                   IN THE COURT OF APPEALS 12/03/96
                                  OF THE
                           STATE OF MISSISSIPPI
                             NO. 93-KA-01430 COA

ANTHONY WENDELL PRESTON

APPELLANT

v.

STATE OF MISSISSIPPI

APPELLEE



THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND

MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B



TRIAL JUDGE: HON. RICHARD WAYNE MCKENZIE

COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT:

SALLY J. O’FLYNN

CHARLES E. LAWRENCE, JR.

ATTORNEY FOR APPELLEE:

OFFICE OF THE ATTORNEY GENERAL

BY: PAT FLYNN

DISTRICT ATTORNEY: GLENN WHITE

NATURE OF THE CASE: CRIMINAL: MURDER

TRIAL COURT DISPOSITION: GUILTY: SENTENCED TO SERVE A TERM OF LIFE
IMPRISONMENT IN THE MDOC
BEFORE BRIDGES, P.J., COLEMAN, DIAZ, PAYNE, JJ.

DIAZ, J., FOR THE COURT:



Anthony Preston (Preston), was tried and convicted in the Forrest County Circuit Court of murder.
Preston was sentenced to life imprisonment in the Mississippi Department of Corrections. Aggrieved
from the judgment, he appeals to this Court asserting the following issues: (1) that the evidence was
not sufficient to support the evidence, and that the verdict was against the overwhelming weight of
the evidence; (2) that the trial court erred in overruling Preston’s motion to suppress his statement;
and (3) that the trial court erred in admitting the weapon into evidence. Finding no reversible error,
we affirm.



                                                FACTS

On March 30, 1993, Preston went to Hattiesburg, Mississippi along with four of his friends.
Apparently, the men were going to the unemployment office. Upon finding the office closed, they
went to a friend’s house where they started drinking beer and vodka. The group then decided to go
to an apartment complex. As they were walking over to the complex, the group walked past two
elderly men. According to a co-indictee, Frederick Brown (Brown), one of the elderly men, Isom
Bridges (Bridges), walked by the group saying, "I ain’t studying you," when two of the young men in
the group "just started swinging." The man who was with Bridges ran away while three of the
assailants held Bridges down while kicking and hitting him. Brown testified that Bridges looked like
he was trying to get up and run, when the first shot was fired. Bridges was shot five times in the back
by Preston. Brown testified that the group got in their car and drove away. Meanwhile, Preston gave
Brown the gun and told him to hide it. Brown hid it across the street from his mother’s house. He
later told officials where it was hidden.

Preston testified that he shot Bridges in self-defense. He claims that he thought Bridges was coming
at him with a gun, and that he was facing him; however, on cross-examination, he could not explain
how Bridges got shot five times in the back if Bridges was, as Preston claims, facing him.

                                            DISCUSSION

                       SUFFICIENCY AND WEIGHT OF THE EVIDENCE

Preston’s first contention of error is that the State failed to meet its burden in proving the element of
malice aforethought, and that the lower court erred in failing to grant his motion for a directed
verdict. In support of his argument, Preston contends that he had no ill will toward Bridges, and also
that he thought Bridges was carrying a gun. He also argues that his version of the events conflict with
the State’s witness, Brown.

The standard of review for the legal sufficiency of evidence is well-settled. We must with respect to
each element of the offense, consider all the evidence which supports the case for the prosecution--in
the light most favorable to the verdict. Franklin v. State, 676 So. 2d 287, 288 (Miss. 1996) (citations
omitted). The credible evidence which is consistent with the verdict must be accepted as true.
Franklin, 676 So. 2d at 288. The prosecution must be given the benefit of all favorable inferences
that may reasonably be drawn from the evidence. Id. We can only reverse where, under the evidence,
a reasonable juror could only find the defendant not guilty. Id.

Malice aforethought has been defined as the equivalent of deliberate design. Gossett v. State, 660 So.
2d 1285, 1293 (Miss. 1995). Deliberate design always indicates full awareness of what one is doing,
and generally implies careful and unhurried consideration of the consequences. Design means to
calculate, plan and contemplate , and deliberate design to kill a person may be formed very quickly,
and perhaps only moments before the act of consummating the intent. Gossett, 660 So. 2d at 1293
(citations omitted). The supreme court has also approved the following definition of malice
aforethought:

           The [c]ourt instructs the [j]ury that while malice aforethought is a necessary ingredient to
           the crime of murder, that malice aforethought does not necessarily mean hatred or ill will
           and need not exist in the mind of the defendant for any definite time, not for hours, days or
           even minutes, but if there is malice aforethought and a premeditated design to kill and it
           exists in the mind of the defendant but for an instant before the fatal act, this is sufficient
           premeditation and malice aforethought to constitute the offense of murder, unless the
           killing is justifiable.

Thornhill v. State, 561 So. 2d 1025, 1028 (Miss. 1989). Applying this to the case sub judice, the
evidence shows that Preston had formed the necessary premeditation and malice aforethought to
support the murder conviction.

