      IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                       NO. 2015-KA-00215-COA

LADELL MAGGETT, JR., JERRY STEWART                  APPELLANTS
A/K/A JERRY UNDRE STEWART AND KELVIN
TAYLOR A/K/A KEVIN TAYLOR

v.

STATE OF MISSISSIPPI                                   APPELLEE

DATE OF JUDGMENT:              11/13/2014
TRIAL JUDGE:                   HON. ALBERT B. SMITH III
COURT FROM WHICH APPEALED:     BOLIVAR COUNTY CIRCUIT COURT,
                               SECOND JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANTS:      AZKI SHAH
                               KELVIN TAYLOR (PRO SE)
                               JERRY STEWART (PRO SE)
                               OFFICE OF STATE PUBLIC DEFENDER
                               BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:         OFFICE OF THE ATTORNEY GENERAL
                               BY: LADONNA C. HOLLAND
DISTRICT ATTORNEY:             BRENDA FAY MITCHELL
NATURE OF THE CASE:            CRIMINAL - FELONY
TRIAL COURT DISPOSITION:       EACH APPELLANT CONVICTED OF
                               CAPITAL MURDER AND SENTENCED TO
                               LIFE WITHOUT THE POSSIBILITY OF
                               PAROLE; AND POSSESSION OF A
                               FIREARM BY A CONVICTED FELON AND
                               SENTENCED TO TEN YEARS AND A
                               $5,000 FINE; WITH THE SENTENCES TO
                               BE SERVED CONSECUTIVELY IN THE
                               CUSTODY OF THE MISSISSIPPI
                               DEPARTMENT OF CORRECTIONS
DISPOSITION:                   AFFIRMED: 12/13/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

     BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.
       FAIR, J., FOR THE COURT:

¶1.    The body of Quenton McKay was found on a gravel road in Bolivar County, about a

mile off Highway 61. McKay had been shot six times, and his wrists were bound with duct

tape. The State alleged that McKay was executed on the orders of Jerry Stewart after a drug

deal gone bad. Stewart, Laddell Maggett, and Kelvin Taylor were convicted of capital

murder. Each was also convicted of possession of a firearm after a felony conviction. They

appeal, raising numerous issues. We find no error and affirm.

                                         FACTS

¶2.    The prosecution was built on the testimony of two accomplices turned State’s

witnesses, Tresten Chatman and Christopher Anderson. There were some differences in their

accounts, but both agreed that McKay and Chatman had arranged for Stewart to buy a

kilogram of cocaine from an associate of McKay’s in Memphis, and the cocaine turned out

to be mostly baking soda. On the way back from the exchange, Stewart summoned

Anderson, Maggett, and Taylor for assistance. McKay’s hands were bound, and he was

given a phone and told to get the money back. After McKay could not do it, they took him

to a remote location, where Chatman was ordered to shoot McKay or be killed himself.

Chatman fired one or more shots, followed by Maggett, and depending on the account,

Taylor.

¶3.    Chatman testified that his family had been threatened if he talked. But Chatman was

soon arrested, and after initial denials, he implicated Stewart, Taylor, and Anderson – and,


                                             2
eventually, Maggett. Anderson’s account agreed in most respects, but he, like Chatman,

appeared to minimize his own culpability.

¶4.    Stewart testified in his own defense. He admitted to being involved in the drug deal,

but according to him, his role was just to drive the vehicle. Anderson and Stewart’s brother

were the real purchasers of the cocaine. Stewart claimed that he parted ways with Chatman,

Anderson, and McKay after returning from the drug deal, with the implication that the State’s

witnesses had murdered McKay and were trying to pin it on him. Stewart and Maggett also

produced alibi witnesses who claimed to have been with them at the time of the killing.

¶5.    Convicted by the jury, Maggett, Stewart, and Taylor appeal.

                                      DISCUSSION

¶6.    All three defendants are represented by counsel on appeal, who have filed briefs on

their behalf. Stewart and Taylor have also filed pro se supplemental briefs. We have

consolidated and reorganized the issues for efficiency and clarity.

       1.     Impeachment of Anderson

¶7.    Prior to trial, Maggett filed a motion to impeach Anderson with his prior convictions

for possession of cocaine and armed robbery, which were more than ten years old. The trial

court denied the motion.

