JUDICIAL DECISIONS

1. In general.

2. Legislative powers and functions–In general.

3. – – Review of administrative decisions, legislative powers and functions.

4. – – Crimes, legislative powers and functions.

5. – – Education, legislative powers and functions.

6. – – Delegation of legislative powers, legislative powers and functions.

7. – – Incorporation of municipalities, legislative powers and functions.

8. Judicial powers and functions–In general.

9. – – Crimes, judicial powers and functions.

10. – – Elections, judicial powers and functions.

11. – – Determining validity of legislation, judicial powers and functions.

12. – – Construction of legislation, judicial powers and functions.

13. – – Municipal ordinances, judicial powers and functions.

14. – – Review of administrative decisions, judicial powers and functions.

15. Executive powers and functions.

16. Encroachment–In general.

17. – – Upon legislative power, encroachment.

18. – – Upon judicial power, encroachment.

19. – – Discretion of prosecutor, encroachment.

20. – – Upon executive power, encroachment.

1. In general.

The portion of the Sovereign Immunity Act (§§11-46-1 et seq.) requiring that all claims against the State be governed by case law governing sovereign immunity as it existed immediately prior to the decision in Pruett v. City of Rosedale (Miss. 1982) 421 So. 2d 1046 is unconstitutional as it violates the doctrine of separation of powers and the prohibition against reviving or amending a law by reference to its title only. Presley v. Mississippi State Highway Com., 608 So. 2d 1288, 1992 Miss. LEXIS 581 (Miss. 1992).

The participation of the Lieutenant Governor on the Joint Legislative Budget Committee was not a violation of the constitutional provision for separation of executive and legislative powers. The Lieutenant Governor is constitutionally an officer of both the executive and legislative departments and is eligible as President of the Senate to receive the legislative powers conferred upon him by the legislation creating the Joint Legislative Budget Committee. Neither the statute creating the Joint Legislative Budget Committee nor the Lieutenant Governor’s service on the committee constituted a violation of the constitutionally mandated separation of powers. Kirksey v. Dye, 564 So. 2d 1333, 1990 Miss. LEXIS 38 (Miss. 1990).

Claim upon which relief can be granted is stated where allegation is that member of Executive Department of Government is exercising legislative powers within Senate; court has authority and responsibility to decide question where it is alleged that one arguably member of executive department is exercising legislative powers, where court had for many years entertained and decided controversies wherein parties claimed that members of one department of government were exercising powers in another in violation of constitutional mandate for separation of powers. Dye v. State, 507 So. 2d 332, 1987 Miss. LEXIS 2507 (Miss. 1987).

Workmen’s Compensation Law does not violate § 1 of the state constitution which provides that the powers of the government of the state shall be divided into three distinct departments and each of them confided to a separate magistracy. Walters v. Blackledge, 220 Miss. 485, 71 So. 2d 433, 1954 Miss. LEXIS 464 (Miss. 1954).

Constitutional provision dividing powers of government into departments impliedly prohibits advisory opinions by one department to another, except as Constitution provides therefor. In re Opinion of Justices, 148 Miss. 427, 114 So. 887, 1927 Miss. LEXIS 99 (Miss. 1927).

The separation of the legislative, judicial and executive powers of government is fundamental under the federal and state Constitutions and an ordinance of a constitutional convention cannot violate it. Lawson v. Jeffries, 47 Miss. 686, 1873 Miss. LEXIS 25 (Miss. 1873).

2. Legislative powers and functions–In general.

Circuit court’s overruling of the Mississippi Public Employees’ Retirement System’s denial of disability benefits to a teacher was reversed, as substantial evidence supported the agency’s decision. However, the teacher was to submit to an evaluation by a physician of the agency’s choice, as well as an updated exam by her physician if she so chose. Public Emples. Ret. Sys. v. Howard, 905 So. 2d 1279, 2005 Miss. LEXIS 387 (Miss. 2005).

State constitution does not grant specific legislative powers, but limits them. Moore v. Grillis, 205 Miss. 865, 39 So. 2d 505, 1949 Miss. LEXIS 472 (Miss. 1949).

Legislative and not judicial power held exercised in reducing authority of revenue agent, though it work abatement of a suit. Miller v. Globe-Rutgers Fire Ins. Co., 143 Miss. 489, 108 So. 180, 1926 Miss. LEXIS 284 (Miss. 1926).

3. – – Review of administrative decisions, legislative powers and functions.

It is beyond the power of the legislature to grant a trial de novo to permit the court or jury to substitute their own judgment for that of the Civil Service Commission, when the commission has exercised a purely executive function. City of Meridian v. Davidson, 211 Miss. 683, 53 So. 2d 48, 1951 Miss. LEXIS 399 (Miss. 1951).

4. – – Crimes, legislative powers and functions.

Under the Uniform Controlled Substances Law, the penalties prescribed for violations thereof are inextricably tied to the various schedules, and therefore the portions of Code 1972, §41-29-111 by which the state board of health is given the authority to move a substance from one schedule to another, to add substances to any schedule, and to delete substances from any schedule are an unconstitutional attempt to delegate the authority to define crimes and fix the punishments therefor which is vested exclusively in the legislature; such unconstitutional portions are separable from the remaining provisions of the Uniform Controlled Substances Law. Howell v. State, 300 So. 2d 774, 1974 Miss. LEXIS 1632, 1974 Miss. LEXIS 1633 (Miss. 1974).

5. – – Education, legislative powers and functions.

The abolition of fraternal societies at state educational institutions is within the power of the legislature and is not violative of this section. 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).

6. – – Delegation of legislative powers, legislative powers and functions.

The provision in §11-46-6 [repealed] providing that, until the Sovereign Immunity Act (§§11-46-1 et seq.) becomes effective, all claims against the State and political subdivisions “shall not be affected by this act but shall continue to be governed by the case law governing sovereign immunity as it existed immediately prior to the decision in the case of Pruett v. City of Rosedale, 421 So. 2d 1046” and relevant statutory law governing sovereign immunity delegates all authority to the court, as the court is told to apply the “case law,” which is not even confined to Mississippi case law, on sovereign immunity as it existed on November 10, 1982; the court is required to go beyond the 4 corners of the statute to find the substantive law governing sovereign immunity, a legislatively imposed responsibility on the court “which comes perilously close to delegation to the court the power to legislate on this particular subject,” which under the Mississippi Constitution only the legislature may do. Presley v. Mississippi State Highway Com., 608 So. 2d 1288, 1992 Miss. LEXIS 581 (Miss. 1992).

A statute directing organization of a water district if the court finds the project feasible from an engineering standpoint and practical, and that its creation will meet a public necessity and be conducive to the public welfare of the state as a whole, is not unconstitutional as conferring on the judiciary authority to answer legislative questions. Culley v. Pearl River Industrial Com., 234 Miss. 788, 108 So. 2d 390, 1959 Miss. LEXIS 556 (Miss. 1959).

The last two sentences of Code 1942, § 5825, providing that the insurance commission shall obtain from every stock fire company authorized to do business in the state a written opinion as to the amount of commission such company should pay local agents and that the majority opinion shall fix the amount or rate of commissions to paid local agents in the state, are unconstitutional, since even assuming some power to fix agents’ commission rates is delegated to the insurance commission, the statute constitutes an improper delegation of legislative authority because it fails to provide adequate standards for the guidance of the administrative agency, and constitutes an improper delegation of legislative authority to private groups. State v. Allstate Ins. Co., 231 Miss. 869, 97 So. 2d 372, 1957 Miss. LEXIS 576 (Miss. 1957).

Statute providing for supervision and inspection of public offices and public institutions did not contravene this section as attempting to confer judicial and legislative powers upon executive officers. State ex rel. Knox v. Board of Sup'rs, 141 Miss. 701, 105 So. 541, 1925 Miss. LEXIS 189 (Miss. 1925).

The statutes giving the board of supervisors the right to regulate the taking of fish in their respective counties do not give a judicial body legislative authority. Ex parte Fritz, 86 Miss. 210, 38 So. 722, 1905 Miss. LEXIS 75 (Miss. 1905).

7. – – Incorporation of municipalities, legislative powers and functions.

The commingling of powers in the chancellor to determine the question of the existence of public convenience and necessity for the incorporation of a new municipality, as well as that of the reasonableness of the incorporation, does not violate the prohibition against unlawful delegation of governmental powers, since a finding by the chancellor of the existence of specified requirements for such incorporation is largely ministerial, affording little if any discretion on the part of the chancellor. Rouse v. Pascagoula, 230 So. 2d 543, 1970 Miss. LEXIS 1549 (Miss. 1970).

The statutory power given the governor to determine the right to incorporate municipalities is not violative of the Constitution. City of Jackson v. Whiting, 84 Miss. 163, 36 So. 611, 1904 Miss. LEXIS 76 (Miss. 1904).

8. Judicial powers and functions–In general.

Power to grant the authority to require parents in Mississippi to support their adult children financially was confided to the Mississippi Legislature. The Mississippi courts were without the constitutional power to declare otherwise. Hays v. Alexander, 114 So.3d 704, 2013 Miss. LEXIS 324 (Miss. 2013).

Sections 43-21-119 and 43-21-123, which govern the development and implementation of the annual budget for a youth court in Mississippi, do not violate Mississippi’s constitutional separation of powers doctrine with respect to youth court judges’ ability to participate in the development and implementation of the budget as approved by the board of supervisors. Moore v. Board of Supervisors, 658 So. 2d 883, 1995 Miss. LEXIS 366 (Miss. 1995).

In an action by an employee for actual and punitive damages against an employer on the ground that the employee had been discharged when he refused to drop a workman’s compensation claim against the employer, the trial court properly sustained the employer’s demurrer where there is no provision in the Mississippi Workman’s Compensation Law for relief in cases of retaliatory discharge and where such an exception to the common law rule that a contract of employment for an indefinite term may be terminated at the will of either party rests solely within the power of the Legislature and should not be undertaken by the judiciary. Kelly v. Mississippi Valley Gas Co., 397 So. 2d 874, 1981 Miss. LEXIS 1913 (Miss. 1981).

Statute (Laws of 1944, ch 208, § 10, § 3825-11) providing for appeal to the circuit court from the determination of the Civil Service Commission in removing, suspending, demoting or discharging municipal firemen or policemen for misconduct and that on such appeal the accused shall have the right to a trial by jury, is not unconstitutional as foisting upon the judiciary the performance of nonjudicial powers by providing for a trial de novo in the circuit court, where the statute by its express terms limits the judicial function to determining whether or not the judgment of the commission had such a basis in substantial evidence as not to affirmatively show that the commission had acted in bad faith or without cause. City of Meridian v. Davidson, 211 Miss. 683, 53 So. 2d 48, 1951 Miss. LEXIS 399 (Miss. 1951).

School trustees are not judicial officers, but administrative bodies; and while they may determine primarily whether a child is white or colored, their finding is not judicial and does not preclude the court from determining the fact. Moreau v. Grandich, 114 Miss. 560, 75 So. 434, 1917 Miss. LEXIS 66 (Miss. 1917).

The determination of a constitutional provision is a judicial and not a legislative matter. State ex rel. McClurg v. Powell, 77 Miss. 543, 27 So. 927, 1900 Miss. LEXIS 38 (Miss. 1900).

It is the province of the court and not the legislature to declare what is a nuisance. Quintini v. Mayor, etc. of Bay St. Louis, 64 Miss. 483, 1 So. 625, 1886 Miss. LEXIS 96 (Miss. 1886).

9. – – Crimes, judicial powers and functions.

Capital rape statute which requires imposition of death sentence or life imprisonment did not violate separation of powers doctrine since power to determine appropriate punishment for criminal acts lies in legislative branch. Fisher v. State, 690 So. 2d 268, 1996 Miss. LEXIS 490 (Miss. 1996).

10. – – Elections, judicial powers and functions.

Equity might well interfere to prevent elections authorizing bond issues directly affecting property-rights where such election is attempted to be held without authority of law. Power v. Ratliff, 112 Miss. 88, 72 So. 864, 1916 Miss. LEXIS 70 (Miss. 1916).

An election will be enjoined which is to be held in violation of the Constitution and laws of the state, at the instance of a party who will be directly injured thereby. Conner v. Gray, 88 Miss. 489, 41 So. 186, 1906 Miss. LEXIS 170 (Miss. 1906); Power v. Ratliff, 112 Miss. 88, 72 So. 864, 1916 Miss. LEXIS 70 (Miss. 1916).

The judiciary are not empowered to grant writs of supersedeas to prevent the holding of local option elections. Bond v. State, 68 Miss. 648, 9 So. 353, 1891 Miss. LEXIS 10 (Miss. 1891).

11. – – Determining validity of legislation, judicial powers and functions.

Adoption of Senate rules challenged in current case, without record of dissent, would not serve as estoppel against Senators challenging validity of rules, because such would have effect of establishing new method of amending Constitution, by waiver and estoppel; exhaustion of nonjudicial remedies of constitutional challenge is not required before filing lawsuit. Dye v. State, 507 So. 2d 332, 1987 Miss. LEXIS 2507 (Miss. 1987).

The court must uphold a statute where there is a reasonable doubt of its constitutionality. Natchez & S. R. Co. v. Crawford, 99 Miss. 697, 55 So. 596, 1911 Miss. LEXIS 240 (Miss. 1911).

Until the contrary is shown courts presume statutes to be constitutional. Smith County v. Eastman Gardner Co., 53 So. 7 (Miss. 1910); Beasley v. McElhaney, 53 So. 8 (Miss. 1910); L. N. Dantzler Lumber Co. v. State, 97 Miss. 355, 53 So. 1, 1910 Miss. LEXIS 286 (Miss. 1910), limited, Merrill Engineering Co. v. Capital Nat'l Bank, 192 Miss. 378, 5 So. 2d 666, 1942 Miss. LEXIS 5 (Miss. 1942); Richards v. City Lumber Co., 101 Miss. 678, 57 So. 977, 1911 Miss. LEXIS 142 (Miss. 1911).

A statute susceptible of a construction which upholds its validity will be upheld. State v. Louisville & N.R.R., 97 Miss. 35, 51 So. 918 (1910).

Statutes not in palpable conflict with the Constitution will not be condemned. Hart v. State, 87 Miss. 171, 39 So. 523, 1905 Miss. LEXIS 125 (Miss. 1905).

A case in which § 4936, Code of 1906, is held to be unconstitutional when it relates to jurisdiction, but not as to procedure. Arbuckle v. State, 80 Miss. 15, 31 So. 437, 1902 Miss. LEXIS 219 (Miss. 1902).

Unless it is necessary to a determination of the issues, the Supreme Court will not pass on the constitutionality of any statute. Hallum v. Mobile & O. R. Co., 24 So. 909 (Miss. 1899); Hendricks v. State, 79 Miss. 368, 30 So. 708, 1901 Miss. LEXIS 65 (Miss. 1901); Bell v. Kerr, 80 Miss. 177, 31 So. 708, 1902 Miss. LEXIS 237 (Miss. 1902); Alabama & V. R. Co. v. Overstreet, 85 Miss. 78, 37 So. 819, 1904 Miss. LEXIS 156 (Miss. 1904); Native Lumber Co. v. Board of Supervisors, 89 Miss. 171, 42 So. 665, 1906 Miss. LEXIS 67 (Miss. 1906); Flora v. American Express Co., 92 Miss. 66, 45 So. 149, 1907 Miss. LEXIS 9 (Miss. 1907); Ex parte Jones, 112 Miss. 27, 72 So. 845, 1916 Miss. LEXIS 57 (Miss. 1916); Power v. Ratliff, 112 Miss. 88, 72 So. 864, 1916 Miss. LEXIS 70 (Miss. 1916).

The Supreme Court will not determine the wisdom or policy of a statute. Daily v. Swope, 47 Miss. 367, 1872 Miss. LEXIS 83 (Miss. 1872); State ex rel. Greaves v. Henry, 87 Miss. 125, 40 So. 152, 1905 Miss. LEXIS 184 (Miss. 1905); Bobo v. Board of Levee Comm'rs, 92 Miss. 792, 46 So. 819, 1908 Miss. LEXIS 248 (Miss. 1908); Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466, 1911 Miss. LEXIS 48 (Miss. 1911); State v. J. J. Newman Lumber Co., 102 Miss. 802, 59 So. 923, 1912 Miss. LEXIS 125 (Miss. 1912) (suggestion of error overruled in 103 M 263, 60 So. 215); Darnell v. Johnston, 109 Miss. 570, 68 So. 780 (Miss. 1915).

12. – – Construction of legislation, judicial powers and functions.

Trial judge is not required, prior to accepting a guilty plea, to inform a defendant of the sex offender registration laws, Miss. Code Ann. §§45-33-25 through 31 because Miss. Code Ann. §45-33-39(1) confers no right on a criminal defendant charged with a sex crime and imposes no duty on trial judges, and judicial rules, such as the rules of evidence, civil procedure, criminal procedure, and professional conduct, neither come from the Legislature nor require legislative approval; the Mississippi legislative branch of government may not, through procedural legislation, control the function of the judiciary, and subservience to legislation that mandates what trial judges must say to a defendant in a courtroom during a plea hearing would be tantamount to both an abdication of judicial duty, as well as tacit approval of legislative usurpation of the judicial prerogative. Magyar v. State, 18 So.3d 807, 2009 Miss. LEXIS 388 (Miss. 2009), cert. denied, 560 U.S. 903, 130 S. Ct. 3274, 176 L. Ed. 2d 1182, 2010 U.S. LEXIS 3999 (U.S. 2010).

Whether law is needed and advisable in general government is a matter solely for the wisdom of the legislature, but it is duty of courts to construe the law and apply it to cases presented and determine whether the state constitution authorizes the legislation. Moore v. Grillis, 205 Miss. 865, 39 So. 2d 505, 1949 Miss. LEXIS 472 (Miss. 1949).

It is the province of the Supreme Court to construe penal statutes as they are written. Hatton v. State, 92 Miss. 651, 46 So. 708, 1908 Miss. LEXIS 246 (Miss. 1908).

Courts cannot change a statute. Yerger v. State, 91 Miss. 802, 45 So. 849, 1907 Miss. LEXIS 196 (Miss. 1907); Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466, 1911 Miss. LEXIS 48 (Miss. 1911); State v. Traylor, 100 Miss. 544, 56 So. 521, 1911 Miss. LEXIS 49 (Miss. 1911).

Construction of laws is within the province of the courts and not the legislature. Planters' Bank of Tennessee v. Black, 19 Miss. 43, 1848 Miss. LEXIS 154 (Miss. 1848); Lawson v. Jeffries, 47 Miss. 686, 1873 Miss. LEXIS 25 (Miss. 1873); McCulloch v. Stone, 64 Miss. 378, 8 So. 236, 1886 Miss. LEXIS 76 (Miss. 1886).

13. – – Municipal ordinances, judicial powers and functions.

Local board is in the best position to interpret its own local ordinances; thus, by giving great weight to the board’s interpretation, the supreme court ensures it sticks to its constitutional role as the judiciary, and the supreme court restrains its branch from becoming a super-municipal board, a role that would certainly usurp the powers of the local governing body. Hatfield v. Bd. of Supervisors of Madison Cty., 235 So.3d 18, 2017 Miss. LEXIS 315 (Miss. 2017).

Mississippi’s law does not run afoul of the constitution; the board of supervisors is not overstepping its bounds into the judiciary’s role by interpreting local ordinances but is simply acting within its own established role as creator and enforcer of local law, and similarly, by giving deference to a local board’s interpretation, the supreme court is not ceding its judicial power. Hatfield v. Bd. of Supervisors of Madison Cty., 235 So.3d 18, 2017 Miss. LEXIS 315 (Miss. 2017).

No violation of this section is involved in the court’s modification of an ordinance annexing territory to a municipality. In re Extension of Boundaries, 237 Miss. 486, 115 So. 2d 323, 1959 Miss. LEXIS 495 (Miss. 1959).

14. – – Review of administrative decisions, judicial powers and functions.

In an action arising out of the termination of an affiliation agreement, a chancellor violated the doctrine of separation of powers, Miss. Const. Art. 1, § 1, by not affording deference to the Board of Trustees of Mississippi State Institutions of Higher Learning’s interpretation and implementation of its own policy regarding the independence of affiliated entities. Limbert v. Miss. Univ. for Women Alumnae Ass'n, 998 So. 2d 993, 2008 Miss. LEXIS 583 (Miss. 2008).

This section does not preclude an appeal to the courts from an order of the Educational Finance Commission. Board of Education v. State Educational Finance Com., 243 Miss. 782, 138 So. 2d 912, 1962 Miss. LEXIS 408 (Miss. 1962).

15. Executive powers and functions.

Statute which allowed the Executive Branch to make appropriations decisions was constitutional, as it did not violate the doctrine of separation of powers, because budget reductions imposed on state agencies by the Governor of the State of Mississippi pursuant to the statute were an exercise of the Executive’s constitutional power to control the budget. Clark v. Bryant, 253 So.3d 297, 2018 Miss. LEXIS 385 (Miss. 2018).

The court rejected the argument that local governments operate subject to the separation of powers theory of government wherein the mayor is the executive power and board of aldermen are the legislative power and that, therefore, they cannot both exercise appointment powers because that would be a solely executive power vested entirely in the Mayor. Tisdale v. Clay, 728 So. 2d 1084, 1998 Miss. LEXIS 551 (Miss. 1998).

A suit cannot be maintained against the state for the recovery of an award which the governor has refused to order paid, since the offering and payment of rewards for the arrest of escaped criminals is intrusted solely to the discretion of the executive. State v. Dinkins, 77 Miss. 874, 27 So. 832, 1900 Miss. LEXIS 32 (Miss. 1900).

16. Encroachment–In general.

Legislator could not simultaneously serve dual roles as a state representative and a city’s selectman because the service in both roles violated separation of powers; the role of state representative was legislative in nature, and the role of selectman was a mixed legislative and executive role. Myers v. City of McComb, 943 So. 2d 1, 2006 Miss. LEXIS 537 (Miss. 2006).

The Board of Trustees of State Institutions of Higher Learning is an executive rather than a legislative body as indicated by the enumeration of the Board of Trustees’ powers and duties contained within the Mississippi Constitution and applicable statutes; thus, appointment of the Board of Trustees by the Governor rather than the legislature is not an encroachment upon the powers of the legislative branch of the government. Van Slyke v. Board of Trustees of State Inst. of Higher Learning, 613 So. 2d 872, 1993 Miss. LEXIS 55 (Miss. 1993).

17. – – Upon legislative power, encroachment.

Senate possesses power to make rules regarding the exercise of legislative powers that inhere in it, and it may confer these powers upon one or more of its members, one of which is Lieutenant Governor by virtue of § 129 of Constitution; therefore, separation of powers doctrine is not violated by Lieutenant Governor’s exercising power in Senate pursuant to Senate rules. Dye v. State, 507 So. 2d 332, 1987 Miss. LEXIS 2507 (Miss. 1987).

Although an act of the legislature may appear to the court as morally wrong and unjust, yet it is not for the courts to define the limits of legislative discretion in the absence of constitutional inhibition. Martin v. Dix, 52 Miss. 53, 1876 Miss. LEXIS 163 (Miss. 1876).

18. – – Upon judicial power, encroachment.

Because Miss. Code Ann. §11-1-60(2)(b) does not apply to the verdict, it cannot affect a trial court’s application or non-application of remittitur pursuant to Miss. Code Ann. §11-1-55. Therefore, §11-1-60(2)(b) does not directly conflict with remittitur (a judicial procedure), and does not violate the Mississippi Constitution’s Separation of Powers Clauses, Miss. Const. art. I, §§ 1, 2. Learmonth v. Sears, Roebuck and Co., 710 F.3d 249, 2013 U.S. App. LEXIS 4035 (5th Cir. Miss. 2013).

Miss. Code Ann. §11-51-81’s “three-court rule” is unconstitutional because it usurps the Mississippi Supreme Court’s constitutional rule-making power and violates the doctrine of separation of powers. Thus, any litigant whose case originates in either justice court or municipal court, and whose case is ultimately decided by the circuit court, whether it be via a trial de novo or on appellate review from a final judgment of the county court conducted by the circuit court under the applicable statute, shall have the right to appeal to the Mississippi Supreme Court. Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

The portion of §11-46-6 [repealed] requiring Mississippi courts in determining sovereign immunity to apply the case law as it existed on November 10, 1982, is unconstitutional and void because it “freezes in time and place the common law as it existed at that particular moment,” and does not permit a judge to apply the common law as it exists the moment the judge makes his or her decision; while a court may be told by a statute to apply common law principles in its interpretation, the court cannot also be told that the common law it applies cannot grow or change with the experience of mankind, as such a mandate suffocates the judicial function. Presley v. Mississippi State Highway Com., 608 So. 2d 1288, 1992 Miss. LEXIS 581 (Miss. 1992).

The provisions of Code 1942, § 6334-05 providing for trial de novo before a jury on an appeal in the Circuit court are unconstitutional and invalid as a violation of the provisions of state constitution relating to separation of powers. Loftin v. George County Board of Education, 183 So. 2d 621, 1966 Miss. LEXIS 1426 (Miss. 1966).

It is usurpation of judicial power for legislature to declare suit abated and give permission to others to revive it, though object, reduction of power of officer, be within legislative power, if properly exercised. Miller v. Hay, 143 Miss. 471, 109 So. 16, 1926 Miss. LEXIS 282 (Miss. 1926).

It is not a violation of this section to provide that all questions of negligence and contributory negligence be left to the jury. Natchez & S. R. Co. v. Crawford, 99 Miss. 697, 55 So. 596, 1911 Miss. LEXIS 240 (Miss. 1911).

A direction by the legislature that in estimating damages accruing to the owner of land taken for public use the benefits which will result to the owner shall be allowed in extinguishment of the claim, is judicial, and therefore void. Isom v. Mississippi C. R. Co., 36 Miss. 300, 1858 Miss. LEXIS 98 (Miss. 1858).

Legislature not authorized to construe laws. Planters' Bank of Tennessee v. Black, 19 Miss. 43, 1848 Miss. LEXIS 154 (Miss. 1848); Lawson v. Jeffries, 47 Miss. 686, 1873 Miss. LEXIS 25 (Miss. 1873); McCulloch v. Stone, 64 Miss. 378, 8 So. 236, 1886 Miss. LEXIS 76 (Miss. 1886).

19. – – Discretion of prosecutor, encroachment.

Exercise of prosecutorial discretion in electing, or refusing, to indict criminal defendant under habitual criminal statute (§99-19-81) does not constitute encroachment by prosecutor on judicial power to determine appropriate criminal sentence. Washington v. State, 478 So. 2d 1028, 1985 Miss. LEXIS 2277 (Miss. 1985).

20. – – Upon executive power, encroachment.

There was no violation of the separation of powers requirement where one person served both as chairman of a solid waste management authority and as a county administrator; although involving many duties which could be characterized either as executive or ministerial, the offices were primarily ministerial because the positions existed to carry out the will of the board of supervisors, in whose hands the ultimate decision making power resided. Zimmerman v. Three Rivers Planning & Dev. Dist., 747 So. 2d 853, 1999 Miss. App. LEXIS 173 (Miss. Ct. App. 1999).

Section 37-13-91, the compulsory school attendance law, is unconstitutional insofar as it requires the selection and supervision of school attendance officers to be undertaken by youth court judges; the youth court judge’s selection and supervision of school attendance officers as provided for in the statute violates Article I, §§ 1 and 2 of the Mississippi Constitution-the separation of powers provisions-because the judge is charged with the executive function of administering an existing law, far removed from judiciary functions. In the Interest of R.G., 632 So. 2d 953, 1994 Miss. LEXIS 108 (Miss. 1994).

An employee’s positions of veteran service clerk and inventory control clerk for the county, and his position as a member of the city council, were not held in violation of the separation of powers provision of the Mississippi Constitution, in that his positions with the county were ministerial and did not require that he exercise executive or judicial powers. Ball v. Fitzpatrick, 602 So. 2d 873, 1992 Miss. LEXIS 397 (Miss. 1992).

Statute providing for the regulation, supervision and control of motor carriers is not unconstitutional in providing that in addition to other available remedies, the state, or any party aggrieved by any final finding, order, or judgment of the public service commission, shall have the right, regardless of the amount involved, of appeal to the first judicial district circuit court of Hinds County, Mississippi, since the provision in question merely provides a new method or procedure by which orders of such administrative board may be reviewed by a court, conferring no new judicial power on the court, but simply creating a new procedure by which existing judicial power may be exercised. Dixie Greyhound Lines, Inc. v. Mississippi Public Service Com., 190 Miss. 704, 1 So. 2d 489, 200 So. 579, 1941 Miss. LEXIS 60 (Miss. 1941).

Supreme Court held unauthorized to answer questions whether lieutenant governor’s duty to preside over new senate should be discharged by president pro tempore of preceding senate. In re Opinion of Justices, 148 Miss. 427, 114 So. 887, 1927 Miss. LEXIS 99 (Miss. 1927).

Statute providing for auditing and inspection of public offices did not violate this section as attempting to confer upon executive officers legislative and judicial powers. State ex rel. Knox v. Board of Sup'rs, 141 Miss. 701, 105 So. 541, 1925 Miss. LEXIS 189 (Miss. 1925).

This section is not violated by c 57, Laws of 1904, reimbursing an ex-tax collector whose money had been erroneously paid into the state treasury. Henry v. Carter, 88 Miss. 21, 40 So. 995, 1906 Miss. LEXIS 148 (Miss. 1906).

Acts of the penitentiary board of control within the scope of authority granted by a constitutional act of the legislature will not be reviewed by the courts. Henry v. State, 87 Miss. 1, 39 So. 856 (Miss. 1905).

The courts will not undertake to control the attorney-general in the matter of his official opinions. Woodbury v. McClurg, 78 Miss. 831, 29 So. 514, 1901 Miss. LEXIS 131 (Miss. 1901).

The governor cannot be compelled by mandamus to perform any act. Vicksburg & M. R. Co. v. Lowry, 61 Miss. 102, 1883 Miss. LEXIS 79 (Miss. 1883).

ATTORNEY GENERAL OPINIONS

Clerk at WIC distribution center of county welfare agency is ministerial position and not office; therefore, separation of powers doctrine does not prohibit alderlady from holding this position. Crawford, Sept. 16, 1992, A.G. Op. #92-0707.

Because city councilman and state senator are both within legislative branch, separation of powers does not prohibit person from serving simultaneously in both capacities. Moore, Sept. 24, 1992, A.G. Op. #92-0720.

Administrative law judge for Workers’ Compensation Commission may serve on school board for public schools without violating separation of powers doctrine. Ellis, Nov. 18, 1992, A.G. Op. #92-0819.

Serving in dual capacity of city councilman/state senator would not be violation of doctrine of separation of powers. Jordan, Nov. 25, 1992, A.G. Op. #92-0910.

Because administrative authority to assign courtrooms for convenience of defendants in justice court would not constitute exercise of any core power of judiciary, there would be no violation of doctrine of separation of powers for one person holding offices of mayor and justice court clerk. Young, Dec. 3, 1992, A.G. Op. #92-0914.

Service in two branches of government simultaneously is contrary to the separation of powers doctrine when the acts are ongoing and are in the upper level of governmental affairs and have a substantial policy-making character; since an alderman exercises power at the core of the legislative branch, while a natural gas commissioner performs discretionary, policy making functions, that is, exercises core power in the executive branch, a person would be prohibited from serving simultaneously as an alderman and a commissioner. Gerhart, January 30, 1998, A.G. Op. #98-0040.

Holding the positions of Full Professor of Marine Science, Associate Director of Research and Sponsored Programs and Commissioner on the Commission on Marine Resources, presents no violation of the doctrine of separation of powers. Aston, April 17, 1998, A.G. Op. #98-0172.

A municipal judge may not hold an office or position in the executive branch which involves formulation of economic development policy, zoning or land use, or other policies of the city. Wise, July 24, 1998, A.G. Op. #98-0371.

A person may not simultaneously be a school attendance officer and a county supervisor since a school attendance officer is in the executive branch of government and a county supervisor is an officer of the judicial branch of government. Lanford, July 31, 1998, A.G. Op. #98-0384.

The separation of powers doctrine does not prohibit a person from serving as a city council member and as a bookkeeper in the office of the county tax collector. Fitzpatrick, Jan. 7, 2000, A.G. Op. #99-0719.

The separation of powers doctrine prohibits a person from serving simultaneously as a director of a juvenile detention center and a justice court judge. Perkins, Sr., Jan. 14, 2000, A.G. Op. #99-0724.

A position of Youth Court Investigator and Compliance Officer is not a de facto violation of the separation of powers clause. McGehee, Nov. 17, 2000, A.G. Op. #2000-0640.

A municipal alderman cannot serve as a municipal police officer while continuing to hold the office of alderman, even if the service in question is in two separate municipalities. White, Jan. 11, 2002, A.G. Op. #01-0779.

A county board of supervisors may not appoint a member of the board as Emergency Management Director. Walley, Mar. 15, 2002, A.G. Op. #02-0106.

Service in the national guard simultaneously with service as a municipal alderman would not violate the Mississippi Constitution. Purnell, June 7, 2002, A.G. Op. #02-0257.

A member of the state legislature may simultaneously serve as an elected municipal alderman, as both positions are squarely within the legislative branch of government. White, July 3, 2002, A.G. Op. #02-0134.

The powers and duties of the director of a resources development council the council do not involve the exercise of core powers of the executive branch, and therefore a legislator’s employment as executive director does not give rise to constitutional concern. Ruffin, Sept. 6, 2002, A.G. Op. #02-0516.

City councilman also serving as the executive director of the county emergency communications commission would exercise substantial policy making powers at the core of two branches of government and would be prohibited under separation of powers from simultaneously serving in both capacities. Faneca, Nov. 15, 2002, A.G. Op. #02-0625.

A municipal alderman may serve as a member of the National Guard without running afoul of Miss. Const., art. 1, §§ 1 and 2. Moore, Nov. 15, 2002, A.G. Op. #02-0663.

An individual may not serve as both a correctional officer (executive branch) and a county supervisor (judicial branch) without violating Miss. Const., art. 1, §§ 1 and 2. Epps, Mar. 21, 2003, A.G. Op. #03-0098.

A municipal court judge is in the judicial branch of government and a youth court prosecutor is in the executive branch of government, thereby making the holding of both offices simultaneously a violation of the separation of powers doctrine. Littleton, Mar. 14, 2003, A.G. Op. #03-0122.

The separation of powers doctrine prohibits a person from serving simultaneously as a justice court judge and as a city clerk. Byrd, Mar. 28, 2003, A.G. Op. #03-0119.

A person may not serve as a member of a county board of supervisors while also serving as an elected school board member. Chaney, May 16, 2003, A.G. Op. 03-0232.

The separation of powers doctrine set forth in the Mississippi Constitution prohibits a person from serving simultaneously as a member of the Mississippi House of Representatives and as a member of the Mississippi Civil War Battlefield Commission. Lingle, Sept. 19, 2003, A.G. Op. 03-0456.

A deputy sheriff, upon being sworn in as a city councilman, must vacate his position as a deputy sheriff. Stokes, May 21, 2004, A.G. Op. 04-0206.

A deputy sheriff of a county is an officer in the executive branch of government, therefore, the separation of powers provision of the Mississippi Constitution would apply to this situation and prohibit the party in question from holding both offices. Stokes, May 21, 2004, A.G. Op. 04-0206.

The separation of powers doctrine would prohibit a member of the county board of supervisors from also serving as an investigator with the district attorney’s office. Abron, June, 21, 2004, A.G. Op. 04-0241.

A member of the county board of supervisors would not violate the separation of powers doctrine by also being employed by UPS or Fed Ex. Abron, June, 21, 2004, A.G. Op. 04-0241.

The separation of powers doctrine would not prohibit a member of the county board of supervisors from also serving as a guidance counselor employed by the Department of Corrections in a state prison, or being employed by a private prison. Abron, June, 21, 2004, A.G. Op. 04-0241.

A member of the county board of supervisors would not violate the separation of powers doctrine by also being employed as a security guard by a local bingo hall. Abron, June, 21, 2004, A.G. Op. 04-0241.

The Mississippi Constitution prohibits an individual from holding both the office of alderman and deputy sheriff at the same time. Curtis, July 23, 2004, A.G. Op. 04-0341.

Argument that a city councilman is not subject to the separation of powers doctrine because under the city’s special charter that office exercises both legislative and executive powers lacks merit. McGee, Aug. 6, 2004, A.G. Op. 04-0333.

Upon being sworn in as a member of the House of Representatives, a person vacated his position as a school district trustee. Kemp, Aug. 6, 2004, A.G. Op. 04-0365.

Asking questions and seeking information on the operations of a municipal department by a city councilman for the purposes of reporting back to the full council is permitted. However, if the line is crossed between gathering information and actually making administrative decisions for the department, a violation of the separation of powers doctrine may exist. Rupp, Oct. 1, 2004, A.G. Op. 04-0449.

Any authority a board of aldermen may have with regard to employment, termination, and/or suspension without pay, must be exercised by the body as a whole. An individual alderman has no authority in this regard and no authority to direct the actions of individual employees. Cook, Oct. 15, 2004, A.G. Op. 04-0503.

If the Legislature has decided not to renew the authority of a state agency, then the Governor lacks the authority to re-create that agency using an executive order. McCoy, May 20, 2004, A.G. Op. 04-0227.

An individual can serve as a city alderman and bailiff simultaneously without being in violation of this section. Stockton, Apr. 11, 2005, A.G. Op. 05-0197.

The Separation of Powers doctrine, Miss. Const. of 1890, Art. 1, §§ 1-2, prohibits an individual from holding two offices in two different branches of government simultaneously. An individual may simultaneously serve as a member of a county school board and as county circuit clerk because both offices are within the executive branch of the government. Maples, February 16, 2007, A.G. Op. #07-00074, 2007 Miss. AG LEXIS 22.

Under the separation of powers doctrine, Miss. Const. of 1890, Art. 1, §§ 1-2, one may not simultaneously hold the offices of alderman and school board member because the office of alderman is in the legislative branch of government and the office of school board member is in the executive branch of government. Gibbs, March 9, 2007, A.G. Op. #07-107, 2007 Miss. AG LEXIS 73.

RESEARCH REFERENCES

ALR.

Constitutionality of statute making mere filing of affidavit of bias or prejudice sufficient to disqualify judge. 5 A.L.R. 1275, 46 A.L.R. 1179.

Power of judiciary to compel legislature to make apportionment of representatives or election districts as required by Constitution. 46 A.L.R. 964.

Constitutionality of city manager or commission form of municipal government. 67 A.L.R. 737.

Constitutionality of statutes for formation or change of political districts or municipal corporations as affected by objection that they confer nondelegable powers, or impose nonjudicial functions, on a court. 69 A.L.R. 266.

Office of lieutenant governor as primarily executive or legislative. 70 A.L.R. 1095.

Constitutionality of statute providing for refund of taxes illegally or erroneously exacted. 98 A.L.R. 284.

Power of legislature, absent constitutional provision in that regard, to authorize or require court or justices thereof to render advisory opinion upon request of governor or of either house of legislature. 103 A.L.R. 1087.

Mandamus to governor. 105 A.L.R. 1124.

Availability of writ of prohibition as means of controlling administrative or executive boards or officers. 115 A.L.R. 3, 159 A.L.R. 627.

Power to detach land from municipal corporation, towns, or villages. 117 A.L.R. 267.

Power of legislature respecting admission to bar. 144 A.L.R. 150.

Constitutionality of arbitration statutes. 55 A.L.R.2d 432.

Implied cause of action for damages for violation of provisions of state constitutions. 75 A.L.R.5th 619.

Am. Jur.

16A Am. Jur. 2d, Constitutional Law §§ 202 et seq.

CJS.

C.J.S. Constitutional Law §§ 54 to 59, 111 to 227, 441.

C.J.S. Courts §§ 2 to 15.

C.J.S. States §§ 75-81, 171-174, 240-243.

Law Reviews.

1987 Mississippi Supreme Court Review, Civil procedure. 57 Miss. L. J. 443, August, 1987.

Morton, Rules, rulemaking, and the ruled: the Mississippi Supreme Court as self-proclaimed ruler. 12 Miss. C. L. Rev. 293, Fall, 1991.

Southwick, Separation of Powers at the State Level: Interpretations and Challenges in Mississippi, 72 Miss. L.J. 927, Spring, 2003.

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.

JUDICIAL DECISIONS

1. Encroachment of power – In general.

2. – – Legislative branch, encroachment of power.

3. – – Executive branch, encroachment of power.

4. – – Judicial branch, encroachment of power.

5. Determination of criminal penalties.

6. Judicial review of administrative decisions.

7. Incompatible offices and vacation thereof.

8. Ratification of de facto or improperly appointed officer’s acts.

9. Regulation of public employment.

10. Reimbursement of officials.

1. Encroachment of power – In general.

Senate possesses power to make rules regarding the exercise of legislative powers that inhere in it, and it may confer these powers upon one or more of its members, one of which is Lieutenant Governor by virtue of § 129 of Constitution; therefore, separation of powers doctrine is not violated by Lieutenant Governor’s exercising power in Senate pursuant to Senate rules. Dye v. State, 507 So. 2d 332, 1987 Miss. LEXIS 2507 (Miss. 1987).

The statute giving the circuit judge and governor authority to determine reasonableness and correctness of account for services of accountant in auditing county books is not violative of the Constitution. Jackson County v. Neville, 131 Miss. 599, 95 So. 626, 1923 Miss. LEXIS 206 (Miss. 1923).

2. – – Legislative branch, encroachment of power.

Court of Appeals erred in affirming the denial of defendant’s petition for post-conviction relief because the circuit court lacked jurisdiction and authority to accept his guilty pleas when he never had been charged with a crime, the Legislature did not have power to limit the number of claims that could be plead in a particular pleading, the docket sheet reflected that no criminal information, even assuming one ever existed, was filed with the circuit court, and the criminal files did not include any charging document. Ashwell v. State, 226 So.3d 69, 2017 Miss. LEXIS 341 (Miss. 2017).

2000 Miss. Laws 304, § 3, which abates any suits brought by a municipality to recover additional payments under Miss. Code Ann. §27-65-75 (1972) in excess of the amounts authorized in 2000 Miss. Laws 304, does not violate the separation of powers doctrine, as the Legislature did not revive the right to bring the same suit in the name of another. City of Belmont v. Miss. State Tax Comm'n, 860 So. 2d 289, 2003 Miss. LEXIS 132 (Miss. 2003).

The 1989 Public Trust Tidelands Act (§§29-15-1 through29-15-23) did not violate the separation of powers doctrine in Article 1, § 2 of the Mississippi Constitution by granting the Secretary of State, as a member of the executive branch, discretion in drawing and revising the preliminary tideland boundary map, in spite of the argument that the discretion afforded him in drawing the final boundary map gave him the authority to convey public trust lands which could otherwise be conveyed only by legislative enactment, since his discretion was limited to comments and/or documentation regarding the preliminary map submitted within a 60-day period, and any disagreements or discrepancies resulting from the preliminary map could be either negotiated or brought to trial; the Act did not give the Secretary of State the power or authority to make laws, but rather it provided that he be used as a tool in the implementation of the Act. Secretary of State v. Wiesenberg, 633 So. 2d 983, 1994 Miss. LEXIS 36 (Miss. 1994).

The Board of Trustees of State Institutions of Higher Learning is an executive rather than a legislative body as indicated by the enumeration of the Board of Trustees’ powers and duties contained within the Mississippi Constitution and applicable statutes; thus, appointment of the Board of Trustees by the Governor rather than the legislature is not an encroachment upon the powers of the legislative branch of the government. Van Slyke v. Board of Trustees of State Inst. of Higher Learning, 613 So. 2d 872, 1993 Miss. LEXIS 55 (Miss. 1993).

Claim upon which relief can be granted is stated where allegation is that member of Executive Department of Government is exercising legislative powers within Senate; Court has authority and responsibility to decide question where it is alleged that one arguably member of executive department is exercising legislative powers, where court had for many years entertained and decided controversies wherein parties claimed that members of one department of government were exercising powers in another in violation of constitutional mandate for separation of powers. Dye v. State, 507 So. 2d 332, 1987 Miss. LEXIS 2507 (Miss. 1987).

No violation of this section is involved in the court’s modification of an ordinance annexing territory to a municipality. In re Extension of Boundaries, 237 Miss. 486, 115 So. 2d 323, 1959 Miss. LEXIS 495 (Miss. 1959).

A statute directing organization of a water district if the court finds the project feasible from an engineering standpoint and practical, and that its creation will meet a public necessity and be conducive to the public welfare of the state as a whole, is not unconstitutional as conferring on the judiciary authority to answer legislative questions. Culley v. Pearl River Industrial Com., 234 Miss. 788, 108 So. 2d 390, 1959 Miss. LEXIS 556 (Miss. 1959).

Statutes cannot be saved where the language applies to employees of all corporations, by construing it to apply to corporations engaged in a hazardous business; this is not severance between constitutional and unconstitutional provisions, but judicial legislation. Ballard v. Mississippi Cotton Oil Co., 81 Miss. 507, 34 So. 533, 1902 Miss. LEXIS 212 (Miss. 1902).

3. – – Executive branch, encroachment of power.

Sheriff, rather than a circuit court, was to make hiring, firing, and compensation changes affecting bailiffs, as bailiffs were deputies of the sheriff. A circuit court order and order and opinion stating that bailiffs fell under the authority of the judiciary rather than the sheriff were void in part to the extent that they directly violated the Mississippi Constitution and statutory law. Lewis v. Hinds County Circuit Court, 158 So.3d 1117, 2015 Miss. LEXIS 102 (Miss. 2015).

There was no violation of the separation of powers requirement where one person served both as chairman of a solid waste management authority and as a county administrator; although involving many duties which could be characterized either as executive or ministerial, the offices were primarily ministerial because the positions existed to carry out the will of the board of supervisors, in whose hands the ultimate decision making power resided. Zimmerman v. Three Rivers Planning & Dev. Dist., 747 So. 2d 853, 1999 Miss. App. LEXIS 173 (Miss. Ct. App. 1999).

The court rejected the argument that local governments operate subject to the separation of powers theory of government wherein the mayor is the executive power and board of aldermen are the legislative power and that, therefore, they cannot both exercise appointment powers because that would be a solely executive power vested entirely in the Mayor. Tisdale v. Clay, 728 So. 2d 1084, 1998 Miss. LEXIS 551 (Miss. 1998).

Section 37-13-91, the compulsory school attendance law, is unconstitutional insofar as it requires the selection and supervision of school attendance officers to be undertaken by youth court judges; the youth court judge’s selection and supervision of school attendance officers as provided for in the statute violates Article I, §§ 1 and 2 of the Mississippi Constitution-the separation of powers provisions-because the judge is charged with the executive function of administering an existing law, far removed from judiciary functions. In the Interest of R.G., 632 So. 2d 953, 1994 Miss. LEXIS 108 (Miss. 1994).

Duties and responsibilities, including allowing authority for Educational Television to contract (§37-63-11), giving concurrence for the use of funds to travel outside the continental United States (§25-3-41), advertising for and accepting bids on equipment for the State Crime Laboratory (§63-11-47), granting authority for the purchase of motor vehicles by state departments, institutions, or agencies (§25-1-77), and approving dispersement of funds by the Mississippi Air and Water Pollution Commission (§49-17-13), are administrative functions within the prerogative of the executive department, and statutes vesting those powers and functions in members of the legislature violate Miss Const Art 1 § 2 and are unconstitutional. Alexander v. State, 441 So. 2d 1329, 1983 Miss. LEXIS 3007 (Miss. 1983).

Statute which allowed the Executive Branch to make appropriations decisions was constitutional, as it did not violate the doctrine of separation of powers, because budget reductions imposed on state agencies by the Governor of the State of Mississippi pursuant to the statute were an exercise of the Executive’s constitutional power to control the budget. Clark v. Bryant, 253 So.3d 297, 2018 Miss. LEXIS 385 (Miss. 2018).

4. – – Judicial branch, encroachment of power.

The time frame for viewing ballots after an election is a legislative function, and the Supreme Court of Mississippi has no authority to modify the statutory limitation. Simply put, a substantive right is created by statute to view the ballot-box contents for a limited time after an election is conducted, and this right does not restrict any party’s discovery rights under the Mississippi Rules of Civil Procedure. Smith v. Webster, 233 So.3d 242, 2017 Miss. LEXIS 207 (Miss. 2017).

To the extent Tuck v. Blackmon, 798 So. 2d 402 (Miss. 2001) held that the judiciary possesses some power to interfere in the Legislature’s internal procedure, it is overruled; at least to the extent that the political question doctrine turns on a textually demonstrable constitutional commitment of the issue to a coordinate branch political department it cannot be considered a matter of discretion given the Mississippi Constitution’s absolute separation of powers. Gunn v. Hughes, 210 So.3d 969, 2017 Miss. LEXIS 54 (Miss. 2017).

Petition of a member of the Legislature raised an issue the judiciary lacked authority to adjudicate because the constitutional authority, and duty, to decide whether the speaker of the house violated the constitutional provision requiring bills to be read upon a member’s request was squarely within the power of the legislative branch; by requesting the courts to force the speaker to read bills in a particular manner, the member sought to involve the judiciary in legislative procedural matters. Gunn v. Hughes, 210 So.3d 969, 2017 Miss. LEXIS 54 (Miss. 2017).

Because Miss. Code Ann. §11-1-60(2)(b) does not apply to the verdict, it cannot affect a trial court’s application or non-application of remittitur pursuant to Miss. Code Ann. §11-1-55. Therefore, §11-1-60(2)(b) does not directly conflict with remittitur (a judicial procedure), and does not violate the Mississippi Constitution’s Separation of Powers Clauses, Miss. Const. art. I, §§ 1, 2. Learmonth v. Sears, Roebuck and Co., 710 F.3d 249, 2013 U.S. App. LEXIS 4035 (5th Cir. Miss. 2013).

Miss. Code Ann. §11-51-81’s “three-court rule” is unconstitutional because it usurps the Mississippi Supreme Court’s constitutional rule-making power and violates the doctrine of separation of powers. Thus, any litigant whose case originates in either justice court or municipal court, and whose case is ultimately decided by the circuit court, whether it be via a trial de novo or on appellate review from a final judgment of the county court conducted by the circuit court under the applicable statute, shall have the right to appeal to the Mississippi Supreme Court. Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

Trial judge is not required, prior to accepting a guilty plea, to inform a defendant of the sex offender registration laws, Miss. Code Ann. §§45-33-25 through 31 because Miss. Code Ann. §45-33-39(1) confers no right on a criminal defendant charged with a sex crime and imposes no duty on trial judges, and judicial rules, such as the rules of evidence, civil procedure, criminal procedure, and professional conduct, neither come from the Legislature nor require legislative approval; the Mississippi legislative branch of government may not, through procedural legislation, control the function of the judiciary, and subservience to legislation that mandates what trial judges must say to a defendant in a courtroom during a plea hearing would be tantamount to both an abdication of judicial duty, as well as tacit approval of legislative usurpation of the judicial prerogative. Magyar v. State, 18 So.3d 807, 2009 Miss. LEXIS 388 (Miss. 2009), cert. denied, 560 U.S. 903, 130 S. Ct. 3274, 176 L. Ed. 2d 1182, 2010 U.S. LEXIS 3999 (U.S. 2010).

The provisions of Code 1942 § 6334-05 providing for trial de novo before a jury on an appeal in the Circuit court are unconstitutional and invalid as a violation of the provisions of constitution relating to separation of powers. Loftin v. George County Board of Education, 183 So. 2d 621, 1966 Miss. LEXIS 1426 (Miss. 1966).

This section and § 144 of the Constitution, providing that judicial power shall be vested in the courts, are not violated by Code 1942, § 4073, authorizing Land Commissioner, with written approval of Attorney General, to strike land from lists of lands sold to State for delinquent taxes, when tax sale was void, since § 4073 does not empower Attorney General to usurp function of courts or to act judicially, but requires him to perform a constitutional duty of his office by making his legal learning and discretionary opinion available to proper state officer in exercise of state function in a matter of public policy. State v. Southern Pine Co., 205 Miss. 80, 38 So. 2d 442, 1949 Miss. LEXIS 414 (Miss. 1949).

Legislative and not judicial power held exercised in reducing authority of revenue agent, though it work abatement of a suit. Miller v. Globe-Rutgers Fire Ins. Co., 143 Miss. 489, 108 So. 180, 1926 Miss. LEXIS 284 (Miss. 1926).

Statute providing for supervision and inspection of public offices and public institutions did not contravene this section as attempting to confer judicial and legislative powers upon executive officers. State ex rel. Knox v. Board of Sup'rs, 141 Miss. 701, 105 So. 541, 1925 Miss. LEXIS 189 (Miss. 1925).

5. Determination of criminal penalties.

Exercise of prosecutorial discretion in electing, or refusing, to indict criminal defendant under habitual criminal statute (§99-19-81) does not constitute encroachment by prosecutor on judicial power to determine appropriate criminal sentence. Washington v. State, 478 So. 2d 1028, 1985 Miss. LEXIS 2277 (Miss. 1985).

Under the Uniform Controlled Substances Law, the penalties prescribed for violations thereof are inextricably tied to the various schedules, and therefore the portions of Code 1972, §41-29-111 by which the state board of health is given the authority to move a substance from one schedule to another, to add substances to any schedule, and to delete substances from any schedule are an unconstitutional attempt to delegate the authority to define crimes and fix the punishments therefor which is vested exclusively in the legislature; such unconstitutional portions are separable from the remaining provisions of the Uniform Controlled Substances Law. Howell v. State, 300 So. 2d 774, 1974 Miss. LEXIS 1632, 1974 Miss. LEXIS 1633 (Miss. 1974).

6. Judicial review of administrative decisions.

Local board is in the best position to interpret its own local ordinances; thus, by giving great weight to the board’s interpretation, the supreme court ensures it sticks to its constitutional role as the judiciary, and the supreme court restrains its branch from becoming a super-municipal board, a role that would certainly usurp the powers of the local governing body. Hatfield v. Bd. of Supervisors of Madison Cty., 235 So.3d 18, 2017 Miss. LEXIS 315 (Miss. 2017).

Mississippi’s law does not run afoul of the constitution; the board of supervisors is not overstepping its bounds into the judiciary’s role by interpreting local ordinances but is simply acting within its own established role as creator and enforcer of local law, and similarly, by giving deference to a local board’s interpretation, the supreme court is not ceding its judicial power. Hatfield v. Bd. of Supervisors of Madison Cty., 235 So.3d 18, 2017 Miss. LEXIS 315 (Miss. 2017).

This section does not preclude an appeal to the courts from an order of the Educational Finance Commission. Board of Education v. State Educational Finance Com., 243 Miss. 782, 138 So. 2d 912, 1962 Miss. LEXIS 408 (Miss. 1962).

7. Incompatible offices and vacation thereof.

Legislator could not simultaneously serve dual roles as a state representative and a city’s selectman because the service in both roles violated separation of powers; the role of state representative was legislative in nature, and the role of selectman was a mixed legislative and executive role. Myers v. City of McComb, 943 So. 2d 1, 2006 Miss. LEXIS 537 (Miss. 2006).

Although §21-23-5, which allows a mayor or mayor pro tempore of a small municipality to serve as municipal judge, is not unconstitutional under the sections of the state constitution dealing with separation of powers, there is an unavoidable conflict of interest in the holding of the dual offices of mayor and municipal judge, and thus the statute will have no future application as it is contrary to the proper functioning of the judiciary. In re Inquiry Concerning Mun. Judges, 631 So. 2d 758, 1994 Miss. LEXIS 34 (Miss. 1994).

An employee’s positions of veteran service clerk and inventory control clerk for the county, and his position as a member of the city council, were not held in violation of the separation of powers provision of the Mississippi Constitution, in that his positions with the county were ministerial and did not require that he exercise executive or judicial powers. Ball v. Fitzpatrick, 602 So. 2d 873, 1992 Miss. LEXIS 397 (Miss. 1992).

The participation of the Lieutenant Governor on the Joint Legislative Budget Committee was not a violation of the constitutional provision for separation of executive and legislative powers. The Lieutenant Governor is constitutionally an officer of both the executive and legislative departments and is eligible as President of the Senate to receive the legislative powers conferred upon him by the legislation creating the Joint Legislative Budget Committee. Neither the statute creating the Joint Legislative Budget Committee nor the Lieutenant Governor’s service on the committee constituted a violation of the constitutionally mandated separation of powers. Kirksey v. Dye, 564 So. 2d 1333, 1990 Miss. LEXIS 38 (Miss. 1990).

Adjutant general of Mississippi Air National Guard is not prohibited by Mississippi Constitution from appointing state senator to position of major general; however, senator may be prohibited from accepting appointment. Roberts v. Troutt, 475 So. 2d 421, 1985 Miss. LEXIS 2143 (Miss. 1985).

Under Miss Const Art I §§ 1 and 2, a justice court judge, a member of the judicial branch of government, could not serve in that office and at the same time hold a job as a law enforcement official, since law enforcement officials are members of the executive branch and a person may not lawfully be a part of both branches at the same time. In re Anderson, 451 So. 2d 232, 1984 Miss. LEXIS 1783 (Miss. 1984).

Duly elected Justice Court Judge, who in such capacity is a member of the judicial branch of government, may not simultaneously serve as a policeman, which said position designates a person as a member of the executive branch of government; pursuant to the constitution, no person may serve in two branches of government at the same time. In re Anderson, 447 So. 2d 1275, 1984 Miss. LEXIS 1631 (Miss. 1984).

Former §57-1-3(4), which regulates the Board of Economic Development, §25-11-15, which regulates the Board of Trustees of the Public Employees’ Retirement System, §25-53-7, which regulates the Central Data Processing Authority, §25-9-109, which regulates the State Personnel Board, §43-13-107, which regulates the Medicaid Commission, §29-5-1, which regulates the Capitol Commission, §49-5-61, which regulates the Wild Life Heritage Committee, and §47-5-12 [repealed], which regulates the Board of Corrections, are unconstitutional, insofar as they create executive boards and commissions with legislative members, in violation of Miss Const Art 1 § 2, and, accordingly, named legislators could not constitutionally perform any of the executive functions of those boards and commissions; moreover, §§27-103-1,29-5-1,57-1-3,43-13-107,25-53-7,25-9-109, and49-5-61, are unconstitutional insofar as they mandate legislative appointments to executive offices. Alexander v. State, 441 So. 2d 1329, 1983 Miss. LEXIS 3007 (Miss. 1983).

Where members of the Commission of Budget and Accounting, whose activities include the budget-making process, the budget-control process, regulating purchases made by state agencies, administering state employees’ life and health insurance plans, and miscellaneous duties, held office in the legislative department of government, and were voting members of each, the Commission as constituted violated Miss Const Art 1 § 2, and §27-101-1(1), insofar as it was composed simultaneously of members of both the legislative and executive departments as voting members. Alexander v. State, 441 So. 2d 1329, 1983 Miss. LEXIS 3007 (Miss. 1983).

Acceptance of office of school trustee does not vacate office of supervisor. Broadus v. State, 132 Miss. 828, 96 So. 745, 1923 Miss. LEXIS 81 (Miss. 1923).

Statute making the mayor of a town ex-officio justice of the peace does not violate this section. Poplarville Sawmill Co. v. A. Marx & Sons, 117 Miss. 10, 77 So. 815, 1917 Miss. LEXIS 163 (Miss. 1917).

A supervisor accepting an appointment as a member of the board of commissioners of the Yazoo Mississippi Delta board vacates the former office. Haley v. State, 108 Miss. 899, 67 So. 498, 1914 Miss. LEXIS 288 (Miss. 1914).

A justice of the peace accepting the office of mayor automatically vacates the former office. State ex rel. Attorney Gen. v. Armstrong, 91 Miss. 513, 44 So. 809, 1907 Miss. LEXIS 144 (Miss. 1907); Poplarville Sawmill Co. v. A. Marx & Sons, 117 Miss. 10, 77 So. 815, 1917 Miss. LEXIS 163 (Miss. 1917).

8. Ratification of de facto or improperly appointed officer’s acts.

Indictment in murder prosecution held not void because grand juror allegedly served both as election commissioner and grand juror in finding and presentment of indictment. Robinson v. State, 178 Miss. 568, 173 So. 451, 1937 Miss. LEXIS 228 (Miss. 1937).

The official acts of a de facto officer made valid by the statutes is not violative of the Constitution although he is incompetent to hold the office. B. Altman & Co. v. Wall, 111 Miss. 198, 71 So. 318, 1916 Miss. LEXIS 268 (Miss. 1916).

9. Regulation of public employment.

Administration of public purchasing, administration of state employee’s group insurance program, and authority to approve rules adopted by the State Auditor for establishing a merit system for his employees, are administrative functions within the prerogative of the executive department, and thus, named legislators could not constitutionally perform any of those functions because they properly belonged to the executive department; moreover, the statutes vesting those powers in members of the legislature are unconstitutional. Alexander v. State, 441 So. 2d 1329, 1983 Miss. LEXIS 3007 (Miss. 1983).

10. Reimbursement of officials.

Chapter 57, Laws of 1904, reimbursing an ex-tax collector for money erroneously paid into state treasury is not in violation of this section. Henry v. Carter, 88 Miss. 21, 40 So. 995, 1906 Miss. LEXIS 148 (Miss. 1906).

ATTORNEY GENERAL OPINIONS

Service by county supervisor or county port authority commissioner on board of private nonprofit organization does not present separation of powers issue and does not constitute a violation of Article 1 Section 2 of Mississippi Constitution. Mullins, Jan. 27, 1993, A.G. Op. #93-0026.

Serving as a member of a Port Commission in the executive branch of government and as an Alderman of a municipality in the legislative branch of government violates the separation of powers doctrine, and an individual that accepts the Office of Alderman would at once vacate the office of Port Commissioner. O’Neal, July 25, 1997, A.G. Op. #97-0392.

The Mississippi Constitution prohibits a person from serving simultaneously as a city council member within the legislative branch of government and as a commissioner of the Pine Belt Regional Solid Waste Management Authority within the executive branch of government. Bailey, July 18, 1997, A.G. Op. #97-0411.

An alderman may also serve a municipality as a volunteer librarian, unless the State Ethics Commission finds otherwise. Williamson, Aug. 1, 1997, A.G. Op. #97-0436.

No separation of powers problem is presented where a municipal clerk also serves as a part time librarian, since both positions are part of the executive branch of government. Estep, Aug. 29, 1997, A.G. Op. #97-0491.

A person cannot simultaneously serve as a municipal councilman in the legislative branch of government and as a park commissioner appointed by a board of supervisors in the executive branch of government. Magee, Aug. 8, 1997, A.G. Op. #97-0492.

Service in two branches of government simultaneously is contrary to the separation of powers doctrine when the acts are ongoing and are in the upper level of governmental affairs and have a substantial policy-making character; since an alderman exercises power at the core of the legislative branch, while a natural gas commissioner performs discretionary, policy making functions, that is, exercises core power in the executive branch, a person would be prohibited from serving simultaneously as an alderman and a commissioner. Gerhart, January 30, 1998, A.G. Op. #98-0040.

Holding the positions of Full Professor of Marine Science, Associate Director of Research and Sponsored Programs and Commissioner on the Commission on Marine Resources, presents no violation of the doctrine of separation of powers. Aston, April 17, 1998, A.G. Op. #98-0172.

A municipal judge may not hold an office or position in the executive branch which involves formulation of economic development policy, zoning or land use, or other policies of the city. Wise, July 24, 1998, A.G. Op. #98-0371.

A person may not simultaneously be a school attendance officer and a county supervisor since a school attendance officer is in the executive branch of government and a county supervisor is an officer of the judicial branch of government. Lanford, July 31, 1998, A.G. Op. #98-0384.

The separation of powers doctrine does not prohibit a person from serving as a city council member and as a bookkeeper in the office of the county tax collector. Fitzpatrick, Jan. 7, 2000, A.G. Op. #99-0719.

The separation of powers doctrine prohibits a person from serving simultaneously as a director of a juvenile detention center and a justice court judge. Perkins, Sr., Jan. 14, 2000, A.G. Op. #99-0724.

A position of Youth Court Investigator and Compliance Officer is not a de facto violation of the separation of powers clause. McGehee, Nov. 17, 2000, A.G. Op. #2000-0640.

A municipal alderman cannot serve as a municipal police officer while continuing to hold the office of alderman, even if the service in question is in two separate municipalities. White, Jan. 11, 2002, A.G. Op. #01-0779.

A county board of supervisors may not appoint a member of the board as Emergency Management Director. Walley, Mar. 15, 2002, A.G. Op. #02-0106.

Service in the national guard simultaneously with service as a municipal alderman would not violate the Mississippi Constitution. Purnell, June 7, 2002, A.G. Op. #02-0257.

A member of the state legislature may simultaneously serve as an elected municipal alderman, as both positions are squarely within the legislative branch of government. White, July 3, 2002, A.G. Op. #02-0134.

The powers and duties of the director of a resources development council do not involve the exercise of core powers of the executive branch, and therefore a legislator’s employment as executive director does not give rise to constitutional concern. Ruffin, Sept. 6, 2002, A.G. Op. #02-0516.

Serving both as a member of the Mississippi Legislature and as a director on the board of a human resource agency violates the constitutional prohibition against a person in one branch of government exercising any power belonging to any other branch of government. Cockrell, Oct. 25, 2002, A.G. Op. #02-0584.

Since community action agencies are “private, non-profit, non-government bodies”, the separation of powers doctrine would have no application. Cockrell, Oct. 25, 2002, A.G. Op. #02-0584.

City councilman also serving as the executive director of the county emergency communications commission would exercise substantial policy making powers at the core of two branches of government and would be prohibited under separation of powers from simultaneously serving in both capacities. Faneca, Nov. 15, 2002, A.G. Op. #02-0625.

A municipal alderman may serve as a member of the National Guard without running afoul of Miss. Const., Art. 1, §§ 1 and 2. Moore, Nov. 15, 2002, A.G. Op. #02-0663.

An individual may not serve as both a correctional officer (executive branch) and a county supervisor (judicial branch) without violating Miss. Const., Art. 1, §§ 1 and 2. Epps, Mar. 21, 2003, A.G. Op. #03-0098.

A municipal court judge is in the judicial branch of government and a youth court prosecutor is in the executive branch of government, thereby making the holding of both offices simultaneously a violation of the separation of powers doctrine. Littleton, Mar. 14, 2003, A.G. Op. #03-0122.

The separation of powers doctrine prohibits a person from serving simultaneously as a justice court judge and as a city clerk. Byrd, Mar. 28, 2003, A.G. Op. #03-0119.

A person may not serve as a member of a county board of supervisors while also serving as an elected school board member. Chaney, May 16, 2003, A.G. Op. 03-0232.

The separation of powers doctrine set forth in the Mississippi Constitution prohibits a person from serving simultaneously as a member of the Mississippi House of Representatives and as a member of the Mississippi Civil War Battlefield Commission. Lingle, Sept. 19, 2003, A.G. Op. 03-0456.

The separation of powers doctrine applies to local government. Griffin, May 21, 2004, A.G. Op. 04-0200.

A person holding both the positions of city councilman and trustee for a county owned hospital would violate the separation of powers clause of the Mississippi Constitution. Griffin, May 21, 2004, A.G. Op. 04-0200.

A deputy sheriff, upon being sworn in as a city councilman, must vacate his position as a deputy sheriff. Stokes, May 21, 2004, A.G. Op. 04-0206.

A deputy sheriff of a county is an officer in the executive branch of government, therefore, the separation of powers provision of the Mississippi Constitution would apply to this situation and prohibit the party in question from holding both offices. Stokes, May 21, 2004, A.G. Op. 04-0206.

The separation of powers doctrine would prohibit a member of the county board of supervisors from also serving as an investigator with the district attorney’s office. Abron, June, 21, 2004, A.G. Op. 04-0241.

A member of the county board of supervisors would not violate the separation of powers doctrine by also being employed by UPS or Fed Ex. Abron, June, 21, 2004, A.G. Op. 04-0241.

The separation of powers doctrine would not prohibit a member of the county board of supervisors from also serving as a guidance counselor employed by the Department of Corrections in a state prison, or being employed by a private prison. Abron, June, 21, 2004, A.G. Op. 04-0241.

A member of the county board of supervisors would not violate the separation of powers doctrine by also being employed as a security guard by a local bingo hall. Abron, June, 21, 2004, A.G. Op. 04-0241.

The Mississippi Constitution prohibits an individual from holding both the office of alderman and deputy sheriff at the same time. Curtis, July 23, 2004, A.G. Op. 04-0341.

Argument that a city councilman is not subject to the separation of powers doctrine because under the city’s special charter that office exercises both legislative and executive powers lacks merit. McGee, Aug. 6, 2004, A.G. Op. 04-0333.

Upon being sworn in as a member of the House of Representatives, a person vacated his position as a school district trustee. Kemp, Aug. 6, 2004, A.G. Op. 04-0365.

Asking questions and seeking information on the operations of a municipal department by a city councilman for the purposes of reporting back to the full council is permitted. However, if the line is crossed between gathering information and actually making administrative decisions for the department, a violation of the separation of powers doctrine may exist. Rupp, Oct. 1, 2004, A.G. Op. 04-0449.

Any authority a board of aldermen may have with regard to employment, termination, and/or suspension without pay, must be exercised by the body as a whole. An individual alderman has no authority in this regard and no authority to direct the actions of individual employees. Cook, Oct. 15, 2004, A.G. Op. 04-0503.

If the Legislature has decided not to renew the authority of a state agency, then the Governor lacks the authority to re-create that agency using an executive order. McCoy, May 20, 2004, A.G. Op. 04-0227.

Service by one individual in the positions of police chief and alderman simultaneously would be a violation of Miss. Const. Art. 1, § 2. Miller, Jan. 21, 2005, A.G. Op. 05-0013.

Firefighter employed by one municipality may lawfully run for the position of alderman in another municipality and, if elected may simultaneously serve in those two positions. Davis, Mar. 11, 2005, A.G. Op. 05-0106.

An individual can serve as a city alderman and bailiff simultaneously without being in violation of this section. Stockton, Apr. 11, 2005, A.G. Op. 05-0197.

The separation of powers provision of the Mississippi Constitution would not prohibit someone from simultaneously being employed in a non-law enforcement administrative capacity for the sheriff’s office and on the city council for a municipality in the same county. Faneca, July 1, 2005, A.G. Op. 05-0328.

Simultaneous service as a justice court judge and a municipal employee would not automatically be a violation of the separation of powers clause. Only if each position exercises core powers of the branch of government in which it may be found will a violation occur. Glover, July 8, 2005, A.G. Op. 05-0342.

It would be a violation of the separation of powers doctrine for a county prosecuting attorney to simultaneously serve as a municipal court judge, and likewise for a town board attorney to simultaneously serve as a municipal court judge. Ready, Aug. 8, 2005, A.G. Op. 05-0363; but see Fondren, Dec. 16, 2005, A.G. Op. 05-0562.

Since the position of county fire coordinator and the office of alderman exercise core powers of two different departments of government, executive and legislative, Miss. Const., Art. 1, § 2, would prohibit an individual from occupying said position and office at the same time. Smith, Aug. 8, 2005, A.G. Op. 05-0380.

The separation of powers doctrine would not prohibit a legislator from being employed as a physician by a community hospital. Smith, Aug. 12, 2005, A.G. Op. 05-0424.

A city attorney may also serve as a member of the house of representatives in the state legislature. Croft, Aug. 26, 2005, A.G. Op. 05-0431.

Under the separation of powers doctrine there is no prohibition against an individual’s simultaneously serving as city alderman and a county “fire training officer.” Cobbins, Oct. 7, 2005, A.G. Op. 05-0486.

There would be no separation of powers violation for an individual to serve as municipal court judge and as the board attorney for the county utility district. To the extent this opinion conflicts with prior opinions on the issue of board attorneys/separation of powers conflicts, they are hereby withdrawn, including, but not limited to: Ready, August 8, 2005, A.G. Op. 05-0363 and Lowrey, Aug. 23, 1995, A.G. Op. 95-0505, Fondren, Dec. 16, 2005, A.G. Op. 05-0562.

Since a county board of supervisors exercises judiciary branch powers, and a regional solid waste management authority is in the executive branch, the separation of powers doctrine prohibits a supervisor in a non-situs county or district for the facility from serving on the waste management authority board. Akins, July 17, 2006, A.G. Op. 06-0335.

For purposes of application of the separation of powers doctrine, under a council-manager form of government, a council member is an officer in the legislature branch of government. Tynes, July 27, 2006, A.G. Op. 06-0277.

For purposes of application of the separation of powers doctrine, a local school board member is an officer exercising powers in the executive branch of government. Bounds, July 27, 2006, A.G. Op. 06-0276.

There is no constitutional prohibition against an individual serving simultaneously as a member of the county school board and as a member of the county zoning commission. Meadows, Sept. 1, 2006, A.G. Op. 06-0418.

The separation of powers doctrine would prohibit persons from simultaneously serving on the county board of supervisors and the initial board of directors for a public improvement district. Dulaney, Oct. 13, 2006, A.G. Op. 06-0497.

An individual serving as both a state representative and a member of a city preservation commission would violate the doctrine of separation of powers. Collins, Nov. 10, 2006, A.G. Op. 06-0565.

A justice court judge may also serve as city attorney without violating the separation of powers doctrine. Perkins, Nov. 10, 2006, A.G. Op. 06-0577.

Where transfer of title to a building by a company to a county is followed by temporary retention of possession by the donating company, and the eighteen-months possession of the building by the company is presumably far less than the building’s appraisal value, therefore, the possession of the building after transfer would not be an impermissible donation. Crow, Dec. 8, 2006, A.G. Op. 06-0583.

An individual is prohibited from simultaneously serving as director of parks and recreation for a city and as a member of the county board of supervisors. Wilcox, Dec. 8, 2006, A.G. Op. 06-0591.

There is no prohibition against an alderman being a candidate for county school superintendent. Shoemake, Dec. 22, 2006, A.G. Op. 06-0630.

The Separation of Powers doctrine, Miss. Const. of 1890, Art. 1, §§ 1-2, prohibits an individual from holding two offices in two different branches of government simultaneously. An individual may simultaneously serve as a member of a county school board and as county circuit clerk because both offices are within the executive branch of the government. Maples, February 16, 2007, A.G. Op. #07-00074, 2007 Miss. AG LEXIS 22.

Under the separation of powers doctrine, Miss. Const. of 1890, Art. 1, §§ 1-2, one may not simultaneously hold the offices of alderman and school board member because the office of alderman is in the legislative branch of government and the office of school board member is in the executive branch of government. Gibbs, March 9, 2007, A.G. Op. #07-107, 2007 Miss. AG LEXIS 73.

The separation of powers doctrine, Miss. Const. of 1890, Art. 1, § 2, does not prohibit a city firefighter from serving simultaneously as a county supervisor. Although the two positions are within separate branches of the county government, a firefighter does not exercise substantial policy-making power at the core of the executive branch so there is no conflict. Inquiries concerning potential ethics issues should be referred to the Ethics Commission. Bowen, March 2, 2007, A.G. Op. #07-00094, 2007 Miss. AG LEXIS 85.

RESEARCH REFERENCES

ALR.

Resignation of one office as affecting eligibility to another office during term of former office. 5 A.L.R. 117, 40 A.L.R. 945.

Effect of election to or acceptance of one office by incumbent of another where both cannot be held by same person. 100 A.L.R. 1162.

Other public offices or employments within prohibition as regards judicial officers of constitutional or statutory provisions against holding more than one office. 89 A.L.R. 1113.

Am. Jur.

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

42 Am. Jur. (1st ed), Public Officers and Employees §§ 60 et seq.

CJS.

C.J.S. Constitutional Law §§ 54 to 59, 111 to 227, 441.

C.J.S. Officers and Public Employees §§ 37-42, 119, 120.

Law Reviews.

1983 Mississippi Supreme Court Review: State legislators serving on state executive boards. 54 Miss L. J. 46, March 1984.

1987 Mississippi Supreme Court Review, Civil procedure. 57 Miss. L. J. 443, August, 1987.

Morton, Rules, rulemaking, and the ruled: the Mississippi Supreme Court as self-proclaimed ruler. 12 Miss. C. L. Rev. 293, Fall, 1991.

Southwick, Separation of Powers at the State Level: Interpretations and Challenges in Mississippi, 72 Miss. L.J. 927, Spring, 2003.

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.

Editor’s Note —

Former Section 3 stated the limits and boundaries of the state of Mississippi.

The repeal of Section 3 of Article 2 of the Mississippi Constitution of 1890 was proposed by Laws, 1990, Ch. 692 (Senate Concurrent Resolution No. 520), and upon ratification by the electorate on November 6, 1990, was deleted from the Constitution by proclamation of the Secretary of State on December 19, 1990.

JUDICIAL DECISIONS

1. In general.

Resolution of disagreement between United States, Mississippi and Alabama with respect to state borders, in connection with waters of Mississippi Sound. United States v. Louisiana, 507 U.S. 7, 113 S. Ct. 1238, 122 L. Ed. 2d 381, 1993 U.S. LEXIS 1763 (U.S. 1993).

Private plaintiffs having initiated action against private defendants in District Court to quiet title to property riparian to Mississippi River, Louisiana having filed a third-party complaint against Mississippi seeking to determine boundary between states, and District Court having denied leave to Louisiana to file bill and then finding land to be part of Mississippi uncompromising language of 28 USCS § 1251(a), which gives original and exclusive jurisdiction to Supreme Court over controversies between two or more States, deprived District Court of jurisdiction over Louisiana’s third-party complaint. While District Court’s adjudication of private action involving boundary did not violate section, adjudication of such action would not be binding on states in any way. However, because both District Court and Court of Appeals intermixed questions of title and location of boundary, matter would be remanded to determine whether, on record, claims of title may fairly be decided without additional proceedings in District Court. Mississippi v. Louisiana, 506 U.S. 73, 113 S. Ct. 549, 121 L. Ed. 2d 466, 1992 U.S. LEXIS 7977 (U.S. 1992).

Luna Bar came into existence by accretion to Carter Point and is, and was, part of Mississippi. Mississippi v. Arkansas, 415 U.S. 289, 94 S. Ct. 1046, 39 L. Ed. 2d 333, 1974 U.S. LEXIS 102 (U.S. 1974).

The Supreme Court will take judicial knowledge of the territorial boundaries of the state. Graham v. State, 196 Miss. 382, 17 So. 2d 210, 1944 Miss. LEXIS 204 (Miss. 1944).

For a decision with reference to boundary line between Louisiana and Mississippi see Louisiana v. Mississippi, 202 U.S. 1, 26 S. Ct. 408, 50 L. Ed. 913, 1906 U.S. LEXIS 1516 (U.S. 1906).

The jurisdiction of the state extends as far out into the sea as may be necessary for public safety. Martin v. O’Brien, 34 Miss. 21 (1857), construing former Art. 2, § 3.

RESEARCH REFERENCES

ALR.

Right of political division to challenge acts or proceedings by which its boundaries or limits are affected. 86 A.L.R. 1367.

CJS.

C.J.S. States §§ 12-36.

Law Reviews.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

JUDICIAL DECISIONS

1. Elections.

2. Initiative and referendum.

3. Employment and labor relations.

4. Commerce and trade.

5. Access to courts.

1. Elections.

The appointment of members to the Board of Trustees of State Institutions of Higher Learning does not violate the principle of “one-man, one-vote”; the “one-man, one-vote” rule does not apply to appointed positions, and therefore is not applicable to appointed members of the Board of Trustees. Van Slyke v. Board of Trustees of State Inst. of Higher Learning, 613 So. 2d 872, 1993 Miss. LEXIS 55 (Miss. 1993).

The statute which provides 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).

2. Initiative and referendum.

Mississippi Constitution Article III, §§ 5 and 6 do not compel a resurrection of the initiative and referendum petition procedure, which vested in the electorate the power to enact constitutional amendments and legislative measures and the power to reject acts passed by the legislature. State ex rel. Moore v. Molpus, 578 So. 2d 624, 1991 Miss. LEXIS 186 (Miss. 1991).

3. Employment and labor relations.

The statute making it unlawful for a certain class of employers to work their employees over ten hours per day is not violative of this section. State v. J. J. Newman Lumber Co., 102 Miss. 802, 59 So. 923, 1912 Miss. LEXIS 125 (Miss. 1912).

4. Commerce and trade.

Code 1942, § 1108, known as “Fair Trade Act,” permitting producer, manufacturer or owner to contract with retailer as to resale price of his own product which is in fair and open competition with commodities of same general class produced by others, does not violate this section. W. A. Sheaffer Pen Co. v. Barrett, 209 Miss. 1, 45 So. 2d 838, 1950 Miss. LEXIS 357 (Miss. 1950).

5. Access to courts.

Circuit court properly dismissed a prisoner’s 42 U.S.C.S. § 1983 action against a circuit court clerk alleging she violated his access to courts right; based on the prisoner’s own dilatory actions related to certain summonses, the isolated failure of the clerk to issue the summonses was not an actionable interference with the prisoner’s access to courts right. Duncan v. Johnson, 14 So.3d 760, 2009 Miss. App. LEXIS 130 (Miss. Ct. App.), cert. denied, 15 So.3d 426, 2009 Miss. LEXIS 374 (Miss. 2009).

RESEARCH REFERENCES

CJS.

C.J.S. States §§ 1, 2, 33.

Law Reviews.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond. 56 Miss L. J. 73, April, 1986.

JUDICIAL DECISIONS

1. In general.

2. Relation back of constitutional amendment.

3. Initiative and referendum.

4. Cooperation between State and Federal governments.

5. Subjects of police power–In general.

6. ––– Businesses and occupations, subjects of police power.

7. ––– Corporations, subjects of police power.

8. ––– Drainage legislation, subjects of police power.

9. ––– Fishing, subjects of police power.

10. ––– Labor relations and employment, subjects of police power.

11. ––– Railroads, subjects of police power.

12. ––– Telegraphs and telephones, subjects of police power.

1. In general.

Regulation of business or profession to come within police power of state must have reasonable relation to promotion of public convenience, general prosperity, public health, public morals or public safety. Moore v. Grillis, 205 Miss. 865, 39 So. 2d 505, 1949 Miss. LEXIS 472 (Miss. 1949).

The State exists to promote welfare of its citizens, that is, their peace, happiness, and prosperity. Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 1938 Miss. LEXIS 53 (Miss. 1938).

The State is sovereign over matters confided or reserved to it by the Tenth Amendment to the Federal Constitution. Tatum v. Wheeless, 180 Miss. 800, 178 So. 95, 1938 Miss. LEXIS 20 (Miss. 1938).

The legislature may adopt statutes for the general welfare and convenience of the public. State v. J. J. Newman Lumber Co., 102 Miss. 802, 59 So. 923, 1912 Miss. LEXIS 125 (Miss. 1912); State v. Armstead, 103 Miss. 790, 60 So. 778, 1912 Miss. LEXIS 231 (Miss. 1912).

Under the police power of the state is embraced authority to promote public convenience. State v. Louisville & N.R.R., 97 Miss. 35, 51 So. 918 (1910).

The legislature can constitutionally confer on municipalities the power, by ordinance, to punish as an offense against the municipality an act which constitutes a crime against the state. Town of Ocean Springs v. Green, 77 Miss. 472, 27 So. 743, 1899 Miss. LEXIS 98 (Miss. 1899).

2. Relation back of constitutional amendment.

Statutes enacted in anticipation of the adoption, or the taking effect, of constitutional amendments that prescribe the manner of effectuating such amendments, are valid in the absence of a constitutional provision prohibiting such legislation at the time of passage. Ratification of such an amendment relates back and validates the legislation. 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).

3. Initiative and referendum.

Mississippi Constitution Article III, §§ 5 and 6 do not compel a resurrection of the initiative and referendum petition procedure, which vested in the electorate the power to enact constitutional amendments and legislative measures and the power to reject acts passed by the legislature. State ex rel. Moore v. Molpus, 578 So. 2d 624, 1991 Miss. LEXIS 186 (Miss. 1991).

4. Cooperation between State and Federal governments.

The State Constitution declaring that the State has sole power over its affairs does not prevent cooperation between the State and Federal governments, where each acts within its appropriate sphere, and may at any time reassert its full control over the subject matter. Tatum v. Wheeless, 180 Miss. 800, 178 So. 95, 1938 Miss. LEXIS 20 (Miss. 1938).

5. Subjects of police power–In general.

The people may change the method of selecting any of its officers. State ex rel. Collins v. Jones, 106 Miss. 522, 64 So. 241, 1913 Miss. LEXIS 166 (Miss. 1913).

6. ––– Businesses and occupations, subjects of police power.

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).

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).

Under the police power the right of every person to pursue a lawful business is subject to uniform regulation. City of Vicksburg v. Mullane, 106 Miss. 199, 63 So. 412, 1913 Miss. LEXIS 123 (Miss. 1913).

Under the police power of the state the legislature has authority to enact laws regulating or suppressing pool and billiard halls. City of Corinth v. Crittenden, 94 Miss. 41, 47 So. 525, 1908 Miss. LEXIS 13 (Miss. 1908).

7. ––– Corporations, subjects of police power.

It [the State] may limit the rights of corporation to contract and regulate its methods of doing business. Yazoo & M. V. R. Co. v. Searles, 85 Miss. 520, 37 So. 939, 1904 Miss. LEXIS 162 (Miss. 1904).

The legislature may pass all necessary laws for the public convenience requiring public service corporations to maintain cattle guards where the line of road passes through inclosed plantations. Kansas C., M. & B. R. Co. v. Spencer, 72 Miss. 491, 17 So. 168, 1894 Miss. LEXIS 130 (Miss. 1894); Yazoo & M. V. R. Co. v. Harrington, 85 Miss. 366, 37 So. 1016, 1904 Miss. LEXIS 173 (Miss. 1904).

8. ––– Drainage legislation, subjects of police power.

Under the police power of the state the legislature can enact drainage laws. Cox v. Wallace, 100 Miss. 525, 56 So. 461, 1911 Miss. LEXIS 47 (Miss. 1911).

9. ––– Fishing, subjects of police power.

By virtue of the police power, the state has the right to regulate the time, manner and extent of taking of fish in running streams and lakes with outlets into other waters. Ex parte Fritz, 86 Miss. 210, 38 So. 722, 1905 Miss. LEXIS 75 (Miss. 1905).

10. ––– Labor relations and employment, subjects of police power.

The Unemployment Compensation Law does not infringe any of the sovereign powers retained by the State and recited in the State Constitution. Tatum v. Wheeless, 180 Miss. 800, 178 So. 95, 1938 Miss. LEXIS 20 (Miss. 1938).

11. ––– Railroads, subjects of police power.

Section 4058, Code of 1906 (see Code 1942, § 7781), making it the duty of railroad companies to maintain cattle guards where their tracks pass through inclosed land, is within the police power of the state, and, therefore, the Fourteenth Amendment of the Constitution of the United States is not involved. Yazoo & M. V. R. Co. v. Harrington, 85 Miss. 366, 37 So. 1016, 1904 Miss. LEXIS 173 (Miss. 1904).

Section 4053, Code of 1906, providing that when a railroad is constructed so as to cross a highway, and a bridge is necessary for passage along the highway across the railroad, it shall be the duty of the railroad company to erect and maintain the bridge, is within the police power of the state. Illinois C. R. Co. v. Copiah County, 81 Miss. 685, 33 So. 502, 1902 Miss. LEXIS 196 (Miss. 1902).

12. ––– Telegraphs and telephones, subjects of police power.

A telegraph company, engaged in domestic as well as interstate business, is subject to such reasonable police regulations as the state may impose, it being immaterial that the company was chartered by another state and secured its right to erect its lines along the post roads in this state under an act of Congress. Western Union Tel. Co. v. Mississippi R. Com., 74 Miss. 80, 21 So. 15, 1896 Miss. LEXIS 145 (Miss. 1896).

RESEARCH REFERENCES

ALR.

Constitutionality of statute regulating or imposing tax or license fee upon newspapers or magazines. 35 A.L.R. 7, 110 A.L.R. 327.

Public regulation or control of insurance agents or brokers. 10 A.L.R.2d 950.

Am. Jur.

16A Am. Jur. 2d, Constitutional Law §§ 260 et seq.

CJS.

C.J.S. Constitutional Law § 6.

C.J.S. States §§ 75-77.

Law Reviews.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Southwick and Welsh, Methods of Constitutional Revision: Which Way Mississippi? 56 Miss L. J. 17, April, 1986.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond, 56 Miss L. J. 73, April, 1986.

RESEARCH REFERENCES

CJS.

C.J.S. States §§ 9-11.

Law Reviews.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond, 56 Miss. L. J. 73, April, 1986.

RESEARCH REFERENCES

CJS.

C.J.S. Citizens §§ 7, 12, 28, 29.

Law Reviews.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond, 56 Miss L. J. 73, April, 1986.

JUDICIAL DECISIONS

1. Authority of governor.

2. Authority of military officer.

1. Authority of governor.

What Governor does in execution of laws, and acts of militia under his authority, must be as civil officers, and in strict subordination to the general law of the land. State v. McPhail, 182 Miss. 360, 180 So. 387, 1938 Miss. LEXIS 147 (Miss. 1938).

Requirement that Governor shall see that laws are executed means that laws shall be carried into effect, and not arbitrary enforcement by executive of what he considers law. State v. McPhail, 182 Miss. 360, 180 So. 387, 1938 Miss. LEXIS 147 (Miss. 1938).

Governor’s decision as to whether exigency justifies calling out militia, held subject to judicial review. State v. McPhail, 182 Miss. 360, 180 So. 387, 1938 Miss. LEXIS 147 (Miss. 1938).

2. Authority of military officer.

Member of militia who by rank has any executive authority may receive, and as lawful officer execute warrant, or have it done under his supervision, and make return upon it as sheriff or constable. State v. McPhail, 182 Miss. 360, 180 So. 387, 1938 Miss. LEXIS 147 (Miss. 1938).

RESEARCH REFERENCES

Am. Jur.

53A Am. Jur. 2d, Military, and Civil Defense §§ 241-244, 246.

CJS.

C.J.S. Armed Services §§ 11-20, 48, 49, 60, 341, 342.

Law Reviews.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond, 56 Miss L. J. 73, April, 1986.

RESEARCH REFERENCES

ALR.

Validity of legislation directed against political, social, or industrial propaganda deemed to be of a dangerous tendency. 73 A.L.R. 1494.

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.

CJS.

C.J.S. Treason §§ 3, 5, 14, 15.

Lawyers’ Edition.

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.

Law Reviews.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond, 56 Miss. L. J. 73, April, 1986.

JUDICIAL DECISIONS

1. Fees and permits.

2. Freedom of speech.

3. Immunity of government agents.

1. Fees and permits.

County ordinance requiring permits for parades, demonstrations, assemblies, and other private uses of public property and requiring permit fee of up to $1,000 per day, and empowering county administrator to adjust fee amount to meet expense incidental to administering ordinance and maintaining public order in connection with licensed activity, as implemented and construed by county, violated free speech guarantee as there were no narrowly drawn, reasonable, and definite standards guiding hand of county administrator to prevent him from encouraging some views and discouraging others through arbitrary imposition of fees, and fee would depend on administrator’s measure of amount of hostility likely to be created by speech, based on speech’s content. Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S. Ct. 2395, 120 L. Ed. 2d 101, 1992 U.S. LEXIS 3692 (U.S. 1992).

2. Freedom of speech.

City ordinance making it a misdemeanor to place on public or private property symbol, object, appellation, characterization, or graffiti which one knows or has reasonable grounds to know arouses anger, alarm, or resentment in others on basis of race, color, creed, religion or gender was, even as narrowly construed by state Supreme Court, facially violative of First Amendment when applied to prosecute person who allegedly burned cross inside fenced yard of family; ordinance did not fall within any exception to prohibition against content discrimination, and although ordinance could be said to promote compelling state interest its content discrimination was not reasonably necessary to achieve such interest. R. A. V. v. City of St. Paul, 505 U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d 305, 1992 U.S. LEXIS 3863 (U.S. 1992).

3. Immunity of government agents.

Federal Bureau of Investigation agents were absolutely immune from claims that they violated §§ 11 and 13 of Article 3 of of Mississippi Constitution where they acted within outer perimeter of their duties, and there were no implied damage remedies under such constitutional provisions. Kenyatta v. Moore, 623 F. Supp. 220, 1985 U.S. Dist. LEXIS 15522 (S.D. Miss. 1985).

RESEARCH REFERENCES

ALR.

Validity of statute or ordinance prohibiting or regulating holding of meeting in street. 10 A.L.R. 1483, 25 A.L.R. 114.

Constitutionality of statute regulating or imposing tax or license fee upon newspapers or magazines. 35 A.L.R. 7, 110 A.L.R. 327.

Validity of statute or ordinance against picketing. 35 A.L.R. 1200; 108 A.L.R. 1119; 122 A.L.R. 1043; 125 A.L.R. 963; 130 A.L.R. 1303.

Public speaking in street. 62 A.L.R. 404.

Use of streets or parks for religious purposes. 133 A.L.R. 1402.

When Does Use of Pepper Spray, Mace, or Other Similar Chemical Irritants Constitute Violation of Constitutional Rights. 65 A.L.R.6th 93.

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, 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.

Am. Jur.

16A Am. Jur. 2d, Constitutional Law §§ 390-392.

CJS.

C.J.S. Constitutional Law §§ 462, 466, 612 to 629.

Lawyers’ Edition.

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.

Law Reviews.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond, 56 Miss. L. J. 73, April, 1986.

Cross References —

Governor’s power to call militia, see Miss. Const. Art. 9, § 217.

JUDICIAL DECISIONS

1. Carrying concealed weapons.

2. Possession of firearm by convicted felon.

1. Carrying concealed weapons.

Miss. Const. art. 3, § 12, Miss. Code Ann. §97-37-1(2), and Miss. Code Ann. §45-9-55 establish the express legislative action and the State law prohibitions, and an employee may be discharged at the employer’s will for good reason, bad reason, or no reason at all, excepting reasons independently declared legally impermissible; an employee is wrongfully discharged if terminated for an act specifically allowed by State law, the prohibition of which is specifically disallowed by statutory law. Swindol v. Aurora Flight Scis. Corp., 194 So.3d 847, 2016 Miss. LEXIS 131 (Miss. 2016).

A person, not a tramp, traveling 62 miles from his place of residence and beyond the circle of his friends in the pursuit of legitimate business, and having a substantial sum of money on his person, is not guilty of unlawfully carrying a concealed weapon. Patterson v. State, 251 Miss. 565, 170 So. 2d 635, 1965 Miss. LEXIS 883 (Miss. 1965).

This section does not authorize carrying concealed weapons on the person in one’s home. Wilson v. State, 81 Miss. 404, 33 So. 171, 1902 Miss. LEXIS 159 (Miss. 1902).

2. Possession of firearm by convicted felon.

Section 97-37-5 does not violate the rights of citizens to keep and bear arms, as provided in Article 3, Section 12 of the Constitution. James v. State, 731 So. 2d 1135, 1999 Miss. LEXIS 33 (Miss. 1999).

RESEARCH REFERENCES

ALR.

Validity of state gun control legislation under state constitutional provisions securing the right to bear arms. 86 A.L.R.4th 931.

Validity of state statute proscribing possession or carrying of knife. 47 A.L.R.4th 651.

Validity of state statutes restricting right of aliens to bear arms. 28 A.L.R.4th 1096.

Validity of State Gun Control Legislation Under State Constitutional Provisions Securing Right to Bear Arms – Convicted Felons. 85 A.L.R.6th 641.

Am. Jur.

16A Am. Jur. 2d, Constitutional Law § 329.

CJS.

C.J.S. Weapons §§ 3-8.

Law Reviews.

Collins, Reliance on State Constitutions: Some Random Thoughts. 54 Miss L. J. 371, Sept.-Dec., 1984.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond. 56 Miss L. J. 73, April, 1986.

Editor’s Note —

House Concurrent Resolution 30 (Chapter 2024), 2012 Regular Session, amended Article 3 of the Mississippi Constitution of 1890 by adding a new Section 12A. HCR 30 was approved by a majority of the electors of Mississippi at the November 4, 2014, election.

Article 15, § 273(10) of the Mississippi Constitution provides that initiatives approved by the electors take effect thirty (30) days from the date of the official declaration of the vote by the Secretary of State. The Secretary of State certified the November 4, 2014, election on December 2, 2014.

The last paragraph of HCR 30 provides as follows:

“BE IT FURTHER RESOLVED, That the Attorney General of the State of Mississippi shall submit this resolution, immediately upon adoption by the Legislature of the State of Mississippi, to the Attorney General of the United States or to the United States District Court for the District of Columbia in accordance with the provisions of the Voting Rights Act of 1965, as amended and extended.”

However, after the bill was approved, the United States Supreme Court, in the case of Shelby County v. Holder (June 25, 2013), struck down the coverage formula that determined what jurisdictions are subject to Section 5 of the Voting Rights Act, so the coverage formula can no longer be used as a basis for subjecting jurisdictions to preclearance under Section 5.

Because of the Shelby County decision, the United States Attorney General is not making any determinations under Section 5 on voting or election changes made by states. The Supreme Court did not strike down Section 5, so it is still in effect. For that reason, the Mississippi Attorney General’s Office submitted House Concurrent Resolution 30 (2012) to the United States Attorney General in order to technically meet the requirements of Section 5 and fulfill the Legislative direction in the final paragraph of the Resolution.

By letter dated March 6, 2014, the United States Attorney General responded that he is not making determinations on the merits of any bill that is submitted under Section 5. The submission of HCR 30 (2012) and the response from the United States Attorney General technically met the requirements of Section 5 and fulfilled the Legislative direction in the final paragraph of the Resolution.

JUDICIAL DECISIONS

1. In general.

2. Access to judicial proceedings.

3. Attorneys.

4. Constitutionality.

5. Criticism of judicial acts.

6. Judicial comments.

7. Defamation–In general.

8. ––– Parody, defamation.

9. Disloyalty to the flag or government.

10. Education and students.

11. Employment and labor relations.

12. Immunity of government officers.

13. Licenses and permits.

14. Obscene literature.

15. Sexual devices.

1. In general.

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).

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).

City ordinance making it a misdemeanor to place on public or private property symbol, object, appellation, characterization, or graffiti which one knows or has reasonable grounds to know arouses anger, alarm, or resentment in others on basis of race, color, creed, religion or gender was, even as narrowly construed by state Supreme Court, facially violative of First Amendment when applied to prosecute person who allegedly burned cross inside fenced yard of family; ordinance did not fall within any exception to prohibition against content discrimination, and although ordinance could be said to promote compelling state interest its content discrimination was not reasonably necessary to achieve such interest. R. A. V. v. City of St. Paul, 505 U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d 305, 1992 U.S. LEXIS 3863 (U.S. 1992).

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).

Statute (Code 1942 § 2402), which, as construed by the state courts, makes it a criminal offense to communicate to others views and opinions respecting governmental policies, and prophecies concerning the states 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 to the United States Constitution.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); Cummings v. State, 194 Miss. 59, 11 So. 2d 683, 1943 Miss. LEXIS 32 (Miss.), rev'd, 319 U.S. 583, 63 S. Ct. 1200, 87 L. Ed. 1600, 1943 U.S. LEXIS 489 (U.S. 1943); Benoit v. State, 194 Miss. 74, 11 So. 2d 689, 1943 Miss. LEXIS 33 (Miss.), rev'd, 319 U.S. 583, 63 S. Ct. 1200, 87 L. Ed. 1600, 1943 U.S. LEXIS 489 (U.S. 1943).

Freedom of speech includes the freedom to speak unwisdom or even heresy. Tisdale v. State, 4 So. 2d 356 (Miss. 1941).

2. Access to judicial proceedings.

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).

Civil and criminal sanctions imposed by Georgia upon publication of name of rape victim obtained from official court records open to public inspection violated constitutional protection of freedom of press. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S. Ct. 1029, 43 L. Ed. 2d 328, 1975 U.S. LEXIS 139 (U.S. 1975).

Ordinarily a court has no right generally to deny to the press opportunity to learn, and the right to publish, the legitimate facts of trials during the public progress thereof. Brannon v. State, 202 Miss. 571, 29 So. 2d 916, 1947 Miss. LEXIS 319 (Miss. 1947).

3. Attorneys.

The appellate court would deny a writ of prohibition seeking to enjoin an attorney’s representation of a particular client, on the asserted basis that the representation would violate the Mississippi State Bar’s Canons of Ethics, since prior restraints on speech are not tolerated absent the clearest imminent danger, and the lawyer’s right and responsibility of zealous advocacy on behalf of his client is among the most precious forms of speech. Thornton v. Breland, 441 So. 2d 1348, 1983 Miss. LEXIS 3063 (Miss. 1983).

An attorney in arguing a case has no right under this section to read law books to the jury. Oakes v. State, 98 Miss. 80, 54 So. 79, 1910 Miss. LEXIS 103 (Miss. 1910).

4. Constitutionality.

Where, pursuant to its authority under Miss. Const. Art. VI, § 177A, the Mississippi Commission on Judicial Performance recommended that a judge be sanctioned for extra-judicial public statements of his views on the rights of gays and lesbians, the Supreme Court of Mississippi determined that gay rights was a political/public issue, and the judge’s statements were religious speech protected by U.S. Const. Amend. I and Miss. Const. Art. III, § 13. Miss. Comm'n on Judicial Performance v. Wilkerson, 876 So. 2d 1006, 2004 Miss. LEXIS 796 (Miss. 2004).

5. Criticism of judicial acts.

The right of free speech is not exceeded by publishing a criticism of completed judicial action. Evers v. State, 241 Miss. 560, 131 So. 2d 653, 1961 Miss. LEXIS 374 (Miss. 1961).

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, and 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).

6. Judicial comments.

Order that the judge be suspended from office for a period of one year was appropriate because his commentary on Caucasian officials 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).

7. Defamation–In general.

Where author, after tape recording interviews with psychoanalyst, wrote magazine article which was later published as book and which contained lengthy passages in quotation marks attributed to psychoanalyst, some of which had no identical statement appearing in author’s taped interviews, author was not entitled to summary judgment in suit by psychoanalyst for libel, because deliberate alteration of words uttered by public figure does not equate with knowledge of falsity for purpose of New York Times standard, unless alteration results in material change in meaning conveyed by statement; and (2), with respect to some of the quotations, evidence presented question for jury whether author acted with knowledge of falsity or with reckless disregard as to truth or falsity. Masson v. New Yorker Magazine, 501 U.S. 496, 111 S. Ct. 2419, 115 L. Ed. 2d 447, 1991 U.S. LEXIS 3630 (U.S. 1991).

Private figure seeking damages in defamation action against newspaper bears burden of proving that defamatory statements of public concern are false. Philadelphia Newspapers v. Hepps, 475 U.S. 767, 106 S. Ct. 1558, 89 L. Ed. 2d 783, 1986 U.S. LEXIS 97 (U.S. 1986).

Truth is a defense to defamation action. Fulton v. Mississippi Publishers Corp., 498 So. 2d 1215, 1986 Miss. LEXIS 2649 (Miss. 1986).

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).

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).

Proof of the substantial truth of a publication, made with good motives and for justifiable ends, is a complete defense to an action for libel. Smith v. Byrd, 225 Miss. 331, 83 So. 2d 172, 1955 Miss. LEXIS 588 (Miss. 1955).

8. ––– Parody, defamation.

First Amendment prohibits public figure from recovering damages for intentional infliction of emotional distress as result of parody, absent showing of false statement of fact which was made with actual malice; therefore, minister who was public figure and whose picture was used in advertisement parody labeled “ad parody- not to be taken seriously” could not recover damages for intentional infliction of emotional distress. Hustler Magazine v. Falwell, 485 U.S. 46, 108 S. Ct. 876, 99 L. Ed. 2d 41, 1988 U.S. LEXIS 941 (U.S. 1988).

9. Disloyalty to the flag or government.

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).

10. Education and students.

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).

11. Employment and labor relations.

Because plaintiff fireman’s letter to a newspaper addressed a matter of public concern, how candidates would treat city employees and their raises, and defendant city submitted no evidence the letter interfered with work relationships or the fireman’s job, the city had to show cause why summary judgment should not enter on the fireman’s Miss. Const. Art. 3, § 13 demotion/retaliation claim. Montgomery v. Mississippi, 498 F. Supp. 2d 892, 2007 U.S. Dist. LEXIS 49604 (S.D. Miss. 2007).

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).

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 tenet 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).

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).

12. Immunity of government officers.

Federal Bureau of Investigation agents were absolutely immune from claims that they violated §§ 11 and 13 of Article 3 of of Mississippi Constitution where they acted within outer perimeter of their duties, and there were no implied damage remedies under such constitutional provisions. Kenyatta v. Moore, 623 F. Supp. 220, 1985 U.S. Dist. LEXIS 15522 (S.D. Miss. 1985).

13. Licenses and permits.

County ordinance requiring permits for parades, demonstrations, assemblies, and other private uses of public property and requiring permit fee of up to $1,000 per day, and empowering county administrator to adjust fee amount to meet expense incidental to administering ordinance and maintaining public order in connection with licensed activity, as implemented and construed by county, violated free speech guarantee as there were no narrowly drawn, reasonable, and definite standards guiding hand of county administrator to prevent him from encouraging some views and discouraging others through arbitrary imposition of fees, and fee would depend on administrator’s measure of amount of hostility likely to be created by speech, based on speech’s content. Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S. Ct. 2395, 120 L. Ed. 2d 101, 1992 U.S. LEXIS 3692 (U.S. 1992).

14. Obscene literature.

A statute prohibiting the sale of obscene literature does not violate this section. Williams v. State, 130 Miss. 827, 94 So. 882, 1922 Miss. LEXIS 245 (Miss. 1922).

15. Sexual devices.

Sale of sexual devices, or the right of access to such devices by users, is not encompassed by the constitutionally protected right of privacy; advertising of the devices, or their sale is not constitutionally protected speech. PHE, Inc. v. State, 877 So. 2d 1244, 2004 Miss. LEXIS 269 (Miss. 2004).

RESEARCH REFERENCES

ALR.

Constitutionality of statute regulating or imposing tax or license fee upon newspapers or magazines. 35 A.L.R. 7, 110 A.L.R. 327.

Validity of statute or ordinance against picketing. 35 A.L.R. 1200; 108 A.L.R. 1119; 122 A.L.R. 1043; 125 A.L.R. 963; 130 A.L.R. 1303.

Constitutionality of statutes forbidding or regulating dissemination of betting odds or other gambling information. 47 A.L.R. 1135.

Public speaking in street. 62 A.L.R. 404.

Constitutionality of corrupt practices acts. 69 A.L.R. 377.

Validity or legislation directed against political, social, or industrial propaganda deemed to be of a dangerous tendency. 73 A.L.R. 1494.

Constitutionality and construction of statutes relating to charges and attacks on candidates for nomination or election to public office. 96 A.L.R. 582.

Validity and construction of statute or ordinance relating to distribution of advertising matter. 114 A.L.R. 1446.

Constitutional guaranties of freedom of speech and of the press as applied to statutes and ordinances providing for licensing or otherwise regulating distribution of printed matter or solicitation or subscriptions therefor. 127 A.L.R. 962.

Duty of secrecy on part of members of, or witnesses or other persons present before, grand jury. 127 A.L.R. 272.

Validity of statutory or municipal regulation of soliciting of alms or contributions for charitable, religious, or individual purposes. 128 A.L.R. 1361, 130 A.L.R. 1504.

Right of labor union to publicize that commodity is nonunion-made, or that competing commodity is union-made. 131 A.L.R. 1068.

Use of streets or parks for religious purposes. 133 A.L.R. 1402.

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.

Peaceful picketing of private residence. 42 A.L.R.3d 1353.

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

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

Defamation: nature and extent of privilege accorded public statements, relating to subject of legislative business or concern, made by member of state or local legislature or council outside of formal proceedings. 41 A.L.R.4th 1116.

Validity of criminal defamation statutes. 68 A.L.R.4th 1014.

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

Exclusion of public and media from voir dire examination of prospective jurors in state criminal case. 16 A.L.R.5th 152.

Libel and slander: Charging one with breach or nonperformance of contract. 45 A.L.R.5th 739.

Propriety of prophylactic availability programs. 52 A.L.R.5th 477.

Validity, under state constitutions, of private shopping center’s prohibition or regulation of political, social, or religious expression or activity. 52 A.L.R.5th 195.

Defamation: Publication of letter to editor in newspaper as actionable. 54 A.L.R.5th 443.

What constitutes private club or association not otherwise open to public that is exempt from state civil rights statute. 83 A.L.R.5th 467.

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.

Construction and Application of Federal and State Constitutional and Statutory Speech or Debate Provisions. 24 A.L.R.6th 255.

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

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.

When Does Use of Pepper Spray, Mace, or Other Similar Chemical Irritants Constitute Violation of Constitutional Rights. 65 A.L.R.6th 93.

Constitutionality of Restricting Public Speech in Street, Sidewalk, Park, or Other Public Forum – Characteristics of Forum. 70 A.L.R.6th 513.

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.

Expectation of Privacy in and Discovery of Social Networking Web Site Postings and Communications. 88 A.L.R.6th 319.

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.

What oral statement of student is sufficiently disruptive so as to fall beyond protection of First Amendment. 76 A.L.R. Fed. 599.

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.

First Amendment protection for publicly employed firefighters subjected to discharge, transfer, or discipline because of speech. 106 A.L.R. Fed. 396.

Validity and construction of public school regulation of student distribution of religious documents at school. 136 A.L.R. Fed. 551.

Protection of Commercial Speech Under First Amendment – Supreme Court Cases. 164 A.L.R. Fed. 1.

Am. Jur.

16A Am. Jur. 2d, Constitutional Law §§ 379-389.

50 Am. Jur. 2d, Libel and Slander §§ 489 et seq.

22 Am. Jur. Proof of Facts 3d 203, Termination or Demotion of a Public Employee in Retaliation for Speaking Out as a Violation of Free Speech.

CJS.

C.J.S. Constitutional Law §§ 539, 542.

C.J.S. Libel and Slander; Injurious Falsehood §§ 108, 109.

Lawyers’ Edition.

Constitutionality of regulation of obscene motion pictures. 22 L. Ed. 2d 949.

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.

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.

Law Reviews.

Collins, Reliance on State Constitutions: Some Random Thoughts. 54 Miss L. J. 371, Sept.-Dec., 1984.

Comment, Ferguson v. Watkins: The Vortex Within Mississippi Defamation Law. 55 Miss L. J. 619, September 1985.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond. 56 Miss L. J. 73, April, 1986.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

JUDICIAL DECISIONS

1. In general.

2. Notice and hearing.

3. Taxation–In general.

4. – – Tax sales, taxation.

5. – – License and use taxes, taxation.

6. – – Sales and use taxes, taxation.

7. Employment and labor relations.

8. Judicial proceedings–In general.

9. – – Gifts, judicial proceedings.

10. – – Discovery, judicial proceedings.

11. – – Divorce, alimony, maintenance, and support, judicial proceedings.

12. – – Child custody, judicial proceedings.

13. – – Contempt, judicial proceedings.

14. – – Real property, judicial proceedings.

15. – – Adoption, judicial proceedings.

16. – – Education, judicial proceedings.

17. – – Juvenile detention, judicial proceedings.

18. Crimes and criminal procedure – In general.

19. – – Admissibility of evidence, crimes and criminal procedure.

20. – – Affidavits or indictments, crimes and criminal procedure.

21. – – Assistance of counsel, crimes and criminal procedure.

22. – – Change of venue, crimes and criminal procedure.

23. – – Competency of defendant, crimes and criminal procedure.

24. – – Confessions, crimes and criminal procedure.

25. – – Contempt, crimes and criminal procedure.

26. – – Cross examination, crimes and criminal procedure.

27. – – Disclosure of evidence, crimes and criminal procedure.

28. – – Disqualification of judge, crimes and criminal procedure.

29. – – Jury trial, crimes and criminal procedure.

30. – – Examination and qualification of jurors, crimes and criminal procedure.

31. – – Fair trial, crimes and criminal procedure.

32. – – Freedom of speech or press, crimes and criminal procedure.

33. – – Guilty pleas, crimes and criminal procedure.

34. – – Identification of defendant, crimes and criminal procedure.

35. – – Insanity defense, crimes and criminal procedure.

36. – – Instructions, crimes and criminal procedure.

37. – – Loss or destruction of evidence, crimes and criminal procedure.

38. – – Post-conviction relief, crimes and criminal procedure.

39. – – Production of evidence and witnesses, crimes and criminal procedure.

40. – – Sentence and punishment, crimes and criminal procedure.

41. – – Time for review, crimes and criminal procedure.

42. – – Vague or indefinite statutes, crimes and criminal procedure.

43. Prisons and prisoners–In general.

44. – – Administrative segregation, prisons and prisoners.

45. – – Earned time, prisons and prisoners.

46. – – Parole, prisons and prisoners.

47. – – Probation, prisons and prisoners.

48. – – Transfer, prisons and prisoners.

49. – – Visitation rights, prisons and prisoners.

50. Penalties and forfeitures–In general.

51. – – Attorney fees, penalties and forfeitures.

52. – – Prisons and prisoners, penalties and forfeitures.

53. – – Liquor offenses, penalties and forfeitures.

54. Racial discrimination.

55. Public improvements and highways.

56. Use of property–In general.

57. – – Zoning laws, use of property.

58. Eminent domain.

59. Negligence and contributory negligence.

60. Animal legislation.

61. Political parties and elections.

62. Regulation of business and professions – In general.

63. – – Accountants and tax preparers, regulation of business and professions.

64. – – Attorneys, regulation of business and professions.

65. – – Banks and banking, regulation of business and professions.

66. – – Education, regulation of business and professions.

