IN THE SUPREME COURT OF MISSISSIPPI

NO. 2003-KA-02549-SCT

STEPHANIE K. STEPHENS

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 9/15/2003

TRIAL JUDGE: HON. JESS H. DICKINSON

COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: RAY T. PRICE

ATTORNEY FOR APPELLEE:

DISTRICT ATTORNEY: OFFICE OF THE ATTORNEY GENERAL

BY: W. GLENN WATTS

JOHN MARK WEATHERS

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 06/16/2005

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE SMITH, C.J., EASLEY AND GRAVES, JJ.

GRAVES, JUSTICE, FOR THE COURT:

¶1. Stephanie K. S tephens (Stephanie) was convicted of murdering her husband, Dr. David

Stephens, in violation of Section 97-3-19 of the Mississippi Code of 1972. Following the

jury ’s verdict, the trial judge sentenced Stephanie to life imprisonment in the custody of the

Mississippi Departme nt of Corrections. Following the denial of her post-trial motions,

Stephanie timely brings this appeal and asserts numerous errors in the tria l below. Finding no

reversible error, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY2

¶2. In 1987, Dr. David Stephens, a prominent heart sur geon, moved to Hattiesburg to

establish a cardiovascular program at Forrest General Hospital. Accompanied by his wife,

Kar en, and two children, David began to establish a new life in Mississippi. However, this new

life was not to commence without incident and tragedy.

¶3. In March 1996, Karen confronted David at their home about an affair David was having

with another woman, allegedly Stephanie Kenn edy, his nurse. In the heat of their argument,

Karen retrieved a pistol, wh ich discharged in her mouth and rendered her immediately

paralyzed from the neck down and eventually resu lted in her death some two months later.

Karen’s deat

h was ruled a suicide over David’s objection, who wanted it to be ruled an

accidental death.

¶4. Despite demonstrating signs of guilt and depression over Karen’s death, David began

openly dating Stephanie, and the two were married in 1997. Shortly after his marriage to

Stephanie, David suffered a stroke which resulted i n hospitalization, missed time from work

and a loss of eyesight. To this end, his loss of sight rendered David unable to perform surgical

procedures which he had previously performed.

¶5. In 1998, David began suffering from symptoms of hepatitis C, with which he had been

diagnosed years earlier, but previously had been asymptomatic. David was also diagnosed at

approximately the same time with diabetes mellitus, the most serious form of diabetes, which

caused widespread fluctuations in his blood sugar and attendant complications such as

dizziness, blurred vision, d ifficulty concentrating and confusion. In an attempt to treat and

slow the symptoms of his hepatitis C, Da vid underwent two courses of interferon therapy,3

which did little to sl

ow the progression of his hepatitis C. Instead, the interferon therapy

caused severe damage to David’s liver.

¶6. By 2000, David’s illnesses had taken their toll and rendered him unable to work. He

began to draw disability benefits from his policy with UNUM Insurance Com pany. David

requested that the Hattiesburg Clinic, his previous employer, allow him to continue practicing

medicine by reading diagnostic studies, but he was turned do wn by the Clinic’s board of

directors for a full-time position and instead was only given part-time work. David’s monthly

salary dropped form $50,000 to approximately $6,000.

¶7. In addition to David’s severe illnesses, b y 2001 Stephanie’s health also began to

deteriorate. She had severe complications from Crohn’s disease, an intestinal disorder, and

a broken hip which limited her mobility. These conditions rendered Stephanie unable to work.

With both David and Stephanie un able to maintain employment, the couple hired a nanny to

care for Stephanie’s two young children as w ell as a medical professional to see after them.

By this time, Da vid’s condition had worsened to the point where he was placed on an organ

transplant list

at Ochsner Hospital in New Orleans. His diabetes had worsened due to his poor

e ating and health habits to the point where he wore an insulin pump twenty-four hours a day

which automatically injected a regulated amount of insulin into his abdome n at regular

intervals.

¶8. On May 1, 2001, Stephanie awoke to find David lying lifeles s in his bed. Bobby

Shurden, the deputy coroner who investigated the case, spoke with Dr. Philip Rogers, David’s

treating physician, and concluded that David had died of natural causes as a result of his endstage liver failure. Initially, neither Dr. Rogers nor Butch Benedict, the Forrest County4

Coroner, saw any indicat ion of foul play, other than the possibility that the death may have

resulted from a malfunction of the insulin pump. As is customary practice, the Forrest County

Coroner’s Office d rew two vials of blood from David and sent them to the Mississippi Crime

Laboratory for analysis. The lab report revealed that a chemical called laudanasine, a

metabolite of a hypnotic anesthetic drug called atricurium, was found in the sample of blood

drawn from David.

