LATTIMORE v. STATE

COBB, Presiding Justice, for the Court.

¶ 1. This case is before the Court on appeal from the judgment of the Washington County Circuit Court which sentenced Terry L. Lattimore to life in prison without parole for capital murder. Lattimore raises issues regarding pre-trial and in-court identification; ineffective assistance of counsel; improper juror communication; prosecutorial misconduct during closing argument; the jury's verdict being against the overwhelming weight of the evidence; and cumulative error. Finding no reversible error, we affirm the trial court's conviction and sentence.

¶ 2. On the morning of July 16, 2000, James Dycus responded to a knock at his front door. His wife, Virgie, still in bed, heard a "blundering" noise, and then her dog barked, so she went to the front door, which was ajar. Seeing nothing amiss, she went into the kitchen where she could see through the window that her husband was in the yard, talking to a black man. Sensing that something was not right, Virgie Dycus dialed 911 just as a second black man rounded the corner and struck her husband's head from behind with a pipe-like object. The second man continued to beat Dycus, and then took his wallet.

¶ 3. While on the phone with the dispatcher, Virgie Dycus continued to described the scene as she saw it. She reported that the two men had driven away in a white car. A few minutes later, a neighbor reported a white car traveling at a high rate of speed away from the area. The police found the abandoned getaway vehicle a short distance away, and the vehicle identification number (VIN) showed that it was registered to Terry Lattimore. Dycus died approximately one hour after the assault, and the coroner reported that the cause of death was blunt force trauma to the head.

¶ 4. Gary Brown and Terry Lattimore were both arrested for capital murder. Although they admitted to being at the scene, each implicated the other for the actual killing and claimed to know nothing of the impending crime before it occurred. In Virgie Dycus's initial statement to the deputy sheriff, she described the assailant as being a light skinned, slender blackman. She said he was not wearing a shirt and was in his late twenties or early thirties. She identified the other man as merely a tall black man.

¶ 5. Washington County Public Defender William R. LaBarre, was appointed to represent both Lattimore and Brown, even though the case could potentially impose the death penalty and each had already blamed the other for the murder. Eight days after Dycus's death, a physical lineup was set to be conducted by the Washington County Sheriff's office. The Sheriff's investigator called LaBarre's office and spoke with his assistant, Barbara Ballard, who explained that LaBarre was not available, but she would come over for the lineup. In her presence, and the presence of several others, all of whom were observing through a mirrored window, the officers went forward with the identification process. No counsel was present at this time. Virgie Dycus had no trouble identifying Brown, but "had a little problem picking [Lattimore] out at first because his hair was different." However, once he stepped forward and looked directly toward her, she said unequivocally "that's him," and did not waiver thereafter. The following day, the trial court granted LaBarre's motion to withdraw as Brown's attorney due to a conflict of interest between the two defendants.

¶ 6. At Lattimore's trial, the state called various witnesses to the stand, including Virgie Dycus, who was the only eyewitness to the murder. When asked whether the man who beat her husband was present in the courtroom, she scanned the audience carefully. Looking methodically around the courtroom, she hesitantly considered one, or possibly two, different bystanders, before ultimately identifying Lattimore, who was sitting at the defense table.

¶ 7. Johnnie Brimmage, a neighbor of the Dycuses, was also called to testify. He had seen the two men driving down the road toward the Dycus residence prior to the incident, and said that the second man to get out of the car retrieved an object from the trunk which he carried around to the front of the house. Brimmage said he watched for a few minutes and saw the two men leaving the scene. They waved to him casually as they passed. Neither Lattimore's attorney nor the prosecutor pressed Brimmage about the identity of the second man.

¶ 8. Although the purported murder weapon was never positively associated with the murder through forensic investigation, the prosecution brought out a metal pipe during closing argument and referred to it as he argued. During the special hearing, several witnesses testified that the prosecutor proceeded to swing the pipe around and drop it loudly on the table.

¶ 9. The jury (which had been sequestered during trial) returned a verdict of guilty, and sentenced Lattimore to life in prison without parole. The day before the sentencing phase ended, a maintenance person came forward, stating that she had a conversation with a juror's boyfriend in which he admitted he had been discussing aspects of the case with the juror at night on a cell phone that she had secreted into the hotel. The boyfriend denied these allegations, stating that he had been overheard talking about a movie called "The Juror" and that it was a misunderstanding. He said that he knew he was going to be questioned by the court because someone warned him that morning. After questioning, the juror's hotel room was searched, but no phone was found. Although the court conducted a hearing on the matter, counsel for the defense did not move for a mistrial.

