author: MYERS, J.,

text:
    Anita H. LINTON and Husband, Harley Linton, Appellants, v. Frank L. CROSS and Fredna S. Cross, Appellees.
    No. 2002-CA-00741-COA.
    Court of Appeals of Mississippi.
    Sept. 2, 2003.
    Rehearing Denied Oct. 21, 2003.
    Certiorari Denied July 1, 2004.
    Walter T. Rogers, Meridian, Attorney for Appellant.
    Lester F. Williamson, Meridian, Attorney for Appellee.

      Before MCMILLIN, C.J., THOMAS, MYERS and CHANDLER, JJ.
   MYERS, J.,

for the Court:

¶ 1. The Lintons and the Crosses were adjoining property owners in Lauderdale County. A fence was north of the Linton-Cross boundary. The Crosses sued to quiet title in the area that was north of their surveyed boundary but south of the fence line. The chancery court confirmed title to the property in the Crosses. The Lintons now appeal, raising one issue for our consideration: Did the trial court err in finding the Crosses established their title through adverse possession?

Facts and Procedural History

¶ 2. J.T. Lackey transferred a parcel of real property to his great-niece, Anita Linton and her husband, Harley Linton, on May 10, 1958. The description in the deed read:

The SW /4 of the NW 14 of Section 2, Township 7, Range 16, Lauderdale County, Mississippi.

¶ 3. On January 10, 1959, Lackey conveyed a ten-acre tract to Dalma Grissom. The deed described this tract as:

The NE 14 of the NW 54 of SW 14 of Section 2, Township 7, Range 16, Laud-erdale County, Mississippi.

¶ 4. Grissom later conveyed this property to the Crosses. The common boundary between the Crosses and the Lintons is the north quarter section line of the NW 14 of the SW 14 of Section 2, Township 7, Range 16 East, Lauderdale County, Mississippi and the south quarter section line of the SW 14 of the NW 14 of Section 2, Township 7, Range 16 East, Lauderdale County, Mississippi.

¶ 5. This dispute arose out of the existence of a fence that Avery had considered her northern boundary. In 1995, the Lin-tons had their property surveyed and the fence was found to lie north of the common boundary. The east end of the fence is approximately 21.3 feet north of the common boundary, and the west end is approximately 9.34 feet north of the common boundary. The fence was in existence when the Lintons received the property. Since the land had previously belonged to her great-uncle, Mrs. Linton gave testimony that she could not remember a time when the fence was not there.

¶ 6. After hearing testimony and receiving evidence, the chancery court ruled in favor of the Crosses. The chancellor later granted the Lintons’ motion for a new trial for the limited purpose of allowing the Crosses to call another witness. Following that witness’s testimony, the chancellor denied the Lintons’ request to reverse the judgment of the court, or in the alternative, for a new trial. The Lintons now appeal.

Standard of Review

¶ 7. It is well established that this Court will not reverse a chancellor’s findings unless they are clearly erroneous. Sproles v. Sproles, 782 So.2d 742, 746 (¶ 12) (Miss.2001) (citing Dillon v. Dillon, 498 So.2d 328, 329 (Miss.1986)). The supreme court has illustrated this standard by saying, “a finding of fact is ‘clearly erroneous’ when ‘although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made.’ ” Id. at 746 (¶ 13) (quoting In re Estate of Taylor, 609 So.2d 390, 392 (Miss.1992)) (quoting UHS-Qualicare v. Gulf Coast Cmty Hosp., Inc., 525 So.2d 746, 754 (Miss.1987)).

Legal Analysis

¶ 8. There are six elements that a claim of adverse possession must meet to be successful: the possession must be (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4)continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful. Crump v. State, 823 So.2d 1213, 1215 (¶ 9) (Miss.Ct.App.2002). The chancellor considered these elements and found the facts sufficient to support the Crosses’ claim of adverse possession. We will review the evidence that supports the chancellor’s finding.

Actual or Hostile Claim of Ownership

¶ 9. From the time the Crosses purchased the property in 1979 until the time of the 1995 survey, they believed the fence was the boundary between their property and the Lintons’. In fact, this was the belief of the Crosses’ predecessor in interest, the Grissoms. Once the Crosses moved onto the property in 1988, they conducted acts that would display claims of ownership, such as bushhogging the disputed area, fertilizing the pecan trees and gathering pecans on the disputed area, and constructing a horse pen on the disputed area.

¶ 10. The chancellor also believed that the Lintons thought the fence .was their boundary until the 1995 survey. While the Lintons’ testimony would suggest otherwise — -that they thought it was only a farm fence to control cattle — the chancellor found “the existence of this fence for over sixty-five years challenges the [Lintons’] testimony. The [Lintons’] actions are more consistent with an opinion that the fence was the boundary between the two parcels of land.” Indeed, there was uncon-tradicted evidence that the Lintons had not used or occupied the disputed area and that they did not object to the Crosses use of the disputed area.

Open, Notorious, and Visible

¶ 11. As the Lintons lived approximately 200 yards away from the fence line, the Crosses’ acts of ownership, or the results of them, should have been easily visible to them. The land between the Lin-tons’ house and the disputed area was not heavily wooded, and the area was clearly visible from their house.

Continuous and Uninterrupted for Ten Years

¶ 12. Uncontroverted testimony demonstrated that the Crosses performed the above-mentioned acts from 1979 until at least 1995, when a new survey showed that the fence was not the boundary between their property and the Lintons’.

Exclusive

¶ 13. There was no evidence that anyone other than the Crosses had used the disputed property from at least 1979 until 1995.

Peaceful

¶ 14. The Lintons never objected to the Crosses’ use of the disputed property. This was true even after the 1995 survey. In 1982, the Crosses and Lintons jointly repaired the fence that was the alleged boundary between their respective parcels.

Conclusion

¶ 15. In order to reverse a chancellor’s findings, an appellant has a high burden of proof. The Lintons have not met that burden. We affirm the chancellor’s findings.

¶ 16. THE JUDGMENT OF THE CHANCERY COURT OF LAUDER-DALE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . At the time of the conveyance, Grissom was unmarried and used the last name Avery.


source: Caselaw Access Project

author: McMILLIN, C.J., IRVING, J.,

license: Public Domain

text:
    Eric HEARN, Appellant, v. Harley BROWN, Jr., Appellee.
    No. 2002-CA-01029-COA.
    Court of Appeals of Mississippi.
    Sept. 23, 2003.
    Rehearing Denied March 23, 2004.
    Certiorari Denied July 1, 2004.
    Barry H. Powell, Jackson, attorney for appellant.
    Jeffrey Lee Carson, James D. Holland, Ridgeland, attorneys for appellee.
   McMILLIN, C.J.,

for the Court.

¶ 1. This is an appeal from a judgment notwithstanding the verdict entered by the trial court in a civil trial after the jury returned a verdict in favor of the plaintiff, Eric Hearn, in the amount of $100,000. Pursuant to the provisions of Mississippi Rule of Civil Procedure 50(c), the circuit court, in ruling on posttrial matters, also conditionally granted a new trial on the basis that, as to the issue of liability, the verdict was against the weight of the evidence. We find that the circuit court erred in granting a judgment notwithstanding the verdict in favor of the defense, and we remand for a new trial.

I.

Facts

¶ 2. Hearn was injured at the residence of Harley Brown, Jr. when Hearn fell through what he contended was a rotten portion of the roof to Brown’s residence. Hearn brought this action alleging negligence on the part of Brown. His theory of recovery was based upon principles of premises liability law as it has developed in Mississippi. Some of the critical facts in support of Hearn’s claim were essentially undisputed; however, there was sharply conflicting testimony as to other aspects of the proof. We will briefly summarize the facts and point out those areas where there was disputed testimony central to the outcome of the case.

¶ 3. Hearn was a fireman who also worked as a commercial roofing contractor on a part-time basis. One of his superiors at the fire department was engaged in the business of residential house painting as a sideline and had apparently contracted to do some outside painting for Brown. There was some concern about water damage and rotting of some wood on the house, and Hearn was asked by his associate to go to the home to see if he could determine the possible cause of the damage.

¶ 4. In furtherance of that purpose, Hearn went to Brown’s residence. Hearn testified that the following events occurred. He accomplished the initial purpose of his visit by making a visual inspection from the ground and determined that, at the point where water damage was apparent, there was inadequate shingle overhang, which permitted rainwater to run behind the wooden trim at the base of the roof. During the course of the conversation, Brown raised the subject that he had a leak at another point in his roof around a vent pipe and inquired of Hearn as to possible causes. Hearn indicated that he could not make that determination because the area in question was covered with a substantial amount of accumulated pine straw that needed to be removed. Brown professed a fear of heights and asked if Hearn would assist in the removal of the pine straw. Hearn agreed and went up on the roof and began to rake the pine straw toward the edge of the roof. As he neared the roofs edge, Brown suddenly called out a warning from the ground that Hearn was approaching another area known to have rotten wood. The warning came too late as Hearn fell through a rotten portion of the roof, onto and through an adjoining patio area that was covered with translucent green-tinted fiberglass material. Hearn fell through the patio roofing to a concrete surface below, receiving damages that ultimately required fairly extensive medical treatment.

¶ 5. Hearn’s theory of recovery was that the rotten area through which he fell was a hidden or latent defect known to Brown but not readily apparent to Hearn because it was covered by the accumulated mat of pine straw. In that circumstance, according to Hearn, Brown, as the individual in control of the premises, had a duty under applicable premises liability law to warn Hearn of the hidden hazard. His failure to do so (or, more precisely, his failure to do so until it was too late for Hearn to protect himself) was an act of negligence.

