text:
    Rufus WATSON a/k/a Rufus Watson, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00728-COA.
    Court of Appeals of Mississippi.
    Jan. 21, 2003.

      Kevin Dale Camp, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   KING, P.J.,

for the Court.

¶ 1. Rufus Watson appeals a felony driving under the influence as an habitual offender conviction from the Circuit Court of Rankin County. Watson was sentenced to serve a term of five years in the custody of the Mississippi Department of Corrections without the possibility of parole, probation or other reduction. This appeal was perfected following the denial of his post trial motions. Watson makes the following claims of error on the part of the trial court:

I. The trial court erred in not granting a mistrial for the State’s failure to timely produce maintenance records for the calibration results of the In-toxilyzer 5000.
II. The trial court erred in allowing the whiskey bottle discovered in the vehicle to be admitted into evidence.
A. The trial court erred by not excluding the whiskey bottle since charge of possession of the whiskey bottle was dismissed.
B. The trial court erred pursuant to M.R.E. 403 by not excluding the whiskey bottle since it was more prejudicial than probative.
III. The court erred in allowing the State to reference the two prior DUIs in front of the Jury as consideration of the felony charge.

Finding no reversible error, this Court affirms his conviction and sentence.

FACTS'

¶ 2. A Rankin County law enforcement officer observed Watson drive the wrong way onto a highway exit ramp and pulled him over. At trial, the officer testified that as Watson exited his vehicle he fell to the ground. The officer testified to other behavior by Watson that included staggering, impaired coordination, slurred speech, and confusion. Other testimony by the officer indicated that Watson had bloodshot eyes and the odor of alcohol on his breath. After Watson failed a field sobriety test, the officer took Watson into custody and transported him to the local sheriffs office where an attempt was made to administer an intoxilyzer test; however, no results were obtained from the test. Watson was then formally charged. The officer testified, over objection from Watson, that during the booking process Watson made the following unsolicited statement, “I blew on the machine for my three other DUIs, but you’re going to have to work to prove this one.”

¶ 3. Watson took the stand in his own defense and testified that he did not drive the wrong way onto the exit ramp, did not fall down, did not stagger or slur his speech, was not confused, was not intoxicated, and did not make the statement attributed to him.

DISCUSSION

I. Did the trial court err in not granting a mistrial for the State’s failure to timely produce maintenance records for the calibration results of the Intoxilyzer 5000?

¶ 4. Watson contends that the State committed a discovery violation in failing to provide him with the maintenance records and calibration certificates of the in-toxilyzer prior to trial. Watson’s discovery request did not specifically seek the production of these documents but rather sought “everything concerning the test.” On cross-examination Watson had questioned the arresting officer about whether the intoxilyzer machine had been examined and certified to be in proper working order. On re-direct the officer produced the maintenance records and calibration certificates and was allowed to give testimony that the machine had been certified to be in proper working order at the time Watson was administered the test.

¶ 5. Watson claims that he was ambushed by the State’s decision to withhold the calibration results until after he had exposed his defense theory that the machines had not been certified. He claims that he had relied on that theory because the State had not provided any proof of the existence of any such documents in response to his discovery request. Consequently, Watson contends that the trial court erred in refusing to grant his motion for a mistrial due to the State’s discovery violation. In response to Watson’s motion for a mistrial, the trial court ruled as follows:

I’m going to rule that it’s not a discovery violation. I’ve had a hearing, and I think [defense counsel] opened the door. No other documents have been produced, and it’s not a machine test, and we’re going to go on with this trial.

This Court reviews a trial court’s denial of a motion for a mistrial for abuse of discretion. Spann v. State, 771 So.2d 883, 889(¶ 9) (Miss.2000).

¶ 6. Even though Watson made a discovery request for the intoxilyzer machine’s records, the records themselves were public and were as readily accessible to Watson as they were to the State. This Court held in McNair v. State, 814 So.2d 153 (Miss.Ct.App.2001), that in order for a discovery violation to constitute grounds for reversal, it must be shown (a) that the State possessed evidence favorable to the defendant which the defendant did not have and could not obtain himself with any reasonable diligence, (b) that the State somehow suppressed the information, and (c) that, had the evidence been disclosed, a different outcome to the case was at least a reasonable possibility. Id. at (¶ 13) (citing King v. State, 656 So.2d 1168, 1174 (Miss.1995)).

¶ 7. In applying the McNair test to the facts and circumstances of the case at bar, this Court finds that (l)Watson knew of the existence of the intoxilyzer machine’s records and could have obtained the records himself with reasonable diligence, (2) the State made no attempt to suppress the records, and (3) there is no reasonable possibility that the outcome of Watson’s trial would have been different had he had the records in advance of trial. Under these circumstances, it was not an abuse of discretion for the trial court to deny Watson’s motion for a mistrial.

II. Did the trial court err in allowing the whiskey bottle discovered in the vehicle to be admitted into evidence?

A. Was the issue of the whiskey bottle res judicata?

¶ 8. A whiskey bottle containing a liquid substance was discovered underneath the driver’s seat of Watson’s automobile during an inventory search following his arrest. The contents of the bottle were never tested or identified. The bottle and its contents were admitted into evidence over Watson’s objection. The basis of the objection raised by Watson was that since there had been a dismissal of the misdemeanor charge of illegal possession of alcohol in a dry county, the whole issue of the bottle was res judicata. The trial court ruled that the bottle was admissible as evidence of probable cause for arrest on the basis of Wilkerson v. State, 731 So.2d 1173 (Miss.1999), Longstreet v. State, 592 So.2d 16 (Miss.1991), Ashley v. State, 423 So.2d 1311 (Miss.1982) and a whole line of opinions which held that:

Information gathered by the officer at the scene ... provided the officer not only with probable cause to arrest ... but probable cause to believe that [the appellant] was intoxicated, indicating the need for a blood test.

Wilkerson, 731 So.2d at (¶ 14).

¶ 9. This Court reviews a trial court’s ruling on the admission of evidence for abuse of discretion and as long as that discretion is exercised within the scope of the Mississippi Rules of Evidence, reversal is appropriate only when prejudice to the accused occurs. Sturdivant v. State, 745 So.2d 240 (¶ 10) (Miss.1999). The arresting officer testified that numerous factors led him to conclude that Watson was intoxicated. The presence of the whiskey bottle was simply another link in the chain of evidence constituting probable cause for the officer to believe that Watson was intoxicated. Under the circumstances, this Court finds that no prejudice inured to the detriment of Watson by the introduction of the bottle into evidence.

