IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-KA-00721-SCT

ORLANDO GIBSON, a/k/a ORLANDO DEON

GIBSON

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 05/09/97

TRIAL JUDGE: HON. WARREN ASHLEY HINES

COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: MARIE WILSON

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: DEIRDRE McCRORY

DISTRICT ATTORNEY: FRANK CARLTON

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 11/25/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 12/16/98

BEFORE PITTMAN, P.J., ROBERTS AND SMITH, JJ.

ROBERTS, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

¶1. Orlando Gibson was indicted in the Circuit Court of Washington County, Mississippi on August 3,

1996, on one count of aggravated assault, pursuant to Miss. Code Ann. § 97-3-7(2) and one count of

aggravated assault on a law enforcement officer, pursuant to Miss. Code Ann. § 97-3-7(2). On September

6, 1996, Gibson was arraigned and entered a plea of not guilty to all charges. Gibson's trial was continued

by the Court on his motion on October 30, 1996. Gibson failed to appear for trial on or about February 2,

1997, and a bench warrant was issued. On February 4, 1997, an initial forfeiture was taken on Gibson's

bond and a scire facies was issued on the bonding company by the court. On May 5, 1997, trial was held

and the jury returned a verdict of guilty on both charges. On May 9, 1997, Gibson was sentenced to serve

a term of twenty (20) years in the Mississippi Department of Corrections for aggravated assault and a term

of thirty (30) years in the Mississippi Department of Corrections for aggravated assault on a police officer,

with terms to run consecutively.
¶2. Gibson filed a Motion for New Trial or in the Alternative for JNOV on May 12, 1997. The trial court

entered an order overruling the Motion on May 12, 1997. Gibson filed a Notice of Appeal asserting the

following issues:

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

DENIED GIBSON'S MOTION FOR A DIRECTED VERDICT AND WHETHER THE

VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE

EVIDENCE?

II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

SUBMITTED JURY INSTRUCTION S-6 TO THE JURY?

III. A. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN

IT STATED THAT GIBSON WAS NOT ENTITLED TO A SIMPLE ASSAULT

INSTRUCTION?

B. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

DENIED JURY INSTRUCTION D-8?

IV. WHETHER THE STATE VIOLATED BATSON BY USING ALL OF ITS

PEREMPTORY CHALLENGES AGAINST BLACK POTENTIAL JURORS?

V. WHETHER THE SENTENCE RENDERED BY THE TRIAL COURT WAS SO

GROSSLY DISPROPORTIONATE AND EXCESSIVE AS TO WARRANT REVERSAL?

VI. WHETHER GIBSON WAS DENIED A FAIR TRIAL DUE TO THE CUMULATIVE

ERRORS EFFECT MADE AT TRIAL?

STATEMENT OF THE FACTS

¶3. On June 1, 1996, a carnival was held at the Washington County Convention Center. Deputy Joel

Sandifer of the Washington County Sheriff's Department was working in full uniform at the carnival for

security. At Gibson's trial Sandifer testified that sometime between 12:00 and 1:00 a.m., as he and Deputy

Dempsey Hollis were working security in the midway area, a large crowd began screaming and running

towards the deputies. Upon going to the area to see what was happening, Sandifer and Hollis noticed that a

large fight had broken out. Sandifer stated that as they were trying to separate the people, a man took a

swing at him and then ran off. Sandifer chased the man outside of the midway area. According to Sandifer,

when he and the subject rounded one of the rides and entered the parking lot area, the man shot his pistol

back toward the midway area, in the direction of the crowd. Sandifer identified Gibson as the subject he

chased and saw fire the pistol.

¶4. Sandifer further testified that he and Hollis chased Gibson toward a vehicle that was parked in the

parking lot. He stated that as they ran, Gibson was shooting in the two deputies direction. When they came

upon the car, Gibson jumped into the passenger side. Sandifer stated that he noticed that Gibson still had

the pistol in his hand. Sandifer noticed that there was a person in the driver's seat and thus, ordered him to

get out of the car and to get down on the ground. As the driver complied, Gibson jumped out of the back

window and landed on the ground. Gibson further testified that as Gibson was getting up off the ground
with the weapon pointed in the officer's direction, Hollis fired on him.

¶5. Deputy Hollis testified that he also was dressed in full uniform on the night of the incident. He stated that

when he and Sandifer attempted to break up the fight, the officers somehow got separated from each other.

