                         IN THE SUPREME COURT OF MISSISSIPPI

                                      NO. 2001-KA-00640-SCT

ALVIN JONES

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                                    2/22/2001
TRIAL JUDGE:                                         HON. KENNETH L. THOMAS
COURT FROM WHICH APPEALED:                           COAHOMA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                              DARNELL FELTON
ATTORNEY FOR APPELLEE:                               OFFICE OF THE ATTORNEY GENERAL
                                                     BY: W. GLENN WATTS
DISTRICT ATTORNEY:                                   LAURENCE Y. MELLEN
NATURE OF THE CASE:                                  CRIMINAL - FELONY
DISPOSITION:                                         AFFIRMED - 08/14/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

        EN BANC.

        McRAE, PRESIDING JUSTICE, FOR THE COURT:

¶1.     Alvin Jones (Jones) was indicted for murder under Miss. Code Ann. § 97-3-19(1)(a) (Rev.

2000) for the killing of Tracy Marshall and two counts of aggravated assault with a deadly weapon under

Miss. Code. Ann. § 97-3-7(2) (Rev. 2000) for gunshot injuries to Glenn and Curtis Marshall. A jury trial

was held before the Honorable Kenneth L. Thomas of the Coahoma County Circuit Court. Jones was

convicted of the lesser-included charge of manslaughter and sentenced to 17 years in the custody of the

Mississippi Department of Corrections. Jones appeals asserting that (1) Miss. Code Ann. § 99-7-37 (Rev.

2000) violates his constitutional right to the nature and notice of the charge because it does not require the

indictment to specify the manner or means of the murder charged; (2) the circuit court committed
cumulative reversible error in its evidentiary rulings; and (3) the manslaughter verdict was not supported

by sufficient evidence and was against the overwhelming weight of the evidence. We affirm.

                                                 FACTS

¶2.     Jones was indicted for murder and two counts of aggravated assault following a shooting incident

at a night club on the evening of June 5, 2000. The shooting resulted in the death of Tracy Marshall (Tracy)

and injuries to Tracy’s brothers, Glenn and Curtis Marshall (Glenn and Curtis). A physical fight outside

of the club that night between Jones’s sister, Trina Jones (Trina),1 and Curtis precipitated the manslaughter

now the subject of this appeal. The record indicates that numerous witnesses including Tracy and Glenn

gathered outside to watch the couple fight. Many of them later provided statements to Investigator William

Baker that night and testified at the trial.

¶3.     Jones and his mother, also Trina’s mother, were also out that night and decided to go by the club.

They arrived during the fight. Jones had a gun in his car and after much mayhem was seen firing two or

three shots into the air in response to seeing his sister and Curtis fighting. The record reveals that when

Jones fired the shots into the air, Tracy, Curtis and Glenn “swarmed” him. Witnesses confirmed that Tracy

attacked Jones, immediately after which Jones shot him. These witnesses also indicated that Jones was

actually free from Tracy’s grasp before Jones shot him. Witnesses also claimed that Jones fired several

successive shots which ultimately led to the gunshot injuries to Glenn and Curtis. Glenn was shot in the hip,

Curtis in the arm. They were treated for their injuries and survived. Tracy died from a single gunshot

wound to the chest.




        1
         Jones, the State, and witnesses refer to “Trina” as either “Catrina” or “Natrina” or “Trina”.
To avoid confusion, we reference to her as “Trina,” apparently a nickname.

                                                     2
¶4.      At the conclusion of trial, the jury was instructed on murder, manslaughter and self-defense. The

jury convicted Jones of manslaughter. Jones moved for judgment notwithstanding the verdict (JNOV) or

for a new trial arguing that (1) the court erred in refusing to quash the murder count of the indictment

because it failed to specify the means or manner in which Jones allegedly caused the death of Tracy

Marshall and as such violated Jones’s Sixth and Fourteenth Amendment rights; (2) there was no credible

substantial evidence in support of the jury’s manslaughter verdict; and (3) the verdict was against the

overwhelming weight of the evidence. The motion was denied, and Jones appeals.

                                        LAW AND ANALYSIS

        I.      Does Miss. Code Ann. § 99-7-37 violate a murder defendant’s
                constitutional notice rights by not requiring the murder
                indictment to contain specific overt acts indicating the manner in
                which and/or means by which the alleged murder occurred?


