source: Caselaw Access Project

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text:
    MISSISSIPPI TRANSPORTATION COMMISSION v. Dennis McLEMORE and Tammy McLemore.
    No. 2001-CA-01039-SCT.
    Supreme Court of Mississippi.
    Oct. 16, 2003.
    Rehearing Denied Jan. 22, 2004.

      Richard G. Noble, Hollaman Martin Ra-ney, Office of the Attorney General by Billy Don Hall, attorneys for appellant.
    Taylor D. Buntin, Southaven, attorney for appellees.
   SMITH, Presiding Justice,

for the Court.

¶ 1. This eminent domain case arises from the Special Court of Eminent Domain of DeSoto County, where a jury awarded Dennis and Tammy McLemore total compensation and damages in the amount of $1,370,000. Because the testimony of Rip Walker, the McLemores’ expert appraisal witness, fails to satisfy the Frye standard or the modified Daubert standard for the admissibility of expert witness testimony, the trial court erred in denying MTC’s motion in limine and in admitting Walker’s testimony. The judgment of the trial court is therefore reversed, and this case is remanded for a new trial, consistent with this opinion.

FACTS

¶ 2. The McLemores owned 1,980 acres of land in DeSoto County, Mississippi. Responding to increased growth in DeSoto County and development in Tunica County, the Mississippi Transportation Commission (“MTC”) planned to construct an interstate highway between U.S. Interstate 55 at Hernando and U.S. Highway 61 at Robinsonville. The proposed interstate crosses the McLemores’ DeSoto County property. Because it was unable to obtain the required 174-acre portion of the McLemores’ DeSoto County property (“McLemore property”) through negotiations, the MTC instituted this eminent domain action.

¶ 3. Seeking to condemn the McLemore property for use in the proposed project, the MTC on November 30, 1999, filed a complaint for the organization of a Special Court of Eminent Domain in DeSoto County. After a trial, the jury returned a verdict in favor of the McLemores, and the trial court entered judgment on the verdict. The MTC subsequently filed a motion for judgment notwithstanding the verdict, remittitur, or a new trial, which the trial court denied. The MTC raises the following issues in this appeal:

I.WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO APPLY THE FRYE STANDARD TO EXCLUDE THE UNRELIABLE TESTIMONY OF RIP WALKER, THE McLEMORES’ EXPERT APPRAISAL WITNESS, WHEN THE COURT DENIED MTC’S MOTION IN LIMINE AND DENIED MTC’S MOTION FOR NEW TRIAL AND/OR REMITTI-TUR.
II. WHETHER THE JURY VERDICT WAS THE RESULT OF THE TRIAL COURT’S ERROR IN ADMITTING SPECULATIVE AND TOTALLY UNRELIABLE DAMAGE TESTIMONY BY THE McLEMORES’ APPRAISAL WITNESS.
III. WHETHER THIS COURT WILL ABANDON THE FRYE STANDARD AND ENDORSE AND ADOPT THE DAJJ-BERTIKUMHO STANDARDS SO THAT A TRIAL JUDGE CAN ENSURE THAT ALL EXPERT TESTIMONY AND EVIDENCE IS NOT ONLY RELEVANT, BUT RELIABLE.

STANDARD OF REVIEW

¶ 4. Our well-settled standard of review for the admission or suppression of evidence is abuse of discretion. Haggerty v. Foster, 838 So.2d 948, 958 (Miss.2002). Moreover, a motion in limine should be granted only if “(1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury.” Whittley v. City of Meridian, 530 So.2d 1341, 1344 (Miss.1988). Furthermore, the admission of expert testimony is within the sound discretion of the trial judge. Puckett v. State, 737 So.2d 322, 342 (Miss.1999). Therefore, the decision of a trial judge will stand “unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.” Id.

DISCUSSION

¶5. The MTC argues that we should abandon the general acceptance test set forth in Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), for determining the admissibility of expert witness testimony in favor of the rule stated in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), as modified in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). We agree. Walker’s testimony failed to satisfy either the Frye standard or the modified Daubert standard; therefore, his testimony should have been excluded.

I. ADOPTION OF THE DAU-BERTIKUMHO TIRE RULE AS THE STANDARD FOR ADMISSIBILITY OF EXPERT WITNESS TESTIMONY

¶ 6. The analysis for admission of expert testimony is enumerated in the Mississippi Rules of Evidence, Rule 702, as amended on May 29, 2003. The amended rule states that:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (S) the witness has applied the principles and methods reliably to the facts of the case.

M.R.E. 702 (emphasis added). Rule 702, as amended, is identical to Rule 702 of the Federal Rules of Evidence.

¶ 7. Under Rule 702, expert testimony should be admitted only if it withstands a two-pronged inquiry. Kansas City S. Ry. v. Johnson, 798 So.2d 374, 382 (Miss.2001). First, the witness must be qualified by virtue of his or her knowledge, skill, experience or education. Id. (citing M.R.E. 702). Second, the witness’s scientific, technical or other specialized knowledge must assist the trier of fact in understanding or deciding a fact in issue. Id. In addition, Rule 702 “does not relax the traditional standards for determining that the witness is indeed qualified to speak an opinion on a matter within a purported field of knowledge.” M.R.E. 702 emt.

¶ 8. Prior to its amendment earlier this year, the comment to M.R.E. 702 quoted the well-known Frye test, noting that Rule 702 did not “relax the requirement that the scientific principle from which the expert’s opinion is derived ‘must be sufficiently established to have gained general acceptance in the particular field to which it belongs.’ ” M.R.E. 702 cmt. (repealed 2003) (quoting Frye, 293 F. at 1014). Our previous cases recognize this Court’s long adherence to the Frye rule despite the adoption of M.R.E. 702 and major changes in federal evidence law. See, e.g., Kansas City, 798 So.2d at 382 (citing Gleeton v. State, 716 So.2d 1083, 1087 (Miss.1998)). In deciding whether the field has gained “general acceptance,” we have previously asked:

Is the field of expertise one in which it has been scientifically established that due investigation and study in conformity with techniques and practices generally accepted within the field will produce a valid opinion? Where the answer to this question is in the affirmative, we generally will allow expert testimony.

House v. State, 445 So.2d 815, 822 (Miss.1984). Further, we have stated that “[t]he facts upon which the expert bases his opinion or conclusion must permit reasonably accurate conclusions as distinguished from mere guess or conjecture.” Hickox v. Holleman, 502 So.2d 626, 638 (Miss.1987) (quoting Kruszewski v. Holz, 265 Md. 434, 290 A.2d 534, 540 (1972)). However, we have made clear that under the Frye standard, “it is not necessary that one offering to testify as an expert be infallible or possess the highest degree of skill; it is sufficient if that person possesses peculiar knowledge or information regarding the relevant subject matter which is not likely to be possessed by a layman.” Kansas City, 798 So.2d at 382 (quoting Hooten v. State 492 So.2d 948 (Miss.1986)).

¶ 9. In 1993, the United States Supreme Court declared that the Federal Rules of Evidence supersede the Frye general acceptance test. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 587, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Despite this major change in federal evidence law, Mississippi has continued to apply Frye. See Kansas City, 798 So.2d at 382.

¶ 10. In Daubert, the Court concluded that the “general acceptance” test is inconsistent with other evidentiary provisions that strive to prevent the admission of unreliable or irrelevant scientific testimony. Daubert, 509 U.S. at 589, 113 S.Ct. 2786. The rigidity of the “general acceptance” test also conflicts with the liberal goals of the Federal Rules which include reducing the traditional barriers to opinion testimony. Id. at 588-89, 113 S.Ct. 2786 (quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169, 109 S.Ct. 439, 450, 102 L.Ed.2d 445 (1988)).

¶ 11. However, the Court determined that a federal trial court retains authority to review scientific evidence to detei-mine admissibility. Id. at 589, 113 S.Ct. 2786. The trial court is vested with a “gatekeeping responsibility.” Id. The trial court must make a “preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning and methodology properly can be applied to the facts in issue.” Id. at 592-93, 113 S.Ct. 2786. Preliminary questions of witness qualifications, privileges and admissibility of evidence are resolved pursuant to Rule 104(a) and 104(b). Id. at 592, 113 S.Ct. 2786. The trial judge determines whether the testimony rests on a reliable foundation and is relevant in a particular case. Id. at 589, 113 S.Ct. 2786. There must be a “valid scientific connection to the pertinent inquiry as a precondition to admissibility.” Id. at 592, 113 S.Ct. 2786. The party offering the expert’s testimony must show that the expert has based his testimony on the methods and procedures of science, not merely his subjective beliefs or unsupported speculation. Id. at 590,113 S.Ct. 2786.

