                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 2000-KA-00484-SCT
ERIC BRANDON DRAKE
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                                  03/02/2000
TRIAL JUDGE:                                       HON. GEORGE B. READY
COURT FROM WHICH APPEALED:                         DESOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                            JACK R. JONES, III
ATTORNEYS FOR APPELLEE:                            OFFICE OF THE ATTORNEY GENERAL
                                                   BY: BILLY L. GORE
DISTRICT ATTORNEY:                                 ANN LAMAR
NATURE OF THE CASE:                                CRIMINAL - FELONY
DISPOSITION:                                       AFFIRMED - 10/04/2001
MOTION FOR REHEARING FILED:                        10/15/2001; denied 12/6/2001
MANDATE ISSUED:                                    12/14/2001

     BEFORE McRAE, P.J., SMITH AND MILLS, JJ.

     MILLS, JUSTICE, FOR THE COURT:

¶1. Eric Brandon Drake was convicted of capital murder and conspiracy in the Circuit Court of DeSoto
County for the murder of Jacky Harwell. He was sentenced to life imprisonment for capital murder and five
years for the conspiracy conviction to be served concurrently with the life sentence. He timely perfected this
appeal.

                                                  FACTS

¶2. Officer Omar Elkouz of the DeSoto County Sheriff's Department was on routine patrol in the early
morning hours of February 6, 1999, when he found a man's body lying in the road. The body was lying face
down on the pavement. The man's pants were around his ankles, and he was wearing no socks or shoes.
The body was later identified as that of Jacky Harwell. He had died from a contact gunshot wound to the
left side of the head. A shell casing was found at the scene approximately five feet from the body.

¶3. No identification was found on the body; however, a letter found at the scene was addressed to Jacky
Harwell. Andrew Perpener, Harwell's cousin, reported Harwell missing on February 8th. He later identified
the body as Harwell's.

¶4. The investigation led to the home of nineteen-year-old Eric Brandon Drake, who had telephoned
Harwell's pager the night of the shooting. Drake originally told the investigators a bogus story that he and
Harwell had been victims of an attempted robbery. He agreed to accompany the officers to the scene of the
alleged robbery. He voluntarily entered the police van and rode unrestrained in the front passenger seat.
While directing the officers to the location of the alleged robbery, Drake admitted that he knew where
Harwell's automobile was located. The officers asked if he could take them to the location. He answered
affirmatively and took the officers to the car which was located near his house. Officer Alan Thompson
advised Drake of his Miranda rights at this point. Drake signed a form acknowledging that he understood
his rights and was willing to talk freely and voluntarily to the police officers. He waived his right to an
attorney for this interview. At this point Drake confessed to the officers that he and the two robbers,
Manrese Long and Zachary Harrington, conspired to lure Harwell to the lake and rob him. Manrese Long
lived with Drake. Harrington brought the gun to the scene. The gun belonged to Harrington's stepfather.
Drake confessed to the officers that he took the gun from Harrington and shot Harwell.

¶5. According to Drake, he had met Harwell within the previous month. A few days prior to the shooting,
Harwell had given Drake $20 to look at his penis. Drake called Harwell's pager on the evening of February
5; Harwell telephoned him; and the two agreed to meet at a church parking lot near Drake's residence.
They met at the church. Drake got into Harwell's car, and Harwell drove to a nearby lake. Harwell parked
the car and began making advances toward Drake. Harwell's pants were down when Harrington and Long
walked up to the car and demanded money. Harrington and Long got into the car, and the three took
Harwell at gunpoint to an isolated area. Drake took the gun from Harrington and shot Harwell in the head.
The men took over $300 from Harwell. After the shooting, they divided the money.

¶6. After Drake's confession, the officers took Drake to his house to speak with his mother, Martha Drake.
Officer Thompson testified as follows:

When we got inside, I told his mother, Mrs. Martha, I said, "Mrs. Drake, he's been involved in this
homicide." And she looked at the father and they looked at Brandon, and she shouted to him and said, "Tell
me you're not involved. Tell me you didn't have anything to do with it." Or "Tell me you didn't shoot him," I
think that's the exact words she said. And he said - she was just shaking and trembling, and he said,
"Mama, I shot him."

