IN THE SUPREME COURT OF MISSISSIPPI

NO. 96-KA-00954-SCT

CHARLOTTE PITTS a/k/a CHARLOTTE HENSLEY

PITTS

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 10/15/96

TRIAL JUDGE: HON. JOHN LESLIE HATCHER

COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: AZKI SHAH

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: SCOTT STUART

DISTRICT ATTORNEY: LAURENCE Y. MELLEN

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 04/16/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 5/7/98

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

McRAE, JUSTICE, FOR THE COURT:

¶1.Charlotte Pitts appeals the October 15, 1996 order of the Coahoma County Circuit Court placing

her in the custody of the Mississippi Department of Corrections after a jury found her guilty of two

counts of kidnapping. Finding that there is no merit to her contention that the comments and conduct

of the circuit court resulted in an unfair trial, we affirm her conviction and sentence.

I.

¶2. Alicia and Robert "Duke" Pitts are the minor children of Charlotte Hensley Pitts. The children

were placed in the custody of the Mississippi Department of Human Services pursuant to an October

12, 1995 order of the Coahoma County Youth Court, adjudicating them "neglected/abused."(1) Duke,

two-and-one half years old at the time of these proceedings, apparently had been severely beaten by

Pitts' boyfriend, Kelly Bishop. On January 31, 1996, Pitts' mother, Betty Hensley, was awarded

custody of Duke. Alicia remained in DHS custody but in "relative placement" with Hensley.(2)

¶3. In April, 1996, after Pitts returned to Clarksdale from Dallas, where she had been living,
Department of Human Services social worker, Vidale Washington, authorized an arrangement

whereby Pitts was permitted to live with her mother and help take care of the children. She was not

allowed to remove them from the house without supervision.

¶4. Hensley left for a workers' compensation hearing in Oklahoma on Sunday, April 28, 1996, with

plans to return on Tuesday evening, April 30. Pitts was to take care of the children and Hensley's

brother-in-law, the children's great uncle and neighbor, was checking in with them to make sure that

everything was all right and that they had what they needed, since Pitts had no car. Late Monday

night, he went over to the house to check on them, stating "I looked through the window because I

couldn't get nobody to the door and it was some quilts and pillows and stuff laying in the floor and I

thought they were asleep because the TV was on in the living room and the kitchen light was on . . .

." However, on Tuesday morning, when he went to pick Alicia up to take her to school, the TV was

still on, the back door was ajar and the house was empty. He immediately notified DHS that Alicia

and Duke were missing.

¶5. Alicia Pitts testified that Kelly [Bishop] picked up her, her mother and her brother in a truck

parked in an alley. Her mother had told her that they were going for a walk. She testified that she did

not want to get into the truck and tried to get away from her mother when she saw Bishop. When

they got in the truck, her little brother started shaking ,but didn't say anything. Alicia indicated that

her clothes were already in the truck. They went first to Tulsa, Oklahoma and then to Branson,

Missouri. She testified that she wasn't allowed to use the telephone to call her grandmother.

¶6. On May 25, 1996, the Branson, Missouri police called Hensley at work. Hensley and Alton Bruce

retrieved the children from Branson the next day.

¶7. Pitts, along with Robert Kelly Bishop, was indicted(3) on June 10, 1996 by a grand jury of the

Coahoma County Circuit Court for the kidnapping of her children, Alisha [sic] and Robert Pitts, from

the custody of their grandmother, Betty Hensley. She entered a plea of not guilty to both counts of

the indictment. A jury of the Coahoma County Circuit Court found her guilty as charged. The circuit

court denied her motion for a new trial, or, in the alternative, for acquittal notwithstanding the verdict

on August 21, 1996. On October 15, 1996, after a Presentence Investigation Report had been

conducted, the circuit court entered an order sentencing her to serve an eight-year sentence for each

of the two kidnapping charges. He ordered the sentences to be served concurrently, with six years

suspended, subject to conditions specified by the court, after two years are served. The MDOC was

directed to provide Pitts with treatment and rehabilitation for alcohol and/or drug abuse.

II.

¶8. Although not expressly stated in the record, Pitts' defense to the kidnapping charges appears to be

that she didn't know that she couldn't take her children from her mother's house without

supervision.(4) Pitts primarily contends that the circuit court erred in referring to the orders placing

Robert "Duke" Pitts in the custody of the Department of Human Services, and then, in his

grandmother's custody as "two lawful orders of the Youth Court of Coahoma County, Mississippi."

She asserts that this was an improper comment on the weight of the evidence that was prejudicial to

her case.

¶9. In Weaver v. State, 497 So. 2d 1089 (Miss. 1986), this Court stated, "[t]he traditional view in
this state that a trial judge should not comment upon the weight of the evidence has by no means

been discarded, although it is not a prohibition enforced strictly and mechanically as perhaps was

once the case." Weaver, 497 So. 2d at 1094 (citations omitted). In that case, when overruling

defense counsel's objection to the use of the word "burglary" in a question put to a witness whose

testimony allegedly had not yet revealed that a burglary had occurred, the trial judge stated, "There

was a burglary in his testimony in Maben, Mississippi. There's been a lot of testimony about it." Id. at

1093. We found that the comment was "within the scope of those the trial judge was privileged to

make." Id. at 1094.