¶9. After receiving the lab report, a full investigation was l aunched by local law

enforcement officials into David’s death. On June 1, 2001, Officer Rusty Keyes of the

Hattiesburg Police Department, along with Benedict, visited the Stephens home and met with

Stephanie regarding the lab report. Stephanie claimed no knowledge of what the drugs were

or how they c ould have gotten into David’s system. The Hattiesburg Police Department

continued its inve stigation by subpoenaing phone records, banking information, and David’s

medical records. On June 25, 2001, Keyes and Benedict received an order from Forrest

County Circuit Judge Dickie McKenzie to have David’s body exhumed for an autopsy. D r.

Stephen Hayne perform

ed the autopsy which revealed that the cause of death was the

“laudanosine overdose and also etomidate toxicity.”

¶10. Further, the investigation revealed that David maintained a deferred compensation plan

with MetLife Insurance Company which at the time of his death was valued at approximately

$732,000. On May 1, 2001 (the day of David’s death), MetLife sent out a standard form letter

regarding participant renegotiations of pay-out dates to all participants in the Maximum

Deferred Compensation program. After failing to receiving correspondence from David,5

MetLife re-sent the form to his reside nce on June 1, 2001. On June 14, 2001, MetLife

received the form purportedly signed by David and dated April 30, 2001.

¶11. With the above information, the Hattiesburg Poli ce Department obtained an arrest

warrant for Stephanie Stephens. During the January 2003 term the Forrest County Grand Jury

indicted Stephanie f

or the murder of her husband in violation of Section 97-3-19 of the

Mississippi Code of 1972. Stephanie was arraigned on April 14, 2003, and the trial was set

for September 8, 2003.

¶12. Du

e to enormous pretrial publicity surrounding this case, the trial court granted

Stephanie’s Motion for Change of Venue, and a jury was selected from DeSoto Co unty. Also,

during the pre-trial hearing, the trial court announced that CBS Television wished to cover the

courtroom proceedings in hopes of creating a news documentary about this case. Neither

coun sel for the State nor Stephanie objected to the presence of the media. The trial lasted

seven days and involved approximately twenty witnes ses and numerous exhibits. On September

15, 2003, Stephanie was found guilty of murder and sentenced to life imprisonment in the

custody of the Mississippi Department of Corrections. Having failed on all post-trial motions,

Stephanie timely brings this appeal and asserts numerous errors at the trial below.

DISCUSSION

I. Cameras in the courtroom.

¶13. Stephanie argues that the trial court violated Rule 4 of the Mississippi Rules of

E lectronic and Photographic Coverage (MREPC) by allowing media into the courtroom during

her trial. Specifically, she argues that the placement of the cameras in the courtroom

prejudiced her by infringing upon her right to a fair trial. Also, Stephanie contends that when6

the trial cour t advised the jury that the trial was being covered by a national news program, the

protection afforded to her by the trial court’s order changi ng venue were reversed. Stephanie

avers that these errors resulted in a more tainted jury than could have been obtained originally

in Forrest County.

¶14. On June 5, 2003, a pre-trial motion hearing was conducted wherein the trial court

addressed several preliminary matters. Among these was the idea of having cameras in the

courtroom during the entire trial. Prior to making his ruling, then-Circuit Judge Jess H.

Dickinson made the following observations:

The third thing I want to cover is t hat I have disclosed previously a contact that

was made to the Court through the clerk’s office from an executive producer

with CBS News. CBS, through its television program “48 Hours,” is interested

in filming this trial for a subsequent segment on one of their shows. Their

reason for making the inquiry is that ou r Supreme Court recently passed a new

rule which allows cameras in the courtroom. And as of the time that this trial

will begin, that rule will be in effect. So they made the inquiry stating that they

would like to come down and film the trial.

. . . . . . . . . . . . . .

I have talked with counsel for Ms. Stephens and with the district attorney about

this, but now on

the record in open court, I would ask if either of you have any

comment to make, any objection, or statement to make to the Court prior to the

Court making a determination of whether or not that permission wil l be granted.

Both counsel for the State and the defendant made no objections to granting CBS access to the

courtroom proceedings. The trial judge went on to state, “The Supreme Court has certain

requirements attendant to the rule allowing cameras in the courtroom, and those rules are

going to be followed. Some of the rules are that the camera cannot film jurors and various

other aspects that we will follow.”7

¶15. As the trial court correctly points out, on April 17, 2003, this Court adopted the

Mi ssissippi Rules for Electronic and Photographic Coverage of Judicial Proceedings

(MREPC), bringing Mississippi in accord with those states which have elected to allow

coverage of court proceedings by use of still cameras, television, and other electronic

technology. Prior to passage of the MREPC, cameras were generally excluded from

Mississippi courtrooms under the Mississippi Code of Judicial Conduct. At present, the

MRE PC allow for electronic media coverage of public judicial proceedings in appellate and

trial courts of re cord in this state subject to certain conditions. MREPC 3. Also, the rules

allow the presiding justice or judge with the discretion to limit or terminate electronic

coverage at any time during the proceedings if the court deems such necessary and in the

interest of justice to protect the rights of the parties or witnesses, or the dignity of the

court, or to assure orderly conduct of the proceedings. Id.

