source: Caselaw Access Project

author: EASLEY, JUSTICE, FOR THE COURT: GRAVES, JUSTICE,

license: Public Domain

text:
    Pamela VENTON and Michael Venton, Individually and on behalf of the Wrongful Death Beneficiaries of Jonathan Venton, Deceased v. Dr. James R. BECKHAM.
    No. 2001-CA-01459-SCT.
    Supreme Court of Mississippi.
    May 15, 2003.

      Kimberly Georgette Jones, Charles Victor McTeer, Greenville, for appellant.
    Clinton M. Guenther, Tommie G. Williams, Greenwood, Willie L. Bailey, Greenville, for appellee.
   EASLEY, JUSTICE, FOR THE COURT:

PROCEDURAL HISTORY

¶ 1. This case concerns a medical malpractice claim for the death of an unborn child. Pamela and Michael Venton (Pamela, Michael, or “the Ventons” collectively) filed suit on May 4, 1998, in the Circuit Court of Washington County, Mississippi, against Dr. James R. Beckham (Dr. Beck-ham) for the wrongful death of their unborn child, Jonathan. At the conclusion of the trial the jury returned a verdict in favor of Dr. Beckham and judgment was entered accordingly. The jury was comprised of seven African-Americans, five Caucasians and two African-American alternate jurors. Of the twelve jurors, seven were female and five were male. The trial court denied the Ventons’ motion for judgment notwithstanding the verdict and in the alternative a motion for new trial. From this ruling, the Ventons now appeal to this Court. This Court finds that the Ventons arguments are without merit and affirms the judgment entered on the jury verdict in favor of Dr. Beckham.

FACTS

¶ 2. Dr. Beckham was Pamela’s physician during her pregnancy. Unfortunately, Pamela’s pregnancy terminated on June 4, 1997, with the death of her child. This suit arose over a dispute between the parties concerning Dr. Beckham’s recommendation of the time of the baby’s delivery.

¶ 3. Pamela had a history of mild to heightened blood pressure from December 17, 1996, throughout her pregnancy. This condition may increase the risk of placental insufficiency which could result in fetal demise, i.e. death. Fetal monitoring was performed on the baby. A series of non-stress tests were administered to monitor the baby’s heartbeat and well-being. The tests reveal two types of results. A “reactive” result signifies the baby’s well-being, whereas a “non-reactive” result signifies that either the baby does not have well-being or the baby’s well-being cannot be confirmed.

¶ 4. Pamela had non-stress tests on May 23, May 25, and May 28, 1997. All these tests had reactive results. On June 2, 1997, Pamela returned for another non-stress test. The June 2 test had a nonreactive result. On June 3, 1997, Pamela had two more non-stress tests administered in the morning and in the afternoon. Both tests on June 3 had non-reactive results. Following the tests performed on June 3, a dispute arises between the parties concerning the recommended time for delivery.

¶ 5. Dr. Beckham claims that after the two non-reactive tests on June 3, he urged Pamela to allow him to deliver the baby by cesarean section that afternoon. His medical report stated that he recommended delivery “today” that being June 3. Dr. Beckham was concerned about the well being of the baby. Pamela, however, insisted on waiting until June 5, 1997, to deliver the baby initially then stated June 4. He stated that Pamela told him that “I’ve got too much to do and there’s no way I can come in till Thursday” (June 5). Prior to the delivery on the morning of June 4, it was discovered that the baby had died sometime between the afternoon of June 3 and the morning of June 4. In contrast, Pamela claims that Dr. Beckham gave her an option to have the delivery performed on either June 3 or the morning of June 4,1997.

¶ 6. On appeal to this Court the Ventons raise the following issues:

I. Whether the trial court erred and abused its discretion by striking two African-American jurors for cause for a lack of transportation and striking two African-American jurors for cause for failure to disclose collection efforts by the clinic employing Dr. Beckham.
II. Whether the trial court erred and abused its discretion for denying the Ventons’ Motion to Compel Production of Documents.
III. Whether the verdict was against the overwhelming weight of the evidence.
LEGAL ANALYSIS
I. Whether the trial court erred and abused its discretion by striking two African-American jurors for cause for a lack of transportation and striking two African-American jurors for cause for failure to disclose collection efforts by the clinic employing Dr. Beckham.

¶ 7. “A circuit judge has wide discretion in determining whether to excuse any prospective juror, including one challenged for cause. The circuit judge has an absolute duty, however, to see that the jury selected to try any case is fair, impartial and competent.” Ill. Cent. R.R. v. Hawkins, 830 So.2d 1162, 1176 (Miss.2002). See also Brown ex rel. Webb v. Blackwood, 697 So.2d 763, 769 (Miss.1997); Poe v. State, 739 So.2d 405, 409 (Miss.Ct.App.1999) (the trial court has wide latitude in deciding whether to excuse a potential juror, including an exclusion for cause).

¶ 8. The trial judge has discretion in determining whether to excuse a juror, and such decision will not be set aside unless it is clearly wrong. Wells v. State, 698 So.2d 497, 501 (Miss.1997). “Because the trial judge, due to his presence during the voir dire process, is in a better position to evaluate the prospective juror’s responses, the decision of whether or not to excuse the juror is left to the trial judge’s discretion.” Smith v. State, 802 So.2d 82, 86 (Miss.2001) (quoting Wells v. State, 698 So.2d 497, 501 (Miss.1997)).

¶ 9. The Ventons argue that the trial court abused its discretion by striking for cause two jurors with transportation problems. The two jurors were African-American females, Carol Eanes (Eanes) and Diane Washington (Washington). Additionally, the Ventons argue that the trial court abused its discretion by striking for cause Shirley Grigsby (Grigsby) and Evelyn Williams (Williams). These two jurors, also African-American females, were struck because they had been patients at Dr. Beckham’s clinic and failed to disclose that their accounts had been in collection. The Ventons argue that the exclusion of these four venire persons was irrational and on the basis of race, sex, and economic condition.

A. Transportation

¶ 10. During voir dire, the trial judge became aware that, venire persons Washington and Eanes had transportation difficulties. The following pertinent exchanges occurred:

Q. Thank you. Ms. Allison, did you say that you had transportation problems?
A. Yes.
Q. Difficulty in getting acknowledge [sic] and forth to court?
A. Yes.
Q. You understand that this case might last — will probably last for three days and end up sometime Wednesday?
A. Yes.
Q. And on your own you simply don’t have a way to get back and forth?
A. No, sir. I ride to work with another guy.
Q. Mr. Ledbetter' — oh, what’s your name, ma’am?
A. (Carol Eanes) Carol Eanes.
Q. Ms. Eanes?
A. Yes, sir. (Inaudible)
THE COURT: Can’t hear her.
A. Carol Eanes.
Q. You cannot be here tomorrow?
A. No.
Q. And for what reason?
A. I have transportation problems.
Later the trial judge stated:
The Court: Betty Thomas, who has to take the child to New Orleans to school, I’m going to excuse her. The two ladies [Washington and Eanes] that don’t have a ride, if we have enough after we get through the cause challenges, I’m going to excuse them, But I’m not — 'if we need them, I’m going to leave them on there and I’ll just figure out a way to get them a ride.

When the challenges for cause were complete, the trial court stated the following:

The Court: I’m going to excuse Washington and Eanes because they have no transportation.

¶ 11. The Ventons provide no case law that prohibits excusing a juror for cause on the basis of a lack of transportation. Both Eanes and Washington volunteered to the trial judge that they had transportation problems. This trial was not a one-day event, rather it lasted for three days. What is more, there is no evidence to show that the Ventons were prejudiced by striking the two women for cause. This Court has held that “the selection of jurors is ‘a judgment call peculiarly within the province of the circuit judge, and one we will not on appeal second guess in the absence of a record showing a clear abuse of discretion.’ ” Brown, 697 So.2d at 771 (quoting Scott v. Ball, 595 So.2d 848, 850 (Miss.1992)). The Ventons, however, complain that all four African-American females (i.e., Eanes, Washington, Grigsby, and Williams), were removed from the venire panel in a suit involving obstetrical treatment of a woman. There is no indication that the Ventons were denied a fair, impartial and competent jury of their peers. In Carr v. State, 655 So.2d 824, 840 (Miss.1995), this Court held that “[t]here is no constitutional right to have a jury mirror any particular community.” “Proportional representation of the races on a jury is not required.” Harris v. State, 576 So.2d 1262, 1264 (Miss.1991) (citing Booker v. State, 449 So.2d 209, 215 (Miss.1984)). “What is required is that county officials must see to it that jurors are in fact and in good faith selected without regard to race.” Dorsey v. State, 243 So.2d 550, 551 (Miss.1971). See also Grayson v. State, 736 So.2d 394, 396 (Miss.Ct.App.1999). The Ventons are not entitled to a jury that mirrors any particular community, gender, or proportional representation of race. The Ventons are entitled to a fair, impartial, and competent jury. Here, the jury consisted of seven African-Americans and five Caucasians which had seven females and five males. Thus, the Ventons had a seated jury with a majority of females and a majority of African-Americans. Accordingly, we find that the trial court did not abuse its discretion in striking Eanes and Washington for cause.

B. Failure to Disclose Collection Efforts

¶ 12. The Ventons argue that the trial court abused its discretion by striking venire persons Grigsby and Williams for stating that they had no problems with medical expenses. The inquiry, according to the Ventons, was too broad and vague. In addition, the Ventons complain that Dr. Beckham did not inform them which veni-re members were subject to collection efforts by his employer.

¶ 13. During voir dire, Dr. Beckham’s counsel asked the following question to patients of the clinic employing Dr. Beck-ham:

Q. Anything about the relationship that would impact on your — let me ask this question once. When we identify y’all that have been patients of these doctors, my question is going to be is there anything about that relationship whether if was how did [sic], the way that doctor treated you, your bill, anything of that— anything of any sort that would cause you difficulty in serving on this ease.