I. Motion to suppress evidence of the pre-trial identification

¶ 10. When reviewing a trial court's ruling on the admission or suppression of evidence, this Court must assess whether there was substantial credible evidence to support the trial court's findings. Culp v. State, 933 So.2d 264, 274 (Miss. 2005). The admission of evidence lies within the discretion of the trial court and will be reversed only if that discretion is abused. Id.

¶ 11. There is no question that under the Sixth Amendment, a defendant is entitled to counsel at all proceedings after adversarial proceedings have been initiated against him. Brooks v. State, 903 So.2d 691, 694 (Miss. 2005). Adversarial proceedings are held to have been initiated when a defendant is arrested pursuant to a warrant. Nicholson v. State, 523 So.2d 68, 74 (Miss. 1988).

¶ 12. In the present case, the lineup was conducted eight days after Lattimore was arrested pursuant to a warrant. The law enforcement officers should not have conducted the identification proceeding knowing that Lattimore's counsel could not be present. In Jimpson v. State, 532 So.2d 985, 988 (Miss. 1988), a lineup was conducted in order to identify a man accused of armed robbery. Because his counsel was not present at the proceeding, this Court concluded that constitutional error had occurred. Id. at 989. This was not the end of the analysis, however. Under the doctrine of harmless constitutional error, the majority opined that: ". . . there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the federal constitution, be deemed harmless, not requiring the automatic reversal of the conviction." Id. (quoting Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). The Court went on to say that "[a]lthough Jimpson's right to counsel had attached at the lineup, thereby constituting a technical violation of his Sixth Amendment right to counsel, the record is clear that . . . their identification was based on their view of the defendant at [the scene of the crime] and not based on the lineup identification." Id.

¶ 13. The reasoning utilized in Jimpson is likewise applicable to the present case. The lineup itself was constitutional error but not fatal to this case. Lattimore's right to counsel had attached before the lineup was conducted, and thus proceeding with the lineup without his counsel was error. However, it is clear that Virgie Dycus's in-court identification was based upon her view of the defendant at the scene of the crime and not based upon the lineup. Under the standard set forth by the United States Supreme Court in Chapman, and followed in Jimpson, the conviction was not obtained based upon the lineup, but instead was a result of the in-court identification coupled with other evidence.

¶ 14. In ruling on the defendant's motion to suppress, the trial court correctly held that according to the Jimpson case, "the Court must still look at the specific circumstances of this case and of the lineup and the identification . . . [t]he Court is going to deny the motion and allow the identification, finding that the identification of this witness is not based on the lineup, and she will be allowed to make the identification in Court." There is no merit to Lattimore's first issue.

¶ 15. Where constitutional error in pretrial identification has occurred, the state must show by clear and convincing evidence that subsequent in-court identifications are not based upon the offensive lineup, but instead have an independent origin. Gilbert, 388 U.S. at 271, 87 S.Ct. 1951; York v. State, 413 So.2d 1372, 1375 (Miss. 1982). In Neil v. Biggers, the U.S. Supreme Court laid out several guiding factors to be used in determining whether the in-court identification is free from the taint of the impermissible lineup. The factors include: the opportunity of the witness to view the criminal at the time of the crime; the witness's degree of attention; the accuracy of the witness's prior description of the criminal; the level of certainty exhibited by the witness at the confrontation; and the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

¶ 16. Although it is preferable for trial courts to make specific findings as to each of these factors, we will look at the totality of the circumstances in determining whether the in-court identification has been impermissibly tainted by a faulty pretrial lineup. In Nicholson v. State, 523 So.2d 68, 72 (Miss. 1988), we said "an impermissibly suggestive pretrial identification does not preclude in-court identification by an eyewitness who viewed the suspect at the procedure unless: (1) from the totality of the circumstances surrounding it, (2) the identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." ( Citing York v. State, 413 So.2d 1372, 1383 (Miss. 1982)). We will support a trial court's finding that an in-court identification was not tainted unless there is no substantial credible evidence supporting such a conclusion. Outerbridge v. State, 947 So.2d 279, 282 (Miss. 2006) (citing Roche v. State, 913 So.2d 306, 310 (Miss. 2005)).

