SOUTHWICK, P.J., FOR THE COURT:

¶ 1. Robert Luckett was convicted of possession of cocaine while also in possession of a firearm. On appeal he alleges seven trial errors: (1) the verdict was against the overwhelming weight of the evidence; (2) his motion to suppress, (3) motion to dismiss, and (4) motion for a continuance should have been granted; (5) his oral confession should have been suppressed; (6) the sentence was excessive and illegal; and (7) the trial judge should have recused himself. We find no reversible error and affirm.

FACTS

¶ 2. On the morning of February 9, 1999, a confidential informant notified the narcotics division of the Canton Police Department that he had seen a large amount of crack cocaine at Robert Luckett's residence. Officer Tucker received the call. He had dealt with this informant on many prior occasions and had found his information reliable in the past. Tucker also had been conducting surveillance on Luckett's house for approximately two weeks before receiving the informant's tip. During that two week period, Tucker observed known drug dealers and addicts coming and going from Luckett's house and the yard about it. Based on the information provided by the informant, Tucker's prior knowledge of Luckett, and the surveillance that was conducted, a search warrant was issued for Luckett's residence.

¶ 3. Tucker, his supervisor and four other officers arrived at Luckett's house late in the evening on February 9, 1999. Once all of the officers were in their positions around the perimeter of the house, Officer Burse knocked on the front door and announced that it was the Canton Police Department and that they were there pursuant to a search warrant. After receiving no response from inside the residence, the officers forced their entry through the front door of the residence. Officer Burse testified that once inside the house that Luckett was observed moving into the living room from the bedroom of the house. Burse drew his weapon and instructed Luckett to have a seat on the couch in the living room. Burse noticed a .38 caliber weapon on the couch beside Luckett. He asked Luckett why he had the firearm. Luckett responded that he had previously been robbed.

¶ 4. Shortly thereafter the remainder of the officers entered the residence. Luckett was once again informed of the reason for their presence, and then thereafter the search continued. Luckett then informed the officers that he was diabetic and that he needed to take his insulin shot. Several officers escorted Luckett to the kitchen where he gave himself a shot but then passed out on the floor. The fall caused the cap which Luckett was wearing to fall off his head spilling several rocks of what appeared to be crack cocaine onto the floor.

¶ 5. While Luckett was being attended, the search through the rest of the residence continued. The officers discovered that there was a fire burning in the fireplace in Luckett's bedroom. The officers extinguished the fire and retrieved a small brown pill bottle from the fireplace. An analysis by the Mississippi Crime Laboratory later identified the substances found in the bottle as crack cocaine. Luckett was taken into custody and the handgun, the crack cocaine, the cap and a knife found at the scene were all taken as evidence. The sum of $177 was also seized from Luckett.

¶ 6. Luckett testified at his trial. He claimed that the cap, the pistol and the crack cocaine did not belong to him. As a diabetic, he was suffering from high blood sugar when the officers entered his residence and at trial could not remember any of the events of February 9, 1999 other than the initial knock at the door. He was convicted of possession of cocaine while also possessing a firearm.

DISCUSSION I. Weight and Sufficiency of the Evidence

¶ 7. Luckett argues that a directed verdict should have been granted in his favor. In the alternative, he seeks a new trial. We will consider each argument in turn.

¶ 8. Luckett moved for a directed verdict at the close of the State's case and submitted a directed verdict jury instruction at the end of the trial. Both the jury instruction and the directed verdict motion were denied by the trial court. "Requests for a directed verdict and motions for JNOV implicate the sufficiency of the evidence." Franklin v. State, 676 So.2d 287, 288 (Miss. 1996). Reviewing the denial of these requests requires that we consider all of the evidence in the light consistent with the verdict. All reasonable inferences supporting the verdict will be made. Only if "the facts and inferences so considered point in favor of the accused with sufficient force that reasonable men could not have found beyond a reasonable doubt that he was guilty" will we reverse on this basis. McFee v. State, 511 So.2d 130, 133-34 (Miss. 1987).

¶ 9. The State had to prove the elements provided by Miss. Code Ann. § 41-29-139(c) and § 41-29-152 (Supp. 2000). Those sections require (1) that the defendant knowingly or intentionally possessed a controlled substance, and (2) that the defendant was in possession of a firearm, either at the time the offense was committed or at the time the arrest was made.

