IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2018-KA-00183-COA DEUNTA D. GARDNER A/K/A DEUNTA DWARD GARDNER A/K/A DEUNTA GARDNER APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 01/11/2018 TRIAL JUDGE: HON. SMITH MURPHEY COURT FROM W HICH APPEALED: TALLAHATCHIE COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: MATTHEW

W YATT W ALTON DISTRICT ATTORNEY: JOHN W . CHAMPION NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 12/10/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE BARNES, C.J., McCARTY AND C. WILSON, JJ. C. WILSON, J., FOR THE COURT: ¶1. A jury convicted D eunta Gardner of conspiracy to commi t a g g r a v a t e d a s s a u l t , aggravated assault, kidnapping, and p ossession of a f irearm by a f

e l on. The circuit court sentenced Gardner to ser v e f i v e y ears f

or conspiracy , twenty y ears f or aggravated assault, thirty y ears f

o r kidnapping, a nd ten y ears f or possession of a f

irearm by a f

elon, in the custody of the Mississippi Departm ent of C orrections ( MDOC). T he sentences were set to run consecutively . Aggrieved, Gardner appeals his convictions. Gardner contends that he is warranted a new t rial because the victim s’ in-court and o ut-of -court identif

ications of h ims h o u l d h a v e b e e n s u p p ressed; that prejudicial testim ony about prior crim inal acti v i t y r e n d e r e d his trial unf

air; and, as raised i n a separate pro se brief , that he was d eprived of a f a i r trial and due process because his out-of -state witnesses did not receive adequate travel f unds. Finding no reversible error, we af f irm Gardner’s convictions and sentences. FACTS AND PROCEDURAL HISTORY ¶2. Deon Gray e r lived in a h ouse in Tutwiler, Mississippi, with his aunt, Shirley Pugh, and G ardner’s brother, Deway n e Gardner. O n July 28, 2015, Dam e on Hale cam e o ver to the residence. W hile at Gra y er’s residence, Hale, Pugh, and Deway n e had a conversation regarding a f

irearm P ugh o wned. A phy sical altercation b roke out betwe e n Hale and Deway ne as a result of t his conversation

. W hen the f ight e n ded, with Hale the apparent victor, Pugh m ade every one leave the hous e. Bef ore d eparting, D eway

ne allegedly told Hale, “Don’t worry about it, I’ll b e back. I’m going to get m y brother and he [ i s] going to kill y ou; he already

done killed som ebody bef ore.” ¶3. Later that evening, G ray e r returned t o the residence and was the only one i n the hom e when Deway

ne al s o r eturned that night with Gardner. Deway ne and Gardner entered the house, with Gardner carry ing a f irearm

. T he hom e was dim ly lit with the o nly light com ing f rom the kitchen a nd a lighted aquarium

. Gardner and D eway ne f ound Gray er in the living

room . G ardner pointed his pistol at Gray er’s h e a d a n d began asking Gray er questions. Regardless of whether Gray er a nswered, Gardner repeatedly struck Gray er o n the side of his f ace with the p istol. G ray er t ried to get the g un out of Gardner’s hands, resulting in a tussle, but Gray er was eventually subdued. Deway ne and Gardner f

orced Gray er o nto the ground,

2where Gardner p r oceeded to b i n d Gray er’s hands and f eet w ith duct t ape. The brothers placed duct tape over Gray er’s m o uth. ¶4. The r ecord ref

lects that during this tim e, Hale rec e i v e d a call f r om Gray er’s phone, but Gra y e r did n ot say any thing when H ale answered. Hale then called back, and Gray er

answe r e d b ut again did not say any thing. Hale d ecided to check on Gray e r and drove to Gray er’s residence. W hen Hale arrived, he saw Deway ne’s veh i c l e p arked outside. Af ter honking the h orn, Hale went to the f ron t d o o r a n d k

nocked. W h en h is knocks went unanswered, he entered the house. As Hale entered , G a r d n e r s h ot at Hale several tim es. Hale shot back, hitting Deway ne. Hale was shot several t i m e s , e v entually dropping to the f loor and, in his w ords, “play ing dea d

. ” W h i l e H ale was ly ing on the ground wounded, Gardner cam e up and kicked h im in the h e a d

