                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2007-CT-00059-SCT

KENIVEL SMITH

v.

STATE OF MISSISSIPPI

                              ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                           10/17/2006
TRIAL JUDGE:                                HON. ALBERT B. SMITH, III
COURT FROM WHICH APPEALED:                  TUNICA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: W. GLENN WATTS
DISTRICT ATTORNEY:                          LAURENCE Y. MELLEN
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                THE JUDGMENT OF THE COURT OF
                                            APPEALS IS REVERSED. THE JUDGMENT
                                            OF THE TUNICA COUNTY CIRCUIT
                                            COURT IS REINSTATED AND AFFIRMED -
                                            11/05/2009.
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       LAMAR, JUSTICE, FOR THE COURT:

¶1.    Kenivel Smith was convicted of aggravated assault and sentenced to serve twenty

years in the custody of the Mississippi Department of Corrections for the shooting of Andre

Davis. At trial, Davis testified to a version of events different from that which he had first

related to law enforcement officials, refusing to identify Smith as the shooter. During direct
examination of Davis, the State introduced Davis’s written and recorded statements made

to law enforcement shortly after the shooting, in which he had identified Smith as the

shooter.   The trial court allowed the statements as substantive evidence pursuant to

Mississippi Rule of Evidence 804(b)(5). On appeal, the Court of Appeals reversed the

circuit court, finding that the introduction of Davis’s statements violated both the

Confrontation Clause of the United States Constitution and the Mississippi Rules of

Evidence. The State filed a petition for writ of certiorari, which we granted.

                      FACTS AND PROCEDURAL HISTORY

¶2.    The following facts are taken from the opinion of the Court of Appeals:

       Shortly before midnight on December 28, 2004, Andre Davis was shot in the
       upper thigh after returning to his home in Tunica, Mississippi. Davis was
       treated at the local hospital that night and discharged to return home at
       approximately 3:00 a.m. the next morning. At approximately 9:00 a.m., Davis
       provided a brief written statement and a detailed audiotaped statement to
       Investigator Harold Harris of the Tunica County Sheriff’s Department. In his
       written and audiotaped statements, Davis adamantly indicated that Smith shot
       him.

       In his audiotaped statement, Davis explained that on the previous day he went
       hunting with several friends. According to Davis, while he was hunting, Smith
       went to Davis’s house and threatened Davis’s wife. Davis went on to state that
       after he returned home, Smith called him and accused him of stealing drugs
       that Smith hid in the area where Davis and his friends had been hunting
       rabbits. Smith told Davis that he wanted to meet to discuss the matter further.
       Davis complied and went to John Henry Wilson’s house. Wilson is Smith’s
       father. Additionally, Wilson’s home is across the street from Davis’s.

       According to Davis’s audiotaped statement, Davis and Smith discussed the
       matter on Wilson’s porch. Davis reaffirmed that he did not know anything
       about any missing drugs. According to Davis, at that moment Smith opened
       the door and fired four shots at him. Davis reported that he ran back to his
       residence, while Smith continued to fire at him. When asked if he had seen the

                                          2
       person who had shot him, Davis responded, “[y]es. I was face to face, like me
       and you are right now.” Authorities recovered nine shell casings in the street
       that were fired from a nine-millimeter pistol.

Smith v. State, 2008 WL 4482521, ¶¶ 3-5 (Miss. Ct. App. Oct. 7, 2008).

¶3.    Smith was indicted and tried for the aggravated assault of Davis by use of a firearm.

At trial, the State presented three witnesses: Deputy Katie Johnson, the first officer to arrive

at the scene; the victim, Andre Davis; and Detective Harold Harris, who conducted the

investigation and took statements from Davis.

¶4.    Davis testified that he had been rabbit hunting on the evening of December 29, and

after he returned home, he heard shots and ran into his house. 1 He testified that the shots

came from across the street. Davis further stated that he was unaware that he had been shot

until his nephew told him that he was bleeding. Davis also testified that he did not see

Kenivel Smith on the day of the shooting. Prosecutors then questioned Davis about a

written statement he had given to law enforcement officers the day after he was shot. Davis

testified that he had given a written statement, but could not recall what he had said in the

statement. The prosecution then produced Davis’s written statement to refresh his memory.