¶8.    On appeal, Maggett and Stewart contend that this was error. They rely on Young v.

State, 731 So. 2d 1145 (Miss. 1999), which found a trial court in error for essentially

conducting a Mississippi Rule of Evidence 609(a)(1)(B) balancing test when the witness was


                                             3
not a party. It held that admissibility should have been analyzed under the more permissive

Rule 609(a)(1)(A).

¶9.    This authority is simply inapposite, as Rule 609(a) applies to convictions less than ten

years old, and Anderson’s convictions were more than ten years old. Rule 609(b) applies to

convictions over ten years of age, stating:

       (b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies
       if more than 10 years have passed since the witness’s conviction or release
       from confinement for it, whichever is later. Evidence of the conviction is
       admissible only if:

              (1) its probative value, supported by specific facts and
              circumstances, substantially outweighs its prejudicial effect; and

              (2) the proponent gives an adverse party reasonable written
              notice of the intent to use it so that the party has a fair
              opportunity to contest its use.

The record reflects that the trial court properly considered this issue under Rule 609(b). No

abuse of discretion has been shown.

       2.     Severance

¶10.   Stewart and Maggett next contend that the trial court erred in denying their motions

to sever the trials based on retroactive misjoinder, as they were charged with felony murder

and being in possession of a firearm after a felony conviction. This argument fails because

the doctrine of retroactive misjoinder can only apply when one of the counts has been

vacated or otherwise found to be invalid, and the appealing defendant was prejudiced by

being tried on the supported and unsupported allegations together. See Williams v. State, 37


                                              4
So. 3d 717, 725-26 (¶25) (Miss. Ct. App. 2010). That did not occur here, as we affirm both

counts for all of the defendants.

¶11.   Maggett also presents a cursory argument that his trial should have been severed based

on the fact that there was more evidence against Stewart than the other defendants.1

¶12.   “Defendants jointly indicted for a felony are not entitled to separate trials as a matter

of right.” Carter v. State, 799 So. 2d 40, 44 (¶13) (Miss. 2001). On the contrary, “[j]oint

trials generally serve the interests of justice by avoiding inconsistent verdicts and enabling

more accurate assessment of relative culpability – advantages which sometimes operate to

the defendant’s benefit.” Cavett v. State, 717 So. 2d 722, 727 (¶30) (Miss. 1998) (quoting

Richardson v. Marsh, 481 U.S. 200, 210 (1987)). A trial court’s denial of a motion to sever

will not be overturned on appeal absent an abuse of discretion. King v. State, 857 So. 2d 702,

716 (¶19) (Miss. 2003); URCCC 9.03. Severance is required only when it “is necessary to

promote a fair determination of the defendant’s guilt or innocence.” Carter, 799 So. 2d at

44 (¶13). The two criteria to be considered in reviewing the denial of a severance are (1)

“whether . . . the testimony of one co-defendant tends to exculpate that defendant at the

expense of the other defendant” and (2) “whether the balance of the evidence introduced at

trial tends to go more to the guilt of one defendant rather than the other.” Hawkins v. State,

538 So. 2d 1204, 1207 (Miss. 1989). A showing of prejudice from the failure to grant



       1
        Maggett and Stewart are represented by the same attorney on appeal, but he
apparently makes this contention only on Maggett’s behalf.

                                               5
severance is required to secure reversal on appeal. See id.

¶13.   Here, Maggett admits that Stewart did not attempt to exculpate himself at his

codefendants’ expense. He focuses only on the second factor, claiming that there was much

more evidence of Stewart’s guilt than his own. Maggett points to the evidence concerning

the drug deal, which Stewart was admittedly a part of. However, it was alleged that the

crimes occurred in the immediate wake of the drug deal, and that the deal’s failure was the

motive for McKay’s kidnapping and murder. Thus, the evidence of the drug deal would

have been admissible in a hypothetical separate trial for Maggett, as evidence of motive and

to tell the whole story of the offense. The State has a “legitimate interest in telling a rational

and coherent story of what happened.” Keller v. State, 138 So. 3d 817, 855 (¶93) (Miss.

