Glynn Stevens v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI
NO. 1999-KA-01779-SCT
GLYNN STEVENS
v.
STATE OF MISSISSIPPI
ON MOTION FOR REHEARING
DATE OF JUDGMENT: 09/23/1999
TRIAL JUDGE: HON. JAMES E. GRAVES, JR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: DONALD W. BOYKIN
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JEAN SMITH VAUGHN
DISTRICT ATTORNEY: EDWARD J. PETERS
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 02/28/2002
MOTION FOR REHEARING FILED: 11/29/2001
MANDATE ISSUED: 3/7/2002

EN BANC.

SMITH, PRESIDING JUSTICE, FOR THE COURT:

¶1. The motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted
therefor.

¶2. Glynn Stevens appeals his conviction for manslaughter in the Circuit Court of Hinds County, First
Judicial District. Initially, Stevens and two co-defendants were indicted for murder and aggravated assault.
Stevens pled guilty to aggravated assault and received a sentence of seven years in the custody of the
Mississippi Department of Corrections. Stevens and the two co- defendants were tried together for murder.
Stevens was convicted of manslaughter and his co-defendants of murder. Stevens appealed his conviction,
and this Court reversed and remanded for a new trial on the ground that Stevens's trial should have been
severed from that of his co-defendants. Stevens v. State, 717 So. 2d 311 (Miss. 1998) (hereinafter
Stevens I). Stevens was indicted a second time and again convicted of manslaughter. The Honorable
James E. Graves, Jr. sentenced Stevens to a term of twenty years in prison. Stevens timely appealed his
conviction to this Court.

FACTS

¶3. This case arises from the April 28, 1995, shooting death of seventeen-year-old Jason Brown and the
aggravated assault of Patrick Holiday. The record reflects that the appellant, Glynn Stevens, accompanied
Patrick Cavett, Robert Strahan, and Calvin Shelton to the Metrocenter Mall on the evening in question with
the intent of stealing an automobile. Upon their arrival at the mall parking lot, the four decided to steal
Brown's Chevrolet Malibu. Brown and Holiday left the parking lot in Brown's Malibu with Brown driving
and Holiday in the passenger seat. Stevens, Cavett, Strahan, and Shelton followed in a Mercury Cougar
driven by Cavett. Stevens was riding in the front passenger seat, and Shelton and Strahan were in the
backseat.

¶4. The four occupants in the Mercury followed Brown's Malibu along several streets in West Jackson,
flashing their lights, still intent on stealing the car. Strahan testified that they eventually decided against
stealing the Malibu and ceased following the Malibu, planning instead to go to a party. Nevertheless, when
Brown stopped at a traffic light, the Mercury, coincidentally according to Strahan, pulled up behind
Brown's Malibu in the lane to the left of the Malibu.

¶5. Holiday got out of the Malibu, walked around the back of the Malibu, and approached the Mercury.
Holiday asked why the four occupants were following them. Strahan testified that he waved an unloaded
.38 caliber pistol at Holiday, who was unarmed, and instructed Holiday to get away from the car. Strahan
stated that Holiday began backing up and running toward the Malibu. According to Strahan, Stevens began
firing a .22 caliber revolver, and Cavett fired a 9 millimeter automatic. Shelton, who did not have a gun,
never fired. Holiday testified that he saw Stevens and Cavett, the occupants of the front seat, shooting.
Holiday also testified that one of the occupants of the backseat was shooting, though his testimony was
confused as to where the two occupants on the backseat were sitting.

¶6. As he was running back to the Malibu, Holiday was shot in the leg. During the shooting, Brown
remained in the car, and he was shot in the head. Brown died after Holiday drove him to University
Hospital.

¶7. Because the bullet could not be removed from Holiday's leg, whose gun fired the bullet could not
determined. However, the transcript from Stevens's plea hearing on the aggravated assault charge contains
Stevens's testimony that he shot Holiday with a .22 caliber pistol. The projectile removed from Brown's
head indicated that he was shot with either a .38 or a 9 millimeter. John Dial, accepted as an expert in
firearms examination and ballistics, testified that the projectile from Brown's head could not have been from
a .22 caliber pistol. On August 8, 1995, Stevens, Shelton, Cavett, and Strahan were indicted for Brown's
murder. Stevens I, 717 So. 2d at 312. Stevens pled guilty to the aggravated assault of Holiday on August
12, 1995, and he received a sentence of seven years, to run consecutively to any sentence received on the
manslaughter charge. Stevens, Cavett, and Strahan were tried together for Brown's murder, and Shelton
testified against them. Id. at 312. On February 23, 1996, the jury found Stevens guilty of manslaughter, and
he was sentenced to twenty years in prison. Id. Stevens appealed his conviction to this Court, and on July
23, 1998, this Court reversed Stevens's conviction and remanded for a new trial on the grounds that
Stevens's trial should have been severed from that of his co-defendants. Id. at 313.

¶8. It is here that the procedural posture of this case diverges from the norm. On July 6, 1999, the original
date scheduled for Stevens's second trial, the only indictment in existence was the original indictment which
charged Stevens with murder. As stated previously, Stevens was convicted at the first trial of the lesser
offense of manslaughter. Though this Court reversed that conviction and remanded for a new trial, because
Stevens was necessarily acquitted of the murder charge during the first trial, the State was unable to pursue
for a second time a conviction on the murder charge. Necessarily, the State was relegated to seek a
conviction of the lesser offense.

¶9. On July 6, 1999, the date originally set for Stevens's retrial, Stevens argued for the first time that the
indictment did not give him notice of the manslaughter statute pursuant to which the State was seeking to
convict him. The trial court denied Stevens's motion to dismiss the indictment, but granted Stevens's request
for a continuance. Though the trial court did not order the State to do so, the State obtained a second
indictment, charging Stevens with manslaughter pursuant to Miss.Code Ann. § 97-3-27, filed August 12,
1999. On September 7, 1999, the second date set for trial, Stevens filed a motion to dismiss the second
indictment. The trial court again denied the motion.

¶10. Stevens's trial began September 7, 1999, before Hinds County Circuit Court Judge James E. Graves,
Jr. The trial court denied Stevens's motion for directed verdict at the close of the State's case-in-chief.
Stevens put on no evidence of his own, and his renewed motion for directed verdict was denied by the trial
court, as was his request for a peremptory instruction. The jury found Stevens guilty of manslaughter, and
Stevens was sentenced to twenty years in prison. On October 12, 1999, the trial court denied Stevens's
motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.