Davis confirmed that the written statement was, in fact, his statement, and that he had told

law enforcement that Smith had shot him “about some drugs.” Davis, however, stated that

his memory of the incident had not been refreshed, even after reviewing the written

statement.


       1
       For a thorough recitation of Davis’s extensive testimony, see the opinion of the Court
of Appeals. Smith v. State, 2008 WL 4482521 (Miss. Ct. App. Oct. 7, 2008).

                                               3
¶5.    Smith’s counsel objected to the introduction of Davis’s prior unsworn statements,

arguing that admission of Davis’s prior statements would violate Smith’s constitutional right

to confront witnesses against him. The trial court overruled the objection and allowed both

Davis’s written statement as well as the audiotaped statement into evidence. The trial court

found Davis to be “unavailable” due to “a lack of memory after reviewing the statement,”

pursuant to Mississippi Rule of Evidence 804(a)(3),2 and allowed the statements into

evidence under Mississippi Rule of Evidence 804(b)(5).3 The trial court also allowed a

transcript of the audiotaped statement to be marked for identification and shown to the jury

while the tape was played.

¶6.    During direct examination, Davis clearly contradicted his previous statements,

testifying that the shots he had heard came from across the street as he stood in his own


       2
         Mississippi Rule of Evidence 804(a)(3) provides that “‘[u]navailability as a witness’
includes situations in which the declarant testifies to a lack of memory of the subject matter
of his statement.” Miss. R. Evid. 804(a)(3).
       3
       Mississippi Rule of Evidence 804(b) allows certain statements into evidence that
otherwise would be excluded by the hearsay rule, if the declarant is unavailable as a witness.
Mississippi Rule of Evidence 804(b)(5) provides:

       (5) Other exceptions. A statement not specifically covered by any of the
       foregoing exceptions but having equivalent circumstantial guarantees of
       trustworthiness, if the court determines that (A) the statement is offered as
       evidence of a material fact; (B) the statement is more probative on the point
       for which it is offered than any other evidence which the proponent can
       procure through reasonable efforts; and (C) the general purposes of these rules
       and the interest of justice will best be served by admission of the statement
       into evidence . . . .

Miss. R. Evid. 804(b)(5).

                                             4
yard. Davis further testified that he did not see the shooter and that he had identified Smith

only because his nephew had told him that Smith was the shooter. During later cross-

examination, Davis testified that his prior statements to law enforcement officers had been

false.

¶7.      Detective Harold Harris testified that he had arrived at the scene of the shooting and

had taken over the investigation. Detective Harris stated that bullet casings were found in

the street in a random pattern, indicating that the shooter was walking and shooting.

Detective Harris further testified that he had met with Davis the next day and had taken a

written and an audiotaped statement from Davis. Detective Harris stated that Davis

identified Smith as the shooter in the statements. During cross-examination of Harris,

Smith’s counsel offered Detective Harris’s report into evidence. The report stated, among

other information, that Detective Harris “went and interviewed the victim (Andre Davis),

and he told me that Kenivel Smith shot him over some DOPE.”

¶8.      Smith was found guilty of aggravated assault and sentenced to serve twenty years in

the custody of the Mississippi Department of Corrections. On appeal, the Court of Appeals

reversed and remanded for a new trial, finding that the circuit court erred when it allowed

the prosecution to admit Davis’s prior inconsistent statements into evidence. Id.

¶9.      The Court of Appeals first found that Davis’s statements were testimonial hearsay,

as contemplated by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d

177 (2004), and as such, the statements were admissible only if Davis was unavailable and

Smith had had a prior opportunity to cross-examine him. Smith, 2008 WL 4482521, at ¶¶

                                               5
52, 68. Further, the Court of Appeals found that, while the statements would have been

admissible for impeachment purposes, it was error to allow the statements as substantive

evidence under Mississippi Rule of Evidence 804(b)(5). The Court of Appeals concluded:

       It is undisputed that Smith did not have an opportunity to cross-examine
       Davis when Davis provided his statements. That Smith had an opportunity
       to cross-examine Davis at trial does not necessarily cure the constitutional
       confrontation problem. While the distinction may appear slight, the “Davis”
       who testified at Smith’s trial was no longer the accusing witness against
       Smith. Smith’s true accusing witness was the “Davis” of December 29, 2004.
       Therefore, Smith was unable to confront his accuser, and the damage had
       already been done . . . .