He explained that Sandifer was probably thirty to forty feet away from him. Hollis testified that he heard

gunshots being fired and observed the crowd immediately fan out. He then saw Sandifer running toward the

field between two of the rides and Hollis began to run in towards that direction. Hollis noted that as he was

rounding a ride, he saw Gibson firing a pistol toward himself and Sandifer. He screamed out "Stop, police,"

but Gibson continued to run. Hollis stated that when Gibson fired the last shot that Hollis heard, he cleared

the rides and came to an open area and fired at Gibson, but missed. Hollis also testified that Gibson ran to

the brown Buick, dove into the vehicle through the window, crawled across the front seat of the car, and

finally dove out of the driver's side window. He stated that when Gibson landed on the ground, he was in a

crouched position and still had the gun in his hand. As Gibson pushed himself off of the ground, he pointed

the gun directly at Hollis, who was coming around the side of the car. Hollis testified that it was at this time

that he pointed his gun at Gibson and fired. Gibson immediately fell to the ground. Hollis further noted while

handcuffing Gibson, he saw the weapon just on Gibson's side at the rear tire, probably an arm's reach from

him.

¶6. Sergeant Milton Gaston of the Washington County Sheriff's Department testified that on the night of the

incident, he recovered a .32 revolver at the convention center next to a brown Buick. Gaston turned this

weapon over to Investigator Kelvin McKenzie. Bullet holes were found in a trailer behind the ferris wheel.

¶7. The next witness was for the defense. Joseph Gibson, the defendant's brother, maintained that his

brother never pointed a gun at the crowd or at the deputies. He also stated that his brother put the gun

down before he climbed into the passenger side. However, the gun was found on the driver's side, which is

where Gibson exited the car.

¶8. Terrance Butts also testified that Gibson shot only into the air three or four times, never at the crowd.

¶9. Gibson testified last for the defense. He stated that he fired the gun up in the air about four or five times

in an attempt to break up the fight. According to him, when he was shot by the deputies, he did not have the

gun in his hand. He did not shoot toward the deputies at any time.

DISCUSSION OF THE ISSUES

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

DENIED GIBSON'S MOTION FOR A DIRECTED VERDICT AND WHETHER THE

VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE

EVIDENCE?

A. Weight of the Evidence

¶10. Gibson argues in his first assignment of error that the verdict of the jury was against the overwhelming

weight of the evidence. Here he says that there was no credible evidence which would tend to show that he

had shot at the crowd at the fair or the deputies and that the jury's verdict was for that reason against the

overwhelming weight of the evidence.
¶11. This Court will reverse the jury's findings " 'only where the evidence is such that reasonable and fairminded jurors could only find the defendants not guilty.' " Jackson v. State, 689 So. 2d 760, 766

(Miss.1997)(quoting Heidel v. State, 587 So. 2d 835, 838 (Miss.1991)). In determining ". . . whether or

not a jury verdict is against the overwhelming weight of the evidence, 'this Court must accept as true the

evidence which supports the verdict and will reverse only when it is convinced that the circuit court has

abused its discretion in failing to grant a new trial.'" Coleman v. State, 697 So. 2d 777, 788 (Miss.1997)

(quoting Nicolaou v. State, 612 So. 2d 1080, 1083 (Miss. 1992)); Herring v. State, 691 So. 2d 948,

957 (Miss.1997); Jackson, 689 So. 2d at 766. "Only in those cases where the verdict is so contrary to the

overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will

this Court disturb it on appeal." Pleasant v. State, 701 So. 2d 799, 802 (Miss.1997); Herring, 691 So.

2d at 957; Benson v. State, 551 So. 2d 188, 193 (Miss.1989)(citing McFee v. State, 511 So. 2d 130,

133-34 (Miss.1987)).