¶ 12. Moreover, the Court in Daubert determined that abandoning the general acceptance test does not result in jury confusion from “absurd and irrational pseudoscientific assertions,” since “[vjigorous cross examination, presentations of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Id. at 595-96, 113 S.Ct. 2786 (citing Rock v. Arkansas, 483 U.S. 44, 62, 107 S.Ct. 2704, 2714, 97 L.Ed.2d 37 (1987)). If evidence is deemed insufficient for a reasonable juror to conclude that the position is more likely than not true, the trial court can direct a judgment or grant summary judgment. Id. at 596, 113 S.Ct. 2786 (citing Fed.R.Civ.P. 50(a), 56). These well-established, traditional devices provide better safeguards than full exclusion of testimony which meets the standards of Rule 702. Id.

¶ 13. The Court in Daubert adopted a non-exhaustive, illustrative list of reliability factors for determining the admissibility of expert witness testimony. Id. at 592-94, 113 S.Ct. 2786. The focus of this analysis “must be solely on principles and methodology, not on the conclusions they generate.” Id. at 595, 113 S.Ct. 2786. These factors include whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether, in respect to a particular technique, there is a high known or potential rate of error; whether there are standards controlling the technique’s operation; and whether the theory or technique enjoys general acceptance within a relevant scientific community. Id. at 592-94, 113 S.Ct. 2786. The applicability of these factors depends on the nature of the issue, the expert’s particular expertise, and the subject of the testimony. Kumho Tire, 526 U.S. at 151, 119 S.Ct. 1167. The Daubert Court emphasized that the reliability inquiry contemplated by Rule 702 “is a flexible one.” Daubert, 509 U.S. at 594, 113 S.Ct. 2786. In Kumho Tire, the Court illustrated such flexibility in that:

It might not be surprising that in a particular case, for example, that a claim made by a scientific witness has never been the subject of peer review, for the particular application at issue may not have ever interested any scientist. Nor, on the other and, does the presence of Daubert’s general acceptance factor help show that an expert’s testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology or necromancy.

Kumho Tire, 526 U.S. at 151, 119 S.Ct. 1167. Therefore, the Court determined that it could “neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert” because “[t]oo much depends upon the particular circumstances of the particular case at issue.” Id. at 150, 119 S.Ct. 1167. Thus, the trial court has “considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” Id. at 152, 119 S.Ct. 1167. That is, the Daubert factors should be considered “where they are reasonable measures of the reliability of expert testimony.” Id. Furthermore, neither Daubert nor the Federal Rules of Evidence requires that a court “admit opinion evidence that is connected to existing data only by the ipse dixit of the expert,” as self-proclaimed accuracy by an expert an insufficient measure of reliability. Id. at 157, 119 S.Ct. 1167 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)).

¶ 14. The Court’s holding in Daubert was specifically limited to scientific expert testimony since the testimony at issue in that case was “scientific” in nature. Kumho Tire, 526 U.S. at 147, 119 S.Ct. 1167. However, the Court in Kumho Tire concluded that a trial court’s basic “gatek-eeping responsibility” applies to the admissibility of expert testimony based on “technical” and “other specialized” knowledge. Id. Analyzing the language of Rule 702, the Court concluded that the word “knowledge” and not the words that modify it “establishes a standard of evidentiary reliability.” Id. at 148, 119 S.Ct. 1167 (quoting Daubert, 509 U.S. at 589-90, 113 S.Ct. 2786).

¶ 15. In addition, the Court in Kumho Tire noted that the evidentiary rationale that supports trial courts’ gatekeeping responsibilities is not limited to scientific knowledge. Id. When stating opinions, an expert is given greater latitude than a lay witness under the assumption that an expert’s opinion is reliably based on knowledge and experience particular to a chosen discipline. Id. However, whether testimony is based on professional studies or personal experience, the “gatekeeper” must be certain that the expert exercises the same level of “intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. at 152, 119 S.Ct. 1167.

¶ 16. Thus, to summarize, the analytical framework provided by the modified Daubert standard requires the trial court to perform a two-pronged inquiry in determining whether expert testimony is admissible under Rule 702. Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir.2002). The modified Daubert rule is not limited to scientific expert testimony— rather, the rule applies equally to all types of expert testimony. Kumho Tire, 526 U.S. at 147, 119 S.Ct. 1167. First, the court must determine that the expert testimony is relevant — that is, the requirement that the testimony must “ ‘assist the trier of fact’ means the evidence must be relevant.” Mathis v. Exxon Corp., 302 F.3d 448, 460 (5th Cir.2002) (citing Fed.R.Evid. 702). Next, the trial court must determine whether the proffered testimony is reliable. Pipitone, 288 F.3d at 244. Depending on the circumstances of the particular case, many factors may be relevant in determining reliability, and the Daubert analysis is a flexible one. Id. Daubert provides “an illustrative, but not an exhaustive, list of factors” that trial courts may use in assessing the reliability of expert testimony. Id.

¶ 17. In applying the modified Daubert rule, Mississippi’s federal courts have recognized that the gatekeeping role of federal trial courts is taken seriously. Hammond v. Coleman Co., 61 F.Supp.2d 533, 537 (S.D.Miss.1999), aff'd mem. 209 F.3d 718 (5th Cir.2000). Moreover, there is universal agreement that the Daubert test has effectively tightened, not loosened, the allowance of expert testimony. 61 F.Supp.2d at 537.

¶ 18. Daubert/Kumho Tire analysis has been used to exclude a medical doctor’s testimony on the cause of fybromyalgia. Black v. Food Lion, Inc., 171 F.3d 308 (5th Cir.1999). Because of the many types of experts and expertise, the application of Daubert is fact specific and appropriately uses relevant factors to determine reliability. Id. at 311.

¶ 19. After eliminating other possible causes, the expert in Black concluded that a fall at Food Lion was the cause of the patient’s fibromyalgia. Id. at 314. This conclusion was based on an improper exercise in scientific logic and the unacceptable fallacy of post-hoc propter-hoc reasoning. Id. A scientifically reliable conclusion on causation was not possible since the doctor did not know the exact process or factors triggering the disease. Id. A conclusion for which there was no underlying medical support was not vindicated by the use of general methodology in the medical field. Id. A “standard of meaningless high generality rather than boring in on the precise state of scientific knowledge in this case” could not render a proper determination. Id.

¶ 20. The Fifth Circuit has applied Daubert to expert testimony in an eminent domain proceeding. United States v. 1L88 Acres of Land, More or Less Situated in Leflore County, State of Mississippi, 80 F.3d 1074 (5th Cir.1996). The district court refused to admit expert testimony of Rip Walker and Rogers Varner regarding severance damages resulting from an exercise of eminent domain. The opinions were deemed “speculative and not based on reliable foundations” providing “no aid to the finder of fact in determining just compensation in this case.” Id. at 1076 (citing 884 F.Supp. 224, 227 (N.D.Miss. 1995)). The experts expressed uncertainty about the extent of flooding on the property in the event of heavy rainfall resulting in the district court’s decision that the burden to demonstrate a diminution in the value of the landowner’s property was not met. Id. at 1077. This application of the reliability test was overly stringent. Id.

¶ 21. The trial court’s role as gatekeeper is not intended as a replacement for the adversary system. Id. The admission of expert assessment of value must be cautiously determined because of the expert’s critical role in the evaluation of the strong interests of both property owners and governments in just compensation. Id. at 1077. Absent other grounds to exclude, an expert’s testimony is presumptively admissible when relevant and reliable. Id. Not entirely speculative, nor unreliable, the experts’ testimony was not inadmissible because of their inability to predict the extent of flooding. Id. at 1079.

¶ 22. This Court has consistently refused to apply the reasoning of Daubert and its progeny in evaluating the admissibility of expert witness testimony under the previous version of M.R.E. 702. Kansas City, 798 So.2d at 382 (citing Gleeton v. State, 716 So.2d 1083, 1087 (Miss.1998); Crawford v. State, 716 So.2d 1028, 1046 (Miss.1998); Polk v. State, 612 So.2d 381, 390 (Miss.1992)). While we concluded in Humphrey v. State, 759 So.2d 368, 384 (Miss.2000), that the Frye standard of general acceptance is “time proven,” M.R.E. 702 was amended earlier this year, and the comment to the current rule states:

[T]he Supreme Court clearly recognizes the gate keeping responsibility of the trial court to determine whether the expert testimony is relevant and rehable. This follows the 2000 adoption of a like amendment to Fed.R.Evid., 702 adopted in response to Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). It is important to note ... that the factors mentioned in Daubert do not constitute an exclusive list of those to be considered in making the determination: Dau-bert’s “list of factors was meant to be helpful, not definitive.” Kumho, 526 U.S. at 151,119 S.Ct. 1167.

M.R.E. 702 cmt. Notably, the comment makes no mention of Frye or the general acceptance test. Thus, the current version of Rule 702 recognizes that the Daubert rule, as modified, provides a superior analytical framework for evaluating the admissibility of expert witness testimony.

¶ 23. Considering this Court’s recent May 29, 2003, adoption of revised Rule 702 with the additional language found in the federal rule, this Court today adopts the federal standards and applies our amended Rule 702 for assessing the reliability and admissibility of expert testimony. This standard recognizes the distinction between lay and expert witnesses. Like the Federal Rules, our rules grant wide latitude for experts to give opinions even when the opinions are not based on the expert’s firsthand knowledge or observations. With a focus on relevance and reliability, this approach is superior to the “general acceptance” test in Frye, because the Frye test can result in the exclusion of relevant evidence or the admission of unreliable evidence.

