IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-KA-00692-SCT

ANTHONY MELTON, a/k/a ANTHONY P. MELTON

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 01/23/97

TRIAL JUDGE: HON. JOHN B. TONEY

COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: WILLIAM ANDY SUMRALL

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: JEAN SMITH VAUGHAN

DISTRICT ATTORNEY: JOHN KITCHENS

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 11/12/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 12/3/98

BEFORE SULLIVAN, P.J., MILLS AND WALLER, JJ.

MILLS, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

¶1. Anthony Melton was convicted of murder by a Rankin County jury and sentenced to life imprisonment

in the custody of the Mississippi Department of Corrections. Aggrieved, Melton brings this appeal,

assigning as error the following:

I. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE IDENTIFICATION OF A

CAR BY TONYA BROWN AND ADMISSION OF PICTURES OF THE AUTOMOBILE

OVER MELTON'S OBJECTION.

II. WHETHER THE TRIAL COURT ERRED IN ALLOWING RONNIE PENNINGTON TO

TESTIFY AS TO THE STATEMENTS OF JULIE CARPENTER OVER MELTON'S

OBJECTION.

III. WHETHER THE TRIAL COURT ERRED IN OVERRULING MELTON'S MOTION IN

LIMINE REGARDING DEBBIE GLENN'S TESTIMONY.
IV. WHETHER THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT

OF THE EVIDENCE.

STATEMENT OF THE FACTS

¶2. Chris and Julie Carpenter had been married for eight years in 1996 and had three children. They were

experiencing marital problems and Julie had been away from home in the weeks preceding Chris

Carpenter's murder. They lived in Rankin County, Mississippi, within 150 yards of Anthony Melton's trailer.

Anthony Melton borrowed a .25 caliber automatic gun from Chester Glenn during the first week of

February 1996, ostensibly to shoot a dog which had been harassing children in the neighborhood. There

were three rounds in the gun when Glenn loaned it to Melton.

¶3. Chris Carpenter was murdered February 8, 1996. He was shot three times with Glenn's .25 caliber

automatic gun. He was also strangled with a nylon rope which was recovered with the body. There were

two shots to his head and one shot to his back. His blood, a belt loop similar to one missing from his jeans,

and his watch were found around 50 feet behind Melton's trailer.

¶4. Cheryl Twilley, a neighbor who lived a "stone's throw" away, heard two shots around 10:00 a.m. or

11:00 a.m. on the morning of the murder followed by a third shot a few minutes later. She testified the shots

came from the direction of Anthony Melton's property.

¶5. Tonya Brown, a student on her way home from Pisgah High School, saw a maroon late model car

which she later identified as Melton's car backed up to a dirt bank on Highway 43 in Rankin County around

2:00 p.m. There were two people standing outside the car, including a white man fitting Melton's

description.

¶6. A day later, Roy McCrory found Chris Carpenter's body behind the dirt bank near the side of Highway

43 in Rankin County. A rope used to strangle Carpenter was found along with a blanket covering a large

portion of Carpenter's body. The Rankin County Sheriff's Department could not identify the body. Around

lunch that day or the next day, Anthony Melton returned the cleaned gun he had borrowed from Chester

Glenn. The three rounds left in the gun by Glenn had been used.

¶7. On February 13, five days after the murder, Julie Carpenter reported her husband missing and his body

was identified later that day by Rachel Callahan, Julie's friend and co-worker. Bill Carpenter, Chris

Carpenter's father, saw Melton's car in Julie and Chris Carpenter's driveway on Sunday, two days before

Julie Carpenter reported her husband missing.

¶8. The school bus driver for the Carpenter children took them to Melton's residence instead of their home

on the day after the murder occurred and again on the day before Julie Carpenter reported her husband

missing. The bus driver testified that parental consent was given, as required, before leaving the children at a

location other than their own residence.

¶9. Rachel Callahan, a friend and co-worker of Julie Carpenter, testified that Melton and Julie Carpenter

were "going together" in the weeks prior to the murder. Callahan and her boyfriend, Robert Britton,

recounted Melton's oral accounts and Julie's approval of ways he could kill Chris Carpenter. Melton

described how he could kill Chris Carpenter during a card game at Callahan's home where Melton, Julie
Carpenter, Callahan, and Britton were present. Britton testified Melton and Julie had been at Callahan's

house together at least twice while he was present. Additionally, Callahan testified she did not know a gun

was used in the murder until Melton asked her whether or not prints were lifted from the gun.

¶10. John Murphy, a cell mate of Melton, testified that Melton confessed to the murders while awaiting trial.