B. Sufficiency of the Evidence

¶12. Gibson also contends that the trial court erred in ruling that the evidence was legally sufficient to

support a conviction of aggravated assault and aggravated assault on a law enforcement officer and that he

is entitled, as a matter of law, to a reversal. He argues that the evidence is legally insufficient to support a

conviction of aggravated assault. "When reviewing the sufficiency of the evidence, this Court looks at the

lower court's ruling `on the last occasion when the sufficiency of the evidence was challenged.'" Ballenger

v. State, 667 So. 2d 1242, 1252 (Miss. 1995), quoting Green v. State, 631 So. 2d 167, 174 (Miss

1994)). The last occasion upon which Gibson challenged the sufficiency of the evidence was in his Motion

for JNOV. Therefore, this Court is to consider all of the evidence presented throughout the course of the

trial. "All evidence and inferences derived therefrom, tending to support the verdict, must be accepted as

true, while all evidence favoring the defendant must be disregarded." Ballenger, 667 So. 2d at 1252. See

Hart v. State, 637 So. 2d 1329, 1340 (Miss. 1994); Clemons v. State, 460 So. 2d 835, 839 (Miss.

1984). "Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the

jury." Wetz v. State, 503 So. 2d 803, 808 (Miss. 1987). Therefore, this Court will not disturb a jury's

finding unless it is found that no reasonable and fair-minded hypothetical juror could find beyond a

reasonable doubt that the defendant was guilty. Ballenger, 667 So. 2d at 1252-53.

C. Analysis

¶13. The jury found Gibson guilty of aggravated assault and aggravated assault on a law enforcement officer

pursuant to Miss. Code Ann. § 97-3-7(2):

(2) A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another,

or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme

indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes

bodily injury to another with a deadly weapon or other means likely to produce death or serious

bodily harm; and, upon conviction, he shall be punished by imprisonment . . . in the penitentiary for

not more than twenty (20) years. Provided, however, a person convicted of aggravated assault (a)

upon a . . . law enforcement officer . . .while such . . . law enforcement officer . . . is acting within the

scope of his duty, office or employment . . . shall be punished . . . by imprisonment for not more than

thirty (30) years.

Miss. Code Ann. § 97-3-7(2) (1994).
¶14. Accepting as true the evidence that supports the jury's verdict, there is no merit to Gibson's assignment

of error. Deputies Sandifer and Hollis both testified that Gibson fired a weapon in the direction of the

midway which was crowded with people. Additionally, both deputies testified that as they chased Gibson

toward the parking lot, he shot in their direction. Hollis testified unequivocally that he saw Gibson fire at him.

This testimony amply supports the jury's finding and the court's refusal to order a new trial. Davis v. State,

476 So. 2d 608, 610 (Miss. 1985). See also Moore v. State, 617 So. 2d 272, 274 (Miss. 1993). The

testimony to the contrary simply created issues of fact to be determined by the jury. The jury obviously

determined the facts were against Gibson. Therefore, this Court believes that the jury verdict was not

against the overwhelming weight of the evidence.

¶15. Furthermore, based on the facts above, we conclude that the evidence was legally sufficient to support

a finding of guilty as to the charge of aggravated assault and aggravated assault upon a law enforcement

officer. Once a jury has returned a verdict of guilty in a criminal case, the Supreme Court is not at liberty to

direct that the defendant be discharged short of a conclusion that based on the evidence, taken in a light

most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt that

the defendant was guilty. Fleming v. State, 604 So. 2d 280, 287 (Miss. 1992). As such, Gibson's first

assignment of error is without merit.

II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

SUBMITTED JURY INSTRUCTION S-6 TO THE JURY?

¶16. Gibson next challenges the trial court's granting of Instruction S-6, set out as follows:

The Court instructs the Jury that no person has the right to resist or obstruct his lawful arrest, by a law

enforcement officers by force, or violence, or threats, or by any other manner.

Gibson asserts on appeal that this instruction was essentially a comment by the trial judge on evidentiary

matters. However, defense counsel's objection at trial was, "I don't think there's anything in the case that

suggests that he resisted arrest by violence or threats or any other manner. I don't think that's been shown in

this case." The court disagreed, stating, "Well I think the testimony of the Deputy was that he instructed the

man to stop and the man pulled--pointed a gun at him. I would say that's rather violence [sic] if the jury

believes the officer's testimony. That one is given." Thus, the only challenge to instruction S-6 was a lack of

evidentiary support. On appeal, Gibson is limited to the position taken at trial. Roundtree v. State, 568

So. 2d 1173, 1177 (Miss. 1990). The issue of whether this instruction constituted an impermissible

comment on the weight of the evidence was not presented to the trial court and thus, is not properly before

this Court. Thornhill v. State, 561 So. 2d 1025, 1029 (Miss. 1989). Therefore, Gibson's second

assignment of error is without merit.