¶11. Aggrieved, Stevens timely appealed to this Court on October 21, 1999. He raises the following issues:

I. THE TRIAL COURT ERRED IN DENYING STEVENS'S MOTION TO DISMISS
FOR FAILURE TO GRANT A SPEEDY TRIAL.

II. THE TRIAL COURT ERRED IN DENYING STEVENS'S DEMURRER TO THE
INDICTMENT.

III. THE TRIAL COURT ERRED IN GRANTING INSTRUCTION S-1.

IV. THE VERDICT OF THE JURY WAS UNSUPPORTED BY THE EVIDENCE, AND
THE TRIAL COURT ERRED IN DENYING STEVENS'S PEREMPTORY
INSTRUCTION AND MOTION FOR DIRECTED VERDICT.

V. THE TRIAL COURT ERRED IN REFUSING INSTRUCTION D-5.

VI. THE TRIAL COURT ERRED IN GRANTING CONFLICTING JURY
INSTRUCTIONS, S-1 AND D-6.

VII. THE TRIAL COURT ERRED IN REFUSING INSTRUCTION D-18.

VIII. THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE A
PHOTOGRAPH OF THE VICTIM.

IX. THE TRIAL COURT ERRED IN ADMITTING THE AUTOPSY PHOTOGRAPH OF
BROWN'S HEAD.

X. THE TRIAL COURT ERRED IN REFUSING TO ALLOW STEVENS TO QUESTION
WITNESSES CONCERNING STRAHAN'S EXERCISING HIS RIGHT TO REMAIN
SILENT.

XI. THE TRIAL COURT ERRED IN REFUSING TO STRIKE TESTIMONY
CONCERNING THE BULLET RECOVERED FROM HOLIDAY'S LEG.

DISCUSSION
 I. THE TRIAL COURT ERRED IN DENYING STEVENS'S MOTION TO DISMISS
FOR FAILURE TO GRANT A SPEEDY TRIAL.

¶12. Stevens argues that the trial court erred in denying his motion to dismiss for violation of his
constitutional right to a speedy trial as secured by the Sixth and Fourteenth Amendments to the United
States Constitution and Art. 3, § 26 of the Mississippi Constitution. Stevens points to the fact that the
mandate from Stevens I, reversing his original conviction and remanding for a new trial, was issued on
August 17, 1998, and that his retrial did not commence until September 7, 1999--some 386 days later.

¶13. Stevens filed a demand for speedy trial on December 18, 1998, and he filed a motion to dismiss for
failure to grant a speedy trial on July 2, 1999. On July 6, 1999, the day originally set for trial, the trial court
conducted a hearing on the motion to dismiss. In denying Stevens's motion, the trial judge stated that any
delay was caused by the fact that he had been involved in trials from February 16, 1999, through June 23,
1999, and that there was no evidence that the State sought to gain any tactical advantage by the delay. The
trial judge found that the delay was not unreasonable and also noted that Stevens was incarcerated through
November 5, 1998, on the sentence for aggravated assault.

¶14. Miss.Code Ann. § 99-17-1 (2000) requires that an accused be brought to trial within 270 days of his
indictment unless there is good cause for a delay. However, the 270-day rule does not apply to retrials;
therefore, Stevens is relegated to the constitutional speedy trial standards. See Mitchell v. State, 572 So.
2d 865, 870 (Miss. 1990) (citing Kinzey v. State, 498 So. 2d 814 (Miss. 1986)).

¶15. Stevens argues that Mitchell and Kinzey do not apply because neither involved a defendant who was
reindicted prior to the second trial. However, Stevens also refuses to accept technical application of the
270-day rule in the event that Mitchell and Kinzey do not apply, presumably because application of the
270-day rule in this case would result in the rejection of Stevens's allegation of error because the second
indictment was issued less than one month before trial. Rather, Stevens urges this Court to apply the intent
or spirit of the 270-day rule as a measure of the State's failure to grant a speedy trial.

¶16. This Court has stated that if a case is reversed on appeal for retrial, the time for retrial becomes a
matter of discretion with the trial court to be measured by the constitutional standards of reasonableness and
fairness under the constitutional right to a speedy trial as enunciated in Barker v. Wingo, 407 U.S. 514, 92
S.Ct. 2182, 33 L.Ed.2d 101 (1972). Carlisle v. State, 393 So. 2d 1312, 1314 (Miss. 1981). In Barker,
the United States Supreme Court announced a four-part balancing test to be applied on a case-by-case
basis: (1) length of delay, (2) reason for delay, (3) defendant's assertion of his right, and (4) prejudice to the
defendant. Barker, 407 U.S. at 530, 92 S.Ct. at 2192. This Court has recognized that:

No mathematical formula exists according to which the Barker weighing and balancing process must
be performed. The weight to be given each factor necessarily turns on the quality of evidence available
on each and, in the absence of evidence, identification of the party with the risk of nonpersuasion. In
the end, no one factor is dispositive. The totality of the circumstances must be considered.

DeLoach v. State, 722 So. 2d 512, 516 (Miss. 1998) (quoting Beavers v. State, 498 So. 2d 788, 790
(Miss. 1986), overruled on other grounds, State v. Ferguson, 576 So. 2d 1252, 1255 (Miss. 1991)).

¶17. The following chronology is helpful in analyzing this issue:

May 5, 1995 Arrested and Incarcerated.
 Aug. 8, 1995 Original indictment issued.

Aug. 12, 1995 Stevens enters guilty plea to aggravated assault on Patrick Holiday. Receives seven-
year sentence.

Feb. 20-23, 1996 First trial. Stevens is convicted of manslaughter.

July 23, 1998 Stevens's conviction for manslaughter reversed and remanded for new trial.

Aug. 17, 1998 Issuance of the mandate in Stevens I.

Nov. 5, 1998 Stevens allegedly flat-times his sentence for aggravated assault.

Dec. 18, 1998 Stevens files demand for speedy trial.

July 2, 1999 Stevens files motion to dismiss for failure to have speedy trial.

July 6, 1999 Original trial date. Hearing on motion to dismiss - denied. Continuance granted.

Aug. 12, 1999 Second indictment issued.

Sept. 7, 1999 Second trial.

