                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2011-KA-01809-SCT

CHARLES ERVIN a/k/a CHARLES D. ERVIN a/k/a
MICHAEL ERVIN a/k/a CHARLES DARNELL
ERVIN

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         09/09/2011
TRIAL JUDGE:                              HON. JEFF WEILL, SR.
TRIAL COURT ATTORNEYS:                    LESLIE R. BROWN
                                          SHANNON COGHLAN
COURT FROM WHICH APPEALED:                HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                          BY: JUSTIN TAYLOR COOK
                                              GEORGE T. HOLMES
ATTORNEYS FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                          BY: LAURA HOGAN TEDDER
                                              JOHN R. HENRY, JR.
DISTRICT ATTORNEY:                        ROBERT SHULER SMITH
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              REVERSED AND REMANDED - 04/24/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       KING, JUSTICE, FOR THE COURT:

¶1.    A jury convicted Charles Ervin (“Charles”), a convicted felon, of armed robbery and

felon in possession of a handgun following the armed robbery of the Healthy Body Store.

Police were able to identify Charles as a suspect after his brother, also a convicted felon,
pointed the police in Charles’s direction. At trial, the trial court gave a flight instruction over

the objection of the defendant. The jury found Charles guilty, and the trial court sentenced

him and included a gun enhancement in the sentencing. This appeal followed. Because the

trial court improperly limited the defense’s cross-examination of a key State witness, this

Court reverses Charles’s convictions and remands the case to the trial court for a new trial.

                                             FACTS

¶2.    On September 2, 2010, the Healthy Body Store on the corner of Northside Drive and

Livingston Road was robbed at gunpoint. The store manager, Martha Duffy, was the only

person working at the store at the time. A man walked past the store, then walked back to

the store and entered it. He asked for a product, then walked up and down the store aisles.

He then made his way back up to the front of the store, pointed a gun at Duffy, and

demanded money. After she gave him money, he made a few more demands, ordered Duffy

under the desk, and departed. As soon as he left the store, Duffy called 911. She described

the robber as wearing black shorts, a black shirt, and a baseball cap, and described the gun

as a dark-colored handgun. The police arrived quickly and canvassed the area.

¶3.    Canvassing the area led the police to a house on Brinkley Drive, close to the store,

where they spoke with Linda Stapleton. Stapleton told police that a man fitting the

description of the robber had come to the door and asked for “Gary” and that she informed

the man that “Gary” was not there. The conversation with Stapleton led police to a house on

Douglas Avenue, also close by.1



       1
      Officer Mitchell, who spoke with Stapleton, testified that Stapleton told him that the
man who came to her door was “Ray Ray,” and that she gave Officer Mitchell the address

                                                2
¶4.    At the house on Douglas Avenue, police encountered Michael Ervin (“Michael”), also

known as Ray Ray. When police arrived at his house, Michael was wearing black shorts and

was putting on a red shirt. Michael was not sweating, nor was he out of breath. He informed

the police that he had been at home all day. He also informed them that his brother Charles

had been at the house on Douglas Avenue approximately thirty minutes prior to the officers’

arrival.2 The police eventually took Michael to the police station for further investigation.3

During the police interview of Michael at the police station, he allegedly stated that Charles

also goes by the name Ray Ray.4 He also repeated that he had seen Charles at the Douglas

Avenue house approximately thirty minutes prior to the arrival of the police.

¶5.    Martha Duffy was also taken to the police station immediately after the robbery.

While there, Duffy picked Charles’s photograph out of a photo lineup. After she picked

Charles’s photograph out of the lineup, the police placed Michael in a room with secured

mirror glass, and asked Duffy if Michael was the man who robbed her. She indicated that

Michael was not the man who robbed her. On September 24, 2010, more than three weeks




at which Ray Ray lived on Douglas Avenue. Former Detective Stevenson likewise testified
that Stapleton informed him that Ray Ray came to her door. “Ray Ray” is an alias of Michael
Ervin, the defendant’s brother. However, when Linda Stapleton testified, she testified that
Charles Ervin, Ray Ray’s brother, was the man who knocked on her door, and that she was
sure it was not Ray Ray, or Michael Ervin, because she had been in a romantic relationship
with Michael approximately twenty years prior.
       2
        Michael apparently lived at the Douglas Avenue house with his father. Charles lived
in an apartment with his girlfriend and their daughter.
       3
       The police also performed a consent search of the house on Douglas Avenue and
recovered two revolvers.
       4
           At trial, Michael testified that one of Charles’s nicknames was “Little Ray Ray.”

