IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2014-KA-01174-COA LONNIE SIMS A/K/A LONNIE EDWARD SIMS, JR. A/K/A “TURK” APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 04/18/2008 TRIAL JUDGE: HON. ROBERT B. HELFRICH COURT FROM W HICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES LONNIE SIMS (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF ARMED ROBBERY AND SENTENCED TO THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, W ITH FIVE YEARS SUSPENDED, AND FIVE YEARS OF POSTRELEASE SUPERVISION DISPOSITION: AFFIRMED - 06/28/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., CARLTON, FAIR AND JAMES, JJ. JAMES, J., FOR THE COURT: ¶1. On Novem

ber 17, 2006, Lonnie Sim s was indicted f or arm ed robbery in violation of Mississippi Code Annotated section 9 7-3-79 (Rev. 2014). Following a trial on March 5-6, 2008, a Forrest County jury f ound Sim s guilty of arm ed robbery

. The trial court sentenced Sim s to thirty y ears in the custody of the Mississippi Departm ent of Corrections (MDOC),with f

i ve y ears s uspended, and f ive y ears o f postrelease supervision. Sim s appeals f rom his conviction. Finding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. Ty ler Lef

an t estif ied t hat he was robbed at gunpoint in the p arking lot of a Minit Mart in Hattiesburg, Mississippi, on June 23, 2006, by Sim s and Sim s’s cousin, Jerem y W alker. Earlier that d ay , Lef

an l ef t w ork to cash his and his g irlf riend’s pay checks. Af

ter cashing the checks, Lef

an stopped at the M init Mart on Hardy Street on his way back t o work. Two m en, who were standing outside the Minit Mart, of f ered to sell Lef

an m arijuana as he was on his
way inside. Lef

an did n ot know the two m en, who w ere later identif i ed as Sim s a n d W alker. Lef an declined their of

f er and proceeded into the Minit Mart. ¶3. Lef

an p urchased a d

rink and a pack of cigarettes. As Lef an was walking back to his

car, Sim s a nd W alker approached him again. Sim s a nd W alker asked Lef an if h e would give them a ride to W endy ’s located about a block a w ay . Because Lef an did not k n o w t he two

m en and was eager to return to work, he told them that he could not give them a ride. ¶4. Lef

an unlocked his vehicle and got into the driver’s seat. A s Lef an was putting in a CD, Sim s and W alker jum ped into his vehicle a n d dem a nded that he bring them to W endy ’s. Lef an told them again that he w ould not give them a ride. Sim s, who was in the back seat, pulled out a chrom e .45 m illim eter pistol and pressed it against Lef an’s h ead. W alker, who

was sitting in the f

ront passenger seat, em

ptied Lef an’s pockets while Sim s p ointed the pistol

at L e f an. W alker took $700 cash, Lef an and his girlf

riend’s driver’s licenses, and bank deposit s lips f

rom L ef an’s pockets. A f

ter robbing Lef

a n, S i ms a n d W alker ran toward a

2creek in a wooded area behind the Minit Mart. Lef an went inside the Mi n i t M art and told the cashier that he had been robbed and to call the police. ¶5. O ffi c e r Z ach Robinson of the Hattiesburg Police Departm ent was on patrol n e a r b y a n d received a call a

bout the arm ed robbery

. O f f icer Robin s o n r e sponded and spotted two individuals m atching the descriptions of the two arm ed-robbery suspects r unning along the creek behind the M i nit Mart. Of f icer John Stringer, who was also on patrol, received a call about the two suspects being s pott e d

. O f f i cer S tringer r esponded a nd pursued the two suspects on f

o ot. ¶6. O f f i c e r Stringer f

ound Sim s about a b lock f rom the Minit Mart in the w o o d s l y i n g f ace down attem

pting to h ide. Of

f icer Stringer arrested Sim s and searched him

. During the search, O f

f icer Stringer d iscovered $145 in cash and wax that had b een cut and packaged to look like crack cocaine. Poli c e advised Sim s of his Miranda 1 r ights. Of f icer Stringer transported Sim s to the police departm ent f or questioning by

investigators. ¶7. Som etim e af

ter turning Sim s over to investigators, Of f icer Stringer was called back

to transport Sim s to the county jail to be b ooked o n charges of arm ed robbery and p ossession of a counterf

eit c ontrolled s u

bstance with intent to d istribute. Of f icer Stringer testif

ied that he d id not ask Sim s a ny questions or solicit any inf orm ation f

rom him while t ransporting h im

to the county jail. Of

f icer Stringer testif

ied that Sim s was upset about going to jail and gave him the im

press i o n t h a t h i s chief concern was related to the charge of possession of the counterf eit controlled s ubstance with intent to distribute. During the transport, Sim s m ade