¶5.     Murder and Manslaughter.

        Section 99-7-37 reads as follows:

                  In an indictment for homicide it shall not be necessary to set forth the
        manner in which or the means by which the death of the deceased was
        caused, but it shall be sufficient to charge in an indictment for murder, that the defendant
        did feloniously, wilfully, and of his malice aforethought, kill and murder the deceased. And
        it shall be sufficient in an indictment for manslaughter, to charge that the defendant did
        feloniously kill and slay the deceased, concluding in all cases as required by the constitution
        of this state.

Miss. Code. Ann. § 99-7-37 (Rev. 2000). Accordingly, the murder count of the present indictment

charged Jones as follows:

        Alvin Jones. . . of Coahoma County, Mississippi, on or about June 5, 2000, in the
        County and State aforesaid, and within the jurisdiction of this court did unlawfully,
        willfully and feloniously, without the authority of law, and with deliberate design to
        effect death, did kill and murder a human being, to wit: Tracy Marshall, contrary to



                                                  3
            the form of the statute in such cases made and provided and against the peace and
            dignity of the State of Mississippi. . . .

This count tracked the language of the murder statute, and, pursuant to Section 99-7-37 recited above did

not allege the specific means by which or the specific manner in which Tracy’s death occurred, for example

“by shooting with a pistol.”

¶6.         Jones moved to quash the indictment arguing Section 99-7-37 violated his constitutional rights to

notice of the charge against him because it does not require the inclusion of a specific/overt act by which

the murder was allegedly committed. In other words, Section 99-7-37 authorizes a murder indictment to

allege an unlawful killing, but not how it happened, therefore disabling fair preparation of the defense of the

charge. A full hearing was conducted on the motion, during which the trial court allowed the State to

amend the indictment to allege “by shooting with a pistol.” Following amendment, the motion was denied.

¶7.         Jones argues on appeal specifically that his notice of the means or manner of murder is a

fundamental right, that the right for the grand jury to approve of the facts supporting the charge alleged in

the indictment and the right of the Court to examine the face of the indictment for its sufficiency are

unconstitutionally impinged by Section 99-7-37. Jones also argues that the complete exclusion of the

manner or means of murder from the indictment is not narrowly tailored to satisfy a compelling state

interest.

¶8.         Jones also argues that Section 99-7-37 is inconsistent with the prosecutor’s duty to disprove self-

defense beyond a reasonable doubt. Furthermore, it leaves unanswered “whether the prosecution presented

sufficient facts to the grand jury in support of the elements of the charge, and the prosecution’s obligation

to negate self defense.” Additionally, the face of the indictment prevents the circuit court from making the

“facial determination from the indictment about the elements, about the negation of the accused’s self


                                                        4
defense, and about the grand jury’s factual determination in support of the elements and in support of the

negation of the accused’s self defense.”

¶9.     We hold that these arguments are without merit. Specifically, under Mississippi law, we hold that

the defense is not entitled to notice of specific overt acts charged to have caused a murder. Accordingly,

the statute does not violate Jones’s constitutional notice rights. Moreover, the record makes clear that

Jones was not in any way prejudiced by the indictment in the preparation of his defense.

¶10.    The Sixth Amendment to the United States Constitution guarantees defendants in criminal cases

the right to notice of the nature and cause of an accusation against them. U.S. Const. amend VI. This

guarantee is made applicable to the states by incorporation into the due process clause of the Fourteenth

Amendment. In re Oliver, 333 U.S. 257, 275, 68 S.Ct. 499, 508, 92 L.Ed. 682 (1948). Article 3,

Section 26 of the Mississippi Constitution affords the accused the right to notice of the nature and cause

of the accusation. Miss. Const. art. 3, §26.

¶11.    Since Article 3, Section 26 of the Mississippi Constitution is consistent with the mandates of the

Sixth Amendment of the United States Constitution, we will address the issue under Mississippi law.

Article 3, Section 26 reads as follows:

        In all criminal prosecutions the accused shall have a right to be heard by himself or
        counsel, or both, to demand the nature and cause of the accusation, to be
        confronted by the witnesses against him, to have compulsory process for obtaining
        witnesses in his favor, and, in all prosecutions by indictment or information, a
        speedy and public trial by an impartial jury of the county where the offense was
        committed....