¶16. With regard to this particular assignment of error, Stephanie makes two basic

contention s. First, she argues that with the placement of CBS’s cameras in the courtroom,

the trial court

violated MREPC 4. Secondly, she avers that when the trial court announced

to the jury the trial was being covered by a national news prog ram, any protections

previously afforded by the order changing venue were eliminated.

¶17. Stephanie’s first co ntention is without merit in that the record reveals she never made

a contemporaneous objection to allowing CBS into the courtro om during her trial. There

is a general requirement that objections must be raised at the trial level. We have held that

where no contemporaneous object ion is made, the alleged error is waived. S cott v. State,

878 So.2d 933, 953 (Miss. 2004); In re S.A.M

., 826 So.2d 1266, 1277 (Miss. 2002); I n8

re V.R., 725 So.2d 241, 245 (Mis s

. 1998); Williams v. State, 684 So.2d 1179, 1203 (Miss.

1996); Walker v. State, 671 So.2d 581, 587 (Miss. 1995); Smith v. State, 572 So.2d 847,

848 (Miss. 1990); Cole v. State, 5 25 So.2d 365, 368 (Miss. 1988); B urney v. State, 515

So.2d 1154, 1156-57 (Miss. 1987). We find no legitimate reason(s) that would exclude

applicatio n of the contemporaneous objection rule under the present facts. Notwithstanding

the current MREPC rules, where no objection is made at the trial level regardi ng the

admission or exclusion of the media as permitted by these rules, such error, i f any, is waived

on appeal.

¶18. It is, of

course, incumbent upon counsel at trial to make a contemporaneous

argument and/or objection when he believ es an error has occurred. In the instant action,

defense counsel had several opportunities to raise objections to the trial court’s application

of Rule 4. Defense counsel could have raised an objection during the pre-trial hearing when

the trial court stated

CBS’s intention to film the trial, or at any point during the trial if he

or his client felt the rules were being violated. However, the record is completely devoid

of any such objection.

¶19. Under these circumstances, we have held that a defenda nt who fails to make a

cont emporaneous objection must rely on plain error to raise the assignment on appeal.

Perkins v. State, 863 So.2d 47, 55 (Miss. 20 03), Randall v. State, 8 06 So.2d 185, 195

( Miss. 2001); W

higham v. State, 611 So.2d 988, 995 (Miss. 1995); Foster v. State, 639

So.2d 1263, 1288-99 (Miss. 1994). The plain error doctrine has a two-part test which

requires: (i) an error at the trial level and (ii) such an er ror resulted in a manifest

mi scarriage of justice. G ray v. State, 549 So.2d 1316, 1321 (Miss. 1989). We have held9

that plain error exists where a defendant’s substantive rights have been affected. G rubb v.

State, 584 So.2d 786, 789 (Miss. 1991).

¶20. Under an analysis of the plain error doctrine, Stephanie must demonstrate an error

at the trial level. To this end, Stephanie argues that the placement of CBS’s cameras in the

courtroom no t only violated Rule 4, but severely abrogated her right to a fair trial. She

contends that the trial court allowed one camera to be p l aced immediately behind the jury

box on a tall tripod, so that the lens of the camera actually hu ng over the back rail of the jury

box directly above the jurors’ heads. She states that a second camera, operated via remote

control, was located in a corner between the jury box and the jury room so that it panned the

entire jury se ated in the box. Lastly, she observed that the third camera was located in the

bal cony of the courtroom somewhat to the rear of the jury and was not located in a spot

which was continually conspicuous to the jury.

¶21. The relevant provisions of Rule 4 are set forth below:

(a) The location of equipment and personnel necessary for electronic media

coverage of judicial proceedin gs shall be at a place either inside or outside

the courtroom so as to be minimally int rusive to the proceedings. Only

equipment which does not produce distracting sound or light shall be

employed to c over judicial proceedings. No flash or strobe lighting shall be

used. All running wires shall be securely taped to the floor. No other

artificial lighting device of any kind shall be employed in connection with

electronic coverage unless otherwise authorized by the court.

(b) No members or potential members of the jury may be recorded or shown

at any time prior to their dismissal, nor shall the jury selection process be

subject to electronic coverage. The presiding judge shall inform all potential

jurors at the beginning of the jury selection pr ocess of the restrictions of this

particular provision.

. . . . . . . . . .10

( e) Electronic media equipment shall not be taken into the courtroom,

relo c ated, or removed from the designated media area except prior to

convening of the judicial proceedings, during recess, and after adjournment

of the day.