¶ 6. Brown testified and gave a different version of events on the day in question. He indicated that he requested that Hearn make a thorough inspection of his roof to see if there were other matters needing attention beyond the previously-discovered improper shingle overhang. Hearn indicated that he could not complete such an inspection because of the portion of the roof covered with pine straw. Brown related his own fear of heights, and at that point, Hearn requested that he be handed a rake and began to remove the pine straw, raking it toward the edge of the roof. Brown denied having any knowledge of a rotten area in the location where Hearn was raking. As Hearn neared the edge, Brown twice asked him to use special caution — not because of any known danger — but simply because Brown’s own fear of heights was causing him substantial unease. According to Brown, Hearn dismissed Brown’s statements of concern by reminding him that he had been in the roofing business for twenty-two years and had yet to fall off a roof. At some point, Hearn put his foot off the edge of the roof, using one of the braces for the patio cover as a foot rest, and it was at that point that Hearn fell through the patio covering. Brown testified that, after Hearn’s fall, he had occasion to view the area where the fall occurred, and there was no evidence of rotting or other structural failure of the roofing area of the house.

¶ 7. The jury returned a verdict in favor of Hearn in the amount of $100,000. The trial court, reciting that it had “considered all of the evidence ... with all reasonable inferences in the light most favorable to [Hearn],” concluded that Hearn had “failed to meet his burden of proving the requisite elements of his claims.... ” The court therefore ordered the entry of a judgment in favor of Brown notwithstanding the jury’s verdict. The court further ordered that “[i]n the alternative, the Court finds that [Brown’s] motion for a new trial on liability is proper and should be granted.”

¶ 8. Hearn perfected this appeal in which he raises two issues. First, he contends that the trial court erred in directing entry of a verdict against him because the evidence was not such that a reasonable jury fairly assessing the evidence could only find in favor of the defendant, Brown. Secondly, he argues that the verdict was not against the weight of the evidence and that the trial court therefore abused its discretion in ordering a new trial.

¶ 9. For reasons we will proceed to explain, we find Hearn’s first issue to have merit, and we reverse the judgment entered by the trial court in favor of Brown. However, as to the second issue, we determine the order granting a new trial to be interlocutory in nature and, thus, beyond our jurisdiction to consider at this point. For that reason, we reverse and remand for a new trial.

II.

Judgment Notwithstanding the Verdict

¶ 10. A verdict returned by a jury in a civil case is afforded substantial deference when the dissatisfied litigant seeks to have the court enter a judgment compelling a contrary outcome.

All credible evidence tending to support the non-movant’s case and all favorable inferences that can be reasonably drawn therefrom are accepted as true and go to the benefit of the non-movant. If after examining the evidence, reasonable and fair-minded jurors could reach different conclusions, the jury verdict should be allowed to stand and the JNOV motion denied.

Weathersby Chevrolet Co. v. Redd Pest Control, 778 So.2d 130, 132(¶ 5) (Miss.2001) (citations omitted).

¶ 11. In this case, Hearn was undoubtedly possessed of specialized knowledge not available to Brown because of his years of experience in the business of commercial roofing, and Brown contended that this expertise obviated the need for him to warn Hearn of the danger associated with walking about on a roof — the very purpose for which Hearn was present on the property. Hathorn v. Hailey, 487 So.2d 1342, 1344 (Miss.1986). The trial court apparently agreed with this contention as the basis for granting a JNOV. On the other hand, it was Hearn’s theory of recovery that, even though he was on the premises as a business invitee specifically because of his specialized skills in regard to roofing, the property owner nevertheless had a duty to warn him of special or hidden dangers known to that property owner to exist. See Jackson Ready-Mix Concrete v. Sexton, 235 So.2d 267, 269-72 (Miss.1970).

¶ 12. In the ease before us, there was evidence in the form of testimony by Hearn that would support a reasonable inference that Brown was on actual notice of a portion of his roof that presented a particular hazard that went beyond the general danger associated with walking about on the roof of a house. This especially hazardous area was known to Brown because it had shown evidence of rotten wood. The evidence would further permit a reasonable inference that Hearn was not requested to go on the roof to deal with this particular hazard, but rather, that at the point he fell, he was simply helping remove the accumulated pine needles on the roof as an accommodation to Brown because of Brown’s previously-disclosed fear of heights. The particular danger that proximately led to Hearn’s injury was obscured by the pine needles but was known by Brown to exist as evidenced by his alleged eleventh-hour caution to Hearn that specifically mentioned the hazard of rotten wood but came too late to permit Hearn to avoid his injurious fall. Certainly, there was evidence tending to show both that Brown did not possess undisclosed knowledge of this particular hidden hazard and that his belated warnings to Hearn urging caution did not concern a rotten area on the roof but were simply manifestations of Brown’s own uneasiness in seeing Hearn so near the roofs edge. There was, in fact, evidence tending to show that, not only was Brown unaware of any such rotten area but that, in fact, no such rotten area existed, and that Hearn’s fall arose out of the fact that he lost his footing for no reason attributable to any fault on the part of Brown.

¶ 13. The jury resolved these disputed issues of fact in favor of Hearn. In such situations, the jury sits as finders of fact, and their findings are entitled to substantial deference. Booker ex rel. Certain Underwriters at Lloyd’s of London v. Pettey, 770 So.2d 39, 42(¶ 21) (Miss.2000). Though it presents a close question, upon a review .of the evidence in the required light that favors Hearn as the non-movant, and assuming that the jury drew all permissible inferences from that favorable evidence, we cannot say that a reasonable jury could only find for Brown under the law. For that reason, we find that the trial court erred in granting Brown’s motion for JNOV, and we vacate that part of the court’s post-verdict judgment.

III.

Conditional Order for New Trial

¶ 14. As we have previously observed, the trial court, in addition to granting a JNOV in favor of Brown, conditionally granted his motion for new trial. This conditional ruling by the trial court was in accord with its duties as prescribed in Mississippi Rule of Civil Procedure 50(c), which provides:

If the motion for judgment notwithstanding the verdict ... is granted, the court shall also rule on the motion for a new trial ... by determining whether it should be granted if the judgment [notwithstanding the verdict] is thereafter vacated or reversed....

M.R.C.P. 50(c).

¶ 15. Hearn, in addition to asking this Court to set aside the JNOV, seeks to have us determine that the trial court erred in this provisional ruling. The effect of doing so would be for this Court to reinstate the original jury verdict in Hearn’s favor in the amount of $100,000.

¶ 16. We find, however, that this Court lacks jurisdiction to reach this second issue on the merits. It is fundamental law in this State that an order for new trial in a civil action based upon any factor other than the excessiveness or inadequacy of the verdict amount is an interlocutory determination that is not the proper subject of an appeal as a matter of right. Bowman v. Rutledge, 369 So.2d 768, 769 (Miss.1979). In this case, the trial court conditionally ordered a new trial on the issue of liability, which plainly has nothing to do with issues relating to the size of the jury’s verdict. Once this Court determined that the circuit court erred in granting a JNOV, the conditional nature of the order for new trial on liability was removed, and it became the operative direction of the circuit court as to how the case would proceed at the trial level. Because of its interlocutory nature, that order is beyond the jurisdiction of this Court to consider.

¶ 17. The rule that an order granting a new trial motion is interlocutory in nature and not the proper subject of an appeal predates the adoption of our rules of civil procedure in 1981. We note that Rule 50(c) goes on to provide that “[i]n case the motion for a new trial has been conditionally granted and the judgment [notwithstanding the verdict] is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered.” M.R.C.P. 50(c) (emphasis added).

¶ 18. The issue then presents itself as to whether the phrase “unless the appellate court has otherwise ordered” has vested an appellate court with authority to review an otherwise interlocutory decision by the trial court in the limited situation where the new trial motion was preceded by the erroneous grant of a judgment notwithstanding the verdict. We conclude that this language has not altered the interlocutory nature of a decision by the trial court to grant a new trial motion based on its decision that the verdict as to liability is against the weight of the evidence. This proposition is supported by the Mississippi Supreme Court decision in Maxwell v. Illinois Central Gulf Railroad, 513 So.2d 901 (Miss.1987). That case, decided after the adoption of Rule 50, dealt with the situation identical to the one we face. The jury had awarded a plaintiffs verdict in a wrongful death claim arising out of a collision between a three-wheeler ridden by the decedent and a train operated by Illinois Central. Id. at 902. Despite the jury’s verdict, the trial court entered a JNOV in favor of the railroad and also conditionally granted the railroad’s new trial motion. Id. On appeal, the wrongful death beneficiaries succeeded in convincing the supreme court that the granting of the JNOV motion was reversible error. Id. at 907.

¶ 19. At that point, the supreme court took up the portion of the circuit court’s judgment conditionally granting a new trial. After noting that the standard for appellate review of the decision on a new trial request is “an abuse of discretion,” the court went on to say, “Here we do not reach that point [of determining whether there was such an abuse of discretion], for the granting of a new trial is not a final judgment and thus is ordinarily not ap-pealable. The order granting the Railroad this [new trial] stands undisturbed.” Id. at 908 (citations omitted).

¶ 20. The procedural aspects of this case cannot be distinguished from Max-toell. The order for a new trial, no longer conditional by virtue of the decision of this Court on the JNOV, necessarily stands beyond the jurisdiction of this Court to disturb at this juncture of the proceeding. We have no alternative but to remand for a new trial.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY GRANTING A JNOV IN FAVOR OF THE APPELLEE, HARLEY BROWN, JR., IS REVERSED AND THIS CAUSE IS REMANDED TO THE CIRCUIT COURT OF HINDS COUNTY FOR A NEW TRIAL PURSUANT TO THE CIRCUIT COURT’S CONDITIONAL ORDER, INTERLOCUTORY IN NATURE, GRANTING THE SAID HARLEY BROWN, JR. A NEW TRIAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN PART AND DISSENTS IN PART JOINED BY KING, P.J.

IRVING, J.,

CONCURRING IN PART AND DISSENTING IN PART.

¶ 22. A jury, after considering conflicting testimony regarding key issues, returned a- verdict for Eric Hearn in the amount of $100,000 for injuries he suffered when he fell off the roof at Harley Brown, Jr.’s home.. Following the conclusion of the trial, the trial court granted Brown’s motion for JNOV and conditionally granted Brown’s motion for a new trial on liability. The majority finds that the trial court erred in granting the JNOV and that this Court lacks jurisdiction to consider whether the trial court erred in ordering a new trial.