. W h e n k i cked, Hale looked straight up and “looked at [ Gardner] ey e to ey e.” Hale then watched as Gardner stuck a p istol into Hale’s

m outh and pulled the t rigger, shooting Hale two m ore tim es. In a l l , H a l e w a s shot seven tim es. Still conscious, Hale observed Gardner and Deway ne retreat f

arther into the house. ¶5. Gardner and Deway ne e ventually lef

t through the back door and f led in their vehicle. Gray er’s neighbor, A ngela Stovall, heard the gun shots a nd observed Gardner and Deway ne leaving Gray er’s house as she was returning hom e f rom work. A s Stovall h urriedly tried to

u n l o c k h e r d o o r , she saw Gardner point his gun at h er. She was able to e nter her hom e, where she rem ained until she heard Deway ne and G ardner drive of

f

. S tovall t hen saw Gray er hopping across the street, still bound by duct tape. Stovall cut Gray er loose f romhis ducttape bindings and then f

ound a b loodied H ale sitting in his v ehicle. A f ter helping Hale out

3of his v ehicle, S tovall went f or the police, and o f

f icers arrived on the scene shortly thereaf ter. ¶6. Deway

n e and Gardner w e r e q u i c k l y i d e n t i f i e d as suspects. Bry an Sullivant, an investigator with the Mississippi Bureau of Investigation, assisted with the investiga t i o n . Agent Sullivant presented Gray er with a photo lineup containing Gardner’s picture. Agent Sullivant told Gray er, “[ I ]f y ou see the guy , circle him , c i rcle the pi c t u r e ; a n d i f y ou don’t know or if y ou’re unsure, just don’t guess, only [ circle] if y ou know.” Gray e r im m ediately identif ied Gardner a s being involved in t he incident. Gardner’s f ingerprints were also f

ound on the duct tape used to bind Gray er. ¶7. On February 7, 2 0 17, a T a l l a h a t c h i e C o u n t y g r a n d j u r y i n d icted Gardner f or conspiracy to com m it a ggravated assault, aggravated assault, kidnapping, and possession of

a f irearm by a convicted f

elon. O n April 7, 2017, Gardner f iled a pretrial m o tion to suppress Gray er’s photo identif

ication, arguing t hat the l ineup was highly suggestive and prejudicial. ¶8. Af ter hearing argum ent on Gard n e r ’ s mo t i o n o n April 17, 2017, the circuit court denied the m ot ion to s uppress, f inding that the “series o f photographs [ were] not im p erm issibly suggestive.” The circuit court stated that “when looking at the individuals that

are in these six photographs, they are all extr e me l y s i milar a nd

. . . there’s nothing that conspicuously singles o ut a ny of t hem .” The circuit c ourt noted that “it would take a person having v ery good knowledge of the person being selected to pick o ut a c ertain individual.” The circuit court also f

o und that the lineup p rocedure em p loy ed b y Agent Sullivant was not im p er mi s s i b l y suggestive. The court then d eterm i ned that G r ay er’s o ut-of -court

4identif

ication was reliable under Biggers , 1 stating: [ Gray er] knew [ Gardner;] j ust didn’t know [ Gardner’s] nam e . . . w hen [ Gray er was] being assailed [ he had an] easy opportunity

to direct his attention at his assailants

. . . . There was no hesitation on the part of the witness at the tim e that the identif

ication was m ade f

rom t h e photo array ; that he was attentive when he, of course, was getting d uct taped and pistol-whipped at the hands of the def endant and his brother; t hat the level o f certainty that was dem onstrated by [ Gray e r] was n ot s h a k e n , that he was, in f act, certain of his identif

i cation f rom the photographic lineup using the m em o ry and the i n f o r m ation t hat he had obtained at the tim e he was assailed; and this happened very shortly

. . . within approxim ately 24 hours of what was taking place between the e v ent and the photographic array