As far as the conflicting testimony, jurors have the duty to resolve the conflicts in testimony. Gossett,
660 So. 2d at 1294. They may accept, reject, believe, or disbelieve any or all the testimony of the
witnesses. Id. "No formula dictates the manner in which jurors resolve conflicting testimony into
findings of fact sufficient to support their verdict." Id. (citations omitted) "A reviewing court cannot
and need not determine with exactitude which witness or what testimony the jury believed or
disbelieved in arriving at its verdict." Id. (citations omitted). "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." Williams v. State, 427 So. 2d 100, 103 (Miss. 1983). Here, the jury weighed
the evidence, believed the State’s witnesses, and convicted Preston. Applying our standard of review,
we cannot say that the trial court was in error by refusing to grant Preston a directed verdict or
JNOV.

When we consider whether the jury’s verdict is against the overwhelming weight of the evidence, we
accept as true all evidence supporting the verdict. Ellis v. State, 667 So. 2d 599, 611 (Miss. 1995).
Reversal is warranted only if there was an abuse of discretion in the circuit court’s denial of a new
trial. Ellis, 667 So. 2d at 611. Considering the above, we find no abuse of discretion. There is no
merit to this issue.

                                       MOTION TO SUPPRESS

Preston’s second assignment of error is that the trial court erred in failing to suppress his statement
made to the police. He claims that his statement was not made voluntarily, and therefore, should not
have been admitted. The general rule for a confession to be admissible is that it must have been given
voluntarily and not as a result of any promises, threats or other inducements. Chase v. State, 645 So.
2d 829, 837 (Miss. 1994). The burden is on the State to prove beyond a reasonable doubt that the
confession was voluntary. Chase, 645 So. 2d at 838 (citations omitted). This burden is met and a
prima facie case is made by testimony of an officer or other persons having knowledge of the facts
that the confession was voluntarily made without any threats, coercion, or offer of reward. Id.
Preston contends that he was questioned and intimidated by officers before they read him his
Miranda rights. Six officers testified that Preston was read his rights before he gave the statement,
that Preston was not intimidated or coerced, nor did he ask for an attorney. Resolving conflicting
testimony regarding voluntariness is a question of fact to be resolved by the trial judge at the
suppression hearing. Id. In determining this, the court must look to the "totality of the circumstances"
surrounding the statement. Id. at 841.

Preston was arrested in Gulfport, Mississippi, and transported to the Hattiesburg Police Department.
Officer McCormick of the Hattiesburg Police Department testified at the suppression hearing that he
transported Preston from Gulfport to Hattiesburg. McCormick testified that the officers in Gulfport
advised him that they had already given Preston his Miranda warnings. McCormick subsequently
read Preston his rights again before they left the Gulfport station. When they arrived in Hattiesburg,
Preston was again read his rights before they video taped his statement and reduced it into writing.
We hold that from the totality of the circumstances, the trial court was well within the realm of
substantial evidence in finding that Preston’s statement was admissible.

                            ADMITTING WEAPON INTO EVIDENCE

Citing no authority, Preston argues that the trial court erred in admitting the weapon into evidence
because the State did not lay the proper foundation. Preston argues that there was no evidence
linking him to the weapon.

In reviewing the record, it appears that Preston’s original objection at trial was not to the chain of
custody, but to the criteria questions. In fact, when the trial judge asked the defense if it was
concerned about the chain of custody or about the criteria questions. The defense replied that it was
concerned about the criteria questions surrounding the contents in the evidence bag. This was
remedied when the officer identified the gun in the bag as the weapon he had retrieved. An assertion
on appeal of grounds for an objection which was not asserted at trial is not an issue properly
preserved on appeal. Ballenger v. State, 667 So. 2d 1242, 1266 (Miss. 1995).

Despite the procedural bar, we will address the issue on its merits. This Court has held that the test
with respect to whether there has been a break in the chain of custody of evidence is whether there is
an indication of probable tampering. Nalls v. State, 651 So. 2d 1074, 1077 (Miss. 1995) (citations
omitted). Matters regarding the chain of custody of evidence are largely left to the discretion of the
trial judge and will not be disturbed unless there appears to be an abuse of discretion. Nalls, 651 So.
2d at 1077.

In the present case, the record reflects that the gun was recovered from the spot pursuant to the
information supplied by Frederick Brown, a co-indictee. Brown testified that Preston gave Brown the
gun after the shooting in order for Brown to hide it for him. Brown further testified that he hid the
gun across the street from his mother’s house, which was where the weapon was recovered. Based
upon these facts, this Court finds that the gun has an unbroken chain of custody, and was sufficiently
connected with the Appellant. There is no merit to this issue. Finding no reversible error in the issues
presented in this appeal, we affirm the judgment of the lower court.



THE JUDGMENT OF CONVICTION IN THE FORREST COUNTY CIRCUIT COURT OF
MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS
APPEAL ARE TAXED TO FORREST COUNTY.



FRAISER, C.J., BRIDGES AND THOMAS, P.JJ., BARBER, COLEMAN, KING,
McMILLIN, PAYNE, AND SOUTHWICK, JJ., CONCUR.