¶ 23. I agree with the majority that the trial court erred in granting the JNOV in this case. I further agree with the majority that the effect of our holding regarding the grant of the JNOV is to remove the condition for the grant of a new trial. Therefore, in my opinion, our holding brings to the forefront, for appellate consideration, the propriety of the grant of the motion for a new trial. The majority, citing a pre-rules decision regarding the interlocutory nature of an order for a new trial, finds that we lack jurisdiction to consider the new trial issue, notwithstanding the fact that we bring this issue to the surface by our resolution of the JNOV issue, both of which are intertwined in the singular order entered by the trial court which is the subject of this appeal. With generous respect, I must dissent from the majority’s holding that we lack jurisdiction to consider the appropriateness of the trial court’s grant of a new trial.

¶ 24. Traditionally, appellate review of new trial issues arises in the negative context of the failure of the trial court to grant a new trial rather than, as here, in the affirmative context of the granting of a new trial. In the former context, the inquiry on appeal is whether the trial court abused its discretion in not granting the new trial. No abuse of discretion is shown unless allowing the verdict to stand will permit an unconscionable injustice to occur. Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). However, there is no reason why the abuse of discretion standard of review should not apply to a trial judge’s action in granting a new trial in the face of a jury verdict. In both cases, the effect is to ignore the determination made by the initial jury. I would find that the trial judge abused his discretion in granting a new trial in the face of the jury verdict.

¶ 25. The majority finds that Maxwell v. Illinois Gulf Railroad, 513 So.2d 901 (Miss.1987), is controlling here. I disagree.

¶ 26. In my opinion, the conditional grant of a new trial under Rule 50(c)(1) of the Mississippi Rules of Civil Procedure is a final judgment for purposes of appeal. The rule is clearly didactic on this point:

If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for a new trial has been conditionally granted and the judgment reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered.

M.R.C.P. 50(c)(1) (emphasis added).

¶ 27. I believe the majority’s reliance on Maxwell is misplaced. While Maxwell is factually similar to our case, I believe it is distinguishable because it is in direct conflict with the options granted by Rule 50(c)(1), and subsection (c) of the rule was not even discussed in the case. Since there was an absence of discussion of subsection (c), I cannot see how it can be concluded that Maxwell vitiates the clear parameters which subsection (c) sets for appellate inquiry.

¶ 28. I note that the majority does not attempt to explain what the phrase “unless the appellate court has otherwise ordered” means. It simply leapfrogs over this hurdle and concludes, without citing any specific authority, that the phrase is not intended to change prior judicial pronouncements that an order for a new trial is not a final appealable order. The problem with the majority’s reasoning is that the appeal, notwithstanding the grant of the new trial, is permitted by virtue of the grant of the JNOV. Therefore, appellate jurisdiction is not attendant on the singular motion for a new trial. We have jurisdiction as a result of the judgment granting the JNOV. Nothing in the rule says that jurisdiction must be relinquished when review of the JNOV has been completed. For sure, Maxwell, at first blush, appears to be a problem. However, I do not believe that the majority is warranted in reading into Maxwell a construction of subsection (c) of Rule 50 when the specific subsection is not even mentioned in the case. The omission of such a discussion may have been an oversight on the part of the Maxwell court or it might have been an inadvertent and unconscious adherence to pre-rules law. I believe if our supreme court were squarely faced with a construction of subsection (c), .it would construe it consistent with this separate writing.

¶ 29. To piecemeal the judicial review process in the way advocated by the majority is to ensure a waste of judicial economy. This is especially true since we have a complete and fully developed record. Why should we be precluded from looking to see whether allowing this verdict to stand would sanction an unconscionable injustice? Under the majority’s interpretation of Rule 50(c), some absurd consequences could occur. For example, suppose a trial judge who, for whatever reason, wanted a certain party to win. He could grant a JNOV and a conditional new trial every time the jury returned a verdict that he did not like. Would the litigant victim of such unscrupulous tactics be without judicial recourse on appeal?

¶ 30. I believe there is good and sufficient evidence to support the verdict in this case. Both Hearn and Brown told their respective stories to the jury. The jury apparently sided with Hearn. Allowing the jury’s verdict to stand, on the disputed facts of this case, will not sanction an unconscionable injustice. Therefore, I find that the trial judge abused his discretion in taking away the jury’s verdict by granting a new trial. For the reasons presented, I respectfully dissent from that portion of the majority’s opinion which remands this case for a new trial. I would reverse the trial court on both the grant of the JNOY and the grant of a new trial and reinstate the jury’s verdict.

KING, P.J., JOINS THIS SEPARATE WRITTEN OPINION.


text:
    Michael J. JOHNSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00143-COA.
    Court of Appeals of Mississippi.
    Oct. 14, 2003.
    Rehearing Denied Jan. 6, 2004.
    Certiorari Denied July 2, 2004.

      Michael J. Johnson, (Pro Se).
    Dan W. Duggan, Brandon, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before McMILLIN, C.J., MYERS and GRIFFIS, JJ.
   MYERS, J.,

for the Court.

¶ 1. Michael Johnson was tried in November 2000 for the murder of Dustin Sean Parker. A jury returned a guilty verdict and the Circuit Court of Rankin County sentenced Johnson to life in the custody of the Mississippi Department of Corrections. Johnson now appeals, asserting the following nine issues:

I. WHETHER JOHNSON’S TRIAL COUNSEL WAS INEFFECTIVE FOR NOT FILING A MOTION FOR A NEW TRIAL OR JNOV.
II. WHETHER JOHNSON’S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO A NUMBER OF LEADING AND HEARSAY QUESTIONS BY THE STATE, AS WELL AS IMPROPER BAD ACT TESTIMONY.
III. WHETHER JOHNSON’S TRIAL COUNSEL WAS INEFFECTIVE FOR NOT ATTEMPTING TO SUPPRESS SEVERAL OF JOHNSON’S STATEMENTS TO THE POLICE.
IV. WHETHER JOHNSON’S TRIAL COUNSEL WAS INEFFECTIVE FOR PERMITTING THE STATE TO INTRODUCE EXHIBIT FIVE INSTEAD OF MERELY MARKING IT FOR IDENTIFICATION.
V. WHETHER JOHNSON’S TRIAL COUNSEL WAS INEFFECTIVE FOR NOT OBJECTING TO THE INTRODUCTION OF AUTOPSY PHOTOGRAPHS.
VI. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT GRANTING JURY INSTRUCTIONS D-l AND D-2 AND NOT GRANTING A CAUTIONARY INSTRUCTION.
VII. WHETHER JOHNSON’S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO RETRIEVE AND/OR DISCLOSE THE LOCATION OF THE MURDER WEAPON AFTER BEING TOLD OF ITS LOCATION.
VIII. WHETHER THE PROSECUTOR COMMITTED ERROR BY VOUCHING FOR THE CREDIBILITY OF THE STATE’S KEY WITNESS.
IX. WHETHER THE PROSECUTOR DENIED JOHNSON A FAIR TRIAL BY FAILING TO ADVISE THE TRIAL COURT OF JOHNSON’S INCOMPETENCE.

Facts and Procedural History

¶ 2. On the evening of February 8, 1998, Michael Johnson (Johnson) and Aaron Johnson (Aaron) planned to kill Aaron’s roommate, Dustin Sean Parker. They struck Parker on the head several times and Johnson choked Parker with his hands. They then wrapped Parker in bags and buried him in the woods. After returning home and cleaning up the crime scene, they made up their own stories of what happened to Parker.

¶ 3. Sometime later, Aaron wrote three checks on Parker’s account. The police questioned him, and he admitted to the killing, claiming that it was self-defense and that Johnson was only an accessory after the fact.

¶ 4. Over the next year, Johnson bragged to several people of how he had killed Parker and disposed of the body. These people thought he was joking until the body was found exactly where Johnson had described it. At trial, Johnson admitted to participating in all of the above acts except the actual killing of Parker.

¶ 5. After a two-day trial, Johnson was found guilty of murder and the circuit court sentenced him to life in the custody of the Mississippi Department of Corrections. His trial counsel did not file a motion for a new trial or for a JNOV. After several requests for a new lawyer to pursue his appeal, the Rankin County Circuit Court granted Johnson an out-of-time appeal on May 15, 2001, and assigned him a new lawyer for this appeal on July 31 of that year. On January 24, 2002, the trial judge signed an order appointing Johnson’s current counsel, authorizing an out-of-time appeal, and ordering the court reporter to prepare a transcript. The case then came before us.

Legal Analysis

I. WHETHER JOHNSON’S TRIAL COUNSEL WAS INEFFECTIVE FOR NOT FILING A MOTION FOR A NEW TRIAL OR JNOV.

II. WHETHER JOHNSON’S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO A NUMBER OF LEADING AND HEARSAY QUESTIONS BY THE STATE, AS WELL AS IMPROPER BAD ACT TESTIMONY.

III. WHETHER JOHNSON’S TRIAL COUNSEL WAS INEFFECTIVE FOR NOT ATTEMPTING TO SUPPRESS SEVERAL OF JOHNSON’S STATEMENTS TO THE POLICE.

IV. WHETHER JOHNSON’S TRIAL COUNSEL WAS INEFFECTIVE FOR PERMITTING THE STATE TO INTRODUCE EXHIBIT FIVE INSTEAD OF MERELY MARKING IT FOR IDENTIFICATION.

V. WHETHER JOHNSON’S TRIAL COUNSEL WAS INEFFECTIVE FOR NOT OBJECTING TO THE INTRODUCTION OF AUTOPSY PHOTOGRAPHS.

VI. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT GRANTING JURY INSTRUCTIONS D-l AND D-2 AND NOT GRANTING A CAUTIONARY INSTRUCTION.

VII. WHETHER JOHNSON’S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO RETRIEVE AND/OR DISCLOSE THE LOCATION OF THE MURDER WEAPON AFTER BEING TOLD OF ITS LOCATION.