1 M ira n d a v. A rizo n a , 3 8 4 U

. S . 4 3 6 (1 9 6 6 ). 3a voluntary , u n s o l i c i ted statem ent to Of f icer Stringer that the $ 145 cash had not been acquired f

rom selling drugs, but that the cash was f rom the arm ed robbery

. ¶8. L e f

a n w e n t t o t h e police departm e nt and gave a written s t atem ent describing t h e robbery

. Lef

a n also identif

ied Sim s in a photo lineup as the individual w ho had pressed the pistol to h i s head. However, Lef an could not identif

y W alker i n a photo lineup. On June 28, 2006, a nearby hom eowner discovered the pistol that was used in the arm ed robbery wrapped i n a t

- s h i r t i n his shed, which was l ocated about a b lock a way f r om the Minit Mart. A f ingerprint taken f

rom the pistol m atched W alker’s f ingerprint. ¶9. Sim s took the stand in his def ense. Sim s denied having any i nvolvem ent in t he arm ed robbery

. He adm itted t o being with W alker at the Minit Mart. He also a d m itted he got into Lef an' s car f or the purpose of what was supposed t o be a drug deal. However, Sim s testif ied that as m oney was being exchanged, “a c o m m otion [ too k ] p l a c e .” Sim s testif ied that
“W alker sort of attack[ ed] the victim and kind of grab[ bed] him by his shirt and snatch[ ed] the m oney out of his hand.” Sim s testif ied that he g ot out of t he car and ran because he was scared. Sim s also testif

ied that he did not se e o r h andle a gun at any point during the

encounter with Lef

an. Following a trial, the jury returned a guilty

verdict against Sim s f

or

arm ed robbery

. Sentencing was def erred to April 18, 2008, pending the trial court obtaining a presentence report. ¶10. Prior to the trial court’s im posing i ts sentence at the hearing , S i ms ’ s t r i a l a ttorney inf orm ed the t rial court that Sim s wished to ha v e h i m d i sm issed a s his counsel. S im s told the trial court that he “ already h a[ d] another attorney .” However, Sim s c ould not identif y his

4n ew supposed a ttorney , who was not p resent a t the h earing. W hen a sked wh o h i s n e w

attorney wa s , S i ms responded: “I don’t exactly know his n am e right now.” Sim s’s trial attorney stated that he h ad prepared a m o tion f or a new trial, and had planned on going over it with Sim s af

ter sentencing. The trial c ourt proceed ed with sentencing. Sim s was sentenced to t h irty y ears in the c ustody of the M DOC, with f ive y ears suspended, and f ive

y ears of postrelease supervision. ¶11. Af ter the trial court a nnounced the sentence, Sim s’s trial attorney a sked to be excused
f rom the m atter. T h e trial court r e s p onded: “ A s soon a s [ another attorney ] enters an
appearance in this m a tter[ .]” On April 2 9 , 2 008, Sim s’s trial attorney f iled a m otion f

o r a

new trial. Sim s’s trial a ttorney a rgued that Sim s w a s entitled to a new trial because he was denied his constitutional right to a f air and im partial j ury due to racial discrim ination and the verdict was against the o v e r w h e l m ing weight of the e v idence. On June 11, 2008, the trial court entered a f

inal judgm ent of

conviction and sentence. ¶12. On Decem

ber 23, 2013, Sim s f

iled a pro se application f or the Mississippi Suprem e Court’s leave to f

ile a m otion f

or postconviction relief (PCR). Sims v. State , 2013-M-02135.
On February 6, 2014, the suprem e court dismissed Sim s’s application without prejudice because he had never f

iled a direct appeal of

his conviction. ¶13. On May

23, 2014, Sim s f

iled a pro se m otion f

or a new trial or, in the alternative, a judgm ent notwithstanding t he v erdict (JNOV). Sim s argued that h i s c onstitutional dueprocess rights were violated; he received inef f ective assistance of counsel; there was newly discovered evidence; the p r osecution f ailed to p r o d u c e W alker a s a witness; there was