2014) (citation omitted). Evidence of prior bad acts, by the defendant or others, “is

admissible in instances where the prior bad acts are integrally related in time, place and fact

with the crime for which the defendant is being tried.” Id. (citation omitted).

¶14.   We find no abuse of discretion in denying the motions to sever.

       3.      Legal Sufficiency of the Indictment

¶15.   Next, all three appellants contend that their indictments for capital murder, with the

underlying crime of kidnapping, were fatally defective because they failed to explicitly

specify that McKay was the victim of the kidnapping as well as the murder.

¶16.   This objection to the indictments was not raised before the trial court.

Nonjurisdictional defects in the indictment may not be attacked for the first time on appeal


                                                6
absent a showing of cause and actual prejudice. Crawford v. State, 716 So. 2d 1028, 1050-51

(¶82) (Miss. 1998) (superceded by rule on other grounds, as recognized by Miss. Transp.

Comm'n v. McLemore, 863 So. 2d 31, 39 (¶22) (Miss. 2003)). Mississippi law recognizes

only two such jurisdictional defects: where the “indictment fails to charge a necessary

element of a crime or if there exists no subject matter jurisdiction.” Banana v. State, 635 So.

2d 851, 853 (Miss.1994); see also Brown v. State, 37 So. 3d 1205, 1209-10 (¶9) (Miss. Ct.

App. 2009).

¶17.   Here, the appellants appear to be attempting to travel under the first exception – the

lack of a necessary element. They rely entirely on Rowland v. State, 98 So. 3d 1032, 1038-39

(¶12) (Miss. 2012), where the Mississippi Supreme Court held that a capital murder

indictment, with the underlying offense of robbery of certain specified individuals “and

others,” would not be valid as to the “others.” In so doing, the supreme court seemed to hold

that the identity of the victim of the underlying offense, when it is robbery, is a necessary

element of an indictment for capital murder. See id. That would have been an aberration,

as the supreme court had held before Rowland that, other than a limited exception for

burglary, “it is not necessary to specifically set forth the elements of the underlying felony

used to elevate the crime to capital murder.” Gray v. State, 728 So. 2d 36, 70-71 (¶¶173-74)

(Miss. 1998) (overruled on other grounds by Franklin v. State, 170 So. 3d 481, 487 (¶22)

(Miss. 2015)). Since Rowland, the old rule has been repeated in even more unequivocal

language in Batiste v. State, 121 So. 3d 808, 836 (¶43) (Miss. 2013): “In capital-murder


                                              7
cases, unless the underlying felony is burglary, the underlying felony that elevates the crime

to capital murder must be identified in the indictment along with the section and subsection

of the statute under which the defendant is being charged. No further detail is required.”

(Citations omitted).

¶18.   We conclude that Rowland has been superseded by Batiste on this point, and that the

identity of the victim of the underlying offense is not a necessary element of capital murder.

The indictments here were adequate under Batiste. This issue is without merit.

       4.     Admissibility of Statements

¶19.   Maggett and Stewart challenge the denial of a pretrial defense motion to determine

the admissibility into evidence of out-of-court statements made by Anderson and Chatman.

The trial court found them to be hearsay and not subject to any exception, though it did allow

the defendants to use the statements extensively in impeaching Anderson and Chatman,

including allowing the defendants to play nearly the entire recordings for the jury. On

appeal, Maggett and Stewart contend that the statements were party admissions under

Mississippi Rule of Evidence 801(d)(2)(A) and should have been admitted into evidence.

This contention is without merit, as witnesses for the State are not “party opponents” under

the hearsay exception in Rule 801(d)(2). See Goodson v. State, 566 So. 2d 1142, 1148 n.11

(Miss. 1990). Maggett and Stewart also seem to argue that the statements were admissible

under Rule 801(d)(2)(E) as statements “by a co-conspirator of a party” opponent in

furtherance of a conspiracy. This argument fails for the same reason as the first.