Miss Const. art. 3, § 26. As such, it is well-settled in this state that "[t]he right of the accused to be

informed of the nature and cause of the accusation against him is essential to the preparation of his defense."

Peterson v. State, 671 So.2d 647, 655 (Miss. 1996). This Court has repeatedly made it "clear that the



                                                      5
ultimate test, when considering the validity of an indictment on appeal, is whether the defendant was

prejudiced in the preparation of his defense." Medina v. State, 688 So.2d 727, 730 (Miss.1996). See

also Gray v. State, 728 So.2d 36 (Miss. 1998); Allman v. State, 571 So.2d 244 (Miss. 1990).

¶12.    Generally, whether an indictment in the language of the statute is sufficient,2 or whether other words

or acts are necessary to properly charge the commission of a crime is dependent upon the nature of the

offense and the terms in which it is described by the statute. If the statute fully and clearly defines the

offense, the language of the statute is sufficient to provide notice of the crime charged. Johnson v. State,

475 So.2d 1136, 1139 (Miss. 1985) (citing Jackson v. State, 420 So.2d 1045, 1046 (Miss. 1982)

(following numerous cases cited therein)).

¶13.    We have repeatedly held that the manner or means employed in the commission of a crime need

not be averred.State v. Labella, 232 So.2d 354, 356 (Miss. 1970) (citing 42 C.J.S. Indictments and

Informations § 131, p. 1023 (1944) (neither do matters of evidence need averment, nor those of defense

negation (citing 42 C.J.S. Indictments and Informations 15, 116, p. 996 (1944))); Sessum v.

State, 221 So.2d 368, 370 (Miss. 1969) (Indictment did not have to set forth manner in which or means

by which death of deceased was caused; it was sufficient to charge murder in the proper terms, whether

it was a premeditated killing or a homicide resulting from the commission of a crime of violence; the state's

instructions could properly set forth both theories of murder); Talbert v. State, 172 Miss. 243, 159 So.



        2
          The sufficiency of an indictment is determined by Uniform Rules of Circuit and County Court
Practice 7.06. Rule 7.06 enumerates several items that must be included in an indictment, and requires
that the indictment state the essential facts constituting the offense charged and fully notify the defendant
of the nature and cause of the accusation. URCCC 7.06; Peterson v. State, 671 So.2d 647, 654-55
(Miss. 1996). The present indictment satisfies all of the URCCC requirements. Thus, no Rule 7.06
issue was raised.

                                                      6
549, 551 (1935) (indictment in language of murder statute need not set forth manner and details of

homicide; manner or means statute was intended to relieve the pleader of the necessity of setting forth in

an indictment the manner and details of a homicide); Williams v. State, 161 Miss. 406, 137 So. 106

(1931) (manslaughter indictment charging culpable negligence held not defective due to not having set forth

conduct constituting culpable negligence).

¶14.    Additionally, we find Mackbee v. State, 575 So.2d 16 (Miss. 1990), instructive. One issue

in Mackbee was whether the capital murder indictment, which did not allege an overt act/element

constituting the underlying crime of attempted robbery or robbery, gave the defendant sufficient notice of

the nature and the cause of the charges against him. Id. at 34. The indictment alleged that the murder was

committed while Mackbee was "engaged in the commission of the crime of robbery...contrary to and in

violation of § 97-3-19(2)(e) of the Mississippi Code of 1972," which is the statutory provision for capital

murder. Thus, the indictment complied with the capital murder statute. 575 So.2d 2d at 34 (citing Bullock

v. State, 391 So.2d 601, 606 (Miss. 1980); Bell v. State, 360 So.2d 1206, 1208-09 (Miss.1978)).




¶15.     Nonetheless, Mackbee argued that the indictment was void for failure to specify overt facts

committed during the course of the robbery. This Court held that even though the indictment did not

expressly specify overt acts committed during the robbery, the indictment adequately informed the

defendant of the underlying robbery by setting forth the applicable section and subsection defining robbery.

Id. See also Gray v. State, 728 So.2d at 70 (Defendant failed to demonstrate prejudice by the

indictment’s exclusion of the elements of the underlying felony which elevated the murder charge to capital




                                                     7
murder; it is not necessary to specifically set forth the elements of the underlying felony used to elevate the

crime to capital murder).