VIII. WHETHER THE PROSECUTOR ENGAGED IN MISCONDUCT BY FAILING TO RESOLVE THE ISSUE OF JOHNSON’S INCOMPETENCE.

IX. WHETHER THE PROSECUTOR ENGAGED IN MISCONDUCT BY VOUCHING FOR THE CREDIBILITY OF THE STATE’S KEY WITNESS IN CLOSING ARGUMENTS

¶ 6. Since the first seven issues all deal with ineffective assistance of counsel, we will consider them together. We find the standard of review for such a claim in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The test to be applied is (1) whether counsel’s overall performance was deficient and (2) whether or not the deficient performance, if any, prejudiced the defense. The defendant has the burden of proving both prongs. The adequacy of counsel’s performance, as to its deficiency and prejudicial effect, should be measured by a “totality of the circumstances.” However, there is a strong, yet rebuttable, presumption that the actions by the defense counsel were reasonable and strategic. In short, defense counsel is presumed competent.

McDonald v. State, 847 So.2d 281, 283(¶ 4) (Miss.Ct.App.2003) (citing Ratliff v. State, 752 So.2d 416, 419(¶ 6) (Miss.Ct.App.1999)).

Failure to make Post-trial Motions

¶7. We first turn to whether the trial counsel rendered ineffective assistance to Johnson’s defense by failing to make a motion for a new trial or a motion for a JNOV. In fact, the record is devoid of any post-trial motions except those done by Johnson on a pro se basis.

¶ 8. In Holland v. State, 656 So.2d 1192 (Miss.1995), the supreme court dealt with ineffective assistance of counsel in a drug conviction. Holland’s lawyer at trial failed to make any post-trial motions, move for a directed verdict, or even ask for a peremptory instruction. Id. at 1197. On appeal, the supreme court found that the lawyer’s performance did amount to ineffective assistance of counsel. While the Holland court did not specify which, if any, of the three acts Holland’s lawyer omitted was most serious, it did explain that the omissions “deprived the trial judge of the opportunity to review the evidence and reexamine possible errors at trial. Specifically, it prevented the trial judge from reconsidering whether the evidence was sufficient to support the charge....” Id. at 1197-98. This, coupled with the trial strategy of admitting guilt of possession, but arguing that the evidence was insufficient to prove intent to distribute, amounted to ineffective assistance of counsel. Id. at 98.

¶ 9. In the case before us today, Johnson’s strategy was similar. At trial, it was admitted that he was an accessory after the fact. He did help hide the body and helped clean up the crime scene. However, it was argued, that Aaron, and not Johnson committed the murder. By failing to make a post-trial motion, the trial judge was not provided an opportunity to reconsider whether the evidence was sufficient to support the charge of murder. Therefore, Johnson’s trial counsel’s performance was deficient under the first prong of the Strickland test.

¶ 10. Johnson, in his brief to this Court, does not point to any facts in the record or make a persuasive argument that, had trial counsel made the appropriate post-trial motion, there was a substantial likelihood of a different outcome, i.e., that his motion would have been granted. Johnson, as the appellant, has the burden of persuasion on this point and his failure to offer any basis for us to conclude that such post-trial motions had any probability of success must be seen as fatal to this claim.

Failure to Make Objections

¶ 11. It is well settled that failure to make certain objections cannot give rise to an ineffective assistance of counsel claim. McGiiberry v. State, 843 So.2d 21, 31(¶ 26) (Miss.2003); Woodson v. State, 845 So.2d 740, 742(¶ 8) (Miss.Ct.App.2003). We therefore find no merit in this argument.

Failure to Suppress Statements

¶ 12. Johnson next argues that his trial counsel allowed the State to use statements he made to the police against him, and failed to attempt to suppress those statements. Johnson made these statements voluntarily and law enforcement gave him the Miranda warning before he gave the statements. At first, Johnson claimed Parker had assaulted Aaron and Johnson came to Aaron’s defense. Johnson then tried to blame his deceased father for Parker’s death. After this story, Johnson again claimed he was defending Aaron from Parker. The interrogating officer confronted Johnson with the inconsistent physical evidence, and Johnson then confessed to the unprovoked murder of Parker.

¶ 13. Johnson’s argument that these statements should have been suppressed is similar to the argument advanced in Sanders v. State, 825 So.2d 53, 58(¶ 9) (Miss.Ct.App.2002). In Sanders, the defendant gave a voluntary statement to the police that was used against him in trial. Just as in Sanders, Johnson’s statement was given voluntarily. Also, Johnson makes no argument of why this statement was inappropriate, other than it was used against him in trial. If that were our standard, then no defendant’s statement could ever be used against him. The decision of whether or not to attempt to suppress this statement falls within the realm of trial strategy, and is not an example of ineffective counsel. Id. Even had trial counsel been in error for not attempting to suppress the statement, there was enough physical evidence and testimony given against Johnson for this possible failure to not have prejudiced his defense.

¶ 14. In this section of his brief, Johnson also makes an argument concerning jury instructions. Since this was not distinctly identified in his statement of issues, we will not consider this argument. M.R.A.P. 28(a)(3).

The Admission of State’s Exhibit 5

¶ 15. Johnson’s next issue deals with whether it was proper for a lead pipe, similar to the murder weapon to be introduced into evidence. Johnson argues that his trial counsel was ineffective for not objecting to it being introduced.

¶ 16. Deputy Greg Eklund of the Rankin County Sheriffs Department testified that Johnson admitted to using a pipe used as a clothes rod in a closet to beat Parker to death. This rod was recovered by Deputy Eklund and marked for identification with his initials and the date. The rod was sent to the crime lab and examined for forensic evidence. None was found, and this would be consistent with Aaron’s statement that they had thoroughly cleaned the rod.

¶ 17. The State moved to introduce the pipe, and Johnson’s trial counsel stated:

Your Honor, we have no objection to the pipe being introduced into evidence as a pipe, but not as the murder weapon as such. It may be proven to be the murder weapon later on, of course, but we don’t mind introducing it as a pipe, not as the murder weapon.

¶ 18. A bench conference was immediately held, at which the following was said:

The Court: [Ejither it goes in for I.D., [or into evidence.] Which do you want?
The State: It can go in as what was gathered as evidence at that home. Now, if he wants to say it has no value and it didn’t do anything, that’s fine.

¶ 19. The trial court again asked trial counsel whether he had any objection to the pipe entering evidence, and he replied that he did not.

¶ 20. The proper predicate was laid for this pipe to be entered into evidence. Ek-lund testified to what it was, where it came from, when it was obtained, and how he was able to identify it. As the State said in the bench conference, it was then up to the defense to attempt to discredit the evidence, which it did. The defense questioned Eklund on whether any physical or forensic evidence linked the pipe to the murder. There is no merit to the contention that trial counsel was ineffective as it concerns this exhibit.

Failure to Object to Autopsy Photos

¶ 21. Johnson’s next allegation of ineffective assistance of counsel has to do with his trial counsel’s decision to not object to the admission of photographs taken at the autopsy. Specifically, three photographs of Parker’s skull—two of the left side and one photograph taken from above. The decision to admit photographs rests soundly within the discretion of the trial judge. Jackson v. State, 672 So.2d 468, 485 (Miss.1996). The decision to admit photographs will be reversed only when it is found to be an abuse of discretion. Id. In this case, the photographs are not particularly gruesome. While some soft tissue appears visible in the photographs, it is in an almost mummified condition due to where the corpse was buried. There was no blood or gore in the photographs. These photographs have probative value in that they give the jury a better idea of the size of the wound and the force required to cause such a wound. As such, their probative value outweigh any prejudicial effect they may have. Id.; Marks v. State, 532 So.2d 976, 981 (Miss.1988). See M.R.E. 403. Failing to object to these photographs was therefore not ineffective assistance of counsel.

VI. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT GRANTING JURY INSTRUCTIONS D-l AND D-2 AND NOT GRANTING A CAUTIONARY INSTRUCTION.

¶ 22. Proposed jury instructions D-l and D-2 were instructions on manslaughter and accessory after the fact. The trial judge refused the instructions since they were not in “proper form.” Instruction D-1 read, “The court instructs the jury that if in your opinion, the credible evidence does not rise to the level of murder under the law, then you may find him guilty of manslaughter instead of murder. Manslaughter is a lesser included offense to the crime of murder.” Instruction D-2 read, “The court instructs the jury that a lesser included offense in this case is accessory after the fact.”

¶ 23. Where the evidence entitles a party to have a jury instruction on a particular issue, and an instruction is proffered but refused, the trial judge has a duty to either reform that instruction or to allow counsel the opportunity to correct the instruction’s deficiencies. Harper v. State, 478 So.2d 1017, 1018 (Miss.1985). Since no attempt at reforming these instructions was made, we must look to see whether the evidence warranted the instruction.

¶ 24. Manslaughter is defined as “[t]he killing of a human being, without malice, 'in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense.... ” Miss.Code Ann. § 97-3-35 (Rev.2000). The evidence presented indicated that Michael Johnson and Aaron Johnson talked about killing Parker. This conversation took place about four to six hours before the murder actually occurred. They discussed the time and method of the murder, and carried it out just as it was discussed. Other testimony, namely that of Michael Johnson, indicated that no discussion took place, and the murder occurred while he was not at the Parker/Johnson residence. Either way, a manslaughter instruction was not warranted. Either the jury believed that Michael Johnson and Aaron Johnson planned the murder, or they believed that Michael played no part in killing Parker. There was no error in denying instruction D-l.

¶ 25. A jury instruction must not only be warranted by the evidence, it must also correctly state the law. Munford v. Fleming, 597 So.2d 1282, 1286 (Miss.1992). Instruction D-2 incorrectly states that accessory after the fact is a lesser-included offense of murder. Accessory after the fact is a separate crime. Miss.Code Ann. § 97-1-5 (Rev.2000). Additionally, we find that no reasonable juror could find that Michael Johnson did not commit the murder. This is especially true considering he admitted to doing so to the police and bragged about it to other witnesses.

¶ 26. Johnson also now argues that he should have been granted a cautionary instruction regarding the testimony of Aaron Johnson. A cautionary instruction is required where the State’s evidence rests solely on an accomplice’s testimony. Montgomery v. State, 830 So.2d 1269, 1272(¶ 9) (Miss.Ct.App.2002). That was not true here. Other witnesses testified that Johnson had bragged about the murder. Again, Johnson also admitted to this during police interrogation. We find no error in this issue.

