IN THE SUPREME COURT OF MISSISSIPPI
NO. 2002-KA-00400-SCT
SAM IVAN MARTIN
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 08/01/2001 TRIAL JUDGE: HON. JAMES W. BACKSTROM COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ROSS PARKER SIMONS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: DEIRDRE McCRORY DISTRICT ATTORNEY: KEITH MILLER NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 04/22/2004 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC.
CARLSON, JUSTICE, FOR THE COURT:
¶1. Sam Ivan Martin was convicted in the Circuit Court of Jackson County of the murder
of his wife, Crystal, and was sentenced to life imprisonment in the custody of the Mississippi
Department of Corrections. Aggrieved by the judgment rendered against him, Martin appeals
to this Court contending that the circuit court erred in (1) finding him competent to stand
trial, (2) denying his motion to suppress two inculpatory statements he made to law
enforcement, and (3) sentencing him under a statute which unconstitutionally delays his
potential earned time release based upon his age. Finding no merit to Martin's contentions,
we affirm his conviction and sentence. FACTS AND THE PROCEEDINGS IN THE TRIAL COURT
¶2. On August 8, 1998, Deputy Sheriff Robert Zwick of the Jackson County Sheriff's
Department responded to a 911 call at the residence of Sam Ivan Martin and Crystal Martin.
While at the residence, Deputy Zwick discovered that Crystal was not at home and there
appeared to be signs of a disturbance. Deputy Sheriff Mike Sears discovered casings from
a 12-gauge shotgun. Fearing foul play, Detective Sergeant James O'Bryant of the Jackson
County Sheriff’s Department (Criminal Investigation Division) arranged for Martin to come
in for questioning on August 9, 1998. After being interrogated by Investigator O'Bryant,
Martin confessed that he had shot Crystal after she had attempted to shoot herself. Martin
then buried Crystal's body in the septic tank behind the couple's home. Crystal's body was
removed from the septic tank, and it was determined that she had suffered from two shotgun
blasts, one to her face and one to her chest. Martin was arrested on August 9, 1998.
¶3. Martin was indicted, tried, found guilty of murder and sentenced to serve a term of
life imprisonment in the custody of the Mississippi Department of Corrections. The trial
court denied Martin's motion for a new trial or, in the alternative, a JNOV.
DISCUSSION
I. Competency Hearing
¶4. On July 31, 2001, a hearing was conducted to determine whether Martin was
competent to stand trial. Dr. J. Donald Matherne, a board-certified clinical psychologist,
testified for the defense. Dr. Matherne was substituted for Dr. L. Mulry Tetlow, a licensed
2 psychologist, in June 2001 to serve as the court-appointed expert for Martin. Dr. Matherne
interviewed Martin on July 14, 2001, spending approximately three hours with Martin. Over
the next week, he reviewed approximately 255 pages of background information. After
reviewing this information, Dr. Matherne was made aware of the fact that he had had prior
contact with Martin when Martin was under the custody of the Department of Human
Services due to parental neglect in approximately 1986. At the time Dr. Matherne had
suggested Martin remain in the residential placement of Mill Creek. DHS concurred with his
findings, and Martin remained there for several months. On July 26, 2001, Dr. Matherne
dictated his report which was immediately hand-delivered to the Jackson County Public
Defender's Office. Upon receiving Dr. Matherne's report, the Public Defender's Office
immediately provided a copy to the District Attorney's Office.
¶5. Dr. Matherne testified that during his evaluation he performed intellectual,
educational and personality testing. Dr. Matherne stated that he also performed competency
testing and evaluated Martin's capabilities in dealing with his Miranda warnings. Dr.
Matherne noted that, in addition to his evaluation, Martin was also evaluated in 1981, 1984,
1986, 1987, 1990 and 1992. Dr. Matherne incorporated these six prior intellectual
evaluations into his own report. Using (1) Martin's prior special education records from
school; (2) prior psychometric testing; (3) the evaluations from Mill Creek; (4) the disability
evaluation by the Social Security Administration in 1992; (5) his own evaluations; and (6)
an instrument called the MacArthur Competence Assessment Tool-Criminal Adjudication,
3 developed by the National Institute of Mental Health to determine competency specifically
related to the ability of the defendant to proceed with adjudication, Dr. Matherne
determined that Martin was "incompetent to fully understand the proceedings necessary for
his defense." Dr. Matherne further determined that due to his lack of understanding of the
court process, Martin would have "difficulty working together in a meaningful manner in his
representation in the court process."