67. – – Insurance, regulation of business and professions.

68. – – Physicians, regulation of business and professions.

69. – – Utilities, regulation of business and professions.

70. – – Price control, regulation of business and professions.

71. – – Taxis, regulation of business and professions.

72. – – Railroads, regulation of business and professions.

73. – – Sunday closing laws, regulation of business and professions.

74. Unemployment compensation.

75. Workers compensation.

76. Retirement benefits.

77. Sovereign immunity.

78. Damages.

79. Education, schools and students.

80. Landlord-tenant disputes.

81. Municipal ordinances.

82. Miscellaneous.

83. Right to confrontation.

1. In general.

No due-process violation occurred when the Mississippi Division of Medicaid (DOM) was allowed to recoup the respiratory-therapist salaries that a long-term skilled nursing facility was erroneously paid because the facility was afforded all the due-process protections provided by the DOM’s administrative process and availed itself of the appeals afforded by both the chancery court and the appellate court. CLC of Biloxi, LLC v. Miss. Div. of Medicaid, 238 So.3d 16, 2018 Miss. App. LEXIS 73 (Miss. Ct. App. 2018).

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).

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 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).

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).

State Constitution’s guarantee of due process of law includes fair and impartial trial. Brown by & Through Webb v. Blackwood, 697 So. 2d 763, 1997 Miss. LEXIS 168 (Miss. 1997).

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).

Due process when applied to substantive rights is now 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 in arbitrary exercise of governmental power. Craig v. North Mississippi Community Hospital, 206 Miss. 11, 39 So. 2d 523, 1949 Miss. LEXIS 239 (Miss. 1949).

Where the end is legitimate the means is for the legislature to choose, the only limitation thereon under due process being that the means chosen must not be so far beyond the necessity of the case as to be an arbitrary exercise of governmental power. Craig v. North Mississippi Community Hospital, 206 Miss. 11, 39 So. 2d 523, 1949 Miss. LEXIS 239 (Miss. 1949).

“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).

By what procedure private property may be taken for public use rests with the legislature subject to the requirements of due process of law and that section of the state constitution which provides that private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof. McAllister v. Graham, 6 So. 2d 300 (Miss. 1942).

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).

The phrase “due process of law” has been expanded beyond its literal meaning of due procedure and is now interpreted to mean that the government is without 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).

Due-process clause does not prevent State 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).

Each case involving due process must be decided on the social and economic conditions that exist when the statute was enacted or at time case is decided. Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 1938 Miss. LEXIS 53 (Miss. 1938).

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).

The word “liberty” defined. Wilby v. State, 93 Miss. 767, 47 So. 465, 1908 Miss. LEXIS 144 (Miss. 1908).

The legislature, under this section, is without power to deprive a plaintiff of a sum of money admitted to be due him. East v. King, 77 Miss. 738, 27 So. 608, 1900 Miss. LEXIS 11 (Miss. 1900).

2. Notice and hearing.

Chancery court properly granted a preliminary injunction and reversed a decision by the Mississippi State Board of Contractors revoking a contractor’s certificate of responsibility (COR) and in reinstating the COR because the Board violated the contractor’s constitutional right to due process of law where where the Board failed to notify the contractor that it would consider prior complaints against the contractor, the Board had no authority to condition the contractor’s ability to engage in the contracting business on its payment of a disputed debt, and the chancery court did not abuse its discretion by finding that the elements for a preliminary injunction were met. Miss. State Bd. of Contrs. v. Hobbs Constr., LLC, 291 So.3d 762, 2020 Miss. LEXIS 57 (Miss. 2020).

Fines were void because the chancery court violated individuals’ due process rights by failing to provide individuals with notice of the alleged Mississippi Public Records Act of 1983 violations and charges to be adjudicated against them; none of the individuals were named in either lawsuit in their individual capacity or given notice that they could potentially be fined. Miss. Dep't of Audit v. Gulf Publ. Co., 235 So.3d 1452, 2016 Miss. App. LEXIS 170 (Miss. Ct. App. 2016), rev'd, in part, vacated, 236 So.3d 32, 2017 Miss. LEXIS 437 (Miss. 2017).

Procedure the Mississippi Oil and Gas Board utilized in amending a rule did not violate contestants’ constitutional rights because the contestants were given full and fair notice of the petition to amend the rule and were allowed to lodge their objections to said rule; the contestants were represented vigorously by competent counsel, allowed to call witnesses, and put exhibits into evidence during a public hearing on the matter. Adams v. Miss. State Oil & Gas Bd., 139 So.3d 58, 2014 Miss. LEXIS 121 (Miss. 2014).

Insurance company’s due process rights were violated by the county court’s entry of sanctions against it in an action to which it was not a party and had not received formal notice. State Farm Mut. Auto. Ins. Co. v. Jones, 37 So.3d 87, 2009 Miss. App. LEXIS 829 (Miss. Ct. App. 2009), cert. denied, 36 So.3d 455, 2010 Miss. LEXIS 292 (Miss. 2010).

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).

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).

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 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).

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).

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).

State employee who was under investigation for improper sexual conduct continued to receive full pay and benefits for the duration of the employee’s leave, and the state agency was not required to afford the employee the opportunity for a hearing within 20 days, thus, the employee was not denied due process. Further, the employee had the opportunity to make arguments, put on witnesses, and cross-examine witnesses at the Mississippi Employee Appeals Board hearing. Davis v. Miss. State Dep't of Health, 856 So. 2d 485, 2003 Miss. App. LEXIS 286 (Miss. Ct. App.), cert. denied, 860 So. 2d 315, 2003 Miss. LEXIS 674 (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).

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 due process clause of the Mississippi Constitution required that a plaintiff’s appeal, which had been dismissed for failure to file a timely notice of appeal, be reinstated, since (1) 3 jury verdict forms which did not contain the word “judgment” did not constitute final judgments and therefore were not appealable, (2) the plaintiff was never notified of the existence of those forms, they were not in the court file, were not entered on the docket, and were presented to the judge ex parte, and (3) the plaintiff filed her notice of appeal within 30 days of the disposition of the post-trial motions and timely perfected her appeal to the Supreme Court. Roberts v. Grafe Auto Co., 653 So. 2d 250, 1994 Miss. LEXIS 360 (Miss. 1994).

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 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).

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).

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).

Notice of an employer’s appeal of a referee’s decision was sufficient to satisfy the claimant’s minimum due process rights, where the Board of Review mailed a notice to the claimant but did not notify the claimant’s attorney of the appeal. Notifying the claimant only and not the attorney satisfies minimum due process requirements so long as such notice is “reasonably calculated” to apprise the claimant of necessary information. Booth v. Mississippi Employment Sec. Com., 588 So. 2d 422, 1991 Miss. LEXIS 653 (Miss. 1991).

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).

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).

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).

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).

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).

In bond judgment and declaratory judgment actions by objectors against a county utility district that proposed to issue revenue bonds to finance a water and sewage treatment center, notwithstanding that the objectors may not have been afforded reasonable advance notice of the meeting in which the board of commissioners formerly adopted resolutions concerning the project, the revenue bond was valid and did not violate due process. In re Validation of $7,800,000 Combined Utility System Revenue Bond, etc., 465 So. 2d 1003, 1985 Miss. LEXIS 1939 (Miss. 1985).

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).

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 effected by their decisions in such matters. Tally v. Board of Supervisors, 307 So. 2d 553, 1975 Miss. LEXIS 1826 (Miss. 1975).

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).

Where the purchaser of land at a tax sale was not joined as a party to an eminent domain action, and the Highway Commission, after judgment, entered upon the property, took possession of the condemned right of way, and began construction work thereon, purchaser had been denied due process and his property had been taken without compensation. Mississippi State Highway Com. v. Casey, 253 Miss. 685, 178 So. 2d 859, 1965 Miss. LEXIS 1033 (Miss. 1965).

Action of chancery court in proceeding, at the 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).

Foreign corporations, doing business in Alabama, Tennessee, and Mississippi, were persons within the meaning of attachment statutes and they themselves could sue in the state and were liable to be sued or proceeded against, by attachment or otherwise, as individual nonresident debtors may be sued or proceeded against. Snipes v. Commercial & Industrial Bank, 225 Miss. 345, 83 So. 2d 179, 1955 Miss. LEXIS 589 (Miss. 1955).

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).

Since bonds for consolidated school districts may be issued on petition of majority of qualified electors under Code 1942, § 6370 and no provision is made for notice to those affected so that they may have an opportunity to be heard prior to issuance, the validating act, Code 1942, § 4314, must be construed so as to give to those who have had no opportunity to protest action of board the right to hearing, when they respond to notice to taxpayers in validation proceedings, otherwise state constitutional provision against deprivation of property except by due process of law is violated. In re Savannah Special Consol. School Dist., 208 Miss. 460, 44 So. 2d 545, 1950 Miss. LEXIS 265 (Miss. 1950).

No man can be condemned or divested of his right until he has had 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).

Court must not only have jurisdiction of subject matter, but also of persons of parties to give validity to its final judgments, orders and decrees and it is not in power of legislature to dispense with this notice, actual or constructive. Rice v. McMullen, 207 Miss. 706, 43 So. 2d 195, 1949 Miss. LEXIS 382 (Miss. 1949).

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).

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).

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).

An order by board of supervisors adjudicating sufficiency of the petition and ordering an election, after a secret session from which interested parties and their attorneys were excluded, and a final judgment of the board excluding wine and beer from the county, pursuant to such election, are without authority of law and a denial of due process. Miles v. Board of Sup'rs, 33 So. 2d 810 (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).

Unconstitutionality of provision permitting sheriff to seize and sell automobile for nonpayment of highway privilege tax without notice to owner held separable from, and did not affect validity of, remainder of the taxing statute. Holloway v. Jordan, 170 Miss. 99, 154 So. 340, 1934 Miss. LEXIS 116 (Miss. 1934).

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).

A case in which it is held §§ 6 and 8, c 195 of the drainage act of 1912 provides sufficient notice for taking of property. Jones v. Belzoni Drainage Dist., 102 Miss. 796, 59 So. 921, 1912 Miss. LEXIS 124 (Miss. 1912).

Notice to complainant of acts of drainage board and opportunity to protect his rights meets requirement of the Constitution. Wilkinson v. Lee, 96 Miss. 688, 51 So. 718 (Miss. 1910).

Chapter 105 of the Laws of 1900 cannot be assailed as unconstitutional because not providing for notice by one who has appeared and contested a case through all the courts. Illinois C. R. Co. v. Denham, 82 Miss. 77, 33 So. 839, 1903 Miss. LEXIS 109 (Miss. 1903).

Personal notice on resident-known defendants is essential to a valid judgment against them. Brown v. Board of Levee Comm'rs, 50 Miss. 468, 1874 Miss. LEXIS 80 (Miss. 1874).

A judgment without notice is void. Jack v. Thompson, 41 Miss. 49, 1866 Miss. LEXIS 4 (Miss. 1866).

A law depriving a citizen of his property without notice or trial, and without opportunity to protect his rights, is void. Donovan v. Mayor & Council of Vicksburg, 29 Miss. 247, 1855 Miss. LEXIS 49 (Miss. 1855).

3. Taxation–In general.

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).

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).

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).

1934, c 246 held not to deny due process of law to abutting property owners in paying assessment proceedings thereunder. City of Clarksdale v. Fitzgerald, 181 Miss. 135, 179 So. 269, 1938 Miss. LEXIS 55 (Miss. 1938).

Statute, which, for the avowed purpose of relieving unemployment and aiding agriculture and industry, authorized municipalities to raise funds by taxation for the acquisition of lands and the construction of factories which were to be leased to individuals and private corporations on terms which would insure their continued operation, did not violate the due process clause. Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 1938 Miss. LEXIS 53 (Miss. 1938).

Statute authorizing issuance of bonds, payable from taxes, enabling town, desiring to increase employment, to build and lease garment factory, violated State Constitution by lending town’s credit in aid of private corporation. Carothers v. Booneville, 169 Miss. 511, 153 So. 670, 1934 Miss. LEXIS 69 (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).

Statute making every tax lawfully levied a debt against taxpayers and authorizing recovery thereof by action held not invalid as denying due process of law. George County Bridge Co. v. Catlett, 161 Miss. 120, 135 So. 217, 1931 Miss. LEXIS 255 (Miss. 1931).

The statute providing for assessment of lands by government surveys is lawful. Rawlings v. Anderson, 149 Miss. 632, 115 So. 714, 1928 Miss. LEXIS 60 (Miss. 1928).

As to power to issue bonds of drainage district in anticipation of taxes see Cox v. Wallace, 100 Miss. 525, 56 So. 461, 1911 Miss. LEXIS 47 (Miss. 1911).

An extension of city limits so as to include property and render it liable to city taxes, though the owner is not benefited thereby, is not to deprive of property without due process of law. Forbes v. Mayor, etc., of Meridian, 86 Miss. 243, 38 So. 676, 1905 Miss. LEXIS 71 (Miss. 1905); Martin v. Dix, 52 Miss. 53, 1876 Miss. LEXIS 163 (Miss. 1876).

A statute providing for the assessment of railroads for back taxes by the state railroad commission, without appeal, does not deprive of property without due process of law, although other taxpayers may, under general laws, appeal from the tribunal fixing their taxes. Yazoo & M. V. R. Co. v. Adams, 77 Miss. 764, 25 So. 355, 1900 Miss. LEXIS 1 (Miss. 1900).

4. – – Tax sales, taxation.

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).

Unfair cigarette sales law requires proof of intent to both injure competitors and destroy or substantially lessen competition, and mere intent to injure competitors is insufficient; Mississippi unfair cigarette sales law does not violate due process since court cannot conclude that rebate provision bears no rational relation to state’s legitimate interest in protecting healthy market competition and in view of fact that legislature is under no duty to pick least restrictive means for furthering its legitimate interests; protection of public from unfair business practices which tend to injure competitors and destroy or substantially lessen competition is necessarily matter affected with public interest and is legitimate goal of legislative action. Corr-Williams Wholesale Co. v. Stacy Williams Co., 622 F. Supp. 156, 1985 U.S. Dist. LEXIS 14298 (S.D. Miss. 1985).

In a tax sale proceeding, due process is not afforded a landowner if his lands are assessed by a void description, nor can land be conveyed except by a writing containing a description capable of being applied to a particular tract of land. Calmes v. Weill, 243 So. 2d 408, 1971 Miss. LEXIS 1509 (Miss. 1971).

The legislature may provide for a resale of tax lands held by it although the previous sale to the state was invalid. Marble v. Fife, 69 Miss. 596, 13 So. 842, 1891 Miss. LEXIS 168 (Miss. 1891).

The legislature cannot retroactively make valid a void sale of land for taxes. Dingey v. Paxton, 60 Miss. 1038, 1883 Miss. LEXIS 56 (Miss. 1883).

The legislature cannot declare lands forfeited to the state for nonpayment of taxes without sale. Griffin v. Mixon, 38 Miss. 424, 1860 Miss. LEXIS 16 (Miss. 1860).

5. – – License and use taxes, taxation.

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 Constitution 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).

This section is not violated by an annual privilege or premium tax levied on the gross premiums received by foreign insurance companies from contracts or insurance policies written or covering risks in this state, even though the tax is concededly unequal and discriminatory in that a lesser tax is imposed on the business of local companies. Prudential Ins. Co. v. Barnett, 200 Miss. 233, 27 So. 2d 60, 1946 Miss. LEXIS 288 (Miss. 1946).

Licensed person selling beer held not entitled to restrain enforcement of ordinance adopted by board of supervisors finding the district in which such person sold beer was a residential district and prohibiting sale of beer therein. Alexander v. Graves, 178 Miss. 583, 173 So. 417, 1937 Miss. LEXIS 221 (Miss. 1937).

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).

Tobacco tax statute does not violate constitutional provisions prohibiting taking of property for public use without compensation. Edward Hines Lumber Co. v. Hall, 148 So. 373 (Miss. 1933).

The legislature may impose a license tax on railroads. New Orleans, M. & C.R. Co. v. State, 110 Miss. 290, 70 So. 355, 1915 Miss. LEXIS 37 (Miss. 1915).

The imposition of an additional privilege tax on railroads claiming exemption from state supervision under maximum and minimum provisions in their charters was unconstitutional as depriving such railroads of property without due process of law. Gulf & S. I. R. Co. v. Adams, 90 Miss. 559, 45 So. 91, 1907 Miss. LEXIS 128 (Miss. 1907).

Under the Constitution a privilege tax on manufacturers, distributors and retailers of Coca-Cola may be levied. Coca-Cola Co. v. Skillman, 91 Miss. 677, 44 So. 985, 1907 Miss. LEXIS 165 (Miss. 1907).

Acts of 1904, c 176, and an ordinance by its authority as to privilege taxes on the business of loaning money on furniture, etc., is violative of this section. Rodge v. Kelly, 88 Miss. 209, 40 So. 552, 1906 Miss. LEXIS 121 (Miss. 1906); Hyland v. Sharp, 88 Miss. 567, 41 So. 264, 1906 Miss. LEXIS 175 (Miss. 1906).

6. – – Sales and use taxes, taxation.

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).

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).

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).

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).

A retroactive provision in a sales tax law which changes the limitations upon the right of a taxpayer to sue to recover taxes paid is invalid in so far as it undertakes to compel a court to set aside a previous judgment in favor of the taxpayer, 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).

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 due process, 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).

Sales tax statute 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, 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 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).

Statute imposing sales tax in greater amount on retail merchants than wholesalers, but requiring payment of the wholesale tax where retailer sold stock in bulk and taxing credit sales on basis of payments, held not unconstitutional as an arbitrary classification violating due process. Notgrass Drug Co. v. State, 175 Miss. 358, 165 So. 884, 1936 Miss. LEXIS 6 (Miss. 1936).

Statute imposing sales tax that exempted sales of school books, agricultural products, and articles in preparing such products for market held not unconstitutional as denying due process because discriminating against those required to pay the tax. Notgrass Drug Co. v. State, 175 Miss. 358, 165 So. 884, 1936 Miss. LEXIS 6 (Miss. 1936).

Statute imposing tax on sales of retail merchants held not unconstitutional as double taxation. Notgrass Drug Co. v. State, 175 Miss. 358, 165 So. 884, 1936 Miss. LEXIS 6 (Miss. 1936).

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).

7. Employment and labor relations.

Circuit court erred in dismissing an employee’s appeal of a city civil service commission’s affirmance of his termination on the ground that pursuant to Miss. Unif. Cir. & Cty. R. 5.05 his, decision to wait forty days before he requested its assistance in compelling the commission to file the transcript exceeded the allowable thirty days because under Miss. R. App. P. 2(a)(2), the employee was entitled to notice from the circuit clerk of the deficiency in his appeal and fourteen days to correct any deficiency, and that lack of notice and opportunity to remedy the deficiency deprived the employee of due process; the circuit court may still dismiss an appeal for which an appellant has failed to timely provide a record, but the Mississippi Rules of Appellate Procedure apply to an appeal to circuit court. Fields v. City of Clarksdale, 27 So.3d 464, 2010 Miss. App. LEXIS 49 (Miss. Ct. App. 2010).

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).

A college employee was denied due process where her application for duty-related disability benefits was denied by a medical review board that included two physicians, and her subsequent appeal was heard by an appeals board which included the same two physicians; the employee’s constitutional guarantees of due process were violated by virtue of the physicians sitting in judgment of their own conclusions that she was not entitled to disability benefits. Flowers v. Public Emples. Retirement Sys., 748 So. 2d 178, 1999 Miss. App. LEXIS 431 (Miss. Ct. App. 1999), overruled in part, Flowers v. Public Emples. Ret. Sys., 952 So. 2d 972, 2006 Miss. App. LEXIS 778 (Miss. Ct. App. 2006).

A teacher was denied due process where her application for duty-related disability benefits was denied by a medical review board that included two physicians, and her subsequent appeal was heard by an appeals board which included the same two physicians; the teacher’s constitutional guarantees of due process were violated by virtue of the physicians sitting in judgment of their own conclusions that she was not entitled to disability benefits. Burns v. Public Emples. Retirement Sys., 748 So. 2d 181, 1999 Miss. App. LEXIS 430 (Miss. Ct. App. 1999), overruled in part, Flowers v. Public Emples. Ret. Sys., 952 So. 2d 972, 2006 Miss. App. LEXIS 778 (Miss. Ct. App. 2006), overruled in part, Flowers v. Public Emples. Ret. Sys., 2006 Miss. App. LEXIS 247 (Miss. Ct. App. Apr. 4, 2006).

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. June 29, 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. June 29, 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 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).

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).

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).

Statutes cannot be enacted under this section authorizing employees of a corporation to recover when employees of individuals, etc., similarly situated cannot. Such statutes must be based on some difference inherent in the nature of the business, which difference serves as a basis for and warrants the classification. Ballard v. Mississippi Cotton Oil Co., 81 Miss. 507, 34 So. 533, 1902 Miss. LEXIS 212 (Miss. 1902).

8. Judicial proceedings–In general.

County did not show 2004 Miss. Private and Local Laws ch. 920, requiring the county to distribute portions of a gaming fee to a town and a school district, was unconstitutional because the county had no standing to invoke due process protections against the state. Tunica County v. Town of Tunica, 227 So.3d 1007, 2017 Miss. LEXIS 179 (Miss. 2017).

It is outside the supreme court’s authority to decide whether, as a matter of public policy, all indigent parents in Mississippi should be entitled to appointed counsel in termination proceedings; the Mississippi Legislature is the proper authority to address this important issue, as any public-policy determinations of the law are vested exclusively in the legislative branch of government. Blakeney v. McRee, 188 So.3d 1154, 2016 Miss. LEXIS 87 (Miss. 2016).

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 due process provision of the Mississippi Constitution does not require the additional step of appointment of counsel in all termination cases. Blakeney v. McRee, 188 So.3d 1154, 2016 Miss. LEXIS 87 (Miss. 2016).

State could not have proved its case against defendant without expert testimony, and the trial court’s denial of funds for the procurement of expert witnesses denied defendant his due process rights under the Fourteenth Amendment to the United States Constitution and Miss. Const. art. III, § 14, as well as his right to a fair trial. Isham v. State, 161 So.3d 1076, 2015 Miss. LEXIS 191 (Miss. 2015).

Although a property owner was afforded minimum due process under the United States and Mississippi Constitutions in a civil forfeiture case, the dismissal of his petition for a failure to attend court was problematic; even if the owner failed to serve a county with a copy of his petition, the county was notified that the petition was filed with the court. Moreover, the county participated in the contest by issuing witness subpoenas; assuming a dismissal of the claim was not required based on a speedy trial issue, the county had to show by a preponderance of the evidence that the property should have been forfeited. 1984 Chevy Camaro v. Lawrence County Sheriff's Dep't, 148 So.3d 672, 2014 Miss. App. LEXIS 562 (Miss. Ct. App. 2014).

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).

In a medical malpractice suit against two doctors, the patient was not denied a fair and impartial trial under Miss. Const. Art. III, § 14 when the trial court properly did not excuse for cause a former patient of one of the doctors who had an unspecified surgical procedure performed 15 years before the lawsuit because the former patient was not biased in favor of the doctor and he swore that his prior experience would not cause him to favor the doctor. Heaney v. Hewes, 8 So.3d 221, 2008 Miss. App. LEXIS 588 (Miss. Ct. App. 2008), cert. denied, 12 So.3d 531, 2009 Miss. LEXIS 206 (Miss. 2009).

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).

The right to a trial by a fair and impartial jury is guaranteed by Mississippi Constitution Article III, § 14, § 26, and § 31. Hudson v. Taleff, 546 So. 2d 359, 1989 Miss. LEXIS 299 (Miss. 1989).

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).

Unfair cigarette sales law requires proof of intent to both injure competitors and destroy or substantially lessen competition, and mere intent to injure competitors is insufficient; Mississippi unfair cigarette sales law does not violate due process since court cannot conclude that rebate provision bears no rational relation to state’s legitimate interest in protecting healthy market competition and in view of fact that legislature is under no duty to pick least restrictive means for furthering its legitimate interests; protection of public from unfair business practices which tend to injure competitors and destroy or substantially lessen competition is necessarily matter affected with public interest and is legitimate goal of legislative action. Corr-Williams Wholesale Co. v. Stacy Williams Co., 622 F. Supp. 156, 1985 U.S. Dist. LEXIS 14298 (S.D. Miss. 1985).

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).

In proceedings for issuance of bonds under Code 1942, § 6370 authorizing consolidated school districts to issue bonds for improvement and repair of school buildings, allegations of objectors that signers of petition did not constitute a majority, which, if true, would render bonds void, was improperly stricken by the court, which should have heard and determined the same as required by due process. In re Savannah Special Consol. School Dist., 208 Miss. 460, 44 So. 2d 545, 1950 Miss. LEXIS 265 (Miss. 1950).

It is not violative of this section for the Supreme Court to reverse judgment as to amount of damages only without reversing the whole case. 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).

A reversal or new trial on issue of amount of damages only does not deprive appellant of property without due process of law. Yazoo & M. V. R. Co. v. Scott, 108 Miss. 871, 67 So. 491, 1914 Miss. LEXIS 287 (Miss. 1914).

Section 4910, Code of 1906, which denied circuit courts power to grant new trials for excessive verdicts is contrary to this section. Yazoo & M. V. R. Co. v. Wallace, 90 Miss. 609, 43 So. 469, 1907 Miss. LEXIS 67 (Miss. 1907).

To prevent a foreign insurance company suing in state courts where such company has never attempted to do business in the state is violative of this section. Swing v. B. E. Brister & Co., 87 Miss. 516, 40 So. 146, 1905 Miss. LEXIS 181 (Miss. 1905).

Section 4370 of the Code of 1892 (Code 1906 § 4936), in so far as it provides that causes cannot be reversed for jurisdictional defects, deprives one of due process of law. Arbuckle v. State, 80 Miss. 15, 31 So. 437, 1902 Miss. LEXIS 219 (Miss. 1902).

The decision or judgment remaining undisturbed, the revision of an opinion which expresses but the reasons of the decision does not involve “due process of law.” Adams v. Yazoo & M. V. R. Co., 77 Miss. 194, 24 So. 200, 1899 Miss. LEXIS 36 (Miss. 1899), aff'd, 180 U.S. 1, 21 S. Ct. 240, 45 L. Ed. 395, 1901 U.S. LEXIS 1278 (U.S. 1901).

“Due process of law” does not require that a jury try the case. Fant v. Buchanan, 17 So. 371 (Miss. 1895).

The legislature cannot provide for the infliction of a penalty and its collection by summary process, without a judicial proceeding adjudicating the liability. McBride v. Adams, 70 Miss. 716, 12 So. 699 (Miss. 1893).

A purchase of land by a deputy sheriff at his principal’s sale cannot be set aside by motion; so to do would be to deprive of property without due process of law. Flournoy v. Smith, 4 Miss. 62, 1838 Miss. LEXIS 14 (Miss. 1838).

9. – – Gifts, judicial proceedings.

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).

10. – – Discovery, judicial proceedings.

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).

Code 1906 § 1938 providing for the filing by a litigant of interrogatories, to be answered by the adverse party residing out of the state, the answer to be used as evidence, does not deprive the adverse party of due process of law. Illinois C. R. Co. v. Sanford, 23 So. 942 (Miss. 1898).

11. – – Divorce, alimony, maintenance, and support, judicial proceedings.

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).

In a divorce case, a former husband’s right to due process under Miss. Const. Art. 3, § 14 and the U.S. Constitution were not violated since he was afforded a full, complete, and impartial hearing; the husband called witnesses, was afforded the right to cross-examine, and presented documentary evidence to the chancery court. Stuart v. Stuart, 956 So. 2d 295, 2006 Miss. App. LEXIS 759 (Miss. Ct. App. 2006).

The husband’s right to due process was not violated when the judge limited the trial in a divorce proceeding to one day because (1) the husband could have requested a continuance, but did not; (2) the husband could have objected on the record to the time limit, but did not; (3) the record showed that the husband’s counsel indicated a readiness to go forward at the end of the wife’s case-in-chief after the husband’s motion for a directed verdict was overruled by the trial court; and (4) there was no indication in the record from the husband that the time limits placed on the trial were problematic. Moore v. Moore, 757 So. 2d 1043, 2000 Miss. App. LEXIS 125 (Miss. Ct. App. 2000).

The appellant was entitled under his right to due process to a hearing on the issue of a material change of circumstances which if proven would warrant a modification of the divorce decree regarding child support. Childers v. Childers, 717 So. 2d 1279, 1998 Miss. LEXIS 337 (Miss. 1998).

The appellant was afforded a full, complete hearing at which he was given the opportunity to call witnesses and be heard by the trial 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).

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 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).

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 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).

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).

12. – – Child custody, judicial proceedings.

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).

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).

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).

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).

A mother whose parental rights were terminated under §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).

13. – – Contempt, judicial proceedings.

Defendant’s due process rights were not violated by a contempt conviction because a trial court, even though not required for direct contempt, gave defendant notice and conducted a hearing where she was allowed to present evidence. 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).

Where speaker uttered vulgar, profane and indecent language concerning the presiding judge while the judge was in his retiring room, and where the presiding judge 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).

14. – – Real property, judicial proceedings.

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).

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).

Developer’s federal and state due process claims against a city were unripe because the developer had not suffered a deprivation of property; the city had not made a final determination of whether, or under what circumstances, it would issue a building permit to the developer, or whether it would condemn the developer’s property. Urban Developers LLC v. City of Jackson, 468 F.3d 281, 2006 U.S. App. LEXIS 26435 (5th Cir. Miss. 2006).

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).

15. – – Adoption, judicial proceedings.

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 deny 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).

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).

16. – – Education, judicial proceedings.

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).

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).

The right of parents to control the religious education of their children is protected by the due process clause. In re Guardianship of Faust, 239 Miss. 299, 123 So. 2d 218, 1960 Miss. LEXIS 286 (Miss. 1960).

17. – – Juvenile detention, judicial proceedings.

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).

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).

Code 1942, § 7185-06 which permits a minor to be committed to a state institution as a delinquent child, upon the voluntary appearance of the minor, does not afford due process. Sharp v. State, 240 Miss. 629, 127 So. 2d 865, 1961 Miss. LEXIS 493 (Miss. 1961).

18. Crimes and criminal procedure – In general.

In a statutory rape case, defendant was denied due process under the federal and state constitutions due to acts of prosecutorial misconduct; inter alia, there were improper comments on facts not in evidence, about defendant’s character, and about the credibility of witnesses. White v. State, 228 So.3d 893, 2017 Miss. App. LEXIS 81 (Miss. Ct. App.), cert. denied, 229 So.3d 118, 2017 Miss. LEXIS 389 (Miss. 2017).

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).

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).

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).

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, and 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 capital murder case, the unsworn statements of one juror showing that the juror was predisposed to voting for death without weighing mitigating factors was countered with an affidavit from the juror that the juror 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 lied about her views on mitigating evidence, that the juror was unwilling to consider mitigating factors, or that she had a predisposition to the death penalty that she did not disclose during voir dire; thus, the inmate’s claim that the two jurors were predisposed to 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).

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).

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); Malone v. State, 486 So. 2d 367, 1986 Miss. LEXIS 3139 (Miss. 1986).

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).

Where fundamental and constitutional rights are ignored, due process does not exist, and a fair trial in contemplation of law cannot be had. Brooks v. State, 209 Miss. 150, 46 So. 2d 94, 1950 Miss. LEXIS 373 (Miss. 1950).

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).

19. – – Admissibility of evidence, crimes and criminal procedure.

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 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 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).

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).

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).

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).

At trial of sexual battery charge, the exclusion from evidence of letters written by prosecutrix to defendant, predicated on defense’s failure to disclose them in pretrial discovery, did not deprive defendant of his constitutional right to confront witnesses, to a fair trial, and to due process of law, even though the excluded letters, which otherwise were competent evidence, on their face reflected a relationship between defendant and his stepdaughter (prosecutrix) substantially at odds with prosecution’s theory that defendant had employed threats of violence or death to force his stepdaughter to engage in sexual acts with him, contained materials which impeached testimony of prosecutrix, and contradicted other more peripheral parts of prosecution’s case. Coates v. State, 495 So. 2d 464, 1986 Miss. LEXIS 2662 (Miss. 1986).

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).

Questions asked by the state’s attorney on cross-examination of defense witnesses in an attempt to impeach their credibility, which were directed not to impeachment by way of false swearing but rather to discrediting the witnesses by repeated questions directed either to the immorality of such witnesses or to a possible financial gain to one witness occasioned by the death of the victim, were prejudicial, requiring prejudicial answers, and being repeatedly pressed on the jury, such questions deprived the defendant of due process, necessitating a reversal of the case. Wood v. State, 257 So. 2d 193, 1972 Miss. LEXIS 1446 (Miss. 1972).

20. – – Affidavits or indictments, crimes and criminal procedure.

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).

There was no merit to appellant’s assertions that his due process rights were violated when an indictment was amended to reflect his habitual offender status because appellant admitted that he was informed of sentencing recommendations prior to his guilty plea, and appellant was aware early in the proceedings that he was to be charged as an habitual offender. Sowell v. State, 970 So. 2d 752, 2007 Miss. App. LEXIS 820 (Miss. Ct. App. 2007).

Defendant’s convictions for the simple assault of a peace officer were appropriate because the trial court did not err in allowing an amendment to his indictments on the morning of trial since the deleted phrase was merely a scrivener’s error and had nothing to do with the charge. The provision was not substantive to the underlying charge of assaulting the officers with punches, kicks, and threats. Graham v. State, 967 So. 2d 670, 2007 Miss. App. LEXIS 721 (Miss. Ct. App. 2007).

Where defendant was tried and convicted by a justice of the peace upon what purported to be an affidavit charging unlawful possession of intoxicating liquor, which affidavit was neither signed nor sworn to prior to trial, but after conviction and appeal taken therefrom such affidavit was signed and sworn to by the officer who had previously procured its issuance, defendant was tried without due process, and on appeal the circuit court could not, by allowing the belated affidavit to stand, at once retroactively bestow upon and borrow from the justice of the peace its jurisdiction. Bramlette v. State, 193 Miss. 24, 8 So. 2d 234, 1942 Miss. LEXIS 95 (Miss. 1942).

21. – – Assistance of counsel, crimes and criminal procedure.

In a child custody case, even though due process entitled a mother to counsel during criminal contempt proceedings, there was no violation of the right to counsel under U.S. Const. Amend. VI where the mother had failed to secure counsel, despite being given 6 months to do so. Davis v. Davis, 17 So.3d 114, 2009 Miss. App. LEXIS 105 (Miss. Ct. App.), cert. denied, 17 So.3d 99, 2009 Miss. LEXIS 436 (Miss. 2009).

Defendant’s murder conviction was appropriate where her due process rights were not violated because the record was devoid of any evidence or proof as to precisely how additional time by way of a continuance would have assisted counsel. Lyle v. State, 908 So. 2d 189, 2005 Miss. App. LEXIS 520 (Miss. Ct. App. 2005).

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).

Undivided loyalty of defense counsel is essential to due process. Smith v. State, 666 So. 2d 810, 1995 Miss. LEXIS 628 (Miss. 1995).

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).

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 (CA11 Fla) 737 F.2d 894, habeas corpus proceeding (SD Fla) 587 F Supp 525, affd (CA11 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 U.S. 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 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 (Miss. 1985) 473 So. 2d 964. Alexander v. State, 503 So. 2d 235, 1987 Miss. LEXIS 2359 (Miss. 1987).

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).

The duty of the court to assign counsel to defend one who, charged with a capital crime, is unable to employ counsel was not intended as a mere formality, and means more than the mere appointment of counsel. McKenzie v. State, 233 Miss. 216, 101 So. 2d 651, 1958 Miss. LEXIS 374 (Miss. 1958).

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 guarantied by him under Code 1942, § 2505, and failure to do so was failure to follow the mandatory provisions of the statutes 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).

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).

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).

The trial court is not authorized or required to appoint counsel for a defendant accused of grand larceny, a noncapital felony. Fogle v. State, 231 Miss. 746, 97 So. 2d 645, 1957 Miss. LEXIS 561 (Miss. 1957).

In a prosecution for assault and battery with intent to kill, where defendant was put to trial within minutes after his counsel had withdrawn from the case, the defendant was unable to make an adequate and proper defense and he was therefore deprived of his constitutional rights. Eubanks v. State, 78 So. 2d 588 (Miss. 1955).

Failure to defense attorney to call as witnesses defendant’s two sisters in his behalf was not a denial of due process based upon the assumption that defendant was not properly represented by counsel, where there was no showing in the record as to what the testimony of his witnesses would have been and also where defendant was permitted as a witness to detail conversation between these two sisters, which conversation defendant said he overheard and which presumably constituted the testimony the sisters would have given as witnesses. Sims v. State, 209 Miss. 545, 47 So. 2d 849, 1950 Miss. LEXIS 412 (Miss. 1950).

Failure of defense attorney to object to introduction of evidence of shot gun used in committing homicide for which he was on trial and a photograph showing the scene of crime and surroundings, was not a denial of due process based upon the assumption that the defendant was not properly represented by counsel. Sims v. State, 209 Miss. 545, 47 So. 2d 849, 1950 Miss. LEXIS 412 (Miss. 1950).

Failure of the defense attorney to make a motion for continuance was not a denial of due process based upon the assumption that the defendant was not properly represented by counsel where a year has elapsed since the homicide and the case had been once continued, in absence of showing that counsel needed more time for preparation of defense. Sims v. State, 209 Miss. 545, 47 So. 2d 849, 1950 Miss. LEXIS 412 (Miss. 1950).

This section and Code 1942, § 2505, providing that where any person is in jail charged with capital crime, court, on being satisfied he is unable to employ counsel, shall choose counsel to defend him, do not authorize or require trial court to furnish, or offer to furnish, an attorney to represent a person in his trial on non-capital felony charge of burglary. 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).

22. – – Change of venue, crimes and criminal procedure.

When coverage by local media, including television, radio and newspaper, of capital murder case, which in effect tries and finds defendant guilty not only of capital murder as charged, but also of capital murder in another, uncharged case, is so extensive that at proceedings on voir dire of prospective jurors some 101/2 months after defendant’s arrest, everyone of prospective jurors has heard of case, there is presumption that defendant cannot obtain fair and impartial jury and venue of case should be transferred to county substantially outside area of coverage of local media. Fisher v. State, 481 So. 2d 203, 1985 Miss. LEXIS 2281 (Miss. 1985).

23. – – Competency of defendant, crimes and criminal 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).

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).

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).

Federal due process clause permits state to apply presumption that criminal defendant is competent to stand trial and require defendant to bear burden of proving otherwise, by preponderance of evidence; such allocation of burden does not offend principal of justice so rooted in traditions and conscience of people as to be ranked fundamental, and there was no reasons to disturb state Supreme Court’s conclusion that state’s presumption of competence was simply restatement of burden of proof. Medina v. California, 505 U.S. 437, 112 S. Ct. 2572, 120 L. Ed. 2d 353, 1992 U.S. LEXIS 3696 (U.S. 1992).

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).

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 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).

Due process clause requires that no one shall be tried for the commission of a crime when he is mentally incapable of making a rational defense, that is, incapable of remembering and intelligently stating the facts on which his defense rests, irrespective of whether his mental condition is casual, temporary or permanent and regardless of the cause therefor. Carter v. State, 198 Miss. 523, 21 So. 2d 404, 1945 Miss. LEXIS 226 (Miss. 1945).

Due process clause requires that when it appears in trial court in criminal case that the defendant is probably mentally incapable of making a rational defense, the trial should not proceed until that question has been investigated, and it appears that he is sufficiently rational for the purposes of his defense. Carter v. State, 198 Miss. 523, 21 So. 2d 404, 1945 Miss. LEXIS 226 (Miss. 1945).

Murder trial of epileptic, who shortly before commission of homicide had escaped from insane hospital, at a time when he was so sleepy or drowsy, as result of tablets administered to him by sheriff pursuant to doctor’s order, as to be incapable of remembering and intelligently stating what occurred at the homicide, where it was not clear from the state’s evidence as to who was the aggressor, constituted violation of due process. Carter v. State, 198 Miss. 523, 21 So. 2d 404, 1945 Miss. LEXIS 226 (Miss. 1945).

24. – – Confessions, crimes and criminal procedure.

Because defendants entered voluntary and intelligent guilty pleas to armed robbery, they waived the right to challenge the voluntariness of their confessions to such under the U.S. Constitution and Miss. Const. Art. 3, §§ 14 and 26; therefore, their motions for post-conviction relief were denied. Holland v. State, 956 So. 2d 322, 2007 Miss. App. LEXIS 56 (Miss. Ct. App. 2007).

State presented ample evidence that the statement made by defendant at booking, and before he was read his Miranda rights, was voluntary and was not in response to express questioning or its functional equivalent. Defendant was simply present in the booking room when two officers were having a discussion about paperwork in order to book him, and defendant voluntarily responded to a question that was posed to one officer by the other officer, of how many charges of homicide were being filed against defendant; defendant independently volunteered the information that he had only shot one person, without compulsion or coercion. Hammons v. State, 918 So. 2d 62, 2005 Miss. LEXIS 515 (Miss. 2005).

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).

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).

Because (1) defendant was read defendant’s rights, (2) defendant acknowledged that defendant understood those rights, (3) defendant exhibited no erratic behavior calling into question the voluntariness to confess, and (4) no evidence of police coercion was found, the court rejected defendant’s claim that confessions were involuntary, 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).

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 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).

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. 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).

25. – – Contempt, crimes and criminal procedure.

In a child custody case, a mother was provided her procedural due process rights with regards to a finding of constructive criminal contempt because the charges were specific, the mother was provided with notice, and she was afforded the opportunity to be heard. Davis v. Davis, 17 So.3d 114, 2009 Miss. App. LEXIS 105 (Miss. Ct. App.), cert. denied, 17 So.3d 99, 2009 Miss. LEXIS 436 (Miss. 2009).

26. – – Cross examination, crimes and criminal procedure.

In defendant’s criminal prosecution for murder and attempted arson, the State did not dilute defendant’s rights of confrontation and cross-examination under Miss. Const. Art. III, §§ 14, 26 by cross-examining and redirecting its witnesses. The State was permitted to redirect a witness about her statement where defense counsel placed the statement at issue by introducing it into evidence on cross-examination; the State was permitted to ask its witness leading questions about the statement. Brown v. State, 981 So. 2d 1007, 2007 Miss. App. LEXIS 806 (Miss. Ct. App. 2007), cert. denied, 981 So. 2d 298, 2008 Miss. LEXIS 222 (Miss. 2008).

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).

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).

27. – – Disclosure of evidence, crimes and criminal procedure.

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).

Where defendant claimed the prosecution suppressed a statement made by a witness to the police on the night of the murder, the court found no Brady violation. Defendant made no showing that the contents of such a statement would have been exculpatory, and defendant had the opportunity at trial to call the witness and examine him thoroughly. Amos v. State, 911 So. 2d 644, 2005 Miss. App. LEXIS 652 (Miss. Ct. App. 2005).

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).

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).

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).

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).

Due process is not denied by refusing the request of defendant in a criminal case to require production of a written statement made by a state’s witness to the district attorney, not shown to be at variance with testimony at the trial. Mattox v. State, 243 Miss. 402, 139 So. 2d 653, 1962 Miss. LEXIS 357 (Miss. 1962).

28. – – Disqualification of judge, crimes and criminal procedure.

Where the judge presiding over appellant’s post-conviction motion served a prosecutorial role in the underlying criminal case, these functions were inherently contradictory – zealous advocate versus neutral adjudicator. Appellant’s right to due process was violated by the judge’s failure to recuse himself. Emanuel v. State, 2016 Tex. App. LEXIS 5030 (Tex. App. Tyler May 11, 2016).

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).

29. – – Jury trial, crimes and criminal procedure.

If exercising ten of 11 peremptory challenges against African-American members of a venire did not suffice as a prima facie case of purposeful discrimination when one-third of the panel was African-American, then it was difficult to imagine what would; therefore, in a robbery case, the state should have been ordered to provide race-neutral reasons for its use of peremptory challenges because a prima facie case was shown by defendant. Scott v. State, 981 So. 2d 979, 2007 Miss. App. LEXIS 419 (Miss. Ct. App. 2007), rev'd, 981 So. 2d 964, 2008 Miss. LEXIS 230 (Miss. 2008).

Defendant argued that the trial judge’s phrase that the jury would “hear both sides” directly opposed his right to remain silent. However, there was not plain error as the judge never stated that phrase meant that defendant had to testify, and the judge explicitly told the jury that the State had the burden of proof and that defendant was not required to testify; the trial judge was also merely trying to note the differences between a grand jury and a trial jury, namely that during grand jury proceedings the defendant’s side of the case is not heard, Robertson v. State, 921 So. 2d 348, 2005 Miss. App. LEXIS 175 (Miss. Ct. App. 2005), cert. denied, 926 So. 2d 922, 2006 Miss. LEXIS 165 (Miss. 2006).

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).

Although the trial court failed to instruct the jury of the elements of aggravated assault against police officers, it appeared beyond a reasonable doubt that the absence of the element instruction did not cause or contribute to the jury reaching the verdict that it reached. The evidence was overwhelming that defendant used his car in a manner that clearly indicated that he was attempting to cause serious bodily injury with a deadly weapon; consequently, that error was harmless and there was also no error in admitting evidence that defendant was being pursued after a robbery in a nearby state (for which defendant had not been convicted), where that evidence was necessary to tell a complete story to the jury. Conerly v. State, 879 So. 2d 1101, 2004 Miss. App. LEXIS 762 (Miss. Ct. App. 2004).

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).

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).

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 evidence 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 inference on the jury prejudicial to the defendant, it being immaterial whether the judge actually made such statements. McCoy v. State, 207 Miss. 272, 42 So. 2d 195, 1949 Miss. LEXIS 336 (Miss. 1949).

30. – – Examination and qualification of jurors, crimes and criminal procedure.

In defendant’s murder case, the State’s proferred reasons for striking a juror were race neutral because the State’s reason for striking the juror was that the prosecutor once had a contentious civil matter involving members of the juror’s family. 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 murder case, the State’s proferred reasons for striking a juror were race neutral because, although mistaken, the State believe that the juror had been convicted of four misdemeanors. The juror had actually only been charged with the crimes, not convicted. 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).

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 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).

Defendant’s capital murder convictions and death sentence were proper where the killings occurred within a few hours and were all part of the common scheme to rob his ex-father-in-law and eliminate any witnesses; further, although the State struck substantially more women than men, the fact that the selected jury incorporated a proportionally larger percentage of women than were in the venire contradicted defendant’s claim of gender discrimination. Brawner v. State, 872 So. 2d 1, 2004 Miss. LEXIS 458 (Miss. 2004).

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 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).

In a criminal prosecution, having a deaf person on a jury would constitute a denial of the accused’s rights to due process of law and to a trial before a fair and impartial jury. Weaver v. State, 497 So. 2d 1089, 1986 Miss. LEXIS 2660 (Miss. 1986).

Normally person engaged in law enforcement, or related by blood or marriage to one engaged in law enforcement, is not per se excluded from jury service in criminal case; however, in highly unusual fact situation in which 12 of 39 veniremen considered by court and not excused for cause are either police officers or related by blood or marriage to current or former police officers, and in which uniformed officer serves as foreman, defendant is denied trial by impartial jury. Mhoon v. State, 464 So. 2d 77, 1985 Miss. LEXIS 1904 (Miss. 1985), limited, Dotson v. Mississippi (Miss. Ct. App. 1996).

31. – – Fair trial, crimes and criminal procedure.

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).

Defendant’s right to a fair and impartial jury was not violated by an alleged relationship between one juror and a witness for the State because none of the facts asserted by defendant with regard to the relations between the juror and the police officer, who was the witness, could be found in or supported by the record. Hill v. State, 4 So.3d 1063, 2009 Miss. App. LEXIS 14 (Miss. Ct. App. 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).

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).

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).

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).

There was no evidence that the prosecution’s statements during its opening and closing arguments 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).

Prosecutor did not overstep his bounds when he asked the jury not to let the defendant get away with the murder with which he was charged. Furthermore, the trial court instructed the jury that arguments and statements of counsel were not evidence and that if any argument, statement or remark had no basis in the evidence, then the jury was to disregard that argument, statement or remark; in any event, there was no prosecutorial misconduct and no grounds for reversal in light of said instructions. Davis v. State, 904 So. 2d 1212, 2004 Miss. App. LEXIS 1053 (Miss. Ct. App. 2004), cert. denied, 898 So. 2d 679, 2005 Miss. LEXIS 269 (Miss. 2005).

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).

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 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 that it would constitute reversible error. Williams v. State, 868 So. 2d 346, 2003 Miss. App. LEXIS 669 (Miss. Ct. App. 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 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).

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).

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).

Presence of 4 uniformed, armed state troopers in courtroom, as supplement to state court’s security force, does not violate armed robbery defendant’s constitutional right to fair trial. Holbrook v. Flynn, 475 U.S. 560, 106 S. Ct. 1340, 89 L. Ed. 2d 525, 1986 U.S. LEXIS 37 (U.S. 1986).

As applied to criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice and in order to declare a denial of it court must find that absence of that fairness fatally infected the trial. Brooks v. State, 209 Miss. 150, 46 So. 2d 94, 1950 Miss. LEXIS 373 (Miss. 1950).

32. – – Freedom of speech or press, crimes and criminal procedure.

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 be 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).

33. – – Guilty pleas, crimes and criminal procedure.

Nothing in the record showed that an inmate’s guilty plea was not entered knowingly and voluntarily, given that he was asked about his education, whether he had reviewed the plea petitions, and whether he understood them and that he was waiving certain rights, plus the inmate stated that he understood the charges, the consequences of pleading guilty, and that he was entering his plea voluntarily. Gaddy v. State, 21 So.3d 677, 2009 Miss. App. LEXIS 236 (Miss. Ct. App. 2009), cert. denied, 559 U.S. 1078, 130 S. Ct. 2115, 176 L. Ed. 2d 741, 2010 U.S. LEXIS 3422 (U.S. 2010).

Because appellant inmate did not raise an issue relating to an alleged due process violation based on the lack of a court reporter in a motion for post-conviction relief, the issue was procedurally barred; at any rate, there was a court reporter present at the inmate’s plea colloquy hearing. Shies v. State, 19 So.3d 770, 2009 Miss. App. LEXIS 143 (Miss. Ct. App.), cert. denied, 19 So.3d 82, 2009 Miss. LEXIS 504 (Miss. 2009).

Motion for post-conviction relief was properly denied because appellant inmate’s guilty plea to manslaughter under Miss. Unif. Cir. & County Ct. Prac. R. 8.04 was voluntary in nature where he testified that he was guilty, he was satisfied with his attorney, and that he understood the charges against him. Moreover, the entry of a voluntary plea waived speedy trial and confession-related issues. Jenkins v. State, 986 So. 2d 1031, 2008 Miss. App. LEXIS 35 (Miss. Ct. App.), cert. denied, 987 So. 2d 451, 2008 Miss. LEXIS 369 (Miss. 2008).

Motion for post-conviction relief was denied in a case where defendant’s suspended sentence for statutory rape was revoked because he waived issues relating to a speedy trial and defects in an evidence sample due to a guilty plea, there was no evidence that an indictment was manufactured, and the revocation of the suspended sentence was permitted under Miss. Code Ann. §47-7-34 and Miss. Code Ann. §47-7-37 where defendant had already served a portion of a five-year sentence after the guilty plea was entered. Davis v. State, 954 So. 2d 530, 2007 Miss. App. LEXIS 259 (Miss. Ct. App. 2007).

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).

Defendant entered a valid guilty plea where he waived his right to a trial and the trial court questioned defendant to determine that the entry of the guilty plea was knowingly and voluntarily given; defendant was competent and understood the plea agreement he had signed, and defendant understood that the trial court could impose a sentence anywhere from the minimum to the maximum. Greer v. State, 920 So. 2d 1039, 2005 Miss. App. LEXIS 856 (Miss. Ct. App. 2005), cert. dismissed, 933 So. 2d 303, 2006 Miss. LEXIS 307 (Miss. 2006).

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).

Plea agreement signed by defendant expressly addressed each of defendant’s constitutional rights and specifically addressed his right against self-incrimination. Defendant was asked in the plea agreement whether he understood that if he pleaded guilty, he would be waiving his constitutional right against self-incrimination and he answered, “yes”; although the better practice would have been for the trial judge to address defendant’s right against self-incrimination specifically, failure to do so was not reversible error, and defendant’s claim of a denial of due process was rejected. Moore v. State, 906 So. 2d 793, 2004 Miss. App. LEXIS 1152 (Miss. Ct. App. 2004).

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 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).

Valid guilty plea operated as a waiver of all non-jurisdictional rights or defects which 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).

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 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).

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. Sanders v. State, 440 So. 2d 278, 1983 Miss. LEXIS 2905 (Miss. 1983).

In a prosecution upon an indictment for first degree murder, there was no constitutional error in accepting a plea of guilty to the reduced charge of second degree murder given with a protestation of innocence, where it appeared that the defendant had intelligently concluded upon the advice of competent counsel that his interests required entry of a guilty plea and the record contained strong evidence of actual guilt, the fact that the defendant would not have pleaded guilty except to avoid a possible death penalty upon a jury conviction of first degree murder not necessarily demonstrating that the plea was not the product of a free and rational choice. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162, 1970 U.S. LEXIS 3 (U.S. 1970).

The 1968 decision of the United States Supreme Court in United States v. Jackson, 390 U.S. 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).

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 U.S. 570, 20 L. Ed. 2d 138, 88 S. Ct. 1209, filed a petition for a writ of habeas corpus alleging that the death penalty provision of Code 1942, § 2217 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 guilty to a charge of murder under § 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).

An ignorant man in his late twenties, who on day of arrest was indicted and sentenced on his plea of guilty, was held to have been denied due process where, without having the indictment explained to him, he was merely asked whether he understood it, whether he realized that he could be sent to the penitentiary on his plea of guilty, and whether he had a lawyer. Walters v. Ernest, 234 Miss. 315, 106 So. 2d 137, 1958 Miss. LEXIS 493 (Miss. 1958).

34. – – Identification of defendant, crimes and criminal procedure.

Trial court did not err in admitting the victim’s in-court identification of defendant because there was substantial credible evidence supporting the trial court’s findings that the in-court identification testimony was not impermissibly tainted by her pre-trial identification of him and the in-court identification was sufficiently reliable to comport with the requirements of due process since, inter alia: (1) the victim had ample opportunity to view defendant at the time of the attempted crime; (2) the victim’s attention was entirely directed at viewing defendant as he tried to hide behind a tree, located approximately three feet from her bedroom window in her backyard; and (3) the victim’s description of defendant in her conversation with the police dispatcher was sufficiently accurate. Brown v. State, 961 So. 2d 720, 2007 Miss. App. LEXIS 13 (Miss. Ct. App. 2007).

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).

Where witnesses at defendant’s trial identified him in court as the person who shot the victim, he failed to preserve his due process claim. Defendant did not have other persons with him at counsel’s table and he failed to request a pre-trial identification. Amos v. State, 911 So. 2d 644, 2005 Miss. App. LEXIS 652 (Miss. Ct. App. 2005).

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 be 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).

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, they 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 they 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 an on-the-scene identification violated his due process rights and prevented him from receiving a fair trial. 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, as far 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 at the police station with the victim did not amount to a 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 besides 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).

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 11/2 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).

35. – – Insanity defense, crimes and criminal procedure.

Statutes providing insanity shall be no defense to murder indictment held violative of due process clause. Sinclair v. State, 161 Miss. 142, 132 So. 581, 1931 Miss. LEXIS 235 (Miss. 1931).

36. – – Instructions, crimes and criminal procedure.

In a carjacking case, even though an indictment and a jury instruction lacked the specific language “from another person’s immediate actual possession,” as set forth in Miss. Code Ann. §97-3-117(1), they were sufficient because the use of the name of the victim was the equivalent of such. Therefore, there was no due process violation, and defense counsel was not ineffective for submitting the instruction to the jury. Perryman v. State, 16 So.3d 41, 2009 Miss. App. LEXIS 145 (Miss. Ct. App.), cert. denied, 15 So.3d 426, 2009 Miss. LEXIS 404 (Miss. 2009).

Defendant’s convictions for the simple assault of a peace officer were appropriate because even though a jury instruction erroneously allowed the jury to find “physical menace” from words alone, it was a harmless error since it was uncontradicted that defendant attacked the officers with kicks and punches. Graham v. State, 967 So. 2d 670, 2007 Miss. App. LEXIS 721 (Miss. Ct. App. 2007).

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).

In first-degree murder case, where trial court instructed on second-degree murder but did not require jury to agree on single theory of first-degree murder, defendant was not entitled as matter of due process to instruction on lesser included offense of robbery, where (a) jury had been instructed on lesser offense of second-degree murder as alternative to either finding guilt of first-degree murder or acquitting defendant, and (b) evidence would have supported second-degree murder conviction; due process concern with eliminating distortion of fact-finding process, which is created when jury is faced with all-or-nothing choice between murder and innocence, was not implicated. Schad v. Arizona, 501 U.S. 624, 111 S. Ct. 2491, 115 L. Ed. 2d 555, 1991 U.S. LEXIS 3631 (U.S. 1991).

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).

37. – – Loss or destruction of evidence, crimes and criminal procedure.

Defendant was not deprived of due process where a tape recording of the drug deal had been lost before trial as defendant had admitted at trial that he had sold the drugs for someone else. Irby v. State, 893 So. 2d 1042, 2004 Miss. LEXIS 1403 (Miss. 2004).

In a criminal prosecution for armed robbery, a convenience store clerk identified defendant in a photographic array. Police failure to preserve a record of which pictures were in the array did not violate defendant’s due process rights; there was no evidence of bad faith and having the photographs would not have changed the outcome of the trial. Scott v. State, 877 So. 2d 549, 2004 Miss. App. LEXIS 653 (Miss. Ct. App. 2004).

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, such that the jury believed the State’s witnesses that the investigation was adequate. Cox v. State, 849 So. 2d 1257, 2003 Miss. LEXIS 337 (Miss. 2003).

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 (Miss. 1987), cert. denied, 484 U.S. 1016, 108 S. Ct. 723, 98 L. Ed. 2d 672 (1988)’.

38. – – Post-conviction relief, crimes and criminal procedure.

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).

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).

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).

39. – – Production of evidence and witnesses, crimes and criminal procedure.

In a statutory rape case, a trial court did not abuse its discretion by refusing to appoint an expert where defendant did not show that it would have aided his defense that semen had been planted in the victim’s vagina; defendant did not want an expert to testify at trial, but only requested assistance with cross-examination. Since he was able to conduct such without the aid of an expert, there was no due process violation. Ladd v. State, 969 So. 2d 141, 2007 Miss. App. LEXIS 762 (Miss. Ct. App. 2007).

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).

Amount of force required to overtake another person’s will to resist is directly proportional to the development of the other’s will; therefore, defendant was properly convicted of kidnapping a child where he used deceit to lure him into a vehicle because the state proved all of the elements of kidnapping, as required by due process. Potts v. State, 955 So. 2d 913, 2007 Miss. App. LEXIS 256 (Miss. Ct. App. 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).

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).

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).

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).

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).

40. – – Sentence and punishment, crimes and criminal procedure.

Inmate’s due-process rights were violated when the jury was allowed to consider an invalid aggravator supported by evidence that was not otherwise admissible, and this error was compounded when the Supreme Court of Mississippi affirmed his sentence. Gillett v. State, 148 So.3d 260, 2014 Miss. LEXIS 287 (Miss. 2014).

Order for restitution which stated that a bank, which was the victim of defendant’s forgeries, was entitled to a judgment against defendant of execution against any of the defendant’s vehicles and/or personal property seized by law enforcement authorities did not violate defendant’s due process rights because defendant was aware that defendant’s personal property had been seized by the authorities and that defendant was going to have to pay restitution. Smith v. State, 130 So.3d 1187, 2014 Miss. App. LEXIS 45 (Miss. Ct. App. 2014).

Post-conviction relief was denied in a case where appellant inmate contended that he was denied due process when he received a 30-year sentence after pleading guilty to three counts of armed robbery. The inmate’s claim of being a first-time offender was completely devoid of merit as he admitted to previous convictions of possession of stolen property and burglary of a vehicle. Oliver v. State, 20 So.3d 16, 2009 Miss. App. LEXIS 202 (Miss. Ct. App.), cert. denied, 19 So.3d 82, 2009 Miss. LEXIS 522 (Miss. 2009).

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 postconviction 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).

Defendant’s due process rights were not violated in a drug case where he was not provided a separate recidivism hearing since he was not entitled to such, defendant acknowledged that he was indicted as a habitual offender and that the maximum punishment was life, and he also admitted that he was previously convicted of several felonies; defendant was unable to complain about the sentence since he was the beneficiary of a lenient sentence where he was given 17-years, despite being a habitual offender. Minchew v. State, 967 So. 2d 1244, 2007 Miss. App. LEXIS 260 (Miss. Ct. App. 2007).

Post-conviction relief was denied in a case where a portion of a suspended sentence was revoked under Miss. Code Ann. §47-7-37 because there was no due process violation since the evidence relied upon was listed, there was no double jeopardy violation since the original sentence was reinstated, and counsel was not required since the case was not complex. Pruitt v. State, 953 So. 2d 302, 2007 Miss. App. LEXIS 203 (Miss. Ct. App. 2007).

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 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).

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).

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).

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).

Court found no merit to defendant’s claim that his due process rights were violated when the trial judge failed to honor his plea agreement because the trial judge clearly informed defendant that the recommended sentence was going to be limited to the current charge. The trial judge stated that he would not take any other charges into consideration when sentencing defendant. Black v. State, 919 So. 2d 1017, 2005 Miss. App. LEXIS 466 (Miss. Ct. App. 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 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).

While 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 that it allow the inmate’s motion to be filed in the trial court for 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).

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).

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).

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).

Although criminal defendants in Mississippi generally have no right to be sentenced by the jury, where a specific statute provides such a guarantee, such as §99-19-101, which requires that the jury perform the weighing of aggravating and mitigating factors, Article 3, §§ 14 and 26 of the Mississippi Constitution operate together to elevate the statutory right to one of constitutional significance which the Supreme Court of Mississippi cannot abridge by applying harmless error analysis, whether by disregarding entirely the invalid circumstance or by applying a limiting construction; thus, a murder defendant’s motion for leave to file a post-conviction petition would be granted where the defendant sought relief based on the jury’s reliance on an invalid aggravating circumstance, and the case would be remanded to the circuit court for new sentencing hearings. Wilcher v. State, 635 So. 2d 789, 1993 Miss. LEXIS 447 (Miss. 1993).

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).

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).

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).

Where prior to the date of execution set for the defendant, the method thereof was changed from hanging to electrocution by means of an electric chair but no chair had as yet been obtained when such date arrived, resentencing and fixing another date for the execution was not a taking of defendant’s life without due process of law. Childress v. State, 1 So. 2d 494 (Miss. 1941).

41. – – Time for review, crimes and criminal procedure.

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).

42. – – Vague or indefinite statutes, crimes and criminal procedure.

Tailgating statute is not impermissibly vague and does not fail to give a driver notice of the prohibited conduct; the statute, coupled with the rules of the road, is sufficiently definite such that an ordinary person can understand the prohibited conduct and that law enforcement can avoid arbitrary enforcement. The statute is sufficiently specific to pass constitutional scrutiny. Nolan v. State, 182 So.3d 484, 2016 Miss. App. LEXIS 21 (Miss. Ct. App. 2016).

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, 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).

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 of the crimes of which they are accused. Perkins v. State, 863 So. 2d 47, 2003 Miss. LEXIS 657 (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).

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).

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).

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).

43. Prisons and prisoners–In general.

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).

44. – – Administrative segregation, prisons and prisoners.

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).

45. – – Earned time, prisons and prisoners.

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).

46. – – Parole, prisons and prisoners.

Inmate’s due-process rights were not violated when his parole was revoked because upon receiving a certified copy of the order of the court of appeals, the parole board had authority pursuant to Miss. Code Ann. 47-7-27 [Repealed] to immediately revoke the inmate’s parole on his earlier conviction; a preliminary revocation hearing and a parole-revocation hearing were held, and the parole board then sent the inmate a letter, which provided notice of its decision to revoke his parole and afforded an opportunity to present evidence on his behalf. Walker v. State, 35 So.3d 555, 2010 Miss. App. LEXIS 167 (Miss. Ct. App. 2010).

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).

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).

47. – – Probation, prisons and prisoners.

Denial of the inmate’s motion for postconviction relief was appropriate because his due process rights were not violated by the failure to appoint counsel for him at his probation revocation hearing. The issues relevant to his probation revocation were not complex nor were they difficult to present; thus, the inmate had no right to counsel. Staten v. State, 967 So. 2d 678, 2007 Miss. App. LEXIS 729 (Miss. Ct. App. 2007), cert. denied, 984 So. 2d 277, 2008 Miss. LEXIS 294 (Miss. 2008).

Denial of the inmate’s petition for post-conviction relief was proper where his due process rights were not violated by the reference to a probation violation with which he was not charged because the revocation of his probation was clearly based upon a finding that he had failed to avoid persons or places of disreputable or harmful character by remaining in a place where marijuana was being used. Hubbard v. State, 919 So. 2d 1022, 2005 Miss. App. LEXIS 462 (Miss. Ct. App. 2005).

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). But see 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). But see Smith v. State, 742 So. 2d 1146, 1999 Miss. LEXIS 260 (Miss. 1999).

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).

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 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. Riely v. State, 562 So. 2d 1206, 1990 Miss. LEXIS 240 (Miss. 1990); Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484, 1972 U.S. LEXIS 19 (U.S. 1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656, 1973 U.S. LEXIS 70 (U.S. 1973).

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).

48. – – Transfer, prisons and prisoners.

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).

49. – – Visitation rights, prisons and prisoners.

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).

50. Penalties and forfeitures–In general.

Read literally, §§49-7-251 to49-7-257 violate the Mississippi Constitution’s due process guarantee, and therefore the statutes would be construed to include an exception for “innocent owners.” Threlkeld v. State, 586 So. 2d 756, 1991 Miss. LEXIS 533 (Miss. 1991).

51. – – Attorney fees, penalties and forfeitures.

A statute imposing a penalty of an attorney’s fee on certain class and not on all for failure to pay employee, violates this section. Sorenson v. Webb, 111 Miss. 87, 71 So. 273, 1916 Miss. LEXIS 245 (Miss. 1916).

As to the right to impose penalties and counsel fees on depositories for failure to pay on demand see Fidelity & Deposit Co. v. Wilkinson County, 109 Miss. 879, 69 So. 865, 1915 Miss. LEXIS 237 (Miss. 1915).

52. – – Prisons and prisoners, penalties and forfeitures.

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).

53. – – Liquor offenses, penalties and forfeitures.

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).

It is constitutional to give the chancery courts jurisdiction of suits for penalties for violations of liquor laws. State ex rel. Attorney Gen. v. Marshall, 100 Miss. 626, 56 So. 792, 1911 Miss. LEXIS 64 (Miss. 1911).

54. Racial discrimination.

Peremptory strike was not race-neutral because, in requesting the strike, counsel argued that he wished to strike the juror because she was Baptist; however, counsel did not strike another juror who was also Baptist and white, and the juror was not questioned about her religion and whether that would impair her ability to be an impartial juror. Wilson v. Strickland, 953 So. 2d 306, 2007 Miss. App. LEXIS 193 (Miss. Ct. App. 2007).

The statutes of the state authorizing consolidated schools do not discriminate between the white and colored races. Barrett v. Cedar Hill Consol. School Dist., 123 Miss. 370, 85 So. 125, 1920 Miss. LEXIS 33 (Miss. 1920).

It was held that the statute requiring railroads to provide equal separate Pullman accommodations for the white and colored races is not violative of this section. Southern R. Co. v. Norton, 112 Miss. 302, 73 So. 1, 1916 Miss. LEXIS 108 (Miss. 1916).

The board of supervisors by intentionally leaving names of qualified negroes off the jury list violates this section. Farrow v. State, 91 Miss. 509, 45 So. 619, 1907 Miss. LEXIS 130 (Miss. 1907).

55. Public improvements and highways.

Individual citizen has no due process right under Mississippi Constitution to reasonable advance notice and opportunity to be heard before legislative action is taken establishing policy to undertake substantial public improvements and to finance same via bond issue. In re Validation of $7,800,000 Combined Utility System Revenue Bond, etc., 465 So. 2d 1003, 1985 Miss. LEXIS 1939 (Miss. 1985).

Subsequent to bond validation decree becoming final, taxpayer may not be heard to complain of legality or constitutionality of facet of bond issue or project to be funded which could have been presented and fully heard at bond validation hearing; however, that which could not have been presented (because of limited scope of hearing or whatever) may not be precluded from subsequent litigation consistent with due process. In re Validation of $7,800,000 Combined Utility System Revenue Bond, etc., 465 So. 2d 1003, 1985 Miss. LEXIS 1939 (Miss. 1985).

Chapter 176, Laws of 1914, providing for elections to issue highway bonds does not deprive of property without due process of law. Prather v. Googe, 108 Miss. 670, 67 So. 156, 1914 Miss. LEXIS 259 (Miss. 1914).

56. Use of property–In general.

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).

A statute authorizing public utilities to enter on lands to make a preliminary examination and survey with a view to condemnation, subject to liability for any damage done, does not violate this provision. Wood v. Mississippi Power Co., 245 Miss. 103, 146 So. 2d 546, 1962 Miss. LEXIS 536 (Miss. 1962).

57. – – Zoning laws, use of property.

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).

City acted arbitrarily and capriciously in adopting a resolution prohibiting the replacement of mobile homes on vacated pads in a mobile home park where Richland, Miss., Ordinance § 405.1 was reasonably interpreted to construe the nonconforming use to relate to the mobile-home park as a whole, and the resolution expanding the ordinance deprived the owner of his constitutional right to enjoy his property. Cleveland MHC, LLC v. City of Richland, 163 So.3d 302, 2014 Miss. App. LEXIS 442 (Miss. Ct. App. 2014), aff'd, 163 So.3d 284, 2015 Miss. LEXIS 230 (Miss. 2015).

Where the building inspector granted the ice company permits for an ice dispenser, the city’s action in applying for a variance and overturning the decision to grant the permit were arbitrary and capricious and violated the company’s due process rights under the United States Constitution and the Mississippi Constitution. No notice of the hearing was given to the company. City of Petal v. Dixie Peanut Co., 994 So. 2d 835, 2008 Miss. App. LEXIS 318 (Miss. Ct. App.), cert. dismissed, 998 So. 2d 1010, 2008 Miss. LEXIS 683 (Miss. 2008).

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).

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 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).

Although a zoning ordinance enacted under ch 198, Laws 1944, amending ch 448, Laws 1938, a rural zoning statute, may be valid in its general aspects, when applied to a particular area or piece of property and a particular set of facts, the ordinance is so arbitrary and unreasonable as to result in confiscation, the ordinance is void as applied to the particular property or area. Frederic v. Board of Sup'rs, 197 Miss. 293, 20 So. 2d 92, 1944 Miss. LEXIS 300 (Miss. 1944).

A rural zoning ordinance enacted under Laws 1944, chapter 198, amending Laws 1938, chapter 448, to be valid, must comply with constitutional requirements that private property shall not be taken or damaged for public use without compensation, and that no person shall be deprived of property except by due process of law. Frederic v. Board of Sup'rs, 197 Miss. 293, 20 So. 2d 92, 1944 Miss. LEXIS 300 (Miss. 1944).

Rural zoning ordinance, enacted under Laws 1944, ch 198, amending Laws 1938, ch 448, acquires no facility to avoid constitutional guaranties (that private property shall not be taken or damaged for public use without compensation and that no person shall be deprived of property except by due process of law) by the mere device of giving it a name, or by coupling it with a commendatory preamble. Frederic v. Board of Sup'rs, 197 Miss. 293, 20 So. 2d 92, 1944 Miss. LEXIS 300 (Miss. 1944).

The effect of an ordinance forbidding the erection of any house, etc., between the road or street of a municipality and the sea without obtaining a special permit therefor, and declaring any such house, etc., a nuisance, was to deprive owners of property of its lawful use without just compensation being first made. Quintini v. Mayor, etc. of Bay St. Louis, 64 Miss. 483, 1 So. 625, 1886 Miss. LEXIS 96 (Miss. 1886).

58. Eminent domain.

Because contestants never raised their takings argument before the Mississippi Oil and Gas Board or on appeal, the claim was procedurally barred. Adams v. Miss. State Oil & Gas Bd., 139 So.3d 58, 2014 Miss. LEXIS 121 (Miss. 2014).

Regardless of the adequacy of the post-deprivation remedies in §65-1-301, the statute must provide a predeprivation hearing before taking property; because it does not provide for such a pre-deprivation hearing, §§65-1-301 to65-1-347 are unconstitutional as violative of procedural due process. Lemon v. Mississippi Transp. Comm'n, 735 So. 2d 1013, 1999 Miss. LEXIS 117 (Miss. 1999).

Owner/developer of a rundown apartment complex did not suffer violations of its right to due process because the owner/developer did not have property interests via contractual rights in the Moderate Rehabilitation Contract or the Annual Contribution Contract at issue and therefore could not have been deprived of the contracts without due process. Urban Developers LLC v. City of Jackson, 468 F.3d 281, 2006 U.S. App. LEXIS 26435 (5th Cir. Miss. 2006).

59. Negligence and contributory negligence.

The legislature is not prohibited from changing the common law rule with reference to contributory negligence being a defense. Hines v. McCullers, 121 Miss. 666, 83 So. 734, 1920 Miss. LEXIS 112 (Miss. 1920).

The legislature may by statute provide that injuries caused by the running of trains is prima facie evidence of negligence on part of railroad company. New Orleans, M. & C. R. Co. v. Cole, 101 Miss. 173, 57 So. 556, 1911 Miss. LEXIS 117 (Miss. 1911).

The contributory negligence statute is not violative of this section. Natchez & S. R. Co. v. Crawford, 99 Miss. 697, 55 So. 596, 1911 Miss. LEXIS 240 (Miss. 1911).

60. Animal legislation.

Neither livestock sanitary board nor its officers have right to seize cattle without process of law and charge owner with costs of dipping them for eradication of ticks; officers of livestock sanitary board seizing cattle without legal process are liable to owner for damages. D'Aquilla v. Anderson, 153 Miss. 549, 120 So. 434, 1929 Miss. LEXIS 9 (Miss. 1929).

Chapter 38, Ex Session Laws of 1917, requiring counties to pay owners of cattle injured in dipping is not violative of this section. Hancock County v. Shaw, 120 Miss. 48, 81 So. 647, 1919 Miss. LEXIS 60 (Miss. 1919).

It is lawful for the state board of health to provide for examination of cows used in dairy business. Hawkins v. Hoye, 108 Miss. 282, 66 So. 741, 1914 Miss. LEXIS 201 (Miss. 1914).

The statute regulating and restricting the capture of creatures ferae naturae not reduced to actual possession is not violative of this section. Ex parte Fritz, 86 Miss. 210, 38 So. 722, 1905 Miss. LEXIS 75 (Miss. 1905).

A municipal ordinance authorizing the killing of unmuzzled dogs running at large is not invalid. Illinois C. R. Co. v. Peterson, 68 Miss. 454, 10 So. 43, 1891 Miss. LEXIS 33 (Miss. 1891).

61. Political parties and elections.

Primary claim advanced by plaintiff in state court action, that voting malapportionment which allegedly violated one-person, one-vote guaranteed by Article 3, Section 14, was sufficient to stand as independent ground for challenging election procedure, and federal issue under Voting Rights Act could collaterally attach to such claim. Republican Party of Adams County v. Adams County Election Com., 775 F. Supp. 978, 1991 U.S. Dist. LEXIS 15410 (S.D. Miss. 1991).

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).

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).

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).

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).

62. Regulation of business and professions – In general.

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).

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).

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).

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).

Due process does not require allocation of permissible production on the basis of the productivity of each well instead of upon a surface acreage basis. Barnwell, Inc. v. Sun Oil Co., 249 Miss. 398, 162 So. 2d 635, 1964 Miss. LEXIS 402 (Miss. 1964).

Code 1942, § 1108, known as “Fair Trade Act,” permitting producer, manufacturer or owner to contract with retailer as to resale price of his own product which is in fair and open competition with commodities of same general class produced by others, does not violate this section. W. A. Sheaffer Pen Co. v. Barrett, 209 Miss. 1, 45 So. 2d 838, 1950 Miss. LEXIS 357 (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).

Ordinance and statute prohibiting auction sales by jewelers between certain hours held not to violate due-process clause and equality clause. Matheny v. Simmons, 165 Miss. 429, 139 So. 172, 1932 Miss. LEXIS 261 (Miss. 1932).

Statute forbidding unlawful combinations of cotton ginners does not contravene due process clause. State ex rel. Jordon v. Gilmer Grocery Co., 156 Miss. 99, 125 So. 710, 1930 Miss. LEXIS 151 (Miss. 1930).

The “bulk sales statute” is constitutional. Wm. R. Moore Dry Goods Co. v. Rowe & Carithers, 97 Miss. 775, 53 So. 626, 1910 Miss. LEXIS 312 (Miss. 1910).; Phillipps & Buttorff Mfg. Co. v. Perkins & Elmore, 53 So. 628 (Miss. 1910).

Pool rooms legalized by statute cannot be prohibited by municipal ordinance. Crittenden v. Booneville, 92 Miss. 277, 45 So. 723, 1908 Miss. LEXIS 177 (Miss. 1908).

63. – – Accountants and tax preparers, regulation of business and professions.

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 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).

64. – – Attorneys, regulation of business and professions.

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 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).

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 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).

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).

65. – – Banks and banking, regulation of business and professions.

State bank guaranty statute authorizing issuance of noninterest-bearing certificates held not invalid as depriving holder of certificate of deposit, to interest-bearing guaranty certificate under earlier statute, of vested right. Love v. Mangum, 160 Miss. 590, 135 So. 223, 1931 Miss. LEXIS 227 (Miss. 1931).

66. – – Education, regulation of business and professions.

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).

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 Act 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 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).

67. – – Insurance, regulation of business and professions.

If it be said that the legislature by reenacting a statute making persons carrying on certain activities for an insurance company agents of the company 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, such statute, 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).

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 defense of agency. Wilkinson v. Goza, 165 Miss. 38, 145 So. 91, 1932 Miss. LEXIS 300 (Miss. 1932).

68. – – Physicians, regulation of business and professions.

Physician, who was licensed and occasionally practiced medicine in Mississippi, and a medical clinic, which had an office and rented timeshare office space in Mississippi, subjected themselves to suit under the clear terms of the long-arm statute, Miss. Code Ann. §13-3-57, by doing business in the state. Considering the interests of Mississippi in providing a forum for legal redress for residents who were negligently injured by out-of-state physicians, the court found that the circuit court’s assumption of personal jurisdiction over the physician comported with traditional notions of fair play and substantial justice and did not offend U.S. Const. Amend. XIV. Estate of Jones v. Phillips, 992 So. 2d 1131, 2008 Miss. LEXIS 420 (Miss. 2008).

Pediatrician was afforded due process upon the suspension of her hospital privileges in the area of neonatal resuscitation. The pediatrician was given the opportunity to appear at the review hearing, to submit evidence, and to review documents supporting the hospital’s decision. Warnick v. Natchez Cmty. Hosp., Inc., 904 So. 2d 1019, 2004 Miss. LEXIS 1409 (Miss. 2004).

The waiver of opening statements in a proceeding before the Board of Medical Licensure did not violate due process. McFadden v. Mississippi State Bd. of Med. Licensure, 735 So. 2d 145, 1999 Miss. LEXIS 64 (Miss. 1999).

The fact that the Board of Medical Licensure performed both investigative and adjudicative functions did not violate due process. McFadden v. Mississippi State Bd. of Med. Licensure, 735 So. 2d 145, 1999 Miss. LEXIS 64 (Miss. 1999).

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).

A physician may be required to be examined and secure license before he practices medicine. State v. Tucker, 102 Miss. 517, 59 So. 826, 1912 Miss. LEXIS 82 (Miss. 1912).

69. – – Utilities, regulation of business and professions.

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).

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).

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).

No impairment of contract rights results from denying to a utility having an exclusive municipal franchise and street lighting contract the right to extend its service into annexed territory which is part of the certificated area of another utility. Capital Electric Power Asso. v. Mississippi Power & Light Co., 250 Miss. 514, 150 So. 2d 534, 1963 Miss. LEXIS 538 (Miss.), cert. denied, 375 U.S. 77, 84 S. Ct. 196, 11 L. Ed. 2d 142, 1963 U.S. LEXIS 237 (U.S. 1963).

No impairment of contract obligation is involved in holding that a utility may continue to serve a portion of its certificated area after its annexation to a city, as against a utility having an exclusive franchise. Delta Electric Power Asso. v. Mississippi Power & Light Co., 250 Miss. 482, 149 So. 2d 504, 1963 Miss. LEXIS 537 (Miss.), cert. denied, 375 U.S. 77, 84 S. Ct. 196, 11 L. Ed. 2d 142, 1963 U.S. LEXIS 237 (U.S. 1963).

70. – – Price control, regulation of business and professions.

The provision for the fixing of prices by the Milk Control Act of 1960, being a valid exercise of the police power, does not violate this provision. Mississippi Milk Com. v. Vance, 240 Miss. 814, 129 So. 2d 642, 1961 Miss. LEXIS 515 (Miss. 1961).

71. – – Taxis, regulation of business and professions.

Permit to operate taxicabs in city constitutes a permit to do that which would otherwise be unlawful; and, being a mere personal privilege, it is revocable for due cause and is not a vested, or property right in a constitutional sense. Allen v. Kosciusko, 207 Miss. 343, 42 So. 2d 388, 1949 Miss. LEXIS 346 (Miss. 1949).

Operator of fleet of taxicabs could not challenge constitutionality of ordinance revoking all taxicab permits and establishing new permit requirements, passed subsequent to revocation of his license without notice and hearing, where he did not apply for a permit under the new ordinance and, therefore, was unaffected thereby. Allen v. Kosciusko, 207 Miss. 343, 42 So. 2d 388, 1949 Miss. LEXIS 346 (Miss. 1949).

72. – – Railroads, regulation of business and professions.

An ordinance requiring railroads to light their crossings is not confiscatory and unreasonable where it applies only to main lines, and not to spurs, side tracks and switch tracks. Illinois C. R. Co. v. Williams, 242 Miss. 586, 135 So. 2d 831, 1961 Miss. LEXIS 595 (Miss. 1961).

State may lawfully require interstate railroad to abolish at own expense highway grade crossings, 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).

Chapter 88 Laws of 1908 authorizing railroad commission to require spur tracks violates this section. McInnis v. New Orleans & N. E. R. Co., 109 Miss. 482, 68 So. 481, 1915 Miss. LEXIS 182 (Miss. 1915).

The railroad commission cannot require physical connection of two railroads. Mississippi R. R. Com. v. Yazoo & M. V. R. Co., 100 Miss. 595, 56 So. 668, 1911 Miss. LEXIS 59 (Miss. 1911).

As to legislative power to require railroads to maintain depot in every incorporated village through which road passes see Southern R. Co. v. State, 95 Miss. 657, 48 So. 236, 1909 Miss. LEXIS 200 (Miss. 1909).

As to vested rights of the railroad company by charter see Alabama & V. R. Co. v. King, 93 Miss. 379, 47 So. 857, 1908 Miss. LEXIS 162 (Miss. 1908).

It is lawful by statute to make bills of lading conclusive evidence of receipt of property. Yazoo & M. V. R. Co. v. G. W. Bent & Co., 94 Miss. 681, 47 So. 805, 1909 Miss. LEXIS 331 (Miss. 1909).

Section 3555 of the Code of 1892 (Code 1906 § 4053), though applying to railroads constructed before its passage, does not infringe this section. Illinois C. R. Co. v. Copiah County, 81 Miss. 685, 33 So. 502, 1902 Miss. LEXIS 196 (Miss. 1902).

As to right to require railroad companies to maintain cattle guards see Kansas C., M. & B. R. Co. v. Spencer, 72 Miss. 491, 17 So. 168, 1894 Miss. LEXIS 130 (Miss. 1894); Illinois C. R. Co. v. Copiah County, 81 Miss. 685, 33 So. 502, 1902 Miss. LEXIS 196 (Miss. 1902); Yazoo & M. V. R. Co. v. Harrington, 85 Miss. 366, 37 So. 1016, 1904 Miss. LEXIS 173 (Miss. 1904).

73. – – Sunday closing laws, regulation of business and professions.

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).

74. Unemployment compensation.

Statute (§71-5-513) which prohibits payment of unemployment benefits to wife who leaves employment in state to accompany husband to another state does not violate equal protection or due process. Warren v. Board of Review, 463 So. 2d 1076, 1985 Miss. LEXIS 1879 (Miss. 1985).

Denial to a union member of 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).

Determination that drug business employing six persons and dairy business employing four persons was 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).

75. 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).

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).

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).

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 Workmen’s Compensation Law is not unconstitutional because it makes no discrimination between employees who have been guilty of negligence and employees who have exercised due care or because it denies to the injured employee the right to have damages assessed by a jury according to the conventional methods of the common law. Walters v. Blackledge, 220 Miss. 485, 71 So. 2d 433, 1954 Miss. LEXIS 464 (Miss. 1954).

The Workmen’s Compensation Law is not invalid because it undertakes to put all laborers or employees in one class, or because it undertakes to compensate persons of widely differing rights, or persons of widely differing ages, or persons of widely differing responsibilities as to their families under one standard of compensation. Walters v. Blackledge, 220 Miss. 485, 71 So. 2d 433, 1954 Miss. LEXIS 464 (Miss. 1954).

The Workmen’s Compensation Law does not violate the due process provisions of the state constitution because it abrogates rights of actions for personal injuries recognized by the common law, or rights of action for personal injury in wrongful death created by statutes; or because it subjects the employer to liability for compensation to his injured employee without regard to any neglect or default on the part of the employer or any other person for whom he is responsible; or because the employee’s rights are interfered with, in that he is prevented from having compensation for injuries arising from the employer’s fault commence with the damages actually sustained, and is limited to the measure of the compensation prescribed by the act; or because both the employer and the employee are deprived of their liberty to acquire property by being prevented from making such agreement as they may choose to make respecting terms of employment. Walters v. Blackledge, 220 Miss. 485, 71 So. 2d 433, 1954 Miss. LEXIS 464 (Miss. 1954).

76. Retirement benefits.

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).

77. Sovereign immunity.

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).

78. Damages.

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).

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 legislature may authorize the guardian of an infant, or person of unsound mind, to agree upon damages to be paid for the property of the ward taken for public use. Louisville, N. O. & T. R. Co. v. Blythe, 69 Miss. 939, 11 So. 111, 1892 Miss. LEXIS 7 (Miss. 1892).

79. Education, schools and students.

Student’s due process rights were not violated where he was not afforded notice and an opportunity to be heard at a school board meeting regarding his alleged violation of the school district’s weapons policy because the student was afforded notice and an opportunity to be heard before the Appeals Committee. Due process did not require that defendant be afforded with an opportunity to be heard at every step of the student disciplinary process. Hinds County Sch. Dist. Bd. v. R.B., 10 So.3d 387, 2008 Miss. LEXIS 606 (Miss. 2008).

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).

Superintendent’s due process argument was rejected in a case arising from his dismissal because he was not required to get the notice set forth in Miss. Code Ann. §37-9-109, which covered nonrenewals, and a school district board complied with the procedures set forth in Miss. Code Ann. §37-9-59 and Miss. Code Ann. §37-9-111; moreover, even if §37-9-109 did apply to the case, the superintendent failed to avail himself of the requirements of such. Wilder v. Bd. of Trs. of the Hazlehurst City Sch. Dist., 969 So. 2d 83, 2007 Miss. App. LEXIS 253 (Miss. Ct. App.), cert. denied, 968 So. 2d 948, 2007 Miss. LEXIS 657 (Miss. 2007).

Right to minimally adequate public education created and entailed by laws of Mississippi is fundamental; as such, young citizens of state enjoy full substantive and procedural protections of due process clause of constitution of state of Mississippi. Clinton Municipal Separate School Dist. v. Byrd, 477 So. 2d 237, 1985 Miss. LEXIS 2204 (Miss. 1985).

As matter of state substantive due process, school board’s disciplinary rule or scheme is constitutionally enforceable where, fairly viewed, it furthers substantial legitimate interest of school district; authority vested in school boards consistent with constitutional limitation includes substantial discretion with respect to administration of punishment to student who violates school rule. Clinton Municipal Separate School Dist. v. Byrd, 477 So. 2d 237, 1985 Miss. LEXIS 2204 (Miss. 1985).

School bonds may be issued upon petition of a majority of qualified voters, without an election and without a notice. In re Magee Consol. School Bonds, 212 Miss. 454, 54 So. 2d 664, 1951 Miss. LEXIS 469 (Miss. 1951).

80. Landlord-tenant disputes.

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 (Miss. 1994), rehearing denied.

81. Municipal ordinances.

Clinton, Miss., Zoning Ordinance § 401.05 was unconstitutionally vague as it allegedly applied to property owners when a city attempted to enforce by having the owners remove a treehouse from their front yard because the city provided no notice to the public that it utilized the definition of “accessory structure or use” to define “accessory building or use;” according to the ordinance, an “accessory structure” could be either a “detached structure” or a “use;” there was no definition of “detached structure,” but there was a definition of “structure.” Further, the definition of use“ was vague as well. Mayor of Clinton v. Welch, 888 So. 2d 416, 2004 Miss. LEXIS 1412 (Miss. 2004).

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).

82. Miscellaneous.

Chancellor properly found that notice of the administrative was legally sufficient where the developer received a notice of intent and an opportunity for an administrative hearing. Watkins Dev., LLC v. Hosemann, 214 So.3d 1101, 2016 Miss. App. LEXIS 434 (Miss. Ct. App. 2016), aff'd in part and rev'd in part, 214 So.3d 1050, 2017 Miss. LEXIS 74 (Miss. 2017).

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).

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).

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 had been 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 the agency implemented, these being 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).

In a products liability case arising from use of a prescription drug, the trial court abused its discretion in 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).

Sale of sexual devices, or the right of access to such devices by users, is not encompassed by the constitutionally protected right of privacy; advertising of the devices, or their sale is not constitutionally protected speech. PHE, Inc. v. State, 877 So. 2d 1244, 2004 Miss. LEXIS 269 (Miss. 2004).

Section51-1-4’s 100 cubic feet per second standard for determining what constitutes a public waterway suffers no constitutional or other infirmity when scrutinized under §§ 14, 17 or 81 of the Mississippi Constitution or otherwise, or under federal law, including but not limited to the Equal Footings Doctrine and the congressional enactment of 1817 creating the State of Mississippi. Ryals v. Pigott, 580 So. 2d 1140, 1990 Miss. LEXIS 694 (Miss. 1990), cert. denied, 502 U.S. 940, 112 S. Ct. 377, 116 L. Ed. 2d 328, 1991 U.S. LEXIS 6438 (U.S. 1991).

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 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).

Absent proof of malice or ill will, the question of due process violations by the judiciary should be remedied, if necessary, by appeal or otherwise and not through disciplinary proceedings. In re Anderson, 412 So. 2d 743, 1982 Miss. LEXIS 1921 (Miss. 1982).

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 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).

Laws 1948, ch 430, § 1 amending Laws 1946, ch 363, § 6 (Code 1942, § 7146-06), providing for state aid to nonprofit hospitals under supervision by a state agency in connection with a statewide hospital plan does not violate due process requirement, since it bears a reasonable relation to a governmental purpose as expressed in § 86 of the constitution, imposing upon the legislature the duty to provide for the care of the indigent sick in the hospitals in the state. Craig v. North Mississippi Community Hospital, 206 Miss. 11, 39 So. 2d 523, 1949 Miss. LEXIS 239 (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).

Chapter 97, Acts of 1908, regulating procedure of levee board does not violate this section. Bobo v. Board of Levee Comm'rs, 92 Miss. 792, 46 So. 819, 1908 Miss. LEXIS 248 (Miss. 1908).

The section is not violated by the statute requiring a conveyance of a homestead to be made by husband and wife jointly. Lady Ensley Furnace Co. v. Rogan, 95 Ala. 594, 11 So. 188, 1891 Ala. LEXIS 385 (Ala. 1891).

83. Right to confrontation.

RESEARCH REFERENCES

ALR.

Compulsory examination for venereal disease. 2 A.L.R. 1332, 22 A.L.R. 1189.

Constitutionality of statute or ordinance providing for destruction of animals. 8 A.L.R. 67.

Constitutionality of statute regulating the time of payment of wages. 12 A.L.R. 612, 26 A.L.R. 1396.

Income tax on nonresident or foreign corporation. 15 A.L.R. 1326; 90 A.L.R. 484, 156 A.L.R. 1370.

Constitutionality of statute regulating or imposing tax or license fee upon newspapers or magazines. 35 A.L.R. 7, 110 A.L.R. 327.

Constitutionality of statute making unlawful possession of intoxicating liquor legally obtained, or providing for its confiscation. 37 A.L.R. 1386.

Asexualization or sterilization of criminals or defectives. 40 A.L.R. 535; 51 A.L.R. 862; 87 A.L.R. 242.

Constitutionality of “civil rights” legislation by state. 49 A.L.R. 505.

Constitutionality of statute relating to injunctions against crime or abatement of nuisance arising from violation of liquor law. 49 A.L.R. 635.

Constitutionality of statute against solicitation of business by or for attorney. 53 A.L.R. 279.

Constitutionality of statute or ordinance prohibiting or regulating advertising by physician, surgeon, or other person professing healing arts. 54 A.L.R. 400.

Constitutionality of statute affecting riparian rights. 56 A.L.R. 277.

Constitutionality and construction of statute enhancing penalty for second or subsequent offense. 58 A.L.R. 20; 82 A.L.R. 345; 116 A.L.R. 209; 132 A.L.R. 91; 139 A.L.R. 673.

Validity of special statute authorizing exemption of industrial concern from taxation. 64 A.L.R. 1217.

Power to extend boundaries of municipal corporations. 64 A.L.R. 1335.

Schools: free textbooks and other school supplies for individual use of pupils. 67 A.L.R. 1196.

Constitutionality of levee and flood control acts. 70 A.L.R. 1274.

Constitutionality of chain store tax. 73 A.L.R. 1481; 85 A.L.R. 736; 112 A.L.R. 305.

Validity of legislation directed against political, social, or industrial propaganda deemed to be of a dangerous tendency. 73 A.L.R. 1494.

Constitutionality of statutes or ordinances for taxation of common carriers by automobile. 75 A.L.R. 13.

State income tax on resident in respect of income earned outside the state. 87 A.L.R. 380.

Validity of so-called “sales tax.” 89 A.L.R. 1432, 110 A.L.R. 1485, 117 A.L.R. 846, 128 A.L.R. 893.

Constitutionality of statute permitting state to take or use in evidence depositions in criminal case. 90 A.L.R. 377.

Constitutionality of statutes in relation to registration before voting at election or primary. 91 A.L.R. 349.

Constitutionality and construction of state farm aid laws. 92 A.L.R. 768.

Power of municipal or school authorities to prescribe vaccination or other health measure as a condition of school attendance. 93 A.L.R. 1413.

Constitutionality of statutes providing for refund of taxes illegally or erroneously exacted. 98 A.L.R. 284.

Judicial questions regarding Federal Social Security Act or state legislation adopted in anticipation of, or after the passage of, that act, to set up “state plan” contemplated by it. 100 A.L.R. 697; 106 A.L.R. 243; 108 A.L.R. 613; 109 A.L.R. 1346; 118 A.L.R. 1220; 121 A.L.R. 1002.

Failure of advertisement in judicial proceeding for sale of land for delinquent taxes or foreclosure of tax lien, to describe lands affected, as contrary to due process of law or other constitutional objection. 107 A.L.R. 285.

Regulation of use of highway by private motor vehicles for hire. 109 A.L.R. 550.

Power to detach land from municipal corporations, towns, or villages. 117 A.L.R. 267.

Constitutionality of regulations as to milk. 119 A.L.R. 243, 155 A.L.R. 1383.

Validity of statutory or municipal regulation of soliciting of alms or contributions for charitable, religious, or individual purposes. 128 A.L.R. 1361, 130 A.L.R. 1504.

Constitutionality, construction, and application of general use tax or other compensating tax designed to complement state sales tax. 129 A.L.R. 222, 153 A.L.R. 609.

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.

Garage as part of house with which it is physically connected within zoning regulations or restrictive covenant. 7 A.L.R.2d 593.

Zoning based on size of commercial or industrial enterprises or units. 7 A.L.R.2d 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, taxicabs or hack stands. 8 A.L.R.2d 574.

Validity of building height regulations. 8 A.L.R.2d 963.

Exclusion from municipality of industrial activities inconsistent with residential character. 9 A.L.R.2d 683.

Zoning: change in ownership of nonconforming business or use as affecting right to continuance thereof. 9 A.L.R.2d 1039.

Constitutionality, construction, and application of statutory provisions respecting persons who may prepare tax returns for others. 10 A.L.R.2d 1443.

Validity and construction of regulations as to subdivision maps or plats. 11 A.L.R.2d 524.

Constitutionality, construction, and application of statute relating to dental hygienists. 11 A.L.R.2d 724.

Validity of minimum wage statutes relating to private employment. 39 A.L.R.2d 740.

Validity of statutes, ordinances, or regulations for protection of vegetation against disease or infection. 70 A.L.R.2d 852.

Validity and construction of “right-to-work” laws. 92 A.L.R.2d 598.

Validity of statutory classifications based on population–government employee salary or pension statutes. 96 A.L.R.3d 538.

Validity of statutory classifications based on population–jury selection statutes. 97 A.L.R.3d 434.

Validity of statutory classifications based on population–zoning, building, and land use statutes. 98 A.L.R.3d 679.

Validity of statutory classifications based on population–tax statutes. 98 A.L.R.3d 1083.

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

What constitutes illegal discrimination under state statutory prohibition against discrimination in housing accommodations on account of marital status. 33 A.L.R.4th 964.

Admissibility, in criminal case, of physical evidence obtained without consent by surgical removal from person’s body. 41 A.L.R.4th 60.

Exclusion of public and media from voir dire examination of prospective jurors in state criminal case. 16 A.L.R.5th 152.

Gestures, facial expressions, or other nonverbal communication of trial judge in criminal case as ground for relief. 45 A.L.R.5th 531.

Coercive conduct by private person as affecting admissibility of confession under state statutes or constitutional provisions–post-Connelly cases. 48 A.L.R.5th 555.

Duty of prosecutor to present exculpatory evidence to state grand jury. 49 A.L.R.5th 639.

Disqualification of judge for bias against counsel for litigant. 54 A.L.R.5th 575.

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.

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.

Failure of state prosecutor to disclose existence of plea bargain or other deals with witness as violating due process. 12 A.L.R.6th 267.

Double Jeopardy Considerations in State Criminal Cases – Supreme Court Cases. 77 A.L.R. Fed. 2d 477.

Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Guilty Pleas - Coercion or Duress. 19 A.L.R.6th 411.

Failure of State Prosecutor to Disclose Exculpatory Tape Recorded Evidence as Violating Due Process. 24 A.L.R.6th 1.

What Constitutes “Custodial Interrogation” at Hospital by Police Officer Within Rule of Miranda v. Arizona Requiring That Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation - Suspect Injured or Taken Ill. 25 A.L.R.6th 379.

What Constitutes ‘Custodial Interrogation‘ of Juvenile by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of Federal Constitutional Rights Before Custodial Interrogation - At Police Station or Sheriff’s Office. 26 A.L.R.6th 451.

When Does Use of Taser Constitute Violation of Constitutional Rights. 45 A.L.R.6th 1.

Class-of-One Equal Protection Claims Based Upon Real Estate Development, Zoning, and Planning. 68 A.L.R.6th 389.

Construction and Application of Parratt-Hudson Doctrine, Providing That Where Deprivation of Property Interest Is Occasioned by Random and Unauthorized Conduct of State Officials, Procedural Due Process Inquiry Is Limited to Issue of Adequacy of Postdeprivation Remedies Provided by State. 89 A.L.R.6th 1.

School’s Violation of Student’s Substantive Due Process Rights by Suspending or Expelling Student. 90 A.L.R.6th 235.

Right of action under Title IX of Education Amendments Act of 1972 (20 USCS §§ 1681 et seq.) against school or school district for sexual harassment of student by student’s peer. 141 A.L.R. Fed. 407.

Equal protection and due process clause challenges based on racial discrimination – Supreme Court cases. 172 A.L.R. Fed. 1.

Equal protection and due process clause challenges based on sex discrimination – Supreme Court cases. 178 A.L.R. Fed. 25.

Forcible administration of antipsychotic medication to pretrial detainees – Federal cases. 188 A.L.R. Fed. 285.

Am. Jur.

16A Am. Jur. 2d, Constitutional Law §§ 586, 588 et seq.

CJS.

C.J.S. Constitutional Law §§ 455 to 518, 540, 557, 576 to 596, 612 to 618, 704, 883, 945 to 1427.

C.J.S. Right to Die § 2.

Lawyers’ Edition.

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.

Regulation of hotel, motel, or similar lodging establishment as violating due process clause or equal protection clause of Federal Constitution – Supreme Court cases. 107 L. Ed. 2d 1151.

Law Reviews.

1984 Mississippi Supreme Court Review: Wills and Estates. 55 Miss L. J. 120, March, 1985.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond. 56 Miss L. J. 73, April, 1986.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

JUDICIAL DECISIONS

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 involuntary 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).

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 never actually performed any act as an informant. Poole v. State, 862 So. 2d 1285, 2004 Miss. App. LEXIS 26 (Miss. Ct. App. 2004).

Law relating to hiring renter or laborer having contracted with another must be construed consistently with this section. Hill v. Duckworth, 155 Miss. 484, 124 So. 641, 1929 Miss. LEXIS 315 (Miss. 1929).

Statute punishing any laborer, renter or share cropper who should leave his employer or leased premises before the expiration of his contract, without the consent of the employer or landlord, and who should enter into a second contract without giving notice of the first contract, was unconstitutional under this section. State v. Armstead, 103 Miss. 790, 60 So. 778, 1912 Miss. LEXIS 231 (Miss. 1912).

RESEARCH REFERENCES

ALR.

Constitutionality of statute requiring persons, regardless of financial condition, to engage in some business, profession, occupation, or employment. 9 A.L.R. 1366.

Injunction against strike as violating constitutional provision against involuntary servitude. 46 A.L.R. 1541.

Selective Training and Service Act. 129 A.L.R. 1171; 147 A.L.R. 1313; 148 A.L.R. 1388; 149 A.L.R. 1457; 150 A.L.R. 1420; 151 A.L.R. 1456; 152 A.L.R. 1452; 153 A.L.R. 1422; 154 A.L.R. 1448; 155 A.L.R. 1452; 156 A.L.R. 1450; 157 A.L.R. 1450; 158 A.L.R. 1450.

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.

Application of Section 1 of 13th Amendment to United States Constitution, U.S. Const. Amend. XIII, 1, Prohibiting Slavery and Involuntary Servitude – Labor Required as Punishment for Crime. 87 A.L.R.6th 109.

Application of Section 1 of 13th Amendment to United States Constitution, U.S. Const. Amend. XIII, 1, Prohibiting Slavery and Involuntary Servitude – Labor Required by Law or Force Not as Punishment for Crime. 88 A.L.R.6th 203.

CJS.

C.J.S. Constitutional Law §§ 482 to 486.

Law Reviews.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond, 56 Miss L. J. 73, April, 1986.

JUDICIAL DECISIONS

1. In general.

2. Construction with other constitutional provisions.

3. Construction with Federal Constitution.

4. Ex post facto laws–In general.

5. – – Death penalty cases, ex post facto laws.

6. – – Drugs and alcohol, ex post facto laws.

7. – – Filiation or paternity, ex post facto laws.

8. – – Robbery, ex post facto laws.

9. – Aggravated assault, ex post facto laws.

10. – – Probation or parole, ex post facto laws.

11. – – Usury, ex post facto laws.

12. – – Taxes and monetary penalties, ex post facto laws.

13. Contracts within constitutional protection – In general.

14. – – Marriage and marital property, contracts within constitutional protection.

15. – – Transportation, contracts within constitutional protection.

16. – – Wages and salaries, contracts within constitutional protection.

17. Impairment of obligation of contract–In general.

18. – – Banks and banking, impairment of obligation of contract.

19. – – Game and fish laws, impairment of obligation of contract.

20. – – Jury trial, impairment of obligation of contract.

21. – – Mortgage and foreclosure sales, impairment of obligation of contract.

22. – – Retirement benefits, impairment or obligation of contract.

23. – – Taxes, impairment of obligation of contract.

24. – – Workers compensation laws, impairment of obligation of contract.

25. – – Utilities, impairment of obligation of contract.

26. Impairment of obligation of contract.

1. In general.

Where the attorneys in fact entered into a contract of employment with an attorney to pursue a personal injury claim on the ward’s behalf, and the attorney, primarily out of caution, later submitted a proposed settlement to the chancery court for approval, the chancery court abused its discretion in reducing the lawyer’s fee from a 40 percent contingency fee as provided in the contract to a 33 1/3 percent contingency fee. The contract was not one entered into pursuant to a traditional probate matter and it was not a contract within the parameters of Miss. Unif. Ch. Ct. R. 6.12; the practical effect of the chancellor’s decision, upheld by the court of appeals, was a judicial abrogation of the provisions of the Uniform Durable Power of Attorney Act found in Miss. Code Ann. §§87-3-101 through87-3-113 and it also constituted a failure to uphold Miss. Const. art. 3, § 16 and U.S. Const. Art. 1, § 10, cl. 1, which prohibited the impairment of obligations of contracts. In re Savell v. Renfroe, 876 So. 2d 308, 2004 Miss. LEXIS 800 (Miss. 2004).

Vested rights cannot be destroyed by the legislature creating a new cause of action nor can it destroy a valid defense to an existing cause of action. Richards v. City Lumber Co., 101 Miss. 678, 57 So. 977, 1911 Miss. LEXIS 142 (Miss. 1911).

2. Construction with other constitutional provisions.

The contract clause is of equal dignity and must be read along with Const. § 179. Southern Bell Tel. & Tel. Co. v. Meridian, 241 Miss. 678, 131 So. 2d 666, 1961 Miss. LEXIS 385 (Miss. 1961).

3. Construction with Federal Constitution.

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).

Supreme Court will not declare that Act, which does not contravene contract clause of Federal Constitution, does violate identical provision of State Constitution unless compelled to do so by reason of prior decisions of State court construing such provision. Wilson Banking Co. Liquidating Corp. v. Colvard, 172 Miss. 804, 161 So. 123, 1935 Miss. LEXIS 173 (Miss. 1935).

The Fourteenth Amendment to the Federal Constitution and the law of the land guarantees the right to make contracts pertaining to business. Jones v. Mississippi Farms Co., 116 Miss. 295, 76 So. 880, 1917 Miss. LEXIS 308 (Miss. 1917).

4. Ex post facto laws–In general.

Defendant’s manslaughter sentence was an ex post facto violation because (1) the maximum sentence was 20 years when the crime was committed, but a statutory revision providing a maximum 30-year sentence was applied, and (2) the longer sentence was not ameliorative. Cozart v. State, 226 So.3d 574, 2017 Miss. LEXIS 210 (Miss. 2017).

Defendant’s enhanced sentence as a violent habitual offender based, in part, on a statute classifying defendant’s prior burglary of a dwelling conviction as a violent crime that was enacted after defendant committed that crime, was not an ex post facto violation because the sentence was imposed for defendant’s latest crime, which was aggravated due to being repetitive. Miller v. State, 225 So.3d 12, 2017 Miss. App. LEXIS 246 (Miss. Ct. App. 2017).

Court of appeals declined to find that the sex-offender-registration statutory scheme violated the Ex Post Facto Clause because there was no intervening decision by either the United States Supreme Court or Mississippi Supreme Court. Williams v. State, 161 So.3d 1124, 2015 Miss. App. LEXIS 197 (Miss. Ct. App. 2015).

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).

§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).

This provision relates exclusively to criminal or penal statutes. Dunn v. Grisham, 250 Miss. 74, 157 So. 2d 766, 1963 Miss. LEXIS 536 (Miss. 1963).

A constitutional amendment authorizing a recovery for property damaged applies to railroad companies in operation before the adoption of the amendment. Alabama & V. R. Co. v. King, 93 Miss. 379, 47 So. 857, 1908 Miss. LEXIS 162 (Miss. 1908).

An indictment cannot be predicated on an offense committed prior to its enactment. Barton v. State, 94 Miss. 375, 47 So. 521, 1908 Miss. LEXIS 12 (Miss. 1908).

A law is not ex post facto which modifies the rigor of the criminal law. McGuire v. State, 76 Miss. 504, 25 So. 495, 1898 Miss. LEXIS 148 (Miss. 1898).

If two things conjointly constitute a crime and the legislature makes each an offense the later act can, under this section, operate only prospectively. State v. Gillis, 75 Miss. 331, 24 So. 25, 1897 Miss. LEXIS 149 (Miss. 1897).

A statute amending a criminal law which precludes a defense available under the former law is, as to crimes committed before the amendment, ex post facto; and so is one changing, but not mitigating, the punishment previously prescribed. Lindsey v. State, 65 Miss. 542, 5 So. 99, 1888 Miss. LEXIS 41 (Miss. 1888).

A statute, passed after suit brought but before verdict denying costs, not applied. Gayden v. Bates, 1 Miss. 209, 1825 Miss. LEXIS 6 (Miss. 1825).

5. – – Death penalty cases, ex post facto laws.

Circuit court did not err in resentencing defendant to serve a sentence of life without the possibility of parole pursuant to Miss. Code Ann. §99-19-107 after vacating his death sentence because it correctly applied §99-19-107 in resentencing defendant, and since defendant’s death penalty was found unconstitutional by the United States Supreme Court’s ruling in Atkins, the application of § 99-19-107 was appropriate; the statute clearly states that no one whose death penalty was ruled unconstitutional can receive life with parole, and the application of the statute in no way constitutes an ex post facto punishment in violation of Miss. Const. art. 3, § 16 and U.S. Const. art. I, § 10. Neal v. State, 27 So.3d 460, 2009 Miss. App. LEXIS 774 (Miss. Ct. App. 2009).

Appellant’s motion for post-conviction relief was properly denied as untimely filed because appellant’s sentence of life without parole, under Miss. Code Ann. §97-3-21, following his plea of guilty to capital murder, did not violate his constitutional right against ex post facto application of the law because (1) the Supreme Court of Mississippi previously held that the imposition of the new sentencing option of life without parole did not violate the prohibition against ex post facto laws, and (2) sentencing under Miss. Code Ann. §97-3-21 clearly and lawfully directed capital defendants whose pretrial, trial, or resentencing proceedings took place after July 1, 1994, to have their sentencing juries given the option of life without parole in addition to life with the possibility of parole and death. Randall v. State, 987 So. 2d 453, 2008 Miss. App. LEXIS 110 (Miss. Ct. App. 2008).

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).

Retroactive application of statute granting Supreme Court authority in its review of death penalty cases to reweigh aggravating and mitigating circumstances and to conduct harmless error analysis is violation of state constitutional provisions against ex post facto law. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 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).

Where a new statute 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 enactment. 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).

A statute providing that juries in capital cases may fix the punishment at imprisonment for life in the penitentiary is not ex post facto, even in its application to offenses committed before its passage and when the death penalty was fixed by law. McGuire v. State, 76 Miss. 504, 25 So. 495, 1898 Miss. LEXIS 148 (Miss. 1898).

6. – – Drugs and alcohol, ex post facto laws.

Trial court erred in summarily dismissing an inmate’s petition seeking trusty status; since the record lacked sufficient factual findings to determine whether the application of Miss. Code Ann. §47-5-138.1 to the inmate constituted an ex post facto violation, resolution of this issue required an evidentiary hearing. Horton v. Epps, 20 So.3d 24, 2009 Miss. App. LEXIS 210 (Miss. Ct. App. 2009).

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).

Where the sale of marijuana for which appellant was convicted occurred when the maximum penalty for such sale was four years imprisonment or a fine of two thousand dollars, or both, the trial court erred in sentencing appellant to a term of ten years and fining him five thousand dollars under the provisions of Code 1972, §41-29-139, which did not become effective until after the 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).

Indictment for possession of still in December, 1923, held defective for failure to negative statutory exceptions. State v. Clark, 145 Miss. 207, 110 So. 447, 1926 Miss. LEXIS 15 (Miss. 1926).

7. – – Filiation or paternity, ex post facto laws.

The prohibition of ex post facto laws does not preclude the application of a statute providing for filiation proceedings in the case of a child born before its effective date. Dunn v. Grisham, 250 Miss. 74, 157 So. 2d 766, 1963 Miss. LEXIS 536 (Miss. 1963).

8. – – Robbery, ex post facto laws.

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).

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).

9. – Aggravated assault, ex post facto laws.

Defendant’s enhanced sentences for his convictions of aggravated assault on law enforcement officers were inappropriate because he should have been sentenced under Miss. Code Ann. §97-37-37(1), which became effective on July 1, 2004, and which was in effect at the time his crime was committed. Instead, he was sentenced under Miss. Code Ann. §97-37-37(2), which was not in effect at the time his crime was committed. Mayers v. State, 42 So.3d 33, 2010 Miss. App. LEXIS 88 (Miss. Ct. App.), cert. denied, 42 So.3d 24, 2010 Miss. LEXIS 437 (Miss. 2010).

10. – – Probation or parole, ex post facto laws.

