                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2006-KA-00343-SCT

DANNY JONES

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                           01/24/2006
TRIAL JUDGE:                                HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED:                  JONES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     RICHARD A. REHFELDT
ATTORNEY FOR APPELLEE:                      OFFICE OF ATTORNEY GENERAL
                                            BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                          ANTHONY J. BUCKLEY
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                AFFIRMED - 08/16/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       EASLEY, JUSTICE, FOR THE COURT:

¶1.    Danny Jones (Jones) was indicted by the grand jury of Jones County, Second Judicial

District, for wilfully and feloniously killing Delores Knight (Knight), without authority of

law, with malice aforethought and deliberate design to effect the death of Knight, by shooting

her with a shotgun, in violation of Mississippi Code Annotated Section 97-3-19 (Rev. 2006).

Jones was tried and convicted by a jury for Knight’s murder.

¶2.    The trial court sentenced Jones to serve a term of life in the custody of the Mississippi

Department of Corrections, to complete the 18th District Circuit Court’s Community Service
Program if released before the full sentence is served, and to pay the court costs of $250.50.

Jones filed a post-trial motion for judgment notwithstanding the verdict (J.N.O.V.), or in the

alternative, motion for new trial. The trial court denied said post-trial motions. Jones now

appeals his conviction and sentence to this Court.

                                            FACTS

¶3.    On the evening of January 13, 2001, Knight was shot with buckshot as she walked

from an outdoor utility room back into her mother’s house located in Soso, Jones County,

Mississippi. Knight’s mother, Gloria Knight (Gloria), testified that, while Knight was

outside carrying the trash to the utility room, she heard “a loud sound like a gunshot.” One

pellet hit Knight, piercing several vital organs and rupturing both her aorta and inferior vena

cava. Once inside the house, Knight walked over to a chair, sat down, breathed three breaths,

fell to the floor, and died without uttering a word. Gloria called the sheriff’s office. Deputies

responded to the call and processed the scene.

¶4.    Gloria testified that Jones had been involved in a relationship with Knight for

approximately two years. She stated that Knight had previously lived with Jones, but Knight

had moved in with her sometime in October 2000. Gloria testified that Jones lived about

three or four miles down the road from her house, but his mother lived about five hundred

feet from her house. Gloria described the relationship between her daughter and Jones as

“real troublesome.”

¶5.    Gloria testified that she was aware that Knight had filed misdemeanor charges against

Jones in October 2000. As a result, Knight ended the tumultuous relationship with Jones.

                                               2
She testified that Knight was set to go to court on those charges on January 25, 2001. Gloria

testified that the charges involved Jones beating Knight, creating a family disturbance, and

cutting the phone line.

¶6.    Before Knight was shot and killed, the three misdemeanor charges filed against Jones

in the Jones County Justice Court were as follows: (1) sworn to and filed by Scott Sims on

October 19, 2000, for leaving visible signs of abuse on Knight’s lip, right arm, lower back,

by hitting her with a fist, in violation of Mississippi Code Annotated Section 97-3-7(3) (Rev.

2006); (2) sworn to and filed by Knight on October 18, 2000, for causing willful, unlawful,

and malicious damage to the phone lines outside the residence by cutting the phone lines in

violation of Mississippi Code Annotated Section 97-17-67 (Rev. 2006); and (3) sworn to and

filed by Knight on October 18, 2000, on behalf of her minor son age seventeen, Phillip

Knight, for willfully and unlawfully disturbing the peace by banging on the door of Phillip’s

dwelling and blowing a car’s horn in violation of Mississippi Code Annotated Section 97-35-

11 (Rev. 2006).

¶7.    Jones was found guilty on all three misdemeanor charges in justice court and appealed

the convictions de novo to county court. By the time Jones went to court on January 25,

2001, on the de novo appeal to the county court, Knight was dead. On appeal, the conviction

for domestic violence involving Knight was reversed, but the other two misdemeanors were

affirmed. The State contended that the pending charges against Jones provided a motive to

murder Knight. The State also argued that Knight’s death resulted in the reversal as to the




                                              3
domestic violence conviction received in justice court, since Knight was unavailable to

testify at the de novo proceedings on January 25, 2001.

¶8.    Matt Ishee, investigator for the Jones County Sheriff’s Office, testified that when he

arrived on the scene, Knight was dead, lying on the floor. The lead investigator, Carl Monk,

assigned the case to Investigator Ishee. Investigator Ishee was assigned to process the

evidence such as the bullet holes in the framing of the doorway and in the eave of the house.

Investigator Ishee testified they recovered double-aught buckshot, .32 caliber pellets. He

observed eight shots in the house. He testified, that from his experience with buckshot that

size, a shell would contain nine buckshot.

¶9.    Investigator Ishee discovered shotgun wadding. He “lined up the wadding from where

the entrance was made into the carport area where the buckshot had made entry into the

frame of the house in the doorway and basically walked straight backwards across from the

road and into this brush area across the ditch.”

¶10.   Investigator Ishee discovered three beer cans across the road near some bushes. The

beer cans were a yard or two from each other. Two of the beer cans were lying down, one

was empty and one was full and unopened. The third beer can was standing up and one-half

full. Photographs were taken of the cans, super glue was applied to preserve any prints, and

the cans were bagged. From where the beer can was discovered, there was a clear view of

Knight’s carport.

¶11.   The cans were sent to the crime lab to be analyzed for latent prints. Jamie Bush,

forensic section chief in charge of the latent print section for the Mississippi Crime

                                              4
Laboratory, examined the cans for the presence or absence of latent prints. The prints found

on the half-full can were compared with Jones’s known print exemplars furnished by the

Jones County Sheriff’s department. The prints matched. The State rested.