. The circuit court concluded that, “viewing [ the Biggers f a ctors] based u

pon the totality of the circum stances . . . [ it did] not see . . . a legal valid basis upon which to suppress [ G ray er’s] identif ication of [ Gardner].” ¶9. G a r d n e r ’ s t h ree-day jury trial began on Novem ber 27, 2017. A t t r i a l , G r a y e r authenticated the photo l ineup that Agent Sullivant p resented to him and conf irm ed Gardner as the individual that he had identif ied in the photo l ineup. Gray er also identif ied Gardner in the courtroom as the p erson who entered his hom e with Deway ne and stru c k h i m in the f ace with a pistol. ¶10. Hale also identif

ied Gardner in the courtroom

. Hale testif ied that he w as “positive”

t h a t G a r dner was the person who shot him

. Hale also testif ied that t he chain of events a t issue began when he had a f istf i ght with Deway

ne over a gun. Hale testif ied that, af

ter the f ight, Deway

ne told Hale, “Don’t worry about it, I’ll be back. I ’m going to get m y brother and he [ i s ] g o ing to kill y ou; he already done killed s om ebody bef ore.” Gardner’s trial

1 N eil v. B ig g e rs , 4 0 9 U

. S . 1 8 8 , 9 3 S . C t. 3 7 5 (1 9 7 2 )

. 5counsel objected to Hale’s testim ony as hearsay

. T he circuit court overruled the objection,

f inding that the testim o ny wa s a d mi s sible under the exceptions t o t he rule against hearsay provided b y Rule 8 03 of the Mississippi Rules of Evidence. T he court s pecif i cally f ound that Hale’s t e s tim ony constituted an “excited utterance” by Deway n e u nder R

ule 803(2) and a
statem ent of Deway

ne’s “then-existing state of m ind” under Rule 803(3). The circuit court also determ i ned that t he testim o ny p a s s e d “ t h r o ugh the [ Rule] 4 03 f ilter,” f inding that the

statem ent was m o re probative than prejudicial. M .R.E. 4 0 3

. The circuit judge then sua sponte i nstructed the jury to disregard the last part of H a l e’s t estim o ny that “he a lready done killed s o mebody bef

ore,” and polled the jury to conf irm that each juror would f ollow the court’s l i mi ting instruction. At the close of the evidence, the court gave a written jury instruction reiterating the lim itation. ¶11. Gardner a lso testif ied at trial. He of

f e r e d a n a l i b i d ef

e nse, stating that he was in Virginia Beach, Virginia, on July 28, 2015, not in Tutwiler, Mississippi. Gardner testif ied that he was unaware of how his f ingerprints e nded up on the duct tape used to bind Gray er. ¶12. On Novem

ber 29, 2017, the jury convicted Gardner on all c o unts. The circuit court sentenced Gardner to f

ive y ears f

or conspiracy to com m it aggravated assault, twenty y ears f or aggravated assault, thirty y ears f or k idnapping, and ten y ears f or possession of a f

irearm by a f elon, with the sentences to be served consecutively in MDOC’s custody . The circuit

court denied Gardner’s post-trial m otions f or a judgm ent notwithstanding t he verdict and f or a new trial. ¶13. Gardner now appeals to this Court. Gardner contends that the circuit court erred by

6deny ing his m otion f or a n ew trial. Specif

ically , he asserts that Gray e r ’s in-court and out-of

court i dentif

ications of Gard ner were tainted by an overly -suggestive photo lineup, and as such the photo lineup and identif ications should h ave b een suppressed. Gardner a l so asserts that H ale’s testim ony regarding Gardner’s p ast crim inal activity rend e r e d h i s trial unf air. Lastly , in his pro se supplem ent a l b r i e f , Gardner contends that because he was denied reasonable f

unds to secure out-of

-state witnesses to substantiate his alibi def ense, he was denied a f air trial and due process. Considering these issues, we f ind no error and af

f irm

. DISCUSSION ¶14. “A m otion f

or a new trial sim

ply challenges the weight of the e vidence.” Daniels v. State , 107 So. 3d 961, 963 (¶12) (Miss. 2013). W e will reverse the t rial court’s denial of a

m otion f o r a new trial only if t he trial court abused i ts discretion by doing s o. Id

. “Our role

as appellate court is to view the evidence in the light m ost f avorable t o the verdict and disturb the verdict o nly when i t is so contrary to the overwhelm ing w e i g h t o f the evidence that to allow it to stand would s anction an unconscionable i njustice.” Little v. State , 233 So. 3d 288, 289 (¶1) ( Miss. 2 017). Gardner’s post-trial m otion f or a new trial i ncluded, inter alia, a

num ber of chal l enges to the verdict based on the w eight of the evidence. To the extent Gardner reasserts those grounds h ere, our review of the record dem o nstrates that the verdict is not “contrary to the overwhelm ing weight of the evidence,” such that any challenge to the weight of the evidence is without m erit. W e a d d ress t he s pecif i c e videntiary issues that Gardner contends m andate a new trial as f ollows.
I. Denial of