(emphasis added). Both Grigsby and Williams stated “no” to the inquiry.. The trial judge struck Grigsby for cause because she failed to disclose that there was a problem with the bill, (i.e., it was turned over for collection efforts). The trial judge also struck Williams for the same reason. When the trial judge struck both Grigsby and Williams he stated that he specifically remembered Dr. Beckham’s counsel questioning them. However, the trial judge denied Dr. Beckham’s request to strike four other venire persons for a failure to disclose the billing situation. The trial judge ruled that Dr. Beckham’s counsel had not asked these other four venire persons adequate questions and denied the challenges. In fact, one of the four venire persons sat on the jury and two others were the alternate jurors in this case. Evelyn Smutzer testified before the court concerning accounts receivable documents and gave the names of each venire person that had an account turned over for collection efforts.

¶ 14. The trial judge did not abuse his discretion in striking Grigsby and Williams. Both women had been former patients at the clinic where Dr. Beckham worked, and both women had problems with the bills and failed to disclose this fact to the trial court. The trial judge specifically remembered that Dr. Beckham’s counsel had made adequate inquiry concerning these two women. However, the trial judge denied challenges for cause for other venire persons similarly situated because the judge determined that there was not enough specific inquiry by counsel. We cannot say that the trial judge abused his discretion by striking these women for cause. Accordingly, this issue is without merit.

II. Whether the trial court erred and abused its discretion for denying the Ventons’ Motion to Compel Production of Documents.

¶ 15. “In regard to matters relating to discovery, the trial court has considerable discretion. The discovery orders of the trial court will not be disturbed unless there has been an abuse of discretion.” Dawkins v. Redd Pest Control Co., 607 So.2d 1232, 1234 (Miss.1992). See also Mallet v. Carter, 803 So.2d 504, 506 (Miss.Ct.App.2002).

¶ 16. The Ventons argue that the trial court erred by denying them the opportunity to add another expert. The Ventons wanted Dr. Hans Gideon (Dr. Gideon), a document expert from Georgia, to inspect Dr. Beckham’s medical records and a “note” written by Terri Hill (Hill), a nurse who participated in Pamela’s care. According to the Ventons, they believed that the medical records contained errors. Dr. Gideon was to examine and determine when the notations were made to the documents. In order to perform this examination, Dr. Gideon would need to examine the original documents, not copies, for 10 days in Atlanta. The purpose of Dr. Gideon’s testimony was to impeach the testimony of Dr. Beckham and Hill.

¶ 17. The Ventons filed suit against Dr. Beckham on May 4, 1998. Dr. Beckham and Hill were deposed in October 1998. During Hill’s deposition, it was revealed that she had written a personal note concerning the events of Pamela’s case. The note was written after the cesarean section.

¶ 18. An Agreed Amended Scheduling Order was enter on November 24, 1998, stating that all discovery shall be completed by April 30, 1999, and all expert witnesses shall be designated no later than March, 17, 1999. In fact, the Ventons designated two experts on November 19, 1998. The Ventons filed a motion for pretrial conference and/or for a trial setting on January 11,1999. On January 13, 2000, the trial was set for June 26, 2000. On March 8, 2000, the Ventons filed a motion for disclosure of Dr. Beckham’s original medical records. A subpoena duces tecum was issued on the same day to Hill for production of her note. Prior to trial on May 3, 2000, the Ventons filed a motion to compel and show cause for the failure to produce the note.

¶ 19. Dr. Beckman contended that inspection of his original medical records and a copy of the medical records were provided to the Ventons at his deposition in October 1998. Further, Dr. Beckham filed a certificate of compliance with the trial court which stated that he had provided the Ventons a true and correct copy of Hill’s note. The trial was continued and rescheduled on May 17, 2000, by an agreed order.

¶ 20. A hearing was conducted on May 24, 2000. The trial judge denied the Ven-tons’ request on August 31, 2000. In the order the trial judge stated:

The parties agreed to extend discovery until April 30, 1999, and to designate expert witnesses by March 17, 1999. Depositions of Dr. Beckham and Ms. Hill were taken in October, 1998, at which time the existence of Ms. Hill’s personal note came to light. Plaintiffs have had copies of Dr. Beckham’s records since July, 1998. Plaintiffs did not request that this Court extend the discovery deadline or the date for the designation of expert witnesses, and they have not shown good cause for the lengthy delay in designating ... Mr. Gideon in May, 2000, more than a year after the expiration of the March 17, 1999, deadline. Plaintiffs previously designated Dr. Fields and Dr. Channell in November, 1998.
This Court orders that plaintiffs Motion for Disclosure of Dr. James Beckham’s Original Medical Records and the Motion to Compel/and to Show Cause are not well taken and are both hereby DENIED. Furthermore, defendant’s Motion for Protective Order and Motion to Quash are GRANTED. The subpoena issued for Ms. Hill’s note shall be quashed, and the requested discovery shall not be had....

¶ 21. The Ventons argue that the trial court erred when it denied the request to list their expert on August 2000, more than 10 months before the trial finally occurred in June 2001. Further, the Ventons claim that the ruling ignores Rule 4.04 of the Uniform Circuit and County Court and precedent. Rule 4.04(A) pertains to discovery and states:

All discovery must be completed within ninety days from service of an answer by the applicable defendant. Additional discovery time may be allowed with leave of court upon written motion setting forth good cause for the extension. Absent special circumstances the court will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least sixty days before trial,

(emphasis added).

¶ 22. Dr. Beckham argues that the Uniform Circuit and County Court Rule 4.04(a) does not take precedence over a scheduling order. He asserts that the Ventons initiated the agreed order with the designated deadlines, counsel for all parties agreed to the order, and no motion for extension of the deadline was made by the Ventons. Further, Dr. Beckham contends that Rule 4.04(A) does not provide for arbitrary designation of expert witnesses 60 days before the trial. The Ventons did not provide any special circumstances in regard to Dr. Gideon’s testimony.

¶ 23. The first time that Dr. Beckman was aware that the Ventons were even considering Dr. Gideon as an expert was in the motion to compel/motion to show cause and in the Ventons’ rebuttal to the defendant’s response to motion for disclosure of original medical records on May 3, 2000, less than 60 days before the June 26, 2000, originally scheduled trial date. In addition, Dr. Beckham maintains that the Ven-tons waited a year and a half after he and Hill were deposed and more than one year after the expiration of the discovery deadline to make new allegations which were never part of the complaint, amended complaint or responses to interrogatories. At the hearing and in his brief, Dr. Beckham argued that the trial was not postponed to 2001 to re-open the discovery process, rather the rescheduling was done because the trial was a third sitting and experts were traveling from out of state. Also, Dr. Beckham argues that the record contains no evidence that the medical records contained any errors, additions or alterations.

¶24. Each party cites to case law in their briefs that allowed varying times in which to perform discovery. The Ventons cite Motorola Communications & Electronics, Inc. v. Wilkerson, 555 So.2d 713, 717 (Miss.1989), a case in which an interrogatory response delivered three days after the discovery deadline and 10 days before trial was considered to be a “seasonable” supplement. The facts of the case sub judice are distinguishable from Wilkerson. The discovery period in this case closed more than one and half years before trial and new allegations were made by the Ventons. These allegations were never part of the complaint or amended complaint. Further, the Ventons knew of the note and the medical records in October, 1998, yet offered no reason why there was a delay in implementing research and assistance by an expert document examiner until May 2000. Dr. Beckham relies upon Mallet, 803 So.2d at 506, in which an expert witness was not allowed by the trial court. The designation of the witness exceeded the discovery deadline by more than seven months with the only excuse that finding a local expert was more difficult than anticipated.

¶ 25. A trial court has the authority and indeed a duty to maintain control of the docket and ensure the efficient disposal of court business. Harris v. Fort Worth Steel & Mach. Co., 440 So.2d 294, 296 (Miss.1983). In addition, the trial court has “considerable discretion” in matters pertaining to discovery. Dawkins, 607 So.2d at 1234. The standard is an abuse of discretion. Id. The trial judge heard arguments by each side, including the requirements of Rule 4.04. The judge concluded that the Ventons were aware of the documents since October 1998. No extension of the deadline for discovery or designation of an expert was requested by the Ventons. Further, the trial judge determined that there was no good cause shown for the delay. This Court finds that the trial court did not abuse its discretion. The trial judge carefully considered the facts of the case and the lack of good cause shown for the lengthy delay in this matter. Accordingly, this issue is without merit.

III. Whether the verdict was against the overwhelming weight of the evidence.

¶ 26. In Wal-Mart Stores, Inc. v. Johnson, 807 So.2d 382, 389 (Miss.2001), this Court stated the standard of review as follows:

Where an appellant challenges a jury verdict as being against the overwhelming weight of the evidence or the product of bias, prejudice or improper passion, this Court will show great deference to the jury verdict by resolving all conflicts in the evidence and every permissible inference from the evidence in the appellee’s favor. Bobby Kitchens, Inc. v. Mississippi Ins. Guar. Ass’n, 560 So.2d 129, 131 (Miss.1989). “Only when 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.” Herrington v. Spell, 692 So.2d 93, 103-04 (Miss.1997).

¶ 27. The trial court is given great deference in determining whether a new trial should be granted. Odom v. Roberts, 606 So.2d 114, 118 (Miss.1992). “[A] new trial may be granted when the verdict is against the overwhelming weight of the evidence, or when the jury has been confused by faulty jury instruction, or when the jury has departed from its oath and its verdict is a result of bias, passion and prejudice.” Roussel v. Robbins, 688 So.2d 714, 723-24 (Miss.1996). “When testimony is contradicted, this Court will defer to the jury, which determines the weight and worth of testimony and the credibility of the witness at trial.” Odom, 606 So.2d at 118. “This Court generally gives great deference to a jury’s findings and will set aside a verdict only when it is contrary to the weight of the evidence and credible testimony. Moreover, when the evidence is conflicting, we defer to the jury’s determination of the credibility of witnesses and the weight of their testimony.” Ducker v. Moore, 680 So.2d 808, 811 (Miss.1996).

¶ 28. The Ventons argue that the verdict was against the overwhelming weight of the evidence. The basis of the argument is that the jury verdict is unconscionable based on the testimony that the Ventons’ and Dr. Beckham’s experts allegedly were in agreement. The Ventons claim that both Dr. Richard Fields and Dr. Garland Anderson testified that they would have delivered the baby on June 2. The Ventons maintain that the jury verdict is unconscionable since Dr. Beckham did not take the actions that the two experts would have taken in treating Pamela. The Ventons are confusing the applicable standard of care with a physician’s personal actions. It is true that Dr. Anderson did state on cross-examination that he would have delivered the child on June 2. However, at no time did Dr. Anderson, expert for Dr. Beckham, ever state that Dr. Beck-ham’s actions fell below the applicable standard of care. This case centered on a battle of the experts and discrepancies in when Dr. Beckham suggested delivery of the baby.