¶22. Stephanie fails to demonstrate how the placement of the cameras was so intrusive

as to disrupt the proceedings. The MRECP vest the presiding judge with a wide range of

discretion with regard to the lo cation and placement of the media equipment. A review of

CBS’s footage reveals that the equipment used did not produce any un reasonably distracting

sounds or light. All running wires were taped to the floor throughout the trial. The footage

did not include the identity of any of the seate d jurors nor the jury selection process. In

addition to fo llowing the MREPC, during the pre-trial hearing, the trial court instituted

additional safegua rds to insure that Stephanie received a fair and impartial trial. First, the

trial court required that all personnel involved in filmin g the trial would meet with the court

and counsel every morning to discuss the day’s expec ted events and any restrictions that

might be placed on filming. Second, the trial court mandated that CBS make a copy or

provide digital access to the each day’s activities available to any other member of the media

for use by the media in thei r news gathering and reporting. Lastly, the trial court placed in

its order the stipulation that any party feel ing aggrieved by the conduct of CBS or its

personnel in making this information available could file a report with the court.

¶23. We note that in circumstances where the media is allowed into judicial proceedings,

the location

and placement of media equipment could intrude in some manner or fashion

upon the intricacies of the proceeding. However, under Rule 4(a), the intrusion must be of11

a minimal nature. Under the facts before us, we conclude that the presence of the media

equipment was not so intrusive that the integrity of the proceeding was compromised.

¶24. Also, with regard to the placemen t of CBS’s cameras, Stephanie fails to set forth any

prejudicial effect the placement of the cameras had upon her trial. It is simply not enough

to complain that

the placement of media equipment in a courtroom proceeding violates the

M REPC. The party complaining of a violation must come forward with some evidence to

establish (i) that a violation of the rules occurred and (ii ) that it prejudiced or impeded their

right to a fa ir and impartial trial. In granting the media access to judicial proceedings, the

paramount concern must, of course, be assuring fair t rials for the parties. Thus, when a party

claims a violation of

the MREPC, it is incumbent upon that party to come forward with

evidence in support of their claim. Here, Stephanie fails to present such evidence. Thus,

we need not

reach the second prong of the plain error analysis because Stephanie has failed

to establish that a Rule 4 violation occurred.

¶25. The placement of the cameras in the courtroom in the instant action was minimally

intrusive to the proceedings and not violative of MREPC Rule 4. Additionally, absent a

showing of prejudicial effect, any violation standing al one will not be sufficient to overturn

a criminal conviction.

¶26. The second contention raised under this assignment of error is that when the trial

court an nounced to the jury that the trial was being covered by a national news program, any

protections previously afforded by the order changing venue were e l iminated. This

contention is likewise without merit.12

¶27. In considering the appropriateness o f a change in venue, this Court looks to the level

of pretrial publicity and prejudicial nature of the coverage p rovided. Holland v. State, 7 05

So.2d 307, 336 (Miss. 1997); Hickson v. State, 707 So.2d 536, 542 (Miss. 1997); Fisher

v. State, 481 So.2d 203, 215 (Miss. 1985). However, we are not called upon to consider

whether the or der changing venue was proper. Instead, we must determine whether the trial

court’s announcement of media coverage to the jury elimina ted the protections afforded by

the order changing venue.

¶28. Due to the enormous pretrial publicity given to this case, the trial court determined

that Stephanie’s motion for change of venue was meritorious. In fact, the State, being aware

of the extent of the publicity, agreed with the motion. To this end, the trial court along with

counsel empaneled a jury of DeSoto County residents. Thus, the protections of the order

changing venue arose when the jury was selected. However, Stephanie contends that by

allowing the media inside the courtroom, the protections afforded by the order changing

venue were undermined. This reasoning is flawed for two significant reasons.

¶29. First, the record reveals that the jury was sequestered throughout the duration of the

trial. It was determined during voir dire that these jurors could be fair and impartial during

the trial of this defendant. There is no reasonable justification to attack the jury’s findings

because of their knowledge that the trial was being filmed. Stephanie offers no support to

suggest that this jury would have reached a different result but for the presen ce of the media.

Second, the CBS footage was not released until after the conclusion of the trial. At this

point, jurors were free to discuss any part of the tri al, including their deliberations with the

media, family and family. Therefore, the taint (if any) to the protections afforded via the13

order changing venue a rose after the jury reached its verdict. By this time, the proceedings

had concluded and Stephanie’s rights preserved.

¶30. We hold that a trial court’s d ecision to allow media coverage of judicial proceedings,

pursuant to the MREPC, does not eliminate the protections afforded to a criminal defendant

in an order changing venue where the jury was sequestered and the media footage was

released after the proceedings had concluded.

II. Corpus delicti.

¶31. Stephanie argues that the trial court should have granted her motion to dismiss at the

conclusion of the State’s case-in-chief because of its failure to prove all the essential

elements of the crime charged beyo nd a reasonable doubt. Essentially, Stephanie believes

that the State failed to prove that David was actually murdered. Instead, she believes

sufficient, credible evidence existed to prove that David committed suicide.