Motion To Suppress

7¶15. Gardner asserts that th e p h oto lineup presented to Gray er by law enf orcem ent was overly suggestive, s uch that G ray er’s identif ication of Gardner should have been suppressed. “The standard of review f or suppression hearing f

indings in pretria l i d e n t if ication cases is whether or not substantial c redible evidence supports t h e t rial court f

indings that, considering the totality of t he circum s tanc e s, [ the] in-court identif ication testim ony was not im p erm issibly tainted.” Butler v
. State , 102 So. 3d 260, 264 (¶8) (Miss. 2012). This Court will not disturb a trial c ourt’s ruling on a m o tion to suppress evidence unless “ t h e r e is an absence of

substantial credible evidence supporting it.” Id

. ¶16. For an out-of

- c ourt or in-court identif

ication to be excluded, “it m ust be the result of

an im perm issibly s uggestive lineup and the i dentif ication m ust be unreliable.” Id

. (em phasis

om itted) (citing Y

ork v. S tate , 413 So. 2d 1372, 1383 ( Miss. 1982)). “A lineup or series of photographs is im

perm issibly suggestive if the accused, when com pared with t he others, is conspicuously s ingled o ut in som e m a nner f rom the others, e i t h e r f

r om appearance or
statem ents by an of

f icer.” Id

. a t (¶9) (internal quotation m ark om itted). W here the def endant is “the o nly one depicted with a distinctive f eature,” courts have f

o und the l ine u p t o be im p erm issibly suggestiv e . Bankston v. S tate , 3 91 So. 2 d 1005, 1008 (Miss. 1980) (det e rm ining t hat when a def endant was the only o ne w ith a m ustache, and the victim specif ically rem em

bered the r obber had a m ustache, t he photo lineup was im perm issibly suggestive). But “m inor dif f e rences” between the suspects or d if f erences in photo g r a p h backgrounds will not rende r a l i n e u p im perm i ssibly suggestive. Butler , 102 So. 3d at 265 (¶11); see also Jones v. State , 993 So. 2 d 386, 393 (¶15) (Miss. Ct. App. 2008) ( determ ining

8that when a def endant was the only one wearing a coat, the m inor dif f erence was not im p erm issibly

suggestive). ¶17. Gardner a sserts that the lineup shown to Gray er was suggestive because (1) three out of t he six i ndividuals wore earrings, and there was not h i n g i n t h e police statem ents suggesting th a t G a rdner wore earrings at the tim e o f the of f enses; (2) one individual was

sm iling or grinning; and (3) Gardner’s h ead posture was cocked back while the others were “cocked f orward,” singl i n g h i m out f rom the other f

ive individuals. 2 However, these are distinctions without a consequential dif f erence, and Gardner’s challenge t o the p hoto lineup is without m erit. ¶18. Much like J

ones , th e mi n o r d i f

f e r e n c e s between t he suspects in Gardner’s photo lineup are not im

perm issibly suggestive. In f act, during G ardner’s suppression hearing, the circuit court considered these characteristics, f inding that “the photographs w ere s trikingly sim ilar in appearance, and would take a person having very good knowledge of

the person being selected to pick out a c ertain individual.” W e agree. T he record does not ref lect that Gardner w as conspicuously s ingled out by a ppearance or otherwise, and there is no evidence that Agent Sullivant m ade a ny suggestive s tatem ents t o Gray er. The dif f erences between the six d epicted individuals are m inor, and t h e circuit c o urt acted well within its discretion to f ind that the photo lineup was not im perm issibly

suggestive. ¶19. Even if the distinctions posited by Gardner rendered the photo l ineup im perm issibly

2 In G ard n er’s p retrial m o t io n to su p p r ess, h e also c o n ten d ed th e lin eu p w as f law ed b ecau se th e p h o to o f G a rd n er w as f ro m w h e n h e w as sev en teen y ears o ld