¶7. Drake was taken to the station house in Memphis, Mississippi, where Officer Thompson again read him
his Miranda rights. Drake then gave a statement to Thompson which conflicted with his previous story. In
the recorded and transcribed interview, Drake alleged that the shooting was an accident. Drake contended
that he was a victim, not a participant in the robbery. He stated that the gun discharged as he tried to grab it
from Harrington. He offered the same testimony at trial.

¶8. The jury found Drake guilty of conspiracy to commit robbery with a deadly weapon and capital murder.
The State did not pursue the death penalty. The judge sentenced Drake to five years for conspiracy to run
concurrently with life imprisonment for capital murder.

                                               DISCUSSION

      I. WHETHER THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS DRAKE'S
      STATEMENT TO THE LAW OFFICERS.

¶9. Drake contends that his incriminating statements to law enforcement officers should have been
suppressed for lack of timely advice required by Miranda v. Arizona, 384 U.S. 436, 477-78, 86 S.Ct.
1602, 1629-30, 16 L.Ed.2d 694, 725-26 (1966). The State argues that Drake did not make any
inculpatory or incriminating statements during custodial interrogation until after he had been given his
Miranda warnings at the location of Harwell's car. According to the State, every response until that point
had been gratuitous, voluntary, and exculpatory regarding the telephone call and Drake's involvement as a
victim as opposed to a perpetrator.

¶10. When the trial court overrules a motion to suppress a defendant's confession, this Court will reverse
that ruling only if it is manifest error or contrary to the overwhelming weight of the evidence. O'Halloran v.
State, 731 So. 2d 565, 570 (Miss. 1999). "The voluntariness of a waiver, or of a confession, is a factual
inquiry that must be determined by the trial judge from the totality of the circumstances." Id.

¶11. In overruling Drake's motion to suppress, the trial judge stated the following:

      I haven't heard anything to make me believe or feel like under the case law that the statement should
      be suppressed. I'm going to deny the motion. I think it's clearly an investigation, a preliminary
      investigation. The officers had the right to ask questions. He wasn't under arrest. He was taken-he
      voluntarily got in the van.

      ***

      I don't see anything that indicates that the police officers are lying. All [Drake] did was give directions
      after that, but even at that point, I think they're entitled to see if he could actually take them to the car.
      They might have just been seeing if he could take them to the car. They had no confirmation that he
      could take them to the car until they got to the car. They confirmed it was the victim's car, and then at
      that point, they gave him the Miranda [warnings].

¶12. "The threshold question in a Miranda rights analysis is whether the defendant was in custody and
being interrogated when the statement in question was made. Neither general on the scene questioning, nor
voluntary statements made by a defendant are enough to trigger the requirements of Miranda." Miller v.
State, 740 So. 2d 858, 867 (Miss. 1999) (citations omitted). In Hunt v. State, 687 So. 2d 1154, 1160
(Miss. 1996), this Court stated:

      The test for whether a person is in custody is whether a reasonable person would feel that she was in
      custody. That is, whether a reasonable person would feel that she was going to jail-and not just being
      temporarily detained.... Whether a reasonable person would feel that she was "in custody" depends
      on the totality of the circumstances. Factors to consider include: (a) the place of interrogation; (b) the
      time of interrogation; (c) the people present; (d) the amount of force or physical restraint used by the
      officers; (e) the length and form of the questions; (f) whether the defendant comes to the authorities
      voluntarily; and (g) what the defendant is told about the situation.

(citations omitted).

¶13. The record reflects under the totality of the circumstances that Drake's conversations with the officers
occurred prior to his being in custody. The places of interrogation were Drake's home and the police van,
where Drake was an unrestrained, voluntary passenger. Both are non-custodial environments. The time of
interrogation was mid-morning.