¶12.   The defense called George Powell, a close friend of Jones, to testify. Powell testified

that on the evening of January 13, 2001, Jones was with him in Waynesboro, Mississippi,

from approximately 6:30 p.m. until the next day. He testified that they rode around together

that evening, drinking. He testified that even though they had several drinks, he could recall

what happened that evening. He testified that they had no particular reason to “party” that

night. Jones just showed up, and they decided to party.

¶13.   On cross-examination by the State, Powell was questioned about whether he

remembered the time that Jones showed up at his house. He stated that he remembered

because he stopped working on cars at his house at the same time every day, sometimes

seven days a week. He testified that the time depended on the work, but he usually stopped

around 5:00 p.m.

¶14.   Powell further testified on cross-examination that his former girlfriend, Fanny Loper,

was living there with him in January 2001, but she was not there when Jones came over

because she was out of town. Powell testified before January 13, 2001, it had been a few

years since he had last seen Jones. He testified that they went to a club called “In the Corn

Field” together that evening, rode around, and drank. When questioned as to who ran the

club, Powell testified that they did not go inside the club. He stated: “I did not go inside. We

were sitting outside drinking.”

                                               5
¶15.   He testified that they sat outside the club from about 8:00 or 9:00 p.m. until 11:00 or

11:30 p.m. They then went back to Powell’s place, and Powell talked Jones into spending

the night because they had been drinking. Powell could not recall what they talked about that

evening. Powell testified that no one saw them together at Powell’s house or at the club who

could place Jones there.

¶16.   O.D. Bruce testified that he had been good friends with Jones for approximately nine

years. Bruce testified that he drank “quite a bit” of beer, and that he had consumed beer with

Jones on many occasions across the road from Jones’s mother’s house near the house where

Knight lived. He testified that it was common to find cans over there. On cross-examination,

Bruce said that he had no knowledge of where the beer cans in this case were discovered.

Bruce testified from his experience drinking beer that he could not recall a tossed, half-full

beer can landing upright.

¶17.   Jones did not testify. The record reflects that Jones was advised that he had a right

to testify or not testify and also that Jones informed the trial court that he did not want his

attorney to submit a “lesser-included” instruction.

¶18.   Sheriff Larry Drake was called as a rebuttal witness. Sheriff Drake, who had been

sheriff for approximately twenty-seven years, testified that they patrolled that area where

Bruce had said that he and Jones frequently sat around and drank beer. He stated that he had

never personally observed anyone sitting out there in that area drinking beer.

                                       DISCUSSION




                                              6
       I.     Whether the trial court erred in allowing the introduction of the
              misdemeanor charges affidavits.

¶19.   Jones filed a pretrial motion in limine to exclude any testimony relating to several

incidents involving Jones which were reported to the Jones County Sheriff Department in

October and November 2000. The trial court conducted a hearing outside the presence of the

potential jury on whether to admit the evidence of these charges. The defense argued that

the evidence was inadmissible as a prior bad act. The prosecutor directed the trial court to

consider this Court’s holding in Simmons v. State, 813 So. 2d 710, 716 (Miss. 2002), arguing

that, as in Simmons, the evidence established motive. The prosecutor stated in pertinent part:

              This man is arrested. He’s charged with these charges. These are
       charges filed by – the domestic violence charge was filed by a deputy sheriff
       in response to a call that she [Knight] brought him out there. She filed the
       other two charges in justice court herself personally.

              Two weeks before this man was set to go to trial on these charges she
       was murdered. That is evidence of motive. It’s admissible to prove that he
       had a motive to kill this woman. The jury doesn’t have to buy that if they
       don’t want to. But just as in the case as the Court discusses in the Simmons
       case here, they said it can be admissible to prove motive, identity, knowledge,
       preparation.

(Emphasis added).

¶20.   The trial court ruled:

              All right. I’m required to make a ruling on this, so I’m going to make
       a ruling that based on what I’ve have heard that the probative value of this
       testimony would be admissible, that the prejudicial effect is not so strong as
       to outweigh the probative value of the testimony.

¶21.   This Court reviews the trial court’s decision to admit or exclude evidence under an

abuse of discretion standard of review. Jones v. State, 904 So. 2d 149, 152 (Miss. 2005).

                                              7
Therefore, the admissibility of evidence rests within the discretion of the trial court, and

reversal will be appropriate only when we find that an abuse of discretion resulting in

prejudice to the accused occurred. Clemens v. State, 732 So. 2d 883, 887 (Miss. 1999). In

Palmer v. State, 939 So. 2d 792, 795 (Miss. 2006), this Court held:

       [W]henever Miss. R. Enid. 404(b) evidence is offered and there is an objection
       which is overruled, the objection shall be deemed an invocation of the right to
       a Miss. R. Enid. 403 balancing analysis. Brown v. State, 890 So. 2d 901, 912
       (Miss. 2004). Rule 403 provides for the exclusion of evidence, even if
       relevant, where the risk of undue prejudice outweighs its probative value.
       Simmons, 813 So. 2d at 716.