¶32. As Stephanie correctly n otes, “[c]orpus delicti is defined as the body or substance

of the crime.” Parks v. State, 8 84 So.2d 738, 742 (Miss. 2004) (quoting Cotton v. State,

675 So.2d 308, 313 (Miss. 1996)). It has two elements which must be proven beyond a

reasonable doubt in order to show that a crime has actually been committed. P arks, 884

So.2d at 742 (citing Poo l e v. State, 246 Miss. 442, 446, 150 So.2d 429, 431 (1963)). First,

it is necessar

y to prove the existence of a certain act or result forming the basis of a

criminal charg

e. Id. Moreover, the State must prove the existence of criminal agency as the

cause of this act or result. I d. The suspect’s identity is not a component of the corpus

delicti. I d. However, “[e]very element, criminal charge, and criminal agency must be p roved

beyond a reasonable doubt.” Id. (citing Poole, 246 Miss. at 446, 150 So.2d at 431).14

¶33. During the trial, Karen Burnett testif ied for the State. According to her testimony,

Burnett and her husband accompanied Stephanie and her then fiancé, Chris topher Watts, in

June, 2002 to Las Vegas. Burnett and her husband were asked to accompany Stephanie and

Watts to witness their wedding which was to take pla ce in Las Vegas. Burnett testified that

on the day of Stepha nie’s wedding, Stephanie told Burnett that David wanted to die and

requested that Stephanie help him. Burnett said Stephanie injected him with two sedatives

and a heart medica

tion. Stephanie argues that Burnett’s testimony, coupled with other

circumstantial evidence

presented at trial, does not prove the corpus delicti of murder. She

reasons that because the State failed to prove corpus delicti, the trial court erred in denying

her motion to dismiss.

¶34. We have held that where a defendan t confesses to a crime, the confession itself is

not sufficient to support a felony conviction unless it is corroborated by independent

evidence of the corpus delicti. H odge v. State, 823 So.2d 1162, 1166 (Miss. 2002) (citing

Cotton v. State, 6 75 So.2d 308, 314 (Miss. 1996)); B ullock v. State, 447 So.2d 1284, 1286

(Miss. 1984). However, where there is a confession, much slighter evidence is required to

prove corpus delicti. M iskelley v. State, 480 So.2d 1104, 1108 (Miss. 1985) (quoting

Roberts v. State, 153 Miss. 622, 121 So.2d 279 (1929)). “The corpus delicti need not be

established beyond a reasonable doubt but to a probabili ty, and proof coupled with a

confession may be consider ed as establishing the corpus delicti beyond a reasonable doubt.”

Miskelley, 480 So.2d at 1108.

¶35. We hold that when coupled with other evidentiary proof offered by the State,

Stephanie’s confession to Burnett was sufficient to estab lish the corpus delicti of murder.15

The record reveals numerous facts which indi cate Stephanie’s opportunity, ability,

kn owledge and motive to commit the crime charged. On the morning of May 1, 2001,

Stephanie was alon

e with David behind a locked bedroom door prior to his death. There was

corroborated testimony offered by Lena Suprun, the nanny/housekeeper, that D avid was

snoring at one point during that morning, but approximately an hour later, he was silent. The

crime lab report and the autopsy revealed th at David died due to the presence of Atricurium

and Etomidate in his blood stream. It was established that these drugs are only intended to

be used in su

rgical settings to induce anesthesia. The State established that these drugs were

accessible to Stephanie at the Forrest General Hospital where she had previously worked.

Further, the State showed that as a nurse, Stephanie possessed knowledge about the drugs,

their uses, as well as the workings of David’s insulin pump. The pump which David utilized

was capable of injecting whatever drug was pla c ed inside the system. Also, the record

reveals that when she was initially confronted with the fact that drugs were found in David’s

body, Stephanie’ s statements were completely inconsistent with those of a grieving widow.

When initially revealed that two vials o f blood had been drawn from David’s body, Stephanie

said, “You drew blood?” When questioned further, she said, “Am I being charged with

murder?” The investigators were not making accusations, but merely asking preliminary

questions which might aid in their investigation.

¶36. Also, the State offered an affidavit of Larry S. Westfall, the national director of

Deferred Co mpensation for MetLife Insurance Company. In his affidavit, Westfall stated

that around the time of his death, David maintained a deferred compensation plan with

MetLife Insurance Company valued at appr oximately $732,000. On May 1, 2001 (the day16

of David’s death), MetLife sent out a standard f orm letter regarding participant

renegotiations of pay-out dates to all participants in the Maximum Defer red Compensation

program. After failing to receiving correspondence from David, MetLife resent the form

to his residence on June 1, 2001. On June 14, 2001, MetLife received the form purportedly

signed by David and dated April 30, 2001. Also, a copy of the MetLife payout agreement

and check were offered into evidence by the State.