¶14. The officers arrived at Drake's residence in Memphis, Mississippi, at 10:30 a.m. Drake's Miranda
rights were read to him approximately an hour later. During this one-hour period, Drake agreed to show the
officers where the robbery took place and where the victim's car was located. Only three to five minutes
elapsed between the time Drake voluntarily entered the police van and the victim's car was found. The
persons present during the interrogation were Drake's mother, father, and sister and Officers Doss and
Thompson.

¶15. Later, in the van, only the officers were present with Drake. Neither officer was in uniform. No force
or physical restraint was used during this period. Drake occupied the front passenger seat of the police van,
a Ford Aerostar. The doors were unlocked. The questions were short and propounded for the purpose of
clarifying Drake's role as a robbery victim. Drake's assistance to the officers was voluntary according to the
trial court's findings. Further, Drake was told nothing that would make him believe he was in police custody
during this investigatory interrogation. Thompson told Drake that a call to Harwell's pager had originated at
the Drake residence.

¶16. After Drake told the officers that he and Harwell were victims of the robbery, Thompson asked Drake
if he could take the officers to the scene. En route, Officer Doss asked Drake why he had not reported the
robbery to law enforcement. Drake gave another story which did not exactly coincide with his first version.
Thompson confronted Drake with the conflicts and asked if he knew where the car was located and if he
could take them to the location. Drake nodded affirmatively to both questions. After confirming the maroon
Lexus was registered to Harwell, the officers gave Drake his Miranda warnings.

¶17. Drake argues that he was a suspect from the beginning and should not have been interrogated without
Miranda warnings. Officer Doss, however, testified that he was not prepared to base an arrest merely
upon Drake's statements concerning the telephone call to Harwell's pager and some conflicting statements
concerning Drake's role as a victim in the robbery. The officers were attempting to resolve an ambiguous
situation. The mere possibility of incrimination does not mean that a custodial interrogation occurred in
violation of Miranda. Greenlee v. State, 725 So. 2d 816, 825 (Miss. 1998).

¶18. The record does not reflect that the officers' questions were asked for the purpose of eliciting an
incriminating statement from Drake. Miranda warnings were not a prerequisite to the admissibility of
Drake's statements. We find no merit to this assignment of error.

     II. WHETHER DRAKE WAS DENIED HIS RIGHT TO A SPEEDY TRIAL.

¶19. Drake contends that the trial court erred in failing to dismiss this case for speedy-trial and 270-day-
rule violations. Drake was arrested on February 13, 1999, and indicted on March 23, 1999. His attorney
signed a waiver of arraignment and entered a not-guilty plea on behalf of his client on April 6, 1999. The
trial began approximately 328 days later on February 28, 2000.

¶20. Miss. Code Ann. § 99-17-1 (2000) states as follows:

     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.

¶21. An order of continuance was entered in this case on September 14, 1999, setting trial for February
28, 2000. The order was entered "upon the motion of the parties for a continuance" and was agreed to and
signed by both Susan Brewer, Assistant District Attorney, and Jack Jones, III, Drake's attorney.

¶22. Trial began approximately 167 days after the order of continuance was entered. Deducting 167 days
from 328 days results in 161 days. Thus, after deduction of the time which lapsed due to the agreed
continuance, Drake was tried well within the 270-day time frame. See Herring v. State, 691 So. 2d 948,
953-55 (Miss. 1997). We find no merit to this assignment of error.

      III. WHETHER THE TRIAL COURT ERRED IN REFUSING TO ALLOW DRAKE TO
      EXERCISE TWO OF HIS PEREMPTORY CHALLENGES OF WHITE MALE JURORS.

¶23. Drake exercised eleven peremptory challenges during the jury selection process. The targets of all but
one of these were white male veniremen. The State voiced a Batson objection, and the trial court restored
to the jury two of the veniremen, #27 and #40, after declining to accept Drake's race/gender-neutral reason
for striking them. Drake's reason for his strikes against #27 and #40 was that the veniremen "looked hard."