Trial court did not err in upholding the decision of the Mississippi Department of Corrections (MDOC) to deny an inmate trusty status because the MDOC, pursuant to Miss. Code Ann. §47-7-3(2), stopped applying trusty time to reduce an offender’s parole eligibility date, and the MDOC’s decision to change its application of the trusty-time policy was not an ex post facto application of the law as to defendant; therefore, the inmate’s placement into trusty status would not reduce the amount of time that he had to serve before becoming eligible for parole on his kidnaping conviction. Rice v. State, 28 So.3d 683, 2010 Miss. App. LEXIS 61 (Miss. Ct. App. 2010).

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).

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).

11. – – Usury, ex post facto laws.

Laws regulating interest should not have retroactive operation. Eastin v. Vandorn, 1 Miss. 214, 1826 Miss. LEXIS 1 (Miss. 1826).

12. – – Taxes and monetary penalties, ex post facto laws.

Where the Laws of 1910, c 148, imposed a tax on a dog and the Laws of February 5, 1914, imposed a penalty for failure to pay such tax, the latter statute is not ex post facto. State v. Widman, 112 Miss. 1, 72 So. 782, 1916 Miss. LEXIS 49 (Miss. 1916).

13. Contracts within constitutional protection – 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).

Contracts clause of the Mississippi Constitution, Miss. Const. Art. III, § 16, prohibited the retroactive application of precedent that limited an employer’s vicarious liability for the negligence of its employee because the rights of an injured party could not be impaired by a subsequent judicial decision altering the construction of the law. Dimple v. T & M Foods, Ltd., 2008 Miss. LEXIS 486 (Miss. Oct. 2, 2008), sub. op., 7 So.3d 893, 2009 Miss. LEXIS 166 (Miss. 2009).

Financial adviser found that elimination of personnel and positions was required as part of the remedy for the school district’s deficit. The school district had the authority to alter the offer of renewed employment that had already been made to the assistant principal even after the deadline that would usually apply to school employee contract renewal; the school district’s actions were not unconstitutional. McKnight v. Mound Bayou Pub. Sch. Dist., 879 So. 2d 493, 2004 Miss. App. LEXIS 223 (Miss. Ct. App. 2004).

A tort action does not come within the constitutional provision prohibiting impairment of existing contracts, and a 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).

“Obligation of contract” within constitutional provisions prohibiting State from passing laws impairing obligation of contract depends on law in existence when contract was made, and 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).

Generally, no vested rights exist in prevailing laws which will preclude their amendment or repeal. Love v. Mangum, 160 Miss. 590, 135 So. 223, 1931 Miss. LEXIS 227 (Miss. 1931).

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).

A contract with levee board cannot be impaired by legislature. Franklin v. Ellis, 130 Miss. 164, 93 So. 738, 1922 Miss. LEXIS 195 (Miss. 1922).

The right to acquire and enjoy realty without limit as to value and quantity guaranteed in the charter of a corporation cannot be impaired by subsequent legislation under the police power of the state. Southern Realty Co. v. Tchula Co-operative Stores, 114 Miss. 309, 75 So. 121, 1917 Miss. LEXIS 36 (Miss. 1917).

Taxes are not due by virtue of contract. Crow v. Cartledge, 99 Miss. 281, 54 So. 947, 1911 Miss. LEXIS 208 (Miss. 1911), limited, McDonald v. State Tax Com., 158 Miss. 331, 130 So. 473, 1930 Miss. LEXIS 52 (Miss. 1930).

A contract valid when made under decisions of the courts of the state cannot be impaired by any subsequent action of the legislature or decision of its courts altering its construction of the laws under which it was made. Wisconsin Lumber Co. v. State, 97 Miss. 571, 54 So. 247, 1910 Miss. LEXIS 317 (Miss. 1910).

When the state parts with its property, even by donation, the transaction constitutes a contract, and the property is thereby placed beyond legislative control. Commercial Bank of Natchez v. Chambers, 16 Miss. 9, 1847 Miss. LEXIS 1 (Miss. 1847).

14. – – Marriage and marital property, contracts within constitutional protection.

Marriage is not a contract within the meaning of the Constitution. Carson v. Carson, 40 Miss. 349, 1866 Miss. LEXIS 76 (Miss. 1866).

Dower interest, before death of husband, not within the protection of the provision. Magee v. Young, 40 Miss. 164, 1866 Miss. LEXIS 59 (Miss. 1866).

15. – – Transportation, contracts within constitutional protection.

A right by charter granted to a railroad company to fix rates within maximum limits is a contract which cannot be impaired by subsequent legislation. Gulf & S. I. R. Co. v. Adams, 90 Miss. 559, 45 So. 91, 1907 Miss. LEXIS 128 (Miss. 1907).

The provisions of the charter of a railroad company enacted before the adoption of the Constitution of 1890 authorizing it to establish and charge for the transportation of person and property within maximum limits prescribed constitute a contract between the state and the company, the obligations of which cannot be impaired. Stone v. Yazoo & Miss. V. Ry., 62 Miss. 607, 1885 Miss. LEXIS 120 (Miss. 1885); Stone v. Natchez, J. & C. R. Co., 62 Miss. 646, 1885 Miss. LEXIS 121 (Miss. 1885), writ of error dismissed, 131 U.S. 442, 9 S. Ct. 801, 33 L. Ed. 216, 1888 U.S. LEXIS 2481 (U.S. 1888); Mississippi R. Com. v. Gulf & S. I. R. Co., 78 Miss. 750, 29 So. 789, 1901 Miss. LEXIS 141 (Miss. 1901).

The right granted by a charter to a railroad to fix its tariff of freights below a maximum is a contract. Stone v. Yazoo & Miss. V. Ry., 62 Miss. 607, 1885 Miss. LEXIS 120 (Miss. 1885).

The grant of a right to keep a ferry is not a contract. Sullivan v. Board of Supervisors, 58 Miss. 790, 1881 Miss. LEXIS 37 (Miss. 1881); Seal v. Donnelly, 60 Miss. 658, 1882 Miss. LEXIS 109 (Miss. 1882); Montjoy v. Pillow, 64 Miss. 705, 2 So. 108, 1887 Miss. LEXIS 93 (Miss. 1887).

The grant of an exclusive privilege to keep a public wharf is a contract. Martin v. O’Brien, 34 Miss. 21 (1857), construing former Art. 2, § 3.

16. – – Wages and salaries, contracts within constitutional protection.

The salary of an officer is not within the constitutional protection. State v. Smedes, 26 Miss. 47, 1853 Miss. LEXIS 39 (Miss. 1853); Hyde v. State, 52 Miss. 665, 1876 Miss. LEXIS 272 (Miss. 1876).

17. Impairment of obligation of contract–In general.

Couple did not rely on any statutory authority when they entered into the contract with the driver’s insurer but instead they entered into the contract based upon prior judicial decisions regarding the release of a tortfeasor in a vicarious liability situation; thus, the contracts clause of Miss. Const. art. 3, § 16 was not applicable. Whitaker v. T & M Foods, Ltd., 7 So.3d 946, 2007 Miss. App. LEXIS 634 (Miss. Ct. App. 2007), reversed by, remanded by 2008 Miss. LEXIS 486 (Miss. Oct. 2, 2008), reversed by, remanded by 7 So.3d 893, 2009 Miss. LEXIS 166 (Miss. 2009)supra.

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 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).

Code 1942, § 1108, known as “Fair Trade Act,” permitting producer, manufacturer or owner to contract with retailer as to resale price of his own product which is in fair and open competition with commodities of same general class produced by others, does not violate this section. W. A. Sheaffer Pen Co. v. Barrett, 209 Miss. 1, 45 So. 2d 838, 1950 Miss. LEXIS 357 (Miss. 1950).

Where a former statute did not expressly declare a usurious contract void, a modified statute under which the contract as made by the parties would be valid does not impair the obligations of the contract, but simply withdraws previous impediments and renders it enforceable as made. Deposit Guaranty Bank & Trust Co. v. Williams, 193 Miss. 432, 9 So. 2d 638, 1942 Miss. LEXIS 115 (Miss. 1942).

Where the applicable statutes, at the time the state highway commission took over a county road under an agreement to maintain it without expense to the county, contained no provision authorizing the commission to obligate itself by any such contract, subsequent abandonment and surrender to the county of a portion of such road so taken over did not constitute an impairment of the obligation of a contract. Wilkinson County v. State Highway Com., 191 Miss. 750, 4 So. 2d 298, 1941 Miss. LEXIS 187 (Miss. 1941).

Statute (Laws 1932, c 278) 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).

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 statute within the police power of the state and beneficial does not impair the freedom of contract. State v. J. J. Newman Lumber Co., 102 Miss. 802, 59 So. 923, 1912 Miss. LEXIS 125 (Miss. 1912).

Allowance of recovery against railroad for damages incurred in construction and operation of the railroad would not constitute an impairment of the obligation of a contract because its charter, and the acts amendatory to it, authorized construction of the railroad and the taking of property therefor at a time when the constitutional provisions pertaining to eminent domain required payment of compensation only for property “taken,” but did not contain the subsequently added words “or damaged.” Alabama & V. R. Co. v. King, 93 Miss. 379, 47 So. 857, 1908 Miss. LEXIS 162 (Miss. 1908).

It is not in the power of the legislature to pass a statute of limitations against bonds not due; and where such bonds are payable to bearer it cannot require an affidavit of the holder showing a chain of title. Priestly v. Watkins, 62 Miss. 798, 1885 Miss. LEXIS 151 (Miss. 1885).

See as to statutes affecting remedies. Musgrove v. Vicksburg & N. R. R. Co., 50 Miss. 677, 1874 Miss. LEXIS 107 (Miss. 1874), overruled in part, State ex rel. Pittman v. Ladner, 512 So. 2d 1271, 1987 Miss. LEXIS 2787 (Miss. 1987).

The legislature cannot enlarge the exemptions of property from liability to existing creditors; so to do would be to impair the obligations of contracts. Lessley v. Phipps, 49 Miss. 790, 1874 Miss. LEXIS 14 (Miss. 1874); Johnson v. Fletcher, 54 Miss. 628, 1877 Miss. LEXIS 61 (Miss. 1877); Rice v. Smith, 72 Miss. 42, 16 So. 417, 1894 Miss. LEXIS 91 (Miss. 1894).

A statute which prohibits a corporation from assigning promissory notes, the charter not expressly conferring the right, is valid. McIntyre v. Ingraham, 35 Miss. 25, 1858 Miss. LEXIS 5 (Miss. 1858).

18. – – Banks and banking, impairment of obligation of contract.

State bank guaranty statute providing for issuance of noninterest-bearing guaranty certificates held not invalid as impairing obligation of contract of holder for interest-bearing certificate of deposit. Love v. Mangum, 160 Miss. 590, 135 So. 223, 1931 Miss. LEXIS 227 (Miss. 1931).

Where a bank’s charter empowered it “to receive money on deposit and pay away the same free of expense, discount bills of exchange and notes, and to make loans,” and in the course of its business the bank discounted and held promissory notes, a subsequent statute, declaring it to be unlawful for any state bank to transfer, by indorsement or otherwise, any note, bill receivable, or other evidence of debt, and providing for the abatement of such debts when sued upon, was unconstitutional as impairing the obligation of contract. Planters' Bank of Mississippi v. Sharp, 47 U.S. 301, 12 L. Ed. 447, 1848 U.S. LEXIS 318 (U.S. 1848).

A statute requiring banks to pay specie on their obligations after a fixed time is valid. Commercial Bank of Natchez v. State, 14 Miss. 599, 1846 Miss. LEXIS 101 (Miss. 1846).

Act of 1843, prescribing mode of procedure against banks for violations of charters, does not impair the obligation of contracts. Commercial Bank of Rodney v. State, 12 Miss. 439, 1845 Miss. LEXIS 30 (Miss. 1845); Nevitt v. Bank of Port Gibson, 14 Miss. 513, 1846 Miss. LEXIS 100 (Miss. 1846).

19. – – Game and fish laws, impairment of obligation of contract.

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).

20. – – Jury trial, impairment of obligation of contract.

The jury statutes are not violative of the Constitution. Lewis v. State, 91 Miss. 505, 45 So. 360, 1907 Miss. LEXIS 174 (Miss. 1907).

21. – – Mortgage and foreclosure sales, impairment of obligation of contract.

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).

Act authorizing postponement of mortgage foreclosure sales and extension of time for redemption from such sales with certain limitations safeguarding rights of mortgagees was not violative of constitutional provision against impairment of obligations of contracts. Wilson Banking Co. Liquidating Corp. v. Colvard, 172 Miss. 804, 161 So. 123, 1935 Miss. LEXIS 173 (Miss. 1935).

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 move 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).

22. – – Retirement benefits, impairment or obligation of contract.

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 because 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).

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).

23. – – Taxes, impairment of obligation of contract.

Where an amendment to the 1944 Act entitled the town of Heidelberg to one-third of oil severance taxes returned to Jasper County by reducing the amount payable by one-third of tax which was produced in the municipality, the amendment was not unconstitutional and it did not impair the town’s obligation in contracts which it held with holders of water and sewer system bonds issued under resolution of mayor and board of aldermen, pledging 75 per cent of all revenue collected by the town under 1944 Act or any amendments or substitutes therefor to retire the bonds. Town of Heidelberg v. Jasper County, 218 Miss. 147, 65 So. 2d 463, 1953 Miss. LEXIS 524 (Miss. 1953).

The unconstitutional impairment of a contract results from the enactment of a statute (Laws 1924, c 170) permitting the successor of a revenue agent to report on the merits of pending suits for collection of delinquent taxes and share in the commission allowed on the amounts 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 his successor, and enjoy the resulting commission. 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).

It was constitutional for the legislature by the repeal of the statutes rendering contracts unenforceable for failure to pay privilege tax to revive the remedy for rendering such contracts enforceable. Sullivan v. Ammons, 95 Miss. 196, 48 So. 244, 1909 Miss. LEXIS 203 (Miss. 1909).

If the legislature create a board of public improvements and levy a tax on land irrevocably devoting the taxes to the satisfaction of the debts which the board was authorized to contract, the state cannot by subsequent act, after the debts are contracted, abate the tax or release the land from liability therefor. Forsdick v. Board of Levee Comm'rs, 76 Miss. 859, 26 So. 637, 1899 Miss. LEXIS 31 (Miss. 1899).

Certain statutes (Laws 1875, p. 11, undertaking to abate taxes due a levee board; Laws 1876, p. 350, in so far as it sought to avoid taxes due such levee board; and Laws 1884, p. 182, relating to levee lands held by purchasers and providing for quitclaims by the state) held void, in whole or in part, as violating the obligations of contracts of bondholders. Woodruff v. State, 77 Miss. 68, 25 So. 483, 1899 Miss. LEXIS 48 (Miss. 1899).

Where, by its charter, a municipality is authorized to raise money and appropriate it to city purposes, the legislature can divert the money to a different purpose. State Board of Education v. Aberdeen, 56 Miss. 518, 1879 Miss. LEXIS 157 (Miss. 1879).

24. – – Workers compensation laws, impairment of obligation of contract.

The Workmen’s Compensation Law does not impair right of employer and employee to contract. Walters v. Blackledge, 220 Miss. 485, 71 So. 2d 433, 1954 Miss. LEXIS 464 (Miss. 1954).

25. – – Utilities, impairment of obligation of contract.

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).

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).

No taking without due process results from denying to a utility having an exclusive municipal franchise and street lighting contract the right to extend its service into annexed territory which is part of the certificated area of another utility. Capital Electric Power Asso. v. Mississippi Power & Light Co., 250 Miss. 514, 150 So. 2d 534, 1963 Miss. LEXIS 538 (Miss.), cert. denied, 375 U.S. 77, 84 S. Ct. 196, 11 L. Ed. 2d 142, 1963 U.S. LEXIS 237 (U.S. 1963).

No taking without due process is involved in holding that a utility may continue to serve a portion of its certificated area after its annexation to a city, as against a utility having an exclusive municipal franchise. Delta Electric Power Asso. v. Mississippi Power & Light Co., 250 Miss. 482, 149 So. 2d 504, 1963 Miss. LEXIS 537 (Miss.), cert. denied, 375 U.S. 77, 84 S. Ct. 196, 11 L. Ed. 2d 142, 1963 U.S. LEXIS 237 (U.S. 1963).

This provision precludes a municipality from charging rent to a telephone company previously granted the free use of its streets. Southern Bell Tel. & Tel. Co. v. Meridian, 241 Miss. 678, 131 So. 2d 666, 1961 Miss. LEXIS 385 (Miss. 1961).

26. Impairment of obligation of contract.

Where a purchase order stated “TERMS: Net 30 Days from Invoice Date,” defendant prime contractor and plaintiff subcontractor had by contract altered the 15-day payment arrangement under Miss. Code Ann. §31-5-27 on a public construction project and thus, the subcontractor was not entitled to interest for payments made outside the 15 day limit of §31-5-27; the agreement under the purchase order was not a violation of public policy as such a contract was not prohibited by the Mississippi Constitution or the United States Constitution, a statute, or condemned by court decisions. APAC-Mississippi, Inc. v. James Constr. Group, L.L.C., 370 F. Supp. 2d 528, 2005 U.S. Dist. LEXIS 8778 (S.D. Miss.), op. withdrawn, 386 F. Supp. 2d 725, 2005 U.S. Dist. LEXIS 20575 (S.D. Miss. 2005).

RESEARCH REFERENCES

ALR.

Constitutionality of statute extending period for redemption from judicial or tax sale, or sale upon mortgage foreclosure. 1 A.L.R. 143; 38 A.L.R. 229; 89 A.L.R. 966.

Impairment of obligation of convict labor contracts. 3 A.L.R. 1671.

Power of state to change private contract rates for public utilities. 9 A.L.R. 1423.

Constitutionality of statute regulating the time of payment of wages. 12 A.L.R. 612; 26 A.L.R. 1396.

Power to require nonassenting creditors or bondholders to accept securities of, or shares in, new or reorganized corporation. 28 A.L.R. 1196, 88 A.L.R. 1238.

Constitutionality of statute relating to injunctions against crime or abatement of nuisance arising from violation of liquor law. 49 A.L.R. 635.

Constitutional or statutory changes affecting grand jury or substituting information for indictment as an ex post facto law. 53 A.L.R. 716.

Validity of curative statute impairing judgment or rendering it ineffective. 53 A.L.R. 1134, 136 A.L.R. 328.

Effect of statutory change of penalty or punishment after conviction. 55 A.L.R. 443.

Constitutionality and construction of statute enhancing penalty for second or subsequent offense. 58 A.L.R. 20; 82 A.L.R. 345; 116 A.L.R. 209; 132 A.L.R. 91; 139 A.L.R. 673.

Constitutionality of statute restoring competency of convicts as witnesses. 63 A.L.R. 982.

Constitutionality of statutes providing for consolidation or merger of public utility corporations. 66 A.L.R. 1568.

Constitutionality of levee and flood control acts. 70 A.L.R. 1274.

Applicability of constitutional or statutory provisions relating to added liability of stockholders to holders of stock issued, or stockholders of corporations organized, before their enactment. 72 A.L.R. 1252.

Constitutionality of statutes or ordinances for taxation of common carriers by automobile. 75 A.L.R. 13.

Constitutionality, construction, and effect of statutory or charter provisions relating to the sale of all or substantially all of the assets of corporation or division or distribution of proceeds. 79 A.L.R. 624.

Subsequent issue of bonds by public body as impairing obligation to prior creditors. 87 A.L.R. 397.

Statutes in relation to interest as obnoxious to constitutional provision against impairing obligation of contracts. 87 A.L.R. 462.

Validity of so-called “sales tax.” 89 A.L.R. 1432, 110 A.L.R. 1485, 117 A.L.R. 846, 128 A.L.R. 893.

Constitutionality of statute permitting state to take or use in evidence depositions in criminal case. 90 A.L.R. 377.

Raising maximum limit of permissible municipal indebtedness as impairing obligation of existing municipal contracts. 90 A.L.R. 859.

Constitutionality of statutes limiting hours of labor in private industry. 90 A.L.R. 814.

Debtor’s exemption statutes as impairing obligations of existing contracts. 93 A.L.R. 177.

Contract for payment in gold or silver or in gold or silver coin (“gold coin” clauses). 95 A.L.R. 1383; 101 A.L.R. 1318; 114 A.L.R. 820.

Constitutional provision against impairing obligation of contract as applicable to statutes affecting rights or remedies of holders or owners of improvement bonds or liens. 97 A.L.R. 911.

Validity of privilege tax as applied to contractor performing contract with Federal government. 97 A.L.R. 1257, 114 A.L.R. 347.

Constitutional provision against impairing obligation of contracts as applied to rights or remedies of owners of property subject to assessment for local improvements. 100 A.L.R. 164.

Constitutionality, construction and application of statute permitting release of part of property subject to tax liens or special assessments. 100 A.L.R. 418.

Validity, effect, and enforceability of provision of bonds, coupons, or other obligations of municipal or political body or of statute or ordinance under which they are issued, that they will be accepted in payment of taxes. 100 A.L.R. 1339.

Power of corporations to change obligations to stockholders. 105 A.L.R. 1452, 117 A.L.R. 1290.

Constitutionality of statute providing for proceedings supplementary to execution. 106 A.L.R. 383.

Statutes affecting mortgagee’s rights and remedies in respect of deficiency as unconstitutional impairment of obligation of contract. 108 A.L.R. 891; 115 A.L.R. 435; 130 A.L.R. 1482; 133 A.L.R. 1473.

Tax exemption as unconstitutionally impairing public obligations antedating the exemption. 109 A.L.R. 817.

Constitutional prohibition of ex post facto laws as applicable to statutes relating to joinder of offenses or defendants. 110 A.L.R. 1308.

Constitutional provisions against impairment of obligations of contract as applied to sinking funds for retirement of municipal or other public bonds. 115 A.L.R. 220.

Power to detach land from municipal corporations, towns, or villages. 117 A.L.R. 267.

Applicability to existing claims of statute shortening period for filing claims against decedent’s estate; and constitutionality of statute as so applied. 117 A.L.R. 1208.

Statutes affecting province of jury in criminal case as applicable in prosecutions for offense committed prior to its adoption. 118 A.L.R. 724.

Selective Training and Service Acts. 129 A.L.R. 1171; 147 A.L.R. 1313; 148 A.L.R. 1388; 149 A.L.R. 1457; 150 A.L.R. 1420; 151 A.L.R. 1456; 152 A.L.R. 1452; 153 A.L.R. 1422; 154 A.L.R. 1448; 155 A.L.R. 1452; 156 A.L.R. 1450; 157 A.L.R. 1450; 158 A.L.R. 1450.

Constitutionality of statute changing rights of withdrawing members of building and loan association. 133 A.L.R. 1493.

Statute regarding right of surviving spouse in estate of deceased spouse as affecting contract or waiver in that regard executed before passage of the statute. 137 A.L.R. 1099.

Validity and construction of war legislation in nature of moratory statute. 137 A.L.R. 1380, 147 A.L.R. 1311.

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.

Validity, and applicability to causes of action not already barred, of a statute enlarging limitation period. 79 A.L.R.2d 1080.

Use of peremptory challenges to exclude persons from criminal jury based on religious affiliation – post-Batson state cases. 63 A.L.R.5th 375.

Am. Jur.

16A Am. Jur. 2d, Constitutional Law §§ 411 et seq. (ex post facto laws).

16A Am. Jur. 2d, Constitutional Law §§ 450 et seq. (obligation of contracts).

CJS.

C.J.S. Constitutional Law §§ 390 to 428.

16A C.J.S., Constitutional Law §§ 431 et seq. (ex post facto laws).

Lawyers’ Edition.

Supreme Court’s views as to constitutionality, construction, and application of 42 USCS § 1981, providing for equal rights as to such matters as contracts and legal proceedings. 105 L. Ed. 2d 737.

Law Reviews.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond, 56 Miss L. J. 73, April, 1986.

Cross References —

Exercise of right of eminent domain, see §11-27-1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Validity of statutes–In general.

3. ––– Attorney’s fees, validity of statutes.

4. ––– Landowner’s rights, validity of statutes.

5. ––– Waterways, validity of statutes.

6. ––– Price regulation, validity of statutes.

7. Right of eminent domain–In general.

8. ––– Political subdivisions and municipalities, right of eminent domain.

9. ––– Taxing power, right of eminent domain.

10. ––– Public utilities, right of eminent domain.

11. ––– Sewers and drains, right of eminent domain.

12. ––– Streets and highways, right of eminent domain.

13. ––– Railroad rights of way, right of eminent domain.

14. ––– Drainage, right of eminent domain.

15. ––– Waterways, right of eminent domain.

16. – Zoning, right of eminent domain.

17. Right to due compensation–In general.

18. ––– Construction and operation of railroads, right to due compensation.

19. ––– Airports and air space, right to due compensation.

20. ––– Sewerage systems, right to due compensation.

21. ––– Waterworks, right to due compensation.

22. – – Construction and use of streets and highways, right to due compensation.

23. ––– Change of grade of street or highway, right to due compensation.

24. ––– Vacation or closing of street or highway, or railroad, right to due compensation.

25. ––– Additional public use of property devoted to public use, right to due compensation.

26. ––– Measure of compensation or damages, right to due compensation.

27. – – Burden of proof, right to due compensation.

28. Actions and remedies–In general.

29. – – Actions by or against political subdivisions, actions and remedies.

30. ––– Determination of public use, actions and remedies.

31. ––– Injunctions, actions and remedies.

32. ––– Negligence, actions and remedies.

1. In general.

Circuit court properly affirmed a county board of supervisors’ decisions declining to abandon a road and declining to award damages to an owner because the road at issue was listed as public in the county road registry, it had been maintained by the public since the 1980s, and the owner’s appeal was untimely. Seyfarth v. Adams Cty. Bd. of Supervisors, 267 So.3d 767, 2019 Miss. LEXIS 162 (Miss. 2019).

Where the allegations by a farm against the Mississippi Transportation Commission for flooding of the farm’s property had sounded in negligence, the farm could not assert Miss. Const. Art. 3, § 17 for the first time in its response to the Commission’s summary judgment motion as a defense, because the MTC did not have sufficient notice of the taking claim for the farm’s response to the summary judgment motion. B & W Farms v. Miss. Transp.Comm'n, 922 So. 2d 857, 2006 Miss. App. LEXIS 149 (Miss. Ct. App. 2006).

This section makes the question of Public use a judicial question; but the question of necessity is a legislative question. Horne v. Pearl River Valley Water Supply Dist., 249 Miss. 358, 162 So. 2d 504, 1964 Miss. LEXIS 398 (Miss. 1964).

Whether there is a public necessity for a taking is essentially a legislative question. Pearl River Valley Water Supply Dist. v. Brown, 248 Miss. 4, 156 So. 2d 572, 1963 Miss. LEXIS 369 (Miss. 1963), cert. denied, 376 U.S. 970, 84 S. Ct. 1136, 12 L. Ed. 2d 84, 1964 U.S. LEXIS 1512 (U.S. 1964).

The living owner of a future interest must have his “day in court,” or its equivalent, and is therefore a necessary party to a condemnation proceeding. Hemphill v. Mississippi State Highway Com., 245 Miss. 33, 145 So. 2d 455, 1962 Miss. LEXIS 529 (Miss. 1962).

Whether a taking is for a public use is a judicial question. Culley v. Pearl River Industrial Com., 234 Miss. 788, 108 So. 2d 390, 1959 Miss. LEXIS 556 (Miss. 1959).

This section is not applicable except where property is taken or damaged for public use by the public authorities or corporations, vested with the power of eminent domain. Burkett v. Ross, 227 Miss. 315, 86 So. 2d 33, 1956 Miss. LEXIS 691 (Miss. 1956).

Since a municipality is a creature of the Legislature, it may, within the limitations of this section and § 24 of the State Constitution, impart to it some of its sovereignty by statute. Bishop v. City of Meridian, 223 Miss. 703, 79 So. 2d 221, 1955 Miss. LEXIS 426 (Miss. 1955).

Eminent domain rights are attributes of sovereignty, and are inherent in all sovereignty, and therefore would exist without any constitutional recognition. Erwin v. Mississippi State Highway Com., 213 Miss. 885, 58 So. 2d 52, 1952 Miss. LEXIS 438 (Miss. 1952).

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).

To afford a property owner relief hereunder, it is not necessary that there shall be an actual taking of any portion of his property or that there be a physical invasion thereof. Quin v. Mississippi State Highway Com., 194 Miss. 411, 11 So. 2d 810, 1943 Miss. LEXIS 39 (Miss. 1943).

By what procedure private property may be taken for public use rests with the legislature subject to the requirements of due process of law and that section of the state constitution which provides that private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof. McAllister v. Graham, 6 So. 2d 300 (Miss. 1942).

This section is self-executing. Parker v. State Highway Com., 173 Miss. 213, 162 So. 162, 1935 Miss. LEXIS 242 (Miss. 1935); State Highway Com. v. Mason, 192 Miss. 576, 4 So. 2d 345, 6 So. 2d 468, 1941 Miss. LEXIS 6 (Miss. 1941).

Liability under constitutional provision providing that private property shall not be taken or damaged for public use except on compensation being first made is not dependent on negligence but on taking or damaging. Thompson v. Philadelphia, 180 Miss. 190, 177 So. 39, 1937 Miss. LEXIS 109 (Miss. 1937).

This section is mandatory so as to entitle owner of property damaged for public use to remedy at common law, in absence of statute providing redress. Parker v. State Highway Com., 173 Miss. 213, 162 So. 162, 1935 Miss. LEXIS 242 (Miss. 1935).

Property damaged for public use, as well as property physically invaded, must be compensated for. Kwong v. Board of Mississippi Levee Comm'rs, 164 Miss. 250, 144 So. 693, 1933 Miss. LEXIS 221 (Miss. 1933).

A guarantee in the Constitution cannot be overridden by the public policy of the state. Hill v. Woodward, 100 Miss. 879, 57 So. 294, 1911 Miss. LEXIS 89 (Miss. 1911).

The term “property” includes every species of value, right or interest and any invasion of property rights entitles one to damages, although such may be nominal. Illinois C. R. Co. v. State, 94 Miss. 759, 48 So. 561, 1909 Miss. LEXIS 355 (Miss. 1909).

A statute regulating and restricting the capture of creatures ferae naturae, not reduced to actual possession, is not violative of this section. Ex parte Fritz, 86 Miss. 210, 38 So. 722, 1905 Miss. LEXIS 75 (Miss. 1905).

This section does not authorize the courts to determine the necessity for the taking of property in the exercise of eminent domain. Ham v. Board of Levee Comm'rs, 83 Miss. 534, 35 So. 943, 1903 Miss. LEXIS 74 (Miss. 1903); Greenwood v. Gwin, 153 Miss. 517, 121 So. 160, 1929 Miss. LEXIS 57 (Miss. 1929).

The section enlarges the previous rule, in that it provides that property cannot be damaged (though not taken) for public use without due compensation first made. Alabama & V. R. Co. v. Bloom, 71 Miss. 247, 15 So. 72, 1893 Miss. LEXIS 204 (Miss. 1893).

The private property meant is property of a specific, fixed, and tangible nature, capable of possession and transmission. Commissioners of Homochitto River v. Withers, 29 Miss. 21, 1855 Miss. LEXIS 28 (Miss. 1855), aff'd, 61 U.S. 84, 15 L. Ed. 816, 1857 U.S. LEXIS 433 (U.S. 1858).

2. Validity of statutes–In general.

District court found that the Eleventh Amendment to the U.S. Constitution did not bar an association from proceeding with an action against Mississippi’s Fiscal Officer in his official capacity, alleging that powers he was given under amendments to Miss. Code Ann. §83-21-21 violated the Fifth and Fourteenth Amendments to the U.S. Constitution because he was able to take private property without just compensation, but that it could not hear claims the association made against the State of Mississippi or a claim it made against the Fiscal Officer which alleged that the amendments violated Miss. Const. art. 3, § 17. Miss. Surplus Lines Ass'n v. Mississippi, 384 F. Supp. 2d 982, 2005 U.S. Dist. LEXIS 18454 (S.D. Miss. 2005).

An ordinance requiring the removal of non-conforming signs after five years pursuant to an exercise of police power was not an unconstitutional taking of property. Red Roof Inns, Inc. v. City of Ridgeland, 797 So. 2d 898, 2001 Miss. LEXIS 49 (Miss. 2001).

Outdoor Advertising Act (Code 1972, §§49-23-1 through49-23-29) does not violate Miss Const § 17 or U.S. Const Amendment 14. Mississippi State Highway Com. v. Roberts Enterprises, Inc., 304 So. 2d 637, 1974 Miss. LEXIS 1457 (Miss. 1974).

The Legislature has granted each municipality power to amend its special charter, but when municipality undertakes to make this amendment whether as to substance or form, it must follow the statute as to manner and method by which such amendment may be made. Bishop v. City of Meridian, 223 Miss. 703, 79 So. 2d 221, 1955 Miss. LEXIS 426 (Miss. 1955).

3. ––– Attorney’s fees, validity of statutes.

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).

4. ––– Landowner’s rights, validity of statutes.

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).

Neither the constitution nor the laws of this state impose liability on a contractor lawfully acting in behalf of the United States in performing a lawful public function without negligence, the landowner’s remedy, if any, being against the public agency having the work done. Pigott v. Boeing Co., 240 So. 2d 63, 1970 Miss. LEXIS 1268 (Miss. 1970).

Land is not taken or damaged for public use by a city’s surveyor’s going thereon to make a survey. City of Laurel v. Bush, 238 Miss. 718, 120 So. 2d 149, 1960 Miss. LEXIS 461 (Miss. 1960).

5. ––– Waterways, validity of statutes.

Section51-1-4’s 100 cubic feet per second standard for determining what constitutes a public waterway suffers no constitutional or other infirmity when scrutinized under §§ 14, 17 or 81 of the Mississippi Constitution or otherwise, or under federal law, including but not limited to the Equal Footings Doctrine and the congressional enactment of 1817 creating the State of Mississippi. Ryals v. Pigott, 580 So. 2d 1140, 1990 Miss. LEXIS 694 (Miss. 1990), cert. denied, 502 U.S. 940, 112 S. Ct. 377, 116 L. Ed. 2d 328, 1991 U.S. LEXIS 6438 (U.S. 1991).

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).

A statute empowering a water district to condemn lands within a quarter-mile of the shore line of its reservoir where necessary for the project and the exercise of its powers and functions does not authorize a taking for other than public purposes because it authorizes the district to lease or sell land for the purpose of operating recreational facilities for profit, to dispose of any property for the furtherance of its business, and a repurchase by leaseholders of a limited portion of the property condemned. Culley v. Pearl River Industrial Com., 234 Miss. 788, 108 So. 2d 390, 1959 Miss. LEXIS 556 (Miss. 1959).

Where the city used underlying waters of Mississippi Sound for the purpose of constructing a small craft commercial harbor, this did not constitute taking property for public use without compensation despite the fact that construction of the harbor would deprive the property owners of access to boating, fishing, etc. Xidis v. Gulfport, 221 Miss. 79, 72 So. 2d 153, 1954 Miss. LEXIS 515 (Miss. 1954).

6. ––– Price regulation, validity of statutes.

The provision for the fixing of prices by the Milk Control Act of 1960, being a valid exercise of the police power, does not violate this provision. Mississippi Milk Com. v. Vance, 240 Miss. 814, 129 So. 2d 642, 1961 Miss. LEXIS 515 (Miss. 1961).

7. Right of eminent domain–In general.

Plaintiff landowner, whose dilapidated structure was demolished by defendant city on public safety grounds, was given sufficient notice and time to clean the property himself; due to the fact that he did not comply with the city’s directives within the time given, the city was authorized to clear his property and assess the costs to him without that constituting a taking under the Mississippi Constitution. Pearson v. City of Louisville, 2008 U.S. Dist. LEXIS 89580 (N.D. Miss. Nov. 4, 2008).

Judgment for eminent domain taking under Miss. Const. Art. 3 § 17 was affirmed because the evidence was sufficient to support the verdict; there was reasonable access left to the property after the taking; the jury awarded the landowner several thousand dollars more than the original offer, indicating the jury awarded some damages for the lack of access; and there was no problem with the jury instructions as they provided a correct statement of the statutory procedure involved in eminent domain. North Biloxi Dev. Co., L.L.C. v. Miss. Transp. Comm'n, 912 So. 2d 1118, 2005 Miss. App. LEXIS 750 (Miss. Ct. App. 2005).

Since Article 3, Section 17 mandates that a determination of public use be made whenever private property is taken, and the condemnor has the burden of proof on the issue of public use, §§65-1-301 to65-1-347, strictly construed, are unconstitutional for not providing a predeprivation opportunity for the landowner to challenge the taking and to make the condemnor satisfy its burden on the issue of public use. Lemon v. Mississippi Transp. Comm'n, 735 So. 2d 1013, 1999 Miss. LEXIS 117 (Miss. 1999).

Whether a taking by eminent domain is for a public use is a judicial question and Code 1942, § 2782 creates a specific and exclusive remedy for determining the right to eminent domain and public necessity. Texas Gas Transmission Corp. v. Council, 199 So. 2d 247, 1967 Miss. LEXIS 1289 (Miss. 1967).

A condemnor has the burden of proving that the use for which property is taken is public. Pearl River Valley Water Supply Dist. v. Brown, 248 Miss. 4, 156 So. 2d 572, 1963 Miss. LEXIS 369 (Miss. 1963), cert. denied, 376 U.S. 970, 84 S. Ct. 1136, 12 L. Ed. 2d 84, 1964 U.S. LEXIS 1512 (U.S. 1964).

The uses for which property is taken are none the less public because served through the agency of lessees of the public authority. Pearl River Valley Water Supply Dist. v. Brown, 248 Miss. 4, 156 So. 2d 572, 1963 Miss. LEXIS 369 (Miss. 1963), cert. denied, 376 U.S. 970, 84 S. Ct. 1136, 12 L. Ed. 2d 84, 1964 U.S. LEXIS 1512 (U.S. 1964).

A taking for a public use is not invalid merely because of an incidental benefit to private individuals. Pearl River Valley Water Supply Dist. v. Brown, 248 Miss. 4, 156 So. 2d 572, 1963 Miss. LEXIS 369 (Miss. 1963), cert. denied, 376 U.S. 970, 84 S. Ct. 1136, 12 L. Ed. 2d 84, 1964 U.S. LEXIS 1512 (U.S. 1964).

The burden of proof is on a landowner who alleges lack of necessity for a taking authorized by the legislature. Pearl River Valley Water Supply Dist. v. Brown, 248 Miss. 4, 156 So. 2d 572, 1963 Miss. LEXIS 369 (Miss. 1963), cert. denied, 376 U.S. 970, 84 S. Ct. 1136, 12 L. Ed. 2d 84, 1964 U.S. LEXIS 1512 (U.S. 1964).

Whether a taking is necessary is within the discretion of the condemnor, with the exercise of which the courts will interfere only when abuse or fraud is shown. Pearl River Valley Water Supply Dist. v. Brown, 248 Miss. 4, 156 So. 2d 572, 1963 Miss. LEXIS 369 (Miss. 1963), cert. denied, 376 U.S. 970, 84 S. Ct. 1136, 12 L. Ed. 2d 84, 1964 U.S. LEXIS 1512 (U.S. 1964).

Where the uses for which property is taken are public, it is not necessary to show specifically what uses are to be made of particular parts. Pearl River Valley Water Supply Dist. v. Brown, 248 Miss. 4, 156 So. 2d 572, 1963 Miss. LEXIS 369 (Miss. 1963), cert. denied, 376 U.S. 970, 84 S. Ct. 1136, 12 L. Ed. 2d 84, 1964 U.S. LEXIS 1512 (U.S. 1964).

The general rule is that the power of eminent domain should be construed favorably to landowner and that no greater estate can be taken than the particular use requires. Berry v. Southern Pine Electric Power Asso., 222 Miss. 260, 76 So. 2d 212, 1954 Miss. LEXIS 644 (Miss. 1954).

That proceedings in eminent domain were authorized and directed by resolution rather than by ordinance by city operating under legislative charter providing that city may exercise right of eminent domain and that deeds and contracts necessary to be made in writing shall be authorized by resolution of council is immaterial as distinction between two devices when applied to specific act is one of language only and it is formal attested action of council expressive of its determination that counts. McLaurin v. State, 41 So. 2d 41 (Miss. 1949).

This section applies to all persons, natural and artificial. Eady v. State, 121 So. 295 (Miss. 1929).

Power to exercise the right of eminent domain by private or municipal corporations is limited to express terms or clear implication. Wise v. Yazoo City, 96 Miss. 507, 51 So. 453, 1910 Miss. LEXIS 174 (Miss. 1910).

The right of eminent domain is an inherent and essential element of sovereignty; this is recognized by the Constitution and limitations placed on it; the section is not enabling but restrictive. Brown v. Beatty, 34 Miss. 227, 1857 Miss. LEXIS 128 (Miss. 1857).

8. ––– Political subdivisions and municipalities, right of eminent domain.

Constitution prohibiting taking or damaging of property for public use applies to state and political subdivisions including municipality, regardless of whether the taking or damaging is in exercise of governmental function or not. Hodges v. Drew, 172 Miss. 668, 159 So. 298, 1935 Miss. LEXIS 112 (Miss. 1935); Thompson v. Philadelphia, 180 Miss. 190, 177 So. 39, 1937 Miss. LEXIS 109 (Miss. 1937).

A municipality may by legislative authority charge the costs of paving a sidewalk as a lien on abutting lots of different owners according to the front foot rule, and to do so is not a taking of private property for public use without compensation. Wilzinski v. Greenville, 85 Miss. 393, 37 So. 807, 1904 Miss. LEXIS 150 (Miss. 1904).

The section embraces municipalities and prohibits them from taking or damaging private property without compensation, etc., embracing both direct and consequential damages. Mayor, etc., of Vicksburg v. Herman, 72 Miss. 211, 16 So. 434, 1894 Miss. LEXIS 96 (Miss. 1894).

9. ––– Taxing power, right of eminent domain.

Where the purchaser of land at a tax sale was not joined as a party to an eminent domain action, and the Highway Commission, after judgment, entered upon the property, took possession of the condemned right of way, and began construction work thereon, purchaser had been denied due process and his property had been taken without compensation. Mississippi State Highway Com. v. Casey, 253 Miss. 685, 178 So. 2d 859, 1965 Miss. LEXIS 1033 (Miss. 1965).

Section held inapplicable to taxing power, but only to taking of specific property for public use. Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 1938 Miss. LEXIS 53 (Miss. 1938).

This section is inapplicable to a statute which, for the avowed purpose of relieving unemployment and aiding agriculture and industry, authorized municipalities to raise funds by taxation for the acquisition of lands and the construction of factories to be leased to individuals and private corporations on terms which would insure their continued operation. Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 1938 Miss. LEXIS 53 (Miss. 1938).

Tobacco tax statute does not violate constitutional provisions prohibiting taking of property for public use without compensation. Edward Hines Lumber Co. v. Hall, 148 So. 373 (Miss. 1933).

Inhibition against taking property except on due compensation has no application to taxing property. 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).

Local assessments, beyond the limits of taxation, are, according to what is probably dicta, violative of this provision. Town of Macon v. Patty, 57 Miss. 378, 1879 Miss. LEXIS 93 (Miss. 1879).

The power of eminent domain and the power of taxation are distinct, and the exercise of the latter is not a taking within this provision. Griffin v. Dogan, 48 Miss. 11, 1873 Miss. LEXIS 30 (Miss. 1873); Martin v. Dix, 52 Miss. 53, 1876 Miss. LEXIS 163 (Miss. 1876).

A statute providing for the investiture of the state with title to land because of nonpayment of taxes, without a sale, is void. Griffin v. Mixon, 38 Miss. 424, 1860 Miss. LEXIS 16 (Miss. 1860).

10. ––– Public utilities, right of eminent domain.

The holder of a 16th section agricultural lease, which reserved to the board of supervisors the right to grant or sell a right-of-way across said land for any public utility line, had the right to prevent the construction of a pipeline across his leasehold lands under a purported pipeline easement granted by the board of supervisors, where the holder of the easement was not a public utility because its transmission of gas through the proposed pipeline was not open to the public and it had not acquired a certificate of public convenience and necessity. Holder v. Mississippi Fuel Co., 317 So. 2d 891, 1975 Miss. LEXIS 1778 (Miss. 1975).

A statute authorizing public utilities to enter on lands to make a preliminary examination and survey with a view to condemnation, subject to liability for any damage done, does not violate this provision. Wood v. Mississippi Power Co., 245 Miss. 103, 146 So. 2d 546, 1962 Miss. LEXIS 536 (Miss. 1962).

An easement acquired by eminent domain for telephone and telegraph lines, may be used for television transmission along with other telephone and telegraph purposes and such use was a public use and such television transmission would be done by company as common carrier. Ball v. American Tel. & Tel. Co., 227 Miss. 218, 86 So. 2d 42, 1956 Miss. LEXIS 677 (Miss. 1956).

Destruction or impairment of a rural telephone system, using only one wire and the earth for the return of the current which completed the circuit, resulting by induction because of the subsequent construction of a parallel electric distribution system was not a damaging of public property within the purview of this section, where such electric distribution system was without defect and the damage to the telephone system could be avoided by installing a second wire, the owner of such telephone system acquiring no property right in the continuation of the one-wire system. Wade v. State, 196 So. 510 (Miss. 1940).

Under legislative grant a telephone company may condemn the right of way of a railroad. Western Union Tel. Co. v. Louisville & N. R. Co., 107 Miss. 626, 65 So. 650, 1914 Miss. LEXIS 129 (Miss. 1914), aff'd, 250 U.S. 363, 39 S. Ct. 513, 63 L. Ed. 1032, 1919 U.S. LEXIS 1756 (U.S. 1919); Louisville & N. R. Co. v. Western Union Tel. Co., 234 U.S. 369, 34 S. Ct. 810, 58 L. Ed. 1356, 1914 U.S. LEXIS 1156 (U.S. 1914).

Telephone companies may condemn a railroad right of way for its poles and fixtures. Cumberland Tel. & Tel. Co. v. Yazoo & M. V. R. Co., 90 Miss. 686, 44 So. 166, 1907 Miss. LEXIS 115 (Miss. 1907).

11. ––– Sewers and drains, right of eminent domain.

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 could not be compelled to condemn complainant’s whole right to construct sewerage system where public necessity only required equal easement with that of complainants. City of Greenwood v. Gwin, 153 Miss. 517, 121 So. 160, 1929 Miss. LEXIS 57 (Miss. 1929).

As to right of drainage district to divert flood waters upon outside riparian owners, see Indian Creek Drainage Dist. v. Garrott, 123 Miss. 301, 85 So. 312, 1920 Miss. LEXIS 31 (Miss. 1920).

As to eminent domain under c 270, Laws of 1914. Riverside Drainage Dist. v. Buckner, 108 Miss. 427, 66 So. 784, 1914 Miss. LEXIS 211 (Miss. 1914).

12. ––– Streets and highways, right of eminent domain.

The negotiated conveyance in lieu of eminent domain of a portion of the property used as a church and cemetery by the occupying church organization to the state highway commission for highway purposes did not constitute an abandonment of the conveyed property for the purpose for which it was originally granted so as to give the holders of a mere possibility of reverter therein a cause of action against the highway department, particularly where there was no evidence that the remainder of the property would not continue to be used for the purposes for which it was conveyed. Patrick v. Mississippi State Highway Com., 184 So. 2d 850, 1966 Miss. LEXIS 1482 (Miss. 1966).

The acquisition by eminent domain of an easement or right-of-way primarily, if not exclusively, for the benefit of a landowner whose means of ingress and egress had been cut off by reason of the acquisition from him of a portion of the right-of-way for a public limited access highway was a mere byproduct of laying out the highway, and being essential for the construction of the highway, was itself a taking for a public use and not violative of this section. J. & G. Express, Inc. v. Pic-Walsh Freight Co., 175 So. 2d 606 (Miss. 1965).

Construction of a clover-leaf intersection the effect of which was to change the points at which abutting owners may enter a highway constitutes a taking. Hamilton v. Mississippi State Highway Com., 240 Miss. 895, 128 So. 2d 742, 1961 Miss. LEXIS 521 (Miss. 1961).

An abutting property owner may not enjoin a municipality from raising or lowering a street on the showing that it will injure his property, nor may he have the change eliminated or the original grade restored or have a reworking of the reconstruction in a manner to avoid the alleged damage caused by the casting of surface water on his property by an injunction. City of Water Valley v. Poteete, 203 Miss. 382, 33 So. 2d 794, 1948 Miss. LEXIS 283 (Miss. 1948).

Where a property owner creates a subdivision and lays it off into lots with streets and reserves the right in the streets to operate a public utility, a city which afterwards takes in such subdivision takes the streets burdened with the rights of the original owner and must condemn rights under the power of eminent domain to secure them from the owner. Gwin v. Greenwood, 150 Miss. 656, 115 So. 890, 1928 Miss. LEXIS 102 (Miss. 1928).

13. ––– Railroad rights of way, right of eminent domain.

The State’s acquisition of an abandoned railroad right-of-way contiguous to the boundary of a state penitentiary was clearly for a public purpose where there was no suggestion that the State had any plan to use the property in any fashion except to be a part of the state penitentiary grounds. Governor's Office of General Services v. Carter, 573 So. 2d 736, 1990 Miss. LEXIS 839 (Miss. 1990).

14. ––– Drainage, right of eminent domain.

Landowner may bring action for damage to real property caused by construction of drainage canal notwithstanding failure of property owner to first present claim to county board of supervisors, as required by statute (§65-7-61) where damage constitutes violation of Mississippi Constitution and where violation takes place in absence of prior notice. Runge v. Necaise Constr. Co., 467 So. 2d 666, 1985 Miss. LEXIS 2021 (Miss. 1985).

This section is self-executing: therefore no legislation is necessary to permit a landowner to sue for damages to his property through erosion by an uncared-for county-constructed drainage ditch. Dorsey v. County of Adams, 246 Miss. 369, 149 So. 2d 493, 1963 Miss. LEXIS 451 (Miss. 1963).

A landowner may not be deprived without compensation of the right to a crossing over a drainage canal. Beaver Dam Drainage Dist. v. McClain, 241 Miss. 865, 133 So. 2d 615, 1961 Miss. LEXIS 414 (Miss. 1961).

State Highway Commission was not liable for negligence of its engineers in so constructing ditches on sides of highway as to cause water of creek to overflow owners’ farm lands. State Highway Com. v. Knight, 170 Miss. 60, 154 So. 263, 1934 Miss. LEXIS 97 (Miss. 1934).

A riparian owner or drainage district may erect levees or other works to protect lands from the accidental or flood waters of the stream. Jones v. George, 126 Miss. 576, 89 So. 231, 1921 Miss. LEXIS 66 (Miss. 1921).

This section does not apply as to the liability vel non of a corporation, public or private, for unauthorized acts of its officers and agents. Stephens v. Beaver Dam Drainage Dist., 123 Miss. 884, 86 So. 641, 1920 Miss. LEXIS 90 (Miss. 1920).

15. ––– Waterways, right of eminent domain.

Power to condemn land for a public water supply reservoir includes perimeter lands for the control of access and of polluting. Pearl River Valley Water Supply Dist. v. Brown, 248 Miss. 4, 156 So. 2d 572, 1963 Miss. LEXIS 369 (Miss. 1963), cert. denied, 376 U.S. 970, 84 S. Ct. 1136, 12 L. Ed. 2d 84, 1964 U.S. LEXIS 1512 (U.S. 1964).

16. – Zoning, right of eminent domain.

An amendment of a zoning ordinance that changed the zone containing the plaintiff’s business from a permitted use to a conditional use zone did not constitute a taking. Walters v. City of Greenville, 751 So. 2d 1206, 1999 Miss. App. LEXIS 674 (Miss. Ct. App. 1999).

A bill for an injunction to require the owner of land located approximately 3500 feet from the main airport runway to top or remove trees which had been permitted to extend into a restricted area more than 50 feet above the surface established by an otherwise valid zoning order as an instrument approach zone and transition surface zone, was dismissed on the ground that the zoning restriction constituted an unlawful taking or damage of private property for public use without due compensation. Ballard v. Maraman, 191 So. 2d 126, 1966 Miss. LEXIS 1203 (Miss. 1966).

A city and a municipal airport authority which, by enactment of an authorized valid zoning ordinance, had assumed, for the protection of an instrument approach zone and a transition surface zone, to prohibit the owner of property located approximately 3500 feet from the main airport runway from using or encroaching upon air space more than 50 feet above his land, had so interfered with and restricted the owner’s use and enjoyment of his private property for public use as to constitute a taking or damaging thereof without due compensation. Ballard v. Maraman, 191 So. 2d 126, 1966 Miss. LEXIS 1203 (Miss. 1966).

Rural zoning ordinance enacted under Laws 1944, ch 198, amending Laws 1938, ch 448, to be valid, must comply with constitutional requirements that private property shall not be taken or damaged for public use without compensation, and that no person shall be deprived of property except by due process of law. Frederic v. Board of Sup'rs, 197 Miss. 293, 20 So. 2d 92, 1944 Miss. LEXIS 300 (Miss. 1944).

Rural zoning ordinance, enacted under Laws 1944, ch 198, amending Laws 1938, ch 448, acquires no facility to avoid constitutional guaranties (that private property shall not be taken or damaged for public use without compensation and that no person shall be deprived of property except by due process of law) by the mere device of giving it a name, nor by coupling it with a commendatory preamble. Frederic v. Board of Sup'rs, 197 Miss. 293, 20 So. 2d 92, 1944 Miss. LEXIS 300 (Miss. 1944).

Although a zoning ordinance enacted under ch 198, Laws 1944, amending ch 448, Laws 1938, a rural zoning statute, may be valid in its general aspects, it is void as applied to a particular property or area, if, when applied to such particular area or piece of property and a particular set of facts, the ordinance is so arbitrary and unreasonable as to result in confiscation. Frederic v. Board of Sup'rs, 197 Miss. 293, 20 So. 2d 92, 1944 Miss. LEXIS 300 (Miss. 1944).

17. Right to due compensation–In general.

Circuit Court properly granted summary judgment in favor of a city because a lessee was not entitled to compensation where the city notified the lessee that it could no longer sell fireworks on newly annexed land, the regulation of fireworks sales was considered a police power, and the pre-existing-use doctrine and/or grandfathering was not applicable to ordinances relating to police powers, and the regulation of fireworks sales was considered a police power. Pearson's Fireworks, Inc. v. City of Hattiesburg, 212 So.3d 778, 2014 Miss. LEXIS 391 (Miss. 2014).

Where the State deposited the funds for eminent domain proceeding, the landowners had the right to withdraw the funds from any point thereafter; therefore, the State no longer had control of the funds and had no obligation to pay interest on those funds from the date of deposit. Gautier v. Miss. Transp. Comm'n, 839 So. 2d 588, 2003 Miss. App. LEXIS 154 (Miss. Ct. App. 2003).

Where jury’s verdict of amount owed to landowners for property taken by the State was between the values set by all three experts, the verdict was not contrary to the weight of the credible evidence, or the result of bias, passion, or prejudice. Gautier v. Miss. Transp. Comm'n, 839 So. 2d 588, 2003 Miss. App. LEXIS 154 (Miss. Ct. App. 2003).

While this section gives individuals the constitutional right not to have their private property taken without just compensation, it does not extend to a constitutional right to particular jury instructions pertaining to the taking of the property of an individual. Carlton v. Mississippi Transp. Comm'n, 749 So. 2d 170, 1999 Miss. App. LEXIS 474 (Miss. Ct. App. 1999).

There was no confiscatory taking without payment of due compensation when the defendant city refused to rezone residential property to light commercial, 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).

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).

In an action by the owner of a building for damages allegedly caused to the structure by construction work on a city street by contractors employed by the city and its urban renewal agency, the trial court erred in directing a verdict in favor of the agency and the city where factual questions existed as to whether there was a causal connection between the construction work and the damage to the building. Walker v. Laurel Urban Renewal Agency, 383 So. 2d 149, 1980 Miss. LEXIS 2001 (Miss. 1980).

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).

This section does not contemplate or require that condemned land must be evaluated on the same day that a physical entry is made of it, but rather that payment, based upon an evaluation within a reasonable time prior thereto, must be made to the condemnee before actual physical possession of the property is taken by the condemnor. Pearl River Valley Water Supply Dist. v. Wright, 203 So. 2d 296, 1967 Miss. LEXIS 1356 (Miss. 1967).

If, in an eminent domain proceeding, the landowner is required to pay the costs of appeal to the Supreme Court when the condemning agency has appealed, the owner will be paid less than due compensation for his property and the constitutional requirement set forth in this section would thereby be nullified. Pearl River Valley Water Supply Dist. v. Brown, 254 Miss. 700, 184 So. 2d 407, 1966 Miss. LEXIS 1466 (Miss. 1966).

The condemnor must offer evidence of the value of the property taken. Morgan v. State, 161 So. 2d 780 (Miss. 1964).

The owners of an executory interest in land following a defeasible fee, upon an uncertain event, have a compensable interest on a taking or damaging. Hemphill v. Mississippi State Highway Com., 245 Miss. 33, 145 So. 2d 455, 1962 Miss. LEXIS 529 (Miss. 1962).

Since the littoral rights incident to the ownership of beach front property along the Mississippi Gulf Coast is a most valuable attribute of such property, the state, acting through the county, could not, without first paying just compensation, “pump up” the submerged bottoms adjacent to privately owned uplands, and thereby cut off direct access to the water. Williams v. Otis Engineering Corp., 140 So. 2d 838 (Miss. 1962).

An assessment of damages for a taking for public use should not be set aside unless so excessive as to be contrary to the great weight of the evidence or to indicate bias or prejudice. Mississippi State Highway Com. v. Baker, 241 Miss. 738, 133 So. 2d 277, 1961 Miss. LEXIS 394 (Miss. 1961).

The annexation of lands to a city over the objection of their owners is not a taking of property without compensation. In re Extension of Boundaries, 237 Miss. 486, 115 So. 2d 323, 1959 Miss. LEXIS 495 (Miss. 1959).

Private property shall not be damaged for public use without compensation. City of Jackson v. Cook, 214 Miss. 201, 58 So. 2d 498, 1952 Miss. LEXIS 459 (Miss. 1952).

Statute authorizing county supervisors to take land for a sea wall and requiring landowners to claim compensation within a specified time does not violate the Constitution forbidding the taking of property without compensation first being made. Henritzy v. Harrison County, 180 Miss. 675, 178 So. 322, 1938 Miss. LEXIS 27 (Miss. 1938).

Neither the State nor any of its political subdivisions is required to tender in actual cash just compensation for property taken or damaged in eminent domain proceeding, and the requirement of just compensation in advance is satisfied when public faith and credit are pledged to a reasonably prompt ascertainment of payment and there is adequate provision for enforcing the pledge. Byrd v. Board of Sup'rs, 179 Miss. 880, 176 So. 386, 176 So. 910, 1937 Miss. LEXIS 55 (Miss. 1937).

To make it liable the board of supervisors must give such directions as make the act of the overseer their act, and mere notice of bad condition and failure to repair does not make it liable. Rainey v. Hinds County, 79 Miss. 238, 30 So. 636, 1901 Miss. LEXIS 44 (Miss. 1901).

The owner of land damaged by the taking of the land of another is entitled to compensation. Richardson v. Board of Mississippi Levee Comm'rs, 77 Miss. 518, 26 So. 963, 1899 Miss. LEXIS 65 (Miss. 1899).

The legislature may authorize the guardian of an infant, or person of unsound mind, to agree upon damages to be paid for the property of the ward taken for public use. Louisville, N. O. & T. R. Co. v. Blythe, 69 Miss. 939, 11 So. 111, 1892 Miss. LEXIS 7 (Miss. 1892).

The legislature cannot limit the time within which the owner may claim compensation. Yazoo-Mississippi Delta Levee Bd. v. Dancy, 65 Miss. 335, 3 So. 568, 1887 Miss. LEXIS 65 (Miss. 1887).

Compensation must be in money, and cannot be diminished by supposed benefits resulting from the improvement. Brown v. Beatty, 34 Miss. 227, 1857 Miss. LEXIS 128 (Miss. 1857); Isom v. Mississippi C. R. Co., 36 Miss. 300, 1858 Miss. LEXIS 98 (Miss. 1858); Penrice v. Wallis, 37 Miss. 172, 1859 Miss. LEXIS 14 (Miss. 1859); New Orleans, J. & G. N. R. Co. v. Moye, 39 Miss. 374, 1860 Miss. LEXIS 61 (Miss. 1860).

Compensation must precede the seizure of the property for public uses. Thompson v. Grand G. R. & B. Co., 4 Miss. 240, 1839 Miss. LEXIS 22 (Miss. 1839); Yazoo-Mississippi Delta Levee Bd. v. Dancy, 65 Miss. 335, 3 So. 568, 1887 Miss. LEXIS 65 (Miss. 1887).

18. ––– Construction and operation of railroads, right to due compensation.

State may lawfully require interstate railroad to abolish at own expense highway grade crossings, 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).

Under municipal authority a street railway may lay its tracks across railroad tracks in the street without making compensation. Mississippi C. R. Co. v. Hattiesburg Traction Co., 109 Miss. 101, 67 So. 897, 1915 Miss. LEXIS 120 (Miss. 1915).

A railroad previously chartered held not exempt from liability to a private property owner for damages to her property caused by the operation of the road in such a manner as to create a private nuisance. Alabama & V. R. Co. v. King, 93 Miss. 379, 47 So. 857, 1908 Miss. LEXIS 162 (Miss. 1908).

This section contemplates damage caused from smoke, soot and cinders. King v. Vicksburg R. & L. Co., 88 Miss. 456, 42 So. 204, 1906 Miss. LEXIS 201 (Miss. 1906).

A railroad company cannot escape liability for damages to property, not taken on the ground that they are only such as necessarily and naturally arise from the proper management and control of its trains. Alabama & V. R. Co. v. Bloom, 71 Miss. 247, 15 So. 72, 1893 Miss. LEXIS 204 (Miss. 1893).

The legislature cannot provide for the appropriation of private property to a mere private enterprise, but it is not essential that the enterprise should be exclusively a state undertaking; the right of eminent domain may be exercised for the construction of railroads. Brown v. Beatty, 34 Miss. 227, 1857 Miss. LEXIS 128 (Miss. 1857).

19. ––– Airports and air space, right to due compensation.

Although a municipal airport had informally, without resorting to eminent domain or other legal process, acquired an overflight easement in the air space above the plaintiffs’ land, there had been an actual taking for public use of private property where low overflights of great numbers of aircraft habitually and constantly invaded the air space and substantially impaired the plaintiffs’ use and enjoyment of their property, and the owners were entitled to compensation. Emmons v. Pope, 232 So. 2d 709, 1970 Miss. LEXIS 1636 (Miss. 1970).

Where the use of the air space above the plaintiffs’ land by aircraft approaching and taking off from a municipal airport amounted to a taking for which the plaintiffs were entitled to compensation, they were not limited to recovery against the United States on the theory that federal legislation had placed navigable air spaces in the public domain and had pre-empted the field. Emmons v. Pope, 232 So. 2d 709, 1970 Miss. LEXIS 1636 (Miss. 1970).

20. ––– Sewerage systems, right to due compensation.

Where private builders had dedicated to public use, without any reservation, a part of a sewer system laid in public roads and streets, such portion of the sewer system was not private property protected by this section of the constitution, and a municipality, which had expanded its city limits and had taken over this portion of the system, was not required to pay compensation to the private builders. Stegall v. Jackson, 244 Miss. 169, 141 So. 2d 236, 1962 Miss. LEXIS 435 (Miss. 1962).

City was liable for any special and different damage suffered by property owner, not common to general public, caused by construction and maintenance of its sewerage system whether properly constructed and maintained or not. Thompson v. Philadelphia, 180 Miss. 190, 177 So. 39, 1937 Miss. LEXIS 109 (Miss. 1937).

In action by property owners against city for damages from sewerage system, instruction in substance that jury could not find for plaintiffs unless it believed from preponderance of evidence that injuries, if any, were caused by negligent construction and maintenance of sewerage system by city, held erroneous as presenting false issue and misleading because liability did not depend on negligence. Thompson v. Philadelphia, 180 Miss. 190, 177 So. 39, 1937 Miss. LEXIS 109 (Miss. 1937).

Landowners could recover for damages to land caused by overflow from defective municipal sewage septic tank, in view of constitutional prohibition against taking or damaging of private property for public purposes, as regards municipality’s contention that in maintaining septic tank it was exercising police power of conserving public health, which was governmental function, in exercise of which, although wrongful, municipality was not liable for damage. Hodges v. Drew, 172 Miss. 668, 159 So. 298, 1935 Miss. LEXIS 112 (Miss. 1935).

The Drainage Act of 1912 held not to authorize the taking of property without compensation. Jones v. Belzoni Drainage Dist., 102 Miss. 796, 59 So. 921, 1912 Miss. LEXIS 124 (Miss. 1912).

City was liable for damage caused by discharging sewerage into a stream flowing through plaintiff’s land. Thompson v. Winona, 96 Miss. 591, 51 So. 129, 1910 Miss. LEXIS 160 (Miss. 1910).

21. ––– Waterworks, right to due compensation.

After annexation of the service area of a certificated private water company, a municipality has no right to invade that area in competition with the private company without first paying compensation as provided in this section. City of Jackson v. Creston Hills, Inc., 252 Miss. 564, 172 So. 2d 215, 1965 Miss. LEXIS 1130 (Miss. 1965).

Public uses for which land bordering a water supply reservoir may be taken include facilities for visitors, and a wild life sanctuary. Pearl River Valley Water Supply Dist. v. Brown, 248 Miss. 4, 156 So. 2d 572, 1963 Miss. LEXIS 369 (Miss. 1963), cert. denied, 376 U.S. 970, 84 S. Ct. 1136, 12 L. Ed. 2d 84, 1964 U.S. LEXIS 1512 (U.S. 1964).

Persons asserting a constitutional right to damages for a city’s negligently diverting water across their property are not required to elect whether to proceed on the ground of negligence or under the Constitution. McDowell v. Natchez, 242 Miss. 386, 135 So. 2d 185, 1961 Miss. LEXIS 574 (Miss. 1961).

Rights of riparian owners were subordinate to the rights of the state insofar as the soil beneath the navigable waters was concerned and the use of these lands for the benefit of the public was vested in the state and the state had the right to impose further and additional uses upon such property for the benefit of the public and in doing so the state was not taking private property for public use. Xidis v. Gulfport, 221 Miss. 79, 72 So. 2d 153, 1954 Miss. LEXIS 515 (Miss. 1954).

Trial court having found as fact that public necessity existed for water tower, granting of writ of prohibition restraining eminent domain court from condemning particular site selected by city grounded upon availability of other suitable sites was without authority. McLaurin v. State, 41 So. 2d 41 (Miss. 1949).

Decision by city that particular site which it seeks to condemn is best adapted to its proposed public use as site for water tower is legislative and is not reviewable by courts; and city is not to be restricted in its choice between two or more available sites. McLaurin v. State, 41 So. 2d 41 (Miss. 1949).

In city’s proceeding to condemn in part right to construct waterworks system, complainants were entitled to compensation for part of easement taken and damages resulting as consequence. City of Greenwood v. Gwin, 153 Miss. 517, 121 So. 160, 1929 Miss. LEXIS 57 (Miss. 1929).

Damages authorized to be paid by a drainage district does not contemplate the allowance of compensation for damages resulting from negligence. Stephens v. Beaver Dam Drainage Dist., 123 Miss. 884, 86 So. 641, 1920 Miss. LEXIS 90 (Miss. 1920).

22. – – Construction and use of streets and highways, right to due compensation.

It was not error for the special court to preclude testimony on damages to an owner’s remaining property based on loss of access because the owner did not have the right of access along a sight flare in the before condition; if there was no change in the access, there could be no compensation for damages regarding loss of access, and the owner retained access along a road and along the highway outside of the sight flare. Gateway United Methodist Church v. Miss. Transp. Comm'n, 147 So.3d 900, 2014 Miss. App. LEXIS 523 (Miss. Ct. App. 2014).

Special court of eminent domain did not abuse its discretion in disallowing testimony on damages to the remainder of an owner’s for the taking of access along a highway by the Mississippi Transportation Commission (MTC) because the right of MTC to regulate entrances into the highway under the police power was well established and not a compensable taking. Gateway United Methodist Church v. Miss. Transp. Comm'n, 147 So.3d 900, 2014 Miss. App. LEXIS 523 (Miss. Ct. App. 2014).

In a case where a city widened ditches on the owner’s property, a chancery court failed to determine if this exceeded the scope of the city’s prescriptive easement. If, on remand, the chancellor found that the city exceeded the scope of its easement by widening the ditch, the owner would have at least been entitled to damages for the physical occupation of his property, even if the chancellor found no damages to the remainder. Fratesi v. City of Indianola, 972 So. 2d 38, 2008 Miss. App. LEXIS 13 (Miss. Ct. App. 2008).

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).

Where state highway commission wrote landowner that fair market value of property to be taken including all damages was some $40,000, yet when the matter came on for hearing, the commission offered only two appraisers, who testified that the fair market value was $19,000 and $19,700 respectively, and the appraisers testified there were no damages to the remainder despite the facts that the property was being divided into two parcels by a controlled access highway, and the landowner would be forced to travel 3 to 4 miles in going from one parcel to another, the highway would be from 5 to 14 feet above the surrounding land and residences constructed would be greatly below the surface of the highway, and lastly the larger parcel of the remaining property would be completely separated by the highway from the navigable portion of a creek running along the western boundary of the property, an award of $19,700 did not give the landowner full and adequate compensation for the taking of her property. Starkville Coca--Cola Bottling Co. v. Rutherford, 275 So. 2d 381, 1973 Miss. LEXIS 1357 (Miss. 1973).

Where the construction of a frontage road paralleling a limited access highway will substantially impair or damage an abutting property owner’s right of access to the highway in question and will effectively destroy his right of direct and free access thereto as it had previously existed, he is entitled to be compensated for this loss of access as well as for the value of a small parcel of land which will be embraced within the frontage road’s easement. McLaughlin v. State, 210 So. 2d 661, 1968 Miss. LEXIS 1509 (Miss. 1968).

The adoption of a declaratory order by the State Highway Commission wherein a certain highway was designated as a limited access highway did not amount to a taking of an abutting property owner’s right of direct and free access to the highway, nor did it obviate the constitutional necessity of paying just compensation and damages when and if it actually should be taken or damaged. McLaughlin v. State, 210 So. 2d 661, 1968 Miss. LEXIS 1509 (Miss. 1968).

The highway commission is liable in damages to a property lessee where, as a consequence of the reconstruction of a highway, the natural flow of water from the area was caused to increase and carry with it dirt, sand, clay, and other materials so that a lake on the lessee’s land became partially filled. Mississippi State Highway Com. v. Thomas, 202 So. 2d 925, 1967 Miss. LEXIS 1350 (Miss. 1967).

Where the Highway Commission acquired a tract of land for the purpose of removing sand and clay therefrom for use as topping material, and after the property was cleared water ran off more rapidly and in greater quantity and carried with it sand, clay, and debris upon the property of an adjacent owner, the consequential damage was the result of the taking of property by the commission for public use for which recovery could be had under this section. Mississippi State Highway Com. v. Engell, 251 Miss. 855, 171 So. 2d 860, 1965 Miss. LEXIS 911 (Miss. 1965).

Diminution in the flow of traffic past property by changes in the highway system is not such a taking as to require compensation, even though the value of the property may thereby be diminished. Morris v. Mississippi State Highway Com., 240 Miss. 783, 129 So. 2d 367, 1961 Miss. LEXIS 511 (Miss. 1961).

Where a highway, which had not been a limited access highway, was made into a nonaccess highway, this was the equivalent of an appropriation of the abutting property owner’s right to have an easy way of access to the main highway. Carney v. Mississippi State Highway Com., 233 Miss. 598, 103 So. 2d 413, 1958 Miss. LEXIS 422 (Miss. 1958).

In a proceeding to condemn land for the construction of a cloverleaf at the intersection of certain highways, which had not been limited access highways, an instruction that abutting landowner was not entitled to damages resulting solely from inconvenience in entering and leaving his remaining property, provided that the public at large suffered the same inconvenience, was erroneous. Carney v. Mississippi State Highway Com., 233 Miss. 598, 103 So. 2d 413, 1958 Miss. LEXIS 422 (Miss. 1958).

In a proceeding to condemn land for the construction of a cloverleaf at the intersection of certain highways, which had not been limited access highways, an instruction that the Highway Commission could construct the interchange on its right of way without payment of damages to an abutting property owner was erroneous, where it appeared that the construction included a high embankment near the owner’s land, and the commission had revoked the owner’s permit to enter the highway directly, so that his right of access to the highway was impaired. Carney v. Mississippi State Highway Com., 233 Miss. 598, 103 So. 2d 413, 1958 Miss. LEXIS 422 (Miss. 1958).

Since the city had no power to close an alley except upon first making due compensation to the abutting landowners, if the city had closed the alley without making due compensation and the State Highway Commission had entered upon and obstructed it by a dirt embankment, the city and Highway Commission would have been jointly liable. Collins v. Mississippi State Highway Com., 233 Miss. 474, 102 So. 2d 678, 1958 Miss. LEXIS 405 (Miss. 1958).

A right of ingress and egress to an abutting property owner is a property right and cannot be taken without compensation therefor. Mississippi State Highway Com. v. Spencer, 233 Miss. 155, 101 So. 2d 499, 1958 Miss. LEXIS 366 (Miss. 1958).

County has jurisdiction over road so as to make it liable for damage resulting from an overflow caused by improper construction of road where county followed method prescribed by law, Code 1942, § 8314, notwithstanding State Highway Department and WPA workers did part of the actual construction of the road, with permission of county supervisors. Stigall v. Sharkey County, 207 Miss. 188, 42 So. 2d 116, 1949 Miss. LEXIS 328 (Miss. 1949).

A survey by state and aid in construction of a road would not divest county and invest State with jurisdiction of the road since that must be done by affirmative act of Legislature. Stigall v. Sharkey County, 207 Miss. 188, 42 So. 2d 116, 1949 Miss. LEXIS 328 (Miss. 1949).

Relocation of state highway and abandonment by state highway commission of old highway on which property owner’s premises abutted, allegedly depriving the owner of the right of ingress and egress if the old highway should not be maintained, did not render commission liable to property owner since it was under no duty to maintain the old highway, notwithstanding refusal of the county board of supervisors to maintain it. Quin v. Mississippi State Highway Com., 194 Miss. 411, 11 So. 2d 810, 1943 Miss. LEXIS 39 (Miss. 1943).

State Highway Commission was liable to a property owner for damage to her land, resulting from its use thereof for parking road machinery during the course of road construction and as an essential part of its work, over the protest of the landowner. State Highway Com. v. Mason, 192 Miss. 576, 4 So. 2d 345, 6 So. 2d 468, 1941 Miss. LEXIS 6 (Miss. 1941).

Where the evidence in a proceeding for condemnation by the State Highway Commission tended to show that construction of a railroad right of way adjacent to defendants’ land rendered defendants’ access to their land more inconvenient, it was error to instruct the jury that the defendants could not be allowed anything for the railroad’s right of way or for any grading or construction on such right of way, since this section of the Constitution prohibits both the taking and damaging of private property for public use and property may be damaged without the taking. Smith v. Mississippi State Highway Com., 183 Miss. 741, 184 So. 814, 1938 Miss. LEXIS 289 (Miss. 1938).

Landowners held entitled to recover compensation from State Highway Commission for strip of land taken for State highway without condemnation or compensation, as against contention of Commission that it was not at time of taking of land a corporation so that it could be sued, where Commission was thereafter incorporated, since trespass was continuing one so that cause of action arose when Commission was incorporated. State Highway Com. v. Flint, 177 Miss. 830, 172 So. 299, 1937 Miss. LEXIS 166 (Miss. 1937).

County supervisors’ order transferring portion of highway to highway commission sufficiently established county’s claim of ownership, as respects right to compensation for taking. Herod v. Carroll County, 162 Miss. 78, 138 So. 800, 1932 Miss. LEXIS 111 (Miss. 1932).

County cannot assume jurisdiction over highway, and expend public funds in constructing and repairing it, without paying for damages for taking. Herod v. Carroll County, 162 Miss. 78, 138 So. 800, 1932 Miss. LEXIS 111 (Miss. 1932).

The streets of the city may be devoted to any proper use incident to construction and maintenance of a public thoroughfare, but a city is liable for damages inflicted on abutting property by negligent use of street in failing to provide proper drains. City of Laurel v. Hearn, 143 Miss. 201, 108 So. 491, 1926 Miss. LEXIS 256 (Miss. 1926).

Where a levee or a public road constructed by the county which merely obstructs the flow of overflow waters and returns them to the channels earlier than they would be, the county is not liable to damages from a greater overflow on property not contiguous to the highway caused by the levee. Herring v. Lee County, 130 Miss. 1, 93 So. 436, 1922 Miss. LEXIS 179 (Miss. 1922).

A county is liable where its supervisors approved plans and specifications and accepted work for the negligent construction of a roadbed. Covington County v. Watts, 120 Miss. 428, 82 So. 309, 1919 Miss. LEXIS 102 (Miss. 1919).

The laying of an additional track in the street by street railway would not require compensation to abutting owners. Williams v. Meridian L. & R. Co., 110 Miss. 174, 69 So. 596, 1915 Miss. LEXIS 1 (Miss. 1915).

A municipality is not authorized to extend a street over the right of way of a railroad without exercising the right of eminent domain. Illinois C. R. Co. v. State, 94 Miss. 759, 48 So. 561, 1909 Miss. LEXIS 355 (Miss. 1909).

The legislature may authorize the use of the streets of a municipality to a corporation without compensation to the municipality where the use is confined to its right of way. Mayor, etc., of Canton v. Canton Cotton Warehouse Co., 84 Miss. 268, 36 So. 266, 1904 Miss. LEXIS 39 (Miss. 1904).

A county is not liable for the negligent or tortious acts of a road overseer. Rainey v. Hinds County, 79 Miss. 238, 30 So. 636, 1901 Miss. LEXIS 44 (Miss. 1901).

Under this section a county is liable to the owner for damages to land which it wrongfully causes to be covered with water by the improper construction of a public causeway. Raney v. Hinds County, 78 Miss. 308, 28 So. 875, 1900 Miss. LEXIS 115 (Miss. 1900).

23. ––– Change of grade of street or highway, right to due compensation.

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).

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 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).

While municipalities have the right to alter, change, construct and reconstruct its streets and individual litigants have no right to control their action, yet if in so doing private property is damaged the city is liable for such damage under this section. City of Jackson v. Cook, 214 Miss. 201, 58 So. 2d 498, 1952 Miss. LEXIS 459 (Miss. 1952).

A municipality is liable to an abutting property owner who has made valuable improvements according to the prior established grade of a street, when the municipality raises or lowers the grade to the damage of the property owner. City of Water Valley v. Poteete, 203 Miss. 382, 33 So. 2d 794, 1948 Miss. LEXIS 283 (Miss. 1948).

Injury to abutting property by change of grade of highway by municipality or any other person, natural or artificial, held within constitutional provision that private property shall not be “damaged” for public use without due compensation. Parker v. State Highway Com., 173 Miss. 213, 162 So. 162, 1935 Miss. LEXIS 242 (Miss. 1935).

Statutes held to impliedly authorize payment by State Highway Commission for damage to private property incurred through public use, as by change in grade of highway, although no land is actually appropriated. Parker v. State Highway Com., 173 Miss. 213, 162 So. 162, 1935 Miss. LEXIS 242 (Miss. 1935).

Each of different persons having interest in property damaged by change of grade in street is entitled to compensation. Eady v. State, 121 So. 295 (Miss. 1929).

Owners of abutting property injured by city changing grade of street must be compensated for damage. Eady v. State, 121 So. 295 (Miss. 1929).

Under this section a county or municipality by changing the grade of a street or road to the damage of an abutting property owner is liable for such damages. Tishomingo County v. McConville, 139 Miss. 589, 104 So. 452, 1925 Miss. LEXIS 177 (Miss. 1925).

A city must make compensation where it damages private property for the general welfare by a change of grade of street. Funderburk v. Columbus, 117 Miss. 173, 78 So. 1, 1918 Miss. LEXIS 161 (Miss. 1918).

Barricades in a street erected by the city which interfered with egress and ingress from and to plaintiff’s property entitles him to damages, and this is true where the party damaged has only an equitable title and possession of the property. Funderburk v. Columbus, 117 Miss. 173, 78 So. 1, 1918 Miss. LEXIS 161 (Miss. 1918).

An abutting property owner is not estopped from asserting the liability of the city for injury caused by a change in grade of a street by merely signing a petition to have the street paved. Robinson v. Vicksburg, 99 Miss. 439, 54 So. 858, 1911 Miss. LEXIS 205 (Miss. 1911).

Although a city authorized a railroad to raise a street grade to the damage of abutting property owners, the railroad company will be liable for damages. Yazoo & M. V. R. Co. v. Lefoldt, 87 Miss. 317, 39 So. 459, 1905 Miss. LEXIS 110 (Miss. 1905); Brahan v. Meridian Home Tel. Co., 97 Miss. 326, 52 So. 485, 1910 Miss. LEXIS 242 (Miss. 1910).

24. ––– Vacation or closing of street or highway, or railroad, right to due compensation.

A circuit court erred in reducing the acreage of a railroad right-of-way sought to be condemned by the State for a penitentiary based on its finding that the State had shown no need for more than a short stretch of the right-of-way where the circuit court found neither fraud nor clear abuse of discretion. Governor's Office of General Services v. Carter, 573 So. 2d 736, 1990 Miss. LEXIS 839 (Miss. 1990).

This section does not require that a person who seeks to vacate a street pay compensation to persons claiming damage from the vacation. Burkett v. Ross, 227 Miss. 315, 86 So. 2d 33, 1956 Miss. LEXIS 691 (Miss. 1956).

Where there was a finding by chancellor that closing of streets was for public good, in a suit by landowners, whose land did not abut on the closed section of the street, closing ordinance did not violate the constitution. Puyper v. Pure Oil Co., 215 Miss. 121, 60 So. 2d 569, 1952 Miss. LEXIS 545 (Miss. 1952).

The adoption of street closing ordinance was itself a determination by the mayor and board of aldermen that the public interest and welfare required that the street be closed. Puyper v. Pure Oil Co., 215 Miss. 121, 60 So. 2d 569, 1952 Miss. LEXIS 545 (Miss. 1952).

Damages of $5,000 for a condemned highway right of way across middle of a farm for a distance of a mile and a half, consisting of 35.1 acres, was sustained by the evidence, where witnesses estimated the value of the land taken and the reduced value of that remaining at from $2,000 to $15,000, especially where jurors personally inspected and examined the land. Mississippi State Highway Com. v. Treas, 197 Miss. 670, 20 So. 2d 475, 1945 Miss. LEXIS 305 (Miss. 1945).

Upon abandonment of old highway on which property owner’s premises abutted and relocation of state highway by state highway commission, the mere fact that such owner’s premises have been left off the new paved highway does not of itself afford a legal basis for the recovery of damages; and the damages thereby sustained are not recoverable so long as there remains a public highway, maintained as such in substantially the same location where the old highway existed. Quin v. Mississippi State Highway Com., 194 Miss. 411, 11 So. 2d 810, 1943 Miss. LEXIS 39 (Miss. 1943).

A county is liable for damages to an abutting landowner for abandoning a public highway. Jackson v. Monroe County, 124 Miss. 264, 86 So. 769, 1920 Miss. LEXIS 505 (Miss. 1920).

An abutting owner is entitled to compensation where to his damage the county has vacated a country road depriving him of access to a farm. Morris v. Covington County, 118 Miss. 875, 80 So. 337, 1918 Miss. LEXIS 142 (Miss. 1918).

The courts have supervisory power over closing an alley by municipal ordinance and it must be judicially determined that the use is a public one. Polk v. Hattiesburg, 109 Miss. 872, 69 So. 675, 1915 Miss. LEXIS 236 (Miss. 1915).

Where a municipality closes and vacates an established street, it deprives the owner of abutting lots of a right which is property, and which cannot be taken except on due compensation being first made as provided in this section. Laurel Improv. Co. v. Rowell, 84 Miss. 435, 36 So. 543, 1904 Miss. LEXIS 69 (Miss. 1904).

25. ––– Additional public use of property devoted to public use, right to due compensation.

Where an abutting property owner’s predecessor in title had conveyed a highway right of way to the state highway commission, and subsequently a gas company, pursuant to permission obtained from the state highway commission, laid a gas distribution line wholly within the right of way, the abutting property owner was not entitled to rent from the gas company, under evidence showing that his property was not damaged or depreciated in value by the use of the right of way for the distribution line; nor was there violation of the abutting property owner’s rights under § 17 of the Mississippi Constitution. Mississippi Valley Gas Co. v. Boydstun, 230 Miss. 11, 92 So. 2d 334, 1957 Miss. LEXIS 340 (Miss. 1957).

Where a right of way was conveyed to the state highway commission for highway purposes, and electric power company constructed power lines on the highway right of way, the landowner could recover damages for the additional servitude on the ground that private property should not be taken or damaged for public use except on due compensation. Berry v. Southern Pine Electric Power Asso., 222 Miss. 260, 76 So. 2d 212, 1954 Miss. LEXIS 644 (Miss. 1954).

Where state constructed a bridge across the bay of St. Louis, which bridge was partly across area of riparian owners who had been granted the privilege and license of planting and gathering oysters and erecting bath-houses and other structures, the state by building this bridge exercised its power to impose an additional public use upon a property which was already set aside for public purposes and the exercise of this power was not taking of property for which compensation must be made. Crary v. State Highway Com., 219 Miss. 284, 68 So. 2d 468, 1953 Miss. LEXIS 389 (Miss. 1953).

This section of the Constitution prohibits the taking of private property for public use without compensation but does not prevent the imposition of an additional public use upon property already set aside for a public purpose. Bailey v. Pierce, 194 So. 743 (Miss. 1940).

The public interest is subject to legislative control, and the legislature may devote public property to an additional public use without compensation for such use. Bailey v. Pierce, 194 So. 743 (Miss. 1940).

Under this section the State Highway Commission was not required to make compensation to the county for the use of school lands because of construction across such lands of a public highway. Bailey v. Pierce, 194 So. 743 (Miss. 1940).

26. ––– Measure of compensation or damages, right to due compensation.

Landowner’s expert appraiser’s opinion as to the diminution in value of the remainder of the landowner’s property occasioned by the taking of an easement for a pipeline should have been excluded under Miss. R. Evid. 702 because he failed to offer admissible market-data or comparable-sales evidence. Gulf S. Pipeline Co., LP v. Pitre, 35 So.3d 494, 2010 Miss. LEXIS 199 (Miss. 2010).

Company, which was leasing the property that was taken by the Mississippi Transportation Commission, was not entitled to any of the condemnation award of the lessor because it had no leasehold interest as its leases had terminated. Thus, the special court properly granted the Commission’s motion for partial summary judgment finding that (1) the company was only entitled to compensation for the value of the billboards on the property that was taken and (2) compensation could only be calculated using the cost analysis, which would provide the company with the new cost of its signs, less depreciation. Eller Media Co. v. Miss. Transp. Comm'n, 882 So. 2d 198, 2004 Miss. LEXIS 973 (Miss. 2004).

In an eminent domain case, the special court properly granted the Mississippi Transportation Commission’s motion for summary judgment awarding the company, which was leasing the property that was taken and on which it had placed three billboard signs, $ 57,700 for each billboard sign because the parties had entered into and filed a stipulation that the cost new, less depreciation, for each billboard on the property was $ 57,700. Eller Media Co. v. Miss. Transp. Comm'n, 882 So. 2d 198, 2004 Miss. LEXIS 973 (Miss. 2004).

Where jury’s verdict of amount owed to landowners for property taken by the State was between the values set by all three experts, the verdict was not contrary to the weight of the credible evidence, or the result of bias, passion, or prejudice. Gautier v. Miss. Transp. Comm'n, 839 So. 2d 588, 2003 Miss. App. LEXIS 154 (Miss. Ct. App. 2003).

Where a contractor demolished more property than was condemned, such additional property was not taken without compensation, and a new trial to determine the value of such property was not required; instead, the property owner’s remedy was an action for the damage to the remaining property. Checkers Drive-In Restaurants, Inc. v. Mississippi Transp. Comm'n, 755 So. 2d 1238, 2000 Miss. App. LEXIS 22 (Miss. Ct. App. 2000).

Where public improvements are to be financed by a special assessment upon a class of property owners, a condemnee may not claim the present value of the assessment in diminution of the value of the remainder of his or her property after a portion has been taken. Dear v. Madison County by & Through Madison County Bd. of Supervisors, 649 So. 2d 1260, 1995 Miss. LEXIS 32 (Miss. 1995).

Neither access to property remaining after taking for public road nor parking on property are attributes or capabilities of land subject to separate valuation in eminent domain proceedings; they may be considered only insofar as they affect value of property remaining after taking. Trustees of Wade Baptist Church v. Mississippi State Highway Com., 469 So. 2d 1241, 1985 Miss. LEXIS 2094 (Miss. 1985).

In arriving at fair market value of entire tract before taking, evidence of the reproduction cost of buildings on the property taken is admissible as a factor to be considered by the jury in arriving at a fair market value; although whether testimony relative to the reproduction cost is admissible in a given case lies largely in the sound discretion of the trial judge, such testimony is always admissible when it is established that the improvements are reasonably adopted to the land and the depreciated value of the improvement adds to the value of the entire property by the amount of their depreciated value; when such testimony is admitted, the condemnor is entitled to such instruction that such testimony is not evidence of market value but only a factor to be considered along with the other testimony in arriving at a fair market value. Mississippi State Highway Com. v. Owen, 308 So. 2d 228, 1975 Miss. LEXIS 1854 (Miss. 1975).

Although there is a danger in admitting testimony as to specific items of damage in an eminent domain proceeding, in that it could result in the pyramiding of damages by the jury, such testimony is competent when related to the before and after value rather than as a basis for a separate verdict, and in a proceeding involving the taking of a grocery store, testimony as to the cost of removing the stock of goods and store fixtures from the premises was admissible, as a consequence of the taking and as an element of damage. Blackwelder v. Bryant, 246 So. 2d 512, 1971 Miss. LEXIS 1400 (Miss. 1971).

In arriving at the before and after value in an eminent domain proceeding, a witness may testify as to any injuries which depreciate the value of the remaining land, provided that the witness connects such injuries with the before and after value and considers them not as a specific item of damage but as bearing on such market value. Blackwelder v. Bryant, 246 So. 2d 512, 1971 Miss. LEXIS 1400 (Miss. 1971).

The acceptance of testimony as to the value of condemned land on the date of hearing was error as contrary to the rule establishing the date of filing of the condemnation proceeding as the proper date to be used to determine values by the “before and after” method, but such error was harmless where it was not contended that there was any change in market value between the date of filing and the date of hearing. Mississippi State Highway Com. v. Frierson, 240 So. 2d 457, 1970 Miss. LEXIS 1295 (Miss. 1970).

In an action for damages brought by lessees against the highway commission for damages, it was reversible error for the trial court to give conflicting instructions on the measure of damages recoverable. Mississippi State Highway Com. v. Thomas, 202 So. 2d 925, 1967 Miss. LEXIS 1350 (Miss. 1967).

A proper instruction as to the measure of damages where a leasehold has been damaged without an actual taking is the difference between the fair market value of the leasehold before and after the completion of the work for public use from which the damage results. Mississippi State Highway Com. v. Thomas, 202 So. 2d 925, 1967 Miss. LEXIS 1350 (Miss. 1967).

In the absence of some stipulation to the contrary, the date of the institution of the suit in the special eminent domain court is the date of the taking, and it is the value of the land immediately before this taking which this section contemplates will constitute the “before the taking” computation. Pearl River Valley Water Supply Dist. v. Wood, 252 Miss. 580, 172 So. 2d 196, 1965 Miss. LEXIS 1131 (Miss. 1965).

The anticipated profits from a cemetery business cannot be taken into consideration in determining the fair, cash market value of the land sought to be acquired. Green Acres Memorial Park, Inc. v. Mississippi State Highway Com., 246 Miss. 855, 153 So. 2d 286, 1963 Miss. LEXIS 514 (Miss. 1963).

Save in exceptional cases where part of a tract is taken, due compensation is the value of property taken and the damage done to the fair market value of the entire tract by the taking. Green Acres Memorial Park, Inc. v. Mississippi State Highway Com., 246 Miss. 855, 153 So. 2d 286, 1963 Miss. LEXIS 514 (Miss. 1963).

Any type of damage may be considered insofar as it affects the fair market value of the remaining property. Mississippi State Highway Com. v. Colonial Inn, Inc., 246 Miss. 422, 149 So. 2d 851, 1963 Miss. LEXIS 459 (Miss. 1963).

The cost of removing personal property from the premises condemned may be shown as bearing upon the question of value. Mississippi State Highway Com. v. Rogers, 242 Miss. 439, 136 So. 2d 216, 1961 Miss. LEXIS 581 (Miss. 1961).

The compensation awarded the landowner in an eminent domain proceeding is conclusively presumed to include all damages resulting to him from the proper use of the land taken. Mississippi State Highway Com. v. Tomlinson, 223 Miss. 623, 78 So. 2d 797, 1955 Miss. LEXIS 417 (Miss. 1955).

Where land was condemned to raise grade of highway, a judgment in the eminent domain covered all damages which might reasonably result to the property owners from the construction of the highway and the property owners were not entitled to any further damage resulting from the second elevation of the grade of the highway. Mississippi State Highway Com. v. Tomlinson, 223 Miss. 623, 78 So. 2d 797, 1955 Miss. LEXIS 417 (Miss. 1955).

In eminent domain proceedings, under unusual conditions where the before and after values test is inapplicable to the peculiar facts, court will adopt rule supported by reason, logic and common sense, designed to result, as far as may be humanly possible, in ascertainment of true, accurate damage suffered by property owner. Baker v. Mississippi State Highway Com., 204 Miss. 166, 37 So. 2d 169, 1948 Miss. LEXIS 352 (Miss. 1948).

In eminent domain proceedings, measure of damage to property not actually taken is difference between fair market value of such property before, as compared to such value after, the taking. Baker v. Mississippi State Highway Com., 204 Miss. 166, 37 So. 2d 169, 1948 Miss. LEXIS 352 (Miss. 1948).

In eminent domain proceedings, measure of damage to property not actually taken, if property has no market value, is difference between fair, reasonable value of such property before, as compared to such value after, the taking. Baker v. Mississippi State Highway Com., 204 Miss. 166, 37 So. 2d 169, 1948 Miss. LEXIS 352 (Miss. 1948).

In eminent domain proceedings, jury must base its verdict on difference in before and after value of property, but replacement, reconstruction and remedying costs may be shown and used as bearing upon accuracy, or inaccuracy, of amount of damage deduced from proof of comparative values. Baker v. Mississippi State Highway Com., 204 Miss. 166, 37 So. 2d 169, 1948 Miss. LEXIS 352 (Miss. 1948).

Landowner, in condemnation proceedings, cannot recover damages for specific injuries to his remaining land, but evidence of such injuries is competent if, but not unless, such would affect the market value of the remaining land. Mississippi State Highway Com. v. Treas, 197 Miss. 670, 20 So. 2d 475, 1945 Miss. LEXIS 305 (Miss. 1945).

Admitting evidence, in proceedings to condemn highway right of way, of specific injuries to remaining land, such as cost of rebuilding and removing barns and silo, digging new pools, and constructing three miles of fence, was not error where landowner was careful to connect the specific items of cost with, and have witnesses consider them only as bearing upon, market value of the remaining land. Mississippi State Highway Com. v. Treas, 197 Miss. 670, 20 So. 2d 475, 1945 Miss. LEXIS 305 (Miss. 1945).

It was the province of the jury to fix damages from conflicting testimony in condemnation proceedings by state highway commission. Mississippi State Highway Com. v. Treas, 197 Miss. 670, 20 So. 2d 475, 1945 Miss. LEXIS 305 (Miss. 1945).

Court may, in a proper case, allow interest as part of the damages or compensation to which the owner is entitled when property is taken under power of eminent domain. Mississippi State Highway Com. v. Treas, 197 Miss. 670, 20 So. 2d 475, 1945 Miss. LEXIS 305 (Miss. 1945).

Question in condemnation proceeding of prior interest and rate thereof, as element of damage, should have been admitted to and passed upon by the jury, and the amount of the verdict constituted the total damage fixed by the jury, and the trial judge had no power to add thereto prior interest, nor to fix the rate thereof. Mississippi State Highway Com. v. Treas, 197 Miss. 670, 20 So. 2d 475, 1945 Miss. LEXIS 305 (Miss. 1945).

Upon relocation of state highway and abandonment of old highway, allegedly depriving property owner of right of egress and ingress of old highway should not be repaired and maintained, the proper measure of damages is not the difference in the value of plaintiff’s property as now located by reason of such relocation and abandonment and its value if it abutted on the new highway, but it is the difference in its value as now located and the amount that it would be worth if the old highway were maintained as theretofore. Quin v. Mississippi State Highway Com., 194 Miss. 411, 11 So. 2d 810, 1943 Miss. LEXIS 39 (Miss. 1943).

Since due compensation hereunder entails the ascertainment of such compensation, and the duty of ascertaining the amount is necessarily cast upon the parties seeking to condemn or who have damaged the property for public use, the full measure of due compensation required hereunder includes the cost incurred in its ascertainment. State Highway Com. v. Mason, 192 Miss. 576, 4 So. 2d 345, 6 So. 2d 468, 1941 Miss. LEXIS 6 (Miss. 1941).

Due compensation for the taking or damaging of property for public use includes an allowance of five per cent upon the amount of an affirmed judgment against the condemning authority. State Highway Com. v. Mason, 192 Miss. 576, 4 So. 2d 345, 6 So. 2d 468, 1941 Miss. LEXIS 6 (Miss. 1941).

Due compensation hereunder includes interest at the legal rate on a judgment obtained for damages from the date of the original rendition thereof. State Highway Com. v. Mason, 192 Miss. 576, 4 So. 2d 345, 6 So. 2d 468, 1941 Miss. LEXIS 6 (Miss. 1941).

Where the rule that the measure of damages in an eminent domain proceeding is the difference between the fair market value of the property before the taking and the fair market value after the taking, is applicable, the owner of the land cannot recover damages for specific injuries to the remaining land, although evidence of such injuries is competent if, but not unless, they would affect the market value of the remaining land. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

Due compensation hereunder is a judicial and not a legislative question. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

The market value of property is the price which it will bring when it is offered by sale by one who desires, but is not obliged, to sell it, and is bought by one who is under no necessity of having it. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

The formula for measuring compensation to be awarded the owner in an eminent domain proceeding, when a part of his land is taken for public use is: When part of a larger tract of land is taken for public use, the owner should be awarded the difference between the fair market value of the whole tract immediately before the taking, and the fair market value of that remaining immediately after the taking, without considering the general benefits or injuries resulting from the use to which the land taken is to be put, that are shared by the general public. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

The formula or the rule of before and after taking, must be construed in connection with the facts of the case the court is then considering and the particular questions there presented for decision. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

The compensation awarded the landowner in an eminent domain proceeding is conclusively presumed to include all damages resulting to him from the proper use of the land taken, as in the case of a highway, the proper construction of the contemplated highway. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

The many items which may arise in a highway condemnation case as to depreciation caused property are never competent as separate items of recoverable damage. State Highway Com. v. Day, 181 Miss. 708, 180 So. 794, 1938 Miss. LEXIS 111 (Miss. 1938).

For measure of damages, see Richardson v. Levee Comm'rs, 68 Miss. 539, 9 So. 351, 1891 Miss. LEXIS 9 (Miss. 1891).

The legislature may direct the appointment of commissioners by the chancery court to estimate damages. New Orleans, B. R., V. & M. R. Co. v. Drake, 60 Miss. 621, 1882 Miss. LEXIS 104 (Miss. 1882).

27. – – Burden of proof, right to due compensation.

Because an expert in an eminent domain action had little or no knowledge as to the valuation of a business sign based on the cost approach, his testimony based on a quote from a sign company should have been stricken since he was merely acting as a conduit for hearsay about another expert’s opinion, in violation of Miss. R. Evid. 703; however, additur was not an appropriate remedy in this case because the jury verdict was based on inadmissible evidence. Martin v. Miss. Transp. Comm'n, 953 So. 2d 1163, 2007 Miss. App. LEXIS 225 (Miss. Ct. App. 2007).

The condemnor has the burden of proving the value of the condemned property. Ellis v. Mississippi State Highway Com., 487 So. 2d 1339, 1986 Miss. LEXIS 2456 (Miss. 1986).

Additur was not appropriate in an eminent domain case because the damages awarded to two land owners were not contrary to the overwhelming weight of the evidence; the admissibility of an expert’s opinion regarding the value of the land was waived, so the jury properly took into account the valuation evidence presented by both parties in making its decision. Martin v. Miss. Transp. Comm'n, 953 So. 2d 1163, 2007 Miss. App. LEXIS 225 (Miss. Ct. App. 2007).

In action by owner, or lessee, against State Highway Commission for damages to plaintiff’s property and business resulting from raising of grade of highway adjoining plaintiff’s property, burden is on plaintiff to show legal damage and extent thereof. Baker v. Mississippi State Highway Com., 204 Miss. 166, 37 So. 2d 169, 1948 Miss. LEXIS 352 (Miss. 1948).

Burden of proof is on condemnor on issue of damages sustained by the taking. Mississippi State Highway Com. v. Treas, 197 Miss. 670, 20 So. 2d 475, 1945 Miss. LEXIS 305 (Miss. 1945).

In an eminent domain proceeding by the state highway commission to condemn land for the construction of a state highway, the burden of proof on the question of damages was on the highway commission, and the court below did not err in refusing an instruction that the burden of proof was upon the landowner to establish by a preponderance of the evidence the damages sustained by the taking of the property for a public highway. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

28. Actions and remedies–In general.

Landowners’ inverse condemnation claim against the State of Mississippi did not fail as a matter of law due to the land in question being public trust tidelands because there was a factual dispute as to the boundary of the public trust tidelands, which a jury resolved. State v. Murphy, 202 So.3d 1243, 2016 Miss. LEXIS 446 (Miss. 2016).

When a developer sued a city, the city’s public utilities commission, and a utilities department (department) for damage to the developer’s property in installing utility lines, the developer’s inverse condemnation failed because it was not alleged that the damage was committed for a “public use.” Kelley v. Corinth PUC, 200 So.3d 1107, 2016 Miss. App. LEXIS 36 (Miss. Ct. App.), cert. denied, — So.3d —, 2016 Miss. LEXIS 393 (Miss. 2016), cert. denied, 203 So.3d 598, 2016 Miss. LEXIS 394 (Miss. 2016), cert. denied, 203 So.3d 599, 2016 Miss. LEXIS 403 (Miss. 2016).

Suit against the state transportation commission, alleging a taking without just compensation in violation of Miss. Const. Art. 3, § 17, need not have been brought under the Mississippi Tort Claims Act, and thus was not time-barred under Miss. Code Ann. §11-46-11(3), because the constitutional provision was self-executing. McLemore v. Miss. Transp. Comm'n, 992 So. 2d 1107, 2008 Miss. LEXIS 305 (Miss. 2008).

While the question of whether the taking of property is necessary is a legislative question which the courts should not disturb absent fraud or abuse of discretion, the question of whether there is a public use is a judicial question without regard to legislative assertions that the use is public; thus, a trial court did not err when it determined whether a landowner’s property was in fact taken for a contemplated public use without giving discretion to the city legislature’s determination of public necessity. Mayor of Vicksburg v. Thomas, 645 So. 2d 940, 1994 Miss. LEXIS 548 (Miss. 1994).

A trial court did not err by determining that the condemnor city, rather than the landowner, had the burden of proving that the landowner’s property was being taken for a public use, even though the city legislature had made a determination of public necessity. Mayor of Vicksburg v. Thomas, 645 So. 2d 940, 1994 Miss. LEXIS 548 (Miss. 1994).

In a suit to enjoin the county sheriff and members of the board of supervisors of the county from removing top soil from a portion of land leased to plaintiff and to nullify an order by the board of supervisors cancelling plaintiff’s lease, the chancery court had jurisdiction to hear the dispute and award damages against the governmental subdivision in order to provide a remedy for plaintiff’s constitutionally guaranteed right against taking of property without payment of due compensation therefor. Williams v. Walley, 295 So. 2d 286, 1974 Miss. LEXIS 1500 (Miss. 1974).

Landowners, joining in equity suit to abate common nuisance and for damages, have right to have their controversy adjudicated in court of competent jurisdiction, and chancery court in which suit was brought has jurisdiction to proceed, after settlement of suit on abatement of nuisance issue, to full and complete determination of all remaining issues, even though they may cover only legal rights and require granting of none of legal remedies. McClendon v. Mississippi State Highway Com., 205 Miss. 71, 38 So. 2d 325, 1949 Miss. LEXIS 413 (Miss. 1949).

29. – – Actions by or against political subdivisions, actions and remedies.

Property owners’ inverse condemnation action against a city was time-barred because each heavy rain that caused a city ditch to damage the owners’ property was not a separate taking, as the taking began when the owners knew damage had occurred. City of Tupelo v. O'Callaghan, 208 So.3d 556, 2017 Miss. LEXIS 19 (Miss. 2017).

Property owners’ inverse condemnation action against a city was time-barred because (1) the language “without limitation or qualification” in an opinion interpreting Miss. Const. art. 3, § 17 only applied to the type of damage, (2) no Mississippi authority held otherwise, so no constitutional rights were violated or materially impaired, and (3) the cause of action accrued upon discovering an injury, not the injury’s cause. City of Tupelo v. O'Callaghan, 208 So.3d 556, 2017 Miss. LEXIS 19 (Miss. 2017).

It was not error to hold the State of Mississippi completely liable for an inverse condemnation claim when a city took possession of the land for construction of a harbor, and the State was not involved in the harbor project, because the State assumed ownership of the property and leased the property to the city. State v. Murphy, 202 So.3d 1243, 2016 Miss. LEXIS 446 (Miss. 2016).

Because property owners failed to plead a taking claim in their complaint, they were barred from attempting to argue that theory on appeal; even a liberal reading of the owners’ complaint would not and did not put Mississippi Department of Transportation on notice of a constitutional taking claim. Garretson v. Miss. DOT, 156 So.3d 241, 2014 Miss. LEXIS 579 (Miss. 2014).

Developer’s regulatory takings claim, that a city erroneously applied an otherwise valid flood plain ordinance, was unripe for review because, when the developer was notified that Moderate Rehabilitation program contracts related to an apartment complex the developer owned would not be renewed, it suspended plans to rehabilitate the complex and abandoned all avenues of review that were available to it; consequently, the court was unable to evaluate the extent to which the city interfered with the developer’s reasonable investment-backed expectations because no final decision had been made, nor even sought, regarding the application of the flood-zone ordinance. Urban Developers LLC v. City of Jackson, 468 F.3d 281, 2006 U.S. App. LEXIS 26435 (5th Cir. Miss. 2006).

To the extent that a developer alleged an ordinary takings claim against a city, such claim was unripe because the city had not made a final decision on whether to condemn the developer’s property, and had done nothing more than state its intent to proceed with condemnation. Urban Developers LLC v. City of Jackson, 468 F.3d 281, 2006 U.S. App. LEXIS 26435 (5th Cir. Miss. 2006).

Regional housing authority, in distributing alternative housing vouchers to the tenants of a flooded apartment complex, did not effect a taking under Mississippi law because the housing authority did not force the tenants to abandon their leases or interfere with the owner/developer’s reasonable investment-backed expectations since the tenants were simply given an option to either accept the voucher and use it elsewhere, or to decline the voucher and remain under their leases at the apartment complex. Urban Developers LLC v. City of Jackson, 468 F.3d 281, 2006 U.S. App. LEXIS 26435 (5th Cir. Miss. 2006).

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).

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).

The theory of the allowance of damages under this section is not maintainable under a declaration grounded directly and solely upon the negligence of a municipality, since the defenses available to the defendant in a suit for damages under this provision, and a suit based on the theory of negligence, are entirely different. City of Meridian v. Peavy, 188 Miss. 168, 194 So. 595, 1940 Miss. LEXIS 27 (Miss. 1940).

Suit against State Highway Commission will lie only for liability imposed by statute, though Commission is body corporate and may sue and be sued. State Highway Com. v. Knight, 170 Miss. 60, 154 So. 263, 1934 Miss. LEXIS 97 (Miss. 1934).

30. ––– Determination of public use, actions and remedies.

The evidence was sufficient to support a trial court’s dismissal of a city’s condemnation petition based on a finding of no public use where the city’s contract with a gaming corporation for use of the land for the alleged purpose of urban renewal did not comply with §43-35-19(b)’s competitive bidding requirement, and the city failed to provide conditions, restrictions, or covenants in its contract with the gaming corporation to ensure that the property would be used for the purpose of gaming enterprise or other related establishments. Mayor of Vicksburg v. Thomas, 645 So. 2d 940, 1994 Miss. LEXIS 548 (Miss. 1994).

In a hearing on a motion to dismiss an eminent domain action on the ground that the taking was not one for public use, the mandate of Article 3, § 17 of the Mississippi Constitution that the question of public use be decided as a judicial, not a legislative, question was not complied with where there was merely a legislative assertion of public use but no evidence that the use would in fact be public. Morley v. Jackson Redevelopment Auth., 632 So. 2d 1284, 1994 Miss. LEXIS 75 (Miss. 1994).

31. ––– Injunctions, actions and remedies.

Equity has jurisdiction, on grounds of injunctive relief and to prevent multiplicity of suits, of suit filed by a number of landowners against State Highway Commission for injunction to restrain continuation by defendant of common nuisance caused by obstruction of water course through respective lands of plaintiffs and for damages done to their crops and lands. McClendon v. Mississippi State Highway Com., 205 Miss. 71, 38 So. 2d 325, 1949 Miss. LEXIS 413 (Miss. 1949).

Where officers or agents of State, as such, seize or trespass upon private property, owner can maintain suit to eject officers or agents or to enjoin further trespass. State Mineral Lease Com. v. Lawrence, 171 Miss. 442, 157 So. 897, 1934 Miss. LEXIS 265 (Miss. 1934).

The use to be made of the property to be taken can only be raised by injunction. Vinegar Bend Lumber Co. v. Oak Grove & G. R. Co., 89 Miss. 84, 43 So. 292, 1906 Miss. LEXIS 98 (Miss. 1906).

32. ––– Negligence, actions and remedies.

Property owners’ alleged personal injury damages were not recoverable under Miss. Const. art. 3, § 17 because nothing in that provision provided a remedy for injuries outside the scope of physical damage to property. City of Tupelo v. O'Callaghan, 208 So.3d 556, 2017 Miss. LEXIS 19 (Miss. 2017).

Where plaintiffs in declaration in a suit against city allege that the city was liable for negligently flooding plaintiff’s property by draining water from a street, and plaintiff also alleged liability under the Constitution, the two grounds are not inconsistent, because negligence charge is simply an enlargement of the charge of damage without negligence. City of Jackson v. Cook, 214 Miss. 201, 58 So. 2d 498, 1952 Miss. LEXIS 459 (Miss. 1952).

This section was not applicable to a suit to recover damages to plaintiff’s property grounded on a municipality’s negligence in constructing and maintaining a culvert and sewer, so as to justify an instruction that plaintiff was entitled to recover unless plaintiff’s damage was caused solely by an unprecedented rainfall. City of Meridian v. Peavy, 188 Miss. 168, 194 So. 595, 1940 Miss. LEXIS 27 (Miss. 1940).

ATTORNEY GENERAL OPINIONS

City must reimburse individuals for water line laid and maintained at expense of individuals, where land was later annexed by city; however, owners of water line may dedicate water line to municipality which will then maintain water line as part of municipal water system. Belk, Oct. 14, 1992, A.G. Op. #92-0699.

RESEARCH REFERENCES

ALR.

Profits derived from business conducted on property taken by eminent domain as evidence of market value. 7 A.L.R. 163.

Exercise of eminent domain for purpose of irrigating land of private owner. 9 A.L.R. 583, 27 A.L.R. 519.

Right to condemn property previously condemned or purchased for public use, but not actually so used. 12 A.L.R. 1502.

Right of abutting owner for compensation to railroad in street under constitutional provision against damaging property for public use without compensation. 22 A.L.R. 145.

Right to use or permit use of street or highway for private telephone or telegraph line. 34 A.L.R. 405.

Liability of municipality for damages or compensation for abating as a nuisance what is not in fact such. 46 A.L.R. 362.

Eminent domain: combination of public and private uses or purposes. 53 A.L.R. 9.

Public benefit or convenience as distinguished from use by the public as ground for the exercise of the power of eminent domain. 54 A.L.R. 7.

Furnishing electricity to public as public use or purpose for which power of eminent domain may be exercised. 58 A.L.R. 787.

Protection of rights of mortgagee in eminent domain proceedings. 58 A.L.R. 1534; 110 A.L.R. 542; 154 A.L.R. 1110.

Power to extend boundaries of municipal corporation. 64 A.L.R. 1335.

Exercise of eminent domain for purpose of library. 66 A.L.R. 1496.

Exercise of power of eminent domain for purposes of logging road or logging railroad. 86 A.L.R. 552.

Exercise of eminent domain for purpose of increasing right or interest which petitioner already owns or relieving the property or petitioner of some burden or obligation in respect of property. 108 A.L.R. 1522.

Right to take property under eminent domain as affected by fact that property is already devoted to cemetery purposes. 109 A.L.R. 1502.