¶17. Notwithstanding the procedural bar, this Court will address this issue on the merits. Jury instructions

are to be granted only where evidence has been presented which supports the instruction. Tharp v. Bunge

Corp., 641 So. 2d 20, 26 (Miss. 1994). "'A party to an action is entitled to have the jury instructed

regarding a genuine issue of material fact so long as there is credible evidence in the record which would

support the instruction.'" Sumrall v. Mississippi Power Co., 693 So. 2d 359, 363 (Miss. 1997) (quoting

Copeland v. City of Jackson, 548 So. 2d 970, 973 (Miss. 1989) (quoting Hill v. Dunaway, 487 So.

2d 807, 809 (Miss. 1986))). The Court finds that there was a sufficient evidentiary basis in the record to

support an instruction regarding resisting arrest. As stated above, Deputy Hollis testified that he instructed
Gibson to stop and notified Gibson that he was the police. Gibson pointed a gun in the deputy's direction,

fired and continued to run away. This is credible evidence of resisting arrest by means of violence-firing of a

gun at the deputy. Therefore, regardless of the fact that this issue is procedurally barred, the trial court was

correct in its decision to allow instruction S-6. This issue is found to be without merit.

III. A. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN

IT STATED THAT GIBSON WAS NOT ENTITLED TO A SIMPLE ASSAULT

INSTRUCTION?

B. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

DENIED JURY INSTRUCTION D-8?

A. Simple Assault Instruction

¶18. Gibson also assigns as error the refusal of the trial court to grant him a requested instruction authorizing

a conviction of simple assault under Miss. Code Ann. § 97-3-7(1). The use of a .32 revolver, a deadly

weapon, precluded Gibson's entitlement to any simple assault instruction. Hunt v. State, 569 So. 2d 1200,

1203 (Miss. 1990). In Hutchinson v. State, 594 So. 2d 17 (Miss.1992), this Court held that when an

accused wields a weapon that is without question deadly and then intentionally strikes his victim, he is not

entitled to a lesser included offense instruction for simple assault, even if the injury is relatively slight. The

weapon in this case was a .32 revolver. No jury could fail to find a revolver to be a deadly weapon. Based

on Hutchinson, the trial court committed no error when it refused the Jury Instruction.

B. Instruction D-8

¶19. Gibson next contends that the trial court erred in refusing instruction D-8, which would have given the

jury the option of finding him guilty of the lesser offense of disturbing the peace rather than aggravated

assault. This instruction was denied by the trial court on the basis that disturbing the peace was not a lesser

included offense of aggravated assault.

¶20. In numerous cases we have set forth the guidelines as to when a lesser included offense instruction is

proper, indeed mandatory: Harper v. State, 478 So. 2d 1017 (Miss.1985); Lee v. State, 469 So. 2d

1225 (Miss.1985); Fairchild v. State, 459 So. 2d 793, 801 (Miss.1984).

[A] lesser included offense instruction should be granted unless the trial judge--and ultimately this

Court--can say, taking the evidence in the light most favorable to the accused, and considering all

reasonable favorable inferences which may be drawn in favor of the accused from the evidence, that

no reasonable jury could find the defendant guilty of the lesser included offense (and conversely not

guilty of at least one essential element of the principal charge).

Harper v. State, 478 So. 2d at 1021. See also Stevens v. State, 458 So. 2d 726 (Miss.1984); Lacy v.

State, 432 So. 2d 1205 (Miss.1983); Colburn v. State, 431 So. 2d 1111 (Miss.1983); In re Jordan,

390 So. 2d 584 (Miss.1980). This case focuses upon another delineation of when the lesser included

offense instruction should not be given.

¶21. Before Gibson would be entitled to a lesser included offense instruction, there would have to be some

proof which showed him innocent of aggravated assault, but at the same time guilty only of disturbing the

peace. Harper, 478 So. 2d at 1021. The evidence in this case does not support any such contention,
because the very proof which made out a case of aggravated assault, purposely or knowingly shooting a

gun near a very large crowd of people, likewise made out a case of disturbing the peace. Indeed, the

requested instruction D-8 set forth:

Disturbing the peace is committed by a person who disturbs the public peace, or the peace of other

by violent or boisterous conduct or when one seeks to intimidate another person by conduct

calculated to breach the peace. (Emphasis added).