¶ 17. Applying the Biggers factors to the present case, we agree with the trial court's determination that the in-court identification was not tainted, based on the following evidence which was presented at trial.

Opportunity to view the accused

¶ 18. Virgie Dycus testified that at the time of the attack on her husband, she had a clear view of the assailants through her kitchen window. Although she admitted that she was not wearing her bifocals at the time, she testified that her glasses did not affect her vision at a distance. She further testified that she was able to see Lattimore clearly at the time of the murder, because he looked straight through the window at her, and when he saw her on the telephone, he and the other man ran away.

Degree of attention

¶ 19. During cross-examination, Virgie Dycus admitted that she was distraught at the time and perhaps was paying more attention to her husband than to his assailants. However, while on the phone with the 911 dispatcher, she was standing at the window, watching the two men as her husband was being beaten. She said that the man who hit her husband on the head was slender, had a light complexion, and was not wearing a shirt.

Accuracy of prior description

¶ 20. Virgie Dycus was consistent from the time she first described Lattimore on the day of the murder until the day of trial that Lattimore was a slender, light-skinned black man with short hair. She could not say definitely that his hair was braided on the day of the murder, but it was hanging long on the day of the lineup.

The level of certainty exhibited by the witness at the confrontation

¶ 21. Virgie Dycus successfully picked out Lattimore and Brown during the pretrial lineup. She recognized Brown immediately, but hesitated momentarily before identifying Lattimore, since his hair was longer than it was on the day of the murder. Once he stepped forward and looked straight ahead into the mirrored window behind which she was standing, she immediately said "[t]hat's him."

¶ 22. We conclude that substantial credible evidence supports the judgment of the trial court with regard to both the pretrial and in-court identifications of Lattimore. These issues are without merit.

¶ 23. Lattimore asserts that he was given ineffective assistance of counsel in violation of his Sixth Amendment rights. In support of this contention, he argues that the public defender assigned to his case: (1) represented both Brown and him at the lineup stage, thus constituting a conflict of interest; (2) failed to fully investigate the case by interviewing all key witnesses; (3) failed to move for a new trial upon learning of possible juror misconduct; and (4) failed to move for a mistrial after the state's closing argument and Virgie Dycus's in-court identification.

¶ 24. The test to be applied for ineffective assistance of counsel was established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), where the United States Supreme Court determined that the benchmark is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having a just result. See Brawner v. State, 947 So.2d 254, 260 (Miss. 2006) (citing Leatherwood v. State, 473 So.2d 964, 968 (Miss. 1985)). However, there is a strong presumption that the attorney's conduct falls within the wide range of reasonable professional conduct and strategy. Leatherwood, 473 So.2d at 969. There is also a presumption that all decisions made during the course of trial were strategic. Id. In order to prove that counsel was deficient, a defendant must show that counsel's performance was deficient, and that the deficient performance prejudiced the defense. Id. at 968. Reviewing the actions of his counsel through this lens, we conclude that Lattimore's claims are without merit.

Conflict of Interest

¶ 25. The public defender was assigned to represent both Lattimore and Brown after both men made statements implicating the other. This concurrent representation was an obvious conflict of interest which existed at the time of the pretrial lineup. See Littlejohn v. State, 593 So.2d 20, 23 (Miss. 1992). When an attorney represents co-defendants with adverse positions, the issue is not a question of counsel's competency, but of counsel's loyalty. Id. Had the attorney continued the dual representation, the Sixth Amendment violation would have tainted the trial proceeding. As it was, however, alternate counsel was appointed for Brown soon after the lineup occurred. Thus Lattimore had competent, unconflicted counsel at all times from that point forward. The initial conflict, which existed for a short time when no assistance was given which could adversely affect either client, does not render Lattimore's counsel ineffective under Strickland. Failure to Investigate

¶ 26. Lattimore next argues that his trial counsel failed to adequately depose Johnny Brimmage, the Dycuses' neighbor, and that this omission directly resulted in his conviction. In Woodward v. State, 843 So.2d 1, 18 (Miss. 2003), this Court stated that: "A defendant who alleges that trial counsel's failure to investigate constituted ineffectiveness must also state with particularity what the investigation would have revealed and specify how it would have altered the outcome of the trial." Lattimore asserts that, had trial counsel sufficiently interrogated Brimmage, testimony would have surfaced tending to show that Brown, not Lattimore, was the murderer. With only Virgie Dycus's identification to contradict Brimmage's testimony, Lattimore argues that the jury would have found him innocent. The jury did send out two notes requesting a copy of Brimmage's testimony during their deliberations, and both requests were denied by the trial court. The jury was unable to come to a verdict on the first day and deliberated overnight.