B. Was the admission of the whiskey bottle more prejudicial than probative?

¶ 10. Watson argues in his appellate brief that the trial court abused its discretion in admitting the whiskey bottle and its contents even if solely for the purpose of demonstrating that a whiskey bottle was found in Watson’s automobile. He claims that the probative value of the bottle was substantially outweighed by the danger of unfair prejudice because it allowed the jury to speculate about the untested contents of the bottle. This argument was never made to the lower court. It is well settled in Mississippi jurisprudence that a trial court will not be put in error on a matter not presented to it for resolution and issues not presented in the trial court cannot be first argued on appeal. Chassaniol v. Bank of Kilmichael, 626 So.2d 127, 133-34 (Miss.1993). See also Seaney v. Seaney, 218 So.2d 5 (Miss.1969); A.H. George And Co. v. Louisville & N.R. Co., 88 Miss. 306, 40 So. 486 (1906). Nevertheless, this Court will address the merits of this assignment of error.

¶ 11. This Court’s review of the record indicates that the trial judge was concerned about the need to balance the probative value of this evidence against any prejudicial effect when it stated the following:

I’m going to have to give some kind of limiting] instruction to tell them that the bottle is being introduced as an exhibit in this trial, not for the purpose that it contains whiskey, [because] it hasn’t been tested but it was under Mr. Watson’s seat. I think I’m going to have to do that.

The limiting instruction that the trial court eventually gave read as follows:

The court instructs the jury that no evidence was introduced that would identify the contents of the bottle that is marked State’s Exhibit Number 1.

¶ 12. This Court finds that the trial court properly balanced the probative value of the whiskey bottle and its contents against the prejudicial effect and found that the probative value outweighed any prejudicial effect. This Court finds no abuse of discretion in that ruling. Furthermore, while Watson alleges prejudice, he fails to set forth with any particularity how the ruling prejudiced his defense. This assignment of error has no merit.

III. Did the court err in allowing the State to reference the two prior DUIs in the presence of the jury as consideration of the felony charge?

¶ 13. Watson contends that on the basis of Strickland v. State, 784 So.2d 957, 961 (Miss.2001), the statute under which he was indicted, Miss.Code Ann. § 63-11-30(8), is in direct conflict with Mississippi Rules of Evidence 404(b) and 403, which prohibit the introduction of prior bad acts, which are only relevant to sentencing, and are only admissible during a separate sentencing phase, not during trial. Section 63-11-30(8) provides as follows:

(8)For the purposes of determining how to impose the sentence for a second, third or subsequent conviction under this section, the indictment shall not be required to enumerate previous convictions. It shall only be necessary that the indictment state the number of times that the defendant has been convicted and sentenced within the past five (5) years under this section to determine if an enhanced penalty shall be imposed. The amount of fine and imprisonment imposed in previous convictions shall not be considered in calculating offenses to determine a second, third or subsequent offense of this section.

Miss.Code Ann. § 63-11-30(8) (Supp.2002).

¶ 14. Watson is correct in his argument regarding the holding in Strickland. This Court, however, has held that, “[b]ecause the Strickland decision is a plurality decision on the point of whether a bifurcated trial is required, it has no precedential value.” Moore v. State, 806 So.2d 308(¶ 5) (Miss.Ct.App.2001). See Rigby v. State, 826 So.2d 694 (Miss.2002). This Court also takes note of the fact that Watson made no objection to the introduction of the prior DUI convictions at trial and therefore waived his right to object on appeal. Consequently, in addition to lacking merit, this issue is also procedurally barred from review by this Court. Harris v. Lewis, 755 So.2d 1199, 1204 (¶ 15) (Miss.Ct.App.1999).

IV. Did the trial court commit reversible error in the admission of statements made by Watson during the booking process?

¶ 15. The arresting officer testified that during the booking process Watson made the following unsolicited statement, “I blew on the machine for my three other DUIs, but you’re going to have to work to prove this one.” It was the officer’s testimony that the statement was unsolicited and not in response to any questioning or interrogation of any kind by anyone. Watson contends that he was under arrest at the time the statement was made, therefore, he should have been advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that since he had not been so advised, it was reversible error for the court to admit the statement.

¶ 16. The trial court ruled that the statement was admissible as a spontaneous statement and not in response to police interrogation. The standard of review for determining the admissibility of the statement was reiterated by the Mississippi Supreme Court in Balfour v. State, 598 So.2d 731, 742 (Miss.1992): “Determining whether a [statement] is admissible is a finding of fact which is not disturbed unless the trial judge applied an incorrect legal standard, committed manifest error, or the decision was contrary to the overwhelming weight of the evidence.” With regard to spontaneous statements, this Court has held that:

Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege [against self-incrimination] while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated.... Volunteered statements of any kind are not barred by the Fifth Amendment....

Alexander v. State, 736 So.2d 1058 (¶ 11) (Miss.Ct.App.1999).

¶ 17. This Court finds that, with regards to the admissibility of Watson’s statement, the trial court did not apply an incorrect legal standard, or commit manifest error, nor was its decision contrary to the overwhelming weight of the evidence, therefore, its decision will not be disturbed.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY OF CONVICTION OF FELONY DUI AS AN HABITUAL OFFENDER AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, MYERS, AND CHANDLER, JJ„ CONCUR. IRVING, J., CONCURS IN RESULT ONLY. GRIFFIS, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    Lois EVERETT, Jr. a/k/a Loyce Everett, Jr. a/k/a Loyce Everett, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01356-COA.
    Court of Appeals of Mississippi.
    Jan. 21, 2003.

      Leslie D. Roussell, Laurel, attorney for appellant.
    Office of the Attorney General, by Deirdre McCrory, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J.,

for the court.

¶ 1. Lois Everett was convicted of aggravated assault and possession of a firearm by a felon in the Wayne County Circuit Court. Everett has appealed his conviction raising the following issues:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO ALLOW THE DEFENDANT TO INTRODUCE EXTRINSIC EVIDENCE OF A PRIOR INCONSISTENT STATEMENT BY THE STATE’S WITNESS MATTHEW CARL “NIKKI” HAYES.

II. THE TRIAL COURT VIOLATED THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY NOT USING THE PROPORTIONALITY ANALYSIS BEFORE SENTENCING THE DE-. FENDANT TO TWENTY-THREE' YEARS IN PRISON.

Finding no error, we affirm.

FACTS

¶ 2. Lois “Bobo” Everett was indicted by a grand jury convened in Wayne County Circuit Court for the crime of aggravated assault and possession of a firearm by a felon. On March 10, 2001, a jury found Everett guilty and he was sentenced to twenty-three years’ imprisonment.

