       IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                            NO. 2014-KA-00243-COA

CHRISTOPHER EDWARD THOMAS A/K/A                                    APPELLANT
CHRISTOPHER THOMAS A/K/A CHRIS
THOMAS

v.

STATE OF MISSISSIPPI                                                 APPELLEE

DATE OF JUDGMENT:                     02/06/2014
TRIAL JUDGE:                          HON. SMITH MURPHEY
COURT FROM WHICH APPEALED:            PANOLA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:               OFFICE OF STATE PUBLIC DEFENDER
                                      BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                OFFICE OF THE ATTORNEY GENERAL
                                      BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY:                    JOHN W. CHAMPION
NATURE OF THE CASE:                   CRIMINAL - FELONY
TRIAL COURT DISPOSITION:              CONVICTED OF CONSPIRACY TO
                                      COMMIT ARMED ROBBERY AND
                                      SENTENCED TO FIVE YEARS, AND
                                      CONVICTED OF CAPITAL MURDER AND
                                      SENTENCED TO LIFE IMPRISONMENT
                                      WITHOUT PAROLE, WITH THE
                                      SENTENCES TO RUN CONSECUTIVELY,
                                      IN THE CUSTODY OF THE MISSISSIPPI
                                      DEPARTMENT OF CORRECTIONS, AND
                                      TO PAY $11,000 IN RESTITUTION
DISPOSITION:                          AFFIRMED - 11/24/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE GRIFFIS, P.J., MAXWELL AND JAMES, JJ.

      MAXWELL, J., FOR THE COURT:

¶1.   Christopher Thomas appeals his conspiracy-to-commit-armed-robbery conviction.
He also challenges his capital-murder conviction. He raises weight and sufficiency-of-the-

evidence issues on both. After review, we find his co-conspirators’ testimony, along with

expert testimony and physical evidence from the murder scene, was sufficient to support the

conspiracy-to-commit-armed-robbery conviction.         And we find both his conspiracy

conviction and capital-murder conviction were supported by the weight of the evidence.

Because we find no merit to these or the other issues raised on appeal, we affirm.

                               Facts and Procedural History

¶2.    On the afternoon of May 3, 2013, Taneille “Nay” Burgess had some friends over to

her home in Panola County. Among those present were DeShaun “Shaun” Alexander, John

“Little John” Market, LaDaron “Little Bit” Taylor, Quendravious “Bug Eye” Taylor, and

Christopher “Lucky” Thomas (Chris).1 After drinking and smoking marijuana, the five men

left Taneille’s house in Taneille’s red jeep. They next stopped by a liquor store, then made

their way to a dice game at Markes “Cat Daddy” Jones’s house. Shaun and John dropped the

other three men off at Markes’s house and went to buy cigarettes. After picking up smokes,

they returned to Markes’s house but remained in the car.

¶3.    Meanwhile, Chris, LaDaron, and Quendravious hung out at Markes’s house. Tovell

“Taco” Henderson was one of several men shooting dice. Tovell won about $1,250, and

Chris lost all the money he wagered.

¶4.    According to LaDaron, Chris was “mad because he lost all his money[,]” and “he


       1
           Chris, LaDaron, and Quendravious are all first cousins.

                                              2
wanted to rob the whole dice game.” LaDaron also mentioned Chris said he was “going to

get something back from Tovell.” LaDaron claimed Chris decided to rob Tovell.

¶5.    After Chris gambled away his money, the five men left in the jeep. Shaun testified

Chris wanted to get some marijuana, but Quendravious remembered the group going to

Chris’s mom’s house to pick up more gambling money. LaDaron recalled there was already

one gun in the jeep before they stopped by Chris’s mother’s home. When they arrived at

Chris’s mom’s house, Chris went inside. Shaun saw Chris come back out to the jeep holding

a big, black pistol. This gun was different from the one LaDaron said was already in the

jeep. And LaDaron remembered Chris got “more money, . . . some weed[,] and another gun”

before getting back in the car at his mom’s house.

¶6.    The men then returned to Markes’s house so Chris could continue shooting dice.

Shaun and John remained in the jeep, while Chris, LaDaron, and Quendravious went back

inside. About twenty minutes later, the three men came back outside with Tovell.