                                              8
       5.     Sufficiency of the Evidence

¶20.   Maggett and Stewart challenge the sufficiency of the evidence. In evaluating the

sufficiency of the evidence, this Court must decide whether it allows a jury to find “beyond

a reasonable doubt that [the] accused committed the act charged, and that he did so under

such circumstances that every element of the offense existed; and where the evidence fails

to meet this test it is insufficient to support a conviction.” Bush v. State, 895 So. 2d 836, 843

(¶16) (Miss. 2005). “[T]he relevant question is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia,

443 U.S. 307, 315 (1979)).

¶21.   The appellants point to the rule of law that a conviction cannot be upheld when it is

solely based on the testimony of an accomplice, “if the accomplice testimony is

uncorroborated and is unreasonable, self-contradictory, or substantially impeached.” Cowart

v. State, 178 So. 3d 651, 667 (¶44) (Miss. 2015) (citation omitted). The State seems to

concede that both Anderson and Chatman were accomplices for the purpose of this analysis.2

We have previously observed that there is no Mississippi caselaw to support the contention

that one accomplice cannot corroborate another, Hendrix v. State, 957 So. 2d 1023, 1028 (¶9)



       2
         Although both witnesses actually denied criminal responsibility for McKay’s death,
for our purposes one is considered an accomplice “if the evidence admits a reasonable
inference that the witness may have been a co-perpetrator or the sole perpetrator.” Brown
v. State, 890 So. 2d 901, 910 (¶23) (Miss. 2004).

                                               9
(Miss. Ct. App. 2007); but the State seems to accept that accomplices cannot corroborate one

another, and so we assume that for the purposes of our analysis.

¶22.   We first address the State’s contention that the accounts were corroborated by certain

details, especially Chatman’s testimony. Chatman claimed that McKay’s head was covered

with a “Spider-Man” themed pillowcase, taken from Stewart’s house. When the house was

searched by the authorities, Spider-Man bedsheets were observed, but not matching

pillowcases.3 Chatman also said Stewart had snack cakes on top of his refrigerator, which

he had seen because Stewart gave one to McKay; and snack cakes were found where he said

they would be. It is true that “[o]nly slight corroboration of an accomplice’s testimony is

required to sustain a conviction,” but “[t]he testimony that must be corroborated is the part

connecting the defendant to the crime.” Osborne v. State, 54 So. 3d 841, 846 (¶22) (Miss.

2011) (citations omitted). The pillowcase Chatman said was used to cover McKay’s head

was never independently shown to be connected to the murder, nor were the snack cakes.

This evidence simply showed that Chatman had been inside Stewart’s house; it did not

necessarily tie the defendants to the murder. And so we cannot find the accomplice

testimony here to have been corroborated.

¶23.   “If the [accomplice] testimony is not corroborated, a cautionary jury instruction is

required.” Id. The instruction was, in fact, given, and the jury nonetheless convicted. So

we take the question on appeal to be whether the accomplice testimony here was so


       3
           It is unclear whether the authorities actively searched for the pillowcases.

                                               10
“unreasonable, self-contradictory, or substantially impeached” that a properly instructed jury

could not find it sufficient to sustain a conviction. See Cowart, 178 So. 3d at 667 (¶44).

¶24.   As to the contention that the testimony was substantially impeached, the appellants

point to Anderson’s and Chatman’s initial denials of knowledge of the murder and the

contradictions between their two accounts. Clearly, Anderson and Chatman were impeached;

but prior inconsistent statements of an accomplice, if explained at trial, do not necessarily

render the testimony “substantially” impeached as a matter of law. See Osborne, 54 So. 3d

at 847 (¶23); McNeal v. State, 757 So. 2d 1096, 1098 (¶5) (Miss. Ct. App. 2000).

¶25.   Likewise, the accounts were not self-contradictory, though they did contradict each

other on some of the details, notably: whether McKay had a pillowcase over his head when

he was shot, whether Chatman shot McKay once or many times, and whether Taylor was one

of the shooters. These disputes between the two witnesses presented a question of credibility

for the jury, and our standard of review does not permit this Court to substitute our judgment

for that of the jury on the question of credibility. It has been “repeatedly held that in a

criminal prosecution the jury may accept the testimony of some witnesses and reject that of

others, and that they may accept in part and reject in part the evidence on behalf of the [S]tate

or on behalf of the accused. In other words, the credibility of witnesses is not for the

reviewing court.” Hughes v. State, 735 So. 2d 238, 276-77 (¶177) (Miss. 1999) (citation

omitted). Furthermore, in reviewing the sufficiency of the evidence, the evidence must be

viewed in the light most favorable to the prosecution. Bush, 895 So. 2d at 843 (¶16).