¶22.   In Simmons, this Court provided an excellent analysis of when evidence of another

crime or prior bad act is admissible to prove motive. Simmons, 813 So. 2d at 716. The

Court held:

                Usually, evidence of another crime or prior bad act is not admissible.
       Ballenger v. State, 667 So. 2d 1242, 1256 (Miss. 1995). However, this Court
       has held that evidence or proof of a prior crime or bad act is admissible where
       it is necessary to show identity, knowledge, intent, motive or to prove science.
       Wheeler v. State, 536 So. 2d 1347, 1352 (Miss. 1988); Carter v. State, 450 So.
       2d 67 (Miss. 1984); Robinson v. State, 497 So. 2d 440, 442 (Miss. 1986). See
       also M.R.E. 404(b). Evidence of other crimes or bad acts is also admissible
       in order to tell the complete story so as not to confuse the jury. Brown v.
       State, 483 So. 2d 328, 330 (Miss. 1986).

             In the case at bar, evidence of the prior physical altercation between
       Wilkerson and Simmons was not offered to show Simmons's character. The
       evidence was presented as an integral part of the story for the purpose of
       showing intent and establishing motive.

              This Court in Ballenger stated:

              Even where evidence of other crimes is admissible under
              M.R.E. 404(b), it cannot be admitted unless it also passes muster
              under M.R.E. 403.

                                              8
       Ballenger, 667 So. 2d at 1257.

              Upon admitting the evidence under M.R.E. 404(b), the Court must still
       consider the admission of the evidence in connection with M.R.E. 403.
       Stallworth v. State, 797 So. 2d 905, 910 (Miss. 2001); Ballenger, 667 So. 2d
       at 1257. M.R.E. 403 provides for the exclusion of evidence, even if it is
       relevant, where the risk of undue prejudice would outweigh the evidence's
       probative value. See M.R.E. 403.

              In the case at hand, the trial court conducted a hearing outside the
       presence of the jury in order to hear Purvis's testimony regarding the prior
       altercation between Wilkerson and Simmons. The trial court held that the
       evidence of the prior physical altercation was probative as to Simmons's state
       of mind and motive. The trial court further determined that the probative value
       of the evidence outweighed the prejudicial effect of admitting the evidence.

              The prejudicial effect of this testimony did not outweigh its probative
       value. Therefore, the evidence was properly admitted.

Simmons, 813 So. 2d at 716 (emphasis added); see also Palmer, 939 So. 2d at 796 (citation

omitted) (“In the present case it is clear that the trial court admitted the testimony for the

purposes of proving intent, motive and in completing the story of the charged crime.

Therefore, it cannot be said that the trial court abused its discretion in admitting the evidence

[and denying the motion in limine].”).

¶23.   The prosecutor argued to the trial court that the evidence was offered to establish

motive for Knight’s murder. The trial court allowed the evidence as to motive after

concluding that the prejudicial effect of the testimony did not outweigh its probative value.

We find that the record does not demonstrate that the trial court abused its discretion in

admitting the testimony. This issue is without merit.

       II.    Whether the trial court erred in allowing expert testimony as to the
              position of the gunman and the victim.

                                               9
¶24.   At trial, Dr. Steven Hayne, forensic pathologist, was questioned by the State whether

the gunshot wound was a distant gunshot wound or a contact wound and where the shot had

originated. The defense argues on appeal that Jones’s counsel objected to Dr. Hayne’s

testimony. However, the record reveals the contrary, and the trial court was never presented

an objection on which to rule. The following transpired:

       State:        And I guess that you have some [wounds] that are contact
                     wounds and some that are distant?
       Hayne:        Some are near contact. In this case all I was saying is that it’s
                     – the distance from the end of the muzzle to the entrance
                     gunshot wound, the back of the decedent was at least two and a
                     half feet or could be considerably greater than that.
       Defense:      Is it your intention to offer that?
       State:        Yes.
       Defense:      After having conferred with the defendant, we have no
                     objection to the introduction. We will note though, isn’t it
                     marked, Ron, not to scale? Is it marked to scale?
       State:        I will say that this drawing is not to scale for the record.
       Defense:      With that stipulation –
       State:        It’s a correct drawing but it is not drawn to scale.
       State:        Doctor Hayne, could you step down here, please, if it’s all right
                     with the Court?
       Court:        Yes, sir.
       State:        And I’ll let you look at this photograph. By the way, since it’s
                     no objection, Your Honor, I would offer this drawing into
                     evidence at this time.
       Court:        Be marked and received into evidence.
       Defense:      With the stipulation that it’s not to scale.
       State:        Right. It has down on the bottom not to scale.
       Court:        Be marked and received.
       State:        You see something up at the top here, Doctor Hayne, it says
                     front of residence. And then you have an arrow saying carport,
                     and then you have another arrow pointing to a laundry room. As
                     you look down towards the bottom of this picture you see an
                     area across a road which is designated as Highway 533. And
                     then down at the bottom you have an area pointing over here.
                     It says, area where beer cans were found. Now, looking over

                                            10
                      here I ask you to look where these arrows are where it says, area
                      where the beer cans are found, and the laundry room here in the
                      back of the garage. And if you look from where these beer cans
                      were found up here to the laundry room, could you tell me, in
                      your expert opinion, whether or not the gunshot wound to
                      Deloris Knight would be consistent with someone shooting from
                      the area of the beer cans and hitting her while she is in the
                      garage?
       Defense:       May it please the Court, I’m not sure that his area of expertise
                      goes to that. We did stipulate as an expert. I’m not going to
                      object to it. I’m going to go ahead and let him answer.
       Court:         All right. You may answer.
       Hayne:          If the decedent were facing in this direction towards the carport,
                      the angle would be approximately 20 degrees coming up and it
                      would be consistent with having [been] struck by a buckshot
                      fired in this area coming up at 20 degrees facing towards the
                      carport.

(Emphasis added).

¶25.   Based on the record, the defense did not object to Dr. Hayne’s testimony, stating “let

him answer.” Therefore, the trial court did not have a contemporaneous objection by Jones

to consider. "'[I]f no contemporaneous objection is made, the error, if any, is waived.'"