1. Length of Delay

¶18. The speedy trial clock begins to run for purposes of determining a violation of a defendant's right to
speedy retrial on the date this Court reverses his first conviction. Duplantis v. State, 708 So. 2d 1327,
1334 (Miss.1998) (citing State v. Ferguson, 576 So. 2d 1252, 1254 (Miss. 1991)). The speedy trial
clock began to run in this case on August 17, 1998, the date of the issuance of the mandate in Stevens I.
See Duplantis, 708 So. 2d at 1334 (clock runs from issuance of mandate). Stevens was not retried until
September 7, 1999, 386 days after the court's reversal. This was a delay of more than 12 months. A delay
of eight months or longer is presumptively prejudicial. Simmons v.. State, 678 So. 2d 683, 686
(Miss.1996). This factor must be weighed in favor of Stevens. However, presumptive prejudice alone is
insufficient to allow the defendant to prevail on speedy trial grounds. Hurns v. State, 616 So. 2d 313, 317
(Miss.1993) (citing Doggett v. United States, 505 U.S. 647, 656, 112 S.Ct. 2686, 120 L.Ed.2d 520
(1992)). It merely mandates that this Court examine the remaining factors that go into the balance. Barker,
407 U.S. at 530, 92 S.Ct. at 2192. 2. Reason for Delay

¶19. Once this Court finds the delay presumptively prejudicial, the burden shifts to the prosecution to
produce evidence justifying the delay. See Humphrey v. State, 759 So. 2d 368, 375 (Miss. 2000);
Ferguson, 576 So. 2d at 1254. At the hearing on Stevens's motion to dismiss, the prosecution argued that
the delay was caused by the fact that the court had been involved in two lengthy civil trials since February
1999. The trial judge confirmed that he had been in trial from February 16, 1999, through June 23, 1999.

¶20. A neutral reason such as overcrowded courts should be weighted less heavily than would a deliberate
attempt to hamper the defense, but nevertheless should be considered since the ultimate responsibility of the
State for such circumstances rests with the government rather than the defendant. Barker, 407 U.S. at 531,
92 S.Ct. 2182, 33 L.Ed.2d 101. As a general rule, delays resulting from docket congestion are to be
weighed against the State, but not heavily. Skaggs v. State, 676 So. 2d 897, 901 (Miss. 1996); Adams v.
State, 583 So. 2d 165, 169 (Miss. 1991).

¶21. Nevertheless, if the State can positively demonstrate that the backlog actually caused the delay, then
the trial court's denial of a defendant's motion to dismiss may be proper since docket congestion can
constitute "good cause" for delay. McGee v. State, 608 So. 2d 1129, 1133 (Miss. 1992). In the case at
hand, though the trial judge stated he had been in trial from February 1999 through June 1999, the record
does not reflect that the docket for the entire circuit court was previously filled with other cases during this
period, nor does it reflect that the docket was full for the months prior to February 1999. Furthermore,
though the record from the pretrial hearing contains references by the prosecutor and trial judge to
continuances granted for this reason, the record contains no such continuances. This factor must weigh
slightly against the State. However, we also observe that there is no indication that the State purposefully
delayed the trial or that it sought to gain any tactical advantage by the delay.

3. Assertion of Right to a Speedy Trial

¶22. The State bears the burden of bringing a defendant to trial in a speedy manner. Sharp v. State, 786
So. 2d 372, 381 (Miss. 2001); State v. Magnusen, 646 So. 2d 1275, 1283 (Miss. 1994). "Although the
defendant has neither a duty nor an obligation to bring himself to trial, points are placed on his side of the
ledger when, as here, he has made a demand for a speedy trial." Magnusen, 646 So. 2d at 1283. In the
case at hand, Stevens demanded a speedy trial on December 18, 1998, and filed a motion to dismiss on
July 2, 1999, four days prior to the original date set for trial. This factor weighs in favor of Stevens.

4. Prejudice to the Defendant

¶23. Stevens does not bear the burden of proving actual prejudice in this case. On the contrary, when the
length of delay is presumptively prejudicial, the burden of persuasion is on the State to show that the delay
did not prejudice the defendant. State v. Ferguson, 576 So. 2d 1252, 1254 (Miss. 1991). However, if
the defendant fails to make a showing of actual prejudice to his defense, this prong of the balancing test
cannot weigh heavily in his favor. Polk v. State, 612 So. 2d 381, 387 (Miss. 1992).

¶24. This Court has explained that prejudice to the defendant may manifest itself in two ways. Duplantis,
708 So. 2d at 1336. First, the defendant may suffer because of the restraints to his liberty, whether it be the
loss of his physical freedom, loss of a job, loss of friends or family, damage to his reputation, or anxiety. Id.
Second, the delay may actually impair the accused's ability to defend himself. Id.

1. Did Stevens suffer unreasonable restraints to his liberty as a result of the delay?

¶25. By Stevens's own admission, he would have been in prison until at least November 5, 1998, serving
his sentence for the aggravated assault. This Court indicated in Duplantis that a defendant cannot complain
of restrictions on his liberty interests which occur during the time in which he was serving another sentence.
Id. at 1336. Thus, Stevens remained in prison precisely eight months solely awaiting the initial date set for
his trial and ten months awaiting the ultimate trial date.

¶26. Stevens testified at the hearing on the motion to dismiss that he received threats from another inmate
while in prison which caused him anxiety. While this Court has never stated that such concern and anxiety
are to be dismissed without consideration, it has held that "anxiety alone does not amount to prejudice
worthy of reversal." Id. at 1336.
 2. Did the delay actually impair Stevens's ability to defend himself?

¶27. The Supreme Court in Barker stated that the possibility that the defense will be impaired is the most
important of the interests named above. Barker, 407 U.S. at 532, 92 S.Ct. at 2182. Though Stevens
testified at the pretrial hearing regarding concerns and anxiety he faced in prison during this period, he made
absolutely no showing that the delay in any way impaired his defense, and his argument to this Court
contains no such allegation. In Kolberg v. State, 704 So. 2d 1307 (Miss.1997), this Court indicated that
there must be a showing of prejudice to an extent that the defendant could not defend against the charge,
stating:

Kolberg does not claim that because of the delay witnesses scheduled to testify for the defense
disappeared or that any evidence was lost or destroyed or any actual prejudice was incurred. There is
no showing of Kolberg being prejudiced to an extent that he could not defend against the charge, nor
is there any indication that the State engaged in oppressive conduct.