¶37. Stephanie would have this Court consider th e testimony of her witness, Dr. Gerald

O’Brien, a forensic psychiatrist. Dr. O’Brien reviewed David’s medical, personal and work

history. He concluded that David’s personal history and health problems indicated he was

definitely a candidate

for suicide. Seemingly this testimony would stand to contradict the

State’s theory that David’s death was a homicide.

¶38. Jurors are permitted, an d indeed have the duty to resolve the conflicts in the

testimony they hear. G andy v. State, 373 So.2d 1042, 1045 (Miss. 1979). Any conflicts

in the tes timony of witnesses is the province of the jury. G roseclose v. State, 440 So.2d

297, 300 (Miss. 1983). Who the jury believes and what conclusions it reaches are solely

for its determination. As the reviewing court, we cannot and need not determine with

exactitude which witness(es) or w hat testimony the jury believed or disbelieved in arriving

at its verdict. It is enough that the conflicting evidence presented a factual dispute for jury

resolution. Id. at 300.

¶39. Considering the facts before us, it is transparently clear that the jury found the

evidence presented by the State was more credible and/or reliable th an that offered by

Stephanie. A thorough review of the record reveals that the State adequately established the17

corpus delicti of murder. Burnett’s testimony regarding Stephanie’s confession is coupled

with amp le proof of the commission of the crime. We hold that the State clearly

establ ished the corpus delicti of the charged offense to a probability. Thus, the trial court

did not err in denying Stephanie’s motion to dismiss.

III. Sufficiency of the Evidence.

¶40. Ste phanie contends that the trial court erred in denying her motions for directed

verdict and judgment notwithstanding the verdict (J.N.O.V.). Stephanie believes that there

was insufficient evidence to support her conviction.

¶41. The standard of review for the denial of a motion for directed verdict and judgment

notwithstanding the verdict is the same. S helton v. State, 8 53 So.2d 117, 1186 (Miss.

2003). A directed verdict and JNOV both challenge the legal sufficiency of the evidence

presented at trial. I

d. T he standard is as follows: “this Court consider ed all of the evidence

in the light most favorable to the State and gives the State the bene fit of all favorable

inferences that may reasonably be drawn from the evidence.” S eeling v. State, 844 So.2d

439, 443 (Miss. 2003). The Court must reverse and render if the facts, viewed in that light,

point so overwhelmingly in favor of the appellant that reasonable men could no t have arrived

at a guilty verdict. I

d. T he Court must affirm, however, when there is substantial evidence

in support of the verdict of such quality and weight that reasonable and fair

- minded jurors

in the exercise of impartial judgment might have reached different conclusions. Id.

¶42. Ste phanie contends that her conviction was based wholly upon circumstantial

evidence, and as such, the evidence was legally insufficient to support her conviction. In

support of this argument, Stephanie focuses our attention to Steele v. State, 5 44 So.2d 80218

(Miss. 1989). In S teele

, the defendant was found guilty of capital murder in the death of a

23-month-old infant. I

d. at 803. The defendant was home alone with the child when she

incurred fatal head injuries. I d. T he medical evidenc e was susceptible to two

interpretations, one of which was that the child fell f rom her bed and sustained the injuries

when her head hit the floor. I d. at 805-06. The State’s theory was that Steele had inflicted

the injuries on the child. I d. T his Co urt ruled that the trial court should have granted the

defendant’s motion for J.N.O.V. becaus e the evidence was insufficient to support the

conviction. S teele is distinguishable from the facts in the case sub judice because, here, the

conviction is not based exclusively upon circumstantial evidence.

¶43. “Circumstantial evid ence need not exclude every ‘possible doubt,’ but only every

other ‘reasonable’ hypothesis of innocence.” N eal v. State, 805 So.2d 520, 526 (Miss.

2002) (quoting Tolbert v. State, 407 So .2d 815, 820 (Miss. 1981). However, we have held

that a circumstantial evidence case is one in which there is neither an eyewitness nor a

confession to the crime. M angum v. State, 762 So.2d 337, 344 (Miss. 2000). S te e le

provides no support for Stephanie’s contention because its facts f ail to contain either an

eyewitness or a

confession to the crime. However, the case sub judice is not solely based

upon circumstantial evidence in that the defendant confe s sed to the crime charged. During

the trial, Burnett testified to the following:

“[Stephanie] told me that [David] had expressed to her that he wanted to die

and he asked her to help h im. And [Stephanie] told me that she injected him

with two sedatives and a heart medication, I believe.”19

Thus, Stephanie’s statement to Burnett took this case out of the realm of wholly

circumstantial evidence. Burnett’s testimony was clearly admissible pursuant to Rule

801(d)(2) of the Mississippi Rules o f Evidence, as an admission by a party-opponent.