Walker v. State, 671 So. 2d 581, 597 (Miss. 1995) (quoting Foster v. State, 639 So. 2d 1263,

1270 (Miss. 1994)); see also Rubenstein v. State, 941 So. 2d 735, 751 (Miss. 2006).

“Failure to make a contemporaneous objection waives an issue for purposes of appeal.”

Spicer v. State, 921 So. 2d 292, 305 (Miss. 2006) (citing Williams v. State, 684 So. 2d 1179,

1203 (Miss. 1996)).

¶26.   Accordingly, Jones’s failure to object at trial waived this claim of error on appeal.

       III.   Whether the trial court should have removed the district attorney.



                                              11
¶27.   In a pretrial motion, Jones’s counsel informed the trial court that his client asked him

to argue that since the current district attorney, Anthony Buckley, was previously a public

defender at the time Jones was appointed a public defender, Buckley should be removed from

the case. Jones’s counsel said that the order appointing Jones a public defender in justice

court did not specify Buckley as Jones’s attorney. Further, Jones’s counsel informed the trial

court that, “it is my understanding on information and belief that Mr. Buckley had no

conversation whatsoever with my client.”

¶28.   Buckley stated to the trial court:

               There are four independent public defenders, all part-time. Although
       it’s called office of the public defender, it’s not like a true office where one
       recusal recuses all the other three. And since I’m not on this document, there
       was three others, and I’m not specifically named, and because I never met with
       Mr. Jones, I never counseled with him, I never offered advice, I never received
       information from law enforcement of any kind in regards to this case, then
       under the conflict statute I would have no conflict. I have received no
       information from this case that I can use for the State’s advantage today.

               This is merely a procedure where often at justice court we just
       automatically appoint a public defender for initial appearance. And as you
       know, Mr. Jones hired himself a private attorney. Not Mr. McKenzie at the
       time, I believe a Ms. Perkins, and never met with any public defender, Your
       Honor. . . .

¶29.   The trial court inquired as to whether the public defender, in fact, did not normally

have any contact with defendants in justice court. Buckley said that the public defenders had

no contact with defendants until appointed by the circuit court as the defendants were called

up for arraignment. The trial court found no conflict because there was no contact. The trial




                                              12
court further found that Jones never did or said anything to the public defender or any public

defender that would rise to the level of any prejudice against him.

¶30.     Correctly applying holdings of this Court, the Court of Appeals recently addressed

this issue, stating:

                It is well settled that "a prosecuting attorney is disqualified from acting
         in a criminal case if he has previously represented or been consulted
         professionally by the accused with respect to the offense charged." Gray v.
         State, 469 So. 2d 1252, 1254 (Miss. 1985). "The subsequent prosecution of
         a criminal defendant by an attorney who has previously gained confidential
         information from the accused relative to the charges against him is inherently
         incompatible with the right of a criminal defendant to receive a fair trial." Id.
         However, no purpose would be served by applying the proscriptive rule to
         bar a prosecuting attorney's participation in a criminal case where the
         evidence fails to establish that the attorney, by reason of his professional
         relations with the accused, gained any confidential information regarding
         the matter involved in the criminal prosecution. Each case must therefore be
         examined on its facts in order to determine the nature of the attorney's prior
         relationship with the accused and the substance of any communications
         between the attorney and the accused. Id. at 1255 (citing Dunn v. State, 264
         So. 2d 823 (Miss. 1972); Russell v. State, 185 Miss. 464, 189 So. 90 (1939)).

                The question to be determined, then, is whether the trial court was
         clearly erroneous in its finding that no confidential information was
         transmitted . . .

Vandergriff v. State, 920 So. 2d 486, 492-493 (Miss. Ct. App. 2006) (emphasis added).

¶31.     We find that the trial court did not err in finding that no conflict existed to merit the

removal of the district attorney, Buckley, from this case. This assignment of error is without

merit.

         IV.    Whether the jury was properly instructed on circumstantial
                evidence.



                                                13
¶32.   Jones argues on appeal that he was denied a circumstantial evidence instruction in his

case. The record contradicts that assertion. Jones’s counsel offered and was granted jury

instruction D-1, which provided:

       The law presumes every person charged with the commission of a crime to be
       innocent. This presumption places upon the State the burden of proving the
       Defendant guilty beyond a reasonable doubt and to the exclusion of every
       reasonable hypothesis. This presumption of innocence attends the Defendant
       throughout the trial and prevails at its close unless overcome by evidence
       which satisfies the jury of his guilt beyond a reasonable doubt and to the
       exclusion of every reasonable hypothesis. The Defendant is not required to
       prove his innocence.

(Emphasis added).

¶33.   "In determining whether error exists in granting or refusing jury instructions, the

instructions must be read as a whole; if the instructions fairly announce the law and create

no injustice, no reversible error will be found." Martin v. State, 854 So. 2d 1004, 1009

(Miss. 2003).

¶34.   In Wilson v. State, 936 So. 2d 357, 365 (Miss. 2006), this Court held:

       [T]wo - theory instructions should only be given in cases based entirely on
       circumstantial evidence. State v. Rogers, 847 So. 2d 858, 863 (Miss. 2003).
       We have defined circumstantial evidence as that which, without going directly
       to prove the existence of a fact, gives rise to a logical inference that such a fact
       exists. Id. A circumstantial evidence case is one in which there is neither
       eyewitness testimony nor a confession to the crime. Id.