                                               3
after the robbery occurred, federal marshals arrived at Charles’s apartment and arrested him.

When they arrived, Charles went into the attic, from which there was no exit. The record

contains no evidence that Charles knew of the charges for which he was being arrested. On

September 26, 2010, Charles allegedly went to the hospital while in custody, where he

allegedly escaped from the security guard assigned to guard him.

                               PROCEDURAL HISTORY

¶6.    On February 2, 2011, the State indicted Charles for armed robbery, including that he

used or displayed a firearm during the commission of the armed robbery, and for being a

felon in possession of a firearm. Trial was set for summer of 2011. On June 3, 2011, the

State obtained a second indictment against Charles, this one for escape, based on his alleged

September 26, 2010, escape from custody at a hospital. Then, on July 27, 2011, the State

obtained a third indictment against Charles for the same circumstances. This indictment was

a three-count indictment and included the armed-robbery charge, the felon-in-possession-of-

a-firearm charge, and the escape charge. The three-count indictment was assigned to a

different judge than were the first two indictments. The State then elected to pursue the

armed-robbery and felon-in-possession charges under the original indictment, instead of the

three-count indictment.

¶7.    Among the State’s witnesses at trial was Richard Stevenson, the former detective who

had interviewed Michael at the police station. The defendant attempted to cross-examine

Stevenson on the personal information that Michael had given him, based on an NCIC 5



       5
        “NCIC” stands for the Federal Bureau of Investigation’s National Crime Information
Center, a computerized index of criminal history information.

                                             4
printout and a witness location form filled out by Stevenson. Specifically, the defendant was

attempting to show that Michael had used multiple different social security numbers and

birthdates, including Charles’s. The theory of the defense was essentially that Michael

committed the robbery and then attempted to pin it on Charles. Through Stevenson, the

witness location form, and the “all over the map” NCIC report that Stevenson received on

Michael, the defendant wanted to show that Michael was “known to give false information.

He’s used his alias three different times” and that “the accuracy of this detective’s

investigation is an issue.” The State objected to this line of questioning, and the court

sustained the objections, stating that it did not see the relevance of the line of questioning.

At one of the two bench conferences on the issue, the following occurred:

               Q: What – what do you show for Michael Ervin’s date of birth?
               BY MS. COGHLAN: Again, Your Honor, same – same objection.
               BY MS. BROWN: I think – I think when you see – when I ask the next
       question, you’ll understand.
               BY THE COURT: Well, before we get there, I’ll have to sustain that.
       Michael Ervin is not on trial and I just – I don’t see it’s relevant.
               BY MS. BROWN: Judge, the accuracy of this detective’s investigation
       is an issue.
               BY THE COURT: Y’all approach.
       (BENCH CONFERENCE AS FOLLOWS:)
               BY MS. BROWN: He has supplied two different birthdays and two
       different social security numbers in forms that he completed for witness
       location folders on Michael Ervin.
               BY MR. KESLER: Your Honor, that’s – (inaudible)
               BY MS. BROWN: Okay.
               BY THE COURT: All right. So you’re withdrawing the question?
               BY MS. BROWN: No. I’m accepting the Court’s rulings.
               BY THE COURT: All right. I’ll sustain it.

¶8.    At trial, the State sought to introduce evidence of Charles’s alleged September 26,

2010, escape from a hospital while in custody, as evidence of a guilty conscience. The State



                                              5
attempted to introduce such evidence through the testimony of Wade Pickens, the security

officer from whose custody Charles allegedly escaped. The defendant vociferously objected

to this testimony on several grounds, the testimony was proffered, and the court overruled

the defendant’s objection. Among the many reasons for the objection given were that the

State elected not to proceed with the escape charge in the current trial and was surprising the

defendant with the introduction of evidence of escape in the trial for armed robbery and felon

in possession of a firearm, with defense counsel stating “But in this circumstance, they

elected not to proceed with the escape. I feel like I’m being sandbagged. I feel like this

information is being put before the jury solely to prejudice the jury.” (Emphasis added.)

However, Wade Pickens then testified that the prisoner whom he was assigned to guard that

day was not in the courtroom, thus failing to identify Charles. Accordingly, no evidence of

Charles’s alleged September 26, 2010, escape from custody was presented at trial.