This requested instruction is no more than the contention that where an accused is guilty of two crimes, the

State can only prosecute and punish him for the one with the lesser penalty. We have repeatedly rejected

this contention. Cumbest v. State, 456 So. 2d 209, 222-23 (Miss.1984).

¶22. We cannot improve upon the language of the New York Court of Appeals when it addressed this

point:

The principle has, accordingly, evolved that the submission of a lesser degree of an included crime is

justified only where there is some basis in the evidence for finding the accused innocent of the higher

crime, and yet guilty of the lower one.... The trial court may not, however, permit the jury to choose

between the crime charged and some lesser offense where the evidence to support a verdict of guilt

of the latter necessarily proves guilt of the greater crime as well.

People v. Mussenden, 308 N.Y. 558, 127 N.E.2d 551, 554 (1955). Finding no reversible error was

committed in the trial of this case, this Court finds this issue without merit.

IV. WHETHER THE STATE VIOLATED BATSON BY USING ALL OF ITS

PEREMPTORY CHALLENGES AGAINST BLACK POTENTIAL JURORS?

¶23. Gibson alleges that the trial court committed error in overruling his Batson challenges with respect to

five potential jurors. On appellate review, the trial court's determinations under Batson v. Kentucky, 476

U.S. 79 (1986), are accorded great deference because they are based in a large part, on credibility.

Coleman v. State, 697 So. 2d 777, 785 (Miss. 1997). "'Great deference' has been defined in the Batson

context as insulating from appellate reversal any trial findings which are not clearly erroneous." Lockett v.

State, 517 So. 2d 1346, 1349-50 (Miss. 1987).

¶24. Under Batson, the party objecting to the peremptory challenge must first make a prima facie showing

that race was the criteria for the exercise of the peremptory strike. Batson v. Kentucky, 476 U.S. 79, 96-

97 (1986); Stewart v. State, 662 So. 2d 552, 557 (Miss. 1995). To do this, the defendant must show: 1)

that he is a member of a "cognizable racial group;" 2) that the prosecutor has exercised peremptory

challenges toward the elimination of veniremen of his race; and 3) that facts and circumstances raised an

inference that the prosecutor used his peremptory challenges for the purpose of striking minorities. Conerly

v. State, 544 So. 2d 1370, 1372 (Miss.1989)(citing Batson, 476 U.S. at 96-97). Should the defendant

make such a showing, the burden then shifts to the party exercising the challenge to offer a race-neutral

explanation for striking the potential juror. Batson, 476 U.S. at 97-98; Stewart, 662 So. 2d at 558. If a

racially neutral explanation is offered, the defendant may rebut the explanation. Bush v. State, 585 So. 2d

1262, 1268 (Miss.1991). Finally, the trial court must determine whether the objecting party has met its

burden to prove that there has been purposeful discrimination in the exercise of the peremptory. Batson,

476 U.S. at 98; Stewart, 662 So. 2d at 558.
¶25. In the case sub judice, after the state exercised its peremptory challenges and tendered the panel,

defense counsel stated, "Your Honor, we'd make the Batson challenges on all of the jurors who have been

struck by the State. They're all black." Finding that the defense had made a prima facie showing that race

was the criteria for the exercise of the peremptory challenge, the trial court looked to the State who offered

its racially neutral reasons for the strikes--pink eye, single, unemployed, physical address and housewife--

which the trial court accepted. The challenge as to one of the strikes, that the potential juror had pink eye

and was wearing sunglasses, was withdrawn by the defense. Thus, that challenge is not at issue on appeal.

As to the next two jurors, juror 2 was thirty-five years old, had three children and no husband. Juror 6 was

twenty-eight, had two children and was unemployed. All of these reasons have been held to be racially

neutral. Lockett v. State, 517 So. 2d 1346, 1356-57 (Miss. 1987). In Lockett v. State, 517 So. 2d

1346 (Miss. 1987), this Court presented a list of reasons accepted as race neutral by other courts

throughout the country in an effort to provide guidance to trial judges in this state, including age, demeanor,

marital status, single with children, prosecutor distrusted juror, educational background, employment

history, criminal record, young and single, friend charged with crime, unemployed with no roots in the

community, posture and demeanor indicated juror was hostile to being in court, juror was late, and short

term employment. Lockett, 517 So. 2d at 1356-57; Davis v. State, 660 So. 2d 1228, 1242 (Miss.