¶24. Drake contends that the trial court erred in requiring him to offer race/gender-neutral reasons for his
strikes because the State failed to make a prima facie showing of purposeful discrimination and failed to
show a pattern of strikes based upon race or gender. Though the record does not reflect the precise racial
and gender makeup of the jury, it is clear that three black jurors served.

¶25. A party's peremptory challenge must pass constitutional muster. Batson v. Kentucky, 476 U.S. 79,
106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348,
120 L.Ed.2d 33 (1992), the United States Supreme Court extended Batson protection to include strikes
exercised by criminal defendants, and in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 141, 114 S.Ct.
1419, 128 L.Ed.2d 89 (1994), the Court applied Batson to strikes based on gender.

¶26. "The decisive question is whether the opponent of the strike has met the burden of showing that the
proponent has engaged in a pattern of strikes based on race or gender, or in other words 'the totality of the
relevant facts gives rise to an inference of discriminatory purpose.'" Henley v. State, 729 So. 2d 232, 239
(Miss. 1998) (quoting Batson, 476 U.S. at 94). Thus, in the case sub judice, only after the State presents a
prima facie showing of a Batson violation does the burden shift to the defendant to present a race-neutral
explanation for challenging the jurors. Mack v. State, 650 So. 2d 1289, 1297 (Miss. 1994).

¶27. Ten of the eleven peremptory strikes used by Drake were exercised against white male veniremen.
Certainly this fact exhibits a pattern against white males. Such a circumstance creates an inference of
purposeful discrimination. In Batson, the Supreme Court stated:

      In deciding whether the defendant has made the requisite showing, the trial court should consider all
      relevant circumstances. For example, a "pattern" of strikes against black jurors included in the
      particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions
      and statements during voir dire examination and in exercising his challenges may support or refute an
      inference of discriminatory purpose. These examples are merely illustrative. We have confidence that
      trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning
      the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against
      black jurors.

Batson, 476 U.S. at 96-97, 106 S.Ct. at 1723. In the case sub judice the facts and all relevant
circumstances are sufficient to raise an inference of purposeful discrimination. As the trial court noted,
Drake's attorney "struck an entire class. . . ." The State made its prima facie case.

¶28. Further, the race/gender-neutral reason offered by Drake in rebuttal to the State's challenge is
insufficient. Drake asserts that the two veniremen "[l]ooked kind of hard." Drake does not explain his
meaning, leaving the reason to appear pretextual. We find no merit to this assignment of error.

      IV. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING
      INTO EVIDENCE THREE PHOTOGRAPHS OF THE BODY OF THE DECEASED.

¶29. Drake argues that the trial court erred in allowing into evidence three photographs depicting Harwell's
body. Exhibit 1 depicts Harwell's lifeless body lying in a small pool of blood at the edge of the highway in
the position in which it was found at the scene of the crime. Exhibit 5 is a pre-autopsy photograph depicting
the contact wound in front of the victim's left ear canal. Exhibit 6 is a pre-autopsy photograph depicting
several superficial abrasions on the victim's nose and forehead. Drake asserts that the photographs have no
probative value since the fact that Harwell was deceased and had been killed by a gunshot was undisputed.

¶30. "The admissibility of photographs generally lies within the sound discretion of the trial court; and,
absent an abuse of discretion, the court's decision will be upheld on appeal." Jackson v. State, 784 So. 2d
180, 183 (Miss. 2001). "A review of our case law indicates that the discretion of the trial judge runs toward
almost unlimited admissibility regardless of the gruesomeness, repetitiveness, and the extenuation of
probative value." Williams v. State, 544 So. 2d 782, 785 (Miss. 1987).