VII.WHETHER JOHNSON’S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO RETRIEVE AND/OR DISCLOSE THE LOCATION OF THE MURDER WEAPON AFTER BEING TOLD OF ITS LOCATION.

¶ 27. In his pro se brief, Johnson argues that he told his trial counsel of the location of the murder weapon, but counsel made no effort to retrieve it. He has only his allegations as the factual basis of this claim. Police searched the location where they were told they could find the murder weapon and it was never located. Johnson’s counsel brought up this point on cross examination. There is no basis for an ineffective assistance of counsel claim.

VIII. WHETHER THE PROSECUTOR ENGAGED IN MISCONDUCT BY FAILING TO RESOLVE THE ISSUE OF JOHNSON’S INCOMPETENCE.

¶ 28. Johnson claims that by saying during his testimony that he was taking medication to help him sleep, the prosecutor was placed on notice of his mental incompetence. We find no merit in this issue since Johnson does not make any showing that any medication he was taking actually rendered him incompetent to assist his own defense. Brown v. State, 798 So.2d 481, 505(¶ 61) (Miss.2001).

IX. WHETHER THE PROSECUTOR ENGAGED IN MISCONDUCT BY VOUCHING FOR THE CREDIBILITY OF THE STATE’S KEY WITNESS IN CLOSING ARGUMENTS

¶ 29. Johnson argues that he suffered prejudice by the prosecutor’s vouching for the State’s key witness, Aaron Johnson, during closing arguments. We find this issue is procedurally barred. Any objections to closing arguments must be made at trial or they are procedurally barred. Bozeman v. State, 836 So.2d 788, 791(¶ 11) (Miss.Ct.App.2002).

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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


author: SOUTHWICK, P.J.,

text:
    Dr. Patricia BLACK, Appellant, v. Dr. S.L. ANSAH, Individually and In His Official Capacity as Interim Director of the Department of Education at Mississippi Valley State University; Billy C. Hawkins, Individually and In His Official Capacity as Assistant Vice President and Provost of Mississippi Valley State University; Dr. Lester C. Newman, Individually and In His Official Capacity as President and Chief Executive Officer of Mississippi Valley State University; Mississippi Valley State University, Dr. Thomas D. Layzell, In His Official Capacity as Commissioner of The Board of Trustees of State Institutions of Higher Learning; and Thomas W. Colbert, William S. Crawford, Ricki Garrett, J. Roy Klumb, Dr. D.E. Magee, Jr., Virginia Shanteau Newton, Dr. L. Stacy Davidson, Jr., Bryce Griffis, Dr. Bettye H. Neely, Scott Ross, Amy D. Whitten and Carl Nicholson, Jr., In Their Official Capacities as Members of the Board of Trustees of State Institutions of Higher Learning, Appellees.
    No. 2001-CA-01909-COA.
    Court of Appeals of Mississippi.
    Oct. 14, 2003.
    Certiorari Denied July 1, 2004.

      Dennis L. Horn; Shirley Payne, Jackson, attorneys for appellant.
    J. Cal Mayo, Oxford, attorney for appel-lees.
   MODIFIED OPINION ON MOTION FOR REHEARING

SOUTHWICK, P.J.,

for the Court.

¶ 1. Mississippi Valley State University notified Dr. Patricia Black that her contract would not be renewed. She filed a lawsuit against the University and against several individuals, including members of the Board of Trustees of State Institutions of Higher Learning. She claimed tortious discharge and tortious interference with her employment contract.

¶ 2. The University moved to dismiss Dr. Black’s suit. After a hearing, the court dismissed, holding that the Mississippi Tort Claims Act’s one-year limitation period barred the claims.

¶ 3. On appeal, Dr. Black alleges that the wrong statute of limitations was applied, that her claim accrued a year later than the date determined by the court, and that she was not required to exhaust her administrative remedies. We agree that there was no requirement to seek administrative redress, but we also find that the statute of limitations did bar this suit. Therefore, we affirm.

FACTS

¶ 4. Mississippi Valley State University, a state-supported institution, hired Patricia Black in 1997 as an assistant professor of education. She also served as director of the Department of Field Experiences, the school’s student-teaching program. Dr. S.L. Ansah, acting chair of the University’s education department, sent Dr. Black a memorandum dated May, 28, 1999, stating that he was recommending that the University remove her as director of field experiences. The University accepted this recommendation. As of June 1, 1999, Dr. Black no longer served as director.

¶ 5. At about the same time, the University decided not to renew Dr. Black’s employment contract. A letter dated May 28, 1999, was sent to Dr. Black informing her of the University’s decision and that her employment would end on May 11, 2000 upon the completion of the following spring semester. Dr. Black’s final contract, which she signed in August 1999, contained the language that “no further employment would be offered.” In May 2000, at the conclusion of the spring semester, Dr. Black’s employment did in fact end.

¶ 6. The University has administrative remedies available to faculty members aggrieved by employment decisions. Dr. Black did not utilize these procedures.

ANALYSIS

1. Proper statute of limitations

¶ 7. Dr. Black argues that the general three-year statute of limitations applies. Miss.Code Ann. § 15-1-49 (Rev. 2003). The trial court held that the Mississippi Tort Claims Act’s one-year limitations period was controlling. Miss.Code Ann. § 11-46-11(3) (Rev.2002).

¶ 8. To determine whether the trial court’s decision was correct, we begin with a case cited by Dr. Black, Paracelsus Health Care Corp. v. Willard, 754 So.2d 437 (Miss.1999). That opinion does not address the issue in the present appeal, which is whether a claim against a governmental entity for damages based upon alleged tortious breach of a contract is the sort of claim covered by the Tort Claims Act. Paracelsus was not a suit against the State or one of its political subdivisions.

¶ 9. A more apt opinion is one from this Court, City of Grenada v. Whitten Aviation, Inc., 755 So.2d 1208 (Miss.Ct.App.1999). We held that the Tort Claims Act does not apply to “pure contract actions,” reasoning that when the State enters a contract, it waives immunity from suits brought to enforce the contract. Whitten Aviation, 755 So.2d at 1213(¶ 12). But we also held that the Tort Claims Act applies to claims for tortious breach of contract:

The clear intent of the legislature in enacting [the Tort Claims Act] was to immunize the State and its political subdivisions from any tortious conduct, including tortious breach of ... contract.

Id.

¶ 10. Relying on Whitten Aviation, we conclude that the Tort Claims Act applies to Dr. Black’s attempt to recover tort damages. Dr. Black only had a series of one-year contracts. There is no claimed breach of any one-year contract that the University entered with her. The alleged wrongful conduct by the defendants was the tortious failure to give her a new contract.

¶ 11. In regards to the tortious interference, Dr. Black’s complaint alleges that the defendants “intended ... to interfere with Black’s continuing right to contract” with the University, and that they “maliciously interfered with Black’s valid and enforceable contract and prospective business advantage causing non-renewal of said contract and resulting in injury to Black.”

¶ 12. The duty not to interfere with formation of a contract or another’s right to pursue a lawful business, calling, trade, or occupation arises in tort, not contract. See Bailey v. Richards, 236 Miss. 523, 111 So.2d 402 (1959). The tort prohibits interference with business relations that are not the subject of a contract as well as prospective contractual relationships and existing contracts. Hubbard Chevrolet Co. v. Gen. Motors Corp., 682 F.Supp. 873, 877 (S.D.Miss.1987). Unlike the tort of retaliatory discharge discussed in Paracelsus, the breach of an underlying contract is not a necessary prerequisite or element for pursuing a tortious interference claim. See Martin v. Mem’l Hosp. at Gulfport, 130 F.3d 1143, 1151 (5th Cir.1997) (describing elements of tort under Mississippi law). Since Dr. Black’s claim of tortious interference is a tort claim and not a contract claim, she may only pursue that claim against the State using the Tort Claims Act.

¶ 13. This is true because the Tort Claims Act’s remedy “is exclusive of any other civil action or civil proceeding by reason of the same subject matter against the governmental entity ... for the act or omission which gave rise to the claim or suit.” Miss.Code Ann. § 11-46-7(1) (Rev. 2002). If the Tort Claims Act provides a remedy for an injury caused by official acts or misconduct, then the Tort Claims Act is the exclusive remedy for all claims that may be asserted based upon that misconduct. See City of Jackson v. Sutton, 797 So.2d 977, 980 (¶ 9) (Miss.2001).

2. Accrual of cause of action.

¶ 14. Dr. Black argues that she timely filed her claim even under the Mississippi Tort Claims Act because her claim did not “accrue” and the limitations period did not begin to run until the last date of her employment on May 11, 2000. She received notice of the supposed tortious conduct much earlier than May 2000, but the question is when she first became able to sue on her claim.

¶ 15. There are various descriptions for when a tort cause of action accrues. It has been stated that “the cause of action accrues and the limitations period begins to run when the plaintiff can reasonably be held to have knowledge of the injury or disease.” Owens-Illinois v. Edwards, 573 So.2d 704, 709 (Miss.1990). In addition, “a cause of action accrues only when it comes into existence as an enforceable claim; that is, when the right to sue becomes vested. A cause of action must exist and be complete before an action can be commenced, and, when a suit is begun before the cause of action accrues, it will generally be dismissed if proper objection is made.” Id. at 706-07.

¶ 16. A useful summary of these rules appears in a recent treatise:

the statute of limitation begins to run when a complete cause or right of action accrues, and only at such time. The statute of limitation does not begin to run until there are in being a person capable of suing and a different person capable of being sued.

Gerald Gaggini, Mississippi Limitations of Actions § 2.05 (MLI Press 2000) (footnotes omitted). The statute of limitation cannot be running if a potential plaintiff is not yet legally entitled to bring a claim. We need then to determine when Dr. Black could first have filed suit.