5insuf

f i c i e n t e v i dence supporting the verdict; and the verdict was c ontrary to the overwhelm ing weight of

the evidence. ¶14. On August 8, 2 014, the trial court entered a n order deny ing S im s’s m otion f or a new trial or, in the alternative, a JNOV. Because the trial court d id not specif y that the order only pertained to Sim s’s pro s e m otion f iled on May 23, 2 014, we construe the order as deny ing both Sim s’s pro se m o tion f iled on May 23, 2 014, and Sim s’s m otion f or a new trial f

iled by his trial attorney o n A p r i l 2 9 , 2008. On August 22, 2014, Sim s f iled a notice of appeal in

com pliance with Mississippi Rule of Appellate Procedure 4(e). 2 The trial court allowed S im s
to proceed in f

orm a pauperis. On May 21, 2015, t his Court granted Sim s’s m otion to appoint appellate counsel. ¶15. Sim s’s a

ppointed appellate counsel f iled a brief on his b ehalf raising one assignm ent of error, which i s w hether the v erdict was contrary to the overwhelm ing weight of the evidence. Sim s f

i led a pro se supplem ental brief to b e considered along with his appellate counsel’s brief

. Sim s raises f

our a dditional assignm ents of error in h is p ro se supplem ental brief , which are: Lef

an’s testim ony was “duplicitous” a nd “im perm issibly suggestive”; S im s

was denied his constitutional right to a f air and im

p artial jury ; he r e c e i v ed inef f ective

2 R u le 4 (e) p ro v i d es in p art: “If a d ef en d an t m a k e s a t im ely m o tio n u n d er th e U n if o rm R u les o f C ircu it a n d C o u n ty C o u rt P ractice ( 1 ) f o r j u d g m e n t o f acq u ittal n o tw it h s t a n d i n g th e v erd ict o f th e j u ry , o r (2 ) f o r a n ew trial u n d e r R u le 1 0 .0 5 , th e tim e f o r ap p eal f

o r all p arties sh all ru n f

ro m th e en try o f th e o rd er d en y in g su c h m o tio n .” B ef o re th e j u d g m en t o f co n v i c t i o n a n d sen ten ce w a s en tered o n Ju n e 1 1 , 2 0 0 8 , S im s’s trial atto rn ey h a d f iled a m o tio n f o r a n e w t r i a l o n A p r il 2 9 , 2 0 0 8

. B ecau se t h e j u ry retu rn ed its g u ilty v erd ict o n M arch 6 , 2 0 0 8 , an d S i m s w as v erb ally sen ten ced o n A p ril 1 8 , 2 0 0 8 , w e c o n sid er th is m o tio n to b e t i m e l y u n d er U n if

o rm C ircu it a n d C o u n ty C o u rt R u le 1 0 .0 5

. T h e t im e f o r ap p eal b eg an to ru n w h en t h e trial co u r t e n tered its o r d er d en y in g S im s’s m o tio n f o r a n ew trial o r, in th e altern ativ e, a JN O V o n A u g u st 8 , 2 0 1 4

. 6assistance of counsel; and there is newly discovered evid e nce requiring a reversal of his

conviction. Finding no error, we af f irm

. DISCUSSION
I. Weight of the Evidence ¶16. Sim s argues that the verdict was contrary to the overwhelm ing weight of the evidence. Sim s contends that the v erdict was unsupported by credible evidence because the Minit Mart cashier testif

ied that f if teen to twenty m i nutes had elapsed between Lef an m a king his purchase and returning inside t h e s t o r e to tell the cashier that he h ad been r obbed. S im s claim s that this t estim ony c orroborates his testim ony that his and W alker’s e n counter with Lef an was supposed to be a drug deal but w ent wrong. Sim s argues that his testim ony was also corroborated by