¶ 27. Although Brimmage was a key witness in this case, trial counsel made a judgment call and chose not to elicit any additional information regarding the killer. Counsel did cross-examine Brimmage, asking him about the make of the getaway vehicle and also attempting to impeach him by showing he was intoxicated at the time of the crime. However, the fact that Brimmage was not asked certain questions about the killer's identity does not render counsel's services ineffective.

Motion For New Trial

¶ 28. Trial counsel has the responsibility to make all appropriate posttrial motions. See Holland v. State, 656 So.2d 1192, 1198 (Miss. 1995). Lattimore argues that his trial counsel failed to move for a new trial after a hearing was conducted regarding juror misconduct. Though counsel certainly could have moved for a new trial at the conclusion of this hearing, we have not held that, without more, such an omission amounts to ineffective counsel. Lattimore has made no viable showing that, had counsel made said motion, the trial court would likely have ruled in his favor. Thus, this issue is without merit.

Failure to Object or Move For Mistrial

¶ 29. Finally, Lattimore asserts that his counsel was ineffective in failing to object to Virgie Dycus's in-court identification and to certain remarks made by the state during closing argument. Judicial review of an attorney's trial tactics must be highly deferential to counsel. Powell v. State, 806 So.2d 1069, 1077 (Miss. 2001). Contrary to Lattimore's argument, trial counsel did, in fact, make a timely objection to the identification. After the identification trial counsel approached the bench and stated that: "We would object to her identification at this point." The court determined that it would allow the record to "reflect that the last person that she — the person that she made the last statement concerning — was the defendant." Id. Counsel also approached the bench at the conclusion of Virgie Dycus's testimony regarding a possible suggestion given by her family after she pointed to the wrong person. Although arguably counsel should have moved for a mistrial at this point, Lattimore presented no evidence showing that the trial court would likely have granted such motion. Whether the event occurred is not clear, but what is clear is that the only specific accusation comes from Lattimore himself. There is no showing that the court would have given Lattimore a new trial based upon his own self-serving testimony. In addition, other mistrial motions were made throughout the trial, proving that counsel was active in representing and protecting the rights of his client.

¶ 30. During closing arguments, the state brought out a metal shaft the investigation had uncovered from the scene of the crime. Several times, the prosecution referred to the shaft as if it were the murder weapon, although no evidence of blood or DNA was found positively linking the object to the murder. At the hearing to supplement the record, several members of Lattimore's family testified that the prosecutor swung the pipe around and banged it on the table, actions which Lattimore claims were calculated to infuriate the jury. Lattimore points to his attorney's failure to object to these actions as evidence that his counsel was ineffective. Again, such an omission does not necessitate a finding that counsel was insufficient. In hindsight, an objection to such conduct might have been reasonable, but Strickland is not so stringent as to require that all reasonable motions and objections be made in order for counsel to be deemed competent.

¶ 31. Although Lattimore's attorney could have made several additional objections and motions, overall, trial counsel was vigilant in representing his client. He filed pretrial motions to suppress certain evidence, and made numerous objections and motions during the course of the guilt phase. The right to effective counsel does not entitle the defendant to have perfect counsel, only competent counsel. Davis v. State, 897 So.2d 960, 966-67 (Miss. 2004) ( citing Stringer v. State, 454 So.2d 468, 476 (Miss. 1984)).

¶ 32. We conclude that the public defender's overall performance was within the realm of suitable performance; thus Lattimore's claims of ineffective counsel are not borne out in the record.

IV. The state's introduction of a metal pipe as the purported murder weapon

¶ 33. It was unnecessary for the state to prove that the lead pipe, found under the van at the crime scene, was the actual weapon used in the commission of the murder. See Rhodes v. State, 676 So.2d 275, 283 (Miss. 1996). When there is evidence that the weapon could have caused the injury, and some connection between the defendant and the weapon exists, the object is deemed relevant and admissible. Id. (citing Ethridge v. State, 418 So.2d 798 (Miss. 1982) and Stokes v. State, 518 So.2d 1224, 1227 (Miss. 1988)).

