 1995 Miss. LEXIS 617 (Miss. 1995), cert. denied, 519 U.S. 982, 117 S. Ct. 436, 136 L. Ed. 2d 333, 1996 U.S. LEXIS 6884 (U.S. 1996), cert. dismissed, 520 U.S. 1249, 117 S. Ct. 2406, 137 L. Ed. 2d 1064, 1997 U.S. LEXIS 3537 (U.S. 1997).

A trial court in a murder prosecution erred in allowing the prosecutor to cross-examine a witness about a certified lab report of results of the defendant’s drug screen test, where the test results were never offered into evidence during the trial and the witness had no actual knowledge of the drug screen analysis; without the testimony of a sponsoring witness with personal knowledge of the facts contained therein, the drug screen report was inadmissible hearsay, and without the opportunity to cross-examine the person responsible for the information contained in the report, the defendant’s right to confront witnesses secured by the Sixth Amendment and Article 3, § 26 of the Mississippi Constitution were violated. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

In determining whether a minor rape victim’s hearsay statements qualify under the residual hearsay exception, a proper consideration for the court as to the requirement of “sufficient guarantees of trustworthiness” of the victim’s statements would be the behavior of the victim and her own mental and emotional condition as indicative of having undergone some severe emotional trauma such as sexual abuse. In considering the admissibility of testimony of this nature, a court must be extremely careful that on the one hand the rights of a defendant are protected under the witness confrontation clauses of the federal and state constitutions and the Mississippi Rules of Evidence, and, on the other hand, that testimony which on balance should be admitted under the framework of the Rules of Evidence is not excluded. Leatherwood v. State, 548 So. 2d 389, 1989 Miss. LEXIS 358 (Miss. 1989).

At the joint trial of 2 defendants charged with conspiracy to commit murder, admission, in prosecution’s case-in-chief, of co-conspirators’ post-arrest statements, wherein each co-defendant pointed a finger at the other, was reversible error, where these statements fell outside the co-conspirator’s exemption from the hearsay rule, did not interlock in substantial particulars, and were not attended by other indicia of reliability sufficient to satisfy the conspirators’ rights under the confrontation of witnesses clauses of federal and state constitutions. Mitchell v. State, 495 So. 2d 5, 1986 Miss. LEXIS 2659 (Miss. 1986), overruled in part, Smith v. State, 986 So. 2d 290, 2008 Miss. LEXIS 339 (Miss. 2008).

Police officer’s testimony that robbery suspect was identified by third party not present in courtroom and not available to be confronted and cross-examined violates right of confrontation. Miller v. State, 473 So. 2d 945, 1985 Miss. LEXIS 2161 (Miss. 1985).

79. – Unavailable witnesses, confrontation of witnesses.

Defendant’s right to a speedy trial was not violated because while defendant arguably suffered slight prejudice due to a witness’s unavailability at the second trial, that prejudice did not affect his primary theory of self-defense, which he was able to assert at both trials; defendant offered no evidence as to whether the witness’s testimony would have differed at the second trial had he been present. Newell v. State, 175 So.3d 1260, 2015 Miss. LEXIS 505 (Miss. 2015).

Testimony that the victim, on the day that the victim was murdered, had made a complaint that money was missing from the victim’s bank account was admissible because the statement was not admitted to prove that money was missing from the victim’s account, but only to show that the victim had reported the theft to the authorities, which tended to show that defendant had felt threatened, and, thus, had a motive for the murder of the victim. Batiste v. State, 121 So.3d 808, 2013 Miss. LEXIS 295 (Miss. 2013), cert. denied, 572 U.S. 1117, 134 S. Ct. 2287, 189 L. Ed. 2d 178, 2014 U.S. LEXIS 3424 (U.S. 2014).

Testimony that defendant had a sexual relationship with one of the victims, his step-son’s wife, was properly admitted under Miss. R. Evid. 804(b)(5) because the trial court carefully analyzed the five requirements of trustworthiness, materiality, probative value, interests of justice, and notice; furthermore, defendant failed to object on the basis of the Confrontation Clause. Rubenstein v. State, 941 So. 2d 735, 2006 Miss. LEXIS 411 (Miss. 2006).

Defendant’s confrontation rights under U.S. Const. Amend. VI and Miss. Const. Art. III, § 26 were not compromised in capital murder case because the trial court had determined that the victim, who was the declarant, was unavailable and that the evidence in question showed adequate indicia of reliability and trustworthiness. Rubenstein v. State, 2005 Miss. LEXIS 789 (Miss. Dec. 1, 2005), op. withdrawn, 2006 Miss. LEXIS 424 (Miss. Aug. 10, 2006), sub. op., 941 So. 2d 735, 2006 Miss. LEXIS 411 (Miss. 2006).

In a capital murder case, defendant’s confrontation rights were not violated by the admission of a co-defendant’s statement where the evidence showed that the co-defendant had committed suicide prior to trial, because they were offered to rebut defendant’s evidence of statements that the co-defendant had made to inmates. Le v. State, 913 So. 2d 913, 2005 Miss. LEXIS 151 (Miss.), cert. denied, 546 U.S. 1004, 126 S. Ct. 622, 163 L. Ed. 2d 508, 2005 U.S. LEXIS 8254 (U.S. 2005).

There was no violation of the defendant’s right to confront witnesses against him when a witness testified about DNA evidence, notwithstanding that the witness did not perform the actual tests on the various DNA samples collected from the defendant, where she did perform the scientific analysis of the data obtained. Byrd v. State, 741 So. 2d 1028, 1999 Miss. App. LEXIS 336 (Miss. Ct. App. 1999).

The admission of a calibration certificate for an intoxilyzer without testimony from the calibration officer does not, in general, violate the confrontation clauses in the Mississippi or United States constitutions, as long as the proper foundation is laid. Harkins v. State, 735 So. 2d 317, 1999 Miss. LEXIS 129 (Miss. 1999).

Where defense counsel was aware that the codefendant was unavailable as a witness, but nevertheless placed another witness on the witness stand to introduce statements made by the codefendant which favored the defendant, it was rationally inconsistent and constitutionally wanting for defense counsel to later argue that the subsequent introduction of the codefendant’s statements which disfavored the defendant was in violation of the defendant’s right to confront the codefendant. Jordan v. State, 728 So. 2d 1088, 1998 Miss. LEXIS 566 (Miss. 1998), cert. denied, 527 U.S. 1026, 119 S. Ct. 2375, 144 L. Ed. 2d 778, 1999 U.S. LEXIS 4276 (U.S. 1999).

In a prosecution for a contract murder, the defendant’s right of confrontation was not violated when the state called the coperpetrator to the stand, and the coperpetrator invoked his Fifth Amendment privilege against self-incrimination, notwithstanding the contention that the state knew that he would do so and that the state put the coperpetrator on the witness stand solely to allow the jury to infer impermissibly that the defendant had hired him; only one question was asked of the coperpetrator, establishing concretely that he would not testify, and there was no intimation in the question that the coperpetrator had ever confessed to his and the defendant’s guilt but was now remaining silent. Saunders v. State, 733 So. 2d 325, 1998 Miss. App. LEXIS 1115 (Miss. Ct. App. 1998).

In a prosecution for suborning perjury, it was error for the court to permit the introduction into evidence of a statement by the nontestifying codefendant that the defendant was going to pay him $5,000 and give him two ounces of cocaine if he won his case, notwithstanding the assertion that the statement was not introduced to prove the truth of the matter asserted. United States v. Walker, 148 F.3d 518, 1998 U.S. App. LEXIS 17107 (5th Cir. Miss. 1998).

In a prosecution for knowingly making false material declarations under oath, the introduction into evidence of statements made by the nontestifying codefendant did not violate the defendant’s right of confrontation since none of the statements directly implicated the defendant in perjuring himself. United States v. Walker, 148 F.3d 518, 1998 U.S. App. LEXIS 17107 (5th Cir. Miss. 1998).

The introduction of an audiotape of a conversation between the defendant and an unavailable witness did not violate the defendant’s right of confrontation where (1) the tape was authenticated by two other persons, both of whom had the opportunity to hear the defendant and recognize his voice, and (2) both witnesses testified as to the chain of custody of the tape. Thomas v. State, 711 So. 2d 867, 1998 Miss. LEXIS 185 (Miss. 1998).

Statements of unavailable witnesses may be precluded where they lack indicia of reliability and trustworthiness. Williams v. State, 667 So. 2d 15, 1996 Miss. LEXIS 3 (Miss. 1996), overruled in part, Smith v. State, 986 So. 2d 290, 2008 Miss. LEXIS 339 (Miss. 2008).

In order for statement of unavailable witness to be admissible under confrontation clause, particularized guarantees of trustworthiness must be shown from totality of circumstances, including only those relevant circumstances that surround making of statement and that render declarant worthy of belief. Williams v. State, 667 So. 2d 15, 1996 Miss. LEXIS 3 (Miss. 1996), overruled in part, Smith v. State, 986 So. 2d 290, 2008 Miss. LEXIS 339 (Miss. 2008).

Admission of defendant’s wife’s statement which inculpated defendant and exculpated wife from criminal liability for shooting of victim violated confrontation clause since statement lacked particularized guarantees of trustworthiness where wife was unavailable to testify, wife was involved in placing shooting victim’s body in trunk of car, giving her motive to fabricate, and statement was given while she was in custody. Williams v. State, 667 So. 2d 15, 1996 Miss. LEXIS 3 (Miss. 1996), overruled in part, Smith v. State, 986 So. 2d 290, 2008 Miss. LEXIS 339 (Miss. 2008).

80. –Guilty plea, confrontation of witnesses.

A guilty plea operates to waive the defendant’s privilege against self-incrimination, the right to confront and cross-examine the prosecution’s witnesses, the right to a jury trial, and the right that the prosecution prove each element of the offense beyond a reasonable doubt. Jefferson v. State, 556 So. 2d 1016, 1989 Miss. LEXIS 485 (Miss. 1989).

81. –Test results, confrontation of witnesses.

Forensic scientist’s testimony that a State exhibit contained cocaine did not violate defendant’s rights under the Confrontation Clause because the forensic scientist was actively involved in the production of the forensic report and had intimate knowledge of the analyses even though she did not perform the tests; the forensic scientist testified as an expert witness in the field of forensic science, with an emphasis in drug analysis, and served as a technical reviewer for the tests performed. Armstead v. State, 196 So.3d 913, 2016 Miss. LEXIS 321 (Miss. 2016).

In a felony driving under the influence case, defendant’s right to confront witnesses under the Sixth Amendment was not violated when his blood-analysis results were authenticated and testified to at trial by a forensic scientist who did not conduct the actual testing of defendant’s blood sample, where the scientist stated that he was the technical reviewer on the case and was involved in the production of the report. Ross v. State, 192 So.3d 1061, 2016 Miss. App. LEXIS 22 (Miss. Ct. App. 2016).

Trial court did not violate defendant’s rights under the Confrontation Clause because the reviewing analyst’s testimony about the lab report was admissible, even though he did not test the pills, because he had intimate knowledge of the testing and was actively involved in the production of the report. He competently discussed the testing performed on the pills, the results of the analysis, and his role. Hingle v. State, 153 So.3d 659, 2014 Miss. LEXIS 500 (Miss. 2014), cert. denied, — U.S. —, 135 S. Ct. 2388, 192 L. Ed. 2d 173, 2015 U.S. LEXIS 3610 (U.S. 2015).

Defendant’s confrontation rights were not violated because as the technical reviewer assigned to the case, the witness was familiar with each step of the complex DNA testing process conducted by the analyst; the witness personally analyzed the data generated by each test conducted by the analyst and signed the report. Galloway v. State, 122 So.3d 614, 2013 Miss. LEXIS 328 (Miss. 2013), cert. denied, 572 U.S. 1134, 134 S. Ct. 2661, 189 L. Ed. 2d 209, 2014 U.S. LEXIS 3685 (U.S. 2014).

Admission of a crime lab report was error because the surrogate testimony that was used to enter the report into evidence was presented by a police officer with no apparent relation to the Mississippi Crime Laboratory or to the report, and the analysts were not found to be unavailable, and defendant had no prior opportunity for cross-examination; the admission of the document without live testimony from an individual involved in the analysis constituted a violation of the Confrontation Clause. Burdette v. State, 110 So.3d 296, 2013 Miss. LEXIS 75 (Miss. 2013).

While an analyst’s supervisor was not involved in the testing of a substance that proved to be cocaine, as he was sufficiently involved with the analysis and had intimate knowledge about it and the report prepared by the analyst, his testimony did not violate defendant’s right of confrontation under U.S. Const. amend. VI. Jenkins v. State, 102 So.3d 1063, 2012 Miss. LEXIS 490 (Miss. 2012), cert. denied, 570 U.S. 920, 133 S. Ct. 2856, 186 L. Ed. 2d 914, 2013 U.S. LEXIS 4749 (U.S. 2013).

In the context of the defendant’s rights to confrontation, a supervisor, reviewer, or other analyst involved may testify in place of the primary analyst where that person was actively involved in the production of the report and had intimate knowledge of analyses even though he or she did not perform the scientific tests first hand. Grim v. State, 102 So.3d 1073, 2012 Miss. LEXIS 529 (Miss. 2012), cert. denied, 570 U.S. 920, 133 S. Ct. 2856, 186 L. Ed. 2d 914, 2013 U.S. LEXIS 4827 (U.S. 2013).

Though a laboratory supervisor who testified that a substance was cocaine was not involved in the actual testing, he had reviewed the report for accuracy and signed it as the case technical reviewer, and was sufficiently involved with the analysis and overall process that his testimony did not violate defendant’s right of confrontation under the Sixth Amendment, U.S. Const. amend. VI. Grim v. State, 102 So.3d 1073, 2012 Miss. LEXIS 529 (Miss. 2012), cert. denied, 570 U.S. 920, 133 S. Ct. 2856, 186 L. Ed. 2d 914, 2013 U.S. LEXIS 4827 (U.S. 2013).

While the State’s expert was accepted as an expert in toxicology, there was no testimony that she was in any way involved in the testing of defendant’s blood specimen or that she was actively involved in the production of the report and had intimate knowledge of the analyses even though she did not perform the tests first hand, and the trial court erred in admitting the test results without evidence that the expert actually performed the test or participated in its analysis; however, because overwhelming evidence was presented to the jury that defendant was intoxicated, this error was harmless. Debrow v. State, 972 So. 2d 550, 2007 Miss. LEXIS 647 (Miss. 2007).

Defendant’s confrontation rights were not violated when the trial court did not require an expert to analyze and testify to the chemical analysis of the ingredients in cold medicine as the evidence was properly admitted under Miss. R. Evid. 803(24) as the medicine had a label that was made in normal process of nationwide manufacturing and distribution by an established pharmaceutical company, thus, the label as to the medicine’s ingredients had substantial indicia of trustworthiness. Burchfield v. State, 892 So. 2d 248, 2004 Miss. App. LEXIS 538 (Miss. Ct. App.), aff'd, 892 So. 2d 191, 2004 Miss. LEXIS 1346 (Miss. 2004).

Defendant’s confrontation rights were not violated, even though defendant was unable to question the expert who performed the actual analysis on the substance found in defendant’s home as required by Miss. R. Evid. 803(6), because another witness who was charged with verifying the results did testify, and the witness was capable of testifying to the test results and the chain of custody. Mooneyham v. State, 842 So. 2d 579, 2002 Miss. App. LEXIS 472 (Miss. Ct. App. 2002), cert. denied, 2003 Miss. App. LEXIS 394 (Miss. Ct. App. Feb. 27, 2003), cert. denied, 837 So. 2d 771, 2003 Miss. LEXIS 223 (Miss. 2003).

In a prosecution for driving while intoxicated, the trial court’s refusal to compel production of an intoxilyzer machine into court to conduct a demonstration did not violate the defendant’s constitutional right to be confronted by the witnesses against him and to have compulsory process for obtaining witnesses in his favor, where the trial court ordered the city to allow the defendant the opportunity to run a test in the police station where the intoxilyzer machine was situated, the defendant failed to show that he would be unable to do what was needed in order to properly defend the case by examining and testing the machine at the police station, the defendant made no showing that he could substantially replicate the conditions of the night of his arrest, and moving the intoxilyzer machine to the court house would have been substantially disruptive and inconvenient to the city law enforcement authorities. Goforth v. Ridgeland, 603 So. 2d 323, 1992 Miss. LEXIS 348 (Miss. 1992).

82. – Medical reports, confrontation of witnesses.

Defendant was properly denied a new trial on his claim that the Confrontation Clause was violated as no attorney was present at the lineup because defendant was about to confront the eyewitness through cross-examination about his statement that he saw defendant shoot the victim. Howell v. State, 163 So.3d 240, 2014 Miss. LEXIS 496 (Miss. 2014).

Defendant’s conviction for DUI maiming was proper because he was not denied his right to confrontation. The trial judge properly ruled that the deputy’s motive or intent for obtaining consent from defendant was irrelevant, and evidence of it should not have been presented to the jury; additionally, defendant never properly moved the trial court to make an on-the-record finding outside the presence of the jury, nor did defendant ever proffer any evidence that he was suffering from diminished capacity to consent to the blood test. Irby v. State, 2010 Miss. LEXIS 423 (Miss. Aug. 12, 2010), sub. op., 49 So.3d 94, 2010 Miss. LEXIS 638 (Miss. 2010).

“Abuse record” prepared by attending physician was not created for the purpose of aiding the prosecution and was not testimonial, but rather was used in the treatment of the abuse viction, defendant’s child, and therefore its admission at trial did not violate defendant’s right to confront witnesses testifying against her under U.S. Const., Amend VI. Anthony v. State, 23 So.3d 611, 2009 Miss. App. LEXIS 930 (Miss. Ct. App. 2009).

83. – Cross-examination, confrontation of witnesses.

In a case in which defendant appealed his sentence of death by lethal injection for violating Miss. Code Ann. §§97-3-19(2)(f), he argued unsuccessfully that the prosecution committed misconduct by improperly cross-examining a mitigation witness, thereby depriving him of a fundamentally fair sentencing. The witness, a former teacher, was questioned about defendant’s drinking habits and illegal drug use, and, while defendant argued that there was no evidentiary basis for that line of questioning, the questioning was based a mental health evaluation that was properly before the court; since the questioning of the witness was to test her knowledge of defendant’s habits, there was no battle of opinions between the doctor who prepared the report and the witness such that the doctor had to be called as a witness to avoid a violation of the Confrontation Clause. Wilson v. State, 21 So.3d 572, 2009 Miss. LEXIS 450 (Miss. 2009), cert. denied, 560 U.S. 909, 130 S. Ct. 3282, 176 L. Ed. 2d 1191, 2010 U.S. LEXIS 3966 (U.S. 2010).

Trial judge did not err in not allowing defendant to question arresting police officers regarding their termination from the police department because the testimony was not relevant as defendant’s assertions were general in nature, and defense counsel never established with certainty why the two officers were terminated and what effect that had on defendant’s case; defendant’s right to confrontation was not violated. Betts v. State, 10 So.3d 519, 2009 Miss. App. LEXIS 29 (Miss. Ct. App. 2009).

Although a trial court abused its discretion when it denied defendant the opportunity to re-cross-examine a victim about the victim’s probation revocation, the error was harmless because defendant was allowed an extensive opportunity to impeach the victim regarding the victim’s drug use and criminal history; the jury also heard evidence that the victim was smoking marijuana on the day of the shooting. Moore v. State, 1 So.3d 871, 2008 Miss. App. LEXIS 381 (Miss. Ct. App. 2008), cert. denied, 999 So. 2d 1280, 2009 Miss. LEXIS 59 (Miss. 2009).

Videotaped testimony of forensic interviewer and victim was hearsay, but based on the fact that law enforcement was intimately involved in obtaining the interview and was present at the interview, the videotaped interview was testimonial in nature; defendant was not unduly prejudiced because he cross-examined the victim later during the trial and even called her during his case-in-chief, and he had the opportunity to question her about her statements on the videotape and in general. Williams v. State, 970 So. 2d 727, 2007 Miss. App. LEXIS 577 (Miss. Ct. App. 2007).

Defendant’s convictions for murder and aggravated assault were proper where he was not denied his constitutional right to confrontation because he was permitted to cross-examine the living victim as well as all other witnesses who testified for the State. McGee v. State, 929 So. 2d 353, 2006 Miss. App. LEXIS 53 (Miss. Ct. App. 2006).

Victim testified at the trial, and defendant had the opportunity to extensively cross-examine him, and therefore his right to confront witnesses against him under the Sixth Amendment was not violated; the videotape of the victim’s statement to the police was not offered as direct evidence, but was offered as a prior consistent statement under Miss. R. Evid. 801(d)(1)(B) to refute defense counsel’s implication that the tape had been fabricated, and the witness testified and was cross-examined. Mingo v. State, 944 So. 2d 18, 2006 Miss. LEXIS 679 (Miss. 2006).

Because defendant lacked the opportunity to cross-examine his co-defendant, the trial court erred in allowing the police officer to testify concerning the co-defendant’s statement; however, the erroneous admission of the statement was harmless error where the impact of the erroneously admitted statement was so insignificant that it could not have contributed in any meaningful way to the guilty verdict. Bynum v. State, 929 So. 2d 312, 2006 Miss. LEXIS 261 (Miss.), cert. denied, 549 U.S. 962, 127 S. Ct. 403, 166 L. Ed. 2d 286, 2006 U.S. LEXIS 7652 (U.S. 2006).

Defendant’s conviction for fondling was appropriate because a forensic examiner’s testimony was not in violation of the Confrontation Clause of the Sixth Amendment since the examiner was available to testify as a witness and defendant did have the opportunity to cross-examine him. Higdon v. State, 938 So. 2d 340, 2006 Miss. App. LEXIS 699 (Miss. Ct. App. 2006).

Any error that occurred as a result of the trial court excluding defendant’s line of questioning to the victim about the victim’s grand jury testimony was harmless error as the testimony that defendant was trying to elicit, that the victim had previously told others he did not know who his assailant was, was before the jury as the victim had admitted that he had told people that during cross-examination. Thus, defendant’s confrontation rights were not violated. Harris v. State, 901 So. 2d 1277, 2004 Miss. App. LEXIS 1120 (Miss. Ct. App. 2004), cert. denied, 898 So. 2d 679, 2005 Miss. LEXIS 279 (Miss. 2005).

Trial court did not violate defendant’s confrontation rights in limiting his examination of two eyewitnesses to the shooting as defendant was questioning the witnesses about whether they were told what to testify by the police when he had no basis in fact for doing so, and was repeating questions that had already been answered. Harris v. State, 901 So. 2d 1277, 2004 Miss. App. LEXIS 1120 (Miss. Ct. App. 2004), cert. denied, 898 So. 2d 679, 2005 Miss. LEXIS 279 (Miss. 2005).

In a case involving receiving stolen property, defendant’s confrontation rights were not violated when a trial court allowed the State to exceed the scope of cross-examination during redirect to ask about money orders cashed in Mississippi because defense counsel opened the door to such testimony by inquiring about which states the money orders had been cashed in. Massey v. State, 863 So. 2d 1019, 2004 Miss. App. LEXIS 30 (Miss. Ct. App. 2004).

Defendant did not agree to the admission of the packages of medication or waive his right to confront and cross-examine the person who labeled the medication as containing ephedrine, and the State failed to present any evidence that the medications had been chemically analyzed and determined to contain ephedrine or pseudoephedrine; thus, the State failed to carry its burden of proof as to an essential element of possession of precursor drugs with knowledge that the drugs would be used to manufacture a controlled substance, and defendant’s Sixth Amendment right to confrontation was violated; therefore, the trial court reversed his conviction. Burchfield v. State, 2003 Miss. App. LEXIS 660 (Miss. Ct. App. July 22, 2003), op. withdrawn, sub. op., 892 So. 2d 248, 2004 Miss. App. LEXIS 538 (Miss. Ct. App. 2004).

Trial court did not commit reversible error by prohibiting trial counsel from delving into victim’s prior criminal history. McNair v. State, 814 So. 2d 153, 2001 Miss. App. LEXIS 428 (Miss. Ct. App. 2001).

In a prosecution for selling crystal methamphetamine, the right of the defendant to confront witnesses against him was violated where he was not permitted to cross-examine a confidential informant with regard to his out-of-state drug violation which occurred after his purchases from the defendant. White v. State, 785 So. 2d 1059, 2001 Miss. LEXIS 44 (Miss. 2001).

Where a defense witness invoked the Fifth Amendment, so that his testimony on direct-examination yielded nothing, the trial court erred in permitting the prosecutor to cross-examine the witness concerning a prior statement made by him; when the prosecutor, through the use of leading questions, parades before the jury the “testimony” of a silent witness, this violates the confrontation clause since the prosecutor cannot take the stand to be cross-examined by the defendant about the silent witness’ “testimony”. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

A defendant’s constitutional right to confront witnesses was violated by the prosecution’s attempted cross-examination of a witness who had been called as an adverse witness by the defendant, where the witness pleaded her privilege against self-incrimination on direct examination, and then, on cross-examination, the prosecuting attorney purportedly read from the witness’ pre-trial statement, which implied the defendant’s guilt, before each of the witness’ claim of privilege against self-incrimination. However, the error was harmless beyond a reasonable doubt where the evidence against the defendant was overwhelming. Hansen v. State, 592 So. 2d 114, 1991 Miss. LEXIS 876 (Miss. 1991), cert. denied, 504 U.S. 921, 112 S. Ct. 1970, 118 L. Ed. 2d 570, 1992 U.S. LEXIS 2882 (U.S. 1992).

A trial court erred in admitting accomplices’ statements into evidence in a murder prosecution under Rule 106, Miss. R. Ev., which contemplates the introduction of a writing by a party and contemporaneous introduction of other parts of the statement to prevent the misleading of the jury, where the defense counsel was merely cross-examining the police officer who investigated the accomplices and he in no way introduced parts of these statements into evidence. Additionally, there were serious confrontation problems since the jury was unable to observe the demeanor of the accomplices when they made the unsworn statements and the statements were taken under the coercive atmosphere of police interrogation. Welch v. State, 566 So. 2d 680, 1990 Miss. LEXIS 152 (Miss. 1990).

A trial court committed reversible error during the sentencing phase of a capital case in permitting the prosecutor to use a psychiatric evaluation to cross-examine a defense witness in violation of the Sixth Amendment right to confront witnesses where the doctors who wrote the evaluation were not called for trial and could not be cross-examined by the defendant. Lanier v. State, 533 So. 2d 473, 1988 Miss. LEXIS 523 (Miss. 1988).

Mere calling of witness by State who invoked Fifth Amendment privilege against self-incrimination would not be sufficient grounds for reversal of capital murder conviction; however, where state was allowed to call other witnesses to testify regarding alleged confession given by that witness, wherein he had detailed events of murder and implicated defendant as party to murder, defendant’s right to confront and cross-examine witnesses presented against her was violated. Witness invoking Fifth Amendment privilege against self-incrimination and refusing to answer any questions regarding confession effectively prevented defendant from conducting meaningful cross-examination in violation of her constitutionally protected rights; fact that defendant was allowed to cross-examine both witnesses concerning circumstances under which confession was given could not hardly be substitute for meaningful cross-examination of declarant himself; state’s contention that this evidence was properly admitted to impeach testimony given by witness was rejected, where state was allegedly attempting to impeach witness concerning statement that was accurate and truthful, which was that jury had previously decided whether he had killed decedent; court stated that it knew of no authority where truthful statements were held to be impeachable; instruction to jury that testimony was to be viewed only for impeachment purposes did nothing to diminish importance of this testimony and certainly did not cure constitutional error. Williamson v. State, 512 So. 2d 868, 1987 Miss. LEXIS 2683 (Miss. 1987), Walton v. State, 678 So. 2d 645, 1996 Miss. LEXIS 192 (Miss. 1996).

Circuit Court erred when it refused to allow cross-examination of principal witness for State because one accused of crime has right to broad and extensive cross-examination of witnesses against him, and evidence that material witness has received favored treatment at hands of law enforcement authorities, particularly where that witness is himself subject to prosecution, is probative of witness’ interest or bias and may be developed through cross-examination or otherwise presented to jury. Suan v. State, 511 So. 2d 144, 1987 Miss. LEXIS 2675 (Miss. 1987).

Party improperly denied cross-examination is not required to make pro-offer of witness’ testimony as would otherwise be required. Suan v. State, 511 So. 2d 144, 1987 Miss. LEXIS 2675 (Miss. 1987).

Defendant was denied fundamental right to be confronted with witnesses against him because restriction on cross examination in trial court prevented defendant from questioning key prosecution witness concerning bias or motive in testifying. Foster v. State, 508 So. 2d 1111, 1987 Miss. LEXIS 2557 (Miss. 1987), overruled in part, Powell v. State, 806 So. 2d 1069, 2001 Miss. LEXIS 271 (Miss. 2001).

Cross-examination of victim was not unduly restricted either to develop defendant’s state of mind at time of incident or for pure impeachment purpose, where cross-examination involved collateral issue concerning business practices of victim and did not constitute viable defense to indictment for aggravated assault, and was sufficiently extraneous to charge in indictment and sufficiently unprovoked by victim’s direct testimony that restriction of the cross-examination was matter within discretion of trial judge. Black v. State, 506 So. 2d 264, 1987 Miss. LEXIS 2468 (Miss. 1987).

In a prosecution for rape, the trial court correctly excluded evidence concerning the prosecutrix’ sexual conduct after holding an in-chambers hearing to determine if such testimony would be relevant, where the prosecutrix unequivocally testified that she had not had sexual intercourse with anyone during the month prior to the rape, where defendant produced no evidence to the contrary, and where any evidence of her sexual conduct prior to the month before the rape would be too remote and, therefore incompetent, irrelevant and immaterial; thus, defendant was not denied his constitutional right to cross-examine and confront the witnesses against him. Johnston v. State, 376 So. 2d 1343, 1979 Miss. LEXIS 2516 (Miss. 1979).

In a prosecution for grand larceny, the trial court did not commit prejudicial error in admitting a codefendant’s incriminatory statement into evidence during the state’s case in chief where the codefendant later testified in his own behalf and was cross-examined by counsel for defendant; thus, defendant’s Sixth Amendment right of confrontation was not violated. Langston v. State, 373 So. 2d 611, 1979 Miss. LEXIS 2299 (Miss. 1979).

The defendant was denied the right to a full and complete cross-examination when the witness, whether rightfully or not, successfully invoked the privilege against self-incrimination, and the defendant’s motion for the court to instruct the jury to disregard the witness’ testimony should have been sustained, and failure of the court to do so was error. Frackman v. Deposit Guaranty Nat'l Bank, 296 So. 2d 695, 1974 Miss. LEXIS 1532 (Miss. 1974).

In a forgery prosecution, dismissal of the state’s witness after he had given the only evidence introduced in the case which identified the defendant as the person who cashed the check, and had indicated that the defendant had cashed bad checks on other occasions, without giving the defendant an opportunity to cross-examine the witness, was prejudicial error, since it denied the defendant his right to be confronted by witnesses against him, and deprived him of due process of law. Crapps v. State, 221 So. 2d 722, 1969 Miss. LEXIS 1505 (Miss. 1969).

84. –Collateral matters, confrontation of witnesses.

Trial court did not violate defendant’s Sixth Amendment right to confrontation by excluding testimony that his victims were smoking marijuana at the time he assaulted them by limiting his ability to cross-examine one victim regarding the intoxication; the evidence was properly excluded under Miss. R. Evid. 401 and 402 because defendant presented no evidence that smoking marijuana increased a person’s propensity for violence generally or that smoking marijuana increased the victim’s propensity for violence. Since defendant did not meet the threshold for establishing the probative value of the evidence, the testimony on whether the victim had been smoking marijuana the morning of the assault was irrelevant. Rouster v. State, 981 So. 2d 314, 2007 Miss. App. LEXIS 781 (Miss. Ct. App. 2007).

Trial court did not violate defendant’s Sixth Amendment right to confrontation by excluding testimony that his victims were smoking marijuana at the time he assaulted them by limiting his ability to cross examine one victim regarding the intoxication. The trial court properly balanced the probative and prejudicial effects of the evidence under Miss. R. Evid. 403, and found that the proposed testimony would have had no probative value because the possible testimony of marijuana usage was not linked to a propensity for violence; also, the prejudicial fact that the possible intoxication was of an illegal substance – marijuana – and not mere alcohol, further outweighed any probative effect. Rouster v. State, 981 So. 2d 314, 2007 Miss. App. LEXIS 781 (Miss. Ct. App. 2007).

In defendant’s trial on charges of violating Miss. Code Ann. §97-11-53, inducement to influence a public official to approve a property owner’s construction project, the trial court did not violate defendant’s Sixth Amendment right to confront witnesses in limiting defendant’s cross-examination of the property owner because defendant sought to inquire about other lawsuits in which the property owner was involved and the trial court had determined that the property owner had not been convicted of any of the wrongdoings for which defense counsel wished to impeach his testimony, thus the trial court ruled that the testimony sought to be elicited from the property owner would not have been allowed by Miss. R. Evid. 609 and that it would have been unduly prejudicial, in violation of Miss. R. Evid. 403. Because the trial court’s ruling was in accordance with the Mississippi Rules of Evidence, no abuse of discretion was present. Edmonson v. State, 906 So. 2d 73, 2004 Miss. App. LEXIS 1124 (Miss. Ct. App. 2004).

A trial court’s refusal to permit a capital murder defendant to impeach an eyewitness regarding his statement that he had been employed by his cousin for part of the previous year did not deprive the defendant of his constitutional right to confront witnesses against him since the issue of the witness’ employment was a collateral matter; the constitutional right to confront witnesses applies only to issues pertinent to the crime charged, and the general rule that a party may not impeach a witness on collateral matters is applicable. Conner v. State, 632 So. 2d 1239 (Miss. 1993), cert. denied, 513 U.S. 927, 115 S. Ct. 314, 130 L. Ed. 2d 276 (1994), post-conviction relief denied, 684 So. 2d 608 (Miss. 1996), reh’g denied (Miss. 1996), overruled on other grounds, Weatherspoon v. State, 732 So. 2d 158, 1999 Miss. LEXIS 4 (Miss. 1999).

85. –Waiver, confrontation of witnesses.

Although defendant argued the testimony of a police chief was admitted in violation of the Confrontation Clause, defendant waived the issue by failing to object on the basis that he was denied the right to confront the witnesses who provided statements to the chief. Johnson v. State, 224 So.3d 549, 2017 Miss. App. LEXIS 104 (Miss. Ct. App. 2017).

Introduction of statements by codefendant did not violate defendant’s rights under the Confrontation Clause where, since codefendant did the actual shooting and was the only other witness to the shooting besides defendant, given the fact that he gave conflicting statements, the obvious purpose in admitting the statements was to call into question whether anything codefendant said about defendant’s participation could be believed; since there was a legitimate trial tactic or purpose involved in putting the statements into evidence, there was no ground to find that the waiver of the right of confrontation was invalid. Campbell v. State, 883 So. 2d 115, 2004 Miss. App. LEXIS 374 (Miss. Ct. App. 2004).

Defendant’s right of confrontation was not violated by the admission of his co-defendant’s redacted statement, as all references to defendant were omitted. Broomfield v. State, 878 So. 2d 207, 2004 Miss. App. LEXIS 1182 (Miss. Ct. App.), cert. denied, 878 So. 2d 66, 2004 Miss. LEXIS 935 (Miss. 2004).

In defendant’s capital murder case, a court properly allowed an expert to testify on behalf of a coworker where the witness had been involved in the lab analysis, and the testimony did not concern an essential element of the crime. McGowen v. State, 859 So. 2d 320, 2003 Miss. LEXIS 413 (Miss. 2003).

Defendants’ convictions for armed robbery were proper where the first defendant was not denied his confrontation rights under U.S. Const. Amend. VI because of the admission of the other defendant’s redacted statement; the record reflected that all references to the first defendant were omitted. Broomfield v. State, 2003 Miss. App. LEXIS 914 (Miss. Ct. App. Oct. 7, 2003), op. withdrawn, sub. op., 878 So. 2d 207, 2004 Miss. App. LEXIS 1182 (Miss. Ct. App. 2004).

Trial court did not abuse its discretion in refusing to allow a defendant on trial for capital murder to attempt to impeach a former police detective who had been arrested for, but not convicted, of bribery because the arrest was irrelevant to the detective’s credibility and the acts were too far removed to have probative value; trial court’s action did not deprive defendant of his right to confront the witness. Ellis v. State, 856 So. 2d 561, 2003 Miss. App. LEXIS 456 (Miss. Ct. App.), cert. denied, 860 So. 2d 1223, 2003 Miss. LEXIS 892 (Miss. 2003).

Defendant’s conviction for depraved heart murder was proper where the trial court did not err when it overruled defendant’s objection to the testimony of a witness regarding statistical data regarding DNA evidence because defendant objected on the ground that the witness was not a statistician and thus not qualified to testify about statistical results but the witness did not make the statistical calculations about which he was testifying; further, there was no error and defendant was not denied his rights to confront and cross-examine witnesses against him. Edwards v. State, 856 So. 2d 587, 2003 Miss. App. LEXIS 557 (Miss. Ct. App.), cert. dismissed, 860 So. 2d 1223, 2003 Miss. LEXIS 812 (Miss. 2003), cert. denied, 571 U.S. 841, 134 S. Ct. 92, 187 L. Ed. 2d 69, 2013 U.S. LEXIS 6108 (U.S. 2013).

Defendant did not agree to the admission of the packages of medication or waive his right to confront and cross-examine the person who labeled the medication as containing ephedrine, and the State failed to present any evidence that the medications had been chemically analyzed and determined to contain ephedrine or pseudoephedrine; thus, the State failed to carry its burden of proof as to an essential element of possession of precursor drugs with knowledge that the drugs would be used to manufacture a controlled substance, and defendant’s Sixth Amendment right to confrontation was violated; therefore, the trial court reversed his conviction. Burchfield v. State, 2003 Miss. App. LEXIS 660 (Miss. Ct. App. July 22, 2003), op. withdrawn, sub. op., 892 So. 2d 248, 2004 Miss. App. LEXIS 538 (Miss. Ct. App. 2004).

Trial court did not err in admitting the tape-recorded statement of defendant’s mother, who was unavailable at the time of trial based on her mental condition, under Miss. R. Evid. 804(b)(5) because (1) the mother was able to give an accurate statement when it was taken and (2) the statement was reliable because she was an eyewitness to the incident where defendant fatally shot defendant’s brother, and there was no reason to believe that the mother harbored prejudice against one son or the other; even if it was error for the trial court to have admitted the statement, the error was harmless and there was no violation of the Confrontation Clause under U.S. Const. Amend. VI, Miss. Const. Art. 3, § 26 because the evidence proved convincingly that defendant’s conviction of manslaughter was proper. Thornton v. State, 841 So. 2d 170, 2003 Miss. App. LEXIS 76 (Miss. Ct. App. 2003).

The right of confrontation under the Sixth Amendment of the United States Constitution and the Mississippi Constitution does not inure to the benefit of the State in prosecuting criminal cases. Randall v. State, 806 So. 2d 185, 2001 Miss. LEXIS 243 (Miss. 2001), overruled in part, Ambrose v. State, 254 So.3d 77, 2018 Miss. LEXIS 326 (Miss. 2018).

The Confrontation Clause was violated when a co-defendant’s incriminating statement was introduced at a joint trial, even if the jury was instructed to consider the statement only against the person who made it. Harrington v. State, 793 So. 2d 626, 2001 Miss. LEXIS 222 (Miss. 2001), overruled in part, Smith v. State, 986 So. 2d 290, 2008 Miss. LEXIS 339 (Miss. 2008).

The defendant was not denied the right to confront his accuser, notwithstanding his assertion that an investigator for the juvenile division of the state police was his primary accuser, but that the state chose not to call her to testify at trial; the record revealed that the defendant was allowed to fully cross-examine all of the state’s witnesses who testified against him and there was no indication in the record that the investigator ever accused the defendant of murdering the victim. Conley v. State, 790 So. 2d 773, 2001 Miss. LEXIS 100 (Miss. 2001).

In a prosecution for abuse of a vulnerable adult, the failure of the state to call an investigator for the Mississippi Attorney General’s Office as a witness did not result in a violation of the defendant’s right of confrontation since the investigator did not witness the events at issue and was not an original accuser. Boatner v. State, 754 So. 2d 1184, 2000 Miss. LEXIS 57 (Miss. 2000).

Where there was no evidence in the record to suggest that the defendant dissented to his attorney’s decision to stipulate to the testimony of a handwriting expert at the time it was made, the trial court did not abuse its discretion in allowing such stipulation, and the defendant thereby waived his right to confront the handwriting expert. Waldon v. State, 749 So. 2d 262, 1999 Miss. App. LEXIS 556 (Miss. Ct. App. 1999).

86. Compulsory process.

Although cross-examination of the victim of an armed robbery regarding his indictment on an aggravated assault charge might have caused the jury to disbelieve the victim’s testimony against defendant, the trial court properly excluded the evidence because the victim had invoked his Fifth Amendment right against self-incrimination and defendant’s Sixth Amendment rights had to yield to the victim’s Fifth Amendment rights. Renfro v. State, 118 So.3d 560, 2013 Miss. LEXIS 150 (Miss. 2013).

Defendant was not denied his constriction right to compulsory service of process because it did not make a witness unavailable; rather, defendant cross-examined the witness, and the circuit court clearly was willing to have the witness returned to court to give additional testimony if necessary. Patton v. State, 109 So.3d 66, 2012 Miss. LEXIS 612 (Miss. 2012), cert. denied, 571 U.S. 1075, 134 S. Ct. 687, 187 L. Ed. 2d 556, 2013 U.S. LEXIS 8618 (U.S. 2013).

Circuit court did not abuse its discretion in releasing a witness from his subpoena because defendant refused to divulge how the witness’s testimony would aid his defense and made no showing that there was a colorable need for his testimony; therefore, defendant was not denied his constriction right to compulsory service of process. Patton v. State, 109 So.3d 66, 2012 Miss. LEXIS 612 (Miss. 2012), cert. denied, 571 U.S. 1075, 134 S. Ct. 687, 187 L. Ed. 2d 556, 2013 U.S. LEXIS 8618 (U.S. 2013).

Where defendant’s wife was his co-defendant, both were charged with drug possession, co-defendant moved for a directed verdict at the close of the State’s case, and the trial court delayed granting co-defendant’s motion until the conclusion of the presentation of all of the evidence, defendant did not assert a valid claim in arguing that his rights under the Sixth and Fourteenth Amendments were violated because, if co-defendant had been timely discharged, she would have testified on his behalf and given testimony that exculpated him of the charged offense. Defendant could cite no authority for his standing to claim trial error for the failure to grant a co-defendant’s motion for a directed verdict, and the trial court would not be placed in error on an alleged untimely grant of a motion for a directed verdict in favor of a co-defendant based on defendant’s compulsory process argument. Roach v. State, 7 So.3d 911, 2009 Miss. LEXIS 199 (Miss.), cert. denied, 558 U.S. 949, 130 S. Ct. 399, 175 L. Ed. 2d 274, 2009 U.S. LEXIS 7474 (U.S. 2009).

Defendant’s conviction for manslaughter was appropriate because defendant was guilty of a willful discovery violation since he offered no reason whatsoever for not disclosing the statements at issue, even though the case had been pending for approximately four years; because defendant’s discovery violation was willful, his Sixth Amendment right to compulsory process was not violated. Lindsey v. State, 965 So. 2d 712, 2007 Miss. App. LEXIS 357 (Miss. Ct. App. 2007).

Defendant’s conviction for the sale of marijuana within a correctional facility was appropriate because the circuit court did not err in failing to grant defendant’s motion for a continuance since the record contained no affidavits or any other indication that anyone knew a probationer’s whereabouts, and there was no indication that the probationer would likely have been available at some time in the future. Jackson v. State, 962 So. 2d 649, 2007 Miss. App. LEXIS 104 (Miss. Ct. App.), cert. denied, 962 So. 2d 38, 2007 Miss. LEXIS 434 (Miss. 2007).

Defendant’s discovery violation in not providing a defense witness list to the State until the morning that the trial began was willful and motivated by a desire to obtain a tactical advantage, and therefore, the circuit court properly excluded the evidence and did not violate the Compulsory Process Clause. Morris v. State, 927 So. 2d 744, 2006 Miss. LEXIS 113 (Miss. 2006).

The exclusion of a defense witness by the trial court was not a violation of the defendant’s Sixth Amendment compulsory process rights where the witness was excluded because the defendant failed to provide the name of the witness to the state in a timely manner. Beckwith v. Anderson, 89 F. Supp. 2d 788, 2000 U.S. Dist. LEXIS 2238 (S.D. Miss. 2000).

The defendant was not denied his right to have compulsory process for obtaining witnesses in his favor where (1) the state issued several subpoenas on behalf of the defendant, but each was returned unserved, and (2) the defendant failed to make a reasonable effort to locate one witness and made no effort at all to find another witness. Thompson v. State, 773 So. 2d 955, 2000 Miss. App. LEXIS 375 (Miss. Ct. App. 2000).

In a prosecution for driving while intoxicated, the trial court’s refusal to compel production of an intoxilyzer machine into court to conduct a demonstration did not violate the defendant’s constitutional right to be confronted by the witnesses against him and to have compulsory process for obtaining witnesses in his favor, where the trial court ordered the city to allow the defendant the opportunity to run a test in the police station where the intoxilyzer machine was situated, the defendant failed to show that he would be unable to do what was needed in order to properly defend the case by examining and testing the machine at the police station, the defendant made no showing that he could substantially replicate the conditions of the night of his arrest, and moving the intoxilyzer machine to the court house would have been substantially disruptive and inconvenient to the city law enforcement authorities. Goforth v. Ridgeland, 603 So. 2d 323, 1992 Miss. LEXIS 348 (Miss. 1992).

A judge’s refusal to permit a criminal defendant’s children to testify did not violate federal and state constitutional provisions entitling a defendant to access to witnesses where the judge provided the defendant with an opportunity show a “colorable need” for calling the children to testify and the defendant failed to show such a need. Edwards v. State, 594 So. 2d 587, 1992 Miss. LEXIS 47 (Miss. 1992).

A defendant’s constitutional right to compulsory process for obtaining witnesses in his favor was violated where the trial court quashed the defendant’s subpoenas to a district attorney and 2 deputy sheriffs who allegedly had first-hand knowledge of incidents that had happened at the county jail which would have been relevant to the defense of duress, since without their testimony the defendant had no defense to the charge of conspiracy to commit a jail escape. Hentz v. State, 542 So. 2d 914, 1989 Miss. LEXIS 223 (Miss. 1989).

Since Bar disciplinary proceedings are inherently adversarial proceedings of a quasi-criminal nature, in the course of those proceedings there is secured to the accused attorney the right to due process of law, and within such secured due process right is the right of the accused attorney to have access to compulsory process for obtaining attendance of witnesses at critical stages of the proceedings. Attorney K. v. Mississippi State Bar Asso., 491 So. 2d 220, 1986 Miss. LEXIS 2522 (Miss. 1986).

Disciplinary proceedings against an attorney before the Committee on Complaints were held in violation of the attorney’s due process rights secured by United States and Mississippi constitutions and by Mississippi Code §73-3-307, where, at a critical stage, no subpoena was issued, despite the attorney’s verbal and written request therefor, to secure the attendance of the chancery judge whom the attorney had allegedly deceived, and the judge, who was a crucial witness, did not appear before the Committee. Attorney K. v. Mississippi State Bar Asso., 491 So. 2d 220, 1986 Miss. LEXIS 2522 (Miss. 1986).

Fact that evidentiary rules may restrain testimony to be given by witness called by accused does not, in itself, violate accused’s right to process to call witness. Holmes v. State, 483 So. 2d 684, 1986 Miss. LEXIS 2365 (Miss. 1986).

Trial court’s refusal to summon prisoners to testify in capital murder case, as requested by defendant, does not violate defendant’s right to compulsory process where testimony by prisoners would be inadmissible hearsay. Gray v. State, 472 So. 2d 409 (Miss. 1985), rev’d on other grounds, 481 U.S. 648, 107 S. Ct. 2045, 95 L. Ed. 2d 622 (1987), and see Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

In a prosecution for forgery, the trial court’s refusal to provide defendant, an indigent, with funds to procure a handwriting expert to counter testimony of the state’s expert witness was not a denial of defendant’s state or federal constitutional right to process for such witness where defendant’s guilt or innocence was scarcely, if at all, dependent on the state’s expert witness; the determination of whether the state owes an indigent the duty of providing an expert as a part of due process must be made on a case by case basis. Davis v. State, 374 So. 2d 1293, 1979 Miss. LEXIS 2409 (Miss. 1979).

In a criminal prosecution, where the trial court was without authority to compel the attendance of witnesses requested by the defendant under any circumstances, so long as they were outside the state, the court’s denial of compulsory process for the attendance of three witnesses confined in penitentiaries in other states, and a fourth witness who resided out of the state, did not constitute a denial of due process or equal protection. Diddlemeyer v. State, 234 So. 2d 292, 1970 Miss. LEXIS 1402 (Miss.), cert. denied, 400 U.S. 917, 91 S. Ct. 177, 27 L. Ed. 2d 157, 1970 U.S. LEXIS 471 (U.S. 1970).

Code 1942 § 1895 does not authorize a court to procure the attendance and testimony of witnesses for an accused at public expense, and an accused is not deprived of his constitutional right to compulsory process and to due process of law and equal protection of the laws by the refusal of a court to order an allowance for the payment of witnesses sought by the defendant to be subpoenaed from another state pursuant to such section. Diddlemeyer v. State, 234 So. 2d 292, 1970 Miss. LEXIS 1402 (Miss.), cert. denied, 400 U.S. 917, 91 S. Ct. 177, 27 L. Ed. 2d 157, 1970 U.S. LEXIS 471 (U.S. 1970).

87. Assistance of counsel – In general.

While trial counsel was deficient for failing to request an accomplice-testimony instruction, as the State used such testimony to identify defendant as the shooter, the deficient performance did not prejudice the defense, as the jury heard testimony from a nonaccomplice witness that defendant admitted his involvement in the robbery and could have deduced from accomplice’s testimony that he had an incentive to lie. Carson v. State, 212 So.3d 22, 2016 Miss. LEXIS 473 (Miss. 2016), cert. denied, — U.S. —, 138 S. Ct. 482, 199 L. Ed. 2d 367, 2017 U.S. LEXIS 7069 (U.S. 2017).

Defendant’s trial counsel was not ineffective for failing to renew his motion for a directed verdict at the close of the defense’s case-in-chief, as counsel did file a motion for judgment notwithstanding the verdict or, in the alternative, a new trial, giving the trial court an opportunity to review the sufficiency and weight of the evidence. Brooks v. State, 203 So.3d 1134, 2016 Miss. LEXIS 472 (Miss. 2016).

Defendants were not denied the effective representation of counsel when the court properly denied a continuance to allow defendants’ counsel to prepare for trial after he took the case a few days before trial because defendants pointed to no witness whose questioning might have made a difference, nor did they point to anything in the documents that could have been discovered had counsel had more time to review the case. Salts v. State, 984 So. 2d 1050, 2008 Miss. App. LEXIS 199 (Miss. Ct. App.), cert. denied, 984 So. 2d 277, 2008 Miss. LEXIS 334 (Miss. 2008).

Defendant was not denied his Sixth Amendment right to counsel because defendant entered a valid guilty plea, waiving defendant’s rights under the Sixth Amendment, and defendant had appointed counsel from the time charged until defendant entered a guilty plea and had also retained counsel at the time defendant entered a plea. Frith v. State, 984 So. 2d 316, 2007 Miss. App. LEXIS 661 (Miss. Ct. App. 2007), cert. dismissed, 2008 Miss. LEXIS 293 (Miss. June 12, 2008).

Defendant claimed ineffective assistance of counsel during his trial for possession of marihuana and cocaine, and possession of a weapon; however, defendant merely raised the issue in his brief without pointing to any part of the record that would substantiate his claim; as such, the issue was without merit. Chester v. State, 935 So. 2d 976, 2006 Miss. LEXIS 368 (Miss. 2006).

Appellant’s conviction for two counts of sexual battery was upheld because he did not allege that he suffered any untoward consequences because he did not have pre-indictment counsel, aside from the fact that he was indicted; he claimed only that, if counsel had been available, counsel could have objected to the hearsay testimony introduced during the grand jury proceedings, and could have filed a motion to dismiss. Jones v. State, 962 So. 2d 571, 2006 Miss. App. LEXIS 383 (Miss. Ct. App. 2006).

In an armed robbery case, defendant’s counsel was not ineffective by spending as much time as he did attempting to show that defendant left his fingerprints at the scene on an earlier occasion as defendant’s fingerprints were the only physical evidence tying defendant to the crime scene; had defense counsel succeeded in establishing that defendant left his fingerprints at some time unconnected with the robbery, then his alibi would have been strengthened. As such, the actions of defendant’s counsel concerning the fingerprint evidence fell within the wide range of reasonable professional assistance. Madison v. State, 923 So. 2d 252, 2006 Miss. App. LEXIS 155 (Miss. Ct. App. 2006).

In a possession of cocaine case, defendant was not denied effective assistance of counsel when his attorney failed to object to the jurisdiction of the trial court after the State amended the indictment to include the habitual offender charge. The trial court had jurisdiction under Miss. Unif. Cir. & County Ct. Prac. R. 7.09, and the evidence showed that defendant was afforded a fair opportunity to present a defense and was not surprised with the habitual offender amendment, as required by Rule 7.09. Troupe v. State, 922 So. 2d 844, 2006 Miss. App. LEXIS 144 (Miss. Ct. App. 2006).

Defendant’s counsel was not ineffective because a potential juror made no indication during the extensive questioning following her objectionable comments that in any way revealed that she would be unable to be fair and impartial in deciding whether defendant was guilty or not guilty, and if found guilty, in deciding the appropriate sentence; given the multiple opportunities that the potential juror had to notify the trial court or the attorneys of any potential problems she may have had in sitting on the jury, trial counsel’s performance was not so deficient that it prevented counsel from functioning as guaranteed by the Sixth Amendment. Havard v. State, 928 So. 2d 771, 2006 Miss. LEXIS 90 (Miss. 2006), cert. denied, 549 U.S. 1119, 127 S. Ct. 931, 166 L. Ed. 2d 716, 2007 U.S. LEXIS 153 (U.S. 2007).

Where defendant gave false names to police upon being detained, it was not error to allow impeachment of defendant at trial with statements he made to police prior to being given his Miranda warnings. Flora v. State, 925 So. 2d 797, 2006 Miss. LEXIS 49 (Miss.), cert. denied, 549 U.S. 912, 127 S. Ct. 253, 166 L. Ed. 2d 197, 2006 U.S. LEXIS 6127 (U.S. 2006).

Denial of the inmate’s petition for post-conviction relief was proper where he was not denied the effective assistance of counsel because the record reflected that he was represented by one of two attorneys during all parts of the plea and sentencing hearing. Nothing occurred following the departure of one attorney that would have been uniquely within his knowledge so as to make that representation inadequate. McBride v. State, 914 So. 2d 260, 2005 Miss. App. LEXIS 524 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 720 (Miss. 2005).

As to his conviction for murder, defendant did not demonstrate that the outcome of his trial would have been different if his counsel had objected to the district attorney’s leading questions to deputies and the district attorney’s eliciting of prior bad acts testimony from the victim’s family members and a neighbor. He merely asserted that had counsel been as diligent with objections on said matters, he would have received a fair trial, and that statement did not satisfy the prejudice prong of Strickland; defendant’s account of the events that led to the victim’s death was not corroborated by any of the eyewitnesses, the physical evidence refuted his account that the victim was shot accidentally during a close struggle, and because he was hopelessly guilty, he was not entitled to a new trial on grounds counsel was ineffective. Jones v. State, 911 So. 2d 556, 2005 Miss. App. LEXIS 231 (Miss. Ct. App.), cert. denied, 920 So. 2d 1008, 2005 Miss. LEXIS 599 (Miss. 2005).

There was no physical evidence linking defendant to the burglary but the jury was provided with physical evidence connecting his accomplice to the crime. Then, the jury was told that defendant was able to identify his accomplice close to the crime scene when said identification had already been suppressed due to the violation of defendant’s Fifth and Sixth Amendment rights at the time of his arrest (Miranda violation); thus, the identification testimony by the officer was unquestionably prejudicial, the prosecutor’s closing argument further compounded the problem by linking the physical evidence connecting the accomplice to the crime to defendant, and the trial court committed reversible error in denying defendant’s motions for a mistrial and for a new trial. Carpenter v. State, 910 So. 2d 528, 2005 Miss. LEXIS 110 (Miss. 2005).

Although a few of the questions asked could be considered leading questions, Miss. R. Evid. 611(c), because of the age of the witnesses and the limited manner in which the questions were used, it was doubtful that the trial judge would have disallowed the questions; therefore, defendant would have benefitted little by an objection from counsel. Thus, defendant’s ineffective assistance of counsel claim was denied. Barrett v. State, 886 So. 2d 22, 2004 Miss. App. LEXIS 484 (Miss. Ct. App.), cert. denied, 887 So. 2d 183, 2004 Miss. LEXIS 1371 (Miss. 2004).

There is a clear line of cases authorizing a trial court in the prosecution of a sexual offense to permit evidence of past sexual crimes of the accused; thus, it was not error to admit evidence of defendant’s past sexual offenses. Therefore, there could be no claim of ineffective assistance of counsel premised on the failure of trial counsel to object. Barrett v. State, 886 So. 2d 22, 2004 Miss. App. LEXIS 484 (Miss. Ct. App.), cert. denied, 887 So. 2d 183, 2004 Miss. LEXIS 1371 (Miss. 2004).

Inmate’s counsel was not ineffective simply because he had not had a lot of death penalty cases and was involved in three death penalty cases at the same time as the inmate failed to show any errors that resulted from either issue that prejudiced him. Bell v. State, 879 So. 2d 423, 2004 Miss. LEXIS 543 (Miss. 2004), cert. denied, 543 U.S. 1155, 125 S. Ct. 1301, 161 L. Ed. 2d 122, 2005 U.S. LEXIS 1594 (U.S. 2005).

Denial of post-conviction relief was affirmed because the inmate failed to demonstrate that his counsel’s performance was deficient, and considering the totality of the circumstances, the performance of the inmate’s counsel was neither deficient nor prejudicial. In his plea petition, the inmate affirmed that he was satisfied with the advice of his counsel, the inmate’s plea petition clearly stated that the sentencing range for the sale or transfer of cocaine was zero to 30-years, with 60-years for enhanced punishment for a habitual offender, and the inmate made no specific allegations of action or inaction on the part of his counsel that resulted in prejudice to his defense. Falconer v. State, 873 So. 2d 163, 2004 Miss. App. LEXIS 417 (Miss. Ct. App. 2004).

Defendant was not deprived of his constitutional right to effective representation as defendant failed to show that his attorney’s representation was defective and that the defective performance deprived him of a fair trial. Mayo v. State, 886 So. 2d 734, 2004 Miss. App. LEXIS 430 (Miss. Ct. App.), cert. denied, 887 So. 2d 183, 2004 Miss. LEXIS 1383 (Miss. 2004).

In a robbery and assault case, defendant failed to demonstrate that the outcome of his trial would have been different if counsel had objected to the State’s closing argument tactic, regarding comment on defendant’s failure to testify, as the contention concerning the prosecutor’s summation was without merit and there was compelling eyewitness testimony implicating defendant; therefore, defendant’s ineffective assistance of counsel claim failed. Woods v. State, 883 So. 2d 583, 2004 Miss. App. LEXIS 371 (Miss. Ct. App. 2004).

Denial of post-conviction relief was proper, because counsel was not ineffective, as petitioner told the judge that his lawyer had explained all the law related to the aggravated assault offense and any possible defenses; petitioner affirmed that the decision to enter a guilty plea was his; and the affidavits offered by petitioner and his mother, which asserted that the attorney would not permit the mother’s joining the discussion between attorney and client, did not prove constitutional deficiency. Tenner v. State, 868 So. 2d 1067, 2004 Miss. App. LEXIS 221 (Miss. Ct. App. 2004).

Defendant’s aggravated assault conviction was upheld because he was not denied effective assistance of counsel by counsel’s failure to file a motion to dismiss based on speedy trial grounds, because his right to a speedy trial was not violated; therefore, counsel had no basis for filing the motion. Jackson v. State, 864 So. 2d 1047, 2004 Miss. App. LEXIS 66 (Miss. Ct. App. 2004).

In a case where the inmate was convicted of two counts of uttering a forgery, pursuant to Miss. Code Ann, §99-19-155(b), the contents of the victim’s impact statement relating to alleged threats of harm to the victim and her family made 10 years before were improperly admitted at the sentencing hearing and a reasonably competent attorney would find it necessary in the vigorous defense of his client’s rights to make some effort to exclude or, at least, counteract such a damaging victim impact statement; thus, trial counsel’s failure to do so caused his standard of representation to fall below that required by Strickland and the trial court’s decision denying an evidentiary hearing on the inmate’s motion for post-conviction relief from his judgment of sentence was reversed. Swindle v. State, 881 So. 2d 281, 2003 Miss. App. LEXIS 1062 (Miss. Ct. App. 2003), rev'd, 881 So. 2d 174, 2004 Miss. LEXIS 713 (Miss. 2004).

Defendant produced no evidence to show his attorney’s representation was deficient, or why the substitution of counsel prejudiced him; the substitution of attorneys five days before trial did not result in a denial of effective assistance of counsel, and the jury instruction given was proper; had counsel objected, he would have placed defendant in jeopardy of receiving an enhanced sentence. Wolverton v. State, 859 So. 2d 1073, 2003 Miss. App. LEXIS 1073 (Miss. Ct. App. 2003).

Inmate did not receive ineffective assistance of counsel during the guilt phase of the trial or at sentencing because he did not show that counsel’s performance was deficient and he did not show prejudice due to any of the alleged errors in counsel’s performance; thus, defendant’s constitutional right to effective assistance of counsel was not violated. Crawford v. State, 867 So. 2d 196, 2003 Miss. LEXIS 755 (Miss. 2003), cert. denied, 543 U.S. 866, 125 S. Ct. 205, 160 L. Ed. 2d 110, 2004 U.S. LEXIS 6519 (U.S. 2004).

Petitioner’s Fifth and Sixth Amendment rights were not violated when doctors, outside the presence of counsel, performed a psychiatric evaluation to determine his ability to stand trial; the doctors advised the petitioner that anything he said could be used against him during the sentencing phase of trial, and they offered to allow the petitioner to call his attorneys. Wilcher v. State, 863 So. 2d 719, 2003 Miss. LEXIS 526 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

Petitioner failed to show that he was prejudiced in any fashion by his attorney’s decision not to assert a Batson challenge; the Sixth Amendment has never been held to require that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the populations. Wilcher v. State, 863 So. 2d 719, 2003 Miss. LEXIS 526 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

In a guilty plea of manslaughter and possession of a firearm by a convicted felon, the record lacked any evidence that defendant presented himself as anything but mentally competent and there was no evidence to indicate that defendant’s attorney was on notice of any psychiatric problem or that defendant’s mind was or could be impaired; thus, there was no basis for defendant’s attorney to request a mental evaluation of defendant, he was not incompetent for failing to request a mental evaluation of defendant, and defendant’s motion for post-conviction relief was properly denied. Richardson v. State, 856 So. 2d 758, 2003 Miss. App. LEXIS 946 (Miss. Ct. App. 2003).

The strategy where a defendant tries to introduce evidence, fails, and then testifies in accordance with the trial court’s evidentiary rulings, is neither perjury nor ineffective assistance of counsel. Russell v. State, 849 So. 2d 95, 2003 Miss. LEXIS 297 (Miss. 2003).

Inmate’s petition for post-conviction relief on grounds that his counsel was ineffective for failing to inform him of his right to a speedy trial was denied, as the record showed he had been advised of his right to a speedy trial, and by his guilty plea had waived his constitutional and statutory rights to a speedy trial. Turner v. State, 864 So. 2d 288, 2003 Miss. App. LEXIS 679 (Miss. Ct. App. 2003), cert. denied, 864 So. 2d 282, 2004 Miss. LEXIS 35 (Miss. 2004).

Although the circuit court found that the justice court judge denied petitioner the constitutional right to counsel under Miss. Const. Art. 3, § 26 and the U.S. Const. Amend. VI, petitioner clearly had notice of the pending trial, petitioner and petitioner’s attorney were aware that the motion for continuance, which the trial court did not err in denying, had been denied; thus, the justice court judge did not err in proceeding to trial in petitioner’s absence pursuant to Miss. Code Ann. §99-17-9 and petitioner was not denied the constitutional right to counsel. In re Chisolm, 837 So. 2d 183, 2003 Miss. LEXIS 42 (Miss. 2003).

Section 47-5-138 of the Mississippi Code is not rendered unconstitutional by the fact that it contains no provision granting inmates a right to counsel in appealing a revocation of good time credits under the statute as there is no right of counsel for appeals from inmate lawsuits which have been dismissed as frivolous. Tubwell v. Anderson, 776 So. 2d 654, 2000 Miss. LEXIS 189 (Miss. 2000).

The prosecution’s cross-examination and closing argument references to the defendant’s exercise of his constitutional right to counsel did not rise to such a level as to constitute plain error and, therefore, the defendant was procedurally barred from raising the issue on appeal. Riddley v. State, 1999 Miss. App. LEXIS 541 (Miss. Ct. App. Aug. 24, 1999), aff'd, 777 So. 2d 31, 2000 Miss. LEXIS 167 (Miss. 2000).

The appellant was denied her right to counsel where the judge proceeded with a contempt hearing without informing her of her right to seek the advice of an attorney and the ramifications if she did not seek one. Terry v. State, 718 So. 2d 1097, 1998 Miss. LEXIS 369 (Miss. 1998).

Strickland standard to determine ineffective assistance of counsel claims applies to appellate counsel as well as trial counsel. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

There was no procedural bar to defendant raising for first time on appeal allegation that his right to counsel was denied. Dunn v. State, 693 So. 2d 1333, 1997 Miss. LEXIS 233 (Miss. 1997).

The Sixth Amendment does give a criminal defendant a right to choose his or her counsel, but that right is not absolute. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

State constitution’s right to counsel embraces all rights guaranteed to criminally accused defendant by the Sixth Amendment. Triplett v. State, 666 So. 2d 1356, 1995 Miss. LEXIS 597 (Miss. 1995).

Representation by a legal intern, acting under authority of §73-3-207, does not constitute the actual assistance of counsel guaranteed by the Constitution. Benbow v. State, 614 So. 2d 398, 1993 Miss. LEXIS 57 (Miss. 1993).

A defendant’s right to have counsel present during interrogation was respected and his confession was admissible, where the defendant was given the opportunity to confer with his attorney who advised him to confess, even though the defendant only conferred with his attorney by telephone; there is no reason on principle why telephonic access to counsel is legally less significant than “eyeball-to-eyeball” access. Riddle v. State, 580 So. 2d 1195, 1991 Miss. LEXIS 301 (Miss. 1991).

It was basically unfair for the trial court in a prosecution for murder to force defendant to offer his testimony and that of his witnesses to the jury after a fatiguing day in court and at a time when both counsel and jury were exhausted; moreover, due process of law necessitated a forum for defendant to present his case within reasonable hours and under reasonable circumstances. Parker v. State, 454 So. 2d 910, 1984 Miss. LEXIS 1806 (Miss. 1984).

Where an accused was represented by retained counsel at his trial, there was no obligation on the part of the trial judge to inform the accused after conviction that he had the right to appeal and to have court-appointed counsel and free transcripts if he was indigent. Bennett v. State, 293 So. 2d 1, 1974 Miss. LEXIS 1770 (Miss. 1974), overruled, Triplett v. State, 579 So. 2d 555, 1991 Miss. LEXIS 251 (Miss. 1991).

The Sixth Amendment to the Federal Constitution provides that accused in a criminal prosecution shall have the assistance of counsel for his defense, and the Sixth Amendment is applied to state prosecutions through the Fourteenth Amendment. Watson v. State, 196 So. 2d 893, 1967 Miss. LEXIS 1502 (Miss. 1967).

An indigent defendant charged with a felony is entitled to be represented by counsel irrespective of whether he pleads guilty or is tried on a not guilty plea. Scott v. State, 190 So. 2d 875, 1966 Miss. LEXIS 1412 (Miss. 1966).

88. – Questioning or comments about exercise of right to counsel, assistance of counsel.

Cross-examination of the defendant and comments during closing argument about the fact that the first person called by the defendant in a murder prosecution was his attorney did not constitute plain error; the prosecution’s remarks on the defendant’s right to counsel in no way impugned his assertion of self-defense and, if anything, they were merely an attack on his assertions that he fully cooperated with police. Riddley v. State, 1999 Miss. App. LEXIS 237 (Miss. Ct. App. Apr. 20, 1999).

89. – Pro se representation, assistance of counsel.

Because the record was insufficient to address a Strickland claim, the supreme court denied relief, preserving defendant’s right to raise the issue through a post-conviction-relief petition; although defendant alleged that counsel filed subpoenas with an incorrect appearance date, the record did not contain any filed, returned copies of those subpoenas, and it was not apparent why defendant failed to seek a continuance. Lofton v. State, 248 So.3d 798, 2018 Miss. LEXIS 183 (Miss. 2018).

Trial court did not err in allowing defendant to proceed pro se on a kidnapping charge, and defendant could not allege ineffective assistance of counsel; record contained nothing to suggest that the trial court should have questioned defendant’s claims to have a college degree and to have taken correspondence courses in law from Harvard while defendant was in prison. Brooks v. State, 835 So. 2d 958, 2003 Miss. App. LEXIS 222 (Miss. Ct. App. 2003).

The trial judge properly allowed the defendant to represent himself while ordering his court-appointed counsel to remain in the courtroom as an advisor where, although the defendant never waived his right to counsel, it was clear that he did not want to proceed with his court-appointed counsel and wanted the trial court to appoint another lawyer to represent him, which would have led to an extensive delay in his trial. Henley v. Mississippi, 729 So. 2d 232, 1998 Miss. LEXIS 588 (Miss. 1998).

Trial judge was fully justified in taking defendant’s silence as admissions of his court-appointed attorneys’ statements that defendant refused to have them represent him and wished to represent himself; attorneys’ statements were made in defendant’s presence, defendant had capacity to object or refute statements by attorneys but did not say anything, and defendant refused to answer when judge asked him if he wanted to represent himself. Dunn v. State, 693 So. 2d 1333, 1997 Miss. LEXIS 233 (Miss. 1997).

“Hybrid representation” encompasses both participation of defendant in conduct of his trial when he has not effectively waived assistance of attorney to defend him and participation by attorney in conduct of trial when defendant is defending pro se. Dunn v. State, 693 So. 2d 1333, 1997 Miss. LEXIS 233 (Miss. 1997).

Role of attorney in situation where defendant has not effectively waived assistance of counsel is that of “co-counsel”, and role of attorney in situation where defendant has effectively waived counsel and is proceeding pro se is that of “standby” or “advisory” counsel; former tends to involve more active role in representation of defendant than latter. Dunn v. State, 693 So. 2d 1333, 1997 Miss. LEXIS 233 (Miss. 1997).

Following factors are considered in deciding whether trial judge granted hybrid representation: defendant’s accessibility to counsel; stage of trial at which he requests participatory role in his defense; magnitude of role he desires to assume; whether trial court encourages immediate and constant accessibility of counsel; and nature and extent of assistance of counsel which has been provided up to point of request, including both substantive and procedural aid. Dunn v. State, 693 So. 2d 1333, 1997 Miss. LEXIS 233 (Miss. 1997).

Defendant who received hybrid representation during trial was not deprived of his right to counsel; court-appointed attorneys were at defendant’s counsel table during entire trial, attorneys’ efforts were met with defendant’s uncooperative attitude and disposition, and attorneys represented defendant vigorously when it became apparent that defendant was content to sit by and do nothing. Dunn v. State, 693 So. 2d 1333, 1997 Miss. LEXIS 233 (Miss. 1997).

In determining whether a trial court granted “self-representation” or “hybrid representation” to a defendant, and thus whether a waiver of the right to counsel was necessary, the factors to be considered include: (1) the defendant’s accessibility to counsel; (2) whether and how often the defendant consulted with counsel up to the point of the request; (3) the stage of trial at which the defendant requested a participatory role; (4) the magnitude of the role the defendant desired to assume; (5) whether the trial court encouraged immediate and constant accessibility of counsel; and (6) the nature and extent of assistance of counsel which had been provided up to the point of the request, including both substantive and procedural aid. Metcalf v. State, 629 So. 2d 558, 1993 Miss. LEXIS 563 (Miss. 1993).

A criminal defense counsel did not render constitutionally ineffective assistance of counsel where the defendant requested during trial that the defense counsel be dismissed but the court denied the request, and thereafter the defendant acted pro se with the attorney present and ready and willing to assist the defendant in the case, and therefore the attorney, as stand-by counsel, was without authority, discretion or control. Estelle v. State, 558 So. 2d 843, 1990 Miss. LEXIS 153 (Miss. 1990).

The trial court did not err in granting the defendant’s motion to act as co-counsel where, at trial, appointed counsel and another attorney were present at the counsel table, made suggestions and offers of advice and assistance, drew instructions, and participated to some extent in the trial of the case. Richardson v. State, 402 So. 2d 848, 1981 Miss. LEXIS 2148 (Miss. 1981).

When defendant waived his right to counsel and elected to proceed pro se but where the trial court appointed counsel to assist him during trial, the hybrid representation that defendant received during trial provided him with effective assistance because it was clear from the record that the two attorneys were not casual observers where they conducted voir dire, handled jury challenges, made numerous objections throughout trial, conducted cross-examination of witnesses, conducted the direct examination of witnesses, made a motion for a directed verdict, presented the closing argument in the guilty phase, represented defendant at sentencing, made the opening statement on behalf of defendant in the sentencing phase, conducted the examination of witnesses during the sentencing phase, and filed a motion for a new trial. Goff v. State, 14 So.3d 625, 2009 Miss. LEXIS 273 (Miss. 2009), cert. denied, 559 U.S. 944, 130 S. Ct. 1513, 176 L. Ed. 2d 122, 2010 U.S. LEXIS 1251 (U.S. 2010).

90. – Plea proceedings as ineffective assistance of counsel, assistance of counsel.

Defendant’s counsel was not ineffective during plea proceedings where the trial judge and defense counsel went to great lengths to lead defendant through the plea process and made sure that defendant’s guilty plea to the sale of cocaine was intelligent and voluntary; defendant testified under oath, during the guilty plea, that defendant was satisfied with counsel’s representation. Coleman v. State, 979 So. 2d 731, 2008 Miss. App. LEXIS 196 (Miss. Ct. App. 2008).

Since an inmate was unable to show that he was prejudiced by an attorney’s failure to subpoena a witness in a plea negotiation, a claim of ineffective assistance of counsel failed in a petition seeking post-conviction relief. Hull v. State, 933 So. 2d 315, 2006 Miss. App. LEXIS 499 (Miss. Ct. App. 2006).

Inmate’s petition for post-conviction relief was denied under Miss. Code Ann. §99-39-11 because a transcript of a plea hearing failed to establish that counsel induced him into pleading guilty; there was a strong presumption of the validity of the statements made by the inmate during the actual plea hearing, and as such, a claim of ineffective assistance of counsel failed. Hull v. State, 933 So. 2d 315, 2006 Miss. App. LEXIS 499 (Miss. Ct. App. 2006).

Appellate court found no merit to appellant’s claims that his attorney deceived him into believing that he would receive a lighter sentence if he pled guilty, and that his attorney instructed him to lie to the trial court by stating that he had not been promised anything in return for his guilty plea where appellant had told the trial court that his plea was voluntary and that he was satisfied with the assistance of his attorney. Jones v. State, 962 So. 2d 571, 2006 Miss. App. LEXIS 383 (Miss. Ct. App. 2006).

Colloquy between defendant and the court showed the lack of merit in his claim that counsel was ineffective. During his plea colloquy, defendant stated that he was satisfied with the advice of his counsel and stated that his counsel had fully and completely explained the charges that he was facing and any defenses that he would have; nothing in the record indicated that defendant’s counsel was deficient in any way, and defendant stated specifically that no one, including his attorney, had induced or coerced him into making his plea. Strohm v. State, 923 So. 2d 1055, 2006 Miss. App. LEXIS 170 (Miss. Ct. App. 2006).

Defendant’s motion for post-conviction relief, filed after he pled guilty to two counts of murder, was properly dismissed without a hearing where counsel’s advice that a trial could result in a guilty verdict and the death penalty did not support an argument of ineffectiveness; counsel had a duty to inform defendant of the possible outcomes of conviction. Booker v. State, 954 So. 2d 448, 2006 Miss. App. LEXIS 864 (Miss. Ct. App. 2006).

Trial court did not err under Miss. Code Ann. §99-39-11(2) in denying petitioner an evidentiary hearing on his post-conviction petition because there was no evidence in the record other than his bald assertions that counsel performed inadequately; defendant’s testimony at his sentencing hearing did not indicate any confusion as to the result of his guilty plea, and it also did not indicate any dissatisfaction with counsel. Knight v. State, 2006 Miss. App. LEXIS 808 (Miss. Ct. App. Oct. 31, 2006).

Post-conviction relief was properly denied in a case where defendant pled guilty to the sale of cocaine because there was nothing in the record to overcome the presumption that defendant received effective assistance of counsel, as defendant acknowledged under oath in his petition to enter a plea of guilty that his lawyer did all that anyone could do to counsel and assist him, and that he was satisfied with the advice and help that he received. Morris v. State, 922 So. 2d 860, 2006 Miss. App. LEXIS 146 (Miss. Ct. App. 2006).

Trial court properly denied defendant’s motion for post-conviction relief after he pled guilty to armed robbery because he stated in his plea colloquy that he had not been coerced into pleading guilty and that he was satisfied with the advice of his attorney. Counsel’s advice that defendant plead guilty was clearly within the range of competence demanded of attorneys in criminal cases. Williams v. State, 922 So. 2d 853, 2006 Miss. App. LEXIS 157 (Miss. Ct. App. 2006).

Defendant’s unlawful killing of the victim clearly met all of the elements outlined in Miss. Code Ann. §97-3-47, and the jury would have been entitled to find him guilty of manslaughter on the record before the appellate court; there was no error in defendant’s representation at the plea proceeding, much less any error so prejudicial to rise to the level required by Strickland and Bevill; thus, defendant failed to prove an exception to the procedural bar for post-conviction relief. Smith v. State, 922 So. 2d 43, 2006 Miss. App. LEXIS 126 (Miss. Ct. App. 2006).

Defendant did not receive ineffective assistance of counsel where, when questioned by the trial judge as to whether he understood that he was entering into an Alford appeal, and if he understood its consequences, defendant answered affirmatively; defendant also answered affirmatively when asked if defendant understood the minimum and maximum sentences for the crimes to which he was pleading; it was clear that defendant was not entitled to relief and the trial court was correct in refusing to grant an evidentiary hearing. Cole v. State, 918 So. 2d 890, 2006 Miss. App. LEXIS 54 (Miss. Ct. App.), cert. dismissed, 927 So. 2d 750, 2006 Miss. LEXIS 213 (Miss. 2006).

Inmate’s request for post-conviction relief was denied because there was no showing of ineffective assistance of counsel regarding the legality of an extradition and an indictment, as well as a sentence imposed as a habitual offender, since these issues could not have been challenged after the entry of guilty plea. Kelley v. State, 913 So. 2d 379, 2005 Miss. App. LEXIS 277 (Miss. Ct. App. 2005).

Inmate’s request for post-conviction relief was denied because there was no showing of ineffective assistance of counsel with regards to plea proceedings where the issues were not pled with specificity. Kelley v. State, 913 So. 2d 379, 2005 Miss. App. LEXIS 277 (Miss. Ct. App. 2005).

Inmate’s request for post-conviction relief was denied because there was no showing of ineffective assistance of counsel on the issue of failing to interview a victim in a statutory rape case since counsel stated during the plea hearing that discovery had been conducted. Kelley v. State, 913 So. 2d 379, 2005 Miss. App. LEXIS 277 (Miss. Ct. App. 2005).

Inmate’s request for post-conviction relief was denied because there was no showing of ineffective assistance of counsel during a plea proceeding on the issue of failing to pursue an insanity defense since the issue was abandoned by the inmate, and the inmate stated that he had no mental impairment. Kelley v. State, 913 So. 2d 379, 2005 Miss. App. LEXIS 277 (Miss. Ct. App. 2005).

Inmate’s request for post-conviction relief was denied because there was no showing of ineffective assistance of counsel in a plea proceeding since there was no evidence that a conflict of interest existed based on a sheriff’s son working at an attorney’s office or at a paternity testing center. Kelley v. State, 913 So. 2d 379, 2005 Miss. App. LEXIS 277 (Miss. Ct. App. 2005).

91. – Administrative proceedings, assistance of counsel.

Defendant’s claim that his counsel was ineffective for failing to reassert a speedy trial violation when defendant’s trial was rescheduled from November 2, 2002, to May 6, 2003, was rejected as the record contained no information about the delay. Clayton v. State, 946 So. 2d 796, 2006 Miss. App. LEXIS 482 (Miss. Ct. App. 2006), cert. dismissed, 947 So. 2d 960, 2007 Miss. LEXIS 64 (Miss. 2007).

A pharmacist, whose license was revoked by the Board of Pharmacy, was not deprived of his right to retain counsel, in spite of his argument that he was denied procedural due process when the Board’s agent implied that the charges against him were not serious in nature and thereby coerced him into not retaining counsel, where the agent merely stated that the decision to retain an attorney for the hearing was the pharmacist’s choice and told him “You may just want to go down and talk to them, though,” the pharmacist received notice that clearly highlighted his right to retain counsel, and the notice clearly stated that the charges could result in suspension or revocation of his pharmacy license. Duckworth v. Mississippi State Bd. of Pharmacy, 583 So. 2d 200, 1991 Miss. LEXIS 424 (Miss. 1991).

92. –Probation or parole revocation proceedings, assistance of counsel.

Post-conviction relief was properly denied, because petitioner was not improperly denied a right to counsel at his probation revocation hearing, as the record did not reflect that petitioner obtained or requested counsel during the revocation hearing, and the trial court was under no duty to appoint counsel for petitioner during the revocation proceeding. Newsom v. State, 904 So. 2d 1095, 2004 Miss. App. LEXIS 396 (Miss. Ct. App. 2004).

Probationers and parolees do not “have, per se, a right to counsel at revocation hearings.” Whether probationers have a right to counsel must be answered “on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system.” Riely v. State, 562 So. 2d 1206, 1990 Miss. LEXIS 240 (Miss. 1990).

A probationer was not deprived of the right to counsel at his probation revocation hearings in violation of his constitutional rights where the circuit court did not actually “disallow” the probationer to have legal representation but merely refused to continue the hearing in response to his belated request for more time to obtain counsel, the case was not “complex or otherwise difficult to develop,” and counsel was provided upon the probationer’s request prior to the fourth hearing before the circuit court and prior to his appeal to the Supreme Court. Riely v. State, 562 So. 2d 1206, 1990 Miss. LEXIS 240 (Miss. 1990).

93. –Joint representation, assistance of counsel.

Even though the trial court appoints counsel in an advisory capacity, such counsel is still obligated to provide the defendant with adequate assistance in accordance with the defendant’s requests. Hill v. State, 134 So.3d 721, 2014 Miss. LEXIS 88 (Miss. 2014).

Motion of petitioner under death sentence to vacate or set aside judgment and sentence on the ground of ineffective assistance of trial counsel due to fact that same counsel represented petitioner and 2 others would be denied in absence of showing of any instance where any of the 3 were in any adversarial or conflicting position during or as a result of the joint representation during either the guilt or sentencing phase of the trial. Stringer v. State, 485 So. 2d 274, 1986 Miss. LEXIS 2335 (Miss.), cert. denied, 479 U.S. 922, 107 S. Ct. 327, 93 L. Ed. 2d 300, 1986 U.S. LEXIS 4431 (U.S. 1986).

Joint representation of co-defendants is not per se violation of right to effective assistance of trial counsel. Stringer v. State, 485 So. 2d 274, 1986 Miss. LEXIS 2335 (Miss.), cert. denied, 479 U.S. 922, 107 S. Ct. 327, 93 L. Ed. 2d 300, 1986 U.S. LEXIS 4431 (U.S. 1986).

94. – Accrual of right, assistance of counsel.

In an action challenging the plaintiff’s incarceration for nine months in a Madison County jail as a result of a Hinds County detainer, without hearing or court appearance, the plaintiff sufficiently established a violation of his Sixth Amendment rights to support the denial of qualified immunity to the defendants with regard to such claim since the bench warrant underlying the detainer was based on the plaintiff’s alleged failure to appear for sentencing on two burglary charges, the government was committed to a prosecution of these two charges, and the Sixth Amendment rights to be informed of the charges and to be represented by counsel had attached. Jones v. City of Jackson, 203 F.3d 875, 2000 U.S. App. LEXIS 1992 (5th Cir. Miss. 2000).

In the absence of any affirmative evidence that the defendant accepted the representation of an attorney at the time of his initial appearance, there was no basis to exclude the defendant’s subsequent apparently voluntary statement based on the violation of any right accruing to him under the Sixth Amendment. Beckum v. State, 1999 Miss. App. LEXIS 91 (Miss. Ct. App.), reaff'd, 1999 Miss. App. LEXIS 722 (Miss. Ct. App. Mar. 9, 1999).

There was no violation of the defendant’s Sixth Amendment right to counsel as there was no evidence suggesting that he asserted his right to counsel during his interrogation by the police. McGilberry v. State, 741 So. 2d 894, 1999 Miss. LEXIS 196 (Miss. 1999), cert. denied, 529 U.S. 1006, 120 S. Ct. 1273, 146 L. Ed. 2d 222, 2000 U.S. LEXIS 1788 (U.S. 2000).

A statement made by the defendant to a police officer should not have been admitted into evidence where (1) at his initial appearance, the defendant marked “yes” in response to the question “Do you want to talk to a lawyer before or during the time you are questioned” on his initial appearance form, (2) the statement was made two days later in an interrogation initiated by the police officer, and (3) this improperly obtained confession was the defendant’s sole admission that he actually shot the victim. Porter v. State, 732 So. 2d 899, 1999 Miss. LEXIS 1 (Miss. 1999).

The introduction into evidence of an incriminating statement made by the defendant to his cellmate did not violate his right to counsel since such right had not accrued at the time that he made the statement where the statement was made several months before adverse criminal proceedings were commenced against the defendant. United States v. Walker, 148 F.3d 518, 1998 U.S. App. LEXIS 17107 (5th Cir. Miss. 1998).

Delay of approximately 24 hours between time of arrest and initial appearance before magistrate did not warrant suppression of confession given by defendant prior to initial appearance; defendant was arrested by warrant while he was already in jail, defendant was informed of his right to remain silent, his right to attorney, and his right to stop answering questions at any time and to ask for attorney, and defendant did not ask for appointment of counsel on charge for which he was arrested. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

Right to counsel, both federal and state varieties, attaches at point in time when initial appearance before magistrate ought to have been held. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

Defendant’s Sixth Amendment right to counsel with respect to murder charge attached when he was arrested by warrant while already in jail for another offense. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

The rule in Edwards v. Arizona (1981) 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, reh. den. (1981) 452 U.S. 973, 69 L. Ed. 2d 984, 101 S. Ct. 3128 or Arizona v. Roberson (1988) 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093 concerning the interrogation of an accused on an unrelated charge after the Fifth Amendment right to counsel has been asserted, does not apply when the accused does not remain in continuous custody; a non-contrived, non-pretextual break in custody where the accused has reasonable opportunity to contact his or her attorney dissolves an Edwards or Roberson claim. Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

Recording of conversations involving defendant and undercover agent, which were prior to her being indicted or placed under arrest, did not violate constitutional right to counsel, because such right becomes applicable only when government’s role shifts from investigation to accusation, and at time of conversation defendant was neither under indictment, nor arrest, nor had arrest warrant been issued. Williamson v. State, 512 So. 2d 868, 1987 Miss. LEXIS 2683 (Miss. 1987), Walton v. State, 678 So. 2d 645, 1996 Miss. LEXIS 192 (Miss. 1996).

A statement made at the jail by defendant in response to a question by the deputy sheriff as to whether she had killed the victim violated her Sixth Amendment right to counsel, which had attached, since the question was without benefit of counsel. Cannaday v. State, 455 So. 2d 713, 1984 Miss. LEXIS 1753 (Miss. 1984), cert. denied, 469 U.S. 1221, 105 S. Ct. 1209, 84 L. Ed. 2d 351, 1985 U.S. LEXIS 1031 (U.S. 1985), cert. denied, 469 U.S. 1229, 105 S. Ct. 1229, 84 L. Ed. 2d 366, 1985 U.S. LEXIS 1115 (U.S. 1985).

Representation by counsel is not required at a preindictment investigatory lineup. Bankston v. State, 391 So. 2d 1005, 1980 Miss. LEXIS 2177 (Miss. 1980).

To require that in all events a person arrested for a misdemeanor involving drunkenness must be advised of his right to counsel immediately upon being detained is not required by the Sixth Amendment to the Constitution of the United States. Capler v. Greenville, 207 So. 2d 339, 1968 Miss. LEXIS 1605 (Miss.), cert. denied, 392 U.S. 941, 88 S. Ct. 2323, 20 L. Ed. 2d 1403, 1968 U.S. LEXIS 1302 (U.S. 1968).

95. –Invocation of right, assistance of counsel.

Record supported the finding that defendant was advised of his Miranda rights, knowingly and intelligently waived his rights, and freely and voluntarily confessed to setting fire to the house, and his statement that he needed “help” was insufficient to invoke his right to counsel. Franklin v. State, 170 So.3d 481, 2015 Miss. LEXIS 364 (Miss. 2015).

Confronting a suspect with the incriminating evidence compiled against him after he has invoked his right to counsel, and without any initiation on the part of the suspect, is precisely the kind of psychological ploy that definition of interrogation in Innis was designed to prohibit. Pannell v. State, 7 So.3d 277, 2008 Miss. App. LEXIS 550 (Miss. Ct. App. 2008), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 154 (Miss. 2009).

Defendant’s right to counsel was violated by police-initiated interrogation after he asserted his right to counsel because an officer showed defendant the evidence file in an attempt to have him reconsider his request for counsel; a tactic that proved successful as defendant was not prompted to speak until he reviewed the evidence. Because the actions of the officer constituted police-initiated custodial interrogation, a valid waiver could not be established simply by showing that defendant responded to the interrogation. Pannell v. State, 7 So.3d 277, 2008 Miss. App. LEXIS 550 (Miss. Ct. App. 2008), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 154 (Miss. 2009).

Defendant’s capital murder convictions were proper where his Fifth, Sixth, and Fourteenth Amendment rights to counsel and to remain silent were not violated. He made no objection at trial; there was no testimony concerning defendant’s use of counsel or his right to remain silent; and the State’s questioning was designed solely to elicit a chronological version of the events involved in the investigation of the murders not the fact that the defendant requested an attorney during the State’s investigation. Rubenstein v. State, 2005 Miss. LEXIS 789 (Miss. Dec. 1, 2005), op. withdrawn, 2006 Miss. LEXIS 424 (Miss. Aug. 10, 2006), sub. op., 941 So. 2d 735, 2006 Miss. LEXIS 411 (Miss. 2006).

A murder defendant’s initial refusal to sign a waiver of rights form did not constitute a demand for an attorney where he was not questioned again until more than 32 hours had lapsed when he was presented with incriminating physical evidence connecting him to the crime, and he was again advised of his rights before further questioning; thus, admission of his confession into evidence did not violate his constitutional right against compulsory self-incrimination or right to an attorney. Thorson v. State, 653 So. 2d 876 (Miss. 1994), reh’g denied (Miss. Apr. 20, 1995).

An accused invoked her Fifth Amendment right to counsel at the time of her arrest when she asked for an attorney and stated that she was not going to sign any papers or answer any questions without having a lawyer present; the accused invoked her Sixth Amendment right to counsel and the state counterpart right secured by Article 3, § 26 of the Mississippi Constitution at her initial appearance when she indicated a desire for representation and an interest in contacting her family to ascertain their progress in hiring a lawyer for her. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

A defendant’s question during interrogation–“Don’t you think I need a lawyer?”–constituted an ambiguous request for an attorney, requiring the officers to cease interrogation except for that intended to clarify the defendant’s request. The officers’ response to the defendant’s ambiguous request, which culminated in the defendant’s decision to waive his rights, did not exceed constitutional parameters where the officers responded by twice explaining the defendant’s option to exercise his Miranda rights or to relate “his side of the story.” Holland v. State, 587 So. 2d 848, 1991 Miss. LEXIS 648 (Miss. 1991).

A defendant’s Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel were not violated by the admission of his confession into evidence, even though the confession was obtained after the defendant initially refused to sign a waiver of rights form and had stated that he would not sign anything until he talked to his mental health counselor. The defendant’s refusal to sign the waiver of rights form was not a per se invocation of his Fifth Amendment rights. Additionally, the defendant’s request for a mental health counselor was not a per se invocation of his Fifth Amendment rights; a request for someone other than an attorney does not invoke a defendant’s Fifth Amendment rights, and a mental health counselor is not qualified to protect a defendant’s Fifth Amendment rights. Similarly, neither the defendant’s request to speak to his mental health counselor nor his temporary refusal to sign the waiver form constituted a request for counsel so as to invoke his Sixth Amendment right. Mohr v. State, 584 So. 2d 426, 1991 Miss. LEXIS 481 (Miss. 1991).

A trial court’s admission of a defendant’s confession into evidence violated the defendant’s Fifth and Fourth Amendment rights where the defendant had invoked her right to counsel and 2 officers subsequently told her that a codefendant had made a statement implicating her in their criminal activity, after which the defendant wrote a statement admitting to the crimes. The admission of the confession in violation of the defendant’s constitutional rights was not harmless error where the confession in question was the only confession available. Balfour v. State, 580 So. 2d 1203, 1991 Miss. LEXIS 302 (Miss. 1991).

When a suspect requests counsel while being informed of his or her rights, the police should complete the reading of the suspect’s rights, then ask the suspect to state clearly what he or she elects to do. If the suspect indicates that he or she wishes to remain silent, then the interrogation must cease. Berry v. State, 575 So. 2d 1, 1990 Miss. LEXIS 849 (Miss. 1990), cert. denied, 500 U.S. 928, 111 S. Ct. 2042, 114 L. Ed. 2d 126, 1991 U.S. LEXIS 2673 (U.S. 1991).

Admission of written statement into evidence violated defendant’s constitutional rights where, after Miranda rights were read, father of defendant informed police that attorney was desired and that no statement would be made until one was present. After this right had been invoked, officer continued questioning at which point defendant gave oral statement, which was reduced to writing following day. Prosecution could not show that defendant understood and waived his rights where officer stated that Miranda rights were read to him and defendant was asked if he understood it, to which he replied “yes”, but rights were not discussed with defendant. Impermissible questioning which occurred in police station after defendant had invoked right to counsel bears on admissibility of written statement which was obtained following morning. Reuben v. State, 517 So. 2d 1383, 1987 Miss. LEXIS 2935 (Miss. 1987).

If the right to counsel or the privilege against self-incrimination is waived at an initial trial which is later reversed, on appellate review, on retrial defendant can re-invoke rights previously waived. State v. Caldwell, 492 So. 2d 575, 1986 Miss. LEXIS 2531 (Miss. 1986).

96. – Necessity for assignment of counsel, assistance of counsel.

The lower court did not err in failing to appoint counsel at the defendant’s probation revocation hearing where the defendant was sentenced at the time of his guilty plea to a period of 10 years, although suspended, and the trial judge had at the plea hearing informed the defendant that a violation of the conditions of probation would result in revocation of his probation and execution of the 10-year sentence. Crowell v. State, 801 So. 2d 747, 2000 Miss. App. LEXIS 558 (Miss. Ct. App. 2000).

Absent valid waiver of his right to counsel, if uncounseled defendant is sentenced to prison, conviction itself is unconstitutional. Dunn v. State, 693 So. 2d 1333, 1997 Miss. LEXIS 233 (Miss. 1997).

Once Sixth Amendment right to counsel has attached and been asserted, state must honor that right by doing more than simply not preventing accused from obtaining the assistance of counsel; Sixth Amendment also imposes on state an affirmative obligation to respect and preserve accused’s choice to seek this assistance. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

It is not the duty of law enforcement officers and prosecutors, nor the function of the courts, to insist that a person accused of a crime actually confer with an attorney before talking about the crime nor is there any prescribed procedure or form to be followed in the waiver of the right to such assistance. Berry v. State, 575 So. 2d 1, 1990 Miss. LEXIS 849 (Miss. 1990), cert. denied, 500 U.S. 928, 111 S. Ct. 2042, 114 L. Ed. 2d 126, 1991 U.S. LEXIS 2673 (U.S. 1991).

Circuit Court did not deprive defendant of opportunity to secure his own counsel in pre-trial proceedings where court appointed counsel advised court he had conferred with defendant through interpreter and been informed defendant’s family would hire attorney; although arraignment on same date was premature and should have been deferred, no prejudice occurred because plea of not guilty was entered, and even if it was not settled on that date that court appointed counsel would remain defendant’s attorney, this arrangement did later become final. During 3 week lapse between time of defendant’s arraignment and beginning of trial, no further mention of another attorney was made; first mention of another attorney only came following verdict in guilt phase of trial. Faraga v. State, 514 So. 2d 295, 1987 Miss. LEXIS 2656 (Miss. 1987), cert. denied, 487 U.S. 1210, 108 S. Ct. 2858, 101 L. Ed. 2d 894, 1988 U.S. LEXIS 2778 (U.S. 1988).

The Sixth and Fourteenth Amendments require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the state has afforded him the right to assistance of appointed counsel in his defense, and thus, the constitutional rights of an indigent defendant (charged with an offense for which imprisonment, fine, or both, is authorized upon conviction) are not violated when the defendant, after being tried in state court without appointed counsel, is fined rather than imprisoned upon being convicted. Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383, 1979 U.S. LEXIS 3 (U.S. 1979).

Where a court desires to preserve its discretion to impose a jail sentence as a direct result of a conviction of an indigent misdemeanant under an alternative sentencing statute, the court must make a decision before the accused formally pleads and, in the absence of a valid waiver, appoint counsel to represent the indigent; If a court decides that only a fine will be imposed in the event of conviction, the court need not appoint counsel for the indigent, and the court’s decision as to this matter should be dictated into the record or otherwise preserved for appellate purposes; There will be no violation of the indigent’s sixth amendment right to counsel if such a fine is later converted into a jail sentence because of the defendant’s failure to pay the fine after reasonable measures designed to aid payment prove unsuccessful. Nelson v. Tullos, 323 So. 2d 539, 1975 Miss. LEXIS 1565 (Miss. 1975).

Failure to provide counsel for a defendant while a crime of rape was under investigation by the police and he was interrogated in connection with the offense was not a violation of his constitutional rights when no attempt was made by the prosecution to use in evidence any confession, admission, or statement of any kind extracted from the defendant after his arrest. Davis v. State, 204 So. 2d 270, 1967 Miss. LEXIS 1188 (Miss. 1967), rev'd, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676, 1969 U.S. LEXIS 1869 (U.S. 1969).

Where the record indicates beyond question that the defendant, charged with assault and battery, was indigent, that he desired an attorney to represent him, and that he did not consciously and intelligently waive such appointment it was reversible error to force him to trial on the charge without an attorney. Mississippi State Highway Com. v. Glenn, 178 So. 2d 677 (Miss. 1965).

In view of the mandatory decisions of the U.S. Supreme Court, counsel must be appointed to represent a defendant charged with a felony in the absence of an intelligent and competent waiver of counsel by him and it is incumbent upon the trial court to determine whether such a waiver has been made, and the determination, as well as the facts on which it is based, should appear in the record. Conn v. State, 251 Miss. 488, 170 So. 2d 20, 1964 Miss. LEXIS 366 (Miss. 1964).

97. – Questioning of defendant after request for assistance of counsel.

Although a voluntary statement made by defendant was in violation of the Fifth and Sixth Amendments because defendant had asked for an attorney, it was properly used for impeachment purposes during a murder trial; moreover, the failure to provide a limiting instruction on such was not error since defendant did not make such a request, and therefore a motion for a mistrial was properly denied. Sipp v. State, 936 So. 2d 326, 2006 Miss. LEXIS 336 (Miss. 2006).

A defendant’s statements should have been suppressed where he invoked his right to remain silent and to have an attorney present after he was taken into custody and Mirandized by Tennessee authorities, and he was subsequently Mirandized by Mississippi officers without his having initiated the conversation. Duplantis v. State, 644 So. 2d 1235, 1994 Miss. LEXIS 529 (Miss. 1994), cert. denied, 514 U.S. 1123, 115 S. Ct. 1990, 131 L. Ed. 2d 876, 1995 U.S. LEXIS 3453 (U.S. 1995).

Once an accused has asserted the Sixth Amendment right to counsel at arraignment or a similar proceeding, the police may not initiate interrogation; if the police initiate interrogation after the right has been asserted, any waiver by the defendant for that interrogation is invalid. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

A trial court erred in admitting a defendant’s confession evidence since the confession was tainted by the constitutional violation of the defendant’s Sixth Amendment right to counsel and rights secured by Article 3, § 26 of the Mississippi Constitution, where the defendant “waived her rights” and made the confession after a sheriff department investigator and deputy initiated contact with her within less than 4 hours after she invoked the right to counsel at her initial appearance; the confession was also tainted by violation of the defendant’s Fifth and Fourteenth Amendment rights since the defendant had also requested a lawyer and declined to waive any rights at the time of her arrest. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

Once an accused has requested an attorney, it is improper for either the same or another law enforcement officer to question the accused about his or her criminal conduct. If the accused indicates in any manner at any time prior to or during questioning that he or she wishes to remain silent or to have access to counsel, the officers must cease interrogation. When the accused asks for counsel, the officers may not resume interrogation until counsel has been provided, except where the accused voluntarily reinitiates the discussion of the charges. If the accused requests access to counsel, all officers of the prosecution force are bound thereby, including those who have no actual knowledge of the request. Kirkland v. State, 559 So. 2d 1046, 1990 Miss. LEXIS 200 (Miss. 1990).

A defendant’s confession should not have been admitted into evidence where the confession was obtained by law enforcement officers after the defendant made a request for an attorney to the justice court judge who was considering binding him over to await the action of the grand jury, and one of the officers heard the defendant’s request. Although the defendant may only have meant that he wanted a lawyer for court proceedings and did not want a lawyer to advise him before being questioned about the crime, the officers did not seek to make such a determination, but simply proceeded to question the defendant, knowing that he was a cocaine addict and to some extent, because of such addiction, judgment-impaired at the time. No intelligent, knowing waiver of the right to counsel, which the defendant had expressed to the justice court judge, could be found from an officer testifying that he simply orally gave the defendant the Miranda warning. Kirkland v. State, 559 So. 2d 1046, 1990 Miss. LEXIS 200 (Miss. 1990).

A police officer’s initiation of an interview with a murder suspect did not violate the suspect’s constitutional right to counsel, even though the suspect had invoked his right to counsel several days earlier during the course of an interview with FBI agents, he had been provided with counsel who had advised him not to speak to anyone, and he did not sign a waiver of rights form before speaking with the police officer, where the officer warned the suspect that he need not speak to him in the absence of counsel, and the suspect did not tell the officer that he wished to have a lawyer present before speaking to him. Minnick v. State, 551 So. 2d 77, 1988 Miss. LEXIS 612 (Miss. 1988), rev'd, 498 U.S. 146, 111 S. Ct. 486, 112 L. Ed. 2d 489, 1990 U.S. LEXIS 6118 (U.S. 1990), overruled, Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

A defendant’s verbal statement, which was given after the defendant asserted his right to counsel, should have been suppressed even though the defendant signed a statement waiving his constitutional rights, including the right to counsel “at this time,” where the defendant invoked his right to counsel after signing the statement, and counsel was not furnished. Burnside v. State, 544 So. 2d 1352, 1988 Miss. LEXIS 643 (Miss. 1988).

Notwithstanding defendant’s claim that his request to consult an attorney had been refused, there was no error in admitting his written statement into evidence where the defendant, as well as 2 police officers attending the interrogation when the statement was given, testified that it was freely and voluntarily given, and the officers testified that there was strict adherence to the Miranda warnings. Trunell v. State, 487 So. 2d 820, 1986 Miss. LEXIS 2444 (Miss. 1986).

98. –Questioning of defendant after counsel was hired or appointed without counsel present, assistance of counsel.

Defendant’s right to a speedy trial was not violated because although the total delay in the case was lengthy, the majority of the delay was justified by good cause or was attributable to defendant’s actions; the State’s efforts to retry defendant within two months after the reversal of his conviction were more than reasonable, and defendant, not the State requested a continuance to obtain a copy of the transcript from the first trial. Newell v. State, 175 So.3d 1260, 2015 Miss. LEXIS 505 (Miss. 2015).

Criminal defendant’s incriminating statement had to be suppressed as his right to counsel was violated when he was interrogated by a detective without his counsel present after the detective had informed defendant’s counsel that the detective would not be questioning defendant as State had not established that defendant had validly waived his right to counsel. Beckum v. State, 786 So. 2d 1060, 2001 Miss. LEXIS 155 (Miss. 2001).

The defendant was entitled to suppression of a statement given to the police where (1) an attorney was represented to appoint the defendant at his initial appearance and bond was set, (2) later the same day, the attorney passed a detective and the defendant while in the hallway of the police department, the attorney asked the detective if he was going to question the defendant, and the detective responded, “no,” and (3) the detective then questioned the defendant and obtained a statement from him. Beckum v. State, 786 So. 2d 1060, 2001 Miss. LEXIS 155 (Miss. 2001).

Defendant’s Sixth Amendment right to counsel was not violated, despite his claim that authorities obtained statement from him after counsel had been appointed for him, where defendant did not request an attorney or in any way assert his Sixth Amendment right to counsel, and he waived his right to counsel before each inculpatory statement was given. Wilcher v. State, 697 So. 2d 1123, 1997 Miss. LEXIS 101 (Miss. 1997).

Where defendant initiated contact with authorities, questioning after attorney had been appointed for him did not violate his Sixth Amendment right to counsel. Wilcher v. State, 697 So. 2d 1123, 1997 Miss. LEXIS 101 (Miss. 1997).

Where defendant did not request attorney or in any way assert his Sixth Amendment right to counsel, questioning after attorney had been appointed for him did not violate his right. Wilcher v. State, 697 So. 2d 1123, 1997 Miss. LEXIS 101 (Miss. 1997).

If a defendant has not asserted his or her Fifth Amendment right to counsel, the fact that the defendant is appointed counsel to protect his or her Sixth Amendment right does not preclude interrogation on unrelated offenses. As long as the defendant is given the Miranda warning and makes a knowing and voluntary waiver, any statements obtained during the interrogation are admissible. Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

99. – Questioning of defendant without presence of counsel retained for different matter, assistance of counsel.

Federal and state murder prosecutions of the defendant, although identical in their respective elements, were separate offenses for purposes of the Sixth Amendment because they were violations of the laws of two separate sovereigns, i.e., the State of Mississippi and the United States, and, therefore, because the Sixth Amendment is offense-specific, the defendant’s statements during an interview with federal officers were not barred in his federal prosecution, even though they were made when he was represented by counsel in the state proceeding. United States v. Avants, 278 F.3d 510, 2002 U.S. App. LEXIS 190 (5th Cir. Miss.), cert. denied, 536 U.S. 968, 122 S. Ct. 2683, 153 L. Ed. 2d 854, 2002 U.S. LEXIS 5081 (U.S. 2002).

The court properly rejected the contention that because the defendant was represented by counsel in another proceeding, he was not to be questioned with regard to the crime at issue outside the presence of that counsel. Crawford v. State, 716 So. 2d 1028, 1998 Miss. LEXIS 100 (Miss.), cert. denied, 525 U.S. 1021, 119 S. Ct. 550, 142 L. Ed. 2d 458, 1998 U.S. LEXIS 7664 (U.S. 1998).

100. –Time that assistance is provided, assistance of counsel.

Defendant’s conviction for capital murder was proper where he was not denied his right to counsel because, at the time of his confession, he was merely a suspect who had been brought to the sheriff’s department for questioning and thus, his U.S. Const. Amend. VI right to counsel had not yet attached. Further, as his confession occurred during a custodial interrogation, he had a U.S. Const. Amends. V and XIV right to have counsel present, but the lower court found the testimony of the officers that defendant had not invoked his right to counsel more credible than defendant’s assertion that he had done so. Brink v. State, 888 So. 2d 437, 2004 Miss. App. LEXIS 559 (Miss. Ct. App.), cert. denied, 888 So. 2d 1177, 2004 Miss. LEXIS 1475 (Miss. 2004), cert. denied, 544 U.S. 986, 125 S. Ct. 1858, 161 L. Ed. 2d 744, 2005 U.S. LEXIS 3129 (U.S. 2005).

A defendant was not denied effective assistance of counsel because he was not represented by counsel for approximately 2 months following his arraignment where he made no showing that he experienced any adverse effect or “untoward consequence flowing directly from denial of counsel” and there was no indication that the State took advantage of the situation or that any further proceedings were conducted. Johnson v. State, 631 So. 2d 185, 1994 Miss. LEXIS 31 (Miss. 1994).

The failure to provide a defendant with an initial appearance until five days after his arrest even though a judge was available at all times constituted reversible error where the defendant gave a confession in the absence of counsel and in violation of his right to counsel as a consequence of the delay, and the defendant’s conviction for capital murder was based entirely on his confession. Abram v. State, 606 So. 2d 1015, 1992 Miss. LEXIS 448 (Miss. 1992), overruled in part, Foster v. State, 961 So. 2d 670, 2007 Miss. LEXIS 315 (Miss. 2007), overruled in part, Holly v. Mississippi, 2011 U.S. App. LEXIS 24853 (5th Cir. Miss. Dec. 13, 2011).

The explanation of lineup procedures did not constitute improper further interrogation of the defendant after he invoked his right to counsel, where the lineup procedures were not explained for the purpose of eliciting incriminating statements from the defendant, and the explanation of the lineup procedures did not constitute words or actions reasonably likely to elicit an incriminating response. Wilson v. State, 574 So. 2d 1324, 1990 Miss. LEXIS 845 (Miss. 1990).

A delay of over 2 months from the time of the defendant’s capture to the time counsel was appointed did not deny the defendant his constitutional right to effective assistance of counsel. Corley v. State, 536 So. 2d 1314, 1988 Miss. LEXIS 613 (Miss. 1988).

An “eleventh hour” appointment of counsel does not amount to a per se denial of the right to effective assistance of counsel. Bostic v. State, 531 So. 2d 1210, 1988 Miss. LEXIS 484 (Miss. 1988).

A defendant’s right to counsel had not attached at the time of a pre-indictment line up where the record did not reflect that the defendant was or reasonably ought to have been charged with a crime prior to that time. Nixon v. State, 533 So. 2d 1078, 1987 Miss. LEXIS 2917 (Miss. 1987), cert. denied, 490 U.S. 1102, 109 S. Ct. 2458, 104 L. Ed. 2d 1012, 1989 U.S. LEXIS 2745 (U.S. 1989), overruled, Wharton v. State, 734 So. 2d 985, 1998 Miss. LEXIS 576 (Miss. 1998).

Delay in affording counsel to defendant was not sufficient to warrant reversal of conviction, absent showing that accused experienced some untoward consequence flowing directly from denial of counsel, where, during time defendant was without counsel, no confession was obtained from him, nor was any lineup held, nor did State in any way take advantage of his lack of counsel; defendant’s only argument for reversal was that his only witness disappeared during this interlude, whom he contended promptly provided counsel would have been able to locate and have available for trial. Wright v. State, 512 So. 2d 679, 1987 Miss. LEXIS 2710 (Miss. 1987).

101. – – Substituted counsel, assistance of counsel.

Defendant’s right to be represented by his choice of retained counsel was not violated when a trial court denied his motion for a continuance on the morning of trial so that he could discharge his substitute counsel and hire new counsel where there was adequate time between his original attorney’s activation to Iraq and trial for him to retain other counsel. Sturkey v. State, 946 So. 2d 790, 2006 Miss. App. LEXIS 456 (Miss. Ct. App. 2006), cert. denied, 947 So. 2d 960, 2007 Miss. LEXIS 65 (Miss. 2007), cert. denied, 552 U.S. 918, 128 S. Ct. 276, 169 L. Ed. 2d 201, 2007 U.S. LEXIS 10167 (U.S. 2007).

Where defendant fired his court-appointed counsel on the day before trial and was told he could represent himself, be represented by former counsel, or have hybrid representation, the trial court’s denial of his motion for a continuance to obtain substitute counsel was not an abuse of discretion or a violation of his right to counsel. Fields v. State, 879 So. 2d 481, 2004 Miss. App. LEXIS 118 (Miss. Ct. App.), cert. denied, 882 So. 2d 234, 2004 Miss. LEXIS 992 (Miss. 2004).

Circuit Court did not err in refusing to grant continuance following guilt phase of trial, and before sentencing phase, to allow defendant to hire another attorney, because if defendant wanted another attorney he should have notified court of such fact prior to trial; Circuit Court acted within its discretion in denying motion of counsel to withdraw, on stated basis that during course of trial defendant became un-cooperative with him. Faraga v. State, 514 So. 2d 295, 1987 Miss. LEXIS 2656 (Miss. 1987), cert. denied, 487 U.S. 1210, 108 S. Ct. 2858, 101 L. Ed. 2d 894, 1988 U.S. LEXIS 2778 (U.S. 1988).

State trial court did not violate defendant’s Sixth Amendment right to counsel by denying defendant’s motion for continuance until deputy public defender initially assigned to defend him was available, where senior trial attorney who was assigned to represent defendant after deputy public defender was hospitalized told court that he was fully prepared and ready for trial. Morris v. Slappy, 461 U.S. 1, 103 S. Ct. 1610, 75 L. Ed. 2d 610, 1983 U.S. LEXIS 5 (U.S. 1983).

102. – Critical stage, assistance of counsel.

The defendant was denied his right to counsel where he was stopped shortly after a robbery on the basis of a description given by the victim, taken back to the scene of the crime, and identified there by the victim. Pickens v. State, 1998 Miss. App. LEXIS 919 (Miss. Ct. App. Oct. 27, 1998).

The taking of a handwriting exemplar is not a critical stage, and, therefore, there is no right to have counsel present. Burns v. State, 729 So. 2d 203, 1998 Miss. LEXIS 567 (Miss. 1998), cert. denied, 527 U.S. 1041, 119 S. Ct. 2406, 144 L. Ed. 2d 804, 1999 U.S. LEXIS 4526 (U.S. 1999).

The taking of a dental impression is not a critical stage at which a person has a right to counsel. Brewer v. State, 725 So. 2d 106, 1998 Miss. LEXIS 345 (Miss. 1998), cert. denied, 526 U.S. 1027, 119 S. Ct. 1270, 143 L. Ed. 2d 365, 1999 U.S. LEXIS 2032 (U.S. 1999).

Defendant was not entitled to habeas relief on claim that confessions were taken in violation of the Sixth Amendment where he signed written waivers before each statement that he gave to authorities investigating the murders. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

Petitioner’s claim in habeas petition that his confessions were taken in violation of the Sixth Amendment was procedurally barred from review by district court where petitioner failed to raise it at trial, on direct appeal, or in first motions for post-conviction relief, and state Supreme Court determined claim was time barred; petitioner could not proceed on habeas petition on the assumption that all or most of his previous counsel were ineffective for raising every single issue asserted in habeas petition. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

It is a matter of fundamental fairness and due process that the defendant is entitled to be apprised of communications between the court and the jury during deliberations. The defendant is also entitled to be represented by counsel during this very important procedure. Edlin v. State, 523 So. 2d 42, 1988 Miss. LEXIS 108 (Miss. 1988).

Arraignment as practiced in Mississippi does not constitute critical stage whereby presence of counsel is required under Sixth Amendment because no substantial prejudice results to defendant; arraignment proceeding simply serves to inform accused of charges against him, and indictment is read and accused enters plea or one is entered for him; even if defendant pleads guilty, this may later be withdrawn and will be inadmissible at subsequent trial. Williamson v. State, 512 So. 2d 868, 1987 Miss. LEXIS 2683 (Miss. 1987), Walton v. State, 678 So. 2d 645, 1996 Miss. LEXIS 192 (Miss. 1996).

The period immediately after arrest for intoxication is not a “critical stage” of the proceedings for purposes of the right to counsel. Ewing v. State, 300 So. 2d 916, 1974 Miss. LEXIS 1649 (Miss. 1974).

The court’s refusal to permit the defendant in a murder trial to confer with her counsel during a two hour recess, immediately following the conclusion of her direct examination in her own behalf, was an unconstitutional denial of her right to counsel at a crucial stage of the trial, was highly prejudicial, and constituted reversible error. Pendergraft v. State, 191 So. 2d 830, 1966 Miss. LEXIS 1224 (Miss. 1966).

103. –Line up, assistance of counsel.

Defendant was properly denied a new trial because he was not entitled to counsel at the lineup, as at the time of the lineup he was under arrest for a parole violation not for capital murder. Defendant’s right to counsel for capital murder had not yet attached because the warrant for capital murder had not been issued and proceedings for capital murder charges had not begun. Howell v. State, 163 So.3d 240, 2014 Miss. LEXIS 496 (Miss. 2014).

Counsel’s failure to investigate whether defendant was represented by counsel at the lineup did not amount to ineffective assistance of counsel where counsel moved to have the lineup identification excluded, there was a hearing, testimony at the hearing indicated that counsel was present at the lineup, and the trial judge denied the motion. Howell v. State, 163 So.3d 240, 2014 Miss. LEXIS 496 (Miss. 2014).

Defendant’s assertion that his U.S. Const., Amend. VI, right was violated by having no counsel present at a photographic lineup was without merit and an accused did not enjoy the right to counsel during a photographic lineup. Christmas v. State, 10 So.3d 413, 2009 Miss. LEXIS 144 (Miss. 2009).

In appellant’s capital murder case, counsel was ineffective in regard to a lineup identification because attorneys presented affidavits that they were not present at the lineup, and the witness’s identification of appellant was crucial to the State’s case. Minimal efforts on the part of trial counsel could have confirmed the presence or non-presence of counsel at the lineup. Howell v. State, 989 So. 2d 372, 2008 Miss. LEXIS 419 (Miss. 2008).

In a murder case, defendant’s right to counsel was not violated during the line-up as defendant did not ask for counsel once given the opportunity and did not refuse to participate in the line-up after given the option of whether to participate. Brooks v. State, 905 So. 2d 678, 2004 Miss. App. LEXIS 616 (Miss. Ct. App. 2004), rev'd, 903 So. 2d 691, 2005 Miss. LEXIS 191 (Miss. 2005).

Defense counsel’s failure to file a witness list until the morning of trial, which resulted in the trial court excluding defendant’s alibi witnesses, in defendant’s trial for strong-arm robbery, did not constitute ineffective assistance of counsel because defendant was not prejudiced by counsel’s negligence; both the victim and her boss had gotten a good look at defendant during the incident, the victim had picked defendant out of a photo line-up, and both were able to identify defendant at trial; the outcome of the trial would not have been different even if defendant’s girlfriend and his family members had been allowed to support defendant’s alibi. Ransom v. State, 2003 Miss. App. LEXIS 459 (Miss. Ct. App. May 20, 2003), op. withdrawn, sub. op., 918 So. 2d 710, 2004 Miss. App. LEXIS 972 (Miss. Ct. App. 2004).

Only an actual confrontation with the defendant at a lineup is the critical stage which requires the right to counsel. Thus, the presence of counsel was not required at a post-lineup encounter between the witness and the police, at which the defendant was not present, since there was no “actual confrontation” between the defendant and the witness. Wilson v. State, 574 So. 2d 1324, 1990 Miss. LEXIS 845 (Miss. 1990).

A photographic lineup is not a “critical stage” of criminal proceedings and, therefore, an accused enjoys no right to counsel in connection with a photographic lineup. Magee v. State, 542 So. 2d 228, 1989 Miss. LEXIS 179 (Miss. 1989).

The violation of a defendant’s right to counsel at his lineup was harmless constitutional error beyond a reasonable doubt where the witness did not identify the defendant at the lineup and the witness’ in-court identification testimony was not impermissibly tainted by anything that occurred at the lineup. Magee v. State, 542 So. 2d 228, 1989 Miss. LEXIS 179 (Miss. 1989).

Although the denial of the defendant’s right to counsel at a line up was a technical violation of his constitutional right to counsel, it was “harmless constitutional error” where the witnesses’ identification of the defendant was based on their view of the defendant at the time of the crime rather than on the line up identification and there was other overwhelming evidence favoring conviction. Jimpson v. State, 532 So. 2d 985, 1988 Miss. LEXIS 428 (Miss. 1988).

A voice “lineup” closely resembles the trial-like confrontation of a corporeal lineup and amounts to a critical stage of criminal proceedings for which counsel should be present. Nicholson v. State, 523 So. 2d 68, 1988 Miss. LEXIS 73 (Miss. 1988).

Prosecution had commenced and, therefore, the defendant’s constitutional right to counsel had attached at the time of a line up where an arrest warrant had issued and the defendant was in custody. Livingston v. State, 519 So. 2d 1218, 1988 Miss. LEXIS 47 (Miss. 1988).

Impromptu viewing by robbery victim of robbery suspect in jail does not constitute showup at which suspect’s attorney should be present where viewing is not arranged or authorized by state but is independent act of private individual who is frequent visitor to jail and is often allowed to go into cell block area. Thompson v. State, 483 So. 2d 690, 1986 Miss. LEXIS 2397 (Miss. 1986).

A defendant’s Sixth Amendment rights were not violated by the failure to suppress testimony in regard to a lineup identification, where the defendant had intelligently waived his right to counsel at the time of the lineup which he was requesting and insisting upon. Anderson v. State, 413 So. 2d 725, 1982 Miss. LEXIS 1936 (Miss. 1982).

Counsel is not required at a pre-indictment lineup or showup. Hobson v. State, 285 So. 2d 464, 1973 Miss. LEXIS 1289 (Miss. 1973).

104. – Guilty plea, assistance of counsel.

Defendant failed to show that defendant received ineffective assistance of counsel during a guilty plea proceeding because counsel did not coerce defendant into pleading guilty, but simply informed defendant of the likely outcome of the case, believing it would be in defendant’s best interest to enter a guilty plea. Defendant, at 55 years old, was charged with four counts of fondling a child; each count carried a maximum penalty of fifteen years in prison. Mayhan v. State, 26 So.3d 1072, 2009 Miss. App. LEXIS 327 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 58 (Miss. 2010).

Defendant’s claim that his attorney rendered ineffective assistance of counsel because he led defendant to believe that he would be placed in the drug court program was without merit as during his guilty plea hearing, defendant swore that his lawyer had not promised him anything to get him to plead guilty and defendant swore that he was satisfied with the services of his attorney. Bliss v. State, 2 So.3d 777, 2009 Miss. App. LEXIS 60 (Miss. Ct. App. 2009).

Defendant did not receive ineffective assistance of counsel where in the petition to enter his guilty plea, defendant clearly acknowledged that his sentence was up to the court and that he could receive zero to ninety years imprisonment; defendant indicated his satisfaction with his attorney’s advice and recognized that if he had been told by his lawyer that he might receive a lighter sentence this was merely a prediction and not binding on the court. Davis v. State, 5 So.3d 435, 2008 Miss. App. LEXIS 366 (Miss. Ct. App. 2008).

Defendant did not demonstrate ineffective assistance of counsel where his guilty plea admitted all elements of a formal charge and operated as a waiver of all non-jurisdictional defects contained in an indictment; defendant was unable to name any witnesses that should have been interviewed and his attorney advised him of the maximum and minimum sentence. Nichols v. State, 994 So. 2d 236, 2008 Miss. App. LEXIS 310 (Miss. Ct. App. 2008).

Trial counsel was not deficient in failing to inform defendant that he could have been charged with carjacking when neither defendant nor his trial counsel had any choice in the matter. Keith v. State, 999 So. 2d 383, 2008 Miss. App. LEXIS 313 (Miss. Ct. App. 2008), cert. denied, 999 So. 2d 852, 2009 Miss. LEXIS 52 (Miss. 2009).

Defendant’s trial counsel was not inefficient where defendant neither professed his innocence, nor called attention to the impairment of any defense as a result of not being informed of his ineligibility for parole; trial counsel informed defendant that a conviction for armed robbery carried with it ineligibility for parole. Keith v. State, 999 So. 2d 383, 2008 Miss. App. LEXIS 313 (Miss. Ct. App. 2008), cert. denied, 999 So. 2d 852, 2009 Miss. LEXIS 52 (Miss. 2009).

Denial of the inmate’s motion for postconviction relief was proper in part because he failed to show the ineffective assistance of counsel, as there was no proof that his attorney did not explain the charges to him; to the contrary, the inmate twice swore under oath that his attorney explained the charges to him and that he understood them. Knight v. State, 959 So. 2d 598, 2007 Miss. App. LEXIS 444 (Miss. Ct. App.), cert. denied, 964 So. 2d 508, 2007 Miss. LEXIS 538 (Miss. 2007).

Defendant raised a claim of ineffective assistance of counsel which required a full evidentiary hearing where there was evidence that the victim’s girlfriend poured boiling water on him, along with defendant’s testimony that someone else committed this act, which was enough to raise a reasonable doubt that defendant committed the offense; this evidence may have changed the outcome had the parties gone forward. Hannah v. State, 943 So. 2d 20, 2006 Miss. LEXIS 578 (Miss. 2006).

Any advice by counsel that defendant would be eligible for parole was incorrect and constituted deficient performance, and having shown deficient performance, defendant had to prove that he would not have pled guilty but for the incorrect advice; if his attorney improperly advised him of his eligibility for parole, defendant was entitled to a hearing to investigate his claim that he would not have pled guilty but for the incorrect advice. Garner v. State, 928 So. 2d 911, 2006 Miss. App. LEXIS 119 (Miss. Ct. App.), cert. denied, 929 So. 2d 923, 2006 Miss. LEXIS 252 (Miss. 2006), cert. denied, 549 U.S. 1060, 127 S. Ct. 677, 166 L. Ed. 2d 528, 2006 U.S. LEXIS 9138 (U.S. 2006).

Defendant did not carry his burden of proving that ineffective assistance of counsel led him to plead guilty to armed robbery when he otherwise would have asserted his innocence where defendant, in open court, had responded during his plea allocution that he was satisfied with the legal advice and services of his attorney. At no point in his plea of guilty and sentencing did defendant assert his innocence. Vandergriff v. State, 920 So. 2d 486, 2006 Miss. App. LEXIS 50 (Miss. Ct. App. 2006).

Appellate court affirmed the denial of the inmate’s petition; the inmate was unable to show that but for the ineffective assistance of counsel he would not have pled guilty because the inmate stated that he was pleased with his counsel’s representation at the plea hearing. Further, the inmate’s counsel had the armed robbery charge reduced to simple robbery. Ivy v. State, 918 So. 2d 84, 2006 Miss. App. LEXIS 10 (Miss. Ct. App. 2006).

Inmate failed to establish his claims that he was deprived of effective assistance of counsel because he was persuaded to plead guilty, and that his guilty plea was involuntary and was entered after being ill advised by his counsel, as his counsel was obligated to advise him that the potential consequences of trial and conviction of both counts could be a maximum of 120 years imprisonment, and the inmate acknowledged that he had been informed that a guilty plea would waive his right to a public and speedy trial by jury, his right to confront adverse witnesses, and his right to protection against self incrimination. Epps v. State, 926 So. 2d 242, 2005 Miss. App. LEXIS 991 (Miss. Ct. App. 2005).

Appellate court affirmed the denial of an inmate’s motion for post-conviction relief as the inmate did not establish that he was deprived of effective assistance of counsel during his plea hearing, because his mother and his sister testified that the inmate’s attorney had told him that he would be pleading guilty to simple assault and would be sentenced to time served, and that testimony directly contradicted the inmate’s testimony at the actual plea hearing where he acknowledged that he was pleading guilty to aggravated assault. Riggs v. State, 912 So. 2d 162, 2005 Miss. App. LEXIS 712 (Miss. Ct. App. 2005).

To the extent that the inmate’s trial counsel erroneously advised the inmate that he would be eligible for parole after 10 years, the advice was incorrect and the counsel’s performance was deficient; thus, the inmate was entitled to an evidentiary hearing to determine if he would have pled differently had the correct advice about parole been given. Garner v. State, 2005 Miss. App. LEXIS 695 (Miss. Ct. App. Sept. 27, 2005).

Denial of an inmate’s motion for post-conviction relief was affirmed as the inmate’s claim that his guilty plea was not knowing and voluntary due to his counsel’s alleged deficient performance was contradicted by the inmate’s statements at the plea hearing that he understood the consequences of his plea and was satisfied with his counsel’s performance. Gonzales v. State, 915 So. 2d 1108, 2005 Miss. App. LEXIS 1001 (Miss. Ct. App. 2005).

Appellate court affirmed the denial of an inmate’s motion for post-conviction relief as the inmate provided nothing more than his own affidavit to establish that he was deprived of effective assistance of counsel and did not allege that had it not been for his counsel’s alleged ineffectiveness that he would not have pled guilty. Covington v. State, 909 So. 2d 160, 2005 Miss. App. LEXIS 582 (Miss. Ct. App. 2005).

Defendant’s motion for post-conviction relief was properly denied because defendant’s claim of ineffective assistance of counsel concerning defendant’s guilty pleas was without merit as the record showed that defendant expressed satisfaction with his guilty plea and his attorney’s performance. Further, defendant stated at the plea hearing that he understood the sentencing recommendation to which he subsequently objected. Sykes v. State, 909 So. 2d 120, 2005 Miss. App. LEXIS 546 (Miss. Ct. App. 2005).

Defendant was not prejudiced after defense counsel was excused from the courtroom during a plea proceeding where the only issue raised after counsel’s departure was the trial judge’s decision to retain jurisdiction over the case. In any event, defendant was represented by another attorney at that time with whom he was familiar. McBride v. State, 2005 Miss. App. LEXIS 314 (Miss. Ct. App. May 10, 2005), op. withdrawn, sub. op., 914 So. 2d 260, 2005 Miss. App. LEXIS 524 (Miss. Ct. App. 2005).

Record clearly demonstrated that defendant was informed that should he plead guilty to the crime, his plea of guilty would act as a waiver to a direct appeal to the Mississippi Supreme Court pursuant to Miss. Code Ann. §99-35-101. Further, it could not be said that counsel’s brief moment of confusion regarding which charges the State would pursue, rose to the level of ineffective assistance of counsel and the record clearly indicated that the trial judge explained to defendant the terms of the plea agreement; thus, defendant was not denied either due process or effective assistance of counsel. Sykes v. State, 895 So. 2d 191, 2005 Miss. App. LEXIS 150 (Miss. Ct. App. 2005).

Defendant argued that his counsel was deficient for failing to inform him of the elements of burglary and escape; however, defendant told the judge he understood the charges and sentences available and, as a result, he pleaded guilty with full knowledge. In a post-conviction relief proceeding, the elements of the claim of ineffective assistance of counsel must be pleaded with specificity, which defendant failed to do. Gaddis v. State, 904 So. 2d 1197, 2004 Miss. App. LEXIS 1028 (Miss. Ct. App. 2004).

Post-conviction relief was properly denied in a D.U.I. case because the driver’s counsel was not ineffective, as counsel properly informed him that if he did not accept the offered plea bargain, the State would charge him as an habitual offender, and the driver’s claim that he could not have been charged as a habitual offender, based on his contention that at least one of his prior offenses had occurred before the habitual offender statute went into effect, was clearly wrong. Lawson v. State, 882 So. 2d 783, 2004 Miss. App. LEXIS 922 (Miss. Ct. App. 2004).

Defendant never told the trial judge in his post-conviction relief motion what additional discovery materials would have disclosed nor how such material would have affected his decision to plead guilty, such that he did not demonstrate ineffective assistance of counsel that would have led to a different result; even taking defendant’s claims of ineffective assistance of counsel as true, he did not show that the performance of his trial counsel caused him to plead guilty or was in any other manner deficient. Chandler v. State, 883 So. 2d 614, 2004 Miss. App. LEXIS 944 (Miss. Ct. App. 2004).

As an inmate had two prior felony convictions, one of which was for aggravated assault, he could have been indicted as an habitual offender under to Miss. Code Ann. §99-19-83; therefore, his counsel did not provide ineffective assistance by warning him that this would occur unless he pled guilty. Hearvey v. State, 887 So. 2d 836, 2004 Miss. App. LEXIS 926 (Miss. Ct. App. 2004).

Inmate was not deprived of effective assistance of counsel prior to pleading guilty; the appellate court noted that at the inmate’s hearing he admitted to committing the crimes, admitted that he was voluntarily entering his plea, and that his attorneys had properly advised him concerning his constitutional rights and the consequences of pleading guilty. Farris v. State, 881 So. 2d 392, 2004 Miss. App. LEXIS 876 (Miss. Ct. App. 2004).

Because neither the plea transcript nor any other evidence showed that defendant had ever received correct information about his parole eligibility, he successfully alleged that he had received ineffective assistance of counsel due to his attorney’s incorrect advice about his parole eligibility and he was entitled to an evidentiary hearing to explore the merits of his claim. Thomas v. State, 881 So. 2d 912, 2004 Miss. App. LEXIS 504 (Miss. Ct. App. 2004).

Appellant was properly denied post-conviction relief, because, regardless of a procedural bar, it was clear from the record of the plea colloquy that appellant was informed of the consequences of a guilty plea; thus, appellant’s claim that counsel was ineffective for failing to inform appellant of the consequences of a guilty plea was without merit. Williams v. State, 872 So. 2d 711, 2004 Miss. App. LEXIS 400 (Miss. Ct. App. 2004).

Appellant was properly denied post-conviction relief, because appellant’s guilty plea, statements he made during the plea hearing, and his attorney’s signed certificate demonstrated that there had been effective assistance of counsel. Jackson v. State, 872 So. 2d 708, 2004 Miss. App. LEXIS 402 (Miss. Ct. App. 2004).

Defendant offered no evidence to support his contention that his lawyer had given him bad advice in advising him to plead guilty to support his ineffective assistance claim; when asked at his guilty plea hearing whether he was satisfied with the advice and help given by his attorney, defendant responded affirmatively. Wofford v. State, 875 So. 2d 251, 2004 Miss. App. LEXIS 302 (Miss. Ct. App. 2004).

Appellate court found no indication that defendant’s attorney had performed in a deficient manner where defendant told the judge he was guilty of manslaughter, affirmed that his attorney had explained everything in his petition to plead guilty and that he understood everything in the petition; there was no evidence that defendant’s attorney performed in a deficient manner or that any supposed deficiency in any way prejudiced defendant. Thomas v. State, 861 So. 2d 371, 2003 Miss. App. LEXIS 1188 (Miss. Ct. App. 2003).

Valid guilty plea operated as a waiver of all non-jurisdictional rights or defects that were incident to trial; defendant was fully advised of his rights and the maximum sentences he faced if he chose to go to trial, and he was provided a detailed admonishment prior to accepting his guilty plea, such that defendant’s plea was made knowingly, intelligently, and voluntarily and he waived any rights regarding the allegedly coerced confession. Swindoll v. State, 859 So. 2d 1063, 2003 Miss. App. LEXIS 1071 (Miss. Ct. App. 2003).

Because defendant’s guilty plea petition failed to mention any deficient performance by his counsel and defendant represented that he was satisfied with counsel’s representation, he did not receive ineffective assistance. Swindoll v. State, 859 So. 2d 1063, 2003 Miss. App. LEXIS 1071 (Miss. Ct. App. 2003).

Inmate entered his guilty plea in a manner that was knowing, voluntary, and intelligent, and he testified that no one made any promises, coerced, or induced him into pleading guilty; the record of the hearing belied the inmate’s claims that counsel was ineffective for allegedly misleading him and coercing him into pleading guilty. Glass v. State, 856 So. 2d 762, 2003 Miss. App. LEXIS 944 (Miss. Ct. App. 2003).

Evidence was insufficient to establish ineffective assistance of counsel in connection with the defendant’s guilty plea where the trial court engaged in a lengthy course of inquiry with the defendant as to his understanding of the difference between a plea of guilty and not guilty and that, if he elected to plead guilty, the choice was solely his, and where the defendant merely alleged that his attorneys were insufficiently vigorous in their efforts to persuade him to submit to a trial. Magee v. State, 752 So. 2d 1100, 1999 Miss. App. LEXIS 661 (Miss. Ct. App. 1999).

The defendant was not denied effective assistance of counsel in connection with his guilty plea, notwithstanding the assertion by the defendant that counsel informed him that he had an agreement with the Department of Corrections and would only serve two and one-half years as a result of his guilty plea, where the defendant was apprised of his rights and the possible consequences of his guilty plea, defense counsel’s associated, local counsel informed the defendant prior to his plea that he would receive a sentence of 20 years if he entered a plea of guilty, and the trial judge informed the defendant that the district in which he was pleading did not negotiate plea bargains and that the maximum sentence that might be imposed was 20 years. Martin v. State, 749 So. 2d 375, 1999 Miss. App. LEXIS 601 (Miss. Ct. App. 1999).

Attorney provided ineffective assistance of counsel where he persuaded defendant to plead guilty to the charges with the collateral intention of covering up the fact that counsel was unprepared for trial, failed to check into defendant’s alibi defense, and defendant was unable to read the statements contained in the petition to enter a guilty plea stating that defendant was satisfied with the legal advice given him, which statements were read to him by his counsel, with no other witnesses present. Kirksey v. State, 728 So. 2d 565, 1999 Miss. LEXIS 8 (Miss. 1999).

Defense counsel was not ineffective where (1) he negotiated a plea bargain, but the defendant failed to accept it by the deadline and, thus, the agreement lapsed, (2) he then relayed the defendant’s desire to enter a guilty plea to the court when instructed to do so by the defendant, and (3) he explained the constitutional rights waived and consequences of pleading guilty. Tobias v. State, 724 So. 2d 972, 1998 Miss. App. LEXIS 1050 (Miss. Ct. App. 1998).

Strickland test for determining whether defense counsel was ineffective applies to challenges to guilty pleas based on ineffective assistance of counsel. Walker v. State, 703 So. 2d 266, 1997 Miss. LEXIS 634 (Miss. 1997).

Defendant failed to establish that his counsel’s failure to advise him, prior to his entry of guilty plea, of mandatory minimum sentence constituted ineffective assistance of counsel; defendant’s plea bargain added only concurrent sentence and dropped four pending criminal charges, defendant had answered affirmatively at plea hearing to question regarding whether he was satisfied with legal services and advice of his counsel, and defendant’s counsel stated in affidavit that defendant had known of legal consequences of plea and that defendant had agreed plea was best course of action. Ashby v. State, 695 So. 2d 589, 1997 Miss. LEXIS 243 (Miss. 1997).

Counsel was not ineffective in advising defendant to plead guilty to charge of felony driving under the influence (DUI); counsel, along with district attorney, explained charges contained in indictment and possible sentencing range, and defendant was not prejudiced by counsel’s failure to advise him of typographical error in indictment. Drennan v. State, 695 So. 2d 581, 1997 Miss. LEXIS 244 (Miss. 1997).

In addition to determining that defendant who seeks to plead guilty or waive right to counsel is competent, trial court must satisfy itself that waiver of his constitutional rights is knowing and voluntary. Dunn v. State, 693 So. 2d 1333, 1997 Miss. LEXIS 233 (Miss. 1997).

Defendant who pled guilty to capital murder in order to avoid trial that would have subjected him to possible death sentence failed to show he was prejudiced, as required to support ineffective assistance of counsel claim; only thing that might have been different had case gone to trial was sentence defendant received. Taylor v. State, 682 So. 2d 359, 1996 Miss. LEXIS 532 (Miss. 1996).

Allegations by defendant who had pleaded guilty to charge of capital murder in order to avoid death penalty that sentences received by his accomplices were substantially less than his were insufficient to state claim of ineffective assistance of counsel; record indicated that accomplices, with one exception, were not given extremely reduced sentences as compared to defendant, and prosecutor stated that accomplice who received substantially reduced sentence had been involved in murder to lesser extent than others. Simpson v. State, 678 So. 2d 712, 1996 Miss. LEXIS 413 (Miss. 1996).

Defendant did not receive ineffective assistance of counsel in entering guilty plea to 2 counts of armed robbery, where counsel gave defendant accurate information about consequences of being found guilty after trial, defendant swore under oath that plea was voluntary, trial court questioned defendant as to voluntariness of plea prior to plea hearing, and defendant had prior experience in dealing with felony charges and was familiar with court proceedings. Roland v. State, 666 So. 2d 747, 1995 Miss. LEXIS 600 (Miss. 1995).

Standard generally applicable to determine claims of ineffective assistance of counsel is also applicable to judge counsel’s performance in entry of guilty plea. Roland v. State, 666 So. 2d 747, 1995 Miss. LEXIS 600 (Miss. 1995).

A murder defendant was not denied effective assistance of counsel by his attorney’s admission of his guilt of the crime where the evidence of guilt was overwhelming, and the attorney admitted that the defendant was guilty of simple murder, not capital murder, and submitted a lesser-included offense instruction in accordance with the argument. Woodward v. State, 635 So. 2d 805, 1993 Miss. LEXIS 442 (Miss. 1993).

A defendant who was convicted of armed robbery was entitled to an evidentiary hearing pursuant to §§99-39-13 through99-39-23 on the issue of whether he was afforded ineffective assistance of counsel during the plea process, where the defendant alleged that his attorney erroneously informed him that if he accepted the prosecution’s plea bargain offer of 15 years imprisonment he would be eligible for parole after serving 3 years and 9 months of his sentence, and that he would not have accepted the prosecution’s plea bargain offer had he known that he would be ineligible for parole for 10 years pursuant to §47-7-3(1)(d), which provides that a person convicted of robbery and sentenced to more than 10 years imprisonment shall not be eligible for parole until after serving at least 10 years of the sentence. Alexander v. State, 605 So. 2d 1170, 1992 Miss. LEXIS 573 (Miss. 1992).

When a convicted defendant challenges his guilty plea on grounds of ineffective assistance of counsel, he must show unprofessional errors of substantial gravity. Reynolds v. State, 521 So. 2d 914, 1988 Miss. LEXIS 106 (Miss. 1988).

A defendant who, in reliance upon his counsel’s advice that he could receive the death penalty at a second trial, following upon a first trial conviction and life sentence for murder, entered a guilty plea prior to such second trial and was sentenced to life imprisonment, could not withdraw his guilty plea on the grounds that it was entered as a result of ineffective assistance of counsel, where, at the time given, counsel’s advice was correct, and became incorrect only several years later when the United States Supreme Court and the Mississippi Supreme Court ruled that the double jeopardy clause of the state and federal constitutions precluded imposition of the death penalty when defendant had previously been sentenced to life imprisonment for the same crime. Odom v. State, 498 So. 2d 331, 1986 Miss. LEXIS 2753 (Miss. 1986).

Defendant who enters plea of guilty to charge of armed robbery pursuant to plea bargain agreement in reliance upon erroneous advice of attorney that defendant will be eligible for earned good time and will be subject to release after serving 7 years of sentence is entitled to vacation of guilty plea and reinstatement of innocent plea when Mississippi Department of Corrections changes administrative policy to comply with §§47-5-139,47-7-3, thereby requiring that defendant serve minimum of 10 years. Coleman v. State, 483 So. 2d 680, 1986 Miss. LEXIS 2336 (Miss. 1986).

Denial of the inmate’s petition for post-conviction relief was proper where he offered no proof that his defense counsel had been ineffective and failed to present his claims with any specificity as required by Miss. Code Ann. §99-39-11(2). Puckett v. State, 879 So. 2d 920, 2004 Miss. LEXIS 592 (Miss. 2004), cert. denied, 544 U.S. 924, 125 S. Ct. 1638, 161 L. Ed. 2d 483, 2005 U.S. LEXIS 2506 (U.S. 2005).

105. – Mental examination, assistance of counsel.

Inmate failed to show that trial counsel was constitutionally ineffective for failing to present evidence related to the inmate’s mental state, as trial counsel subjected the inmate to extensive testing, two of whom concluded that the inmate was competent and not legally insane that he had malingered his memory deficits Crawford v. State, 218 So.3d 1142, 2016 Miss. LEXIS 305 (Miss. 2016).

Despite that defendant’s competency evaluation was conducted in violation of his constitutional right to counsel due to a conflict between defendant and his counsel, any error was harmless because defendant was not prejudiced by the evaluation and he failed to show that his counsel’s personal conflict adversely affected his representation of defendant. Crawford v. State, 192 So.3d 905, 2015 Miss. LEXIS 445 (Miss. 2015), cert. denied, — U.S. —, 136 S. Ct. 2527, 195 L. Ed. 2d 855, 2016 U.S. LEXIS 4084 (U.S. 2016).

Defense counsel was not ineffective in withdrawing his request for a mental evaluation of defendant after he could find no independent information suggesting that defendant was ever found to be in need of psychiatric or psychological care and no indication that defendant would not be competent to stand trial or that he had been legally insane at the time of the offense. Counsel was not deficient because he was intimately familiar with defendant, his family, and his background and because he conducted his own investigation and, after consulting with defendant, withdrew his request for a mental evaluation as originally filed and asked that an evaluation be conducted for purposes of securing mitigating evidence for use during the penalty phase of defendant’s capital murder trial. Goff v. State, 14 So.3d 625, 2009 Miss. LEXIS 273 (Miss. 2009), cert. denied, 559 U.S. 944, 130 S. Ct. 1513, 176 L. Ed. 2d 122, 2010 U.S. LEXIS 1251 (U.S. 2010).

Denial of the inmate’s motion for post-conviction relief was appropriate because his counsel was not ineffective; his counsel had filed for the inmate to undergo a mental examination and counsel further took the inmate’s mental condition into consideration when asking for a lenient sentence. Hayes v. State, 935 So. 2d 1133, 2006 Miss. App. LEXIS 562 (Miss. Ct. App. 2006).

In an ineffective assistance of counsel claim, certainly the decision to introduce the 1985 diagnosis could be considered a reasonable strategic decision made by trial counsel inasmuch as had the evaluation been introduced, the State would have rebutted with the 2002 evaluation which found that defendant was not mentally retarded. Also, because defendant’s claim for protection under the prohibition against executing mentally retarded individuals failed, the claim of ineffective assistance of counsel based upon the failure to introduce the 1985 evaluation had to also fail. Branch v. State, 882 So. 2d 36, 2004 Miss. LEXIS 586 (Miss. 2004), cert. denied, 544 U.S. 907, 125 S. Ct. 1595, 161 L. Ed. 2d 282, 2005 U.S. LEXIS 2289 (U.S. 2005).

In defendant’s ineffective assistance of counsel claim that counsel was deficient in failing to introduce evidence of mental health mitigation and the 1985 evaluation finding him mildly mental retarded, trial counsel made a strategic, tactical decision not to introduce the 1985 evaluation as that evidence was contradicted by the 2002 evaluation, which presented a strong case that defendant was not mentally retarded, evidenced that defendant was untruthful in his trial testimony, and affirmatively showed that defendant’s confession was not coerced. Thus, defense counsel was not ineffective. Branch v. State, 882 So. 2d 36, 2004 Miss. LEXIS 586 (Miss. 2004), cert. denied, 544 U.S. 907, 125 S. Ct. 1595, 161 L. Ed. 2d 282, 2005 U.S. LEXIS 2289 (U.S. 2005).

The defendant was entitled to present the issue to the trial court of whether his trial counsel was ineffective in failing to seek other expert assistance when a state hospital mental examination produced no report, and whether such inaction resulted in any prejudice to his case at sentencing. Brown v. State, 749 So. 2d 82, 1999 Miss. LEXIS 344 (Miss. 1999).

The Sixth Amendment was not violated when a court-appointed physician testified on rebuttal during the sentencing phase of the defendant’s murder prosecution, notwithstanding that the physician gleaned information about the defendant by observing his competency hearing and that defense counsel did not have notice that such would occur, since the defense was on notice that the physician would be called in rebuttal if the defendant called his own expert to testify. Evans v. State, 725 So. 2d 613, 1997 Miss. LEXIS 389 (Miss. 1997), cert. denied, 525 U.S. 1133, 119 S. Ct. 1097, 143 L. Ed. 2d 34, 1999 U.S. LEXIS 1510 (U.S. 1999).

Rebuttal testimony of psychologist and psychiatrist appointed at state’s request was not based on evidence obtained in violation of Sixth Amendment, where testimony did not result from examination beyond scope of court’s order, defense counsel was aware of psychological examination and prepared defendant for it, defense counsel decided not to be present, doctors warned defendant of his rights, and defendant exercised those rights by refusing to answer some questions during the examination. Wilcher v. State, 697 So. 2d 1087, 1997 Miss. LEXIS 100 (Miss. 1997), cert. denied, 522 U.S. 1053, 118 S. Ct. 705, 139 L. Ed. 2d 647, 1998 U.S. LEXIS 149 (U.S. 1998).

106. –Medical examination, assistance of counsel.

A smear test for gonorrhea, which was conducted after the defendant was arrested for rape, did not constitute a “critical stage” of the criminal proceedings, and therefore the defendant had no right to the presence and advice of counsel under the Sixth Amendment. Ormond v. State, 599 So. 2d 951, 1992 Miss. LEXIS 153 (Miss. 1992).

107. –Statements to private persons or informants, assistance of counsel.

Statements made to private individuals do not implicate Sixth Amendment right to counsel. Wilcher v. State, 697 So. 2d 1087, 1997 Miss. LEXIS 100 (Miss. 1997), cert. denied, 522 U.S. 1053, 118 S. Ct. 705, 139 L. Ed. 2d 647, 1998 U.S. LEXIS 149 (U.S. 1998).

Defendant’s right to counsel was not violated by law enforcement officers’ use of defendant’s wife as confidential informant, absent showing that wife communicated the substance of defendant’s conversations and thereby created a realistic possibility of injury to defendant or benefit to the State. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

An inmate was not interrogated by another inmate, who informed the police about what he had been told, in violation of his Sixth Amendment right to have counsel present during interrogation, where there was no evidence that the police actively solicited any action by the informant or gave him anything in return for information which he provided. Ladner v. State, 584 So. 2d 743, 1991 Miss. LEXIS 434 (Miss.), cert. denied, 502 U.S. 1015, 112 S. Ct. 663, 116 L. Ed. 2d 754, 1991 U.S. LEXIS 7261 (U.S. 1991).

Sixth Amendment right to counsel is not violated where, after accused’s arraignment, police informant in same cell listens to and reports accused’s incriminating statements without questioning accused directly. Kuhlmann v. Wilson, 477 U.S. 436, 106 S. Ct. 2616, 91 L. Ed. 2d 364, 1986 U.S. LEXIS 65 (U.S. 1986).

108. – Waiver, assistance of counsel.

There was no Miranda violation when officer approached hospitalized defendant third time for confession, because officer gave adequate warning and because defendant voluntarily and knowingly waived his rights before giving statement. Keller v. State, 138 So.3d 817, 2014 Miss. LEXIS 89 (Miss. 2014), cert. denied, — U.S. —, 135 S. Ct. 1397, 191 L. Ed. 2d 371, 2015 U.S. LEXIS 1353 (U.S. 2015).

Circuit court did not err in finding that defendant waived his right under U.S. Const. amend VI and Miss. Const. art. 3, § 26 to the assistance of counsel under Miss. Unif. Cir. & Cty. R. 8.05 where the record was clear that even after the circuit court apprised defendant of his rights, he refused to participate in his trial. Defendant purposefully intended to use his absolute right to counsel to avoid going to trial, a course of action that the Alabama Supreme Court specifically proscribed; additionally, defendant’s waiver was knowing and voluntary since he was fully aware of the rights that he would be jeopardizing by proceeding without counsel. Lewis v. State, 131 So.3d 579, 2013 Miss. App. LEXIS 129 (Miss. Ct. App. 2013), cert. denied, 132 So.3d 579, 2014 Miss. LEXIS 94 (Miss. 2014).

Regardless of whether defendant made an official waiver of appellate counsel on the record, he clearly asked that his appellate counsel be withdrawn, knowing that the result of that decision was that he would have to hire counsel himself or proceed pro se. Quite simply, defendant could not request, on the one hand, that his appointed appellate counsel be terminated and claim, on the other hand, that he was denied his Sixth Amendment right to counsel. Sullinger v. State, 935 So. 2d 1067, 2006 Miss. App. LEXIS 25 (Miss. Ct. App.), cert. denied, 936 So. 2d 367, 2006 Miss. LEXIS 423 (Miss. 2006).

Counsel was not ineffective in failing to object to defendant’s conviction of armed carjacking and armed robbery arising out of the same episode on the grounds of double jeopardy where double jeopardy did not apply because the carjacking charge involved a delivery truck and the robbery involved money taken from one of the occupants of the truck; counsel would not be judged ineffective for making a spurious argument. McCline v. State, 856 So. 2d 556, 2003 Miss. App. LEXIS 460 (Miss. Ct. App.), cert. denied, 860 So. 2d 315, 2003 Miss. LEXIS 722 (Miss. 2003).

Because an officer’s informing defendant that his requested counsel would not represent him was not interrogation, defendant’s subsequent statement that he wanted to talk was on his own initiative, and since he then executed an express waiver of rights, his confession was voluntary. Bryant v. State, 853 So. 2d 814, 2003 Miss. App. LEXIS 491 (Miss. Ct. App.), cert. denied, 852 So. 2d 577, 2003 Miss. App. LEXIS 880 (Miss. Ct. App. 2003).

While the Sixth Amendment to the United States Constitution guaranteed defendant a right to the assistance of counsel, defendant was entitled to waive that right and did so, even though he said he should not say anything until he talked to his lawyer, by reinitiating communication with police after he had broken off questioning, especially since the statements he made implicating himself in a murder were not coerced. Grayson v. State, 806 So. 2d 241, 2001 Miss. LEXIS 303 (Miss. 2001), cert. denied, 537 U.S. 973, 123 S. Ct. 466, 154 L. Ed. 2d 329, 2002 U.S. LEXIS 7800 (U.S. 2002).

The defendant’s confession was properly taken without his attorney present where there was no evidence in the record that tended to show that the defendant ever asked for his attorney throughout his entire conversation with the officer to whom he gave his confession, even when given his Miranda rights by the officer and the defendant signed a waiver of his Miranda rights before giving his confession. Marshall v. State, 812 So. 2d 1068, 2001 Miss. App. LEXIS 131 (Miss. Ct. App. 2001).

The interrogation of the defendant by police officers after his initial appearance before a magistrate did not violate the Sixth Amendment as the defendant did not request an attorney or in any way assert his Sixth Amendment right to counsel at his initial appearance or otherwise. Beckum v. State, 2000 Miss. App. LEXIS 568 (Miss. Ct. App. Dec. 5, 2000), rev'd, 786 So. 2d 1060, 2001 Miss. LEXIS 155 (Miss. 2001).

Under a totality of the circumstances, the defendant knowingly, understandingly, freely and voluntarily waived her Miranda rights, particularly the right to counsel, and her statements were admissible; while it certainly would have been permissible, and perhaps desirable, for law enforcement officials to inform the defendant that her parents were in the process of hiring an attorney for her and that an attorney had called to speak with her, they were not under a legal obligation to do so. Wilhite v. State, 791 So. 2d 231, 2000 Miss. App. LEXIS 302 (Miss. Ct. App. 2000).

The defendant waived any right to counsel with regard to the introduction into evidence of oral statements made by the defendant to an inmate where (1) the other inmate was not in any way involved or implicated in the crimes charged against the defendant, and (2) the other inmate approached the state with the information and was not solicited by the state to act as an informant against the defendant. Humphrey v. State, 759 So. 2d 368, 2000 Miss. LEXIS 101 (Miss. 2000).

The defendant’s incriminating statement was not made in violation of his right to counsel where he never requested the presence of his lawyer either prior to or during questioning and where he initiated contact with the police. Genry v. State, 735 So. 2d 186, 1999 Miss. LEXIS 123 (Miss. 1999).

The defendant’s continued acquiescence in representation by counsel waived his right to proceed pro se where, during trial, he repeatedly renewed his request to proceed pro se, but his requests were conditional and far from unambiguous. Evans v. State, 725 So. 2d 613, 1997 Miss. LEXIS 389 (Miss. 1997), cert. denied, 525 U.S. 1133, 119 S. Ct. 1097, 143 L. Ed. 2d 34, 1999 U.S. LEXIS 1510 (U.S. 1999).

There was no conflict of interest where defense counsel had previously represented a codefendant in a prior proceeding that also involved the defendant. McCaleb v. State, 743 So. 2d 409, 1999 Miss. App. LEXIS 294 (Miss. Ct. App. 1999).

Defendant’s Sixth Amendment right to counsel was not violated, despite his claim that authorities obtained statement from him after counsel had been appointed for him, where defendant did not request an attorney or in any way assert his Sixth Amendment right to counsel, and he waived his right to counsel before each inculpatory statement was given. Wilcher v. State, 697 So. 2d 1123, 1997 Miss. LEXIS 101 (Miss. 1997).

Defendant may generally waive his Sixth Amendment right to counsel when he waives his Fifth Amendment rights. Wilcher v. State, 697 So. 2d 1123, 1997 Miss. LEXIS 101 (Miss. 1997).

Decision to waive right to counsel does not require appreciably higher level of mental functioning than decision to waive other constitutional rights. Dunn v. State, 693 So. 2d 1333, 1997 Miss. LEXIS 233 (Miss. 1997).

Competence that is required of defendant seeking to waive his right to counsel is competence to waive right, not competence to represent himself. Dunn v. State, 693 So. 2d 1333, 1997 Miss. LEXIS 233 (Miss. 1997).

An accused’s refusal to sign a waiver of rights form does not in and of itself constitute a demand for an attorney. Thorson v. State, 653 So. 2d 876 (Miss. 1994), reh’g denied (Miss. Apr. 20, 1995).

Statements made by a defendant’s sister in the defendant’s presence that she intended to get an attorney were not sufficient to trigger the defendant’s right to counsel during police questioning and to preclude any subsequent waiver on his part where the record was devoid of any evidence that the defendant attempted to adopt, or even understood, the statements made by his sister. Lee v. State, 631 So. 2d 824, 1994 Miss. LEXIS 80 (Miss. 1994).

A waiver of counsel inquiry was not required before permitting a defendant to represent himself at trial where the defendant requested and was provided with the assistance of counsel throughout the entire trial process in the form of a “hybrid representation.” Metcalf v. State, 629 So. 2d 558, 1993 Miss. LEXIS 563 (Miss. 1993).

A defendant’s waiver of his right to counsel and his right to remain silent when he executed a written waiver prior to confessing could not be found to be voluntary where his confession given immediately thereafter was involuntary due to improper collusion by law enforcement interrogators, since the defendant’s waiver of his right and his confession were inextricably bound and were the product of prolonged coercive police interrogation. Abram v. State, 606 So. 2d 1015, 1992 Miss. LEXIS 448 (Miss. 1992), overruled in part, Foster v. State, 961 So. 2d 670, 2007 Miss. LEXIS 315 (Miss. 2007), overruled in part, Holly v. Mississippi, 2011 U.S. App. LEXIS 24853 (5th Cir. Miss. Dec. 13, 2011).

Even if an accused has procured an attorney, the accused may still waive the right to have the lawyer present during any police questioning; nothing in the Sixth Amendment prevents a suspect charged with a crime and represented by counsel from voluntarily choosing, on his or her own, to speak with police in the absence of an attorney. Mettetal v. State, 602 So. 2d 864, 1992 Miss. LEXIS 413 (Miss. 1992).

The evidence was sufficient to support a finding that a defendant had knowingly and voluntarily waived his right to assistance of counsel when he made a statement to the police, even though the defendant testified that he had repeatedly requested an attorney and was not provided with one, where the defendant admitted that he understood his rights, and all of his contentions that he had made repeated requests for counsel were specifically refuted by 3 law enforcement officers. Mettetal v. State, 602 So. 2d 864, 1992 Miss. LEXIS 413 (Miss. 1992).

If a defendant has not asserted his or her Fifth Amendment right to counsel, the fact that the defendant is appointed counsel to protect his or her Sixth Amendment right does not preclude interrogation on unrelated offenses. As long as the defendant is given the Miranda warning and makes a knowing and voluntary waiver, any statements obtained during the interrogation are admissible. Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

It is not the duty of law enforcement officers and prosecutors, nor the function of the courts, to insist that a person accused of a crime actually confer with an attorney before talking about the crime nor is there any prescribed procedure or form to be followed in the waiver of the right to such assistance. Berry v. State, 575 So. 2d 1, 1990 Miss. LEXIS 849 (Miss. 1990), cert. denied, 500 U.S. 928, 111 S. Ct. 2042, 114 L. Ed. 2d 126, 1991 U.S. LEXIS 2673 (U.S. 1991).

A defendant knowingly and intelligently waived the right to counsel, and his subsequent statement was freely and voluntarily given, where the defendant initially invoked his constitutional right to counsel but indicated that he no longer wished to contact an attorney when given the opportunity to call, the defendant then indicated that he was willing to enter into a discussion of the crime, and the defendant was again advised of his Miranda rights, after which he confessed. The defendant “initiated” when he indicated that he no longer wished to telephone his attorneys; one cannot halt an inquiry by first indicating a desire to call an attorney, then declining to do so when offered the opportunity. Berry v. State, 575 So. 2d 1, 1990 Miss. LEXIS 849 (Miss. 1990), cert. denied, 500 U.S. 928, 111 S. Ct. 2042, 114 L. Ed. 2d 126, 1991 U.S. LEXIS 2673 (U.S. 1991).

Criminal suspect who, prior to giving confession, is advised of right to counsel and states that he understands right, who makes no mention of desiring attorney and who acknowledges in written waiver of right to counsel that he has not been promised anything, nor had any threats, pressure or coercion used against him has made voluntary waiver of right to have counsel present during confession. Wiley v. State, 465 So. 2d 318, 1985 Miss. LEXIS 1954 (Miss. 1985).

A writ of error coram nobis was granted and the original judgments against the defendant entered on his pleas of guilty to the crime of burglary were vacated and his case remanded for a new trial where he did not have counsel for his own defense, and had not competently and intelligently waived the right to counsel. Scott v. State, 190 So. 2d 875, 1966 Miss. LEXIS 1412 (Miss. 1966).

109. –Misinformation from counsel, assistance of counsel.

While defendant alleged that counsel advised him that he was eligible for parole, defendant was unable to meet the second prong of the test for ineffective assistance of counsel because defendant was unable to show how this deficiency prejudiced defendant’s case when the defendant entered a guilty plea to the sale of cocaine. Prince v. State, 967 So. 2d 69, 2007 Miss. App. LEXIS 502 (Miss. Ct. App.), cert. dismissed, 966 So. 2d 172, 2007 Miss. LEXIS 581 (Miss. 2007).

Court properly denied defendant’s motion for post-conviction relief after defendant pled guilty to sexual battery; trial counsel did not provide erroneous advice in advising defendant that the 14-year-old victim’s consent was not an issue for the jury to address. Under the plain language of Miss. Code Ann. §97-3-95(1)(c), the State would not have had to address the issue of consent; State would have only had to show that the victim was between the ages of 14 and 16, that defendant was more than 36 months older than the victim, and that defendant had engaged in sexual penetration with the victim. Bates v. State, 879 So. 2d 519, 2004 Miss. App. LEXIS 728 (Miss. Ct. App. 2004).

Defendant’s claim that the assistance received from counsel was ineffective because his attorney had failed to inform him that the sentence would be served without parole and had misinformed him about his eligibility for parole after a certain period of time was time barred; defendant’s claim was required by Miss. Code Ann. §99-39-5(1)(a) to be brought within three years of the guilty plea; the raising of a claim of ineffective assistance of counsel alone was insufficient to overcome the procedural bar where defendant provided as sole evidence his own version of the facts. Austin v. State, 863 So. 2d 59, 2003 Miss. App. LEXIS 995 (Miss. Ct. App. 2003).

Allegation by post-conviction petitioner, who had pleaded guilty to charge of capital murder, that he had received ineffective assistance of counsel on basis that his guilty plea was induced by misrepresentations of his attorney was rebutted by transcript of plea hearing and could be summarily denied without hearing; record indicated that petitioner had remained silent both when given opportunity to inform court of terms of alleged “real plea bargain,” and also when accomplice received shorter sentence. Simpson v. State, 678 So. 2d 712, 1996 Miss. LEXIS 413 (Miss. 1996).

Defendant was entitled to a hearing on his petition for leave to withdraw his guilty plea, on the asserted basis that he had received incorrect advice from counsel regarding the length of his sentence and the terms of his plea bargain. Tiller v. State, 440 So. 2d 1001, 1983 Miss. LEXIS 2981 (Miss. 1983).