his f ingerprints not f

ound on the p istol. Sim s also argues that Of f icer Stringer’s testim ony about Sim s’s unsolicited statem ent regarding t h e s ource of the $145 during his transport to the county jail was “dubious at best.” ¶17. “W hen reviewing challenges t o the weight of the evidence, we will o n l y d i s t urb a verdict when i t i s s o contrary to the overwhelm ing w e i ght of the evidence that to allow it to stand w ould sanction an unconsciona b l e injustice.” Vaughn v. State , 926 S o. 2d 269, 271 (¶4) (Miss. C t. App. 2 006) (quoting Bush v. State , 8 95 So. 2 d 836, 844 (¶18) ( Miss. 2005)). “The power to grant a n e w t rial should be i nvoked only in exceptional cases in which the evidence preponderates h eavily against the verdict.” Bush , 895 So. 2d at 844 (¶18) (quoting Amiker v. Drugs for Less Inc ., 796 So. 2d 942, 947 (¶18) (Miss. 2000)). ¶18. Lef

an unequivocally identif

ied S im s i n a photo lineup and at trial as the individual

7who pressed a p i stol to his head while W alker e m ptied his pockets. Of

f icer Stringer testif

ied that Sim s m ade an unsolicited, voluntary statem e nt d uring t he t ransport to the county jail that the $145 cash had com e f rom the arm ed robbery and not f rom selling d

rugs. “ C o n f

l icting testim o ny does not evince overwhelm ing evidence; where the v erdict turns on the credibility of conf licting testim ony and the credibility of t h e w itnesses, it is the jury ’s duty to resolve the conf lict.” Brown v. State , 995 So. 2d 698, 702 (¶13) (Miss. 2008) (citing Nicholson v. State , 523 So. 2d 68, 71 (Miss. 1998)). ¶19. The jury properly resolved the conf licting testim ony a nd f

ound Sim s guilty of

arm ed robbery . Viewing the evidence presented at trial in the l ight m ost f avorable to the verdict,

we f ind that Sim s’s guilty verdict was not against the overwhelm ing weight of the e vidence.
II. Lefan’s Testim ony ¶20. S i ms a r g u e s t h a t t h e Lef an’s testim o ny was “duplicitous” and “im per mi s s i b l y suggestive.” Sim s argues that Lef an’s testim ony

was “duplicitous” because he claim s that
L e f a n l ied about n ot having been previously convicted of a f e lony

. Sim s does not explain how Lef an’s testim ony

was “im perm issibly

suggestive.” ¶21. As f

or Lef a n’s testim ony being “duplicitous,” it is well settled that “[ i]ssues regarding the weight and credibility of the evidence are f or the jury to resolve.” Eakes v. State , 665 So.
2 d 8 5 2 , 8 72 (Miss. 1995). On cross-exam ination, Lef an testif ied that he had never be e n convicted of a f

elony

. There is no support in the record to suggest otherwise as Sim s asserts in his brief

. This argum e nt is without m e rit. ¶22. Sim s f

ails to provide any s upp o r t f o r h i s b are assertion t hat Lef an’s testim ony

was

8“im

permi s s i b ly suggestive.” Presum ably , Sim s is challenging Lef an’s photo lineup identif ication. ¶23. “For an identif

ication ( m ade o u t of court or in court) to be e xcluded, it m ust be the result o f a n im

perm issibly suggestive lineup and the identif i cation m ust be unreliable. Butler

v. State , 102 So. 3d 260, 264 ( ¶8) (Miss. 2012) (citing Y ork v. State , 4 13 So. 2d 1372, 1383 (Miss. 1 9 82)). “A lineup or s eries of photographs is im perm issibly suggestive if t he accused, when com

pared wit h t h e others, is conspicuously singled out in som e m anner f rom the others, either f

rom a ppearance or statem ents by an o f f icer.” Id. at (¶9). There is nothing in the record supporting the argum e nt that Sim s was c onspicuously singled out in som e m anner f rom the others i n the photo l ineup, either f rom appearance or statem ents by an of f icer. This
argum ent is also without m erit. ¶24. Sim s also claim s in his brief that the State knew Lef an had lied on the witness stand, and withheld exculpatory inf orm ation, nam e ly Lef

an’s alleged p rior f

elony conviction. This claim is also unsupported by

the record and without m erit.
III. Fair and Im partial Jury ¶25. Sim s argues that h e was denied a f air and im partial jury

because the State exercised
f our of its perem

p tory strikes in a racial l y d i s c r i m i natory m anner to exclude Af rican
Am ericans f

rom the jury in violation o f Batson v. Kentucky, 476 U .S. 79, 96 (1986) (holding it u nconstitutional f

or either p arty to strike potential j urors f o r racially bias e d p u r poses). Sim s argues that the trial court e rred by accepting the State’s prof f ered race-neutral reasons f or exercising its perem

ptory strikes.