¶ 10. Numerous law enforcement officers who were involved in the arrest testified that cocaine was recovered both from the cap that came off Luckett's head and from the fireplace in his bedroom. The analysis by the Mississippi Crime Laboratory revealed that the substances recovered were in fact cocaine. Officer Burse testified that the firearm was discovered on the couch beside Luckett shortly after the officers made their forced entry into the house. Burse also testified that when he asked Luckett why he had the gun that he replied that the reason he had the gun was because he had been robbed before. The State's evidence, when considered in light of the applicable standard, was not insufficient to allow a reasonable juror to consider the guilt of the defendant.

¶ 11. Without belaboring the point, we also find that the decided weight of the evidence favors the verdict. There was no defect in the State's case that would have justified the granting of a new trial.

II. Motion to Suppress

¶ 12. Luckett contends that the search warrant issued by the magistrate was invalid because probable cause was not shown prior to its issuance. Therefore, he contends that the seizure of the cocaine, the cap and the firearm should have suppressed. Luckett argues first that the "facts and circumstances" sheet was not sufficient to create probable cause for the magistrate to issue the search warrant. Next he alleges that the oral supplementation of the information sheet in order to mention the surveillance almost certainly did not occur. The officer explicitly stated that he informed the issuing judge of the surveillance. Luckett considers this testimony incredible because the officer also stated that the judge who issued the warrant believed that what was in the written statement was sufficient to show probable cause without the surveillance information.

¶ 13. What credit to give to a witness's statement, including what should be considered incredible, is for the fact-finder at trial. We find no basis to reject the testimony of the officer. Moreover, the supreme court has held that if the written statement supporting a search warrant request was not entered as an exhibit or made part of the official record for review, the legal issue of its sufficiency to prove probable cause is waived. Branch v. State, 347 So.2d 957, 958-59 (Miss. 1977); see also McKinney v. State, 724 So.2d 928, 932 (Miss. Ct. App. 1998). This statement is not in our record. We find no error in the denial of the motion to suppress.

III. Excessive fines and double jeopardy

¶ 14. On the date of Luckett's arrest for possession of cocaine while in possession of a firearm, the police seized $177 from him. Approximately two months later Luckett was arrested again and $409 was seized. Luckett argues that the forfeiture constituted an excessive fine and that the trial court should have granted his motion to dismiss based on double jeopardy. The trial judge held that the $409 was not to be considered in determining whether or not an excessive fine was imposed because it did not occur out of the same arrest as the seizure of the $177.

¶ 15. The Mississippi Supreme Court has examined the excessive fine issue in a similar factual context. One (1) Charter Arms v. State, 721 So.2d 620 (Miss. 1998). In order to determine if the forfeiture of a vehicle constituted an excessive fine the court adopted the following test:

(1) The nexus between the offense and the property and the extent of the property's role in the offense;

(2) The role and culpability of the owner;

(3) The possibility of separating the offending property from the remainder;

(4) Whether, after a review of all relevant facts, the forfeiture divests the owner of property which has a value that is grossly disproportionate to the culpability of the owner.

One (1) Charter Arms, 721 So.2d at 624-625.

¶ 16. Forfeiture is a statutory procedure. The relevant section provides: "(a) The following are subject to forfeiture: . . . (5) All money, deadly weapons, books, records, and research products and materials . . . which are used, or intended for use in violation of this article. . . ." Miss. Code Ann. § 41-29-153(a)(5) (Rev. 1993). The substances that fell from Luckett's hat and that were found burning in the fireplace were positively identified as crack cocaine. To find a close nexus between the $177 and the illegal activity is reasonable. Luckett's role and culpability in the crime, and the impossibility of separating any part of the $177 from the criminal activity are all well-proven.

¶ 17. Likewise it cannot be said that the forfeiture was grossly disproportionate to the offense charged. One measure would be the fine that could be imposed for the crime. The applicable statute permits up to a fifty thousand dollar fine. Miss. Code Ann. § 41-29-139 (c)(1)(B) (Supp. 2000).

¶ 18. Luckett also alleges that since the $177 was forfeited his conviction violated double jeopardy. The Mississippi Supreme Court has stated that forfeitures authorized by these statutes are civil in nature and do not prohibit a subsequent criminal prosecution for the underlying offense. State v. Flemming, 726 So.2d 113, 115 (Miss. 1998). An accused cannot succeed with a double jeopardy issue at one criminal trial unless that accused has already been subjected to a criminal trial arising from the same offense. Id. This was the first criminal proceeding on these events.

IV. Continuance

¶ 19. Luckett originally presented an issue regarding a denied continuance motion. His attorney has now conceded that the record does not support the allegation of error.