Right to abandon and effect of abandonment of eminent domain proceedings. 121 A.L.R. 12.

Injunction against exercise of power of eminent domain. 133 A.L.R. 11; 93 A.L.R.2d 465.

Lack of diligence to contest a public use on ground that compensation has not been made for private property or rights as affecting right to relief. 133 A.L.R. 11; 93 A.L.R.2d 465.

Deduction of benefits in determining compensation or damages in eminent domain. 145 A.L.R. 7.

Increment to value, from projects for which land is condemned, as a factor in fixing compensation. 147 A.L.R. 66.

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.

Electric light or power line in street or highway as additional servitude. 58 A.L.R.2d 525.

Interference with view as matter for consideration in eminent domain. 84 A.L.R.2d 348.

Valuation at time of original wrongful entry by condemnor or at time of subsequent initiation of condemnation proceedings. 2 A.L.R.3d 1038.

Depreciation in value, from project for which land is condemned, as a factor in fixing compensations. 5 A.L.R.3d 901.

Right to condemn property in excess of needs for a particular public purpose. 6 A.L.R.3d 297.

Zoning as a factor in determination of damages in eminent domain. 9 A.L.R.3d 291.

Eminent domain: deduction of benefits in determining compensation or damages in proceedings involving opening, widening, or otherwise altering highway. 13 A.L.R.3d 1149.

Propriety and effect, in eminent domain proceeding, of argument or evidence as to source of funds to pay for property. 19 A.L.R.3d 694.

Substitute condemnation: power to condemn property or interest therein to replace other property taken for public use. 20 A.L.R.3d 862.

Traffic noise and vibration form highway as element of damages in eminent domain. 51 A.L.R.3d 860.

Condemned property’s location in relation to proposed site of building complex or similar improvement as factor in fixing compensation. 51 A.L.R.3d 1050.

Good will or “going concern” value as element of lessee’s compensation for taking leasehold in eminent domain. 58 A.L.R.3d 566.

Loss of liquor license as compensable in condemnation proceeding. 58 A.L.R.3d 581.

Compensation for diminution in value of the remainder of property resulting from taking or use of adjoining land of others for the same undertaking. 59 A.L.R.3d 488.

Eminent domain: Consideration of fact that landowner’s remaining land will be subject to special assessment in fixing severance damages. 59 A.L.R.3d 534.

Assemblage or plottage as factor affecting value in eminent domain proceedings. 8 A.L.R.4th 1202.

Seizure of property as evidence in criminal prosecution or investigation as compensable taking. 44 A.L.R.4th 366.

Inverse condemnation state court class actions. 49 A.L.R.4th 618.

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.

Application of Kelo v. City of New London, 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005), to “Public Use” Restrictions in Federal and State Constitutions Takings Clauses and Eminent Domain Statutes. 21 A.L.R.6th 261.

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.

Jury trial under Rule 71A(h) of Federal Rules of Civil Procedure (Fed. Rules Civ. Proc., Rule 71A(h), 28 U.S.C.S.) in condemnation proceedings by United States. 164 A.L.R. Fed. 341.

Am. Jur.

26 Am. Jur. 2d, Eminent Domain §§ 1 et seq.

9 Am. Jur. Pl & Pr Forms (Rev), Eminent Domain, Form 31.1 (Complaint, petition, or declaration–For condemnation–By state agency–For state transportation facility).

10 Am. Jur. Proof of Facts 2d, Eminent Domain: Lack of Necessity for Taking Property, §§ 9 et seq. (proof of lack of reasonable necessity for taking property for urban renewal project).

CJS.

C.J.S. Eminent Domain §§ 27, 29, 71 to 200.

Lawyers’ Edition.

Public condemnee held entitled to no more than fair market value of condemned property under Fifth Amendment. 80 L. Ed. 2d 376.

Governmental regulation of place of amusement, entertainment, or recreation as violating rights of owner or operator under equal protection clause of Federal Constitution’s Fourteenth Amendment-Supreme Court cases. 104 L. Ed. 2d 1078.

Law Reviews.

Evidence of Business Factors in Condemnation Proceedings Concerning Certificates of Public Convenience and Necessity. 52 Miss. L. J. 927, December 1982.

Collins, Reliance on State Constitutions: Some Random Thoughts. 54 Miss L. J. 371, Sept.-Dec., 1984.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond. 56 Miss L. J. 73, April, 1986.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Editor’s Note —

During the November 8, 2011, election, a citizen-initiated Constitutional amendment, Initiative # 31 - Eminent Domain, was approved by a majority of the electors of Mississippi. The Governor, by Executive Order No. 1074, dated January 9, 2012, directed the Secretary of State to insert Initiative # 31 in the Mississippi Constitution as Article 3, § 17A.

Article 15, § 273(10) of the Mississippi Constitution provides that initiatives approved by the electors take effect thirty (30) days from the date of the official declaration of the vote by the Secretary of State. The Secretary of State certified the November 8, 2011, election on December 8, 2011.

Executive Order No. 1074, signed by Governor Haley Barbour on January 9, 2012, provides:

“To the Secretary of State

“State of Mississippi:

“WHEREAS, Three (3) Constitutional Initiatives proposed Amendments to the Mississippi Constitution and met the requirements of the Mississippi Constitution and the laws of this State to be placed on the November 8, 2011 ballot, as follows: Initiative # 26 - Definition of “Person”; Initiative # 27 - Voter Identification; and Initiative # 31 - Eminent Domain; and

“WHEREAS, The Constitution requires that the Initiatives “receive a majority of the votes thereon and not less than forty percent (40%) of the total votes cast at the election at which the measure was submitted to be approved.” Miss. Const. Art. 15, § 273(7).

“WHEREAS, Initiative # 27 and Initiative # 31 were approved by the electors of Mississippi in accordance with Miss. Const. Art. 15, § 273(7); and

“WHEREAS, Art. 15, § 273 further provides that initiatives approved by the electors take effect thirty (30) days from the date of the official declaration of the vote by the Secretary of State. Miss. Const. Art. 15, § 273(10). The Secretary of State certified the November 8, 2011, election results on December 8, 2011; and

“WHEREAS, Unlike Initiative # 26, which failed to pass the electorate, Initiative # 27 and Initiative # 31 were both silent as to where the proposed Amendments to the Mississippi Constitution would be placed; furthermore, the Mississippi Constitution, as well as statutory law, is silent as to who has the administrative and/or ministerial authority to insert the initiatives of the people of Mississippi, passed by the electorate, as part of the Constitution; and

“WHEREAS, Article 5, § 123 of the Mississippi Constitution grants the Governor of the State of Mississippi the authority to “see that the laws are faithfully executed”; and

“WHEREAS, Section 7-1-5 of the Mississippi Code Annotated sets forth the powers of the Governor of the State of Mississippi, including, but not limited to, serving as the supreme executive officer of the State, seeing that the laws are faithfully executed, and supervising the official conduct of executive and ministerial officers; and

“WHEREAS, in the absence of constitutional and/or statutory provision providing otherwise, the Governor has the authority to provide direction for carrying out all lawful administrative and ministerial functions of state government; and

“NOW, THEREFORE, I, Haley Barbour, Governor of the State of Mississippi, under, and by virtue of the authority vested in me by the Constitution and Laws of this State, do hereby direct the Secretary of State C. Delbert Hosemann, Jr., as follows:

“To insert Initiative # 31 in the Mississippi Constitution as Art. 3, § 17A, to follow Art. 3, § 17, where the constitutional requirements for the taking of property for public use are located;

“To insert Initiative # 27 in the Mississippi Constitution as Art. 12, § 249A, to follow Art. 12, § 249, where the constitutional requirements to vote in the State of Mississippi are located;

“I do authorize and direct you, upon receipt of this Executive Order, to take notice and be governed accordingly.

“IN WITNESS WHEREOF, I have hereunto set my hand and caused the Great Seal of the State of Mississippi to be affixed.

“DONE at the Capitol, in the City of Jackson, this the 9th day of January, in the year of our Lord two thousand and twelve, and of the two hundred and thirty-sixth year of the United States of America.”

Cross References —

Right of parents to refuse tests on newborn infants, see §41-21-203.

JUDICIAL DECISIONS

1. Free exercise of religion.

2. Establishment of religion–In general.

3. – – – Preference to religious sect, establishment of religion.

4. Marriage and family.

5. Jury selection.

1. Free exercise of religion.

Where defendant asserted that he fit into the exception carved out for ritual slaughter under §75-33-3(3) of Mississippi’s meat inspection law because he gave the meat away and only charged for the ritual slaughter, the chancellor’s concern for not violating the First Amendment rights of defendant and his customers resulted in his allowing defendant greater freedoms than either §75-33-3(3) or the First Amendment requires. Spell v. Muhammad, 756 So. 2d 748, 2000 Miss. LEXIS 6 (Miss. 2000).

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).

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).

Code 1942 §§ 1273-01 and 1273-02 which authorize a majority of the beneficiaries of a religious trust to take over and divest the mother church of church property without regard to the habendum clause of the deed, if a court should determine that there is “deep seated disagreement”, and which permit the court to appoint trustees, were violative of the religious liberty clauses of the Mississippi and federal constitutions. Sustar v. Williams, 263 So. 2d 537, 1972 Miss. LEXIS 1333 (Miss. 1972).

Statute (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 to the United States Constitution.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) (reversing 194 M 1, 11 So. 2d 663; Cummings v. State, 194 M 59, 11 So. 2d 683; Benoit v. State, 194 M 74, 11 So. 2d 689).

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 prophecies concerning the state of this and other nations, irrespective of whether the communications was with an evil or sinister purpose of advocated or indicated 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).

2. Establishment of religion–In general.

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).

Inclusion of invocation and benediction by member of clergy at public high school graduation ceremony is forbidden by establishment clause where public school officials direct performance of such exercise and state, in practical sense, compels attendance; state may not place students who object to such exercise in position of having to either participate or protest. Invocation and benediction are not rendered valid by fact that attendance is voluntary in strict legal sense, prayers were anticipated to be brief, there was attempt to make prayers inclusive and acceptable to most, and for many persons such occasion traditionally involves prayer would lack significance without such religious exercise. Lee v. Weisman, 505 U.S. 577, 112 S. Ct. 2649, 120 L. Ed. 2d 467, 1992 U.S. LEXIS 4364 (U.S. 1992).

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).

3. – – – Preference to religious sect, establishment of religion.

Provisions for a textbook fund for the purchase of free textbooks and for the distribution and loan thereof to pupils in elementary schools including qualified private schools were not in contravention of constitutional prohibition against support of sectarian schools, or control by religious sects over any part of the school or other educational funds of the state, or the prohibition against loaning or giving public property or credit to private persons, the fact that the books were merely loaned to the pupils of such schools being in keeping with the state’s paramount duty to educate children and avoid the constitutional prohibition against giving any preference to any religious sect. Chance v. Mississippi State Textbook Rating & Purchasing Board, 190 Miss. 453, 200 So. 706, 1941 Miss. LEXIS 66 (Miss. 1941).

4. Marriage and family.

The Constitution does not announce a paramount public policy prohibiting legislation which would allow a bigamous wife to recover benefits under the Workmen’s Compensation Law. Pathfinder Coach Div. of Superior Coach Corp. v. Cottrell, 216 Miss. 358, 62 So. 2d 383, 1953 Miss. LEXIS 646 (Miss. 1953).

Workmen’s Compensation Act which allows payments of compensation to acknowledged illegitimate child dependent upon deceased’s labor, and to bigamous wife upon death of the putative husband are not repugnant to the Constitution nor any public policy in regard to bigamy. Pathfinder Coach Div. of Superior Coach Corp. v. Cottrell, 216 Miss. 358, 62 So. 2d 383, 1953 Miss. LEXIS 646 (Miss. 1953).

5. Jury selection.

Mississippi caselaw did not extend the Batson protection to religiously based peremptory strikes of jurors; the only objection offered by defendant was a Batson objection. Because defendant did not object that religiously 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).

Peremptory challenges based on a person’s membership in a particular religious order or denomination violates the State Constitution by permitting preference of one religion over another. Thorson v. State, 721 So. 2d 590, 1998 Miss. LEXIS 392 (Miss. 1998).

RESEARCH REFERENCES

ALR.

Validity and construction of statute or ordinance relating to distribution of advertising matter. 22 A.L.R. 1484, 114 A.L.R. 1446.

Effect of, and remedies for, exclusion of eligible class or classes of persons from jury list in criminal case. 52 A.L.R. 919.

Power of municipal or school authorities to prescribe vaccination or other health measure as a condition of school attendance. 93 A.L.R. 1413.

Constitutionality, construction, and application of statute exempting schemes for benefit of public, religious, or charitable purposes from statutes or constitutional provisions against lotteries or gambling. 103 A.L.R. 875.

Validity of provision in respect of racial or religious differences, in zoning ordinance or regulation which is not confined to that matter but embraces, or is part of, a broader zoning plan. 126 A.L.R. 638.

Power of legislature or school authorities to prescribe and enforce oath of allegience, salute to flag, or other ritual of a patriotic character. 127 A.L.R. 1502; 141 A.L.R. 1030; 147 A.L.R. 698.

Validity of statutory or municipal regulation of soliciting of alms or contributions for charitable, religious, or individual purposes. 128 A.L.R. 1361, 130 A.L.R. 1504.

Discrimination because of race, color, or creed in respect of appointment, duties, compensation, etc., of schoolteachers or other public officers or employees. 130 A.L.R. 1512.

Use of streets or parks for religious purposes. 133 A.L.R. 1402.

Validity, construction, and application of statutes or regulations concerning recreational or social activities of pupils of public schools. 134 A.L.R. 1274.

Constitutional guaranty of freedom of religion as applied to license taxes or regulations. 146 A.L.R. 109, 152 A.L.R. 322.

Sectarianism in schools. 45 A.L.R.2d 742.

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

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

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 775.

State Constitutional Challenges to the Display of Religious Symbols on Public Property. 26 A.L.R. 6th 145.

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

Free exercise of religion clause of First Amendment as defense to tort liability. 93 A.L.R. Fed. 754.

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.

Constitutionality of teaching or suppressing teaching of Biblical creationism or Darwinian evolution theory in public schools. 102 A.L.R. Fed. 537.

Constitutionality of teaching or otherwise promoting secular humanism in public schools. 103 A.L.R. Fed. 538.

Bible distribution or use in public schools–modern cases. 111 A.L.R. Fed. 1.

Validity and construction of public school regulation of student distribution of religious documents at school. 136 A.L.R. Fed. 551.

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.

Am. Jur.

16A Am. Jur. 2d, Constitutional Law §§ 321, 375-378.

CJS.

C.J.S. Constitutional Law §§ 513 to 517.

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

Lawyers’ Edition.

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.

Tax legislation as violating Federal Constitution’s First Amendment – Supreme Court cases. 103 L. Ed. 2d 951.

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.

Law Reviews.

Collins, Reliance on State Constitutions: Some Random Thoughts. 54 Miss L. J. 371, Sept.-Dec., 1984.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond. 56 Miss L. J. 73, April, 1986.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Roy, Constitutional Law – Mississippi’s Recognition of a Privacy Right To Refuse Medical Treatment. 7 Miss. C. L. Rev. 47, Fall, 1986.

Comment: a call to secure religious exercise under the Mississippi constitution. 62 Miss. L. J. 133, Spring, 1992.

Editor’s Note —

Former Section 19 prohibited dueling and both disenfranchised and disqualified persons involved in a duel from holding public office.

The repeal of Section 19 of Article 3 of the Constitution of 1890 was proposed by Laws, 1977, Ch. 584 (Senate Concurrent Resolution No. 528) and upon ratification by the electorate on November 7, 1978, was deleted from the Constitution by proclamation of the Secretary of State on December 22, 1978.

JUDICIAL DECISIONS

1. Public office and officers–In general.

2. ––– Failure to fix term of office, public office and officers.

3. ––– Police and fire officers, public office and officers.

1. Public office and officers–In general.

Claimant to office of Jones County Community Hospital trustee could not prevail upon a contention that he had been removed from office in violation of Mississippi Constitution §§ 20 and 175. State ex rel. Pair v. Burroughs, 487 So. 2d 220, 1986 Miss. LEXIS 2437 (Miss. 1986).

In order to come within this provision and § 175 of the Constitution, the officer’s duty must be continuing, be defined by rules prescribed by law, to be discharged by him in his own right and not by permission and under the supervision and control of another. Glover v. Columbus, 197 Miss. 467, 19 So. 2d 756, 1944 Miss. LEXIS 313 (Miss. 1944).

Position is “public office” when created by law with duties cast upon incumbent involving exercise of some portion of sovereign power in performance of which public is concerned and which are continuing in their nature, “continuing” meaning enduring and permanent, whereas “public employment” is position lacking one or more foregoing elements. State by Mitchell v. McLaurin, 159 Miss. 188, 131 So. 89, 1930 Miss. LEXIS 359 (Miss. 1930).

Length of time required to perform special and transient duties is not test of whether person discharging duties is public officer or employee. State by Mitchell v. McLaurin, 159 Miss. 188, 131 So. 89, 1930 Miss. LEXIS 359 (Miss. 1930).

Members of State hospital removal improvement and land sale commission held not “public officers” within constitutional provision and statute relating to term of office. State by Mitchell v. McLaurin, 159 Miss. 188, 131 So. 89, 1930 Miss. LEXIS 359 (Miss. 1930).

Under this section neither a deputy auditor nor a deputy land commissioner is a public officer. State ex rel. Brown v. Christmas, 126 Miss. 358, 88 So. 881, 1921 Miss. LEXIS 44 (Miss. 1921).

2. ––– Failure to fix term of office, public office and officers.

Act creating seawall districts and providing for appointment of commissioners was not unconstitutional because of failure to fix terms of such commissioners in view of general statute fixing the terms of all officers not otherwise provided for by law. Board of Mayor & Aldermen v. Moreau, 109 Miss. 407, 69 So. 214, 1915 Miss. LEXIS 171 (Miss. 1915).

If the legislature create an office and provide that the officer shall hold until his successor is elected, and yet make no provision for an election of a successor, the officer will hold until the next general election, but no longer. Houston v. Royston, 8 Miss. 543, 1843 Miss. LEXIS 122 (Miss. 1843).

3. ––– Police and fire officers, public office and officers.

A policeman, serving only by permission of the mayor and council of a city, who not only prescribed his duties but also supervised and controlled the performance thereof, is not a public officer entitled to invoke the constitutional provisions (§§ 20 and 175) against removal during term of office except upon conviction of wilful neglect of duty or misdemeanor in office. Glover v. Columbus, 197 Miss. 467, 19 So. 2d 756, 1944 Miss. LEXIS 313 (Miss. 1944).

Act (Laws 1940, ch 287; Code 1942 §§ 3472-3494) providing for retirement benefits for firemen and policemen but making them available for supernumerary tasks after retirement does not violate this section. Mayor & Aldermen of Vicksburg v. Crichlow, 196 Miss. 259, 16 So. 2d 749, 1944 Miss. LEXIS 185 (Miss. 1944).

An act of the legislature or an ordinance of a municipality authorizing the appointment of a policeman during good behavior is unconstitutional and void. Monette v. State, 91 Miss. 662, 44 So. 989 (Miss. 1907), overruled in part, Glover v. Columbus, 197 Miss. 467, 19 So. 2d 756, 1944 Miss. LEXIS 313 (Miss. 1944).

RESEARCH REFERENCES

ALR.

Beginning or expiration of term of elective officer where no time is fixed by law. 80 A.L.R. 1290, 135 A.L.R. 1173.

Power of legislature to extend term of public office. 97 A.L.R. 1428.

CJS.

C.J.S. Counties §§ 101 to 103.

C.J.S. Municipal Corporations §§ 362, 363.

C.J.S. Officers and Public Employees §§ 86-94.

C.J.S. States §§ 88, 89, 151-153, 169, 170.

Law Reviews.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond, 56 Miss L. J. 73, April, 1986.

JUDICIAL DECISIONS

1. Acts subject to judicial review.

2. Habeas corpus applications within section.

3. Double Jeopardy.

1. Acts subject to judicial review.

Mandamus, prohibition, or injunction cannot direct or restrain Governor in the exercise of his power, but any act which may injure a citizen in his legal rights under the law is subject to redress in the courts. State v. McPhail, 182 Miss. 360, 180 So. 387, 1938 Miss. LEXIS 147 (Miss. 1938).

Action of Governor calling out national guard and what members of militia may do in pursuance of such order, held subject to judicial review at suit or other appropriate legal challenge of any citizen who can show he has been unlawfully affected in his private personal or private property rights. State v. McPhail, 182 Miss. 360, 180 So. 387, 1938 Miss. LEXIS 147 (Miss. 1938).

2. Habeas corpus applications within section.

Petitioner was not denied his right to a writ of habeas corpus when his notice of appeal in writ of state habeas corpus was denied as a successive writ; the Mississippi Legislature had enacted a comprehensive procedure for postconviction relief through the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss. Code Ann. §99-39-3(1). Austin v. State, 914 So. 2d 1281, 2005 Miss. App. LEXIS 916 (Miss. Ct. App. 2005).

Mississippi Post-Conviction Collateral Relief Act does not suspend the writ of habeas corpus in violation of Miss. Const. Art. III, § 21, as the act is merely a codification of existing constraints on review traditionally practiced by the Mississippi Supreme Court. Putnam v. State, 877 So. 2d 468, 2003 Miss. App. LEXIS 1205 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 861 (Miss. 2004).

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).

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).

One who has been denied bail may seek his or her liberty via habeas corpus. There is nothing in the Uniform Post-Conviction Collateral Relief Act (§§99-39-1 et seq.), §99-35-115, Miss. Sup. Ct. R. 9 or Unif. Crim. R. Cir. Ct. Prac. 7.02 which purports to suspend this right nor could the right ever be suspended except in the limited circumstance provided for by the constitution. Although purely collateral post-conviction remedies attacking a judgment of conviction or sentence should be sought under authority of the Post-Conviction Collateral Relief Act since that Act, in the pure post-conviction collateral relief sense, is arguably “post-conviction habeas corpus renamed,” matters of appeal may appropriately be addressed through true habeas corpus actions; bail pending appeal via habeas corpus is incident to the direct review of a conviction or sentence and, therefore, is not affected, prohibited or otherwise governed by the Uniform Post-Conviction Collateral Relief Act. Habeas corpus is one way of seeking liberty following conviction and pending appeal, and statutory and uniform rule procedure another, although the standards for granting or denying bail remain the same in either situation. Treigle v. Treigle, 555 So. 2d 738, 1990 Miss. LEXIS 139 (Miss. 1990).

3. Double Jeopardy.

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).

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Habeas Corpus §§ 1, 2 et seq.

41 Am. Jur. Trials 349, Habeas Corpus: Pretrial Motions.

CJS.

C.J.S. Habeas Corpus §§ 4, 5.

Lawyers’ Edition.

When is person “in custody” in violation of Federal Constitution, so as to be eligible for relief under federal habeas corpus legislation-Supreme Court cases. 104 L. Ed. 2d 1122.

Law Reviews.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond. 56 Miss L. J. 73, April, 1986.

JUDICIAL DECISIONS

1. In general.

2. When jeopardy attaches–In general.

3. – – Judgments and judicial proceedings generally, when jeopardy attaches.

4. – – Discharge of jury or juror, when jeopardy attaches.

5. – – Dismissal or nolle prosequi, when jeopardy attaches.

6. – – Mistrial, when jeopardy attaches.

7. – – Plea agreements, when jeopardy attaches.

8. – – Quashing of indictment, when jeopardy attaches.

9. – – Reversal of conviction, when jeopardy attaches.

10. – – Revocation of parole or probation, when jeopardy attaches.

11. – Revocation of bond, when jeopardy attaches.

12. – – Attorney disciplinary proceedings, when jeopardy attaches.

13. – – Impaneling and swearing in of jury, when jeopardy attaches.

14. Identity of offenses–In general.

15. – – Offenses against different governments, identity of offenses.

16. Sentence and punishment–In general.

17. Addition of a condition to a suspended sentence.

18. – – Guilty pleas, sentence and punishment.

19. – – Habitual offenders, sentence and punishment.

20. – – Parole, probation, or suspended sentence, sentence and punishment.

21. – – Attorney disciplinary proceedings, sentence and punishment.

22. Motions to dismiss.

23. Different elements, no double jeopardy.

1. In general.

Defendant’s convictions on two counts of armed robbery for taking the same money did not violate the protection against double jeopardy in the Fifth Amendment or this section, because there were two victims. Reynolds v. State, 227 So.3d 428, 2017 Miss. App. LEXIS 556 (Miss. Ct. App. 2017).

Although the prior domestic incident was mentioned in testimony, defendant was not tried for the alleged simple assault, nor was the jury asked to render a finding of innocence or guilt with regard to the prior unadjudicated incident, and, in fact, the trial court gave a limiting instruction; thus, no jeopardy attached with regard to the prior domestic incident for purposes of a constitutional right being violated, and the court did not violate the rule prohibiting the admissibility of relevant evidence when the constitutions provided otherwise. Chase v. State, — So.3d —, 2020 Miss. App. LEXIS 47 (Miss. Ct. App. Feb. 18, 2020).

Trial court did not err in determining that defendant failed to establish any double jeopardy violation because the case failed to involve facts wherein the State prosecuted defendant twice for the same crime; the offenses occurred on different dates, in different counties, and arose out of distinctly different facts. Williams v. State, 167 So.3d 252, 2015 Miss. App. LEXIS 311 (Miss. Ct. App. 2015).

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).

Denial of the inmate’s petition for post-conviction relief was appropriate where he was not permitted to address a double jeopardy claim for the first time in a postconviction relief motion. Hoskins v. State, 934 So. 2d 326, 2006 Miss. App. LEXIS 186 (Miss. Ct. App. 2006).

Appellate court affirmed the denial of the inmate’s motion for post-conviction 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).

Defendant was not subjected to double jeopardy, as while the two offenses were committed close in time and against the same victim, the record reflected that the grand larcenies occurred at different times, in different locations, and arose from separate acts. Hughery v. State, 915 So. 2d 457, 2005 Miss. App. LEXIS 265 (Miss. Ct. App.), cert. denied, 921 So. 2d 1279, 2005 Miss. LEXIS 779 (Miss. 2005).

Defendant was prosecuted for aggravated assault in State court, not possession of a firearm by a priorly convicted felon but even if he had been prosecuted for possession of a firearm by a priorly convicted felon, there would have been no bar to his prosecution by the State because the State of Mississippi and the federal government were different and distinct sovereigns. There was no double jeopardy violation, and res judicata or collateral estoppel (argued by defendant), did not apply in said criminal action. Acreman v. State, 907 So. 2d 1005, 2005 Miss. App. LEXIS 276 (Miss. Ct. App. 2005).

Defendant was not subjected to double jeopardy where the crimes of aggravated assault and armed robbery. although they arose from the same incident, the two crimes were separate. Johnson v. State, 848 So. 2d 906, 2003 Miss. App. LEXIS 588 (Miss. Ct. App. 2003).

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).

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).

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).

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).

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).

Where the defendant has been acquitted on the merits of her case by reason of a directed verdict, such acquittal is a bar to any future accusation of the same offense. State v. Thornhill, 251 Miss. 718, 171 So. 2d 308, 1965 Miss. LEXIS 896 (Miss. 1965); Smith v. State, 198 So. 2d 220, 1967 Miss. LEXIS 1249 (Miss. 1967).

An actual conviction or acquittal on the merits must be shown to support a plea of former jeopardy. Conwill v. State, 124 Miss. 716, 86 So. 876, 1920 Miss. LEXIS 532 (Miss. 1920); Lovern v. State, 140 Miss. 635, 105 So. 759, 1925 Miss. LEXIS 299 (Miss. 1925); Harris v. State, 158 Miss. 439, 130 So. 697, 1930 Miss. LEXIS 80 (Miss. 1930).

2. When jeopardy attaches–In general.

In a case where defendant was convicted of several crimes relating to the arson and burglary of a residence, his double jeopardy rights were not violated due to the fact that some of the elements of the crimes overlapped; each of the crimes involved required proof of an additional fact that the other did not. McCollins v. State, 952 So. 2d 305, 2007 Miss. App. LEXIS 167 (Miss. Ct. App. 2007).

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).

Twenty-one-year delay between entry of nolle prosequi on murder indictment and reindictment for 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).

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).

3. – – Judgments and judicial proceedings generally, when jeopardy attaches.

State was not collaterally estopped under the Double Jeopardy Clause from trying appellant for possession of a weapon by a convicted felon because whether appellant was in possession of a weapon was never litigated and resolved in his favor; appellant was not acquitted based on the jury’s finding he had no weapon in his possession, but instead, he was merely permitted by the circuit court to plead guilty to the lesser-included charge of simple stalking. Johnson v. State, 159 So.3d 601, 2014 Miss. App. LEXIS 667 (Miss. Ct. App. 2014).

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).

Where defendant defrauded furniture sellers by telephone, wire communications, or mail, defendant’s second indictment for wire fraud did not conflict with double jeopardy rules, because wire fraud charge was a distinct offense, and required proof of different elements than the initial charge of false pretenses, which had been dismissed. McGee v. State, 853 So. 2d 125, 2003 Miss. App. LEXIS 159 (Miss. Ct. App.), cert. denied, 852 So. 2d 577, 2003 Miss. App. LEXIS 834 (Miss. Ct. App. 2003).

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).

In order for a plea of former jeopardy to avail, it must appear that the defendant was actually acquitted or convicted in a former trial on the merits of the crime for which he is again sought to be convicted. State v. Pace, 210 Miss. 448, 49 So. 2d 710, 1951 Miss. LEXIS 281 (Miss. 1951).

Oral testimony was properly taken to settle the doubt as to whether the accused had actually been in former jeopardy. State v. Pace, 210 Miss. 448, 49 So. 2d 710, 1951 Miss. LEXIS 281 (Miss. 1951).

If a former acquittal was obtained by collusion it will be no bar. Howell v. State, 104 Miss. 295, 61 So. 314, 1913 Miss. LEXIS 32 (Miss. 1913).

For an instance where a defective affidavit charging defendant with assault and battery before a magistrate upon which he was convicted was sufficient to bar a trial under an indictment for assault, see Henry v. State, 97 Miss. 787, 53 So. 397, 1910 Miss. LEXIS 297 (Miss. 1910).

An acquittal or conviction in a court without jurisdiction does not bar a subsequent prosecution for the same offense. Montross v. State, 61 Miss. 429, 1883 Miss. LEXIS 154 (Miss. 1883).

A conviction or acquittal before a justice of the peace without an affidavit or written charge, is no bar to a subsequent prosecution. Bigham v. State, 59 Miss. 529, 1882 Miss. LEXIS 151 (Miss. 1882); Wilcox v. Williamson, 61 Miss. 310, 1883 Miss. LEXIS 127 (Miss. 1883); Woodson v. State, 94 Miss. 370, 48 So. 295, 1908 Miss. LEXIS 43 (Miss. 1908).

A conviction or acquittal on an invalid indictment is no bar to a second prosecution. State v. McGraw, 1 Miss. 208, 1825 Miss. LEXIS 5 (Miss. 1825); Kohlheimer v. State, 39 Miss. 548, 1860 Miss. LEXIS 87 (Miss. 1860).

4. – – Discharge of jury or juror, when jeopardy attaches.

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).

A plea of former jeopardy is not sustained by the facts that after the jury had been qualified, but before it had been accepted by both parties the justice of the peace discharged jury, and continued the case to a later date. Green v. Everson, 141 Miss. 129, 106 So. 265, 1925 Miss. LEXIS 219 (Miss. 1925).

A prisoner is not entitled to a discharge because after the introduction of evidence one of the jurors was reminded that he had been upon the grand jury which found the indictment and, making the fact known, was discharged by the court. Roberts v. State, 72 Miss. 728, 18 So. 481, 1895 Miss. LEXIS 64 (Miss. 1895).

A discharge of the jury upon the return of a verdict, in the absence of the prisoner while in jail, entitles the defendant to a discharge. Finch v. State, 53 Miss. 363, 1876 Miss. LEXIS 80 (Miss. 1876).

5. – – Dismissal or nolle prosequi, when jeopardy attaches.

In a 28 U.S.C.S. § 2254 case, a pro se state inmate unsuccessfully argued that the initial indictment had to have been nolle prosequied before a second indictment could be issued in order for a second indictment to not place him in double jeopardy. Since he was only tried on the second and superseding indictment, double jeopardy was not implicated in the case. Eason v. King, 2010 U.S. Dist. LEXIS 79238 (S.D. Miss. Aug. 4, 2010).

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).

Where nolle prosequi is entered, that particular case is at an end on the docket, but this does not bar another prosecution for same offense if commenced in the court where the case originated. 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).

Because the first indictment was nolle prosequi before defendant pled guilty, defendant was not subject to double jeopardy as there was no prejudice. Thorson v. State, 653 So. 2d 876, 1994 Miss. LEXIS 600 (Miss. 1994).

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).

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).

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).

Defendant was not placed in jeopardy twice for the same offense where, upon his appeal to the circuit court from his conviction in the police court of keeping open a grocery store on the Sabbath, the prosecution was nol-prossed, and thereafter he was again arrested for the same offense, entered a plea of nolo contendere in the police justice’s court and upon an appeal therefrom was convicted in the circuit court in a trial on the merits. Walton v. Tupelo, 229 Miss. 193, 90 So. 2d 193, 1956 Miss. LEXIS 600 (Miss. 1956).

The use of the words “without prejudice” serves to prevent the dismissal from operating as a bar to any new suit or prosecution on the same charge. State v. Pace, 210 Miss. 448, 49 So. 2d 710, 1951 Miss. LEXIS 281 (Miss. 1951).

That district attorney at close of evidence entered no. pros., did not prevent subsequent prosecution under another indictment. Maxey v. State, 158 Miss. 444, 130 So. 692, 1930 Miss. LEXIS 77 (Miss. 1930).

Where defendant was tried on previous indictment, but jury did not agree and district attorney entered nol. pros., second prosecution was not barred. Smith v. State, 158 Miss. 355, 128 So. 891, 1930 Miss. LEXIS 12 (Miss. 1930).

Nolle prosequi is not a bar to another indictment for the same offense. Casey v. State, 96 Miss. 427, 50 So. 978, 1910 Miss. LEXIS 151 (Miss. 1910).

6. – – Mistrial, when jeopardy attaches.

Defendant’s retrial for murder following a mistrial due to a deadlocked jury did not violate double jeopardy. Thompson v. State, 269 So.3d 301, 2018 Miss. App. LEXIS 175 (Miss. Ct. App. 2018).

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 in the discovery by the State during direct examination that its first witness (defendant’s companion, charged as an accessory) was unrepresented by counsel. Because this witness had made incriminating statements, it was his rights, not defendant’s, that the State believed were violated, and there was no showing of harm to defendant or bad faith 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).

Where the State’s discovery violations during defendant’s second murder prosecution were unintentional and a mistrial ordered, double jeopardy principles did not apply because there was no prosecutorial manipulation of its disclosure obligation. Roberson v. State, 856 So. 2d 532, 2003 Miss. App. LEXIS 404 (Miss. Ct. App.), cert. denied, 859 So. 2d 1017, 2003 Miss. LEXIS 569 (Miss. 2003).

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).

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).

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).

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 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).

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).

Fourth prosecution is not barred on double jeopardy grounds where 3 proceeding trials have ended in mistrials. Wallace v. State, 466 So. 2d 900, 1985 Miss. LEXIS 1991 (Miss. 1985).

Under this section, in order for a plea of former jeopardy to avail, it must appear that defendant was actually acquitted or convicted in a former trial on the merits of the crime for which he is again sought to be convicted, and the fact of two prior mistrials caused by hung juries does not bar a third trial. Mallette v. State, 349 So. 2d 546, 1977 Miss. LEXIS 2169 (Miss. 1977).

The trial court properly granted a mistrial after two jurors became separated from the others and visited in a motel lobby, after being sequestered and expressly instructed to remain together; defendant was not placed in double jeopardy when his trial was begun the second time. Schwarzauer v. State, 339 So. 2d 980, 1976 Miss. LEXIS 1680 (Miss. 1976).

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).

7. – – Plea agreements, when jeopardy attaches.

There was no double jeopardy violation when a trial court required defendant to pay restitution to a bank which was the victim of defendant’s forgeries, when the forgery charges were retired to the inactive files because defendant pleaded guilty to a charge of shoplifting and agreed in plea negotiations to make restitution for both the shoplifting and forgery charges, as defendant was never acquitted or convicted of the forgeries. Smith v. State, 130 So.3d 1187, 2014 Miss. App. LEXIS 45 (Miss. Ct. App. 2014).

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).

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).

Following vacation of defendant’s second-degree murder conviction due to defendant’s breach of plea agreement, state’s prosecution of defendant for first-degree murder does not violate double jeopardy, where agreement specified that it would be null and void if defendant refused to testify as required by agreement. Ricketts v. Adamson, 483 U.S. 1, 107 S. Ct. 2680, 97 L. Ed. 2d 1, 1987 U.S. LEXIS 2866 (U.S. 1987).

8. – – Quashing of indictment, when jeopardy attaches.

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).

9. – – Reversal of conviction, when jeopardy attaches.

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), rev'd, — U.S. —, 139 S. Ct. 2228, 204 L. Ed. 2d 638, 2019 U.S. LEXIS 4196 (U.S. 2019).

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).

Where conviction of manslaughter under indictment for murder is reversed on application of accused, cause stands for trial de novo on original indictment, and accused may again be tried for murder. Butler v. State, 177 Miss. 91, 170 So. 148, 1936 Miss. LEXIS 234 (Miss. 1936).

Where defendant was convicted with unlawfully possessing intoxicating liquors and the conviction was reversed and remanded because of failure to prove venue, the remanding of the case would not place defendant in double jeopardy, even though defendant had moved to exclude state’s evidence and had requested peremptory instruction in his favor. Crum v. State, 216 Miss. 780, 63 So. 2d 242, 1953 Miss. LEXIS 695 (Miss. 1953).

Reversal of conviction of manslaughter on ground that the trial court should have directed an acquittal did not constitute double jeopardy, and a demurrer to the plea of former jeopardy was properly sustained. Harris v. State, 158 Miss. 439, 130 So. 697, 1930 Miss. LEXIS 80 (Miss. 1930).

10. – – Revocation of parole or probation, when jeopardy attaches.

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).

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).

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).

11. – Revocation of bond, when jeopardy attaches.

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).

12. – – Attorney disciplinary proceedings, when jeopardy attaches.

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).

13. – – Impaneling and swearing in of jury, when jeopardy attaches.

No jeopardy attached upon the impaneling and swearing in of the first jury, since the circuit court was without jurisdiction to try the minor defendant for manslaughter, and she was not placed in jeopardy for a second time by her subsequent trial for murder and conviction of manslaughter, after she had been certified by the youth court to the circuit court for trial as an adult. Butler v. State, 489 So. 2d 1093, 1986 Miss. LEXIS 2507 (Miss. 1986).

14. Identity of offenses–In general.

Defendant was not subjected to double jeopardy because defendant was originally found guilty of capital murder and sentenced to death, but, on remand, a separate criminal information was filed for the crime of burglary, and defendant’s guilty plea to that offense was accepted. Thus, defendant was allowed to plead guilty to murder (less than capital) and burglary in exchange for the State of Mississippi not seeking the death penalty. Pinkney v. State, 192 So.3d 337, 2015 Miss. App. LEXIS 614 (Miss. Ct. App. 2015).

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 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 argued that the jury’s verdict of not guilty to the charge of capital murder also acquitted her of any underlying and lesser-included offenses, and that she should have been discharged as a matter of law and pursuant to the prohibition against double jeopardy; however, Miss. Code Ann. §99-19-5(1) allowed a jury to find a defendant guilty of inferior offenses, the commission of which was necessarily included in the offense with which defendant was charged. Because murder was a lesser-included offense of capital murder, the trial court did not err in accepting a verdict of guilty of murder and defendant’s double jeopardy rights were not violated. Colburn v. State, 990 So. 2d 206, 2008 Miss. App. LEXIS 74 (Miss. Ct. App. 2008).

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).

Appellant’s conviction for DUI manslaughter and two counts of DUI mayhem in violation of Miss. Code Ann. §63-11-30 did not subject him to double jeopardy. Each of the counts were predicated upon separate felonies, one instance of manslaughter and two instances of mutilation or mayhem that appellant committed as a result of his drunk driving. Moreno v. State, 967 So. 2d 701, 2007 Miss. App. LEXIS 739 (Miss. Ct. App. 2007).

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).

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).

Denial of the inmate’s petition for post-conviction relief was proper where double jeopardy protection was not implicated because Miss. Code Ann. §63-11-30(5) required an element not required by Miss. Code Ann. §97-3-47, namely, that of intoxication. Ramage v. State, 914 So. 2d 274, 2005 Miss. App. LEXIS 772 (Miss. Ct. App. 2005).

As defendant remained in possession of cocaine after he sold it to the officer, he could be convicted for both possession and sale of a controlled substance under Miss. Code Ann. §41-29-139(a)(1) without a double jeopardy violation. McDonald v. State, 921 So. 2d 353, 2005 Miss. App. LEXIS 334 (Miss. Ct. App. 2005), cert. denied, 926 So. 2d 922, 2006 Miss. LEXIS 159 (Miss. 2006).

Where defendant was tried in a second case for statutory rape, sexual battery, and fondling, double jeopardy was not violated; while the victims were the same, the factual bases supporting the charges in the current indictment were totally different from the factual bases undergirding the charges in the first case. Moses v. State, 885 So. 2d 730, 2004 Miss. App. LEXIS 912 (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).

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).

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).

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).

For the purpose of double jeopardy analysis, the offense of speeding and the offense of failure to appear in court after being issued a traffic citation are entirely separate offenses, with each offense obviously containing some or all elements not contained in the other. Stidham v. State, 750 So. 2d 1238, 1999 Miss. LEXIS 372 (Miss. 1999).

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).

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).

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).

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 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 two 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 two 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).

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).

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 plead 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).

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).

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).

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).

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).

Defendant’s constitutional double jeopardy right was violated where he had previously been acquitted of 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).

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).

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 a body of a victim was severely burned by a fire, which also consumed his house, and where the defendant was acquitted of the murder, double jeopardy clause of Article 3 § 22 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).

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).

Indictment of defendant for felonious battery of a child did not subject him to former jeopardy, though he had previously been acquitted of a charge of manslaughter with respect to the same child’s death, since defendant was not thereby subjected to being tried twice for the same offense, the essentials of felonious battery including intent and mutilation, neither of which is necessary to a conviction for manslaughter, and the indictment for manslaughter thus did not constitute the basis for a conviction of felonious battery. State v. Cox, 339 So. 2d 1374, 1976 Miss. LEXIS 1697 (Miss. 1976).

Where the fact clearly established that the possession and sale of marijuana was a single transaction, the defendant could properly be charged with possession and sale, but he could be convicted of only one charge, and the state having elected to try him first for the possession, his conviction and sentence on that charge precluded the state from trying him for the sale. Laughter v. State, 241 So. 2d 641, 1970 Miss. LEXIS 1348 (Miss. 1970).

A defendant, convicted in a federal court of the offense of interstate transportation of stolen property, is not placed in double jeopardy when subsequently prosecuted in a state court for embezzlement of the same property. Bell v. State, 251 Miss. 511, 170 So. 2d 428, 1965 Miss. LEXIS 877 (Miss. 1965).

Rule against double jeopardy is not violated by punishing as contempt of court an act which has been punished as a penal offense. Church v. State, 239 Miss. 1, 111 So. 2d 228, 1959 Miss. LEXIS 541 (Miss. 1959).

One acquitted of violating the general statute penalizing adultery and fornication (Code 1942 § 1998) is not put twice in jeopardy by being charged under the statute penalizing incestuous relationships. (Code 1942 § 2000). Ratcliff v. State, 234 Miss. 724, 107 So. 2d 728, 1958 Miss. LEXIS 542 (Miss. 1958).

In view of accused’s testimony that he had not been tried on the afternoon of his arrest for speeding, and no affidavit therefor had been made, his contention of double jeopardy, under a later speeding conviction in the circuit court, would fail since the offense for which he was tried in the justice of peace court was not the same offense as involved in the appeal, and if no affidavit had been made, the conviction in the justice of peace court was void and no bar to a subsequent prosecution. Gangloff v. State, 232 Miss. 395, 99 So. 2d 461, 1958 Miss. LEXIS 285 (Miss. 1958).

When a single unlawful act results in the killing of more than one person, each homicide constitutes a separate offense for which the defendant may be tried without being twice put in jeopardy for the same offense. Burton v. State, 226 Miss. 31, 79 So. 2d 242, 1955 Miss. LEXIS 605 (Miss. 1955).

There is a distinction between an offense and the unlawful act out of which it arises and the test as to whether the accused has been put in double jeopardy is not whether the accused has been tried for the same act but whether he had been put in jeopardy for the same offense. Burton v. State, 226 Miss. 31, 79 So. 2d 242, 1955 Miss. LEXIS 605 (Miss. 1955).

To entitle the accused to plead former jeopardy, the offenses charged in two prosecutions must be the same in law and in fact. Burton v. State, 226 Miss. 31, 79 So. 2d 242, 1955 Miss. LEXIS 605 (Miss. 1955).

A conviction of accused for failure to support his family is not a bar to a prosecution for abandonment of wife and child. McRae v. State, 104 Miss. 861, 61 So. 977, 1913 Miss. LEXIS 90 (Miss. 1913).

A conviction on Sunday bars a subsequent prosecution for the same offense. Cherry v. State, 103 Miss. 225, 60 So. 138, 1912 Miss. LEXIS 159 (Miss. 1912).

A prosecution in the circuit court is barred by a former conviction by a justice of the peace of the same offense. Smith v. State, 101 Miss. 853, 58 So. 539, 1912 Miss. LEXIS 18 (Miss. 1912).

A prosecution of an officer for converting certain funds to his own use is barred by a former conviction under a charge of failure to turn over money. McInnis v. State, 97 Miss. 280, 52 So. 634, 1910 Miss. LEXIS 258 (Miss. 1910).

On the trial of a charge of unlawful sale of liquors several sales were established and the state elected to stand on one of which the accused was acquitted. He cannot again be tried on one of the sales proved in the first trial. King v. State, 99 Miss. 23, 54 So. 657, 1910 Miss. LEXIS 6 (Miss. 1910); Williams v. State, 102 Miss. 274, 59 So. 87, 1912 Miss. LEXIS 52 (Miss. 1912).

A prosecution on an indictment for embezzling a particular item of an account is barred by an acquittal under an indictment for embezzling a “balance of the account.” State v. Caston, 96 Miss. 183, 50 So. 569, 1909 Miss. LEXIS 38 (Miss. 1909).

The mere failure of a justice of the peace to properly sentence the defendant does not prevent his pleading former jeopardy on a trial under an indictment for the same offense found prior to the trial before the justice, where the defendant had not been arrested before the indictment. Smithey v. State, 93 Miss. 257, 46 So. 410, 1908 Miss. LEXIS 82 (Miss. 1908).

A person convicted under a municipal ordinance prohibiting leaking water pipes for more than two days bars another prosecution for like offense on the same street committed any time prior to the affidavit in the original prosecution. Crumpler v. Vicksburg, 89 Miss. 214, 42 So. 673, 1906 Miss. LEXIS 76 (Miss. 1906).

Section 1412 of the Code, providing that the conviction of a defendant by a justice of the peace for a misdemeanor shall not bar a prosecution for a felony in the same matter, is not violative of this section. Tate v. Board of Levee Comm'rs, 84 Miss. 388, 36 So. 395, 1904 Miss. LEXIS 50 (Miss. 1904).

Under a charge of aiming and discharging firearms at another, an acquittal under an indictment for assault and battery with intent to kill and murder does not bar the prosecution. Richardson v. State, 79 Miss. 289, 30 So. 650, 1901 Miss. LEXIS 50 (Miss. 1901).

The offenses must be identical. Chiles v. Gallagher, 67 Miss. 413, 7 So. 208, 1889 Miss. LEXIS 36 (Miss. 1889).

A prosecution for assault and battery or a simple assault will be barred by a conviction or acquittal upon an indictment for assault and battery with intent to kill. Jones v. State, 66 Miss. 380, 6 So. 231, 1889 Miss. LEXIS 109 (Miss. 1889).

Where defendant was acquitted under an indictment charging an offense against a daughter does not bar a subsequent prosecution for the offense committed against a stepdaughter. Sims v. State, 66 Miss. 33, 5 So. 525, 1888 Miss. LEXIS 54 (Miss. 1888).

A prosecution for disturbance of public worship by other means than drunkenness is not barred by a conviction on a charge of drunkenness at the time. Smith v. State, 67 Miss. 116, 7 So. 208, 1889 Miss. LEXIS 35 (Miss. 1889); Ball v. State, 67 Miss. 358, 7 So. 353, 1889 Miss. LEXIS 91 (Miss. 1889).

It is no bar to a prosecution for gaming that defendant was convicted of gaming at a date subsequent to the time laid in the indictment unless evidence of the former gaming was adduced in the trial. Pope v. State, 63 Miss. 53, 1885 Miss. LEXIS 12 (Miss. 1885).

A plea of former jeopardy to an indictment for slander which sets out different words charged in the affidavit on which defendant was convicted to those charged in the indictment is bad. Seal v. State, 2 Miss. Dec. 450 (1883).

An acquittal under an indictment for murder which does not charge an assault and battery is not good in bar of a subsequent prosecution for the latter offense. Moore v. State, 59 Miss. 25, 1881 Miss. LEXIS 67 (Miss. 1881).

A person in one difficulty may be subject to conviction for committing separate assaults upon two separate adversaries and a conviction for one will not bar a conviction for the other. Teat v. State, 53 Miss. 439, 1876 Miss. LEXIS 94 (Miss. 1876).

15. – – Offenses against different governments, identity of offenses.

Bank robbery is a crime under both laws of the United States and of the State of Mississippi, and a defendant’s conviction under the laws of the United States will be no bar to his subsequent prosecution and conviction under the laws of Mississippi for the commission of the identical act for which he had previously been convicted in the federal courts. Bankston v. State, 236 So. 2d 757, 1970 Miss. LEXIS 1504 (Miss. 1970).

The legislature can constitutionally confer on municipalities the power by ordinance to punish as an offense against the municipality an act which constitutes a crime against the state. Town of Ocean Springs v. Green, 77 Miss. 472, 27 So. 743, 1899 Miss. LEXIS 98 (Miss. 1899).

A conviction of an offense under a municipal ordinance is not a bar to a prosecution by the state for same act. Johnson v. State, 59 Miss. 543, 1882 Miss. LEXIS 155 (Miss. 1882).

16. Sentence and punishment–In general.

Having failed to prove at trial that defendant was a habitual offender under Miss. Code Ann. §99-19-81, the State could not attempt to prove his habitual-offender status on remand, as that would violate the prohibition against double jeopardy set forth in Miss. Const. art. III, § 22. 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).

Decision to revoke appellant’s, an inmate’s, probation was appropriate, but a remand to the trial court was necessary because the handwritten addendum to the revocation order caused the inmate’s new sentence to exceed the five-year maximum sentence and the State conceded that the handwritten addendum imposing three years’ post-release supervision, instead of two years, was a clerical error. Although the inmate claimed that the new sentence subjected him to cruel and unusual punishment and to double jeopardy, double jeopardy was only violated if the court attempted to administer a longer sentence than what was originally conferred upon the inmate. Whitaker v. State, 22 So.3d 326, 2009 Miss. App. LEXIS 760 (Miss. Ct. App. 2009).

Inmate’s claim that the use of the robbery aggravating factor during sentencing was inappropriate as it allowed the use of the underlying felony, which elevated the crime to capital murder, was without merit on double jeopardy grounds because there was no threat of multiple prosecutions for the same offense or for repeated punishment arising from the same conviction; the sentencing phase of a capital murder trial was one part of the whole trial which included the guilt phase, and the use of the underlying felony at sentencing did not expose the inmate to double jeopardy. Brawner v. State, 947 So. 2d 254, 2006 Miss. LEXIS 625 (Miss. 2006).

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).

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 the petitioner 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).

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).

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).

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).

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).

17. Addition of a condition to a suspended sentence.

Addition of the condition of house arrest to an inmate’s suspended sentence was not an impermissible increase in the level of punishment to invoke constitutional concerns of double jeopardy under U.S. Const. Amend. V and Miss. Const. Art. 3, § 22. The inmate had not been actually acquitted or convicted in a former trial on the merits for which he was again sought to be convicted. Williams v. State, 4 So.3d 388, 2009 Miss. App. LEXIS 128 (Miss. Ct. App. 2009).

18. – – Guilty pleas, sentence and punishment.

Where appellant pleaded guilty to possession of cocaine, he was sentenced to serve ten years concurrently with a sentence for a crime he committed in Tennessee. The trial court did not violate the double jeopardy clause by accepting his guilty plea on one date and then sentencing him during a separate hearing; defendant only received one criminal sentence. Brown v. State, 920 So. 2d 1037, 2005 Miss. App. LEXIS 794 (Miss. Ct. App. 2005).

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).

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).

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).

A trial court’s imposition of a sentence of 491/2 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 491/2 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).

19. – – Habitual offenders, sentence and punishment.

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).

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).

The State would not be permitted a second chance to prove the habitual offender status of a defendant where the habitual offender portion of the sentence had been vacated due to the insufficiency of the evidence presented to prove the necessary prior convictions; Article 3, § 22 of the Mississippi Constitution would bar the State from perfecting its evidence through successive attempts. Cox v. State, 586 So. 2d 761, 1991 Miss. LEXIS 588 (Miss. 1991).

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).

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).

Const Art 3 § 22, the Double Jeopardy Clause, precluded the state from having a second chance to establish defendant’s habitual offender status under §99-19-81, where no evidence had been admitted to support such a conviction apart from evidence erroneously admitted by the trial court. De Bussi v. State, 453 So. 2d 1030, 1984 Miss. LEXIS 1826 (Miss. 1984).

20. – – Parole, probation, or suspended sentence, sentence and punishment.

Where appellant served four years of his six-year sentence for the sale of cocaine, he was released; upon the revocation of his suspended two-year sentence, the trial court violated appellant’s protection against double jeopardy by imposing a three-year term of imprisonment. The trial court exposed him to a period of incarceration exceeding the original suspended sentence. Branch v. State, 996 So. 2d 829, 2008 Miss. App. LEXIS 782 (Miss. Ct. App. 2008).

Post-conviction relief was denied in a case where a portion of a suspended sentence was revoked under Miss. Code Ann. §47-7-37 because there was no due process violation since the evidence relied upon was listed, there was no double jeopardy violation since the original sentence was reinstated, and counsel was not required since the case was not complex. Pruitt v. State, 953 So. 2d 302, 2007 Miss. App. LEXIS 203 (Miss. Ct. App. 2007).

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).

Because the inmate failed the urine test four months short of completing one year in the Intensive Supervision Program (ISP), there was no denial of due process or equal protection in denial of an evidentiary hearing, and no double jeopardy issue arose because the Mississippi Department of Corrections (MDOC) simply changed the inmate’s statute 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).

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 was previously 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).

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).

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).

Where a person, convicted of an offense less than felony, is required to enter into a bond to keep peace and to be of good behavior there is no violation of the constitution in placing him in double jeopardy for the same offense. Arnold v. State, 213 Miss. 667, 57 So. 2d 484, 1952 Miss. LEXIS 408 (Miss. 1952).

It is not violative of the section for the court, upon a conviction of an offender, to suspend the sentence except as to costs, and at a future term to impose a fine, etc. Gibson v. State, 68 Miss. 241, 8 So. 329, 1890 Miss. LEXIS 23 (Miss. 1890).

21. – – Attorney disciplinary proceedings, sentence and punishment.

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).

22. Motions to dismiss.

Where defendant was convicted of driving under the influence, and of open-container and improper stop offenses in municipal court, and he appealed to the circuit court, as to the city’s cross-appeal, the circuit court’s dismissal of the open-container and improper stop charges was, in effect, an acquittal. A reversal by the appellate court for a second trial on those two charges would have violated defendant’s constitutional right to protection from double jeopardy. McDonald v. City of Aberdeen, 906 So. 2d 774, 2004 Miss. App. LEXIS 1143 (Miss. Ct. App. 2004).

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).

23. Different elements, no double jeopardy.

Defendant’s motor-vehicle theft conviction did not violate the Double Jeopardy Clause because defendant’s acquittal of conspiracy to commit motor-vehicle theft did not preclude any other conviction based on aiding and abetting motor-vehicle theft. Peel v. State, 283 So.3d 203, 2019 Miss. App. LEXIS 104 (Miss. Ct. App. 2019).

No double-jeopardy violation was found in defendant’s convictions for armed robbery because defendant committed four offenses, simultaneously, that arose from a common nucleus of operative fact, in that defendant took property from four separate individuals, thus committing four separate crimes. Miller v. State, 192 So.3d 383, 2016 Miss. App. LEXIS 315 (Miss. Ct. App. 2016).

Trial court properly denied the inmate’s post-conviction relief motion, because the inmate’s conviction for capital murder and subsequent indictment and conviction for armed robbery did not constitute double jeopardy since each indictment charged separate and distinct offenses, involving different victims. Washington v. State, 158 So.3d 1246, 2015 Miss. App. LEXIS 119 (Miss. Ct. App. 2015).

Appellant did not experience double jeopardy because he was never prosecuted twice for the same offense; burglary and sexual battery required proof of different facts, and thus, even if the prosecution had pursued the sexual-battery charge, appellant would not have been subjected to double jeopardy since he pleaded guilty to burglary. Stamps v. State, 151 So.3d 248, 2014 Miss. App. LEXIS 651 (Miss. Ct. App. 2014).

Defendant’s right against double-jeopardy was not violated because, while the counts for fondling, under Miss. Code Ann. §97-5-23(1), and the attempted-sexual-battery, under Miss. Code. Ann. §97-1-7, stemmed from the same encounter, the elements of the crimes were not the same as each count contained an element not contained in the other. Attempted sexual battery did not contain the element of gratification of lust, while fondling did not require the element of penetration. Moore v. State, 112 So.3d 1084, 2013 Miss. App. LEXIS 207 (Miss. Ct. App. 2013).

As a conviction of possession of a firearm by a convicted felon (Miss. Code Ann. §97-37-5) required proof of a prior felony, while conviction of carrying a concealed weapon (Miss. Code Ann. §97-37-1) required proof that the weapon be concealed, each offense had an element not present in the other; therefore, defendant’s conviction of both charges did not violate the double jeopardy ban. Wilson v. State, 95 So.3d 1282, 2012 Miss. App. LEXIS 538 (Miss. Ct. App. 2012).

Defendant’s argument that the application of Miss. Code Ann. §97-37-37 constituted double jeopardy because it required proof of the same elements as the underlying crimes was procedurally barred because it was not raised at trial. Notwithstanding the procedural bar, the argument was without merit because the statute was clearly a sentence enhancement and did not set out separate elements of the underlying felony. Mayers v. State, 42 So.3d 33, 2010 Miss. App. LEXIS 88 (Miss. Ct. App.), cert. denied, 42 So.3d 24, 2010 Miss. LEXIS 437 (Miss. 2010).

Crime of sexual abuse of a vulnerable adult under Miss. Code Ann. §43-47-19 does not encompass the crime of sexual battery under Miss. Code Ann. §97-3-95, and a conviction of both offenses does not implicate double jeopardy concerns because the crimes require additional and different elements of proof; specifically, the former offense does not require proof of penetration, while the latter offense does require this proof. Additionally, abuse of a vulnerable adult requires proof that defendant willfully inflicted physical pain or injury upon a vulnerable adult, while sexual battery has no such requirement; there are additional differences in that sexual battery does not require that the victim’s abilities to provide for his or her protection from sexual contact be impaired by the infirmities of aging or that the victim be a patient or resident of a care facility, while the charge of abuse of a vulnerable adult does require this additional element. Simoneaux v. State, 29 So.3d 26, 2009 Miss. App. LEXIS 445 (Miss. Ct. App. 2009), cert. denied, 29 So.3d 774, 2010 Miss. LEXIS 115 (Miss. 2010), cert. denied, 562 U.S. 836, 131 S. Ct. 151, 178 L. Ed. 2d 38, 2010 U.S. LEXIS 6093 (U.S. 2010).

Defendant confessed to police that he choked the victim, duct taped a plastic bag around his head to suffocate the victim, placed the victim’s body in the trunk of his car, and dumped the body in the woods; double jeopardy did not bar defendant’s prosecution for both capital murder and kidnapping. The Supreme Court of Mississippi held that the crimes of capital murder and kidnapping each require proof of an element not necessary to the other. Nelson v. State, 10 So.3d 898, 2009 Miss. LEXIS 198 (Miss. 2009).

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 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. Roncali v. State, 980 So. 2d 959, 2008 Miss. App. LEXIS 223 (Miss. Ct. App. 2008).

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).

Defendant’s argument that the State should not have been able to prosecute him for capital murder, while at the same time prosecute him for conspiracy to commit capital murder was without merit because the State was required to show that defendant offered two individuals money to murder the victims, which was independent of the two individuals’ agreement with defendant that included assisting in the preparations for the man who actually did the killing. Vickers v. State, 994 So. 2d 200, 2008 Miss. App. LEXIS 208 (Miss. Ct. App.), cert. denied, 998 So. 2d 1010, 2008 Miss. LEXIS 675 (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).

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. Smith, Apr. 6, 2001, A.G. Op. #01-0175.

RESEARCH REFERENCES

ALR.

Plea of former jeopardy or of former conviction or acquittal where jury was not sworn. 12 A.L.R. 1006.

Plea of former jeopardy where jury discharged because of misconduct or disqualification of one or more of their number. 38 A.L.R. 706.

Constitutionality of statute relating to injunctions against crime or abatement of nuisance arising from violation of liquor law. 49 A.L.R. 635.

Constitutionality and construction of statute enhancing penalty for second or subsequent offense. 58 A.L.R. 20; 82 A.L.R. 345; 116 A.L.R. 209; 132 A.L.R. 91; 139 A.L.R. 673.

Plea of double jeopardy where jury was discharged because of inability of the prosecution to present testimony. 74 A.L.R. 803.

Award of venire de novo or new trial after verdict of guilty as to one or more counts and acquittal to another as permitting retrial or conviction on latter count. 80 A.L.R. 1106.

Discharge on habeas corpus after conviction as affecting claim or plea of former jeopardy. 97 A.L.R. 160.

Necessity and sufficiency of pleading by prosecution to contest defendant’s plea of former jeopardy. 113 A.L.R. 1146.

Right of court to accept verdict upon one or more counts of an indictment or information when jury is unable to reach a verdict on all counts or is silent as to part of counts, and effect of such acceptance. 114 A.L.R. 1406.

Former acquittal or conviction under indictment or other information for rape or other sexual offense which does not allege that female was under age of consent as bar to subsequent prosecution under indictment or information which alleges that she was under age of consent; and vice versa. 119 A.L.R. 1205.

Plea of former jeopardy where jury is discharged because of illness or insanity of juror. 125 A.L.R. 694.

Former jeopardy as ground for habeas corpus. 8 A.L.R.2d 285.

Conviction of lesser offense as bar to prosecution for greater on new trial. 61 A.L.R.2d 1141.

Propriety, and effect as double jeopardy, of court’s grant of new trial in criminal case on its own motion. 85 A.L.R.2d 486.

Conviction or acquittal of one offense, in court having no jurisdiction to try offense arising out of same set of facts, later charged in another court, as putting accused in jeopardy of latter offense. 4 A.L.R.3d 874.

Subsequent trial, after stopping former trial to try accused for greater offense, as constituting double jeopardy. 6 A.L.R.3d 905.

Prosecution for robbery of one person as bar to subsequent prosecution for robbery committed of another person at the same time. 51 A.L.R.3d 693.

Propriety of trial court’s declaration of mistrial or discharge of jury, without accused’s consent, on ground of prosecution’s disclosure of prejudicial matter, or making prejudicial remarks in presence of, jury, 77 A.L.R.3d 1143.

Double jeopardy as bar to retrial after grant of defendant’s motion for mistrial. 98 A.L.R.3d 997.

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.

Retrial on greater offense following reversal of plea-based conviction of lesser offense. 14 A.L.R.4th 970.

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.

Double jeopardy: various acts of weapons violations as separate or continuing offense. 80 A.L.R.4th 631.

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.

Acquittal or conviction in state court as bar to federal prosecution based on same act or transaction. 18 A.L.R. Fed. 393.

Double jeopardy considerations in federal criminal cases – Supreme Court cases. 162 A.L.R. Fed. 415.

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 146 et seq.

41 Am. Jur. Trials 383, Habeas Corpus: Pretrial Motions (double jeopardy).

CJS.

C.J.S. Criminal Law § 208.

Lawyers’ Edition.

Limitations under double jeopardy clause of Fifth Amendment upon state criminal prosecutions. 25 L. Ed. 2d 968.

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.

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 robbery 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.

Law Reviews.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond. 56 Miss L. J. 73, April, 1986.

Lesser Included Offenses in Mississippi, 74 Miss. L.J. 135, Fall, 2004.

Practice References.

Young, Trial Handbook for Mississippi Lawyers § 4:1.

JUDICIAL DECISIONS

1. Construction with Federal Constitution.

2. Searches and seizures –In general.

3. – Excessive force, searches and seizures.

4. – – Expectation of privacy, searches and seizures.

5. – – Stops and detentions, searches and seizures.

6. – – Speculative or threatened harm, searches and seizures.

7. – – Validity of statutes, searches and seizures.

8. – – Vehicular searches, searches and seizures.

9. – – Chemical tests, searches and seizures.

10. – – Inspections, searches and seizures.

11. – – Property or premises protected, searches and seizures.

12. – – Persons entitled to object, searches and seizures.

13. Search warrants–In general.

14. – – Affidavits, search warrants.

15. – – Description in affidavit or warrant, search warrants.

16. – – Showing of probable cause, search warrants.

17. – – Execution of incorrect or invalid warrant, search warrants.

18. – – Magistrates issuing warrant, search warrants.

19. – – Persons authorized to serve warrant, search warrants.

20. – – Persons authorized to execute warrant, search warrants.

21. – – Time specified, search warrants.

22. Return, search warrants.

23. Warrantless searches and seizures – In general.

24. – – Admissibility of evidence, warrantless searches and seizures.

25. – – Admissions of defendant, warrantless searches and seizures.

26. – – Firefighters, warrantless searches and seizures.

27. – – Inspections, warrantless searches and seizures.

28. – – Abandoned property, warrantless searches and seizures.

29. – – Arrest, warrantless searches and seizures.

30. – – Motor vehicle searches, warrantless searches and seizures.

31. – – Probable cause, warrantless searches and seizures.

31.5. – Reasonable suspicion – warrantless searches and seizures.

32. – – Plain view doctrine, warrantless searches and seizures.

33. – – Consent or waiver, warrantless searches and seizures.

34. – – Exigent circumstances, warrantless searches and seizures.

35. – – Damages, warrantless searches and seizures.

36. – – Unreasonable searches and seizures, warrantless searches and seizures.

37. Arrest supported by probable cause.

1. Construction with Federal Constitution.

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).

This section and the Fourth Amendment to the U. S. Constitution are identical in substance and purpose. Potter v. United States, 362 F.2d 493, 1966 U.S. App. LEXIS 5709 (5th Cir. Fla. 1966).

2. Searches and seizures –In general.

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).

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).

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).

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).

The provisions for search and seizure are strictly construed against the state and in favor of the citizen. Barker v. State, 241 So. 2d 355, 1970 Miss. LEXIS 1335 (Miss. 1970).

Provisions for search and seizure are construed strictly against the state. Lacaze v. State, 254 Miss. 523, 183 So. 2d 176, 1966 Miss. LEXIS 1556 (Miss. 1966).

Provisions for search and seizure are construed strictly against the state. Adams v. State, 202 Miss. 68, 30 So. 2d 593, 1947 Miss. LEXIS 243 (Miss. 1947).

Before proof can be made of facts discovered in a search by an officer the state must introduce the affidavit and search warrant authorizing the search or show their loss or destruction unless there has been a waiver of them at the time of the search. Cuevas v. Gulfport, 134 Miss. 644, 99 So. 503, 1924 Miss. LEXIS 316 (Miss. 1924); Wells v. State, 135 Miss. 764, 100 So. 674, 1924 Miss. LEXIS 82 (Miss. 1924); Nelson v. State, 137 Miss. 170, 102 So. 166, 1924 Miss. LEXIS 209 (Miss. 1924).

The statutes authorizing searches and seizures are to be strictly construed against the state. Turner v. State, 133 Miss. 738, 98 So. 240, 1923 Miss. LEXIS 189 (Miss. 1923); State v. Watson, 133 Miss. 796, 98 So. 241, 1923 Miss. LEXIS 190 (Miss. 1923).

This section has application to searches and seizures made through governmental agencies of the state and has no application nor bearing on unauthorized acts of private persons. Hampton v. State, 132 Miss. 154, 96 So. 165, 1923 Miss. LEXIS 43 (Miss. 1923); Smith v. State, 133 Miss. 730, 98 So. 344, 1923 Miss. LEXIS 195 (Miss. 1923); Owens v. State, 133 Miss. 753, 98 So. 233, 1923 Miss. LEXIS 188 (Miss. 1923); Taylor v. State, 134 Miss. 110, 98 So. 459, 1924 Miss. LEXIS 245 (Miss. 1924); Rignall v. State, 134 Miss. 169, 98 So. 444, 1923 Miss. LEXIS 237 (Miss. 1923); Spears v. State, 99 So. 361 (Miss. 1924); McCarthy v. Gulfport, 134 Miss. 632, 99 So. 501, 1924 Miss. LEXIS 315 (Miss. 1924); Cuevas v. Gulfport, 134 Miss. 644, 99 So. 503, 1924 Miss. LEXIS 316 (Miss. 1924); Wells v. State, 135 Miss. 764, 100 So. 674, 1924 Miss. LEXIS 82 (Miss. 1924); Jordan v. State, 135 Miss. 785, 100 So. 384, 1924 Miss. LEXIS 75 (Miss. 1924); Butler v. State, 135 Miss. 885, 101 So. 193, 1924 Miss. LEXIS 87 (Miss. 1924); Morton v. State, 136 Miss. 284, 101 So. 379, 1924 Miss. LEXIS 129 (Miss. 1924); Robinson v. State, 136 Miss. 850, 101 So. 706, 1924 Miss. LEXIS 176 (Miss. 1924); Nicaise v. State, 141 Miss. 611, 106 So. 817, 1926 Miss. LEXIS 456 (Miss. 1926); Brewer v. State, 142 Miss. 100, 107 So. 376, 1926 Miss. LEXIS 73 (Miss. 1926); Canteberry v. State, 142 Miss. 462, 107 So. 672, 1926 Miss. LEXIS 108 (Miss. 1926); Holliday v. State, 180 So. 800 (Miss. 1938).

3. – Excessive force, searches and seizures.

Trial court had not erred by finding that two police officers violated an individual’s constitutional rights by using excessive force in arresting him. The officers continued to use force on the individual after he was subdued and handcuffed; as a result, their actions were grossly disproportionate to the lack of resistance the individual offered and malicious. City of Jackson v. Powell, 917 So. 2d 59, 2005 Miss. LEXIS 755 (Miss. 2005).

4. – – Expectation of privacy, searches and seizures.

Defendant was not entitled to suppress the cocaine found in an automobile because defendant was a mere passenger in the automobile and, as such, lacked standing to challenge the search of the automobile as defendant had no expectation of privacy. Holloway v. State, 282 So.3d 537, 2019 Miss. App. LEXIS 301 (Miss. Ct. App. 2019).

Trial court did not err in denying defendant’s motion to suppress evidence found in his girlfriend’s apartment because he had no Fourth Amendment right to prevent a search or seizure; defendant failed to establish he had a legitimate expectation of privacy in the apartment because the girlfriend consistently maintained he did not stay in the apartment. McCoy v. State, 160 So.3d 705, 2014 Miss. App. LEXIS 594 (Miss. Ct. App. 2014), cert. dismissed, 160 So.3d 704, 2015 Miss. LEXIS 362 (Miss. 2015).

Failing to suppress bag of cocaine was not in violation of defendant’s due process rights or his rights under U.S. Const. Amend. IV because the action of the officers in having the bag of cocaine removed from defendant’s mouth did not shock the conscience. Ellis v. State, 21 So.3d 669, 2009 Miss. App. LEXIS 208 (Miss. Ct. App.), cert. denied, 20 So.3d 680, 2009 Miss. LEXIS 553 (Miss. 2009).

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).

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 not 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).

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).

Within the contemplation of § 23 of the Mississippi Constitution, students have a reasonable expectation of privacy in their school lockers. However, this expectation of privacy is considerably less than the student would have in the privacy of his or her home, or even, perhaps, in his or her automobile. Since that interest is less than in these other circumstances, and because it necessarily clashes with the broad discretionary authority and responsibility of school officials, a lesser showing is required before school officials may have the authority to search a student’s locker. S.C. v. State, 583 So. 2d 188, 1991 Miss. LEXIS 387 (Miss. 1991).

5. – – Stops and detentions, searches and seizures.

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).

Because the anonymous tip was suitably corroborated to provide reasonable suspicion for an investigatory stop, the officers were justified in making an investigatory stop to resolve the ambiguous situation; thus, defendant’s conviction for misdemeanor driving under the influence was lawful. Cook v. Rankin County, 168 So.3d 1089, 2013 Miss. App. LEXIS 831 (Miss. Ct. App. 2013), rev'd, 2014 Miss. LEXIS 506 (Miss. Oct. 16, 2014).

Defendant was legally stopped under the Fourth Amendment, U.S. Const. amend. IV, and Miss. Const. art. III, § 23 as: (1) he failed to use his turn signal and violated Miss. Code Ann. §63-3-707, even though there was no imminent threat of a collision between his vehicle and an officer’s vehicle that was traveling at a safe distance behind defendant’s vehicle; (2) the subsequent searches of defendant and his vehicle were lawful; (3) defendant was arrested for driving with a suspended license; (4) the glass pipes were found in a search incident to defendant’s arrest; and (5) the inventory search of defendant’s vehicle, during which the methamphetamine was discovered, was conducted according to police department policy and was limited to the areas of the vehicle where defendant’s property could reasonably be expected to be found.. Melton v. State, 118 So.3d 605, 2012 Miss. App. LEXIS 618 (Miss. Ct. App. 2012), cert. denied, 117 So.3d 330, 2013 Miss. LEXIS 375 (Miss. 2013).

Miss. Const. Art. 3, § 23, was not violated by detaining defendant briefly after a traffic stop; once he stopped defendant’s vehicle, the deputy was required to ensure that defendant’s temporary license plate was valid and that defendant had liability insurance, pursuant to Miss. Code Ann. §63-15-4(3). Wade v. State, 33 So.3d 498, 2009 Miss. App. LEXIS 645 (Miss. Ct. App. 2009).

Miss. Const. Art. 3, § 23, was not violated because the fact that defendant did not have a license plate that was “conspicuously displayed” on his rental car, as required by Miss. Code Ann. §27-19-323, provided a reasonable basis to stop defendant’s vehicle. The deputy had probable cause to believe that defendant had committed a traffic violation. Wade v. State, 33 So.3d 498, 2009 Miss. App. LEXIS 645 (Miss. Ct. App. 2009).

Where an officer saw a vehicle speed out of an apartment complex, he called in the tag and dispatch notified him it was expired; as a result, the officer had reasonable suspicion to pull over the driver over for two traffic offenses. Cole v. State, 8 So.3d 250, 2008 Miss. App. LEXIS 824 (Miss. Ct. App. 2008).

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).

An investigatory stop was proper and the investigation did not exceed the scope of the investigatory stop as to indicate a seizure where defendant evaded a road block then acted suspiciously upon the officers’ inspection of the car in which he was a passenger, causing the officers to develop a reasonable suspicion that defendant was engaged in or soon to be engaged in criminal activity. Roberson v. State, 754 So. 2d 542, 2000 Miss. App. LEXIS 1 (Miss. Ct. App. 2000).

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).

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).

6. – – Speculative or threatened harm, searches and seizures.

Livestock owners cannot invoke aid of equity to enable them to disregard regulations for dipping stock merely because of threatening invasion of constitutional right. Moss v. Mississippi Live Stock Sanitary Board, 154 Miss. 765, 122 So. 776, 1929 Miss. LEXIS 176 (Miss. 1929).

7. – – Validity of statutes, searches and seizures.

Gambling statute, in so far as it authorizes arrest without warrant for misdemeanor not committed in presence of officer making arrest, held to violate Constitution. Polk v. State, 167 Miss. 506, 142 So. 480, 1932 Miss. LEXIS 197 (Miss. 1932).

Provisions of gambling statute authorizing breaking into place for purpose of searching and making arrest without search warrant held to violate constitutional provision prohibiting unreasonable searches and seizures. Polk v. State, 167 Miss. 506, 142 So. 480, 1932 Miss. LEXIS 197 (Miss. 1932).

Chapter 244, Laws of 1924, § 1, providing that a search warrant might issue upon the affidavit of any credible person that he has reason to believe and does believe certain facts, does not violate this section. Winters v. State, 142 Miss. 71, 107 So. 281, 1926 Miss. LEXIS 66 (Miss. 1926).

Chapter 115, Laws of 1908 and c 134, Laws of 1910, relating to the unlawful possession and sale of intoxicating liquors, are constitutional. State ex rel. Attorney Gen. v. Marshall, 100 Miss. 626, 56 So. 792, 1911 Miss. LEXIS 64 (Miss. 1911); Loeb v. State, 133 Miss. 883, 98 So. 449, 1923 Miss. LEXIS 196 (Miss. 1923); Bufkin v. State, 134 Miss. 1, 98 So. 452, 1923 Miss. LEXIS 238 (Miss. 1923).

8. – – Vehicular searches, searches and seizures.

Defendant was not entitled to suppress the cocaine found in an automobile because defendant was a mere passenger in the automobile and, as such, lacked standing to challenge the search of the automobile as defendant had no expectation of privacy. Holloway v. State, 282 So.3d 537, 2019 Miss. App. LEXIS 301 (Miss. Ct. App. 2019).

Miss. Const. Art. 3, § 23, was not violated by detaining defendant after a traffic stop; defendant’s behavior and contradictory and unlikely answers aroused the deputy’s suspicions. Further, it took only three minutes for another officer to arrive with a dog who alerted for the presence of drugs in defendant’s vehicle. Wade v. State, 33 So.3d 498, 2009 Miss. App. LEXIS 645 (Miss. Ct. App. 2009).

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).

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 to check 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).

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 he saw bloody money in it, (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).

Police officers were authorized to make an inventory of the contents of an automobile in custody after it had been lawfully seized for failure to display a license tag, so that marijuana discovered in the course of the inventory was not the product of an unlawful search; the inventory of property lawfully seized is in a different legal category from that of a search of an automobile incident to a lawful arrest, or the search of a movable vehicle on probable cause that the vehicle is being used to convey contraband. Moore v. State, 261 So. 2d 126, 1972 Miss. LEXIS 1282 (Miss. 1972).

The defendant was not materially prejudiced by a search of his automobile which resulted in the discovery of items which were sent to the Federal Bureau of Investigation laboratories during a homicide investigation, where a special agent of the FBI, called as a witness for the defendant, testified that none of the items could in any way establish a connection between the defendant and the homicide victim. Taylor v. State, 254 So. 2d 728, 1971 Miss. LEXIS 1264 (Miss. 1971).

In view of the statute requiring police officers to remove a vehicle from the highway when it is a danger to the traveling public, the partial unloading of a rental truck which was so heavily loaded that it could not be moved without being partially unloaded, and the removal of the truck to the courthouse, was not an illegal search, where at the time the officers moved the truck, they did not search it or seize any of its contents, and did not know that a crime had been committed. Williamson v. State, 248 So. 2d 634, 1971 Miss. LEXIS 1476 (Miss. 1971).

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).

The search of an automobile begins when its pursuit begins. Terry v. State, 252 Miss. 479, 173 So. 2d 889, 1965 Miss. LEXIS 1123 (Miss. 1965), overruled, Strode v. State, 231 So. 2d 779, 1970 Miss. LEXIS 1605 (Miss. 1970).

The search of a vehicle without authority of law must be based upon probable cause, supported by information from a credible person, and the facts upon which the officer acts must be sufficient to constitute probable cause, and this is a judicial question for the decision of the court. Terry v. State, 252 Miss. 479, 173 So. 2d 889, 1965 Miss. LEXIS 1123 (Miss. 1965), overruled, Strode v. State, 231 So. 2d 779, 1970 Miss. LEXIS 1605 (Miss. 1970).

Constitutional rights of defendant in prosecution for assault and battery with intent to kill were violated warranting reversal of conviction where proof of state failed to show any authority for seizure of defendant’s automobile, the search of his premises and seizure of his coat and pistol, the examination of the person of defendant for a bullet wound and a photograph thereof, the sheriff’s comparison of a tire on the automobile with the dim track which he had observed at the scene, and on cross-examination of defendant the state was permitted to ask questions showing guilt of another crime, notwithstanding that record failed to show any objections thereto or that a motion for new trial was made. Brooks v. State, 209 Miss. 150, 46 So. 2d 94, 1950 Miss. LEXIS 373 (Miss. 1950).

Belief by an officer based on information from a credible person that intoxicating liquor is being transported in an automobile, is sufficient probable cause to authorize a search by him of the automobile without a warrant. Moore v. State, 138 Miss. 116, 103 So. 483, 1925 Miss. LEXIS 105 (Miss. 1925).

9. – – Chemical tests, searches and seizures.

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).

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 with regard to 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).

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 inadmissable 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).

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).

10. – – Inspections, searches and seizures.

Warrantless search of automobile junkyard, conducted pursuant to state administrative inspection statute, does not violate junkyard owner’s Fourth Amendment rights because the operation of the junkyard, part of which was devoted to vehicle dismantling, was a closely regulated business, resulting in junkyard operator having reduced expectation of privacy in business property. New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636, 96 L. Ed. 2d 601, 1987 U.S. LEXIS 2725 (U.S. 1987).

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).

No search warrant is necessary in entering premises for sanitary inspections and to investigate conditions detrimental to health so long as no resort to force even of the mildest nature is required, and this is especially true with respect to a restaurant business. Grillis v. State, 196 Miss. 576, 17 So. 2d 525, 1944 Miss. LEXIS 237 (Miss. 1944).

11. – – Property or premises protected, searches and seizures.

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 two officers went upon the premises of the defendant without a search warrant and purchased intoxicating liquor, this evidence was not obtained by illegal search and was not excludable on the ground of unlawful search and seizure because no search was involved. Peebles v. State, 57 So. 2d 263 (Miss. 1952).

12. – – Persons entitled to object, searches and seizures.

Defendant was not entitled to suppress the cocaine found in an automobile because defendant was a mere passenger in the automobile and, as such, lacked standing to challenge the search of the automobile. Holloway v. State, 282 So.3d 537, 2019 Miss. App. LEXIS 301 (Miss. Ct. App. 2019).

Where firefighters discovered a locked metal box in defendant’s home after they extinguished a fire and turned the box over to the police, defendant lacked standing to challenge the search of the box as unlawful because he denied ownership of the box when questioned by the police. King v. State, 987 So. 2d 490, 2008 Miss. App. LEXIS 404 (Miss. Ct. App. 2008).

Where the proof shows that a portion of a residence is in the sole, separate, and exclusive possession of an individual other than the one named by the search warrant, that individual has a reasonable expectation of privacy in his or her solely occupied portion. Graves v. State, 708 So. 2d 858, 1997 Miss. LEXIS 743 (Miss. 1997).

Citizens may challenge governmental actions contrary to law where the action would otherwise escape challenge. Fordice v. Thomas, 649 So. 2d 835, 1995 Miss. LEXIS 34 (Miss. 1995), but see USPCI of Mississippi v. State ex rel. McGowan, 688 So. 2d 783, 1997 Miss. LEXIS 42 (Miss. 1997).

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 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 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).

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).

As to the occupant of an automobile who was neither its owner nor driver, any search of the vehicle was not unlawful although the search was made without a warrant, and such person could not object to the admission in evidence at his trial on a charge of burglary of articles which the searching officers had discovered. Bradshaw v. State, 192 So. 2d 387, 1966 Miss. LEXIS 1248 (Miss. 1966), cert. denied, 389 U.S. 941, 88 S. Ct. 299, 19 L. Ed. 2d 293, 1967 U.S. LEXIS 397 (U.S. 1967).

No constitutional right of an accused against unreasonable search and seizure is violated hereunder, unless the houses and possessions searched are the property of the person complaining or unless he is entitled to or is exercising possession thereof under such circumstances as to make him the owner for the time being. Brown v. State, 192 Miss. 314, 5 So. 2d 426, 1941 Miss. LEXIS 40 (Miss. 1941).

Where officers had a search warrant for the search of lands, premises and possessions of a defendant charged with unlawful possession of intoxicating liquors, defendant could not complain of violation of this section because the liquors were found on adjoining premises as to which the officers had no search warrant and in which defendant had no right of possession as would make him the owner thereof for the time being. Brown v. State, 192 Miss. 314, 5 So. 2d 426, 1941 Miss. LEXIS 40 (Miss. 1941).

13. Search warrants–In general.

Defendant was not entitled to suppress cocaine found in the house in which defendant was staying because the search was based on probable cause and a valid search warrant—as police officers’ observations corroborated the anonymous tips they had received about defendant selling cocaine and marijuana out of the house and the officers observed defendant attempting to eat marijuana when the automobile in which defendant was a passenger was stopped shortly after leaving the house—and the officers reasonably relied on a facially valid search warrant. Holloway v. State, 282 So.3d 537, 2019 Miss. App. LEXIS 301 (Miss. Ct. App. 2019).

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).

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 base 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).

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).

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).

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).

Search warrant issued in connection with a prosecution for violation of liquor laws with no return day named therein is void and cannot be amended. Buxton v. State, 205 Miss. 692, 39 So. 2d 310, 1949 Miss. LEXIS 460 (Miss. 1949).

Search warrant on which search of premises has been made, evidence obtained, and defendant convicted, is functus officio; that is, it has fulfilled purpose of its creation and is of no further virtue or effect. Riley v. State, 204 Miss. 562, 37 So. 2d 768, 1948 Miss. LEXIS 389 (Miss. 1948).

In the absence of a provision to the contrary, a justice of the peace of one judicial district of the county may issue a search warrant to be served in another judicial district of the county. Goffredo v. State, 145 Miss. 66, 111 So. 131, 1927 Miss. LEXIS 141 (Miss. 1927).

A warrant cannot be issued to search a person and such warrant is to such extent void. Comby v. State, 141 Miss. 561, 106 So. 827, 1926 Miss. LEXIS 465 (Miss. 1926); Duckworth v. Taylorsville, 142 Miss. 440, 107 So. 666, 1926 Miss. LEXIS 105 (Miss. 1926); Robinson v. State, 143 Miss. 247, 108 So. 903, 1926 Miss. LEXIS 262 (Miss. 1926).

A search warrant must be returnable within a reasonable time after its issuance and the time within which it is to be executed fixed in the warrant, and after the return date of the warrant it becomes functus officio and cannot be executed. Taylor v. State, 137 Miss. 217, 102 So. 267, 1924 Miss. LEXIS 329 (Miss. 1924).

A search warrant directed to the wrong officer is not necessarily void but may be amended. Matthews v. State, 134 Miss. 807, 100 So. 18, 1924 Miss. LEXIS 327 (Miss. 1924).

14. – – Affidavits, search warrants.

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,—So.3d —, 2018 Miss. LEXIS 128 (Miss. Mar. 15, 2018).

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).

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).

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).

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).

Trial court may allow state opportunity at trial to amend proof and present original affidavit containing judge’s jurat as opposed to defective copy of affidavit presented at suppression hearing. 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 marijuana possession, the failure of the justice court judge to sign the jurat of the affidavit did not render the search warrant fatally defective where the sworn statement of the police officer affiant, which is the most critical aspect of the validity of the affidavit, was properly taken and where defendant did not challenge the validity of the finding of probable cause. Powell v. State, 355 So. 2d 1378, 1978 Miss. LEXIS 2004 (Miss. 1978).

Evidence obtained during a search under a warrant was inadmissible in a prosecution for unlawful possession of intoxicating liquor, where the warrant was issued upon an affidavit which stated that the affiant had information from reliable informants that an illegal whisky distillery was concealed on the defendant’s property and that the whisky was being stored for purposes of sale, such affidavit not stating facts upon which the justice could judicially determine probable cause. Routh v. State, 230 So. 2d 562, 1970 Miss. LEXIS 1553 (Miss. 1970).

Affidavit form, signed by sheriff, for search warrant in intoxicating liquor case, presented to justice of the peace by deputy sheriff, did not comply with the requirement of this section that search warrant be supported by oath or affirmation, where sheriff did not personally appear before the justice of the peace; and, accordingly, evidence obtained under the search warrant so issued was illegally obtained and inadmissible. Boyd v. State, 206 Miss. 573, 40 So. 2d 303, 1949 Miss. LEXIS 285 (Miss. 1949).

Issuance of search warrants in case involving possession of intoxicating liquors upon the statutory affidavit, that the affiant “has reason to believe and does believe,” etc., does not violate Constitution. Armstrong v. State, 195 Miss. 300, 15 So. 2d 438, 1943 Miss. LEXIS 155 (Miss. 1943).

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).

Where proceedings for the abatement of the nuisances of selling intoxicating liquors and carrying on gambling on certain premises were instituted by a bill in chancery sworn to by a private citizen, particularly describing the place, and the character of appliances or property used in connection with such business, the seizure of the property in question was made upon an affidavit substantially in accord with the requirements of this section although not in name a search warrant. Caravella v. State, 185 Miss. 1, 186 So. 653, 1939 Miss. LEXIS 118 (Miss. 1939).

Under statute setting forth form of search warrant for stolen property, there must be an allegation both that the affiant has reason to believe and that he does believe that such stolen articles are concealed on premises, to constitute probable cause required for search of a person’s premises for stolen goods, and mere suspicion, however strong, is not sufficient. Jones v. State, 180 Miss. 210, 177 So. 35, 1937 Miss. LEXIS 108 (Miss. 1937).

An affidavit for search warrant, stating that affiant had suspicion that stolen hog was concealed on premises of accused and omitting words “and affiant has reason to believe and does believe” that stolen hog was on premises of accused, was insufficient to support valid search warrant. Jones v. State, 180 Miss. 210, 177 So. 35, 1937 Miss. LEXIS 108 (Miss. 1937).

Affidavit for search warrant stating that affiant had suspicion that stolen goods were concealed on premises of accused, instead of stating in statutory words that affiant “had reason to believe and does believe” that stolen goods were on premises of accused, was insufficient to support valid search warrant, since under Constitution suspicion is not sufficient foundation for issuance of search warrant. Bouchillon v. State, 179 Miss. 791, 177 So. 34, 1937 Miss. LEXIS 88 (Miss. 1937).

Signing affidavit by affiant in presence of justice affixing jurat thereto held to constitute necessary “oath” for affidavit for search warrant. Atwood v. State, 146 Miss. 662, 111 So. 865, 1927 Miss. LEXIS 231 (Miss. 1927).

The affidavit must be made for a search warrant, but the mere failure of affiant to sign the affidavit does not render the warrant void. Winters v. State, 142 Miss. 71, 107 So. 281, 1926 Miss. LEXIS 66 (Miss. 1926).

If search warrant and affidavit have been lost, copies thereof are admissible in evidence on defendant’s demand. Mitchell v. State, 139 Miss. 108, 103 So. 815, 1925 Miss. LEXIS 129 (Miss. 1925).

The affidavit for a search warrant must allege in substance that the officer has reason to believe and “does believe” before a valid warrant can issue thereon for search and seizure. Porter v. State, 135 Miss. 789, 100 So. 377, 1924 Miss. LEXIS 70 (Miss. 1924); Morrison v. State, 140 Miss. 221, 105 So. 497, 1925 Miss. LEXIS 252 (Miss. 1925).

A material deficiency in the affidavit or warrant will render the warrant void. Turner v. State, 133 Miss. 738, 98 So. 240, 1923 Miss. LEXIS 189 (Miss. 1923); State v. Watson, 133 Miss. 796, 98 So. 241, 1923 Miss. LEXIS 190 (Miss. 1923).

The affidavit for the search warrant may be made on information and belief. Loeb v. State, 133 Miss. 883, 98 So. 449, 1923 Miss. LEXIS 196 (Miss. 1923).

15. – – Description in affidavit or warrant, search warrants.

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)

Because a search warrant insufficiently described the stolen goods to be seized, and there was no probable cause for any drug-related language to be included in it, the warrant was invalid; there was no probable cause to issue a search warrant for any illegal drug activity because there was no substantial basis for the inclusion of the language related to drug activity. Sutton v. State, 238 So.3d 1150, 2018 Miss. LEXIS 128 (Miss. 2018)

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).

There was no error in the denial of a motion to suppress a black box taken from the floorboard of a truck, or the data contained therein, because removal of the black box was within the scope of the search warrant, which specifically stated that the resulting search was to include items inside the vehicle that tended to demonstrate that defendant was intoxicated at the time of an accident. Taylor v. State, 94 So.3d 298, 2011 Miss. App. LEXIS 238 (Miss. Ct. App. 2011), cert. denied, 96 So.3d 732, 2012 Miss. LEXIS 371 (Miss. 2012).

A general search warrant for “documents relating to a chop shop” was not sufficiently stated with particularity. 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 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).

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).

The search of a one-story building, pursuant to an affidavit and search warrant for a 2-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 2-story building-on the property, the defendant owned all the property but resided in the one-story building, the officers went to the unoccupied 2-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).

A storm shed was within the “curtilage” of a residence and, therefore, within the scope of a search warrant that 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).

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).

Although only two items taken in a particular burglary were named in a search warrant, stolen property taken in a number of other burglaries was lawfully seized by the officers, where the officers were lawfully in the house, the property was in open view and most of it was recognized as stolen property. Bounds v. Hardy, 261 So. 2d 119, 1972 Miss. LEXIS 1279 (Miss. 1972).

Although only two items taken in a particular burglary were named in the search warrant, stolen property taken in a number of other burglaries was lawfully seized by the officers, where the officers were lawfully in the house, the property was in open view, and much of it was recognized as stolen property, and where, if the officers had to leave and secure a warrant describing each piece of property, an intolerable burden would be placed on them, and a premium would be bestowed upon the criminal because of a multitude of burglaries. Bounds v. Hardy, 261 So. 2d 119, 1972 Miss. LEXIS 1279 (Miss. 1972).

The description of property to be seized under a search warrant as “stolen property” is no description and utterly void, for the thing or things to be seized, other than contraband, must be described with particularity. Conn v. State, 251 Miss. 488, 170 So. 2d 20, 1964 Miss. LEXIS 366 (Miss. 1964).

Where a search warrant authorizes search of the residence and outhouses of the unknown owner of the 80 acre tract of land described as “all of SW 1/4 of § 28, township 5 north, range 2 east, lying north of Pearson and Whitfield Road in Rankin County, Mississippi,” this search warrant contained sufficient description of property. Watkins v. State, 67 So. 2d 292 (Miss. 1953).

Any description of places or things to be searched, which is sufficient to enable officer to locate them with reasonable certainty, is in compliance with this constitutional requirement. Serio v. Brookhaven, 208 Miss. 620, 45 So. 2d 257, 1950 Miss. LEXIS 279 (Miss. 1950).

Description of premises of defendant in affidavit and search warrant as “located at 97 feet on First Street by 148 feet on Warran Avenue, Lot A, Block 4, Swalm Subdivision,” and authorizing search of buildings and vehicles owned or used by defendant located as stated, is sufficient description of lot used by defendant, 50 feet by 60 feet, on corner, being portion of described property which was owned by defendant’s family, since description was sufficient to enable officer to locate with reasonable certainty place to be searched, and officer did locate it by means of such description without difficulty. Serio v. Brookhaven, 208 Miss. 620, 45 So. 2d 257, 1950 Miss. LEXIS 279 (Miss. 1950).

Search warrant authorizes search of locked metal box or locker in outhouse in backyard of lot on which defendant’s resident is situated when property to be searched, as described in both affidavit and warrant, includes residence and outhouses on premises. Outlaw v. State, 208 Miss. 13, 43 So. 2d 661, 1949 Miss. LEXIS 402 (Miss. 1949).

Descriptions in search warrants need not be positively specific and definite, but are sufficient if the places and things to be searched are designated in such manner that the officer making the search may locate them with reasonable certainty. West v. State, 42 So. 2d 751 (Miss. 1949).

Description in search warrant of defendant’s residence as being located on named road 1 1/2 miles from specified city was not insufficient merely because it did not state in which direction from the city limits the premises to be searched was located. West v. State, 42 So. 2d 751 (Miss. 1949).

A warrant which describes the place to be searched as “in the residence” and the outhouses and grounds “near the residence” of a specified person does not authorize a search of the residence of another 150 yards away, even though the residence of such other person is owned by the person specified in the warrant and is located on the same tract of land. Cox v. State, 201 Miss. 568, 29 So. 2d 661, 1947 Miss. LEXIS 421 (Miss. 1947).

A search warrant describing location to be searched as in the dwelling house, outhouses on the premises used or occupied by a named individual on the place of another named individual “on cross roads 2 miles south of Soreby’s Store in 2nd house on left side of road,” was sufficiently definite so as to be valid where the officer located the place to be searched from such description. Williams v. State, 198 Miss. 848, 23 So. 2d 692, 1945 Miss. LEXIS 260 (Miss. 1945).

Evidence obtained under valid search warrant was admissible in prosecution for possessing integral parts of a distillery, where parts of the distillery were in possession of defendant at the place described in the search warrant. Williams v. State, 198 Miss. 848, 23 So. 2d 692, 1945 Miss. LEXIS 260 (Miss. 1945).

Seizure of shotgun shells, while searching defendant’s home under liquor search warrant not describing shells, held unlawful, since possession of shells was not unlawful per se. Cofer v. State, 152 Miss. 761, 118 So. 613, 1928 Miss. LEXIS 217 (Miss. 1928).

Affidavit for search warrant, describing place as estate of deceased person, is not sufficient. Parkinson v. State, 145 Miss. 237, 110 So. 513, 1926 Miss. LEXIS 21 (Miss. 1926).

The warrant and affidavit must give the name of the person in possession of the premises to be searched. Brewer v. State, 142 Miss. 100, 107 So. 376, 1926 Miss. LEXIS 73 (Miss. 1926).

Officers lawfully on the premises may testify to facts discovered by them and may seize a still kept in violation of law and give evidence of such facts although such officer held search warrant for discovery of intoxicating liquor only. Reynolds v. State, 136 Miss. 329, 101 So. 485, 1924 Miss. LEXIS 140 (Miss. 1924).

A search warrant to search one automobile is not good to search a different automobile. Vaugh v. State, 136 Miss. 314, 101 So. 439 (1924), citing Tucker v. State, 128 Miss. 211, 90 So. 845, 1922 Miss. LEXIS 108 (Miss. 1922); Butler v. State, 129 Miss. 778, 93 So. 3, 1922 Miss. LEXIS 88 (Miss. 1922); Owens v. State, 133 Miss. 753, 98 So. 233, 1923 Miss. LEXIS 188 (Miss. 1923).

The affidavit and the search warrant must specifically designate the place of places to be searched and the person or thing to be seized. Miller v. State, 129 Miss. 774, 93 So. 2, 1922 Miss. LEXIS 87 (Miss. 1922); Smith v. State, 133 Miss. 730, 98 So. 344, 1923 Miss. LEXIS 195 (Miss. 1923); Owens v. State, 133 Miss. 753, 98 So. 233, 1923 Miss. LEXIS 188 (Miss. 1923); State v. Watson, 133 Miss. 796, 98 So. 241, 1923 Miss. LEXIS 190 (Miss. 1923); Loeb v. State, 133 Miss. 883, 98 So. 449, 1923 Miss. LEXIS 196 (Miss. 1923); Fatimo v. State, 134 Miss. 175, 98 So. 537, 1924 Miss. LEXIS 249 (Miss. 1924); Falkner v. State, 134 Miss. 253, 98 So. 691, 1924 Miss. LEXIS 259 (Miss. 1924); Spears v. State, 99 So. 361 (Miss. 1924); Butler v. State, 135 Miss. 885, 101 So. 193, 1924 Miss. LEXIS 87 (Miss. 1924); Sanders v. State, 141 Miss. 615, 106 So. 822, 1926 Miss. LEXIS 460 (Miss. 1926); Webb v. Sardis, 143 Miss. 92, 108 So. 442, 1926 Miss. LEXIS 245 (Miss. 1926).

16. – – Showing of probable cause, search warrants.

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).

Trial court did not err by finding that there was a substantial basis for a finding of probable cause to issue a search warrants for defendant’s person and vehicle because the oral testimony of the officer who requested the search warrant 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).

Defendant’s conviction for the possession of child pornography was appropriate because there was a substantial basis for the issuance of the search warrant. The probable cause for the search warrant was not rendered stale simply because an investigator first discovered the allegations 9 or 10 months after the alleged incident occurred and that was especially true in the context of allegations by small children, who might be too ashamed or frightened to inform others that something inappropriate might have occurred because they were expressly ordered or threatened to remain silent. Renfrow v. State, 34 So.3d 617, 2009 Miss. App. LEXIS 775 (Miss. Ct. App. 2009), cert. dismissed, 31 So.3d 1217, 2010 Miss. LEXIS 213 (Miss. 2010).

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).

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).

When a magistrate issuing a search warrant is given false facts which are indispensable to a probable cause determination, probable cause cannot exist, and the fruits of the search must be suppressed, even if the search warrant was properly issued based on the false facts which were presented to the magistrate; the appellate court reversed and remanded defendant’s case to the trial court to consider whether a police officer knowingly and intentionally gave false and misleading information to the magistrate judge issuing the search warrant. Turner v. State, 945 So. 2d 992, 2007 Miss. App. LEXIS 5 (Miss. Ct. App. 2007).

Motion to suppress evidence was denied in a case involving church burglaries because there was probable cause to issue a warrant to search defendant’s residence based on statements from a witness that saw defendant and his friend near the church in the middle of the night, a witness that saw defendant carve a certain phrase found at the church on another wall, a neighbor who saw defendant exit a vehicle with the lights off, and another party who saw defendant in possession of property matching the description of some taken from the church. Dimaio v. State, 951 So. 2d 581, 2006 Miss. App. LEXIS 782 (Miss. Ct. App. 2006).

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, because the warrant authorizing the blood alcohol test was valid and defendant’s constitutional rights had not been 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).

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 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).

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).

Where appellate court held that motion to suppress should have been granted, it did not find fault due to the lack of the word “reliable” in the affidavit or to underlying facts and circumstances but found it because nothing in the record suggested that the officers had presented the justice with any basis of reliability 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).

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).

Probable cause under Mississippi Constitution Art. 3, § 23 did not exist for the issuance of a search warrant because the information given to police by a confidential informant (CI) was not independently corroborated, she was unknown to the police, and no indicia of reliability were either included in the affidavit or presented orally to the issuing judge. State v. Woods, 866 So. 2d 422, 2003 Miss. LEXIS 531 (Miss. 2003).

Affidavit in support of the warrant to search defendant’s apartment lacked veracity or reliability as it was completely devoid of corroborating information to support confidential informant’s claims that she had seen crack cocaine in the apartment; the trial court properly granted defendant’s motion to suppress his confession and the seized cocaine as fruit of the poisonous tree. State v. Woods, 2002 Miss. LEXIS 402 (Miss. Dec. 5, 2002), op. withdrawn, sub. op., 866 So. 2d 422, 2003 Miss. LEXIS 531 (Miss. 2003).

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).

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).

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).

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).

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).

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 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).

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).

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).

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).

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).

An affidavit stating that a reliable informer told the police officer affiant that he had observed narcotics in the apartment and had purchased narcotics from someone in the house on past occasions, and that there had been a two-week continual surveillance of the house revealing that people left the house in an intoxicated condition, was sufficient to allow the magistrate to determine the existence of probable cause for search of the house. Holland v. State, 263 So. 2d 566, 1972 Miss. LEXIS 1338 (Miss. 1972).

An affidavit which stated not only that the informant had seen marijuana in the place to be searched, but that the informant had actually furnished the officer a sample of the drug, that the officer had personally observed known users of marijuana go to and from the place sought to be searched, the actual known facts plus the surrounding circumstances were such as to lead a reasonably prudent and cautious man to believe that the law was being violated and that contraband was being kept in the residence of the defendant at the time the warrant was issued, and the facts stated in the affidavit were sufficient to establish probable cause, resulting in the proper issuance of the search warrant involved. 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).

It is no longer the law of Mississippi that the issuance of a search warrant is a conclusive judicial finding of the magistrate of the existence of probable cause; inquiry may now be made at the trial as to whether probable cause existed before the issuance of the warrant. Barker v. State, 241 So. 2d 355, 1970 Miss. LEXIS 1335 (Miss. 1970).

An affidavit stating that the defendant had come to the informant’s home with three marijuana cigarettes which he gave to the informant’s wife at a time when the informant was not home, some two weeks prior to the issuance of a search warrant, was not based on the personal knowledge of the informant and contained no information that an offense was being committed on the premises to be searched, and was not sufficient for a reasonable finding that probable cause existed for a search of the defendant’s residence. Barker v. State, 241 So. 2d 355, 1970 Miss. LEXIS 1335 (Miss. 1970).

In determining whether probable cause existed for the issuance of a search warrant based upon information received by officers from an informant, a two-part test is applicable; part one requires that the magistrate have been informed of some of the underlying circumstances from which the informer reached his conclusions-that is the magistrate must have been reasonably satisfied that the informer acquired his knowledge by personal observation or in some other dependable manner, while part two requires that the magistrate have known some of the underlying circumstances from which the officers concluded that the informer was credible or his information reliable. Barker v. State, 241 So. 2d 355, 1970 Miss. LEXIS 1335 (Miss. 1970).

Where there was nothing in the affidavit upon which to base a finding of probable cause, and it was incapable of being aided by the unsworn statement of the affiant to the magistrate that he had bought a half pint of whisky at the premises to be searched, the search warrant was improperly issued. Northcutt v. State, 206 So. 2d 824, 1967 Miss. LEXIS 1245 (Miss. 1967).

Information obtained from an anonymous telephone informer that the defendant would be transporting whisky in a certain automobile at a certain place and time does not constitute probable cause for the search of the defendant’s automobile and the seizure of liquor found there. Terry v. State, 252 Miss. 479, 173 So. 2d 889, 1965 Miss. LEXIS 1123 (Miss. 1965), overruled, Strode v. State, 231 So. 2d 779, 1970 Miss. LEXIS 1605 (Miss. 1970).

A judicial finding of the officer issuing the search warrant, of the existence of probable cause therefor, is conclusive and cannot be inquired into. Armstrong v. State, 195 Miss. 300, 15 So. 2d 438, 1943 Miss. LEXIS 155 (Miss. 1943).

Under statute providing for issuance of search warrant where person has reason to believe and does believe that stolen articles are concealed on person’s premises, information upon which he has reason to believe and does believe must be such as would lead a reasonably prudent person to believe facts which, if established, would be sufficient to amount to a probability. Jones v. State, 180 Miss. 210, 177 So. 35, 1937 Miss. LEXIS 108 (Miss. 1937).

17. – – Execution of incorrect or invalid warrant, search warrants.

Trial court did not err by admitting evidence found during the execution of a search warrant based on a clerical error requiring officers to knock and announce; even though officers merely entered after pulling open a chain, the evidence showed they specifically requested a warrant not requiring a knock and announce. Caldwell v. State, 938 So. 2d 317, 2006 Miss. App. LEXIS 674 (Miss. Ct. App. 2006).

Where defendant was arrested for speeding and reckless driving, defendant was subjected 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, these searches being exceptions to the warrant requirement. Jackson v. State, 856 So. 2d 412, 2003 Miss. App. LEXIS 258 (Miss. Ct. App. 2003).

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).

Search, under invalid warrant, of defendant’s automobile while defendant was in jail for burglary, violated Constitution; automobile being “possession” of defendant. Millette v. State, 167 Miss. 172, 148 So. 788, 1933 Miss. LEXIS 123 (Miss. 1933).

18. – – Magistrates issuing warrant, search warrants.

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 interlined language. Strange v. State, 530 So. 2d 1336, 1988 Miss. LEXIS 349 (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).

A justice of the peace has jurisdiction to issue a search warrant on proper affidavit made before him, to be executed in any part of the county and may be made returnable to the proper court, but an error in making it returnable to himself in the wrong district does not render the warrant void. Reynolds v. State, 136 Miss. 329, 101 So. 485, 1924 Miss. LEXIS 140 (Miss. 1924).

A search warrant issued by a city clerk is void. Robinson v. State, 135 Miss. 774, 100 So. 377, 1924 Miss. LEXIS 69 (Miss. 1924).

The mayor of a municipal corporation who is ex officio justice of the peace may issue a search warrant to be served anywhere within the limits of his county the same as other justices of the peace of the county. Falkner v. State, 134 Miss. 101, 98 So. 345, 1923 Miss. LEXIS 236 (Miss. 1923).

19. – – Persons authorized to serve warrant, search warrants.

An agent of the alcoholic beverage control division did not have authority to serve a search warrant issued for the purpose of making a search for illegal gambling equipment, since such agents have no police powers other than those expressly granted by the provisions of this section or by the provisions of the local option alcoholic beverage control law. Presley v. State, 229 So. 2d 830, 1969 Miss. LEXIS 1259 (Miss. 1969).

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 Code 1942 § 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 the 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).

20. – – Persons authorized to execute warrant, search warrants.

An unreasonable search characterized a search for liquor, over objection of the owner of the premises, by a district attorney with the original search warrant in his pocket before a deputy sheriff arrived in the house and laid a copy of the warrant on a table. Adams v. State, 202 Miss. 68, 30 So. 2d 593, 1947 Miss. LEXIS 243 (Miss. 1947).

21. – – Time specified, search warrants.

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).

22. Return, search warrants.

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).

23. Warrantless searches and seizures – In general.

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 consequently, 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).

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).

In a possession of precursor drugs with knowledge that the drugs would be used to manufacture a controlled substance case, after a drug store clerk informed the police that two suspects 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 officers investigatory stop of the driver’s car, in which defendant was a passenger, was entirely proper and the driver’s consent to search 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 and 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).

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).

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), op. withdrawn, sub. op., 2003 Miss. LEXIS 208 (Miss. Apr. 10, 2003), op. withdrawn, sub. op., 842 So. 2d 565, 2003 Miss. LEXIS 166 (Miss. 2003).

Mississippi Supreme Court adopts the Leon good faith exception to warrantless searches. White v. State, 2002 Miss. LEXIS 311 (Miss. Oct. 24, 2002), op. withdrawn, sub. op., 2003 Miss. LEXIS 208 (Miss. Apr. 10, 2003), op. withdrawn, sub. op., 842 So. 2d 565, 2003 Miss. LEXIS 166 (Miss. 2003).

An officer cannot obviate the necessity of obtaining a search warrant before invading the private premises of a citizen merely by carrying with him other persons who are not officers to make the search. Holder v. State, 230 Miss. 792, 93 So. 2d 841, 1957 Miss. LEXIS 423 (Miss. 1957).

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).

To establish probable cause founded upon information received from someone warranting a search by a law enforcement officer without a search warrant, the law requires that the information upon which the law enforcement officer acts, when not his personal information, must be given by a credible person-credible in the legal sense, as being a person whose known standing or reputation in the community for veracity and reliability entitled him to belief by a reasonably prudent person, and the facts must be shown to be within the knowledge of the informant, it not being sufficient merely to show that the officer actually believed the information to be true; and accordingly, a search of a defendant’s automobile, leading to a prosecution for the unlawful possession of intoxicating liquors, based upon information obtained by the searching officer from a negro who had been before the court a number of times for violation of the liquor laws and not shown to be within the personal knowledge of the informant, was illegal. McGowan v. State, 184 Miss. 96, 185 So. 826, 1939 Miss. LEXIS 50 (Miss. 1939), overruled, Strode v. State, 231 So. 2d 779, 1970 Miss. LEXIS 1605 (Miss. 1970).

Where circuit judge directed deputy sheriff to obtain wine and deputy went to defendant’s place of business and informed defendant that he desired to purchase wine for circuit judge, and defendant told deputy that if judge wanted it to take it without paying for it, manner in which wine was secured did not violate unreasonable search or seizure provision of Constitution. Sacco v. Sacco, 174 So. 248 (Miss. 1937).

24. – – Admissibility of evidence, warrantless searches and seizures.

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,—So.3d —, 2018 Miss. LEXIS 54 (Miss. Feb. 1, 2018).

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,—So.3d —, 2018 Miss. LEXIS 54 (Miss. Feb. 1, 2018).

Defendant was not entitled to suppress a small amount of methamphetamine that was seized by conservation officers when they entered onto the private property of defendant’s grandparent because the area where the evidence was seized was on an open field across the road from defendant’s home and outside the curtilage of defendant’s home. Therefore, defendant lacked standing to contest the search as defendant did not have a reasonable expectation of privacy on the open land of defendant’s grandparent. Tullos v. State, 287 So.3d 1014, 2019 Miss. App. LEXIS 598 (Miss. Ct. App. 2019).

Trial court did not err in denying defendant’s motion to suppress as a deputy had reasonable suspicion to stop defendant because the anonymous tips stated that certain named individuals would be traveling in a specific car heading to a particular location, and that those individuals were involved in the robbery of the victim’s liquor store; and, when the deputy saw the car matching the description in the be-on-the-lookout notice, he observed one of the individuals allegedly involved in the robbery in the passenger seat; and because defendant’s flight was sufficient for the deputy to follow in pursuit. Hamp v. State, 207 So.3d 684, 2016 Miss. App. LEXIS 790 (Miss. Ct. App. 2016).

