source: Caselaw Access Project

author: McRAE, Presiding Justice,

license: Public Domain

text:
    HEARTSOUTH, PLLC f/k/a Hubsouth Cardiology v. Timothy BOYD, M.D.
    No. 2002-CA-01456-SCT.
    Supreme Court of Mississippi.
    Nov. 20, 2003.
    Rehearing Denied Feb. 26, 2004.

      Edmund L. Brunini, Stephen J. Carmo-dy, Jackson, attorneys for appellant.
    James Lawton Robertson, Jackson, Brenda Currie Jones, attorneys for Appel-lee.
    Before McRAE, P.J., EASLEY and CARLSON, JJ.
   McRAE, Presiding Justice,

for the Court.

¶ 1. HeartSouth, PLLC, f/k/a Hubsouth Cardiology (Heartsouth), filed a complaint in the Chancery Court of Lamar County, Mississippi, against Timothy Boyd, M.D., for damages, injunctive relief, and a declaratory judgment alleging that Dr. Boyd violated the terms of a physician employment agreement, specifically the covenant not to compete/not to solicit. Boyd filed a motion to dismiss pursuant to Rule 12(b)(6) of the Mississippi Rules of Civil Procedure claiming that by the very language of the physicians employment agreement, their contractual relationship had expired with no renewal being executed; therefore the covenant not to compete/not to solicit was inapplicable and/or in the alternative the one year time period of the covenant not to compete/not to solicit had expired sixteen days before the filing of the Complaint. The chancery court granted Boyd’s motion to dismiss. Aggrieved, HeartSouth, PLLC appeals to this Court and presents the following issues for review: (1) Did the chancery court err in finding that the physicians employment agreement had in fact expired; (2) Did the chancery court err in granting the Rule 12(b)(6) motion to dismiss; and (3) Even assuming the chancery court’s ruling was that of a Rule 56 motion for summary judgment, did the chancery court err in finding that there existed no issues of genuine material fact. We find that: (1) the chancery court did not err in granting the motion to dismiss; (2) the chancery court did not err even assuming the chancery court treated the motion as a Rule 56 motion for summary judgment; (3) the physicians employment agreement had in fact expired with no renewal; and (4) by the language of the physicians employment agreement, the covenant not to compete/not to solicit did not survive the agreement’s expiration.

FACTS AND PROCEDURAL HISTORY

¶ 2. Dr. Timothy Boyd (“Boyd”), a Mississippi native, is a board certified physician as a specialist in cardiology. In the Fall of 1999, Boyd was employed as a cardiologist at the Northeast Arkansas Clinic in Jonesboro, Arkansas. He was approached by Dr. Alan Covin (“Covin”), the manager and only member of Heart-South, PLLC (“HeartSouth”), a cardiology clinic with locations in south Mississippi. Covin made certain promises to Boyd concerning his eligibility for partnership in HeartSouth after the completion of his one year employment contract.

¶ 3. Boyd and HeartSouth entered into a physicians employment agreement (“employment agreement”) on October 15,1999. The employment agreement, in relevant part, provides:

PHYSICIANS EMPLOYMENT AGREEMENT
This Physician Employment Agreement is made on the 15th day of October, A.D., 1999, by and between HUB-SOUTH CARDIOLOGY, PLLC, a Mississippi professional limited liability company (hereinafter “Clinic”) and JOHN TIMOTHY BOYD, M.D., (hereinafter “Physician”) ...
1. TERM
Physician agrees to employment with Clinic and to actively pursue a medical practice in the Hattiesburg, Mississippi area for a period of one (1) year beginning on April 1, 2000 (hereinafter the “Effective Date”) ...
10. TERMINATION
This Physicians Employment Agreement shall be terminated upon the happening of any of the following events:
A. Either party has breached or violated any provision of this Physicians Employment Agreement, provided, however, that the breaching party shall be given written notice of such alleged breach or violation and thirty (30) days within which to correct said breach or violations;
F. Whenever the clinic and the Physician mutually agree to terminate in writing; ...
J. Clinic or Physician may elect to terminate his Physicians Employment Agreement for any reason upon ninety (90) days written notice to the other party ...
11. COVENANT NOT TO COMPETE/NOT TO SOLICIT
In order to further the legitimate business interests of Clinic and to protect the investment of Clinic in the development of its practice, although at the same time not preventing Physician from earning a livelihood, Physician agrees that during the term of this Physician Employment Agreement and for a period of one (1) year immediately following either the voluntary termination by Physician or termination by Clinic of Physician’s employment pursuant to this Physician Employment Agreement, with cause, the Physician shall not practice in his specialty of cardiology within a thirty (30) mile radius of any facility operated, owned, managed or served by Clinic during the term of this agreement. Clinic and Physician agree that if any portion of this section is found by a Court of competent jurisdiction to be unreasonable or other unenforceable, any such portion shall nevertheless be enforceable to the extent such Court deems reasonable and it is the intent of the parties herein to request that the Court reform such portion in order to make same enforceable. Physician further agrees that during the term of this Physician Employment Agreement and for a period of one (1) year immediately following the voluntary or involuntary termination of his employment pursuant to said Agreement, whether with or without cause, Physician shall not solicit any patient or employee of Clinic to follow Physician to his new practice. In the event Clinic terminates this Agreement without cause, Physician terminates this Agreement due to breach by Clinic, of if this Agreement terminates by its own terms without Physician being allowed to become a Member of Clinic; then this covenant not to compete will not be enforced by Clinic and will be deemed null and void.
12. ELIGIBILITY TO PURCHASE MEMBERSHIP UNITS
After Physician has completed the one (1) year term of this Agreement, then Physician shall be eligible for consideration for membership in HubSouth Cardiology, PLLC....
16. REMEDIES FOR BREACH
The parties acknowledge that the breach of any term of this Physician Employment Agreement by either of the parties may cause immediate and irreparable injury to the other party for which there will not exist an adequate remedy at law. Accordingly, such aggrieved party shall be entitled to request injunctive relief and specific performance, and in any legal action for such remedies, the party against whom such action is instituted agrees not to assert and shall not be deemed to have waived the defense that an adequate remedy at law exists.
17. WAIVER OF BREACH
No waiver of the enforcement of any provision in this Physician Employment Agreement shall be deemed a continuing waiver....
19. MISCELLANEOUS PROVISIONS ...
D. Amendments
This Physicians Employment Agreement constitutes the entire agreement of the parties and may not be changed orally, but only upon an amendment in writing signed by the parties hereto.

(emphasis added).

¶ 4. In the Spring of 2000, Boyd and his family moved to Hattiesburg, and he began work at HeartSouth on April 1, 2000. At the time of Boyd’s employment, Heart-South had clinics in Hattiesburg, Petal, McComb, and Wiggins. Boyd worked for HeartSouth through the one year period provided in the employment agreement with no renewal contract ever being executed between the parties. The one year expiration date of the contract was on March 31, 2001. Despite the promises made by Covin, Boyd was never offered a partnership in HeartSouth and only received an increase in pay after one year. Boyd became increasingly unhappy with his position at HeartSouth and began considering other employment options.

¶ 5. In February of 2002, Covin was injured in an auto accident. Thereafter, Covin issued a memo to Boyd and other physicians employed by HeartSouth seeking suggestions concerning “ideas for membership” in HeartSouth. Negotiations as to the “ideas of membership” then ensued. After consulting an attorney, Boyd sent a letter to HeartSouth regarding what he believed to be events constituting “breach” of his initial employment agreement.

¶ 6. On March 12, 2002, attorneys for Boyd and Mohinder P.S. Randhawa, Jr., M.D., sent a letter to HeartSouth and Co-vin which specifically stated:

We have considered the ideas you expressed and, after doing so, we can only respond that we do not find your proposals to be workable.
Dr. Randhawa and Dr. Boyd intend to discontinue their association with HeartSouth, PLLC, and to establish their practice separate and apart from HeartSouth.

(emphasis added). Two days later on March 14, 2002, Boyd sent a letter of resignation to Covin and HeartSouth effective March 18, 2002. Thereafter, Boyd joined the Heart Center. In response to Boyd’s resignation and new employment, HeartSouth sent a certified letter on April 1, 2002, ordering Boyd to “cease and desist” because he was in violation of Section 11 of the employment agreement which provided for the covenant not to compete/not to solicit (“covenant”).

¶ 7. On April 16, 2002, HeartSouth filed a complaint in the Chancery Court of Lamar County against Boyd seeking damages, injunctive relief, and a declaratory judgment. Exhibit A to the complaint, was a copy of the employment agreement. Exhibit B to the complaint was a copy of the certified cease and desist letter sent to Boyd on April 1, 2002. That same day, HeartSouth also filed a motion for a preliminary injunction which also attached as exhibits the employment agreement and certified “cease and desist” letter sent to Boyd.