110. – Conflicts of interest, assistance of counsel.

Trial counsel was not ineffective per se due to an actual conflict of interest, as there was no actual conflict of interest but only a personality conflict between counsel and his client. Rowsey v. State, 188 So.3d 486, 2015 Miss. LEXIS 573 (Miss. 2015).

Defendant wanted counsel’s assistance on whether to rest his case, an accused had the a right to be heard by himself, counsel, or both, and the trial court erred in assigning counsel to be advisory while at the same time allowing her to withdraw due to a conflict, and the trial court erred again in requiring counsel to remain as advisory counsel once a conflict arose between her duty to the court and her duty to defendant; defendant’s constitutional rights were generally jeopardized. Hill v. State, 134 So.3d 721, 2014 Miss. LEXIS 88 (Miss. 2014).

Defendants were not denied the effective representation of counsel regarding their joint representation because nothing conclusively indicated that defendants had interests that were adverse to each other, or that counsel should have engaged in some course of conduct that would have been adverse to the interests of one or the other. Defendants merely suggested that some of the evidence indicated the possibility of a conflict between the two. Salts v. State, 984 So. 2d 1050, 2008 Miss. App. LEXIS 199 (Miss. Ct. App.), cert. denied, 984 So. 2d 277, 2008 Miss. LEXIS 334 (Miss. 2008).

By dismissing defendant’s former attorney, after defendant gave him counterfeit documents concerning a stolen vehicle for which defendant was being charged, the trial court did not violate defendant’s constitutional right to counsel because, as the attorney was going to be called as a witness in defendant’s subsequent trial, the conflict of interest between defendant and his former attorney required his removal as counsel. There was no evidence that the conflict was manufactured in order to deprive defendant of his former counsel’s services or that he suffered undue prejudice by proceeding with his new counsel. Hayden v. State, 972 So. 2d 525, 2007 Miss. LEXIS 646 (Miss. 2007).

Defendant knowingly waived his right to conflict-free counsel and, further, failed to show that the fact that a single attorney represented defendant and his two co-defendants on charges of assault of a law enforcement officer prejudiced defendant or rendered defendant’s guilty plea involuntary. Blansett v. State, 841 So. 2d 165, 2002 Miss. App. LEXIS 593 (Miss. Ct. App. 2002).

In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest affected his lawyer’s performance. Brown v. State, 798 So. 2d 481, 2001 Miss. LEXIS 196 (Miss. 2001).

There was no merit to the defendant’s claim of ineffective assistance of counsel where the defendant alleged that his attorney was ineffective in that she had a conflict of interest because she was the sister of an attorney working with the district attorney’s office where there was no evidence that defense counsel’s brother was involved in the case in any fashion. Miller v. State, 788 So. 2d 70, 2000 Miss. App. LEXIS 590 (Miss. Ct. App. 2000).

The defendant failed to establish a violation of his right to effective assistance of counsel based on a conflict of interest where he alleged a conflict of interest based solely on the fact that his attorney represented two defendants and failed to show an actual conflict. Witt v. State, 781 So. 2d 135, 2000 Miss. App. LEXIS 377 (Miss. Ct. App. 2000).

There was no conflict of interest and, therefore, no ineffective assistance of counsel occurred where counsel arranged separate pleas for the defendant and a codefendant at separate terms of court, which resulted in two different sentences, since the defendant claimed primary responsibility for the crimes at issue and was also charged with two other counts. Ingram v. State, 774 So. 2d 467, 2000 Miss. App. LEXIS 358 (Miss. Ct. App. 2000).

The defendant failed to show ineffective assistance of counsel based on a conflict of interest arising from the former representation of a potential witness by defense counsel since the potential witness did not testify; therefore, there was no prejudice. Tyler v. State, 2000 Miss. App. LEXIS 188 (Miss. Ct. App. Apr. 25, 2000).

Effective right of counsel encompasses the right to representation by attorney who does not owe conflicting duties to other defendants, and undivided loyalty of defense counsel is essential to the due process guarantee of the Fifth Amendment. Perry v. State, 682 So. 2d 1027, 1996 Miss. LEXIS 572 (Miss. 1996).

There was no actual conflict arising from fact that defense counsel had previously represented government rebuttal witness in unrelated prosecutions, where subject of cross-examination was witness’ prior deals with state to provide testimony in exchange for plea agreements. Perry v. State, 682 So. 2d 1027, 1996 Miss. LEXIS 572 (Miss. 1996).

Defense counsel’s representation was not adversely affected by fact that he had previously represented government rebuttal witness in unrelated prosecutions, where counsel was not “suddenly curtailed” in his cross-examination when subject of prior deals with prosecutors arose but, rather, proceeded onward to question witness in detail about his motivation for prior testimony in another case as well as his motivation for testifying against defendant in the present case. Perry v. State, 682 So. 2d 1027, 1996 Miss. LEXIS 572 (Miss. 1996).

Where no actual conflict of interest is present, defendant must demonstrate prejudice and show reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Perry v. State, 682 So. 2d 1027, 1996 Miss. LEXIS 572 (Miss. 1996).

Defendant was not prejudiced by any adverse performance of defense counsel due to fact that he had previously represented government rebuttal witness in unrelated prosecutions; even assuming that counsel conclusively established that witness’s sole motivation in testifying was to receive a reduced sentence pursuant to agreement with the State, there remained the vast amount of evidence presented during state’s case in chief. Perry v. State, 682 So. 2d 1027, 1996 Miss. LEXIS 572 (Miss. 1996).

Right to effective assistance of counsel includes right to representation by attorney who does not owe conflicting duties to other defendants. Smith v. State, 666 So. 2d 810, 1995 Miss. LEXIS 628 (Miss. 1995).

Actual conflict of interest, violating defendant’s right to effective assistance of counsel, resulted from public defender’s representation of both codefendant during plea negotiations and defendant at trial in prosecution originating from simultaneous double sale of drugs. Smith v. State, 666 So. 2d 810, 1995 Miss. LEXIS 628 (Miss. 1995).

Prejudice from attorney’s conflict of interest is presumed only if defendant demonstrates that counsel actively represented conflicting interests and that actual conflict of interest adversely affected attorney’s performance. Smith v. State, 666 So. 2d 810, 1995 Miss. LEXIS 628 (Miss. 1995).

Prejudice from actual conflict of interest, which existed when public defender provided dual representation to both defendant and codefendant, existed when public defender prematurely terminated cross-examination of codefendant. Smith v. State, 666 So. 2d 810, 1995 Miss. LEXIS 628 (Miss. 1995).

Prosecutor and trial court have responsibility to notify defendant concerning potential conflicts of interest by defense counsel. Smith v. State, 666 So. 2d 810, 1995 Miss. LEXIS 628 (Miss. 1995).

Mere fact that counsel for capital murder defendant shared office space with prosecutor who prosecuted defendant’s preliminary hearing was not sufficient to demonstrate actual conflict of interest causing prejudice to defendant in violation of defendant’s right to counsel. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

In a prosecution for conspiracy to distribute cocaine, a defendant’s constitutional right to the effective assistance of counsel was violated due to an irreparable conflict of interest where the attorney who represented the defendant had also been counsel for the State’s main witness in the trial against the witness for the same offense. Littlejohn v. State, 593 So. 2d 20, 1992 Miss. LEXIS 8 (Miss. 1992).

The right to effective assistance of counsel encompasses 2 broad principals–minimum competence and loyal assistance. The right to conflict free counsel is attendant to the Sixth Amendment right to effective assistance of counsel. It is incumbent upon courts which confront and which are alerted to possible conflicts of interest to take the necessary steps to ascertain whether the conflict warrants separate counsel. Thus, where a defense attorney represented 2 codefendants during the sentencing phase of the judicial proceedings and it could easily have been anticipated that the attorney would argue that the actions of one of the codefendants should not be attributed to the other or that the attorney would opt to not say or do anything in litigation for fear that to do so would characterize one codefendant as being more culpable than the other, the failure of the trial court to disclose to the codefendants the potential dangers of joint representation by counsel laboring under a conflict resulted in a violation of the right to effective assistance of counsel, and therefore a new sentencing hearing was warranted. Armstrong v. State, 573 So. 2d 1329, 1990 Miss. LEXIS 824 (Miss. 1990).

Sixth Amendment test for violation of right to effective assistance of counsel is whether defendant can demonstrate that his attorney actively represented conflicting interest and conflict adversely affected his lawyer’s performance; conflict of interest is present whenever one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to cause of co-defendant whom counsel is also representing. United States v. Holley, 826 F.2d 331, 1987 U.S. App. LEXIS 12093 (5th Cir. Miss. 1987), cert. denied, 485 U.S. 960, 108 S. Ct. 1222, 99 L. Ed. 2d 422, 1988 U.S. LEXIS 1238 (U.S. 1988).

Defendant failed to demonstrate that trial counsel was ineffective due to conflict of interest in representing co-defendants at trial by failing to demonstrate that counsel chose between alternative arguments helpful to one client but harmful to other, where defense was alibi in which all defendants represented by counsel were involved, and attorney told them if they were telling him truth, he had no conflict but if they committed murders he would have conflict. It is incumbent upon defendant to establish actual conflict with specific reference to instances in record which show that counsel’s performance was adversely affected, and defendant failed to do this, although attempting to do so by pointing to prosecution’s closing argument, which stated that there were many unanswered questions in case and one of biggest ones was “why did every single witness choose” same attorney. Stringer v. Scroggy, 675 F. Supp. 356, 1987 U.S. Dist. LEXIS 11203 (S.D. Miss. 1987), aff'd, 862 F.2d 1108, 1988 U.S. App. LEXIS 17949 (5th Cir. Miss. 1988).

Defendant had been unable to present facts, and not mere inferences, to show that appellate counsel had actual conflict of interest which rendered him ineffective where counsel on appeal representing defendant had also been retained to represent co-defendant, who was defendant’s son, at his own trial; appellate counsel testified that he never consciously decided not to raise any issue in defendant’s appeal because he thought it might hurt his son. Stringer v. Scroggy, 675 F. Supp. 356, 1987 U.S. Dist. LEXIS 11203 (S.D. Miss. 1987), aff'd, 862 F.2d 1108, 1988 U.S. App. LEXIS 17949 (5th Cir. Miss. 1988).

There is nothing in the law of this state which prohibits the partner of a county attorney from representing a defendant in a criminal proceeding outside the county where the county attorney serves, and the denial of defendant’s counsel of choice on such grounds was a violation of his Sixth and Fourteenth Amendment rights. Frackman v. Deposit Guaranty Nat'l Bank, 296 So. 2d 695, 1974 Miss. LEXIS 1532 (Miss. 1974).

The fact that the defendant’s wife, indicted as an accessory to the burglaries for which he was indicted, had competent counsel who included him in their conferences with his wife, did not satisfy the mandatory constitutional requirement that one charged with a felony is entitled to be represented by counsel; and this was particularly true where the interests of the defendant and his wife were antagonistic, and it would be impossible for her attorneys to defend him with fidelity. Scott v. State, 190 So. 2d 875, 1966 Miss. LEXIS 1412 (Miss. 1966).

111. – Ineffective counsel generally, assistance of counsel.

Although defendant argued he was entitled to new trials because he received constitutionally ineffective assistance of counsel, the appellate court found defendant received effective assistance. Terrell Patrick Corvette Hopper v. State, 220 So.3d 224, 2017 Miss. App. LEXIS 176 (Miss. Ct. App. 2017), cert. denied, — So.3d —, 2018 Miss. LEXIS 28 (Miss. 2018), cert. denied, — So.3d —, 2018 Miss. LEXIS 29 (Miss. 2018), cert. denied, — So.3d —, 2018 Miss. LEXIS 32 (Miss. 2018).

Circuit court properly convicted defendant of selling more than two, but less than 10, grams of methamphetamine near a church because he forfeited his Fourth Amendment claim where the record neither showed the search was legal or illegal, and the mere failure to file a motion to suppress, in and of itself, could not support defendant’s claim his counsel was constitutionally ineffective. Shinstock v. State, 220 So.3d 967, 2017 Miss. LEXIS 267 (Miss. 2017).

Petitioner could not show that his counsel’s failure to object was deficient or that the failure to object prejudiced him because the State’s argument fell within the wide latitude allowed during closing argument; the State properly limited its argument to the evidence presented and a reasonable deduction to be drawn from it. Corrothers v. State, 255 So.3d 99, 2017 Miss. LEXIS 40 (Miss. 2017).

Petitioner had no claim his counsel was deficient or that he was prejudiced by the instructions given because counsel presented four instructions on weighing mitigation evidence, and the trial court rejected all four. Corrothers v. State, 255 So.3d 99, 2017 Miss. LEXIS 40 (Miss. 2017).

Petitioner could not show his counsel was deficient for failing to investigate mitigating circumstances, and he could not show prejudice, because the potential mitigating evidence would barely have altered the sentencing profile presented to the jury; petitioner’s poor home environment and family history were presented in detail at the sentencing phase. Corrothers v. State, 255 So.3d 99, 2017 Miss. LEXIS 40 (Miss. 2017).

It was clear from the record that defendant’s counsel zealously represented defendant. Thus, defendant’s ineffective-assistance-of-counsel claim was without merit. Springer v. State, 187 So.3d 1050, 2015 Miss. App. LEXIS 589 (Miss. Ct. App. 2015).

Regarding defendant’s claim that his counsel failed to assert a meritorious double jeopardy claim, the record was not sufficient to address this particular claim on direct appeal. Shinn v. State, 174 So.3d 961, 2015 Miss. App. LEXIS 479 (Miss. Ct. App. 2015).

Regarding defendant’s claim that his counsel was ineffective because counsel failed to object to hearsay testimony from a police detective, defendant failed to meet his burden of proving that counsel was ineffective in a constitutional sense, or that the alleged omissions were so prejudicial as to deprive him of a fair trial. Shinn v. State, 174 So.3d 961, 2015 Miss. App. LEXIS 479 (Miss. Ct. App. 2015).

Because there was no logical reason to believe that a jury would have convicted defendant of petit larceny but not motor vehicle theft, defendant’s counsel’s decision not to request such an instruction was not evidence of incompetence. Shinn v. State, 174 So.3d 961, 2015 Miss. App. LEXIS 479 (Miss. Ct. App. 2015).

In appellant’s capital murder case, counsel was not ineffective for failing to adequately investigate and present the motion to transfer venue because counsel filed a motion to change venue and supported that motion with numerous affidavits and all known relevant press documentation. The trial court held a hearing and determined that a fair trial could be held in Union County. Howell v. State, 989 So. 2d 372, 2008 Miss. LEXIS 419 (Miss. 2008).

Counsel was not ineffective in failing to inform petitioner of the charges against him because a review of the statements of the children contained in the presentence report and their testimony at the sentencing hearing revealed no inconsistency. The specifics of the crimes were spelled out in the petition seeking approval to enter a guilty plea, and therefore, any claim that petitioner did not know he was pleading guilty to “photographing a child in sexually explicit conduct” failed. Leavitt v. State, 982 So. 2d 981, 2008 Miss. App. LEXIS 73 (Miss. Ct. App. 2008).

Counsel was not ineffective in failing to investigate because petitioner failed to present any competent evidence to establish the last time he took pictures of the girls, the date of his heart surgery, or any facts that would lend credence to his claims of innocence. Additionally, the record contained none. Leavitt v. State, 982 So. 2d 981, 2008 Miss. App. LEXIS 73 (Miss. Ct. App. 2008).

Counsel was not ineffective in failing to request a competency hearing because a report filed by the Mississippi State Hospital stated that it was an expert’s opinion that petitioner was not suffering from any major mental disorder at the time of the alleged offenses such that he would not have known the nature, quality, and wrongfulness of his alleged acts at those times. Leavitt v. State, 982 So. 2d 981, 2008 Miss. App. LEXIS 73 (Miss. Ct. App. 2008).

Counsel was not ineffective in failing to challenge the indictment because any error resulting from exclusion of the numerical marker of the specific statute charged was harmless. The indictment put petitioner on notice of the charges against him, and any reference to an incorrect sentence was mere surplusage. Leavitt v. State, 982 So. 2d 981, 2008 Miss. App. LEXIS 73 (Miss. Ct. App. 2008).

Defendant did not show ineffective assistance of counsel where, even if defense counsel had successfully moved to have the charges severed, given the strength of the State’s case against defendant, he could not reasonably have expected a different result on the manufacture-of-marijuana charge; defendant’s counsel performed a thorough cross examination of the witnesses called by the State; and defendant showed no prejudice in having the trial judge preside over the case. Williams v. State, 971 So. 2d 581, 2007 Miss. LEXIS 571 (Miss. 2007).

While the defendant stated that his right to a speedy trial under Miss. Code Ann. §99-17-1 was violated and that counsel was ineffective in failing to request a speedy trial, defendant however provided no information as to whether good cause was shown for the delay or whether the trial court granted any continuances; thus, he failed to present to any viable argument or any authority in support of his argument that his trial counsel was defective for failing to file a motion for a speedy trial, and therefore his counsel was not ineffective. Golden v. State, 968 So. 2d 378, 2007 Miss. LEXIS 530 (Miss. 2007), cert. dismissed, 977 So. 2d 343, 2008 Miss. LEXIS 111 (Miss. 2008).

Defendant failed to support his allegations of ineffective assistance of counsel and mainly used the issue to reassert his innocence; therefore, the issue was without merit. Turner v. State, 961 So. 2d 734, 2007 Miss. App. LEXIS 200 (Miss. Ct. App.), cert. dismissed, 968 So. 2d 948, 2007 Miss. LEXIS 627 (Miss. 2007).

Denial of the inmate’s petition for post-conviction relief pursuant to Miss. Code Ann. §99-39-1 et seq. was appropriate because he failed to show that his attorneys were ineffective in part for requesting that venue be transferred; any prejudice claimed by the inmate was purely hypothetical and was insufficient to demonstrate any ineffectiveness. Turner v. State, 953 So. 2d 1063, 2007 Miss. LEXIS 2 (Miss. 2007).

Defendant’s trial counsel was not ineffective where the indictment clearly informed defendant of the elements of the crime with which he was charged and there was nothing indicating that trial counsel’s decision not to interview defense witnesses was not a valid legal strategy; defendant acknowledged that the trial judge advised him she could impose a minimum sentence of two years at his plea colloquy. Brown v. State, 944 So. 2d 103, 2006 Miss. App. LEXIS 420 (Miss. Ct. App.), cert. denied, 946 So. 2d 368, 2006 Miss. LEXIS 732 (Miss. 2006).

Denial of the inmate’s petition for post-conviction relief was appropriate because he failed to prove that his counsel was ineffective. The inmate entered an open plea and admitted to the judge that he took full responsibility for the crime he committed; additionally, he was sentenced within the guidelines. Hoskins v. State, 934 So. 2d 326, 2006 Miss. App. LEXIS 186 (Miss. Ct. App. 2006).

Defendant did not show ineffective assistance of counsel where defendant failed to point out anything counsel could have done other than proceed to trial on a theory that a witness may have committed the crimes because he turned in some of the items taken in the robbery; indigent defendants were not entitled to appointed counsel of their choice. Anderson v. State, 943 So. 2d 102, 2006 Miss. App. LEXIS 858 (Miss. Ct. App. 2006).

Dismissal of the inmate’s motion for post-conviction relief without a hearing was appropriate because nothing indicated that his counsel was deficient in any way; in fact, the record contained numerous motions filed by counsel in an effort to aid the inmate’s defense, and his trial counsel also negotiated to get the original charge of capital murder reduced to murder. Moss v. State, 940 So. 2d 949, 2006 Miss. App. LEXIS 536 (Miss. Ct. App. 2006).

Denial of the inmate’s petition for post-conviction relief was appropriate because his counsel were not ineffective; after appointment, counsel began their defense with a vigorous volley of motions and his attorneys were able to secure a plea bargain that relieved the him of a possible death sentence. Harris v. State, 944 So. 2d 900, 2006 Miss. App. LEXIS 567 (Miss. Ct. App. 2006).

In a capital murder case, an inmate’s ineffective assistance of counsel claims were either procedurally barred, or, even if not procedurally barred, were without merit, under the following circumstances: (1) the inmate’s counsel did not fail to adequately develop evidence to impeach a witness because counsel conducted a thorough cross-examination of the witness, and pursued a line of questioning attempting to call into doubt whether the witness could really have overheard a conversation in which the inmate stated that he sold the guns on the street; (2) counsel’s representation of another witness in a prior action that was completely unrelated to the inmate’s case was not a conflict of interest, and counsel conducted a full cross-examination of the witness; (3) counsel produced several witnesses placing the inmate at a nightclub on the night of the murders; (4) counsel did present a case in mitigation for the jury to consider; (5) counsel’s closing argument was coherent and not a poor strategic choice; and (6) the prosecutor’s arguments using scriptural, religious, or biblical references were proper because the prosecutor was responding to scriptural or religious arguments made by defense counsel. Manning v. State, 929 So. 2d 885, 2006 Miss. LEXIS 109 (Miss. 2006).

Court rejected defendant’s claim that he received ineffective assistance of counsel in violation of the Sixth Amendment because defendant’s counsel did file a motion to exclude evidence admitted as the result of an allegedly illegal search, and a suppression hearing was held as a result of that motion; therefore, defendant failed to meet the two-prong Strickland test that required defendant to show that his counsel’s performance was deficient and that he was prejudiced by the deficiency. Passman v. State, 937 So. 2d 17, 2006 Miss. App. LEXIS 89 (Miss. Ct. App.), cert. denied, 936 So. 2d 367, 2006 Miss. LEXIS 482 (Miss. 2006), cert. denied, 549 U.S. 1324, 127 S. Ct. 1914, 167 L. Ed. 2d 570, 2007 U.S. LEXIS 3842 (U.S. 2007).

Inmate failed to establish that he was deprived of effective assistance of counsel due to his counsel’s failure to pursue an insanity defense, to have him evaluated or to obtain his records from the United States Army showing he was discharged for reasons related to his mental health, as he did not offer evidence in support of his claims, other than unsubstantiated allegations, sufficient to overcome the strong presumption that his attorney’s conduct fell within the wide range of reasonable professional assistance. Thomas v. State, 930 So. 2d 1264, 2005 Miss. App. LEXIS 993 (Miss. Ct. App. 2005).

Denial of the inmate’s petition for post-conviction relief was proper where his counsel was not ineffective, in part because it was determined that the inmate failed to demonstrate prejudice regarding the State’s scriptural references or parole argument closing argument of the sentencing phase of his trial. Thus, his counsel was not deficient for failing to object. Manning v. State, 2005 Miss. LEXIS 464 (Miss. Aug. 4, 2005), op. withdrawn, sub. op., 929 So. 2d 885, 2006 Miss. LEXIS 109 (Miss. 2006).

Denial of the inmate’s petition for post-conviction relief after he had pled guilty to manslaughter was proper because counsel was not ineffective since the inmate had failed to demonstrate that his attorney’s advice was not well within the range of competence required to attorneys in criminal cases. Hardiman v. State, 904 So. 2d 1225, 2005 Miss. App. LEXIS 394 (Miss. Ct. App. 2005).

Defendant failed to satisfy his burden of overcoming the strong presumption that an attorney’s conduct fell within the wide range of professional assistance where, based on the detailed colloquy between defendant and the trial judge, it was clear that defendant personally understood the nature and consequences of his guilty plea. Beene v. State, 910 So. 2d 1152, 2005 Miss. App. LEXIS 229 (Miss. Ct. App. 2005).

Defendant’s claim of ineffective assistance of counsel at trial failed where he did not reveal the nature of the prejudice that resulted from any of the errors he alleged by his defense counsel during his trial for possession of cocaine. Defendant was not guaranteed a “perfect” trial. Magee v. State, 912 So. 2d 1044, 2005 Miss. App. LEXIS 252 (Miss. Ct. App. 2005).

In a capital murder case, defendant did not receive ineffective assistance of counsel because of counsel’s failure to use all of the peremptory challenges available since each juror concluded that they could have been fair and impartial if selected to sit on the jury; defendant failed to show that any prejudice resulted from the failure to strike the jurors. Le v. State, 913 So. 2d 913, 2005 Miss. LEXIS 151 (Miss.), cert. denied, 546 U.S. 1004, 126 S. Ct. 622, 163 L. Ed. 2d 508, 2005 U.S. LEXIS 8254 (U.S. 2005).

Inmate’s trial attorneys were not ineffective because (1) although some of the State’s race-neutral reasons for striking jurors were a close call, the trial court allowed the challenges to stand, and the inmate did not show that a different outcome would have resulted had the Batson objections been sustained; (2) his counsel filed numerous pre-trial motions, cross-examined nine out of eleven prosecution witnesses, ultimately did not call a defense witness because he would have corroborated the State’s witnesses met with the inmate on numerous occasions and even discussed a plea offer from the State that the inmate rejected; (3) the inmate’s accusation that trial counsel had failed to properly investigate was merely an unfounded allegation because the inmate supplied little or nothing of what an effective attorney performing a proper investigation would or should have found by way of mitigating testimony; and (4) trial counsel did not err in failing to raise the issue of the inmate’s competency because the inmate presented no evidence that he was currently incompetent or incompetent at the time of his trial. Knox v. State, 901 So. 2d 1257, 2005 Miss. LEXIS 190 (Miss.), cert. denied, 546 U.S. 1063, 126 S. Ct. 797, 163 L. Ed. 2d 630, 2005 U.S. LEXIS 9080 (U.S. 2005).

Defendant’s petition for post-conviction relief from his conviction of sexual battery was properly denied because defendant failed to establish by any convincing evidence that his attorney’s performance was deficient where prior to entering his guilty plea, defendant stated that his trial counsel had discussed the charge against him and all possible defenses and that he was satisfied with his attorney’s advice. Furthermore, defendant stated that he understood that his sentence could range between zero and thirty years and that he had entered a guilty plea because he had committed the crime charged against him. Myers v. State, 897 So. 2d 198, 2004 Miss. App. LEXIS 1185 (Miss. Ct. App. 2004).

Defendant’s guilty plea petitions for grand larceny and possession of cocaine indicated that defendant was informed of the possible sentence that defendant could receive and that defendant was satisfied with counsel’s representation; hence, there was no merit to defendant’s claim of ineffective assistance of counsel and the court properly denied defendant’s petition for post-conviction relief. Dockens v. State, 879 So. 2d 1072, 2004 Miss. App. LEXIS 770 (Miss. Ct. App. 2004).

Counsel was not ineffective because he did direct the jury’s attention to exculpatory portions of defendant’s statement because (1) defense counsel asserted that co-defendant was the person responsible for the murder and that defendant was not present, and (2) counsel used good parts of defendant’s bad statement that he was involved in the robbery and capital murder of the victim. Branch v. State, 882 So. 2d 36, 2004 Miss. LEXIS 586 (Miss. 2004), cert. denied, 544 U.S. 907, 125 S. Ct. 1595, 161 L. Ed. 2d 282, 2005 U.S. LEXIS 2289 (U.S. 2005).

There was no need to challenge the authentication of the bag and its contents, which included the victim’s gun, money, food stamps, and coin wrappers, because the bag was found in co-defendant’s yard and only served to reinforce the defense’s theory that co-defendant, not defendant, killed the victim. Therefore, one of defendant’s attorney’s was not ineffective for failing to withdraw from the case as she was not an authenticating witness. Branch v. State, 882 So. 2d 36, 2004 Miss. LEXIS 586 (Miss. 2004), cert. denied, 544 U.S. 907, 125 S. Ct. 1595, 161 L. Ed. 2d 282, 2005 U.S. LEXIS 2289 (U.S. 2005).

Although defendant argued that there was no meaningful adversarial testing of prosecutor’s case by defense counsel, defendant was represented by competent and zealous counsel and trial counsel challenged the State’s evidence at all stages of the case by filing and arguing numerous pre-trial motions, throughout the trial itself, throughout the sentencing hearing, and through post-trial motions; thus, defendant’s trial counsel was not ineffective. Branch v. State, 882 So. 2d 36, 2004 Miss. LEXIS 586 (Miss. 2004), cert. denied, 544 U.S. 907, 125 S. Ct. 1595, 161 L. Ed. 2d 282, 2005 U.S. LEXIS 2289 (U.S. 2005).

Trial counsel filed several pre-hearing motions, put on several witnesses in each phase of the trial, and zealously represented their client; the witnesses willing to come forward after the trial would have constituted redundant character testimony. Thus, trial counsel was not ineffective for failing to investigate defendant’s case and potential witnesses. Branch v. State, 882 So. 2d 36, 2004 Miss. LEXIS 586 (Miss. 2004), cert. denied, 544 U.S. 907, 125 S. Ct. 1595, 161 L. Ed. 2d 282, 2005 U.S. LEXIS 2289 (U.S. 2005).

Counsel’s performance in not moving for a change of venue was not deficient where all of the jurors stated that they could be fair and impartial and where the record revealed overwhelming evidence of a prisoner’s guilt. Bishop v. State, 882 So. 2d 135, 2004 Miss. LEXIS 773 (Miss. 2004), cert. denied, 543 U.S. 1189, 125 S. Ct. 1401, 161 L. Ed. 2d 194, 2005 U.S. LEXIS 2123 (U.S. 2005).

Defendant’s counsel was not ineffective under U.S. Const. amend. VI in defendant’s criminal trial for capital murder, where: counsel did not investigate mitigation factors after defendant was found guilty, as defendant had explicitly instructed his counsel not to fight the death penalty because defendant preferred that over life imprisonment; failure to submit physical evidence for DNA analysis was a trial strategy; and counsel’s performance with respect to a change of venue and a continuance were proper in the circumstances. Grayson v. State, 879 So. 2d 1008, 2004 Miss. LEXIS 721 (Miss. 2004), cert. denied, 543 U.S. 1155, 125 S. Ct. 1301, 161 L. Ed. 2d 122, 2005 U.S. LEXIS 1593 (U.S. 2005).

Inmate’s attorney was not ineffective, in connection with the inmate’s capital murder trial, for failing to impeach a material witness with an alleged prior inconsistent statement concerning the inmate’s height because (1) there was little room for impeachment in the relative heights of the inmate, co-defendant, and the witness, and (2) it was a matter of trial strategy not to ask the witness additional questions on cross-examination. Smith v. State, 877 So. 2d 369, 2004 Miss. LEXIS 547 (Miss. 2004).

Inmate’s attorney was not ineffective, in connection with the inmate’s capital murder trial, for not objecting to the presence of a county sheriff during trial proceedings because (1) the inmate cited no authority to support the claim that the sheriff was able to tailor the sheriff’s testimony after hearing other witnesses and (2) there was no abuse of discretion in the trial court’s decision to permit the sheriff to remain in the courtroom. Smith v. State, 877 So. 2d 369, 2004 Miss. LEXIS 547 (Miss. 2004).

Court found no ineffective assistance of counsel in the failure to object to an inmate being shackled at trial where no juror had stated that the shackling affected the conviction or sentence in any respect. Smith v. State, 877 So. 2d 369, 2004 Miss. LEXIS 547 (Miss. 2004).

Inmate’s attorneys were not ineffective, in connection with the inmate’s capital murder trial, for not objecting to the trial judge’s decision to excuse potential jurors after unrecorded bench conferences because even though the bench conferences should have been recorded, and even if the attorneys were negligent in failing to see that the conferences were recorded, there was no showing of prejudice to the inmate and the reasons for the excusal of the jurors were clearly in the record. Smith v. State, 877 So. 2d 369, 2004 Miss. LEXIS 547 (Miss. 2004).

Defendant was not entitled to a free transcript in a post-conviction relief setting because his post-conviction motion could not withstand summary dismissal under Miss. Code Ann. §99-39-11(2); defendant did not demonstrate ineffective assistance of counsel where he did not allege with any degree of specificity what constituted the mitigating evidence or the manner in which his counsel coerced him, and such naked allegations did not supply the “specificity and detail” required to establish a prima facie showing. McCray v. State, 869 So. 2d 442, 2004 Miss. App. LEXIS 247 (Miss. Ct. App. 2004).

Defendant did not prove ineffective assistance of counsel where the strategy of defendant’s counsel was to avoid incarceration, and defendant’s attorney negotiated a plea bargain for defendant and she received a suspended sentence, a monetary fine and probation; there was no evidence that a sentence pursuant to the non-adjudication laws was a condition to which the prosecution would have agreed or the trial judge would have accepted, and the record indicated that defendant chose to avoid the risk of such a sentence and sought regular probation instead. Smith v. State, 869 So. 2d 425, 2004 Miss. App. LEXIS 251 (Miss. Ct. App. 2004).

Defendant failed to meet his burden of proof regarding the allegation of ineffective assistance of counsel where his assertion that his attorney put up “no defense” during closing arguments other than to say “my client says he’s innocent” was completely false; counsel said more in closing argument than defendant asserted he did, and defendant did not show that counsel’s performance was deficient. Armstead v. State, 869 So. 2d 1052, 2004 Miss. App. LEXIS 68 (Miss. Ct. App. 2004).

Where the evidence showed that defendant’s trial counsel extensively cross-examined a victim and a detective in a sexual assault case, and voiced objections to evidence when appropriate, there was nothing to support an ineffective assistance of counsel claim. McCoy v. State, 878 So. 2d 167, 2004 Miss. App. LEXIS 53 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 910 (Miss. 2004).

In a burglary case, defendant failed to establish ineffective assistance of counsel where there was nothing to show that defense counsel was unprepared for the trial, defendant was allowed to participate in jury selection, and defense counsel effectively pointed out discrepancies in trial testimony; moreover, the failure to call defendant as a witness and the decision to strike jurors were not grounds for an ineffective assistance of counsel claim. Phinisee v. State, 864 So. 2d 988, 2004 Miss. App. LEXIS 19 (Miss. Ct. App. 2004).

Where the inmate claimed in a post-conviction petition to have been denied effective assistance of counsel under Miss. Const. Art. III, § 26 and U.S. Const. Amend. VI due to defense counsel’s failure to request and file complete discovery and to meet more than once with the inmate, the claim failed, as the inmate did not argue that this had resulted in prejudice. Battaya v. State, 861 So. 2d 364, 2003 Miss. App. LEXIS 1201 (Miss. Ct. App. 2003).

Defense counsel was not ineffective at trial because (1) counsel was not ineffective for raising a Batson challenge because there was no viable Batson challenge; (2) counsel pursued a coherent defense strategy; (3) counsel was not ineffective for failing to move to have the capital murder charge reduced to manslaughter; and (4) counsel was not ineffective for failing to request lesser-included offense or lesser-offense instructions on murder or manslaughter. Powers v. State, 883 So. 2d 20, 2003 Miss. LEXIS 850 (Miss. 2003), cert. denied, 543 U.S. 1155, 125 S. Ct. 1297, 161 L. Ed. 2d 121, 2005 U.S. LEXIS 1584 (U.S. 2005).

Because defendant was unable to show that counsel’s performance in a murder trial was so deficient and prejudicial as to warrant a new trial, reversal of a murder conviction was not required. Schuck v. State, 865 So. 2d 1111, 2003 Miss. LEXIS 753 (Miss. 2003).

In a case where defendant was convicted of murder for the shooting death of his wife, counsel was not ineffective regarding venue because defendant presented no evidence of alleged pretrial publicity, regarding the admission of a revolver, regarding closing argument, or regarding jury instructions because defendant did not show the outcome of the trial would have been different if an instruction on his suicide theory had been given to the jury. Jones v. State, 857 So. 2d 740, 2003 Miss. LEXIS 554 (Miss. 2003).

In a capital murder case, a review of the record, the briefs, and the arguments showed that there were no individual errors that required reversal and that there was no aggregate collection of minor errors that would, as a whole, mandate a reversal of either the inmate’s convictions or sentences; thus, the failure by the inmate’s attorneys to present issues at the trial or appellate level that the inmate now presented to the Supreme Court in his post-conviction application was not deficient and could not satisfy the first prong of the Strickland test. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

In a capital murder case, the inmate’s counsel were not ineffective for failing to move for recusal of the judge under Miss. Code of Jud. Conduct Canon 3 because the judge’s decision to disallow introduction of the sheriff’s conviction for impeachment purposes was proper and the judge’s comments did not evidence partiality. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

In a capital murder case, the inmate’s counsel were not ineffective for failing to seek a continuance in order to better prepare because there was no indication from the record that the inmate’s attorneys were in need of additional time or that their failure to obtain a continuance was deficient; also, the inmate failed to demonstrate how the result of his sentencing trial would have been different had his attorneys obtained a continuance. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

In a capital murder case, the inmate’s counsel were not ineffective for failing to protect the inmate’s Fifth Amendment right against self-incrimination and Sixth Amendment rights to counsel and due process when his attorneys allowed him to be interviewed by the State’s psychological and psychiatric experts because the inmate answered the doctors’ questions with full knowledge of his rights. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

In a capital murder case, the inmate’s counsel were not ineffective for failing to move for recusal of the judge under Miss. Code of Jud. Conduct Canon 3 because the judge’s decision to disallow the sheriff’s conviction to be introduced for impeachment purposes was proper and the judge’s comments did not evidence partiality. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

In a capital murder case, the inmate’s counsel were not ineffective for failing (1) to object to the reintroduction of evidence from the guilt phase because the evidence was admissible; (2) to elicit testimony from the inmate’s mother that the sheriff and deputy were alone in the inmate’s room during their search; or (3) to obtain DNA evidence that could not procedurally be introduced. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

Although all of petitioner death row inmate’s arguments were procedurally barred either by res judicata or for failure to raise the arguments earlier and no intervening case law exempted petitioner from the procedural bar, the court also reviewed petitioner’s arguments on the merits; it reiterated its earlier holdings that there were no constitutional deficiencies in the Mississippi murder and death penalty statutes, including those relating to death resulting from child abuse as capital murder, and that none of the alleged deficiencies of defense counsel could have affected petitioner’s outcome. Jackson v. State, 860 So. 2d 653, 2003 Miss. LEXIS 355 (Miss. 2003).

In a burglary trial, defendant did not establish ineffective assistance of counsel because there was no evidence to show that defendant was deprived of a fair trial, and testimony elicited about the use of a stolen car was clearly within the ambit of trial strategy; further, counsel’s failure to pursue a post-trial hearing did not amount to ineffective assistance of counsel because there was no new and material evidence. Cheeks v. State, 843 So. 2d 87, 2003 Miss. App. LEXIS 138 (Miss. Ct. App. 2003).

In a prosecution of defendant for the unlawful sale of cocaine, defendant’s claims of ineffective assistance of counsel patently failed the first part of the test for claims of ineffective assistance of counsel, because they did not demonstrate a defective performance, much less any prejudice that could arise from such a performance. Martin v. State, 832 So. 2d 611, 2002 Miss. App. LEXIS 854 (Miss. Ct. App. 2002).

In a post-conviction relief case, because appellant’s trial counsel’s failure to object to separate indictments was wholly reasonable and because appellant suffered no prejudice, appellant failed to demonstrate ineffective assistance of counsel. Brooks v. State, 832 So. 2d 607, 2002 Miss. App. LEXIS 855 (Miss. Ct. App. 2002).

It is inappropriate for an attorney who represents a criminal defendant at trial to represent that same defendant on appeal where the attorney intends to raise an ineffective assistance of counsel claim in that appeal. Hill v. State, 749 So. 2d 1143, 1999 Miss. App. LEXIS 505 (Miss. Ct. App. 1999).

The defendant was entitled to leave to proceed on his claim that his counsel was ineffective when his attorney failed to explain an offered plea bargain. Davis v. State, 743 So. 2d 326, 1999 Miss. LEXIS 224 (Miss. 1999).

Anyone claiming ineffective assistance of counsel has the burden of proving, not only that counsel’s performance was deficient, but also that he was prejudiced thereby, and that there is a reasonable probability that but for his attorney’s errors, he would have received a different result in the trial court. Pearson v. State, 740 So. 2d 346, 1999 Miss. App. LEXIS 179 (Miss. Ct. App. 1999).

The defendant failed to prove that his attorney’s performance fell outside the broad spectrum of reasonable professional assistance where the defendant’s decision not to testify at trial was a reasonable trial strategy because the identification by the victim and his audio taped confession were very compelling and his attorney tried to discredit the victim’s testimony by establishing inconsistencies in her prior statements to the police and her trial testimony. Smith v. State, 737 So. 2d 377, 1998 Miss. App. LEXIS 968 (Miss. Ct. App. 1998).

The defendant was not deprived of effective assistance of counsel when his counsel’s paralegal/investigator was hit by a car on the second day of trial, especially as counsel stated that they could continue without the paralegal/investigator. Finley v. State, 725 So. 2d 226, 1998 Miss. LEXIS 615 (Miss. 1998).

On claim of ineffective assistance of counsel, court’s scrutiny of counsel’s performance is highly deferential, and court must make every effort to eliminate distorting effects of hindsight, to reconstruct circumstances of counsel’s challenged conduct, and to evaluate conduct from counsel’s perspective at the time. Pitts v. Anderson, 122 F.3d 275, 1997 U.S. App. LEXIS 25289 (5th Cir. Miss. 1997).

Trial counsel’s failure in capital murder prosecution to request funds for blood splatter expert to render opinion as to whether person who wore jeans actually fired fatal shot did not constitute ineffective assistance, where in his argument defendant appeared to assume that he was wearing jeans in question during shooting whereas throughout trial defendant argued that jeans were not his and that he had not worn them day of shooting. Chase v. State, 699 So. 2d 521, 1997 Miss. LEXIS 320 (Miss. 1997).

Adversarial process protected by Sixth Amendment requires that accused have counsel acting in the role of an advocate, and the right to effective assistance of counsel is the right of accused to require that prosecution’s case survive the crucible of meaningful adversarial testing. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

A Louisiana attorney’s failure to comply with court rules concerning appearances by foreign attorneys did not, per se, create ineffective assistance of counsel. Hubbard v. State, 628 So. 2d 1386, 1993 Miss. LEXIS 570 (Miss. 1993).

It is not per se professionally unreasonable for an attorney to allow a client to talk to the police and give a statement; where the evidence is otherwise overwhelming, confession may be a significant step toward prompt disposition of the case and mitigation of sentence. Thus, a defendant was not denied effective assistance of counsel on the ground that his attorney advised him to talk to the police, even though the attorney advised the defendant by telephone and did not go to the police station or further assist the defendant, where it appeared that the attorney “brought to bear independent scrutiny and judgment” before advising the defendant, and the evidence against the defendant was overwhelming. Riddle v. State, 580 So. 2d 1195, 1991 Miss. LEXIS 301 (Miss. 1991).

Ineffectiveness of counsel should not be excused simply because counsel has been privately retained. Therefore, that portion of Bennett v. State 293 So. 2d 1 (Miss. 1974), and any other case, which attempts to draw a relevant distinction between court-appointed and retained counsel where a defendant’s right to appeal and effective assistance of counsel is concerned would be expressly overruled. Triplett v. State, 579 So. 2d 555, 1991 Miss. LEXIS 251 (Miss. 1991).

A defense attorney’s failure to object when a prosecution witness, who was a nurse, was sent into the jury room to attend to a juror who had become ill, did not constitute ineffective assistance of counsel where no allegation or facts were presented as to how the attorney’s failure to object resulted in any significant prejudice to the defendant at his trial. Jordan v. State, 577 So. 2d 368, 1990 Miss. LEXIS 785 (Miss. 1990).

A trial judge’s failure to recess and adjourn at reasonable times did not deny the defendant the effective assistance of counsel where the record failed to reveal any evidence of old age, illness, fatigue or exhaustion that affected the defense counsel’s performance. Lanier v. State, 533 So. 2d 473, 1988 Miss. LEXIS 523 (Miss. 1988).

Although §99-15-17 allows for the appointment of 2 attorneys in capital cases, a defense counsel’s withdrawal of his motion for the appointment of additional counsel did not constitute ineffective assistance of counsel where the defense counsel withdrew the motion because he had successfully developed the case and the case was not so complex that one attorney could not provide a legally sufficient defense. Marks v. State, 532 So. 2d 976, 1988 Miss. LEXIS 425 (Miss. 1988).

A defense counsel’s heavy case load and limited resources are, absent specific instances of error, wholly insufficient in themselves to reverse a conviction and sentence on the ground of ineffective assistance of counsel. Cabello v. State, 524 So. 2d 313, 1988 Miss. LEXIS 92 (Miss. 1988).

Counsel was not ineffective for failing to move for change of venue before guilt phase of trial because defense counsel is under no duty to make such motion, and thus this would fall into realm of trial strategy. Neither newspaper articles, nor anything else, indicated that, absent change of venue, defendant would lose right to fair trial. Wiley v. State, 517 So. 2d 1373, 1987 Miss. LEXIS 2915 (Miss. 1987), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 610, 1988 U.S. LEXIS 2458 (U.S. 1988).

Argument that counsel was ineffective based on opening statement conceding to jury that his client was guilty of crime charged in indictment was rejected because it may have been trial strategy. Candor at guilt phase may help defendant in sentencing phase because attorney who, while sincerely trying to help his client, at same time is open and honest with jury, is more likely to receive sympathetic and open ear in his other arguments. Counsel also argued crime was not capital murder and jurors must therefore return verdict of not guilty. Wiley v. State, 517 So. 2d 1373, 1987 Miss. LEXIS 2915 (Miss. 1987), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 610, 1988 U.S. LEXIS 2458 (U.S. 1988).

Argument that trial counsel did not have requisite legal experience to properly try criminal case was rejected as basis for claim of ineffective assistance of counsel where trial counsel had 2 1/2 years experience and had tried 5 criminal cases, none of which were capital cases, at time of first trial of defendant. Level of criminal trial experience is one factor to be considered in determining whether there was effective assistance of counsel. Wiley v. State, 517 So. 2d 1373, 1987 Miss. LEXIS 2915 (Miss. 1987), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 610, 1988 U.S. LEXIS 2458 (U.S. 1988).

Counsel’s failure to obtain services of forensic pathologist was not sufficient to constitute ineffective assistance of counsel where cause of death was important issue at trial because (1) there is no law requiring employment of forensic pathologist as prerequisite to defense counsel being considered constitutionally effective and (2) as practical matter, defense counsel did in fact consult with pathologist and discuss reports of prosecution’s pathologist and was advised that pathologist saw nothing which would be of any benefit. Merritt v. State, 517 So. 2d 517, 1987 Miss. LEXIS 2875 (Miss. 1987).

Refusal of trial court to grant recess requested by criminal defendant, in case in which jury retires to deliberate at 9:30 p.m. and returns with guilty verdict at 11:03 p.m., does not deprive defendant of effective assistance of counsel through exhaustion where attorney for defendant declares himself fit and able and only expresses concern for jury when making motion for recess. Fairley v. State, 483 So. 2d 345, 1986 Miss. LEXIS 2398 (Miss. 1986).

Defendant convicted of capital murder is not entitled to reversal on basis of refusal of trial court to appoint experienced trial counsel where defendant is unable to point to specific lapses by trial counsel. Johnson v. State, 476 So. 2d 1195, 1985 Miss. LEXIS 2257 (Miss. 1985).

Defendant, who was convicted of manslaughter after a one-day trial that lasted until almost 11:00 P.M., despite defense counsel’s repeated motions for a recess, was denied the effective assistance of counsel, particularly in light of the fact that the aged defense attorney, who had prepared and was selected prior to the trial to making the closing argument, read the state’s requested instruction on murder to the jury four successive times and was immediately thereafter taken to a hospital appearing to be in shock. Thornton v. State, 369 So. 2d 505, 1979 Miss. LEXIS 2260 (Miss. 1979).

112. – Tests of ineffectiveness of counsel, assistance of counsel.

Nothing in the record affirmatively showed constitutional ineffectiveness and defendant failed to show prejudice; thus, defendant failed to meet his Strickland burden. Givens v. State, 967 So. 2d 1, 2007 Miss. LEXIS 494 (Miss. 2007).

Since the indictment was not defective, counsel’s decision not to challenge it could not amount to ineffective assistance of counsel, as challenging it would not have changed the result of the proceeding; defendant failed to present any evidence that would prove ineffective assistance of counsel. Mosley v. State, 941 So. 2d 877, 2006 Miss. App. LEXIS 811 (Miss. Ct. App. 2006).

Defendant failed to meet the burden required by Strickland where the circuit court judge found defendant’s counsel’s testimony regarding his representation of defendant to be more credible than defendant’s testimony. Hubanks v. State, 952 So. 2d 254, 2006 Miss. App. LEXIS 544 (Miss. Ct. App. 2006), cert. denied, 951 So. 2d 563, 2007 Miss. LEXIS 171 (Miss. 2007).

Appellate court rejected an inmate’s claims of ineffective assistance of counsel because the inmate made only conclusory allegations, and all of evidence indicated that the inmate’s counsel acted capably. Berry v. State, 924 So. 2d 624, 2006 Miss. App. LEXIS 179 (Miss. Ct. App. 2006).

Although the counsel who represented the inmate had previously prosecuted him on similar charges, the inmate failed to establish that he was deprived of effective assistance of counsel because the inmate did not prove prejudice. Dobbs v. State, 932 So. 2d 878, 2006 Miss. App. LEXIS 153 (Miss. Ct. App. 2006).

Inmate was not able to establish that his attorney rendered ineffective assistance of counsel prior to entering a guilty plea as his attorney was successful in getting other felony charges dismissed, and the inmate stated at the plea hearing that he was satisfied with his attorney’s representation. Majors v. State, 946 So. 2d 369, 2006 Miss. App. LEXIS 199 (Miss. Ct. App. 2006), cert. denied, 947 So. 2d 960, 2007 Miss. LEXIS 50 (Miss. 2007).

Denial of the inmate’s motion for post-conviction relief was proper; his counsel was not ineffective because the inmate’s argument that his attorney was not convincing enough since the judge ruled against him did not show deficient performance under Strickland. The inmate had credited his counsel with making the correct arguments before the judge. Jones v. State, 922 So. 2d 31, 2006 Miss. App. LEXIS 103 (Miss. Ct. App. 2006).

Although petitioner claimed that she was denied her right to effective assistance of counsel under the Sixth Amendment and Miss. Const. Art. 3, § 26, due to her counsel’s failure to actively pursue a change of venue, generally conduct an investigation of her case, conduct an adequate investigation in preparation for the guilt-innocence phase and the sentencing phase of her trial, and to object and preserve for appeal purposes the prosecutor’s improper comments during the guilt phase of the trial, the court had determined each of petitioner’s arguments was without merit because, in her efforts to meet the Strickland test criteria, petitioner failed to demonstrate that her trial counsel’s actions were deficient and that the deficiency prejudiced the defense of her case. Unless petitioner made both showings, it could not be said that the conviction or death sentence resulted from a breakdown in the adversary process that rendered the result unreliable. Byrom v. State, 927 So. 2d 709, 2006 Miss. LEXIS 43 (Miss.), cert. denied, 549 U.S. 1056, 127 S. Ct. 662, 166 L. Ed. 2d 520, 2006 U.S. LEXIS 9076 (U.S. 2006).

Appellate court affirmed defendant’s conviction for the sale of a controlled substance and marijuana because even if defendant’s counsel’s performance was deficient, defendant was not prejudiced by it given that the drug transaction was videotaped and shown to the jury and the confidential informant testified against defendant. Westbrook v. State, 928 So. 2d 186, 2005 Miss. App. LEXIS 711 (Miss. Ct. App. 2005), cert. denied, 929 So. 2d 923, 2006 Miss. LEXIS 243 (Miss. 2006).

Defendant, to prevail on a claim of ineffective assistance, had to show deficiency of counsel’s performance and that the deficiency prejudiced his defense; there was a lack of evidence within the record that there was a reasonable probability of a different outcome, but for counsel’s alleged errors. Preuett v. State, 879 So. 2d 1116, 2004 Miss. App. LEXIS 782 (Miss. Ct. App.), cert. dismissed, 883 So. 2d 1180, 2004 Miss. LEXIS 1337 (Miss. 2004).

Mississippi Supreme Court utilizes the two-prong approach under Strickland when evaluating ineffective assistance of counsel claims, even in death penalty cases. Neither the Mississippi Supreme Court, the United States Court of Appeals for the Fifth Circuit, nor the United States Supreme Court have ever recognized the “super due process” test. Branch v. State, 882 So. 2d 36, 2004 Miss. LEXIS 586 (Miss. 2004), cert. denied, 544 U.S. 907, 125 S. Ct. 1595, 161 L. Ed. 2d 282, 2005 U.S. LEXIS 2289 (U.S. 2005).

In a sexual battery case, the inmate’s trial counsel was not ineffective for asking for several continuances. When the inmate himself claimed that he was incompetent to proceed at trial, it was frivolous for him to claim that he was prejudiced by postponing his trial so that he could undergo psychiatric evaluations. Calhoun v. State, 849 So. 2d 892, 2003 Miss. LEXIS 233 (Miss. 2003).

Strickland ineffective assistance of counsel test applies to guilty pleas. Hodgin v. State, 702 So. 2d 113, 1997 Miss. LEXIS 613 (Miss. 1997).

Under Strickland, test to be applied in cases involving alleged ineffectiveness of counsel is (1) whether counsel’s overall performance was deficient and (2) whether deficient performance, if any, prejudiced defense. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Claim of ineffective assistance of counsel is judged by whether counsel’s performance was deficient, and, if so, whether deficient performance was prejudicial to defendant in sense that court’s confidence in correctness of outcome is undermined. Roland v. State, 666 So. 2d 747, 1995 Miss. LEXIS 600 (Miss. 1995).

While effective assistance of counsel is not errorless counsel, counsel must perform services that are reasonably adequate. Counsel is ineffective if he fails to investigate sources of evidence which may be helpful to the defense. Jones v. Thigpen, 555 F. Supp. 870, 1983 U.S. Dist. LEXIS 19724 (S.D. Miss. 1983), aff'd in part and rev'd in part, 741 F.2d 805, 1984 U.S. App. LEXIS 18556 (5th Cir. Miss. 1984).

113. –Time at which issue of ineffective counsel raised, assistance of counsel.

Issues of an involuntary guilty plea, ineffective assistance of counsel, a defective and improper indictment, and misconduct on the part of the state officials that were presented by an inmate in a motion for post-conviction relief, were procedurally barred because the inmate waited more than six years after the inmate was convicted to file the motion; furthermore, the trial court found that none of the exceptions to the three-year statute of limitations of Miss. Code Ann. §99-39-5(2) were applicable, and thus the inmate was not entitled to post-conviction relief. Davis v. State, 958 So. 2d 252, 2007 Miss. App. LEXIS 367 (Miss. Ct. App. 2007).

In a post-conviction proceeding, an inmate’s argument that he was denied effective assistance of counsel at his trial for burglary of a dwelling was waived because the issue was procedurally barred, where the inmate had a meaningful opportunity on direct appeal to raise a claimed error by his trial counsel; further, there was no plain error in the inmate’s trial counsel’s failure to raise the issue of whether a vacant house owned by a nursing home resident was a “dwelling” because there was an intent for it to function as a dwelling. Sheffield v. State, 881 So. 2d 249, 2003 Miss. App. LEXIS 998 (Miss. Ct. App. 2003), cert. dismissed, 2005 Miss. LEXIS 87 (Miss. Feb. 3, 2005).

Under Mississippi law, failure to raise ineffective assistance of counsel claim on direct review does not constitute procedural bar where litigant was represented by same counsel at trial and on direct appeal. Martin v. Maxey, 98 F.3d 844, 1996 U.S. App. LEXIS 28836 (5th Cir. Miss. 1996).

114. –Manner of raising issue of ineffectiveness of counsel, assistance of counsel.

Defendant’s ineffective assistance of counsel argument was rebutted by a lack of evidence, as well his own statements, and a prisoner’s ineffective assistance of counsel claim was without merit when the only proof offered of the claim was the prisoner’s own affidavit. Starks v. State, 992 So. 2d 1245, 2008 Miss. App. LEXIS 632 (Miss. Ct. App. 2008).

Defendant’s request for post-conviction relief was denied as the circuit court did not err in holding that defendant adequately waived his right to conflict-free counsel and, under the Sixth Amendment, defendant did not show that, but for his attorney’s performance, the trial would have ended in a different result as counsel’s conduct was not ineffective. Dupuis v. State, 972 So. 2d 7, 2007 Miss. App. LEXIS 782 (Miss. Ct. App. 2007), cert. dismissed, 166 So.3d 23, 2012 Miss. LEXIS 651 (Miss. 2012).

Defendant did not cite any actions by his counsel that supported an argument that the attorney’s performance was deficient or to show how his attorney’s performance was prejudicial to him. Jones v. State, 904 So. 2d 1107, 2004 Miss. App. LEXIS 977 (Miss. Ct. App. – 2004), writ of certiorari denied by 898 So. 2d 679, 2005 Miss. LEXIS 249 (Miss. 2005).

Defendant’s claim that his counsel’s failure to make certain objections at trial constituted ineffective assistance was without merit where his claim was insufficient to rebut the presumption that his counsel was competent and conducted trial in a reasonable manner; proper evaluation of defendant’s other two contentions required an examination of evidence beyond the record before the appellate court, and for that reason, defendant’s entire ineffective assistance claim was better considered in post-conviction relief. Porter v. State, 885 So. 2d 92, 2004 Miss. App. LEXIS 952 (Miss. Ct. App. 2004).

Appellate court declined to consider defendant’s ineffective assistance of counsel claim because the issue was not presented to the trial court, nor did defendant cite any authority in support of a claim that defense counsel’s failure to object to the prosecutor’s closing argument amounted to ineffective assistance of counsel. Stubbs v. State, 878 So. 2d 130, 2004 Miss. App. LEXIS 31 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 936 (Miss. 2004).

Defendant did not prove ineffective assistance of counsel where defendant’s assertion that he wanted to go to trial and so advised his attorney was belied by the transcript of the plea hearing which stated that defendant indicated to the trial judge that he did not want to go to trial; defendant was given the opportunity to present his case to the trial court and present any complaints to the trial court regarding his attorney’s advice, which he did not do, but rather expressed satisfaction with the representation of his attorney. Hill v. State, 850 So. 2d 223, 2003 Miss. App. LEXIS 655 (Miss. Ct. App. 2003).

Defendant did not receive ineffective assistance of counsel where, although defendant received erroneous advice from his lawyer concerning the length of the sentence he might receive pursuant to his guilty plea, the attorney advised the judge of the misinformation during the hearing; when defendant was asked if he understood what the correct sentence was, he responded that he did. Johnson v. State, 848 So. 2d 906, 2003 Miss. App. LEXIS 588 (Miss. Ct. App. 2003).

The defendant failed to allege ineffective assistance of counsel with sufficient specificity where he alleged that his attorney coerced him into pleading guilty and did not advise him of the correct status of his case, but neither stated the manner in which his attorney coerced him nor detailed in what way he was unaware of the correct status of his case. Ellis v. State, 811 So. 2d 296, 2001 Miss. App. LEXIS 18 (Miss. Ct. App. 2001).

To be entitled to evidentiary hearing on merits of ineffectiveness of counsel claim, defendant must establish prima facie claim on both prongs of Strickland test by alleging with specificity and detail that his counsel’s performance was deficient and that the deficient performance prejudiced defense so as to deprive him of fundamentally fair trial. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Defendant who alleges that trial counsel’s failure to investigate constituted ineffectiveness must also state with particularity what investigation would have revealed and specify how it would have altered outcome of trial or how such additional investigation would have significantly aided his cause at trial. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

115. – Trial strategy rather than ineffectiveness of counsel, assistance of counsel.

Nothing in the record rebutted the presumption that defendant’s attorney’s decision not to call witnesses was sound trial strategy, and defendant presented no evidence that the victim impact statement was inaccurate; defendant presented no evidence that there was any agreement that the State would not argue for the maximum sentence, and defendant received the agreed recommendation. Martin v. State, 20 So.3d 734, 2009 Miss. App. LEXIS 467 (Miss. Ct. App. 2009), cert. dismissed, 24 So.3d 1038, 2010 Miss. LEXIS 21 (Miss. 2010).

Trial court properly denied defendant’s motion for postconviction relief after defendant was convicted of child molestation because it was not evident that, but for counsel’s decision to abstain from using defendant’s sister or her husband as witnesses, the outcome of the trial would have been different or that counsel’s decisions stemmed from anything other than strategy. Didon v. State, 7 So.3d 978, 2009 Miss. App. LEXIS 190 (Miss. Ct. App. 2009).

In a case involving the sale of cocaine, defendant did not receive ineffective assistance of counsel because it was not ruled out that a cross-examination regarding an informant’s previous trips to defendant’s house and a stipulation to the conviction of a third party who also sold drugs to the informant were just sound trial strategy. Liddell v. State, 7 So.3d 217, 2009 Miss. LEXIS 107 (Miss. 2009).

Defendant did not demonstrate that trial counsel was ineffective where he did not demonstrate how he was prejudiced by his attorney’s failure to object to a witness’s testimony, and defendant’s crime had not been publicized to a point where a change of venue was needed; trial counsel was not ineffective in not calling a witness to testify on defendant’s behalf as there was nothing in the statement that defendant claimed would show another shooter. Lamar v. State, 983 So. 2d 364, 2008 Miss. App. LEXIS 344 (Miss. Ct. App. 2008).

Appellate court presumed that counsel’s actions were strategic and therefore within the realm of effective assistance when he elicited harmful testimony from a drug-testing expert during a prisoner’s probation revocation hearing; on cross-examination, counsel asked the expert how long marijuana remains in a person’s system. In so doing, counsel could have been trying to demonstrate that, given the prisoner’s body weight and fat content, marijuana would have remained in his system longer than it would have remained in another person’s system; given the presumptions involved, it appeared that counsel was making the only argument possible under the circumstances. Wallace v. State, 982 So. 2d 1027, 2008 Miss. App. LEXIS 332 (Miss. Ct. App. 2008).

Denial of defendant’s motion for a new trial after he had been convicted of aggravated assault and rape was appropriate because his counsel was not ineffective; defendant’s prior convictions surfaced as a product of his impeachment regarding his assertions of an ongoing, consensual sexual relationship with the victim, and counsel’s decision whether to request a limiting instruction regarding a part of the evidence against defendant might have been part of the trial strategy. Moss v. State, 977 So. 2d 1201, 2007 Miss. App. LEXIS 632 (Miss. Ct. App. 2007), cert. denied, 977 So. 2d 1144, 2008 Miss. LEXIS 151 (Miss. 2008).

Defense counsel was not ineffective for failing to cross-examine two witnesses concerning DNA evidence as defendant’s right to confrontation was not violated by trial counsel’s failure to cross-examine those witnesses because the reports they testified about were actually prepared by them, contrary to defendant’s arguments; thus, defense counsel’s decision not to cross-examine those two witnesses, as well as the other witnesses he chose not to cross-examine, was a tactical decision and could not be said to be unreasonable. Golden v. State, 968 So. 2d 378, 2007 Miss. LEXIS 530 (Miss. 2007), cert. dismissed, 977 So. 2d 343, 2008 Miss. LEXIS 111 (Miss. 2008).

Trial counsel was not ineffective because he filed a motion in limine to exclude the alleged prior bad acts from the jury, and counsel’s decision not to seek an instruction stating that the testimony regarding the charges was to be considered solely to establish defendant’s motive for murdering the victim was a strategic one. Jones v. State, 962 So. 2d 1263, 2007 Miss. LEXIS 473 (Miss. 2007).

Defendant failed to satisfy the deficiency prong of the Strickland analysis where the shirt and gun were relevant evidence because he wore the shirt and had the gun that night and both were similar to the limited descriptions the victims gave; trial counsel’s failure to object in the case was reasonable trial strategy as trial counsel set out to impeach the identifications. Jackson v. State, 969 So. 2d 124, 2007 Miss. App. LEXIS 472 (Miss. Ct. App. 2007).

Defendant failed to show that he received ineffective assistance of counsel when trial counsel did not move for a change of venue in a capital case because the record did not support the allegation regarding pre-trial publicity, and there was no right to change venue to a jurisdiction with certain racial demographics. Howard v. State, 945 So. 2d 326, 2006 Miss. LEXIS 531 (Miss. 2006), cert. denied, 552 U.S. 829, 128 S. Ct. 49, 169 L. Ed. 2d 43, 2007 U.S. LEXIS 9278 (U.S. 2007).

In a murder case, defendant failed to show that he received ineffective assistance of counsel based on a failure to object to certain statements regarding the copying of keys and the failure to call the victim’s former girlfriend; defendant failed to show that the statements were relevant, and the choice not to call a witness was merely trial strategy. Sipp v. State, 936 So. 2d 326, 2006 Miss. LEXIS 336 (Miss. 2006).

Defendant alleged that his counsel was ineffective because his counsel developed a trial strategy and then did not investigate, secure expert assistance, offer any evidence in support of the theory, or request a jury instruction in support of the theory; however, his ineffective assistance of counsel claim failed because (1) counsel attacked the weakness of the State’s case by adducing testimony on cross-examination that a sexual assault kit from the victim testing for any of defendant’s DNA in her came back negative; (2) counsel did make a request for a pathologist at state expense for assistance in interpreting the autopsy report, but the trial court exercised its discretion in refusing defense counsel’s request for an independent evaluation, and the trial court’s actions in denying defendant an expert did not deny him a fair trial; and (3) counsel’s decision not to submit lesser offense jury instructions, while it turned out to be unsuccessful (if successful, then defendant would not have been guilty of any offense and a free man), was appropriate trial strategy, and, thus, beyond the realm of serious consideration on a claim of ineffective assistance of counsel. Havard v. State, 928 So. 2d 771, 2006 Miss. LEXIS 90 (Miss. 2006), cert. denied, 549 U.S. 1119, 127 S. Ct. 931, 166 L. Ed. 2d 716, 2007 U.S. LEXIS 153 (U.S. 2007).

Defendant alleged that he was denied his constitutional right to effective assistance of counsel, but the aid given by defendant’s trial counsel was effective and presented no basis for reversal on appeal because (1) the testimony at trial clearly indicated that the victim’s body had been moved and that any knife which might have been at the crime scene was not found until later; (2) during cross-examination, defendant’s counsel strongly questioned law enforcement as to how thorough their search and investigation of the scene was; (3) defendant failed utterly to demonstrate that character witnesses would have changed the outcome in his case, and he presented no evidence indicating that the failure to call character witnesses prejudiced his defense; (4) counsel’s decision, not to ask that the jury be allowed to view the crime scene, fell within the ambit of reasonable trial strategy; (5) the decision of trial counsel to not discuss any violent incidents of the victim could very well have been predicated upon the fact that any violent propensities of defendant could then be brought out by the State; and (6) it was unclear from defendant’s argument what other evidence he would have had his counsel present regarding his self-defense claim. Sullinger v. State, 935 So. 2d 1067, 2006 Miss. App. LEXIS 25 (Miss. Ct. App.), cert. denied, 936 So. 2d 367, 2006 Miss. LEXIS 423 (Miss. 2006).

Defendant’s counsel did not provide ineffective assistance where, although the actions of defendant’s counsel were not error-free, the error of untimely witness disclosure was not so egregious as to undermine the confidence in the outcome; the disallowed alibi testimony was very weak, unpersuasive given the strength of the opposing evidence, and even contradictory; the evidence against defendant was very persuasive. Ransom v. State, 919 So. 2d 887, 2005 Miss. LEXIS 595 (Miss. 2005), cert. denied, 548 U.S. 908, 126 S. Ct. 2931, 165 L. Ed. 2d 958, 2006 U.S. LEXIS 4985 (U.S. 2006).

Defense counsel was not ineffective for not filing for a change of venue in defendant’s arson trial; although only 13 of the 82 jury panelists had not heard about the case, only five of them expressed a fixed opinion on it, and all five were struck for cause. Moreover, a decision on whether or not to file a change of venue motion fell within the purview of trial strategy. McGee v. State, 907 So. 2d 380, 2005 Miss. App. LEXIS 62 (Miss. Ct. App.), cert. denied, 910 So. 2d 574, 2005 Miss. LEXIS 450 (Miss. 2005).

In a murder case, defendant’s trial counsel was not ineffective because (1) counsel’s failure to file a motion to suppress a witness from testifying did not require reversal as the State withdrew her as a witness and the trial court instructed the jury to disregard her testimony up to that point and to disregard her State’s remarks in its opening statement regarding the witness; (2) defense counsel’s opposition to a lesser-included manslaughter jury instruction was appropriate; (3) counsel’s failure to object to the State’s closing argument statement that the police had done a good job did not merit reversal; (4) trial counsel was not deficient in failing to investigate whose shoes were at the victim’s apartment because neither defendant nor any other witness testified that they saw anyone else at the apartment when the victim was shot; and (5) defendant did not show that the failure to reduce her many statements to writing amounted to ineffective assistance of counsel. Reynolds v. State, 913 So. 2d 290, 2005 Miss. LEXIS 258 (Miss. 2005).

In defendant’s trial for sexual battery of a child, defense counsel was not ineffective for stating during voir dire that defendant could be released on a technicality even though the proof showed defendant guilty. There was no evidence that counsel’s actions were anything other than trial strategy. Renfrow v. State, 882 So. 2d 800, 2004 Miss. App. LEXIS 919 (Miss. Ct. App. 2004).

Defendant was not denied the effective assistance of counsel during trial for three counts of statutory rape because there was nothing in defendant’s claims that, even accepted as true, would have had the likely effect of changing the outcome of case; decisions that defendant complained of were strategic. Boggan v. State, 894 So. 2d 581, 2004 Miss. App. LEXIS 722 (Miss. Ct. App. 2004), cert. denied, 896 So. 2d 373, 2005 Miss. LEXIS 162 (Miss. 2005).

Defendant failed to prove claim of ineffective assistance of counsel, because the fact that defendant’s attorney did not object when defendant thought he should have objected did not establish that the attorney’s performance was ineffective, and an exhibit was offered as proof that this was part of a trial strategy. Irons v. State, 886 So. 2d 726, 2004 Miss. App. LEXIS 277 (Miss. Ct. App.), cert. denied, 887 So. 2d 183, 2004 Miss. LEXIS 1380 (Miss. 2004).

In a capital murder case, counsel was not ineffective during the penalty phase regarding the evidence, venue, voir dire, jury verdict, competency, security measures, prosecutorial misconduct, mitigating circumstances, manner of execution, investigating, witnesses, experts, opening statement, or closing argument. Russell v. State, 849 So. 2d 95, 2003 Miss. LEXIS 297 (Miss. 2003).

In a capital murder case, counsel was not ineffective at trial regarding the evidence, witnesses, Batson challenges, suppression of evidence, attorney-client privilege, voir dire, courtroom security, familiarity with capital cases, investigating, competency hearing, venue, opening statement, or closing argument. Russell v. State, 849 So. 2d 95, 2003 Miss. LEXIS 297 (Miss. 2003).

Defense counsel’s failure to note the race of the jurors on the jury list did not raise an issue under Batson, nor was it ineffective representation, since it related to a matters of trial strategy. Al-Fatah v. State, 856 So. 2d 494, 2003 Miss. App. LEXIS 333 (Miss. Ct. App.), cert. denied, 860 So. 2d 315, 2003 Miss. LEXIS 714 (Miss. 2003).

In defendant’s capital murder case, where the trial court did not err in admitting the victim’s statement, appellate counsel was not ineffective in failing to raise it on direct appeal. Goodin v. State, 856 So. 2d 267, 2003 Miss. LEXIS 353 (Miss. 2003), cert. denied, 541 U.S. 947, 124 S. Ct. 1681, 158 L. Ed. 2d 375, 2004 U.S. LEXIS 2196 (U.S. 2004), overruled, Lynch v. State, 951 So. 2d 549, 2007 Miss. LEXIS 34 (Miss. 2007).

Defense counsel was not ineffective as the failure to request a change of venue and the failure to call certain witnesses were matters of strategy, and defendant failed to show that the hiring of a forensic expert would have changed the result of the trial. Roy v. State, 878 So. 2d 84, 2003 Miss. App. LEXIS 729 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 911 (Miss. 2004).

Appellate court properly held that defendant had failed to show what specific evidence a witness would have presented or how that evidence would have been relevant to the defense; therefore, the court would assume the decision not to call the witness was strictly a matter of trial strategy and not ineffective assistance of counsel Sharkey v. State, 856 So. 2d 545, 2003 Miss. App. LEXIS 428 (Miss. Ct. App.), cert. denied, 859 So. 2d 1017, 2003 Miss. LEXIS 594 (Miss. 2003).

During the sentencing phase in a capital murder case, defense counsel intentionally elicited testimony that petitioner had once been accused of sexually molesting a small child as part of a showing that petitioner’s psychological instability was evident at an earlier age; this fell within the realm of trial strategy and did not amount to ineffective assistance of counsel. McGilberry v. State, 843 So. 2d 21, 2003 Miss. LEXIS 93 (Miss. 2003).

The defendant failed to establish ineffective assistance of counsel where the two issues he raised both pertained to trial strategy and he failed to show a deficiency in performance by trial counsel or that there was prejudice. Wilson v. State, 775 So. 2d 735, 2000 Miss. App. LEXIS 216 (Miss. Ct. App. 2000).

The assistance rendered by defense counsel to the defendant was not ineffective since the alleged errors enumerated by the defendant were attributable to trial strategy and, therefore, were at his counsel’s discretion and, further, as there was no evidence that the defendant would not have been convicted but for the alleged errors of his counsel. Ruttley v. State, 746 So. 2d 872, 1998 Miss. App. LEXIS 1061 (Miss. Ct. App. 1998).

The defendant failed to show ineffectiveness of counsel since, while he provided a lengthy listing of alleged errors, the majority of the purported errors were the result of trial strategy, and therefore were at his counsel’s discretion and, further, there was no claim by the defendant, much less any factual evidence in the trial court record, that he would not have been convicted but for the alleged errors of his trial counsel. Armstrong v. State, 726 So. 2d 258, 1998 Miss. App. LEXIS 1104 (Miss. Ct. App. 1998).

The court rejected the contention that defense counsel was ineffective since the decision by trial counsel to discuss violence or force, although not an element of the crime, could be viewed as a strategic decision to attack the credibility of the victim. Winston v. State, 726 So. 2d 197, 1998 Miss. App. LEXIS 996 (Miss. Ct. App. 1998), aff'd in part and rev'd in part, 754 So. 2d 1154, 1999 Miss. LEXIS 368 (Miss. 1999).

The court properly rejected the contention that counsel for the defendant in a murder prosecution was ineffective in failing to investigate whether the victim had powder burns on his hands, which the defendant claimed would support his assertion that he and the victim struggled over a gun and that the gun was fired several times, since there was no factual support in the record to support the defendant’s contention and counsel may have chosen not to investigate on the basis that the absence of powder burns would have discredited the defendant’s testimony. United States v. Sylvester, 143 F.3d 923, 1998 U.S. App. LEXIS 12810 (5th Cir. Miss. 1998).

Where the strategy of the defendant in a murder prosecution was to concede guilt and present evidence during the sentencing phase in mitigation of the sentence, the defendant was not denied effective assistance of counsel when his counsel effectively admitted his guilt during voir dire proceedings. Evans v. State, 725 So. 2d 613, 1997 Miss. LEXIS 389 (Miss. 1997), cert. denied, 525 U.S. 1133, 119 S. Ct. 1097, 143 L. Ed. 2d 34, 1999 U.S. LEXIS 1510 (U.S. 1999).

Trial counsel’s failure during sentencing phase to present mitigating evidence concerning capital murder defendant’s diminished capacity did not constitute ineffective assistance, where omission could be seen as legitimate trial strategy. Chase v. State, 699 So. 2d 521, 1997 Miss. LEXIS 320 (Miss. 1997).

Counsel was not deficient in arguing to jury that justice was not justice unless it was complete justice and that defendant was taking all of the blame when it was not all his, as counsel did not explicitly concede guilt and was merely utilizing trial strategy of creating reasonable doubt that defendant did not commit the crime charged because it was done by others. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Counsel was not deficient for arguing to the jury at the penalty phase “if you want to kill him, kill him,” as counsel was strategically attempting to argue that such a penalty would not punish or teach a lesson to the people who were primarily responsible for defendant’s shortcomings, including his mother, his grandmother, and society. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Counsel for capital murder defendant was not ineffective for failing to investigate and develop fact of defendant’s low intelligence quotient, where absence of that evidence did not reasonably undermine confidence in outcome of trial, in that it was merely additional evidence of defendant’s mental aptitude, since counsel argued that defendant had very minimal education and deprived childhood. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Strategic decision to pursue less than all plausible lines of defense will rarely, if ever, be deemed ineffective counsel, if counsel first adequately investigated the rejected alternative. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Counsel for capital murder defendant was not ineffective for failing to file certain motions, call certain witnesses, ask certain questions, and make certain objections, where counsel’s actions fell within ambit of trial strategy. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Counsel for capital murder defendant was not ineffective for failing to make offer of proof concerning excluded mitigation-of-sentence testimony about defendant’s religious convictions and effect on him of death of his stepchild, where the evidence was adequately established via testimony of other witnesses. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Defendant charged with sexual battery and attempted sexual battery was not denied effective assistance of counsel; record was replete with objections lodged by defense counsel, and defendant showed no prejudice from counsel’s decision to refrain from making opening statement, from counsel’s failure to offer instruction on theory of defense, and from counsel’s alleged inadequacy in jury selection. Hughes v. State, 665 So. 2d 852 (Miss. 1995), reh’g denied (Miss. Dec. 21, 1995).

In a prosecution for possession of cocaine with intent to distribute, the defendant was denied his constitutional right to effective assistance of counsel where the defense strategy was to admit guilt to the charge of simple possession of cocaine, but to deny any intent to sell or distribute, the defense counsel failed to object to evidence of the defendant’s past drug sales, which was the most damaging piece of evidence presented, he failed to preserve any objection relating to the sufficiency of the evidence for trial court or appellate review, and the evidence was insufficient as a matter of law to support the charge. Holland v. State, 656 So. 2d 1192, 1995 Miss. LEXIS 261 (Miss. 1995).

A murder defendant’s trial counsel was not ineffective for arguing that the case was one of self-defense, even though the prosecution witnesses were consistent in testifying that the defendant initiated the confrontation that lead to the victim’s death so that, with the benefit of hindsight, it was apparent that a self-defense argument did not have a strong possibility of success, where the defendant failed to show that his trial counsel’s arguments and strategy were deficient as judged from the time offered, and there was no significant probability that the result would have been different but for the alleged errors of trial counsel since the evidence against the defendant was substantial. Brown v. State, 626 So. 2d 114, 1993 Miss. LEXIS 478 (Miss. 1993).

An attorney did not render ineffective assistance merely because he did not put the defendant on the witness stand during a hearing on the defendant’s motion to suppress his confession, since the attorney’s decision to keep the defendant off the stand may have been a deliberate trial strategy. Even if the attorney made a mistake, it did not rise to the level of ineffective assistance of counsel necessary to violate the Sixth Amendment right to counsel; there is a strong presumption that an attorney’s performance was within the wide range of reasonable, professional, and acceptable conduct. Mohr v. State, 584 So. 2d 426, 1991 Miss. LEXIS 481 (Miss. 1991).

A defense counsel’s failure to pursue an alibi defense was not unsound trial strategy, and therefore did not constitute ineffective assistance of counsel, where the defendant had admitted to the offenses but challenged the dates in the indictment as being incorrect. Schmitt v. State, 560 So. 2d 148, 1990 Miss. LEXIS 62 (Miss. 1990).

The mere fact that an attorney did not file a motion for discovery is not sufficient to raise an ineffective assistance of counsel claim since the filing of pre-trial motions falls squarely within the ambit of trial strategy. Powell v. State, 536 So. 2d 13, 1988 Miss. LEXIS 587 (Miss. 1988).

Ineffective assistance of counsel claim based on allegations concerning failure to investigate for mitigating evidence and failure to perform sufficient research was not borne out where attorney testified he was well aware of defendant’s background due to his personal acquaintance with him, co-counsel testified that witnesses had been interviewed, and both attorneys testified that co-counsel had performed necessary legal research. Stringer v. Scroggy, 675 F. Supp. 356, 1987 U.S. Dist. LEXIS 11203 (S.D. Miss. 1987), aff'd, 862 F.2d 1108, 1988 U.S. App. LEXIS 17949 (5th Cir. Miss. 1988).

Ineffective assistance of counsel was not shown where defendant argued that counsel made decision to pursue defense of lack of intent to kill, but failed to follow up on this strategic choice, where counsel elicited evidence of defendant’s having “shot up” to negate argument that defendant intended to kill. Wiley v. State, 517 So. 2d 1373, 1987 Miss. LEXIS 2915 (Miss. 1987), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 610, 1988 U.S. LEXIS 2458 (U.S. 1988).

Claim that failure to voir dire pathologists relating to their credentials constituted ineffective assistance of counsel failed where one pathologist’s credentials were beyond question and defendant failed to produce any evidence that other pathologist was not qualified; defendant’s allegation of ineffective assistance of counsel based on failure to cross-examine on merits on cause-of-death issue also failed because this was trial counsel’s decision that there was “nothing to gain” by such cross-examination because it would do nothing but allow reception of facts and bolster damaging testimony in minds of jurors. Merritt v. State, 517 So. 2d 517, 1987 Miss. LEXIS 2875 (Miss. 1987).

Claim that counsel was ineffective at trial because defendant did not take stand in his own defense was not supported where there was no suggestion that defendant insisted upon taking stand and was precluded from doing so by counsel or court; defendant was advised by his attorney that he should not take stand because he would not be good or effective witness on his own behalf and cross-examination would bring out information that would be highly damaging. Merritt v. State, 517 So. 2d 517, 1987 Miss. LEXIS 2875 (Miss. 1987).

In prosecution for capital murder committed during robbery, defendant was not subjected to ineffective assistance of counsel during guilt and sentencing stages, where counsel’s decisions to emphasize defendant’s youth, have defendant make unsworn statement to jury rather than testify and be subjected to cross examination, and forego character witness testimony for purposes of precluding rebuttal were strategic and within range of constitutionally competent representation and, assuming inadequate representation, case’s outcome would not have been affected. King v. State, 503 So. 2d 271, 1987 Miss. LEXIS 2343 (Miss. 1987).

Defense counsel in capital case in which evidence of guilt is overwhelming is not constitutionally inadequate in seeking merely to ameliorate force of prosecution’s case rather than vigorously pursuing defense. Caldwell v. State, 481 So. 2d 850, 1985 Miss. LEXIS 2335 (Miss. 1985), vacated, 479 U.S. 1075, 107 S. Ct. 1269, 94 L. Ed. 2d 130, 1987 U.S. LEXIS 589 (U.S. 1987), reinstated, 517 So. 2d 1360, 1987 Miss. LEXIS 2822 (Miss. 1987).

116. – Failure or refusal to present evidence as ineffectiveness of counsel, assistance of counsel.

Petitioner could not show that his trial counsel was deficient for failing presenting a mitigation argument or that emphasizing petitioner’s experiences in a juvenile training facility or adult prison would have led to a different outcome because his prolonged institutionalization and incarceration was strategic; by not focusing on petitioner’s living conditions while in juvenile or adult facilities, counsel kept the State from counter attacking with his criminal history. Corrothers v. State, 255 So.3d 99, 2017 Miss. LEXIS 40 (Miss. 2017).

Petitioner could not show that the outcome would have been different if an expert had been presented on executive functioning because the more specific executive-functioning testimony proposed by his new expert would not have significantly differed or added to original expert’s testimony; counsel reasonably investigated petitioner’s background and the impact it had on his development and behavior. Corrothers v. State, 255 So.3d 99, 2017 Miss. LEXIS 40 (Miss. 2017).

In appellant’s capital murder case, counsel was not ineffective for failing to obtain the State’s witness’s criminal history because the witness’s felony conviction occurred in 1983, almost seventeen years before the crime at issue, and whether impeachment of the witness concerning his seventeen-year-old conviction for burglary would have been admissible was doubtful. Additionally, the witness was examined thoroughly and extensively about his identification of appellant and about the lighting and other visibility factors. Howell v. State, 989 So. 2d 372, 2008 Miss. LEXIS 419 (Miss. 2008).

During defendant’s murder trial, it was reasonable for defense counsel not to hire an expert witness to discover whether there was evidence of another shooter who might have killed the victim where defendant confessed to shooting the victim three times, which was consistent with evidence presented in the autopsy report and witnesses’ testimony. Davis v. State, 980 So. 2d 951, 2007 Miss. App. LEXIS 689 (Miss. Ct. App. 2007), cert. denied, 979 So. 2d 691, 2008 Miss. LEXIS 205 (Miss. 2008).

In defendant’s trial for capital murder, defendant alleged that her trial counsel was ineffective, but defendant’s allegations, which were unsupported by evidence, were insufficient to rebut the presumption that counsel’s performance was reasonable; defendant claimed that witnesses were available to testify about the deceased child’s mother’s treatment of the child, but defendant did not provide any supporting affidavits from these witnesses. Berry v. State, 980 So. 2d 936, 2007 Miss. App. LEXIS 393 (Miss. Ct. App. 2007), cert. denied, 979 So. 2d 691, 2008 Miss. LEXIS 204 (Miss. 2008).

Petitioner was entitled to a post-conviction hearing on the issue of ineffective assistance of counsel as counsel’s untimely disclosure of some mitigation witnesses led to their exclusion from the sentencing phase of a capital murder trial, which the trial court even characterized as ineffective assistance of counsel; in addition, counsel failed to pursue petitioner’s mental retardation claim and to offer sufficient mitigating evidence. Lynch v. State, 951 So. 2d 549, 2007 Miss. LEXIS 34 (Miss. 2007).

Defendant’s murder conviction was appropriate where his counsel was not ineffective. Defendant listed approximately 40 instances of leading questions asked by the State of the victim’s brother, a child, but defendant failed to state how those leading questions in any way prejudiced defendant. Osborne v. State, 942 So. 2d 193, 2006 Miss. App. LEXIS 134 (Miss. Ct. App.), cert. denied, 942 So. 2d 164, 2006 Miss. LEXIS 714 (Miss. 2006).

Defendant raised an ineffective assistance of counsel claim where there was evidence of conflicting statements by the victim as to who poured boiling water on him and was enough to raise a reasonable doubt that defendant committed the offense; if defense counsel had investigated and presented evidence of defendant’s prior abuse by the victim, and of the abuse that defendant testified had taken place immediately prior to the incident, the inconsistencies in testimony of the victim’s mother and sister concerning those events, and the intervening circumstances of the victim’s death from respiratory failure, it was reasonable to conclude that the outcome of a jury trial may have been different. Hannah v. State, 2006 Miss. LEXIS 365 (Miss. July 20, 2006), op. withdrawn, sub. op., 943 So. 2d 20, 2006 Miss. LEXIS 578 (Miss. 2006).

Defendant did not show ineffective assistance of counsel where trial counsel could not be faulted for failing to present mitigating evidence as to defendant’s mental retardation, as it did not exist; defendant’s argument as to counsel’s failure to challenge the aggravating circumstance was barred by res judicata and his other issues were without merit. Mitchell v. State, 886 So. 2d 704, 2004 Miss. LEXIS 1037 (Miss. 2004), cert. denied, 544 U.S. 1022, 125 S. Ct. 1982, 161 L. Ed. 2d 864, 2005 U.S. LEXIS 3824 (U.S. 2005).

Counsels’ performance in failing to investigate and present mitigation evidence was not deficient where the prisoner blocked his counsels’ efforts and elected to forego presenting mitigation evidence. Bishop v. State, 882 So. 2d 135, 2004 Miss. LEXIS 773 (Miss. 2004), cert. denied, 543 U.S. 1189, 125 S. Ct. 1401, 161 L. Ed. 2d 194, 2005 U.S. LEXIS 2123 (U.S. 2005).

Trial counsel did not provide ineffective assistance of counsel where although defendant asserted that his counsel failed to obtain and present at trial any evidence that was relevant to whether the rape and sexual battery occurred, he failed to mention what this evidence would have been or who the witnesses would have been that would have testified in his support; counsel provided a sound trial strategy and it was harmless error to admit evidence that defendant provided marijuana and alcohol to the victims, given the unequivocal testimony of the victims. Carle v. State, 864 So. 2d 993, 2004 Miss. App. LEXIS 33 (Miss. Ct. App. 2004).

In a capital murder case, the inmate’s counsel were not ineffective for failing (1) to object to the reintroduction of evidence from the guilt phase because the evidence was admissible; (2) to elicit testimony from the inmate’s mother that the sheriff and deputy were alone in the inmate’s room during their search; or (3) to obtain DNA evidence that could not procedurally be introduced. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

In a capital murder case, the inmate’s counsel were not ineffective for failing to properly develop and present mitigating evidence at trial because the inmate’s attorneys did present mitigating evidence to the jury that the inmate’s father was an abusive alcoholic; that the inmate’s mother and father had marital problems throughout his childhood; that the inmate himself was an alcoholic and drug addict; that that inmate was suffering from extreme mental and emotional disturbances on the night of the murders; and that the inmate’s capacity to appreciate the criminality of his conduct on the night of the murders was impaired. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

In a capital murder case, the inmate’s counsel were not ineffective for failing to introduce rebuttal evidence regarding the inmate’s interview with a journalist because evidence that the inmate was suicidal and suffered from severe depression might have backfired and might have made it easier for the jury to decide to sentence the inmate to death because he stated that he wanted to die and because counsel reasonably wanted to keep the information that the inmate had been previously sentenced to death from the jury. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

In a capital murder case, the inmate’s counsel were not ineffective for failing to introduce rebuttal evidence regarding the State’s experts because the inmate’s attorneys did call two doctors to testify on the inmate’s behalf and any failure to cross-examine the State’s doctors was not deficient because it could have bolstered the State’s doctors’ testimonies and given the State more ammunition. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

No support existed for the defendant’s post-conviction claim that he was denied the effective assistance of counsel due to his counsel’s failure to fully investigate the facts of the defendant’s case and explore the possibility that various purported witnesses could have provided evidence tending to absolve the defendant from guilt because the defendant failed to show that any witnesses who could exonerate him existed and that the unavailability of potentially favorable witnesses was due to the defense counsel’s failure to adequately pursue this avenue of defense. Davidson v. State, 850 So. 2d 158, 2003 Miss. App. LEXIS 493 (Miss. Ct. App. 2003).

Petition for postconviction relief was properly denied because an inmate did not receive ineffective assistance of counsel when counsel failed to pursue an insanity defense after a psychiatric report did not reveal any evidence of insanity; moreover, even if counsel improperly told the inmate not to mention medications during the plea process, there was no evidence that the outcome of the case was affected, and any misconception regarding counsel’s advice about the inmate’s sentence was corrected by the trial court. Daughtery v. State, 847 So. 2d 284, 2003 Miss. App. LEXIS 504 (Miss. Ct. App. 2003).

Defendant had to show a deficiency of counsel’s performance sufficient to constitute prejudice to his defense; however, the record was void of evidence to establish a claim of ineffective assistance. Sanders v. State, 847 So. 2d 903, 2003 Miss. App. LEXIS 543 (Miss. Ct. App. 2003).

Court rejected defendant’s claim of ineffective assistance of counsel because a review of the record revealed no deficiency in defense counsel’s performance, who zealously cross-examined witnesses and properly conducted a defense. Lott v. State, 844 So. 2d 502, 2003 Miss. App. LEXIS 380 (Miss. Ct. App. 2003).

Defense counsel was constitutionally ineffective at the sentencing phase of the defendant’s murder trial where he failed to investigate or present evidence of the defendant’s mental problems. Lockett v. Anderson, 230 F.3d 695, 2000 U.S. App. LEXIS 25501 (5th Cir. Miss. 2000).

In the light of testimony by the 10 year old victim that the defendant engaged in sexual intercourse with her and testimony by a physician that he found evidence of sexual contact when examining the victim, the failure of defense counsel to present allegedly exculpatory evidence that the victim, but not the defendant, had chlamydia did not constitute ineffective assistance of counsel in the defendant’s prosecution for rape. Wiltcher v. State, 724 So. 2d 933, 1998 Miss. App. LEXIS 963 (Miss. Ct. App. 1998).

Trial counsel’s failure during guilt phase to present evidence concerning capital murder defendant’s diminished capacity did not constitute ineffective assistance, where defendant did not raise insanity defense. Chase v. State, 699 So. 2d 521, 1997 Miss. LEXIS 320 (Miss. 1997).

Trial counsel’s failure to introduce evidence of capital murder defendant’s diminished capacity at suppression hearing did not constitute ineffective assistance, where suppression hearing was held prior to order which directed psychologist to examine defendant and date of psychologist’s report mentioning defendant’s diminished capacity. Chase v. State, 699 So. 2d 521, 1997 Miss. LEXIS 320 (Miss. 1997).

Trial counsel’s failure at trial to use psychologist’s report, indicating capital murder defendant’s diminished capacity, to explain defendant’s particular vulnerability to police coercion in effort to avoid admission of defendant’s statement to police that when he entered home one victim was already tied up and that he did not participate in ransacking house or killing other victim did not constitute ineffective assistance, where statement was similar to trial testimony, statement’s value was primarily to impeach defendant, and trial court was privy to report at time of trial. Chase v. State, 699 So. 2d 521, 1997 Miss. LEXIS 320 (Miss. 1997).

A defendant who alleged that he was denied effective assistance of counsel in a capital murder prosecution due to his counsel’s refusal to allow him to testify was entitled to an evidentiary hearing on his claim that he was denied the right to take the witness stand and testify on his own behalf. Neal v. State, 525 So. 2d 1279, 1988 Miss. LEXIS 312 (Miss. 1988).

Based on case law as it existed at time of trial, counsel’s refusal to take chance on waiving objection to wife’s testimony by indulging in cross-examination of her did not render his assistance constitutionally inadequate. Merritt v. State, 517 So. 2d 517, 1987 Miss. LEXIS 2875 (Miss. 1987).

117. – Inadequate preparation for trial as ineffectiveness of counsel, assistance of counsel.

Waiting until a date close to trial to request discovery is not per se deficient performance of counsel. Therefore, in a statutory rape case, ineffective assistance of counsel was not shown where discovery from the State was received a week before trial; even assuming that trial counsel was deficient, defendant failed to explain how his defense was prejudiced by the timing of his counsel’s discovery motion since he was not surprised by any of the evidence. Giles v. State, 187 So.3d 116, 2016 Miss. LEXIS 122 (Miss. 2016).

In a statutory rape case, ineffective assistance claims based on failure to investigate, failure to reciprocate discovery, and failure to identify and call additional alibi witnesses, and the question of whether defendant was prejudiced by the totality of counsel’s performance were not based on facts fully apparent from the record. The arguments could have been made in a petition for postconviction relief. Giles v. State, 187 So.3d 116, 2016 Miss. LEXIS 122 (Miss. 2016).

In a statutory rape case, counsel was deficient in failing to notify the State about the witnesses he planned to call, but because defendant made no proffer of witness testimony, it was impossible for an appellate court to know, without engaging in wild speculation, whether this omission had any impact on the outcome of the trial. The claim was dismissed without prejudice to the ability to raise it in appropriate post-conviction proceedings. Giles v. State, 187 So.3d 116, 2016 Miss. LEXIS 122 (Miss. 2016).

Defendant’s claim that counsel was ineffective for not interviewing defendant until the day before the trial was without merit; counsel was able to procure a sentencing deal where defendant would not be sentenced as a habitual offender and arranged for the dismissal of another charge with a potential 60-year sentence. Thompson v. State, 10 So.3d 525, 2009 Miss. App. LEXIS 48 (Miss. Ct. App.), cert. denied, 17 So.3d 99, 2009 Miss. LEXIS 424 (Miss. 2009).

Record did not affirmatively show ineffective assistance of counsel of constitutional dimensions where a very thorough motion for pre-trial discovery was in fact made, and defendant failed to identify any witnesses who should have been interviewed or whose testimony would have strengthened his defense; defendant identified no aspect of his attorney’s performance that suggested a failure to investigate the circumstances and law surrounding his case, and the sentence defendant received was in accord with the applicable statutes. Wynn v. State, 964 So. 2d 1196, 2007 Miss. App. LEXIS 592 (Miss. Ct. App. 2007).

Defendant’s conviction for burglary of a business was appropriate in part because the record was insufficient to resolve defendant’s claim that his attorney was ineffective for not reviewing a surveillance video prior to cross-examining any of the prosecution’s first three witnesses; the record’s state rendered it impossible for the appellate court to examine defendant’s allegations. Turner v. State, 962 So. 2d 691, 2007 Miss. App. LEXIS 182 (Miss. Ct. App. 2007), cert. dismissed, 997 So. 2d 924, 2008 Miss. LEXIS 506 (Miss. 2008).

Defendant’s motion for post-conviction relief was properly denied where he failed to provide sufficient evidence demonstrating his attorney’s deficiency; defendant admitted in his brief that he could not name the witness that counsel should have interviewed, nor did he disclose the “mitigating information” that counsel allegedly failed to uncover. Jones v. State, 956 So. 2d 310, 2006 Miss. App. LEXIS 871 (Miss. Ct. App. 2006).

Defendant’s request for post-conviction relief was denied on the basis of ineffective assistance of counsel due to an alleged failure to investigate in general because that issue was procedurally barred; however, there was no ineffectiveness based on an alleged failure to investigate during the guilt phase of a capital murder trial since counsel would not have been able to determine that testimony would have been perjury, defendant did not have an alibi defense, and decisions regarding the examination of an expert were trial strategy where there was no showing that the expert was not qualified. Even though the failure to call a bite mark expert was ineffective, no prejudice was shown since there was no showing that defendant did not bite the victim. Howard v. State, 945 So. 2d 326, 2006 Miss. LEXIS 531 (Miss. 2006), cert. denied, 552 U.S. 829, 128 S. Ct. 49, 169 L. Ed. 2d 43, 2007 U.S. LEXIS 9278 (U.S. 2007).

Federal district court correctly denied state death row inmate’s habeas corpus petition because defense counsel was not ineffective for failing to adequately interview the government’s pathologist prior to cross-examining him; although the Mississippi Supreme Court erroneously indicated that counsel had interviewed the witness for only 15 minutes, the record clearly showed that counsel had talked to him the evening before cross-examination as well as for 15 minutes prior to that and had affirmatively indicated to the trial court the next morning that he felt he had had sufficient preparation time. Holland v. Anderson, 439 F. Supp. 2d 644, 2006 U.S. Dist. LEXIS 46788 (S.D. Miss. 2006).

Petition for post-conviction relief was denied without an evidentiary hearing where a plea was entered to armed robbery because, despite counsel’s failure to investigate the type of weapon actually used, no prejudice resulted since an inmate failed to show that he would have proceeded to trial. Hinton v. State, 947 So. 2d 979, 2006 Miss. App. LEXIS 381 (Miss. Ct. App. 2006), cert. denied, 947 So. 2d 960, 2007 Miss. LEXIS 94 (Miss. 2007).

In an aggravated assault case, the court erred in finding that counsel was effective where counsel’s failure to investigate the case prejudiced defendant; the testimony of the alibi witnesses, coupled with the fact that there was absolutely no physical evidence to convict defendant, could very well have changed the outcome of the trial. Johns v. State, 926 So. 2d 188, 2006 Miss. LEXIS 180 (Miss. 2006).

Court rejected defendant’s claim that he was denied a fair and impartial trial because while the court found it troubling that five jurors served on the jury in which the witness testified as a victim and then served on defendant’s jury where the witness testified as the State’s primary rebuttal witness, the court found no reversible error. In absence of a showing on voir dire that a juror was biased, the mere fact that the witness had testified in the jurors’ presence as to another crime did not render the panel incompetent. Burnside v. State, 912 So. 2d 1018, 2005 Miss. App. LEXIS 204 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 679 (Miss. 2005).

Defendant claimed that he received ineffective assistance of counsel because his attorney failed to conduct discovery, file certain pre-trial motions, subpoena certain alibi witnesses, request a continuance, properly instruct the jury, and make the proper arrangements for the processing of his appeal; however, defendant failed to demonstrate the likelihood of a different outcome had counsel performed in a different manner. In fact, the record revealed that the trial court disposed of many of the issues that defendant complained his attorney failed to address, and, although defendant’s attorneys were negligent in perfecting his appeal, he still failed to fulfill his obligation of demonstrating prejudice; thus, his ineffective assistance of counsel claim failed. Jackson v. State, 910 So. 2d 658, 2005 Miss. App. LEXIS 170 (Miss. Ct. App.), cert. denied, 904 So. 2d 184, 2005 Miss. LEXIS 402 (Miss. 2005).

Claims that defense counsel was unprepared because he only had two meetings with defendant were rejected, as counsel filed pretrial motions, conducted voir dire, offered challenges for cause, provided compelling opening and closing statements, objected to the admission of certain evidence, and cross-examined witnesses. Under the Sixth Amendment, defendant was entitled to and received minimum competence and loyal assistance. Rinehart v. State, 883 So. 2d 573, 2004 Miss. LEXIS 1228 (Miss. 2004).

Record demonstrated that trial counsel’s performance was not deficient where trial counsel acted according to defendant’s instructions and his efforts to investigate potential mitigation evidence were thwarted by uncooperative witnesses; defendant also failed to prove there was a reasonable probability that the outcome would have been different. Burns v. State, 879 So. 2d 1000, 2004 Miss. LEXIS 722 (Miss. 2004).

Court found no merit in an inmate’s claim that counsel was ineffective for failing to adequately investigate, develop, and present mitigation evidence at the sentencing phase for capital murder; some of the proposed evidence would have been irrelevant or inadmissible, and most of the proposed testimony was testified to by the inmate’s mother, and there was a minimal showing of deficient performance and no assertion of prejudice. Smith v. State, 877 So. 2d 369, 2004 Miss. LEXIS 547 (Miss. 2004).

With respect to the claim that counsel failed to investigate, defendant provided no evidence or even assertions of what exactly counsel should have investigated or how such investigation would have impacted his case favorably; in the absence of any coercive behavior, counsel did not act incorrectly in offering an opinion, which in light of the State’s agreement to forgo life imprisonment, was based on more than reasonable probability. Garner v. State, 864 So. 2d 1005, 2004 Miss. App. LEXIS 44 (Miss. Ct. App. 2004).

Inmate’s post-conviction relief petition was properly denied because the inmate did not produce affidavits to show that defense counsel had failed to investigate two drug charges and to interview witnesses in the case before advising the inmate to plead guilty; moreover, the inmate had given a sworn statement contradicting these complaints at the plea hearing. Steen v. State, 868 So. 2d 1038, 2004 Miss. App. LEXIS 8 (Miss. Ct. App. 2004).

In a murder case, defendant was not denied effective assistance of counsel, because the denial of a continuance did not mean that counsel was unprepared, as counsel filed the necessary pretrial motions, conducted a voir dire examination, offered challenges for cause, provided compelling opening and closing statements, objected to the admission of certain evidence, and cross-examined witnesses. Rinehart v. State, 2003 Miss. LEXIS 558 (Miss. Oct. 23, 2003), op. withdrawn, sub. op., 883 So. 2d 573, 2004 Miss. LEXIS 1228 (Miss. 2004).

Trial counsel was ineffective in failing to investigate, gather, and consider mitigating evidence for purposes of presentation at the defendant’s sentencing hearing as most of the mitigating evidence was readily available and would have cost no more than several long distance telephone calls or postage stamps and there was a reasonable probability that a jury would not have been able to agree unanimously to impose the death penalty if this additional evidence had been effectively presented and explained to the sentencing jury; however, the defendant was, nevertheless, not entitled to federal habeas corpus relief because the contrary decision of the Mississippi Supreme Court did not involve an unreasonable application of the law. Neal v. Puckett, 286 F.3d 230, 2002 U.S. App. LEXIS 4236 (5th Cir. Miss. 2002), cert. denied, 537 U.S. 1104, 123 S. Ct. 963, 154 L. Ed. 2d 772, 2003 U.S. LEXIS 583 (U.S. 2003).

Although the court disagreed with the determination of the Mississippi Supreme Court with regard to whether defense counsel was ineffective in failing to thoroughly investigate the defendant’s background to uncover evidence of mitigating circumstances that could have been presented to the jury during the sentencing phase of the defendant’s murder trial, the defendant was not entitled to federal habeas corpus relief because the court owed deference to the Mississippi Supreme Court and that court’s conclusion was not an unreasonable application of Strickland v. Washington. Neal v. Puckett, 239 F.3d 683, 2001 U.S. App. LEXIS 659 (5th Cir. Miss. 2001).

The defendant failed to establish that his trial counsel was not prepared to go to trial where, although defense counsel initially claimed to be unprepared, he changed his mind and said he could be prepared if the trial was postponed until that afternoon, and counsel demonstrated readiness for trial through thorough cross-examination and closing arguments. Robinson v. State, 784 So. 2d 966, 2000 Miss. App. LEXIS 571 (Miss. Ct. App. 2000).

Defense counsel did not provide bad advice and/or fail to adequately prepare for trial where (1) prior to his entry of a guilty plea, he and his attorney appeared to have a lengthy discussion, during which his attorney advised him that there was a strong likelihood that he would be convicted should he elect to proceed to trial, and (2) when questioned by the trial court regarding his representation, the defendant stated that he was completely and totally satisfied with his representation. Blanch v. State, 760 So. 2d 820, 2000 Miss. App. LEXIS 227 (Miss. Ct. App. 2000).

The fact that the court did not appoint counsel for the defendant until 10 days before trial did not result in the denial of effective assistance of trial counsel in the absence of any demonstration of prejudice. Johnson v. State, 749 So. 2d 306, 1999 Miss. App. LEXIS 585 (Miss. Ct. App. 1999).

Where defendant’s first attorney’s alleged lack of effort on his behalf was serious enough to constitute an effective deprivation of the right of representation, there was nothing to suggest that the defendant’s second attorney was unable to do the necessary investigation and preparation to mount a meaningful defense at trial because of his predecessor’s alleged dilatory conduct. Bell v. State, 733 So. 2d 372, 1999 Miss. App. LEXIS 56 (Miss. Ct. App. 1999).

The defendant was entitled leave to proceed on his claim that his counsel was ineffective in that he failed to move to quash the jury based on improper contact between prospective jurors and the District Attorney’s office and the guards at the county jail. Davis v. State, 743 So. 2d 326, 1999 Miss. LEXIS 224 (Miss. 1999).

The court properly rejected the contention that the defendant was denied effective assistance of counsel on the basis that his attorney failed to file any pre-trial motions to appoint or obtain funds for an independent investigator, forensic pathologist or odontologist since there was no evidence that the attorney’s conduct fell outside the realm of reasonable professional assistance in seeking further expert assistance or that the defendant’s case was prejudiced thereby. Walters v. State, 720 So. 2d 856, 1998 Miss. LEXIS 393 (Miss. 1998).

Defendant’s right to counsel was not violated, although trial judge ordered court-appointed counsel to proceed instead of defendant’s hired counsel, since judge made decision based on hired counsel’s unpreparedness, and court allowed hired counsel to assist and even participate in trial. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

Counsel for capital murder defendant was not ineffective for failing to request continuance after prosecution called so-called “surprise” witness who subsequently identified defendant, where counsel interviewed witness for 25 minutes during recess called specifically for that purpose, and defendant showed nothing that continuance would have further gained. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

A defendant was not denied his right to effective assistance of counsel on the ground that his attorney failed to file any motion for discovery where the defendant provided no evidence to show that the omission was anything other than his attorney’s trial strategy, there was no allegation of critical evidence that may have come to light as a result of discovery, the record did not reflect any surprise to the defendant’s attorney as a result of the State’s case, and the defense attorney was sufficiently familiar with the State’s case and its witnesses that a discovery motion would not have elicited any change in the defense. Ivy v. State, 589 So. 2d 1263, 1991 Miss. LEXIS 802 (Miss. 1991).

A defendant was denied effective assistance of counsel where his attorney failed to conduct discovery, failed to object to the admissibility of statements made by the defendant after he was questioned by a police officer without being advised of his Miranda rights, failed to inquire into the constitutionality of a warrantless, nonconsensual search of the defendant’s automobile, and failed to raise at the trial level the issue of a speedy trial, though the prosecution missed the statutory deadline for a speedy trial by 148 days. Barnes v. State, 577 So. 2d 840, 1990 Miss. LEXIS 822 (Miss. 1990), modified, 577 So. 2d 840 (Miss. 1991).

A defendant’s counsel was not ineffective at the guilt phase of a capital murder trial where the defense counsel adequately investigated, filing discovery motions and obtaining the State’s entire file, and there was no reasonable probability that the outcome of the trial would have been different had evidence been presented that the defendant’s accomplice, rather than the defendant, delivered the fatal injuries, because it was clearly established that the defendant was present at the planning and execution of the murder and was therefore a principal. State v. Tokman, 564 So. 2d 1339, 1990 Miss. LEXIS 232 (Miss. 1990).

A criminal defendant was denied effective assistance of counsel where his attorney subpoenaed no witnesses until the day of trial, called only one witness, a police officer whom he questioned only briefly, submitted into evidence a police report that only reinforced the testimony of the State’s witness, failed to request a pre-trial suppression hearing concerning the “show-up” identification of the defendant, failed to file jury instructions, made absurd demands upon the State to produce at trial evidence that should have been available through discovery, made numerous argumentative outbursts with the bench and refused to follow rules and instructions of the court. Yarbrough v. State, 529 So. 2d 659, 1988 Miss. LEXIS 362 (Miss. 1988).

Preparation of witnesses and defendant for their testimony by counsel was sufficient to constitute effective assistance where, because alibi was offered, entire question for injury was witness credibility. Stringer v. Scroggy, 675 F. Supp. 356, 1987 U.S. Dist. LEXIS 11203 (S.D. Miss. 1987), aff'd, 862 F.2d 1108, 1988 U.S. App. LEXIS 17949 (5th Cir. Miss. 1988).

Ineffective assistance of counsel was not shown where defendant complained that counsel made absolutely no investigation of psychological evidence, while defendant submitted psychological evidence showing, inter alia, functional I.Q. of 73, lower academic I.Q., alcoholism, and genuine remorse for crime; as trial strategy, counsel could have judged that psychological report may have been harmful. Wiley v. State, 517 So. 2d 1373, 1987 Miss. LEXIS 2915 (Miss. 1987), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 610, 1988 U.S. LEXIS 2458 (U.S. 1988).

Failure of attorney to investigate background of former wife of defendant, who was important prosecution witness at defendant’s murder trial, did not constitute ineffective assistance of counsel where attorney had known defendant’s former wife’s family for many years and had interviewed her when he represented defendant in divorce action brought by her. Merritt v. State, 517 So. 2d 517, 1987 Miss. LEXIS 2875 (Miss. 1987).

Charge that counsel failed to interview prosecution witnesses did not constitute ineffective assistance of counsel where counsel attempted to talk with one witness who refused, adequately familiarized himself with report of doctor, and did not talk with another witness who lived out of state but who offered no testimony which surprised defense. Merritt v. State, 517 So. 2d 517, 1987 Miss. LEXIS 2875 (Miss. 1987).

118. – Failure to file motion for severance as ineffective assistance of counsel, assistance of counsel.

Defendant’s trial counsel was not ineffective because: (1) he filed a pre-trial motion to sever the two counts of rape and argued at the hearing that trying two counts together would be highly prejudicial to his client; (2) counsel conducted voir dire, which included instructing the jury as to the state’s burden of proof; (3) he objected to one of the state’s for-cause strikes, arguing that the potential juror said he could be fair and impartial despite the fact he had known defendant his entire life, with which the trial court agreed; (4) defense counsel cross-examined four of the state’s eight witnesses and seemingly made an effort to get some witnesses to contradict their prior testimony; (5) the defense chose not to call any witnesses; (6) defendant was thoroughly advised of his right to testify and he told the trial judge he did not want to testify; and (7) in closing, defense counsel did not rehash the damaging testimony against his client, but merely reminded the jury of the state’s heavy burden of proof and defendant’s presumption of innocence; given the strength of the state’s case against defendant, trial counsel provided reasonable, if not perfect, representation to his client. Golden v. State, 968 So. 2d 378, 2007 Miss. LEXIS 530 (Miss. 2007), cert. dismissed, 977 So. 2d 343, 2008 Miss. LEXIS 111 (Miss. 2008).

Inmate’s attorney was not ineffective, in connection with the inmate’s capital murder trial, for allowing the inmate to be tried jointly with co-defendant at both the guilt and penalty phases because (1) this issue was substantially addressed on direct appeal, and thus was barred in post-conviction proceedings under Miss. Code Ann. §99-39-21(2), and (2) in any event, the issue was without merit because the inmate and co-defendant insisted on being tried together. Smith v. State, 877 So. 2d 369, 2004 Miss. LEXIS 547 (Miss. 2004).

Trial counsel’s failure to file a motion for a severance did not constitute ineffective assistance of counsel where the defendant entered a guilty plea and failed to present any argument that supported his claim that had he gone to trial his defense would have been inconsistent or incompatible with the defenses claimed by his co-defendants. Blanch v. State, 760 So. 2d 820, 2000 Miss. App. LEXIS 227 (Miss. Ct. App. 2000).

119. – Filing motion for severence without permission, assistance of counsel.

Defendant failed to establish ineffective assistance of counsel based on counsel’s decision to request a severance without defendant’s permission since the decision benefited defendant as a co-defendant’s statement only further implicated defendant in the charged crimes; moreover, assistance of counsel was not shown to be insufficient as to failure to object where the record showed that defense counsel attempted to suppress the admission of defendant’s statement to police. Perkins v. State, 863 So. 2d 47, 2003 Miss. LEXIS 657 (Miss. 2003).

120. – Jury selection as instance of ineffective assistance of counsel, assistance of counsel.

Trial court properly denied defendant’s motion for post-conviction relief where defendant was not entitled to a jury of any particular racial composition; therefore, defendant could not show that counsel was deficient in failing to object to an all-white jury. It was impossible to prove that counsel’s objection to the jury composition would have created a different result if no original verdict was reached. Shumpert v. State, 983 So. 2d 1074, 2008 Miss. App. LEXIS 186 (Miss. Ct. App. 2008).

Defendant’s conviction for aggravated assault was appropriate because his counsel was not ineffective under the Sixth Amendment; his counsel actively participated in exercising peremptory challenges and striking jurors for cause, and further, the supreme court held that the defense was not prejudiced by a witness’s failure to appear. Harrell v. State, 947 So. 2d 309, 2007 Miss. LEXIS 22 (Miss. 2007).

Defendant’s counsel was not ineffective because a trial judge asked if any potential juror would automatically vote for or against the death penalty, and the trial judge requested that the attorneys not be redundant in their voir dire examination, keeping in mind the voir dire the court had conducted; honoring that request, defense counsel’s failure to pursue that line of questioning during voir dire did not constitute deficient performance that prejudiced the defense. Havard v. State, 928 So. 2d 771, 2006 Miss. LEXIS 90 (Miss. 2006), cert. denied, 549 U.S. 1119, 127 S. Ct. 931, 166 L. Ed. 2d 716, 2007 U.S. LEXIS 153 (U.S. 2007).

Defendant’s claims of ineffective assistance of counsel in his trial for tax evasion lacked merit; defendant failed to cite any authority supporting the claim that his counsel’s failure to request a change of venue demanded reversal. Defendant also failed to cite any authority to support his argument that defense counsel rendered ineffective assistance by failing to make a challenge during jury selection. King v. State, 897 So. 2d 981, 2004 Miss. App. LEXIS 689 (Miss. Ct. App. 2004), cert. denied, 896 So. 2d 373, 2005 Miss. LEXIS 224 (Miss. 2005).

Court found no ineffective assistance of counsel in the failure of attorneys for an inmate to object to the State’s use of peremptory strikes in connection with the inmate’s capital murder trial because (1) the inmate failed to show any prejudice, and (2) the attorneys could well have thought that the State had adequate race neutral reasons for the State’s strikes, and there was no requirement that the attorneys had to make motions that they did not believe would succeed. Smith v. State, 877 So. 2d 369, 2004 Miss. LEXIS 547 (Miss. 2004).

Issue raised at trial and on direct appeal from an inmate’s capital murder conviction concerning the exclusion of a juror for failing to meet the qualifications of Miss. Code Ann. §13-5-1 was found to be without merit, and the issue was therefore barred pursuant to Miss. Code Ann. §99-39-21(2); because the trial court committed no error in excusing this juror and another juror for not meeting the qualifications under Miss. Code Ann. §13-5-1, then the attorneys were not ineffective for failing to object to the jurors’ dismissal, and in any event, the attorneys’ decisions regarding the final composition of the jury were generally determined to be matters of trial strategy. Smith v. State, 877 So. 2d 369, 2004 Miss. LEXIS 547 (Miss. 2004).

Trial counsel’s failure to raise Batson challenges to the prosecution’s exercise of peremptory challenges was not ineffective representation of counsel as it was a tactical decision based on the counsel’s understanding of the law and the inmate’s concurrence that he did not wish to have his selection of the jury challenged. Bell v. State, 879 So. 2d 423, 2004 Miss. LEXIS 543 (Miss. 2004), cert. denied, 543 U.S. 1155, 125 S. Ct. 1301, 161 L. Ed. 2d 122, 2005 U.S. LEXIS 1594 (U.S. 2005).

Trial counsel failed to argue that the trial court erred in denying his request to to allow individually sequestered voir dire; however as the inmate failed to show that the request would have been allowed if the attorney had argued, or that a different jury panel would have resulted, the trial counsel’s failures did not constitute ineffective representation. Bell v. State, 879 So. 2d 423, 2004 Miss. LEXIS 543 (Miss. 2004), cert. denied, 543 U.S. 1155, 125 S. Ct. 1301, 161 L. Ed. 2d 122, 2005 U.S. LEXIS 1594 (U.S. 2005).

Inmate was not deprived of effective representation simply because the trial counsel did not ask questions that the inmate believed was necessary to cure the judge’s voir dire as the questions the inmate wanted his counsel to ask would have been redundant, and the inmate failed to show how he was prejudiced by his counsel’s voir dire. Bell v. State, 879 So. 2d 423, 2004 Miss. LEXIS 543 (Miss. 2004), cert. denied, 543 U.S. 1155, 125 S. Ct. 1301, 161 L. Ed. 2d 122, 2005 U.S. LEXIS 1594 (U.S. 2005).

Inmate was not deprived of effective representation because his trial counsel did not try to rehabilitate jurors who were excused because they stated they could not impose the death penalty due to religious reasons as the inmate failed to prove that the jurors could have been rehabilitated. Bell v. State, 879 So. 2d 423, 2004 Miss. LEXIS 543 (Miss. 2004), cert. denied, 543 U.S. 1155, 125 S. Ct. 1301, 161 L. Ed. 2d 122, 2005 U.S. LEXIS 1594 (U.S. 2005).

Inmate was not deprived of his right to effective representation because his trial counsel failed to excuse eight jury members who had relationships with the victim or his family or the law enforcement community, as mere acquaintance or even family relationships with parties or those related to parties is not sufficient to require that a juror be excused for cause. Bell v. State, 879 So. 2d 423, 2004 Miss. LEXIS 543 (Miss. 2004), cert. denied, 543 U.S. 1155, 125 S. Ct. 1301, 161 L. Ed. 2d 122, 2005 U.S. LEXIS 1594 (U.S. 2005).

Trial counsel’s failure to request jury questionnaires was not ineffective representation as the inmate failed to cite any legal authority that not requesting jury questionnaires was ineffective representation. Bell v. State, 879 So. 2d 423, 2004 Miss. LEXIS 543 (Miss. 2004), cert. denied, 543 U.S. 1155, 125 S. Ct. 1301, 161 L. Ed. 2d 122, 2005 U.S. LEXIS 1594 (U.S. 2005).

In a capital murder case, the inmate did not prove that he was prejudiced in any fashion by his attorneys’ decision not to assert a Batson challenge, which might have been sound trial strategy; thus, the inmate’s counsel were not ineffective for failing to challenge the State’s use of peremptory challenges to exclude African-American venire members. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

In a capital murder case, the inmate’s counsel were not ineffective for failing to rehabilitate a potential juror challenged as opposing the death sentence because the evidence showed that the juror was not excused based on her religious scruples or her views on the death penalty, but because she clearly indicated that she could not sit in judgment on someone if she had not seen the crime committed and that she could not return a verdict. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

In a capital murder case, the inmate’s counsel were not ineffective for removing a request for a special venire under Miss. Code Ann. §13-5-77 because nothing in the record indicated that the jury panel was insufficient or that a special venire was necessary. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

The record did not support the defendant’s contention that the failure of trial counsel to raise a Batson challenge rendered his counsel’s performance so ineffective as to merit a mistrial; given that the decision to make or not make a Batson challenge falls within trial counsel’s trial strategy and the wide latitude given him to which appellate courts must defer, it was entirely reasonable to presume that trial counsel was comfortable with that jury. Estes v. State, 782 So. 2d 1244, 2000 Miss. App. LEXIS 491 (Miss. Ct. App. 2000).

An agreement between defense counsel and the state that neither will object to the other’s exercise of its peremptory challenges, while outrageous and improper, does not constitute per se ineffective assistance of counsel; such conduct will constitute ineffective assistance of counsel only if the record shows that the agreement caused the state clearly and systematically to discriminate in the jury selection process. Wardley v. State, 760 So. 2d 774, 1999 Miss. App. LEXIS 553 (Miss. Ct. App. 1999), cert. denied, 2000 Miss. LEXIS 270 (Miss. Dec. 6, 2000).

Trial counsel’s failure to obtain gender neutral reasons for peremptory strike against female did not constitute ineffective assistance, where trial was held years before United States Supreme Court held that Batson rule applied to gender-based discrimination. Chase v. State, 699 So. 2d 521, 1997 Miss. LEXIS 320 (Miss. 1997).

Trial counsel’s failure to object to prosecutor’s exercise of challenges to jurors for cause and trial court’s upholding of these challenges did not constitute ineffective assistance, where Supreme Court, on direct appeal, considered matter on merits and found jurors were properly excused. Chase v. State, 699 So. 2d 521, 1997 Miss. LEXIS 320 (Miss. 1997).

Trial counsel’s failure to excuse juror, after challenge for cause was denied, with peremptory challenge did not constitute ineffective assistance, where counsel engaged in reasonable trial strategy by using last peremptory challenge on next person on venire, whose daughter may have been enrolled in day care where murder victim’s relative worked, whose father was highway patrol and whose uncle was murder victim in unrelated crime. Chase v. State, 699 So. 2d 521, 1997 Miss. LEXIS 320 (Miss. 1997).

Trial counsel’s failure to object to excusal of prospective jurors outside presence of jury did not constitute ineffective assistance, where capital murder defendant failed to show that he was prejudiced or that confidence in trial would be undermined because of counsel’s failure to object. Chase v. State, 699 So. 2d 521, 1997 Miss. LEXIS 320 (Miss. 1997).

Defendants were denied effective assistance of counsel where their trial counsel failed to question the jury panel during voir dire, failed to make an opening statement, failed to object to questionable identification testimony, placed into evidence a photograph of the defendants taken at the police station while they were wearing handcuffs, failed to call available alibi defense witnesses, failed to assure that the defendants were aware of their right to testify, admitted during closing argument that he had failed to bring his trial notes to court, and failed to present available mitigation evidence at sentencing. Moody v. State, 644 So. 2d 451, 1994 Miss. LEXIS 512 (Miss. 1994).

Trial counsel’s conduct did not constitute ineffective assistance of counsel where counsel failed to rehabilitate or object to jurors excluded for cause by prosecution based on their opposition to death penalty, because there was little direct authority for proposition that trial counsel has duty to rehabilitate jurors who have scruples against death penalty. Stringer v. Scroggy, 675 F. Supp. 356, 1987 U.S. Dist. LEXIS 11203 (S.D. Miss. 1987), aff'd, 862 F.2d 1108, 1988 U.S. App. LEXIS 17949 (5th Cir. Miss. 1988).

There was no merit to defendant’s claim of ineffective assistance of counsel based on counsel’s failure to object to exclusion of blacks from jury where guilt phase of trial was final before decision in Batson v. Kentucky (1986) 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. Wiley v. State, 517 So. 2d 1373, 1987 Miss. LEXIS 2915 (Miss. 1987), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 610, 1988 U.S. LEXIS 2458 (U.S. 1988).

121. – Failure to object to indictment as ineffectiveness of counsel, assistance of counsel.

Where indictments charging defendant with the sale of cocaine were not defective, there was no reason for defense counsel to object; hence, counsel was not ineffective. Hunt v. State, 11 So.3d 764, 2009 Miss. App. LEXIS 322 (Miss. Ct. App. 2009).

Defendant’s ineffective assistance claims against a court-appointed attorney failed where he failed to show how his defense was adversely affected by an indictment amendment that changed the date of the alleged burglaries. Logan v. State, 987 So. 2d 1027, 2008 Miss. App. LEXIS 190 (Miss. Ct. App. 2008), cert. denied, 999 So. 2d 852, 2009 Miss. LEXIS 45 (Miss. 2009).

Defense counsel was not ineffective for failing to object to defendant’s indictment because the indictment was not fatally defective and during the plea colloquy defendant stated under oath that he was satisfied with counsel’s performance and felt that it was effective. Morgan v. State, 966 So. 2d 204, 2007 Miss. App. LEXIS 545 (Miss. Ct. App. 2007).

There was no merit to the defendant’s assertion that his trial counsel was ineffective for failing to object to defects contained within the indictment where the defendant failed to identify any such defects and a review of the indictment failed to show any such defects. Blanch v. State, 760 So. 2d 820, 2000 Miss. App. LEXIS 227 (Miss. Ct. App. 2000).

Claims that defendant argued to be defects in the indictment were insufficient to show deficiency in his counsel’s performance or prejudice to his case. Westbrook v. State, 953 So. 2d 286, 2007 Miss. App. LEXIS 199 (Miss. Ct. App.), cert. dismissed, 962 So. 2d 38, 2007 Miss. LEXIS 436 (Miss. 2007).

The indictment as a whole gave the defendant fair notice of the charges against him and was legally sufficient; therefore, the failure of defense counsel to object to the indictment did not constitute ineffective assistance of counsel. Wiltcher v. State, 724 So. 2d 933, 1998 Miss. App. LEXIS 963 (Miss. Ct. App. 1998).

Counsel was not ineffective for failing to object to the absence of the word “knowing” in indictment for aggravated assault which charged that defendant wilfully and feloniously caused serious bodily injury. Moore v. State, 676 So. 2d 244, 1996 Miss. LEXIS 328 (Miss. 1996).

A defendant’s post-conviction claim of ineffective assistance of counsel, which was based on allegations that the defendant’s counsel failed to object to allegedly defective indictments and erroneously advised the defendant to plead guilty, was properly dismissed without the benefit of an evidentiary hearing because it was manifestly without merit where the defendant failed to allege with the “specificity and detail” required that his counsel’s performance was deficient and that the deficient performance prejudiced the defense, the facts alleged and the brief submitted were not supported by any affidavits other than his own, the indictments were not defective and therefore the defendant’s counsel could not be faulted for failing to challenge their validity, and the defendant failed to identify the “deficient and erroneous advice” of his counsel that allegedly resulted in his pleas of guilty. Brooks v. State, 573 So. 2d 1350, 1990 Miss. LEXIS 776 (Miss. 1990).

122. – Failure to object to evidence as ineffectiveness of counsel, assistance of counsel.

Counsel was not ineffective for failing to contest the evidence the State offered at sentencing to prove defendant’s habitual offender status because counsel contested his habitual offender status on grounds that his prior convictions did not constitute crimes of violence; the ineffective assistance claim based on the failure to contest Tony’s habitual offender status was moot because the sentences were vacated and due to plain error on separate grounds. Swinney v. State, 241 So.3d 599, 2018 Miss. LEXIS 8 (Miss. 2018).

Trial counsel was not deficient for failing to object or seek a mistrial in response to a police chief’s testimony that defendant had declined to be interviewed because the chief’s testimony was offered by the State merely to show its effect on how he proceeded with his investigation of the robbery; counsel was not deficient for choosing not to object, and defendant suffered no prejudice as a result, due to other direct evidence of his guilt. Swinney v. State, 241 So.3d 599, 2018 Miss. LEXIS 8 (Miss. 2018).

In a murder case, even if a statement was hearsay and should have been excluded, it was not probable that the outcome would have been different because of the overwhelming evidence of defendant’s guilt. Therefore, ineffective assistance of counsel was not shown. Hall v. State, — So.3d —, 2016 Miss. LEXIS 125 (Miss. Mar. 17, 2016).

Defendant’s ineffective assistance of counsel claim on direct appeal lacked merit where it was based on the admission of the engineer’s testimony into evidence, the trial court did not abuse its discretion in admitting that testimony, and thus, the record did not affirmatively show ineffective assistance. Fleming v. State, 179 So.3d 1160, 2015 Miss. App. LEXIS 201 (Miss. Ct. App.), rev'd, 179 So.3d 1115, 2015 Miss. LEXIS 611 (Miss. 2015).

In a case involving the sale of cocaine, trial counsel was not ineffective for allowing an agent to testify that defendant’s voice was on an audio recording because the agent’s testimony was not subject to the authentication requirements under Miss. R. Evid. 901, and the failure of the State to lay a predicate for the testimony was harmless error since the agent testified on cross-examination that he had personal knowledge of defendant’s voice. Moreover, even assuming that trial counsel’s elicitation of the agent’s previous dealings with defendant was so deficient as to meet the first prong of the test for ineffective assistance of counsel, plenty of other evidence existed to support the jury’s verdict. Liddell v. State, 7 So.3d 217, 2009 Miss. LEXIS 107 (Miss. 2009).

In an armed robbery case, counsel was not ineffective for failing to request a circumstantial-evidence instruction because defendant was pulled over thirty minutes after the robbery, and he was wearing a tan shirt and distinctive white tennis shoes similar to the clothing described by the employees as being worn by the robber. Furthermore, defendant had brown cotton gloves, a blue ski mask, a black duffel bag with rolled coins, various amounts of bills, and store receipts. Johnson v. State, 999 So. 2d 360, 2008 Miss. LEXIS 576 (Miss. 2008).

Appellate court rejected a prisoner’s claim that counsel provided ineffective assistance by failing to call an expert witness to testify at his probation revocation hearing about the levels of marijuana in the prisoner’s system because the prisoner did not show he was prejudiced by counsel’s alleged failure. Specifically, the prisoner was unable to demonstrate that the outcome of his probation revocation hearing would have been different, since the circuit court could have found, more likely than not, that the prisoner violated the terms of his probation by continuing to smoke marijuana. Wallace v. State, 982 So. 2d 1027, 2008 Miss. App. LEXIS 332 (Miss. Ct. App. 2008).

Defendant who was found guilty of attempted manufacture of methamphetamine under Miss. Code Ann. §41-29-313(1)(c) did not show ineffective assistance of counsel because counsel was not deficient in failing to object to a narcotics agent’s testimony that he had received complaints concerning defendant’s possible manufacture of methamphetamine, or to the agent’s description of the predominant method of manufacturing methamphetamine in the area. Myhand v. State, 981 So. 2d 988, 2007 Miss. App. LEXIS 544 (Miss. Ct. App. 2007), cert. denied, 981 So. 2d 298, 2008 Miss. LEXIS 225 (Miss. 2008).

In a case involving possession of cocaine with intent to distribute, defendants did not receive ineffective assistance of counsel based on a failure to object to testimony regarding the value and packaging of cocaine and the failure to request a balancing under Miss. R. Evid. 403 regarding evidence of an undercover drug sale; a different result would not have likely resulted based upon the evidence against defendants. Dixon v. State, 953 So. 2d 1117, 2006 Miss. App. LEXIS 434 (Miss. Ct. App. 2006), aff'd, 953 So. 2d 1108, 2007 Miss. LEXIS 210 (Miss. 2007).

Defendant’s counsel was not ineffective during defendant’s trial for murdering his ex-wife and daughter because despite defendant’s contentions, the record showed that counsel did object to the testimony of defendant’s six-year-old son and to the introduction of autopsy photographs of the victims. Richardson v. State, 918 So. 2d 760, 2005 Miss. App. LEXIS 295 (Miss. Ct. App. 2005).

Defense counsel was not ineffective for failing to object to defendant’s statements that he made to law enforcement being entered into evidence where defendant’s statements consisted of his version of an alleged sexual battery incident as well as two prior interactions with the victim; the statements supported defendant’s theory of the case, namely that he was looking for a dog on the bed and touched the seven-year-old victim accidentally. McClure v. State, 941 So. 2d 896, 2006 Miss. App. LEXIS 818 (Miss. Ct. App. 2006).

Although defendant claimed that his counsel was deficient because his attorney failed to object to the admission of the cocaine found on defendant, since the officer stated that the cocaine and its packaging all appeared the same as it did on the day he seized it, defendant’s counsel did not object; defendant’s counsel’s decision not to object to the admission of the cocaine into evidence was not ineffective assistance of counsel. Williams v. State, 907 So. 2d 1016, 2005 Miss. App. LEXIS 306 (Miss. Ct. App. 2005).

Where defendant argued that defense counsel engaged in ineffective assistance of counsel under Miss. Const. Art. III, § 26 and U.S. Const. Amend. VI by failing to object to testimony regarding a hearsay statement that powder cocaine had been recovered from defendant when arrested, defendant was not prejudiced, as there was substantial other testimony on this point. Walker v. State, 880 So. 2d 1074, 2004 Miss. App. LEXIS 765 (Miss. Ct. App. 2004).

Defendant’s claim that his trial counsel was ineffective failed, as (1) even assuming counsel should have objected to evidence that defendant possessed drug paraphernalia, about which he was not charged, defendant was not prejudiced because the other evidence was sufficient to convict him of cocaine possession; and (2) had counsel sought to suppress cocaine found in defendant’s truck, he would have been unsuccessful. McKee v. State, 878 So. 2d 232, 2004 Miss. App. LEXIS 171 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 961 (Miss. 2004).

Defense counsel at the evidence suppression hearing was not ineffective because the defense counsel’s performance regarding the admissibility and voluntariness of the defendant’s statements and the credibility of the interrogation were not deficient and the defendant was not therefore prejudiced by the defense counsel’s actions. Powers v. State, 883 So. 2d 20, 2003 Miss. LEXIS 850 (Miss. 2003), cert. denied, 543 U.S. 1155, 125 S. Ct. 1297, 161 L. Ed. 2d 121, 2005 U.S. LEXIS 1584 (U.S. 2005).

Trial counsel’s failure to raise meritless objections could not be considered ineffective assistance of counsel because no prejudice could result from such an omission. Simon v. State, 857 So. 2d 668, 2003 Miss. LEXIS 447 (Miss. 2003), cert. denied, 541 U.S. 977, 124 S. Ct. 1885, 158 L. Ed. 2d 475, 2004 U.S. LEXIS 2641 (U.S. 2004).

In a capital murder case, the inmate’s attorneys did attempt to limit the victim impact evidence and asked for a continuing objection to the prosecutor’s line of questioning, but the jury was entitled to know who the victim was and what impact her death had on her family; thus, the admission of the victim’s family’s testimony was proper and the inmate’s counsel were not ineffective for failing to limit the State’s use of victim impact evidence at trial and during the final argument. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

In a capital murder case, the inmate’s counsel were not ineffective for failing to challenge the testimony of the county sheriff who was in charge of the investigation of the inmate because (1) the trial court’s refusal to admit evidence of the sheriff’s conviction seven years after his testimony in the inmate’s case was not an abuse of discretion under Miss. R. Evid. 609(a)(1); (2) the sheriff’s prior testimony was admissible under Miss. R. Evid. 804; (3) the inmate’s confrontation clause rights were not violated because he had been present when the testimony was given and was able to confront the sheriff; and (4) evidence from a civil lawsuit involving one of the sheriff’s deputies could have done little harm to the sheriff’s credibility. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

Defense counsel’s failure to make a motion to suppress defendant’s statement during a murder trial did not amount to ineffective assistance of counsel because it constituted trial strategy. Johnson v. State, 876 So. 2d 387, 2003 Miss. App. LEXIS 943 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 66, 2004 Miss. LEXIS 881 (Miss. 2004).

Defense counsel’s failure to object to the admission of a pipe as a murder weapon did not amount to ineffective assistance of counsel because a proper predicate was laid for the introduction of the pipe; the evidence showed that defense counsel attempted to discredit the evidence by exploiting the absence of physical and forensic evidence linking the pipe to the murder. Johnson v. State, 876 So. 2d 387, 2003 Miss. App. LEXIS 943 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 66, 2004 Miss. LEXIS 881 (Miss. 2004).

Defense counsel’s failure to object to the admission of autopsy photographs did not constitute ineffective assistance of counsel; the evidence showed that the pictures were not particularly gruesome, and their probative value outweighed any prejudicial effect that they might have had. Johnson v. State, 876 So. 2d 387, 2003 Miss. App. LEXIS 943 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 66, 2004 Miss. LEXIS 881 (Miss. 2004).

Trial counsel was not constitutionally ineffective in questioning the defendant about his prior convictions and in failing to move to suppress them prior to trial where the record showed that the trial judge instructed the defendant that his prior convictions could be brought out for the purpose of impeaching his credibility as a witness; although it was not clear why trial counsel elected to bring out the prior convictions, his strategy might have been to preempt the prosecution from bringing them out and the weight of the evidence was such that the defendant would have nevertheless been convicted. Coleman v. State, 788 So. 2d 788, 2000 Miss. App. LEXIS 551 (Miss. Ct. App. 2000).

Defense counsel’s alleged failure to respond appropriately to the introduction of various kinds of evidence that were alleged to be so prejudicial that failure to object revealed inadequacy of representation did not constitute ineffective assistance of counsel. Forbes v. State, 771 So. 2d 942, 2000 Miss. App. LEXIS 319 (Miss. Ct. App. 2000).

The right to a vigorous defense does not include the right to insist that defense counsel pursue facially-invalid objections or file motions having no arguable chance for success. Bell v. State, 733 So. 2d 372, 1999 Miss. App. LEXIS 56 (Miss. Ct. App. 1999).

Defense counsel was not deficient in failing to object to inadmissible evidence, namely money recovered from the defendant and a cash register receipt recovered from his car, since probable cause existed to search both the defendant and his car, the money was never introduced into evidence, and the cash register receipt was introduced into evidence but was properly authenticated when the chief of police testified that he was present when the vehicle was searched, that the receipt was found on the driver’s seat of the vehicle, and that the receipt was taken to the victim’s house and compared to the groceries she bought. Pickens v. State, 1998 Miss. App. LEXIS 919 (Miss. Ct. App. Oct. 27, 1998).

Questions regarding prior instances of sexual intercourse between the defendant and the 10 year old victim were probative and admissible and, therefore, the failure of defense counsel to object to such questions did not constitute ineffective assistance of counsel in the defendant’s prosecution for rape. Wiltcher v. State, 724 So. 2d 933, 1998 Miss. App. LEXIS 963 (Miss. Ct. App. 1998).

The court properly rejected the contention that the defendant was denied effective assistance of counsel on the basis that his attorney failed to object to hearsay testimony by a detective that the defendant was in a rage and arguing with the victim since it could not be said that a mere objection to that testimony would have changed the outcome of the trial. Walters v. State, 720 So. 2d 856, 1998 Miss. LEXIS 393 (Miss. 1998).

Trial counsel’s failure to object to evidence of other crimes and eliciting evidence of other crimes did not constitute ineffective assistance, where allowing jury to know that defendant had engaged in some petty thievery was not out of line with strategy of showing that it was not credible to claim that defendant, a petty thief, suddenly became a murderer while codefendant, who was prone to violence, did not. Chase v. State, 699 So. 2d 521, 1997 Miss. LEXIS 320 (Miss. 1997).

Trial counsel’s failure during guilt phase to object to introduction of photograph of murder victim’s house and of victim did not constitute ineffective assistance; few times Supreme Court has ever reversed due to admission of gruesome photographs revealed that this would have been futile objection. Chase v. State, 699 So. 2d 521, 1997 Miss. LEXIS 320 (Miss. 1997).

Trial counsel’s failure to object to cross-examination of witness who testified that capital murder defendant grew up in teachings of church did not constitute ineffective assistance, where defendant sought to use religion to bolster his position and defendant’s credibility was impeached through witness. Chase v. State, 699 So. 2d 521, 1997 Miss. LEXIS 320 (Miss. 1997).

Petitioner’s claim that his counsel failed to adequately argue motion to suppress evidence that was obtained in violation of his Fourth Amendment rights or to raise that issue on appeal would be remanded for district court to consider whether counsel was professionally deficient in failing to successfully move to suppress evidence and to determine whether exclusion of that evidence would have had effect on outcome of petitioner’s case, so as to establish cause and prejudice for procedural default. Martin v. Maxey, 98 F.3d 844, 1996 U.S. App. LEXIS 28836 (5th Cir. Miss. 1996).

In a prosecution for possession of cocaine with intent to distribute, the defendant’s trial counsel was not constitutionally ineffective for failing to object to allegedly inadmissible testimony portraying the defendant as a drug dealer where the attorney’s failure to object to the testimony in question might reasonably have been trial strategy related to a “personal vendetta” defense since the attorney argued from the time of opening statements that a deputy sheriff had a vendetta against the defendant and there was support for the “vendetta” defense throughout the trial record, the attorney could have concluded that any objections to the testimony in question would have magnified the comments to the detriment of the defendant, and the defendant failed to demonstrate any prejudice as there was eyewitness testimony which was “sufficient to have absolutely sealed his fate with the jury.” Edwards v. State, 615 So. 2d 590, 1993 Miss. LEXIS 97 (Miss. 1993).

In a prosecution for possession of cocaine with intent to distribute, the defendant’s trial counsel was not constitutionally ineffective for failing to object to an admission made by the defendant at the scene of his arrest concerning his involvement in trafficking drugs where the admission was unsolicited, voluntary, and spontaneous, and the defendant’s attorney could have reasonably expected any objection to be futile. Edwards v. State, 615 So. 2d 590, 1993 Miss. LEXIS 97 (Miss. 1993).

A burglary defendant was not deprived of his constitutional right to effective assistance of counsel on the ground that his trial counsel failed to object to leading questions about the homes that were burglarized where the questions asked by the prosecutor could have been rephrased to elicit the same testimony, and therefore the defendant did not suffer any disadvantage because of the failure to object. Jackson v. State, 614 So. 2d 965, 1993 Miss. LEXIS 75 (Miss. 1993).

A defendant was denied his right to effective assistance of counsel by his attorney’s failure to object to testimony submitted by the State that his accomplice had been tried and found guilty on the same offense for which the defendant was being tried, since the testimony was highly prejudicial and its admission was reversible error. Johns v. State, 592 So. 2d 86, 1991 Miss. LEXIS 874 (Miss. 1991).

In prosecution for possession with intent to distribute marijuana, even though performance at trial by defendant’s counsel may have been deficient, in view of, inter alia, failure to object to damaging hearsay testimony and allowing defendant to testify in own behalf and further incriminate himself, there was nevertheless sufficient evidence to support conviction, and therefore allegedly deficient performance did not prejudice defense under Strickland v. Washington (1984) 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and Leatherwood v. State (1985, Miss.) 473 So. 2d 964. Alexander v. State, 503 So. 2d 235, 1987 Miss. LEXIS 2359 (Miss. 1987).

122.5. —Failure to object to admission of confession.

Defendant did not show that trial counsel rendered ineffective assistance of counsel by failing to object to the admission of his confession and to present an accomplice’s testimony because the trial court could have relied on or rejected the accomplice’s testimony; because officers testified that neither defendant nor the accomplice had asked for an attorney at any time, their testimony supported the trial court’s finding that defendant’s rights waiver was knowing, intelligent, and voluntary. Pace v. State, 242 So.3d 107, 2018 Miss. LEXIS 199 (Miss. 2018).

123. – Failure to call witnesses as ineffectiveness of counsel, assistance of counsel.

In a statutory rape case, counsel was not deficient in failing to seek suppression of a statement that defendant made to police based on relevance grounds; even though the statement did not include the name of the person defendant had sexual relations with or the date of the encounter, it was highly probative of his guilt. At the time the statement was made, defendant was being questioned about his encounter with the victim, and his statement was corroborative of the statement the victim made. Giles v. State, 187 So.3d 116, 2016 Miss. LEXIS 122 (Miss. 2016).

Counsel was not ineffective for allegedly failing to properly consult with a DNA expert, failing to consult a serologist, and failing to adequately investigate DNA testing because a review of the cross-examination of the witness from the facility that performed the DNA testing for the state by defense counsel easily allowed one to draw the conclusion that a defense expert assisted counsel in preparation for cross-examination, and the inmate could not show that counsel was deficient. Thorson v. State, 994 So. 2d 707, 2007 Miss. LEXIS 497 (Miss. 2007).

In a death penalty case, counsel was not ineffective for failing to obtain expert testimony to show that the victim’s body position was “staged” because it was doubtful that expert testimony regarding the positioning of the body would have likely resulted in a different verdict; the victim was found nude from the waist down with her shorts and underwear bunched at one ankle, as well as with five gunshot wounds to her head. Powers v. State, 945 So. 2d 386, 2006 Miss. LEXIS 585 (Miss. 2006), cert. denied, 551 U.S. 1149, 127 S. Ct. 3006, 168 L. Ed. 2d 733, 2007 U.S. LEXIS 8389 (U.S. 2007).

Counsel was not ineffective for failing to present evidence in mitigation of the death penalty because an expert testified about the petitioner’s mental retardation, the petitioner’s mother was also questioned regarding the petitioner’s mental retardation, and therefore counsel placed the issue of the petitioner’s mental retardation before the jury for purposes of mitigation. Scott v. State, 938 So. 2d 1233, 2006 Miss. LEXIS 534 (Miss. 2006), overruled, Lynch v. State, 951 So. 2d 549, 2007 Miss. LEXIS 34 (Miss. 2007).

Counsel was not ineffective for failing to call an expert as a witness because there was no indication that the outcome of defendant’s murder trial would have been different; the expert, a psychologist, discussed at length that defendant had a clear understanding of the trial process and knew the difference between right and wrong. Brown v. State, 936 So. 2d 447, 2006 Miss. App. LEXIS 597 (Miss. Ct. App. 2006).

Defendant did not receive ineffective assistance of counsel during his trial for breaking and entering; counsel was not deficient in failing to subpoena two of the State’s witnesses who did not even testify at trial against defendant. Roach v. State, 938 So. 2d 863, 2006 Miss. App. LEXIS 102 (Miss. Ct. App.), cert. denied, 937 So. 2d 450, 2006 Miss. LEXIS 600 (Miss. 2006).

Where defendant’s counsel clearly presented the defendant’s version of events, and a pretrial statement made by defendant to police, which was entered into evidence, allowed the jury to hear his version of the events despite his decision not to testify in his own defense, and defendant did not state what witnesses should have been called, or what additional evidence his counsel could have presented at trial, when viewed in the totality of the circumstances, the actions of defendant’s counsel constituted reasonable trial strategy, and defendant did not meet his burden on appeal of showing how his counsel’s decision not to call witnesses at trial was deficient performance. Townsend v. State, 933 So. 2d 986, 2005 Miss. App. LEXIS 1005 (Miss. Ct. App. 2005), cert. denied, 933 So. 2d 982, 2006 Miss. LEXIS 371 (Miss. 2006).

In a capital murder case, defendant did not receive ineffective assistance of counsel because of a failure to present witnesses during sentencing where defendant chose not to testify and failed to present any evidence regarding other witnesses that could have been called; moreover the decision was tactical, since calling defendant’s mother would have opened the door to damaging testimony about drugs and gangs. Le v. State, 913 So. 2d 913, 2005 Miss. LEXIS 151 (Miss.), cert. denied, 546 U.S. 1004, 126 S. Ct. 622, 163 L. Ed. 2d 508, 2005 U.S. LEXIS 8254 (U.S. 2005).

Under a Strickland analysis, there was a sufficient basis to conclude that defendant’s attorney’s performance was deficient and that with the alibi witnesses’ testimony there was a reasonable probability that the outcome of the trial would have been different if some minimal pretrial investigation had been performed; defendant’s attorney’s conduct so undermined the proper functioning of the adversarial process that the trial court could not be relied on as having produced a just result. Ransom v. State, 918 So. 2d 710, 2004 Miss. App. LEXIS 972 (Miss. Ct. App. 2004), rev'd, 919 So. 2d 887, 2005 Miss. LEXIS 595 (Miss. 2005).

None of the evidence to which the State’s expert witnesses testified, including the DNA and blood, co-defendant’s clothing, or the wood, directly linked defendant to the victim’s murder; thus, there was no need for a DNA expert. Therefore, trial counsel was not ineffective for failing to request a DNA expert to testify. Branch v. State, 882 So. 2d 36, 2004 Miss. LEXIS 586 (Miss. 2004), cert. denied, 544 U.S. 907, 125 S. Ct. 1595, 161 L. Ed. 2d 282, 2005 U.S. LEXIS 2289 (U.S. 2005).

Trial counsel’s failure to secure a ballistics expert was not ineffective representation as a ballistics expert would not aid in the determination of which bullet proved fatal or who served as the principal in the crime. Bell v. State, 879 So. 2d 423, 2004 Miss. LEXIS 543 (Miss. 2004), cert. denied, 543 U.S. 1155, 125 S. Ct. 1301, 161 L. Ed. 2d 122, 2005 U.S. LEXIS 1594 (U.S. 2005).

Trial counsel’s failure to call two potential alibi witnesses was not ineffective representation as the decision not to call the witnesses was trial strategy due to the lack of benefit the witnesses would provide and issues of credibility. Bell v. State, 879 So. 2d 423, 2004 Miss. LEXIS 543 (Miss. 2004), cert. denied, 543 U.S. 1155, 125 S. Ct. 1301, 161 L. Ed. 2d 122, 2005 U.S. LEXIS 1594 (U.S. 2005).

In a prosecution for distribution of a controlled substance, it was not ineffective assistance of counsel to fail to call the defendant to testify where, in a previous similar prosecution in which the same counsel represented the defendant, the defendant raised the defense of entrapment and testified on his own behalf that he was forced to traffic in marijuana because the only other way he could support his family was to rob a bank. Sayre v. Anderson, 238 F.3d 631, 2001 U.S. App. LEXIS 476 (5th Cir. Miss. 2001).

It was impossible to conclude from the record that defense counsel could have been constitutionally ineffective in failing to allow the defendant to testify where there was no evidence in the record that he ever desired to testify at trial and there was nothing noted in the record to doubt the honesty of his attorneys in reporting his choice not to participate in the trial. Chancellor v. State, 745 So. 2d 857, 1998 Miss. App. LEXIS 1074 (Miss. Ct. App. 1998).

Trial counsel’s failure to subpoena individual for hearing on capital murder defendant’s motion for new trial did not constitute ineffective assistance, where individual refused to voluntarily appear and testify and counsel could have made conscious strategic decision not to present individual but to proceed solely with her affidavit. Chase v. State, 699 So. 2d 521, 1997 Miss. LEXIS 320 (Miss. 1997).

Defendants’ claim of ineffective assistance of counsel based on allegation that if they had known that their attorneys would not call any witnesses, they would have themselves testified, amounted to a sham, and therefore defendants were not entitled to evidentiary hearing to set aside validly imposed sentences based upon this claim, considering that, prior to testimony commencing, trial judge made detailed and lengthy presentation to defendants on subject of their right to testify and defendants affirmatively responded to judge’s questions as to whether they understood that they had right to testify regardless of what any other person wished or ordered them to do. King v. State, 679 So. 2d 208, 1996 Miss. LEXIS 430 (Miss. 1996).

Defense counsel’s failure to place murder defendant on stand to testify did not constitute ineffective assistance of counsel, where defendant personally waived her right to testify and defendant’s version of events was already before jury. Rhodes v. State, 676 So. 2d 275, 1996 Miss. LEXIS 318 (Miss. 1996).

Viewed as a whole, it was ineffective assistance for defense counsel to fail to subpoena possible witnesses, to fail to seek a continuance until he could interview every possible eyewitness, to fail to seek special venire, to fail to raise Batson, which prohibits peremptory challenges based solely on race, and to fail to seek jury instruction specifically embracing facts that defendant and witness testified occurred, which would have made killing excusable accident. Triplett v. State, 666 So. 2d 1356, 1995 Miss. LEXIS 597 (Miss. 1995).

Defense counsel’s failure to subpoena possible witnesses, to seek a continuance until he could interview every possible eyewitness, to seek special venire, to raise Batson, which prohibits peremptory challenges based solely on race, and to seek jury instruction specifically embracing facts that defendant and witness testified occurred, which would have made killing excusable accident, was prejudicial to defendant. Triplett v. State, 666 So. 2d 1356, 1995 Miss. LEXIS 597 (Miss. 1995).

124. –Failure to object to argument of state as ineffectiveness of counsel, assistance of counsel.

Post-conviction relief was denied because defendant did not receive ineffective assistance of counsel based on a failure to object to a prosecutor’s closing argument since references to defendant’s possible escape from prison did not compromise his right to a fair trial; moreover, the prosecutor did not “ramble on and on” about his personal experiences. Howard v. State, 945 So. 2d 326, 2006 Miss. LEXIS 531 (Miss. 2006), cert. denied, 552 U.S. 829, 128 S. Ct. 49, 169 L. Ed. 2d 43, 2007 U.S. LEXIS 9278 (U.S. 2007).

Defendant failed to show that his trial counsel was ineffective because (1) a circumstantial evidence instruction would not have been proper under the facts of the case, and the failure of trial counsel to request such an instruction was not error; (2) the failure of counsel to object to the prior statement of an alleged accomplice as hearsay was not error because the trial court properly allowed the former statement of the accomplice to be used for impeachment, and any objection to hearsay by trial counsel would not have resulted in any change in the outcome; and (3) trial counsel did not err in not requesting a lesser-included offense instruction of receiving stolen property because his theory and defense were that the State did not prove its case, and an all or nothing – guilty or acquittal – trial strategy was proper. Long v. State, 934 So. 2d 313, 2006 Miss. App. LEXIS 192 (Miss. Ct. App.), cert. dismissed, 939 So. 2d 805, 2006 Miss. LEXIS 610 (Miss. 2006).

Defendant emphasized his attorney’s failure to file motions to dismiss on the grounds of due process and speedy trial violations in arguing his counsel’s ineffectiveness. However, he signed the guilty plea petition as evidenced by the exhibit he provided attached to his appellate brief and the latter issue was without merit; in addition, he did not assert any critical evidence that would have been discovered had it not been for counsel’s alleged deficiencies, and he failed to object to counsel’s representation when given the opportunity. Dearman v. State, 910 So. 2d 708, 2005 Miss. App. LEXIS 189 (Miss. Ct. App. 2005).

Where defense counsel did not object to the prosecutor’s reference in closing arguments to defendant’s post-arrest silence, defendant’s claim of ineffective assistance of counsel under Miss. Const. Art. III, § 26 and U.S. Const. Amend. VI failed; defendant was not prejudiced by the prosecutor’s brief mention of defendant’s silence, as the statement did not constitute plain error affecting a fundamental right. Walker v. State, 880 So. 2d 1074, 2004 Miss. App. LEXIS 765 (Miss. Ct. App. 2004).

Inmate’s attorneys were not ineffective, in connection with the inmate’s capital murder trial, for failing to object to certain prosecutorial statements made during closing argument at the guilt phase because (1) the issue was raised on direct appeal and was found to be without merit, and thus the issue was barred under Miss. Code Ann. §99-39-21(2), and (2) in any event, the comments made were within the wide latitude granted in an attorney’s closing argument. Smith v. State, 877 So. 2d 369, 2004 Miss. LEXIS 547 (Miss. 2004).

In a capital murder case, the State’s invocation of higher biblical law did not violate the inmate’s rights under the Eighth and Fourteenth Amendments, or under Miss. Const. Art. 3, § 14, because the prosecutor was responding to the biblical argument made by the inmate’s attorney; also, the inmate’s ineffective assistance of counsel claim for counsels’ failure to object to the State’s biblical references had to fail. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

Trial counsel’s failure to object to portion of state’s closing argument during sentencing phase of capital murder prosecution did not constitute ineffective assistance; although state said that victims and surrounding community would be affected by jury’s decision, state never used words “send a message” to jury and state never said jury had duty to return verdict of death, but stated that if state failed to prove that defendant was one who fired fatal shot, then jury was required to return life verdict. Chase v. State, 699 So. 2d 521, 1997 Miss. LEXIS 320 (Miss. 1997).

Trial counsel’s failure to object to portion of state’s closing argument during sentencing phase of capital murder prosecution that was allegedly part of victim impact statement did not constitute ineffective assistance; such argument is not prohibited. Chase v. State, 699 So. 2d 521, 1997 Miss. LEXIS 320 (Miss. 1997).

Trial counsel’s failure to object to prosecutor’s expression during voir dire and closing arguments of personal opinion as to defendant’s guilt did not constitute ineffective assistance. Chase v. State, 699 So. 2d 521, 1997 Miss. LEXIS 320 (Miss. 1997).

Trial counsel’s failure to object to prosecutor’s closing argument in guilt phase in which prosecutor attempted to connect pair of shoes and pair of jeans with capital murder defendant because blood on them was proof that person wearing them fired fatal shot did not constitute ineffective assistance, where such evidentiary conclusion could by supported by expert testimony or could be within common sense abilities of jury. Chase v. State, 699 So. 2d 521, 1997 Miss. LEXIS 320 (Miss. 1997).

Trial counsel’s argument during guilt phase of capital murder prosecution that defendant was guilty, but questioning whether he was as guilty as codefendant, did not constitute ineffective assistance, where defendant testified that he helped tie up victim, helped codefendant look for guns and/or money, helped codefendant take rifle out and helped codefendant load stolen guns into vehicle after other victim was shot. Chase v. State, 699 So. 2d 521, 1997 Miss. LEXIS 320 (Miss. 1997).

A murder defendant was not denied her Sixth Amendment right to the effective assistance of counsel due to her attorney’s failure to object to statements made by the prosecution in their closing argument, referring to the fact that the victim was not present at trial to explain the events surrounding the killing, since it was reasonable for the prosecution to argue that the victim was no longer in existence in a murder trial in which the jury was required to determine whether the killing was justified. Hiter v. State, 660 So. 2d 961, 1995 Miss. LEXIS 333 (Miss. 1995).

Claim of ineffective assistance of counsel based on counsel’s failure to object to closing argument of prosecutor at sentencing phase was rejected, such failure to object being presumed to be strategic, and presumption having not been rebutted. Additionally, in light of wide range of permissible argument, it was court’s opinion that arguments were within proper parameters. Wiley v. State, 517 So. 2d 1373, 1987 Miss. LEXIS 2915 (Miss. 1987), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 610, 1988 U.S. LEXIS 2458 (U.S. 1988).

125. – Failure to object to or request instructions as ineffectiveness of counsel, assistance of counsel.

Trial counsel was not deficient for choosing not to object to a jury instruction because the instruction was favorable to the defense. Swinney v. State, 241 So.3d 599, 2018 Miss. LEXIS 8 (Miss. 2018).

Defendant’s ineffective assistance of counsel claim based on failure to object to a prima facie evidence instruction failed as defendant could not show a reasonable probability that one instruction altered the result. Wilson v. State, 198 So.3d 408, 2016 Miss. App. LEXIS 149 (Miss. Ct. App.), cert. denied, 202 So.3d 616, 2016 Miss. LEXIS 368 (Miss. 2016).

Defendant’s ineffective assistance of counsel claim failed where the jury was able to consider witness testimony as to whether defendant was guilty of receiving stolen property, and thus, defendant was not prejudiced by the failure to request an alibi instruction. Wilson v. State, 198 So.3d 408, 2016 Miss. App. LEXIS 149 (Miss. Ct. App.), cert. denied, 202 So.3d 616, 2016 Miss. LEXIS 368 (Miss. 2016).

In a burglary prosecution, defense counsel was not ineffective for failing to request a circumstantial-evidence instruction; because the State produced direct evidence of the gravamen of the offense, defendant had not been entitled to such an instruction. Grayer v. State, 2013 Miss. LEXIS 187 (Miss. May 2, 2013), op. withdrawn, sub. op., 120 So.3d 964, 2013 Miss. LEXIS 370 (Miss. 2013).

Defense counsel was not ineffective for not objecting to a jury instruction, which contained language that differed from the language of the indictment, because the instruction did not accuse defendant of any other separate or distinct crime other than that of the indictment, nor did it refer to facts of which defendant had no notice; the variance was not material. Nix v. State, 8 So.3d 141, 2009 Miss. LEXIS 74 (Miss. 2009).

Defendant’s claim of ineffective counsel in a murder trial failed because the jury instructions were proper and requesting a jury instruction on manslaughter that was commonly given on the prosecution’s request was permissible trial strategy to try to ensure that the jury knew they were not required to find murder, and that a lesser offense was available when there was strong evidence that defendant shot the victim. Mullen v. State, 986 So. 2d 320, 2007 Miss. App. LEXIS 605 (Miss. Ct. App. 2007), cert. denied, 987 So. 2d 451, 2008 Miss. LEXIS 559 (Miss. 2008).

Defendant who was found guilty of attempted manufacture of methamphetamine under Miss. Code Ann. §41-29-313(1)(c) did not show ineffective assistance of counsel because counsel was not deficient in failing to request a jury instruction as to possession of precursor chemicals because the punishment for that crime was exactly the same as the one for attempted manufacture of methamphetamine. Myhand v. State, 981 So. 2d 988, 2007 Miss. App. LEXIS 544 (Miss. Ct. App. 2007), cert. denied, 981 So. 2d 298, 2008 Miss. LEXIS 225 (Miss. 2008).

Defendant failed to present a prima facie demonstration of ineffective assistance of counsel where there was no indication that the jury would return a verdict of “not guilty” had the jury instruction contained the cumulative language defendant suggested; the jury understood that it was to remain suspicious of the witness’s testimony and to weigh it with care. Dear v. State, 960 So. 2d 542, 2006 Miss. App. LEXIS 931 (Miss. Ct. App. 2006), cert. denied, 959 So. 2d 1051, 2007 Miss. LEXIS 396 (Miss. 2007).

Because defendant denied at trial that he assaulted the deputy in any way, a jury instruction on self-defense was not supported by the record; thus, his trial counsel’s performance was not deficient by failing to request a self-defense jury instruction. Burnside v. State, 882 So. 2d 212, 2004 Miss. LEXIS 1160 (Miss. 2004).

Where defendant asserted that defense counsel was ineffective under Miss. Const. art. III, § 26 and U.S. Const. amend. VI for failing to object to the prosecution’s use of leading questions on direct examination, the claim failed; defendant was not prejudiced, as leading questions did not create so distorted an evidentiary presentation as to deny defendant a fair trial. Walker v. State, 880 So. 2d 1074, 2004 Miss. App. LEXIS 765 (Miss. Ct. App. 2004).

Inmate’s attorneys were not ineffective, in connection with the inmate’s capital murder trial, for failing to make an objection to an instruction that death could be imposed if aggravating and mitigating circumstances were of equal weight because as the direct claim was found to be without merit, there could be no claim that the attorneys were ineffective in failing to object to what was an acceptable instruction. Smith v. State, 877 So. 2d 369, 2004 Miss. LEXIS 547 (Miss. 2004).

Inmate’s attorneys were not ineffective, in connection with the inmate’s capital murder trial, for not requesting an amendment to sentencing instructions because (1) the issue was raised on direct appeal and was found to be without merit, and thus the issue was barred under Miss. Code Ann. §99-39-21(2), and (2) in any event, there was no showing of deficient performance. Smith v. State, 877 So. 2d 369, 2004 Miss. LEXIS 547 (Miss. 2004).

Because the jury impaneled for the inmate’s resentencing was charged with weighing the aggravating circumstances against any mitigating circumstances in the capital murder trial, the criminal proceeding was not inconsistent with Apprendi and Ring and, thus, the sentencing instructions were not unconstitutional; because the use of those jury instructions was permissible and any objection to them made by defense counsel would likely have been overruled, the inmate’s attorneys could not be considered deficient for failing to argue that the use of the instructions was unconstitutional and, thus, any ineffective assistance of counsel claim failed. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

The defendant was not denied effective assistance of counsel when his trial counsel failed to submit a jury instruction on the defendant’s theory of mistaken identification since defense counsel’s decision to forego a request for an identification instruction may well have been the result of trial strategy as, during closing argument, defense counsel argued lack of identification of the defendant by anyone other than the victim and pointed out what he considered to be discrepancies in her testimony. Thomas v. State, 766 So. 2d 809, 2000 Miss. App. LEXIS 397 (Miss. Ct. App. 2000).

The defendant was entitled leave to proceed on his claim that his counsel was ineffective in the sentencing phase as he failed to investigate the existence of character witnesses and inadequately prepared and examined the ones present. Davis v. State, 743 So. 2d 326, 1999 Miss. LEXIS 224 (Miss. 1999).

Although defense counsel improperly failed to object to a jury instruction that had been long condemned by the Mississippi Supreme Court, the defendant failed to show ineffective assistance of counsel since there was substantial evidence that he acted with malice in killing the victim and, therefore, the trial was not rendered fundamentally unfair by his counsel’s failure. United States v. Sylvester, 143 F.3d 923, 1998 U.S. App. LEXIS 12810 (5th Cir. Miss. 1998).