¶24. The gatekeeping function of the trial court is consistent with the underlying goals of relevancy and reliability in the Rules. Daubert ensures that the relevancy requirements of the rules are properly considered in an admissibility decision. Rule 702 gives the judge “discretionary authority, reviewable for abuse, to determine reliability in light of the particular facts and circumstances of the particular case.” Kumho Tire, 526 U.S. at 158, 119 S.Ct. 1167.

¶ 25. We are confident that our learned trial judges can and will properly assume the role as gatekeeper on questions of admissibility of expert testimony. The modified Daubert test does not require trial judges to become scientists or experts. Every expert discipline has a body of knowledge and research to aid the court in establishing criteria which indicate reliability. The trial court can identify the specific indicia of reliability of evidence in a particular technical or scientific field. Every substantive decision requires immersion in the subject matter of the case. The modified Daubert test will not change the role of the trial judge nor will it alter the ever existing demand that the judge understand the subjects, of the case, both in terms of claims and defenses. We are certain that the trial judges possess the capacity to undertake this review.

II. ADMISSIBILITY OF RIP WALKER’S APPRAISAL TESTIMONY

¶ 26. The central issue of this appeal concerns a component of Walker’s appraisal, referred to at trial as the 750-foot line of damage method (“750-foot line method”). Because it completely fails to satisfy the modified Daubert rule, we conclude that Walker’s testimony was inadmissible. In addition, we also find that Walker’s testimony fails to satisfy the requirements of the abandoned Frye rule.

A. APPLICATION OF THE MODIFIED DAUBERT STANDARD

¶ 27. First, the Mississippi Rules of Evidence define relevant evidence1 as that which has “any tendency to make 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.” M.R.E. 401. If the proffered evidence has any probative value at all, Rule 401 favors its admission. Holladay v. Holladay 776 So.2d 662, 676 (Miss.2000). That is, “the threshold for admissibility of relevant evidence is not great. Evidence is relevant if it has any tendency to prove a consequential fact.” Whitten v. Cox, 799 So.2d 1, 15 (Miss.2000). Walker’s testimony regarding damages and the methods he used in determining damages was clearly relevant in this eminent domain action. Therefore, Walker’s testimony satisfies the first prong of the modified Daubert standard.

¶ 28. Second, in our following reliability analysis we do not intend to set forth a generic checklist of factors that our state courts shall use in every instance where parties present expert witness testimony. Rather, we choose to follow the lead of the federal courts, using the illustrative Daubert factors for guidance and leaving the determination of which reliability factors are, applicable in particular cases to the sound discretion of our learned trial judges. As our cases instruct, we review a trial judge’s decision to admit expert witness testimony for abuse of discretion. See Puckett v. State, 737 So.2d at 342. Because the application of the modified Daubert rule is fact-specific, a review of Walker’s trial testimony is necessary for our analysis. Walker used the 750-foot line method to determine the “after value” of a portion of the McLemores’ property. Walker reasoned that the McLemore property abutting the proposed interstate right-of-way would be most affected by the proposed construction. Thus, Walker concluded that “there is a certain amount of [the McLemore] land ... that would be less desirable and consequently have less value that it did before.” Based on this reasoning, Walker projected an imaginary area, “kind of a buffer between the interstate right-of-way and where the new construction would be, ... that would be less desirable” after construction of the interstate.

¶ 29. In determining the boundary of the so-called buffer zone, Walker concluded that there is a certain distance from the right-of-way at which the proposed construction no longer has an adverse effect on the property’s desirability. According to Walker, this point is at “a distance of ... between five hundred and a thousand feet” from the proposed interstate right-of-way. Arbitrarily splitting the difference, Walker concluded that the McLemore property within 750 feet of the proposed interstate would be more adversely affected than the rest of the property. According to his subsequent calculations, Walker determined that the buffer zone area consisted of 317 acres. Consequently, under Walker’s theory, these 317 acres suffered more damage than the rest of the McLe-more property.

¶ 30. Prior to trial, the MTC submitted a motion in limine requesting that the trial court exclude Walker’s anticipated testimony regarding the 750-foot line method. The trial judge denied the MTC’s motion, reasoning that “[w]e are in ... a new era of eminent domain ... and ... if there are experts who testify with some basis their opinions are to be weighed by the jury as is the credibility of their testimony.” During the course of the trial, the MTC repeatedly objected to Walker’s testimony regarding his 750-foot line method.

¶ 31. After describing to the jury his 750-foot line method and the results obtained from his calculations, Walker gave the following curious testimony regarding his appraisal method:

Q: Mr. Walker, is the method that you have performed this appraisal, is it according to generally accepted appraisals standards and you understand them?
A: Well, I think, I think that we have got some issues here with what those standards are. And my opinion is that we have got a situation that is fairly rare and new, especial- ’ ly — just eminent domain itself is new. But this is what I consider breaking new ground in that there is a situation here where I think there is no question that the after value is affected by this highway. And in determining how much you want to try to use accepted standards and methodology that has been in the past, but when this is maybe the first time that something like this has happened or at least the first time it has happened this particular way, there is problem with using methods that have been used in the past, because they just not there.

¶ 32. In addition, Walker testified to the following facts on cross-examination: (1) the method he employed in his appraisal is, to his knowledge, not printed in any textbook; (2) the method is not taught in seminars; (3) the 750-foot line method is unique to the McLemore appraisal; (4) the 750-foot line method is not “a principle of any kind”; and (5) the 750-foot line method was not taught in any of the courses Walker completed to obtain his appraiser’s licenses in Mississippi, Tennessee, and Arkansas.

¶ 33. Unlike his expert testimony in United States v. U.38 Acres of Land, Walker’s testimony in this case is entirely speculative. None of the illustrative factors appr0ved by the United States Supreme Court in Daubert and Kumho Tire weigh in favor of allowing Walker’s testimony here. Therefore, it is clear that Walker’s testimony was inadmissible and should have been excluded.

¶ 34. First, it is apparent that Walker’s 750-foot line method has not been tested in the appraisal field since Walker himself testified that his appraisal method was unique to the McLemore appraisal. Moreover, it is clear that Walker’s theory cannot be tested. Under the theory, there is some portion of the McLemore property that will be more adversely affected by the construction than the rest of the property. This portion abuts the proposed interstate and extends a distance of between 500 and 1000 feet onto the McLemore property. Walker concluded that this most affected portion of the property terminates at a distance of 750 feet from the interstate right-of-way. This theory cannot be tested since the location of the imaginary boundary line is not based on any principle. Walker merely split the difference between 500 and 1000 feet. In other words, Walker could have chosen to locate the line at 813 feet or 698 feet instead of 750 feet. This theory is clearly not capable of being tested since Walker simply chose the 750-foot offset at random.

¶ 35. Second, there is no evidence that Walker’s theory has been the subject of any peer review. It is also evident from the record that the theory has not been the subject of any publication. Walker himself testified that the theory is not printed in textbooks or taught in courses and seminars.

¶ 36. Third, there is a high potential rate of error associated with Walker’s theory. Again, the key to Walker’s theory is the placement of the imaginary buffer zone boundary line. There is no evidence that the location of this line is based on anything more than Walker’s speculation. Thus, there is a very real and high potential for error associated with the 750-foot line method.

¶37. Fourth, there is no evidence of standards that control the operation of Walker’s 750-foot line method. As discussed, supra, Walker arbitrarily chose to use 750 feet as the offset instead of another random distance. In essence, Walker’s speculation alone determines the location of the buffer zone boundary line; therefore, it is clear that there are, in fact, no standards that control this method.

¶ 38. Finally, Walker himself testified the method was unique to the McLemore appraisal. If this method is peculiar to a single appraisal, that the appraisal community has not adopted this method. Therefore, it is clear that this theory is not generally accepted in the appraisal field.

¶ 39. Walker’s testimony was inadmissible under the modified Daubert standard since it wholly fails to comport with the non-exhaustive, illustrative list of factors set out in Daubert and Kumho Tire. The trial court therefore clearly erred in admitting Walker’s testimony. Because we reverse and remand this case for a new trial, we need not consider MTC’s second assignment of error.

B. APPLICATION OF THE ABANDONED FRYE STANDARD.

¶ 40. Although we expressly reject the Frye standard today, it should be noted that Walker’s testimony was inadmissible even under the abandoned Frye rule. As we interpreted it, Frye stood for the proposition that expert testimony would be allowed only if it was based on a principle that was generally accepted in the particular field in question. Obviously, a theory or method is not generally accepted when it is unique to a particular situation, not taught or discussed in courses or textbooks, “breaks new ground,” and is not used by other practitioners in that particular field. It is clear that Walker’s testimony was inadmissible even under the abandoned Frye test. Therefore, even under the rule we abandon today, Walker’s testimony should have been excluded.