¶ 8. On May 29, 2002, Boyd filed a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted. Attached as exhibits to the motion included the employment agreement and a letter dated March 6, 2002 from HeartSouth to Boyd in response to Boyd’s allegations that during the term of the employment agreement, HeartSouth had breached the contract. In his motion, Boyd claimed that the employment agreement had expired and terminated by its own terms on March 31, 2001 and had not been renewed. In support of his claim, Boyd pointed to the March 6, 2002, letter sent by HeartSouth’s attorney in response to the allegations of breach which specifically stated:

You stated in the first paragraph of your letter that you are “providing Heart-South with notice of Dr. Boyd’s intent to terminate the agreement if HeartSouth has not cured each of the following breaches” of the employment agreement. Please be adviced [advised] that in Paragraph 1 of the Physician Employment Agreement (the “Agreement”), it is provided that the contract terminates one year form February 1, 2000. Accordingly, the contract terminated on the date and the relationship that has existed between the parties since that day is that of “employment at will.”

(emphasis added).

¶ 9. On June 3, 2002, HeartSouth filed its first response to Boyd’s motion to dismiss. Attached as exhibits to this response were excerpts from the deposition testimony of Boyd and the March 4, 2002, letter from Boyd’s attorneys advising HeartSouth of Boyd’s intent to “discontinue” their employment relationship. The thrust of HeartSouth’s argument was that Boyd, by continuing to work at Heart-South after the expiration of the one year term, subjected himself to continued enforcement of the contract. HeartSouth also filed an answer to the counterclaim and thirty-party complaint.

¶ 10. On June 10, 2002, HeartSouth filed its second response to Boyd’s motion to dismiss and attached eight more exhibits. The eight exhibits included: (1) excerpts from the deposition testimony of Boyd; (2) an affidavit from Covin; (3) an affidavit from Dr. Dieter W. Schneider, M.D., a physician employed during and after Boyd’s employment; (4) Minutes from a February 1, 2002, manager’s meeting; (5) the February 14, 2002, memo from Covin to Boyd and other physicians employed by HeartSouth; (6) a February 20, 2002, letter from an attorney concerning review of the employment agreement; (7) the March 12, 2002, letter from Boyd’s attorney informing HeartSouth of Boyd’s intent to “discontinue” his employment relationship with HeartSouth; and (8) Boyd’s March 14, 2002, resignation letter.

¶ 11. On July 12, 2002, the chancery court issued its memorandum opinion on Boyd’s motion to dismiss holding that the employment agreement had in fact lapsed and had no legal effect; therefore an action for breach of contract, damages, and injunctive relief could not be maintained as a “valid and binding contract” did not exist. The chancery court reasoned that the employment agreement, by its own terms, provided for a one year contract with no provisions for renewal, extension, or holdover; therefore the contract expired one year after April 1, 2000, or March 31, 2001. On April 16, 2002, when the complaint was filed, there did not exist a valid and binding contract between plaintiff and defendant upon which this action could be based. The chancery court found that the covenant was an “integral part” of the agreement which did not provide for sever-ability. Alternatively, the chancery court found that, at most, if the covenant stayed in effect for one year after the agreement’s lapse, the covenant still expired sixteen days before the lawsuit was filed. Soon thereafter, the chancery court issued a M.R.C.P. 54(b) certificate and judgment.

¶ 12. Aggrieved, HeartSouth appeals to this Court.

STANDARD OF REVIEW

¶ 13. A Rule 12(b)(6) motion should not be granted unless it appears “to a certainty that the plaintiff is entitled to no relief under any set of facts that could be proved in support the claim.” M.R.C.P. 12 emt. We have stated that a Rule 12(b)(6) motion to dismiss “should not be granted unless it appears beyond a reasonable doubt that the Plaintiff can prove no set of facts in support of his claim which entitles him to relief.” Butler v. Bd. of Supervisors for Hinds County, 659 So.2d 578, 581 (Miss.1995) (citations omitted). When reviewing the trial court’s grant of a motion to dismiss pursuant to Rule 12(b)(6), this Court employs de novo review. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990).

¶ 14. As HeartSouth has also raised the possibility that the Rule 12(b)(6) motion may have been converted by the chancery court into a Rule 56(b) motion for summary judgment, the applicable standards for reviewing a Rule 56 summary judgment will also be discussed. A Rule 56(b) motion for summary judgment should not be granted unless “no genuine issues of material fact exist.” M.R.C.P. 56(b). The moving party must be entitled to judgment as a matter of law, and “the burden of demonstrating that there is no genuine issue of material fact falls on the party requesting the summary judgment.” Mozingo v. Scharf, 828 So.2d 1246, 1249 (Miss.2002) (citing Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 63-64 (Miss.1988)). “The evidence is viewed in the light most favorable to the non-moving party.” Watts v. Tsang, 828 So.2d 785, 791 (Miss.2002) (quoting Conley v. Warren, 797 So.2d 881, 882 (Miss.2001) (citations omitted)). When ruling on a trial court’s grant or denial of a motion for summary judgment, we employ a de novo standard of review. Id. at 1249 (citing Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996)).

DISCUSSION

I. DID THE CHANCERY COURT ERR IN GRANTING DR. TIMOTHY BOYD’S RULE 12(B)(6) MOTION TO DISMISS?

¶ 15. HeartSouth argues that the chancery court committed reversible error under this Court’s holdings in Palmer v. Biloxi Regional Medical Center, Inc., 649 So.2d 179 (Miss.1994), and Jones v. Regency Toyota, Inc., 798 So.2d 474 (Miss.2001), by looking outside the complaint to other documents and evidence and thereafter ruling on Boyd’s Rule 12(b)(6) motion to dismiss. HeartSouth further argues that it was improper for Boyd to attach as an exhibit to his motion to dismiss a March 6, 2002, letter from HeartSouth to Boyd regarding his decision to cease negotiations concerning a possible membership in HeartSouth.

¶ 16. Boyd argues that the chancery court did not err in dismissing under Rule 12(b)(6). He argues that the chancery court did not have to look further than the complaint, since the employment agreement was attached the complaint for the court’s review. He further argues that if any party improperly presented documentation and evidence which would cause the chancery court to look outside the complaint, it was HeartSouth.

¶ 17. First, HeartSouth complains that the chancery court erroneously looked outside of the complaint when ruling upon the Rule 12(b)(6) motion. It is true that according to Rule 12(b)(6) and (c), the chancery court in ruling upon a motion to dismiss should not look outside the pleadings. M.R.C.P. 12(b)(6) & (c). Heart-South argues that every time a trial court considers evidence and documentation outside of the complaint when ruling upon a Rule 12(b)(6) motion, then a reversible error has been committed under this Court’s holding in Jones, 798 So.2d 474. Suffice it to say that HeartSouth’s understanding of Jones is limited. As far as looking outside the pleadings, HeartSouth is in no position to complain. HeartSouth is the very one who submitted a total of ten exhibits with its two responses to the motion to dismiss. It is more than a little hypocritical for HeartSouth now to complain about the presentation of Boyd’s two exhibits with his motion to dismiss when it submitted ten exhibits for consideration which included some fifty-three pages of excerpts from Boyd’s deposition testimony.

¶ 18. HeartSouth attached the employment agreement to the complaint as an exhibit. The chancery court was free to review the employment agreement and look at its terms and provisions. Rule 10(c) of the Mississippi Rules of Civil Procedure provides that, “[a] copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” M.R.C.P. 10(c). Since the employment agreement as an “exhibit” to the pleading is a “part thereof,” the chancery court was free to review the agreement in ruling upon a Rule 12(b)(6) motion to dismiss. Upon examination of the employment agreement, it is not hard to see why the chancery court found that a Rule 12(b)(6) motion was proper for failure to state a claim upon which relief may be granted.

¶ 19. Second, HeartSouth argues that the chancery court must take as true the specific allegations made in the complaint that “there is a valid and enforceable contract.” This is not so. The chancery court is only obliged to take the “factual” allegations made in the complaint as true, not the “legal” allegations made in the complaint. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990) (citing Davidson v. Georgia, 622 F.2d 895, 897 (5th Cir.1980)). The chancery court had the employment agreement for review and was not obliged to ignore the plain language of the employment agreement and instead accept the unsubstantiated allegations of HeartSouth’s legal claims. Furthermore, the arguments made by HeartSouth concerning an “implied renewal” of the employment contract and/or an employment contract based on “the parties actions” are not supported by case law in this State. This State has never recognized an employment contract based on inferences from “party actions” or “implied renewal.” Such a holding would be contrary to the “employment at will” doctrine and the parol evidence rule which are the established precedent on the issue. See McArn v. Allied Bruce-Terminix Co., 626 So.2d 603 (Miss.1993); Housing Auth., City of Laurel v. Gatlin, 738 So.2d 249 (Miss.Ct.App.1998). As will be discussed further in greater detail, the employment agreement which was presented to the chancery court was not a valid enforceable contract as it had lapsed by its own terms without renewal over a year before the lawsuit was filed. As it is simple contract law that a valid and enforceable contract is required to maintain an action for breach of contract or injunctive relief thereon, the chancery court did not err by granting the Rule 12(b)(6) motion to dismiss. See Garner v. Hickman, 733 So.2d 191, 195 (Miss.1999).