9¶26. The Mississippi Suprem e Court has provided a three-step i nquiry f or courts to f

ollow when analy

zing a claim of racial discrim i natio n in jury s e lection under the g uidelines of
Batson : First, the party objecting to the perem p tory strike of a potential j u r o r m ust m ake a prim a f

acie showing that race was the criterion f or the s t rike. S econd, upon such a s howing, the burden shif ts t o the S tate t o articulate a race-neutral reason f or e xcluding that particular juror. Finally , a f ter a race-neutral explanation has been of

f e red by the prosecution, the trial c ourt m ust determ ine whether the o b

j e c ting party has m et its burden to prove that there has been purposef ul discrim ination in the exercise of the perem p tory strike, i.e., that the reason given was a pretext f or discrim ination. Pitchford v. State , 45 So. 3d 216, 224 (¶14) (Miss. 2010) (citation om itted). ¶27. “On appellate review, a trial court' s determ inations u nder Batson are a c corded great def e r ence because they are l argely based on credibility .” Berry v. State , 802 So. 2d 1033,
1037 (¶9) (Miss. 2001). “A [ trial] court' s ruling on a Batson challenge will not be overturned unless t he record indic a t e s the ruling was clearly erroneous or against the overwhelm ing weight of the evidence.” Cannon v. State , 141 So. 3d 442, 444 (¶9) (Miss. Ct. App. 2013) (citing States v. State , 88 So. 3d 749, 754 (¶18) (Miss. 2012)). ¶28. At trial, Sims ma d e a Batson m otion arguing that t he State had used its perem ptory challenges in a racially discrim inatory m a nner b y striking f our Af rican A m e rica n j u r ors, specif ically jurors 3, 15, 27, and 31. The prosecutor t hen provided a race-neutral reason f or each perem

ptory strike that he had exercised on the f o ur Af r ican Am erican jurors. ¶29. The prosecutor stated that he struc k j u r o r 3 b e c a u s e s h e m ade a bsolutely no ey e
contact and was nonresponsive. The prosecutor a lso stated that juror 3 would not look at h im when h e a d d r e s s e d her. The prosecutor stated that he struck juror 15 because she was

1 0em

ploy e d as a m anager and cashier at a nearby Minit Mart i n the sam e area where Sim s was residing. T h e p r o s e c u t or stated that he s truck juror 27 because she indicated that she was hard o f hearing. The prosecutor stated t hat h e s truck juror 31 because she did n ot com plete her juror inf

o rm ation card, and w as nonresponsive to his q uestions while entirely r esponsive

to the d ef

ense counsel’s q

uestions. T he prosecutor also described juror 3 1 as behaving overly f riendly to the def

ense and as b eing agreeable to e very thing the def

ense counsel had said. ¶30. The trial court accepted the prosecutor’s reasons f o r striking e a ch of the f

our Af rican
Am erican jurors as b eing race-neutral. W e f ind that the trial c ourt did not abuse its discretion in accepting the State’s race-neutral reasons f or striking t he potential jurors. Accordingly , Sim s was not denied his constitutional right to a f a ir and im

partial jury

. IV. Ineffective Assistance of Counsel ¶31. Sim s argues t hat he received inef f ective assistance of counsel at trial. S im s argues his trial counsel was inef

f ective because h e “f

ailed to have the prosecution witnesses investiga t e d (as t o who[ ] they really were) as to their background, e tc[ .] [ a]s [ Lef an] lied about having n ever been convicted of a f elony , etc.” Sim s also argues that his trial counsel

w a s inef f ective because he did not object to O f f icer Stringer' s testim o ny regarding Sims ' s
statem ent that he had obtained the $145 n ot f rom selling drugs, b ut instead, f rom the robbery

. ¶32. “ G e n erally , inef

f ective a ssistance claim s ar e m o r e a p p r o p r i a t e l y b r o u g h t d

u r i n g [P C R ] proceedings.” Havard v. State , 9 4 So. 3d 229, 240 (¶35) (Miss. 2012) (citing Archer v. State , 986 So. 2 d 951, 955 (¶15) (Miss. 2008)). “[ W ]here t he record cannot support an inef f ective