1995). In light of Lockett, the explanations given by the State on jurors 2 and 6 are race-neutral.

¶26. The two remaining strikes were based on the area of residence of the potential jurors. Specifically, the

prosecutor struck Valerie Redmon because she lived on North Broadway Street and Randy Lamar

McGhee because he lived on Theobald Street. This reason is racially neutral on its face. When the defense

challenged these two strikes, the assistant district attorney clarified his position as follows:

It's a very bad neighborhood and I'm sure shootings occur there all the time and, therefore, shootings

may not bother them as much as it would someone else, they may be used to it. The same as for a

person who lives on Theobald.

Your Honor, if there had been white folks living on Theobald, I would do the exact same thing.

The court then made this finding:

Well, the Court notes that there are a lot of shootings in that area, both of those areas, both of those

streets there are also a lot of white parts of that area where there's also been a lot of shooting, so that

is a race neutral reason. I will overrule the objection.

¶27. In responding to the reasons given by the State, the defense argued "that the reasons given for

exclusion were only superficial race neutral reasons that were simply a facade to mask the racially

discriminatory purposes behind the strikes." Harper v. State, 635 So. 2d 864, 868 (Miss. 1994). In

Harper, this Court effectively discredited such an argument with the following:

Determining whether there lies a racially discriminatory motive under the State's articulated reasons is

left to the sole discretion of the trial judge . . . . Moreover, a lower court's factual findings are given

due deference and will not be overturned unless there appears an error that is against the

overwhelming weight of the evidence.

Harper, 635 So. 2d at 868. (citations omitted). Accord, Chase v. State, 645 So. 2d 829, 843 (Miss.

1994); Perry v. State, 637 So. 2d 871 (Miss. 1994); Porter v. State, 616 So. 2d 899, 907 (Miss.
1993). Furthermore, the United States Supreme Court explained in Purkett v. Elem, 514 U.S. 765

(1995):

The second step of this process does not demand an explanation that is persuasive, or even plausible.

"At this [second] step of the inquiry, the issue is the facial validity of the prosecutor's explanation.

Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be

deemed race neutral."

Purkett, 514 U.S. at 767-68 (citations omitted). The Supreme Court went on to emphasize that the

justification tendered at the second step must rise only to the level of being facially nondiscriminatory. It

need not be even "minimally persuasive" and may indeed be even "silly or superstitious." Purkett, 514 So.

2d at 768. At that point, the court must determine whether the strike has a showing of purposeful

discrimination. There is no evidence of purposeful discrimination in the case sub judice. This Court will not

reverse a trial judge's factual findings relative to a prosecutor's use of peremptory challenges on minority

persons unless they appear clearly erroneous or against the overwhelming weight of the evidence. Stewart,

662 So. 2d at 558. Looking at the record, we cannot say that the trial court clearly erred in overruling the

Batson challenge. Accordingly, this assignment of error is without merit.

V. WHETHER THE SENTENCE RENDERED BY THE TRIAL COURT WAS SO

GROSSLY DISPROPORTIONATE AND EXCESSIVE AS TO WARRANT REVERSAL?

¶28. Gibson argues that his sentence of a total of fifty (50) years is grossly disproportionate to the crimes

for which he was convicted. "Sentencing is within the complete discretion of the trial court and not subject

to appellate review if it is within the limits prescribed by statute." Hoops v. State, 681 So. 2d 521, 537

(Miss. 1996). "'Further, the general rule in this state is that a sentence cannot be disturbed on appeal so

long as it does not exceed the maximum term allowed by statute.'" Hoops, 681 So. 2d at 538 (quoting

Fleming v. State, 604 So. 2d 280, 302 (Miss. 1992). However, this Court will use the three-pronged

analysis as set forth by the United States Supreme Court in Solem v. Helm, but only when a threshold

comparison of the crime committed to the sentence imposed leads to an inference of "gross

disproportionality." Hoops, 681 So. 2d at 538. The three factors set out in Solem for courts to consider

when conducting a proportionality analysis are:

(a) gravity of the offense and the harshness of the penalty;

(b) sentences imposed on other criminals in the same jurisdiction; and

(c) sentences imposed for the commission of the same crime in different jurisdictions.

Solem v. Helm, 463 U.S. at 292 (1983) (overruled in Harmelin v. Michigan, 501 U.S. 957, 965-66

(1991), to the extent that it found a guarantee of proportionality in the Eighth Amendment). Rummel v.