¶ 3. On Saturday May 6, 2000, Everett, Bobby Shon Smith, and their two girlfriends went to the Cornfield Club, a local nightclub, located in Wayne County, Mississippi. Everett claims they were seated at a table when Anthony Sumlin walked by and spilled his drink on their table and on Everett’s girlfriend. Choice words were exchanged between the two. Later in the night, around 11:30 p.m. a fist fight ensued, each claiming the first punch was thrown by the other party. Both testified that other patrons joined in the brawl. “Nikki” Hayes, the club’s bouncer, broke up the fight.

¶ 4. Shortly thereafter, around 12:00 a.m., Sumlin said he was leaving the building when he heard someone yell, “he’s got a gun!” Looking up, Sumlin said he saw Everett pointing a gun at him. He testified Everett fired a shot hitting him in his shoulder. The State’s witness, “Nikki” Hayes, testified that he also saw Everett shoot Sumlin. Everett testified that he was driving out of the parking lot when he heard the gunshot. Defense witness, Bobby Shon Smith, testified that he saw Everett getting into his car when the shot was fired.

LAW AND ANALYSIS

I. WHETHER THE TRIAL JUDGE ERRED IN DENYING HAYES’S AFFIDAVIT INTO EVIDENCE.

¶ 5. Everett complains that the circuit judge committed reversible error in refusing to allow Hayes’s unsworn affidavit into evidence. Everett contends that there were two inconsistencies between Hayes’s testimony and his affidavit, and that he was entitled to show the jury the affidavit. Everett argues that the two inconsistencies of Hayes’s testimony concern escorting the victim and the defendant outside the club and Hayes’s location when the gun was fired.

¶ 6. “The trial court is granted substantial leeway in controlling the admission of evidence.” Moran v. State, 822 So.2d 1074, 1077(¶ 8) (Miss.Ct.App.2002). “The discretion of the trial judge must be exercised within the boundaries of the Mississippi Rules of Evidence.” Ivy v. State, 641 So.2d 15, 18 (Miss.1994). According to Rule 103, “error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.” M.R.E. 103. Unless the trial judge’s “discretion is so abused as to be prejudicial to the accused, this Court will not disturb the trial court’s ruling on appeal.” Hansen v. State, 592 So.2d 114, 132 (Miss.1991).

¶ 7. Mississippi Rules of Evidence 613 allows the impeachment of witnesses with their prior inconsistent statements in two ways. The first is by reading the statement to the witness and asking whether that statement accurately reflects the testimony given on the occasion when the statement was recorded. M.R.E. 613(a). On the other hand, a party may use extrinsic evidence. M.R.E. 613(b). This can be done by putting on other witnesses who will introduce facts discrediting the previous witness’s testimony. Rule 613(b) states:

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).

¶ 8. Everett argues that Hayes made a prior inconsistent statement concerning the removal of the victim and defendant from the club. He points out that in Hayes’s sworn testimony Hayes stated he removed Everett from the bar first and left Sumlin inside by the door for a while before removing him. Everett contends this is inconsistent with the affidavit Hayes gave Officer Robert Owen which stated Hayes grabbed both and took them outside the club.

¶ 9. On direct examination Hayes testified as follows:

Q. Okay. And what about “Bobo” [Everett]? What did you do with “Bobo”?
A. I got him outside the club
Q. Okay. What about Mr. Sumlin?
A. All right. I told — well, he was to the door. He got right to the front door.
Q. He was right there at the front door.
A. Yes, ma’am
Q. Okay. The person that you’ve identified as “BoBo,” when you told him to leave the club, did he — what did he do then?
A. They went outside. We got him outside, and I told him he couldn’t come back in the club because we was closing up, and the other guy was still — you know, Mr. Sumrall [Sumlin] still up in the club.
Q. Okay. And after that, what was the next thing that happened?
A. All right. I got them outside and really the fight was over with, you know.

¶ 10. On cross-examination Hayes testified as follows:

Q. In a statement that you gave to Robert Owen, you said that after the fight was broke up, you got Sumlin and Everett and took them both outside and then you didn’t let nobody else into the club because the club was closing.
A. It was closing down.
Q. So is that right? Do you remember saying that to Mr. Owen?
A. Whatever I stated to him, that’s what I told him.
Q. Well, I don’t want nobody to think I’m trying to make you say something you’re not, so I’m going to let you read it as soon as I find it.
[Pause in proceedings]
Q. It pretty much starts right there where the pen is (indicating). You can hold onto it. In that statement, that’s the statement that you gave to Robert Owen when he interviewed you about what had happened?
A. Yes, sir.
Q. And in it, you said that you took Mr. Everett and Mr. Sumlin outside the club?
A. That’s right.
Q. Okay. And you agree that you said that to him, that you took them out the club that night?
A. I took them outside.
Q. That’s all I wanted to talk about on that. A while ago, you said you never took Mr. Sumlin outside. I don’t know if it’s a big deal or not. It’s just inconsistencies.
A. You can’t take them out but one at a time. You know what I’m talking about? They was tied up fighting and I got them outside.

¶ 11. Before a party may impeach a witness under Rule 613(b) there must be an actual contradiction in fact between the testimony and the prior statement. Ratcliff v. State, 752 So.2d 435, 439 (¶ 17) (Miss.Ct.App.1999). It is generally held that a prior statement is inconsistent if under any rational theory its introduction might lead to a conclusion different from the witness’s testimony. Id. at (¶ 18). The Court has also stated that if the prior statement has a reasonable tendency to discredit the witness’s testimony then the statement is considered inconsistent. Id.

¶ 12. In the instant case, Everett fails to show Hayes’s prior statement is inconsistent with his trial testimony. In his testimony on cross-examination, Hayes clarifies what was meant by taking them “both outside.” We do not find that Hayes’s prior statement concerning the escorting of the victim and defendant outside has any reasonable tendency to discredit his testimony. Therefore, Hayes was never impeached concerning his testimony about the escorting of the men outside the club.

¶ 13. Everett also contends that Hayes was impeached due to his testimony concerning where he was standing when the shot was fired. He points out that in Hayes’s sworn testimony he stated he was standing by his car which was five or six feet from the door where Sumlin was shot. However, in his affidavit, when asked where he was in relation to the shooting, he said he was standing by the white house next to the club which was 25 to 30 feet away from the shooting.

¶ 14. After Hayes was excused, the State called Officer Owen to the stand. On cross-examination, defense counsel asked Owen to read the three paragraphs he wrote after questioning Hayes about the night of the shooting. The State’s attorney objected claiming it was hearsay. Everett’s attorney said the purpose of reading the affidavit was to show by extrinsic evidence that Hayes had made pri- or inconsistent statements. He then claimed he did not have the statements read by Hayes because when Hayes was asked to read the portion of the affidavit concerning his escorting of the two men from the club he was reluctant. Everett’s attorney explained that he attributed this reluctance to the fact that the witness probably could not read.