¶7.    Chris and Tovell left Markes’s house together in Tovell’s white truck. Shaun, John,

LaDaron, and Quendravious hopped back in the jeep and followed Chris and Tovell until the

white truck pulled into a driveway. The four men circled the block. LaDaron, who admitted

he and Chris were both armed, testified he got out to see what Chris was doing because he

and Quendravious planned on getting “money and dope.” Quendravious got out of the jeep

too.

¶8.    After dropping LaDaron and Quendravious off, Shaun and John drove around for two


                                            3
or three minutes. Meanwhile, LaDaron and Quendravious approached the truck. Tovell was

sitting in the driver’s seat, and Chris was in the passenger’s seat. LaDaron got in behind

Tovell, and Quendravious sat behind Chris. Quendravious and LaDaron both testified they

saw Chris with a gun in the truck.

¶9.    According to Quendravious, Chris wanted to sell Tovell $300 worth of marijuana.

But LaDaron recalled Tovell did not want to buy any weed. Quendravious testified that

Tovell pulled out a wad of cash, and LaDaron jumped out of the truck and yelled, “Give me

that,” referring to the money. At trial, LaDaron testified he “demanded [Tovell] give [him]

everything he [had].” According to Quendravious, at this point, Tovell rushed LaDaron to

the ground, and LaDaron “let out one gunshot.”2 LaDaron also testified Tovell “jumped out

on [him] and rushed [him] to the ground and the gun went off.” LaDaron said after he shot

Tovell once, he pushed Tovell off of him and grabbed $1,500 in cash3 from him. He then

ran away and heard four or five more gunshots. When Quendravious heard the initial

gunshot, he too took off running. Right before he got back in the jeep, he heard more

gunshots. LaDaron testified Chris was the only person still back at the truck with a gun when

he heard the last four or five shots. So he believed Chris fired those last shots.

¶10.   Tina Flowers lived across the street from the shooting and recalled hearing two


       2
           In his initial statement to police, Quendravious said LaDaron shot Tovell twice. But
at trial, he insisted LaDaron only shot Tovell once. According to Quendravious, the officer
mistakenly wrote two shots were fired when taking his statement.
       3
           Police recovered $1,087 in blood-soaked cash next to Tovell’s body.

                                              4
gunshots. When she asked her daughter, Paige Flowers, to look outside, Paige started

screaming, “they are shooting that man!” Then, Tina and Paige heard several more gunshots

and called 911. Paige saw a single shooter standing over a man on the ground. The man on

the ground was not moving. Another neighbor, Ruby Henderson, was getting out of the

shower when she heard five or six gunshots. When she looked out the window, she saw two

men running up the road.

¶11.   As Shaun and John were driving around the neighborhood, Shaun heard a total of

seven gunshots with some pauses between shots. Shaun then heard someone yelling, “stop!”

He saw Quendravious, followed by LaDaron, running towards them. Shaun picked up the

two men in the jeep.4 After hearing police sirens, the four men went back to Taneille’s

house. Chris was nowhere in sight. While en route, Shaun recalled Quendravious being very

quiet, but LaDaron “was talking loud like something had happened” and hollering that “Chris

had killed a man.” According to Shaun, LaDaron admitted shooting Tovell twice before

running off.

¶12.   All the men except Chris returned to Taneille’s house around 10 p.m. that night. Once

there, they smoked more marijuana and drank liquor.5 Very early the next morning, Chris

called Taneille’s cell phone, and Quendravious answered. Chris asked Quendravious to


       4
         Quendravious claimed the first time he saw LaDaron with the gun was in the jeep
after the shooting. Quendravious and LaDaron both testified that they had seen both pistols
in the past, and that both guns belonged to Chris.
       5
           Once Shaun got his car from Taneille’s house, he immediately left and went home.

                                              5
come pick him up. And Quendravious and his cousin, Jerrick Todd, went to get Chris, who

had been hiding on a school bus with one of the pistols used in the shooting. Chris told the

two men he hid the gun on the school bus. This particular gun was found around two weeks

later by a student on the school bus.

¶13.   According to Quendravious, he, John, LaDaron, and Chris divvied up the stolen

money at Taneille’s house that night. Quendravious also claimed LaDaron wrapped the

pistol he had used in a shirt, and Quendravious hid the gun “outside[,] behind the fence line.”

The police never recovered this pistol. The next morning, police arrested LaDaron,

Quendravious, and Chris at Taneille’s house. Shaun was arrested four days later.