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).

Motion to suppress evidence was denied in a drug case because, even though there was an anonymous tip, deputies had sufficient evidence to warrant a further investigation; the caller gave fresh information, deputies were escorted to defendant’s trailer by his mother, and a search warrant was obtained due to other suspicious circumstances that occurred while the deputies were on the property. Four people were seen running from defendant’s trailer, and deputies thought that the trailer was on fire due to smoke. Baker v. State, 991 So. 2d 185, 2008 Miss. App. LEXIS 563 (Miss. Ct. App. 2008).

Motion to suppress evidence was denied in an armed robbery case because police had a reasonable suspicion for stopping defendant while investigating the crime; defendant was observed near the robbery about 15 minutes later, and he and the other people with him fit the description of the perpetrators. Carter v. State, 965 So. 2d 705, 2007 Miss. App. LEXIS 287 (Miss. Ct. App. 2007).

There was adequate support for the trial judge to deny defendant’s motion to suppress the evidence under the Fourth Amendment and Miss. Const. Art. 3, § 23 because: (1) the initial encounter with defendant could be properly characterized as a voluntary conversation; (2) there was no illegal detention of defendant; and (3) defendant’s initial consent and then the withdrawal of his consent after suspicious items were found gave the officers probable cause to believe that more evidence of the manufacture and use of methamphetamine was located on defendant’s property, and they obtained a search warrant and uncovered more items. Melton v. State, 950 So. 2d 1067, 2007 Miss. App. LEXIS 121 (Miss. Ct. App. 2007).

Consent alone is sufficient to permit the taking of a blood sample, and there is no need for a search warrant or exigent circumstances; where a defendant wishes for the trial court to consider whether diminished capacity made his consent ineffective, he has the burden of introducing evidence to raise that issue. Sumrall v. State, 955 So. 2d 332, 2006 Miss. App. LEXIS 404 (Miss. Ct. App. 2006), cert. denied, 949 So. 2d 37, 2007 Miss. LEXIS 137 (Miss. 2007).

Although rape defendant’s consent to procurement of pubic hairs was improperly obtained 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).

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).

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).

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).

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).

Warrantless arrest of murder suspect is based upon probable cause where suspect admits having passed marked $2 bill which was stolen during murder-robbery and suspect matches description of person who passed bill; even if arrest were illegal, statement given by suspect following arrest is admissible at trial where intervening circumstances and nonexistence of flagrant violation by police indicate that statement is voluntarily given. Swanier v. State, 473 So. 2d 180, 1985 Miss. LEXIS 2155 (Miss. 1985).

Where police officer who had obtained a search warrant allowing a search of defendant’s apartment, saw defendant and 2 other people driving away from the house in defendant’s car, and police officer testified that he stopped defendant to serve warrant and ordered the occupant out of the car, and during a “patdown” of defendant, police officer found 3 boxes containing marijuana and upon a search of the automobile 3 additional boxes of marijuana were found, the search of the defendant was an illegal search, and the contraband obtained as a result was inadmissible in evidence. Keys v. State, 283 So. 2d 919, 1973 Miss. LEXIS 1235 (Miss. 1973).

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).

Where the driver of a rental truck had been in jail all night after an arrest on an invalid driver’s license charge, a warrantless and detailed inspection the next day of the contents of the truck by officers who did not then know that a crime involving the contents of the truck had been committed, was not incident to a lawful arrest; and the search, which revealed that a crime involving stolen property had been committed, was illegal and evidence obtained by it was inadmissible. Williamson v. State, 248 So. 2d 634, 1971 Miss. LEXIS 1476 (Miss. 1971).

Where an automobile was used in a crime and provided one of the means by which the defendants were apprehended and identified, it became evidence to be used in the prosecution, and it was the duty of officers not only to seize the automobile but to preserve it as evidence, and a search of the vehicle even though not incident to the arrest, was reasonable. Dorsey v. State, 243 So. 2d 550, 1971 Miss. LEXIS 1514 (Miss. 1971).

Where defendant’s automobile was impounded upon his arrest for driving his automobile without a license tag, it was proper police practice for the arresting officers, being responsible for the contents of the car, to inventory the same in the presence of the defendant, and a substance alleged to be marijuana, found during such inventory, was not inadmissible in a subsequent prosecution as the product of an illegal search and seizure. Jackson v. State, 243 So. 2d 396, 1970 Miss. LEXIS 1397 (Miss. 1970).

Where the defendant was arrested in his automobile by city police outside the city limits, on a misdemeanor charge of switching automobile tags, and later, while defendant was incarcerated, the police conducted searches of the defendant’s automobile without having obtained a search warrant, the searches were unlawful, and evidence seized in such searches was inadmissible in a prosecution of the defendant on a charge of felonious possession of narcotic drugs. Mellen v. Mellen, 230 So. 2d 209, 1970 Miss. LEXIS 1540 (Miss. 1970).

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).

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).

An officer who boarded a truck without probable cause to believe that the law was being violated may not testify as to the illegal contents of the truck or the reckless manner in which it was driven. Barnes v. State, 249 Miss. 482, 162 So. 2d 865, 1964 Miss. LEXIS 409 (Miss. 1964).

A pistol seen under a leg of a motorist and removed by a patrolman who had halted the car to check the driver’s license is not obtained by an unlawful search and seizure so as to be inadmissible in a prosecution for carrying a concealed weapon. Morgan v. Heidelberg, 246 Miss. 481, 150 So. 2d 512, 1963 Miss. LEXIS 468 (Miss. 1963).

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).

Where the sheriff, who was without a search warrant, after investigating the scene of the theft, together with the owner of the stolen property went upon the defendant’s premises and, without consent of the defendant or his wife, searched the defendant’s premises and found the stolen property, the testimony of the sheriff and the property owner was incompetent as to anything found upon the defendant’s premises. Holder v. State, 230 Miss. 792, 93 So. 2d 841, 1957 Miss. LEXIS 423 (Miss. 1957).

Where sheriff who had lawfully arrested accused at his home and on the following day without search warrant, while accused in jail, found some empty shells, it was error to admit in homicide prosecution the testimony of sheriff concerning the empty shells and also to admit the shells in evidence. Martin v. State, 217 Miss. 506, 64 So. 2d 629, 1953 Miss. LEXIS 459 (Miss. 1953).

Where a warrant was issued to search certain rural store premises and officers while searching premises noticed man other than owner leaving with a suitcase, and seized the suitcase in possession of the accused, who was not committing any misdemeanor at the time the chase was commenced, the search and seizure was not authorized and following the federal rule evidence obtained thereby was inadmissible in prosecution for unlawful possession of intoxicating liquors. Jones v. State, 216 Miss. 263, 62 So. 2d 334, 1953 Miss. LEXIS 632 (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 this 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).

Where a warrant entitled the officer to search outhouse of owner and a defendant lived in the block house and ran a cafe on the land of the owner, also paid taxes and this house was between 100 and 200 yards away from house in which owner resided and operated the store, the house used by the defendant was not an outhouse, and the search of the premises, where whisky was found was illegal and the evidence was inadmissible. Thompson v. State, 213 Miss. 325, 56 So. 2d 808, 1952 Miss. LEXIS 369 (Miss. 1952).

Acts of officer, who had no warrant, in commanding a girl to set a jug down, and in reaching into her room and removing the jug, constituted an unlawful invasion of her place of abode and the evidence thus obtained could not be used legally against the girl on her trial of a charge of possessing intoxicating liquor since the officer did not know that it was whisky until after he opened the glass jug at the police station. Davis v. Columbus, 212 Miss. 181, 54 So. 2d 275, 1951 Miss. LEXIS 440 (Miss. 1951).

Where officer had no knowledge or information of any kind that a hardware store was burglarized and he proceeded to search the defendant, the evidence obtained by the officer under such circumstances was inadmissible on the trial of the burglary charge. Acuna v. State, 54 So. 2d 256 (Miss. 1951).

Testimony based upon knowledge acquired in searching defendant’s premises without a search warrant, in violation of the constitution, was inadmissible in the trial of the defendant whose premises had been unlawfully searched. Acuna v. State, 54 So. 2d 256 (Miss. 1951).

A sheriff entering a private backyard without a warrant and arresting owner for possession of intoxicating liquors was a trespasser making an unlawful arrest and no evidence there obtained was competent. Hartfield v. State, 209 Miss. 787, 48 So. 2d 507, 1950 Miss. LEXIS 443 (Miss. 1950).

Where sheriff hid himself near spot which he believed was being used to keep whisky but without suspecting that defendant rather than someone else would appear, and shortly thereafter defendant appeared with something in his hand and sheriff, after arresting him, discovered whisky in the bottle, arrest was unlawful and evidence inadmissible. Harrison v. State, 44 So. 2d 403 (Miss. 1950).

Conviction of unlawful possession of intoxicating liquor cannot be sustained when proof of fact arises out of evidence obtained in violation of defendant’s constitutional rights to be secure in person, house and possession from unreasonable search and seizure. Kelly v. State, 43 So. 2d 383 (Miss. 1949).

Taking paper bag containing liquor from defendant’s son about to leave premises being searched under proper warrant did not constitute an unlawful search of his person, making evidence obtained thereby inadmissible. West v. State, 42 So. 2d 751 (Miss. 1949).

Evidence procured under search warrant illegal because no return day was named therein is inadmissible in prosecution for violation of liquor laws. Buxton v. State, 205 Miss. 692, 39 So. 2d 310, 1949 Miss. LEXIS 460 (Miss. 1949).

Evidence obtained as result of illegal arrest and search of person is not admissible in prosecution for unlawful possession of intoxicating liquor. Haney v. State, 43 So. 2d 383 (Miss. 1949); Kelly v. State, 43 So. 2d 383 (Miss. 1949).

Evidence obtained by second search, under original search warrant, is inadmissible against defendant when second search is made after original search had been completed and the evidence obtained, and after defendant has been arrested, pleaded guilty and paid fine. Riley v. State, 204 Miss. 562, 37 So. 2d 768, 1948 Miss. LEXIS 389 (Miss. 1948).

Admission in evidence of incriminating articles connected with the crime as its fruits was not error, when the arrest is a lawful one, examination of the articles by the arresting officer is an incident to the arrest and no search is necessary. 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).

Where highway patrolman pursued motorist to check his driver’s license, stopped latter’s automobile, and thereafter searched it without a warrant and without reason to believe that motorist had violated any laws, and motorist had committed no misdemeanor in the patrolman’s presence, evidence that patrolman found whiskey in the automobile was illegally obtained and therefore inadmissible in a prosecution for unlawful possession of intoxicating liquor. Gause v. State, 203 Miss. 377, 34 So. 2d 729, 1948 Miss. LEXIS 282 (Miss. 1948).

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).

Evidence in prosecution for unlawful possession of whisky, that sheriff found on defendant’s person a key which fitted door to room wherein the whisky was found, was inadmissible, where the arrest and search of the defendant was illegal because the sheriff had no warrant therefor. Lynch v. Lynch, 198 Miss. 479, 23 So. 2d 401, 23 So. 2d 569, 1945 Miss. LEXIS 218 (Miss. 1945).

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).

Sheriff’s search of defendant’s premises was not unreasonable and he could have arrested the defendant without a warrant had he been at home, and his testimony in homicide prosecution as to what he found at the scene of the crime on defendant’s premises without a search warrant was properly admitted, where deceased’s body was found by the roadside and the sheriff followed trail from body to the home of defendant where he discovered that the yard had recently been thoroughly cleaned, blood near the front steps covered with ashes, a smoldering fire in the back yard wherein many things, including clothes, had been burned, and blood-stained blocks of wood hidden in a hollow tree, since the sheriff had probable cause to believe that a felony had been committed. Stogner v. Crystal Springs Baptist Church, 22 So. 2d 368 (Miss. 1945).

Where peace officer, suspecting illegal sale of beer in the back room of a restaurant, upon being refused admittance thereto, took up his position on the back porch, not for the purpose of making an arrest, but for the purpose of ascertaining whether a misdemeanor would be committed in his presence, such officer was a trespasser and information as to the illegal sale of beer gained there was illegally obtained and was inadmissible in evidence. Hattiesburg Coca Cola Bottling Co. v. Cawley, 2 So. 2d 143 (Miss. 1941).

Evidence of Federal officers who arrested defendant accused of unlawful possession of distillery held not inadmissible on ground that officers had no search warrant, since it was not shown that still was upon premises owned by defendant or that he had interest in such premises, and constitutional prohibition against searches and seizures applied to State and not to Federal officers. McLemore v. State, 178 Miss. 525, 172 So. 139, 1937 Miss. LEXIS 176 (Miss. 1937).

In burglary prosecution, evidence obtained by search without search warrant by private individuals held admissible, since constitutional provision against search and seizure without warrant is applicable only to governmental agencies. Colburn v. State, 175 Miss. 704, 166 So. 920, 1936 Miss. LEXIS 45 (Miss. 1936).

Constitution prohibiting unlawful searches and seizures is inapplicable to unlawful or unauthorized acts of trespass of private citizens as to competency of their evidence. Davis v. State, 175 Miss. 324, 166 So. 761, 1936 Miss. LEXIS 40 (Miss. 1936).

Where private citizen pursued defendant who had picked up suitcase from among weeds and, after defendant had escaped, notified town marshal that defendant was thought to have had whisky, evidence that suitcase permanently abandoned by defendant in tall grass contained whisky held admissible, notwithstanding absence of search warrant. Davis v. State, 175 Miss. 324, 166 So. 761, 1936 Miss. LEXIS 40 (Miss. 1936).

Broadly speaking, Federal officers, being entitled to act in States, are also “State officers” and cannot be deemed private individuals in making search violating State Constitution, and hence evidence obtained by such search is inadmissible in State courts. Little v. State, 171 Miss. 818, 159 So. 103, 1935 Miss. LEXIS 26 (Miss. 1935).

Obtaining evidence unlawfully by search or arrest by officer without authority of law is compelling defendant to testify against himself. Fulton v. Philadelphia, 168 Miss. 30, 148 So. 346, 1933 Miss. LEXIS 161 (Miss. 1933).

Evidence of intoxicating liquor procured when sheriff dipped handkerchief in liquor on ground which came from bottles broken by defendant after running away from marshal ordering defendant to halt, without seeing him with any liquor, held illegally obtained, and was inadmissible. Fulton v. Philadelphia, 168 Miss. 30, 148 So. 346, 1933 Miss. LEXIS 161 (Miss. 1933).

Persons not owners of premises searched could not complain of evidence obtained against them by illegal search. Polk v. State, 167 Miss. 506, 142 So. 480, 1932 Miss. LEXIS 197 (Miss. 1932).

Evidence obtained through search by private individual of effects of accused’s person held not unlawful, so as to render evidence obtained inadmissible. Cutrer v. State, 161 Miss. 710, 138 So. 343, 1931 Miss. LEXIS 310 (Miss. 1931).

Officer discovering liquor law violation by overhearing conversation while secreted on public road right of way held not “trespasser,” and evidence obtained was admissible. Goode v. State, 158 Miss. 616, 131 So. 106, 1930 Miss. LEXIS 103 (Miss. 1930).

Search of premises leased by defendant and not described in warrant held unlawful, and evidence obtained not admissible; “possession” defined. Planters' Lumber Co. v. Griffin Chapel M. E. Church, 157 Miss. 714, 124 So. 479, 1929 Miss. LEXIS 368 (Miss. 1929).

An officer cannot insert in the affidavit and warrant after the search is made the name of the person searched, and evidence thus obtained is inadmissible. Metropolitan Life Ins. Co. v. McSwain, 149 Miss. 455, 115 So. 555, 1928 Miss. LEXIS 41 (Miss. 1928).

The question of competency of evidence on the ground that it was obtained by illegal search and seizure of an automobile and the question of the sufficiency of evidence to constitute probable cause must be objected to when offered, and is a matter for the trial court, and not the officer to determine, and if not objected to the incompetency thereof will not be considered. Jordan v. State, 111 So. 860 (Miss. 1927).

Evidence obtained by search, where affidavit insufficiently described the place as the estate of the deceased person was inadmissible. Parkinson v. State, 145 Miss. 237, 110 So. 513, 1926 Miss. LEXIS 21 (Miss. 1926).

The admission of incompetent evidence obtained from an unlawful search where defendant made no specific objections nor motion to exclude, but obtained instruction eliminating testimony from jury’s consideration, is not reversible error. Bailey v. State, 143 Miss. 210, 108 So. 497, 1926 Miss. LEXIS 257 (Miss. 1926).

It must appear that property searched without a search warrant was owned by, or in possession of, the defendant, before evidence thereof thus obtained is inadmissible. Lovern v. State, 140 Miss. 635, 105 So. 759, 1925 Miss. LEXIS 299 (Miss. 1925).

Evidence procured unlawfully by an officer is inadmissible in evidence. Tucker v. State, 128 Miss. 211, 90 So. 845, 1922 Miss. LEXIS 108 (Miss. 1922); Williams v. State, 129 Miss. 469, 92 So. 584, 1922 Miss. LEXIS 64 (Miss. 1922); Butler v. State, 129 Miss. 778, 93 So. 3, 1922 Miss. LEXIS 88 (Miss. 1922); State v. Patterson, 130 Miss. 680, 95 So. 96, 1922 Miss. LEXIS 260 (Miss. 1922); Strangi v. State, 134 Miss. 31, 98 So. 340, 1923 Miss. LEXIS 235 (Miss. 1923); Spears v. State, 99 So. 361 (Miss. 1924); Matthews v. State, 134 Miss. 807, 100 So. 18, 1924 Miss. LEXIS 327 (Miss. 1924); Morton v. State, 136 Miss. 284, 101 So. 379, 1924 Miss. LEXIS 129 (Miss. 1924); Deaton v. State, 137 Miss. 164, 102 So. 175, 1924 Miss. LEXIS 213 (Miss. 1924); Borders v. State, 138 Miss. 788, 104 So. 145, 1925 Miss. LEXIS 99 (Miss. 1925); Orick v. State, 140 Miss. 184, 105 So. 465, 1925 Miss. LEXIS 250 (Miss. 1925); Harrell v. State, 140 Miss. 737, 106 So. 268, 1925 Miss. LEXIS 309 (Miss. 1925).

25. – – Admissions of defendant, warrantless searches and seizures.

Where an officer was responding to a dispatch regarding a bank robbery, he saw defendant crouched behind cars outside a market; the officer had reasonable suspicion to believe that defendant was a shoplifter and acted reasonably in stopping to investigate, and defendant was not entitled to suppress the statements he made when the officer stopped him because the stop was not illegal. Wilson v. State, 935 So. 2d 945, 2006 Miss. LEXIS 303 (Miss. 2006), cert. denied, 549 U.S. 1348, 127 S. Ct. 2047, 167 L. Ed. 2d 780, 2007 U.S. LEXIS 4088 (U.S. 2007).

Where a person states to the officer before arrest or search that certain kegs in automobile in the presence of the officer contain whisky, he may be arrested without a warrant and the whisky seized without a warrant. Williamson v. State, 140 Miss. 841, 105 So. 479, 1925 Miss. LEXIS 314 (Miss. 1925).

26. – – Firefighters, warrantless searches and seizures.

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).

27. – – Inspections, warrantless searches and seizures.

Where a county sought to enter landowners’ property in order to determine whether they were in violation of the county flood plain ordinance – and claimed that it was conducting a criminal investigation on the property – the county was required to obtain a search warrant supported by probable cause because absent consent or some recognized exception or exigency for which a warrant was not required, warrantless entries were illegal. Blakeney v. Warren County, 973 So. 2d 1037, 2008 Miss. App. LEXIS 63 (Miss. Ct. App. 2008).

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 prohibitions against unreasonable searches and seizures. Grillis v. State, 196 Miss. 576, 17 So. 2d 525, 1944 Miss. LEXIS 237 (Miss. 1944).

28. – – Abandoned property, warrantless searches and seizures.

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, — So.3d —, 2018 Miss. LEXIS 54 (Miss. Feb. 1, 2018).

Fourth Amendment does not prohibit warrantless search and seizure of garbage which has been left for collection on curb outside of home, and thus rights of accused narcotics traffickers were not violated where police investigators obtained bagged garbage left by accused on curb from garbage collector who picked them up at fixed collection time. California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d 30, 1988 U.S. LEXIS 2279 (U.S. 1988).

In a burglary prosecution, where a police officer testified that he observed the defendant throw or drop three bottles at his feet, even though the officer did not have 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).

29. – – Arrest, warrantless searches and seizures.

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, — So.3d —, 2018 Miss. LEXIS 54 (Miss. Feb. 1, 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, — So.3d —, 2018 Miss. LEXIS 54 (Miss. Feb. 1, 2018).

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, — So.3d —, 2018 Miss. LEXIS 54 (Miss. Feb. 1, 2018).

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 the could be used toassault 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, — So.3d —, 2018 Miss. LEXIS 54 (Miss. Feb. 1, 2018).

Defendant was not illegally arrested because while he was detained, police officers gained consent to search his girlfriend’s apartment and found the drugs defendant was trying to destroy, along with the other incriminating items in the apartment; at that point, the officers probable cause to arrest defendant, and based on that arrest, the officers were permitted to search defendant’s pockets. McCoy v. State, 160 So.3d 705, 2014 Miss. App. LEXIS 594 (Miss. Ct. App. 2014), cert. dismissed, 160 So.3d 704, 2015 Miss. LEXIS 362 (Miss. 2015).

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).

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 incident 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).

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).

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).

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).

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).

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).

Warrantless arrest of murder suspect is based upon probable cause where suspect admits having passed marked $2 bill which was stolen during murder-robbery and suspect matches description of person who passed bill; even if arrest were illegal, statement given by suspect following arrest is admissible at trial where intervening circumstances and nonexistence of flagrant violation by police indicate that statement is voluntarily given. Swanier v. State, 473 So. 2d 180, 1985 Miss. LEXIS 2155 (Miss. 1985).

In defendant’s trial for murder of a police officer which occurred during a “shoot-out” at a dwelling house, the warrantless search of the house immediately following defendant’s arrest was a lawful search instant to an arrest and the items therein seized were admissible into evidence; where the search incident to the arrest was delayed by the removal of bomb devices discovered during the initial search, the final portion of the search after reentry was merely a continuation of the original search and was not unreasonable, and the items therein seized were also admissible into evidence. 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).

The arrest, in the defendant’s apartment, of a person whom the police incorrectly believed to be the defendant, was made in good faith where the police had probable cause to arrest the defendant and where the person arrested fit the description which they had of the defendant, and a search of the apartment incident to the arrest and the seizure of articles subsequently admitted as evidence against the defendant in a robbery prosecution were valid. Hill v. California, 401 U.S. 797, 91 S. Ct. 1106, 28 L. Ed. 2d 484, 1971 U.S. LEXIS 59 (U.S. 1971).

Where arresting officers were informed over the police radio that someone described by an informer had attempted to make a sale of LSD, and the automobile in which such person was riding was described and the description met the description of an automobile in which defendants were riding when arrested, the information given the officers by radio constituted sufficient probable cause to justify an arrest, and the warrantless search of the automobile was not illegal. Hamburg v. State, 248 So. 2d 430, 1971 Miss. LEXIS 1466 (Miss. 1971).

Empty cartridge hulls, taken from the cab of the defendant’s truck after a search without a warrant conducted after the defendant’s arrest in a nearby cafe, were products of an illegal search and seizure, and objection to their admission should have been sustained. Kent v. State, 241 So. 2d 657, 1970 Miss. LEXIS 1353 (Miss. 1970).

A rifle taken without a warrant from the cab of the defendant’s truck was not procured by an unlawful search and seizure, where the defendant had been validly arrested, the rifle was observable through the truck windows, and the sheriff testified that he knew from observation the caliber and type of the rifle and who made it. Kent v. State, 241 So. 2d 657, 1970 Miss. LEXIS 1353 (Miss. 1970).

Where police officers arrested a defendant for driving while under the influence of intoxicants, and the arrest took place in a county where intoxicants were outlawed and considered contraband, the officers’ search of the interior of the defendant’s automobile, including a briefcase which lay upon its rear seat and in which drugs were concealed, was not unreasonable. McMillian v. Patton, 235 So. 2d 704, 1970 Miss. LEXIS 1461 (Miss. 1970).

Where a defendant is arrested for the possession of intoxicating liquors transported by him, following a search and seizure without a warrant, his counsel is entitled to know who gave the information that he would be transporting the liquors in a particular automobile at a particular place and time, together with a full disclosure of all of the facts upon which the officer acted, in order that the issue may be presented of whether there was probable cause. Terry v. State, 252 Miss. 479, 173 So. 2d 889, 1965 Miss. LEXIS 1123 (Miss. 1965), overruled, Strode v. State, 231 So. 2d 779, 1970 Miss. LEXIS 1605 (Miss. 1970).

Peace officers had probable cause to arrest defendants, and evidence obtained as a result of search of their persons subsequent to the arrest was admissible in evidence, where one of the officers, to whom the defendants had attempted to sell a new record player at a cheap price, had observed burglary tools in an automobile operated by the defendants. Corn v. State, 250 Miss. 157, 164 So. 2d 777, 1964 Miss. LEXIS 452 (Miss. 1964).

Sheriff entering one’s private backyard without a warrant and arresting owner for possession of intoxicating liquor was a trespasser making unlawful arrest. Hartfield v. State, 209 Miss. 787, 48 So. 2d 507, 1950 Miss. LEXIS 443 (Miss. 1950).

Where the sheriff and deputy sheriff invaded the premises for the purpose of making an unlawful arrest of person other than the owner, without a search warrant, this was a violation of this section. Pettis v. State, 209 Miss. 726, 48 So. 2d 355, 1950 Miss. LEXIS 433 (Miss. 1950).

Where the sheriff and deputy sheriff were unlawful in arresting a person without a warrant for an alleged misdemeanor not committed in their presence and also were unlawful in invading the home of the owner, the acts of the owner in resisting entry were not unlawful. Pettis v. State, 209 Miss. 726, 48 So. 2d 355, 1950 Miss. LEXIS 433 (Miss. 1950).

The action of a sheriff who after spying a cow and truck on highway one-quarter of a mile ahead, overtook the truck, asked defendant occupants if they had a bill of sale to cattle therein, and upon receiving negative answer and unsatisfactory explanation as to the identification of alleged seller, and the presence of cattle, took the defendants into custody, did not constitute an unlawful search and seizure. Quick v. Holcomb, 47 So. 2d 852 (Miss. 1950).

Finding of liquor in purse on rear seat of car by officer making search of automobile under search warrant does not authorize officer to arrest husband of owner of purse for unlawful possession of liquor without warrant, and arrest cannot be vindicated by finding, after arrest, of liquor in possession of defendant husband. Kelly v. State, 43 So. 2d 383 (Miss. 1949).

Finding of liquor in purse on rear seat of car, belonging to woman in car, by officer making search of automobile under search warrant does not authorize officer to arrest without warrant former passenger who has left car and entered his own place of business and subsequent search of passenger’s person is unlawful. Kelly v. State, 43 So. 2d 383 (Miss. 1949).

Officer was authorized to arrest defendant for unlawful possession of liquor without warrant only if misdemeanor was being knowingly committed in his presence. Kelly v. State, 43 So. 2d 383 (Miss. 1949).

City marshal held unauthorized to arrest defendant not seen with any liquor when he was called to halt. Fulton v. Philadelphia, 168 Miss. 30, 148 So. 346, 1933 Miss. LEXIS 161 (Miss. 1933).

Officer may make arrest for misdemeanor committed in his presence; he may arrest felon when having probable cause to believe person arrested committed crime. Bird v. State, 154 Miss. 493, 122 So. 539, 1929 Miss. LEXIS 154 (Miss. 1929).

Officer may, as incident to arrest, search person for arms and evidence tending to establish commission of crime; admission of hacksaw and other articles taken from defendant at time of arrest for burglary held not erroneous. Bird v. State, 154 Miss. 493, 122 So. 539, 1929 Miss. LEXIS 154 (Miss. 1929).

Officers held to have reasonable ground to believe felony was about to be committed, authorizing arrest without warrant and seizure and use of evidence. Mapp v. State, 152 Miss. 298, 120 So. 170, 1929 Miss. LEXIS 203 (Miss. 1929).

Under this section an officer cannot arrest a person without a warrant for a mere misdemeanor not committed in the officer’s presence. Orick v. State, 140 Miss. 184, 105 So. 465, 1925 Miss. LEXIS 250 (Miss. 1925).

Notwithstanding the provision of this section an officer may enter any premises wherein he has reason to believe and does believe there is concealed a criminal for whose arrest he holds a warrant, or whom he has authority to arrest without a warrant, and a search by an officer in a reasonably necessary manner merely to arrest a person does not render such officer liable to the owner although the officer had no search warrant. Monette v. Toney, 119 Miss. 846, 81 So. 593, 1919 Miss. LEXIS 183 (Miss. 1919).

30. – – Motor vehicle searches, warrantless searches and seizures.

Defendant was not entitled to suppress the cocaine found in an automobile because defendant was a mere passenger in the automobile and, as such, lacked standing to challenge the search of the automobile as defendant had no expectation of privacy. Holloway v. State, 282 So.3d 537, 2019 Miss. App. LEXIS 301 (Miss. Ct. App. 2019).

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).

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).

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).

Defendants’ convictions for possession of more than five kilograms of marijuana were appropriate because, under Miss. Code Ann. §63-3-1213, defendants’ vehicle was seen driving in a careless or imprudent manner and the deputy had the authority to stop them. When defendants acted nervous, the deputy’s retrieval of a drug-detecting dog was appropriate and the drug-detecting dog’s positive alerts created probable cause for the deputy to search the trunk of the rental car. Shelton v. State, 45 So.3d 1203, 2010 Miss. App. LEXIS 141 (Miss. Ct. App.), cert. denied, 49 So.3d 636, 2010 Miss. LEXIS 548 (Miss. 2010), cert. denied, 2010 Miss. LEXIS 553 (Miss. Oct. 21, 2010).

Where several witnesses testified that the shooter left the murder scene in defendant’s car, which the police found at defendant’s home shortly after the murder, probable cause existed for a valid warrantless search of defendant’s automobile. Jordan v. State, 995 So. 2d 94, 2008 Miss. LEXIS 489 (Miss. 2008).

Where an officer heard loud music from defendant’s vehicle and saw him cross over the center line, he had probable cause to stop the vehicle; the officer’s inability to cite the noise ordinance did not affect the probable cause finding. Loveless v. City of Booneville, 972 So. 2d 723, 2007 Miss. App. LEXIS 400 (Miss. Ct. App. 2007), cert. dismissed, 973 So. 2d 244, 2008 Miss. LEXIS 2 (Miss. 2008).

In a statutory rape case, defendant was unable to challenge the manner in which police obtained a pair of child’s panties from his vehicle since the issue was not raised below. Roles v. State, 952 So. 2d 1043, 2007 Miss. App. LEXIS 180 (Miss. Ct. App. 2007).

Defendant’s seizure at a roadblock was constitutional because its primary purpose was to check for driver’s licenses and insurance cards and because the officers were consistently and indiscriminately stopping every vehicle coming through the roadblock. McLendon v. State, 945 So. 2d 372, 2006 Miss. LEXIS 548 (Miss. 2006), cert. denied, 551 U.S. 1145, 127 S. Ct. 3008, 168 L. Ed. 2d 727, 2007 U.S. LEXIS 8338 (U.S. 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).

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).

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).

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).

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).

The warrantless search of a boat pursuant to §49-1-43 was proper under the vehicle exception to the warrant requirement, notwithstanding a three hour delay between the time an officer saw illegal fishing on the boat and the actual search. One 1992 Toyota 4-Runner v. State ex rel. Mississippi Dep't of Wildlife Fisheries & Parks, 721 So. 2d 609, 1998 Miss. LEXIS 398 (Miss. 1998).

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).

The search of an automobile without a warrant, extending to any place in the vehicle in which the items sought might reasonably be found, is permissible if there is probable cause, under a standard which must be at least as stringent as that required for the obtaining of a search warrant, to believe that the automobile is mobile and contains contraband or other items which offend against the law; the probable cause required in such instance, unlike that required for a warrantless search of a vehicle incident to arrest, is concerned not necessarily with the guilt of an individual, but with the reasonable belief that there is evidence in the particular automobile. Wolf v. State, 260 So. 2d 425, 1972 Miss. LEXIS 1556 (Miss.), cert. denied, 409 U.S. 1042, 93 S. Ct. 535, 34 L. Ed. 2d 492, 1972 U.S. LEXIS 437 (U.S. 1972).

In a murder prosecution, a search of the defendant’s automobile, which had been identified by witnesses as the automobile in which the victim had been taken away by the defendant after the defendant’s arrest, was proper as a search for the instrument or implement by which the crime was committed. Taylor v. State, 254 So. 2d 728, 1971 Miss. LEXIS 1264 (Miss. 1971).

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).

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).

A search of a woman’s handbag found in the automobile of one lawfully arrested is not unlawful where the officers did not know at the time that it belonged to her. Johnson v. State, 246 Miss. 182, 145 So. 2d 156, 1962 Miss. LEXIS 521 (Miss. 1962), cert. denied, 372 U.S. 702, 83 S. Ct. 1018, 10 L. Ed. 2d 125, 1963 U.S. LEXIS 1800 (U.S. 1963).

The search of an arrested person’s automobile is not unreasonable because not made at the place of arrest, where, under the circumstances, carrying him to a place of detention was a reasonable precaution, and the search was made immediately afterward. Fuqua v. State, 246 Miss. 191, 145 So. 2d 152, 1962 Miss. LEXIS 522 (Miss. 1962), cert. denied, 372 U.S. 709, 83 S. Ct. 1018, 10 L. Ed. 2d 125, 1963 U.S. LEXIS 1814 (U.S. 1963).

A search of an automobile following an illegal arrest of the driver is not legal. Jennings v. Jennings, 128 So. 2d 857 (Miss. 1961).

Where a deputy sheriff having no probable cause to believe that car was being used in transportation of liquor, and without a search warrant, searched the car, the car owner was entitled to damages. State use of Brooks v. Wynn, 213 Miss. 306, 56 So. 2d 824, 1952 Miss. LEXIS 365 (Miss. 1952).

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).

The fact that officers arresting one for driving while intoxicated had no search warrant is immaterial where prosecution is not based on any evidence discovered by reason of the search of the automobile but on what they had observed prior thereto in regard to his condition while driving. Ball v. State, 203 Miss. 521, 36 So. 2d 159, 1948 Miss. LEXIS 300 (Miss. 1948).

Passenger in truck being driven by its owner in compliance with contract of sale of cow and delivery thereof to defendant’s home, could not object to the search of the truck cab by deputy sheriff without a search warrant, or to the admission of evidence secured thereby in prosecution for unlawful possession of intoxicating liquor. Smith v. State, 198 Miss. 788, 24 So. 2d 85, 1945 Miss. LEXIS 248 (Miss. 1945).

Refusal to grant instruction in murder prosecution against rum runners, one of whom shot and killed a law enforcement officer who was attempting to stop their automobile, that defendant could not be guilty of more than manslaughter, predicated on the contention that the law enforcement officers were attempting to make an arrest or a search without a warrant and without probable cause because the information given the officer concerning the illegal transportation of whisky did not adequately describe the automobile in which the whisky was being transported, was not erroneous where the informer, in giving the information to the officers, told him he would be in the car, which was a sufficient description of the instrumentality used. Franklin v. State, 189 Miss. 142, 196 So. 787, 1940 Miss. LEXIS 120 (Miss. 1940).

An officer undertaking to search an automobile without a warrant under § 2, c 244, Laws of 1924 is not the judge finally of probable cause or the sufficiency of information on which such officer acts, but the court is the final judge. McNutt v. State, 143 Miss. 347, 108 So. 721, 1926 Miss. LEXIS 271 (Miss. 1926), overruled, Strode v. State, 231 So. 2d 779, 1970 Miss. LEXIS 1605 (Miss. 1970).

31. – – Probable cause, warrantless searches and seizures.

Controlled substances and firearm seized during a traffic stop was properly admitted because a deputy had sufficient reason and probable cause to stop defendant’s car when he observed defendant violating the seat belt law; even prior to the deputy’s search of the vehicle, defendant had visibly committed a minimum of four misdemeanor offenses. Wallace v. State, — So.3d —, 2019 Miss. App. LEXIS 170 (Miss. Ct. App. Apr. 23, 2019), cert. denied, 279 So.3d 1086, 2019 Miss. LEXIS 419 (Miss. 2019), cert. denied, — So.3d —, 2019 Miss. LEXIS 449 (Miss. 2019).

Stop of defendant’s vehicle was not pretextual because the deputy knew the confidential informant and found that person reliable; the deputy testified that he followed defendant before turning on his blue lights and did not see any traffic violations during that span, but he realized that when he was driving by, the driver was not wearing his seatbelt, and that was sufficient for purposes of the original stop. Wallace v. State, — So.3d —, 2019 Miss. App. LEXIS 170 (Miss. Ct. App. Apr. 23, 2019), cert. denied, 279 So.3d 1086, 2019 Miss. LEXIS 419 (Miss. 2019), cert. denied, — So.3d —, 2019 Miss. LEXIS 449 (Miss. 2019).

Circuit court did not err in denying defendant’s motion to suppress because, at minimum, Mississippi Bureau of Narcotic agents were justified in their stop of at least the first individual observed acting suspiciously; use based upon the agents’ personal observation of suspicious activity, as well as their corroboration of details provided in an anonymous tip, they possessed specific, articulable facts constituting a reasonable suspicion that criminal activity was afoot. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

Probable cause for a search did not exist based on the officer’s testimony that he became suspicious because defendant acted nervous and looked at and held onto his right shoe. Reasonable suspicion is not established base on mere hunches or looking suspicious. i May v. State, 222 So.3d 1074, 2016 Miss. App. LEXIS 810 (Miss. Ct. App. 2016), cert. denied, 223 So.3d 785, 2017 Miss. LEXIS 309 (Miss. 2017).

Police officer possessed probable cause to search the trunk of a driver’s vehicle after his K9 alerted to the area because the officer made a valid traffic stop, and then he acted within his authority when he deployed his trained K9 for a free air sniff outside the vehicle. Bobo v. State ex rel. Pelahatchie Police Dep't (In re $137,325.00 in U.S. Currency), 204 So.3d 317, 2016 Miss. App. LEXIS 746 (Miss. Ct. App. 2016).

Officer had probable cause to stop defendant’s vehicle based on his observation of an improper turn and a missing headlight, notwithstanding the fact that the officer had received word from dispatch to be on the lookout for a vehicle matching that description. Scott v. City of Booneville, 962 So. 2d 698, 2007 Miss. App. LEXIS 185 (Miss. Ct. App.), cert. denied, 968 So. 2d 948, 2007 Miss. LEXIS 637 (Miss. 2007).

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).

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 the 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).

The police officers had probable cause to search defendant when the car in which he was a passenger was stopped after running a roadblock, the officers saw defendant trying to hide something in the car, demanded defendant reveal what he was hiding, and then observed defendant place the concealed substance in his mouth to hide it further. Roberson v. State, 754 So. 2d 542, 2000 Miss. App. LEXIS 1 (Miss. Ct. App. 2000).

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).

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 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).

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).

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).

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).

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).

Constitutional rights of defendant in prosecution for assault and battery with intent to kill were violated warranting reversal of conviction where proof of state failed to show any authority for seizure of defendant’s automobile, the search of his premises and seizure of his coat and pistol, the examination of the person of defendant for a bullet wound and a photograph thereof, the sheriff’s comparison of a tire on the automobile with the dim track which he had observed at the scene, and on cross-examination of defendant the state was permitted to ask questions showing guilt of another crime, notwithstanding that record failed to show any objections thereto or that a motion for new trial was made. Brooks v. State, 209 Miss. 150, 46 So. 2d 94, 1950 Miss. LEXIS 373 (Miss. 1950).

Search of persons and property forbidden by Constitution without warrant or probable cause is such only as constitutes a trespass. Goodman v. State, 158 Miss. 269, 130 So. 285, 1930 Miss. LEXIS 42 (Miss. 1930).

The court may pass on the question of probable cause without warrant. Brown v. State, 149 Miss. 219, 115 So. 436, 1928 Miss. LEXIS 37 (Miss. 1928).

31.5. – Reasonable suspicion – warrantless searches and seizures.

Controlled substances and firearm seized during a traffic stop was properly admitted because a tip received from a confidential informant was reliable and from a known source; there was then a “who,” a “what,” and a “where,” conjoined with a belief that at least a misdemeanor offense was being committed, and once the stop had been initiated, the stench of marijuana corroborated the informant’s information. Wallace v. State, — So.3d —, 2019 Miss. App. LEXIS 170 (Miss. Ct. App. Apr. 23, 2019), cert. denied, 279 So.3d 1086, 2019 Miss. LEXIS 419 (Miss. 2019), cert. denied, — So.3d —, 2019 Miss. LEXIS 449 (Miss. 2019).

Police had reasonable suspicion to stop defendant’s vehicle without a warrant because the officer stopped the vehicle based on information he received from a sergeant, the sergeant had seen two men exit the house and get into the blue vehicle, and the two men’s appearances fit the description of two of the suspects that an accomplice had previously provided to the police Johnson v. State, 242 So.3d 145, 2017 Miss. App. LEXIS 335 (Miss. Ct. App. 2017), cert. denied, 246 So.3d 69, 2018 Miss. LEXIS 190 (Miss. 2018).

32. – – Plain view doctrine, warrantless searches and seizures.

Basis of the totality of circumstances began with an anonymous tip that drug activity was occurring, and the officer responded and confirmed the anonymous source’s information and smelled marijuana when he approached the cars and determined that the smell was coming from defendant’s car. Defendant had admitted to having a gun on his person, so the officer, for his protection, asked defendant to get out of the car, and when defendant was out of the car, the officer found, in plain view, a bag commonly used in drug transactions with what appeared to be marijuana residue inside it; thus, defendant’s arrest was supported by probable cause, and the evidence seized pursuant to a search of his person incident to arrest was admissible. Kennedy v. State, 909 So. 2d 1128, 2005 Miss. App. LEXIS 33 (Miss. Ct. App. 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).

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).

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).

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).

There was no unlawful search where a deputy sheriff looked through the windows of a station wagon recently occupied by three persons subsequently charged with burglary to observe and consider marks and other indicia tending 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).

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).

An officer has the right to arrest without a warrant for the commission of a misdemeanor in his presence and a misdemeanor is being committed in the presence of an officer when he then and there acquires knowledge thereof through one of his senses. Harrison v. State, 44 So. 2d 403 (Miss. 1950).

Obtaining information by means of the eye, where no trespass is committed in aid thereof, does not constitute unlawful search. Bone v. State, 207 Miss. 868, 43 So. 2d 571, 1949 Miss. LEXIS 398 (Miss. 1949).

Testimony of officer describing car and its contents which officer saw on street on night of burglary near building burglarized and which he saw following afternoon in garage in another city where defendant had been placed in jail claiming that neither he nor car had left city on night of burglary is admissible in prosecution for burglary even though officer had no search warrant. Bone v. State, 207 Miss. 868, 43 So. 2d 571, 1949 Miss. LEXIS 398 (Miss. 1949).

Obtaining information by means of eye, where no trespass has been committed in aid thereof, does not constitute unlawful search. Goodman v. State, 158 Miss. 269, 130 So. 285, 1930 Miss. LEXIS 42 (Miss. 1930).

Observance of automobile occupants emptying jug of liquor did not constitute trespass, and therefore did not constitute unlawful search, rendering testimony showing what officers observed, admissible. Goodman v. State, 158 Miss. 269, 130 So. 285, 1930 Miss. LEXIS 42 (Miss. 1930).

33. – – Consent or waiver, warrantless searches and seizures.

While defendant voluntarily consented to the removal of his shoe, defendant would not have understood that he was consenting to the officer taking apart and searching the lighter that fell from his shoe, rather, the scope of defendant’s consent only extended to the contents of his shoe that were plainly viewable as incriminating or dangerous. May v. State, 222 So.3d 1074, 2016 Miss. App. LEXIS 810 (Miss. Ct. App. 2016), cert. denied, 223 So.3d 785, 2017 Miss. LEXIS 309 (Miss. 2017).

Trial court did not err in denying defendant’s motion to suppress, as the owner of the mobile home on which defendant resided consented to a search of the mobile home and the shed, which was within the home’s curtilage. Whitehead v. State, 187 So.3d 1091, 2016 Miss. App. LEXIS 182 (Miss. Ct. App. 2016).

Trial court did not abuse its discretion in denying defendant’s motion to suppress photographs found at his mother’s home because defendant did not offer any evidence that his mother did not consent to the search of the house where the incident occurred in his motion to suppress or in his argument at the hearing. Brown v. State, 119 So.3d 1079, 2013 Miss. App. LEXIS 131 (Miss. Ct. App. 2013).

In a prosecution for manslaughter by culpable negligence and driving under the influence, the trial court did not err when it denied defendant’s motion to suppress the results of a blood test because defendant consented to the blood draw. The arresting officer testified defendant consented, and a nurse testified that she would not have drawn the blood without defendant’s consent. Setzer v. State, 54 So.3d 226, 2011 Miss. LEXIS 102 (Miss. 2011).

Trial court did not err in failing to suppress evidence obtained through a warrantless search of defendant’s automobile where defendant consented to the search and never withdrew his consent. Pitchford v. State, 45 So.3d 216, 2010 Miss. LEXIS 328 (Miss. 2010), cert. denied, 563 U.S. 939, 131 S. Ct. 2098, 179 L. Ed. 2d 897, 2011 U.S. LEXIS 3058 (U.S. 2011).

Motion to suppress deoxyribonucleic acid evidence was denied because officers were not required to give defendant Miranda warnings since he was not detained under U.S. Const. Amend. IV and Miss. Const. Art. 3, § 23 before he consented to a blood draw; the officers went to defendant’s residence, asked him to submit to the testing, and defendant rode to the hospital in the front seat of one officer’s car. Moreover, defendant’s mild mental retardation did not give rise to a finding of per se involuntariness to give consent, and his cooperative nature was also considered. Robinson v. State, 2 So.3d 708, 2008 Miss. App. LEXIS 624 (Miss. Ct. App. 2008).

Despite defendant being seized when a second officer questioned him by having been placed in the back seat of a police car to be transported to a hospital for a blood test, defendant was not seized when he made a statement and consented to the blood test when he spoke with a first police officer during the first officer’s general investigation of an accident; defendant’s first consent remained valid as it was never revoked and thus it was not necessary that the second consent be valid. Turner v. State, 12 So.3d 1, 2008 Miss. App. LEXIS 586 (Miss. Ct. App. 2008), cert. denied, 14 So.3d 731, 2009 Miss. LEXIS 303 (Miss. 2009).

Trial court did not err in denying defendant’s motion to suppress because: (1) at the hearing on defendant’s motion to suppress, two sheriff’s deputies testified that defendant gave free and voluntary consent to search defendant’s home; (2) a signed and executed consent to search form was introduced into evidence at trial purporting that voluntary consent; and (3) defendant presented no evidence that defendant was impaired or suffered from diminished capacity when defendant gave the deputies consent to search defendant’s home. Evans v. State, 984 So. 2d 308, 2007 Miss. App. LEXIS 641 (Miss. Ct. App. 2007), cert. denied, 984 So. 2d 277, 2008 Miss. LEXIS 289 (Miss. 2008).

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).

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).

In a possession of precursor drugs with knowledge that the drugs would be used to manufacture a controlled substance case, after a drug store clerk informed the police that two suspects 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 officers investigatory stop of the driver’s car, in which defendant was a passenger, was entirely proper and the driver’s consent to search 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 and 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).

Defendant was barred from raising his argument that the police officer’s search of his pants pocket violated his right against illegal search and seizure on appeal where his guilty plea resulted in the waiver of his right to raise that constitutional issue. Smith v. State, 845 So. 2d 730, 2003 Miss. App. LEXIS 426 (Miss. Ct. App. 2003).

The fact the the defendant’s wife attached conditions to her consent to search and demanded 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 defendant’s premises and, therefore, her consent was properly found to be voluntary. Logan v. State, 773 So. 2d 338, 2000 Miss. LEXIS 267 (Miss. 2000).

When the issue is the voluntariness of a consent to search, there is no absolute requirement that the person receive a Miranda-like notification that the person can refuse the officer’s request, even though the Supreme Court has suggested that it will, using state constitutional concerns, apply a stricter test of voluntariness than the United States Supreme Court does under Fourth Amendment jurisprudence. Logan v. State, 773 So. 2d 338, 2000 Miss. LEXIS 267 (Miss. 2000).

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 premises, she declined to do so unless the officers agreed to remove a substantial number of the police cars parked at her residences, 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 of the defendant’s truck, which was made pursuant to his wife’s consent, was proper since (1) the defendant failed to meet his burden to show that his wife did not know of her right to refuse, (2) her written consent evidenced the fact that her consent was voluntary, and (3) evidence also established that she gave oral consent to the search. Gazaway v. State, 708 So. 2d 1385, 1998 Miss. App. LEXIS 115 (Miss. Ct. App. 1998).

Where, as part of routine drug interdiction effort, two uniformed police officers boarded bus during stopover and without articulable suspicion requested passenger’s consent to search his luggage, advising passenger that he had right to refuse consent, and passenger manifested consent, and search of luggage disclosed cocaine, encounter was not necessarily “seizure” for purposes of Fourth Amendment because if same encounter had taken place before passenger boarded bus it would not have risen to level of seizure; analysis of whether reasonable person in passenger’s position would feel “free to leave” is inapplicable because restriction of freedom of movement was result of factor independent of police conduct; appropriate inquiry in such situation is whether reasonable person would feel free to decline officers’ requests or otherwise terminate encounter. Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382, 115 L. Ed. 2d 389, 1991 U.S. LEXIS 3625 (U.S. 1991).

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).

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).

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 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).

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 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).

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).

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).

Where defendant advised the sheriff by telephone that she had shot her husband and the sheriff subsequently came to the murder scene to accompany the body to the hospital, a deputy sheriff’s return to the murder scene 25 minutes later was not an illegal search but rather was merely a continuation of the initial investigation permitted by defendant. Crum v. State, 349 So. 2d 1059, 1977 Miss. LEXIS 2201 (Miss. 1977).

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).

In a prosecution for possession of amphetamine tablets with intent to sell, where defendant’s companion voluntarily testified that the amphetamines had been given to her by the defendant, were in her possession at the time of the search, and that she had given them to a policeman, the defendant had no standing to object to the admission of the tablets. Simmons v. State, 301 So. 2d 565, 1974 Miss. LEXIS 1663 (Miss. 1974).

Where the defendants specifically denied having any interest in an automobile allegedly used by them on the date of the alleged shoplifting, they were without standing to object to a search of the automobile. Watkins v. State, 262 So. 2d 422, 1972 Miss. LEXIS 1318 (Miss. 1972), cert. denied, 410 U.S. 958, 93 S. Ct. 1416, 35 L. Ed. 2d 692, 1973 U.S. LEXIS 3272 (U.S. 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 that 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).

An officer cannot enter the home of one charged with crime after the defendant has been arrested and incarcerated in jail without his consent and without a valid search warrant. May v. State, 199 So. 2d 635, 1967 Miss. LEXIS 1308 (Miss. 1967).

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).

Waiver of its [this section’s] protection is not created by the defendant neither objecting nor consenting to the search. Adams v. State, 202 Miss. 68, 30 So. 2d 593, 1947 Miss. LEXIS 243 (Miss. 1947).

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).

This section is not violated where the home and premises of a defendant are searched by his consent. Faulk v. State, 127 Miss. 894, 90 So. 481, 1921 Miss. LEXIS 230 (Miss. 1921); Adams v. State, 202 Miss. 68, 30 So. 2d 593, 1947 Miss. LEXIS 243 (Miss. 1947).

34. – – Exigent circumstances, warrantless searches and seizures.

Trial court did not err in denying defendant’s motion to suppress evidence found in his girlfriend’s apartment because the search was only conducted after the officers obtained written consent from the girlfriend, who was the apartment’s leaseholder. McCoy v. State, 160 So.3d 705, 2014 Miss. App. LEXIS 594 (Miss. Ct. App. 2014), cert. dismissed, 160 So.3d 704, 2015 Miss. LEXIS 362 (Miss. 2015).

School officials’ warrantless search of a high school student’s locker and their seizure of two handguns therefrom did not violate § 23 of the Mississippi Constitution, where another student had told the assistant principal that the first student had offered to sell him two handguns and had told him that he had the guns at school. The exigency of the circumstances provided an exception to the warrant requirement of § 23, even though there was no suggestion that the student was carrying the guns on his person, since high school students change classes every hour and normally have access to their lockers between classes, and there were more than 900 teenage boys and girls at the school. Additionally, a responsible school official under the circumstances would have regarded the information obtained from the second student to be sufficient to take action, since high school students fall into a different and generally less suspect class than other informants; absent information that the particular student informant might be untrustworthy, school officials may ordinarily accept at face value the information he or she supplies. S.C. v. State, 583 So. 2d 188, 1991 Miss. LEXIS 387 (Miss. 1991).

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).

The search of defendant and his possessions at an airport violated both the Fourth Amendment to the U.S. 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).

Even if there is probable cause for the seizure or search of an automobile, such search without a valid warrant is unconstitutional unless there are exigent circumstances making it impracticable to obtain a warrant; such circumstances were not present where (1) the police had known for some time of the probable role of the automobile in a murder, (2) the accused was aware that he was a suspect in the murder, but had been co-operative throughout the investigation, and there was no indication that he meant to flee, (3) he had already had ample opportunity to destroy any incriminating evidence, (4) the automobile was regularly parked in the driveway of his home, and was not being used for any illegal purpose when it was seized, (5) the objects searched for were neither stolen nor contraband nor dangerous, (6) there was no way in which the accused could have gained access to the automobile after the police arrived on his property. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564, 1971 U.S. LEXIS 25 (U.S. 1971).

35. – – Damages, warrantless searches and seizures.

Officers of live-stock sanitary board seizing cattle without legal process and charging owner with cost of dipping them are liable to owner for damages. D'Aquilla v. Anderson, 153 Miss. 549, 120 So. 434, 1929 Miss. LEXIS 9 (Miss. 1929).

A case where an officer held liable for damages for an unauthorized search. United States Fidelity & Guaranty Co. v. State, 121 Miss. 369, 83 So. 610, 1919 Miss. LEXIS 171 (Miss. 1919).

36. – – Unreasonable searches and seizures, warrantless searches and seizures.

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).

Defendant, who was walking his pit bulls on leashes, was unlawfully stopped by a police sergeant because the sergeant had no reasonable suspicion defendant was engaged or had been engaged in criminal conduct; thus, it was manifest error for the trial court to refuse to suppress evidence of defendant’s actions and statements made after the unlawful stop. Harrell v. State, 109 So.3d 604, 2013 Miss. App. LEXIS 77 (Miss. Ct. App. 2013).

Trial court erred in denying defendant’s motion to suppress cocaine evidence in defendant’s trial for possession of cocaine with intent to sell because the police lacked probable cause or reasonable suspicion to stop defendant’s vehicle where there was no evidence of any traffic violation and the officer’s suspicion that defendant was tired or impaired was not sufficient to constitute a reasonable basis for the traffic stop. Trejo v. State, 76 So.3d 702, 2010 Miss. App. LEXIS 283 (Miss. Ct. App. 2010), aff'd, 76 So.3d 684, 2011 Miss. LEXIS 602 (Miss. 2011).

Motion to suppress cocaine thrown under a car at a gas station should have been granted under USCS Const. Amend. 4 and Miss. Const. Art. 3, § 23 because there was no reasonable suspicion to support an investigative stop, and other than a police officer’s testimony, there was nothing to show an unprovoked flight due to defendant’s backing his car; there was no evidence of speed or erratic driving. Rainer v. State, 944 So. 2d 115, 2006 Miss. App. LEXIS 885 (Miss. Ct. App. 2006).

Trial court erred in failing to grant defendant’s motion to suppress where, pursuant to Miss. Const. Art. 3, § 23 and the Fourth Amendment, the officers did not have reasonable suspicion to detain defendant because there was no evidence that he attempted to flee the scene when approached by police in what they believed to be a high crime area. Rainer v. State, 2005 Miss. App. LEXIS 917 (Miss. Ct. App. Nov. 22, 2005), op. withdrawn, sub. op., 944 So. 2d 115, 2006 Miss. App. LEXIS 885 (Miss. Ct. App. 2006).

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).

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).

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).

Every search and seizure is unreasonable where it is not made according to law. Adams v. State, 202 Miss. 68, 30 So. 2d 593, 1947 Miss. LEXIS 243 (Miss. 1947).

Violation of this constitutional guaranty by an unreasonable search is tantamount to compelling defendant to testify against himself. Adams v. State, 202 Miss. 68, 30 So. 2d 593, 1947 Miss. LEXIS 243 (Miss. 1947).

This section prohibits only unreasonable searches. Stogner v. Crystal Springs Baptist Church, 22 So. 2d 368 (Miss. 1945).

Only State officers come within State constitutional prohibition against unreasonable searches and seizures. McLemore v. State, 178 Miss. 525, 172 So. 139, 1937 Miss. LEXIS 176 (Miss. 1937); Little v. State, 171 Miss. 818, 159 So. 103, 1935 Miss. LEXIS 26 (Miss. 1935).

This section does not prohibit all searches and seizures, nor require a warrant in all cases, but it only prohibits unreasonable searches and seizures. Moore v. State, 138 Miss. 116, 103 So. 483, 1925 Miss. LEXIS 105 (Miss. 1925).

The reasonableness of a search or seizure is a judicial question. Moore v. State, 138 Miss. 116, 103 So. 483, 1925 Miss. LEXIS 105 (Miss. 1925).

Before a search can be unlawful the officer must invade the premises or property of the defendant who must at least have a right of possession that would make him owner for the time being. Lee v. Oxford, 134 Miss. 647, 99 So. 509, 1924 Miss. LEXIS 318 (Miss. 1924).

37. Arrest supported by probable cause.

When an officer approached to disperse a crowd drinking alcohol in violation of a city ordinance, he saw defendant drop a bag that the officer believed to be crack cocaine; the recovered bag was confirmed through testing to contain crack cocaine. Under these facts, the officer had more than sufficient probable cause to arrest defendant; therefore, the trial court did not abuse its discretion in admitting the recovered crack cocaine into evidence. Butler v. State, 19 So.3d 111, 2009 Miss. App. LEXIS 154 (Miss. Ct. App.), cert. denied, 19 So.3d 82, 2009 Miss. LEXIS 490 (Miss. 2009).

Even without the evidence from a recorded telephone call, a deputy had probable cause to arrest defendant because the defendant’s daughter’s allegation of sexual battery alone gave law enforcement officers probable cause for an arrest warrant. Bankston v. State, 4 So.3d 377, 2008 Miss. App. LEXIS 540 (Miss. Ct. App. 2008), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 110 (Miss. 2009).

In a manslaughter case, defendant’s argument that there was an illegal arrest was rejected because there was a reasonable belief that a homicide had been committed based on the statement of a coroner and a doctor who performed an autopsy, as well as the discovery of the knife used in the murder and the fact that an eyewitness later changed her story that the victim committed suicide and implicated defendant as the perpetrator. Therefore, evidence in the case was properly admitted; it was noted that some of the evidence was found prior to defendant’s arrest. Brown v. State, 970 So. 2d 1300, 2007 Miss. App. LEXIS 826 (Miss. Ct. App. 2007).

RESEARCH REFERENCES

ALR.

Constitutionality of statute or ordinance authorizing an arrest without a warrant. 1 A.L.R. 585.

Constitutional guaranties against unreasonable searches and seizures as applied to search for or seizure of intoxicating liquor. 3 A.L.R. 1514; 13 A.L.R. 1316; 27 A.L.R. 709; 39 A.L.R. 811; 74 A.L.R. 1418.

Entry and search of premises for purpose of arresting one without search warrant. 5 A.L.R. 263.

Right to jury trial in case of seizure of property alleged to be illegally used. 17 A.L.R. 568, 50 A.L.R. 97.

Federal Constitution as a limitation upon the powers of the state in respect of search and seizure. 19 A.L.R. 644.

Admissibility of evidence obtained by illegal search and seizure. 24 A.L.R. 1408; 32 A.L.R. 408; 41 A.L.R. 1145; 52 A.L.R. 477; 88 A.L.R. 348; 134 A.L.R. 819; 150 A.L.R. 566; 50 A.L.R.2d 531.

Right of search and seizure incident to lawful arrest without a search warrant. 32 A.L.R. 680; 51 A.L.R. 424; 74 A.L.R. 1387; 82 A.L.R. 782.

Injunction against search of premises for liquor. 36 A.L.R. 936.

Necessity of showing warrant upon making arrest under warrant. 40 A.L.R. 62.

Civil liability for improper issuance of search warrant or proceedings thereunder. 45 A.L.R. 605.

Rights and protection of innocent persons where property in which they are interested is seized because of its illegal use in connection with intoxicating liquor. 47 A.L.R. 1055; 61 A.L.R. 551; 73 A.L.R. 1087; 82 A.L.R. 607; 124 A.L.R. 288.

Admissibility of evidence obtained by government or other public officer by intercepting letter or telegraph or telephone message. 53 A.L.R. 1485; 66 A.L.R. 397; 134 A.L.R. 614.

Search of automobile without a warrant by officers relying on description of persons suspected of a crime. 60 A.L.R. 299.

Liability on bond of sheriff or other peace officer for unlawful search. 62 A.L.R. 855.

Constitutionality of statute providing for seizure of property of absent husband or parent, for benefit of wife or child. 65 A.L.R. 886.

Arrest, or search and seizure, without warrant on suspicion or information as to unlawful possession of weapons. 92 A.L.R. 490.

Power of municipal or school authorities to prescribe vaccination or other health measure as a condition of school attendance. 93 A.L.R. 1413.

Validity of particular statutory provision or other regulation as to inspection, entry, or search of places licensed for sale of intoxicating liquors. 116 A.L.R. 1098.

Illustrations of distinction, as regards search and seizure, between papers or other articles which merely furnish evidence of crime, and the actual instrumentalities of crime. 129 A.L.R. 1296.

Admissibility of evidence obtained by unlawful search and seizure. 150 A.L.R. 566; 50 A.L.R.2d 531.

Search incident to one offense as justifying seizure of instruments or articles connected with another offense. 169 A.L.R. 1419.

Liability for false arrest or imprisonment under a warrant as affected by mistake as to identity of person arrested. 10 A.L.R.2d 750.

Searches and seizures by health officers without warrant. 13 A.L.R.2d 969.

Modern status of rule as to validity of nonconsensual search and seizure made without warrant after lawful arrest as affected by lapse of time between, or difference in place of, arrest and search. 19 A.L.R.2d 727.

Transiently occupied room in hotel, motel, or rooming house as within provision forbidding unreasonable searches and seizures. 86 A.L.R.2d 984.

Search warrant: sufficiency of showing as to time of occurrence of facts relied on. 100 A.L.R.2d 525.

Validity of consent to search given by one in custody of officers. 9 A.L.R.3d 858.

Lawfulness of search of motor vehicle following arrest for traffic violation. 10 A.L.R.3d 314.

Propriety of considering hearsay or other incompetent evidence in establishing probable cause for issuance of search warrant. 10 A.L.R.3d 359.

Comment Note: “Fruit of the poisonous tree” doctrine excluding evidence derived from information gained in illegal search. 43 A.L.R.3d 385.

Search and seizure: “furtive” movement or gesture as justifying police search. 45 A.L.R.3d 581.

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)–state cases. 1 A.L.R.4th 673.

Admissibility of evidence discovered in warrantless search of rental property authorized by lessor of such property–state cases. 2 A.L.R.4th 1173.

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.

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.

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.

Validity of, and admissibility of evidence discovered in, search authorized by judge over telephone. 38 A.L.R.4th 1145.

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.

Search and seizure of telephone company records pertaining to subscriber as violation of subscriber’s constitutional rights. 76 A.L.R.4th 536.

Search conducted by school official or teacher as violation of fourth amendment or equivalent state constitutional provision. 31 A.L.R.5th 229.

Application of “plain feel” exception to warrant requirements–state cases. 50 A.L.R.5th 581.

Propriety of search of nonoccupant visitor’s belongings pursuant to warrant issued for another’s premises. 51 A.L.R.5th 375.

Admissibility of evidence discovered in search of adult defendant’s property or residence authorized by defendant’s minor child–state cases. 51 A.L.R.5th 425.

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.

Admissibility of evidence discovered in warrantless search of rental property authorized by lessor of such property – state cases. 61 A.L.R.5th 1.

Searches and seizures: reasonable expectation of privacy in contents of garbage or trash receptacle. 62 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.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by defendant’s spouse (resident or nonresident cases) – state cases. 65 A.L.R.5th 407.

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 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.

Constitutionality of secret video surveillance. 91 A.L.R.5th 585.

Expectation of privacy in internet communications. 92 A.L.R.5th 15.

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.

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.

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.

Application of constitutional “compactness requirement” to redistricting. 114 A.L.R.5th 311.

State court jurisdiction over congressional redistricting disputes. 114 A.L.R.5th 387.

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.

Procedural issues concerning public school funding cases. 115 A.L.R.5th 563.

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.

Validity of search conducted pursuant to parole warrant. 123 A.L.R.5th 221.

Use of trained dog to detect narcotics or drugs as unreasonable search in violation of state constitutions. 117 A.L.R.5th 407.

Validity of warrantless search of motor vehicle driver based on odor of marijuana – State cases. 123 A.L.R.5th 179.

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.

Search and Seizure: Reasonable Expectation of Privacy in Outbuildings. 67 A.L.R.6th 437.

Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Search and Seizure Issues – Pretrial Motions – Suppression Motions Where Warrant Was Involved. 72 A.L.R.6th 1.

Reverse-Franks Claims, Where Police Arguably Omit Facts from Search or Arrest Warrant Affidavit Material to Finding of Probable Cause with Reckless Disregard for the Truth – Underlying Homicide and Assault Offenses. 72 A.L.R.6th 437.

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.

Employee’s Expectation of Privacy in Workplace. 18 A.L.R.6th 1.

Expectation of Privacy in Text Transmissions to or from Pager, Cellular Telephone, or Other Wireless Personal Communications Device. 25 A.L.R. 6th 201.

Timeliness of Execution of Search Warrant. 27 A.L.R.6th 491.

Validity of Search and Reasonable Expectation of Privacy as Affected by No Trespassing or Similar Signage. 45 A.L.R.6th 643.

Construction and Application of “Automatic Companion Rule” or Person’s “Mere Propinquity” to Arrestee to Determine Propriety of Search of Person for Weapons or Firearms. 47 A.L.R.6th 423.

Search and Seizure: Reasonable Expectation of Privacy in Side Yards. 69 A.L.R.6th 275.

Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Search and Seizure Issues – Pretrial Motions – Suppression Motions Where No Warrant Involved. 71 A.L.R.6th 1.

Reverse-Franks Claims, Where Police Arguably Omit Facts from Search or Arrest Warrant Affidavit Material to Finding of Probable Cause with Reckless Disregard for the Truth – Underlying Sexual Offenses. 74 A.L.R.6th 69.

Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Search and Seizure Issues – Pretrial Motions – Motions Other than for Suppression. 73 A.L.R.6th 1.

Reverse-Franks Claims, Where Police Arguably Omit Facts from Search or Arrest Warrant Affidavit Material to Finding of Probable Cause with Reckless Disregard for Truth – Underlying Drug Offenses. 73 A.L.R.6th 49.

Permissibility under Fourth Amendment of Investigatory Traffic Stop Based Solely on Anonymous Tip Reporting Drunk Driving. 84 A.L.R.6th 293.

Expectation of Privacy in and Discovery of Social Networking Web Site Postings and Communications. 88 A.L.R.6th 319.

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.

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.

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.

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.

Validity, under Fourth Amendment, of “mail cover”. 57 A.L.R. Fed. 742.

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.

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.

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.

When facts are offered in support of search warrant for evidence of federal drug offense so untimely as to be stale. 13 A.L.R. Fed. 2d 1.

Am. Jur.

68 Am. Jur. 2d, Searches and Seizures §§ 1 et seq.

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).

47 Am. Jur. (1st ed), Searches and Seizures §§ 1-74.

CJS.

C.J.S. Searches and Seizures §§ 2 to 11, 42, 47.

Lawyers’ Edition.

Constitutionality of searching premises without search warrant as incident to valid arrest. 23 L. Ed. 2d 966.

Validity, under Federal Constitution, of warrantless search of automobile. 26 L. Ed. 2d 893.

Warrantless automobile search held constitutional even though vehicle had been impounded and secured. 80 L. Ed. 2d 381.

Warrantless “murder scene” search of defendant’s home held unconstitutional. 80 L. Ed. 2d 246.

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 search of packages 3 days after their seizure from vehicle held permissible under Fourth Amendment. 80 L. Ed. 2d 890.

Evidence obtained in reasonable reliance on defective search warrant held admissible. 82 L. Ed. 2d 677.

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.

Compelled surgical procedure to remove bullet from suspect’s chest held to constitute unreasonable search under Fourth Amendment. 84 L. Ed. 2d 662.

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.

Law enforcement officer’s authority, under Federal Constitution’s Fourth Amendment, to stop and briefly detain, and to conduct limited protective search of or “frisk,” for investigative purposes, person suspected of criminal activity – Supreme Court cases. 104 L. Ed. 2d 1046.

Law Reviews.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Roy, Constitutional Law-Mississippi’s Recognition of a Privacy Right To Refuse Medical Treatment. 7 Miss. C. L. Rev. 47, Fall, 1986.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond. 56 Miss L. J. 73, April, 1986.

Granston, From private places to private activities: toward a new Fourth Amendment house for the shelterless. 101 Yale L. J. 1305, April 1992 (what is “house” with respect to homeless person for search and seizure purposes).

Practice References.

Young, Trial Handbook for Mississippi Lawyers § 27:9.

JUDICIAL DECISIONS

1. Construction and application.

2. Ecclesiastical controversies.

3. Right to remedy.

4. Right to maintain suit without prepayment of costs.

5. Notice rights.

6. Right of appeal.

7. Form of action.

8. Validity of statutes.

9. Limitation of actions.

10. Trial practice and procedure.

11. Powers of local government.

12. Damage to property.

13. Taxpayer action.

14. Abatement of nuisances.

15. Elections.

16. Fraternal societies.

17. Will contests.

1. Construction and application.

Because the courts are open to every person, an alleged undocumented immigrant is not barred from tort recovery solely based on his or her alleged undocumented status. McKean v. Yates Eng'g Corp., 200 So.3d 431, 2016 Miss. LEXIS 385 (Miss. 2016).

It was error to dismiss an employee’s claim to recover damages for injuries they sustained when a scaffolding collapsed due to his immigration status because the employee could very well have proven his claims without presenting evidence of his status as an immigrant; the Mississippi Constitution does not limit access to the courts and leaves open for every person a remedy for injury done to his or her person. McKean v. Yates Eng'g Corp., 200 So.3d 431, 2016 Miss. LEXIS 385 (Miss. 2016).

Where delays in a divorce case were caused by a former wife’s illness and car accident, as well as the hospitalization of one of the husband’s attorneys, the delay was necessary under Miss. Const. Art. 3, § 24; moreover, the husband had no right to a speedy trial. Stuart v. Stuart, 956 So. 2d 295, 2006 Miss. App. LEXIS 759 (Miss. Ct. App. 2006).

The Remedy Clause, Miss. Const. Art. 3, § 24, does not conflict with sovereign immunity, does not require exceptions to sovereign immunity, and does not grant an absolute guarantee of a trial; thus, no violation of the Remedy Clause occurred when plaintiff’s action against the Mississippi Department of Corrections and a prison official for the wrongful death of an inmate was dismissed based on the immunity granted in Miss. Code Ann. §11-46-9(1)(m). 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).

Mississippi Constitution Article III, § 24 and § 25 permit a party to proceed pro se. Thus, a husband and wife were permitted to proceed pro se in a divorce action. Bullard v. Morris, 547 So. 2d 789, 1989 Miss. LEXIS 355 (Miss. 1989).

Sections 24 and 25 of the Mississippi Constitution, together with Code 1942, § 2944, constitute a separate and distinct classification of legal authority vested in citizens and taxpayers for the apparent purpose of preventing and correcting improbity in office by duly elected public officials. Saxon v. Harvey, 223 So. 2d 620, 1969 Miss. LEXIS 1280 (Miss. 1969).

Not one party, but all parties may claim the benefit of this provision. Gordin v. State, 159 So. 2d 278 (Miss. 1964).

This provision does not preclude necessary delay. Gordin v. State, 159 So. 2d 278 (Miss. 1964).

This section requiring that “all courts shall be open” means that the court shall “afford equal access to all” and a “fair hearing” conforming to the principles of due process of law. Miles v. Board of Sup'rs, 33 So. 2d 810 (Miss. 1948).

Provision that every person shall for an injury, etc., have remedy by due course of law refers to legal injury, and affords judicial remedy for unlawful violation of the named rights. State v. McPhail, 182 Miss. 360, 180 So. 387, 1938 Miss. LEXIS 147 (Miss. 1938).

2. Ecclesiastical controversies.

This provision of Constitution and Fourteenth Amendment to the Constitution of United States 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).

3. Right to remedy.

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).

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).

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).

A member of a labor union may resort to the courts for the protection of his rights as such member. Lowery v. International Brotherhood of Boilermakers, etc., 241 Miss. 458, 130 So. 2d 831, 1961 Miss. LEXIS 365 (Miss. 1961).

Action of Governor calling out national guard and what members of militia may do in pursuance of such order, was subject to judicial review at suit or other appropriate legal challenge of any citizen who can show he has been unlawfully affected in his private personal or private property rights. State v. McPhail, 182 Miss. 360, 180 So. 387, 1938 Miss. LEXIS 147 (Miss. 1938).

Mandamus, prohibition, or injunction cannot direct or restrain Governor in the exercise of his power, but any Act which may injure a citizen in his legal rights under the law is subject to redress in the courts. State v. McPhail, 182 Miss. 360, 180 So. 387, 1938 Miss. LEXIS 147 (Miss. 1938).

Breach of legal duty owed by one person to another gives rise to cause of action where damages result therefrom. Stokes v. Newell, 174 Miss. 629, 165 So. 542, 1936 Miss. LEXIS 212 (Miss. 1936).

4. Right to maintain suit without prepayment of costs.

This section of the constitution does not make applicable statute permitting a person to commence suit upon a poverty affidavit without prepayment of, or security for, cost through the setting down of the mandate of the supreme court. Life & Casualty Ins. Co. v. Walters, 190 Miss. 761, 198 So. 746, 200 So. 732, 1940 Miss. LEXIS 183 (Miss. 1940).

All persons satisfying court of inability to secure costs are entitled to maintain suit, though not able to give bond or deposit money. Meeks v. Meeks, 156 Miss. 638, 126 So. 189, 1930 Miss. LEXIS 185 (Miss. 1930).

5. Notice rights.

“Due course of law” requires actual notice to known resident defendants. Brown v. Board of Levee Comm'rs, 50 Miss. 468, 1874 Miss. LEXIS 80 (Miss. 1874).

6. Right of appeal.

Order enjoining grand jury’s investigation of district attorney’s alleged receipt of improper payments was appealable by state. State v. Pacific (Ex parte Jones County Grand Jury, First Judicial Dist.), 705 So. 2d 1308, 1997 Miss. LEXIS 747 (Miss. 1997).

The due process clause of the Mississippi Constitution required that a plaintiff’s appeal, which had been dismissed for failure to file a timely notice of appeal, be reinstated, since (1) 3 jury verdict forms which did not contain the word “judgment” did not constitute final judgments and therefore were not appealable, (2) the plaintiff was never notified of the existence of those forms, they were not in the court file, were not entered on the docket, and were presented to the judge ex parte, and (3) the plaintiff filed her notice of appeal within 30 days of the disposition of the post-trial motions and timely perfected her appeal to the Supreme Court. Roberts v. Grafe Auto Co., 653 So. 2d 250, 1994 Miss. LEXIS 360 (Miss. 1994).

The legislature cannot discriminate against a class of persons as to incidents of an appeal from the judgment of an inferior court. Chicago, S. L. & N. O. R. Co. v. Moss & Co., 60 Miss. 641, 1882 Miss. LEXIS 107 (Miss. 1882).

The legislature cannot take away the right to an appeal after it has been exercised. Commercial Bank of Natchez v. Chambers, 16 Miss. 9, 1847 Miss. LEXIS 1 (Miss. 1847).

7. Form of action.

Form of action for breach of legal duty owed by one person to another giving rise to cause of action where damages result is called a “tort.” Stokes v. Newell, 174 Miss. 629, 165 So. 542, 1936 Miss. LEXIS 212 (Miss. 1936).

8. Validity of statutes.

Sovereign immunity protection granted under Miss. Code Ann. §11-46-7 to a doctor of a state hospital in a medical malpractice action brought by a patient did not constitute a violation of the remedy clause. Gilchrist v. Veach, 807 So. 2d 485, 2002 Miss. App. LEXIS 79 (Miss. Ct. App. 2002).

Sections 11-46-1 through 11-46-23 do not violate the constitutional requirements that courts be open and that a remedy be available for every injury since the remedy clause is not an absolute guarantee of trial and it is the legislature’s decision whether to address restrictions upon actions against government entities. Quinn v. Mississippi State Univ., 720 So. 2d 843, 1998 Miss. LEXIS 328 (Miss. 1998), overruled in part, City of Jackson v. Estate of Stewart, 908 So. 2d 703, 2005 Miss. LEXIS 298 (Miss. 2005).

The Mississippi Legislature’s post-Pruett legislative enactments on sovereign immunity (§§11-46-1 et seq.) do not violate the remedy clause of the Mississippi Constitution. Robinson v. Stewart, 655 So. 2d 866, 1995 Miss. LEXIS 223 (Miss. 1995).

Section 11-46-6 [repealed] is not unconstitutional by virtue of conflict with “remedy clause” of § 24 of Article 3 of state constitution; proper forum to address complaints regarding immunity of sovereign is the legislature, and inasmuch as state constitution places no limit on legislature’s ability to enact legislation, state is free from liability unless it carves an exception in the form of tort claims acts, and legislature has carved no such exception for type of suit brought in present case, where survivors of a girl who drowned in Pearl River when outboard motorboat in which she was riding struck a submerged object and went over dam and capsized, and where Water District had installed cable and warning signs such cable and signs were not maintained and present on day in question. Grimes v. Pearl River Valley Water Supply Dist., 930 F.2d 441, 1991 U.S. App. LEXIS 8297 (5th Cir. Miss. 1991).

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).

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).

The Workmen’s Compensation Law does not violate constitutional provision providing that all courts shall be open and that every person, for an injury done him in his lands, goods, person or reputation, shall have the remedy by due process of law, and that right and justice shall be administered without sale, denial or delay. Walters v. Blackledge, 220 Miss. 485, 71 So. 2d 433, 1954 Miss. LEXIS 464 (Miss. 1954).

A statute making the jurisdiction of a justice of the peace concurrent with the circuit court of the county over all crimes occurring in their several districts of the character of misdemeanor and providing that if there should not be a justice of the peace in the district in which any crime was committed qualified to try the accused, any justice of the peace of the county should have jurisdiction thereof, is valid. Farrar v. State, 191 Miss. 1, 2 So. 2d 146, 1941 Miss. LEXIS 121 (Miss. 1941).

Law requiring banks to pay interest on tax collections held not in violation of constitutional provisions relative to due process. 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).

Chapter 115, Acts of 1908 provides that the possession of certain appliances shall be presumptive evidence of violation of law prohibiting sale of intoxicating liquors and is constitutional. State v. Kirby, 96 Miss. 629, 51 So. 811, 1910 Miss. LEXIS 197 (Miss. 1910).

9. Limitation of actions.

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).

The ten-year limitation contained in §15-1-41 does not violate either Article 3, § 24 or Article 4, § 87 of the Mississippi Constitution. Anderson v. Fred Wagner & Roy Anderson, Jr., Inc., 402 So. 2d 320, 1981 Miss. LEXIS 2052 (Miss. 1981).

A one-year statute of limitations barring actions for the recovery of land does not violate the section. Cameron v. Louisville N. O. & T. R. Co., 69 Miss. 78, 10 So. 554, 1891 Miss. LEXIS 74 (Miss. 1891).

10. Trial practice and procedure.

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).

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).

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).

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).

11. Powers of local government.

City’s use of financial costs as criteria for location of water lines in annexed area was rational and did not violate homeowner’s state equal protection rights. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

Since a municipality is a creature of the Legislature, it may, within the limitations of § 17 and this section of the State Constitution, impart to it some of its sovereignty by statute. Bishop v. City of Meridian, 223 Miss. 703, 79 So. 2d 221, 1955 Miss. LEXIS 426 (Miss. 1955).

Authority given a municipality to close or vacate a street is judicial in character and does not violate this section. Polk v. Hattiesburg, 109 Miss. 872, 69 So. 675, 1915 Miss. LEXIS 236 (Miss. 1915); Covington County v. Watts, 120 Miss. 428, 82 So. 309, 1919 Miss. LEXIS 102 (Miss. 1919).

12. Damage to property.

Where plaintiff residents and land owners sued defendant energy and chemical companies alleging the companies’ emitted greenhouse gasses contributed to global warming, resulting in rising sea levels and Hurricane Katrina’s ferocity, which combined to destroy plaintiff’s property and public property, because the complaint relied on scientific reports, alleging a chain of causation between the companies’ substantial emissions and the injuries, the public and private nuisance, trespass, and negligence claims satisfied the traceability requirement for standing under U.S. Const. Art. III, and thus also satisfied standing under Miss. Const. Art. III, § 24, because Mississippi’s Constitution did not limit the judicial power to cases or controversies and Mississippi’s courts had been more permissive than federal courts in granting standing to parties. Comer v. Murphy Oil USA, 585 F.3d 855, 2009 U.S. App. LEXIS 22774 (5th Cir. Miss. 2009), vacated, 598 F.3d 208, 2010 U.S. App. LEXIS 4253 (5th Cir. Miss. 2010).

A corporation which employed a seismograph crew to explore land was liable to a landowner for damages to his land resulting from the explosion of a charge of dynamite below the landowner’s dam, as part of the exploratory process, which injured the dam and caused a pond and a spring to go dry. Bynum v. Mandrel Industries, Inc., 241 So. 2d 629, 1970 Miss. LEXIS 1346 (Miss. 1970).

Appraisers appointed to determine the amount of the actual cash value of the insured property and of loss may not, consistently with this section, determine whether damage was due to cause insured against. Munn v. National Fire Ins. Co., 237 Miss. 641, 115 So. 2d 54, 1959 Miss. LEXIS 516 (Miss. 1959).

Where a wife brought an action against the husband to recover injuries sustained by wife when the husband negligently drove his car, the contention by the wife that she was entitled to have a remedy by due course of law for this injury to her person was not maintainable on the ground that the act of her husband constituted no legal wrong. Ensminger v. Ensminger, 222 Miss. 799, 77 So. 2d 308, 1955 Miss. LEXIS 667 (Miss. 1955), overruled, Burns v. Burns, 518 So. 2d 1205, 1988 Miss. LEXIS 18 (Miss. 1988).

State Highway Commission was liable to a property owner for damage to her land, resulting from the use thereof for parking its machinery, during the course of road construction and as an essential part of its work, over the protest of the landowner. State Highway Com. v. Mason, 192 Miss. 576, 4 So. 2d 345, 6 So. 2d 468, 1941 Miss. LEXIS 6 (Miss. 1941).

13. Taxpayer action.

A taxpayer was entitled to bring a suit in his own name and against the county supervisor for an accounting and to act as his own attorney. Saxon v. Harvey, 223 So. 2d 620, 1969 Miss. LEXIS 1280 (Miss. 1969).

14. Abatement of nuisances.

Landowners, joining in equity suit to abate common nuisance and for damages, have right to have their controversy adjudicated in court of competent jurisdiction, and chancery court in which suit was brought has jurisdiction to proceed, after settlement of suit on abatement of nuisance issue, to full and complete determination of all remaining issues, even though they may cover only legal rights and require granting of none but legal remedies. McClendon v. Mississippi State Highway Com., 205 Miss. 71, 38 So. 2d 325, 1949 Miss. LEXIS 413 (Miss. 1949).

15. Elections.

A hearing before a board of supervisors to determine whether a petition for an election to exclude wine and beer from a county contains the names of a sufficient number of qualified electors is a judicial proceeding from which interested parties and their attorneys may not be excluded and from whom relevant facts may not be withheld. Miles v. Board of Sup'rs, 33 So. 2d 810 (Miss. 1948).

An order by the board of supervisors adjudicating the sufficiency of the petition and ordering an election, after a secret session from which interested parties and their attorneys were excluded, and a final judgment of the board excluding wine and beer from the county, pursuant to such election, are without authority of law and a denial of due process. Miles v. Board of Sup'rs, 33 So. 2d 810 (Miss. 1948).

16. Fraternal societies.

Positions in fraternal societies, social or religious organizations, are valuable rights pertaining to the liberty of the citizen, and one’s reputation is affected if he is expelled from such an organization, or deprived of his rights without an opportunity to be heard. Cherry v. Bivens, 185 Miss. 329, 187 So. 525, 1939 Miss. LEXIS 139 (Miss. 1939).

17. Will contests.

Forfeiture provisions in wills in Mississippi were enforceable unless a will contest was founded upon probable cause and made in good faith. Thus, a complainant was entitled to the complainant’s inheritance as provided in the decedent’s will because the forfeiture provision in the decedent’s will was unenforceable against the complainant in that, under the totality of the circumstances, the complainant’s will contest was based upon probable cause and was brought in good faith. Parker v. Benoist, 160 So.3d 198, 2015 Miss. LEXIS 113 (Miss. 2015).

RESEARCH REFERENCES

ALR.

Liability for prenatal injuries. 40 A.L.R.3d 1222.

Who is “public figure” in the light of Gertz v. Robert Welch Inc. (1974) 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997.75 A.L.R.3d 616.

Exterminator’s tort liability for personal injury or death directly resulting from operations. 29 A.L.R.4th 987.

Proof of injury to reputation as prerequisite to recovery of damages in defamation action-post-Gertz cases. 36 A.L.R.4th 807.

Criticism or disparagement of physician’s or dentist’s character, competence, or conduct as defamation. 38 A.L.R.4th 836.

Defamation: privilege accorded state or local governmental administrative records relating to private individual member of public. 40 A.L.R.4th 318.

Right to compensation for real property damaged by law enforcement personnel in course of apprehending suspect. 23 A.L.R.5th 834.

Am. Jur.

16A Am. Jur. 2d, Constitutional Law §§ 366, 367, 400.

49 Am. Jur. Proof of Facts 2d 649, General Reputation of Person in Community.

5 Am. Jur. Proof of Facts 3d, Defamation by Employer, §§ 1 et seq.

6 Am. Jur. Proof of Facts 3d, Invasion of Privacy by False Light Publicity, §§ 1 et seq.

CJS.

C.J.S. Constitutional Law §§ 1428 to 1432.

Law Reviews.

1978 Mississippi Supreme Court Review: Criminal Law and Procedure. 50 Miss. L. J. 59, March 1979.

1979 Mississippi Supreme Court Review: Torts. 50 Miss. L. J. 887, December 1979.

Collins, Reliance on State Constitutions: Some Random Thoughts. 54 Miss L. J. 371, Sept.-Dec., 1984.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond. 56 Miss L. J. 73, April, 1986.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

JUDICIAL DECISIONS

1. In general.

2. Pro se representation.

3. Representation by counsel.

1. In general.

Constitution was violated because a father, individually, was removed from the courtroom during the testimony of the mother’s daughter from a previous relationship, and the presence of his counsel did not cure the error; however, the error was harmless because the father’s counsel was present during the entire questioning, and the father failed to explain how the examination would have changed had he been present alongside his counsel. Miller v. Smith, 229 So.3d 100, 2017 Miss. LEXIS 427 (Miss. 2017).

Chancellor’s order to clear the courtroom while daughter testified did not violate father’s rights under Section 25, Article 3 of the Mississippi Constitution because the father’s counsel was present during his child’s testimony. Miller v. Smith, 229 So.3d 148, 2016 Miss. App. LEXIS 749 (Miss. Ct. App. 2016), aff'd, 229 So.3d 100, 2017 Miss. LEXIS 427 (Miss. 2017).

It was error to dismiss an employee’s claim to recover damages for injuries they sustained when a scaffolding collapsed due to his immigration status because the employee could very well have proven his claims without presenting evidence of his status as an immigrant; the Mississippi Constitution does not limit access to the courts and leaves open for every person a remedy for injury done to his or her person. McKean v. Yates Eng'g Corp., 200 So.3d 431, 2016 Miss. LEXIS 385 (Miss. 2016).

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).

In a custody dispute, the trial court erred in enjoining the teenage daughter’s counsel from discussing the final outcome of the trial with her, because the order effectively prevented the daughter from further prosecuting the civil action brought by her through her counsel in violation of Miss. Const. Art. 3, § 25, and denied her access to legal advice from the attorney who represented her throughout the trial. If the chancellor believed that the daughter was not properly before the court as a party, or felt that it was inappropriate for the daughter to continue as a party, she could have granted the motion to dismiss or appointed a guardian ad litem. D.A.P. v. C.A.P.R. (In re E. C. P.), 918 So. 2d 809, 2005 Miss. App. LEXIS 439 (Miss. Ct. App. 2005).

Citizens may challenge governmental actions contrary to law where the action would otherwise escape challenge. Fordice v. Thomas, 649 So. 2d 835, 1995 Miss. LEXIS 34 (Miss. 1995), but see USPCI of Mississippi v. State ex rel. McGowan, 688 So. 2d 783, 1997 Miss. LEXIS 42 (Miss. 1997).

Sections 24 and 25 of the Mississippi Constitution, together with Code 1942, § 2944, constitute a separate and distinct classification of legal authority vested in citizens and taxpayers for the apparent purpose of preventing and correcting improbity in office by duly elected public officials. Saxon v. Harvey, 223 So. 2d 620, 1969 Miss. LEXIS 1280 (Miss. 1969).

The Grand Lodge cannot arrest or forfeit the charter of a subordinate lodge and by such act acquire the property belonging to such 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).

A litigant cannot be excluded from the hearing of the testimony of other witnesses in the case because he is himself to testify; but may be made to testify, if at all, before the other witnesses are examined. French v. Sale, 63 Miss. 386, 1885 Miss. LEXIS 84 (Miss. 1885), limited, Garmon v. State, 66 Miss. 196, 5 So. 385, 1888 Miss. LEXIS 88 (Miss. 1888).

The legislature cannot discriminate against classes of persons as litigants. Chicago, S. L. & N. O. R. Co. v. Moss & Co., 60 Miss. 641, 1882 Miss. LEXIS 107 (Miss. 1882).

2. Pro se representation.

Trial court abused its discretion in dismissing an action under Miss. R. Civ. P. 41(b) for failure to obtain counsel because there was no legal basis to support the dismissal, as there was no requirement that a party be represented by an attorney. Holly v. Harrah's Tunica Corp., 962 So. 2d 136, 2007 Miss. App. LEXIS 499 (Miss. Ct. App. 2007).

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 state constitutional right to self-representation loses effect upon a suit’s removal to federal court; thus, the plaintiff was not denied his constitutional rights when he was barred by federal court order from prosecuting any case in federal court without representation. Prewitt v. City of Greenville, 161 F.3d 296, 1998 U.S. App. LEXIS 30720 (5th Cir. Miss. 1998).

Mississippi Constitution Article III, § 24 and § 25 permit a party to proceed pro se. Thus, a husband and wife were permitted to proceed pro se in a divorce action. Bullard v. Morris, 547 So. 2d 789, 1989 Miss. LEXIS 355 (Miss. 1989).

A taxpayer was entitled to bring a suit in his own name and against the county supervisor for an accounting and to act as his own attorney. Saxon v. Harvey, 223 So. 2d 620, 1969 Miss. LEXIS 1280 (Miss. 1969).

3. Representation by counsel.

In a medical-malpractice action, although the patient was constitutionally entitled to participate in closing argument, the untimeliness and method by which she sought to participate was impermissible. During closing argument, rebuttal was strictly limited to providing a response to issues addressed in the closing argument; however, when announcing the patient’s intention to personally participate, her attorney declared that she would “repeat” her testimony, not rebut arguments made by the doctor. Dunn v. Yager, 58 So.3d 1171, 2011 Miss. LEXIS 204 (Miss. 2011).

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).

Physician did not have right to counsel under Mississippi Constitution at hearing before hospital’s judicial review committee to revoke his surgical privileges; tribunal which revoked physician’s privileges was not tribunal of the state. Wong v. Stripling, 700 So. 2d 296, 1997 Miss. LEXIS 385 (Miss. 1997).

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).

South Carolina trial judge’s order that defendant in homicide trial not consult with his attorney during 15-minute recess at conclusion of defendant’s direct testimony does not violate defendant’s right to counsel under federal constitution’s Sixth Amendment. Perry v. Leeke, 488 U.S. 272, 109 S. Ct. 594, 102 L. Ed. 2d 624, 1989 U.S. LEXIS 306 (U.S. 1989).

An officer conducting a parole revocation proceeding is not “a tribunal” but rather is performing an administrative act, and parolees are not entitled to counsel in all such hearings. Mississippi State Probation & Parole Board v. Howell, 330 So. 2d 565, 1976 Miss. LEXIS 1847 (Miss.), cert. dismissed, 426 U.S. 955, 96 S. Ct. 3184, 49 L. Ed. 2d 1195, 1976 U.S. LEXIS 2210 (U.S. 1976).

Limitation of fee of attorney appearing before board of review did not deprive claimant of constitutional right where neither claimant nor his attorney appeared at the hearing of the appeal. Mississippi Employment Sec. Com. v. Wilks, 247 Miss. 737, 156 So. 2d 583, 1963 Miss. LEXIS 352 (Miss. 1963).

RESEARCH REFERENCES

Am. Jur.

30 Am. Jur. Trials 607, Defending against Claim of Ineffective Assistance of Counsel.

CJS.

C.J.S. Trial §§ 36, 40.

Lawyers’ Edition.

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

Law Reviews.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond. 56 Miss L. J. 73, April, 1986.

Editor’s Note —

The 1994 amendment of Section 26, Mississippi Constitution of 1890, proposed by Laws, 1994, ch. 668 (House Concurrent Resolution No. 79), was approved by the House of Representatives on March 29, 1994, and by the Senate on March 30, 1994. It was ratified by the electorate on November 8, 1994, and inserted as part of the Constitution by proclamation of the Secretary of State on December 9, 1994.

Laws, 1994, ch. 668, further provides:

“BE IT FURTHER RESOLVED, That the explanatory statement of the substance of this proposed constitutional amendment for the ballot shall read as follows: ’This proposed constitutional amendment authorizes the Legislature to enact laws establishing a state grand jury and authorizes such grand jury to return indictments in criminal cases regardless of the county where the crime was committed. The jurisdiction of a state grand jury is limited to drug offenses which occur in more than one circuit court district. Venue for the trial of indictments returned by a state grand jury shall be as prescribed by general law.

“BE IT FURTHER RESOLVED, That House Concurrent Resolution No. 79, 1994 Regular Session, supersedes House Concurrent Resolution No. 21, 1993 Regular Session (Chapter 624, Laws of 1993).

“BE IT FURTHER RESOLVED, That the Secretary of State shall give public notice of an election in the manner and for the time provided by Section 273 of the Constitution, for the purpose of submitting the amendment to Section 26, Mississippi Constitution of 1890, as proposed by House Concurrent Resolution No. 79, 1994 Regular Session, in substitution and in lieu of the amendment to Section 26, Mississippi Constitution of 1890, as proposed by House Concurrent Resolution No. 21, 1993 Regular Session, and for the purpose of submitting any other proposed amendments to the Constitution to the qualified electors of this state for ratification or rejection, such election to be conducted and held on the first Tuesday after the first Monday of November 1994, in the manner provided by law for statewide general elections.”

JUDICIAL DECISIONS

1. In general.

1.5. Applicability.

2. Public trial.

3. Venue of trial.

4. Self-incrimination – In general.

5. – – Validity of statutes, self-incrimination.

6. – – Privilege against self-incrimination.

7. – – Immunity, self-incrimination.

8. – – Nature of proceeding, self-incrimination.

9. – – Grand jury proceedings, self-incrimination.

10. – – Civil proceedings generally, self-incrimination.

11. – – Pleadings in civil actions, self-incrimination.

12. – – Discovery proceedings, self-incrimination.

13. – – Pro se or hybrid representation, self-incrimination.

14. – – Pre-arrest admissions, self-incrimination.

15. – – Miranda warnings, self-incrimination.

16. – – Request for counsel, self-incrimination.

17. – – Interrogation generally, self-incrimination.

18. – – Interrogation after counsel requested, self-incrimination.

19. – – Capacity to waive rights, self-incrimination.

20. – – Waiver of rights, self-incrimination.

21. – – Refusal to sign waiver of rights, self-incrimination.

22. – – Voluntariness of admission, self-incrimination.

23. – – Inducements, self-incrimination.

24. – – Coercion or duress, self-incrimination.

25. – – Illegal arrest, self-incrimination.

26. – – Confessions generally, self-incrimination.

27. – – Guilty plea, self-incrimination.

28. – – Physical evidence, self-incrimination.

29. – – Tests and test results, self-incrimination.

30. – – Videotapes, self-incrimination.

31. – – Admissions not presented into evidence, self-incrimination.

32. – – Impeachment, self-incrimination.

33. – – Comment on refusal to testify generally, self-incrimination.

34. – – Comment of counsel on refusal to testify generally, self-incrimination.

35. – – Comment of counsel at sentencing phase of capital prosecution on refusal to testify, self-incrimination.

36. – – Nonjury trial, self-incrimination.

37. – – Instructions, self-incrimination.

38. – – Presumptions and burden of proof, self-incrimination.

39. Speedy trial – In general.

40. – – Statutory rights, speedy trial.

41. – – Administrative proceedings, speedy trial.

42. – – Attachment of right, speedy trial.

43. – – Invocation of right, speedy trial.

44. – – Factors considered, speedy trial.

45. – – Time of demand for trial, speedy trial.

46. – – Delay attributable primarily to defendant, speedy trial.

47. – – Presumptively prejudicial delay, speedy trial.

48. – – Tolling of time, speedy trial.

49. – – Delay attributable primarily to state, speedy trial.

50. – – Delay not attributable to defendant or state.

51. – – Crowded docket, speedy trial.

52. – – Reindictment, speedy trial.

53. – – Guilty plea, speedy trial.

54. – – Plea negotiations, speedy trial.

55. – – Burden of proof, speedy trial.

56. – – Sufficiency of evidence, speedy trial.

57. – – Retrial, speedy trial.

58. – – Waiver, speedy trial.

59. Fair trial – In general.

60. – – Juveniles, fair trial.

61. – – Indigent defendants, fair trial.

62. – – Publicity, fair trial.

63. – – Identification of accused, fair trial.

64. – – Mental competence of defendant, fair trial.

65. – – Plea bargaining, fair trial.

66. – – Conduct of trial, fair trial.

67. – – Expert witnesses, fair trial.

68. – – Arguments of counsel, fair trial.

69. – – Instructions to jury, fair trial.

70. – – Quotient verdict, fair trial.

71. – – Disparity in sentences, fair trial.

72. – – Jury trial.

73. Impartial jury – In general.

74. – – Validity of statutes, impartial jury.

75. – – Venire, impartial jury.

76. – – Persons disqualified from jury duty, impartial jury.

77. – – Disabled jurors, impartial jury.

78. – – Disqualification for cause, impartial jury.

79. – – Pre-trial publicity, impartial jury.

80. – – Voir dire, impartial jury.

81. – – Capital punishment, impartial jury.

82. – – Racial discrimination in jury selection, impartial jury.

83. – – Race-neutral selection of jury, impartial jury.

84. – – Gender discrimination, impartial jury.

85. – – Trial conduct, impartial jury.

86. – – Sequestration, impartial jury.

87. – – Misconduct of jury, impartial jury.

88. – – Review, impartial jury.

89. Nature and cause of accusation – In general.

90. – – Validity of statutes, nature and cause of accusation.

91. – – Purpose, nature and cause of accusation.

92. – – Necessary accusations, nature and cause of accusation.

93. – – Specificity, nature and cause of accusation.

94. – – Amendment of indictment or information, nature and cause of accusation.

95. – – Included lesser offenses, nature and cause of accusation.

96. – – Sufficiency, nature and cause of accusation.

97. – – Instructions, nature and cause of accusation.

98. – – Time to raise issue, nature and cause of accusation.

99. Compulsory process–In general.

100. – – Administrative proceedings, compulsory process.

101. – – Child witnesses, compulsory process.

102. – – Expert witnesses, compulsory process.

103. – – Character witnesses, compulsory process.

104. – – Continuances, compulsory process.

105. Right to be present at trial–In general.

106. – – Misconduct of defendant, right to be present at trial.

107. – – Waiver, right to be present at trial.

107. —Waiver, right to be present at trial;

108. Confrontation of witnesses – In general.

109. – – Time right attaches, confrontation of witnesses.

110. – – Pre-trial confrontation of witnesses.

111. – – Joint trial, confrontation of witnesses.

112. – – Misconduct of defendant, confrontation of witnesses.

113. – – Child witnesses, confrontation of witnesses.

114. – – Unavailable witnesses, confrontation of witnesses.

115. – – Adverse or hostile witnesses, confrontation of witnesses.

116. – – Discovery, confrontation of witnesses.

117. – – Test results and testing equipment, confrontation of witnesses.

118. – – Informants, confrontation of witnesses.

119. – – Accomplices and codefendants, confrontation of witnesses.

120. – – Examination of witnesses generally, confrontation of witnesses.

121. – – Impeachment, confrontation of witnesses.

122. – – Hearsay evidence, confrontation of witnesses.

123. – – Waiver, confrontation of witnesses.

124. Right of accused to be heard.

125. Right to counsel – In general.

126. – – Administrative proceedings, right to counsel.

127. – – Pro se or hybrid representation, right to counsel.

128. – – Accrual of right to counsel.

129. – – Invocation of right to counsel.

130. – – Time of appointment, right to counsel.

131. – – Counsel of defendant’s choosing, right to counsel.

132. – – Conflicts of interest, right to counsel.

133. – – Continuances, right to counsel.

134. – – Indigent defendants, right to counsel.

135. – – Accessibility of counsel to defendant, right to counsel.

136. – – Informants, right to counsel.

137. – – Critical stage, right to counsel.

138. – – Lineups, right to counsel.

139. – – Parole and probation revocation proceedings, right to counsel.

140. – – Post-conviction proceedings, right to counsel.

141. – – Waiver, right to counsel.

142. Ineffectiveness of counsel – In general.

143. – – Waiver of issue, ineffectiveness of counsel.

144. – – Factors considered, ineffectiveness of counsel.

145. – – Speedy trial, ineffectiveness of counsel.

146. – – Trial strategy, ineffectiveness of counsel.

147. – – Guilty plea or plea bargaining, ineffectiveness of counsel.

148. – – Jury selection, ineffectiveness of counsel.

149. – – Conduct of trial, ineffectiveness of counsel.

150. – – Examination of witnesses, ineffectiveness of counsel.

151. – – Objection to admission or suppression of evidence, ineffectiveness of counsel.

152. – – Objection to jury instructions, ineffectiveness of counsel.

153. – – Continuances, ineffectiveness of counsel.

154. – – Sentencing proceedings, ineffectiveness of counsel.

153. – – Appeal of cause, ineffectiveness of counsel.

156. – – Pleading, ineffectiveness of counsel.

157. – – Sufficiency of evidence, ineffectiveness of counsel.

158. – – Totality of circumstances, ineffectiveness of counsel.

159. – – Different result or trial outcome, ineffectiveness of counsel.

160. – – Presumptions, ineffectiveness of counsel.

161. – – Burden of proof, ineffectiveness of counsel.

162. – – Post-conviction remedies, ineffectiveness of counsel.

163. – Victim statements, ineffectiveness of counsel.

164. Abatement ab initio.

1. In general.

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).

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).

In a divorce action, a former husband’s constitutional rights were not violated by a complaint that alleged cruel and inhumane treatment 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).

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).

1.5. Applicability.

Chancery court did not violate the Confrontation Clause by allowing a child to testify outside of the father’s presence; the Confrontation Clause only applies to criminal cases. Miller v. Smith, 229 So.3d 148, 2016 Miss. App. LEXIS 749 (Miss. Ct. App. 2016), aff'd, 229 So.3d 100, 2017 Miss. LEXIS 427 (Miss. 2017).

2. Public trial.

Circuit court’s reasoning for excluding the public from the victim’s testimony, because the testimony was sensitive and related to domestic violence, did not overcome defendant’s constitutional right to a public trial. Turner v. State, — So.3d —, 2020 Miss. App. LEXIS 84 (Miss. Ct. App. Mar. 17, 2020).

Trial court erred in closing the courtroom during a victim’s testimony in order to show a video that defendant allegedly took of her because the decision was overly broad and violative of defendant’s constitutional right to a public trial where the video showed the victim undressed from the waist up and lasted a little over a minute, the victim’s testimony was not needed to explain anything on the video, and it could have been played at a different time. Pierce v. State, 250 So.3d 493, 2018 Miss. App. LEXIS 41 (Miss. Ct. App. 2018).

Defendant’s friend was not kicked out of the courtroom but left of her own accord after creating a disruption, and the record did not show that the circuit court excluded any member of the public from attending defendant’s trial, and his contention that the circuit court denied him a public trial was without merit. Parks v. State, 228 So.3d 853, 2017 Miss. App. LEXIS 58 (Miss. Ct. App.), cert. denied, 220 So.3d 977, 2017 Miss. LEXIS 262 (Miss. 2017).

In addition to receiving threats, the witnesses who were called to testify reported the same vehicles continuously driving by their houses at night during the trial, plus the judge noted that the courtroom was more crowded than usual and emotions were running high; there was no issue with the judge’s limited closure of the courtroom during the testimony of these witnesses for their own safety and the safety of court personnel. Lewis v. State, 140 So.3d 1290, 2014 Miss. App. LEXIS 353 (Miss. Ct. App. 2014).

Defendant’s conviction for fondling was appropriate in regard to the closure of the courtroom to the public during the victim’s testimony. Defendant and his counsel remained in the courtroom during the testimony and defendant was permitted to face his accuser during her testimony; the limitation was no broader than necessary to protect the victim during her testimony. Richardson v. State, 990 So. 2d 247, 2008 Miss. App. LEXIS 253 (Miss. Ct. App. 2008).

Defendant’s convictions for sexual battery and fondling of a child were appropriate because his right to a public trial under Miss. Const. Art. 3, § 26 was not violated; the requirement of the victim to testify to potentially embarrassing or emotionally disturbing facts of a sexual nature clearly fell within the category of instances in which public exclusion is appropriate. Tillman v. State, 947 So. 2d 993, 2006 Miss. App. LEXIS 525 (Miss. Ct. App. 2006), cert. denied, 947 So. 2d 960, 2007 Miss. LEXIS 81 (Miss. 2007).

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).

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).

It is irrelevant that Article 3 § 26 enumerates crimes for which closed trials may be conducted, and that murder is not one of them, where closure order did not propose to close trial. Mississippi Publishers Corp. v. Coleman, 515 So. 2d 1163, 1987 Miss. LEXIS 2900 (Miss. 1987).

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).

Guarantees of open public proceedings in criminal trials embodied in First Amendment cover proceedings for voir dire examination of potential jurors and closed proceedings, although not absolutely precluded, must be rare and only for cause shown that outweighs value of openness. Press-Enter. Co. v. Superior Court of California, 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629, 1984 U.S. LEXIS 20 (U.S. 1984).

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 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. Young v. State, 352 So. 2d 815, 1977 Miss. LEXIS 1974 (Miss. 1977).

Defendant’s right to a public trial was not denied by a jury selection procedure under which challenges to jurors were discussed and made in trial judge’s chambers, and district attorney was not required to announce in open court the name of each juror challenged by the state. Peters v. State, 314 So. 2d 724, 1975 Miss. LEXIS 1683 (Miss.), cert. denied, 423 U.S. 1019, 96 S. Ct. 457, 46 L. Ed. 2d 392, 1975 U.S. LEXIS 3639 (U.S. 1975).

In an armed robbery prosecution, the defendant was not denied his constitutional right to a public trial by virtue of the fact that the courthouse doors were locked for a period of 30 minutes while the court heard motions of the defendant to suppress alleged illegally obtained evidence, and to quash alleged illegally obtained declarations, in the absence of any other restriction, limitation, or exclusion of the public during the trial. Norwood v. State, 258 So. 2d 756, 1972 Miss. LEXIS 1512 (Miss. 1972).

In a prosecution for unlawful possession of intoxicating liquors where a motion for directed verdict was heard in the chambers and the accused in no way objected to this procedure and in fact actively participated by initiating his motion in the chambers, the accused waived his right to complain of the private hearing and there was no error although the better practice would be for the trial judge to retire the jury and for him to remain in the courtroom to hear and pass upon the motion inasmuch as the public has a substantial interest in the public nature of a trial. Brown v. State, 222 Miss. 863, 77 So. 2d 694, 1955 Miss. LEXIS 678 (Miss. 1955).

In order to comply with the constitutional mandate of a public trial, peremptory challenges should be exercised at the bar, in open court. Hollis v. State, 221 Miss. 677, 74 So. 2d 747, 1954 Miss. LEXIS 577 (Miss. 1954).

Concentration of those spectators of the defendant’s race in the balcony when requested to remain off the crowded main floor did not deny any constitutional right of the defendant. Murray v. State, 202 Miss. 849, 33 So. 2d 291, 1948 Miss. LEXIS 213 (Miss.), cert. denied, 333 U.S. 869, 68 S. Ct. 787, 92 L. Ed. 1147, 1948 U.S. LEXIS 2364 (U.S. 1948).

Court may lawfully exclude general public from courtroom in exercise of its discretion in prosecution for attempt to rape. Sallie v. State, 155 Miss. 547, 124 So. 650, 1929 Miss. LEXIS 319 (Miss. 1929).

This section does not permit the exclusion from the courtroom of the public in murder trials. Carter v. State, 99 Miss. 435, 54 So. 734, 1911 Miss. LEXIS 189 (Miss. 1911).

3. Venue of trial.

Court of Appeals properly affirmed defendant’s conviction and sentence for Medicaid fraud because the statutory venue provisions were limited to civil cases, defendant’s trial was in the county “where the offense was committed,” as provided by the state constitution, and Medicaid fraud was exempt from the two-year statute of limitations inasmuch as it was a species of or within the definition of “obtaining money or property under false pretenses or by fraud.” Azomani v. State, 222 So.3d 282, 2017 Miss. LEXIS 220 (Miss. 2017).

Where a child testified that defendant sodomized him while they were in a chicken house in Lena, Mississippi, which the boy believed was in Scott County, as Lena was in fact in Leake County, and the jury was never instructed that it had to find beyond a reasonable doubt that the crime had occurred in Scott County–an essential element of the offense–defendant’s conviction of fondling the child was reversed. Rogers v. State, 95 So.3d 623, 2012 Miss. LEXIS 399 (Miss. 2012).

Trial court abused its discretion in not allowing capital murder defendant to exercise his constitutional right under Article 3, § 26 of the Mississippi Constitution to be tried in the county where the offense occurred. Once defendant requested that the trial court return venue to the county where the offense was committed, the trial court was under an obligation to either grant his request, or at the very least, to offer clear justification for the decision to deny the request and change venue to another county. Maye v. State, 49 So.3d 1140, 2009 Miss. App. LEXIS 807 (Miss. Ct. App. 2009), vacated, 49 So.3d 1124, 2010 Miss. LEXIS 622 (Miss. 2010).

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).

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 present no evidence that he could not or did not receive 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).

In a prosecution for conspiracy to possess morphine and to commit grand larceny, possession of morphine, and aggravated assault, where testimony showed that defendants conspired to steal morphine in one county, and that their assault victim was found unconscious and injured in a second county, the evidence was sufficient to establish jurisdiction in the second county. Stubbs v. State, 845 So. 2d 656, 2003 Miss. LEXIS 115 (Miss. 2003).

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).

A defendant waived his right to a change of venue where he filed a motion for change of venue with 2 supporting affidavits prior to selection of the jury but did not call the motion to the trial court’s attention and did not request a hearing on the motion until after completion of voir dire, after selection of the jury, and after both sides had announced their readiness for trial. 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).

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).

Defendant’s constitutional right to have his criminal trial conducted in the county where the offense was committed, which was waived during his first trial, may be reinstated after appellate reversal and, where, because of a 6 year time lapse between the date of the killing and defendant’s upcoming retrial, defendant believed the adverse publicity surrounding his original trial had subsided, Supreme Court was required to grant defendant’s motion for reinstatement of that right. State v. Caldwell, 492 So. 2d 575, 1986 Miss. LEXIS 2531 (Miss. 1986).

When coverage by local media, including television, radio and newspaper, of capital murder case, which in effect tries and finds defendant guilty not only of capital murder as charged, but also of capital murder in another, uncharged case, is so extensive that at proceedings on voir dire of prospective jurors some 10 1/2 months after defendant’s arrest, everyone of prospective jurors has heard of case, there is presumption that defendant cannot obtain fair and impartial jury and venue of case should be transferred to county substantially outside area of coverage of local media. Fisher v. State, 481 So. 2d 203, 1985 Miss. LEXIS 2281 (Miss. 1985).

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 irrebutable presumption of prejudice. Johnson v. State, 476 So. 2d 1195, 1985 Miss. LEXIS 2257 (Miss. 1985).