Id. at 1319.

¶28. Stevens does not allege that the delay in any way impaired his defense. Considering Stevens's failure to
allege any impairment to his defense and the fact that nearly four months of Stevens's incarceration was due
to his conviction of aggravated assault, this factor weighs in favor of the State.

¶29. This Court has stated that where the delay is neither intentional nor egregiously protracted, and there is
an absence of actual prejudice to the defense, the balance is struck in favor of rejecting a speedy trial claim.
Duplantis, 708 So. 2d at 1336 (citing Perry v. State, 637 So. 2d 871, 876 (Miss. 1994)). Upon
examination of these four factors and in consideration of the totality of the circumstances, the balance in this
case supports the State's contention that Stevens was not denied his constitutional right to a speedy trial.
The trial court did not abuse its discretion in rejecting Stevens's motion to dismiss. Accordingly, this
assignment of error is without merit.

II. THE TRIAL COURT ERRED IN DENYING STEVENS'S DEMURRER TO THE
INDICTMENT.

¶30. Stevens argues that the indictment was constitutionally inadequate to inform him of the nature and
cause of the accusation against him. An indictment must contain a plain, concise and definite written
statement of the essential facts constituting the offense charged, and it must fully notify the defendant of the
nature and cause of the accusation against him. URCCC 7.06. See also State v. Hoffman, 508 So. 2d
669, 671 (Miss. 1987) (citing URCCC 2.05, predecessor of URCCC 7.06); Winston v. State, 479 So.
2d 1093, 1094 (Miss. 1985)).

¶31. Stevens was indicted for manslaughter pursuant to Miss.Code Ann. § 97-3-27 (2000), which
provides:

The killing of a human being without malice, by the act, procurement, or culpable negligence of
another, while such other is engaged in the perpetration of any felony, except those felonies
enumerated in Section 97-3-19(2)(e) and (f),(1) or while such other is attempting to commit any
felony besides such as are above enumerated and excepted, shall be manslaughter.
The indictment charged that Stevens, "acting in conjunction with others, ... did wilfully, unlawfully and
feloniously kill and slay Jason Brown, a human being, without malice, but not in necessary self-defense,
while he, the said Glynn Stevens and others were then and there engaged in the perpetration of the felony
crime of aggravated assault of Patrick Holiday...." As a general rule, where an indictment tracks the
language of a criminal statute it is sufficient to inform the accused of the charge against him. Ward v. State,
479 So. 2d 713, 714 (Miss. 1985) (citing Hickombottom v. State, 409 So. 2d 1337 (Miss.1982);
Anthony v. State, 349 So. 2d 1066 (Miss. 1977); State v. Labella, 232 So. 2d 354 (Miss. 1970)).

¶32. Stevens argues that the indictment should have been dismissed for two reasons. First, Stevens argues
that because the indictment stated that Stevens killed Brown while Stevens "and others" were engaged in the
crime of aggravated assault and did not state the names of the "others," the indictment failed to adequately
inform him of the nature of the accusation against him. Second, Stevens argues that the indictment should
have been dismissed because it did not enumerate the elements of aggravated assault. Both arguments are
without merit.

¶33. Stevens submits Umphress v. State, 295 So. 2d 735 (Miss.1974), as controlling authority for his
assertion that the indictment was insufficient because it did not list the names of "the others." The indictment
in Umphress charged the defendant with delivering a controlled substance, but did not designate the person
to whom delivery of the substance was made, nor did it specify the time or place of the crime. Id. at 736.
This Court held that the indictment was insufficient to place the defendant on notice of the charges against
him. Id. The Court explained, "There is no logical way [Umphress] could determine which of the charges
arising on a particular day that he was being tried under." Id. at 736-37. Stevens argues that just as the
defendant in Umphress needed to know the person to whom he purportedly delivered the controlled
substance, Stevens needed to know the names of the "others" with whom he was accused of committing the
aggravated assault.

¶34. Unlike the indictment in Umphress, the indictment in the case sub judice states the date and place of
the alleged crime and specifically names both victims. The indictment clearly states the charge and gives
sufficient descriptive facts to put Stevens on notice of the accusation against him. Noteworthy is the fact that
all seven requirements of URCC 7.06 are met by the indictment, and it reasonably provides Steven with
actual notice of the charge against him, to wit: manslaughter pursuant to § 97-3-27. See Holloman v.
State, 656 So. 2d 1134, 1139 (Miss. 1995) (stating that an indictment is sufficient if it meets these
requirements). Though an indictment must sufficiently apprize a defendant of what he must be prepared to
meet, this Court has never stated the indictment must specifically set out the proof necessary for a
conviction. Furthermore, the record indicates that Stevens was well apprized of the identification of the
"others," particularly in light of the fact that they were initially indicted and tried together.

¶35. Stevens also complains that the indictment should have been dismissed because it did not enumerate
the elements of aggravated assault. Stevens argues that without having been informed of the elements of
aggravated assault which the State sought to prove at trial, he was unable to adequately prepare his
defense. Miss.Code Ann. § 97-3-7(2) (2000), the aggravated assault statute, provides in pertinent part:

(2) A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another,
or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme
indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes
bodily injury to another with a deadly weapon or other means likely to produce death or serious
 bodily harm; and, upon conviction, he shall be punished by imprisonment in the county jail for not
more than one (1) year or in the penitentiary for not more than twenty (20) years.

This Court noted in Ward v. State, 479 So. 2d 713, 715 (Miss. 1985), that this statute may be used to
cover "varying factual situations of considerable latitude." The indictment did not contain a reference to the
above statute. However, this Court has stated that aggravated assault has an easily ascertainable statutory
definition, and the label "aggravated assault" gives a defendant reasonable notice of what he is charged with
even without the code section number. Harbin v. State, 478 So. 2d 796, 798 (1985) (citing Jones v.
State, 461 So. 2d 686, 692-94 (Miss. 1984)). Stevens does not complain of the failure of the indictment
to reference § 97-3-7, but takes issue only with the indictment's failure to specify the particular subsection,
(2)(a) or (2)(b).