¶31. The only case in which this Court has reversed based on the admission of gruesome photographs is
McNeal v. State, 551 So. 2d 151 (Miss. 1989). The photographs at issue in McNeal depicted a "full-
color, close-up view of the [victim's] decomposed, maggot-infested skull." Id. at 159. This Court found the
admission of these photographs violative of M.R.E. 403. The photographs in the case sub judice do not rise
to this level of gruesomeness. Id.

¶32. Further, the photographs had probative value. The photographs revealed the position and location of
Harwell's body on the edge of the highway, the peculiar arrangement of his clothing, the location of the
contact bullet wound, and the nature of the trauma to his face and forehead. In light of the broad standard
of admissibility permitted under this issue, we find that the trial court did not err in allowing the photographs
into evidence. There is no merit to this assignment of error.

      V. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF
      THE EVIDENCE AND WAS SUPPORTED BY SUFFICIENT EVIDENCE.

¶33. Drake attacks the verdict by questioning both the sufficiency and weight of the evidence which resulted
in his convictions of capital murder and conspiracy. He complains that there were no eyewitnesses to the
crime and that the statements relied upon by the State were taken under suspicious circumstances. He
argues that the trial court erred in denying his motions for a directed verdict, peremptory instructions,
JNOV or, in the alternative, a new trial.

¶34. This Court has stated the standard of review for sufficiency of the evidence as follows:

      Our concern here is whether the evidence in the record is sufficient to sustain a finding adverse to [the
      defendant] on each element of the offense of murder. In the present context we must, with respect to
      each element of the offense, consider all of the evidence-not just the evidence which supports the case
      for the prosecution-in the light most favorable to the verdict. The credible evidence which is consistent
      with the guilt must be accepted as true. The prosecution must be given the benefit of all favorable
      inferences that may reasonably be drawn from the evidence. Matters regarding the weight and
      credibility to be accorded the evidence are to be resolved by the jury. We may reverse only where,
      with respect to one or more of the elements of the offense charged, the evidence so considered is
      such that reasonable and fair-minded jurors could only find the accused not guilty.

Collier v. State, 711 So. 2d 458, 461 (Miss. 1998) (quoting Wetz v. State, 503 So. 2d 803, 808 (Miss.
1987)) (citations omitted). If the evidence is found to be legally insufficient, then the defendant must be
discharged. May v. State, 460 So. 2d 778, 781 (Miss. 1985).

¶35. The standard of review for determining whether a jury verdict is against the overwhelming weight of the
evidence is as follows:

      In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court
      must accept as true the evidence which supports the verdict and will reverse only when convinced that
      the circuit court has abused its discretion in failing to grant a new trial. Only in those cases where the
      verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would
      sanction an unconscionable injustice will this Court disturb it on appeal.

Collier, 711 So. 2d at 461 (quoting Pleasant v. State, 701 So. 2d 799, 802 (Miss. 1997)) (citations
omitted). If the verdict is against the overwhelming weight of the evidence, then a new trial is proper.
Collier, 711 So. 2d at 461.

¶36. Throughout the course of the investigation, Drake offered a number of different versions of his story.
He initially denied any knowledge of Harwell. Then he admitted being at the scene of the crime, but only as
a victim, not as a perpetrator. Drake subsequently admitted to Officers Thompson and Doss that he knew
where Harwell's car was located. After directing the officers to the car and after being advised of his
Miranda rights, Drake confessed that he, Long, and Harrington had conspired to lure Harwell to the lake
and rob him. He admitted that he shot Harwell and, at this time, did not claim that the shooting was an
accident. Drake again confessed in the presence of his mother that he shot Harwell. During later custodial
interrogation, Drake changed his story and again characterized himself as a victim of the robbery. He stated
that the pistol discharged when he grabbed it in an effort to prevent the murder. At trial Drake continued to
characterize himself as a victim of the robbery. He testified that Harrington pointed the pistol at Harwell's
head. Drake reached for the gun and "when [he] made contact with [Harrington's] hand, it went off." He
then noticed that he had gotten control of the gun and that Harwell was lying on the ground. Drake testified
that he accepted a portion of Harwell's money from Harrington because he was afraid of Harrington.