CONCLUSION

¶41. We conclude that Rip Walker’s expert testimony regarding the “750-foot line method” was entirely speculative, failing to satisfy either the “Frye test” or our newly adopted “modified Daubert test,” as set out in this Court’s May 29, 2003, amendment to Rule 702, thus such testimony was inadmissible. Accordingly, we reverse the trial court’s judgment and remand this case to the trial court for a new trial consistent with this opinion.

¶ 42. REVERSED AND REMANDED.

PITTMAN, C.J., WALLER AND COBB, JJ., CONCUR. McRAE, P.J., EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND CARLSON, JJ., NOT PARTICIPATING.

      . This is the same Rip Walker as in the case at bar.


author: GRAVES, Justice,

text:
    Latoya Denise MOORE, A Minor by and through her Next Friend, Jerome MOORE v. MISSISSIPPI VALLEY GAS COMPANY, A Mississippi Corporation and Rheem Manufacturing Company.
    No. 2002-CA-00639-SCT.
    Supreme Court of Mississippi.
    Nov. 6, 2003.
    Rehearing Denied Jan. 22, 2004.

      Suzanne Griggins Keys, attorney for appellant.
    Myles A. Parker, Robert Douglas Morgan, Charles E. Griffin, James L. Carroll, Dennis Brown, attorneys for appellees.
    Before McRAE, P.J., WALLER and GRAVES, JJ.
   GRAVES, Justice,

for the Court.

¶ 1. This products liability case is on appeal from an order of the Hinds County Circuit Court, First Judicial District, granting summary judgment to Mississippi Valley Gas Company (MVG) and Rheem Manufacturing Company (Rheem). The complaint in this matter was filed on July 29, 1996, by LaToya Denise Moore, a minor by and through her next friend, Daphne Sultan. Daphne Sultan, her mother, has since died, and Latoya’s father, Jerome Moore, has been substituted as her next friend.

¶ 2. The complaint alleged that on February 19, 1989, LaToya suffered injury when she fell into a tub of hot water and that the hot water was produced by Rheem’s gas water heater. Moore contended that Rheem’s water heater was unreasonably dangerous in design, that a feasible alternative existed, and that Rheem also failed to warn of the danger of its use.

¶ 3. MVG and Rheem answered, denying any liability. Discovery proceeded in this matter after which MVG and Rheem filed a combined motion for summary judgment and memorandum in support of summary judgment on September 5, 2001. On December 5, 2001, Moore filed a response to the motion for summary judgment and a supplemental response on January 18, 2002. The trial judge granted MVG and Rheem’s motion on March 12, 2002. It is from this order that Moore has filed the instant appeal. The following issues are presented for consideration by this Court:

I. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT WHEN THERE IS A GENUINE ISSUE OF MATERIAL FACT CONCERNING:
A. THE IDENTIFICATION OF THE PRODUCT INVOLVED;
B. THE DEFECTIVE CONDITION AND UNREASONABLE DANGEROUSNESS OF THE PRODUCT;
C. THE INADEQUACY OF WARNING;
D. THE FEASIBLE ALTERNATIVE DESIGN.
II. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT WHEN THE DEFENDANTS ARE NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW.

FACTS

¶ 4. At approximately 8:00 p.m. on February 18, 1989, Deborah Sultan decided to take a bath at her home located at 511 Hemlock Street in Jackson, Mississippi. On the night the incident occurred, eleven people who resided in the home were present, including Deborah Sultan’s eighteen-year-old daughter, Plaintiff Daphne Sultan, along with her eleven-month-old daughter, Plaintiff LaToya Moore.

¶ 5. Deborah Sultan only put hot water in the bathtub and filled it approximately half full and then left the bathroom to let the water cool down. Deborah Sultan partially closed the door. Approximately five minutes after Deborah Sultan left the bathroom, her nine-year-old daughter, Maranda, told her “the baby was in the tub.” Deborah then rushed to the bathroom and found plaintiff Daphne Sultan attempting to remove LaToya’s clothes. An ambulance was called, and LaToya was rushed to the hospital. It was determined that LaToya had sustained hot water burns over 90% of her body.

¶ 6. University Hospital physician, Dr. Mike Osborne, informed the Jackson Police that LaToya had suffered a “prolonged exposure to hot water, not just a quick submersion.”

¶ 7. Both plaintiff Daphne Sultan and Deborah Sultan initially told the police that LaToya fell in the bathtub of hot water while unsupervised and “that they don’t normally leave LaToya unattended while bath water is running because she has fallen in this bathtub before.” However, plaintiff Daphne Sultan changed her story a month later when on March 31, 1989, she reported to the police that her mother’s boyfriend, Glenn Stephenson, had intentionally put LaToya in the tub of hot water. Daphne Sultan returned to the police fifteen months later and renewed her accusation against Stephenson. Moreover, in different therapy sessions, Daphne Sultan repeatedly told counselors with Catholic Charities that Stephenson had badly burned LaToya.

¶ 8. Despite her accusations against Stephenson, Daphne Sultan eventually filed this lawsuit on July 29, 1996, wherein she blamed the incident on the landlord, Defendant Gene Rice, MVG, and Rheem. Gene Rice was ultimately dismissed with prejudice.

DISCUSSION

A. THE IDENTIFICATION OF THE PRODUCT INVOLVED.

¶ 9. Moore argues that the accused hot water heater was a 40-gallon Rheem hot water heater. The record reveals that there is no witness who can identify the make, model, or manufacturer of the allegedly defective hot water heater. The only evidence of any involvement by Rheem is a sales invoice stating that Cornelius Williams, who previously resided at 511 Hemlock, purchased a 40-gallon hot water heater, Serial # 0181M17815 (the 1981 hot water heater), from MVG on February 13, 1981. This receipt does not indicate at what address the listed hot water heater was installed. Williams is deceased. Waller Plumbing, who installed the hot water heater, no longer exists. In 1991, Rice, the landlord, replaced the 1981 hot water heater with a new one. This was due to a leak which developed in the hot water heater. The 1981 hot water heater was discarded, and Rice is unaware whether it was a Rheem product or bore the Serial # 0181M17815. Several years later, the 1991 hot water heater began to leak, and it was replaced in 1996 with yet another hot water heater.

¶ 10. More than seven years after La-Toya’s 1989 burning, Rheem and MVG first learned of the incident when they were served with the instant lawsuit, which was filed in 1996. Because the 1981 hot water heater had already been destroyed, Rheem and MVG did not have the opportunity to identify, view, inspect or test the hot water heater. Thus, no one is certain whether the 1981 hot water heater was in fact a Rheem product. Therefore, a jury verdict would be based on speculation and/or conjecture. Mississippi law is clear and unambiguous that such a verdict cannot stand. Barnes v. Taylor, 347 So.2d 972, 974 (Miss.1977). We find that there is insufficient evidence to determine the producf/manufacturer identification.

B. THE DEFECTIVE CONDITION AND UNREASONABLE DANGEROUSNESS OF THE PRODUCT.
C. THE INADEQUACY OF WARNING.
D. THE FEASIBLE ALTERNATIVE DESIGN.
II. SUMMARY JUDGMENT AS A MATTER OF LAW.

¶ 11. Inasmuch as sub-issues of issue one and issue two are related, they will be discussed simultaneously. Moore argues that the defective condition of the hot water heater created an unreasonably dangerous product which failed to adequately warn consumers of its hazardous design and feasible design alternative.

¶ 12. The provisions for a products liability claim is detailed in Miss.Code Ann. § 11-1-63 which states:

(a) The manufacturer or seller of the product shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller:
(i)l. The product was defective because it deviated in a material way from the manufacturer’s specifications or from otherwise identical units manufactured to the same manufacturing specifications, or
2. The product was defective because it failed to contain adequate warnings or instructions, or
3. The product was designed in a defective manner, or
4. The product breached an express warranty or failed to conform to other express factual representations upon which the claimant justifiably relied in electing to use the product; and
(ii)The defective condition rendered the product unreasonably dangerous to the user or consumer; and
(iii) The defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought.

¶ 13. Thus, it is incumbent upon the plaintiff in any products liability action to show that the defendant’s product was the cause of the plaintiffs injuries. Assuming arguendo that the 1981 hot water heater was in fact a Rheem brand, the evidence is undisputed that it would have complied with all mandatory and voluntary government and industry standards, including the standards of the American Gas Association (AGA) and the American National Standards Institute (ANSI). All models of Rheem hot water heaters are tested and certified to the standards promulgated by the AGA and ANSI. More specifically, a 1981 Rheem hot water heater would have complied with ANSI Z21.10.1 and contained the scald warning language required under the standard.

¶ 14. Additionally, Deborah Sultan was renting the residence under the Section 8 housing program of Housing and Urban Development (HUD), and HUD inspected the residence prior to the Sultan’s moving into it. HUD’S May 5, 1988, inspection revealed no problems with the 1981 hot water heater. As part of its annual review process, HUD conducted another inspection on March 30, 1989, six weeks after the incident. HUD again found nothing wrong with the 1981 hot water heater. Although HUD listed a number of needed repairs, none of the repairs related to the 1981 hot water heater or the home’s hot water temperature. Deborah Sultan never complained to HUD inspectors that the water was too hot or that there was anything wrong or defective with the 1981 hot water heater.

