WALLER, JUSTICE, FOR THE COURT:

INTRODUCTION

¶ 1. Appellant Christopher Smith was indicted for the murder of Joshua Jones, his cousin. At trial, during closing argument by Smith's attorney, the bailiff prematurely called time before counsel could make his argument for the lesser offense of manslaughter. There was no contemporaneous objection to this error. Smith was convicted of murder and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. Finding no prejudice, this Court affirms the conviction and sentence.

STATEMENT OF THE FACTS

¶ 2. Jones was visiting Smith and staying at Smith's home. After a long evening of drinking and partying at a bar, Jones, Smith and several others returned to Smith's home to continue the party. Jones was highly intoxicated and became upset with Smith. After a brief scuffle, Smith asked Jones to leave. Jones then struck Smith. After Smith went outside and retrieved a pistol from his car, he again told Jones to leave. As Jones approached Smith, Smith fatally shot Jones in the heart.

¶ 3. Smith testified that he was afraid of Jones due to the earlier struggle and that he had acted in self defense and in defense of his home. The jury was instructed on murder, heat of passion manslaughter, imperfect self defense, and using excessive force to evict a trespasser-manslaughter. Based on the evidence which consisted of eyewitness testimony and expert analysis, the jury returned a verdict finding Smith guilty of murder.

DISCUSSION

¶ 4. Smith raises one assignment of error on appeal:

DID THE TRIAL COURT ERR IN REFUSING TO GRANT A NEW TRIAL DUE TO THE CLOSING ARGUMENT OF THE DEFENSE BEING PREMATURELY ENDED BY THE BAILIFF'S MISTAKE IN KEEPING TIME?

¶ 5. Smith's attorney, Thomas L. Kesler, requested and was given forty minutes to make his closing argument. As was the usual custom, both the State and Kesler requested the bailiff to keep time for them. The bailiff called time when Kesler had argued for only thirty minutes. Kesler had time to attempt to persuade the jury to acquit Smith of murder, but time was called before he could argue the lesser included offense of manslaughter. Smith first raised this issue in a motion for a new trial. It is undisputed that the call by the bailiff was an honest mistake and not done with malice nor ill will towards Smith or his attorney.

¶ 6. During a hearing on the motion, Kesler testified to the events that led to this appeal: At about the same time the bailiff called time, the prosecutor made an objection to a line of argument by Kesler. After the judge overruled the objection, Kesler, thinking his time had expired, made a brief closing sentence and took his seat. A few moments later and while the State was making its rebuttal argument, Kesler noticed he had been shorted ten minutes. At this point, Kesler realized he had been unable to argue manslaughter to the jury. However, he remained silent. When questioned about his failure to raise a timely objection, Kesler stated, "I guess I pretty well covered what we needed to cover . . . and at that point in time . . . I felt in my opinion that we were in reasonably good shape on defense of murder — the murder charge." Only when the jury returned a verdict of guilty of murder did Kesler feel the time shortage was of any significance. "[T]he . . . problem is that, and again, . . . this is to some degree invoking twenty/twenty hindsight, . . . I never argued any of the manslaughter theories to the jury, and, . . . under the circumstances [I] feel like that was a . . . serious situation." Finding no prejudice, the trial court denied the motion.

¶ 7. Raising objections in a motion for new trial which should have been made at trial has never been thought to cure the failure to object at the proper time. Barnett v. State , 725 So.2d 797, 801 (Miss. 1998). It is axiomatic that a litigant is required to make a timely objection. Id. We have repeatedly held that if no contemporaneous objection is made, the error, if any, is waived. Walker v. State , 671 So.2d 581, 597 (Miss. 1995) (citing Foster v. State , 639 So.2d 1263, 1270 (Miss. 1994)). This rule's applicability is not diminished, even in a capital case. Id.

¶ 8. Although the exact issue before us has yet to be decided, we have preserved the right of a defendant for adequate summation. However, in the absence of a timely objection, prejudice must be demonstrated. We have stated, "In a criminal trial before the accused can complain of limiting the time for argument, it must appear from the record that he was prejudiced by the court's ruling . . . ." Matthews v. State , 243 Miss. 568, 574, 139 So.2d 386, 389 (1962). Nevertheless, we have held that a trial judge should be meticulously careful in insuring that the defendant is afforded sufficient time for his summation. Turner v. State, 220 So.2d 295, 298 (Miss. 1969).

¶ 9. Despite this pronouncement, the elementary rule of law remains, "that for preservation of error for review, there must be contemporaneous objections." Smith v. State, 530 So.2d 155, 161-62 (Miss. 1988) (collecting authorities). Even a very short time limit does not constitute reversible error unless the defendant shows prejudice. Conner v. State , 632 So.2d 1239, 1276 (Miss. 1994), overruled on other grounds by Weatherspoon v. State , 732 So.2d 158 (Miss. 1999).

¶ 10. Thus, in order for Smith to be granted a new trial, he must demonstrate prejudice. His only showing of prejudice is that his attorney was shorted ten minutes in his closing argument and was unable to argue a manslaughter defense. Although Smith's attorney never argued manslaughter to the jury, the manslaughter instructions requested by Smith were granted. A review of the record indicates four instructions were given which addressed the theory of manslaughter. As stated by Kesler, "Those instructions probably covered every theory of manslaughter in this state. . . ." It should be further noted that during its three hours of deliberation, the jury did not request any further information or clarification regarding the manslaughter instructions.

¶ 11. Absent a showing of prejudice, Smith's failure to make a timely objection results in a procedural bar. Kesler realized the error in sufficient time to raise a timely objection, but he chose not to act, feeling Smith's defense was solid. It is worth noting that in Conner, the Court stated, "We would be justified in concluding that Conner, far removed from the scene of trial and given the benefit of twenty-twenty hindsight, has decided that he would argue more loquaciously if he had a chance to do it again." 632 So.2d at 1276. After conviction, what defendant would not argue that a different strategy might have produced a better result?

CONCLUSION

¶ 12. Because Smith failed to demonstrate prejudice resulting from the inadvertent and premature termination of his closing argument, and because his sole issue on appeal is procedurally barred for failure to make a contemporaneous objection, the judgment of the Circuit Court of Lowndes County is affirmed.

¶ 13. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AFFIRMED. PITTMAN, C.J., SMITH, COBB AND DIAZ, JJ., CONCUR. BANKS, P.J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, J. MILLS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McRAE, P.J. EASLEY, J., NOT PARTICIPATING.