¶36. Because Stevens was charged not under a specific single subsection of § 97-3-7(2), it necessarily
follows that he was charged under both subsections comprising that section. Stevens was therefore put on
notice that he was being charged with aggravated assault under both subsections, i.e., by causing injury
under circumstances manifesting extreme indifference to the value of human life and by causing bodily injury
with a deadly weapon or other means likely to produce death or serious bodily harm.

¶37. Stevens cites State v. Berryhill, 703 So. 2d 250 (Miss. 1997), in which this Court held that a capital
murder indictment predicated on burglary is required to state with specificity the underlying offense that
comprises the burglary. Stevens states that in Berryhill, this Court held that the indictment was defective
because it failed to state the elements of burglary in the indictment. Such is a distortion of the holding in
Berryhill. In Berryhill, this Court observed that a capital murder charge that is predicated upon burglary
must include notice of the crime comprising the burglary because burglary requires as an essential element
the intent to commit another crime. Id. at 255-56. Without notice of the other crime, the accused cannot
defend the charge against him. Id.

¶38. Berryhill would be instructive in the case at hand if the indictment against Stevens merely stated that
Stevens killed Brown while engaged in the perpetration of a felony, without naming the underlying offense of
aggravated assault. The indictment, however, names the underlying offense of aggravated assault. As
observed in Berryhill, the elements of the underlying felony, burglary, contained underlying crimes.
Aggravated assault, while it may be proved on different theories, contains no underlying crime of which a
defendant must be apprized.

¶39. The record in this case indicates that Stevens was well informed of the State's theory of aggravated
assault--Stevens had previously pled guilty to the aggravated assault of Patrick Holiday, and it was upon
this underlying conviction that the manslaughter conviction was predicated. The transcript from the plea
hearing was admitted into evidence. At the plea hearing, Stevens admitted that he committed the crime of
aggravated assault upon Holiday and stated that he shot Holiday in the leg with a .22 caliber pistol. The trial
court did not err in denying Stevens's motion to dismiss the indictment.

III. THE TRIAL COURT ERRED IN GRANTING INSTRUCTION S-1.

¶40. Stevens argues that instruction S-1 should not have been granted because it did not require the jury to
find that Stevens acted wilfully, as charged in the indictment. In reviewing allegedly erroneous instructions,
this Court reviews the instructions as a whole to determine whether the jury was properly instructed.
Morgan v. State, 741 So. 2d 246 (Miss. 1999) (citing Willie v. State, 585 So. 2d 660, 680 (Miss.
1991)). "This Court does not review jury instructions in isolation." Nicholson v. State, 672 So. 2d 744,
752 (Miss. 1996) (citing Malone v. State, 486 So. 2d 360, 365 (Miss. 1986)).

¶41. Again, the indictment stated:

Glynn Stevens, acting in conjunction with others ... did wilfully, unlawfully and feloniously kill and slay
Jason Brown, a human being, without malice, but not in necessary self-defense, while he, the said
Glynn Stevens and others were and there engaged in the perpetration of the felony crime of
aggravated assault of Patrick Holiday, a human being....

S-1 provided:

The Court instructs the Jury that the killing of a human being without malice or deliberate design, while
such other is engaged in the commission of aggravated assault, as defined elsewhere in these
instructions, shall be manslaughter.

The Court instructs the jury that if two or more persons are engaged in the commission of a felony,
then the acts of each in the commission of such felony are binding upon all, and all are equally
responsible for the acts of each in the commission of such felony.

Therefore, if each of you believe from the evidence, beyond a reasonable doubt, that the defendant,
Glynn Stevens, on or about April 28, 1995, in the First Judicial District of Hinds County, Mississippi,
either alone or with another or others, was engaged in the commission of an aggravated assault as
defined in other instructions of the Court, and each of you further believe from the evidence, beyond a
reasonable doubt, that while the defendant, Glynn Stevens, was so engaged, he and another or he and
others also so engaged killed Jason Brown, a human being, without authority of law, without malice or
deliberate design, then in that event, the defendant, Glynn Stevens, is guilty of manslaughter and it is
your sworn duty to so find.

¶42. Reviewing as a whole the instructions given to the jury, it is clear that the jury was not improperly
instructed. Instruction D-6 instructed the jury that the prosecution must prove beyond a reasonable doubt
"all of the elements of the crime with which [Stevens] is charged, including that he wilfully killed and slayed
Jason Brown." Additionally, instruction S-4 stated that "any person wilfully aiding, assisting, encouraging, or
doing any material act in furtherance of, or directly contributing to, the commission of a felony is an
accessory or accomplice, and every person who is an accessory or accomplice to any felony, before or
during the fact, is deemed and considered a principal, as if he had with his own hand committed the entire
offense." In this assignment of error and the next, Stevens argues that because he was indicted as the
principal, the jury could convict him only if it found that the bullet which killed Brown was actually fired by
Stevens. This Court has stated that an aider and abettor may be properly indicted and tried as a principal.
Crossley v. State, 420 So. 2d 1376, 1381 (Miss. 1982) (citing Scales v. State, 289 So. 2d 905 (Miss.
1974)). This argument is without merit.

¶43. Stevens also complains that S-1 required a finding that Stevens was "engaged in the commission of an
aggravated assault" rather than an aggravated assault on Patrick Holiday. Stevens fails to recognize that, in
defining aggravated assault, instruction S-3 requires that the jury find that the aggravated assault was
committed upon Patrick Holiday.

¶44. Finally, Stevens asserts that the language of the indictment suggests that Stevens shot Brown, whereas
S-1 required a finding by the jury that "[Stevens] and another or [Stevens] and others" killed Brown. This
argument is without merit. The indictment states that "Stevens, acting in conjunction with others," killed
Brown.

¶45. Considering the instructions as a whole, this Court finds that the jury was properly instructed.

IV. THE VERDICT OF THE JURY WAS UNSUPPORTED BY THE EVIDENCE, AND
THE TRIAL COURT ERRED IN DENYING STEVENS'S PEREMPTORY
INSTRUCTION AND MOTION FOR DIRECTED VERDICT.