¶ 34. The holding in Rhodes is applicable to the case at bar. There, a man died from gunshot wounds which were initially thought to be self-inflicted. No autopsy was conducted until nine years later, when his wife was finally prosecuted for his murder. The state recovered a gun from the attic of the house, similar to the one found on the scene. The new owner of the house testified that on the day of the grand jury indictment, Rhodes had called asking for the gun and told her not to tell anyone about it. When the state attempted to admit it into evidence, the defense objected, stating that there was no evidence directly linking the gun to the crime. This Court concluded that, because it was possible that the gun was the one used in the crime and there was evidence linking it to the defendant, it was sufficiently relevant and thus admissible.

¶ 35. Similarly, in this case, there was ample evidence linking the weapon to the crime. The prosecution introduced Lattimore's own statement, which the defense did not seek to suppress. After admitting to being at the scene, Lattimore claimed that he saw Brown dispose of the pipe used in the murder under a nearby van. The autopsy revealed that Dycus's death was caused by blunt-force trauma to the head. Although there were no DNA samples, blood, or fingerprints, the experts concluded that the wound could have been caused by the pipe. Thus, ample proof existed for a jury to conclude that the metal pipe introduced by the state was the murder weapon. The defense presented no evidence to the contrary, thus this issue is also without merit.

¶ 36. Immediately after the sentencing phase of the trial, several court personnel came forward with information regarding possible juror misconduct by Latoya Batteast. The trial court sua sponte conducted a hearing on the matter in which both sides questioned the witnesses. During the inquiry, the court reporter and two maintenance persons stated that they had seen Malcom Morris, the juror's boyfriend, in the hallway waiting for Batteast to be relieved of her duties. There was testimony that Morris said he had spoken to her, via cell phone, during deliberations, and that she had informed him the trial would be ending soon. When asked about this statement, he offered the weak explanation that he had been talking about a movie in which one of the jurors has a cell phone. During questioning, Morris admitted to talking to his girlfriend once, but said it was with the bailiffs permission. Batteast denied talking to Morris at all. A search of Batteast's bags revealed no cell phone. There was no testimony or other evidence that any discussion of the merits of the case or any attempt was made to improperly influence Ms. Batteast in any way. Assuming arguendo that the telephone conversations occurred, such telephone contact with Morris was clearly wrong. However, the trial court heard the contradictory testimony and found no cause for a new trial. What this Court is asked to determine is whether her ruling constitutes reversible error, and we conclude that it does not.

¶ 37. Most of our contemporary case law addresses sequestration violations in cases where the crime was not a capital offense. In Weaver v. State, this Court held that: "[t]here is a presumption that jurors follow the instructions of the court relative to their conduct during the course of a trial . . . in the absence of any evidence to the contrary we could not say that a defendant in a case less than capital was prejudiced by separation of the jury." Weaver v. State, 272 So.2d 636, 638 (Miss. 1973).

¶ 38. As early as 1870, however, Mississippi courts have zealously guarded the integrity of the jury verdict in those cases where death was a possible penalty. In the words of Woods v. State: "Jurors are as open to prejudice from persuasion as other men; and neither convenience, comfort nor economy ought to be consulted, in order to guard against it. When selected to perform the important duties of jurors, they are withdrawn from the crowd, and must, necessarily, be subjected to some wholesome legal restraints for the purpose of guarding them against improper influences, and to secure that confidence in the honesty and purity of their action, so essential to the administration of justice." Woods v. State, 43 Miss. 364, 369 (Miss. 1870).

¶ 39. That the defense failed to raise such an issue at the trial court level does not bar this Court from considering the matter at the appellate level. The trial court proceeded properly, upon being made aware of potential juror misconduct, and heard testimony to determine what, in fact, happened and whether there was any improper influence warranting a new trial. We pause here, however, to remind the trial court that in Gladney v. Clarksdale Beverage Co., 625 So.2d 407, 418-19 (Miss. 1993), we "set out the procedure for trial judges to employ in alleged juror misconduct cases." Id. at 418. Although neither party nor the trial court cited Gladney, a review of the record reveals that the proper course of action was taken after the trial court was made aware of potential juror misconduct. First, the court considered whether an investigation was warranted. In order for the duty to investigate to arise, the party alleging misconduct "must make an adequate showing to overcome the presumption in this state of jury impartiality." Id. at 419.