¶16.    Likewise, in Sessum v. State, this Court held that it is sufficient to charge murder in the language

of the murder statute, whether it was a premeditated killing or a homicide resulting from the commission

of the crime of arson. 221 So.2d at 270. The Sessum Court reasoned that “the State's instructions

could properly set forth both theories of murder, which reaffirmed our holding in Carrol v. State, 183

Miss. 1, 183 So. 703 (1938), that such was justified because any facts which evidence murder or

manslaughter may be introduced at trial. See, e.g., Neighbors v. State, 361 So.2d 345 (Miss.1978).

Indeed, in Carrol v. State, we held that the predecessor to Section 99-7-37 covers all homicides, both

statutory and at common law, and under an indictment drawn in accordance with the statute, any facts that

evidence murder or manslaughter may be introduced during the trial to prove the State’s case.

¶17.    It is enough, therefore, that the accused be notified that the charge is for an unlawful killing of a

particular person at a particular time or on a particular date, unless the offense cannot be charged

adequately without the inclusion of a specific manner or means of death. The present indictment sufficiently

notified Jones of that charge for which he needed to prepare his defense, the unlawful killing of Tracy

Marshall on the night of June 5, 2000, at the nightclub.

¶18.    Ultimately, at the hearing on the motion to quash in the present case the judge ruled the indictment

amendable as to the means of death, finding that the issue was one of form and not substance.

Accordingly, the State amended the indictment to reflect that the means of death was “by shooting with

a pistol.”




                                                      8
¶19.    "The test of whether an accused is prejudiced by the amendment of an indictment or information

has been said to be whether . . .a defense under the indictment or information as it originally stood would

be equally available after the amendment is made and whether or not any evidence [the] accused might

have would be equally applicable to the indictment or information in the one form as in the other; if the

answer is in the affirmative, the amendment is one of form and not of substance." Medina v. State, 688

So.2d at 730. Jones does not demonstrate such prejudice or harm on appeal. Instead, he argues that the

exclusion of the manner in which or means by which the murder is caused in the indictment is

unconstitutional. We disagree and hold that Section 99-7-37 does not violate a murder defendant’s

constitutional notice rights by permitting the exclusion from the indictment of the manner and/or means

employed in the perpetration of the offense of murder. Thus, the trial court did not err in overruling the

motion to quash the indictment on these grounds.


        II.     Did the trial court err in excluding Glenn Marshall’s purported
                prior inconsistent statement?


¶20.    During the early morning hours of June 6, 2000, State's witness Glenn Marshall (Glenn), who had

been shot in the hip, was treated by Dr. William M. Barr. Dr. Barr’s medical record reported that Glenn

stated his brother Tracy Marshall (Tracy) had gone on a “rampage.” When Glenn took the stand to testify,

defense counsel inquired about Glenn having told Dr. Barr about the “rampage.” Glenn repeatedly denied

making the statement. Defense counsel sought to introduce the medical record and have Glenn read from

it. The State objected on the basis of hearsay, untrustworthiness, and lack of proper predicate for the entry

of a medical record/prior inconsistent statement. The judge denied the record’s admission.
¶21.    Jones argues that the trial court erred by not admitting this as a prior inconsistent statement or

under the medical records exception the rule against hearsay. Specifically, he argues that the refusal of the


                                                     9
court to allow the statement hindered his ability to impeach Glenn’s credibility, which would have assisted

Jones’s self-defense claim. “All the impeachment required was for the defense to hand Dr. Barr’s report

to Glenn and ask Glenn to either deny or admit whether the report correctly reflected his statement to Dr.

Barr.” Upon examination of the record we conclude that the judge could have allowed the record for

impeachment purposes rather than as substantive evidence.

¶22.    Jones argues that the medical report prepared by Dr. Barr qualifies as a hearsay exception under

Mississippi Rules of Evidence 803(4) regarding "Statements for Purposes of Medical Diagnosis or

Treatment;" therefore under Rule 806, Glenn's statements can be used to attack his credibility as they are

prior inconsistent statements. As will be explained, this argument must fail.