¶ 17. According to Dr. Black’s complaint, the University tortiously interfered with her contract with its decision not to renew it. Since it is undisputed that the University notified Dr. Black of its employment decision by letter dated May 28, 1999, if that decision arose from tortious interference or other misconduct, then those acts must have occurred by May 28, 1999. That date is almost two years before Dr. Black filed her suit. Her employment, though, had not yet ended. Had Dr. Black brought suit shortly after receiving the notice, would it have been premature?

¶ 18. To answer this question, we start with determining if the May 1999 notice should be seen under Dr. Black’s version of events as notice of a fully completed tort. If it was, then the fact that the harm would not be suffered for another year would not prevent all the elements of the tort, including the amount of damages, from being known. Before there can be a cause of action for a tort, there must be both the tortious conduct and an injury. McMillan v. Puckett, 678 So.2d 652, 654 (Miss.1996).

¶ 19. Since Dr. Black was told enough in May 1999 to know that she would no longer be employed a year later, and since her injury was therefore known even if prospective, did she have a cause of action at that time? We find no reason to conclude that a person with known and measurable harm that awaits solely the passage of time to inflict itself, may not sue because of that futurity until the time has passed. Were this a breach of contract suit instead of a tort action, such early notice of a contracting party’s refusal to perform would be called an anticipatory breach. A cause of action for that breach occurs when the notice was received, “regardless of the time when the damages from the breach occurred.” Johnson v. Crisler, 156 Miss. 266, 125 So. 724 (1930), still recognized as controlling in Young v. S. Farm Bureau Life Ins. Co., 592 So.2d 103, 107 (Miss.1991). We find such reasoning equally applicable to this tort suit.

¶ 20. One reason for determining that no cause of action yet existed for Dr. Black after receiving the May 1999 notice would be if the passage of time was in fact not the only remaining consideration. However, there is no evidence that the notice was taken to be anything other than conclusive. Indeed, the grievance procedure that might have overturned the decision was not pursued. Dr. Black was not seeking reinstatement but only damages. Her injury has occurred.

¶ 21. Another possible reason for deciding that no cause of action yet existed in May 1999 is if Dr. Black neither knew nor should she have known at that time of the allegedly tortious conduct by one or more defendants. The tort does not rely simply on the refusal to present a new contract. It requires improper interference with the contract. Dr. Black has asserted in this case that in the spring of 1999, shortly before she was refused a new contract, she had reported “criminal misconduct of one of her ... student teachers,” the conduct being the displaying of a gun on the high school campus where the student was teaching. She alleges that immediately thereafter, she became subject to retaliation. Included were false accusations against her, harassment by a co-worker, and within a month or two of her reporting the conduct, the May 1999 notification that her contract would not be renewed. At no time in these proceedings, has she alleged that she failed to realize the connection that she presently claims between her “whistle-blowing” and the refusal to give her a new contract. Therefore, Dr. Black knew of her claim when or soon after she received the May 1999 notice.

¶ 22. We also should examine whether a 1999 amendment to the Mississippi Tort Claims Act affects any of these conclusions. One section provides that a claimant must give notice to the governmental entity ninety days prior to bringing suit. Miss.Code Ann. § 11-46-11(1) (Rev. 2002). Another section states that the statute of limitation is briefly tolled after the notice is given:

A notice of claim is required and that the filing of said notice shall serve to toll the statute of limitations for a period of ninety-five (95) days from the date the chief executive officer of the state agency receives the notice of claim, ... during which time no action may be maintained by the claimant unless the claimant has received a notice of denial of claim. After the tolling period has expired, the claimant shall then have an additional ninety (90) days to file any action against the governmental entity served with proper claim notice. However, should the governmental entity deny any such claim, then the additional ninety (90) days during which the claimant may file an action shall begin to run upon the claimant’s receipt of notice of denial of claim from the governmental entity.

Roberts v. New Albany Separate Sch. Dist., 813 So.2d 729, 731(¶5) (Miss.2002), summarizing Miss.Code Ann. § 11-46-11(3) (Rev.2002).

¶ 23. Applying this rule to the present case, Dr. Black filed two notice letters, one on April 6, 2001, and another on May 8, 2001. Since we have held that any tortious misconduct causing Dr. Black’s injury must have occurred by May 28, 1999, the two notices were well beyond the one-year time limit. Therefore, the trial court correctly ruled that Dr. Black did not bring her suit within one year of any “actionable conduct,” and her claims are time-barred.

S. Exhaustion of Administrative Remedies

¶ 24. The University argues that Dr. Black was required to exhaust the school’s administrative remedies prior to bringing suit. However, exhaustion of remedies for a university employee is only necessary when reinstatement to employment is being sought. Bd. of Trustees of State Inst. of Higher Learning v. Brewer, 732 So.2d 934, 936 (Miss.1999). Dr. Black has sought only damages. She could proceed without pursuing administrative remedies.

¶ 25. This conclusion does not invalidate the lower court’s dismissal. Since we have found the claims were not timely brought under the Mississippi Tort Claims Act, dismissal was proper regardless of whether Dr. Black pursued her administrative remedies.

¶ 26. THE JUDGMENT OF THE LE-FLORE COUNTY CIRCUIT COURT IS AFFIRMED. COSTS ARE HEREBY ASSESSED TO THE APPELLANT.

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

      . We deny the motion for rehearing, withdraw the original opinion, and substitute this one.


author: LEE, J., KING, P.J.,

text:
    Morris FORREST a/k/a Bookie a/k/a Booke, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00683-COA.
    Court of Appeals of Mississippi.
    Oct. 14, 2003.
    Rehearing Denied Jan. 20, 2004.

      Leslie Jones Martin, Natchez, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On April 17, 2002, Morris Forrest was convicted of the sale of a controlled substance, cocaine, by a jury in the Montgomery County Circuit Court. Forrest was charged and convicted as a second or subsequent offender under the sentence enhancement provisions of Mississippi Code Annotated Section 41-29-147 (Rev. 2001), and received twenty-five years to be served in the custody of the Mississippi Department of Corrections. Forrest now appeals to this Court asserting the following issues: (1) the lower court erred in failing to enforce rules established by Bat-son v. Kentucky by allowing the State to use all of its peremptory challenges on prospective black jurors; (2) the lower court erred in allowing the State to introduce evidence of crimes not charged against him; (3) the lower court erred in allowing the testimony of two eyewitnesses when their credibility was sufficiently impeached and when their testimony provided the only basis for the jury’s conviction.

FACTS

¶ 2. Forrest was the subject of a controlled buy operation. On May 23, 2001, Forrest picked up Dorris Faye Banks at a store in Winona. They proceeded to the Hitching Post Motel, where they drove to the rear of the building. Steven Solomon, the undercover agent in charge of the controlled buy operation, and Chris Blaylock, the confidential informant, drove in and parked next to Forrest’s car. Blaylock left the ear, walked over to the driver’s side of Forrest’s car, introduced Solomon to Forrest and Banks, and then asked Forrest if “he had the stuff.” Forrest was seen counting out the “stuff’ and pouring it into his own hands. After receiving the cocaine from Forrest, Banks then got out of Forrest’s car and handed Solomon fifteen rocks of crack cocaine. Solomon gave Banks $300, which she proceeded to give to Forrest. This transaction was recorded on audiotape and played for the jury.

DISCUSSION OF ISSUES

I. DID A BATSON VIOLATION OCCUR IN ALLOWING THE STATE TO USE ALL OF ITS PEREMPTORY CHALLENGES ON BLACK PROSPECTIVE JURORS?

¶ 3. With his first issue, Forrest, who is a black male, claims that the State used all four of its peremptory challenges to exclude prospective black jurors. Forrest also contends that the race-neutral reasons supplied by the State for excusing these four black jurors was inadequate and no outside proof was offered to substantiate its reasons. Our standard of review requires a reversal only if the factual findings of the trial judge are “dearly erroneous or against the overwhelming weight of the evidence.” Tanner v. State, 764 So.2d 385 (¶ 14) (Miss.2000). Any determination made by a trial judge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), is accorded great deference because it is “based, in a large part, on credibility.” Coleman v. State, 697 So.2d 777, 785 (Miss.1997). The term “great deference” has been defined in the Batson context as meaning an insulation from appellate reversal of any trial findings which are not clearly erroneous. Lockett v. State, 517 So.2d 1346, 1349 (Miss.1987).

¶ 4. The Batson decision provides procedural directives for the trial court to follow in detecting and disallowing the practice of using peremptory challenges to remove members of an identified racial group from jury service based upon nothing more than their racial identification. To successfully assert a Batson claim, the following procedure must occur:

First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.

Berry v. State, 728 So.2d 568 (¶ 11) (Miss.1999) (citing Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). “When the prosecution gives race-neutral reasons for its peremptory strikes, the sufficiency of the defendant’s prima facie case becomes moot.” Manning v. State, 735 So.2d 323 (¶ 28) (Miss.1999). Furthermore, if the defendant offers no rebuttal, the trial court may base its decision solely on those reasons given by the prosecution. Id. at (¶ 29).

¶ 5. As is the proper procedure, Forrest objected to the State’s exercising its peremptory challenges against prospective black jurors. The judge noted that all of the State’s strikes were against black females and ruled that Forrest had made a prima facie case. The prosecution then proceeded with its raeially-neutral reasons for doing so as required by Batson.

¶ 6. The prosecution’s first peremptory challenge was exercised against juror number four, Gina Bays. The prosecution stated that when Forrest walked into the courtroom during jury selection, he smiled and waved at Miss Bays and she responded by smiling and waving back at him. Miss Bays admitted that she was related to Forrest, that she sees Forrest regularly, and that she was also the cousin of his girlfriend. The prosecution also stated that it had information that Miss Bays was involved in drug trafficking with Forrest. After hearing these reasons and with no rebuttal by the defendant, the judge found these reasons to be race-neutral. As the Mississippi Supreme Court has held that knowing the defendant is a sufficiently race-neutral reason for challenging potential jurors, we cannot find that the judge was in error in accepting the prosecution’s reasons. See Porter v. State, 616 So.2d 899, 907 (Miss.1993); Griffin v. State, 607 So.2d 1197, 1203 (Miss.1992).