                                               11
¶26.   The record reflects that Chatman and Anderson were thoroughly cross-examined on

their initial denials and on the inconsistencies between their testimonies at trial. The jury was

also properly instructed that it should view the testimony of accomplices with “great care and

caution,” and it still elected to convict. We cannot find the convictions here to be

unsupported by sufficient evidence.

       6.     Weight of the Evidence

¶27.   Taylor contends that his conviction was against the overwhelming weight of the

evidence. The legal standard for reviewing a challenge to the weight of the evidence is

similar to, but distinct from, the review of a challenge to the sufficiency of the evidence. An

attack on the weight of the evidence will be successful only when the verdict “is so contrary

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

unconscionable injustice.” Bush, 895 So. 2d at 844 (¶18). “[T]he evidence must be viewed

in the light most favorable to the verdict[.]” Jenkins v. State, 131 So. 3d 544, 551 (¶23)

(Miss. 2013). A new trial should be granted “only in exceptional cases in which the evidence

preponderates heavily against the verdict.” Bush, 895 So. 2d at 844 (¶18) (citation omitted).

And because the trial judge had a firsthand view of the trial, “reversal is warranted only if

the trial court abused its discretion in denying [the] motion for a new trial.” Waits v. State,

119 So. 3d 1024, 1028 (¶13) (Miss. 2013).

¶28.   Factually, Taylor’s challenge to the weight of the evidence is similar to the other

defendants’ challenge to its sufficiency.       As we explained above, there were some


                                               12
contradictions between the accounts of the two witnesses, and each had previously made

inconsistent statements. But the accounts were also largely in agreement, and the credibility

of the individual witnesses was for the jury. Hughes, 735 So. 2d at 276-77 (¶177).

¶29.   Taylor adds the additional argument that the story advanced by Chatman and

Anderson does not make sense – he asks why Stewart would call on his friends for assistance

in dealing with Chatman and McKay, and why Stewart would blame McKay and Chatman

for his being ripped off. Thus, according to Taylor, the State’s proof is the “unreasonable,”

uncorroborated accounts of accomplices, and thus cannot sustain his convictions. See

Cowart, 178 So. 3d at 667 (¶44). However, there are reasonable explanations for Stewart’s

conduct: he called for help because he was outnumbered by McKay and Chatman, and he

blamed them for the drug deal’s failure because they were the ones who had arranged it. We

find no merit to these contentions, and we cannot find Taylor’s convictions to be against the

overwhelming weight of the evidence.

       7.     Admissibility of Cell Phone Records

¶30.   Next, Maggett and Stewart challenge the trial court’s refusal to admit into evidence

cell phone records from phones allegedly belonging to or used by various individuals

involved in the case. The trial court refused to admit the records into evidence because they

were not authenticated. On appeal, Maggett and Stewart contend that the trial court erred in

refusing to find the records self-authenticating under Mississippi Rule of Evidence 902(11)

as a certified records of a regularly conducted activity. However, Rule 902(11)(C) requires


                                             13
that “the proponent give[] notice to adverse parties of the intent to offer the records as

self-authenticating under this rule and provide[] a copy of the records and of the

authenticating certificate” so that the adverse party has “a fair opportunity to consider the

offer and state any objections.” Here, it is undisputed that notice was not given pursuant to

this rule. The rule specifically requires that the notice be of the intent to offer the documents

as self-authenticating; providing them in discovery is not enough.

¶31.   Maggett and Stewart contend that, even if the records are not self-authenticating, they

would have been admissible under the “catch all” hearsay exception, Mississippi Rule of

Evidence 803(24). But even if we were to assume that the records met a hearsay exception,

hearsay exceptions and authentication are separate issues. Burchfield v. State, 892 So. 2d

248, 254 (¶20) (Miss. Ct. App. 2004). We find no error in the exclusion of the phone records

on the basis of authenticity.