V. Defendant's Oral Confession

¶ 20. Luckett next asserts that his statement to Officer Burse concerning the handgun should have been suppressed by the trial court. There was testimony that when Officer Burse noticed the weapon beside Luckett on the couch, he asked him what he was doing with a weapon. Luckett replied "that he had been robbed before." Luckett claims that he is entitled to a new trial because this statement was a surprise confession made while in custody of the Canton Police and that he had not been advised of his relevant constitutional rights prior to the time that he made the statement.

¶ 21. In order to permit a suspect in custody to make a knowing and intelligent waiver of rights during interrogation, an explanation of those rights must first be given. Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). By definition, that rule is inapplicable if there either is not interrogation or not custody. Where the interrogation is part of the "general on the scene investigation," Miranda warnings are not a prerequisite to the admissibility of defendant's statements. Tolbert v. State, 511 So.2d 1368, 1375 (Miss. 1987).

¶ 22. The trial court found that Luckett's statement was not made while in custody, and therefore, there was no need for Miranda warnings. The officers were serving a search warrant and were still securing the scene at the time that the statement was made. The cocaine had not yet been found, and thus there was as yet no basis on which to arrest Luckett. At this stage, even if weapons were drawn and Luckett was told to stay on the sofa, that is insufficient to constitute custody for purposes of Miranda. Law enforcement officers may temporarily secure a scene while a brief investigation is underway. Under some definitions this could be called "custody," but it is not custody for purposes of Miranda v. Arizona. Porter v. State, 616 So.2d 899, 907-08 (Miss. 1993).

¶ 23. The concurring opinion's incredulity on this point focuses on a less than completely logical aspect of custodial interrogation law, but it is not for this Court to rewrite the precedents. Temporary interferences with freedom occur in a wide range of law enforcement situations, from a highway patrolman stopping a motor vehicle on the open road, to Terry v. Ohio stops on the sidewalks, to other encounters between police and private individuals. Every such stop does not require the giving of the warnings of constitutional rights applicable to self-incrimination. "Custodial interrogation" for purposes of the Fifth Amendment has required more than the kind of temporary interference with liberty that the preliminary stages of much police conduct entails.

¶ 24. There is a separate reason why the statement was properly admitted into evidence. The officer ordered Luckett to stay on the couch, and then noticed the gun lying next to him. Making some inquiry about the gun is a necessary, indeed inevitable reaction by the officer. Though the facts are distinguishable, we find the following instructive regarding the need for law enforcement officers to seek clarification about weapons:

We decline to place officers . . . in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them.

New York v. Quarles, 467 U.S. 649, 657-58 (1984); Wayne R. LaFave, Jerold H. Israel, Nancy J. King, Criminal Procedure § 6.7(B) (2d ed. 1999).

¶ 25. The concurring opinion takes the Court to task for merely noting that our facts are distinguishable from Quarles. It might also be said that the concurring opinion presents no case in which the facts are indistinguishable from our own. Both opinions in the present case are attempting to discern the best possible understanding of various precedents that are not factually identical to our own. The principle underling Quarles is expressed in the quotation just given of it. That principle applies here.

¶ 26. As part of the initial securing of the scene and upon first seeing a weapon next to someone for whom there is as yet no basis to arrest, an officer may ask a natural question that the discovery evokes. In these circumstances, "the question is whether an objective observer would infer the remarks were designed to elicit an incriminating response." Wayne R. LaFave, Jerold H. Israel, Nancy J. King, Criminal Procedure 546 § 6.7(B) (2d ed. 1999), interpreting the requirements of Rhode Island v. Innis, 446 U.S. 291, 301-302 (1980). We find nothing in the evidence to suggest that the officer who asked the question was seeking to have Luckett incriminate himself by asserting ownership to the gun.

¶ 27. That the officer thought to elicit an incriminating answer immediately upon seeing the weapon may presume too much cunning on his part; that an officer must carefully tailor his inquiries at that initial stage of discovery of a weapon assuredly presents too cumbersome a rule.

¶ 28. Officer Burse asked a natural question during his effort to secure the room. The answer incriminated Luckett. It was admissible.

VI. Validity of Sentence

¶ 29. Luckett next contends that the sixteen year sentence imposed upon him by the trial court was excessive. At the time of sentencing he was sixty years old, a diabetic, and had no prior felonies.

¶ 30. A trial judge's decision on sentencing will generally not be disturbed on appeal as long as the sentence is within the range allowed by statute. Davis v. State, 724 So.2d 342, 344 (Miss. 1998). "Sentencing is purely a matter of trial court discretion so long as the sentence imposed lies within the statutory limits." Taylor v. State, 741 So.2d 960, 962 (Miss. Ct. App. 1999).