¶9.    Melissa “Minnie” Sulton, Charles’s girlfriend, testified for the defense, giving an alibi

for Charles. On cross-examination, the State elicited testimony from Sulton that Charles

went to the attic when the marshals came to arrest him. Sulton testified that she had no

knowledge of what the charges were against Charles at that time. There was no testimony

that Charles knew of the charges against him at that time.

¶10.   Both sides rested, and then presented jury instructions. The State presented S-6,

which was a flight instruction.6 The defendant objected based on the fact that the flight

       6
           The flight instruction stated that:

       “Flight” is a circumstance from which guilty knowledge and fear may be
       inferred. If you believe from the evidence in this case beyond a reasonable
       doubt that the defendant, CHARLES ERVIN, did flee or go into hiding, such

                                                 6
witness (from the September 26 flight) had failed to identify the defendant. The State

countered that Sulton gave evidence of Charles hiding in the attic on September 24, and the

court decided to give the instruction.

¶11.   On August 10, 2011, the jury found Charles guilty of armed robbery and being a felon

in possession of a firearm. The court sentenced Charles to twenty-five years for the armed

robbery, with ten years for the gun enhancement, to run consecutively, and then to ten years

for the felon-in-possession-of-a-firearm charge, to run concurrently with the other sentence.

Charles filed a motion for judgment notwithstanding the verdict (JNOV), or in the

alternative, for a new trial, which the trial court denied. This appealed followed.

¶12.   On appeal, Charles argues that: 1) the trial court erred in granting the flight

instruction; 2) the sentences for both the gun enhancement and the felon-in-possession charge

violate double jeopardy; 3) the trial court erred by preventing Charles from cross-examining

Stevenson, thus depriving him of presenting his theory of defense; and 4) this Court should

abolish the use of flight instructions in Mississippi. We find the issue of whether the trial

court erred by limiting cross-examination dispositive.

                                         ANALYSIS

Whether the trial court erred by limiting the defense’s cross-examination of Stevenson,
thus harming the theory of the defense.




       flight or hiding is to be considered in connection with all other evidence in this
       case. You will determine from all facts whether such flight or hiding was from
       a conscious sense of guilt or whether it was caused by other things and give it
       such weight as you think it is entitled to in determining the guilt or innocence
       of the defendant.


                                               7
¶13.   Limitations placed on cross-examination are reviewed using an abuse-of-discretion

standard. Jefferson v. State, 818 So. 2d 1099, 1109 (Miss. 2002).

¶14.   During cross-examination of former-Detective Stevenson, the trial court refused to

allow the defense to use an NCIC report and a witness location form to examine Stevenson

about the fact that Michael had given Stevenson various social security numbers and

birthdays for himself, some of which belonged to Charles, not Michael. The defense

attempted to attack the credibility of Stevenson’s investigation, in that he did not further

investigate Michael when he knew Michael gave false aliases.

¶15.   The State first argues that this issue is procedurally barred, because it was waived, as

the State claims that “defense counsel stated that she accepted the Court’s rulings, and she

did not preserve an objection to the ruling.” This argument is without merit. Defense

counsel attempted several times to question Stevenson on this issue. The State objected each

time. After much argument, the Court sustained the first round of the State’s objections to

the defense’s questions. After much argument during the second round of objections, the

trial court asked defense counsel if she withdrew the question. She stated “No. I’m

accepting the Court’s rulings.” (Emphasis added.) This indicates that she was simply done

arguing, and she affirmatively stated that she was not withdrawing her questions. The trial

court clearly understood this to be her meaning, as the court responded “All right. I’ll sustain

it.” (“It” being the State’s objection to the defense’s line of questioning). The trial court

would have no reason to sustain the State’s objection if defense counsel had withdrawn the

question. Charles in no way waived this issue; it appears that defense counsel simply

understood that the Court did not accept her arguments and thus indicated she would stop

                                               8
debating the issue.

¶16.   The State then argues that this issue is without merit because the NCIC report was not

admissible and because the exclusion did not prejudice Charles because he aptly presented

his theory of defense. It also argues that “the witness had already testified that he had no

record or recollection that Michael Ervin had used Charles Ervin’s identity and social

security number on two occasions.” 7

¶17.   Mississippi Rule of Evidence 612 allows a witness to use documents to refresh his

memory while testifying. Miss. R. Evid. 612. A document used to refresh a witness’s

recollection need not be admissible under the Mississippi Rules of Evidence. Hunt v. State,

687 So. 2d 1154, 1162 (Miss. 1996). “The only requirement is that the witness have no

present memory of the event.” Id. When defense counsel asked Stevenson “Do you have

a recollection of that?” 8 he responded “No.” Thus, the State’s argument that the defense

could not use these documents to refresh Stevenson’s memory on cross-examination because

they were not admissible is without merit.