Certainly, Stephanie could have attacked the stat ement’s truth or the veracity of the witness

on cross-examination or

through witnesses of her own. However, the weight afforded to

Burnett’s testimony was an issue solely for the jury. In addition to Burnett’s testimony, the

Sta te offered testimony from several witnesses which established that Stephanie possessed

the motive, opportunity, ability and knowledge to have committed this crime.

¶44. Considering the evidence offered by the State, Stephanie’s argument that the trial

court erred in denying

her motions for directed verdict and J.N.O.V. is unpersuasive. When

observed in the light most favorable to the State and with the State receiving the benefit of

all favorab le inferences, we conclude that the evidence presented was legally sufficient to

support the conviction in this case.

IV. Karen Burnett’s testimony.

¶45. Stephanie avers that the Burnett’s testimony concerning the confession should have

been stricken and given no credibility whatsoever.

¶46. T he standard of review this Court employs regarding admission or exclusion of

evidence is an abuse of discretion. C lark v. State, 891 So.2d 136, 1 39 (Miss. 2004); P arks

v. State, 884 So.2d 738, 742 ( Miss. 2004); H erring v. Poirrier, 797 So.2d 797, 804 (Miss.

2000 ). “The trial judge is empowered with the discretion to consider and to decide what

evidence is admissible, and unless this judicial discretion is so abused as to be prejudicial

to the accused, then, the ruling of the lower court must be affirmed.” P oirrier, 797 So.2d20

at 804. Where error involves the admission or exclusion of evidence, this Court “will not

reverse unless the error adversely affects a substantial rig ht of a party.” L adnier v. State,

878 So.2d 926, 933 (Miss. 2004) (quoting W hitten v. Cox, 799 So.2d 1, 13 (Miss. 2000)).

¶47. Step hanie maintains that Burnett had a motive to fabricate her trial testimony.

According to Burnett’s testimony , she and her husband accompanied Stephanie and Watts

to Las Vegas in June, 2002 to witness the marriage of Stepha nie and Watts. According to

Burnett, on

the day of Stephanie’s wedding, Stephanie confessed to having injected David

with two toxins. Following the wedding, Burnett, upset with her husband, returned to

Hatt iesburg and agreed to take care of Stephanie’s home. Sometime shortly thereafter,

Burnett contends that the home was burglarized.

¶48. When Burnett returned to Hattiesburg, she did not report the confe ssion to law

enforcement officials, includ ing her father who worked as an investigator for the Forrest

Coun ty District Attorney’s Office. Burnett came forward with the confession only when

contacted by Officer

Rusty Keyes with the Hattiesburg Police Department concerning the

burglary. The evidence at trial revealed that on July 3, 2002, Burnett rented a storage unit

in which the items t aken from Stephanie’s home were recovered in August, 2002. Although

both she and Officer Keyes claimed there was no quid pro quo for her testimony, Burnett

was never charged with the burglary.

¶49. During h

er motion for directed verdict, Stephanie argued before the trial court that

Burnett’s testimony should have been stricken due to her motive to fabricate the confession.

After questioning defense counsel about the motion to exclude Burnett’s testimony, the trial

court denied it. The court based its decision upon the following premises. First, Stephanie21

believed that Burnet

t was the burglar that broke into her home. Next, she contended that this

crime gave Burnett the motive to lie. Finally, Stephanie contended believed that Burnett

was of fered a deal by law enforcement officials to testify against her. The trial court found

no evidence to support any of these premises. Further, even if these premises were all true,

the trial court found that there was no evidentiary basis for excluding Burnett’s testimony

from the jury.

¶50. The record reveals that Burn ett was neither a felon nor charged with a felony at the

time of her testimony. Further, she testified without contradiction or impeachment about

the statement made to her by Stephanie. Burnett was cross-examined about this admission

and other related matters, i ncluding her personal life, boyfriends, and the burglary. She

denied having burglarized Stephanie’s house as well as having made any deals with the State

in exchange for her testimony. The trial court ruled that Burnett’s testimony was a matter

for the jury to consider.

¶51. We hold that the trial court did not abuse its discretion in allowing the jury to

consider the testimony of Burnett. As the trial court correctly pointed out, Burnett had

persona l knowledge of the events upon which her testimony was based. Also, her testimony

was relevant to the issue of whether Stephanie committed the murder. The jury was

furnished with the task of weighing this t estimony along with that of all the other witnesses.

We find no error in allowing the jury to hear Burnett’s testimony.

V. Circumstantial evidence instruction.22

¶52. The trial court in this case refused the circumstantial evidence instruction offered

by Stephanie. Stephanie contends that by doing so, the trial court committed error.

Proposed Instruction D-7 was submitted to the trial court as follows:

So long as it is reasona bly possible or probable to account for the evidence

on any reasonable theory or hypothesis consistent with her innocence, the

defendant, Stephanie Stephens, must be acquitted by the jury voting not guilty,

however strongly you believe her to be guilty.