¶ 15. This Court applies a de novo standard of review to a trial court’s grant or denial of summary judgment. Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002 (Miss.2001). Our appellate standard for reviewing the grant or denial of summary judgment is the same standard as that of the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure, which states that summary judgment shall be granted if “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The burden of demonstrating that no genuine issue of fact exists is on the moving party. However, “when a party opposing summary judgment on a claim or defense as to which that party will bear the burden of proof at trial, fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law.” Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss.1987). Moore has failed to meet that burden here.

CONCLUSION

¶ 16. It is truly tragic that young LaTo-ya Moore was seriously injured. However, Moore’s claims were properly dismissed because she has failed to prove a case beyond mere speculation. There is no evidence that, the accused hot water heater was installed at Deborah Sultan’s residence, and there is no evidence that, even if installed there in 1981, the same hot water heater was still operating there in 1989. Because the product was destroyed, Moore cannot prove that the accused hot water heater reached the consumer without substantial change or alteration.

¶ 17. Additionally, there is no evidence to support Moore’s contention that Rheem and MVG grossly disregarded or were recklessly indifferent to Moore’s safety. In 1981, Rheem’s hot water heater would have been tested and certified to industry standards. For the aforementioned reasons, we affirm the summary judgment for MVG and Rheem.

¶ 18. AFFIRMED.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, EASLEY AND CARLSON, JJ., CONCUR. DIAZ, J„ NOT PARTICIPATING.


text:
    Romika PERKINS v. STATE of Mississippi.
    No. 2001-KA-01135-SCT.
    Supreme Court of Mississippi.
    Nov. 13, 2003.
    Rehearing Denied Jan. 22, 2004.

      Ray T. Price, Hattiesburg, John D. Smallwood, Tupelo, attorneys for appellant.
    Office of the Attorney General, By: Jean Smith Vaughan, attorneys for appel-lee.
    Before McRAE, P.J., EASLEY and GRAVES, JJ.
   GRAVES, Justice,

for the Court.

¶ 1. This appeal arises from a jury verdict in the Circuit Court of Warren County, Mississippi. The jury convicted Romika Perkins (Perkins) of aggravated assault, two counts of armed robbery, rape, and six counts of kidnaping. He was ultimately sentenced to 35 years on count I of the indictment (armed robbery), 35 years on each count II of the indictment (armed robbery), 35 years on counts III-VIII of the indictment (kid-naping), 20 years on count IX (aggravated assault) and a life sentence on count X of the indictment (rape). All sentences to run consecutively. Aggrieved by the convictions and sentences, Perkins filed a motion for J.N.O.V. or in the alternative for a new trial which was denied by the trial court. Perkins appeals and raises seven issues:

I. Whether the trial court erred in failing to suppress statements and evidence obtained without probable cause, without a valid search warrant and in violation of Perkins’s federal and state constitutional rights;
II. Whether Miss.Code Ann. § 97-3-53 is unconstitutionally vague and ambiguous in violation of the First and Fourteenth Amendments to the United States Constitution;
III. Whether the trial court erred in failing to enter a directed verdict in favor of Perkins as to three counts of kidnaping as they relate to the minor children under ten.
IV. Whether the trial court erred in sentencing Perkins to 35 years for each count of kidnaping as the maximum sentence allowed under Miss. Code § 97-3-53 is 30 years.
V. Whether the trial court erred in failing to enter a directed verdict or JNOV as to count IX of the indictment as it relates to Romiko Perkins as the State failed to prove the elements of aggravated assault as alleged.
VI. Whether the trial court committed error in allowing in-court identification of Perkins by victims.
VII. Whether the trial court committed cumulative error in the voir dire process.

Perkins also raises the issue of ineffective assistance of counsel in his supplemental brief.

FACTS

¶2. In July of 1999, the adult female victim and her four children, ages three months to fourteen years, went to look at a house that they were interested in purchasing. The victim and her husband were looking for a larger home and found an ad in the newspaper describing a home in Vicksburg, Mississippi. The victim called Mr. Triplett (“Triplett”), the owner of the home, and set up an appointment to view the home. The victim’s husband, who works the night shift, did not accompany his wife and children to the home.

¶ 3. The victim and her four children arrived at the home at the designated time and exited their vehicle. The victim was carrying her three month-old child in a car seat when they approached the home. The victim saw a white car in the driveway and assumed it belonged to the owner of the home. She and her children were met in the driveway by two men, Romika Perkins (“Perkins”) and Darren Warren (‘Warren”). The men had been out drinking the night before and slept in the house, believing it to be abandoned. When Perkins and Warren heard the car approaching, they armed themselves. Perkins had a handgun, and Warren had an aluminum baseball bat. Perkins put on a ski mask, and Warren covered his face with panty hose.

¶ 4. The victim and her children were met by Perkins and Warren and were told to get down on the ground. In the meanwhile, Triplett arrived and drove down the driveway, and the victim and her children were all forced into the house and ordered to get into a closet while Perkins and Warren lay in wait for Triplett. Triplett entered the home and was surprised by the two men who immediately demanded his wallet. Triplett complied and was hit in the head with the baseball bat, knocking him unconscious. The two men then tied him up with cords that they found in the house.

¶ 5. The men took the victim out of the closet and showed her Triplett, who was lying on the floor bleeding and unconscious, telling her that if she did not cooperate that the same thing would happen to her. While the victim was in the closet with her children, she could hear the men beating Triplett so she removed her jewelry and placed it by the door in hope that the men would take it and not hurt her or her children. The men then forced the victim to get her purse from her vehicle and give them her cash, ATM card and PIN number.

¶ 6. Perkins took the victim to a small room upstairs, leaving the children locked in the closet and Warren to “watch” Triplett. While inside this room, Perkins forced the victim to remove her clothing, placed her shirt over her face, and raped her. After the rape, the victim lost control of her bodily functions. She was then ordered to put her clothes back on and was taken back downstairs where Warren was located. After realizing that the victim had lost control of her bodily functions, Warren ordered the victim to “clean herself up.” She did so and was then ordered to remove all of her clothing once again. After she removed her clothing, Warren put her clothing in the toilet to prevent her from escaping. Once she was again naked, she was forced to perform oral sex on Warren.

¶ 7. After performing oral sex on Warren, the victim, not knowing that her clothing had been put in the toilet, asked if she could put her clothes back on but was forced to remain naked. The two men then brought her fourteen year old son into the room, where his mother remained unclothed, and tied the two together with computer wire and cords from the window blinds. The two men covered the victim and her son with a sheet and left the room.

¶ 8. During the time the victim was being raped, Triplett regained consciousness periodically, and each time he tried to come to the victim’s assistance, he was again hit or kicked in the head. Finally, Perkins and Warren left the house, promising to return if.the PIN. number given by the victim was incorrect.

¶ 9. Although he was still disoriented, Triplett was able to get flee, and the victim’s fourteen year old son was able to get the wires loose enough to slip out of the confinement. The victim then cut herself free using a pair of fingernail clippers that she had in her purse. She covered herself with the sheet that had been draped over her and her son, got her three other children out of the closet, and exited the home. The victim’s fourteen year old son ran to the minivan and discovered that the keys were still in the van. The victim and her children got in the van and drove down the driveway to pick up Triplett, who was still very disoriented and who was walking to the neighbor’s house to get help. The victim’s fourteen year old son drove the victims to the emergency room for help.

¶ 10. Perkins and Warren used the ATM card in three different places, two of which captured the image of the perpetrator on video. One video from Mutual Credit Union showed the user as a person wearing a distinctive pair of sunglasses. The perpetrators were stopped the following afternoon by an officer who recognized the white Pontiac Grand Am from the description that was given to the police by the victims. When he stopped the car, he recognized that one of the men in the car was wearing what looked like the same sunglasses that had been recorded on the video at the ATM machine. The wearer of the sunglasses was Perkins, and when the vehicle was searched, a baseball bat was found in the trunk. The blood stains on the bat were tested and proved to be that of Triplett. Perkins confessed to the crimes and told the officers that the two had used the ATM card and divided the money. The two men stayed at a Scottish Inn, the night of the crime, and the victim’s jewelry, ATM card and Triplett’s credit cards were recovered from the room.

DISCUSSION

I. WHETHER THE TRIAL JUDGE ERRED IN FAILING TO SUPPRESS STATEMENTS AND EVIDENCE OBTAINED WITHOUT PROBABLE CAUSE, WITHOUT A VALID SEARCH WARRANT AND IN VIOLATION OF PERKINS’S FEDERAL AND STATE CONSTITUTIONAL RIGHTS.