¶20. Third, HeartSouth argues that pursuant to Rule 408 of the Mississippi Rules of Evidence, the March 6, 2002, letter was a “compromise” and/or “settlement” letter which should not have been admitted into evidence. Rule 408 specifically provides that:

Evidence of (1) furnishing or offering or promising to furnish; or (2) acceptance or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or providing an effort to obstruct a criminal investigation or prosecution.

M.R.E. 408 (emphasis added). Under the circumstances which existed on March 6, 2002, when this letter was prepared and executed, it is difficult to determine whether the letter is in fact a “compromise” and/or “settlement” letter or whether it was a letter merely relating to Boyd’s decision to discontinue his employment relationship with Covin and HeartSouth. As of March 6, 2002, no controversy existed concerning Boyd’s practice of medicine in violation of the covenant or in breach of contract. The letter is a response to Boyd’s decision to leave the HeartSouth practice which occurred before any controversy concerning breach of contract occurred. The most significant passage in the letter, which tends to signify that indeed it is not a “compromise” and/or “settlement” letter, includes the following statements:

Please be advised that in Paragraph 1 of the PHYSICIAN EMPLOYMENT AGREEMENT (the “Agreement”) it is provided that the contract terminates one year from February 1, 2000. Accordingly, the contract terminated on that date and the relationship that has existed between the parties since that day is that of “employment at will.”

(emphasis added). By its own statement, HeartSouth acknowledged that the employment agreement was no longer in force. At best, the letter can be characterized as mere “puffing” in an attempt by Covin and HeartSouth to downplay the significance of Boyd leaving the cardiology practice and any claims made by Boyd during negotiations for “membership” regarding his right and eligibility for membership in HeartSouth.

II. ASSUMING THE CHANCERY COURT’S RULING WAS THAT OF A RULE 56 MOTION FOR SUMMARY JUDGMENT, DID THE CHANCERY COURT ERR IN FINDING THAT THERE EXISTED NO DISPUTED ISSUES OF GENUINE MATERIAL FACT?

¶21. HeartSouth argues that if the chancery court’s ruling merely amounted to a dismissal on the basis of summary judgment; then the chancery court committed reversible error by failing to follow the proper procedure for conversion of a Rule 12(b)(6) motion into a rule 56 motion for summary judgment. HeartSouth argues that according to this Court’s rulings in Palmer, 649 So.2d 179, and Jones, 798 So.2d 474, the chancery court’s treatment of the Rule 12(b)(6) motion like that of a Rule 56 motion amounts to reversible error. Lastly, HeartSouth argues that there exists disputed issues of material fact; therefore summary judgment was not appropriate.

¶ 22. Boyd argues that even if the chancery court erred in its conversion of the Rule 12(b)(6) motion into a Rule 56 motion; the Court still did not commit reversible error. Furthermore, Boyd argues that the facts in Palmer and Jones are distinguishable and the mandates of those holdings are satisfied despite the chancery court’s failure to formally convert the motion properly.

¶23. As already stated in Issue I, based on the allegations contained in the complaint, the language of the employment agreement, and prevailing precedent concerning “at will employment” and parol evidence; the chancery court’s order which granted Boyd’s motion to dismiss was not error.

III. DID THE CHANCERY COURT ERR IN FINDING THAT THE PHYSICIANS EMPLOYMENT AGREEMENT DID IN FACT EXPIRE ON MARCH 31, 2001?

¶ 24. Next, HeartSouth argues that the chancery court erred by finding that the employment agreement was an expired contract and therefore not valid and enforceable. The thrust of HeartSouth’s argument centers around its assertion that some sort of “implied contract” or contract created by “the party actions” existed and thereby operated as a renewal of the employment agreement. HeartSouth argues that, since Boyd did not ask for a new contract and remained an employee of HeartSouth after the lapse of the one year specified in the employment agreement, he acquiesced to its renewal and his actions so create a binding employment contract. HeartSouth also argues that the chancery court’s ruling, whether under Rule 12(b)(6) or Rule 56, failed to consider the allegations made by HeartSouth that a valid enforceable contract did exist for which relief may be granted.

¶25. Boyd argues that by the employment agreement’s own language, the contract expired almost exactly one year before he decided to “discontinue” his employment relationship with Heart-South. He further argues, that based on the “employment at will” doctrine, he cannot be forced into an implied contract. Boyd also asserts that under the parol evidence rule and the language of the contract, the employment agreement could not be modified by oral understandings between the parties.

¶ 26. As this is an issue of contract construction, simple contract principles apply. The Court’s analysis when confronted with the interpretation of a contract is three tiered. “First, the court will attempt to ascertain intent by examining the language contained within the ‘four corners’ of the instrument in dispute.” Pursue Energy Corp. v. Perkins, 558 So.2d 349 (Miss.1990) (citing Pfisterer v. Noble, 320 So.2d 383, 384 (Miss.1975)). Second, “[i]f examination solely of the language within the instrument’s four corners does not yield a clear understanding of the parties’ intent, the court will [implement] ... applicable ‘canons’ of construction.” Pursue Energy Corp., 558 So.2d at 352, (citing Clark v. Carter, 351 So.2d 1333, 1334 & 1336 (Miss.1977)). Third, “if intent remains unascertainable (i.e., the instrument is still considered ambiguous), then the court may resort to [the] ... consideration of extrinsic or parol evidence.” Pursue Energy Corp., 558 So.2d at 353.

A. FOUR CORNERS OF THE INSTRUMENT.

¶ 27. The goal of this Court is to give effect to the intention of the parties. “The general rule is the intention of the parties must be drawn from the words of the whole contract, and if, viewing the language used, it is clear and explicit, then the court must give effect to this contract unless it contravenes public policy.” Jones v. Miss. Farms Co., 116 Miss. 295, 76 So. 880, 884 (1917). “One should look to the ‘four corners’ of the contract whenever possible to determine how to interpret it.” Warwick, 738 So.2d at 214 (citing McKee v. McKee, 568 So.2d 262, 266 (Miss.1990)). “ ‘Therefore, when interpreting a contract, the court’s concern is not nearly so much with what the parties may have intended but with what they said, since the words employed are by far the best resource for ascertaining the intent and assigning meaning with fairness and accuracy.’ ” Id. (quoting Simmons v. Bank of Miss., 593 So.2d 40, 42-43 (Miss.1992)). Contracts must be interpreted by objective, not subjective standards, therefore “[c]ourts must ascertain the meaning of the language actually used, and not ‘some possible but unexpressed intent of the parties.’ ” IP Timberlands Operating Co. v. Denmiss Corp., 726 So.2d 96, 105 (Miss.1998) (quoting Cherry v. Anthony, Gibbs, Sage, 501 So.2d 416, 416 (Miss.1987)). The parties disagreement over the meaning of a word or provision, alone, does not render an instrument ambiguous. IP Timberlands Operating Co., 726 So.2d at 105 (citing Whittington v. Whittington, 608 So.2d 1274, 1278 (Miss.1992)).

¶ 28. Applying these contract principles to the facts leads to the conclusion that the contract between HeartSouth and Boyd was not ambiguous and clearly provided for one year of validity and enforceability. Specifically the “TERM” provision of the employment agreement provided that “[p]hysician agrees to employment with Clinic and to actively pursue a medical practice in the Hattiesburg, Mississippi area for a period of one year beginning on April 1, 2000 (hereinafter the “Effective Date”).” (emphasis added). The contract language clearly provides that the employment agreement is valid for one year of employment which ended on March 31, 2001. No renewal of this agreement was ever executed, and neither party claims that another written contract has been executed. There is also no argument or evidence of any kind concerning an “oral” contract for employment between the parties. Boyd did not discontinue his employment relationship with HeartSouth until March 14, 2002, to be effective on March 18, 2002. This was almost one year after the employment agreement lapsed by its own terms. HeartSouth did not file its complaint for breach of contract until April 16, 2002, which is exactly one year and sixteen days after the employment agreement lapsed.