¶37. Despite the changing nature of Drake's story, the fact remains that Drake confessed to Officers
Thompson and Doss that he conspired with Harrington and Long and that he shot Harwell. The jury was
left to examine the changing stories and to weigh the evidence and the credibility of all the witnesses,
including the officers and Drake. "It goes without saying that the jury is the final arbiter of a witness's
credibility." Morgan v. State, 681 So. 2d 82, 93 (Miss. 1996). It was the jury's function to determine
whether Drake told the truth at trial or in his inculpatory statements made to Officers Thompson and Doss.
Drake's confessions and the corroborative evidence are sufficient to support Drake's convictions of capital
murder and conspiracy. "It is not for this Court to pass upon the credibility of witnesses, and where the
evidence justifies the verdict it must be accepted as having been found worthy of belief." Grooms v. State,
357 So. 2d 292, 295 (Miss. 1978) (quoting Murphree v. State, 228 So. 2d 599 (Miss. 1969)). This
Court "will not set aside a guilty verdict, absent other error, unless it is clearly a result of prejudice, bias or
fraud, or is manifestly against the weight of credible evidence." Maiben v. State, 405 So. 2d 87, 88 (Miss.
1981). The verdict in the case sub judice cannot be characterized as such. We find no merit to this
assignment of error.

      VI. WHETHER THE TRIAL COURT ERRED IN DENYING JURY INSTRUCTIONS
      REGARDING LESSER-INCLUDED OFFENSE THEORIES.

¶38. Drake contends that the trial court erred in refusing his proposed instructions regarding lesser-included
offense theories. Drake fails to enumerate the specific instructions at issue; however, an examination of the
record reveals that he proposed instructions for murder, depraved heart murder, and manslaughter. All
were refused.

¶39. The State did not pursue the death penalty in this case; therefore, the trial court sentenced Drake to life
imprisonment. Both murder and depraved heart murder carry sentences of life imprisonment. Miss. Code
Ann. § 97-3-21 (2000). Thus, even if Drake was entitled to instructions outlining these two theories, the
denial of those instructions was harmless error. See Fairchild v. State, 459 So. 2d 793, 801 (Miss.
1984).

¶40. A lesser-included offense instruction should be given if there is an evidentiary basis in the record that
would permit a rational jury to find the defendant guilty of the lesser-included offense and to acquit him of
the greater offense. Underwood v. State, 708 So. 2d 18, 36 (Miss. 1998). The lesser-included offense
instruction should be granted unless the trial court and ultimately this Court can say, viewing the evidence in
the light most favorable to the defendant and considering all the reasonable inferences which may be drawn
in favor of the defendant from the evidence, that no reasonable jury could find the defendant guilty of a
lesser-included offense. Id.

¶41. Following these guidelines, the trial court found no evidentiary basis for the lesser-included offense
instructions. "Mississippi case law will not permit an instruction without credible evidence supporting its
premise." Holland v. State, 705 So. 2d 307, 353 (Miss. 1997). While all doubts in a capital murder case
should be resolved in favor of the defendant, "a lesser-included offense instruction should never be granted
on the basis of pure speculation." Fairchild, 459 So. 2d at 801.

¶42. This Court has often stated that a defendant is entitled to have the theory of his defense presented to
the jury. Triplett v. State, 672 So. 2d 1184, 1186 (Miss. 1996). Drake argues that the refusal of the
lesser-included offense instructions prevents him from doing so. This is not the case. Drake's theory of the
case is that he did not participate in the robbery but, to the contrary, was a victim. He claims that he was
attempting to prevent a shooting when the "accidental" shooting occurred. If the jury had chosen to believe
Drake's description of the course of events, Drake would have been acquitted. He would not have been
guilty of manslaughter or murder. Thus, Drake's theory is not one of manslaughter or murder but rather one
of excusable homicide. See Miss. Code Ann. § 97-3-17 (2000).