¶35.   “With respect to jury instructions involving the issue of circumstantial evidence,

‘[where] all the evidence tending to prove the guilt of the defendant is circumstantial, the trial

court must grant a jury instruction that every reasonable hypothesis other than that of guilt



                                               14
must be excluded in order to convict.’" Rubenstein, 941 So. 2d at 785 (quoting Givens v.

State, 618 So. 2d 1313, 1318 (Miss. 1993)) (emphasis added).

¶36.   The jury was instructed that Jones was presumed innocent, and every reasonable

hypothesis other than that of guilt must be excluded in order to find Jones guilty. There is

no error "if all instructions taken as a whole fairly, but not necessarily perfectly, announce

the applicable rules of law. . . ." Scott v. State, 878 So. 2d 933, 966 (Miss. 2004) (citing

Milano v. State, 790 So. 2d 179, 184 (Miss. 2001)); see also Rubenstein, 941 So. 2d at 785.

¶37.   Since Jones was given a circumstantial evidence instruction, we find that this

assignment of error is without merit.

       V.     Whether Jones’s counsel was ineffective.

¶38.   On appeal, Jones’s appellate counsel raised two assignments of error, that trial counsel

was ineffective: (1) for not requesting a circumstantial jury instruction, and (2) for not

requesting a limiting instruction on the prior bad acts.

¶39.   As discussed in Issue IV, the jury was instructed that Jones was presumed innocent

and every reasonable hypothesis other than that of guilt must be excluded in order to find

Jones guilty. As this Court found no error in Issue IV, trial counsel was not ineffective. This

assignment of error is without merit.

¶40.   Jones also argues on appeal that trial counsel should have requested a limiting

instruction as to Jones’s prior bad acts. The alleged prior bad acts were discussed in Issue

I in the context of the motion in limine. This Court has acknowledged that in many



                                              15
instances, defense counsel may elect to request or not request a limiting instruction. Brown

v. State, 890 So. 2d 901, 913 (Miss. 2004). In Brown, the Court held:

               In many instances a limiting instruction from the bench can actually
       focus a jury's attention on the sensitive testimony. Because a defendant
       might be prejudiced by such an instruction, we allowed trial counsel to
       actually object to the sua sponte instruction. See Robinson v. State, 735 So.
       2d 208, 210 (Miss. 1999). However, it is not per se prejudicial to a defendant
       if a jury simply hears an isolated instance of a crime or bad act in the course
       of a trial.

              The burden should properly be upon the trial counsel to request a
       limiting instruction.

Brown, 890 So. 2d at 913. (Emphasis added).

¶41.   This Court has stated the standard for review on ineffective assistance of counsel,

following the standard provided in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984) and Stringer v. State, 454 So. 2d 468 (Miss. 1984). Puckett v. State,

879 So. 2d 920, 935-936 (Miss. 2004). The Court held:

               "The benchmark for judging any claim of ineffectiveness [of counsel]
       must be whether counsel's conduct so undermined the proper functioning of
       the adversarial process that the trial cannot be relied on as having produced a
       just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052,
       80 L. Ed. 2d 674 (1984). A defendant must demonstrate that his counsel's
       performance was deficient and that the deficiency prejudiced the defense of the
       case. Id. at 687, 466 U.S. 668, 104 S. Ct. 2052. "Unless a defendant makes
       both showings, it cannot be said that the conviction or death sentence resulted
       from a breakdown in the adversary process that renders the result unreliable."
       Stringer v. State, 454 So. 2d 468, 477 (Miss. 1984) (citing Strickland v.
       Washington, 466 U.S. at 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674). The focus
       of the inquiry must be whether counsel's assistance was reasonable considering
       all the circumstances. Id.

               Judicial scrutiny of counsel's performance must be highly deferential.
       (citation omitted) . . . A fair assessment of attorney performance requires that

                                             16
      every effort be made to eliminate the distorting effects of hindsight, to
      reconstruct the circumstances of counsel's challenged conduct, and to evaluate
      the conduct from counsel's perspective at the time. Because of the difficulties
      inherent in making the evaluation, a court must indulge a strong presumption
      that counsel's conduct falls within the wide range of reasonable professional
      assistance; that is, the defendant must overcome the presumption that, under
      the circumstances, the challenged action “might be considered sound trial
      strategy.” Stringer, 454 So. 2d at 477 (citing Strickland, 466 U.S. at 689, 104
      S. Ct. 2052). Defense counsel is presumed competent. Id.

              Then, to determine the second prong of prejudice to the defense, the
      standard is "a reasonable probability that, but for counsel's unprofessional
      errors, the result of the proceeding would have been different." Mohr v. State,
      584 So. 2d 426, 430 (Miss. 1991). This means a "probability sufficient to
      undermine the confidence in the outcome." Id. The question here is:

                    [W]hether there is a reasonable probability that, absent
             the errors, the sentencer--including an appellate court, to the
             extent it independently reweighs the evidence--would have
             concluded that the balance of the aggravating and mitigating
             circumstances did not warrant death. Strickland, 466 U.S. at
             695, 104 S. Ct. at 2068.

                    There is no constitutional right then to errorless counsel.
             Cabello v. State, 524 So. 2d 313, 315 (Miss. 1988); Mohr v.
             State, 584 So. 2d 426, 430 (Miss. 1991) (right to effective
             counsel does not entitle defendant to have an attorney who
             makes no mistakes at trial; defendant just has right to have
             competent counsel). If the post-conviction application fails on
             either of the Strickland prongs, the proceedings end. Neal v.
             State, 525 So. 2d 1279, 1281 (Miss. 1987); Mohr v. State, 584
             So. 2d 426 (Miss. 1991).