¶6. Dr. Matherne determined that Martin was "significantly compromised, primarily
because of his intellectual incompetency and not because of any mental incompetency." Dr.
Matherne's testified that during his intellectual testing of Martin, he discovered that Martin's
reading and writing skills were on a first grade level and his ability to comprehend math
problems was on a third grade level.
¶7. Dr. Matherne also testified that he utilized a test developed by Dr. Thomas Grisso to
assess Martin's understanding and appreciation of Miranda rights. Dr. Matherne determined
that Martin showed "evidence of a degree of impairment in his ability to understand his
rights during interrogation, particularly concerning his right to remain silent." Therefore, Dr.
Matherne concluded that Martin's "ability to understand Miranda was significantly
compromised, and [] his ability to understand the proceedings was compromised, primarily
because of his intellectual deficiencies."
¶8. According to Dr. Matherne, he did not talk to any of Martin's family members before
or after his evaluation. The history he relied on was provided in the 255 pages of background
4 information submitted by schools, psychologists and the Social Security Administration
which spanned the last twenty years. The latest history of Martin included in the background
information utilized by Dr. Matherne was a record from William Bridges, M.D., a
psychiatrist, dated April 29, 1998. That record stated that Martin was "mildly mentally
retarded and unable to read or write." The records indicated that Martin finished school at
East Central High School in Hurley where he was in special education classes. Dr. Bridges
also acknowledged that Martin had been attending Singing River Services twice a week.
¶9. Dr. Matherne chose not to interview any of Martin's family members, and he stated
that he based the competency examination on Martin as he saw him on July 14, 2001. Also,
Dr. Matherne testified that he did not rely solely on the information from twenty years ago
inasmuch as competency is a present factor to determine. He stated that his findings were
only validated by the supplemented background information; therefore, there was no need
to interview family members, police, co-workers or neighbors. He also did not listen to the
audio tape of the statement made to the police by Martin. Dr. Matherne was informed by
Martin's counsel, Brenda Cook, that she was having difficulties communicating with Martin.
Although Dr. Matherne met Katy Jones, Martin's fianceer and the mother of his child, Dr.
Matherne did not question her as to the history of their relationship.
¶10. When asked if Martin was able to communicate the general facts surrounding the
crime such as date, time, victim and place, Dr. Matherne responded that Martin was able to
do so. However, Dr. Matherne stated that when asked hypothetical questions concerning
5 legal situations, Martin was unable to understand the role of the defendant in relation to his
counsel. Dr. Matherne also stated that Martin knew the difference between the truth and a
lie.
¶11. Martin's employer, William Toulme, testified that he employed Martin at Toulme
Tire, Inc. approximately a year before the hearing. Toulme stated that Martin's duties
consisted of sweeping, cleaning, and sometimes changing tires. Although he stated Martin
never caused any problems, Toulme testified that Martin had a difficult time following
directions and his communication skills were extremely poor.
¶12. The State's expert psychiatrist, Dr. James Rusch, testified that on the morning of the
hearing he was given a packet of materials by the State for review. He was also given a
synopsis of the police report and had been allowed to listen to the previous testimony of Dr.
Matherne and the other defense witnesses. From the reports and testimony, Dr. Rusch
testified that he did not agree with Dr. Matherne's opinion that Martin was not competent
to stand trial. Dr. Rusch did agree that Martin suffered from mild or moderate mental
retardation. However, Dr. Rusch testified that it was his opinion that Martin had both the
capacity to communicate his needs and communicate with his counsel. He agreed that
Martin may have trouble understanding the proceedings, but he did not see this as an
absolute limitation. Dr. Rusch opined that once the proceedings were explained in simple
concepts, Martin would be reasonably able to assist his counsel and the trial could proceed.
Dr. Rusch was not able to determine if Martin understood his current legal situation because
6 he did not individually interview Martin. Also the questions and answers regarding this
subject matter were not covered in the material he was given to review; therefore, he was not
able to form an opinion within a reasonable degree of medical certainty.