Counsel for capital murder defendant was not ineffective for failing to object to transitional jury instruction stating that jury should not consider instruction defining lesser included offense of murder unless it found that defendant was not guilty of capital murder, where defendant was granted lesser included offense instruction defining crime of murder less than capital, and defendant showed no prejudice flowing from transitional instruction. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Counsel for capital murder defendant was not ineffective for failing to object to jury instruction that the murder was “especially heinous, atrocious and cruel,” where, at time of trial, there was no viable basis under state law for objecting to this instruction. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

A murder defendant was not denied her Sixth Amendment right to the effective assistance of counsel by her attorney’s refusal of a manslaughter instruction, even though there was a strong evidentiary basis for the submission of such an instruction, where the attorney’s decision to refuse a manslaughter instruction coupled with his decision to employ a defense based entirely on self-defense was a calculated trial strategy. Hiter v. State, 660 So. 2d 961, 1995 Miss. LEXIS 333 (Miss. 1995).

126. –Sentencing phase procedures as indicative of ineffectiveness of counsel, assistance of counsel.

Defense counsel was not ineffective for failing to object to defendant’s sentence because the sentence was within the statutory maximum for the offense in question, and during the plea colloquy defendant stated under oath that he was satisfied with counsel’s performance and felt that it was effective. Morgan v. State, 966 So. 2d 204, 2007 Miss. App. LEXIS 545 (Miss. Ct. App. 2007).

On the inmate’s petition for post-conviction relief, the court held that counsel was not ineffective for failing to present mitigating evidence at sentencing because it was the inmate’s choice not to do so; the inmate was fully apprised of the consequences of his choice and he made an informed and voluntary decision not to present mitigating evidence. Brawner v. State, 947 So. 2d 254, 2006 Miss. LEXIS 625 (Miss. 2006).

Defendant did not receive ineffective assistance of counsel by the failure to challenged an aggravating circumstance not named in an indictment in a capital murder case because he was not entitled to formal notice of such since an indictment for capital murder put defendant on sufficient notice that the statutory aggravating factor would have been used against him. Howard v. State, 945 So. 2d 326, 2006 Miss. LEXIS 531 (Miss. 2006), cert. denied, 552 U.S. 829, 128 S. Ct. 49, 169 L. Ed. 2d 43, 2007 U.S. LEXIS 9278 (U.S. 2007).

Post-conviction relief in a capital murder case based on the argument that the use of the “avoiding or preventing a lawful arrest or effecting an escape from custody” aggravator was inappropriate was denied because it was procedurally barred; however, even if it was not, the argument was meritless since sufficient evidence supported this due to the fact that the victim’s telephone line was cut, two fires were set in her home, and defendant had just been released from prison. Howard v. State, 945 So. 2d 326, 2006 Miss. LEXIS 531 (Miss. 2006), cert. denied, 552 U.S. 829, 128 S. Ct. 49, 169 L. Ed. 2d 43, 2007 U.S. LEXIS 9278 (U.S. 2007).

Post-conviction relief was denied because defendant’s assertion that he received ineffective assistance of counsel during the sentencing phase of a capital murder trial was procedurally barred; however, even if it was not, ineffectiveness was not shown because, despite mitigation evidence that defendant was a great person and had not been violent, the state could have presented evidence of his prior convictions. Howard v. State, 945 So. 2d 326, 2006 Miss. LEXIS 531 (Miss. 2006), cert. denied, 552 U.S. 829, 128 S. Ct. 49, 169 L. Ed. 2d 43, 2007 U.S. LEXIS 9278 (U.S. 2007).

In a case where defendant was found guilty of capital murder – murder during the commission of sexual battery on a six-month old victim, the record revealed that defendant’s trial counsel procured testimony from his mother that his father deserted him at a young age and did not play a role in rearing him, and his grandmother testified to her relationship with defendant as a boy and discussed his love for children and that he had planned to marry the victim’s mother to care for both of them. Given the testimony provided in mitigation and what it did show the jury about defendant’s life and tendencies, counsel did not fail to investigate potential mitigating evidence for purposes of punishment and his performance was not prejudicially deficient. Havard v. State, 928 So. 2d 771, 2006 Miss. LEXIS 90 (Miss. 2006), cert. denied, 549 U.S. 1119, 127 S. Ct. 931, 166 L. Ed. 2d 716, 2007 U.S. LEXIS 153 (U.S. 2007).

In a case where defendant was found guilty of capital murder – murder during the commission of sexual battery on a six-month old victim, while counsel’s closing arguments at the sentencing phase of defendant’s trial, when viewed with the benefit of hindsight, could have been presented more forcibly, closing argument fell under the ambit of defense counsel’s trial strategy. Given the wide latitude and any strategic decisions counsel could have made with regard to his approach to the trial of the case, defendant’s counsel was not ineffective. Havard v. State, 928 So. 2d 771, 2006 Miss. LEXIS 90 (Miss. 2006), cert. denied, 549 U.S. 1119, 127 S. Ct. 931, 166 L. Ed. 2d 716, 2007 U.S. LEXIS 153 (U.S. 2007).

Inmate was not deprived of effective assistance of counsel at his plea and sentencing hearing simply because his counsel failed to object to the presence of the victim’s family, because they had a right to be present and speak at the hearings. Johnson v. State, 908 So. 2d 900, 2005 Miss. App. LEXIS 566 (Miss. Ct. App. 2005).

Court did not err in denying defendant’s motion to supplement his petition for post-conviction relief because his claim that his attorney was ineffective by failing to assure that the sentencing judge was informed of the district attorney’s recommended sentence was without merit. Defendant’s prior motion for reconsideration of his sentence, which was granted, and the reduction of his sentence by nine years, stated that the recommendation of the district attorney’s office was disclosed to the sentencing judge despite the open plea. Sanchez v. State, 913 So. 2d 1024, 2005 Miss. App. LEXIS 313 (Miss. Ct. App.), cert. dismissed, 920 So. 2d 1008, 2005 Miss. LEXIS 605 (Miss. 2005).

Court found no merit to defendant’s contention that counsel was ineffective for leading him to believe that by waiving his right to appeal, the trial judge would show leniency; record showed that prior to waiving his right to appeal, defendant was fully informed by the trial judge that his sentence could not be reduced because of his status as a convicted felon. Coker v. State, 909 So. 2d 1239, 2005 Miss. App. LEXIS 112 (Miss. Ct. App. 2005).

Although counsel’s summation conceded the sole aggravating circumstance of pecuniary gain, in viewing the summation as a whole, counsel was attempting to persuade the jury to select life imprisonment over the death penalty. Thus, trial counsel was not ineffective. Branch v. State, 882 So. 2d 36, 2004 Miss. LEXIS 586 (Miss. 2004), cert. denied, 544 U.S. 907, 125 S. Ct. 1595, 161 L. Ed. 2d 282, 2005 U.S. LEXIS 2289 (U.S. 2005).

Through the penalty-phase testimony of defendant’s father, counsel was able to introduce evidence of defendant’s childhood and adolescent life, his activities and interests, as well as his involvement in his family, neighborhood, and community; also, evidence of the statutory mitigating factors were discussed including no significant history of prior criminal history and defendant’s age. Thus, trial counsel was not deficient because he did not fail to develop penalty-phase testimony. Branch v. State, 882 So. 2d 36, 2004 Miss. LEXIS 586 (Miss. 2004), cert. denied, 544 U.S. 907, 125 S. Ct. 1595, 161 L. Ed. 2d 282, 2005 U.S. LEXIS 2289 (U.S. 2005).

Defense counsel was not ineffective for failing to submit Miss. Code Ann. §99-19-101(6)(b), (d)-(f) factors during the penalty phase because (1) defendant was not under the influence of extreme mental or emotional disturbance; (2) defendant’s participation in the robbery and murder was not relatively minor because he told the police that he played an active role in the robbery and murder; (3) there was no showing of extreme distress or domination either at trial or in the post-trial filings; and (4) defendant had the ability to understand the nature and quality of his alleged acts and to understand the difference between right and wrong at the time. Branch v. State, 882 So. 2d 36, 2004 Miss. LEXIS 586 (Miss. 2004), cert. denied, 544 U.S. 907, 125 S. Ct. 1595, 161 L. Ed. 2d 282, 2005 U.S. LEXIS 2289 (U.S. 2005).

Inmate was not deprived of his right to effective representation because his trial counsel failed to request a continuance between the guilt phase and the sentencing phase as the case was not complex, and, pursuant to Miss. Code Ann. §99-19-101, the sentencing phase was to be conducted by the trial judge before the trial jury as soon as practicable. Bell v. State, 879 So. 2d 423, 2004 Miss. LEXIS 543 (Miss. 2004), cert. denied, 543 U.S. 1155, 125 S. Ct. 1301, 161 L. Ed. 2d 122, 2005 U.S. LEXIS 1594 (U.S. 2005).

Inmate was not deprived of his right to effective representation because his trial counsel failed to give an opening statement during the penalty phase as the prosecutor did not give an opening statement either and the failure to do so could be deemed trial strategy. Bell v. State, 879 So. 2d 423, 2004 Miss. LEXIS 543 (Miss. 2004), cert. denied, 543 U.S. 1155, 125 S. Ct. 1301, 161 L. Ed. 2d 122, 2005 U.S. LEXIS 1594 (U.S. 2005).

Inmate was not deprived of his right to effective representation because his trial counsel failed to present mitigating evidence regarding his age, mental retardation, emotional disturbances and mental illness, disadvantaged and abusive childhood, adaptation to prison conditions, and cultural impacts on his life as his mother testified about his difficulties growing up and evidence was presented regarding his low I.Q., but the inmate did not present any evidence that evidence that he suffered from either emotional or mental problems. Bell v. State, 879 So. 2d 423, 2004 Miss. LEXIS 543 (Miss. 2004), cert. denied, 543 U.S. 1155, 125 S. Ct. 1301, 161 L. Ed. 2d 122, 2005 U.S. LEXIS 1594 (U.S. 2005).

Inmate was not deprived of his right to effective representation because his trial counsel failed to request an instruction that a Tennessee sentence would have on him if a life sentence was imposed instead of the death penalty as the State argued the violent nature of the subject crime as an aggravating factor rather than the inmate’s future propensity for violent crime. Bell v. State, 879 So. 2d 423, 2004 Miss. LEXIS 543 (Miss. 2004), cert. denied, 543 U.S. 1155, 125 S. Ct. 1301, 161 L. Ed. 2d 122, 2005 U.S. LEXIS 1594 (U.S. 2005).

Where defense counsel’s efforts resulted in a plea agreement in which a murder charge was reduced to manslaughter, and the state recommended a 10-year sentence, counsel did not provide ineffective assistance even though the trial court rejected the sentencing recommendation and sentenced defendant to 20 years. Vance v. State, 799 So. 2d 100, 2001 Miss. App. LEXIS 248 (Miss. Ct. App. 2001).

Trial counsel was not ineffective for failure to present mitigation evidence in sentencing phases of capital murder trials regarding defendant’s alleged organic brain damage and Dissociative Identity Disorder; attorney acted reasonably based on strategic decision that any mitigation would be clearly outweighed by harm. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

It was not ineffective assistance of counsel per se for defense counsel not to offer mitigation evidence, except for testimony of defendant’s mother, in the punishment phase of capital murder case. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

If counsel’s failure to offer mitigation evidence in the punishment phase of capital murder case is based on well informed, strategic decisions, it is well within the range of practical choices not to be second-guessed. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

Trial counsel’s failure to object to submission of pecuniary gain aggravating circumstance in capital murder prosecution did not constitute ineffective assistance, where Supreme Court case, prospectively holding that in felony murder cases based on robbery pecuniary gain aggravator should not be given, had not been decided when defendant’s trial took place. Chase v. State, 699 So. 2d 521, 1997 Miss. LEXIS 320 (Miss. 1997).

Trial counsel’s failure to object to lack of instruction defining capital murder for pecuniary gain aggravating factor did not constitute ineffective assistance, where Supreme Court case, prospectively holding that in felony murder cases based on robbery pecuniary gain aggravator should not be given, had not been decided when defendant’s trial took place and previous case found no reversible error when pecuniary gain aggravator was submitted without limiting instruction. Chase v. State, 699 So. 2d 521, 1997 Miss. LEXIS 320 (Miss. 1997).

Trial counsel’s submission in capital murder prosecution of instruction, providing you must find mitigating circumstance exits if there is any substantial evidence to support it, did not constitute ineffective assistance, despite contention that instruction should not have included word “substantial,” where there was no reasonable likelihood that jury, because of use of word “substantial,” refused to consider relevant mitigation evidence. Chase v. State, 699 So. 2d 521, 1997 Miss. LEXIS 320 (Miss. 1997).

Trial counsel’s failure in capital murder prosecution to object to language of lesser included offense instruction, providing this section is not designed to relieve you from performance of unpleasant duty but to prevent failure of justice if evidence fails to prove original charge but does justify verdict for lesser crime, did not constitute ineffective assistance, despite contention that language prevented jury from giving effect to instruction, where defendant cited nothing which stated that this language inhibited jurors who may have voted to convict for lesser offense. Chase v. State, 699 So. 2d 521, 1997 Miss. LEXIS 320 (Miss. 1997).

Trial counsel’s failure to object to submission of avoiding arrest aggravating circumstance in capital murder prosecution did not constitute ineffective assistance, where Supreme Court found claim meritless on direct appeal. Chase v. State, 699 So. 2d 521, 1997 Miss. LEXIS 320 (Miss. 1997).

Admission of testimony of psychologist to rebut defendant’s presentation of mitigating evidence tending to show that he was extremely emotionally disturbed at time of murders did not violate defendant’s Sixth Amendment right to counsel; defendant’s attorneys knew of examination and one attorney had met with defendant twice to prepare him, doctors told defendant that anything he said could be used against him during sentencing phase of capital murder trial, and doctors offered to allow defendant to call his attorneys. Wilcher v. State, 697 So. 2d 1123, 1997 Miss. LEXIS 101 (Miss. 1997).

Counsel’s closing argument at penalty phase of capital murder prosecution in which he told the jurors “if you want to sentence him to death, don’t let me persuade you not to. If you don’t want to sentence him to death, don’t let the District Attorney persuade you to” was reasonable trial strategy encouraging jurors to make up their own minds when determining penalties without being influenced by either party. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Counsel for capital murder defendant was not ineffective for failing to request continuance after State introduced into evidence during sentencing phase 2 prior convictions for manslaughter and attempted rape, where there was no prejudice to defendant, in that the prior convictions were valid and not subject to collateral attack. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Counsel for capital murder defendant was not ineffective for failing to object to introduction of defendant’s prior convictions of grand larceny and simple robbery, where both were relevant to aggravating circumstances set forth under capital sentencing statute, and thus objection would have been futile. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Counsel for capital murder defendant was not ineffective for conducting cross-examination of witness that produced responses which allegedly strongly suggested to jury that defendant could not be rehabilitated, where most of the cross-examination was in abstract and was not related directly to defendant, and defendant had previous convictions for rape, manslaughter, robbery and grand larceny based upon which jury could have easily reached conclusion that there was little hope for defendant’s rehabilitation. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

A capital murder defendant was denied effective assistance of counsel at the penalty phase where his attorneys presented almost no facts in mitigation upon which the jury could have acted to spare the defendant’s life, they failed to make the most of the available evidence in mitigation, and in closing argument one of the defendant’s attorneys stated that the only way the jury could spare the defendant’s life was on “redeeming love,” which was not one of the factors which the jury could have considered under the court’s instructions. Woodward v. State, 635 So. 2d 805, 1993 Miss. LEXIS 442 (Miss. 1993).

In the sentencing phase of a capital murder prosecution, the introduction of a state psychologist’s testimony that it was her opinion that the defendant was not psychotic or mentally ill, did not violate the defendant’s Sixth Amendment right to counsel where the defendant’s attorney requested the psychiatric examination, the defendant testified that he wanted to have a psychiatric evaluation to determine whether he knew right from wrong, and presumably the defendant had consulted with his attorney about the nature of the psychiatric examination. Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

A defense counsel’s performance at the sentencing phase of a capital murder prosecution constituted ineffective assistance of counsel where the defendant faced a potential death penalty, and the defense counsel failed to conduct any investigation at all in a search for mitigation evidence; the defense counsel conducted little or no investigation into the defendant’s background, he spent negligible time interviewing the defendant and preparing a defense, he made no effort to contact or interview any potential character witnesses other than the defendant’s mother who was contacted only after the trial had commenced, and the lack of preparation left the defense counsel unable to blunt the prosecution’s forceful case. At a minimum, counsel has a duty to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case; it is critical that mitigating evidence be presented at capital sentencing proceedings. Psychiatric and psychological evidence is crucial to the defense of a capital murder case, and there is a critical interrelation between expert psychiatric assistance and minimally effective representation. Thus, the defendant’s counsel was unreasonable in not pursuing psychological evidence in support of the defense that the defendant was under the domination of his accomplice where evidence was presented in the post-conviction proceeding that the defendant was immature, dependent and easily lead. State v. Tokman, 564 So. 2d 1339, 1990 Miss. LEXIS 232 (Miss. 1990).

Defendant failed to show ineffective assistance of counsel at probation revocation proceedings where he argued that appointed attorney was ineffective because he did not challenge legality of split sentence for armed robbery. Marshall v. Cabana, 835 F.2d 1101, 1988 U.S. App. LEXIS 540 (5th Cir. Miss. 1988).

Argument that counsel was ineffective was without merit where counsel presented proof concerning defendant’s absence of criminal record, co-operation in investigation, his being model prisoner, and testimony of victim’s wife that defendant was nonviolent. Wiley v. State, 517 So. 2d 1373, 1987 Miss. LEXIS 2915 (Miss. 1987), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 610, 1988 U.S. LEXIS 2458 (U.S. 1988).

Failure to present case in mitigation or call witnesses is not per se ineffective assistance of counsel. Stringer v. Scroggy, 675 F. Supp. 356, 1987 U.S. Dist. LEXIS 11203 (S.D. Miss. 1987), aff'd, 862 F.2d 1108, 1988 U.S. App. LEXIS 17949 (5th Cir. Miss. 1988).

Counsel is not ineffective for following instructions of client concerning how to or whether to present case in mitigation and not presenting such evidence by having family members testify about defendant’s family nature, war record, and medical problems, where defendant stated to attorney that he did not want to put his family through that ordeal. Stringer v. Scroggy, 675 F. Supp. 356, 1987 U.S. Dist. LEXIS 11203 (S.D. Miss. 1987), aff'd, 862 F.2d 1108, 1988 U.S. App. LEXIS 17949 (5th Cir. Miss. 1988).

Failure to request pre-sentence report is not ineffective assistance of counsel because defendant is not automatically entitled to pre-sentence reports under §47-7-9(3)(a), which clearly states that pre-sentence reports are given only at discretion of circuit judge. Stringer v. Scroggy, 675 F. Supp. 356, 1987 U.S. Dist. LEXIS 11203 (S.D. Miss. 1987), aff'd, 862 F.2d 1108, 1988 U.S. App. LEXIS 17949 (5th Cir. Miss. 1988).

Ineffective assistance of counsel was not shown concerning investigation of and failure to present mitigating circumstances where there was some mitigation by cross-examination and, strategically, it may be safer to obtain mitigating evidence from state’s witnesses than to risk aggravating evidence from witnesses called by defense. Additionally, trial counsel has no absolute duty to present mitigating evidence; strategic choices made after less than complete investigation are reasonable to extent that reasonable professional judgment supports limitations on investigation; court must apply heavy measure of deference to counsel’s judgments. Wiley v. State, 517 So. 2d 1373, 1987 Miss. LEXIS 2915 (Miss. 1987), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 610, 1988 U.S. LEXIS 2458 (U.S. 1988).

Argument that counsel was ineffective for failing to explain to jury inapplicability and/or insignificance of aggravating circumstances and how to weigh aggravating and mitigating circumstances was rejected where counsel made excellent arguments as to aggravating circumstances, and closing argument contained variety of mitigating evidence. Wiley v. State, 517 So. 2d 1373, 1987 Miss. LEXIS 2915 (Miss. 1987), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 610, 1988 U.S. LEXIS 2458 (U.S. 1988).

Argument that counsel should have requested presentence report in light of his failure to investigate mitigating evidence, was rejected as basis for ineffective assistance of counsel claim where question was counsel’s competence in not investigating and presenting mitigating evidence; if this was reasonable strategic choice, there was no need for investigation by other means. Wiley v. State, 517 So. 2d 1373, 1987 Miss. LEXIS 2915 (Miss. 1987), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 610, 1988 U.S. LEXIS 2458 (U.S. 1988).

If capital murder defendant shows that failure of trial defense counsel to call favorable, willing witnesses during penalty phase of trial and failure to investigate and present psychological evidence resulted in ineffective assistance of counsel, death penalty will be vacated and new trial set as to sentencing only. Leatherwood v. State, 473 So. 2d 964, 1985 Miss. LEXIS 2182 (Miss. 1985).

127. –Failure to appeal as ineffectiveness of counsel, assistance of counsel.

Defendant, as a convicted felon, could not quietly enjoy the benefits of an illegally lenient sentence and later attack the sentence when suddenly it was in his interest to do so; because defendant actually benefited from the illegal sentence, he was not denied his fundamental right from an illegal sentence, and there was no ineffective assistance of counsel or other error. Thomas v. State, 861 So. 2d 371, 2003 Miss. App. LEXIS 1188 (Miss. Ct. App. 2003).

Defense counsel’s failure to file appeal, to advise defendant of 30-day time period in which appeal was required to be filed, and to file motion for out-of-time appeal was not ineffective assistance of counsel in murder case, where defendant had signed statement showing that he had been advised of his right to appeal and did not desire to do so. Osborn v. State, 695 So. 2d 570, 1997 Miss. LEXIS 149 (Miss. 1997).

A defendant was not deprived of his constitutional right to effective assistance of counsel on the ground that his attorney failed to perfect a timely appeal where his attorney filed for a new trial and J.N.O.V., thereby protecting the defendant’s right of appeal to the Supreme Court. Jackson v. State, 614 So. 2d 965, 1993 Miss. LEXIS 75 (Miss. 1993).

Crudely handwritten note requesting free copies of documents from the record and a copy of the trial transcript of the purpose of pursuing a “higher cause of action” was sufficient to give notice to the state that petitioner was indigent, unrepresented, and desired to appeal, which required the state to appoint counsel for him. Bennett v. Mississippi, 523 F.2d 802, 1975 U.S. App. LEXIS 11885 (5th Cir. Miss. 1975).

128. – Totality of circumstances demonstrating ineffectiveness of counsel, assistance of counsel.

Counsel was not ineffective for failing to investigate the police informant because, had defendant not pleaded guilty and gone to trial, the informant’s background would have been relevant only for impeachment purposes, and in his petition to enter a guilty plea, defendant swore that his attorney had counseled him and advised him about the nature of the charge and all possible defenses. Deloach v. State, 937 So. 2d 1010, 2006 Miss. App. LEXIS 679 (Miss. Ct. App. 2006).

Federal district court correctly denied state death row inmate’s habeas corpus petition; defense counsel was not ineffective for failing to introduce petitioner’s medical records, documenting his history of automobile and hunting accidents as well as a drug overdose, in mitigation at a resentencing hearing because petitioner’s family members testified about his dysfunctional and abusive family background, and having the additional medical evidence would not have dissuaded the jury from returning a death sentence. Holland v. Anderson, 439 F. Supp. 2d 644, 2006 U.S. Dist. LEXIS 46788 (S.D. Miss. 2006).

Defendant was not denied the effective assistance of counsel during trial for the sale of cocaine; defendant merely gave blanket reasons as to why counsel was ineffective. Defendant did not show that counsel’s trial strategies were outside the range of professionally competent assistance nor did defendant show that any deficiency on the part of trial counsel resulted in any prejudice to the case. Wilson v. State, 893 So. 2d 1064, 2004 Miss. App. LEXIS 717 (Miss. Ct. App. 2004), cert. denied, 893 So. 2d 1061, 2005 Miss. LEXIS 124 (Miss. 2005).

In a case where defendant was convicted of two counts of lustful touching of a child and two counts of sexual battery, defendant received effective assistance of counsel, as counsel filed motions before trial, effectively cross-examined the State’s witnesses, made many objections throughout the trial and gave a coherent opening statement along with a comprehensive closing argument, and filed post-trial motions, one of which resulted in the dismissal of the first count of defendant’s indictment. Broderick v. State, 878 So. 2d 103, 2003 Miss. App. LEXIS 855 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 66, 2004 Miss. LEXIS 937 (Miss. 2004).

The defendant failed to establish ineffective assistance of counsel where (1) up until the point where the defendant took over his own defense and counsel assumed an advisory role, counsel conducted voir dire of the jury panel, made a Batson challenge to the state’s strikes, and responded to the state’s reverse Batson challenges, (2) counsel also conducted the cross-examination of six of the state’s witnesses, made numerous objections to the testimony of the state’s witnesses, as well as to exhibits offered into evidence, and moved to dismiss because of an alleged discovery violation by the state, and (3) after the defendant took over his own defense and counsel was ordered to remain as his advisor, the record reveals that he conferred with and offered advice to defendant as to how he should proceed. Henley v. Mississippi, 729 So. 2d 232, 1998 Miss. LEXIS 588 (Miss. 1998).

Supreme Court looks at totality of circumstances to determine whether counsel’s efforts were both deficient and prejudicial, when evaluating claim of ineffective assistance of counsel. Osborn v. State, 695 So. 2d 570, 1997 Miss. LEXIS 149 (Miss. 1997).

Adequacy of counsel’s performance, as to its deficiency and prejudicial effect, should be measured by totality of circumstances. Taylor v. State, 682 So. 2d 359, 1996 Miss. LEXIS 532 (Miss. 1996).

In determining effectiveness of counsel issues, court must consider whether overall performance was deficient and whether defense was prejudiced by any such deficiencies. Moore v. State, 676 So. 2d 244, 1996 Miss. LEXIS 328 (Miss. 1996).

Whether counsel’s performance was both deficient and prejudicial under Strickland test for ineffectiveness of counsel must be determined from totality of circumstances. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Target of appellate scrutiny in evaluating deficiency and prejudice prongs of Strickland test for ineffectiveness of counsel is counsel’s “over-all” performance. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Supreme Court must determine whether counsel’s performance was both deficient and prejudicial based upon totality of circumstances. Hughes v. State, 665 So. 2d 852 (Miss. 1995), reh’g denied (Miss. Dec. 21, 1995).

A guilty verdict supported by confessions and direct evidence comes out more strongly against a claim of ineffectiveness of counsel. Evans v. State, 485 So. 2d 276, 1986 Miss. LEXIS 2403 (Miss.), cert. denied, 476 U.S. 1178, 106 S. Ct. 2908, 90 L. Ed. 2d 994, 1986 U.S. LEXIS 1704 (U.S. 1986).

A defendant’s Sixth Amendment right to effective assistance of counsel does not entitle defendant to errorless counsel, but rather counsel reasonably likely to render and rendering reasonably effective assistance. The standard required of trial counsel is no higher in capital cases than in noncapital cases. Although Mississippi courts may customarily appoint two lawyers in a capital case, the Constitution dictates no such requirement. The duty imposed on counsel to make an independent investigation of the facts and circumstances in the case is not without limit, and the court must take into account the totality of the circumstances in evaluating whether counsel has been effective. Defendant must demonstrate that his counsel’s ineffectiveness has resulted in at least some degree of prejudice to his case. Counsel could not be faulted for his failure to request a simple murder charge not supported by the evidence and his failure to request a definition of the underlying felony was harmless. Accordingly defendant was not denied effective assistance of counsel during the guilt stage of his trial. Bell v. Watkins, 692 F.2d 999, 1982 U.S. App. LEXIS 23546 (5th Cir. Miss. 1982), cert. denied, 464 U.S. 843, 104 S. Ct. 142, 78 L. Ed. 2d 134, 1983 U.S. LEXIS 1426 (U.S. 1983).

129. – Different outcome likely as proof of ineffectiveness of counsel, assistance of counsel.

Defendant’s convictions for two counts of capital murder were upheld because while defendant was able to give several examples of what defendant perceived to be counsel’s deficiencies, including counsel’s failure to fully investigate through discovery motions what information the State had related to the case, defendant was not able to satisfy the second prong of the Strickland test; defendant failed to establish a reasonable probability that but for counsel’s error he would have had a better result. Dahl v. State, 989 So. 2d 910, 2007 Miss. App. LEXIS 822 (Miss. Ct. App. 2007), cert. denied, 993 So. 2d 832, 2008 Miss. LEXIS 412 (Miss. 2008).

Counsel was not ineffective for allegedly failing to investigate the physical evidence to find inconsistencies with the inmate’s confession because the record was full of independent evidence that was consistent with and supported the inmate’s confession to the kidnapping and murder; therefore, the inmate could not show that his trial would have been different. Thorson v. State, 994 So. 2d 707, 2007 Miss. LEXIS 497 (Miss. 2007).

Dismissal of the inmate’s motion for post-conviction relief was proper in part because he failed to prove that his counsel was ineffective; the inmate failed to demonstrate how the outcome of his case would have been different had his attorney performed the acts that the inmate alleged that the attorney was deficient in failing to perform. Truitt v. State, 958 So. 2d 299, 2007 Miss. App. LEXIS 413 (Miss. Ct. App. 2007).

Petitioner failed to demonstrate that his counsel was ineffective for failing to investigate the background of a police informant where petitioner did not argue that he would not have pled guilty but for the ineffective assistance of his counsel, or that he was prejudiced by his attorney’s alleged failure. Elliott v. State, 939 So. 2d 824, 2006 Miss. App. LEXIS 744 (Miss. Ct. App. 2006).

Defendant’s conviction for capital murder was appropriate because he failed to prove that his counsel was ineffective; the appellate court failed to see how examining additional photographs would have enabled defendant’s counsel to more effectively cross-examine the state’s experts to the extent that the trial outcome would have changed. Williams v. State, 937 So. 2d 35, 2006 Miss. App. LEXIS 618 (Miss. Ct. App. 2006).

In an ineffective assistance of counsel claim, defendant pointed to his trial counsel’s failure to object to leading questions, failure to object to jury instructions containing assumptions of fact, failure to effectively cross-examine, failure to adequately investigate his case, failure to call witnesses, and numerous other grounds; however, defendant’s trial counsel was not ineffective based on the record. Any errors defendant’s trial counsel might have committed in the case were not prejudicial to the defense so as to create a reasonable probability of a different outcome in the absence of such errors; thus, defendant’s ineffective assistance of counsel claim failed. Moore v. State, 938 So. 2d 1254, 2006 Miss. App. LEXIS 86 (Miss. Ct. App. 2006), cert. denied, 2006 Miss. LEXIS 750 (Miss. Oct. 5, 2006), cert. denied, 939 So. 2d 805, 2006 Miss. LEXIS 749 (Miss. 2006).

Petition for post-conviction relief based on ineffective assistance of counsel was properly denied because an inmate failed to show that allegedly discoverable evidence would have been exculpatory in light of a co-defendant’s statement that implicated the inmate in a murder. Hollingsworth v. State, 852 So. 2d 612, 2003 Miss. App. LEXIS 925 (Miss. Ct. App.), cert. denied, 852 So. 2d 577, 2003 Miss. App. LEXIS 867 (Miss. Ct. App. 2003).

If, and only if, court adjudges counsel’s performance to have been deficient, then it must determine whether there exists reasonable probability that, but for complained-of error, outcome of trial or appeal would have been different, in ruling on claim of ineffective assistance. Pitts v. Anderson, 122 F.3d 275, 1997 U.S. App. LEXIS 25289 (5th Cir. Miss. 1997).

Defendant was not entitled to habeas relief based upon his claim of ineffective assistance of his trial counsel where all instances of alleged attorney ineffectiveness failed to meet either deficiency or prejudice prong of Strickland ; even though trial counsel’s performance could have been improved in certain instances, trial counsel sufficiently defended him during guilt and sentencing phases of both capital murder trials, proceedings were fair and reliable, and result and sentences received would not have changed had the alleged instances of deficiency not occurred. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

On claim for habeas corpus relief for ineffective assistance of counsel, an error by counsel, even if professionally unreasonable, does not warrant setting aside judgment of a criminal proceeding if the error had no effect on the judgment, and petitioner must affirmatively plead this resulting prejudice. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

Supreme Court will find ineffective representation by counsel only where there is reasonable probability that without counsel’s errors, outcome of trial would have been different. Hughes v. State, 665 So. 2d 852 (Miss. 1995), reh’g denied (Miss. Dec. 21, 1995).

A defendant’s complaints of ineffective assistance of counsel in his post-conviction relief motion alleging that his guilty plea was involuntarily made as a result of ineffective assistance of counsel were insufficient as a matter of law where the defendant failed to allege that the asserted errors of his attorney proximately resulted in his guilty plea and that, but for these errors, he would not have entered the plea. Garlotte v. State, 597 So. 2d 641, 1992 Miss. LEXIS 161 (Miss. 1992).

A defendant was not denied his right to effective assistance of counsel merely because his attorney failed to procure a preliminary hearing where no allegation or facts were presented as to the way in which this matter operated to the defendant’s prejudice. Jordan v. State, 577 So. 2d 368, 1990 Miss. LEXIS 785 (Miss. 1990).

In case involving clear guilt supported by confessions and direct evidence, claim of ineffective assistance of counsel is less likely to be found because prejudice prong of Strickland test will be difficult to meet. Faraga v. State, 514 So. 2d 295, 1987 Miss. LEXIS 2656 (Miss. 1987), cert. denied, 487 U.S. 1210, 108 S. Ct. 2858, 101 L. Ed. 2d 894, 1988 U.S. LEXIS 2778 (U.S. 1988).

Even if counsel was ineffective at sentencing phase, result would not have been different given overwhelming evidence of defendant’s guilt, and therefore claim of ineffective assistance was not substantiated. Stringer v. Scroggy, 675 F. Supp. 356, 1987 U.S. Dist. LEXIS 11203 (S.D. Miss. 1987), aff'd, 862 F.2d 1108, 1988 U.S. App. LEXIS 17949 (5th Cir. Miss. 1988).

In a prosecution for homicide, where the defendant was unable to show that there was a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different, defendant was not denied effective assistance of counsel in violation of the Sixth Amendment. In re Hill, 460 So. 2d 792, 1984 Miss. LEXIS 2003 (Miss. 1984).

130. –Presumptions of ineffectiveness of counsel, assistance of counsel.

In determining whether attorney’s performance is deficient, for purposes of claim of ineffective assistance of counsel, court must indulge strong presumption that counsel’s conduct falls within wide range of reasonable professional assistance; that is, defendant must overcome presumption that, under circumstances, challenged action might be considered sound trial strategy. Pitts v. Anderson, 122 F.3d 275, 1997 U.S. App. LEXIS 25289 (5th Cir. Miss. 1997).

In analyzing claim of ineffective assistance of counsel, district court must engage in strong presumption that trial counsel’s performance fell within the wide range of professional competence and that the original verdict was reliable. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

Trial counsel is presumed to be competent for purposes of ineffective assistance of counsel claim. Ashby v. State, 695 So. 2d 589, 1997 Miss. LEXIS 243 (Miss. 1997).

There is strong but rebuttable presumption that counsel’s conduct falls within wide range of reasonable professional assistance; only where it is reasonably probable that but for attorney’s errors, outcome of trial would have been different, will Supreme Court find that counsel’s performance was deficient. Osborn v. State, 695 So. 2d 570, 1997 Miss. LEXIS 149 (Miss. 1997).

Prejudice is presumed only if defendant demonstrates that counsel actively represented conflicting interests and that actual conflict of interest adversely affected his lawyer’s performance. Perry v. State, 682 So. 2d 1027, 1996 Miss. LEXIS 572 (Miss. 1996).

There is strong, yet rebuttable, presumption that counsel’s conduct falls within wide range of reasonable professional assistance, for purposes of applying Strickland test for ineffectiveness of counsel, as there is presumption that decisions made by defense counsel are strategic. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

131. – Burden of proof of ineffectiveness of counsel, assistance of counsel.

Denial of defendant’s motion for postconviction relief was proper because he failed to meet his burden of proof under Miss. Code Ann. §99-39-23(7) in that he failed to show that his guilty plea was not knowing and voluntary and that his counsel was ineffective; the trial court had responsibility to assess defendant’s credibility and found no deficiency. Loden v. State, 971 So. 2d 548, 2007 Miss. LEXIS 558 (Miss. 2007), cert. denied, 555 U.S. 831, 129 S. Ct. 45, 172 L. Ed. 2d 51, 2008 U.S. LEXIS 6568 (U.S. 2008).

Denial of the inmate’s motion for post-conviction relief was proper because, notwithstanding the admissions and concessions contained within the inmate’s petition and throughout his hearing, he further failed to offer any affidavits or additional proof in support of his claim of ineffective assistance of counsel other than his own beliefs. Ross v. State, 936 So. 2d 983, 2006 Miss. App. LEXIS 612 (Miss. Ct. App. 2006).

In a capital murder and death penalty case, there were no due process violations under Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963); no DNA testing was done, most of the film had been disclosed, but to the extent that it was not, there was no reasonable probability that the outcome would have been different, and the other evidence had been disclosed to defendant. Howard v. State, 945 So. 2d 326, 2006 Miss. LEXIS 531 (Miss. 2006), cert. denied, 552 U.S. 829, 128 S. Ct. 49, 169 L. Ed. 2d 43, 2007 U.S. LEXIS 9278 (U.S. 2007).

To prove counsel was ineffective at trial, a defendant must show the existence of a reasonable probability that, but for counsel’s unprofessional errors, the outcome would have been different. Where a defendant convicted of sexual battery on a child failed to prove the prejudice arm of the ineffective counsel test by failing to show the outcome would have been different based on alleged deficiencies in his counsel’s responses to rulings on the admission of evidence, his conviction was affirmed on appeal. Renfrow v. State, 863 So. 2d 1047, 2004 Miss. App. LEXIS 36 (Miss. Ct. App. 2004).

Petitioner failed to identify any acts or omissions of his counsel in his pro se post-conviction petition, and therefore failed to demonstrate that his counsels’ performance during the sentencing phase and/or on appeal was deficient and that the deficiency prejudiced the defense of his case. Woodward v. State, 843 So. 2d 1, 2003 Miss. LEXIS 92 (Miss. 2003).

To establish ineffective assistance of counsel, petitioner must show that (1) his counsel’s performance was deficient and (2) deficient performance prejudiced his defense. Pitts v. Anderson, 122 F.3d 275, 1997 U.S. App. LEXIS 25289 (5th Cir. Miss. 1997).

To establish “cause” for procedural default, party is required to show that some objective external factor impeded defense counsel’s ability to comply with state’s procedural rules or to show prior determination of ineffective assistance of counsel. Martin v. Maxey, 98 F.3d 844, 1996 U.S. App. LEXIS 28836 (5th Cir. Miss. 1996).

To merit habeas corpus relief on a claim of ineffective assistance of counsel, defendant must demonstrate that his counsel’s errors were so egregious that he was deprived of the “counsel” guaranteed by the Sixth Amendment, and to show prejudice from that deficiency, defendant must prove that challenged conduct rendered proceeding fundamentally unfair or unreliable. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

On claim of ineffective assistance of counsel, it is not enough to show that some, or even most, defense lawyers would have handled the case differently. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

To prove a claim of ineffective assistance of counsel, defendant must show (1) deficiency of counsel’s performance (2) sufficient to constitute prejudice to the defense. Walker v. State, 703 So. 2d 266, 1997 Miss. LEXIS 634 (Miss. 1997).

Burden of proving that both prongs of Strickland have been met is on defendant who faces a rebuttable presumption that counsel’s performance falls within broad spectrum of reasonable professional assistance. Walker v. State, 703 So. 2d 266, 1997 Miss. LEXIS 634 (Miss. 1997).

To establish ineffective assistance of counsel, defendant must show that there is reasonable probability that, but for counsel’s unprofessional errors, result would have been different; reasonable probability is probability sufficient to undermine confidence in outcome. Ashby v. State, 695 So. 2d 589, 1997 Miss. LEXIS 243 (Miss. 1997).

Before counsel can be deemed to have been ineffective, it must be shown (1) that counsel’s performance was deficient, and (2) that defendant was prejudiced by counsel’s mistakes. Drennan v. State, 695 So. 2d 581, 1997 Miss. LEXIS 244 (Miss. 1997).

Defendant who claims that counsel was ineffective must overcome presumption that counsel’s performance falls within range of reasonable professional assistance, and in order to overcome presumption, defendant must show that there is reasonable probability that, but for counsel’s unprofessional errors, result of proceeding would have been different. Drennan v. State, 695 So. 2d 581, 1997 Miss. LEXIS 244 (Miss. 1997).

Burden is on defendant to prove both prongs of ineffective assistance of counsel test. Taylor v. State, 682 So. 2d 359, 1996 Miss. LEXIS 532 (Miss. 1996).

To establish prejudice, defendant claiming ineffective assistance of counsel must show that there was reasonable probability that, but for counsel’s unprofessional errors, result would have been different. Taylor v. State, 682 So. 2d 359, 1996 Miss. LEXIS 532 (Miss. 1996).

Burden is on defendant to show both prongs of the Strickland test for ineffective assistance of counsel or at least to present prima facie claim as to any deficiencies and the prejudice resulting therefrom. Moore v. State, 676 So. 2d 244, 1996 Miss. LEXIS 328 (Miss. 1996).

If defendant is to be successful on ineffective assistance of counsel claim, he must prove that counsel’s performance was deficient and that deficient performance prejudiced the defense; burden of proving both prongs of the test is on defendant. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Defendant claiming ineffective assistance of counsel must show that there is reasonable probability that, but for the errors, outcome of the case would have been different. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

In order to be successful on ineffective assistance claim, defendant must overcome presumption that defense counsel’s statements were within the realm of reasonable trial tactics. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Burden is on defendant to demonstrate both deficiency and prejudice prongs of Strickland test for ineffectiveness of counsel. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Under prejudice prong of Strickland test for ineffectiveness of counsel, movant must show that there is reasonable probability that, but for counsel’s unprofessional errors, result of proceedings would have been different, with “reasonable probability” being probability sufficient to undermine confidence in outcome. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

To successfully claim ineffective assistance of counsel, defendant must show deficiency of counsel’s performance sufficient to constitute prejudice to defense. Hughes v. State, 665 So. 2d 852 (Miss. 1995), reh’g denied (Miss. Dec. 21, 1995).

Burden to demonstrate ineffective assistance of counsel is on defendant, who faces strong but rebuttable presumption that counsel’s performance falls within broad spectrum of reasonable professional assistance. Hughes v. State, 665 So. 2d 852 (Miss. 1995), reh’g denied (Miss. Dec. 21, 1995).

In order to prove that he received ineffective assistance of counsel during the guilt phase of a capital murder prosecution, the defendant was required to show deficient performance and that his counsel’s errors were so serious as to deprive him of a fair trial with a reliable result; unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that rendered the result unreliable. State v. Tokman, 564 So. 2d 1339, 1990 Miss. LEXIS 232 (Miss. 1990).

A post-conviction relief petitioner, who is seeking to overturn a conviction or sentence on the grounds of ineffective assistance of counsel, must demonstrate factual proof by a preponderance of the evidence of an identifiable lapse by counsel and of some actual adverse impact on the fairness of the trial resulting from that lapse. State v. Tokman, 564 So. 2d 1339, 1990 Miss. LEXIS 232 (Miss. 1990).

In order to prevail on the claim that he was denied effective assistance of counsel, a defendant must show (1) that counsel’s performance was deficient, and (2) that the deficient performance prejudiced the defense. Perkins v. State, 487 So. 2d 791, 1986 Miss. LEXIS 2389 (Miss. 1986).

In order to prevail on a claim that counsel’s assistance was so defective as to require reversal of conviction or death sentence, defendant must show that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced the defense. Evans v. State, 485 So. 2d 276, 1986 Miss. LEXIS 2403 (Miss.), cert. denied, 476 U.S. 1178, 106 S. Ct. 2908, 90 L. Ed. 2d 994, 1986 U.S. LEXIS 1704 (U.S. 1986).

The burden of proving ineffective assistance of counsel is on the defendant to prove that the counsel’s performance was (1) deficient, and (2) that the deficient performance prejudiced the defense, and a reversal of a conviction or sentence is not warranted upon failure to prove either component. Dufour v. State, 483 So. 2d 307, 1985 Miss. LEXIS 2357 (Miss. 1985), cert. denied, 479 U.S. 891, 107 S. Ct. 292, 93 L. Ed. 2d 266, 1986 U.S. LEXIS 4333 (U.S. 1986).

132. – Sufficiency of evidence of ineffectiveness of counsel, assistance of counsel.

Defendant’s ineffective assistance of counsel claim failed where nothing in the record supported the allegations that his attorney’s strategy of asserting self-defense rather than accident was prejudicial, and defense counsel had thoroughly developed the theory that the victim was the aggressor. Byrd v. State, 158 So.3d 1146, 2015 Miss. LEXIS 129 (Miss. 2015).

Defendant claimed that he received ineffective assistance of counsel because his trial counsel failed to make timely disclosure of two witnesses, which resulted in exclusion of the testimony of the witnesses, but there was nothing to suggest a constitutionally deficient performance. Defendant also contended that defense counsel should have objected to a lesser-included jury instruction, but this could have been counsel’s trial strategy; finally, counsel was not deficient for failing to use a peremptory strike against a juror. McGregory v. State, 979 So. 2d 12, 2008 Miss. App. LEXIS 207 (Miss. Ct. App. 2008).

Defendant’s retained counsel was not ineffective in informing the jury that defendant was a habitual offender where that information was included in the indictment. Logan v. State, 987 So. 2d 1027, 2008 Miss. App. LEXIS 190 (Miss. Ct. App. 2008), cert. denied, 999 So. 2d 852, 2009 Miss. LEXIS 45 (Miss. 2009).

Trial court did not err in failing to sua sponte declare a mistrial for ineffective assistance of counsel where defendant failed to show a reasonable probability that he would have received a different result given his taped confession, his presence in the church office on the day of the burglary, and his signature on two checks found in the office. Deloach v. State, 977 So. 2d 400, 2008 Miss. App. LEXIS 166 (Miss. Ct. App. 2008).

Defendant’s conviction for armed robbery was proper because he failed to prove that his counsel was ineffective; in part, counsel’s failure to object to the introduction of evidence, which was clothing, was not ineffective because the evidence against defendant was overwhelming. Hancock v. State, 964 So. 2d 1167, 2007 Miss. App. LEXIS 35 (Miss. Ct. App.), cert. denied, 964 So. 2d 508, 2007 Miss. LEXIS 526 (Miss. 2007).

Where a defendant raised ineffective assistance of counsel on direct appeal, and raises it again in a post-conviction proceeding, supported by extraneous materials that were not available on direct appeal, an appellate court’s consideration of the issue is not barred by res judicata; where the defendant raises ineffective assistance of counsel at the post-conviction stage, and it is the same issue raised on direct appeal but only rephrased, res judicata will apply. Hodges v. State, 949 So. 2d 706, 2006 Miss. LEXIS 692 (Miss. 2006), cert. denied, 552 U.S. 1061, 128 S. Ct. 705, 169 L. Ed. 2d 552, 2007 U.S. LEXIS 12873 (U.S. 2007).

Defendant was not entitled to post-conviction relief based on ineffective assistance when res judicata barred some of the claims such as counsel’s failure to support a motion to suppress defendant’s confession, counsel’s failure to properly advise on plea bargains, counsel’s failure to introduce victims’ impact statement, and failure to properly prepare defendant to give his testimony; and defendant’s remaining claims lacked merit. Hodges v. State, 949 So. 2d 706, 2006 Miss. LEXIS 692 (Miss. 2006), cert. denied, 552 U.S. 1061, 128 S. Ct. 705, 169 L. Ed. 2d 552, 2007 U.S. LEXIS 12873 (U.S. 2007).

Record did not support defendant’s allegations that he had been given ineffective assistance by counsel for several alleged deficiencies, where defendant’s brief did not list or contain any possible defense witnesses that trial counsel should have called to testify or how that prejudiced his case; defendant failed to show that the defense counsel’s decision to forgo cross-examination of some witnesses was not sound trial strategy or that it prejudiced his case, and trial counsel’s conduct was within a wide range of reasonable conduct. Torrey v. State, 891 So. 2d 188, 2004 Miss. LEXIS 1375 (Miss. 2004), overruled in part, Gowdy v. State, 56 So.3d 540, 2010 Miss. LEXIS 656 (Miss. 2010).

Defendant was not denied effective assistance of counsel where, once the youth court had jurisdiction, it did not lose jurisdiction of defendant after he turned 18, but retained jurisdiction until defendant reached age 20; therefore, defendant’s assertion that his counsel was ineffective for failing to challenge the transfer was without merit. Hicks v. State, 870 So. 2d 1238, 2004 Miss. App. LEXIS 76 (Miss. Ct. App. 2004).

Defendant did not prove ineffective assistance of counsel where he signed a petition to enter a plea of guilty in which he stated that his lawyer was competent and defendant was fully satisfied with the advice and help he received; although defendant complained about the lack of pretrial investigation, he failed to tell the trial judge or the appellate court which facts in mitigation a further investigation would have revealed, so that defendant did not demonstrate prejudice, having not alleged anything that would have led to a different result. Hebert v. State, 864 So. 2d 1041, 2004 Miss. App. LEXIS 77 (Miss. Ct. App. 2004).

Defendants did not meet their burden of demonstrating deficient performance by trial counsel and resulting prejudice; counsel placed evidence before the jury that both witnesses had failed to identify a defendant and objected to questionable testimony. Powell v. State, 878 So. 2d 144, 2004 Miss. App. LEXIS 37 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 962 (Miss. 2004).

Defendant failed to present evidence that trial counsel was deficient in (1) failing to investigate and present mitigation evidence; (2) giving inadequate closing arguments by requesting mercy; and (3) failing to object to the two aggravating circumstances submitted by the State. Powers v. State, 883 So. 2d 20, 2003 Miss. LEXIS 850 (Miss. 2003), cert. denied, 543 U.S. 1155, 125 S. Ct. 1297, 161 L. Ed. 2d 121, 2005 U.S. LEXIS 1584 (U.S. 2005).

Defendant made no contention as to what efforts counsel could reasonably have been expected to produce in terms of evidence or information helpful to defendant’s defense; counsel’s failure to insist on further delay was not the deficient performance that would warrant relief and defendant failed to show the basis for the conclusion that any alternate courses of action had a reasonable chance of producing a result more favorable to him. Pickett v. State, 861 So. 2d 1049, 2003 Miss. App. LEXIS 631 (Miss. Ct. App. 2003).

Defendant failed to demonstrate a deficiency in his counsels’ overall performance sufficient to undermine the integrity of his trial and conviction; there was testimony that defendant had admitted shooting into the camp cabin and a confession to that effect, but counsel’s statements during closing presented an alternative defense theory, namely, that codefendant had put the shotgun to defendant’s head and ordered him to fire. Davis v. State, 849 So. 2d 1252, 2003 Miss. LEXIS 339 (Miss. 2003).

In accord with Provident Life & Acci. Ins. Co. v. Jemison, 153 Miss. 53, 120 So. 180, 1929 Miss. LEXIS 3 (Miss. 1929).. See Nixon v. Hargett, 194 F. Supp. 2d 501, 2002 U.S. Dist. LEXIS 6130 (S.D. Miss. 2002), aff'd, 405 F.3d 318, 2005 U.S. App. LEXIS 5219 (5th Cir. Miss. 2005).

The court rejected the contention that defense counsel rendered ineffective assistance to the defendant when he stated, while making an objection, that testimony by a witness should be heard outside the presence of the jury because some of the testimony might be damaging; the defendant asserted that the statement about some of the testimony being “damaging” was evidence of ineffective assistance of counsel, but such was not the case as counsel made no references to specific facts that could have prejudiced the jury. Rambus v. State, 804 So. 2d 1052, 2001 Miss. App. LEXIS 207 (Miss. Ct. App. 2001).

The defendant was not denied effective assistance of counsel in connection with his guilty plea, notwithstanding the defendant’s assertions that counsel advised him to plead guilty even though counsel knew of witnesses who could have given testimony that could have been used to prove innocence at trial and that the decision to plead guilty was forced on him by counsel, because (1) the circuit judge asked the defendant if his counsel had discussed the petition to plead guilty with him and if he understood everything within the petition, and the defendant answered that he understood, (2) the judge asked if the defendant had fully discussed all the circumstances surrounding the case with his counsel and whether or not his counsel had advised him of all possible defenses that he might have if the case went to trial, and the defendant responded affirmatively, and (3) the defendant was asked if he was satisfied with the advice that his counsel had given him, and he stated that he was. Sherrod v. State, 784 So. 2d 256, 2001 Miss. App. LEXIS 163 (Miss. Ct. App. 2001).

The defendant failed to establish ineffective assistance of counsel because (1) other than making bare allegations of how his counsel was ineffective, the defendant failed to identify specific acts or omissions by his trial counsel that in any way prejudiced his defense, and (2) a thorough review of the record showed that trial counsel more than adequately represented the defendant. Wansley v. State, 798 So. 2d 460, 2001 Miss. LEXIS 79 (Miss. 2001).

The defendant was not denied effective assistance of counsel during the guilty plea process, notwithstanding his contention that he was confused as to how much of his sentence he would be required to spend in jail because of the 85 percent law which had just been passed by the legislature in 1995, because (1) the defendant asked about the 85 percent rule, which was under review by the supreme court at the time, since he wanted to know if this rule would apply to him or not, (2) the judge told him he did not know if it would apply because the supreme court had not yet ruled on the issue, and (3) the judge also told him he did not know how the parole board handled parole eligibility, but that he did know the defendant would have to serve at least 10 years of his 20 year sentence. Clay v. State, 792 So. 2d 302, 2001 Miss. App. LEXIS 129 (Miss. Ct. App. 2001).

The defendant was not denied effective assistance of counsel, notwithstanding the 17-year-old defendant’s argument that his attorney advised him to plead guilty to charges where the record failed to substantiate his guilt, where (1) the defendant acknowledged that his counsel had met and conferred with him and his family and had discussed the facts of the case fully and completely, (2) he also specifically declared his involvement in the crimes, as well as asserting that he understood the charges against him and their possible sentences, (3) the testimony of defense counsel at the guilty plea hearing revealed that he had not only discussed the crimes with the defendant but had also met with his father numerous times to keep him apprized of the case, and (4) the defendant received a reduction in both counts against him prior to entering his pleas of guilty. Young v. State, 797 So. 2d 239, 2001 Miss. App. LEXIS 2 (Miss. Ct. App. 2001).

The defendant failed to establish ineffective assistance of counsel notwithstanding his assertion that his attorney did not investigate the case, coerced him into pleading guilty, and failed to seek suppression of illegally seized evidence, where (1) the trial court specifically found that the attorney had filed at least 31 motions on behalf of the defendant including motions seeking to have certain evidence suppressed and that the attorney provided effective assistance as counsel, and (2) the defendant failed to demonstrate that but for his attorney’s alleged ineffective assistance, a different result would have come from the charges against him. Taylor v. State, 782 So. 2d 166, 2000 Miss. App. LEXIS 592 (Miss. Ct. App. 2000).

In a prosecution for felony driving under the influence, no violation of the defendant’s right to effective assistance of counsel occurred when the district attorney, on cross-examination, asked the defendant if he ever told his lawyer who the people were who heard him ask for a breathalyzer test and defense counsel successfully objected to the question; no deficiency of counsel was shown and there was no showing of a hindrance put upon the defendant’s attorney-client privilege and, therefore, there was no violation of the defendant’s rights. Phillips v. State, 783 So. 2d 731, 2000 Miss. App. LEXIS 343 (Miss. Ct. App. 2000).

The defendant was not denied effective assistance of counsel, notwithstanding his assertion that his trial counsel failed to investigate thoroughly the circumstances of the crime at issue, where (1) at his plea hearing, the judge asked the defendant if his attorney had done everything he believed he should have done to represent him properly, and the defendant said yes, with the exception that he “should have got me a better plea bargain,” (2) the court then explained to the defendant that the court did not define its procedures as plea bargaining per se, but that the district attorney would reduce the charge if the defendant pled guilty and accepted a 15 year sentence on each charge, and the defendant accepted that and declined the court’s repeated offer to let the case go to trial, and (3) when asked by the court whether anyone, specifically his attorney, had pressured him into pleading guilty, the defendant responded that he had not. Taylor v. State, 766 So. 2d 830, 2000 Miss. App. LEXIS 414 (Miss. Ct. App. 2000).

The defendant was not denied effective assistance of counsel in a prosecution for capital rape of an 11 year-old girl, notwithstanding his assertions that his attorney did not disagree with a continuance filed by the state, inquire about the sexual history of the victim, or inquire as to why the victim did not immediately tell her mother about the incident in question, since the defendant did not present the court with any evidence demonstrating errors made by his counsel that were so serious as to deprive him of a fair trial and failed to demonstrate how such alleged errors prejudiced his defense in any way. Patton v. State, 766 So. 2d 115, 2000 Miss. App. LEXIS 411 (Miss. Ct. App. 2000).

The defendant was not denied effective assistance of counsel, notwithstanding his assertion that he was not informed of the terms of his plea agreement and that he expected a 12 year, rather than 25 year, sentence, where (1) according to the terms of the plea agreement and the petition, the defendant was aware that his guilty plea carried a maximum sentence of 30 years and that he would not be subject to the death penalty, (2) the defendant signed the plea agreement and signed and initialed the petition to enter plea, (3) at the sentencing hearing, the defendant acknowledged that he had completed nine years of school and that he could read and write and identified and verified his signature on the petition to enter plea, (4) when questioned by the court, the defendant indicated that his attorney had explained the entire petition to him, and that he was satisfied with the representation and services he had received from his attorney, and (5) the defendant was given an opportunity to make a statement or ask any questions prior to sentencing. Thomas v. State, 766 So. 2d 96, 2000 Miss. App. LEXIS 390 (Miss. Ct. App. 2000).

There was no merit to the defendant’s claim of ineffective assistance of counsel in connection with his guilty plea, notwithstanding the assertion that defense counsel was ineffective in that he made no effort to adequately defend the defendant against the criminal charges at issue, where the record established that defense counsel effectively counseled the defendant and that the defendant had no complaints regarding inadequate assistance of counsel at the time of his guilty plea: Jenkins v. State, 770 So. 2d 568, 2000 Miss. App. LEXIS 494 (Miss. Ct. App. 2000).

In accord with Coleman v. State, 749 So. 2d 1003, 1999 Miss. LEXIS 357 (Miss. 1999). See Lawrence v. State, 780 So. 2d 652, 2001 Miss. App. LEXIS 4 (Miss. Ct. App. 2001).

Trial counsel was not ineffective for failure to request competency hearing, despite defendant’s alleged organic brain damage and Dissociative Identity Disorder; court-ordered psychological examination concluded there was no evidence defendant suffered from mental disorder and the finding that defendant was competent to stand trial was not contradicted by defendant’s experts, and even if failure to request competency hearing fell below objective standard of reasonableness, defendant failed to prove any resulting prejudice. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

A defendant did not present sufficient evidence to show that he received ineffective assistance of counsel where the defendant simply cited actions of his attorney without explaining or justifying his contention that they should be characterized as deficient and prejudicial, and the defendant made no showing that his attorney’s alleged errors affected the outcome of the case. Ahmad v. State, 603 So. 2d 843, 1992 Miss. LEXIS 321 (Miss. 1992).

A capital murder defendant was not denied effective assistance of counsel on direct appeal by his attorney’s alleged failure to bring to the Supreme Court’s attention a plea bargain with an accomplice who testified as a witness, where the Supreme Court was well aware that the accomplice had been permitted to plead guilty to manslaughter and that he had been sentenced to 15 years’ imprisonment but had served only 2 1/2 years. Culberson v. State, 580 So. 2d 1136, 1990 Miss. LEXIS 428 (Miss. 1990), cert. denied, 502 U.S. 943, 112 S. Ct. 383, 116 L. Ed. 2d 334, 1991 U.S. LEXIS 6278 (U.S. 1991).

A defendant was not denied his right to effective assistance of counsel on the ground that his attorney gave the prosecution permission to interview the defense witnesses while allowing the prosecution to disallow the defendant from taking a deposition of the victim, since the defendant had no right to such a pre-trial deposition and the trial court lacked the authority to require the victim to talk with defense counsel where the victim was unwilling to do so; the defendant’s counsel could not be faulted as ineffective for failing to secure that which the defendant had no right to obtain. Jordan v. State, 577 So. 2d 368, 1990 Miss. LEXIS 785 (Miss. 1990).

Claim that counsel was ineffective because certain issues were procedurally barred due to ineffective assistance of counsel did not have merit because none of issues claimed had merit and thus failure to assert them could not constitute ineffective assistance of counsel. Wiley v. State, 517 So. 2d 1373, 1987 Miss. LEXIS 2915 (Miss. 1987), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 610, 1988 U.S. LEXIS 2458 (U.S. 1988).

Counsel’s conduct in failing to request change of venue, to move for continuance, and to object to exhumation of body of victim, was within range of competence demanded of attorneys in criminal cases and therefore did not constitute ineffective assistance of counsel. Merritt v. State, 517 So. 2d 517, 1987 Miss. LEXIS 2875 (Miss. 1987).

Defendant was not denied effective assistance of counsel at trial where review of record did not reveal any breakdown of adversary process due to assistance rendered by defendant’s trial counsel; trial counsel performed well under facts of case where there was overwhelming proof against his client; trial judge had found that allegation by defendant that counsel did not “have his heart” in representing him was incorrect, and that attorney was very diligent in trial preparation, as well as very competent and able. Burney v. State, 515 So. 2d 1154, 1987 Miss. LEXIS 2905 (Miss. 1987), but see McCarty v. State, 554 So. 2d 909, 1989 Miss. LEXIS 499 (Miss. 1989).

Defendant was not deprived of his Sixth Amendment rights by ineffective assistance of counsel where defendant alleged; counsel ineffectively assisted him by not retaining someone else to assist him; counsel failed to insure that pre-trial proceedings were recorded; counsel should have moved for change of venue either before trial or during voir dire; counsel’s conduct of voir dire was inadequate and prejudicial; counsel was unprepared for trial; that counsel conceded defendant’s client might be guilty of murder but not capital murder; and, counsel failed to present any expert psychological testimony at sentencing phase. Faraga v. State, 514 So. 2d 295, 1987 Miss. LEXIS 2656 (Miss. 1987), cert. denied, 487 U.S. 1210, 108 S. Ct. 2858, 101 L. Ed. 2d 894, 1988 U.S. LEXIS 2778 (U.S. 1988).

Defendant was not victim of ineffective assistance of counsel where trial record indicated defendant was represented by competent counsel dedicated to his defense. Johnson v. State, 511 So. 2d 1333, 1987 Miss. LEXIS 2558 (Miss. 1987), rev'd, 486 U.S. 578, 108 S. Ct. 1981, 100 L. Ed. 2d 575, 1988 U.S. LEXIS 2657 (U.S. 1988), in part, 484 U.S. 1003, 108 S. Ct. 693, 98 L. Ed. 2d 646, 1988 U.S. LEXIS 110 (U.S. 1988).

Defendant did not show ineffective assistance of counsel where he could not show requisite prejudice because evidence of his guilt was great, although he had shown that performance of trial counsel was deficient, where little or no effort to conduct independent investigation was made and trial counsel did not speak to client after learning that he was going to be tried as habitual offender. Ferguson v. State, 507 So. 2d 94, 1987 Miss. LEXIS 2502 (Miss. 1987).

Defendant was denied fair trial where trial judge, after admonishing defense counsel on several occasions about continuing ineffectual and repetitive cross-examination of state’s witnesses called for defense and stating that defendant’s counsel was providing state with inadmissible evidence to detriment of his client, had threatened defense counsel with jail in the presence of jury. Waldrop v. State, 506 So. 2d 273, 1987 Miss. LEXIS 2484 (Miss. 1987).

Defendant was denied effective assistance of counsel under Strickland v. Washington (1984) 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reh. den. 467 U.S. 1267, 82 L. Ed. 2d 864, 104 S. Ct. 3562 and on remand (CAll Fla.) 737 F.2d 894, habeas corpus proceeding (SD Fla.) 587 F. Supp. 525, affd (CAll Fla.) 737 F.2d 922 and later proceeding (Fla) 453 So 2d 389, because counsel’s efforts were both deficient and prejudicial, where defense counsel did not object to testimony that US Marshals were seeking defendant on parole violation and for escape from such parole, had objected to testimony concerning NCIC report only on ground that witness had testified incorrectly as to it, introduced NCIC into evidence himself, questioned witnesses concerning other alleged crimes of defendant, and made numerous frivolous objections, repeated refusals to follow rulings and instructions from bench, and requested information on how to introduce exhibit. Waldrop v. State, 506 So. 2d 273, 1987 Miss. LEXIS 2484 (Miss. 1987).

In a prosecution for capital murder resulting from the commission of armed robbery, the petitioner was not subjected to ineffective counsel in violation of his Sixth Amendment right since petitioner failed to prove that the failure to have the preliminary hearing was not a strategic move, since there was no indication that a change of venue could have effected a different result in the trial, since the guilty plea entered by the petitioner was free and voluntary, and since petitioner failed to show systematic exclusion of black jurors. Gilliard v. State, 462 So. 2d 710, 1985 Miss. LEXIS 1846 (Miss. 1985).

Evidence was insufficient to establish ineffective assistance of counsel. Provident Life & Acci. Ins. Co. v. Jemison, 153 Miss. 53, 120 So. 180, 1929 Miss. LEXIS 3 (Miss. 1929).

133. – Post-conviction proceedings, assistance of counsel.

Because there was no merit to petitioner’s claims that trial and appellate counsel were ineffective, counsel’s failure to raise the claims in the original postconviction relief proceedings did not prejudice petitioner. Grayson v. State, 118 So.3d 118, 2013 Miss. LEXIS 163 (Miss. 2013).

Because the jury in a capital case was informed adequately that a life sentence would be without parole, counsel’s failure to raise this claim in the original postconviction relief proceedings did not prejudice petitioner. Grayson v. State, 118 So.3d 118, 2013 Miss. LEXIS 163 (Miss. 2013).

Because the jury in a capital case was not unconstitutionally foreclosed by the jury instructions from considering all mitigating circumstances, counsel’s failure to raise this claim in the original postconviction relief proceedings did not prejudice petitioner. Grayson v. State, 118 So.3d 118, 2013 Miss. LEXIS 163 (Miss. 2013).

Because post-conviction relief (PCR) proceedings are a critical stage of the death-penalty appeal process at the state level, PCR petitioners who are under a sentence of death do have a right to the effective assistance of PCR counsel. Grayson v. State, 118 So.3d 118, 2013 Miss. LEXIS 163 (Miss. 2013).

Defendant’s convictions for murder and aggravated assault were proper where he failed to show that his counsel was ineffective on direct appeal. The court did not find the record to affirmatively show ineffectiveness of constitutional dimensions, nor did the court find any stipulation by the parties regarding the adequacy of the record. McGee v. State, 929 So. 2d 353, 2006 Miss. App. LEXIS 53 (Miss. Ct. App. 2006).

Where defendant had a post-conviction evidentiary hearing, defendant had no constitutional guarantee to appointed counsel, and as such, without a constitutional right to counsel, there could be no deprivation of effective assistance of counsel, and defendant’s attorney was active and effective during trial, and he filed a brief providing the appellate court with logical arguments and the brief resulted in the reversal of one of defendant’s convictions; therefore, defendant had not convinced it that but for his counsel’s deficiency, a different result would have occurred. Mitchell v. State, 879 So. 2d 1082, 2004 Miss. App. LEXIS 766 (Miss. Ct. App. 2004).

Where an inmate offered no proof that an attorney failed to conduct an investigation, did not file certain motions, and encouraged him to plead guilty to manslaughter, a claim of ineffective assistance of counsel was properly denied in a motion seeking post-conviction relief. Young v. State, 877 So. 2d 552, 2004 Miss. App. LEXIS 669 (Miss. Ct. App. 2004).

In a case related to the sale of cocaine, post-conviction relief was properly denied because appellant was not denied effective assistance of counsel as appellant’s claims about his indictment were moot, appellant having responded in the affirmative when the trial judge asked if he was satisfied with counsel; further, the signed guilty plea petition indicated that appellant was informed of the sentence he could receive and he stated he was satisfied with the representation of his counsel. Waites v. State, 872 So. 2d 758, 2004 Miss. App. LEXIS 429 (Miss. Ct. App. 2004).

In his motion for post-conviction relief, the inmate set forth sufficient evidence to undermine confidence in the outcome of the trial because counsel failed to (1) use information that a witness did not live in the apartment complex to impeach and discredit the witness’s statement that he saw the inmate leaving the victims’ apartment after the murder; (2) use the law enforcement’s door-to-door canvas of the apartment complex notes to discredit that witness; (3) discredit the statement that the inmate’s stepfather lived at the apartment complex, which provided the State with evidence placing the inmate near the victims at the time of their deaths; (4) present evidence that a shoe print found at the crime scene did not match his show size; and (5) show that two witnesses identified another suspect leaving the victims’ apartments at about the time of the murders. Therefore, the inmate was granted leave to seek post-conviction relief on the ground of ineffective assistance of counsel. Manning v. State, 884 So. 2d 717, 2004 Miss. LEXIS 469 (Miss. 2004).

Inmate’s request for leave to file an application seeking post-conviction relief was denied because the inmate was unable to show that the imposition of the death penalty was the result of ineffective assistance of counsel since defense counsel objected to the testimony of a pathologist, the admission of certain photographs, and a confession; moreover, the inmate failed to show how the introduction of medical records would have persuaded the jury to exercise leniency, and the inmate failed to show how a government-funded expert would have disputed the finding of the State’s expert. Holland v. State, 878 So. 2d 1, 2004 Miss. LEXIS 413 (Miss. 2004), cert. denied, 544 U.S. 906, 125 S. Ct. 1590, 161 L. Ed. 2d 280, 2005 U.S. LEXIS 2273 (U.S. 2005).

Inmate’s request for post-conviction relief was denied because there was no showing of ineffective assistance of counsel in a plea proceeding based on the failure to advise the inmate regarding whether to accept the plea; moreover, there was no deficient performance based on the issue of failing to secure a better plea in a statutory rape case. Kelley v. State, 913 So. 2d 379, 2005 Miss. App. LEXIS 277 (Miss. Ct. App. 2005).

Inmate was not denied effective assistance in a post-conviction proceeding because he had no state or federal right to counsel in the proceeding. Sheffield v. State, 881 So. 2d 249, 2003 Miss. App. LEXIS 998 (Miss. Ct. App. 2003), cert. dismissed, 2005 Miss. LEXIS 87 (Miss. Feb. 3, 2005).

In a capital murder case, the inmate filed an application for post-conviction relief based on ineffective assistance of counsel; however, several of the inmate’s ineffective assistance of counsel claims were procedurally barred because they had been discussed on direct appeal, the inmate failed to meet his burden of providing authority to support his assignment of error, and the unsworn statements of witnesses were insufficient to support the inmate’s allegations. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

Although defense counsel’s failure to request a new trial after a murder conviction amounted to deficient performance, there was no ineffective assistance of counsel because defendant failed to demonstrate a substantial likelihood that the outcome would have been different if the motion had been granted. Johnson v. State, 876 So. 2d 387, 2003 Miss. App. LEXIS 943 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 66, 2004 Miss. LEXIS 881 (Miss. 2004).

In a capital murder case, defendant’s petition for post-conviction relief was denied as the Supreme Court had already addressed the merits on direct appeal of his underlying ineffectiveness of counsel claims, which were found to be without merit; thus, defendant could not show the requisite deficient performance and resulting prejudice necessary to establish the ineffective assistance claims and they were res judicata. Walker v. State, 863 So. 2d 1, 2003 Miss. LEXIS 534 (Miss. 2003), cert. denied, 543 U.S. 842, 125 S. Ct. 281, 160 L. Ed. 2d 68, 2004 U.S. LEXIS 5982 (U.S. 2004).

Henderson v. State, 769 So. 2d 210, 2000 Miss. App. LEXIS 341 (Miss. Ct. App. 2000).

A death row inmate is entitled to appointed and compensated counsel to represent him in his state post-conviction efforts. Jackson v. State, 732 So. 2d 187, 1999 Miss. LEXIS 56 (Miss. 1999).

There is no right based in United States Constitution to counsel on discretionary successive review of a state appellate court’s decision; there being no right to counsel in state discretionary review, there can be no challenge to adequacy of counsel at that stage. Harris v. State, 704 So. 2d 1286, 1997 Miss. LEXIS 47 (Miss.), cert. denied, 522 U.S. 827, 118 S. Ct. 90, 139 L. Ed. 2d 47, 1997 U.S. LEXIS 4857 (U.S. 1997).

To merit post-conviction evidentiary hearing on issue of ineffective assistance of counsel, defendant’s allegations of counsel’s performance must raise sufficient questions of fact on issue of ineffective assistance of counsel. Walker v. State, 703 So. 2d 266, 1997 Miss. LEXIS 634 (Miss. 1997).

Post-conviction movant was entitled to evidentiary hearing on claim of ineffective assistance of trial counsel; trial counsel’s failure to raise certain objections may have frustrated movant’s right to fair trial and trial court’s limited analysis of claim fell short of sufficient inquiry to justify dismissing claim on the merits. Hymes v. State, 703 So. 2d 258, 1997 Miss. LEXIS 638 (Miss. 1997).

Although ineffective assistance of counsel claim may have been procedurally barred on ground that it was not raised on direct appeal, there was reasonable justification for lifting procedural bar in post-conviction relief proceeding, where record showed that counsel on appeal had submitted exceedingly incoherent brief. Hymes v. State, 703 So. 2d 258, 1997 Miss. LEXIS 638 (Miss. 1997).

After Court of Appeals granted state’s petition for rehearing and affirmed conviction which it had originally reversed, defendant showed good cause for extraordinary relief from rule prohibiting losing party from filing further petition for rehearing; defendant had no occasion to address Court of Appeals’ disposition of his ineffective assistance issues and filing motion for rehearing with Court of Appeals was prerequisite to seeking further relief in Supreme Court. Shaw v. State, 702 So. 2d 386, 1997 Miss. LEXIS 108 (Miss. 1997).

Defendant’s merely raising ineffective assistance of counsel claim was insufficient to surmount procedural bar to his untimely post-conviction petition. Bevill v. State, 669 So. 2d 14, 1996 Miss. LEXIS 70 (Miss. 1996).

Prima facie claim must be stated by defendant in post-conviction petition to lower court in order to obtain evidentiary hearing on merits of ineffective assistance of counsel issue. Robertson v. State, 669 So. 2d 11, 1996 Miss. LEXIS 68 (Miss. 1996).

A trial court did not err in failing to sua sponte appoint counsel for a post-conviction relief petitioner at the evidentiary hearing, in spite of the petitioner’s contention that it was clear that he lacked knowledge and understanding of the proceedings being conducted by the court. A criminal defendant has neither a state nor federal constitutional right to appointed counsel in post-conviction proceedings. Additionally, the appointment of counsel at an evidentiary hearing is discretionary with the trial judge by virtue of §99-39-23(1). Moore v. State, 587 So. 2d 1193, 1991 Miss. LEXIS 708 (Miss. 1991).

Claim that confession was taken in violation of defendant’s right to counsel was procedurally barred because it had not been raised in any previous court pleading, nor had defendant shown sufficient legal cause to excuse his failure to timely raise claim. Johnson v. State, 508 So. 2d 1126, 1987 Miss. LEXIS 2588 (Miss. 1987).

Claim of ineffective assistance of counsel is not procedurally viable where defendant waived issue when he declined to assert that point in his error coram nobis pleading; defendant had not shown sufficient cause to excuse this waiver where record reflected that trial counsel exited state court proceedings at conclusion of direct appeal and did not participate in presentation of error coram nobis pleading. Johnson v. State, 508 So. 2d 1126, 1987 Miss. LEXIS 2588 (Miss. 1987).

The application of the procedural bar of Mississippi Code §99-39-21(1) would be inappropriate to a defendant who had had no earlier meaningful opportunity to present issue of denial of effective assistance of counsel. Perkins v. State, 487 So. 2d 791, 1986 Miss. LEXIS 2389 (Miss. 1986).

Petitioner who, although he had had opportunity to do so, had not earlier raised the issue of ineffectiveness of counsel did not meet the requirement of “cause” in Mississippi Code §99-39-21(4). Evans v. State, 485 So. 2d 276, 1986 Miss. LEXIS 2403 (Miss.), cert. denied, 476 U.S. 1178, 106 S. Ct. 2908, 90 L. Ed. 2d 994, 1986 U.S. LEXIS 1704 (U.S. 1986).

In a prosecution for possession with intent to deliver a controlled substance, in violation of §§41-29-115,41-29-117, and41-29-119, the record failed affirmatively to establish denial of defendants’ right to effective assistance of counsel; nevertheless, affirmance of the judgment of conviction would not preclude defendants from litigating the issue via proper post-conviction proceedings. Read v. State, 430 So. 2d 832, 1983 Miss. LEXIS 2525 (Miss. 1983).

Sixth and Fourteenth Amendments’ right of counsel to an accused no longer applies after conviction upon appeal. Neal v. State, 422 So. 2d 747, 1982 Miss. LEXIS 2319 (Miss. 1982).

All defendants, whether indigent or not, have a constitutional right to legal counsel in any criminal proceeding filed against them, and any conviction obtained by fraud, perjury or other corrupt means may be corrected by proper post-conviction remedies. Therefore, it is not unreasonable to require a plaintiff to show that a criminal proceeding terminated in his favor before allowing recovery in a malicious prosecution action based on such criminal proceeding. Pugh v. Easterling, 367 So. 2d 935, 1979 Miss. LEXIS 2225 (Miss. 1979).

134. – Failure to file motion for reconsideration as ineffective assistance of counsel, assistance of counsel.

Appellate court rejected a prisoner’s claim that counsel provide ineffective assistance by failing to file a timely motion for reconsideration; the record did not contain a motion for reconsideration or an order finding that such a motion was untimely. In any event, assuming counsel had filed a timely motion for reconsideration, there was no reason to assume that there was a sufficient probability that the circuit court would have reversed itself. Wallace v. State, 982 So. 2d 1027, 2008 Miss. App. LEXIS 332 (Miss. Ct. App. 2008).

101. - Substituted counsel, assistance of counsel.

Trial court acted within its discretion in denying defendant’s motions for a continuance and a new attorney and the motion to withdraw filed by defendant’s attorney because defendant affirmatively stated four days before trial that he would like the attorney to represent him; any conflict that existed was the result of defendant’s own actions; the attorney adequately represented defendant as she raised appropriate objections and cross-examined the State’s witnesses, and repeatedly attacked the validity of the DNA evidence introduced at trial; and defendant was not deprived of due process or a fair trial based on the overwhelming evidence introduced against him. Hill v. State, — So.3d —, 2018 Miss. LEXIS 364 (Miss. Aug. 23, 2018).

133. — Post-conviction proceedings, assistance of counsel.

Defendant did not show that trial counsel’s failure to file post-trial motions violated his constitutional right to the effective assistance of counsel because no reasonable probability existed that the trial court would have granted his motion for judgment notwithstanding the verdict; defendant confessed to his involvement in the crimes, and the victim’s testimony established that, while defendant did not commit the acts himself, he accompanied and encouraged others. Pace v. State, 242 So.3d 107, 2018 Miss. LEXIS 199 (Miss. 2018).

135. Change of venue.

Post-conviction relief was properly denied where trial counsel’s failure to seek a change of venue because of pretrial publicity was not error, as most of the venire was largely unaware of the case, and those who were unaware of it assured counsel and the trial court that they could be impartial. Thong Le v. State, 967 So. 2d 627, 2007 Miss. LEXIS 452 (Miss. 2007), cert. denied, 552 U.S. 1300, 128 S. Ct. 1747, 170 L. Ed. 2d 547, 2008 U.S. LEXIS 2913 (U.S. 2008).

On the inmate’s petition for post-conviction relief, the court held that defense counsel’s decision not to seek a change of venue based on pretrial publicity was beyond its review. Brawner v. State, 947 So. 2d 254, 2006 Miss. LEXIS 625 (Miss. 2006).

Federal district court correctly denied state death row inmate’s habeas corpus petition; the venue chosen for petitioner’s resentencing hearing was proper, even though it was in the county in which the crimes occurred, and even though the trial venue had been changed to a different county due to excessive pretrial publicity, because years had passed since petitioner had been found guilty, and although two of selected resentencing jurors had some knowledge of the case, petitioner failed to prove that the resentencing jury was tainted. Holland v. Anderson, 439 F. Supp. 2d 644, 2006 U.S. Dist. LEXIS 46788 (S.D. Miss. 2006).

In an indecent exposure, reckless driving, and malicious mischief case, defendant did not receive inadequate notice of the nature and cause of the accusations against him as all three affidavits quoted the relevant language of the applicable statutes and there was no requirement that the formal name or statutory section be listed. As a result, all three of the affidavits were facially sufficient. Johnson v. State, 879 So. 2d 1057, 2004 Miss. App. LEXIS 554 (Miss. Ct. App. 2004), overruled in part, Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

In a capital murder case, the trial court did not err in denying defendant’s request for a change of venue as no evidence was offered of any threatened violence toward defendant, nor was there an inordinate amount of media coverage, the testimony of the State’s witnesses demonstrated that defendant could receive a fair trial, defendant offered no additional evidence to rebut the State’s witnesses, and defendant did not present any evidence that he could not receive or had not received a fair trial from the jurors who heard his case. Howell v. State, 860 So. 2d 704, 2003 Miss. LEXIS 556 (Miss. 2003), cert. dismissed, 543 U.S. 440, 125 S. Ct. 856, 160 L. Ed. 2d 873, 2005 U.S. LEXIS 1371 (U.S. 2005).

136. Leading questions.

Defendant was not denied the effective assistance of counsel during his trial for the sale of marijuana; although there were instances of leading questions asked by the State without objection from defendant’s counsel, the court found no prejudice to defendant. Anderson v. State, 904 So. 2d 973, 2004 Miss. LEXIS 1378 (Miss. 2004).

137. Miscellaneous reports and records.

In a grand larceny case, the self-authenticating pen-packs were not inadmissible as a violation of the Confrontation Clause as the certificate on the pen-packs indicated that the custodian of records swore that the documents were true and correct copies, not that defendant actually committed any act. Accordingly, the “matter asserted” was that the pen-packs were accurate copies of official records, not that defendant was, in fact, a habitual offender, making the pen-packs admissible. Frazier v. State, 907 So. 2d 985, 2005 Miss. App. LEXIS 158 (Miss. Ct. App. 2005).

138. Other particular homicides.

Defendant’s right to a speedy trial was not violated because although the total delay in the case was lengthy, the majority of the delay was justified by good cause or was attributable to defendant’s actions; a witness’s unavailability constituted good cause for the final delay in the case because it gave the parties additional time to attempt to locate the witness and allowed defendant time to prepare for trial in his absence. Newell v. State, 175 So.3d 1260, 2015 Miss. LEXIS 505 (Miss. 2015).

Even if defendant’s trial counsel was deficient in allegedly failing to make numerous potential objections to hearsay and other improper evidence, there was no reasonable probability that the proceeding would have been different given the plethora of evidence against defendant, including his confession that he had “killed the bitch.” While trial counsel’s performance may have been less than perfect, there was nothing in the record that proved that trial counsel’s performance was not within the “wide range of reasonable professional assistance.” Gibson v. State, 895 So. 2d 185, 2004 Miss. App. LEXIS 1142 (Miss. Ct. App. 2004).

139. – Other particular circumstances.

Circuit court did not err in allowing defendant to represent himself because the circuit court abided by the law and the requirements of Miss. Unif. Cir. & Cty. R. 8.05; defendant made a knowing and intelligent waiver of his Sixth Amendment right to assistance of counsel, defendant knew that he had a right to counsel because counsel had been appointed to represent him, and defendant knew that his court-appointed counsel was representing him both before and after he elected to manage his own defense since he expressly agreed to counsel’s continued assistance. Bradley v. State, 58 So.3d 1166, 2011 Miss. LEXIS 175 (Miss. 2011).

On the inmate’s petition for post-conviction relief, the court held that the inmate was not prejudiced by counsel’s failure to transcribe the full record because the inmate did not claim any specific error arising from the non-transcribed sections of the record. Brawner v. State, 947 So. 2d 254, 2006 Miss. LEXIS 625 (Miss. 2006).

Defendant, who entered a guilty plea pursuant to a plea agreement, contended in his post-conviction action that he received ineffective assistance of counsel since his counsel failed to file a motion for discovery. However, defendant provided no assertion of critical evidence that would have been discovered had it not been for counsel’s alleged deficiency; moreover, the record was clear that on two separate occasions, defendant answered the trial court that he was satisfied with trial counsel’s performance, and therefore, defendant did not meet his burden of proof that counsel was ineffective. Moore v. State, 906 So. 2d 793, 2004 Miss. App. LEXIS 1152 (Miss. Ct. App. 2004).

139. — Other particular circumstances.

Defendant was not forced to proceed pro se without knowingly or voluntarily waiving his right to an attorney because after being warned of the dangers of self-representation, defendant made it clear that he wished to take the “lead” role in a “co-counsel” arrangement with his court-appointed attorney; defendant was never left to his own defense as a wholly pro se litigant but always had access to counsel. Lofton v. State, 248 So.3d 798, 2018 Miss. LEXIS 183 (Miss. 2018).

140. Lineup.

After the detective informed defendant that he was not required to participate in a lineup without counsel, the trial court erroneously concluded that defendant’s silence was an intelligent waiver of his right to counsel. Brooks v. State, 903 So. 2d 691, 2005 Miss. LEXIS 191 (Miss. 2005).

Amendment VII Civil trials

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.

Cross References —

Right to jury trial in criminal cases, see USCS Const Art III, § 2, cl. 3.

RESEARCH REFERENCES

ALR.

Right to jury trial in stockholder’s derivative action. 32 A.L.R.4th 1111.

Right to jury trial in action for declaratory relief in state court. 33 A.L.R.4th 146.

Jury trial waiver as binding on later state civil trial. 48 A.L.R.4th 747.

Small claims: jury trial rights in, and on appeal from, small claims court proceeding. 70 A.L.R.4th 1119.

Right to jury trial in child neglect, child abuse, or termination of parental rights proceedings. 102 A.L.R.5th 227.

Complexity of civil action as affecting Seventh Amendment right to trial by jury. 54 A.L.R. Fed. 733.

Waiver of right to trial by jury as affecting right to trial by jury on subsequent trial of same case in federal court. 66 A.L.R. Fed. 859.

Sufficiency of demand for jury trial under Rule 38(b) of Federal Rules of Civil Procedure.73 A.L.R. Fed. 698.

Right to jury trial on issue of damages in copyright infringement actions under 17 U.S.C.S. § 504. 163 A.L.R. Fed. 467.

Right of enemy combatant to counsel. 184 A.L.R. Fed. 527.

CJS.

C.J.S. Juries §§ 26, 28 to 32.

JUDICIAL DECISIONS

1. In general.

Chancellor erred by failing to transfer a dispute over contractual obligations to a circuit court because a former member did not bring most of the claims derivatively under Miss. Code Ann. §79-4-7.40 since he was seeking a personal recovery, and the proper procedures were not followed; moreover, the parties would have been deprived of the right to a jury trial if transfer was not obtained. ERA Franchise Sys. v. Mathis, 931 So. 2d 1278, 2006 Miss. LEXIS 337 (Miss. 2006).

While limited nature of court’s resources is not legitimate reason for it to deny party the right to jury trial, if jury is indeed mandated by the Seventh Amendment, such policy concerns should not be overlooked. Gordon v. Friedman's Inc. (In re Gordon), 209 B.R. 414, 1997 Bankr. LEXIS 1052 (Bankr. N.D. Miss. 1997).

Chapter 13 debtor was not entitled to jury trial on her damages claims against creditor for its alleged intentional infliction of emotional distress, negligent infliction of emotional distress, and slander in connection with its postpetition efforts to collect prepetition debt, though jury trial would have been available to debtor on such claims absent her bankruptcy filing; debtor’s claims, which arose from creditor’s alleged violation of automatic stay, involved adjustment of debtor-creditor relationship and implicated public rights, particularly where creditor had filed proof of claim. Gordon v. Friedman's Inc. (In re Gordon), 209 B.R. 414, 1997 Bankr. LEXIS 1052 (Bankr. N.D. Miss. 1997).

Claimants who were asserting uninsured motorists claims were not entitled to a jury trial in chancery court or to have the case transferred to circuit court in order to provide them with a jury trial in an interpleader action brought by the insurer where the facts of the case were not disputed and only the law applicable to those facts was questioned by the parties. Cossitt v. Nationwide Mut. Ins. Co., 551 So. 2d 879, 1989 Miss. LEXIS 318 (Miss. 1989), overruled in part, Meyers v. Am. States Ins. Co., 914 So. 2d 669, 2005 Miss. LEXIS 322 (Miss. 2005).

A child who brought an action to establish heirship had no right to a trial by jury. Estate of Robinson v. Gusta, 540 So. 2d 30, 1989 Miss. LEXIS 137 (Miss. 1989).

State courts are not controlled by this provision, even in cases arising under Federal statutes, and so on appeal may render final judgment contrary to the verdict, where the trial court should have directed a verdict. Gulf & S. I. R. Co. v. Hales, 140 Miss. 829, 105 So. 458, 1925 Miss. LEXIS 313 (Miss. 1925).

Amendment VIII Excessive bail, fines, punishments

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

RESEARCH REFERENCES

ALR.

Propriety of carrying out death sentences against mentally ill individuals. 111 A.L.R.5th 491.

Application of constitutional rule of Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), that execution of mentally retarded persons constitutes “cruel and unusual punishment” in violation of Eighth Amendment. 122 A.L.R.5th 145.

When does forfeiture of real property violate excessive fines clause of Eighth Amendment or state constitutions-State cases. 124 A.L.R.5th 509.

Administration of corporal punishment in public school system as cruel and unusual punishment under Eighth Amendment. 25 A.L.R. Fed. 431.

Imposition of enhanced sentence under recidivist statute as cruel and unusual punishment. 27 A.L.R. Fed. 110.

When does forfeiture of currency, bank account, or cash equivalent violate excessive fines clause of Eight Amendment. 164 A.L.R. Fed. 591.

Am. Jur.

21 Am Jur 2d, Criminal Law §§ 556, 565-570.

18 Am Jur Proof of Facts 2d 149, Excessive Bail.

CJS.

C.J.S. Bail; Release and Detention Pending Proceedings § 69.

C.J.S. Criminal Law §§ 1593, 1604.

Lawyers’ Edition.

Conditions of confinement as constituting cruel and unusual punishment in violation of Federal Constitution’s Eighth Amendment-Supreme Court cases. 115 L. Ed. 2d 1151.

Duration of prison sentence as constituting cruel and unusual punishment in violation of Federal Constitution’s Eighth Amendment-Supreme Court cases. 115 L. Ed. 2d 1169.

Law Reviews.

Cartwright, Death on a whim: jury discretion and “Especially Heinous” crimes. 9 Miss College L. R. 357, Spring 1989.

1989 Mississippi Supreme Court Review: Eighth Amendment. 59 Miss L. J. 842, Winter, 1989.

Do the Crime, Do the Time, but the Time should Fit the Crime: Does Mississippi Need Sentencing Guidelines?: White v. State, 742 So. 2d 1126 (Miss. 1999), 21 Miss. C. L. Rev. 121, Fall, 2001.

JUDICIAL DECISIONS

1. Construction and application.

2. Constitutionality.

3. Construction with Amendment XIV.

4. Competency of person to be executed.

5. Statutes and court rules.

6. Educational institutions.

7. Jury exemption.

8. Conduct of trial.

9. Sanity determinations.

10. Intellectual disability.

11. Injury to inmate.

12. Pleadings.

13. Capital sentencing procedures – In general.

14. – Aggravating and mitigating circumstances, capital sentencing procedures.

15. – Juror qualification, capital sentencing procedures.

16. – Arguments of counsel, capital sentencing procedures.

17. – Instructions, capital sentencing procedures.

18. Cruel and unusual punishment – In general.

19. – Age of defendant, cruel and unusual punishment.

20. – Termination of parental rights, cruel and unusual punishment.

21. – Sentences within statutory limit, cruel and unusual punishment.

22. – Disproportionate sentence, cruel and unusual punishment.

23. – Capital prosecution of juveniles, cruel and unusual punishment.

24. – Capital punishment, cruel and unusual punishment.

24.5. – Delay in carrying out execution.

25. Lethal injection, cruel and unusual punishment.

26. – Juvenile detention, cruel and unusual punishment.

27. – Confinement conditions for inmates, cruel and unusual punishment.

28. Medical care of inmates.

29. – Solitary confinement, cruel and unusual punishment.

30. – Habitual offenders, cruel and unusual punishment.

31. Murder and manslaughter.

32. Robbery.

33. Competency of person to be executed.

34. Batson Challenge.

35. Sentence appropriate.

1. Construction and application.

In a capital murder case, the State’s invocation of higher biblical law did not violate the inmate’s rights under the Eighth and Fourteenth Amendments, or under Miss. Const. Art. 3, § 14, because the prosecutor was responding to the biblical argument made by the inmate’s attorney; also, the inmate’s ineffective assistance of counsel claim for counsels’ failure to object to the State’s biblical references had to fail. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

Although all of petitioner death row inmate’s arguments were procedurally barred either by res judicata or for failure to raise the arguments earlier, and no intervening case law exempted petitioner from the procedural bar, the court also reviewed petitioner’s arguments on the merits; it reiterated its earlier holdings that there were no constitutional deficiencies in the Mississippi murder and death penalty statutes, including those relating to death resulting from child abuse as capital murder, and that none of the alleged deficiencies of defense counsel could have affected petitioner’s outcome. Jackson v. State, 860 So. 2d 653, 2003 Miss. LEXIS 355 (Miss. 2003).

The Eighth Amendment does not apply to the fact of incarceration, but rather to its conditions. Jones v. City of Jackson, 203 F.3d 875, 2000 U.S. App. LEXIS 1992 (5th Cir. Miss. 2000).

The Eighth Amendment imposes a duty upon responsible prison officials to protect prisoners from violence at the hands of other prisoners. Earrey v. Chickasaw County, 965 F. Supp. 870, 1997 U.S. Dist. LEXIS 10990 (N.D. Miss. 1997).

In a capital murder prosecution, the prosecutor’s references to a second victim did not violate the Eighth and Fourteenth Amendments, since these references were necessary to tell the complete story of the crime where both victims were killed in the same mobile home with the same gun. Ladner v. State, 584 So. 2d 743, 1991 Miss. LEXIS 434 (Miss.), cert. denied, 502 U.S. 1015, 112 S. Ct. 663, 116 L. Ed. 2d 754, 1991 U.S. LEXIS 7261 (U.S. 1991).

2. Constitutionality.

Defendant’s sentence of death by lethal injection for the crime of capital murder with the underlying felony of robbery was not unconstitutional because defendant’s due process rights were not violated as the indictment and jury instructions were sufficient, the aggravating circumstances supported the sentence, and Mississippi’s lethal-injection protocol did not constitute cruel and unusual punishment. Batiste v. State, 121 So.3d 808, 2013 Miss. LEXIS 295 (Miss. 2013), cert. denied, 572 U.S. 1117, 134 S. Ct. 2287, 189 L. Ed. 2d 178, 2014 U.S. LEXIS 3424 (U.S. 2014).

Defendant’s enhanced sentence of 60 years, a two million dollar fine, and fifty dollars in restitution, pursuant to Miss. Code Ann. §41-29-152, for possession of methamphetamine with intent to distribute and possession of a firearm while intending to distribute, was not disproportionate to the crime committed and did not amount to cruel and unusual punishment in violation of the Eighth Amendment because his sentence did not exceed the statutory limits. Even though defendant was a first time offender and possessed a small amount of methamphetamine, the trial judge had discretion under Miss. Code Ann. §41-29-149 to reduce the statutory sentence for first time offenders; however, the trial court was not required to take into account the first time offender status when sentencing. Passman v. State, 937 So. 2d 17, 2006 Miss. App. LEXIS 89 (Miss. Ct. App.), cert. denied, 936 So. 2d 367, 2006 Miss. LEXIS 482 (Miss. 2006), cert. denied, 549 U.S. 1324, 127 S. Ct. 1914, 167 L. Ed. 2d 570, 2007 U.S. LEXIS 3842 (U.S. 2007).

Defendant’s capital murder conviction in violation of Miss. Code Ann. §97-3-19(2)(a) was proper where the statute did not violate U.S. Const. amends. VIII and XIV. The fact that Mississippi’s capital murder scheme made the death penalty a possible punishment for felony murder where there was no requirement to prove an intent to kill did not make the Mississippi capital murder statute unconstitutional. Davis v. State, 914 So. 2d 200, 2005 Miss. App. LEXIS 269 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 746 (Miss. 2005), cert. denied, 549 U.S. 856, 127 S. Ct. 133, 166 L. Ed. 2d 98, 2006 U.S. LEXIS 6743 (U.S. 2006).

3. Construction with Amendment XIV.

Pretrial detainees are protected from harm by virtue of the Due Process clause of the Fourteenth Amendment, while convicted inmates are protected from harm by the Eighth Amendment’s prohibition against cruel and unusual punishment. Earrey v. Chickasaw County, 965 F. Supp. 870, 1997 U.S. Dist. LEXIS 10990 (N.D. Miss. 1997).

Where parolee is incarcerated, both Fourteenth Amendment due process concerns and the Eighth Amendment’s prohibition against cruel and unusual punishment are implicated, but the presumptive intent to punish derived from the Bell test does not arise in such a case involving conditions of confinement; rather, detained parolee may establish a Fourteenth Amendment due process claim for the conditions of his confinement only where he can present direct evidence of an expressed intent to punish him for the crime for which he has been charged but not yet convicted, but even without the availability of the Bell test, he may still utilize the Eighth Amendment to pursue a separate claim regarding conditions of confinement. Earrey v. Chickasaw County, 965 F. Supp. 870, 1997 U.S. Dist. LEXIS 10990 (N.D. Miss. 1997).

Parolee detained pending the resolution of new charges against him, without evidence that he was “punished” because of the new, pending charges against him, could not avail himself of Bell test and its inference of intent for claims arising under the Fourteenth Amendment, based on attack by other inmates, but he could pursue a “failure to protect” claim under the Eighth Amendment. Earrey v. Chickasaw County, 965 F. Supp. 870, 1997 U.S. Dist. LEXIS 10990 (N.D. Miss. 1997).

4. Competency of person to be executed.

In defendant’s postconviction relief action, defendant submitted to the Mississippi Supreme Court an affidavit of an expert who testified that defendant had received intelligence quotient (IQ) scores of below 75 percent, and who opined to a reasonable degree of psychological certainty that defendant was mentally retarded. While the Mississippi Supreme Court’s decision in Chase v. State governed the determination of the case, and under Chase, there were other factors that defendant had to present to the trial court in order to prove mental retardation so as to avoid the death penalty, defendant minimally met defendant’s burden of production so as to be entitled to an evidentiary hearing. Snow v. State, 875 So. 2d 188, 2004 Miss. LEXIS 669 (Miss. 2004).

In defendant’s capital murder case, the death sentence did not violate defendant’s Eight Amendment rights where defendant’s expert witness did not offer the opinion that defendant was mentally retarded; instead, he testified that defendant functioned in the range of borderline retardation which described an IQ range higher than that for mental retardation Thus, defendant did not establish that he was entitled to a Chase hearing. Scott v. State, 878 So. 2d 933, 2004 Miss. LEXIS 650 (Miss. 2004).

5. Statutes and court rules.

Section99-19-57 does not unconstitutionally restrict rights of defendants, as it is harmonious with the import of the Eighth Amendment prohibition against cruel and unusual punishment as interpreted in Ford v Wainwright (1985, US) 91 L Ed 2d 335, 106 S Ct 2595. Billiot v. State, 655 So. 2d 1, 1995 Miss. LEXIS 88 (Miss. 1995), cert. denied, 516 U.S. 1095, 116 S. Ct. 818, 133 L. Ed. 2d 762, 1996 U.S. LEXIS 787 (U.S. 1996).

The time limitations provisions of the Mississippi Uniform Post-Conviction Collateral Relief Act (§§99-39-1 et seq.) do not work an unconstitutional suspension of the writ of habeas corpus. Cole v. State, 608 So. 2d 1313, 1992 Miss. LEXIS 557 (Miss. 1992).

Section 63-11-30, which imposes a maximum 5-year penalty for the operation of a vehicle in violation of the implied consent law coupled with negligently causing the death or mutilation of another, is not arbitrary and does not constitute cruel and unusual punishment. Banks v. State, 525 So. 2d 399, 1988 Miss. LEXIS 235 (Miss. 1988).

The capital murder statute (§99-19-101) does not impose cruel and unusual punishment. Coleman v. State, 378 So. 2d 640, 1979 Miss. LEXIS 2542 (Miss. 1979).

Discretion of prosecutor and his power to plea bargain did not render capital murder law unconstitutional, since both practices are necessary to the system of justice, nor did imposition of the mandatory death penalty pursuant to the statute constitute cruel and unusual punishment, especially since there was no showing that it was discriminatorily applied. Stevenson v. State, 325 So. 2d 113, 1975 Miss. LEXIS 1601 (Miss. 1975).

A statute authorizing the continued detention of a convicted person after expiration of the term for which he was sentenced, in default of payment by him of the costs of prosecution, does not impose unusual punishment where in no event can such detention continue for longer than two years. Ex parte McInnis, 98 Miss. 773, 54 So. 260, 1910 Miss. LEXIS 123 (Miss. 1910).

6. Educational institutions.

Suit alleging that school official grabbed arm of student did not show type of action calculated to cause serious injury, nor did not such act evince malice or intention to cause injury, and even if serious injuries may have resulted, nature of contact suggested that any injuries were unintended rather than calculated and that if force used was in fact excessive, it came from carelessness or excess of zeal rather than malice. Whether physical harm by state officer rises to level of constitutional deprivation depends on extent of injury inflicted, degree of force used in proportion to amount necessary under circumstances, and motives of official; bottom-line inquiry is whether official’s conduct amounted to abuse of official power that shocks conscience. Cole v. Newton Special Municipal Separate School Dist., 676 F. Supp. 749, 1987 U.S. Dist. LEXIS 12455 (S.D. Miss. 1987), aff'd, 853 F.2d 924, 1988 U.S. App. LEXIS 10868 (5th Cir. Miss. 1988).

7. Jury exemption.

Mississippi’s exemption of jurors who are illiterate or under 21 years of age, pursuant to §13-5-1, or over 65 years of age, pursuant to §13-5-25, did not violate the defendant’s rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution.Turner v. State, 573 So. 2d 657, 1990 Miss. LEXIS 792 (Miss. 1990), cert. denied, 500 U.S. 910, 111 S. Ct. 1695, 114 L. Ed. 2d 89, 1991 U.S. LEXIS 2522 (U.S. 1991).

8. Conduct of trial.

In a capital murder case, a jury instruction cautioning not to be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling was properly given and did not violate defendant’s Eight Amendment right, because it did not inform the jury that it had to disregard in toto sympathy. Flowers v. State, 842 So. 2d 531, 2003 Miss. LEXIS 149 (Miss. 2003).

In a murder prosecution involving a victim who died of smoke inhalation after receiving a blow to the head, the admission of facts concerning the murder of another victim who died from shotgun wounds did not violate the defendant’s rights under the Eighth Amendment to the federal constitution or the due process clauses of the Mississippi Constitution and the federal constitution, where the revelation that a second person was missing was necessary in putting together the pieces of the case, evidence that the investigating officers discovered 2 bodies in the trunk of the victim’s car was unavoidable, and the testimony of the other victim’s mother was necessary in that she was the only witness who could testify to seeing the defendant near the victim’s house, she was able to discuss what the victim was doing on the day he was killed, and she was able to give some important time frames. Mackbee v. State, 575 So. 2d 16, 1990 Miss. LEXIS 831 (Miss. 1990).

There is no discovery violation as to an officer’s notes, taken in the presence of witnesses and destroyed in good faith. Thus, the destruction of original handwritten notes of a defendant’s statement, which were transcribed into a typed statement, and admission of the typed statement into evidence, did not deprive the defendant of his rights to a fair and impartial trial and adequate defense as provided by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Woodward v. State, 533 So. 2d 418, 1988 Miss. LEXIS 492 (Miss. 1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1767, 104 L. Ed. 2d 202, 1989 U.S. LEXIS 2004 (U.S. 1989).

9. Sanity determinations.

A trial court’s denial of a capital murder defendant’s request for a private mental examination did not violate the Eighth and Fourteenth Amendments, where the defendant did not attempt to use an insanity defense, the State did not produce psychiatric testimony against him, and he did not demonstrate that sanity was to be a significant factor at trial. Ladner v. State, 584 So. 2d 743, 1991 Miss. LEXIS 434 (Miss.), cert. denied, 502 U.S. 1015, 112 S. Ct. 663, 116 L. Ed. 2d 754, 1991 U.S. LEXIS 7261 (U.S. 1991).

A defendant was not improperly denied the assistance of an independent privately employed psychiatrist in violation of his Sixth, Eighth and Fourteenth Amendment rights where the defendant requested and received a psychiatric examination and evaluation to determine his mental condition, resulting in the unanimous determination of 5 medical professionals that the defendant was sane at the time of the charged offense and was competent to aid in his defense. Lanier v. State, 533 So. 2d 473, 1988 Miss. LEXIS 523 (Miss. 1988).

Defendant was entitled to in-court opportunity to prove his claims of present insanity where he had presented allegations under oath which, if true, brought into serious question legality of execution under both state and federal law; defendant had presented court with application for relief backed by affidavits of 3 mental health professionals. Billiot v. State, 515 So. 2d 1234, 1987 Miss. LEXIS 2914 (Miss. 1987).

10. Intellectual disability.

While Atkins determinations, as to whether one is intellectually disabled and therefore imposing the death penalty would violate the Eighth Amendment, are legal decisions, they are decisions that must be informed by medical experts, and the trial judge abused her discretion by denying the State’s motion to evaluate petitioner; the state hospital did not assess in 2006 whether petitioner had an intellectual disability, and instead it was the trial judge, not the expert, who opined that no further assessment was necessary, which was error. State v. Russell, 238 So.3d 1105, 2017 Miss. LEXIS 454 (Miss. 2017).

Trial court erred by holding that defendant was not intellectually disabled for capital sentencing purposes where it applied an incorrect legal standard by treating defendant’s IQ score of between 70 and 75 alone as dispositive of the case and by failing to balance and analyze his adaptive functioning deficits with his IQ score, even though the trial court found that defendant had proved the existence of two adaptive functioning deficits. Carr v. State, 196 So.3d 926, 2016 Miss. LEXIS 324 (Miss. 2016).

Definitions of intellectual disability promulgated by the American Association on Intellectual and Developmental Disabilities in 2010 and the American Psychiatric Association in 2013 may be used in Mississippi courts in determining whether a criminal defendant is intellectually disabled for the purposes of the Eighth Amendment. Chase v. State, 171 So.3d 463, 2015 Miss. LEXIS 194 (Miss. 2015), cert. denied, — U.S. —, 137 S. Ct. 1431, 197 L. Ed. 2d 647, 2017 U.S. LEXIS 2222 (U.S. 2017).

In a capital murder case where defendant was sentenced to death, the circuit court did not clearly err by finding that defendant failed to prove intellectual disability by a preponderance of the evidence because, although defendant met his burden of proof of subaverage intellectual functioning, defendant failed to prove that he had significant deficits in adaptive functioning. Chase v. State, 171 So.3d 463, 2015 Miss. LEXIS 194 (Miss. 2015), cert. denied, — U.S. —, 137 S. Ct. 1431, 197 L. Ed. 2d 647, 2017 U.S. LEXIS 2222 (U.S. 2017).

In a capital murder case, the trial court’s refusal to grant defendant’s motion for funds to obtain mental health expert’s assistance to determine if he was exempt from execution under the Eighth Amendment because of his mental retardation was properly denied and did not constitute a violation of his due process rights because defendant did not show a substantial need for an independent expert because: (1) based on his intelligence quotient tests, one doctor already determined that defendant was mentally retarded; and (2) a second doctor stated in her affidavit that she thought defendant was mentally retarded, and that further testing and a complete social history was necessary to accurately ascertain whether defendant was in fact mentally retarded. King v. State, 960 So. 2d 413, 2007 Miss. LEXIS 317 (Miss. 2007), cert. denied, 552 U.S. 1190, 128 S. Ct. 1223, 170 L. Ed. 2d 77, 2008 U.S. LEXIS 1244 (U.S. 2008).

Execution of mentally retarded inmates constituted cruel and unusual punishment in violation of the Eighth Amendment; the trial court did not err in finding that defendant was not mentally retarded because: (1) although two doctor’s opined that defendant was mentally retarded based on his intelligence quotient tests, a second doctor testified that he found defendant to be below average intelligence but not mentally retarded; (2) a doctor who opined that defendant was mentally retarded was asked if a person who was mentally retarded could write documents that an officer stated that defendant wrote and he stated that it would be highly unlikely; (3) the officer saw defendant create the documents in his room without assistance, saw him use the law library on several occasions, and noticed that he had legal books in his cell; and (4) a psychiatrist at the Mississippi department of corrections stated that her diagnostic impression was that mental retardation could be ruled out. King v. State, 960 So. 2d 413, 2007 Miss. LEXIS 317 (Miss. 2007), cert. denied, 552 U.S. 1190, 128 S. Ct. 1223, 170 L. Ed. 2d 77, 2008 U.S. LEXIS 1244 (U.S. 2008).

Petitioner was entitled to a postconviction hearing on whether he was mentally retarded, and therefore not competent to be executed based on the Eighth Amendment; petitioner’s intelligence quotient fell within the mildly retarded range, and further testing was required. Lynch v. State, 951 So. 2d 549, 2007 Miss. LEXIS 34 (Miss. 2007).

Supreme Court properly granted the inmate’s application for leave to file petition for postconviction relief in part because the inmate was entitled constitutionally to present his possible mental retardation to the trial court. Carr v. State, 873 So. 2d 991, 2004 Miss. LEXIS 544 (Miss. 2004).

11. Injury to inmate.

Summary judgment for jail supervisor on prisoner’s claim of deliberate indifference to serious medical need was precluded by genuine issues of material fact on whether jail supervisor acted reasonably in not calling paramedics or taking prisoner to emergency room immediately upon learning that he had suffered eye injury three hours earlier and in not following up on his own orders, thereby allowing prisoner to go without proper medical treatment for at least another three hours. Davis v. City of Greenville, 974 F. Supp. 884, 1997 U.S. Dist. LEXIS 13969 (N.D. Miss. 1997).

In asserting Eighth Amendment claim against municipality or county for injury to inmate, it is important to distinguish between the “state of mind” required to establish a violation of a constitutional right and the culpability standard required to impose 42 U.S.C.S. § 1983 liability upon a municipality or county; while the governmental entity may only need be shown to be objectively deliberately indifferent to the known or obvious consequences of a custom or policy which does not itself violate federal law, it cannot be held liable unless the plaintiff shows that a constitutional violation has in fact occurred, which requires that a prison official must know that inmates face a substantial risk of serious harm and disregard that risk by failing to take reasonable measures to abate it. Earrey v. Chickasaw County, 965 F. Supp. 870, 1997 U.S. Dist. LEXIS 10990 (N.D. Miss. 1997).

In civil rights action against county under the Eighth Amendment arising from beating of detained parolee by other inmates at county jail, there were genuine issues of material fact, precluding summary judgment, as to existence of subjective knowledge of risk on part of jailer and sheriff, as well as actual or imputed knowledge of county itself. Earrey v. Chickasaw County, 965 F. Supp. 870, 1997 U.S. Dist. LEXIS 10990 (N.D. Miss. 1997).

In instances where inmate’s “failure to protect” claim arises out of an episodic act or omission on the part of a jail official, the appropriate standard to be applied is identical regardless of the inmate’s custodial status as pretrial detainee or convicted inmate, requiring demonstration of subjective knowledge of a substantial risk of serious harm and the failure to take reasonable measures to abate it, but where a pretrial detainee challenges a general condition of confinement, the court presumes intent on the part of prison officials and looks to whether the challenged condition of confinement is reasonably related to a legitimate governmental objective. Earrey v. Chickasaw County, 965 F. Supp. 870, 1997 U.S. Dist. LEXIS 10990 (N.D. Miss. 1997).

An underlying principle of the Eighth Amendment’s prohibition against cruel and unusual punishment is that it only prohibits unnecessary and wanton inflictions of pain; consequently, Eighth Amendment liability only attaches when a responsible official has a sufficiently culpable state of mind: knowing that inmates face a substantial risk of serious harm and disregarding that risk by failing to take reasonable measures to abate it. Earrey v. Chickasaw County, 965 F. Supp. 870, 1997 U.S. Dist. LEXIS 10990 (N.D. Miss. 1997).

A complaint that a physician has been negligent in diagnosing or treating a prisoner’s medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend “evolving standards of decency” in violation of the Eighth Amendment. McFadden v. State, 542 So. 2d 871, 1989 Miss. LEXIS 65 (Miss. 1989).

12. Pleadings.

In order to state a cognizable Eighth Amendment claim against prison officials, a prisoner must allege causative acts or omissions demonstrating “subjective recklessness” by the defendants. Bilbo v. Thigpen, 647 So. 2d 678, 1994 Miss. LEXIS 598 (Miss. 1994).

13. Capital sentencing procedures – In general.

Defendant was entitled to a hearing on whether he was mentally retarded as he had presented expert testimony that he was in the borderline mentally retarded range and that he qualified, in terms of intellectual impairment, for a diagnosis of mental retardation. Doss v. State, 882 So. 2d 176, 2004 Miss. LEXIS 847 (Miss. 2004), cert. denied, 544 U.S. 1062, 125 S. Ct. 2513, 161 L. Ed. 2d 1113, 2005 U.S. LEXIS 4399 (U.S. 2005).

Petitioner’s argument that the sentence imposed was disproportionate to the sentences imposed on similarly situated defendants within the same circuit court district was rejected where petitioner’s sentence for manslaughter was within the applicable statutory guidelines; the fact that other criminal defendants in the same county circuit court who pled guilty to manslaughter received shorter sentences than petitioner had no decisive bearing on whether or not petitioner’s sentence was disproportionate. Jones v. State, 885 So. 2d 83, 2004 Miss. App. LEXIS 487 (Miss. Ct. App.), cert. denied, 883 So. 2d 1180, 2004 Miss. LEXIS 1334 (Miss. 2004).

In a capital murder case where defendant was indicted separately for each of four murders, submission of the “great risk of death to many persons” aggravator did not violate defendant’s Eighth Amendment rights, as evidence regarding the other three killings was relevant in the case at bar during sentencing. Flowers v. State, 842 So. 2d 531, 2003 Miss. LEXIS 149 (Miss. 2003).

A capital defendant is not entitled to a sympathy instruction because, like a mercy instruction, it results in a verdict based on “whim and caprice.” Turner v. State, 732 So. 2d 937, 1999 Miss. LEXIS 61 (Miss.), cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319, 1999 U.S. LEXIS 7156 (U.S. 1999).

Capital sentencing scheme in which prosecutor has discretion as to which murders he can try as capital offenses did not grant unfettered discretion to prosecutor and did not violate constitutional protections, where discretion was statutorily limited, manslaughter instruction had to be given if warranted by facts, and imposition of death penalty was channelled through weighing of aggravating and mitigating circumstances. Berry v. State, 703 So. 2d 269, 1997 Miss. LEXIS 639 (Miss. 1997).

Admission of evidence in habitual offender capital murder case that defendant’s habitual offender status makes him ineligible for parole is founded upon theory that Eighth and Fourteenth Amendments require that sentencer not be precluded from considering, as mitigating factors, aspects of defendant’s character or record proffered as a basis for sentence less than death. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Trial court did not abuse its discretion in capital murder case in allowing into evidence photographs depicting victim’s gunshot wounds; photographs served to clarify and supplement coroner’s testimony and described cause of victim’s death. Holly v. State, 671 So. 2d 32, 1996 Miss. LEXIS 15 (Miss.), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4179 (U.S. 1996).

14. – Aggravating and mitigating circumstances, capital sentencing procedures.

With respect to a charge of capital murder committed during the course of a robbery, the use of the underlying felony as an aggravating sentencing factor did not constitute impermissible double prejudice. Thong Le v. State, 967 So. 2d 627, 2007 Miss. LEXIS 452 (Miss. 2007), cert. denied, 552 U.S. 1300, 128 S. Ct. 1747, 170 L. Ed. 2d 547, 2008 U.S. LEXIS 2913 (U.S. 2008).

In a resentencing trial in a capital murder case, under the Eighth Amendment defendant was permitted to introduce mitigating evidence; however, he was not permitted to introduce evidence that he was not the victim’s killer because that issue was procedurally barred from further consideration under the doctrine of res judicata. King v. State, 960 So. 2d 413, 2007 Miss. LEXIS 317 (Miss. 2007), cert. denied, 552 U.S. 1190, 128 S. Ct. 1223, 170 L. Ed. 2d 77, 2008 U.S. LEXIS 1244 (U.S. 2008).

In a capital murder case, the trial court did not err in granting the state’s in limine motion to prevent defendant’s family from testifying to the impact a death sentence would have on the family; such evidence did not qualify as “relevant mitigating evidence” because it did not address defendant’s character, record, or the circumstances of the offense. Ross v. State, 954 So. 2d 968, 2007 Miss. LEXIS 235 (Miss. 2007).

In defendant’s capital murder case, a court did not err in instructing the jury that it could not consider sympathy where the language used by the trial court to instruct the jury was well recognized as within the acceptable parameters designated in prior cited case law and the jury also had a catch-all instruction in which it could consider any other matter. Scott v. State, 878 So. 2d 933, 2004 Miss. LEXIS 650 (Miss. 2004).

Proof in the record did not support a prisoner’s claim of being mentally retarded as requiring remand to the trial court for an Atkins hearing where the prisoner only supported his claim with copies of school records and affidavits of family members. Bishop v. State, 882 So. 2d 135, 2004 Miss. LEXIS 773 (Miss. 2004), cert. denied, 543 U.S. 1189, 125 S. Ct. 1401, 161 L. Ed. 2d 194, 2005 U.S. LEXIS 2123 (U.S. 2005).

Given case law, the court could not constitutionally deny an inmate the opportunity to present the issue of the inmate’s possible mental retardation to the trial court in connection with the inmate’s death sentence for capital murder. Smith v. State, 877 So. 2d 369, 2004 Miss. LEXIS 547 (Miss. 2004).

With one exception, no defendant may be granted a hearing on the issue of Eighth Amendment protection from execution due to alleged mental retardation unless, prior to the expiration of the deadline set by the trial court for filing motions, the defendant shall have filed with the trial court a motion, seeking such a hearing, and the defendant must attach to the motion an affidavit from at least one expert who opines, to a reasonable degree of certainty, that: (1) the defendant has a combined Intelligence Quotient (IQ) of 75 or below, and (2) in the opinion of the expert, there is a reasonable basis to believe that, upon further testing, the defendant will be found to be mentally retarded, and defendants with an IQ of 76 or above do not qualify for Eighth Amendment protection; the court further holds that, for defendants whose trials were held prior to publication of this opinion, the affidavit as described above shall be attached to the defendant’s application for postconviction relief, and such application shall then be considered pursuant to the provisions of Miss. Code Ann. §99-39-1 et seq. Chase v. State, 873 So. 2d 1013, 2004 Miss. LEXIS 548 (Miss. 2004).

Although the court was not without the authority to decide the merits of an inmate’s application pursuant to Miss. Code Ann. §99-39-27(7), the court found that due process required the court to allow the inmate’s motion to be filed in the trial court for the consideration of mental retardation evidence as a defense to the death penalty as cruel and unusual punishment under U.S. Const. amend. VIII. Chase v. State, 873 So. 2d 1013, 2004 Miss. LEXIS 548 (Miss. 2004).

No defendant may be adjudged mentally retarded unless such defendant produces an expert who expresses an opinion that defendant is mentally retarded and defendant has completed certain tests, after which defendant may present other evidence, after which the State may offer evidence, after which the trial court must determine if defendant is mentally retarded. Chase v. State, 873 So. 2d 1013, 2004 Miss. LEXIS 548 (Miss. 2004).

The absence of mental retardation is not an aggravating factor necessary for imposition of the death penalty, and the Ring standard, which requires a finding of aggravating circumstances for imposition of the death penalty by a jury, has no application to an Atkins v. Virginia determination, prohibiting the execution of mentally retarded offenders. Russell v. State, 849 So. 2d 95, 2003 Miss. LEXIS 297 (Miss. 2003).

In determining whether a state court’s application of its constitutionally adequate aggravating factor was so erroneous as to raise an independent due process or Eighth Amendment violation for habeas corpus purposes, even though it is issue of law, habeas corpus court must afford a presumption of correctness to any factual findings made by state court in its determination of whether the facts were sufficient to support the challenged aggravating circumstance; however, habeas court is not necessarily bound by such factual findings. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

Defendant was entitled to habeas relief on issue of state court’s application of especially heinous, atrocious, or cruel aggravating circumstance, and to vacated death sentence with new sentencing hearing, where state Supreme Court failed to make any factual findings concerning the death of murder victim and failed to set forth any facts on which to base such an opinion; given lack of any factual basis to support court’s conclusion, no reasonable factfinder could conclude that the crime was conscienceless or pitiless and unnecessarily torturous where victim was shot immediately with little or no warning upon opening front door to defendant. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

Jury executed process for narrowing class of persons eligible for death penalty by finding that defendant intended to kill and actually killed victim while contemplating that lethal force would be used in her murder, and, thus, felony murder aggravating circumstance was not constitutionally infirm and penalty was not disproportionate to crime. Berry v. State, 703 So. 2d 269, 1997 Miss. LEXIS 639 (Miss. 1997).

In order to uphold mentally retarded defendant’s Eighth Amendment protection against cruel and unusual punishment, jury must be provided vehicle with which to consider and give effect to mitigating evidence of defendant’s mental retardation in rendering its sentence. Wells v. State, 698 So. 2d 497, 1997 Miss. LEXIS 258 (Miss. 1997), cert. denied, 522 U.S. 1122, 118 S. Ct. 1065, 140 L. Ed. 2d 125, 1998 U.S. LEXIS 1059 (U.S. 1998).

Felony-murder aggravator is not disproportionate within meaning of Eighth Amendment, although unintentional felony murder is punishable by death, while premeditated murder, standing alone, is not; not every defendant eligible for death penalty will have committed murder while in course of robbery or kidnapping or other statutorily enumerated felonies, and thus, felony-murder aggravator genuinely narrows class of defendants eligible for death penalty. Wilcher v. State, 697 So. 2d 1123, 1997 Miss. LEXIS 101 (Miss. 1997).

Use of underlying felony as aggravating circumstance supporting death penalty does not violate Eighth Amendment on theory that it does not genuinely narrow class of death-eligible defendants. Wilcher v. State, 697 So. 2d 1087, 1997 Miss. LEXIS 100 (Miss. 1997), cert. denied, 522 U.S. 1053, 118 S. Ct. 705, 139 L. Ed. 2d 647, 1998 U.S. LEXIS 149 (U.S. 1998).

Claim that use of underlying felony as aggravating circumstance violates Eighth Amendment was procedurally barred where defendant did not raise issue at trial. Wilcher v. State, 697 So. 2d 1087, 1997 Miss. LEXIS 100 (Miss. 1997), cert. denied, 522 U.S. 1053, 118 S. Ct. 705, 139 L. Ed. 2d 647, 1998 U.S. LEXIS 149 (U.S. 1998).

Aggravating factor of murder committed during course of robbery is constitutional. Wilcher v. State, 697 So. 2d 1087, 1997 Miss. LEXIS 100 (Miss. 1997), cert. denied, 522 U.S. 1053, 118 S. Ct. 705, 139 L. Ed. 2d 647, 1998 U.S. LEXIS 149 (U.S. 1998).

The “specially heinous” aggravator does not violate Eighth Amendment. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Considering underlying crime of felonious abuse as aggravating factor during sentencing of capital murder defendant did not fail to narrow class of defendants eligible for death penalty, in violation of Eighth Amendment; fact that aggravating circumstance duplicates element of crime does not make death sentence constitutionally infirm. Jackson v. State, 672 So. 2d 468, 1996 Miss. LEXIS 718 (Miss. 1996).

Submission of “robbery” aggravating circumstance during penalty phase of capital murder case did not violate constitutional prohibition against cruel and unusual punishment, although defendant was charged with murder while in commission of armed robbery. Holly v. State, 671 So. 2d 32, 1996 Miss. LEXIS 15 (Miss.), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4179 (U.S. 1996).

“Avoiding arrest” aggravating factor was properly submitted to jury in penalty phase of capital murder case, even though defendant claimed that arrest avoidance was inherent in every murder, as it by definition eliminated one of the possible witnesses and that further limiting instruction was required to channel jury’s focus on situations in which there is specific evidence demonstrating that one of the purposes beyond the killing was desire to avoid detection and apprehension for underlying crime. Walker v. State, 671 So. 2d 581, 1995 Miss. LEXIS 494 (Miss. 1995), cert. denied, 519 U.S. 1011, 117 S. Ct. 518, 136 L. Ed. 2d 406, 1996 U.S. LEXIS 7236 (U.S. 1996).

Sexual battery could be used as underlying felony, to elevate murder to level of capital murder, and could be used again for sentencing purposes as an aggravator to support imposition of death penalty, without violating prohibition against cruel and unusual punishment. Walker v. State, 671 So. 2d 581, 1995 Miss. LEXIS 494 (Miss. 1995), cert. denied, 519 U.S. 1011, 117 S. Ct. 518, 136 L. Ed. 2d 406, 1996 U.S. LEXIS 7236 (U.S. 1996).

Use of robbery as both aggravating factor in sentencing and as essential element of crime of capital murder did not unconstitutionally fail to narrow class of death eligible offenders; required narrowing had been done legislatively. Ballenger v. State, 667 So. 2d 1242, 1995 Miss. LEXIS 451 (Miss. 1995), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4177 (U.S. 1996).

In the sentencing phase of a capital robbery/murder prosecution, convictions for armed robberies committed by the defendant after the robbery/murder were admissible as aggravating circumstances. Turner v. State, 573 So. 2d 657, 1990 Miss. LEXIS 792 (Miss. 1990), cert. denied, 500 U.S. 910, 111 S. Ct. 1695, 114 L. Ed. 2d 89, 1991 U.S. LEXIS 2522 (U.S. 1991).

The Eighth and Fourteenth Amendments require that the sentencer not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character, record, or any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. West v. State, 519 So. 2d 418, 1988 Miss. LEXIS 17 (Miss. 1988).

New sentencing hearing was required where trial court had excluded relevant mitigating evidence about method for generating electricity from alternative energy source, defendant had been in contact with Tennessee Valley Authority over this invention, had entered into agreement with them about it, and witness was familiar with all details and would testify about them. Jordan v. State, 518 So. 2d 1186, 1987 Miss. LEXIS 2799 (Miss. 1987), cert. denied, 488 U.S. 818, 109 S. Ct. 57, 102 L. Ed. 2d 35, 1988 U.S. LEXIS 3832 (U.S. 1988).

Premising death penalty upon aggravating circumstance that duplicates element of crime does not violate Eighth Amendment. Stringer v. Scroggy, 675 F. Supp. 356, 1987 U.S. Dist. LEXIS 11203 (S.D. Miss. 1987), aff'd, 862 F.2d 1108, 1988 U.S. App. LEXIS 17949 (5th Cir. Miss. 1988).

15. – Juror qualification, capital sentencing procedures.

Although record in capital murder case indicated that veniremember who was excused for cause stated during voir dire that he could impose death penalty if circumstances warranted, and that another veniremember with similar name, who was not excused, indicated he could not impose death penalty under any circumstances, trial court did not err, where defense counsel’s failure to differentiate between the 2 veniremembers during questioning and parties’ subsequent arguments led to conclusion that court reporter mistakenly transposed veniremembers’ names. Russell v. State, 670 So. 2d 816, 1995 Miss. LEXIS 617 (Miss. 1995), cert. denied, 519 U.S. 982, 117 S. Ct. 436, 136 L. Ed. 2d 333, 1996 U.S. LEXIS 6884 (U.S. 1996), cert. dismissed, 520 U.S. 1249, 117 S. Ct. 2406, 137 L. Ed. 2d 1064, 1997 U.S. LEXIS 3537 (U.S. 1997).

Even if veniremember who gave conflicting statements as to whether he could impose death penalty was erroneously stricken for cause in capital murder case, defendant’s right to impartial jury was not violated, where, because veniremember was panel member number 35, defense would have had to use all 12 peremptory challenges and prosecution would have had to use at least 11 of its peremptory challenges to enable veniremember to serve on jury, and defendant did not claim that any of the 12 jurors who did serve were not impartial. Russell v. State, 670 So. 2d 816, 1995 Miss. LEXIS 617 (Miss. 1995), cert. denied, 519 U.S. 982, 117 S. Ct. 436, 136 L. Ed. 2d 333, 1996 U.S. LEXIS 6884 (U.S. 1996), cert. dismissed, 520 U.S. 1249, 117 S. Ct. 2406, 137 L. Ed. 2d 1064, 1997 U.S. LEXIS 3537 (U.S. 1997).

Juror was properly challenged for cause where he stated that he did not believe in death penalty and could not put aside strong, moral and religious beliefs about death penalty and follow instructions given by court. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Jurors were correctly excused where they stated they could not under any conditions impose death penalty regardless of what evidence showed, despite contention that the word “automatically” was not used by trial judge in voir dire and that failure to do so constituted error. Jones v. State, 517 So. 2d 1295, 1987 Miss. LEXIS 2296 (Miss. 1987), vacated, 487 U.S. 1230, 108 S. Ct. 2891, 101 L. Ed. 2d 925, 1988 U.S. LEXIS 3048 (U.S. 1988), overruled, Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

The issue of whether a capital murder conviction should be reversed because the prosecutor improperly used all of his peremptory challenges to exclude all blacks from the jury was not preserved for review, where the record did not reflect the race of the jurors who had been peremptorily challenged by the prosecutor. Booker v. State, 449 So. 2d 209, 1984 Miss. LEXIS 1682 (Miss.), cert. denied, 469 U.S. 873, 105 S. Ct. 230, 83 L. Ed. 2d 159, 1984 U.S. LEXIS 368 (U.S. 1984).

16. – Arguments of counsel, capital sentencing procedures.

In a case in which defendant appealed his sentence of death by lethal injection for violating Miss. Code Ann. §97-3-19(2)(f), he argued unsuccessfully that when the prosecutor asked the victim’s grandfather what he believed defendant’s punishment should be, that action violated his rights under the Sixth, Eighth, and Fourteenth Amendments of the U.S. Constitution and under Article 3, Sections 14, 25, and 28 of the Mississippi Constitution. It was highly unlikely that the grandfather’s statement, when read as a whole and taken in context with all the evidence before the sentencing judge, was the reason the judge imposed the death penalty; in fact, the trial judge’s sentencing order, in which he made findings of facts as to the various aggravating and mitigating factors, did not even mention the grandfather’s testimony. Wilson v. State, 21 So.3d 572, 2009 Miss. LEXIS 450 (Miss. 2009), cert. denied, 560 U.S. 909, 130 S. Ct. 3282, 176 L. Ed. 2d 1191, 2010 U.S. LEXIS 3966 (U.S. 2010).

For district court to grant habeas relief based upon remarks by the prosecutor, district court must find more than that prosecutor’s comments were undesirable or even universally condemned, and relevant question is whether the prosecutors’ comments so infected the trial with unfairness as to make the resulting conviction a denial of due process, and in the context of a death penalty case, the comments must have been such as to render the sentencing fundamentally unfair. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

Eighth Amendment does not bar victim impact evidence in prosecutorial argument during penalty phase of capital murder trial. Wells v. State, 698 So. 2d 497, 1997 Miss. LEXIS 258 (Miss. 1997), cert. denied, 522 U.S. 1122, 118 S. Ct. 1065, 140 L. Ed. 2d 125, 1998 U.S. LEXIS 1059 (U.S. 1998).

Trial court did not unconstitutionally limit closing argument at guilt phase of capital murder case by denying defendant full 5 minutes of additional time requested after original 60 minutes had expired; 60-minute period had been requested by defendant’s counsel, and after 5 minute extension request was refused counsel was allowed to place remaining 4 minutes into record, and case was not so complex as to require more time. Walker v. State, 671 So. 2d 581, 1995 Miss. LEXIS 494 (Miss. 1995), cert. denied, 519 U.S. 1011, 117 S. Ct. 518, 136 L. Ed. 2d 406, 1996 U.S. LEXIS 7236 (U.S. 1996).

In the sentencing phase of a capital murder prosecution, the prosecutor’s comments during closing argument portraying the victim as a “grandmother” who left home “wearing her mother’s day present ring on her finger,” and asking the jury not to forget the victim “because she deserves justice” did not constitute an impermissible argument to sentence the defendant to death out of vengeance and sympathy for the victim; the introduction of evidence concerning the background and character of the victim and the impact of the crime on the victim’s family is not prohibited, as such evidence may be relevant to the jury’s decision as to whether the death penalty should be imposed. Conner v. State, 632 So. 2d 1239, 1993 Miss. LEXIS 541 (Miss. 1993), cert. denied, 513 U.S. 927, 115 S. Ct. 314, 130 L. Ed. 2d 276, 1994 U.S. LEXIS 7088 (U.S. 1994), overruled, Weatherspoon v. State, 732 So. 2d 158, 1999 Miss. LEXIS 4 (Miss. 1999).

In the sentencing phase of a capital case, the defense counsel’s single objection which was directed at the prosecutor’s argument regarding the possibility of parole but did not specifically address the prosecutor’s mention of appellate review, properly preserved both errors where the argument regarding appellate review and the possibility of parole were interwoven. The Eighth Amendment required that the Supreme Court consider the prosecutor’s argument concerning appellate review on the merits. Williams v. State, 544 So. 2d 782, 1987 Miss. LEXIS 2843 (Miss. 1987).

17. – Instructions, capital sentencing procedures.

There was no violation of the Eighth Amendment to the United States Constitution when the trial court instructed the jury that the procedure it was to follow was not a mere counting process of a certain number of aggravating circumstances versus the number of mitigating circumstances, but that it was required to apply reasoned judgment as to whether the situation called for life imprisonment without parole, life imprisonment, or whether it required the imposition of death, in light of the totality of the circumstances present; such instruction did not permit the jury to substitute its own judgment in place of the statutory scheme or to ignore the elements of aggravation and mitigation or to set them aside in favor of their own subjective feelings about the proper sentence. Goodin v. State, 787 So. 2d 639, 2001 Miss. LEXIS 135 (Miss. 2001), cert. denied, 535 U.S. 996, 122 S. Ct. 1558, 152 L. Ed. 2d 481, 2002 U.S. LEXIS 2500 (U.S. 2002).

Instruction given in capital murder trials contained proper limiting definition of the especially heinous, atrocious or cruel aggravating factor; court defined especially heinous, atrocious or cruel as a conscienceless or pitiless crime which is unnecessarily torturous to the victim, and state Supreme Court determined that such language properly channeled jury’s discretion during sentencing phase. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

Instructing jury that defendant could be sentenced to life in prison precluded claim that overlapping statutes for felonious child abuse and manslaughter, one which permitted death penalty and another that did not, gave prosecutors and juries unfettered discretion to impose the death penalty, in violation of Eighth Amendment rights. Jackson v. State, 672 So. 2d 468, 1996 Miss. LEXIS 718 (Miss. 1996).

Trial court did not violate Eighth Amendment rights of capital murder defendant by refusing to give sentencing phase instruction that court was obligated to consider mitigating factors which in fairness, sympathy and mercy to defendant extenuate or reduce degree of blame or punishment. Walker v. State, 671 So. 2d 581, 1995 Miss. LEXIS 494 (Miss. 1995), cert. denied, 519 U.S. 1011, 117 S. Ct. 518, 136 L. Ed. 2d 406, 1996 U.S. LEXIS 7236 (U.S. 1996).

Mistrial was not required in capital murder case after victim’s grandmother “became emotional” when asked to look at pictures identifying victim during guilt phase; defendant had not made contemporary objection, thus precluding court from giving curative instruction which jury would have presumably followed, and as incident occurred after defendant had been officially found guilty he could not be heard to complain about an emotional state which he had brought on through his own actions. Walker v. State, 671 So. 2d 581, 1995 Miss. LEXIS 494 (Miss. 1995), cert. denied, 519 U.S. 1011, 117 S. Ct. 518, 136 L. Ed. 2d 406, 1996 U.S. LEXIS 7236 (U.S. 1996).

Submission to jury of “especially heinous, atrocious or cruel” aggravating factor in capital murder prosecution without limiting instruction violated Eighth Amendment. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

In the sentencing phase of a capital murder prosecution, the trial court did not err in refusing to give peremptory instructions requiring the jury to find 5 mitigating factors which the defendant claimed were undisputed, since the existence of mitigating factors should be left to the jury’s consideration; while it is constitutionally required that a jury not be precluded from considering any mitigating factor, a jury is not required to find such factors. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

A sentencing instruction in a capital murder prosecution properly defined the “especially heinous, atrocious, or cruel” aggravating factor, and thus there was no violation of the Eighth Amendment to the United States Constitution, where the instruction defined the term “heinous, atrocious, or cruel” as “those situations where the actual commission of the capital felony was accomplished by such additional acts to set the crime apart from the norm of capital felonies by the consciencelessness or pitilessness of the crime which is unnecessarily tortuous to the victim.” Hansen v. State, 649 So. 2d 1256, 1994 Miss. LEXIS 496 (Miss. 1994), cert. denied, 516 U.S. 986, 116 S. Ct. 513, 133 L. Ed. 2d 422, 1995 U.S. LEXIS 7828 (U.S. 1995).

In the sentencing phase of a capital murder prosecution, the definition of the “especially heinous, atrocious, or cruel” aggravating factor contained in the limiting instruction was constitutionally adequate where the instruction described an especially heinous, atrocious or cruel capital offense as a “conscienceless or pitiless crime which is unnecessarily torturous to the victim” and which can be shown by the fact that the defendant “utilized a method of killing which caused serious mutilation where there is a dismemberment of the corpse, where the defendant inflicted physical or mental pain before death, where there was mental torture and aggravation before death or where a lingering or torturous death was suffered by the victim.” Conner v. State, 632 So. 2d 1239, 1993 Miss. LEXIS 541 (Miss. 1993), cert. denied, 513 U.S. 927, 115 S. Ct. 314, 130 L. Ed. 2d 276, 1994 U.S. LEXIS 7088 (U.S. 1994), overruled, Weatherspoon v. State, 732 So. 2d 158, 1999 Miss. LEXIS 4 (Miss. 1999).

In the sentencing phase of a capital murder prosecution, a jury instruction which provided a step-by-step guide in arriving at a verdict did not impermissibly limit the consideration of mitigating evidence, in spite of the defendant’s argument that the language of the instruction could have misled the jury to believe that a finding of mitigating circumstances must be unanimous because “everything else” required a unanimous finding, where the mitigating circumstances portion of the instruction did not contain the word “unanimous” or “unanimously,” and the instruction would not have implied to any reasonably literate juror that he or she should await unanimity before considering a mitigating circumstance. Conner v. State, 632 So. 2d 1239, 1993 Miss. LEXIS 541 (Miss. 1993), cert. denied, 513 U.S. 927, 115 S. Ct. 314, 130 L. Ed. 2d 276, 1994 U.S. LEXIS 7088 (U.S. 1994), overruled, Weatherspoon v. State, 732 So. 2d 158, 1999 Miss. LEXIS 4 (Miss. 1999).

The imposition of the death penalty against a mentally retarded defendant with the functional equivalent of a 7-year-old did not violate the cruel and unusual punishment clause of the Eighth Amendment, where the jury was instructed as to the mitigating factors enumerated in §§99-19-101(6)(b), (f) and (g) and these 3 mitigating factors were argued to the jury, so that the jury was provided a vehicle, through appropriate jury instructions and argument, to consider and give effect to the mitigating evidence of the defendant’s mental retardation in rendering its sentencing decision. Jones v. State, 602 So. 2d 1170, 1992 Miss. LEXIS 345 (Miss. 1992).

Instructions at penalty phase of trial did not deprive defendant of his constitutional rights by failing adequately to inform jury of their option to recommend life sentence, where court clearly instructed jury that it should weigh mitigating circumstances against aggravating circumstances and if former outweighed latter, then it should return sentence of life imprisonment. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

A jury instruction at the sentence phase of a murder prosecution that it should consider as an aggravating circumstance that the capital offense was committed for pecuniary gain and while the defendant was engaged in the commission of robbery did not violate defendant’s Eighth Amendment rights, since the evidence supported both “robbery” and “pecuniary gain” instructions as aggravating circumstances in that the robbery was committed for pecuniary gain during the course of which the homicide occurred. In re Hill, 460 So. 2d 792, 1984 Miss. LEXIS 2003 (Miss. 1984).

Contention of defendant that trial court’s failure to instruct jury on intent and that mitigating circumstances need not be proven beyond reasonable doubt violated his rights as secured by Eighth and Fourteenth Amendments was rejected; mitigating circumstances instruction would not have affected outcome, in light of absence of closing argument on mitigating circumstances; refusal of intent instruction, which traced language of Enmund v Florida(1982) 458 US 782, 73 L Ed 2d 1140, 102 S Ct 3368, on remand (Fla) 439 So 2d 1383, later app (Fla App D2) 459 So 2d 1160, 9 FLW 2506, quashed, ctfd ques ans (Fla) 476 So 2d 165, 10 FLW 441 and (diverged from Tison v Arizona (US) 95 L Ed 2d 127, 107 5 Ct 1676 as stated in Smith v Dugger (CAll Fla) 840 F.2d 787, was not raised on direct appeal and was therefore procedurally barred. Even if it were not procedurally barred, there is no requirement that jury find existence of intent factors; in Cabana v Bullock (1986) 474 US 376, 88 L Ed 2d 704, 106 S Ct 689, on remand (CA5 Miss) 784 F.2d 187 and (diverged from, on other grounds Rose v Clark, 478 US 570, 92 L Ed 2d 460, 106 S Ct 3101 (disagreed with by multiple cases as stated in State v Seward (La) 509 So 2d 413) and on remand (CA6) 822 F.2d 596 and (not followed Re Mercer, 108 Wash 2d 714, 741 P2d 559 as stated in Pope v Illinois (US) 95 L Ed 2d 439, 107 S Ct 1918, 14 Media L R 1001, later proceeding (2d Dist) 162 Ill App 3d 299, 113 Ill Dec 547, 515 NE2d 356, app den (Ill) 117 Ill Dec 229, 520 NE2d 390 and not followed State v Kam (Hawaii) 748 P2d 372 and not followed People v Lee, 43 Cal 3d 666, 238 Cal Rptr 406, 738 P2d 752. The United States Supreme Court stated that intent findings could be made by jury, trial judge, or Appellate Court, and Mississippi Supreme Court had made equivalent of required findings in its opinion on direct appeal. Stringer v. Scroggy, 675 F. Supp. 356, 1987 U.S. Dist. LEXIS 11203 (S.D. Miss. 1987), aff'd, 862 F.2d 1108, 1988 U.S. App. LEXIS 17949 (5th Cir. Miss. 1988).

A capital murder defendant’s sentence of death would not be set aside for failure to grant a proper limiting instruction regarding the “especially heinous, atrocious and cruel” aggravating factor as required by the Eighth and Fourteenth Amendments to the United States Constitution where the jury was given an instruction defining the “especially heinous” aggravating factor which tracked the language in Coleman v State (1979, Miss) 378 So 2d 640 (criticized by Cantrell v State (Miss) 507 So 2d 325 as stated in Jenkins v Forrest County General Hospital (Miss) 538 So 2d 1162, corrected, reh den (Miss) 542 So 2d 1180, reh den (Miss) 1989 Miss LEXIS 283, and therefore the jury was properly instructed on the “especially heinous” aggravating factor. Lockett v. State, 614 So. 2d 888, 1992 Miss. LEXIS 609 (Miss. 1992), cert. denied, 510 U.S. 1040, 114 S. Ct. 681, 126 L. Ed. 2d 649, 1994 U.S. LEXIS 59 (U.S. 1994).

18. Cruel and unusual punishment – In general.

Defendant’s contention that the sentence was disproportionate to the offenses which defendant committed and that it amounted to unconstitutionally cruel and unusual punishment was without merit because the sentences were within the statutory limits, and defendant did not make a serious effort to substantiate a disproportionality claim based on the controlling law. Ferrell v. State, 158 So.3d 1204, 2015 Miss. App. LEXIS 65 (Miss. Ct. App. 2015).

Defendant’s life sentence for possession of cocaine and possession of marijuana was not cruel and unusual punishment because he met the requirements of the habitual offender statute under Miss. Code Ann. §99-19-83 in that he was also convicted of two separate prior felonies, one of which was a violent crime, and he served more than a year for each. Furthermore, U.S. Const. Amend. VIII did not contain a proportionality guarantee. Jenkins v. State, 997 So. 2d 207, 2008 Miss. App. LEXIS 460 (Miss. Ct. App. 2008).

Defendant’s sentence for 15 years after pleading guilty to manslaughter under Miss Code Ann. §97-3-47 was not cruel and unusual punishment and did not violate U.S. Const. Amend. VIII because Miss. Code Ann. §97-3-25 provided that the sentencing range was two to 20 years. Henderson v. State, 929 So. 2d 391, 2006 Miss. App. LEXIS 384 (Miss. Ct. App. 2006).

Sentence imposed on defendant for the convictions of possession of a controlled substance and possession of precursor chemicals with intent to manufacture a controlled substance was not unduly harsh, given that defendant, not the girlfriend, was the driving force behind the drug activity at the couple’s place of residence. Pipkins v. State, 878 So. 2d 119, 2004 Miss. App. LEXIS 15 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 946 (Miss. 2004).

There was no precedent to support a postconviction petitioner’s contention that his right against cruel and unusual punishment had been violated where he had been kept in maximum confinement on death row under conditions including lock-down and isolation for at least 23 hours of the day and where he had been subjected to numerous execution dates over a 20-year period. Wilcher v. State, 863 So. 2d 719, 2003 Miss. LEXIS 526 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

On appeal, defendant alleged that the trial court’s sentence for his first offense constituted cruel and unusual punishment in violation of the Eighth Amendment, but consideration of first time offender status was not the trial judge’s only consideration in sentencing defendant to the maximum sentence available; defendant’s sentence was not grossly disproportionate to the crime of possession of precursor drugs with knowledge that the drugs would be used to manufacture a controlled substance for which he already had been convicted; thus, the trial judge did not abuse his discretion in sentencing defendant to the maximum penalty available within the statute, Miss. Code Ann. §41-29-313. Burchfield v. State, 2003 Miss. App. LEXIS 660 (Miss. Ct. App. July 22, 2003), op. withdrawn, sub. op., 892 So. 2d 248, 2004 Miss. App. LEXIS 538 (Miss. Ct. App. 2004).

A sentence of twenty years for selling cocaine was not cruel and unusual. Rather, the sentence was well within the statutory maximum of Miss. Code Ann. §41-29-139(b)(1), and a threshold comparison of the crime to the sentence yielded no inference of gross disproportionality. Triplett v. State, 840 So. 2d 727, 2002 Miss. App. LEXIS 871 (Miss. Ct. App. 2002).

The defendant’s sentence of three years’ imprisonment for possession of cocaine did not constitute cruel and unusual punishment, notwithstanding that the defendant was initially placed in the general inmate population in the state penitentiary and remained there for approximately six months until the trial court entered an amended order and he was transferred into a Regimented Inmate Discipline Program. Franklin v. State, 773 So. 2d 970, 2000 Miss. App. LEXIS 511 (Miss. Ct. App. 2000).

5 U.S.C.S. § 8148(a), which concerns disability benefit eligibility, does not implicate the ex post facto clause or violate the Eighth Amendment. Garner v. United States DOL, 221 F.3d 822, 2000 U.S. App. LEXIS 21105 (5th Cir. Miss. 2000), cert. denied, 532 U.S. 906, 121 S. Ct. 1230, 149 L. Ed. 2d 140, 2001 U.S. LEXIS 2025 (U.S. 2001).

In an action challenging the plaintiff’s incarceration for nine months in a Madison County jail as a result of a Hinds County detainer, without hearing or court appearance, the plaintiff failed to establish a violation of his Eighth Amendment rights where he complained about the fact of his incarceration, rather than its conditions. Jones v. City of Jackson, 203 F.3d 875, 2000 U.S. App. LEXIS 1992 (5th Cir. Miss. 2000).

The court rejected the contention that the defendant’s sentence violated the Eighth Amendment prohibiting cruel and unusual punishment because the sentence was grossly disproportionate to others in similar situations; a proportionality analysis was not required based on a threshold comparison of the crime for which the defendant was found guilty to the sentence imposed by the trial court. Desalvo v. State, 776 So. 2d 704, 2000 Miss. App. LEXIS 339 (Miss. Ct. App. 2000).

The defendant’s sentence was not so lengthy that the constitutional protection afforded an individual against cruel and unusual punishment was violated where he was originally indicted for 10 felonies in six separate indictments, one indictment was dismissed, he pleaded guilty to the burglary charges in the other five indictments, and he received a combined sentence of 75 years. Henderson v. State, 769 So. 2d 210, 2000 Miss. App. LEXIS 341 (Miss. Ct. App. 2000).

A sentence of 16 years’ imprisonment for possession of cocaine did not constitute cruel and unusual punishment where the defendant was 36 years old and had two prior felony convictions. Lee v. State, 767 So. 2d 1025, 2000 Miss. App. LEXIS 297 (Miss. Ct. App. 2000).

The sentence imposed on a 14 year old for manslaughter after he shot and killed an older neighborhood bully was not excessive where it was within the statutory limits. Jackson v. State, 740 So. 2d 832, 1999 Miss. LEXIS 176 (Miss. 1999).

Even as to those circumstances for which the statutes provide mandatory sentences, the punishment must be weighed against the prohibition imposed in the Eighth Amendment to the United States Constitution against cruel and unusual punishment. Davis v. State, 724 So. 2d 342, 1998 Miss. LEXIS 585 (Miss. 1998).

Racial protest demonstrators, incarcerated only to assure their presence at trial, with male prisoners required to strip naked and remain in such state for up to 32 hours, who were detained in cells with inadequate hygienic facilities and no bedding, and with female prisoners required to strip to their undergarments and permitted to have no personal belongings including medicine or sanitary napkins, and who were given quantities of laxatives, were subjected to cruel and unusual punishment in violation of the Eighth Amendment. Anderson v. Nosser, 438 F.2d 183, 1971 U.S. App. LEXIS 11905 (5th Cir. Miss. 1971), modified, 456 F.2d 835, 1972 U.S. App. LEXIS 10947 (5th Cir. Miss. 1972).

The imprisonment of an indigent for failure to pay a fine did not constitute cruel and unusual punishment, where the indigent after pleading guilty to a misdemeanor charge was sentenced to a jail term and to pay a fine, and after serving her jail term was unable to pay the fine because she was indigent, in view of Code 1942 § 7899 which limits the time of confinement for failure to pay a fine for any one offense to 2 years. Wade v. Carsley, 221 So. 2d 725, 1969 Miss. LEXIS 1506 (Miss. 1969).

19. – Age of defendant, cruel and unusual punishment.

Where a juvenile convicted of murder receives a life sentence, conditional release does not satisfy the mandate of Miller v. Alabama, 2012 U.S. LEXIS 4873, because conditional release is more akin to clemency, which is different from parole despite some surface similarities, and conditional release would not be determined by the sentencing authority at the time of sentencing based on age and other characteristics, as Miller mandates. Parker v. State, 119 So.3d 987, 2013 Miss. LEXIS 321 (Miss. 2013).

Miss. Code Ann. §47-7-3(1)(h) can constitutionally be applied to juveniles provided that the sentencing authority considers the factors of Miller v. Alabama, 2012 U.S. LEXIS 4873, in imposing the sentence. Parker v. State, 119 So.3d 987, 2013 Miss. LEXIS 321 (Miss. 2013).

As defendant was 15 at the time of the murder and pursuant to Miss. Code Ann §47-7-3(1)(h) was not eligible for parole, and as Miller v. Alabama, 2012 U.S. LEXIS 4873, was decided while his appeal was pending, his life sentence was vacated and the case was remanded so the trial court could consider the Miller factors before determining sentence. Parker v. State, 119 So.3d 987, 2013 Miss. LEXIS 321 (Miss. 2013).

Because the record was clear that defendant was six days past his 18th birthday at the time of the capital murder, he was over the age of 18, and was therefore eligible for the death penalty. Scott v. State, 938 So. 2d 1233, 2006 Miss. LEXIS 534 (Miss. 2006), overruled, Lynch v. State, 951 So. 2d 549, 2007 Miss. LEXIS 34 (Miss. 2007).

Supreme Court of Mississippi vacated the death sentence imposed on a defendant convicted of capital murder. The death sentence violated the Eighth and Fourteenth Amendments to the United States Constitution, because defendant was only 17 years old when he committed the crime. Dycus v. State, 910 So. 2d 1100, 2005 Miss. LEXIS 589 (Miss. 2005).

Defendant, convicted of murder, argued that, because of his young age, under Miss. Code Ann. §47-5-139(1)(a)(1), he was subjected to greater punishment for his crime than others sentenced to life imprisonment at age 50 or older. However, the appellate court rejected his argument that the age distinction in the statute subjected a younger individual to a longer punishment which was cruel and unusual, since his life sentence fell within the statutory limits designated by the Mississippi Legislature. Knox v. State, 912 So. 2d 1004, 2005 Miss. App. LEXIS 207 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 686 (Miss. 2005).

Defendant’s sentence of five years for possession of precursor drugs with knowledge that the drugs would be used to manufacture a controlled substance did not constitute cruel and unusual punishment even though he was only 23 and had never been convicted of a felony, as the sentence was within the statutory range, and there was no gross disproportionality between the crime committed and the sentence imposed Burchfield v. State, 892 So. 2d 248, 2004 Miss. App. LEXIS 538 (Miss. Ct. App.), aff'd, 892 So. 2d 191, 2004 Miss. LEXIS 1346 (Miss. 2004).

The fact that the defendant in a murder prosecution was 62 years of age at the time of the slaying did not make his sentence of life imprisonment violative of the Eighth Amendment. Ratliff v. State (Miss. 1984) 459 So.2d 805. Ratliff v. State, 515 So. 2d 877, 1987 Miss. LEXIS 2874 (Miss. 1987).

A sentence of life imprisonment without eligibility for parole, imposed on a 16-year-old male convicted of armed robbery, was not cruel and unusual punishment where, of the three perpetrators, defendant was the one who actually poked a pistol into the victim’s ribs and threatened her with death, and where he was also the one who actually robbed her at gunpoint of $21. White v. State, 374 So. 2d 225, 1979 Miss. LEXIS 2348 (Miss. 1979).

20. – Termination of parental rights, cruel and unusual punishment.

The termination of a mother’s parental rights, in part because of her criminal acts and resulting imprisonment, did not amount to cruel and unusual punishment since the termination of her parental rights was a separate matter from that of her criminal conviction, and the action for termination of parental rights was not brought to further punish the mother, but was a reasonable exercise of the State’s legitimate interest in providing for the welfare of the children. Vance v. Lincoln County Dep't of Public Welfare, 582 So. 2d 414, 1991 Miss. LEXIS 360 (Miss. 1991).

21. – Sentences within statutory limit, cruel and unusual punishment.

In a sale of cocaine case, defendant’s 60-year sentence was not excessive because it was well within the statutorily proscribed limits, the trial judge noted that defendant had sold cocaine to a buyer over 100 times, and the gas station at which defendant sold cocaine was within walking distance of a school. Phinizee v. State, 983 So. 2d 322, 2007 Miss. App. LEXIS 631 (Miss. Ct. App. 2007).

Defendant’s sentence as a habitual offender after he was convicted of the possession of cocaine and the possession of hydromorphone was constitutional because he was sentenced to 108 years under Miss. Code Ann. §41-29-147, and that sentence was within the statutory limits. Roach v. State, 7 So.3d 932, 2007 Miss. App. LEXIS 538 (Miss. Ct. App. 2007), rev'd, 7 So.3d 911, 2009 Miss. LEXIS 199 (Miss. 2009).

In a case involving the sale of cocaine, defendant’s rights under Miss. Const. Art. 3, §§ 14, 26, 28 and U.S. Const. Amends. 5, 6, 8, and 14 were not violated by the maximum 30-year sentence; the sentence imposed was within the statutory limitation and was within the sound discretion of the trial judge. Johnson v. State, 950 So. 2d 178, 2007 Miss. LEXIS 125 (Miss. 2007).

Defendant’s sentence of 20 years in prison, with 10 years to be suspended and five years of post-release probation, for one count of burglary of an occupied dwelling was not grossly disproportionate where he had been involved in other domestic disturbances prior to the one in question; thus, the 20-year sentence was within the statutory guidelines. Edge v. State, 945 So. 2d 1004, 2007 Miss. App. LEXIS 4 (Miss. Ct. App. 2007).

Defendant’s sentence of life in prison without the possibility of parole after he was convicted of grand larceny did not violate the Eighth Amendment to the U.S. Constitution where he was sentenced within the mandatory statutory limits set out in Miss. Code Ann. §99-19-83 for habitual offenders; his sentence was not grossly disproportionate. Kelly v. State, 947 So. 2d 1002, 2006 Miss. App. LEXIS 571 (Miss. Ct. App. 2006), cert. denied, 947 So. 2d 960, 2007 Miss. LEXIS 89 (Miss. 2007).

Circuit court had the authority to impose a life sentence for defendant’s conviction of capital rape because the legislature used words indicating judicial discretion would be the determination for crimes of statutory rape in Miss. Code Ann. §97-3-65 (2)(c). Foley v. State, 914 So. 2d 677, 2005 Miss. LEXIS 586 (Miss. 2005).

In a statutory rape case, defendant’s Eighth Amendment rights were not violated by the imposition of a 40-year sentence for three convictions because the sentence imposed was within the range provided in Miss. Code Ann. §97-3-65(2). Price v. State, 898 So. 2d 641, 2005 Miss. LEXIS 127 (Miss. 2005).

Rather than having 32 years of his 40-year sentence suspended, had the trial court been aware of his previous felony, the inmate would have received the entire sentence pursuant to Miss. Code Ann. §47-7-33(1). The inmate received one-fifth of the sentence that should have been imposed; this could hardly be said to constitute cruel and unusual punishment. Black v. State, 902 So. 2d 612, 2004 Miss. App. LEXIS 1076 (Miss. Ct. App. 2004), cert. denied, 901 So. 2d 1273, 2005 Miss. LEXIS 333 (Miss. 2005).

In an assault case, defendant’s sentence did not constitute cruel and unusual punishment as the maximum sentence for aggravated assault was 20 years and defendant’s 15-year sentence was not excessive or disproportionate to the crime. Lewis v. State, 897 So. 2d 994, 2004 Miss. App. LEXIS 929 (Miss. Ct. App. 2004), cert. denied, 896 So. 2d 373, 2005 Miss. LEXIS 225 (Miss. 2005).

Two consecutive 20-year sentences for defendant’s convictions for manslaughter and aggravated assault where he shot and killed his wife’s boyfriend and shot his wife in the neck did not constitute cruel and unusual punishment as the sentences imposed were within the statutory range for Miss. Code Ann. §97-3-25 and Miss. Code Ann. §97-3-7(2), and the trial judge articulated his reasoning for the sentences imposed. Lewis v. State, 905 So. 2d 729, 2004 Miss. App. LEXIS 1188 (Miss. Ct. App. 2004).

Consecutive sentences of 30 and 45 years for armed carjacking and armed robbery were within the statutory limits for those offenses and were not excessive despite the length of the sentences and regardless of the fact that defendant chose to go to trial rather than accept a plea bargain for 10 years on each count as his codefendants elected to do. McCline v. State, 856 So. 2d 556, 2003 Miss. App. LEXIS 460 (Miss. Ct. App.), cert. denied, 860 So. 2d 315, 2003 Miss. LEXIS 722 (Miss. 2003).

On appeal, defendant alleged that the trial court’s sentence for his first offense constituted cruel and unusual punishment in violation of the Eighth Amendment, but consideration of first time offender status was not the trial judge’s only consideration in sentencing defendant to the maximum sentence available; defendant’s sentence was not grossly disproportionate to the crime of possession of precursor drugs with knowledge that the drugs would be used to manufacture a controlled substance for which he already had been convicted; thus, the trial judge did not abuse his discretion in sentencing defendant to the maximum penalty available within the statute, Miss. Code Ann. §41-29-313. Burchfield v. State, 2003 Miss. App. LEXIS 660 (Miss. Ct. App. July 22, 2003), op. withdrawn, sub. op., 892 So. 2d 248, 2004 Miss. App. LEXIS 538 (Miss. Ct. App. 2004).

After a guilty plea to cocaine possession, an inmate’s suspended eight-year sentence with probation was not excessive because it was well within the maximum sentence authorized by law. Gunter v. State, 841 So. 2d 195, 2003 Miss. App. LEXIS 249 (Miss. Ct. App. 2003).

Where defendant’s 20-year sentence with only 14 years actually to serve was within the statutory parameters and was not grossly disproportionate to the crime, defendant failed to show that his sentence was disproportionately harsh for the crime charges, and therefore was cruel and unusual. Alston v. State, 841 So. 2d 215, 2003 Miss. App. LEXIS 248 (Miss. Ct. App. 2003).

Where appellant had pleaded guilty to six counts of sale of cocaine, his sentence of 30 years on each count to run concurrently, with 10 years suspended and five years’ probation, was within the statutory scheme and, hence, was not cruel and unusual punishment. Falconer v. State, 832 So. 2d 622, 2002 Miss. App. LEXIS 856 (Miss. Ct. App. 2002).

The appellate court rejected defendant’s argument that his 12-year sentence for possession of cocaine was cruel and unusual because it was disproportionately harsh due to the fact that possession of cocaine was a victimless crime which constituted no danger to the community. Jefferson v. State, 832 So. 2d 1270, 2002 Miss. App. LEXIS 847 (Miss. Ct. App. 2002).

Evidence that defendant pointed a gun at two store clerks, demanded money, and took money from the cash register drawer and the clerks’ purses, supported the imposition of consecutive 30-year and 10-year sentences against a defendant convicted of two counts of armed robbery; sentences were within the maximum range set forth in Miss. Code Ann. §97-3-79 and were not cruel or unusual punishment under either the Eighth Amendment to the Constitution of the United States or Miss. Const. art. 3, § 28, nor were the sentences disproportionate to the offenses committed. Womack v. State, 827 So. 2d 55, 2002 Miss. App. LEXIS 518 (Miss. Ct. App. 2002).

Where sentence does not exceed statutory limits, it does not constitute cruel and inhuman treatment. Sanders v. State, 678 So. 2d 663, 1996 Miss. LEXIS 300 (Miss. 1996).

A 10-year sentence imposed upon a defendant pursuant to §63-11-30(4) for a DUI maiming conviction did not constitute cruel or unusual punishment, as it was within the statutory limits. Holloman v. State, 656 So. 2d 1134, 1995 Miss. LEXIS 270 (Miss. 1995).

A sentence of 15 years imprisonment and a $9,000 fine for conviction of sale of cocaine was within the provisions of the statute and within the sound discretion of the trial judge, and did not constitute cruel and inhuman punishment. Bradley v. State, 562 So. 2d 1276, 1990 Miss. LEXIS 267 (Miss. 1990).

The imposition of a sentence by the trial judge does not constitute cruel and inhuman punishment and is not an abuse of discretion if it is within the statutory limits. Byrd v. State, 522 So. 2d 756, 1988 Miss. LEXIS 70 (Miss. 1988).

Sentence of 20 years on each of 2 counts of manslaughter, to run concurrently, did not amount to cruel and unusual punishment because sentence was permitted by statute, and therefore was within sound discretion of trial judge. Whitley v. State, 511 So. 2d 929, 1987 Miss. LEXIS 2691 (Miss. 1987).

Sentence of 30 years in prison without probation or parole, maximum term of imprisonment prescribed for offense of sexual battery, did not violate either United States Constitution or Mississippi Constitution; under standards set forth in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637, 1983 U.S. LEXIS 93 (U.S. 1983) (superseded by statute as stated in Re Petition of Lauer (CA8) 788 F.2d 135) found that sentence was not grossly disproportionate to crime of sexual battery where harshness of penalty was justified by gravity of offense, non-habitual offenders convicted under §97-3-95 could be sentenced to up to 30 years in prison, and sentence was not so dissimilar to sentences for same crime in other states as to make it a disproportionate penalty. Davis v. State, 510 So. 2d 794, 1987 Miss. LEXIS 2637 (Miss. 1987).