¶ 15. The court overruled the State’s objection and allowed the officer to read the statements from the affidavit the defense counsel believed were inconsistent with Hayes’s sworn testimony. The defense counsel asked the officer to read the last paragraph of the affidavit:

On Monday, July 24, 2000, Owen again talked to Hayes. This time Owen asked a few questions that Owen had since Owen first interviewed Hayes. Owen asked Hayes where was Hayes when the shooting took place and where was the subjects at. Hayes told Owen that Hayes was standing over by the white house that is next to the club. Owen asked Hayes how long had Hayes known Everett and Hayes stated about ten years. Owen asked if Hayes could see Everett good that night and Hayes said that Hayes could see Everett good. Owen asked how far away was Hayes from Everett when Everett shot Sumlin. Hayes stated that Hayes was about 25 to 30 feet.

¶ 16. The defense attorney then asked for the affidavit to be submitted into evidence considering it directly contradicted Hayes’s statement that he was six feet away standing by his car when the gun was fired. The trial judge denied his request claiming that it was “rank hearsay.”

¶ 17. Rule 613(b) will not allow extrinsic evidence to be used to prove a prior inconsistent statement unless the witness is afforded an opportunity to explain or deny it. M.R.E. 613(b). The rule does not establish a particular time for denial or explanation. However, Mississippi case law indicates that some foundation must be laid before impeachment testimony will be permitted. Whigham v. State, 611 So.2d 988, 994 (Miss.1992). If counsel for a party desires to impeach the testimony of a witness with a pretrial, out-of-court statement that is inconsistent with his trial testimony, “it is only fair that the witness, while he is on the stand, be asked about it, and be given an opportunity to explain or deny it.” Id. In the instant case, defense counsel failed to lay such a predicate when Hayes was on the stand.

¶ 18. On direct examination Hayes testified as follows:

Q. Okay. And when you saw “BoBo” with a gun, what did you do at that point?
A. Well, when I seen him with the gun and then — when I seen him with the gun, I was standing by my car and people was running, so what it — it happened so quick, you know, and — you know, wasn’t nothing I could do.
Q. Okay. Where was Mr. Sumlin when he was hit?
A. He was standing side the club on the outside of the door.

¶ 19. On cross examination Hayes testified as follows:

Q. When you heard the gunshot go off, exactly where were you standing?
A. Right there by my car, maybe— maybe five or six feet from the door.
Q. Your car was five or six feet from the door, so about where I am to the door?
A. That’s about right.

¶ 20. Hayes was never questioned about his statements made to Officer Owen concerning Hayes’s location at the time of the shooting. Because no foundation was laid, the statement was improperly read into evidence. Whether the document itself should have been entered into evidence was properly decided by the trial court.

II. WHETHER THE TRIAL JUDGE VIOLATED THE EIGHTH AMENDMENT BY SENTENCING THE DEFENDANT TO TWENTY-THREE YEARS.

¶ 21. Everett argues that the trial court should have applied the proportionality analysis established by the United States Supreme Court in Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), before sentencing the defendant to twenty-three years’ imprisonment. By not following the analysis, Everett contends that the sentence was excessive and violative of his constitutional rights. He cites the Eighth Amendment of the United States Constitution which restricts cruel, unusual and excessive punishment. U.S. Const, amend. VIII. In reviewing sentences, this Court will not engage in analyzing a sentencing order unless it is considered constitutionally disproportionate or not within the statutory limits. Davis v. State, 724 So.2d 342, 345 (¶¶ 10, 14) (Miss.1998).

¶ 22. In Solem, 463 U.S. at 290, 103 S.Ct. 3001, the court held that a criminal sentence must not be disproportionate to the crime for which the defendant is being sentenced. The defendant in that case had been convicted of six non-violent felonies prior to writing a bad check. Id. at 282, 103 S.Ct. 3001. The South Dakota trial court sentenced the defendant to life without parole pursuant to that state’s habitual offender statute. Id. The United States Supreme Court held the sentence to be excessive and violative of the defendant’s constitutional rights. Id. at 303, 103 S.Ct. 3001.

¶ 23. The court outlined a three prong analysis to assist lower courts in determining whether an imposed sentence violates the Eighth Amendment by being excessive. The three prong analysis is as follows: “(1) look at the gravity of the offense and the harshness of the penalty, (2) compare the sentences imposed on other criminals in the same jurisdiction, and (3) weigh the sentences imposed for the commission of analogous crimes in other jurisdictions.” Id. at 290, 103 S.Ct. 3001.

¶ 24. Mississippi like South Dakota has an habitual offender statute. Mississippi’s statute reads:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution whether in this state or elsewhere shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Miss.Code Ann. § 99-19-81 (Rev.2000).

¶ 25. In Clowers v. State, 522 So.2d 762, 765 (Miss.1988), the Mississippi Supreme Court recognized the proportionality analysis. Despite the habitual offender statute the court stated that under the Supremacy Clause the court has the authority to review sentencing guidelines as expressed in Solem. Id. The defendant in Clowers was an habitual offender who was convicted of forging a $250 check. Id. at 763. As an habitual offender, the defendant was subject to the mandatory maximum forgery sentence of fifteen years without parole. Id. The trial court imposed a sentence of less than fifteen years on the grounds that the mandatory maximum sentence would be disproportionate to the crime. Id.

¶ 26. After affirming the trial court sentencing order, the Mississippi Supreme Court warned that this decision should not be construed too broadly. Id. at 765. The court stated that this “does not represent a de facto grant of sentencing discretion, but, rather, ties proportionality to the three-step analysis outlined therein.” Id. Mississippi case law following Clowers has limited its scope. Barnwell v. State, 567 So.2d 215, 221 (Miss.1990); Bell v. State, 769 So.2d 247, 252(¶ 13) (Miss.Ct.App.2000). In Barnwell, 567 So.2d at 221, the Mississippi Supreme Court stated that the ruling in Clowers is limited to its “own distinctive facts and procedural posture.” In Bell, 769 So.2d at 252(¶ 12), this Court held that the holding in Clowers is nqt the “rule but the exception.” It also stated that Clowers did not establish a “litmus test of proportionality.” Id.

¶ 27. Clowers is distinguishable from the case at bar. In Clowers the defendant forged a check, in this case the defendant shot a man. As the trial judge stated, “Had that bullet struck three or four inches lower down on the body of Mr. Sumlin he would not be here with us. He would be dead.”

¶28. We find the trial judge’s sentencing order constitutional and within the statutory limits. Therefore, we affirm.

¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF WAYNE COUNTY OF CONVICTION OF COUNT I AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS AND COUNT II POSSESSION OF A FIREARM BY A FELON AND SENTENCE OF THREE YEARS ALL AS AN HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $730 IS AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONSECUTIVELY TO COUNT I AND ANY OTHER SENTENCE PREVIOUSLY IMPOSED. COSTS OF THIS APPEAL ARE ASSESSED TO WAYNE COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ, BRIDGES, THOMAS, LEE, IRVING, AND MYERS, JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING.


author: MYERS, J.,

text:
    Kenaith Demario AVERY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00516-COA.
    Court of Appeals of Mississippi.
    Jan. 21, 2003.

      Kenaith Demario Avery, Pro se, Attorney for Appellant.
    Office of the Attorney General by Billy L. Gore, Attorney for Appellee.
    Before SOUTHWICK, P.J., BRIDGES and MYERS, JJ.
   MYERS, J.,

for the Court.

¶ 1. Kenaith Demario Avery, pro se, filed a post-conviction relief motion which was denied by the trial court. On appeal, Avery asserts the following issues:

1. WHETHER THE GUILTY PLEA ENTERED BY AVERY WAS NOT VOLUNTARILY NOR INTELLIGENTLY MADE;

2. WHETHER THE INDICTMENTS WERE DEFECTIVE; AND

3. WHETHER THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

STATEMENT OF THE FACTS

¶ 2. On January 12, 2000, Avery pled guilty to three indictments charging him with sale of cocaine. The sales had occurred on or about November 4 and December 17, 1998, and on or about January 28, 1999. Avery had prior convictions of aggravated assault and escape, thus resulting in the indictment’s inclusion of habitual offender status. As part of the plea agreement, the State moved to have the habitual status portion of the three indictments remanded. Avery was sentenced to twenty-eight years with five years of post-release supervision following twenty-three years of incarceration for one of the offenses. For the other two offenses the trial judge sentenced Avery to two ten-year terms to be served concurrently. The trial judge also added other minor fines and penalties to Avery’s sentence.

¶ 3. After about nineteen months of incarceration, Avery filed his motion for post-conviction relief. The motion was essentially a request to set aside his guilty plea. The motion contained a myriad of claims and requests. The trial court denied Avery’s motion. Upon denial, Avery perfected his appeal.

LEGAL ANALYSIS

1.WHETHER THE GUILTY PLEA ENTERED BY AVERY WAS NOT VOLUNTARILY NOR INTELLIGENTLY MADE

¶ 4. In determining whether the guilty plea was made knowingly and voluntarily, an examination of the entire record must be conducted. Weatherspoon v. State, 736 So.2d 419, 421(¶ 5) (Miss.Ct.App.1999). This Court is not persuaded that the plea of guilty entered by Avery was involuntary or not made intelligently. In order for a plea to be voluntary, the plea must be “one in which the defendant was advised about the nature of the crime charged against him and the consequences of the guilty plea.” Stovall v. State, 770 So.2d 1019, 1020-21(¶ 7) (Miss.Ct.App.2000). “A plea is deemed ‘voluntary and intelligent’ only where the defendant is advised concerning the nature of the charge against him and the consequences of the plea.” Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). “Trial judges are entitled to place great weight upon a defendant’s initial plea under oath.” Templeton v. State, 725 So.2d 764, 767(¶ 10) (Miss.1998). This Court will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous. Stevenson v. State, 798 So.2d 599, 602(¶ 7) (Miss.Ct.App.2001).

¶ 5. Avery argues that his guilty plea was not made voluntarily nor intelligently. We reviewed the record and list the actions taken at the trial level before Avery’s plea:

1. Avery originally pled not guilty to all the charges.
2. Avery petitioned the trial court to change the not guilty plea to guilty.
3. The trial judge questioned the defense attorney whether the attorney had prepared the petition, reviewed it with Avery, and was satisfied that Avery understood the nature and consequences of such petition. The attorney responded in the affirmative.
4. Avery’s testimony was sworn under oath. The trial judge informed Avery that at any túne Avery did not understand something, that Avery should stop the proceedings and request clarification. Avery acknowledged that he understood.
5. Upon questioning from the trial judge, Avery acknowledged that he was twenty-two years old, that he had a ninth grade education, that he was able to read and write, that he had read, understood the petition, and discussed it with his counsel, that he was not under the influence of drugs, alcohol, or anything else that affected his ability to reason, and that he did not suffer from any medical or mental condition that affected his ability to reason.
6. Avery was told that a guilty plea meant the loss of certain federal and state constitutional rights. The judge informed Avery of the right to a speedy public trial, the right to a jury trial, the right to be present at the trial, the right to testify or choose not to testify without consequence, the right to cross-examine witnesses, the right to compel witnesses, the presumption of innocence, and the right to an appeal with an attorney. Avery responded that he understood the loss of these rights.
7. Avery was asked if any reward had been proposed to induce his plea. Avery responded that none had been offered.
8. Avery was asked if any threats had been made to induce his plea. Avery responded that none had been made.
9. The trial judge went over the charges and habitual offender status with Avery, explained to Avery the penalties he was facing if convicted of the charges, and that the trial judge did not have to accept a sentence recommendation. Avery responded that he understood.
10. The trial judge asked Avery if his counsel had. explained the elements of the charges and discussed any defenses Avery may have. Avery acknowledged in the affirmative.
11. The trial judge asked if Avery had been totally satisfied with his counsel’s handling of the case. Avery acknowledged that he had been.
12. The trial judge had the prosecutor read the charges and facts that were going to be presented by the prosecution. The trial judge asked Avery if he understood and agreed with the facts and that he was pleading guilty because he was guilty. Avery acknowledge that the facts were correct and the guilty plea was being entered because he was guilty. The trial judge found that Avery was making such plea voluntarily, intelligently, and knowingly.

¶ 6. Avery pled guilty to all three of the indictments. As his basis for the argument, Avery refers to the “threat” of a ninety-year prison sentence if convicted and potentially life imprisonment based upon the habitual offender status and the need for the trial judge to further investigate Avery’s satisfaction with his counsel.

¶ 7. The “threat” is easily dealt with. There were three indictments against Avery and a conviction of any of the three could have resulted in the imposition of a ninety-year sentence or even life imprisonment under the habitual offender law. Mississippi law allows an indictment to include the habitual offender status language if applicable. This cannot be called a threat. It does not seem that Avery has taken into consideration the fact that if this Court grants his request to withdraw his plea, he could face a conviction on any of the three indictments which could result in a sentence of life imprisonment under the habitual offender status rule. As it stands, Avery has the chance to walk out of prison after the twenty-three years a free man rather than being carried out as a corpse.