. G ard n er d o es n o t ren ew th is arg u m en t o n ap p eal. 9suggestive, G ray er’s out-of -court i dentif

ication was nonetheless reliable. The United States Suprem e Cour t articulated f ive f actors to c onsider when evaluating reliability o f a witness identif ication, based on the totality of the circum stances: [ T]he f actors to be considered i n evaluating the likelihood of m isidentif i cation include [ ( 1)] the opportunity of the witness to view the crim inal a t the tim e of the crim e , [ ( 2)] the witness’ degree of a t t e n t i o n, [ ( 3)] the accuracy of the witness’ prior desc r i p tion o f the crim inal, [ ( 4)] t he level of certainty dem onstrated by the witness at the conf rontation, and [ ( 5)] the length of tim e between the crim e and the conf rontation. Neil v. B iggers , 409 U.S. 188, 199-200 (1972). The Mississippi Suprem e C ourt a dopted the Biggers test in Y

ork v. State , 413 So. 2d 1372, 1382 (Miss 1982). ¶20. H e r e , s u b s t a n t ial credible evidence supported the circuit court’s conclusion t h a t Gray er’s out-of

- court identif

i cation of Gardner w as reliable. As w eighed by the circuit court, Gray er h ad am

ple opportunity to v i ew Gardner and, indeed, acutely f ocus h is attention on Gardner during the crim e —Gardner repeatedly struck Gray er in the f ace with a pistol while asking Gray er questions, and af terward, Gardner bound Gray er’s han d s and f eet with duct tape. W hile Gray er did n ot identif y Gardner b y n am e bef

ore the photo lineup, he told police that “[ Deway

ne’s] b rother” was with Deway ne during the incident. Agent Sullivant testif ied that Gray er identif

ied Gardner “right away ” when h e was presented with the p hoto lineup. Lastly , the out-of

-court identif

ication was done within twenty -f our hours o f the crim e. Under the totality

of the circum s t ances, Gray er’s out-of -court identif

ication was reliable. ¶21. Given that the p hoto lineup presented to Gray er was not i m perm issibly suggestive and given that Gray er’s out-of -court identif

ication of Gardner was otherwise reliable, we f ind no

error in the circuit court’s denial of Gardner’s m otio n t o s u ppress Gray er’s o ut-of -court

1 0identif

ication, and Gray er’s i n-court identif ication of G ardner was not im p erm issibly tainted. This assignm ent of

error lacks m erit.
II. “Manif

est Necessity ” f

or a Mistrial ¶22. Gardner next a rgues that the adm ission of Hale ’ s “ i n c e n diary ” testim ony regarding Deway ne’s threat to H ale af

ter their initial f

i s t f i g h t rendered the t rial unf air, such that the circuit c o urt should have granted a m istrial sua sponte. Gardner also cited the circuit court’s allowance of Hale’s t estim o n y as a ground i n support o f h is post-trial m otion f or a new trial. The decision to g r ant or n ot g rant a m istrial lies w ithin the sound d iscretion of the trial court and is reviewed f

or abuse of discretion. Clark v. State , 4 0 S o . 3d 531, 538 (¶14) (Miss. 2010), disagreed with on other grounds by Portis v
. State , 245 So. 3d 457, 470 ( ¶30) & n.10, 471 (¶32) (Miss. 2018). If error “substantially

and irreparably ” prejudices the def endant’s

case, then the trial court m u st grant a m istrial. I

d

. However, the t rial court h as “ considerable discretion in determ ining if a m i strial is warranted

. . . . ” Harrell v. State , 947 So. 2d 309, 316 (¶23) ( M i s s . 2 0 0 7 ). “The standard of r eview regarding adm i ssion or exclusion of evidence is abuse of discretion.” Tillis v. State , 176 So. 3d 3 7 , 4 5 (¶15) (Miss. Ct. App. 2014). ¶23. At tr i a l , H a le testif i ed t hat af

ter their initial f

istf ight, Deway

ne m ade the f

ollowing

statem ent to Hale: “Don’t worry about it, I’ll be back. I’m going to get m y brother and he [ is] g oing to kill y ou; he a lready done killed s o m ebody bef ore.” Gardner’s counsel did not
contem poraneously r equest a m istrial. I nstead, counsel lodged a continuing hearsay objection to Hale’s testim ony and f u r t h e r argued that t he t estim ony w as highly p rejudicial