¶14.   Chris, LaDaron, and Quendravious were jointly indicted for conspiracy to commit

armed robbery. They were also charged with capital murder. Shaun was charged as an

accessory after the fact. The defendants’ trials were severed. And at the time of Chris’s trial,

none of the defendants had pled guilty or gone to trial.

¶15.   At Chris’s trial, several experts testified. Dr. Lisa Funte, a forensic pathologist,

performed Tovell’s autopsy and confirmed he suffered seven different gunshot wounds. She

testified the cause of death was multiple gunshot wounds, and the death was ruled a

homicide. Chad Suggs, an expert in trace evidence and gunshot-residue analysis, reviewed

the gunshot-residue-kit results obtained from Chris. He found there were “particles

indicative of gunshot residue” on Chris’s hands and palms. Starks Hathcock, a firearms

expert, testified that four of five shell casings were from a Hi-Point Model C9 9mm


                                               6
pistol—the particular gun Chris took from the scene, which was later recovered from the

school bus.

¶16.   Chris testified in his own defense. He blamed the others for the robbery and murder.

Chris claimed he panicked after LaDaron shot Tovell and picked up the pistol Quendravious

left at the crime scene. He hid with the gun on a nearby school bus until around 3 a.m. when

Quendravious and Jerrick picked him up. He admitted hiding the gun on the bus, but denied

shooting Tovell with it.

¶17.   A jury found Chris guilty of conspiracy to commit armed robbery. They also found

him guilty of capital murder. He was sentenced to concurrent sentences of five years and life

imprisonment. Chris appealed.

                                        Discussion

       I.     Conspiracy to Commit Armed Robbery & Sufficiency of the Evidence

¶18.   Chris first challenges the sufficiency of the evidence supporting his conspiracy-to-

commit-armed-robbery conviction. To test the legal sufficiency of the evidence, “we

consider all evidence in the light most favorable to the State.” Grossley v. State, 127 So. 3d

1143, 1147 (¶10) (Miss. Ct. App. 2013) (citing Bush v. State, 895 So. 2d 836, 843 (¶16)

(Miss. 2005)). “Credible evidence consistent with guilt must be accepted as true.” Id. The

State receives the benefit of all favorable inferences reasonably drawn from the evidence.

Id. After viewing the evidence in this light, we consider whether “any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Id.


                                              7
(quoting Bush, 895 So. 2d at 843 (¶16)).

¶19.   To establish conspiracy to commit armed robbery, the State must prove beyond a

reasonable doubt Chris agreed with one or more persons to commit an armed robbery.6 See

Miss. Code Ann. § 97-1-1(1) (Rev. 2014) (defining conspiracy as “two (2) or more persons

conspir[ing] either: (a) [t]o commit a crime; or . . . (h) [t]o accomplish any unlawful purpose,

or a lawful purpose by any unlawful means”); see also Moore v. State, 105 So. 3d 390, 394

(¶15) (Miss. Ct. App. 2012) (holding conspiracy requires the State to show two or more

persons agreed to commit the underlying crime). “[U]nder Mississippi law, the criminal

agreement alone is sufficient to establish the completed crime of conspiracy, [so] no overt

act need be prove[n] in furtherance of the conspiracy.” Stokes v. State, 141 So. 3d 421, 428

(¶31) (Miss. Ct. App. 2013) (citing Ford v. State, 546 So. 2d 686, 688 (Miss. 1989)). The

agreement does not have to be “expressed or formal.” Id. Instead, the jury may infer a

conspiracy from the circumstances, “particularly by declarations, acts, and conduct of the

alleged conspirators.” Young v. State, 910 So. 2d 26, 29 (¶11) (Miss. Ct. App. 2005). “Once

the existence of a conspiracy is shown, only slight evidence is required to connect a particular

defendant with the conspiracy.” Stokes, 141 So. 3d at 428-29 (¶31). And conspiracy can be

proven “entirely by circumstantial evidence.” Young, 910 So. 2d at 29 (¶11).



       6
         Armed robbery is: (1) a felonious taking or attempt to take, (2) from the person or
from his presence, (3) the personal property of another, (4) against his will, (5) by violence
to his person or by putting such person in fear of immediate injury to his person by the
exhibition of a deadly weapon. Miss. Code Ann. § 97-3-79 (Rev. 2014).