¶13. On cross-examination, Dr. Rusch admitted that he could not state with reasonable
medical certainty that Martin was not competent to stand trial because he had not
individually interviewed Martin. However, he did testify that given the same information
used by Dr. Matherne, he would not have reached the same conclusion reached by Dr.
Matherne that Martin was not competent to stand trial.
¶14. At the end of Dr. Rusch's testimony, the State requested that Martin be immediately
examined by Dr. Rusch. Finding that sufficient evidence had not been presented to the court
so that the court could affirmatively state that Martin was competent to stand trial, the court
granted the State's request. Immediately following the competency hearing, Dr. Rusch
examined Martin for approximately twenty minutes. Following the interview, Dr. Rusch was
reexamined by the State. Dr. Rusch stated that he had sufficient time to conduct the
interview and that Martin was very cooperative during the interview. Dr. Rusch stated that
it was his opinion that Martin was able to stand trial and that he "has a rational, as well as
factual, understanding of the proceedings against him."
¶15. On cross-examination, Dr. Rusch agreed that the answers Martin gave to the thirteen
question McGarry test were childlike responses. Dr. Rusch also agreed that Martin had
difficulty understanding areas of complex abstraction which are commonly found in a case
7 such as his. However, Dr. Rusch further stated it would be the duty of the attorney to deal
with the complex roles and further explain all potential options to their clients.
¶16. Although he noted that there was conflicting testimony, the trial court, basing its
finding upon the questions that were asked by Dr. Rusch and the responses which were given
by Martin, determined that Martin was competent to stand trial and was capable of assisting
his attorneys.
¶17. This Court has held that the test for competency to stand trial mandates that a
defendant is one:
(1) who is able to perceive and understand the nature of the proceedings; (2) who is able to rationally communicate with his attorney about the case; (3) who is able to recall relevant facts; (4) who is able to testify in his own defense if appropriate; and (5) whose ability to satisfy the foregoing criteria is commensurate with the severity of the case.
Howard v. State, 701 So.2d 274, 280 (Miss. 1997) (citations omitted). The standard for
competence to stand trial is whether the defendant has "sufficient present ability to consult
with his lawyer with a reasonable degree of rational understanding" and "has a rational as
well as factual understanding of the proceedings against him." Dusky v. United States, 362
U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). The procedures which govern a competency
determination were set forth in Emanuel v. State, 412 So.2d 1187, 1188-89 (Miss.1982).
See also Uniform Rules of Circuit and County Court Practice 9.06. In Emanuel, this Court
held:
When the trial court has made a finding that the evidence does not show a probability that the defendant is incapable of making a rational defense, we
8 will not overturn that finding unless we can say, from the evidence, that the finding was manifestly against the overwhelming weight of the evidence. The evidence must show more than a possibility that defendant is incompetent to stand trial-the evidence must go further until it appears to the trial court that there is a probability that defendant is incapable of making a rational defense. In this initial inquiry, the trial judge must weigh the evidence and be the trier of the facts.
Emanuel, 412 So.2d at 1189.
¶18. We find no evidence in the record to indicate that the trial court abused its discretion
or that the determination of competency was against the overwhelming weight of the
evidence. See Snow v. State, 800 So.2d 472, 489-90 (Miss. 2001); Dunn v. State, 693
So.2d 1333, 1341 (Miss. 1997). The conflict in the evidence presented is properly resolved
by the trier of fact. See Snow, 800 So.2d at 490; Evans v. State, 725 So.2d 613, 663
(Miss. 1997). Therefore, this issue is without merit.
II. Suppression Hearing
¶19. On July 31, 2001, following the morning competency hearing, the circuit court held
a hearing on the defense's motion to suppress the statements made by Martin to the Jackson
County Sheriff's Department. On at least two separate occasions, Martin made statements
to the Sheriff's Department. However, Martin argued that he never knowingly, voluntarily
or intelligently waived his rights to an attorney. Martin also argued that the statements were
elicited by undue coercion.