¶ 29. Dr. Fields, expert for the Ven-tons, testified that Dr. Beckham did not follow the standard of care. Under the conditions of this case, Dr. Fields testified that Dr. Beckham fell below the standard of care by not recommending a cesarean section on June 2. He stated that the delivery should have been performed on June 2. Further, he opined that the child would have lived if delivered on June 2 or prior to the late afternoon of June 3. Dr. Fields testified that Dr. Anderson agreed with his opinion of the case.

¶ 30. On direct examination, Dr. Anderson testified that Dr. Fields’s assertion that they were in agreement was not an accurate characterization. Dr. Anderson also disagreed with Dr. Fields’s statement that “Dr. Beckham told Mrs. Venton on June 3rd, the afternoon, that it is okay to wait.”

¶ 31. Pamela had non stress tests performed on May 23, 25, and 28, 1997. All three of the tests had reactive results. Dr. Anderson testified that the standard of care would have allowed 7 days between testing provided the patient’s condition remained stable as in Pamela’s case. On June 2, 1997, another test was performed with a non-reactive result. Dr. Anderson testified that he did not agree with Dr. Fields’s opinion that Pamela required a cesarean section on June 2. At this point, Dr. Anderson stated that the standard of care would require repeat testing within 24 hours.

¶ 32. Another test was conducted on the morning of June 3 with a non-reactive result. Pamela returned for a second test in the afternoon of June 3, which also gave a non-reactive result. Dr. Anderson testified that Dr. Beckham was within the standard of care when a second test was performed on June 3rd. He also stated that Dr. Beckham was also within the standard of care when he recommended a cesarean delivery that day (June 3rd).

¶ 33. Dr. Anderson did not believe the baby died due to placental insufficiency. Dr. Anderson stated that he believed that the baby would have survived if it was delivered on either June 2 or the morning of June 3. Regardless of this belief, Dr. Anderson testified that Dr. Beckham did not violate the standard of care. Dr. Anderson, continued with the following pertinent testimony concerning the standard of care as follows:

Q. Dr. Anderson, do you believe that if Dr. Beckham had performed this cesarean section on Pamela Venton on the morning of June 2 — excuse me — the afternoon of June 2nd that this baby would be delivered alive?
A. Ido.
Q. Do you believe that if Dr. Beckham had performed a cesarian section on Mrs. Yenton on the morning of June 3 this baby would be born alive?
A. Ido.
Q. Does that mean the Ventons have proven that Dr. Beckham violated the standard of care?
* * * *
Q. Does that mean — the fact that this baby would have been born alive if that section had been done, does that mean that he [Dr. Beckham] violated the standard of care?
A. No.
Q. Why not?
A. Well, there’s a certain standard of care that you’re held to, and if you hold to — if you meet that standard of care, not every time will there not be — that doesn’t mean that everything will be alright. And, as I said before, the obligation — the minimum obligation once you start [a] nonstress test would have been to have done a test every seven days. And when Dr. Venton — I mean Dr. Beckham did the test on the 28th and it was reactive, he wasn’t obligated to do another test for seven days.
Q. Till June 4th.
A. Till June 4th.
Q. But he did three.
A. That’s correct. But regardless of what frequency of testing you do, it doesn’t mean that every baby will be born alive. What it does mean [is] that there should be very few that will die if you follow the recommendations.
Q. Good doctor practicing in compliance with the standard of care is still going to lose some babies?
A. There will be some babies that will not — there will be some babies that will die even if you follow the standard of care in every aspect. It should be very rarely, but there will be some that will die.

(emphasis added).

¶ 34. On cross-examination, Dr. Anderson did state that if he had a patient in a similar situation he would have recommended delivery of the baby on June 2 or the morning of June 3. The Ventons complain that the specific questioning by defense counsel was confusing and the facts were not clearly applicable to Pamela’s situation. They allege that the question was not carefully crafted and did not include the fact that the baby was positioned in an oblique lie. They cite an exchange that occurred during Dr. Anderson’s direct examination. However, the Ventons never objected to the questioning during trial and are procedurally barred on appellate review. What is more, this questioning occurred on direct examination; therefore, the Ventons had an opportunity to clarify any of the defense’s questions during their cross-examination. Further, Dr. Anderson reiterated on redirect examination that Dr. Beckham complied with the standard of care by waiting until the afternoon of June 3 to suggest a cesarean section.

¶ 35. The Ventons also argue that the jury was confused by Dr. Anderson’s testimony that he would have delivered the baby on June 2, but that Dr. Beckham was within the standard of care by suggesting delivery on June 3. The jury returned a 10-2 verdict in favor of Dr. Beckham. There was no evidence that the jury was confused by the testimony.

¶ 36. A jury verdict is given great deference. Ducker, 680 So.2d at 811. A jury verdict will be overturned only when it is contrary to the weight of the evidence and witness credibility. Id. Any conflicts in the evidence are resolved by the jury. Jackson v. Griffin, 390 So.2d 287, 289 (Miss.1980). To the extent that the evidence was conflicting in the case sub judiee, the jury resolves all conflicts of evidence. There was a jury question as to whether Dr. Beckham’s treatment met the standard of care. Many witnesses testified in this case. Dr. Beckham and three staff members working in 1997, Hill, Rosie Patterson and Tina Jacobs, testified that Dr. Beckham told Pamela to have the cesarean section on June 3, 1997. Pamela stated that she was given an option to have delivery on June 3 or June 4, 1997. Dr. Fields stated that Dr. Beckham fell below the standard of care and that delivery should have occurred on June 2, 1997. Dr. Anderson stated that, although he would have delivered the baby earlier, Dr. Beck-ham was in compliance with the standard of care. Dr. Anderson never stated that Dr. Beckham fell below the standard of care.

¶ 37. The jury heard all the evidence and after viewing the credible evidence in the light most favorable to the non-moving party and taking the credible evidence supporting the claims or defenses of the non-moving party as true, we find that the jury decision is supported by the record and is not against the overwhelming weight of the evidence. The jury resolved any conflicts in testimony in favor of Dr. Beckham. Accordingly, the trial judge did not abuse his discretion by denying a new trial. This issue is without merit.

CONCLUSION

¶ 38. For these reasons, the judgment entered on the jury verdict of the Circuit Court of Washington County is affirmed.

¶ 39. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB AND CARLSON, JJ., CONCUR. GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY McRAE, P.J., AND DIAZ, J.

GRAVES, JUSTICE,

DISSENTING:

¶ 40. Unfortunately, in far too many instances, voir dire has become an exercise in finding race neutral reasons to justify racially motivated strikes. Hence, despite the decisions of the U.S. Supreme Court in Batson and Edmonson, racial stereotyping and racial profiling of jurors persist. Justice Marshall predicted this scenario in his concurring opinion in Batson when he wrote, “Merely allowing defendants the opportunity to challenge the racially discriminatory use of peremptory challenges in individual cases will not end the illegitimate use of the peremptory challenge.” Batson v. Kentucky, 476 U.S. 79, 105, 106 S.Ct. 1712, 1727, 90 L.Ed.2d 69 (1986) (Marshall, J. concurring). However, in the instant case, the defendant came armed with his alleged race neutral reasons and therefore failed to ask any specific question of the venire regarding these reasons. Nevertheless, the trial court allowed the defendant to strike, for cause, African-American jurors Shirley Grigsby and Evelyn Williams, for failure to disclose that their medical bills had been turned over for collection. However, the record reveals that they were never asked about their medical bills being turned over for collection. I am compelled to dissent.

¶ 41. Batson held that “[t]he Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race.” Id. at 86, 106 S.Ct. at 1717. Batson is now applicable to civil cases pursuant to the holding in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 631, 111 S.Ct. 2077, 2089, 114 L.Ed.2d 660 (1991). The Supreme Court held that .. courts must entertain a challenge to a private litigant’s racially discriminatory use of peremptory challenges in a civil trial.” Id. at 630, 111 S.Ct. at 2088.

¶ 42. The following must be shown for a party to establish a prima facie ease of purposeful discrimination:

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

Dedeaux v. J.I. Case Co., 611 So.2d 880, 883 (Miss.1992). Upon establishing a pri-ma facie case, the party opponent must give a race neutral reason for striking that potential juror. In doing so, that reason does not have to “rise to the level justifying exercise of a challenge for cause.” Batson, 476 U.S. at 97, 106 S.Ct. at 1723. However, the reason articulated must also be related to the case. Id. at 98, 106 S.Ct at 1724. “The trial court then will have the duty to determine if the defendant has established purposeful discrimination.” Id. at 98, 106 S.Ct. at 1724.

¶ 43. During voir dire conducted by the defendant, the following question was posed and answered as follows:

Q. Anything about that relationship that would impact on your — let me ask this question once. When we identify y’all that have been patients of these doctors, my question is going to be is there anything about that relationship whether it was how did, the way that doctor treated you, your bill, anything of that — anything of any sort that would cause you difficulty in serving on this case.
Gamble Brothers & Archer Clinic is not a defendant in this case, only Dr. Beckham. So you know, we don’t want anybody out there that wants to get back at Dr. Merbitz, or get to Dr. Austin, you know, upset with one of them. That’s just not an issue here. Ms. Grigsby, anything about your former relationship, if you will, with the clinic that would cause you any difficulty?
A. (Shirley Grigsby) No.
Q. Were you satisfied with the services that the clinic provided?
A. Yes, I was.
* * * *
Q. Let’s go back here to Ms. Williams. I wasn’t — I’m sorry. Clinic patient. Yes, ma’am?
A. (Evelyn Williams) I went to Dr. Austin several years ago. I been to Dr. Curry if I have a urology problem. That’s been about '95 since I been there. If I have a problem, I go to Dr. Curry.
Q. Anything about your relationship with the clinic that would make it hard for you to be a juror?
A. No.