                                               8
¶20.   The jury found an agreement to commit armed robbery had been proved. And we find

the circumstances, statements, and actions of the conspirators were sufficient to support this.

¶21.   After Chris lost all his money to Tovell at the dice game, LaDaron said Chris was mad

and wanted to “get something back from Tovell.” LaDaron also testified that it was Chris’s

idea to rob Tovell, and that both guns used in the robbery belonged to Chris. Quendravious

confirmed Chris owned both guns. Chris retrieved a pistol from his mom’s house. And the

men returned to the dice game armed with two pistols. From there Chris got in the truck with

Tovell, while his co-conspirators followed close behind. LaDaron admitted he and Chris

were both armed. They followed Chris and Tovell because he and Quendravious planned on

getting some money and dope. LaDaron and Quendravious got into Tovell’s truck with Chris

and Tovell.    Both claimed Chris had a gun.         LaDaron explained how the robbery

happened—when Tovell pulled out a wad of cash, LaDaron jumped out and demanded all

of Tovell’s money. Tovell then wrestled LaDaron to the ground and at least one shot was

fired immediately. LaDaron grabbed some cash and took off. The men later split the stolen

money.

¶22.   Viewing this evidence in the light most favorable to the State, we find it more than

sufficient to prove Chris’s participation in a conspiracy to commit armed robbery.

       II.    Conspiracy to Commit Armed Robbery & Weight of the Evidence

¶23.   Chris’s next challenge is to the weight of the evidence supporting his conspiracy-to-

commit-armed-robbery conviction. He requests a new trial. A motion for a new trial


                                              9
challenges the weight of the evidence. Grossley, 127 So. 3d at 1149 (¶19) (citing Bush, 895

So. 2d at 844 (¶18)). We will grant a new trial “only in exceptional cases in which the

evidence preponderates heavily against the verdict.” Id. This court views “the evidence in

the light most favorable to the verdict and ‘will only disturb a verdict when it is so contrary

to the overwhelming weight of the evidence that to allow it to stand would sanction an

unconscionable injustice.’” Id. (quoting Bush, 895 So. 2d at 844 (¶18)).

¶24.   For reasons already discussed in section I, viewing the evidence in the light most

favorable to the verdict, we find Chris’s conspiracy-to-commit-armed-robbery conviction

was supported by the weight to the evidence.

       III.   Capital Murder & Weight of the Evidence

¶25.   Chris also challenges the weight of the evidence supporting his capital-murder

conviction.7 Capital murder is the “killing of a human being without the authority of law by

any means or in any manner . . . [w]hen done with or without any design to effect death, by

any person engaged in the commission of the crime of . . . robbery[.]” Miss. Code Ann. §

97-3-19(2)(e) (Supp. 2015).

¶26.   As previously discussed, the evidence supported the jury’s inference that Chris

conspired with LaDaron and Quendravious to commit armed robbery. LaDaron testified he

and Chris were both armed with both of Chris’s guns during the robbery. LaDaron admitted



       7
        Chris does not challenge the sufficiency of the evidence supporting his capital-
murder conviction.

                                              10
he tried to snatch the cash from Tovell, but when Tovell tackled him, LaDaron shot him once

and ran. Quendravious also said LaDaron only shot Tovell once before they ran off.8 Both

LaDaron and Quendravious said they heard several more gunshots right before they got into

the jeep. LaDaron specifically recalled hearing four or five more shots after he ran off. And

Chris was the only person left back at the truck when the last four or five shots were fired.

Ruby testified that she looked out the window, saw two men running, and then heard five to

six gunshots, which would corroborate the evidence that Chris shot Tovell five to six times.

This testimony is consistent with the autopsy evidence showing Tovell died from seven9

separate gunshot wounds. Further, Chris’s hands and palms contained “particles indicative

of gunshot residue.”       Also telling was that when LaDaron returned to the jeep, he

immediately informed the other men Chris had killed someone. Finally, Chris hid on a

school bus with one of the two murder weapons until the wee hours of the next morning.

And four of five shell casings recovered from the scene had been fired from the gun Chris

admitted hiding on the bus.

¶27.   Viewing the evidence in the light most favorable to the verdict, we find the weight of

the evidence supports Chris’s capital-murder conviction.