¶20. The State first called Robert Zwick, a patrol deputy with the Jackson County Sheriff's
Department. Deputy Zwick testified that he was dispatched to the Martin residence on Little
9 Bluff Road on August 8, 1998. When he first arrived at the scene, no one was at the
residence. Martin arrived as Deputy Zwick was walking back to his car. Zwick testified that
Martin seemed surprised when he was informed that Crystal was not at home. Martin and
Zwick then entered the residence to determine if Crystal was in fact at home. Zwick testified
at that point Martin was not a suspect for any crime. Although they did not find Crystal in
the trailer, Deputy Zwick did discover that the couch had been moved. Zwick testified that
he was familiar with the Martins' home because he had been previously called out to their
residence. Zwick testified that when Martin moved the couch back to its normal position,
Martin found blood. Zwick also determined that another spot, which he first thought to be
a ketchup stain, was also blood. After discovering blood at the Martins' residence, Zwick
then called his supervisor, Captain Bud Polifrone.
¶21. Zwick testified that while he and Martin were at the trailer, Martin told him that he
and Crystal were inside eating with their four children when they heard a "bang" at the back
door. Crystal went to the back door with a shotgun and informed Martin that it was his
father, Chester. She also told Martin to "get the kids safe." At that time, Crystal had charges
against Chester for simple assault and stalking. Zwick testified that Martin told him he then
loaded all of the children inside their vehicle and left the trailer. Martin told Zwick that this
was the last time he saw Crystal. Zwick testified that this was the only conversation he had
with Martin. Zwick also stated that nothing was done in his presence to induce Martin to
give this version of his story.
10 ¶22. The State next called James Robert O'Bryant, formerly a detective sergeant with the
Criminal Investigation Division (CID) of the Jackson County Sheriff's Department. At the
time of the hearing, O'Bryant was employed by Ingalls Shipbuilding. O'Bryant testified that
he was called to the Martins' residence on August 8, 1998. O'Bryant stated that he did have
an opportunity to speak with Martin once he got to the scene. Martin informed O'Bryant that
Crystal was gone; however, Martin did not elaborate except to say that he and Crystal were
having problems and were separated at the time. O'Bryant made arrangements for Martin to
come to the CID office the next day. At this point in the investigation, O'Bryant testified that
Martin was now a suspect in Crystal's disappearance. Before questioning Martin, O'Bryant
stated that he read Martin his Miranda rights using the Department's standard form. After
being read his Miranda rights, Martin signed the form. O'Bryant stated that Martin appeared
to understand the form and he agreed to talk to O'Bryant. O'Bryant testified that no one
threatened or coerced Martin in his presence. O'Bryant stated that he made an audio tape
of the interview. After this initial interview, O'Bryant stated that he left the room to attend
to Department business. Martin was left in the interview room alone with Captain Carew.
When O'Bryant returned to the room and after Captain Carew had left the room, Martin
made another statement which was not recorded. O'Bryant testified that Martin broke down
and told him that "the shotgun went off, hit her in the side of the head and her eyeball was
hanging out and he didn't want her to suffer, and so, he shot her in the chest." O'Bryant
testified that Martin stated he then placed Crystal's body in the septic tank outside the
11 trailer. O'Bryant testified that he did not coerce Martin to make this statement. This
conversation which occurred approximately fifteen minutes after the taped conversation was
the last conversation O'Bryant had with Martin.
¶23. On cross-examination, O'Bryant stated that Martin was read his rights at
approximately 3:00 p.m. on August 9, 1998. However, the statement given by Martin was
not recorded until 5:12 p.m. and lasted approximately five minutes. O'Bryant testified that
several officers talked with Martin on the afternoon of August 9. O'Bryant also testified that
Martin had indicated to him that he had been beaten while he was alone in the interrogation
room with Captain Carew. However, O'Bryant testified that he did not condone offensive
procedures, and if those types of procedures had occurred in his presence, he would have
cleared the interrogation room and privately conducted the interview. O'Bryant stated that
after he had conducted the initial taped interview, he was instructed by Captain Carew to
leave the interview room. When he reentered the interview room, Martin was very upset.
Martin then told O'Bryant that Captain Carew hit him. O'Bryant testified that based on
Martin's emotional state, he believed Martin was telling the truth about the beating.