(emphasis added). After the voir dire examination was concluded, the following occurred:

The Court: Any for cause from the defendant?
Mr. Williams: There are, your Honor. Your Honor, the defendant challenges for cause Juror No. 1, Shirley B. Grigsby.
The Court: Is there objection?
Mr. McTeer: Yes, there is.
The Court: State your challenge.
Mr. Williams: Your Honor, we asked Ms. Grigsby questions which elicited answers indicating that she was a former patient of the clinic. Our records — -we have the appropriate person here and available to testify, if the Court wishes to hear testimony, but that Ms. Grigsby’s account at one point was turned over to a collection agency by the clinic for nonpayment of that account. I asked her specifically whether there was anything about the relationship with the clinic including the bill — that was my general question including the bill-which created any concern. She did not disclose the fact that her bill had been turned over for collection, and that causes us a concern regarding a potential juror — I think the fact that the patient, either the clinic patient who was turned over for collection, will disqualify her even if she had brought that out. On those two reasons we challenge her. And, as I say, we have the appropriate person here to testify who can verify that she turned over for collection for an unpaid account.
The Court: What does the plaintiff say?
Mr. McTeer: Your Honor, they knew this. They did not ask her the specific question either privately or otherwise. The witness knew that and she specifically said this was not a problem and would not cause her difficulty in service. At this point in time she’s indicated clearly based upon the facts that she can in fact testify. The mere fact that at some point in time she had an account that was in arrears is not a basis for her to be eliminated. For all we know the account has been taken care of, and they all live happily ever after.
The Court: Well, for failure to disclose it I’ll excuse her for cause.
Mr. McTeer: Your Honor, she wasn’t asked to disclose it.
The Court: She was asked if there was a problem with the bill.
Mr. McTeer: There may have been, but she was not asked the specific question as to whether or not that problem had resulted in difficulty for her.
The Court: Well, I’ll excuse her for cause. All right, are there others?
* ❖ * *
Mr. Williams: Evelyn Williams, and this is the same as before, that Ms. Williams, who has identified relationships with Dr. Curry. She’s been a patient of Dr. Beckham [and] Dr. Austin. Her child has been a patient of Dr. Austin. Her account was turned over for collection, your Honor. I asked this lady whether or not there was any problem with her inaction with the clinic including a bill. She failed to disclose the fact that she’d been turned over for collection. This is also the lady who stated that he had been to Mr. McTeer’s office — I think her words were — for advice.
The Court: Is there objection to that?
Mr. McTeer: Yes, there is.
The Court: All right, I’m going to strike her for cause because I do recall that you specifically questioned her on the failure to disclose it. Are there others.

¶44. The defendant also sought to strike jurors James Sanders, Robert Henderson, Louise Wells, and Jeannette Conguista for cause based on their failure to disclose that their clinic accounts had been turned over to a collection agency. However, the trial judge denied the strikes for cause because they were not asked specifically and individually about their accounts. The plaintiffs raised that African-American potential jurors were being struck on this basis and objected several times. Their attorney made the following objections:

That’s another then basis for my objection, your honor, because it was not made clear during the course of any questioning if they were talking about Dr. Beckham or talking about the clinic. I imagine we could go as far to say that any bill to any one of the two would be a basis. First they come in and they claim the fact that Dr. Beckham is a defendant in this case and not the clinic. But now they come forward and they say because these individuals had a bill owed to the clinic, that should be the basis of withdrawal. And I’ll point out for the record that the people who seem to be knocked off this jury for this reason are all African-American.
* * * *
But may it please the Court, I’m asking specifically, Judge, that the Gamble Brother Clinic, since they’re taking an active role in this, be required to put forth the names of each and every juror on this panel who in fact supposedly did not pay their account on time. Because I want to find out if any white people in this group and that whether or not only blacks are being excluded in this fashion, because so far it is only black people so affected.
* * * *
Objection. Another African-American being striken from this list of supposed accounts with this nonparty to this action. And also, your Honor, we’ll point out the fact even though this witness may have been a personal friend, as was Ms. Coleman, as was Mr.' — -well, we’ve already — we didn’t have to deal with the other gentleman' — -as was Mr. Coleman, it is clear that he said over and over and over again that he could be fair despite intense questioning from counsel opposite.

¶ 45. Evelyn Smutzer, the Administrative Secretary for Gamble Brothers & Archer Clinic, was called to testify regarding the accounts of the potential jurors. She testified that she had a list of fifteen potential jurors whose accounts had been turned over to collections.

¶ 46. Here, the question posed by the defense was very general and too broad to strike any juror for cause. In fact, the defendant is being rewarded for questions which he did not ask. In Mack v. State, 650 So.2d 1289, 1298 (Miss.1994), a potential black male juror was struck for failure to be employed, while the State accepted a white female juror who was also unemployed. The prosecutor failed to voir dire on the status of his employment. The court held that “nothing about the facts of this case suggests that a juror’s employment status should be an issue.” Id. This Court held that the failure to voir dire weighed against the State. Id. “The failure to voir dire usually comes in to play when the prosecutor expresses some suspicion or uncertainty about the true situation involving the juror, such as when he “believes” that the juror is related to a criminal, or has been involved in some activities which might engender a negative attitude toward the defendant. This factor is closely related to the lack of an evidentiary basis.” Id. The defendant could simply have posed a direct, pointed or specific question to jurors Grigsby or Williams about their accounts being turned over to collections. Clearly, he came armed with a list of delinquent accounts and a witness to testify in support thereof. All of which, he never bothered to disclose to plaintiff, to the appropriate juror during voir dire or to anyone else prior to his motion to strike those jurors for cause. Armed with an arsenal of documentary evidence and witness testimony, he failed to give the veniremen an opportunity to confirm or deny his allegations that they were biased.

¶ 47. In Mack, a juror was struck for having written bad checks. The appellant argued that the prosecutor violated Uniform Circuit Court Criminal Rule 4.06 by failing to disclose that information prior to voir dire. Id. at 1299. We held that failing to give a party opponent information on prospective jurors was not a violation of Rule 4.06 Id. However, this Court also held that an attorney may not, “with impunity, withhold information concerning a prospective juror which impacts upon the juror’s ability to be fair and impartial.” Id. We did not extend Rule 4.06 because there was no claim of a failure to disclose information impacting upon a juror’s ability to be fair and impartial. See Id. In the instant case, we have such a claim.

¶48. Here, the defendant should have disclosed the information regarding the accounts at least by way of voir dire examination. The defendant should not be rewarded for such conduct. If he had concerns about tainting the entire venire then he could have asked for the opportunity for individual voir dire of the jurors regarding these accounts. Every single strike for cause which was sought by the defendant based on his claim of delinquent accounts was directed at an African-American juror.

¶ 49. The matter of the delinquent accounts was clearly a pretext which allowed for the systematic exclusion of African-Americans from the jury. Those jurors were excluded for failure to disclose a matter about which they were not asked. That is unfair, unjust and improper. Recognizing the impropriety of racial bias in the courtroom, we hold the race-based exclusion violates the equal protection rights of the challenged jurors. Edmonson, 500 U.S. at 616, 111 S.Ct. at 2080.

¶ 50. It is fundamentally unfair in our system of jurisprudence for a party to unilaterally obtain privileged information about members of a jury pool and then, without revealing it to the other side prior to voir dire and without making any inquiry during voir dire, subsequently use that information to justify a strike against a potential juror. This method deprives the opponent of any opportunity to check the veracity, accuracy or truth of the information which is being used as a basis to justify a challenge.

McRAE, P.J., AND DIAZ, J., JOIN THIS OPINION.

      . The complaint and the amended complaint contained no allegations of inaccurate medical records or a reference to the note.

      . The caption of the Ventons’ issue states in part that "the court erred in denying plaintiffs' motion JNOV or for new trial because the jury verdict was against the overwhelming weight of the evidence ...” However, the brief addresses only the weight of the evidence, not the sufficiency of the evidence. Accordingly, the weight of the evidence and new trial issue will be solely addressed on appeal.


author: IRVING, J., for the court.

text:
    William Wayne STROHM, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01134-COA.
    Court of Appeals of Mississippi.
    Feb. 18, 2003.
    Rehearing Denied May 13, 2003.

      Cynthia Ann Stewart, Jackson, attorney for appellant.
    Office of the Attorney General, by Charles W. Maris, attorney for appellee.
    Before THOMAS, P.J., IRVING and MYERS, JJ.
   IRVING, J., for the court.

¶ 1. William Wayne Strohm was convicted in the Circuit Court of Winston County for the burglary of a dwelling. Feeling aggrieved by the judgment entered against him, Strohm appeals and asserts the following issues: (1) whether the trial court erred by not granting him a continuance to permit him to shower, shave, and have appropriate attire for the court proceedings, (2) whether the trial court erred by allowing the prosecution to admit a photograph of the alleged crime scene not provided to him until the day before trial, (3) whether the trial court erred when it forced him to display his tattoos as a part of an in-court identification by the alleged victim in violation of Strohm’s rights, (4) whether the trial court erred when it failed to give his requested instruction on the lesser-included offense of trespass, (5) whether the trial court erred when it overruled his objections to the court’s consideration during sentencing of uncertified offenses allegedly committed by Strohm, and (6) whether the State engaged in an improper closing argument.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. On November 28, 2000, at approximately seven o’clock in the morning, Mrs. Joni Miller left her residence in Sturgis, Winston County, Mississippi, to take her toddler to the doctor. When she returned between nine and ten o’clock that morning, she saw a strange vehicle parked in her driveway next to her front porch. She then saw Strohm, whom she did not know, come out of her home. Strohm ran down the porch, got into his car, and attempted to leave the driveway. Mrs. Miller blocked Strohm’s path with her truck and asked him what he was doing. Strohm told Mrs. Miller that he was looking for a Mend, someone named Morgan. Mrs. Miller then noticed that the door facing around her front door had been damaged, and the door appeared to be kicked in. She asked Strohm, ‘Well, have you just busted up in my house?” Strohm replied, “No, ma’am, the door was unlocked.” He then apologized for having entered her house. Mrs. Miller assured Strohm that she always locked and checked the doors.