¶ 7. The second peremptory challenge was used against juror number five, Miss Robinson. The prosecution stated that Miss Robinson had two outstanding warrants for her arrest at the time of the venire. The prosecution believed the warrants charged Miss Robinson with false pretense. Forrest’s rebuttal claimed that being charged with a crime is no reason to exclude a potential juror. The judge then noted that, although this reason would not suffice to excuse Miss Robinson for cause, it was a sufficiently race-neutral reason to survive a Batson challenge. We cannot find that the judge erred in accepting the prosecution’s peremptory challenge to Miss Robinson.

¶ 8. The third peremptory challenge was used against juror number twelve, Lisa Woods Herman. The prosecution struck Miss Herman because she was an aider-man for the City of Duck Hill. The prosecution stated that it was familiar with Miss Herman’s public opinions because she had “been in the paper, been a lot of controversy, a lot of turmoil about the police department, law enforcement.” Forrest’s only rebuttal was to claim that Batson prohibits the State from challenging black jurors. The judge noted that over the years Bat-son had been expanded to include more valid race-neutral reasons and that the reason provided by the prosecution was sufficiently race-neutral to survive a challenge. We cannot find that the judge was in error by accepting the prosecution’s peremptory challenge against this particular juror.

¶ 9. The fourth and final peremptory challenge was used to strike juror number fifteen, Miss Evangeline Simpson. The prosecution struck Miss Simpson because she had been friends with Forrest’s mother for years. The prosecution also stated that it believed Miss Simpson was related to Maurice Simpson, an escaped fugitive, and that she was related to Forrest because her maiden name was Forrest. Forrest’s only rebuttal was similar to his rebuttal with Miss Herman, that Batson prohibits the State from challenging black jurors. The judge found that knowing Forrest’s mother was a sufficient race-neutral reason to strike Miss Simpson. As the supreme court has also held that knowing the defendant’s mother is a valid race-neutral reason for striking a juror, we cannot find that the judge erred in accepting the prosecution’s peremptory challenge. See Jasper v. State, 759 So.2d 1136 (¶ 15) (Miss.1999); Manning v. State, 735 So.2d 323 (¶ 32) (Miss.1999).

¶ 10. We find no evidence that the trial judge acted erroneously in allowing the prosecution’s peremptory challenges to stand; thus, this issue is without merit.

II. DID THE LOWER COURT ERR IN ALLOWING THE STATE TO INTRODUCE EVIDENCE OF CRIMES NOT CHARGED AGAINST FORREST?

¶ 11. With his second issue, Forrest contends that other crimes not charged against him were heard by the jury through the playing of an audiotape, the testimony of a witness, and a remark made by the State during their closing argument. Forrest initially made three motions in limine, of which one is at issue. The motion in limine requested that there be no mention of any crimes not charged against him. Forrest wanted to keep Blaylock, the confidential informant, from testifying that he knew Forrest from past drug purchases. The State responded that its proof would be limited to show Blaylock knew Forrest, but not due to past drug purchases. The lower court sustained this motion in limine and instructed the State to inform Blaylock not to mention any crimes other than the one charged.

¶ 12. One of Forrest’s arguments is that on the audiotape of the crime, Blay-lock stated that he was calling Forrest because he had bought drugs from him before. However, during the trial, Forrest stated that he had listened to the entire tape and had no objection to the tape being introduced into evidence. In fact, Forrest wanted the tape presented to the jury in its entirety and never objected while it was playing. We cannot find error where Forrest has objected to the information contained on the audiotape for the first time on appeal to this Court.

¶ 13. Forrest also mentions the testimony of Solomon, the undercover agent, as another instance where his prior criminal acts were mentioned. In response to the State’s question, “What was the purpose of having the confidential informant there?”, Solomon replied, “To introduce myself to members of the community who might be selling drugs.” There was never any contemporaneous objection by Forrest to this statement and we fail to see how this reply by Solomon would necessitate a mistrial.

¶ 14. The last argument by Forrest is that the State made improper remarks concerning prior criminal acts during its closing argument. The remarks Forrest refers to consist of blanket statements about drug dealers being paranoid and only wanting to sell to people they know. Once again Forrest failed to object to this statement and we also fail to see how these statements would necessitate a mistrial.

¶ 15. We must make note of the fact that, while on the stand in his own defense, Forrest admitted to having been convicted of a previous drug offense and that he was on probation when the sale in question occurred. Even though Forrest admitted to a prior drug crime conviction, the lower court called for a limiting instruction and polled each member of the jury to make certain they would not consider this previous conviction in determining his guilt or innocence. We can only conclude that any prejudice resulting from any of these statements, the most prejudicial of which was made by Forrest himself, was cured upon the polling of the jury and the addition of a limiting instruction.

III. DID THE LOWER COURT ERR IN ALLOWING THE TESTIMONY OF TWO WITNESSES WHERE THEIR CREDIBILITY WAS IMPEACHED AND WHERE THEIR TESTIMONY PROVIDED THE ONLY BASIS FOR THE JURY’S CONVICTION?

¶ 16. In his last issue, Forrest contends that his conviction should be reversed for lack of credible evidence based on two reasons: first, that Solomon did not actually see Forrest in possession of the cocaine, and second, that the testimony of Blaylock and Banks was successfully impeached and should have been excluded. As Forrest argues that the jury verdict was against the overwhelming weight of the evidence, we look to our standard of review.

In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.

Dudley v. State, 719 So.2d 180 (¶ 8) (Miss.1998).

¶ 17. Forrest claims that he successfully impeached the testimony of Blaylock and Banks because they each admitted on the witness stand that they suffered from drug addiction, had been previously convicted of crimes, and were both receiving a benefit from testifying against Forrest. However, Forrest goes no further in this argument beyond his conclusory assertion that the witnesses were impeached nor does he point to any portion of the record that demonstrates the complete impeachment of these witnesses’ credibility. The only specific part of the record Forrest mentions concerns Blaylock’s being paid for his services as a confidential informant and Bank’s pleading guilty to the same crime charged against Forrest.

¶ 18. However, it is the duty of the jury to consider all the evidence before it, including that evidence which tends to impeach a witness’s credibility, and then to decide what weight and worth to give to any particular witness’s testimony. Quay v. Archie L. Crawford and Shippers Exp., Inc., 788 So.2d 76 (¶ 30) (Miss.Ct.App.2001). Once the jury resolves any differences presented by the evidence, both the trial court and appellate court are obligated to give substantial deference to the jury’s decision. Estes v. State, 782 So.2d 1244 (¶ 28) (Miss.Ct.App.2000). In this case, the jury chose to believe the testimony of Blaylock and Banks implicating Forrest in the crime. We cannot find that the credibility of Blay-lock and Banks was impeached such that no rational juror could possibly accept their statements as true. The jury believed Blaylock, Banks, and Solomon, and, therefore, we find Forrest’s claim that the verdict was against the overwhelming weight of the evidence to be without merit.

¶ 19. THE JUDGMENT OF THE MONTGOMERY COUNTY CIRCUIT COURT OF CONVICTION OF SALE OF A CONTROLLED SUBSTANCE AND ENHANCED SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO MONTGOMERY COUNTY.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. KING, P.J, DISSENTS WITH A SEPARATE WRITTEN OPINION JOINED BY IRVING, J.

KING, P.J.,

Dissenting.

¶ 20. With appropriate regard for the majority, I believe that it has erred, and I therefore dissent.

¶ 21. The majority states that it finds no fault with the trial judge’s handling of the defendant’s Batson objection. Such a position is in my judgment wrong.

¶ 22. In reviewing this matter, perhaps it is best to read the actual relevant portions of the transcript on jury selection. That information, which is contained in the trial transcript, is as follows:

BY MR. HILL: Yes, sir. Your Hon- or, as to juror number 4, which was State’s peremptory challenge number one, Gina Marie Bays, the first thing that drew my attention to her this morning is that she was seated on the front row with the jury panel. When the defendant walked in, he walked to her, smiled at her and waved at her. She smiled, made eye contact with him and smiled and waved back at him.
I immediately knew then that they were at least acquainted. Upon questioning her, she admitted that she smiled and waved at him and admitted she knew him. She is a friend of his girlfriend. She is related to him, blood relation to him. I have information that she is a — involved in drug trafficking with the defendant. And for that reason — for those reasons, I don’t want her on the jury.
BY THE COURT: Rebuttal?
BY MR. FRANKLIN: (no response)
BY THE COURT: Rebuttal?
BY MR. FRANKLIN: No, sir.
BY THE COURT: Okay. I find that is race-neutral. Number five, Miss Robinson.
BY MR. HILL: I am informed that Miss Robinson has two active and outstanding warrants for her arrest right now. I think they are for false pretense. I have not investigated — I hadn’t seen the actual warrants, but I have talked with people in law enforcement who tell me they were looking for her to arrest her and brought it to their attention her name was on this list. We have two outstanding warrants for her arrest, I believe, for false pretense. For that reason, I don’t want her on the jury.
BY MR. FRANKLIN: Your Honor, I would like to make rebuttal to that. This witness — I mean this prospective juror has been through all of the examinations by all of us. She has not answered one question that I have a note about on my notes. I don’t believe she opened her mouth.
The fact that a person who sits on a jury panel is accused of a crime is no reason to, to challenge her. You wouldn’t grant that challenge for cause. Because she is one of four of this defendant’s race that have been selectively excluded from hearing this case, we don’t believe that is a race neutral reason.
Certainly, we would object to that. I don’t think what he just said meets the criteria under Batson for giving race-neutral reasons. This is a black female who never opened her mouth. And simply because the fact she is accused or charged with a crime is absolutely no reason for exclusionary challenge under Batson in this case for trial.
BY THE COURT: Well, it wouldn’t for cause, but it’s subject to peremptory as long as it’s a race-neutral reason.
BY MR. HILL: Let me just say for the record that my understanding of the issuance of a warrant by magistrate means they found probable cause to believe that person—
BY THE COURT: I already ruled. Let’s move on. Twelve.
BY MR. HILL: Twelve. Lisa Woods Herman. She is an alderman for the city of Duck Hill. And we are very familiar with Miss Herman’s public opinions. And she has been in the paper, been a lot of controversy, a lot of turmoil about the police department, law enforcement. And we believe that she is ultra liberal in her thinking, as far as law enforcement is concerned. And for that reason, we would challenge her.
BY MR. FRANKLIN: Here again, Your Honor, this is one of four challenges they have made against black citizens of this county. The only thing I can state for the record is that Batson prohibits them from doing exactly what they are doing here, the only way they are gong to be stopped from doing this is from a ruling from Your Honor.
BY THE COURT: Okay. But under Batson and the progeny after it, they have expanded Batson to the point it adds more criteria than it did in the past. That is a race-neutral reason right there. And so they are entitled to strike her. Fifteen, Miss Simpson.
BY MR. HILL: Miss Simpson. We have discussed Miss Simpson as a juror on this case, Your Honor. Two things— two major reasons. Number one is that she knows the defendant’s mother and was friendly' — on friendly terms with the defendant’s mother. The next is we believe that she is kin to Maurice Simpson, who is a fugitive from justice. He is an escaped fugitive. And number three and probably more important than those two is the fact that we are informed her maiden name is Forrest. She is a Forrest herself and didn’t bring that to our attention when we were inquiring about that.
BY THE COURT: She never was asked that. She was asked if she was kin to him. There were other people named Forrést on this jury that were not kin to him.
BY MR. HILL: I am not aware of any Forrest that wasn’t kin to him. I think our information established they were all some kind of kin. Anyway, we believe she is kin and has the same last name as the defendant — maiden name.
BY MR. FRANKLIN: Again, Your Honor, this witness was extensively questioned. She absolutely gave no reason at all to warrant her not — by her responses to the questions to warrant her not being placed on this jury. She is one of four challenges, all black. This defendant is black. Batson prohibits that. And we object and take exception to their reasons given for this peremptory challenge.
BY THE COURT: She stated she knows his mother. And that, in and of itself, would be sufficient for them to strike her as peremptory. That is a race-neutral reason. What do you say to number one?