Legal Sufficiency of the Evidence

¶46. The legal sufficiency of the State's evidence may be tested by a motion for a directed verdict, a request
for a peremptory instruction and a motion for a JNOV; the standard of review of each is essentially the
same. Ellis v. State, 778 So. 2d 114, 117 (Miss. 2000) (citing Butler v. State, 544 So. 2d 816, 819
(Miss. 1989)). In addition to viewing the evidence in the light most favorable to the State, this Court must
accept as true all the evidence which supports the guilty verdict without weighing the credibility of the
evidence on appeal. Id. (citing Davis v. State, 568 So. 2d 277, 281 (Miss. 1990); Malone v. State, 486
So. 2d 360, 366 (Miss. 1986)). The prosecution receives the benefit of all favorable inferences that may
reasonably be drawn from the evidence. McFee v. State, 511 So. 2d 130, 133-34 (Miss. 1987). This
Court will reverse only where reasonable and fair-minded jurors could only find the accused not guilty.
Wetz v. State, 503 So. 2d 803, 808 (Miss.1987).

¶47. Stevens argues that the verdict must be reversed because the evidence did not show that Stevens
killed Brown. The evidence at trial showed that Stevens fired a .22 and that the projectile which killed
Brown came from either a .380 or a 9 millimeter. As discussed previously, the jury was instructed that it
could find Stevens guilty pursuant to accomplice liability, guilty as if he were a principal. Thus, even though
the evidence showed that Stevens did not fire the shot that resulted in Brown's death, the jury could hold
Stevens liable for Brown's death as an aider and abettor and return a guilty verdict. See Vaughn v. State,
712 So. 2d 721 (Miss.1998); Crossley v. State, 420 So. 2d 1376 (Miss. 1982).

¶48. Stevens also argues that no reasonable jury could find him guilty as an aider and abettor. Stevens
states that there is no evidence that he incited, encouraged, or assisted the perpetrator in killing Brown. It is
well settled that to aid and abet in the commission of a felony, one must "do something that will incite,
encourage, or assist the actual perpetrator in the commission of the crime." Vaughn, 712 So.2d at 724
(quoting Malone v. State, 486 So. 2d 360, 363 (Miss. 1986)). Stevens argues that he was merely present
at the scene of the crime and that mere presence is insufficient to convict him as an aider and abettor. See
Vaughn, 712 So.2d at 724 (citing Griffin v. State, 293 So. 2d 810, 812 (Miss. 1974) (mere presence is
insufficient)).

¶49. The trial court properly instructed the jury on these legal guidelines governing conviction as an aider
and abettor in instructions S-4, S- 5, and D-3. Stevens was not merely present for the murder of Brown.
Strahan, an eyewitness to the event, testified that Stevens fired his gun first. Strahan testified that once
Stevens began shooting, Cavett started shooting as well. Strahan stated that before Stevens started
shooting, Cavett did nothing to indicate that he was going to shoot. This testimony went undisputed. Again,
under the applicable standard of review, the prosecution receives the benefit of all favorable inferences that
may reasonably be drawn from the evidence. From Strahan's testimony, the jury could have reasonably
concluded Stevens's actions incited and encouraged the perpetrator in the commission of the crime. This
assignment of error is without merit.

Weight of the Evidence

¶50. Stevens also argues that the trial court erred in denying his alternative motion for new trial. The motion
for a new trial is addressed to the trial court's sound discretion. May v. State, 460 So. 2d 778, 781 (Miss.
1985) (citing Neal v. State, 451 So. 2d 743, 760 (Miss. 1984)). This Court will not order a new trial
unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it
to stand, would be to sanction an unconscionable injustice. Id. (citing Groseclose v. State, 440 So. 2d
297 (Miss. 1983)).

¶51. Applying this standard to the evidence before the jury, affirmance on this assignment of error is
required. The underlying crime of aggravated assault is supported by the overwhelming weight of the
evidence. Strahan and Holiday both testified that Stevens shot at Holiday. In the transcript from Stevens's
plea hearing on the aggravated assault charge, Stevens stated that he shot Holiday in the leg. Furthermore,
the undisputed testimony of two eyewitnesses to the event showed that the shooting began when Stevens
began firing his gun at Holiday. Though the evidence showed that Brown was not killed by a bullet from
Stevens's gun, the weight of the evidence supported the finding that Stevens incited and encouraged the
perpetrator in the commission of the crime charged. Such a conclusion by the jury was reasonable and not
so contrary to the weight of the evidence that allowing it to stand would result in an unconscionable
injustice.

¶52. The trial court correctly denied Stevens's request for a peremptory instruction as well as his
subsequent motion for judgment of acquittal notwithstanding the verdict of the jury. Furthermore, on this
record the trial judge acted well within his discretion when he denied Stevens's alternative motion for a new
trial.

V. THE TRIAL COURT ERRED IN REFUSING INSTRUCTION D-5.

¶53. At trial, Stevens's theory of defense was that he shot Holiday in self-defense. There was no evidence
presented at trial which indicated that either Holiday or Brown was armed. In fact, all evidence was to the
contrary. The only testimony which might support a finding of self-defense was Strahan's statement that
when Holiday approached the vehicle, Holiday had his shirttail hanging out. Stevens argues that the trial
court erred in refusing instruction D-5, which stated:

You, the jury, are not to hold Glynn Stevens to the same cool judgment which you are presently able
to have. You must give him the benefit of doubt of all circumstances and the excitement in which he
found himself at the time of the incident in this case.

¶54. The trial court did not deny a self-defense instruction altogether, but instead granted instruction D-19,
which stated:

If you find that Glynn Stevens reasonably believed that he, or any of his companions, were in apparent
danger of imminent death or serious bodily harm by Patrick Holiday, then the shots he fired in the
direction of Patrick Holiday were in necessary self defense, and you shall find him not guilty.

¶55. Where one jury instruction adequately covers the defendant's theory of self-defense, the trial court
may properly refuse to grant a second instruction on the grounds that it is redundant or cumulative. Cook v.
State, 467 So. 2d 203, 210 (Miss. 1985); Evans v. State, 457 So. 2d 957, 959 (Miss.1984).

¶56. Stevens argues that without instruction D-5, the jury was not properly instructed to consider the
circumstances existing at the time of the incident from his viewpoint. Stevens relies on Windham v. State,
91 Miss. 845, 852, 45 So. 861, 862 (1908), in which this Court held that the defendant was erroneously
denied an instruction stating that the jury should not expect from the defendant the same cool and calm
judgment they would presently possess, but instead that they should judge the defendant's acts by the facts
and circumstances existing at the time of the incident. See also Johnson v. State, 42 So. 166 (Miss.1906)
(same).