       Having found that the circuit court erred when it allowed the prosecution to
       submit Davis’s prior statements in violation of Smith’s confrontation rights,
       that Davis’s prior statement was not admissible pursuant to any exception to
       the hearsay rule, and that the error was prejudicial to Smith and not harmless
       error, it is clear that Smith is entitled to a new trial. Under the facts presented
       in the record before us, admittance of Davis’s out-of-court statement was at
       worst a violation of Smith’s constitutional right to confront his accuser and,
       at best, a violation of the Mississippi Rules of Evidence as the statement
       constituted inadmissible hearsay. We are required to reverse the judgment of
       the circuit court and remand this matter for a new trial consistent with this
       opinion.

Id. at ¶¶ 24, 32.

¶10.   From the decision of the Court of Appeals, this Court granted writ of certiorari.

                                STANDARD OF REVIEW

¶11.   This Court employs a de novo standard of review when presented with constitutional

issues. Hayden v. State, 972 So. 2d 525, 536 (Miss. 2007). Our standard of review

regarding admission or exclusion of evidence is abuse of discretion. Brown v. State, 965

So. 2d 1023, 1026 (Miss. 2007).


                                               6
                                        ANALYSIS

¶12.   The question presented is whether the trial court erred in admitting Davis’s prior

unsworn statements into evidence as substantive proof of Smith’s guilt. Answering this

question requires an analysis of the Confrontation Clause of the United States Constitution,

as well as an analysis of several distinct, but applicable, rules of evidence.

I. Is the introduction of Davis’s prior unsworn statement prohibited by Crawford when
Davis testified at trial and was subject to cross-examination?

¶13.   Relying on Crawford v. Washington, the Court of Appeals found that the

introduction of Davis’s statements violated Smith’s Sixth Amendment right to confront his

accuser. The Court of Appeals reasoned that, although Davis testified at trial and was

subject to cross-examination, “the ‘Davis’ who testified at Smith’s trial was no longer the

accusing witness against Smith.” Smith, 2008 WL 4482521, at ¶ 24. The Court of Appeals

instead found that “Smith’s true accusing witness was the ‘Davis’ of December 29, 2004.”

Id. According to the Court of Appeals, Smith must have been provided with an opportunity

to cross-examine Davis at the time the statements were given in order for the statements to

be admissible under Crawford. Because Smith had no such opportunity, the Court of

Appeals found that admission of the statements violated Smith’s constitutional right to

confront his accuser. Smith, 2008 WL 4482521, at ¶ 26. We find this reasoning to be

flawed.

¶14.      In Crawford , the U.S. Supreme Court set forth guidelines for the admission of a

prior testimonial statement of a witness who does not testify at trial. Crawford, 541 U.S.


                                              7
at 68. Pertinent to today’s analysis, Crawford clearly provided that “[w]hen the declarant

appears for cross-examination at trial, the Confrontation Clause places no constraints at all

on the use of his prior testimonial statements.” Crawford, 541 U.S. at 59 (emphasis added).

In other words, the analysis of whether prior testimonial statements must be excluded under

the Crawford rule is necessary only when a witness does not appear for cross-examination

at trial.

¶15.    The Court of Appeals further found that Davis was not subject to cross-examination

at trial because he was deemed unavailable to testify as a witness due to a lack of memory

of the subject matter of his statement. Smith, 2008 WL 4482521, at ¶ 24. The U.S.

Supreme Court has addressed the distinction between unavailability for confrontation

purposes and unavailability for hearsay purposes, holding that whether a witness is deemed

“unavailable to testify due to memory loss” has no bearing on whether that witness should

be regarded as “subject to cross-examination” on the witness stand. U.S. v. Owens, 484

U.S. 554, 562, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988). In Owens, a prison guard was

attacked and beaten, resulting in a fractured skull and severely impaired memory. Id. at

556. At some point after the attack, he was able to identify his attacker to investigators. Id.

However, at trial, he was unable to remember the identity of his assailant. Id. The Supreme

Court found that his statement of identification was properly admitted pursuant to Rule 801

(d)(1)(C) of the Federal Rules of Evidence.4 Id. at 564.