At the very minimum, it must be shown that there is sufficient evidence to conclude that good cause exists to believe that there was in fact an improper out-side influence or extraneous prejudicial information. . . . Although a minimal standard of a good cause showing of specific instances of misconduct is acceptable, the preferable showing should clearly substantiate that a specific, non-speculative impropriety has occurred. The sufficiency of such evidence shall be determined by the trial court if a posttrial hearing is indeed warranted under these standards. Id.

Once the trial court determined that communication was made and the nature of the communication, its duty was to decide whether it was reasonably possible that this communication altered the verdict. Id. Without using the specific words of Gladney, the trial court obviously decided that Batteast's cell phone calls, if made, did not alter the verdict.

¶ 40. We have found no precedent in our case law which specifically addresses the misconduct presently at issue. Lattimore argues that in Wilson v. State, this Court determined that not only may this Court hear the complaint, but it is reversible error when even one juror is separated and potentially subjected to outside influences in a capital case. Wilson v. State, 248 So.2d 802, 805 (Miss. 1971). No showing of prejudice is required. Id. However this reliance is misplaced. In Wilson, after the first day of trial, the court allowed the jury to disperse and go to their respective homes for the night. There is a significant difference in dispersing a capital jury for the night and one juror making a telephone call to a boyfriend. However, let there be no mistake. We in no way condone such misconduct and care should always be taken to prevent it.

¶ 41. Here, evidence was presented showing that Batteast willfully violated the court's sequestration instructions, therefore, unlike other cases this court has seen, this issue is not predicated upon mere speculation. The only evidence to the contrary came from Batteast and Morris, both of whom had every reason to lie as they were facing contempt of court charges. While there are a small number of exceptions to the rule of strict sequestration, none of these apply to the case at bar. See Glass v. State, 278 So.2d 384, 387 (Miss. 1973) (new trial denied when jury, in manslaughter case, was allowed to go to the restrooms, in the company of bailiffs). On the record before us, we find no error in the manner in which the trial court handled this matter, nor in its ruling.

¶ 42. During closing argument, the state, in recounting the identification of Lattimore by Virgie Dycus, said that "you remember Mrs. Dycus testified that the man with no shirt on, his hair was shorter. It was fixed, fixed shorter, put up somehow." At this point, the defense objected, claiming that the prosecution was assuming facts not in evidence. The trial court denied counsel's motion for a mistrial. Lattimore now appeals this issue, stating that the motion should have been granted due to the state's egregious misrepresentation. We do not agree.

¶ 43. Virgie Dycus testified on cross examination that she described the killer as "the fellow that didn't have on a shirt, and he was tall, and at that time, he had his hair fixed short, and he was-he wasn't real, real dark complexion." Because the testimony was indeed in evidence, elicited by the defense itself, there is no merit to Lattimore's argument.

¶ 44. When reviewing a denial of a motion for a new trial, which challenges the weight of the evidence, we will disturb a verdict only when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable justice. Latiker v. State, 918 So.2d 68, 72-73 (Miss. 2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss. 1997)).

¶ 45. In this case, Lattimore admitted to being at the scene of the crime. The defense presented no evidence in its casein-chief to prove that Brown, not Lattimore, was the actual murderer. Although the defense attempted to impeach each of the prosecution's witnesses, the jury ultimately found the prosecution's case to be more believable. Based upon eyewitness testimony and circumstantial evidence, the verdict cannot be said to constitute an "unconscionable justice." This issue is without merit.

¶ 46. As all of the foregoing assignments of error have been found to be without merit, we find there is no cumulative error. Branch v. State, 882 So.2d 36, 58 (Miss. 2004). Lattimore's argument that reversal is warranted on the basis of cumulative error is without merit.

¶ 47. The Washington County Circuit Court did not err in its rulings on the issues raised by Terry L. Lattimore, and we affirm his conviction and sentence.

¶ 48. CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT, WITHOUT THE POSSIBILITY OF PAROLE, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH JJ., CONCUR. DIAZ, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J.