Sentence of life imprisonment for armed robbery was not cruel or unusual where statute under which defendant was charged imposed penalty of life imprisonment upon conviction, and conviction was based on testimony of accomplice who received only 5 years suspended sentence, because accomplice’s description of events on night in question was corroborated by others. Reed v. State, 506 So. 2d 277, 1987 Miss. LEXIS 2483 (Miss. 1987).

The mandatory life sentence meted out to defendant, who was convicted of murder, did not violate the Eighth and Fourteenth Amendments, even though the sentencing statute did not provide for individual consideration of the offense and the offender, since no such procedure is required for a charge less than a capital charge. Taylor v. State, 452 So. 2d 441, 1984 Miss. LEXIS 1705 (Miss. 1984), but see May v. State, 524 So. 2d 957, 1988 Miss. LEXIS 191 (Miss. 1988).

Sentence of 10 years following conviction of selling marijuana was a sentence within the limits of the statute and was not cruel or unusual punishment. Clanton v. State, 279 So. 2d 599, 1973 Miss. LEXIS 1470 (Miss. 1973).

22. – Disproportionate sentence, cruel and unusual punishment.

Because the supreme court had already considered the merits of petitioner’s claim that his death sentence was disproportionate when compared to similar cases, petitioner was procedurally barred from raising it again in a motion for post-conviction relief. Corrothers v. State, 255 So.3d 99, 2017 Miss. LEXIS 40 (Miss. 2017).

Defendant’s 30-year prison sentence for the statutory rape of his 11-year-old daughter was not disproportionate because under Miss. Code Ann. §97-3-65(3)(c), the statutory rape of a child by an adult carried with it a maximum penalty of life imprisonment, as well as a minimum sentence of 20 years in prison, irrespective of whether it was one’s first offense. Powell v. State, 49 So.3d 166, 2010 Miss. App. LEXIS 650 (Miss. Ct. App. 2010).

Circuit court sentenced appellant to eight years, which clearly was within the statutory authority and not disproportionate to the crime; although appellant claimed she was a first-time offender, she was previously charged three times for driving under the influence and she was addicted to marijuana and alcohol. Field v. State, 28 So.3d 697, 2010 Miss. App. LEXIS 101 (Miss. Ct. App. 2010).

Defendant’s sentence conformed to the requirements of the habitual offender statute and the circuit court considered defendant’s sentence in light of the facts and her previous criminal history; accordingly, she did not receive a grossly disproportionate sentence. Brown v. State, 37 So.3d 1205, 2009 Miss. App. LEXIS 945 (Miss. Ct. App. 2009), cert. denied, 39 So.3d 5, 2010 Miss. LEXIS 329 (Miss. 2010), cert. denied, 562 U.S. 1015, 131 S. Ct. 533, 178 L. Ed. 2d 392, 2010 U.S. LEXIS 8510 (U.S. 2010).

Defendant’s 15-year prison sentence for strong arm robbery was not disproportionate to the crime because the sentence was consistent with the State’s recommendation, which defendant acknowledged prior to entering a guilty plea; the sentence was also within the statutory limits. Beamon v. State, 9 So.3d 376, 2009 Miss. LEXIS 141 (Miss. 2009).

Defendant offered no cases supporting his argument that consecutive sentences for serious drug offenses that fell within the statutory limits were grossly disproportionate; therefore, the circuit judge did not abuse his discretion or violate defendant’s constitutional right to be free from cruel and unusual punishment when he sentenced defendant. Parker v. State, 5 So.3d 458, 2008 Miss. App. LEXIS 580 (Miss. Ct. App. 2008), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 131 (Miss. 2009).

Defendant’s sentence after she was convicted of aggravated assault was appropriate because it was not grossly disproportionate to the crime committed; the trial court noted that aggravated assault was a serious crime and the trial court considered the fact that defendant had a relatively clean record and that she had been consistently employed. White v. State, 958 So. 2d 290, 2007 Miss. App. LEXIS 412 (Miss. Ct. App. 2007).

In a case where defendant was convicted of three counts of fondling the 15-year-old victim under Miss. Code Ann. §97-5-23, defendant’s three 10-year consecutive sentences under Miss. Code Ann. §99-19-21 were not disproportionate to defendant’s crimes, were within the limits set by statute, and did not violate the Eighth Amendment. Mingo v. State, 944 So. 2d 18, 2006 Miss. LEXIS 679 (Miss. 2006).

Death sentence for capital murder of four-year-old child was not excessive or disproportionate under Miss. Code Ann. §99-19-105(3)(c) and the Eighth and Fourteenth Amendments where evidence of strangulation and other factors was sufficient to support the jury’s finding of statutory aggravating circumstances, the sentence was not excessive or disproportionate when compared to other factually similar cases where the death penalty was imposed, the sentence was not imposed under the influence of passion, prejudice, or any other factor, and the jury did not consider any invalid aggravating circumstances. Rubenstein v. State, 2005 Miss. LEXIS 789 (Miss. Dec. 1, 2005), op. withdrawn, 2006 Miss. LEXIS 424 (Miss. Aug. 10, 2006), sub. op., 941 So. 2d 735, 2006 Miss. LEXIS 411 (Miss. 2006).

Defendant’s sentence fell within the statutory guidelines and as such did not constitute cruel and unusual punishment; there was no constitutional right to a plea bargain and had a plea bargain been entered, the trial judge would not have been bound to accept the recommended sentence. Davis v. State, 910 So. 2d 1228, 2005 Miss. App. LEXIS 615 (Miss. Ct. App. 2005).

Defendant’s sentence was not grossly disproportionate as it fell within the limits set by the legislature for the offense; the judge determined that the circumstances of the offense supported a penalty on the high end and the finding was not an abuse of discretion. Grimes v. State, 909 So. 2d 1184, 2005 Miss. App. LEXIS 75 (Miss. Ct. App.), cert. denied, 901 So. 2d 1273, 2005 Miss. LEXIS 338 (Miss. 2005).

Court rejected defendant’s claim that the enhanced 10-year sentence imposed pursuant to Miss. Code Ann. §41-29-142 upon his conviction for selling cocaine within 1,500 feet of a church in violation of Miss. Code Ann. §41-29-139 was excessive. A pre-sentencing report was included in the record and the 10-year sentence was considerably less than the 30-year maximum provided in §41-29-139, and defendant’s sentence was well within the enhancement guidelines provided in Miss. Code Ann. §41-29-142, which allowed a sentence of up to three times the sentence imposed under Miss. Code Ann. § 41-29-139. Moore v. State, 909 So. 2d 77, 2005 Miss. App. LEXIS 288 (Miss. Ct. App. 2005).

Death sentence for an aider and abettor who provided a gun that was used in a murder was not excessive or disproportionate under Miss. Code Ann. §99-19-105(3)(c)and state and federal constitutional law because, when the jury returned the death sentence, it specifically found that defendant had intended to kill the victim and contemplated that lethal force would be used. Lynch v. State, 877 So. 2d 1254, 2004 Miss. LEXIS 591 (Miss. 2004), cert. denied, 543 U.S. 1155, 125 S. Ct. 1299, 161 L. Ed. 2d 122, 2005 U.S. LEXIS 1592 (U.S. 2005).

Trial court’s decision not to give defendant a “volume discount” but to impose 30- and 20-year consecutive sentences in two separate drug sale cases was proper, as the sentences were within the legal limits and did not violate the Eight Amendment by being grossly disproportionate. Heatherly v. State, 864 So. 2d 1036, 2004 Miss. App. LEXIS 73 (Miss. Ct. App. 2004).

Where appellant’s sentences for several counts of armed robbery did not exceed the sentence set forth in Miss. Code Ann. §97-3-75, it was not disproportionate; moreover, appellant was not entitled to receive a sentence proportionate to that imposed upon an accomplice. Booker v. State, 840 So. 2d 801, 2003 Miss. App. LEXIS 205 (Miss. Ct. App. 2003).

Sentence imposed for the sale of marijuana was not excessive or disproportionate because the sentence was within the limits set forth by Miss. Code Ann. §41-29-147; Miss Code Ann. §41-29-139 did not apply because defendant was a second or subsequent offender. Fields v. State, 840 So. 2d 796, 2003 Miss. App. LEXIS 206 (Miss. Ct. App. 2003).

Defendant was entitled to a remand for review of his sentence by the trial judge where he was a first time offender and was sentenced to the maximum sentence allowed by law: 30 years imprisonment for the sale of cocaine; defendant contended that his sentence was disproportionate to the crime and was in violation of the U.S. Const. amend. VIII. Towner v. State, 837 So. 2d 221, 2003 Miss. App. LEXIS 54 (Miss. Ct. App. 2003).

A sentence of 30 years, day for day, without the possibility of parole, for the crime of sexual battery of a child under the age of 14 years, was not excessive, did not constitute cruel and unusual punishment, and was not disproportionate to the crime committed. Bell v. State, 797 So. 2d 945, 2001 Miss. LEXIS 134 (Miss. 2001).

Defendant’s sentence of eight years for manslaughter was not cruel and unusual punishment. Wade v. State, 802 So. 2d 1023, 2001 Miss. LEXIS 240 (Miss. 2001).

A sentence of life imprisonment for voyeurism was not disproportionate to the crime where the indictment returned against the defendant properly charged that he was an habitual offender and he had been convicted previously of the crimes of attempted rape, burglary, and voyeurism. Coleman v. State, 788 So. 2d 788, 2000 Miss. App. LEXIS 551 (Miss. Ct. App. 2000).

A 40-year sentence on two counts of aggravated assault did not constitute cruel and unusual punishment and was not disproportionate to the offense where the statutory maximum sentence for each assault was 20 years and the defendant assaulted two individuals with a loaded firearm by firing at and missing one of those individuals and striking and seriously injuring the other. Williams v. State, 784 So. 2d 230, 2000 Miss. App. LEXIS 538 (Miss. Ct. App. 2000).

A threshold comparison of the crime to which the defendant admitted his guilt in the form of a guilty plea, manslaughter, to the 20-year sentence imposed by the trial court, did not give rise to an inference of gross disproportionality and, therefore, a proportionality analysis was not necessary. Holt v. State, 757 So. 2d 1088, 2000 Miss. App. LEXIS 211 (Miss. Ct. App. 2000).

The defendant’s sentence to 66 years imprisonment for delivery and possession of cocaine was not disproportionate where he was convicted of delivering a large quantity of cocaine (45 rocks) and of possession of a small amount of residue. Jones v. State, 740 So. 2d 904, 1999 Miss. LEXIS 247 (Miss. 1999).

A 60 year sentence for the sale of cocaine within 1,500 feet of a school was not disproportionate where (1) the crime was not the defendant’s first offense, and (2) the trial court asked the defendant if there was anything he wanted to say before sentencing, but the defendant declined. Taylor v. State, 741 So. 2d 960, 1999 Miss. App. LEXIS 353 (Miss. Ct. App. 1999).

In a prosecution for unlawful sale of cocaine within 1,500 feet of a church, based on a first-time offense arising from the sale of a small amount of cocaine, a sentence of 60 years imprisonment was grossly disproportionate. White v. State, 742 So. 2d 1126, 1999 Miss. LEXIS 217 (Miss. 1999).

A sentence of 20 years for aggravated assault and 5 years for grand larceny was not excessive or grossly disproportionate where the sentence was the maximum allowable under the statutes violated by the defendant who struck a 65-year-old man in the head with a hammer 9 times and stole his car. Young v. State, 731 So. 2d 1120, 1999 Miss. LEXIS 19 (Miss. 1999).

The imposition of a 30 year sentence and accompanying $10,000 fine for the sale of cocaine in violation of §41-29-139 was not unconstitutionally disproportionate where the sentence was less than the maximum allowable under the statute, notwithstanding the defendant’s previously clean criminal record and the meager amount of cocaine involved. Cook v. State, 728 So. 2d 117, 1998 Miss. App. LEXIS 1036 (Miss. Ct. App. 1998).

The sentence the defendant received was not manifestly disproportionate to the crime committed and did not require extended proportionality analysis under the 8th Amendment where the sentence imposed was within the limits prescribed by the statute violated by the defendant. Wilkerson v. State, 731 So. 2d 1173, 1998 Miss. LEXIS 548 (Miss. 1999).

A life sentence without parole was not disproportionate where the defendant was convicted of possession of a controlled substance and was found to be a habitual offender on the basis of prior convictions for robbery and aggravated robbery. Wall v. State, 718 So. 2d 1107, 1998 Miss. LEXIS 368 (Miss. 1998).

The court properly rejected the contention that the robbery aggravating circumstance does not genuinely narrow the class of persons on whom the death penalty is imposed because robbery-murder standing alone, is not a crime for which the death penalty is proportionate punishment, and that, therefore, it violates the Eighth Amendment and Article 3, Section 28 of the Mississippi Constitution. Doss v. State, 709 So. 2d 369, 1996 Miss. LEXIS 267 (Miss. 1996), cert. denied, 523 U.S. 1111, 118 S. Ct. 1684, 140 L. Ed. 2d 821, 1998 U.S. LEXIS 3048 (U.S. 1998).

Under Gregg v. Georgia, death sentence must not be excessive in relation to crime for which it is imposed, and death sentences must be imposed with reasonable consistency. (Per Smith, J., with three Justices concurring, and Chief Justice and two Justices concurring in result.) Holland v. State, 705 So. 2d 307, 1997 Miss. LEXIS 388 (Miss. 1997), cert. denied, 525 U.S. 829, 119 S. Ct. 80, 142 L. Ed. 2d 63, 1998 U.S. LEXIS 5017 (U.S. 1998).

Sentencing scheme permitting imposition of death penalty for certain felony murders without a finding of intent to kill, but not for simple premeditated murder committed in atrocious manner, does not violate requirements of Eighth Amendment that death sentence not be excessive in relation to crime for which it was imposed and that death sentences be imposed with reasonable consistency. (Per Smith, J., with three Justices concurring, and Chief Justice and two Justices concurring in result.) Holland v. State, 705 So. 2d 307, 1997 Miss. LEXIS 388 (Miss. 1997), cert. denied, 525 U.S. 829, 119 S. Ct. 80, 142 L. Ed. 2d 63, 1998 U.S. LEXIS 5017 (U.S. 1998).

Felony-murder aggravator is not disproportionate within meaning of Eighth Amendment even though unintentional felony-murder is punishable by death while premeditated murder, standing alone, is not, as not every defendant eligible for death penalty will have committed murder while in the course of statutorily enumerated felonies, so that felony-murder aggravator genuinely narrows class of defendants eligible for the death penalty. Wilcher v. State, 697 So. 2d 1087, 1997 Miss. LEXIS 100 (Miss. 1997), cert. denied, 522 U.S. 1053, 118 S. Ct. 705, 139 L. Ed. 2d 647, 1998 U.S. LEXIS 149 (U.S. 1998).

Claim that use of underlying felony as aggravating circumstance violates Eighth Amendment was procedurally barred where defendant did not raise issue at trial. Wilcher v. State, 697 So. 2d 1087, 1997 Miss. LEXIS 100 (Miss. 1997), cert. denied, 522 U.S. 1053, 118 S. Ct. 705, 139 L. Ed. 2d 647, 1998 U.S. LEXIS 149 (U.S. 1998).

A defendant’s sentence was not disproportionate to the crime and did not amount to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution where he was convicted of possession of marijuana with intent to deliver or distribute and was sentenced to serve 20 years in the custody of the Mississippi Department of Corrections and ordered to pay a $250,000 fine, since the sentence was less than the maximum 30 years imprisonment and one million dollar fine authorized by §41-29-139(b)(1). Hart v. State, 639 So. 2d 1313, 1994 Miss. LEXIS 243 (Miss. 1994).

A 60-year sentence for a conviction of sale of cocaine did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment, even though the defendant was convicted of selling only a small amount of cocaine, where the defendant was given a 30-year sentence pursuant to §41-29-139(b)(1) for his conviction and the sentence was then doubled pursuant to §41-29-147 because the defendant had previously been convicted of possession of marijuana, since the sentence was within the statutory guidelines and the legislature has called for stiff penalties for drug offenders as a matter of public policy. Campbell v. Campbell, 618 So. 2d 116, 1993 Miss. LEXIS 200 (Miss. 1993).

The imposition of a 25-year sentence for the crime of possession of 5.7 grams of cocaine with intent to distribute did not constitute a denial of the defendant’s constitutional rights on the ground that it was excessive and disproportionate where the defendant did not produce facts concerning sentences imposed on other criminals, the sentence was within the limits fixed by §41-29-139(b), and the sentence was not “grossly disproportionate” or “shockingly excessive.” Edwards v. State, 615 So. 2d 590, 1993 Miss. LEXIS 97 (Miss. 1993).

A 14-year sentence for forging and publishing a $40 check, a 2-year consecutive sentence for forging a $50 check, and 2 14-year sentences for forging and publishing checks in the amounts of $54 and $62, though severe, were not so “grossly disproportionate” as to violate the Eighth Amendment to the United States Constitution. Wallace v. State, 607 So. 2d 1184, 1992 Miss. LEXIS 586 (Miss. 1992).

The sentencing of a defendant under §99-19-81, the habitual offender statute, to the 20-year maximum term for aggravated assault as set forth in §97-3-7(2) was not disproportionate to the crime charged and did not violate the Eighth Amendment where the defendant was convicted of severely bludgeoning the victim with an iron pipe; the statutory maximum penalty for aggravated assault is not grossly out of line with the maximum terms allowed for the commission of other violent crimes in Mississippi, and the maximum penalties imposed for aggravated assault in neighboring states are not profoundly different from those in Mississippi. Fleming v. State, 604 So. 2d 280, 1992 Miss. LEXIS 382 (Miss. 1992).

Sentence of life imprisonment without parole was not unconstitutionally disproportionate for defendant sentenced as habitual offender on record of convictions for burglary, armed robbery, and prison escape, and was not cruel and unusual punishment under Eighth Amendment. Even though final conviction was for auto burglary, a concededly less offense than earlier offenses, earlier record was of convictions for armed robbery, burglary, escape, and armed robbery, at least two of which were crimes of violence per se. McGruder v. Puckett, 954 F.2d 313, 1992 U.S. App. LEXIS 2655 (5th Cir. Miss.), cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98, 1992 U.S. LEXIS 5084 (U.S. 1992).

An extended proportionality analysis is not required by the Eighth Amendment when a sentence is alleged to constitute cruel and unusual punishment, except in the context of a sentence of life in prison without the possibility of parole, or a sentence which is manifestly disproportionate to the crime committed. Barnwell v. State, 567 So. 2d 215, 1990 Miss. LEXIS 467 (Miss. 1990).

Death sentence imposed upon defendant was not disproportionate and not consequence of emotion and caprice where review of past death penalty cases indicated that death penalty, if no constitutional error were found in defendant’s trial, was not disproportionate. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Death sentence was not imposed under influence of passion, prejudice, or any other arbitrary factor, nor was it excessive or disproportionate to penalty imposed in cases since 1976, considering crime, manner in which it was committed, and defendant; sentencing phase followed in trial provided meaningful basis for distinguishing the few cases in which death penalty is imposed and the many cases in which it is not imposed. Jones v. State, 517 So. 2d 1295, 1987 Miss. LEXIS 2296 (Miss. 1987), vacated, 487 U.S. 1230, 108 S. Ct. 2891, 101 L. Ed. 2d 925, 1988 U.S. LEXIS 3048 (U.S. 1988), overruled, Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

A sentence of life imprisonment for the rape of a 10-year-old female did not violate the constitutional prohibition against cruel and unusual punishment. Horton v. State, 374 So. 2d 764, 1979 Miss. LEXIS 2297 (Miss. 1979).

Twenty-five year sentence for an attempted robbery by a defendant who was 16 years of age at the time the offense was committed did not constitute cruel or unusual punishment. Howard v. State, 319 So. 2d 219, 1975 Miss. LEXIS 1471 (Miss. 1975), cert. denied, 425 U.S. 954, 96 S. Ct. 1733, 48 L. Ed. 2d 199, 1976 U.S. LEXIS 1500 (U.S. 1976).

Imposing twenty-year sentence on defendant convicted of manslaughter for driving truck while drunk and colliding with another car causing death of passenger in other car was not cruel and unusual punishment. Lester v. State, 209 Miss. 171, 46 So. 2d 109, 1950 Miss. LEXIS 376 (Miss. 1950).

23. – Capital prosecution of juveniles, cruel and unusual punishment.

Defendant was not under the age of 18 when he committed the crime of capital murder, therefore the imposition of the death penalty on defendant does not violate the Eighth and Fourteenth Amendments. Hodges v. State, 912 So. 2d 730, 2005 Miss. LEXIS 164 (Miss.), cert. denied, 546 U.S. 1037, 126 S. Ct. 739, 163 L. Ed. 2d 579, 2005 U.S. LEXIS 8670 (U.S. 2005).

Imposition of capital punishment upon a defendant who committed murder at 17 years of age did not offend the prohibition of the Eighth Amendment, U.S. Const. Amend. VIII, against cruel and unusual punishment, nor did it offend the similar provision in Miss. Const. Art. 3, § 28. Dycus v. State, 875 So. 2d 140, 2004 Miss. LEXIS 366 (Miss. 2004), vacated, 544 U.S. 901, 125 S. Ct. 1589, 161 L. Ed. 2d 271, 2005 U.S. LEXIS 2212 (U.S. 2005).

Imposition of the death penalty on a petitioner who was 16 at the time he committed four murders presented no per se case of cruel and unusual punishment, under precedents of both the United States Supreme Court and the Mississippi Supreme Court. McGilberry v. State, 843 So. 2d 21, 2003 Miss. LEXIS 93 (Miss. 2003).

Defendant could not assert that death penalty violated Eighth Amendment because statutes did not set a minimum age below which child may not be transferred from youth court to circuit court for crimes punishable by death where defendant committed his crime at age 17, an age where it is sufficiently clear that no national consensus forbids imposition of capital punishment. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Mississippi procedure does not violate the constitutional prohibition against cruel and unusual punishment by vesting original jurisdiction in the circuit court when a person under 18 years of age is charged with a capital offense, rather than requiring a certification proceeding in youth court for transfer to the circuit court; Mississippi law allows a capital murder defendant who is under the age of 18 years to request a special hearing to consider his or her age, lack of prior offenses, likelihood of successful rehabilitation and other factors which favor sending the case to the youth court rather than continuing in circuit court. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

Mississippi procedure does not violate the constitutional prohibition against cruel and unusual punishment by its failure to explicitly state a minimum age that a person may be subject to the death penalty, since the age at which one may receive a death sentence for the crime of capital murder is implied; no one under 13 years of age may receive the death penalty because a child under the age of 13 cannot even be charged with a felony. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

A sentence of death was not improperly based on “vengeance and sympathy,” in spite of the defendant’s argument that the jury’s sentencing determination was improperly predicated on the personal characteristics of the victim, where in response to the defendant’s parents’ request to the jury not to sentence their son to death the prosecutor merely noted that the defendant’s parents were not the only ones who had suffered and grieved and that their “tears might be outweighed by the fact of the victim’s murder,” and he reminded the jury that the victim’s parents had also suffered a loss and that they must not forget the “cold, calculated killing” of the victim. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

A death sentence for a conviction of murder was disproportionate to the penalty imposed in similar capital cases, considering both the crime and the defendant, where the defendant was 18 years old at the time of the crime, he suffered some mental illness and mental retardation, the murder was committed by another person, and the defendant did nothing physically to assist the other person in the assault. Reddix v. State, 547 So. 2d 792, 1989 Miss. LEXIS 359 (Miss. 1989).

Stay of execution not granted where alleged basis was that imposition of death sentence upon person too young to sit on jury violated Eighth Amendment proscription against cruel and unusual punishment, because it had never been raised before in this case and was therefore barred, and point had been summarily denied in prior cases. Johnson v. State, 508 So. 2d 1126, 1987 Miss. LEXIS 2588 (Miss. 1987).

24. – Capital punishment, cruel and unusual punishment.

In his post-conviction relief petition, petitioner failed to identify an alternative method of execution that was feasible, readily implemented, and significantly reduced a substantial risk of severe pain; thus, from the face of the petition, he had no Eighth Amendment method-of-execution claim, and his request for leave to proceed in the trial court with a motion for post-conviction relief was denied. Corrothers v. State, 255 So.3d 99, 2017 Miss. LEXIS 40 (Miss. 2017).

On the inmate’s claim that his execution would be unconstitutional under the Eighth and Fourteenth Amendments because he was mentally retarded, he was entitled to and did not receive an Atkins hearing because the inmate met the requirements of Chase and its progeny; the inmate’s claim was not procedurally barred under Miss. Code Ann. §99-39-21(1) because he could not have raised the claim before the trial court, as the Atkins decision was decided 12 days after the inmate was sentenced to death. Thorson v. State, 994 So. 2d 707, 2007 Miss. LEXIS 497 (Miss. 2007).

Serving 25 years on death row did not constitute cruel and unusual punishment under the Eighth Amendment; defendant’s argument that serving an excessive period on death row constituted cruel and unusual punishment in violation of his constitutional rights failed. King v. State, 960 So. 2d 413, 2007 Miss. LEXIS 317 (Miss. 2007), cert. denied, 552 U.S. 1190, 128 S. Ct. 1223, 170 L. Ed. 2d 77, 2008 U.S. LEXIS 1244 (U.S. 2008).

Post-conviction relief was denied on the issue of whether defendant’s death sentence was unconstitutionally excessive in capital murder case based on the fact that it was felony murder because the issue was procedurally barred; even if it was not, the issue was meritless since this argument had been previously rejected, and the jury found all four factors under Miss. Code Ann. §99-19-101. Howard v. State, 945 So. 2d 326, 2006 Miss. LEXIS 531 (Miss. 2006), cert. denied, 552 U.S. 829, 128 S. Ct. 49, 169 L. Ed. 2d 43, 2007 U.S. LEXIS 9278 (U.S. 2007).

In a capital case where three victims were beaten to death during a robbery, a death sentence imposed was not disporportionate to other similar crimes; the evidence supported a finding of the aggravating circumstance of robbery under Miss. Code Ann. §99-19-105, and there was no evidence that the jury was under the influence of passion, prejudice, or any other arbitrary factor. Le v. State, 913 So. 2d 913, 2005 Miss. LEXIS 151 (Miss.), cert. denied, 546 U.S. 1004, 126 S. Ct. 622, 163 L. Ed. 2d 508, 2005 U.S. LEXIS 8254 (U.S. 2005).

In a capital murder case, defendant’s assertion that Miss. Code Ann. §99-19-101 was unconstitutional under the Eighth Amendment was rejected because reckless disregard for human life was not an aspect of Mississippi’s capital sentencing scheme; the State was not required to prove intent to kill, and the jury determined that defendant’s conduct in participating in three homicides satisfied the four elements in Miss. Code Ann. §99-19-107(a)-(d). Le v. State, 913 So. 2d 913, 2005 Miss. LEXIS 151 (Miss.), cert. denied, 546 U.S. 1004, 126 S. Ct. 622, 163 L. Ed. 2d 508, 2005 U.S. LEXIS 8254 (U.S. 2005).

Petitioner’s application for leave to file a motion to vacate death sentence on the ground of mental retardation was denied; petitioner was a normal, productive citizen who was never characterized as “mentally retarded” until such time as being mentally retarded became critically important in the realm of postconviction relief. Wiley v. State, 890 So. 2d 892, 2004 Miss. LEXIS 1096 (Miss. 2004).

Defendant presented no evidence to suggest that he was mentally retarded and that the death penalty was therefore cruel and unusual punishment; defendant produce no expert opinion to show that he possessed an IQ of 75 or below or that a reasonable basis existed to believe that further testing would show defendant to be mentally retarded. Mitchell v. State, 886 So. 2d 704, 2004 Miss. LEXIS 1037 (Miss. 2004), cert. denied, 544 U.S. 1022, 125 S. Ct. 1982, 161 L. Ed. 2d 864, 2005 U.S. LEXIS 3824 (U.S. 2005).

At the time of his mental retardation evaluation, defendant (1) was appropriately groomed and properly maintained personal hygiene, (2) possessed a driver’s license, (3) was responsible for buying clothing, groceries, and personal items, (4) had completed school through the ninth grade and attended GED classes, and (5) was employed; thus, defendant did not show that he was mentally retarded. Therefore, defendant’s execution was not prohibited by the Eighth and the Fourteenth Amendment. Branch v. State, 882 So. 2d 36, 2004 Miss. LEXIS 586 (Miss. 2004), cert. denied, 544 U.S. 907, 125 S. Ct. 1595, 161 L. Ed. 2d 282, 2005 U.S. LEXIS 2289 (U.S. 2005).

Imposition of death penalty was not cruel and unusual punishment where the prisoner was an active participant in the victim’s murder, he knew that the kidnapping was committed in order to teach the victim a lesson, he held the victim down while another man hit the victim in the head with a hammer, and he chased the victim and brought him back for the beating to continue. Bishop v. State, 882 So. 2d 135, 2004 Miss. LEXIS 773 (Miss. 2004), cert. denied, 543 U.S. 1189, 125 S. Ct. 1401, 161 L. Ed. 2d 194, 2005 U.S. LEXIS 2123 (U.S. 2005).

Prisoner’s involvement was sufficient to justify the death sentence, even if the actual killer did not receive the death sentence, where the prisoner took an active role in the killing. The prisoner chased the victim and brought him back after the victim had been hit in the head with a hammer for the first time, and the prisoner held the victim as he was being struck by the killer. Bishop v. State, 882 So. 2d 135, 2004 Miss. LEXIS 773 (Miss. 2004), cert. denied, 543 U.S. 1189, 125 S. Ct. 1401, 161 L. Ed. 2d 194, 2005 U.S. LEXIS 2123 (U.S. 2005).

Where the issue of whether imposition of the death penalty on defendant for his crime was excessive or disproportionate was decided against defendant on direct appeal; the claim was procedurally barred and could not be relitigated in defendant’s postconviction petition for relief under Miss. Code Ann. §99-39-21(3); further, it had previously been determined that the death penalty for one who committed felony murder did not violate defendant’s rights under U.S. Const. amend. VIII. Grayson v. State, 879 So. 2d 1008, 2004 Miss. LEXIS 721 (Miss. 2004), cert. denied, 543 U.S. 1155, 125 S. Ct. 1301, 161 L. Ed. 2d 122, 2005 U.S. LEXIS 1593 (U.S. 2005).

Court concludes that the United States Supreme Court case law granted Eighth Amendment protection from execution to all mentally retarded persons, and the definitions approved and adopted in case law provide a clear standard to be used in Mississippi by the trial court in determining, for Eighth Amendment purposes, whether a criminal defendant was mentally retarded, and a trial judge will make such determination by a preponderance of the evidence, after receiving evidence presented by defendant and State. Chase v. State, 873 So. 2d 1013, 2004 Miss. LEXIS 548 (Miss. 2004).

The execution of the defendant would not constitute cruel and inhuman punishment, notwithstanding that he had been incarcerated on death row for 22 years while various appeals were pursued and his contention that he had suffered psychological trauma waiting for his execution and that there was nothing gained by the state from 22 years of needless infliction of pain and suffering. Jordan v. State, 786 So. 2d 987, 2001 Miss. LEXIS 109 (Miss. 2001), cert. denied, 534 U.S. 1085, 122 S. Ct. 823, 151 L. Ed. 2d 705, 2002 U.S. LEXIS 318 (U.S. 2002).

Subsection (d) of §99-19-101(5) does not violate the Eighth or Fourteenth Amendments to the United States Constitution.Evans v. State, 725 So. 2d 613, 1997 Miss. LEXIS 389 (Miss. 1997), cert. denied, 525 U.S. 1133, 119 S. Ct. 1097, 143 L. Ed. 2d 34, 1999 U.S. LEXIS 1510 (U.S. 1999).

Sentencing scheme permitting imposition of death penalty for certain felony murders without a finding of intent to kill, but not for simple premeditated murder committed in atrocious manner, does not violate equal protection or due process; legislature could have rationally decided that one class of murders either presented a different problem from the other or that the death penalty would be more effective deterrent to felony murders than to atrocious simple murders. (Per Smith, J., with three Justices concurring, and Chief Justice and two Justices concurring in result.) Holland v. State, 705 So. 2d 307, 1997 Miss. LEXIS 388 (Miss. 1997), cert. denied, 525 U.S. 829, 119 S. Ct. 80, 142 L. Ed. 2d 63, 1998 U.S. LEXIS 5017 (U.S. 1998).

Eighth Amendment does not categorically prohibit execution of mentally retarded persons. Wells v. State, 698 So. 2d 497, 1997 Miss. LEXIS 258 (Miss. 1997), cert. denied, 522 U.S. 1122, 118 S. Ct. 1065, 140 L. Ed. 2d 125, 1998 U.S. LEXIS 1059 (U.S. 1998).

Imposition of death sentence on mentally retarded defendant convicted of fatally stabbing 13-year-old child was not excessive or disproportionate to penalty imposed in similar cases. Wells v. State, 698 So. 2d 497, 1997 Miss. LEXIS 258 (Miss. 1997), cert. denied, 522 U.S. 1122, 118 S. Ct. 1065, 140 L. Ed. 2d 125, 1998 U.S. LEXIS 1059 (U.S. 1998).

The court properly rejected the contention that the robbery aggravating circumstance does not genuinely narrow the class of persons on whom the death penalty is imposed because robbery-murder standing alone, is not a crime for which the death penalty is proportionate punishment, and that, therefore, it violates the Eighth Amendment and Article 3, Section 28 of the Mississippi Constitution. Doss v. State, 709 So. 2d 369, 1996 Miss. LEXIS 267 (Miss. 1996), cert. denied, 523 U.S. 1111, 118 S. Ct. 1684, 140 L. Ed. 2d 821, 1998 U.S. LEXIS 3048 (U.S. 1998).

Sentencing 17-year-old defendant to death was not prohibited merely because state statute did not explicitly state that 16 or 17-year-old defendant could be punished with execution for capital crime. Holly v. State, 671 So. 2d 32, 1996 Miss. LEXIS 15 (Miss.), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4179 (U.S. 1996).

Death penalty could be imposed on 17-year-old defendant without particularized findings as to his maturity and moral responsibility. Holly v. State, 671 So. 2d 32, 1996 Miss. LEXIS 15 (Miss.), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4179 (U.S. 1996).

The execution of a defendant who had been repeatedly diagnosed as a chronic paranoid schizophrenic did not constitute cruel and unusual punishment, since every expert who testified stated that one could be a paranoid schizophrenic and still be competent to be executed under §99-19-57. Billiot v. State, 655 So. 2d 1, 1995 Miss. LEXIS 88 (Miss. 1995), cert. denied, 516 U.S. 1095, 116 S. Ct. 818, 133 L. Ed. 2d 762, 1996 U.S. LEXIS 787 (U.S. 1996).

Death penalty is permissible where one of following four conditions is found: (1) defendant actually killed victim (2) defendant attempted to kill victim (3) defendant intended killing of victim take place (4) defendant contemplated lethal force would be employed. Argument that lack of jury finding that defendant intended to kill victim necessitated reversal of death penalty was rejected. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Issue of discriminatory application of death penalty to defendant is barred, absent showing of cause, because issue had never been raised prior to appeal to Supreme Court. Johnson v. State, 508 So. 2d 1126, 1987 Miss. LEXIS 2588 (Miss. 1987).

A defendant’s Eighth Amendment rights were not violated by imposition of the death penalty following his conviction for capital murder based upon murder committed during the commission of a felony, where, although defendant did not actually kill the victim, he planned, schemed, and ultimately physically subdued the victim by choking him with a rope, while another stabbed and bludgeoned the victim to death. Leatherwood v. State, 435 So. 2d 645, 1983 Miss. LEXIS 3092 (Miss. 1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (U.S. 1984).

Imposition of the death penalty for the rape of a female child under the age of 12 years does not constitute cruel and unusual punishment in violation of the United States Constitution. Upshaw v. State, 350 So. 2d 1358, 1977 Miss. LEXIS 2249 (Miss. 1977).

24.5. – Delay in carrying out execution.

Petitioner’s claim that the United States Constitution prohibits the State from executing an inmate more than forty years after he was originally sentenced to death lacked merit because he provided no compelling argument to depart from the United States Supreme Court’s holdings that rejected similar claims. Jordan v. State, 224 So.3d 1252, 2017 Miss. LEXIS 245 (Miss. 2017), cert. denied, — U.S. —, 138 S. Ct. 2567, 201 L. Ed. 2d 1104, 2018 U.S. LEXIS 4033 (U.S. 2018).

25. Lethal injection, cruel and unusual punishment.

Because Mississippi’s lethal injection protocol appeared to be substantially similar to the protocol that was examined and upheld by the U.S. Supreme Court in Baze v. Rees, 128 S. Ct. 1520, 170 L. Ed. 2d 420 (2008), a defendant’s Eighth Amendment challenge to the lethal injection protocol in Mississippi was without merit. Bennett v. State, 990 So. 2d 155, 2008 Miss. LEXIS 417 (Miss. 2008).

26. – Juvenile detention, cruel and unusual punishment.

Conditions of confinement at a state school for delinquent children which constituted cruel and unusual punishment and which were not conducive to rehabilitation and treatment of the students would be enjoined. Morgan v. Sproat, 432 F. Supp. 1130, 1977 U.S. Dist. LEXIS 16318 (S.D. Miss. 1977), disapproved, Santana v. Collazo, 714 F.2d 1172, 1983 U.S. App. LEXIS 25225 (1st Cir. P.R. 1983).

Commitment of a 16-year-old minor to a state training school until age 20 did not violate constitutional prohibitions against cruel and unusual punishment, where the minor was adjudicated delinquent on the basis of a charge of driving under the influence of alcohol, where at the time of such offense an automobile accident occurred resulting in fatal injuries to a youthful passenger in the car, and where the minor had previously been adjudicated delinquent at age 13 for aiding an escaped felon. Pettit v. State, 351 So. 2d 1353, 1977 Miss. LEXIS 1953 (Miss. 1977).

A municipal or justice of the peace court may sentence a child convicted of a traffic offense to imprisonment in a facility with adults where the child is sentenced to imprisonment under a statute authorizing a jail sentence upon conviction, or where the child, originally fined under an alternative sentencing statute, defaults in the payment of the fine after the failure of reasonable methods designed to aid the child in the payment of the fine. Such imprisonment does not constitute cruel and unusual punishment. Nelson v. Tullos, 323 So. 2d 539, 1975 Miss. LEXIS 1565 (Miss. 1975).

27. – Confinement conditions for inmates, cruel and unusual punishment.

Prisoner’s Eighth Amendment rights were only infringed by extreme deprivation outside the normal bounds of society; the inmate asserted nothing that could possibly have risen to such a level; it was clear that no colorable claim was raised. Hurns v. Miss. Dep't of Corr., 878 So. 2d 223, 2004 Miss. App. LEXIS 162 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 918 (Miss. 2004).

In a capital murder case, the inmate asserted that he had been subjected to cruel and inhuman treatment in violation of his Fifth, Eighth, and Fourteenth Amendment rights because he had been kept in maximum confinement on Mississippi’s death row under conditions that included lock-down and isolation for at least 23 hours of the day and because he had been subjected to numerous execution dates during those 19-20 years; however, there was no law in the United States or Mississippi that supported the inmate’s claim and, thus, there were no grounds for postconviction relief on that issue. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

Defendant’s sentence of 30 years in prison for selling crack cocaine within 1500 feet of a school was not tantamount to cruel and inhuman punishment; there was no evidence that defendant’s sentence was intended as punishment for defendant’s action in exercising the right to a jury trial, nor was there any proof that the length of the sentence was in essence that of a life sentence that was going to subject defendant to unsanitary conditions and physical attacks. Green v. State, 834 So. 2d 724, 2003 Miss. App. LEXIS 8 (Miss. Ct. App. 2003).

The prohibition of cruel and unusual punishment does not apply to the confinement conditions of pretrial detainees. Jackson v. Minich, 1999 U.S. Dist. LEXIS 19632 (N.D. Miss. Nov. 24, 1999).

The court reversed the dismissal of an inmate’s claim for declaratory and injunctive relief from an alleged Eighth Amendment violation and would remand for further proceedings where the inmate alleged (1) that the conditions of his confinement deprived him of cleanliness, sleep, and peace of mind, such conditions including housing in filthy, unsanitary cells, and (2) that he was subjected to frequent searches with no purpose but to harass him. Harper v. Showers, 174 F.3d 716, 1999 U.S. App. LEXIS 9984 (5th Cir. Miss. 1999).

The court erred when it dismissed a prisoner’s complaint which alleged that his Eighth Amendment rights were violated when he was placed in a lockdown and was thereby unable to bathe because he wore a leg brace, required assistance to dress and undress, and could not shower safely without a shower chair. Bradley v. Puckett, 157 F.3d 1022, 1998 U.S. App. LEXIS 27680 (5th Cir. Miss. 1998).

To state violation of Eighth Amendment for denial of humane conditions of confinement, inmate must prove that prison official knew that inmate faced substantial risk of serious harm and disregarded risk by failing to take reasonable measures to abate it. Davis v. City of Greenville, 974 F. Supp. 884, 1997 U.S. Dist. LEXIS 13969 (N.D. Miss. 1997).

Treatment prisoner receives in prison and conditions under which he or she is confined are subject to scrutiny under Eighth Amendment, and accordingly, prison officials must ensure that prisoners receive adequate food, clothing, shelter and medical care, and must take reasonable measures to guarantee their safety. Davis v. City of Greenville, 974 F. Supp. 884, 1997 U.S. Dist. LEXIS 13969 (N.D. Miss. 1997).

Inmates who are placed in administrative segregation have no constitutional basis for demanding the same privileges as those inmates in the general prison population since prison officials have the discretion to determine whether and when to provide prisoners with privileges such as showers, exercise, visitation, and access to personal property. Thus, the 5 hours a week of exercise plus nightly showers of 15 minutes which were provided to an inmate confined to administrative segregation did not constitute cruel and unusual punishment. Additionally, the procedures provided when the inmate was placed in administrative segregation satisfied the due process clause where the inmate received notice of detention and a hearing on the matter. Terrell v. State, 573 So. 2d 730, 1990 Miss. LEXIS 784 (Miss. 1990).

The district court’s findings that the confinement of inmates at the Mississippi State Penitentiary in barracks unfit for human habitation, in conditions that threatened their physical health and safety and deprived them of basic hygiene and medical treatment by reason of gross deficiencies in plant, equipment, and medical staff constituted cruel and unusual punishment, and the relief therein granted, were affirmed. Gates v. Collier, 501 F.2d 1291, 1974 U.S. App. LEXIS 6790 (5th Cir. Miss. 1974).

28. Medical care of inmates.

While the State has a duty under the Eighth Amendment to provide both pretrial detainees and convicted inmates with basic human needs, including medical care, plaintiff failed to establish any Eighth Amendment violation in her wrongful death action against the Mississippi Department of Corrections or a prison superintendent where she failed to establish any “deliberate indifference” on defendants’ part in respect to the treatment of a decedent inmate who died after suffering multiple seizures. Carter v. Miss. Dep't of Corr., 860 So. 2d 1187, 2003 Miss. LEXIS 655 (Miss. 2003), cert. denied, 541 U.S. 959, 124 S. Ct. 1714, 158 L. Ed. 2d 399, 2004 U.S. LEXIS 2392 (U.S. 2004).

Although inadequate medical treatment may, at a certain point, rise to the level of a constitutional violation, malpractice or negligent care does not. Stewart v. Murphy, 174 F.3d 530, 1999 U.S. App. LEXIS 7968 (5th Cir. Tex.), cert. denied, 528 U.S. 906, 120 S. Ct. 249, 145 L. Ed. 2d 209, 1999 U.S. LEXIS 6315 (U.S. 1999).

29. – Solitary confinement, cruel and unusual punishment.

The district court’s findings that the solitary confinement conditions, the administration of corporal punishment, the trusty system as practiced, and the failure to provide adequate protection against physical assaults and abuses by other inmates at the Mississippi State Penitentiary constituted cruel and unusual punishment, and the relief therein granted, were affirmed. Gates v. Collier, 501 F.2d 1291, 1974 U.S. App. LEXIS 6790 (5th Cir. Miss. 1974).

30. – Habitual offenders, cruel and unusual punishment.

Defendant’s effective sentence of 60 years without parole for a drug offense where none of his prior convictions involved crimes of violence was within the statutory guidelines prescribed by the legislature under Miss. Code Ann. §§41-29-147 and99-19-81; additionally, although harsh, defendant’s sentence was not grossly disproportionate to his crime. It was within the legislature’s prerogative to determine that three crimes such as those committed by defendant could result in a sentence of 60 years without parole or chance of early release; thus, defendant’s sentence did not violate the federal or state constitutional prohibitions of cruel and unusual punishment. Tate v. State, 912 So. 2d 919, 2005 Miss. LEXIS 194 (Miss. 2005).

Defendant’s argument that because of its prescribed sentence of life imprisonment without parole, the habitual offender statute, Miss. Code Ann. §99-19-83, was violative of his Eighth Amendment right failed because §99-19-83 was found not to violate one’s Eighth Amendment rights and the length of sentences was properly controlled by the legislature. Forkner v. State, 902 So. 2d 615, 2004 Miss. App. LEXIS 1105 (Miss. Ct. App. 2004), cert. denied, 901 So. 2d 1273, 2005 Miss. LEXIS 345 (Miss. 2005).

No merit to defendant’s argument that his sentence was violative of the Eighth Amendment’s ban on cruel and unusual punishment where defendant’s sentence of life in prison without the possibility of parole was severe, but justified given the State’s public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record. Miles v. State, 864 So. 2d 963, 2003 Miss. App. LEXIS 1039 (Miss. Ct. App. 2003).

Defendant’s 23-year sentence for aggravated assault and possession of a firearm by felon did not constitute cruel and unusual punishment based on the gravity of the offense, the harshness of the penalty under the habitual offender statute, Miss. Code Ann. §99-19-81, and the sentences imposed in Mississippi and other jurisdictions for similar crimes. Everett v. State, 835 So. 2d 118, 2003 Miss. App. LEXIS 4 (Miss. Ct. App. 2003).

Defendant was sentenced to the maximum allowable sentence for selling cocaine because defendant was an habitual offender, having twice previously been convicted of sale of cocaine, and the trial court did not abuse its discretion in sentencing defendant within statutory guidelines; thus, defendant’s right against cruel and unusual punishment guaranteed by the Eighth Amendment was not violated. Green v. State, 856 So. 2d 396, 2003 Miss. App. LEXIS 233 (Miss. Ct. App. 2003), rev'd, in part, 884 So. 2d 733, 2004 Miss. LEXIS 714 (Miss. 2004).

Without waiving the procedural bar to the inmate’s claim that the inmate’s sentence was unconstitutional, the court held that the inmate was properly charged under Miss. Code Ann. §97-9-45; having entered a plea of guilty to the escape, that the sentence of three years was well within the maximum prescribed by the statute, and the inmate was therefore not entitled to postconviction relief; although the inmate was in custody and on a work program in a county at the time of the escape, the inmate was considered to be under the Department’s jurisdiction for purposes of §97-9-45 because (1) the inmate’s original burglary sentence required imprisonment in the “penitentiary” under Miss. Code Ann. §97-17-23, which term meant any facility under the jurisdiction of the Department pursuant to Miss. Code Ann. §47-5-3, (2) commitment to any institution within the jurisdiction of the Department was to the Department, not a particular institution pursuant to Miss. Code Ann. §47-5-110, and (3) under Miss. Code Ann. §47-5-541, the Department recommended rules concerning the participation of inmates in work programs. Gardner v. State, 848 So. 2d 900, 2003 Miss. App. LEXIS 570 (Miss. Ct. App. 2003).

Defendant’s sentence of life in prison without the possibility of parole for possession of cocaine was not grossly disproportionate to the crime, as defendant was a habitual offender who had committed prior felonies, including a crime involving violence. Oby v. State, 827 So. 2d 731, 2002 Miss. App. LEXIS 528 (Miss. Ct. App. 2002).

A 30-year sentence for sale of a controlled substance, which sentence was enhanced on the basis that the defendant was an habitual offender, did not constitute cruel and unusual punishment where (1) the previous convictions of the defendant were acknowledged by the trial judge at the sentencing hearing prior to sentence was imposed, (2) the trial judge also acknowledged that the habitual offender statute was applicable and that he had the discretion to impose the maximum penalty of 30 years, (3) the trial court allowed the defendant to present any evidence he believed would mitigate the sentence that was going to be imposed, and (4) after the presentation of the defendant’s testimony, the court declared that it took no satisfaction in imposing a prolonged sentence, but determined that the testimony of the defendant did not present mitigating circumstances requiring deviation from the statute. Bell v. State, 769 So. 2d 247, 2000 Miss. App. LEXIS 464 (Miss. Ct. App. 2000).

Habitual offender sentence imposed on defendant convicted of possession of cocaine with intent to deliver, requiring defendant to pay $30,000 fine and to serve 30 years without possibility of early parole, was not excessive and did not constitute cruel and unusual punishment: applicable sentencing statute allowed fines of $1,000 to $1 million and prison terms of up to 30 years. Sanders v. State, 678 So. 2d 663, 1996 Miss. LEXIS 300 (Miss. 1996).

In any case in which the imposition of the death penalty is possible, the habitual offender hearing should be held prior to jury deliberations on the death penalty; where a defendant is adjudged to be a habitual offender, the jury should be informed that a life sentence means “life, without probation or parole.” Accurately informing the jury that the alternative to the death penalty is life, without benefit of probation or parole, can only enhance the sentencing process, insuring that excessive punishment shall not be inflicted. Berry v. State, 575 So. 2d 1, 1990 Miss. LEXIS 849 (Miss. 1990), cert. denied, 500 U.S. 928, 111 S. Ct. 2042, 114 L. Ed. 2d 126, 1991 U.S. LEXIS 2673 (U.S. 1991).

A 15-year sentence without hope of parole, imposed upon a defendant as a habitual offender, for uttering a forged check in the amount of $500, did not constitute cruel and unusual punishment. Barnwell v. State, 567 So. 2d 215, 1990 Miss. LEXIS 467 (Miss. 1990).

A defendant’s life imprisonment under the recidivist statute, §99-19-83, after he shoplifted and ate 2 cans of sardines in a store, and then attempted to steal the money to pay for them by breaking into a house, was unduly harsh under an Eighth Amendment cruel and unusual punishment analysis. Ashley v. State, 538 So. 2d 1181, 1989 Miss. LEXIS 24 (Miss. 1989).

The fact that a trial judge lacks sentencing discretion does not necessarily mean the prescribed sentence meets federal constitutional proportionality requirements. Thus, notwithstanding §99-19-81, which requires habitual offenders to be sentenced to a maximum term, the trial court had authority, as a function of the Supremacy Clause, to review a particular sentence in light of constitutional principles of proportionality. Clowers v. State, 522 So. 2d 762, 1988 Miss. LEXIS 94 (Miss. 1988), limited, Barnwell v. State, 1997 Miss. LEXIS 495 (Miss. Oct. 9, 1997), limited, Espinoza v. State, 1998 Miss. App. LEXIS 618 (Miss. Ct. App. July 28, 1998).

Imposition of a life sentence in prison without parole or probation imposed upon defendant who was convicted of child fondling, and who had 2 prior convictions-one for assault with intent to commit sodomy and the other for indecency with a child-did not constitute cruel and unusual punishment. Bandy v. State, 495 So. 2d 486, 1986 Miss. LEXIS 2654 (Miss. 1986).

Sentence of life imprisonment without parole as violent habitual offender imposed upon defendant convicted of burglary of occupied house who has previously been convicted of mayhem and manslaughter is not disproportionate to crime and does not violate Eighth Amendment to United States Constitution. Jackson v. State, 483 So. 2d 1353, 1986 Miss. LEXIS 2383 (Miss. 1986).

Sentence to 20 years imprisonment without reduction, revocation or parole imposed upon defendant convicted of arson and of being habitual criminal is not unconstitutionally excessive where arson conviction is based upon defendant’s having set occupied house on fire at both front and back doors and where defendant has prior convictions for burglary and uttering forgery. Jenkins v. State, 483 So. 2d 1330, 1986 Miss. LEXIS 2395 (Miss. 1986).

Sentencing of defendant, who has entered plea of guilty to charge of capital murder, as habitual offender under §99-19-81, to serve life in prison without parole does not constitute unconstitutional cruel and unusual punishment. Bridges v. State, 482 So. 2d 1139, 1986 Miss. LEXIS 2359 (Miss. 1986).

Defendant was not deprived of his opportunity to be heard on the issue of prior convictions, where he had stipulated that he had been twice convicted of assault and the trial court based its enhanced sentence both on that stipulation and on certified copies of defendant’s prior felony convictions; moreover, §99-19-81 is not unconstitutional and a sentence of ten years for arson where the defendant had prior felony convictions for aggravated assault and assault with intent to commit murder did not violate the Eighth Amendment prohibition against cruel and unusual punishment. King v. State, 451 So. 2d 765, 1984 Miss. LEXIS 1761 (Miss. 1984).

The sentence of 15 years without parole or probation was not disproportionate to the crime, and did not violate defendant’s Eighth Amendment rights, where defendant had been convicted of three non-violent felonies, even though very little money had been involved in the forgery of which he had been convicted. Seely v. State, 451 So. 2d 213, 1984 Miss. LEXIS 1763 (Miss. 1984).

A sentence of life imprisonment without probation or parole for a defendant convicted of carrying a concealed weapon after conviction of a prior felony did not constitute cruel and unusual punishment in violation of the United States and Mississippi Constitutions. Baker v. State, 394 So. 2d 1376, 1981 Miss. LEXIS 1960 (Miss. 1981).

31. Murder and manslaughter.

Sentences that are within the statutory limit are not considered cruel and unusual punishment. Hence, defendant’s 20-year sentence for manslaughter was not excessive; law of Mississippi provides a maximum sentence of 20 years for manslaughter. Robinson v. State, 875 So. 2d 230, 2004 Miss. App. LEXIS 275 (Miss. Ct. App. 2004).

32. Robbery.

Under Miss. Code Ann. §97-3-79 (armed robbery), the trial judge had the authority to impose any sentence but life imprisonment. Thus, defendant’s sentence of 40 years was within the limits prescribed by statute and did not constitute cruel and inhuman treatment; further, the sentence was within the purview of the trial judge to impose, since he had adjudged defendant’s remaining life expectancy to be 42 years. Calhoun v. State, 881 So. 2d 308, 2004 Miss. App. LEXIS 708 (Miss. Ct. App. 2004).

33. Competency of person to be executed.

In a case in which a circuit court judge ruled appellee was intellectually disabled and thus ineligible for the death penalty under the Eighth Amendment, the Supreme Court found no reversible error in admitting an expert’s opinion that appellee’s multiple consistent IQ scores in the intellectually disabled range ruled out the possibility of malingering. State v. Scott, 233 So.3d 253, 2017 Miss. LEXIS 222 (Miss. 2017).

In an appeal of a capital murder conviction and death penalty, defendant, who claimed he was mentally retarded, was not entitled to a remand to the trial court for an evaluation of his mental capacity in light of the U.S. Supreme Court’s ruling in Atkins v. Virginia; testimony from the state’s psychologist indicated that defendant was malingering and that his functioning did not fall within the range of mentally retarded, and because defendant failed to proffer the information necessary to warrant an Atkins hearing, he was not entitled to a reconsideration of his sentence on this issue. Ross v. State, 954 So. 2d 968, 2007 Miss. LEXIS 235 (Miss. 2007).

Where petitioner raped and murdered a 79-year-old victim, the burden was upon petitioner to prove that he was mentally retarded to such an extent as to avoid the death penalty. Where his IQ score of 81 placed him in the category of “low dull normal,” and well above the maximum score for “mild” mental retardation, imposition of the death penalty was not cruel and unusual punishment. Further, the jury instructions given at the sentencing phase, in accordance with Miss. Code Ann. §99-19-101(7), did not violate petitioner’s Eighth Amendment rights since the factors contained in §99-19-101(7) required that the jury find the requisite intent set forth in Enmund and Tison before a death penalty verdict could be returned.. Gray v. State, 887 So. 2d 158, 2004 Miss. LEXIS 1166 (Miss. 2004), cert. denied, 545 U.S. 1130, 125 S. Ct. 2935, 162 L. Ed. 2d 870, 2005 U.S. LEXIS 4905 (U.S. 2005).

34. Batson Challenge.

In a capital murder case, defendant’s Batson challenge was meritless because the prosecution set forth race-neutral reasons for its use of peremptory strikes on African-American jury pool members; a failure to understand the proceedings, service on a prior jury that acquitted, reluctance to serve due to employment, lack of belief in the death penalty, and a failure to complete a jury questionaire were all race-neutral reasons. Le v. State, 913 So. 2d 913, 2005 Miss. LEXIS 151 (Miss.), cert. denied, 546 U.S. 1004, 126 S. Ct. 622, 163 L. Ed. 2d 508, 2005 U.S. LEXIS 8254 (U.S. 2005).

35. Sentence appropriate.

Defendant’s 60-year prison sentence for possession of a controlled substance with intent to sell as a habitual offender was not grossly disproportionate to the crime where defendant was aware of defendant’s own criminal history and chose to proceed to trial; defendant was also apprised of the perilous situation defendant faced if defendant was found guilty at trial. Baskin v. State, 986 So. 2d 338, 2008 Miss. App. LEXIS 12 (Miss. Ct. App.), cert. denied, 987 So. 2d 451, 2008 Miss. LEXIS 562 (Miss. 2008).

Defendant’s death sentence after he was convicted of capital murder, rape, and four counts of sexual battery was appropriate because the circuit court judiciously provided defendant with state-funded investigative assistance in developing mitigation evidence; an order authorizing a criminal defense investigator (CDI) was granted, followed by an order granting additional funds for the CDI, and an order provided a psychological evaluation of defendant was also granted. Loden v. State, 971 So. 2d 548, 2007 Miss. LEXIS 558 (Miss. 2007), cert. denied, 555 U.S. 831, 129 S. Ct. 45, 172 L. Ed. 2d 51, 2008 U.S. LEXIS 6568 (U.S. 2008).

Defendant’s sentence after being convicted of the sale of marijuana within a correctional facility was appropriate because the maximum fine and the minimum sentence that he received were both within the statutory limits of Miss. Code Ann. §47-5-198(3). Jackson v. State, 962 So. 2d 649, 2007 Miss. App. LEXIS 104 (Miss. Ct. App.), cert. denied, 962 So. 2d 38, 2007 Miss. LEXIS 434 (Miss. 2007).

Defendant’s robbery sentence was appropriate pursuant to Miss. Code Ann. §97-3-79 because it was within the statutory limit. Further, it was not grossly disproportionate to the crime of which he was convicted. White v. State, 919 So. 2d 1029, 2005 Miss. App. LEXIS 470 (Miss. Ct. App. 2005).

Amendment IX Construction of enumerated rights

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

RESEARCH REFERENCES

CJS.

C.J.S. Constitutional Law §§ 53 to 57, 444, 445, 460, 619 to 648.

Law Reviews.

The Modalities of the Ninth Amendment: Ways of Thinking About Unenumerated Rights Inspired by Phillip Bobbit’s Constitutional Fate, 75 Miss. L.J. 495, Winter, 2006.

JUDICIAL DECISIONS

1. In general.

Experts who rendered diagnosis of “no mental disorder” for low intelligence quotient for capital murder defendant, after being appointed to perform mental examination of him to determine his competency to stand trial, afforded defendant constitutionally adequate evaluation and furnished constitutionally adequate report. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Section 67-3-13 did not deny a defendant, who was convicted of possession of beer in a “dry” part of the county while traveling home after having legally purchased the beer in a “wet” city, equal protection under the laws and constitution of the State of Mississippi and the Constitution of the United States, nor was there any invasion of the defendant’s constitutional right of privacy. Dantzler v. State, 542 So. 2d 906, 1989 Miss. LEXIS 197 (Miss. 1989).

Amendment X Reserved powers to states

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

RESEARCH REFERENCES

CJS.

C.J.S. States § 53.

JUDICIAL DECISIONS

1. In general.

Under this amendment, underlying control over criminal procedure in state court, dealing with distinctly local offenses such as burglary, remains in state. Odom v. State, 205 Miss. 572, 37 So. 2d 300, 1948 Miss. LEXIS 221 (Miss. 1948), cert. denied, 336 U.S. 932, 69 S. Ct. 747, 93 L. Ed. 1092, 1949 U.S. LEXIS 2611 (U.S. 1949).

The state is sovereign over matters confided or reserved to it by the Tenth Amendment. Tatum v. Wheeless, 180 Miss. 800, 178 So. 95, 1938 Miss. LEXIS 20 (Miss. 1938).

State sovereignty cannot be bargained away or surrendered by the legislature. Tatum v. Wheeless, 180 Miss. 800, 178 So. 95, 1938 Miss. LEXIS 20 (Miss. 1938).

The Federal Social Security Act may name a provision governing the grant of aid or advantages to a State, which is free to accept or reject it, provided it does not infringe the State Constitution or rights reserved in the Tenth Amendment. Tatum v. Wheeless, 180 Miss. 800, 178 So. 95, 1938 Miss. LEXIS 20 (Miss. 1938).

Amendment XI Suits against states

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State.

Editor’s Note —

Proposal and Ratification. This amendment was proposed to the Legislatures of the several States by the Third Congress, on March 4, 1794; and was declared in a message from the President to Congress, dated January 8, 1798, to have been ratified by the legislatures of three-fourths of the States. The States which ratified this amendment, and the dates of ratification are: New York, Mar. 27, 1794; Rhode Island, Mar. 31, 1794; Connecticut, May 8, 1794; New Hampshire, June 16, 1794; Massachusetts, June 26, 1794; Vermont, between Oct. 9 and Nov. 9, 1794; Virginia, Nov. 18, 1794; Georgia, Nov. 29, 1794; Kentucky, Dec. 7, 1794; Maryland, Dec. 26, 1794; Delaware, Jan. 23, 1795; North Carolina, Feb. 7, 1795. Ratification was completed on February 7, 1795.

The amendment was subsequently ratified by South Carolina on December 4, 1797. New Jersey and Pennsylvania did not take action on the amendment.

This amendment was passed in consequence of the decision of Chisholm v Georgia, 2 US 419, 1 L Ed 440 (1793), which held that a state could be sued by a citizen of another state in assumpsit.

Cross References —

Judicial jurisdiction, see Art III, § 2, cl 1, 2.

RESEARCH REFERENCES

ALR.

Immunity of state from civil suits under Eleventh Amendment – Supreme Court cases. 187 A.L.R. Fed. 175.

Am. Jur.

3C Am. Jur. 2d, Aliens and Citizens § 2110.

9A Am. Jur. 2d, Bankruptcy §§ 1523, 1611.

9B Am. Jur. 2d, Bankruptcy § 1720.

15A Am. Jur. 2d, Civil Service §§ 46, 60.

16A Am. Jur. 2d, Constitutional Law §§ 413, 419.

25 Am. Jur. 2d, Elections § 64.

26 Am. Jur. 2d, Elections § 290.

32 Am. Jur. 2d, Federal Courts § 439.

45C Am. Jur. 2d, Job Discrimination § 2065.

46 Am. Jur. 2d, Judgments § 185.

48A Am. Jur. 2d, Labor and Labor Relations § 1461.

57 Am. Jur. 2d, Municipal, County, School, and State Tort Liability § 31.

61C Am. Jur. 2d, Pollution Control § 924.

67B Am. Jur. 2d, Salvage § 63.

72 Am. Jur. 2d, States, Territories, and Dependencies § 106.

77 Am. Jur. Trials, Representing Law Enforcement Officers in Personnel Disputes and Employment Litigation, p. 1.

108 Am. Jur. Proof of Facts 3d, Proof of Public School District Liability for Injuries or Damages to Student Resulting from Harassment of Student by Teacher or Other District Staff Member, p. 1.

CJS.

C.J.S. Federal Courts §§ 124-126, 128-135, 158, 159.

Lawyers’ Edition.

Unconstitutional conduct by state or federal officer as affecting governmental immunity from suit in federal court—Supreme Court cases. 12 L. Ed. 2d 1110. Sovereign immunity of state as applicable to suit by United States. 93 L. Ed. 2d 1095.

Sovereign immunity of state as applicable to suit by United States. 93 L. Ed. 2d 1095.

Supreme Court’s construction of Eleventh Amendment, restricting federal judicial power over suits against states. 106 L. Ed. 2d 660.

Congressional abrogration of states’ immunity, under or as reflected in Federal Constitution’s Eleventh Amendment, from suits in federal court—Supreme Court cases. 144 L. Ed. 2d 869.

Supreme Court’s views concerning waiver by state of its sovereign immunity, under or as reflected in Federal Constitution’s Eleventh Amendment, from suit in federal court. 152 L. Ed. 2d 1155.

Patent infringement under 35 USCS § 271—Supreme Court cases. 162 L. Ed. 2d 977.

Supreme Court’s views as to validity, construction, and application of 28 USCS § 1367, concerning supplemental jurisdiction of federal courts. 162 L. Ed. 2d 1031.

Intervention or joinder of parties in proceeding in Supreme Court under its original jurisdiction. 175 L. Ed. 2d 1145.

Law Reviews.

Meaningful Judicial Review: A Protection of Civil Rights Board of Trustees of the University of Alabama v. Garrett, 22 Miss. C. L. Rev. 101, Fall, 2002.

Recent Decision: Constitutional Law — Eleventh Amendment — Abrogation of States’ Sovereign Immunity in Title II of the Americans with Disabilities Act Held a Valid Exercise of Congress’s Fourteenth Amendment Section Five Power, 74 Miss. L.J. 253, Fall, 2004.

JUDICIAL DECISIONS

1. In general.

2. Local government entities.

3. Instrumentality of state.

4. Class actions.

5. Injunctive relief.

6. Attorney fees.

1. In general.

Notwithstanding Congress’ intent to abrogate Eleventh Amendment immunity in enacting the Age Discrimination in Employment Act, Congress did not act pursuant to constitutional authority and, therefore, the plaintiff’s claim against the Mississippi Department of Transportation for a violation of the ADA was barred by the Eleventh Amendment. Cooley v. Mississippi DOT, 96 F. Supp. 2d 565, 2000 U.S. Dist. LEXIS 7035 (S.D. Miss. 2000), aff'd, 254 F.3d 70, 2001 U.S. App. LEXIS 9803 (5th Cir. Miss. 2001).

The Eleventh Amendment barred a claim against Mississippi for maintaining an unreasonably dangerous intersection where the plaintiff did not even argue for abrogation, and the state’s resistance to the action indicated that it clearly had not consented to suit. Heard v. Kemp, 2000 U.S. Dist. LEXIS 1065 (N.D. Miss. Jan. 25, 2000).

A state university was entitled to immunity on all federal and state law claims, except claims under Title VII, in an action arising from the reassignment of the plaintiff professor’s job duties and the nonrenewal of his employment contract. Gray v. Rent, 1999 U.S. Dist. LEXIS 19631 (N.D. Miss. Nov. 19, 1999).

Officials of a state university were entitled to immunity on all state law claims, but not on federal claims for prospective relief, in an action arising from the reassignment of the plaintiff professor’s job duties and the nonrenewal of his employment contract. Gray v. Rent, 1999 U.S. Dist. LEXIS 19631 (N.D. Miss. Nov. 19, 1999).

The Mississippi Department of Economic and Community Development did not have authority to waive its Eleventh Amendment immunity and consent to suit in federal court. Magnolia Venture Capital Corp. v. Prudential Secs., 151 F.3d 439, 1998 U.S. App. LEXIS 21085 (5th Cir. Miss. 1998), cert. denied, 525 U.S. 1178, 119 S. Ct. 1115, 143 L. Ed. 2d 110, 1999 U.S. LEXIS 1564 (U.S. 1999).

Congress abrogated the states’ Eleventh Amendment immunity from suit under the Age Discrimination in Employment Act, 29 U.S.C.S. §§ 621 et seq., and, therefore, state employers may be sued in federal court under the act. Scott v. University of Mississippi, 148 F.3d 493, 1998 U.S. App. LEXIS 17047 (5th Cir. Miss. 1998).

Mississippi statute requiring state to indemnify and hold harmless a special agent of Tax Commission for any liability arising out of execution of warrant did not waive State’s Eleventh Amendment immunity from suit in federal court; statute contained no unequivocal waiver. Smith v. Luther, 973 F. Supp. 601, 1997 U.S. Dist. LEXIS 13513 (N.D. Miss. 1997).

Claims for prospective relief, such as suits against state officials for declaratory relief, are not deemed to be actions against state for Eleventh Amendment purposes and may be brought against state officials in either their official or individual capacities. Smith v. Luther, 973 F. Supp. 601, 1997 U.S. Dist. LEXIS 13513 (N.D. Miss. 1997).

Order requiring newspaper notice to allow victims named in sealed files of former Mississippi State Sovereignty Commission, which had gathered personal information about Mississippi citizens with purpose of thwarting desegregation, to object to public disclosure of files did not violate Eleventh Amendment but rather would remedy initial constitutional violations when files were made and prevent future violations if personal information about victims were disseminated without their knowledge. ACLU v. Fordice, 969 F. Supp. 403, 1994 U.S. Dist. LEXIS 21108 (S.D. Miss. 1994), aff'd, 84 F.3d 784, 1996 U.S. App. LEXIS 14555 (5th Cir. Miss. 1996).

In an action for wrongful death against the State of Mississippi, the Mississippi State Highway Commission, and several officials and employees of the Commission in their official and individual capacities, the district court properly dismissed the complaint against the state and the Commission based on the Eleventh Amendment; however, the court erred in finding that the officers and employees of the Commission could invoke the absolute protection of the amendment. Congress has not abrogated Mississippi’s immunity through enactment of the Bridge Act of 1906 and the Rivers and Harbors Appropriations Act. Karpovs v. Mississippi, 663 F.2d 640, 1981 U.S. App. LEXIS 15286 (5th Cir. Miss. 1981).

Suit for damages against Mississippi Game and Fish Commission under 42 USCS §§ 1981 and 1983 was barred by the Eleventh Amendment. Clifton v. Grisham, 381 F. Supp. 324, 1974 U.S. Dist. LEXIS 7063 (N.D. Miss. 1974).

The state was immune from suit under 42 USCS § 1983 seeking recovery of damages for deaths and injuries allegedly caused by state police officers. Burton v. Waller, 502 F.2d 1261, 1974 U.S. App. LEXIS 6442 (5th Cir. Miss. 1974), cert. denied, 420 U.S. 964, 95 S. Ct. 1356, 43 L. Ed. 2d 442, 1975 U.S. LEXIS 847 (U.S. 1975).

Under this section, a state cannot be sued. Stone v. Interstate Natural Gas Co., 103 F.2d 544, 1939 U.S. App. LEXIS 3610 (5th Cir. Miss.), aff'd, 308 U.S. 522, 60 S. Ct. 292, 84 L. Ed. 442, 1939 U.S. LEXIS 16 (U.S. 1939).

2. Local government entities.

An action against a county department of human services was barred by the Eleventh Amendment since the county department was an arm of the state and a non-autonomous division of the Mississippi Department of Human Services and was primarily funded by the state. C.A. v. Lowndes County Dep't of Family & Children Servs., 93 F. Supp. 2d 744, 2000 U.S. Dist. LEXIS 3789 (N.D. Miss. 2000).

Federal District Court had power to decide case where weighing of all relevant factors pointed away from Eleventh Amendment immunity for Levee Board. Among others, factors relevant to determination of whether Eleventh Amendment protection is proper are: (1) most significant factor in assessing entity’s status is whether judgment against it will be paid with state funds, and judgment against Levee Board could be satisfied from board itself; (2) entity had authority to sue and be sued in its own name, and (3) board had right to hold and use property. McDonald v. Board of Mississippi Levee Comm'rs, 832 F.2d 901, 1987 U.S. App. LEXIS 15499 (5th Cir. Miss. 1987).

The Rankin County school system is a locally controlled institution which is supported largely by local revenues and, therefore, the Eleventh Amendment does not bar the award of back pay to teachers who were reinstated pursuant to the district court’s order in a school desegregation case. Adams v. Rankin County Bd. of Education, 524 F.2d 928, 1975 U.S. App. LEXIS 11706 (5th Cir. Miss. 1975), cert. denied, 438 U.S. 904, 98 S. Ct. 3121, 57 L. Ed. 2d 1146, 1978 U.S. LEXIS 2365 (U.S. 1978).

3. Instrumentality of state.

State board of medical licensure is instrumentality of state amounting to alter ego such that suit against board by state citizen is precluded by Eleventh Amendment immunity provisions; executive officer of board was protected by qualified immunity in release of information concerning plaintiff physician to hospital because physician executed release for information. Williams v. Morgan, 710 F. Supp. 1080, 1989 U.S. Dist. LEXIS 4012 (S.D. Miss. 1989).

4. Class actions.

Although an action alleging discriminatory distribution of gasoline and other excise tax funds among the several counties of the State of Mississippi is not violative of the Eleventh Amendment to the U. S. Constitution, a class action to that effect brought by citizens and taxpayers is not an action brought by the real parties in interest, for such parties have no personal interest or personal benefit in the recovery sought. Schaeffer v. Sharp, 328 F. Supp. 762, 1971 U.S. Dist. LEXIS 12568 (S.D. Miss. 1971).

5. Injunctive relief.

The Eleventh Amendment does not shield state officials acting in their official capacities from injunctive relief. Limeco, Inc. v. Division of Lime of Mississippi Dep't of Agriculture & Commerce, 546 F. Supp. 868, 1982 U.S. Dist. LEXIS 14626 (N.D. Miss. 1982).

Suit against the State of Mississippi in the Federal Courts for an injunction against the levy of a tax under an alleged unconstitutional statute is precluded by this Amendment. Stone v. Interstate Natural Gas Co., 103 F.2d 544, 1939 U.S. App. LEXIS 3610 (5th Cir. Miss.), aff'd, 308 U.S. 522, 60 S. Ct. 292, 84 L. Ed. 442, 1939 U.S. LEXIS 16 (U.S. 1939).

A suit by a state in its sovereign capacity or through its authorized officers may not be enjoined by the Federal courts. Robertson v. H. Weston Lumber Co., 124 Miss. 606, 87 So. 120, 1920 Miss. LEXIS 547 (Miss. 1921).

6. Attorney fees.

Plaintiffs were not entitled to attorney fees in a suit against the Department of Public Safety, alleging discriminatory hiring practices with regard to highway patrolmen and other personnel, since the Department was not guilty of bad faith, it was in any case an alter ego of the state and thus immune by virtue of the 11th Amendment, and officials for the Department were acting in their official capacity and were, accordingly, also immune under the 11th Amendment. Morrow v. Dillard, 412 F. Supp. 494, 1976 U.S. Dist. LEXIS 15797 (S.D. Miss. 1976), aff'd in part and rev'd in part, 580 F.2d 1284, 1978 U.S. App. LEXIS 8724 (5th Cir. Miss. 1978).

Plaintiffs in a class action suit challenging the constitutionality of a statute (at the inception of litigation, Miss. Code Anno. §§ 6634 et seq. (1942), now Miss. Code Anno. §§37-43-3 et seq. [repealed]) providing for distribution by the state of free textbooks to private as well as public schools were entitled to an award of attorney fees against the state, following remand of the case by the United States Supreme Court to the District Court with instructions to determine private school eligibility for free books according to whether or not the schools were segregated, and such award of attorney fees, made pursuant to federal statute, had only an ancillary effect on the state treasury, and was not barred by the Eleventh Amendment to the United States Constitution. Norwood v. Harrison, 410 F. Supp. 133, 1976 U.S. Dist. LEXIS 16365 (N.D. Miss. 1976).

Amendment XII Presidential electors

The electors shall meet in their respective States, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; – The President of the Senate shall, in presence of the Senate and House of representatives, open all the certificates and the votes shall then be counted; – The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President shall be the Vice-President, if such number be a majority of the whole number of electors appointed, and if no person have a majority, then from the two highest numbers on the list, the senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Editor’s Note —

This Amendment was affected by the Twentieth Amendment.

Proposal and Ratification. The Twelfth Amendment, set out in 2 Stat. 306, was proposed to the legislatures of the several States by the Eighth Congress, on December 9, 1803, and was declared in a proclamation of the Secretary of State, dated September 25, 1804, to have been ratified by the legislatures of three-fourths of the States. It supersedes Article 2, section 1, clause 3. Ratification by the States was accomplished as follows: North Carolina, December 22, 1803; Maryland, December 24, 1803; Kentucky, December 27, 1803; Ohio, between December 5 and December 30, 1803; Virginia, between December 20, 1803, and February 3, 1804; Pennsylvania, January 5, 1804; Vermont, January 30, 1804; New York, February 10, 1804; New Jersey, February 22, 1804; Rhode Island, between February 27 and March 12, 1804; South Carolina, May 15, 1804; Georgia, May 19, 1804; New Hampshire, June 15, 1804; and Tennessee, July 27, 1804. The States of Delaware and Connecticut rejected this amendment on January 18, 1804 and May 10, 1804, respectively. Massachusetts rejected this amendment on February 3, 1804 and subsequently ratified it in 1961.

Cross References —

Termination of terms of office, see USCS Const Amend XX, § 1.

When Vice President is to act as President, see USCS Const Art II, § 1(5), Amend XX, § 3, Amend XXV.

RESEARCH REFERENCES

ALR.

Challenges to Presidential Electoral College and Electors. 20 A.L.R. Fed 2d 183.

Am. Jur.

16A Am. Jur. 2d, Constitutional Law § 419.

26 Am. Jur. 2d, Elections § 207.

77 Am. Jur. 2d, United States § 17.

CJS.

C.J.S. United States § 46.

Lawyers’ Edition.

Supreme Court’s construction and application of federal constitutional provisions (Art II, § 1, cl 2, 4; Amendments 12, 23) concerning appointment of, or voting by, Presidential electors. 148 L. Ed. 2d 1087.

JUDICIAL DECISIONS

1. In general.

The provisions of Code 1942 § 3107 which provide a method whereby the state political party conventions may select two slates of presidential electors, one slate pledged to support the nominee of the national political party, and one slate unpledged offends no provision of the United States Constitution, for this section expressly provides that nothing therein shall prohibit a slate of electors pledged to support the national party candidate from running on the same general election ballot, and Code 1942 § 3260 enables such a slate to get on the ballot upon the petition of 1,000 voters. Gray v. Mississippi, 233 F. Supp. 139, 1964 U.S. Dist. LEXIS 7357 (N.D. Miss. 1964).

Amendment XIII Slavery abolished; enforcement

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Editor’s Note —

Proposal and Ratification. This amendment was proposed to the legislatures of the several States by the Thirty-eighth Congress, on January 31, 1865, and was declared, in a proclamation of the Secretary of State, dated December 18, 1865, to have been ratified by the legislatures of twenty-seven of the thirty-six States. The States which ratified this amendment, and the dates of ratification, are: Illinois, Feb. 1, 1865; Rhode Island, Feb. 2, 1865; Michigan, Feb. 2, 1865; Maryland, Feb. 3, 1865; New York, Feb. 3, 1865; Pennsylvania, Feb. 3, 1865; West Virginia, Feb. 3, 1865; Missouri, Feb. 6, 1865; Maine, Feb. 7, 1865; Kansas, Feb. 7, 1865; Massachusetts, Feb. 7, 1865; Virginia, Feb. 9, 1865; Ohio, Feb. 10, 1865; Indiana, Feb. 13, 1865; Nevada, Feb. 16, 1865; Louisiana, Feb. 17, 1865; Minnesota, Feb. 23, 1865; Wisconsin, Feb. 24, 1865; Vermont, Mar. 9, 1865; Tennessee, Apr. 7, 1865; Arkansas, Apr. 14, 1865; Connecticut, May 4, 1865; New Hampshire, July 1, 1865; South Carolina, Nov. 13, 1865; Alabama, Dec. 2, 1865; North Carolina, Dec. 4, 1865, and Georgia, Dec. 6, 1865.

The Legislatures of the following States ratified this amendment after Dec. 6, 1865; Oregon, Dec. 8, 1865; California, Dec. 19, 1865; Florida, Dec. 28, 1865 (Florida again ratified on June 9, 1868, upon its adoption of a new constitution); Iowa, Jan. 15, 1866; New Jersey, Jan. 23, 1866; Texas, Feb. 18, 1870, Delaware, Feb. 12, 1901; Kentucky, Mar. 18, 1976, and Mississippi, Mar. 16, 1995.

RESEARCH REFERENCES

ALR.

Court appointment of attorney to represent, without compensation, indigent in civil action. 52 A.L.R.4th 1063.

Purposeful inclusion of Negroes in grand or petit jury as unconstitutional discrimination. 4 A.L.R. Fed. 449.

Am. Jur.

16A Am. Jur. 2d, Constitutional Law §§ 222, 419.

17 Am. Jur. 2d, Contempt § 209.

45 Am. Jur. 2d, Involuntary Servitude and Peonage §§ 8, 11.

67B Am. Jur. 2d, Schools § 287.

CJS.

C.J.S. Peonage §§ 3 to 5.

C.J.S. Slaves § 10.

Lawyers’ Edition.

Race discrimination. 3 L. Ed. 2d 1556, 6 L. Ed. 2d 1302, 10 L. Ed. 2d 1105, 15 L. Ed. 2d 990, 21 L. Ed. 2d 915.

Validity, construction, and application of federal civil rights statute dealing with property rights of citizens (42 USCS § 1982). 20 L Ed. 2d 1768.

What provisions of the Federal Constitution’s Bill of Rights are applicable to the states. 23 L. Ed. 2d 985.

Supreme Court’s views as to application or applicability of doctrine of qualified immunity in action under 42 USCS § 1983, or in Bivens action, seeking damages for alleged civil rights violations. 116 L. Ed. 2d 965.

Racial discrimination in connection with transfer or ownership of real property or interest therein—Supreme Court cases. 154 L. Ed. 2d 1193.

JUDICIAL DECISIONS

1. In general.

2. Involuntary servitude.

3. Employment discrimination.

4. Educational institutions.

1. In general.

Mother’s assertions were without merit that by attempting to force her into the foster care system with her newborn, and by threatening to withhold contact with the child, the Department of Human Services subjected her to unconstitutional involuntary servitude in violation Miss. Const. Art. III, § 15 and U.S. Const. Amend. XIII; in every case in which the supreme court found a condition of in voluntary servitude, the victim had no available choice but to work or be subject to legal sanction. In the Interest of C.B.Y., 936 So. 2d 974, 2006 Miss. App. LEXIS 617 (Miss. Ct. App. 2006).

A law relating to hiring a renter or laborer having a contract with another must be construed consistently with this provision. Hill v. Duckworth, 155 Miss. 484, 124 So. 641, 1929 Miss. LEXIS 315 (Miss. 1929).

2. Involuntary servitude.

In a sale of marijuana case, defendant was not entitled to be set free based on the State’s alleged improper conduct in threatening imprisonment if defendant did not work as an undercover informant, as the evidence showed that defendant had voluntarily agreed to become an informant and had never actually performed any act as an informant. Poole v. State, 862 So. 2d 1285, 2004 Miss. App. LEXIS 26 (Miss. Ct. App. 2004).

An agreement by one accused of selling marijuana to work as an undercover informant in return for a sentence recommendation by the district attorney of probation did not constitute a violation of the constitutional prohibition against involuntary servitude. Clark v. State, 389 So. 2d 485, 1980 Miss. LEXIS 2340 (Miss. 1980).

Involuntary servitude is unconstitutionally imposed by a statute punishing a laborer, share-cropper or renter who, having made one contract in writing, enters into another without giving notice of the first. State v. Armstead, 103 Miss. 790, 60 So. 778 (1913), Am. Ann. Cas. 1915B, 495.

3. Employment discrimination.

An employment discrimination action alleging that plaintiff employee had been discharged because of his race did not state a claim under the Thirteenth Amendment where there was no allegation that defendant defendant employer had imposed conditions comparable to involuntary servitude upon its employees and where no such inference could be drawn from a charge of discriminatory conduct by the employer. Jordan v. Lewis Grocer Co., 467 F. Supp. 113, 1979 U.S. Dist. LEXIS 13478 (N.D. Miss. 1979).

4. Educational institutions.

Actions on part of state officials conclusively demonstrated they were fulfilling their affirmative duty to disestablish former dejure segregated system of higher education by adopting race-neutral policies and procedures in areas of student administration and recruitment, faculty and staff hiring, and resource allocation; they had also undertaken substantial affirmative efforts in areas of other-race student and faculty-staff recruitment, funding, and facility allocation. Differentiations made by officials with respect to each of individual institutions in designation of institutional missions were reasonable and not motivated by discriminatory purpose. Ayers v. Allain, 674 F. Supp. 1523, 1987 U.S. Dist. LEXIS 11692 (N.D. Miss. 1987), rev'd, 893 F.2d 732, 1990 U.S. App. LEXIS 1414 (5th Cir. Miss. 1990), aff'd, 914 F.2d 676, 1990 U.S. App. LEXIS 17182 (5th Cir. Miss. 1990), vacated, 970 F.2d 1378, 1992 U.S. App. LEXIS 19122 (5th Cir. Miss. 1992).

The restraint incident to the proper education and discipline of children is not within the constitutional prohibition of involuntary servitude. Bryant v. Brown, 151 Miss. 398, 118 So. 184, 1928 Miss. LEXIS 315 (Miss. 1928).

Amendment XIV Citizenship; privileges and immunities; due process; equal protection; apportionment of representation; disqualification of officers; public debt; enforcement

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an Executive or Judicial Officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Editor’s Note —

Proposal and Ratification. This amendment was proposed to the Legislatures of the several States by the Thirty-ninth Congress, on June 13, 1866. On July 21, 1868, Congress adopted and transmitted to the Department of State a concurrent resolution, declaring that “the Legislatures of the States of Connecticut, Tennessee, New Jersey, Oregon, Vermont, New York, Ohio, Illinois, West Virginia, Kansas, Maine, Nevada, Missouri, Indiana, Minnesota, New Hampshire, Massachusetts, Nebraska, Iowa, Arkansas, Florida, North Carolina, Alabama, South Carolina, and Louisiana, being three-fourths and more of the several States of the Union, have ratified the fourteenth article of amendment to the Constitution of the United States, duly proposed by two-thirds of each House of the Thirty-ninth Congress: Therefore, Resolved, That said fourteenth article is hereby declared to be a part of the Constitution of the United States, and it shall be duly promulgated as such by the Secretary of State.” The Secretary of State accordingly issued a proclamation, dated July 28, 1868, declaring that the proposed fourteenth amendment had been ratified by the Legislatures of thirty of the thirty-six States. The amendment was ratified by the State Legislatures on the following dates: Connecticut, June 25, 1866; New Hampshire, July 6, 1866; Tennessee, July 19, 1866; New Jersey, Sept. 11, 1866; Oregon, Sept. 19, 1866; Vermont, Oct. 30, 1866; Ohio, Jan. 4, 1867; New York, Jan. 10, 1867; Kansas, Jan. 11, 1867; Illinois, Jan. 15, 1867; West Virginia, Jan. 16, 1867; Michigan, Jan. 16, 1867; Minnesota, Jan. 16, 1867; Maine, Jan. 19, 1867; Nevada, Jan. 22, 1867; Indiana, Jan. 23, 1867; Missouri, Jan. 25, 1867; Rhode Island, Feb. 7, 1867; Wisconsin, Feb. 7, 1867; Pennsylvania, Feb. 12, 1867; Massachusetts, Mar. 20, 1867; Nebraska, June 15, 1867; Iowa, Mar. 16, 1868; Arkansas, Apr. 6, 1868; Florida, June 9, 1868; North Carolina, July 4, 1868; Louisiana, July 9, 1868; South Carolina, July 9, 1868; Alabama, July 13, 1868; Georgia, July 21, 1868. Subsequent to the proclamation the following States ratified this amendment: Virginia, Oct. 8, 1869; Mississippi, Jan. 17, 1870; Texas, Feb. 18, 1870; Delaware, Feb. 12, 1901; Maryland, Apr. 4, 1959; California, May 6, 1959; and Kentucky, Mar. 18, 1976.

The Fourteenth Amendment originally was rejected by Delaware, Georgia, Louisiana, North Carolina South Carolina, Texas and Virginia. However, the State Legislatures of the aforesaid States subsequently ratified the amendment on the dates set forth in the preceding paragraph. Kentucky and Maryland rejected this amendment on Jan. 10, 1867 and Mar. 23, 1867, respectively.

The States of New Jersey, Ohio and Oregon “withdrew” their consent to the ratification of this amendment on Mar. 24, 1868, Jan. 15, 1868, and Oct. 15, 1868, respectively.

The State of New Jersey expressed support for this amendment on Nov. 12, 1980.

Cross References —

Regulation of commerce, generally, Constitution, Art. I, § 8, cl. 3.

Powers denied states, generally, Constitution, Art. I, § 10.

States as prohibited from passing bills of attainder, ex post facto laws, or laws impairing obligation of contracts, Constitution, Art. I, § 10, cl. 1.

Full faith and credit, generally, Constitution, Art. IV, § 1.

Citizens of each state as entitled to privileges and immunities of citizens of the several states, Constitution, Art. IV, § 2, cl. 1.

Freedom of religion, speech, and press; right to assemble or petition, Constitution, Amendment 1.

Right to be secure against unreasonable searches and seizures; warrants, Constitution, Amendment 4.

Presentment or indictment of grand jury; double jeopardy; self-incrimination; just compensation for private property taken for public use, Constitution, Amendment 5.

Right to speedy and public trial by impartial jury of state and district wherein crime is committed; right to be informed of nature and cause of accusation; right to compulsory process; right to assistance of counsel, Constitution, Amendment 6.

Right to jury trial in civil cases, generally, Constitution, Amendment 7.

Cruel and unusual punishment; excessive bail or fines, Constitution, Amendment 8.

Prohibition of slavery and involuntary servitude, generally, Constitution, Amendment 13.

Right to vote as not precludable on account of race or color, generally, Constitution, Amendment 15.

Right to vote as not precludable on account of sex, Constitution, Amendment 19.

RESEARCH REFERENCES

ALR.

Freedom of speech and press as limitation on power to punish for contempt. 159 ALR 1379.

Damage to private property caused by negligence of governmental agents as “taking,” “damage,” or “use” for public purposes, in constitutional sense. 2 A.L.R.2d 677.

Restrictive covenants, conditions, or agreements in respect of real property discriminating against persons on account of race, color, or religion. 3 ALR2d 466.

Due process of law: provision forbidding making membership in labor organization a condition to employment. 6 ALR2d 492.

Regulation of practice of photography. 7 ALR2d 416.

Garage as part of house with which it is physically connected within zoning regulations or restrictive covenant. 7 ALR2d 593.

Zoning based on size of commercial or industrial enterprises or units. 7 ALR2d 1007.

Validity of statute, ordinance, or regulation forbidding granting of exclusive rights or franchises to, or abolishing existing exclusive rights secured pursuant to outstanding permits for, taxicab or hack stands. 8 ALR2d 574.

Validity of building height regulations. 8 ALR2d 963.

Exclusion from municipality of industrial activities inconsistent with residential character. 9 ALR2d 683.

Zoning: change in ownership of nonconforming business or use as affecting right to continuance thereof. 9 ALR2d 1039.

Constitutionality, construction, and application of statutory provisions respecting persons who may prepare tax returns for others. 10 ALR2d 1443.

Validity and construction or regulations as to subdivision maps or plats. 11 ALR2d 524.

Constitutionality, construction, and application of statute relating to dental hygienists. 11 ALR2d 724.

What constitutes such discriminatory prosecution or enforcement of laws as to provide valid defense in state criminal proceedings. 95 ALR3d 280.

Validity of statutory classifications based on population – government employee salary or pension statutes. 96 ALR3d 538.

Validity of statutory classifications based on population – jury selection statutes. 97 ALR3d 434.

Validity of statutory classifications based on population – zoning, building, and land use statutes. 98 ALR3d 679.

Validity of statutory classifications based on population – tax statutes. 98 ALR3d 1083.

Constitutionality of gender-based classifications in criminal laws proscribing nonsupport of spouse or child. 14 ALR4th 717.

Right of jailed or imprisoned parent to visit from minor child. 15 ALR4th 1234.

Oral communications insulting to particular state judge, made to third party out of judge’s physical presence, as criminal contempt. 30 ALR4th 155.

What constitutes employment discrimination on basis of “marital status” for purposes of state civil rights laws. 44 ALR4th 1044.

Inverse condemnation state court class actions. 49 ALR4th 618.

Court appointment of attorney to represent, without compensation, indigent in civil action. 52 ALR4th 1063.

Validity, construction, and application of statutes or ordinances involved in prosecutions for transmission of wagers or wagering information related to bookmaking. 53 ALR4th 801.

Failure of state prosecutor to disclose exculpatory medical reports and tests as violating due process. 101 A.L.R.5th 197.

Failure of state prosecutor to disclose pretrial statement made by crime victim as violating due process. 102 A.L.R.5th 327.

Federal and state constitutional provisions and state statutes as prohibiting employment discrimination based on heterosexual conduct or relationship. 123 A.L.R.5th 411.

When Does Use of Taser Constitute Violation of Constitutional Rights. 45 A.L.R.6th 1.

Referendum relating to lower-or- moderate-income housing projects as constituting racial discrimination under federal constitution. 15 ALR Fed 613.

Mandatory maternity leave rules or policies for public school teachers as constituting violation of equal protection clause of Fourteenth Amendment to federal constitution.17 ALR Fed 768.

Construction and application of § 902 of Civil Rights Act of 1964 (42 USCA § 2000h-2) authorizing United States to intervene in private action for relief from denial of equal protection of laws under Fourteenth Amendment on account of race, color, religion, sex, or national origin. 19 ALR Fed 623.

Diluting effect of minorities’ votes by adoption of particular election plan, or gerrymandering of election district, as violation of equal protection clause of Federal Constitution. 27 ALR Fed 29.

Tenants’ rights, under due process clause of Federal Constitution, to notice and hearing prior to imposition of higher rents or additional service charges for government-owned or government-subsidized housing. 28 ALR Fed 739.

Action of private institution of higher education as constituting state action, or action under color of law, for purposes of Fourteenth Amendment and 42 USCS § 1983. 37 ALR Fed 601.

Refusal to hire, or dismissal from employment, on account of plaintiffs sexual lifestyle or sexual preference as violation of Federal Constitution or federal civil rights statutes. 42 ALR Fed 189.

Exclusion of women from employment involving risk of fetal injury as violative of title VII of Civil Rights Act of 1964 (42 USCA §§ 2000e et seq.). 66 ALR Fed 968.

Propriety of federal court’s exclusion of public from criminal or civil trial in order to protect trade secrets. 69 ALR Fed 892.

What constitutes “an opportunity for full and fair litigation” in state court precluding habeas corpus review under 28 USCA § 2254 in federal court of state prisoner’s Fourth Amendment claims. 75 ALR Fed 9.

Inequalities in population of election districts or voting units, other than districts or units for election to congress or state or territorial offices, as rendering apportionment violative of federal constitution–post-Baker cases. 143 A.L.R. Fed. 631.

What constitutes reverse or majority race or national origin discrimination violative of Federal Constitution or statutes–nonemployment cases.

What constitutes reverse or majority gender discrimination against males violative of Federal Constitution or statutes–public employment cases.

What constitutes reverse or majority race or national origin discrimination violative of federal constitution or statutes – public employment cases.

Am. Jur.

16A Am Jur 2d, Constitutional Law §§ 466 et seq.

CJS.

Constitutional Law §§ 455, 462 to 464, 466 to 467, 470, 501, 503, 513, 518, 540, 557, 576 to 581, 585, 587, 596, 612, 614 to 618, 700 to 762, 764 to 773, 775 to 791, 793 to 984, 986 to 1065, 1067 to 1177, 1179 to 1208, 1210 to 1427.

Right to Die § 2.

States §§ 9, 10, 11.

United States §§ 16, 17, 19, 153, 156, 158.

Lawyers’ Edition.

Right under the Federal Constitution of indigent defendant in criminal case to aid of state as regards appeal or post-conviction remedy. 21 L Ed 2d 879.

Fourteenth Amendment as affecting nomination or election to state office. 23 L Ed 2d 782.

Validity, under Federal Constitution, of criminal statute or ordinance making one fact presumptive or prima facie evidence of another. 23 L Ed 2d 812.

Effective assistance of counsel on first appeal as of right held guaranteed by due process clause of fourteenth amendment. 80 L Ed 2d 821.

State statute requiring notaries public to be United States citizens held violative of equal protection clause of Fourteenth Amendment. 81 L Ed 2d 175.

Federal constitutional right to marry. – Supreme Court cases. 96 L Ed 2d 716.

Notice by publication as sufficient to comply with due process requirements under Federal Constitution’s Fourteenth Amendment – Supreme Court cases. 99 L Ed 2d 1029.

Necessity and sufficiency of service of process under due process clause of Federal Constitution’s Fourteenth Amendment – Supreme Court cases. 100 L Ed 2d 1015.

State regulation of appellate procedure in civil case as violating equal protection clause of Federal Constitution’s Fourteenth Amendment-Supreme Court cases. 100 L Ed 2d 947.

Supreme court’s views as to validity, under due process clause of federal constitution’s fourteenth amendment, of prejudgment attachment, garnishment, replevin or similar procedures. 115 L Ed 2d 1123.

State venue provisions for civil actions as violating equal protection clause of federal constitution’s fourteenth amendment – supreme court cases. 119 L Ed 2d 665.

Supreme court’s views as to validity, under due process clause, of federal constitution’s 14th amendment, of state provisions concerning accused’s competence to stand trial. 120 L Ed 2d 1037.

Law Reviews.

Cartwright, Death on a whim: jury discretion and “Especially Heinous” crimes. 9 Miss College L R 357, Spring 1989.

1989 Mississippi Supreme Court Review: 14th Amendment. 59 Miss L J 845, Winter, 1989.

Neville, The Equal Protection Clause and the Erosion of the Theoretical Foundations of Bicameralism. 56 Miss U 157, April, 1986.

Moore, M.L.B. v. S.L.J.: Extension of in forma pauperis Appeals to the Civil Arena in Termination of Parental Rights Cases. 18 Miss. College L. R. 19, Fall, 1997.

McDuff, M.L.B. v. S.L.J. and the Right of Poor People to Go to Court. 18 Miss. College L. R. 5, Fall, 1997.

Bryan, Recent Decisions: Constitutional Law–United States Supreme Court Places Limits on Punitive Damages. 66 Miss. L. J. 235, Fall, 1996.

Hoffheimer, Mississippi Conflict of Laws. 67 Miss. L. J. 175, Fall, 1997.

Recent Decision: Constitutional Law–Fourteenth Amendment–State Anti-Sodomy Laws as Applied to Consensual Homosexual Activity in the Privacy of the Home Held Unconstitutional, 73 Miss. L.J. 323, Fall, 2003.

Meaningful Judicial Review: A Protection of Civil Rights Board of Trustees of the University of Alabama v. Garrett, 22 Miss. C. L. Rev. 101, Fall, 2002.

Securing Liberty with Chains: Locking up the Fifth Amendment within the Confines of Miranda: Dickerson v. United States, 530 U.S. 428(2000), 21 Miss. C. L. Rev. 55, Fall, 2001.

Recent Decision: Constitutional Law — Eleventh Amendment — Abrogation of States’ Sovereign Immunity in Title II of the Americans with Disabilities Act Held a Valid Exercise of Congress’s Fourteenth Amendment Section Five Power, 74 Miss. L.J. 253, Fall, 2004.

Constitutional Limits on State Taxation of a Nonresident Trustee: Gavin Misinterprets and Misapplies Both Quill and McCulloch, 76 Miss. L.J. 1, Fall, 2006.

Practice References.

Young, Trial Handbook for Mississippi Lawyers §§ 2:10, 6:6, 4:9, 9:13, 14:16-14:18, 26:3-26:5.

JUDICIAL DECISIONS

1. Construction and application.

2. Constitutionality.

3. State action.

4. Private Action.

5. Remedy at law.

6. Police powers.

7. Property interest.

8. Rules of court.

9. Sovereign immunity.

10. Taking without compensation.

11. Validity of statutes, generally.

12. Validity of ordinance, generally.

13. Equal protection – In general.

14. – Classification, equal protection.

15. – Validity of statutes, equal protection.

16. Due process –In general.

17. – Substantive due process.

18. – Procedural due process.

19. – Rights of indigent defendant, due process.

20. – Validity of statutes, due process.

20.5. Vindictiveness of judge.

22. Due process – In general.

22. Prosecutorial misconduct.

23. Freedom of speech and press.

24. Alcoholic beverages.

25. Antitrust laws.

26. Banks and banking.

27. Bidders for public contracts.

28. Bonds.

29. Bulk sales.

30. Children, generally.

31. Child custody and adoption.

32. Child support.

33. Civil rights.

34. Civil service.

35. Colleges and universities.

36. Contracts.

37. Corporations.

38. Creditor’s remedies.

39. Criminal offenses.

40. Elections–In general.

41. –Apportionment and districts, elections.

42. – Bond elections.

43. Fish and game laws.

44. Fraternal organizations.

45. Insurance.

46. Laborers and materialmen.

47. Labor and employment.

48. Municipal or local services.

49. Nuisance.

50. Parolees and probationers.

51. Prisoners.

53. Professional regulation.

54. Public health.

55. Public improvements.

56. Railroads – In general.

57. – Abolishing fellow-servant rule, railroads.

58. – Creating presumption of negligence, railroads.

59. Roads and highways.

60. Schools and school districts – In general.

61. – Teacher employment and termination, schools and school districts.

62. – Student conduct and discipline, schools and school districts.

63. – Sports and athletic programs, schools and school districts.

64. – Prayer and meditation, schools and school districts.

65. Taxation –In general.

66. – Chain store tax.

67. – Income taxes.

68. – Inheritance taxes.

69. – Privilege taxes generally.

70. – Property taxes.

71. – Motor vehicle taxes.

72. – Gross receipts tax.

73. – Sales and use taxes.

74. – Tobacco taxation.

75. – Insurance companies, taxation.

76. – Railroads and other carriers, taxation.

77. – Tax sales and enforcement, taxation.

78. Unemployment compensation.

78. Warranty law.

79. Welfare laws.

80. Workers’ compensation.

81. Zoning.

81.5 - Race-neutral exercise of peremptory challenges, impartial jury

82. Racial discrimination – In general.

83. – Clubs and associations, racial discrimination.

84. – Segregation of facilities or discontinuance of services, racial discrimination.

85. – Jury list, racial discrimination.

86. – Jury selection, racial discrimination.

87. – Race-neutral exercise of per-emptory challenges, impartial jury.

88. – Voting rights, racial discrimination.

89. – Election districts, racial discrimination.

90. – Schools and school districts, racial discrimination.

91. – Correctional facilities, racial discrimination.

92. Administrative proceedings.

93. Civil practice and procedure – In general.

94. – Venue, civil practice and procedure.

95. –Long arm jurisdiction, civil practice and procedure.

96. – Summons or legal appearance, civil practice and procedure.

97. – Service of process, civil practice and procedure.

98. – Jury trial, civil practice and procedure.

99. – Continuances, civil practice and procedure.

100. – Contempt, civil practice and procedure.

101. – Limitation of actions, civil practice and procedure.

102. – Damages, civil practice and procedure.

103. – Appeals, civil practice and procedure.

104. – Reversal on issue of damages only, civil practice and procedure.

105. Juvenile practice and procedure.

106. Domestic relations action, generally.

107. Probate practice and procedure.

108. Real property actions and proceedings.

109. Torts.

110. Criminal practice and procedure – In general.

111. – Prospective or retroactive applicability, criminal practice and procedure.

112. – Prejudice, criminal practice and procedure.

113. – Public trial, criminal practice and procedure.

114. – Admissions to private persons, criminal practice and procedure.

115. – Compensation of judiciary, etc., criminal practice and procedure.

116. – Arrest, criminal practice and procedure.

117. – Bail, criminal practice and procedure.

118. – Guilty plea, criminal practice and procedure.

119. – Plea bargaining, criminal practice and procedure.

120. – Venue, criminal practice and procedure.

121. – Medical testing and treatment, criminal practice and procedure.

122. – Mental examination and treatment, criminal practice and procedure.

123. – Identification of accused, criminal practice and procedure.

124. – Discovery, criminal practice and procedure.

125. – Jury selection, criminal practice and procedure.

126. – Jury practice, criminal practice and procedure.

127. – Conduct of trial, criminal practice and procedure.

128. – Judicial conduct, criminal practice and procedure.

129. – Confrontation of witnesses, criminal practice and procedure.

130. – Hearsay evidence, criminal practice and procedure.

131. – Juvenile witnesses, criminal practice and procedure.

132. – Expert witnesses, criminal practice and procedure.

133. – Arguments to jury, criminal practice and procedure.

134. – Instructions to jury, criminal practice and procedure.

135. – Lesser included offenses, criminal practice and procedure.

136. – Habitual offenders, criminal practice and procedure.

137. – Sentencing proceeding, criminal practice and procedure.

138. – Sentence and punishment, criminal practice and procedure.

139. Parole.

140. Parole hearing.

141. –Cruel and unusual punishment, criminal practice and procedure.

142. –Sale of seized contraband, criminal practice and procedure.

143. –Appellate review, criminal practice and procedure.

144. –Post-conviction proceedings, criminal practice and procedure.

145. Speedy trial–In general.

146. –Statutory rights, speedy trial.

147. –Time right attaches, speedy trial.

148. –Assertion of right, speedy trial.

149. –Duty of state, speedy trial.

150. –Tolling of time, speedy trial.

151. –Factors considered, speedy trial.

152. –Time of application for speedy trial.

153. –Prejudice to defendant, speedy trial.

154. –Delay attributable primarily or solely to defendant, speedy trial.

155. –Delay attributable primarily or solely to state, speedy trial.

155.5. –Delay attributable neither to state nor defendant, speedy trial.

156. –Crowded dockets, speedy trial.

157. –Plea negotiations, speedy trial.

158. –Reindictment, speedy trial.

159. –Presumptions and burden of proof, speedy trial.

160. –Sufficiency of evidence, speedy trial.

161. –Waiver of rights, speedy trial.

162. –Appellate review, speedy trial.

163. –Double jeopardy–In general.

164. –Nolle prosequi, double jeopardy.

165. –Conspiracy, double jeopardy.

166. –Same elements, double jeopardy.

167. –Separate and distinct crimes, double jeopardy.

168. –Mistrial generally, double jeopardy.

169. –Mistrial at request of defendant, double jeopardy.

170. –Capital sentencing procedure, double jeopardy.

171. –Appellate rights, double jeopardy.

172. Search and seizure–In general.

173. –Warrant, search and seizure.

174. –Consent, search and seizure.

175. –Probable cause, search and seizure.

176. –Informants, search and seizure.

177. –Motor vehicle, search and seizure.

177. –Blood and bodily fluids, search and seizure.

178. –Abandonment of property, search and seizure.

179. –Search incident to arrest.

180. –Self-incrimination – In general.

181. –Advisement of Miranda rights, self-incrimination.

182. –Continued interrogation after defendant’s invocation of rights, self-incrimination.

183. –Admissions following unlawful arrest, self-incrimination.

184. –Capacity of defendant to make knowing waiver, self-incrimination.

185. –Refusal to sign waiver form, self-incrimination.

186. –Voluntary admissions, self-incrimination.

187. –Physical evidence generally, self-incrimination.

188. –Breathalyzer tests, self-incrimination.

189. –Fingerprints, self-incrimination.

190. –Hearsay evidence, self-incrimination.

191. –Comment upon exercise of right to remain silent, self-incrimination.

192. –Impeachment, self-incrimination.

193. –Arguments of counsel, self-incrimination.

194. Confessions–In general.

195. –Capacity of defendant, confessions.

196. –Pre-arrest statements, confessions.

197. –Delay in release or arraignment, confessions.

198. –Voluntariness, confessions.

199. –Inducements or threats, confessions.

200. –Burden of proof, confessions.

201. Right to counsel – In general.

202. –Probationers and parolees, right to counsel.

203. –Post-conviction proceedings, right to counsel.

204. –Pro se or hybrid representation, right to counsel.

205. –Joint representation, right to counsel.

206. –Conflicts of interest, right to counsel.

207. –Indigent defendant, right to counsel.

208. –Time right attaches, right to counsel.

209. –Invocation of right to counsel.

210. –Interrogation continued after counsel has been requested, right to counsel.

211. –Critical stage, right to counsel.

212. –Trial preparation time, right to counsel.

213. –Refusal to sign waiver form, right to counsel.

214. –Waiver, right to counsel.

215. –Sufficiency of evidence of denial of right to counsel.

216. Ineffective assistance of counsel–In general.

217. –Tests, ineffective assistance of counsel.

218. –Time to raise issue, ineffective assistance of counsel.

219. –Trial strategy, ineffective assistance of counsel.

220. –Suppression of evidence, ineffective assistance of counsel.

221. –Guilty plea, ineffective assistance of counsel.

222. Preparation for trial, ineffective assistance of counsel.

223. –Admission of evidence, ineffective assistance of counsel.

224. –Objections to evidence or instructions, ineffective assistance of counsel.

225. –Arguments to jury, ineffective assistance of counsel.

226. –Instructions to jury, ineffective assistance of counsel.

227. –Burden of proof, ineffective assistance of counsel.

228. –Presumptions, ineffective assistance of counsel.

229. –Penalty phase practice and procedure, ineffective assistance of counsel.

230. –Appellate representation, ineffective assistance of counsel.

231. –Totality of circumstances, ineffective assistance of counsel.

232. –Different outcome, ineffective assistance of counsel.

233. –Sufficiency of evidence, ineffective assistance of counsel.

234. Interrogation.

235. Environment and pollution.

1. Construction and application.

Trial court properly denied defendant’s request to question a venireman for which the State exercised a peremptory strike, as the record indicated the trial court relied not only upon information provided by outside sources (information for the strike was provided to the State by both a criminal investigator with the district attorney’s office and the sheriff’s department), but also upon the demeanor of the venire person. Thus, the State’s reason for the strike was race neutral; as to another peremptory strike, the State was properly allowed to call a witness who worked at the district attorney’s office to explain the State’s reasons for the strike, there were no signs of discrimination; the trial court also properly denied defendant’s request to question that venireman. Avant v. State, 910 So. 2d 695, 2005 Miss. App. LEXIS 186 (Miss. Ct. App. 2005).

Although all of petitioner death row inmate’s arguments were procedurally barred either by res judicata or for failure to raise the arguments earlier, and no intervening case law exempted petitioner from the procedural bar, the court also reviewed petitioner’s arguments on the merits; it reiterated its earlier holdings that there were no constitutional deficiencies in the Mississippi murder and death penalty statutes, including those relating to death resulting from child abuse as capital murder, and that none of the alleged deficiencies of defense counsel could have affected petitioner’s outcome. Jackson v. State, 860 So. 2d 653, 2003 Miss. LEXIS 355 (Miss. 2003).

Dismissal for failure to state a claim of a retired state employee’s equal protection challenge to the Legislature’s establishment of a supplemental retirement plan for legislators was proper; since the different treatment of retired legislators had a rational basis in the financial uncertainties they risked, the proper course in seeking a remedy was political, not judicial. Dillard v. Musgrove, 838 So. 2d 261, 2003 Miss. LEXIS 60 (Miss. 2003).

Section 47-5-112 [repealed] did not violate any “right” enjoyed by a county under the Fifth amendment to the United States Constitution or § 17 of the Mississippi Constitution, since political subdivisions of a state have no Fifth or Fourteenth Amendment protections against the state, and § 17 of the Mississippi Constitution applies only to “private” property. State v. Hinds County Bd. of Supervisors, 635 So. 2d 839, 1994 Miss. LEXIS 163 (Miss. 1994).

Due process requirement is directed to the protection of individuals and does not apply to frustrate state agencies in their relationships with each other; county board of supervisors has the power to allocate space in the courthouse, and it would be impractical to hamper them in the exercise of this duty by granting traditional due process safeguards to those affected by their decisions in such matters. Tally v. Board of Supervisors, 307 So. 2d 553, 1975 Miss. LEXIS 1826 (Miss. 1975).

2. Constitutionality.

Defendant’s capital murder conviction in violation of Miss. Code Ann. §97-3-19(2)(a) was proper where the statute did not violate U.S. Const. amends. VIII and XIV. The fact that Mississippi’s capital murder scheme made the death penalty a possible punishment for felony murder where there was no requirement to prove an intent to kill did not make the Mississippi capital murder statute unconstitutional. Davis v. State, 914 So. 2d 200, 2005 Miss. App. LEXIS 269 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 746 (Miss. 2005), cert. denied, 549 U.S. 856, 127 S. Ct. 133, 166 L. Ed. 2d 98, 2006 U.S. LEXIS 6743 (U.S. 2006).

3. State action.

In cases where no fundamental right is implicated, due process clause, of its own force, requires at minimum that state action be supportable by some legitimate goal and that means chosen for its achievement be rational, i.e., it is of no consequence that state’s method is over-inclusive or under-inclusive, so long as its legitimate goal may be attained by means chosen. Martin v. Memorial Hosp., 130 F.3d 1143, 1997 U.S. App. LEXIS 36424 (5th Cir. Miss. 1997).

State officials did not create special danger by allowing and encouraging out-patient of state mental health center to reside at state owned apartments reserved for such patients, as required to recover under state-created danger theory, were that theory adopted for purposes of analyzing state’s obligations under Fourteenth Amendment Due Process Clause. Randolph v. Cervantes, 130 F.3d 727, 1997 U.S. App. LEXIS 36122 (5th Cir. Miss. 1997), cert. denied, 525 U.S. 822, 119 S. Ct. 65, 142 L. Ed. 2d 51, 1998 U.S. LEXIS 4918 (U.S. 1998).

Fifth Circuit has not adopted state-created danger theory for purposes of analyzing state’s obligation under Fourteenth Amendment Due Process Clause. Randolph v. Cervantes, 130 F.3d 727, 1997 U.S. App. LEXIS 36122 (5th Cir. Miss. 1997), cert. denied, 525 U.S. 822, 119 S. Ct. 65, 142 L. Ed. 2d 51, 1998 U.S. LEXIS 4918 (U.S. 1998).

No special relationship existed between state and resident of state owned apartments leased to patients enrolled in state mental health treatment center’s transitional living program, as required to trigger duty in state, under Fourteenth Amendment Due Process Clause, to protect resident from self-inflicted injuries; although resident was ordered to obtain out-patient treatment and lease required her to attend various center’s programs, she was released on her own recognizance, she voluntarily entered into lease that specifically enabled her to terminate lease upon thirty days written notice, center and caseworker never took affirmative step of restraining resident’s liberty so that she was rendered unable to care for herself, and never held her against her will. Randolph v. Cervantes, 130 F.3d 727, 1997 U.S. App. LEXIS 36122 (5th Cir. Miss. 1997), cert. denied, 525 U.S. 822, 119 S. Ct. 65, 142 L. Ed. 2d 51, 1998 U.S. LEXIS 4918 (U.S. 1998).

Due Process Clause of Fourteenth Amendment confers upon individual the right to be free of state-occasioned damage to her bodily integrity, not entitlement to governmental protection from injuries caused by non-state actors; thus, as general rule, state’s failure to protect individual against private violence does not constitute violation of Due Process Clause. Randolph v. Cervantes, 130 F.3d 727, 1997 U.S. App. LEXIS 36122 (5th Cir. Miss. 1997), cert. denied, 525 U.S. 822, 119 S. Ct. 65, 142 L. Ed. 2d 51, 1998 U.S. LEXIS 4918 (U.S. 1998).

The phrase “under color of state law” found in 42 USCA § 1983 reflects the “state action” requirement of the Fourteenth Amendment, and consequently both phrases expressed the same legal principal. Taylor v. St. Clair, 685 F.2d 982, 1982 U.S. App. LEXIS 25587 (5th Cir. Miss. 1982).

Under this Amendment, neither the legislature nor any of its agencies can deprive a person of life, liberty, or property without due process of law. Efferson v. Bourn, 120 So. 434, 1929 La. App. LEXIS 436 (La.App. 1929).

4. Private Action.

A landlord’s actions in locking up a tenant’s possessions pursuant to §89-7-51(2) did not violate due process requirements where the landlord failed to use the attachment for rent statutes; since §89-7-51 did not authorize the landlord to use self-help to seize the tenant’s property, there was no state action. Bender v. North Meridian Mobile Home Park, 636 So. 2d 385, 1994 Miss. LEXIS 160 (Miss. 1994).

Nonjudicial foreclosure of deed of trust constitutes private action authorized by contract and does not come within scope of due process clause of Federal Constitution. Leininger v. Merchants & Farmers Bank, 481 So. 2d 1086, 1986 Miss. LEXIS 2362 (Miss. 1986).

5. Remedy at law.

This provision of constitution and § 24, State Constitution of 1890, providing that all courts shall be open and every person shall have remedy by due course of law, do not require that courts shall be open to hear ecclesiastical controversies even though reputation of litigant may be affected by failure of court to set aside action of ecclesiastical body. Trapani v. State, 44 So. 2d 52 (Miss. 1950).

6. Police powers.

Provisions of the Fourteenth Amendment to the Federal Constitution do not operate as a limitation on the police power of the state to pass and force such laws as will inure to the health, morals and general welfare of the people. Walters v. Blackledge, 220 Miss. 485, 71 So. 2d 433, 1954 Miss. LEXIS 464 (Miss. 1954).

7. Property interest.

City was not entitled to enforce a zoning ordinance that regulated nonconforming uses to prohibit a mobile-home park operator from replacing individual mobile-homes that were removed from the mobile-home park because the city’s interpretation of the ordinance, after more than thirty years of not enforcing the ordinance in that manner, was both arbitrary and capricious and violated the mobile-home park operator’s constitutional right to enjoy its property. Cleveland MHC, LLC v. City of Richland, 163 So.3d 284, 2015 Miss. LEXIS 230 (Miss. 2015).

Business owner did not meet his burden of showing that he was being deprived of his property without due process of law because the criminal statutes, Miss. Code Ann. §97-33-7 and Miss. Code Ann. §97-33-17, were not too broad in their description of what caused a video game to be an illegal slot machine, and a person with ordinary intelligence would have little difficulty determining what exactly was prohibited; Mississippi did not extend a property right to illegal gambling machines, such that there were no due process rights violations under the Fourteenth Amendment and Miss. Const. Art. 3, § 14, and Miss. Code Ann. §97-33-7(2) was not unconstitutionally vague. Trainer v. State, 930 So. 2d 373, 2006 Miss. LEXIS 178 (Miss. 2006).

Federal due process interests in property arise only from an independent source, such as state law statutory guarantees; if plaintiff fails to show property interest through independent source, due process considerations are not implicated. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

A restrictive covenant is an interest in real property for which due compensation must be paid upon a taking by the exercise of eminent domain powers. Morley v. Jackson Redevelopment Auth., 632 So. 2d 1284, 1994 Miss. LEXIS 75 (Miss. 1994).

8. Rules of court.

Where defendant was charged with and found guilty of felony driving under the influence of alcohol, the trial court did not err in denying defense counsel’s motion to suppress evidence of defendant’s blood alcohol results; the warrant authorizing the blood alcohol test was valid and thus, defendant’s constitutional rights were not violated. Inter alia, the officer observed defendant’s slurred speech and staggered walk, and he noted that defendant’s breath smelled of alcohol and defendant actually admitted to having drunk four beers that morning and was unable to recite the alphabet. Dove v. State, 912 So. 2d 1091, 2005 Miss. App. LEXIS 738 (Miss. Ct. App. 2005).

Rule providing that case could not be heard or re-heard en banc unless majority of all judges in regular active service, including any who may be recused in particular case, vote that case be heard or re-heard en banc does not deny equal protection and due process. United States v. Nixon, 827 F.2d 1019 (5th Cir. Miss. 1987), cert. denied, 484 U.S. 1026, 108 S. Ct. 749, 98 L. Ed. 2d 762, 1988 U.S. LEXIS 349 (U.S. 1988).

9. Sovereign immunity.

Sovereign immunity does not violate due process; such a violation requires the infringement of a liberty or property right and as the right to sue the State has been withheld by the Mississippi Legislature, the denial of the right to sue the State or other governmental entities and their employees under Miss. Code Ann. §11-46-9(1)(m) does not infringe upon any property right and does not violate due process. Carter v. Miss. Dep't of Corr., 860 So. 2d 1187, 2003 Miss. LEXIS 655 (Miss. 2003), cert. denied, 541 U.S. 959, 124 S. Ct. 1714, 158 L. Ed. 2d 399, 2004 U.S. LEXIS 2392 (U.S. 2004).

In 1990, Mississippi public officials had qualified immunity in civil action when they performed functions which were discretionary in nature; however, public official had no immunity to civil action for damages if his breach of legal duty caused injury and (1) that duty was ministerial in nature, or (2) that duty involved use of discretion and governmental actor greatly or substantially exceeded his authority and in course thereof caused harm, or (3) governmental actor commits intentional tort. Martin v. Memorial Hosp., 130 F.3d 1143, 1997 U.S. App. LEXIS 36424 (5th Cir. Miss. 1997).

Codification of principles of sovereign immunity did not violate due process clause of Fourteenth Amendment; there was no right to sue state or its political subdivisions at common law and, through codification, legislature continued to withhold such right, and thus there was no property right to sue state. Mohundro v. Alcorn County, 675 So. 2d 848, 1996 Miss. LEXIS 301 (Miss. 1996).

There is no “property right” to sue the State, since the Mississippi Legislature has withheld that right through its statutes, and therefore the principle of sovereign immunity, as enacted by the legislature in §§11-46-1 et seq., does not violate the due process clause of the Mississippi Constitution or the 14th Amendment to the United States Constitution.Robinson v. Stewart, 655 So. 2d 866, 1995 Miss. LEXIS 223 (Miss. 1995).

The continuance of electrical power is a property interest worthy of due process protections. Thus, the defense of sovereign immunity was not available to a county where a homeowner alleged that he had been damaged when the county and an electrical utility discontinued his electrical power, since sovereign immunity is no defense where a violation of constitutional rights is concerned. Tucker v. Hinds County, 558 So. 2d 869, 1990 Miss. LEXIS 173 (Miss. 1990).

10. Taking without compensation.

In a dispute surrounding the enactment of a district ordinance regulating the disposal of wastewater, residents, who owned septic systems, alleged that the enactment of the ordinance amounted to a taking. A genuine issue of material fact existed; therefore, the chancellor erred in granting summary judgment on this issue, and the record was insufficiently developed to afford review. Green v. Cleary Water, Sewer & Fire Dist., 910 So. 2d 1022, 2005 Miss. LEXIS 394 (Miss. 2005), cert. denied, 547 U.S. 1098, 126 S. Ct. 1883, 164 L. Ed. 2d 568, 2006 U.S. LEXIS 3287 (U.S. 2006).

The 2 lakes artificially created by dredging for fill materials used in construction of Interstate Highway I-10 are not part of the State’s tidelands public trust, and to strip these artificial tidelands from their record titleholders would constitute a taking within the Fifth and Fourteenth Amendments to the United States Constitution and within Mississippi Constitution Article 3, § 17, which taking would require just compensation from the State. Cinque Bambini Partnership v. State, 491 So. 2d 508, 1986 Miss. LEXIS 2462 (Miss. 1986), aff'd, 484 U.S. 469, 108 S. Ct. 791, 98 L. Ed. 2d 877, 1988 U.S. LEXIS 939 (U.S. 1988).

State law requiring landlords to allow cable television facilities on property constitutes “taking” of property compensable under Fifth and Fourteenth Amendments. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S. Ct. 3164, 73 L. Ed. 2d 868, 1982 U.S. LEXIS 150 (U.S. 1982).

11. Validity of statutes, generally.

Supposed “notice” to a special assistant attorney general is not sufficient under Miss. R. Civ. P. 24(d) or Miss. R. App. P. 44; therefore, a hospital was procedurally barred from bringing constitutional challenges to Miss. Code Ann. §41-7-191(16) under Miss. Const. Art. 4, § 87, Miss. Const. Art. 3, § 14, and the Fourteenth Amendment where there was no notice to the Mississippi Attorney General. Oktibbeha County Hosp. v. Miss. State Dep't of Health, 956 So. 2d 207, 2007 Miss. LEXIS 277 (Miss. 2007).

Miss. Code Ann. §11-46-9(1)(m), which denies inmates the right to bring claims against the State or other governmental entities, does not violate the Equal Protection clause of the Fourteenth Amendment because there is a legitimate purpose in protecting governmental entities from claims brought by inmates. Carter v. Miss. Dep't of Corr., 860 So. 2d 1187, 2003 Miss. LEXIS 655 (Miss. 2003), cert. denied, 541 U.S. 959, 124 S. Ct. 1714, 158 L. Ed. 2d 399, 2004 U.S. LEXIS 2392 (U.S. 2004).

Evidence that State Attorney General’s office encouraged check cashers’ association to lobby Legislature for regulation of their industry supported determination that State did not give check cashing businesses adequate notice that usury could be prosecuted under State RICO Act and, thus, that RICO was unconstitutionally vague as applied to check cashers; contact between check cashers and Attorney General’s office led check cashers to believe that their business was legal. State v. Roderick, 704 So. 2d 49, 1997 Miss. LEXIS 313 (Miss. 1997), cert. denied, 524 U.S. 926, 118 S. Ct. 2319, 141 L. Ed. 2d 694, 1998 U.S. LEXIS 3900 (U.S. 1998).

Usury is not criminal under State law and, thus, application of State’s RICO Act to usury would criminalize activity without fair notice and definite warning of prohibited conduct and would violate due process. State v. Roderick, 704 So. 2d 49, 1997 Miss. LEXIS 313 (Miss. 1997), cert. denied, 524 U.S. 926, 118 S. Ct. 2319, 141 L. Ed. 2d 694, 1998 U.S. LEXIS 3900 (U.S. 1998).

Criminal statute prohibiting disorderly conduct by failing or refusing to promptly reply with or obey request or order of law enforcement officer was not unconstitutionally vague under due process clause as applied to arcade owner who carried baseball bat toward small crowd in his parking lot; regardless of whether owner was cursing or threatening officer, presence of baseball bat greatly enhanced possibility of grievous injury to police officers or others if disturbance escalated, case concerned officer’s right to control conduct greatly increasing potential for sudden violence, and statute provided adequate notice that failure to obey order under the circumstances could result in arrest. Smith v. City of Picayune, 701 So. 2d 1101, 1997 Miss. LEXIS 379 (Miss. 1997).

The discretion granted the Secretary of State by §29-15-7 was not unconstitutionally vague in violation of the Fourteenth Amendment to the United States Constitution and Article 3, § 14 of the Mississippi Constitution, since the procedure established by the tidelands legislation had a reasonable relation to the governmental purpose of establishing the boundary of public trust lands; the mere fact that the discretion granted the Secretary of State could be interpreted in different lights did not automatically render it vague. Secretary of State v. Wiesenberg, 633 So. 2d 983, 1994 Miss. LEXIS 36 (Miss. 1994).

The Child Residential Home Notification Act (§§43-16-1 et seq.) did not interfere with the constitutional religious freedom rights of a church congregation which operated a children’s home. Fountain v. State, 608 So. 2d 705, 1992 Miss. LEXIS 676 (Miss. 1992).

Section 97-3-7(2) is not unconstitutionally vague on the ground that it does not define the term “serious bodily harm,” particularly when applied in a case involving brutal injuries; in more ambiguous cases, prosecutors and trial courts should refer to the definition of “serious bodily injury” set out in § 210.0 of the Model Penal Code. Fleming v. State, 604 So. 2d 280, 1992 Miss. LEXIS 382 (Miss. 1992).

Section99-15-17, which limits the compensation which an attorney may receive for the representation of an indigent, does not amount to an unconstitutional taking of an attorney’s property, deprive indigent defendants of the effective assistance of counsel, or violate the equal protection clause. The statute allows for “reimbursement of actual expenses,” which can be interpreted to include reimbursement for all actual costs to the lawyer for the purpose of keeping his or her door open to handle the case; there is a rebuttable presumption that a court-appointed attorney’s actual overhead within the statute is $25 per hour. This construction of §99-15-17 will allow an attorney to receive $1,000 in profit plus his or her actual expenses. A rebuttal presumption arises that the actual cost contemplated by the statute is the average of $25 per hour; this figure may be subject to change when the 1988 survey conducted by the Mississippi State Bar is updated. The trial court is bound by the $25 per hour figure only when proof to the contrary is not forthcoming. The hours submitted by an attorney are subject to scrutiny under a reasonable and necessary standard. Specific expenses must be approved by the court before the attorney incurs the expenses. Court approved expenses include, but are not limited to, such items as the cost of an investigator, the cost of an expert witness, and a trip to interview witnesses. This interpretation of the statute avoids unconstitutionality on all grounds. Wilson v. State, 574 So. 2d 1338, 1990 Miss. LEXIS 842 (Miss. 1990).

Permanent injunction has been issued to prevent enforcement of §39-5-63 because this act and others relating to sealing of files of state sovereignty commission, which had a clandestine purpose of perpetuating racial inequality, unconstitutionally infringe on black citizens’ rights to free speech and association, personal privacy, and lawful search and seizure. ACLU v. Mabus, 719 F. Supp. 1345, 1989 U.S. Dist. LEXIS 9679 (S.D. Miss. 1989), vacated, 911 F.2d 1066, 1990 U.S. App. LEXIS 16085 (5th Cir. Miss. 1990).

Outdoor Advertising Act (Code 1972 §§49-23-1 through49-23-29) does not violate Miss Const § 17 or US Const Amendment 14. Mississippi State Highway Com. v. Roberts Enterprises, Inc., 304 So. 2d 637, 1974 Miss. LEXIS 1457 (Miss. 1974).

A provision of the Milk Products Sales Act for recovery by the state of the cost of investigation and of attorney’s fees from violators of the Act is not unconstitutional in failing to provide for the recovery of such costs by a person who is charged with a violation of the Act but is the successful party in a suit. McCaffrey v. State, 220 So. 2d 826, 1969 Miss. LEXIS 1478 (Miss. 1969).

A state criminal statute prohibiting among other things, picketing in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from any courthouses or other public buildings is not so broad, vague, indefinite, and lacking in definitely ascertainable standard as to be unconstitutional on its face, is not void for overbreadth, but is a valid law dealing with conduct subject to regulation so as to vindicate important interests of society. Cameron v. Johnson, 390 U.S. 611, 88 S. Ct. 1335, 20 L. Ed. 2d 182, 1968 U.S. LEXIS 1879 (U.S. 1968).

A statute which prohibits signs, placards, advertisements, harangues, orations, loud language, parades, processions, assemblages, and partisan flags, banners, or devices on the grounds occupied by the State capitol buildings, office buildings and executive mansion infringe no constitutional limitation. Coppock v. Patterson, 272 F. Supp. 16, 1967 U.S. Dist. LEXIS 7062 (S.D. Miss. 1967).

Sections of statutes which authorize certain state officials in their own judgment or discretion to suspend the terms of laws prohibiting certain activities on grounds occupied by capitol buildings, state office buildings, and the state executive mansion in favor of other activities of their choice are invalid and unconstitutional. Coppock v. Patterson, 272 F. Supp. 16, 1967 U.S. Dist. LEXIS 7062 (S.D. Miss. 1967).

The Mississippi Criminal Syndicalism Act (Code 1942 §§ 2066.5-01 to 2066.5-06) on its face unconstitutionally abridges the freedoms of speech, press and assembly. Ware v. Nichols, 266 F. Supp. 564, 1967 U.S. Dist. LEXIS 8407 (N.D. Miss. 1967).

Code amendment of statute, declaring rents arising from demise of land by life tenant apportionable, by adding words “and a like apportionment shall be made in the case of annuities,” held constitutional. New York Life Ins. Co. v. Majet, 178 Miss. 440, 173 So. 412, 1937 Miss. LEXIS 218 (Miss. 1937).

An ordinance and statute prohibiting auction sales of jewelry between certain hours does not violate the requirements of due process and equal protection. Matheny v. Simmons, 165 Miss. 429, 139 So. 172, 1932 Miss. LEXIS 261 (Miss. 1932).

A privileged communication statute is not unconstitutional although the effect of enforcing it is to prevent the defendant from introducing proof on the main point in issue. Yazoo & M. V. R. Co. v. Decker, 150 Miss. 621, 116 So. 287, 1928 Miss. LEXIS 106 (Miss. 1928).

12. Validity of ordinance, generally.

A city’s noise control ordinance, which prohibited “unnecessary or unusual noises... which either annoys, injures or endangers the comfort, repose, health or safety of others . . . ,” violated the due process clauses of the federal and state constitutions because it failed to provide clear notice and sufficiently definite warning of the conduct that was prohibited. A statute is unconstitutionally vague when the standard of conduct it specifies is dependent upon the individualized sensitivity of each complainant, and whether a noise is “unnecessary,” “unusual” or “annoying” depends upon the ear of the listener. Nichols v. Gulfport, 589 So. 2d 1280, 1991 Miss. LEXIS 796 (Miss. 1991).

The construction and maintenance of a warehouse for the reception of freight on railroad right-of-way, which had existed as such for more than 50 years prior to the adoption of an ordinance making most of such right-of-way a residential district, held to be a reasonable use of such right-of-way in facilitating the company’s principal business and no more objectionable than the operation of trains, and to be authorized by provision of ordinance excepting existing nonconforming uses; and, accordingly, action of city authorities in denying such use of the property was an unreasonable and arbitrary interpretation of the ordinance which tended to deprive the company of its property and use thereof in violation of both Federal and State Constitutions. Jones v. Hattiesburg, 207 Miss. 491, 42 So. 2d 717, 1949 Miss. LEXIS 357 (Miss. 1949).

13. Equal protection – In general.

Mississippi Constitution provision providing that rights of way were not permissible in incorporated cities and towns was not unconstitutional under the Equal Protection Clause of the United States Constitution because there was a rational basis for this provision; unincorporated areas had few public roads, incorporated towns and cities had ordinances that required properties to abut these public roads, and cities or towns had the prerogative to mandate the minimum-access requirements necessary to protect the welfare of its citizens. Moreover, there were other remedies available. High v. Kuhn, 191 So.3d 113, 2016 Miss. LEXIS 121 (Miss. 2016).

Bar applicant’s Equal Protection claim failed as a matter of law because not only did the applicant fail to allege purposeful discrimination, but the applicant also failed to offer any evidence that the Mississippi Board of Bar Admissions’ rules and policies actually had a disproportionate impact. Griffin v. Miss. Bd. of Bar Admissions, 113 So.3d 1257, 2013 Miss. LEXIS 314 (Miss. 2013).

Defendant argued that trial court erred in accepting state’s allegedly race-neutral reasons for striking two potential jurors in defendant’s trial possession of cocaine, marihuana, and firearms violations; however, the state’s reason for striking one juror, which was that she had a past experience in the courtroom that exhibited a distaste for the prosecutor, was an acceptable, race-neutral reason, and as to the second potential juror that was removed, the state’s given explanation–that the juror worked across the street from defendant’s home–was also an acceptable, race-neutral reason. Chester v. State, 935 So. 2d 976, 2006 Miss. LEXIS 368 (Miss. 2006).

Requiring a landowner to pay for a sewer connection, after he refused a free connection, did not violate equal protection. The owner was notified that after a certain period of time, he would be responsible for the connection costs, and he was treated no differently than any other person who refused to allow the district to connect him for free. Croke v. Southgate Sewer Dist., 857 So. 2d 774, 2003 Miss. LEXIS 557 (Miss. 2003).

A real estate developer’s equal protection rights were not violated when he was unable to obtain a building permit to construct apartments. Bryan v. City of Madison, 213 F.3d 267, 2000 U.S. App. LEXIS 12822 (5th Cir. Miss. 2000), cert. denied, 531 U.S. 1145, 121 S. Ct. 1081, 148 L. Ed. 2d 957, 2001 U.S. LEXIS 1127 (U.S. 2001).

The court properly dismissed a judge’s claim that a formal complaint against her was based on race-based discrimination in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution and § 177A of the Mississippi Constitution because she had no factual basis for such claim; the fact that the Commission on Judicial Performance had recommended discipline against African-American judges in 24% of the total reported cases while they held less than 12% of the judgeship positions was insufficient proof of racial discrimination. Mississippi Comm'n on Judicial Performance v. Byers, 757 So. 2d 961, 2000 Miss. LEXIS 27 (Miss. 2000).

An indigent’s equal protection rights are violated when all potential defendants are offered one way to avoid prosecution and that one way is to pay a fine, and there is no determination as to an individual’s ability to pay such a fine; subjecting one to a jail term merely because he cannot afford to pay a fine, due to no fault of his own, is unconstitutional. Moody v. State, 716 So. 2d 562, 1998 Miss. LEXIS 279 (Miss. 1998).

No equal protection claim is made unless plaintiff asserts that challenged government action classifies or distinguishes between two or more relevant groups. Smith v. Luther, 973 F. Supp. 601, 1997 U.S. Dist. LEXIS 13513 (N.D. Miss. 1997).

Under equal protection clause, state may confer benefits on some people and not others, so long as the decision to do so is rational. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

Rational basis test is used for equal protection claim without suspect criteria, requiring government to show that act or policy is a rational means of achieving a legitimate government interest. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

A statute authorizing the continued detention of a convicted person after expiration of the term for which he was sentenced, in default of payment by him of the costs of prosecution, does not deny the equal protection of the laws. Ex parte McInnis, 98 Miss. 773, 54 So. 260, 1910 Miss. LEXIS 123 (Miss. 1910).

14. – Classification, equal protection.

That portion of a statute providing for the underground storage of natural gas exempting therefrom “a county having two judicial districts and being intersected by U.S. Highway 84 and Interstate 59” was a private and local exception suspending the operation of the general legislative act, did not amount to a classification germane to the subject matter of the legislation, and was, therefore, unconstitutional and void. Smith v. Transcontinental Gas Pipeline Corp., 310 So. 2d 281, 1975 Miss. LEXIS 1903 (Miss. 1975).

The legislature has broad discretion as regards “classification,” which is not obnoxious to the equal protection clause unless manifestly arbitrary. State ex rel. Rice v. Evans-Terry Co., 173 Miss. 526, 159 So. 658, 1935 Miss. LEXIS 195 (Miss.), aff'd, 296 U.S. 538, 56 S. Ct. 146, 80 L. Ed. 383, 1935 U.S. LEXIS 605 (U.S. 1935).

Legislature has wide discretion in classification of subjects of legislation, and law is general, not local, if classification has reasonable relation to purpose of Act and embraces all of stated class. Clark v. State, 169 Miss. 369, 152 So. 820, 1934 Miss. LEXIS 24 (Miss. 1934).

A classification is constitutionally permissible whenever it proceeds upon any difference which has a reasonable relation to the object sought to be accomplished. State ex rel. Jordon v. Gilmer Grocery Co., 156 Miss. 99, 125 So. 710, 1930 Miss. LEXIS 151 (Miss. 1930).

15. – Validity of statutes, equal protection.

District court correctly granted an injunction barring enforcement of Miss. Const. art. XIV, § 263A and Miss. Code Ann. §93-1-1(2), because there was no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State. The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. Campaign Southern Equal. v. Bryant, 791 F.3d 625, 2015 U.S. App. LEXIS 11581 (5th Cir. Miss. 2015).

Licensing requirement, Miss. Code Ann. §83-39-3(2), violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution where the State failed to articulate any rationale basis for precluding all felons, regardless of the nature or age of the felony, from holding bail-agent licenses. Chunn v. State ex rel. Miss. Dep't of Ins., 156 So.3d 884, 2015 Miss. LEXIS 36 (Miss. 2015).

Miss. Code Ann. §97-3-95 was held not to be unconstitutionally vague in a sexual battery case where the inmate admitted that he knew that raping an 11-year-old girl was wrong, but he did it anyway. Calhoun v. State, 849 So. 2d 892, 2003 Miss. LEXIS 233 (Miss. 2003).

City sign regulations which barred the placement of an exterior sign on a “single office building” did not violate the right to equal protection under the Fourteenth Amendment as the sign ordinance was applied evenly according to building classification. American Federated Gen. Agency, Inc. v. City of Ridgeland, 72 F. Supp. 2d 695, 1999 U.S. Dist. LEXIS 17760 (S.D. Miss. 1999).

The jurisdictional provisions of the Youth Court Act in §43-21-151 do not violate the rights to due process and equal protection under the United States Constitution and the Mississippi Constitution. Miller v. State, 740 So. 2d 858, 1999 Miss. LEXIS 173 (Miss. 1999).

One is entitled to due process of law before an administrative agency. McFadden v. Mississippi State Bd. of Med. Licensure, 735 So. 2d 145, 1999 Miss. LEXIS 64 (Miss. 1999).

Section 11-46-9(1)(d) does not violate either the fourteenth amendment of the U.S. Constitution or the Remedy Clause of the Mississippi Constitution, Article 3, Section 24, which guarantees that individuals shall have access to courts to redress their injuries. Jones v. Mississippi DOT, 744 So. 2d 256, 1999 Miss. LEXIS 201 (Miss. 1999).

The defendant city’s refusal to rezone residential property to light commercial was not a denial of due process, notwithstanding that property across the street had already been commercially developed by various businesses, since the city’s decision was “fairly debatable.” Burdine v. City of Greenville, 755 So. 2d 1154, 1999 Miss. App. LEXIS 332 (Miss. Ct. App. 1999).

Section 21-15-6 is rationally related to the legitimate purpose of protecting the public treasury and, therefore, does not violate equal protection. Mosby v. Moore, 716 So. 2d 551, 1998 Miss. LEXIS 276 (Miss. 1998), limited, Gale v. Thomas, 759 So. 2d 1150, 1999 Miss. LEXIS 379 (Miss. 1999).

The notice provision of the §11-46-11 does not violate the equal protection clause of the federal constitution, notwithstanding that it requires a person to give 90 days notice to the head of a government entity before suing that entity whereas this type of notice is not required when suing an individual. Vortice v. Fordice, 711 So. 2d 894, 1998 Miss. LEXIS 248 (Miss. 1998).

In determining whether law is invalid because of arbitrary or unreasonable classification, object thereof and question whether classification is reasonably expected to attain such object and germane thereto must be considered. Clark v. State, 169 Miss. 369, 152 So. 820, 1934 Miss. LEXIS 24 (Miss. 1934).

If statute has reasonable relation to governmental purpose and is calculated to carry out some governmental design, courts cannot strike it down as being “arbitrary.” Edward Hines Lumber Co. v. Hall, 148 So. 373 (Miss. 1933).

16. Due process –In general.

Chancellor did not err in granting partial summary judgment to the county in dismissing the property owner’s claims under Miss. Code Ann. §19-5-22 and 42 U.S.C.S. § 1983 because the initial requirement for either a procedural or substantive due process claim was proving the plaintiff had been deprived by the government of a liberty or property interest; otherwise, no right to due process could accrue. The property owner failed to prove injury to himself since it was the property owner’s tenant, and not the property owner, who the lien was against. LaCroix v. Marshall County Bd. of Supervisors, 28 So.3d 650, 2009 Miss. App. LEXIS 537 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 90 (Miss. 2010).

Trial court did not err in failing to appoint an independent medical examiner where defendant appeared to base his argument on a hope that another medical expert would find another cause of death rather than having any specific evidence to support his defense. Conley v. State, 948 So. 2d 462, 2007 Miss. App. LEXIS 24 (Miss. Ct. App. 2007).

Arrestee’s due process rights were not violated by an assistant district attorney’s act of providing incorrect identifying information to police that led to a wrongful arrest in a false pretenses case because the overall actions were objectively reasonable, even though a picture of the correct perpetrator and a discrepancy regarding birth dates was contained in a file; as such, the assistant district attorney was entitled to qualified immunity. Stewart v. DA, 923 So. 2d 1017, 2005 Miss. App. LEXIS 589 (Miss. Ct. App. 2005), cert. denied, 927 So. 2d 750, 2006 Miss. LEXIS 161 (Miss. 2006).

In defendant’s capital murder case, defendant’s right to a fair trial was not violated by the trial court’s admission of testimony about the sexual assault of the victim, which defendant was not charged with, that occurred in the moments preceding her murder where the sexual molestation was integrally related to her murder such that one could not coherently present the facts of her demise without reference to it, and it described part of the res gestae of the crime charged and helped shed light on defendant’s motive. McGowen v. State, 859 So. 2d 320, 2003 Miss. LEXIS 413 (Miss. 2003).

State’s loss of one of three bullets recovered from a crime scene did not violate defendant’s due process rights, as (1) there was no evidence that the State knew of the exculpatory value of the bullet, which had not been tested; (2) defendant could have produced the gun he fired, which would have proven his innocence (if he was telling the truth), but he chose to dispose of it; and (3) there was no evidence that the State acted in bad faith. Murray v. State, 849 So. 2d 1281, 2003 Miss. LEXIS 341 (Miss. 2003).

A real estate developer’s due process rights were not violated when he was unable to obtain a building permit to construct apartments since he had no property right to construct the apartments. Bryan v. City of Madison, 213 F.3d 267, 2000 U.S. App. LEXIS 12822 (5th Cir. Miss. 2000), cert. denied, 531 U.S. 1145, 121 S. Ct. 1081, 148 L. Ed. 2d 957, 2001 U.S. LEXIS 1127 (U.S. 2001).

The general manager of a country club and property owners association had no right to due process in connection with the termination of his employment contract as the parties to the employment contract were private, rather than state, actors. Diamondhead Country Club & Prop. Owners Ass'n v. Montjoy, 820 So. 2d 676, 2000 Miss. App. LEXIS 336 (Miss. Ct. App. 2000).

By its own terms, due process clause is not implicated unless individual’s property or liberty interests are threatened. Martin v. Memorial Hosp., 130 F.3d 1143, 1997 U.S. App. LEXIS 36424 (5th Cir. Miss. 1997).

The Constitutions of the United States and Mississippi require that no person may be deprived of his property except by due process of law, and an administrative body must protect such rights before depriving a person of his property. Mississippi Tel. Corp. v. Mississippi Public Service Com., 427 So. 2d 963, 1983 Miss. LEXIS 2445 (Miss. 1983).

The phrase “due process of law” as used in the Constitution, has been construed as protecting substantive as well as procedural rights. Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 1938 Miss. LEXIS 53 (Miss. 1938).

The requirement of due process should not be so construed as to put state and Federal governments into a strait jacket and prevent them from adapting life to the continuous change in social and economic conditions. Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 1938 Miss. LEXIS 53 (Miss. 1938).

17. – Substantive due process.

In a capital murder case, defendant’s due process claim was an attempt to supplement the protections of the Double Jeopardy Clause. Because the double jeopardy protections had not been violated, defendant could not assert a due process claim on the same grounds. Flowers v. State, 240 So.3d 1082, 2017 Miss. LEXIS 431 (Miss. 2017).

Although all of petitioner death row inmate’s arguments were procedurally barred either by res judicata or for failure to raise the arguments earlier, and no intervening case law exempted petitioner from the procedural bar, the court also reviewed petitioner’s arguments on the merits; it reiterated its earlier holdings that there were no constitutional deficiencies in the Mississippi murder and death penalty statutes, including those relating to death resulting from child abuse as capital murder, and that none of the alleged deficiencies of defense counsel could have affected petitioner’s outcome. Jackson v. State, 860 So. 2d 653, 2003 Miss. LEXIS 355 (Miss. 2003).

The plaintiff failed to state a cause of action based on the denial of the use and enjoyment of her property without due process of the law where she alleged that defendant highway patrol officers would drive to her house late at night and shine their headlights into her bedroom window, causing her to wake up and go to the front door, at which point they would drive away. Walker v. Henderson, 1999 U.S. Dist. LEXIS 19638 (N.D. Miss. Dec. 9, 1999), aff'd, 239 F.3d 366, 2000 U.S. App. LEXIS 30118 (5th Cir. Miss. 2000).

The Fourteenth Amendment’s protection of the plaintiff’s liberty interest was clearly established since his alleged nine month detention without proper due process protections was not objectively reasonable in light of the clearly established legal rules. Jones v. City of Jackson, 203 F.3d 875, 2000 U.S. App. LEXIS 1992 (5th Cir. Miss. 2000).

Extent to which individual interest is property interest protected by due process clause must be determined by examination of source of interest; where interest is created by some state law or contract, limitations of interest are determined by examination of state law or contract. Martin v. Memorial Hosp., 130 F.3d 1143, 1997 U.S. App. LEXIS 36424 (5th Cir. Miss. 1997).

The phrase “due process of law” as employed in the constitutional guaranty is, as applied to substantive rights interpreted to mean that the government is without the right to deprive a person of life, liberty or property by an act that has no reasonable relation to any proper governmental purpose or which is so far beyond the necessity of the case as to be an arbitrary exercise of governmental power. Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 1938 Miss. LEXIS 53 (Miss. 1938).

18. – Procedural due process.

Dismissing a school superintendent’s Fourteenth Amendment due process claim contesting termination due to a failure to appeal pursuant to Miss. Code Ann. §37-9-113 erred because (1) the superintendent sufficiently alleged denial of a property interest in employment without a constitutionally required pre-termination hearing, and (2) any appeal would have only provided a constitutionally inadequate post-termination hearing. Greene v. Greenwood Pub. Sch. Dist., 890 F.3d 240, 2018 U.S. App. LEXIS 12510 (5th Cir. Miss. 2018).

In a capital murder case, defendant’s due process claim was an attempt to supplement the protections of the Double Jeopardy Clause. Because the double jeopardy protections had not been violated, defendant could not assert a due process claim on the same grounds. Flowers v. State, 240 So.3d 1082, 2017 Miss. LEXIS 431 (Miss. 2017).

Chancellor did not abuse his discretion in refusing to set aside a default judgment entered against the majority shareholders as a result of their discovery misconduct where they had been given notice and an opportunity to be heard on the minority shareholder’s motion to strike their answer, the decision was based on a finding that the majority shareholders had willfully refused to participate in the pending litigation, and thus, due process had been satisfied. Crossley v. Moore, 182 So.3d 462, 2015 Miss. App. LEXIS 213 (Miss. Ct. App. 2015), cert. denied, 181 So.3d 1010, 2016 Miss. LEXIS 22 (Miss. 2016).

By approving increased rates based on “mirror construction work in progress” recovery, the Public Service Commission deprived the ratepayers of their money, and the increased rates were not being used to pay for funds during construction as provided by the Base Load Act but were confiscated through governmental decree by rate increase imposed by a privately owned corporation that could not spend it; the taking of private funds is a transfer of property and results in the deprivation of property. Miss. Power Co. v. Miss. PSC, 168 So.3d 905, 2015 Miss. LEXIS 315 (Miss. 2015).

Out-of-state law firm was subject to personal jurisdiction in Mississippi with respect to claims of legal malpractice and related other issues because the firm committed a tort against a contractor within the State of Mississippi, it had sufficient minimum contacts within the State, and traditional notions of fair play and substantial justice were not offended because it purposefully availed itself of the benefits and protections of Mississippi law. Baker & McKenzie, LLP v. Evans, 123 So.3d 387, 2013 Miss. LEXIS 548 (Miss. 2013).

Trial court abused its discretion and violated a juvenile defendant’s due process rights when it refused to grant funds for the retention of a post-traumatic-stress-disorder (PTSD) expert to assist the juvenile in preparing his imperfect self-defense theory. The juvenile established a need for the expert testimony to assist the jury in understanding how PTSD might have affected the juvenile’s thought process at the time he shot and killed his father. Evans v. State, 109 So.3d 1044, 2013 Miss. LEXIS 31 (Miss. 2013).

Mother was not afforded a fair trial, U.S. Const. Amend. XIV, Miss. Const. Art. 3, §§ 14, 24, where the chancellor was so combative, antagonistic, discourteous, and adversarial that no reasonable person, knowing all the facts, could conclude that the mother was afforded a fair trial; the chancellor’s intemperance with the mother would leave any reasonable person with doubts about his impartiality. Schmidt v. Bermudez, 5 So.3d 1064, 2009 Miss. LEXIS 104 (Miss. 2009).

Attorney had separate counsel to represent her interests at the hearing on contempt and sanctions and she did not object to the private nature of the hearing at the time it occurred and the court permitted her to call witnesses in her defense and to testify on her own behalf; the chancellor rescinded the portions of her contempt order sentencing the attorney to imprisonment; it was not a violation of the Due Process Clause of the Fourteenth Amendment to hold contempt hearings in youth court abuse proceedings out of the public eye under these circumstances. In re Spencer, 2008 Miss. LEXIS 126 (Miss. Feb. 28, 2008).

Rather than a denial of due process, the appellate court found that the student failed to take advantage of the process; the student was provided notice of and the opportunity to be heard at all of the hearings, including the one held on the summary judgment motion, and the student, for whatever reason, simply failed to attend the hearings. Harvey v. Stone County Sch. Dist., 982 So. 2d 463, 2008 Miss. App. LEXIS 20 (Miss. Ct. App. 2008).

In a sexual battery case, Miss. Code Ann. §97-3-101(3) authorizes the maximum sentence to be life in prison, but does not require the jury to arrive at that verdict. Because the trial court acted within the limits of the statute and the statute did not require a finding by the jury, the procedure used by the trial court did not violate his due process rights because it did not fail to take into consideration certain factors in determining a proper sentence. Hobgood v. State, 926 So. 2d 847, 2006 Miss. LEXIS 118 (Miss. 2006), cert. denied, 549 U.S. 1118, 127 S. Ct. 928, 166 L. Ed. 2d 714, 2007 U.S. LEXIS 143 (U.S. 2007).

Student expulsion was affirmed because the student was not denied due process when the school failed to provide a list of witnesses prior to his hearing, since the student was apprised of the charges against him, the student knew that the hearing before the district’s discipline review committee was in relation to his suspension for possession and selling controlled substances and “threatening to have a snitch jumped on and beat up,” and the student was allowed to have legal counsel present to aid his defense against the charges. C.B. v. Bd. of Trs. (In the Interest of T.B.), 931 So. 2d 634, 2006 Miss. App. LEXIS 116 (Miss. Ct. App. 2006).

Defendant was properly denied post-conviction relief after he pled guilty to armed robbery because the trial court did not err in not disqualifying the assistant district attorney on the ground that he had served as defendant’s court-appointed attorney prior to serving as assistant district attorney. Confidential information was not used in the prosecution of the case, and defendant was not denied fair trial. Vandergriff v. State, 920 So. 2d 486, 2006 Miss. App. LEXIS 50 (Miss. Ct. App. 2006).

Claimant, a teacher, was not denied procedural due process in her claim for disability benefits. Neither the referral by a doctor to a clinic where he was a director, nor the unavailability of the author of a medical report for cross-examination at the hearing constituted a violation of due process. Pub. Emples. Ret. Sys. v. Stamps, 898 So. 2d 664, 2005 Miss. LEXIS 255 (Miss. 2005).

Defendant was properly denied post-conviction relief after defendant’s probation was revoked; nowhere in the revocation hearing did defendant indicate that defendant did not have proper notice of the hearing or that defendant was not aware of the specific grounds for the revocation. Mathis v. State, 882 So. 2d 798, 2004 Miss. App. LEXIS 934 (Miss. Ct. App. 2004).

Before the appellate court was authorized to overturn a trial court’s denial of a request for expert assistance at public expense, it had to find an abuse of discretion so egregious as to deny due process rendering a trial fundamentally unfair; while it was true that defendant denied signing the waiver of rights form, the overwhelming evidence was that he did, and under the circumstances, defendant did not offer concrete reasons to justify the provision of expert consultation at public expense, such that the denial of defendant’s request for public assistance was not an abuse of discretion resulting in a denial of due process. Stewart v. State, 879 So. 2d 1089, 2004 Miss. App. LEXIS 763 (Miss. Ct. App. 2004).

Errors occurred when the administrative law judge acted contrary to his ruling at a hearing in which he found that an employee accident report was inadmissible because of discovery violations and when the Mississippi Workers’ Compensation Commission chose to disregard the administrative hearing officer’s decision as to the enforcement of its own procedural rules; however, the employee could not complain that the Commission’s consideration of the employee accident report caused surprise or contend that trial by ambush would have occurred if the administrative hearing officer had allowed the report to be introduced at the hearing because she knew the document existed and what it contained. Thus, although the administrative law judge erred when he reopened the record to admit the employee accident report, the error did not rise to the level of denying the employee due process. Bermond v. Casino Magic, 874 So. 2d 480, 2004 Miss. App. LEXIS 482 (Miss. Ct. App. 2004).

In a contract dispute over the installation of a swimming pool, a trial court violated a contractor’s procedural due process rights in basing its judgment on testimony that was neither taken under oath nor subject to cross-examination where the contractor consulted with a concrete finisher, and relied on the finisher’s unsworn opinion. Pulliam v. Chandler, 872 So. 2d 752, 2004 Miss. App. LEXIS 419 (Miss. Ct. App. 2004).

In a rape and simple assault case, admission of photographs of doors showing what were purported to be new locks, already testified to by the victim, did not affect the fundamental fairness of the trial to the extent of constituting reversible error. Williams v. State, 868 So. 2d 346, 2003 Miss. App. LEXIS 669 (Miss. Ct. App. 2003).

Eyewitness testimony of multiple witnesses was sufficient evidence that homicide committed by defendant, an armed late arriver to a nightclub fight, was not self-defense, and defendant was not prejudiced by the failure of the original indictment to state a specific overt act by which the homicide was committed, particularly where the indictment was amended to read “by shooting with a pistol.” Jones v. State, 856 So. 2d 285, 2003 Miss. LEXIS 363 (Miss. 2003).

Former employer that had consistently and arrogantly denied a former employee’s right to an accounting of earnings allegedly in the employer’s possession was not denied due process or its rights to a remedy when the chancery court ordered an equitable accounting without holding a hearing. Univ. Nursing Assocs., PLLC v. Phillips, 842 So. 2d 1270, 2003 Miss. LEXIS 59 (Miss. 2003).

State’s loss of one of three bullets recovered from a crime scene did not violate defendant’s due process rights, as (1) there was no evidence that the State knew of the exculpatory value of the bullet, which had not been tested; (2) defendant could have produced the gun he fired, which would have proven his innocence (if he was telling the truth), but he chose to dispose of it; and (3) there was no evidence that the State acted in bad faith. Murray v. State, 849 So. 2d 1281, 2003 Miss. LEXIS 341 (Miss. 2003).

There was no violation of due process where a physician examined the claimant and provided a diagnosis and recommendation, and then voted with his fellow members of the medical board in the initial administrative determination to deny the claimant’s application for disability retirement benefits as such procedure was justifiable by weighing the importance of the claimant’s interests against the risk of an erroneous decision and the costs of alternative procedures. Dean v. Public Emples. Retirement Sys., 797 So. 2d 830, 2000 Miss. LEXIS 258 (Miss. 2000).

In an action pertaining to an agreement whereby the defendant agreed to provide certain land features of a tour of Greece and round-trip airfare from New York to Athens, Greece for the plaintiff’s travel group, personal jurisdiction could not be imposed under the requirements of due process because (1) the defendant was a New York corporation with its principal and only place of business in the United States in New York, (2) the defendant stated that none of its contracted travel arrangements with the the plaintiff involved travel to or from any location in Mississippi, (3) the defendant had no office or other presence in Mississippi, and (4) the defendant had never had a client from Mississippi other than the plaintiff. Christian Tours, Inc. v. Homeric Tours, Inc., 2000 U.S. Dist. LEXIS 4594 (N.D. Miss. Mar. 30, 2000), aff'd, 239 F.3d 366, 2000 U.S. App. LEXIS 30099 (5th Cir. Miss. 2000).

The defendants were subject to personal jurisdiction in an action for breach of a contract regarding a book distribution agreement where the plaintiff alleged that the defendants maintained ongoing business relationships within Mississippi related to the present cause of action and, more specifically, that the defendants shipped hundreds of books into bookstores in Mississippi as well as maintain a sales force that visited Mississippi during each season to market the defendants’ books. Genesis Press, Inc. v. Carol Publ. Group, Inc., 2000 U.S. Dist. LEXIS 4595 (N.D. Miss. Mar. 30, 2000).

Personal jurisdiction over the defendants was not appropriate in an action for libel and slander where the plaintiff alleged that the defendants published the alleged defamatory information complained of on the Internet and allowed access and publication within Mississippi and among Mississippi residents, but the offending website was used solely as an advertising tool to be accessed via the Internet by individuals interested in aircraft conversion and the defendants did not have an office within Mississippi, did not have Mississippi employees or sales representatives, did not solicit business in Mississippi, and did not derive any income from Mississippi customers. Lofton v. Turbine Design, Inc., 100 F. Supp. 2d 404, 2000 U.S. Dist. LEXIS 4593 (N.D. Miss. 2000).

A letter, which specifically mentioned the statute allegedly violated and had attached complaint letters of persons relating the factual predicate for the alleged violation, was enough to provide a veterinarian proper notice of the charges against him before the licensing board, especially where the record before the licensing board was left open for 30 days after taking the testimony of the complaining witnesses to allow the veterinarian an opportunity to respond to the charges against him. Mississippi Bd. of Veterinary Med. v. Geotes, 770 So. 2d 940, 2000 Miss. LEXIS 190 (Miss. 2000).

Although a school district’s failure to follow the procedures set forth in the handbook were problematic, there was no violation of the student’s due process rights under the Fourteenth Amendment and any possible due process violations were cured when the student received a second formal hearing. Covington County v. G.W., 767 So. 2d 187, 2000 Miss. LEXIS 182 (Miss. 2000).

A county was not denied due process when monetary sanctions were imposed against it in a criminal proceeding for discovery violations, notwithstanding that the board of supervisors did not receive notice on either the hearing on the motion for sanctions or on the hearing on the supplemental motion for sanctions; the county’s board of supervisors was notified of the hearing on the District Attorney’s motion to clarify and was represented by counsel at the hearing, the county made no motions in relation to being allowed to cross-examine the witnesses from the previous hearings, the county did not complain to the trial court regarding the notice that it received, and the county’s attorney was given an opportunity to argue the county’s position at the hearing. State v. Blenden, 748 So. 2d 77, 1999 Miss. LEXIS 219 (Miss. 1999).

The claimant was deprived of due process where two physicians sat in judgment, as members of the disability appeals committee, of their own conclusions that the claimant was not entitled to disability benefits under the Public Employees’ Retirement System. Flowers v. Public Emples. Retirement Sys., 1999 Miss. App. LEXIS 219 (Miss. Ct. App. Apr. 20, 1999), op. withdrawn, sub. op., 748 So. 2d 178, 1999 Miss. App. LEXIS 431 (Miss. Ct. App. 1999); Burns v. Public Emples. Retirement Sys., 1999 Miss. App. LEXIS 210 (Miss. Ct. App. Apr. 20, 1999), op. withdrawn, sub. op., 748 So. 2d 181, 1999 Miss. App. LEXIS 430 (Miss. Ct. App. 1999); Dean v. Public Emples. Retirement Sys., 1999 Miss. App. LEXIS 209 (Miss. Ct. App. Apr. 20, 1999), aff'd, 797 So. 2d 830, 2000 Miss. LEXIS 258 (Miss. 2000).

A bill that created a sewer district and an ordinance that established a gray-water collection system and that regulated the use of public and private sewers and drains were not unconstitutional. Croke v. Lowndes County Bd. of Supervisors, 733 So. 2d 837, 1999 Miss. LEXIS 100 (Miss. 1999).

The defendant was not denied a fair trial when the trial court refused to quash the venire on the basis that, of the entire venire of 47 jurors selected for service, 16 had been exposed to pretrial publicity, where those 16 jurors were removed from the venire. Baldwin v. State, 732 So. 2d 236, 1999 Miss. LEXIS 76 (Miss. 1999).

The defendant in a murder prosecution was not denied due process when, after deliberating for two hours and 40 minutes, the jury sent a note to the court stating that they could reach a decision, the court instructed the jury to continue to deliberate, and the jury reached a verdict within 30 more minutes. Greenlee v. State, 725 So. 2d 816, 1998 Miss. LEXIS 300 (Miss. 1998).

The defendant was not denied due process by the court’s denial of 2 challenges to jurors for cause where the jurors at issue were ultimately excused by peremptory challenge. Sewell v. State, 721 So. 2d 129, 1998 Miss. LEXIS 521 (Miss. 1998).

A citizens’ group had no due process right to be involved in the policy decision made by a waste management authority on the location of a landfill since the authority was created as a public body corporate and politic constituting a political subdivision of the state and, therefore, the choice of a landfill location was an exclusive legislative function of the authority. Golden Triangle Regional Solid Waste Mgmt. Auth. v. Concerned Citizens Against the Location of the Landfill, 722 So. 2d 648, 1998 Miss. LEXIS 539 (Miss. 1998).