¶10. Likewise, we do not think that the trial judge exceeded the scope of his privilege referring to

two orders of the Coahoma County Youth Court as "lawful orders" of that court. There is a

presumption that orders and judgments of the lower courts are correct. Artis v. State, 643 So. 2d

533, 535 (Miss. 1994); Clark v. State, 503 So. 2d 277, 280 (Miss. 1987). See also Walker v. Jones

County Community Hosp., 253 So. 2d 385, 385(Miss. 1971)("We indulge the presumption that the

judgment below was correct."). Thus, we do not construe the circuit court's mention of "lawful

orders" as a comment on the weight of the evidence; rather, it is well within the scope of comments a

judge is entitled to make.

III.

¶11. In her Summary of the Argument, Pitts further contends that she was prejudiced by the circuit

court's threat to hold her attorney in contempt of court. While she does not develop the argument any

further in the body of her brief, she quotes extensively from Waldrop v. State, 506 So. 2d 273 (Miss.

1987), where this Court addressed the effect upon the jury of when "the judge 'lost his cool', and

advised defense counsel that he was going to spend some time as a guest of the county government."

Waldrop, 506 So. 2d at 276. While the Court was sympathetic with the lower court judge's outburst,

it nonetheless noted its disapproval of such conduct in the presence of the jury. Id. As distinguished

from Waldrop, however, the record in the case sub judice indicates that the circuit court's comment

clearly was made at the bench and not within the hearing of the jury. Further, "'counsel may not

complain of slight or not seriously prejudicial impropriety in remarks or comments by the court where

they are provoked by himself." Young v. State, 679 So. 2d 198, 204 (Miss. 1996)(quoting Parker v.

State, 401 So. 2d 1282, 1285 (Miss. 1981)). It was only after admonishing Pitts' attorney to answer

his question and not to argue with him that the circuit court stated, "Let's go back in chambers. I'll

hold you in contempt with that attitude." Because the remark was made outside the hearing of the

jury and was provoked by the attorney's behavior, the jury certainly was not prejudiced by the judge's

comment.

IV.

¶12. Pitts further argues that the circuit court erred in excluding evidence of whether she received

notice of the Youth Court proceedings that resulted in her children's placement in the custody of the

Department of Human Services and their grandmother. As part of her defense that she couldn't

kidnap her own children, Pitts asserts that the dispositional orders of the Youth Court are invalid

because she didn't receive notice of the proceedings. The record indicates that this matter was

addressed in some unspecified pre-trial ruling. Pre-trial motions on behalf of the defendant were not

designated for appeal and thus, are not included in the transcript for review by this Court nor do the
Clerk's Papers include copies of any pre-trial motions made on Pitts' behalf. The burden is on the

defendant to make a proper record of the proceedings. Jackson v. State, 689 So. 2d 760, 764 (Miss.

1997); Russell v. State, 670 So. 2d 816, 822 n.1 (Miss. 1995); Lambert v. State, 574 So. 2d 573,

577 (Miss. 1990). This Court "cannot decide an issue based on assertions in the briefs alone; rather,

issues must be proven by the record." Medina v. State, 688 So. 2d 727, 732 (Miss. 1996); Robinson

v. State, 662 So. 2d 1100, 1104 (Miss. 1995). Accordingly, the matter is not properly before this

Court.

V.

¶13. We find no merit in Pitts' claims that she was prejudiced by the comments and actions of the

circuit court. The judge's reference to "lawful orders" of the Youth Court was well within his

discretion since there is a presumption that court orders are valid. The judge's admonitions to Pitts'

attorney were not made within the hearing of the jury and apparently were provoked by the attorney,

himself. Finally, Pitts has not provided this Court with a sufficient record to support her claim that

the circuit court erred in not admitting evidence of whether she had received notice of the Youth

Court proceedings. Accordingly, we affirm the decision of the circuit court.

¶14. COUNT I: CONVICTION OF KIDNAPPING AND SENTENCE OF EIGHT (8) YEARS

WITH SIX (6) YEARS SUSPENDED AFTER HAVING SERVED TWO (2) YEARS IN THE

CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH

CONDITIONS, AFFIRMED. COUNT II: CONVICTION OF KIDNAPPING AND

SENTENCE OF EIGHT (8) YEARS WITH SIX (6) YEARS SUSPENDED AFTER SERVING

TWO (2) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF

CORRECTIONS, WITH CONDITIONS, AFFIRMED. SENTENCE IN COUNT II SHALL

RUN CONCURRENT TO SENTENCE IN COUNT I.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, ROBERTS, SMITH, MILLS

AND WALLER, JJ., CONCUR.

1. A verbal order was given by the Court on September 2, 1995 to get the children into DHS custody

pending a September 6, 1995 shelter hearing.

2. Alicia, born June 2, 1987, previously had been in her mother's custody pursuant to a divorce

decree entered by the District Court in and for Tulsa County, Oklahoma on December 2, 1991. Her

father, Alan Mart Pitts, apparently neither had paid child support nor exercised his visitation rights.

Duke, whose father's identity is not revealed in the record, was born January 31, 1993.

3. The indictment ultimately was amended to delete the name of Pitts' boyfriend.

4. Opening and closing arguments were not transcribed or made part of the record. Pitts based her

motion to quash the indictment on her assertion that "a mother can't kidnap her own children." In her

brief, she states, "The entire defense was predicated on her not receiving Notice of the hearings as

well as the subsequent Notices of said Orders."