Under Article 3, § 26, a defendant has the right to be tried “by an impartial jury of the county where the offense was committed.” Fairchild v. State, 459 So. 2d 793, 1984 Miss. LEXIS 1983 (Miss. 1984).

A convict charged with escaping and breaking prison must be indicted and tried in the county where the crime is alleged to have been committed, unless the venue is changed as provided by law, and if the alleged offense occurred in a county other than the one in which the state penitentiary is located an indictment returned in the county of the penitentiary’s situs must be quashed. Everitt v. Jack, 192 So. 2d 698, 1966 Miss. LEXIS 1266 (Miss. 1966).

It is not the intention of the framers of the constitution that one who commits a crime partly in one county and partly in another should not be amenable to the jurisdiction of the court in either county and should therefore be exempt from prosecution. Aldridge v. State, 232 Miss. 368, 99 So. 2d 456, 1958 Miss. LEXIS 283 (Miss. 1958).

Where the promise of marriage occurred in Forrest County and the act of intercourse occurred in Jones County, since both of these acts constituted essential elements of the offense of seduction, venue could be properly laid in Forrest County without contravening this section. Aldridge v. State, 232 Miss. 368, 99 So. 2d 456, 1958 Miss. LEXIS 283 (Miss. 1958).

Venue of crime was 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 his body was found in same county, that he had received a blow on head breaking skull, small fragments of which were lying on 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).

Venue of crime may be proved by either direct or circumstantial evidence. 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).

Owner of automobile, loaning his automobile to killer and his brother in county of owner’s residence, adjoining county in which killing took place, was not subject to prosecution as an accessory after the fact in county in which killing occurred because killer and his brother who drove the automobile, thereafter drove through such county on the way to the killer’s home, where, although defendant was aware of the crime, he had no connection therewith, and killer’s brother, in driving the automobile, was not the agent of the owner. Washington v. State, 196 Miss. 293, 17 So. 2d 203, 1944 Miss. LEXIS 189 (Miss. 1944).

Where stolen property is carried into another county without the person by whom it was stolen being in any way a party thereto, trial of such person for larceny in such county is a violation of the constitutional provisions requiring prosecution for crime to be conducted in the county where the offense was committed. Woods v. State, 190 Miss. 28, 198 So. 882, 1940 Miss. LEXIS 184 (Miss. 1940).

Where trial court had jurisdiction, its record on trial imported verity, and could not be contradicted by parol in habeas corpus proceeding to show one of jurors was not of county of offense. Lewis v. State, 153 Miss. 759, 121 So. 493, 1929 Miss. LEXIS 79 (Miss. 1929).

4. Self-incrimination – In general.

Defendant’s right against self-incrimination was not violated because, after the circuit court advised defendant of his constitutional rights, he testified on his own behalf; in so doing, he waived his privilege against self-incrimination since he voluntarily and knowingly chose to take the stand and testify; and the State’s line of questioning pursued during defendant’s cross-examination was a comment on his lack of a defense (or his assertion of a new defense at trial) rather than an impermissible comment on his right against self-incrimination; thus, the circuit court did not err by not declaring a mistrial. Mack v. State, 237 So.3d 778, 2017 Miss. App. LEXIS 334 (Miss. Ct. App. 2017), cert. denied, 237 So.3d 1270, 2018 Miss. LEXIS 90 (Miss. 2018).

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 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).

In defendant’s trial for rape, the State presented evidence that defendant had been read his Miranda rights; he did not make any statements until he signed a written waiver of his rights. A deputy stated on the stand that he had made no promises, that he did not threaten defendant, nor did he in any way induce the confession; as such, prior caselaw required the appellate court to affirm the decision. Gray v. State, 2003 Miss. App. LEXIS 1267 (Miss. Ct. App. Aug. 26, 2003).

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).

Where a police witness 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 rise to the level of mistrial. Shelton v. State, 853 So. 2d 1171, 2003 Miss. LEXIS 349 (Miss. 2003).

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).

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).

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).

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).

While the privilege of refusing to testify, if in doing so his answers would incriminate him, may be waived by witness, it is the duty of the court in proper cases to inform the witness of his privilege, so that the witness may decide for himself whether he will claim the privilege. Hutchins v. State, 212 Miss. 145, 54 So. 2d 210, 1951 Miss. LEXIS 436 (Miss. 1951).

Constitutional privilege against self-incrimination is intended to protect witness and has no proper application when witness is not in danger of actual conviction. State v. Milam, 210 Miss. 13, 48 So. 2d 594, 1950 Miss. LEXIS 315 (Miss. 1950).

A witness cannot be compelled to give a link to a chain of evidence by which his conviction of a criminal offense can be insured. Wheat v. State, 201 Miss. 890, 30 So. 2d 84, 1947 Miss. LEXIS 461 (Miss. 1947).

Obtaining evidence unlawfully by search or arrest by officer without authority of law is compelling defendant to testify against himself. Fulton v. Philadelphia, 168 Miss. 30, 148 So. 346, 1933 Miss. LEXIS 161 (Miss. 1933).

5. – – Validity of statutes, self-incrimination.

The fact that under the statute a prima facie case of false pretenses is made by proof of the fact that a person has given a check for value and at a time when he had no or insufficient funds on deposit to pay the check, did not render the statute invalid on the ground that it compelled a defendant to testify against himself. Ray v. State, 229 So. 2d 579, 1969 Miss. LEXIS 1253 (Miss. 1969).

6. – – Privilege against self-incrimination.

Defendant never invoked the right to remain silent but repeatedly asked what defendant was doing at the police station; the police asked defendant about where defendant got the credit cards and defendant never indicated in any way that defendant was invoking the right to remain silent, and thus no substantial right was affected, the plain error rule did not protect defendant, and any error was waived. Smith v. State, 984 So. 2d 295, 2007 Miss. App. LEXIS 643 (Miss. Ct. App. 2007).

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).

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).

7. – – Immunity, self-incrimination.

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).

Where a defendant was brought to the courtroom from her home by a deputy sheriff for the purpose of testifying at the preliminary hearing of another, was sworn as a witness for the state and testified and answered to questions of the state’s attorney, and she was not advised that the evidence she was giving could be used against her but had previously been advised by her attorney that the state had offered her immunity, the introduction of that testimony at the defendant’s subsequent prosecution at which she did not testify, was a violation of her constitutional right not to be compelled to testify against herself. Miller v. State, 250 So. 2d 624, 1971 Miss. LEXIS 1184 (Miss. 1971).

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).

When witnesses subpoenaed to testify as to how they voted in a contested election claimed the privilege of not testifying on the ground of self-incrimination, the court had no authority to grant them immunity if they would testify, and was correct in refusing so to advise them. Hubbard v. McKey, 193 So. 2d 129, 1966 Miss. LEXIS 1277 (Miss. 1966).

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).

In a suit by the state tax collector to collect from defendant statutory fines and penalties for unlawful sales of intoxicating liquors, where the defendants raised the issue that by answering averments to the bill of complaint they would incriminate themselves and where defendants were compelled by the court to answer the bill fully, the defendants were immune from liability for the fines and penalties although the bill of complaint waived answer under oath. Bailey v. Muse, 227 Miss. 51, 85 So. 2d 918, 1956 Miss. LEXIS 654 (Miss. 1956).

Where in a suit by state tax collector to collect from defendants statutory fines and penalties for unlawful sale of intoxicating liquors, the defendants were required to answer allegations in a bill of complaint in chancery and therefore they were required to incriminate themselves, the defendants were immune from assessment of fines and penalties. Bailey v. Muse, 227 Miss. 51, 85 So. 2d 918, 1956 Miss. LEXIS 654 (Miss. 1956).

Where defendants who were charged with assault and battery executed a waiver of immunity of prosecution in the grand jury room and in the presence of the grand jury, the county attorney, and the district attorney, the testimony was involuntarily given and was inadmissible and not usable as a basis of criminal prosecution. State v. Milam, 210 Miss. 13, 48 So. 2d 594, 1950 Miss. LEXIS 315 (Miss. 1950).

8. – – Nature of proceeding, self-incrimination.

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).

The privilege against self incrimination applies to civil as well as criminal actions. Bailey v. Muse, 227 Miss. 51, 85 So. 2d 918, 1956 Miss. LEXIS 654 (Miss. 1956).

The constitutional privilege against self-incrimination applies to proceedings before a grand jury, or coroner’s jury, as well as to those before a court. State v. Milam, 210 Miss. 13, 48 So. 2d 594, 1950 Miss. LEXIS 315 (Miss. 1950).

One compelled to testify before a legislative committee is immune from prosecution for any crime involving facts or acts brought out in his testimony, where such immunity is promised by statute. Wheat v. State, 201 Miss. 890, 30 So. 2d 84, 1947 Miss. LEXIS 461 (Miss. 1947).

9. – – Grand jury proceedings, 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).

Where there was an appeal from a judgment of trial court which quashed an indictment against defendants on the ground that they testified before the grand jury under circumstances indicating that their testimony was not voluntary, the affirmance by the Supreme Court was not a holding that the defendants were immune from prosecution under an indictment by some other grand jury before whom they did not testify. State v. Milam, 210 Miss. 13, 48 So. 2d 594, 1950 Miss. LEXIS 315 (Miss. 1950).

In prosecution of mother and son for murder of father, testimony of mother taken at coroner’s inquest, if mother had been called and used as a witness in like manner with other witnesses at inquest, would not be “voluntary,” and hence would not be admissible in prosecution of mother for murder. Church v. State, 179 Miss. 440, 176 So. 162, 1937 Miss. LEXIS 44 (Miss. 1937).

Defendant’s testimony before grand jury was such as would tend to incriminate him. Thornton v. State, 143 Miss. 262, 108 So. 709, 1926 Miss. LEXIS 263 (Miss. 1926).

10. – – Civil proceedings generally, self-incrimination.

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).

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).

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).

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).

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).

Member of board of supervisors of county district, in suit against him and his surety to recover loss resulting from unauthorized use of construction equipment for benefit of private individuals, could not defeat right to recovery as to the loss, expenses and outlays incurred, on ground that it would tend to incrimination, inasmuch as the member’s action was not criminal, even though it might involve moral turpitude or fraud. Shumpert v. Lee County, 197 Miss. 513, 20 So. 2d 82, 1944 Miss. LEXIS 316 (Miss. 1944).

In view of the fact that an illegal voter, when put on the stand and questioned, could at once invoke the privilege under this section against self-incrimination and refuse to testify, a contestant under the Corrupt Practices Act, upon proof that a number of illegal votes were cast sufficient to change the result of a primary election, was not required to prove that enough of the illegal votes were cast for the contestee to give him the apparent, although not real, majority. Harris v. Stewart, 187 Miss. 489, 193 So. 339, 1940 Miss. LEXIS 226 (Miss. 1940).

In prosecution for conspiracy to defraud State of gasoline excise taxes, evidence furnished by accused’s books which showed date of shipment and number of car of gasoline, without which evidence State could not proceed with prosecution, which books were involuntarily taken from accused by a subpoena duces tecum issued by State senatorial committee, held incompetent. State v. Billups, 179 Miss. 352, 174 So. 50, 1937 Miss. LEXIS 10 (Miss. 1937).

Fact that disbarred attorney, seeking reinstatement, refused to go into matter involved in disbarment trial, was not indication of insufficient repentance, where to do so would require admission that he committed criminal offense. Ex parte Marshall, 165 Miss. 523, 147 So. 791, 1933 Miss. LEXIS 314 (Miss. 1933).

11. – – Pleadings in civil actions, self-incrimination.

That the defendant may not be required to incriminate himself does not render demurrable a petition to enjoin as a public nuisance what is also a crime. State v. Myers, 244 Miss. 778, 146 So. 2d 334, 1962 Miss. LEXIS 506 (Miss. 1962).

12. – – Discovery proceedings, self-incrimination.

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).

Defendant in discovery proceeding who files a motion to strike on ground that petition requires answers which would tend to incriminate him and deny him his constitutional rights, does not, simply by filing the motion, waive his constitutional privilege against self-incrimination. Dabdoub v. Venus, 192 So. 2d 418 (Miss. 1966).

This section applies to answers in chancery, and to interrogatories propounded by a defendant. State v. Myers, 244 Miss. 778, 146 So. 2d 334, 1962 Miss. LEXIS 506 (Miss. 1962).

13. – – Pro se or hybrid representation, self-incrimination.

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).

14. – – Pre-arrest admissions, 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, 1994 Miss. LEXIS 600 (Miss. 1994).

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).

Where minor defendant was not warned by the sheriff that his statement might be used against him and in response to sheriff’s inquiry, defendant’s statement that he had struck the deceased because he had cursed him and no force or threat or duress was used, was admissible and warning was not necessary under the circumstances. Benson v. State, 48 So. 2d 119 (Miss. 1950).

15. – – Miranda warnings, self-incrimination.

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).

As defendant was given his Miranda warnings at the time of his arrest and before he was questioned, the trial court did not abuse its discretion in allowing the statements into evidence. Bankston v. State, 4 So.3d 377, 2008 Miss. App. LEXIS 540 (Miss. Ct. App. 2008), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 110 (Miss. 2009).

Where defendant was being questioned about whether he had been drinking due to the smell of alcohol on him or emanating from within his vehicle, the deputy testified that defendant twice prevented the portable breathalyzer device from properly producing a reading due to biting down on the mouthpiece, the question to defendant about what he would register on the breathalyzer was asked prior to the deputy obtaining an incriminating reading from the breathalyzer device, and no arrest had yet been made; thus, pursuant to the Fifth Amendment and Miss. Const. Art. III, § 26, defendant was not subject to a custodial interrogation and did not need to receive Miranda warnings at the moment he was asked what he would register on a breathalyzer. Keys v. State, 963 So. 2d 1193, 2007 Miss. App. LEXIS 299 (Miss. Ct. App.), cert. denied, 973 So. 2d 245, 2007 Miss. LEXIS 703 (Miss. 2007).

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).

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).

Appellate court affirmed defendant’s conviction in violation of Miss. Code Ann. §63-11-30 and the denial of his motion to suppress because an officer was not required to read defendant his Miranda rights when the officer first started speaking to defendant about an accident as defendant was not in custody at that time. Levine v. City of Louisville, 924 So. 2d 643, 2006 Miss. App. LEXIS 189 (Miss. Ct. App. 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).

In a felony child abuse case, no Miranda warnings were required prior to a statement given by defendant at the police station because defendant came in on his own volition, and warnings were given when it became apparent that inculpatory statements were being made; moreover, defendant’s contention that threats were made was not credible. Wells v. State, 913 So. 2d 1053, 2005 Miss. App. LEXIS 434 (Miss. Ct. App. 2005).

Although defendant challenged his convictions for fondling a child under Miss. Code Ann. §97-5-23(1) and for sexual battery to 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 were consensual, 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; 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).

Miranda applies to custodial interrogations or statements, and it does not apply to statements when a person is not in custody and has the liberty to come and go as he pleases. Fisackerly v. State, 880 So. 2d 368, 2004 Miss. App. LEXIS 809 (Miss. Ct. App. 2004).

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, an indication that he had committed the crime. Emery v. State, 869 So. 2d 405, 2004 Miss. LEXIS 322 (Miss. 2004).

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).

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 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).

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).

Where, before a defendant under arrest made a confession, he was not given warnings of his rights to remain silent and to counsel, his confession and a subsequent confession given after he had received the warnings were inadmissible. Brunson v. State, 264 So. 2d 817, 1972 Miss. LEXIS 1367 (Miss. 1972), overruled, Yates v. State, 467 So. 2d 884, 1984 Miss. LEXIS 2071 (Miss. 1984).

Where the arresting officer and the officer who swore out the affidavit for arrest testified that the defendant had been informed of his right to remain silent and his right to counsel at the state’s expense, and that everything he said could be used against him, and testified that the defendant had not been searched before arrest and that an informer who had advised the police that the defendant was the person who had broken into a shop and stolen the items set forth in the indictment was a credible person, bore probable cause warranting the introduction of physical evidence seized in the search, as well as the alleged confession. Jordan v. State, 257 So. 2d 208, 1972 Miss. LEXIS 1448 (Miss. 1972).

It is not necessary for an officer to warn every person he talks to about a crime of his constitutional right 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).

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).

16. – – Request for counsel, self-incrimination.

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).

Defendant’s statements, “I need to talk to somebody,” “I don’t know if I need a lawyer or not,” and “Do I have the right to stop talking?,” were at best ambiguous requests for an attorney, and investigators did not overstep the constitutional parameters of U.S. Const. Amend. V and Miss. Const. Art. 3, § 26, in following up on defendant’s statements with further questions regarding the statements in order to clarify whether defendant was, in fact, requesting an attorney. Blakeney v. State, 29 So.3d 46, 2009 Miss. App. LEXIS 470 (Miss. Ct. App. 2009), cert. denied, 29 So.3d 774, 2010 Miss. LEXIS 114 (Miss. 2010), cert. denied, 562 U.S. 861, 131 S. Ct. 137, 178 L. Ed. 2d 84, 2010 U.S. LEXIS 6081 (U.S. 2010).

Defendant contended that he repeatedly asked the officers whether he was going to need a lawyer, that they gave no response, and that when he delayed signing the waiver, one officer jumped across the table and told him he (the officer), would give defendant 34 years in prison, but that if defendant gave a statement he could probably get a more lenient sentence. However, the two officers testified to the contrary and they testified that nothing was promised to defendant in exchange for his testimony; defendant had signed a waiver and his confession was deemed voluntary and admissible. Tyler v. State, 911 So. 2d 550, 2005 Miss. App. LEXIS 210 (Miss. Ct. App.), cert. denied, 920 So. 2d 1008, 2005 Miss. LEXIS 600 (Miss. 2005).

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).

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).

17. – – Interrogation generally, self-incrimination.

Defendant’s conviction for felony possession of methamphetamine was appropriate in part because there was no evidence suggesting that defendant attempted to invoke his right to counsel or his right against self-incrimination during what was determined to be a voluntary statement to a police officer; each of those rights was required to be invoked. Mooney v. State, 951 So. 2d 627, 2007 Miss. App. LEXIS 135 (Miss. Ct. App. 2007).

The defendant’s statement that he 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).

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).

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).

18. – – Interrogation after counsel requested, self-incrimination.

Circuit court properly admitted defendant’s confession because defendant initiated further communication with the investigator and then stated he wanted a lawyer, confused because defendant had requested to speak with him a second time to talk about “the situation,” the investigator sought to clarify defendant’s request by reading him his Miranda rights, and after defendant was read his rights, he voluntarily waived his rights and spoke to the investigator. Jackson v. State, — So.3d —, 2020 Miss. App. LEXIS 5 (Miss. Ct. App. Jan. 7, 2020).

Trial court did not abuse its discretion in finding no Miranda violation and in failing to suppress an audio recording of defendant’s interview with law enforcement because defendant’s waiver of Miranda rights was voluntary, and defendant’s continuing to speak without the presence of a requested attorney was also voluntary. Jones v. State, 130 So.3d 519, 2013 Miss. App. LEXIS 199 (Miss. Ct. App. 2013), cert. denied, 131 So.3d 577, 2014 Miss. LEXIS 65 (Miss. 2014).

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 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).

Where accused who was arrested for armed robbery was given Miranda warnings and refused to answer questions but did not request assistance of attorney, and public defender represented accused at bail hearing, but while in jail awaiting further proceedings accused was questioned as to, and admitted involvement in, three other crimes, accused’s Sixth Amendment right to assistance of counsel with respect to the three offenses posed no bar to admission, at trial for these three crimes, of his incriminating statements, since statements were made before right under Sixth Amendment could have been invoked, since right is offense-specific and does not attach until initiation of adversary criminal proceedings. McNeil v. Wisconsin, 501 U.S. 171, 111 S. Ct. 2204, 115 L. Ed. 2d 158, 1991 U.S. LEXIS 3483 (U.S. 1991).

In custodial interrogation where accused requests counsel, interrogation must cease when counsel is requested and police officials may not re-initiate interrogation without counsel present regardless of fact that accused has consulted with counsel; requirement, that accused who invokes right to counsel while undergoing custodial interrogation is not subject to further interrogation until counsel has been “made available” to accused, refers to more than opportunity to consult with attorney outside interrogation room, and protection afforded by such rule in connection with privilege against self-incrimination is not terminated or suspended when counsel has simply consulted with accused; under circumstances of present case, where police agents ceased interrogation at request of accused and accused subsequently spoke with attorney who advised him not to make statement but accused subsequently made confession without counsel present, confession to deputy sheriff was taken in violation of constitutional protection which accused had not validly waived, and was not admissible against accused at trial. Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486, 112 L. Ed. 2d 489, 1990 U.S. LEXIS 6118 (U.S. 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).

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).

19. – – Capacity to waive rights, self-incrimination.

Evidence supported finding that 17-year-old defendant, intelligently, knowingly, and voluntarily waived his privilege against self-incrimination and right to presence of counsel, even though defendant presented evidence that he had low IQ and only read at fourth or fifth grade level, where detectives testified that they advised defendant of his Miranda rights, they read warnings line by line and defendant indicated that he understood each line, they read waiver form to defendant and defendant stated that he understood it and signed form, and they did not make promises of leniency, threats, or use coercive measures, and two of defendant’s teachers testified that defendant could understand basic Miranda rights. McGowan v. State, 706 So. 2d 231, 1997 Miss. LEXIS 717 (Miss. 1997).

Where defendant claims to have lacked mental capacity to understand Miranda warning, determination of trial judge, who has seen defendant on stand, must necessarily be given great weight. McGowan v. State, 706 So. 2d 231, 1997 Miss. LEXIS 717 (Miss. 1997).

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).

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).

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).

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).

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).

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).

The statements made by a defendant on the way to jail after his arrest were admissible in his prosecution for murder, even though they were objected to at the time of admission because of the defendant’s mental condition at the time and because he had not been advised of his constitutional rights, where the proof showed that the statements were not elicited by questions but were voluntary and spontaneous, and where, upon overruling objections, the court explained that counsel would have an opportunity to cross-examine on the defendant’s condition and the jury would determine what credence to give the statements. Howell v. Kirk, 254 So. 2d 887 (Miss. 1971).

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).

Admission in evidence of confession in murder prosecution is not error when prosecution shows that when confession was made defendant was in full possession of his mental faculties, and defendant did not deny making statements, testified that officials had been nice to him, that he had suffered no mistreatment, but that he simply had no recollection of statements or confessions. Price v. State, 207 Miss. 111, 41 So. 2d 37, 1949 Miss. LEXIS 321 (Miss.), cert. denied, 338 U.S. 844, 70 S. Ct. 92, 94 L. Ed. 516, 1949 U.S. LEXIS 1836 (U.S. 1949).

20. – – Waiver of rights, self-incrimination.

Whether there has been intelligent, knowing, and voluntary waiver of Miranda rights is essentially factual inquiry to be determined by trial judge from totality of circumstances. McGowan v. State, 706 So. 2d 231, 1997 Miss. LEXIS 717 (Miss. 1997).

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 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).

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).

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).

The privilege against self-incrimination is personal, and is waived unless claimed. State v. Myers, 244 Miss. 778, 146 So. 2d 334, 1962 Miss. LEXIS 506 (Miss. 1962).

A person does not waive his right to refuse to testify as a witness for the defendant concerning the matters proposed to be proved by him on the ground that his answers might incriminate himself when he testified at the preliminary inquiry conducted by the court in the absence of the jury for the purpose of determining the competency of the alleged confession which the state has introduced as a part of its testimony. Hutchins v. State, 212 Miss. 145, 54 So. 2d 210, 1951 Miss. LEXIS 436 (Miss. 1951).

21. – – Refusal to sign waiver of rights, self-incrimination.

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).

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 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 videotaped confession did not suggest any coercion. Thorson v. State, 653 So. 2d 876, 1994 Miss. LEXIS 600 (Miss. 1994).

22. – – Voluntariness of admission, self-incrimination.

Deputies testified that none of the officers present at the scene told defendant they could do it the easy way or the hard way, and all deputies testified that defendant was not promised a reward or leniency or threatened in any way, such that the State met its burden of proving that defendant’s statements were made voluntarily, and the trial court’s decision to deny defendant’s motion to suppress his statements was not manifestly wrong. Morales v. State, 990 So. 2d 273, 2008 Miss. App. LEXIS 542 (Miss. Ct. App. 2008).

Defendant’s confession to murder was voluntary because defendant signed a waiver of rights form, officers testified that defendant was not promised anything for his truthfulness, defendant did not seem to have any problems understanding his rights, and at the hearing, defendant was able to read each right listed on the waiver. Although he claimed to not remember where he lived, or any of his teachers’ names, defendant acknowledged initialing the waiver in front of the officers. 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 an armed robbery case, suppression of an incriminating statement made to police was not appropriate where there was no credible evidence that the statement was involuntary; the evidence did not show that it was falsified or inaccurate, other than defendant’s own bare assertions that he made no statement to police. Carter v. State, 965 So. 2d 705, 2007 Miss. App. LEXIS 287 (Miss. Ct. App. 2007).

Where a guilty plea was entered in a sexual battery case, there was no way to later challenge based on an allegation that a confession was involuntary since the right to do so was waived by the entry of the plea; therefore, post-conviction relief was properly denied on this ground. Parkman v. State, 953 So. 2d 315, 2007 Miss. App. LEXIS 202 (Miss. Ct. App. 2007).

Detective that was interrogating defendant stated that he told defendant to “tell the truth” and “come clean,” and he would tell the district attorney of defendant’s cooperation; those statements have been held not to be promises of leniency, and also defendant did not show by testimony or otherwise that the alleged promises of leniency by the detective were the proximate cause of his confession to sexual battery. Divine v. State, 947 So. 2d 1017, 2007 Miss. App. LEXIS 23 (Miss. Ct. App. 2007).

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).

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).

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 waiver. Manix v. State, 895 So. 2d 167, 2005 Miss. LEXIS 112 (Miss. 2005).

Confession or statement relating to culpability may be admitted into evidence if it is given freely and voluntarily, and without the influence of promises or threats; a volunteered statement, voiced without prompting or interrogation, is admissible in evidence if made prior to the warning and of course if it were voluntarily and spontaneously made subsequent to the Miranda warning, it would remain admissible in evidence, and an officer is not required to turn a “deaf ear” to such statements. 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).

Fact that defendant was intoxicated when he gave a statement to police regarding the murder of an acquaintance did not mean that the statement was involuntary; officers in the case set forth a prima facie case that defendant’s statement was freely given under the totality of the circumstances since he appeared completely lucid at the time, and there was no evidence of threats or coercion. Schuck v. State, 865 So. 2d 1111, 2003 Miss. LEXIS 753 (Miss. 2003).

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 principle enunciated in Agee v. State (Miss. 1966) 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).

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 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).

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 marshall 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).

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, knowing 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 determined 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).

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).

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).

The statement of a defendant who had voluntarily surrendered himself, and handed a pistol to the sheriff, to the effect that he had shot a man was voluntary and admissible at his trial. Boyles v. State, 223 So. 2d 651, 1969 Miss. LEXIS 1286 (Miss. 1969), cert. denied, 396 U.S. 1005, 90 S. Ct. 558, 24 L. Ed. 2d 497, 1970 U.S. LEXIS 3301 (U.S. 1970).

Defendant is not entitled to have his confessions of guilt nullified by court for reason that none of his friends or relatives or attorney were summoned to be present when confession was made when accused was advised of his right to have attorney before confession was made, confession was made in presence of eleven witnesses and was free and voluntary. 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).

In a prosecution for statutory rape, court’s failure to hold a preliminary hearing outside presence of jury on the question of admissibility of confession which defendant contended was not freely and voluntarily made, and admission of such confession over objection was held prejudicial error as a violation of this section. English v. State, 206 Miss. 170, 39 So. 2d 876, 1949 Miss. LEXIS 251 (Miss. 1949), overruled, Brooks v. State, 242 So. 2d 865, 1971 Miss. LEXIS 1498 (Miss. 1971).

23. – – Inducements, self-incrimination.

Because defendants entered voluntary and intelligent guilty pleas to armed robbery, they waived the right to challenge the voluntariness of their confessions to such under the U.S. Constitution and Miss. Const. Art. 3, §§ 14 and 26; therefore, their motions for post-conviction relief were denied. Holland v. State, 956 So. 2d 322, 2007 Miss. App. LEXIS 56 (Miss. Ct. App. 2007).

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).

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).

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).

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).

A confession was involuntary where it was induced by a sheriff’s statement to the defendant that the defendant would be better off telling the truth, even though the statement of the sheriff may not have been intended as an inducement, where the defendant was a 20-year-old Negro youth of previous good reputation who had never been incarcerated before and who was desirous of being released from jail. Miller v. State, 243 So. 2d 558, 1971 Miss. LEXIS 1518 (Miss. 1971).

24. – – Coercion or duress, self-incrimination.

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).

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).

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).

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).

Where a 17-year-old defendant, who had completed the eighth grade, signed a confession less than an hour after he was taken to the highway patrol office, and after he was advised of his constitutional rights and had waived his right to remain silent and to have an attorney with him, his confession was free and voluntary and admissible in a prosecution for rape, even though the defendant later contended that he did not understand the waiver of his rights and the confession which he had signed, and even though defense counsel stated that at the time of the confession, the defendant was bloody, bruised, terrified and in jail late at night. McLeod v. State, 229 So. 2d 557, 1969 Miss. LEXIS 1247 (Miss. 1969).

Where defendant in a burglary prosecution wanted to show by the testimony of a co-defendant that at the time the burglary was committed the defendant did not instigate the burglary, that he was intoxicated, and that the confession obtained from the defendant was procured as the result of force or violence used by the arresting officers, the court did not err in refusing to have the co-witness testify on the ground that the testimony might incriminate him. Hutchins v. State, 212 Miss. 145, 54 So. 2d 210, 1951 Miss. LEXIS 436 (Miss. 1951).

Slap on face of prisoner by sheriff with open hand and admonition by sheriff against attempt to draw weapon made when prisoner reached toward his pocket, it being explained to prisoner that this was done as precaution for sheriff’s protection and that he would not be slapped if no further attempt was made to draw weapon, does not invalidate subsequent confession freely and willingly given when sheriff makes no suggestion or intimation of reward or punishment, immunity or inducement, to prisoner to make statement. Summerville v. State, 207 Miss. 54, 41 So. 2d 377, 1949 Miss. LEXIS 316 (Miss. 1949).

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 an 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).

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 the 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).

Witness was not incompetent because testimony was obtained by duress, since this section applies only to a defendant being compelled to give evidence against himself. Patterson v. State, 144 Miss. 410, 110 So. 208, 1926 Miss. LEXIS 389 (Miss. 1926).

Confession obtained by improper influence violates this section. Whip v. State, 143 Miss. 757, 109 So. 697, 1926 Miss. LEXIS 316 (Miss. 1926).

The provision that no person shall be compelled to give evidence against himself excludes confessions extorted by violence, and evidence so obtained cannot be used against the prisoner under any circumstances or for any purpose. Jordan v. State, 32 Miss. 382, 1856 Miss. LEXIS 222 (Miss. 1856).

On the question of confessions under duress, etc. Jordan v. State, 32 Miss. 382, 1856 Miss. LEXIS 222 (Miss. 1856).

25. – – Illegal arrest, self-incrimination.

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).

26. – – Confessions generally, self-incrimination.

Defendant’s conviction for fondling a child under the age of 18 was appropriate because, while defendant might not have possessed exceptional intelligence, that was not required to determine that a confession was given voluntarily. Also, nothing indicated that he was intoxicated while giving the confession. Sellars v. Walgreen Co., 971 So. 2d 1278, 2008 Miss. App. LEXIS 3 (Miss. Ct. App. 2008).

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 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).

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).

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).

Defendant argued that the stress of the interrogation and wrongful accusations by a detective caused him to confess to acts against the child victim which he did not commit; however, the trial court’s finding that defendant’s confession was voluntary was not contrary to the overwhelming weight of the evidence because (1) during the second confession, which occurred after defendant expressly requested the interview to continue, he gave a more detailed confession of two acts of sexual abuse against the victim; (2) there was no evidence that any person coerced defendant or promised him anything in return for his confession; (3) it was hard to believe that defendant would think that confessing to sexual abuse of a child would allow the police to release him; and (4) defendant’s argument that the cumulation of the detective’s lies caused him mental distress and led to his confessions was belied by his testimony at the suppression hearing where he stated that the detective’s lies regarding the rape of his stepdaughter did not cause him to confess. Baker v. State, 930 So. 2d 399, 2005 Miss. App. LEXIS 447 (Miss. Ct. App. 2005), cert. denied, 933 So. 2d 303, 2006 Miss. LEXIS 497 (Miss. 2006).

Defendant’s motion to suppress his confession, contending that his rights under the 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).

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).

In order for a confession to be valid, it must be an acknowledgement 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).

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).

In considering totality of circumstances in which written confession is signed, taint resulting from failure of police to inform defendant that counsel is present in jail at time oral statement is being taped is removed when suspect chooses to sign written confession after consultation with attorney. Yates v. State, 467 So. 2d 884, 1984 Miss. LEXIS 2071 (Miss. 1984).

Competency of confession should be ascertained preliminary 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).

Trial court’s determination from testimony of those who were present at taking of confession and from testimony offered by accused as to whether or not confession of accused was made freely and voluntarily will be affirmed unless his decision is manifestly wrong. 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).

27. – – Guilty plea, self-incrimination.

Valid guilty plea operated as a waiver of all non-jurisdictional rights or defects which 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).

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 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).

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).

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 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).

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).

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. Sanders v. State, 440 So. 2d 278, 1983 Miss. LEXIS 2905 (Miss. 1983).

28. – – Physical evidence, self-incrimination.

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).

Voice exemplars are prohibited by neither the Fifth Amendment nor Section 26 of the Mississippi Constitution. Martin v. State, 724 So. 2d 420, 1998 Miss. App. LEXIS 974 (Miss. Ct. App. 1998).

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).

An individual required to give a handwriting exemplar to a grand jury investigating a forgery charge was not “compelled to give evidence against himself.” McCrory v. State, 342 So. 2d 897, 1977 Miss. LEXIS 2346 (Miss. 1977).

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).

To require a defendant to speak in order to assist the prosecuting witness to identify him does not constitute self-incrimination where there was no direct testimony of identification by voice and the matter was raised by the defendant himself, nor would requiring a defendant to put on certain articles of clothing for identification purposes be requiring him to testify against himself. Fondren v. State, 253 Miss. 241, 175 So. 2d 628, 1965 Miss. LEXIS 986 (Miss. 1965).

Where in a prosecution for burglary the identity of the accused was at issue, the defendant’s constitutional rights against self-incrimination were not violated in asking the accused to rise and move to the counsel table where his attorneys were seated. Thames v. State, 221 Miss. 573, 73 So. 2d 134, 1954 Miss. LEXIS 565 (Miss. 1954).

Trial court’s requiring defendant in murder prosecution to stand up for identification by witness was not error where testimony of witness was excluded upon objection that his identification was indefinite and no request was made to exclude the physical evidence of defendant’s standing up for identification. 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).

In prosecution of defendant for shooting prosecuting witness, introduction in evidence of plaster casts made by sheriff of tracks found at scene of crime and of shoes of defendant while defendant was in jail and not wearing such shoes, did not violate defendant’s rights against self-incrimination. Jones v. State, 35 So. 2d 706, 1948 Miss. LEXIS 421 (Miss. 1948).

Opinion given by sheriff on cross examination as to comparisons between defendant’s shoes and tracks made at scene of crime is not subject to objection on appeal, where at the time defendant made no objection and later only in general form that the evidence was in violation of this section. Jones v. State, 35 So. 2d 706, 1948 Miss. LEXIS 421 (Miss. 1948).

Word “evidence” within constitutional provision that defendant in criminal prosecution shall not be compelled to give evidence against himself means evidence by defendant out of court as well as in court, and means not only evidence extorted from a defendant by force outside of court, but also evidence obtained from his books and records brought in by process of court. State v. Billups, 179 Miss. 352, 174 So. 50, 1937 Miss. LEXIS 10 (Miss. 1937).

Evidence of intoxicating liquor procured when sheriff dipped handkerchief in liquor on ground which came from bottles broken by defendant after running away from marshal ordering defendant to halt, without seeing him with any liquor, held illegally obtained, and was inadmissible. Fulton v. Philadelphia, 168 Miss. 30, 148 So. 346, 1933 Miss. LEXIS 161 (Miss. 1933).

Where shotgun shells were unlawfully seized in searching defendant’s home, their introduction in evidence in murder prosecution was violation of constitutional provision relating to giving evidence against oneself. Cofer v. State, 152 Miss. 761, 118 So. 613, 1928 Miss. LEXIS 217 (Miss. 1928).

29. – – Tests and test results, 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 USCS 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).

Consent alone is sufficient to permit the taking of a blood sample, and there is no need for a search warrant or exigent circumstances; where a defendant wishes for the trial court to consider whether diminished capacity made his consent ineffective, he has the burden of introducing evidence to raise that issue. Sumrall v. State, 955 So. 2d 332, 2006 Miss. App. LEXIS 404 (Miss. Ct. App. 2006), cert. denied, 949 So. 2d 37, 2007 Miss. LEXIS 137 (Miss. 2007).

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).

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).

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).

Where the defense of insanity is made, evidence of the facts disclosed by a physical and mental examination of the accused by physicians either prior to or during the trial, without or without his consent does not violate the constitutional privilege of accused not to be a witness against himself. Rogers v. State, 222 Miss. 690, 76 So. 2d 831, 1955 Miss. LEXIS 653 (Miss. 1955).

30. – – Videotapes, self-incrimination.

In a capital murder case, a videotaped confession given by a 16-year-old defendant was admitted as voluntary because officers testified that he was not promised that he would receive treatment as a youthful offender if he gave a statement; the fact that defendant had a limited learning capacity was insufficient until evidence showed that overreaching had occurred. Booker v. State, 2006 Miss. App. LEXIS 635 (Miss. Ct. App. Aug. 29, 2006), op. withdrawn, sub. op., 5 So.3d 411, 2008 Miss. App. LEXIS 77 (Miss. Ct. App. 2008).

In defendant’s criminal trial for statutory rape, the trial court did not violate defendant’s right against self-incrimination by admitting audiotapes containing recorded conversations, given to police by his girlfriend, to demonstrate that defendant had sexual contact with the victim. Defendant was at home and not in police custody at the time that he made his statements on the audiotapes; therefore, he was not entitled to Miranda warnings. Fisackerly v. State, 880 So. 2d 368, 2004 Miss. App. LEXIS 809 (Miss. Ct. App. 2004).

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).

31. – – Admissions not presented into evidence, self-incrimination.

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).

32. – – Impeachment, self-incrimination.

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 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).

In seeking to impeach a prosecution witness, defense counsel could not question the witness as to mere charges of the commission of offenses, especially where such charges were pending and the witness’s testimony might incriminate him. Further, the witness could not be asked nor proof made of the details of an alleged crime said to have been committed by the witness sought to be impeached. Haralson v. State, 314 So. 2d 722, 1975 Miss. LEXIS 1682 (Miss. 1975).

33. – – Comment on refusal to testify generally, self-incrimination.

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).

In a capital murder trial, the trial court did not err in not declaring a mistrial after a witness commented regarding defendant’s exercise of his right to remain silent where the trial court gave a curative instruction, to which the defense did not object. Birkhead v. State, 57 So.3d 1223, 2011 Miss. LEXIS 99 (Miss. 2011).

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).

Because alleged comments on defendant’s failure to testify did not rise to the level of a reversible constitutional error, review on this issue was procedurally barred; however, the claim was meritless at any rate because the prosecutor was not trying to stress by innuendo the fact that defendant elected not to testify when stating that the state’s evidence was unrefuted. Epps v. State, 984 So. 2d 1042, 2008 Miss. App. LEXIS 111 (Miss. Ct. App. 2008).

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).

Court rejected husband’s claim that the State’s closing remark stating 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 exerting his constitutional privilege but rather were comments on the husband and wife’s lack of a defense. Not every comment regarding 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).

Where a police witness 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 rise to the level of mistrial. Shelton v. State, 853 So. 2d 1171, 2003 Miss. LEXIS 349 (Miss. 2003).

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).

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).

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 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 4 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).

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).

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).

34. – – Comment of counsel on refusal to testify generally, self-incrimination.

In a cocaine possession case, defendant’s argument that the prosecutor improperly commented on defendant’s right not to incriminate himself was meritless. When viewed in context, the prosecutor’s comments referred to defendant’s lack of defense and not to his failure to testify. Marshall v. State, 22 So.3d 1194, 2009 Miss. App. LEXIS 38 (Miss. Ct. App. 2009), cert. dismissed, 2009 Miss. LEXIS 594 (Miss. Dec. 3, 2009).

It is a criminal defendant’s constitutional right to choose whether to take the witness stand in his own defense, Miss. Const. Art. 3, § 26; consequently, any reference to the defendant’s failure to testify implying that such failure is improper, or that it indicates the defendant’s guilt is prohibited. However, there is a difference between a comment on a defendant’s choice not to testify in his own defense and a comment on the lack of a credible defense; therefore, when the statement is not an outright violation, an appellate court will review the facts on a case-by-case basis. Mitchell v. State, 21 So.3d 633, 2008 Miss. App. LEXIS 706 (Miss. Ct. App. 2008), cert. denied, 20 So.3d 680, 2009 Miss. LEXIS 575 (Miss. 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 remarks did not infringe on defendant’s right not to testify because the remarks that defendant could also call witnesses to testify merely attempted to rebut the accusations made by defendant’s attorney in his closing argument that the State did not call enough witnesses or present all the evidence that was available to them. Mask v. State, 996 So. 2d 106, 2008 Miss. App. LEXIS 377 (Miss. Ct. App.), cert. denied, 999 So. 2d 374, 2008 Miss. LEXIS 631 (Miss. 2008).

In a burglary case, defendant’s rights under the Fifth Amendment and Miss. Const. Art. 3, § 26 were not violated by a statement made by the prosecution during closing argument, as even though it seemed improper by itself, it was clear from the argument as a whole that the prosecutor was arguing for the credibility of his witness; the trial judge was in the best position to determine the propriety of the comment and it was within his discretion to allow it. Hart v. State, 965 So. 2d 721, 2007 Miss. App. LEXIS 415 (Miss. Ct. App. 2007).

During defendant’s trial, the state’s examination of an officer properly stopped at the point of the interview where defendant invoked his right to remain silent and went no further, and the officer’s testimony about defendant’s refusal to write or record a statement was merely a part of the preceding police interview; because defendant gave an oral statement to the police, testimony of refusal to write or record a statement would not prejudice him further, and therefore the trial court did not err in allowing testimony that defendant refused to make a written or recorded statement. Sacus v. State, 956 So. 2d 329, 2007 Miss. App. LEXIS 189 (Miss. Ct. App. 2007).

Prosecutor’s comments on the unknown men were a direct comment on defendant’s exercise of his right to remain silent and not testify as to who was present, where the prosecutor said that defendant failed to respond to a question about who the men were; there was absolutely no evidence that defendant was ever asked such a question in the first place, much less that he refused to answer it, and thus the prosecutor’s comment violated defendant’s right to remain silent. Davis v. State, 970 So. 2d 164, 2006 Miss. App. LEXIS 907 (Miss. Ct. App. 2006), cert. denied, 968 So. 2d 948, 2007 Miss. LEXIS 652 (Miss. 2007).

Prosecutor’s argument about a hospital was a comment on defendant’s right not to testify because the prosecutor commented on the lack of evidence that defendant intended to take the victim to the hospital on an issue where the only one who could have established that issue was defendant; it was an impermissible comment on defendant’s failure to take the stand and testify to elaborate on his intent to help the victim, and thus the prosecutor’s comment violated defendant’s privilege against self-incrimination. Davis v. State, 970 So. 2d 164, 2006 Miss. App. LEXIS 907 (Miss. Ct. App. 2006), cert. denied, 968 So. 2d 948, 2007 Miss. LEXIS 652 (Miss. 2007).

Defendant’s right to silence was not violated when the prosecution referred to a witness to a murder as the only witness that could have been produced; this was not a comment on defendant’s failure to testify. Ramsey v. State, 959 So. 2d 15, 2006 Miss. App. LEXIS 764 (Miss. Ct. App. 2006), cert. denied, 958 So. 2d 1232, 2007 Miss. LEXIS 588 (Miss. 2007).

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 regarding the defendant’s failure to successfully back up the claim of mistaken identity was not a comment on defendant’s 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).

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).

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).

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 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).

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 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).

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. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

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).

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).

35. – – Comment of counsel at sentencing phase of capital prosecution on refusal to testify, self-incrimination.

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 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).

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, 1994 Miss. LEXIS 600 (Miss. 1994).

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).

36. – – Nonjury trial, self-incrimination.

While a jury is the judge of the weight and worth of a confession admitted in evidence by a trial court in a criminal prosecution, the jury should not be permitted to determine whether such confession is admissible. Norwood v. State, 258 So. 2d 756, 1972 Miss. LEXIS 1512 (Miss. 1972).

37. – – Instructions, self-incrimination.

Jury instruction that the jury could infer guilt of larceny or theft of property if there was no reasonable explanation for possession of recently stolen property was not an improper comment on defendant’s right to remain silent. Riley v. State, 1 So.3d 877, 2008 Miss. App. LEXIS 378 (Miss. Ct. App. 2008), cert. denied, 999 So. 2d 1280, 2009 Miss. LEXIS 18 (Miss. 2009).

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).

38. – – Presumptions and burden of proof, self-incrimination.

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).

39. Speedy trial – In general.

Defendant showed no violation of the constitutional right to a speedy trial because, while an extreme delay weighed against the State, (1) the reasons for the delay were neutral, as both parties sought continuances, (2) defendant’s failure to assert the right until appeal weighed against defendant, and (3) defendant did not show actual prejudice, as nothing supported defendant’s assumption that defendant’s expert would have been allowed to testify at an earlier trial. Williams v. State, 291 So.3d 418, 2020 Miss. App. LEXIS 55 (Miss. Ct. App. 2020).

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 despite the fact that 377 days passed between the date of arrest and trial, as defendant failed to show an improper reason for the delay or that he was prejudiced by the delay. Hoskins v. State, 172 So.3d 1242, 2015 Miss. App. LEXIS 37 (Miss. Ct. App.), cert. denied, — So.3d —, 2015 Miss. LEXIS 449 (Miss. 2015).

Owner’s right to a speedy trial was implicated by a nine-year delay in a civil forfeiture case because length of the delay was substantial, the owner actively pursued his right to contest the forfeiture proceeding as soon as his criminal proceedings ended, he asserted his right to a speedy trial, and he alleged that he was prejudiced by the delay. 1984 Chevy Camaro v. Lawrence County Sheriff's Dep't, 148 So.3d 672, 2014 Miss. App. LEXIS 562 (Miss. Ct. App. 2014).

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 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).

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 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).

Where delays in a divorce case were caused by a former wife’s illness and car accident, as well as the hospitalization of one of the husband’s attorneys, the delay was necessary under Miss. Const. Art. 3, § 24; moreover, the husband had no right to a speedy trial. Stuart v. Stuart, 956 So. 2d 295, 2006 Miss. App. LEXIS 759 (Miss. Ct. App. 2006).

Where 614 days elapsed between defendant’s arrest and the trial, the delay was presumptively prejudicial and triggered consideration of the other Barker factors; however while approximately 114 days could be charged to the State for its delay in collecting a DNA sample, good cause existed for the resulting delay and defendant’s constitutional and statutory rights to a speedy trial were not violated. Johnson v. State, 885 So. 2d 72, 2004 Miss. App. LEXIS 250 (Miss. Ct. App.), cert. denied, 883 So. 2d 1180, 2004 Miss. LEXIS 1332 (Miss. 2004).

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).

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).

State bears burden of bringing accused to trial in speedy fashion. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (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).

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 (Miss. 1989), A.L.R. 4th 3333 .

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 a 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).

The guaranty of a speedy trial does not preclude the state from a reasonable opportunity to examine and prosecute the charge. Ex parte Jefferson, 62 Miss. 223, 1884 Miss. LEXIS 59 (Miss. 1884).

40. – – Statutory rights, speedy trial.

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).

The guarantee of a speedy and public trial is furthered by Code 1942, § 2473. Sheffield v. Reece, 201 Miss. 133, 28 So. 2d 745, 1947 Miss. LEXIS 378 (Miss. 1947).

41. – – Administrative proceedings, speedy trial.

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).

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).

42. – – Attachment of right, speedy trial.

Where defendant charged with murder was apprehended in Chicago, Illinois in December 2001, the State of Mississippi lacked jurisdiction over defendant until his extradition. Defendant’s right to a speedy trial attached on July 16, 2002 when he was arrested by the Holmes County Sheriff’s Department, Mississippi. Amos v. State, 911 So. 2d 644, 2005 Miss. App. LEXIS 652 (Miss. Ct. App. 2005).

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).

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).

For constitutional purposes, defendant’s right to speedy trial attaches at time of arrest. 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).

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).

43. – – Invocation of right, speedy trial.

No speedy trial violation occurred because defendant did not appear to assert his right to a speedy trial but only filed three motions to dismiss for speedy-trial violations, Scott v. State, 231 So.3d 1024, 2016 Miss. App. LEXIS 404 (Miss. Ct. App. 2016), aff'd, 231 So.3d 995, 2017 Miss. LEXIS 440 (Miss. 2017).

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 was procedurally barred on direct appeal from raising the issue of whether defendant’s right to a speedy trial was violated because, while defendant filed numerous motions on the issue, neither defendant nor, counsel set them for a hearing or requested a ruling. Dismissal without prejudice preserved defendant’s ability to raise the issue in a motion for post-conviction relief in association with an ineffective assistance of counsel claim for failure to request a hearing on the motions. Ellis v. State, 141 So.3d 415, 2013 Miss. App. LEXIS 718 (Miss. Ct. App. 2013), cert. denied, 140 So.3d 940, 2014 Miss. LEXIS 317 (Miss. 2014).

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).

Defendant’s conviction for murder was appropriate because his argument that his right to a speedy trial was violated was procedurally barred because he did not raise his constitutional right to a speedy trial except in his brief on appeal. Williams v. State, 53 So.3d 761, 2009 Miss. App. LEXIS 947 (Miss. Ct. App. 2009), rev'd, 53 So.3d 734, 2010 Miss. LEXIS 590 (Miss. 2010).

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).

In applying the facts to the totality of the circumstances, defendant’s right to a speedy trial was not violated because the defense contributed to some of the delays accounted for and failed to object or assert the right to a trial until one month before the actual trial was held. Birkley v. State, 750 So. 2d 1245, 1999 Miss. LEXIS 370 (Miss. 1999).

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).

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).

44. – – Factors considered, speedy trial.

Defendant’s constitutional right to a speedy trial was not violated because, although the delay of 573 days was presumptively prejudicial, his request for a mental evaluation after demanding a speedy trial did not manifest a desire to be tried promptly; and he failed to demonstrate prejudice as, inter alia, there was no evidence that defendant tried to subpoena the alleged perpetrator of the crime or made any attempt at all to locate him. Brown v. State, 285 So.3d 671, 2019 Miss. App. LEXIS 263 (Miss. Ct. App.), cert. denied, 284 So.3d 753, 2019 Miss. LEXIS 438 (Miss. 2019), cert. denied, — So.3d —, 2019 Miss. LEXIS 483 (Miss. 2019).

Defendant’s right to a speedy trial was not violated by the delay of over eight months, as defendant failed to pursue his speedy trial demand, acquiesced to codefendant’s continuance requests, and failed to show prejudice. Harris v. State, 174 So.3d 314, 2015 Miss. App. LEXIS 428 (Miss. Ct. App. 2015).

Defendant’s right to a speedy trial was not violated because while defendant targuably 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).

Defendant’s right to a speedy trial was not violated because during the eight months and nine days between his arrest and trial, defendant never asserted his right to a speedy trial and not seek dismissal from the trial court based on the violation of his speedy-trial rights; defendant showed no prejudice because he failed to establish how his defense was hampered by the delay. McCoy v. State, 160 So.3d 705, 2014 Miss. App. LEXIS 594 (Miss. Ct. App. 2014), cert. dismissed, 160 So.3d 704, 2015 Miss. LEXIS 362 (Miss. 2015).

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’s right to a speedy trial was not violated because the factors weighing in favor of defendant regarding the length and the reason for the delay were neutralized when defendant failed to assert her right, and because she failed to show any resulting prejudice from the 18-and-a-half month delay. McClendon v. State, 124 So.3d 709, 2013 Miss. App. LEXIS 394 (Miss. Ct. App. 2013).

As a trial court, on remand, failed to give defendant a meaningful opportunity to present evidence of prejudice with respect to the Barker factors for his speedy trial claim, arising from a forfeiture action initiated by the county, the remand order was not complied with and the evidence could not be properly weighed. One 1970 Mercury Cougar v. Tunica County, 115 So.3d 792, 2013 Miss. LEXIS 349 (Miss. 2013).

Defendant’s right to a speedy trial was not violated because defendant’s own requests for continuances delayed his trial date for almost three years, he neglected to assert his right to a speedy trial until almost a year after his arrest, and the delay did not result in any prejudice to the defense. Bateman v. State, 125 So.3d 616, 2013 Miss. LEXIS 416 (Miss. 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’s convictions for murder and kidnapping were proper because he was not denied his constitutional right to a speedy trial. In part, although defendant claimed that he was prejudiced by the passage of time between his arrest and the trial because he could no longer recall the names of witnesses or the location of a particular alibi witness, defendant’s counsel represented to the trial court that she had never actually spoken to that particular alibi witness, and she admitted that she did not attempt to interview or locate the witnesses at the time of defendant’s arrest, over a year and a half before the trial; no explanation appeared in the record as to why defendant did not give his attorney the names or location of those witnesses at an earlier date and therefore, defendant’s claims of prejudice were with merit since any prejudice was caused by defendant himself. Lipsey v. State, 50 So.3d 341, 2010 Miss. App. LEXIS 295 (Miss. Ct. App. 2010), cert. denied, 50 So.3d 1003, 2011 Miss. LEXIS 13 (Miss. 2011).

Defendant’s conviction for the sexual battery of his minor daughter was appropriate because he was not denied his constitutional right to a speedy trial since, while there was a delay in the trial, there was no evidence the State deliberately created the delay, nor did defendant object in any way to the delay until the case was set for trial a month later. Further, when defendant did object, he requested the charges be dropped and not that the case be heard sooner; there was also no prejudice to the defense due to the delay. McBride v. State, 61 So.3d 174, 2010 Miss. App. LEXIS 218 (Miss. Ct. App. 2010), superseded, 61 So.3d 138, 2011 Miss. LEXIS 245 (Miss. 2011).

Defendant’s conviction for armed robbery was appropriate because his speedy trial rights were not violated. It did not appear that the delay was done for the purposes of hampering or delaying the defense and defendant further did not show that he was prejudiced because he was unable to locate his girlfriend; the girlfriend’s earlier statement to police served to implicate defendant rather than exonerate him. Jones v. State, 27 So.3d 1172, 2009 Miss. App. LEXIS 549 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 75 (Miss. 2010).

Defendant’s conviction for the possession of methamphetamine precursors was appropriate because he was brought to trial within 275 days of his waiver of an arraignment and there was good cause shown for some of the continuances that were duly granted. There was also nothing indicating that the State exercised a deliberate attempt to sabotage the defense by delaying the trial. Houser v. State, 29 So.3d 813, 2009 Miss. App. LEXIS 562 (Miss. Ct. App. 2009), cert. denied, 29 So.3d 774, 2010 Miss. LEXIS 135 (Miss. 2010).

Defendant was incarcerated for a lengthy time, but it was a result of his request for a mental exam and the various requests for continuances, plus he failed to point to any specific inquiry to his ability to prepare his defense; while not considering lightly that a delay did exist, the court recognized that most of the delay was attributable to defendant, he filed his motions for a speedy trial after the bulk of time had elapsed, and he failed to show that he suffered any actual prejudice due to the delay, such that the court could not find that his constitutional right to a speedy trial was violated. Ray v. State, 27 So.3d 416, 2009 Miss. App. LEXIS 496 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 61 (Miss. 2010).

Defendant’s right to a speedy trial under U.S. Const. Amend. VI and XIV and Miss. Const. Art. 3, § 26 was not violated because despite the fact that more than 600 days had elapsed between defendant’s arrest and his trial, the delay attributable to the Sate was for good cause while the delay attributable to defendant was not. In addition, although defendant asserted his right to a speedy trial, he failed to file a motion to sever his trial from that of his co-defendant and the prejudice factor had to be weighed against defendant. Johnson v. State, 9 So.3d 413, 2008 Miss. App. LEXIS 596 (Miss. Ct. App. 2008), cert. denied, 12 So.3d 531, 2009 Miss. LEXIS 221 (Miss. 2009).

Defendant’s constitutional right to a speedy trial was not violated by the 603 days between his arraignment and his trial because most of the continuances requested by defense counsel were sought in order to prepare for trial, to allow extra time in light of newly appointed counsel to prepare for trial, to prepare for expert witnesses, to allow new counsel to be appointed because of failing health of defendant’s co-counsel, or to obtain records of information needed in preparation for trial; defendant’s murder trial was complicated and involved many difficult issues and required extensive expert testimony. During the time of preparation for defendant’s trial, Hurricane Katrina struck, causing counsel to be uprooted from the area and eventually replaced due to their relocation, which further contributed to the delay. Smith v. State, 977 So. 2d 1227, 2008 Miss. App. LEXIS 157 (Miss. Ct. App. 2008).

Where almost three years elapsed before defendant’s trial for armed robbery, kidnapping, and rape, he was not denied his constitutional right to a speedy trial. Defendant never demanded a speedy trial; most of the delays were for good cause or were caused by defendant; and he failed to show any prejudice. Burton v. State, 970 So. 2d 229, 2007 Miss. App. LEXIS 807 (Miss. Ct. App. 2007).

State was charged with 428 days of delay, which was a 14-month delay that exceeded the eight-month threshold for presumptive prejudice; however, defendant’s constitutional right to a speedy trial was not violated because: (1) although defendant filed two motions to dismiss the indictment for failure to provide a speedy trial, that was not equivalent to requesting a speedy trial; (2) defendant’s inability to work and support the defendant’s family was not the type of suffering required to show that the trial was prejudiced; and (3) the defendant made no assertion that the delay prejudiced the trial. White v. State, 969 So. 2d 72, 2007 Miss. App. LEXIS 247 (Miss. Ct. App.), cert. denied, 968 So. 2d 948, 2007 Miss. LEXIS 658 (Miss. 2007).

Under the Sixth and Fourteenth Amendments and Miss. Const. Art. 3, § 26, defendant’s constitutional right to a speedy trial was not violated because, although there was a long delay before his trial: (1) defendant did not make a demand for a speedy trial until April 15, 2004, nearly 17 months after his arrest, six months after he was indicted, four months after his trial date had been set, and less than three weeks before the trial was scheduled to commence; (2) he then sought to postpone the case until August 16, 2004; and (3) there was no evidence of any actual prejudice suffered by defendant from the delay. Boone v. State, 964 So. 2d 512, 2006 Miss. App. LEXIS 894 (Miss. Ct. App. 2006), cert. denied, 964 So. 2d 508, 2007 Miss. LEXIS 515 (Miss. 2007).

Defendant’s right to a speedy trial under the Sixth Amendment and Miss. Const. Art. 3, § 26 was not violated, even though a 580-day delay was presumptively prejudicial, because there was good reason for the delay due to an officer’s deployment to Iraq, defendant failed to assert his rights, and there was no prejudice shown other than incarceration. Bonds v. State, 938 So. 2d 352, 2006 Miss. App. LEXIS 703 (Miss. Ct. App. 2006).

In a capital murder case, the right to a speedy trial under the Sixth Amendment and the Mississippi Constitution was not violated by a 16-month delay between arrest and the date of trial; although that was presumptively prejudicial, a weighing of the applicable factors showed that there was no violation since the delay was caused by court unavailability and the need for time to complete the investigation, and there was no prejudice shown outside of incarceration itself since the defense was not impaired, no witnesses were rendered unavailable due to the delay, and there was no showing of a loss of evidence. Booker v. State, 2006 Miss. App. LEXIS 635 (Miss. Ct. App. Aug. 29, 2006), op. withdrawn, sub. op., 5 So.3d 411, 2008 Miss. App. LEXIS 77 (Miss. Ct. App. 2008).

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).

Where defendant was indicted on July 16, 2002 for murder, his trial did not begin until May 1, 2003. His constitutional right to a speedy trial was not violated, because he was not prejudiced by the delay. Amos v. State, 911 So. 2d 644, 2005 Miss. App. LEXIS 652 (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).

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).

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 wait 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).

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’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).

Where defendant was held in jail for 325 days before being indicted, and was held in jail for 589 days between his arrest and trial, defendant’s speedy trial claim was without merit; while the length of delay was great, the State’s failure to obtain timely testing was not done to purposefully disadvantage defendant, and defendant’s ability to defend against the charges was not affected. Forrest v. State, 863 So. 2d 1056, 2003 Miss. App. LEXIS 1255 (Miss. Ct. App. 2003).

Although defendant’s trial was delayed, defendant failed to assert his right to a speedy trial, did not object to any delays other than filing the week before trial a motion to dismiss for failure to provide a speedy trial, and failed to show he had suffered any actual prejudice due to the delay; thus, defendant’s constitutional right to a speedy trial was not violated. Mims v. State, 856 So. 2d 518, 2003 Miss. App. LEXIS 377 (Miss. Ct. App.), cert. denied, 859 So. 2d 1017, 2003 Miss. LEXIS 522 (Miss. 2003).

A delay of approximately 14 months between movant’s arrest and movant’s guilty plea was presumptively prejudicial, the record contained no evidence of the reason for delay, which weighed against the State, movant asserted counsel failed to advise movant of the right and that counsel was ineffective, and the prejudice factor weighed in movant’s favor; thus, the trial court erred in denying movant’s postconviction relief motion on the issue without a hearing, and the matter was remanded for an evidentiary inquiry. Robinson v. State, 920 So. 2d 1009, 2003 Miss. App. LEXIS 229 (Miss. Ct. App. 2003), limited, Hill v. State, 60 So.3d 824, 2011 Miss. App. LEXIS 260 (Miss. Ct. App. 2011).

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, 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).

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).

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).

Delay alone is not sufficient to support a finding that the right to a speedy trial has been denied. Smith v. State, 489 So. 2d 1389, 1986 Miss. LEXIS 2482 (Miss. 1986).

45. – – Time of demand for trial, speedy trial.

For purposes of defendant’s constitutional right to a speedy trial, the three and a half year delay before his third trial created a presumption of prejudice; however, the State provided good cause for its delays, and defendant substantially contributed to the delays because, although he asserted his right to a speedy trial, he waived his assertion when he filed a continuance, and he did not reassert his right; and the only prejudice defendant argued was the length of his incarceration, but not anxiety or the impairment of his defense. Walker v. State, 196 So.3d 978, 2015 Miss. App. LEXIS 584 (Miss. Ct. App. 2015), cert. denied, 202 So.3d 613, 2016 Miss. LEXIS 328 (Miss. 2016).

Defendant’s conviction for the sexual battery of his minor daughter was appropriate because he failed to raise his statutory right to a speedy trial specifically under Miss. Code Ann. §99-17-1. Additionally, when he raised his constitutional right to a speedy trial, it was well past the 270-day requirement of the statute. McBride v. State, 61 So.3d 174, 2010 Miss. App. LEXIS 218 (Miss. Ct. App. 2010), superseded, 61 So.3d 138, 2011 Miss. LEXIS 245 (Miss. 2011).

Defendant’s first motion to dismiss was filed over two years after he was indicted and his motion for a speedy trial was first filed 10 days prior to seeking a continuance and next filed after a trial date had been set; the court found that this weighed against defendant. Ray v. State, 27 So.3d 416, 2009 Miss. App. LEXIS 496 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 61 (Miss. 2010).

Defendant’s conviction for possession of cocaine, more then 10 grams, but less than 30 grams, in violation of Miss. Code Ann. §41-29-139(c)(1)(D), was appropriate because his right to a speedy trial was not violated, in part because there was no actual prejudice to defendant as a result of the delay between arrest and trial. Further, defendant was aware of the possibility that charges would be brought against him as a result of his arrest and he did not seek any resolution of the charges until after he was served with the indictment in June 2006. Williams v. State, 5 So.3d 496, 2008 Miss. App. LEXIS 639 (Miss. Ct. App. 2008), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 135 (Miss. 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).

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).

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).

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).

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).

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 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).

The fact that a Mississippi petitioner was indicted at the January 1962 term and not brought to trial until January of 1967, did not deny his constitutional right to a speedy trial, despite his contention that the state should have obtained his release for the purpose of trial from prisons where he was held, where it appeared that with one possible exception he was imprisoned at all times when the state court was in session from the time of arrest until his trial, where he did not at any time demand a trial, although represented by counsel, and where it appeared that he was not prejudiced by the delay, except for a speculation that he might otherwise have received a sentence concurrent with one served from 1964 to 1966. McCrory v. Cook, 329 F. Supp. 83, 1971 U.S. Dist. LEXIS 12171 (N.D. Miss. 1971), aff'd, 454 F.2d 1173, 1972 U.S. App. LEXIS 11146 (5th Cir. Miss. 1972).

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).

46. – – Delay attributable primarily 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’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).

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).

While the 1,995-day delay between his arrest and trial was presumptively prejudicial, defendant’s right to a speedy trial under the Sixth Amendment and this section was not violated since the continuances were either agreed to, a result of a change in counsel, or a result of defendant’s failure to appear. Ames v. State, 191 So.3d 746, 2015 Miss. App. LEXIS 516 (Miss. Ct. App. 2015), cert. denied, 202 So.3d 207, 2016 Miss. LEXIS 214 (Miss. 2016).

Defendant’s right to a speedy trial was not violated because defendant neither alleged prejudice to the defense of the charge against defendant, nor did defendant demonstrate that defendant had suffered anxiety from the charge. Furthermore, the record reflected that the majority of the delay was attributable to defendant as the trial was twice continued due to defense counsel’s illness, and defendant signed both continuance orders, waiving the right to a speedy trial. Jackson v. State, 121 So.3d 313, 2013 Miss. App. LEXIS 571 (Miss. Ct. App. 2013), cert. denied, 139 So.3d 74, 2014 Miss. LEXIS 260 (Miss. 2014).

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, and the prejudice was minimal since the fading memories of potential, unnamed witnesses did not impair defense; 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. 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).

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).

Court found that the delays were for good cause or mainly caused by defendant; although it took approximately two years for a competency examination to be completed, the court could not count that time against the State because defendant requested the examination, plus he also requested a continuance. Ray v. State, 27 So.3d 416, 2009 Miss. App. LEXIS 496 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 61 (Miss. 2010).

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).

Trial court had not erred in denying defendant’s motion to suppress his confession, because any delay was brought about by defendant, and he waived any rights he had by the postponement because he initiated the postponement of the initial hearing by asking to speak to the deputies on his way to the hearing and telling them that he wanted to make a statement. Defendant then signed a Miranda rights waiver. Wilson v. State, 923 So. 2d 1039, 2005 Miss. App. LEXIS 707 (Miss. Ct. App. 2005), cert. denied, 927 So. 2d 750, 2006 Miss. LEXIS 151 (Miss. 2006).

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).

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 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).

Where there was considerably more than 270 days between the date that arraignment was waived and the beginning of trial, there was no violation of the statutory right to a speedy trial where although the trial judge himself may have taken more time to review the records than was absolutely necessary, defendant’s seeking that review and the trial court’s granting it were sufficient reasons to consider that part of the delay to have been the responsibility of defendant himself. Peters v. State, 864 So. 2d 983, 2004 Miss. App. LEXIS 16 (Miss. Ct. App. 2004).

Defendant’s conviction of armed robbery was affirmed where the speedy trial, improper testimony and impeachment, jury instruction, and weight of the evidence issues that she raised on appeal had no merit; defendant’s right to a speedy trial under the U.S. Const. amend. VI and XIV and Miss. Const. Art. 3, § 26 were not violated because the State should not be penalized for additional delays after defendant’s counsel withdrew, her motion to dismiss for failure to provide a speedy trial was not prompt, and she failed to demonstrate that actual prejudice resulted from the delay. Jones v. State, 846 So. 2d 1041, 2002 Miss. App. LEXIS 688 (Miss. Ct. App. 2002), cert. denied, 846 So. 2d 229, 2003 Miss. App. LEXIS 583 (Miss. Ct. App. 2003).

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, 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).

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).

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 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).

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).

47. – – Presumptively prejudicial delay, speedy trial.

No speedy trial violation occurred because defendant failed to show that his defense suffered prejudice due to any lost evidence; defendant had the opportunity to cross-examine an officer and called a detective to testify, he did not demonstrate what the missing police reports or the 911 recording could have shown, and he failed to cite to the name or potential testimony of any allegedly lost witness. Scott v. State, 231 So.3d 1024, 2016 Miss. App. LEXIS 404 (Miss. Ct. App. 2016), aff'd, 231 So.3d 995, 2017 Miss. LEXIS 440 (Miss. 2017).

Defendant was arraigned on August 18, 2005 and his trial finally occurred on February 21, 2008; since the delay exceeded eight months, it was presumptively prejudicial and the cause of the delay had to be analyzed under the remaining factors. Ray v. State, 27 So.3d 416, 2009 Miss. App. LEXIS 496 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 61 (Miss. 2010).

Where 837 days elapsed between the date of appellant’s arrest and the date of trial, appellant’s speedy trial rights were not violated, because although the 837-day delay was presumptively prejudicial, appellant never asserted the right to a speedy trial and appellant made no allegation of prejudice caused by the delay. Brunson v. State, 944 So. 2d 922, 2006 Miss. App. LEXIS 926 (Miss. Ct. App. 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).

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).

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).

Although the length of the delay in defendant’s trial was presumptively prejudicial, after applying a Barker analysis, the appellate court determined that the defendant failed to show actual prejudice caused by the delay in defendant’s actual trial for assault and kidnapping. Russell v. State, 832 So. 2d 551, 2002 Miss. App. LEXIS 251 (Miss. Ct. App.), cert. denied, 832 So. 2d 533, 2002 Miss. App. LEXIS 782 (Miss. Ct. App. 2002).

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).

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 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).

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).

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).

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 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).

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).

48. – – Tolling of time, speedy trial.

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).

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, 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).

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).

49. – – Delay attributable primarily to state, speedy trial.

Defendant’s constitutional right to a speedy trial was not violated by the over two year delay between his indictment and his trial because, although the length and reason for the delay weighed against the State, defendant never demanded a speedy trial until the day before his trial was to begin and he failed to articulate any prejudice. Ford v. State, 281 So.3d 1109, 2019 Miss. App. LEXIS 255 (Miss. Ct. App. 2019).

Where defendant waited six-years to file a motion for post-conviction relief, counsel’s ineffective assistance in pursuing a speedy trial claim was not an exception to the time bar. While the State offered no explanation for 410 days of delay, defendant failed to show actual prejudice. Thomas v. State, 933 So. 2d 995, 2006 Miss. App. LEXIS 80 (Miss. Ct. App.), cert. denied, 933 So. 2d 982, 2006 Miss. LEXIS 372 (Miss. 2006).

Although the State failed to prove good cause for the delay in bringing defendant to trial, he did not suffer prejudice as a result of the delay, and where the record did not reflect that defendant ever asserted his right to a speedy trial, his contention that his case should have been dismissed lacked merit. Burton v. State, 914 So. 2d 288, 2005 Miss. App. LEXIS 768 (Miss. Ct. App. 2005).

Period from defendant’s arraignment to his trial was within the statutorily required 270 days, Miss. Code Ann. §99-17-1, but compliance with the statute did not mean that defendant’s constitutional right to a speedy trial had been respected; however, the State made its requests for continuances because it needed to secure the testimony of an essential witness. Without the witness’s testimony, the State had no evidence showing that the victim was shot, killed, placed in garbage bags, and thrown into a river; because the State requested its continuances for good cause, because the delays were not egregiously protracted, and because defendant failed to show actual prejudice, defendant’s right to a speedy trial was protected. Jackson v. State, 924 So. 2d 531, 2005 Miss. App. LEXIS 451 (Miss. Ct. App. 2005), cert. denied, 927 So. 2d 750, 2006 Miss. LEXIS 175 (Miss. 2006).

Defendant argued that his trial attorney was ineffective in failing to ask the trial court for funds to hire a DNA expert; however, he did not explain what exculpatory evidence might discovered if a DNA expert were hired but merely claimed that a DNA expert favorable to his case should have been hired to counter the testimony of the experts offered by the State. Because defendant did not claim that the outcome of the case would be different if additional DNA experts had testified, his ineffective assistance claim failed. Jackson v. State, 924 So. 2d 531, 2005 Miss. App. LEXIS 451 (Miss. Ct. App. 2005), cert. denied, 927 So. 2d 750, 2006 Miss. LEXIS 175 (Miss. 2006).

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).

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).

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’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 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).

Where the state knows the identity of the accused, has the accused in custody, obtains a confession, and holds the accused in a penitentiary for a period of over eight years, during which time the accused has suffered many disadvantages resulting from the delay, then the delay is vexatious, capricious and oppressive, and the accused has been denied a speedy trial as contemplated by the Constitution. Jones v. State, 250 Miss. 186, 164 So. 2d 799, 1964 Miss. LEXIS 454 (Miss. 1964).

50. – – Delay not attributable to defendant or state.

Under plain error review, defendant’s speedy trial rights were not violated by the 496-day delay in bringing him to trial because, even though the delay was presumptively prejudicial and the record reflected no reason for the delay, no prejudice was apparent from the record. It was unlikely that defendant was prejudiced by the absence of his accessory, as it was substantially unlikely that the accessory would have testified that he, rather than defendant, was the shooter. Muise v. State, 997 So. 2d 248, 2008 Miss. App. LEXIS 788 (Miss. Ct. App. 2008).

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 conviction for murder was proper where his speedy trial right was not violated because the State’s motions for continuances were predicated on the fact that DNA testing had not been completed. Additionally, he failed to prove any prejudice. Wright v. State, 915 So. 2d 527, 2005 Miss. App. LEXIS 976 (Miss. Ct. App. 2005).

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 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).

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).

Trial court did not err in denying defendant’s motion to dismiss for violation of his speedy trial right where he was incarcerated for a presumptively prejudicial nine months from his arrest to his trial, State made mistake in original indictment, the county had only two terms of court each year, his incarceration was due to a different charge, and his witnesses were still available at time of trial. Hicks v. State, 812 So. 2d 179, 2002 Miss. LEXIS 34 (Miss. 2002).

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).

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’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).

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).

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).

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).

51. – – 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).

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).

52. – – Reindictment, speedy trial.

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).

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).

53. – – Guilty plea, speedy trial.

Defendant was procedurally barred from raising the argument that defendant was denied the right to a speedy trial because, at the plea hearing, the circuit judge informed defendant that defendant was waiving the right to a speedy and public trial, and defendant indicated that defendant understood. Furthermore, defendant signed three orders resetting the cause for trial, and each order stated that defendant waived the right to a speedy trial. Avery v. State, 95 So.3d 765, 2012 Miss. App. LEXIS 507 (Miss. Ct. App. 2012), cert. denied, 109 So.3d 567, 2013 Miss. LEXIS 122 (Miss. 2013).

Defendant failed to show a violation of his right to a speedy trial, because defendant waived his right to a trial when he pled guilty. Trice v. State, 992 So. 2d 638, 2007 Miss. App. LEXIS 841 (Miss. Ct. App. 2007), cert. denied, 997 So. 2d 924, 2008 Miss. LEXIS 538 (Miss. 2008).

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 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 he 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).

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).

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 4 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 (Miss. 1989), A.L.R. 4th 3333 .

54. – – Plea negotiations, speedy trial.

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 he 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).

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).

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).

55. – – Burden of proof, speedy trial.

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).

56. – – Sufficiency of evidence, speedy trial.

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).

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).

The trial court erred in finding that the death of an alleged witness had caused prejudice where the sole evidence on this point consisted of the assertions of the defendant and his attorney, and those assertions did not qualify as credible evidence. State v. Woodall, 801 So. 2d 678, 2001 Miss. LEXIS 310 (Miss. 2001).

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’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 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).

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 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’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 approximately 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 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 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).

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 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).

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).

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).

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 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 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 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).

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).

57. – – Retrial, speedy trial.

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 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 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).

58. – – Waiver, 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, — So.3d —, 2017 Miss. LEXIS 525 (Miss. 2017), cert. denied, 229 So.3d 123, 2017 Miss. LEXIS 493 (Miss. 2017).

Defendant waived his speedy trial claim, even though he made a written motion to dismiss on speedy trial grounds, because he never brought that motion for a hearing and he never obtained specific findings from the trial court. Muise v. State, 997 So. 2d 248, 2008 Miss. App. LEXIS 788 (Miss. Ct. App. 2008).

Motion for post-conviction relief was properly denied because appellant inmate’s guilty plea to manslaughter under Miss. Unif. Cir. & County Ct. Prac. R. 8.04 was voluntary in nature where he testified that he was guilty, he was satisfied with his attorney, and that he understood the charges against him. Moreover, the entry of a voluntary plea waived speedy trial and confession-related issues. Pool v. Pool, 989 So. 2d 920, 2008 Miss. App. LEXIS 33 (Miss. Ct. App.), cert. denied, 993 So. 2d 832, 2008 Miss. LEXIS 383 (Miss. 2008).

Where defendant had already filed one post-conviction relief motion raising the same issues, a successive writ was barred under Miss. Code Ann. §99-39-23(6); at any rate, his guilty plea waived any speedy trial issue, and defendant was not allowed to recast the issue under the guise of ineffective assistance of counsel. Myers v. State, 976 So. 2d 917, 2007 Miss. App. LEXIS 437 (Miss. Ct. App. 2007), cert. denied, 977 So. 2d 343, 2008 Miss. LEXIS 112 (Miss. 2008).

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).

Motion for post-conviction relief was denied in a case where defendant’s suspended sentence for statutory rape was revoked because he waived issues relating to a speedy trial and defects in an evidence sample due to a guilty plea, there was no evidence that an indictment was manufactured, and the revocation of the suspended sentence was permitted under Miss. Code Ann. §47-7-34 and Miss. Code Ann. §47-7-37 where defendant had already served a portion of a five-year sentence after the guilty plea was entered. Davis v. State, 954 So. 2d 530, 2007 Miss. App. LEXIS 259 (Miss. Ct. App. 2007).

Inmate’s petition for post-conviction relief 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).

59. Fair trial – In general.

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).

Defendant failed to show that the State violated his due-process rights by losing or destroying evidence with an apparent exculpatory value where the investigators had not been able to obtain a copy of the video that was clear or helpful, a detective possessed only an unreadable copy of the video on her jump drive, and the detective attempted to obtain the surveillance video in a readable format, but after several unsuccessful attempts, she learned that the business’s equipment had recorded over the old footage. Tillis v. State, 176 So.3d 37, 2014 Miss. App. LEXIS 446 (Miss. Ct. App. 2014), cert. denied, 178 So.3d 333, 2015 Miss. LEXIS 528 (Miss. 2015).

The state asked the victim’s daughter what impact her mother’s death had on her family’s life, to which she replied that it was really horrible, it was on the family’s mind all the time, she thought about her mother every birthday and Mother’s Day, her five-year-old did not have a grandmother, and that 23 years was a long time to go through that; the daughter’s testimony was not designed to incite the jury, but described the impact that losing her mother had on her family, and thus the trial court did not err in denying defendant’s motion for a mistrial, which did not violate his due process rights. 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).

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).

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 had 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).

Appellate court could not find any reversible error in defendant’s trial for tax evasion, as such, defendant’s claim that the cumulative errors in the trial deprived in of a fair trial lacked merit. 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).

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 did not receive a fair trial because the prosecution was 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).

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).

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).

Defendant was not denied a fair trial due to the presence of security at trial, because, although a witness was scared by the presence of many armed guards, she did not say that she testified any differently because of the presence of the guards. Russell v. State, 849 So. 2d 95, 2003 Miss. LEXIS 297 (Miss. 2003).

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).

As applied to criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice and in order to declare a denial of it court must find that absence of that fairness fatally infected the trial. Brooks v. State, 209 Miss. 150, 46 So. 2d 94, 1950 Miss. LEXIS 373 (Miss. 1950).

Where fundamental and constitutional rights are ignored, due process does not exist, and a fair trial in contemplation of law cannot be had. Brooks v. State, 209 Miss. 150, 46 So. 2d 94, 1950 Miss. LEXIS 373 (Miss. 1950).

In addition to the right to be tried by fair, unprejudiced individual jurors, guided by the evidence the right to fair 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).

Every man is entitled to fair and impartial trial by jury uninfluenced by anything except competent evidence and all reasonable doubts should be resolved in favor of accused. Outlaw v. State, 208 Miss. 13, 43 So. 2d 661, 1949 Miss. LEXIS 402 (Miss. 1949).

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).

A fair and impartial trial guaranteed by this section includes a reasonable opportunity to prepare for trial. Cruthirds v. State, 190 Miss. 892, 2 So. 2d 145, 1941 Miss. LEXIS 105 (Miss. 1941).

The section primarily relates to trials of the guilt or innocence of the accused. Whether it relates to hearing of applications for continuances, quaere? Lipscomb v. State, 76 Miss. 223, 25 So. 158, 1898 Miss. LEXIS 130 (Miss. 1898).

60. – – Juveniles, fair trial.

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).

61. – – Indigent defendants, fair trial.

A trial court’s failure to provide an indigent criminal defendant with a transcript of the defendant’s first trial which resulted in a mistrial denied the defendant the right to a fair trial, and therefore was reversible error. Fielder v. State, 569 So. 2d 1170, 1990 Miss. LEXIS 629 (Miss. 1990).

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).

62. – – Publicity, fair trial.

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).

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).

63. – – Identification of accused, fair trial.

As to an in-court identification in a capital murder and aggravated assault case, due process was satisfied since the factors under Neil v. Biggers, 409 U.S. 188, 196, 34 L. Ed. 2d 401 (1972), were all established; the surviving victim had an opportunity to view defendant as she was pleading for her life, and she was certain of the identification due to the fact that she had known defendant for 15 years, went to school with him, and lived close to him. Sanders v. State, 939 So. 2d 842, 2006 Miss. App. LEXIS 740 (Miss. Ct. App. 2006).

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, where it was a consequence of his own voluntary act. McCoy v. State, 881 So. 2d 312, 2004 Miss. App. LEXIS 864 (Miss. Ct. App. 2004).

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, but 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).

In-court identifications by the eyewitnesses were not impermissibly tainted by the pre-trial identification procedure as the evidence included defendant’s statement to the police, a videotape that recorded the robbery, and the testimony of the witnesses to the crime. 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).

In a capital murder case, the trial court did not err in denying defendant’s motion to suppress the lineup as it was proper and not tainted or suggestive. When the lineup was considered in light of the Biggers factors, it was evident that the eyewitness’s view of the shooter was brief but he was paying very close attention once he realized that a shooting had taken place, he accurately described defendant, he was absolutely certain of defendant’s identity when he saw him in the lineup, and the lineup took place a little over 24 hours after the shooting. 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).

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, where 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).

64. – – Mental competence of defendant, fair trial.

The trial of a defendant, when his mind is so clouded that he cannot remember and intelligently relate what occurred at the time of the commission of the alleged offense, is a denial of due process and contrary to public policy, and when it appears to the trial court that there is a probability that defendant is incapable of making a rational defense, the trial should not proceed until defendant’s mental condition has been investigated and it appears he is sufficiently rational to make a defense. Williams v. State, 205 Miss. 515, 39 So. 2d 3, 1949 Miss. LEXIS 448 (Miss. 1949).

65. – – Plea bargaining, fair trial.

Post-conviction relief was properly denied in a burglary case because the trial court did not clearly err in denying appellant’s request for specific performance of an alleged oral plea agreement, as appellant did not argue that he promised any additional servitude to the prosecution that he detrimentally relied upon, the record did not mention any agreement to only sentence appellant to 10 years in prison, and the circuit court had the discretion to reject any suggestion in sentencing that the prosecution presented. Christie v. State, 915 So. 2d 1073, 2005 Miss. App. LEXIS 852 (Miss. Ct. App. 2005).

Where defendant rejected a plea bargain that had offered a more lenient sentence for the sale of cocaine, and upon conviction at trial was sentenced to a greater sentence of 30 years in the custody of the Mississippi Department of Corrections, with the last 15 years suspended under prescribed conditions, there was no constitutional violation where the trial court had stayed aloof from the plea bargaining process and based its decision on a pre-sentence report, and where defendant’s sentence was within the statutory guidelines. Rogers v. State, 891 So. 2d 268, 2004 Miss. App. LEXIS 1041 (Miss. Ct. App. 2004).

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).

Trial court’s imposition of 10 year prison sentence and a $10,000 fine on a defendant convicted of conspiracy to sell cocaine, who contended that he had had an opportunity to plead guilty to the charge for which he was convicted, and in return receive a recommendation for a 3 year sentence with no fine, was not a proscribed enhancement of sentence because defendant exercised his right to a jury trial where the record reflected that the trial judge, who was unaware of the guilty plea negotiation remained circumspect and unbiased. Temple v. State, 498 So. 2d 379, 1986 Miss. LEXIS 2834 (Miss. 1986).

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).

66. – – Conduct of trial, fair trial.

Circuit court erred by excluding a portion of the testimony of defendant’s only witness, based on a discovery violation, because there was no evidence that defendant’s late disclosure of the witness was motivated by a desire to obtain a tactical advantage at trial. Furthermore, reversal and remand for a new trial was required because defendant was prejudiced by the circuit court’s improper exclusion of the testimony. Willard v. State, 219 So.3d 569, 2017 Miss. App. LEXIS 262 (Miss. Ct. App. 2017).

Defendant was not denied a fair trial by the trial judge initially leaving defendant in restraints and then removing the restraints because there was no evidence that defendant was prejudiced by temporarily appearing before the jury in restraints, especially in light of the judge’s instructions to the jury that the restraints were immaterial to the charges before them. Jones v. State, 130 So.3d 519, 2013 Miss. App. LEXIS 199 (Miss. Ct. App. 2013), cert. denied, 131 So.3d 577, 2014 Miss. LEXIS 65 (Miss. 2014).

Defendant’s failure to contemporaneously object to the admission of bad act evidence at trial, as required by Miss. R. Evid. 103, effectively waived the issue on appeal, and in light of governing case law, the court did not find that the State’s attempted introduction of the evidence substantially affected defendant’s right to a fair trial when defendant failed to object. Butler v. State, 16 So.3d 751, 2009 Miss. App. LEXIS 485 (Miss. Ct. App. 2009).

Although defendant asked the court to apply the plain error doctrine, the court did not find that the State’s line of questioning as to what prior convictions defendant had substantially affected his right to a fair trial when he openly admitted that he had a record of multiple convictions. Butler v. State, 16 So.3d 751, 2009 Miss. App. LEXIS 485 (Miss. Ct. App. 2009).

Defendant’s confession as to a possession of cocaine count did not materially prejudice his right to a fair trial on a sale or transfer of cocaine count because a jury was instructed to consider each count separately and substantial evidence supported defendant’s conviction on the sale count. Armstead v. State, 978 So. 2d 642, 2008 Miss. LEXIS 169 (Miss. 2008).

Defendant was denied the right to a fundamentally fair trial because defendant was entitled to have the jury determine whether someone else committed the capital murder in that the only direct evidence that defendant was involved was his sister’s allegations that defendant killed her husband and defendant’s disputed confession; further, defendant had no motive other than to please his sister, and the sister had the means, the motive, and the opportunity to kill her husband, and the trial court’s exclusion of evidence clearly prejudiced defendant’s right to a fair trial. 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).

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’s right to a fair trial was not violated by introducing evidence of prior DUI convictions during the guilt phase of a trial because they were an element of the crime of DUI third offense; the state was required to prove all the essential elements of the crime charged. Smith v. State, 950 So. 2d 1056, 2007 Miss. App. LEXIS 111 (Miss. Ct. App. 2007).

Supreme Court of Mississippi reversed defendant’s conviction for murder and granted him a new trial; the circuit court denied defendant a fair trial by allowing the victim’s wife to invoke the Fifth Amendment, admitting unreliable expert testimony, and denying defendant’s right to present evidence concerning the victim’s tumultous relationship with his wife to show her motive to kill the victim. 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).

Defendant was not entitled to reversal of his conviction for fondling a child in violation of Miss. Code Ann. §97-5-23 because, inter alia: (1) the evidence was sufficient to enable a reasonable juror to find defendant guilty beyond a reasonable doubt, (2) the trial court did not improperly limit cross-examination of the victim in violation of defendant’s rights under USCS Const. Amend. 6 and Miss. Const. Art. III, § 26, because testimony concerning the victim’s past sexual behavior was properly excluded under Miss. R. Evid. 412; (3) since defendant failed to object at trial to the qualification of an expert witness under Miss. R. Evid. 702, the issue was waived; and (4) under Miss. R. Evid. 615(3), the expert witness was properly allowed to remain in the court room so that she could base her opinion on facts learned at the trial pursuant to Miss. R. Evid. 703. Aguilar v. State, 955 So. 2d 386, 2006 Miss. App. LEXIS 903 (Miss. Ct. App. 2006).

Where defendant was charged with aggravated assault, an eyewitness to the shooting was permitted to testify that the declarant said that defendant had a gun, and then jumped out of the car and ran for shelter; the hearsay statement was both an excited utterance and a present sense impression, and defendant’s right to a fair trial was not violated by the admission of the statement. Wheeler v. State, 943 So. 2d 106, 2006 Miss. App. LEXIS 866 (Miss. Ct. App. 2006).

In a case involving capital murder and aggravated assault, defendant was not deprived of a fair trial since the trial court did not abuse its discretion by allowing the prosecutor to ask leading questions; moreover, there was nothing to substantiate defendant’s claims of judicial or prosecutorial misconduct. Sanders v. State, 939 So. 2d 842, 2006 Miss. App. LEXIS 740 (Miss. Ct. App. 2006).

In a case involving capital murder and aggravated assault, defendant was not deprived of a fair trial based on the introduction of several crime scene photographs since they had evidentiary value due to the fact that they clarified the testimony of witnesses, gave the jury a visual depiction of the crime scene, and showed the cause of the victims’ deaths. Sanders v. State, 939 So. 2d 842, 2006 Miss. App. LEXIS 740 (Miss. Ct. App. 2006).

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).

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).

67. – – Expert witnesses, fair trial.

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).

In an aggravated assault case, an orthopedic surgeon should have been qualified as an expert witness under Miss. R. Evid. 702 and not been allowed to give a lay opinion under Miss. R. Evid. 701 because he was acting in his professional capacity when he testified that a broken bone was caused by high-energy force. However, the error was harmless because it did not deny a substantial right or render the trial fundamentally unfair; photographs of the injuries suffered by defendant’s girlfriend were shown, and the girlfriend testified that defendant forced her out of the car, threw her down, kicked her, and stomped on her back. O'Neal v. State, 977 So. 2d 1252, 2008 Miss. App. LEXIS 177 (Miss. Ct. App. 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).

In a capital murder case, the trial court’s refusal to grant defendant’s motion for funds to obtain expert assistance was properly denied and did not constitute a violation of his due process rights because: (1) on cross-examination, a doctor’s testimony rebutted the state’s argument that the victim could have retained consciousness for 10-20 minutes as the doctor stated that she might have been unconscious within 30 seconds after manual strangulation or might never have regained consciousness after the blow to the back of her head; and (2) a second doctor’s affidavit, stating that the state’s investigation of the crime scene and the examination of the victim were problematic, presented nothing in the form of concrete reasons that an independent expert would benefit defendant. 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’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).

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 present mitigating circumstances to the jury was properly denied and did not constitute a violation of his due process rights because he did not show a substantial need for assistance because a review of the record revealed that the jury was presented with mitigating evidence covering all the relevant mitigating factors that defendant sought to show at trial. 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).

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).

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; moreover, even if it was not, it was not reasonably likely that the statements affected the judgment of the jury, even if they were false, because ample evidence was presented regarding the expert’s credibility or lack thereof. 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).

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 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).

68. – – Arguments of counsel, fair trial.

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).

Prosecutor’s statement that the victim had been punished enough and it was up to the jury was not so inflammatory that the trial court judge should have objected on his own, and defendant’s claims that the arguments were meant to inflame the jury were procedurally barred because defendant made no timely objections to the statements. Davis v. State, 992 So. 2d 1190, 2008 Miss. App. LEXIS 142 (Miss. Ct. App.), cert. denied, 997 So. 2d 924, 2008 Miss. LEXIS 529 (Miss. 2008).

Defendant complained that the prosecutor’s comments during closing arguments violated the Fifth Amendment and Miss. Const. Art. 3, § 26, but the court found that the statement was not a comment on defendant’s right not to testify against himself; the statement did not lead the jury to infer anything about the reasons why defendant did not testify at trial and thus the statement did not rise to the level of serious dimension that would have allowed defendant to overcome the procedural bar, and because defendant did not object, he waived this issue. Davis v. State, 992 So. 2d 1190, 2008 Miss. App. LEXIS 142 (Miss. Ct. App.), cert. denied, 997 So. 2d 924, 2008 Miss. LEXIS 529 (Miss. 2008).

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).

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).

Defendant argued that the prosecution’s attack on defense counsel implied that he presented a deceptive argument to the jury and violated defendant’s due process rights by denying him the right to a fair and impartial trial; although Miss. Unif. Cir. & County Ct. Prac. R. 3.02 prohibited attorneys from attacking the opposing attorney during closing arguments, because the trial court sustained defendant’s objection to the prosecutor’s first statement, the error, if any, was cured or harmless beyond a reasonable doubt. Baker v. State, 930 So. 2d 399, 2005 Miss. App. LEXIS 447 (Miss. Ct. App. 2005), cert. denied, 933 So. 2d 303, 2006 Miss. LEXIS 497 (Miss. 2006).

Prosecutor’s statement during closing argument that defense counsel hadn’t spent any time on trying to support defendant’s story about what happened was not improper. Green v. State, 887 So. 2d 840, 2004 Miss. App. LEXIS 931 (Miss. Ct. App. 2004).

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).

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).

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).

69. – – Instructions to jury, fair trial.

In a murder case, defendant’s right to a fair trial was not violated when the jury was not instructed on manslaughter under Miss. Code Ann. §97-3-47 because there was nothing to support a claim that a shooting was accidental where defendant pointed a gun at the victim and shot her from four feet away; moreover, the evidence indicated that defendant acted with malice where defendant and the victim were arguing so much that the victim’s daughter was praying for her life prior to the shooting. Page v. State, 989 So. 2d 887, 2007 Miss. App. LEXIS 551 (Miss. Ct. App. 2007), cert. denied, 993 So. 2d 832, 2008 Miss. LEXIS 439 (Miss. 2008).

Defendant’s right to a fair trial was not violated by a jury instruction given in a capital murder case because it was not required to include a finding on deliberate design since there was no intent to kill required when a person was slain in the course of a robbery. Ramsey v. State, 959 So. 2d 15, 2006 Miss. App. LEXIS 764 (Miss. Ct. App. 2006), cert. denied, 958 So. 2d 1232, 2007 Miss. LEXIS 588 (Miss. 2007).

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).

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).

70. – – Quotient verdict, fair trial.

Where evidence 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 inference on the jury prejudicial to the 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).

71. – – Disparity in sentences, fair trial.

Disparity between defendant’s 45 year sentence, imposed after trial and conviction of armed robbery, and the 25 year term imposed upon a triggerman, who had pled guilty to the same robbery, required remanding of case for sentencing hearing to enable circuit judge to state for the record appropriate reasons for the disparity in the two sentences. McGilvery v. State, 497 So. 2d 67, 1986 Miss. LEXIS 3104 (Miss. 1986).

It is absolutely impermissible for trial judge to impose heavier sentence based in whole or in part upon defendant’s exercise of constitutionally protected right to trial by jury; however, where record reveals without doubt that sentence is based solely upon defendant’s prior convictions or presentencing report, appellate court will not disturb trial court’s discretion in sentencing notwithstanding intemperate comments by trial judge indicating displeasure with defendant’s exercise of right to trial by jury. Gillum v. State, 468 So. 2d 856, 1985 Miss. LEXIS 2036 (Miss. 1985).

72. – – Jury trial.

Circuit court was not partial in dismissing members of the venire because the undisputed record evidence established that defendant did not object either to the dismissal of Juror 26 or to the circuit court’s statement that the parties agreed to her dismissal; as to his other arguments related to the makeup of the venire, defendant never objected to the potential jurors who remained on the venire; and each potential juror affirmed that he or she could remain fair and impartial if selected for defendant’s trial. Mack v. State, 237 So.3d 778, 2017 Miss. App. LEXIS 334 (Miss. Ct. App. 2017), cert. denied, 237 So.3d 1270, 2018 Miss. LEXIS 90 (Miss. 2018).

Inmate’s right to present issues to a jury expired when he pleaded guilty to the charges. Gaddy v. State, 21 So.3d 677, 2009 Miss. App. LEXIS 236 (Miss. Ct. App. 2009), cert. denied, 559 U.S. 1078, 130 S. Ct. 2115, 176 L. Ed. 2d 741, 2010 U.S. LEXIS 3422 (U.S. 2010).

Because the offense of stalking under Miss. Code Ann. §97-3-107(1) (Rev. 2006), with which defendant was being charged, was punishable by up to one year in jail, defendant had a right to a jury trial, a circuit court had no discretion to deny him that right and the circuit court erred in refusing defendant’s request for a jury trial. Ude v. State, 992 So. 2d 1213, 2008 Miss. App. LEXIS 387 (Miss. Ct. App. 2008).

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).

Although criminal defendants in Mississippi generally have no right to be sentenced by the jury, where a specific statute provides such a guarantee, such as §99-19-101, which requires that the jury perform the weighing of aggravating and mitigating factors, Article 3, §§ 14 and 26 of the Mississippi Constitution operate together to elevate the statutory right to one of constitutional significance which the Supreme Court of Mississippi cannot abridge by applying harmless error analysis, whether by disregarding entirely the invalid circumstance or by applying a limiting construction; thus, a murder defendant’s motion for leave to file a post-conviction petition would be granted where the defendant sought relief based on the jury’s reliance on an invalid aggravating circumstance, and the case would be remanded to the circuit court for new sentencing hearings. Wilcher v. State, 635 So. 2d 789, 1993 Miss. LEXIS 447 (Miss. 1993).

In determining whether a person cited for contempt has the right to a jury trial, which determination must be based on whether the contempt is to be treated as a serious or a petty offense, the court must look to the maximum sentence which could be imposed under the statute if a maximum penalty has been set, and if no maximum penalty has been set, the court should look to the penalty actually imposed as the best evidence of the seriousness of the offense. McGowan v. State, 258 So. 2d 801, 1972 Miss. LEXIS 1516 (Miss.), cert. denied, 409 U.S. 1006, 93 S. Ct. 430, 34 L. Ed. 2d 298, 1972 U.S. LEXIS 632 (U.S. 1972).

A defendant who, in a trial without a jury was found guilty of contempt for violating an injunction prohibiting him from conducting the unlawful business of keeping and selling intoxicating liquor on certain premises, and was sentenced to 5 months imprisonment and a fine of $750, was not entitled to a jury trial, but was entitled to have his fine reduced to $500. McGowan v. State, 258 So. 2d 801, 1972 Miss. LEXIS 1516 (Miss.), cert. denied, 409 U.S. 1006, 93 S. Ct. 430, 34 L. Ed. 2d 298, 1972 U.S. LEXIS 632 (U.S. 1972).

It was error to deny an accused, who took the stand in his own defense, permission to present his version of the circumstances surrounding the taking of his alleged confession, even though the court had, in a preliminary hearing out of the presence of the jury, determined that the confession was admissible, the accused having the right to have the jury pass upon the factual issues as to the truth and the voluntariness of the confession, and upon the credibility of witnesses thereto and the weight to be given their testimony. Anderson v. State, 241 So. 2d 677, 1970 Miss. LEXIS 1362 (Miss. 1970).

Where a defendant, found to have committed constructive contempt, was sentenced to six months confinement, and to pay a $500 fine, the offense of which he was convicted was petty, and the court did not commit error in refusing to grant the defendant a trial by jury. Hinton v. State, 222 So. 2d 690, 1969 Miss. LEXIS 1551 (Miss. 1969).

In a prosecution for rape, the trial court did not err in accepting accused’s plea of guilty and fixing his punishment at life imprisonment without impaneling a jury, and no constitutional right of the accused was violated thereby. Bullock v. Harpole, 233 Miss. 486, 102 So. 2d 687, 1958 Miss. LEXIS 406 (Miss. 1958).

73. Impartial jury – In general.

Trial court’s instruction that Juror Number 1 act as foreperson did not amount to plain error, as two witnesses testified that defendant was the shooter and thus, the weight of the evidence was overwhelming. Hall v. State, 201 So.3d 424, 2016 Miss. LEXIS 540 (Miss. 2016).

Defendant made no assertion that his Sixth Amendment right to an impartial jury was violated due to the jury-selection process because he did not claim the jury was composed of incompetent jurors; defendant failed to show how the departure from that statute and rules regarding peremptory challenges affected his fundamental, substantive rights or otherwise led to a manifest miscarriage of justice. Carr v. State, 190 So.3d 1, 2015 Miss. App. LEXIS 605 (Miss. Ct. App. 2015).

Misallocation of defendant’s peremptory challenges did not affect a fundamental, substantive right because so long as the jury that sat was impartial, the fact that defendant had to pool his regular and alternate peremptory challenges to achieve that result did not mean his Sixth Amendment rights were violated; despite being selected in an irregular manner, the jury was a legal jury with the authority to render a verdict against defendant. Carr v. State, 190 So.3d 1, 2015 Miss. App. LEXIS 605 (Miss. Ct. App. 2015).

Defendant’s right to a fair and impartial jury was not violated by an alleged relationship between one juror and a witness for the State because none of the facts asserted by defendant with regard to the relations between the juror and the police officer, who was the witness, could be found in or supported by the record. Hill v. State, 4 So.3d 1063, 2009 Miss. App. LEXIS 14 (Miss. Ct. App. 2009).

In a capital murder case, the inmate alleged that a deputy made improper comments to the jury amounting to unauthorized communications with jurors, which 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 were made in reference to the inmate’s case, the statement did not show prejudice to 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 a capital murder case, the unsworn statements of one juror showing that the juror was predisposed to voting for death without weighing mitigating factors was countered with an affidavit from the juror that the juror 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 lied about her views on mitigating evidence, that the juror was unwilling to consider mitigating factors, or that she had a predisposition to the death penalty that she did not disclose during voir dire; thus, the inmate’s claim that the two jurors were predisposed to 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 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 right to a trial by a fair and impartial jury is guaranteed by Mississippi Constitution Article III, § 14, § 26, and § 31. Hudson v. Taleff, 546 So. 2d 359, 1989 Miss. LEXIS 299 (Miss. 1989).

The right to a trial by an impartial jury is guaranteed in all prosecutions by the federal constitution and the state constitution. Adams v. State, 220 Miss. 812, 72 So. 2d 211, 1954 Miss. LEXIS 500 (Miss. 1954).

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).

The defendant has the right to a fair and impartial jury to try his case. Ferriday v. Selser, 5 Miss. 506, 1840 Miss. LEXIS 41 (Miss. 1840).

74. – – Validity of statutes, impartial jury.

Hines v. Lockhart, 105 So. 449 (Miss. 1925).

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).

The right of a defendant, under the section, to an “impartial jury” is not infringed by the statute (Code 1906, § 2685), which provides that “any person, otherwise competent, who will make oath that he is impartial in the case, shall be competent as a juror in any criminal case, notwithstanding the fact that he has an impression or an opinion as to the guilt or innocence of the accused, if it appear to the satisfaction of the court that he has no bias or feeling or prejudice in the case, and no desire to reach any result in it, except that to which the evidence may conduct; but any juror shall be excluded if the court be of opinion that he cannot try the case impartially, etc.” Green v. State, 72 Miss. 522, 17 So. 381, 1895 Miss. LEXIS 16 (Miss. 1895).

The legislature cannot encroach upon the qualification of jurors so as to endanger their impartiality. Logan v. State, 50 Miss. 269, 1874 Miss. LEXIS 55 (Miss. 1874).

75. – – Venire, impartial jury.

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).

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).

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).

Archer v. State, 140 Miss. 597, 105 So. 747, 1925 Miss. LEXIS 295 (Miss. 1925).

76. – – Persons disqualified from jury duty, impartial jury.

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).

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 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).

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).

Normally person engaged in law enforcement, or related by blood or marriage to one engaged in law enforcement, is not per se excluded from jury service in criminal case; however, in highly unusual fact situation in which 12 of 39 veniremen considered by court and not excused for cause are either police officers or related by blood or marriage to current or former police officers, and in which uniformed officer serves as foreman, defendant is denied trial by impartial jury. Mhoon v. State, 464 So. 2d 77, 1985 Miss. LEXIS 1904 (Miss. 1985), limited, Dotson v. Mississippi (Miss. Ct. App. 1996).

Donahue v. State, 142 Miss. 20, 107 So. 15, 1926 Miss. LEXIS 55 (Miss. 1926).

77. – – Disabled jurors, impartial jury.

In a criminal prosecution, having a deaf person on a jury would constitute a denial of the accused’s rights to due process of law and to a trial before a fair and impartial jury. Weaver v. State, 497 So. 2d 1089, 1986 Miss. LEXIS 2660 (Miss. 1986).

State v. Chambliss, 142 Miss. 256, 107 So. 200 (1926), citing, McHenry v. State, 91 Miss. 562, 44 So. 831, 1907 Miss. LEXIS 155 (Miss. 1907).

78. – – Disqualification for cause, impartial jury.

Where a juror in a sexual battery case admitted that she knew many of the witnesses who were going to be called to testify, the trial court did not abuse its discretion under Miss. Const. Art. 3, § 26 by failing to dismiss the juror for cause. The juror did not have a close personal relationship with the witnesses, but only knew them as members of the community; the juror confirmed that she could be fair and impartial. Smith v. State, 989 So. 2d 973, 2008 Miss. App. LEXIS 255 (Miss. Ct. App. 2008).

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 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).

79. – – Pre-trial publicity, impartial jury.

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).

80. – – Voir dire, impartial jury.

Trial court did not err when it allowed the State to ask jurors if they could convict a thug for shooting a thug during voir dire because although Miss. Unif. Cir. & County Ct. Prac. R. 3.05 prohibited the posing of hypothetical questions to the venire panel during voir dire that required a juror to pledge a particular verdict, the State asked a hypothetical question about thugs and did not specifically request a verdict during voir dire. Anderson v. State, 1 So.3d 905, 2008 Miss. App. LEXIS 543 (Miss. Ct. App. 2008), cert. denied, 999 So. 2d 1280, 2009 Miss. LEXIS 15 (Miss. 2009).

Defendant was not denied an impartial jury by alleged inaccurate responses during voir dire where the juror at issue was asked if he had ever worked as an employee of a law enforcement office agency, whether it was state, federal, prison, jail system, or some kind of correctional institute, because the dispute over whether the juror worked as a guard was irrelevant, as he worked in some capacity, and that was all the question asked. Russell v. State, 849 So. 2d 95, 2003 Miss. LEXIS 297 (Miss. 2003).

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).

One is not an impartial juror within this section who, on his voir dire, conceals facts which make him incompetent; such incompetency exists when a juror heard facts from a witness whom he believed, inducing a fixed opinion. Dulion v. Harkness, 80 Miss. 8, 31 So. 416, 1902 Miss. LEXIS 216 (Miss. 1902).

81. – – Capital punishment, 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).

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).

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).

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).

82. – – Racial discrimination in jury selection, impartial jury.

Use of the word “shall” in Miss. Code Ann. §99-17-3 and Miss. Unif. Cir. & County Ct. Prac. R. 10.01 implies that the trial court has no discretion in the number of peremptory strikes given to each side; therefore, a trial court did not err by refusing to allow defendant additional peremptory strikes under §99-17-3 and Rule 10.01 after five were denied due to an improper attempt to exclude Caucasian males from the jury in a statutory rape and sexual battery case. Jones v. State, 951 So. 2d 568, 2006 Miss. App. LEXIS 621 (Miss. Ct. App. 2006), cert. dismissed, 220 So.3d 979, 2017 Miss. LEXIS 259 (Miss. 2017).

Defendant used his first five peremptory strikes against white jurors, thereby giving rise to a reasonable inference of purposeful discrimination, although defendant offered a race-neutral reason for striking the juror at issue, asserting that he was 77 years old and knew a witness. However, defendant also struck a second white juror on the basis he was close in age to the 37 year-old victim, while leaving a black juror on the jury who was in that age range; given the fact that one of the reasons for striking the elderly juror (he simply knew who the State witness was), was clearly shown to be pretextural, and the other reason, age, was also found to be pretextual in the case of the second white juror, in light of the deference given to trial judges’ factual findings in Batson challenges, the appellate court was not willing to find that the trial court erred in finding that age, though being a race-neutral reason, was also pretextural as to the elderly juror. Williams v. State, 909 So. 2d 1233, 2005 Miss. App. LEXIS 89 (Miss. Ct. App. 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 that it did not exercise, which would indicate that the State did not attempt to exclude jurors on a racial basis. Because defendant failed to establish a prima facie case that the State had 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 used his first five peremptory strikes against white jurors, thereby giving rise to a reasonable inference of purposeful discrimination, although defendant offered a race-neutral reason for striking the juror at issue, asserting that he was 77 years old and knew a witness. However, defendant also struck a second white juror on the basis that he was close in age to the 37-year-old victim, while leaving a black juror on the jury who was in that age range; given the fact that one of the reasons for striking the elderly juror (he simply knew who the State witness was), was clearly shown to be pretextual, and the other reason, age, was also found to be pretextual in the case of the second white juror, in light of the deference given to trial judges’ factual findings in Batson challenges, the appellate court was not willing to find that the trial court erred in finding that age, though being a race-neutral reason, was also pretextual as to the elderly juror. Williams v. State, 909 So. 2d 1233, 2005 Miss. App. LEXIS 89 (Miss. Ct. App. 2005).

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).

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, Inc., 662 So. 2d 552 (Miss. 1995), reh’g denied.

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 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).

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).

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).

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).

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).

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).

83. – – Race-neutral selection of jury, impartial jury.

Trial court did not err when it allowed the State to use peremptory strikes on five African American venire members and denied defendant’s Batson challenges because the State provided a racially neutral reason for the challenged strike and defendant failed to rebut the State’s explanations. Defendant was charged with possession of cocaine and three of the potential jurors that were removed by the State’s challenges were involved with drugs, one had problems with the prosecutor, and one had voted not guilty in another strong case. Watson v. State, 991 So. 2d 662, 2008 Miss. App. LEXIS 593 (Miss. Ct. App. 2008).

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).

In a capital murder case, there was no violation of Batson based on the striking of African-American jurors because the prosecution gave race-neutral reasons, which included inattention, failure to render a death sentence in a prior case, residence in a high crime area, and employment as a counselor at a mental health facility. White v. State, 964 So. 2d 1181, 2007 Miss. App. LEXIS 576 (Miss. Ct. App. 2007).

If exercising ten of 11 peremptory challenges against African-American members of a venire did not suffice as a prima facie case of purposeful discrimination when one-third of the panel was African-American, then it was difficult to imagine what would; therefore, in a robbery case, the state should have been ordered to provide race-neutral reasons for its use of peremptory challenges because a prima facie case was shown by defendant. Scott v. State, 981 So. 2d 979, 2007 Miss. App. LEXIS 419 (Miss. Ct. App. 2007), rev'd, 981 So. 2d 964, 2008 Miss. LEXIS 230 (Miss. 2008).

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).

Defendant did not show a violation of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986), in a capital murder trial by the exclusion of two African-American prospective jurors because race-neutral reasons were offered by the prosecution; even though the reasons given were later determined to be invalid since drug charges against one juror had been dismissed and the other juror was misidentified, this was not enough to warrant a reversal. Booker v. State, 2006 Miss. App. LEXIS 635 (Miss. Ct. App. Aug. 29, 2006), op. withdrawn, sub. op., 5 So.3d 411, 2008 Miss. App. LEXIS 77 (Miss. Ct. App. 2008).

As to defendant’s Batson challenge, the prosecutor’s reason for peremptorily striking the only black juror on the panel, because he was unemployed, was sufficiently race-neutral, notwithstanding defendant’s arguments that the number of unemployed blacks was disproportionate to the number of unemployed whites. Tyler v. State, 911 So. 2d 550, 2005 Miss. App. LEXIS 210 (Miss. Ct. App.), cert. denied, 920 So. 2d 1008, 2005 Miss. LEXIS 600 (Miss. 2005).

Trial court did not violate defendant’s right to a fair trial in accepting the State’s race-neutral reasons for excluding black jurors; one potential juror had possibly concealed her knowledge of the defendant, one juror appeared to be mentally slow, another was believed to be an alcoholic, and one did not respond to any voir dire questions. 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).

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).

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).

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).

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).

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 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).

84. – – Gender discrimination, impartial jury.

Defendant’s convictions for two counts of armed robbery were improper due to the prosecutor’s clear gender discrimination in jury selection. The State was not permitted to keep a person off of the jury simply because of that person’s gender. McGee v. State, 953 So. 2d 241, 2005 Miss. App. LEXIS 782 (Miss. Ct. App. 2005), rev'd, 2006 Miss. LEXIS 469 (Miss. Aug. 31, 2006).

85. – – Trial conduct, impartial jury.

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).

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).

86. – – Sequestration, impartial jury.