¶4. After taking note of Strohm’s car license plate number, she moved her truck and let him out the driveway. She then proceeded to the front porch of her home and examined the damaged door facing. On the floor of her living room, she found three guns and a set of golf clubs propped against her coffee table. All of these items had been in a back bedroom in her house when she left to go to the doctor. She called the sheriffs department.

¶ 5. About three weeks later, Strohm was arrested and charged with burglary of the Miller home. He was tried later and convicted of one count of burglary.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Granting of Continuance

¶ 6. On the day Strohm was set for trial, he requested a continuance in order to allow him to shower, shave, and change clothes. This request was denied by the court.

¶ 7. Strohm argues that the large Rebel flag on his shirt and his unkempt appearance prejudiced him in the same way that gang emblems can be prejudicial. Strohm also emphasizes that the jury consisted of four Black and eight White jury members. Because the Rebel flag is perceived as an offensive and racist emblem to the Black community, Strohm proclaims his clothes seriously prejudiced his trial; therefore, he contends, the court erred in denying his motion for a continuance.

¶ 8. “[T]he decision whether to grant or deny a continuance is a matter left to the sound discretion of the trial court.” Burns v. State, 729 So.2d 203, 213 (¶ 29) (Miss.1998) (citing Walker v. State, 671 So.2d 581, 592 (Miss.1995)). Unless manifest injustice is evident from the denial of a continuance, this Court will not reverse. Id. Further, “the denial of a continuance in the trial court is not reviewable unless the party whose motion for continuance was denied makes a motion for a new trial on this ground.” Walker, 671 So.2d at 592 (citing Metcalf v. State, 629 So.2d 558, 562 (Miss.1993)).

¶ 9. The trial judge did not see anything about the way Strohm was dressed that would be inappropriate for trial. Strohm had on a T-shirt with a Rebel flag on its front and back, sweat pants, and tennis shoes. The judge found the Rebel flag on the front of his shirt to be both too small and faded to be recognizable by the jury and that the flag on his back would never be visible to the jury during trial. He gave Strohm the option to turn his shirt inside out; but Strohm refused. The judge also acknowledged that Strohm knew as early as a day before trial that he would have his hearing but made no arrangements to have family members bring him clothes. The judge also pointed out that Strohm chose the clothes he wore to trial.

¶ 10. The judge further noted that Strohm had about a two day’s growth of beard on his face. He again explained that Strohm had sufficient notice of the trial, and therefore, he could have shaved if he had wanted. The judge also found that Strohm’s hair was neatly combed, and that he appeared generally clean. Consequently, the trial judge found that Strohm did not look unpresentable for trial purposes.

¶ 11. Strohm has failed to show any manifest injustice in the trial court’s resolution of this issue; therefore, he has failed to demonstrate that the trial court abused its broad discretion when it denied his motion for a continuance in this instance. This issue lacks merit.

2. Admission of Photograph

¶ 12. Strohm argues that the trial court erred when it admitted a photograph of the alleged crime scene. The photograph showed Mrs. Miller’s property stacked in the front room of her house after it was allegedly burglarized. Strohm explains that his theory of defense was that he committed trespass instead of burglary. Strohm acknowledges and protests his receipt of the photograph the day before trial and the trial court’s decision to grant him only a brief continuance to question Mrs. Miller about the photograph. Therefore, Strohm proclaims that the trial court did not give him adequate time to reevaluate his theory of defense upon the admittance of the photograph.

¶ 13. The admission of evidence is within the discretion of the trial judge. Berry v. State, 823 So.2d 574, 576 (¶ 6) (Miss.Ct.App.2002) (citing Parker v. State, 606 So.2d 1132, 1137 (Miss.1992)). A decision of the trial court to admit evidence must be upheld unless there is an abuse of discretion. Id. (citing Walker v. Graham, 582 So.2d 431, 432 (Miss.1991)).

¶ 14. This Court recognizes Strohm’s contention on this issue as an assertion of a discovery violation by the State. The language of URCCC 9.04(1) states:

If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows:
1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and
2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the nondisclosed evidence or grant a mistrial.
3. The court shall not be required to grant either a continuance or mistrial for such a discovery violation if the prosecution withdraws its efforts to introduce such evidence.

URCCC 9.04(1) (emphasis added).

¶ 15. Here, there was no failure by the State to follow discovery procedures. To be sure, we look to Robinson v. State, 662 So.2d 1100 (Miss.1995). In Robinson, the prosecution produced a letter written by the defendant to the victim. Id. at 1102. In the letter, the defendant apologized and asked for forgiveness for his actions. Id. The prosecution received the letter the day-before trial began and disclosed the letter to the defense. Id. The defense made no objection to the letter until the prosecution attempted to introduce the letter at trial. Id. at 1103. The defense maintained, outside the presence of the jury, that the letter was “extremely prejudicial to his client and asked for a mistrial.” Id. The judge allowed the defense a short recess to examine the letter. Id. at 1104. The Mississippi Supreme Court ruled that Robinson was allowed a “reasonable period of time in which to review the letter.” Id.

¶ 16. In the case sub judice, Mrs. Miller took the photograph on the day of the crime shortly after the investigator had left the crime scene. She kept the photograph in her possession. When the State interviewed Mrs. Miller in preparation for trial, Mrs. Miller informed the State for the first time of the photograph’s existence. There is no evidence that the State or Investigator Robertson had knowledge or possession of the picture before this date. When the State became acquainted with the photograph’s existence, it immediately contacted Strohm’s counsel regarding the photograph. On the day of trial, Strohm objected to the photograph before the proceedings began. The judge allowed Strohm’s counsel a brief continuance to question Mrs. Miller about the photograph before she took the stand. The judge subsequently admitted the photograph into evidence.

¶ 17. “Trial judges have wide latitude in deciding whether to grant continuances, and that decision is left to the sound discretion of the trial judge. See Adams v. State, 772 So.2d at 1014 (¶ 16) (citing Lambert v. State, 654 So.2d 17, 22 (Miss.1995)). Here, the trial court carefully considered the totality of the circumstances: what the photograph depicted, the abruptness of the photograph’s appearance, who presented the photograph, and the feasibility of a continuance past the scheduled trial date. Ultimately, the trial judge concluded that a continuance was not warranted. As previously observed, the trial judge allowed adequate time for Strohm to interview Mrs. Miller prior to her testifying. We find no abuse of discretion by the trial court.”

¶ 18. We also note that even if a discovery violation had occurred, Strohm’s failure to request a continuance after interviewing the witness would proeedurally bar review of this issue on appeal. See URCCC 9.04(1); see also Snelson v. State, 704 So.2d 452, 458 (¶ 35) (Miss.1997).

S. Display of Strohm’s Tattoos

¶ 19. Strohm contends the trial court erred in forcing him to show his tattoos as part of in-court identification proceedings. He explains that the court’s actions violated his Fifth Amendment right not to incriminate himself and was unnecessary since Mrs. Miller had already identified him. Strohm also asserts that the forced display of his tattoos prejudiced the jury. He cites Randall v. State, 806 So.2d 185 (Miss.2001) and Goree v. State, 748 So.2d 829 (Miss.Ct.App.1999), as authorities for his position.

¶ 20. Strohm’s argument fails on two grounds. First, in his appellate brief, Strohm makes a different argument than he made in the trial court when he objected to being forced to display his tattoos. During trial court proceedings, Strohm’s counsel objected, not on Fifth Amendment grounds, but on the ground that persons on the jury might have religious objections to the tattoos and adjudge him guilty accordingly. In Woodham v. State, the Mississippi Supreme Court held that the assertion of “grounds for an objection on appeal that differs from the ground given for the objection at the trial level does not properly preserve the objection for appellate review.” Woodham v. State, 779 So.2d 158, 161 (¶ 12) (Miss.2001) (citing Paracelsus Health Care Corp. v. Willard, 754 So.2d 437, 441 (Miss.1999); Ballenger v. State, 667 So.2d 1242, 1264 (Miss.1995)). Therefore, Strohm’s appeal of the trial judge’s ruling regarding this issue is procedurally barred.

¶ 21. Secondly, Strohm’s contention lacks merit. According to Burns v. State, 729 So.2d 203, 216 (¶ 52) (Miss.1998), “[a] mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside [the] protection [of the Fifth Amendment].” Id. (citing Gilbert v. California, 388 U.S. 263, 266-67, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967)) (quoting United States v. Wade, 388 U.S. 218, 222-23, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)). Furthermore, our supreme court has adopted the United States Supreme Court’s reasoning that “the Fifth Amendment privilege against self-incrimination protects an accused from being compelled to testify against himself, that is, to provide evidence of a testimonial or communicative nature, but does not extend to the securing of real or physical evidence.” Id. at 216 (¶ 54) (citing Baylor v. State, 246 So.2d 516, 519 (Miss.1971)). Strohm’s tattoo was a physical characteristic of his body and was not testimonial or communicative in nature. Therefore, his tattoo was outside the scope of Fifth Amendment protection.

¶ 22. Moreover, Strohm’s citation of Goree and Randall does not assist Strohm in his argument. Goree dealt with whether evidence of a defendant’s gang affiliation, such as gang-related tattoos, was admissible to prove his preparation, plan, intent, or motive in an aggravated assault case. Goree, 748 So.2d at 830-34 (¶¶ 5-6). Randall, on the other hand, addressed the admissibility of a defendant’s gang symbol tattoos and alleged gang membership to prove the existence of statutory aggravating factors of the commission of a crime. Randall, 806 So.2d at 218 (¶33). Both cases are clearly distinguishable from the case-at-bar. In our present case, there is no mention of gang affiliation of Strohm in relation to his crime, and Strohm’s tattoos were presented only for the purpose of physical identification. The trial court’s demand that Strohm display his tattoo for identification purposes was not error; therefore, Strohm’s contention lacks merit.