      Davis v. State, 743 So. 2d 326, 333-34 (Miss. 1999) (citing Foster v. State,
      687 So. 2d 1124, 1130 (Miss. 1996)). Brown v. State, 798 So. 2d 481, 493-94
      (Miss. 2001).

Puckett, 879 So. 2d at 935-36.




                                            17
¶42.   “When claiming ineffective assistance of trial counsel because of jury instructions,

‘it is the duty of the appellant to demonstrate both error in failing to receive the instruction

and the prejudice to the defense.’" Havard v. State, 928 So. 2d 771, 789 (Miss. 2006)

(quoting Burnside v. State, 882 So. 2d 212, 216 (Miss. 2004)). The Court went on to state

that trial “counsel is given broad discretion to plan a trial strategy and to carry it out.”

Havard, 928 So. 2d at 790. The Court further held:

       "When evaluating the overall performance of counsel, counsel must make
       strategic discretionary decisions including whether or not to file certain
       motions, call certain witnesses, ask certain questions or make certain
       objections." Branch, 882 So. 2d at 52 (citation omitted). Such decisions do
       not necessarily equate to ineffective assistance simply because counsel was not
       successful at trial. These trial decisions by counsel did not decidedly result in
       performance deficient under Strickland, but even if they did, the inquiry does
       not end there. "Once a deficient performance is shown, a 'defendant must
       show that there is a reasonable probability that, but for counsel's
       unprofessional errors, the result of the proceeding would have been different.
       A reasonable probability is a probability sufficient to undermine confidence
       in the outcome.'" Woodward, 635 So. 2d at 808 (quoting Strickland, 466 U.S.
       at 694).

Havard, 928 So. 2d at 790.

¶43.   Here, the defense filed a motion in limine to exclude the alleged prior bad acts from

the jury. However, the defense did not seek an instruction stating that the testimony

regarding the charges in justice court was to be considered by the jury solely to establish

Jones’s motive for murdering Knight. Arguably, trial counsel chose not to place this

sensitive evidence, which was allowed by the trial court to establish motive for the murder,

before the jury in an instruction to be focused on in the jury deliberations. While the defense

could have sought an instruction and would have been entitled to one if sought, the case law

                                              18
examined above is clear that the decision rests with counsel, and trial counsel is provided

broad discretion in decisions related to trial strategy.

¶44.   We find that this assignment of error does not merit reversal.

       VI.    Whether the State’s closing argument was improper.

¶45.    This Court reviews the propriety of closing arguments giving deference to the trial

court’s ruling, because the trial court is in the best position to determine if an alleged

improper comment had a prejudicial effect; therefore, absent an abuse of that discretion, the

trial court's ruling will stand. Stevens v. State, 806 So. 2d 1031, 1057 (Miss. 2001) (citing

Roundtree v. State, 568 So. 2d 1173, 1178 (Miss. 1990)). "[A]ttorneys are allowed wide

latitude in their arguments 'limiting them not only to facts, but also to deductions and

conclusions which may be drawn therefrom, and to the application of the law to those facts.'"

Stevens, 806 So. 2d at 1057 (quoting Holly v. State, 716 So. 2d 979, 988 (Miss. 1998)).

¶46.   On appeal, this Court must consider "whether the natural and probable effect of the

improper argument of the prosecuting attorney [created] an unjust prejudice against the

accused as to result in a decision influenced by the prejudice so created." Wells v. State,

698 So. 2d 497, 507 (Miss. 1997); see also Caston v. State, 823 So. 2d 473, 495 (Miss.

2002) ("The standard of review that appellate courts must apply to lawyer misconduct

during opening statements or closing arguments is whether the natural and probable effect

of the improper argument is to create unjust prejudice against the accused so as to result

in a decision influenced by the prejudice so created.") (quoting Sheppard v. State, 777 So.

2d 659, 661 (Miss. 2000)).

                                             19
¶47.   In Wells, this Court addressed the "golden rule." Id. at 506. “A golden rule

argument asks the jurors to put themselves in the place of one of the parties.” Stevens,

806 So. 2d at 1057. The Court, in Wells, 698 So. 2d at 507, did not find that any prejudice

resulted to the defendant, stating:

       In light of the overwhelming evidence against Wells, the jury's verdict
       likely was not influenced by any prejudice that might have resulted from
       the district attorney's isolated "golden rule" argument.

(Emphasis added).

¶48.   Jones takes issue with remarks made by the prosecutor in the closing argument, the

first in the beginning of the close:

       You know, you have to use your common sense. If you leave that at home,
       you can let every slim killer in Jones County walk out of the courtroom.
       Who will speak for Dolores [Delores] Knight?

The trial court did not issue a ruling as to the defense’s objection. Instead, seeking a

ruling from the trial court during the argument, the defense asked the trial court to take up

the objection outside the presence of the jury. The prosecutor made the following

comment in the State’s final closing argument:

       I don’t know – my grandfather didn’t live over a jail. He was a farmer out
       at Calhoun. I don’t know about all of that mess. I’m just a red-neck out of
       the west side of the county, and happened to be a lawyer. That is all I know.
       I just try to use my common sense. Okay? You know if you take the
       Hattiesburg judges or the Hattiesburg whatever, the only thing I have a
       problem with, I never did this when I represented people who was accused
       of all kinds of minor, heinous stuff. I never had the nerve to come up here
       and tell somebody that I was proud to represent them and I knew they were
       [not] guilty, and it was my privilege to do it. You know, he is representing
       him just like every other lawyer does, because he’s paid him to do it.