¶43. A pertinent portion of Drake's proposed manslaughter instruction states as follows:

      If you find from the evidence in this case, beyond a reasonable doubt, that Eric Brandon Drake, on or
      about February 5, 1999, in DeSoto Co., Miss. was negligent and the negligence was so gross as to
      be tantamount to a wanton disregard of, or utter indifference to the safety of human life, and such
      negligence, if any, directly caused the death of Jacky Harwell, then you shall find the Defendant, Eric
      Brandon Drake, guilty of manslaughter.

This instruction does not reflect Drake's theory of the case. More importantly, there is no evidentiary basis
for the instruction. Therefore, it was properly refused.

¶44. Neither the evidence nor Drake's own theory of the case support a manslaughter instruction or a
murder instruction. The trial court did not commit reversible error in refusing the instructions. We find no
merit to this assignment of error.

      VII. WHETHER THE TRIAL COURT ERRED IN GRANTING A JURY INSTRUCTION
      DEFINING CONSPIRACY.

¶45. Drake asserts that the trial court committed reversible error in granting jury instruction S-1 which
defined the crime of conspiracy charged in Count 1 of Drake's indictment. Drake argues that the instruction
is not supported by credible evidence.

¶46. "The general rule is that all instructions must be supported by the evidence. Where an instruction is not
supported by evidence then it should not be given." Hicks v. State, 580 So. 2d 1302, 1306 (Miss. 1991).
The trial court found that the testimony of Officers Thompson and Doss supported the instruction and
granted it. We agree with the trial court's decision.

¶47. The following testimony elicited from Thompson supports an instruction embodying the State's
conspiracy theory:

      Assistant District Attorney: So now that you're at the scene of the car here at Mistle Toe and Hickory
      Bark, he tells you the names of the two robbers?

      Thompson: That is correct.

      Q: Manrese Long and who?

      A: Zachary Harrington.

      Q: And immediately after he tells you the names of those two individuals, what does he tell you?

      A: He stated that the three of them had talked about this earlier, and they were needing money, and
      that they had called Mr. Harwell to come to the lake area, or Brandon had called him to the lake
      area.

      Q: Why?

      A: Of course, he said he didn't know what the plan was, and this was made in another statement.

      Q: Let's talk about what he said here, now. Read your report. Did you write down exactly what was
      said in your report?

      A: I did.

      Q: What does it say?

      A: Drake stated the three of them conspired to lure Harwell to the lake and rob Harwell.

      Q: The three of them being who?
     A: Zachary Harrington, Manrese Long, and Eric Brandon Drake.

     ***

     Q: While you're at the scene of the car, what does he tell you about the three of them and their plan?

     A: He told me that the plan was to have Mr. Harwell come to the lake and was going to rob him at
     the lake area.

     Officer Doss's testimony corroborates Thompson's testimony.

¶48. "The essence of a criminal conspiracy is two or more persons combining and agreeing to accomplish
an unlawful purpose or to accomplish a lawful purpose unlawfully." Clayton v. State, 582 So. 2d 1019,
1022 (Miss. 1991). The testimony of Officers Thompson and Doss clearly establish an evidentiary basis for
an instruction embodying the State's conspiracy theory. Therefore, the instruction was properly granted. We
find no merit to this assignment of error.

                                             CONCLUSION

¶49. This Court finds no merit in the foregoing assignments of error. We, therefore, affirm Eric Brandon
Drake's convictions for conspiracy and capital murder and his life sentence and five-year concurrent
sentence.

¶50. COUNT I: CONVICTION OF CONSPIRACY TO COMMIT ROBBERY WITH A
DEADLY WEAPON AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION
OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THE SENTENCE
IN COUNT I SHALL RUN CONCURRENTLY WITH THE SENTENCE IN COUNT II.

     PITTMAN, C.J., BANKS AND McRAE, P.JJ., SMITH, WALLER, COBB, DIAZ AND
     EASLEY, JJ., CONCUR.