¶23.    Without question, under Rule 801, defining hearsay, the statements made by Glenn to Dr. Barr and

noted in the medical records are hearsay statements which require an exception. Rule 803(4) provides a

hearsay exception for "Statements for Purpose of Medical Diagnosis or Treatment." Rule 803(4)

specifically provides that:

        Statements made for purposes of medical diagnosis or treatment and
        describing medical history, or past or present symptoms, pain, or
        sensations, or the inception or general character of the cause or external
        source thereof insofar as reasonably pertinent to diagnosis or treatment,
        regardless of to whom the statements are made, or when the statements are made, if the
        court, in its discretion, affirmatively finds that the proffered statements were made under
        circumstances substantially indicating their trustworthiness. For purposes of this rule, the
        term "medical" refers to emotional and mental health as well as physical health. . .
M.R.E. 803(4) (emphasis added). The comment to Rule 803(4) provides, in relevant part, that:

        Rule 803(4) represents a deviation from previous Mississippi practice in three significant
        ways. First, Rule 803(4) permits statements of past symptoms as well as present
        symptoms. Second, the rule allows for statements which relate to the
        source or cause of the medical problem whereas Mississippi courts
        formerly disallowed such statements. See Field v. State, 57 Miss. 474 (1879)
        and Mississippi Cent. R.R.Co. v. Turnage, 95 Miss. 854, 49 So. 840 (1909), for

                                                    10
        pre-rule Mississippi law. While statements about cause are permissible,
        statements concerning fault are still excluded.

M.R.E. 803 cmt. (emphasis added). As is clearly stated in the Comment, "statements made about cause

are permissible, [however] statements concerning fault are still excluded." M.R.E. 803 cmt.

(emphasis added). The statement made by Glenn to Dr. Barr regarding Tracy's "rampage" concerns fault

and is not a statement for the purposes of "medical diagnosis or treatment." As such, these statements were

correctly excluded as hearsay.

¶24.    Furthermore, even if we were to assume that Dr. Barr's medical report qualified under Rule 803(4)

as a hearsay exception, Rule 803(4) still provides the trial judge with considerable discretion in its

admissibility. The relevant part of Rule 803(4) provides that "regardless of to whom the statements are

made, or when the statements are made, if the court, in its discretion, affirmatively finds that the proffered

statements were made under circumstances substantially indicating their untrustworthiness," then the trial

judge may still exclude the statements. M.R.E. 803(4). The Comment to Rule 803 notes that " the rule,

by requiring the judge to find trustworthiness, gives the trial judge greater discretion," in determining the

admissibility of statements made during medical treatment. M.R.E. 803 cmt.

¶25.    Lastly, under Rule 806 concerning the admissibility of a hearsay statement as a prior inconsistent

statement for the purposes of attacking a witnesses credibility, does not qualify the medical report

containing Glenn's statements as admissible. Under Rule 805 not only must Dr. Barr's report containing

Glenn's statement meet a hearsay exception; but also Glenn's statement therein must also meet a hearsay

exception. As already discussed above, Dr. Barr's medical report does not meet the hearsay exception

provided in Rule 803(4) or any other hearsay exception contained in the Rules of Evidence. As such,




                                                     11
without even getting to whether Glenn's statement qualifies within a hearsay exception; we can dispose of

Jones's argument on this issue since Dr. Barr's report does not qualify under a hearsay exception.

¶26.    For the above reasons, we affirm the trial court on this issue.


        III.     Did the trial court err during the testimony of the State’s
                 witnesses, Investigator William Baker and eyewitness Dennis
                 Foster?


¶27.    Jones argues that the trial court erred in allowing Investigator William Baker (Baker) to testify

about his conclusions from interviewing eyewitnesses. He also argues that the trial court erred in allowing

the prosecution to discredit Dennis Foster’s (Foster) testimony regarding his pre-trial statement, asserting

that this interfered with his defense since Foster testified that he felt Jones was in danger when he fired his

gun at Tracy. The record reveals that defense counsel failed to raise proper objections during the testimony

of both Dennis Foster and Investigator Baker. Nor were these issues raised in the motion for a JNOV or

a new trial. Therefore, these arguments are waived.

¶28.    Absent a contemporaneous objection at the trial level as to a particular issue, that issue is waived

on appeal. Smith v. State, 724 So.2d 280 (Miss.1998); Whigham v. State, 611 So.2d 988, 995

(Miss. 1992). Indeed, “[i]t is, of course, incumbent upon counsel at trial to make a contemporary objection

. . . , and also in his motion for a new trial, failing in which the error is waived.” Id. See also Dennis v.