¶ 11. Perkins asserts that the trial judge erred by admitting evidence obtained from the white Pontiac Grand Am without a warrant for Perkins’s arrest. Perkins claims that the stop of the vehicle was an “investigatory stop” and that Perkins was placed in custody as a result. He further claims that the stop was illegal and that the evidence obtained from the car and his subsequent confession to the crimes that followed should have consequently been suppressed. These same arguments were raised at trial and were denied by order of the trial judge.

¶ 12. A traffic stop was made by a Vicksburg police officer on the day following the crimes. As a result of the stop, Perkins was handcuffed and placed in “investigative custody.” Perkins was then detained for the purpose of identification. Perkins claims that the officer had no reason to stop and/or arrest him and that all evidence obtained as a result of that stop and arrest should have been excluded by the trial court.

¶ 13. The admission of evidence is governed by the trial court, and its decision will not be reversed unless an abuse of discretion occurred. Gray v. State, 728 So.2d 36, 56 (Miss.1998). Perkins sought to exclude all statements and physical evidence obtained as a result of his stop and arrest. Following the suppression hearing, the trial judge reviewed the testimony, the videotapes and other evidence and that the stop and arrest of Perkins was based on probable cause.

An officer or private person may arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence; or when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it; or on a charge, made upon reasonable cause, of the commission of a felony by the party proposed to be arrested. And in all cases of arrest without a warrant, the person making such arrest must inform the accused the object and cause of the arrest, except when he is in actual commission of the offense, or is arrested on pursuit.

Miss.Code Ann. § 99-3-7(1) (Rev.2000) (emphasis added).

¶ 14. We find that the stop and arrest were legal for several reasons: (1) The arresting officer stated that he knew that multiple crimes had been committed; (2) the officer had previously reviewed a composite videotape showing a man wearing a distinctive pair of “thick gold” glasses and using one of the victim’s ATM cards; (3) the officer stated that he was given a description of the white Pontiac Grand Am; and (4) the officer knew that the victims had described their assailants as having “sideburns and scruffy facial hair.”

¶ 15. The officer knew that the perpetrators were armed and dangerous, thus, when he stopped the vehicle that matched the description given by the victims, he detained the suspect until help arrived. The officer further stated that he recognized the driver as the person he had seen on the bank videotape. The officer had a reasonable belief that a crime had been committed and that the person he had stopped may have committed that crime. See Haddox v. State, 636 So.2d 1229, 1233 (Miss.1994); Bevill v. State, 556 So.2d 699, 709 (Miss.1990) (reasonable belief to stop and take into custody for questioning). Because the traffic stop and arrest were legal, any evidence seized as a result was admissible as determined by the trial judge.

¶ 16. Perkins also argues that the means by which the Vicksburg Police Department obtained the search warrant for Perkins’s vehicle were illegal. Perkins argues that the affidavit used to obtain the warrant contained fraudulent statements. The affidavit contained a description of the vehicle driven by the suspects and stated that the “subject vehicle was stopped by an officer on a routine traffic stop” and that “the officer recognized the vehicle and the driver based on a previous description by the victims.” Perkins claims that these statements are false and misleading.

¶ 17. The affidavit states that the vehicle was stopped by an officer on a routine traffic stop, however, it further states that the officer “recognized the vehicle and the driver based on a previous description by the victims.” Thus, we find this argument to be without merit.

II. WHETHER MISS. CODE ANN. § 97-3-53 IS UNCONSTITUTIONALLY VAGUE AND AMBIGUOUS IN VIOLATION OF THE FIRST AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE MISSISSIPPI CONSTITUTION.

¶ 18. Perkins argues that the use of the term “kidnaping” to define the criminal offense of kidnaping fails in Miss.Code Ann. § 97-3-53 to provide any person with fair notice of what conduct is prohibited and as a result is unconstitutionally vague. That statute reads:

Any person who shall without lawful authority forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be secretly confined or imprisoned against his or her will, or shall without lawful authority forcibly seize, inveigle or kidnap any child under the age of ten (10) years and secretly confine such child against the will of the parents or guardian or person having the lawful custody of such child, shall, upon conviction, be imprisoned for life in the state penitentiary if the punishment is so fixed by the jury in its verdict. If the jury fails to agree on fixing the penalty at imprisonment for life the court shall fix the penalty at not less than one (1) year nor more than thirty (30) years in the state penitentiary. This section shall not be held to repeal, modify or amend any other criminal statute of this statute.

Miss.Code Ann. § 97-3-53.

¶ 19. This Court determined in Cassibry v. State, 404 So.2d 1360, 1368 (Miss.1981), following Roth v. United States 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), that “the wording of a statute does not necessarily offend the requirements of due process as long as the language provides a ‘sufficient warning as to the proscribed conduct when measured by common understanding and practices Id. Perkins has failed to overcome the presumption that the statute is constitutional, particularly since other descriptive words, e.g., inveigle, are used in the definition of kidnaping, leaving Perkins well informed of the crime with which he was accused.

III. WHETHER THE TRIAL COURT ERRED IN FAILING TO ENTER A DIRECTED VERDICT IN FAVOR OF PERKINS AS TO THREE COUNTS OF KIDNAPING AS THEY RELATE TO THE MINOR CHILDREN UNDER TEN.

¶ 20. Perkins argues that the portion of § 97-3-53 pertaining to the kidnaping of children under the age of ten was absent from Counts VI, VII and VIII of the indictment and that this absence was reversible error as to said counts. Perkins argues, in the alternative, that because the victim knew where her children were during the events of July 18, 1999, that they were not “secretly confined ... against the will of the parents.”

¶ 21. The indictment, while not repeating the statute verbatim, was sufficient to inform Perkins of the crimes with which he was accused. Although Counts VI, VII and VIII of the indictment did not repeat the statute verbatim, each count contains the number of the statute (97-3-53), which gave Perkins ample notice of the crimes with which he was charged. See Gray v. State, 728 So.2d at 70 (¶ 171).

¶ 22. Perkins’ argument that the children were not “secretly confined” is without merit. The victim certainly knew that her children were being held against her will and that they had been forced into a closet at gunpoint. The victims was later taken out of the closet and into another part of the house. She had no knowledge of where her children might have been when she was not physically with them. Furthermore, the father certainly had no knowledge that his family was held at gunpoint and that his children were forcibly held in the closet. He was at home and had no knowledge that his family was in danger or was confined, and if the oldest son had not broken the bonds of his wrists and ankles, all of the victims would have been held there without anyone’s knowledge.

¶ 23. Therefore we find these arguments are without merit and that the trial judge properly denied the motions for a directed verdict and JNOV as to these counts.

IV. WHETHER THE TRIAL COURT ERRED IN SENTENCING PERKINS TO 35 YEARS FOR EACH COUNT OF KIDNAPING AS THE MAXIMUM SENTENCE ALLOWED UNDER MISS. CODE ANN. § 97-3-53 IS 30 YEARS.

¶ 24. Perkins was charged with six counts of kidnaping. Each count alleges that he violated Miss.Code Ann. § 97-3-53. The jury found him guilty on each count but could not agree on a penalty of imprisonment. As such, the penalty was affixed by the trial court which imposed a penalty of 35 years for each kidnaping count. This penalty is in excess of the maximum penalty allowed. The penalty provisions of Miss.Code Ann. § 97-3-53 read as follows: “shall, upon conviction, be imprisoned for life in the state penitentiary if the punishment is so fixed by the jury in its verdict. If the jury fails to agree on fixing the penalty at imprisonment for life, the court shall fix the penalty at not less than one (1) year nor more than thirty (30) years in the state penitentiary.”

¶ 25. The jury could not agree on the penalty and although there was no objection in the record at trial, and the matter was not raised in the motion for a new trial, in sentencing Perkins to 35 years on each count of kidnaping, the trial court plainly exceeded its sentencing authority. Due to the fact that there was no objection at trial and the application of law is erroneous, this Court will take notice of plain error in the sentencing of Perkins on each of the kidnaping convictions to 35 years on each count when the statutory limitation of penalty is 30 years under Miss.Code Ann. § 97-3-53. Watts v. State, 733 So.2d 214, 233 (Miss.1999) (“[t]he defendant who fails to make a contemporaneous objection must rely on plain error to raise the assignment on appeal.”)

¶26. We hold that the sentencing by the trial court on counts III-VIII be reversed and remanded with instructions to modify the sentences to 30 years per count to run consecutively with sentencing on all other counts.

V. WHETHER THE TRIAL COURT ERRED IN FAILING TO ENTER A DIRECTED VERDICT OR JNOV AS TO COUNT IX — AGGRAVATED ASSAULT — OF THE INDICTMENT AS IT RELATES TO ROMI-KA PERKINS AS THE STATE FAILED TO PROVE THE ELEMENTS OF AGGRAVATED ASSAULT AS ALLEGED.

¶ 27. Perkins argues that the testimony given at trial does not support a charge or conviction of aggravated assault. Perkins asserts that during the attack on Triplett, the victim and her children were unable to see who was hitting whom and with what as she and her children remained in a closet.