¶18.   The trial court sustained the State’s objections to this line of questioning because it

determined it was irrelevant. Relevant means “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable

       7
        Stevenson did testify that he could not remember Michael using Charles’s
information. His lack of recollection is precisely why the defense attempted to use the NCIC
report and the witness location form, so that his recollection could be refreshed. The defense
stated: “If I gave you some documents, could you refer to them and refresh your
recollection?”
       8
       “That” refers to the defense’s prior question: “It’s a fact that as you were going
through this investigation you determined at some point that Michael Ervin had used Charles
Ervin’s identity and social security number on at least two occasions, isn’t it?”

                                              9
or less probable than it would be without the evidence.” Miss. R. Evid. 401. Charles’s

theory of the defense was that Michael committed the burglary and then pinned it on Charles.

Michael’s use of Charles’s identity when dealing with police is relevant to that issue.

¶19.   However, this Court “will not reverse the trial court’s evidentiary ruling unless the

error adversely affects a substantial right of a party.” Newell v. State, 49 So. 3d 66, 73 (Miss.

2010). Charles’s theory of the case was that his brother committed the armed robbery and

then pointed police to Charles. The State argued that Charles aptly presented his theory of

the defense because he questioned witnesses about the fact that “Ray Ray” was identified as

the robber, and Michael was “Ray Ray.” Such questioning is not the same as evidence that

Michael gave police Charles’s social security number and birthday as his own. Such

evidence could have affected the jury’s understanding about Michael lying to the police and

pointing the police to Charles. See id. Charles was precluded from putting on such evidence,

and evidence that Ray Ray was identified is not of the same vein. “The exclusion of the

evidence prevented [Charles] from fully presenting his theory of the case to the jury and thus

adversely affected his right to a fair trial.” Id. We therefore reverse Charles’s convictions

on this basis.9




       9
        Because we reverse Charles’s convictions, we need not determine whether the gun
enhancement to the armed-robbery charge combined with the felon-in-possession-of-a-
firearm conviction violates double jeopardy. However, we note that sentencing
enhancements do not typically implicate double jeopardy. See, e.g., Witte v. United States,
515 U.S. 389, 115 S. Ct. 2199, 132 L. Ed. 2d 351 (1995) (considering behavior surrounding
the circumstances of a crime to enhance the sentence for that crime does not constitute
“punishment” for double jeopardy purposes); Mayers v. State, 42 So. 3d 33 (Miss. Ct. App.
2010).

                                               10
¶20.   We need not decide the issue of whether the flight instruction was error;10 however,

because the issue may arise on remand, we note the questionable wisdom of granting it.

“[T]he use of the flight instruction in this state can be described in one word – ‘dangerous.’”

Randolph v. State, 852 So. 2d 547, 567 (Miss. 2002) (Carlson, J., specially concurring,

joined by Smith, P.J., Waller, and Cobb, JJ.). “[A] trial court, by giving a flight instruction,

simply puts itself in a position of possibly placing a reversible error in an otherwise clean

record. If a trial court persists in giving a flight instruction, . . . it [should] do so with great

caution.” Id. “[W]ith the prosecutors having been duly warned on multiple occasions about

the danger of submitting flight instructions, there can be no legitimate hue and cry from the

State in the future if this Court . . . reverses a criminal conviction based on the trial court’s

improper grant of a flight instruction, which had been improvidently submitted by the

prosecutor.” States v. State, 88 So. 3d 749, 759 (Miss. 2012) (Carlson, P.J., Specially

Concurring).

¶21.   This Court has adopted a two-pronged test to determine whether a flight instruction

is appropriately given to a jury. States, 88 So. 3d at 758. First, “[o]nly unexplained flight

merits a flight instruction.” Id. Second, “flight instructions are to be given only in cases

where that circumstance has considerable probative value.” Id. (emphasis added).

¶22.   In this case, the “hiding” at the time of arrest occurred more than three weeks after the




       10
         The separate opinion suggests that we find the flight instruction improper or in error
in this case. We make no such explicit finding. Rather, we merely point the trial court to
our recent caselaw regarding the limited circumstances under which a flight instructions
should be given, so that it may consider such when deciding to grant a flight instruction,
should the issue arise on remand.