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 homicide prosecution, it was reversible error to allow the jury to disperse in capital cases, even though this was done with the consent of the defendant, since in a capital case, an accused has a right to trial by a duly constituted court which includes a jury whose verdict is beyond question; no consent of a defendant in such situation should be binding on him for he may really be unwilling to permit the jury to separate but might consent for fear that his refusal would prejudice the jury against him. Wilson v. State, 248 So. 2d 802, 1971 Miss. LEXIS 1492 (Miss. 1971).

87. – – Misconduct of jury, impartial jury.

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).

Where extraneous influence was introduced into jury’s deliberations by court and not by accident or some outside party, presumption is raised that prejudice flows from injection of such extraneous influence. Collins v. State, 701 So. 2d 791, 1997 Miss. LEXIS 520 (Miss. 1997).

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).

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).

A conversation between a juror and a material witness in a prosecution, the witness being a deputy sheriff and jailer, and having served as a courtroom deputy, just after the witness had testified for the state, was reversible error, where the defendant had, prior to the introduction of evidence, moved the court to direct police officers, including the instant witness, to remove themselves from close proximity to the jury box, and had moved for a mistrial immediately after the observed conversation, both of which requests were denied. Perkins v. State, 244 So. 2d 414, 1971 Miss. LEXIS 1336 (Miss. 1971).

88. – – Review, impartial jury.

In a case involving the possession of precursors used in the manufacture of a controlled substance, because there was no indication that a Batson challenge was raised during the jury selection process, any such claim was waived on appellate review. Fillyaw v. State, 10 So.3d 986, 2009 Miss. App. LEXIS 246 (Miss. Ct. App. 2009).

In a statutory rape case, defendant’s challenge under Batson was not heard on appellate review because this issue was not raised at trial; the trial court did not have the opportunity to make findings necessary to preserve the issue for appellate review. Roles v. State, 952 So. 2d 1043, 2007 Miss. App. LEXIS 180 (Miss. Ct. App. 2007).

Defendant’s challenge based on Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986), in a capital murder case was without merit because he did not raise the challenge at trial; therefore, the trial court did not have the opportunity to make the required fact-findings for an appellate court to review. Ramsey v. State, 959 So. 2d 15, 2006 Miss. App. LEXIS 764 (Miss. Ct. App. 2006), cert. denied, 958 So. 2d 1232, 2007 Miss. LEXIS 588 (Miss. 2007).

Court’s decision on qualifications of jurors in criminal case is open to review only on appeal. Lewis v. State, 153 Miss. 759, 121 So. 493, 1929 Miss. LEXIS 79 (Miss. 1929).

89. Nature and cause of accusation – In general.

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).

To be informed of the crime of which the accused is charged is one of the fundamental rights guaranteed by the Constitution. Murray v. State, 266 So. 2d 139, 1972 Miss. LEXIS 1388 (Miss. 1972), cert. denied, 411 U.S. 907, 93 S. Ct. 1534, 36 L. Ed. 2d 196, 1973 U.S. LEXIS 2937 (U.S. 1973).

A defendant is entitled to a plain statement of charge against him and it is fundamental that the affidavit must set forth the essential elements of the offense sought to be charged. May v. State, 209 Miss. 579, 47 So. 2d 887, 1950 Miss. LEXIS 416 (Miss. 1950).

Conviction cannot be sustained unless indictment is in conformity with law, purpose of which is to enable defendant to make defense of former acquittal or conviction on record in subsequent trial for same offense. Cooksey v. State, 175 Miss. 82, 166 So. 388, 1936 Miss. LEXIS 23 (Miss. 1936).

90. – – Validity of statutes, nature and cause of accusation.

Section 1362 of the code 1906 providing that it shall be sufficient in an indictment for perjury to set forth the substance of the offense charged, does not dispense with the necessity of averring the substance of the issue on which perjury is charged to have been committed, and therefore does not violate this section. State v. Silverberg, 78 Miss. 858, 29 So. 761, 1901 Miss. LEXIS 135 (Miss. 1901).

91. – – Purpose, nature and cause of accusation.

Constructive criminal contempt judgments against a process server, a notary, and the owner of a process service company (accuseds) were vacated as a chancellor violated the accuseds’ due process rights under Miss. Const. Art. III, § 26 since he failed to recuse himself after initiating the proceedings, and failed to issue summonses notifying the accuseds of the criminal nature of the charges against them under Miss. R. Civ. P. 81(d). In re McDonald, 98 So.3d 1040, 2012 Miss. LEXIS 492 (Miss. 2012).

The provision as to the nature and cause of the accusation is intended to secure to the accused such a specific description of the offense as will enable him to make preparation for his trial, and also such identification of the offense that he may be insured against a subsequent prosecution therefor. Noonan v. State, 9 Miss. 562, 1844 Miss. LEXIS 17 (Miss. 1844); Murphy v. State, 24 Miss. 590, 1852 Miss. LEXIS 108 (Miss. 1852); Garrard v. State, 25 Miss. 469, 1853 Miss. LEXIS 16 (Miss. 1853); Riggs v. State, 26 Miss. 51, 1853 Miss. LEXIS 40 (Miss. 1853); Norris v. State, 33 Miss. 373, 1857 Miss. LEXIS 49 (Miss. 1857); Newcomb v. State, 37 Miss. 383, 1859 Miss. LEXIS 27 (Miss. 1859); Williams v. State, 42 Miss. 328, 1868 Miss. LEXIS 70 (Miss. 1868); Riley v. State, 43 Miss. 397, 1870 Miss. LEXIS 51 (Miss. 1870); Thompson v. State, 51 Miss. 353, 1875 Miss. LEXIS 53 (Miss. 1875).

92. – – Necessary accusations, nature and cause of accusation.

In a case involving burglary of a nondwelling, an indictment failed to allege all of the essential elements of the crime; only the first element of the crime was cited in the indictment because there was no mention of any valuables kept in the house or a citation to the particular crime that defendant allegedly intended to commit. Therefore, the indictment was void as violative of the federal and state constitutional provisions relating to the right to notice of criminal charges. Gales v. State, 131 So.3d 1238, 2013 Miss. App. LEXIS 804 (Miss. Ct. App. 2013).

Four indictments charging defendant with the unlawful delivery of amphetamines, two charging delivery on one date and two charging delivery on another date and all of which failed to designate the person to whom delivery was made, were inadequate to appraise the defendant of the charges arising on the particular day for which he was being tried and, consequently, to enable him to plead double jeopardy. Taylor v. State, 295 So. 2d 735, 1974 Miss. LEXIS 1503 (Miss. 1974).

Indictment for bigamy must set forth something in nature of allegation with reference to time, place and circumstance of former marriage, or it must name person with whom former marriage is alleged to have been contracted. Wash v. State, 206 Miss. 858, 41 So. 2d 29, 1949 Miss. LEXIS 307 (Miss. 1949).

Indictment charging that defendant did wilfully, unlawfully, feloniously, knowingly and bigamously marry one named female, a married woman, knowing at time that she was married and had living husband is fatally defective in that it does not charge time, place or circumstances of former marriage of woman nor does it give name of her living husband. Wash v. State, 206 Miss. 858, 41 So. 2d 29, 1949 Miss. LEXIS 307 (Miss. 1949).

An indictment for larceny should describe the property alleged to have been taken with reasonable certainty, so that the description will enable the court to determine that the property in question is the subject of larceny, show the jury that such property is that upon which the indictment is founded, reasonably inform the accused of the instance meant in conformity with the constitutional guaranty in that respect so that he may properly prepare his defense, and be such that the judgment rendered after trial upon the indictment may be pleaded in bar of a subsequent prosecution for the same offense. Rutherford v. State, 196 Miss. 321, 17 So. 2d 803, 1944 Miss. LEXIS 195 (Miss. 1944).

Indictment was sufficient to charge crime of accessory after the fact to crime of murder, although it did not allege specific acts committed by defendant. State v. Needham, 182 Miss. 663, 180 So. 786, 1938 Miss. LEXIS 154 (Miss. 1938).

Information for contempt was not void because of failure to state venue. Prine v. State, 143 Miss. 231, 108 So. 716, 1926 Miss. LEXIS 260 (Miss. 1926).

An indictment must allege that the accused “did” the acts constituting the offense sought to be charged. Cook v. State, 72 Miss. 517, 17 So. 228, 1895 Miss. LEXIS 4 (Miss. 1895).

Venue must be alleged. Thompson v. State, 51 Miss. 353, 1875 Miss. LEXIS 53 (Miss. 1875).

It is essential that venue shall be averred and proven. Thompson v. State, 51 Miss. 353, 1875 Miss. LEXIS 53 (Miss. 1875).

93. – – Specificity, nature and cause of accusation.

Indictment sufficiently identifying robbery under as the underlying offense and listing its statutory section is all that is required to charge capital murder premised on robbery; because petitioner’s indictment identified the underlying felony as robbery and listed the statutory section under which he was charged, the capital murder charge was sufficiently pleaded and the indictment was not defective. Randall v. State, 148 So.3d 686, 2014 Miss. App. LEXIS 575 (Miss. Ct. App. 2014).

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 capital murder conviction under Miss. Code Ann. ’ 97-3-19(2)(e) was reversed where his indictment was insufficient to charge him with capital murder or burglary because it failed to assert the underlying offense that comprised the burglary; it also failed to charge him with murder or manslaughter where it omitted the term “unlawfully” or the phrase “without the authority of law.” Jackson v. State, 2010 Miss. LEXIS 170 (Miss. Apr. 1, 2010).

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).

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).

While Code 1942, § 2459 provides the exception as to descriptions of property in indictments for larceny by allowing the same to be described in general terms where the charge is for larceny of money or evidences of debt, the chapter on criminal procedure does not otherwise abrogate the common law rule requiring the description of personal property in an indictment for larceny to be reasonably definite and certain. Rutherford v. State, 196 Miss. 321, 17 So. 2d 803, 1944 Miss. LEXIS 195 (Miss. 1944).

Indictment in grand larceny prosecution charging defendant with theft of “a quantity of clover seed,” of the value of “more than $25 in lawful money,” was so vague, uncertain and indefinite as to give defendant no intimation regarding amount of clover seed which he was accused of stealing and was subject to demurrer. Rutherford v. State, 196 Miss. 321, 17 So. 2d 803, 1944 Miss. LEXIS 195 (Miss. 1944).

Constitution secures to defendant only right to be advised of nature of charge against him, and not right to have set forth facts relied on to sustain charge. State v. Needham, 182 Miss. 663, 180 So. 786, 1938 Miss. LEXIS 154 (Miss. 1938).

Description in indictment for grand larceny in theft of automobile as “one certain Ford automobile, two-door make, of the property of Ben Stevens and of the value of more than $25.00” was sufficient. Jackson v. State, 173 Miss. 776, 163 So. 381, 1935 Miss. LEXIS 250 (Miss. 1935).

Failure of indictment to inform defendant of names of persons to whom sales of liquor were made was not in violation of Constitution. Buford v. State, 146 Miss. 66, 111 So. 850, 1927 Miss. LEXIS 229 (Miss. 1927).

94. – – Amendment of indictment or information, nature and cause of accusation.

Trial court properly amended the State’s motion to amend the indictment to strike items identified as having been stolen and to change the description of other items because the deleted items were mere surplusage; the removal of the items did not change the substance of the offense, defendant was afforded a fair opportunity to defend herself and was not unfairly surprised, the amendment clarified and narrowed the essential facts, and the deletion of the items did not eliminate any defense. Nations v. State, 199 So.3d 1265, 2016 Miss. App. LEXIS 538 (Miss. Ct. App. 2016).

In a sexual battery case, the indictment was properly amended by the removal of the phrase “without her consent,” because the defense to the charge did not change, and although defendant might have asserted that he was surprised, his surprise could not be characterized as unfair; the net effect of the amendment was that defendant only had to defend one claim, rather than two. Lee v. State, 944 So. 2d 35, 2006 Miss. LEXIS 680 (Miss. 2006).

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).

The constitutional provision requiring that an accused be advised of the offense charged, does not prohibit an amendment which does not deprive the accused of any substantial right necessary to the ends of justice. Gillespie v. State, 221 Miss. 116, 72 So. 2d 245, 1954 Miss. LEXIS 519 (Miss. 1954).

An amendment may be made to state truly and describe accurately the particular and identical offense for which the grand jury indicted. Gillespie v. State, 221 Miss. 116, 72 So. 2d 245, 1954 Miss. LEXIS 519 (Miss. 1954).

Where there was a clerical mistake in an indictment for murder as to deceased’s Christian name, permitting of the amendment to the indictment prior to trial did not prejudice the defendant inasmuch as the offense charged in the indictment was not changed. Gillespie v. State, 221 Miss. 116, 72 So. 2d 245, 1954 Miss. LEXIS 519 (Miss. 1954).

95. – – Included lesser offenses, nature and cause of accusation.

In a murder case, defendant was on statutory notice that the jury could convict him of any lesser-included offense, even if the lesser-included offense was not listed in a separate count of the indictment. Thompson v. State, 269 So.3d 301, 2018 Miss. App. LEXIS 175 (Miss. Ct. App. 2018).

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).

96. – – Sufficiency, nature and cause of accusation.

Defendant’s challenge to her indictment was procedurally barred because defendant failed to raise the issue in the circuit court; the indictment clearly alleged both of the essential elements of the aggravated driving while under the influence statute, and thus, the alleged defect was not “jurisdictional” in nature. Dartez v. State, 271 So.3d 733, 2018 Miss. App. LEXIS 636 (Miss. Ct. App. 2018).

Vacating of defendant’s sentence and remand for resentencing was appropriate because defendant was improperly sentenced under a subsection not properly charged in the indictment. Defendant was not on notice that defendant would be convicted and sentenced for simple assault on emergency medical personnel, an aggravating circumstance, but was on notice that defendant was being tried for simple assault on medical personnel. Hawkins v. State, 255 So.3d 1264, 2018 Miss. LEXIS 431 (Miss. 2018).

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).

Any error that resulted from an allegedly insufficient indictment for felony driving under the influence causing death or disfigurement, in violation of Miss. Code Ann. §63-11-30(5) (Supp. 2010), was harmless because defendant had fair notice and an opportunity to prepare a defense. While the indictment did not allege a specific basis for defendant’s negligence, the appellate court specifically stated that it was not making a finding of insufficiency. Regardless, any finding of insufficiency would have been harmless because discovery showed the possibility to two specific negligent acts: driving on the wrong side of the road and speeding. Taylor v. State, 94 So.3d 298, 2011 Miss. App. LEXIS 238 (Miss. Ct. App. 2011), cert. denied, 96 So.3d 732, 2012 Miss. LEXIS 371 (Miss. 2012).

Indictment for fondling and sexual battery was not defective for failing to provide the specific dates that the offenses occurred, as the state had narrowed the time frame sufficiently to put defendant on notice of the nature and cause of the charges against him. Hodgin v. State, 964 So. 2d 492, 2007 Miss. LEXIS 406 (Miss. 2007).

Defendant was properly convicted of sexually battery by digital penetration where sufficient proof showed that defendant was provided notice that he was being charged with sexual battery, and the variance between the language of the indictment and proof at trial was not a fatal error under Miss. Const. Art. 3, § 26. Burrows v. State, 961 So. 2d 701, 2007 Miss. LEXIS 341 (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).

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).

Defendant was properly apprised of the nature and cause of a homicide by an indictment, 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).

Manslaughter is not a lesser-included offense of murder; therefore, a trial court was not permitted to enter a limited directed verdict on a murder charge and allow a jury to consider the unindicted offense of manslaughter because defendant did not receive notice of the manslaughter charge in the murder indictment. State v. Shaw, 2003 Miss. LEXIS 525 (Miss. Oct. 9, 2003), op. withdrawn, sub. op., 880 So. 2d 296, 2004 Miss. LEXIS 1027 (Miss. 2004).

Confession of defendant, stating charge to be assault and battery with intent to kill his wife, made and signed at a time when the wife was still living, did not constitute a misrepresentation of the charges against defendant in violation of defendant’s constitutional right to be informed of the nature of the charges against him, since the way defendants are constitutionally informed of criminal offenses against them is by means of the affidavit, information, or indictment, and not information from officers under the circumstances involved. Coleman v. State, 46 So. 2d 75 (Miss. 1950).

Admission of evidence in prosecution for rape of child under twelve years of age that defendant had committed other like offenses against victim constituted violation of this section in requiring defendant to be prepared to answer for several separate and distinct capital offenses upon a trial under a single indictment where there has been no previous conviction. English v. State, 206 Miss. 170, 39 So. 2d 876, 1949 Miss. LEXIS 251 (Miss. 1949), overruled, Brooks v. State, 242 So. 2d 865, 1971 Miss. LEXIS 1498 (Miss. 1971).

Conviction of assault and battery with hands and fists was erroneous under indictment charging assault with pistol with intent to kill. Harrell v. State, 148 Miss. 718, 114 So. 815, 1927 Miss. LEXIS 85 (Miss. 1927).

97. – – Instructions, nature and cause of accusation.

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).

Under the constitutions of both the United States and the State of Mississippi and under §99-19-5, a jury instruction on child fondling should not have been given where the indictment charged only forcible rape since child fondling is not a necessarily included offense of forcible rape and, therefore, the indictment did not sufficiently notify the defendant that he might face a charge of child fondling. Hailey v. State, 537 So. 2d 411, 1988 Miss. LEXIS 632 (Miss. 1988).

98. – – Time to raise issue, nature and cause of accusation.

Insufficiency of bigamy indictment may be raised for first time on appeal when indictment is fatally defective for failure to set forth time, place and circumstance of former marriage, or name of person with whom former marriage is alleged to have been contracted. Wash v. State, 206 Miss. 858, 41 So. 2d 29, 1949 Miss. LEXIS 307 (Miss. 1949).

99. Compulsory process–In general.

Criminal statute and rule of evidence rendering convicted perjurer incompetent to testify in criminal proceeding violated provision of state constitution entitling defendant to compulsory process, as evidentiary rule gave district attorney discretion as to whether to render particular witness incompetent by prosecuting him for perjury or preserve his competence by declining to prosecute known perjury. Fuselier v. State, 702 So. 2d 388, 1997 Miss. LEXIS 529 (Miss. 1997).

Where extraneous influence was introduced into jury’s deliberations by court and not by accident or some outside party, presumption is raised that prejudice flows from injection of such extraneous influence. Collins v. State, 701 So. 2d 791, 1997 Miss. LEXIS 520 (Miss. 1997).

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).

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).

An accused has a constitutional right to summon his attorney as a witness, which cannot be denied on the ground of embarrassment to the attorney or violation of court etiquette. Gradsky v. State, 243 Miss. 379, 137 So. 2d 820, 1962 Miss. LEXIS 353 (Miss. 1962).

100. – – Administrative proceedings, compulsory process.

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).

101. – – Child witnesses, compulsory process.

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).

102. – – Expert witnesses, compulsory process.

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 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).

103. – – Character witnesses, compulsory process.

Defendant in capital murder case is not entitled to compulsory process, attendance fees, and travel expenses for out of state prospective character witnesses, particularly in case in which only thing presented to judge as to testimony of proposed witnesses is summary by counsel, not sworn to, as to what witnesses might testify. Johnson v. State, 477 So. 2d 196, 1985 Miss. LEXIS 2072 (Miss. 1985), cert. denied, 476 U.S. 1109, 106 S. Ct. 1958, 90 L. Ed. 2d 366 (U.S. 1986).

104. – – Continuances, compulsory process.

Trial court erred in denying defendant’s motion for a continuance to subpoena his coindictee; the trial court’s conclusory reasoning, that the coindictee would exercise his Fifth Amendment privilege to avoid testifying, was without legal basis to deny defendant his right to call a witness, and defendant’s Sixth Amendment right to compulsory process to call a witness was not recognized. An accused was allowed to call a witness even though the witness, if called, would have invoked the Fifth Amendment. Hannah v. State, 111 So.3d 1196, 2013 Miss. LEXIS 70 (Miss. 2013).

Continuance was not warranted in a capital murder case because defense counsel was aware of one witness before trial and failed to issue a subpoena, and as to a second witness, defendant’s rights under the Sixth Amendment and Miss. Const. Art. 3, § 26 were not violated since there was no colorable need for the presence of the witness; moreover, defendant did not show that it was impossible or impracticable to secure an affidavit from the witness. King v. State, 962 So. 2d 124, 2007 Miss. App. LEXIS 494 (Miss. Ct. App. 2007).

A continuance to obtain attendance of an absent witness at a criminal trial is permissively refused where the witness, clearly implicated in the crime charged, could not have been required to testify. Averitt v. State, 246 Miss. 49, 149 So. 2d 320, 1963 Miss. LEXIS 417 (Miss.), cert. denied, 375 U.S. 5, 84 S. Ct. 51, 11 L. Ed. 2d 38, 1963 U.S. LEXIS 502 (U.S. 1963).

In the absence of showing on the record that subpoenaed witness was present at the trial of a murder prosecution, it was error to deny accused’s application for continuance, and reviewing court could not consider a certified copy of subpoena issued for the witness and affidavit of sheriff to the effect that witness was present at the trial where such papers were not part of the record. Whit v. State, 85 Miss. 208, 37 So. 809, 1904 Miss. LEXIS 151 (Miss. 1904).

105. Right to be present at trial–In general.

The manner in which the trial court instructed a jury to continue deliberations was not error because an inmate had a full opportunity to demonstrate prejudice and failed to do so. Thus, the unrecorded oral ex parte communication did not deny him a fundamentally fair trial. Tyler v. State, 19 So.3d 663, 2009 Miss. LEXIS 392 (Miss. 2009).

Statute governing trial in absence of accused does not offend dictates of State Constitution, which sets forth rights to confront accusers and to be present at trial. Jackson v. State, 689 So. 2d 760, 1997 Miss. LEXIS 39 (Miss. 1997), superseded, Monroe v. Monroe, 745 So. 2d 249, 1999 Miss. LEXIS 229 (Miss. 1999).

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).

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).

While it would be the better practice to have the accused present when a special venire is drawn, the drawing of a special venire for a robbery prosecution, in the absence of the defendant and his counsel, was not reversible error, particularly where the defendant did not claim that he was prejudiced or that his case was not heard by an impartial jury, the drawing of a special venire not being a part of the actual trial. Kendall v. State, 249 So. 2d 657, 1971 Miss. LEXIS 1171 (Miss. 1971), cert. denied, 404 U.S. 1040, 92 S. Ct. 725, 30 L. Ed. 2d 733, 1972 U.S. LEXIS 3956 (U.S. 1972).

Accused tried for misdemeanor in his absence when physically unable to attend trial is deprived of his constitutional right to be present, to be heard in his own behalf and to be confronted by witnesses against him. Jones v. State, 204 Miss. 284, 37 So. 2d 311, 1948 Miss. LEXIS 362 (Miss. 1948).

Absence of accused from courtroom when order sustaining motion for special venire was entered was harmless where accused was in jail, his counsel did not inform court of intention to rely on such absence, and there was no showing of unfairness in drawing of special venire, or that accused was not tendered an impartial jury. Ford v. State, 170 Miss. 459, 155 So. 220, 1934 Miss. LEXIS 160 (Miss. 1934).

All evidence, whether of living witnesses or inanimate objects, must be produced before the jury in the presence of the accused and the court. The legislature cannot authorize a jury to visit the scene of the crime unaccompanied by the accused and the court. Foster v. State, 70 Miss. 755, 12 So. 822, 1893 Miss. LEXIS 28 (Miss. 1893).

106. – – Misconduct of defendant, right to be present at trial.

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).

Where, during a state criminal trial, the defendant’s behavior was clearly of such an extreme and aggravated nature as to justify either his removal from the courtroom or his total physical restraint, and prior to his removal he was repeatedly warned by the trial judge that he would be removed from the courtroom if he persisted in his unruly conduct, the record demonstrated that the defendant would not have been dissuaded by the trial judge’s use of his criminal contempt powers, and he was constantly informed that he could return to the trial when he would agree to conduct himself in an orderly manner, under the circumstances the defendant lost his right guaranteed by the Sixth and Fourteenth Amendments of the federal constitution to be present throughout his trial. Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353, 1970 U.S. LEXIS 55 (U.S. 1970).

107. – – Waiver, right to be present at trial.

Trial court did not abuse its discretion in trying defendant in absentia because defendant’s absence had been a willful, voluntary, and deliberate attempt to avoid trial as he failed to appear on the date of his scheduled trial after being personally informed of the trial date; and his counsel and the investigator made multiple unsuccessful efforts to contact defendant. Wilson v. State, 267 So.3d 264, 2019 Miss. LEXIS 152 (Miss. 2019).

Circuit court did not abuse its discretion in finding defendant willfully, voluntarily and deliberately absented himself from the trial and proceeding to trial in his absence. Although defendant claimed he was prejudiced because he was not present to argue the credibility of the wit-nesses and their identification of him as one of the perpetrators, defendant’s deliberate absence from his trial operated as a waiver of the right to be present. McDonald v. State, 226 So.3d 626, 2017 Miss. App. LEXIS 554 (Miss. Ct. App. 2017).

It was not plain error to try defendant in absentia because defendant was released on bond and was in default for nonappearance, as defendant knew defendant’s trial date, understood defendant had to be there, and did not show defendant’s absence was not willful, voluntary, and deliberate. Barksdale v. State, 176 So.3d 108, 2015 Miss. App. LEXIS 184 (Miss. Ct. App.), cert. denied, 178 So.3d 333, 2015 Miss. LEXIS 525 (Miss. 2015).

Defendant’s constitutional right to confront his accusers and be present and sentencing were not violated when defendant was convicted and sentenced in absentia of felony third-offense domestic violence, Miss. Code Ann. §97-3-7(3), because defendant voluntarily waived his sentence at trial and sentencing, pursuant to Miss. Code Ann. §99-17-9, by willfully failing to attend; defendant spoke with his attorney the morning of trial and indicated he was attending but defendant never showed up. Robinson v. State, 66 So.3d 198, 2011 Miss. App. LEXIS 396 (Miss. Ct. App. 2011).

In murder trial where defendant was in custody, he had right to waive his presence at the hearing of a motion for new trial. Sims v. State, 209 Miss. 545, 47 So. 2d 849, 1950 Miss. LEXIS 412 (Miss. 1950).

In trial for misdemeanor, accused may, by his own fault or misconduct, waive his right to be present. Jones v. State, 204 Miss. 284, 37 So. 2d 311, 1948 Miss. LEXIS 362 (Miss. 1948).

Defendant was entitled to waive right to be present on hearing of motion for new trial in felony prosecution, where it was not shown that he was prejudiced thereby. Odom v. State, 172 Miss. 687, 161 So. 141, 1935 Miss. LEXIS 177 (Miss. 1935).

107. —Waiver, right to be present at trial;

Trial court did not err in finding that defendant was absent from the trial voluntarily and in trying him in absentia because defendant had actual knowledge of the trial dates and actually appeared in court before ultimately walking out after his request for a continuance was denied; and there was no merit to defendant’s claims that his mental condition caused him to miss the trial involuntarily. Moore v. State, 287 So.3d 189, 2020 Miss. LEXIS 1 (Miss. 2020).

108. Confrontation of witnesses – In general.

Admitting a victim’s taped forensic interview did not violate defendant’s right to confrontation because defendant waived the right by failing to object to admission of the tape. Byers v. State, 157 So.3d 98, 2014 Miss. App. LEXIS 399 (Miss. Ct. App. 2014), cert. denied, 157 So.3d 835, 2015 Miss. LEXIS 74 (Miss. 2015).

Defendant’s right to confrontation was not denied at defendant’s sentencing by the admission of certified copies of defendant’s prior indictments and sentencing orders. The documents were created for the administrative purpose of tracking criminal proceedings, and were not created solely for an evidentiary purpose. Small v. State, 141 So.3d 61, 2014 Miss. App. LEXIS 357 (Miss. Ct. App. 2014).

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).

Because the constitutional errors did not prejudice the outcome of the trial, there was no manifest miscarriage of justice and no reversible error. Burdette v. State, 110 So.3d 296, 2013 Miss. LEXIS 75 (Miss. 2013).

In defendant’s trial for capital murder, while the trial court erred in allowing a letter to be read during sentencing because defendant had no opportunity to cross-examine the author of the letter, in light of the totality of the evidence presented during the sentencing phase, the error was harmless. Pitchford v. State, 45 So.3d 216, 2010 Miss. LEXIS 328 (Miss. 2010), cert. denied, 563 U.S. 939, 131 S. Ct. 2098, 179 L. Ed. 2d 897, 2011 U.S. LEXIS 3058 (U.S. 2011).

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).

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).

Where defendant was prosecuted after a controlled drug buy involving an informant and other officers, defendant was not prejudiced as the result of the admission of one officer’s statement on the audiotape where that officer did not testify at trial. That officer’s statement was not the incriminating evidence from the tape, defendant was able to cross-examine each and every witness the State offered, and there was no violation of defendant’s constitutional rights of confrontation and cross-examination; further, the statement qualified as a present sense impression and was not inadmissible hearsay. Burton v. State, 875 So. 2d 1120, 2004 Miss. App. LEXIS 600 (Miss. Ct. App. 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).

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).

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).

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).

Where a rape victim was 86 years old, and was hospitalized for some time after the rape, and upon her release from the hospital was not able to return to her home, it was reasonable for the police to take the defendant to the victim’s hospital room for identification, and such confrontation was not so unnecessarily suggestive and conducive to irreparable mistaken identification, as to be a denial of due process. Davis v. State, 255 So. 2d 916, 1971 Miss. LEXIS 1302 (Miss. 1971), cert. denied, 409 U.S. 855, 93 S. Ct. 191, 34 L. Ed. 2d 99, 1972 U.S. LEXIS 1384 (U.S. 1972).

Accused tried for misdemeanor in his absence when physically unable to attend trial is deprived of his constitutional right to be present, to be heard in his own behalf and to be confronted by witnesses against him. Jones v. State, 204 Miss. 284, 37 So. 2d 311, 1948 Miss. LEXIS 362 (Miss. 1948).

Constitutional provision entitling accused, in “criminal prosecutions,” to be present and confronted by witnesses against him, was inapplicable to habeas corpus proceeding, since such proceedings are not “criminal prosecutions,” but are civil proceedings. Shawver v. Fraser, 111 Fla. 585, 150 So. 519, 1933 Fla. LEXIS 2053 (Fla. 1933).

Admitting verdict of coroner’s jury finding death was by violent means was prejudicial error, because it denied defendant right to be confronted by witnesses. McGee v. State, 25 Ala. App. 361, 146 So. 628, 1933 Ala. App. LEXIS 44 (Ala. Ct. App. 1933).

The defendant has the right to be confronted on the trial by all witnesses against him. Scaggs v. State, 16 Miss. 722, 1847 Miss. LEXIS 78 (Miss. 1847).

109. – – Time right attaches, 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).

110. – – Pre-trial confrontation of witnesses.

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).

111. – – Joint trial, confrontation of witnesses.

Confrontation clause of Sixth Amendment bars admission, at joint criminal trial, of nontestifying codefendant’s pretrial confession which incriminates defendant and is not directly admissible against defendant, even though jury is instructed not to consider confession against defendant, and defendant’s own confession, corroborating that of codefendant, is admitted against defendant. Cruz v. New York, 481 U.S. 186, 107 S. Ct. 1714, 95 L. Ed. 2d 162, 1987 U.S. LEXIS 1807 (U.S. 1987).

Confrontation clause of Sixth Amendment is not violated by admission, at joint criminal trial, of nontestifying codefendant’s confession, even though defendant is linked to confession by other evidence properly admitted against defendant at joint trial, where codefendant’s confession is redacted to eliminate not only defendant’s name but any reference to defendant’s existence, and jury is given proper limiting instruction not to use codefendant’s confession against defendant. Richardson v. Marsh, 481 U.S. 200, 107 S. Ct. 1702, 95 L. Ed. 2d 176, 1987 U.S. LEXIS 1812 (U.S. 1987).

At the joint trial of two defendants charged with armed robbery, the admission of their confessions, found to have been otherwise admissible, in the state’s case-in-chief, did not violate each defendant’s right to confrontation of witnesses and was not improper, although both confessions incriminated each defendant and neither of them took the stand, where, upon the admission of the confessions; the trial judge instructed the jury that each confession could not be considered as evidence against the other defendant, that the confessions were almost identical in every detail, and that each defendant admitted his own guilt. Seales v. State, 495 So. 2d 475, 1986 Miss. LEXIS 2679 (Miss. 1986), overruled in part, Smith v. State, 986 So. 2d 290, 2008 Miss. LEXIS 339 (Miss. 2008).

At the joint trial of two 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).

At the joint trial of two defendants charged with armed robbery, the admission of their confessions, found to have been otherwise admissible, in the state’s case-in-chief, did not violate each defendant’s right to confrontation of witnesses and was not improper, although both confessions incriminated each defendant and neither of them took the stand, where, upon the admission of the confessions; the trial judge instructed the jury that each confession could not be considered as evidence against the other defendant, that the confessions were almost identical in every detail, and that each defendant admitted his own guilt. Seales v. State, 495 So. 2d 475, 1986 Miss. LEXIS 2679 (Miss. 1986), overruled in part, Smith v. State, 986 So. 2d 290, 2008 Miss. LEXIS 339 (Miss. 2008).

Where a co-defendant alleged to have made an out-of-court statement inculpating the other defendant at a joint trial is present at the trial to testify and to submit to cross-examination, the admission of the co-defendant’s out-of-court statement does not present a confrontation problem, even though the statement is hearsay as to the other defendant, so that its admission against him, in the absence of a cautionary instruction, would be reversible error under state law. Nelson v. O'Neil, 402 U.S. 622, 91 S. Ct. 1723, 29 L. Ed. 2d 222, 1971 U.S. LEXIS 39 (U.S. 1971).

Where a co-defendant at a joint trial in a state prosecution takes the stand in his own defense, denies making an alleged out-of-court statement implicating the other defendant, and proceeds to give testimony favorable to the other defendant concerning the underlying facts, the defendant implicated by the statement has been denied no rights protected by the Sixth and Fourteenth Amendments to the United States Constitution. Nelson v. O'Neil, 402 U.S. 622, 91 S. Ct. 1723, 29 L. Ed. 2d 222, 1971 U.S. LEXIS 39 (U.S. 1971).

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).

112. – – Misconduct of defendant, confrontation of witnesses.

While courts must indulge every reasonable presumption against the loss of constitutional rights, the privilege of personally confronting witnesses may be lost by consent or at times by misconduct, and a defendant can lose his constitutional right to be present at his own criminal trial, if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353, 1970 U.S. LEXIS 55 (U.S. 1970).

113. – – Child witnesses, confrontation of witnesses.

Admitting a victim’s taped forensic interview did not violate defendant’s right to confrontation because both participants in the interview were present and available for defendant to cross-examine. Byers v. State, 157 So.3d 98, 2014 Miss. App. LEXIS 399 (Miss. Ct. App. 2014), cert. denied, 157 So.3d 835, 2015 Miss. LEXIS 74 (Miss. 2015).

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).

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, 1995 Miss. LEXIS 564 (Miss. 1995).

114. – – Unavailable witnesses, confrontation of witnesses.

The Confrontation Clause was not violated when the chief medical examiner testified that, although the chief medical examiner did not perform the actual autopsy procedures, the chief medical examiner examined the autopsy reports, along with the photographs and case notes, consulted with the medical examiner who performed the autopsy, reviewed and discussed the report with the medical examiner prior to signing off on the report, and concluded based on a reasonable degree of medical certainty that the victim died from gunshot wounds. Fairley v. State, 251 So.3d 761, 2018 Miss. App. LEXIS 170 (Miss. Ct. App. 2018).

Admitting a deceased codefendant’s statements did not violate defendant’s confrontation right because (1) the statements were casual remarks that did not inculpate defendant, and (2) counsel elicited some of the same information. Polk v. State, 205 So.3d 1157, 2016 Miss. App. LEXIS 258 (Miss. Ct. App.), cert. denied, 205 So.3d 1087, 2016 Miss. LEXIS 533 (Miss. 2016).

Admission of a police detective’s videotaped deposition testimony into evidence was not an abuse of discretion because the detective had serious health complications and was considered by the circuit judge to have been unavailable at the trial. Moreover, defense counsel had the opportunity to cross-examine the detective during the deposition, with defendant present. McKenzie v. State, 119 So.3d 1145, 2013 Miss. App. LEXIS 480 (Miss. Ct. App. 2013).

Defendant’s convictions for robbery and capital murder were appropriate because, while the circuit court erred in allowing references to a deceased codefendant’s statement to law enforcement to corroborate defendant’s statement, the violation of defendant’s constitutional right to confront the witness was harmless since the weight of the evidence was overwhelming. Defendant’s own statement confessing to robbing the victim and stabbing him in the abdomen with a screwdriver was entered into evidence; other evidence included an officer’s and sheriff’s recounting of the “treasure hunt” with the codefendant, where they traveled to various areas and retrieved evidence that corroborated defendant’s statement to a “T.” Singleton v. State, 1 So.3d 930, 2008 Miss. App. LEXIS 641 (Miss. Ct. App. 2008).

Reversal is required in the interest of justice when the prosecution is permitted to introduce an out-of-court hearsay statement for the truth asserted therein as a result of its main witness’s professed loss of memory on direct examination; but, when cross-examined, the witness’s responses indicate that his loss of memory is entirely fabricated. Not only was defendant entitle to a new trial after a victim’s prior statements were improperly admitted as a result of the victim’s memory loss seeming to disappear during cross-examination thereby making the victim available again but admission of the victim’s statements also violated defendant’s rights under the Confrontation Clause as defendant did not have an opportunity to cross-examine the victim about his accusations. Smith v. State, 25 So.3d 313, 2008 Miss. App. LEXIS 614 (Miss. Ct. App. 2008), rev'd, 25 So.3d 264, 2009 Miss. LEXIS 546 (Miss. 2009).

Testimony that defendant had a sexual relationship with one of the victims, his stepson’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, as the statements made by the victim, the declarant, were non-testimonial for Crawford purposes, and the declarant was unavailable. Rubenstein v. State, 941 So. 2d 735, 2006 Miss. LEXIS 411 (Miss. 2006).

Defendant’s capital murder convictions were proper where his confrontation rights under U.S. Const. Amend. VI and Miss. Const. Art. III, § 26 were not compromised because the statements defendant argued violated his right to confrontation did not constitute testimonial hearsay, which would be barred unless the witness was unavailable and the defendant had a prior opportunity for cross-examination; defendant made no objection at trial that the Confrontation Clause had been violated; and the trial court had determined that the victim, who was the declarant, was unavailable and that the evidence in question showed 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).

Where the State’s expert witness testified by deposition because he was unavailable for trial before he had reviewed defendant’s medical records, defendant was not denied his right to cross-examine the State’s expert witness because the court found that the expert had testified that he had had the information that he had needed to testify as to defendant’s sanity and the jury heard testimony from eye witnesses, defendant’s expert, and others. Wilson v. State, 923 So. 2d 1039, 2005 Miss. App. LEXIS 707 (Miss. Ct. App. 2005), cert. denied, 927 So. 2d 750, 2006 Miss. LEXIS 151 (Miss. 2006).

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).

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).

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).

Generally, where one is deprived of the opportunity to cross-examine a witness, as in the case of the illness or death of the witness after his direct examination, he may have the testimony previously given on direct examination excluded from the jury’s consideration. Crapps v. State, 221 So. 2d 722, 1969 Miss. LEXIS 1505 (Miss. 1969).

115. – – Adverse or hostile witnesses, confrontation of witnesses.

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).

116. – – Discovery, confrontation of witnesses.

Defendant’s right to call witnesses was not violated when the trial court precluded him from calling a witness who was not timely disclosed because her testimony would not have added anything material to other testimony on the same issue. Bell v. State, 287 So.3d 944, 2019 Miss. App. LEXIS 316 (Miss. Ct. App. 2019), cert. denied, — So.3d —, 2020 Miss. LEXIS 135 (Miss. 2020).

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).

At trial of sexual battery charge, the exclusion from evidence of letters written by prosecutrix to defendant, predicated on defense’s failure to disclose them in pretrial discovery, did not deprive defendant of his constitutional right to confront witnesses, to a fair trial, and to due process of law, even though the excluded letters, which otherwise were competent evidence, on their face reflected a relationship between defendant and his stepdaughter (prosecutrix) substantially at odds with prosecution’s theory that defendant had employed threats of violence or death to force his stepdaughter to engage in sexual acts with him, contained materials which impeached testimony of prosecutrix, and contradicted other more peripheral parts of prosecution’s case. Coates v. State, 495 So. 2d 464, 1986 Miss. LEXIS 2662 (Miss. 1986).

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).

No constitutional right is violated by refusing defendant’s request for production of a written statement of a state’s witness to the district attorney, not shown to be at variance with trial testimony. Mattox v. State, 243 Miss. 402, 139 So. 2d 653, 1962 Miss. LEXIS 357 (Miss. 1962).

117. – – Test results and testing equipment, confrontation of witnesses.

Admitting defendant’s blood-alcohol testing through the testimony of a supervisor, rather than the analyst who performed the tests, did not violate defendant’s confrontation clause rights because (1) the supervisor was a court-accepted expert in the field of forensic toxicology who was actively involved in the production of the report, had intimate knowledge of the tests performed and the process used to confirm the findings, and reviewed the analyst’s work to ensure accurate conclusions, and (2) the supervisor testified the supervisor would have arrived at the same result had the supervisor done the testing. Page v. State, 250 So.3d 1276, 2018 Miss. App. LEXIS 100 (Miss. Ct. App.), cert. denied, 250 So.3d 1271, 2018 Miss. LEXIS 363 (Miss. 2018).

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).

Expert testimony of the technical and administrative reviewer of the primary analyst who tested defendant’s blood and urine did not violate defendant’s constitutional right to confront witnesses against defendant. The witness was actively involved in the production of the lab report, had intimate knowledge of the tests that were performed and the process that was used to confirm the findings, and reviewed the analyst’s work, including the data, to ensure that the conclusions were correct and accurate. Roberts v. State, 229 So.3d 1060, 2017 Miss. App. LEXIS 610 (Miss. Ct. App. 2017).

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).

Because the doctor did not create the toxicology report and had no knowledge of the preparation or analysis of the report, his testimony about the toxicology report violated defendant’s confrontation right; however, the error was harmless because the doctor’s testimony about the victim’s toxicology report did not attest to defendant’s intent to kill the victim; and his primary testimony about the toxicology report involved the victim’s blood-alcohol level, which was not at issue. England v. State, 195 So.3d 830, 2016 Miss. App. LEXIS 14 (Miss. Ct. App. 2016), cert. dismissed, — So.3d —, 2017 Miss. LEXIS 112 (Miss. 2017).

Supervisor’s testimony about a DNA report did not violate the Confrontation Clause because the supervisor observed a DNA analyst conducting a DNA test and testified about the results, which he verified before he signed the report; based on the supervisor’s personal knowledge about the testing process and the DNA report, any questions defendant had about the accuracy of the testing or report could have been put to the supervisor on cross-examination. Carr v. State, 190 So.3d 1, 2015 Miss. App. LEXIS 605 (Miss. Ct. App. 2015).

Trial court did not err in denying defendant’s motion for a directed verdict because defendant’s confrontation rights were not violated where, while the drug analyst who testified was not the person who performed testing on the substance at issue, the analyst supervised a scientist who was in training with the crime lab in her testing of the substance, the analyst signed off on the scientist’s report, made all of the decisions based on the data that was collected, and made the ultimate decision to identify the substance. Parker v. State, 192 So.3d 1045, 2015 Miss. App. LEXIS 570 (Miss. Ct. App. 2015), cert. denied, 202 So.3d 1265, 2016 Miss. LEXIS 247 (Miss. 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 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 conviction for burglary of a dwelling was proper because there was no merit to his argument that his right to confrontation was denied. There was no testimony or evidence from a fingerprint examiner and the report was neither admitted into evidence nor were the findings ever presented to the jury. Denham v. State, 966 So. 2d 894, 2007 Miss. App. LEXIS 707 (Miss. Ct. App. 2007).

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 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 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 date of 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 of 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).

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, so long as the proper foundation is laid. Harkins v. State, 735 So. 2d 317, 1999 Miss. LEXIS 129 (Miss. 1999).

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 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 prosecution, the admission of the testimony of a director of the state hospital, in which the director, who had not himself examined the defendant, stated that the final determined diagnosis was that the defendant was without psychosis was highly prejudicial and constituted reversible error; since by such testimony the state got into evidence the opinion of the doctors who examined the defendant, depriving the defendant of his right to be confronted by these witnesses as well as his right to cross-examine them. Butler v. State, 245 So. 2d 605, 1971 Miss. LEXIS 1382 (Miss. 1971).

A defendant charged with possession of marijuana was entitled to be furnished a sample of the alleged marijuana which had been seized from his automobile, for the purpose of enabling a chemist employed by him to determine whether marijuana was present, but he was not entitled to a report setting forth the tests and procedures used by the state’s chemist and findings from the analysis of the substance, where a portion of the substance would be made available to him, affording him sufficient knowledge for a competent cross-examination of the state’s chemist. Jackson v. State, 243 So. 2d 396, 1970 Miss. LEXIS 1397 (Miss. 1970).

118. – – Informants, confrontation of witnesses.

Because appellant pleaded guilty to the charged offenses, his claim that he was denied the right to confront the confidential informant was procedurally barred. Turner v. State, 262 So.3d 547, 2018 Miss. App. LEXIS 223 (Miss. Ct. App. 2018), cert. denied, 260 So.3d 800, 2019 Miss. LEXIS 41 (Miss. 2019).

Appellant was not denied the right to confront a confidential informant because not only were his claims made without any supporting evidence, they were all contradictory to his testimony in the record. Turner v. State, 262 So.3d 547, 2018 Miss. App. LEXIS 223 (Miss. Ct. App. 2018), cert. denied, 260 So.3d 800, 2019 Miss. LEXIS 41 (Miss. 2019).

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).

Trial court sustained defendant’s hearsay objections when a police officer attempted to testify to an informant’s statements, and the trial court sua sponte directed the police officer to refrain from testifying about what the informant said; thus, the informant’s statements were never admitted into evidence, and there was therefore no violation of defendant’s right to confront the witnesses against him under USCS Const. Amend. 6 and Miss. Const. Art. 3, § 26. Turner v. State, 945 So. 2d 992, 2007 Miss. App. LEXIS 5 (Miss. Ct. App. 2007).

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).

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).

Informant’s tip is admissible evidence to extent required to show why police officer acted as he did and was at particular place at particular time, and thus defendant in prosecution for possession with intent to distribute marijuana was not deprived of constitutional right to confront one’s accusers when officer testified to discussion with informant regarding defendant’s whereabouts prior to arrest. Swindle v. State, 502 So. 2d 652, 1987 Miss. LEXIS 2313 (Miss. 1987).

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).

Ordinarily, disclosure of the identity of an informer, who is not a material witness to the guilt or innocence of the accused, is within the sound discretion of the trial court, but where the informer is an actual participant in the alleged crime, the accused is entitled to know who he is. Young v. State, 245 So. 2d 26, 1971 Miss. LEXIS 1353 (Miss. 1971).

In a prosecution for unlawful sale of marijuana, refusal of the court to require disclosure of the identity of an informer who had apparently advised police officers that they could purchase marijuana from the defendant, but who was not an active participant or an eyewitness to the offense, was not an abuse of discretion. Young v. State, 245 So. 2d 26, 1971 Miss. LEXIS 1353 (Miss. 1971).

119. – – Accomplices and codefendants, confrontation of witnesses.

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).

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).

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).

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).

120. – – Examination of witnesses generally, confrontation of witnesses.

Trial court properly denied appellant’s motion for post-conviction collateral relief because because his sentence was in not illegal due to the introduction of certified copies of his prior felony convictions; the certification of the documents indicated that the custodian of the records swore that the documents were true and correct copies, not that appellant actually committed any act, and thus, he was not deprived of his right to confrontation. Turner v. State, 262 So.3d 547, 2018 Miss. App. LEXIS 223 (Miss. Ct. App. 2018), cert. denied, 260 So.3d 800, 2019 Miss. LEXIS 41 (Miss. 2019).

Trial court did not by refusing to allow defendant to recall a lieutenant after the State’s case-in-chief because defendant and his counsel were given an opportunity to question the lieutenant during the State’s case-in-chief; defense counsel failed to request that the trial court retain the lieutenant or instruct him that he remained under subpoena and could not leave in case defense counsel recalled him. Badger v. State, 269 So.3d 1197, 2018 Miss. App. LEXIS 408 (Miss. Ct. App. 2018), cert. denied, — So.3d —, 2019 Miss. LEXIS 171 (Miss. 2019).

Defendant’s constitutional right to confront and cross-examine a witness testifying against him was not violated because the coroner’s medical-examiner investigator was allowed to testify in place of the state medical examiner as to the autopsy performed and authored by the state medical examiner as the coroner’s medical-examiner investigator both personally identified the victim’s body at the crime scene and authorized and observed the state medical examiner’s autopsy of the body; and she had intimate knowledge of the report offered at trial as she personally observed it taking place. Clark v. State, 233 So.3d 832, 2017 Miss. App. LEXIS 129 (Miss. Ct. App.), cert. denied, — So.3d —, 2017 Miss. LEXIS 518 (Miss. 2017).

Admitting the testimony of a chief medical examiner who did not perform an autopsy of a victim did not violate defendant’s confrontation right because (1) the witness gave the witness’s independent opinion and testified as an expert in forensic pathology based on various reports and evidence, and (2) the witness was cross-examined. Polk v. State, 205 So.3d 1157, 2016 Miss. App. LEXIS 258 (Miss. Ct. App.), cert. denied, 205 So.3d 1087, 2016 Miss. LEXIS 533 (Miss. 2016).

Doctor who testified about the victim’s autopsy did not violate defendant’s Confrontation Clause right as the doctor had intimate knowledge of the report and actively participated in the production of the report because the doctor authored the final autopsy report; and, although he relied on another individual’s preliminary autopsy findings, the doctor testified only to his final autopsy report, which contained his own findings and opinions. England v. State, 195 So.3d 830, 2016 Miss. App. LEXIS 14 (Miss. Ct. App. 2016), cert. dismissed, — So.3d —, 2017 Miss. LEXIS 112 (Miss. 2017).

Defendant’s convictions for possession of more than 500 grams but less than 1 kilogram of marijuana with the intent to distribute within 1,500 feet of a church, and possession of more than 10 grams but less than 30 grams of cocaine with intent to distribute within 1,500 feet of a church were proper because his right to confront witnesses against him was not violated when the circuit court prohibited defendant from calling an assistant district attorney who was present during the search of defendant’s house as a witness. The district attorney was not a necessary witness, as he had nothing of significance to offer at trial, and defendant was not prejudiced in not being permitted to call the district attorney as a witness. Thompson v. State, 33 So.3d 542, 2010 Miss. App. LEXIS 209 (Miss. Ct. App. 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).

In defendant’s criminal prosecution for murder and attempted arson, the State did not dilute defendant’s rights of confrontation and cross-examination under Miss. Const. Art. III, §§ 14, 26 by cross-examining and redirecting its witnesses. The State was permitted to redirect a witness about her statement where defense counsel placed the statement at issue by introducing it into evidence on cross-examination; the State was permitted to ask its witness leading questions about the statement. Brown v. State, 981 So. 2d 1007, 2007 Miss. App. LEXIS 806 (Miss. Ct. App. 2007), cert. denied, 981 So. 2d 298, 2008 Miss. LEXIS 222 (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 not 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).

It was not an abuse of discretion for the trial court to deny defendant’s request for recross-examination of a witness because the prosecutor’s questioning on redirect did not go beyond matters raised during cross-examination; the contents of defendant’s statement to the witness were fair game for redirect examination because on cross-examination, defense counsel asked the witness if he was “trying to hide something.” Bailey v. State, 952 So. 2d 225, 2006 Miss. App. LEXIS 393 (Miss. Ct. App. 2006), cert. denied, 2007 Miss. LEXIS 166 (Miss. Mar. 1, 2007), cert. denied, 951 So. 2d 563, 2007 Miss. LEXIS 167 (Miss. 2007).

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).

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).

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).

Defendant was not denied adequate cross-examination by fact that defense counsel was unaware until after prosecution witness had been excused of taped conversations in which witness told defendant that district attorney’s office was threatening to revoke witness’ probation if he did not testify; counsel was nonetheless able to elicit from witness the implication that his probation could be revoked if his testimony was not favorable, got witness to confess to selling cocaine, and thus clearly presented issues of witness’ involvement, motivation, and bias to jury. (Per Smith, Justice, with three Justices concurring). 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).

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).

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).

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).

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).

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).

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).

The trial court was within its discretion in denying defendant, who was represented by counsel, the right to personally cross-examine his father during an out-of-court hearing on the admissibility of certain evidence since Art. 3 § 26 did not grant to the defendant the absolute right to conduct a cross-examination where that defendant was also represented by counsel. 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).

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).

Where a witness in prosecution for manslaughter by culpable negligence in the operation of a motor car was permitted to examine his prior written statement to refresh his recollection, admission of testimony to the limited extent that the witness’ memory was refreshed by the statement and the questions of the prosecuting attorney predicated thereon did not violate this section on the ground that the written statement was given in the absence of defendant and without the privilege of cross-examination, where it was not introduced in evidence as an ex parte statement or deposition and the jury was not permitted to read, or hear the statement read, on the trial. Cutshall v. State, 203 Miss. 553, 35 So. 2d 318, 1948 Miss. LEXIS 306 (Miss. 1948).

121. – – Impeachment, confrontation of witnesses.

Trial court erred in excluding evidence of a witness’s prior nonadjudicated burglary and armed robbery arrest because it denied defendant the opportunity to fully challenge the witness’s credibility, but the error was harmless in light of the other evidence of defendant’s guilt. Ambrose v. State, 254 So.3d 77, 2018 Miss. LEXIS 326 (Miss. 2018), cert. denied, — U.S. —, 139 S. Ct. 1379, 203 L. Ed. 2d 615, 2019 U.S. LEXIS 2169 (U.S. 2019).

Trial court erred in refusing to allow defendant to cross-examine an informant about prior convictions and an arrest because favorable treatment the informant received on prior charges in exchange for his testimony was a material point that affected his credibility as a witness, and was allowable cross-examination under Miss. R. Evid. 616. Anthony v. State, 108 So.3d 394, 2013 Miss. LEXIS 7 (Miss. 2013).

Where a co-indictee testified against defendant at his capital murder trial, the trial court violated Miss. R. Evid. 609(b) by excluding the co-indictee’s prior felony convictions that were more than ten years old without conducting the balancing test under Miss. R. Evid. 403; however, the trial judge allowed the co-indictee’s most recent conviction for burglary and larceny to be introduced into evidence, which had more probative value than the older convictions. Any violation of defendant’s confrontation rights was harmless. Spurlock v. State, 13 So.3d 301, 2008 Miss. App. LEXIS 674 (Miss. Ct. App. 2008), cert. denied, 14 So.3d 731, 2009 Miss. LEXIS 343 (Miss. 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).

At trial for fondling and sexual battery of a child, there was no merit to defendant’s contention that he should have been able to impeach the child’s statements by showing that they were not corroborated by the child’s cousin, as defendant had had the opportunity to call the cousin as a witness. Hodgin v. State, 964 So. 2d 492, 2007 Miss. LEXIS 406 (Miss. 2007).

Defendant’s proffer showed that not only did a witness believe that the prosecutor’s office had the power to offer him leniency, but in fact his lawyer was working on it; that was permissible evidence of bias and interest, which defendant was entitled to show under Miss. R. Evid. 616, and without testimony about his beliefs of leniency, the jury was unable to consider if the change in the witness’s statements to police and his testimony at trial was because he hoped to ingratiate himself to the district attorney’s office. Davis v. State, 970 So. 2d 164, 2006 Miss. App. LEXIS 907 (Miss. Ct. App. 2006), cert. denied, 968 So. 2d 948, 2007 Miss. LEXIS 652 (Miss. 2007).

Any error that occurred as a result of the trial court excluding defendant’s line of questioning of 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).

Because the two witnesses admitted making the prior inconsistent statements and explained them, extrinsic evidence of their statements could not be admitted into evidence under Miss. R. Evid. 613(b); thus, defendant’s claim that he was denied the right to cross-examine the witnesses failed. Davis v. State, 970 So. 2d 164, 2006 Miss. App. LEXIS 907 (Miss. Ct. App. 2006), cert. denied, 968 So. 2d 948, 2007 Miss. LEXIS 652 (Miss. 2007).

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 with evidence of the arrest because the arrest was irrelevant to the credibility of the detective and the acts were too far removed to be of 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).

In a prosecution for selling crystal methamphetamine, the right of the defendant to confront witnesses against him was violated because 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).

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, 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 right of an accused to confront and cross-examine his accuser is so broad and fundamental as to transcend the right of a juvenile accuser to keep secret his former delinquent activity, and the refusal to permit a full cross-examination of a juvenile whose testimony implicated one defendant with possession of LSD, and who had been adjudged a juvenile delinquent, and was afraid of being returned to the training school, was error. Hamburg v. State, 248 So. 2d 430, 1971 Miss. LEXIS 1466 (Miss. 1971).

122. – – Hearsay evidence, confrontation of witnesses.

Admission of a detective’s testimony was not plain error because the jury was not exposed to inadmissible hearsay, and defendant’s rights under the Confrontation Clause were not implicated; the detective’s testimony was relevant and related to his decisionmaking in his investigatory process. Smith v. State, 258 So.3d 292, 2018 Miss. App. LEXIS 343 (Miss. Ct. App. 2018).

Defendant’s fundamental, substantive confrontation rights were not violated, because, since its inception, the right to confront one’s accuser carved out an exception for dying declarations, and the court properly admitted the victim’s statement as a dying declaration. Grindle v. State, 134 So.3d 330, 2013 Miss. App. LEXIS 535 (Miss. Ct. App. 2013), cert. denied, 133 So.3d 818, 2014 Miss. LEXIS 163 (Miss. 2014).

As a witness to defendant’s fatal shooting of a victim testified and all of the traditional constitutional protections were present, defendant’s confrontation rights were not violated by testimony from a police officer who recited the witness’s statement. Davis v. State, 130 So.3d 1141, 2013 Miss. App. LEXIS 490 (Miss. Ct. App. 2013), cert. denied, 131 So.3d 578, 2014 Miss. LEXIS 73 (Miss. 2014).

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).

None of defendant’s contentions required reversal based upon ineffective assistance of counsel where trial counsel’s decision to not request a jury instruction fell under the category of trial tactics, and the fact that defense counsel never called defendant to testify in support of an intruder defense did not constitute ineffective assistance of counsel. Neal v. State, 15 So.3d 388, 2009 Miss. LEXIS 272 (Miss. 2009), dismissed, — So.3d —, 2016 Miss. LEXIS 340 (Miss. 2016).

Any violation of defendant’s right to confrontation under U.S. Const. Amend. VI or Miss. Const. Art. 3, § 26 due to the trial court’s failure to sustain her hearsay objection was harmless because the police officer testified about whether defendant had called 911 in June 2001 to report that her fugitive son had returned to the house but defendant was convicted based on a later incident in February 2002 in which she failed to report that her son had returned to the house. Therefore, the hearsay testimony about the earlier incident was not especially probative of her intent, or lack thereof, to aid her son evade police in 2002 and there was overwhelming evidence that defendant’s conduct in the later incident conformed with the elements of the crime of accessory-after-the-fact. Young v. State, 908 So. 2d 819, 2005 Miss. App. LEXIS 445 (Miss. Ct. App. 2005).

Under Miss. R. Evid. 803(d)(2)(E), statements made between co-conspirators in the course of the furtherance of the 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).

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).

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 emotion 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).

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).

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).

123. – – Waiver, confrontation of witnesses.

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).

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).

124. Right of accused to be heard.

Defendant was not denied the right to testify in defendant’s own defense because the record did not demonstrate that defendant ever made defendant’s desire to testify known to the trial court even after the court told defendant that defendant could, contrary to the advice of counsel. Ferguson v. State, — So.3d —, 2019 Miss. App. LEXIS 600 (Miss. Ct. App. Dec. 17, 2019).

Where defendant presented nothing more than a cursory accusation that his trial counsel refused to put him on the witness stand, in disregard of defendant’s desire to testify, and defendant had not adequately populated the record with a transcript of the proceeding before the trial court from which the appellate court could make a determination whether there was any merit to his ineffective assistance accusations, defendant’s conviction was affirmed. Young v. State, 33 So.3d 1151, 2009 Miss. App. LEXIS 719 (Miss. Ct. App. 2009), cert. denied, 34 So.3d 1176, 2010 Miss. LEXIS 226 (Miss. 2010).

Defendant’s conviction for murdering his girlfriend was appropriate because, procedural bar notwithstanding, he was clearly advised of his right to testify, or not, by both his defense counsel and the trial judge. Fannings v. State, 997 So. 2d 953, 2008 Miss. App. LEXIS 790 (Miss. Ct. App. 2008).

Defendant’s attorney did not prevent defendant from testifying, but rather the attorney informed the trial court that defendant desired to testify on defendant’s own behalf; because defendant desired to testify on defendant’s own behalf, there was no need for the trial court to warn or advise defendant of the right to testify independent of counsel’s advice not to testify, and the trial court did not have to advise defendant of all the possible ill effects of testifying. Scott v. State, 965 So. 2d 758, 2007 Miss. App. LEXIS 642 (Miss. Ct. App. 2007).

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).

Defendant’s right to testify was not infringed upon in a capital murder case where defendant changed his mind and refused to do so after the state asked the trial court to rule on the admissibility of defendant’s statements made during a competency hearing; the trial judge provided defendant with a detailed explanation of the right and asked if defendant understood that he was waiving such. Ramsey v. State, 959 So. 2d 15, 2006 Miss. App. LEXIS 764 (Miss. Ct. App. 2006), cert. denied, 958 So. 2d 1232, 2007 Miss. LEXIS 588 (Miss. 2007).

In a prosecution for the sale of cocaine, the court properly advised the defendant of his right to testify, notwithstanding that the court also warned the defendant that, if he testified that he did not sell cocaine, the prosecutor could ask him questions “from now until the sun goes up and down two or three times.” Gilley v. State, 748 So. 2d 123, 1999 Miss. LEXIS 307 (Miss. 1999).

The defendant was not fully advised of his right to testify on his own behalf and, therefore, his constitutional rights were violated; he was entitled to a new trial where (1) trial counsel testified that he had talked with the defendant regarding what his testimony would be if he testified at trial, but that he could not definitively say that he had advised the defendant that he had a right to testify, and (2) the defendant definitively testified that he was never informed of his right to testify by trial counsel. Dizon v. State, 749 So. 2d 996, 1999 Miss. LEXIS 356 (Miss. 1999).

A defendant has a constitutional right to make an opening statement without impingement of his constitutional guaranty against self-incrimination; the law does not require a defendant to make a choice between proceeding pro se and exercising his constitutional right against self-incrimination. Armstead v. State, 716 So. 2d 576, 1998 Miss. LEXIS 281 (Miss. 1998).

A criminal defendant can not be prohibited from exercising a clearly established constitutional right merely because the trial judge determines that to do so will prejudice the defendant’s case. Armstead v. State, 716 So. 2d 576, 1998 Miss. LEXIS 281 (Miss. 1998).

A trial court erred in not permitting a murder defendant himself to make an opening statement even though the judge had not been forewarned that the defendant wished to make the opening statement himself. A defense attorney who is made aware by his or her client that the client wishes to personally conduct his or her own defense first has an obligation to fully advise the client of the constitutional right to represent himself or herself, and also of the responsibility and risk entailed. The defense counsel also has an obligation to inform the judge prior to exercise of the right, of the client’s desire to do so, in order to give the judge an opportunity to instruct as well as warn the defendant outside the presence of the jury of his or her rights and responsibilities. Bevill v. State, 556 So. 2d 699, 1990 Miss. LEXIS 27 (Miss. 1990).

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).

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).

Defendant was not denied his right to be heard at his sentencing as an habitual offender, where he had been present and represented by counsel throughout the entirety of his trial, had offered no evidence, and on appeal offered no indication of any evidence he would have placed before the trial court had he been given an opportunity to do so. Seely v. State, 451 So. 2d 213, 1984 Miss. LEXIS 1763 (Miss. 1984).

The denial of the right of an accused to testify in his own behalf is a violation of his constitutional right under Article 3, § 26, regardless of whether the denial stems from the refusal of the court to let the defendant testify or whether it stems from the failure of the accused’s counsel to permit him to testify. Furthermore, in a case where a defendant does not testify, before the case is submitted to the jury, the defendant should be called before the court out of the presence of the jury, and advised of his right to testify. If the defendant states he does not wish to testify, he may not be forced to take the stand; however, if he states that he wants to testify he should be permitted to do so. A record should be made of this so that no question about the defendant’s waiver of his right to testify should ever arise. Culberson v. State, 412 So. 2d 1184, 1982 Miss. LEXIS 1925 (Miss. 1982).

Where defendant requested permission to “make a statement to the jury” during argument at the guilt stage of his murder trial, the trial court’s refusal to allow such argument constituted a violation of this section. Gray v. State, 351 So. 2d 1342, 1977 Miss. LEXIS 1951 (Miss. 1977).

Action of trial court, in submitting to jury the issue of insanity at time of trial, the issue of insanity at the time of commission of the offense, and the issue of guilt or innocence, all at the same time, was not prejudicial error, where jury under proper instructions from the court found defendant to be sane at the time of trial and fully capable of making a rational defense. Williams v. State, 205 Miss. 515, 39 So. 2d 3, 1949 Miss. LEXIS 448 (Miss. 1949).

Constitutional “right of accused to be heard,” which means right to be heard at proper time, cannot be postponed to a time when it is in whole or in part ineffective, or when to avail of it entails acceptance of conditions which may not lawfully be imposed upon accused. Warren v. State, 174 Miss. 63, 164 So. 234, 1935 Miss. LEXIS 74 (Miss. 1935).

Refusal to permit defendant to testify that confession was not free and voluntary at close of State’s evidence upon preliminary inquiry as to admissibility of confession made to sheriff held error as denying defendant’s constitutional right to be heard. Warren v. State, 174 Miss. 63, 164 So. 234, 1935 Miss. LEXIS 74 (Miss. 1935).

125. Right to counsel – In general.

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, 269 So.3d 1, 2018 Miss. LEXIS 364 (Miss. 2018).

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).

Trial court did not deny a father due process by allowing him to proceed pro se at a hearing to determine the amount of his child support arrearage, because 1) after the father’s attorney had moved to withdraw, the father had 10 months to secure new counsel before the hearing, but neither did so nor requested a continuance; and 2) the trial court did not address contempt at the hearing. Reasor v. Jordan, 110 So.3d 307, 2013 Miss. LEXIS 144 (Miss. 2013).

Defendant’s conviction for felony child abuse was appropriate because his claim that his attorney was an inactive member of the bar and that defendant was unaware of the attorney’s status change, did not deprive defendant of his right to counsel. There was no question that the attorney was engaged in the practice of law during his representation of defendant and the attorney’s recent status change with The Mississippi Bar was harmless error because defendant failed to show any prejudice as a result of the attorney’s status and because such status had no effect on the jury’s determination of guilt. Henry v. State, 40 So.3d 621, 2010 Miss. App. LEXIS 47 (Miss. Ct. App. 2010).

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).

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).

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).

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).

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).

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).

This Article grants an accused the right to be heard by counsel. Watson v. State, 196 So. 2d 893, 1967 Miss. LEXIS 1502 (Miss. 1967).

The fact that some undue advantage was taken of a defendant in the course of his arraignment or trial at a time when he was not represented by counsel is not ground for his discharge or release, but only entitles him to a new trial. Allred v. State, 187 So. 2d 28, 1966 Miss. LEXIS 1340 (Miss. 1966).

The accused has a right to be heard by himself or by counsel, nor can courts require counsel, or impose counsel upon accused, except by his request. Schwartz v. State, 103 Miss. 711, 60 So. 732, 1912 Miss. LEXIS 220 (Miss. 1912).

126. – – Administrative proceedings, right to counsel.

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).

127. – – Pro se or hybrid representation, right to counsel.

Trial court did not err by failing to order a mistrial or force defendant to stop representing himself and allow his appointed counsel to take over because counsel did not claim that defendant was mentally incompetent to defend himself or that he did not knowingly or intelligently decide to act pro se. Knight v. State, 281 So.3d 898, 2019 Miss. App. LEXIS 67 (Miss. Ct. App.), cert. denied, 279 So.3d 1086, 2019 Miss. LEXIS 413 (Miss. 2019).

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), cert. denied, — U.S. —, 139 S. Ct. 1569, 203 L. Ed. 2d 731, 2019 U.S. LEXIS 2762 (U.S. 2019).

Defendant was not deprived of the right to represent himself as he knowingly accepted the appointment of defense counsel through hybrid representation because the trial court offered defendant ample opportunity to proceed pro se; the trial court questioned him several times to ensure that he understood that he could either proceed pro se or with the assistance of an attorney; and, while defendant might have previously exhibited a desire to proceed pro se, the record indicated that defendant desired to proceed with his appointed defense counsel. Clark v. State, 233 So.3d 832, 2017 Miss. App. LEXIS 129 (Miss. Ct. App.), cert. denied, — So.3d —, 2017 Miss. LEXIS 518 (Miss. 2017).

No on-the-record examination was necessary to determine whether defendant knowingly and voluntarily waived the right to counsel because he received substantive assistance from his counsel in the form of hybrid representation; even if no hybrid representation were found, the requirements of the rule that defendant knowingly and voluntarily waive the right to counsel were met as the trial court made it sufficiently clear to defendant the requirements and perils of self-representation. Wash v. State, 129 So.3d 247, 2013 Miss. App. LEXIS 763 (Miss. Ct. App. 2013).

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).

Trial court did not err in ordering defendant to proceed to trial with a court-appointed attorney since no other attorney had ever entered an appearance or filed a motion on defendant’s behalf, and appointed counsel indicated that no other attorney had ever contacted the attorney in regard to defendant’s representation; the trial court was not required to question defendant as to satisfaction with the appointed counsel in the absence of any indication that the defendant was dissatisfied with defendant’s attorney. McCoy v. State, 954 So. 2d 479, 2007 Miss. App. LEXIS 248 (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).

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).

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).

Forcing an accused, against his will, to accept a state-appointed public defender deprived the accused of his constitutional right to conduct his own defense under circumstances where (1) weeks before trial, the accused clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel, (2) the record affirmatively showed that the accused was literate, competent, and understanding, and that he was voluntarily exercising his informed free will, and (3) the trial judge warned the accused that the judge thought it was a mistake not to accept the assistance of counsel, and that the accused would be required to follow all the ground rules of trial procedure. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562, 1975 U.S. LEXIS 83 (U.S. 1975).

Under ordinary circumstances, it is elemental that one appealing from a conviction, if mentally competent, has a right to discharge his attorneys and represent himself in the Supreme Court and to have his appeal dismissed if he so desires. Tarrants v. State, 231 So. 2d 493, 1970 Miss. LEXIS 1592 (Miss. 1970).

In an appeal from a felony conviction, where the appellant filed a motion requesting that his appeal be dismissed and purporting to discharge his attorneys, and counsel of record responded to the request by raising the question whether the appellant was mentally competent to represent himself, the question of his competency was to be determined before passing on the motion, the Supreme Court would order that the trial court conduct a factual hearing after a mental examination, on the question whether the appellant was competent to represent himself in the case and to know and understand the effect of his motion to dismiss the appeal. Tarrants v. State, 231 So. 2d 493, 1970 Miss. LEXIS 1592 (Miss. 1970).

Trial courts should observe the constitutional right of defendants to be heard by self or counsel or both with meticulous care, and should submit to the jury, preliminarily, the issue of defendant’s sanity in all cases where there is a probability that defendant is incapable of making a rational defense. Williams v. State, 205 Miss. 515, 39 So. 2d 3, 1949 Miss. LEXIS 448 (Miss. 1949).

128. – – Accrual of right to counsel.

Defendant did not have a right to have counsel present at the identification because he was merely a suspect and criminal proceedings had not yet been initiated against him at the time of the show-up identification procedure. Weaver v. State, 996 So. 2d 142, 2008 Miss. App. LEXIS 582 (Miss. Ct. App. 2008).

While one’s right to counsel under Mississippi law attaches once proceedings against defendant reach accusatory stage, earlier than does federal right, defendant must show some adverse effect upon his or her ability to conduct defense before denial of right to counsel constitutes reversible error; although defendant’s right to counsel had attached under State Constitution at time of arraignment, arraignment without counsel did not severely prejudice defendant’s right to fair trial, and therefore no reversible error occurred. 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).

Once proceedings against a defendant reaches the accusatory stage, a right of counsel attaches, and, for purposes of the state constitutional right, the advent of the accusatory stage is determined by references to state law, including Mississippi Code §99-1-7 and Rule 1.04, Unif. Crim. R. Civ. Ct. Proc. Page v. State, 495 So. 2d 436, 1986 Miss. LEXIS 2516 (Miss. 1986).

129. – – Invocation of right to 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).

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).

Defendant’s conviction for felony possession of methamphetamine was appropriate in part because there was no evidence suggesting that defendant attempted to invoke his right to counsel or his right against self-incrimination during what was determined to be a voluntary statement to a police officer; each of those rights was required to be invoked. Mooney v. State, 951 So. 2d 627, 2007 Miss. App. LEXIS 135 (Miss. Ct. App. 2007).

130. – – Time of appointment, right to counsel.

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).

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).

Where defendant was arrested for unlawful possession of whisky in the county, and immediately arraigned without the presence of his attorney, and trial was set for 8:30 A. M. the next day, and his attorney, who arrived just five minutes before trial time, having been previously engaged in chancery court in another county, requested time to confer with the defendant and prepare his defense, refusal of such request and trial and conviction of defendant was erroneous as denying defendant a fair and impartial trial, notwithstanding that defendant’s principal witness was out of the state in view of statement in affidavit in support of such request that he would voluntarily appear and testify if given an opportunity to do so. Cruthirds v. State, 190 Miss. 892, 2 So. 2d 145, 1941 Miss. LEXIS 105 (Miss. 1941).

131. – – Counsel of defendant’s choosing, right to counsel.

Trial court did not err in failing to move for a continuance sua sponte or to grant a continuance at the request of the inmate because there was no proof in the record to support the inmate’s allegation that he had retained his own counsel, a proposed receipt did not state that it was for representation of the inmate’s case, and the inmate’s appointed counsel was present and ready for trial. Harris v. State, 999 So. 2d 436, 2009 Miss. App. LEXIS 13 (Miss. Ct. App. 2009).

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).

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).

132. – – Conflicts of interest, right to 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).

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).

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).

The trial court erred by not directing a mistrial on its own motion where, during defendant’s robbery trial, the state called as a witness a participant in the robbery who had already been convicted, the witness testified that the defendant’s attorney (who had also been the witness’ attorney) had destroyed evidence that would have incriminated defendant, and the attorney, being subsequently preoccupied with his own exoneration, ceased to be effective as an attorney. Johnson v. State, 332 So. 2d 420, 1976 Miss. LEXIS 1916 (Miss. 1976).

133. – – Continuances, right to counsel.

Where defendant fired his court-appointed counsel 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).

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).

Where the accused was physically unable to intelligently confer with his counsel and there was testimony of four physicians that he was too ill to stand trial, it was error to deny a motion for continuance, even though the right to grant or deny continuance is in trial court’s discretion. Eastland v. State, 223 Miss. 115, 223 Miss. 195, 78 So. 2d 127, 1955 Miss. LEXIS 369 (Miss. 1955).

On an appeal from a conviction of rape where the crime occurred on July 10, 1954, and accused was arrested July 11, 1954, and the circuit court was in regular July session and where the defendant was indicted on July 12, 1954, and judgment was rendered on July 16, 1954, the record failed to establish any abuse of discretion by trial judge in overruling a motion for continuance on the ground that there was insufficient time to prepare a defense. Robinson v. State, 223 Miss. 70, 77 So. 2d 265, 1955 Miss. LEXIS 354 (Miss.), cert. denied, 350 U.S. 851, 76 S. Ct. 91, 100 L. Ed. 757, 1955 U.S. LEXIS 553 (U.S. 1955).

That accused in prosecution for felonious assault by cutting with knife was arraigned under indictment before he had employed counsel is not ground for reversal of case when accused did not ask court to delay arraignment until he could employ counsel or claim that he would be unable to employ counsel and ask court to appoint one for him, and defendant was well represented throughout trial by attorneys. Ferrell v. State, 208 Miss. 539, 45 So. 2d 127, 1950 Miss. LEXIS 272 (Miss. 1950).

134. – – Indigent defendants, right to counsel.

County was properly denied declaratory judgment that Miss. Code Ann. §§25-32-7, and99-15-17, requiring counties to provide legal services for indigent criminal defendants violated Miss. Const. Art. III, § 26 because the county did not show specific examples of when public defenders’ legal representation fell below the objective standard of professional reasonableness. Quitman County v. State, 910 So. 2d 1032, 2005 Miss. LEXIS 438 (Miss. 2005).

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).

An indigent accused under sentence for aggravated assault would be entitled to appointment of counsel to represent him on appeal. Killingsworth v. State, 490 So. 2d 849, 1986 Miss. LEXIS 2481 (Miss. 1986), overruled in part, Turner v. State, 818 So. 2d 1186, 2001 Miss. LEXIS 146 (Miss. 2001).

A conscientious and diligently formed opinion of court-appointed counsel that indigent client’s appeal is without merit does not constitute good cause within rule allowing attorney, upon proper motion, to withdraw from representation of a client before the Mississippi Supreme Court when good cause exists. Killingsworth v. State, 490 So. 2d 849, 1986 Miss. LEXIS 2481 (Miss. 1986), overruled in part, Turner v. State, 818 So. 2d 1186, 2001 Miss. LEXIS 146 (Miss. 2001).

Where court-appointed counsel regards his indigent client’s appeal to be without merit and deems it his obligation to so state to the Mississippi Supreme Court, the full protection of accused’s rights require that accused receive a copy of counsel’s representation to the court and be furnished a reasonable opportunity to file his own comments and raise any additional points he may choose. Killingsworth v. State, 490 So. 2d 849, 1986 Miss. LEXIS 2481 (Miss. 1986), overruled in part, Turner v. State, 818 So. 2d 1186, 2001 Miss. LEXIS 146 (Miss. 2001).

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).

135. – – Accessibility of counsel to defendant, 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).

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).

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); Tate v. State, 192 So. 2d 923, 1966 Miss. LEXIS 1269 (Miss. 1966).

136. – – Informants, right to counsel.

Evidence obtained through two informants was improperly admitted, as the informants were acting as agents for the State when they procured incriminating statements from defendant, who had invoked his right to counsel. Blakeney v. State, 236 So.3d 11, 2017 Miss. LEXIS 434 (Miss. 2017).

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 arson defendant, whose right to counsel had attached, had not waived his right to assistance of counsel incident to interrogation, where, at the time he made self-incriminating statements, he had no knowledge or way of knowing that he was being interrogated by an informant, wearing a concealed microphone, who was acting for law enforcement officers, and that his statements were being monitored and recorded, and, since, defendant’s state constitutional rights were violated, the admission of tapes containing the incriminating statements in evidence, over defendant’s objection, constituted reversible error. Page v. State, 495 So. 2d 436, 1986 Miss. LEXIS 2516 (Miss. 1986).

137. – – 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).

138. – – Lineups, right to 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).

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).

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).

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).

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).

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).

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 the 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).

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 U.S. 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).

139. – – Parole and probation revocation proceedings, right to counsel.

Pursuant to Miss. Const. Art. 3, § 26, defendant charged with a violation of post-release supervision was not entitled to counsel at his revocation hearing because, apart from the fact that defendant never requested counsel prior to or during his hearing, he admitted the violations, so his case was not particularly complex. Yance v. State, 30 So.3d 370, 2010 Miss. App. LEXIS 82 (Miss. Ct. App. 2010).

Post-conviction relief was properly denied in a case involving a probation revocation because appellant inmate did not have the right to counsel since the issues were not complex, and no request for counsel was made. It was noted that the inmate had admitted to violating his probation. Silliman v. State, 8 So.3d 256, 2009 Miss. App. LEXIS 115 (Miss. Ct. App. 2009).

Denial of the inmate’s motion for post-conviction relief was appropriate because his due process rights were not violated by the failure to appoint counsel for him at his probation revocation hearing. The issues relevant to his probation revocation were not complex nor were they difficult to present; thus, the inmate had no right to counsel. Staten v. State, 967 So. 2d 678, 2007 Miss. App. LEXIS 729 (Miss. Ct. App. 2007), cert. denied, 984 So. 2d 277, 2008 Miss. LEXIS 294 (Miss. 2008).

Where a probation revocation case was not complex since defendant admitted violating the terms of such, and the hearing did not involve any new felonies, it was not error to refuse to appoint counsel. Coleman v. State, 971 So. 2d 637, 2007 Miss. App. LEXIS 420 (Miss. Ct. App. 2007), cert. denied, 2007 Miss. LEXIS 681 (Miss. Dec. 6, 2007), cert. denied, 2007 Miss. LEXIS 684 (Miss. Dec. 6, 2007), cert. denied, 973 So. 2d 244, 2007 Miss. LEXIS 686 (Miss. 2007).

Post-conviction relief was denied in a case where a portion of a suspended sentence was revoked under Miss. Code Ann. §47-7-37 because there was no due process violation since the evidence relied upon was listed, there was no double jeopardy violation since the original sentence was reinstated, and counsel was not required since the case was not complex. Pruitt v. State, 953 So. 2d 302, 2007 Miss. App. LEXIS 203 (Miss. Ct. App. 2007).

Where appellant was convicted of two counts of selling a controlled substance, his sentence was suspended during five years of probation, and appellant’s probation was later revoked when he was convicted of selling marijuana; appellant was not entitled to appointed counsel for the probation revocation hearing, as he presented no evidence that the probation revocation required counsel or that the court denied his request for counsel. Sanders v. State, 942 So. 2d 298, 2006 Miss. App. LEXIS 853 (Miss. Ct. App. 2006).

Postconviction 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).

140. – – Post-conviction proceedings, right to counsel.

Defendant’s motion to dismiss his appellate counsel was granted, as the trial judge informed him of his constitutional rights and the perils of self-representation, and he stated unequivocally that he desired to act as his own attorney. 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).

Inmate’s right to counsel under Miss. Const. Art. III, § 26 was not denied, where the inmate argued that the inmate was denied counsel at the evidentiary hearing on the inmate’s postconviction relief petition; the inmate had no right to counsel under the Miss. Const. Art. III, § 26, and it was within the trial judge’s discretion under Miss. Code Ann. §99-39-23(1) whether to appoint counsel. Putnam v. State, 877 So. 2d 468, 2003 Miss. App. LEXIS 1205 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 861 (Miss. 2004).

Inmate was not denied effective assistance in a postconviction 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).

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).

141. – – Waiver, right to counsel.

Defendant’s claim that the trial court allowed him to proceed pro se without providing adequate warnings about the dangers and disadvantages of self-representation was incorrect because the trial judge made defendant aware multiple times that proceeding pro se was unadvisable, that defendant would not receive special treatment, and that defendant had to follow all of the technical rules of substantive law, criminal procedure, and evidence; and defendant knowingly disregarded the judge’s admonition with eyes open and proceeded to trial, representing himself. Fairley v. State, 275 So.3d 1012, 2019 Miss. LEXIS 180 (Miss. 2019), cert. denied, — U.S. —, 140 S. Ct. 1241, 206 L. Ed. 2d 229, 2020 U.S. LEXIS 892 (U.S. 2020).

Defendant did not forfeit his right to counsel by his conduct of disparaging his court-appointed attorney and filing a bar complaint against him, and therefore he was denied his constitutional right to counsel when he was forced to proceed without one, where the record did not reflect that he was warned that he might waive the right to counsel by persisting in a course of conduct as required by Miss. Unif. Cir. & Cty. R. 8.05. McCollum v. State, 186 So.3d 948, 2016 Miss. App. LEXIS 94 (Miss. Ct. App. 2016).

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).

Defendant was not denied the constitutional right to counsel because, through a series of events, defendant either failed to retain counsel, failed to keep defendant’s retained counsel, lost defendant’s appointed counsel due to a withdrawal, or rejected defendant’s appointed counsel. Moreover, when the circuit court thoroughly questioned defendant regarding defendant’s understanding of defendant’s right to counsel, defendant affirmatively stated that defendant wished self-representation at trial. Gibbs v. State, 141 So.3d 1, 2013 Miss. App. LEXIS 856 (Miss. Ct. App. 2013), cert. dismissed, 146 So.3d 981, 2014 Miss. LEXIS 447 (Miss. 2014).

Defendant was not denied his right to counsel because the deputy explained the waiver of rights form to defendant before he signed it and told defendant several times that he had a right to a lawyer. It was defendant who requested to speak with an officer and, ultimately, confessed to the crime and he appeared to understand the waiver of rights form which he signed. Wilson v. State, 923 So. 2d 1039, 2005 Miss. App. LEXIS 707 (Miss. Ct. App. 2005), cert. denied, 927 So. 2d 750, 2006 Miss. LEXIS 151 (Miss. 2006).

Trial court erred when it denied defendant his right to self-representation because even though a psychiatric examination found defendant to be operating in the range of low to borderline intellectual function, the record showed that he was competent to assert or waive his constitutional rights, and that he made an unequivocal request to represent himself at his trial for armed robbery, kidnapping, and burglary. Coleman v. State, 914 So. 2d 1254, 2005 Miss. App. LEXIS 906 (Miss. Ct. App. 2005).

Defendant waived his right to counsel under Miss. Const. Art. III, § 26 when he reinitiated communication with police a few days after he had said he should speak with an attorney before questioning, as the right of counsel could be waived and defendant was not coerced into making the statements implicating himself in murder that followed the waiver of his right to counsel. 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 had no foundation to claim that he did not understand and was not thoroughly explained his rights involving representation and self-representation where the trial judge adequately informed him of his constitutional right to represent himself as well as the dangers and responsibilities of self-representation and, furthermore, he had been granted a continuance in order to find new counsel six months prior to the trial. Davis v. State, 811 So. 2d 346, 2001 Miss. App. LEXIS 47 (Miss. Ct. App. 2001).

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).

142. Ineffectiveness of counsel – In general.

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).

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).

Any claim of ineffective assistance of counsel was without merit because there was no supporting affidavit other than one from appellant. Collier v. State, 112 So.3d 1088, 2013 Miss. App. LEXIS 221 (Miss. Ct. App. 2013).

Alleged deficiencies of counsel were not based on facts fully apparent from the record, and were more appropriate for post-conviction review. Keithley v. State, 111 So.3d 1202, 2013 Miss. LEXIS 161 (Miss. 2013).

Defendant’s conviction for murder was appropriate because he failed to prove that he received the ineffective assistance of counsel. Despite contacting a potential witness after trial, there was no evidence to show that the potential witness had anything to contribute to defendant’s case. Williams v. State, 53 So.3d 761, 2009 Miss. App. LEXIS 947 (Miss. Ct. App. 2009), rev'd, 53 So.3d 734, 2010 Miss. LEXIS 590 (Miss. 2010).

Inmate failed to prove any instance of deficiency on the part of his counsel because the inmate offered only his own statements alleging deficiency on the part of his counsel and such allegations were directly contradicted in his sworn plea petition and his statements made under oath in which the inmate agreed that counsel advised him of the elements of both crimes and that counsel met his expectations in all aspects of his representation. Willis v. State, 17 So.3d 1162, 2009 Miss. App. LEXIS 616 (Miss. Ct. App. 2009).

In a case involving the possession of precursors used in the manufacture of a controlled substance, defendant failed to show that he received ineffective assistance of counsel because he did not assert any facts or legal authority in support of his claim that his attorney’s failure to obtain a bond was improper. Fillyaw v. State, 10 So.3d 986, 2009 Miss. App. LEXIS 246 (Miss. Ct. App. 2009).

Court could not say that defendant’s trial counsel was deficient in failing to raise the issues that defendant raised in his post-conviction motion because there was no merit to any of the issues raised by defendant in his post-conviction motion which included challenges to his guilty plea and to his indictment. Harris v. State, 5 So.3d 1127, 2008 Miss. App. LEXIS 477 (Miss. Ct. App. 2008), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 181 (Miss. 2009).

Defendant’s allegation of ineffective assistance of counsel was without merit because defendant admitted that he committed second degree arson in violation of Miss. Code Ann. §97-17-5 (Rev. 2006) and his previous convictions properly subjected him to sentence enhancement under Miss. Code Ann. §99-19-83 (Rev. 2000). Hughes v. State, 989 So. 2d 434, 2008 Miss. App. LEXIS 464 (Miss. Ct. App. 2008).

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).

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).

Appellant inmate’s motion for post-conviction relief was properly denied because the inmate could not demonstrate that, in allowing appellee State to amend an indictment to charge him as a habitual offender, the performance of his counsel was deficient because the inmate received a favorable recommendation from the State in exchange for his plea, the record indicated that the inmate signed a written waiver acknowledging that he was pleading guilty as a habitual offender under the amended indictment, and the circuit judge confirmed that fact with the inmate in their plea colloquy before he allowed the inmate to enter his guilty plea. Jones v. State, 994 So. 2d 829, 2008 Miss. App. LEXIS 227 (Miss. Ct. App.), cert. denied, 998 So. 2d 1010, 2008 Miss. LEXIS 659 (Miss. 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).

Defendant’s ineffective assistance of counsel argument was without merit because defendant offered no evidence other than defendant’s own allegations that defendant’s counsel’s performance was deficient, and had no proof that the outcome would have been different had counsel conducted an investigation. 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).

Motion for post-conviction relief was properly summarily dismissed because defendant failed to show that his original counsel rendered ineffective assistance of counsel by transferring the case due to either a lack of experience or personal reasons; moreover, advice that was given to the family was not ineffective since defendant was told to plead not guilty. Edge v. State, 962 So. 2d 81, 2007 Miss. App. LEXIS 461 (Miss. Ct. App. 2007).

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).

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).

Defendant’s counsel was not ineffective: (1) in failing to offer a jury instruction on defining reasonable doubt because the practice in Mississippi was to refuse to give a jury instruction on reasonable doubt; or (2) in failing to object and raise in a motion for new trial the failure of the trial court to allow a witness to testify because, although her testimony might have been useful, it would have been cumulative to other evidence. Chandler v. State, 967 So. 2d 47, 2006 Miss. App. LEXIS 791 (Miss. Ct. App. 2006), cert. denied, 966 So. 2d 172, 2007 Miss. LEXIS 595 (Miss. 2007).

Indictment charging appellant with selling of cocaine was not required to allege the weight of the controlled substance, because it was not an element of the crime defined in Miss. Code Ann. §41-29-139(a)(1); there was no merit to appellant’s claim that counsel was ineffective because of flaws in the indictment. Hammond v. State, 938 So. 2d 375, 2006 Miss. App. LEXIS 690 (Miss. Ct. App. 2006).

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).

Appellate court affirmed defendant’s conviction for sexual battery as sufficient evidence existed to convict defendant and defendant only generally alleged that his attorney’s performance was deficient. Curry v. State, 943 So. 2d 78, 2006 Miss. App. LEXIS 548 (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).

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).

Denial of the inmate’s petition for post-conviction relief was appropriate where his counsel was not ineffective because there was no double jeopardy violation and the indictment against him was valid and proper. Ramage v. State, 914 So. 2d 274, 2005 Miss. App. LEXIS 772 (Miss. Ct. App. 2005).

Counsel was not ineffective where the defendant claimed he received ineffective assistance of counsel because his attorney filed a motion for continuance without defendant’s knowledge or permission, failed to pursue defendant’s right to a speedy trial, failed to respond to the State’s motion in limine to exclude character evidence of the victim, failed to submit a limiting instruction to the jury regarding defendant’s prior felony conviction, and failed to file a motion to sever his murder charge from his charge of possessing a firearm. The appellate court held that the right to effective counsel did not entitle the defendant to an attorney who made no mistakes at trial. Jenkins v. State, 912 So. 2d 165, 2005 Miss. App. LEXIS 705 (Miss. Ct. App. 2005).

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).

Trial counsel was not ineffective where defendant argued counsel was ineffective due to counsel’s use of prescription morphine–however, the bare allegation that defense counsel was taking morphine by prescription was insufficient, in and of itself, to constitute a claim of ineffective assistance of counsel, and defendant presented no specific instance in which counsel’s performance was deficient due to his alleged use of morphine, nor was any instance clear from the record. Stanley v. State, 904 So. 2d 1127, 2004 Miss. App. LEXIS 973 (Miss. Ct. App. 2004).

Defense counsel’s actions were found to be trial strategy where defendant argued counsel was ineffective for failure to interview a list of potential defense witnesses which defendant provided and failing to gather a copy of the victim’s criminal record in order to impeach his testimony at trial. Harris v. State, 892 So. 2d 830, 2004 Miss. App. LEXIS 978 (Miss. Ct. App. 2004).

Inmate’s counsel was not ineffective in allowing the State to proceed against him on an indictment with the incorrect name; once the inmate’s counsel informed the court of the inmate’s correct name, the district attorney made a motion in open court to amend the inmate’s indictment. Neal v. State, 879 So. 2d 1111, 2004 Miss. App. LEXIS 747 (Miss. Ct. App. 2004).

On review of defendant’s conviction for two counts of sexual battery and one count of conspiracy to batter, defendant failed to prove that his attorney was ineffective for failing to impeach the State’s witness; failing to conduct an independent investigation; failing to subpoena witnesses; or failing to raise defendant’s speedy trial claim. Norris v. State, 893 So. 2d 1071, 2004 Miss. App. LEXIS 806 (Miss. Ct. App. 2004), cert. denied, 893 So. 2d 1061, 2005 Miss. LEXIS 122 (Miss. 2005).

In defendant’s postconviction relief action the record indicated that defendant’s counsel brought forward evidence that, under the circumstances existing at the time of the trial, was sufficient to demonstrate that defendant was incompetent to stand trial and/or less culpable for the murders. Counsel’s performance as to the issue of mental retardation was not to be evaluated in the light of Atkins v. Virginia, where the United States Supreme Court held that imposition of the death penalty on mentally retarded inmates constituted cruel and unusual punishment, where Atkins was decided after defendant’s trial and where the Mississippi Supreme Court had found on direct appeal that defendant was competent to stand trial. Snow v. State, 875 So. 2d 188, 2004 Miss. LEXIS 669 (Miss. 2004).

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).

Denial of postconviction 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 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).

The defendant could not assert ineffective assistance of counsel based on his own incompetence to represent himself where the record reflected that the trial judge forewarned the defendant of the dangers and responsibilities of self-representation and the defendant chose to ignore those warnings and proceed on his own behalf; it was far too late to argue that he lacked the legal knowledge to represent himself. Davis v. State, 811 So. 2d 346, 2001 Miss. App. LEXIS 47 (Miss. Ct. App. 2001).

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).

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 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 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).

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).

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).

The right to counsel in a criminal prosecution is not illusional theory but is a genuine positive command without which due process of law is impossible, and when a case has progressed to the point where it is apparent or should be apparent that the attorney for the defendant is either incompetent or is doing nothing to represent the interest of the defendant, the court must take such appropriate action as may appear necessary to insure the defendant a fair trial, such as appointing additional counsel or granting a new trial. Mid-State Homes, Inc. v. Zumbro, 229 So. 2d 53, 1969 Miss. LEXIS 1232 (Miss. 1969).

143. – – Waiver of issue, ineffectiveness 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), cert. denied, — U.S. —, 139 S. Ct. 1569, 203 L. Ed. 2d 731, 2019 U.S. LEXIS 2762 (U.S. 2019).

Defendant’s petition for postconviction relief was properly denied because defendant’s guilty plea waived defendant’s constitutional rights against self-incrimination and to have each element of the offense proved beyond a reasonable doubt, and defendant failed to show that trial counsel was ineffective in failing to object to the State’s evidence and to suppress defendant’s statements. Estes v. State, 120 So.3d 429, 2013 Miss. App. LEXIS 64 (Miss. Ct. App.), cert. denied, 119 So.3d 328, 2013 Miss. LEXIS 454 (Miss. 2013).

Because an inmate’s claims in his motion for post-conviction relief that his appellate counsel was ineffective were decided on direct appeal, those issues were procedurally barred from appellate review by the doctrine of res judicata; the inmate’s claim that his appellate counsel failed to cite his trial counsel’s error in not litigating his claim of an illegal search and seizure of his vehicle was procedurally barred because the inmate failed to raise the claim of illegal search and seizure during the trial and on direct appeal. Lattimore v. State, 37 So.3d 678, 2010 Miss. App. LEXIS 50 (Miss. Ct. App. 2010).

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).

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).

In a postconviction 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).

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).

144. – – Factors considered, ineffectiveness 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).

Defendant’s claim of ineffective assistance of counsel was without merit because counsel had the authority to represent defendant in all matters before the court, including the filing of motions for continuance; when the attorney signed the documents that defendant alleged were forged, the attorney clearly noted that the attorney was signing as counsel on defendant’s behalf; and sufficient pretrial discovery and investigation were conducted. Avery v. State, 95 So.3d 765, 2012 Miss. App. LEXIS 507 (Miss. Ct. App. 2012), cert. denied, 109 So.3d 567, 2013 Miss. LEXIS 122 (Miss. 2013).

Defendant’s conviction for felony child abuse was appropriate because he failed to prove that he received the ineffective assistance of counsel. In part, defendant’s claims that his attorney was physically infirm and lacked the stamina required to represent a criminal defendant was without merit; there was no evidence in the record to show that the attorney’s need to sit instead of stand prejudiced the defense in any way. Henry v. State, 40 So.3d 621, 2010 Miss. App. LEXIS 47 (Miss. Ct. App. 2010).

Defendant’s conviction for felony child abuse was appropriate because he failed to prove that he received the ineffective assistance of counsel. In part, defendant’s contention that his attorney did not prepare a proper defense because the attorney made certain assertions during opening statements that were not proven by the evidence presented at trial was without merit; it was unclear from the record that the assertions amount to the attorney’s lack of preparation and defendant failed to prove that the outcome of the trial was prejudiced by the comments, especially in light of the overwhelming weight of evidence against defendant. Henry v. State, 40 So.3d 621, 2010 Miss. App. LEXIS 47 (Miss. Ct. App. 2010).

Defendant’s conviction for murder was appropriate because he failed to prove that he received the ineffective assistance of counsel. Counsel gave numerous reasons for his decision to not request a transfer of venue and he stated that he discussed that strategy with defendant and his family; thus, defendant failed to show that his counsel was deficient for not requesting a change of venue. Williams v. State, 53 So.3d 761, 2009 Miss. App. LEXIS 947 (Miss. Ct. App. 2009), rev'd, 53 So.3d 734, 2010 Miss. LEXIS 590 (Miss. 2010).

Defendant’s conviction for murder was appropriate because he failed to prove that he received the ineffective assistance of counsel. Although defendant argued that his counsel erred in allowing a death certificate to be admitted, there was no indication that a death certificate had actually been admitted; therefore, defendant’s contention was without merit. Williams v. State, 53 So.3d 761, 2009 Miss. App. LEXIS 947 (Miss. Ct. App. 2009), rev'd, 53 So.3d 734, 2010 Miss. LEXIS 590 (Miss. 2010).

Defendant’s conviction for murder was appropriate because he failed to prove that he received the ineffective assistance of counsel. There was no merit to defendant’s contention that trial counsel was deficient for failing to seek out the victim’s medical records; to date, no medical records had been produced and therefore, there is no showing that the records would have provided anything of use to defendant. Williams v. State, 53 So.3d 761, 2009 Miss. App. LEXIS 947 (Miss. Ct. App. 2009), rev'd, 53 So.3d 734, 2010 Miss. LEXIS 590 (Miss. 2010).

Denial of appellant’s, an inmate’s, motion for postconviction relief was appropriate because he failed to prove that he received the ineffective assistance of counsel at trial and on direct appeal. The record demonstrated that the inmate’s counsel investigated the case and was prepared for the trial and none of counsel’s alleged errors or deficiencies substantially affected the outcome of the trial. Robert v. State, 2009 Miss. App. LEXIS 747 (Miss. Ct. App. Nov. 3, 2009), op. withdrawn, sub. op., 52 So.3d 1233, 2011 Miss. App. LEXIS 45 (Miss. Ct. App. 2011).

Denial of appellant’s, an inmate’s, petition for postconviction relief was appropriate because his allegation of ineffective assistance of counsel was without merit. During his plea hearing, he stated that he had not been promised anything, coerced, or threatened by anyone into entering his plea and he testified that he was satisfied with counsel’s performance; additionally, he acknowledged that he understood that by entering a guilty plea that he was admitting to the facts as read from the indictment and thus, his guilty plea was entered voluntarily and knowingly. Jordan v. State, 21 So.3d 697, 2009 Miss. App. LEXIS 756 (Miss. Ct. App. 2009).

Denial of appellant’s, an inmate’s, motion for postconviction relief was proper because she failed to prove that she received the ineffective assistance of counsel. At her plea hearing, the inmate stated that she was fully informed of the charges against her, that she wished to plead guilty, and that she was satisfied with the services that were provided by her attorney. Harding v. State, 17 So.3d 1129, 2009 Miss. App. LEXIS 554 (Miss. Ct. App. 2009).

Defendant’s conviction for armed robbery and the denial of his motion for a new trial were both proper because defendant failed to prove that he received the ineffective assistance of counsel in that he failed to demonstrate how any alleged deficiencies on the part of his counsel prejudiced the defense. Defendant’s own statement and that of his half-sister were sufficient to prove the State’s case of attempted armed robbery. McClendon v. State, 17 So.3d 184, 2009 Miss. App. LEXIS 550 (Miss. Ct. App. 2009).

Inmate’s contentions did not raise sufficient questions of fact regarding his ineffective assistance counsel claim to warrant an evidentiary hearing; although the inmate claimed his attorney failed to investigate the possibility that the inmate was having mental problems, the attorney was unable to locate the inmate’s psychiatrist or his medical records, and the inmate’s affidavits did not pertain to his mental health. Gaddy v. State, 21 So.3d 677, 2009 Miss. App. LEXIS 236 (Miss. Ct. App. 2009), cert. denied, 559 U.S. 1078, 130 S. Ct. 2115, 176 L. Ed. 2d 741, 2010 U.S. LEXIS 3422 (U.S. 2010).

Denial of appellant’s, an inmate’s, motion for postconviction relief was appropriate because his indictment was not faulty for its failure to contain a provision for his eligibility for parole since it was not an essential element of the crime or had no effect on jurisdiction. His attorney was not ineffective for failing to object to a valid indictment. Bowling v. State, 12 So.3d 607, 2009 Miss. App. LEXIS 395 (Miss. Ct. App. 2009).

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).

Inmate’s contentions did not raise sufficient questions of fact regarding his ineffective assistance counsel claim to warrant an evidentiary hearing; although the inmate claimed his attorney failed to investigate the possibility that the inmate was having mental problems, the attorney was unable to locate the inmate’s psychiatrist or his medical records, and the inmate’s affidavits did not pertain to his mental health. Gaddy v. State, 21 So.3d 677, 2009 Miss. App. LEXIS 236 (Miss. Ct. App. 2009), cert. denied, 559 U.S. 1078, 130 S. Ct. 2115, 176 L. Ed. 2d 741, 2010 U.S. LEXIS 3422 (U.S. 2010).

Attorney had not rendered ineffective assistance in failing to present mitigation evidence of a defendant, who was convicted for capital murder and sentenced to death, because the defendant did not suffer prejudice; if the evidence of the defendant’s mental and educational problems, history of substance abuse, and troubled childhood had been admitted, the details of the defendant’s criminal activity and drug use also would have been admitted. Doss v. State, 2008 Miss. LEXIS 608 (Miss. Dec. 11, 2008), op. withdrawn, sub. op., 19 So.3d 690, 2009 Miss. LEXIS 510 (Miss. 2009).

Defendant’s conviction for murdering his girlfriend was appropriate because he failed to prove that he received the ineffective assistance of counsel. The fact that the jury deliberated approximately 16 minutes before finding him guilty did not equate with ineffective assistance of counsel; a more probable explanation was that the overwhelming evidence against defendant, paired with proper jury instructions, made the jury’s decision clear. Fannings v. State, 997 So. 2d 953, 2008 Miss. App. LEXIS 790 (Miss. Ct. App. 2008).

Performance of appellant’s counsel was not deficient and thus not ineffective because (1) counsel did not have to object to the amendment of the indictment since the indictment was properly amended to reflect appellant’s status as a habitual offender; (2) the circuit court clearly and adequately informed appellant of the consequences of his guilty plea before accepting it; and (3) appellant’s counsel apparently had another pending felony charge against appellant dismissed as a result of his voluntary plea. Spencer v. State, 994 So. 2d 878, 2008 Miss. App. LEXIS 668 (Miss. Ct. App. 2008).

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).

Defendant’s ineffective assistance of counsel claim on direct appeal was dismissed because (1) the record evinced that defendant was represented by two experienced defense attorneys; (2) the decisions of which defendant complained fell within the presumption of trial strategy and reasonable professional assistance; and (3) the failure to request an accident jury instruction was not prejudicial because it would have been denied had it been requested. Staten v. State, 989 So. 2d 938, 2008 Miss. App. LEXIS 76 (Miss. Ct. App.), cert. denied, 993 So. 2d 832, 2008 Miss. LEXIS 400 (Miss. 2008).

Defendant’s claim of ineffective assistance of counsel failed, as there was no evidence that counsel improperly coerced defendant to plead guilty (at most, counsel may have given defendant a blunt assessment of his chances of success at trial, which may have led in part to defendant’s decision to plead guilty), and even if defense counsel was deficient in not calling certain alibi witnesses provided by defendant, defendant had failed to show any prejudice resulting from that deficiency. Jones v. State, 970 So. 2d 1316, 2007 Miss. App. LEXIS 830 (Miss. Ct. App. 2007).

Two defendants’ convictions for depraved-heart murder were appropriate because they failed to prove that they received the ineffective assistance of counsel since, although the first defendant stated that his counsel followed or adopted very action taken by the second defendant’s counsel, the first defendant did not argue or state anything else that proved that his counsel was ineffective; additionally, the second attorney’s failure to object to alleged hearsay used in the state’s opening statement was deemed to have been trial strategy. McDowell v. State, 984 So. 2d 1003, 2007 Miss. App. LEXIS 669 (Miss. Ct. App. 2007), cert. denied, 984 So. 2d 277, 2008 Miss. LEXIS 328 (Miss. 2008).

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).

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).

Performance of defendant’s counsel was not deficient and he was not prejudice in any way because: (1) the failure to file a motion demanding a speedy trial could not be said to have affected the outcome of the trial because the evidence obtained by the delay was arguably exculpatory since no gun shot residue was found on the steering wheel of the car defendant was driving the night of the shooting; (2) decisions to call witnesses, ask certain questions, or make particular objections fell within the purview of the attorney’s trial strategy and could not give rise to an ineffective assistance of counsel claim; and (3) the jury instruction regarding the two-party theory was legally sufficient. Boone v. State, 964 So. 2d 512, 2006 Miss. App. LEXIS 894 (Miss. Ct. App. 2006), cert. denied, 964 So. 2d 508, 2007 Miss. LEXIS 515 (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).

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).

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).

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).

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 postconviction relief without an evidentiary hearing was proper pursuant to Miss. Code Ann. §99-39-19 because his claim that his counsel was ineffective was without merit. The inmate did not suggest that mitigating evidence was available and did not identify a witness or situation that might have convinced the judge to impose a lighter sentence. McNabb v. State, 915 So. 2d 478, 2005 Miss. App. LEXIS 609 (Miss. Ct. App. 2005).

Defendant’s murder conviction was appropriate where her counsel was not ineffective because he participated in an extensive voir dire of the jury and in the cross-examination of the State’s witnesses. Further, he called four witnesses on behalf of defendant who supported her theory of the case. Lyle v. State, 908 So. 2d 189, 2005 Miss. App. LEXIS 520 (Miss. Ct. App. 2005).

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).

While defendant’s trial counsel’s performance might have been less than perfect and lacking in some respects, there was nothing in the record that proved that his trial counsel’s performance was not in the “wide range of reasonable professional assistance.” There was nothing in the record to support defendant’s allegations that trial counsel failed to perform any pretrial investigation or failed to interview potential witnesses, and based on documents not contained in the record but included in defendant’s record excerpts, a reasonable inference could be drawn that trial counsel either requested some discovery or some discovery was voluntarily tendered to him by the State. Dunigan v. State, 915 So. 2d 1063, 2005 Miss. App. LEXIS 301 (Miss. Ct. App.), cert. denied, 921 So. 2d 1279, 2005 Miss. LEXIS 793 (Miss. 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, and 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 given that the inmate supplied little or nothing of what an effective attorney performing a proper investigation would or should have found by the 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).

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).

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).

Where the inmate claimed in a postconviction 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 failed to argue that these failures had resulted in prejudice. Battaya v. State, 861 So. 2d 364, 2003 Miss. App. LEXIS 1201 (Miss. Ct. App. 2003).

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).

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).

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).

145. – – Speedy trial, ineffectiveness of counsel.

Post-conviction relief was denied because appellant inmate did not show that he received ineffective assistance of counsel due to a failure to file a constitutional speedy trial motion because there was no showing that it would have been successful; even though the reason for an 8-month delay weighed in the inmate’s favor, the inmate did not show that he was prejudiced, other than due to his pretrial incarceration. Moreover, there was no evidence that the inmate had asserted the speedy trial right. Oliver v. State, 20 So.3d 16, 2009 Miss. App. LEXIS 202 (Miss. Ct. App.), cert. denied, 19 So.3d 82, 2009 Miss. LEXIS 522 (Miss. 2009).

146. – – Trial strategy, ineffectiveness of counsel.

Defendant’s allegation of ineffective assistance of counsel was without foundation because (1) defendant’s grounds concerned trial strategy, which was within counsel’s discretion, and counsel’s choices were not unreasonable and were sound trial strategy that could only have helped defendant; and (2) defendant failed to demonstrate how any of defendant’s grounds for defendant’s ineffective assistance of counsel claim had a prejudicial effect. Thus, defendant failed to show that defendant was denied a fair trial. Pittman v. State, 121 So.3d 253, 2013 Miss. App. LEXIS 153 (Miss. Ct. App. 2013).

On appeal from his conviction for the possession of at least 2, but less than 10, dosage units of hydrocodone, the record before the appellate court was not adequate to determine whether counsel’s decision to allow a statement into evidence constituted ineffective assistance of counsel because it could have been argued that counsel might have agreed to the admission of the statement with the hope that the jury would conclude that the charges against defendant were not filed not because he actually possessed the contraband, but because he refused to work as a confidential informant for the authorities. Sistrunk v. State, 48 So.3d 557, 2010 Miss. App. LEXIS 159 (Miss. Ct. App.), cert. denied, 49 So.3d 1139, 2010 Miss. LEXIS 629 (Miss. 2010).

On appeal from his conviction for the possession of at least 2, but less than 10, dosage units of hydrocodone, the record before the appellate court was not adequate to determine whether counsel’s decision to allow a statement into evidence constituted ineffective assistance of counsel because it could have been argued that counsel might have agreed to the admission of the statement with the hope that the jury would conclude that the charges against defendant were not filed not because he actually possessed the contraband, but because he refused to work as a confidential informant for the authorities. Sistrunk v. State, 48 So.3d 557, 2010 Miss. App. LEXIS 159 (Miss. Ct. App.), cert. denied, 49 So.3d 1139, 2010 Miss. LEXIS 629 (Miss. 2010).

Defendant’s conviction for felony child abuse was appropriate because he failed to prove that he received the ineffective assistance of counsel. In part, counsel’s choice of whether or not to argue a motion was trial strategy and it was possible that defendant had already made the decision that he would not testify; if so, the attorney’s argument in the Peterson hearing would have been unnecessary. Henry v. State, 40 So.3d 621, 2010 Miss. App. LEXIS 47 (Miss. Ct. App. 2010).

Defendant’s conviction for felony child abuse was appropriate because he failed to prove that he received the ineffective assistance of counsel. In part, counsel’s choice of whether or not to file certain motions, call certain witnesses, ask certain questions, or make certain objections fell within the ambit of trial strategy; the attorney most likely wished to avoid drawing further attention to the photographs referenced by the prosecutor that depicted the severity of the victim’s injuries. Henry v. State, 40 So.3d 621, 2010 Miss. App. LEXIS 47 (Miss. Ct. App. 2010).

Defendant’s conviction for murder was appropriate because he failed to prove that he received the ineffective assistance of counsel. Counsel explained his reason for not further developing evidence of defendant’s medical history and the issue at trial was whether defendant killed the victim; to date, nothing had been introduced to show what defendant’s medical records would have shown in his defense. Williams v. State, 53 So.3d 761, 2009 Miss. App. LEXIS 947 (Miss. Ct. App. 2009), rev'd, 53 So.3d 734, 2010 Miss. LEXIS 590 (Miss. 2010).

Defendant’s conviction for murder was appropriate because he failed to prove that he received the ineffective assistance of counsel. Counsel testified that he discussed whether to introduce an online chat transcript with defendant and that the reason it was not introduced was that in the transcript, the victim said that she could not kill herself; defendant had alleged that the victim killed herself in a suicide pact and that he did not murder her. Williams v. State, 53 So.3d 761, 2009 Miss. App. LEXIS 947 (Miss. Ct. App. 2009), rev'd, 53 So.3d 734, 2010 Miss. LEXIS 590 (Miss. 2010).