Melton contends Murphy's statements were made only in an attempt to receive special treatment or a plea

bargain. However, Murphy testified that he had received no "favors" because of his testimony.

¶11. At trial, Melton disputed his location on the day of the murder. Nancy Williams, a neighbor, testified he

was at her house working on her frozen pipes the day of the murder and two other days that week from

7:30 a.m. until lunch. The appellant's brother, Terry Melton, also testified that the appellant visited him at

work from around 12:30 p.m. until just before 2:00 p.m. on February 8, 1996.

I. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE IDENTIFICATION OF

MELTON'S CAR BY TONYA BROWN AND ADMISSION OF PICTURES OF THE

AUTOMOBILE OVER MELTON'S OBJECTION.

¶12. Melton contends there was a violation of his Sixth Amendment right to a fair trial when Tonya Brown

was allowed to identify his car. He objects to her identification at the police station where she was shown a

picture of the car, and he objects to her identification of the car at the impound lot. Melton asserts the car

was the only auto on the lot when Brown identified it while Brown testified there were several cars but the

car she identified was the only maroon one.

¶13. The state contends the appellant failed to raise this error in his motion for a new trial and is thus

procedurally barred from raising it now. Alternately, the state contends the defendant cites no authority for

his position that identification of cars should be afforded the same procedural safeguards as identification of

suspects. Finally, the state contends the identification of Melton's car did not deny his right to a fair trial.

Tonya Brown had an adequate opportunity to view the car on the day it was parked near the dirt pile. She

testified that she noticed the car because it was similar to one driven by her boyfriend and no doubt she

spent time trying to distinguish the car from her boyfriend's car. She described it to police before being

shown a photo of the car or identifying it at the impound lot.

¶14. In prescribing which errors must be included in a motion for a new trial to be preserved on appeal, this

Court has held, "[a]ll new matters, no[t] shown of record and not merely cumulative irregularities, mistakes,

surprises, misconduct and newly discovered evidence" must be brought to the attention of the trial judge

before the Court is allowed to review them. Jackson v. State, 423 So.2d 129 (Miss. 1982)(quoting

Colson v. Sims, 220 So.2d 345, 346 n.1 (Miss. 1969)). Counsel for Melton objected during the trial to

this evidence; therefore it was a matter of record and it was not necessary that he list it in his motion for a

new trial. " [I]t is not necessary to make a motion for a new trial grounded upon errors shown in the official

transcript of the record. . . ." Colson, 220 So. 2d at 346 n.1.

¶15. We have held an appellant's failure to cite any authority in support of assignments of error precludes

this Court from considering these issues on appeal. Grey v. Grey, 638 So.2d 488, 491 (Miss. 1994)

(citing Matter of Estate of Mason v. Fort, 616 So.2d 322, 327 (Miss.1993)). While failure to cite

authority should not be considered a procedural bar, this Court is not bound to consider an unsupported

argument.
¶16. In Ohio v. Roberts, which Melton cites, the United States Supreme Court allowed the testimony of a

witness who did not appear at defendant's trial when the witness had testified at the preliminary hearing.

Ohio v. Roberts, 448 U.S. 56 (1980). She had been subject to questioning that was the equivalent of

cross- examination and was unavailable to appear at trial. Id. Ohio does not address identification, the

very issue for which Melton cites it as support. The United States Supreme Court has dealt with

identification and the attachment of Sixth Amendment rights in several cases. See United States v. Wade,

388 U.S. 218 (1967); Kirby v. Illinois, 406 U.S. 682 (1972). However, this line of cases addresses the

identification of human beings not automobiles. There is no rational basis for Melton's argument and we find

it without merit.

II. WHETHER THE TRIAL COURT ERRED IN ALLOWING RONNIE PENNINGTON TO

TESTIFY AS TO THE STATEMENTS OF JULIE CARPENTER OVER MELTON'S

OBJECTION.

¶17. Melton asserts Officer Ronnie Pennington's testimony should have been limited to what he personally

observed or did. He asserts that Pennington's testimony as to what Julie Carpenter said was hearsay and

should not have been allowed by the trial court. Melton objects to testimony by Pennington which relates to

Julie Carpenter's inconsistent statements regarding her relationship with Melton. Pennington testified Julie

Carpenter first stated she knew Melton only vaguely then later admitted they had a sexual relationship.

¶18. The state contends this matter has not been preserved for appeal since the judge's reasoning for

overruling the appellant's objection is not part of the record. In the alternative, the state submits any harm

was cured by rephrasing the question to limit the testimony only to the inconsistent statements of Julie

Carpenter.