                                                11
armed robbery; no evidence exists that Charles knew for what charges law enforcement

officers came to arrest him; and Charles “fled” to or “hid” in his own attic, which had no exit,

for a few moments while his girlfriend informed law-enforcement officials of his

whereabouts.11

¶23.   We question whether evidence of flight in this case, where the defendant hid in his

own attic (with no exit) from law-enforcement agents during an arrest for a crime that

occurred three weeks prior, while the “escapee” had no knowledge of the crime for which

he was being arrested, is remotely probative of guilt, much less considerably probative of

guilt. Courts should examine the facts of each specific case when considering a flight

instruction; however, the longer the time period between the crime and the flight, the more

arduously a court should scrutinize its probative value. See United States v. Myers, 550 F.2d

1036, 1051 (5th Cir. 1977) (“The more remote in time the alleged flight is from the

commission or accusation of an offense, the greater the likelihood that it resulted from

something other than feelings of guilt concerning that offense.”).

                                       CONCLUSION

¶24.   The improper limitation on cross-examination adversely affected Charles’s right to

a fair trial and warrants reversal. Thus, this Court reverses Charles’s convictions and

sentence and remands the case to the trial court for a new trial consistent with this opinion.




       11
         Defining “flight” often presents a conundrum. See Pannell v. State, 455 So. 2d 785,
790 (Miss. 1984) (Robertson, J., specially concurring) (there exist many “problems with
flight evidence and instructions, not the least of which is the practical question ‘what is
flight?’”); Randolph v. State, 852 So. 2d 547, 567 (Miss. 2002) (Carlson, J., specially
concurring) (“The term ‘unexplained flight’ is somewhat nebulous, anyway[.]”).

                                              12
¶25.   REVERSED AND REMANDED.

       WALLER, C.J., DICKERSON, P.J., LAMAR, KITCHENS AND CHANDLER,
JJ., CONCUR. RANDOLPH, P.J., AND COLEMAN, J., CONCUR IN PART AND IN
RESULT WITHOUT SEPARATE WRITTEN OPINION. PIERCE, J., CONCURS IN
PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED
BY RANDOLPH, P.J.

       PIERCE, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶26.   I agree with the majority that the limitation on cross-examination denied Charles

Ervin a fair trial and warrants reversal. Respectfully, however, I find no problem that a flight

instruction was granted in this case. Therefore, I concur in part and dissent in part.

¶27.   Mississippi has long recognized that “an accused’s flight, escape from custody,

resistence to arrest, concealment, assumption of a false name, and related conduct, are

admissible as evidence of consciousness of guilt, and thus guilt itself.” McClendon v. State,

387 So. 2d 112, 115 (Miss. 1980). As noted by the majority, in deciding whether to grant

a flight instruction, the trial court must take into account two considerations: (1) only

unexplained flight merits a flight instruction, and (2) flight instructions are to be given only

in cases where that circumstance has considerable probative value. The two-pronged test

must also be met in order to introduce flight evidence. Austin v. State, 784 So. 2d 186, 194

(Miss. 2001) (citing Fuselier v. State, 702 So. 2d 388, 390 (Miss. 1997)). This means that

Mississippi, unlike some jurisdictions, does not distinguish between the admissibility of

flight evidence and the propriety of instructing the jury on the law of flight. Cf. U.S. v.

Martinez, 681 F.2d 1248, 1257 (10th Cir. 1982) (“Trial courts usually focus not upon the

admissibility of flight evidence but upon the propriety of including a jury instruction

highlighting already admitted flight evidence.”); but see United States v. Register, 496 F.2d

                                              13
1072, 1077 (5th Cir. 1974), cert. denied sub nom. Cochran v. U. S., 419 U.S. 1120, 95 S.Ct.

802, 42 L. Ed. 2d 819 (1975) (holding that, because the jury was given a proper flight

instruction, the federal district court did not err in allowing testimony from a teenage girl

babysitting defendant’s child in defendant’s apartment, in which the girl told the jury that,

after defendant was informed of drug raid, defendant failed to return to his apartment; the

Court of Appeals found the flight evidence was admissible even though the drug raid was

conducted by state officials on a different charge).

¶28.   Here, both prongs were met.