¶ 8. As to the need for the trial judge to further investigate Avery’s satisfaction with his counsel, Avery was specifically asked about his satisfaction of counsel. Avery made no mention of any discord between himself and his defense attorney until his petition for post-conviction relief.

¶ 9. Avery’s testimony was sworn under oath. The trial judge methodically and carefully explained to Avery the situation. Avery had the ability to understand the nature and consequences of the entry of a guilty plea. This Court can not ask a trial judge to do more than the trial judge did to make absolutely sure a plea is entered voluntarily and intelligently.

2. WHETHER THE INDICTMENTS WERE DEFECTIVE

¶ 10. Avery’s argument that the indictments were defective is curious at best. His argument is based on a failure to follow Section 169 of the Mississippi Constitution. Section 169 reads:

The style of all process shall be “The State of Mississippi” and all prosecution shall be carried on in the name and by authority of “The State of Mississippi”, and all indictments shall conclude “against the peace and dignity of the State.”

¶ 11. Avery relies solely on McNeal v. State, 658 So.2d 1345 (Miss.1995). In McNeal, the Supreme Court decided that the requirement of Section 169 must be literally followed. “[T]he provision appears to us to be idle and meaningless, but we find it in the fundamental law, and we cannot disregard it.” McNeal, 658 So.2d at 1350 (quoting Love v. State, 8 So. 465 (Miss.1891)). In McNeal, the Supreme Court ruled that because the habitual offender status language came after the Section 169 required language, the indictment was defective as to the habitual offender status language.

¶ 12. In the case sub judice, there were three indictments. Each indictment listed the drug related charge followed by the Section 169 required language. The indictments continued with the habitual offender status followed by the Section 169 required language. Avery’s argument, although not clear, seems to suggest that as in McNeal, the indictment concluded with the first use of the Section 169 language. Avery’s argument is odd because he was not sentenced under the habitual offender status.

¶ 13. Research suggests that after McNeal was decided, a floodgate of post-conviction relief requests were filed arguing the same point. A couple of months after McNeal, the Mississippi Supreme Court upheld the ruling that Section 169 was a necessary requirement of an indictment but stated that the issue needed to be raised earlier. Brandau v. State, 662 So.2d 1051, 1053-55 (Miss.1995). The opinion in Brandau came as a result of a motion for rehearing. The court held that the issue needed to be raised at the trial level. Voyles v. State, 822 So.2d 353, 358 (¶¶ 20-22) (Miss.Ct.App.2002). Additionally, this Court determined that when the language “against the peace and dignity of the State” is used at the end of each count in an indictment, there is no constitutional violation. Evans v. State, 742 So.2d 1205, 1209 (¶¶ 12-13) (Miss.Ct.App.1999) (required words used after each count in an indictment and the habitual offender status).

¶ 14. In any event, Avery pled guilty to the charges. The Section 169 required language appears after the charge. There was no objection made at the trial level as to the indictment. We hold that the indictment was not defective.

3. WHETHER THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

¶ 15. The standard to be applied to an ineffective assistance of counsel claim was set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove ineffective assistance of counsel, it must be shown (1) that the counsel’s performance was deficient, and (2) the deficient performance caused prejudice to the defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Walker v. State, 703 So.2d 266, 268(¶ 8) (Miss.1997); McQuarter v. State, 574 So.2d 685, 687 (Miss.1990); Stringer v. State, 454 So.2d 468, 476-77 (Miss.1984). The court elaborated on these requirements in this way:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance: that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”

Strickland, 466 U.S. at 689, 104 S.Ct. 2052, quoted in Stringer, 454 So.2d at 477.

¶ 16. The deficiency and the prejudicial effect are judged by looking at the totality of the circumstances, and there is a strong presumption counsel’s performance fell within the wide range of reasonable professional assistance. Hiter v. State, 660 So.2d 961, 965 (Miss.1995); McQuarter, 574 So.2d at 687. The burden is on the defendant to demonstrate the Strickland factors to support an ineffective assistance of counsel claim. McQuarter, 574 So.2d at 687. Matters of trial strategy are left to the attorney, and they must also fit within the Strickland guidelines. Chase v. State, 699 So.2d 521, 541(¶ 58) (Miss.1997). Avery argues that he was denied effective assistance of counsel. He presents his argument upon the proposition that his counsel provided erroneous advice and failed to conduct a proper investigation.

¶ 17. Avery presents no evidence of his attorney providing erroneous advice other than that his counsel suggested that Avery should plead guilty. The choice to plead belonged to Avery. His counsel reviewed the charges, the evidence, and potential sentence Avery was facing. This Court agrees that pleading guilty, as to avoid the potential life sentence under the habitual offender status, was a wise choice in the light of the evidence against Avery.

¶ 18. Avery’s other basis is that his counsel failed to conduct a proper investigation. Avery alleges that there was a conspiracy between the police, prosecutor, and eventually his defense counsel. He claims that his counsel only received the discovery package a few days before the entering of the guilty plea, thus a lack of opportunity to properly investigate. It is true that appointed counsel must show the same diligence to their client as a privately retained attorney would to her client, but it is important to remember that many court-appointed attorneys handle similar cases on a daily basis. This Court has reviewed the record and determined that the evidence against Avery was overwhelming and did not require any complex or novel legal issues. While Avery suggests there should have been more done as far as investigating the facts, an attorney cannot twist and mutilate facts and law to garner an acquittal in every case. An attorney takes his clients as he finds them and many times there is little in favor of the client for the attorney to work with. Avery was provided effective assistance of counsel.

CONCLUSION

¶ 19. This Court holds that the decision of the trial judge to deny Avery’s post-conviction relief motion was correct. This Court affirms the decision.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF GRENADA COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THE APPEAL ARE ASSESSED TO GRENADA COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING AND CHANDLER, JJ„ CONCUR. GRIFFIS, J., NOT PARTICIPATING.


author: WOODALL, Justice. MOORE, Chief Justice

text:
    Cheryl BURGOON, individually and as administratrix of the estate of J.B. Beasley, deceased v. ALABAMA STATE DEPARTMENT OF HUMAN RESOURCES et al.
    1010345.
    Supreme Court of Alabama.
    May 17, 2002.

      Michael Guy Holton, Pike Road, for appellant.
    J. Coleman Campbell and Sharon E. Ficquette, asst, attys. gen., Department of Human Resources; Stephen T. Etheredge, Dothan; and Jere C. Segrest and Kevin Walding of Hardwick, Hause & Segrest, Dothan, for appellees.
   WOODALL, Justice.