        4
       Federal Rule of Evidence 801(d)(1)(C) is identical to Mississippi Rule of Evidence
801(d)(1)(C), and provides that “A statement is not hearsay if the declarant testifies at the

                                              8
¶16.   The Supreme Court explained that “[o]rdinarily, a witness is regarded as ‘subject to

cross-examination’ when he is placed on the stand, under oath, and responds willingly to

questions.” Id. at 561. The Court continued:

       “[T]he Confrontation Clause guarantees only ‘an opportunity for effective
       cross-examination, not cross-examination that is effective in whatever way,
       and to whatever extent, the defense might wish.” . . . that opportunity is not
       denied when a witness testifies as to his current belief but is unable to
       recollect the reason for that belief. It is sufficient that the defendant has the
       opportunity to bring out such matters as the witness’ bias, his lack of care and
       attentiveness, his poor eyesight, and even . . . the very fact that he has a bad
       memory. If the ability to inquire into these matters suffices to establish the
       constitutionally requisite opportunity for cross-examination when a witness
       testifies as to his current belief, the basis for which he cannot recall, we see
       no reason why it should not suffice when the witness’ past belief is introduced
       and he is unable to recollect the reason for that past belief. . . . The weapons
       available to impugn the witness’ statement when memory loss is asserted will
       of course not always achieve success, but successful cross-examination is not
       the constitutional guarantee.

Id. at 559 (quoting Kentucky v. Stincer, 482 U.S. 730, 739, 107 S. Ct. 2658, 2664, 96 L. Ed.

2d 631 (1987)).

¶17.   The rule set forth by the Supreme Court in Crawford neither conflicts with nor

abrogates its earlier holding in Owens. Crawford considered the admissibility of a prior

statement made by a declarant who was absent from trial, while Owens considered the

admissibility of a prior statement made by a declarant testifying at trial. Crawford, 541 U.S.

at 68; Owens, 484 U.S. at 556.




trial or hearing and is subject to cross-examination concerning the statement, and the
statement is one of identification of a person made after perceiving the person.” Fed. R.
Evid. 801(d)(1)(C).

                                              9
¶18.   In the instant case, Davis’s appearance on the witness stand at trial provided Smith

with the opportunity to confront and cross-examine him, which is all that is required by the

Confrontation Clause and Crawford. Crawford, 541 U.S. at 68. We find that Smith’s Sixth

Amendment right to confront his accuser, therefore, was not violated by the admission of

Davis’s statements, and that the Court of Appeals erred in so finding.

II. Were Davis’s prior inconsistent statements properly admitted as substantive
evidence of Smith’s guilt?

¶19.   The trial court admitted Davis’s prior, unsworn, out-of-court statements to be used

as substantive evidence of Smith’s guilt under Rule 804(b)(5). In fact, Davis’s prior

statements to investigators were the only evidence which identified Smith as Davis’s

assailant. Mississippi Rule of Evidence 804(b)(5) is a broad exception, allowing hearsay

statements where the declarant is found to be unavailable as a witness. The court found

Davis to be unavailable as a witness due to a lack of memory pursuant to Rule 804(a)(3),

which provides that “unavailability as a witness includes situations in which the declarant

testifies to a lack of memory of the subject matter of the statement.” Miss. R. Evid.

804(a)(3) (emphasis added).

¶20.   Davis initially testified that he had given a written statement but could not remember

what he had said in the statement. The State then presented Davis with his written statement

to refresh his memory. Although he initially testified that his memory was not refreshed,

Davis then testified that the statement was, in fact, his, and that he had told the police that

Smith had shot him “about some drugs.” Davis further testified that the statement that


                                              10
Smith had shot him was based solely on information Davis had received from his nephew,

not from what Davis had observed.