¶57. This Court addressed an identical argument in Gossett v. State, 660 So. 2d 1285, 1295 (Miss.
1995). In Gossett, the self-defense instruction given, like D-19 in the case at hand, instructed the jury that
the defendant was entitled to the defense of self-defense if he had a reasonable apprehension of imminent
danger. In Gossett this Court held that the self- defense instruction was a correct statement of the law on
self-defense and that while the self-defense instruction did not specifically address the same point made by
D-5 in the present case, the self-defense instruction accurately guided the jury on the law of self-defense.
Id. Likewise, in the case at hand, instruction D-19 accurately guided the jury on the law of self-defense.
This assignment of error is without merit.

VI. THE TRIAL COURT ERRED IN THE GRANTING CONFLICTING JURY
INSTRUCTIONS, S-1 AND D-6.

¶58. Stevens asserts that the trial court erred in giving conflicting jury instructions, S-1 and D-6. Stevens
argues that the instructions are contradictory because S-1 did not require the jury to find that Stevens
"wilfully" killed Brown, whereas D-6 did so require. Stevens's argument that instruction S-1 was improper
because it did not contain the word "wilfully" has been previously addressed in Issue III. Again, considering
the instructions as a whole, the jury was properly instructed. Furthermore, though Stevens objected at trial
to the fact that S-1 did not contain the word "wilfully," as charged in the indictment, he raised no objection
to any conflict between S-1 and D-6. "Errors based on the granting of an instruction will not be considered
on appeal unless specific objections stating the grounds are made in the trial court." Oates v. State, 421
So. 2d 1025, 1030 (Miss. 1982) (citing Collins v. State, 368 So. 2d 212 (Miss. 1979)). Therefore, this
assignment of error is procedurally barred and, alternatively, without merit.

VII. THE TRIAL COURT ERRED IN REFUSING INSTRUCTION D-18.

¶59. Stevens asserts that the trial court erred by denying instruction D-18, which stated:

"Not Guilty" does not mean the same as "innocent." It does mean, however, that the prosecution has
failed to prove, beyond a reasonable doubt, all the material elements of the crime of manslaughter.

Stevens argues that without D-18, the jurors were not informed as to the meaning of the terms presented to
them in the jury instructions, specifically, the term "not guilty."

¶60. A similar instruction was rejected by the trial court in Williams v. State, 589 So. 2d 1278, 1279
(Miss. 1991). This Court denied Williams's assignment of error on appeal, stating that the burden of proof
instructions and a presumption of innocence instruction granted by the trial court adequately informed the
jury of the presumption of Williams's innocence and the State's burden of proof. Id. at 1279-80.
¶61. In the case sub judice, the court's instructions to the jury stated:

The law presumes every person charged with the commission of a crime to be innocent. This
presumption places upon the State the burden of proving the Defendant guilty of every material
element of the crime with which he is charged. Before you can return a verdict of guilty, the State must
prove to your satisfaction beyond a reasonable doubt that the Defendant is guilty. The presumption of
innocence attends the Defendant throughout the trial and prevails at its close unless overcome by
evidence which satisfies the Jury of his/her guilt beyond a reasonable doubt. The Defendant is not
required to prove his/her innocence.

¶62. Additionally, Stevens requested and the trial court gave the following instructions:

You are bound, in deliberating upon this case, to give Glynn Stevens the benefit of every reasonable
doubt of his guilty that arises out of the evidence or lack of evidence in this case. There is always a
reasonable doubt of a defendant's guilt when the evidence simply makes it probable that he is guilty.
Mere probability of guilt does not warrant your convicting Glynn Stevens. It is only when on the whole
evidence you are able to say on your oaths, beyond a reasonable doubt, that Glynn Stevens is guilty
that the law will permit you to find him guilty. You might be able to say that you believe him to be
guilty, and yet, if you are not able to say on your oaths, beyond a reasonable doubt, that he is guilty, it
is your sworn duty to find Glynn Stevens "Not Guilty."

***

For the prosecution to meet its burden of proving Glynn Stevens guilty beyond a reasonable doubt,
the prosecution must prove each and every essential element of the offense charged beyond a
reasonable doubt. If the State has failed to prove any one element of the offense charged beyond a
reasonable doubt, you must find the Defendant, Glynn Stevens, not guilty.

¶63. As in Williams, the jury in the case at bar was told in bold and simple terms that Stevens was not
required to prove his innocence and that the burden was on the State to prove him guilty beyond a
reasonable doubt of the crime charged in the indictment before they could convict. "The trial court is not
required to instruct the jury over and over on a principle of law." Williams, 589 So. 2d at 1280 (citing
Laney v. State, 486 So. 2d 1242, 1246 (Miss. 1986)). The instructions, when read together, fully and
fairly instructed the jury on the presumption of Stevens's innocence and the State's burden of proof.

VIII. THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE A
PHOTOGRAPH OF THE VICTIM.

¶64. Over Stevens's objection, the trial court allowed the prosecution to introduce a high school
photograph of Brown taken before the shooting. Stevens claims that the photograph was inflammatory and
cumulative as he had stipulated, prior to the introduction of the picture, to the identity of the victim. The
record indicates that Stevens stipulated to the identity of the victim after the witness had been shown the
photograph and had identified Brown as the victim, but prior to introduction of the photograph. This Court
rejected this assignment of error when raised by Stevens in his prior appeal. Stevens I, 717 So. 2d at 313
(citing Bullock v. State, 391 So. 2d 601, 609 (Miss. 1980); Bruce v. State, 349 So. 2d 1068, 1071
(Miss. 1977)).
¶65. The admissibility of photographs rests within the sound discretion of trial judge. Jackson v. State,
684 So. 2d 1213, 1230 (Miss.1996); Mackbee v. State, 575 So. 2d 16, 31 (Miss. 1990). The fact that a
photograph of the deceased might arouse the emotions of jurors does not of itself render it incompetent in
evidence so long as introduction of the photograph serves some legitimate, evidentiary purpose. May v.
State, 199 So. 2d 635, 640 (Miss. 1967). This Court has held that a photograph of a victim may be
admitted for purposes of identification. Noe v. State, 616 So. 2d 298, 303 (Miss. 1993); Bullock v.
State, 391 So. 2d 601, 609 (Miss.1980).