Estelle, 445 U.S. 263 (1980), serves as a guide in the determination of this threshold comparison. The

defendant in Rummel was sentenced to life in prison with the possibility of parole under a recidivist statute

for a third non-violent felony conviction. Although the total loss from the three crimes was less than

$250.00, the United States Supreme Court found Rummel's sentence to be proportionate and not violative

of the Eighth Amendment. Id.

¶29. In light of Rummel, it cannot be argued that Gibson's sentence was grossly disproportionate to his

crime. For crimes classifiable as felonies in which significant terms of imprisonment in the state penitentiary
can be given, the length of the sentence actually imposed is purely a matter of legislative prerogative.

Hopson v. State, 625 So. 2d 395, 404 (Miss. 1993). Therefore, as long as the sentence is within the limits

of the statute, the imposition of such sentence is within the sound discretion of the trial court and this Court

will not reverse it. On balance, these facts do not lend themselves to a finding that Wall received a sentence

grossly disproportionate to his crimes. The punishment for the crime of aggravated assault is no more than

twenty (20) years in the penitentiary. The punishment for aggravated assault upon a law enforcement officer

is no more than thirty (30) years in the penitentiary. Although Gibson was sentenced to the maximum time

on both crimes, it was well within the limits of the statute. Therefore, an extended proportionality review

under Solem is not warranted. Giving deference to the trial judge on the imposition of Gibson's sentence,

we find that there is no merit to this assignment of error.

VI. WHETHER GIBSON WAS DENIED A FAIR TRIAL DUE TO THE EFFECT OF

CUMULATIVE ERRORS MADE AT TRIAL?

¶30. Gibson finally invokes the cumulative error doctrine in asserting that his conviction should be reversed.

Because he did not present this argument in the trial court, this issue may not be raised on appeal. Howard

v. State, 507 So. 2d 58, 63 (Miss. 1987). This Court has held that "[a] trial judge cannot be put in error

on a matter which was not presented to him for decision." Howard, 507 So. 2d at 63.

¶31. Notwithstanding the procedural bar, this Court will discuss this issue on its merits. Gibson claims that

cumulative individual errors operated to deprive him of a fundamentally fair trial. This Court has held that

individual errors, not reversible in themselves, may combine with other errors to make up reversible error.

Hansen v. State, 592 So. 2d 114, 142 (Miss.1991); Griffin v. State, 557 So. 2d 542, 553 (Miss.1990)

. The question under these and other cases is whether the cumulative effect of all errors committed during

the trial deprived the defendant of a fundamentally fair and impartial trial. Where there is "no reversible error

in any part, ... there is no reversible error to the whole." McFee v. State, 511 So. 2d 130, 136

(Miss.1987). We have examined each one of Gibson's complaints and hold the cumulative effect of all

alleged errors was not such as to deny the defendant a fundamentally fair trial. See Miss. R. Evid. 103(a);

Williams v. State, 595 So. 2d 1299, 1310 (Miss.1992). In fact, we have determined that all five of

Gibson's assignments of error lack merit. Therefore, this Court further concludes that the cumulative effect

of these alleged errors do not merit reversal of Gibson's guilt.

CONCLUSION

¶32. Specifically, this Court finds that: (1) the trial court did not commit reversible error in denying Gibson's

motion for a directed verdict and a new trial; (2) the trial court did not commit reversible error in granting

jury instruction P-6; (3) the trial court did not commit reversible error in denying jury instruction D-8 and a

simple assault instruction; (4) the trial court did not commit reversible error in overruling Gibson's Batson

objection during the jury selection; (5) the sentence rendered by the trial court was not grossly

disproportionate and shockingly excessive to the crimes for which Gibson was found guilty; and (6) Gibson

was not denied a fair trial due to the effect of cumulative errors on the part of the trial judge.

¶33. COUNT I: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF

TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF

CORRECTIONS AFFIRMED. COUNT II: CONVICTION OF AGGRAVATED ASSAULT ON

A LAW ENFORCEMENT OFFICER AND SENTENCE OF THIRTY (30) YEARS IN THE

CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAYMENT OF
A FINE AFFIRMED. COUNT II SHALL RUN CONSECUTIVELY WITH COUNT I.

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

WALLER, JJ., CONCUR. BANKS, J., CONCURS IN RESULT ONLY.