¶ 28. Our standard for reviewing the legal sufficiency of the evidence, is:

When on appeal one convicted of a criminal offense challenges the legal sufficiency of the evidence, our authority to interfere with the jury’s verdict is quite limited. We proceed by considering all of the evidence — not just that supporting the prosecution- — -in the light most consistent with the verdict. We give the prosecution the benefit of all favorable inferences that may be reasonably drawn from the evidence. If the facts and the 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, reversal and discharge are required. On the other hand, if there is in the record such substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fairminded jurors in the exercise of impartial judgement might have reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb. See e.g., Gavin v. State, 473 So.2d 952, 956 (Miss.1985); May v. State, 460 So.2d 778, 781 (Miss.1984).

Benson v. State, 551 So.2d 188, 192-93 (Miss.1989).

¶ 29. This Court has further held that it may reverse only where “with respect to one or more elements of the offense charged, the evidence so considered is such that reasonable and fair minded jurors could only find the accused not guilty.” Pinkney v. State, 538 So.2d 329, 353 (Miss.1988).

¶ 30. The State’s evidence clearly showed that the victims of the robbery were put in fear of their lives by the exhibition of a deadly weapon. The perpetrators were armed with a gun and a baseball bat and in fact used the baseball bat on Triplett. Triplett was hit on the head with the bat to the extent that he was unconscious and later disoriented. He testified that “I was almost out, and then I remember in my dazed condition I took several kicks, which I believe most of them were coming from the guy with the gun” (Perkins). Triplett suffered severe bodily injury requiring medical attention. The victim was forced to turn over her debit card and PIN number, was then raped, forced to perform oral sex and then threatened that if the PIN number was wrong the men would return to harm her and her children. Further, the victims and her son were tied together by telephone wire and cords from the mini-blinds.

¶ 31. We find that the State put on sufficient evidence to warrant a charge and conviction for aggravated assault. Thus this argument is without merit.

VI. WHETHER THE TRIAL JUDGE COMMITTED ERROR IN ALLOWING IN-COURT IDENTIFICATION OF PERKINS BY VICTIMS.

¶ 32. Perkins asserts that the trial court erred by admitting identification testimony from the victims. He further asserts, by his reliance on Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), that the in-court identification was somehow impermissibly tainted by the pretrial identification. However, this reliance is misplaced. Perkins made no assertion at trial that the pretrial photo lineup shown to the victims had somehow impermissibly tainted the in-court identification. Perkins did not argue a cause/effect problem, he merely objected “[tjhat’s an in-court identification.... His representation is that this morning she couldn’t identify him.” The trial judge interpreted this affirmative statement as an objection and overruled the objection.

¶ 33. It has long been held by this Court that an objection must be made with specificity in order to preserve it for appeal. Oates v. State, 421 So.2d 1025, 1030 (Miss.1982). Perkins may have intended to show a causal connection by his remarks to the judge, but he did not make it clear at trial in order to preserve it. Perkins cannot now argue new grounds for an objection on appeal. Lester v. State, 692 So.2d 755, 772 (Miss.1997).

¶ 34. This proposition was not properly preserved at trial specifically in terms of pretrial identification having a deleterious effect on in-court identification, thus we decline to review this issue.

VII. WHETHER THE TRIAL COURT COMMITTED CUMULATIVE ERROR IN THE VOIR DIRE PROCESS.

¶35. Perkins asserts three sub-issues regarding cumulative error in the voir dire process. This Court will review the first “sub-issue” but as Perkins cites no supporting authority for his second and third “sub-issues” we will not review them. This Court determined in Kelly v. State, 553 So.2d 517, 521 (Miss.1989), that “[w]e are under no obligation to consider assignments of error when no authority is cited.” See also Stewart v. State, 596 So.2d 851 (Miss.1992).

¶ 36. In voir dire Perkins challenged the State’s reasons for his choice of jurors under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), as racially based. This Court addressed the parameters of a Batson claim in Griffin v. State, 607 So.2d 1197 (Miss.1992), finding that a defendant must make a prima facie showing of purposeful racial discrimination in the selection process by the prosecution. The defense must show:

(1) that he is a member of a racially cognizable group;
(2) that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race, and;
(3) that these facts and other relevant circumstances raise an inference that the prosecutor used that practice to exclude veniremen from the petit jury on account of their races which is an inference of purposeful discrimination.

Id. at 1202 (citing Batson, 476 U.S. at 96, 1Q6 S.Ct. 1712).

¶ 37. In the case at bar, the trial court found that Perkins had made a prima facie Batson claim and required the State to present reasons for venire exclusions regarding five African-American jurors who the State struck for cause. Specifically, jurors Baddie, Butler, Bridges, Hollis and “Juror No. 31.”

¶ 38. The reasons provided by the State for striking juror Baddie were that he lived in the same neighborhood as the defendant’s aunt, that he had a prior criminal conviction in his family and that he stated that he had prior jury service that he did not like. The reasons provided by the State for striking juror Butler were that he had a prior criminal conviction in his family, he stated in voir dire that he had served on a jury “two years ago in 1998” (this trial was held in April, 2001) and he fell asleep during voir dire. The reasons provided by the State for striking juror Bridges were that he personally knew and worked with the defendant’s aunt. The reasons provided by the State for striking juror Hollis were that when the prosecution asked the question regarding whether or not anyone knew the defendant’s family, he failed to give any response. But when defense counsel asked if anyone knew the defendant’s family he stated that “yeah, he knew the family but he could be fair and impartial.” The reasons provided by the State for striking juror No. 31 were that she also knew the Perkins family and stated that she “had problems with the police.” She also had a family member with a criminal conviction.

¶ 39. In the case at bar, Perkins was granted a change of venue from Warren County where the crimes were committed, to Lowndes County, Perkins’s home county. Most of the challenges presented by the State arose out of familial relationships between members of the venire and Perkins’s family. Further, the State’s justification need not rise to a level of a challenge for cause. Benson v. State, 551 So.2d at 192. At the beginning of jury selection the State accepted four African-Americans, one of whom was stricken by the defense. The reasons presented by the State were found by the trial judge to satisfy the standards of Batson as founded on racially neutral reasoning. This Court finds that the trial court made no error in allowing the State to strike said five veniremen for cause.

VIII. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 40. Perkins’s final argument is one made by direct appeal alleging ineffective assistance of counsel. Perkins asserts that defense counsel failed to object to the admission of evidence and that defense counsel made a mistake by requesting severance without his knowledge.

¶ 41. To establish ineffective assistance of counsel, Perkins must show that (1) his counsel’s performance was deficient and (2) prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), adopted by this Court in Stringer v. State, 454 So.2d 468 (Miss.1984). “The benchmark for judging any claim of ineffectiveness muse be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052.

¶ 42. Perkins’s allegation that counsel made mistakes during trial by requesting severance without his knowledge is without merit. Perkins provides nothing in his brief to support such an allegation. The trial court has the discretion to sever all cases except death penalty cases, and that discrimination would only rise to a level of abuse if the defense of one of the co-defendants tended to exculpate him at the expense of the other or if the balance of the evidence tilted more toward guilt of one co-defendant than the other. Gossett v. State, 660 So.2d 1285, 1289 (Miss.1995). If anything, the statement of Derrick Warren reveals that a severed trial was beneficial to Perkins, as Warren’s statement only proved to further implicate Perkins in the charged crimes.

¶ 43. Perkins’s final argument is that defense counsel erred by failing to object to the admission of his statement made to the police. However, defense counsel did object to the admission of the statement and moved to suppress the statement arguing that it was illegally obtained. The trial judge heard all of the evidence, reviewed the videotape and denied the motion, finding that the statement was freely, voluntarily and intelligently given.

¶ 44. Trial counsel filed numerous pretrial motions and argued diligently on behalf of Perkins. Considering the overwhelming weight of the evidence and totality of counsel’s performance, Perkins has failed to overcome the presumption that counsel’s performance was constitutionally effective under the Strickland standard. Given the foregoing, we find that this argument is without merit.

CONCLUSION

¶ 45. For the aforementioned reasons, we affirm the trial court’s judgment except we reverse and remand in part with instructions to modify sentencing as follows: on counts III-VIII the sentence will be 30 years per count to run consecutively with sentencing on all other counts.

¶ 46. COUNT I: CONVICTION OF ARMED ROBBERY WITH A DEADLY WEAPON AND SENTENCE OF THIRTY-FIVE (35) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

COUNT II: CONVICTION OF ARMED ROBBERY WITH A DEADLY WEAPON AND SENTENCE OF THIRTY-FIVE (35) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

COUNTS III-VIII: CONVICTION OF KIDNAPING FOR EACH COUNT, AFFIRMED. REVERSED AND REMANDED WITH INSTRUCTIONS TO MODIFY THE SENTENCING IN COUNTS III-VIII TO THIRTY (30) YEARS FOR EACH COUNT AND TO RUN CONSECUTIVELY WITH ALL OTHER COUNTS.