       IV.      Exclusion of Co-Conspirator’s Statement Based on Hearsay

       8
        The evidence consistently showed LaDaron shot Tovell either once or twice. In
Quendravious’s first statement to police, he said LaDaron shot Tovell twice. Tina, the
neighbor, said she heard two gunshots, then a long pause, and then several more gunshots.
And Shaun claimed LaDaron said he shot Tovell twice.
       9
           Shaun also testified that he heard a total of seven gunshots.

                                               11
¶28.   Next, Chris argues the circuit court erred in limiting his attorney’s cross-examination

of Shaun, pointing to the following exchange between Shaun and Chris’s trial attorney:

       Q:                   Speaking of guns, what do you know about [LaDaron]
                            having a gun?

       A:                   I didn’t know if he had one or not.

       Q:                   Did [Quendravious] tell you earlier that [LaDaron] –
                            earlier that night –

       [State:]             Judge, I’m going to object. This is hearsay.

       [Court:]             Response?

       [Chris’s Attorney:] Your Honor, . . . [the State has them] indicted as co-
                           conspirators. I think anything a co-conspirator says –
                           that’s the way he’s indicted it and that’s the way he’s got
                           to travel. I think it falls under the exception.

       [Court:]             You’re conceding that there’s been a conspiracy
                            established?

       [Chris’s Attorney:] No, sir.

       [Court:]             Okay. Then lay your predicate. At this point in time the
                            objection will be sustained.

       [Chris’s Attorney:] I’ll withdraw the question.

(Emphasis added).

¶29.   Under Mississippi Rule of Evidence 801(d)(2)(E), an admission by a party-opponent

is not hearsay if the statement is offered against a party and is “a statement by a co-

conspirator of a party during the course and in furtherance of the conspiracy.” In this

evidentiary context, the “contents of the statement shall be considered but are not alone

                                             12
sufficient to establish the . . . existence of the conspiracy and the participation therein of the

declarant and the party against whom the statement is offered[.]” M.R.E. 801(d)(2). But

“before the statement of an alleged co-conspirator can be admitted as evidence, the trial

court must determine that there is preliminary evidence of a conspiracy.” Sullivan v. State,

749 So. 2d 983, 988 (¶5) (Miss. 1999) (emphasis added).

¶30.   The trial judge was certainly aware of Rule 801(d)(2)’s dictates. He accepted defense

counsel’s concession that a predicate for conspiracy had not been established. So he

sustained the objection until a proper predicate was laid. At this point, Chris’s counsel

elected to withdraw his question. And the record shows he abandoned this line of

questioning by failing to pursue it later. Thus, this issue is waived.

       V.      Newly Discovered Evidence, Brady, and Weathersby

¶31.   Chris filed a supplemental pro se appellate brief. In it, he insists newly discovered

evidence shows he did not commit capital murder. He also generally mentions Brady v.

Maryland, 373 U.S. 83 (1963), and claims the State withheld exculpatory evidence that his

co-conspirator LaDaron killed Tovell.10 As Chris sees it, if LaDaron had “appropriately


       10
         Chris also cites Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933),
and argues his version of the facts must be accepted as true. Under the so-called Weathersby
rule:

       [W]here the defendant or the defendant's witnesses are the only eyewitnesses
       to the homicide, their version, if reasonable, must be accepted as true, unless
       substantially contradicted in material particulars by a credible witness or
       witnesses for the [S]tate, or by the physical facts or by the facts of common
       knowledge.

                                               13
admitted that he had in fact killed [Tovell],” instead of testifying Chris killed him, “then the

jury would not have convicted” Chris of capital murder.

¶32.   But what he pitches is not really newly discovered evidence. To qualify as “newly

discovered evidence,” there must be (1) evidence not discoverable by the exercise of due

diligence at trial, (2) that is almost certainly conclusive that if discovered would have caused

a different result. In re Hill, 460 So. 2d 792, 796 (Miss. 1984).

¶33.   First, Chris has not unearthed anything new. Indeed, LaDaron testified at Chris’s trial,

so his testimony was not unknown. LaDaron admitted shooting Tovell, whom he claimed

was still alive when he fled. And after LaDaron snatched cash from Tovell and ran, he heard

four or five more shots—the gunshots he blamed on Chris. Indeed, LaDaron was cross-

examined by Chris’s attorney, and LaDaron’s testimony never changed during Chris’s trial.