¶ 29. HeartSouth argues that, since the “TERMINATION” clause of the agreement did not provide for termination upon the one year lapse, the agreement is still in force. If HeartSouth wanted to provide for automatic renewal upon lapse, then it should have included such language in its contract. Furthermore, it is absurd to think that a contract such as this does not lapse by its own “terms,” but requires a specific provision in the “TERMINATION” provision to that effect. As was stated earlier “[c]ourts must ascertain the meaning of the language actually used, and not ‘some possible but unexpressed intent of the parties.’ ” IP Timberlands Operating Co., 726 So.2d at 105 (quoting Cherry, 501 So.2d at 416). The courts are “ ‘concerned with what contracting parties have said to each, not some secret thought of one [that was] not communicated to the other.’ ” Palmere v. Curtis, 789 So.2d 126, 131 (Miss.Ct.App.2001) (quoting Miss. State Highway Comm’n v. Patterson Enter., Ltd., 627 So.2d 261, 263 (Miss.1993)). Regardless of HeartSouth’s “after the fact” intent regarding the lapse of the agreement, it did not so provide for automatic renewal in its contract.

¶ 30. Furthermore, HeartSouth’s arguments concerning “implied renewal” or a contract created by “the parties’ actions” is also without merit and against the mandates provided in the employment agreement. The “Amendments” provision of the employment agreement specifically provides that “[t]his Physicians Employment Agreement constitutes the entire agreement of the parties and may not be changed orally, but only upon an amendment in writing signed by the parties hereto.” (emphasis added). The agreement clearly provides that an “amendment in writing signed by the parties” is required for the valid change of any term of the contract. The agreement by its own terms may not be changed “orally.” This contract language is entirely repugnant to HeartSouth’s claims that the agreement was “renewed by implication” or that Boyd’s “actions” either support a renewal or a new contractual relationship. Furthermore, HeartSouth’s argument that Boyd’s actions created a new contract, specifically Boyd’s failure to inform it of the lapse of his employment agreement, are without merit.

¶ 31. Lastly, HeartSouth’s argument that the chancery court must view the allegations in the complaint regarding the validity of the employment agreement as true when ruling on a Rule 12(b)(6) motion is also without merit. The chancery court when ruling on a Rule 12(b)(6) motion is only required to take the factual allegations in the complaint as true, the court is not required to take the plaintiffs’ version of the legal allegations in the complaint as true. Tucker, 558 So.2d at 872 (citing Davidson, 622 F.2d at 897). Under the present circumstances, the chancery court had the employment agreement available for review since HeartSouth attached it to the complaint and was free to determine on its own whether “legally” the agreement constituted a valid and enforceable contract.

¶ 32. Under the four corners rule, there is no ambiguity, and the contract is clear. “When an instrument’s substance is determined to be clear and unambiguous, the parties’ intent must be effectuated.” Pursue Energy Corp., 558 So.2d at 352 (citing Pfisterer, 320 So.2d at 384). Since no ambiguity exists, by its own language the employment agreement had in fact lapsed one year before Boyd left HeartSouth and one year and sixteen days before Heart-South filed its complaint for breach of contract. Since the agreement is not ambiguous, we do not address canons of construction.

B. PAROL EVIDENCE.

¶ 33. HeartSouth also attempts to prove “implied renewal” and the creation of a contract by “the parties actions” through the use of parol evidence. Heart-South asserts that Boyd’s actions of not informing HeartSouth of the agreements lapse, continuing to work as if an employment relationship exists, and entering negotiations based on the “ELIGIBILITY TO PURCHASE MEMBERSHIP UNITS” clause; clearly support a finding that a valid employment contract exists. This argument fails for three reasons.

¶ 34. First, as already stated above, the agreements “Amendments” provision forbids oral modification or any changes to the contract without a written amendment signed by the parties. There has been no written amendment signed by either party; therefore there can be no amendment to the terms of the contract. The agreement in fact lapsed on March 31, 2001.

¶ 35. Second, as will be discussed further below, HeartSouth’s argument is contrary to the “employment at will” doctrine. See McArn, 626 So.2d 603. This Court has carved out no exception for the circumstances found herein.

If 36. Third, the employment agreement is not ambiguous; therefore parol evidence as to oral modification or the creation of a contract with differing terms by “implication,” cannot be allowed. It is a well settled principle of contract law that parol evidence should never be admitted where the terms of a contract are clear and unambiguous. Turner, 799 So.2d at 32 (citing Estate of Parker v. Dorchak, 673 So.2d 1379, 1382 (Miss.1996)). “One of the fundamental principles of contract law is that parol evidence will not be received to vary or alter the terms of a written agreement that is intended to express the entire agreement of the parties on the subject matter at hand.” Housing Auth., City of Laurel v. Gatlin, 738 So.2d 249, 251 (Miss.Ct.App.1998) (citing Grenada Auto Co. v. Waldrop, 188 Miss. 468, 471, 195 So. 491, 492 (1940); Perrault v. White Sewing Mach. Co., 157 Miss. 167, 176, 127 So. 271, 274 (1930); Edrington v. Stephens, 148 Miss. 583, 586, 114 So. 387, 389 (1927); Kerr v. Calvit, 1 Miss. 115, 118 (1822)). “ ‘Parol evidence as to surrounding circumstances and intent may be brought in where the contract is ambiguous, but where ... the contract [is] found to be unambiguous it has no place’ ” Heritage Cablevision v. New Albany Elec. Power System ..., 646 So.2d 1305, 1313 (Miss.1994) (quoting Cherry, 501 So.2d at 419). Additionally, parol evidence has no place until after the court has looked to the four corners of the contract and applied contract canons of construction. Martin v. Fly Timber Co., 825 So.2d 691, 695 (Miss.Ct.App.2002) (citing Pursue Energy Corp., 558 So.2d at 352). In Frierson v. Delta Outdoor, Inc., 794 So.2d 220, 224 (Miss.2001) and Cooper v. Crabb, 587 So.2d 236, 241 (Miss.1991), this Court held that the rule against the admissibility of parol evidence when a contract is unambiguous is “not merely a rule of evidence, but is one of substantive law.” Lastly, in Housing Auth., City of Laurel v. Gatlin, 738 So.2d 249, 251 (Miss.Ct.App.1998), held that the parol evidence rule precludes the consideration of evidence which purports to show an oral modification of an employment contract.

C. EMPLOYMENT AT WILL DOCTRINE.

¶ 37. HeartSouth argues that Boyd is subject to an “implied contract” which was created by the actions of the parties and for which no terms have been written. HeartSouth argues that Boyd’s actions created a contract between the parties and therefore subjects him to the terms of the original employment agreement.

¶ 38. HeartSouth’s argument is contrary to the “employment at will” doctrine. HeartSouth would have this Court hold Boyd subject to an “implied contract” for which no terms exist. It would be repugnant to precedent to allow HeartSouth to hold Boyd liable under a “fictitious” employment contract and impose terms upon him for which he never agreed to abide.

¶ 39. Mississippi has followed the “employment at will” doctrine since 1858. McArn, 626 So.2d at 606 (citing Perry v. Sears, Roebuck & Co., 508 So.2d 1086, 1088 (Miss.1987)). The “employment at will” doctrine provides that “an employment contact at will may be terminated by either party with or without justification.” Id. at 606 (quoting Kelly v. Miss.Valley Gas Co., 397 So.2d 874, 877 (Miss.1981)). “[AJbsent an employment contract expressly providing to the contrary, an employee may be discharged at the employer’s will for good reason, bad reason, or no reason at all, excepting only reasons independently declared legally impermissible.” McArn, 626 So.2d at 606 (quoting Shaw v. Burchfield, 481 So.2d 247, 253-54 (Miss.1985)). See also Miss. Employment Sec. Comm’n v. Philadelphia Mun. Separate Sch. Dist., 437 So.2d 388, 397 (Miss.1983). This Court has only recognized two exceptions in tort to the “doctrine of employment at will” in McAm wherein we stated:

We are of the opinion that there should be in at least two circumstances, a narrow public policy exception to the employment at will doctrine and this should be so whether there is a written contract or not: (1) an employee who refuses to participate in an illegal act as in Laws [v. Aetna Finance Co., 667 F.Supp. 342 (N.D.Miss.1987),] shall not be barred by the common law rule of employment at will from bringing an action in tort for damages against his employer; (2) an employee who is discharged for reporting illegal acts of his employer to the employer or anyone else is not barred by the employment at will doctrine from bringing action in tort for damages against his employer.

626 So.2d at 607.

¶ 40. HeartSouth’s “implied contract” is contrary to our holdings concerning “employment at will.” If this Court found that HeartSouth through the use of parol evidence could prove an “implied contract” and thereby seek damages for the breach of such contract, then employees could also get around the “employment at will” doctrine and sue their employers for breach of an “implied contract” for employment. Under HeartSouth’s theory, no assent to be bound is necessary for an “implied contract.” All that HeartSouth argues that is needed is “actions” which are consistent with a contractual relationship. HeartSouth’s argument is without merit and contrary to established precedent.