Cheryl Burgoon, individually and as ad-ministratrix of the estate of her daughter, J.B. Beasley, deceased, appeals from a judgment dismissing her complaint against, among others, the Alabama State Department of Human Resources and the Houston County Department of Human Resources (hereinafter referred to collectively as “DHR”). We affirm in part, reverse in part, and remand.

According to the undisputed facts, 17-year-old J.B. Beasley was murdered. Her body was discovered locked in the trunk of her automobile; she had suffered a gunshot wound to the head. At the time of the murder, Beasley was in the legal custody of the Houston County Department of Human Resources.

On July 31, 2001, Burgoon commenced a wrongful-death action in the Houston Circuit Court against DHR and certain individuals, among whom were employees of DHR. The complaint alleged, among other things, that certain individuals had failed to supervise Beasley. It averred that “none of the Defendants can account for J.B. Beasley’s whereabouts on the night of her death,” and that the homicide occurred “[a]s a direct and proximate result of [the] failure to ... supervise.” The complaint included claims for damages against DHR and against its employees in their individual and official capacities.

On August 8, 2001, one of the individual defendants moved to disqualify Burgoon’s attorney, on the ground that the attorney would become a material witness in the case. On August 27, 2001, the trial court entered on the case-action-summary sheet an order scheduling a hearing on October 2, 2001, for “[a]ll pending motions.” Subsequently, the defendants filed motions for dismissal. In particular, the individual defendants filed motions to dismiss pursuant to Ala. R. Civ. P. 12(b)(6) on August 30, 2001, and August 31, 2001. On September 5, 2001, DHR and one of its employees filed a joint “Motion to Dismiss Pursuant to [Ala], R. Civ. P. 12, or in the Alternative, Motion for Summary Judgment Pursuant to [Ala], R. Civ. P. 56.” Accompanying the latter motion was the employee’s affidavit. On September 21, 2001, that is, 11 days before the scheduled hearing, the trial court entered the following order on the case-action-summary sheet: “Motions to dismiss as to all defendants are hereby granted.” From that judgment, Burgoon appealed.

Burgoon contends that the trial court erred in granting the defendants’ motions to dismiss without a hearing. She relies on Ala. R. Civ. P. 78, which states, in pertinent part:

“To expedite further its business, unless there is a request for oral hearing, the court may enter an order denying a motion to dismiss without oral hearing. Unless the court orders otherwise, an order granting a motion to dismiss shall be deemed to permit an automatic right of amendment of the pleading to which the motion is directed within ten (10) days from service of the order.”

(Emphasis added.) Particularly instructive are the “Committee Comments on 1973 Adoption” to Rule 78, which state, in part:

“It is to be noted that the last sentence of the rule 'prohibits the granting of a Motion Seeking Final Judgment such as a Motion for Summary Judgment without giving the parties an opportunity to be heard orally.
“... In the event the court has any inclination toward the granting of the motion to dismiss, a hearing will continue to be required.”

(Emphasis added.)

It is clear that the requirements of Rule 78 differ, depending on whether the trial court contemplates granting, as opposed to denying, a motion for a final judgment. Under the plain language of the rule and the comments to the rule, a trial court may not grant a motion to dismiss without a hearing, although, in some circumstances, it may deny such a motion. Cf. Van Knight v. Smoker, 778 So.2d 801, 805 (Ala.2000) (except in “certain limited circumstances,” Rule 56(c), Ala. R. Civ. P., entitles the parties to a hearing on a summary-judgment motion).

There is one notable exception to this rule. Under Alabama caselaw, a “circuit court is without jurisdiction to entertain a suit against the State because of [Ala. Const.1901, § 14].” Aland v. Graham, 287 Ala. 226, 229, 250 So.2d 677, 678 (1971). “Therefore, it appears that a trial court or an appellate court should, at any stage of the proceedings, dismiss a suit when it becomes convinced that it is a suit against the State and contrary to Sec. 14 of the Constitution.” 287 Ala. at 229, 250 So.2d at 678 (emphasis added).

A suit against a State agency, or against State agents in their official capacities, is a suit against the State. Ex parte Mobile County Dep’t of Human Res., 815 So.2d 527 (Ala.2001); Ex parte Alabama Dep’t of Forensic Sciences, 709 So.2d 455 (Ala.1997); Ex parte Franklin County Dep’t of Human Res., 674 So.2d 1277, 1279 (Ala.1996); Alabama State Docks v. Saxon, 631 So.2d 943, 946 (Ala.1994). State agents enjoy absolute immunity from suit in their official capacities. “[A] county department of human resources is considered to be a State agency for purposes of asserting the defense of sovereign immunity.” Ex parte Franklin County Dep’t of Human Res., 674 So.2d at 1279. A trial court must dismiss an action against a State agency or against a State agent acting in an official capacity at the earliest opportunity. The trial court did not err in dismissing the claims against DHR and against its employees in their official capacities, because facially these claims were claims against the State.

The DHR employees in their individual capacities, however, enjoy only qualified immunity from suit. Ex parte Tuscaloosa County, 796 So.2d 1100, 1106 (Ala.2000). The law of qualified immunity was succinctly restated in Ex parte Cranman, 792 So.2d 392, 405-06 (Ala.2000), adopted by a majority of this Court in Ex parte Butts, 775 So.2d 173 (Ala.2000). The claims against the individuals in their individual capacities are not subject to the “notable exception” to Rule 78, because such claims are not claims against the State.

The trial court erred, therefore, in granting the motions to dismiss the claims against all individual defendants in their individual capacities without conducting a hearing. To the extent the judgment dismissed the claims against the individuals in their individual capacities, that judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion. To the extent it dismissed the claims against DHR and against the individual defendants in their official capacities, the judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, and STUART, JJ., concur.

MOORE, C.J., concurs in part and dissents in part.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I concur in reversing the trial court’s order insofar as it dismissed the claims against the DHR employees in their individual capacities; however, I dissent from that part of the majority opinion affirming the trial court’s order dismissing the claims against DHR and its employees in their official capacities without a hearing.


author: HOUSTON, Justice. SEE, Justice

text:
    Robert E. QUIMBY v. MEMORIAL PARKS, INC.
    1010334.
    Supreme Court of Alabama.
    May 17, 2002.
    Bert W. Rice, Atmore; and Charles E. Johns, Jr., Brewton, for appellant.
    J. David Jordan of Otts, Moore, Jordan & Coale, Brewton, for appellee.
   HOUSTON, Justice.