Procedural due process is positivist notion, designed to protect property interests, existing not by force of due process clause itself, but established by reference to some independent source, such as state law or contract. Martin v. Memorial Hosp., 130 F.3d 1143, 1997 U.S. App. LEXIS 36424 (5th Cir. Miss. 1997).

Due process clause provides mechanism by which person’s property or liberty may not be permanently diminished or abrogated without first being accorded that procedural protection designed to ensure principled and even-handed examination of basis for any such deprivation. Martin v. Memorial Hosp., 130 F.3d 1143, 1997 U.S. App. LEXIS 36424 (5th Cir. Miss. 1997).

Procedural due process imposes constraints on governmental decisions which deprive individuals of “liberty” or “property” interests within meaning of due process clause. Esco v. Blackmon, 692 So. 2d 74, 1997 Miss. LEXIS 156 (Miss. 1997).

Procedural due process questions are addressed in two steps: first step asks whether there exists liberty or property interest which has been interfered with by state, while second examines whether procedures attendant upon that deprivation were constitutionally sufficient. Esco v. Blackmon, 692 So. 2d 74, 1997 Miss. LEXIS 156 (Miss. 1997).

19. – Rights of indigent defendant, due process.

Where, as here, the State relies on expert testimony alone to connect the defendant to the offense charged, an independent defense expert is part of the raw materials integral to building an effective defense, and the trial judge deprives an indigent defendant of a fundamentally fair trial by refusing him funds to procure such an expert; the circuit court deprived defendant of a fair trial by denying him the assistance of a computer forensics expert when the State relied exclusively on its own expert to identify defendant as the perpetrator. Lowe v. State, 127 So.3d 178, 2013 Miss. LEXIS 648 (Miss. 2013).

20. – Validity of statutes, due process.

Kidnapping statute, Miss. Code Ann. §97-3-53, is not unconstitutionally vague because the use of other descriptive words in §97-3-53, such as e.g. and inveigle, leave defendants well informed on the crimes of which they are accused. Perkins v. State, 863 So. 2d 47, 2003 Miss. LEXIS 657 (Miss. 2003).

Miss. Code Ann. §97-41-16 was not unconstitutionally vague under the due process clause where an ordinary person reading the statute would have concluded that defendant’s conduct in shooting his neighbor’s dog was prohibited, and defendant was given sufficient notice that the conduct in which he engaged was proscribed. Hill v. State, 853 So. 2d 100, 2003 Miss. LEXIS 371 (Miss. 2003).

Miss. Code Ann. §97-3-95 was held not to be unconstitutionally vague in a sexual battery case where the inmate admitted that he knew that raping an 11-year-old girl was wrong, but he did it anyway. Calhoun v. State, 849 So. 2d 892, 2003 Miss. LEXIS 233 (Miss. 2003).

The “self-help” provision contained in §41-29-139(f) is unconstitutionally vague based on the due process clause of the Fourteenth Amendment to the United States Constitution; however, the clear intent of the legislature is that the statute is severable and, therefore, the remainder of the subsection is effective. Lewis v. State, 765 So. 2d 493, 2000 Miss. LEXIS 138 (Miss. 2000).

City sign regulations which barred the placement of an exterior sign on a “single office building” did not violate either the substantive or procedural right to due process under the Fourteenth Amendment. American Federated Gen. Agency, Inc. v. City of Ridgeland, 72 F. Supp. 2d 695, 1999 U.S. Dist. LEXIS 17760 (S.D. Miss. 1999).

Municipal corporation cannot invoke due process protection of Fourteenth Amendment against its own state, and is prevented from attacking constitutionality of state legislation on grounds that its own rights have been impaired. Cities of Oxford, Carthage, Louisville, Starkville & Tupelo v. Northeast Miss. Elec. Power Ass'n, 704 So. 2d 59, 1997 Miss. LEXIS 386 (Miss. 1997).

When legislature extinguishes “right” via legislation that affects general class of people, legislative process provides all process that is due. Cities of Oxford, Carthage, Louisville, Starkville & Tupelo v. Northeast Miss. Elec. Power Ass'n, 704 So. 2d 59, 1997 Miss. LEXIS 386 (Miss. 1997).

All crimes used as bases for State RICO Act prosecution are outlined in RICO Act, and there are cross-references between RICO and underlying criminal statutes, and, therefore, application of RICO to usury would violate due process for lack of notice that usury is prosecutable offense; no reference to RICO is made in usury statute or other statutes on interest and finance charges, and person of ordinary intelligence would not be given fair warning that usury is prosecutable offense. State v. Roderick, 704 So. 2d 49, 1997 Miss. LEXIS 313 (Miss. 1997), cert. denied, 524 U.S. 926, 118 S. Ct. 2319, 141 L. Ed. 2d 694, 1998 U.S. LEXIS 3900 (U.S. 1998).

State RICO Act does not set out level of intent required for prosecution of usury as collection of unlawful debt and, thus, RICO would omit essential element of crime and would be too vague to satisfy due process; although RICO is general intent crime that takes its intent from underlying crimes, level of intent for usury is defined by civil statute and would not apply to criminal prosecution. State v. Roderick, 704 So. 2d 49, 1997 Miss. LEXIS 313 (Miss. 1997), cert. denied, 524 U.S. 926, 118 S. Ct. 2319, 141 L. Ed. 2d 694, 1998 U.S. LEXIS 3900 (U.S. 1998).

Statute which either forbids or requires doing of act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process. State v. Roderick, 704 So. 2d 49, 1997 Miss. LEXIS 313 (Miss. 1997), cert. denied, 524 U.S. 926, 118 S. Ct. 2319, 141 L. Ed. 2d 694, 1998 U.S. LEXIS 3900 (U.S. 1998).

Statute attacked on grounds of vagueness is void under due process clause if individuals of common intelligence must necessarily guess at meaning and differ as to its application. Smith v. City of Picayune, 701 So. 2d 1101, 1997 Miss. LEXIS 379 (Miss. 1997).

The Business Sign Statute (§15-3-7) does not violate the Due Process Clause of the Fourteenth Amendment and was not repealed by implication in §75-10-103, but was virtually continued by express direction in §75-2-326(3)(a); furniture and office equipment “used or acquired” in the business was subject to execution and sale under the statute. In re Bruneau's, Inc., 642 F.2d 146, 1981 U.S. App. LEXIS 14441 (5th Cir. Miss. 1981).

Absent evidence of invidious discrimination as to a class or a person, state Sunday closing laws did not violate due process clause of state and federal constitutions. Genesco, Inc. v. J. C. Penney Co., 313 So. 2d 20, 1975 Miss. LEXIS 1664 (Miss. 1975).

In order for a statute to survive when confronted with due process of law, it must not appear to be arbitrary or capricious, but must have a reasonable relation to a legitimate end. Saucier v. Life & Casualty Ins. Co., 189 Miss. 693, 198 So. 625, 1940 Miss. LEXIS 155 (Miss. 1940).

It is presumed that legislature in making discriminations in classifications in statutes bases them on adequate grounds. Russell Inv. Corp. v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102, 1938 Miss. LEXIS 130 (Miss. 1938).

Code amendment of statute, declaring rents arising from demise of land by life tenant apportionable, by adding words “and a like apportionment shall be made in the case of annuities,” held not violative of constitutional guaranty of due process of law in application to annuities arising under disability provisions of life policies as requiring apportionment notwithstanding express contract to contrary, where disability provisions contained no express stipulation that benefits should be apportionable. New York Life Ins. Co. v. Majet, 178 Miss. 440, 173 So. 412, 1937 Miss. LEXIS 218 (Miss. 1937).

20.5. Vindictiveness of judge.

Defendant’s sentences were not the result of vindictiveness because the judge who sentenced defendant after his trial did not sentence him after his guilty plea, and thus, he had no personal stake in the prior conviction and no motivation to engage in self-vindication; having heard the circumstances of the crime through the evidence presented at trial, the judge was entitled to impose a harsher sentence than a judge who merely accepted defendant’s initial guilty plea. McCoy v. State, 147 So.3d 333, 2014 Miss. LEXIS 470 (Miss. 2014).

22. Due process – In general.

In a trial for possession of cocaine, where the State subjected three witnesses to improper questioning which suggested a sexual relationship between defendant and her co-defendant, but the court instructed the jury to disregard the testimony, and there was no request for a mistrial, judging from the record as a whole, the particular questions by the prosecution did not establish a level of prejudice which would have merited granting a mistrial. Brown v. State, 37 So.3d 1205, 2009 Miss. App. LEXIS 945 (Miss. Ct. App. 2009), cert. denied, 39 So.3d 5, 2010 Miss. LEXIS 329 (Miss. 2010), cert. denied, 562 U.S. 1015, 131 S. Ct. 533, 178 L. Ed. 2d 392, 2010 U.S. LEXIS 8510 (U.S. 2010).

In a trial for cocaine possession, the State’s references to the fact that defendant’s codefendant had pleaded guilty did not constitute plain error so as to merit reversal, where the codefendant was convicted of possession of different parcels of cocaine found in a different location, and where it was only after defense counsel asked an officer on cross-examination whether he asked the codefendant to change his statement and put any of the illegal drugs on defendant that the State brought into evidence the codefendant’s guilty plea. Brown v. State, 37 So.3d 1205, 2009 Miss. App. LEXIS 945 (Miss. Ct. App. 2009), cert. denied, 39 So.3d 5, 2010 Miss. LEXIS 329 (Miss. 2010), cert. denied, 562 U.S. 1015, 131 S. Ct. 533, 178 L. Ed. 2d 392, 2010 U.S. LEXIS 8510 (U.S. 2010).

22. Prosecutorial misconduct.

Defendant complained that a prosecutor’s closing argument statement inferred that he might have been sexually inappropriate with the victim in the past; however, looking at the record of the entire trial, the actions of the State did not constitute prosecutorial misconduct and, even if the statements were erroneous, the error was unquestionably harmless. Lastly, the jury was properly instructed that comments from the attorneys were not to be regarded as evidence when the jury deliberated on its verdict; thus, defendant was not denied his constitutional right to a fundamentally fair trial because of prosecutorial misconduct at closing argument. Havard v. State, 928 So. 2d 771, 2006 Miss. LEXIS 90 (Miss. 2006), cert. denied, 549 U.S. 1119, 127 S. Ct. 931, 166 L. Ed. 2d 716, 2007 U.S. LEXIS 153 (U.S. 2007).

23. Freedom of speech and press.

City of Vicksburg Ordinance 93-37 § 1014(A)(1)(g), banning nude and seminude dancing in adult entertainment establishments, violated the First Amendment. Steverson v. City of Vicksburg, 900 F. Supp. 1, 1994 U.S. Dist. LEXIS 20777 (S.D. Miss. 1994).

City of Vicksburg Ordinance 93-37, prohibiting adult entertainment establishments from locating within 1000 feet of churches and certain other facilities, provided reasonable alternative avenues of communication for the purposes of determining whether it violated the First Amendment, where the city planning commissioner submitted evidence of 93 potential sites for such establishments, including at least 69 with road access. Steverson v. City of Vicksburg, 900 F. Supp. 1, 1994 U.S. Dist. LEXIS 20777 (S.D. Miss. 1994).

Pursuant to §67-3-65, a city was authorized to enact ordinances regulating light wine and beer on adult entertainment premises without showing any secondary effects or showing that such establishments were conducive to criminal behavior; accordingly, any artistic or communicative value that might attach to topless dancing was overridden by the city’s exercise of its broad powers arising under the Twenty First Amendment, and the city’s prohibition of light wine and beer in a lounge featuring topless dancing was constitutionally permissible. Steverson v. City of Vicksburg, 900 F. Supp. 1, 1994 U.S. Dist. LEXIS 20777 (S.D. Miss. 1994).

Three doctors who worked in the emergency room of a hospital whose administrator was the center of controversy within the hospital and county government generally for his institution of efficiency programs that rankled the medical staff, including the three doctors, became vortex public figures when they issued an ultimatum to the board of trustees of the hospital even if they had not theretofore been public figures; accordingly, the three doctors had no right of recovery for libel absent proof by clear and convincing evidence of actual malice on the part of a newspaper writer who criticized them sharply in an editorial. Ferguson v. Watkins, 448 So. 2d 271, 1984 Miss. LEXIS 1638 (Miss. 1984).

The section of an ordinance enacted by the City of Tupelo authorizing the Chief of Police to deny a parade permit if he finds that “the conduct of the parade will probably cause injury to persons or property or provoke disorderly conduct or create a disturbance” is unconstitutional in that the term “disorderly conduct” is overbroad because it could be applied to deny permits to those seeking to engage in protected activity; the provision constitutes a prior restraint upon free speech because it is not narrowly drawn to relate to health, safety, and welfare interests, but instead sanctions the denial of a permit on the basis of the so-called “hecklers’ veto”; “the provision is unconstitutionally vague as well since it contains no instructions directing the Chief of Police in the formulation of his opinion. The phrase “will probably cause injury” is constitutionally invalid since the term “probably” is simply too vague and indefinite and does not control adequately the discretion of the Chief in his determination of when to grant or deny a permit; the phrase “create a disturbance” is unconstitutional because it vests in the licensing authority the unbridled discretion to determine when, in his opinion, it is likely that criminal conduct will occur in the future. Limiting parade activity to the hours before 6:00 pm is invalid where it remains light in Tupelo well past that hour most of the year and the protection of citizens at night is not thereby jeopardized by a later time limit. The requirements of the ordinance that all paraders be unarmed, line up no more than four abreast, in the right-hand lane of the street, in units of 100 or fewer, with 15-foot intervals between units is unconstitutional in that it violates the Equal Protection Clause since such requirements do not apply to students or governmental agencies. The requirement that marchers act in an “orderly manner” is unconstitutionally overbroad; and the restriction on the use of “profanity” is void since profanity is protected speech unless it falls into such unprotected categories as obscenity or fighting words. Exemption of governmental agencies and students participating in educational activities from the licensing and regulatory requirements constitutes a violation of the Equal Protection Clause since such discrimination is based upon the content of the speech involved. That section of the ordinance which requires that the applicant for a permit demonstrate the noise level of sound equipment to be used is not facially unconstitutional since all it requires is a demonstration of the noise level; however, in the course of applying this statute, if the Chief of Police denies permits because of the demonstrated noise level of the equipment, the applicant will be able to make the argument offered herein that the section fails to give narrow and objective standards to be used in the determination. The blanket prohibition against sound equipment in areas zoned for residential purposes is overbroad because the ordinance presumes incompatibility based on an area’s merely being zoned residential and oftentimes areas zoned residential include structures other than homes, such as churches and schools, which are not incompatible with the use of sound equipment. The restriction of the operation of sound equipment at any location between the hours of 6:00 pm and 9:00 am is invalid where, although nighttime restrictions might be justifiable, the hour at which the restriction commences is not necessarily at night. Beckerman v. Tupelo, 664 F.2d 502, 1981 U.S. App. LEXIS 14949 (5th Cir. Miss. 1981).

The superintendent’s refusal to approve employment of a teacher because of her husband’s controversial activities violated her right of free association guaranteed by the First and Fourteenth Amendments. Randle v. Indianola Municipal Separate School Dist., 373 F. Supp. 766, 1974 U.S. Dist. LEXIS 9258 (N.D. Miss. 1974).

The Mississippi Criminal Syndicalisin Act (Code 1942 §§ 2066.5-01 to 2066.5-06) on its face unconstitutionally abridges the freedoms of speech, press and assembly. Ware v. Nichols, 266 F. Supp. 564, 1967 U.S. Dist. LEXIS 8407 (N.D. Miss. 1967).

Federal courts have pre-empted the field of libel and slander and have established that hatred, ill will, enmity, intent to harm or negligence are insufficient to establish malice toward those involved in discussions on public issues. Reaves v. Foster, 200 So. 2d 453, 1967 Miss. LEXIS 1321 (Miss. 1967).

A public school principal, plaintiff in an action for damages for libel, cannot recover unless he shows malice by proving that the defendant when he published the words in question either knew that they were false, or published them in reckless disregard of whether true or not. Reaves v. Foster, 200 So. 2d 453, 1967 Miss. LEXIS 1321 (Miss. 1967).

By instructing the jury that if the defendant was arrested for public protest against racial segregation he could not be found guilty, the instruction constituted recognition that could not be applied to restrict defendant’s constitutional right so to protest, and that it could not be used to infringe upon the constitutional right of any person to speak freely within the framework of the law. McLaurin v. Greenville, 187 So. 2d 854, 1966 Miss. LEXIS 1361 (Miss. 1966), cert. denied, 385 U.S. 1011, 87 S. Ct. 704, 17 L. Ed. 2d 548, 1967 U.S. LEXIS 2662 (U.S. 1967).

Right to peacefully picket grows out of right of freedom of speech and freedom of press. Southern Bus Lines, Inc. v. Amalgamated Ass'n of Street, etc., 205 Miss. 354, 38 So. 2d 765, 1949 Miss. LEXIS 435 (Miss. 1949).

A statute which, as construed by the state courts, makes it a criminal offense to communicate to others views and opinions respecting governmental policies, and prophesies concerning the state of this and other nations, irrespective of whether the communication was with an evil or sinister purpose or advocated or incited subversive action against the nation or state, or threatened any clear and present danger to American institutions or government, denies the liberty guaranteed by the Fourteenth Amendment. Taylor v. Mississippi, 319 U.S. 583, 63 S. Ct. 1200, 87 L. Ed. 1600 (1943), reversing 194 Miss. 1, 11 So. 2d 663 (1943).

A statute making it a criminal offense to indoctrinate any creed, theory, or any set of principles which reasonably tends to create an attitude of stubborn refusal to salute, honor or respect the flag of the United States or of the state, denies the liberty guaranteed by the Fourteenth Amendment. Taylor v. Mississippi, 319 U.S. 583, 63 S. Ct. 1200, 87 L. Ed. 1600 (1943), reversing 194 Miss. 1, 11 So. 2d 663 (1943).

Freedom of speech includes the freedom to speak unwisdom or even heresy. Tisdale v. State, 4 So. 2d 356 (Miss. 1941).

The right to speak may never include the right to destroy or impair thereby that which protects such rights, for the right to speak is inseparable from the duty to respect. Tisdale v. State, 4 So. 2d 356 (Miss. 1941).

The citizens may reasonably criticize even the court or the judges thereof; and the exercise of this right may embarrass the particular functionary; it may depreciate the effectiveness of our legal procedure, yet so long as it pulls up short of the obstruction or impedance of the machinery of the court, then in motion, it is free from interference by the court. Tisdale v. State, 4 So. 2d 356 (Miss. 1941).

The right of the court to enforce respect for itself begins where the right of the citizen to speak ends, and the line of demarcation is fixed at that point where that which is spoken or published is calculated to obstruct the functioning processes of the court or to impede or impair the efficiency of its machinery then in motion, it being immaterial whether the obstruction is by force, insult, persuasion or disobedience, whether committed by act or word, or whether it affects the judge, the grand or petit jury, or any person made part of its personnel by its process. Tisdale v. State, 4 So. 2d 356 (Miss. 1941).

A newspaper editorial published after the court had adjourned, commenting on the circuit judge’s crusade against liquor selling and gambling, that the results thereof were exceedingly small, that any belief that crime was rampant in the community was unfounded, expressing confidence in the local law enforcement officers, and the like, did not constitute constructive contempt. Tisdale v. State, 4 So. 2d 356 (Miss. 1941).

24. Alcoholic beverages.

Section 67-3-13 did not deny a defendant, who was convicted of possession of beer in a “dry” part of the county while traveling home after having legally purchased the beer in a “wet” city, equal protection under the laws and constitution of the State of Mississippi and the Constitution of the United States, nor was there any invasion of the defendant’s constitutional right of privacy. Dantzler v. State, 542 So. 2d 906, 1989 Miss. LEXIS 197 (Miss. 1989).

Zoning ordinance prohibiting sale of beer within 500 feet of public school constitutes valid and reasonable exercise of police power of city because only minimal showing of rationality is necessary to enable liquor zoning ordinance to withstand constitutional attack. Davidson v. Clinton, 826 F.2d 1430, 1987 U.S. App. LEXIS 12259 (5th Cir. Miss. 1987).

Holders of license for sale of beer and light wines were not entitled to challenge constitutionality of statute authorizing election to determine whether sales of beer and light wine should be abolished on ground that failure of statute to provide for notice constituted denial of due process in absence of showing that if statute had provided for notice that result would have been different as to holders of license. Adams v. Board of Sup'rs, 177 Miss. 403, 170 So. 684, 1936 Miss. LEXIS 253 (Miss. 1936).

A statute making the keeper of a liquor nuisance liable to a penalty enforceable by attachment and seizure does not violate the Fourteenth Amendment where it provides for a hearing. State ex rel. Attorney Gen. v. Marshall, 100 Miss. 626, 56 So. 792, 1911 Miss. LEXIS 64 (Miss. 1911).

25. Antitrust laws.

A statute forbidding certain unlawful combinations of cotton ginners in restraint of trade does not violate the equal protection clause merely because it is not all-embracing. State ex rel. Jordon v. Gilmer Grocery Co., 156 Miss. 99, 125 So. 710, 1930 Miss. LEXIS 151 (Miss. 1930).

A classification of cotton ginners in a statute forbidding certain unlawful combinations of cotton ginners in restraint of trade between those operating gins in one place and those operating gins in two or more places, is not unreasonable or arbitrary. State ex rel. Jordon v. Gilmer Grocery Co., 156 Miss. 99, 125 So. 710, 1930 Miss. LEXIS 151 (Miss. 1930).

Prohibiting corporations from owning or operating any cotton gin where such corporations are interested in the manufacture of cottonseed oil or cottonseed meal does not deny the equal protection of the laws to corporations merely because the act applies to corporations alone and not to natural persons, where before the law was enacted cotton gins had been operated in Mississippi by individuals as well as corporations but there is no showing that oil mills and cotton gins were both operated by an individual or groups of individuals, since it may well be assumed that because of the larger capital required, and perhaps for other reasons, oil mills and cotton gins may have been operated in the state only by corporations, and that for this reason the restraint of the evil aimed at could be accomplished by controlling corporations only. Crescent Cotton Oil Co. v. Mississippi, 257 U.S. 129, 42 S. Ct. 42, 66 L. Ed. 166, 1921 U.S. LEXIS 1325 (U.S. 1921).

The Mississippi Antitrust Act (Laws 1900, c 88) does not, as applied to an agreement between retail lumber dealers not to deal with any manufacturer or wholesale dealer who sells direct to consumers in localities in which such retailer dealers conduct their business and keep a sufficient stock to meet demands, and to inform each of any such sale, unconstitutionally abridges the right of freedom of contract. Grenada Lumber Co. v. Mississippi, 217 U.S. 433, 30 S. Ct. 535, 54 L. Ed. 826, 1910 U.S. LEXIS 1969 (U.S. 1910).

26. Banks and banking.

Code 1942 § 4109, excepting banks from the prohibition against corporations holding or purchasing public lands, and permitting such holding or purchase by banks owning tax forfeited lands or holding a mortgage or deed of trust thereon at the time of the sale to the state for taxes, is not violative of the Fourteenth Amendment as denying equal protection of the law, but is reasonable, not arbitrary, not class legislation, and is germane to the purposes to be reasonably accomplished thereby. State v. Bellinger, 202 Miss. 675, 32 So. 2d 286, 1947 Miss. LEXIS 330 (Miss. 1947).

A statute empowering the court of chancery to reopen a closed bank in accordance with a plan proposed by at least three-fourths of the creditors and recommended by the superintendent of banks, if the court is satisfied after hearing the plan is feasible and just, and the superintendent is satisfied that the bank is solvent and can repay its depositors, providing that assenting and nonassenting creditors shall be required to accept payment in accordance with the terms of the approved plan, and that the superintendent shall have no power to diminish to the prejudice of creditors any assets otherwise available for payment, does not annul property rights in violation of the 14th Amendment. Doty v. Love, 295 U.S. 64, 55 S. Ct. 558, 79 L. Ed. 1303, 1935 U.S. LEXIS 305 (U.S. 1935).

A state bank guaranty statute authorizing the issuance of non-interest bearing guaranty certificates does not deprive a prior holder of an interest-bearing guaranty certificate of deposit under prior statutes of any vested right. Love v. Mangum, 160 Miss. 590, 135 So. 223, 1931 Miss. LEXIS 227 (Miss. 1931).

A statute requiring banks having tax collections on deposit to pay interest thereon, under penalty, does not deny the equal protection of the laws. Bank of Indianola v. Miller, 147 Miss. 695, 112 So. 877, 1927 Miss. LEXIS 321 (Miss. 1927), writ of error dismissed, 276 U.S. 605, 48 S. Ct. 337, 72 L. Ed. 727, 1928 U.S. LEXIS 140 (U.S. 1928).

The imposition of a penalty for failure of banks having tax collections on deposit to pay interest thereon is not a denial of due process because it is out of proportion to the unpaid interest. Bank of Indianola v. Miller, 147 Miss. 695, 112 So. 877, 1927 Miss. LEXIS 321 (Miss. 1927), writ of error dismissed, 276 U.S. 605, 48 S. Ct. 337, 72 L. Ed. 727, 1928 U.S. LEXIS 140 (U.S. 1928).

27. Bidders for public contracts.

The appellant was not denied equal protection when a county board of supervisors suspended contract negotiations with the appellant regarding a privately owned waste facility and called for a special election since, at the time the board accepted the petition and declared an election, the appellant was still in the negotiating stage and no formal contract had been entered into by the parties and, therefore, no liberty interest existed. Miss. Waste of Hancock County, Inc. v. Bd. of Supervisors, 818 So. 2d 326, 2001 Miss. LEXIS 43 (Miss. 2001).

Nonresidents not having a printing plant in the state, may constitutionally be excluded from bidding for contracts for public printing. Dixon-Paul Printing Co. v. Board of Public Contracts, 117 Miss. 83, 77 So. 908, 1918 Miss. LEXIS 150 (Miss. 1918).

A statute prohibiting counties from letting contracts for blank books, printed forms, stationery, or office supplies, to any bidder who is not a bona fide resident of the state actually engaged in the printing business or who, being a nonresident has not a printing plant in the state, does not violate the due process, equal protection and privileges and immunities of citizens clause of the Fourteenth Amendment. State ex rel. Collins v. Senatobia Blank Book & Stationery Co., 115 Miss. 254, 76 So. 258, 1917 Miss. LEXIS 205 (Miss. 1917).

28. Bonds.

Provision of private work bond statute (§85-7-191) establishing that only one cause of action is permitted against surety’s bond is inapplicable to party who has not been given constitutionally adequate notice of suit. American Fidelity Fire Ins. Co. v. Athens Stove Works, Inc., 481 So. 2d 292, 1985 Miss. LEXIS 2444 (Miss. 1985).

The contention of property owners in a new area annexed to a city that they are thereby denied due process and equal protection of the laws because their property will be subject to taxation to pay general obligation bonds issued by the city before the annexation ordinance was passed is not supported either by reason or by authority. Bridges v. Biloxi, 253 Miss. 812, 178 So. 2d 683, 180 So. 2d 154, 180 So. 2d 641, 1965 Miss. LEXIS 1054, 1965 Miss. LEXIS 1055, 1965 Miss. LEXIS 1056 (Miss. 1965).

The statutes which provide for the issuance of county road bonds for construction or reconstruction of roads and bridges in cases of emergency without a submission of the question to a vote of the electors is not unconstitutional. Hutchins v. Board of Supervisors, 227 Miss. 766, 87 So. 2d 54, 1956 Miss. LEXIS 751 (Miss. 1956).

A statute validating all road districts theretofore organized and legalizing their bonds, validates bonds theretofore issued, without regard to whether the law under which this district was organized violated the due process clause. Memphis & C. R. Co. v. Bullen, 154 Miss. 536, 121 So. 826, 1928 Miss. LEXIS 199 (Miss. 1928), aff'd, 282 U.S. 241, 51 S. Ct. 108, 75 L. Ed. 315, 1931 U.S. LEXIS 1 (U.S. 1931).

29. Bulk sales.

The Mississippi bulk sales law of 1908 is not repugnant to the due process or equal protection clauses. Wm. R. Moore Dry Goods Co. v. Rowe & Carithers, 97 Miss. 775, 53 So. 626, 1910 Miss. LEXIS 312 (Miss. 1910).

30. Children, generally.

Law does not allow parental rights to supercede the best interests of the child; parental rights, as is true of other fundamental rights, can be forfeited or taken away, and the law does recognize some means by which third parties can overcome the law’s preference of natural parents. Davis v. Vaughn, 126 So.3d 33, 2013 Miss. LEXIS 594 (Miss. 2013).

While due process clause of Federal Constitution proscribes governmental interference with individual liberties such as parent’s right to determine his child’s care, custody, and management, right is not absolute. Martin v. Coop, 693 So. 2d 912, 1997 Miss. LEXIS 169 (Miss. 1997).

To extent defendant referee of Youth Court failed to have record made of Youth Court proceeding for allegations of abuse of child, allegedly abused child was deprived of property interest to which she was entitled under Fourteenth Amendment. In addition, while referee did appoint guardian ad litem for child, he failed to insure that her interests were adequately protected by such representation and thus effectively denied her right to present evidence on her behalf, as established under state law, and deprived her of a protected property interest in that respect as well. Appropriate remedy for violation was to enjoin referee to hold new hearing in full conformity with statutory and constitutional requirements. Chrissy F. v. Mississippi Dep't of Public Welfare, 780 F. Supp. 1104, 1991 U.S. Dist. LEXIS 17998 (S.D. Miss. 1991), aff'd in part and rev'd in part, 995 F.2d 595, 1993 U.S. App. LEXIS 16843 (5th Cir. Miss. 1993).

There can be no per se prohibition against a child witness testifying in a divorce case between the child’s parents. The right of every litigant to compulsory process for witnesses and to have them testify under oath in court is so well grounded that any per se exclusion simply because he or she is a child of the divorcing parents risks offending the due process provisions of the Fifth and Fourteenth Amendments of the United States Constitution and Mississippi Constitution Art 3, § 14. Before excluding the testimony of a child witness of tender years in a divorce proceeding, the chancellor, at a minimum, should follow the procedure required by Crownover v Crownover (1975) 33 Ill App 3d 327, 337 NE2d 56. Although no parent can be precluded from having a child of the marriage testify in a divorce proceeding simply because of that fact, parents in a divorce proceeding should, if at all possible, refrain from calling children of their marriage as witnesses, and counsel should advise their clients against doing so except in the most exigent cases. Jethrow v. Jethrow, 571 So. 2d 270, 1990 Miss. LEXIS 700 (Miss. 1990).

A state may, consistent with the equal protection clause of the Fourteenth Amendment, withhold from the father of an illegitimate child the privilege of vetoing the adoption of that child in those cases where the father has never come forward to participate in the rearing of the child; a state may provide by statute that fathers who have abandoned their children have no right to block adoption of those children. Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297, 1979 U.S. LEXIS 92 (U.S. 1979).

A juvenile has the same right to due process as an adult has under the Constitution of the United States and the state Bill of Rights. Dependents of Roberts v. Holiday Parks, Inc., 221 So. 2d 92, 1969 Miss. LEXIS 1488 (Miss. 1969).

31. Child custody and adoption.

Chancery court did not err in granting custody to the father after finding that he had not deserted his child because there was no legally compelling reason to alter or abandon the established standards for rebuttal of the natural-parent presumption; requiring the maternal grandmother first to demonstrate that the father had relinquished his right to parent his child was not an undue burden. Davis v. Vaughn, 126 So.3d 33, 2013 Miss. LEXIS 594 (Miss. 2013).

The chancellor’s grant of sole legal and physical custody to the grandparents did not constitute the termination of a fundamental right of the mother that would merit an in forma pauperis appeal because the loss of custody alone did not sever the parent-child bond. The chancellor endeavored to maintain the parent-child bond between the mother and her son by granting liberal visitation rights. Schonewitz v. Pack, 913 So. 2d 416, 2005 Miss. App. LEXIS 302 (Miss. Ct. App. 2005).

In proceedings to determine custody of 2 children who had been adjudicated neglected and placed in foster care, the children were denied their due process right of representation where they were without the services of an attorney or guardian ad litem for approximately 3 years during the course of the custody proceedings. Copiah County Dep't of Human Servs. v. Linda D. (In the Interest of R.D.), 658 So. 2d 1378, 1995 Miss. LEXIS 368 (Miss. 1995), overruled in part, D.T. v. Hinds Cnty. Youth Court (In re J.T.), 188 So.3d 1192, 2016 Miss. LEXIS 165 (Miss. 2016).

Continuing and exclusive nature of chancery court jurisdiction over issues involving child custody precludes Youth Court from having exclusive original jurisdiction over proceedings involving abused child, where allegations of abuse are raised in context of custody proceeding over which chancery court already exercises jurisdiction. Rights of minor child suspected of having been sexually abused by parent, to access to court, were not impaired by chancery court’s considering allegations of sexual abuse without referring matter to Youth Court; minor was not deprived of procedural due process by alleged failure of officials to follow investigatory procedure set forth in Mississippi Youth Court Law, because of assertion of jurisdiction by chancery court; and even though Youth Court statute provided for exercise of exclusive jurisdiction over child abuse cases, such provision was not applicable to charges raised in case over which chancery court had already assumed and was exercising jurisdiction. Chrissy F. v. Mississippi Dep't of Public Welfare, 780 F. Supp. 1104, 1991 U.S. Dist. LEXIS 17998 (S.D. Miss. 1991), aff'd in part and rev'd in part, 995 F.2d 595, 1993 U.S. App. LEXIS 16843 (5th Cir. Miss. 1993).

A mother whose parental rights were terminated under [former] §93-15-103(3)(e) on the ground that there was a “substantial erosion of the relationship” between her and 2 of her children failed to show that the statute was unconstitutionally vague, since a person of common intelligence should have been aware that the result of a factual situation such as the mother’s could well be the termination of one’s parental rights. If the statute were more specific, then the cases in which it could be applied could be so drastically reduced as to make it ineffective in protecting the children it was meant to serve. Vance v. Lincoln County Dep't of Public Welfare, 582 So. 2d 414, 1991 Miss. LEXIS 360 (Miss. 1991).

In an action regarding parental rights termination, the Mississippi Supreme Court would consider the question regarding the constitutionality of the standard of proof required by §93-15-109 authorizing parental rights termination, despite the fact that such question was not raised at the trial level, where the basic issue involved the rights and destiny of small children. Natural Father v. United Methodist Children's Home, 418 So. 2d 807, 1982 Miss. LEXIS 2118 (Miss. 1982).

Where a licensing agreement between foster parents and the State of Mississippi, as well as state statutes, made clear the foster parent-child relationship was merely a temporary one, there could have been no expectation or entitlement on the part of the foster parents that a child placed in their home would remain permanently in their home. Therefore, the foster parents had no liberty or property interests which were entitled due process protection under the Fifth or Fourteenth Amendments. Crim v. Harrison, 552 F. Supp. 37, 1982 U.S. Dist. LEXIS 16303 (N.D. Miss. 1982).

That portion of §93-15-109 allowing parental rights termination to be decreed based upon a preponderance of the evidence standard is deficient and unconstitutional, since the standard of proof in an action for termination of parental rights must be “clear and convincing” in accordance with a mandate of the United States Supreme Court. Natural Father v. United Methodist Children's Home, 418 So. 2d 807, 1982 Miss. LEXIS 2118 (Miss. 1982).

Where in an adoption proceeding, the rights of the prospective adoptive child’s natural parents were not involved, the admission in evidence of the welfare department report, which contained hearsay material consisting of a statement by a welfare worker of conversation and correspondence with others, did not deprive the prospective adoptive parents of due process of the law. Brunt v. Watkins, 233 Miss. 307, 101 So. 2d 852, 1958 Miss. LEXIS 381 (Miss. 1958).

So long as a procedure for adoption affects all persons alike who are similarly situated and is suitable to accomplish the paramount purpose for which adoption laws are enacted, which is the promotion of the welfare of the children, and is not unjust, unreasonable or arbitrary, it will be adjudged due process. Brunt v. Watkins, 233 Miss. 307, 101 So. 2d 852, 1958 Miss. LEXIS 381 (Miss. 1958).

The granting of authority to the court in adoption proceedings to make investigations limited to matters concerning whether the child is a proper subject for adoption, the petitioners are suitable parents for the child, the adoption is in the best interest of the child, and any other facts or circumstances which might be material to the proposed adoption, is not unreasonable, and such procedures do not constitute a denial of due process of law. Brunt v. Watkins, 233 Miss. 307, 101 So. 2d 852, 1958 Miss. LEXIS 381 (Miss. 1958).

Any proceeding to adopt a child without making presumptive father party to proceeding is invalid under due process provision of state and federal constitutions. Davis v. Davis, 37 So. 2d 735 (Miss. 1948).

A child’s parents cannot, under the due process of law provisions of the state and Federal constitutions, be deprived by a judicial proceeding of their parental rights without notice thereof, and an opportunity to be heard in opposition thereto. Britt v. Allred, 199 Miss. 786, 25 So. 2d 711, 1946 Miss. LEXIS 246 (Miss. 1946).

Due process requires hearing before the court on notice to parent before depriving parent of custody of child. Sinquefield v. Valentine, 159 Miss. 144, 132 So. 81, 1931 Miss. LEXIS 34 (Miss. 1931).

32. Child support.

While it could not be said that the increase in child support was unreasonable, it was not requested by the father; the chancellor committed error in sua sponte granting an increase in the amount of child support the mother would be required to pay. Purviance v. Burgess, 980 So. 2d 308, 2007 Miss. App. LEXIS 787 (Miss. Ct. App. 2007).

Order finding a father in contempt for his nonpayment of child support was upheld where he had received a valid summons for the initial hearing; because the father appeared at the hearing at which he was found in contempt, any defects in the issuance of the notice by the court administrator were waived, and the father was not deprived of notice or the ability to prepare. Bailey v. Fischer, 946 So. 2d 404, 2006 Miss. App. LEXIS 425 (Miss. Ct. App. 2006).

A father in a child support proceeding would be required to assert his claim of privilege against self-incrimination on a question by question basis with respect to questions regarding his tax returns, and would be required to tender sufficient information to allow the court to make an informed decision concerning the claim of privilege. Harrell v. Duncan, 593 So. 2d 1, 1991 Miss. LEXIS 979 (Miss. 1991).

A defendant father was not subject to in personam jurisdiction in Mississippi consistent with due process in an action brought by the mother regarding his child support obligations, even though an Ohio court had transferred jurisdiction over the case to a chancery court in Mississippi in accordance with the Uniform Child Custody Jurisdiction Act and the child resided in Mississippi, where the father had no minimum contacts with Mississippi and had not purposely availed himself of the benefits of the laws of the state of Mississippi or derived personal or commercial benefit from his child’s presence in Mississippi. Carpenter v. Allen, 540 So. 2d 1334, 1989 Miss. LEXIS 163 (Miss. 1989).

33. Civil rights.

An action brought against a municipality for alleged deprivation of civil rights under the Fourteenth Amendment to the United States Constitution failed to state a claim, where there was no allegation that municipal policy, custom, edict or act inflicted injury. Saunders v. Mullins, 412 So. 2d 245, 1982 Miss. LEXIS 1857 (Miss. 1982).

34. Civil service.

Employee’s property interest in his employment was created by Miss. Code Ann. §§21-31-21 and21-31-23, which provided that civil service employees could not be discharged except for cause; where he was given written notification of termination and told of the actions he could take if he disagreed with the termination, the employee was given the minimum due process required. Burleson v. Hancock County Sheriff's Dep't Civ. Serv. Comm'n, 872 So. 2d 43, 2003 Miss. App. LEXIS 1063 (Miss. Ct. App. 2003), cert. denied, 873 So. 2d 1032, 2004 Miss. LEXIS 467 (Miss. 2004), cert. denied, 543 U.S. 1038, 125 S. Ct. 809, 160 L. Ed. 2d 605, 2004 U.S. LEXIS 8252 (U.S. 2004).

Section 25-11-103(f), which provides that the spouse of a member of the Public Employees’ Retirement System shall be the member’s beneficiary unless the member has designated another beneficiary subsequent to the date of marriage, does not constitute an unreasonable impairment of an employee’s contractual right contrary to the United States and Mississippi Constitutions because it provides protection to those whose spouse fails to redesignate due to “inadvertence” while allowing an employee to make a “conscious decision” to redesignate if he or she does not want his or her spouse to receive the death benefits. Dillon v. Beal, 632 So. 2d 1298, 1994 Miss. LEXIS 113 (Miss. 1994).

Ordinance requiring all municipal employees qualified under the rules and regulations of the civil service commission to maintain their domicil and principal place of business within the corporate limits of the city during the period of their employment did not infringe their constitutional right to intrastate travel, and the city was not required to justify the ordinance under the compelling interest standard which must be met upon interference with a right to travel interstate; dismissal of the action affirmed. Wright v. Jackson, 506 F.2d 900, 1975 U.S. App. LEXIS 16572 (5th Cir. Miss. 1975).

35. Colleges and universities.

Two former students at a state university medical center were not denied their substantive due process rights when they were dismissed for failing to pass an examination after three attempts since, even assuming that the students had a constitutional right to continued enrollment free from arbitrary state action, they were not treated in a manner completely devoid of reasoned academic decision making. University of State Med. Ctr. v. Hughes, 765 So. 2d 528, 2000 Miss. LEXIS 198 (Miss. 2000).

An otherwise qualified male applicant to the nursing school of the Mississippi University for Women who had been rejected on the ground that the institution did not admit men was denied his constitutional right to equal protection of the law by the university’s discriminatory policy of exclusion based upon gender, particularly where the state did not maintain a corresponding all-male school of nursing. Hogan v. Mississippi University for Women, 646 F.2d 1116, 1981 U.S. App. LEXIS 12573 (5th Cir. Miss. 1981), aff'd, 458 U.S. 718, 102 S. Ct. 3331, 73 L. Ed. 2d 1090, 1982 U.S. LEXIS 157 (U.S. 1982).

A college professor did not have a property interest protected by due process in his grant of tenure. Section 37-101-15 empowers the Board of Trustees of institutions of Higher Learning to terminate professors’ employment contracts at any time for malfeasance, inefficiency or contumacious conduct but does not create a legitimate expectation of continued employment for a non-tenured employee. If a state regulation conditions receipt of a benefit upon a discretionary decision of an administrator, there is no legitimate claim of entitlement to the benefit. Wicks v. Mississippi Valley State University, 536 So. 2d 20, 1988 Miss. LEXIS 591 (Miss. 1988).

In an action against an out-of-state university, where the university engaged in a wide variety of educational functions in the recruitment and education of students from Mississippi, where the university encouraged alumni activities in Mississippi, including the solicitation and acceptance of funds from alumni and friends in the state, and where the university participated in a variety of intercollegiate competitions and activities with private and public institutions of Mississippi, such activities were sufficient, under the Fourteenth Amendment, to render it constitutionally amenable to an adjudication of its rights in funds held by the clerk of the Chancery Court. Administrators of Tulane Educational Fund v. Cooley, 462 So. 2d 696, 1984 Miss. LEXIS 2051 (Miss. 1984), cert. denied, 474 U.S. 820, 106 S. Ct. 70, 88 L. Ed. 2d 57, 1985 U.S. LEXIS 3244 (U.S. 1985).

A non-tenured university employee has no property interest under the Fourteenth Amendment in continued government employment, and is therefore not entitled to constitutionally-mandated due process procedural safeguards upon the failure of the university to renew his contract at the end of its term. Montgomery v. Boshears, 698 F.2d 739, 1983 U.S. App. LEXIS 30284 (5th Cir. Miss. 1983).

State-supported university’s policy excluding males from enrolling in university’s professional nursing school violates equal protection clause of Fourteenth Amendment. Mississippi University for Women v. Hogan, 458 U.S. 718, 102 S. Ct. 3331, 73 L. Ed. 2d 1090, 1982 U.S. LEXIS 157 (U.S. 1982).

A university professor who was denied tenure and whose contract was not renewed had not acquired a protectable property interest in an expectation of future employment, even though he had been employed at the university for a term of years, where there was no evidence showing the existence of any understanding or implied promise of continued employment; nor did the nonrenewal of his contract amount to a denial of a liberty interest by stigmatizing his reputation in foreclosing other employment opportunities where there was no showing that defendant university officials had committed any overt act to impugn plaintiffs character, to damage his reputation in the community, or prevent him from finding other employment. Citron v. Jackson State University, 456 F. Supp. 3, 1977 U.S. Dist. LEXIS 13575 (S.D. Miss. 1977), aff'd, 577 F.2d 1132 (5th Cir. Miss. 1978).

The trial court erred in enjoining the National Collegiate Athletic Association from interfering with the right of a Mississippi State University football player to engage in intercollegiate athletics, on the asserted basis of the Association’s violation of procedural due process in suspending the player, since the privilege of engaging in interscholastic athletics is not a “property” right. National Collegiate Athletic Asso. v. Gillard, 352 So. 2d 1072, 1977 Miss. LEXIS 1985 (Miss. 1977).

“One man, one vote” rule has no relevancy to selection of trustees of Mississippi public junior colleges, as such selection is appointive rather than elective. Oaks v. Board of Trustees, 385 F. Supp. 392, 1974 U.S. Dist. LEXIS 5846 (N.D. Miss. 1974).

Classification of all aliens as nonresidents for purpose of charging tuition and fees at state-supported institutions of higher education violates both the equal protection and due process clauses of the Fourteenth Amendment. Jagnandan v. Giles, 379 F. Supp. 1178, 1974 U.S. Dist. LEXIS 7125 (N.D. Miss. 1974), aff'd, in part, 538 F.2d 1166, 1976 U.S. App. LEXIS 7037 (5th Cir. 1976).

The state may require a member of a chapter of a Greek letter fraternity of another college to renounce his allegiance to and affiliation with such fraternity before admitting him as a student into any educational institution supported by the state without denying due process of law or his privileges as a citizen of the United States under the 14th Amendment, although the fraternity to which he belongs may be a moral and self-disciplinary force. Waugh v. Board of Trustees, 237 U.S. 589, 35 S. Ct. 720, 59 L. Ed. 1131, 1915 U.S. LEXIS 1371 (U.S. 1915).

A statute prohibiting the existence of Greek letter fraternities and similar societies in the state educational institutions and depriving members in them of the right to receive or compete for diplomas, class honors, prizes or medals, does not deny the equal protection of the laws because it is construed by the officials charged with its enforcement not to apply to “students already entered and to conduct themselves with decorum as expected of a southern gentleman.” Waugh v. Board of Trustees, 237 U.S. 589, 35 S. Ct. 720, 59 L. Ed. 1131, 1915 U.S. LEXIS 1371 (U.S. 1915).

A statute forbidding the existence of Greek-letter fraternities in educational institutions supported by public funds, and making renunciation of membership a condition of the receipt by members of such fraternities of class honors, diplomas, or distinctions is constitutional. Board of Trustees v. Waugh, 105 Miss. 623, 62 So. 827, 1913 Miss. LEXIS 242 (Miss. 1913), aff'd, 237 U.S. 589, 35 S. Ct. 720, 59 L. Ed. 1131, 1915 U.S. LEXIS 1371 (U.S. 1915).

36. Contracts.

Service provider had no protected interest in the renewal or award of the fiscal agent contract of the Mississippi Division of Medicaid; the unilateral expectation of the contract was not sufficient to support a 42 U.S.C.S. § 1983 cause of action for a due process violation under U.S. Const. amend. XIV. Elec. Data Sys. Corp. v. Miss. Div. of Medicaid, 853 So. 2d 1192, 2003 Miss. LEXIS 411 (Miss. 2003).

“Liberty” within constitutional provisions against depriving any person thereof except by due process of law includes “liberty of contract” which, in turn, means freedom from arbitrary or unreasonable restraint. Moore v. Grillis, 205 Miss. 865, 39 So. 2d 505, 1949 Miss. LEXIS 472 (Miss. 1949).

The right to make contracts is one of the rights guaranteed by the Fourteenth Amendment. Jones v. Mississippi Farms Co., 116 Miss. 295, 76 So. 880, 1917 Miss. LEXIS 308 (Miss. 1917).

37. Corporations.

In a personal injury action against a domesticated foreign corporation, the trial court’s exercise of jurisdiction as an attachment in chancery on the grounds of nonresidency did not violate the corporation’s right to equal protection of the laws, even though it claimed to be a domestic corporation for all intents and purposes, where the state of incorporation retained, inter alia, supervisory power and the final authority to dissolve the corporation. Louisville & N. R. Co. v. Hasty, 360 So. 2d 925, 1978 Miss. LEXIS 2307 (Miss.), cert. denied, 439 U.S. 1003, 99 S. Ct. 614, 58 L. Ed. 2d 679, 1978 U.S. LEXIS 4129 (U.S. 1978).

Code 1942 § 5310.1 which gives to the Governor unlimited discretion to deny a charter to a non-profit corporation is unconstitutional for the reason that it confers an absolute and arbitrary discretion on a state official to grant or deny a right or privilege. Smith v. Ladner, 288 F. Supp. 66, 1968 U.S. Dist. LEXIS 9386 (S.D. Miss. 1968).

38. Creditor’s remedies.

Section 91-7-145’s time bar did not apply, and therefore a creditor’s untimely claim against an estate was valid, where the creditor was “reasonably ascertainable” and the administratrix merely published notice rather than providing notice by mail as mandated by the statute; furthermore, the insufficient notice violated the due process clause of the Fourteenth Amendment to the United States Constitution.Vann v. Mississippi Neurosurgery, P.A. (In re Estate of Petrick), 635 So. 2d 1389, 1994 Miss. LEXIS 205 (Miss. 1994).

The role played by the chancery court in probate proceedings under §91-7-143, upon which the statute’s time bar is dependent in that notice may be published only after an affidavit is filed with the clerk of court, is sufficient state action to implicate the due process clause of the Fourteenth Amendment to the United States Constitution; thus, a creditor’s claim against an estate was a property interest protected by the Fourteenth Amendment. Vann v. Mississippi Neurosurgery, P.A. (In re Estate of Petrick), 635 So. 2d 1389, 1994 Miss. LEXIS 205 (Miss. 1994).

A circuit judge erred in deciding not to subject a creditor to liability for injurious violation of a debtor’s constitutional right to due process when the creditor seized the debtor’s mobile home and furnishings in compliance with §11-37-101 simply because the creditor acted pursuant to a presumptively valid (albeit unconstitutional) statute. An evidentiary hearing should have been held, and the creditor’s claim of good faith reliance on a presumptively valid statute should have been considered in light of not only the sincerity in its belief that it was acting properly, but the reasonableness of its actions under the circumstances. A fact finder conceivably could have concluded that the creditor’s “surprise” seizure of the debtor’s mobile home and its contents was, under the circumstances, unreasonable and compensable, where the record indicated no explanation for the necessity of an immediate seizure. Underwood v. Foremost Financial Services Corp., 563 So. 2d 1387, 1990 Miss. LEXIS 286 (Miss. 1990).

39. Criminal offenses.

Miss. Code Ann. §97-3-95 was held not to be unconstitutionally vague in a sexual battery case where the inmate admitted that he knew that raping an 11-year-old girl was wrong, but he did it anyway. Calhoun v. State, 849 So. 2d 892, 2003 Miss. LEXIS 233 (Miss. 2003).

Section 97-29-59, which prohibits unnatural intercourse, is not unconstitutionally vague and overbroad. McDonald v. Department of Human Servs., 636 So. 2d 391, 1994 Miss. LEXIS 196 (Miss. 1994).

The statutory law providing for pre-hearing suspension of a driver’s license when the driver refuses to submit to a breathalyzer test is not violative of minimum due process requirements. Lavinghouse v. Mississippi Highway Safety Patrol, 620 So. 2d 971, 1993 Miss. LEXIS 255 (Miss. 1993).

Section 97-3-65, which proscribes rape of a female, does not deny equal protection of the laws to males since it is the victim, not the accused, who must be a female under the wording of this statute; furthermore, by the very nature of the crime, it is the male who must make the criminal assault in order to sustain a conviction and there is no rational basis to attempt to apply this statute to any female accused. Dixon v. State, 519 So. 2d 1226, 1988 Miss. LEXIS 152 (Miss. 1988).

The sexual battery statute, §97-3-95, is not void for vagueness and in violation of due process of law since, the statute as it applies to a male adult who allegedly stuck his finger into the vagina of a 10-year-old girl, gives prior notice to a person of ordinary intelligence that the defendant’s alleged conduct is forbidden, and there are no indications that the statute encourages erratic arrest and convictions. Roberson v. State, 501 So. 2d 398, 1987 Miss. LEXIS 2267 (Miss. 1987).

Due process clause of Fourteenth Amendment does not confer fundamental right on homosexuals to engage in consensual sodomy, even in privacy of home. Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140, 1986 U.S. LEXIS 123 (U.S. 1986), overruled, Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508, 2003 U.S. LEXIS 5013 (U.S. 2003).

Criminal statute (§97-3-65) which establishes crime for rape of female but fails to make it crime to rape male does not violate equal protection clause. Harper v. State, 463 So. 2d 1036, 1985 Miss. LEXIS 1857 (Miss. 1985).

The fondling statute is void since it discriminates against males and denies them equal protection of the law. Tatro v. State, 372 So. 2d 283, 1979 Miss. LEXIS 2080 (Miss. 1979).

Statutory phrase “crime against nature” was not so vague as to violate the due process clause since long use of the phrase to characterize various offenses including sodomy, for which the defendant was indicted, gave fair warning of conduct proscribed. State v. Mays, 329 So. 2d 65, 1976 Miss. LEXIS 1819 (Miss.), cert. denied, 429 U.S. 864, 97 S. Ct. 170, 50 L. Ed. 2d 143, 1976 U.S. LEXIS 2939 (U.S. 1976).

The fact that Code 1942 § 6846 eliminated criminal intent as an element of the offense of possession of marijuana did not render it unconstitutional as violative of the due process clause. Wright v. Edwards, 343 F. Supp. 792, 1972 U.S. Dist. LEXIS 13419 (N.D. Miss.), aff'd, 470 F.2d 980, 1972 U.S. App. LEXIS 6165 (5th Cir. Miss. 1972).

The fact that Code 1942 § 2412.5 applies only to persons of the male sex and is inapplicable to females is not, therefore, violative of the equal protection clause of the Fourteenth Amendment; for there exists rational justification for singling out males for punishment under Code 1942 § 2412.5 and the statute does not rest upon an invidious and patently arbitrary sex classification, but has a sound basis in the physical and psychological difference between men and women. Mississippi State Highway Com. v. Cook, 270 So. 2d 695, 1972 Miss. LEXIS 1253 (Miss. 1972).

The Legislature has the power to render the possession or ownership of slot machines and pay-off tables unlawful, and to provide for their seizure and destruction, without violating the due process clause of the Fourteenth Amendment to the Constitution of the United States. Clark v. Holden, 191 Miss. 7, 2 So. 2d 570, 1941 Miss. LEXIS 141 (Miss. 1941).

A statute penalizing the sale of obscene books or papers defines the offense with sufficient certainty, and therefore is not violative of the due process clause. Williams v. State, 130 Miss. 827, 94 So. 882, 1922 Miss. LEXIS 245 (Miss. 1922).

40. Elections–In general.

Due process rights of defeated candidate in state legislative election, who voluntarily appeared at initial hearing in connection with election contest, thus submitting himself to jurisdiction of legislature, and received hearing before legislature, were not violated in connection with challenge; candidate had been given notice of date of his appearance before legislative committee and had sufficient time to conduct discovery, and had chance to respond to statements by candidate who had been elected. Esco v. Blackmon, 692 So. 2d 74, 1997 Miss. LEXIS 156 (Miss. 1997).

When individual files proper qualifying papers and pays requisite filing fee to become candidate for public office, neither state nor, in case of primary election, political party, may arbitrarily or capriciously deprive him or her of place on ballot; process afforded to individual by party executive committee exceeded his minimum due, where individual informally learned that committee was meeting, had acted negatively upon his candidacy, went uninvited to meeting, and there appeared before committee and fully presented his views and case. Meeks v. Tallahatchie County, 513 So. 2d 563, 1987 Miss. LEXIS 2856 (Miss. 1987).

Access to candidacy is not fundamental right and §23-15-217 places no special burdens on minority parties or independent candidates; state has legitimate interest in preventing election commissioner from seeking another office while he has control of electors that shall vote for all candidates, where there would be potential for mischief were elections commissioner allowed effective control over registration and poll books, for 2 years, for example, then allowed to resign and seek another elective office. Meeks v. Tallahatchie County, 513 So. 2d 563, 1987 Miss. LEXIS 2856 (Miss. 1987).

Section 23-15-217 is not unconstitutionally void for vagueness because ordinary person of common intelligence upon reading it could understand what was allowed and what was not; statute provides two disqualifications upon county election commissioner offering himself as candidate for office: the first, no person holding office of elections commissioner may be candidate for election to any other office at any election held or to be held during 4 year term for which that person has been elected to serve as elections commissioner; second, commissioner may not be candidate for any other office in any election with respect to which he has taken any action in his official capacity; exception to both disqualifications is that incumbent election commissioner may be candidate for re-election. Meeks v. Tallahatchie County, 513 So. 2d 563, 1987 Miss. LEXIS 2856 (Miss. 1987).

The provisions of Article 12 § 251 of the Mississippi Constitution of 1890 and Mississippi Code annotated § 3235 that prescribe a period of 4-months registration for qualified electors before voting in elections are held unconstitutional, void and of no effect, as contrary to the equal protection clause of the Fourteenth Amendment, and the enforcement hereafter of such provisions is enjoined. Ferguson v. Williams, 343 F. Supp. 654, 1972 U.S. Dist. LEXIS 13520 (N.D. Miss. 1972).

The provisions of § 251 of the Mississippi Constitution and of Code § 3235 that prescribe a period of 4 months’ registration for qualified electors before voting in elections are unconstitutional, void, and of no effect, as contrary to the equal protection clause of the Fourteenth Amendment of the United States Constitution.Ferguson v. Williams, 343 F. Supp. 654, 1972 U.S. Dist. LEXIS 13520 (N.D. Miss. 1972).

Residence requirements for qualified elector which require a residence of one year in the state, one year in the county, and 6 months in the precinct or municipality clearly violate the equal protection clause of the Fourteenth Amendment of the Constitution of the United States; nor do they further a compelling state interest. Graham v. Waller, 343 F. Supp. 1, 1972 U.S. Dist. LEXIS 13604 (S.D. Miss. 1972).

Those residence requirements for a qualified elector which requires a residence of one year in the state, one year in the county, and 6 months in the precinct, or municipality, clearly violate the equal protection protection clause of the Fourteenth Amendment to the Constitution of the United States; and those requirements as contained in § 241 of the Mississippi Constitution and Code § 3235 are clearly not necessary to further a compelling state interest, are violative of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States and are null and void. Graham v. Waller, 343 F. Supp. 1, 1972 U.S. Dist. LEXIS 13604 (S.D. Miss. 1972).

A statute which provides for the creation of a second judicial district in a certain county and the holding of an election to determine whether such district shall be created is not unconstitutional as denying equal protection of the laws. Carter v. Harrison County Election Com., 183 So. 2d 630, 1966 Miss. LEXIS 1430 (Miss. 1966).

The provisions of Code 1942 § 3107 which provide a method whereby the state political party conventions may select two slates of presidential electors, one slate pledged to support the nominee of the national political party, and one slate unpledged offends no provision of the United States Constitution, for this Section expressly provides that nothing therein shall prohibit a slate of electors pledged to support the national party candidate from running on the same general election ballot, and Code 1942 § 3260 enables such a slate to get on the ballot upon the petition of 1,000 voters. Gray v. Mississippi, 233 F. Supp. 139, 1964 U.S. Dist. LEXIS 7357 (N.D. Miss. 1964).

The United States Constitution does not require all states to provide voters with an opportunity to vote for pledged electors running under a national party label. Gray v. Mississippi, 233 F. Supp. 139, 1964 U.S. Dist. LEXIS 7357 (N.D. Miss. 1964).

Statute, which provided that when a political party registers, no other political party may use that name which has already been registered, as applied, prevents a political party which had used the word Republican in its name for many years, from using this name because another organization had registered the word Republican, was not unconstitutional as denying the right to reassemble and petition the government or as depriving members of their liberty and property without due process of law, or as denying right of freedom of speech and of press or as destroying liberty of members of the political party to organize and associate themselves with others for political purposes and as denying for them the right to freely exercise their franchise. Hoskins v. Howard, 214 Miss. 481, 59 So. 2d 263, 1952 Miss. LEXIS 492 (Miss. 1952). But see Howard v. Ladner, 116 F. Supp. 783, 1953 U.S. Dist. LEXIS 2307 (D. Miss. 1953), vacated, 347 U.S. 910, 74 S. Ct. 476, 98 L. Ed. 1067, 1954 U.S. LEXIS 2432 (U.S. 1954) (rev’d apparently on jurisdictional grounds in mem op in White v Howard, 347 US 910, 98 L Ed 1067, 74 5 Ct 476, reh’g den’d 347 US 931, 98 L Ed 1083, 74 5 Ct 529), wherein it was held that where a statute which required name of political party to be registered and which also provided that no other political party shall use any name already registered, was construed to deny a political party existing before the passage of the statute the right to continue to use its name because another party has already appropriated that name, this was a denial of due process.

41. –Apportionment and districts, elections.

City’s redistricting plan used to elect alderman and executive committee members violated the one-person/one-vote principle of the Fourteenth Amendment where the city did not dispute that its aldermanic wards had become malapportioned and constitutionally impermissible due to population shifts within the city since the 1990 census and the maximum deviation for the city’s wards was far in excess of the threshold established by judicial precedent. Boddie v. City of Cleveland, 297 F. Supp. 2d 901, 2004 U.S. Dist. LEXIS 3608 (N.D. Miss. 2004).

A Federal District Court’s legislative reapportionment plan for the houses of the Mississippi Legislature which permitted maximum population deviations of 16.5 per cent in the districts for one legislative house and 19.3 per cent in the districts for the other house, failed to meet the requirement of the Equal Protection Clause that legislative districts be as nearly of equal population as is practicable. The deviations could not be justified on the ground of the plan’s deference to Mississippi’s historic respect for the integrity of county boundaries in conjunction with legislative districts where the District Court failed to identify any unique features of the state’s political structure to support its variation from population equality and had been presented with a feasible plan which was less statistically offensive and which also better served the state policy against fragmenting county boundaries. Connor v. Finch, 419 F. Supp. 1072, 1976 U.S. Dist. LEXIS 13515 (S.D. Miss. 1976).

The rule requiring equal apportionment must be held to apply to a governing body which has the broad powers, duties, and responsibilities of the Mississippi county Board of Supervisors, and when the right to an equal voice in selecting the members of that body is diluted and denied by gross misapportionment, the Fourteenth Amendment affords an avenue of relief. Dyer v. Rich, 259 F. Supp. 741, 1966 U.S. Dist. LEXIS 9587 (N.D. Miss. 1966).

The fact that one supervisor’s district of a county contained over 63 percent of the entire population of the county while the population of the other four districts ranged from approximately three percent to 10 percent of the county’s population, such gross imbalance in the population of the several supervisor’s districts constituted a case of invidious discrimination and was violative of the “one person, one vote” rule. Dyer v. Rich, 259 F. Supp. 741, 1966 U.S. Dist. LEXIS 9587 (N.D. Miss. 1966).

42. – Bond elections.

Black voters failed to show that failure to repeal the provision of §37-59-17 requiring that school bond referenda be passed by a 60 percent majority vote rather than a simple majority was motivated by racial factors, and thus they failed to show that the 60 percent requirement violated the Fourteenth and Fifteenth amendments, where the predominant theme of legislators who voted against repeal was opposition to raising property taxes; the fact that some House members perceived that repeal of the 60 percent requirement involved racial considerations did not make it so. Armstrong v. Allain, 893 F. Supp. 1320, 1994 U.S. Dist. LEXIS 20535 (S.D. Miss. 1994), aff'd, 62 F.3d 396, 1995 U.S. App. LEXIS 21306 (5th Cir. Miss. 1995).

In action by registered voters against county board of supervisors alleging that board violated due process right by refusing to hold election on bond issues, refusal did not rise to level of constitutional deprivation, and even if board members, as alleged, improperly eliminated signatures on plaintiffs’ protest petition or viewed required number of signatures too restrictively, proper avenue for such claims was through state election procedures, not action in federal court. Thrasher v. Board of Supervisors, 765 F. Supp. 896, 1991 U.S. Dist. LEXIS 7289 (N.D. Miss. 1991).

Fact that decision of federal court declaring Mississippi poll tax law unconstitutional was handed down on day which was deadline for filing protest petitions against issuance of state aid road bonds, thereby increasing the number of electors in county from 8855 to 13510 and making total number of signatures on petitions insufficient to prevent board of supervisors from issuing bonds without calling election therefor, did not deprive petitioners of their constitutional rights, for the decision of the federal court was a fact beyond the power of the board to alter, but of which they were bound to take cognizance. Ratliff v. Board of Supervisors, 193 So. 2d 137, 1966 Miss. LEXIS 1280 (Miss. 1966).

That the burden of taxation is not spread on a road district in proportion to benefits does not render unreasonably discriminatory a statute authorizing county supervisors to order an election on a proposal to issue road district bonds. Memphis & C. R. Co. v. Bullen, 154 Miss. 536, 121 So. 826, 1928 Miss. LEXIS 199 (Miss. 1928), aff'd, 282 U.S. 241, 51 S. Ct. 108, 75 L. Ed. 315, 1931 U.S. LEXIS 1 (U.S. 1931).

A statute authorizing county supervisors to order an election on a proposal to issue road district bonds on petition of electors, does not deny due process when construed in the light of a state constitutional provision vesting in the supervisors legislative discretion to organize or to refuse to organize road districts petitioned for. Memphis & C. R. Co. v. Bullen, 154 Miss. 536, 121 So. 826, 1928 Miss. LEXIS 199 (Miss. 1928), aff'd, 282 U.S. 241, 51 S. Ct. 108, 75 L. Ed. 315, 1931 U.S. LEXIS 1 (U.S. 1931).

43. Fish and game laws.

A statute conferring authority upon county boards of supervisors to adopt measures for the conservation of local game and fish for the use and consumption of the inhabitants, unconstitutionally discriminates against the inhabitants of other counties. State v. Hill, 98 Miss. 142, 53 So. 411, 1910 Miss. LEXIS 44 (Miss. 1910).

A statute regulating the taking of fish does not violate the due process clause. Ex parte Fritz, 86 Miss. 210, 38 So. 722, 1905 Miss. LEXIS 75 (Miss. 1905).

44. Fraternal organizations.

Code 1942 § 5310.1 which gives to the Governor unlimited discretion to deny a charter to a non-profit corporation is unconstitutional for the reason that it confers an absolute and arbitrary discretion on a state official to grant or deny a right or privilege. Smith v. Ladner, 288 F. Supp. 66, 1968 U.S. Dist. LEXIS 9386 (S.D. Miss. 1968).

Members of a fraternal organization, before being deprived of their offices, memberships and other rights, must have a hearing and opportunity to defend, or to meet the charges preferred against them. Cherry v. Bivens, 185 Miss. 329, 187 So. 525, 1939 Miss. LEXIS 139 (Miss. 1939).

In view of the due process clause, it will be assumed that the governing body of a fraternal organization acted in accordance with its rules and proceeded from adequate cause in forfeiting the charter of a subordinate lodge. Vicksburg Lodge, No. 26 v. Grand Lodge, F. A. M., 116 Miss. 214, 76 So. 572, 1917 Miss. LEXIS 278 (Miss. 1917), cert. denied, 246 U.S. 668, 38 S. Ct. 336, 62 L. Ed. 930, 1918 U.S. LEXIS 2048 (U.S. 1918).

45. Insurance.

The highway patrol had no authority to deliver a stolen pickup truck, which had an altered vehicle identification number and had been seized from an innocent purchaser pursuant to a valid search warrant, to an insurance company, which had paid the owner the full value of the truck under a theft loss insurance policy and was therefore the lawful owner of the vehicle, absent court approval with no advance notice to the innocent purchaser of its intent to do so and without giving him an opportunity contest the matter in a court of competent jurisdiction; the appropriate procedure would have been for the highway patrol, once the truck served no further purpose in the criminal investigation or prosecution, to make a motion in the justice court for authority to release it to the insurance company, and to give the innocent purchaser and the insurance company reasonable notice of such application and an opportunity to be heard; however, the circuit court erred in directing return of the pickup truck to the innocent purchaser without making the insurance company a party to the hearing or giving it any notice of the proceeding, as this was a blatant violation of the insurance company’s right to due process. Weaver v. State, 597 So. 2d 609, 1992 Miss. LEXIS 177 (Miss. 1992).

If it be said that the legislature by reenacting a statute adopted the construction put on it by previous judicial decisions, which had the effect to raise an insurance company’s special agent with limited powers, into its general agent when acting for it in the particulars specified herein, with authority to then make material changes in a policy of insurance issued by the company, in violation of its provisions, this section, so construed, would violate due process of law. Saucier v. Life & Casualty Ins. Co., 189 Miss. 693, 198 So. 625, 1940 Miss. LEXIS 155 (Miss. 1940).

Where on former appeals, terminating in a decision by the Federal Supreme Court, the point raised by demurrer to insurers plea involved the question whether a provision in a fidelity bond requiring any claim thereunder to be made within 15 months after the termination of the the suretyship was subject to the law of Tennessee where the contract was made at a time when the insured was then located in Tennessee, or subject to the laws of Mississippi, to which insured had removed and where the defalcation occurred, and resulted in a determination that the laws of Tennessee governed, such determination did not preclude subsequent litigation as to the effect of such provision under Tennessee decisions as being a condition precedent to liability of the insurer or merely a postponement of the right to sue. Hartford Acci. & Indem. Co. v. Delta & Pine Land Co., 189 Miss. 496, 195 So. 667, 1940 Miss. LEXIS 100 (Miss.), cert. denied, 311 U.S. 610, 61 S. Ct. 25, 85 L. Ed. 387 (U.S. 1940).

Group policy which was performable and was delivered in Alabama was governed by Alabama Laws, notwithstanding that insured employee was a resident of Mississippi, had never been in Alabama and insured employer operated its busses only in Mississippi, and notwithstanding statute requiring court to solve interpretation of contract of insurance according to the laws of Mississippi, since a contrary construction would result in the denial of due process. Protective Life Ins. Co. v. Lamarque, 180 Miss. 243, 177 So. 15, 1937 Miss. LEXIS 104 (Miss. 1937).

Statute imposing personal liability on policy on agent of insurance company unauthorized to do business in State held not unconstitutional as abridging privilege of contract and depriving agent of the defense of agency. Wilkinson v. Goza, 165 Miss. 38, 145 So. 91, 1932 Miss. LEXIS 300 (Miss. 1932).

46. Laborers and materialmen.

City ordinance requiring that at least 40 percent of employees of contractors and subcontractors working on city construction projects be city residents is subject to strictures of privileges and immunities clause even though ordinance is municipal, not state, law, and even though it discriminates among state residents on basis of municipal residence. United Bldg. & Constr. Trades Council v. Camden, 465 U.S. 208, 104 S. Ct. 1020, 79 L. Ed. 2d 249, 1984 U.S. LEXIS 26 (U.S. 1984).

The provisions of Code 1930, §§ 2274 – 2281 whereby the bond of a contractor guaranteeing to an owner the faithful performance of a contract for the construction of a building is declared to inure to the protection of materialmen and laborers as if a guaranty that the contractor shall pay them had been expressed therein, but which does not require that a bond be given, does, not as applied to a bond which expresses an intention to exclude materialmen and laborers, constitute an arbitrary interference with liberty of contract, with resulting violation of the 14th Amendment. Hartford Acci. & Indem. Co. v. N. O. Nelson Mfg. Co., 291 U.S. 352, 54 S. Ct. 392, 78 L. Ed. 840, 1934 U.S. LEXIS 508 (U.S. 1934).

The Fourteenth Amendment does not preclude the creation of liens in favor of materialmen and laborers upon lands improved or affected by their material or labor, even though there be no privity of contract between them and the owner, or of liens upon any moneys due the contractor from the owner or collected by the contractor from the owner. Hartford Acci. & Indem. Co. v. N. O. Nelson Mfg. Co., 291 U.S. 352, 54 S. Ct. 392, 78 L. Ed. 840, 1934 U.S. LEXIS 508 (U.S. 1934).

A statute providing that a building contractor’s bond to the owners shall inure to the benefit of laborers and materialmen, subject to the obligee’s rights, does not unduly abridge liberty of contract. United States Fidelity & Guaranty Co. v. Parsons, 147 Miss. 335, 112 So. 469, 1927 Miss. LEXIS 285 (Miss. 1927).

47. Labor and employment.

Even though a legislative amendment extinguished the employee’s property rights as to his job, he was not denied due process where the Mississippi Department of Corrections terminated more than 160 employees; Laws of 2004, ch. 595, § 13 (Section 13) affected a general class of people due to a mandated reorganization of the department, Miss. Code Ann. §25-9-127(1), and thus, the employee was entitled to due process only as provided under Section 13. Hemba v. Miss. Dep't of Corr., 998 So. 2d 1003, 2009 Miss. LEXIS 1 (Miss. 2009).

Employee was not denied due process when he received notice that he was placed on leave but not informed of the type of leave he was placed on or given a formal notice of suspension where the employee was placed on administrative leave with pay pending the resolution of the investigation, and once the investigation was concluded the employee was properly noticed of the employer’s intention to terminate his employment. Payne v. Miss. Dep't of Mental Health, 964 So. 2d 582, 2007 Miss. App. LEXIS 581 (Miss. Ct. App. 2007).

The “state actor” threshold was not met and, therefore, the plaintiff had no due process right under the Fourteenth Amendment in connection with his employment where the plaiuntiff was the general manager of a private country club and property owners association. Diamondhead Country Club & Prop. Owners Ass'n v. Montjoy, 820 So. 2d 676, 2000 Miss. App. LEXIS 336 (Miss. Ct. App. 2000).

Right to work for living in common occupations of community is of very essence of personal freedom and opportunity that it was purpose of due process clause to secure. Martin v. Memorial Hosp., 130 F.3d 1143, 1997 U.S. App. LEXIS 36424 (5th Cir. Miss. 1997).

Due process clause protects individual’s liberty interest which is viewed as including individual’s freedom to work and earn living and to establish home and position in one’s community. Martin v. Memorial Hosp., 130 F.3d 1143, 1997 U.S. App. LEXIS 36424 (5th Cir. Miss. 1997).

Although Constitution, standing alone, confers no property right in continued employment, such property right can arise pursuant to state law, and once created is subject to constitutional protection. Gardner v. Coffeeville Sch. Dist., 982 F. Supp. 1221, 1997 U.S. Dist. LEXIS 16748 (N.D. Miss. 1997).

Vested property interest in one’s job is protected by due process clause. Gardner v. Coffeeville Sch. Dist., 982 F. Supp. 1221, 1997 U.S. Dist. LEXIS 16748 (N.D. Miss. 1997).

Valid claim of constitutional entitlement to employment must be grounded either in express contract of employment or in some other legal source, such as state statute, local ordinance, or implied contract. Gardner v. Coffeeville Sch. Dist., 982 F. Supp. 1221, 1997 U.S. Dist. LEXIS 16748 (N.D. Miss. 1997).

A county board of supervisors could not bar a chancery clerk, who had temporarily vacated his positions as clerk of the board of supervisors and county auditor, from performing his duties in those positions based upon a claim that the chancery clerk had failed to perform his duties, without affording him a hearing so as to comply with due process requirements. Barlow v. Weathersby, 597 So. 2d 1288, 1992 Miss. LEXIS 196 (Miss. 1992).

A 16-year veteran police officer, who had vested permanent employment rights under the civil service laws, resigned on his own volition and was not “constructively discharged” where he obtained legal counsel when he became aware that he was the object of an investigation and resigned his job on his attorney’s advice. Thus, he could not thereafter pursue an untimely claim that he was denied procedural due process. In order to ensure that a civil service employee preserves his or her procedural due process guarantees, he or she should “stay the course” and remain with the job until relieved from the assignment by an official with statutory authority to fire. While the work environment could become the source of some irritation or embarrassment, such embarrassment will usually afford the civil servant nothing in the way of a procedural due process claim after a voluntary resignation. The instances will be few when a claim of constructive discharge will preserve procedural guarantees that the employee has waived by resigning. The wisdom of “staying the course” is especially crucial in light of state law which deems civil service administrative remedies as the exclusive remedy before relief can be sought in state court. Bulloch v. Pascagoula, 574 So. 2d 637, 1990 Miss. LEXIS 798 (Miss. 1990).

The termination of employees of a state facility for the mentally retarded after the employees refused to take a polygraph examination regarding injuries received by a resident under their supervision did not violate the employees’ federally guaranteed right to due process. Jackson v. Hudspeth Mental Retardation Center, 573 So. 2d 750, 1990 Miss. LEXIS 828 (Miss. 1990).

Court order imposing percentage non-white membership goal on union and establishing fund to be used in remedying discrimination was not violative of equal protection. Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 106 S. Ct. 3019, 92 L. Ed. 2d 344, 1986 U.S. LEXIS 132 (U.S. 1986).

Although a discharged police officer was denied due process in that the dismissal decision was made one day before the time for his response to the charges expired, the dismissed police officer waived this issue by not raising it before the Civil Service Commission prior to his full evidentiary hearing and he was thus precluded from challenging the pretermination procedure on appeal. Little v. Jackson, 375 So. 2d 1031, 1979 Miss. LEXIS 2461 (Miss. 1979), cert. denied, 445 U.S. 933, 100 S. Ct. 1325, 63 L. Ed. 2d 768, 1980 U.S. LEXIS 1198 (U.S. 1980).

A city ordinance prohibiting the operation of self-service automobile fueling stations did not constitute discrimination against self-service automobile fueling station operators, since it classified them in a constitutionally permissible manner and operated on all self-service fueling stations alike, so as to afford public security against the perils of explosions and fires in the use of gasoline and other flammable substances covered by the ordinance, and was a valid and constitutional exercise of the city’s police power. McCardle v. Jackson, 260 So. 2d 482, 1972 Miss. LEXIS 1573 (Miss. 1972).

The operator of an unlawful business, who fails to pay the tax required of him, cannot be heard to complain of discrimination because of the state’s failure to prosecute some of the offenders against its laws. Bishop v. Bailey, 209 Miss. 892, 48 So. 2d 588, 1950 Miss. LEXIS 454 (Miss. 1950).

Act, harmless when done by one, may become public wrong when done by many acting in concert and when it becomes object of conspiracy and operates in restraint of trade police power of state may prohibit it without impairing liberty of contract. Wagley v. Colonial Baking Co., 208 Miss. 815, 45 So. 2d 717, 1950 Miss. LEXIS 304 (Miss. 1950).

State cannot, under guise of protecting public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them. Moore v. Grillis, 205 Miss. 865, 39 So. 2d 505, 1949 Miss. LEXIS 472 (Miss. 1949).

Labor is property and to deprive laborer and employer of right to contract peaceably with one another is to violate Fifth and Fourteenth Amendments which provide that no persons shall be deprived of life, liberty, or property without due process of law, and that no state shall deprive any person within its jurisdiction equal protection of law. Southern Bus Lines, Inc. v. Amalgamated Ass'n of Street, etc., 205 Miss. 354, 38 So. 2d 765, 1949 Miss. LEXIS 435 (Miss. 1949).

This amendment leaves the state ample discretion in dealing with manifestations of force in settlement of industrial conflicts. Southern Bus Lines, Inc. v. Amalgamated Ass'n of Street, etc., 205 Miss. 354, 38 So. 2d 765, 1949 Miss. LEXIS 435 (Miss. 1949).

State court of equity has jurisdiction to protect certified common carrier of passengers by motor vehicle in interstate and intrastate commerce in its property rights in its large investments in state and to prevent, by injunction, through force, intimidation and violence, irreparable injury to persons and property. Southern Bus Lines, Inc. v. Amalgamated Ass'n of Street, etc., 205 Miss. 354, 38 So. 2d 765, 1949 Miss. LEXIS 435 (Miss. 1949).

A statute, applicable only to manufacturers, imposing a penalty for failure to pay wages at least once a month, denies equal protection. Sorenson v. Webb, 111 Miss. 87, 71 So. 273, 1916 Miss. LEXIS 245 (Miss. 1916).

The privileges and immunities of citizens are unconstitutionally abridged by a statute making it a punishable offense for a laborer, share-cropper, or renter, who has made one contract in writing, to enter into another without giving notice of the first. State v. Armstead, 103 Miss. 790, 60 So. 778 (1913), Am. Ann. Cas. 1915B, 495.

A statute making it unlawful for those engaged in manufacturing or repairing to work their employees more than 10 hours per day, except in cases of emergency or public necessity, is valid. State v. J. J. Newman Lumber Co., 102 Miss. 802, 59 So. 923, 1912 Miss. LEXIS 125 (Miss. 1912).

48. Municipal or local services.

Municipalities lacked due process rights which could be offended by amendments to Public Utilities Act of 1956 requiring Public Service Commission (PSC) cancellation of public utility’s certificate of public convenience and necessity before municipal exercise of eminent domain power over utility facilities, despite contention that amended Act, by allowing utility to correct any inadequacies before Commission would cancel certificate, placed option of preventing exercise of municipalities’ power of eminent domain in hands of utilities; municipalities had no due process rights against legislature, and municipalities could not invoke due process clause against utilities because they were private entities. Cities of Oxford, Carthage, Louisville, Starkville & Tupelo v. Northeast Miss. Elec. Power Ass'n, 704 So. 2d 59, 1997 Miss. LEXIS 386 (Miss. 1997).

Homeowner did not have federally protected property interest in fire protection by city; Constitution did not confer affirmative rights to governmental aid. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

In apportioning limited resources, government need not provide same level of benefits to all recipients to satisfy equal protection. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

City’s failure to provide fire service to homeowner in annexed area was rational and thus did not violate homeowner’s right to equal protection, where city demonstrated infeasibility in providing water lines absent significant cost. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

General guarantees of municipal level fire protection in annexation ordinance did not create protected property rights in homeowner personally. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

Property interest in review of his claim was necessary to support homeowner’s assertion that his due process rights were violated by city’s selective payment of claims to some parties from city’s claims fund, but not others. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

There was no record of specific guidelines used by city to pay claims from its claims funds, as required for court to determine whether city discriminated between homeowners in annexed area and residents with water lines in its administration of claims fund, in violation of equal protection. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

Receipt of garbage pick-up services is not life, liberty, or property interest which is protected by Fourteenth Amendment. Taylor v. County of Copiah, 937 F. Supp. 573, 1994 U.S. Dist. LEXIS 20977 (S.D. Miss. 1994), aff'd, 51 F.3d 1042, 1995 U.S. App. LEXIS 8212 (5th Cir. Miss. 1995).

49. Nuisance.

The Mississippi statute forbidding nuisances, §§95-3-1 et seq., is not unconstitutionally vague; adequate notice was clearly provided by the terms of the statute, which were clearly understandable words that left no room for misinterpretation. Collins v. City of Hazlehurst, 151 F. Supp. 2d 749, 2001 U.S. Dist. LEXIS 10765 (S.D. Miss. 2001).

50. Parolees and probationers.

Denial of the inmate’s petition for writ of habeas corpus was affirmed as (1) Miss. Code Ann. §47-7-17 did not create a constitutionally protected liberty interest in parole; thus, the inmate’s right to due process was not violated under U.S. Const. amends. V and XIV, (2) the inmate waived his right to argue that he was prejudiced by the Parole Board’s failure to publish notice of his parole hearing as it was not raised below, and (3) the inmate did not argue in his petition that he had ever been denied the opportunity to call witnesses or that the Parole Board refused to listen to their testimony. Way v. Miller, 919 So. 2d 1036, 2005 Miss. App. LEXIS 471 (Miss. Ct. App. 2005).

Defendant’s due process rights were not violated where the trial judge complied with the minimum requirements of due process, applicable in a revocation hearing, which included written notice of the claimed violations of probation, disclosure to the probationer of evidence against him, an opportunity to be heard and to present witnesses and evidence, the right to confront and cross-examine adverse witnesses, a neutral and detached hearing body, and a written statement by the factfinders as to the evidence relied on and the reasons for revoking probation. Lambert v. State, 904 So. 2d 1150, 2004 Miss. App. LEXIS 1000 (Miss. Ct. App. 2004).

A probationer was afforded due process with regard to the revocation of his probation, notwithstanding his assertion that he did not receive any written notice of the final revocation hearing, where a petition was filed affording the probationer notice that he had violated his probation conditions and he subsequently waived his right to a preliminary probation revocation hearing. Crowell v. State, 801 So. 2d 747, 2000 Miss. App. LEXIS 558 (Miss. Ct. App. 2000).

A prisoner was not denied equal protection in the denial of parole, notwithstanding the assertion that he was treated differently than other similarly situated prisoners, where the prisoner failed to show that the actions of the parole board were motivated by a discriminatory purpose. Justus v. Mississippi State Parole Bd., 750 So. 2d 1277, 1999 Miss. App. LEXIS 586 (Miss. Ct. App. 1999).

Arrestee had no due process protection against being arrested for probation violation of possessing beer, despite his claim that possession of beer was manifestation of depression that would have warranted civil commitment rather than arrest; although arresting officers were not trained mental health professionals, there was no demonstration that arrestee met criteria for insanity. McKlemurry v. Hendrix, 971 F. Supp. 1089, 1997 U.S. Dist. LEXIS 10519 (S.D. Miss. 1997).

Arrestee, who had been arrested for probation violation of possessing beer, did not have equal protection right to civil commitment, rather than incarceration. McKlemurry v. Hendrix, 971 F. Supp. 1089, 1997 U.S. Dist. LEXIS 10519 (S.D. Miss. 1997).

Where parolee is incarcerated, both Fourteenth Amendment due process concerns and the Eighth Amendment’s prohibition against cruel and unusual punishment are implicated, but the presumptive intent to punish derived from the Bell test does not arise in such a case involving conditions of confinement; rather, detained parolee may establish a Fourteenth Amendment due process claim for the conditions of his confinement only where he can present direct evidence of an expressed intent to punish him for the crime for which he has been charged but not yet convicted, but even without the availability of the Bell test, he may still utilize the Eighth Amendment to pursue a separate claim regarding conditions of confinement. Earrey v. Chickasaw County, 965 F. Supp. 870, 1997 U.S. Dist. LEXIS 10990 (N.D. Miss. 1997).

Pretrial detainees are protected from harm by virtue of the Due Process clause of the Fourteenth Amendment, while convicted inmates are protected from harm by the Eighth Amendment’s prohibition against cruel and unusual punishment. Earrey v. Chickasaw County, 965 F. Supp. 870, 1997 U.S. Dist. LEXIS 10990 (N.D. Miss. 1997).

A defendant who allegedly violated the terms of his probation by committing the crime of sale of cocaine was denied due process of law by having his probation revoked immediately after a mistrial was declared in his trial on the charge of sale of cocaine where the revocation was based upon the trial which had just resulted in a mistrial, the defendant never agreed that the court could summarily revoke his probation in the event the trial resulted in anything other than a conviction, and he was not given advance notice of a revocation hearing. Grayson v. State, 648 So. 2d 1129, 1994 Miss. LEXIS 630 (Miss. 1994).

When failure to pay court-imposed fines becomes a possible basis for a probation revocation, the trial court must follow the procedural mandates of §99-19-20(2). Berdin v. State, 648 So. 2d 73, 1994 Miss. LEXIS 637 (Miss. 1994), overruled, Smith v. State, 742 So. 2d 1146, 1999 Miss. LEXIS 260 (Miss. 1999).

A defendant was deprived of due process by a trial court’s failure to conduct an inquiry as to the reason she was delinquent in paying her probation fines before revoking her probation because of her failure to pay those fines. Berdin v. State, 648 So. 2d 73, 1994 Miss. LEXIS 637 (Miss. 1994), overruled, Smith v. State, 742 So. 2d 1146, 1999 Miss. LEXIS 260 (Miss. 1999).

A defendant’s probation revocation violated her due process rights where there was no record of the defendant receiving notice of a probation violation, and the disparity between the court’s statements when probation was revoked, the written and signed order of revocation, and the court’s after-the-fact explanation at the defendant’s post-conviction relief hearing demonstrated a lack of actual notice. Berdin v. State, 648 So. 2d 73, 1994 Miss. LEXIS 637 (Miss. 1994), overruled, Smith v. State, 742 So. 2d 1146, 1999 Miss. LEXIS 260 (Miss. 1999).

A trial court properly denied a parolee’s petition for writ of habeas corpus, in which the parolee claimed that he was not afforded a timely parole revocation hearing, where the admitted evidence showed that the parolee had violated the conditions of his parole by 2 Tennessee felony convictions and failure to waive extradition back to Mississippi; these were reasonable grounds for revoking his parole, and therefore all procedural due process guarantees were met. Godsey v. Houston, 584 So. 2d 389, 1991 Miss. LEXIS 438 (Miss. 1991).

A probationer was not denied due process due to the lack of a preliminary hearing in his probation revocation proceedings, even though a hearing expressly designated as “preliminary” was not held, where 3 hearings were held in the circuit courts and the first and second hearings were, for all practical purposes, equivalent to a preliminary hearing. Additionally, the probationer was not wrongfully denied the opportunity to call his own witnesses where he made a last-minute request during the third hearing to call witnesses who allegedly would have testified in his behalf, the court concluded that the witnesses would have offered no new evidence, the probationer had already admitted that he committed probation violations, and at most the witnesses would have testified in regard to the probationer’s character and would have had no effect on the outcome of the case. Riely v. State, 562 So. 2d 1206, 1990 Miss. LEXIS 240 (Miss. 1990).

The probation-revocation procedure delineated in §47-7-37 is constitutional; the statute includes the minimum due process requirements applicable to parole and probation revocation procedures set forth in Morrissey v Brewer (1972, US) 33 L Ed 2d 27, 92 S Ct 2593 and Gagnon v Scarpelli (1973, US) 36 L Ed 2d 656, 93 S Ct 1756. Riely v. State, 562 So. 2d 1206, 1990 Miss. LEXIS 240 (Miss. 1990).

The Mississippi parole statutes do not create a constitutionally protected liberty interest in the form of an expectation of parole because of the use of the permissive “may” in §47-7-3, which provides that a prisoner “may be released on parole as hereinafter provided,” read in the context of the other provisions of that section and, as well, those of §47-7-17. Thus, Mississippi law did not vest a convicted and incarcerated felon with a liberty interest in parole entitling him to due process of law incident to his application for parole. Harden v. State, 547 So. 2d 1150, 1989 Miss. LEXIS 370 (Miss. 1989).

Parole board members receive absolute immunity in suit for damages by parolee alleging revocation procedures violated his right to due process, and official who, because of organization of government in particular state, performs parole board’s quasi-judicial duties enjoys same protection. Farrish v. Mississippi State Parole Bd., 836 F.2d 969, 1988 U.S. App. LEXIS 1512 (5th Cir. Miss. 1988).

Officers whose activities fell within scope of parole board’s protected function were absolutely immune from liability in suit for damages alleging denial of prisoner’s due process rights where one, acting as hearing officer, had conducted hearing without critical adverse witness even though defendant requested his presence; other officer had served in prosecutorial role during revocation proceeding. Farrish v. Mississippi State Parole Bd., 836 F.2d 969, 1988 U.S. App. LEXIS 1512 (5th Cir. Miss. 1988).

Commissioner of Corrections, whose conduct involved administrative activities which, although they impacted on adjudicatory process, were not integral part of it, merited only qualified immunity where allegation was that procedural due process violation had occurred; this official, who had failed to establish adequate policies or procedures to govern preliminary hearing in such an elementary case, should have known that his conduct violated a clearly established right and was therefore liable for damages. Farrish v. Mississippi State Parole Bd., 836 F.2d 969, 1988 U.S. App. LEXIS 1512 (5th Cir. Miss. 1988).

Absolute discretion conferred on parole board in Mississippi affords prisoner no constitutionally recognized liberty interest in being released on parole. Scales v. Mississippi State Parole Bd., 831 F.2d 565, 1987 U.S. App. LEXIS 14969 (5th Cir. Miss. 1987).

Contention that prisoner is denied equal protection because only one black person is member of parole board is meritless. Scales v. Mississippi State Parole Bd., 831 F.2d 565, 1987 U.S. App. LEXIS 14969 (5th Cir. Miss. 1987).

51. Prisoners.

Inmate’s allegations of a Fourteenth Amendment violation against a dispatcher did not comport with the stringent requirements necessary to maintain a claim of deliberate indifference by the individual defendant; the episodic act or omission of a state jail official did not violate a pretrial detainee’s constitutional right to be secure in his basic human needs, such as medical care and safety, unless the detainee demonstrated that the official acted or failed to act with deliberate indifference to the detainee’s needs. Harvison v. Greene County Sheriff Dep't, 899 So. 2d 922, 2005 Miss. App. LEXIS 214 (Miss. Ct. App. 2005).

Inmate had no cause of action under the Fourteenth Amendment because any due process claim had to arise from the Mississippi Department of Corrections’ own misapplication of reasonable prisoner classification regulations; the allegations and attached documents did not support a finding of arbitrarinous or capriciousness. Hurns v. Miss. Dep't of Corr., 878 So. 2d 223, 2004 Miss. App. LEXIS 162 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 918 (Miss. 2004).

In instances where inmate’s “failure to protect” claim arises out of an episodic act or omission on the part of a jail official, the appropriate standard to be applied is identical regardless of the inmate’s custodial status as pretrial detainee or convicted inmate, requiring demonstration of subjective knowledge of a substantial risk of serious harm and the failure to take reasonable measures to abate it, but where a pretrial detainee challenges a general condition of confinement, the court presumes intent on the part of prison officials and looks to whether the challenged condition of confinement is reasonably related to a legitimate governmental objective. Earrey v. Chickasaw County, 965 F. Supp. 870, 1997 U.S. Dist. LEXIS 10990 (N.D. Miss. 1997).

A prisoner has a constitutional right of access to the civil courts founded in the due process clause of the 14th Amendment, though this right is not absolute; at a minimum, due process requires that absent a countervailing state interest of overriding significance, prisoners must be afforded meaningful access to the courts and an opportunity to be heard. In re Merrell, 658 So. 2d 50, 1995 Miss. LEXIS 336 (Miss. 1995).

In determining whether to allow a prisoner to make a personal appearance and give testimony in a civil action wherein he or she is a party/litigant, the trial judge should take into consideration the following guidelines: (1) the costs and inconvenience of transporting the prisoner from the place of incarceration to the courtroom, (2) any potential danger or security risk which the presence of the particular inmate would pose to the court, (3) the substantiality of the matter at issue, (4) the need for an early determination of the matter, (5) the possibility of delaying trial until the prisoner is released, (6) the probability of success on the merits, (7) the integrity of the correctional system, (8) the interest of the inmate in presenting his or her testimony in person rather than by deposition, (9) the possibility of a change of venue to the appropriate trial court in the county where the prisoner is domiciled when legally permissible, and (10) any other appropriate criteria which the trial judge, in his or her sound discretion, might consider. In re Merrell, 658 So. 2d 50, 1995 Miss. LEXIS 336 (Miss. 1995).

In order to state a cognizable Eighth Amendment claim against prison officials, a prisoner must allege causative acts or omissions demonstrating “subjective recklessness” by the defendants. Bilbo v. Thigpen, 647 So. 2d 678, 1994 Miss. LEXIS 598 (Miss. 1994).

Although prisoners do not enjoy an absolute constitutional right to unrestricted visitation, and their visitation privileges are subject to the discretion of prison officials, restrictions on an inmate’s visitation privileges should not be imposed arbitrarily or discriminatorily. Puckett v. Stuckey, 633 So. 2d 978, 1993 Miss. LEXIS 566 (Miss. 1993).

In inmate suit for preliminary injunction against sheriff’s alleged utilization of illegal force upon inmates to extract information, report in recommendation of Magistrate Judge was adopted, holding that inmate was entitled to preliminary injunction against such use of force, on basis that any physical violence by prison officers against person being interrogated who poses no threat to safety of officers or others, violates due process. Cohen v. Coahoma County, 805 F. Supp. 398, 1992 U.S. Dist. LEXIS 20670 (N.D. Miss. 1992).

Neither due process nor equal protection rights are violated by requiring a prisoner to demonstrate some specific need before requiring the State or county to furnish the prisoner with free copies of trial records in post-conviction relief proceedings. The State is not required to subsidize a “fishing expedition” for grounds upon which to attack a conviction and sentence, merely because the prisoner is indigent. Fleming v. State, 553 So. 2d 505, 1989 Miss. LEXIS 476 (Miss. 1989), but see De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

The unexplained failure to award an inmate meritorious earned time did not amount to a violation of his federal and state constitutional rights to due process and equal protection, since an inmate’s earning of “time” is a matter of grace or privilege under §47-5-142, which provides that “meritorious earned time may be awarded.” Since correctional officials are vested with discretionary power to award time under certain conditions, inmates are not entitled to it. Ross v. State, 584 So. 2d 777, 1991 Miss. LEXIS 483 (Miss. 1991).

Neither the due process clause nor Mississippi law gives rise to a protected liberty interest in the form of an expectation of release on probation. There is no liberty interest in release pursuant to the provisions of §47-7-47, which creates a procedure whereby the courts may place a prisoner on probation, since the language of the statute is permissive rather than mandatory in nature; the statute vests absolute discretion in both the Department of Corrections and the court in determining whether probation should be recommended and granted, and this discretion affords a prisoner no constitutionally recognized liberty interest. Smith v. State, 580 So. 2d 1221, 1991 Miss. LEXIS 326 (Miss. 1991).

A prisoner did not have a protected liberty interest in being transferred from a county correctional facility to a state prison, absent a state law or regulation or prison policy or procedure conditioning such a transfer on proof of misbehavior or some other event. McFadden v. State, 580 So. 2d 1210, 1991 Miss. LEXIS 306 (Miss. 1991).

A prison inmate does not have a protected liberty interest in a particular job assignment under the due process clause. However, a liberty interest may be created by state law or prison regulation. McFadden v. State, 580 So. 2d 1210, 1991 Miss. LEXIS 306 (Miss. 1991).

Inmates who are placed in administrative segregation have no constitutional basis for demanding the same privileges as those inmates in the general prison population since prison officials have the discretion to determine whether and when to provide prisoners with privileges such as showers, exercise, visitation, and access to personal property. Thus, the 5 hours a week of exercise plus nightly showers of 15 minutes which were provided to an inmate confined to administrative segregation did not constitute cruel and unusual punishment. Additionally, the procedures provided when the inmate was placed in administrative segregation satisfied the due process clause where the inmate received notice of detention and a hearing on the matter. Terrell v. State, 573 So. 2d 730, 1990 Miss. LEXIS 784 (Miss. 1990).

An inmate was properly denied credit for time served upon her original sentence for time spent out of prison on parole prior to its revocation, even though credit is allowed for time spent on work release, which is functionally similar to parole; nor did denying her credit for time served while on parole deprive her of rights secured under the double jeopardy clause, deny her due process of law, or subject her to an ex post facto law. Segarra v. State, 430 So. 2d 408, 1983 Miss. LEXIS 2578 (Miss. 1983).

A person may not be involuntarily committed to a state mental institution unless (1) there is clear and convincing evidence that the person is in substantial need of mental treatment, and (2) the state renders to him a minimally adequate course of care and treatment; accordingly, a deceased had a substantive right not to be “warehoused,” and if he was substantially mentally ill, the state’s right to commit him involuntarily was conditioned on its affording him minimally adequate care and treatment. Chill v. Mississippi Hospital Reimbursement Com., 429 So. 2d 574, 1983 Miss. LEXIS 2563 (Miss. 1983).

Where petitioner, who had been charged with several criminal offenses, had been confined at the state mental hospital for over nine years under a circuit court order on account of his mental incapacity to stand trial, and where the evidence showed that he was not making any progress and there was no substantial probability that he would attain the capacity to stand trial in the foreseeable future, the due process and equal protection clauses of the United States and Mississippi constitutions required that the state initiate proceedings at the next term of the circuit court to have petitioner committed to a state mental institution under the civil commitment statutes or that he be released from custody. Brown v. Jaquith, 318 So. 2d 856, 1975 Miss. LEXIS 1453 (Miss. 1975).

The district court’s findings that the disciplinary procedures at the Mississippi State Penitentiary failed to meet the minimum procedural requisites of the Fourteenth Amendment, and the relief therein granted, were affirmed. Gates v. Collier, 501 F.2d 1291, 1974 U.S. App. LEXIS 6790 (5th Cir. Miss. 1974).

Where a condemned prisoner was confined in maximum security cell block in a state penitentiary with restrictions as to visits from friends and attorneys and conversations and where there were other condemned men awaiting execution, this confinement was not a violation of the equal protection and due process clauses of the Constitution. Wetzel v. Wiggins, 226 Miss. 671, 85 So. 2d 469, 1956 Miss. LEXIS 448 (Miss.), cert. denied, 352 U.S. 807, 77 S. Ct. 80, 1 L. Ed. 2d 39, 1956 U.S. LEXIS 400 (U.S. 1956).

53. Professional regulation.

Massage therapist’s due process rights were not violated when a Mississippi State Board of Massage Therapy member investigated the client’s complaint against the therapist and later participated in the administrative hearing because the Board member’s dual capacity as investigator and hearing participant was procedurally correct. Dawson v. Miss. State Bd. of Massage Therapy, 949 So. 2d 829, 2006 Miss. App. LEXIS 761 (Miss. Ct. App. 2006).

Plaintiff physician was not deprived of any procedural due process property interest when defendant hospital denied him further access to its end stage renal disease (ESRD) units for out-patient kidney dialysis upon severance of his practice from that of second physician, with whom hospital had exclusive medical director contract under which only he or his designated representative could perform chronic, outpatient, kidney dialysis in ESRD units; source of plaintiffs property interest was not hospital’s grant to him of full medical staff privileges when he became associated with second physician, but rather, it was exclusive medical director contract, and such interest was extinguished when association between physicians ended. Martin v. Memorial Hosp., 130 F.3d 1143, 1997 U.S. App. LEXIS 36424 (5th Cir. Miss. 1997).

Even if plaintiff nephrologist were deprived of liberty interest as result of defendant hospital’s refusal to grant him further access to its end stage renal disease (ESRD) units for out-patient kidney dialysis upon severance of his practice from that of physician with whom hospital had exclusive medical director contract, nephrologist was not entitled to procedural due process, i.e., hearing, because that deprivation occurred as result of quasi-legislative decision not based on his individual competency or qualifications as nephrologist. Martin v. Memorial Hosp., 130 F.3d 1143, 1997 U.S. App. LEXIS 36424 (5th Cir. Miss. 1997).

Hospital’s exclusive arrangement with physician for provision of out-patient kidney dialysis on hospital’s end stage renal disease (ESRD) units was not arbitrary or capricious, and thus did not violate nephrologist’s right to substantive due process; having single doctor administer all chronic, out-patient dialysis was logistically and legally desirable, and at least in part the goal of exclusive arrangement was to ensure that all patients received same high quality dialysis treatment. Martin v. Memorial Hosp., 130 F.3d 1143, 1997 U.S. App. LEXIS 36424 (5th Cir. Miss. 1997).

Procedure followed by State Board of Nursing in revoking nurse’s license did not violate nurse’s statutory or constitutional due process rights; nurse was informed of time and place of hearing, that she had right to appear, and of her right to produce evidence and witnesses, of which she took advantage, and no showing was made that Board prejudged her or had pecuniary interest in revocation of her license. Mississippi Bd. of Nursing v. Hanson, 703 So. 2d 239, 1997 Miss. LEXIS 420 (Miss. 1997).

Physician was collaterally estopped from relitigating issue of whether hospital’s termination of his surgical privileges was state action for purposes of due process clause of State Constitution, where federal court had previously determined that hospital’s actions were not state action for purpose of Federal Constitution. Wong v. Stripling, 700 So. 2d 296, 1997 Miss. LEXIS 385 (Miss. 1997).

Physician’s procedural due process rights were satisfied in proceedings that resulted in denial of reinstatement of medical license when physician was provided with opportunity to be heard, to present witnesses, to cross-examine adverse witnesses, to be represented by attorney of physician’s choice, and physician was given ample notice of hearings and detailed explanation of why license was not reinstated. Montalvo v. Mississippi State Bd. of Medical Licensure, 671 So. 2d 53, 1996 Miss. LEXIS 65 (Miss. 1996).

The complaint procedure established by the Supreme Court for attorney disciplinary proceedings does not violate due process on the ground that it does not provide for an appeal to any other state court. Asher v. The Mississippi Bar, 661 So. 2d 722, 1995 Miss. LEXIS 449 (Miss. 1995).

The complaint procedure established by the Supreme Court for attorney disciplinary proceedings does not violate due process on the ground that members of the complaint tribunal are also members of the Mississippi Bar. Asher v. The Mississippi Bar, 661 So. 2d 722, 1995 Miss. LEXIS 449 (Miss. 1995).

The balancing test used in criminal proceedings for determining whether the right to a speedy trial has been violated is not applicable in an attorney disciplinary action; although attorney disciplinary proceedings are quasi-criminal in nature, they are not governed by the same rules that are utilized in criminal proceedings. Barrett v. The Mississippi Bar, 648 So. 2d 1154, 1995 Miss. LEXIS 27 (Miss. 1995).

Rule 11, Miss. R. Discipline, which permits the partners of a suspended or disbarred attorney to continue to represent any client affected by the suspension or disbarment, does not violate a sole practitioner’s right to equal protection; Rule 11 has an identical impact on all lawyers since a suspended or disbarred attorney could recommend a non-partner lawyer to represent the client who would be willing to share the fee derived from the representation. Hall v. The Mississippi Bar, 631 So. 2d 120, 1993 Miss. LEXIS 568 (Miss. 1993).

A pharmacist, whose license was revoked by the Board of Pharmacy, was not deprived of his right to retain counsel, in spite of his argument that he was denied procedural due process when the Board’s agent implied that the charges against him were not serious in nature and thereby coerced him into not retaining counsel, where the agent merely stated that the decision to retain an attorney for the hearing was the pharmacist’s choice and told him “You may just want to go down and talk to them, though,” the pharmacist received notice that clearly highlighted his right to retain counsel, and the notice clearly stated that the charges could result in suspension or revocation of his pharmacy license. Duckworth v. Mississippi State Bd. of Pharmacy, 583 So. 2d 200, 1991 Miss. LEXIS 424 (Miss. 1991).

An attorney who was suspended from the practice of law following a felony conviction in the federal courts and who was disbarred 3 years later at the conclusion of his appeal of the federal conviction, was not denied equal protection or due process rights on the ground that he would be required to wait 3 years longer before reinstatement than an attorney who chose not to appeal a conviction. All disbarred attorneys are treated equally; the disparity of time arises when an attorney resists the disbarment pending his or her appellate procedures. Had the attorney accepted the disbarment following his conviction, no delay in entering a final order of disbarment would have resulted, and therefore there was no unequal treatment or denial of due process. Additionally, the attorney’s disbarment was not retroactive to the date of his suspension since the attorney’s initiative delayed the entry of the final order; retroactivity cannot be applied when the attorney seeks a stay of the final order. Mississippi State Bar v. Nixon, 562 So. 2d 1288, 1990 Miss. LEXIS 264 (Miss. 1990).

Physician whose hospital staff privileges were suspended was not denied procedural due process where statutory scheme provided for appeal to the Chancery Court and to provision for appeal to Chancery Court action was improperly brought in Federal Court and had to be dismissed; 30-day period for appeal to Chancery Court in such matter did not violate Supremacy Clause of Article VI of the US Const. Caine v. Hardy, 715 F. Supp. 166 (S.D. Miss. 1989), rev’d 905 F.2d 858, reh’g Caine v. Hardy, 943 F.2d 1406, 1991 U.S. App. LEXIS 22455 (5th Cir. Miss. 1991), cert. denied, 503 U.S. 936, 112 S. Ct. 1474, 117 L. Ed. 2d 618, 1992 U.S. LEXIS 1727 (U.S. 1992).

Section 15-1-41 does not violate the equal protection clause of the Fourteenth Amendment on the basis that it limits actions against architects and contractors but excludes similarly situated persons such as owners and suppliers. Reich v. Jesco, Inc., 526 So. 2d 550, 1988 Miss. LEXIS 307 (Miss. 1988).

Since Bar disciplinary proceedings are inherently adversarial proceedings of a quasi-criminal nature, in the course of those proceedings there is secured to the accused attorney the right to due process of law, and within such secured due process right is the right of the accused attorney to have access to compulsory process for obtaining attendance of witnesses at critical stages of the proceedings. Attorney K. v. Mississippi State Bar Asso., 491 So. 2d 220, 1986 Miss. LEXIS 2522 (Miss. 1986).

Grandfather clause promulgated by Mississippi Board of Nursing for certification of nurse anesthetist which allows certification of nurse anesthetist without examination only for limited period of time while allowing registered nurses to become licensed at any time upon payment of fee denies nurse anesthetist equal protection. Mississippi Bd. of Nursing v. Belk, 481 So. 2d 826, 1985 Miss. LEXIS 2343 (Miss. 1985).

In an action arising out of the imposition of three separate sanctions against a realtor by a non-profit professional association of realtors, the trial court erred in enjoining the association from enforcing sanctions consisting of a severe reprimand, probation for a period of six months, and suspension of membership for a period of 30 days where the disciplinary proceedings were in full compliance with the constitution and bylaws of the association and the member had been afforded every element of due process; however, imposition of a fine of $300 was properly enjoined where there was no schedule of fines set out by the constitution, by-laws or rules and regulations of the association. Before a fine can be imposed by a private association, there must be a schedule of maximum fines that may be imposed to which schedule each member has agreed to be bound by joining the association. Multiple Listing Service, Inc. v. Century 21 Cantrell Real Estate, Inc., 390 So. 2d 982, 1980 Miss. LEXIS 2145 (Miss. 1980).

Code 1972 §25-31-1, which required district attorneys to be practicing lawyers admitted to practice in Mississippi for at least two years prior to taking office, does not violate the Voting Rights Act of 1965, does not deny the plaintiff equal protection of the law, and does not infringe upon his first amendment rights. Waide v. Waller, 402 F. Supp. 922, 1975 U.S. Dist. LEXIS 15781 (N.D. Miss. 1975).

The provision of the State Bar Act which provides for automatic suspension of a member who fails to pay the required dues but gives a suspended member power to reinstate himself by payment of delinquent dues, does not violate any constitutional rights because of failure to provide for a judicial hearing. Board of Comm'rs v. Collins, 214 Miss. 782, 59 So. 2d 351, 1952 Miss. LEXIS 521 (Miss. 1952).

Code 1942 §§ 8905 – 8911, establishing a class of certified public accountants, providing for their regulation and prohibiting others from holding themselves out as such, is a valid exercise of the police power of the State. Moore v. Grillis, 205 Miss. 865, 39 So. 2d 505, 1949 Miss. LEXIS 472 (Miss. 1949).

Code 1942 § 8912, prohibiting under penalty any person other than a certified public accountant or an attorney from receiving compensation for making or preparing any tax return, is not a reasonable exercise of the police power, is not in promotion of the public welfare, and is without reasonable relation to the advancement of public convenience, health, morals, or safety, is arbitrarily discriminatory, and is an infringement of the right to pursue an occupation gainfully, and hence is in violation of the Constitution. Moore v. Grillis, 205 Miss. 865, 39 So. 2d 505, 1949 Miss. LEXIS 472 (Miss. 1949).

Statute requiring applicant for registration as barber to pass satisfactory examination conducted by board of examiners held not unconstitutional as leaving determination of barbers’ qualifications entirely to board’s arbitrary discretion. Clark v. State, 169 Miss. 369, 152 So. 820, 1934 Miss. LEXIS 24 (Miss. 1934).

Statute regulating practice of barbering in all municipalities of 500 or more inhabitants held not local nor invalid as making arbitrary or unreasonable classification. Clark v. State, 169 Miss. 369, 152 So. 820, 1934 Miss. LEXIS 24 (Miss. 1934).

A barber cannot complain of the exemption of beauty operators from application of statute regulating practice of barbering as arbitrary and unreasonable. Clark v. State, 169 Miss. 369, 152 So. 820, 1934 Miss. LEXIS 24 (Miss. 1934).

The state may prohibit physicians from practicing without a license. State v. Tucker, 102 Miss. 517, 59 So. 826, 1912 Miss. LEXIS 82 (Miss. 1912).

54. Public health.

State statute requiring that all second trimester abortions be performed in general acute care facilities is unconstitutional, since it unreasonably infringes upon women’s constitutional right to obtain abortion; however, requirements that pathology report be made, that minor secure parental or judicial consent, and that second physician be present are constitutional. Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476, 103 S. Ct. 2517, 76 L. Ed. 2d 733, 1983 U.S. LEXIS 64 (U.S. 1983).

City ordinance requiring all second trimester abortions to be performed in hospital violates due process clause, and provisions of ordinance dealing with parental consent, informed consent, 24-hour waiting period, and disposal of fetal remains are unconstitutional. City of Akron v. Akron Ctr. for Reproductive Health, 462 U.S. 416, 103 S. Ct. 2481, 76 L. Ed. 2d 687, 1983 U.S. LEXIS 63 (U.S. 1983), overruled in part, Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674, 1992 U.S. LEXIS 4751 (U.S. 1992).

Plaintiff, the father of a six-year-old boy, was not entitled to an injunction against a school board compelling admission of his son to elementary school without the vaccinations required by statute, despite plaintiffs contentions that he had not permitted his son to be vaccinated due to his religious beliefs and that his son should be permitted to attend school under the religious exemption provided by the statute, since the statutory immunization requirement serves an overriding and compelling public interest and is a reasonable and constitutional exercise of the police power; further, the exemption for children of parents whose religious beliefs conflict with the immunization requirements is void since it discriminates against children whose parents have no such religious convictions, in violation of the Fourteenth Amendment to the United States Constitution. Brown v. Stone, 378 So. 2d 218, 1979 Miss. LEXIS 2544 (Miss. 1979), cert. denied, 449 U.S. 887, 101 S. Ct. 242, 66 L. Ed. 2d 112, 1980 U.S. LEXIS 3404 (U.S. 1980).

A law creating a board with authority to quarantine and treat animals infested with cattle fever ticks does not unconstitutionally interfere with property rights. Moss v. Mississippi Live Stock Sanitary Board, 154 Miss. 765, 122 So. 776, 1929 Miss. LEXIS 176 (Miss. 1929).

A requirement of the state board of health that all cows used in the dairy business be examined annually by a competent veterinarian does not violate the 14th Amendment. Hawkins v. Hoye, 108 Miss. 282, 66 So. 741, 1914 Miss. LEXIS 201 (Miss. 1914).

55. Public improvements.

The legislature may create taxing districts to meet the expense of local improvements, and may fix the basis of taxation without encountering the Fourteenth Amendment unless its action is palpably arbitrary or a plain abuse. Yazoo & M. V. R. Co. v. Board of Mississippi Levee Comm'rs, 188 Miss. 889, 195 So. 704, 1940 Miss. LEXIS 65 (Miss. 1940).

Laws 1934, c 246 did not deny due process of law to abutting property owners in paving assessment proceedings thereunder. City of Clarksdale v. Fitzgerald, 181 Miss. 135, 179 So. 269, 1938 Miss. LEXIS 55 (Miss. 1938).

A tax imposed to pay for road improvements on all property, real and personal, in a road improvement district on an ad valorem basis without apportionment according to benefits, is, where there is evidence warranting the finding of appreciable benefit to the taxpayer, not so palpably arbitrary or unreasonably discriminatory as to offend the due process and equal protection clauses of the Fourteenth Amendment. Memphis & C. R. Co. v. Pace, 282 U.S. 241, 51 S. Ct. 108, 75 L. Ed. 315, 1931 U.S. LEXIS 1 (U.S. 1931).

A statute authorizing municipal authorities to organize a special improvement district, and assess the cost thereof against the abutting property owners, would not violate the due process clause, if not providing for notice to such owners of the purpose of such authorities so to do. Swayne v. Hattiesburg, 147 Miss. 244, 111 So. 818, 1927 Miss. LEXIS 277 (Miss. 1927), aff'd, 276 U.S. 599, 48 S. Ct. 320, 72 L. Ed. 724, 1928 U.S. LEXIS 126 (U.S. 1928).

A statute does not violate the requirement of due process because authorizing abutting property to be charged with the engineering and inspection cost of special street improvement and the cost of issuance of bonds to raise funds to pay for the improvement, they being part of the actual cost of the improvement. Swayne v. Hattiesburg, 147 Miss. 244, 111 So. 818, 1927 Miss. LEXIS 277 (Miss. 1927), aff'd, 276 U.S. 599, 48 S. Ct. 320, 72 L. Ed. 724, 1928 U.S. LEXIS 126 (U.S. 1928).

Front foot street improvement assessments, being an exercise of the taxing power, do not take property without due process, even as to property so burdened more than it is benefited. Swayne v. Hattiesburg, 147 Miss. 244, 111 So. 818, 1927 Miss. LEXIS 277 (Miss. 1927), aff'd, 276 U.S. 599, 48 S. Ct. 320, 72 L. Ed. 724, 1928 U.S. LEXIS 126 (U.S. 1928).

An exercise of legislative discretion in creating local assessment districts, or a change from one system of improvement assessments to another, is not precluded by the equal protection clause. Stingily v. Jackson, 140 Miss. 19, 104 So. 465, 1925 Miss. LEXIS 235 (Miss. 1925).

A statute giving a majority of resident owners of abutting property power to defeat a proposed street improvement does not deny equal protection to nonresidents. Union Sav. Bank & Trust Co. v. Jackson, 122 Miss. 557, 84 So. 388, 1920 Miss. LEXIS 454 (Miss. 1920).

A public improvement statute which gives property owners the right to appear and make objections to a proposed improvement, and which provides for notice of assessment and the hearing of objections thereto, and for an appeal to the courts, affords due process. Union Sav. Bank & Trust Co. v. Jackson, 122 Miss. 557, 84 So. 388, 1920 Miss. LEXIS 454 (Miss. 1920).

56. Railroads – In general.

Statute imposing upon railroads the duty to install and maintain gates at grade crossings whenever the public service commission shall declare the safety of the public to require it was a legitimate exercise of the police power of the state, and the fact that the statute does not provide for allocation between the railroad and a local community of the cost of installing the protective gates does not render the statute unconstitutional as a deprivation of property without due process of law. Mississippi Public Service Com. v. Alabama G. S. R. Co., 294 So. 2d 173, 1974 Miss. LEXIS 1817 (Miss. 1974).

In an action to enjoin the enforcement of public service commission order requiring plaintiff railroad to continue its passenger service between certain points, on ground that such order violated constitutional rights of the plaintiff, the crucial question before the United States District Court was not of federal jurisdiction but of comity and the usual rule of comity did not apply because there was no state court of equitable jurisdiction to which the railroad could go for equitable relief to protect its federal rights against, the confiscation of its property. Illinois C. R. Co. v. Mississippi Public Service Com., 135 F. Supp. 304, 1955 U.S. Dist. LEXIS 2574 (D. Miss. 1955).

A statute authorizing an attachment suit against a nonresident railroad doing business in the county where a necessary defendant may be found, but where the railroad has no line of road or agent upon whom process may be served, does not deprive such nonresident railroad company of the equal protection of the laws. Clark v. Louisville & N. R. Co., 158 Miss. 287, 130 So. 302, 1930 Miss. LEXIS 51 (Miss. 1930).

A statute empowering the railroad commission to order railroads to construct sidetracks, spur tracks, loop or switch tracks connecting their main line with industrial plants, at the expense of the one applying for their construction unless the commission shall otherwise order, if they can be constructed without causing undue hazard to the property or trains of the railroad company, violates the due process and equal protection clauses of the Fourteenth Amendment. McInnis v. New Orleans & N. E. R. Co., 109 Miss. 482, 68 So. 481, 1915 Miss. LEXIS 182 (Miss. 1915).

The Mississippi statute imposing a penalty of $25 for a failure to settle a claim for damages to an intrastate shipment between two points on the carrier’s line within 60 days from the giving of the notice of claim does not deny due process or equal protection, where upon the trial the actual damages were assessed at the sum stated in the notice. Yazoo & M. V. R. Co. v. Jackson Vinger Co., 226 U.S. 217, 33 S. Ct. 40, 57 L. Ed. 193, 1912 U.S. LEXIS 2147 (U.S. 1912).

A statute requiring railroads to settle claims for lost or damaged freight between two points on the same line within 60 days from the filing of notice of loss and for freight lost or damaged between points on different lines within 90 days does not violate the equal protection clause. Mobile & O. R. Co. v. Brandon, 98 Miss. 461, 53 So. 957, 1910 Miss. LEXIS 84 (Miss. 1910).

Equal protection is not denied by a law requiring railroads to establish and maintain a depot in every incorporated city, town or village through which their lines pass. Southern R. Co. v. State, 95 Miss. 657, 48 So. 236, 1909 Miss. LEXIS 200 (Miss. 1909).

The application in the case of an incorporated village on a branch operated at a loss, of a statute requiring a railroad to establish and maintain depots, does not violate the due process clause where the operation of the entire railroad in the state is not unprofitable. Southern R. Co. v. State, 95 Miss. 657, 48 So. 236, 1909 Miss. LEXIS 200 (Miss. 1909).

Railroads may be required to maintain cattle guards where their tracks run through enclosed lands. Yazoo & M. V. R. Co. v. Harrington, 85 Miss. 366, 37 So. 1016, 1904 Miss. LEXIS 173 (Miss. 1905).

A railroad company empowered by its charter from time to time to fix, regulate, and receive the tolls and charges to be received by it for transportation, is not deprived of its property without due pro cess of law or denied the equal protection of the laws by a state statute creating a commission to provide for the regulation of freight and passenger rates, to prevent unjust discrimination, and to enforce police regulations affecting railroad companies doing business in the state. Stone v. Farmers' Loan & Trust Co., 6 S. Ct. 388 (U.S. 1886).

The creation of a state railroad commission, charged with the duty of supervising railroads is not violative of the Fourteenth Amendment. Stone v. Yazoo & Miss. V. Ry., 62 Miss. 607, 1885 Miss. LEXIS 120 (Miss. 1885).

57. – Abolishing fellow-servant rule, railroads.

A statute abolishing the fellow-servant rule in action for injuries to railroad employees is not repugnant to the equality clause. Givens v. Southern R. Co., 94 Miss. 830, 49 So. 180, 1909 Miss. LEXIS 372 (Miss. 1909); Easterling Lumber Co. v. Pierce, 106 Miss. 672, 64 So. 461, 1914 Miss. LEXIS 4 (Miss.), writ of error dismissed, 235 U.S. 380, 35 S. Ct. 133, 59 L. Ed. 279, 1914 U.S. LEXIS 980 (U.S. 1914).

A statute abrogating the fellow-servant rule as to railway employees does not offend the equal protection clause because construed as applying to the foreman and a section crew charged with keeping the track in repair. Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U.S. 35, 31 S. Ct. 136, 55 L. Ed. 78, 1910 U.S. LEXIS 2076 (U.S. 1910); New Orleans, M. & C. R. Co. v. Cole, 101 Miss. 173, 57 So. 556, 1911 Miss. LEXIS 117 (Miss. 1912).

58. – Creating presumption of negligence, railroads.

A statute providing that proof of injury from a derailment is prima facie evidence of the railroad’s want of reasonable skill and care in operation merely casts upon the railroad the duty of producing some evidence to counter the inference of negligence the statute creates, and does not violate the Fourteenth Amendment. Alabama G. S. R. Co. v. Allied Chemical Corp., 501 F.2d 94, 1974 U.S. App. LEXIS 6810 (5th Cir. Miss. 1974).

The Mississippi statute under which in actions against railway companies for damages done to persons or property, proof of injury inflicted by the running of locomotives or cars is made prima facie evidence of negligence, does not violate the equal protection or due process clauses. Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U.S. 35, 31 S. Ct. 136, 55 L. Ed. 78, 1910 U.S. LEXIS 2076 (U.S. 1910); New Orleans, M. & C. R. Co. v. Cole, 101 Miss. 173, 57 So. 556, 1911 Miss. LEXIS 117 (Miss. 1912).

59. Roads and highways.

Landowner’s claim that county maintenance activities along roads within his property damaged property, did not give rise to constitutional taking claim. Taylor v. County of Copiah, 937 F. Supp. 573, 1994 U.S. Dist. LEXIS 20977 (S.D. Miss. 1994), aff'd, 51 F.3d 1042, 1995 U.S. App. LEXIS 8212 (5th Cir. Miss. 1995).

Homeowners who suffered additional damages allegedly attributable to a highway construction project a few years after the homeowners were compensated for the taking of their property by the condemning authority in an eminent domain action could not recover for the additional damages, even if those damages were not reasonably foreseeable at the time of the original eminent domain trial. King v. Mississippi State Highway Com., 609 So. 2d 1251, 1992 Miss. LEXIS 590 (Miss. 1992).

60. Schools and school districts – In general.

School principals having constitutionally protected property interest in employment did not have constitutionally protectable property right in employment at rate provided by salary schedule, absent any evidence that application of schedule was school board policy; principals’ contracts entitled them only to salary received during previous school year, schedule had been in existence at time previous year’s contract had been executed and had not been used in calculating salaries, and board complied with all state statutory notice requirements. Gardner v. Coffeeville Sch. Dist., 982 F. Supp. 1221, 1997 U.S. Dist. LEXIS 16748 (N.D. Miss. 1997).

Student could not complain of unconstitutional vagueness or overbreadth of school district alcohol policy as it applied to activities of third parties, but only as it applied to his own activities. Board of Trustees v. T.H. by & Through T.H. (In the Interest of T.H.), 681 So. 2d 110, 1996 Miss. LEXIS 492 (Miss. 1996).

School district policy is not facially unconstitutionally overbroad if: there are substantial number of situations where policy may be validly applied; policy covers range of easily identifiable conduct which may be constitutionally proscribed; and policy is susceptible to narrowing interpretation. Board of Trustees v. T.H. by & Through T.H. (In the Interest of T.H.), 681 So. 2d 110, 1996 Miss. LEXIS 492 (Miss. 1996).

School district’s alcohol policy was not facially overbroad as applied to conduct of student who admitted consuming alcohol before entering school property to attend school athletic function; policy validly applied to student’s conduct, district was constitutionally permitted to proscribe consumption of alcohol within limits, and policy was susceptible to narrowing interpretation. Board of Trustees v. T.H. by & Through T.H. (In the Interest of T.H.), 681 So. 2d 110, 1996 Miss. LEXIS 492 (Miss. 1996).

The procedures surrounding a school principal’s termination were not “tainted,” and no violation of his due process rights occurred, even though it could have been inferred from a witness’ reluctance to make a statement and from her affidavit that she felt compelled to testify or lose her job, since such “evidence” of coercion was insufficient to overcome the “presumption of honesty and integrity” in the school board members who served as adjudicators and conducted the dismissal hearing. Harris v. Canton Separate Pub. Sch. Bd. of Educ., 655 So. 2d 898, 1995 Miss. LEXIS 269 (Miss. 1995).

The fact that an attorney for a school’s board of trustees participates in a dismissal hearing, advises the board and generally runs the hearing affords the employee no grounds for complaint unless it can be shown that in fact the attorney corrupted or otherwise destroyed the impartiality of the process. Hoffman v. Board of Trustees, East Mississippi Junior College, 567 So. 2d 838, 1990 Miss. LEXIS 551 (Miss. 1990).

Only those persons who, out of personal animosity, or personal or financial stake in the decision, are shown of such bias that the presumption of honesty and integrity of school board members is overcome, shall be disqualified from service on a hearing board based on due process considerations. Hoffman v. Board of Trustees, East Mississippi Junior College, 567 So. 2d 838, 1990 Miss. LEXIS 551 (Miss. 1990).

Discrimination in form of punishing non-athletes, yet purposely sparing athletes committing similar infractions, could have no rational relation to any legitimate interest of school officials; any classification must pass requirement that it be rationally related to legitimate state interest, even if it does not involve suspect class or fundamental right, which finding would merely mean that purported classification was not subject to strict scrutiny. Cole v. Newton Special Municipal Separate School Dist., 676 F. Supp. 749, 1987 U.S. Dist. LEXIS 12455 (S.D. Miss. 1987), aff'd, 853 F.2d 924, 1988 U.S. App. LEXIS 10868 (5th Cir. Miss. 1988).

Notice procedure set forth in Emergency School Leasing Authority Act, §37-7-301, is adequate under both Mississippi and United States Constitutions. Cox v. Jackson Municipal Separate School Dist., 503 So. 2d 265, 1987 Miss. LEXIS 2355 (Miss. 1987).

A statute giving school boards the power to reemploy a principal without the recommendation of the superintendent does not deny the superintendent due process of law where the statute affords him ample opportunity to present evidence in support of his decision. Lamar County School Board v. Saul, 359 So. 2d 350, 1978 Miss. LEXIS 2260 (Miss. 1978).

School district’s rule against employing parents of illegitimate children violated both the equal protection clause and the due process clause of the Fourteenth Amendment. Andrews v. Drew Municipal Separate School Dist., 507 F.2d 611, 1975 U.S. App. LEXIS 16270 (5th Cir. Miss. 1975).

Section 9, Chapter 10, Laws of 1953 (§ 6271-09) prescribing additional qualification for county superintendents of public education, but also providing that no person who was serving as county superintendent of education at the effective date of the Acts should be ineligible for the office because of lack of the qualifications prescribed therein, was not invalid as containing an unreasonable discrimination in favor of incumbents, and so did not violate the equal protection and due process clauses of the Federal and State Constitutions. State ex rel. Patterson v. Land, 231 Miss. 529, 95 So. 2d 764, 1957 Miss. LEXIS 537 (Miss.), aff'd, 231 Miss. 529, 96 So. 2d 828, 1957 Miss. LEXIS 538 (Miss. 1957).

The consolidation of school districts is not lacking in due process where property owners have full opportunity to be heard and protest against the creating of the consolidated district or issuance of bonds therefor. Board of Sup'rs v. Brown, 146 Miss. 56, 111 So. 831, 1927 Miss. LEXIS 222 (Miss. 1927).

61. – Teacher employment and termination, schools and school districts.

The procedures followed at an administrative hearing before 3 members of the school board on a teacher’s 6-month suspension violated the teacher’s right to due process where, during a break in the formal proceedings, the 3 school board members told the teacher that they intended to reject suspension in favor of a formal reprimand, the teacher claimed to have relied on this information and rested her case prematurely, and the board ultimately reached a decision to suspend the teacher; although the teacher was afforded an opportunity to be heard, the school board, by its own actions, prevented her from taking full advantage of her right to present evidence in her favor by leading her to believe that there was no need to present additional evidence. Bowman v. Ferrell, 627 So. 2d 335, 1993 Miss. LEXIS 511 (Miss. 1993).

Where a suspended teacher’s procedural due process rights had been violated at her hearing before the school board, the chancery court erred in ordering the teacher’s reinstatement rather than a rehearing as required by §37-9-113(4). Bowman v. Ferrell, 627 So. 2d 335, 1993 Miss. LEXIS 511 (Miss. 1993).

There is no legislative enactment providing teachers’ aides with a valid claim of entitlement to continued employment. Thus, a teacher’s aide’s termination deprived her of no property interest, the taking of which would invoke the due process provisions of the constitution. Harrison County School Bd. v. Morreale, 538 So. 2d 1196, 1989 Miss. LEXIS 51 (Miss. 1989).

Teacher’s constitutional right to due process was not violated by school board despite claim that he was denied fair and impartial hearing because school board had already determined to dismiss him when it informed him of his right to public hearing, and because even though board conducted hearing through hearing officer, the ultimate decision rested with board. First, teacher had made no complaint at time of hearing about possibility of impartiality of school board, and such failure waived point. Second, where board acts both investigatively and adjudicatively, court establishes presumption of honesty and integrity in those serving as adjudicators, and in order to rebut presumption, teacher must show that board members had personal or financial stake in decision, or that there was some personal animosity toward teacher. Finally, showing that board was involved in events preceding termination is not enough, absent showing of either personal animosity, personal stake, or financial stake in decision, to overcome presumption of honesty and integrity of board members. Spradlin v. Board of Trustees, 515 So. 2d 893, 1987 Miss. LEXIS 2871 (Miss. 1987).

Removal of a teacher from her position was a violation of her right to due process where the action was taken without first giving her copies of the written charges against her, or informing her of the identities of those who had preferred the charges, or affording her an opportunity to appear before the board of trustees when it considered the charges; advising the teacher after her removal of her right to a hearing failed to comply with the provisions of §37-9-59 and §37-9-111(4). Cantrell v. Vickers, 495 F. Supp. 195, 1980 U.S. Dist. LEXIS 12914 (N.D. Miss. 1980).

School board policy prohibiting the hiring of any teacher whose own children did not attend the public schools did not violate teachers’ First Amendment right to freedom of association or Fourteenth Amendment rights to due process and equal protection. Cook v. Hudson, 511 F.2d 744, 1975 U.S. App. LEXIS 15047 (5th Cir. Miss. 1975).

62. – Student conduct and discipline, schools and school districts.

Student was denied his due process rights during disciplinary proceedings against him where not only was the student not allowed to pose questions to the other students involved in the incident, who were not present at the hearing, he had no right to even know the names of the students who accused him; the student received absolutely no notice of the hearing in which the school district was to review the Appeals Committee’s recommendation of expulsion for one year and render a final decision on the disciplinary proceeding, and a one-year expulsion required more than the minimal due process protections of notice and right to be heard. Hinds County Sch. Dist. Bd. of Trs. v. R.B., 10 So.3d 495, 2007 Miss. App. LEXIS 626 (Miss. Ct. App. 2007), rev'd, 10 So.3d 387, 2008 Miss. LEXIS 606 (Miss. 2008).

A high school student was not denied due process in connection with his suspension and subsequent expulsion arising from having several bottles of beer in his truck in the school parking lot, notwithstanding that the school failed to send a notice to the student through its board attorney within 24 hours as required by its rules, where (1) the school board published and required all students and parents to acknowledge that they received a copy of a handbook which set out, inter alia, the board’s policy regarding alcohol, (2) the student admitted that the beer found in his truck was his and that he was the one who had purchased the alcohol, and (3) both of the student’s parents were present at the first formal hearing and the student received a second formal hearing. Covington County v. G.W., 767 So. 2d 187, 2000 Miss. LEXIS 182 (Miss. 2000).

A student was not denied due process when the school failed to provide a list of witnesses prior to the first hearing where (1) the student was apprised of the charge against him, the nature of the hearing, and that he was entitled to have counsel present, and (2) the student failed to show exactly how he was substantially prejudiced by not having the names prior to the hearing. Covington County v. G.W., 767 So. 2d 187, 2000 Miss. LEXIS 182 (Miss. 2000).

Hearsay testimony from a school official in a student disciplinary proceeding does not deprive a student of any due process rights. Covington County v. G.W., 767 So. 2d 187, 2000 Miss. LEXIS 182 (Miss. 2000).

When student admits to conduct giving rise to suspension, need for due process hearing is obviated, since purpose of hearing is to safeguard against punishment of students who are innocent of accusations against them. Cole v. Newton Special Municipal Separate School Dist., 676 F. Supp. 749, 1987 U.S. Dist. LEXIS 12455 (S.D. Miss. 1987), aff'd, 853 F.2d 924, 1988 U.S. App. LEXIS 10868 (5th Cir. Miss. 1988).

Suit alleging that school official grabbed arm of student did not show type of action calculated to cause serious injury, nor did not such act evince malice or intention to cause injury, and even if serious injuries may have resulted, nature of contact suggested that any injuries were unintended rather than calculated and that if force used was in fact excessive, it came from carelessness or excess of zeal rather than malice. Whether physical harm by state officer rises to level of constitutional deprivation depends on extent of injury inflicted, degree of force used in proportion to amount necessary under circumstances, and motives of official; bottom-line inquiry is whether official’s conduct amounted to abuse of official power that shocks conscience. Cole v. Newton Special Municipal Separate School Dist., 676 F. Supp. 749, 1987 U.S. Dist. LEXIS 12455 (S.D. Miss. 1987), aff'd, 853 F.2d 924, 1988 U.S. App. LEXIS 10868 (5th Cir. Miss. 1988).

Any deprivation of student’s interest in attending school must be attended by at least minimal procedural safeguards, but where suspension is for 10 days or less, due process requires only that student be given oral or written notice of charges against him, basis of accusation, and opportunity to present his side of story. Cole v. Newton Special Municipal Separate School Dist., 676 F. Supp. 749, 1987 U.S. Dist. LEXIS 12455 (S.D. Miss. 1987), aff'd, 853 F.2d 924, 1988 U.S. App. LEXIS 10868 (5th Cir. Miss. 1988).

Even assuming that hearing before school board met minimal procedural safeguards, facts did not establish that hearing given to student by board comported with more formal procedures necessary for long-term suspensions, where it was unclear from facts developed through pleadings and discovery whether or not isolation at issue involved sufficient educational deprivation to warrant being treated as equivalent of suspension; upon returning to school after 10 days suspension, student was required to remain in detention room, isolated from other students and excluded from regular classes. Cole v. Newton Special Municipal Separate School Dist., 676 F. Supp. 749, 1987 U.S. Dist. LEXIS 12455 (S.D. Miss. 1987), aff'd, 853 F.2d 924, 1988 U.S. App. LEXIS 10868 (5th Cir. Miss. 1988).

A high school sophomore who, along with a schoolmate, drank 2 or 3 sips of beer at her home before leaving for school was denied procedural due process when, despite there being no school board rule prohibiting the drinking of beer by students at home, the school board took away all her school credits for the semester as punishment for drinking the beer, and, again, where procedures for a de novo hearing before the school board were ignored. Warren County Bd. of Education v. Wilkinson, 500 So. 2d 455, 1986 Miss. LEXIS 2789 (Miss. 1986).

63. – Sports and athletic programs, schools and school districts.

A high school athletic association’s anti-recruiting rule, which required that a participant in interscholastic activities attend a school in the school district of which his or her parents or guardian were bona fide residents, did not impermissibly burden the constitutional right to interstate travel because no penalty was imposed as a result of exercising the right to travel; any restriction on the right to travel was incidental to the stated purpose of the rule-to deter overzealous athletic recruiting practices-and the rule was reasonably related to that purpose. Mississippi High Sch. Activities Ass'n v. Coleman, 631 So. 2d 768, 1994 Miss. LEXIS 32 (Miss. 1994).

A high school athletic association’s anti-recruiting rule, which required that a participant in interscholastic activities attend a school in the school district of which his or her parents or guardian were bona fide residents, did not violate the constitutional right to free exercise of religion since the rule did not prevent a parent or child from actively practicing their chosen religion and did not regulate the conduct of student athletes to the point of interfering with any religious practice; any interference with religious practices was incidental to the stated purpose of the rule-to deter overzealous athletic recruiting practices-and the rule was reasonably related to that purpose. Mississippi High Sch. Activities Ass'n v. Coleman, 631 So. 2d 768, 1994 Miss. LEXIS 32 (Miss. 1994).

A high school athletic association’s anti-recruiting rule, which required that a participant in interscholastic activities attend a school in the school district of which his or her parents or guardian were bona fide residents, did not violate the constitutional right to equal protection since the classifications under the rule were based on bona fide residence requirements; moreover, the stated purposes of the rule-to encourage and promote fair competition among the schools and to deter overzealous athletic recruiting tactics were legitimate, and the rule was rationally related to those purposes. Mississippi High Sch. Activities Ass'n v. Coleman, 631 So. 2d 768, 1994 Miss. LEXIS 32 (Miss. 1994).

64. – Prayer and meditation, schools and school districts.

Miss Laws 1994, c. 609 § 1(2) (Section37-13-4.1), permitting public school students to initiate nonsectarian nonproselytizing prayer at various compulsory and noncompulsory school events, was unconstitutional under test of Lemon v. Kurtzman, 403 US 602, where (1) its stated purpose “to accommodate the free exercise of religious rights of its student citizens in the public schools” was to advance prayer in public schools, (2) its effect was to advance religion over irreligion because it gave preferential exceptional benefit to religion that it did not extend to anything else, and (3) it excessively entangled government and religion in that government officials were allowed to lead students in prayer and punish students who left class or assemblies in order to avoid listening to prayer. Ingebretsen v. Jackson Pub. Sch. Dist., 864 F. Supp. 1473 (S.D. Miss. 1994), aff’d, 88 F.3d 274 (5th Cir. 1996), reh’g and reh’g en banc denied (5th Cir. 1996), cert. denied, 519 U.S. 965, 117 S. Ct. 388, 136 L. Ed. 2d 304 (1996).

Miss Laws 1994, c. 609 § 1(2) (Section37-13-4.1), permitting public school students to initiate nonsectarian nonproselytizing prayer at various compulsory and noncompulsory school events, was unconstitutional under “coercion” tests where it would allow prayers to be given by any person, including teachers, school administrators, and clergy at school functions where attendance was compulsory, and students would be captive audience that could not leave without being punished by state or school board for truancy or excessive absences. Ingebretsen v. Jackson Pub. Sch. Dist., 864 F. Supp. 1473 (S.D. Miss. 1994), aff’d, 88 F.3d 274 (5th Cir. 1996), reh’g and reh’g en banc denied (5th Cir. 1996), cert. denied, 519 U.S. 965, 117 S. Ct. 388, 136 L. Ed. 2d 304 (1996).

Miss Laws 1994, c. 609 § 1(2) (Section37-13-4.1), permitting public school students to initiate nonsectarian nonproselytizing prayer at various compulsory and noncompulsory school events, was unconstitutional endorsement of religion where it allowed school officials in their capacity as representatives of state to lead students in prayer, and it set aside special time for prayer that it did not set aside for anything else. Ingebretsen v. Jackson Pub. Sch. Dist., 864 F. Supp. 1473 (S.D. Miss. 1994), aff’d, 88 F.3d 274 (5th Cir. 1996), reh’g and reh’g en banc denied (5th Cir. 1996), cert. denied, 519 U.S. 965, 117 S. Ct. 388, 136 L. Ed. 2d 304 (1996).

Miss Laws 1994, c. 609 § 1(2), permitting public school students to initiate nonsectarian nonproselytizing prayer at various compulsory and noncompulsory school events, was constitutional to extent that it allowed students to solemnize their graduation ceremonies with student-initiated, nonproselytizing and nonsectarian prayer given by student. Ingebretsen v. Jackson Pub. Sch. Dist., 864 F. Supp. 1473 (S.D. Miss. 1994), aff’d, 88 F.3d 274 (5th Cir. 1996), reh’g and reh’g en banc denied (5th Cir. 1996), cert. denied, 519 U.S. 965, 117 S. Ct. 388, 136 L. Ed. 2d 304 (1996).

Injunction permanently barring the Mississippi High School Activities Association, Inc. from placing the Hattiesberg High School on one year probation after the high school’s baseball team was required to forfeit a baseball game in the 1984 South AA Baseball Tournament was improperly granted in an action brought by the high school baseball team members and their parents, because the parties bringing the action were not third-party beneficiaries to the contract between the high school and the activities association, had no constitutional protected property interests in playing interscholastic sports, and had no standing to assert the due process rights of the high school. Mississippi High School Activities Asso. v. Farris, 501 So. 2d 393, 1987 Miss. LEXIS 2270 (Miss. 1987).

65. Taxation –In general.

Limited only by such constitutional concepts as equal protection and due process, legislature may levy tax in any manner it deems advisable. Mississippi Power & Light Co. v. Mississippi State Tax Comm’n, 704 So. 2d 1343 (Miss. Ct. App. 1997), reh’g denied 704 So. 2d 475, cert. denied.

Limited only by such constitutional concepts as equal protection and due process, legislature may levy tax in any manner it deems advisable. Mississippi Power & Light Co. v. Mississippi State Tax Comm'n, 700 So. 2d 1185, 1997 Miss. App. LEXIS 972 (Miss. Ct. App. 1997).

The four criteria that a taxing statute must satisfy to withstand a challenge under the commerce clause and due process clause of the United States Constitution are: (1) the tax must be applied to an activity with a substantial nexus with the taxing state; (2) the tax must be fairly apportioned; (3) the tax must not discriminate against interstate commerce; and (4) the tax must be fairly related to services provided by the taxing state; the failure to meet any one prong of the test renders the tax invalid. Tennessee Gas Pipeline Co. v. Marx, 594 So. 2d 615, 1992 Miss. LEXIS 66 (Miss. 1992).

A chancery court abused its discretion in overruling taxpayers’ motion for leave to amend their complaint to assert a 42 USCS § 1983/equal protection claim since state courts have concurrent jurisdiction with the federal courts over claims brought under § 1983 for violations of rights secured by the Constitution and laws of the United States, the federal judiciary had declared that it had no subject matter jurisdiction, and justice demanded that the taxpayers’ justiciable claim be heard and decided on its merits. Burrell v. Mississippi State Tax Com., 536 So. 2d 848, 1988 Miss. LEXIS 367 (Miss. 1988), overruled in part, Commonwealth Brands v. Morgan, 110 So.3d 752, 2013 Miss. LEXIS 141 (Miss. 2013).

In an action by a property owner to enjoin the county board of supervisors from levying and collecting a two-mill ad valorem tax for garbage collection and disposal, the property owner failed to carry his burden of proving that the legislative enactment authorizing the creation of such tax was violative of the due process and equal protection guarantees of the United States Constitution, notwithstanding the contention that there was no reasonable basis for classifying the county by itself separate from the state’s other counties, where a sanitary condition requiring prompt attention existed in the county and where it could not be said that such condition was a common characteristic or constituted a classification for every other county in the state. Harris v. Harrison County Board of Supervisors, 366 So. 2d 651, 1979 Miss. LEXIS 2194 (Miss. 1979).

The tax levied by Code 1972 §27-55-313 [repealed] on diesel fuel used by contractors in the performance of state contracts is not limited in its application to diesel fuel used in motor vehicles, but applies to all diesel fuel used by such contractors regardless of the specific use made of the fuel; That other fuels, notably propane, are not subject to the disputed tax when used as a heating agent does not constitute discrimination violative of the equal protection clause. Sharpe v. Standard Oil Co., 322 So. 2d 457, 1975 Miss. LEXIS 1541 (Miss. 1975).

Fact that decision of federal court declaring Mississippi poll tax law unconstitutional was handed down on day which was deadline for filing protest petitions against issuance of state aid road bonds, thereby increasing the number of electors in county from 8855 to 13510 and making total number of signatures on petitions insufficient to prevent board of supervisors from issuing bonds without calling election therefor, did not deprive petitioners of their constitutional rights, for the decision of the federal court was a fact beyond the power of the board to alter, but of which they were bound to take cognizance. Ratliff v. Board of Supervisors, 193 So. 2d 137, 1966 Miss. LEXIS 1280 (Miss. 1966).

Where a theater operator collected a tax from purchasers of the picture show tickets and turned the money over to state treasury, and kept no record of individual purchasers, to allow the movie operator to recover the tax would violate the doctrine against unjust enrichment. State v. Paramount-Gulf Theatres, Inc., 226 Miss. 404, 84 So. 2d 403, 1956 Miss. LEXIS 411 (Miss. 1956).

Statute imposing manufacturer’s tax under which tax rate imposed against manufacturers of some products was different from that imposed against manufacturers of other products held not invalid as denial of equal protection. Southern Package Corp. v. State Tax Com., 195 Miss. 864, 15 So. 2d 436, 16 So. 2d 856, 1944 Miss. LEXIS 329 (Miss. 1944).

Classification, for purposes of taxation, to be obnoxious to constitutional guaranty of equal protection of laws, must be manifestly arbitrary and unreasonable and not possibly so. Southern Package Corp. v. State Tax Com., 195 Miss. 864, 15 So. 2d 436, 16 So. 2d 856, 1944 Miss. LEXIS 329 (Miss. 1944).

The equal protection clause of Federal Constitution does not prevent a State from adjusting its system of taxation in a reasonable manner, nor compel a State to adopt an ironclad rule of equal taxation. Edward Hines Lumber Co. v. Hall, 148 So. 373 (Miss. 1933).

Mere inequalities or exemptions in matter of State taxation are not forbidden by Federal Constitution. Edward Hines Lumber Co. v. Hall, 148 So. 373 (Miss. 1933).

The equal protection clause does not prevent State from adjusting its system of taxation in all proper and reasonable ways. Mathison v. Brister, 166 Miss. 67, 145 So. 358, 1933 Miss. LEXIS 323 (Miss. 1933).

Classification for tax purposes, if not wholly unreasonable and arbitrary, and if the statute is uniform in operation, does not deny equal protection. Miller v. Lamar Life Ins. Co., 158 Miss. 753, 131 So. 282, 1930 Miss. LEXIS 117 (Miss. 1930).

Female dogs may, consistently with the equal protection clause, be taxed at a higher rate than male dogs. State v. Widman, 112 Miss. 1, 72 So. 782, 1916 Miss. LEXIS 49 (Miss. 1916).

66. – Chain store tax.

The chain store taxing statutes do not violate the concepts of due process and equal protection of the law embodied in the Mississippi and United States Constitutions and did not, in this case, deny equal protection of the law to a corporate retailer operating a chain of stores within and without the state. Interco, Inc. v. Rhoden, 220 So. 2d 290, 1969 Miss. LEXIS 1448 (Miss. 1969).

A statute imposing an additional three per cent on each dollar of gross revenue derived from the sale of admission to any moving picture show belonging to a chain or group of more than ten shows does not violate the equal protection clause of the Fourteenth Amendment to the Federal Constitution. State v. Paramount-Gulf Theatres, Inc., 226 Miss. 404, 84 So. 2d 403, 1956 Miss. LEXIS 411 (Miss. 1956).

The imposition of an additional tax on the operators of more than five stores, by Mississippi Laws of 1930, c 90, imposing a tax, based upon gross income, on the privilege of selling goods at retail, does not violate the equal protection or due process clauses of the Fourteenth Amendment. Penny Stores, Inc. v. Mitchell, 59 F.2d 789, 1932 U.S. Dist. LEXIS 1289 (D. Miss. 1932).

67. – Income taxes.

Federal retirees who were state residents were entitled to refunds of state income taxes paid under the state’s unconstitutional tax scheme which taxed federal retirees while exempting the state’s own retired employees. Marx v. Broom, 632 So. 2d 1315, 1994 Miss. LEXIS 117 (Miss. 1994).

The plain language of §27-7-313 states that any overpayment of Mississippi taxes for any reason shall be refunded to the taxpayer; thus, §27-7-313 provided for refunds of state income taxes to federal retirees who paid taxes under the state’s unconstitutional tax scheme which taxed federal retirees while exempting the state’s retired employees. Marx v. Broom, 632 So. 2d 1315, 1994 Miss. LEXIS 117 (Miss. 1994).

The 1990 amendment to §27-7-313 stripped federal retirees of the right to file for a refund of income taxes paid under the state’s unconstitutional tax scheme, which taxed federal retirees while exempting the state’s retired employees, without providing them any means of protecting those rights, and thus violated the retirees’ constitutional right to due process; moreover, the amendment was unconstitutionally discriminatory because the only persons affected were former federal employees as opposed to state or private sector employees. Marx v. Broom, 632 So. 2d 1315, 1994 Miss. LEXIS 117 (Miss. 1994).

Income of a business operating in interstate commerce is not immune from a fairly apportioned state taxation. However, for a state to tax income generated in interstate commerce, the Due Process Clause of the Fourteenth Amendment and the Commerce Clause of the United States Constitution require that the tax must be applied to an activity with a substantial nexus with the taxing state, the tax must be fairly apportioned, the tax must not discriminate against interstate commerce, and the tax must be fairly related to services provided by the taxing state. Marx v. Truck Renting & Leasing Asso., 520 So. 2d 1333, 1987 Miss. LEXIS 2855 (Miss. 1987), overruled in part, Commonwealth Brands v. Morgan, 110 So.3d 752, 2013 Miss. LEXIS 141 (Miss. 2013).

Section 27-65-23, which provides for a 6 percent tax on the gross income of a business which rents “transportation equipment with a situs within or without the State to common, contract or private commercial carriers,” and is taxed on that part of the income derived from use within the State, violates the Due Process Clause of the Fourteenth Amendment and the Commerce Clause of the United States Constitution because the tax is imposed on an activity without a substantial nexus within Mississippi. Marx v. Truck Renting & Leasing Asso., 520 So. 2d 1333, 1987 Miss. LEXIS 2855 (Miss. 1987), overruled in part, Commonwealth Brands v. Morgan, 110 So.3d 752, 2013 Miss. LEXIS 141 (Miss. 2013).

A legislative delegation to the tax commission of the duty to determine the portion of taxable income of a given person or corporation which should be allocated to sources within the state is a delegation of a fact-finding duty, and where the legislature provided the standard to be followed in evaluating the taxpayer’s earned income in Mississippi, as distinguished from its earned income from other sources, such a delegation is not unconstitutional. Columbia Gulf Transmission Co. v. Barr, 194 So. 2d 890, 1967 Miss. LEXIS 1424 (Miss. 1967).

A state income tax law does not deny to a citizen the equal protection of the laws in including income earned from sources outside the state in determining his taxable income while excluding it in determining the taxable income of domestic corporations, where there is nothing to negate the possible existence of just grounds for the difference, and it appears that the state has adopted, generally, a policy of avoiding double taxation of the same economic interest in corporate income by taxing either the income of the corporation or the dividends of its stockholders, but not both, and in the case of corporate income and dividends attributable to business done outside the state and received by stockholders of domestic corporations, the stockholders are taxed. Lawrence v. State Tax Com., 286 U.S. 276, 52 S. Ct. 556, 76 L. Ed. 1102, 1932 U.S. LEXIS 602 (U.S. 1932).

A graduated income tax does not deny the equal protection of the laws. State ex rel. Knox v. Gulf, M. & N. R. Co., 138 Miss. 70, 104 So. 689, 1925 Miss. LEXIS 106 (Miss. 1925).

68. – Inheritance taxes.

Classification of property for inheritance tax purposes, according to decedent’s residence, is permissible. Enochs v. State, 133 Miss. 107, 97 So. 534, 1923 Miss. LEXIS 125 (Miss. 1923).

69. – Privilege taxes generally.

A statute that imposed a fee on professional bail bondsmen for each bond conditioned upon the appearance at trial of a person charged with a criminal offense did not violate the equal protection rights of a licensed professional bail bondsmen, since it did not discriminate within those designated in the class, since it served a legitimate state interest in that moneys collected therefrom were earmarked for correctional facilities, and since the means chosen to effectuate the state’s interests were reasonable. Peterson v. Sandoz, 451 So. 2d 216, 1984 Miss. LEXIS 1767 (Miss. 1984).

Code 1942 § 10108, imposing tax on every person engaged in the business of selling tangible property, does not constitute double taxation, and does not violate the equal and uniform clauses of the State and Federal Constitutions. Peterson v. Sandoz, 451 So. 2d 216, 1984 Miss. LEXIS 1767 (Miss. 1984).

A privilege tax (Laws 1944, chap 137, § 143) imposed on persons taking photographs in the state for development of the same outside the state, when construed as a tax only on the person who actually takes the picture, is not unconstitutionally discriminatory in favor of local photographers by reason of the slight difference in the amount of tax as between the two classes. Craig v. Mills, 203 Miss. 692, 33 So. 2d 801, 1948 Miss. LEXIS 315 (Miss. 1948).

Assuming that a Mississippi privilege tax imposed on persons and corporations doing a business of purchasing commercial paper secured by means thereof was invalid because it exempted banks and local merchants from the payment of the tax, the invalidity of the exemption would not render the statute unconstitutional as to the tax levied against a particular finance company in view of the general rules for construction of statute and an express provision in the privilege tax act that if any provisions thereof should be found invalid, that fact would not render the remaining provisions of the statute void. Stone v. General Contract Purchase Corp., 193 Miss. 301, 7 So. 2d 806, 1942 Miss. LEXIS 83 (Miss. 1942), limited, Lincoln Nat'l Life Ins. Co. v. State Tax Com., 196 Miss. 82, 16 So. 2d 369, 1944 Miss. LEXIS 170 (Miss. 1944).

A privilege tax which is prohibitive in amount denies equal protection. Riley v. Ayer & Lord Tie Co., 147 Miss. 105, 113 So. 214, 1927 Miss. LEXIS 344 (Miss. 1927).

The discrimination against a person beginning a new business by a statute imposing a liability unless he pays a privilege tax before beginning business, while permitting one in an old business to escape such liability by renewing the privilege tax at any time during the month in which it is due, is not unreasonable. Robertson v. Southeastern Express Co., 130 Miss. 305, 94 So. 210, 1922 Miss. LEXIS 206 (Miss. 1922), aff'd, 264 U.S. 535, 44 S. Ct. 421, 68 L. Ed. 836, 1924 U.S. LEXIS 2534 (U.S. 1924).

The exemption of Confederate soldiers and of persons over 60 years of age who have lost a limb or an eye and whose taxable property is less than $500, from a privilege tax on peddlers, renders the taxing statute violative of the equal protection clause. Adams v. Standard Oil Co., 97 Miss. 879, 53 So. 692, 1910 Miss. LEXIS 316 (Miss. 1910).

A privilege tax may not constitutionally be imposed on persons carrying on a plumbing business without employing assistants. Wilby v. State, 93 Miss. 767, 47 So. 465, 1908 Miss. LEXIS 144 (Miss. 1908).

An exception of sawmill operators who do not ship timber or lumber out of the state from a privilege tax on timber buyers renders the tax invalid under the commerce clause. Adams v. Mississippi Lumber Co., 84 Miss. 23, 36 So. 68, 1904 Miss. LEXIS 5 (Miss. 1904).

70. – Property taxes.

Irrebuttable presumption that taxpayer’s property was used for nonagricultural purposes based solely upon fact that subdivision plat had been recorded, rather than upon present use of property, denied taxpayer constitutional right to equal protection of law. Riley v. Jefferson Davis County, 669 So. 2d 748, 1996 Miss. LEXIS 11 (Miss. 1996).

Property valuation may consider the gross income generated by the property as an indicator of value. It is not, therefore, a constitutional violation to value differently otherwise identical property if the disparate values result from disparate revenue-generating capabilities. Rebelwood, Ltd. v. Hinds County, 544 So. 2d 1356, 1989 Miss. LEXIS 246 (Miss. 1989).

The constitutional requirement of uniformity and equality in taxation is satisfied when, in establishing the true value of property, the public assessor considers all factors affecting the value of the property and employs the same assessment ratio as is applied to other like properties. Thus, where the assessor considered the amount of federal subsidies received by a taxpayer as the owner of the property, § 112 of the Mississippi Constitution and the Equal Protection Clause of the United States Constitution afforded the taxpayers no right to relief absent a showing that other federally subsidized housing projects were treated differently or that the assessor did not consider all factors affecting value. Rebelwood, Ltd. v. Hinds County, 544 So. 2d 1356, 1989 Miss. LEXIS 246 (Miss. 1989).

Assessment of a national bank’s property at full value where other property is assessed at 65% of value, does not deny equal protection. First Nat'l Bank v. Board of Sup'rs, 157 Miss. 197, 127 So. 686, 1930 Miss. LEXIS 263 (Miss.), cert. denied, 282 U.S. 856, 51 S. Ct. 32, 75 L. Ed. 758, 1930 U.S. LEXIS 197 (U.S. 1930).

The requirement of the state constitution that the assessment of property for taxation be uniform and equal, must, in view of the equal protection clause of the 14th Amendment, prevail over another constitutional requirement of assessment at true value. Knox v. Southern Paper Co., 143 Miss. 870, 108 So. 288, 1926 Miss. LEXIS 330 (Miss. 1926).

The classification of property for purposes of assessment and taxation is permissible so long as there is no discrimination between property of the same class; and thus the capital of banks may be taxed at its full value while other property is assessed at only a percentage of its value. Magnolia Bank v. Board of Sup'rs, 111 Miss. 857, 72 So. 697, 1916 Miss. LEXIS 411 (Miss. 1916), writ of error dismissed, 248 U.S. 546, 39 S. Ct. 135, 63 L. Ed. 414, 1919 U.S. LEXIS 1662 (U.S. 1919).

71. – Motor vehicle taxes.

Classification of motor vehicles according to carrying capacity or on mileage basis or putting of passenger vehicles and freight vehicles into separate classes for taxation purposes is not arbitrary or violative of equal protection clause of Federal Constitution. State ex rel. Rice v. Evans-Terry Co., 173 Miss. 526, 159 So. 658, 1935 Miss. LEXIS 195 (Miss.), aff'd, 296 U.S. 538, 56 S. Ct. 146, 80 L. Ed. 383, 1935 U.S. LEXIS 605 (U.S. 1935).

Statute imposing privilege tax on motor vehicles used partially on streets of “municipalities” which are governmental units of the State held not to deny equal protection, though no part of tax is returned to municipalities. State ex rel. Rice v. Evans-Terry Co., 173 Miss. 526, 159 So. 658, 1935 Miss. LEXIS 195 (Miss.), aff'd, 296 U.S. 538, 56 S. Ct. 146, 80 L. Ed. 383, 1935 U.S. LEXIS 605 (U.S. 1935).

Statute imposing mileage tax in addition to flat tag tax on motor vehicles traveling more than 6,000 miles upon public highways, except trucks of less than 2 l/2 tons, passenger automobiles, taxicabs, motor vehicles used solely to transport school teachers and children, forest and dairy products, material for road purposes, and motor vehicles used in lieu of street cars between municipalities or by hotels or United States or the State, held not to deny equal protection. State ex rel. Rice v. Evans-Terry Co., 173 Miss. 526, 159 So. 658, 1935 Miss. LEXIS 195 (Miss.), aff'd, 296 U.S. 538, 56 S. Ct. 146, 80 L. Ed. 383, 1935 U.S. LEXIS 605 (U.S. 1935).

72. – Gross receipts tax.

No due process objection exists to a state tax measured by gross receipts from the operation of a pipe line wholly within the state. Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 69 S. Ct. 1264, 93 L. Ed. 1613, 1949 U.S. LEXIS 2952 (U.S. 1949).

73. – Sales and use taxes.

The imposition of use and excise taxes pursuant to §27-67-7 et seq. on a pipeline company’s use of natural gas taken from its interstate gas pipeline as fuel for its compressor engines located along the pipeline was permissible under the commerce clause and the due process clause of the United States Constitution since the activity taxed the consumption of natural gas in compressor stations located in Mississippi had a sufficient nexus with the State to justify the tax, the tax was fairly apportioned to assess only local activities and did not discriminate against interstate commerce by subjecting interstate taxpayers to a double taxation where similarly situated intrastate taxpayers would be subject to only single taxation, and the tax was fairly related to the benefits provided by the State to the pipeline company. Tennessee Gas Pipeline Co. v. Marx, 594 So. 2d 615, 1992 Miss. LEXIS 66 (Miss. 1992).

Decision on former appeal of same case that Use Tax Law of this state is unconstitutional in its requirement that foreign seller collect and pay use tax on goods sold to Mississippi residents when seller is non-domesticated foreign corporation having no place of business or any agent in this state, its only intrastate activity being sending into state of non-resident solicitors to take orders effective only when approved at home office and sales being completed by delivery of goods to common carrier in foreign state, will be adhered to on subsequent appeal, and case does not become new case because state of Tennessee, from which state goods are shipped, is claimed to have relevant Sales Tax Law; because coming to rest in this state feature of original law has been eliminated; or because two salesmen of seller happen to reside in Mississippi for their own personal convenience and not that of employer, since principles controlling law of case doctrine are more binding upon courts than law of precedent. Stone v. Reichman-Crosby Co., 43 So. 2d 184 (Miss. 1949), cert. denied, 339 U.S. 917, 70 S. Ct. 625, 94 L. Ed. 1342, 1950 U.S. LEXIS 2179 (U.S. 1950).

Use tax statute violates due process clause of both State and Federal Constitution in requiring foreign seller, non-domesticated foreign corporation, having no place of business or any agent in this state, its only intra-state activity being sending into State of non-resident solicitors and two resident solicitors to take orders effective only when approved at home office, to become collecting agent for use tax on goods sold by corporation on orders taken as stated, when sales are completed by delivery of goods to common carrier in foreign state. Stone v. Reichman-Crosby Co., 43 So. 2d 184 (Miss. 1949), cert. denied, 339 U.S. 917, 70 S. Ct. 625, 94 L. Ed. 1342, 1950 U.S. LEXIS 2179 (U.S. 1950).

Laws 1948, Ch 457, amending Code 1942 § 10148, levying Use Tax, by eliminating provision that tax imposed shall not apply to use of article of tangible personal property sold or processed outside of state until transportation is ended and article commingled with property within state does not affect former decision that statute is unconstitutional in its requirement that foreign seller must collect and pay tax on goods sold on orders given to nonresident solicitors, effective only when approved at home office, sales being completed by delivery to common carrier in foreign state by non-domesticated foreign corporation, having no place of business in this state. Stone v. Reichman-Crosby Co., 43 So. 2d 184 (Miss. 1949), cert. denied, 339 U.S. 917, 70 S. Ct. 625, 94 L. Ed. 1342, 1950 U.S. LEXIS 2179 (U.S. 1950).