¶24. The State then withdrew the introduction of the third statement made by Martin after
the incident occurred between Martin and Captain Carew. The State proposed to introduce
the first statement made to Officer Zwick and the recorded statement made to O'Bryant.
Martin moved to exclude all evidence that would be "fruits of the poisonous tree" because
the third statement led the Sheriff's Department to the body. The trial court denied the
12 motion because in the recorded statement, Martin made reference to taking the body and
burying it in a shallow grave.
¶25. Continuing with testimony at the suppression hearing, the defense called Dr.
Matherne to testify as to the specific testing performed in order to determine if Martin was
competent to waive a Miranda warning. Dr. Matherne performed three tests, the Weschler
Adult Intelligence Test-III (WAIS-III), the Wide Range Adaptive Test-III (WRAT-III) and
a test developed by Dr. Thomas Grisso referred to as the "Assessing Understanding and
Appreciation of Miranda Rights." Based on the results gleaned from these tests, Dr.
Matherne determined that there were several words contained in the waiver of rights form
that Martin did not understand. Although he did understand many of the other words, Dr.
Matherne testified that Martin became confused during the questioning of his rights due to
his limited intellect. Dr. Matherne further testified that in his professional opinion, Martin
was "significantly compromised in his ability to adequately waive his Miranda rights." Dr.
Matherne determined that Martin's IQ was 60; therefore, Martin would be extremely easy
to confuse and would be highly susceptible to outside influence.
¶26. On cross-examination, Dr. Matherne explained that while Martin might understand
all the words found in the sentences which make up the waiver form, when the words are
actually put into sentence form, it requires a higher level of intellectual functioning to
comprehend the meaning of the sentence.
13 ¶27. After hearing testimony, the trial court determined that Martin's first two statements
made to Zwick and O'Bryant were freely, voluntarily, intelligently and knowingly made.
Therefore, the motion to suppress those two statements was denied. The trial court held that
the statement made after the recorded statement would be excluded based upon violence
exhibited toward the defendant.
¶28. The trial commenced on July 31, 2001 and before the jury was empaneled, Martin
moved to preclude the State from offering any testimony regarding the body or the body
being found in the septic tank because of the statements suppressed by trial court. Martin
argued that the statement which was suppressed due to coercion informed the Sheriff's
Department that the body could be found in the septic tank. After that statement was given,
the body was discovered in the septic tank. The statement which was not suppressed only
stated that the body had been buried in a shallow grave. The septic tank was not mentioned.
The State argued that the trial court had previously ruled on this motion. However, the State
further argued that although Martin had not mentioned a septic tank in the first statement,
he did state that he had buried her in a shallow grave. The shallow grave turned out to be
the septic tank which could not be accessed without digging. The trial court denied the
motion because it found septic tank and shallow grave to be synonymous. The trial court
stated that the information provided by Martin in the statement which was not suppressed
would have allowed the Sheriff's Department to discover the body.
14 ¶29. "For a confession to be admissible, it must have been given voluntarily and not given
as a result of promises, threats or inducements." Richardson v. State, 722 So.2d 481, 487
(Miss. 1998) (citing Morgan v. State, 681 So.2d 82, 86 (Miss. 1996); Chase v. State, 645
So.2d 829, 837-38 (Miss. 1994); Layne v. State, 542 So.2d 237, 240 (Miss. 1989)). In
determining whether a statement is voluntary, the trial judge must first determine whether
the accused, prior to the confession, understood the content and substance of the Miranda
warning and the nature of the charges of which he was accused. Neal v. State, 451 So.2d
743, 755 (Miss. 1984). Although this Court has repeatedly recognized that "an accused's
intelligence level and mental abilities are an important factor to be considered in determining
whether a confession has voluntarily been given," there are no per se rules against admitting
the confession of a mentally challenged person. Id. at 756.
[T]he mental abilities of an accused are a factor--but only one factor--to be considered. When all of the facts and circumstances of the particular confession and the interrogation leading up to it are considered--including the accused's abilities--the trial judge must find as a fact whether the confession was intelligently and voluntarily made. That fact finding will not be disturbed here unless we find it clearly erroneous.
Id.