This matter has been before the appellate courts of this State on two separate occasions. See Quimby v. Memorial Parks, Inc., 667 So.2d 1353 (Ala.1996) (“Memorial Parks I ”); Quimby v. Memorial Parks, Inc., 705 So.2d 430 (Ala.Civ.App.1997) (“Memorial Parks II”). Initially, the trial court entered a summary judgment for Memorial Parks, Inc. (“M.P.I.”), holding that the oral agreements Robert E. Quimby contended existed between him and M.P.I. were barred by the Statute of Frauds. Upon appeal, this Court reversed the summary judgment and remanded the case, holding that “[b]e-cause this agreement did not fall within the Statute of Frauds, summary judgment was improperly granted.” Memorial Parks I, 667 So.2d at 1356. Upon remand, the case was tried in the trial court; the trial court found as follows:

“While the Court does not dispute Quimby’s contention that he had an oral agreement with [M.P.I.] that [M.P.I.] would be responsible for the placement of all memorials sold prior to February 20, 1979, it is the opinion of the Court that Quimby has not satisfied the burden of proving that the agreement did not come within the Statute of Frauds....
“Accordingly, the Court finds that the oral agreement between Quimby and [M.P.I.] comes within the Statute of Frauds and is, therefore, unenforceable.”

(Emphasis added.) The trial court also found “that the oral agreement entered into by Quimby and [M.P.I.] that M.P.I. would be responsible for providing memorials sold by Quimby prior to February 20, 1979, is void under [Ala.Code 1975, § 8-9-2(1) ]....” (Emphasis added.)

After the trial court denied a post-judgment motion to vacate the order, Quimby appealed to this Court. Pursuant to Ala.Code 1975, § 12-2-7(6), this Court transferred the case to the Court of Civil Appeals. In its unanimous opinion, the Court of Civil Appeals noted that this Court had previously reversed the judgment of the trial court and that a trial was conducted on remand:

“The case was tried without a jury on October 10, 1995. The record reveals that the issue before the trial court was whether the contract was capable of performance within one year. The trial court entered a judgment in favor of [M.P.I.], finding that the ‘oral agreement entered into by [the parties] ... is void under [the Statute of Frauds]....’”

Memorial Parks II, 705 So.2d at 431. The Court of Civil Appeals reversed the trial court’s judgment, holding that the trial court erred in finding that the oral agreement was void under the Statute of Frauds as being incapable of performance within one year, and remanded the case “for proceedings consistent with this opinion.” 705 So.2d at 432.

On remand, the trial court, without hearing any additional evidence and in spite of its previous orders in this case, found that Quimby had not proven that an oral agreement existed between him and M.P.I. However, the trial court had previously found that such an agreement existed, and the law of the case will not permit the trial court to reverse itself:

“According to the doctrine of the law of the case, ‘whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.’ Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987).... Because the trial court entered [its] judgment on the same record as that before the Court of Civil Appeals, the facts on which the Court of Civil Appeals’ decision was predicated continue to be the facts of the case, and, therefore, the Court of Civil Appeals’ conclusions in its ... opinion are the law of the case.”

Ex parte S.T.S., 806 So.2d 336, 341-42 (Ala.2001). The trial court’s finding that Quimby and M.P.I. had entered into an oral agreement, as reflected in the Court of Civil Appeals’ decision, is the law of the case; the trial court cannot subsequently, under the same facts and based on the same evidence, reverse its findings on remand and hold that no oral agreement existed.

We reverse the judgment of the trial court, and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., and SEE, J., dissent.

SEE, Justice

(dissenting).

I disagree with the main opinion’s determination that when this case was originally remanded to the trial court, the trial court found as a matter of fact that Quimby and M.P.I. had entered into an oral agreement. Therefore, I must respectfully dissent.

The trial court entered a summary judgment in favor of M.P.I. on February 4, 1993. In its summary-judgment order, the trial court found as a matter of law that “the alleged oral agreement entered into by Quimby and [M.P.I.] that M.P.I. would be responsible for memorials sold by Quimby prior to February 20, 1979 is void under [the Statute of Frauds].” On remand from this Court, the trial court again found that the alleged oral agreement was barred by the Statute of Frauds. The trial court’s order stated in pertinent part:

“The alleged oral agreement between Quimby and [M.P.I.] contained no specific time within [which] the agreement was to be completed. Where the agreement expresses no specific time within which the contract is to be completed, it is a jury question as to the capability of complete performance within one year. Cunningham v. Lowery, 45 Ala.App. 700, 236 So.2d 709 (1970). This matter was tried before the [e]ourt without a jury[;] therefore, the [c]ourt becomes the fact-finder in this matter. The burden is upon Quimby to reasonably satisfy the [c]ourt by the evidence that the contract upon which his claim is founded is not void and does not come within the Statute of Frauds. While the [c]ourt does not dispute Quimby’s contention that he had an oral agreement with [M.P.I.] that [M.P.I.] would be responsible for the placement of all memorials sold prior to February 29, 1979, it is the opinion of the [c]ourt that Quimby has not satisfied the burden of proving that the agreement did not come within the Statute of Frauds.”

Upon a second remand of this case to the trial court, the trial court found that Quimby had not proven that there was an oral agreement between him and M.P.I. The trial court, referring to its order on the first remand, stated that “[o]n September 25, 1996, this [c]ourt issued its ruling again finding that the alleged oral agreement propounded by Quimby was violative of the Statute of Frauds.” In a footnote, the trial court states that “[w]hile the [c]ourt does not dispute Quimby’s contention that he had an oral agreement with [M.P.I.].... The [c]ourt clarifies that statement herein by pointing out that this [e]ourt ruled on September 25, 1996 that judgment was properly entered for [M.P.I.] based upon this [c]ourt’s opinion that the oral agreement alleged by Quimby was void under [the Statute of Frauds]. In other words, the [c]ourt made its ruling as a matter of law, and not of fact.” The trial court emphasized that it did not reach the factual issue before it, but ruled in favor of M.P.I. as a matter of law. Further, the trial court stated that “[i]t was not the intention of this [c]ourt in its order of September 25, 1996 to rule, as a matter of fact, that Quimby did have an oral agreement with [M.P.I.]. To state otherwise is a misinterpretation of this [c]ourt’s prior ruling.”

The main opinion relies on the doctrine of the law of the case to hold that, because the trial court previously found that there was an oral agreement, the law of the case will not permit the trial court to reverse itself. See Ex 'parte S.T.S., 806 So.2d 336, 341^42 (Ala.2001). I do not read the trial court’s initial order entering a summary judgment for M.P.I., or its September 25, 1996, order, to state as a finding of fact that an oral agreement existed. Indeed, in its final order, the trial court clarified that it had made no such factual finding. Because I do not conclude that the trial court found the existence of an oral contract, I see no occasion to apply the doctrine of the law of the case. Accordingly, I would affirm the trial court’s finding that Quimby had failed to meet his burden of proving that there was an oral agreement between Quimby and M.P.I.

MOORE, C.J., concurs.