Use Tax Law, Chapter 120, Laws of 1942 (Code 1942 §§ 10146-10167), is unconstitutional as to its requirement that a non-resident seller shall collect and pay tax on sales consummated in Tennessee by delivery of property to a common carrier for transportation to purchasers in Mississippi, when the non-resident seller is not doing business in Mississippi and property was sold on orders taken by non-resident salesmen, as it violates the commerce clause by imposing a burden on interstate commerce and denies to seller equal protection and due process of law. Reichman-Crosby Co. v. Stone, 204 Miss. 122, 37 So. 2d 22, 1948 Miss. LEXIS 350 (Miss. 1948), dismissed, 339 U.S. 917, 70 S. Ct. 625, 94 L. Ed. 1342, 1950 U.S. LEXIS 2179 (U.S. 1950).

Where assessments or returns of additional sales taxes were made by the chairman of the state tax commission from the best information available where the taxpayer’s records were found to be inadequate, and notice was given to the taxpayer setting out the basis for the commissioner’s findings supporting such additional assessment, which assessments were approved by the tax commission and the taxpayer was given an opportunity both by the chairman of the commission and by the tax commission itself to negative by evidence the facts on which the assessments were based, the order of the tax commission approving such assessment did not violate the due process clause, since it was not necessary for the tax commission to set forth the facts on which the assessments were made in its order, as against the contention that orders of quasi judicial commissions and bodies must be supported by a finding of basic fact. Viator v. State Tax Com., 193 Miss. 266, 5 So. 2d 487, 1942 Miss. LEXIS 78 (Miss.), cert. denied, 316 U.S. 643, 62 S. Ct. 1036, 86 L. Ed. 1728, 1942 U.S. LEXIS 732 (U.S. 1942).

The statute imposing tax on sales of retail merchants and requiring them to collect tax from customers is not unconstitutional as violative of due-process clauses of State and Federal Constitutions. State ex rel. Rice v. Allen, 180 Miss. 659, 177 So. 763, 1938 Miss. LEXIS 2 (Miss. 1938).

A sales tax statute imposing a tax in greater amount on retail merchants than on wholesalers and exempting sales of school books and agricultural products held not to impose arbitrary classification violating due process. Notgrass Drug Co. v. State, 175 Miss. 358, 165 So. 884, 1936 Miss. LEXIS 6 (Miss. 1936).

Statute imposing tax of six cents per gallon on gasoline sold for use on highways in internal combustion engines or for any commercial purposes held not unconstitutional as denying equal protection. State ex rel. Rice v. Louisiana Oil Corp., 174 Miss. 585, 165 So. 423, 1936 Miss. LEXIS 202 (Miss. 1936).

74. – Tobacco taxation.

A tobacco tax statute requiring a retailer purchasing from a wholesaler having no permit to present tobacco to wholesaler having permit to have stamps affixed does not discriminate in favor of a wholesaler within State, since wholesaler outside State may procure stamps and affix them to merchandise. Edward Hines Lumber Co. v. Hall, 148 So. 373 (Miss. 1933).

Statute requiring retail dealer purchasing tobacco from wholesaler having no permit to present tobacco to wholesaler having permit to have tax stamps affixed does not discriminate against retailer in town some distance from wholesaler and who buys from wholesaler outside State. Edward Hines Lumber Co. v. Hall, 148 So. 373 (Miss. 1933).

Tobacco tax statute requiring retailers purchasing from wholesalers not having permit to present tobacco to nearest wholesaler having permit to have stamps affixed held not unconstitutional as imposing arbitrary and unreasonable restriction on lawful business and as being without legitimate basis of classification. Edward Hines Lumber Co. v. Hall, 148 So. 373 (Miss. 1933).

75. – Insurance companies, taxation.

State statute taxing out-of-state insurance companies at higher rate than domestic insurance companies has no legitimate state purpose which would justify differing treatment in satisfaction of equal protection clause. Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 105 S. Ct. 1676, 84 L. Ed. 2d 751, 1985 U.S. LEXIS 80 (U.S. 1985).

Where there was no domestic mutual casualty insurance company licensed and doing business of such character in the State, foreign mutual casualty insurance company admitted into and doing such business in State could not question constitutionality of statute imposing tax on foreign, but not on domestic, mutual casualty insurance companies on ground statute violated equal-protection clause of Federal Constitution. Gulley v. Lumbermen's Mut. Casualty Co., 176 Miss. 388, 166 So. 541, 168 So. 609, 1936 Miss. LEXIS 102 (Miss. 1936).

Statutes exempting domestic insurance companies from ad valorem taxes do not violate the privileges and immunities clause, or make an arbitrary and unreasonable classification. Miller v. Lamar Life Ins. Co., 158 Miss. 753, 131 So. 282, 1930 Miss. LEXIS 117 (Miss. 1930).

76. – Railroads and other carriers, taxation.

A railroad has no just cause of complaint because of the fact that it was called on to pay an ad valorem and an acreage tax on its land in common with other landowners, and in addition thereto a tax on the privilege of operating its railroad, since the two taxes were separate and distinct. Yazoo & M. V. R. Co. v. Board of Mississippi Levee Comm'rs, 188 Miss. 889, 195 So. 704, 1940 Miss. LEXIS 65 (Miss. 1940).

The imposition of a privilege tax on railroad property by levee commissioners was not a denial of the equal protection of the law in violation of the Fourteenth Amendment to the Constitution of the United States where the tax in question applied equally to all of the same class of persons or corporations subject thereto and there was nothing in the evidence or judicially known to the court to indicate that it imposed an unreasonable burden on the railroad, and the fact that taxation was on a mileage basis was not objectionable, nor did the fact that the only other railroad in the levee district had a smaller amount of mileage and consequently paid a much smaller tax than the defendant railroad make the tax objectionable. Yazoo & M. V. R. Co. v. Board of Mississippi Levee Comm'rs, 188 Miss. 889, 195 So. 704, 1940 Miss. LEXIS 65 (Miss. 1940).

An ordinance imposing a privilege tax upon excursion boats carrying passengers from city and back held not unreasonable because not applying to other carriers. Mayor & Board of Aldermen of Vicksburg v. Streckfus Steamers, 167 Miss. 856, 150 So. 215, 1933 Miss. LEXIS 147 (Miss. 1933).

A state statute taxing railroads within a levee district at $350 per mile but providing that the tax on a railroad having less than 25 miles of main line within the district will be $50 per mile, is not so arbitrary and unreasonable as to violate the due process and equal protection clauses. Columbus & G. R. Co. v. Miller, 283 U.S. 96, 51 S. Ct. 392, 75 L. Ed. 861, 1931 U.S. LEXIS 130 (U.S. 1931).

A statute imposing a privilege tax upon express companies at various rates per mile according to the class of railroad over which the express company operates is not denied the equal protection of the laws because it is not accorded a hearing as to the classification of the railroads which is accorded to the railroads. Southeastern Express Co. v. Robertson, 264 U.S. 535, 44 S. Ct. 421, 68 L. Ed. 836, 1924 U.S. LEXIS 2534 (U.S. 1924).

An express company is not denied the equal protection of the laws by reason of the fact that it is subject to a penalty for beginning business over any road before paying a privilege tax while persons and corporations already in business when the taxing day arrives are granted a number of days in which to pay the tax. Southeastern Express Co. v. Robertson, 264 U.S. 535, 44 S. Ct. 421, 68 L. Ed. 836, 1924 U.S. LEXIS 2534 (U.S. 1924).

The imposition of an additional privilege tax on railroads claiming exemption, under charter, from state rate control, violates the due process clause. Gulf & S. I. R. Co. v. Adams, 90 Miss. 559, 45 So. 91, 1907 Miss. LEXIS 128 (Miss. 1907).

A statute providing for the assessment of back taxes against railroads by the state railroad commission, held not to involve any deprivation of property without due process, or denial of the equal protection of the laws. Yazoo & M. V. R. Co. v. Adams, 77 Miss. 764, 25 So. 355, 1900 Miss. LEXIS 1 (Miss. 1900).

77. – Tax sales and enforcement, taxation.

Taxpayers’ claim that special agents of Mississippi State Tax Commission singled them out for punitive action and treated them differently from other similarly situated taxpayers failed to set forth equal protection claim, absent specific facts showing disparate treatment and absent information from which court could infer existence of classification. Smith v. Luther, 973 F. Supp. 601, 1997 U.S. Dist. LEXIS 13513 (N.D. Miss. 1997).

State law requiring only posting of notice of pending tax sale in county courthouse and publication of notice once per week for three consecutive weeks is inadequate to give mortgagee sufficient notice and is therefore violative of Fourteenth Amendment due process clause. Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 103 S. Ct. 2706, 77 L. Ed. 2d 180, 1983 U.S. LEXIS 76 (U.S. 1983).

Sales tax statutes making the place of business, including the permanent fixtures used in such business, liable to seizure and sale when taxes accrued upon the business conducted on the premises should become due and unpaid, even though it did not expressly provide that the tax should be a lien upon the property of the owner of such place of business and fixtures, or that the tax should constitute a debt due and owing by the lessor, was not a violation of due process of law, in view of provisions therein permitting any person improperly charged with any tax and required to pay the same to recover it in any proper action or suit and entitling the lessor of the premises and fixtures to petition for a hearing if desired upon receipt by him of a demand from the commissioner to pay the delinquent taxes due by the lessee. Standard Oil Co. v. Stone, 191 Miss. 897, 2 So. 2d 155, 1941 Miss. LEXIS 124 (Miss. 1941).

Sales tax statute in rendering liable and subject to seizure and sale the premises and fixtures of a lessor to satisfy the unpaid sales tax due on retail sales made in the conduct of a business when the premises are equipped with permanent fixtures so that no other commodity than that sold by the lessor of such premises can be sold and handled thereat, is not unconstitutionally discriminatory as being applicable only to gasoline filling stations, since there was a reasonable basis for the distinction in such situation and in not rendering liable and subject to seizure and sale the premises and fixtures of the average landlord, for instance, who leases his store building and fixtures to a merchant engaged in selling general commodities thereat other than those sold by the owner of such premises. Standard Oil Co. v. Stone, 191 Miss. 897, 2 So. 2d 155, 1941 Miss. LEXIS 124 (Miss. 1941).

The satisfaction of a tax upon one parcel of property by resort to other parcels of property within the state owned by the same person, though he be a nonresident, does not deny due process. Nickey v. State, 167 Miss. 650, 145 So. 630, 146 So. 859, 147 So. 324, 1933 Miss. LEXIS 81 (Miss. 1933), aff'd, 292 U.S. 393, 54 S. Ct. 743, 78 L. Ed. 1323, 1934 U.S. LEXIS 718 (U.S. 1934).

Statute providing that action attacking validity of tax sale of land to State must be brought within two years, after sale or forfeiture to State, and that limitation shall not apply to land sold prior to January 1, 1928, held not unconstitutional as violating equal protection provision. Russell Inv. Corp. v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102, 1938 Miss. LEXIS 130 (Miss. 1938).

Statute fixing date for payment of license taxes and imposing penalty for failure to timely pay taxes does not violate due-process clause or any other provision of Constitution. Texas Co. v. Dyer, 179 Miss. 135, 174 So. 80, 1937 Miss. LEXIS 13 (Miss. 1937).

Statutory provision permitting sheriff to seize and sell automobile when owner has not paid highway privilege tax, without providing for inquiry thereinto or notice to owner, held void as denying due process. Holloway v. Jordan, 170 Miss. 99, 154 So. 340, 1934 Miss. LEXIS 116 (Miss. 1934).

Unconstitutionality of provision permitting sheriff to seize and sell automobile for nonpayment of highway privilege tax without notice to owner, held separable from remainder of statute. Holloway v. Jordan, 170 Miss. 99, 154 So. 340, 1934 Miss. LEXIS 116 (Miss. 1934).

Statute making tax a debt due by taxpayer for which action may be brought held not invalid as depriving taxpayer of property without due process of law. Nickey v. State, 167 Miss. 650, 145 So. 630, 146 So. 859, 147 So. 324, 1933 Miss. LEXIS 81 (Miss. 1933), aff'd, 292 U.S. 393, 54 S. Ct. 743, 78 L. Ed. 1323, 1934 U.S. LEXIS 718 (U.S. 1934).

A statute making every tax lawfully levied a debt against the taxpayer, recoverable by action in which the assessment roll shall be prima facie evidence of its correctness, does not deny due process, though not providing for personal service on taxpayer of notice of assessment. George County Bridge Co. v. Catlett, 161 Miss. 120, 135 So. 217, 1931 Miss. LEXIS 255 (Miss. 1931).

78. Unemployment compensation.

Denial to a union member benefits under the Unemployment Compensation Act because of his refusal to accept nonunion employment is not a denial of a property right in violation of the due process and equal protection clauses of the Constitutions of the United States and the State of Mississippi. Mills v. Mississippi Employment Sec. Com., 228 Miss. 789, 89 So. 2d 727, 1956 Miss. LEXIS 566 (Miss. 1956).

Statute (Code 1942 § 7440), defining an employer subject to the provisions of the Unemployment Compensation Act (subsection h(1) and (4)), as applied to a corporation which did not employ the minimum of 8 persons required by the Act, but which was controlled by another corporation owning a majority of the stock, both corporations being controlled by the same interests, and both corporations, together, having more than 8 nonexempt employees, did not violate the equal protection clauses of the state and Federal constitutions. Warren Brokerage Co. v. Mississippi Unemployment Compensation Com., 194 Miss. 855, 13 So. 2d 227, 1943 Miss. LEXIS 98 (Miss. 1943), Warren Credit Corp. v. Mississippi Unemployment Compensation Com., 13 So. 2d 228 (Miss. 1943).

Determination that drug business employing six persons and dairy business employing four persons were under a common control so as to be within the application of the Mississippi Unemployment Compensation Act did not deprive the defendant of his property without due process of law or deny him the equal protection of the laws, where such determination was based upon evidence that defendant deeded the dairy to his wife to evade liability for benefits under such act, that although proceeds of the dairy were used by the wife for remodeling and furnishing their home, defendant retained control over the dairy business, and both businesses were really operated for the benefit of defendant and his family. Mississippi Unemployment Compensation Com. v. Avent, 192 Miss. 85, 4 So. 2d 296, 4 So. 2d 684, 1941 Miss. LEXIS 5 (Miss. 1941).

A statute which for the avowed purpose of relieving unemployment and providing for the processing of raw materials found and produced in the state, with a view to balancing agriculture with industry, authorizes municipalities to construct factories which may be leased to operators on terms which will insure their continued operation, does not violate the due process clause. Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 1938 Miss. LEXIS 53 (Miss. 1938).

78. Warranty law.

Section 75-1-105 authorizes application of Mississippi substantive law on privity, disclaimers and limitations of remedies in warranty action only when transaction giving rise to warranty claim bears some reasonable and appropriate relationship to Mississippi, and in absence of such relation, application of Mississippi substantive warranty law violates constitutional guarantees. Price v. International Tel. & Tel. Corp., 651 F. Supp. 706, 1986 U.S. Dist. LEXIS 17192 (S.D. Miss. 1986).

79. Welfare laws.

State statutes that deny welfare benefits to resident aliens or to aliens who have not resided in the United States for a specified number of years violated the equal protection clause of the Fourteenth Amendment and conflict with overriding national policies including the right of an alien lawfully within the country to enter and abide in any state on an equality of legal privileges with all citizens under nondiscriminatory laws in areas which have been constitutionally entrusted to the federal government. Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534, 1971 U.S. LEXIS 28 (U.S. 1971).

80. Workers’ compensation.

Award of workers’ compensation benefits to an employee was overturned where, as a result of the Mississippi Workers’ Compensation Commission’s departure from its own procedural rules, certain medical records were entered into evidence that erroneously provided medical causation relating the employee’s focal dystonia to the employee’s work as a card dealer for the employer; the mandates of due process were not adhered to by the commission. Robinson Prop. Group v. Newton, 975 So. 2d 256, 2007 Miss. App. LEXIS 676 (Miss. Ct. App. 2007), cert. denied, 984 So. 2d 277, 2008 Miss. LEXIS 284 (Miss. 2008).

Workers’ compensation claimants challenging constitutionality of workers’ compensation system failed to show that they suffered inordinate delays in resolution of their benefits claims, and, thus, failed to show state-caused due process deprivation arising out of delays in system, where many of delays complained of by claimants were result of their own or their attorneys’ action or inaction. Warren v. Mississippi Workers' Compensation Comm'n, 700 So. 2d 608, 1997 Miss. LEXIS 496 (Miss. 1997).

Purposes and objectives of Workers Compensation Act has rationale basis and furthers valid state purpose, even though it precludes recovery by certain parties, such as non-dependents. Dependents of Nosser v. Natchez Jitney Jungle, Inc., 511 So. 2d 141, 1987 Miss. LEXIS 2673 (Miss. 1987).

Under Mississippi and Federal Constitutions, there is no due process violation by virtue of exclusive remedy provisions of Workers’ Compensation Act, §71-3-9, precluding action by wife of injured employee for loss of consortium, even though cause of action for loss of consortium is generally recognized under §93-3-1. West v. Plastifax, Inc., 505 So. 2d 1026, 1987 Miss. LEXIS 2497 (Miss. 1987).

The exemption of school districts from mandatory worker’s compensation coverage has rational basis, and does not impinge upon the equal protection rights of injured school district employees. Adams v. Petal Municipal Separate School Systems, 487 So. 2d 1329, 1986 Miss. LEXIS 2451 (Miss. 1986).

Where, under the law of Georgia where its contract was made, the workmen’s compensation carrier was not obligated to pay to any person any benefit under any compensation law except the Georgia Act, the liability of the carrier could not be extended by application of the Mississippi Workmen’s Compensation Act contrary to the express terms of the policy, since to do so would violate the due process clause of the United States Constitution. Mandle v. Kelly, 229 Miss. 327, 92 So. 2d 246, 1957 Miss. LEXIS 303 (Miss. 1957).

81. Zoning.

City was not entitled to enforce a zoning ordinance that regulated nonconforming uses to prohibit a mobile-home park operator from replacing individual mobile-homes that were removed from the mobile-home park because the city’s interpretation of the ordinance, after more than thirty years of not enforcing the ordinance in that manner, was both arbitrary and capricious and violated the mobile-home park operator’s constitutional right to enjoy its property. Cleveland MHC, LLC v. City of Richland, 163 So.3d 284, 2015 Miss. LEXIS 230 (Miss. 2015).

Amendment of a county zoning ordinance was proper where the ordinance was not arbitrary or capricious; therefore, due process rights were not violated, U.S. Const. amend. XIV. Miss. Manufactured Hous. Ass'n v. Bd. of Supervisors, 878 So. 2d 180, 2004 Miss. App. LEXIS 124 (Miss. Ct. App. 2004).

Landowner was denied procedural due process by city board of alderman’s failure to provide him with notice that petition opposing his request for zoning variance would be presented at regularly scheduled board meeting and that decision on his appeal would be made at that time. Carpenter v. City of Petal, 699 So. 2d 928, 1997 Miss. LEXIS 382 (Miss. 1997).

Substantive due process requirements are met if zoning ordinance serves public purpose, means adopted are reasonably necessary to accomplish that purpose, and regulation is not unduly oppressive. Carpenter v. City of Petal, 699 So. 2d 928, 1997 Miss. LEXIS 382 (Miss. 1997).

If question of existence of legitimate reason for zoning ordinance is at least debatable, there is no denial of substantive due process. Carpenter v. City of Petal, 699 So. 2d 928, 1997 Miss. LEXIS 382 (Miss. 1997).

Ordinance prohibiting placement of mobile home units outside of approved mobile home parks could not be upheld, over substantive due process challenge, based on claims that restriction was necessary to protect property values in surrounding residential areas and that landowner who sought to place mobile home on farm could obtain permit to establish mobile home park on property. Carpenter v. City of Petal, 699 So. 2d 928, 1997 Miss. LEXIS 382 (Miss. 1997).

A property owner’s claim of ownership under color of title by virtue of his adverse possession of the property after he purchased the property at a tax sale but before the redemption period had ended and he had the right of possession, was sufficient to apply the “doctrine of relation” back to the date of the tax sale purchase for the purpose of challenging a subsequent zoning ordinance by asserting a pre-existing non-conforming use. In the balancing of public benefit against private property losses, a landowner’s constitutional right under the due process clause prevails. Barrett v. Hinds County, 545 So. 2d 734, 1989 Miss. LEXIS 292 (Miss. 1989).

Any violation of the county’s regulations regarding notice of non-compliance with the county’s subdivision ordinance did not deprive a developer and lot owners of their due process right with respect to the county’s action for declaratory and injunctive relief to bring the lot into compliance with the ordinance since such a procedure was not a prerequisite to the filing and prosecution of the lawsuit. Additionally, the rights of the developer and the lot owners in the premises was reasonable advance notice of the lawsuit and the opportunity to appear and be heard. Johnson v. Hinds County, 524 So. 2d 947, 1988 Miss. LEXIS 194 (Miss. 1988).

Decision of city fathers in drawing and maintaining line past which commercial development would not be allowed was not arbitrary, capricious, or unreasonable, where there was substantial evidence supporting both sides of rezoning application, thus making ultimate decision fairly debatable; same reasoning applied to denial of assertion that zoning restriction amounted to confiscatory taking in violation of due process of law under constitution because that issue is intertwined with review of whether zoning decision is arbitrary, capricious, or unreasonable. Saunders v. Jackson, 511 So. 2d 902, 1987 Miss. LEXIS 2614 (Miss. 1987).

The due process rights, if any, guaranteed to objectors of a rezoning proposal is reasonable advance notice of the substance of the rezoning proposal together with the opportunity to be heard at all critical stages of the process. Thrash v. Mayor & Comm'rs of Jackson, 498 So. 2d 801, 1986 Miss. LEXIS 2837 (Miss. 1986).

81.5 - Race-neutral exercise of peremptory challenges, impartial jury

In a capital murder case, the trial court did not err in denying defendant’s Batson challenges; the evidence indicated that the State’s reasons for its peremptory strikes were valid and not merely pretextual. Flowers v. State, 240 So.3d 1082, 2017 Miss. LEXIS 431 (Miss. 2017).

82. Racial discrimination – In general.

Defendant failed to show that the death-penalty scheme discriminated in violation of the Fourteenth Amendment because he simply pointed to statistical evidence as evidence of discrimination and failed to demonstrate that the decision-makers in his case acted with a discriminatory purpose. Corrothers v. State, 148 So.3d 278, 2014 Miss. LEXIS 311 (Miss. 2014), cert. denied, — U.S. —, 135 S. Ct. 2835, 192 L. Ed. 2d 877, 2015 U.S. LEXIS 3926 (U.S. 2015).

A mother whose parental rights were terminated failed to show that [former] §93-15-103 violated her right to equal protection under the Fourteenth Amendment on the ground that a proportionally higher number of blacks’ parental rights are terminated than are whites’, since the statute is racially neutral on its face and there was no evidence that the purpose of the statute was anything other than the protection of the children of Mississippi. Vance v. Lincoln County Dep't of Public Welfare, 582 So. 2d 414, 1991 Miss. LEXIS 360 (Miss. 1991).

In a prosecution for armed robbery, the trial court properly refused to quash the indictment on the ground that there had never been a black grand jury foreman in the county, where defendant did not establish a prima facie case of discrimination; since defendant did not introduce any statistical evidence of the proportion of blacks in the total population of the county, there was no basis of comparison between the proportion of blacks in the total population to the proportion called to serve as foreman over a significant period of time. White v. State, 374 So. 2d 843, 1979 Miss. LEXIS 2378 (Miss. 1979).

Classifications based on alienage, nationality, or race are inherently suspect and subject to close judicial scrutiny; aliens as a class are a prime example of a minority for whom it is appropriate that heightened judicial solicitude be shown. Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534, 1971 U.S. LEXIS 28 (U.S. 1971).

Where racial classifications are involved, the equal protection and due process clauses of the Fourteenth Amendment command a more stringent standard in revealing discretionary acts of state or local officers. Hawkins v. Shaw, 303 F. Supp. 1162, 1969 U.S. Dist. LEXIS 12561 (N.D. Miss. 1969), rev'd, 437 F.2d 1286, 1971 U.S. App. LEXIS 12248 (5th Cir. Miss. 1971).

It is true that since the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from a state’s official sources, racial classifications are constitutionally suspect, subject to the most rigid scrutiny, and they are in most circumstances irrelevant to any constitutionally acceptable legislative purpose. Hawkins v. Shaw, 303 F. Supp. 1162, 1969 U.S. Dist. LEXIS 12561 (N.D. Miss. 1969), rev'd, 437 F.2d 1286, 1971 U.S. App. LEXIS 12248 (5th Cir. Miss. 1971).

The equal protection clause reaches the exercise of state power however manifested, whether exercised directly or through the subdivisions of the state. Hawkins v. Shaw, 303 F. Supp. 1162, 1969 U.S. Dist. LEXIS 12561 (N.D. Miss. 1969), rev'd, 437 F.2d 1286, 1971 U.S. App. LEXIS 12248 (5th Cir. Miss. 1971).

Where a municipality by ordinance detaches a portion of a recently annexed area on the ground of public convenience and necessity and the physical and financial difficulties present in attempting to afford city services to the detached area, the detachment does not affect the regularity of the city’s boundaries, and there is no evidence that it was accomplished for the purpose of excluding Negroes or was made along racial lines, the municipality’s action is proper and does not violate the Fourteenth and Fifteenth Amendments to the United States Constitution. Marshall v. Mayor & Board of Selectmen, 251 Miss. 750, 171 So. 2d 347, 1965 Miss. LEXIS 899 (Miss.), cert. denied, 382 U.S. 836, 86 S. Ct. 83, 15 L. Ed. 2d 79, 1965 U.S. LEXIS 711 (U.S. 1965).

In a prosecution of a Negro for the rape of a white woman the conclusion of the trial judge, in passing upon the issue of fact presented by a motion to quash the indictment, that there had been no systematic, intentional, deliberate discrimination on account of race, was not manifestly wrong in view of the evidence. Cameron v. State, 233 Miss. 404, 102 So. 2d 355, 1958 Miss. LEXIS 397 (Miss. 1958).

Colored persons are not denied the equal protection of the laws by the Mississippi Constitution and laws which make no discrimination against the colored race in terms but which grant a discretion to certain officers which can be used to the abridgement of the right of colored persons to vote and serve on juries, when it is not shown that their actual administration is evil, but only that evil is possible under them. Williams v. Mississippi, 170 U.S. 213, 18 S. Ct. 583, 42 L. Ed. 1012, 1898 U.S. LEXIS 1540 (U.S. 1898).

83. – Clubs and associations, racial discrimination.

Sponsorship of single-race clubs by state agricultural extension service does not violate Fourteenth Amendment where racial imbalance was result of voluntary choice of private individuals. Bazemore v. Friday, 478 U.S. 385, 106 S. Ct. 3000, 92 L. Ed. 2d 315, 1986 U.S. LEXIS 131 (U.S. 1986).

84. – Segregation of facilities or discontinuance of services, racial discrimination.

Under the Batson test, the prosecutor satisfied the burden of articulating a non-discriminatory reason for striking a black juror where he explained that he struck the juror because the juror had long unkempt hair, a mustache and a beard, since the wearing of beards and long unkempt hair are not characteristics that are particular to any race. Purkett v. Elem, 514 U.S. 765, 115 S. Ct. 1769, 131 L. Ed. 2d 834, 1995 U.S. LEXIS 3181 (U.S. 1995).

Prosecutor’s use of peremptory challenges to exclude blacks from jury trying black defendant may serve as basis for equal protection claim for purposeful discrimination. Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69, 1986 U.S. LEXIS 150 (U.S. 1986).

A city council’s closing of the city’s public swimming pools after their operation on a racially segregated basis was declared unconstitutional did not violate either the Thirteenth or the Fourteenth Amendment, even though there was some evidence supporting the conclusion that the closing was because of some ideological opposition to racial integration in swimming pools, where (1) there was substantial evidence supporting the conclusion that the council felt that the pools could not be operated safely and economically on an integrated basis, and (2) there was no evidence that the city was covertly aiding the maintenance of swimming pools private in name only, or that there was any state action affecting blacks differently from whites. Palmer v. Thompson, 403 U.S. 217, 91 S. Ct. 1940, 29 L. Ed. 2d 438, 1971 U.S. LEXIS 27 (U.S. 1971).

Where the evidence failed to show segregation of municipal facilities was forced upon residents of the community, a class action by Negro residents against county and city officials seeking to enjoin such discrimination was dismissed. Coleman v. Aycock, 304 F. Supp. 132, 1969 U.S. Dist. LEXIS 12531 (N.D. Miss. 1969).

A class action for Negro citizens seeking injunctive relief against the officials of a town charging racial discrimination in provision of municipal facilities and services will be dismissed in the absence of proof that such discrimination in fact existed. Hawkins v. Shaw, 303 F. Supp. 1162, 1969 U.S. Dist. LEXIS 12561 (N.D. Miss. 1969), rev'd, 437 F.2d 1286, 1971 U.S. App. LEXIS 12248 (5th Cir. Miss. 1971).

If any one or more of state statutes should be construed to permit or encourage the denial to the plaintiffs of the use of public recreational facilities, including public libraries, on an integrated and equal basis solely on the grounds of race and color, then the statute would be so plainly unconstitutional as not to require a federal three-judge court. Clark v. Thompson, 204 F. Supp. 30, 1962 U.S. Dist. LEXIS 3102 (S.D. Miss. 1962).

85. – Jury list, racial discrimination.

There is no constitutional right to have a jury mirror any particular community; thus, a capital murder defendant, who was granted a change of venue because of pretrial publicity, was not improperly denied a second change of venue to a county in which the racial makeup more closely reflected that of the county where the crime occurred where the jury that tried the defendant was selected in a nondiscriminatory manner, and there was no evidence that the jurors were not impartial. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

The trial court in a narcotics prosecution did not err in overruling defendant’s motion to quash the indictment and petit venire, which motion alleged that the statutory exclusion of persons 18, 19 and 20 years of age to serve on grand and petit juries violated defendant’s federal constitutional rights and systematically excluded black persons from grand and petit juries; the fact that such age group has been permitted to register and vote by amendment to the US Constitution did not qualify persons under 21 to serve as jurors under state law. Fermo v. State, 370 So. 2d 930, 1979 Miss. LEXIS 2028 (Miss. 1979).

Where it was shown that the voters who were registered by federal registrars were added to the list of registered voters used to prepare master jury lists and coded “FR” such facts required quashing of the venire when considered together with a disproportionate number of whites on the jury list, and required reversal of a criminal conviction based on a jury verdict. Chinn v. State, 248 So. 2d 801, 1971 Miss. LEXIS 1491 (Miss. 1971).

Where a county was 72 percent nonwhite and the number of nonwhites on the master jury list during the period in question was about 28 percent of the total, such facts established a prima facie case of discrimination which was not sufficiently rebutted by evidence that the county supervisors prepared master lists from voter registration books without regard to race, creed, or color. Chinn v. State, 248 So. 2d 801, 1971 Miss. LEXIS 1491 (Miss. 1971).

A wide disparity shown between percentage of Negro population in the district and the percentage of Negroes on jury lists during the period in question was a prima facie showing of purposeful discrimination on the part of the state which the state was required to rebut in proceedings on an accused’s motion to quash the indictment, jury panel and venire. Caston v. State, 240 So. 2d 443, 1970 Miss. LEXIS 1291 (Miss. 1970).

Evidence that a jury selection system was based on a list of registered voters coded as to race and sex of the individuals, that the names of persons registered by federal registrars, most of which persons were Negroes, were not included in the list, and that the jury list showed 2.97% Negro men and 4.31% Negro women in the year in which the defendant was indicted, tried and convicted, while the Negro population of the county was 36.2%, was sufficient to make a prima facie case of discrimination against Negroes, placing the burden on the state to show that the underrepresentation resulted from factors other than purposeful discrimination. Spencer v. State, 240 So. 2d 260, 1970 Miss. LEXIS 1279 (Miss. 1970).

Jurors are not to be summoned because of their race, but rather summoned without discrimination from all persons qualified as jurors, and where a record does not show a systematic exclusion of Negroes from jury service, the state has met the burden of proof necessary to show that there is no systematic exclusion of Negroes from the jury. Smith v. State, 229 So. 2d 551, 1969 Miss. LEXIS 1246 (Miss. 1969).

Where defendant’s proof showed that a disproportion between Negroes and whites on the jury lists had existed over a long period of time, he had made out a prima facie case of the systematic exclusion of Negroes from the jury which indicted him, and it was incumbent upon the state to show that there was no systematic exclusion of Negroes from the grand jury and that defendant’s constitutional rights were not infringed by the manner and procedure in which the grand jurors were drawn, and in the absence of such rebuttal testimony on the part of the state, the presumption of purposeful prior exclusion stands and the motion to quash the indictment should have been sustained. Reeves v. Reeves, 210 So. 2d 780, 1968 Miss. LEXIS 1521 (Miss. 1968).

Laws relating to the selection of juries must be followed in accordance with decisions of the United States Supreme Court, and when such laws are not followed, due process under the Fourteenth Amendment is denied to defendants. Watts v. State, 196 So. 2d 79, 1967 Miss. LEXIS 1475 (Miss. 1967).

Where evidence established the existence of a policy of systematic exclusion of Negroes from jury lists in the county in which a Negro defendant was tried, the indictment returned against him was necessarily quashed. Shinall v. State, 187 So. 2d 840, 1966 Miss. LEXIS 1359 (Miss. 1966).

In a county where the jury lists were made from the roster of qualified, registered voters, and the registrar had been enjoined by a federal court from discriminating against Negroes in their attempts to register and he did not deny that the injunction had been properly granted, such fact of itself was evidence that Negroes had been systematically excluded as jurors. Shinall v. State, 187 So. 2d 840, 1966 Miss. LEXIS 1359 (Miss. 1966).

Any action of the state, whether through its legislative body, its courts, its executive or administrative officers, discriminating against people in regard to jury service, solely because of race or color, denies the equal protection of laws, and violates the Fourteenth Amendment of the United States Constitution. Shinall v. State, 187 So. 2d 840, 1966 Miss. LEXIS 1359 (Miss. 1966).

In the absence of any evidence of long continued systematic exclusion of Negroes from jury service the burden of proof did not shift to the State of Mississippi to refute systematic discrimination, but it remained the burden of the defendant. Dunning v. State, 251 Miss. 766, 171 So. 2d 315, 1965 Miss. LEXIS 900 (Miss. 1965), cert. denied, 386 U.S. 993, 87 S. Ct. 1310, 18 L. Ed. 2d 339, 1967 U.S. LEXIS 1872 (U.S. 1967).

Long continued omission of Negroes from jury service establishes a prima facie case of systematic discrimination, and the burden of proof is then upon the state to refute it. Dunning v. State, 251 Miss. 766, 171 So. 2d 315, 1965 Miss. LEXIS 900 (Miss. 1965), cert. denied, 386 U.S. 993, 87 S. Ct. 1310, 18 L. Ed. 2d 339, 1967 U.S. LEXIS 1872 (U.S. 1967).

The question of systematic exclusion of Negroes from jury duty poses a factual situation that must be determined by the particular facts of each case as they arise from the various counties of the state. Dunning v. State, 251 Miss. 766, 171 So. 2d 315, 1965 Miss. LEXIS 900 (Miss. 1965), cert. denied, 386 U.S. 993, 87 S. Ct. 1310, 18 L. Ed. 2d 339, 1967 U.S. LEXIS 1872 (U.S. 1967).

In a prosecution of a Negro for the rape of a white victim, the lower court erred in overruling a motion to quash the indictment and the special panel where it was shown by witnesses that, to their knowledge, Negroes had never served on juries in the county where accused was tried, and although there were some Negroes qualified electors in the county, and some names of Negroes had been placed in jury box where they could be drawn as jurors, there were, in the year in which the crime was committed and the defendant was tried and convicted, no names of Negroes in the jury box. Gordon v. State, 243 Miss. 750, 140 So. 2d 88, 1962 Miss. LEXIS 403 (Miss. 1962).

The complete exclusion from jury service, of negroes in a county in which they are a majority, violates the constitutional rights of a negro charged with crime. United States ex rel. Goldsby v. Harpole, 263 F.2d 71, 1959 U.S. App. LEXIS 4557 (5th Cir. Miss.), cert. denied, 361 U.S. 838, 80 S. Ct. 58, 4 L. Ed. 2d 78, 1959 U.S. LEXIS 522 (U.S. 1959), cert. denied, 361 U.S. 850, 80 S. Ct. 109, 4 L. Ed. 2d 89, 1959 U.S. LEXIS 613 (U.S. 1959).

Petitioner’s allegation in an application for writ of habeas corpus that his conviction constituted a deprivation of his liberty without due process of law in violation of the Fourteenth Amendment to the United States Constitution because of the systematic exclusion of members of his race from the lists from which grand and petit juries were selected in the county where he was indicted and convicted, and because of his ignorance and circumstances of his arrest and incarceration, and as a consequence of the law of Mississippi he was not able to challenge the competency of the grand jury, together with a showing of the speed in which the petitioner was tried following his indictment, were sufficient to entitle the petitioner to a hearing on the question of whether he had adequately safeguarded his constitutional rights during his trial for murder. United States ex rel. Goldsby v. Harpole, 263 F.2d 71, 1959 U.S. App. LEXIS 4557 (5th Cir. Miss.), cert. denied, 361 U.S. 838, 80 S. Ct. 58, 4 L. Ed. 2d 78, 1959 U.S. LEXIS 522 (U.S. 1959), cert. denied, 361 U.S. 850, 80 S. Ct. 109, 4 L. Ed. 2d 89, 1959 U.S. LEXIS 613 (U.S. 1959).

In a prosecution of negro defendant for felonious assault of white person where the evidence failed to disclose any reason for the absence of the names of negroes in the jury boxes other than the mere fact that supervisors just did not place their names in the box, and no reason was given for the absence of the names of the negroes in the jury boxes, the conviction of the defendant will be reversed. Seay v. State, 212 Miss. 712, 55 So. 2d 430, 1951 Miss. LEXIS 499 (Miss. 1951).

The proof by a negro defendant on a charge for an offense against a white person, that no negro had served on a grand jury for the past thirty years is very strong evidence of purposeful racial discrimination in violation of the Fourteenth Amendment to the Constitution of the United States, which the state has the burden of disproving by showing that the names of negroes were not placed in the jury box for some other reason than the fact that they are negroes. Seay v. State, 212 Miss. 712, 55 So. 2d 430, 1951 Miss. LEXIS 499 (Miss. 1951).

Motion to quash indictment against Negro on ground that there were no Negro names listed or placed in jury-box from which grand jury was drawn is properly overruled when it appears that there were only two Negroes in county who were qualified electors and who could have served on either grand or petit juries at time juries were empanelled. Flowers v. State, 209 Miss. 86, 41 So. 2d 352, 1949 Miss. LEXIS 473 (Miss. 1949), cert. denied, 339 U.S. 946, 70 S. Ct. 800, 94 L. Ed. 1360, 1950 U.S. LEXIS 2045 (U.S. 1950).

Where record disclosed that local officers, pursuant to the admonitions of the supreme court to comply with constitutional requirements, combed the meager roster of qualified Negroes who had seen fit to register, resulting in a ratio of Negroes on the grand jury higher than the ratio of Negroes on the registration list, contention as to continuance of a prior situation of systematic and deliberate exclusion of Negroes from the jury lists resulting in void indictment in homicide case was without foundation. Patton v. State, 207 Miss. 120, 40 So. 2d 592, 1949 Miss. LEXIS 322 (Miss.), cert. denied, 338 U.S. 855, 70 S. Ct. 104, 94 L. Ed. 523, 1949 U.S. LEXIS 1796 (U.S. 1949).

The equal protection of the laws required by the Fourteenth Amendment is denied negro defendants in criminal cases in state courts by the exclusion of negroes from grand and petit juries solely because of their race, regardless of whether the discrimination is embodied in statute or is apparent from the administrative practices of state jury selection officials, and regardless of whether the system for depriving defendants of their rights is “ingenious or ingenuous.” Patton v. Mississippi, 332 U.S. 463, 68 S. Ct. 184, 92 L. Ed. 76, 1947 U.S. LEXIS 1545 (U.S. 1947).

Testimony of public officials, involved in selecting the jury list, that the prior systematic exclusion of Negroes from jury lists had been abandoned, corroborated by public records and substantial evidence revealing that there were in fact three Negroes on the grand jury which brought in the indictment against accused, and that there was a Negro on the special venire granted accused from which to select a petit jury, negatived the contention that there was systematic exclusion of Negroes from the list of qualified jurors from which the list of grand and petit juries were drawn. McGee v. State, 40 So. 2d 160 (Miss.), cert. denied, 338 U.S. 805, 70 S. Ct. 77, 94 L. Ed. 487, 1949 U.S. LEXIS 1886 (U.S. 1949).

Where evidence disclosed that no negroes were on the grand jury that indicted a negro, and that no negroes had served on the grand and petit juries of the county for a long number of years, although there were at all times in the county negroes who were qualified for jury service, the indictment should be quashed, since State failed to meet its burden of showing that negroes were not excluded from a jury list because of race by testimony of members of the Board of Supervisors that they, in preparing the jury list, put the names of persons on the list who were qualified for jury service without regard to and without knowing whether they were members of the white or negro race. McGee v. State, 203 Miss. 592, 33 So. 2d 843, 1948 Miss. LEXIS 311 (Miss. 1948).

A negro is entitled under the equal protection clause to a grand jury from which negroes have not been purposely excluded. Farrow v. State, 91 Miss. 509, 45 So. 619, 1907 Miss. LEXIS 130 (Miss. 1907).

86. – Jury selection, racial discrimination.

Defendant’s Batson challenges were without merit, even though the State did ask more questions of potential African-American jurors than white jurors, because disparate questioning alone was not dispositive of purposeful discrimination. The State’s contention that the additional questions were asked to clarify and follow up on certain issues was supported by the record. Flowers v. State, 158 So.3d 1009, 2014 Miss. LEXIS 569 (Miss. 2014), vacated, — U.S. —, 136 S. Ct. 2157, 195 L. Ed. 2d 817, 2016 U.S. LEXIS 3930 (U.S. 2016).

In a capital murder case, defendant’s rights under the Equal Protection Clause were violated by the state’s continuous striking of African-American jurors, whose views on the death penalty were virtually indistinguishable from those of similarly situated white jurors who went unchallenged by the state, thereby raising an inference of racial discrimination. Flowers v. State, 947 So. 2d 910, 2007 Miss. LEXIS 24 (Miss. 2007).

In defendant’s capital murder case, the striking of an African-American juror was suspect because there was no evidence in the record to show that she had any connection with members of defendant’s family, despite the fact that she had previously worked at the same business as those family members. Flowers v. State, 947 So. 2d 910, 2007 Miss. LEXIS 24 (Miss. 2007).

In defendant’s capital murder case, the striking of an African-American juror was suspect because his opposition to the death penalty was not as strong as that of two white jurors who served, and the genuineness of the juror’s prior jury service as a reason for the state to strike him was questionable since the state failed to voir dire other white jurors concerning their prior jury service. Flowers v. State, 947 So. 2d 910, 2007 Miss. LEXIS 24 (Miss. 2007).

State’s actions in striking an African American juror in a capital murder case were specious as there was no evidence in the record to support the state’s proffered reason for striking her, and it appeared that the state fabricated a supposedly race-neutral reason in an attempt to strike yet another African American juror. Flowers v. State, 2006 Miss. LEXIS 356 (Miss. June 29, 2006).

In defendant’s trial for the sale of cocaine, the prosecutor’s reasons for striking two potential African-American jurors, based on age and marital status in one instance, and because a juror had had regular contact with defendant in a second instance, were sufficiently race-neutral to survive defendant’s Batson challenges. Rogers v. State, 891 So. 2d 268, 2004 Miss. App. LEXIS 1041 (Miss. Ct. App. 2004).

Where four African-Americans were struck from jury, the State’s arguments that it had prosecuted many defendants in area with their last names, that one was related to a prior defendant who made accusations against the judicial system, and one was unemployed and failed to complete questionnaire, the reasons were sufficiently race neutral to survive defendant’s Batson challenge. Clay v. State, 881 So. 2d 354, 2004 Miss. App. LEXIS 852 (Miss. Ct. App. 2004).

In an aggravated assault case, there was no error in the trial court’s decision that the State provided race-neutral reasons for its peremptory challenges, based on the response by two jurors to a question of whether any family member or close friend had ever been charged with a crime, and another juror’s friendship with defendant. Robinson v. State, 870 So. 2d 669, 2004 Miss. App. LEXIS 307 (Miss. Ct. App. 2004).

Mississippi Supreme Court has held that the trial judge is afforded great deference in determining if the expressed reasons for exclusion of a venire person from the challenged party is in fact race neutral. Murphy v. State, 868 So. 2d 1030, 2003 Miss. App. LEXIS 1161 (Miss. Ct. App. 2003), cert. denied, 868 So. 2d 345, 2004 Miss. LEXIS 297 (Miss. 2004).

One of the reasons the trial court is granted such deference in a Batson issue is that the demeanor of the attorney making the challenge is often the best evidence on the issue of race neutrality; the judge is in the best position to assess the overall credibility of the statements made in voir dire and by presenters of the peremptory strikes. Murphy v. State, 868 So. 2d 1030, 2003 Miss. App. LEXIS 1161 (Miss. Ct. App. 2003), cert. denied, 868 So. 2d 345, 2004 Miss. LEXIS 297 (Miss. 2004).

Where defense counsel exercised peremptory strikes on two white jurors, and in response to the State’s Batson challenge, counsel stated he had a “bad feeling” about the jurors due to their demeanor, the trial court’s denial of the peremptory strikes on grounds that this was not a race-neutral reason was not clearly erroneous. Murphy v. State, 2003 Miss. App. LEXIS 683 (Miss. Ct. App. Aug. 5, 2003), op. withdrawn, sub. op., 868 So. 2d 1030, 2003 Miss. App. LEXIS 1161 (Miss. Ct. App. 2003).

The defendant failed to make a prima facie showing as to the number of African Americans in the jury pool where he asserted that out of the 50 venire persons present to participate in the jury selection process only four (or eight percent) were African American and that the percentage of eligible African Americans in the county was several times eight percent, but there were no indicia of prejudice or fraud in the method used by the clerk of the lower court in the selection of venire persons. Wilks v. State, 811 So. 2d 440, 2001 Miss. App. LEXIS 102 (Miss. Ct. App. 2001).

Evidence presented by defendant did not satisfy pre- Batson . Swain test for equal protection challenge to state’s use of peremptory challenge to exclude all black jurors from both of defendant’s juries where defendant failed to allege or prove that during relevant time period no black persons served on any juries in cases involving same prosecutors; fact that prosecutors identified certain jurors by their race did not prove that prosecutors intended to strike all of those jurors from panel because of race. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

In order to prove that state used peremptory challenges in unconstitutional manner, defendant had to show that he was a member of cognizable racial group, that prosecutor exercised peremptory challenges to excuse venireperson of defendant’s case, and that there was an inference that the venirepersons were excluded on account of their race; burden thereafter shifts to state to come forward with race-neutral explanation for challenging jurors, but prosecutor’s explanation need not rise to level of challenge for cause. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

One factor in determining whether prosecutor’s race-neutral explanation for challenge to juror is pretextual is relationship with the reason to the actual facts of the case. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Prosecutor’s stated reason for peremptory challenge against juror, that juror stated that there was nothing she could do about the fact that her sister had been accused of but not charged with killing her brother and that the Lord would take care of it, was sufficiently related to murder prosecution so as not to be deemed pretextual, as her statement could be viewed as placing punishment of wrongdoer in the hands of the Lord. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Prosecutor’s basis for peremptory challenge against juror, that defense counsel had stated “I love her to death,” was sufficiently race-neutral. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

In a prosecution for capital murder and conspiracy to commit capital murder, the trial court committed reversible error in failing to place the initial burden on the State to establish a prima facie case of racial discrimination in the defendant’s use of his peremptory challenges, before concluding that the defendant failed to offer a race-neutral reason for challenging one of the jurors, since the defendant was arbitrarily and erroneously denied the use of one of his peremptory challenges, and the composition of the jury was directly altered as a result. Colosimo v. Senatobia Motor Inn, 662 So. 2d 552, 1995 Miss. LEXIS 479 (Miss. 1995).

A prosecutor’s race-neutral explanation for peremptorily striking a potential juror need not rise to the level of justifying the exercise of a challenge for cause. Davis v. State, 660 So. 2d 1228, 1995 Miss. LEXIS 287 (Miss. 1995), cert. denied, 517 U.S. 1192, 116 S. Ct. 1684, 134 L. Ed. 2d 785, 1996 U.S. LEXIS 3101 (U.S. 1996).

A trial court in a capital murder prosecution did not abuse its discretion by refusing to grant the defendant’s motion for individual sequestered voir dire of the entire venire where the court asked the collective venire about the effect of pretrial publicity or information received about the case, and the court later asked if there was any reason that a juror felt that he or she could not be fair and impartial, and anyone who responded affirmatively was questioned individually in chambers. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

In a capital murder prosecution in which a black defendant was convicted and sentenced by an all-white jury for the murders of 4 white victims, the trial court did not err by allowing the State to peremptorily strike the sole potential black juror, since the reason stated by the prosecution for the peremptory challenge that the juror indicated she would have difficulty finding suitable child care during the trial was sufficiently race-neutral. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

The trial court in a capital murder prosecution erred by not requiring the State to give racially-neutral reasons for exercising peremptory challenges against 7 out of 13 black jurors on the venire, even though there was no showing that the defendant was of a minority class, and therefore the case would be remanded for a hearing on whether the Batson criteria were violated by the State’s exercise of its peremptory challenges. Thorson v. State, 653 So. 2d 876, 1994 Miss. LEXIS 600 (Miss. 1994).

The reasons proffered by the State for using 5 of its 7 peremptory challenges against black jurors were sufficient to withstand a Batson challenge where the reasons given were (1) the juror had a brother in the penitentiary; (2) the juror had attended high school with the defendant; (3) the juror wore dark glasses in the courtroom; (4) the juror was employed in a company in which there had been a riot which was quelled by the police; and (5) the juror shared a last name with many persons in the penitentiary and the prosecutor believed he was related to an inmate, and the defense made no attempt to show that the reasons proffered were pretextual, of disparate impact, or not true. Henderson v. State, 641 So. 2d 1184, 1994 Miss. LEXIS 374 (Miss. 1994).

Some acceptable race-neutral reasons for challenging a juror are: (1) involvement in criminal activity; (2) unemployment; (3) employment history; (4) relative of juror involved in crime; (5) low income occupation; (6) juror wore gold chains, rings and watch; and (7) dress and demeanor. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

The State’s reasons for using 4 of its 5 peremptory challenges against black jurors were sufficiently race-neutral where the first juror had a pending civil lawsuit, the second juror had worked with a defense witness and the prosecution objected to his age and demeanor, the third juror had previously sat on 2 criminal juries which resulted in one “not guilty” verdict and one mistrial, and the prosecutor was unable to make eye contact with the fourth juror while the juror continuously made eye contact with the defendant. Harper v. State, 635 So. 2d 864, 1994 Miss. LEXIS 201 (Miss. 1994), limited, Flowers v. State, 947 So. 2d 910, 2007 Miss. LEXIS 24 (Miss. 2007).

A trial judge is required to make an on-the-record factual determination that each reason proffered by the State for exercising a peremptory challenge is, in fact, race neutral; this requirement is to be prospective in nature. Hatten v. State, 628 So. 2d 294, 1993 Miss. LEXIS 522 (Miss. 1993).

The State successfully rebutted a black defendant’s Batson challenge to the State’s exercise of peremptory challenges to eliminate four black venire members where 2 of the venire members were challenged because they were of an age to be employed and had no occupation, and the other 2 were challenged because they were acquainted with the defendant or her family. Porter v. State, 616 So. 2d 899, 1993 Miss. LEXIS 115 (Miss. 1993).

The Batson rule applies to both a prosecutor’s and a defendant’s peremptory challenges. Griffin v. State, 610 So. 2d 354, 1992 Miss. LEXIS 749 (Miss. 1992).

A defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in the defendant’s case; a defendant may establish a prima facie case of purposeful discrimination in selection of the jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial. Griffin v. State, 607 So. 2d 1197, 1992 Miss. LEXIS 603 (Miss. 1992).

A white defendant had standing to object to the State’s use of 5 of its 6 peremptory challenges to strike black jurors; however, the defendant failed to establish a prima facie case of discrimination where the State offered race neutral reasons for striking each individual black juror and the defendant’s attorney offered no evidence to rebut the State’s reasons for striking the jurors. Green v. State, 597 So. 2d 656, 1992 Miss. LEXIS 206 (Miss. 1992).

A defendant failed to establish a prima facie case of racial discrimination in jury selection, even though the defendant was black and the prosecution exercised peremptory challenges to eliminate 3 black jurors, where the jurors were excluded because they were acquainted with the defendant; while excluding jurors on the ground that they were acquainted with the defendant might have had a discriminatory effect since the defendant’s acquaintances were primarily black, the law does not proscribe the mere incidental exclusion of blacks from a jury. Govan v. State, 591 So. 2d 428, 1991 Miss. LEXIS 836 (Miss. 1991).

A county’s jury venire selection did not systematically exclude blacks in violation of a black defendant’s constitutional equal protection rights, even though there were only 2 blacks out of 12 on the jury which rendered a verdict against the defendant when 37 percent of the county was black, where the jury selection was based upon voter registration lists of the county without regard to race. Harris v. State, 576 So. 2d 1262, 1991 Miss. LEXIS 121 (Miss. 1991).

The reasons given by a district attorney for exercising a peremptory challenge to excuse a black juror were sufficiently race-neutral where the district attorney stated that the juror was a truck driver “which may or may not mean he’s a transient,” the juror wore overalls with a black T-Shirt in the courtroom, and he was unmarried and did not have children “which shows that he doesn’t have a stake in the community like somebody that’s established.” Bradley v. State, 562 So. 2d 1276, 1990 Miss. LEXIS 267 (Miss. 1990).

A murder defendant’s argument that the jury was patently flawed because the jury was white and the defendant was black was without merit. The mere fact that a jury is white and a defendant is black does not violate Batson, but rather it is the racially discriminatory exercise of peremptory challenges to strike black jurors from the jury that violates the Batson rule. Sudduth v. State, 562 So. 2d 67, 1990 Miss. LEXIS 235 (Miss. 1990).

Defendant in capital case involving interracial crime is constitutionally entitled to have prospective jurors informed of race of victim and questioned on racial bias. Turner v. Murray, 476 U.S. 28, 106 S. Ct. 1683, 90 L. Ed. 2d 27, 1986 U.S. LEXIS 148 (U.S. 1986), limited, Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836, 1991 U.S. LEXIS 3816 (U.S. 1991).

Defendant in criminal case must timely object to prosecution’s racially discriminatory use of peremptory challenges in order to preserve constitutional claim. Thomas v. Moore, 866 F.2d 803, 1989 U.S. App. LEXIS 2369 (5th Cir. Miss.), cert. denied, 493 U.S. 840, 110 S. Ct. 124, 107 L. Ed. 2d 85, 1989 U.S. LEXIS 4452 (U.S. 1989).

Defendant was barred from asserting claim of state’s abuse of its peremptory challenges to exclude all blacks from defendant’s jury, which allegedly deprived him of his right to representative jury and to due process of law, where record failed to reflect that defendant had made contemporaneous objection to prosecuting attorney’s use of peremptory challenges. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Under Batson v Kentucky (1986) 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct 1712, defendant raising claim must show (1) he is member of “cognizable racial group;” (2) prosecutor has exercised peremptory challenges toward elimination of veniremen of his race; and (3) facts and circumstances infer that prosecutor used his peremptory challenges for purpose of striking minorities. These components constitute prima facie showing of discrimination necessary to compel state to come forward with neutral explanation for challenging black jurors. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Jury selection was properly conducted and jurors were not excluded on basis of race where black jurors were excluded for following race-neutral reasons: (1) 22-year-old laborer with eleventh-grade education was stricken because his youth, marital status, and educational level appeared to prosecutor to indicate instability; (2) 49-year-old minister/bus driver was stricken because he was preacher; (3) 35-year-old housewife was removed because she did not reveal her brother’s conviction for armed robbery; (4) 38-year-old cafeteria hostess was challenged because of her concerns about sequestration due to having to care for invalid mother; and (5) 25-year-old was stricken from panel because he wore hat into courtroom and his general demeanor suggested to prosecutor that he was unstable, unconcerned, and had no respect for proceedings. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Claim that court erred in permitting state to systematically exclude black veniremen by peremptory challenge, where no objection was raised either during trial or on motion for new trial, was waived and counsel’s excuse for waiving claim at trial, that under prior law he felt he would be unsuccessful on point, was insufficient. Jones v. State, 517 So. 2d 1295, 1987 Miss. LEXIS 2296 (Miss. 1987), vacated, 487 U.S. 1230, 108 S. Ct. 2891, 101 L. Ed. 2d 925, 1988 U.S. LEXIS 3048 (U.S. 1988), overruled, Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

Statement by prosecuting attorney that State denied systematically excluding blacks from jury panel and that record should reflect that state had used peremptory challenge on an individual male who was white was inadequate response under Batson v. Kentucky (1986) 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, where record established that prosecutor did use peremptory strikes in manner resulting in removal of all black persons from jury panel. Case was remanded to give prosecuting attorney opportunity to explain peremptory challenges because Batson was decided after instant case had already been completed. Williams v. State, 507 So. 2d 50, 1987 Miss. LEXIS 2445 (Miss. 1987).

Absence of black jurors on jury panel after peremptory challenge by state of only black person who has been called as prospective juror does not violate defendant’s right to impartial jury and equal protection where no request has been made for evidentiary hearing and there is nothing to indicate willful, systematic exclusion of black persons from jury. Belino v. State, 465 So. 2d 1043, 1985 Miss. LEXIS 1968 (Miss. 1985).

The issue of whether a capital murder conviction should be reversed because the prosecutor improperly used all of his peremptory challenges to exclude all blacks from the jury was not preserved for review, where the record did not reflect the race of the jurors who had been peremptorily challenged by the prosecutor. Booker v. State, 449 So. 2d 209, 1984 Miss. LEXIS 1682 (Miss.), cert. denied, 469 U.S. 873, 105 S. Ct. 230, 83 L. Ed. 2d 159, 1984 U.S. LEXIS 368 (U.S. 1984).

Discriminatory exclusion of Negroes from the venire is in violation of a defendant’s rights under the Fourteenth Amendment. Watts v. State, 196 So. 2d 79, 1967 Miss. LEXIS 1475 (Miss. 1967).

Although it is settled law that systematic and discriminatory exclusion of Negroes from jury service is unconstitutional, this Amendment does not require proportionate representation of the races on a jury, or even that members of a particular race must be on a particular jury, but, as a practical matter, what is required is that county officials must see to it that the jurors are in fact and in good faith selected without regard to race. Harper v. State, 251 Miss. 699, 171 So. 2d 129, 1965 Miss. LEXIS 894 (Miss. 1965).

Peremptory challenge exercised by the state against one African American juror in a capital murder case was clearly pretextual as there was no basis in the record for two of the grounds proffered by the state, and the state’s third ground was predicated on the jury’s acquaintance with defendant’s sister 10 years prior, a tenuous relationship at best. Flowers v. State, 2006 Miss. LEXIS 356 (Miss. June 29, 2006).

87. – Race-neutral exercise of per-emptory challenges, impartial jury.

In a capital murder case, the trial court did not err in denying defendant’s Batson challenges; the evidence indicated that the State’s reasons for its peremptory strikes were valid and not merely pretextual. Flowers v. State, 240 So.3d 1082, 2017 Miss. LEXIS 431 (Miss. 2017).

Defendant’s Batson challenges were without merit where the State provided multiple race-neutral reasons for the peremptory strikes against each of the five African-Americans, including their knowledge of defense witnesses, knowledge of defendant’s family, views on the death penalty, and hesitation about serving as a juror. The evidence indicated that the race-neutral reasons were valid and not merely pretextual. Flowers v. State, 158 So.3d 1009, 2014 Miss. LEXIS 569 (Miss. 2014), vacated, — U.S. —, 136 S. Ct. 2157, 195 L. Ed. 2d 817, 2016 U.S. LEXIS 3930 (U.S. 2016).

Trial court’s denial of defendant’s Batson challenge was not clearly erroneous because the reasons offered by the State were race-neutral and supported by the record; the State’s use of the two peremptory strikes in question did not evince such a clear pattern of discrimination that its proffered explanations for the strikes were mere pretext. McCoy v. State, 147 So.3d 333, 2014 Miss. LEXIS 470 (Miss. 2014).

Defendant’s equal protection rights were not violated because, although defendant, who was an African-American, was tried by an all-white jury, the State of Mississippi provided race neutral reasons for exercising peremptory challenges on African-American jurors, the death-qualification process itself did not disproportionately impact African-American venire persons, and the trial court did not abuse its discretion in denying defendant’s challenges to jurors for cause. Batiste v. State, 121 So.3d 808, 2013 Miss. LEXIS 295 (Miss. 2013), cert. denied, 572 U.S. 1117, 134 S. Ct. 2287, 189 L. Ed. 2d 178, 2014 U.S. LEXIS 3424 (U.S. 2014).

If a prosecutor’s distrust of a venire member is a race-neutral reason, then a defendant’s distrust must be as well, and a trial court cannot deprive defendants of their right to a peremptory strike unless the trial judge properly conducts the analysis outlined in Batson; the Batson analysis has three steps, and it is imperative that a trial judge follow those steps accordingly, and when a trial judge erroneously denies a defendant a peremptory strike by failing to conduct the proper Batson analysis, prejudice is automatically presumed, and a court will find reversible error. Hardison v. State, 94 So.3d 1092, 2012 Miss. LEXIS 383 (Miss. 2012).

Trial could erroneously denied defendant a peremptory strike by holding that a juror’s previous service on a jury in a criminal case was not a race-neutral reason for the strike because defendant’s reason for the peremptory challenge, that the juror’s responses about a prior jury experience indicated he could be pro-prosecution, qualified as race-neutral; the trial could never addressed the issue of pretext but simply held that the stated reason was not race-neutral, and the denial of defendant’s peremptory challenge without a proper Batson analysis constituted reversible error. Hardison v. State, 94 So.3d 1092, 2012 Miss. LEXIS 383 (Miss. 2012).

Defendant’s right to a fair trial under Batson was not violated by the prosecutor’s use of peremptory strikes because a large number of potential jurors knew defendant, defendant’s mother, defendant’s family, potential witnesses in the case, or the attorneys; the other peremptory challenges by the state were used against a juror whose son was a witness, two jurors who were close friends of the family, and another juror who had a close family member prosecuted by the same district attorney’s office. Fisher v. State, 989 So. 2d 893, 2007 Miss. App. LEXIS 687 (Miss. Ct. App. 2007), cert. denied, 993 So. 2d 832, 2008 Miss. LEXIS 429 (Miss. 2008).

Where defendant raised a Batson challenge during voir dire, the prosecutor gave gender as her race-neutral reason for striking an African-American juror; allowing the state to exclude the potential juror based on his gender was a violation of the equal protection clause; the entire judicial process was infected, warranting a new trial. McGee v. State, 953 So. 2d 211, 2007 Miss. LEXIS 19 (Miss. 2007).

In a capital murder case, defendant’s Batson challenge was meritless because the prosecution set forth race-neutral reasons for its use of peremptory strikes on African-American jury pool members; a failure to understand the proceedings, service on a prior jury that acquitted, reluctance to serve due to employment, lack of belief in the death penalty, and a failure to complete a jury questionaire were all race-neutral reasons. Le v. State, 913 So. 2d 913, 2005 Miss. LEXIS 151 (Miss.), cert. denied, 546 U.S. 1004, 126 S. Ct. 622, 163 L. Ed. 2d 508, 2005 U.S. LEXIS 8254 (U.S. 2005).

Trial court overruled defendant’s Batson challenge because two white jurors were challenged by the State and the State had two remaining peremptory challenges which it did not exercise, which would indicate that the State did not attempt to exclude jurors on a racial basis. Because defendant did not establish a prima facie case that the State excluded jurors on the basis of race, there was no need for the State to present race-neutral reasons for its peremptory strikes. Moore v. State, 914 So. 2d 185, 2005 Miss. App. LEXIS 60 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 745 (Miss. 2005).

Defendant failed to prove that the State used its peremptory strikes in a discriminatory manner as defendant (1) failed to preserve the record for the voir dire; and (2) did not show the racial composition of the venire, the jury, or the county. However, the record showed that the State used peremptory strikes against three African-Americans and that four African-Americans were seated on the jury, but, on those bare facts, defendant did not show a reasonable inference of purposeful discrimination or that the State attempted to systematically remove African-Americans from the venire; therefore, defendant’s Batson challenge failed. Jones v. State, 904 So. 2d 149, 2005 Miss. LEXIS 221 (Miss. 2005).

In a capital murder case, no racial bias was found in the use of peremptory strikes against minority jurors because the prosecutor cited race-neutral reasons as to each juror, including the desire to get off the jury, employment hardship, the prosecutor’s past professional difficulties with a juror, physical disability, and unemployment. Lynch v. State, 877 So. 2d 1254, 2004 Miss. LEXIS 591 (Miss. 2004), cert. denied, 543 U.S. 1155, 125 S. Ct. 1299, 161 L. Ed. 2d 122, 2005 U.S. LEXIS 1592 (U.S. 2005).

Included among the reasons accepted as race neutral are: age, demeanor, marital status, single with children, prosecutor distrusted juror, educational background, employment history, criminal record, young and single, friend charged with crime, unemployed with no roots in community, posture and demeanor indicating juror was hostile to being in court, juror was late, short term employment; the Mississippi Supreme Court has also accepted demeanor as a legitimate, race neutral basis for a peremptory challenge. Murphy v. State, 868 So. 2d 1030, 2003 Miss. App. LEXIS 1161 (Miss. Ct. App. 2003), cert. denied, 868 So. 2d 345, 2004 Miss. LEXIS 297 (Miss. 2004).

Because defense counsel, at the very least, had notice of the fact that the mental examination would take place as he signed off on the examination order, the trial court did not err in failing to suppress the inmate’s confessions. Crawford v. State, 867 So. 2d 196, 2003 Miss. LEXIS 755 (Miss. 2003), cert. denied, 543 U.S. 866, 125 S. Ct. 205, 160 L. Ed. 2d 110, 2004 U.S. LEXIS 6519 (U.S. 2004).

88. – Voting rights, racial discrimination.

Plaintiffs who showed that challenged statutes either impinged upon their protected rights to register to vote or burdened organizational efforts to assist prospective voters in registering had standing to sue to challenge Mississippi’s dual registration requirement and prohibition on satellite registration as violative of their rights and all persons similarly situated. Mississippi State Chapter, Operation Push v. Allain, 674 F. Supp. 1245, 1987 U.S. Dist. LEXIS 10925 (N.D. Miss. 1987).

Code 1972 §21-3-7 is a purposeful device conceived and operated to further racial discrimination in the voting process, and is therefore violative of the Fourteenth and Fifteenth Amendments to the United States Constitution.Stewart v. Waller, 404 F. Supp. 206, 1975 U.S. Dist. LEXIS 11446 (N.D. Miss. 1975).

89. – Election districts, racial discrimination.

Georgia’s congressional redistricting plan violated the equal protection clause of the Fourteenth Amendment where (1) the legislature subordinated traditional race-neutral districting principles to racial considerations such that race was the predominant, overriding factor explaining the legislature’s determination of district boundaries, and (2) under strict scrutiny, it could not be shown that the redistricting plan was narrowly tailored to serve a compelling governmental interest. Miller v. Johnson, 515 U.S. 900, 115 S. Ct. 2475, 132 L. Ed. 2d 762, 1995 U.S. LEXIS 4462 (U.S. 1995).

In formulating a state legislative reapportionment plan for a state, a Federal District Court should, with respect to legislative districts in areas having concentrations of Negro population, either draw legislative districts that are reasonably contiguous and compact, so as to put to rest suspicions that Negro voting strength is being impermissibly diluted, or explain precisely why in a particular instance that goal cannot be accomplished. Connor v. Finch, 431 U.S. 407, 97 S. Ct. 1828, 52 L. Ed. 2d 465, 1977 U.S. LEXIS 95 (U.S. 1977).

Use of 1982 reapportionment plan, which had been found unconstitutional, rather than court-drawn plan or plan proposed by parties, was constitutional and could properly be used on interim basis in order that primary and general elections for state legislature could take place as scheduled prior to implementation of valid, permanent plan, despite fact that 1982 plan did not maximize members of majority black districts; because of swiftness with which population changes, and high cost of creating new election districts, and in view of lack of sufficient time to conduct full hearings and fact that proponents of one proposed plan failed to show that plan cured objections by United States Attorney General, and since possibility of corrective relief at later date existed, use was appropriate. Watkins v. Mabus, 771 F. Supp. 789, 1991 U.S. Dist. LEXIS 12646 (S.D. Miss.), aff'd in part, vacated in part, 502 U.S. 954, 112 S. Ct. 412, 116 L. Ed. 2d 433, 1991 U.S. LEXIS 6598 (U.S. 1991).

A city’s annexation of a particular area was constitutionally valid, where the population of the annexed area was roughly 50 percent white and 50 percent black, and where the annexation left the overall population and the voting age population in roughly the same racial makeup as it had been prior to the annexation, notwithstanding the allegation that a particular area had been excluded from the annexation on the basis that all its residents were black. Enlargement of Boundaries v. Yazoo City, 452 So. 2d 837, 1984 Miss. LEXIS 1748 (Miss. 1984).

The fact that a black had never won an at-large election in a city in which blacks comprised a majority of its total population as well as a majority of its voting age population was not sufficient in itself to prove an unconstitutional dilution of black voting strength in an action challenging the apportionment of the city’s municipal wards. Canton Branch, NAACP v. Canton, 472 F. Supp. 859, 1978 U.S. Dist. LEXIS 15332 (S.D. Miss. 1978).

90. – Schools and school districts, racial discrimination.

Actions on part of state officials conclusively demonstrated they were fulfilling their affirmative duty to disestablish former dejure segregated system of higher education by adopting race-neutral policies and procedures in areas of student administration and recruitment, faculty and staff hiring, and resource allocation; they had also undertaken substantial affirmative efforts in areas of other-race student and faculty-staff recruitment, funding, and facility allocation. Differentiations made by officials with respect to each of individual institutions in designation of institutional missions were reasonable and not motivated by discriminatory purpose. Ayers v. Allain, 674 F. Supp. 1523, 1987 U.S. Dist. LEXIS 11692 (N.D. Miss. 1987), rev'd, 893 F.2d 732, 1990 U.S. App. LEXIS 1414 (5th Cir. Miss. 1990), aff'd, 914 F.2d 676, 1990 U.S. App. LEXIS 17182 (5th Cir. Miss. 1990), vacated, 970 F.2d 1378, 1992 U.S. App. LEXIS 19122 (5th Cir. Miss. 1992).

The only authority that a federal court has to order desegregation or busing in a local school district arises from the Federal Constitution, but state courts are free to interpret the state constitution to impose more stringent restrictions on the operation of a local school board. Bustop, Inc. v. Board of Educ., 439 U.S. 1380, 99 S. Ct. 40, 58 L. Ed. 2d 88, 1978 U.S. LEXIS 4307 (U.S. 1978).

Though a school district had recently been desegregated, the process had been accomplished without problems by the time of non-rehire of plaintiff, a black high school teacher, and her employment rights thus were properly measured by general principles of contract and state law; the district had in fact hired more white than black replacement teachers, explaining that the disparity was due to greater turnover among white teachers, and it was cautioned henceforth to employ teachers, and to consider plaintiffs application for re-employment, solely on objective criteria and without regard to any fixed racial hiring ratio. McCormick v. Attala County Bd. of Education, 407 F. Supp. 586, 1976 U.S. Dist. LEXIS 17139 (N.D. Miss.), vacated, 541 F.2d 1094, 1976 U.S. App. LEXIS 6394 (5th Cir. Miss. 1976).

Ability grouping of students, which resulted in all-black sections within each grade, was enjoined in a formerly segregated district until the district has operated as a unitary system without such assignments for a sufficient period of time to assure that the under-achievement of the slower groups is not due to prior educational disparities; the bar may be lifted when the district can show that steps taken to bring disadvantaged students to peer status have ended the educational disadvantages caused by prior segregation. McNeal v. Tate County School Dist., 508 F.2d 1017, 1975 U.S. App. LEXIS 16133 (5th Cir. Miss. 1975).

Where evidence showed that the county supervisors had leased unused school buildings located on “sixteenth section land” to a civic association in good faith and without any knowledge that it would subsequently be used to house a private segregated school, such lease was not set aside; however, the sublease by the civic association to the whites-only private academy had a “chilling effect” on the operation of recently desegregated public schools and was set aside. United States v. Mississippi, 499 F.2d 425, 1974 U.S. App. LEXIS 7103 (5th Cir. Miss. 1974).

Although a county board of supervisors is entitled to lease sixteenth section land for a nominal sum, it is well established that the state, acting through its various local bodies, is charged with the affirmative duty to take whatever steps might be necessary to bring about a unitary educational system free of racial discrimination, and where the state is the lessor of a former public school converted into a segregated private school, located on property specifically designated for the benefit of the public schools, there is a state involvement with such schools, and under such circumstances the proscriptions of the Fourteenth Amendment against racial discrimination by the state must be complied with by the lessee and sublessee as certainly as though they were binding covenants written into the agreement itself. United States v. Mississippi, 476 F.2d 941, 1973 U.S. App. LEXIS 10578 (5th Cir. Miss. 1973), vacated, 499 F.2d 425, 1974 U.S. App. LEXIS 7103 (5th Cir. Miss. 1974).

Coahoma counties school board’s proposed plan that all white students in grades 7 through 12 in the district, would be assigned to the county junior-senior high school attendance center, and that sufficient number of students would be assigned so that the student body would be composed of 80 percent white and 20 percent black children, and that the remaining black students in grades 9 through 12 would attend the county agricultural high school, and black students in 7 and 8 would attend neighborhood schools, would not be sufficient to eliminate a dual school system and was constitutionally impermissible. Taylor v. Coahoma County School Dist., 330 F. Supp. 174, 1970 U.S. Dist. LEXIS 11054 (N.D. Miss. 1970), aff'd, 444 F.2d 221, 1971 U.S. App. LEXIS 9525 (5th Cir. Miss. 1971).

A plan for desegregating the schools of Coahoma County, Mississippi, would be adopted which would assign students in the first eight grades to neighborhood schools, after which the district would be zoned for the assignment of students in grades 9 through 12 to the county high school operated by the school district, and to the county agricultural high school operated by the junior college district. Taylor v. Coahoma County School Dist., 330 F. Supp. 174, 1970 U.S. Dist. LEXIS 11054 (N.D. Miss. 1970), aff'd, 444 F.2d 221, 1971 U.S. App. LEXIS 9525 (5th Cir. Miss. 1971).

The statute providing for state financial assistance in the form of tuition grants to students attending private schools encourages, facilitates, and supports the establishment of private schools operated on a racially segregated basis as an alternative available to white students seeking to avoid desegregated public schools, and such state tuition grants tend in a determinative degree to perpetuate segregation, thereby violating the equal protection clause of the Fourteenth Amendment. Coffey v. State Educational Finance Com., 296 F. Supp. 1389, 1969 U.S. Dist. LEXIS 10508 (S.D. Miss. 1969).

A statute authorizing the establishment of an agricultural high school, to be supported by a tax on all taxable property in the county, for the instruction of the white youth of the county, denies to negroes the equal protection, and abridges the equal privileges, guaranteed by the Fourteenth Amendment. McFarland v. Goins, 96 Miss. 67, 50 So. 493, 1909 Miss. LEXIS 18 (Miss. 1909).

91. – Correctional facilities, racial discrimination.

Prison inmates are protected from racial discrimination in job assignments by the equal protection clause of the Fourteenth Amendment. Terrell v. State, 573 So. 2d 732, 1990 Miss. LEXIS 821 (Miss. 1990).

The district court’s findings that the policy of segregating inmates in housing facilities at the Mississippi State Penitentiary, unrelated to prison security and discipline, was in violation of the equal protection clause of the Fourteenth Amendment, and the relief therein granted, were affirmed. Gates v. Collier, 501 F.2d 1291, 1974 U.S. App. LEXIS 6790 (5th Cir. Miss. 1974).

92. Administrative proceedings.

In a case involving a certificate of need, procedural due process rights were not violated where all of the steps under Miss. Code Ann. §41-7-197 were followed; no parties to the proceeding, no health care facilities in the same health care service area, and no others originally noticed, appeared to request a new hearing. The issue of import to satisfy the requirements of the Mississippi State Health Plan was not the specific route, but rather the number of procedures, and notice of a new route was given. Miss. State Dep't of Health v. Baptist Mem. Hospital-DeSoto, Inc., 984 So. 2d 967, 2008 Miss. LEXIS 323 (Miss. 2008).

Trial court erred in overturning a board’s denial of an application for a funeral service license where the applicant stated that he planned to do his training in Mississippi, but actually worked in Tennessee; at the board’s hearing, the applicant was allowed to present witnesses and other forms of evidence, and his due process concerns were adequately addressed. Miss. State Bd. of Funeral Servs. v. Coleman, 944 So. 2d 92, 2006 Miss. App. LEXIS 386 (Miss. Ct. App.), cert. denied, 946 So. 2d 368, 2006 Miss. LEXIS 730 (Miss. 2006).

There was no due process violation with respect to doctors on the Mississippi Public Employees’ Retirement System Medical Board examining claimants, making a diagnosis and recommendation, and then voting as members of the Medical Board on the disability claims; therefore, the denial of a disability claim was upheld. Flowers v. Public Emples. Ret. Sys., 2006 Miss. App. LEXIS 247 (Miss. Ct. App. Apr. 4, 2006), op. withdrawn, sub. op., 952 So. 2d 972, 2006 Miss. App. LEXIS 778 (Miss. Ct. App. 2006).

Since attorney disciplinary proceedings are not criminal in nature, the complaint tribunal erred in applying the factors set forth. The Mississippi Bar v. An Attorney, 636 So. 2d 371, 1994 Miss. LEXIS 111 (Miss. 1994).

The Rules of Discipline for the Mississippi State Bar do not violate due process or § 33 of the Mississippi Constitution; attorney disciplinary proceedings are an integral part of the functioning of the judicial branch and thus are not subject to the “legislative power” vested in § 33. Hall v. The Mississippi Bar, 631 So. 2d 120, 1993 Miss. LEXIS 568 (Miss. 1993).

There is no suggestion of partiality or impropriety in the use of an assistant attorney general as a hearing officer in a hearing before the Department of Natural Resources Permit Board; the attorney general’s office affords counsel to state agencies and there is no conflict or suggestion of unfairness in this arrangement. Thus, an environmental organization, which objected to a modified air emissions permit and was afforded an administrative hearing before the Natural Resources Permit Board, was not denied due process of law on the ground that the hearing officer who sat with the Board was a special assistant attorney general. Furthermore, the environmental organization waived any objections it might have had where it made no objection before the Board and proceeded through the hearing without objection, and the organization admitted having knowledge of the identity of the hearing officer as an assistant attorney general well before the hearing and in time to object if any legitimate objection existed. United Cement Co. v. Safe Air for Environment, Inc., 558 So. 2d 840, 1990 Miss. LEXIS 61 (Miss. 1990).

A litigant is not shut off from all remedies for discovery merely because the rules of civil procedure do not apply to administrative proceedings or because the rules of the administrative agency do not promote it. In appropriate cases, a “pure bill for discovery” will lie and statutory remedies may be available to the end that due process be afforded. State Oil & Gas Bd. v. McGowan, 542 So. 2d 244, 1989 Miss. LEXIS 184 (Miss. 1989).

93. Civil practice and procedure – In general.

Where Louisiana auto dealer’s radio ads reached into Mississippi, dealer sold autos to Mississippi residents, and contracted with plaintiff bank in Mississippi, its contacts with Mississippi, though minimal, allowed that state to exercise personal jurisdiction over the dealer; moreover, since the dealer’s facilities were not far from the forum, it was not unfair to force it to defend in Mississippi. BankPlus v. Toyota of New Orleans, 851 So. 2d 439, 2003 Miss. App. LEXIS 684 (Miss. Ct. App. 2003).

Due process clause requires that named plaintiff in class action at all times adequately represent interests of absent class members. Larry James Oldsmobile-Pontiac-GMC Truck Co. v. GMC, 175 F.R.D. 234, 1997 U.S. Dist. LEXIS 13511 (N.D. Miss. 1997).

Where named plaintiff demonstrates so little knowledge of and involvement in case that class representative is unable to protect class interests from possibly competing class counsel interests, due process concerns require finding of inadequacy of class representation. Larry James Oldsmobile-Pontiac-GMC Truck Co. v. GMC, 175 F.R.D. 234, 1997 U.S. Dist. LEXIS 13511 (N.D. Miss. 1997).

To establish “cause” for procedural default, party is required to show that some objective external factor impeded defense counsel’s ability to comply with state’s procedural rules or to show prior determination of ineffective assistance of counsel. Martin v. Maxey, 98 F.3d 844, 1996 U.S. App. LEXIS 28836 (5th Cir. Miss. 1996).

A chancellor’s refusal to grant a motion to set aside judgment pursuant to MRCP 60(b)(6) was an abuse of discretion where the record was devoid of any notice to the defendant as to the date of the trial; notice, whether of the time and place of a hearing, the contents of a complaint, or of the specific nature of a criminal charge, is the essence of due process. Johnson v. Weston Lumber & Bldg. Supply Co., 566 So. 2d 466, 1990 Miss. LEXIS 441 (Miss. 1990), but see Koerner v. Crittenden, 635 So. 2d 833, 1994 Miss. LEXIS 184 (Miss. 1994).

The state sequestration statutes, under which property could be impounded and put beyond use during the pendency of litigation on an alleged debt, all by a writ of sequestration issued by a court clerk without notice or opportunity for an early hearing and without participation by a judicial officer, violated due process both facially and as applied. Keelon v. Davis, 475 F. Supp. 204, 1979 U.S. Dist. LEXIS 13403 (N.D. Miss. 1979).

There is entire absence of any undue restrictions placed by trial judge upon acts of counsel in trial of case where counsel was directed to refrain from delay and to get on with trial and there was delay and docket of court was crowded, and there was no prejudicial impropriety in judge’s comment upon excessive consumption of time, when counsel was not unduly restricted or his knowledge challenged or his motives impugned. Vail v. City of Jackson, 206 Miss. 299, 40 So. 2d 151, 1949 Miss. LEXIS 263 (Miss. 1949).

Disqualification of a justice of the peace to try a case does not affect the constitutionality of a judgment on a trial de novo in a circuit court. Hitt v. State, 149 Miss. 718, 115 So. 879, 1928 Miss. LEXIS 77 (Miss. 1928).

94. – Venue, civil practice and procedure.

Mississippi federal district court held that USCS Const. Amend. 14 due process principles were not offended by its finding that venue in Mississippi was proper in a Mississippi attorney’s breach of contract diversity suit against out-of-state attorneys because defendants had approached plaintiff in Mississippi to perform the multi-district litigation services upon which the suit was based. Street v. Smith, 456 F. Supp. 2d 761, 2006 U.S. Dist. LEXIS 62373 (S.D. Miss. 2006).

Section 11-11-5 [repealed], a venue statute permitting suits against power companies in any county in which a company may have a power line, is constitutional despite its provision for discretion to try a case in one of several counties, since Art III § 14 of Miss Const of 1890 and the Fourteenth Amendment of the United States Constitution (both, inter alia, imposing due process requirements), though safeguarding fundamental rights, do not extend to the forum which a state may designate for protection of such rights. Evans v. State Farm Fire & Casualty Co., 336 So. 2d 753, 1976 Miss. LEXIS 1524 (Miss. 1976).

Foreign corporations are not unconstitutionally discriminated against by a statute providing that civil action shall be commenced in a county in which some defendant is found and, if defendant is a domestic corporation in the county, within which such corporation is domiciled. Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74, 1929 Miss. LEXIS 264 (Miss. 1929).

To permit an individual sued out of the county of his residence to have the venue changed to such county while denying the privilege to a corporation, does not violate the equal protection clause. Morrimac Veneer Co.V McCalip, 129 Miss. 671, 92 So. 817, 1922 Miss. LEXIS 80 (Miss. 1922).

95. –Long arm jurisdiction, civil practice and procedure.

In a medical-malpractice action, the circuit court did not err in finding that traditional notions of fair play and substantial justice were not offended in exercising personal jurisdiction over the doctor because nothing in the record suggested that the trial court was an inefficient method of resolving the dispute or that it imposed an undue burden to have the doctor defend the suit in Mississippi. Dunn v. Yager, 58 So.3d 1171, 2011 Miss. LEXIS 204 (Miss. 2011).

In a negligence action by property owners in Mississippi regarding flooding, Mississippi had a strong interest in adjudicating the dispute because Mississippi residents were injured, Mississippi property was destroyed, and the City of Mobile, Alabama, and the Board of Water & Sewer Commissioners of the City of Mobile continued to release water from the subject reservoir. Also, the interest of the hundreds of other Mississippi property owners in obtaining convenient and effective relief was furthered by keeping the suit in Mississippi because their property was located in the county where the suit was filed; maintenance of the suit did not offend “traditional notions of fair play and substantial justice,” and application of the “long-arm” statute in the case did not violate the United States Constitution. Horne v. Mobile Area Water & Sewer Sys., 897 So. 2d 972, 2004 Miss. LEXIS 846 (Miss. 2004), cert. denied, 544 U.S. 922, 125 S. Ct. 1652, 161 L. Ed. 2d 479, 2005 U.S. LEXIS 2480 (U.S. 2005), cert. denied, 544 U.S. 922, 125 S. Ct. 1662, 161 L. Ed. 2d 480, 2005 U.S. LEXIS 2484 (U.S. 2005).

The defendant nonresident corporation was entitled to dismissal of the complaint because the court had no basis for asserting personal jurisdiction over it, notwithstanding that the alleged tort was committed partly in Mississippi where the plaintiff was residing when he discovered an allegedly erroneous credit report by the defendant, since the defendant did not have minimum contacts with Mississippi and did not purposely avail itself of the benefits and privileges of the state. Shaw v. Excelon Corp., 167 F. Supp. 2d 917, 2001 U.S. Dist. LEXIS 18090 (S.D. Miss. 2001).

In an action involving a contract between the plaintiff Mississippi corporation and the defendant Tennessee corporation involving the purchase of the defendant’s assets, the defendant was subject to personal jurisdiction in Mississippi since the defendant entered into a contract with a resident of Mississippi and that agreement was to be performed in whole or in part in Mississippi. Willowbrook Found., Inc. v. Visiting Nurse Ass'n, 87 F. Supp. 2d 629, 2000 U.S. Dist. LEXIS 2105 (N.D. Miss. 2000).

Where the defendant initiated contact with a corporation in Mississippi and placed an order for goods to be manufactured in Mississippi for sale to it, long arm jurisdiction over the defendant was constitutional. American Cable Corp. v. Trilogy Communs., Inc., 1999 Miss. App. LEXIS 566 (Miss. Ct. App. Sept. 14, 1999), op. withdrawn, sub. op., different results reached on reh'g, 754 So. 2d 545, 2000 Miss. App. LEXIS 5 (Miss. Ct. App. 2000).

The exercise of long arm jurisdiction over the defendants was appropriate where the plaintiffs alleged, and the defendants failed to rebut, that the defendants maintained ongoing business relationships within Mississippi related to the present causes of action, i.e., that the defendant private investigators conducted several investigations in Mississippi, including an investigation concerning the plaintiffs. Wells v. Taylor, 1999 U.S. Dist. LEXIS 17891 (N.D. Miss. Oct. 25, 1999).

Exercise of personal jurisdiction over nonresident defendant comports with due process principles only when two requirements are met: nonresident defendant must have purposefully availed himself of benefits and protections of forum state by establishing minimum contacts with that forum state, and exercise of personal jurisdiction over nonresident defendant must not offend traditional notions of fair play and substantial justice. Allred v. Moore & Peterson, 117 F.3d 278, 1997 U.S. App. LEXIS 18148 (5th Cir. Miss. 1997), cert. denied, 522 U.S. 1048, 118 S. Ct. 691, 139 L. Ed. 2d 637, 1998 U.S. LEXIS 71 (U.S. 1998).

Mississippi long-arm statute is not coextensive with federal due process, requiring analysis of scope of reach of statute itself. Allred v. Moore & Peterson, 117 F.3d 278, 1997 U.S. App. LEXIS 18148 (5th Cir. Miss. 1997), cert. denied, 522 U.S. 1048, 118 S. Ct. 691, 139 L. Ed. 2d 637, 1998 U.S. LEXIS 71 (U.S. 1998).

State court or federal court sitting in diversity may assert personal jurisdiction if: state’s long-arm statute applies, as interpreted by state’s courts; and due process is satisfied under Fourteenth Amendment. Allred v. Moore & Peterson, 117 F.3d 278, 1997 U.S. App. LEXIS 18148 (5th Cir. Miss. 1997), cert. denied, 522 U.S. 1048, 118 S. Ct. 691, 139 L. Ed. 2d 637, 1998 U.S. LEXIS 71 (U.S. 1998).

For court’s exercise of personal jurisdiction to comport with due process, defendant must have certain minimum contacts with forum, such that maintenance of suit does not offend traditional notions of fair play and substantial justice. Cappaert v. Walker, Bordelon, Hamlin, Theriot & Hardy, 680 So. 2d 831, 1996 Miss. LEXIS 497 (Miss. 1996).

For court’s exercise of personal jurisdiction to comport with due process, defendant’s contacts with forum must be such that he should reasonably anticipate being haled into court there. Cappaert v. Walker, Bordelon, Hamlin, Theriot & Hardy, 680 So. 2d 831, 1996 Miss. LEXIS 497 (Miss. 1996).

Joint venturer’s contacts with Louisiana, as state where radio station was purchased pursuant to joint venture agreement and where funds which joint venturer advanced were used in operating station, were sufficient to permit Louisiana courts to exercise personal jurisdiction in action brought by law firm which provided legal services to another member of venture to hold joint venturer liable on debt; lawsuit arose out of joint venturer’s contacts with forum, and even assuming that it did not, joint venturer’s contacts were systematic and continuous enough, extending over multiyear period when station was in operation, to satisfy due process. Cappaert v. Walker, Bordelon, Hamlin, Theriot & Hardy, 680 So. 2d 831, 1996 Miss. LEXIS 497 (Miss. 1996).

A nonresident defendant must do more than merely place its product in the “stream of commerce” before its actions will be deemed “purposefully directed” at Mississippi for purposes of due process analysis. Sorrells v. R & R Custom Coach Works, 636 So. 2d 668, 1994 Miss. LEXIS 240 (Miss. 1994).

A nonresident manufacturer’s placement of its product into the stream of commerce did not constitute an act “purposefully directed” toward Mississippi where there was no evidence of any activity by the manufacturer indicative of an intent to serve the Mississippi market; thus, the limitations of the due process clause prevented utilization of §13-3-57 to gain personal jurisdiction over the manufacturer. Sorrells v. R & R Custom Coach Works, 636 So. 2d 668, 1994 Miss. LEXIS 240 (Miss. 1994).

In determining whether exercise of long arm jurisdiction under state statute comports with due process requirements, court must determine whether defendant has established sufficient contacts with forum state indicating purposeful availment of privilege of conducting activities within forum and thereby invoking benefits and protection of its laws, with focus of inquiry at this stage being upon nature of underlying litigation. Falco Lime, Inc. v. Tide Towing Co., 779 F. Supp. 58, 1991 U.S. Dist. LEXIS 17756 (N.D. Miss. 1991).

Mississippi’s long arm statute’s contract provision served to confer personal jurisdiction over Illinois corporation which had entered into charter agreement with Mississippi corporation seeking damages for loss of use of barges which allegedly ran aground as result of Illinois corporation’s negligent maintenance and operation of tug. Falco Lime, Inc. v. Tide Towing Co., 779 F. Supp. 58, 1991 U.S. Dist. LEXIS 17756 (N.D. Miss. 1991).

State’s long-arm statute relating to tort actions did not authorize jurisdiction over foreign corporation which had entered into charter agreement with Mississippi corporation seeking damages for loss of use of barges which allegedly went aground as result of Illinois corporation’s negligence in maintaining and operating tug. Falco Lime, Inc. v. Tide Towing Co., 779 F. Supp. 58, 1991 U.S. Dist. LEXIS 17756 (N.D. Miss. 1991).

Under particular facts, it would not be unfair or offend due process for Mississippi court to exercise jurisdiction in suit by Mississippi corporation against Illinois corporation which had agreed to move Mississippi corporation’s barges which had become stranded in river; defendant’s activities in Mississippi were such that it could reasonably foresee being hailed into court in Mississippi. Falco Lime, Inc. v. Tide Towing Co., 779 F. Supp. 58, 1991 U.S. Dist. LEXIS 17756 (N.D. Miss. 1991).

In deciding whether federal court sitting in diversity has jurisdiction over nonresident defendant, reach of long arm statute should be determined before considering whether exercise of jurisdiction would comport with due process, for if service was defective under state statute, constitutional issue should not even be considered. Falco Lime, Inc. v. Tide Towing Co., 779 F. Supp. 58, 1991 U.S. Dist. LEXIS 17756 (N.D. Miss. 1991).

Nonresident defendant is amenable to personal jurisdiction in federal diversity case to extent permitted by state court in state in which federal court sits. Falco Lime, Inc. v. Tide Towing Co., 779 F. Supp. 58, 1991 U.S. Dist. LEXIS 17756 (N.D. Miss. 1991).

A husband had sufficient minimum contacts with Mississippi so that requiring him to submit to an adjudication of his rights in a divorce proceeding did not offend “traditional notions of fair play and substantial justice,” where the husband was physically present in Mississippi at the time he was personally served, and he was domiciled in Mississippi for years and left the state incident to separation from his spouse and family. Chenier v. Chenier, 573 So. 2d 699, 1990 Miss. LEXIS 840 (Miss. 1990).

In an action brought by a donor to set aside gifts of land, the donee “purposefully availed herself of the privilege of conducting activities” within Mississippi for purposes of due process and personal jurisdiction where she had the donation document notarized at the Chancery Clerks’ office by an official of the State. Anderson v. Sonat Exploration Co., 523 So. 2d 1024, 1988 Miss. LEXIS 193 (Miss. 1988).

Mississippi resident who traveled to Tennessee to contract with placement service and asked that firm to seek employment for him in any one of 3 states, including Tennessee, had purposely availed himself of privilege of conducting business within Tennessee such that due process was not offended by Tennessee’s assertion of in personam jurisdiction, and such that Mississippi trial judge erred in dismissing suit seeking enforcement of Tennessee judgment on ground that Tennessee did not have personal jurisdiction over defendant. Educational Placement Services v. Wilson, 487 So. 2d 1316, 1986 Miss. LEXIS 2445 (Miss. 1986).

In an action brought by a bank to foreclose its deed of trust executed by corporation and secured by the personal guarantees of five of the corporation’s stockholders, in which defendant stockholder filed a motion to dismiss, the trial court properly held that use of the state’s long-arm statute to obtain in personam jurisdiction over the non-resident defendant stockholder met the due process requirements of the Fourteenth Amendment since the defendant visited the property involved at least twice a month during the latter part of the year, since the plaintiff conferred with the defendant at least twice in the latter part of the year, and since the non-resident defendant personally guaranteed the loan from the bank to the corporation. First Mississippi Nat'l Bank v. S & K Enterprises, Inc., 460 So. 2d 839, 1984 Miss. LEXIS 2008 (Miss. 1984).

In a diversity action assertion of jurisdiction over the defendant must be consistent with the due process clause of the Fourteenth Amendment, a requirement that is controlled by federal law, even though the defendant must be amenable to service under the long arm statute of the forum state, a requirement that is controlled by the law of the forum state. Brown v. Flowers Industries, Inc., 688 F.2d 328, 1982 U.S. App. LEXIS 25419 (5th Cir. Miss. 1982), cert. denied, 460 U.S. 1023, 103 S. Ct. 1275, 75 L. Ed. 2d 496, 1983 U.S. LEXIS 4089 (U.S. 1983).

Where the Associated Press sent a dispatch from Louisiana to its Mississippi members incorrectly indicating that plaintiff, a Mississippi resident, had been convicted of marijuana possession, the district court had jurisdiction of plaintiffs libel action under the terms of the amended Mississippi long-arm statute; the AP’s contacts with Mississippi were sufficient to justify, under the due process clause, Mississippi’s exercise of its jurisdiction. Edwards v. Associated Press, 512 F.2d 258, 1975 U.S. App. LEXIS 14945 (5th Cir. Miss. 1975).

There is no defect under federal constitutional standards for limiting the long-arm statute to resident plaintiffs, since the state is not obligated to make its courts available to nonresidents, who themselves are not doing business in the state, to sue other nonresidents. American International Pictures, Inc. v. Morgan, 371 F. Supp. 528, 1974 U.S. Dist. LEXIS 12866 (N.D. Miss. 1974).

Nonresident who engages in business in this state which is subject to state control is subject to suit for damages in this state on cause of action accruing here out of business transacted in this state and is properly brought into court by service of process upon secretary of state in manner provided by Code 1942 § 1438, and statutes so providing do not violate due process or immunities and privileges clauses of federal constitution. Condon v. Snipes, 205 Miss. 306, 38 So. 2d 752, 1949 Miss. LEXIS 433 (Miss. 1949).

Nonresident engaging in business of termite eradication and control in this state under license from State Plant Board authorizing him to conduct such business is subject to action for damages in this state for breach of termite eradication and control contract entered into and to be performed in this state and may be brought into court by service of process upon secretary of state in manner provided by Code 1942, § 1438. Condon v. Snipes, 205 Miss. 306, 38 So. 2d 752, 1949 Miss. LEXIS 433 (Miss. 1949).

Question as to what constitutes doing business in this state, territorial jurisdiction and due process of law is judicial, and court is not bound by legislative declaration or definition as to what constitutes doing business, territorial jurisdiction or due process of law, unless such declaration or definition is sanctioned or authorized by constitutional limitations. Reichman-Crosby Co. v. Stone, 204 Miss. 122, 37 So. 2d 22, 1948 Miss. LEXIS 350 (Miss. 1948), dismissed, 339 U.S. 917, 70 S. Ct. 625, 94 L. Ed. 1342, 1950 U.S. LEXIS 2179 (U.S. 1950).

To subject a foreign corporation to the jurisdiction of the state courts would violate due process of law contrary to this section, unless its business in the state is of such nature and character as to warrant the inference that it has subjected itself to the local jurisdiction and is present within the state through duly authorized officers or agents within the sense of doing business as defined by the decisions of the Federal Supreme Court in its application of this provision. Lee v. Memphis Pub. Co., 195 Miss. 264, 14 So. 2d 351, 1943 Miss. LEXIS 133 (Miss. 1943).

96. – Summons or legal appearance, civil practice and procedure.

Father was subject to the chancery court’s continuing jurisdiction and received notice of the trial date; the document which gave the father notice of the hearing was a Miss. R. Civ. P. 81 summons and it listed the time and date for the father to appear, which he did, and he was present when the case was transferred to the other chancellor, such that the father had every opportunity to check with the chancery clerk’s office and the mother’s attorney regarding the case’s status. Vincent v. Griffin, 852 So. 2d 620, 2003 Miss. App. LEXIS 924 (Miss. Ct. App. 2003), rev'd, 872 So. 2d 676, 2004 Miss. LEXIS 501 (Miss. 2004).

Judgment or decree is void against defendant unless there has been legal summons or legal appearance, although defendant has full and definite knowledge of existence of action against him and his action under that knowledge is immaterial. Rice v. McMullen, 207 Miss. 706, 43 So. 2d 195, 1949 Miss. LEXIS 382 (Miss. 1949).

No man can be condemned or divested of his right until he has an opportunity of being heard and no judgment, order or decree is valid or binding upon a party who has had no notice of proceeding against him. Rice v. McMullen, 207 Miss. 706, 43 So. 2d 195, 1949 Miss. LEXIS 382 (Miss. 1949).

Code 1942 § 1852, providing method of summoning non-resident defendant in proceeding in chancery court, is jurisdictional and is one method provided by law to meet requirement of due process clause of Constitution. Rice v. McMullen, 207 Miss. 706, 43 So. 2d 195, 1949 Miss. LEXIS 382 (Miss. 1949).

97. – Service of process, civil practice and procedure.

Where defendant denied being served with process, there was no return of service in the record, and no entry in the docket book indicating that there ever was a return, defendant’s due process rights were violated and a judgment finding him in contempt and ordering him to pay educational expenses was void. Morrison v. Miss. Dep't of Human Servs., 863 So. 2d 948, 2004 Miss. LEXIS 16 (Miss. 2004).

For purposes of subsequent suit against nonresident defendants for malicious prosecution and abuse of process, nonresident defendants’ proper service-by-mail on Mississippi resident of process issued in prior Louisiana lawsuit, absent any other Mississippi nexus, provided insufficient contact with Mississippi to support exercise of personal jurisdiction, by federal district court in Mississippi, under constraints of due process clause. Allred v. Moore & Peterson, 117 F.3d 278, 1997 U.S. App. LEXIS 18148 (5th Cir. Miss. 1997), cert. denied, 522 U.S. 1048, 118 S. Ct. 691, 139 L. Ed. 2d 637, 1998 U.S. LEXIS 71 (U.S. 1998).

Complete absence of service of process offends due process and cannot be waived. Mansour v. Charmax Indus., 680 So. 2d 852, 1996 Miss. LEXIS 498 (Miss. 1996).

Extent of jurisdiction of federal court over nonresident defendant depends on whether defendant is amenable to service of process under forum state’s long arm statute and whether such exercise of jurisdiction would comport with dictates of due process. Falco Lime, Inc. v. Tide Towing Co., 779 F. Supp. 58, 1991 U.S. Dist. LEXIS 17756 (N.D. Miss. 1991).

The application of the long-arm statute did not deny defendants due process of law where, inter alia, the execution of the contract at issue occurred largely in Mississippi, following telephone negotiations initiated in the state, and where defendant partially performed its part of the contract in Mississippi. Sheridan, Inc. v. C. K. Marshall & Co., 360 So. 2d 1223, 1978 Miss. LEXIS 2322 (Miss. 1978).

A judgment obtained against a foreign corporation which owned no property and did no business in Mississippi under an attempted personal service upon an employee designated as a superintendent of the defendant corporation but who was employed by another corporation, and received no compensation from the defendant corporation, would be in violation of the due process of law clause of § 1 of Article 14 of the Constitution of the United States. Alabama, T. & N. R. Co. v. Howell, 244 Miss. 157, 141 So. 2d 242, 1962 Miss. LEXIS 433 (Miss. 1962).

Due process of law requires personal service to support a personal judgment, and, when the proceeding is strictly in personam brought out to determine the personal rights and obligations of the parties, personal service within the state or a voluntary appearance in the case is essential to acquisition of jurisdiction so as to constitute compliance with the constitutional requirement of due process. American Cas. Co. v. Kincade, 219 Miss. 653, 69 So. 2d 820, 1954 Miss. LEXIS 374 (Miss. 1954).

Statute (Laws 1940, ch 246, §§ 1437-1440) providing for service on non-residents by service of process on Secretary of State and making provision for reasonable notice and opportunity to defend, as applied to corporate citizen of another state engaged in levy construction work of large proportions in Mississippi, employing many men to operate trucks and other heavy and cumbersome machinery and equipment, is not unconstitutional as denying to such non-resident equal protection of the law, due process of law, or privileges and immunities afforded to residents. Sugg v. Hendrix, 142 F.2d 740, 1944 U.S. App. LEXIS 3496 (5th Cir. Miss. 1944).

98. – Jury trial, civil practice and procedure.

Mississippi’s exemption of jurors who are illiterate or under 21 years of age, pursuant to §13-5-1, or over 65 years of age, pursuant to §13-5-25, did not violate the defendant’s rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution.Turner v. State, 573 So. 2d 657, 1990 Miss. LEXIS 792 (Miss. 1990), cert. denied, 500 U.S. 910, 111 S. Ct. 1695, 114 L. Ed. 2d 89, 1991 U.S. LEXIS 2522 (U.S. 1991).

Where proceedings involved determination of both paternity and child support, defendant would be entitled to a jury trial on the issue of paternity, even though the child support statute did not require a jury trial. Metts v. State Dep't of Public Welfare, 430 So. 2d 401, 1983 Miss. LEXIS 2558 (Miss. 1983).

A defendant appealing a conviction of rape did not have standing to raise the issue as to whether failure to include women as qualified jurors was in violation of his rights under the Fourteenth Amendment of the Constitution. Smith v. State, 229 So. 2d 551, 1969 Miss. LEXIS 1246 (Miss. 1969).

The Fourteenth Amendment is not applicable on the issue as to whether or not women will be required to serve as jurors in a state court, the power to prescribe the qualifications of jurors being in the legislature, which may include or exclude women from jury duty. Smith v. State, 229 So. 2d 551, 1969 Miss. LEXIS 1246 (Miss. 1969).

The defendant was not deprived of due process of law and equal protection of the laws in violation of this amendment because women were totally excluded from the juries which indicted and convicted him. Reeves v. Reeves, 210 So. 2d 780, 1968 Miss. LEXIS 1521 (Miss. 1968).

Unlike classification by race, classification of persons eligible for jury duty on the basis of sex, applicable alike to all races, is not unconstitutional. Cobb v. Greenville, 187 So. 2d 861, 1966 Miss. LEXIS 1364 (Miss. 1966).

99. – Continuances, civil practice and procedure.

Trial court is not in error in refusing to grant delays and continuances in civil action to party who testifies that he has made no attempt whatsoever to gain any information which was made basis for request for delays and who has had approximately two months in which to obtain information which he desired to prepare for trial during which period no effort was made to obtain information readily available. Vail v. City of Jackson, 206 Miss. 299, 40 So. 2d 151, 1949 Miss. LEXIS 263 (Miss. 1949).

100. – Contempt, civil practice and procedure.

Chancellor did not err finding the attorney in contempt for failing to appear at the January 9 hearing where since there was no requirement that the attorney’s conduct be willful under Miss. Unif. Ch. Ct. R. 1.05, there was no merit to her argument that the contempt judgment had to be set aside for lack of willfulness on her part; it was not a violation of the Due Process Clause of the Fourteenth Amendment to hold contempt hearings in youth court abuse proceedings out of the public eye and the chancellor did not become substantially involved with the prosecution of the contempt charge. In re Spencer, 985 So. 2d 330, 2008 Miss. LEXIS 327 (Miss.), cert. denied, 555 U.S. 1046, 129 S. Ct. 629, 172 L. Ed. 2d 610, 2008 U.S. LEXIS 8600 (U.S. 2008).

A contemnor was denied due process of law where the show cause hearing for the contempt charges was conducted by the same judge who presided over the divorce proceedings and the related motion for recusal from which the alleged contempt originated, the contemnor was charged with a course of conduct that was committed, for the most part, outside the presence of the court, his conduct associated with the divorce proceedings involved the judge personally, and the judge chose to set a show cause hearing at a date subsequent to the alleged contemptuous conduct. Purvis v. Purvis, 657 So. 2d 794 (Miss. 1994), on rehearing (Miss. Apr. 27, 1995).

An award of attorney’s fees in a contempt proceeding against the husband in a divorce action was improper where the only evidence presented regarding attorney’s fees was an affidavit, with attached attorney time sheets, setting out the hours worked, the hourly rates, and costs, for a total fee of $4,450, and the husband was not present when the evidence was presented and was not given the opportunity to examine witnesses and to question the reasonableness of the award. Griffin v. Griffin, 579 So. 2d 1266, 1991 Miss. LEXIS 322 (Miss. 1991).

In an action against a husband for contempt for failing to abide by the terms of a divorce decree, the husband was deprived of due process where, after the husband was held in contempt, the chancellor did not allow him to present evidence in support of his motion for a new trial in order to prove that he had abided by the terms of the divorce decree, and the chancellor then dispensed with the husband’s motion for a new trial by denying it without hearing the additional evidence. Weeks v. Weeks, 556 So. 2d 348, 1990 Miss. LEXIS 12 (Miss. 1990).

Due process rights of defendant were met and judge was not disqualified from acting summarily on direct contempt charge committed in his presence in order to preserve integrity of court; for direct contempt the offender may be punished instantly without necessity of any proof, and judge may act upon what he has seen and heard. Varvaris v. State, 512 So. 2d 886, 1987 Miss. LEXIS 2783 (Miss. 1987).

Where speaker uttered vulgar, profane and indecent language concerning the presiding judge while the judge was in his retiring room, and where the court took testimony of deputy sheriff who heard the remarks and then took testimony of the speaker who denied making those remarks and thereafter found the speaker guilty of direct contempt and sentenced him, the presiding judge exceeded his authority in punishing the speaker without filing of an information or other definite charge against the speaker and without giving him notice of the charge and reasonable opportunity to defend himself. Ex parte Wisdom, 223 Miss. 865, 79 So. 2d 523, 1955 Miss. LEXIS 450 (Miss. 1955).

Where words are spoken concerning the presiding judge which were both contemptuous and insulting but they were spoken when the judge had retired to his chambers following the announcement of the decision, the court could not proceed to punish the speaker upon his full knowledge of facts but there had to be a hearing and the court had to rely upon the testimony of the witnesses and the speaker should have been given reasonable notice of the charges by attachment, citation or otherwise so that he may know the nature and the cause of accusation against him and that he may have a reasonable opportunity to be heard and also the speaker should have the right to obtain assistance of counsel and the right to make a record on which an order may be reviewed on appeal. Ex parte Wisdom, 223 Miss. 865, 79 So. 2d 523, 1955 Miss. LEXIS 450 (Miss. 1955).

Where language spoken concerning the presiding judge was both contemptuous and insulting and where the language had been spoken within the actual presence and hearing of the court, it merited some punishment which the court would have had the right to inflict without notice, rule to show cause, or other process. Ex parte Wisdom, 223 Miss. 865, 79 So. 2d 523, 1955 Miss. LEXIS 450 (Miss. 1955).

101. – Limitation of actions, civil practice and procedure.

Retroactive application of §81-5-105, limiting the personal liability of a former officer of a failed federal savings and loan association to gross negligence, intentional tortious conduct, intentional breach of the duty of loyalty, and corporate waste, did not violate due process as expressed in the federal and state constitutions because a vested property right in the tort action did not arise under Mississippi law until the claim was reduced to judgment; where a plaintiff has no vested right in tort claims, abrogation of those claims by legislative enactment does not constitute a deprivation of property in violation of due process. Resolution Trust Corp. v. Scott, 887 F. Supp. 937, 1995 U.S. Dist. LEXIS 8119 (S.D. Miss. 1995).

Statute of limitations for Mississippi landowner’s claims asserting due process taking violations, equal protection violations, and discrimination on account of race was Mississippi’s 3-year residual statute of limitations. Taylor v. County of Copiah, 937 F. Supp. 573, 1994 U.S. Dist. LEXIS 20977 (S.D. Miss. 1994), aff'd, 51 F.3d 1042, 1995 U.S. App. LEXIS 8212 (5th Cir. Miss. 1995).

Section 15-1-41, which limits the time within which an action may be brought to recover damages for injuries arising from the design or construction of an “improvement to real property,” does not violate the constitutional guarantee of equal protection, even though it does not apply to actions for wrongful death but applies to all other actions for damages caused by negligent construction. Phipps v. Irby Constr. Co., 636 So. 2d 353, 1993 Miss. LEXIS 418 (Miss. 1993).

Section 15-1-25 is not unconstitutional as violative of equal protection in that it provides only 4 years in which to file a claim against an estate while other tort victims have the benefit of the general 6-year statute of limitations, since the legislature’s interest in finality with respect to estates is a legitimate governmental interest and the statute of limitations is a rational means of serving that specific interest. Townsend v. Estate of Gilbert, 616 So. 2d 333, 1993 Miss. LEXIS 112 (Miss. 1993).

It is not unconstitutional to allow wrongful death plaintiffs a better statute of limitations than that applied to personal injury plaintiffs under §15-1-41. Fluor Corp. v. Cook, 551 So. 2d 897, 1989 Miss. LEXIS 463 (Miss. 1989).

An amendatory provision in a sales tax statute (Code 1942 § 10122, as amended) reducing from six years to three years the time within which suit may be brought to recover the tax is not violative of the due process clause. Stone v. McKay Plumbing Co., 200 Miss. 792, 30 So. 2d 91, 1947 Miss. LEXIS 363 (Miss. 1947).

A retroactive provision in a sales tax statute changing the limitation on the right of the taxpayer to sue to recover taxes paid is invalid in so far as it undertakes to compel a court to set aside a prior judgment in taxpayer’s favor, since the judgment conferred a vested right which could not be taken away without due process of law. Stone v. McKay Plumbing Co., 200 Miss. 792, 30 So. 2d 91, 1947 Miss. LEXIS 363 (Miss. 1947).

The state of Mississippi may not, without violating the due process clause, apply to an employee’s fidelity insurance contract entered into in another state its own statute annulling any contractual limitation of the time for giving notice of claim, although the default occurred after the removal of the insured and his employee to the state. Hartford Accident & Indem. Co. v. Delta & Pine Land Co., 292 U.S. 143, 54 S. Ct. 634, 78 L. Ed. 1178, 1934 U.S. LEXIS 703 (U.S. 1934).

Shortening a limitation period without giving reasonable time for the preservation of existing rights violates the due process clause. Bell v. Union & Planters' Bank & Trust Co., 158 Miss. 486, 130 So. 486, 1930 Miss. LEXIS 58 (Miss. 1930).

102. – Damages, civil practice and procedure.

Mississippi’s system for awarding punitive damages is not unconstitutional, and therefore the imposition of punitive damages did not violate a defendant’s constitutional right to due process. Ciba-Geigy Corp. v. Murphree, 653 So. 2d 857, 1994 Miss. LEXIS 354 (Miss. 1994).

The statutory assessment of five per cent damages in specified cases when the judgment or decree of the lower court is affirmed on appeal does not violate the due process requirements of the Fourteenth Amendment since all unsuccessful appellants in such cases, whether plaintiff or defendant, are subject to its terms. Wallace v. Jones, 360 So. 2d 932, 1978 Miss. LEXIS 2314 (Miss. 1978).

103. – Appeals, civil practice and procedure.

Action of chancery court in proceeding, at appellee’s request, with the hearing upon the merits of the cause at the time set therefor in the absence of appellant, without justifiable excuse, did not deprive appellant of his property without due process of law, nor was he denied the equal protection of the law, where it appeared that not only had the appellant been granted repeated continuances, but had also been fully advised as to the date of the hearing. Webb v. Bonner, 232 Miss. 153, 98 So. 2d 143, 1957 Miss. LEXIS 455 (Miss. 1957).

A statute limiting the right to appeal from the circuit court to the Supreme Court in cases originating in justice of the peace, municipal, or police court, does not make an unreasonable classification. Worley v. Pappas, 161 Miss. 330, 135 So. 348, 1931 Miss. LEXIS 256 (Miss. 1931).

The trial of a remanded case without the benefit of a revised opinion subsequently handed down by the appellate court, does not involve any denial of due process. Adams v. Yazoo & M. V. R. Co., 77 Miss. 194, 24 So. 200, 1899 Miss. LEXIS 36 (Miss. 1898), aff'd, 180 U.S. 1, 21 S. Ct. 240, 45 L. Ed. 395, 1901 U.S. LEXIS 1278 (U.S. 1901).

104. – Reversal on issue of damages only, civil practice and procedure.

Reversal of a personal injury action under the Federal Employers’ Liability Act on the issue of damages only does not deny due process. St. Louis S. F. R. Co. v. Bridges, 159 Miss. 268, 131 So. 99, 1930 Miss. LEXIS 361 (Miss. 1930), cert. denied, 283 U.S. 848, 51 S. Ct. 494, 75 L. Ed. 1456, 1931 U.S. LEXIS 376 (U.S. 1931).

Failure to remand cause for a new trial on issue of liability as well as of damages, on holding the verdict excessive, is not a denial of due process or equal protection. New Orleans & N. E. R. Co. v. Snelgrove, 148 Miss. 890, 115 So. 394, 1927 Miss. LEXIS 100 (Miss. 1927), cert. denied, 277 U.S. 596, 48 S. Ct. 559, 72 L. Ed. 1006, 1928 U.S. LEXIS 797 (U.S. 1928).

105. Juvenile practice and procedure.

Where police chief, who had apprehended students after responding to report of fight on or near school property, noticed single profanity written in dust on his car when he arrived at police station with four of students, and made several of them wash it and several other vehicles, students were entitled to partial summary judgment that their Fourteenth Amendment Rights were violated by being forced to wash car; and although no physical harm occurred, violation was not de minimis, considering plaintiff’s age and fact that exercise took place in view of passersby and of news media; “punishment” of pretrial detainees is prohibited and although regulatory restraints incident to detention are permissible, they must be reasonably related to legitimate goal, and in instant case were not. C-1 v. Horn Lake, 775 F. Supp. 940 (N.D. Miss. 1990).

Minors were entitled to some form of due process prior to being placed in a detention center that placed extensive restrictions on its residents. In Interest of M.I., 519 So. 2d 433, 1988 Miss. LEXIS 38 (Miss. 1988).

The juvenile laws were not of such “irrational disparity” in the treatment of offenders as to violate the Fourteenth Amendment, despite the defendant’s argument that if he had been charged with assaulting his victim with the intent to rape, maim, or even murder her, rather than with rape, he would have been remitted to custody for rehabilitation as a juvenile offender rather than prosecuted as an adult. Smith v. State, 229 So. 2d 551, 1969 Miss. LEXIS 1246 (Miss. 1969).

An order waiving Youth Court jurisdiction over a 15-year-old minor charged with the offense of burglary which does not affirmatively show that a hearing was had in the presence of the minor and his parents, that the minor was represented by counsel, or that the right to counsel was properly waived, is fatally defective. Hopkins v. State, 209 So. 2d 841, 1968 Miss. LEXIS 1480 (Miss. 1968).

The hearing and trial provided for in statutory provisions relating to delinquent children afford due process. Bryant v. Brown, 151 Miss. 398, 118 So. 184, 1928 Miss. LEXIS 315 (Miss. 1928).

106. Domestic relations action, generally.

Visitation was properly awarded to paternal grandparents because the Mississippi Grandparents’ Visitation Statute, Miss. Code Ann. §§93-16-1 to93-16-7 was not unconstitutional under United States Supreme Court law. Woodell v. Parker, 860 So. 2d 781, 2003 Miss. LEXIS 752 (Miss. 2003).

Spouse was not denied due process in marital dissolution proceeding, even though court made its decision regarding marital property division based upon spouses’ unrebutted, uncross-examined affidavits, where spouses made knowing and intelligent waiver of their respective rights to cross-examination and agreed to allow court to rely upon their affidavits in reaching decision. Sandlin v. Sandlin, 699 So. 2d 1198, 1997 Miss. LEXIS 87 (Miss.), op. withdrawn, 697 So. 2d 1191, 1997 Miss. LEXIS 331 (Miss. 1997).

Award to wife of alimony and child support where such is not sought in pleadings is error, because it deprives husband of due process, although such judgments are not void; therefore, where husband paid alimony and child support for 3 years before complaining about due process violation, decree is final and due process right has been waived. Miller v. Miller, 512 So. 2d 1286, 1987 Miss. LEXIS 2815 (Miss. 1987).

The fixing of a lien upon real and personal property belonging to a former husband who had failed to pay alimony and child support as required by a divorce decree did not deny the husband his constitutional right to due process where the lien had been imposed after a full hearing and where such lien had been necessary to ensure that the husband pay to the wife the support owing to her under the agreement embodied in the decree. Morgan v. Morgan, 397 So. 2d 894, 1981 Miss. LEXIS 2002 (Miss. 1981).

107. Probate practice and procedure.

Miss. Code Ann. §91-1-15 does require certain criteria, including an option to prove paternity of any illegitimate children within a restricted period after the putative father’s death, Miss. Code Ann. §91-1-15 (2004); these requirements place a higher burden on illegitimate children to inherit from their fathers than legitimate children. However, the State has a legitimate interest in protecting the family and the estates of the deceased by requiring adjudication of paternity within a reasonable timeframe; the purpose of § 91-1-15 in the context of intestate succession is to (1) avoid litigation of stale or fraudulent claims, (2) cause fair and just disposal of property, and (3) facilitate repose of title to real property. In re Estate of McCullough v. Yates, 32 So.3d 403, 2010 Miss. LEXIS 82 (Miss. 2010).

Appellants failed properly to adjudicate themselves as the illegitimate children of their putative father in the time prescribed by Miss. Code Ann. §91-1-15 and as such, the petition to be determined heirs of the decedent was barred by the time provision of §91-1-15; additionally, § 91-1-15 did not violate the Equal Protection Clause or the Due Process Clause of the United States Constitution. Further, appellants were not deprived of either their procedural or substantive due process rights as Mississippi had a legitimate state interest in the legislation propounded in § 91-1-15, therefore, the statute did not violate any substantive due process rights; in addition, appellants had notice of the putative father’s death and would have been afforded a hearing for adjudication of paternity, however, they failed to make such a petition within the statutory limits of § 91-1-15. In re Estate of McCullough v. Yates, 32 So.3d 403, 2010 Miss. LEXIS 82 (Miss. 2010).

The administrator of an estate is required to provide actual notice to known or reasonably ascertainable legitimate children who are potential heirs and whose claims would be barred by the running of the 90-day period from the notice of publication to creditors under the nonclaim statute, §91-1-15(3)(c). To hold otherwise would encourage administrators and executors to benefit as heirs at law by setting in motion the shortest filing period which, unbeknownst to the potential heir, has significantly shortened the time for the potential heir to meet with the statutory requirements to inherit as an heir. Smith v. Estate of King, 579 So. 2d 1250, 1991 Miss. LEXIS 250 (Miss. 1991).

108. Real property actions and proceedings.

Absent proof of a significant impact on the values of the neighbors’ property, no property interest existed for which some process was due as a matter of constitutional right; the property owner’s first request to the city to split her lot was made in 1999, and notice was given on April 6, 2001 that the matter would be considered on April 9, so constitutional process was not due, as no property deprivation existed and there was no defect in notice. Hinds v. City of Ocean Springs, 883 So. 2d 111, 2004 Miss. App. LEXIS 278 (Miss. Ct. App.), cert. denied, 883 So. 2d 1180, 2004 Miss. LEXIS 1251 (Miss. 2004).

Replevin statute (§11-37-101) violates Due Process Clause of Fourteenth Amendment because statute states that judge “shall” grant whatever is presented, leaving no discretion to judge to deny writ of replevin on presentation of complaint in proper form. Wyatt v. Cole, 710 F. Supp. 180, 1989 U.S. Dist. LEXIS 4396 (S.D. Miss. 1989), aff'd in part and rev'd in part, 928 F.2d 718, 1991 U.S. App. LEXIS 6047 (5th Cir. Miss. 1991), aff'd, 994 F.2d 1113, 1993 U.S. App. LEXIS 15466 (5th Cir. Miss. 1993).

The statutory procedure for the attachment of realty, under which attachment could be invoked without any showing of a particularized need, so long as defendant debtor was a nonresident, was violative of due process both facially and as applied to the breach of contract action at issue. M P I, Inc. v. McCullough, 463 F. Supp. 887, 1978 U.S. Dist. LEXIS 7247 (N.D. Miss. 1978).

Failure to make one, claiming title to tax forfeited land under a quitclaim deed of the record owner and by adverse possession, a party to plaintiff’s action against the state to confirm the validity of the patent from the state to such land does not constitute a denial of due process of law, for the reason that the alleged fraud claimed by defendant that the patent was issued for a grossly inadequate consideration was a defense which only the state could raise, and the confirmation decree did not purport to affect defendant’s claims of title. Comfort v. Landrum, 52 So. 2d 658, 1951 Miss. LEXIS 531 (Miss. 1951).

109. Torts.

In an action by a Mississippi plaintiff alleging various torts arising from a Missouri defendant’s repair and replacement of the plaintiff’s diesel engines, the defendant was not subject to personal jurisdiction in Mississippi, although the tort prong of Mississippi’s long arm statute (§13-3-57) applied because the engines malfunctioned in Mississippi, where, inter alia, the defendant was not qualified to do business in Mississippi, had never done business in Mississippi, owned no property in Mississippi, had no place of business in Mississippi, did not advertise or sell products in Mississippi, and was careful to protect its distribution agreement, which forbid it from providing any sales and services outside Kansas and part of Missouri; exercise of jurisdiction under the long-arm statute would not comport with the dictates of Fourteenth Amendment. Fava Custom Applicators v. Cummins Mid-America, 907 F. Supp. 224, 1995 U.S. Dist. LEXIS 18797 (N.D. Miss. 1995).

In a diversity action the district court improperly concluded that one long-distance telephone call that was alleged to constitute a tort committed “in whole or in part” in Mississippi was insufficient under the due process clause to subject the defendants to in personam jurisdiction, since the number of contacts with the forum state is not, by itself, determinative, and since what is more significant is whether the contacts suggest that the nonresident defendant purposefully availed himself of the benefits of the forum state. Brown v. Flowers Industries, Inc., 688 F.2d 328, 1982 U.S. App. LEXIS 25419 (5th Cir. Miss. 1982), cert. denied, 460 U.S. 1023, 103 S. Ct. 1275, 75 L. Ed. 2d 496, 1983 U.S. LEXIS 4089 (U.S. 1983).

Mississippi’s wrongful death statute which does not permit an illegitimate child to sue for or recover damages for the wrongful death of his father where the father has not acknowledged the child, did not deny an illegitimate son who had not been acknowledged by the deceased equal protection of the laws. Sanders v. Tillman, 245 So. 2d 198, 1971 Miss. LEXIS 1362 (Miss. 1971).

110. Criminal practice and procedure – In general.

Indictment for robbery was appropriate because defendant’s due process rights were not violated as the indictment was not required to have specified the items alleged to have been taken in the robbery. Batiste v. State, 121 So.3d 808, 2013 Miss. LEXIS 295 (Miss. 2013), cert. denied, 572 U.S. 1117, 134 S. Ct. 2287, 189 L. Ed. 2d 178, 2014 U.S. LEXIS 3424 (U.S. 2014).

Defendant’s motion for change of venue was properly denied because there was no evidence in the record to indicate that the jurors were not fair and impartial; the trial judge took appropriate steps, through voir dire, jury instruction, and sequestration, to ensure that defendant’s right to a fair trial was preserved. Welde v. State, 3 So.3d 113, 2009 Miss. LEXIS 70 (Miss. 2009).

Where no errors raised warranted granting post-conviction relief, defendant was not deprived of a fair trial due to the cumulative effect of the alleged errors. Howard v. State, 945 So. 2d 326, 2006 Miss. LEXIS 531 (Miss. 2006), cert. denied, 552 U.S. 829, 128 S. Ct. 49, 169 L. Ed. 2d 43, 2007 U.S. LEXIS 9278 (U.S. 2007).

Indictment explicitly stated that defendant was being charged with motor vehicle theft under Miss. Code Ann. §97-17-42; there was no evidence presented that defendant was surprised or that he did not not know, to his prejudice, that he was being prosecuted under §97-17-42 for motor vehicle theft; therefore, there being no prejudice or surprise, the trial judge did not abuse his discretion in permitting an on-the-record amendment of the indictment. Mixon v. State, 921 So. 2d 275, 2005 Miss. LEXIS 798 (Miss. 2005).

Appellant was properly denied post-conviction relief, because he was not denied due process when he entered his guilty plea for murder and aggravated assault, as appellant had stated at the plea hearing that he understood that he was waiving the rights he would have during a trial, and there was dialogue between appellant and the court discussing self-defense. Jackson v. State, 872 So. 2d 708, 2004 Miss. App. LEXIS 402 (Miss. Ct. App. 2004).

The defendant’s due process rights were not violated when he was tried in absentia on two traffic citations. Wheeler v. Stewart, 798 So. 2d 386, 2001 Miss. LEXIS 42 (Miss. 2001).

Due process requires State to prove each element of offense charged in indictment beyond reasonable doubt. Hennington v. State, 702 So. 2d 403, 1997 Miss. LEXIS 637 (Miss. 1997).

There is no discovery violation as to an officer’s notes, taken in the presence of witnesses and destroyed in good faith. Thus, the destruction of original handwritten notes of a defendant’s statement, which were transcribed into a typed statement, and admission of the typed statement into evidence, did not deprive the defendant of his rights to a fair and impartial trial and adequate defense as provided by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Woodward v. State, 533 So. 2d 418, 1988 Miss. LEXIS 492 (Miss. 1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1767, 104 L. Ed. 2d 202, 1989 U.S. LEXIS 2004 (U.S. 1989).

Refusal to provide indigent criminal defendant with free transcript of prior trial which ended in mistrial does not violate equal protection where defendant makes no showing that transcript would be useful or necessary to case or that alternative devices are unavailable. Ruffin v. State, 481 So. 2d 312, 1985 Miss. LEXIS 2432 (Miss. 1985).

The fact that in certain counties of the state local officials have openly refused to enforce the laws prohibiting the sale and possession of intoxicating liquor is not evidence of purposeful or intentional discrimination against a defendant charged with unlawful possession of liquor in a county where officers have made a determined and largely successful effort to enforce such laws, and for that reason such a defendant cannot assert that he has been denied equal protection and due process under the Fourteenth Amendment to the US Constitution. State v. Wood, 187 So. 2d 820, 1966 Miss. LEXIS 1356 (Miss. 1966).

Courts should jealously guard constitutional right of individuals, including suspected or actual criminals, but should not strain themselves into hypercritical condemnation of reasonable and time-tried police methods in discharge of their duties, by police officers, seeking to protect peace and safety of law-abiding people against anti-social characters. Miller v. State, 207 Miss. 156, 41 So. 2d 375, 1949 Miss. LEXIS 325 (Miss.), cert. denied, 338 U.S. 844, 70 S. Ct. 93, 94 L. Ed. 516, 1949 U.S. LEXIS 1837 (U.S. 1949).

111. – Prospective or retroactive applicability, criminal practice and procedure.

Having no retroactive effect, the decisions of the United States Supreme Court in Miranda and Escobedo could not in any way affect the proceedings incident to a jury trial for murder which ended on February 28, 1964. Yates v. Breazeale, 266 F. Supp. 360, 1967 U.S. Dist. LEXIS 8392 (N.D. Miss. 1967), aff'd, 402 F.2d 113, 1968 U.S. App. LEXIS 5663 (5th Cir. Miss. 1968).

Even if it could be said in any way that the principles announced by the United States Supreme Court in Escobedo, Miranda, or Johnson applied to defendant’s second trial for murder, reliance thereon would have been ineffective in view of the record made at the first trial where, after entering a plea of guilty, the death sentence was imposed by the jury. Yates v. Breazeale, 266 F. Supp. 360, 1967 U.S. Dist. LEXIS 8392 (N.D. Miss. 1967), aff'd, 402 F.2d 113, 1968 U.S. App. LEXIS 5663 (5th Cir. Miss. 1968).

112. – Prejudice, criminal practice and procedure.

To establish due process violation under Brady , defendant must show that: (1) evidence was suppressed; (2) suppressed evidence was favorable to defense; and (3) suppressed evidence was material either to guilt or to punishment. United States v. Dixon, 132 F.3d 192, 1997 U.S. App. LEXIS 36328 (5th Cir. Miss. 1997), cert. denied, 522 U.S. 1061, 118 S. Ct. 721, 139 L. Ed. 2d 661, 1998 U.S. LEXIS 260 (U.S. 1998), cert. denied, 523 U.S. 1096, 118 S. Ct. 1581, 140 L. Ed. 2d 796, 1998 U.S. LEXIS 2864 (U.S. 1998).

Without a showing of prejudice, defendant cannot make out claim of due process violation. Simmons v. State, 678 So. 2d 683, 1996 Miss. LEXIS 285 (Miss. 1996).

A judge who had served as the prosecutor at the time of the defendant’s indictment should have disqualified himself; the very functions involved in the performance of the positions of judge and prosecutor are contradictory and no person can be considered to be impartial while that person is also acting as a partisan. Since the judge failed to disqualify himself, the defendant was deprived of due process, which includes a fair and impartial trial. Jenkins v. State, 570 So. 2d 1191, 1990 Miss. LEXIS 701 (Miss. 1990).

Individual has right under Fourteenth Amendment due process clause to determination that probable cause to prosecute exists before proceedings are instituted against him, and state officials who undermine that right by maliciously giving false testimony to person or body charged with making probable cause determination can be held liable in § 1983 cause of action for malicious prosecution. Rhodes v. Mabus, 676 F. Supp. 755, 1987 U.S. Dist. LEXIS 12446 (S.D. Miss. 1987).

Prosecuting attorney’s display to jury of deformed hands of murder victim, pickled in jar of formaldehyde, is so prejudicial as to deprive defendant of fair trial. Hickson v. State, 472 So. 2d 379, 1985 Miss. LEXIS 2132 (Miss. 1985).

A conviction obtained through use of false evidence or perjured testimony violates the due process rights of an accused, regardless of whether the prosecution wilfully procured the perjured testimony, entitling a defendant to relief. Pearson v. State, 428 So. 2d 1361, 1983 Miss. LEXIS 2505 (Miss. 1983).

One accused of crime is entitled to another trial when his constitutional right to fair and impartial trial has been violated, regardless of fact that evidence on first trial may have shown him to be guilty beyond every reasonable doubt, and until he has had a fair and impartial trial within the meaning of Constitution he is not to be deprived of his liberty by sentence in state penitentiary. Scarbrough v. State, 204 Miss. 487, 37 So. 2d 748, 1948 Miss. LEXIS 383 (Miss. 1948).

113. – Public trial, criminal practice and procedure.

A defendant’s Sixth Amendment right to a public trial was not violated by the exclusion of the public from his rape trial during the victim’s testimony where the trial judge held an evidentiary hearing and made findings sufficient to exclude members of the public during the victim’s testimony, and where the court officials, the defendant, legal counsel and the jury were never excluded from the courtroom. Lee v. State, 529 So. 2d 181, 1988 Miss. LEXIS 366 (Miss. 1988).

Criminal processes should be open to public scrutiny, and exceptions can be made only for good cause; however, right to public trial belongs to accused, and no one else. Mississippi Publishers Corp. v. Coleman, 515 So. 2d 1163, 1987 Miss. LEXIS 2900 (Miss. 1987).

Circuit Court’s closure order in capital murder case was reasonable regulation of time, place, and manner of newspaper’s enjoyment of its First Amendment right; desire of press to inform public about important criminal proceedings can result in publication of matter that can deprive defendant of his right to fair trial; access of press to trial and pretrial processes may be qualified, and record amply supported Circuit Court’s finding that unrestricted access to trial process would result in substantial likelihood of defendant being denied fair trial; additionally, newspaper was not being denied access to pre-trial proceeding in perpetuity, because closure order expired once jury was sequestered and trial began; once that point was reached, newspaper would be granted access to complete transcript of all closed, pre-trial proceedings. Mississippi Publishers Corp. v. Coleman, 515 So. 2d 1163, 1987 Miss. LEXIS 2900 (Miss. 1987).

Closure order in criminal trial did not violate newspapers’ right of access to public records because that right is not of constitutional dimensions, instead being derived from common law and applicable statutes. Mississippi Publishers Corp. v. Coleman, 515 So. 2d 1163, 1987 Miss. LEXIS 2900 (Miss. 1987).

114. – Admissions to private persons, criminal practice and procedure.

Letters written by defendant to accomplice after he had asserted his constitutional rights to silence and to counsel were properly admitted into evidence in capital murder prosecution; accomplice did not produce letters in attempt to get favorable treatment from state given that state was not aware of their existence until after accomplice had pled guilty, there was no evidence that accomplice was acting as agent of state when letters were received, and there was no evidence that accomplice deliberately attempted to elicit incriminating statements from defendant. Brown v. State, 682 So. 2d 340, 1996 Miss. LEXIS 427 (Miss. 1996), cert. denied, 520 U.S. 1127, 117 S. Ct. 1271, 137 L. Ed. 2d 348, 1997 U.S. LEXIS 1821 (U.S. 1997).

Law enforcement officers’ use of defendant’s wife as confidential informant did not violate defendant’s right to due process, where neither wife nor officer with whom she spoke testified at trial. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

Where, pursuant to an offer by the defendant to theft victim to obtain the return of his stolen property for a payment of $200, the defendant met the victim in a place where he was under the observation of a police detective, produced the stolen articles and received the $200 which the detective took from defendant’s hand when he placed him under arrest for receiving stolen property, there was no violation of defendant’s right of privacy or right of due process, and a search warrant was unnecessary for the stolen articles were seen in defendant’s possession prior to his arrest. Bennett v. State, 211 So. 2d 520, 1968 Miss. LEXIS 1268 (Miss. 1968), cert. denied, 393 U.S. 320, 89 S. Ct. 555, 21 L. Ed. 2d 515, 1969 U.S. LEXIS 2866 (U.S. 1969).

115. – Compensation of judiciary, etc., criminal practice and procedure.

Key to whether judicial compensation plans which include alleged financial incentives to convict defendants are unconstitutional as a deprivation of due process to a defendant is the presence or absence of judicial power in the person compensated. Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 1996 Miss. LEXIS 146 (Miss. 1996).

Fee compensation plan for circuit clerks did not create unconstitutional incentive to convict defendants where circuit clerk’s role was prescribed by statute, circuit clerk made no decisions affecting the outcomes of cases, and thus circuit clerk had no judicial power. Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 1996 Miss. LEXIS 146 (Miss. 1996).

116. – Arrest, criminal practice and procedure.

A murder defendant’s confession was not the product of an illegal arrest, since conflicting statements regarding the events surrounding the killing related by the defendant to law enforcement officers provided probable cause for his arrest; moreover, the defendant’s confession was not the product of the arrest, since he gave his confession only after incriminating physical evidence was found by the officers, and the discovery of the physical evidence was the result of separate questioning of another witness and was therefore unconnected with the arrest. Thorson v. State, 653 So. 2d 876, 1994 Miss. LEXIS 600 (Miss. 1994).

There are “degrees” of detainments which fall short of an arrest which requires probable cause; detainments which would become an arrest depending on the outcome of a pending investigation are permissible, though police officers do not have unlimited authority, and may not be clothed with the authority to detain where they are not diligently investigating in such a way which will resolve the matter. Haddox v. State, 636 So. 2d 1229, 1994 Miss. LEXIS 182 (Miss. 1994).

A defendant’s arrest for driving while intoxicated was legal, and therefore the subsequent intoxilyzer test was not tainted, even though the arresting officer did not observe the defendant driving, where the defendant admitted to the arresting officer that he had been driving an automobile which was involved in an accident, and the defendant was publicly intoxicated in the presence of the officer and others in violation of §97-29-47. Goforth v. Ridgeland, 603 So. 2d 323, 1992 Miss. LEXIS 348 (Miss. 1992).

In his trial for murder of a police officer, defendant’s contention that the homicide was justifiable because he was resisting an unlawful arrest and reasonably believed himself to be in imminent danger of great bodily harm was not supported by the evidence, where the law officers had sufficient grounds to believe that fugitives for whom they had arrest warrants were located in the house in which defendant was staying and fired gas into the house only after a reasonable time had elapsed following the announcements requesting the occupants to vacate the house; failure of the occupants to exit as requested demonstrated their refusal to cooperate with the arresting officers who had identified themselves and stated their purpose, and the officers were warranted in using reasonable force and means to execute the arrest warrants. Norman v. State, 302 So. 2d 254, 1974 Miss. LEXIS 1416 (Miss. 1974), cert. denied, 421 U.S. 966, 95 S. Ct. 1956, 44 L. Ed. 2d 453, 1975 U.S. LEXIS 1588 (U.S. 1975).

Discretion vested in an officer as to whether to arrest a traffic violator or merely to issue him a summons is not in and of itself a violation of equal protection guarantees so long as such discretion is not exercised on the basis of an impermissible standard such as race, despite the fact that an officer is more likely to arrest a nonresident violator than a resident violator. Baldwin v. State, 297 So. 2d 157, 1974 Miss. LEXIS 1536 (Miss.), cert. denied, 419 U.S. 1090, 95 S. Ct. 681, 42 L. Ed. 2d 682, 1974 U.S. LEXIS 3816 (U.S. 1974).

117. – Bail, criminal practice and procedure.

Discretion vested in an officer as to whether to arrest a traffic violator or merely to issue him a summons is not in and of itself a violation of equal protection guarantees so long as such discretion is not exercised on the basis of an impermissible standard such as race, despite the fact that an officer is more likely to arrest a nonresident violator than a resident violator. Lee v. Lawson, 375 So. 2d 1019, 1979 Miss. LEXIS 2465 (Miss. 1979).

A bail system based on monetary bail alone would violate the federal equal protection and due process rights of indigent pretrial detainees. Lee v. Lawson, 375 So. 2d 1019, 1979 Miss. LEXIS 2465 (Miss. 1979).

118. – Guilty plea, criminal practice and procedure.

Because defendant was not informed of the elements of the charge as to his guilty plea, the appellate court reversed and remanded for a hearing as to whether defendant had the elements explained to him prior to pleading guilty, and whether there was a factual basis for the plea. Jones v. State, 936 So. 2d 993, 2006 Miss. App. LEXIS 619 (Miss. Ct. App. 2006).

Record indicated that the trial court, at sentencing, had some evidence that defendant committed the offense, and whether such evidence was substantial was difficult to ascertain; there was some question whether the plea following the second colloquy was knowing, intelligent and voluntary, and the supreme court could see additional facts which raised doubt as to the voluntariness of her plea. Hannah v. State, 2006 Miss. LEXIS 365 (Miss. July 20, 2006), op. withdrawn, sub. op., 943 So. 2d 20, 2006 Miss. LEXIS 578 (Miss. 2006).

Post-conviction relief was properly denied in a case where defendant pled guilty to the sale of cocaine because his guilty plea was voluntary; defendant stated in his petition to enter a plea of guilty that he was entering the plea freely, voluntarily, and of his own accord, with full understanding of all matters set forth in the indictment. Defendant also acknowledged in the petition that he could receive a sentence of zero to 60 years if convicted for the sale of cocaine as an enhanced offender, and that by pleading guilty he could receive a sentence of zero to 30 years. Morris v. State, 922 So. 2d 860, 2006 Miss. App. LEXIS 146 (Miss. Ct. App. 2006).

Record clearly demonstrated that defendant was informed that should he plead guilty to the crime, his plea of guilty would act as a waiver to a direct appeal to the Mississippi Supreme Court pursuant to Miss. Code Ann. §99-35-101. Further, it could not be said that counsel’s brief moment of confusion regarding which charges the State would pursue, rose to the level of ineffective assistance of counsel and the record clearly indicated that the trial judge explained to defendant the terms of the plea agreement; thus, defendant was not denied either due process or effective assistance of counsel. Sykes v. State, 895 So. 2d 191, 2005 Miss. App. LEXIS 150 (Miss. Ct. App. 2005).

Where a guilty plea was entered, an inmate’s request for post-conviction relief based on a denial of due process under the Fourteenth Amendment and Miss. Const. Art. 3, § 14 was denied because those issues were waived by the entry of the plea. Kelley v. State, 913 So. 2d 379, 2005 Miss. App. LEXIS 277 (Miss. Ct. App. 2005).

Trial court’s failure to advise defendant of maximum and minimum sentences when defendant pled guilty did not implicate fundamental constitutional right sufficient to except post-conviction case from procedural bar created by defendant’s failure to file petition within 3 years of guilty plea. Bevill v. State, 669 So. 2d 14, 1996 Miss. LEXIS 70 (Miss. 1996).

A trial court’s failure to inform a defendant of the mandatory minimum sentence for the crime charged did not render the defendant’s guilty plea involuntary where no misrepresentation as to the mandatory minimum sentence was made to the defendant, he did not expect to receive the mandatory minimum sentence, he did not claim that there was a misrepresentation of the sentence which he was to receive, he was fully apprised and understood the consequences of the sentence the State intended to recommend, and he did not allege that the failure to be informed of the minimum sentence induced him to enter his guilty plea. Smith v. State, 636 So. 2d 1220, 1994 Miss. LEXIS 54 (Miss. 1994).

The constitutional standard for voluntariness of a guilty plea does not mention knowledge of the mandatory minimum sentence as an essential element; instead, it merely states that the accused should understand the effects of a guilty plea. Smith v. State, 636 So. 2d 1220, 1994 Miss. LEXIS 54 (Miss. 1994).

A defendant’s claim that he blindly entered a plea of guilty because his attorney told him that his mother advised him to do so was not sufficient to render his plea involuntary. Smith v. State, 636 So. 2d 1220, 1994 Miss. LEXIS 54 (Miss. 1994).

A plea is voluntary if not induced by fear, violence, deception or improper inducements. Smith v. State, 636 So. 2d 1220, 1994 Miss. LEXIS 54 (Miss. 1994).

A defendant’s plea of guilty to 2 counts of forgery was not involuntarily entered, even though the trial court did not personally advise the defendant of the minimum and maximum penalties provided by law for the crimes of forgery, where the defendant’s attorney explained to him the maximum and minimum penalties for the charges, the defendant made no claim about the sentence he expected to receive or his belief as to the minimum sentence for the offense charged, and he did not claim that his alleged ignorance was the basis for his guilty plea. Banana v. State, 635 So. 2d 851, 1994 Miss. LEXIS 181 (Miss. 1994).

Although Rule 3.03(3)(B), Miss. Unif. Crim. R. Cir. Ct. Prac. only requires a judge to inquire and determine whether the defendant understands the maximum and minimum penalties when he or she wishes to plead guilty to the offense charged, trial judges should inform criminal defendants on the record of the minimum and maximum penalties for the charged offense in order to insure that no question ever be raised. Banana v. State, 635 So. 2d 851, 1994 Miss. LEXIS 181 (Miss. 1994).

A trial court’s failure to inform a defendant, who pled guilty to possession of cocaine with intent to distribute, that a $1,000.00 fine was the minimum penalty for the crime was harmless error where the record contained the defendant’s written waiver of indictment, his petition to enter a plea of guilty, and a 12-page transcript of the circuit judge’s interrogation of the defendant before accepting the plea. Eley v. State, 631 So. 2d 787, 1994 Miss. LEXIS 79 (Miss. 1994).

In §99-15-26 proceedings, the trial court never accepts the guilty plea and never imposes a sentence if the defendant fulfills the court-imposed conditions; where a guilty plea is accepted and a suspended sentence is imposed, the court cannot later impose a period of incarceration exceeding the original suspended sentence where the defendant fails to maintain a standard of good behavior because to do so would expose the defendant to double jeopardy. Wallace v. State, 607 So. 2d 1184, 1992 Miss. LEXIS 586 (Miss. 1992).

A defendant was entitled to an evidentiary hearing pursuant to §§99-39-13 through99-39-23 on the issue of whether his guilty plea was entered voluntarily and intelligently where the transcript of the defendant’s plea hearing did not reflect that he was advised concerning the rights of which he alleged he was ignorant; the State would be entitled to prove at the evidentiary hearing that the defendant learned of the rights in question, either from the trial judge or from some other source, prior to pleading guilty. Alexander v. State, 605 So. 2d 1170, 1992 Miss. LEXIS 573 (Miss. 1992).

A guilty plea must be made voluntarily in order to satisfy the defendant’s constitutional rights. A plea is voluntary if the defendant knows what the elements are of the charge against him or her, including an understanding of the charge and its relation to him or her, what effect the plea will have, and what the possible sentence might be because of the plea. Where a defendant is not informed of the maximum and minimum sentences he or she might receive, his or her guilty plea has not been made either voluntarily or intelligently. A complete record should be made to ensure that the defendant’s guilty plea is voluntary. While a transcript of the proceeding is essential, other offers of clear and convincing evidence which prove that the defendant entered a guilty plea voluntarily are sufficient. For example, where an evidentiary hearing has established that a defendant’s guilty plea was entered voluntarily, the fact that a record was not made at the time the plea was entered will not be fatal. Wilson v. State, 577 So. 2d 394, 1991 Miss. LEXIS 179 (Miss. 1991).

A valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial, including the right to a speedy trial, whether of constitutional or statutory origin. Anderson v. State, 577 So. 2d 390, 1991 Miss. LEXIS 180 (Miss. 1991).

A guilty plea operates to waive the defendant’s privilege against self-incrimination, the right to confront and cross-examine the prosecution’s witnesses, the right to a jury trial, and the right that the prosecution prove each element of the offense beyond a reasonable doubt. Jefferson v. State, 556 So. 2d 1016, 1989 Miss. LEXIS 485 (Miss. 1989).

Defendant was entitled to a hearing on his petition for leave to withdraw his guilty plea, on the asserted basis that he had received incorrect advice from counsel regarding the length of his sentence and the terms of his plea bargain. Tiller v. State, 440 So. 2d 1001, 1983 Miss. LEXIS 2981 (Miss. 1983).

A plea of guilty constitutes a waiver of some of the most basic rights of free Americans, those secured by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, as well as those comparable rights secured by Miss Const, Art 3, §§ 14 and 26. Tiller v. State, 440 So. 2d 1001, 1983 Miss. LEXIS 2981 (Miss. 1983).

There was no violation of due process in the acceptance of defendant’s plea of guilty where his attorney stated to the court that he had discussed the question fully with the defendant and his parents and they all concurred in the entry of a guilty plea, and the defendant, after hearing his attorney’s statement, in response to a query by the court affirmatively adopted the statement. Yates v. State, 253 Miss. 424, 175 So. 2d 617, 1965 Miss. LEXIS 998 (Miss.), cert. denied, 382 U.S. 931, 86 S. Ct. 321, 15 L. Ed. 2d 342, 1965 U.S. LEXIS 241 (U.S. 1965).

119. – Plea bargaining, criminal practice and procedure.

The State’s plea bargain with a codefendant which was conditional upon his testimony at the defendant’s trial did not violate due process where there was no indication that the codefendant’s plea reduction was made conditional upon “false or specific testimony or a specific result,” and the defendant’s attorney cross-examined the codefendant extensively on the plea bargain; the practice of the State’s withholding its end of a plea bargain until a codefendant has testified is permissible and does not result in tainted and inadmissible testimony, but rather the existence of a plea bargain is to be considered by the trier of fact in determining the credibility of the codefendant’s testimony. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

A trial court’s imposition of a sentence of 49 1/2 years imprisonment upon finding that the defendant had violated a plea agreement which provided that the charges against the defendant would be dismissed following restitution and 3 years of good behavior pursuant to §99-15-26, in spite of the defendant’s argument that the maximum sentence he should have received was 3 years since the plea bargain required him to “go straight” for only 3 years as a condition of dismissal, since the defendant had not been adjudged guilty or sentenced for the original charges until the date when the 49 1/2 year sentence was imposed, and therefore the 3-year period of conditional good behavior did not amount to a sentencing ceiling for double jeopardy purposes. Wallace v. State, 607 So. 2d 1184, 1992 Miss. LEXIS 586 (Miss. 1992).

Upon a prima facie showing of the existence of an advance plea agreement between the state and a codefendant who was state’s principal witness, whereby in exchange for testifying for the state the codefendant would receive a lenient sentence for armed robbery, a defendant, who had been convicted for the same robbery as accessory before the fact, may be entitled to post-conviction relief where the agreement had not been disclosed prior to his trial, although the defense had made a general discovery request for exculpatory material, and the existence of any such agreement had been denied by the codefendant while testifying at the defendant’s trial. Case would be remanded to circuit court for evidentiary hearing. Malone v. State, 486 So. 2d 360, 1986 Miss. LEXIS 2419 (Miss. 1986).

Criminal defendant has no constitutional right to specifically enforce plea bargain proposed by prosecutor which is withdrawn before defendant enters plea of guilty where defendant neither makes claim of nor shows detrimental reliance on proposed bargain. Allen v. State, 465 So. 2d 1088, 1985 Miss. LEXIS 1992 (Miss. 1985).

In a prosecution for arson, the trial court properly overruled defendant’s motion to suppress his statement, where defendant himself had initiated an agreement whereby he would not have to serve any time if he would give a truthful statement implicating those responsible for the fires and if he would testify against those persons in court, where defendant had insisted that his own terms be followed, where defendant had been represented by counsel at all times during the process, where defendant had been warned of the result of renigging on the agreement, and where defendant had freely and voluntarily given a statement as part of the agreement that he later chose to reject. King v. State, 451 So. 2d 765, 1984 Miss. LEXIS 1761 (Miss. 1984).

120. – Venue, criminal practice and procedure.

Transfer of venue for jury selection purposes based on racial demographics did not violate defendant’s rights to impartial jury or equal protection in prosecution for murder of black leader of civil rights organization, where transferee county had same or similar racial composition as county where defendant was indicted. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

No equal protection violation resulted from transfer of capital murder prosecution, due to pretrial publicity, to county with 51 percent non-white population, even though transferring county had minority population of 61 percent; defendant failed to show that jury did not represent a fair cross-section of the community from which it was selected. Jackson v. State, 672 So. 2d 468, 1996 Miss. LEXIS 718 (Miss. 1996).

Defendant has both federal and state constitutional right to be tried in county where offense was committed. Mississippi Publishers Corp. v. Coleman, 515 So. 2d 1163, 1987 Miss. LEXIS 2900 (Miss. 1987).

Venue of murder was sufficiently established as being in First Judicial District of Jones County, Mississippi, by evidence showing that decedent was last seen alive by accused in Jones County, near place where body was found in such county, and that he had received a blow on head breaking the skull, small fragments of which were lying on the ground. Poore v. State, 205 Miss. 528, 37 So. 2d 3, 1948 Miss. LEXIS 218 (Miss. 1948), cert. denied, 336 U.S. 922, 69 S. Ct. 656, 93 L. Ed. 1084, 1949 U.S. LEXIS 2670 (U.S. 1949).

121. – Medical testing and treatment, criminal practice and procedure.

There was no law requiring labs to be licensed or accredited prior to conducting DNA tests at the time of defendant’s trial for rape and murder, besides which a second set of tests was conducted after the subject laboratory received national certification; further, the record showed that the laboratory followed the protocols set forth under Polk v. State regarding the admissibility of DNA evidence at all times; therefore, defendant was not denied due process by the admission of said test results. Morris v. State, 887 So. 2d 804, 2004 Miss. App. LEXIS 447 (Miss. Ct. App. 2004), cert. denied, 896 So. 2d 373, 2005 Miss. LEXIS 158 (Miss. 2005).

No constitutional requirement existed that certain investigative procedures be performed at each scene of a suspicious death or that the investigation rise to a certain level of expertise; the sufficiency or insufficiency of a police investigation went to the weight of the evidence, and it was for a jury to decide what evidence to believe, and the jury believed the State’s witnesses testimony that the investigation was adequate. Cox v. State, 849 So. 2d 1257, 2003 Miss. LEXIS 337 (Miss. 2003).

Trial court did not abuse its discretion in deciding to exclude state’s serology evidence in murder prosecution instead of granting defendant a continuance and funds to conduct DNA testing; this compromise, which was proposed by defense counsel, was equitable and did not result in manifest injustice or render defendant’s trial fundamentally unfair, as DNA would not have been particularly helpful under facts of case. Coleman v. State, 697 So. 2d 777, 1997 Miss. LEXIS 255 (Miss. 1997).

Under Rule 803(6), Miss. R. Ev., a custodian of the records of the Mississippi Crime Lab may introduce laboratory reports in a narcotics possession or sale case, except where the defendant objects on the ground that his or her Sixth Amendment right to confront the person who prepared the test is being violated. Kettle v. State, 641 So. 2d 746, 1994 Miss. LEXIS 346 (Miss. 1994).

Involuntary treatment of the criminally accused with antipsychotic medication is permissible only where medically appropriate and, considering less intrusive alternatives, essential for safeguarding a compelling state interest. In re the Reinstatement of Turner, 635 So. 2d 894, 1994 Miss. LEXIS 197 (Miss. 1994).

A defendant’s constitutional right to privacy was not violated by the State’s taking the defendant to the health department for treatment of gonorrhea where the defendant was charged with capital rape of a child who was found to have gonorrhea, since the State’s interest in operating a prison and providing for the health of inmates outweighed the privacy interests of the defendant. Ormond v. State, 599 So. 2d 951, 1992 Miss. LEXIS 153 (Miss. 1992).

A smear test for gonorrhea, which was conducted after the defendant was arrested for rape, did not constitute a “critical stage” of the criminal proceedings, and therefore the defendant had no right to the presence and advice of counsel under the Sixth Amendment. Ormond v. State, 599 So. 2d 951, 1992 Miss. LEXIS 153 (Miss. 1992).

A trial court in a murder prosecution erred in allowing the prosecutor to cross-examine a witness about a certified lab report of results of the defendant’s drug screen test, where the test results were never offered into evidence during the trial and the witness had no actual knowledge of the drug screen analysis; without the testimony of a sponsoring witness with personal knowledge of the facts contained therein, the drug screen report was inadmissible hearsay, and without the opportunity to cross-examine the person responsible for the information contained in the report, the defendant’s right to confront witnesses secured by the Sixth Amendment and Article 3, § 26 of the Mississippi Constitution were violated. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

In a capital murder prosecution involving an underlying felony of rape, the defendant’s due process rights were not violated by a delay in providing the defendant with a “sexual assault kit” which collected samples of the victim’s body fluids, even though the defendant did not receive the samples until almost one year after the State’s expert conducted his testing, which allegedly resulting in the “degradation” of the samples so that the defendant was unable to perform accurate tests, where the State fully complied with a court order to preserve half the samples, and any delay in receiving the samples was due to the defendant’s failure to “simply go and get the samples” from the State’s expert and the defendant’s mistaken belief that the expert had used up all the samples. Holland v. State, 587 So. 2d 848, 1991 Miss. LEXIS 648 (Miss. 1991).

122. – Mental examination and treatment, criminal practice and procedure.

Defendant’s due process rights were not violated by a court’s refusal to grant a mental evaluation because the record indicated that he was alert and understood the nature of the proceedings and the circumstances and consequences surrounding his actions. Coker v. State, 909 So. 2d 1239, 2005 Miss. App. LEXIS 112 (Miss. Ct. App. 2005).

Due process and equal protection claims arising out of arrestee’s lack of access to civil commitment process, as result of pendency of “unresolved criminal charges,” were moot, even if arrestee could in the future become involved in criminal activity and thus again be in position of having “unresolved criminal charges pending” against him, absent any basis for predicting future arrest and ineligibility for psychiatric care. McKlemurry v. Hendrix, 971 F. Supp. 1089, 1997 U.S. Dist. LEXIS 10519 (S.D. Miss. 1997).

Statute precluding civil commitment to state psychiatric hospital of those charged with crimes did not proscribe provision of treatment, psychiatric or otherwise, for persons charged with crimes and, thus, statute did not violate equal protection; county could provide arrestee with treatment for his mental illness, but responsibility for providing treatment was county’s duty, not State’s duty. McKlemurry v. Hendrix, 971 F. Supp. 1089, 1997 U.S. Dist. LEXIS 10519 (S.D. Miss. 1997).

Due process clause did not oblige state to make its civil commitment processes available to those who had been charged with or convicted of crimes, even if arrestee would have had due process right to notice and hearing before being transferred to mental health facility. McKlemurry v. Hendrix, 971 F. Supp. 1089, 1997 U.S. Dist. LEXIS 10519 (S.D. Miss. 1997).

In the sentencing phase of a capital murder prosecution, the introduction of a state psychologist’s testimony that it was her opinion that the defendant was not psychotic or mentally ill, did not violate the defendant’s Sixth Amendment right to counsel where the defendant’s attorney requested the psychiatric examination, the defendant testified that he wanted to have a psychiatric evaluation to determine whether he knew right from wrong, and presumably the defendant had consulted with his attorney about the nature of the psychiatric examination. Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

A trial court’s denial of a capital murder defendant’s request for a private mental examination did not violate the Eighth and Fourteenth Amendments, where the defendant did not attempt to use an insanity defense, the State did not produce psychiatric testimony against him, and he did not demonstrate that sanity was to be a significant factor at trial. Ladner v. State, 584 So. 2d 743, 1991 Miss. LEXIS 434 (Miss.), cert. denied, 502 U.S. 1015, 112 S. Ct. 663, 116 L. Ed. 2d 754, 1991 U.S. LEXIS 7261 (U.S. 1991).

A defendant was not improperly denied the assistance of an independent privately employed psychiatrist in violation of his Sixth, Eighth and Fourteenth Amendment rights where the defendant requested and received a psychiatric examination and evaluation to determine his mental condition, resulting in the unanimous determination of 5 medical professionals that the defendant was sane at the time of the charged offense and was competent to aid in his defense. Lanier v. State, 533 So. 2d 473, 1988 Miss. LEXIS 523 (Miss. 1988).

Defendant was not competent to stand trial due to finding that he was unable to assist in his defense, where defendant’s intelligence quotient was 48 to 52, findings of psychologist concluded that defendant did not possess mental capacity to assist in preparation of defense, and district attorney’s motion to pass case to files contained affidavit asking that defendant be committed to mental institution; state’s only effort at rebutting evidence of incompetency was effort to prove that defendant had answered questions rationally at his arraignment. Gammage v. State, 510 So. 2d 802, 1987 Miss. LEXIS 2641 (Miss. 1987).

In hearing to determine whether or not accused is competent to stand trial, state need not be required to prove competency beyond reasonable doubt or by clear and convincing evidence, where procedures such as those set forth in Emanuel v State (1982, Miss) 412 So. 2d 1187, have been approved by United States Supreme Court (see Drope v Missouri (1975) 420 U.S. 162, 43 L. Ed. 2d 103, 95 S. Ct. 896), prosecution at federal level is required to prove competency of criminal defendant by preponderance of evidence, and due process afforded defendant by current procedures preclude need to impose greater burden on state officials. Griffin v. State, 504 So. 2d 186, 1987 Miss. LEXIS 2390 (Miss. 1987).

In a habeas corpus proceeding by one charged with murder and confined to the Mississippi State Hospital after having been found incompetent to stand trial, the petitioner was not denied due process of law where the burden of proof was placed upon him to prove that he had recovered his sanity and was no longer likely to cause harm to himself or others and where the state presented expert testimony that the petitioner was a paranoid schizophrenic, then in tenuous remission, and that he would pose a danger to himself or others if released from the hospital. Bethany v. Stubbs, 393 So. 2d 1351, 1981 Miss. LEXIS 1922 (Miss. 1981).

Neither the United States Constitution nor the Mississippi Constitution requires that the nation or state furnish an indigent defendant with the assistance of a psychiatrist to examine the defendant and advise with his court appointed counsel in the preparation of his defense. Phillips v. State, 197 So. 2d 241, 1967 Miss. LEXIS 1520 (Miss. 1967), cert. denied, 389 U.S. 1050, 88 S. Ct. 791, 19 L. Ed. 2d 844, 1968 U.S. LEXIS 2829 (U.S. 1968).

The right to a preliminary examination into the mental capacity of accused charged with murder, is a substantial, procedural right guaranteed to him by the due process clauses of the federal and state constitutions. Butler v. State, 217 Miss. 40, 63 So. 2d 779, 1953 Miss. LEXIS 410 (Miss. 1953).

123. – Identification of accused, criminal practice and procedure.

Identification of defendant was not impermissibly suggestive because the men in the photographs were all African-American males, had the same build, and possessed the same facial features in accordance with the store clerk’s description of the armed robber. The fact that defendant was the only individual wearing a coat was a minor difference and did not rise to the level of impermissible suggestion. Jones v. State, 993 So. 2d 386, 2008 Miss. App. LEXIS 232 (Miss. Ct. App.), cert. denied, 997 So. 2d 924, 2008 Miss. LEXIS 503 (Miss. 2008).

Defendant’s conviction for the sale of cocaine within 1,500 feet of a church was proper where his due process rights were not violated by the pre-court identification procedure because there was little likelihood of misidentification and the officer’s degree of attention could have been considered to have been at a high level because he did not view defendant in passing or from a great distance. Johnson v. State, 904 So. 2d 162, 2005 Miss. LEXIS 380 (Miss. 2005).

Post-conviction relief was denied in a capital murder case because the issue of whether defendant’s due process rights were violated by the use of a single set of dental molds in a murder case was procedurally barred since the issue was capable of being raised at trial or on direct appeal; even if it was not, identification of defendant by an eyewitness was distinguishable from an expert’s conclusion that defendant inflicted a particular injury based on scientific analysis. Howard v. State, 945 So. 2d 326, 2006 Miss. LEXIS 531 (Miss. 2006), cert. denied, 552 U.S. 829, 128 S. Ct. 49, 169 L. Ed. 2d 43, 2007 U.S. LEXIS 9278 (U.S. 2007).