1 1assistance of counsel c laim o n d i rect appeal, the appropriate conclusion is to d eny relief , preserving the def

endant' s right to argue the sam e issue through a [ PCR m otion].” Brandon

v. State , 109 So. 3d 128, 1 34 (¶23) (Miss. Ct. App. 2013) (citing Aguilar v. State , 847 So. 2d 871 (¶17) (Miss. Ct. App. 2002)). ¶33. Sim s’s i nef

f ective-assistance claim s involve questions of t r i a l c o u n s e l ’ s a l l e g ed inaction and would require inf orm ation outside the r ecord. W e f ind that this issue c annot be
f ully addressed on d irect appeal, a nd would be m ore appropriately raised in p ostconviction (PCR) p roceedin g s . S

e e N eal v. S tate , 15 So. 3d 388, 405-06 (¶42) (Miss. 2 009) (holding that a n inef

f ective-assistance-of

-counsel claim would be m ore appropriately r aised in PCR
p r oceedings because it i nvolved questions of inaction by trial counsel, w h ich req u i r e d inf orm ation outside the record). W e deny r elief on t his assignm ent of error without prejudice so that Sim s, if

he desires to do so, m ay

raise his claim

in a PCR m otion. 3
V. New ly Discovered Evidence ¶34. Sim s argu e s t h a t h e h a s n e w l y d i scovered evidence requiring a reversal of his conviction. Specif

ically , Sim s relies on a purported af f idavit signed by Jerem y W alker, dated May 2 , 2011. The one-page af f idavit essentially

m irrors Sim s’s testim ony at trial. ¶35. A def

endant seeking a new trial based on newly d iscovered evidence m ust m ake f

our showings: (1) the new e vidence was discovered af ter the trial; ( 2 ) i t c o u l d not by due

3 “U n d er th e M i ssissip p i U n if o rm P o st-C o n v ictio n C o l lateral R elief A ct

. . . , a P C R m o tio n m u st b e f iled w ith i n th ree y ears af

ter th e p etitio n er' s d irect ap p eal is ru led u p o n b y [ th e M ississip p i S u p rem e] C o u rt o r, w h ere a p etitio n e r h as p lead ed g u ilty , [ it] m u st b e f i led w i th in t h ree y ears af

ter en try o f t h e j u d g m en t o f co n v ictio n .” Jo n es v. S ta te , 1 1 9 S o . 3 d 3 2 3 , 3 2 5 (¶6 ) (M iss. 2 0 1 3 ) (citin g M iss. C o d e A n n . § 9 9 -3 9 -5 (2 ) (S u p p . 2 0 1 2 )). 1 2d iligence have been discovered prior to trial; (3) it is m aterial to t he issue and not m erely

cum ulative or im

peaching; and (4) it will probably produce a dif f e r ent result o r verdi c t in the new trial. Johnson v
. State , 110 So. 3d 353, 354-55 (¶5) (Miss. Ct. App. 2013) (citations

om itted). “Relief m

ust be denied if the [ def en d a n t ] f a ils to m e et any one o f these f our elem ents.” Id. at 355 (¶5). ¶36. Sim s f

a ils to show h ow by d

ue diligence this af

f idavit could not have been discovered prior to trial. Also, the af

f idavit m erely echoes Sim s’s testim ony at trial and would have been used f or i m peachm ent purposes, at best. W e also cannot say that the a f f i d a vit would probably produce a dif

f erent result or verdict in a new trial. T his assign me n t o f e r r or is without m erit. ¶37. T H E J U D G M E N T O F THE FORREST COUNTY CIRCU I T C O U R T O F CONVICTION OF ARMED R OBBERY AND SENTENCE OF THIRTY YEARS IN T H E C U S T O D Y O F T H E M I S S I S S I P P I D E P A R T M E N T O F C O R R E C T I O N S , W I T H F I V E Y E A R S S U S P E N D E D , A N D F I V E Y E A R S O F P O S T R E L E A S E SUPERVISION, IS A FFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.
L E E , C . J . , I R

V I N G A N D G R I F F I S , P . J J . , B A RNES, I SHEE, CARLTON, FAI R , WILSON AND GREENLEE, JJ., CONCUR.

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