Still, even removing LaDaron’s testimony, there was ample independent evidence supporting

Chris’s guilt, including other conspirator testimony, his bus-hiding episode, gunshot residue

on Chris’s hands, shell casings from the scene that were fired from Chris’s pistol, and

witness testimony about additional shots fired and two men seen running. So we find his

new-evidence argument fails.

¶34.   Chris also mentions Brady, so we consider if favorable material exculpatory or



Id. But Chris did not bring up the Weathersby rule as a defense at trial or in his motion for
a judgment notwithstanding the verdict. So he is procedurally barred from raising it on
appeal. Page v. State, 64 So. 3d 482, 489 (¶29) (Miss. 2011). Furthermore, his version was
contradicted by other witnesses and physical evidence, so the rule is inapplicable on these
facts.

                                              14
impeachment evidence was suppressed. Brady, 373 U.S. at 87. Before any Brady violation

can arise, there must be a suppression, but Chris shows none.

¶35.   What Chris does mention is that after his own trial and conviction, LaDaron later pled

guilty to manslaughter for Tovell’s death. However, Chris has shown no evidence that

LaDaron had a plea agreement in hand or was promised leniency for his testimony during or

before Chris’s trial.     Absent evidence of undisclosed exculpatory or impeachment

information, we refuse to speculate such into the record.

¶36.   Furthermore, LaDaron’s supposed guilty plea and colloquy are not in the record, nor

could they have been, without supplementation, since LaDaron had not pled guilty at the time

of Chris’s trial. So it is questionable whether issues involving the later manslaughter plea

are properly before us. See Ross v. State, 16 So. 3d 47, 60 (¶35) (Miss. Ct. App. 2009) (As

a reviewing court, “we limit our inquiry to those facts contained strictly in the record, . . . not

. . . mere assertions in the briefs.” (quotation marks omitted)).

¶37.   Chris also suggests improprieties in the firearms expert’s discussion of the shell

casings purportedly fired from his firearm and the gunpowder residue recovered from his

hands. But like his challenge to LaDaron’s credibility, these witnesses were also subject to

cross-examination, and the jury was responsible for the weight and credibility given to their

testimony. See Grossley, 127 So. 3d at 1149 (¶21) (“weight and credibility of a witness’s

testimony are within the sole province of the jury as fact-finder”). To the extent Chris argues

the State sponsored perjured testimony, he again offers nothing more than his own


                                                15
suggestions to support this. We thus find no error here.

       VI.    Fair Trial

¶38.   Chris’s last pro se argument mentions a shocking device he says he was required to

wear at trial. But the record shows that before trial, Chris objected to wearing the ankle

security device. And the circuit judge allowed him to remove it.

¶39.   The judge initially noted, “You are in civilian clothes, a brown checked tweed jacket,

matching tie, black slacks, corresponding brown shoes. The pants do appear to fit you a little

bit loosely and the device that is being discussed in this matter is one that is contained inside

of your pants leg. It’s nonvisual to anyone. And [it] is not apparent as you having any sort

of restraint.” As the judge appreciated it, the device would only administer a shock if the

defendant tried to flee or pose a danger to someone. Until the device was brought to the

court’s attention, the judge “saw nothing that indicated [Chris] was wearing anything. I

couldn’t see anything different about his gait, how he walked, or the clothing he was

wearing.” But the court was concerned the jury might somehow hear an “audible signal”

from the device. So the anklet was removed, with a warning that if Chris later posed “a

specific danger to anyone, including [himself], that [he would] be wearing this device.”

Because Chris did not ultimately wear the device and there is no indication the jury saw the

anklet before its removal, his claim lacks merit.

¶40.   We thus affirm.

¶41. THE JUDGMENT OF THE PANOLA COUNTY CIRCUIT COURT OF
CONVICTION OF CONSPIRACY TO COMMIT ARMED ROBBERY AND

                                               16
SENTENCE OF FIVE YEARS, AND CONVICTION OF CAPITAL MURDER AND
SENTENCE OF LIFE IMPRISONMENT WITHOUT PAROLE, WITH THE
SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY $11,000 IN
RESTITUTION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO PANOLA COUNTY.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR,
JAMES AND WILSON, JJ., CONCUR.




                                  17