In a shoplifting case, the trial court did not err in admitting the identification testimony or in court identifications by two witnesses, as both witnesses gave an accurate description of defendant to those who assisted in the pursuit, were certain that the man in a picture shown to them by the police was the same man who had been in the store, and both testified that they identified defendant as the shoplifter based on their familiarity with him, rather than because his was the only photograph shown to them by the police. Johnson v. State, 882 So. 2d 786, 2004 Miss. App. LEXIS 920 (Miss. Ct. App. 2004).

Appellate court overruled defendant’s argument that the on-the-scene identification violated his due process rights and prevented him from receiving a fair trial because the pre-trial identification was sufficiently reliable. The victim had the opportunity to view defendant two or three times before the armed robbery occurred, the victim testified that he was indeed paying attention before, during, and after the robbery, the record indicated that the victim gave a detailed description of defendant that was largely accurate, and the victim was, insofar as the record revealed, unequivocal in his ability to identify defendant on four separate occasions. Johnson v. State, 884 So. 2d 787, 2004 Miss. App. LEXIS 426 (Miss. Ct. App.), cert. denied, 883 So. 2d 1180, 2004 Miss. LEXIS 1302 (Miss. 2004).

State’s subpoena of victim and her mother to attend another trial of defendant on sexual battery charge, after they stated they were unsure of his identity, led to improper bolstering and suggestive identification, violating defendant’s right to due process in sexual battery prosecution. Hickson v. State, 697 So. 2d 391, 1997 Miss. LEXIS 251 (Miss. 1997).

Where a defendant is to be identified at trial, and the defendant requests that he or she be seated among other people in the courtroom, the trial judge should exercise broad discretion in determining whether the request should be granted; the factors to be considered by the trial judge include (1) any danger presented to the public by the defendant, (2) the danger of misidentification, (3) the courtroom facilities available, and (4) any other pertinent factors known to the trial judge. Scott v. State, 602 So. 2d 830, 1992 Miss. LEXIS 347 (Miss. 1992).

A trial judge did not abuse his discretion in denying a defendant’s request to be seated among the general public when an in-court identification of the defendant was made where the trial judge thoroughly conducted voir dire examination of the witness before allowing his identification, and the defendant had previously been convicted for escape from an Arkansas prison. Scott v. State, 602 So. 2d 830, 1992 Miss. LEXIS 347 (Miss. 1992).

When a reasonably intelligent eyewitness has had a good opportunity to view the features of the perpetrator of a crime, the method the police use in having the witness identify the defendant recedes in importance in inverse ratio to the intelligence of the witness and opportunity to view the perpetrator. Thus, a rape defendant’s argument that the victim’s in-court identification resulted from an impermissibly suggestive photographic identification of the defendant, or from seeing him at the preliminary hearing, was without merit where the victim was a sensible child who had ample opportunity to view the rapist in the daylight, she gave a description of the defendant to a police officer, the accuracy of which was undisputed, and she identified the defendant’s photograph without hesitation no more than 1 1/2 hours after the crime. Powell v. State, 566 So. 2d 1228, 1990 Miss. LEXIS 461 (Miss. 1990).

A robbery victim’s in-court identification of the defendant was not tainted by her extensive observation of the defendant at a pre-trial parole revocation hearing where the victim testified at the suppression hearing concerning her ample opportunity to observe the defendant at the time of the robbery. Saucier v. State, 562 So. 2d 1238, 1990 Miss. LEXIS 244 (Miss. 1990), overruled in part, White v. State, 785 So. 2d 1059, 2001 Miss. LEXIS 44 (Miss. 2001).

A pretrial voice identification of a burglary defendant was impermissibly suggestive and, therefore, denied the defendant due process of law where the witness heard only one voice after he was shown his stolen items by the police and was told by the police that the man whose voice he was hearing had those items on his person. Estes v. State, 533 So. 2d 437, 1988 Miss. LEXIS 522 (Miss. 1988).

Impromptu viewing, in jail, of robbery suspect by robbery victim is not so impermissibly suggestive as to require exclusion of victim’s subsequent in court identification of suspect where victim’s viewing of suspect in jail is performed in capacity as private individual and is not arranged by state authorities. Thompson v. State, 483 So. 2d 690, 1986 Miss. LEXIS 2397 (Miss. 1986).

Under totality of circumstances test, attorney’s in court identification of defendant as robber is substantially reliable, notwithstanding attorney’s having had opportunity to observe defendant at preliminary hearing where attorney, who was victim of robbery, had opportunity to view assailant at close range for approximately 30 seconds at time of crime, attorney’s degree of attention was intense, there was no significant impairment of attorney’s faculties, and general description of robber given to police night of crime was substantially similar to defendant’s actual physical appearance. Robinson v. State, 473 So. 2d 957, 1985 Miss. LEXIS 2164 (Miss. 1985).

In the case of a Fourteenth Amendment objection it is incumbent on the defendant to show that there is a failure of due process in permitting an in-court identification following an allegedly illegal lineup. Anderson v. State, 413 So. 2d 725, 1982 Miss. LEXIS 1936 (Miss. 1982).

In a prosecution for burglary, the trial court did not err by permitting the victim to identify defendant in court after he had identified defendant in a highly suggestive station house line-up, where the witness had had an opportunity to view defendant at the time of the crime and to notice his facial features, where the witness had displayed a strong level of certainty regarding both identifications, and where the time between the burglary and the line-up was not more than several hours; defendant’s due process rights were not violated. Stewart v. State, 377 So. 2d 1067, 1979 Miss. LEXIS 2550 (Miss. 1979).

Accused was not denied due process by the trial court’s refusal to grant a preliminary evidentiary hearing on his motion to suppress identification where there was no showing of illegality in either the photographic identification of the defendant or in the several lineup identifications. Howard v. State, 319 So. 2d 219, 1975 Miss. LEXIS 1471 (Miss. 1975), cert. denied, 425 U.S. 954, 96 S. Ct. 1733, 48 L. Ed. 2d 199, 1976 U.S. LEXIS 1500 (U.S. 1976).

124. – Discovery, criminal practice and procedure.

Although defendant argued that the State violated his due process rights by failing to test his wife’s firearm, a test fire would not have revealed that a bullet was jammed in the chamber because the bullet had been removed by defendant’s wife; therefore, defendant was not deprived of presenting a complete defense. Edwards v. State, 162 So.3d 864, 2014 Miss. App. LEXIS 711 (Miss. Ct. App. 2014).

In a capital murder and death penalty case, there were no due process violations under Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963); no DNA testing was done, most of the film had been disclosed, but to the extent that it was not, there was no reasonable probability that the outcome would have been different, and the other evidence had been disclosed to defendant. Howard v. State, 945 So. 2d 326, 2006 Miss. LEXIS 531 (Miss. 2006), cert. denied, 552 U.S. 829, 128 S. Ct. 49, 169 L. Ed. 2d 43, 2007 U.S. LEXIS 9278 (U.S. 2007).

Defendant’s rights under Brady were not violated by the trial court’s denial of defendant’s motion for disclosure of his arresting officers and the criminal histories of the codefendants because defendant failed to show that the evidence was favorable or that the prosecution even possessed the evidence; no proof existed in the record that defendant could not obtain the evidence with reasonable diligence, and defendant could not prove to a reasonable probability that the outcome of the trial would have been different had this evidence been in his possession. Flora v. State, 925 So. 2d 797, 2006 Miss. LEXIS 49 (Miss.), cert. denied, 549 U.S. 912, 127 S. Ct. 253, 166 L. Ed. 2d 197, 2006 U.S. LEXIS 6127 (U.S. 2006).

The defendant’s constitutional rights were not violated by the failure of the state to timely disclose a transcript of a recording of the drug transaction at issue where the trial court did not allow the state to use the transcript at trial, the defendant had in his possession prior to trial a copy of the tape introduced by the state, and the defendant did not request a continuance of his trial during trial or assert that the trial court erred in refusing a continuance in his motion for new trial. White v. State, 2000 Miss. App. LEXIS 41 (Miss. Ct. App. Feb. 1, 2000), rev'd, 785 So. 2d 1059, 2001 Miss. LEXIS 44 (Miss. 2001).

Government did not violate Brady in drug conspiracy case when it failed to produce defendant’s financial records and car titles, which the government seized while executing a search warrant, absent showing that such records were not available to defendant through his own diligence. United States v. Dixon, 132 F.3d 192, 1997 U.S. App. LEXIS 36328 (5th Cir. Miss. 1997), cert. denied, 522 U.S. 1061, 118 S. Ct. 721, 139 L. Ed. 2d 661, 1998 U.S. LEXIS 260 (U.S. 1998), cert. denied, 523 U.S. 1096, 118 S. Ct. 1581, 140 L. Ed. 2d 796, 1998 U.S. LEXIS 2864 (U.S. 1998).

Prosecution’s failure to provide defense with address and telephone number of witness, who had testified in earlier prosecution of same murder but allegedly could not be located to testify in current trial, did not violate defendant’s due process rights, though witness’s description of murder suspect in her statement to police did not match defendant; witness’s testimony from earlier prosecution, which also contained the nonmatching description, was read to jury during trial. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Evidence is “material,” so that its nondisclosure would violate defendant’s due process rights, if there is reasonable probability that, had the evidence been disclosed to defense, result of proceeding would have been different. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

A trial court erred in determining that a defendant was not entitled to disclosure of the identity of a confidential informant where, without the informant’s eyewitness testimony, the State’s case would have rested almost exclusively on the uncorroborated and doubtful testimony of 2 codefendants; however, the trial court’s error did not require reversal where the defendant discovered the informant’s identity at trial and subsequently confronted and cross-examined him, since confrontation and cross-examination are the very rights which require disclosure of material witnesses in the first place and the defendant fully exercised those rights at the trial. Fleming v. State, 604 So. 2d 280, 1992 Miss. LEXIS 382 (Miss. 1992).

There is no discovery violation as to an officer’s notes, taken in the presence of witnesses and destroyed in good faith. Thus, the destruction of original handwritten notes of a defendant’s statement, which were transcribed into a typed statement, and admission of the typed statement into evidence, did not deprive the defendant of his rights to a fair and impartial trial and adequate defense as provided by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Woodward v. State, 533 So. 2d 418, 1988 Miss. LEXIS 492 (Miss. 1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1767, 104 L. Ed. 2d 202, 1989 U.S. LEXIS 2004 (U.S. 1989).

A defendant is entitled to know of any advance plea agreement between the state and a codefendant who is to testify against him, and a general discovery request is adequate to impose upon the prosecution the duty of disclosure. Malone v. State, 486 So. 2d 367, 1986 Miss. LEXIS 3139 (Miss. 1986).

In a prosecution for sale of less than one ounce of marijuana, due process required making the substance available to the defendant for inspection and analysis, where the outcome of the case was substantially dependent upon the identification of the alleged substance as contraband. Love v. State, 441 So. 2d 1353, 1983 Miss. LEXIS 3051 (Miss. 1983).

125. – Jury selection, criminal practice and procedure.

Although defendant’s rights under the Equal Protection Clause were violated by the state’s striking of one male juror, a court of appeals erred by reversing armed robbery convictions under the plain error standard of review because there was no prejudice to the outcome of the trial since the jury was substantially gender-neutral. McGee v. State, 2006 Miss. LEXIS 469 (Miss. Aug. 31, 2006), op. withdrawn, sub. op., aff'd, 953 So. 2d 211, 2007 Miss. LEXIS 19 (Miss. 2007).

Defendant’s Batson challenge was properly rejected by the trial court because the fact that the State exercised peremptory strikes on two African-American veniremen did not establish a prima facie case of racial discrimination. Gilbert v. State, 934 So. 2d 330, 2006 Miss. App. LEXIS 241 (Miss. Ct. App. 2006).

Mississippi caselaw did not extend the Batson protection to religious-based peremptory strikes of jurors; the only objection offered by defendant was a Batson objection. Because defendant did not object that religious-based peremptory strikes violated Miss. Const. Art. 3, § 18 and Miss. Code Ann. §13-5-2, the trial judge did not err in accepting the reason offered by the State as a race-neutral reason not prohibited by Batson. Jackson v. State, 910 So. 2d 658, 2005 Miss. App. LEXIS 170 (Miss. Ct. App.), cert. denied, 904 So. 2d 184, 2005 Miss. LEXIS 402 (Miss. 2005).

Manner in which the trial court conducted the polling of the jury did not deny defendant equal protection of the law where the circuit court adhered to the dictates of case law in determining that in the course of post-trial hearings, juror testimony was only admissible as to objective facts bearing on extraneous influences on the deliberation process. James v. State, 912 So. 2d 982, 2004 Miss. App. LEXIS 902 (Miss. Ct. App. 2004), rev'd, 912 So. 2d 940, 2005 Miss. LEXIS 539 (Miss. 2005).

Defendant argued that a missing juror was tantamount to a silent juror and because of the absent juror, the trial court could not eliminate all doubts as to the exposure of all jurors, and the fact that one juror was not present during the polling process alone was sufficient to establish a denial of due process; however, there was ample evidence that the circuit court went out of its way to assemble the jury and to conduct the polling in strict adherence to the appellate court’s instructions, so that the absence of one juror did not invalidate an otherwise sound procedure. James v. State, 912 So. 2d 982, 2004 Miss. App. LEXIS 902 (Miss. Ct. App. 2004), rev'd, 912 So. 2d 940, 2005 Miss. LEXIS 539 (Miss. 2005).

Where the trial court required each side to explain the reasons for peremptory strikes, disallowed some strikes by both parties, but for several of the strikes denied to the defense or permitted to the State, there was no adequate fact-finding, the case would have been remanded for further fact-finding had it not been reversed on other grounds. Robinson v. State, 858 So. 2d 887, 2003 Miss. App. LEXIS 903 (Miss. Ct. App. 2003).

Where all of defendant’s peremptory challenges were made against Caucasian jurors, and out of the seven total Caucasians on the jury venire, he challenged four, the trial court erred by summarily overruling the State’s Batson objection without going forward with the analysis of whether the Batson objection was warranted. State v. Rogers, 847 So. 2d 858, 2003 Miss. LEXIS 285 (Miss. 2003).

The defendant failed to make out a prima facie case of gender discrimination in the state’s exercise of peremptory challenges where (1) half of the venire was composed of women, (2) the state exercised 10 or 12 peremptory challenges against women, but tendered three women, (3) nothing about the voir dire, nothing about the prosecutors’ conduct, nothing about the habitual policies of these prosecutors or any stated policies of the district attorney’s office, and nothing about the nature of the case supported an inference of discriminatory intent, and (4) a review of the record established that the state had valid reasons to reject several of the jurors. Ryals v. State, 794 So. 2d 161, 2001 Miss. LEXIS 152 (Miss. 2001).

Where the trial court failed to provide an on-the-record factual determination of the reasons given by the state for the exercise of its peremptory challenges, and also failed to ensure that the reasons offered by the state for the exercise of its peremptory challenges were not a pretext for discrimination, the defendant suffered a violation of his right to equal protection and, therefore, he was entitled to reversal of his conviction and a new trial. Bogan v. State, 811 So. 2d 286, 2001 Miss. App. LEXIS 23 (Miss. Ct. App. 2001).

Defendant was not entitled to habeas relief based on alleged denial of Sixth and Fourteenth Amendment rights to a fair and impartial jury where juror, who served as foreman, had daughter who was employed by city police department in unknown capacity. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

Prerequisite of presentation of claim of denial of constitutional rights due to denial of challenge for cause was showing that defendant exhausted all of his peremptory challenges and that incompetent juror was forced to sit on jury by trial court’s erroneous ruling. McGowan v. State, 706 So. 2d 231, 1997 Miss. LEXIS 717 (Miss. 1997).

Clearly erroneous standard of review was appropriate in determining whether trial court erred in holding that defendant failed to make prima facie showing of gender discrimination in exercise of peremptory challenges against female jurors. Simon v. State, 679 So. 2d 617 (Miss. 1996).

Defendant failed to establish prima facie case of gender discrimination arising from prosecution’s exercise of seven peremptory challenges against females where percentage of female venire members struck was nearly equivalent to percentage of females in venire upon which prosecution passed with three peremptory strikes unused; ultimate composition of jury, with eight females, produced percentage of women higher than percentage of females on original venire. Simon v. State, 679 So. 2d 617 (Miss. 1996).

Dismissal of doctor and 2 attorneys from jury did not deny defendant his rights to due process and to fair cross section of community; doctor was an emergency room physician who was working night shift, and attorneys were excused because they operated small businesses that could not afford to be closed. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Both circuit clerks and sheriffs qualify as “interested officials” for purpose of rule that participation of interested officials in juror selection violates due process, since both are officers of the court who have duties in the impaneling of juries. Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 1996 Miss. LEXIS 146 (Miss. 1996).

Although record in capital murder case indicated that veniremember who was excused for cause stated during voir dire that he could impose death penalty if circumstances warranted, and that another venire-member with similar name, who was not excused, indicated he could not impose death penalty under any circumstances, trial court did not err, where defense counsel’s failure to differentiate between the 2 veniremembers during questioning and parties’ subsequent arguments led to conclusion that court reporter mistakenly transposed veniremembers’ names. Russell v. State, 670 So. 2d 816, 1995 Miss. LEXIS 617 (Miss. 1995), cert. denied, 519 U.S. 982, 117 S. Ct. 436, 136 L. Ed. 2d 333, 1996 U.S. LEXIS 6884 (U.S. 1996), cert. dismissed, 520 U.S. 1249, 117 S. Ct. 2406, 137 L. Ed. 2d 1064, 1997 U.S. LEXIS 3537 (U.S. 1997).

Even if veniremember who gave conflicting statements as to whether he could impose death penalty was erroneously stricken for cause in capital murder case, defendant’s right to impartial jury was not violated, where, because veniremember was panel member number 35, defense would have had to use all 12 peremptory challenges and prosecution would have had to use at least 11 of its peremptory challenges to enable veniremember to serve on jury, and defendant did not claim that any of the 12 jurors who did serve were not impartial. Russell v. State, 670 So. 2d 816, 1995 Miss. LEXIS 617 (Miss. 1995), cert. denied, 519 U.S. 982, 117 S. Ct. 436, 136 L. Ed. 2d 333, 1996 U.S. LEXIS 6884 (U.S. 1996), cert. dismissed, 520 U.S. 1249, 117 S. Ct. 2406, 137 L. Ed. 2d 1064, 1997 U.S. LEXIS 3537 (U.S. 1997).

Even if trial court erred in capital murder case by failing to strike for cause prospective juror who allegedly stated he would always vote for death penalty, defendant’s right to impartial jury was not violated, where prospective juror did not serve on defendant’s jury panel, and defendant was not forced to use peremptory strike to keep him off panel. Russell v. State, 670 So. 2d 816, 1995 Miss. LEXIS 617 (Miss. 1995), cert. denied, 519 U.S. 982, 117 S. Ct. 436, 136 L. Ed. 2d 333, 1996 U.S. LEXIS 6884 (U.S. 1996), cert. dismissed, 520 U.S. 1249, 117 S. Ct. 2406, 137 L. Ed. 2d 1064, 1997 U.S. LEXIS 3537 (U.S. 1997).

Defendant’s failure to make contemporaneous objection left unpreserved her claim that trial court violated her rights to due process by moving venireman to end of list of potential jurors. Ballenger v. State, 667 So. 2d 1242, 1995 Miss. LEXIS 451 (Miss. 1995), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4177 (U.S. 1996).

A trial judge in a capital murder prosecution did not abuse his discretion by excusing a potential juror who initially indicated that she could not impose the death penalty, even though she subsequently indicated that there were some circumstances under which she could impose the death penalty, where she failed to clearly indicate that she was willing to set aside her own beliefs and follow the instructions and law as to the death penalty. Davis v. State, 660 So. 2d 1228, 1995 Miss. LEXIS 287 (Miss. 1995), cert. denied, 517 U.S. 1192, 116 S. Ct. 1684, 134 L. Ed. 2d 785, 1996 U.S. LEXIS 3101 (U.S. 1996).

A juror in a criminal prosecution should have been struck for cause where his sister was employed as an assistant district attorney. Hartfield v. Hartford Life & Accident Ins. Co., 656 So. 2d 104, 1995 Miss. LEXIS 297 (Miss. 1995).

A prosecutor’s request of jurors during individual voir dire to give the particular circumstances that each would require in order to return a death sentence were not improperly designed to extract a promise from the jurors that they would certainly vote in favor of the death penalty given a specific set of circumstances, and therefore did not violate the defendant’s constitutional rights. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

The State was not required to give “gender-neutral” reasons for peremptorily challenging female jurors; the Equal Protection Clause does not extend to gender, and Batson should not be extended to challenges of gender-based discrimination. Simon v. State, 633 So. 2d 407, 1993 Miss. LEXIS 431 (Miss. 1993), vacated, 513 U.S. 956, 115 S. Ct. 413, 130 L. Ed. 2d 329, 1994 U.S. LEXIS 7532 (U.S. 1994).

A murder defendant was not denied a fair trial on the ground that the trial court refused to accept his challenges for cause to 3 potential jurors where the defendant used peremptory challenges to remove those jurors, since the loss of a peremptory challenge does not constitute a violation of the constitutional right to an impartial jury; so long as the jury that sits is impartial, the fact that the defendant had to use peremptory challenges to achieve that result does not mean that the defendant was denied his or her constitutional rights. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

A prerequisite to presentation of a claim of a denial of constitutional rights due to denial of a challenge for cause is a showing that the defendant had exhausted all of his or her peremptory challenges and that the incompetent juror was forced to sit on the jury due to the trial court’s erroneous ruling. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

A capital murder defendant was not denied a fair trial because he was forced to use his last peremptory challenge to remove a juror who was allegedly potentially biased since the loss of a peremptory challenge does not constitute a violation of the constitutional right to an impartial jury so long as the jury that sits is impartial, and the defendant did not show that an incompetent juror was forced to sit on the jury. Mettetal v. State, 615 So. 2d 600, 1993 Miss. LEXIS 96 (Miss. 1993).

Personal opposition to capital punishment is not a constitutional impediment to juror service so long as the juror is able to set aside his or her personal belief and fairly consider all sentencing options under the law; it was therefore error for a trial court to refuse defense counsel an opportunity to further voir dire potential jurors who had expressed reluctance to vote for the death penalty. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

State court’s erroneous refusal to remove juror favoring death penalty, which refusal forces defense to use peremptory challenge, does not violate defendant’s right to impartial jury or to due process. Ross v. Oklahoma, 487 U.S. 81, 108 S. Ct. 2273, 101 L. Ed. 2d 80, 1988 U.S. LEXIS 2871 (U.S. 1988).

Removal before guilt phase of capital trial of prospective jurors whose opposition to death penalty would impair or prevent performance of their duties at sentencing phase is not unconstitutional. Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L. Ed. 2d 137, 1986 U.S. LEXIS 153 (U.S. 1986).

A trial court did not deny defendant’s constitutional right to a fair and impartial jury, where it eliminated only those prospective jurors who indicated that their conscientious scruples against the death penalty would prevent them from properly considering the issue of defendant’s guilt in accordance with their oath. Jones v. Thigpen, 555 F. Supp. 870, 1983 U.S. Dist. LEXIS 19724 (S.D. Miss. 1983), aff'd in part and rev'd in part, 741 F.2d 805, 1984 U.S. App. LEXIS 18556 (5th Cir. Miss. 1984).

Prosecutors are not limited in use of any legitimate informational source available as to jurors, nor does prosecutor have to question juror in open court about such information before using it as racially neutral ground to make peremptory strike, as long as source of information and practice itself are not racially discriminatory. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Failure of defense counsel to timely object to state’s peremptory challenges bars later attempts to advance that claim on appeal; objection is timely only where made prior to impaneling of jury. Thomas v. State, 517 So. 2d 1285, 1987 Miss. LEXIS 2386, 1987 Miss. LEXIS 2985 (Miss. 1987).

Defendant’s Sixth and Fourteenth Amendment rights were not violated in a capital murder case, where the trial court excused a juror for cause who had unequivocally stated that he was opposed to the death penalty to the extent that it would prevent him from making an impartial decision on defendant’s guilt, that he would not even consider the court’s instructions, and that under no circumstances would he vote for the death penalty. Joyce v. State, 327 So. 2d 255, 1976 Miss. LEXIS 1768 (Miss. 1976).

Statute did not violate due process rights of appellant by excluding from jury service persons in his age group, 18 to 20 years; amendment of US Constitution by Twenty-Sixth Amendment did not qualify persons under 21 years of age as jurors under state laws. Joyce v. State, 327 So. 2d 255, 1976 Miss. LEXIS 1768 (Miss. 1976).

A defendant, found guilty of murder and for whom the jury recommended a sentence of life imprisonment was not deprived of due process and equal protection of the law because of the exclusion of a prospective juror who had scruples against the death penalty, and his exclusion did not result in a panel biased with respect to defendant’s guilt. Joseph v. State, 218 So. 2d 734, 1969 Miss. LEXIS 1617 (Miss. 1969), overruled, Pittman v. State, 297 So. 2d 888, 1974 Miss. LEXIS 1544 (Miss. 1974).

The exclusion of women from jury service does not deny equal protection and due process to a woman indicted and tried for murder. Pendergraft v. State, 191 So. 2d 830, 1966 Miss. LEXIS 1224 (Miss. 1966).

Where, on motion of the prosecution, the trial judge declared a mistrial because after the jury had been empaneled one juror expressed an opinion as to the sanity of the defendant, the mistrial furnished no basis for plea of former jeopardy. Smith v. State, 198 So. 2d 220, 1967 Miss. LEXIS 1249 (Miss. 1967).

A woman indicted for murder is not denied the equal protection of the law on the ground that members of her sex are completely excluded from jury service. Cobb v. Greenville, 187 So. 2d 861, 1966 Miss. LEXIS 1364 (Miss. 1966).

126. – Jury practice, criminal practice and procedure.

In a capital murder case, the unsworn statements of one juror showing that the juror was predisposed to voting for the death penalty without weighing mitigating factors was countered with an affidavit from the juror stating that the juror had considered all of the evidence in the case, and the unsworn statement of the second juror did not state that the juror was silent during voir dire, that she had lied about her views on mitigating evidence, that the juror was unwilling to consider mitigating factors, or that she had a predisposition toward the death penalty that she did not disclose during voir dire; thus, the inmate’s claim that the two jurors were predisposed toward voting for the death penalty was unsupported and the inmate was not deprived of his right to a fair and impartial jury under the Sixth and Fourteenth Amendments or Miss. Const. art. 3, §§ 14 and 26. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

Trial judge who questions jurors in privacy of chambers in order to encourage them to speak openly regarding contact by someone attempting to influence them in favor of criminal defendant, and to prevent jurors who have not been contacted from being tainted by knowledge of contact violates right of defendant or defendant’s counsel to be present at examination. Strickland v. State, 477 So. 2d 1347, 1985 Miss. LEXIS 2263 (Miss. 1985).

Where evidence, based on statement of juror, disclosed that jury after twenty-three hours of deliberations stood 11 to 1 for verdict of guilty of murder when bailiff stated to jury that judge told him he had until next convening of court to wait until they reached verdict and that as far as he was concerned they could stay there until they rotted, and that shortly thereafter the jury returned a verdict of guilty, such conduct constituted a coercive influence on the jury prejudicial to defendant, it being immaterial whether the judge actually made such statement. McCoy v. State, 207 Miss. 272, 42 So. 2d 195, 1949 Miss. LEXIS 336 (Miss. 1949).

127. – Conduct of trial, criminal practice and procedure.

Defendant was entitled to a new trial because counsel provided ineffective assistance by failing to so move as (1) there was no strategic reason for failing to so move, and (2) it was reasonably probable the motion would have been granted, since defendant had a right to be where defendant was, the victim was an immediate aggressor by forcibly entering a dwelling, and defendant engaged in no unlawful activity, so defendant had no duty to retreat. Woods v. State, 242 So.3d 47, 2018 Miss. LEXIS 85 (Miss. 2018).

Defendant was properly denied a new trial based on the State’s alleged misrepresentations about counsel being present at the lineup because it was not a use of false evidence in violation of the 14th Amendment, as the police chief testified that he could have been mistaken but he did not lie when he said that counsel was present at the lineup. Howell v. State, 163 So.3d 240, 2014 Miss. LEXIS 496 (Miss. 2014).

Defendant’s due process rights were violated where the State destroyed a video of a traffic stop and the moments before it while under a court order to preserve it, which impaired the defense since the video would have clarified material disputed facts as to whether defendant admitted to drinking alcohol, whether he slurred his words, whether his coordination was impaired, how he was driving immediately prior to the stop, the interaction between the two men and the portable breath test results. Freeman v. State, 121 So.3d 888, 2013 Miss. LEXIS 312 (Miss. 2013).

In a manslaughter case, defendant’s right to a fundamentally fair trial was denied because the trial court refused to allow the admission of the testimony of two police officers under Miss. R. Evid. 404(a)(2) where there was sufficient testimony to create a jury issue as to whether the victim was the aggressor in the incident that led to his death; the officers’ testimony was relevant to show prior incidents so that the jury could have placed itself in defendant’s shoes at the time of the incident. Miller v. State, 956 So. 2d 221, 2007 Miss. LEXIS 278 (Miss. 2007).

Defendant voluntarily waived his right to testify after being informed that his prior embezzlement conviction could be used against him for impeachment purposes; while defendant’s enthusiasm for testifying might have suffered a chilling effect upon his being advised by the trial judge that his embezzlement conviction could be used against him for impeachment purposes, that was the reality of the adversarial system. Additionally, as the impeaching crime of embezzlement was a Miss. R. Evid. 609(a)(2) crime involving dishonesty or false statements, no balancing analysis was required for the admission of that prior conviction; thus, the trial court did not err in finding that the prior conviction would be admissible if defendant decided to testify. Jackson v. State, 910 So. 2d 658, 2005 Miss. App. LEXIS 170 (Miss. Ct. App.), cert. denied, 904 So. 2d 184, 2005 Miss. LEXIS 402 (Miss. 2005).

Even if the record clearly showed that a petitioner was in shackles in front of the jury in the sentencing phase of a capital murder trial, there was no merit in the petitioner’s arguments that his Sixth and Fourteenth Amendment rights were violated; the petitioner had already been convicted twice and had already received a death sentence for the murder of one victim, and he had a history of escaping from authority as a juvenile. Wilcher v. State, 863 So. 2d 719, 2003 Miss. LEXIS 526 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

Petition for post-conviction relief was properly denied because inmate’s due process rights were not violated when a special prosecutor was appointed in a murder case; the record showed that the prosecution of the inmate remained in the control of a district attorney, and the special prosecutor did not control crucial prosecutorial decisions. Hollingsworth v. State, 852 So. 2d 612, 2003 Miss. App. LEXIS 925 (Miss. Ct. App.), cert. denied, 852 So. 2d 577, 2003 Miss. App. LEXIS 867 (Miss. Ct. App. 2003).

Eyewitness testimony of multiple witnesses was sufficient evidence that homicide committed by defendant, an armed late arriver to a nightclub fight, was not self-defense, and defendant was not prejudiced by the failure of the original indictment to state a specific overt act by which the homicide was committed, particularly where the indictment was amended to read “by shooting with a pistol.” Jones v. State, 856 So. 2d 285, 2003 Miss. LEXIS 363 (Miss. 2003).

In a capital murder case where defendant was indicted separately for each of four murders, the State’s pattern of continuously referring to the killing of the other three victims throughout the entire guilt phase denied defendant his fundamental right to a fair trial. Flowers v. State, 842 So. 2d 531, 2003 Miss. LEXIS 149 (Miss. 2003).

Cumulative effect of the State’s repeated instances of arguing facts not in evidence was to deny defendant the right to a fair trial. Flowers v. State, 842 So. 2d 531, 2003 Miss. LEXIS 149 (Miss. 2003).

In a prosecution for a single murder, the defendant was denied a fair trial where the prosecution engaged in a pattern of repeatedly and unnecessarily citing to the killing of three victims throughout the guilt phase proceedings. Flowers v. State, 2000 Miss. LEXIS 116 (Miss. May 11, 2000).

In a prosecution for capital murder and armed robbery arising from the robbery of two adjacent businesses, the testimony of one business owner, who was also shot, regarding the events was properly admitted into evidence as the assault and robbery of that business owner was so intertwined with the murder of the other business owner that it could be perceived as a single occurrence. Ellis v. State, 2000 Miss. App. LEXIS 385 (Miss. Ct. App. Aug. 15, 2000), rev'd, 790 So. 2d 813, 2001 Miss. LEXIS 114 (Miss. 2001).

In a prosecution for murder, there was no error in the introduction into evidence of photographs of the murder victim where (1) there was nothing in the record to indicate that the admission of the photographs was simply a ploy on the part of the prosecutor to arouse the passion and prejudice of the jury, (2) the photographs established that the victim was dead as a result of a criminal act, and the extent, position, and nature of the wounds the victim sustained, and (3) the photographs assisted the jury in visualizing the crime scene and corroborated the testimony of the investigators of the crime scene. Humphrey v. State, 759 So. 2d 368, 2000 Miss. LEXIS 101 (Miss. 2000).

In a prosecution for murder, an exclamation from the audience by the victim’s mother that the defendant “cold blooded killed my child” did not prejudice the defendant’s right to a fair trial where the victim’s mother was immediately escorted from the courtroom after her outburst, and the judge then properly admonished the jury to disregard the incident and questioned the jurors to determine whether they could disregard the comments. Bell v. State, 631 So. 2d 817, 1994 Miss. LEXIS 74 (Miss. 1994).

A defendant’s right to a fair trial by an impartial jury was not prejudiced by the fact that the defendant was brought shackled into the hallway outside the courtroom while some of the jurors were in the hallway, where the defendant was not brought into the courtroom until the shackles were removed, the incident was a technical violation which was not intentional but was coincidental to the jury being out in the hallway, and no evidence was presented to show that the defendant was seen shackled by some of the jury members. Wiley v. State, 582 So. 2d 1008, 1991 Miss. LEXIS 364 (Miss. 1991).

Defendant was not denied due process rights when he was brought into courtroom before jury in shackles, although defense counsel had been granted motion in limine prohibiting jury from viewing defendant in shackles, where, at worst, defendant was 10 feet inside courtroom for few minutes, there was no evidence this incident occurred intentionally, handcuffs were removed immediately after being noticed, and it did not appear incident deprived defendant of his right to fair trial. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Defendant was denied right to fair trial where counsel denounced him as liar in open court before trier of fact, this being an evil of such magnitude that no showing of prejudice was necessary for reversal of conviction. Ferguson v. State, 507 So. 2d 94, 1987 Miss. LEXIS 2502 (Miss. 1987).

Refusal of trial court to grant recess requested by defendant, in case in which jury retires to deliberate at 9:03 p.m. and returns with guilty verdict at 11:03 p.m., is permissible where there are no expressions or indications of discomfort or distress on part of counsel, jury or others involved in proceeding. Fairley v. State, 483 So. 2d 345, 1986 Miss. LEXIS 2398 (Miss. 1986).

One on trial for life or liberty may be handcuffed or otherwise shackled in presence of jury only by reason of clear and present danger to order or security. Hickson v. State, 472 So. 2d 379, 1985 Miss. LEXIS 2132 (Miss. 1985).

It was basically unfair for the trial court in a prosecution for murder to force defendant to offer his testimony and that of his witnesses to the jury after a fatiguing day in court and at a time when both counsel and jury were exhausted; moreover, due process of law necessitated a forum for defendant to present his case within reasonable hours and under reasonable circumstances. Parker v. State, 454 So. 2d 910, 1984 Miss. LEXIS 1806 (Miss. 1984).

The due process clauses of the federal and state constitutions required that a trial be conducted according to the established criminal procedures, with an adequate opportunity to be heard in defense. Butler v. State, 217 Miss. 40, 63 So. 2d 779, 1953 Miss. LEXIS 410 (Miss. 1953).

Refusal to grant continuance on third trial of prosecution for rape, which trial took place some two weeks after employment of new counsel for defendant, did not constitute a denial of defendant’s right to effective representation by counsel contrary to the Fourteenth Amendment of the United States Constitution, where more than two years had elapsed since the commission of the offense, such counsel had advantage of voluminous and comprehensive briefs, records and opinions of the court in two previous trials and the assistance of two investigators to help them in preparing for the trial. McGee v. State, 40 So. 2d 160 (Miss.), cert. denied, 338 U.S. 805, 70 S. Ct. 77, 94 L. Ed. 487, 1949 U.S. LEXIS 1886 (U.S. 1949).

“Due process” in criminal prosecutions requires merely that procedure be in accord with that applicable to all civil and criminal trials, recognized in all common-law jurisdictions, and does not result in arbitrarily depriving defendants of any constitutional or common-law right. Brown v. State, 173 Miss. 542, 158 So. 339, 161 So. 465, 1935 Miss. LEXIS 190 (Miss. 1935).

128. – Judicial conduct, criminal practice and procedure.

Trial judge’s verdict of guilt was reversed where his investigation into the contemptuous allegations, his interrogation of an investigator, and his personal knowledge and involvement gave him substantial personal involvement in the prosecution and would have led a reasonable person to have reasonable doubt about the judge’s impartiality. Terrell v. State, 166 So.3d 549, 2015 Miss. App. LEXIS 301 (Miss. Ct. App. 2015).

A trial judge’s remarks pertaining to religion were not sufficient to constitute a violation of the First Amendment’s Establishment Clause where the judge told a venireperson during voir dire that the instructions on the law which would be given to the jury would not “conflict in any way with [H]is law at all,” and he requested a moment of silence in honor of the troops serving in the Persian Gulf prior to the beginning of proceedings one morning. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

129. – Confrontation of witnesses, criminal practice and procedure.

Defendant’s conviction for depraved heart murder was proper where the trial court did not err when it overruled defendant’s objection to the testimony of a witness regarding statistical data regarding DNA evidence because defendant objected on the ground that the witness was not a statistician and thus not qualified to testify about statistical results but the witness did not make the statistical calculations about which he was testifying; further, there was no error and defendant was not denied his rights to confront and cross-examine witnesses against him. Edwards v. State, 856 So. 2d 587, 2003 Miss. App. LEXIS 557 (Miss. Ct. App.), cert. dismissed, 860 So. 2d 1223, 2003 Miss. LEXIS 812 (Miss. 2003), cert. denied, 571 U.S. 841, 134 S. Ct. 92, 187 L. Ed. 2d 69, 2013 U.S. LEXIS 6108 (U.S. 2013).

In a prosecution for sale of a controlled substance, the defendant was not deprived of his constitutional right to confront witnesses on the ground that the State failed to provide information as to the whereabouts of an informant where the defendant did not allege any bad faith by the State, and the State provided evidence as to its good faith attempt to locate the informant. Campbell v. Campbell, 618 So. 2d 116, 1993 Miss. LEXIS 200 (Miss. 1993).

In a prosecution for felonious child abuse arising from the defendant’s beating of his 9-year-old son, the defendant’s constitutional right to confront his accuser was not violated, in spite of the defendant’s argument that his accuser was his wife and that he was not allowed to “confront” her, where the defendant’s wife was not a witness at the trial, the defendant was allowed to fully cross-examine all State witnesses against him, and the record did not indicate that the defendant’s wife ever accused him of felonious child abuse. Ahmad v. State, 603 So. 2d 843, 1992 Miss. LEXIS 321 (Miss. 1992).

Although a defendant was entitled to a preliminary hearing, he was not prejudiced by the lack of one where he was afforded ample opportunity through his pretrial hearings to confront the State’s witnesses. Rogers v. State, 599 So. 2d 930, 1992 Miss. LEXIS 123 (Miss.), overruled in part, Mayfield v. State, 612 So. 2d 1120, 1992 Miss. LEXIS 861 (Miss. 1992).

A judge’s refusal to permit a criminal defendant’s children to testify did not violate federal and state constitutional provisions entitling a defendant to access to witnesses where the judge provided the defendant with an opportunity show a “colorable need” for calling the children to testify and the defendant failed to show such a need. Edwards v. State, 594 So. 2d 587, 1992 Miss. LEXIS 47 (Miss. 1992).

A defendant’s constitutional right to confront witnesses was violated by the prosecution’s attempted cross-examination of a witness who had been called as an adverse witness by the defendant, where the witness pleaded her privilege against self-incrimination on direct examination, and then, on cross-examination, the prosecuting attorney purportedly read from the witness’ pretrial statement, which implied the defendant’s guilt, before each of the witness’ claim of privilege against self-incrimination. However, the error was harmless beyond a reasonable doubt where the evidence against the defendant was overwhelming. Hansen v. State, 592 So. 2d 114, 1991 Miss. LEXIS 876 (Miss. 1991), cert. denied, 504 U.S. 921, 112 S. Ct. 1970, 118 L. Ed. 2d 570, 1992 U.S. LEXIS 2882 (U.S. 1992).

A trial judge did not abuse his discretion in declining to grant a continuance due to the defendant’s absence from trial where the defendant had executed a recognizance bond, which required his presence before the court, so that he was no longer at liberty but was in the custody of the law; since the defendant’s absence from the court was voluntary, he waived his right to be present at trial. Samuels v. State, 567 So. 2d 843, 1990 Miss. LEXIS 566 (Miss. 1990), overruled, Villaverde v. State, 673 So. 2d 745, 1996 Miss. LEXIS 200 (Miss. 1996).

A defendant’s constitutional right to compulsory process for obtaining witnesses in his favor was violated where the trial court quashed the defendant’s subpoenas to a district attorney and 2 deputy sheriffs who allegedly had first-hand knowledge of incidents that had happened at the county jail which would have been relevant to the defense of duress, since without their testimony the defendant had no defense to the charge of conspiracy to commit a jail escape. Hentz v. State, 542 So. 2d 914, 1989 Miss. LEXIS 223 (Miss. 1989).

The defendant was denied the right to a full and complete cross-examination when the witness, whether rightfully or not, successfully invoked the privilege against self-incrimination, and the defendant’s motion for the court to instruct the jury to disregard the witness’ testimony should have been sustained, and failure of the court to do so was error. Frackman v. Deposit Guaranty Nat'l Bank, 296 So. 2d 695, 1974 Miss. LEXIS 1532 (Miss. 1974).

In a forgery prosecution, dismissal of the state’s witness after he had given the only evidence introduced in the case which identified the defendant as the person who cashed the check, and had indicated that the defendant had cashed bad checks on other occasions, without giving the defendant an opportunity to cross-examine the witness, was prejudicial error, since it denied the defendant his right to be confronted by witnesses against him, and deprived him of due process of law. Crapps v. State, 221 So. 2d 722, 1969 Miss. LEXIS 1505 (Miss. 1969).

130. – Hearsay evidence, criminal practice and procedure.

Police officer’s testimony referencing the store manager’s comments that defendant was shoplifting was not hearsay and was properly admitted where defendant was not charged with shoplifting and the testimony complained of was not used to prove the truth of whether or not defendant shoplifted; defendant was charged with feloniously eluding a law enforcement in a motor vehicle and the purpose of the testimony was to show why the officer followed defendant into the parking lot where she fled from him. Watson v. State, 8 So.3d 901, 2008 Miss. App. LEXIS 637 (Miss. Ct. App. 2008), cert. denied, 12 So.3d 531, 2009 Miss. LEXIS 217 (Miss. 2009).

Testimony admitted under former testimony exception to hearsay rule does not violate Confrontation Clauses of Federal and State Constitutions. Russell v. State, 670 So. 2d 816, 1995 Miss. LEXIS 617 (Miss. 1995), cert. denied, 519 U.S. 982, 117 S. Ct. 436, 136 L. Ed. 2d 333, 1996 U.S. LEXIS 6884 (U.S. 1996), cert. dismissed, 520 U.S. 1249, 117 S. Ct. 2406, 137 L. Ed. 2d 1064, 1997 U.S. LEXIS 3537 (U.S. 1997).

131. – Juvenile witnesses, criminal practice and procedure.

For statement made by child of tender years describing act of sexual contact performed with or on child by another to be admissible, reliability of statement must be judged independently of any corroborating evidence. Hughes v. State, 665 So. 2d 852, 1995 Miss. LEXIS 564 (Miss. 1995).

132. – Expert witnesses, criminal practice and procedure.

Post-conviction relief was denied in a capital murder case because the issue of whether defendant was denied a fair trial based on alleged falsehoods and misrepresentations by an expert was procedurally barred since it was capable of being raised on direct appeal. Howard v. State, 945 So. 2d 326, 2006 Miss. LEXIS 531 (Miss. 2006), cert. denied, 552 U.S. 829, 128 S. Ct. 49, 169 L. Ed. 2d 43, 2007 U.S. LEXIS 9278 (U.S. 2007).

Experts who rendered diagnosis of “no mental disorder” for low intelligence quotient for capital murder defendant, after being appointed to perform mental examination of him to determine his competency to stand trial, afforded defendant constitutionally adequate evaluation and furnished constitutionally adequate report. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Brady violation did not result from failure of defense counsel to learn that capital murder defendant had intelligence quotient (IQ) of 59 from experts at state hospital who were requested by defense to perform psychological examination of defendant, where defense counsel requested and received mental examination to determine defendant’s competency to stand trial, not to determine his IQ, and defense counsel, trial judge and jury were well aware that defendant had only third-grade education and was unable to read and write. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

In a prosecution for capital murder committed during the commission of a rape, the trial court’s failure to provide funds to the defendant to retain an independent pathologist constituted reversible error where the opinion of the State’s pathologist that the victim was raped was the only evidence offered to prove this critical aspect of the State’s case. In re the Reinstatement of Turner, 635 So. 2d 894, 1994 Miss. LEXIS 197 (Miss. 1994).

A murder defendant was not denied a fair trial because his motion for a court-appointed expert criminalist was denied, in spite of the defendant’s argument that he was thereby prevented from properly presenting his theory of defense of accidental discharge of the pistol used to kill the victim, where the State did not present any expert and the defendant elicited testimony from witnesses to support his defense of accidental discharge. Green v. State, 631 So. 2d 167, 1994 Miss. LEXIS 13 (Miss. 1994).

A murder defendant was not denied a fair trial by the denial of his motion for a court-appointed psychologist, in spite of the defendant’s argument that he was thereby prevented from properly presenting his theory of defense related to his state of mind when he was assaulted by the victim, where the State offered no expert testimony regarding the defendant’s state of mind, the defendant did not testify as to his state of mind, and the record did not “even hint at a defense of this nature.” Green v. State, 631 So. 2d 167, 1994 Miss. LEXIS 13 (Miss. 1994).

While the due process clause requires that an indigent defendant should at times be allowed an expert in the interest of fundamental fairness, a court is not required to appoint an expert upon demand. Some of the factors to be considered in determining if the defendant was denied a fair trial when the court did not appoint a requested expert include the degree of access the defendant had to the State’s experts and whether those experts were available for vigorous cross-examination. Another consideration is the lack of prejudice or incompetence on the part of the State’s experts. Fisher v. Eupora, 587 So. 2d 878, 1991 Miss. LEXIS 669 (Miss. 1991).

In absence of anything in the record that suggests that a defendant charged with uttering a forgery was prejudiced to the point of warranting a new trial by the failure to furnish him with a handwriting expert, the trial court did not err in refusing defendant’s request for the expert. Burt v. State, 493 So. 2d 1325, 1986 Miss. LEXIS 2490 (Miss. 1986).

Capital murder defendant is not denied due process by trial court’s refusal to provide defendant funds with which to obtain own experts, nor does defendant suffer any disadvantage thereby where defendant’s counsel has full access to experts of state, together with investigation and reports of those experts, counsel is able to subject them to rigid cross-examination, and there is nothing to indicate that state experts are biased or incompetent. Johnson v. State, 476 So. 2d 1195, 1985 Miss. LEXIS 2257 (Miss. 1985).

133. – Arguments to jury, criminal practice and procedure.

Considerable prejudice resulted from the prosecutor’s inappropriate statements to the jury and the supreme court was unable to say, beyond a reasonable doubt, that such prejudice was overcome by the evidence; thus, defendant’s sentence and conviction were reversed and remanded to the trial court for a new trial. Brown v. State, 986 So. 2d 270, 2008 Miss. LEXIS 340 (Miss. 2008).

There was no evidence that the prosecution’s statements during its opening and closing statements, related to defendant’s presence in jail, prevented defendant from receiving a fair trial or warranted reversal under the plain error doctrine; therefore, defendant’s escape and assault on law enforcement officer convictions were upheld. Sims v. State, 919 So. 2d 264, 2005 Miss. App. LEXIS 433 (Miss. Ct. App. 2005).

In a capital murder case, the State’s invocation of higher biblical law did not violate the inmate’s rights under the Eighth and Fourteenth Amendments, or under Miss. Const. art. 3, § 14, because the prosecutor was responding to the biblical argument made by the inmate’s attorney; also, the inmate’s ineffective assistance of counsel claim for counsels’ failure to object to the State’s biblical references had to fail. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

In a prosecution for auto theft, the state’s cross-examination of the defendant and closing argument regarding his post-arrest failure to state that it was the passenger in the vehicle he was driving that had stolen the vehicle were impermissible references to his post-arrest right to remain silent, and it was error for the trial court to permit the cross-examination and comments during closing argument; the court rejected the state’s contention that reference to the defendant’s post-arrest silence was permissible because the defendant had not yet been given his Miranda warnings. McGrone v. State, 2001 Miss. App. LEXIS 140 (Miss. Ct. App. Apr. 3, 2001), rev'd, 807 So. 2d 1232, 2002 Miss. LEXIS 41 (Miss. 2002).

For district court to grant habeas relief based upon remarks by the prosecutor, district court must find more than that prosecutor’s comments were undesirable or even universally condemned, and relevant question is whether the prosecutors’ comments so infected the trial with unfairness as to make the resulting conviction a denial of due process, and in the context of a death penalty case, the comments must have been such as to render the sentencing fundamentally unfair. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

Claim of improper jury argument by state does not present claim of constitutional dimensions unless it is so prejudicial as to render defendant’s trial fundamentally unfair within meaning of Fourteenth Amendment due-process clause; to show prejudice to his substantive rights, defendant must demonstrate either persistent and pronounced misconduct or that evidence was so insubstantial that but for remarks no conviction would have occurred; arguments concerning aggravating circumstances, appropriateness of mercy, and whether or not jury was final authority, represented neither persistent and pronounced misconduct nor was evidence so insubstantial that conviction would not have occurred but for prosecutor’s remarks. Stringer v. Scroggy, 675 F. Supp. 356, 1987 U.S. Dist. LEXIS 11203 (S.D. Miss. 1987), aff'd, 862 F.2d 1108, 1988 U.S. App. LEXIS 17949 (5th Cir. Miss. 1988).

134. – Instructions to jury, criminal practice and procedure.

Because the jury was instructed on all the elements of capital murder, defendant was not deprived of the constitutional rights to a fair trial and to a jury determination of every element of the crime charged when defendant was convicted under the one continuous transaction doctrine of capital murder with the underlying felony of robbery. Batiste v. State, 121 So.3d 808, 2013 Miss. LEXIS 295 (Miss. 2013), cert. denied, 572 U.S. 1117, 134 S. Ct. 2287, 189 L. Ed. 2d 178, 2014 U.S. LEXIS 3424 (U.S. 2014).

Habeas relief may only be granted when challenged jury instruction so infects the entire trial that the resulting conviction violated due process. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

Trial court did not mislead jury, in capital murder case involving underlying felony of sexual battery, by instructing that “the fact that the actual moment of the victim’s death may have preceded alleged consummation of the underlying felony of Sexual Battery does not void the charge of Capital Murder,” even though defendant claimed that jury was misled on intent necessary for capital murder as instruction could be correct statement of law only if jury also found that defendant had formed intent to commit sexual battery; when taken in conjunction with other instructions, jury was clearly informed that it must find defendant intended to kill victim while engaged in commission of sexual battery. Walker v. State, 671 So. 2d 581, 1995 Miss. LEXIS 494 (Miss. 1995), cert. denied, 519 U.S. 1011, 117 S. Ct. 518, 136 L. Ed. 2d 406, 1996 U.S. LEXIS 7236 (U.S. 1996).

Trial court did not deny due process rights of capital murder defendant by giving instruction that jury had first to acquit defendant on greater charge of capital murder before going on to consider whether defendant had committed lesser crime of murder. Walker v. State, 671 So. 2d 581, 1995 Miss. LEXIS 494 (Miss. 1995), cert. denied, 519 U.S. 1011, 117 S. Ct. 518, 136 L. Ed. 2d 406, 1996 U.S. LEXIS 7236 (U.S. 1996).

Mistrial was not required in capital murder case after victim’s grandmother “became emotional” when asked to look at pictures identifying victim during guilt phase; defendant had not made contemporary objection, thus precluding court from giving curative instruction which jury would have presumably followed, and as incident occurred after defendant had been officially found guilty he could not be heard to complain about an emotional state which he had brought on through his own actions. Walker v. State, 671 So. 2d 581, 1995 Miss. LEXIS 494 (Miss. 1995), cert. denied, 519 U.S. 1011, 117 S. Ct. 518, 136 L. Ed. 2d 406, 1996 U.S. LEXIS 7236 (U.S. 1996).

Submission to jury of “especially heinous, atrocious or cruel” aggravating factor in capital murder prosecution without limiting instruction violated Eighth Amendment. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

A jury instruction in a capital murder prosecution did not violate the due process clause of the 14th Amendment by relieving the State of the burden of proving intent to commit the underlying felonies where the instruction stated that the defendant should be found guilty if he wilfully performed “any act which is an element of the crimes with which he is charged or immediately connected with them or leading to their commission.” Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

The trial court in a prosecution for attempted armed robbery and aggravated assault erred reversibly by refusing defendant’s proffered instruction on his alibi defense, notwithstanding a court rule permitting attorneys to submit no more than six instructions on the substantive law of the case the court further erred in permitting the alleged victim to testify that he had told others that he had identified defendant, in that such statements improperly bolstered his permissible identification testimony with hearsay. Young v. State, 451 So. 2d 208, 1984 Miss. LEXIS 1755 (Miss.), cert. denied, 469 U.S. 860, 105 S. Ct. 192, 83 L. Ed. 2d 125, 1984 U.S. LEXIS 3640 (U.S. 1984).

Contention of defendant that trial court’s failure to instruct jury on intent and that mitigating circumstances need not be proven beyond reasonable doubt violated his rights as secured by Eighth and Fourteenth Amendments was rejected; mitigating circumstances instruction would not have affected outcome, in light of absence of closing argument on mitigating circumstances; refusal of intent instruction, which traced language of Enmund v Florida(1982) 458 US 782, 73 L Ed 2d 1140, 102 S Ct 3368, on remand (Fla) 439 So 2d 1383, later app (Fla App D2) 459 So 2d 1160, 9 FLW 2506, quashed, ctfd ques ans (Fla) 476 So 2d 165, 10 FLW 441 and (diverged from Tison v Arizona (US) 95 L Ed 2d 127, 107 S Ct 1676 as stated in Smith v Dugger (CAll Fla) 840 F.2d 787, was not raised on direct appeal and was therefore procedurally barred. Even if it were not procedurally barred, there is no requirement that jury find existence of intent factors; in Cabana v Bullock (1986) 474 US 376, 88 L Ed 2d 704, 106 S Ct 689, on remand (CAS Miss) 784 F.2d 187 and (diverged from on other grounds Rose v Clark, 478 US 570, 92 L Ed 2d 460, 106 S Ct 3101 (disagreed with by multiple cases as stated in State v Seward (La) 509 So 2d 413) and on remand (CA6) 822 F.2d 596 and (not followed Re Mercer, 108 Wash 2d 714, 741 P2d 559 as stated in Pope v Illinois (US) 95 L Ed 2d 439, 107 S Ct 1918, 14 Media L R 1001, later proceeding (2d Dist) 162 Ill App 3d 299, 113 Ill Dec 547, 515 NE2d 356, app den (III) 117 Ill Dec 229, 520 NE2d 390 and (not followed State v Kam ( Hawaii) 748 P2d 372) and (not followed People v Lee, 43 Cal 3d 666, 238 Cal Rptr 406, 738 P2d 752). The United States Supreme Court stated that intent findings could be made by jury, trial judge, or Appellate Court, and Mississippi Supreme Court had made equivalent of required findings in its opinion on direct appeal. Stringer v. Scroggy, 675 F. Supp. 356, 1987 U.S. Dist. LEXIS 11203 (S.D. Miss. 1987), aff'd, 862 F.2d 1108, 1988 U.S. App. LEXIS 17949 (5th Cir. Miss. 1988).

In a prosecution for aggravated assault on an indictment charging defendant with being a habitual criminal, the trial court’s failure to give a limiting instruction on its own motion informing the jury not to consider defendant’s prior convictions as evidence of the assault charges did not deny him due process of law, where defendant had testified freely as to the offenses made part of the indictment and where no limiting instruction was requested by defendant’s counsel; under the totality of the circumstances, such an instruction was not constitutionally required. Nettles v. State, 380 So. 2d 246, 1980 Miss. LEXIS 1861 (Miss. 1980).

135. – Lesser included offenses, criminal practice and procedure.

Where no further evidence is needed to establish lesser offense, once prosecution has proved greater offense, punishment for lesser is barred.

The due process clause of the Fourteenth Amendment requires a trial judge to give a lesser included offense instruction to the jury if the evidence would permit a jury rationally to find the defendant guilty of the lesser offense and acquit him of the greater. There is no due process violation, however, unless there is some evidence to support an instruction on the lesser included offense. Bell v. Watkins, 692 F.2d 999, 1982 U.S. App. LEXIS 23546 (5th Cir. Miss. 1982), cert. denied, 464 U.S. 843, 104 S. Ct. 142, 78 L. Ed. 2d 134, 1983 U.S. LEXIS 1426 (U.S. 1983).

136. – Habitual offenders, criminal practice and procedure.

Admission of evidence in habitual offender capital murder case that defendant’s habitual offender status makes him ineligible for parole is founded upon theory that Eighth and Fourteenth Amendments require that sentencer not be precluded from considering, as mitigating factors, aspects of defendant’s character or record proffered as a basis for sentence less than death. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

In any case in which the imposition of the death penalty is possible, the habitual offender hearing should be held prior to jury deliberations on the death penalty; where a defendant is adjudged to be a habitual offender, the jury should be informed that a life sentence means “life, without probation or parole.” Accurately informing the jury that the alternative to the death penalty is life, without benefit of probation or parole, can only enhance the sentencing process, insuring that excessive punishment shall not be inflicted. Berry v. State, 575 So. 2d 1, 1990 Miss. LEXIS 849 (Miss. 1990), cert. denied, 500 U.S. 928, 111 S. Ct. 2042, 114 L. Ed. 2d 126, 1991 U.S. LEXIS 2673 (U.S. 1991).

A defendant was properly sentenced as a habitual offender pursuant to §99-19-81, even though the habitual offender language of the indictment failed to state the dates of his prior convictions, where all of the information contained in the indictment, and specifically the cause number, afforded the defendant access to the date of judgment. Therefore, the information pertaining to the dates of the judgments was substantially set forth in the indictment and sufficient information was afforded the defendant to inform him of the specific prior convictions upon which the State relied for enhanced punishment to comply with due process. Benson v. State, 551 So. 2d 188, 1989 Miss. LEXIS 361 (Miss. 1989).

The application of §99-19-81 to recidivist murderers, rapists and kidnappers does not violate the Fourteenth Amendment of the United States Constitution even though under the habitual offender statutes, §99-19-83 and §99-19-81, taken together, only those convicted of murder, rape or kidnapping can be sentenced to life without parole without proof of a prior conviction of a crime of violence. Sutherland v. State, 537 So. 2d 1360, 1989 Miss. LEXIS 23 (Miss. 1989).

Defendant charged with being habitual criminal is not deprived of fair trial because grand jury indicting defendant has been informed of prior convictions; indeed, grand jury of necessity has to be informed of prior convictions before indictment seeking enhanced punishment can be sought by state. Washington v. State, 478 So. 2d 1028, 1985 Miss. LEXIS 2277 (Miss. 1985).

137. – Sentencing proceeding, criminal practice and procedure.

Victim-impact testimony of the murder victim’s parent was admissible because the parent testified as to the parent’s relationship with the victim and the impact the victim’s death had had on the family, and the victim-impact testimony was not so inflammatory as to have prejudiced defendant or to have rendered defendant’s trial fundamentally unfair. Batiste v. State, 121 So.3d 808, 2013 Miss. LEXIS 295 (Miss. 2013), cert. denied, 572 U.S. 1117, 134 S. Ct. 2287, 189 L. Ed. 2d 178, 2014 U.S. LEXIS 3424 (U.S. 2014).

State of Mississippi was permitted to impeach defense witnesses, who testified at a sentencing hearing as to defendant’s good character, by asking if the witnesses were aware that defendant had pleaded guilty to a felony charge of credit-card fraud. Batiste v. State, 121 So.3d 808, 2013 Miss. LEXIS 295 (Miss. 2013), cert. denied, 572 U.S. 1117, 134 S. Ct. 2287, 189 L. Ed. 2d 178, 2014 U.S. LEXIS 3424 (U.S. 2014).

In a case in which defendant appealed his sentence of death by lethal injection for violating Miss. Code Ann. §97-3-19(2)(f), he argued unsuccessfully that when the prosecutor asked the victim’s grandfather what he believed defendant’s punishment should be, that action violated his rights under the Sixth, Eighth, and Fourteenth Amendments of the U.S. Constitution and under Article 3, Sections 14, 25, and 28 of the Mississippi Constitution. It was highly unlikely that the grandfather’s statement, when read as a whole and taken in context with all the evidence before the sentencing judge, was the reason the judge imposed the death penalty; in fact, the trial judge’s sentencing order, in which he made findings of facts as to the various aggravating and mitigating factors, did not even mention the grandfather’s testimony. Wilson v. State, 21 So.3d 572, 2009 Miss. LEXIS 450 (Miss. 2009), cert. denied, 560 U.S. 909, 130 S. Ct. 3282, 176 L. Ed. 2d 1191, 2010 U.S. LEXIS 3966 (U.S. 2010).

Defendant was entitled to habeas relief on issue of state court’s application of especially heinous, atrocious, or cruel aggravating circumstance, and to vacated death sentence with new sentencing hearing, where state Supreme Court failed to make any factual findings concerning the death of murder victim and failed to set forth any facts on which to base such an opinion; given lack of any factual basis to support court’s conclusion, no reasonable factfinder could conclude that the crime was conscienceless or pitiless and unnecessarily torturous where victim was shot immediately with little or no warning upon opening front door to defendant. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

Sufficiency of evidence claim is pure question of law and “rational factfinder” standard is the appropriate standard of review in habeas proceeding in determining whether a state court’s application of its constitutionally adequate aggravating factor in capital murder case was so erroneous as to raise an independent due process or Eighth Amendment violation. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

In separate capital murder trials for killings of two persons, evidence of the other murder was admissible in each trial under Mississippi law to show the motive to kill the other victim and as part of an inseparable transaction, where victims were married to one another, wife was present when husband was killed, and it would have been difficult if not impossible to explain the facts of either murder without mentioning the other murder. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

In determining whether a state court’s application of its constitutionally adequate aggravating factor was so erroneous as to raise an independent due process or Eighth Amendment violation for habeas corpus purposes, even though it is issue of law, habeas corpus court must afford a presumption of correctness to any factual findings made by state court in its determination of whether the facts were sufficient to support the challenged aggravating circumstance; however, habeas court is not necessarily bound by such factual findings. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

Petitioner was not entitled to habeas relief for sentencing jury’s consideration as aggravating circumstance that petitioner was under sentence of imprisonment, where certified copy of judgment from another state court that petitioner was on probation at time of capital murder trials was presented and petitioner offered no rebutting evidence, other than statement in his confession that was redacted during guilty phase. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

Instruction given in capital murder trials contained proper limiting definition of the especially heinous, atrocious or cruel aggravating factor; court defined especially heinous, atrocious or cruel as a conscienceless or pitiless crime which is unnecessarily torturous to the victim, and state Supreme Court determined that such language properly channeled jury’s discretion during sentencing phase. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

Permitting prosecutor in capital sentencing proceeding to exercise peremptory challenges on two potential jurors based on their views of death penalty was not error; views regarding death penalty did not qualify those jurors as members of a district class protected under Batson or its progeny. (Per Smith, J., with three Justices concurring, and Chief Justice and two Justices concurring in result.) Holland v. State, 705 So. 2d 307, 1997 Miss. LEXIS 388 (Miss. 1997), cert. denied, 525 U.S. 829, 119 S. Ct. 80, 142 L. Ed. 2d 63, 1998 U.S. LEXIS 5017 (U.S. 1998).

Testimony by murder victim’s daughter centering around disappearance and kidnapping of her mother after she left church and describing some of her mother’s personal characteristics was necessary to development of case, was relevant to aggravating circumstance of kidnapping, and was admissible in sentencing trial, despite minimum probative value of evidence about victim’s marriage, where state made no attempt to establish impact of victim’s death on her husband. Berry v. State, 703 So. 2d 269, 1997 Miss. LEXIS 639 (Miss. 1997).

Capital sentencing scheme in which prosecutor has discretion as to which murders he can try as capital offenses did not grant unfettered discretion to prosecutor and did not violate constitutional protections, where discretion was statutorily limited, manslaughter instruction had to be given if warranted by facts, and imposition of death penalty was channelled through weighing of aggravating and mitigating circumstances. Berry v. State, 703 So. 2d 269, 1997 Miss. LEXIS 639 (Miss. 1997).

At sentencing phase in capital murder case, jury is entitled to know by instruction whether defendant is eligible for parole, as that information is nonspeculative and provides jurors with relevant information to determine defendant’s fate. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

The “specially heinous” aggravator does not violate Fourteenth Amendment. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Aggravating circumstances used to determine whether to impose the death penalty do not themselves carry any penalty, as their only purpose is to narrow class of individuals most worthy of receiving the death penalty and to furnish guidance to the jury, so that use of aggravating circumstance, such as sexual battery, which has also been the basis for conviction for an offense does not violate double jeopardy. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Trial court did not unconstitutionally limit closing argument at guilt phase of capital murder case by denying defendant full 5 minutes of additional time requested after original 60 minutes had expired; 60-minute period had been requested by defendant’s counsel, and after 5 minute extension request was refused counsel was allowed to place remaining 4 minutes into record, and case was not so complex as to require more time. Walker v. State, 671 So. 2d 581, 1995 Miss. LEXIS 494 (Miss. 1995), cert. denied, 519 U.S. 1011, 117 S. Ct. 518, 136 L. Ed. 2d 406, 1996 U.S. LEXIS 7236 (U.S. 1996).

Testimony dealing with victim’s murder, offered at resentencing in capital murder case to give second sentencing jury evidence of specific facts surrounding murder, not to prove murder was “especially atrocious, heinous or cruel,” was relevant, and its admission did not violate due process by relating to aggravating factor not mentioned in motion in limine; defendant entered sentencing hearing knowing that prosecution was seeking death penalty and that State would attempt to prove 2 aggravators and proof associated with each, and was apprised that jury would be informed of facts surrounding murder, but did not object. Russell v. State, 670 So. 2d 816, 1995 Miss. LEXIS 617 (Miss. 1995), cert. denied, 519 U.S. 982, 117 S. Ct. 436, 136 L. Ed. 2d 333, 1996 U.S. LEXIS 6884 (U.S. 1996), cert. dismissed, 520 U.S. 1249, 117 S. Ct. 2406, 137 L. Ed. 2d 1064, 1997 U.S. LEXIS 3537 (U.S. 1997).

A prosecutor’s remarks during the penalty phase of a capital murder prosecution did not constitute an improper comment on the defendant’s failure to testify where the prosecutor stated that the defendant “showed no compassion, but would send a lawyer up here and ask you for compassion,” since the argument pointed out the lack of a mitigation defense presented by the defendant, and that he was reduced to sending his lawyer in to plead for his life after all else had failed. Davis v. State, 660 So. 2d 1228, 1995 Miss. LEXIS 287 (Miss. 1995), cert. denied, 517 U.S. 1192, 116 S. Ct. 1684, 134 L. Ed. 2d 785, 1996 U.S. LEXIS 3101 (U.S. 1996).

The prosecutor’s closing argument in the guilt phase of a capital murder prosecution did not constitute an improper comment on the defendant’s right to remain silent following arrest where the prosecutor, while discussing a county jail inmate’s testimony as to statements made by the defendant while he was in the jail, referred to the relationship between the defendant and the witness, and described the circumstances under which the statements were made. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

A prosecutor’s closing argument in a capital murder case did not constitute a comment on the defendant’s failure to testify at trial, in spite of the defendant’s argument that the prosecutor’s comments highlighted the fact that the only people alive who could have testified as to the events surrounding the murders were the defendant and his accomplice, where the prosecutor merely stated that the defendant and his accomplice saw to it that there were no eyewitnesses, and that “people who kill their victims and kill their eyewitnesses cannot be set free.” Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

The trial court in a capital murder prosecution did not err in permitting 3 off-the-record bench conferences and a jury instruction conference to be conducted when the defendant was not present where the defendant was represented by counsel at every critical stage of the proceedings, and he was not prejudiced by his absences at the conferences. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

A prosecutor’s biblical references during closing argument at the sentencing phase of a capital murder prosecution did not deprive the defendant of a fair trial, as the comments were within the “broad latitude” afforded counsel in closing argument. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

In the sentencing phase of a capital murder prosecution, the trial court did not unconstitutionally limit consideration of emotional disturbance mitigation evidence to “extreme” emotional disturbance by submitting an instruction on “extreme mental or emotional disturbance” where the instructions on mitigating factors, when read as a whole, provided ample opportunity for the jury to give consideration to any emotional disturbance the defendant may have suffered. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

In the sentencing phase of a capital murder prosecution, the trial court did not err in refusing to give peremptory instructions requiring the jury to find 5 mitigating factors which the defendant claimed were undisputed, since the existence of mitigating factors should be left to the jury’s consideration; while it is constitutionally required that a jury not be precluded from considering any mitigating factor, a jury is not required to find such factors. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

In imposing a sentence of death in a capital murder case, the fact that the jury’s specific written findings supporting its verdict were “parroted” from the sentencing forms did not render the verdict ambiguous in violation of the 6th and 14th Amendments to the United States Constitution and Article 3, § 24 of the Mississippi Constitution. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

In the sentencing phase of a capital murder prosecution, the State’s closing argument did not constitute a comment on the defendant’s failure to take the witness stand in his own defense where the State made the following argument: “Do you think she was suffering? Do you think that’s cruel and atrocious, and what’s even more than that, what do you think was running through [defendant’s] head as he sat through watching her gag on her own blood? What do you think he was thinking?” Thorson v. State, 653 So. 2d 876, 1994 Miss. LEXIS 600 (Miss. 1994).

A sentencing instruction in a capital murder prosecution properly defined the “especially heinous, atrocious, or cruel” aggravating factor, and thus there was no violation of the Eighth Amendment to the United States Constitution, where the instruction defined the term “heinous, atrocious, or cruel” as “those situations where the actual commission of the capital felony was accomplished by such additional acts to set the crime apart from the norm of capital felonies by the consciencelessness or pitilessness of the crime which is unnecessarily tortuous to the victim.” Hansen v. State, 649 So. 2d 1256, 1994 Miss. LEXIS 496 (Miss. 1994), cert. denied, 516 U.S. 986, 116 S. Ct. 513, 133 L. Ed. 2d 422, 1995 U.S. LEXIS 7828 (U.S. 1995).

Submission to a capital sentencing jury of the mitigating factor that the defendant had no “significant” history of criminal activity was not improper, in spite of the defendant’s argument that the factor was unconstitutionally applied in his particular case because it implied that he had at least some criminal history when in fact he had none, where the mitigating factor was taken verbatim from the list provided by the legislature to be considered in imposing sentence, and the defendant had the opportunity during closing argument to dispel any notion the jury might have had that he had a history of criminal activity. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

In the sentencing phase of a capital murder prosecution, the definition of the “especially heinous, atrocious, or cruel” aggravating factor contained in the limiting instruction was constitutionally adequate where the instruction described an especially heinous, atrocious or cruel capital offense as a “conscienceless or pitiless crime which is unnecessarily torturous to the victim” and which can be shown by the fact that the defendant “utilized a method of killing which caused serious mutilation where there is a dismemberment of the corpse, where the defendant inflicted physical or mental pain before death, where there was mental torture and aggravation before death or where a lingering or torturous death was suffered by the victim.” Conner v. State, 632 So. 2d 1239, 1993 Miss. LEXIS 541 (Miss. 1993), cert. denied, 513 U.S. 927, 115 S. Ct. 314, 130 L. Ed. 2d 276, 1994 U.S. LEXIS 7088 (U.S. 1994), overruled, Weatherspoon v. State, 732 So. 2d 158, 1999 Miss. LEXIS 4 (Miss. 1999).

In the sentencing phase of a capital murder prosecution, a jury instruction which provided a step-by-step guide in arriving at a verdict did not impermissibly limit the consideration of mitigating evidence, in spite of the defendant’s argument that the language of the instruction could have misled the jury to believe that a finding of mitigating circumstances must be unanimous because “everything else” required a unanimous finding, where the mitigating circumstances portion of the instruction did not contain the word “unanimous” or “unanimously,” and the instruction would not have implied to any reasonably literate juror that he or she should await unanimity before considering a mitigating circumstance. Conner v. State, 632 So. 2d 1239, 1993 Miss. LEXIS 541 (Miss. 1993), cert. denied, 513 U.S. 927, 115 S. Ct. 314, 130 L. Ed. 2d 276, 1994 U.S. LEXIS 7088 (U.S. 1994), overruled, Weatherspoon v. State, 732 So. 2d 158, 1999 Miss. LEXIS 4 (Miss. 1999).

A trial court’s limitation of closing argument to 15 minutes in the sentencing phase of a capital murder prosecution did not violate the defendant’s constitutional right to a fair trial where the defendant made no proffer as to what he would have argued had he been given additional time, and he raised no objection to the time limit at the time of trial. Conner v. State, 632 So. 2d 1239, 1993 Miss. LEXIS 541 (Miss. 1993), cert. denied, 513 U.S. 927, 115 S. Ct. 314, 130 L. Ed. 2d 276, 1994 U.S. LEXIS 7088 (U.S. 1994), overruled, Weatherspoon v. State, 732 So. 2d 158, 1999 Miss. LEXIS 4 (Miss. 1999).

In the sentencing phase of a capital murder prosecution, the prosecutor’s comments during closing argument portraying the victim as a “grandmother” who left home “wearing her mother’s day present ring on her finger,” and asking the jury not to forget the victim “because she deserves justice” did not constitute an impermissible argument to sentence the defendant to death out of vengeance and sympathy for the victim; the introduction of evidence concerning the background and character of the victim and the impact of the crime on the victim’s family is not prohibited, as such evidence may be relevant to the jury’s decision as to whether the death penalty should be imposed. Conner v. State, 632 So. 2d 1239, 1993 Miss. LEXIS 541 (Miss. 1993), cert. denied, 513 U.S. 927, 115 S. Ct. 314, 130 L. Ed. 2d 276, 1994 U.S. LEXIS 7088 (U.S. 1994), overruled, Weatherspoon v. State, 732 So. 2d 158, 1999 Miss. LEXIS 4 (Miss. 1999).

The imposition of the death penalty against a mentally retarded defendant with the functional equivalent of a 7-year-old did not violate the cruel and unusual punishment clause of the Eighth Amendment, where the jury was instructed as to the mitigating factors enumerated in §§99-19-101(6)(b), (f) and (g) and these 3 mitigating factors were argued to the jury, so that the jury was provided a vehicle, through appropriate jury instructions and argument, to consider and give effect to the mitigating evidence of the defendant’s mental retardation in rendering its sentencing decision. Jones v. State, 602 So. 2d 1170, 1992 Miss. LEXIS 345 (Miss. 1992).

A defendant was denied his constitutional right to a fair trial by an impartial jury in the sentencing phase of a capital murder prosecution where, upon conclusion of the guilt phase but before the sentencing phase began, the jury prematurely deliberated and sent a note to the judge indicating their decision that the defendant should be sentenced to death. Rather than questioning the jurors in order to determine whether each of them could remain impartial during the sentencing phase, the judge merely instructed the jurors to “refrain from further deliberations,” which was insufficient to insure that the defendant’s right to a fair hearing was not prejudiced. Holland v. State, 587 So. 2d 848, 1991 Miss. LEXIS 648 (Miss. 1991).

In the sentencing phase of a capital robbery/murder prosecution, convictions for armed robberies committed by the defendant after the robbery/murder were admissible as aggravating circumstances. Turner v. State, 573 So. 2d 657, 1990 Miss. LEXIS 792 (Miss. 1990), cert. denied, 500 U.S. 910, 111 S. Ct. 1695, 114 L. Ed. 2d 89, 1991 U.S. LEXIS 2522 (U.S. 1991).

The Eighth and Fourteenth Amendments require that the sentencer not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character, record, or any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. West v. State, 519 So. 2d 418, 1988 Miss. LEXIS 17 (Miss. 1988).

Submission of aggravating circumstances of heinous, atrocious, and cruel crime did not deny defendant his rights under Constitution of Mississippi and United States; although defendant contended there was no evidence supporting this aggravating circumstance and that evidence was uncontroverted that victim was shot dead as soon as he opened door to his house, state argued that there was no evidence that victim was dead or even unconscious when later shots were fired. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Submission to jury of aggravating circumstances alleging commission of murder in course of burglary, robbery, and/or kidnapping did not deny defendant his constitutional rights. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Instructions at penalty phase of trial did not deprive defendant of his constitutional rights by failing adequately to inform jury of their option to recommend life sentence, where court clearly instructed jury that it should weigh mitigating circumstances against aggravating circumstances and if former outweighed latter, then it should return sentence of life imprisonment. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

In a prosecution for capital murder committed during a burglary, the jury’s verdict imposing the death penalty complied with this section, despite defendant’s contention that the jury did not state the specific facts upon which it based its sentence, where neither this section nor case law required such detailed findings. However, pursuant to §99-19-105, the death sentence would be reversed and the case remanded for sentencing to life imprisonment, where the victim, upon seeing defendant, began firing his pistol and was then shot by defendant, and where defendant had the opportunity to shoot the victim’s wife but did not; the penalty of death in this case was disproportionate to the penalty imposed in similar cases. Coleman v. State, 378 So. 2d 640, 1979 Miss. LEXIS 2542 (Miss. 1979).

Section 97-3-65, governing sentencing procedures in rape cases, does not violate due process or equal protection of the law, even though no provision is made for the jury to consider mitigating circumstances in fixing a defendant’s sentence; the rule requiring a bifurcated trial is applicable only to cases involving capital offenses. White v. State, 375 So. 2d 220, 1979 Miss. LEXIS 2271 (Miss. 1979).

A capital murder defendant’s sentence of death would not be set aside for failure to grant a proper limiting instruction regarding the “especially heinous, atrocious and cruel” aggravating factor as required by the Eighth and Fourteenth Amendments to the United States Constitution where the jury was given an instruction defining the “especially heinous” aggravating factor which tracked the language in Coleman v. State (1979, Miss) 378 So. 2d 640 (criticized by Cantrell v. State (Miss) 507 So. 2d 325 as stated in Jenkins v. Forrest County General Hospital (Miss) 538 So 2d 1162, corrected, reh’g denied (Miss) 1988 Miss LEXIS 573, withdrawn by publisher, reported at (Miss) 542 So. 2d 1180, reh’g denied (Miss) 1989 Miss LEXIS 283 and therefore the jury was properly instructed on the “especially heinous” aggravating factor. Lockett v. State, 614 So. 2d 888, 1992 Miss. LEXIS 609 (Miss. 1992), cert. denied, 510 U.S. 1040, 114 S. Ct. 681, 126 L. Ed. 2d 649, 1994 U.S. LEXIS 59 (U.S. 1994).

138. – Sentence and punishment, criminal practice and procedure.

Prisoners awaiting execution in Mississippi were not entitled to an injunction preventing the State from conducting executions with compounded pentobarbital because Mississippi’s sovereign immunity prevented a federal court from enjoining state officials to follow state law, Mississippi state law empowered prisoners to challenge their sentence, and the prisoners did not show they were likely to succeed in establishing a violation of either their procedural or substantive due process rights. Jordan v. Fisher, 823 F.3d 805, 2016 U.S. App. LEXIS 11734 (5th Cir. Miss. 2016), cert. denied, — U.S. —, 137 S. Ct. 1069, 197 L. Ed. 2d 188, 2017 U.S. LEXIS 1405 (U.S. 2017).

Defendant’s motion for post-conviction relief was properly denied because his sentence was not unconstitutionally vague and subject to more than one interpretation; he was sentenced to 18 years in prison with 12 years to serve, and 18 minus 12 left six years suspended, which is what the language in the sentencing order reflected. Jones v. State, 956 So. 2d 310, 2006 Miss. App. LEXIS 871 (Miss. Ct. App. 2006).

There was no equal protection violation when appellant received a 15-year sentence for statutory rape; appellant conceded that the statute applied equally to male and female defendants. McKenzie v. State, 946 So. 2d 392, 2006 Miss. App. LEXIS 388 (Miss. Ct. App. 2006).

Defendant’s sentence of two days in jail for driving under the influence and failing to dim his headlights was upheld where there was no absolute constitutional bar to sentence enhancement at a second trial; an on-the-record explanation of an enhanced sentence was not warranted after a trial de novo in a superior court following an appeal from an inferior court. Carr v. State, 942 So. 2d 816, 2006 Miss. App. LEXIS 856 (Miss. Ct. App. 2006).

Because the record was clear that defendant was six days past his 18th birthday at the time of the capital murder, he was over the age of 18, and was therefore eligible for the death penalty. Scott v. State, 938 So. 2d 1233, 2006 Miss. LEXIS 534 (Miss. 2006), overruled, Lynch v. State, 951 So. 2d 549, 2007 Miss. LEXIS 34 (Miss. 2007).

Harsher sentence imposed on defendant was proper where, in his second sentencing hearing, the judge heard new evidence concerning the events of the crimes and that evidence led him to believe that the crime was more heinous than the judge originally believed. There was no indication of vindictiveness and neither the double jeopardy provision nor the Equal Protection Clause imposed an absolute bar to the more severe sentence upon reconviction. Fowler v. State, 919 So. 2d 1129, 2005 Miss. App. LEXIS 581 (Miss. Ct. App. 2005), cert. denied, 921 So. 2d 1279, 2006 Miss. LEXIS 56 (Miss. 2006).

Defendant’s due process rights were not violated by his removal from the intensive supervision program; when defendant was taken off house arrest and placed in the Mississippi Department of Corrections’ custody, he merely experienced a change in his housing assignment and classification, which did not require a hearing since it did not involve a liberty interest. Brown v. Miss. Dep't of Corr., 906 So. 2d 833, 2004 Miss. App. LEXIS 1157 (Miss. Ct. App. 2004).

The defendant was not deprived of due process in connection with his forfeiture of good time credits as it was apparent that §47-5-138 provides much greater procedural protections than those which are typically found in extra-judicial prison revocation proceedings in that it only provides for a revocation of good time credits in the event that a “final order” is issued dismissing the prisoner’s lawsuit. Tubwell v. Anderson, 776 So. 2d 654, 2000 Miss. LEXIS 189 (Miss. 2000).

Section 47-5-138 is not unconstitutional in that it violates the equal protection clause of the Fourteenth Amendment since neither prison inmates nor indigents constitute a suspect class entitled to heightened scrutiny under the equal protection clause. Tubwell v. Anderson, 776 So. 2d 654, 2000 Miss. LEXIS 189 (Miss. 2000).

The banishment of the defendant from a 100 mile radius of the place that he committed a burglary was not justified where the trial court did not make an on the record finding of the benefits of banishment. Weaver v. State, 764 So. 2d 479, 2000 Miss. App. LEXIS 351 (Miss. Ct. App. 2000).

The defendant’s 25 year sentence fell within the guidelines of §97-3-79, was not excessive, and did not violate his Sixth and Fourteenth amendment rights, notwithstanding the defendant’s assertion that he was merely an accessory after the fact, where the trial judge found no reason to suspend any of the sentence the defendant had a previous conviction of burglary of an occupied dwelling. Lawson v. State, 748 So. 2d 96, 1999 Miss. LEXIS 289 (Miss. 1999).

The defendant’s due process rights were not breached when the trial court added court costs and assessments to the written order and administered additional conditions of the suspension of sentence. Goss v. State, 721 So. 2d 144, 1998 Miss. LEXIS 552 (Miss. 1998), overruled, Carter v. State, 754 So. 2d 1207, 2000 Miss. LEXIS 7 (Miss. 2000), overruled in part, Johnson v. State, 925 So. 2d 86, 2006 Miss. LEXIS 116 (Miss. 2006).

Contention that it was error for harsher sentence to be imposed after defendant invoked his constitutional right to fair trial would be considered on appeal, though it was not preserved at trial, as right to due process was implicated. Pierce v. Delchamps, Inc., 667 So. 2d 26, 1996 Miss. LEXIS 27 (Miss. 1996).

There was no violation of due process in imposing 25-year sentence for armed robbery following trial, after prior conviction and 15-year sentence pursuant to plea bargain had been set aside; there was no evidence of vindictiveness, particularly since there were two different sentencers and the second sentencer had benefit of hearing evidence at trial, and was the same judge who had granted motion to vacate first sentence on ground that defendant was not properly advised of his rights. Pierce v. Delchamps, Inc., 667 So. 2d 26, 1996 Miss. LEXIS 27 (Miss. 1996).

Trial court is prohibited from imposing heavier sentence upon defendant because he has exercised his constitutional right to trial by jury than sentence offered defendant in plea bargaining process. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

Imposition by trial court of heavier sentence than that which was offered in plea bargaining process is not abuse of discretion and violates no right of defendant where lenient sentence is proposed in pretrial plea bargain negotiations, where after rejecting same defendant is found guilty by jury, where before imposition of sentence trial judge is presented with evidence of aggravating circumstances relevant to sentencing not known to him at time of original plea bargain negotiations, where in fact trial judge imposes heavier sentence than was proposed at time of plea bargain and in fact bases imposition of heavier sentence upon information of aggravating circumstances of which he has been newly made aware, and where heavier sentence has not been imposed upon accused in whole or in part as penalty for his exercise of his constitutional right to trial by jury. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

Sentence of life imprisonment for crime of capital rape was appropriate for defendant convicted of raping 6-year-old child, despite act that defendant had been offered 5-year sentence during plea negotiations prior to trial; court was not involved in plea negotiations, did not impose heavier sentence merely because defendant exercised his constitutional right to jury trial, and merely followed statutory sentencing dictates. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

A court must base its revocation of a suspended sentence on a violation of the clear terms and conditions of the suspended sentence; due process requires that the trial judge at least orally inform the defendant of the terms and conditions upon which his or her suspended sentence is contingent before it may be properly revoked for the violation of those terms and conditions. Artis v. State, 643 So. 2d 533, 1994 Miss. LEXIS 468 (Miss. 1994).

A sentence of death was not improperly based on “vengeance and sympathy,” in spite of the defendant’s argument that the jury’s sentencing determination was improperly predicated on the personal characteristics of the victim, where in response to the defendant’s parents’ request to the jury not to sentence their son to death the prosecutor merely noted that the defendant’s parents were not the only ones who had suffered and grieved and that their “tears might be outweighed by the fact of the victim’s murder,” and he reminded the jury that the victim’s parents had also suffered a loss and that they must not forget the “cold, calculated killing” of the victim. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

Where police chief, who had apprehended students after responding to report of fight on or near school property, noticed single profanity written in dust on his car when he arrived at police station with four of students, and made several of them wash it and several other vehicles, students were entitled to partial summary judgment that their Fourteenth Amendment Rights were violated by being forced to wash car; and although no physical harm occurred, violation was not de minimis, considering plaintiff’s age and fact that exercise took place in view of passersby and of news media; “punishment” of pretrial detainees is prohibited and although regulatory restraints incident to detention are permissible, they must be reasonably related to legitimate goal, and in instant case were not. C-1 v. Horn Lake, 775 F. Supp. 940 (N.D. Miss. 1990).

A defendant’s equal protection challenge to his sentence of 14 years in the state penitentiary with 7 years suspended if he paid a $125,000 fine was premature because there was nothing in the record showing the defendant to be indigent. Arnett v. State, 532 So. 2d 1003, 1988 Miss. LEXIS 457 (Miss. 1988).

Judge may impose more severe sentence upon defendant following new trial and conviction for same charge for which defendant has successfully appealed original conviction but only if judge affirmatively states in record reasons for harsher sentence and only if reasons are based upon objective information concerning identifiable conduct on part of defendant occurring after time of original sentencing proceeding, or based upon objective information concerning events occurring after time of original sentencing proceeding that may throw new light upon defendant’s life, health, habits, conduct, or mental and moral propensities. Ross v. State, 480 So. 2d 1157, 1985 Miss. LEXIS 2430 (Miss. 1985).

Sentencing convicted defendant to life imprisonment under §99-19-83 is violation of due process where indictment under which defendant is convicted clearly notices defendant that state is seeking only 7 year term; this plain error is of constitutional dimensions and may be raised in post-conviction proceeding notwithstanding defendant’s failure to raise issue at trial or on direct appeal, and is ground for resentencing under §99-19-81. Smith v. State, 477 So. 2d 191, 1985 Miss. LEXIS 2067 (Miss. 1985).

Defendant who has been sentenced to 5 years imprisonment on basis of guilty plea to charge of receiving and possessing stolen property and who is retried after successfully seeking writ of error coram nobis may be sentenced to 10 years imprisonment upon subsequent conviction for burglary and being habitual offender and resentencing is not result of judicial vindictiveness in violation of due process. Darby v. State, 476 So. 2d 1192, 1985 Miss. LEXIS 2247 (Miss. 1985).

Denial of credit for time served in jail and of “good time” to person convicted of felony who appeals judgment of conviction and who remains in jail pending disposition of appeal due to inability to make bond, while allowing credit for time served in jail and award of “good time” to convicted felons serving sentence in county jail without appealing conviction is denial of equal protection, contrary to Fourteenth Amendment. Lacy v. State, 468 So. 2d 63, 1985 Miss. LEXIS 2040 (Miss. 1985).

Where defendant was convicted of possession of a controlled substance with intent to distribute, and sentenced to seven years in prison with two years suspended upon payment of a $3000 fine, the appellate court would hold that the question of whether the imposition of an additional two year imprisonment upon nonpayment of the fine constituted an impermissible discrimination against indigents in violation of equal protection clause of the Fourteenth Amendment was premature, in that the record did not reflect that the defendant was, in fact, indigent, nor did it reflect that the sentencing court was aware of any alleged indigency. Payne v. State, 462 So. 2d 902, 1984 Miss. LEXIS 1986 (Miss. 1984).

A term of probation requiring defendant to remain at least 125 miles away from a particular county did not violate his First, Fifth, or Fourteenth Amendment rights, where the record indicated that the trial judge carefully and meticulously explained to defendant his rights, the trial court found that defendant voluntarily and knowingly pled guilty, the Department of Corrections conducted an investigation of defendant prior to sentencing, and defendant accepted the terms of probation, which were neither unreasonable nor arbitrary. Cobb v. State, 437 So. 2d 1218, 1983 Miss. LEXIS 2926 (Miss. 1983).

It is impermissible for a trial judge to enhance a sentence because the defendant refused a plea bargain and put the state and court to the trouble of trial by jury. Pearson v. State, 428 So. 2d 1361, 1983 Miss. LEXIS 2505 (Miss. 1983).

A court may not first fine a defendant and then, because of his indigency, convert the fine into a jail sentence for failure of the defendant to make immediate payment. Reasonable alternatives to incarceration must first be resorted to in an attempt to afford the indigent an opportunity to satisfy his fine. Nelson v. Tullos, 323 So. 2d 539, 1975 Miss. LEXIS 1565 (Miss. 1975).

There was no denial of equal protection of the law or of due process in the imprisonment of an indigent, who, after pleading guilty to a misdemeanor charge, was sentenced to a jail term and to pay a fine, and who after serving her jail term was unable to pay the fine because of her indigency, and remained in jail to work out her fine. Wade v. Carsley, 221 So. 2d 725, 1969 Miss. LEXIS 1506 (Miss. 1969).

Due process in Mississippi requires the punishment of one charged with murder to be determined and fixed by the jury, rather than by the court. Yates v. State, 253 Miss. 424, 175 So. 2d 617, 1965 Miss. LEXIS 998 (Miss.), cert. denied, 382 U.S. 931, 86 S. Ct. 321, 15 L. Ed. 2d 342, 1965 U.S. LEXIS 241 (U.S. 1965).

Revocation of a suspended sentence without notice and an opportunity to be heard at public hearing to defendant violates the requirements of due process, even though the statute providing for such revocation does not specifically provide for notice and public hearing. Mason v. Cochran, 209 Miss. 163, 46 So. 2d 106, 1950 Miss. LEXIS 375 (Miss. 1950).

Revocation of suspended sentence in hospital where circuit judge was confined as patient, upon ex parte application of sheriff and county attorney, which was concurred in by the district attorney, at a time when defendant was confined in jail on pending charges for violations of law, and without notice or hearing to defendant, constituted violation of the requirements of due process. Mason v. Cochran, 209 Miss. 163, 46 So. 2d 106, 1950 Miss. LEXIS 375 (Miss. 1950).

139. Parole.

Court rejected the inmate’s claim that the parole board’s discretion to deny him parole denied him equal protection as provided under the Fifth and Fourteenth Amendments, because the inmate did not argue that he was a member of a suspect class or that a fundamental right had been violated, and the State naturally had an interest in protecting members of society from dangerous criminals and in punishing criminals for failing to abide by the law; therefore, a rational relationship existed between the parole board’s discretion and the State’s interests. Edmond v. Miller, 942 So. 2d 203, 2006 Miss. App. LEXIS 182 (Miss. Ct. App.), cert. denied, 942 So. 2d 164, 2006 Miss. LEXIS 718 (Miss. 2006).

140. Parole hearing.

Parole board’s failure to give the inmate a psychiatric examination prior to his parole hearing did not deny the inmate due process as provided in the Fourteenth Amendment; Miss. Code Ann. §47-7-3 did not require a psychiatric evaluation prior to the inmate’s parole hearing; rather the language of §47-7-3 clearly stated that the inmate must otherwise be eligible for parole before he was entitled to a psychiatric evaluation. Also, because Miss. Code Ann. § 47-7-3 and Miss. Code Ann. §47-7-17 use the permissive “may” and not the mandatory “shall,” the Mississippi Supreme Court has held that the statutes do not confer a constitutionally recognized liberty interest in parole or a psychiatric examination. Edmond v. Miller, 942 So. 2d 203, 2006 Miss. App. LEXIS 182 (Miss. Ct. App.), cert. denied, 942 So. 2d 164, 2006 Miss. LEXIS 718 (Miss. 2006).

141. –Cruel and unusual punishment, criminal practice and procedure.

In a case involving the sale of cocaine, defendant’s rights under Miss. Const. Art. 3, §§ 14, 26, 28 and U.S. Const. Amends. 5, 6, 8, and 14 were not violated by the maximum 30-year sentence; the sentence imposed was within the statutory limitation and was within the sound discretion of the trial judge. Johnson v. State, 950 So. 2d 178, 2007 Miss. LEXIS 125 (Miss. 2007).

Post-conviction relief was denied on the issue of whether defendant’s death sentence was unconstitutionally excessive in capital murder case based on the fact that it was felony murder because the issue was procedurally barred; even if it was not, the issue was meritless since this argument had been previously rejected, and the jury found all four factors under Miss. Code Ann. §99-19-101. Howard v. State, 945 So. 2d 326, 2006 Miss. LEXIS 531 (Miss. 2006), cert. denied, 552 U.S. 829, 128 S. Ct. 49, 169 L. Ed. 2d 43, 2007 U.S. LEXIS 9278 (U.S. 2007).

Defendant’s death sentence was proper pursuant to Miss. Code Ann. §§99-19-101(7),99-19-105(3) and the Eighth and Fourteenth Amendments where it was not imposed under the influence of passion, prejudice, or any other factor. Additionally, many of defendant’s complaints about various statements were procedurally barred for the failure to make a contemporaneous objection. Rubenstein v. State, 2005 Miss. LEXIS 789 (Miss. Dec. 1, 2005), op. withdrawn, 2006 Miss. LEXIS 424 (Miss. Aug. 10, 2006), sub. op., 941 So. 2d 735, 2006 Miss. LEXIS 411 (Miss. 2006).

Supreme Court of Mississippi vacated the death sentence imposed on a defendant convicted of capital murder. The death sentence violated the Eighth and Fourteenth Amendments to the United States Constitution, because defendant was only 17 years old when he committed the crime. Dycus v. State, 910 So. 2d 1100, 2005 Miss. LEXIS 589 (Miss. 2005).

At the time of his mental retardation evaluation, defendant (1) was appropriately groomed and properly maintained personal hygiene, (2) possessed a driver’s license, (3) was responsible for buying clothing, groceries, and personal items, (4) had completed school through the ninth grade and attended GED classes, and (5) was employed; thus, defendant did not show that he was mentally retarded. Therefore, defendant’s execution was not prohibited by the Eighth and the Fourteenth Amendment. Branch v. State, 882 So. 2d 36, 2004 Miss. LEXIS 586 (Miss. 2004), cert. denied, 544 U.S. 907, 125 S. Ct. 1595, 161 L. Ed. 2d 282, 2005 U.S. LEXIS 2289 (U.S. 2005).

In a capital murder case, the inmate asserted that he had been subjected to cruel and inhuman treatment in violation of his Fifth, Eighth, and Fourteenth Amendment rights because he had been kept in maximum confinement on Mississippi’s death row under conditions that included lock-down and isolation for at least 23 hours of the day and because he had been subjected to numerous execution dates during those 19-20 years; however, there was no law in the United States or Mississippi that supported the inmate’s claim and, thus, there were no grounds for post-conviction relief on that issue. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

The defendant failed to establish that the imposition of the death penalty violated his rights to due process and/or equal protection as he failed to offer any substantial proof that the death penalty was applied in a discriminatory manner in Mississippi or that he suffered discriminatory application of the law where his argument was based solely on insufficient statistical evidence and the bald assertion that had he been convicted of murdering an African-American instead of a white woman, he would have been sentenced to life imprisonment. Underwood v. State, 708 So. 2d 18, 1998 Miss. LEXIS 45 (Miss. 1998).

Paragraph (d) of subsection (5) of §99-19-101 does not violate the Eighth or Fourteenth Amendments to the United States Constitution.Evans v. State, 725 So. 2d 613, 1997 Miss. LEXIS 389 (Miss. 1997), cert. denied, 525 U.S. 1133, 119 S. Ct. 1097, 143 L. Ed. 2d 34, 1999 U.S. LEXIS 1510 (U.S. 1999).

Where sentence does not exceed statutory limits, it does not constitute cruel and inhuman treatment. Sanders v. State, 678 So. 2d 663, 1996 Miss. LEXIS 300 (Miss. 1996).

A 10-year sentence imposed upon a defendant pursuant to §63-11-30(4) for a DUI maiming conviction did not constitute cruel or unusual punishment, as it was within the statutory limits. Holloman v. State, 656 So. 2d 1134, 1995 Miss. LEXIS 270 (Miss. 1995).

The execution of a defendant who had been repeatedly diagnosed as a chronic paranoid schizophrenic did not constitute cruel and unusual punishment, since every expert who testified stated that one could be a paranoid schizophrenic and still be competent to be executed under §99-19-57. Billiot v. State, 655 So. 2d 1, 1995 Miss. LEXIS 88 (Miss. 1995), cert. denied, 516 U.S. 1095, 116 S. Ct. 818, 133 L. Ed. 2d 762, 1996 U.S. LEXIS 787 (U.S. 1996).

A defendant’s sentence was not disproportionate to the crime and did not amount to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution where he was convicted of possession of marijuana with intent to deliver or distribute and was sentenced to serve 20 years in the custody of the Mississippi Department of Corrections and ordered to pay a $250,000 fine, since the sentence was less than the maximum 30 years imprisonment and one million dollar fine authorized by §41-29-139(b)(1). Hart v. State, 639 So. 2d 1313, 1994 Miss. LEXIS 243 (Miss. 1994).

Mississippi procedure does not violate the constitutional prohibition against cruel and unusual punishment by vesting original jurisdiction in the circuit court when a person under 18 years of age is charged with a capital offense, rather than requiring a certification proceeding in youth court for transfer to the circuit court; Mississippi law allows a capital murder defendant who is under the age of 18 years to request a special hearing to consider his or her age, lack of prior offenses, likelihood of successful rehabilitation and other factors which favor sending the case to the youth court rather than continuing in circuit court. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

Mississippi procedure does not violate the constitutional prohibition against cruel and unusual punishment by its failure to explicitly state a minimum age that a person may be subject to the death penalty, since the age at which one may receive a death sentence for the crime of capital murder is implied; no one under 13 years of age may receive the death penalty because a child under the age of 13 cannot even be charged with a felony. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

A 60-year sentence for a conviction of sale of cocaine did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment, even though the defendant was convicted of selling only a small amount of cocaine, where the defendant was given a 30-year sentence pursuant to §41-29-139(b)(1) for his conviction and the sentence was then doubled pursuant to §41-29-147 because the defendant had previously been convicted of possession of marijuana, since the sentence was within the statutory guidelines and the legislature has called for stiff penalties for drug offenders as a matter of public policy. Campbell v. Campbell, 618 So. 2d 116, 1993 Miss. LEXIS 200 (Miss. 1993).

The imposition of a 25-year sentence for the crime of possession of 5.7 grams of cocaine with intent to distribute did not constitute a denial of the defendant’s constitutional rights on the ground that it was excessive and disproportionate where the defendant did not produce facts concerning sentences imposed on other criminals, the sentence was within the limits fixed by §41-29-139(b), and the sentence was not “grossly disproportionate” or “shockingly excessive.” Edwards v. State, 615 So. 2d 590, 1993 Miss. LEXIS 97 (Miss. 1993).

A 14-year sentence for forging and publishing a $40 check, a 2-year consecutive sentence for forging a $50 check, and 2 14-year sentences for forging and publishing checks in the amounts of $54 and $62, though severe, were not so “grossly disproportionate” as to violate the Eighth Amendment to the United States Constitution. Wallace v. State, 607 So. 2d 1184, 1992 Miss. LEXIS 586 (Miss. 1992).

The sentencing of a defendant under §99-19-81, the habitual offender statute, to the 20-year maximum term for aggravated assault as set forth in §97-3-7(2) was not disproportionate to the crime charged and did not violate the Eighth Amendment where the defendant was convicted of severely bludgeoning the victim with an iron pipe; the statutory maximum penalty for aggravated assault is not grossly out of line with the maximum terms allowed for the commission of other violent crimes in Mississippi, and the maximum penalties imposed for aggravated assault in neighboring states are not profoundly different from those in Mississippi. Fleming v. State, 604 So. 2d 280, 1992 Miss. LEXIS 382 (Miss. 1992).

In a capital murder prosecution, the prosecutor’s references to a second victim did not violate the Eighth and Fourteenth Amendments, since these references were necessary to tell the complete story of the crime where both victims were killed in the same mobile home with the same gun. Ladner v. State, 584 So. 2d 743, 1991 Miss. LEXIS 434 (Miss.), cert. denied, 502 U.S. 1015, 112 S. Ct. 663, 116 L. Ed. 2d 754, 1991 U.S. LEXIS 7261 (U.S. 1991).

In a murder prosecution involving a victim who died of smoke inhalation after receiving a blow to the head, the admission of facts concerning the murder of another victim who died from shotgun wounds did not violate the defendant’s rights under the Eighth Amendment to the federal constitution or the due process clauses of the Mississippi Constitution and the federal constitution, where the revelation that a second person was missing was necessary in putting together the pieces of the case, evidence that the investigating officers discovered 2 bodies in the trunk of the victim’s car was unavoidable, and the testimony of the other victim’s mother was necessary in that she was the only witness who could testify to seeing the defendant near the victim’s house, she was able to discuss what the victim was doing on the day he was killed, and she was able to give some important time frames. Mackbee v. State, 575 So. 2d 16, 1990 Miss. LEXIS 831 (Miss. 1990).

A sentence of 15 years imprisonment and a $9,000 fine for conviction of sale of cocaine was within the provisions of the statute and within the sound discretion of the trial judge, and did not constitute cruel and inhuman punishment. Bradley v. State, 562 So. 2d 1276, 1990 Miss. LEXIS 267 (Miss. 1990).

Section99-19-57 does not unconstitutionally restrict rights of defendants, as it is harmonious with the import of the Eighth Amendment prohibition against cruel and unusual punishment as interpreted in Ford v. Wainwright (1985, U.S.) 91 L. Ed. 2d 335, 106 S. Ct. 2595. Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335, 1986 U.S. LEXIS 64 (U.S. 1986).

The mandatory life sentence meted out to defendant, who was convicted of murder, did not violate the Eighth and Fourteenth Amendments, even though the sentencing statute did not provide for individual consideration of the offense and the offender, since no such procedure is required for a charge less than a capital charge. Taylor v. State, 452 So. 2d 441, 1984 Miss. LEXIS 1705 (Miss. 1984), but see May v. State, 524 So. 2d 957, 1988 Miss. LEXIS 191 (Miss. 1988).

142. –Sale of seized contraband, criminal practice and procedure.

Statutes providing for the seizure, forfeiture as contraband, and sale of firearms used for the illegal hunting of deer are fatally defective and unconstitutional as to an owner out of possession and innocent of knowledge of the illegal purpose for which the guns are used, in that they provide no notice, actual or constructive, to be given to such an owner. Kellogg v. Strickland, 191 So. 2d 536, 1966 Miss. LEXIS 1221 (Miss. 1966).

In an action to condemn and sell an automobile which had been seized while in possession of a third person, who had allegedly used it for transporting intoxicating liquor, the owner, in interposing his claim, was entitled to give a forthcoming bond and gain possession thereof pending a hearing, both in the circuit court and on appeal, as to his ownership thereof, and as to whether he had knowingly permitted it to be used for unlawful purposes in violation of Code 1942 §§ 2618 and 2619. Stringer v. State, 229 Miss. 412, 91 So. 2d 263, 1956 Miss. LEXIS 620 (Miss. 1956).

143. –Appellate review, criminal practice and procedure.

Defendant’s assertion that he was denied the right to appeal was misplaced where his brief had been filed with the appellate court and the issues raised were before the appellate court for consideration. Wynn v. State, 964 So. 2d 1196, 2007 Miss. App. LEXIS 592 (Miss. Ct. App. 2007).

Mississippi Supreme Court overrules Turner v. State, 818 So.2d 1186 (Miss. 2001) in part, rectifying the Fourteenth Amendment problems with the procedure governing appeals by indigent criminal defendants by implementing a five part procedure that requires, inter alia, compliance with Miss. R. App. P. 28(a)(1)-(4), (7); because a brief submitted by defense counsel merely stated that the appeal had no merit, rebriefing of a burglary case on appeal was required. Lindsey v. State, 939 So. 2d 743, 2005 Miss. LEXIS 178 (Miss. 2005).

Where states have incorporated appellate review as integral part of system for final adjudication of guilt or innocence, that review is raised to the plane of federal due process and equal protection. Harris v. State, 704 So. 2d 1286, 1997 Miss. LEXIS 47 (Miss.), cert. denied, 522 U.S. 827, 118 S. Ct. 90, 139 L. Ed. 2d 47, 1997 U.S. LEXIS 4857 (U.S. 1997).

It is not violation of due process to have appellate court perform reweighing or harmless error analysis when invalid aggravating circumstance is found to exist in capital case. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Issue of discriminatory application of death penalty to defendant is barred, absent showing of cause, because issue had never been raised prior to appeal to Supreme Court. Johnson v. State, 508 So. 2d 1126, 1987 Miss. LEXIS 2588 (Miss. 1987).

144. –Post-conviction proceedings, criminal practice and procedure.

Inmate’s due process rights were not violated when a district attorney sent a letter to a parole board objecting to parole because there was no breach of a plea agreement; the district attorney kept the promise of making a sentencing recommendation, and eligibility for parole did not affect a voluntariness analysis since there was no right to parole. Garlotte v. State, 915 So. 2d 460, 2005 Miss. App. LEXIS 280 (Miss. Ct. App.), cert. denied, 921 So. 2d 1279, 2005 Miss. LEXIS 769 (Miss. 2005).

Where there was a rescission of the possibility of probation caused by the prisoner’s failure in the house arrest program, the expectation of probation was not protected by liberty interest procedures. Moore v. State, 830 So. 2d 1274, 2002 Miss. App. LEXIS 640 (Miss. Ct. App. 2002).

Defendant failed to demonstrate that he was entitled to an opportunity for a hearing prior to the revocation of his parole based on his expectation of parole where the parole board initially voted to grant him parole but rescinded its initial decision approximately two months later. White v. Miss. State Parole Bd., 844 So. 2d 480, 2002 Miss. App. LEXIS 565 (Miss. Ct. App. 2002).

Evidentiary error in a state trial does not justify federal habeas corpus relief unless it is of such magnitude as to constitute a denial of fundamental fairness under the Due Process Clause. Lockett v. Puckett, 980 F. Supp. 201, 1997 U.S. Dist. LEXIS 16218 (S.D. Miss. 1997).

Claim of erroneous failure to supply capital jury with properly limiting definition of “especially heinous, atrocious or cruel” to accompany such aggravating factor is excepted from procedural bars that apply in post-conviction proceedings. (Per Banks, J., with three Justices concurring and one Justice concurring in result only.) Booker v. State, 699 So. 2d 132, 1997 Miss. LEXIS 375 (Miss. 1997).

Doctrines of res judicata and waiver barred capital murder defendant’s post-conviction claims that his alleged mental retardation prevented him from giving free and voluntary confession and from understanding his Miranda rights, where only issue raised on direct appeal concerning defendant’s confession was whether he was effectively prevented from making jury arguments about confession’s credibility, and it was clear that defendant’s low intelligence level was considered during suppression hearing in determining voluntariness of his confession. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

A post-conviction relief petitioner was not entitled to de novo review on appeal from a ruling that he was competent to be executed where the trial judge stated that he relied on §99-19-57(2)(b) and Ford v. Wainwright (1985, U.S.) 91 L. Ed. 2d 335, 106 S. Ct. 2595 in determining the petitioner’s competency, and that the petitioner failed to prove by a preponderance of the evidence that he was not competent to be executed; the petitioner was afforded due process and the trial judge’s ruling could only be reversed if it were against the overwhelming weight of the evidence or an abuse of discretion. Billiot v. State, 655 So. 2d 1, 1995 Miss. LEXIS 88 (Miss. 1995), cert. denied, 516 U.S. 1095, 116 S. Ct. 818, 133 L. Ed. 2d 762, 1996 U.S. LEXIS 787 (U.S. 1996).

A capital murder defendant’s objection to the admission of a blood sample obtained without a warrant was barred by the waiver of §99-39-21(1) where the defendant did not raise the issue on direct appeal, since the basis of the Fourth Amendment objection to the admission of illegally obtained evidence is well known, and the defendant had practically no chance of escaping conviction even without the blood sample evidence. Woodward v. State, 635 So. 2d 805, 1993 Miss. LEXIS 442 (Miss. 1993).

The Supreme Court’s lack of authority under the Mississippi Uniform Post-Conviction Collateral Relief Act (§99-39-1 et seq.) to appoint counsel, provide funds for expert assistance, or provide subpoena power did not violate a capital murder defendant’s due process and equal protection rights under the Fourteenth Amendment to the United States Constitution or the Supreme Court’s inherent powers to control judicial proceedings, since the State is not required to pay for a petitioner’s “fishing expeditions” at the collateral relief stage merely because the petitioner is indigent; thus, the defendant’s motion for appointment of counsel for his post-conviction procedures and the appropriation of $450.00 for psychiatric testing would be denied. Lockett v. State, 614 So. 2d 888, 1992 Miss. LEXIS 609 (Miss. 1992), cert. denied, 510 U.S. 1040, 114 S. Ct. 681, 126 L. Ed. 2d 649, 1994 U.S. LEXIS 59 (U.S. 1994).

The time limitations provisions of the Mississippi Uniform Post-Conviction Collateral Relief Act (§§99-39-1 et seq.) do not work an unconstitutional suspension of the writ of habeas corpus. Cole v. State, 608 So. 2d 1313, 1992 Miss. LEXIS 557 (Miss. 1992).

145. Speedy trial–In general.

Defendant’s constitutional and statutory rights to a speedy trial on drug charges were not violated. The 742-day delay between indictment and trial was presumptively prejudicial, but defendant failed to actively pursue his right to a speedy trial, and he was not actually prejudiced. Alexander v. State, 875 So. 2d 261, 2004 Miss. App. LEXIS 558 (Miss. Ct. App. 2004).

Defendant’s right to a speedy trial was not violated, as approximately 197 days had elapsed between defendant’s arrest and trial, a number well below the statutory limit of 270 days, and the greatest part of the “delay” between the commission of the felony and trial was directly and solely the consequence of defendant’s flight; therefore, defendant’s counsel was not ineffective for failing to file a motion to dismiss on speedy trial grounds. Jackson v. State, 864 So. 2d 1047, 2004 Miss. App. LEXIS 66 (Miss. Ct. App. 2004).

Defendant’s right to speedy trial is guaranteed by Sixth and Fourteenth Amendments to the United States Constitution as well as by Article 3, section 26 of the Mississippi Constitution. Skaggs v. State, 676 So. 2d 897, 1996 Miss. LEXIS 317 (Miss. 1996).

Sole remedy for denial of defendant’s right to speedy trial is dismissal of charges against him. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

In determining whether constitutional right to speedy trial has been denied, delay is triggering mechanism and must be presumptively prejudicial or analysis is halted. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

Balance is struck in favor of rejecting defendant’s speedy trial claim if delay is neither intentional nor egregiously protracted, and where there is complete absence of actual prejudice. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

Where, in a murder prosecution, three trials of the defendant were initiated within two years of the crime, one ending in a mistrial and two resulting in convictions, but both convictions were reversed for improper instructions or improper argument by the prosecutor, and the defendant alleged harassment by the state, the defendant would not be released and the prosecution terminated, the sequence of events in the proceedings not constituting a denial of the defendant’s rights to due process and a speedy trial. Smith v. State, 220 So. 2d 313, 1969 Miss. LEXIS 1453 (Miss. 1969).

146. –Statutory rights, speedy trial.

Constitutional right to speedy trial exists separately from the statutory right. Simmons v. State, 678 So. 2d 683, 1996 Miss. LEXIS 285 (Miss. 1996).

Although long delays between the time of arrest and arraignment have the potential to violate the defendant’s constitutional right to a speedy trial even if the 270 day mandate of §99-17-1 has been met, the State’s compliance with § 99-l7-l would be viewed as significant when determining whether the defendant’s constitutional right to a speedy trial had been violated. Spencer v. State, 592 So. 2d 1382, 1991 Miss. LEXIS 965 (Miss. 1991).

A defendant’s statutory right to a speedy trial was not violated, even though 338 days elapsed between the defendant’s original arraignment and the first day of his trial, where the defendant was granted a 63-day continuance during that time, and the case was continued for 37 days due to a congested docket. Additionally, the defendant’s constitutional right to a speedy trial was not violated, even though 456 days elapsed between the time the defendant was arrested and the first day of his trial, where a significant part of the delay was attributable to the defendant, the balance of the delay was attributable to mere negligence and court congestion, and the defendant failed to assert his right to a speedy trial until the day the trial was scheduled. Adams v. State, 583 So. 2d 165, 1991 Miss. LEXIS 384 (Miss. 1991).

A defendant’s statutory right to a speedy trial under §99-17-1 was not violated, even though his trial occurred 460 days after his arrest, where the trial occurred only one day after his arraignment. Additionally, the defendant’s constitutional right to a speedy trial was not violated where the defendant moved for 2 continuances during the period between the indictment and the trial which resulted in 181 days of time lost, much of the remaining delay could be attributed to 5 changes in the defendant’s attorney, the delay was for good cause to allow his counsel sufficient time to prepare for trial, there were no deliberate attempts by the State to cause a delay to hamper the defendant’s ability to prepare a defense, and there was no showing of prejudice to the defendant. Wiley v. State, 582 So. 2d 1008, 1991 Miss. LEXIS 364 (Miss. 1991).

For constitutional purposes, the right to a speedy trial attaches and time begins to run with arrest. The statutory right to a speedy trial set forth in §99-17-1 attaches with arraignment; calculation of statutory time requires exclusion of the date of arraignment and inclusion of the date of trial and weekends, unless the last day of the 270-day period falls on Sunday. Any delays in prosecution attributable to a defendant under either the constitutional or statutory scheme tolls the running of time. Any continuances for “good cause” will toll the running of time unless “the record is silent regarding the reason for delay,” in which case “the clock ticks against the State because the State bears the risk of non-persuasion on the good cause issue.” The statutory 270-day rule is satisfied once the defendant is brought to trial, even if that trial results in a mistrial. Handley v. State, 574 So. 2d 671, 1990 Miss. LEXIS 857 (Miss. 1990), op. withdrawn, sub. op., 1991 Miss. LEXIS 235 (Miss. Apr. 16, 1991).

147. –Time right attaches, speedy trial.

Defendant’s right to speedy trial attached at time of his arrest. Skaggs v. State, 676 So. 2d 897, 1996 Miss. LEXIS 317 (Miss. 1996); Simmons v. State, 678 So. 2d 683, 1996 Miss. LEXIS 285 (Miss. 1996); Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

Constitutional right to speedy trial attaches when person is effectively accused of a crime. Skaggs v. State, 676 So. 2d 897, 1996 Miss. LEXIS 317 (Miss. 1996).

Constitutional right to speedy trial attaches at time of accused’s arrest, indictment, or information. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

In determining whether defendant’s claim of constitutional speedy trial violation is justified, date of defendant’s arrest is date right to speedy trial attaches. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

148. –Assertion of right, speedy trial.

Defendant has some responsibility to assert right to speedy trial, although state has duty to ensure that defendant receives speedy trial. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Defendant’s failure to ask for speedy trial is not dispositive in speedy trial analysis, but must be weighed against other factors. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Although defendant is not required to demand speedy trial, his assertion of such right will weigh more heavily in his favor when determining whether his constitutional right to speedy trial has been violated. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

Late filing by defendant asserting his right to speedy trial is not fatal to defendant’s claim of violation of constitutional right to speedy trial. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

Failure by defendant to assert his constitutional right to speedy trial does not constitute waiver of such right. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

Assertion of constitutional right to speedy trial need not be in writing. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

A defendant was denied his constitutional right to a speedy trial where 610 days elapsed from the date of indictment to the date of trial, even though the defendant failed to assert his right to a speedy trial. Although a defendant may have some responsibility to assert his or her speedy trial claim, the primary burden is on the courts and the prosecutors to assure that cases are brought to trial. Thus, the defendant’s failure to “consistently badger” the prosecution to proceed with his trial did not eliminate his claim that he was denied a speedy trial. Flores v. State, 574 So. 2d 1314, 1990 Miss. LEXIS 851 (Miss. 1990).

149. –Duty of state, speedy trial.

While defendant may have some responsibility to assert speedy trial claim, primary burden is on courts and prosecutors to assure that they bring cases to trial. Simmons v. State, 678 So. 2d 683, 1996 Miss. LEXIS 285 (Miss. 1996).

State bears burden of providing defendant with speedy trial; therefore, delay that is not attributable to defendant counts against the state, unless state can show good cause for the delay. Skaggs v. State, 676 So. 2d 897, 1996 Miss. LEXIS 317 (Miss. 1996).

State bears burden of bringing accused to trial in speedy fashion. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

150. –Tolling of time, speedy trial.

Trial court did not err in denying petitioner’s motion for post-conviction relief where he failed to prove his assertions that he was denied his right to a speedy trial and that he received ineffective assistance from counsel; there was no evidence in the record of the starting date of petitioner’s incarceration, but the record showed that 89 days elapsed between indictment and trial which the appellate court found was quite reasonable. Hill v. State, 827 So. 2d 743, 2002 Miss. App. LEXIS 532 (Miss. Ct. App. 2002).

Under speedy trial analysis, any delays which are attributable to accused toll the running of the clock; however, time of delay is assessed against state if state fails to show good cause for such delay. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

Constitutional speedy trial clock is tolled for period of time attributable to delay caused by defendant; period of delay attributable to defendant is subtracted from total days of delay. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

In determining whether a defendant has been denied his or her right to a speedy trial, a continuance granted to the defendant is counted differently from a continuance granted to the State. Any delay as a result of action by the State without “good cause” causes the time to be counted against the State. A delay caused by the actions of the defendant, such as a continuance, tolls the running of the time period for that length of time, and this time is subtracted from the total amount of the delay. Wiley v. State, 582 So. 2d 1008, 1991 Miss. LEXIS 364 (Miss. 1991).

151. –Factors considered, speedy trial.

Defendant was not denied his right to a speedy trial where a total of 810 days elapsed from the date of defendant’s arrest to the date on which the trial began, because defendant requested continuances prior to moving for a speedy trial, the State was granted continuances for DNA analyses and to find a key witness, after DNA tests were ordered, there were several motions filed by defendant and the State, and thus good cause was shown related to matters beyond the control of the State. Flora v. State, 925 So. 2d 797, 2006 Miss. LEXIS 49 (Miss.), cert. denied, 549 U.S. 912, 127 S. Ct. 253, 166 L. Ed. 2d 197, 2006 U.S. LEXIS 6127 (U.S. 2006).

Defendant’s embezzlement conviction was proper where his speedy trial rights were not violated because, by falsely agreeing to repay the owner, defendant avoided pursuing an indictment against him, and thus, the delay until August 2001 was a neutral factor Further, defendant did not diligently pursue a speedy trial. Crimm v. State, 888 So. 2d 1178, 2004 Miss. App. LEXIS 933 (Miss. Ct. App. 2004).

Under balancing test to determine whether defendant’s constitutional right to speedy trial has been violated, no one factor alone is dispositive, and the factors must be considered individually, assessed both objectively and dispassionately, then weighed and balanced together. Simmons v. State, 678 So. 2d 683, 1996 Miss. LEXIS 285 (Miss. 1996).

Under case law, four factors must be considered before one can determine if right to speedy trial has been denied: length of delay; reason for delay; defendant’s assertion of his right to speedy trial; and prejudice resulting to defendant. Sanders v. State, 678 So. 2d 663, 1996 Miss. LEXIS 300 (Miss. 1996).

Factors to be examined in determining whether constitutional right to speedy trial has been violated include length of delay, reason for delay, assertion of right to speedy trial, and prejudice to defendant from the delay; no single factor is dispositive. Skaggs v. State, 676 So. 2d 897, 1996 Miss. LEXIS 317 (Miss. 1996).

Factors to be considered in determining whether defendant’s right to speedy trial was violated are length of delay, reason for delay, defendant’s assertion of right to speedy trial, and prejudice to defendant resulting from delay. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Analysis of whether defendant was deprived of right to speedy trial must turn on facts of particular case, quality of evidence available on each factor, and, in absence of evidence, identification of party with risk of non-persuasion; no sole factor is dispositive. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Bad motive on part of prosecution significantly affects balancing test in speedy trial analysis. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Once constitutional right to speedy trial has attached, Supreme Court, in determining whether right has been denied, must examine length of delay, reason for delay, defendant’s assertion of right to speedy trial, and prejudice resulting to defendant from delay, in light of all circumstances, including conduct of prosecution and accused. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

Court must balance four factors in determining whether defendant’s claim of constitutional speedy trial violation is justified: length of delay, reason for delay; whether defendant has timely asserted right to speedy trial and whether defendant has been prejudiced by delay. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

In determining whether defendant’s claim of constitutional speedy trial violation is justified, no single factor is dispositive, but court must consider totality of circumstances, including any additional relevant circumstances beyond 4 enumerated factors, in making that determination. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

For purpose of constitutional speedy trial analysis, delay which is presumptively prejudicial to defendant will not require reversal in and of itself but will require that remaining factors in determining whether claim of constitutional violation is justified be examined closely. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

For purpose of constitutional speedy trial analysis, as period of delay between defendant’s arrest and trial increases, importance of delay factor also increases. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

For purpose of constitutional speedy trial analysis, where delay between arrest and trial is not long enough to be considered presumptively prejudicial, court does not need to examine remaining factors used to determine whether constitutional speedy trial violation has occurred. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

Delay of 409 days between arrest of defendant on charge of capital rape and commencement of trial was presumptively prejudicial, and triggered examination of remaining factors to determine whether violation of defendant’s constitutional right to speedy trial had occurred. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

A defendant’s constitutional right to a speedy trial was not violated, even though the length of the delay was 281 days and was therefore presumptively prejudicial, where the case involved 9 counts of burglary and one count of conspiracy and was therefore a “complex, serious” case rather than an “ordinary street crime,” the delay appeared to be reasonable and not unduly lengthy, and the defendant failed to substantiate his claim of prejudice resulting from the delay. Jackson v. State, 614 So. 2d 965, 1993 Miss. LEXIS 75 (Miss. 1993).

152. –Time of application for speedy trial.

Defendant was arrested on July 5, 2000, indicted one year later, and his trial commenced on April 2, 2002. For purposes of the pre-indictment delay of 366 days, there was nothing in the record or in defendant’s brief to indicate (1) that defendant made any effort to request an attorney, seek bail, or demand a speedy trial prior to June 2001; (2) that the State delayed bringing defendant to trial for any prejudicial or improper reason; or (3) any prejudice to defendant by the delay; thus, defendant’s right to a speedy trial was not violated by the pre-indictment delay. Young v. State, 891 So. 2d 813, 2005 Miss. LEXIS 40 (Miss. 2005).

Defendant’s constitutional right to speedy trial was not violated, although 21-month delay between arrest and trial was presumptively prejudicial, where significant portion of delay was due to defendant’s request for psychological evaluation, defendant did not bring motion to dismiss on speedy trial grounds for over a year, and defendant did not demonstrate any prejudice. Simmons v. State, 678 So. 2d 683, 1996 Miss. LEXIS 285 (Miss. 1996).

In speedy trial analysis, defendant’s failure to bring denial of speedy trial issue up until trial, as well as defendant’s motion for continuance, which could be considered as contrary to any concerns about speedy trial, weighed in favor of state. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

Although accused was presumptively prejudiced by 280-day delay before trial, he was not denied right to speedy trial, since he failed to ask for speedy trial until trial, he moved for continuance before trial, and he failed to show prejudice from the delay. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

Filing of motion to dismiss for denial of defendant’s right to speedy trial 3 days prior to trial date was not fatal to defendant’s claim, but weighed less heavily than an earlier assertion of his right would have done in analysis of whether his constitutional right to speedy trial was violated. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

A defendant was not denied his right to a speedy trial, even though 266 days elapsed from the time of his arrest to the time of his first trial which ended in a mistrial, 305 days elapsed from his arrest to his second trial which resulted in a conviction, the delay was attributable to the State, and the defendant filed a motion for a speedy trial 15 days after indictment, where he did not file a motion to dismiss for lack of a speedy trial until the day before the second trial, and he failed to show any actual prejudice. Rhymes v. State, 638 So. 2d 1270, 1994 Miss. LEXIS 321 (Miss. 1994).

153. –Prejudice to defendant, speedy trial.

Time elapsing from the date of defendant’s arrest to the beginning day of his trial was more than 31 months, and was presumptively prejudicial under the Barker factor. However, he had not asserted his right to a speedy trial and on appeal, he did not assert that his defense suffered any prejudice because of his lengthy incarceration; he did not contend that witnesses were unavailable because of the delay or that evidence had been lost or destroyed or that his defense against the charges was affected in any way by the delay, and because no actual prejudice was shown, his constitutional right to a speedy trial was not violated. Guice v. State, 952 So. 2d 187, 2006 Miss. App. LEXIS 72 (Miss. Ct. App. 2006), aff'd, 952 So. 2d 129, 2007 Miss. LEXIS 9 (Miss. 2007).

Perfecting of defendant’s appeal took an inordinately long time; however, defendant did not satisfy the most important factor in the appellate delay analysis, the requisite showing of prejudice, because (1) defendant’s appeal was meritless; (2) he did not show that any anxiety and concern during the pendency of his appeal was of such a degree that it would distinguish his case from that of any other prisoner awaiting the outcome of an appeal; and (3) the delay in perfecting defendant’s appeal did not impair his grounds for appeal or impair his defense in the event of a retrial. Thus, the 12-year delay in processing his appeal did not result in a violation of his due process rights. Jackson v. State, 910 So. 2d 658, 2005 Miss. App. LEXIS 170 (Miss. Ct. App.), cert. denied, 904 So. 2d 184, 2005 Miss. LEXIS 402 (Miss. 2005).

Vague assertions of lost witnesses, faded memories, or misplaced documents are insufficient to establish due process violation from preindictment delay. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Five-year period from defendant’s mistrial on murder charges to entry of nolle prosequi on indictment did not violate defendant’s due process rights, as formal accusation ended with entry of nolle prosequi. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Presumptive prejudice, requiring further inquiry into remaining factors for determining whether speedy trial violation has occurred, arises where there has been delay of eight months or more before trial. Skaggs v. State, 676 So. 2d 897, 1996 Miss. LEXIS 317 (Miss. 1996).

Delay may prejudice defendant, for speedy trial purposes, in two ways; delay may actually impair defendant’s ability to defend himself, and defendant may suffer because of restraints to his liberty. Skaggs v. State, 676 So. 2d 897, 1996 Miss. LEXIS 317 (Miss. 1996).

Incarceration before trial is not alone enough prejudice to warrant reversal of conviction on ground that defendant was denied speedy trial. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

In speedy trial analysis, defendant was not prejudiced by his inability to talk with potential alibi witnesses, due to his incarceration prior to trial; record mentioned names of no potential alibi witnesses who had suffered memory loss or who could not be found, and defense counsel could have traced leads at defendant’s direction. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

In speedy trial analysis, delay of 8 months is presumed prejudicial. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Delay of 280 days from time defendant’s constitutional right to speedy trial attached to time trial began was presumptively prejudicial for purposes of speedy trial analysis. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

For speedy trial analysis, prejudice to accused encompasses both actual prejudice in defending case and prejudice from inordinate delay. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

Accused may suffer prejudice due to delay, a factor in speedy trial analysis, in form of oppressive pretrial incarceration, anxiety and concern, and impairment of defenses. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

Without evidence of absent witness’ departure date or expected testimony, accused could not show prejudice from delay in commencement of trial, a factor in speedy trial analysis; moreover, even if accused could have shown prejudice due to absent witness, he would have been barred from doing so, as he raised prejudice from absent witness for first time on appeal. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

In determining whether violation of defendant’s constitutional right to speedy trial has occurred, defendant may be prejudiced by fact that he has been detained before trial, that he has suffered anxiety as result of delay, or that his defense has been impaired by delay. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

In determining whether violation of defendant’s constitutional right to speedy trial has occurred, defendant suffers no prejudice from detention when he is out on bail. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

In determining whether violation of defendant’s constitutional right to speedy trial has occurred, where incarceration is only ground raised by defendant as basis for prejudice, reversal generally will not be required. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

In determining whether defendant has been prejudiced by delay between arrest and trial such that violation of his constitutional right to speedy trial is implicated, impairment of defendant’s defense may occur as result of witnesses dying or disappearing or of loss of memory on part of witnesses. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

In determining whether defendant has been prejudiced by delay between arrest and trial such that violation of his constitutional right to speedy trial is implicated, anxiety on part of defendant is presumed from mere fact of delay even where defendant does not complain that he has suffered anxiety. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

A defendant’s right to a speedy trial was not violated, even though 6 years elapsed between the date of indictment and the actual determination of the defendant’s habitual offender status, since habitual offender status is not a crime in and of itself, but is merely a status which enhances the sentence imposed for the conviction of an offense, and, therefore, the determination of habitual offender status is not an “offense” to which the right to a speedy trial would apply. Gray v. State, 605 So. 2d 791, 1992 Miss. LEXIS 481 (Miss. 1992).

In a constitutional speedy trial analysis, prejudice to the defendant may take several forms: (1) delay may prejudice the outcome of the defendant’s case; (2) prejudice may take the form of harm to the defendant’s personal interests, such as the debilitating effect of delay on the defendant’s financial, societal, and emotional circumstances; and (3) lengthy pretrial incarceration may be unnecessarily oppressive and may pose societal disadvantages, though a defendant’s assertion of prejudice attributable solely to incarceration, with no other harm, typically is not sufficient to warrant reversal. Ross v. State, 605 So. 2d 17, 1992 Miss. LEXIS 419 (Miss. 1992).

A 6-month delay between a mistrial and a retrial was not “presumptively prejudicial,” and therefore the defendant’s constitutional right to a speedy trial was not violated by the delay. Handley v. State, 574 So. 2d 671, 1990 Miss. LEXIS 857 (Miss. 1990), op. withdrawn, sub. op., 1991 Miss. LEXIS 235 (Miss. Apr. 16, 1991).

154. –Delay attributable primarily or solely to defendant, speedy trial.

Where defendant was tried 538 days after arraignment, and 264 days of the delay could be attributed against the State, there was no statutory violation under the guidelines set forth in Miss. Code Ann. §99-17-1. Further, the delay could be attributed to continuances requested upon the motion of defendant’s attorneys, substitution of counsel, plea negotiations, ongoing discovery, and potentially the trial date being lost due to a crowded docket, and applying the balancing test to the four factors listed in Barker, and the conduct of the State and defendant, defendant’s constitutional right to a speedy trial was not denied. Summers v. State, 914 So. 2d 245, 2005 Miss. App. LEXIS 476 (Miss. Ct. App. 2005).

Defendant was arrested on July 5, 2000, indicted one year later, and his trial commenced on April 2, 2002; because defendant was released on bond shortly after his indictment there was no oppressive pretrial detention after he was indicted. Further, at least part of the delay to trial, following his indictment, was attributable to the two continuances granted at defendant’s request; thus, there was no merit to defendant’s denial of a speedy trial claim as to the period of time following his indictment. Young v. State, 891 So. 2d 813, 2005 Miss. LEXIS 40 (Miss. 2005).

Delay caused by actions of defendant, such as continuance, tolls running of speedy trial period for that length of time, and is subtracted from total amount of delay. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Continuances requested by defendant, including continuance to allow defense counsel additional time for discovery after defendant changed attorneys in immediate days before trial for no compelling reason, would be charged to defendant in speedy trial analysis. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Delays caused by 2 changes in defense counsel would not be charged against state in speedy trial analysis. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Continuances requested by defendant, including continuance to allow defense counsel additional time for discovery after defendant changed attorneys in immediate days before trial for no compelling reason, would be charged to defendant in speedy trial analysis. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Defendant was not denied right to speedy trial by delay of 1,027 days between arrest and start of trial; delays were caused by plea bargaining, 3 continuances, 2 changes of defense counsel, motion for change of venue, and requests by defense for additional discovery and trial preparation. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

In determining whether violation of defendant’s constitutional right to speedy trial has occurred, delay between arrest and trial caused by withdrawal of defendant’s attorney which entails allowing new attorney reasonable time to become familiar with case and prepare for trial cannot be weighed against state because it is beyond state’s control. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

In determining whether violation of defendant’s constitutional right to speedy trial has occurred, delay due to changes in defendant’s attorneys and defendant’s reneging on plea agreement weigh against defendant. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

A defendant’s constitutional right to a speedy trial was not violated, even though the length of the delay was 636 days, where the bulk of the delay was caused by the defendant’s frequent changes of counsel and his reneging on a plea agreement, the multitude of pretrial motions filed on the defendant’s behalf further contributed to the delay, the defendant made no assertion of his right other than a motion to dismiss the charges after the fact, and the defendant could not show tangible prejudice but relied only on the anxiety caused by incarceration and pending charges. Wagner v. State, 624 So. 2d 60, 1993 Miss. LEXIS 341 (Miss. 1993).

A defendant was not denied his statutory or constitutional rights to a speedy trial, even though he was arrested on February 13, 1989, arraigned May 5, 1989, and his trial began March 5, 1990, where the defendant filed 15 motions before he was brought to trial which substantially contributed to the delay, the record supported the State’s position that it could not try the case until the issues of change of venue and admissibility of forensic DNA analysis had been resolved, and the defendant did not contend that the delay either diminished his defense or strengthened the State’s evidence, but stated only that he suffered “a great deal of anxiety.” Polk v. State, 612 So. 2d 381, 1992 Miss. LEXIS 820 (Miss. 1992).

A defendant’s constitutional and statutory rights to a speedy trial were not violated, even though the delay between the defendant’s arrest and trial was 378 days and the delay between arraignment and trial was 370 days, where only one of the delays–a continuance requested by the State solely for its prosecutorial tactical advantage–was attributable to the State, and, after calculating the delays caused by the defendant, he came to trial 164 days after his arrest and 156 days after his waiver of arraignment. Ross v. State, 605 So. 2d 17, 1992 Miss. LEXIS 419 (Miss. 1992).

Any defendant-prompted delay, regardless of merit, tolls the constitutional speedy trial clock; the speedy trial remedy is meant to address the harm visited on the defendant because of the State’s delay in bringing the defendant to trial. Ross v. State, 605 So. 2d 17, 1992 Miss. LEXIS 419 (Miss. 1992).

Defendants did not suffer a deprivation of the right to a speedy trial, even though there was a 414-day delay between the date the defendants were arrested and the date of their trial, where a substantial part of the reason for the delay was that the defendants took no steps to secure counsel, and the delay did not operate to their substantial prejudice since there was no evidence of prejudice at trial and the defendants’ arrest resulted in their parole revocation and immediate incarceration to complete prior sentences, so that the defendants’ lives were not “put on hold” solely as a result of the delay. Jaco v. State, 574 So. 2d 625, 1990 Miss. LEXIS 823 (Miss. 1990).

155. –Delay attributable primarily or solely to state, speedy trial.

Any delay as result of action by state, without good cause, causes time to be counted against state in speedy trial analysis. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Delay of murder trial at request of state until after defendant’s aggravated assault trial would be charged to state in speedy trial analysis. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

A defendant was denied his constitutional right to a speedy trial where 2 1/2 years elapsed between the time of the defendant’s arrest and his trial, the defendant caused 11 months of the delay while the State caused one year and 9 months of the delay without good cause, the defendant asserted his right to a speedy trial one year prior to his trial, and the defendant was prejudiced as a result of the delay in bringing him to trial as the only witness alleged to have connected the defendant to the crime died before the defendant was brought to trial and another witness admitted that her memory was not as good at the time of trial as it had been previously. Jenkins v. State, 607 So. 2d 1137, 1992 Miss. LEXIS 536 (Miss. 1992).

155.5. –Delay attributable neither to state nor defendant, speedy trial.

Constitutional right to a speedy trial was not denied, although a rape trial commenced more than two years after defendant’s arrest, because there was good cause for the delay and no showing of actual prejudice. Watson v. State, 848 So. 2d 203, 2003 Miss. App. LEXIS 562 (Miss. Ct. App. 2003), aff'd, 2003 Miss. App. LEXIS 623 (Miss. Ct. App. June 17, 2003).

Over four years expired between defendant’s arrest and trial for murder, but defendant was out on bond after the first year, made no demand for a speedy trial, failed to show any prejudice to the defense, or that the State intentionally delayed the investigation in its search for critical eyewitnesses and other evidence. Defendant’s right to a speedy trial was not violated under the Sixth and Fourteenth Amendments to the United States Constitution, or Miss. Const. art. III, § 26. Moore v. State, 837 So. 2d 794, 2003 Miss. App. LEXIS 81 (Miss. Ct. App. 2003).

A capital murder defendant was not denied his constitutional right to a speedy trial, even though 434 days elapsed between his arrest and the trial, and the defendant asserted his right to a speedy trial at his initial appearance and by pretrial motions, where some of the delay was due to the defense counsels’ conflicts, the judge to whom the case had been assigned for 7 months was murdered, there was a complete “turn-over” in the district attorney’s office, there was no showing that the State made a willful effort to delay the trial or that it was negligent in doing so, and the delay did not cause any prejudice to the defense. Thorson v. State, 653 So. 2d 876, 1994 Miss. LEXIS 600 (Miss. 1994).

A defendant was not denied his constitutional right to a speedy trial, even though 449 days elapsed between his arrest and the date of the hearing adjudicating his motion to dismiss the charges, and there was a 6 1/2 month delay between arrest and indictment which was attributed to the crime lab and court congestion, where a 5-month delay was attributable to the defendant and his change of counsel, 8 months of the delay occurred during a period in which there was no demand for a speedy trial and in which the defendant was held on other unrelated charges, and the defendant’s testimony did not mention the existence of prejudice. State v. Magnusen, 646 So. 2d 1275, 1994 Miss. LEXIS 552 (Miss. 1994).

A defendant was not denied his right to a speedy trial, even though there was a 23-month delay from the date of arrest to the date of trial and a portion of the delay was attributable to official neglect with respect to completion and delivery of a lab report, where the defendant was indicted within 15 months of his arrest, and he failed to show any actual prejudice as a result of the delay. Perry v. State, 637 So. 2d 871, 1994 Miss. LEXIS 283 (Miss. 1994).

A defendant was not denied his constitutional right to a speedy trial, even though 475 days elapsed between his arrest and his trial, where extradition of the defendant caused 9 days of the delay, a substantial portion of the delay (119 days) was due to a continuance granted to the defendant on the date the case was originally set for trial, approximately 12 months of the delay was not attributable to either the defendant or his attorney, the defendant did not assert his right to a speedy trial until after he had been granted the continuance on the date originally scheduled for trial, and the defendant’s claim that he was prejudiced by the delay because he lost touch with certain alibi witnesses was diminished by the facts that minimum effort was made by the defendant or his investigator to locate or contact witnesses who had moved, the lost witnesses would have been available to testify on the date originally set for trial, and no mention of this matter was made in the defendant’s motion for a new trial filed a week after the verdict was rendered. Noe v. State, 616 So. 2d 298, 1993 Miss. LEXIS 116 (Miss. 1993).

156. –Crowded dockets, speedy trial.

Defendant’s right to speedy trial was not violated by 554-day delay between arrest and trial, even though delay was due to crowded docket and weighed against state, where defendant suffered no prejudice as a result of the delay and defendant was out on bond pending trial. Skaggs v. State, 676 So. 2d 897, 1996 Miss. LEXIS 317 (Miss. 1996).

Delays due to crowded court docket do not weigh as heavily against state, for speedy trial purposes, as do deliberate or purposeful delays. Skaggs v. State, 676 So. 2d 897, 1996 Miss. LEXIS 317 (Miss. 1996).

A defendant was not denied his constitutional right to a speedy trial, even though 574 days elapsed from the date of his arrest to the date of trial and he properly asserted his right to a speedy trial, where the delay was caused by an overcrowded trial docket and the county’s system of assigning each case to a particular judge as that case proceeded up to and through the trial process, and the defendant demonstrated no actual prejudice. McGhee v. State, 657 So. 2d 799, 1995 Miss. LEXIS 329 (Miss. 1995).

An aggravated assault defendant was not denied his constitutional right to a speedy trial, even though there was a delay of more than 25 months between the date of his arrest and his trial and the State blamed part of the delay on an overcrowded docket which weighed against the State, where the defendant requested a continuance of an earlier trial date, the victim had to undergo several surgical treatments and it was several months before he was physically able to proceed with the case, the defendant did not raise the speedy trial issue until more than one and 1/2 years after his arrest, and the defendant failed to show any material prejudice as a result of the delay. Stogner v. State, 627 So. 2d 815, 1993 Miss. LEXIS 531 (Miss. 1993).

A defendant was not denied his constitutional right to a speedy trial, even though the length of the delay between the defendant’s arrest and his trial was 334 days and the defendant asserted his right to a speedy trial in a timely manner, where most of the delay was attributable to ordinary lag from crowded dockets and court terms, and the defendant did not even attempt to show any particular prejudice resulting from the delay but merely maintained that he had increased anxiety due to the delay. Hurns v. State, 616 So. 2d 313, 1993 Miss. LEXIS 121 (Miss. 1993).

A defendant’s right to a speedy trial was violated where 301 days elapsed between the day of arraignment and the day of the trial, and the case was continued twice by court order stating that “all cases not otherwise disposed of are hereby ordered continued to the next regular term of court.” Although docket congestion is “good cause” for delay in certain circumstances, the State never sought a continuance for this or any other reason, but instead relied on the “mass continuances” routinely made at the end of each court term. Yarber v. State, 573 So. 2d 727, 1990 Miss. LEXIS 786 (Miss. 1990).

157. –Plea negotiations, speedy trial.

Plea negotiations that lasted 360 days would not be counted against state in speedy trial analysis; defendant participated or at least acquiesced in negotiations and received some benefit from them. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

For speedy trial analysis, delays from attempts to negotiate plea agreement were not attributable to accused, since there was no evidence in record as to whether defendant acquiesced to these plea negotiations. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

In determining whether violation of defendant’s constitutional right to speedy trial has occurred, delays caused by plea negotiations are for good cause and have effect of tolling speedy trial clock, although such negotiations should be substantiated by documentation. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

158. –Reindictment, speedy trial.

Twenty-six-year delay between second mistrial on defendant’s murder charge and return of second indictment did not violate defendant’s due process rights, as there was no statute of limitations on murder. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Twenty-one-year delay between entry of nolle prosequi on murder indictment and reindictment or same murder did not violate defendant’s due process rights, though witnesses for both state and defense had died during period between trials; testimony from previous trials was available and was read to jury, defendant did not put into record any facts he could have proved by deceased witnesses that did not go to jury through their prior testimony, and state did not intentionally delay prosecution to gain tactical advantage. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Prosecution may not circumvent accused’s demand for speedy trial by seeking new indictment for same offense and then proceeding upon new indictment. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Delay in trial caused when state re-indicted defendant twice in good faith weighed less heavily against state in speedy trial analysis than if state had acted in bad faith. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

159. –Presumptions and burden of proof, speedy trial.

In order for defendant to prove that preindictment delay violated his due process rights, defendant must show that (1) preindictment delay caused actual prejudice to him, and (2) such delay was intentional device used by government to obtain tactical advantage over defendant. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Accused is not required to put forth affirmative showing of prejudice to prove his right to speedy trial was violated; nevertheless absence of prejudice weighs against finding of violation. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

Where a defendant contended that his statutory and constitutional rights to a speedy trial were violated because he was tried more than 600 days after his arrest and arraignment, the State bore the burden of positively demonstrating that the backlog of drug cases in the court system and the state crime lab, which were alleged to be the reasons for the delay, actually caused the delay in that particular case. McGee v. State, 608 So. 2d 1129, 1992 Miss. LEXIS 204 (Miss.), modified, (Miss. 1992).

160. –Sufficiency of evidence, speedy trial.

The defendant’s right to a speedy trial was not violated, notwithstanding a 731 day delay between arrest and trial where 515 days of delay were attributable to the defendant’s continuances and changing of attorneys, the defendant did not assert his right until very late in the process and the defense asked for and was granted two continuances after he attempted to assert his right, and the only prejudicial effect alleged caused by the delay was the defendant’s incarceration for nearly two years without a trial. Sharp v. State, 786 So. 2d 372, 2001 Miss. LEXIS 141 (Miss. 2001).

The defendant was not denied his right to a speedy trial notwithstanding that more than eight months elapsed between his arrest and trial, where (1) the major portion of the delay was attributable to the fact that the first indictment against the defendant was dismissed because a witness recanted a statement that would have shown the defendant’s guilt, (2) the defendant did not assert his right to a speedy trial until one week before trial, and (3) the only prejudice asserted by the defendant was the anxiety he suffered while incarcerated and awaiting trial. Estes v. State, 782 So. 2d 1244, 2000 Miss. App. LEXIS 491 (Miss. Ct. App. 2000).

The defendant’s right to a speedy trial was not violated notwithstanding a 14-month delay between his arrest and trial, as (1) the greater part of the delay was caused by the defendant through his numerous continuances and changing of legal counsel, (2) although the defendant filed a motion for a speedy trial about four months before his trial, in the interim he filed three motions for continuance and his motion for speedy trial was not heard by the trial court until the day of trial, and (3) the defendant failed to show prejudice caused by the delay. Bell v. State, 769 So. 2d 247, 2000 Miss. App. LEXIS 464 (Miss. Ct. App. 2000).

The defendant was denied his right to a speedy trial, notwithstanding a total delay of 22 months where (1) the bulk of the delay rested with the defendant through continuously swapping legal counsel and signing continuances, (2) although he filed two motions pro se which asserted his right to a speedy trial, his attorneys either withdrew them on his behalf or waived them by agreeing to continuances after asserting such motions, and (3) there was no prejudice because the defendant failed to point to any specific place in the record where a witness’s memory was affected and did not even point out a witness’s lack of detail in answering a question posed by either side. Whitaker v. State, 757 So. 2d 1060, 2000 Miss. App. LEXIS 147 (Miss. Ct. App. 2000).

Defendant failed to establish speedy trial violation in connection with delay of more than 18 months between his arrest and his indictment and trial, particularly as defendant failed to point to any evidence establishing reason for delay or showing how he was prejudiced, and defendant never asserted his right to speedy trial. Sanders v. State, 678 So. 2d 663, 1996 Miss. LEXIS 300 (Miss. 1996).

Defendant was not denied his constitutional right to speedy trial, considering totality of circumstances; total delay from date of arrest to date of trial was 409 days and thus was presumptively prejudicial, total period of delay after subtracting delays attributable to defendant was 211 days, defendant claimed violation of his constitutional right to speedy trial 3 days before trial, and defendant made no showing of actual prejudice other than his incarceration. Johnson v. State, 666 So. 2d 784, 1995 Miss. LEXIS 616 (Miss. 1995).

A defendant’s constitutional right to a speedy trial was not violated where the defendant was tried 230 days after his arrest, the delay was due to the State’s reasonable and legitimate motion for a continuance predicated on the unavailability of a material witness, the defendant’s assertion of his right to a speedy trial was made 173 days prior to trial in conjunction with his objection to the State’s request for a continuance, and there was no actual prejudice to the defendant in his defense. Box v. State, 610 So. 2d 1148, 1992 Miss. LEXIS 748 (Miss. 1992).

A defendant was not denied his right to a speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution and Article 3, § 26 of the Mississippi Constitution, even though approximately 11 months transpired between the defendant’s arrest and the commencement of his trial, where the State twice offered to try the case after each of the defendant’s 2 motions for speedy trial and the defendant twice declined, and the defendant made no showing of actual prejudice. Fleming v. State, 604 So. 2d 280, 1992 Miss. LEXIS 382 (Miss. 1992).

A defendant’s constitutional right to a speedy trial was not violated, even though 536 days elapsed between the defendant’s arrest and his trial and no reason for the delay appeared in the record, where 126 days were attributable to a continuance requested by the defendant, the defendant’s first and only assertion of his right to a speedy trial came only one day prior to trial, and the defendant experienced no prejudice as a result of the delay. Spencer v. State, 592 So. 2d 1382, 1991 Miss. LEXIS 965 (Miss. 1991).

A defendant was denied his constitutional right to a speedy retrial where there was a 288-day delay which was presumptively prejudicial, the prosecution offered only the court’s docket pages as evidence, there was no evidence in the record justifying the delay or rebutting the presumption of prejudice, and the defendant had made a demand for a speedy retrial on October 13, 1987 and the prosecution did nothing until the defendant moved to dismiss in February of 1988. State v. Ferguson, 576 So. 2d 1252, 1991 Miss. LEXIS 113 (Miss. 1991).

A defendant was not deprived of his constitutional right to a speedy trial, even though he was tried 603 days after his arrest, where only the 162-day delay from the arrest to the indictment was chargeable against the State, the defendant did not assert his right to a speedy trial until 35 days prior to trial, and he failed to show prejudice as a result of the delay. Handley v. State, 574 So. 2d 671, 1990 Miss. LEXIS 857 (Miss. 1990), op. withdrawn, sub. op., 1991 Miss. LEXIS 235 (Miss. Apr. 16, 1991).

A defendant was not denied his right to a speedy trial, even though his retrial did not commence until 383 days after the reversal of his original conviction, where part of the delay could be attributed to the logistics of a change in venue, the defendant apparently did not assert his right to a speedy trial, and there was no prejudice, particularly since it was in the defendant’s best interest that the retrial be delayed as both parties searched to secure the attendance of a witness whom the defendant claimed was critically important to have as a live eyewitness at trial; the delay did not violate §99-17-1 since the 270-day rule does not apply to retrials. Mitchell v. State, 572 So. 2d 865, 1990 Miss. LEXIS 722 (Miss. 1990).

There was no merit in argument that defendant’s due process rights had been violated by unexcused and unreasonable delay in charging him with crime where there was no proof government even knew of alleged embezzlement before receiver of trust went to district attorney’s office, which occurred after death of trust beneficiary, much less that government deliberately delayed indictment in order to gain advantage over defendant. Hooker v. State, 516 So. 2d 1349, 1987 Miss. LEXIS 2952 (Miss. 1987).

161. –Waiver of rights, speedy trial.

Defendant’s delay of nearly seven years waived his right to use post-conviction petition to challenge sentencing delay as violation of his right to speedy trial. Marshall v. State, 680 So. 2d 794, 1996 Miss. LEXIS 486 (Miss. 1996).

162. –Appellate review, speedy trial.

Where defendant did not raise the issue below, an assertion that her speedy trial rights were violated in a manslaughter case was not heard on review since an appellate court was not equipped to be a fact finder. Miller v. State, 956 So. 2d 221, 2007 Miss. LEXIS 278 (Miss. 2007).

Defendant failed to adequately demonstrate violation of fundamental right regarding his claim of speedy trial violation in connection with delay of more than 18 months between his arrest and his indictment and trial and, thus, reviewing court would not use rule of plain error to hear speedy trial issue, which was not raised in trial court; defendant’s discussion of issue on appeal was brief and did not state how delay violated his rights. Sanders v. State, 678 So. 2d 663, 1996 Miss. LEXIS 300 (Miss. 1996).

Habeas corpus petitioner failed to demonstrate that Mississippi’s direct appeal bar was not strictly and directly applied near time of petitioner’s direct appeal to cases involving speedy trial claims direct appeal raised for first time on collateral review, as required to render bar inadequate as procedural bar. Martin v. Maxey, 98 F.3d 844, 1996 U.S. App. LEXIS 28836 (5th Cir. Miss. 1996).

On a record showing a largely unexplained delay of almost 400 days in bringing the accused to trial, aggravated by some 216 unjustified days in delay following the accused’s demand that he be brought to trial, and applying the familiar balancing test, the accused’s right to a speedy trial was violated and he was required to be discharged. Beavers v. State, 498 So. 2d 788, 1986 Miss. LEXIS 2772 (Miss. 1986).

163. –Double jeopardy–In general.

“Double jeopardy” consists of three separate constitutional protections; it protects against second prosecution for same offense after acquittal, it protects against second prosecution for same offense after conviction, and it protects against multiple punishments for same offense. White v. State, 702 So. 2d 107, 1997 Miss. LEXIS 605 (Miss. 1997).

Although state may freely define crimes and assign punishments, it is not allowed to punish defendant for crime containing elements which are completely enveloped by offense for which defendant was previously convicted. Holly v. State, 671 So. 2d 32, 1996 Miss. LEXIS 15 (Miss.), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4179 (U.S. 1996).

In context of double jeopardy, underlying felony in felony-murder is, by definition, included in greater offense and may not be punished separately. Ballenger v. State, 667 So. 2d 1242, 1995 Miss. LEXIS 451 (Miss. 1995), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4177 (U.S. 1996).

A defendant’s double jeopardy right not to be re-prosecuted for the same offense accrues instantly upon the happening of some event in criminal proceedings against him or her, though the original jeopardy must have “terminated” in order for such a right to accrue; thereafter, lapse of time neither strengthens nor diminishes the right as no subsequent event affects an accrued double jeopardy right. De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

The double jeopardy clause did not bar reprosecution of a defendant for murder following the Supreme Court’s reversal of his conviction where the conviction was reversed on procedural grounds and the defendant was allowed to plead guilty to lesser offenses pursuant to the bargain, but the defendant subsequently refused to plead guilty to the lesser offenses. The defendant could be prosecuted for the murder under the original indictment since the reversal of his murder conviction on procedural grounds did not constitute a rendering of the case nor a discharge of the defendant, and the defendant’s refusal to plead guilty to the lesser offenses was a breach of the bargain. State v. Danley, 573 So. 2d 691, 1990 Miss. LEXIS 834 (Miss. 1990).

A retrial did not place defendant in double jeopardy where reversal of his manslaughter conviction was due to the error of the lower court in compelling defendant’s wife to testify for the state and was not based on insufficiency of the evidence; however, it was error to retry defendant for murder instead of manslaughter where he had been charged with but not convicted of murder in the first trial. Tapp v. State, 373 So. 2d 1029, 1979 Miss. LEXIS 2311 (Miss. 1979).

164. –Nolle prosequi, double jeopardy.

A nolle prosequi entered upon the motion of the district attorney did not terminate the defendant’s original jeopardy or accrue unto him the right not to be re-indicted and re-prosecuted for the same offense where the State had unsuccessfully sought the defendant’s conviction through 2 successive trials which both ended when the jury became deadlocked so that there was a “manifest necessity” to declare a mistrial in each case, there was nothing to suggest any prosecutorial misconduct or manipulation in moving for the nolle prosequi, and there was no objection by the defendant to the entry of the nolle prosequi. De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

165. –Conspiracy, double jeopardy.

Test for determining when separate conspiracy exists, for purpose of determining whether subsequent prosecution is barred by double jeopardy, requires government to prove, by preponderance of the evidence, a separate conspiracy focusing upon elements of time, persons acting as coconspirators, statutory offenses charged in indictments, overt acts charged by government or any other description of offense charged which indicates nature and scope of activity which government sought to punish in each case, and place where events alleged as part of conspiracy took place. Cook v. State, 671 So. 2d 1327, 1996 Miss. LEXIS 130 (Miss. 1996).

Subsequent prosecution of defendants, who had been acquitted of conspiracy to commit forgery and/or defraud corporation out of money for forged soybean weight certificates, on charge of conspiracy to defraud Farmer’s Home Administration was barred by double jeopardy clause, even though second prosecution accused defendants of trying to defraud different victim, as corporation was named in both indictments and, in addition, same time frame was involved, persons named as coconspirators were substantially the same, offenses charged in both indictments were conspiracy to defraud and to cheat, overt acts by defendants amounted to same course of conduct of transferring forged soybean certificates to company which issued checks in defendants’ names representing payment for soybeans purportedly delivered to corporation, and conduct occurred in same counties. Cook v. State, 671 So. 2d 1327, 1996 Miss. LEXIS 130 (Miss. 1996).

A defendant’s convictions for both murder-for-hire capital murder under §97-3-19(2)(d) and conspiracy to commit capital murder under §97-1-1 violated the constitutional protection against double jeopardy, since the definition of murder-for-hire in §97-3-19(2)(d) completely encompasses the agreement or conspiracy to commit capital murder. Colosimo v. Senatobia Motor Inn, 662 So. 2d 552, 1995 Miss. LEXIS 479 (Miss. 1995).

Although a substantive offense and a conspiracy to commit are 2 separate offenses, where there is a common nucleus of operative facts existing in both indictments, and where the ultimate fact has been determined in a prior acquittal of the substantive offense by a final judgment, a conspiracy trial is barred thereafter under the constitutional double jeopardy provision. Griffin v. State, 545 So. 2d 729, 1989 Miss. LEXIS 289 (Miss. 1989), limited, State v. Thomas, 645 So. 2d 931, 1994 Miss. LEXIS 554 (Miss. 1994).

166. –Same elements, double jeopardy.

Conviction of defendant for individual operation of chop shop violated double jeopardy under blockburger test, as defendant was convicted of operating the same chop shop on different days, and was convicted of joint operation of chop shop; operation of chop shop is continuing offense when based on same evidence, and offenses of individual and joint operation of chop shop arose from single transaction, same evidence, and same proof. White v. State, 702 So. 2d 107, 1997 Miss. LEXIS 605 (Miss. 1997).

Blockburger or “same-elements test” of whether double jeopardy bar applies in context of multiple punishment or multiple prosecution inquires whether each offense contains an element not contained in the other; if not, they are same offense for double jeopardy purposes. Cook v. State, 671 So. 2d 1327, 1996 Miss. LEXIS 130 (Miss. 1996).

A trial court erred in allowing a defendant to plead guilty to both capital murder and the underlying felony of burglary which elevated the murder to capital murder; sentencing the defendant separately for both felony murder and the underlying felony violated his right against double jeopardy. Fuselier v. State, 654 So. 2d 519, 1995 Miss. LEXIS 222 (Miss. 1995).

Section63-11-30 proscribes the act of drunk driving rather than the act of negligent killing; thus, an indictment charging the defendant with 2 counts of violating §63-11-30 based on only one act of drunk driving subjected the defendant to double jeopardy and required reversal of the conviction on the second count. Mayfield v. State, 612 So. 2d 1120, 1992 Miss. LEXIS 861 (Miss. 1992).

In a prosecution for aggravated assault arising out of an automobile accident, the trial court properly quashed the indictment on the grounds of double jeopardy and collateral estoppel where defendant had previously been acquitted of manslaughter in the death of another victim of the accident and where the pivotal issue of whether defendant had grabbed the steering wheel of the truck in which he was riding, thereby causing the collision, was the same in both cases and had previously been resolved in defendant’s favor in the manslaughter prosecution. State v. Clements, 383 So. 2d 818, 1980 Miss. LEXIS 1993 (Miss. 1980).

167. –Separate and distinct crimes, double jeopardy.

Under Blockburger double jeopardy test, defendant can be punished or tried for two offenses, if each offense contains an element not contained in the other; if not, they are the “same offense” and double jeopardy bars additional punishment and successive prosecution. White v. State, 702 So. 2d 107, 1997 Miss. LEXIS 605 (Miss. 1997).

Since conspiracy and burglary are separate and distinct crimes requiring proof of different elements, a defendant did not have a double jeopardy claim based on the prosecution of these 2 crimes arising from the same incident, despite the fact that the prosecution chose to prosecute the defendant for these crimes at separate trials. House v. State, 645 So. 2d 931, 1994 Miss. LEXIS 537 (Miss. 1994).

A defendant’s right to be free from double jeopardy was not violated, even though the defendant was tried, convicted and sentenced for 2 distinct offenses–simple assault and simple assault upon a law enforcement officer–arising from the same incident, because the defendant engaged in conduct which was severable into 2 separate offenses where he intervened in an ongoing assault to aid another perpetrator by preventing a third party from assisting the victim, and he subsequently committed an assault against the same victim by pointing his pistol at him. Moore v. State, 617 So. 2d 272, 1993 Miss. LEXIS 128 (Miss. 1993).

168. –Mistrial generally, double jeopardy.

In a rape and simple assault case, admission of photographs of doors showing what were purported to be new locks, already testified to by the victim, did not affect the fundamental fairness of the trial to the extent of constituting reversible error. Williams v. State, 868 So. 2d 346, 2003 Miss. App. LEXIS 669 (Miss. Ct. App. 2003).

In a defendant’s second trial conducted approximately one week after the declaration of a mistrial during his first trial did not violate the constitutional prohibition against double jeopardy where the first trial ended in a mistrial declared by the court on its own motion when the prosecutor brought to his attention that a juror had failed to divulge that she was related to a law enforcement officer. Box v. State, 610 So. 2d 1148, 1992 Miss. LEXIS 748 (Miss. 1992).

169. –Mistrial at request of defendant, double jeopardy.

Defendant who moves for mistrial generally is barred from later complaining of double jeopardy violation; to overcome bar, defendant must show that error occurred and that it was committed by the prosecution purposefully to force defendant to move for mistrial. Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 1996 Miss. LEXIS 146 (Miss. 1996).

Double jeopardy does not arise from grant of mistrial on defendant’s motion without proof of judicial error prejudicing defendant or bad faith prosecutorial misconduct. Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 1996 Miss. LEXIS 146 (Miss. 1996).

Alleged error committed by the prosecution in requesting and receiving information on jury panel members from circuit clerk, resulting in mistrial on defendant’s request, was insufficient to trigger double jeopardy so as to bar second trial where defendant failed to prove prosecutor’s intent to force defendant to request mistrial. Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 1996 Miss. LEXIS 146 (Miss. 1996).

170. –Capital sentencing procedure, double jeopardy.

Since Mississippi’s capital sentencing procedure requires the jury to determine whether the State has proved its case for the death penalty, the double jeopardy clause will protect a defendant from any subsequent attempt to subject him or her to the death penalty after a jury has impliedly acquitted him or her of the death penalty by determining that only a life sentence was warranted. Lanier v. State, 635 So. 2d 813, 1994 Miss. LEXIS 165 (Miss. 1994), overruled in part, Twillie v. State, 892 So. 2d 187, 2004 Miss. LEXIS 1322 (Miss. 2004).