       8.     Prosecutorial Misconduct – Comments

¶32.   Next, Stewart and Maggett allege prosecutorial misconduct in two questions from the

prosecutor during her cross-examination of Stewart. In one, Stewart was asked whether he

owned a nightclub, which he denied. This was in reference to a business Stewart owned,

which he described as a restaurant. Later, in closing arguments, the prosecutor claimed that

the restaurant really was a nightclub, apparently without any basis in record. Also during

Stewart’s cross-examination, she asked Stewart where his girlfriend’s children were during

the time she provided him with an alibi. Stewart replied that they were not doing well in


                                               14
school and had moved to live with their grandparents. The prosecutor then asked whether

the children were doing poorly in school because of the conditions at home, which Stewart

denied.

¶33.   We note that no objections were made to either the question or the statement during

the closing argument. These issues were waived and are procedurally barred on appeal.

Havard v. State, 928 So. 2d 771, 791 (¶34) (Miss. 2006). Notwithstanding the procedural

bar, we see no reversible error in either comment. The jury was properly instructed that

remarks of counsel were not evidence and that it should disregard statements that were not

based in the evidence. Furthermore, reversible error can only be found where improper

statements prejudicially affected the defendants’ rights and where “the natural and probable

effect of the improper argument of the prosecuting attorney is to create an unjust prejudice

against the accused as to result in a decision influenced by the prejudice so created.”

Franklin v. State, 136 So. 3d 1021, 1030 (¶31) (Miss. 2014). We cannot find that these

statements of the prosecutor rose to that level.

       9.     Prosecutorial Misconduct – Cross-Examination of Stewart’s Girlfriend

¶34.   Stewart complains in his pro se brief regarding the prosecutor’s question to his

girlfriend, on cross-examination, about whether she was “aware of some property Jerry

Stewart has on Douglas Street.” After an objection to the lack of a factual basis was

overruled, without the prosecutor being required to give a factual basis for the question, the

prosecutor restated the question as whether the girlfriend was aware of “any” property


                                             15
Stewart had on Douglas Street. The girlfriend answered “no.” On appeal, Stewart complains

that the questions impermissively insinuated that Stewart possessed a location where some

of the events took place, a house on Douglas Street in Clarksdale.

¶35.     The man who owned the house testified that it had been rented by Anderson, though

he was inconsistent about whether Anderson rented the house at the relevant time. Anderson

himself denied that he rented it, though he admitted he had sometimes played video games

there. Stewart denied that he owned or rented it; he claimed it was Anderson’s and that it

was a “trap house.”4 Chatman said he had “heard on the street” that Anderson rented the

house.

¶36.     Thus, the record reveals a genuine issue about who controlled the house during the

relevant time, but other than the fact that some witnesses described Stewart using the house

as he pleased, there was little to no evidence Stewart owned or rented it. While we agree

with Stewart that the questions suggest that he owned the house, and that there is no apparent

good faith factual basis for the question, we find any error here to be harmless. Insinuations

on cross-examination can be reversible error, but to rise to the level of reversible error, they

must be unfairly prejudicial and result in the denial of a fair trial to the accused. See Archer

v. State, 118 So. 3d 612, 619-20 (¶¶18-22) (Miss. Ct. App. 2012).

¶37.     Again, the jury was instructed that remarks of counsel are not evidence, and that it



         4
        A trap house is one used in the drug trade or for other illicit activities. See, e.g.,
Gomillion v. State, 769 S.E.2d 914, 915 (Ga. 2015).

                                              16
should disregard statements that were not based in the evidence. The question of who owned

the house was collateral to the crimes at issue, and any prejudice from being associated with

a “trap house” would be cumulative to Stewart’s own admissions regarding his participation

in the drug trade, including previously visiting the house at issue. It is axiomatic that an

accused is entitled to a fair trial, not a perfect one. See, e.g., Ronk v. State, 172 So. 3d 1112,

1148 (¶109) (Miss. 2015). We cannot find that the prosecutor’s insinuation here denied

Stewart a fair trial.

       10.     Prosecutorial Misconduct – Anderson’s Testimony

¶38.   Maggett and Stewart complain that the prosecutors allowed Anderson to testify that

he had not gone to Stewart’s house at a certain point, after he supposedly admitted he had

done so when he pled guilty to charges relating to the incident.5 This contention is based on

a purported guilty plea transcript that is not found in the record, and we cannot consider

evidence outside the record. Galloway v. State, 122 So. 3d 614, 638 (¶52) (Miss. 2013).