In terms of whether or not trial counsel was ineffective for entering polygraph evidence into the record, it fell under the scope of trial strategy; defendant attempted to show that he was tricked into making his statement during his interrogation by the polygraph examiner, and allowing such evidence was not reversible error. German v. State, 30 So.3d 348, 2009 Miss. App. LEXIS 517 (Miss. Ct. App. 2009), cert. denied, 29 So.3d 774, 2010 Miss. LEXIS 142 (Miss. 2010).

Court rejected defendant’s claim of ineffective assistance of counsel; because the defense was that defendant killed the victim in self-defense, counsel’s statement conceding that defendant killed the victim was a tactical decision. Ray v. State, 27 So.3d 416, 2009 Miss. App. LEXIS 496 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 61 (Miss. 2010).

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 counsel’s representation was not ineffective because admission of photographic lineup was for strategic purpose of attempting to establish that defendant could not have been the man who had robbed the store. Conner v. State, 26 So.3d 383, 2009 Miss. App. LEXIS 329 (Miss. Ct. App. 2009), cert. denied, 24 So.3d 1038, 2010 Miss. LEXIS 36 (Miss. 2010).

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’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).

Defendant’s trial counsel was not ineffective for failing to file a motion to suppress any pretrial identification because, although defense counsel thought that a motion to suppress had been filed, the overwhelming evidence against defendant was indicative that even if the prior identifications were stricken, there would be no alteration of the outcome of the trial. Weaver v. State, 996 So. 2d 142, 2008 Miss. App. LEXIS 582 (Miss. Ct. App. 2008).

Defendant’s trial counsel was not ineffective because wearing a prisoner’s uniform or clothing during his trial was not necessarily a reversible error where, during pretrial motions, the trial court gave defendant the opportunity to object to wearing prison attire, and he chose not to, and where clothing was found for him after the first day of his trial. Weaver v. State, 996 So. 2d 142, 2008 Miss. App. LEXIS 582 (Miss. Ct. App. 2008).

On appeal of defendant’s conviction for sexual battery, he failed to prove that trial counsel was ineffective or that he was prejudiced by counsel’s failure to investigate, call witnesses, or dismiss a juror. Defendant failed to show how additional investigation would have significantly aided his case during trial; counsel was permitted wide latitude in his choice of defense strategy; and the juror who knew several of the witnesses stated that she could be fair and unbiased. Smith v. State, 989 So. 2d 973, 2008 Miss. App. LEXIS 255 (Miss. Ct. App. 2008).

Where defendant shot his sister after he suffered a head injury, witnesses testified that he did not appear to be aware of what he was doing. On appeal of defendant’s conviction for murder, the record did not affirmatively show that counsel was ineffective for failing to investigate defendant’s alleged impaired mental state. Page v. State, 987 So. 2d 1035, 2008 Miss. App. LEXIS 233 (Miss. Ct. App. 2008).

Counsel was not deficient for failing to allege that defendant was incompetent to stand trial for aggravated assault where defendant admitted that before trial he had started to take his medicine again and could now think straight. Furthermore, defendant participated in his defense, made a closing argument, and discussed his case and the insanity defense with his cellmate. Epps v. State, 984 So. 2d 1042, 2008 Miss. App. LEXIS 111 (Miss. Ct. App. 2008).

Even though counsel was deficient in failing to pursue an insanity defense in an aggravated assault case, defendant was not prejudiced thereby because the M’Naghten test was not satisfied; defendant understood the consequences of his actions. Defendant stated that he shot his stepfather for “messing with his mother’s mind.” Epps v. State, 984 So. 2d 1042, 2008 Miss. App. LEXIS 111 (Miss. Ct. App. 2008).

Where appellant was convicted of sexual battery and fondling, trial counsel was not ineffective for failing to call a medical professional to testify that a bicycle accident caused the victim’s injury. It was common in criminal trials for the defense to put on no evidence as a means of emphasizing the weakness of the prosecution’s evidence. Sharp v. State, 979 So. 2d 713, 2007 Miss. App. LEXIS 724 (Miss. Ct. App. 2007), cert. denied, 979 So. 2d 691, 2008 Miss. LEXIS 163 (Miss. 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).

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).

In an aggravated assault case, defendant did not receive ineffective assistance of counsel based on an allegation that counsel did not let defendant or his stepson testify at trial; the decision not to let the stepson testify was merely strategy, and moreover, defendant was clearly advised of his right to testify, and he was told that the decision was ultimately his to make. Ellis v. State, 956 So. 2d 1008, 2007 Miss. App. LEXIS 119 (Miss. Ct. App.), cert. dismissed, 973 So. 2d 244, 2007 Miss. LEXIS 687 (Miss. 2007).

In a case involving the sale of cocaine, retained counsel was not ineffective due to improper questions during voir dire or improper statements during closing argument because these comments were made to aid the defense, not prejudice it; moreover, the failure to propose jury instructions could have amounted to mere trial strategy. Jones v. State, 961 So. 2d 730, 2007 Miss. App. LEXIS 71 (Miss. Ct. App.), cert. dismissed, 962 So. 2d 38, 2007 Miss. LEXIS 415 (Miss. 2007).

Defendant’s assertion of ineffective assistance of counsel was rejected in a post-conviction relief case because several decisions merely amounted to trial strategy, such as failing to call a witness, failing to bring up defendant’s misconduct, and the scope of the investigation conducted; further, there was no basis for an entrapment instruction, and defendant was informed of his right to appeal. Shorter v. State, 946 So. 2d 815, 2007 Miss. App. LEXIS 2 (Miss. Ct. App. 2007).

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 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).

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. 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).

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).

Since it was defendant’s contention that he did not know that the receiver was stolen and had not given the witness against him marijuana in exchange for it, it seemed a reasonable decision by trial counsel not to seek an instruction which would have allowed the jury to find defendant guilty of an offense that defendant insisted he did not commit (receiving stolen property valued at less than $ 250), even though it was a lesser offense than the one for which he was being tried. Moreover, since defendant was found in possession of the stereo receiver, which admittedly was taken along with other items during the burglary, trial counsel may have made the strategic decision not to ask for an instruction tailored to guilt respecting the receiver out of fear that focusing on the receiver also risked highlighting the fact that the receiver and the other items were inevitably linked; thus, counsel was not ineffective for failing to request a lesser-included offense instruction. Primas v. State, 915 So. 2d 1095, 2005 Miss. App. LEXIS 969 (Miss. Ct. App. 2005).

Because the witness’s plea agreement was not part of the official record, defendant could not claim that his trial counsel’s failure to ask the witness about any deals he made with the State constituted ineffective assistance of counsel. Moreover, defendant did not prove that the plea agreement was in existence at the time the witness testified at trial. Jackson v. State, 924 So. 2d 531, 2005 Miss. App. LEXIS 451 (Miss. Ct. App. 2005), cert. denied, 927 So. 2d 750, 2006 Miss. LEXIS 175 (Miss. 2006).

In defendant’s escape trial, defendant’s counsel stipulated that he was confined on felony charges because the pending charges were for kidnapping, sexual battery, rape and burglary. If counsel had not stipulated to that fact, those charges and the heinous nature of the charges would have been presented to the jury; it was certainly a reasonable decision made by his counsel, and therefore counsel was not ineffective in failing to object to said bad acts. Herrington v. State, 911 So. 2d 545, 2005 Miss. App. LEXIS 92 (Miss. Ct. App.), cert. denied, 920 So. 2d 1008, 2005 Miss. LEXIS 601 (Miss. 2005).

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).

Counsel was not ineffective in agreeing to admit a Mississippi Bureau of Narcotics report concerning the drug buy, since it appeared to have been a part of counsel’s trial strategy, possibly because of a discrepancy between the report and an agent’s testimony on cross-examination. Further, the record clearly showed many instances where trial counsel asked questions concerning whether defendant was properly identified as the seller of the drugs and trial counsel did not act deficiently in attempting to bolster the defense of mistaken identity. Robertson v. State, 921 So. 2d 348, 2005 Miss. App. LEXIS 175 (Miss. Ct. App. 2005), cert. denied, 926 So. 2d 922, 2006 Miss. LEXIS 165 (Miss. 2006).

In defendant’s escape trial, defendant’s counsel stipulated that he was confined on felony charges because the pending charges were for kidnapping, sexual battery, rape and burglary. If counsel had not stipulated to that fact, those charges and the heinous nature of the charges would have been presented to the jury; it was certainly a reasonable decision made by his counsel, and therefore counsel was not ineffective in failing to object to said bad acts. Herrington v. State, 911 So. 2d 545, 2005 Miss. App. LEXIS 92 (Miss. Ct. App.), cert. denied, 920 So. 2d 1008, 2005 Miss. LEXIS 601 (Miss. 2005).

Record did not support defendant’s allegations that he was given ineffective assistance by his counsel in 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).

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).

Trial court did not deny burglary defendant effective assistance of counsel, because defendant’s claims fell wholly within the realm of trial strategy. Defendant, on appeal, contended that trial counsel had failed to adequately pursue at trial his defense that he did not have the requisite intent to commit burglary; notwithstanding his on-the-record decision not to testify, he mentions, albeit only in passing, that given the evidence presented at trial, it was “imperative” for him to testify; his actual argument on appeal, however, focused on objections his attorney should have made and questions he should have asked on cross-examination. Clay v. State, 881 So. 2d 323, 2004 Miss. App. LEXIS 859 (Miss. Ct. App. 2004), cert. denied, 893 So. 2d 1061, 2005 Miss. LEXIS 96 (Miss. 2005).

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).

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).

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).

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).

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 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 to show that this was 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).

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).

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).

In a criminal appeal, defendant failed to prove ineffective assistance of counsel; his counsel’s failure to have defendant evaluated by the local psychiatrist and his failure to argue self-defense were nothing more than trial strategy. Stack v. State, 860 So. 2d 687, 2003 Miss. LEXIS 529 (Miss. 2003).

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).

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).

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 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 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).

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 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). But see Weatherspoon v. State, 736 So. 2d 419, 1999 Miss. App. LEXIS 141 (Miss. Ct. App. 1999).

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 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).

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).

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).

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).

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).

Failure of the defense attorney to make a motion for continuance was not a denial of due process based upon the assumption that the defendant was not properly represented by counsel where a year had elapsed since the homicide and the case had been once continued, in absence of showing that counsel needed more time for preparation of defense. Sims v. State, 209 Miss. 545, 47 So. 2d 849, 1950 Miss. LEXIS 412 (Miss. 1950).

147. – – Guilty plea or plea bargaining, ineffectiveness of counsel.

Circuit court did not err in dismissing an inmate’s motion for post-conviction collateral relief because the inmate provided no proof, other than his own affidavit, that his counsel rendered ineffective assistance; the inmate’s only claim of prejudice was that he entered a guilty plea as a result of his counsel’s conduct, but the inmate’s signed plea petition stated that he was fully satisfied with the competent advice and help of his counsel, and the inmate stated under oath that he was satisfied with the services rendered by his counsel and that he had no complaints whatsoever about his representation. Phillips v. State, 25 So.3d 404, 2010 Miss. App. LEXIS 23 (Miss. Ct. App. 2010).

Post-conviction relief was denied where inmate provided no proof, other than his own affidavit, that his counsel rendered ineffective assistance; the inmate’s only claim of prejudice was that he entered a guilty plea as a result of his counsel’s conduct, but the inmate’s signed plea petition stated that he was fully satisfied with the competent advice and help of his counsel, and the inmate stated under oath that he was satisfied with the services rendered by his counsel and that he had no complaints whatsoever about his representation. Phillips v. State, 25 So.3d 404, 2010 Miss. App. LEXIS 23 (Miss. Ct. App. 2010).

On a motion for postconviction relief based on ineffective assistance of counsel, where inmate offered only his statements alleging the deficiencies of his counsel, which were directly contradictory to his statements made under oath, and where he admitted that the factual bases for the charges were correct, and testified that his counsel reviewed the plea petition with him that he signed and submitted to the trial court, inmate failed to prove any instance of deficiency on the part of his counsel, and, even if there were errors, failed to show with reasonable probability that, but for such errors, the result of his proceeding would have been different. Cherry v. State, 24 So.3d 1048, 2010 Miss. App. LEXIS 4 (Miss. Ct. App. 2010).

Denial of appellant’s, an inmate’s, motion for postconviction relief was appropriate because he failed to prove that he received the ineffective assistance of counsel. The inmate’s testimony that his counsel was ineffective in misrepresenting the sentence that the inmate would have received if he pled guilty was rejected and the appellate court found no basis for disturbing that finding. Mitchener v. State, 32 So.3d 1218, 2009 Miss. App. LEXIS 757 (Miss. Ct. App. 2009), cert. denied, 31 So.3d 1217, 2010 Miss. LEXIS 206 (Miss. 2010).

Denial of appellant inmate’s motion for post-conviction collateral relief was proper because he failed to prove that he received the ineffective assistance of counsel since he offered nothing more than his own assertions to prove any deficiency on the part of his counsel. In fact, his statements made under oath at his plea hearing wholly contradicted the assertions he currently brought on appeal; the inmate testified that he was satisfied with the work of his counsel, and his counsel reviewed his plea petition with the inmate that he signed and submitted to the circuit court. Brown v. State, 12 So.3d 586, 2009 Miss. App. LEXIS 362 (Miss. Ct. App. 2009).

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).

Trial court did not err in denying defendant’s motion for post-conviction collateral relief because defense counsel was not deficient for not informing defendant that he could be sentenced as an habitual offender, that his sentence could have been illegal, and that he would not be granted post-release supervision for part of his sentence; defense counsel and the trial court both thoroughly led defendant through the plea process to ensure that he understood his plea did not guarantee him either post-release supervision or a particular sentence. Burrough v. State, 9 So.3d 368, 2009 Miss. LEXIS 143 (Miss. 2009).

Trial court did not err in denying defendant’s motion for post-conviction collateral relief because defense counsel was not deficient for failing to object when the trial court enhanced his sentence without giving him the opportunity to withdraw his guilty plea; defense counsel’s failure to object if any, was one that originated subsequent to the trial court’s acceptance of a valid guilty plea, after it was determined to be voluntarily and intelligently given, based on an acknowledged understanding by the defendant that any “consequences” allowed by law could result. Burrough v. State, 9 So.3d 368, 2009 Miss. LEXIS 143 (Miss. 2009).

Post-conviction relief was denied because appellant inmate failed to show that he received ineffective assistance of counsel based on an alleged conflict of interest because he did not show that defense counsel actively represented conflicting interests and that an actual conflict of interest adversely affected counsel’s performance during a guilty plea. Oliver v. State, 20 So.3d 16, 2009 Miss. App. LEXIS 202 (Miss. Ct. App.), cert. denied, 19 So.3d 82, 2009 Miss. LEXIS 522 (Miss. 2009).

Post-conviction relief was denied because appellant inmate failed to show that he received ineffective assistance of counsel based on an alleged failure to conduct an investigation because the inmate did not give specific information satisfying the second prong of the test under Strickland v. Washington, 466 U.S. 668 (1984), or show that the failure to investigate affected the decision to enter his guilty pleas. Oliver v. State, 20 So.3d 16, 2009 Miss. App. LEXIS 202 (Miss. Ct. App.), cert. denied, 19 So.3d 82, 2009 Miss. LEXIS 522 (Miss. 2009).

Post-conviction relief was denied to appellant inmate in a case where he pled guilty to credit card fraud and possession of cocaine because he did not show that he received deficient performance; there was a factual basis for the plea, the inmate indicated that he was satisfied with the performance of his counsel, and no evidence was presented to show any deficiencies. Moreover, the inmate’s post-conviction relief motion lacked any supporting affidavits or other proof to support his allegation of ineffectiveness of counsel. Shies v. State, 19 So.3d 770, 2009 Miss. App. LEXIS 143 (Miss. Ct. App.), cert. denied, 19 So.3d 82, 2009 Miss. LEXIS 504 (Miss. 2009).

Where appellant pled guilty to capital murder and aggravated assault, she was not entitled to post-conviction relief based on her ineffective assistance of counsel claim; the trial court found credibility in counsel’s testimony that he investigated appellant’s case, reviewed the case with her, and concluded that it was her best option to plead guilty. Wilbanks v. State, 14 So.3d 752, 2009 Miss. App. LEXIS 84 (Miss. Ct. App.), cert. denied, 15 So.3d 426, 2009 Miss. LEXIS 382 (Miss. 2009).

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).

When appellant sought post-conviction relief on the basis of ineffective assistance of counsel in connection with his plea of guilty to murder, he did not attach any supporting affidavits to his motion for post-conviction relief to support his claim that counsel failed to investigate the case; nor did appellant name any potential witnesses that counsel could have interviewed. Because appellant failed to rebut the presumption that counsel performed with competence, the trial court did not err by dismissing his claim of ineffective assistance of counsel. Smith v. State, 1 So.3d 937, 2009 Miss. App. LEXIS 23 (Miss. Ct. App. 2009).

Appellant inmate’s motion for post-conviction relief was properly denied because he failed to show that he received ineffective assistance of counsel based on a failure to object to the terms of a sentence; the inmate also failed to show that his plea was involuntary based on alleged misinformation given by trial counsel regarding sentencing. Garner v. State, 21 So.3d 629, 2008 Miss. App. LEXIS 636 (Miss. Ct. App. 2008), cert. dismissed, 2009 Miss. LEXIS 571 (Miss. Nov. 19, 2009).

In a case where defendant was sentenced to eight years in prison with five years of post-release supervision after a guilty plea was entered to the crime of attempted burglary of a dwelling, a post-conviction relief motion was properly dismissed without an evidentiary hearing under Miss. Code Ann. §99-39-11(2) because there was no ineffective assistance of counsel where jurisdiction was included in an indictment, the charges were not contradictory, an attempt charge was appropriate, and appellant inmate’s other self-serving arguments were wholly unsupported by the record. Moreover, a sentence was not illegal since a suspended sentence was not required in addition to post-release supervision, the sentence imposed was within the range permitted, and the inmate was not misinformed regarding his appellate rights. McKinney v. State, 7 So.3d 291, 2008 Miss. App. LEXIS 626 (Miss. Ct. App. 2008).

Defendant failed to establish ineffective assistance of counsel with regard to his conviction, based on a guilty plea, for sexual assault because defense counsel was not required to inform defendant that he had to register as a sex offender for his guilty plea to be knowing, intelligent and voluntary; defendant testified under oath during his guilty plead haring that he was satisfied with his attorney’s representation; and defendant failed to establish that how his attorney’s performance was deficient or prejudiced defendant by the failure to investigate and subpoena certain unidentified impeachment witnesses. Magyar v. State, 18 So.3d 851, 2008 Miss. App. LEXIS 558 (Miss. Ct. App. 2008), aff'd, 18 So.3d 807, 2009 Miss. LEXIS 388 (Miss. 2009).

None of an inmate’s proffered allegations of deficiency evinced ineffective assistance of counsel, given that (1) the trial court had no duty under Miss. Unif. Cir. & Cty. R. 8.04 to advise the inmate of the right to counsel, and thus counsel’s lack of an objection to a nonexistent duty was not deficient performance, (2) counsel’s failure to advise the inmate that he had the right to an attorney if he chose not to plead guilty could not be said to have evinced deficient performance, (3) his guilty plea petition told him that if he chose not to so plead, he was guaranteed the right to counsel, (4) in any event, the record contradicted the contention that the inmate was not advised of his right to counsel, and (5) as the inmate’s plea was voluntarily entered, which included an understanding of the charge and the sentence, the court could not say that counsel was deficient in allowing the inmate to plead guilty. Thompson v. State, 990 So. 2d 265, 2008 Miss. App. LEXIS 520 (Miss. Ct. App. 2008).

Post-conviction relief was denied in a case where appellant inmate had pled guilty to the offense of statutory rape because ineffective assistance of counsel was not established; the inmate stated that he was satisfied with his counsel’s service and that his attorney had explained the plea petition. He offered no evidence, other than his own allegations, to show that counsel’s performance was deficient; moreover, there was no need to contact witnesses to testify as to the inmate’s innocence based on his admissions. Kimble v. State, 2 So.3d 688, 2008 Miss. App. LEXIS 526 (Miss. Ct. App. 2008), cert. denied, 999 So. 2d 1280, 2009 Miss. LEXIS 94 (Miss. 2009), cert. denied, 557 U.S. 909, 129 S. Ct. 2801, 174 L. Ed. 2d 300, 2009 U.S. LEXIS 4498 (U.S. 2009).

Where appellant entered a plea of guilty to grand larceny, he argued that his attorney’s misrepresentation about the State’s sentencing recommendation constituted ineffective assistance of counsel; however, the trial court gave appellant the opportunity to withdraw the guilty plea after the State made the ten-year recommendation and he declined. Therefore, appellant did not show a reasonable probability that, but for counsel’s erroneous advice, he would not have pleaded guilty, but would have insisted on going to trial. Myles v. State, 988 So. 2d 436, 2008 Miss. App. LEXIS 470 (Miss. Ct. App. 2008).

Where appellant pleaded guilty to felony domestic violence – aggravated assault and aggravated assault by use of a deadly weapon, he failed to prove that he received ineffective assistance of counsel in light of counsel’s advice to plead guilty and because his attorney failed to argue a self-defense theory. Appellant failed to demonstrate that his trial counsel’s performance was deficient or that he suffered any actual prejudice as a result of a deficiency. McComb v. State, 986 So. 2d 1087, 2008 Miss. App. LEXIS 410 (Miss. Ct. App. 2008), cert. dismissed, 36 So.3d 455, 2010 Miss. LEXIS 285 (Miss. 2010).

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’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).

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).

Appellant inmate’s ineffective assistance of counsel claim was properly denied because the inmate failed to show that he received deficient advice which prejudiced his defense because, while the inmate argued that his trial counsel failed to explain that he had to surrender himself to authorities on the day he entered his plea, counsel provided competent and reasonable professional assistance during all stages of the guilty plea proceedings, and the mere fact that the inmate was confused about whether he had to surrender himself to authorities as soon as he entered his guilty plea was of no consequence. Busby v. State, 994 So. 2d 225, 2008 Miss. App. LEXIS 222 (Miss. Ct. App.), cert. denied, 998 So. 2d 1010, 2008 Miss. LEXIS 672 (Miss. 2008).

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).

Where appellant entered a guilty plea to conspiracy to commit capital murder, he was not entitled to post-conviction relief based on his ineffective assistance of counsel claim. Appellant admitted his guilt and stated that he was satisfied with the services of his two attorneys; the twenty-year sentence that appellant received was that mandated by the Mississippi Legislature. Payne v. State, 977 So. 2d 1238, 2008 Miss. App. LEXIS 174 (Miss. Ct. App. 2008).

Where an inmate’s guilty plea for carrying a concealed weapon was based on the inmate’s action of having a pistol under a blanket in a van, counsel was ineffective for allowing the inmate to plead guilty because there was no factual basis for the charge since Miss. Code Ann. §97-37-1(2) allowed the inmate to possess a concealed firearm or deadly weapon within any motor vehicle; the inmate failed to establish ineffective assistance based on pleading guilty to being a felon in possession of a deadly weapon because, inter alia, the inmate admitted on the record that the inmate had been convicted of a felony. Knight v. State, 983 So. 2d 348, 2008 Miss. App. LEXIS 145 (Miss. Ct. App.), cert. denied, 981 So. 2d 298, 2008 Miss. LEXIS 267 (Miss. 2008), cert. denied, 555 U.S. 998, 129 S. Ct. 492, 172 L. Ed. 2d 363, 2008 U.S. LEXIS 8079 (U.S. 2008).

Where appellant pleaded guilty to two counts of sexual battery, his lawyer was not deficient because he allowed appellant to plead guilty to a faulty indictment which allegedly did not meet the requirements of Miss. Code Ann. §99-7-9 and Miss. Unif. Cir. & County Ct. Prac. R. 7.06. The indictments charging defendant with committing sexual battery bore a signature of the grand jury foreman and each was stamped filed on October 20, 2005, by the circuit clerk; three unsigned and unfiled indictments in the case were not cause to grant appellant relief on his ineffective assistance of counsel claim. Kimble v. State, 983 So. 2d 1069, 2008 Miss. App. LEXIS 116 (Miss. Ct. App. 2008).

Where appellant pleaded guilty to two counts of sexual battery, he failed to prove that trial counsel was ineffective for urging him to plead guilty; counsel told him that if he went to trial and was found guilty, he would be sentenced to two consecutive life sentences plus ten years. The fact that appellant pleaded guilty because he feared a harsher sentence did not render his plea involuntary. Kimble v. State, 983 So. 2d 1069, 2008 Miss. App. LEXIS 116 (Miss. Ct. App. 2008).

In a post-conviction proceeding, appellant argued that he received ineffective assistance of counsel because his attorney allegedly conspired with the prosecution to force him to plead guilty to the sale of a controlled substance charge. However, appellant failed to support these allegations and stated that he was satisfied with the advice of his attorney during the plea colloquy; the issue was without merit. Davis v. State, 973 So. 2d 1040, 2008 Miss. App. LEXIS 66 (Miss. Ct. App. 2008).

Even though a public defender failed to prepare for a murder case until after an indictment, appellant inmate’s request for post-conviction relief based on ineffectiveness of counsel was denied because there was no prejudice shown since the inmate confessed twice to killing the victim. Moreover, the inmate did not show how retained counsel’s failure to conduct independent investigation of the evidence and failure to interview witnesses prejudiced the result in this case; at any rate, he stated that he was satisfied with her services during the plea hearing. Jenkins v. State, 986 So. 2d 1031, 2008 Miss. App. LEXIS 35 (Miss. Ct. App.), cert. denied, 987 So. 2d 451, 2008 Miss. LEXIS 369 (Miss. 2008).

Post-conviction relief was denied in a drug case where appellant inmate offered no evidence, other than his own statements, to prove that counsel was ineffective; moreover, he did not meet the second prong of the test in Strickland v. Washington, 466 U.S. 668 (1984), since he did not show that he would not have entered a guilty plea if counsel had informed him of the felony charges against the State’s witnesses. In addition, the inmate had stated during the plea process that he was satisfied with his attorney. Ramsey v. State, 973 So. 2d 294, 2008 Miss. App. LEXIS 28 (Miss. Ct. App. 2008).

Court could not find that appellant’s trial counsel performed in an ineffective manner for failing to object to the amendment of an indictment charging appellant as an habitual offender under Miss. Code Ann. §99-19-83 because it was clear that appellant’s counsel was able to negotiate a reduced sentence for appellant, from a possible life sentence under Miss. Code Ann. §99-19-83 to five years under Miss. Code Ann. §99-18-81. Sowell v. State, 970 So. 2d 752, 2007 Miss. App. LEXIS 820 (Miss. Ct. App. 2007).

When appellant pleaded guilty to DUI manslaughter and two counts of DUI mayhem, he represented to the court that he was satisfied with counsel’s representation; he was not entitled to post-conviction relief based on his claim that counsel was ineffective for failing to assist him in receiving a speedy trial and failing to advise him regarding the maximum and minimum sentences. Appellant failed to present any facts supportive of a speedy trial violation; and he was advised, on the record, of the minimum and maximum sentence. Moreno v. State, 967 So. 2d 701, 2007 Miss. App. LEXIS 739 (Miss. Ct. App. 2007).

In a case where defendant entered a guilty plea to possession of cocaine, post-conviction relief based on ineffective assistance of counsel was denied because there was nothing to support this other than defendant’s own bare assertions; moreover, the record did not demonstrate that defendant was coerced into pleading guilty. Ealey v. State, 967 So. 2d 685, 2007 Miss. App. LEXIS 733 (Miss. Ct. App. 2007).

Motion for post-conviction relief was properly summarily denied in a case where defendant entered a guilty plea to a drug charge because there was no showing of ineffective assistance of counsel where defense counsel fulfilled his duty by advising defendant to plead guilty after viewing a tape of the drug transaction; moreover, defendant was unable to show that the outcome would have been different if counsel had investigated and found out that defendant had a prior felony conviction. Middlebrook v. State, 964 So. 2d 638, 2007 Miss. App. LEXIS 602 (Miss. Ct. App. 2007).

Post-conviction motion should not have been summarily dismissed under Miss. Code Ann. §99-39-11 where defendant entered a guilty plea to kidnapping and received 20 years in prison because, although the plea was facially correct, the evidence presented by defendant indicated that his attorney misrepresented the sentence as probation, and this was a proper attack on the voluntariness of the plea and formed the basis for an ineffective assistance of counsel claim; however, ineffective assistance of counsel was not shown regarding the attorney’s representation that a victim was unable to testify at the plea hearing on the issue of guilt /innocence or based on an incomplete transcript since no prejudice was shown. Mitchener v. State, 964 So. 2d 1188, 2007 Miss. App. LEXIS 596 (Miss. Ct. App. 2007).

Where defendant claimed that a plea agreement he entered into was coerced and that counsel was ineffective in not objecting to the trial court’s sentence, defendant’s motion for postconviction relief was properly denied because there was no evidence that defendant fulfilled his obligation, as he was required to do according to the plea agreement. Brown v. State, 963 So. 2d 577, 2007 Miss. App. LEXIS 536 (Miss. Ct. App. 2007).

Where appellant was convicted of selling methamphetamine by entering a plea of guilty, appellant’s claim that his counsel failed to interview witnesses did not include which witnesses were not interviewed or any possible exculpatory testimony they would have provided; thus, appellant failed to meet the required burden of showing that counsel was deficient or that defendant was prejudiced by counsel’s deficiency. Carroll v. State, 963 So. 2d 44, 2007 Miss. App. LEXIS 532 (Miss. Ct. App. 2007).

Motion for postconviction relief was properly dismissed without an evidentiary hearing in a case where a guilty plea was entered to the charge of burglary of an occupied dwelling because defendant offered no proof of what advice he was given about parole, other than the assertions made in the motion, and he was not eligible for such due to his conviction; also, defendant was told by a trial court that he was required to serve the full term of his sentence when he entered a guilty plea. Edge v. State, 962 So. 2d 81, 2007 Miss. App. LEXIS 461 (Miss. Ct. App. 2007).

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 did not receive ineffective assistance of counsel by the failure to inform him of an amended sentence under Miss. Code Ann. §97-21-33 because he was unable to show that he would have chosen to proceed to trial if he had been informed of such; defendant received a very favorable plea agreement under either sentencing scheme, and therefore it was unlikely that the outcome of the case would have been different. Coleman v. State, 971 So. 2d 637, 2007 Miss. App. LEXIS 420 (Miss. Ct. App. 2007), cert. denied, 2007 Miss. LEXIS 681 (Miss. Dec. 6, 2007), cert. denied, 2007 Miss. LEXIS 684 (Miss. Dec. 6, 2007), cert. denied, 973 So. 2d 244, 2007 Miss. LEXIS 686 (Miss. 2007).

Defendant had not established that he was entitled to post-conviction relief for ineffective assistance of counsel when defendant entered a plea of guilty to the sale of cocaine; counsel was not required to apprise defendant of a defective indictment because the indictment was not defective even though it did not set forth the price and quantity of cocaine sold, and counsel properly advised defendant that he could be facing a statutory sentence of 30 years for the sale of cocaine. Dunlap v. State, 956 So. 2d 1088, 2007 Miss. App. LEXIS 348 (Miss. Ct. App. 2007).

Defendant had not established a claim for ineffective assistance of counsel when he claimed that the attorney assured him he would receive a sentence similar to the one imposed on his co-defendants if he entered a plea of guilty, because the record showed that during the plea proceedings defendant indicated on the record that he had not been promised anything and that he understood that the sentencing was entirely up to the trial court judge. Addison v. State, 957 So. 2d 1039, 2007 Miss. App. LEXIS 350 (Miss. Ct. App. 2007).

In an action in which appellant appealed from a judgment of the Calhoun county circuit court which denied his petition for post-conviction relief, the judgment was affirmed where appellant’s counsel did not provide ineffective assistance; through various letters and conferences, appellant’s counsel advised him that at trial the state could probably get a conviction, and appellant would potentially face five years’ imprisonment, while the judge may be more lenient with a plea. Cougle v. State, 966 So. 2d 827, 2007 Miss. App. LEXIS 355 (Miss. Ct. App. 2007).

Post-conviction relief was denied in a case where defendant entered a guilty plea to the sale of cocaine because he was unable to show that counsel acted deficiently in the context of a plea when defendant received the exact sentence that he bargained for. Rucker v. State, 955 So. 2d 958, 2007 Miss. App. LEXIS 284 (Miss. Ct. App. 2007).

In a case where defendant pled guilty to statutory rape, and the suspended portion of his split sentence was later revoked, there was no evidence that counsel acted deficient when a guilty plea was entered, and defendant expressed satisfaction with his counsel when he entered a plea and when he was released from incarceration; there was no evidence in the record of involuntariness or ignorance on the part of defendant in signing the plea agreement. Davis v. State, 954 So. 2d 530, 2007 Miss. App. LEXIS 259 (Miss. Ct. App. 2007).

In a case where defendant entered a guilty plea to two drug charges, no ineffective assistance of counsel was shown where he received a 17-year sentence instead of a life sentence required for habitual offenders; the attorney’s advice to plead guilty was reasonable, and he raised every credible pre-trial motion and was prepared to go forward with the case. Minchew v. State, 967 So. 2d 1244, 2007 Miss. App. LEXIS 260 (Miss. Ct. App. 2007).

Dismissal of a petition for post-conviction relief was reversed and remanded for an evidentiary hearing because defendant made a prima facie showing that his attorney was deficient in recommending a plea to a weapons charge since there was no probable cause to stop a car where one taillight was working under Miss. Code Ann. §63-7-13; however, there was no ineffective assistance of counsel shown based on a failure to explain an Alford plea or the failure to investigate. Moore v. State, 986 So. 2d 959, 2007 Miss. App. LEXIS 242 (Miss. Ct. App. 2007), rev'd, 986 So. 2d 928, 2008 Miss. LEXIS 326 (Miss. 2008).

Post-conviction relief was denied in a case where a guilty plea was entered to the charge of sexual battery because there was no ineffective assistance of counsel; defendant indicated at his plea hearing that he was satisfied with the attorney’s investigation of the case, the attorney was not deficient in advising defendant that he would probably not prevail at trial due to the confession, defendant never told the attorney that there was anything wrong with the confession, and the attorney was not deficient for failing to file an appeal since this right was waived by the guilty plea. Parkman v. State, 953 So. 2d 315, 2007 Miss. App. LEXIS 202 (Miss. Ct. App. 2007).

Motion for post-conviction relief was denied in a case where defendant entered a guilty plea to the charge of burglary of a dwelling because there was no ineffective assistance of counsel shown; defendant stated that he was not forced to give the plea, he indicated that he was satisfied with counsel’s performance, and there was nothing to show that defendant was surprised by the plea proceedings, despite having a short amount of time to make a decision regarding the plea offer. Young v. State, 952 So. 2d 1031, 2007 Miss. App. LEXIS 183 (Miss. Ct. App. 2007).

In a case where defendant pled guilty to the sale of cocaine, post-conviction relief was denied because he did not show that he received ineffective assistance of counsel, and defense counsel properly informed defendant that he could have received the death penalty if he did not take the plea offer; moreover, even if defendant showed that the first prong of the ineffective assistance of counsel test was met, he did not allege that any imagined deficiency caused him prejudice. Belton v. State, 968 So. 2d 501, 2007 Miss. App. LEXIS 179 (Miss. Ct. App.), cert. denied, 968 So. 2d 948, 2007 Miss. LEXIS 643 (Miss. 2007).

Defendant did not receive ineffective assistance of counsel in a statutory rape case where a guilty plea was entered; defendant was fully informed of the facts and circumstances surrounding his case, and he admitted that he was satisfied with his attorney’s actions during the plea hearing. Plummer v. State, 966 So. 2d 186, 2007 Miss. App. LEXIS 166 (Miss. Ct. App. 2007).

Request for post-conviction relief was properly denied without an evidentiary hearing under Miss. Code Ann. §99-39-11(2) where the record contradicted a claim that counsel mistakenly informed defendant about the charge he was pleading guilty to, a claim of coercion, and a claim of ineffective assistance of counsel; the case number was in the heading of the document, defendant acknowledged an intent to nolle prosse a remaining charge, and the parties took notice of this agreement at the plea hearing. Hoyt v. State, 952 So. 2d 1016, 2007 Miss. App. LEXIS 175 (Miss. Ct. App. 2007).

Post-conviction relief was denied in a case where defendant entered a guilty plea to sexual offenses because he did not receive ineffective assistance of counsel; the decision to submit him to a mental evaluation prior to the entry of a plea rested with the judge, there was no failure to investigate or interview witnesses where the information was provided to the defense, the information provided did not rise to the level of exculpatory evidence, and defense counsel did not misrepresent the sentence to defendant’s parents. McNeal v. State, 951 So. 2d 615, 2007 Miss. App. LEXIS 139 (Miss. Ct. App. 2007).

Defendant’s motion for post-conviction relief was properly denied because he did not receive ineffective assistance of counsel during a guilty plea; there was no duty to investigate for defects in a proper indictment where no error was found in the fact that the instrument bore a grand jury date preceding the indictment’s filing date, defendant did not give an adequate argument regarding which rights the attorney failed to advise him of, and it was merely trial strategy to fail to object to a statement from the victim’s family at sentencing. Adams v. State, 950 So. 2d 259, 2007 Miss. App. LEXIS 116 (Miss. Ct. App. 2007).

Post-conviction relief was denied because defendant was unable to show that she received ineffective assistance of counsel in entering a guilty plea; an allegation that the attorney did not explain the charges or possible sentences adequately contradicted the sworn statements defendant gave during a guilty plea. Jones v. State, 948 So. 2d 499, 2007 Miss. App. LEXIS 50 (Miss. Ct. App. 2007).

Post-conviction relief was denied because two defendants were unable to show that they received ineffective assistance of counsel based on advice given about leniency promises allegedly made by police prior to their confessions; because there was no evidence that the statements allegedly made had anything to do with their confessions, the promises were not the proximate cause of such, and moreover defendants did not indicate that they were disappointed with counsel during the plea hearing. Holland v. State, 956 So. 2d 322, 2007 Miss. App. LEXIS 56 (Miss. Ct. App. 2007).

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 denied in a case where defendant pled guilty to two counts of armed robbery, in violation of Miss. Code Ann. §97-3-79, because his attorney did not give erroneous advice since a life sentence was a possible sentence if a jury had convicted him of both counts; the record showed that defendant actively participated in the robbery, and he knew that people were going to be robbed. Wortham v. State, 952 So. 2d 968, 2006 Miss. App. LEXIS 787 (Miss. Ct. App. 2006).

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).

Appellate court held the inmate was not deprived of effective assistance of counsel as the attorney helped reduce the outstanding charges against defendant. Jewell v. State, 946 So. 2d 810, 2006 Miss. App. LEXIS 688 (Miss. Ct. App. 2006).

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).

In a case involving a plea to the charge of gratification of lust, ineffective assistance of counsel was not shown where defendant only brought forth the unsworn allegations in his brief and the report of a doctor who examined a victim; he did not show that the attorney failed to investigate this evidence, explain how he obtained the information, or show that the attorney would have varied his course at trial. Knight v. State, 956 So. 2d 264, 2006 Miss. App. LEXIS 663 (Miss. Ct. App. 2006), sub. op., 959 So. 2d 598, 2007 Miss. App. LEXIS 444 (Miss. Ct. App. 2007).

Appellate court denied an inmate’s motion for post-conviction relief because the inmate acknowledged at his plea hearing that his attorney was fully informed as to all of the facts and circumstances surrounding his case. Hill v. State, 935 So. 2d 416, 2006 Miss. App. LEXIS 546 (Miss. Ct. App.), cert. dismissed, 942 So. 2d 164, 2006 Miss. LEXIS 766 (Miss. 2006).

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).

Defendant was not denied effective assistance of counsel as the record showed that defendant informed the court that he had discussed with his counsel all facts and circumstances relating to the crimes with which he was charged, and all elements of the crime and all facts that might aid in his defense. Brown v. State, 935 So. 2d 1122, 2006 Miss. App. LEXIS 563 (Miss. Ct. App. 2006).

Where appellant pled guilty to armed robbery, he was adequately advised by counsel as to his guilty plea and the record indicated that he said his attorney had discussed all the elements of the crime with him; in post-conviction proceedings, the court rejected his claim that he was not afforded the effective assistance of counsel. Ellis v. State, 952 So. 2d 251, 2006 Miss. App. LEXIS 545 (Miss. Ct. App. 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).

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 satisified 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).

Trial court properly denied defendant’s motion for postconviction 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).

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).

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).

Where defendant was charged with aggravated assault and possession of a firearm by a felon, his attorney told him that he would receive life without parole if he went to trial; defendant then entered a plea of guilty to aggravated assault. Because his attorney’s advice was correct, defendant was afforded effective assistance of counsel. Brewer v. State, 920 So. 2d 546, 2006 Miss. App. LEXIS 79 (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).

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).

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).

Appellate court affirmed the denial of an inmate’s motion for post-conviction relief on the basis that the inmate claimed that he was denied effective assistance of counsel while securing a guilty plea, as the inmate did not present any facts supporting that claim. Ford v. State, 911 So. 2d 1007, 2005 Miss. App. LEXIS 671 (Miss. Ct. App. 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).

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 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).

By entering a guilty plea to manslaughter, defendant did confess to the circuit court that he killed the victim under circumstances in which he was not defending himself. As such, when his counsel informed him that he could plead manslaughter, counsel did exactly what defendant said his counsel failed to do (inform him that he could plead “not in necessary self-defense”); in any event, if defendant had proceeded to trial, it was possible that he could have been convicted of murder and sentenced to life imprisonment, and counsel was not ineffective in advising defendant as to a plea to manslaughter. Barnes v. State, 920 So. 2d 1019, 2005 Miss. App. LEXIS 527 (Miss. Ct. App.), cert. dismissed, 920 So. 2d 1008, 2005 Miss. LEXIS 602 (Miss. 2005), cert. dismissed, 921 So. 2d 344, 2005 Miss. LEXIS 761 (Miss. 2005), cert. denied, 926 So. 2d 922, 2006 Miss. LEXIS 79 (Miss. 2006).

During the plea hearing, defendant acknowledged that he was a participant in the armed robbery, and described the events of the robbery. He told the judge that he had discussed the facts of the case with his attorney and his course of action; defendant’s ineffective assistance of counsel claim lacked merit. Baldwin v. State, 923 So. 2d 218, 2005 Miss. App. LEXIS 513 (Miss. Ct. App. 2005), cert. denied, 927 So. 2d 750, 2006 Miss. LEXIS 141 (Miss. 2006).

Defendant failed to prove that his counsel had provided ineffective assistance in violation of the Sixth Amendment because, if defendant had remained dissatisfied after going to confer with his counsel before entering his guilty plea, he would have told the court, since he had done so before and the court had provided him with ample opportunities to say something. However, when he came back to the court and entered his guilty plea he testified that he was satisfied with his counsel. Jones v. State, 915 So. 2d 511, 2005 Miss. App. LEXIS 913 (Miss. Ct. App. 2005).

Where defendant stated that he was satisfied with his counsel’s representation and his counsel had not pressured him into pleading guilty, the trial court found that his ineffective assistance of counsel claims were waived by his guilty plea, and where defendant was facing a life sentence and received a seven-year incarcerative term, he failed to prove his claim of ineffective assistance of counsel. Smith v. State, 928 So. 2d 190, 2005 Miss. App. LEXIS 797 (Miss. Ct. App. 2005), cert. denied, 929 So. 2d 923, 2006 Miss. LEXIS 237 (Miss. 2006), cert. denied, 549 U.S. 894, 127 S. Ct. 202, 166 L. Ed. 2d 164, 2006 U.S. LEXIS 5463 (U.S. 2006).

Appellant did not receive ineffective assistance of counsel that rendered her plea involuntary when her counsel allegedly told her that she would receive a more lenient sentence by pleading guilty as the trial judge informed her during a colloquy at the plea hearing of the appropriate sentencing range associated with her plea and appellant stated that she understood. Smith v. State, 919 So. 2d 989, 2005 Miss. App. LEXIS 426 (Miss. Ct. App. 2005).

Denial of the inmate’s petition for postconviction 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 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).

In his postconviction action, the record showed that at the plea hearing, defendant specifically announced that he was satisfied with the performance of his counsel. Therefore, it could not be stated that his attorney’s performance was deficient, or that he was deprived of a fair trial; further, is was clear from that record that defendant knew the trial court was rejecting his original plea agreement, that he then entered his plea knowingly and voluntarily, and as such, he was not entitled to an evidentiary hearing. Reed v. State, 918 So. 2d 776, 2005 Miss. App. LEXIS 335 (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, who entered a guilty plea pursuant to a plea agreement, contended in his postconviction 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).

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).

Defendant asserted that under Miss. Code Ann. §47-7-33 (Rev. 2004), a priorly convicted felon could not be given a suspended sentence. However, that information did not appear in the indictment or the record, and in fact, he received a very favorable sentence considering the sentencing options available for his offense of the sale of cocaine; thus, where he stood mute at sentencing, he could not later claim prejudice or that counsel was ineffective and his petition for post-conviction relief was properly denied. Ruff v. State, 910 So. 2d 1160, 2005 Miss. App. LEXIS 232 (Miss. Ct. App. 2005).

Where defendant admitted that he had committed the offense of statutory rape and entered a plea of guilty to the charge, the appellate court rejected his claim of ineffective assistance of counsel. There was no suggestion that defendant had received inaccurate information on his parole eligibility in deciding to enter a plea of guilty; defendant also failed to prove that he was prejudiced by counsel’s failure to investigate the facts of the case or present any evidence in mitigation. Carpenter v. State, 899 So. 2d 916, 2005 Miss. App. LEXIS 115 (Miss. Ct. App.), cert. denied, 898 So. 2d 679, 2005 Miss. LEXIS 274 (Miss. 2005).

Where appellant was charged with sexual battery, his defense attorney was not ineffective for allowing him to plead guilty for aggravated assault. Aggravated assault is a lesser crime than sexual battery and carries a lower maximum sentence. Pearson v. State, 906 So. 2d 788, 2004 Miss. App. LEXIS 1139 (Miss. Ct. App. 2004).

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).

Petitioner had testified himself that the elements of the charge against him were fully explained and the guilty plea petition had also required him to indicate whether or not he was dissatisfied with his counsel’s representation. He made no such objection at his plea hearing when given the opportunity, and he had previously pled guilty to felony and misdemeanor offenses; therefore, there was more than reasonable evidence to prove that he fully understood the plea procedure and his claim that counsel was ineffective, by failing to explain the elements of the offense before he entered his guilty plea, was without merit. Jennings v. State, 896 So. 2d 374, 2004 Miss. App. LEXIS 1052 (Miss. Ct. App. 2004), cert. denied, 896 So. 2d 373, 2005 Miss. LEXIS 185 (Miss. 2005).

Post-conviction relief was properly denied in a D.U.I. case because the driver’s counsel was not ineffective, as his attorney properly informed him that if he did not accept the offered plea bargain, the State would charge him as a 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 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 postconviction relief motion what additional discovery materials would have disclosed nor how such material would have affected his decision to plead guilty, so 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).

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).

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 postconviction relief. Dockens v. State, 879 So. 2d 1072, 2004 Miss. App. LEXIS 770 (Miss. Ct. App. 2004).

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).

Court properly denied defendant’s motion for postconviction 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).

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).

There was no indication in the record other than the allegations of defendant in his brief that counsel’s performance was ineffective. The trial judge asked defendant specifically if he had been coerced or threatened into pleading guilty, and defendant answered in the negative; defendant had admitted to committing armed robbery, though he later asserted that only a simulated weapon was used; thus, defendant failed to meet the statutory burden of proof imposed to establish a prima facie showing of ineffective assistance. Ray v. State, 876 So. 2d 1032, 2004 Miss. App. LEXIS 507 (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).

Circuit court properly dismissed defendant’s motion for post-conviction relief alleging that her plea of guilty was involuntarily and unknowingly made, because she received ineffective assistance of counsel in that her attorney did not adequately communicate with her or advise her of the consequences of her plea. At the plea proceeding, defendant was asked whether her attorney properly advised her before pleading guilty to the charges, and she answered, “yes.” Graves v. State, 872 So. 2d 760, 2004 Miss. App. LEXIS 442 (Miss. Ct. App. 2004).

In postconviction action, where petitioner alleged that the guilty plea was not intelligently entered, and that counsel had misadvised petitioner, petitioner did not demonstrate that the outcome would have been different but for counsel’s actions. Even assuming that counsel made statements causing petitioner to believe that petitioner was pleading to manslaughter and failed to inform petitioner of the maximum penalties, the circuit judge’s questioning during the plea hearing cleared up any misconception, as the circuit judge clearly explained the maximum penalties for murder, and that there was no minimum sentence or fine for murder. Brown v. State, 876 So. 2d 422, 2004 Miss. App. LEXIS 276 (Miss. Ct. App. 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).

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).

Inmate’s postconviction 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).

Defense counsel was not ineffective under Miss. Const. Art. III, § 26 where the inmate was allegedly not informed, prior to the inmate’s guilty plea, that the inmate’s failure to take and carry away property prevented the inmate from satisfying the elements for armed robbery under Miss. Code Ann. §97-3-79; the inmate did not have to take and carry away the personal property of another to satisfy the elements of armed robbery. Putnam v. State, 877 So. 2d 468, 2003 Miss. App. LEXIS 1205 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 861 (Miss. 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).

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).

Petitioner’s attorney did not render ineffective assistance of counsel where the petitioner was aware of his rights and in his petition to enter a plea of guilty and in open court, the petitioner stated that he was satisfied with the assistance and counsel his attorney provided; whether or not the petitioner received a second hearing on the issue of a bond did not rise to the level of prejudice to the defense of his case. Payton v. State, 845 So. 2d 713, 2003 Miss. App. LEXIS 398 (Miss. Ct. App.), cert. denied, 859 So. 2d 392, 2003 Miss. LEXIS 436 (Miss. 2003), cert. denied, 540 U.S. 1078, 124 S. Ct. 931, 157 L. Ed. 2d 751, 2003 U.S. LEXIS 9076 (U.S. 2003).

Petition for post-conviction 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 effected, and any misconception 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 did not receive ineffective assistance of counsel where, although defendant received erroneous advice from his lawyer concerning the length of the sentence pursuant to his guilty plea, the attorney advised the judge of the misinformation during the hearing; when defendant was asked if he understood the correct sentence, he responded that he did. Johnson v. State, 848 So. 2d 906, 2003 Miss. App. LEXIS 588 (Miss. Ct. App. 2003).

Defendant’s trial counsel was not ineffective after defendant signed his guilty plea, trial counsel gave defendant an honest assessment of defendant’s chances of prevailing in a retrial and the consequences that would flow from a guilty verdict; the real reason that defendant took the plea deal was that he feared he would be convicted and sentenced to life in prison, and that this would come to fruition had little to do with the attorney’s performance. Jones v. State, 844 So. 2d 499, 2003 Miss. App. LEXIS 381 (Miss. Ct. App. 2003).

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 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 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).

148. – – Jury selection, ineffectiveness of counsel.

Defendant’s conviction for felony child abuse was appropriate because he failed to prove that he received the ineffective assistance of counsel. In part, it could not be assumed that certain jurors failed to respond to a direct question during voir dire; furthermore, there was no evidence that the attorney orchestrated the situation of defendant entering the courtroom carrying a small child since it was entirely possible that defendant himself, independent of any direction from his attorney, decided to bring the baby into the courtroom. Henry v. State, 40 So.3d 621, 2010 Miss. App. LEXIS 47 (Miss. Ct. App. 2010).

Defendant’s conviction for felony child abuse was appropriate because he failed to prove that he received the ineffective assistance of counsel. In part, defendant’s claims that his attorney incorrectly informed him that the maximum penalty for felony child abuse was 20 years instead of the correct maximum sentence, which was life in prison, was without merit; the statement made to the jury during voir dire did not say that 20 years was the maximum penalty for felony child abuse but instead merely suggested to the jury the possibility that defendant could go to prison for 20 years, which was a valid possibility under Miss. Code Ann. §97-5-39(2)(a). Henry v. State, 40 So.3d 621, 2010 Miss. App. LEXIS 47 (Miss. Ct. App. 2010).

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 alleged that defendant was prejudiced because a juror was thought to be a blood relative of the victim’s mother, but the juror in question and the victim’s mother testified that they were not related and defendant failed to show that the juror and the victim’s mother were close; thus, defendant’s counsel was not ineffective because: (1) defendant failed to put forth any proof that counsel’s failure to object to the juror was not a strategic move; and (2) the defendant showed no prejudice. Scott v. State, 965 So. 2d 758, 2007 Miss. App. LEXIS 642 (Miss. Ct. App. 2007).

No evidence was presented to indicate that any jurors with law enforcement connections were anything other than fair and impartial; in the face of the jurors’ statements that they would be fair and impartial, defendant’s attorney did not err in not challenging the jurors for cause or in not using peremptory strikes against them. McCoy v. State, 954 So. 2d 479, 2007 Miss. App. LEXIS 248 (Miss. Ct. App. 2007).

In a case where defendant was convicted of several crimes relating to the arson and burglary of a residence, he failed to show that he received ineffective assistance of counsel at trial; he failed to show that defense counsel had a duty to strike a juror that was a distant relative of the victims, and there was no showing of bias. McCollins v. State, 952 So. 2d 305, 2007 Miss. App. LEXIS 167 (Miss. Ct. App. 2007).

In a possession and sale of a controlled substance case, as the juror in question was defendant’s aunt, it was reasonable trial strategy to allow her to serve as a juror. Thus, counsel was not ineffective for failing to challenge the juror for cause. McDonald v. State, 921 So. 2d 353, 2005 Miss. App. LEXIS 334 (Miss. Ct. App. 2005), cert. denied, 926 So. 2d 922, 2006 Miss. LEXIS 159 (Miss. 2006).

Questions posed in voir dire by the State regarding whether the jurors would have difficulty returning a guilty verdict due to religious, moral, or personal bias, were not attempts by the State to persuade the jurors to vote one way or another. It was clear from the transcript that the prosecutor was merely determining whether the jurors could be fair in their deliberation if certain facts were established; thus, counsel was not ineffective in failing to object to said questions. Herrington v. State, 911 So. 2d 545, 2005 Miss. App. LEXIS 92 (Miss. Ct. App.), cert. denied, 920 So. 2d 1008, 2005 Miss. LEXIS 601 (Miss. 2005).

In a capital murder case, defendant did not receive ineffective assistance of counsel through 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 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).

Questions posed in voir dire by the State regarding whether the jurors would have difficulty returning a guilty verdict due to religious, moral, or personal bias, were not attempts by the State to persuade the jurors to vote one way or another. It was clear from the transcript that the prosecutor was merely determining whether the jurors could be fair in their deliberation if certain facts were established; thus, counsel was not ineffective in failing to object to said questions. Herrington v. State, 911 So. 2d 545, 2005 Miss. App. LEXIS 92 (Miss. Ct. App.), cert. denied, 920 So. 2d 1008, 2005 Miss. LEXIS 601 (Miss. 2005).

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 demands 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).

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, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69, 1986 U.S. LEXIS 150 (U.S. 1986); 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).

149. – – Conduct of trial, ineffectiveness of counsel.

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).

In defendant’s felony child abuse case under Miss. Code Ann. §97-5-39(2)(a), counsel was attempting to prevent the jury from hearing any more testimony about the lingering effects of the child’s injuries by stipulating as to the child’s condition; the court could not find this action deficient. German v. State, 30 So.3d 348, 2009 Miss. App. LEXIS 517 (Miss. Ct. App. 2009), cert. denied, 29 So.3d 774, 2010 Miss. LEXIS 142 (Miss. 2010).

In a carjacking case, even though an indictment and a jury instruction lacked the specific language “from another person’s immediate actual possession,” as set forth in Miss. Code Ann. §97-3-117(1), they were sufficient because the use of the name of the victim was the equivalent of such. Therefore, there was no due process violation, and defense counsel was not ineffective for submitting the instruction to the jury. Perryman v. State, 16 So.3d 41, 2009 Miss. App. LEXIS 145 (Miss. Ct. App.), cert. denied, 15 So.3d 426, 2009 Miss. LEXIS 404 (Miss. 2009).

In a possible hybrid representation case, defendant’s ineffective assistance of counsel claim failed because there was no support in the record for defendant’s allegations that counsel was unprepared for trial or that he made disparaging remarks to defendant during the trial. Jackson v. State, 1 So.3d 921, 2008 Miss. App. LEXIS 590 (Miss. Ct. App. 2008).

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).

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).

Where defendant was convicted of armed robbery, kidnapping, and rape, the record was not sufficiently developed to support his claim that counsel rendered ineffective assistance by failing to: properly investigate the case, call additional witnesses, request a continuance for additional time to prepare, file a motion asserting defendant’s right to a speedy trial, file a motion to suppress the 911 tape, or call a DNA expert to rebut the State’s DNA evidence. Defendant did not mention which witnesses his attorney failed to contact; since defendant alleged that his attorney should have requested more time to prepare for trial, it was unclear how he was prejudiced by his attorney’s failure to request a speedy trial. Burton v. State, 970 So. 2d 229, 2007 Miss. App. LEXIS 807 (Miss. Ct. App. 2007).

In a drug case, defendant did not receive ineffective assistance of counsel because (1) he offered no evidence to rebut the presumption that the jury had been properly sworn, so no objection by counsel was required; (2) defense counsel was not required to request an instruction regarding an accomplice because the State’s evidence did not rest upon the testimony of two others involved; (3) defense counsel’s failure to request an additional instruction when mention was made of defendant’s prior incarceration was not deficient where an objection was made immediately and a curative instruction was given; and (4) the failure to object to defendant’s criminal record was not deficient since the testimony of a correctional department custodian was permissible to authenticate such under Miss. R. Evid. 901. Vardaman v. State, 966 So. 2d 885, 2007 Miss. App. LEXIS 706 (Miss. Ct. App. 2007).

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 counsel filed numerous pre-trial motions, including his successful motion to offer evidence of the first victim’s past sexual behavior, presented numerous witnesses for the defense, and succeeded in having count two of the indictment dismissed; thus, defendant’s ineffective assistance of counsel claim failed. Poynor v. State, 962 So. 2d 68, 2007 Miss. App. LEXIS 292 (Miss. Ct. App.), cert. denied, 962 So. 2d 38, 2007 Miss. LEXIS 416 (Miss. 2007).

Counsel was not ineffective for failing to object to: (1) the confidential informant’s narration of a videotape of a controlled drug buy was proper as he testified to matters he perceived first-hand; (2) a prosecutor’s statement during voir dire because he did not elaborate on how the statement was improper or prejudiced the outcome of his trial; and (3) the prosecutor’s improper remarks during closing argument because, even though counsel should have objected to the remarks, defendant was not prejudiced by counsel’s failure to object since the jury would have still found him guilty. McCoy v. State, 954 So. 2d 479, 2007 Miss. App. LEXIS 248 (Miss. Ct. App. 2007).

Defendant failed to allege any prejudice stemming from an admission by trial counsel that defendant was a habitual offender as the statement was made outside the presence of the jury, with only opposing counsel, the judge, and court staff present; also, since defendant was sentenced to a mandatory term of life as a habitual offender, the remarks made to the court had no impact on the result of defendant’s trial, and thus defendant’s counsel was not ineffective. McCoy v. State, 954 So. 2d 479, 2007 Miss. App. LEXIS 248 (Miss. Ct. App. 2007).

In a case involving capital murder and aggravated assault, defendant did not receive ineffective assistance of counsel based on a failure to interview a potential alibi witness, a failure to have gun powder residue tests performed, or the failure to object to the prosecutor’s use of a nickname for defendant; defendant did not identify the alibi witness or the substance of the potential testimony, a negative gun powder residue test would not have conclusively proven defendant’s innocence, and an objection to the prosecutor’s remark was overruled. Sanders v. State, 939 So. 2d 842, 2006 Miss. App. LEXIS 740 (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 him of a possible death sentence. Harris v. State, 944 So. 2d 900, 2006 Miss. App. LEXIS 567 (Miss. Ct. App. 2006).

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).

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).

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).

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).

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 the testimony that she had made up to that point and to disregard the 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 did 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).

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 postconviction relief. Porter v. State, 885 So. 2d 92, 2004 Miss. App. LEXIS 952 (Miss. Ct. App. 2004).

Double murder defendant was not denied effective assistance of trial counsel where counsel was alleged to have a conflict of interest and the trial court denied defense counsel’s ex parte motion to withdraw as counsel because the alleged conflict came about as the result of the plea negotiations and counsel being aware and advised that her client was probably guilty. Originally, defense counsel had proposed to put defendant on the witness stand to deny that he was the shooter, but after the plea bargain process, this was clearly not a viable option; this may have resulted in a change in trial strategy but did not foreclose defendant’s right to effective counsel; counsel’s performance did not show that she was impaired by the revelation; there was no conflict, no deficient performance, and no prejudice, presumed or actual. Evans v. State, 899 So. 2d 890, 2004 Miss. App. LEXIS 850 (Miss. Ct. App. 2004), cert. denied, 898 So. 2d 679, 2005 Miss. LEXIS 272 (Miss. 2005).

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 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).

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).

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).

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 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).

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).

Court rejected defendant’s claim of ineffective assistance of counsel because a review of the record revealed no deficiency in defense counsel’s performance; counsel 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).

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).

In a criminal trial which began at 11:00 a.m., court did not deprive defendant of effective assistance of counsel by allowing jury to deliberate until 11:03 p.m. of same day, where defense counsel, in seeking recess, declared himself fit and able, and only expressed concern for the jury. Fairley v. State, 483 So. 2d 345, 1986 Miss. LEXIS 2398 (Miss. 1986).

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).

150. – – Examination of witnesses, ineffectiveness of counsel.

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).

Statement made by a detective concerning what doctors told him was hearsay under Miss. R. Evid. 801(c), but defendant failed to show how counsel’s failure to object prejudiced his defense. German v. State, 30 So.3d 348, 2009 Miss. App. LEXIS 517 (Miss. Ct. App. 2009), cert. denied, 29 So.3d 774, 2010 Miss. LEXIS 142 (Miss. 2010).

Court was not persuaded that a detective was offering any medical conclusion that only an expert could give; thus, the court could not find that defendant’s trial counsel was ineffective for failing to object to the first statement. German v. State, 30 So.3d 348, 2009 Miss. App. LEXIS 517 (Miss. Ct. App. 2009), cert. denied, 29 So.3d 774, 2010 Miss. LEXIS 142 (Miss. 2010).

Court rejected defendant’s claim of ineffective assistance of counsel; the court failed to see how a question posed to the State’s expert to discuss the type of wound inflicted showed deficient performance, much less any prejudice. Ray v. State, 27 So.3d 416, 2009 Miss. App. LEXIS 496 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 61 (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, 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 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).

There was no merit to defendant’s ineffective assistance of counsel claim, which seemed to suggest that his attorney was ineffective for failing to ask certain questions, because defendant failed to assert any authority to support his claim that his attorney’s actions or inactions rose to the level of ineffective assistance, and defendant did not enunciate the questions that he claimed his attorney was ineffective for failing to ask. Weeks v. State, 971 So. 2d 645, 2007 Miss. App. LEXIS 843 (Miss. Ct. App. 2007).

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).

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).

In a drug case, even though defendant alleged that counsel was ineffective by failing to attack certain testimony, by not eliciting certain testimony from the driver of a car where drugs were found, and by failing to impeach this witness for his role in selling drugs, there was no showing of prejudice; therefore, there was constitutionally adequate representation. Walker v. State, 962 So. 2d 39, 2006 Miss. App. LEXIS 911 (Miss. Ct. App. 2006), cert. denied, 962 So. 2d 38, 2007 Miss. LEXIS 419 (Miss. 2007).

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).

Leading questions rarely create so distorted an evidentiary presentation as to deny a defendant a fair trial; thus, defendant’s claim that his attorney was ineffective by allowing the district attorney to ask a series of leading questions to the witness failed. Jackson v. State, 924 So. 2d 531, 2005 Miss. App. LEXIS 451 (Miss. Ct. App. 2005), cert. denied, 927 So. 2d 750, 2006 Miss. LEXIS 175 (Miss. 2006).

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).

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).

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).

Appellate court properly held that defendant failed to show what specific evidence a witness would have presented or how it would have been relevant to the defense; therefore, it 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).

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 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).

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).

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).

The failure of defense attorney to call as witnesses defendant’s two sisters on his behalf was not a denial of due process based upon the assumption that the defendant was not properly represented by counsel, where there was no showing in the record as to what the testimony of his witnesses would have been and also where defendant was permitted as a witness to detail conversation between these two sisters, which conversation defendant said he overheard and which presumably constituted the testimony the sisters would have given as witnesses. Sims v. State, 209 Miss. 545, 47 So. 2d 849, 1950 Miss. LEXIS 412 (Miss. 1950).

151. – – Objection to admission or suppression of evidence, ineffectiveness of counsel.

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).

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).

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).

Defendant’s convictions for aggravated assault and murder were appropriate because he failed to prove that he received the ineffective assistance of counsel since the failure to object to part of an officer’s testimony did not meet the requirements of Strickland. Defendant’s result would not have changed if his attorney had objected to the testimony; three eyewitnesses identified defendant in court as the only shooter and the evidence was more than sufficient to convict him of the charged crimes. Jackson v. State, 28 So.3d 638, 2009 Miss. App. LEXIS 476 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 85 (Miss. 2010).

Defendant’s convictions for capital murder, aggravated assault, and conspiracy to commit aggravated assault were appropriate because counsel was not ineffective in failing to object to testimony in which the weapon used during the incident was connected to defendant since the probative value of that evidence, connecting defendant and the murder weapons, was not substantially outweighed by any prejudicial effect given the totality of the evidence. As such, trial counsel’s failure to object did not constitute deficient performance. Williams v. State, 3 So.3d 105, 2009 Miss. LEXIS 68 (Miss. 2009).

Defendant’s counsel was not ineffective for failing to object to the constructive amendment of the indictment and for failing to meet the notice requirements of Miss. R. Evid. 412(c) necessary to introduce evidence of the victim’s prior sexual relationship with defendant because those assignments of error were without merit regardless of the procedural bar imposed. Goldman v. State, 9 So.3d 394, 2008 Miss. App. LEXIS 525 (Miss. Ct. App. 2008), cert. denied, 12 So.3d 531, 2009 Miss. LEXIS 222 (Miss. 2009).

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).

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 sentence was proper where his counsel was not ineffective for a failure to object because the certified copy of defendant’s conviction and the testimony provided proved that convicted of a crime in Louisiana and that he served a term of more than one year. Holloway v. State, 914 So. 2d 817, 2005 Miss. App. LEXIS 861 (Miss. Ct. App. 2005).

Defendant’s claim of ineffective assistance of counsel was dismissed without prejudice because defendant had not alleged that the result at trial would have been different if her counsel had made objections to the prosecutor’s inflammatory remarks, the introduction of criminal files on defendant and her son, and the introduction of other guns found in her home. Her counsel’s failure to object could have been viewed as trial strategy and the record did not affirmatively show that her counsel was constitutionally ineffective. Young v. State, 908 So. 2d 819, 2005 Miss. App. LEXIS 445 (Miss. Ct. App. 2005).

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).

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).

Defendant was not denied 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).

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).

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).

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).

Defendant’s counsel’s failure to make a Miranda objection to the police officer’s testimony did not amount to a deficiency in counsel’s representation; the officer did not interrogate defendant and defendant volunteered the statement that he shot into the air so there was no basis for a Miranda challenge. Maxwell v. State, 856 So. 2d 513, 2003 Miss. App. LEXIS 379 (Miss. Ct. App. 2003), cert. denied, 892 So. 2d 824, 2005 Miss. LEXIS 11 (Miss. 2005).

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).

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 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 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).

Failure of defense attorney to object to introduction of evidence of shotgun, used in committing homicide for which defendant was on trial, and a photograph showing the scene of crime and surroundings, was not a denial of due process based upon the assumption that the defendant was not properly represented by counsel. Sims v. State, 209 Miss. 545, 47 So. 2d 849, 1950 Miss. LEXIS 412 (Miss. 1950).

152. – – Objection to jury instructions, ineffectiveness of counsel.

Counsel was not ineffective for failing to submit a spoilation instruction regarding the lost recording of his interview with the Drug Enforcement Agency because no evidence was presented at trial that the audio recording of defendant’s interview was purposefully taped over or erased in bad faith; and, therefore, defendant was not entitled to a spoilation instruction. Fairley v. State, 275 So.3d 1012, 2019 Miss. LEXIS 180 (Miss. 2019), cert. denied, — U.S. —, 140 S. Ct. 1241, 206 L. Ed. 2d 229, 2020 U.S. LEXIS 892 (U.S. 2020).

Defendant’s trial attorney was not ineffective for failing to object to the court’s jury instruction; the instruction fairly announced the law applicable to the facts presented and therefore there was no basis for the attorney to object. Perkins v. State, 37 So.3d 656, 2009 Miss. App. LEXIS 854 (Miss. Ct. App. 2009), cert. denied, 36 So.3d 455, 2010 Miss. LEXIS 321 (Miss. 2010).

Appellant failed to show that his trial attorney was ineffective for failing to request a jury instruction presenting the appellant’s theory of the case, namely that he had sold sheet rock and not cocaine to the informant; failure to request such an instruction have been a conscious trial strategy, since the attorney may not have wanted the jury to have the option of convicting him of the lesser non-included offense of selling sheet rock under the guise of cocaine. Because the court could not conclude from the record that appellant’s attorney had been constitutionally ineffective, the court refrained from rulling upon the claim without prejudice against appellant raising it at a later proceeding. Perkins v. State, 37 So.3d 656, 2009 Miss. App. LEXIS 854 (Miss. Ct. App. 2009), cert. denied, 36 So.3d 455, 2010 Miss. LEXIS 321 (Miss. 2010).

Because there was no reason to assume the trial court delivered an instruction which influenced the jury’s guilty verdict, it would not be objectively unreasonable for appellate counsel to fail to raise the issue on appeal. Thus, the inmate’s ineffective-assistance claim or appeal would fail under the first prong of Strickland. Tyler v. State, 19 So.3d 663, 2009 Miss. LEXIS 392 (Miss. 2009).

In defendant’s trial under Miss. Code Ann. §97-5-39(2)(a), defendant did admit to shaking the child and his admission to an important element of the crime negated the need for a circumstantial-evidence instruction, such that counsel was not ineffective for failing to proffer such an instruction. German v. State, 30 So.3d 348, 2009 Miss. App. LEXIS 517 (Miss. Ct. App. 2009), cert. denied, 29 So.3d 774, 2010 Miss. LEXIS 142 (Miss. 2010).

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 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).

Defense counsel was not ineffective where defendant argued that the lesser-included offense instruction of resisting arrest should have been included in the instructions to the jury and defense counsel was ineffective for failing to ask for the instruction; however, the evidence demonstrated that the lesser-included offense instruction of resisting arrest was not warranted as there was no evidentiary basis to support that instruction, so defense counsel was not ineffective for failing to ask for the instruction. Enlow v. State, 878 So. 2d 1111, 2004 Miss. App. LEXIS 710 (Miss. Ct. App.), cert. denied, 888 So. 2d 1177, 2004 Miss. LEXIS 1479 (Miss. 2004).

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 in failing to request a self-defense jury instruction. Burnside v. State, 882 So. 2d 212, 2004 Miss. LEXIS 1160 (Miss. 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).

Defendant’s counsel was not ineffective in the assistance provided in defendant’s defense; counsel’s failure to request a jury instruction for manslaughter did not constitute ineffective assistance where defendant himself made the determination that a manslaughter instruction should not be requested, and that decision was purely strategic. Maxwell v. State, 856 So. 2d 513, 2003 Miss. App. LEXIS 379 (Miss. Ct. App. 2003), cert. denied, 892 So. 2d 824, 2005 Miss. LEXIS 11 (Miss. 2005).

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).

153. – – Continuances, ineffectiveness of counsel.

Court rejected defendant’s claim of ineffective assistance of counsel, given that the court failed to see how asking for a continuance constituted deficient performance in this instance, plus defendant failed to show prejudice. Ray v. State, 27 So.3d 416, 2009 Miss. App. LEXIS 496 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 61 (Miss. 2010).

Defendant did not assert on appeal that the other person present during the controlled drug buy would have been able to provide any more information, nor did he suggest how a continuance would have benefitted his defense; therefore, any deficiency on the part of trial counsel for failing to request a continuance did not rise to the level of ineffective assistance, as defendant did not show any prejudice. McCoy v. State, 954 So. 2d 479, 2007 Miss. App. LEXIS 248 (Miss. Ct. App. 2007).

In sexual battery case, the inmate’s trial counsel was not ineffective for asking for several continuances. When even the inmate 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).

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 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).

154. – – Sentencing proceedings, ineffectiveness of counsel.

Where the trial court granted appellant’s motion to reconsider his sentence and suspended ten years of his twenty-year sentence for manslaughter, appellant failed to show how counsel was ineffective. The post-conviction court determined that his ineffective assistance of counsel claim lacked merit. Steele v. State, 991 So. 2d 176, 2008 Miss. App. LEXIS 303 (Miss. Ct. App. 2008).

Where defendant was convicted of three counts of sexual battery, the trial court did not err by not declaring a mistrial based upon a deterioration of the attorney/client relationship during sentencing. Several witnesses were called by the defense attorney during sentencing to testify as to defendant’s character including his wife, grandmother, mother, and his stepfather. Smith v. State, 989 So. 2d 973, 2008 Miss. App. LEXIS 255 (Miss. Ct. App. 2008).

In a business burglary case, denial of post-conviction relief was proper because, although Miss. Code Ann. §47-7-33 limited the power of the trial court to suspend a sentence and order probation for previously convicted felons, any error in sentencing the petitioner was harmless as he was given a lenient sentence; he was indicted as a habitual offender with two prior felonies, but he was ultimately sentenced as a non-habitual offender. The petitioner’s counsel could not have been ineffective when his sentence was less than if he had been sentenced as a habitual offender. Sago v. State, 978 So. 2d 1285, 2008 Miss. App. LEXIS 204 (Miss. Ct. App. 2008).

Motion for post-conviction relief was properly dismissed based on an allegation of ineffective assistance of counsel because defendant was correctly informed of the 10-year maximum penalty for uttering forgery; however, the case was remanded for resentencing because plain error was committed when a trial court improperly imposed a 15-year sentence. Jefferson v. State, 958 So. 2d 1276, 2007 Miss. App. LEXIS 440 (Miss. Ct. App. 2007).

Defendant’s motion for post-conviction relief was denied on the basis that counsel was deficient because this issue was not preserved for review; notwithstanding the bar, defendant expressed satisfaction with counsel during a plea colloquy based on counsel’s work to secure a recommendation for a suspended sentence, and defendant’s own misconduct resulted in incarceration when the suspended sentence was later revoked. Ausbon v. State, 959 So. 2d 592, 2007 Miss. App. LEXIS 441 (Miss. Ct. App. 2007).

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).

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).

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).

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).

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).

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).

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).

Defense counsel provided adequate representation at the resentencing where counsel was actively involved in the sentencing hearing; she pointed out to the court defendant’s age and his need for hip replacement and asked that the condition be taken into consideration when imposing sentence; additionally, counsel requested that the court consider post-release supervision. Greer v. State, 920 So. 2d 1039, 2005 Miss. App. LEXIS 856 (Miss. Ct. App. 2005), cert. dismissed, 933 So. 2d 303, 2006 Miss. LEXIS 307 (Miss. 2006).

Defendant failed to present the appellate court with specific, concrete facts to support his conclusory allegation that his attorney’s performance was deficient and that but for his attorney’s errors, his sentence would have been different; defendant failed to satisfy his burden of overcoming the strong presumption that his attorney’s conduct fell within the wide range of professional assistance. Bates v. State, 914 So. 2d 297, 2005 Miss. App. LEXIS 790 (Miss. Ct. App. 2005).

Defendant’s counsel was not ineffective for allowing him to receive an illegal sentence for possession of cocaine because the sentence was corrected six months later and defendant suffered no prejudice. Defendant presented no evidence to show that counsel’s objection to the imposed sentence would have changed the outcome. Black v. State, 919 So. 2d 1017, 2005 Miss. App. LEXIS 466 (Miss. Ct. App. 2005).

Appellant’s claim that his counsel was ineffective because he assured him that his sentence would not exceed 10 years was disproved by the record; because the plea petition that appellant signed stated the minimum and maximum penalties regarding each crime, appellant knew that his sentence could exceed 10 years. Thornhill v. State, 919 So. 2d 238, 2005 Miss. App. LEXIS 450 (Miss. Ct. App. 2005).

Court did not err in denying defendant’s motion to supplement his petition for postconviction 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).

In a capital murder case, defendant did not receive ineffective assistance of counsel by a failure to present witnesses during sentencing because defendant chose not to testify, and defendant failed to present any evidence regarding other witnesses that could have been called; moreover, it was a tactical decision because 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).

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).

Denial in part of the inmate’s application for leave to file petition for postconviction relief was proper where his claims that trial counsel failed to adequately present mitigating evidence of his mental retardation was without merit; his counsel put forth significant mitigating evidence during the sentencing phase and the Supreme Court could not say that trial counsel’s decisions were unreasonable in that regard. Carr v. State, 873 So. 2d 991, 2004 Miss. LEXIS 544 (Miss. 2004).

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).

Counsel was not ineffective where defendant did not explicitly state why the counsel he received was ineffective but before accepting defendant’s guilty plea, the circuit judge asked defendant if he was satisfied with his counsel and defendant responded that he was satisfied. Moreover, defendant pled guilty to murder, which usually carried a sentence of life in prison; his sentence was less, he was only sentenced to 40 years, accordingly, his claim of ineffective assistance of counsel was without merit. Sibley v. State, 877 So. 2d 541, 2004 Miss. App. LEXIS 285 (Miss. Ct. App. 2004).

Inmate’s request for leave to file an application seeking postconviction 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).

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).

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).

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).

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 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 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).

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).

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).

153. – – Appeal of cause, ineffectiveness of counsel.

Defendant’s second motion for post-conviction relief was barred as a successive writ. Defendant’s failure to perfect an appeal after the first petition was denied was due to his lack of funds and not his attorney’s performance; therefore, he failed to prove the ineffective assistance of counsel. Joshua v. State, 913 So. 2d 1062, 2005 Miss. App. LEXIS 488 (Miss. Ct. App. 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).

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).

156. – – Pleading, ineffectiveness of counsel.

Inmate’s claims that he lacked ineffective assistance of counsel based on counsel’s failure to call two witnesses as a suppression hearing had no merit because the inmate presented no affidavits with his petition and his reliance on the assertions in his brief did not meet the requirements of Vielle and Strickland. Garcia v. State, 14 So.3d 749, 2009 Miss. App. LEXIS 31 (Miss. Ct. App.), cert. denied, 15 So.3d 426, 2009 Miss. LEXIS 383 (Miss. 2009).

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).

Because an inmate offered only his own statement as proof of the claim of ineffective assistance, the inmate failed to meet his burden of showing that counsel was deficient or that the inmate was prejudiced. Sneed v. State, 990 So. 2d 226, 2008 Miss. App. LEXIS 136 (Miss. Ct. App.), cert. denied, 994 So. 2d 186, 2008 Miss. LEXIS 468 (Miss. 2008).

Ineffective assistance of counsel claim was not addressed on direct appeal because appendixes, a transcribed telephone conversation, and references thereto were stricken from brief because they were not admitted into evidence at trial; therefore, defendant was unable to offer support from the record to substantiate his claim. Dimaio v. State, 951 So. 2d 581, 2006 Miss. App. LEXIS 782 (Miss. Ct. App. 2006).

Defendant was unable to raise the issue of ineffective assistance of counsel on appeal because the record did not affirmatively show ineffectiveness of constitutional dimensions and the parties did not stipulate that the record was adequate; defendant failed to show prejudice and did not meet the burden of proof since mere allegations of prejudice was not sufficient. Ramsey v. State, 959 So. 2d 15, 2006 Miss. App. LEXIS 764 (Miss. Ct. App. 2006), cert. denied, 958 So. 2d 1232, 2007 Miss. LEXIS 588 (Miss. 2007).

Defendant convicted of murder claimed his trial counsel was constitutionally ineffective because counsel failed to file critical motions, failed to subject the State’s case to a meaningful adversarial setting, and failed to investigate all of the information relating to his innocence. The appellate court was unable to consider the extra-record documents which defendant attached to his brief; the record did not affirmatively prove defendant’s claim. Amos v. State, 911 So. 2d 644, 2005 Miss. App. LEXIS 652 (Miss. Ct. App. 2005).

In the absence of a valid claim as to the trial court’s lack of jurisdiction to revoke defendant’s probation, the appellate court could not possibly hold that the performance of defendant’s attorney was deficient, and without such deficiency, defendant’s defense clearly suffered no prejudice and no ineffective assistance of counsel was shown. Grace v. State, 919 So. 2d 987, 2005 Miss. App. LEXIS 446 (Miss. Ct. App. 2005).

Defendant’s claim of ineffective assistance of counsel at trial failed where he failed to tell 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).

On appeal of defendant’s embezzlement conviction, he failed to prove that his trial counsel was ineffective. Defendant’s assertion that counsel was ineffective was contained in one line of his brief; defendant failed to allege with specificity any actions or inactions by his counsel that were deficient. Bright v. State, 894 So. 2d 590, 2004 Miss. App. LEXIS 854 (Miss. Ct. App. 2004), cert. denied, 893 So. 2d 1061, 2005 Miss. LEXIS 136 (Miss. 2005).

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).

Defendant had to show a deficiency of counsel’s performance that was 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).

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).

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’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).

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).

157. – – Sufficiency of evidence, ineffectiveness of counsel.

Defendant’s manslaughter conviction was appropriate because he failed to prove that he received the ineffective assistance of counsel. Defendant’s claims regarding the weight and sufficiency of the evidence were without merit and those were the only issues that he argued supported his claim of ineffective assistance of counsel; as there was no merit to his claim of insufficiency of the evidence or his claim that the weight of the evidence did not support the conviction, defendant was unable to show that his attorney’s performance prejudiced his defense. Martin v. State, 43 So.3d 504, 2010 Miss. App. LEXIS 122 (Miss. Ct. App. 2010).

Where appellant, a forty-four-year-old male, was caught having sexual intercourse with a fourteen-year-old female, he entered a plea of guilty to statutory rape under Miss. Code Ann. §97-3-65(1)(b). He was not entitled to post-conviction relief based on his claim of ineffective assistance of counsel; because there was ample evidence to convict him of statutory rape, there was no reasonable probability that the outcome of the case would have been different but for counsel’s alleged errors. Maggitt v. State, 26 So.3d 363, 2009 Miss. App. LEXIS 250 (Miss. Ct. App. 2009), cert. denied, 24 So.3d 1038, 2010 Miss. LEXIS 38 (Miss. 2010).

Denial of appellant inmate’s request for post-conviction relief after he was convicted of capital murder (murder during the commission of sexual battery) was appropriate because he failed to prove that he received the ineffective assistance of counsel. Even if counsel had procured a DNA expert who testified that the inmate’s DNA was not present, that did not exonerate him of the sexual battery charge because sexual penetration could be by insertion of any object into the genital or anal opening of another person’s body. Havard v. State, 988 So. 2d 322, 2008 Miss. LEXIS 264 (Miss. 2008).

Defendant failed to show ineffective assistance, because defendant stated during the plea colloquy that he was satisfied with his attorney’s performance, no indication appeared in the record that defendant’s attorney inaccurately advised him concerning his sentence, defendant waived his right to trial when he pled guilty, and defendant did not indicate what motions might had been filed or the likelihood of the success of such motions. Trice v. State, 992 So. 2d 638, 2007 Miss. App. LEXIS 841 (Miss. Ct. App. 2007), cert. denied, 997 So. 2d 924, 2008 Miss. LEXIS 538 (Miss. 2008).

Defendant’s assertion that he received ineffective assistance of counsel was both barred by statute and without merit, because defendant pled guilty on August 13, 2002, and the motion for post-conviction relief was filed on December 14, 2006, and defendant failed to show with specificity and detail how his counsel was ineffective due to counsel’s involvement in a prior investigation of defendant as police officer. Hull v. State, 983 So. 2d 331, 2007 Miss. App. LEXIS 825 (Miss. Ct. App. 2007).

Defendant’s counsel did not render ineffective assistance because defendant’s argument paralleled his contention regarding the lack of evidence that the victim had been placed in fear during the course of the robbery; however, if the taking of property was effectuated by violence or force upon the victim, this action was sufficient to constitute a robbery, and therefore because defendant was an admitted participant in the robbery of the store, there was sufficient evidence presented supporting a conviction of capital murder. Anderson v. State, 5 So.3d 1088, 2007 Miss. App. LEXIS 677 (Miss. Ct. App. 2007), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 171 (Miss. 2009), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 184 (Miss. 2009), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 177 (Miss. 2009).

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).

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 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).

Petitioner failed to show that he received ineffective assistance of counsel because it clearly was because of defense counsel’s successful negotiations that the petitioner was able to initially receive a lenient sentence and eventually able to escape a possible life sentence, and when asked by the trial court if he had any complaints about the services provided by his defense counsel, the petitioner indicated that he had no complaints whatsoever. White v. State, 921 So. 2d 402, 2006 Miss. App. LEXIS 113 (Miss. Ct. App. 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’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).

In a criminal prosecution for sexual battery, where the record showed the performance of defense counsel to be less than perfect, there was nothing in the record to indicate that the performance of defense counsel was not within the wide range of reasonable professional assistance. The trial court did not err in refusing to recognize ineffective assistance of counsel. Perry v. State, 904 So. 2d 1122, 2004 Miss. App. LEXIS 974 (Miss. Ct. App. 2004).

Evidence was insufficient to establish ineffective assistance of counsel. Edwards v. State, 749 So. 2d 291, 1999 Miss. App. LEXIS 555 (Miss. Ct. App. 1999); Holmes v. State, 754 So. 2d 529, 1999 Miss. App. LEXIS 679 (Miss. Ct. App. 1999).

Evidence was insufficient to establish ineffective assistance of counsel. Hill v. State, 749 So. 2d 1143, 1999 Miss. App. LEXIS 505 (Miss. Ct. App. 1999).

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).

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).

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).

In a prosecution for possession of marijuana with intent to distribute, in which the State connected the defendant to the marijuana by virtue of his residence in the house where the marijuana was found, the defendant was denied effective assistance of counsel in violation of his constitutional rights where his attorney failed to provide the State with a list of witnesses, 3 witnesses who allegedly would have testified that the defendant did not live in the house where the marijuana was found were consequently excluded, the defendant was forced to take the stand as the only means to present this evidence to the jury, and the defendant’s prior conviction for possession of marijuana with intent to distribute was admitted into evidence as a result of his taking the stand to testify. Stringer v. State, 627 So. 2d 326, 1993 Miss. LEXIS 440 (Miss. 1993), cert. denied, 512 U.S. 1209, 114 S. Ct. 2684, 129 L. Ed. 2d 817, 1994 U.S. LEXIS 4522 (U.S. 1994).

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 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).

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 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).

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).

Representations of a defendant charged with forcible rape was so inadequate as to amount to a denial of due process where counsel for the defense challenged no jurors for cause, made no objections to leading questions propounded by the district attorney, waived cross-examination of all prosecution witnesses, produced no defense witnesses, requested no instructions, and did little, if anything, for the defendant until after the case had been tried and a verdict returned. Mid-State Homes, Inc. v. Zumbro, 229 So. 2d 53, 1969 Miss. LEXIS 1232 (Miss. 1969).

158. – – Totality of circumstances, ineffectiveness of counsel.

Defendant’s trial counsel was not ineffective because, inter alia: (1) it was not unreasonable for trial counsel not to ask for a mistrial since the jury was not exposed to any extrajudicial influence from a juror’s statements that she might have heard something about the case, but could not be sure; and (2) counsel did not err in asking the trial court for only five minutes to consider his peremptory challenges because there was no evidence that he did not take the time given to him, he used all six of his challenges after the state’s first tender, and defendant did not suggest that trial counsel did not consider striking someone he should have; given the overwhelming circumstantial evidence in the case, the appellate court could not say, but for trial counsel’s failure to request a jury instruction on circumstantial evidence, there was a reasonable probability that the result of the trial would have been different. Turner v. State, 945 So. 2d 992, 2007 Miss. App. LEXIS 5 (Miss. Ct. App. 2007).

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).

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).

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, 1995 Miss. LEXIS 564 (Miss. 1995).

159. – – Different result or trial outcome, ineffectiveness of counsel.

Although defendant’s trial counsel was deficient in moving ore tenus for judgment notwithstanding the verdict, but not making a post-trial motion for a new trial, defendant was not prejudiced by that omission because the verdicts were not contrary to the overwhelming weight of the evidence in that the victims identified defendant as the perpetrator of armed robbery and kidnaping and defendant admitted that defendant was near the crime scene at the time of the incident. Ivory v. State, 283 So.3d 108, 2019 Miss. LEXIS 336 (Miss. 2019).

It was not error for the same judge to hear an inmate’s plea and motion for post-conviction relief, the inmate stated in his plea colloquy that he was satisfied with the assistance provided by his attorney, and a different result would not have occurred if the inmate’s attorney would have objected to the judge presiding over both hearings, such that this did not rise to the level of ineffective assistance of counsel. Gaddy v. State, 21 So.3d 677, 2009 Miss. App. LEXIS 236 (Miss. Ct. App. 2009), cert. denied, 559 U.S. 1078, 130 S. Ct. 2115, 176 L. Ed. 2d 741, 2010 U.S. LEXIS 3422 (U.S. 2010).

Even if trial counsel were deficient, defendant failed to satisfy the second prong of the Strickland test, requiring that he show that counsel’s deficient performance prejudiced his defense. The deficiencies defendant alleged failed to show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Nichols v. State, 27 So.3d 433, 2009 Miss. App. LEXIS 473 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 70 (Miss. 2010), cert. denied, 562 U.S. 849, 131 S. Ct. 97, 178 L. Ed. 2d 61, 2010 U.S. LEXIS 5836 (U.S. 2010).

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).

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).

In a delinquency proceeding, defendant did not show that she received ineffective assistance of counsel based on a failure to file pretrial motions, subpoena witnesses, or compel or exclude the production of evidence because there was no showing that the result of the proceeding would have been different had these actions been taken; moreover, the evidence showed that counsel cross-examined a victim and called two witnesses to testify. In the Interest of K.G., 957 So. 2d 1050, 2007 Miss. App. LEXIS 403 (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).

Appellate court denied an inmate’s petition for post-conviction relief on the grounds that he was denied effective assistance of counsel when the inmate could not establish that he was prejudiced by the allegedly ineffective representation. Steen v. State, 933 So. 2d 1052, 2006 Miss. App. LEXIS 529 (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).

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).

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).

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).

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).

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 postconviction 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 as he was not denied effective assistance of counsel by counsel’s failure to file a motion to dismiss based on speedy trial grounds, since his right to a speedy trial had not been 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).

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 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).

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).

Where the evidence showed that defendant’s trial counsel extensively cross-examined a victim 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).

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).

Where there was nothing in the record before the appellate court that would have permitted a meaningful analysis of what uncalled witnesses might have testified to or whether there might have been compelling reasons not to call them even if they were prepared to offer the testimony defendant in his brief contended they would, defendant’s ineffective assistance of counsel claim could only be raised by means of a motion for postconviction relief. Sharp v. State, 862 So. 2d 576, 2004 Miss. App. LEXIS 7 (Miss. Ct. App. 2004).

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).

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 picked defendant out of a photo line-up, and both were able to identify defendant at trial, and the outcome of the trial would not have been different even if defendant’s girlfriend and his family members were 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).

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).

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 which 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 pass the first prong of Strickland. 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 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 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 of someone if she did not see the crime happen 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).

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).

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 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).

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).

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).

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 admitted shooting into the camp cabin and a confession stating likewise, and counsel’s statements during closing presented an alternative defense theory, namely, that codefendant 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 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).

Where a defendant tries to introduce evidence, fails, and then testifies in accordance with the trial court’s evidentiary rulings, this is not perjury and is not ineffective assistance of counsel. Russell v. State, 849 So. 2d 95, 2003 Miss. LEXIS 297 (Miss. 2003).

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).

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).

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 (Miss. 1985) 473 So. 2d 964. Alexander v. State, 503 So. 2d 235, 1987 Miss. LEXIS 2359 (Miss. 1987).

160. – – Presumptions, ineffectiveness of counsel.

Record reflected that defendant’s trial counsel filed numerous pre-trial motions, including his successful motion to offer evidence of past sexual behavior, that counsel presented numerous witnesses for the defense, and that counsel succeeded in having count two of the indictment dismissed; in his appellate brief, defendant merely asserted that trial counsel should have considered making certain requests or objections, but defendant did not demonstrate how he was prejudiced by his counsel’s alleged errors. Thus, defendant did not overcome the presumption that his attorney’s performance fell within a wide range of reasonably professional assistance and that the decisions made by his attorney were strategic; therefore, defendant’s ineffective assistance of counsel claim failed. Poynor v. State, 2006 Miss. App. LEXIS 857 (Miss. Ct. App. Nov. 21, 2006).

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).

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).

161. – – Burden of proof, ineffectiveness of counsel.

Defense counsel’s performance was deficient on the issue of competency at the conviction phase because, after a mental evaluation of defendant was requested and ordered, counsel, given defendant’s vast history of mental health issues, should have requested a competency hearing. However, defendant failed to present any evidence that defendant suffered prejudice as a result of counsel’s failures on the issue of competency. Goodin v. State, 102 So.3d 1102, 2012 Miss. LEXIS 616 (Miss. 2012).

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).

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).

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).

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 of 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).

Defendant did not prove ineffective assistance of counsel where defendant’s assertion that he wanted to go to trial and 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 instead affirmatively expressed satisfaction with the representation of his attorney. Hill v. State, 850 So. 2d 223, 2003 Miss. App. LEXIS 655 (Miss. Ct. App. 2003).

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, 1995 Miss. LEXIS 564 (Miss. 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).

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).

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).

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).

162. – – Post-conviction remedies, ineffectiveness of counsel.

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 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).

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).

Pursuant to Miss. Const. Art. 3, § 26, defendant’s claim that his probation officer failed to advocate his cause effectively at his revocation hearing had no merit because a claim of ineffective assistance simply would not be applicable to defendant’s probation officer. Yance v. State, 30 So.3d 370, 2010 Miss. App. LEXIS 82 (Miss. Ct. App. 2010).

Trial court did not err in denying an inmate’s motion for post-conviction relief on the ground that his appellate counsel failed to note his trial counsel’s failure to investigate and challenge a juror’s inclusion on the jury because there was nothing in the record confirming that the juror actually served on the jury, and the inmate failed to show how the juror’s alleged presence on the jury prejudiced his case. Lattimore v. State, 37 So.3d 678, 2010 Miss. App. LEXIS 50 (Miss. Ct. App. 2010).

Where the record did not affirmatively show ineffectiveness of counsel of constitutional dimensions, but the parties did not stipulate that the record was adequate such that the appellate court could adequately weigh the trial judge’s findings of fact, the appellate court affirmed defendant’s conviction for the possession of stolen property without prejudice so as to allow him to further supplement the record with additional evidence and raise his ineffective assistance claim through appropriate postconviction proceedings. Tucker v. State, 47 So.3d 164, 2009 Miss. App. LEXIS 822 (Miss. Ct. App. 2009), rev'd, 47 So.3d 135, 2010 Miss. LEXIS 573 (Miss. 2010).

Defendant’s trial counsel was not ineffective for failing to file a motion for a new trial or a judgment notwithstanding the verdict because (1) defendant was granted an out-of-time appeal; and (2) even if trial counsel was deficient for failing to file post-trial motions, defendant did not shown how that deficiency resulted in prejudice to his defense since his issues on appeal were included in the record. Weaver v. State, 996 So. 2d 142, 2008 Miss. App. LEXIS 582 (Miss. Ct. App. 2008).

Although defendant argued that trial counsel was ineffective for failing to request an instruction telling the jury to regard a witness’s testimony as an accomplice with heightened scrutiny, the court did not need to reach a disposition of this issue because the record was not ripe for review of this contention, and thus, the court affirmed without prejudice to defendant’s right to raise this issue in post-conviction proceedings; there was no stipulation to the adequacy of the record by the State, post-conviction proceedings might give counsel a fair change to explain the lack of the instruction, and while normally it would be standard practice for counsel to request the instruction, on the record the court could not find that the absence of the instruction equated to ineffective assistance. Thompson v. State, 995 So. 2d 831, 2008 Miss. App. LEXIS 522 (Miss. Ct. App. 2008).

In an armed robbery case, defendant’s ineffective assistance of counsel claim was not addressed because there was no stipulation by the parties that the record was accurate, and the record did not affirmatively show ineffectiveness of constitutional dimensions. Brownlee v. State, 972 So. 2d 31, 2008 Miss. App. LEXIS 15 (Miss. Ct. App. 2008).

In a petition for post-conviction relief, the inmate’s counsel was not ineffective because he failed to allege ineffective assistance of counsel with enough specificity and the outcome of the proceedings would not have been different because defendant admitted that he was guilty of the crime of statutory rape; thus, under Miss. Code Ann. §99-39-11(a), the trial court properly dismissed the ineffective assistance of counsel claim without an evidentiary hearing. Brooks v. State, 953 So. 2d 291, 2007 Miss. App. LEXIS 201 (Miss. Ct. App. 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).

Parties did not stipulate that the record was adequate to allow the appellate court to make the finding of ineffective assistance of counsel without consideration of the findings of fact of the trial judge, and the record did not affirmatively show ineffectiveness of constitutional dimensions; accordingly, defendant could raise his ineffective assistance of counsel claim in a post-conviction relief proceeding. Terrell v. State, 952 So. 2d 998, 2006 Miss. App. LEXIS 816 (Miss. Ct. App. 2006).

Denial of the inmate’s motion for postconviction 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).

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).

Post-conviction relief was properly denied in a burglary case because appellant did not receive ineffective assistance of counsel, as appellant responded to the trial judge’s questioning that his attorney discussed the case with him thoroughly and completely, and that he was satisfied with his attorney’s services. Appellant also did not contend that his attorney failed to show his innocence or any violations in his prosecution. Christie v. State, 915 So. 2d 1073, 2005 Miss. App. LEXIS 852 (Miss. Ct. App. 2005).

At the guilty plea hearing, the trial judge asked defendant whether he was satisfied with the services of his attorney, to which defendant indicated that he was satisfied with his attorney’s representation. In his postconviction action, defendant failed to place before the trial court evidence of such weight as to establish that his prior sworn statement of satisfaction with his attorney should be disregarded and his assertion that counsel was ineffective for having had limited contact with defendant prior to the guilty plea hearing was rejected. Thomas v. State, 883 So. 2d 1197, 2004 Miss. App. LEXIS 963 (Miss. Ct. App. 2004).

Where defendant had a postconviction 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, postconviction 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).

Defendant was not entitled to a free transcript in a postconviction relief setting because his postconviction 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’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).

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).

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).

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).

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).

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 postconviction proceedings. Read v. State, 430 So. 2d 832, 1983 Miss. LEXIS 2525 (Miss. 1983).

163. – Victim statements, ineffectiveness of counsel.

In defendant’s capital murder case, where the trial court did not err in admitting the statement of the victim, appellate counsel was not ineffective for 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).

164. Abatement ab initio.

Deceased defendant’s appeal of a criminal conviction was dismissed because the abatement ab initio doctrine was rejected, as (1) the defendant’s victim had the right to be treated with dignity, fairness, and respect, (2) the defendant’s rights had been observed, and (3) the defendant’s estate or personal representative did not seek to be substituted. Payton v. State, 266 So.3d 630, 2019 Miss. LEXIS 123 (Miss. 2019).

ATTORNEY GENERAL OPINIONS

Where alleged perjured testimony was given in Oktibbeha County, proper jurisdiction over the matter would lie in the Circuit Court of that county. Burns, Nov. 5, 2004, A.G. Op. 04-0544.

RESEARCH REFERENCES

ALR.

Use in criminal case of testimony given on former trial, or preliminary examination, by witness not available at present trial. 15 A.L.R. 495; 79 A.L.R. 1392; 122 A.L.R. 425; 159 A.L.R. 1240.

Right of defendant in criminal case to conduct defense in person. 17 A.L.R. 266; 77 A.L.R.2d 1233.

Effect of, and remedy for, infringement of right of accused to communicate with his attorney. 23 A.L.R. 1382; 54 A.L.R. 1225; 5 A.L.R.3d 1360.

Presence of accused during view by jury. 30 A.L.R. 1357, 90 A.L.R. 597.

Right of defendant in a criminal case to cross-examine a codefendant who has taken the stand in his own behalf. 33 A.L.R. 826.

Constitutional guaranty of right to appear by counsel as applicable to misdemeanor case. 42 A.L.R. 1157.

Remedy for delay in bringing accused to trial or to retrial after reversal. 58 A.L.R. 1510.

Right to take finger prints and photographs of accused before trial, or to retain same in police record after acquittal or discharge of accused. 83 A.L.R. 127.

Brevity of time between assignment of counsel and trial as affecting question whether accused is denied right to assistance of counsel. 84 A.L.R. 544.

Constitutionality of statute permitting state to take or use in evidence depositions in criminal case. 90 A.L.R. 377.

Brief voluntary absence of defendant from court room during trial of criminal case as ground of error. 100 A.L.R. 478.

Constitutional or statutory right of accused to speedy trial as affected by his incarceration for another offense. 118 A.L.R. 1037.

Waiver or loss of defendant’s right to speedy trial in criminal case. 129 A.L.R. 572; 57 A.L.R.2d 302.

Relief in habeas corpus for violation of accused’s right to assistance of counsel. 146 A.L.R. 369.

Duty of court when appointing counsel for defendant to name attorney other than one employed by, or appointed for, a codefendant. 148 A.L.R. 183.

Plea of guilty without advice of counsel. 149 A.L.R. 1403.

Privilege against self-incrimination as available to member or officer of unincorporated association as regards its books or papers. 152 A.L.R. 1208.

Privilege against self-incrimination as applicable to testimony that one has been compelled to give in another jurisdiction. 154 A.L.R. 994.

Exclusion of public during criminal trial. 156 A.L.R. 265, 48 A.L.R.2d 1436.

Right of defendant in criminal case to discharge of, or substitution of other counsel for, attorney appointed by court to represent him. 157 A.L.R. 1225.

Right to aid of counsel in application or hearing for habeas corpus. 162 A.L.R. 922.

Comment Note: Right to jury trial as to fact essential to action or defense but not involving merits thereof. 170 A.L.R. 383.

Requiring defendant in criminal case to exhibit self, or perform physical acts, during trial and in presence of jury. 171 A.L.R. 1144.

Suppression before indictment or trial of confession unlawfully obtained. 1 A.L.R.2d 1012.

Duty to advise as to right to assistance of counsel. 3 A.L.R.2d 1003.

Use in subsequent prosecution of self-incriminating testimony given without invoking privilege. 5 A.L.R.2d 1404.

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.

Power of prosecuting attorney to extend immunity from prosecution to witness claiming privilege against self-incrimination. 13 A.L.R.2d 1439.

Pretrial requirement that suspect or accused wear or try on particular apparel as violating constitutional rights. 18 A.L.R.2d 796.

Right of witness to refuse to answer, on the ground of self-incrimination, as to membership in or connection with party, society, or similar organization or group. 19 A.L.R.2d 388.

Absence of counsel for accused at time of sentence as requiring vacation thereof or other relief. 20 A.L.R.2d 1240.

Absence of accused at return of verdict in felony case. 23 A.L.R.2d 456.

Finger prints as evidence. 28 A.L.R.2d 1115.

Right of witness to claim privilege against self-incrimination on subsequent criminal trial after testifying to same matter before grand jury. 36 A.L.R.2d 1403.

Waiver or loss of accused’s right to speedy trial. 57 A.L.R.2d 302.

Representation by unlicensed counsel as compliance with constitutional right of accused to counsel. 68 A.L.R.2d 1141.

Testifying in civil proceeding as waiver of privilege against self-incrimination. 72 A.L.R.2d 830.

Duty of court to inform accused not represented by counsel of his right not to testify. 79 A.L.R.2d 643.

Criminal trial of deaf, mute, or blind person. 80 A.L.R.2d 1084.

Delay in filing of charge and arrest of accused as violation of right to speedy trial. 85 A.L.R.2d 980.

Exclusion or absence of defendant pending trial of criminal case, from courtroom or from conference between court and attorneys, during argument on question of law. 85 A.L.R.2d 1111.

Necessity of informing suspect of rights under privilege against self-incrimination, prior to police interrogation. 10 A.L.R.3d 1054.

Requiring suspect or defendant in criminal case to demonstrate voice for purposes of identification. 24 A.L.R.3d 1261.

Right of accused to have evidence or court proceedings interpreted. 36 A.L.R.3d 276.

Validity and construction of constitution or statute authorizing exclusion of public in sex offense cases. 39 A.L.R.3d 852.

XYY syndrome as affecting criminal responsibility. 42 A.L.R.3d 1414.

Propriety of requiring accused to give handwriting exemplar. 43 A.L.R.3d 653.

Admissibility, in civil action, of confession or admission which could not be used against party in criminal prosecution because obtained by improper police methods. 43 A.L.R.3d 1375.

Determination of indigency of accused entitling him to appointment of counsel. 51 A.L.R.3d 1108.

Indigent accused’s right to choose particular counsel appointed to assist him. 66 A.L.R.3d 996.

Admissibility, in state probation revocation proceedings, of incriminating statement obtained in violation of Miranda Rule. 77 A.L.R.3d 669.

Illness or incapacity of judge, prosecuting officer or prosecution witness as justifying delay in bringing accused speedily to trial-state cases. 78 A.L.R.3d 297.

Right of indigent parent to appointed counsel in proceeding for involuntary termination of parental rights. 80 A.L.R.3d 1141.

Accused’s right to represent himself in state criminal proceeding-modern state cases. 98 A.L.R.3d 13.

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.

Adequacy of defense counsel’s representation of criminal client regarding right to and incidents of jury trial. 3 A.L.R.4th 601.

Mental subnormality of accused as affecting voluntariness or admissibility of confession. 8 A.L.R.4th 16.

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.

Concern for possible victim (rescue doctrine) as justifying violation of Miranda requirements. 9 A.L.R.4th 595.

Adequacy of defense counsel’s representation of criminal client regarding guilty pleas. 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 postconviction 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.

Conditions interfering with accused’s view of witness as violation of right of confrontation. 19 A.L.R.4th 1286.

Right of accused to be present at suppression hearing or at other hearing or conference between court and attorneys concerning evidentiary questions. 23 A.L.R.4th 955.

Effect of juror’s false or erroneous answer on voir dire in personal injury or death action as to previous claims or actions for damages by himself or his family. 38 A.L.R.4th 267.

Deafness of juror as ground for impeaching verdict, or securing new trial or reversal on appeal. 38 A.L.R.4th 1170.

Application of speedy trial statute to dismissal or other termination of prior indictment or information and bringing of new indictment or information. 39 A.L.R.4th 899.

Propriety of use of multiple juries at joint trial of multiple defendants in state criminal prosecutions. 41 A.L.R.4th 1189.

Jury trial waiver as binding on later state civil trial. 48 A.L.R.4th 747.

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.

Standing of media representatives or organizations to seek review of, or to intervene to oppose, order closing criminal proceedings to public. 74 A.L.R.4th 476.

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.

When does delay in imposing sentence violate speedy trial provision. 86 A.L.R.4th 340.

Necessity that waiver of accused’s right to testify in own behalf be on the record. 90 A.L.R.4th 586.

Exclusion of public and media from voir dire examination of prospective jurors in state criminal case. 16 A.L.R.5th 152.

Propriety, under state constitutional provisions, of granting use or transactional immunity for compelled incriminating testimony–post-Kastigar cases. 29 A.L.R.5th 1.

Propriety of exclusion of press or other media representatives from civil trial. 39 A.L.R.5th 103.

Gestures, facial expressions, or other nonverbal communication of trial judge in criminal case as ground for relief. 45 A.L.R.5th 531.

Use of peremptory challenges to exclude Caucasian persons, as a racial group, from criminal jury–post-Batson state cases. 47 A.L.R.5th 259.

Coercive conduct by private person as affecting admissibility of confession under state statutes or constitutional provisions–post-Connelly cases. 48 A.L.R.5th 555.

Duty of prosecutor to present exculpatory evidence to state grand jury. 49 A.L.R.5th 639.

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.

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.

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.

Denial of accused’s request for initial contact with attorney – drunk driving cases. 109 A.L.R.5th 611.

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.

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.

Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Guilty Pleas - Coercion or Duress. 19 A.L.R.6th 411.

What Constitutes “Custodial Interrogation” at Hospital by Police Officer Within Rule of Miranda v. Arizona Requiring That Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation - Suspect Injured or Taken Ill. 25 A.L.R.6th 379.

What Constitutes ‘Custodial Interrogation‘ of Juvenile by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of Federal Constitutional Rights Before Custodial Interrogation - At Police Station or Sheriff’s Office. 26 A.L.R.6th 451.

Comment Note: Construction and Application of Supreme Court’s Ruling in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv. 1077 (2004), with Respect to Confrontation Clause Challenges to Admissibility of Hearsay Statement by Declarant Whom Defendant Had No Opportunity to Cross-Examine. 30 A.L.R.6th 1.

What Constitutes “Custodial Interrogation” at Hospital by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation – Suspect Hospital Patient. 30 A.L.R.6th 103.

What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of Federal Constitutional Rights Before Custodial Interrogation – Upon Hotel Property. 45 A.L.R.6th 337.

When Does Use of Pepper Spray, Mace, or Other Similar Chemical Irritants Constitute Violation of Constitutional Rights. 65 A.L.R.6th 93.

What Constitutes ‘Custodial Interrogation‘ Within Rule of Requiring that Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation – At Border or Functional Equivalent of Border. 68 A.L.R.6th 607.

Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Search and Seizure Issues – Pretrial Motions – Suppression Motions Where No Warrant Involved. 71 A.L.R.6th 1.

Reverse-Franks Claims, Where Police Arguably Omit Facts from Search or Arrest Warrant Affidavit Material to Finding of Probable Cause with Reckless Disregard for the Truth – Underlying Sexual Offenses. 74 A.L.R.6th 69.

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 proceedings. 27 A.L.R. Fed. 485.

Right of witness in federal court to claim privilege against self-incrimination after giving sworn evidence on same matter in other proceedings. 42 A.L.R. Fed. 793.

Excludable periods of delay under Speedy Trial Act (18 USCS §§ 3161-3174). 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.

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.

Effect on federal criminal proceeding of unavailability to defendant of alien witness through deportation or other government action. 56 A.L.R. Fed. 698.

Effect on operation of Speedy Trial Act (18 USCS §§ 3161 et seq.) of indictment returned by grand jury whose term has expired. 64 A.L.R. Fed. 916.

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.

Application, to drug or narcotic records maintained by druggist or physician, of “required records” exception to privilege against self-incrimination. 96 A.L.R. Fed. 868.

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.

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.

Criminal Defendant’s Right to Electronic Recordation of Interrogations and Confessions. 69 A.L.R.6th 579.

Reverse-Franks Claims, Where Police Arguably Omit Facts from Search or Arrest Warrant Affidavit Material to Finding of Probable Cause with Reckless Disregard for Truth – Underlying Drug Offenses. 73 A.L.R.6th 49.

Necessity or Propriety of Court’s Provision of Cocounsel to Criminal Defendant Who Is Already Represented by Counsel – State Prosecutions. 83 A.L.R.6th 465.

Fifth Amendment Privilege Against Self-Incrimination as Applied to Compelled Disclosure of Password or Production of Otherwise Encrypted Electronically Stored Data. 84 A.L.R.6th 251.

Right of enemy combatant to counsel. 184 A.L.R. Fed. 527.

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 183 et seq.

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).

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).

CJS.

C.J.S. Criminal Law §§ 177 to 186, 277, 578 to 621, 1115, 1120, 1134 to 1141.

C.J.S. Declaratory Judgments § 155.

C.J.S. Federal Civil Procedure §§ 943 to 954.

C.J.S. Indictments and Informations §§ 2, 4.

C.J.S. Juries §§ 2 to 310, 354 to 367, 396, 409, 443 to 461.

C.J.S. Witnesses §§ 2, 431 to 457.

Lawyers’ Edition.

Admissibility of pretrial confession in criminal case. 22 L. Ed. 2d 872.

Accused’s right, under Federal Constitution, to be present at his trial. 25 L. Ed. 2d 931.

Distinction between “petty” and “serious” offenses for purposes of federal constitutional right to trial by jury. 26 L. Ed. 2d 916.

Validity, under Federal Constitution, of state recoupment statutes permitting state to recover counsel and other legal fees expended for benefit of indigent criminal defendants. 32 L. Ed. 2d 936.

Jury in second murder trial held to be impartial despite pretrial publicity and ambiguity in testimony of jurors challenged for cause. 81 L. Ed. 2d 847.

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 comments by prosecuting attorney violate accused’s privilege against self-incrimination under Federal Constitution’s Fifth Amendment.99 L. Ed. 2d 926.

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.

Law Reviews.

1978 Mississippi Supreme Court Review: Criminal Law and Procedure. 50 Miss. L. J. 59, March 1979.

Collins, Reliance on State Constitutions: Some Random Thoughts. 54 Miss L. J. 371, Sept.-Dec., 1984.

1985 Mississippi Supreme Court Review-Criminal Law. 55 Miss. L. J. 789, December 1985.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond. 56 Miss L. J. 73, April, 1986.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

DuBose, The Florida Star “happy 200th” to the first amendment, but a setting sun for victims’ privacy? 10 Miss CL Rev. 193, Spring, 1990.

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, 2:2, 4:1, 14:25, 15:1.