The double jeopardy clause did not afford a capital murder defendant protection against further capital sentencing procedures where he was originally sentenced to death by a jury, the death sentence was subsequently reversed due to a confrontation clause problem but there was no finding that the State had failed to prove its case for the death penalty, and the defendant and the State then entered into a sentencing agreement which was found to be void; since there was no acquittal of the death penalty, the double jeopardy clause would not prohibit the State from seeking the death penalty at a subsequent sentencing hearing. Lanier v. State, 635 So. 2d 813, 1994 Miss. LEXIS 165 (Miss. 1994), overruled in part, Twillie v. State, 892 So. 2d 187, 2004 Miss. LEXIS 1322 (Miss. 2004).

The prohibition against double jeopardy did not preclude the State at resentencing from enhancing a defendant’s life sentence for murder with the habitual offender statute where the defendant was initially sentenced to death and therefore his status as an habitual offender was not determined until after the sentencing trial on remand; since the defendant’s status as an habitual offender had not previously been determined, the finding of habitual offender status on resentencing was not barred by double jeopardy. Gray v. State, 605 So. 2d 791, 1992 Miss. LEXIS 481 (Miss. 1992).

A defendant’s right to be shielded from double jeopardy was violated where the defendant was convicted and punished for both kidnapping under §97-3-53 and capital murder while engaged in the crime of kidnapping under §97-3-19(2)(e); since the defendant was indicted, tried and found guilty of capital murder under §97-3-19(2)(e) with the kidnapping as the underlying felony, and thereafter exposed to trial for his life, the State was precluded from punishing him further for the §97-3-53 kidnapping. Meeks v. State, 604 So. 2d 748, 1992 Miss. LEXIS 400 (Miss. 1992).

171. –Appellate rights, double jeopardy.

The Supreme Court was authorized to treat a circuit court’s denial of a criminal defendant’s motion to dismiss the indictment against him on double jeopardy grounds as a “final judgment” in a civil action under §11-51-3, which authorizes an appeal from a final judgment, and §9-3-9, which gives the Supreme Court jurisdiction of an appeal from any final judgment in the circuit court, since the double jeopardy claim went beyond the defendant’s right not to be convicted in that it involved his constitutional right not to be prosecuted for the offense, and therefore denial of the claim was final and justified immediate determination. De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

The Supreme Court was authorized to treat a criminal defendant’s appeal from a circuit court’s denial of his motion to dismiss the indictment against him on double jeopardy grounds as an appeal from a denial of a writ of habeas corpus under §11-43-53, or, alternatively, as an application to the Supreme Court for a writ of habeas corpus under §§11-43-7 and11-43-9, since the defendant’s double jeopardy claim went beyond his right not to be convicted in that it involved his constitutional right not to be prosecuted for the offense, and therefore the Supreme Court had jurisdiction of the defendant’s appeal under Art. I § 9 of the United States Constitution and Art 3 § 21 of the Mississippi Constitution, which guarantee the right of habeas corpus. De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

An appeal by the Mississippi State Bar to enhance an attorney’s punishment for his violation of disciplinary rules did not violate the attorney’s constitutional right against double jeopardy. Mississippi State Bar v. Blackmon, 600 So. 2d 166, 1992 Miss. LEXIS 154 (Miss. 1992).

172. Search and seizure–In general.

Where police found drugs in the vehicle of a minor, he was charged with possession of more than thirty grams of marijuana. The circuit court did not abuse its discretion by denying his untimely motion to transfer the case to drug court; defendant did not have an equal protection claim since no one has the right to attend the drug court. Jim v. State, 911 So. 2d 658, 2005 Miss. App. LEXIS 665 (Miss. Ct. App. 2005).

A defendant did not have standing to object to a search of his sister’s residence and subsequent seizure of cocaine where the defendant resided elsewhere, did not possess a key to the house, did not have permission to “have the run of the place,” and, aside from the familial relationship, was “little more than a babysitter.” Hopson v. State, 625 So. 2d 395, 1993 Miss. LEXIS 422 (Miss. 1993).

There is no requirement that Miranda warnings precede a consent search. Jones v. State, 607 So. 2d 23, 1991 Miss. LEXIS 985 (Miss. 1991).

A search and seizure question was preserved for review by the Supreme Court, even though the defendant did not use the term “Fourth Amendment” or “Section 23” at the initial suppression hearing, where there was no doubt that the defendant was seeking protection of his right to be free from unreasonable searches and seizures as guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article 3, § 23 of the Mississippi Constitution. Longstreet v. State, 592 So. 2d 16, 1991 Miss. LEXIS 840 (Miss. 1991).

173. –Warrant, search and seizure.

When defendant asserts that information contained in affidavit supporting application for search warrant constitutes false swearing, then reviewing court must determine, with false material set aside, whether affidavit’s remaining content, together with sworn oral testimony presented to issuing magistrate, is sufficient to establish probable cause. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

Even though underlying facts stated in affidavit for search warrant, considered alone, may not be sufficient to confer probable cause for issuance of warrant, oral testimony adduced before issuing magistrate, when taken together with affidavit, may sufficiently establish probable cause for issuance of search warrant under totality of circumstances test. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

Affidavit supporting application for warrant to search defendant’s motel room, when excised of false information, was not by itself sufficient to establish probable cause for issuance of warrant, where affidavit provided merely that officer who was executing other warrant found defendant in possession of large quantity of currency and motel room key, and motel manager verified that motel room was registered to defendant. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

Probable cause did not exist for issuance of warrant to search defendant’s motel room based on information that defendant was present, with others, when drugs were purchased by confidential source, that defendant was present when police officers executed other warrant which yielded 4 grams of cocaine, and that officers found on defendant’s person large amount of money and motel room key. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

The provisions of the Fourth Amendment against the issuance of a search warrant except upon probable cause are applicable to the states. Walker v. State, 192 So. 2d 270, 1966 Miss. LEXIS 1240 (Miss. 1966).

174. –Consent, search and seizure.

Consent is unnecessary when seizure follows search based on probable cause. Townsend v. State, 681 So. 2d 497, 1996 Miss. LEXIS 414 (Miss. 1996).

There is no requirement that Miranda warnings precede a consent search. Jones v. State, 607 So. 2d 23, 1991 Miss. LEXIS 985 (Miss. 1991).

175. –Probable cause, search and seizure.

Search of defendant’s automobile was not illegal as the car was lawfully stopped for speeding and once the trooper smelled marijuana, he had probable cause to search the vehicle; the trooper’s legal search of the vehicle yielded the money and the Carpet Fresh spray can. Cowan v. Miss. Bureau of Narcotics, 2 So.3d 759, 2009 Miss. App. LEXIS 61 (Miss. Ct. App. 2009).

When officer is making valid stop, and has not exceeded its parameters in dealing with defendant, any search pursuant to probable cause is valid; in determining whether probable cause existed for search, it must be information reasonably leading officer to believe that then and there contraband or evidence material to criminal investigation would be found. Townsend v. State, 681 So. 2d 497, 1996 Miss. LEXIS 414 (Miss. 1996).

Search may be made when circumstances surrounding search incident to arrest indicate probable cause, and items may be seized as a result of cursory viewing (or smelling) of area. Townsend v. State, 681 So. 2d 497, 1996 Miss. LEXIS 414 (Miss. 1996).

Police radio broadcast describing rape suspect, which led officer to look for defendant, established probable cause for arrest and reasonable suspicion justifying stop of defendant’s vehicle, and validating defendant’s subsequent consent to search of vehicle, rendering rifle and flashlight recovered during vehicle search admissible. Ellis v. State, 667 So. 2d 599, 1995 Miss. LEXIS 596 (Miss. 1995).

Task of court reviewing whether search warrant was issued upon probable cause is to insure that issuing magistrate had substantial basis for concluding that probable cause existed for issuance of search warrant. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

Information necessary to establish probable cause must be information reasonably leading officer to believe that, then and there, contraband or evidence material to criminal investigation would be found. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

In determining question of probable cause for issuance of warrant, oral testimony is admissible before officer who is required to issue search warrant. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

Under totality of circumstances test, written affidavit supplemented by oral testimony of police officers can, as combined, establish substantial basis for magistrate’s determination that probable cause existed for issuance of search warrant. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

In making its review of whether search warrant was issued upon probable cause, reviewing court looks both to facts and circumstances set forth in affidavit for search warrant and as well, sworn oral testimony presented to issuing magistrate. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

In a prosecution for the sale of cocaine to an undercover police officer, the trial court did not err in admitting into evidence currency seized from the defendant when he was stopped at a traffic light since the officers had probable cause to arrest the defendant without a warrant where one of the officers had videotaped the defendant earlier the same day in a drug sale transaction with other undercover officers, and the stop of the defendant for running a red light was lawful and a subsequent consensual search produced evidence justifying an arrest. Curry v. State, 631 So. 2d 806, 1994 Miss. LEXIS 81 (Miss. 1994).

176. –Informants, search and seizure.

A confidential informant’s tip to a sheriff’s deputy provided probable cause to justify a stop, and therefore a subsequent search and seizure of the suspect’s property did not violate his constitutional rights, where the officer knew the informant, information supplied by the informant had been successfully used by the officer in the past, and the informant accurately told the officer that the suspect would be traveling in a certain direction on a certain road which demonstrated a special familiarity with the suspect’s affairs. Neely v. State ex rel. Tate County, 628 So. 2d 1376, 1993 Miss. LEXIS 562 (Miss. 1993).

177. –Motor vehicle, search and seizure.

Pursuant to automobile exception to warrant requirement, evidence seized without warrant from automobile is admissible if there is probable cause and exigency. Sanders v. State, 678 So. 2d 663, 1996 Miss. LEXIS 300 (Miss. 1996).

Both probable cause and exigency prong of automobile exception to warrant requirement were satisfied, despite defendant’s claim that narcotics agents should have gotten search warrant in the several hours that passed between informant’s giving defendant informant’s car and defendant’s arrest; in recorded conversations, defendant had agreed to go out-of-state and get cocaine for informant, who had allegedly made similar transactions with defendant in past, and at time vehicle was stopped, nearness of state line and ease with which defendant could have fled agents’ jurisdiction made getting search warrant impracticable. Sanders v. State, 678 So. 2d 663, 1996 Miss. LEXIS 300 (Miss. 1996).

For purposes of exigency prong of automobile exception to warrant requirement, exceptional circumstances excusing issuance of warrant are: when vehicle searched is in motion; when officers have probable cause to believe vehicle contains contraband subject to search; and when it is impracticable to secure warrant because vehicle can and may be removed from jurisdiction. Sanders v. State, 678 So. 2d 663, 1996 Miss. LEXIS 300 (Miss. 1996).

In a prosecution for possession of crack cocaine, the search of an automobile was not valid as a search incident to an arrest for driving with a suspended license where the police officer searched the car after the defendant had been frisked, handcuffed and placed in the back seat of the officer’s patrol car, and therefore the officer could have had no reasonable fear that the defendant might have had a weapon or could have been in a position to destroy incriminating evidence from the crime which led to his arrest. Ferrell v. State, 649 So. 2d 831, 1995 Miss. LEXIS 31 (Miss. 1995).

In a prosecution for possession of crack cocaine, the search of an automobile was not valid under the plain view exception to the search warrant requirement where the police officer entered the car to retrieve the keys, he saw an ordinary matchbox on the passenger seat and opened it to find only matches, and he then noticed another matchbox between the 2 front seats and opened it to find that it contained 9 rocks of crack cocaine; no incriminating evidence was visible at the time the officer entered the car, since the mere presence of a matchbox on the front seat of a car ordinarily cannot be termed an incriminating object in plain view. Ferrell v. State, 649 So. 2d 831, 1995 Miss. LEXIS 31 (Miss. 1995).

It was permissible for a police officer to stop an automobile and detain the occupants until a warrant to search the car was obtained where the officer had “staked out” the highway based on phone calls from a confidential informant who had given him reliable information in the past, the officer was familiar with the occupants of the car and the informant had given him their names, and the car make, license plate, and ownership of the car were confirmed by the officer before he pulled the car over. Haddox v. State, 636 So. 2d 1229, 1994 Miss. LEXIS 182 (Miss. 1994).

Substantial evidence existed to support a finding that probable cause existed for a warrantless search of a defendant’s automobile where there was probable cause to obtain a warrant to search the defendant’s home, and evidence found in the home provided probable cause to believe that a murder may have been committed in the home and that the victim’s body may have been placed in the automobile for transportation. Spivey v. Mowdy, 617 So. 2d 999, 1992 Miss. LEXIS 688 (Miss. 1992).

A trial court did not err in overruling a capital murder defendant’s motion to exclude certain physical evidence seized from his automobile, even though the search was conducted pursuant to consent given by the defendant’s wife who may not have had mutual use of the car, since the police were reasonable in their belief that the wife had common authority, mutual use, and joint control over the car where the wife held title to the car, she told the police she owned the car and provided them with keys, and she never indicated that the car had been in the defendant’s sole possession. Mettetal v. State, 615 So. 2d 600, 1993 Miss. LEXIS 96 (Miss. 1993).

Police officers who set up a roadblock after receiving information that employees of two nearby factories were driving without licenses and who were checking all drivers did not violate defendant’s constitutional rights in stopping his automobile and detaining its occupants and, upon smelling the odor of burning marijuana emanating from defendant’s car, had probable cause to search it; the police officers were also authorized to seize the marijuana in defendant’s car where one of the officers observed a purse or bag in the lap of defendant’s wife with the corner of a plastic bag protruding therefrom in which he saw a green leafy substance that he suspected to be marijuana. Mettetal v. State, 615 So. 2d 600, 1993 Miss. LEXIS 96 (Miss. 1993).

It was neither a trespass nor an unlawful search, nor was it illegal for a deputy sheriff to look into a station wagon recently occupied by three persons subsequently charged with burglary, and through the windows of the vehicle to observe and consider marks and other indicia that tended to establish that the vehicle had been used for the transportation of property allegedly stolen. Wilson v. State, 186 So. 2d 208, 1966 Miss. LEXIS 1296 (Miss. 1966).

177. –Blood and bodily fluids, search and seizure.

An officer’s failure to inform the defendant that he had a right to refuse the officer’s request for a blood sample did not render the test results inadmissible in a manslaughter prosecution against the defendant where the officer had probable cause to obtain the blood sample in that the officer knew that the defendant was the driver of an automobile which had collided head on with another vehicle, the collision occurred on a straight and level highway when the road condition was dry, the officer knew that at least two people were dead in the vehicle which the defendant hit, the officer had observed a beer in the defendant’s vehicle, and the defendant had slurred speech and dilated pupils. For a search which would otherwise be illegal, absent consent, knowledgeable waiver of one’s constitutional right not to be searched is guaranteed by Article 3, § 23 of the Mississippi Constitution. However, blood searches which are based upon probable cause are not illegal, and, therefore, the question of the defendant’s knowledgeable waiver was not relevant. Longstreet v. State, 592 So. 2d 16, 1991 Miss. LEXIS 840 (Miss. 1991).

178. –Abandonment of property, search and seizure.

In a prosecution for possession of a controlled substance, cocaine which had been discarded by the defendant was not the fruit of an illegal search and seizure, and was therefore properly admitted into evidence, since the defendant was not “seized or arrested” when he discarded the drugs where the defendant did not stop when police officers ordered him to do so for the purpose of checking his identification, and he threw down the cocaine while he was walking away from the officers; the defendant was not restrained or stopped at the time he discarded the cocaine, and therefore the cocaine was abandoned and not the fruit of an unlawful seizure or arrest. Harper v. State, 635 So. 2d 864, 1994 Miss. LEXIS 201 (Miss. 1994), limited, Flowers v. State, 947 So. 2d 910, 2007 Miss. LEXIS 24 (Miss. 2007).

179. –Search incident to arrest.

Search of passenger compartment of defendant’s car and of bag found therein was valid as justified by search incident to arrest and probable cause; officer had pulled defendant over for running traffic light, defendant was placed under lawful arrest for three failures to appear for traffic violations and was seated in patrol car, defendant’s request for his money bag sent officer back to vehicle, officer then smelled marijuana, giving him probable cause to search further for source of smell, and search for money bag in passenger compartment, in which defendant had been only passenger, followed immediately after arrest. Townsend v. State, 681 So. 2d 497, 1996 Miss. LEXIS 414 (Miss. 1996).

The search of a defendant’s person incident to his arrest for carrying a concealed weapon was reasonable within the confines of the Fourth Amendment, even though the search took place after the defendant was taken to the county jail rather than at the time and place of the arrest; thus, the defendant’s attorney was not deficient in failing to move to suppress the evidence obtained as a result of this search on the ground that the search was illegal. Rankin v. State, 636 So. 2d 652, 1994 Miss. LEXIS 133 (Miss. 1994).

The search of a defendant’s jacket incident to his arrest for carrying a concealed weapon was reasonable within the meaning of the Fourth Amendment where the arresting officers saw the defendant take the jacket off and place it on a guard rail beside him, since the jacket was in the area within the defendant’s immediate control at the time of his arrest; thus, the defendant’s attorney was not deficient in failing to move to suppress the evidence obtained as a result of this search on the ground that the search was illegal. Rankin v. State, 636 So. 2d 652, 1994 Miss. LEXIS 133 (Miss. 1994).

180. –Self-incrimination – In general.

Defendant’s due process rights were not violated by a prosecutor’s question regarding the invocation of the right to remain silent because defense counsel referred to the issue during direct examination; moreover, defendant failed to invoke the right during questioning after an arrest for sexual battery. McCoy v. State, 878 So. 2d 167, 2004 Miss. App. LEXIS 53 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 910 (Miss. 2004).

A police detective’s testimony concerning the fact that the defendant fainted after he was informed of his Miranda rights was not a violation of the defendant’s constitutional rights since the defendant did not give a statement and the detective did not comment on his silence; the detective’s stating that the defendant fainted was not the same as stating that the defendant refused to testify. Stogner v. State, 627 So. 2d 815, 1993 Miss. LEXIS 531 (Miss. 1993).

Privilege against self-incrimination exists in bar disciplinary proceedings, even though no criminal charges are pending against attorney being charged at time, although questions concerning personal history, unrelated to charges in formal complaint, should be answered. Mississippi State Bar v. Attorney L., 511 So. 2d 119, 1987 Miss. LEXIS 2615 (Miss. 1987).

One who is required by the power of the state to testify to his hurt is immune from prosecution for the thing for which he was required to testify, whether that testimony is used by the state or not. Kellum v. State, 194 So. 2d 492, 1967 Miss. LEXIS 1410 (Miss. 1967).

It is not necessary for arresting officer to summon member of suspect’s family or friend or lawyer when arrest is made to attend interrogation to be conducted by officers and confession was not involuntary for this reason when accused was arrested in presence of his father and mother, who knew that he was being incarcerated, and there was no refusal to permit attorneys of prisoner to have access to him after they were employed in case. Moore v. State, 207 Miss. 140, 41 So. 2d 368, 1949 Miss. LEXIS 324 (Miss.), cert. denied, 338 U.S. 844, 70 S. Ct. 93, 94 L. Ed. 516, 1949 U.S. LEXIS 1838 (U.S. 1949).

181. –Advisement of Miranda rights, self-incrimination.

Licensed social worker employed by state was not required to inform defendant of his Miranda rights before interview to investigate allegations of sexual battery; social worker was not law enforcement official, lacked authority to arrest defendant, and had duty to report any suspected abuse. Hennington v. State, 702 So. 2d 403, 1997 Miss. LEXIS 637 (Miss. 1997).

A defendant’s statements should have been suppressed where he invoked his right to remain silent and to have an attorney present after he was taken into custody and Mirandized by Tennessee authorities, and he was subsequently Mirandized by Mississippi officers without his having initiated the conversation. Duplantis v. State, 644 So. 2d 1235, 1994 Miss. LEXIS 529 (Miss. 1994), cert. denied, 514 U.S. 1123, 115 S. Ct. 1990, 131 L. Ed. 2d 876, 1995 U.S. LEXIS 3453 (U.S. 1995).

A warning advising a suspect “that anything he said might be used against him in a court of law” is constitutionally adequate; an officer is not required to advise a suspect of all specific possible criminal consequences. One of the virtues of Miranda is its clarity; the warnings are the same in every case. Adding the requirement that the officer inform the suspect of specific criminal consequences would add a component variable from case to case and undermine the simplicity and bright-line character of the rule as it stands. Fowler v. State, 566 So. 2d 1194, 1990 Miss. LEXIS 439 (Miss. 1990).

In a prosecution for capital murder (§97-3-19(2)(e)), the trial court did not err in failing to suppress defendant’s confession, despite defendant’s contention that the confession was not voluntary because he was concerned that the police were implicating his brother in the murder when in fact his brother was not involved, where the record was replete with evidence that defendant was given his Miranda rights on several occasions, and where the record would not support a conclusion that his concern was used by officers to overreach him. Reddix v. State, 381 So. 2d 999, 1980 Miss. LEXIS 1845 (Miss.), cert. denied, 449 U.S. 986, 101 S. Ct. 408, 66 L. Ed. 2d 251 (U.S. 1980).

In the absence of a clear showing that the warnings required in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R. 3d 394, were given, the testimony of a sheriff as to certain admissions alleged to have been made to him by the defendant which was disputed by the defendant’s evidence, should not have been admitted. Williams v. State, 220 So. 2d 325, 1969 Miss. LEXIS 1455 (Miss. 1969).

182. –Continued interrogation after defendant’s invocation of rights, self-incrimination.

A defendant’s statements should have been suppressed where he invoked his right to remain silent and to have an attorney present after he was taken into custody and Mirandized by Tennessee authorities, and he was subsequently Mirandized by Mississippi officers without his having initiated the conversation. Duplantis v. State, 644 So. 2d 1235, 1994 Miss. LEXIS 529 (Miss. 1994), cert. denied, 514 U.S. 1123, 115 S. Ct. 1990, 131 L. Ed. 2d 876, 1995 U.S. LEXIS 3453 (U.S. 1995).

A defendant’s confession should not have been admitted into evidence where the confession was obtained by law enforcement officers after the defendant made a request for an attorney to the justice court judge who was considering binding him over to await the action of the grand jury, and one of the officers heard the defendant’s request. Although the defendant may only have meant that he wanted a lawyer for court proceedings and did not want a lawyer to advise him before being questioned about the crime, the officers did not seek to make such a determination, but simply proceeded to question the defendant, knowing that he was a cocaine addict and to some extent, because of such addiction, judgment-impaired at the time. No intelligent, knowing waiver of the right to counsel, which the defendant had expressed to the justice court judge, could be found from an officer testifying that he simply orally gave the defendant the Miranda warning. Kirkland v. State, 559 So. 2d 1046, 1990 Miss. LEXIS 200 (Miss. 1990).

Once an accused has requested an attorney, it is improper for either the same or another law enforcement officer to question the accused about his or her criminal conduct. If the accused indicates in any manner at any time prior to or during questioning that he or she wishes to remain silent or to have access to counsel, the officers must cease interrogation. When the accused asks for counsel, the officers may not resume interrogation until counsel has been provided, except where the accused voluntarily reinitiates the discussion of the charges. If the accused requests access to counsel, all officers of the prosecution force are bound thereby, including those who have no actual knowledge of the request. Kirkland v. State, 559 So. 2d 1046, 1990 Miss. LEXIS 200 (Miss. 1990).

183. –Admissions following unlawful arrest, self-incrimination.

In a prosecution for murder arising out the deaths of two people during a fire in a house owned by the defendant’s brother-in-law, the conviction would be reversed and the case remanded for a new trial where the trial court erred in admitting into evidence a written inculpatory statement made by the defendant after he had been arrested by the police where there was no evidence to establish probable cause for the arrest and where no event or combination of events transpired to sever the connection or stream of closely related events between his illegal detention and the written statement which was given two hours after an oral statement which had been ruled inadmissible by the trial court. Dycus v. State, 396 So. 2d 23, 1981 Miss. LEXIS 1980 (Miss. 1981).

184. –Capacity of defendant to make knowing waiver, self-incrimination.

The trial court in a capital murder prosecution properly concluded at the end of a lengthy suppression hearing that defendant’s confession was admissible as having been freely and voluntarily given, notwithstanding the fact that defendant was mentally retarded, where there was no evidence of any threats, promises, or any form of physical abuse or coercion, where defendant never requested the assistance of counsel, where there was no evidence that on any occasion during the questioning defendant had been under the influence of drugs or liquor, where the record was replete with the inference that the detective who interrogated defendant had been courteous, considerate, patient and persistent, and where that detective testified that the confession had been given at a time when defendant had understood and appreciated the gravity of the charges against him, and that it had been given at a time when defendant was fully aware of his constitutional privilege against self-incrimination and his right to counsel. Neal v. State, 451 So. 2d 743, 1984 Miss. LEXIS 1760 (Miss.), cert. denied, 469 U.S. 1098, 105 S. Ct. 607, 83 L. Ed. 2d 716, 1984 U.S. LEXIS 470 (U.S. 1984).

185. –Refusal to sign waiver form, self-incrimination.

Defendant’s confession, which was made during a police interrogation, was freely and voluntarily given, and defendant’s rights waiver was knowingly, intelligently, and voluntarily made, because, although defendant declined to sign the rights waiver form, defendant voluntarily informed the interrogating officer of defendant’s alibi and responded to further questioning, despite being advised several times that defendant could stop the interview at any point, until defendant confessed to the rape of the victim. Roberts v. State, 234 So.3d 1251, 2017 Miss. LEXIS 383 (Miss. 2017).

A murder defendant’s initial refusal to sign a waiver of rights form did not constitute a demand for an attorney where he was not questioned again until more than 32 hours had lapsed when he was presented with incriminating physical evidence connecting him to the crime, and he was again advised of his rights before further questioning; thus, admission of his confession into evidence did not violate his constitutional right against compulsory self-incrimination or right to an attorney. Thorson v. State, 653 So. 2d 876, 1994 Miss. LEXIS 600 (Miss. 1994).

A defendant’s Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel were not violated by the admission of his confession into evidence, even though the confession was obtained after the defendant initially refused to sign a waiver of rights form and had stated that he would not sign anything until he talked to his mental health counselor. The defendant’s refusal to sign the waiver of rights form was not a per se invocation of his Fifth Amendment rights. Additionally, the defendant’s request for a mental health counselor was not a per se invocation of his Fifth Amendment rights; a request for someone other than an attorney does not invoke a defendant’s Fifth Amendment rights, and a mental health counselor is not qualified to protect a defendant’s Fifth Amendment rights. Similarly, neither the defendant’s request to speak to his mental health counselor nor his temporary refusal to sign the waiver form constituted a request for counsel so as to invoke his Sixth Amendment right. Mohr v. State, 584 So. 2d 426, 1991 Miss. LEXIS 481 (Miss. 1991).

186. –Voluntary admissions, self-incrimination.

In a possession of marijuana case, defendant was not denied his due process rights in the revocation of his post-release supervision as there was evidence defendant ha waived his rights to a hearing and that he had admitted to violating his probation. Hughes v. State, 901 So. 2d 1274, 2004 Miss. App. LEXIS 932 (Miss. Ct. App. 2004).

A defendant’s confession was freely and voluntarily given, and was therefore admissible into evidence in his murder trial, where law enforcement officers testified that he was given all the Miranda warnings prior to giving his confession and that he did not ask for an attorney at any time, he was familiar with his constitutional rights as evidenced by his refusal to sign a waiver form and the fact that he had previously been convicted of a felony, and his video-taped confession did not suggest any coercion. Thorson v. State, 653 So. 2d 876, 1994 Miss. LEXIS 600 (Miss. 1994).

187. –Physical evidence generally, self-incrimination.

Defendant was not denied constitutional right to fair trial where he alleged that small particle of skin from abrasion on his right index finger was material, exculpatory evidence that had been intentionally destroyed or lost by state, where there was nothing in testimony suggesting prosecutorial bad faith and where record contained little suggesting that skin particle would have played significant role at trial. Tolbert v. State, 511 So. 2d 1368, 1987 Miss. LEXIS 2681 (Miss. 1987), cert. denied, 484 U.S. 1016, 108 S. Ct. 723, 98 L. Ed. 2d 672, 1988 U.S. LEXIS 259 (U.S. 1988).

188. –Breathalyzer tests, self-incrimination.

In a prosecution for driving a motor vehicle while under the influence of intoxicating liquor, the admission into evidence under §63-11-41 of the defendant’s refusal to take a breathalyzer test did not violate the Fifth Amendment to the United States Constitution and Article 3, § 26 of the Mississippi Constitution, even though the defendant was not specifically warned that his refusal could be admitted into evidence against him; the penalty of introducing a refusal serves an important state interest in encouraging defendants to submit to a chemical test, and as the refusal is physical instead of testimonial, its introduction into evidence violates neither the Fifth Amendment nor § 26. Ricks v. State, 611 So. 2d 212, 1992 Miss. LEXIS 819 (Miss. 1992).

189. –Fingerprints, self-incrimination.

Obtaining fingerprint evidence violates the Fourth and Fourteenth Amendments to the federal constitution, so as to make such evidence inadmissible in a state criminal trial, where (1) the fingerprints were obtained while the accused was detained at police headquarters without probable cause for his arrest, (2) the detention at police headquarters of the accused was not authorized by a judicial officer, (3) the accused was unnecessarily required to undergo two fingerprinting sessions, and (4) the accused was not merely fingerprinted during the first of the two sessions, but was also subjected to interrogation. Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676, 1969 U.S. LEXIS 1869 (U.S. 1969).

The temporary detention of a defendant for fingerprinting in the course of an investigation without his being booked, charged, or incarcerated did not constitute an arrest, and evidence derived therefrom was not inadmissible at the defendant’s trial on charges of burglary and assault and battery with intent to kill. Reeves v. Reeves, 210 So. 2d 780, 1968 Miss. LEXIS 1521 (Miss. 1968).

190. –Hearsay evidence, self-incrimination.

Invoking Fifth Amendment privilege against self-incrimination makes the witness unavailable and any hearsay statements from another witness about what the unavailable witness said fall within hearsay exception. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

191. –Comment upon exercise of right to remain silent, self-incrimination.

Government’s exploitation of silence, after government has helped induce that silence by informing defendant of his right to remain silent, violates due process. Pitts v. Anderson, 122 F.3d 275, 1997 U.S. App. LEXIS 25289 (5th Cir. Miss. 1997).

Alternative tests for determining whether prosecutor’s or witness’s remarks constitute comment on a defendant’s silence are whether “manifest intent” was to comment on defendant’s silence or, alternatively, whether character of remark was such that jury would “naturally and necessarily” construe it as comment on defendant’s silence, determining both intent of prosecutor and character of remarks in relevant context. Pitts v. Anderson, 122 F.3d 275, 1997 U.S. App. LEXIS 25289 (5th Cir. Miss. 1997).

Prosecution is prohibited from making direct comment, or reference by innuendo or insinuation, to defendant’s failure to testify on his or her own behalf. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Right not to give compelled testimony is violated by direct statement regarding defendant’s decision not to testify, or comment which could reasonably be construed by jury to be comment about defendant’s failure to testify. Holly v. State, 671 So. 2d 32, 1996 Miss. LEXIS 15 (Miss.), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4179 (U.S. 1996).

Prosecutor is prohibited from commenting on defendant’s failure to testify, whether by direct comment or by innuendo and insinuation. Jones v. State, 669 So. 2d 1383, 1995 Miss. LEXIS 586 (Miss. 1995).

Prosecutorial comment on defendant’s failure to testify is incurable, and defendant is entitled to mistrial; instruction to jury to disregard prosecutor’s comments is insufficient to correct impropriety. Jones v. State, 669 So. 2d 1383, 1995 Miss. LEXIS 586 (Miss. 1995).

Prosecutor may comment on lack of any defense, and such comment is not construed as reference to defendant’s failure to testify through innuendo and insinuation. Jones v. State, 669 So. 2d 1383, 1995 Miss. LEXIS 586 (Miss. 1995).

Whether prosecutorial comment is improper comment on defendant’s failure to testify is determined on facts and circumstances of each case; question is whether comment can reasonably be construed as comment upon failure of defendant to take stand. Jones v. State, 669 So. 2d 1383, 1995 Miss. LEXIS 586 (Miss. 1995).

Prosecutor did not comment on defendant’s failure to testify by stating that sole issue, in prosecution against defendant for arson, was whether defendant recruited arsonist to burn building on the day in question. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

Prosecutor did not comment on defendant’s failure to testify by pointing out that not one defense witness testified that prosecution witness was lying. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

Prosecutor did not comment on defendant’s failure to testify by stating that no evidence was presented, in prosecution against defendant for arson, that arsonist, allegedly recruited by defendant to burn building on the day in question, was a professional criminal; rather, comment merely referred to paucity of evidence supporting defense theory that arsonist burned building to get revenge on defendant. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

192. –Impeachment, self-incrimination.

Defendant’s post-arrest statement, that victim “come out on me with a gun,” was sufficiently inconsistent with his trial testimony, that third-party shook defendant’s rifle and shooting was accidental, to establish that prosecutor’s comments on statement were designed and had effect of highlighting arguable inconsistency, rather than commenting improperly on defendant’s exercise of his right to remain silent. Pitts v. Anderson, 122 F.3d 275, 1997 U.S. App. LEXIS 25289 (5th Cir. Miss. 1997).

Where defendant’s postarrest statement addresses same subject matter as his trial testimony and is arguably inconsistent with that testimony, prosecutor’s questions and comments designed to highlight inconsistency do not violate due process. Pitts v. Anderson, 122 F.3d 275, 1997 U.S. App. LEXIS 25289 (5th Cir. Miss. 1997).

When witness invokes his Fifth Amendment right, his response is not the proper subject for impeachment. Pitts v. Anderson, 122 F.3d 275, 1997 U.S. App. LEXIS 25289 (5th Cir. Miss. 1997).

Where a defense witness invoked the Fifth Amendment, so that his testimony on direct-examination yielded nothing, the trial court erred in permitting the prosecutor to cross-examine the witness concerning a prior statement made by him; when the prosecutor, through the use of leading questions, parades before the jury the “testimony” of a silent witness, this violates the confrontation clause since the prosecutor cannot take the stand to be cross-examined by the defendant about the silent witness’ “testimony”. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

A defense witness who invoked the Fifth Amendment could not be impeached by the State with respect to a prior statement made by him since the silence of a witness who invokes the Fifth Amendment does not constitute a denial which may be impeached. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

Impeachment evidence as well as exculpatory material comes within the scope of the Brady rule; failure to produce does not depend upon the good faith or bad faith of the prosecution, nor upon the specificity of the defense request. Malone v. State, 486 So. 2d 367, 1986 Miss. LEXIS 3139 (Miss. 1986).

193. –Arguments of counsel, self-incrimination.

Where defendant’s testimony at trial does not deal with same subject matter as his pretrial statement, prosecutor’s remarks on omissions in pretrial statement is considered plea for jury to infer guilt or other negative inferences from defendant’s exercise of his Miranda rights. Pitts v. Anderson, 122 F.3d 275, 1997 U.S. App. LEXIS 25289 (5th Cir. Miss. 1997).

Prosecutorial statements that are either intended to or have necessary effect of raising negative inference simply because of defendant’s exercise of his right to remain silent are prohibited, but where prosecutor’s questions and comments are aimed at eliciting explanation for arguably prior inconsistent statement, no due process violation occurs. Pitts v. Anderson, 122 F.3d 275, 1997 U.S. App. LEXIS 25289 (5th Cir. Miss. 1997).

Even if prosecutor’s statement during closing argument that referred to witness’ testimony, in which witness told defense counsel to ask defendant if he had told witness about committing crime, was improper reference to defendant’s refusal to testify, statement did not require reversal; defense counsel did not object when witness made comment, prosecutor’s remarks could be characterized as summary of witness’ testimony rather than remark on defendant’s failure to testify, evidence supported conviction beyond reasonable doubt without prosecutor’s statement, and comment had almost no persuasive force. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Prosecutor did not improperly comment on defendant’s failure to testify during sentencing phase of capital murder trial when he made comments concerning defendant’s credibility, where defendant had testified during guilt phase and stipulated to use of guilt phase testimony during sentencing phase. Holly v. State, 671 So. 2d 32, 1996 Miss. LEXIS 15 (Miss.), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4179 (U.S. 1996).

Prosecutor did not comment on defendant’s failure to testify by stating, during closing argument in prosecution against defendant for arson, that it was not likely that government witness fabricated his testimony, in that if he had, he would have fabricated a better story; rather, comment merely referred to paucity of evidence supporting defense theory witness was publicity seeker who would fabricate testimony. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

Prosecutor did not comment on defendant’s failure to testify by stating, during closing argument in prosecution against defendant for arson, that there was no testimony supporting defense theory that defendant could not have committed the crime inasmuch as he was doctor who derived sense of closeness from the community because he was “their” doctor; rather, comment merely referred to paucity of evidence supporting that defense theory. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

Prosecutor did not comment on defendant’s failure to testify by stating, during closing argument in prosecution against defendant for arson, that there was no testimony supporting defense theory that arsonist was blackmailing defendant; rather, comment merely referred to fact that blackmail theory was put forth by defense attorneys rather than by defense witnesses. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

Defendant’s constitutional interest in privilege against compelled self-incrimination is balanced on case-by-case basis against rule allowing attorneys wide latitude in making closing arguments, except where attorney makes direct reference to defendant’s failure to testify. Jones v. State, 669 So. 2d 1383, 1995 Miss. LEXIS 586 (Miss. 1995).

Prosecutor did not make improper comments on defendant’s failure to testify, and defendant was thus not entitled to mistrial, when prosecutor commented about what defendant might or might not have said to arresting officer, objected to defense counsel’s statement that defendant was a family man who should be sent home to his family, and noted that jury had not heard any proof about where defendant was going if jury did not convict him. Jones v. State, 669 So. 2d 1383, 1995 Miss. LEXIS 586 (Miss. 1995).

A prosecutor’s remarks during closing argument did not constitute improper comment on the defendant’s decision not to testify where the prosecutor did not comment on the defendant’s failure to take the stand, but merely attempted to turn the jury’s attention to the defendant’s confession to the police which had been admitted into evidence. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

A prosecutor’s comments on the defendant’s failure to testify reached a constitutional dimension so egregious that failure on the part of the defense counsel to make a proper objection either at trial or in his motion for a new trial did not waive the error where the prosecutor made 4 separate statements telling the jury that the State’s witness’ testimony was “unopposed,” “unimpeached,” “unrebutted,” and that there was “no evidence whatsoever toward their unreliability.” Whigham v. State, 611 So. 2d 988, 1992 Miss. LEXIS 821 (Miss. 1992).

A prosecutor did not improperly comment during closing argument on the defendant’s right to remain silent where the prosecutor remarked that the victim could not talk because she was dead and stated that only the defendant and God knew what happened, but he did not observe the defendant’s silence during trial; the prosecutor’s comments would be a reference to the defendant’s failure to testify only if innuendo and insinuation were employed. Alexander v. State, 610 So. 2d 320, 1992 Miss. LEXIS 580 (Miss. 1992).

A prosecutor improperly commented during closing argument on a capital murder defendant’s failure to testify where the prosecutor stated that the defendant “hasn’t told you the whole truth yet,” that “you still don’t know the whole story,” and that the defendant was the only person alive who could give the whole story. Butler v. State, 608 So. 2d 314, 1992 Miss. LEXIS 588 (Miss. 1992).

A prosecutor did not improperly comment on the defendant’s failure to testify when he stated during closing argument: “That’s what you have got before you, and that’s all you have got before you. All the evidence in this case points to one thing and one thing only”; the prosecutor’s comment related to the evidence presented in the trial by both the State and defense as a whole, rather than the failure of the defendant to take the stand. Rogers v. State, 599 So. 2d 930, 1992 Miss. LEXIS 123 (Miss.), overruled in part, Mayfield v. State, 612 So. 2d 1120, 1992 Miss. LEXIS 861 (Miss. 1992).

In a prosecution for rape, statements made by the prosecutor concerning defendant’s failure to deny guilt when arrested were improper but did not mandate reversal of the conviction where the defense attorney neither asked the trial court to instruct the jury to disregard the statements, nor moved for a mistrial, thereby failing to properly preserve the issue for appeal, and where such error was harmless in view of the overwhelming evidence of defendant’s guilt beyond a reasonable doubt. Austin v. State, 384 So. 2d 600, 1980 Miss. LEXIS 2006 (Miss. 1980).

194. Confessions–In general.

Because defense counsel, at the very least, had notice of the fact that the mental examination would take place as he signed off on the examination order, the trial court did not err in failing to suppress the inmate’s confessions. Crawford v. State, 867 So. 2d 196, 2003 Miss. LEXIS 755 (Miss. 2003), cert. denied, 543 U.S. 866, 125 S. Ct. 205, 160 L. Ed. 2d 110, 2004 U.S. LEXIS 6519 (U.S. 2004).

By alleging that his confession was coerced, defendant secured due process entitlement to reliable determination that his confession was not given as a result of coercion, inducement, or promises. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

In order to establish the admissibility of a murder defendant’s confession, the State was not required to offer as witnesses law enforcement officers who allegedly yelled at the defendant and were abusive when he was initially questioned, since the alleged statements made by the officers had no bearing on the defendant’s confession which was made 2 days later after he was given the Miranda warnings. Thorson v. State, 653 So. 2d 876, 1994 Miss. LEXIS 600 (Miss. 1994).

In a prosecution for driving a motor vehicle while under the influence of intoxicating liquor, the defendant’s statement to a police officer that the breathalyzer machine would “probably show I’m in a coma” was essentially a confession that the defendant was drunk, and was therefore admissible into evidence as a voluntary statement where it was made spontaneously after the defendant had been given the Miranda warnings. Ricks v. State, 611 So. 2d 212, 1992 Miss. LEXIS 819 (Miss. 1992).

A defendant’s out of court signed statement was properly used to impeach his testimony, though the statement was inadmissible in the State’s case-in-chief because the defendant signed the statement without being informed of his Miranda rights, since the statement was voluntarily given where the defendant was not threatened or mistreated when he made the statement, no one made any promises to him, he was not intoxicated or under the influence of any drugs, and the defendant admitted that he could have stopped talking at any time and could have left the room. Bowen v. State, 607 So. 2d 1159, 1992 Miss. LEXIS 561 (Miss. 1992).

A trial court followed the correct legal standards to determine the admissibility of the content of a defendant’s confession and there was substantial evidence to support a finding of voluntariness, where no pre-trial motion to suppress was filed, the trial court conducted a hearing in chambers during the trial after the defendant’s in-court objection to the voluntariness of his confession, the trial court found that the State had established a “proper predicate” on the testimony of a fire marshal who was present at the time of the confession, and the defendant did not rebut the State’s predicate during arguments on the motion, so that the State was not required to produce all of the witnesses to the confession to establish voluntariness. Cox v. State, 586 So. 2d 761, 1991 Miss. LEXIS 588 (Miss. 1991).

195. –Capacity of defendant, confessions.

Defendant’s age, 17 years, did not have any bearing on whether he had the ability to voluntarily waive his Miranda rights. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Defendant’s statements to police were voluntary and admissible against him where he understood the content and substance of his Miranda warnings and there was no coercion and, even though defendant had an IQ of 67, expert was of the opinion that he would understand the terms of the waiver if it was explained to him. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

There is no per se rule that mental retardation renders confession involuntary and inadmissible. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Confession is not rendered involuntary simply because person making it is mentally weak. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Although there is no constitutional requirement to examine the mental capacity of the defendant in making a determination as to whether a confession was voluntary, it remains true as a matter of evidence that before any confession is admissible, it must have been given by a person with enough intelligence to be a competent witness. Butler v. State, 608 So. 2d 314, 1992 Miss. LEXIS 588 (Miss. 1992).

There is no constitutional requirement to examine the mental capacity of the defendant in making a determination as to whether a confession is free and voluntary; the focus is directed entirely to the conduct on the part of the State. Butler v. State, 608 So. 2d 314, 1992 Miss. LEXIS 588 (Miss. 1992).

The evidence was sufficient to support a finding that the defendant knowing, intelligently, and voluntarily waived his Miranda rights, even though the defendant had been drinking prior to his arrest, he had not slept for nearly 24 hours prior to waiving his rights, and he had periodic bouts of crying, where the defendant repeatedly acknowledged that he understood his Miranda rights and expressed this acknowledgment both orally and in writing, he was 49 years old, had a high school and vocational education, and considered himself to be a “very intelligent person,” his criminal past provided him with some experience and knowledge about a suspect’s Miranda rights, 5 witnesses testified that he did not appear to be impaired by alcohol and did not slur his speech, the defendant testified that he had been a chronic drinker, the defendant was for the most part calm and cooperative throughout the investigation and particularly at the moment he waived his rights, the defendant had meticulously schemed to “cover his tracks” to avoid arrest which reflected a coherent, unimpaired state of mind, and the defendant’s taped confession contained the admission that no one had “threatened,” “intimidated,” or “promised him anything.” Holland v. State, 587 So. 2d 848, 1991 Miss. LEXIS 648 (Miss. 1991).

A defendant’s confession was not the product of mental deficiency, and therefore the defendant “knowingly” confessed, even though there was evidence that the defendant was mildly mentally retarded, where the defendant graduated from high school though he flunked 3 grades in school, there was no evidence that he was ever placed in special education classes, he admitted that he could read and write and that he understood the charges against him, and all who witnessed the interrogation said they saw no evidence that the defendant suffered mental abnormalities such that he could not understand the interrogation process or its consequences. Veal v. State, 585 So. 2d 693, 1991 Miss. LEXIS 479 (Miss. 1991).

196. –Pre-arrest statements, confessions.

Incriminating statements made by a murder defendant were properly admitted into evidence where the defendant was not under arrest at the time of the questioning, the law enforcement officers were merely seeking information about a missing person, the defendant voluntarily went with the officers to the sheriff’s office, he was free to leave, and he was taken home by an officer when the questioning was over. Thorson v. State, 653 So. 2d 876, 1994 Miss. LEXIS 600 (Miss. 1994).

197. –Delay in release or arraignment, confessions.

Delay of approximately 24 hours between time of arrest and initial appearance before magistrate did not warrant suppression of confession given by defendant prior to initial appearance; defendant was arrested by warrant while he was already in jail, defendant was informed of his right to remain silent, his right to attorney, and his right to stop answering questions at any time and to ask for attorney, and defendant did not ask for appointment of counsel on charge for which he was arrested. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

The delay from the time of a defendant’s arrest until he was taken before a judicial officer did not violate Rule 1.04, Miss. Unif. Crim. R. Cir. Ct. Prac. and the 4th Amendment to the United States Constitution where his initial hearing was held within 48 hours of the time he was taken into custody for questioning, and there was no indication that the officers were purposely holding him in custody to gather sufficient evidence to justify his arrest; thus, his confession was not a product of any delay in taking him before a magistrate and was therefore admissible. Thorson v. State, 653 So. 2d 876, 1994 Miss. LEXIS 600 (Miss. 1994).

The failure to provide a defendant with an initial appearance until five days after his arrest even though a judge was available at all times constituted reversible error where the defendant gave a confession in the absence of counsel and in violation of his right to counsel as a consequence of the delay, and the defendant’s conviction for capital murder was based entirely on his confession. Abram v. State, 606 So. 2d 1015, 1992 Miss. LEXIS 448 (Miss. 1992), overruled in part, Foster v. State, 961 So. 2d 670, 2007 Miss. LEXIS 315 (Miss. 2007), overruled in part, Holly v. Mississippi, 2011 U.S. App. LEXIS 24853 (5th Cir. Miss. Dec. 13, 2011).

Detention of accused without commitment is only one factor for consideration in reaching conclusion as to whether or not confession is free and voluntary, and it is only where confession is obtained as result of unreasonable delay in taking prisoner before magistrate for examination into his case that his admissions of guilt under such psychological pressure are inadmissible. Moore v. State, 207 Miss. 140, 41 So. 2d 368, 1949 Miss. LEXIS 324 (Miss.), cert. denied, 338 U.S. 844, 70 S. Ct. 93, 94 L. Ed. 516, 1949 U.S. LEXIS 1838 (U.S. 1949).

Confession is not obtained as result of illegal detention and there is no unnecessary delay in taking prisoner before magistrate for inquiry into case when prisoner is arrested at 5:30 p. m., is questioned about hour with reference to other crimes, there is hour or more intermission and he admits murder at about 9:30 p. m., and magistrate and other courts are open only within legal hours during daytime. Moore v. State, 207 Miss. 140, 41 So. 2d 368, 1949 Miss. LEXIS 324 (Miss.), cert. denied, 338 U.S. 844, 70 S. Ct. 93, 94 L. Ed. 516, 1949 U.S. LEXIS 1838 (U.S. 1949).

198. –Voluntariness, confessions.

The court rejected defendant’s claim that confessions were involuntary because (1) rights were read to defendant, (2) defendant acknowledged understanding those rights, (3) defendant exhibited no erratic behavior calling into question the voluntariness of a desire to confess, and (4) no evidence of police coercion was found, and thus there was no violation of U.S. Const. amend. XIV. Martin v. State, 854 So. 2d 1004, 2003 Miss. LEXIS 335 (Miss. 2003).

Trial court did not err when it failed to suppress defendant’s statement where the State made out a prima facie case of voluntariness by demonstrating in the suppression hearing that contact was initiated by defendant and multiple Miranda warnings were given; the arresting officer testified as to the voluntariness of the statements and defendant made no attempt to refute the officer’s testimony. Granger v. State, 853 So. 2d 830, 2003 Miss. App. LEXIS 658 (Miss. Ct. App. 2003).

Generally, for confession to be admissible, it must have been given voluntarily and not given as result of promises, threats, or inducements. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

Finding that defendant understood his right to remain silent was supported by defendant’s testimony that he understood that he had right to stop answering questions and by videotape of confession showing that detective explained to defendant that he could stop answering questions at any time and have attorney appointed, which defendant indicated he understood. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

A defendant’s confession was freely and voluntarily given, and was therefore admissible into evidence in his murder trial, where law enforcement officers testified that he was given all the Miranda warnings prior to giving his confession and that he did not ask for an attorney at any time, he was familiar with his constitutional rights as evidenced by his refusal to sign a waiver form and the fact that he had previously been convicted of a felony, and his video-taped confession did not suggest any coercion. Thorson v. State, 653 So. 2d 876, 1994 Miss. LEXIS 600 (Miss. 1994).

The principle enunciated in Agee v. State (1966, Miss.) 185 So. 2d 671 with respect to proving the voluntariness of a confession remains sound, but its importance to an accused has receded in view of the strong affirmative mandates of Miranda; only those persons who are claimed to have induced a confession through some means of coercion are required to be offered by the State as a witness under Agee. Thorson v. State, 653 So. 2d 876, 1994 Miss. LEXIS 600 (Miss. 1994).

A trial court did not err in allowing a defendant’s statement to the police into evidence, in spite of the defendant’s argument that his statement was not voluntary because of his age, education, and intelligence, where the defendant was 17 years old at the time of his arrest and interrogation, he had an 8th grade education, his parents were uneducated, he had suffered head injuries as a young child which allegedly sometimes caused impairment of his mental faculties, and the arresting officers testified that the defendant was read his Miranda rights at least twice before any interrogation, he stated that he understood those rights and the waiver of those rights, and he stated that he did not have any trouble reading or writing. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

A defendant’s waiver of his right to counsel and his right to remain silent when he executed a written waiver prior to confessing could not be found to be voluntary where his confession given immediately thereafter was involuntary due to improper collusion by law enforcement interrogators, since the defendant’s waiver of his right and his confession were inextricably bound and were the product of prolonged coercive police interrogation. Abram v. State, 606 So. 2d 1015, 1992 Miss. LEXIS 448 (Miss. 1992), overruled in part, Foster v. State, 961 So. 2d 670, 2007 Miss. LEXIS 315 (Miss. 2007), overruled in part, Holly v. Mississippi, 2011 U.S. App. LEXIS 24853 (5th Cir. Miss. Dec. 13, 2011).

Competency of confession should be ascertained preliminarily to its introduction before jury, and accused has right to take witness stand during such preliminary hearing and limit his testimony to facts bearing upon whether confession was free and voluntary, and his testimony is entitled to be considered and weighed, along with other evidence, by trial judge upon fact whether accused made confession freely and without hope of reward or fear of punishment, and defendant has right not to take stand and testify. Summerville v. State, 207 Miss. 54, 41 So. 2d 377, 1949 Miss. LEXIS 316 (Miss. 1949).

Right of accused in rape prosecution to testify in preliminary hearing on competency of his confession and to limit his testimony to facts bearing upon whether confession was free and voluntary cannot be limited by trial judge by condition that defendant testify before jury on merits and no conditions are imposed upon accused by trial court who informs him that he may take witness stand “at this stage of the proceedings merely to contest the freedom of the confessions.” Summerville v. State, 207 Miss. 54, 41 So. 2d 377, 1949 Miss. LEXIS 316 (Miss. 1949).

The due process clause of the Fourteenth Amendment invalidates a state court conviction grounded in whole or in part upon a confession which is the product of other than reasoned and voluntary choice. Lee v. Mississippi, 332 U.S. 742, 68 S. Ct. 300, 92 L. Ed. 330, 1948 U.S. LEXIS 2619 (U.S. 1948).

Use of a confession of guilt by the accused extorted by brutality and violence to obtain a conviction of crime is a denial of due process of law even though coercion was not established until after the confession had been admitted in evidence and counsel for the accused did not thereafter move for its exclusion. Brown v. Mississippi, 297 U.S. 278, 56 S. Ct. 461, 80 L. Ed. 682, 1936 U.S. LEXIS 527 (U.S. 1936).

199. –Inducements or threats, confessions.

Defendant’s confession was not unlawfully induced by detective’s comment that defendant should tell truth and that “the truth shall set you free”; defendant had history of legal problems and had opportunity to become familiar with criminal justice system, there was nothing to indicate that defendant placed trust or confidence in detective, and defendant testified that he was not offered any promises or inducements to make written or videotaped confessions. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

Determination that defendant was not threatened into making confession was supported by testimony of all detectives present at time of alleged threat, in which detectives all denied that threat was made. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

A defendant’s statement to police was admissible and not the product of improper inducement, even though a police officer had told the defendant that “it’d be best for him to tell us to help himself,” where the defendant received Miranda warnings twice, he understood his constitutional rights, his statement was a denial rather than a confession, no specific promise was made to him by a law enforcement officer, and he maintained that he would have told the truth regardless of the officer’s comments to him. Chase v. State, 645 So. 2d 829, 1994 Miss. LEXIS 116 (Miss. 1994), cert. denied, 515 U.S. 1123, 115 S. Ct. 2279, 132 L. Ed. 2d 282, 1995 U.S. LEXIS 3828 (U.S. 1995).

The trial court in a capital murder prosecution erred in refusing to suppress the defendant’s confession as involuntary where a former teacher and retired minister was called in by the sheriff to meet privately with the defendant, the minister communicated to the defendant, at the sheriff’s direction, the notion that there might be a chance for mercy if he volunteered to cooperate, the minister and the defendant discussed the death penalty and the religious ramifications of the defendant’s action, a sheriff’s deputy told the defendant that he thought it would look better if the defendant confessed, and an investigator who conducted the interrogation with the sheriff admitted that the defendant may have been given the impression by the investigator and the sheriff that cooperation could be of some benefit. Abram v. State, 606 So. 2d 1015, 1992 Miss. LEXIS 448 (Miss. 1992), overruled in part, Foster v. State, 961 So. 2d 670, 2007 Miss. LEXIS 315 (Miss. 2007), overruled in part, Holly v. Mississippi, 2011 U.S. App. LEXIS 24853 (5th Cir. Miss. Dec. 13, 2011).

A trial court erred by admitting testimony concerning a defendant’s confession where the defendant testified that he could not recall being read his Miranda rights and that he thought he would be incarcerated that same day if he did not confess, the prosecution did not produce all officers who were present when the defendant was questioned and his confession given, and no adequate reason for the officers’ absence was given. Lettelier v. State, 598 So. 2d 757, 1992 Miss. LEXIS 127 (Miss. 1992).

Statements made by sheriffs to a defendant that “it was always best to tell the truth” and that “it would be better for him to tell the truth” were mere exhortations to tell the truth and not an inducement to confess, where the defendant was a 22-year-old adult who had several prior convictions and was therefore familiar with the criminal justice system, the defendant’s first statement after the sheriff’s alleged inducements was a denial rather than a confession, and the defendant testified at his suppression hearing that the sheriffs did not make any specific promises. Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

Confession held properly admitted in prosecution for assault with intent to rape notwithstanding the defendant’s contention that confession was forced from him by two detectives who struck him and that its admission amounted to taking of life without due process, where the jailer testified no detective had access to defendant and all detectives appeared but defendant was unable to identify the detectives who allegedly struck him. Lee v. State, 207 Miss. 96, 39 So. 2d 868, 1949 Miss. LEXIS 320 (Miss. 1949).

A defendant in a state criminal proceeding does not lose the right to contend that his conviction was without due process because upon evidence including a coerced confession, by testifying at the trial that the confession was in fact never made. Lee v. State, 207 Miss. 96, 39 So. 2d 868, 1949 Miss. LEXIS 320 (Miss. 1949).

200. –Burden of proof, confessions.

Prosecution shoulders burden of proving beyond reasonable doubt that defendant’s confession was voluntary. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

Prosecution’s burden of showing that confession was voluntary is met and prima facie case made out by testimony of officer, or other persons having knowledge of facts, that confession was voluntarily made without threats, coercion, or offer of reward. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

Where the State has laid the “proper predicate” for admission of a defendant’s confession, the onus is then on the defendant to provide other evidence or testimony on the issue of voluntariness to rebut the State’s assertion. Haymer v. State, 613 So. 2d 837, 1993 Miss. LEXIS 32 (Miss. 1993).

Where a defendant objects to the prosecution’s use of a confession at trial as evidence against him or her, the prosecution bears the burden of proving beyond a reasonable doubt each fact which is prerequisite to admissibility. Kirkland v. State, 559 So. 2d 1046, 1990 Miss. LEXIS 200 (Miss. 1990).

201. Right to counsel – In general.

Defendant’s right to counsel was not violated by law enforcement officers’ use of defendant’s wife as confidential informant, absent showing that wife communicated the substance of defendant’s conversations and thereby created a realistic possibility of injury to defendant or benefit to the State. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

State constitution’s right to counsel embraces all rights guaranteed to criminally accused defendant by the Sixth Amendment. Triplett v. State, 666 So. 2d 1356, 1995 Miss. LEXIS 597 (Miss. 1995).

The Sixth Amendment does give a criminal defendant a right to choose his or her counsel, but that right is not absolute. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

Defendant’s right to counsel was not violated, although trial judge ordered court-appointed counsel to proceed instead of defendant’s hired counsel, since judge made decision based on hired counsel’s unpreparedness, and court allowed hired counsel to assist and even participate in trial. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

Representation by a legal intern, acting under authority of §73-3-207, does not constitute the actual assistance of counsel guaranteed by the Constitution. Benbow v. State, 614 So. 2d 398, 1993 Miss. LEXIS 57 (Miss. 1993).

A defendant’s right to have counsel present during interrogation was respected and his confession was admissible, where the defendant was given the opportunity to confer with his attorney who advised him to confess, even though the defendant only conferred with his attorney by telephone; there is no reason on principle why telephonic access to counsel is legally less significant than “eyeball-to-eyeball” access. Riddle v. State, 580 So. 2d 1195, 1991 Miss. LEXIS 301 (Miss. 1991).

It is not the duty of law enforcement officers and prosecutors, nor the function of the courts, to insist that a person accused of a crime actually confer with an attorney before talking about the crime nor is there any prescribed procedure or form to be followed in the waiver of the right to such assistance. Berry v. State, 575 So. 2d 1, 1990 Miss. LEXIS 849 (Miss. 1990), cert. denied, 500 U.S. 928, 111 S. Ct. 2042, 114 L. Ed. 2d 126, 1991 U.S. LEXIS 2673 (U.S. 1991).

A trial judge’s failure to recess and adjourn at reasonable times did not deny the defendant the effective assistance of counsel where the record failed to reveal any evidence of old age, illness, fatigue or exhaustion that affected the defense counsel’s performance. Lanier v. State, 533 So. 2d 473, 1988 Miss. LEXIS 523 (Miss. 1988).

Failure to provide counsel for a defendant while a crime of rape was under investigation by the police and he was interrogated in connection with the offense was not a violation of his constitutional rights when no attempt was made by the prosecution to use in evidence any confession, admission, or statement of any kind extracted from the defendant after his arrest. Davis v. State, 204 So. 2d 270, 1967 Miss. LEXIS 1188 (Miss. 1967), rev'd, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676, 1969 U.S. LEXIS 1869 (U.S. 1969).

The Fourteenth Amendment secures to a defendant in state prosecutions the right to a fair opportunity to arrange for counsel of his own choice. Watson v. State, 196 So. 2d 893, 1967 Miss. LEXIS 1502 (Miss. 1967).

The Sixth Amendment to the Federal Constitution provides that accused in a criminal prosecution shall have the assistance of counsel for his defense, and the Sixth Amendment is applied to state prosecutions through the Fourteenth Amendment. Watson v. State, 196 So. 2d 893, 1967 Miss. LEXIS 1502 (Miss. 1967).

The denial to the accused indicted for murder of representation by counsel who had conferred with him prior to the trial was a denial of a fundamental and not a technical right, and prejudice is presumed. McKenzie v. State, 233 Miss. 216, 101 So. 2d 651, 1958 Miss. LEXIS 374 (Miss. 1958).

In a case decided prior to decision of the Supreme Court of the United States in Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A.L.R.2d 733, it was said that due process clause of this amendment does not of its own force require tender of assistance of counsel to one charged in state court with non-capital crime and such tender is not essential to due process where record does not show whether accused was unable to employ attorney or requested trial judge to provide one and defendant’s conduct of his own defense clearly indicated his appreciation of what was needed to develop case on his own behalf. Odom v. State, 205 Miss. 572, 37 So. 2d 300, 1948 Miss. LEXIS 221 (Miss. 1948), cert. denied, 336 U.S. 932, 69 S. Ct. 747, 93 L. Ed. 1092, 1949 U.S. LEXIS 2611 (U.S. 1949).

202. –Probationers and parolees, right to counsel.

Probationers and parolees do not “have, per se, a right to counsel at revocation hearings.” Whether probationers have a right to counsel must be answered “on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system.” Riely v. State, 562 So. 2d 1206, 1990 Miss. LEXIS 240 (Miss. 1990).

A probationer was not deprived of the right to counsel at his probation revocation hearings in violation of his constitutional rights where the circuit court did not actually “disallow” the probationer to have legal representation but merely refused to continue the hearing in response to his belated request for more time to obtain counsel, the case was not “complex or otherwise difficult to develop,” and counsel was provided upon the probationer’s request prior to the fourth hearing before the circuit court and prior to his appeal to the Supreme Court. Riely v. State, 562 So. 2d 1206, 1990 Miss. LEXIS 240 (Miss. 1990).

203. –Post-conviction proceedings, right to counsel.

A trial court did not err in failing to sua sponte appoint counsel for a post-conviction relief petitioner at the evidentiary hearing, in spite of the petitioner’s contention that it was clear that he lacked knowledge and understanding of the proceedings being conducted by the court. A criminal defendant has neither a state nor federal constitutional right to appointed counsel in post-conviction proceedings. Additionally, the appointment of counsel at an evidentiary hearing is discretionary with the trial judge by virtue of §99-39-23(1). Moore v. State, 587 So. 2d 1193, 1991 Miss. LEXIS 708 (Miss. 1991).

Sixth and Fourteenth Amendments’ right of counsel to an accused no longer applies after conviction upon appeal. Neal v. State, 422 So. 2d 747, 1982 Miss. LEXIS 2319 (Miss. 1982).

Court-appointed attorneys were entitled to be relieved of any further responsibility in a prosecution for capital murder, where they represented defendant during his trial which resulted in a death penalty and further represented him on his appeal to the Mississippi Supreme Court, which resulted in the affirmance of the judgment. King v. State, 423 So. 2d 121, 1982 Miss. LEXIS 2376 (Miss. 1982).

204. –Pro se or hybrid representation, right to counsel.

While it was error to not make a determination on whether a father was entitled to appointed counsel before allowing him to proceed pro se, the error was harmless because he was given a fair and adequate hearing, and the presence of an attorney would not have made a difference; the father received adequate notice of the pending adoption proceeding and was present and actively involved at all stages of the proceedings. Blakeney v. McRee, 188 So.3d 1154, 2016 Miss. LEXIS 87 (Miss. 2016).

In determining whether a trial court granted “self-representation” or “hybrid representation” to a defendant, and thus whether a waiver of the right to counsel was necessary, the factors to be considered include: (1) the defendant’s accessibility to counsel; (2) whether and how often the defendant consulted with counsel up to the point of the request; (3) the stage of trial at which the defendant requested a participatory role; (4) the magnitude of the role the defendant desired to assume; (5) whether the trial court encouraged immediate and constant accessibility of counsel; and (6) the nature and extent of assistance of counsel which had been provided up to the point of the request, including both substantive and procedural aid. Metcalf v. State, 629 So. 2d 558, 1993 Miss. LEXIS 563 (Miss. 1993).

A waiver of counsel inquiry was not required before permitting a defendant to represent himself at trial where the defendant requested and was provided with the assistance of counsel throughout the entire trial process in the form of a “hybrid representation.” Metcalf v. State, 629 So. 2d 558, 1993 Miss. LEXIS 563 (Miss. 1993).

A criminal defense counsel did not render constitutionally ineffective assistance of counsel where the defendant requested during trial that the defense counsel be dismissed but the court denied the request, and thereafter the defendant acted pro se with the attorney present and ready and willing to assist the defendant in the case, and therefore the attorney, as stand-by counsel, was without authority, discretion or control. Estelle v. State, 558 So. 2d 843, 1990 Miss. LEXIS 153 (Miss. 1990).

205. –Joint representation, right to counsel.

The fact that the defendant’s wife, indicted as an accessory to the burglaries for which he was indicted, had competent counsel who included him in their conferences with his wife, did not satisfy the mandatory constitutional requirement that one charged with a felony is entitled to be represented by counsel; and this was particularly true where the interests of the defendant and his wife were antagonistic, and it would be impossible for her attorneys to defend him with fidelity. Scott v. State, 190 So. 2d 875, 1966 Miss. LEXIS 1412 (Miss. 1966).

206. –Conflicts of interest, right to counsel.

Effective right of counsel encompasses the right to representation by attorney who does not owe conflicting duties to other defendants, and undivided loyalty of defense counsel is essential to the due process guarantee of the Fifth Amendment. Perry v. State, 682 So. 2d 1027, 1996 Miss. LEXIS 572 (Miss. 1996).

There was no actual conflict arising from fact that defense counsel had previously represented government rebuttal witness in unrelated prosecutions, where subject of cross-examination was witness’ prior deals with state to provide testimony in exchange for plea agreements. Perry v. State, 682 So. 2d 1027, 1996 Miss. LEXIS 572 (Miss. 1996).

Prejudice is presumed only if defendant demonstrates that counsel actively represented conflicting interests and that actual conflict of interest adversely affected his lawyer’s performance. Perry v. State, 682 So. 2d 1027, 1996 Miss. LEXIS 572 (Miss. 1996).

Defense counsel’s representation was not adversely affected by fact that he had previously represented government rebuttal witness in unrelated prosecutions, where counsel was not “suddenly curtailed” in his cross-examination when subject of prior deals with prosecutors arose but, rather, proceeded onward to question witness in detail about his motivation for prior testimony in another case as well as his motivation for testifying against defendant in the present case. Perry v. State, 682 So. 2d 1027, 1996 Miss. LEXIS 572 (Miss. 1996).

Where no actual conflict of interest is present, defendant must demonstrate prejudice and show reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Perry v. State, 682 So. 2d 1027, 1996 Miss. LEXIS 572 (Miss. 1996).

Defendant was not prejudiced by any adverse performance of defense counsel due to fact that he had previously represented government rebuttal witness in unrelated prosecutions; even assuming that counsel conclusively established that witness’s sole motivation in testifying was to receive a reduced sentence pursuant to agreement with the State, there remained the vast amount of evidence presented during state’s case in chief. Perry v. State, 682 So. 2d 1027, 1996 Miss. LEXIS 572 (Miss. 1996).

Actual conflict of interest, violating defendant’s right to effective assistance of counsel, resulted from public defender’s representation of both codefendant during plea negotiations and defendant at trial in prosecution originating from simultaneous double sale of drugs. Smith v. State, 666 So. 2d 810, 1995 Miss. LEXIS 628 (Miss. 1995).

Prejudice from attorney’s conflict of interest is presumed only if defendant demonstrates that counsel actively represented conflicting interests and that actual conflict of interest adversely affected attorney’s performance. Smith v. State, 666 So. 2d 810, 1995 Miss. LEXIS 628 (Miss. 1995).

Prejudice from actual conflict of interest, which existed when public defender provided dual representation to both defendant and codefendant, existed when public defender prematurely terminated cross-examination of codefendant. Smith v. State, 666 So. 2d 810, 1995 Miss. LEXIS 628 (Miss. 1995).

Prosecutor and trial court have responsibility to notify defendant concerning potential conflicts of interest by defense counsel. Smith v. State, 666 So. 2d 810, 1995 Miss. LEXIS 628 (Miss. 1995).

Undivided loyalty of defense counsel is essential to due process. Smith v. State, 666 So. 2d 810, 1995 Miss. LEXIS 628 (Miss. 1995).

Mere fact that counsel for capital murder defendant shared office space with prosecutor who prosecuted defendant’s preliminary hearing was not sufficient to demonstrate actual conflict of interest causing prejudice to defendant in violation of defendant’s right to counsel. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

In a prosecution for conspiracy to distribute cocaine, a defendant’s constitutional right to the effective assistance of counsel was violated due to an irreparable conflict of interest where the attorney who represented the defendant had also been counsel for the State’s main witness in the trial against the witness for the same offense. Littlejohn v. State, 593 So. 2d 20, 1992 Miss. LEXIS 8 (Miss. 1992).

The right to effective assistance of counsel encompasses 2 broad principals–minimum competence and loyal assistance. The right to conflict free counsel is attendant to the Sixth Amendment right to effective assistance of counsel. It is incumbent upon courts which confront and which are alerted to possible conflicts of interest to take the necessary steps to ascertain whether the conflict warrants separate counsel. Thus, where a defense attorney represented 2 codefendants during the sentencing phase of the judicial proceedings and it could easily have been anticipated that the attorney would argue that the actions of one of the codefendants should not be attributed to the other or that the attorney would opt to not say or do anything in litigation for fear that to do so would characterize one codefendant as being more culpable than the other, the failure of the trial court to disclose to the codefendants the potential dangers of joint representation by counsel laboring under a conflict resulted in a violation of the right to effective assistance of counsel, and therefore a new sentencing hearing was warranted. Armstrong v. State, 573 So. 2d 1329, 1990 Miss. LEXIS 824 (Miss. 1990).

There is nothing in the law of this state which prohibits the partner of a county attorney from representing a defendant in a criminal proceeding outside the county where the county attorney serves, and the denial of defendant’s counsel of choice on such grounds was a violation of his Sixth and Fourteenth Amendment rights. Frackman v. Deposit Guaranty Nat'l Bank, 296 So. 2d 695, 1974 Miss. LEXIS 1532 (Miss. 1974).

207. –Indigent defendant, right to counsel.

An indigent defendant charged with a felony is entitled to be represented by counsel irrespective of whether he pleads guilty or is tried on a not guilty plea. Scott v. State, 190 So. 2d 875, 1966 Miss. LEXIS 1412 (Miss. 1966).

Where the record indicates beyond question that the defendant, charged with assault and battery, was indigent, that he desired an attorney to represent him, and that he did not consciously and intelligently waive such appointment it was reversible error to force him to trial on the charge without an attorney. Mississippi State Highway Com. v. Glenn, 178 So. 2d 677 (Miss. 1965).

The duty of the court to assign counsel to defend one accused with a capital crime, who is unable to employ counsel, was not intended to be a mere formality, and means more than a mere appointment of counsel. McKenzie v. State, 233 Miss. 216, 101 So. 2d 651, 1958 Miss. LEXIS 374 (Miss. 1958).

208. –Time right attaches, right to counsel.

Right to counsel, both federal and state varieties, attaches at point in time when initial appearance before magistrate ought to have been held. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

Defendant’s Sixth Amendment right to counsel with respect to murder charge attached when he was arrested by warrant while already in jail for another offense. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

209. –Invocation of right to counsel.

Defendant’s capital murder convictions were proper where his Fifth, Sixth, and Fourteenth Amendment rights to counsel and to remain silent were not violated. He made no objection at trial; there was no testimony concerning defendant’s use of counsel or his right to remain silent; and the State’s questioning was designed solely to elicit a chronological version of the events involved in the investigation of the murders not the fact that the defendant requested an attorney during the State’s investigation. Rubenstein v. State, 2005 Miss. LEXIS 789 (Miss. Dec. 1, 2005), op. withdrawn, 2006 Miss. LEXIS 424 (Miss. Aug. 10, 2006), sub. op., 941 So. 2d 735, 2006 Miss. LEXIS 411 (Miss. 2006).

Defendant’s conviction for capital murder was proper where he was not denied his right to counsel because, at the time of his confession, he was merely a suspect who had been brought to the sheriff’s department for questioning and thus, his U.S. Const. amend. VI right to counsel had not yet attached. Further, as his confession occurred during a custodial interrogation, he had a U.S. Const. amends. V and XIV right to have counsel present, but the lower court found the testimony of the officers that defendant had not invoked his right to counsel more credible than defendant’s assertion that he had done so. Brink v. State, 888 So. 2d 437, 2004 Miss. App. LEXIS 559 (Miss. Ct. App.), cert. denied, 888 So. 2d 1177, 2004 Miss. LEXIS 1475 (Miss. 2004), cert. denied, 544 U.S. 986, 125 S. Ct. 1858, 161 L. Ed. 2d 744, 2005 U.S. LEXIS 3129 (U.S. 2005).

Once Sixth Amendment right to counsel has attached and been asserted, state must honor that right by doing more than simply not preventing accused from obtaining the assistance of counsel; Sixth Amendment also imposes on state an affirmative obligation to respect and preserve accused’s choice to seek this assistance. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

Statements made by a defendant’s sister in the defendant’s presence that she intended to get an attorney were not sufficient to trigger the defendant’s right to counsel during police questioning and to preclude any subsequent waiver on his part where the record was devoid of any evidence that the defendant attempted to adopt, or even understood, the statements made by his sister. Lee v. State, 631 So. 2d 824, 1994 Miss. LEXIS 80 (Miss. 1994).

Requesting assistance of counsel at an initial appearance or bail hearing to defend a pending charge is not the same type of invocation of counsel contemplated by the Fifth Amendment Miranda-Edwards interest against compulsory self-incrimination, which is associated with police-initiated custodial interrogations; in order to invoke the Fifth Amendment right against compulsory self-incrimination, some “expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police” is required. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

An accused invoked her Fifth Amendment right to counsel at the time of her arrest when she asked for an attorney and stated that she was not going to sign any papers or answer any questions without having a lawyer present; the accused invoked her Sixth Amendment right to counsel and the state counterpart right secured by Article 3, § 26 of the Mississippi Constitution at her initial appearance when she indicated a desire for representation and an interest in contacting her family to ascertain their progress in hiring a lawyer for her. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

A defendant’s question during interrogation–“Don’t you think I need a lawyer?”–constituted an ambiguous request for an attorney, requiring the officers to cease interrogation except for that intended to clarify the defendant’s request. The officers’ response to the defendant’s ambiguous request, which culminated in the defendant’s decision to waive his rights, did not exceed constitutional parameters where the officers responded by twice explaining the defendant’s option to exercise his Miranda rights or to relate “his side of the story.” Holland v. State, 587 So. 2d 848, 1991 Miss. LEXIS 648 (Miss. 1991).

When an accused makes an equivocal statement suggesting a request for counsel, the interrogation may only continue “on the narrow road” to ascertain the meaning of the equivocal statement. The interrogating officer has an affirmative duty to attempt to clarify the request before proceeding with the substance of the interrogation; the officer’s subsequent finding will determine whether or not interrogation may continue. Kuykendall v. State, 585 So. 2d 773, 1991 Miss. LEXIS 647 (Miss. 1991).

210. –Interrogation continued after counsel has been requested, right to counsel.

Defendant’s statement to police officers during an interrogation should have been suppressed because the State of Mississippi failed to adequately prove that defendant initiated a conversation with the police officers after defendant invoked defendant’s right to have counsel present, and, even if defendant did initiate the conversation, the State failed to prove beyond reasonable doubt that defendant’s statement was knowing and intelligent. Collins v. State, 172 So.3d 724, 2015 Miss. LEXIS 435 (Miss. 2015).

Confronting a suspect with the incriminating evidence compiled against him after he has invoked his right to counsel, and without any initiation on the part of the suspect, is precisely the kind of psychological ploy that definition of interrogation in Innis was designed to prohibit. Pannell v. State, 7 So.3d 277, 2008 Miss. App. LEXIS 550 (Miss. Ct. App. 2008), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 154 (Miss. 2009).

Defendant’s right to counsel was violated by police-initiated interrogation after he asserted his right to counsel because an officer showed defendant the evidence file in an attempt to have him reconsider his request for counsel; a tactic that proved successful as defendant was not prompted to speak until he reviewed the evidence. Because the actions of the officer constituted police-initiated custodial interrogation, a valid waiver could not be established simply by showing that defendant responded to the interrogation. Pannell v. State, 7 So.3d 277, 2008 Miss. App. LEXIS 550 (Miss. Ct. App. 2008), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 154 (Miss. 2009).

A trial court erred in admitting a defendant’s confession evidence since the confession was tainted by the constitutional violation of the defendant’s Sixth Amendment right to counsel and rights secured by Article 3, § 26 of the Mississippi Constitution, where the defendant “waived her rights” and made the confession after a sheriff department investigator and deputy initiated contact with her within less than 4 hours after she invoked the right to counsel at her initial appearance; the confession was also tainted by violation of the defendant’s Fifth and Fourteenth Amendment rights since the defendant had also requested a lawyer and declined to waive any rights at the time of her arrest. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

Once an accused has asserted the Sixth Amendment right to counsel at arraignment or a similar proceeding, the police may not initiate interrogation; if the police initiate interrogation after the right has been asserted, any waiver by the defendant for that interrogation is invalid. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

The rule in Edwards v. Arizona (1981) 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, reh. den. (1981) 452 U.S. 973, 69 L. Ed. 2d 984, 101 S. Ct. 3128 or Arizona v. Roberson (1988) 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093 concerning the interrogation of an accused on an unrelated charge after the Fifth Amendment right to counsel has been asserted, does not apply when the accused does not remain in continuous custody; a non-contrived, non-pretextual break in custody where the accused has reasonable opportunity to contact his or her attorney dissolves an Edwards or Roberson claim. Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

A trial court’s admission of a defendant’s confession into evidence violated the defendant’s Fifth and Fourth Amendment rights where the defendant had invoked her right to counsel and 2 officers subsequently told her that a codefendant had made a statement implicating her in their criminal activity, after which the defendant wrote a statement admitting to the crimes. The admission of the confession in violation of the defendant’s constitutional rights was not harmless error where the confession in question was the only confession available. Balfour v. State, 580 So. 2d 1203, 1991 Miss. LEXIS 302 (Miss. 1991).

When a suspect requests counsel while being informed of his or her rights, the police should complete the reading of the suspect’s rights, then ask the suspect to state clearly what he or she elects to do. If the suspect indicates that he or she wishes to remain silent, then the interrogation must cease. Berry v. State, 575 So. 2d 1, 1990 Miss. LEXIS 849 (Miss. 1990), cert. denied, 500 U.S. 928, 111 S. Ct. 2042, 114 L. Ed. 2d 126, 1991 U.S. LEXIS 2673 (U.S. 1991).

The explanation of lineup procedures did not constitute improper further interrogation of the defendant after he invoked his right to counsel, where the lineup procedures were not explained for the purpose of eliciting incriminating statements from the defendant, and the explanation of the lineup procedures did not constitute words or actions reasonably likely to elicit an incriminating response. Wilson v. State, 574 So. 2d 1324, 1990 Miss. LEXIS 845 (Miss. 1990).

211. –Critical stage, right to counsel.

Only an actual confrontation with the defendant at a lineup is the critical stage which requires the right to counsel. Thus, the presence of counsel was not required at a post-lineup encounter between the witness and the police, at which the defendant was not present, since there was no “actual confrontation” between the defendant and the witness. Wilson v. State, 574 So. 2d 1324, 1990 Miss. LEXIS 845 (Miss. 1990).

The period immediately after arrest for intoxication is not a “critical stage” of the proceedings for purposes of the right to counsel. Ewing v. State, 300 So. 2d 916, 1974 Miss. LEXIS 1649 (Miss. 1974).

Although it is true that the preliminary hearing in a criminal case is a critical stage in the legal proceedings requiring the aid of counsel, such determination should not be enlarged to include a transcript of the preliminary proceedings in the absence of statutory authority therefor and particularly so when it does not appear that the lack of a transcript prejudiced the defendant. Henderson v. State, 284 So. 2d 42, 1973 Miss. LEXIS 1238 (Miss. 1973).

An order waiving Youth Court jurisdiction over a 15-year-old minor charged with the offense of burglary which does not affirmatively show that a hearing was had in the presence of the minor and his parents, that the minor was represented by counsel, or that the right to counsel was properly waived, is fatally defective. Hopkins v. State, 209 So. 2d 841, 1968 Miss. LEXIS 1480 (Miss. 1968).

The court’s refusal to permit the defendant in a murder trial to confer with her counsel during a two-hour recess, immediately following the conclusion of her direct examination in her own behalf, was an unconstitutional denial of her right to counsel at a crucial stage of the trial, was highly prejudicial, and constituted reversible error. Pendergraft v. State, 191 So. 2d 830, 1966 Miss. LEXIS 1224 (Miss. 1966).

212. –Trial preparation time, right to counsel.

The right to counsel extends to the preparation for trial as well as the trial itself. Watson v. State, 196 So. 2d 893, 1967 Miss. LEXIS 1502 (Miss. 1967).

It is the duty of the court to see that one accused of a capital crime is represented by counsel, and where it became known to the court prior to the beginning of the trial that counsel had not conferred and advised with the accused, the court should have taken appropriate steps to assure to the accused the advantage guaranteed by him under Code 1942 § 2505, and failure to do so was failure to follow the mandatory provisions of the statute and constituted a denial of due process. McKenzie v. State, 233 Miss. 216, 101 So. 2d 651, 1958 Miss. LEXIS 374 (Miss. 1958).

Under Code 1942 § 2505, the right of the accused to have counsel, and the requirement that such counsel shall have access to the accused, includes the right on the part of the accused to be represented by counsel who have conferred with him prior to trial so that his case may be properly prepared. McKenzie v. State, 233 Miss. 216, 101 So. 2d 651, 1958 Miss. LEXIS 374 (Miss. 1958).

Where it was shown at the date of the trial that although nine court appointed defense attorneys had been appointed in ample time therefor, they had failed to confer with the accused, who was indicted for murder, either because the accused was in jail outside the county or otherwise, the accused’s conviction, carrying with it the death penalty, was reversed. McKenzie v. State, 233 Miss. 216, 101 So. 2d 651, 1958 Miss. LEXIS 374 (Miss. 1958).

Where, following the granting to the accused of a continuance for one day for the purpose of obtaining counsel, the court on the next day denied accused’s request for a further continuance for the same purpose, accused, who was thereupon tried and convicted upon a burglary charge, was not denied due process of law, since it appeared that the accused had had ample notice of the charge against him and opportunity to employ defense counsel if he so desired. Poole v. State, 229 Miss. 176, 90 So. 2d 212, 1956 Miss. LEXIS 598 (Miss. 1956), cert. denied, 353 U.S. 988, 77 S. Ct. 1286, 1 L. Ed. 2d 1144, 1957 U.S. LEXIS 845 (U.S. 1957).

213. –Refusal to sign waiver form, right to counsel.

An accused’s refusal to sign a waiver of rights form does not in and of itself constitute a demand for an attorney. Thorson v. State, 653 So. 2d 876, 1994 Miss. LEXIS 600 (Miss. 1994).

214. –Waiver, right to counsel.

In a case in which defendant argued that the trial court should have suppressed her statements because they were taken in violation of her constitutional right to counsel. The record supported a finding that defendant received the Miranda warning, that she knowingly and intelligently waived the rights, and that she freely and voluntarily made the statements, and, pursuant to the Davis decision, she failed to make an unambiguous, unequivocal request for an attorney. Barnes v. State, 30 So.3d 313, 2010 Miss. LEXIS 104 (Miss. 2010).

Even if an accused has procured an attorney, the accused may still waive the right to have the lawyer present during any police questioning; nothing in the Sixth Amendment prevents a suspect charged with a crime and represented by counsel from voluntarily choosing, on his or her own, to speak with police in the absence of an attorney. Mettetal v. State, 602 So. 2d 864, 1992 Miss. LEXIS 413 (Miss. 1992).

The evidence was sufficient to support a finding that a defendant had knowingly and voluntarily waived his right to assistance of counsel when he made a statement to the police, even though the defendant testified that he had repeatedly requested an attorney and was not provided with one, where the defendant admitted that he understood his rights, and all of his contentions that he had made repeated requests for counsel were specifically refuted by 3 law enforcement officers. Mettetal v. State, 602 So. 2d 864, 1992 Miss. LEXIS 413 (Miss. 1992).

If a defendant has not asserted his or her Fifth Amendment right to counsel, the fact that the defendant is appointed counsel to protect his or her Sixth Amendment right does not preclude interrogation on unrelated offenses. As long as the defendant is given the Miranda warning and makes a knowing and voluntary waiver, any statements obtained during the interrogation are admissible. Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

A defendant knowingly and intelligently waived the right to counsel, and his subsequent statement was freely and voluntarily given, where the defendant initially invoked his constitutional right to counsel but indicated that he no longer wished to contact an attorney when given the opportunity to call, the defendant then indicated that he was willing to enter into a discussion of the crime, and the defendant was again advised of his Miranda rights, after which he confessed. The defendant “initiated” when he indicated that he no longer wished to telephone his attorneys; one cannot halt an inquiry by first indicating a desire to call an attorney, then declining to do so when offered the opportunity. Berry v. State, 575 So. 2d 1, 1990 Miss. LEXIS 849 (Miss. 1990), cert. denied, 500 U.S. 928, 111 S. Ct. 2042, 114 L. Ed. 2d 126, 1991 U.S. LEXIS 2673 (U.S. 1991).

A writ of error coram nobis was granted and the original judgments against the defendant entered on his pleas of guilty to the crime of burglary were vacated and his case remanded for a new trial where he did not have counsel for his own defense, and had not competently and intelligently waived the right to counsel. Scott v. State, 190 So. 2d 875, 1966 Miss. LEXIS 1412 (Miss. 1966).

215. –Sufficiency of evidence of denial of right to counsel.

A defendant was not denied effective assistance of counsel because he was not represented by counsel for approximately 2 months following his arraignment where he made no showing that he experienced any adverse effect or “untoward consequence flowing directly from denial of counsel” and there was no indication that the State took advantage of the situation or that any further proceedings were conducted. Johnson v. State, 631 So. 2d 185, 1994 Miss. LEXIS 31 (Miss. 1994).

Earlier it had been said that since the due process clause of the Fourteenth Amendment to the United States Constitution does not require states to afford defendants assistance of counsel in noncapital criminal cases, the contention of the defendant, who was accused of grand larceny, a noncapital felony, that he was denied due process of law by the failure and refusal of the court to appoint counsel for him was without merit. Fogle v. State, 231 Miss. 746, 97 So. 2d 645, 1957 Miss. LEXIS 561 (Miss. 1957).

216. Ineffective assistance of counsel–In general.

While the disciplinary proceedings to which attorneys were subject were quasi-criminal in nature, there was no claim for ineffective assistance of counsel; a bar disciplinary proceeding was not sufficiently criminal in nature to trigger the protection of Strickland. Goeldner v. Miss. Bar, 891 So. 2d 130, 2004 Miss. LEXIS 758 (Miss. 2004).

A Louisiana attorney’s failure to comply with court rules concerning appearances by foreign attorneys did not, per se, create ineffective assistance of counsel. Hubbard v. State, 628 So. 2d 1386, 1993 Miss. LEXIS 570 (Miss. 1993).

It is not per se professionally unreasonable for an attorney to allow a client to talk to the police and give a statement; where the evidence is otherwise overwhelming, confession may be a significant step toward prompt disposition of the case and mitigation of sentence. Thus, a defendant was not denied effective assistance of counsel on the ground that his attorney advised him to talk to the police, even though the attorney advised the defendant by telephone and did not go to the police station or further assist the defendant, where it appeared that the attorney “brought to bear independent scrutiny and judgment” before advising the defendant, and the evidence against the defendant was overwhelming. Riddle v. State, 580 So. 2d 1195, 1991 Miss. LEXIS 301 (Miss. 1991).

Ineffectiveness of counsel should not be excused simply because counsel has been privately retained. Therefore, that portion of Bennett v. State 293 So. 2d 1 (Miss. 1974), and any other case, which attempts to draw a relevant distinction between court-appointed and retained counsel where a defendant’s right to appeal and effective assistance of counsel is concerned would be expressly overruled. Triplett v. State, 579 So. 2d 555, 1991 Miss. LEXIS 251 (Miss. 1991).

A defendant was not denied his right to effective assistance of counsel on the ground that his attorney gave the prosecution permission to interview the defense witnesses while allowing the prosecution to disallow the defendant from taking a deposition of the victim, since the defendant had no right to such a pre-trial deposition and the trial court lacked the authority to require the victim to talk with defense counsel where the victim was unwilling to do so; the defendant’s counsel could not be faulted as ineffective for failing to secure that which the defendant had no right to obtain. Jordan v. State, 577 So. 2d 368, 1990 Miss. LEXIS 785 (Miss. 1990).

A defense attorney’s failure to object when a prosecution witness, who was a nurse, was sent into the jury room to attend to a juror who had become ill, did not constitute ineffective assistance of counsel where no allegation or facts were presented as to how the attorney’s failure to object resulted in any significant prejudice to the defendant at his trial. Jordan v. State, 577 So. 2d 368, 1990 Miss. LEXIS 785 (Miss. 1990).

Argument that trial counsel did not have requisite legal experience to properly try criminal case was rejected as basis for claim of ineffective assistance of counsel where trial counsel had 2 1/2 years experience and had tried 5 criminal cases, none of which were capital cases, at time of first trial of defendant. Level of criminal trial experience is one factor to be considered in determining whether there was effective assistance of counsel. Wiley v. State, 517 So. 2d 1373, 1987 Miss. LEXIS 2915 (Miss. 1987), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 610, 1988 U.S. LEXIS 2458 (U.S. 1988).

217. –Tests, ineffective assistance of counsel.

Nothing in the record affirmatively showed constitutional ineffectiveness and defendant failed to show prejudice; thus, defendant failed to meet his Strickland burden. Givens v. State, 967 So. 2d 1, 2007 Miss. LEXIS 494 (Miss. 2007).

Adversarial process protected by Sixth Amendment requires that accused have counsel acting in the role of an advocate, and the right to effective assistance of counsel is the right of accused to require that prosecution’s case survive the crucible of meaningful adversarial testing. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Under Strickland, test to be applied in cases involving alleged ineffectiveness of counsel is (1) whether counsel’s overall performance was deficient and (2) whether deficient performance, if any, prejudiced defense. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Target of appellate scrutiny in evaluating deficiency and prejudice prongs of Strickland test for ineffectiveness of counsel is counsel’s “over-all” performance. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

218. –Time to raise issue, ineffective assistance of counsel.

Under Mississippi law, failure to raise ineffective assistance of counsel claim on direct review does not constitute procedural bar where litigant was represented by same counsel at trial and on direct appeal. Martin v. Maxey, 98 F.3d 844, 1996 U.S. App. LEXIS 28836 (5th Cir. Miss. 1996).

Defendant’s merely raising ineffective assistance of counsel claim was insufficient to surmount procedural bar to his untimely post-conviction petition. Bevill v. State, 669 So. 2d 14, 1996 Miss. LEXIS 70 (Miss. 1996).

Prima facie claim must be stated by defendant in post-conviction petition to lower court in order to obtain evidentiary hearing on merits of ineffective assistance of counsel issue. Robertson v. State, 669 So. 2d 11, 1996 Miss. LEXIS 68 (Miss. 1996).

219. –Trial strategy, ineffective assistance of counsel.

Counsel was not deficient in arguing to jury that justice was not justice unless it was complete justice and that defendant was taking all of the blame when it was not all his, as counsel did not explicitly concede guilt and was merely utilizing trial strategy of creating reasonable doubt that defendant did not commit the crime charged because it was done by others. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Strategic decision to pursue less than all plausible lines of defense will rarely, if ever, be deemed ineffective counsel, if counsel first adequately investigated the rejected alternative. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Counsel for capital murder defendant was not ineffective for failing to request continuance after prosecution called so-called “surprise” witness who subsequently identified defendant, where counsel interviewed witness for 25 minutes during recess called specifically for that purpose, and defendant showed nothing that continuance would have further gained. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Counsel for capital murder defendant was not ineffective for failing to file certain motions, call certain witnesses, ask certain questions, and make certain objections, where counsel’s actions fell within ambit of trial strategy. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Counsel for capital murder defendant was not ineffective for failing to request continuance after State introduced into evidence during sentencing phase 2 prior convictions for manslaughter and attempted rape, where there was no prejudice to defendant, in that the prior convictions were valid and not subject to collateral attack. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Defendant charged with sexual battery and attempted sexual battery was not denied effective assistance of counsel; record was replete with objections lodged by defense counsel, and defendant showed no prejudice from counsel’s decision to refrain from making opening statement, from counsel’s failure to offer instruction on theory of defense, and from counsel’s alleged inadequacy in jury selection. Hughes v. State, 665 So. 2d 852, 1995 Miss. LEXIS 564 (Miss. 1995).

In a prosecution for possession of cocaine with intent to distribute, the defendant was denied his constitutional right to effective assistance of counsel where the defense strategy was to admit guilt to the charge of simple possession of cocaine, but to deny any intent to sell or distribute, the defense counsel failed to object to evidence of the defendant’s past drug sales, which was the most damaging piece of evidence presented, he failed to preserve any objection relating to the sufficiency of the evidence for trial court or appellate review, and the evidence was insufficient as a matter of law to support the charge. Holland v. State, 656 So. 2d 1192, 1995 Miss. LEXIS 261 (Miss. 1995).

A defendant was not denied his right to effective assistance of counsel on the ground that his attorney failed to file any motion for discovery where the defendant provided no evidence to show that the omission was anything other than his attorney’s trial strategy, there was no allegation of critical evidence that may have come to light as a result of discovery, the record did not reflect any surprise to the defendant’s attorney as a result of the State’s case, and the defense attorney was sufficiently familiar with the State’s case and its witnesses that a discovery motion would not have elicited any change in the defense. Ivy v. State, 589 So. 2d 1263, 1991 Miss. LEXIS 802 (Miss. 1991).

An attorney did not render ineffective assistance merely because he did not put the defendant on the witness stand during a hearing on the defendant’s motion to suppress his confession, since the attorney’s decision to keep the defendant off the stand may have been a deliberate trial strategy. Even if the attorney made a mistake, it did not rise to the level of ineffective assistance of counsel necessary to violate the Sixth Amendment right to counsel; there is a strong presumption that an attorney’s performance was within the wide range of reasonable, professional, and acceptable conduct. Mohr v. State, 584 So. 2d 426, 1991 Miss. LEXIS 481 (Miss. 1991).

A defense counsel’s failure to pursue an alibi defense was not unsound trial strategy, and therefore did not constitute ineffective assistance of counsel, where the defendant had admitted to the offenses but challenged the dates in the indictment as being incorrect. Schmitt v. State, 560 So. 2d 148, 1990 Miss. LEXIS 62 (Miss. 1990).

Ineffective assistance of counsel was not shown where defendant argued that counsel made decision to pursue defense of lack of intent to kill, but failed to follow up on this strategic choice, where counsel elicited evidence of defendant’s having “shot up” to negate argument that defendant intended to kill. Wiley v. State, 517 So. 2d 1373, 1987 Miss. LEXIS 2915 (Miss. 1987), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 610, 1988 U.S. LEXIS 2458 (U.S. 1988).

Ineffective assistance of counsel was not shown where defendant complained that counsel made absolutely no investigation of psychological evidence, while defendant submitted psychological evidence showing, inter alia, functional I.Q. of 73, lower academic I.Q., alcoholism, and genuine remorse for crime; as trial strategy, counsel could have judged that psychological report may have been harmful. Wiley v. State, 517 So. 2d 1373, 1987 Miss. LEXIS 2915 (Miss. 1987), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 610, 1988 U.S. LEXIS 2458 (U.S. 1988).

Argument that counsel was ineffective based on opening statement conceding to jury that his client was guilty of crime charged in indictment was rejected because it may have been trial strategy. Candor at guilt phase may help defendant in sentencing phase because attorney who, while sincerely trying to help his client, at same time is open and honest with jury, is more likely to receive sympathetic and open ear in his other arguments. Counsel also argued crime was not capital murder and jurors must therefore return verdict of not guilty. Wiley v. State, 517 So. 2d 1373, 1987 Miss. LEXIS 2915 (Miss. 1987), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 610, 1988 U.S. LEXIS 2458 (U.S. 1988).

220. –Suppression of evidence, ineffective assistance of counsel.

Petitioner’s claim that his counsel failed to adequately argue motion to suppress evidence that was obtained in violation of his Fourth Amendment rights or to raise that issue on appeal would be remanded for district court to consider whether counsel was professionally deficient in failing to successfully move to suppress evidence and to determine whether exclusion of that evidence would have had effect on outcome of petitioner’s case, so as to establish cause and prejudice for procedural default. Martin v. Maxey, 98 F.3d 844, 1996 U.S. App. LEXIS 28836 (5th Cir. Miss. 1996).

221. –Guilty plea, ineffective assistance of counsel.

Valid guilty plea operated as a waiver of all non-jurisdictional rights or defects that were incident to trial; defendant was fully advised of his rights and the maximum sentences he faced if he chose to go to trial, and he was provided a detailed admonishment prior to accepting his guilty plea, such that defendant’s plea was made knowingly, intelligently, and voluntarily and he waived any rights regarding the allegedly coerced confession. Swindoll v. State, 859 So. 2d 1063, 2003 Miss. App. LEXIS 1071 (Miss. Ct. App. 2003).

Defendant who pled guilty to capital murder in order to avoid trial that would have subjected him to possible death sentence failed to show he was prejudiced, as required to support ineffective assistance of counsel claim; only thing that might have been different had case gone to trial was sentence defendant received. Taylor v. State, 682 So. 2d 359, 1996 Miss. LEXIS 532 (Miss. 1996).

Allegations by defendant who had pleaded guilty to charge of capital murder in order to avoid death penalty that sentences received by his accomplices were substantially less than his were insufficient to state claim of ineffective assistance of counsel; record indicated that accomplices, with one exception, were not given extremely reduced sentences as compared to defendant, and prosecutor stated that accomplice who received substantially reduced sentence had been involved in murder to lesser extent than others. Simpson v. State, 678 So. 2d 712, 1996 Miss. LEXIS 413 (Miss. 1996).

Allegation by post-conviction petitioner, who had pleaded guilty to charge of capital murder, that he had received ineffective assistance of counsel on basis that his guilty plea was induced by misrepresentations of his attorney was rebutted by transcript of plea hearing and could be summarily denied without hearing; record indicated that petitioner had remained silent both when given opportunity to inform court of terms of alleged “real plea bargain,” and also when accomplice received shorter sentence. Simpson v. State, 678 So. 2d 712, 1996 Miss. LEXIS 413 (Miss. 1996).

Defendant did not receive ineffective assistance of counsel in entering guilty plea to 2 counts of armed robbery, where counsel gave defendant accurate information about consequences of being found guilty after trial, defendant swore under oath that plea was voluntary, trial court questioned defendant as to voluntariness of plea prior to plea hearing, and defendant had prior experience in dealing with felony charges and was familiar with court proceedings. Roland v. State, 666 So. 2d 747, 1995 Miss. LEXIS 600 (Miss. 1995).

Standard generally applicable to determine claims of ineffective assistance of counsel is also applicable to judge counsel’s performance in entry of guilty plea. Roland v. State, 666 So. 2d 747, 1995 Miss. LEXIS 600 (Miss. 1995).

A defendant who was convicted of armed robbery was entitled to an evidentiary hearing pursuant to §§99-39-13 through99-39-23 on the issue of whether he was afforded ineffective assistance of counsel during the plea process, where the defendant alleged that his attorney erroneously informed him that if he accepted the prosecution’s plea bargain offer of 15 years imprisonment he would be eligible for parole after serving 3 years and 9 months of his sentence, and that he would not have accepted the prosecution’s plea bargain offer had he known that he would be ineligible for parole for 10 years pursuant to §47-7-3(1)(d), which provides that a person convicted of robbery and sentenced to more than 10 years imprisonment shall not be eligible for parole until after serving at least 10 years of the sentence. Alexander v. State, 605 So. 2d 1170, 1992 Miss. LEXIS 573 (Miss. 1992).

A defendant’s complaints of ineffective assistance of counsel in his post-conviction relief motion alleging that his guilty plea was involuntarily made as a result of ineffective assistance of counsel were insufficient as a matter of law where the defendant failed to allege that the asserted errors of his attorney proximately resulted in his guilty plea and that, but for these errors, he would not have entered the plea. Garlotte v. State, 597 So. 2d 641, 1992 Miss. LEXIS 161 (Miss. 1992).

222. Preparation for trial, ineffective assistance of counsel.

In a murder case, defendant was not denied effective assistance of counsel, because the denial of a continuance did not mean that counsel was unprepared, as counsel filed the necessary pretrial motions, conducted a voir dire examination, offered challenges for cause, provided compelling opening and closing statements, objected to the admission of certain evidence, and cross-examined witnesses. Rinehart v. State, 2003 Miss. LEXIS 558 (Miss. Oct. 23, 2003), op. withdrawn, sub. op., 883 So. 2d 573, 2004 Miss. LEXIS 1228 (Miss. 2004).

Defense counsel’s failure to note the race of the jurors on the jury list did not raise an issue under Batson, nor was it ineffective representation, since it related to a matter of trial strategy. Al-Fatah v. State, 856 So. 2d 494, 2003 Miss. App. LEXIS 333 (Miss. Ct. App.), cert. denied, 860 So. 2d 315, 2003 Miss. LEXIS 714 (Miss. 2003).

Defendant who alleges that trial counsel’s failure to investigate constituted ineffectiveness must also state with particularity what investigation would have revealed and specify how it would have altered outcome of trial or how such additional investigation would have significantly aided his cause at trial. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

223. –Admission of evidence, ineffective assistance of counsel.

Defense counsel’s failure to place murder defendant on stand to testify did not constitute ineffective assistance of counsel, where defendant personally waived her right to testify and defendant’s version of events was already before jury. Rhodes v. State, 676 So. 2d 275, 1996 Miss. LEXIS 318 (Miss. 1996).

Counsel for capital murder defendant was not ineffective for failing to object to introduction of defendant’s prior convictions of grand larceny and simple robbery, where both were relevant to aggravating circumstances set forth under capital sentencing statute, and thus objection would have been futile. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Counsel for capital murder defendant was not ineffective for failing to make offer of proof concerning excluded mitigation-of-sentence testimony about defendant’s religious convictions and effect on him of death of his stepchild, where the evidence was adequately established via testimony of other witnesses. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

224. –Objections to evidence or instructions, ineffective assistance of counsel.

Counsel was not ineffective for failing to object to the absence of the word “knowing” in indictment for aggravated assault which charged that defendant wilfully and feloniously caused serious bodily injury. Moore v. State, 676 So. 2d 244, 1996 Miss. LEXIS 328 (Miss. 1996).

In a prosecution for possession of cocaine with intent to distribute, the defendant’s trial counsel was not constitutionally ineffective for failing to object to allegedly inadmissible testimony portraying the defendant as a drug dealer where the attorney’s failure to object to the testimony in question might reasonably have been trial strategy related to a “personal vendetta” defense since the attorney argued from the time of opening statements that a deputy sheriff had a vendetta against the defendant and there was support for the “vendetta” defense throughout the trial record, the attorney could have concluded that any objections to the testimony in question would have magnified the comments to the detriment of the defendant, and the defendant failed to demonstrate any prejudice as there was eyewitness testimony which was “sufficient to have absolutely sealed his fate with the jury.” Edwards v. State, 615 So. 2d 590, 1993 Miss. LEXIS 97 (Miss. 1993).

In a prosecution for possession of cocaine with intent to distribute, the defendant’s trial counsel was not constitutionally ineffective for failing to object to an admission made by the defendant at the scene of his arrest concerning his involvement in trafficking drugs where the admission was unsolicited, voluntary, and spontaneous, and the defendant’s attorney could have reasonably expected any objection to be futile. Edwards v. State, 615 So. 2d 590, 1993 Miss. LEXIS 97 (Miss. 1993).

A burglary defendant was not deprived of his constitutional right to effective assistance of counsel on the ground that his trial counsel failed to object to leading questions about the homes that were burglarized where the questions asked by the prosecutor could have been rephrased to elicit the same testimony, and therefore the defendant did not suffer any disadvantage because of the failure to object. Jackson v. State, 614 So. 2d 965, 1993 Miss. LEXIS 75 (Miss. 1993).

A defendant was denied his right to effective assistance of counsel by his attorney’s failure to object to testimony submitted by the State that his accomplice had been tried and found guilty on the same offense for which the defendant was being tried, since the testimony was highly prejudicial and its admission was reversible error. Johns v. State, 592 So. 2d 86, 1991 Miss. LEXIS 874 (Miss. 1991).

225. –Arguments to jury, ineffective assistance of counsel.

A murder defendant was not denied her Sixth Amendment right to the effective assistance of counsel due to her attorney’s failure to object to statements made by the prosecution in their closing argument, referring to the fact that the victim was not present at trial to explain the events surrounding the killing, since it was reasonable for the prosecution to argue that the victim was no longer in existence in a murder trial in which the jury was required to determine whether the killing was justified. Hiter v. State, 660 So. 2d 961, 1995 Miss. LEXIS 333 (Miss. 1995).

A murder defendant’s trial counsel was not ineffective for arguing that the case was one of self-defense, even though the prosecution witnesses were consistent in testifying that the defendant initiated the confrontation that lead to the victim’s death so that, with the benefit of hindsight, it was apparent that a self-defense argument did not have a strong possibility of success, where the defendant failed to show that his trial counsel’s arguments and strategy were deficient as judged from the time offered, and there was no significant probability that the result would have been different but for the alleged errors of trial counsel since the evidence against the defendant was substantial. Brown v. State, 626 So. 2d 114, 1993 Miss. LEXIS 478 (Miss. 1993).

Claim of ineffective assistance of counsel based on counsel’s failure to object to closing argument of prosecutor at sentencing phase was rejected, such failure to object being presumed to be strategic, and presumption having not been rebutted. Additionally, in light of wide range of permissible argument, it was court’s opinion that arguments were within proper parameters. Wiley v. State, 517 So. 2d 1373, 1987 Miss. LEXIS 2915 (Miss. 1987), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 610, 1988 U.S. LEXIS 2458 (U.S. 1988).

226. –Instructions to jury, ineffective assistance of counsel.

Counsel for capital murder defendant was not ineffective for failing to object to transitional jury instruction stating that jury should not consider instruction defining lesser included offense of murder unless it found that defendant was not guilty of capital murder, where defendant was granted lesser included offense instruction defining crime of murder less than capital, and defendant showed no prejudice flowing from transitional instruction. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Counsel for capital murder defendant was not ineffective for failing to object to jury instruction that the murder was “especially heinous, atrocious and cruel,” where, at time of trial, there was no viable basis under state law for objecting to this instruction. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

A murder defendant was not denied her Sixth Amendment right to the effective assistance of counsel by her attorney’s refusal of a manslaughter instruction, even though there was a strong evidentiary basis for the submission of such an instruction, where the attorney’s decision to refuse a manslaughter instruction coupled with his decision to employ a defense based entirely on self-defense was a calculated trial strategy. Hiter v. State, 660 So. 2d 961, 1995 Miss. LEXIS 333 (Miss. 1995).

A murder defendant was not denied effective assistance of counsel by his attorney’s admission of his guilt of the crime where the evidence of guilt was overwhelming, and the attorney admitted that the defendant was guilty of simple murder, not capital murder, and submitted a lesser-included offense instruction in accordance with the argument. Woodward v. State, 635 So. 2d 805, 1993 Miss. LEXIS 442 (Miss. 1993).

227. –Burden of proof, ineffective assistance of counsel.

Burden is on defendant to prove both prongs of ineffective assistance of counsel test. Taylor v. State, 682 So. 2d 359, 1996 Miss. LEXIS 532 (Miss. 1996).

To establish prejudice, defendant claiming ineffective assistance of counsel must show that there was reasonable probability that, but for counsel’s unprofessional errors, result would have been different. Taylor v. State, 682 So. 2d 359, 1996 Miss. LEXIS 532 (Miss. 1996).

Burden is on defendant to show both prongs of the Strickland test for ineffective assistance of counsel or at least to present prima facie claim as to any deficiencies and the prejudice resulting therefrom. Moore v. State, 676 So. 2d 244, 1996 Miss. LEXIS 328 (Miss. 1996).

If defendant is to be successful on ineffective assistance of counsel claim, he must prove that counsel’s performance was deficient and that deficient performance prejudiced the defense; burden of proving both prongs of the test is on defendant. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Defendant claiming ineffective assistance of counsel must show that there is reasonable probability that, but for the errors, outcome of the case would have been different. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

In order to be successful on ineffective assistance claim, defendant must overcome presumption that defense counsel’s statements were within the realm of reasonable trial tactics. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Burden is on defendant to demonstrate both deficiency and prejudice prongs of Strickland test for ineffectiveness of counsel. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Under prejudice prong of Strickland test for ineffectiveness of counsel, movant must show that there is reasonable probability that, but for counsel’s unprofessional errors, result of proceedings would have been different, with “reasonable probability” being probability sufficient to undermine confidence in outcome. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

To be entitled to evidentiary hearing on merits of ineffectiveness of counsel claim, defendant must establish prima facie claim on both prongs of Strickland test by alleging with specificity and detail that his counsel’s performance was deficient and that the deficient performance prejudiced defense so as to deprive him of fundamentally fair trial. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

To successfully claim ineffective assistance of counsel, defendant must show deficiency of counsel’s performance sufficient to constitute prejudice to defense. Hughes v. State, 665 So. 2d 852, 1995 Miss. LEXIS 564 (Miss. 1995).

A post-conviction relief petitioner, who is seeking to overturn a conviction or sentence on the grounds of ineffective assistance of counsel, must demonstrate factual proof by a preponderance of the evidence of an identifiable lapse by counsel and of some actual adverse impact on the fairness of the trial resulting from that lapse. State v. Tokman, 564 So. 2d 1339, 1990 Miss. LEXIS 232 (Miss. 1990).

In order to prove that he received ineffective assistance of counsel during the guilt phase of a capital murder prosecution, the defendant was required to show deficient performance and that his counsel’s errors were so serious as to deprive him of a fair trial with a reliable result; unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that rendered the result unreliable. State v. Tokman, 564 So. 2d 1339, 1990 Miss. LEXIS 232 (Miss. 1990).

228. –Presumptions, ineffective assistance of counsel.

There is strong, yet rebuttable, presumption that counsel’s conduct falls within wide range of reasonable professional assistance, for purposes of applying Strickland test for ineffectiveness of counsel, as there is presumption that decisions made by defense counsel are strategic. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Burden to demonstrate ineffective assistance of counsel is on defendant, who faces strong but rebuttable presumption that counsel’s performance falls within broad spectrum of reasonable professional assistance. Hughes v. State, 665 So. 2d 852, 1995 Miss. LEXIS 564 (Miss. 1995).

229. –Penalty phase practice and procedure, ineffective assistance of counsel.

Counsel was not deficient for arguing to the jury at the penalty phase “if you want to kill him, kill him,” as counsel was strategically attempting to argue that such a penalty would not punish or teach a lesson to the people who were primarily responsible for defendant’s shortcomings, including his mother, his grandmother, and society. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Counsel’s closing argument at penalty phase of capital murder prosecution in which he told the jurors “if you want to sentence him to death, don’t let me persuade you not to. If you don’t want to sentence him to death, don’t let the District Attorney persuade you to” was reasonable trial strategy encouraging jurors to make up their own minds when determining penalties without being influenced by either party. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

A capital murder defendant was denied effective assistance of counsel at the penalty phase where his attorneys presented almost no facts in mitigation upon which the jury could have acted to spare the defendant’s life, they failed to make the most of the available evidence in mitigation, and in closing argument one of the defendant’s attorneys stated that the only way the jury could spare the defendant’s life was on “redeeming love,” which was not one of the factors which the jury could have considered under the court’s instructions. Woodward v. State, 635 So. 2d 805, 1993 Miss. LEXIS 442 (Miss. 1993).

A defense counsel’s performance at the sentencing phase of a capital murder prosecution constituted ineffective assistance of counsel where the defendant faced a potential death penalty, and the defense counsel failed to conduct any investigation at all in a search for mitigation evidence; the defense counsel conducted little or no investigation into the defendant’s background, he spent negligible time interviewing the defendant and preparing a defense, he made no effort to contact or interview any potential character witnesses other than the defendant’s mother who was contacted only after the trial had commenced, and the lack of preparation left the defense counsel unable to blunt the prosecution’s forceful case. At a minimum, counsel has a duty to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case; it is critical that mitigating evidence be presented at capital sentencing proceedings. Psychiatric and psychological evidence is crucial to the defense of a capital murder case, and there is a critical interrelation between expert psychiatric assistance and minimally effective representation. Thus, the defendant’s counsel was unreasonable in not pursuing psychological evidence in support of the defense that the defendant was under the domination of his accomplice where evidence was presented in the post-conviction proceeding that the defendant was immature, dependent and easily lead. State v. Tokman, 564 So. 2d 1339, 1990 Miss. LEXIS 232 (Miss. 1990).

Argument that counsel was ineffective was without merit where counsel presented proof concerning defendant’s absence of criminal record, cooperation in investigation, his being model prisoner, and testimony of victim’s wife that defendant was non-violent. Wiley v. State, 517 So. 2d 1373, 1987 Miss. LEXIS 2915 (Miss. 1987), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 610, 1988 U.S. LEXIS 2458 (U.S. 1988).

Ineffective assistance of counsel was not shown concerning investigation of and failure to present mitigating circumstances where there was some mitigation by cross-examination and, strategically, it may be safer to obtain mitigating evidence from state’s witnesses than to risk aggravating evidence from witnesses called by defense. Additionally, trial counsel has no absolute duty to present mitigating evidence; strategic choices made after less than complete investigation are reasonable to extent that reasonable professional judgment supports limitations on investigation; court must apply heavy measure of deference to counsel’s judgments. Wiley v. State, 517 So. 2d 1373, 1987 Miss. LEXIS 2915 (Miss. 1987), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 610, 1988 U.S. LEXIS 2458 (U.S. 1988).

Argument that counsel was ineffective for failing to explain to jury inapplicability and/or insignificance of aggravating circumstances and how to weigh aggravating and mitigating circumstances was rejected where counsel made excellent arguments as to aggravating circumstances, and closing argument contained variety of mitigating evidence. Wiley v. State, 517 So. 2d 1373, 1987 Miss. LEXIS 2915 (Miss. 1987), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 610, 1988 U.S. LEXIS 2458 (U.S. 1988).

Argument that counsel should have requested presentence report in light of his failure to investigate mitigating evidence, was rejected as basis for ineffective assistance of counsel claim where question was counsel’s competence in not investigating and presenting mitigating evidence; if this was reasonable strategic choice, there was no need for investigation by other means. Wiley v. State, 517 So. 2d 1373, 1987 Miss. LEXIS 2915 (Miss. 1987), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 610, 1988 U.S. LEXIS 2458 (U.S. 1988).

Counsel was not ineffective for failing to move for change of venue before guilt phase of trial because defense counsel is under no duty to make such motion, and thus this would fall into realm of trial strategy. Neither newspaper articles, nor anything else, indicated that, absent change of venue, defendant would lose right to fair trial. Wiley v. State, 517 So. 2d 1373, 1987 Miss. LEXIS 2915 (Miss. 1987), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 610, 1988 U.S. LEXIS 2458 (U.S. 1988).

230. –Appellate representation, ineffective assistance of counsel.

A defendant was not deprived of his constitutional right to effective assistance of counsel on the ground that his attorney failed to perfect a timely appeal where his attorney filed for a new trial and J.N.O.V., thereby protecting the defendant’s right of appeal to the Supreme Court. Jackson v. State, 614 So. 2d 965, 1993 Miss. LEXIS 75 (Miss. 1993).

A capital murder defendant was not denied effective assistance of counsel on direct appeal by his attorney’s alleged failure to bring to the Supreme Court’s attention a plea bargain with an accomplice who testified as a witness, where the Supreme Court was well aware that the accomplice had been permitted to plead guilty to manslaughter and that he had been sentenced to 15 years’ imprisonment but had served only 2 1/2 years. Culberson v. State, 580 So. 2d 1136, 1990 Miss. LEXIS 428 (Miss. 1990), cert. denied, 502 U.S. 943, 112 S. Ct. 383, 116 L. Ed. 2d 334, 1991 U.S. LEXIS 6278 (U.S. 1991).

Claim of ineffective assistance of counsel is not procedurally viable where defendant waived issue when he declined to assert that point in his error coram nobis pleading; defendant had not shown sufficient cause to excuse this waiver where record reflected that trial counsel exited state court proceedings at conclusion of direct appeal and did not participate in presentation of error coram nobis pleading. Johnson v. State, 508 So. 2d 1126, 1987 Miss. LEXIS 2588 (Miss. 1987).

231. –Totality of circumstances, ineffective assistance of counsel.

Adequacy of counsel’s performance, as to its deficiency and prejudicial effect, should be measured by totality of circumstances. Taylor v. State, 682 So. 2d 359, 1996 Miss. LEXIS 532 (Miss. 1996).

In determining effectiveness of counsel issues, court must consider whether overall performance was deficient and whether defense was prejudiced by any such deficiencies. Moore v. State, 676 So. 2d 244, 1996 Miss. LEXIS 328 (Miss. 1996).

Viewed as a whole, it was ineffective assistance for defense counsel to fail to subpoena possible witnesses, to fail to seek a continuance until he could interview every possible eyewitness, to fail to seek special venire, to fail to raise Batson, which prohibits peremptory challenges based solely on race, and to fail to seek jury instruction specifically embracing facts that defendant and witness testified occurred, which would have made killing excusable accident. Triplett v. State, 666 So. 2d 1356, 1995 Miss. LEXIS 597 (Miss. 1995).

Defense counsel’s failure to subpoena possible witnesses, to seek a continuance until he could interview every possible eyewitness, to seek special venire, to raise Batson, which prohibits peremptory challenges based solely on race, and to seek jury instruction specifically embracing facts that defendant and witness testified occurred, which would have made killing excusable accident, was prejudicial to defendant. Triplett v. State, 666 So. 2d 1356, 1995 Miss. LEXIS 597 (Miss. 1995).

Right to effective assistance of counsel includes right to representation by attorney who does not owe conflicting duties to other defendants. Smith v. State, 666 So. 2d 810, 1995 Miss. LEXIS 628 (Miss. 1995).

Whether counsel’s performance was both deficient and prejudicial under Strickland test for ineffectiveness of counsel must be determined from totality of circumstances. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Counsel for capital murder defendant was not ineffective for conducting cross-examination of witness that produced responses which allegedly strongly suggested to jury that defendant could not be rehabilitated, where most of the cross-examination was in abstract and was not related directly to defendant, and defendant had previous convictions for rape, manslaughter, robbery and grand larceny based upon which jury could have easily reached conclusion that there was little hope for defendant’s rehabilitation. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Supreme Court must determine whether counsel’s performance was both deficient and prejudicial based upon totality of circumstances. Hughes v. State, 665 So. 2d 852, 1995 Miss. LEXIS 564 (Miss. 1995).

232. –Different outcome, ineffective assistance of counsel.

Counsel for capital murder defendant was not ineffective for failing to investigate and develop fact of defendant’s low intelligence quotient, where absence of that evidence did not reasonably undermine confidence in outcome of trial, in that it was merely additional evidence of defendant’s mental aptitude, since counsel argued that defendant had very minimal education and deprived childhood. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Claim of ineffective assistance of counsel is judged by whether counsel’s performance was deficient, and, if so, whether deficient performance was prejudicial to defendant in sense that court’s confidence in correctness of outcome is undermined. Roland v. State, 666 So. 2d 747, 1995 Miss. LEXIS 600 (Miss. 1995).

Supreme Court will find ineffective representation by counsel only where there is reasonable probability that without counsel’s errors, outcome of trial would have been different. Hughes v. State, 665 So. 2d 852, 1995 Miss. LEXIS 564 (Miss. 1995).

A defendant’s counsel was not ineffective at the guilt phase of a capital murder trial where the defense counsel adequately investigated, filing discovery motions and obtaining the State’s entire file, and there was no reasonable probability that the outcome of the trial would have been different had evidence been presented that the defendant’s accomplice, rather than the defendant, delivered the fatal injuries, because it was clearly established that the defendant was present at the planning and execution of the murder and was therefore a principal. State v. Tokman, 564 So. 2d 1339, 1990 Miss. LEXIS 232 (Miss. 1990).

233. –Sufficiency of evidence, ineffective assistance of counsel.

Defendants’ claim of ineffective assistance of counsel based on allegation that if they had known that their attorneys would not call any witnesses, they would have themselves testified, amounted to a sham, and therefore defendants were not entitled to evidentiary hearing to set aside validly imposed sentences based upon this claim, considering that, prior to testimony commencing, trial judge made detailed and lengthy presentation to defendants on subject of their right to testify and defendants affirmatively responded to judge’s questions as to whether they understood that they had right to testify regardless of what any other person wished or ordered them to do. King v. State, 679 So. 2d 208, 1996 Miss. LEXIS 430 (Miss. 1996).

Defendants were denied effective assistance of counsel where their trial counsel failed to question the jury panel during voir dire, failed to make an opening statement, failed to object to questionable identification testimony, placed into evidence a photograph of the defendants taken at the police station while they were wearing handcuffs, failed to call available alibi defense witnesses, failed to assure that the defendants were aware of their right to testify, admitted during closing argument that he had failed to bring his trial notes to court, and failed to present available mitigation evidence at sentencing. Moody v. State, 644 So. 2d 451, 1994 Miss. LEXIS 512 (Miss. 1994).

A defendant did not present sufficient evidence to show that he received ineffective assistance of counsel where the defendant simply cited actions of his attorney without explaining or justifying his contention that they should be characterized as deficient and prejudicial, and the defendant made no showing that his attorney’s alleged errors affected the outcome of the case. Ahmad v. State, 603 So. 2d 843, 1992 Miss. LEXIS 321 (Miss. 1992).

A defendant was denied effective assistance of counsel where his attorney failed to conduct discovery, failed to object to the admissibility of statements made by the defendant after he was questioned by a police officer without being advised of his Miranda rights, failed to inquire into the constitutionality of a warrantless, nonconsensual search of the defendant’s automobile, and failed to raise at the trial level the issue of a speedy trial, though the prosecution missed the statutory deadline for a speedy trial by 148 days. Barnes v. State, 577 So. 2d 840, 1990 Miss. LEXIS 822 (Miss. 1990), modified, 577 So. 2d 840 (Miss. 1991).

A defendant was not denied his right to effective assistance of counsel merely because his attorney failed to procure a preliminary hearing where no allegation or facts were presented as to the way in which this matter operated to the defendant’s prejudice. Jordan v. State, 577 So. 2d 368, 1990 Miss. LEXIS 785 (Miss. 1990).

A defendant’s post-conviction claim of ineffective assistance of counsel, which was based on allegations that the defendant’s counsel failed to object to allegedly defective indictments and erroneously advised the defendant to plead guilty, was properly dismissed without the benefit of an evidentiary hearing because it was manifestly without merit where the defendant failed to allege with the “specificity and detail” required that his counsel’s performance was deficient and that the deficient performance prejudiced the defense, the facts alleged and the brief submitted were not supported by any affidavits other than his own, the indictments were not defective and therefore the defendant’s counsel could not be faulted for failing to challenge their validity, and the defendant failed to identify the “deficient and erroneous advice” of his counsel that allegedly resulted in his pleas of guilty. Brooks v. State, 573 So. 2d 1350, 1990 Miss. LEXIS 776 (Miss. 1990).

Claim that counsel was ineffective because certain issues were procedurally barred due to ineffective assistance of counsel did not have merit because none of issues claimed had merit and thus failure to assert them could not constitute ineffective assistance of counsel. Wiley v. State, 517 So. 2d 1373, 1987 Miss. LEXIS 2915 (Miss. 1987), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 610, 1988 U.S. LEXIS 2458 (U.S. 1988).

In a prosecution for possession with intent to deliver a controlled substance, in violation of §§41-29-115,41-29-117, and41-29-119, the record failed affirmatively to establish denial of defendants’ right to effective assistance of counsel; nevertheless, affirmance of the judgment of conviction would not preclude defendants from litigating the issue via proper post-conviction proceedings. Read v. State, 430 So. 2d 832, 1983 Miss. LEXIS 2525 (Miss. 1983).

234. Interrogation.

Defendant’s motion to suppress his confession, contending that his rights under Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments, Miss. Const. art. 3, §§ 14, 26 and 28, and Miss. Unif. Crim. R. Cir. Ct. Prac. 6.03 were violated was properly denied where a psychiatrist testified that defendant was not so impaired by mental disease or defect as to make him clearly incompetent to make a confession. Further, in defendant’s original direct appeal, he challenged the admission of his confession on five separate grounds and that adverse decision constituted the law of the case. Thorson v. State, 895 So. 2d 85, 2004 Miss. LEXIS 1350 (Miss. 2004), cert. denied, 546 U.S. 831, 126 S. Ct. 53, 163 L. Ed. 2d 83, 2005 U.S. LEXIS 6177 (U.S. 2005).

235. Environment and pollution.

Where the Mississippi Commission on Environmental Quality found that the tire company had committed numerous violations under a National Pollutant Discharge Elimination System (NPDES) permit, the tire company failed to demonstrate that it was singled out, or that it was selected for prosecution based upon protected classifications. Further, the appellate court deferred to the Mississippi Department of Environmental Quality’s decision regarding the methodology limits implemented by the agency which were based on concentration limits rather than mass limits; in the latter context, the Commission acted within its power in determining that the permit was not “fatally flawed” under the methodology implemented. Titan Tire of Natchez, Inc. v. Miss. Comm'n on Envtl. Quality, 891 So. 2d 195, 2004 Miss. LEXIS 1408 (Miss. 2004); Rucker v. State, 909 So. 2d 137, 2005 Miss. App. LEXIS 551 (Miss. Ct. App. 2005).

Cited in

Barnes v. State, 920 So. 2d 1019, 2005 Miss. App. LEXIS 527 (Miss. Ct. App. 2005).

Amendment XV Universal male suffrage

Section 1.— The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.

Section 2.— The Congress shall have power to enforce this article by appropriate legislation.

Editor’s Note —

Proposal and Ratification. The fifteenth amendment to the Constitution of the United States was proposed to the Legislatures of the several States by the Fortieth Congress, on the 26th of February, 1869, and was declared, in a proclamation of the Secretary of State, dated March 30, 1870, to have been ratified by the Legislatures of twenty-nine of the thirty-seven States. The dates of ratification were: Nevada, March 1, 1869; West Virginia, March 3, 1869; Illinois, March 5, 1869; Louisiana, March 5, 1869; North Carolina, March 5, 1869; Michigan, March 8, 1869; Wisconsin, March 9, 1869; Maine, March 11, 1869; Massachusetts, March 12, 1869; Arkansas, March 15, 1869; South Carolina, March 15, 1869; Pennsylvania, March 25, 1869; New York, April 14, 1869 (and the legislature of the same State passed a resolution January 5, 1870, to withdraw its consent to it, which action it rescinded on March 30, 1970); Indiana, May 14, 1869; Connecticut, May 19, 1869; Florida, June 14, 1869; New Hampshire, July 1, 1869; Virginia, October 8, 1869; Vermont, October 20, 1869; Missouri, January 7, 1870; Minnesota, January 13, 1870; Mississippi, January 17, 1870; Rhode Island, January 18, 1870; Kansas, January 19, 1870; Ohio, January 27, 1870 (after having rejected it on April 30, 1869); Georgia, February 2, 1870; Iowa, February 3, 1870.

Ratification was completed on February 3, 1870, unless the withdrawal of ratification by New York was effective; in which event ratification was completed on February 17, 1870, when Nebraska ratified.

The amendment was subsequently ratified by Texas, February 18, 1870; New Jersey, February 15, 1871 (after having rejected it on February 7, 1870); Delaware, February 12, 1901 (after having rejected it on March 18, 1869); Oregon, February 24, 1959; California, April 3, 1962 (after having rejected it on January 28, 1870); Kentucky, March 18, 1976 (after having rejected it on March 12, 1869).

The amendment was approved by the Governor of Maryland, May 7, 1973; Maryland having previously rejected it on February 26, 1870.

The amendment was ratified by Tennessee on April 8, 1997; Tennessee having previously rejected it on November 16, 1869.

Cross References —

Failure to pay poll tax, see USCS Const Amend XXIV.

Right of eighteen-year-olds to vote, see USCS Const Amend XXVI.

Womens’ right to vote, see USCS Const Amend XIX.

RESEARCH REFERENCES

CJS.

C.J.S. Elections §§ 6, 8 to 13.

JUDICIAL DECISIONS

1. In general.

2. Racial discrimination.

3. Voter registration.

1. In general.

A city’s annexation of a particular area was constitutionally valid, where the population of the annexed area was roughly 50 percent white and 50 percent black, and where the annexation left the overall population and the voting age population in roughly the same racial makeup as it had been prior to the annexation, notwithstanding the allegation that a particular area had been excluded from the annexation on the basis that all its residents were black. Enlargement of Boundaries v. Yazoo City, 452 So. 2d 837, 1984 Miss. LEXIS 1748 (Miss. 1984).

2. Racial discrimination.

Black voters failed to show that failure to repeal the provision of §37-59-17 requiring that school bond referenda be passed by a 60 percent majority vote rather than a simple majority was motivated by racial factors, and thus they failed to show that the 60 percent requirement violated the Fourteenth and Fifteenth amendments, where the predominant theme of legislators who voted against repeal was opposition to raising property taxes; the fact that some House members perceived that repeal of the 60 percent requirement involved racial considerations did not make it so. Armstrong v. Allain, 893 F. Supp. 1320, 1994 U.S. Dist. LEXIS 20535 (S.D. Miss. 1994), aff'd, 62 F.3d 396, 1995 U.S. App. LEXIS 21306 (5th Cir. Miss. 1995).

Use of 1982 reapportionment plan, which had been found unconstitutional, rather than court-drawn plan or plan proposed by parties, was constitutional and could properly be used on interim basis in order that primary and general elections for state legislature could take place as scheduled prior to implementation of valid, permanent plan, despite fact that 1982 plan did not maximize members of majority black districts; because of swiftness with which population changes, and high cost of creating new election districts, and in view of lack of sufficient time to conduct full hearings and fact that proponents of one proposed plan failed to show that plan cured objections by United States Attorney General, and since possibility of corrective relief at later date existed, use was appropriate. Watkins v. Mabus, 771 F. Supp. 789, 1991 U.S. Dist. LEXIS 12646 (S.D. Miss.), aff'd in part, vacated in part, 502 U.S. 954, 112 S. Ct. 412, 116 L. Ed. 2d 433, 1991 U.S. LEXIS 6598 (U.S. 1991).

The fact that a black had never won an at-large election in a city in which blacks comprised a majority of its total population as well as a majority of its voting age population was not sufficient in itself to prove an unconstitutional dilution of black voting strength in an action challenging the apportionment of the city’s municipal wards. Canton Branch, NAACP v. Canton, 472 F. Supp. 859, 1978 U.S. Dist. LEXIS 15332 (S.D. Miss. 1978).

Code 1972 §21-3-7 is a purposeful device conceived and operated to further racial discrimination in the voting process, and is therefore violative of the Fourteenth and Fifteenth Amendments to the United States Constitution.Stewart v. Waller, 404 F. Supp. 206, 1975 U.S. Dist. LEXIS 11446 (N.D. Miss. 1975).

3. Voter registration.

Plaintiffs who showed that challenged statutes either impinged upon their protected rights to register to vote or burdened organizational efforts to assist prospective voters in registering had standing to sue to challenge Mississippi’s dual registration requirement and prohibition on satellite registration as violative of their rights and all persons similarly situated. Mississippi State Chapter, Operation Push v. Allain, 674 F. Supp. 1245, 1987 U.S. Dist. LEXIS 10925 (N.D. Miss. 1987).

Amendment XVI Income tax

The congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.

Editor’s Note —

Proposal and Ratification. The sixteenth amendment to the Constitution of the United States was proposed to the Legislatures of the several States by the Sixty-first Congress on the 12th of July, 1909, and was declared, in a proclamation of the Secretary of State, dated the 25th of February, 1913, to have been ratified by 36 of the 48 States. The dates of ratification were: Alabama, August 10, 1909; Kentucky, February 8, 1910; South Carolina, February 19, 1910; Illinois, March 1, 1910; Mississippi, March 7, 1910; Oklahoma, March 10, 1910; Maryland, April 8, 1910; Georgia, August 3, 1910; Texas, August 16, 1910; Ohio, January 19, 1911; Idaho, January 20, 1911; Oregon, January 23, 1911; Washington, January 26, 1911; Montana, January 30, 1911; Indiana, January 30, 1911; California, January 31, 1911; Nevada, January 31, 1911; South Dakota, February 3, 1911; Nebraska, February 9, 1911; North Carolina, February 11, 1911; Colorado, February 15, 1911; North Dakota, February 17, 1911; Kansas, February 18, 1911; Michigan, February 23, 1911; Iowa, February 24, 1911; Missouri, March 16, 1911; Maine, March 31, 1911; Tennessee, April 7, 1911; Arkansas, April 22, 1911 (after having rejected it earlier); Wisconsin, May 26, 1911; New York, July 12, 1911; Arizona, April 6, 1912; Minnesota, June 11, 1912; Louisiana, June 28, 1912; West Virginia, January 31, 1913; New Mexico, February 3, 1913.

Ratification was completed on February 3, 1913.

The amendment was subsequently ratified by Massachusetts, March 4, 1913; New Hampshire, March 7, 1913 (after having rejected it on March 2, 1911).

The amendment was rejected (and not subsequently ratified) by Connecticut, Rhode Island, and Utah.

Cross References —

Apportionment of direct taxes, see USCS Const Art I, § 2, cl. 3 and Art I, § 9, cl. 4.

RESEARCH REFERENCES

Am. Jur.

16 Am Jur 2d, Constitutional Law § 14.

16A Am Jur 2d, Constitutional Law § 419.

CJS.

C.J.S. Internal Revenue § 12.

JUDICIAL DECISIONS

1. In general.

The Sixteenth Amendment to the Federal Constitution enlarged the power of Congress to levy income taxes without apportionment among the several states and without regard to enumeration; but it did not confer upon the states any power, and their power remains as it existed prior to the Sixteenth Amendment. Mississippi State Tax Com. v. Brown, 188 Miss. 483, 193 So. 794, 1940 Miss. LEXIS 14 (Miss. 1940).

Amendment XVII Popular election of Senators

The senate of the United States shall be composed of two senators from each state, elected by the people thereof, for six years; and each senator shall have one vote. The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state Legislatures.

When vacancies happen in the representation of any state in the senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointment until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any senator chosen before it becomes valid as part of the Constitution.

Editor’s Note —

Proposal and Ratification. The seventeenth amendment to the Constitution of the United States was proposed to the Legislatures of the several States by the Sixty-second Congress on the 13th of May, 1912, and was declared, in a proclamation of the Secretary of State, dated the 31st of May, 1913, to have been ratified by the legislatures of 36 of the 48 States. The dates of ratification were: Massachusetts, May 22, 1912; Arizona, June 3, 1912; Minnesota, June 10, 1912; New York, January 15, 1913; Kansas, January 17, 1913; Oregon, January 23, 1913; North Carolina, January 25, 1913; California, January 28, 1913; Michigan, January 28, 1913; Iowa, January 30, 1913; Montana, January 30, 1913; Idaho, January 31, 1913; West Virginia, February 4, 1913; Colorado, February 5, 1913; Nevada, February 6, 1913; Texas, February 7, 1913; Washington, February 7, 1913; Wyoming, February 8, 1913; Arkansas, February 11, 1913; Maine, February 11, 1913; Illinois, February 13, 1913; North Dakota, February 14, 1913; Wisconsin, February 18, 1913; Indiana, February 19, 1913; New Hampshire, February 19, 1913; Vermont, February 19, 1913; South Dakota, February 19, 1913; Oklahoma, February 24, 1913; Ohio, February 25, 1913; Missouri, March 7, 1913; New Mexico, March 13, 1913; Nebraska, March 14, 1913; New Jersey, March 17, 1913; Tennessee, April 1, 1913; Pennsylvania, April 2, 1913; Connecticut, April 8,1913.

Ratification was completed on April 8, 1913.

The amendment was subsequently ratified by Louisiana, June 11, 1914.

The amendment was rejected by Utah (and not subsequently ratified) on February 26, 1913.

RESEARCH REFERENCES

CJS.

C.J.S. Elections § 16.

C.J.S. United States §§ 16-18, 20-22.

JUDICIAL DECISIONS

1. Construction and application.

2. Writ of election.

1. Construction and application.

Miss. Code Ann. §23-15-855 is silent regarding the situation in which a senatorial vacancy occurs after a general state or congressional election, and the statute fails to implement the specific power granted to the legislature by the Seventeenth Amendment for directing the filling of the vacancy by election. As such, the general power granted to the executive branch of the state by the Seventeenth Amendment to issue writs of election is controlling. Barbour v. State ex rel. Hood, 974 So. 2d 232, 2008 Miss. LEXIS 87 (Miss. 2008).

2. Writ of election.

Writ of election issued by the Governor on December 20, 2007, designating November 4, 2008, as the general election day for electing a U.S. Senator to complete the term of office of a Senator who had resigned was not constitutionally infirm. The circuit court erred, as a matter of law, in finding that the writ of election exceeded the Governor’s constitutional and statutory authority. Barbour v. State ex rel. Hood, 974 So. 2d 232, 2008 Miss. LEXIS 87 (Miss. 2008).

Amendment XVIII Liquor prohibition [Repealed]

Editor’s Note —

Repeal of Amendment. Former Amendment XVIII to the United States Constitution, which was repealed by Amendment XXI to the United States Constitution ratified on December 5, 1933, provided as follows:

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the Legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.”

Proposal and Ratification. The eighteenth amendment to the Constitution of the United States was proposed to the Legislatures of the several States by the Sixty-fifth Congress, on the 18th of December, 1917, and was declared, in a proclamation of the Secretary of State, dated the 29th of January, 1919, to have been ratified by the legislatures of 36 of the 48 States. The dates of ratification were: Mississippi, January 8, 1918; Virginia, January 11, 1918; Kentucky, January 14, 1918; North Dakota, January 25, 1918; South Carolina, January 29, 1918; Maryland, February 13, 1918; Montana, February 19, 1918; Texas, March 4, 1918; Delaware, March 18, 1918; South Dakota, March 20, 1918; Massachusetts, April 2, 1918; Arizona, May 24, 1918; Georgia, June 26, 1918; Louisiana, August 3, 1918; Florida, December 3, 1918; Michigan, January 2, 1919; Ohio, January 7, 1919; Oklahoma, January 7, 1919; Idaho, January 8, 1919; Maine, January 8, 1919; West Virginia, January 9, 1919; California, January 13, 1919; Tennessee, January 13, 1919; Washington, January 13, 1919; Arkansas, January 14, 1919; Kansas, January 14, 1919; Alabama, January 15, 1919; Colorado, January 15, 1919; Iowa, January 15, 1919; New Hampshire, January 15, 1919; Oregon, January 15, 1919; Nebraska, January 16, 1919; North Carolina, January 16, 1919; Utah, January 16, 1919; Missouri, January 16, 1919; Wyoming, January 16, 1919.

Ratification was completed on January 16, 1919.

The amendment was subsequently ratified by Minnesota on January 17, 1919; Wisconsin, January 17, 1919; New Mexico, January 20, 1919; Nevada, January 21, 1919; New York, January 29, 1919; Vermont, January 29, 1919; Pennsylvania, February 25, 1919; Connecticut, May 6, 1919; and New Jersey, March 9, 1922.

The amendment was rejected (and not subsequently ratified) by Rhode Island.

Cross References —

Repeal of this amendment, see USCS Const Amend XXI.

JUDICIAL DECISIONS

1. In general.

State prohibition laws are not superseded by the 18th Amendment. Kyzar v State, 125 M 79, 87 So 415; Meriwether v State, 125 M 435, 87 So 411. Meriwether v. State, 125 Miss. 435, 87 So. 411, 1921 Miss. LEXIS 94 (Miss. 1921).

Amendment XIX Woman suffrage

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

Editor’s Note —

Proposal and Ratification. The nineteenth amendment to the Constitution of the United States was proposed to the Legislatures of the several States by the Sixty-sixth Congress, on the 4th of June, 1919, and 424 was declared, in a proclamation of the Secretary of State, dated the 26th of August, 1920, to have been ratified by the legislatures of 36 of the 48 States. The dates of ratification were: Illinois, June 10, 1919 (and that State readopted its resolution of ratification June 17, 1919); Michigan, June 10, 1919; Wisconsin, June 10, 1919; Kansas, June 16, 1919; New York, June 16, 1919; Ohio, June 16, 1919; Pennsylvania, June 24, 1919; Massachusetts, June 25, 1919; Texas, June 28, 1919; Iowa, July 2, 1919; Missouri, July 3, 1919; Arkansas, July 28, 1919; Montana, August 2, 1919; Nebraska, August 2, 1919; Minnesota, September 8, 1919; New Hampshire, September 10, 1919; Utah, October 2, 1919; California, November 1, 1919; Maine, November 5, 1919; North Dakota, December 1, 1919; South Dakota, December 4, 1919; Colorado, December 15, 1919; Kentucky, January 6, 1920; Rhode Island, January 6, 1920; Oregon, January 13, 1920; Indiana, January 16, 1920; Wyoming, January 27, 1920; Nevada, February 7, 1920; New Jersey, February 9, 1920; Idaho, February 11, 1920; Arizona, February 12, 1920; New Mexico, February 21, 1920; Oklahoma, February 28, 1920; West Virginia, March 10, 1920; Washington, March 22, 1920; Tennessee, August 18, 1920.

Ratification was completed on August 18, 1920.

The amendment was subsequently ratified by Connecticut on September 14, 1920 (and that State reaffirmed on September 21, 1920); Vermont, February 8, 1921; Delaware, March 6, 1923 (after rejecting it on June 2, 1920); Maryland, March 29, 1941 (after rejecting it on February 24, 1920; ratification certified on February 25, 1958); Virginia, February 21, 1952 (after rejecting it on February 12, 1920); Alabama, September 8, 1953 (after rejecting it on September 22, 1919); Florida, May 13, 1969; South Carolina, July 1, 1969 (after rejecting it on January 28, 1920; ratification certified on August 22, 1973); Georgia, February 20, 1970 (after rejecting it on July 24, 1919); Louisiana, June 11, 1970 (after rejecting it on July 1, 1920); North Carolina, May 6,1971; Mississippi, March 22, 1984 (after rejecting it on March 29, 1920).

Cross References —

Failure to pay poll tax, see USCS Const Amend XXIV.

Right of eighteen-year-olds to vote, see USCS Const Amend XXVI.

Right to vote regardless of race, color, or previous condition of servitude, see USCS Const Amend XV.

RESEARCH REFERENCES

Am. Jur.

16A Am Jur 2d, Constitutional Law §§ 222, 419.

25 Am Jur 2d, Elections § 157.

32 Am Jur 2d, Federal Courts § 460.

CJS.

C.J.S. Elections § 8.

Amendment XX Lame duck amendment

Section 1.— The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2.— The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3rd day of January, unless they shall by law appoint a different day.

Section 3.— If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Section 4.— The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Section 5.— Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

Section 6.— This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

Proposal and Ratification.

The twentieth amendment to the Constitution was proposed to the legislatures of the several states by the Seventy-Second Congress, on the 2d day of March, 1932, and was declared, in a proclamation by the Secretary of State, dated on the 6th day of February, 1933, to have been ratified by the legislatures of 36 of the 48 States. The dates of ratification were: Virginia, March 4, 1932; New York, March 11, 1932; Mississippi, March 16, 1932; Arkansas, March 17, 1932; Kentucky, March 17, 1932; New Jersey, March 21, 1932; South Carolina, March 25, 1932; Michigan, March 31, 1932; Maine, April 1, 1932; Rhode Island, April 14, 1932; Illinois, April 21, 1932; Louisiana, June 22, 1932; West Virginia, July 30, 1932; Pennsylvania, August 11, 1932; Indiana, August 15, 1932; Texas, September 7, 1932; Alabama, September 13, 1932; California, January 4, 1933; North Carolina, January 5, 1933; North Dakota, January 9, 1933; Minnesota, January 12, 1933; Arizona, January 13, 1933; Montana, January 13, 1933; Nebraska, January 13, 1933; Oklahoma, January 13, 1933; Kansas, January 16, 1933; Oregon, January 16, 1933; Delaware, January 19, 1933; Washington, January 19, 1933; Wyoming, January 19, 1933; Iowa, January 20, 1933; South Dakota, January 20, 1933; Tennessee, January 20, 1933; Idaho, January 21, 1933; New Mexico, January 21, 1933; Georgia, January 23, 1933; Missouri, January 23, 1933; Ohio, January 23, 1933; Utah, January 23, 1933.

Ratification was completed on January 23, 1933.

The amendment was subsequently ratified by Massachusetts on January 24, 1933; Wisconsin, January 24, 1933; Colorado, January 24, 1933; Nevada, January 26, 1933; Connecticut, January 27, 1933; New Hampshire, January 31, 1933; Vermont, February 2, 1933; Maryland, March 24, 1933; Florida, April 26, 1933.

Cross References —

Number of terms permitted President, see USCS Const Amend XXII.

Incapacity of President, see USCS Const Amend XXV, §§ 3 and 4.

Removal, death, or resignation of President, see USCS Const Amend XXV, § 1.

RESEARCH REFERENCES

Am. Jur.

16A Am Jur 2d, Constitutional Law § 419.

63C Am Jur 2d, Public Officers and Employees §§ 117, 118, 121, 137-145, 428, 431, 432.

CJS.

C.J.S. United States §§ 45, 46.

Amendment XXI Repeal of prohibition amendment

Section 1.— The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2.— The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 3.— This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the congress.

Proposal and Ratification.

The twenty-first amendment to the Constitution was proposed to the several states by the Seventy-Second Congress, on the 20th day of February, 1933, and was declared, in a proclamation by the Secretary of State, dated on the 5th day of December, 1933, to have been ratified by 36 of the 48 States. The dates of ratification were: Michigan, April 10, 1933; Wisconsin, April 25, 1933; Rhode Island, May 8, 1933; Wyoming, May 25, 1933; New Jersey, June 1, 1933; Delaware, June 24, 1933; Indiana, June 26, 1933; Massachusetts, June 26, 1933; New York, June 27, 1933; Illinois, July 10, 1933; Iowa, July 10, 1933; Connecticut, July 11, 1933; New Hampshire, July 11, 1933; California, July 24, 1933; West Virginia, July 25, 1933; Arkansas, August 1, 1933; Oregon, August 7, 1933; Alabama, August 8, 1933; Tennessee, August 11, 1933; Missouri, August 29, 1933; Arizona, September 5, 1933; Nevada, September 5, 1933; Vermont, September 23, 1933;Colorado, September 26, 1933; Washington, October 3, 1933; Minnesota, October 10, 1933; Idaho, October 17, 1933; Maryland, October 18, 1933; Virginia, October 25, 1933; New Mexico, November 2, 1933; Florida, November 14, 1933; Texas, November 24, 1933; Kentucky, November 27, 1933; Ohio, December 5, 1933; Pennsylvania, December 5, 1933; Utah, December 5, 1933.

Ratification was completed on December 5, 1933.

The amendment was subsequently ratified by Maine, on December 6, 1933, and by Montana, on August 6, 1934.

The amendment was rejected (and not subsequently ratified) by South Carolina, on December 4, 1933.

RESEARCH REFERENCES

ALR.

Federal regulation of competitive practices in liquor industry under § 5 of Federal Alcohol Administration Act (27 USCS § 205). 58 A.L.R. Fed. 797.

JUDICIAL DECISIONS

1. In general.

2. Construction with Commerce Clause.

3. Local ordinances.

1. In general.

Wholesale markup applied to liquor sold to federal military installations in Mississippi constituted a sales tax, the legal incidence of which rested upon instrumentalities of the United States as the purchasers, and therefore the markup was unconstitutional as a tax imposed upon the United States and its instrumentalities; The Twenty-First Amendment did not abolish federal immunity with respect to taxes on the sales of liquor to the concurrent jurisdiction bases. United States v. Tax Comm'n of Mississippi, 421 U.S. 599, 95 S. Ct. 1872, 44 L. Ed. 2d 404, 1975 U.S. LEXIS 120 (U.S. 1975).

Since this Amendment allows the states constitutionally to prohibit the use of intoxicating liquor, it allows the states also to prohibit the possession of intoxicating liquor, since possession is an essential and vital part of the delivery or use of intoxicants. State v. Wood, 187 So. 2d 820, 1966 Miss. LEXIS 1356 (Miss. 1966).

2. Construction with Commerce Clause.

State liquor tax exemption for locally produced alcoholic beverages violates commerce clause because it has purpose and effect of discriminating in favor of local products, and tax is not saved by Twenty-First Amendment because tax violates central tenet of commerce clause without indication that it is useful in combating perceived evils of unrestricted traffic of liquor. Bacchus Imports v. Dias, 468 U.S. 263, 104 S. Ct. 3049, 82 L. Ed. 2d 200, 1984 U.S. LEXIS 135 (U.S. 1984).

3. Local ordinances.

Pursuant to §67-3-65, a city was authorized to enact ordinances regulating light wine and beer on adult entertainment premises without showing any secondary effects or showing that such establishments were conducive to criminal behavior; accordingly, any artistic or communicative value that might attach to topless dancing was overridden by the city’s exercise of its broad powers arising under the Twenty-First Amendment, and the city’s prohibition of light wine and beer in a lounge featuring topless dancing was constitutionally permissible. Steverson v. City of Vicksburg, 900 F. Supp. 1, 1994 U.S. Dist. LEXIS 20777 (S.D. Miss. 1994).

Amendment XXII Limitation on Presidential terms

Section 1.— No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Section 2.— This Article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

Proposal and Ratification.

This amendment was proposed to the legislatures of the several States by the Eightieth Congress on Mar. 21, 1947 by House Joint Res. No. 27, and was declared by the Administrator of General Services, on Mar. 1, 1951, to have been ratified by the legislatures of 36 of the 48 States. The dates of ratification were: Maine, March 31, 1947; Michigan, March 31, 1947; Iowa, April 1, 1947; Kansas, April 1, 1947; New Hampshire, April 1, 1947; Delaware, April 2, 1947; Illinois, April 3, 1947; Oregon, April 3, 1947; Colorado, April 12, 1947; California, April 15, 1947; New Jersey, April 15, 1947; Vermont, April 15, 1947; Ohio, April 16, 1947; Wisconsin, April 16, 1947; Pennsylvania, April 29, 1947; Connecticut, May 21, 1947; Missouri, May 22, 1947; Nebraska, May 23, 1947; Virginia, January 28, 1948; Mississippi, February 12, 1948; New York, March 9, 1948; South Dakota, January 21, 1949; North Dakota, February 25, 1949; Louisiana, May 17, 1950; Montana, January 25, 1951; Indiana, January 29, 1951; Idaho, January 30, 1951; New Mexico, February 12, 1951; Wyoming, February 12, 1951; Arkansas, February 15, 1951; Georgia, February 17, 1951; Tennessee, February 20, 1951; Texas, February 22, 1951; Nevada, February 26, 1951; Utah, February 26, 1951; Minnesota, February 27, 1951.

Ratification was completed on February 27, 1951.

The amendment was subsequently ratified by North Carolina on February 28, 1951; South Carolina, March 13, 1951; Maryland, March 14, 1951; Florida, April 16, 1951; Alabama, May 4, 1951.

The amendment was rejected (and not subsequently ratified) by Oklahoma in June 1947, and Massachusetts on June 9, 1949.

Cross References —

Ending of terms of President and Vice-President, see USCS Const Amend XX, § 1.

RESEARCH REFERENCES

Am. Jur.

16A Am Jur 2d, Constitutional Law § 419.

77 Am Jur 2d, United States § 18.

CJS.

C.J.S. United States §§ 45, 46.

Amendment XXIII Presidential electors for District of Columbia

Section 1.— The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State, they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

Section 2.— The Congress shall have power to enforce this article by appropriate legislation.

Proposal and Ratification.

This amendment was proposed by the Eighty-sixth Congress on June 17, 1960 and was declared by the Administrator of General Services on Apr. 3, 1961, to have been ratified by 38 of the 50 States. The dates of ratification were: Hawaii, June 23, 1960 (and that State made a technical correction to its resolution on June 30, 1960); Massachusetts, August 22, 1960; New Jersey, December 19, 1960; New York, January 17, 1961; California, January 19, 1961; Oregon, January 27, 1961; Maryland, January 30, 1961; Idaho, January 31, 1961; Maine, January 31, 1961; Minnesota, January 31, 1961; New Mexico, February 1, 1961; Nevada, February 2, 1961; Montana, February 6, 1961; South Dakota, February 6, 1961; Colorado, February 8, 1961; Washington, February 9, 1961; West Virginia, February 9, 1961; Alaska, February 10, 1961; Wyoming, February 13, 1961; Delaware, February 20, 1961; Utah, February 21, 1961; Wisconsin, February 21, 1961; Pennsylvania, February 28, 1961; Indiana, March 3, 1961; North Dakota, March 3, 1961; Tennessee, March 6, 1961; Michigan, March 8, 1961; Connecticut, March 9, 1961; Arizona, March 10, 1961; Illinois, March 14, 1961; Nebraska, March 15, 1961; Vermont, March 15, 1961; Iowa, March 16, 1961; Missouri, March 20, 1961; Oklahoma, March 21, 1961; Rhode Island, March 22, 1961; Kansas, March 29, 1961; Ohio, March 29, 1961.

Ratification was completed on March 29, 1961.

The amendment was subsequently ratified by New Hampshire on March 30, 1961 (when that State annulled and then repeated its ratification of March 29, 1961).

The amendment was rejected (and not subsequently ratified) by Arkansas on January 24, 1961.

RESEARCH REFERENCES

CJS.

C.J.S. United States § 46.

Amendment XXIV Qualifications of electors; poll tax

Section 1.— The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

Section 2.— The Congress shall have power to enforce this article by appropriate legislation.

Proposal and Ratification.

This amendment was proposed by the Eighty-seventh Congress by Senate Joint Resolution No. 29, which was approved by the Senate on Mar. 27, 1962, and by the House of Representatives on Aug. 27, 1962. It was declared by the Administrator of General Services on Feb. 4, 1964, to have been ratified by the legislatures of 38 of the 50 States.

This amendment was ratified by the following States:

Illinois, Nov. 14, 1962; New Jersey, Dec. 3, 1962; Oregon, Jan. 25, 1963; Montana, Jan. 28, 1963; West Virginia, Feb. 1, 1963; New York, Feb. 4, 1963; Maryland, Feb. 6, 1963; California, Feb. 7, 1963; Alaska, Feb. 11, 1963; Rhode Island, Feb. 14, 1963; Indiana, Feb. 19, 1963; Utah, Feb. 20, 1963; Michigan, Feb. 20, 1963; Colorado, Feb. 21, 1963; Ohio, Feb. 27, 1963; Minnesota, Feb. 27, 1963; New Mexico, Mar. 5, 1963; Hawaii, Mar. 6, 1963; North Dakota, Mar. 7, 1963; Idaho, Mar. 8, 1963; Washington, Mar. 14, 1963; Vermont, Mar. 15, 1963; Nevada, Mar. 19, 1963; Connecticut, Mar. 20, 1963; Tennessee, Mar. 21, 1963; Pennsylvania, Mar. 25, 1963; Wisconsin, Mar. 26, 1963; Kansas, Mar. 28, 1963; Massachusetts, Mar. 28, 1963; Nebraska, Apr. 4, 1963; Florida, Apr. 18, 1963; Iowa, Apr. 24, 1963; Delaware, May 1, 1963; Missouri, May 13, 1963; New Hampshire, June 12, 1963; Kentucky, June 27, 1963; Maine, Jan. 16, 1964; South Dakota, Jan. 23, 1964; Virginia, Feb. 25, 1977; North Carolina, May 3, 1989.

Ratification was completed on January 23, 1964.

The amendment was rejected by Mississippi (and not subsequently ratified) on December 20, 1962.

Cross References —

Right to vote regardless of race, color, or previous condition of servitude, see USCS Const Amend XV.

Womens’ right to vote, see USCS Const Amend XIX.

Right of eighteen-year-olds to vote, see USCS Const Amend XXVI.

RESEARCH REFERENCES

CJS.

C.J.S. Elections § 29.

Amendment XXV Succession to Presidency and Vice Presidency; disability of President

Section 1.— In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2.— Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3.— Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as acting President.

Section 4.— Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the congress, within twenty-one days after receipt of the latter written declaration, or, if congress is not in session, within twenty-one days after congress is required to assemble, determines by two-thirds vote of both houses that the president is unable to discharge the powers and duties of his office, the vice president shall continue to discharge the same as acting president; otherwise, the president shall resume the powers and duties of his office.

Proposal and Ratification.

This amendment was proposed by the Eighty-ninth Congress by Senate Joint Resolution No. 1, which was approved by the Senate on Feb. 19, 1965, and by the House of Representatives, in amended form, on Apr. 13, 1965. The House of Representatives agreed to a Conference Report on June 30, 1965, and the Senate agreed to the Conference Report on July 6, 1965. It was declared by the Administrator of General Services, on Feb. 23, 1967, to have been ratified by the legislatures of 39 of the 50 States.

This amendment was ratified by the following States:

Nebraska, July 12, 1965; Wisconsin, July 13, 1965; Oklahoma, July 16, 1965; Massachusetts, Aug. 9, 1965; Pennsylvania, Aug. 18, 1965; Kentucky, Sept. 15, 1965; Arizona, Sept. 22, 1965; Michigan, Oct. 5, 1965; Indiana, Oct. 20, 1965; California, Oct. 21, 1965; Arkansas, Nov. 4, 1965; New Jersey, Nov. 29, 1965; Delaware, Dec. 7, 1965; Utah, Jan. 17, 1966; West Virginia, Jan. 20, 1966; Maine, Jan. 24, 1966; Rhode Island, Jan. 28, 1966; Colorado, Feb. 3, 1966; New Mexico, Feb. 3, 1966; Kansas, Feb. 8, 1966; Vermont, Feb. 10, 1966; Alaska, Feb. 18, 1966; Idaho, Mar. 2, 1966; Hawaii, Mar. 3, 1966; Virginia, Mar. 8, 1966; Mississippi, Mar. 10, 1966; New York, Mar. 14, 1966; Maryland, Mar. 23, 1966; Missouri, Mar. 30, 1966; New Hampshire, June 13, 1966; Louisiana, July 5, 1966; Tennessee, Jan. 12, 1967; Wyoming, Jan. 25, 1967; Washington, Jan. 26, 1967; Iowa, Jan. 26, 1967; Oregon, Feb. 2, 1967; Minnesota, Feb. 10, 1967; Nevada, Feb. 10, 1967.

Ratification was completed on Feb. 10, 1967.

The amendment was subsequently ratified by Connecticut, Feb. 14, 1967; Montana, Feb. 15, 1967; South Dakota, Mar. 6, 1967; Ohio, Mar. 7, 1967; Alabama, Mar. 14, 1967; North Carolina, Mar. 22, 1967; Illinois, Mar. 22, 1967; Texas, April 25, 1967; Florida, May 25, 1967.

Cross References —

Failure of President-elect and Vice-President-elect to qualify, see USCS Const Amend XX, § 3.

RESEARCH REFERENCES

CJS.

C.J.S. United States §§ 45, 46.

Amendment XXVI Right to vote; citizens eighteen years of age or older

Section 1.— The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Section 2.— The Congress shall have power to enforce this article by appropriate legislation.

Proposal and Ratification.

This amendment was proposed by the Ninety-second Congress by Senate Joint Resolution No. 7, which was approved by the Senate on Mar. 10, 1971, and by the House of Representatives on Mar. 23, 1971. It was declared by the Administrator of General Services on July 5, 1971, to have been ratified by the legislatures of 39 of the 50 States.

This amendment was ratified by the following States: Alabama, June 30, 1971; Alaska, April 8, 1971; Arizona, May 14, 1971; Arkansas, March 30, 1971; California, April 19, 1971; Colorado, April 27, 1971; Connecticut, March 23, 1971; Delaware, March 23, 1971; Hawaii, March 24, 1971; Idaho, March 30, 1971; Illinois, June 29, 1971; Indiana, April 8, 1971; Iowa, March 30, 1971; Kansas, April 7, 1971; Louisiana, April 17, 1971; Maine, April 9, 1971; Maryland, April 8, 1971; Massachusetts, Michigan, April 7, 1971; Minnesota, March 23, 1971; Missouri, June 14, 1971; Montana, March 29, 1971; Nebraska, April 2, 1971; New Hampshire, May 13, 1971; New Jersey, April 3, 1971; New York, June 2, 1971; North Carolina, July 1, 1971; Ohio, June 30, 1971; Oklahoma, July 1, 1971; Oregon, June 4, 1971; Pennsylvania, April 27, 1971; Rhode Island, May 27, 1971; South Carolina, April 28, 1971; Tennessee, March 23, 1971; Texas, April 27, 1971; Vermont, April 16, 1971; Washington, March 23, 1971; West Virginia, April 28, 1971; and Wisconsin, June 22, 1971.

Ratification was completed on July 1, 1971.

The amendment was subsequently ratified by Virginia, July 8, 1971; Wyoming, July 8, 1971; Georgia, October 4, 1971.

Cross References —

Right to vote regardless of race, color, or previous condition of servitude, see USCS Const Amend XV.

Womens’ right to vote, see USCS Const Amend XIX.

Failure to pay poll tax, see USCS Const Amend XXIV.

RESEARCH REFERENCES

CJS.

C.J.S. Elections § 17.

Amendment XXVII Compensation of Senators and Representatives

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

Editor’s Note —

Proposal and Ratification. The Twenty-seventh Amendment was proposed on September 25, 1789. The State Legislatures ratified this Amendment on the following dates: Maryland, North Carolina, South Carolina, Delaware, Vermont, Virginia, 1789-1791; Ohio, May 6, 1873; Wyoming, March 6, 1978; Maine, April 27, 1983; Colorado, April 22, 1984; South Dakota, February 1985; New Hampshire, March 7, 1985; Arizona, April 3, 1985; Tennessee, May 28, 1985; Oklahoma, July 10, 1985; New Mexico, February 14, 1986; Indiana, February 24, 1986; Utah, February 25, 1986; Arkansas, March 13, 1987; Montana, March 17, 1987; Connecticut, May 13, 1987; Wisconsin, July 15, 1987; Georgia, February 2, 1988; West Virginia, March 10, 1988; Louisiana, July 7, 1988; Iowa, February 9, 1989; Idaho, March 23, 1989; Nevada, April 26, 1989; Alaska, May 6, 1989; Oregon, May 19, 1989; Minnesota, May 22, 1989; Texas, May 25, 1989; Kansas, April 5, 1990; Florida, May 31, 1990; North Dakota, March 25, 1991; Alabama, May 5, 1992; Missouri, May 5, 1992; Michigan, May 7, 1992. The State of New Jersey later ratified this amendment on May 7, 1992.

Ratification was completed on May 7, 1992.

The amendment was subsequently ratified by California, June 26, 1992; Illinois, May 12, 1992; and Rhode Island, June 10, 1993; Hawaii, April 29, 1994; Washington, April 6, 1995; Kentucky, March 21, 1996.

Certification of Validity.

Publication of the certifying statement of the Archivist of the United States, pursuant to 1 U.S.C.S. § 106b, that the amendment has become valid was made on May 19, 1992. F.R.Doc. 92-11951, 57 F.R.21187.

Cross References —

Compensation of members of Congress, see also, USCS Const Art 1, § VI, cl. 1.

RESEARCH REFERENCES

ALR.

Construction and operation of twenty-seventh Amendment to United States Constitution relating to congressional compensation. 95 A.L.R.5th 459.