¶ 31. The range of sentence for this crime was from two to eight years and a fine of fifty thousand dollars. Miss. Code Ann. § 41-29-139(c)(1)(B)(Rev. 1993). That sentence could be as much as doubled when a defendant was found to be in possession of a firearm. Miss. Code Ann. § 41-29-152(Rev. 1993). Thus Luckett received the statutory maximum for the crime. That was permissible.

¶ 32. Luckett also argues that the trial judge was confused about his options in sentencing Luckett to sixteen years. Luckett highlights a statement made by the judge during sentencing: "This court views that activity in a very dim light. I have no alternative but to sentence you in a very harsh manner. . . ." Luckett argues that the "no alternative" phrase proves that the court believed the doubled sentence was mandatory. The doubled sentence is in fact optional. Miss. Code Ann. § 41-29-152 (Rev. 1993). We disagree, however, that the trial judge's phrasing reveals confusion. At another point, the judge stated that the statute "allows a double penalty for possession of a firearm while in possession of cocaine, which puts the range of the case to sixteen years." The judge understood that sixteen years was the peak of the range and not required. The reasonable interpretation of the trial court's language is that Luckett's actions left him no alternative, not that the statute left him none.

¶ 33. Luckett also contends that the sentence was excessive under White v. State, 742 So.2d 1126 (Miss. 1999). There the supreme court reviewed a sentence of sixty years for the sale of a controlled substance within 1,500 feet of a church. The court found the sentence needed to be reviewed again by the trial judge as potentially excessive and cruel and unusual punishment for a first time offender. Id. at 1138. The court restated the general rule that a sentence which does not exceed the maximum penalty allowed by statute should not be disturbed on appeal, but added that if a sentence is classified as "grossly disproportionate" to the charge that it may be attacked as cruel and unusual under the Eighth Amendment. Id. at 1135. A proportionality analysis is applied when a comparison of the crime committed to the sentence given leads to an inference of "gross disproportionality." Id.; Stromas v. State, 618 So.2d 116, 123 (Miss. 1993).

¶ 34. We do not find the exceptional circumstances of White to be replicated here. Instead, the normal rule applies that a sentence within the statutory guidelines is valid. Stromas v. State, 618 So.2d 116, 123 (Miss. 1993). We find that the trial court considered its discretion before sentencing Luckett and determined that the maximum sentence was necessary. We find no error.

VII. Trial Judge's Refusal to Recuse

¶ 35. The trial judge, John Kitchens, was serving as district attorney when Luckett was earlier indicted for a separate offense in Madison County. Luckett contends that because of Judge Kitchen's previous involvement, that he lacked impartiality and should not have been the judge to issue the search warrant. There is no separate argument made that Kitchens should have recused himself from presiding over Luckett's trial.

¶ 36. The analysis begins with Canon 3C(1) of the Code of Judicial Conduct. It requires disqualification of a judge under the following conditions:

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; [or]

(b) he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it. . . .

¶ 37. An objective test is used to determine if a judge should have recused himself. "If a reasonable person, knowing all of the circumstances, would doubt the judge's impartiality, the judge is required to recuse him or herself from the case." Rutledge v. Pridgen, 493 So.2d 952, 954 (Miss. 1986). The supreme court has held that a judge should recuse himself from hearing a case based on an indictment issued when he was the prosecutor. Jenkins v. State, 570 So.2d 1191, 1192-93 (Miss. 1990); Banana v. State, 638 So.2d 1329, 1330-31 (Miss. 1994). We find no justification for a similar per se disqualification rule whenever a search warrant is being considered because the judge was the district attorney for a totally unrelated indictment. The evidence is that Judge Kitchens relied solely on the report and statements of the police officers in his decision to issue the search warrant. Judge Richardson, who presided over the motion to dismiss hearing, stated that "any magistrate would have issued the warrant based on the probable cause that I heard."

¶ 38. Luckett failed to overcome the presumption that the trial judge was unbiased.

¶ 39. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF POSSESSION OF COCAINE WHILE ALSO IN POSSESSION OF A FIREARM AND SENTENCE OF SIXTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS ARE AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

McMILLIN, C.J., THOMAS, AND MYERS, JJ., CONCUR; KING, P.J., IRVING AND CHANDLER, JJ., CONCUR IN RESULT ONLY.

LEE, J., CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY PAYNE, BRIDGES, AND CHANDLER, JJ.