¶66. Nevertheless, Stevens asserts that because he stipulated to the victim's identity prior to introduction of
the photograph, its introduction was cumulative and, therefore, of no evidentiary purpose. The photograph
was simply a high school photograph, not gruesome nor likely to inflame the emotions of the jurors. We find
that any error in its admission did not rise the level of reversible error. See Bruce v. State, 349 So. 2d
1068, 1071 (Miss. 1977).

IX. THE TRIAL COURT ERRED IN ADMITTING THE AUTOPSY PHOTOGRAPH OF
BROWN'S HEAD.

¶67. Stevens also argues that the trial court erred in admitting an autopsy photograph of the entry wound to
Brown's head after an autopsy incision had been made. The photograph was introduced during the
testimony of Dr. Rodrigo Galvez, the forensic pathologist who performed Brown's autopsy. As this Court
observed in rejecting this assignment of error in Stevens I, this Court has previously upheld the admission
of similar and even more gruesome autopsy photographs to show the cause of death and/or the path of the
fatal bullet. Stevens I, 717 So. 2d at 313 (citing Davis v. State, 660 So. 2d 1228, 1259 (Miss.1995);
Mack v. State, 650 So. 2d 1289, 1314 (Miss. 1994); Noe v. State, 616 So. 2d 298, 303 (Miss. 1993);
Alexander v. State, 610 So. 2d 320, 338 (Miss. 1992); Porter v. State, 564 So. 2d 31, 35 (Miss.
1990)).

¶68. Stevens again asserts that because he had already stipulated to the cause of death and because other
evidence established the path of the fatal bullet, the autopsy photograph was cumulative and of no
evidentiary value. A review of our case law reveals that "[t]he discretion of the trial judge 'runs toward
almost unlimited admissibility regardless of the gruesomeness, repetitiveness, and the extenuation of
probative value.'" Morris v. State, 777 So. 2d 16, 27 (Miss. 2001) (quoting Hart v. State, 637 So. 2d
1329, 1335 (Miss. 1994)). We have stated that photographs contain probative value when they supplement
or add clarity to witness' testimony. Gossett v. State, 660 So. 2d 1285, 1292 (Miss.1995) (citing Hughes
v. State, 401 So. 2d 1100, 1106 (Miss.1981); Norman v. State, 385 So. 2d 1298, 1303 (Miss.1980)).
Rather than being merely cumulative, the autopsy photograph served to clarify the pathologist's clinical
descriptions of the path of the fatal bullet. See Hart v. State, 637 So. 2d 1329, 1336 (Miss. 1994)
(affirming admission where pathologist utilized like photos during testimony). See also Turner v. State,
573 So. 2d 657, 667 (Miss. 1990); Lanier v. State, 533 So. 2d 473, 484 (Miss.1988) (both finding no
abuse of discretion in admitting photographs used in conjunction with testimony by the physician who
performed the autopsy). The trial court did not abuse its discretion in admitting the photograph.

X. THE TRIAL COURT ERRED IN REFUSING TO ALLOW STEVENS TO QUESTION
WITNESSES CONCERNING STRAHAN'S EXERCISING HIS RIGHT TO REMAIN
SILENT.

¶69. Stevens argues that the trial court erred in prohibiting defense counsel to question Strahan regarding
Strahan's exercising his right to remain silent. Stevens states in his brief to this Court that the testimony he
would have sought from Strahan was that Strahan remained silent after his arrest, and that Strahan chose to
testify only because he was offered a plea bargain in return for his testifying against Stevens.

¶70. This assignment of error is without merit. Defense counsel was permitted to elicit the precise testimony
sought on cross-examination of Strahan:

Q: Now, I want to ask you about--you were charged with the aggravated assault of Patrick Holiday.
Correct?

A: Yes.

Q: And you entered a plea bargain with the District Attorney's office, didn't you?

A: Well--

Q: Would you just answer the question, please?

A: Yes.

Q: And as part of that plea bargain, and again we're talking about the Patrick Holiday case where you
were charged with aggravated assault, part of the agreement was that they would remand that case
against [sic] to the files or not prosecute that case against you if you agreed to testify against Glynn
Stevens. Correct?

A: No.

Q: Tell us, then.

A: They came to me after--I wanted to tell everybody the truth about the matter, what had happened,
and I offered them my statement.

Q: But prior to that you had not given anybody any statement, had you?

A: No.

Q: And isn't it true you agreed with the District Attorney, whoever made the offer--I'm not
asking you that--but you entered an agreement with the District Attorney's office that if you
testified against Glynn that the charge against you as far as the aggravated assault on
Patrick Holiday would not be prosecuted or would be dropped. Correct?

A: That was the plea.

(emphasis added). This assignment of error is moot.

XI. THE TRIAL COURT ERRED IN REFUSING TO STRIKE TESTIMONY
CONCERNING THE BULLET RECOVERED FROM HOLIDAY'S LEG.

¶71. On direct examination, the prosecutor asked Holiday what kind of bullet was recovered from his leg.
Holiday responded, "They said it was a .22." Defense counsel objected on the basis of hearsay. The trial
court sustained the objection, but denied Stevens's request that the answer be stricken from the record. On
appeal, Stevens argues that the trial court's refusal to strike the answer from the record amounts to
reversible error.

¶72. Any error here was harmless in light of the amount of evidence properly before the jury regarding
Stevens's alleged aggravated assault of Holiday. The undisputed testimony of two eyewitnesses to the
incident, Holiday and Strahan, indicated that Stevens fired his gun at Holiday. Furthermore, the record
includes Stevens's guilty plea to the aggravated assault of Holiday in which Stevens stated that he shot
Holiday. Any error here is harmless beyond a reasonable doubt in light of the overwhelming weight of the
evidence against Stevens.

CONCLUSION

¶73. For these reasons, the judgment of the Hinds County Circuit Court is affirmed.

¶74. CONVICTION OF MANSLAUGHTER AND SENTENCE OF 20 YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

PITTMAN, C.J., WALLER, COBB, DIAZ, EASLEY AND CARLSON, JJ., CONCUR.
McRAE, P.J., CONCURS IN RESULT ONLY. GRAVES, J., NOT PARTICIPATING.

1. Felonies enumerated in Miss.Code Ann. § 97-3-19(2)(e) and (f) are: rape, burglary, kidnapping, arson,
robbery sexual battery, unnatural intercourse with any child under the age of 12, nonconsensual unnatural
intercourse with mankind, and abuse and/or battery of a child.