¶ 41. In sum, we have stated that “ ‘[t]he right to contract is fundamental to our jurisprudence and absent mutual mistake, fraud and/or illegality, the courts do not have the authority to modify, add to, or subtract from the terms of the contract validly executed between two parties.’ ” Wallace v. United Miss. Bank, 726 So.2d 578, 584 (Miss.1998). (quoting First Nat’l Bank of Vicksburg v. Caruthers, 443 So.2d 861, 864 (Miss.1983)). “ ‘Contracts are solemn obligations and it is not the function of the courts to make contracts for parties, but rather to give effect to them as written.’ ” Miller v. Miss. Stone Co., 379 So.2d 919 (Miss.1980) (quoting Roberts v. Corum, 236 Miss. 809, 815, 112 So.2d 550, 556 (Miss.1959)). For these reasons, we cannot at the request of Heartsouth hold Boyd subject to an employment contract that does not exist.

IV. DID THE CHANCERY COURT ERR IN FINDING THAT THE COVENANT NOT TO COMPETE/NOT TO SOLICIT DID NOT SURVIVE THE EXPIRATION OF THE EMPLOYMENT AGREEMENT?

¶ 42. HeartSouth argues that the covenant not to compete/not to solicit survived the lapse of the employment agreement and supports its breach of contract claim. It argues that lapse of the agreement had no effect on the covenant’s enforceability.

¶ 43. Boyd argues that by the employment agreements own terms, the covenant expired upon lapse of the agreement. He argues that the method of termination or lapse of the agreement is the turning fact which supports the conclusion that the covenant expired on March 31, 2001, along with the other provisions in the employment agreement.

¶ 44. Again, simple contract law is applicable. As the basic principles have already been stated in Issue III, they need not be fully provided for here. Adopting the three-step process and the rationale discussed in Issue III, leads to the conclusion that the covenant did in fact expire on March 31, 2001, when the entire agreement lapsed. In addition to those arguments discussed in Issue III, HeartSouth presents several new arguments which will be discussed here. Those arguments fully fleshed out in Issue III, will only be referenced.

¶ 45. First, HeartSouth argues that despite the one year term provided for in the employment agreement, the covenant did not lapse with the agreement. As already stated earlier the covenant’s own language provided specifically that “[i]n the event Clinic terminates this Agreement without cause, Physician terminates this Agreement due to breach by Clinic, of if this Agreement terminates by its own terms without Physician being allowed to become a Member of Clinic; then this covenant not to compete will not be enforced by Clinic and will be deemed null and void.” (emphasis added). By its own terms, the covenant was “deemed null and void” if the “Agreement terminated by its own terms without Physician being allowed to become a Member of the Clinic.” This sentence squarely applies to the present circumstances and clearly and unambiguously provides for the termination of the covenant’s enforcement upon lapse of the agreement if the physician has not became a member of the clinic. As already discussed, Boyd never became a member of the clinic and the agreement lapsed; therefore the covenant is not valid and enforceable but is “null and void.”

¶ 46. Second, HeartSouth also argues that technically the agreement was never terminated in compliance with the “TERMINATION” provision of the agreement; therefore the covenant did not terminate either. This argument is also without merit. Not only does the covenant expressly provide for lapse of the agreement and the “TERM” provision provide for only a one year term; but the “TERMINATION” provision and its language does not even mention a proper procedure for “termination” upon lapse. As an afterthought, HeartSouth may now feel that they should have included a provision in the “TERMINATION” clause for lapse; but that does not support a finding by this Court that such a provision is and should be part of the contract. If HeartSouth wanted to provide for automatic renewal upon lapse or specific requirements for lapse to effectively terminate the agreement, then it should have included such language in their contract. Furthermore, it is absurd to think that a contract such as this did not lapse by its own “terms,” but required a specific provision in the “TERMINATION” provision to that effect. Additionally, even if this Court were to entertain such an absurd assertion; then the applicable canons of construction would force this Court to construe the instrument against HeartSouth, the maker, and find that the employment agreement had in fact terminated by way of lapse on March 31, 2001.

¶ 47. Third, by its own terms; in order for the covenant to be invoked and the one year period of no-compete to be initiated; “termination” of the contract is necessary. The agreement states that the covenant is invoked for “one (1) year immediately following either the voluntary termination by Physician or termination by Clinic of Physician’s employment pursuant to this Physician Employment Agreement, with cause.” (emphasis added). The agreement was never “terminated” by either party. The agreement merely lapsed for want of renewal. Furthermore, as “lapse” is not a defined action for the purposes of the “TERMINATION” clause; there can be little doubt that the covenant was not ever intended to be invoked and enforced upon lapse of the employment agreement.

V. ALTERNATIVELY, DID THE CHANCERY COURT ERR IN FINDING THAT THE COVENANT NOT TO COMPETE/NOT TO SOLICIT IN FACT EXPIRED SIXTEEN (16) DAYS BEFORE THE FILING OF THE COMPLAINT; THEREFORE MAKING DISMISSAL UNDER RULE 12(B)(6) APPROPRIATE?

VI. IS THE COVENANT NOT TO COMPETE/NOT TO SOLICIT CONTRARY TO PUBLIC POLICY AND PATIENTS RIGHTS AND THEREFORE INVALID?

¶ 48. Having already found that the employment agreement terminated by its own terms on March 31, 2001, and that the covenant did not survive the lapse by the terms provided in the contract, we need not discuss these issues.

CONCLUSION

¶ 49. The chancery court did not err in granting Boyd’s motion to dismiss for failure to state a claim as the employment agreement upon which HeartSouth’s claims were based had in fact lapsed one year before the complaint was filed. The chancery court did not err in reviewing additional documentation in ruling upon the motion to dismiss. Furthermore, even assuming the motion to dismiss was more properly a motion for summary judgment; the chancery court still did not err in finding that no disputed issues of genuine material fact existed. Lastly, the chancery court did not err in finding that the employment agreement in question had in fact expired and was not renewed by “implication.” Therefore, we affirm the learned chancellor’s judgment.

¶ 50. AFFIRMED.

SMITH, P.J., WALLER, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. PITTMAN, C.J., AND COBB, J., CONCUR IN RESULT ONLY. DIAZ, J., NOT PARTICIPATING.

      . HeartSouth goes into great detail concerning the “horrific'' auto accident and resulting injuries suffered by Covin. HeartSouth also attempts to interject facts to support some sort of "conspiracy theory,” whereby Boyd and another physician were attempting to take advantage of Covin’s injured condition. As these statements of fact are unreliable and irrelevant to the issues at hand, they will not be discussed.

      . Mohinder P.S. Randhawa, Jr., M.D., is not a party to this lawsuit.

      . See also Thornhill v. System Fuels, Inc., 523 So.2d 983, 998 (Miss.1988) (holding that it is the duty of a court to construe an instrument as written).

      . See also St. Regis Paper Co. v. Floyd, 238 So.2d 740, 744 (Miss.1970) (holding the court should give great weight to the writing in the instrument when determining intent).


author: COBB, Justice,

text:
    Frederick E. SCHUCK v. STATE of Mississippi.
    No. 2001-KA-00979-SCT.
    Supreme Court of Mississippi.
    Dec. 4, 2003.

      Ross Parker Simons, Appellant, pro se.
    Office of Attorney General by Deirdre McCrory, Attorney for Appellee.
   COBB, Justice,

for the Court.

¶ 1. Frederick E. Schuck (hereafter Schuck or Freddie) was indicted by the George County grand jury for the murder of Byron Beasley by deliberate design. Schuck was represented at trial by private retained counsel. The jury found him guilty of murder, and Schuck was sentenced to a term of life imprisonment in the custody of the Mississippi Department of Corrections. Aggrieved by the judgment rendered against him, Schuck has perfected an appeal to this Court through an appointed appellate public defender.

FACTS

¶ 2. David Cooper testified that the morning of December 7, 1996, he went to Schuck’s trailer, where he talked for a while with Schuck and Schuck’s cousin, Byron “Chucky” Beasley (Beasley). Later, the three of them went to Harold’s liquor store, purchased a half gallon of whiskey, and then went to Cooper’s house, ate lunch, and Schuck and Beasley consumed some of the liquor. After lunch Cooper drove Schuck and Beasley back home and they “sat around there for about two hours” and talked until Beasley laid down on the bed, and Schuck appeared to be getting sleepy, so Cooper left.

¶ 3. Beasley’s nephew, Mitchell Davis, testified that he and a “buddy” went to Schuck’s trailer to visit Beasley that afternoon. When they arrived, Davis saw Schuck, holding a knife and pouring lighter fluid onto Beasley’s clothes. Schuck first told Davis that he (Schuck) “was fixing to burn” Beasley’s clothes, but then said “no, that he wasn’t that low, just load them up and take them to him.” Schuck further testified “they had got in a fight over a gallon of whiskey that he [Beasley] had hid from him,” and Davis testified that Schuck said “that he was going to kill him” [Beasley] when he “come back over there.” Davis took the clothes to the residence of Schuck’s father, where Beasley was sleeping, and gave them to Beasley.