¶19. This Court has addressed a similar situation in which the appellant specified all "in chamber

conferences" were to be included on appeal and nevertheless a bench conference on a hearsay ruling was

not included in the record. We held:

Under the circumstances, we perceive no grounds for charging [the appellant] and his attorney with

responsibility for the fact that the court reporter did not take down what transpired. . . . On the other

hand, we do not think it appropriate that we invent matters not fairly within the record. We approach

the critical portion of the trial with a common sense awareness of how at the trial level court and

counsel proceed regarding objections of the sort here made.

Lambert v. State, 574 So.2d 573, 577-578 (Miss. 1990)(citation omitted).

¶20. In this case, Melton noted that all "objections, arguments, responses and rulings by the Court" should

be included in the record for appeal. At the first possible moment, counsel for Melton objected to "hearsay"

and was sustained. However, upon renewing his motion later in the testimony, counsel for the appellant was

overruled after a bench discussion which had been designated "Off The Record."

¶21. The distinction between the two rulings appears to be premised on the fact that Pennington was

exposing inconsistent statements of Julie Carpenter. This sort of testimony might have been allowed under

Miss. Rule of Evid. 613(b) as impeachment evidence if Julie Carpenter had been a witness and was

afforded an opportunity to explain the inconsistency. However, Julie Carpenter was not a witness in this

trial. Therefore, Pennington's statements fall into the category of hearsay under Miss. Rule of Evid. 802. His
testimony does not come within an exception to the hearsay rule enumerated in Rule 803 and allowing this

testimony was error.

¶22. Melton asserts that admitting hearsay constitutes reversible error. He cites Balfour v. State, 598

So.2d 731 (Miss. 1992). However, the defendant's case in Balfour was reversed for violations of the

Fifth, Sixth and Fourteenth amendments. Id. at 756. Our inquiry is whether the error merits reversal. Did

the admission of this evidence abridge Melton's right to a fair trial? Lambert, 574 So.2d at 578.

Pennington's testimony served to impeach Julie Carpenter's character for truthfulness. It may have also lent

credence to the state's theory that Julie Carpenter and Melton were having an affair, showing Melton's

motive for murdering Chris Carpenter. The testimony of Julie Carpenter's friend Rachel Callahan and her

boyfriend Robert Britton brought out similar facts. They stated that Melton and Julie were "going together."

Additionally, Bill Carpenter's testimony that his son and Julie had been having trouble and that he saw

Melton's car in the couple's driveway reinforced evidence of a relationship. The bus driver's testimony that

she was instructed to drop the Carpenter children at Melton's house in the days before Julie reported Chris

missing did the same.

¶23. In addition to the similar testimony, there was sufficient evidence to convict Melton without

Pennington's account of Julie Carpenter's statements. John Franovich, a forensic scientist with the

Mississippi Crime Laboratory, testified that the bullets recovered from Chris Carpenter's body were fired

from the gun Melton borrowed from Mr. Glenn. Blood evidence fifty feet behind Melton's trailer pinpointed

the site of Carpenter's death, and Tonya Brown identified Melton's car as the one she saw later the day of

the murder backed up to the bank where the body was found. She also testified a man fitting Melton's

description was standing near the car. Finally, John Murphy, a cell mate of Melton, testified Melton

confessed to the murder while awaiting trial. The jury would not have returned a different verdict had it not

heard the hearsay testimony in issue; therefore, the error in admitting this testimony is insufficient to require

reversal.

III. WHETHER THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT'S

MOTION IN LIMINE REGARDING DEBBIE GLENN'S TESTIMONY.

¶24. Melton contends the trial court should have sustained his motion in limine regarding the testimony of

Debbie Glenn since he contends all Ms. Glenn's knowledge about the events in question came from her

husband, Chester Glenn. The state argues this motion is not preserved on appeal and is therefore barred.

The state also asserts that no hearsay testimony was allowed from Debbie Glenn except one sentence

which was remedied by an instruction from the judge. The state contends there was no error by the trial

judge.

¶25. A trial judge enjoys wide discretion with regard to the relevancy and admissibility of evidence. Fisher

v. State, 690 So.2d 268, 274 (Miss. 1996). We will not reverse a trial judge's evidentary ruling unless the

judge commits an abuse of discretion prejudicial to the party bringing the motion. Fisher, 690 So.2d at

274.

