Before McMILLIN, P.j., Coleman, And Southwick, JJ.
The opinion of the court was delivered by: Coleman, J.
DATE OF JUDGMENT: 03/27/96
TRIAL JUDGE: HON. LAMAR PICKARD
COURT FROM WHICH APPEALED: COPIAH COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: GRAND LARCENY: SENTENCED TO SERVE A TERM OF 5 YRS AS AN HABITUAL CRIMINAL WITH THE MDOC;
¶1. A jury in the Circuit Court of Copiah County returned a verdict of "Guilty of grand larceny" against Michael Millender, whom the grand jury had indicted for taking, stealing, and carrying away "[t]hree hundred forty two dollars in United States currency, 1 carton of Newport cigarettes, 2 bags of groceries, and one billfold . . . of the total and aggregate value of more than two-hundred-fifty dollars . . . and the personal property of Lessie Monroe . . . ." The indictment further charged that "Michael Millender is an habitual criminal within the meaning of Section 99-19-81 of the Mississippi Code of 1972." Pursuant to the jury's conviction of Millender of the felony of grand larceny, the trial court entered a sentencing order by which it sentenced Millender "to five (5) years as an habitual criminal with the Mississippi State Department of Corrections." Millender perfected an out-of-time appeal from the trial court's sentencing order, and he presents for our review and resolution two issues, which we quote verbatim from the "Statement of Issues" contained in his brief:
"1. THE TRIAL COURT ERRED IN NOT GRANTING A DIRECTED VERDICT OR IN THE ALTERNATIVE A NEW TRIAL BY DENYING APPELLANT'S MOTION FOR A DIRECTED VERDICT AND PEREMPTORY JURY INSTRUCTION AS THE VERDICT IS MANIFESTLY AGAINST THE WEIGHT OF THE EVIDENCE."
"2. THE VERDICT OF THE JURY IS THE RESULT OF BIAS, PASSION AND PREJUDICE AS A RESULT OF IMPROPER CLOSING REMARKS BY THE STATE."
However, this Court affirms the sentencing order and sentence which the trial court imposed upon Millender.
¶2. Midmorning on January 3, 1996, James Funchess drove Lessie Nell Monroe and Ms. Monroe's twelve-year-old granddaughter, Murial Monroe, whom Ms. Monroe had formally adopted, to the United States Post Office in Crystal Springs so that Ms. Monroe could obtain her and her granddaughter's Social Security and Supplemental Security income checks. A widow for about two years, Ms. Monroe received both a monthly Social Security check for $399 and a Supplemental Security Income (SSI) check for $91. Murial Monroe also received a Social Security check, apparently based on her natural father's account, in the amount of $399. The monthly total of all three checks was $889.
¶3. James Funchess, whose wife was Ms. Monroe's first cousin, then drove Ms. Monroe to the office of "The Meteor," the newspaper in Crystal Springs, where she obtained photocopies of all three Social Security and SSI checks. From the newspaper office, Mr. Funchess drove Ms. Monroe and her granddaughter, Murial, to Kib's Grocery in Crystal Springs, where Ms. Monroe cashed all three checks. Ms. Monroe waited in Kib's Grocery while her granddaughter walked to Tower Loan to pay $43 and then to pay the electric bill and finally to Tillman Furniture to pay $34. After Murial returned to Kib's Grocery, Mr. Funchess drove Ms. Monroe and her granddaughter to the post office where Ms. Monroe bought two money orders. The first money order for approximately $60 was to pay Ms. Monroe's telephone bill, and the second money order was for $10. She intended to send the money order for $10 to her son.
¶4. As Ms. Monroe and Murial were descending the post office steps, she encountered Michael Millender, whom Ms. Monroe knew because Millender "used to court [her] granddaughter from California." Murial was not that granddaughter. After Ms. Monroe and Millender exchanged greetings, Ms. Monroe explained that she was on her way home by way of Kib's Grocery. Millender offered to take her to the grocery and then to return Ms. Monroe and Murial to Ms. Monroe's home. Ms. Monroe purchased ten bags of groceries at Kib's Grocery, the total purchase price for all of which was "$115 and a little change." Per Ms. Monroe's custom, she paid Kib's Grocery her December grocery bill in the amount of approximately $200, and she charged her January 3 purchase of $115 in anticipation of paying it when she paid her January grocery bill on the following third day of February.
¶5. On the way home, Millender drove Ms. Monroe and Murial by the water company, where Ms. Monroe paid her water bill. Then, Millender drove them home. As Millender and Murial were unloading the bags of groceries from Millender's car, Ms. Monroe saw "the gas man . . . down to my neighbors." She told Murial "to go down there and tell them to bring me some gas." Ms. Monroe used propane gas for heating her home. After Murial left to get the gas man, Ms. Monroe entered her home, walked to her bedroom, and joined Millender, who was then sitting in the other chair in her bedroom. Ms. Monroe and Millender talked while the gas man filled the propane gas tank for her home. Murial remained outside her grandmother's home while the gas man filled her grandmother's tank.
¶6. After the gas man had filled the tank, he came to the front door to collect for the propane gas. When Ms. Monroe heard the gas man's knocking at her front door, she unzipped her purse which she had placed in a box beside the chair where she sat, got some money from her billfold in her purse, put her billfold back in her purse, and carried her money to the gas man who waited at the front door. Millender remained seated in Ms. Monroe's bedroom as Ms. Monroe went to the front door. As Ms. Monroe was returning to her bedroom, she met Millender in the dining room. Millender told her that his brother had called to ask Millender to take him to work, but Millender said that he would "be back after while."
¶7. Ms. Monroe returned to her bedroom with the intention of counting her money because she had not yet paid her accounts at Bigg's Drugs and Ace Hardware. When Ms. Monroe opened her purse to retrieve her billfold and her change purse, she found that both were missing from her purse. She called the police to report the theft of her billfold and change purse. Copiah County Deputy Sheriff Eddie L. Givens responded to Ms. Monroe's call. When he and Copiah County Deputy Sheriff Larry Haynes arrived at Ms. Monroe's home, Ms. Monroe told Deputy Givens that she had approximately $342, although she was not sure of the exact amount. After Ms. Monroe identified Millender as the suspected thief, Deputy Givens contacted the Crystal Springs Police Department, and officers from that department joined the two Copiah County deputy sheriffs at the house where Millender, Millender's brother Charles, and Millender's fiancee, Kim Hackett, lived.
¶8. When the officers arrived at the Millender residence, Charles Millender and Kim Hackett were standing under the carport. As the officers' automobiles entered the driveway, Ms. Hackett "broke and ran and called Michael's name and went into the house." The deputies and police officers went to the door to ask where Michael Millender was. Ms. Hackett and Charles Millender replied that Michael Millender "had [gone] up the street to visit a neighbor's house." Ms. Hackett and Charles Millender gave the deputies permission to search the house, which they did.
¶9. Ms. Hackett and Charles Millender also gave the deputies permission to search the car parked under the carport. Deputy Givens found the billfold and the change purse which Ms. Monroe later identified as hers under the driver's seat. The billfold contained " two or three pennies and a nickel." Inside the billfold Deputy Givens also found "what you call costume jewelry . . . and some credit cards and the Social Security cards belonging to Ms. Monroe." Deputy Sheriff Haynes, who had been in back of the house "looking around," reported to the other officers that he "heard some noise inside the house." The ...