¶29.   The fact that Charles “ran up” to the attic when federal marshals arrived at the

apartment where Charles was staying to arrest him, entered Charles’s armed-robbery trial

during the State’s cross-examination of his alibi witness, Melissa Sulton, Charles’s girlfriend

at the time. Sulton maintained throughout cross-examination that she did not know why the

marshals were looking for Charles. Sulton also admitted that she knew authorities were

looking for Charles prior to the marshals’ arrival because she had received a phone call from

the mother of one of Charles’s other children that “the feds” were looking for Charles.

¶30.   That no direct evidence was presented showing that Charles had any knowledge of

the crime for which he was arrested, is of no matter.            See, e.g., United States v.

Hernandez-Miranda, 601 F.2d 1104, 1106 (9th Cir. 1979) (holding that, while “other

reasons might support [defendant’s] decision to take flight, . . . this in itself does not make

a flight instruction improper) (emphasis added). What Mississippi law requires is that there

be no showing of a reasonable explanation otherwise. As we related in Austin, the common

factor in cases where “‘explanations’ were [found] substantial enough so that a flight

                                              14
instruction was not proper[,] . . . is that, in those circumstances, it would have been illogical

for a defendant not to have run.” See Austin, 784 So. 2d at 195 (noting, for example,

circumstances where defendant was an escapee, or driving a stolen car, or leaving the scene

of the alleged crime based on threats from another person or from potential danger from the

victim). That conclusion cannot be reached here except by conjecture. Thus, the first prong

was conclusively established.

¶31.   The flight evidence also was considerably probative under the circumstances of this

case. First, Charles’s alibi defense, which laid the foundation of the flight evidence,

enhanced the probative value of the evidence. Sulton testified that Charles was with her the

day of the alleged robbery because he had picked her up from work early that afternoon. The

two were together the rest of the day, according to Sulton. Approximately three weeks later,

when Sulton received a phone call from the individual mentioned above informing her that

authorities were looking for Charles, Sulton did not inquire why because–reflecting back–she

knew Charles was incapable of committing armed robbery. From Sulton’s testimony relating

Charles’s actions prior to his arrest, coupled with the rest of her testimony, the jury

reasonably could infer that Sulton was not credible and knew Charles was a suspect in the

crime in question, and that Charles was not with Sulton when the robbery occurred.

¶32.   Second, the most probative circumstance is that regarding Charles’s brother, Michael,

who, according to the defense’s theory of the case, was the one who committed the robbery.

On the day of the alleged robbery, Michael was taken in for questioning by Officer Adelbert

Moore, the responding officer to the Healthy Body Store. Moore testified that Michael was

never a suspect in the alleged robbery because Michael did not fit the description given by


                                               15
the victim, Martha Duffy. Again, Duffy identified Charles form a photo lineup as the person

who had robbed her. And after she observed Michael sitting in the interview room through

a two-way mirror, Duffy expressly excluded Michael as the suspect. During questioning, and

later, at trial, Michael said Charles had stopped by Michael’s residence about thirty minutes

before the police had arrived at the house. The house is located near the Healthy Body Store.

Michael described the clothes Charles was wearing, which matched the descriptions given

by both Duffy and Linda Stapleton. Again, Stapleton, who also lived near the Healthy Body

Store, and who knows both Michael and Charles, said Charles was the person who knocked

on her door, looking for “Gary.”

¶33.   Based on this testimony, any time-lapse concern with the three-week period between

the alleged robbery and Charles’s apprehension is quashed. One can infer reasonably from

the circumstances surrounding Michael’s cooperation with authorities juxtaposed with

Charles’s response, that Charles knew that authorities were looking for him in connection

with the alleged robbery and fled and hid due to consciousness of guilt for the crime.

¶34.   The flight instruction given by the trial court in this case stated:

       “Flight” is a circumstance from which guilty knowledge and fear may be
       inferred. If you believe from the evidence in this case beyond a reasonable
       doubt that the defendant, Charles Ervin, did flee or go into hiding, such flight
       or hiding is to be considered in connection with all other evidence in this case.
       You will determine from all facts whether such flight or hiding was from a
       conscious sense of guilt or whether it was caused by other things and give it
       such weight as you think it is entitled to in determining the guilt or innocence
       of the defendant.

¶35.   This is a proper instruction, as approved by this Court in Ransom v. State, 149 Miss.

262, 115 So. 208, 210 (1928) (overruled on other grounds). And I find no error with the trial



                                              16
court’s decision to grant it in this instance.

       RANDOLPH, P.J., JOINS THIS OPINION.




                                                 17