A confession will not ordinarily be excluded merely because the person making the confession is mentally weak. Until it is shown that a weak-minded person has been overreached to the end that he has divulged that which he would not have divulged had he not been overreached, his voluntary confession is admissible.
Williamson v. State, 330 So.2d 272, 276 (Miss. 1976).
15 ¶30. "This Court will reverse a trial court's finding that a confession is admissible only
when an incorrect legal standard was applied, manifest error was committed, or the decision
is contrary to the overwhelming weight of the evidence." Duplantis v. State, 644 So.2d
1235, 1243 (Miss. 1994) (citing Willie v. State, 585 So.2d 660, 665 (Miss. 1991)).
Therefore, after a thorough review of the record, we decline to hold that the trial court's
finding regarding Martin's ability to voluntarily, knowingly and intelligently waive his rights
and make two separate statements was clearly erroneous or against the overwhelming weight
of the evidence. We further find that the trial court was correct in denying Martin's motion
to preclude all mention of Crystal's body by applying the rationale that the Sheriff's
Department would have discovered the body from the information given to them by Martin
in his second statement which was admitted into evidence. We, therefore, find this issue is
without merit.
III. Miss. Code Ann. § 47-5-139(1)(a)
¶31. After being convicted of murder pursuant to Miss. Code Ann. § 97-3-19(1)(a) (Rev.
2000),1 Martin was sentenced to serve a term of life imprisonment in the custody of the
Mississippi Department of Corrections. Martin argues that the statute which governs when
1 Miss. Code Ann. § 97-3-19 states in pertinent part:
(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases: (a) When done with deliberate design to effect the death of the person killed, or of any human being. . . .
16 a party can be conditionally released from a life sentence, Miss. Code Ann. § 47-5-139 (Rev.
2000), violates his due process rights and equal protection rights because the statute makes
an age-based distinction which lengthens a criminal sentence due to the age of an inmate.
Miss. Code Ann. § 47-5-139 (Rev. 2000) states in pertinent part:
(1) An inmate shall not be eligible for the earned time allowance if: (a) The inmate was sentenced to life imprisonment; but an inmate, except an inmate sentenced to life imprisonment for capital murder, who has reached the age of sixty-five (65) or older and who has served at least fifteen (15) years may petition the sentencing court for conditional release. . . .
¶32. Martin raised this issue before the trial court in his Motion for a New Trial, or, in the
Alternative, a JNOV. Martin argued that the statutory scheme under which he was
sentenced, Miss. Code Ann. § 47-5-139, was unconstitutional. Martin argued that since he
was 27 years old at the time the crime was committed, he would be required to serve at least
35 years before becoming eligible to petition the trial court for conditional release; whereas,
someone who was sentenced at the age of 50 would only have to serve 15 years before being
given the opportunity to petition for conditional release. The trial court denied Martin's
motion for a new trial, or in the alternative, a JNOV.
¶33. The State argues that Martin is serving a life sentence following a conviction of
murder; therefore, Martin is not incarcerated by virtue of Miss. Code Ann. § 47-5-139. The
State contends that this issue is not currently ripe for review on direct appeal of Martin's
conviction and sentence. The State suggests the proper place for application of this statute
would be Martin's petition for post-conviction relief. We agree. Additionally, the cases
17 cited by Martin are inapplicable to the issue before us today. Section 47-5-139 is not
violative of Martin’s due process and equal protection rights by specifying criteria to
consider in determining which inmates may or may not be considered for earned time
allowance. See Irving v. Thigpen, 732 F.2d 1215, 1217-18 (5th Cir. 1984); Conley v. State,
790 So.2d 773, 806 (Miss. 2001); Harden v. State, 547 So.2d 1150, 1152 (Miss. 1989).
This issue is thus without merit.
CONCLUSION
¶34. The trial court did not abuse its discretion in determining that Sam Ivan Martin was
competent to stand trial nor in finding Martin voluntarily, knowingly and intelligently
waived his rights prior to making two separate statements which were admissible into
evidence. Additionally, Martin’s sentence is not unconstitutional, either in its imposition or
its effect under our sentencing and parole statutes. Accordingly, we affirm the judgment of
the Circuit Court of Jackson County.
¶35. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.
SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, GRAVES AND DICKINSON, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.