Ip. Denial of Lesser-Included-Offense Instruction

¶ 23. The standard of review employed by this Court in reviewing challenges to the grant or denial of jury instructions is that of viewing the instructions as a whole. Adams v. State, 772 So.2d 1010, 1015 (¶ 20) (Miss.2000) (citing Humphrey v. State, 759 So.2d 368, 380 (Miss.2000)). A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence. Agnew v. State, 783 So.2d 699 (¶ 6) (Miss.2001) (citing Humphrey v. State, 759 So.2d 368, 380 (Miss.2000); Heidel v. State, 587 So.2d 835, 842 (Miss.1991)). To warrant the lesser-included-offense instruction, a defendant must point to some evidence in the record from which a jury could reasonably find him not guilty of the crime with which he was charged and at the same time find him guilty of a lesser-ineluded offense. Adams, 772 So.2d at 1016 (¶ 22)(citing Toliver v. State, 600 So.2d 186, 192 (Miss.1992); Whitehurst v. State, 540 So.2d 1319, 1327 (Miss.1989); Harper v. State, 478 So.2d at 1021; Fairchild v. State, 459 So.2d 793, 799 (Miss.1984)).

¶ 24. Strohm’s request for an instruction on the lesser-ineluded offense of trespassing is without anchor in the evidence. Mrs. Miller’s testimony is irrefutable as to Strohm’s motive for entering her house. She testified she caught Strohm running out of her house, blocked Strohm in her driveway with her truck, and confronted him. She also testified that Strohm told her that her door was unlocked and that he was looking for his friend Morgan. However, the fact that Mrs. Miller’s door facing was partially destroyed and items were collected in one location in her living room overwhelmingly refutes Strohm’s assertion that he simply trespassed. Mrs. Miller testified that her door was locked and that her door facing was fully intact prior to her departure for the doctor’s office. Officer Jesse Robertson, investigator for the Winston County Sheriffs Department, corroborated Mrs. Miller’s testimony as to the condition of her door and the positioning of items intended to be taken by Strohm, the perpetrator.

¶ 25. Finally, Strohm did not testify in his defense nor did he procure “his friend Morgan,” a witness that would have been more accessible to the defense than the State. There was no evidence presented as to the identity of Morgan, whether he actually existed, or where he could be found.

¶ 26. Strohm’s account that he was at Mrs. Miller’s house looking for his friend Morgan cannot be squared with the physical and circumstantial evidence at the scene. No reasonable jury could have returned a verdict other than guilty as charged as to the burglary count; therefore, the trespass instruction was properly refused.

5. The Trial Court’s Consideration of Uncertified Prior Offenses

¶27. Strohm contends that the trial court committed reversible error when it considered his prior convictions to determine his sentence for the burglary conviction. He asserts “the court permitted introduction of uncertified copies of convictions for three aggravated burglaries, a grand larceny, and a burglary.” Apparently, Strohm objects because the State had not submitted certified copies of Strohm’s prior convictions from Tennessee to the court before his sentence was determined. He finally asserts Rules 902(4), 1001, and 1002 of the Mississippi Rules of Evidence require certified copies under the circumstances.

¶ 28. In Ferrell v. State, the Mississippi Supreme Court reiterated the law enunciated in Jackson v. State:

In Jackson, we stated, “Our law has long provided that the imposition of sentence following a criminal conviction is a matter within the discretion of the Circuit Court, subject only to statutory and constitutional limitations. So long as these are not offended, we rarely interfere. Moreover, the Court is not limited to the consideration of evidence presented of record at trial when imposing sentence.”

Ferrell v. State, 810 So.2d 607 (¶ 24) (Miss.2002) (citing Jackson v. State, 551 So.2d 132, 149 (Miss.1989)).

¶ 29. Here, the record does not reveal that the uncertified copies were introduced for habitual offender sentencing enhancement. Rather, the prosecution announced to the court that the certified copies of Strohm’s former convictions had not arrived from Tennessee; therefore, the State would not be pursuing a habitual offender sentence. However, the prosecutor did inform the court that Strohm had been convicted of the previous offenses in Tennessee.

¶ 30. We find that the trial court was not in error in taking judicial notice of its own court records, considering the prior convictions of Strohm and viewing other pending charges against him, as this is not specifically prohibited by statute or the Mississippi Constitution. Finally, we note that Strohm’s only cited authorities, Rules 902(4), 1001, and 1002 of the Mississippi Rules of Evidence, do not apply to a sentencing hearing. M.R.E. 1101(b)(3).

6. Appropriateness of Closing Argument

¶ 31. Strohm argues that the State engaged in an inappropriate closing argument. Strohm’s complaint centers on the State’s juxtaposition of Mrs. Miller’s testimony with his. Mrs. Miller testified she came home, saw Strohm leaving her house, and confronted him. Strohm claimed he was looking for a friend named Morgan. In its closing, the State argued, “If this story about this friend Morgan were true, he would be here.” At that point, defense counsel objected to “the attempt by the State to shift the burden of proof to the defendant.” The court overruled the objection and permitted the State to continue. The State proceeded:

Where’s Morgan? — If that were true, I would hope that if I had a friend and I was on trial for something this serious, he would be here to tell you all that he lived there or he lived in that area or that he lived anywhere in this state where the defendant might reasonably think he was in the house.
I probably think he doesn’t exist. I don’t have any reason to know that. I don’t think you do, either. This is just a bunch of bull, and Mr. Majors knows it. That’s why he’s trying to sway you with all these comments he knows to be improper. That’s why he’s trying to confuse you with all this evidence that doesn’t exist.
The simple honest evidence in this case is the defendant, William Strohm, was going to steal these guns if Mrs. Miller hadn’t come home. Period. He is guilty. Period. Thank you.

¶ 32. “The purpose of a closing argument is to fairly sum up the evidence. The State should point out those facts upon which the prosecution contends a verdict of guilty would be proper.” Rogers v. State, 796 So.2d 1022, 1027 (¶ 15) (Miss.2001) (citing Clemons v. State, 320 So.2d 368, 370 (Miss.1975)). The prosecutor may comment upon any facts introduced into evidence, and he may draw whatever deductions and inferences that seem proper to him from the facts. Id. (citing Bell v. State, 725 So.2d 836, 851 (Miss.1998)). Failure of either party in a criminal prosecution to call a witness equally accessible to both is not a proper subject for comment by either. Doby v. State, 557 So.2d 533, 538-39 (Miss.1990). However, such comment is not improper where the witness was more available to and in closer relationship with the other party. Ross v. State, 603 So.2d 857, 864 (Miss.1992); Doby, 557 So.2d at 539 n. 5.

¶ 33. The evidence is undisputed that Strohm entered Mrs. Miller’s home. When confronted by Mrs. Miller, Strohm explained he was looking for his friend Morgan. The trial transcript reflects the defense first brought the existence of Morgan into trial upon defense counsel’s opening statement. Therefore, the primary theory of Strohm’s defense depended on the existence of Morgan. Moreover, defense counsel acknowledged Morgan to be the friend of Strohm. This association indicates a close relationship to Strohm. Unquestionably, such a witness is not equally available to the prosecution; therefore, the prosecution had every right to comment on Strohm’s failure to call him. We find no error occurred in this instance.

¶ 34. THE JUDGMENT OF THE CIRCUIT COURT OF WINSTON COUNTY OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH SENTENCE TO RUN CONSECUTIVELY TO ANY SENTENCE PREVIOUSLY IMPOSED, IS AFFIRMED. ALL COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANT.

MeMILLIN, C. J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ„ CONCUR.

      . Strohm actually cites Goree v. State, 794 So.2d 297 (Miss.Ct.App.2001); however, it is obvious from the text of the cited authority that that is the wrong Goree. Strohm meant to cite, or should have cited, Goree v. State, 748 So.2d 829 (Miss.Ct.App.1999).


author: SOUTHWICK, P.J., for the court.

text:
    Albert EDMOND, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-00225-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.
    Rehearing Denied May 13, 2003.
    Albert Edmond (Pro Se), attorney for appellant.

      Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   SOUTHWICK, P.J., for the court.

¶ 1. Albert Edmond was convicted of forcible rape and sentenced to life in prison in 1976. In June 2000, Edmond filed a petition for writ of habeas corpus. The lower court characterized Edmond’s petition as a motion for post-conviction relief and found that Edmond was time-barred from proceeding. Edmond appeals. Since we agree with the trial court, we affirm.

DISCUSSION

¶ 2. The crux of Edmond’s argument is that his petition was incorrectly decided under Mississippi’s post-conviction proceedings statutory scheme. Miss.Code Ann. §§ 99-39-1 through 99-39-27 (Rev. 2000). The lower court noted that though “petitioner has styled this matter as a Writ of Habeas Corpus,’ the subject matter alleges that petitioner’s conviction is based upon a defective indictment. Thus, this petition should be treated as a matter for post conviction relief.”

¶ 3. Regardless of label, matters cognizable under the post-conviction relief statutes should be decided under those rules and limitations.

[Pjurely collateral post-conviction remedies attacking a judgment of conviction or sentence should be sought under authority of the PosL-Convietion Collateral Relief Act since that Act, in the pure postconviction collateral relief sense, is arguably “post-conviction habeas corpus renamed.” See Bell, Habeas Corpus: The “Great Writ” in Mississippi State Courts, 58 Miss.L.J. 25, 28 (1988). Arguments over nomenclature should be avoided so long as the Act affords the relief formerly available by habeas corpus in this limited context. Id.

Walker v. State, 555 So.2d 738, 740 (Miss.1990). Edmond’s substantive claim attacking the underlying indictment was properly construed by the trial court as a “purely collateral post-conviction remedy” and is therefore governed by the Uniform Posi>-Conviction Collateral Relief Act. Miss. Code Ann. §§ 99-39-1 through 99-39-27 (Rev.2000).

¶ 4. The problem for Edmond, then, is the applicable statutory time restraints for motions under this post-conviction relief regime. Inmates have three years “after the time in which the prisoner’s direct appeal is ruled upon by the Supreme Court of Mississippi....” in which to file their petitions. Miss.Code Ann. § 99-39-5(2) (Rev.2000). The affir-mance of Edmond’s conviction occurred in 1975. Edmond v. State, 312 So.2d 702 (Miss.1975). When a conviction such as Edmond’s predates the adoption of the post-conviction relief statutes in 1984, the inmate had three years in which to file their petition for relief. Odom v. State, 483 So.2d 343, 344 (Miss.1986). Therefore, Edmond’s last opportunity to seek post-conviction remedies ended in 1987.