Consequently we find this claim to be without merit.

¶39.   Stewart also contends, in his pro se brief, that a mistrial should have been granted

after the trial court sustained an objection to a question directed to Anderson on the question

of why he did not come forward sooner. Anderson had testified that it was because he felt

threatened, but on cross-examination he was asked about whether he had an opportunity to


       5
       From the purported transcript, when stating the factual basis, the prosecutor said that
Anderson “possibly” was there. At the murder trial, Anderson testified he was not there, but
Chatman said he was.

                                               17
report everything the next day, which was Anderson’s birthday. Anderson admitted he had

gone out to eat at a restaurant, and a police officer – who was the boyfriend of Stewart’s

sister – had been there. On redirect, the prosecutor asked Anderson whether he knew the

officer had been “fired for being a corrupt police officer.” Anderson answered “no,” but the

trial court sustained a defense objection and admonished the jury not to consider the question

for any purpose whatsoever. The trial court subsequently denied defense motions for a

mistrial.

¶40.    “Whether to grant a motion for a mistrial is within the sound discretion of the trial

court.” Gunn v. State, 56 So. 3d 568, 571 (¶14) (Miss. 2011) (citation omitted). Here, the

subject of the question was collateral. Moreover, “[i]t is presumed that a jury follows the

direction of a trial judge to disregard an improper comment or testimony.” Williams v. State,

971 So. 2d 581, 590 (¶31) (Miss. 2007) (citation omitted). We cannot find any abuse of

discretion in the trial court’s refusal to grant a mistrial.

       11.     Ineffective Assistance of Counsel – Stewart

¶41.   Stewart contends, in his pro se brief, that he received ineffective assistance of counsel

at trial. He points to counsel’s failure to object to certain questions and statements of the

prosecutor, claiming that the prosecutor lacked a good faith factual basis for the questions.

¶42.   Mississippi Rule of Appellate Procedure 22(b) provides that issues such as ineffective

assistance of counsel, which may be raised in post-conviction-relief proceedings, are allowed

on direct appeal only “if such issues are based on facts fully apparent from the record.” The


                                                18
State has not stipulated that the record is sufficient to review this issue on direct appeal. See

Read v. State, 430 So. 2d 832, 841 (Miss. 1983). Given that, and the fact that this claim

depends on facts outside the record, we deny relief on direct appeal without prejudice to a

future post-conviction claim. See Robinson v. State, 25 So. 3d 1084, 1086 (¶11) (Miss. Ct.

App. 2010).

       12.    Ineffective Assistance of Counsel / Judicial Misconduct – Taylor

¶43.   In his pro se brief, Taylor contends that his trial counsel was constitutionally

ineffective for numerous reasons, including failing to investigate his defenses relating to alibi

witnesses and cell phone records. He also points to a bar complaint he apparently filed

against his attorney.

¶44.   Like Stewart’s contentions above, Taylor’s ineffective assistance of counsel claims

are based on evidence outside the record and are best pursued in a motion for post-conviction

relief. We deny relief on this issue without prejudice to a future post-conviction claim.

¶45.   Taylor also alleges that the trial judge violated the Mississippi Code of Judicial

Conduct by failing to act on letters he says he sent to the judge complaining about his trial

counsel. The record reflects that Taylor’s counsel filed a motion to withdraw shortly before

the trial, which the trial court denied. The court did, however, appoint a second attorney to

represent Taylor. The judge then asked Taylor, directly and on the record, whether that

would satisfy him, and Taylor responded that it would.

¶46.   Taylor’s claim of judicial misconduct appears to be a rehashing of his claim of


                                               19
ineffective assistance of counsel, and he has not shown how this alleged judicial misconduct

could amount to reversible error, so we find it without merit.

       13.      Arrest Warrant – Taylor

¶47.   Taylor next challenges the affidavit supporting the warrant for his arrest. He claims

that affidavit is conclusory and not based upon personal knowledge.

¶48.   It is unclear why Taylor believes that this was reversible error, but the issue appears

to have been raised for the first time on appeal and is procedurally barred. Ronk, 172 So. 3d

at 1139 (¶68).