¶21.   From a review of the record, it is clear that, while Davis first indicated that he did not

remember what he told investigators, Davis never indicated a lack of memory as to what

happened on the day of the shooting. To the contrary, Davis testified to a different version

of events at trial than that which he had provided in his statements to law enforcement

officials. In his prior statements, Davis unequivocally stated that he had seen Smith shoot

him. At trial, Davis testified that he did not see Smith that day and did not see who shot

him. The State sought to introduce these prior statements, not because Davis had no

memory of the events, but because Davis had changed his story. We conclude that the trial

court erred in finding that Davis was unavailable as a witness due to memory loss, and we

see no reason to further analyze the requirements for admission under Rule 804(b)(5),

including trustworthiness and notice. To allow the introduction of these prior inconsistent

statements of Davis under Rule 804(b)(5) would allow the exception to swallow the rule.

¶22.   Our precedent is clear that, while a prior inconsistent statement of a testifying witness

can be used to impeach the witness’s credibility, it is not admissible as substantive evidence

of the defendant’s guilt. In Magee v. Magee, 320 So. 2d 779 (Miss. 1975), we said that the

introduction of a prior inconsistent statement “does not mean that the out-of-court statement

became evidence on its merits or had any probative value . . . . The rule seems to be

universal that the impeaching testimony does not establish or in any way tend to establish

the truth of the matters contained in the out-of-court contradictory statements.” Id. at 783.

                                              11
Furthermore, this Court has ruled that “evidence of extra judicial statements made by a

witness who is not a party and whose declarations are not binding as admissions is

admissible only to impeach or discredit the witness and is not competent as substantive

evidence of the facts to which such statements relate . . . .” Hall v. State, 165 So. 2d 345,

350 (Miss. 1964) (emphasis added). See also Brown v. State, 556 So. 2d 338 (Miss. 1990)

(finding that a witness’s prior inconsistent statements regarding the defendant’s admission

of guilt were admissible for impeachment purposes only); Moffett, 456 So. 2d 714 (Miss.

1984) (holding that in a capital murder case, the prior, inconsistent, unsworn, out-of-court

statement used to impeach the State’s own witness was not admissible as substantive

evidence); Davis v. State, 431 So. 2d 468 (Miss. 1983) (holding that evidence of

extrajudicial statements by a nonparty witness was admissible only for impeachment

purposes); Sims v. State, 313 So. 2d 388 (Miss. 1975) (finding that a recanting witness’s

statement that a defendant made incriminating statements was admissible only for

impeachment purposes). While Davis’s prior inconsistent statements would have been

admissible for impeachment purposes, we find that it was error to admit them as substantive

evidence under Rule 804(b)(5).

¶23.   The next question is whether the statements were otherwise admissible under our

rules of evidence.

¶24.   In 1977, before adopting our rules of evidence, this Court held that when the

principal witness’s identification testimony is impeached, “independent evidence of the

identification may be introduced through third persons present at the out-of-court

                                             12
identification.” Fells v. State, 345 So. 2d 618, 622 (Miss. 1977). This Court allowed the

evidence for substantive purposes “because such evidence not only has greater probative

force and thus preserves the better evidence, but also because the witness testifying is in

court and is subject to cross-examination.” Id. This Court has more recently noted that,

regardless of whether the witness has been impeached, the Mississippi Rules of Evidence,

adopted in 1986, “provide that such identification evidence is not hearsay and is admissible

as substantive material.” Livingston v. State, 519 So. 2d 1218, 1221 (Miss. 1988). Indeed,

Mississippi Rule of Evidence 801(d)(1)(C) provides that a statement is not hearsay if “[t]he

declarant testifies at the trial or hearing and is subject to cross-examination concerning the

statement, and the statement is one of identification of a person made after perceiving the

person.” Miss. R. Evid. 801(d)(1)(C). Our comment to the rule further explains its

applicability and scope:

       Rule 801(d)(1)(C), which declares that prior statements of identification made
       by a witness are not hearsay, is not a departure from pre-rule practice. The
       Court in Fells v. State, 345 So. 2d 618 (Miss. 1977), departed from the
       traditional view that such statements were hearsay by adopting what was then
       the minority view that statements of identification could be admitted as
       substantive evidence of that identification. The scope of the rule is broader
       than the Fells holding in that: (1) there is no need for a prior attempt to
       impeach the witness for the identifying statement to be admissible; (2) the
       testimony about the prior statement may be from the witness who made it or
       another person who heard it; (3) the witness who made the statement need not
       make an in-court identification; and (4) the statement may have been made
       either in or apart from an investigative procedure . . . .