¶23. Having read this portion of the transcript, I am unconvinced that the trial judge properly dealt with Forrest’s Batson objection. Batson requires that the reasons for peremptory challenges be facially neutral and not a subterfuge for racial discrimination. Batson v. Kentucky, 476 U.S. 79, 96-97, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

¶ 24. When a Batson issue is raised, our trial judges are required to make an on the record determination as to (1) whether the reason is facially race neutral, and (2) whether a facially race neutral reason is being used to mask an intent to discriminate. Hatten v. State, 628 So.2d 294, 298 (Miss.1993).

¶ 25. Even a cursory reading of the record demonstrates that the trial judge failed to make a proper on the record determination. The extent of the trial court’s on the record determination is contained in the following statements by the trial judge:

BY THE COURT: Well, it wouldn’t for cause, but it’s subject to peremptory as long as it’s a race-neutral reason.
* * * *
BY THE COURT: Okay. But under Batson and the progeny after it, they have expanded Batson to the point it adds more criteria than it did in the past. That is a race-neutral reason right there. And so they are entitled to strike her.
* * * *
BY THE COURT: She stated she knew his mother. And that, in and of itself, would be sufficient for them to strike her as peremptory. That is a race-neutral reason.

¶ 26. The failure to conduct a proper Batson analysis at worst violates the equal protection rights of the defendant, Bogan v. State, 811 So.2d 286 (¶ 12) (Miss.Ct.App.2001), and at best is an invitation to mischief by the prosecution. State v. Gaitan, 536 N.W.2d 11, 20 (Minn.1995) (Page, J., dissenting). This can readily be seen as relates to Lisa Woods Herman, the Duck Hill alderwoman. The reason given by the State for excluding Miss Herman was:

BY MR. HILL: Twelve. Lisa Woods Herman. She is an alderman for the city of Duck Hill. And we are very familiar with Miss Herman’s public opinions. And she has been in the paper, been a lot of controversy, a lot of turmoil about the police department, law enforcement. And we believe that she is ultra liberal in her thinking, as far as law enforcement is concerned. And for that reason, we would challenge her.

¶ 27. There is nothing in the record to reflect any statements which might have been made by Miss Herman or the context within which those statements were made. There is nothing in the record to show the truth or falsity of any remarks by Miss Herman. In short there is nothing in the record on this issue, except she thinks and the prosecution appears to find that unacceptable in a juror.

¶ 28. This beyond question demonstrates that the trial court did not meet its obligation under Hatten to make an on the record determination of (1) whether the reason for the peremptory challenge is facially race neutral, and (2) whether a facially race neutral reason was merely a pretext to mask a discriminatory intent. Hatten v. State, 628 So.2d at 298. This failure by the trial court significantly impairs this Court’s performance of its appellate responsibility. Tobias v. State, 584 So.2d 1276, 1279 (Miss.1991).

¶ 29. For these reasons, I dissent.

IRVING, J., JOINS THIS SEPARATE OPINION.


text:
    Nathaniel BURNETT, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01968-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2003.
    Rehearing Denied March 2, 2004.
    Certiorari Denied July 6, 2004.

      Pearson Liddell, Louisville, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. A jury convicted Nathaniel Burnett of possession of cocaine. On appeal he argues that the trial court should have suppressed certain evidence, should not have admitted evidence about another offense, and should have entered a directed verdict. We find no error and affirm.

FACTS

¶ 2. On June 1, 2000, Nathaniel Burnett was driving at a high rate of speed in Oktibbeha County. He was pursued by Deputy Sheriff Roy Moore in a marked patrol car. Moore had been parked in a driveway alongside the road in order to investigate complaints about speeders. Officer Moore determined that Burnett’s car was traveling more than the posted 45 miles per hour speed limit. Burnett refused to stop his car despite the pursuing marked law enforcement vehicle. At times Burnett exceeded 100 miles per hour in his efforts to escape.

¶ 3. Among the observed traffic offenses, Burnett was speeding and driving recklessly by weaving around equipment at a road construction area. It was at the construction location that Burnett finally stopped. After having Burnett’s driver’s license checked at the sheriffs department, the officer learned of an outstanding warrant for Burnett’s arrest for aggravated assault. He was arrested.

¶ 4. During the search of Burnett incident to the arrest, a plastic medicine bottle in the waistband of his pants was found. Later scientific testing revealed that the bottle contained cocaine.

¶ 5. Burnett was found guilty of possession of cocaine. This is his appeal.

DISCUSSION

Issue 1: Motion to suppress the evidence

¶ 6. Burnett claims that the medicine bottle found on him should have been suppressed as the product of an illegal traffic stop. A law enforcement officer has the authority to stop a motorist if the officer has probable cause to believe that the person is committing a traffic offense. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (proper to stop vehicle that was speeding). That Burnett was speeding was Officer Moore’s reasonable conclusion based on what he observed before beginning the chase. He jokingly testified that, as Burnett went by, he thought a jet plane had passed. Moore pursued him, and the speeding continued and reckless driving began. That is probable cause to believe that traffic offenses were being committed in the officer’s presence.

Issue 2: Introduction of felony warrant to explain defendant’s arrest

¶ 7. The officer testified that after obtaining Burnett’s driver’s license, the officer went back to his car to call the sheriffs department and have a check performed on the license. He learned from that about an outstanding warrant for Burnett’s arrest. He did not state the crime for which the warrant was issued. Burnett says that this was improper evidence of other bad acts.

¶ 8. Evidence that reveals other crimes may be presented in order to tell a rational and clear story of what happened if that is necessary to present the full story. Brown v. State, 483 So.2d 328, 330 (Miss.1986). In order to make a well informed decision regarding Burnett’s guilt, the jury needed to understand the circumstances surrounding the search that discovered the cocaine. The trial court found that the information regarding the existing warrant was necessary to achieve this end.

¶ 9. The jury was made aware of a warrant for Burnett’s arrest, but jurors were not informed of the specific reason for the warrant. This was an appropriate balancing of the probative value of the information and the possibly unfair prejudice that could result from it. M.R.E. 403. There was no error in allowing the jurors to learn that a previous arrest warrant was discovered.

Issue 3: Directed verdict

¶ 10. Burnett challenges the sufficiency of the evidence. At the close of the State’s case in chief, Burnett moved for a directed verdict.

¶ 11. Our appellate review of this issue causes us to examine all the evidence and any inferences supportive of guilt in the light most favorable to the State. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The trial court’s decision will be reversed only, if under such review, we find that no reasonable and fair minded juror could find the defendant guilty. Id.

¶ 12. Officer Moore had a reasonable basis to believe that Burnett was speeding when he started pursing him. Burnett was able to see the blue lights and hear the siren, yet he continued to drive at a high rate of speed and drive recklessly while refusing to stop. Officer Moore lawfully arrested Burnett when he searched him and found cocaine. This was sufficient proof.

4. Venue

¶ 13. Burnett also claims on appeal that he was prosecuted in the wrong county. By statute, the jurisdiction of all offenses is in the county where the crime was committed. Miss.Code Ann. § 99-11-3(1) (Supp.2003). The pursuit started in Oktib-beha County and ended in Lowndes County. Burnett argues that the case should have been tried in Lowndes County.

¶ 14. Burnett raises this issue for the first time on appeal after never challenging it at trial. Venue can be waived. Here, it was. Williams v. United States, 582 F.2d 1039, 1041 (6th Cir.1978) (venue is “a privilege granted to the accused rather than a jurisdictional prerequisite, a conclusion which is consistent with the overwhelming case law holding that improper venue may be waived”).

¶ 15. Moreover, the crime here was possession of a controlled substance. The evidence was that he did not obtain it at the end of the chase, but surely possessed the substance at the beginning, at the end, and at every point in between. Its discovery at the point that the chase ended does not dilute the inference that he must have possessed the substance when the chase began in Oktibbeha County. When two counties are involved in the commission of a crime, either county is a proper venue. Miss.Code Ann. § 99-11-19 (Rev.2000).

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF CONVICTION OF POSSESSION OF COCAINE AND SENTENCE OF SIX YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $2,500 IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO OKTIBBEHA COUNTY.

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