¶ 5. Furthermore, even a finding by the circuit court that Edmond’s claim was a true writ of habeas corpus would not have cured his untimeliness. The three year statute of limitations does not cause a suspension of the writ of habeas corpus. Cole v. State, 608 So.2d 1313, 1318-20 (Miss.1992), cert. denied 508 U.S. 962, 113 S.Ct. 2936, 124 L.Ed.2d 685 (1993). What the post-conviction relief statutes provide is a procedural mechanism within which to bring claims recognizable under a variety of writs. The legislature may impose reasonable limitations upon the exercise of constitutional rights. Id. Among the reasons that these limits are reasonable is that exceptions to the three year statutory bar exist, but none of them have been shown to apply here. Miss.Code Ann. § 99-39-5(2) (Rev.2000).

¶ 6. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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


author: MYERS, J., for the court.

text:
    Robert SMITH, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00383-COA.
    Court of Appeals of Mississippi.
    March 25, 2003.
    Rehearing Denied May 13, 2003.

      Robert Smith (Pro Se), attorney for appellant.
    Office of the Attorney General by: Charles W. Maris, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   MYERS, J., for the court.

¶ 1. On July 18, 2001, Robert Allen Smith pled guilty to the armed robbery of the Western Sizzlin restaurant in Bates-ville, Mississippi. The Circuit Court of the Second Judicial District of Panola County, the Honorable Andrew C. Baker presiding, sentenced Smith to twenty years in the custody of the Mississippi Department of Corrections, with thirteen years suspended.

¶2. On January 4, 2002, Smith filed a motion for post-conviction relief. The trial court dismissed the motion and Smith appealed. We affirm.

Issues

I. WHETHER SMITH WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL.

II. WHETHER SMITH’S GUILTY PLEA WAS ENTERED KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY.

Legal Analysis

I. WHETHER SMITH WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL.

¶ 3. In Leatherwood v. State, 473 So.2d 964 (Miss.1985), the Mississippi Supreme Court adopted the test promulgated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). One claiming ineffective assistance of counsel bears the burden of proving: (1) his counsel’s performance was deficient; and (2) the outcome of the trial would have been different, but for the deficiency in performance. Id. at 687, 104 S.Ct. 2052. This is a high standard, since we presume that an attorney’s conduct is “within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. Further, we view the conduct in the totality of the circumstances to discover if any errors made by the attorney were “outside the range of professionally competent assistance.” Id. at 690, 104 S.Ct. 2052.

¶ 4. Smith argues that his court-appointed counsel was ineffective since the attorney “failed to investigate his arrest and see that the statement given by [Smith] was inadmissable due to investigators [sic] tricks.... ” Additionally, Smith alleges his attorney failed to investigate Smith’s mental competency.

¶ 5. “Tricks” are permissible during police questioning, as long as they do not “rise to the level of compulsion or coercion.” Illinois v. Perkins, 496 U.S. 292, 297, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990). The trick Smith alleges was the promise of freedom if he signed a statement confessing to the armed robbery. Assuming arguendo that the police did make such a promise and it rises to the level of compulsion or coercion, Smith still does not pass the Strickland test. He has not shown that the outcome of his trial would have been different but for this alleged failure to meet professional standards. It is most likely that the trial’s result would be the same since Smith’s partner in the robbery pled guilty and implicated Smith. Additionally, this course of action could be said to fall within trial strategy, which is well within the attorney’s purview. Scott v. State, 742 So.2d 1190, 1196(¶ 14) (Miss.Ct.App.1999).

¶ 6. We see no merit to this issue, and therefore we affirm the trial court’s decision as it applies to this issue.

II. WHETHER SMITH’S GUILTY PLEA WAS ENTERED KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY.

¶7. A defendant must execute such a waiver intelligently and understandingly. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Uniform Circuit and County Court Rule 8.04(A)(3) states a plea “is not voluntary if induced by fear, violence, deception, or improper inducements. A showing that the plea of guilty was voluntarily and intelligently made must appear in the record.”

¶ 8. A review of the transcript shows this issue to be completely without merit. The trial judge thoroughly questioned Smith to insure that he made an informed decision. He explained that by pleading guilty, Smith could expect to receive a sentence between three years and life. Smith stated that he thought he had sufficiently discussed the issue of his plea with his lawyer.

¶ 9. Smith affirmed he was not under the effects of alcohol or illegal drugs. While he had been treated for “mental or emotional sickness,” he stated it had been two and a half to three years ago, and he did know right from wrong.

¶ 10. Judge Baker thoroughly explained the trial process so that each defendant would know just what he was giving up by pleading guilty. Smith stated that no one had lied or tricked him into pleading guilty, and attested that he was freely admitting his guilt. Under these facts, we find that Smith did knowingly, intelligently, and voluntarily plead guilty.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF THE SECOND JUDICIAL DISTRICT OF PANOLA COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO PANOLA COUNTY.

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


author: BRIDGES, J., for the court.

text:
    Ruby Joyce Stines LADNER, Appellant, v. Luther LADNER, Appellee.
    No. 2001-CA-01155-COA.
    Court of Appeals of Mississippi.
    April 8, 2003.

      John D. Smallwood, Tupelo, attorney for appellant.
    David Alan Pumford, Jackson, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   BRIDGES, J., for the court.

¶ 1. Now comes round two of the divorce proceeding between Ruby Joyce Stines Ladner (Joyce Ladner) and Luther Lad-ner (Luther). They filed for divorce in the Pearl River County Chancery Court. The chancellor granted Luther’s motion for a new trial after finding that Joyce and several of her witnesses had perjured themselves, and entered amended findings of fact, conclusions of law, and a new final judgment on June 18, 2001. Joyce appealed without supersedeas bond for an increase in her portion of the marital property. This appeal now comes before this Court after a motion was filed by Luther to consolidate Joyce’s appeal from the divorce judgment and his appeal from the order of divestiture, which the supreme court denied. Ladner v. Ladner, No.2001CA-01771.

STATEMENT OF ISSUES

I. DID THE COURT ERR IN THE CLASSIFICATION OF ASSETS?

II. DID THE COURT ERR IN THE DIVISION OF MARITAL PROPERTY?

III. DID THE COURT ERR IN DENYING ALIMONY TO JOYCE LADNER?

IV. DID THE COURT ERR IN DENYING ATTORNEY’S FEES TO JOYCE LADNER?

FACTS

¶ 2. Luther and Joyce had been married twice with a previous divorce that lasted less than one year; in toto, their married life together lasted thirty years. The Lad-ners reared two children, both emancipated at the time of their second divorce. Luther Ladner has a high school education and significant business skills; Joyce Lad-ner has an eighth-grade education, and no significant job skills, as she remained a housewife during her marriage, although she did aid Luther in some farm work.

¶ 3. Joyce filed for divorce on grounds of habitual cruel and inhuman treatment and adultery. Ladner moved to join the Lad-ners’ son Prentiss Ladner (Prentiss) to the suit as a third-party defendant to quiet title to property transferred to Prentiss by Joyce, claiming that the property was part of the marital estate. The court granted the motion and following the trial granted Joyce a divorce on grounds of uncondoned adultery, and reserved a ruling on the division of marital property until the parties submitted proposed findings of fact and conclusions of law.

¶ 4. The parties submitted findings of fact and conclusions of law, and the court entered a final judgment on June 15, 2000. Luther filed a motion for JNOV or, in the alternative, a new trial on June 23. Luther alleged numerous errors in the findings of fact, and charged that Joyce and Prentiss as well as other witnesses for Joyce had perjured themselves regarding the nature of the property that Joyce had transferred to Prentiss. Luther maintained that it was indeed marital property. The chancellor granted Luther’s motion, and following a new hearing adjudged that Joyce and Prentiss had perjured themselves, and the court amended its findings of fact, conclusions of law, and final judgment to reflect the results of the new hearing.

¶ 5. The property division was substantially revised. The court found that the eighty acres that Joyce had transferred to Prentiss had been marital property. Additionally, the court found that Luther did not hide assets from the sale of farm inventory and equipment from Joyce, as she had argued. The court retracted its initial award of $80,000 from the dissolution of the farm, and awarded Joyce the eighty acres as a portion of her marital property.

STANDARD OF REVIEW

¶ 6. This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Flechas v. Flechas, 791 So.2d 295, 299(¶ 7) (Miss.Ct.App.2001).

ANALYSIS

I. DID THE COURT ERR IN THE CLASSIFICATION OF ASSETS?

II. DID THE COURT ERR IN THE DIVISION OF MARITAL PROPERTY?

¶ 7. This Court combines these two issues because they are based on the same principles of law. This Court’s scope of review in domestic relations matters is limited. Montgomery v. Montgomery, 759 So.2d 1238, 1240(¶ 5) (Miss.2000). “Our familiar standard holds that, absent an abuse of discretion, we will uphold the decision of the chancellor. To disturb the factual findings of the chancellor, this Court must determine that the factual findings are manifestly wrong, clearly erroneous or the chancellor abused his discretion.” Hollon v. Hollon, 784 So.2d 943, 946(¶ 11) (Miss.2001).

¶ 8. Joyce assigns as error the court’s determination that the eighty acres of property that she had conveyed to Pren-tiss constituted part of the marital property. Joyce mistakenly relies on the first findings of fact offered by the court. The court plainly explains that its initial findings, that the eighty acres was not marital property, was based on perjured testimony, and that in the subsequent hearing the proof showed that the property was part of the marital estate. Joyce fails to explain where the court erred or even cite to the amended findings of fact, conclusions of law, and final judgment.

¶ 9. The same exact thing can be said for the second issue. The court’s division of marital property changed slightly from its initial determination, following the second trial where Joyce and Prentiss’ perjury came to light. Based on the proof presented by Luther, the court determined that Joyce was not owed $80,000 from the sale of farm inventory and equipment, and that the eighty acre parcel she had conveyed to Prentiss remained a part of the marital property. In the amended new judgment, the court assigned those eighty acres as part of Joyce’s portion of the marital estate. Again, Joyce does not provide evidence of clear error, and she does not address the role that her perjury played in the amended findings of fact, conclusions of law, and final judgment.

¶ 10. The same conclusion applies to both of these issues. Since Joyce failed to consider the amended findings of fact, conclusions of law and final judgment, but instead relies on the original judgment, her issues referring to that original judgment are considered moot and are not to be reviewed by this Court. Sheldon v. Ladner, 205 Miss. 264, 38 So.2d 718, 720 (1949).