                                             20
The defense objected, and the trial court reprimanded the prosecutor “to go by the facts

of the case, and take your personal opinions out of it . . . or I’m going to declare a mistrial

. . . the next time that comes out.” The defense also reserved the right to object outside the

jury’s presence. Once the closing argument concluded, the trial court again strongly

reprimanded the prosecutor for his comment, but denied the request for a mistrial.

¶49.   In his assignment of error, Jones fails to mention that the prosecutor’s remarks in

the final closing were made in response to the defense’s statements in its closing

argument. In the defense’s closing argument, Jones’s counsel argued:

               Mr. Parrish [prosecutor] tried his best. Let me say right now, I failed
       to mentioned (sic) this thought. I am thankful for the civil manner in which
       Mr. Parrish has conducted this trial because a lot of times, that doesn’t
       happen. A lot of times the prosecutor is so vigorous and is so demeaning
       to the opposite side, they just want to get in there and they want to badger
       the Defendant and they want to badger the lawyer. That did not happen, and
       I want to thank J. Ronald for that. . . .

               I want you to remember all those things. I want you to remember
       that the alibi testimony is un-refuted. You know, our place in this life, a lot
       of times, has to do with our heritage. And I told you in addressing you that
       I supported law enforcement and Mr. Parrish objected to that. I told [you]
       that at a later time I would tell you why.

               Well, the reason why is that I have had family members in law
       enforcement. My grandfather was a deputy sheriff and constable. And in
       fact, we used to kid my daddy because he was in jail at one point in time,
       because they literally lived over the jail. But, my other grandfather, like
       Danny Jones [defendant], was a God-fearing master carpenter. He could
       build just about anything. But had a a (sic) great hobby and it was a hobby
       of playing Dominoes. And because he was a master carpenter, he made me
       a set of Dominoes that I was stupid enough to let get lost throughout the
       years. . . .




                                              21
              I had said when I went back into the practice of law, that I would
       never represent anyone who had done something to – . . .

               [State objected to the personal opinions offered by the defense. The
       trial court overruled the objection]

       I obviously would not have done so in this case. If I thought that Danny
       Jones murdered anyone, I wouldn’t be here today. . . .

              [State objected. The trial court overruled the objection.]

       I am here to tell you that it did not happen.

(Emphasis added).

¶50.   The prosecutor’s remarks were invective and out-of-line. However, the defense’s

statements invited the prosecutor’s response. The defense’s statements were an attack on

the prosecutor, personally, in front of the jury. The defense’s statements also asked the

jury to put themselves in the defense attorney’s place, to share a common heritage with

the witnesses, and to accept that he would never as an attorney represent a guilty person.

Both the prosecutor and the defense crossed the line in the closing arguments. Clearly,

the attorneys resorted to improper behavior.

¶51.   But under the limited situation of this case, the prosecutor’s remarks were

sufficiently insignificant in the overall context of the case before us that any error was

harmless. Further, the jury heard the trial court admonish and reprimand the prosecutor

for his comment and threaten to declare a mistrial if the prosecutor continued to make such

remarks. In considering whether a mistrial was warranted, this Court defers to the trial

court’s determination of whether the defendant suffered any prejudicial effect. Sipp v.


                                            22
State, 936 So. 2d 326, 331 (Miss. 2006) (“The trial court must declare a mistrial when

there is an error in the proceedings resulting in substantial and irreparable prejudice to the

defendant's case; however, the trial judge is permitted considerable discretion in

determining whether a mistrial is warranted since the judge is best positioned for

measuring the prejudicial effect.”); Gossett v. State, 660 So. 2d 1285, 1290-91 (Miss.

1995); Roundtree v. State, 568 So. 2d 1173, 1178 (Miss. 1990)).

¶52.   In Monk v. State, 532 So. 2d 592, 601 (Miss. 1988), this Court stated:

       The right of argument contemplates liberal freedom of speech and range of
       discussion confined only to bounds of logic and reason; and if counsel's
       argument is within the limits of proper debate it is immaterial whether it is
       sound or unsound, or whether he employs wit, invective, and illustration
       therein. Moreover, figurative speech is legitimate if there is evidence on
       which it may be founded. Exaggerated statements and hasty observations
       are often made in the heat of debate, which, although not legitimate, are
       generally disregarded by the court, because in its opinion they are
       harmless.

(Emphasis added).

¶53.   While error occurred, we find that the error was harmless, as it resulted in no

prejudice to Jones, and it does not merit reversal.

       VII.   Whether the verdict was contrary to the weight of the evidence.

¶54.   A motion for new trial challenges the weight of the evidence. Sheffield v. State,

749 So. 2d 123, 127 (Miss. 1999). A reversal is warranted only if the trial court abused

its discretion in denying a motion for new trial. Id. In Bush v. State, 895 So. 2d 836, 844

(Miss. 2005), this Court set out the standard of review for weight of the evidence as

follows:

                                             23
       When reviewing a denial of a motion for a new trial based on an objection
       to the weight of the evidence, we 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. Herring v. State, 691 So. 2d
       948, 957 (Miss. 1997). We have stated that on a motion for new trial, the
       court sits as a thirteenth juror. The motion, however, is addressed to the
       discretion of the court, which should be exercised with caution, and the
       power to grant a new trial should be invoked only in exceptional cases in
       which the evidence preponderates heavily against the verdict. Amiker v.
       Drugs For Less, Inc., 796 So. 2d 942, 947 (Miss. 2000). However, the
       evidence should be weighed in the light most favorable to the verdict.
       Herring, 691 So. 2d at 957. A reversal on the grounds that the verdict was
       against the overwhelming weight of the evidence, “unlike a reversal based
       on insufficient evidence, does not mean that acquittal was the only proper
       verdict.” McQueen v. State, 423 So. 2d 800, 803 (Miss. 1982). Rather, as
       the “thirteenth juror,” the court simply disagrees with the jury's resolution
       of the conflicting testimony. Id. This difference of opinion does not signify
       acquittal any more than a disagreement among the jurors themselves. Id.
       Instead, the proper remedy is to grant a new trial.