[Motions in limine] should be granted only when the trial court finds two factors present: the evidence

in question will be inadmissible at trial under the rules of evidence and that mere offer, reference, or

statements made during trial concerning the evidence will tend to prejudice the jury.

Hopkins v. State, 639 So.2d 1247, 1254 (Miss.1993).
¶26. A contemporaneous record of the motion in limine by the appellants was not preserved in this case.

However, it was later made a part of the record. While any testimony by Ms. Glenn which simply reiterated

her husband's testimony should be excluded as prejudicial, it is clear that she did have first-hand knowledge

of some of the events around the time her husband loaned the gun in question to Melton.

¶27. She described where the gun was kept. She testified it was last fired six months prior to the week of

February 5, 1996. She personally knew there were three rounds left in the gun prior to the week of

February 5, 1996, and she personally discovered the gun was missing that week. She also saw her husband

walking down the hall with the gun. All objections by appellants to Ms. Glenn's testimony were sustained

and in one instance an instruction was given to the jury to disregard what she said. The trial judge instructed

the parties that the hearsay objection would be sustained unless Ms. Glenn could testify based on her own

knowledge. Melton suffered no prejudice since the trial judge carefully protected the testimony to avoid

entry of inadmissible hearsay. The judge did not abuse his discretion in denying the appellant's motion in

limine and allowing Ms. Glenn to testify. This assignment of error is without merit.

IV. WHETHER THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT

OF THE EVIDENCE.

¶28. Melton contends the jury's verdict was against the overwhelming weight of the evidence and therefore

the court erred in failing to grant any of the following: a directed verdict motion, a preemptory instruction for

acquittal, a motion for judgment notwithstanding the verdict, or a motion for a new trial. In opposition, the

state retorts that there was ample support for the jury's verdict and it should not be overturned.

¶29. It is well settled that our authority to interfere with a jury's verdict is very limited. Benson v. State,

551 So.2d 188, 192-93 (Miss. 1989). This Court has held, "To determine whether a jury verdict is against

the overwhelming weight of the evidence, [this Court] view[s] all of the evidence in the light consistent with

the verdict and we give the State all favorable inferences which may be drawn from the evidence." Strong

v. State, 600 So.2d 199, 204 (Miss. 1992) (citing Corley v. State, 584 So.2d 769, 773 (Miss 1991)).

We will reverse only when the trial court has abused its discretion in refusing to grant a new trial. Strong,

600 So.2d at 204. We will only grant a new trial when allowing the verdict to stand would "sanction an

unconscionable injustice." Harris v. State, 527 So.2d 647, 649 (Miss. 1988)(quoting Groseclose v.

State, 440 So. 2d 297, 300 (Miss. 1993)).

¶30. The primary basis for the appellant's contention here rests on the alibi evidence provided by Nancy

Williams and Terry Melton. Additionally, the appellant cites the circumstantial nature of the physical

evidence. Finally, the appellant refers to Chester Glenn's uncertainty about the date the gun was returned. It

is clear that the jury is the only arbiter of the credibility of witnesses. Collier v. State, 711 So.2d 458, 462

(Miss. 1998). When asked to reverse on the ground of inconsistencies or contradictions in testimony, we

have held this is clearly in the jury's province and flatly refused. Id. "Jurors are permitted, indeed have the

duty, to resolve the conflicts in the testimony they hear. . . . It is enough that the conflicting evidence

presented a factual dispute for jury resolution." Groseclose v. State, 440 So.2d 297, 300 (Miss. 1983)

(quoting Gandy v. State, 373 So.2d 1042, 1045 (Miss. 1979)). Since the credibility of the testimony of

Chester Glenn, Nancy Williams, and Terry Melton was a decision for the jury, the Court will not reverse the

jury's verdict. Finally, the appellant claims the physical evidence is not strong enough to warrant the jury's

finding of guilt beyond a reasonable doubt. In reviewing the record in the light most favorable to the state, it

is clear there was an evidentiary basis for the guilty verdict. Therefore, the verdict was not against the
overwhelming weight of the evidence.

CONCLUSION

¶31. Melton presented no basis for error in the identification of his automobile. While the testimony of

Ronnie Pennington recounting Julie Carpenter's statements was hearsay, it is clear the jury would have

reached the same verdict without this testimony. No motion in limine was required for the testimony of

Debbie Glenn since she was able to testify to facts based on her own knowledge. Finally, the verdict of the

jury was not against the overwhelming weight of the evidence presented. There was no reversible error in

the trial court's proceedings and so we hereby affirm the jury's verdict.

¶32. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE

CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AFFIRMED.

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

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