¶ 4. A.C. Howell, who lived “on an angle, maybe 600 feet” from Schuck’s trailer, testified that he heard gunshots to the left of his residence late that afternoon. When he went outside to investigate, he saw the defendant’s brother Charles Schuck (Charles) exiting the trailer of the Sehucks’ father, Mr. Fred, which is “right across” from Howell’s house. Charles “hollered at Freddie ... and asked him, said what are you doing you S.B.?” to which Schuck replied, “I just shot him, there he lays, call the law.” Schuck then went “back towards his trailer with what looked like a ... short barreled gun on his shoulder.” Howell saw Beasley, who did not appear to be or have been armed, lying motionless about a hundred and fifty feet from Freddie’s trailer.

¶ 5. Howell’s daughter, Rhonda Watts, testified that she was visiting her parents the afternoon of the shooting when they heard two gunshots, and “saw Freddie walk across the field with a gun in his hands.” Watts also heard Charles ask Schuck something to the effect of “what have you done” and Schuck replied, “I just shot Chucky, I shot the S.O.B., there he lays, if you want to go call the law, go ahead.”

¶ 6. James Robertson, who lived approximately a hundred yards from Schuck’s trailer, testified that he was outside feeding his dogs the afternoon of December 7 when he “heard Freddie and [Beasley] arguing.” He then heard Beasley say, “Don’t shoot me,” and saw that Beasley, who was unarmed, had “turned and run.” Robertson further testified that Schuck shot Beasley and “walked up there and kicked him” after he fell, then told his brother that he had “shot this M.F., call the law to come and get him.” After Schuck “kicked him in the side ... and raised his shirt up to look at him,” he “turned and walked back inside.”

¶ 7. Investigator AI Hillman of the George County Sheriffs Department was dispatched to the scene at about 5:00 that afternoon. He testified that, based on his observations and conversation with other officers, he concluded that they “had a man down on the ground, and that the suspect was believed to be in the trailer residence.” The sheriff called Schuck “in a loud boisterous voice ... directly by name and identified himself as the Sheriff and asked him to come out unarmed and surrender himself ...” After repeated requests, the officers received no response. The sheriff finally warned Schuck that if he did not come out that he would break a window and mace it. Ultimately, Officer Henderson broke a window, sprayed the mace, and the officers “could hear coughing coming from inside the trailer.” A few minutes later “the inner front door, the main door, opened” and Hillman “could see that he had some kind of drink in his hand.” When Schuck “took about a half step out the door,” he “reached his hand out,” .and an officer “reached and caught him by the hand and was telling him to come on.” Schuck “was still standing there”; the officer “began to pull him out”; and Schuck “went face first down the steps and landed on the ground.”

¶ 8. Afterward, upon walking through Schuck’s trailer, Hillman “saw a pump shotgun behind an easy chair next to the front door. It had a spent hull partially ejected out the ejection port. It was muzzle up, leaning against the wall.” He observed ammunition in the kitchen and in the back bedroom. Many empty beer cans were “stacked very neatly in various places throughout the house,” and there was “an empty whiskey bottle in the garbage can.”

¶ 9. Investigator Gregory Box of the Mississippi Highway Patrol testified that when he arrived at the scene Schuck was handcuffed and was on the ground on the left side of the porch coming out the front door. Box performed a “gun residue kit” test on Schuck, which “came back negative because all it had on it was sand.” Box’s inspection of the inside of the trailer revealed no evidence of a struggle.

¶ 10. The officers did not attempt to question Schuck at the scene because “it was apparent he was intoxicated, very much so.” The next morning, after waiving his rights, the defendant admitted that he had shot Beasley. Asked to describe his demeanor, Box testified as follows:

[ H]e wasn’t as upset as I would have been if I. had killed somebody. He was talking with us, made plenty of sense. He understood what was going on. He showed some remorse, and then he wouldn’t show any remorse. He described it as being a terrible situation at one time I believe was the words he used .■.. Then at another time he said prior to the taping when we started questioning him he said that he didn’t mean to kill him but he was glad that he killed him. Just his demeanor wasn’t anything like mine would have been had I killed somebody and felt bad about it, or how a normal person that had killed somebody would react.

¶ 11. Dr. Stephen Timothy Hayne, accepted by the court as an expert in the field of forensic pathology, had performed the autopsy on the victim’s body. Dr. Hayne testified that the victim had sustained four “injuries consistent with buckshot wounds, all of which were located over the back surface of the body.” He found no entry wounds on the front of the body. The “spread of the shot” indicated “that there was a considerable distance from the end of the muzzle, the weapon, and the body when the shotgun was fired.” Dr. Hayne concluded that “Mr. Beasley died from a shotgun wound in the back.”

¶ 12. The defense presented expert opinion testimony by Dr. Daniel Koch, a clinical psychologist from Mobile, who testified that he had worked on and performed opinions in over a hundred murder cases probably “forty to fifty percent of the time” for the State. He testified at length and in great detail about the tests that he had performed in his evaluation of Schuck, as well as the other information which he considered, and explained that he spent “about eight hours” with Schuck and another “six hours with records and record review.” The entire evaluation was done after Schuck had been incarcerated for “some seven months.” The I.Q. test which was administered by Dr. Koch, for the most part was not described as is ordinarily heard in criminal cases, but rather were described as a percentile of the population. Dr. Koch did finally say that “when we look at them overall, the left hemisphere information, the verbal information was 84, which is the lower fourteenth percentile of the population. The right hemisphere of the brain functions were nineteenth percentile. And that left him functioning at the sixteenth percentile in the population, or stated another way, eighty-four percent of people walking around would have a higher I.Q. than did this patient.” When asked by Sehuck’s counsel what was his opinion as to the probable cause of “that deficit”, he responded that Schuck’s “alcohol use was extensive after 1980” and “certainly, a significant degree of his impairment would be due to his long term excessive alcohol abuse.” He opined that Schuck was competent to stand trial, but he did not understand the nature of his acts at the time [of the shooting] and could not distinguish between right and wrong at the time. He also testified about Schuck’s “high readings on schizophrenia and paranoia based on the MMPI test,” and stated that had he been evaluating Schuck at the time of the shooting, he “would have put him in a psychiatric hospital.” On cross-examination, Dr. Koch agreed that “self-induced alcoholism is Schuck’s problem, if any,” and it was “probably the primary factor; damage to the brain from excessive alcohol use over time.” Also on cross-examination there was questioning about Schuck’s disciplinary actions in his military record and his records with the V.A. hospital. Koch was also questioned about an “automobile accident” in 1980, after which Schuck was in á coma for two weeks. Dr. Koch testified that Schuck’s face was “smashed,” and facial bones broken; then he said “it’s quite likely that ... some damage ... will show up in the evaluation.” To which the prosecutor responded by asking, “[a]re you aware, sir, that he was ‘drunk in the back of a moving truck and fell out?’ ” No objection was interposed by defense counsel. Charles Schuck testified that his brother was, essentially, crazy with rage at the time in question.

¶ 13. In rebuttal, the State introduced expert opinion testimony of Henry Maggio, M.D., whose experience in providing evaluations and testimony in criminal cases is extensive. Dr. Maggio testified to the details of his evaluations done approximately 11 months after the shooting, which led him to conclude: that Schuck was “manipulating the truth”; that his explanation then, of the events right after the shooting almost a year earlier (checking the victim for pulse, checking the gunshot wound, telling people to get the sheriff, etc.) was basically substantiated and corroborated by the other witnesses; and that Schuck “most certainly” knew the difference between on wrong on December 7, 1996. He found that those acts were “all purposeful acts. And what he [said was] purposeful. It’s logical, it makes sense, it follows in a logical fashion.” He also testified that “on the day of this killing” Schuck “had a positive urine for cocaine and a blood alcohol of 435 milligrams percent .... a lot of alcohol in his blood stream.” But he went on to point out that Schuck continued drinking “right before he was arrested” and that he “found nothing that would dissuade me from my finding.”