State, 555 So. 2d 679 (Miss. 1989); Dunaway v. State, 551 So. 2d 162,164 (Miss. 1989).

¶29.    The trial court sustained an objection to allowing Baker’s testimony about what the witnesses told

him they saw during the shooting. No objection was raised about Baker’s conclusions regarding Jones’s

assertion of self-defense as reflected by the witness statements taken by Baker. Likewise, there was no



                                                      12
objection to the State’s questioning of Foster regarding his inability to say in his pre-trial statement that

which he said during his trial testimony.

¶30. The record reveals that Baker testified to asking witnesses about what they saw occur on the night

of the shooting. He wrote down their individual statements, read them back to them, and allowed them to

make any corrections before they signed them. Baker testified that the witnesses confirmed their

statements. Baker summarized the statements at trial, stating that none of the witnesses saw anyone else

armed, including Tracy Marshall:

        Q.      Did anybody tell you any facts that were included in their
                statements that led you to the conclusion or the possibility of self-
                defense? Did anybody mention any weapon?
        A.      No sir.
        Q.      Did anybody mention that Alvin Jones appeared to them to be
                threatened in any violent sort of way?
        A.      No sir.
        Q.      Did anybody mention that there was an any excessive violence being committed
                toward Alvin?
        A.      No, sir. There was an argument that had ensued, but that was it.
        Q.      And these, you talked to all these witnesses within ten days of the incident itself?
        A.      Yes, sir.
(emphasis added).
¶31.    As discussed, counsel for Jones did not object to Baker’s testimony about his conclusions. Nor

was this issue raised in Jones’s motion for JNOV or a new trial. Therefore, the judge was not allowed an

opportunity to rule; and therefore, the argument is waived on appeal.

¶32.    The record also shows that the objection raised during the testimony of Dennis Foster was on the

ground of a discovery violation. There was no objection to the State’s questioning of Foster regarding his


                                                     13
failure to mention in his pre-trial statements that he thought Jones was in any danger when he fired the shot

that killed Tracy Marshall. The argument regarding Foster’s testimony is likewise waived.


        IV.     Was the manslaughter verdict supported by insufficient evidence or
                against the overwhelming weight of the evidence?


¶33. Jones argues on appeal that there was insufficient evidence to support the manslaughter verdict or

that the verdict was against the overwhelming weight of the evidence. These arguments are without merit.

                a.       Sufficiency of the Evidence

¶34.    Under a sufficiency of the evidence review, “our authority to interfere with the jury's

verdict is quite limited." Benson v. State, 551 So.2d 188, 193 (Miss. 1989). "[I]f there is in the record

substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden

of proof standard, reasonable and fairminded jurors in the exercise of impartial judgment might have

reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb." Id.

Factual disputes are not sufficient to mandate a new trial, but rather, are properly resolved by the jury. Id.

The prosecution must be given the benefit of all favorable inferences that can reasonably be drawn from

the evidence. Id.

¶35.    Specifically, when a defendant attacks the sufficiency of the evidence, he is alleging that there is no

competent evidence introduced on one or more of the elements of the crime charged. “In determining

whether that is true, a court is to consider all credible evidence in the light most favorable to the verdict,

also making such appropriate evidentiary inferences as are consistent with the verdict” Drake v. State,

800 So.2d 508, 516 (Miss. 2001). "We may reverse only where, with respect to one or more of the



                                                     14
elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors

could only find the accused not guilty." Id.

¶36. In the present case, Jones was charged with murder pursuant to the language of Section 97-3-

19(1). At trial numerous eyewitnesses testified, and the jury was instructed as follows on the elements:

        The defendant, Alvin Jones, has been charged in a three count indictment with the crime
        of murder two [sic] counts of aggravated assault. Under Count I of the indictment, if you
        believe from the evidence in this case beyond a reasonable doubt that: Number 1, on or
        about June 5th, 2000, Tracy Marshall was a living person; and Number 2, that Alvin Jones
        did willfully, feloniously and without authority of law, not in necessary self defense or
        defense of another, and of his deliberate design to affect death did kill and murder Tracy
        Marshall, then you shall find the defendant guilty of murder in Count I. If the state has
        failed to prove any one or more of the above listed elements, then you shall find the
        defendant not guilty in Count I”. . . .The Court instructs the jury that to make the murder
        or manslaughter justifiable on the grounds of self defense, the danger of Alvin Jones must
        have been either actual, present and urgent from Tracy Marshall. . . .If you fail to find the
        defendant, Alvin Jones, guilty of the felony crime of murder, then you should continue with
        your deliberations to consider the elements of the felony crime of manslaughter. If you find
        fro the credible evidence in this case beyond a reasonable doubt that the deceased Tracy
        Marshall was a living person and that the defendant, Alvin Jones, did kill Tracy Marshall
        without deliberate design and in the heat of passion, but in a cruel or unusual manner or by
        the use of a dangerous weapon, not in necessary self defense, and without authority of law,
        then you shall find the defendant, Alvin Jones, guilty of manslaughter.
Upon these instructions, the jury found Jones guilty of manslaughter. The record makes clear that this

verdict is supported by an abundance of substantial, credible evidence and should therefore be affirmed.

Indeed, the evidence provided sufficient credible, corroborated eyewitness testimony that Jones had not

acted in necessary self-defense when he killed Tracy Marshall, since Tracy had retreated. The jury found

rather that Jones acted in the heat of passion.

¶37. Jones arrived at the scene of the nightclub with a gun. He admitted to bringing the gun to the scene

although he did not admit in his pre-trial statement to being the gunman. The evidence at trial indicated

that the casings on the ground were from the same gun, and from .380 caliber projectiles, that Tracy died


                                                    15
from a gunshot wound to the chest, and that the gunshot wound was created by the same gun that left the

casings. No eyewitness to the killing saw any other person with a gun. No witness saw Tracy Marshall

with a gun or any other weapon, nor was any weapon found near him. Three witnesses specifically

testified that they saw Jones shoot Tracy. While testimony indicated that Tracy assailed Jones, there was

corroborated testimony that Jones was not being held, threatened or being harmed in any way when Tracy

was shot. Jones was no longer under attack. In other words, the evidence at trial supports the conclusion

that Jones did not have to shoot to protect himself.

                 b.      Weight of the evidence

¶38.    In determining whether a jury verdict is against the weight of the evidence, this Court accepts as

true the evidence which supports the verdict and will reverse only when convinced that the trial court

abused its discretion in failing to grant a new trial. Nicolaou v. State, 612 So.2d 1080, 1083 (Miss.

1992). Any factual disputes are properly resolved by the jury and do not mandate a new trial. Smiley

v. State , 815 So.2d 1140, 1145 (Miss. 2002); Bailey v. State, 729 So.2d 1255, 1263 (Miss. 1999).



¶39.    We have reviewed the evidence of record and do not find evidence contrary to the verdict.

Indeed, viewing as true the evidence which supports the jury's verdict, it cannot be said that the verdict

was so contrary to the overwhelming weight of the evidence that allowing it to stand would result in "an

unconscionable injustice." Wetz v. State, 503 So.2d 803, 812 (Miss. 1987).

                                            CONCLUSION
¶40.    Mississippi authority establishes that Section 99-7-37 of the Mississippi Code does not violate

a defendant’s constitutional rights to notice. The trial judge did not err in its evidentiary rulings regarding



                                                       16
Glenn Marshall’s testimony. The defense did not preserve error for appeal regarding the evidentiary

rulings pertinent to Investigator Baker’s and eyewitness Dennis Foster’s testimonies; thus, these issues

are waived. And finally, the verdict was supported by sufficient, substantial, and credible evidence, and

was not against the overwhelming weight of the evidence. Ultimately, there is no reversible error on

appeal. Therefore, the trial court's judgment is affirmed.


¶41. CONVICTION OF MANSLAUGHTER AND SENTENCE OF SEVENTEEN (17)
YEARS IN AN INSTITUTION UNDER THE SUPERVISION AND CONTROL OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THE SENTENCE
IMPOSED IN THIS CAUSE SHALL RUN CONSECUTIVELY WITH ANY AND ALL
SENTENCES PREVIOUSLY IMPOSED.
     PITTMAN, C.J., SMITH, P.J., WALLER, EASLEY AND GRAVES, JJ., CONCUR.
COBB AND CARLSON, JJ., CONCUR IN RESULT ONLY. DIAZ, J., NOT
PARTICIPATING.




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