III. DID THE COURT ERR IN DENYING ALIMONY TO JOYCE LADNER?

¶ 11. In Mississippi, the award of alimony lies within the sound discretion of the court. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). The record indicts that the Armstrong factors were taken into consideration in the conclusions of law by the chancellor and are therefore considered forth with. Further, alimony is not to be awarded when the division of the marital assets provides adequately for the maintenance of both parties. Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994). One of the many factors in determining an award of alimony is fault or misconduct. Crowe v. Crowe, 641 So.2d 1100, 1105 (Miss.1994). Joyce argues that Luther’s fault in concealing a portion of the proceeds from the sale of farm assets was so great that she should be entitled to an award of those monies.

¶ 12. Joyce again willfully ignores the fact that the chancellor found that she had perjured herself, which resulted in the amended final judgment lessening her award. Joyce does not demonstrate that she did not perjure herself, and does not even address her own fault, going so far as to suggest to this Court that an appropriate remedy might be to increase her share of the marital assets, rather than awarding alimony. Despite her perjury, Joyce received the contested eighty acres as a portion of the marital assets due her; accordingly, we find that the chancellor did not err in denying Joyce alimony, as the proof does not support a finding of an abuse of discretion on the court’s part.

TV. DID THE COURT ERR IN DENYING ATTORNEY’S FEES TO JOYCE LADNER?

¶ 13. Joyce argues that the court erred in denying her an award of attorney’s fees because the court did not make a finding that she was able to pay her attorney’s fees. This is a fundamental misstatement of the law: if Joyce wanted to receive attorney’s fees, she should have presented evidence supporting that request. Benson v. Benson, 608 So.2d 709, 712 (Miss.1992). There is no evidence on the record of either Joyce’s inability to pay her attorney, nor of the difficulty of the case, nor of the time and labor involved in providing Joyce with adequate representation, nor of the customary charges for similar services in the community, as required. McKee v. McKee, 418 So.2d 764, 767 (Miss.1982). Consequently, we find that the court did not err in declining to award Joyce attorney’s fees.

CONCLUSION

¶ 14. Joyce Ladner assigns as error the court’s determination that the eighty acre parcel she conveyed to her son Prentiss was marital property. Joyce also argues that she is due alimony, that the court did not properly divide the marital estate, and that the court improperly denied her attorney’s fees. While making these arguments, Joyce conveniently ignores the fact that the court found that she had perjured herself, and that Prentiss had perjured himself, and that the court explicitly stated that the aforementioned perjury ultimately resulted in the changed division of the marital estate. Considering the curious event of the perjury and the unique absence of the second hearing and the amended findings of fact, conclusions of law, and final judgment from Joyce’s argument, as well as an absolute dearth of facts in support of that argument, we find that the chancellor did not err.

¶ 15. THE JUDGMENT OF THE CHANCERY COURT OF PEARL RIVER COUNTY IS AFFIRMED. ALL COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Robert W. WILES, Jr., Appellant, v. Deonne K. WILLIAMS, Appellee.
    No. 2001-CA-01373-COA.
    Court of Appeals of Mississippi.
    April 29, 2003.

      J. Mark Shelton, Tupelo, Heather Boren Emerson, attorneys for appellant.
    Raymond G. O’Neal, Fulton, attorney for appellee.
   IRVING, J., for the court.

¶ 1. The Chancery Court of Itawamba County rendered a $13,368.50 judgment against Robert Wiles, Jr. in favor of his ex-wife, Deonne K. Williams. Feeling aggrieved, Robert has appealed and argues the following issues which we quote verbatim:

A. The chancellor’s order denying petitioner’s request to retroactively modify child support based on the emancipation of the children was in error.
B. The chancellor’s order denying petitioner’s request to apply credit to any arrearage for the amounts petitioner paid directly to the children or directly for the benefit of the children was in error.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. Robert and Deonne were divorced in April of 1988. The parties have two children: Amanda whose birth date is July 12, 1979, and Robert, III(BJ) whose birth date is July 8, 1982. The final judgment of divorce provided in paragraph 4 that:

Robert Wiles, Jr., hereby is ordered to pay Deonne Wiles the sum of $350 per month as child support and maintenance of the parties’ minor children.... until each of the minor children have [sic] attained the age of eighteen (18) years. Should the minor children elect to attend college, then Robert Wiles, Jr., is hereby ordered to pay to each child the sum of $175 per month for the use and benefit of college tuition, books and necessary living expenses while each such child is attending college.

Other provisions of the final judgment ordered both parties to pay one-half of a reasonable amount for school clothing. Robert was ordered to maintain medical insurance on the children with both parties paying one-half of all medical, dental, hospital, and drug expenses not covered by the insurance.

¶ 4. Robert paid child support every month from February 1988 until January 1996. In January 1996, Amanda got married. The next month following Amanda’s marriage, Robert began paying half the amount ordered for child support. In July of 2000, BJ moved out of his mother’s house and began full-time employment.

¶ 5. Deonne sued Robert for contempt, past-due child support, medical, and dental bills. Robert responded by filing a petition for adjudication of emancipation and determination of child support arrearage. In his petition, Robert sought credit for money, over and beyond the court-ordered child support, that he gave directly to his children. Specifically, Robert wanted credit for vehicles that he had purchased for his children.

¶ 6. During the course of the proceedings, Robert and Deonne stipulated that Amanda became emancipated on January 2, 1996, when she got married and that BJ became emancipated on July 8, 2000. The remaining issues were decided by the chancellor.

¶ 7. The chancellor determined that the additional monies given directly to or on behalf of the children were expenditures which any normal father should make for his children, and for which Robert would not be entitled to receive any credit towards child support. In regards to the medical and dental expenses, the chancellor ordered Robert to pay $754 to Deonne which was half of the amount she incurred on behalf of the children.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Retroactive Modification of Child Support

¶ 8. Robert argues that it was error for the chancellor to refuse to retroactively modify child support and arrearage based on the emancipation of Amanda. He contends that the award of arrearage to Deonne creates a circumstance of unjust enrichment to her. He explains that Deonne only had BJ and not Amanda in the home with her when the majority of the arrearage accrued.

¶ 9. The standard of review in domestic relations case is well settled in the areas of divorce, alimony and child support. An appellate court is required to respect the findings of facts made by a chancellor if they are supported by credible evidence and are not manifestly wrong or clearly erroneous, provided that the proper legal standard was applied. Sumrall v. Munguia, 757 So.2d 279, 282 (¶ 12) (Miss.2000).

¶ 10. The issue presented before this Court is one that has been previously addressed in Mississippi case law. Essentially the issue is whether the emancipation of one or more of multiple children being supported by a child support decree entitles a parent or chancellor to retroactively reduce child support payment for the remaining children. See Nichols v. Tedder, 547 So.2d 766 (Miss.1989); Dept. of Human Servs. v. Fillingane, 761 So.2d 869 (Miss.2000).

¶ 11. When a parent is ordered to pay a specified amount periodically for the benefit of more than one child, the emancipation of one child does not automatically reduce the liability of the parent for the full amount. Schilling v. Schilling, 452 So.2d 834, 836 (Miss.1984).

¶ 12. Robert admitted that after Amanda got married, he, on his own volition, reduced by one half the amount of child support he was ordered to pay. Robert’s liability was not automatically reduced with Amanda’s emancipation. The final judgment in this case does not provide for an automatic reduction in child support upon one child being emancipated. Quite the contrary, the judgment provides that the support shall be paid “until each of the minor children have [sic] attained the age of eighteen (18) years.” Robert should have filed a petition to modify child support instead of unilaterally reducing his support payments.

¶ 13. Notwithstanding our pronouncement that Robert should have sought a modification of the support order, we are cognizant that a failure to seek a modification of a support order is not fatal in all circumstances. A court of equity may give credit to the non-custodial parent if the facts and circumstances .warrant it. Alexander v. Alexander, 494 So.2d 365, 367 (Miss.1986). In this case, however, the chancellor determined that no credit or relief was warranted. We cannot say that this decision was clearly erroneous.

¶ 14. Robert also seems to argue that the chancellor ordered him to pay child support for BJ after BJ was emancipated. Our review of the record indicates that is not the case. The chancellor specifically found:

The credible proof established through the testimony of Jeff Skinner, an attorney with the Department of Human Services, that as of May of 2000, Robert Wiles, Jr. is in arrears in his child support payments to Deonne K. Williams in the amount of $12,614.

The parties stipulated that BJ did not become emancipated until July 8, 2000.

¶ 15. Lastly, Robert contends that the chancellor erred in not giving him credit for monies that Robert paid directly to or for the benefit of the children. Robert testified that he provided additional financial support beyond child support payments such as purchasing each child their own vehicle as well as giving them extra money directly. Moreover, Robert asserts that Deonne waited four years to bring her contempt action and should be barred from seeking and receiving such arrearage. Conversely, Deonne argues that Robert is not entitled to equity since he has unclean hands by unilaterally reducing the child support payments.

¶ 16. As we have discussed earlier, the chancellor found that the expenditures Robert seeks credit for are those “which any normal father should make for his children, notwithstanding his court-ordered support obligations.” Following our standard of review, we do not find this finding to be manifestly wrong, clearly erroneous or that an erroneous legal standard was applied; therefore, we do not disturb this finding.

¶ 17. The issue regarding the length of time for bringing a contempt action for arrearage was addressed by the Mississippi Supreme Court in Varner v. Varner, 588 So.2d 428 (Miss.1991). There the court held that “claims for back child support may be brought at any time within seven years of the child’s emancipation.” Id. at 432. Amanda was emancipated in January 1996. However, BJ was not emancipated until July 8, 2000. The petition for contempt was filed in April 2000. Thus, it was filed well within the time frame enunciated by the Varner court.

¶ 18. Finding no reversible error committed by the chancellor on any issue, we affirm.

¶ 19. THE JUDGMENT OF THE ITAWAMBA COUNTY CHANCERY COURT IS AFFIRMED. STATUTORY PENALTIES AND INTEREST ARE ASSESSED AGAINST THE APPELLANT. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

GRIFFIS, J., NOT PARTICIPATING.