¶ 14. The jury found Schuck guilty, and he was given a life sentence in the custody of the Mississippi Department of Corrections. Aggrieved, Schuck filed this appeal through appointed counsel, who filed a brief raising four issues, and subsequently Schuck himself filed a pro-se supplemental brief raising three additional issues:

ISSUES RAISED BY SCHUCK’S ATTORNEY
I.WHETHER THE TRIAL COURT ERRED IN GRANTING INSTRUCTION S 1, WHICH PERMITTED CONVICTION OF SCHUCK WITHOUT REQUIRING A UNANIMOUS FINDING BY THE JURY ON THE ELEMENTS OF THE INDICTED CHARGE, AND WHICH PERMITTED THE PROSECUTOR TO USURP THE POWER OF THE GRAND JURY AND TO SEEK A CONVICTION ON A DEPRAVED HEART THEORY OF MURDER FOR WHICH MR. SCHUCK WAS NOT INDICTED. FURTHERMORE, THIS JURY INSTRUCTION PERMITTED A CONSTRUCTIVE AND SUBSTANTIVE AMENDMENT TO THE INDICTMENT BY THE PROSECUTOR.
II. WHETHER THE TRIAL COURT ERRED IN DENYING SCHUCK’S MOTION SEEKING TO SUPPRESS SCHUCK’S STATEMENT REGARDING HIS INVOLVEMENT IN THE SHOOTING.
III. WHETHER THE TRIAL COURT ERRED IN DENYING SCHUCK’S MOTION FOR A MISTRIAL MADE WHEN THE STATE IMPROPERLY ELICITED FROM WITNESSES COOPER AND MAGGIO THE BLATANTLY INCORRECT TESTIMONY THAT SCHUCK HAD BEEN DISHONORABLY DISCHARGED FROM THE U.S. NAVY AND THAT HE HAD A BAD CONDUCT RECORD WHILE IN THE SERVICE.
IV. WHETHER THE VERDICT OF MURDER WAS AGAINST THE OVERWHELMING WEIGHT AND SUFFICIENCY OF THE EVIDENCE AND THE TRIAL COURT ERRED IN DENYING SCHUCK’S MOTION FOR A DIRECTED VERDICT AND HIS MOTION FOR A NEW TRIAL.
ISSUES RAISED BY SCHUCK PRO SE
V. WHETHER SCHUCK WAS DENIED HIS RIGHT TO TESTIFY AS GRANTED BY ARTICLE 3, SECTION 26 OF THE MISSISSIPPI CONSTITUTION OF 1890.
VI. WHETHER THE ASSISTANT DISTRICT ATTORNEY COMMITTED PROCEDURAL MISCONDUCT IN CLOSING ARGUMENT BY BOLSTERING THE CREDENTIALS AND TESTIMONY OF STATE’S WITNESS OVER THE DEFENSE’S WITNESS.
VII. WHETHER DEFENDANT/ APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL

¶ 15. We conclude that these issues are without merit, and we affirm the trial court.

DISCUSSION

¶ 16. ISSUE I. Schuck first challenges the granting of Instruction S 1 under the plain error doctrine, even though he recognizes that it was not properly preserved in the record. S 1 reads as follows:

The Court instructs the Jury that murder is the killing of a human being with malice aforethought, not in necessary self-defense, and without the authority of law, by any means or in any manner, when done with the premeditated and deliberate design to effect the death of the person killed. The Court further instructs you that if you believe from the evidence in this case, beyond a reasonable doubt, that Frederick E. Schuck, on or about December 7, 1996, killed Byron E. Beasley, a human being, without authority of law, either:
(a) with the premeditated and deliberate design to effect the death of Byron E. Beasley with malice aforethought; or
(b) done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life; although without any premeditated design to effect the death of Byron E. Beasley, and not in necessary self-defense;
then Frederick E. Schuck is guilty of murder, and it is your sworn duty to so find.

¶ 17. Schuck claims the instruction’s phrasing makes it impossible to determine whether the jury found him guilty of depraved heart murder, or deliberate design murder, two mutually exclusive and incompatible theories of murder. Schuck concedes that when this instruction was offered, he failed to make the proper objection necessary to preserve the issue for review, objecting on the ground that the charge did not require the jury to find beyond a reasonable doubt that the defendant “knew right from wrong at the time of the commission of the offense.” The objection was overruled by the court, and the instruction was granted.

¶ 18. On appeal, Schuck raises for the first time that the instruction “was a flawed mingling of two distinct and compatible theories of murder” which “erase[d] the requirement for a unanimous jury” and permitted a “constructive and substantive amendment of the indictment ...” The State asserts that “[a]n objection on one or more specific grounds at trial constitutes a waiver of all other grounds for objection on appeal.” Gray v. State, 728 So.2d 36, 60 (Miss.1998). This Court has also held that “a party may not argue that an instruction was erroneous for a reason other than the reason assigned on objection to the - instruction at trial.” Walker v. State, 740 So.2d 873, 887 (Miss.1999).

¶ 19. Although this issue lacks substantive merit and is procedurally barred, a review on the merits shows that this Court has rejected a similar argument:

Sanders charges error in the granting of instructions S 1 and S 2. Specifically, Sanders argues that he was charged with depraved heart murder pursuant to Miss.Code Ann. § 97 — 3—19(l)(b) and that the proof at trial should have been limited solely to evidence relating to that single classification of murder. Sanders argues that a deliberate design murder instruction should not have also been given. Instructions S-l and S-2 told the jury it could find Sanders guilty of murder if he killed Watts “with the deliberate design to effect the death of Marvin Watts ...” or if he killed Watts while “engaged in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, by then and there striking the said Marvin Watts in the head with a hammer.... ”
These two versions of murder track Miss.Code Ann. § 97-3-19, which provides in pertinent part:
(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:
(a) When done with deliberate design to effect the death of the person killed, or of any human being;
(b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual.
We addressed this issue in Mallett v. State, 606 So.2d 1092, 1094 (Miss.1992), which provides:
There is no question that the structure of the statute suggests two different kinds of murder: deliberate design/premeditated murder and depraved heart murder. The structure of the statute suggests these are mutually exclusive categories of murder. Experience belies the point. As a matter of common sense, every murder done with deliberate design to effect the death of another human being is by definition done in the commission of an act imminently dangerous to others and evincing a depraved heart, regardless of human life. Our cases have for all practical purposes coalesced the two to the Section 97 — 3—19(l)(b) subsumes (l)(a).
We held that it was not error to grant both instructions. This view was reasserted in Hurns v. State, 616 So.2d 313, 321 (Miss.1993) and Catchings v. State, 684 So.2d 591 (Miss.1996). Our holdings in these cases are dispositive of this issue. This assignment of error is without merit.

Sanders v. State, 781 So.2d 114, 118-19 (Miss.2001). See also Catchings v. State, 684 So.2d 591, 599 (Miss.1996) (the theory of depraved heart does not amend the indictment and that subsections (a) and (b) of section 97-3-19(1) are “coalesced”).

¶ 20. In the present case, Schuck argues that the only theory of murder presented by the grand jury was one of deliberate design murder. Schuck interjects that at no point during the pre-trial, trial or post trial proceedings did the State move to amend the indictment from the grand jury to reflect the theory of depraved heart murder. Schuck’s argument is that distinct and incompatible theories of murder were given in the instruction. The trial court found that the instruction incorporating both deliberate design and depraved heart murder was proper. Based on the holdings of this Court in Sanders and Mallett, we agree with the trial court and find this issue without merit.

¶ 21. ISSUE II. Schuck next argues that the trial court erred in admitting his statement which was given the morning after the shooting. Trial counsel filed a motion to suppress the inculpatory statement made by Schuck to Al Hillman of the George County Sheriffs Department and Greg Box of the Mississippi Highway Patrol on the morning of December 8, 1996. There were two separate transcripts of the statement: one made by the Highway Patrol at the direction of Box and the other made by the George County Sheriffs Department at the direction of Hillman. Both were entered into evidence at the hearing.

¶ 22. Schuck maintains that the alcohol, cocaine, and prescription drugs in his system rendered his waiver of the Miranda rights ineffective. He acknowledges that these rights may be waived, but that any waiver must be made knowingly and intelligently. Therefore he argues that any statement made during the questioning would be inadmissible. Additionally, he argues that when an interrogation is conducted without the presence of an attorney, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and right to counsel.

■ ¶ 23. During the hearing on the motion to suppress Schuck’s statement, the State first called Greg Box of the Criminal Investigations Bureau of the Mississippi Highway Patrol, who performed the “gunshot residue kit” test on Schuck at the scene. Box testified that when he went to Schuck’s residence located on Smith Bang Road, he found Schuck, who was “extremely intoxicated,” lying “on the ground by the side of the front porch coming out of the trailer.” Box did not question the defendant at that time “because of the condition he was in.” Schuck was then transported to the George County Hospital. At about midnight, Box went to the hospital and inquired about Schuck’s condition, and was told the blood alcohol level was down from .43 percent to .14. Again, “[bjecause of his level of intoxication,” Box declined to question him. Schuck was released from the hospital between 8:00 and 8:30 the next morning. Box and Investigator Al Hillman interviewed him at the George County Jail. Schuck appeared coherent and sober and was given his Miranda warnings by Hillman. Schuck waived his rights and agreed to talk to the officers. Additionally, Box testified that Schuck was not threatened, coerced or offered any reward in exchange for his statement. Box’s testimony was corroborated by Hillman. The defense put on no proof at the hearing, and the trial court ultimately ruled that the statement was admissible.