1 1even i f adm issible. The circuit court agreed that Hale’s statem ent was hearsay but f ound that it was “a non-testim onial hea r s a y s t atem ent t hat f ell within t he [ Mississippi Rule of Evidence] 803 e xceptions” of “excit e d utterance and

. . . existing state of m ind” and was
t h e r e f ore “properly adm issible.” M.R.E. 803(2)-(3). The c ircuit court then weighed “that ruling throug h t he [ Mississippi Rule of Evidence] 403 f ilter, [ and f

ound] t hat it [ was] a
statem ent that [ was] m ore p robative than prejudicial, and that the prejudicial ef f ect [ did] not outweigh its probative value.” ¶24. Af ter its evide n t i a ry r

uling, the circuit c ourt instructed the jury t o d isregard the end of Hale’s statem ent that Gardner “already done killed som ebody bef ore.” The circuit court then polled each juror to conf i rm that they could f

ollow the court’s instruction. The jurors af f irm ed t hat t hey would do so. At the end of the trial, the circuit court also gave the f ollowing written jury instruction: “The Court i nstructs y ou, the Jury , that y o u shall disregard the p ortion of [ Hale’s] t estim ony which the court adm o nished y ou a bout during the trial and continue to com

p ly during y o ur deliberations with the Court Order f rom t he bench.” Again,

on a caref ul review of t he record, we f ind no error in t he circuit court’s lim iting instructions regarding the challenged testim o ny . ¶25. Gardner asserts that instead of giving a lim iting instruction, the circuit court should have declared a m istrial s ua sponte pursuant to the “m anif est necessity ” rule f

o und in Spann

v. State , 557 So. 2d 530, 532 (Miss. 1990) (granting m istrial during def endant’s testim ony because his wif

e s houted d e r o g a t ory com m ents f rom the gallery regarding def endant’s truthf ulness and trial court concluded that there was no wa y t o avoid jury prejudice).

1 2W h ether the m anif e st n ecessity standard has been m e t turns on the f a cts and circum stances of each case. I

d

. (citing W

atts v. State , 492 S o. 2d 1281, 1284 (Miss. 1986)). 3 But “ a m istrial is not the inevitable result every tim e the jury i s p e r mi tted t o h ear inadm issible evidence.” Reed v. State , 764 So. 2d 511, 514 (¶12) (Miss. C t. App. 2000). This i s b e c a u s e “ t h e trial

court is in the best position to assess the prejudic i a l i mp a c t of the i m p roper e v idence and decide whether a m i strial is necessary or whether t he prejudice can be cured by a d m onishing the jury to disregard it.” Id. The q uestion is whether the jury was biased or tainted bey ond

cure as a resul t o f H a l e ’ s s t a tem ent. See Hoops v. State , 681 So. 2d 521, 528-29 (Miss. 1996). W e f

ind that it was not. ¶26. In Reed , this Court dealt w ith a f actual scenario sim i lar t o t he one here. There , the def endant was on trial f

o r rape. Reed , 764 So. 2d at 512 (¶1). T he prosecution’s w i tness stated that he believed that t he def endant h ad been previously convicted “f or a s e xual of f e n s e . ” I d

. a t 513 (¶8). The t rial court then gave a lim i ting instruction f or the jury to disregard the s tatem ent. Id

. The trial court also noted on the record that the j urors indicated that they w ould com

p ly with the lim iting instruction. I d . This Court a f

f i rm ed, noting that the trial court, a ddressing t h e m atter f irst-hand, was apparently satisf ied that the lim iting instruction and the jury ’s stated com pliance were suf

f icient to m inim ize any prejudice to the def endant. Id . at 514-15 (¶¶13-15) (f inding no m anif

est error in the record). ¶27. H e r e , t h e c i r c u i t c o u r t likewise did not err in its approach in dealing w i t h t h e

3 In Wa tts , o u r su p rem e c o u rt p r o v id ed s ev eral ex am p l es o f w h en a m istrial w o u ld lik ely b e a m an if

est n ecessity : “f

ailu re o f a j u ry to ag r ee o n a v erd ict”; a b iased o r o th erw ise tain ted j u r

y ; im p ro p er sep aratio n o f th e j u ry ; an d w h ere j u ro rs sh o w ed an u n w illin g n ess to f o llo w th e co u rt’s in stru ctio n s. Wa tts , 4 9 2 S o . 2 d at 1 2 8 4 (citatio n s o m itted )