Miss. R. Evid. 801(d)(1)(C).




                                             13
¶25.   Davis testified at Smith’s trial and was exhaustively subjected to cross-examination

concerning the statements, as discussed supra. In his statements given during police

investigation, Davis unequivocally identified Smith as the shooter.            Davis gave his

statements on December 29, 2004, the day after Davis perceived the man who had shot him.

We find that these statements identifying the assailant would have been admissible as

statements of identification pursuant to Mississippi Rule of Evidence 801(d)(1)(C). We

recognize that the admitted statements contain more than a mere identification of the

shooter, including statements regarding drugs as a possible motive for the shooting and

threats made to Davis’s girlfriend.5 These portions of the statements should not have been

admitted under Rule 801(d)(1)(C), as they were not statements of identification. However,

“[t]he mere fact that the trial court committed error in an evidentiary ruling does not by itself

warrant a reversal by this Court. Peterson v. State, 671 So. 2d 647, 656 (Miss. 1996). “The

trial court’s error must have affected a substantial right of the defendant.” Id. In making

such a determination, we review “the evidence presented in the record as a whole.” Id.

¶26.   After reviewing the trial testimony and comparing it to the audiotaped and written

statements introduced into evidence, we find that the bulk of the information contained in

the statements was cumulative to Davis’s testimony. Further, before introduction of the



       5
         Davis’s written statement was that “Mr. Smith shot me last night about some drugs
I supposed had found.” In his audiotaped statement, Davis stated that Smith told him that
Smith had hidden some drugs in the area Davis had been hunting and believed Davis to be
the thief. Davis further detailed how, earlier that day, Smith had confronted Davis’s
girlfriend about the missing drugs.

                                               14
statements into evidence, Davis testified without objection that he told police investigators

“Mr. Smith shot me up last night about some drugs.” We also note that Detective Harris,

who recorded Smith’s statements, testified without objection that Davis had identified Smith

as the shooter. In addition, Detective Harris’s report, admitted into evidence as defense

exhibit D-1, stated that Davis “told me that Kenivel Smith shot him over some DOPE.”

Upon consideration of “the record as a whole,” we find that the admission into evidence of

those portions of Davis’s statements that contained information other than identification of

the shooter was harmless and does not warrant reversal of the trial court.

¶27.   The only contested issue in this case was the identity of the shooter. We already have

found that the statements made by Davis to law enforcement officers on December 27

identifying Smith as the shooter were properly admitted under Rule 801(d)(1)(C). Such

statements are not deemed to be hearsay and are admissible for substantive purposes.

Therefore, we find that the record contained sufficient evidence to support the jury’s verdict.

                                      CONCLUSION

¶28.   Although Davis’s statements were not admissible for substantive purposes under

Mississippi Rule of Evidence 804(b)(5) or as prior inconsistent statements, we find that they

were admissible as statements of identification under Mississippi Rule of Evidence

801(d)(1)(C). “On appeal, we will affirm a decision of the circuit court where the right

result is reached even though we may disagree with the reason for that result.” Puckett v.

Stuckey, 633 So. 2d 978, 980 (Miss. 1993) (citing Stewart v. Walls, 534 So. 2d 1033, 1035

(Miss. 1988)). Ultimately, we conclude, as did the dissent in the Court of Appeals, that

                                              15
while “Smith did not receive a perfect trial,” he did in fact receive a “fair trial.” The

judgment of the Court of Appeals is reversed, and the judgment of the Circuit Court of

Tunica County is reinstated and affirmed, for the reasons set forth in this opinion.

¶29. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE
JUDGMENT OF THE TUNICA COUNTY CIRCUIT COURT IS REINSTATED
AND AFFIRMED.    CONVICTION OF AGGRAVATED ASSAULT AND
SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED. THE SENTENCE IMPOSED
IN THIS CAUSE SHALL BE SERVED CONSECUTIVELY WITH THE
SENTENCES IMPOSED IN TUNICA CIRCUIT CAUSE NUMBERS 2005-0018 AND
2005-0019.

    WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, KITCHENS,
CHANDLER AND PIERCE, JJ., CONCUR. GRAVES, P.J., DISSENTS WITHOUT
SEPARATE WRITTEN OPINION.




                                            16