       14.      Arrest Warrant – Chatman

¶49.   Taylor challenges the affidavit supporting the warrant for Chatman’s arrest, as well

as the conduct of Chatman’s interrogation, which he claims was illegal. According to Taylor,

all of the evidence stemming from Chatman’s arrest should have been excluded as “fruit of

the poisonous tree.”

¶50.   This issue is also raised for the first time on appeal and is procedurally barred.

       15.      Prosecutorial Misconduct – Suppression of Evidence

¶51.   Taylor alleges several instances of prosecutorial misconduct. He complains that

prosecutors committed a Brady6 discovery violation by failing to turn over results of a DNA

test conducted on what appeared to be a few small spots of blood found about sixty feet from

McKay’s body, marked “#4”at the scene. Taylor also accuses the prosecutors of placing the


       6
           Brady v. Maryland, 373 U.S. 83 (1963).

                                             20
blood swabs from #4 in a misleading place on the list of discovery, and he alleges some sort

of subterfuge by the introduction into evidence at trial of a photograph of the spots rather

than the blood swabs themselves or DNA test results. Taylor claims that if the blood had

been DNA tested, it would have been shown to have come from the victim and that its

placement was inconsistent with the State’s theory as to how McKay was killed.

¶52.   Taylor further alleges that the State suppressed evidence by refusing to concede the

authenticity of the phone records previously discussed above. He also appears to allege that

the prosecution suppressed evidence by contesting the admissibility of the recordings of

statements given to police by the prosecution witnesses.

¶53.   Taylor’s specific claim that the State failed to turn over DNA test results of the blood

sample is simply unsupported by the record. Otherwise, he seems to concede that the blood

sample was disclosed in discovery; where it appears on the list is of no consequence.

Taylor’s other arguments seem to confuse discovery with the use and admissibility of

evidence at trial.   Discovery is the “compulsory disclosure, at a party’s request, of

information that relates to the litigation.” Black’s Law Dictionary 478 (7th ed. 1999).

Evidence that is discoverable is not necessarily admissible at trial, and a party does not

commit a discovery violation by objecting to the admissibility of something it has previously

disclosed in discovery. We find no merit to these contentions.

       16.    Prosecutorial Misconduct – False Testimony

¶54.   Taylor alleges that the testimony of Anderson and Chatman was false and that the


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prosecutors offered it knowing that it was false – a Napue violation. See Napue v. Illinois,

360 U.S. 264, 269 (1959). Taylor bases this argument on the apparent blood drops discussed

in the prior issue, which he claims conclusively prove that McKay was killed at a different

location from where his body was found, and thus that Anderson and Chatman’s accounts

were untrue.

¶55.   The record reflects that the apparent blood drops were pointed out to the jury and were

argued to be inconsistent with exactly how the prosecution alleged McKay was killed. This

may have been a legitimate argument based on the unexplained presence of a small amount

of what appeared to be blood, but Taylor grossly exaggerates by contending that the blood

drops were definitive and undeniable proof McKay was killed at a different location from

the one alleged. He falls far short of showing that the State knowingly used false evidence

to obtain his convictions. This issue is without merit.

       17.     Prosecutorial Misconduct – Cumulative Effect

¶56.   Taylor argues that he has demonstrated prosecutorial misconduct under his various

prior issues, and that the cumulative effect denied him a fair trial. We have rejected Taylor’s

contentions, and although we have acknowledged a few instances of improper comments by

the prosecutor during this lengthy trial, we do not find their cumulative effect denied Taylor

or the other defendants a fair trial. This issue is without merit.

                                      CONCLUSION

¶57.   After reviewing the record, we find that no reversible error has been shown, and so


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we affirm the convictions and sentences of each of the defendants.

¶58. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY,
SECOND JUDICIAL DISTRICT, FOR EACH APPELLANT, OF CONVICTION OF
CAPITAL MURDER AND SENTENCE OF LIFE WITHOUT THE POSSIBILITY OF
PAROLE; AND POSSESSION OF A FIREARM BY A CONVICTED FELON AND
SENTENCE OF TEN YEARS AND A $5,000 FINE; WITH THE SENTENCES TO BE
SERVED CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

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




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