¶53. The trial court ruled that Stephanie’s confession to Burnett raised the proof to more

than circumstantial evidence. Upon this backdrop, the court reasoned that granting a

circumstantial evidence instruction would have been improper. We agree. For the reasons

set forth supra, this assignment of error is completely without merit.

VI. Identity of a confidential informant.

¶54. During pretrial motion hearings, the court considered defense counsel’s request to

disclose the identity of a confidential informant. During the hearing, Officer Keyes

testified that he di

scovered Burnett was a suspect in the burglary of Stephanie’s home

through a confidential informant. This information prompted defense counsel to request

disclosure of the informant’s identity. At the hearing, Keyes testified that the person was

not a confidential informant in the usual sense, but merely a friend of Keyes who had come

to him with information he h ad overheard in a conversation. According to Keyes, the

witness overheard a conversa tion which revealed that Burnett had broken into Stephanie’s

home and taken items. This, in turn, apparently led Keyes to speak to Burnett and learn of

Stephanie’s confession while in Las Vegas.23

¶55. Stephanie argues that Officer Keyes should have been compelled to disclose the

identity of the “confidential informant” so that a further investigation might be conducted

by defens e counsel to prove with more certainty that Burnett in fact had been involved in the

burglary, giving her a motive to implicate Stephanie and test ify as to a confession which

neve r occurred. Essentially, Stephanie claims that the State withheld exculpatory material

in violation of which held that “suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is material either to guilt or

to punishment, irrespective of the good faith or bad faith of t he prosecution.” In

determining whether a Brady violation has occurred, and thus a new trial is ma ndated, this

Court applies the four-part Brady test adopted in King v. St ate, 656 So.2d 1168, 1174

(Miss. 1995), under which the defendant must prove:

i. that the Stat e possessed evidence favorable to the defendant (including

impeachment evidence);

ii. that the defendant does not poss ess the evidence nor could he obtain

it himself with any reasonable diligence;

iii. that the prosecution suppressed the favorable evidence; and

iv. that had the evidence been disclosed to the defense, a reasonable

probability exists that the outcome of the proceedings would have

been different.

Id. See also Carr v. State, 873 So.2d 991, 999 (Miss. 2004). The United States Supreme

Court has since held that not all failures to disclose exculpatory evidenc e constitute

reversible error. Rather, the question is whether there is a “reasonable probability” that the

verdic t would have been different but for governmental evidentiary suppression which

“undermines confidence in the outcome of the trial.” K yles v. W

hitley, 5 14 U.S. 419, 434,24

115 S.Ct 1555, 131 L.Ed.2d 490 (1995) (c iting U nited States v. Bagley, 473 U.S. 667,

678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).

¶56. We need only reach the first prong of the Brady analy sis to determine that this

particular assignment of error is without merit. To prevail under B rady, the defendant must

show that the State posses sed favorable evidence to the defendant. The record does not

establish that this informant was a witness to the crime for which Stephanie was tried.

Further, there

was no evidence that he or she was a witness to the crime which Stephanie

suspects Burnett committed. Also, the informant was never a witness for the prosecution

at any proce eding in the instant action. Additionally, the trial court interviewed the

informant and discovered that the informant received information from overhearing a

conve rsation between two people the informant did not know. The trial court determined

that the informant’s identity was not relevant to any issues regarding whether Stephanie

Stephens had committed the crime charged. M.R.E. 401 states, “‘Relevant Evidence’ means

evidence havin

g any tendency to making the existence of any fact that is of consequence to

the determination of the action more probable or less probable than it would be without the

evidence.” Evidence which is not relevant is not admissible. M.R.E. 402. There was no

indication that the identity of the informant was rel evant to the issues presented in the

instant action.

¶57. Further, Rule 9.04 B2 of the Uniform Rules of Circuit and County Court Practice

(URCCC) provides:

Disclosure of an informant’s ident ity shall not be required unless the

confidential informant is to be produced at a hearing or trial or a failure to

disclose his/her identity will infringe the constitutional rights of the accused25

or unless the informan

t was or depicts himself/herself as an eyewitness to the

events or event constituting the charge against the defendant.

Id. We note that none of the conditions requiring disclosure as set forth in URCCC 9.04

B2 were met in the case sub judice. Thus, considering the facts before us, we hold that the

trial court was correct in refusing to disclose the identity of the informant.

CONCLUSION

¶58. Findi

ng no reversible error in any of the issues raised by Stephanie K. Stephens, we

affirm the judgment of the Forrest County Circuit Court.

¶59. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT

IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,

AFFIRMED.

SMITH , C.J., WALLER, P.J., EASLEY, CARLSON AND RANDOLPH, JJ.,

CONCUR. COBB, P.J., DIAZ AND DICKINSON, JJ., NOT PARTICIPATING.