. 1 3testim o ny in question. The circuit court w eighed Hale’s testim ony under t he rules of

evidence and determ i ned that even though his repetition of Deway ne’s threat was hearsay , Deway ne’s statem ent to Hale was adm issible under Rule 803(2) and (3). T he circuit court also weighed t he statem ent against Rule 403’s balancing test and deter m ined that Hale’s

statem ent was m ore probative than prejudicial. B ut the circuit court then instructed the jury

to disregard the evidence of Gardner’s prior bad act and conf irm ed with each juror that the jury would f

ollow t he court’s lim i ting instructions. At the end o f t rial, the circuit c ourt gave

a written j ury instruction—without repeating the of f ending statem e n t—to rem ind the jury to “disregard the portion of [ H ale’s] testim ony which the c o urt adm onished y ou about during the trial a n d continue to com ply during y o ur d eliberations with the Court Order f rom th e bench.” In each of

these decisions, during and af t er the trial, the circuit court acted within its discretion. Gardner’s contention that the circuit court should have declared a m i strial sua sponte a f ter Hale’s testim ony is thus without m erit, and the circuit court likewise did not err in deny ing Gardner’s post-trial m otion f or a new trial on this ground.
III. Out-of

- State W i tnesses ¶28. In his pro se s upplem e ntal brief , Gardner a sserts that his d u e p r o c e s s r i g h t s were violated b ecause he was not af f orded “a reasonable am ount of f unds t o secure the presence of several alleged witnesses

. . . to verif y [ Gardner’s alibi that he was in Virginia at the t im e the crim es were com m i tted].” But the record belies Gardner’s contention. ¶29. Mississippi Code Annotated section 99-9-33 (Rev. 2 015) s ets f orth the procedure f

or

sum m oning out-of

-state witnesses to testif

y in a crim inal prosecution in this state. Section

1 49 9

- 9 -33 provides in relevant part: “If the witness i s sum m o ned to attend and testif y i n [ Mississippi], he s hall be tendered the s um of ten ($.10) cents a m ile f or each m ile and f

ive ($5.00) dollars f

or each day

that he is required to travel and attend as a witness.” ¶30. On August 18, 2017, the circuit court entered an order granting Gardner’s Petition to Secure the Attendance of O ut-of -State Wi tnesses. This order g ranted advance “travel and
per diem f

ees” according t o section 99-9-33 to Antonio Robin s o n , Shawntae Lassiter, and Brandy R oss, purportedly all a libi witnesses f or Gardner. On N ovem

ber 17, 2017, Gardner f iled a m otion r e q u e sting extra f unds to cover $157.80 in additional t ravel expenses f or Lassiter (f

or bus f a re). The circuit court granted Gardner’s m otion t he sam e day

. The circuit

court noted that “it [ was] the court’s opinion that the request f or this additional m oney [ was] in f act warranted a s n ecessary court expenses t o insure a f air trial.” Subpoenas were issued f or the three witnesses. Robi n s o n a n d Lassiter w ere both served, but R oss could not be located. None of

the witnesses appeared at trial. ¶31. Gardner allege s t h a t h a d “ h i s w itness[ es] been provided a f air am ount of f

unds to

secure their livel[ i]hood during the trial[ ,] they w ould have been present and the jury would

not have convicted [ him ].” G ardner does not detail w hat “f air am ount of f

unds” would have induced the witnesses to appear a t trial, but the record ref lects that the circuit court f ollowed the statute in providing each of Gardner’s purported alibi witnesses the a l lowance set f orth in section 99-9-3. And the court went f urther t o grant additional f u nds requested by Gardner

to e nable L assiter to appear. Gardner’s trial counsel i nf orm ed the circuit c ourt that Lassiter

was subpoenaed and given her check. But she did n ot appear, a nd Gardner never requested

1 5any additional f unds or other relief f

rom the circuit court. To the extent Gardner’s witnesses f a i l e d t o appear in his d e f

ense, their non-appearance was not t he result of any error b y t h e circuit court. This issue is without m erit. ¶32. AFFIRMED. BARNES, C.J., C ARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, TINDELL, McDONALD, LAWRENCE AND McCARTY, JJ., CONCUR.

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