¶55.   Without re-discussing the testimony already related within this opinion, the jury

heard the testimony from all the State’s witnesses, including the defense’s cross-

examination of those witnesses, and from the defense’s witnesses, including the State’s

cross-examination of those witnesses. Here, no new trial is warranted, as the jury’s verdict

is consistent with the weight of the evidence. We find that the evidence, weighed in the

light most favorable to the verdict, supports the jury's resolution of the conflicting

testimony.

¶56.   Accordingly, we find that the trial court did not err in denying Jones’s motion for

a new trial. This assignment of error is without merit.

                                     CONCLUSION



                                            24
¶57.   For the foregoing reasons, the judgment of the Circuit Court of the Second Judicial

District of Jones County, Mississippi, is affirmed.

¶58. C O N V IC T IO N OF M U R D ER AND SEN TE N C E O F LIF E
IMPRISONMENT, WITH CONDITIONS, IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

     SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON, RANDOLPH AND
LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. DIAZ, P.J.,
DISSENTS WITH SEPARATE WRITTEN OPINION.


       DIAZ, PRESIDING JUSTICE, DISSENTING:

¶59.   The only evidence tying Danny Jones to the death of Deloris Knight was

fingerprints on a beer can found across the street from her house. Because the evidence

in this case is so wholly insufficient to support a murder conviction, I must respectfully

dissent.

¶60.   Although the majority only briefly addresses the weight of the evidence, Jones also

argues on appeal that the evidence was legally insufficient to support a conviction. Jones

moved for a directed verdict at the close of the state’s case-in-chief and also moved post-

trial for a judgment notwithstanding the verdict. Both motions challenge the sufficiency

of the evidence, and this is not the first time a defendant has erroneously combined the

weight and sufficiency arguments on appeal. See Bush v. State, 895 So. 2d 836, 843

(Miss. 2005); Foster v. State, 919 So. 2d 12, 15 (Miss. 2005).

¶61.   In determining whether the evidence is sufficient to sustain a conviction, we look

at the evidence in the light most favorable to the state. Bush, 895 So. 2d at 843. Our


                                            25
inquiry focuses on whether this evidence shows “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.” Id. (quoting Carr v. State, 208 So. 2d 889, 889

(Miss. 1968)). If the facts and inferences “point in favor of the defendant on any element

of the offense with sufficient force that reasonable men could not have found beyond a

reasonable doubt that the defendant was guilty,” the appropriate remedy is to reverse and

render. Id. (quoting Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985)).

¶62.   At best, the state proved that Jones may have consumed beer in the same place from

which the shooter killed Knight. The state offered no proof that Jones was sitting in that

spot when Knight was killed. The state never introduced a murder weapon, and there was

no evidence that Jones owned or had access to the type of gun used to kill Knight.

¶63.   I also question the dubious expert testimony offered to prove that the shots were

fired from the area where the beer cans were found. The investigating officer was

prohibited from testifying that someone could shoot from the location of the cans into the

garage. However, Dr. Hayne testified that in his expert opinion, he could tell the bullet

was coming from a 20 degree angle where the cans were found. First, Dr. Hayne is at best

a forensic pathologist, not an expert in ballistics. The state made no effort to qualify him

as an expert in ballistics. Second, even if he were a ballistics expert, his testimony is

based on the direction the victim was facing. As no one witnessed the shooting, and

Knight died after walking inside the house, there is no evidence of the position of her

                                            26
body when she was shot. Accordingly, the state failed to establish a foundation for this

testimony, and it should be excluded as improper and irrelevant.1

¶64.   Finally, it is impossible to ignore the extreme delay between Jones’s arraignment

and his trial. Jones was arraigned on September 20, 2001, but was not tried until January

23, 2006. Jones filed a motion to dismiss based on his right to a speedy trial on September

26, 2002, three-hundred and seventy-one days after his arraignment. No trial date had

been set in more than one hundred days past the statutory deadline. Miss. Code Ann. §

99-17-1 (Rev. 2000) (“Unless good cause be shown, and a continuance duly granted by

the court, all offenses for which indictments are presented to the court shall be tried no

later than two hundred seventy (270) days after the accused has been arraigned.”). It is

impossible to reconcile this discrepancy with our constitutional and statutory provisions

regarding speedy trials. See Guice v. State, 952 So.2d 129, 143-51 (Miss. 2007) (Diaz,

J., dissenting).

¶65.   In conclusion, it cannot be said that the state presented sufficient evidence to

support a murder conviction, and I would reverse.




       1
        This is not the first time Dr. Hayne has offered questionable testimony outside his
area of expertise. Recently, in Edmonds v. State, 955 So. 2d 787, 792-93 (Miss. 2007), this
Court reversed a conviction in part because Dr. Hayne was allowed to testify that he could
tell two people were holding the gun used to kill the victim. Interestingly, in Edmonds, Dr.
Hayne testified that in his twenty-five-year career, he had performed 25,000 to 30,000
autopsies. Id. at 802 (Diaz, P.J., specially concurring). In the the present trial, which was
conducted only a year and a half after Edmonds, Dr. Hayne testified that he had been
practicing for thirty-five years and had performed 35,000 autopsies.

                                            27