COUNT IX: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

COUNT X: CONVICTION OF RAPE AND SENTENCE OF LIFE IMPRISONMENT WITHOUT PAROLE OR EARLY RELEASE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. ALL SENTENCES SHALL RUN CONSECUTIVELY.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, EASLEY AND CARLSON, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.


author: MYERS, J.,

text:
    Jim H. AUSTIN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01740-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2003.
    Rehearing Denied Jan. 13, 2004.

      Jim H. Austin, Appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   MYERS, J.,

for the Court.

¶ 1. Jim H. Austin entered a guilty plea to a single count of rape in the Lee County Circuit Court on May 22, 1997. In March of 2002, Austin sought post-conviction relief on the grounds that his guilty plea was not knowingly, intelligently and voluntarily made, he was denied effective assistance of counsel, the plea agreement was breached by the State, and the indictment was defective. The circuit court dismissed the petition finding that it was time barred. We agree.

STATEMENT OF FACTS

¶ 2. On February 1, 1996, Austin was indicted by a Lee County grand jury on a single count of rape as a habitual offender, pursuant to Mississippi Code Annotated Section 99-19-81. According to a plea agreement between the State and Austin, the State dropped the habitual offender portion of the charge and a second charge of jail escape. On May 22, 1997, Austin pled guilty to rape. The plea was accepted. Upon the State’s recommendation, Austin was sentenced to serve a thirty year sentence in the custody of the Mississippi Department of Corrections. More than three years later, in March of 2002, Austin filed a pro se motion for post-conviction relief pursuant to Mississippi Code Annotated Section 99-39-5 (Rev.2000). Austin argued four points of error: his guilty plea was not knowing, intelligent and voluntary; he was denied effective assistance of counsel; the State breached the plea agreement; and the indictment was defective. The circuit court denied the relief as time barred. Austin appeals arguing the same four issues.

STANDARD OF REVIEW

¶ 3. “When reviewing a lower court’s decision to deny a petition for post-conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised the applicable standard of review is de novo.” Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

LEGAL ANALYSIS

¶ 4. The trial court properly denied Austin’s motion for post-conviction relief as being time barred. The Mississippi Uniform PosWConviction Collateral Relief Act states that motions for post-conviction relief from guilty pleas shall be made “within three years after entry of the judgment of conviction.” Miss.Code Ann. § 99-39-5(2) (Rev.2000). Since Austin pled guilty on May 22, 1997, and his motion for relief was filed on March 26, 2002, his claim is time barred. The latest possible date that Austin could file his motion for post-conviction relief was May 22, 2000. Unless a prisoner’s claims fall within one of the three statutory exceptions, his petition for post-conviction relief is time barred. Bevill v. State, 669 So.2d 14, 17 (Miss.1996).

¶ 5. Austin’s first claim is that his guilty plea was not knowingly, intelligently and voluntarily made. This claim falls squarely into the type of claim that the post-conviction statute requires to be made within three years. The statute reads, “Any prisoner in custody under sentence of a court of record of the State of Mississippi who claims: (f) That his plea was made involuntarily” shall bring a motion for relief within three years. Miss.Code Ann. § 99 — 39—5(l)(f) (Rev.2000); see also Wallace v. State, 823 So.2d 580, 582(¶ 5) (Miss.Ct.App.2002) (citing Kirk v. State, 798 So.2d 345, 346(¶ 6) (Miss.2000)). Austin asserts that his plea was not knowing, intelligent and voluntary because he was not informed that upon pleading guilty to a sex offense, Austin would no longer be eligible for parole. See Miss.Code Ann. § 47-7-3 (Rev.2000).

¶ 6. Austin argues that the trial court and his attorneys never informed him of what he refers to as the “mandatory minimum” sentence according to Mississippi Code Annotated Section 47-7-3(b). This Court in White v. State, 751 So.2d 481 (Miss.Ct.App.1999), remanded the case for an evidentiary hearing based on the petitioner’s claims that he was erroneously informed of his parole eligibility. Austin makes a similar claim when he states that his attorney erroneously told him that he would only have to serve twenty-five percent of his sentence and that the plea agreement was a good one. It should be noted, however, Austin cannot decide which percentage of his sentence he believed he had to serve. In one place in his brief, Austin states his attorney told him twenty-five percent, in another place Austin mentions fifty percent. Regardless, the primary distinction between White and the present case is that White’s claim was not time barred and Austin’s is. The Court did not have to reach the time bar issue in that case. The majority stated, “A petitioner is entitled to an in-court opportunity to prove his claims if the claims are procedurally alive and show a substantial denial of a state or federal right.” Id. at 483(¶ 4) (citing Washington v. State, 620 So.2d 966, 967 (Miss.1993)). In this case, Austin’s claim on the voluntariness of his plea is not procedurally alive. Our case law has repeatedly held that once a prisoner’s claims are time barred, they must fall into one of the enumerated exceptions to remain viable. Patterson v. State, 594 So.2d 606, 608 (Miss.1992); Singleton v. State, 840 So.2d 815, 818(¶ 8) (Miss.Ct.App.2003). Austin’s claim on the voluntariness of his plea is time barred.

¶ 7. Austin’s second claim is that he received ineffective assistance of counsel due to his attorney’s failure to inform him that his sentence would be served without parole and misinforming him that he would be eligible for parole after a certain period of time. This claim also falls within the type of claim that the statute requires to be brought within three years of the guilty plea. Miss.Code Ann. § 99-39-5(l)(a) (Rev.2000); see also Kirk v. State, 798 So.2d 345, 346(¶ 6) (Miss.2000). Austin relies on the case of Luckett v. State, 582 So.2d 428 (Miss.1991), when he asserts that his claim should not be subject to the three-year procedural limit. That case stated, “Errors affecting fundamental constitutional rights may be excepted from procedural bars which would otherwise prohibit their consideration.... ” Id. at 430. However, in Bevill v. State, 669 So.2d 14, 17 (Miss.1996), the court stated that merely raising a claim of ineffective assistance of counsel by itself is not enough to overcome the procedural bar. Also, “a state may attach reasonable time limitations to the assertion of federal constitutional rights.” Cole v. State, 608 So.2d 1313, 1319-20 (Miss.1992). The record clearly reflects that the trial judge questioned Austin regarding his satisfaction with his counsel. Austin did not voice any complaints at that time. Austin responded in the affirmative on the question as to whether he was satisfied with his counsel. Austin has provided no other evidence beside his own version of the facts to support his claim of ineffective assistance of counsel. This issue is also time barred.

¶ 8. Austin’s third claim that the State breached the plea agreement and his fourth claim of defective indictment both must be brought within the three-year window. See Golmon v. State, 844 So.2d 1178 (Miss.Ct.App.2003). Austin failed to file his motion for post-conviction relief during the three year statutory limit, so these issues are likewise time barred.

¶ 9. To circumvent the three-year rule, Austin must demonstrate that his claim falls within one of the statutory exceptions. The statute provides several exceptions to the three-year rule. The exceptions include cases in which the prisoner can demonstrate either that there has been an intervening decision of the supreme court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such a nature that it would be practically conclusive had it been introduced at trial and would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Miss.Code Ann. § 99-39-5(2) (Rev.2000).

¶ 10. For the first time on appeal, Austin alleges that he has newly discovered evidence and thus his motion for post-conviction relief should be granted. Austin argues that his new evidence is that as a convicted sex offender, Austin was not eligible for parole, and hence his thirty-year sentence was mandatory. See Miss. Code. Ann. § 47-7-3 (Rev.2000). This Court stated in Frost v. State, 781 So.2d 155, 158(¶ 7) (Miss.Ct.App.2000), “A claim of ignorance of the law is not considered newly discovered evidence.” While Austin claims he was unaware of the applicable statute until he was serving his sentence in the state penitentiary, the statute was in existence at the time of Austin’s guilty plea. To fit into the exception, the newly discovered evidence must be of such a nature that it “could not have been discovered by the exercise of due diligence at the time of trial, as well as being almost certainly conclusive that it would cause a different result.” Id. Austin’s claim does not fit this narrow exception.

¶ 11. We hold that Austin’s issues do not rise to the level of having violated a fundamental constitutional right. The record reveals that during the plea colloquy, Austin was questioned at length by the trial judge on whether Austin understood the rights he was waiving by pleading guilty. Austin affirmed that he understood the waiver and that no one induced him to plea nor promised him anything -in return for the plea. Austin was afforded the opportunity to ask questions about the State’s indictment, his sentence and the guilty plea. Austin did not take advantage of that opportunity. Also, Austin was asked by the trial judge whether he was satisfied with his representation. Austin replied in the affirmative. It is only now that Austin raises objections to his plea, his counsel, the plea agreement and the indictment. Unfortunately, Austin’s time for raising his objections as a basis for post-conviction collateral relief has passed. Since Austin’s issues are time barred and no statutory exceptions apply, the trial court properly denied Austin’s motion for post-conviction relief.

¶ 12. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT DISMISSING POST-CONVICTION RELIEF IS AFFIRMED. COSTS ARE ASSESSED TO LEE COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, CHANDLER AND GRIFFIS, JJ., CONCUR.