¶ 24. “The prosecution shoulders the burden of proving beyond a reasonable doubt that the confession was voluntary.” Horne v. State, 825 So.2d 627, 639 (Miss.2002) citing Morgan v. State, 681 So.2d 82,86 (Miss.1996). This “burden is met and a prima facie case made out by testimony of an officer, or other persons having knowledge of the facts, that the confession was voluntarily made without threats, coercion, or offer of reward.” Morgan, 681 So.2d at 87. The circuit court sits as a fact finder when determining voluntariness of a confession, and its determination will not be reversed unless manifestly wrong. Id.

¶ 25. This Court has held that a defendant’s mental condition does not automatically render a confession inadmissible, but is one factor to consider among the totality of the circumstances of a confession. Holloway v. State, 809 So.2d 598, 604 (Miss.2000). Further, we have stated that intoxication does not automatically render a confession involuntarily but instead the confession’s admissibility depends on the degree of intoxication. Id.

¶ 26. The testimony of the officers established a prima facie case that the statement by Schuck was made freely and voluntarily after a valid waiver of his Miranda rights. Once such a prima facie case is proven by the State, the burden then shifts to the Schuck to offer evidence to rebut the State’s prima facie case. Id. Schuck failed to dispute said testimony made or to offer any evidence at the hearing. The trial judge applied the correct legal standard, properly considered the totality of the circumstances, and held that Schuck’s statement was free and voluntary, and thus admissible. This issue is without merit.

¶ 27. ISSUE III. Schuck next asserts that the trial judge should have granted a mistrial based on the examination of State witnesses David Cooper and Dr. Maggio, regarding Schuck’s military record. Cooper was a longtime friend of both Schuck and the deceased, Chucky Beasley. On cross-examination, defense counsel asked David Cooper about Schuck’s military service, including his tour of duty in Vietnam, his medical treatment at the Veterans Administration Center in Biloxi, and his diagnosis of post traumatic stress disorder. Thereafter, the following questioning took place:

RE-DIRECT BY MR. SAUCIER [Assistant D.A.]:
Q. Mr. Cooper, do you know about the military service of Freddie Schuck?
A. I know what he has told me.
Q. Okay. In other words, when he said he went to Vietnam, that’s just what he has told you?
A. Right.
Q. Did he tell you what type of discharge he got?
A. Undesirable I think.
Q. And was that because when he went to Vietnam he only stayed a very short length of time? Did he tell you about that?
A. Oh, I don’t know. We didn’t discuss that.
Q. Did he discuss that he had been reprimanded by his officers for failing to heed their orders?
A. Yeah.
BY MR. HUNTER: We are going to object to that and ask to be heard, Your Honor.
BY THE COURT: Overruled.
BY MR. HUNTER: Can we be heard on the record?
BY THE COURT: Yes, sir.
BY MR. SAUCIER [continuing]:
Q. And the conversations that he had with you about his military service, you were aware were you not that not only did he get that discharge but he didn’t like the military service?
A. No, he didn’t like military service I don’t think.
Q. And he didn’t like authority?
A. I didn’t like the military service.

¶ 28. Outside the presence of the jury, the defense moved the court “to instruct the jury to disregard the questions of counsel regarding any past bad acts of the Defendant which were elicited for purposes of prejudicing the case against the Defendant.” Additionally, the defense moved for a mistrial on this ground. The prosecutor responded as follows:

Number one, I have never elicited intoxication by this Defendant. Counsel opposite elicited it about his own client. I never elicited anything about an altercation between the Defendant and Chucky Beasley; counsel opposite elicited that information. I never elicited information about other drinking or physical encounters; counsel opposite did. I objected when, in fact, those items were attempted by counsel opposite. Counsel opposite mentioned his military service with this individual. He mentioned his pill taking, his psychological care, the fact that he had been a Vietnam veteran. And all of that now, subject to the Court’s approval, fully opens the door both ways; not just for the victim, but both ways, because counsel opposite is correct. I think in theory none of that should have been allowed until the Defendant took the stand. But, also, none of it should have been allowed against Chucky Beasley until he took the stand and established self-defense. But since he persisted on with these avenues, then this is certainly and opportunity and an area where we should be able to go into.

The court agreed and overruled that motion for mistrial.

¶ 29. Schuck also assigned as error, in his statement of this issue and his summary of his arguments, the testimony of the State’s witness Dr. Henry Maggio regarding Schuck’s military discharge. Arguing that Maggio “embellished his dishonorable discharge testimony with the assertion that Mr. Schuck had also been court-martialed” and that “[t]his information was incorrect but persistently pursued by the prosecutor.” Schuck nevertheless failed to develop this second part of the issue. The record reveals that Dr. Maggio testified that “he (Schuck) was court-martialed, and he was discharged with a dishonorable discharge. Amd he said, no, it was an honorable discharge. ...” Defense counsel objected, the trial court overruled and said he could “bring it out on Cross”. Defense counsel successfully showed that Dr. Maggio was in error, by having him read from Schuck’s discharge records that showed “under honorable conditions”. Defense counsel did not renew his objection nor did he ask for a mistrial at that point. Rather, he continued with other cross examination.

¶ 30. This Court reviews a trial court’s decision to deny a motion for a mistrial for abuse of discretion — that is, this Court defers to the trial court’s decision and will not reverse the decision unless it was unreasonable and unduly prejudicial. Webster v. State, 817 So.2d 515, 521 (Miss.2002).

¶ 31. The trial judge was correct in his ruling to deny the motion for mistrial. Evidence, otherwise inadmissible, can be properly presented where the defense has “opened the door” on cross examination. Hall v. State, 691 So.2d 415, 418 (Miss.1997). The trial court has “broad discretion” to allow such questioning on re-direct examination. Cavett v. State, 717 So.2d 722, 726 (Miss.1998). The defense questioned Cooper at length concerning Schuck’s military service.

¶ 32. “When ‘the defense attorney inquires into a subject on cross-examination of the State’s witness, the prosecutor on rebuttal is unquestionably entitled to elaborate on the matter’.... Because these matters were all ‘brought out on cross-examination,’ we find the trial court did not abuse its discretion in denying the motion for mistrial and allowing redirect examination on the matters.” Webster, 817 So.2d at 521; De La Beckwith v. State, 707 So.2d 547, 591 (Miss.1997) (citations omitted).

¶ 33. Schuck has not shown an abuse of discretion by the trial court in allowing this testimony. All matters questioned on re-direct examination were matters brought out on defense’s cross-examination of the witness. Therefore, this is without merit.

¶ 34. ISSUE IV. Schuck asserts that the evidence in this case supports a conviction of heat of passion manslaughter, rather than murder, and therefore the trial court erred in denying his motion for a directed verdict and his motion for a new trial. He denounces the verdict by challenging both the weight and sufficiency of the evidence against him. The standard of review set by this Court for sufficiency of the evidence is:

Our concern here is whether the evidence in the record is sufficient to sustain a finding adverse to [the defendant] on each element of the offense of murder. In the present context we must, with respect to each element of the offense, consider all of the evidence-not just the evidence which supports the case for the prosecution-in the light most favorable to the verdict. The credible evidence which is consistent with the guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fairminded jurors could only find the accused not guilty.

Drake v. State, 800 So.2d 508, 516 (Miss.2001) (citing Collier v. State, 711 So.2d 458, 461 (Miss.1998) (quoting Wetz v. State, 503 So.2d 803, 808 (Miss.1987) (citations omitted))).

¶ 35. Likewise, in determining whether a jury verdict is against the overwhelming weight of the evidence, this Court uses the following standard:

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

Drake, 800 So.2d at 517 (quoting Pleasant v. State, 701 So.2d 799, 802 (Miss.1997) (citations omitted)). A less stringent rule would denigrate the constitutional power and responsibility of the jury in our criminal justice system. Hughes v. State, 724 So.2d 893, 896 (Miss.1998).

¶ 36. Schuck contends that the facts show-that his and Beasley’s friendship disintegrated into a violent confrontation on the day of the shooting. Schuck refers to the State’s witness David Cooper who testified that about two months before the killing “Chucky hit Freddie and knocked him down”, and that Freddie (Schuck) was hollering “leave me alone.” Cooper also testified that Beasley hit Schuck with an object of some type and knocked Schuck to the floor. He further testified that Schuck had bad hips and needed both of them replaced and had difficulty getting up from a sitting position.

¶ 37. Schuck argues that the “evidence in this case supports a conviction of heat of passion manslaughter, rather than murder ...” Ordinarily, whether a homicide is murder or manslaughter is a question of fact for the jury. Jackson v. State, 740 So.2d 832, 834 (Miss.1999). The State contends that the evidence must be taken in the light most favorable to the verdict. Jackson v. State, 580 So.2d 1217, 1219 (Miss.1991) (on appellate review the State “is entitled to the benefit of all favorable inferences that may reasonably be drawn from the evidence”), and Noe v. State, 616 So.2d 298, 302 (Miss.1993) (evidence favorable to the defendant should be disregarded). The jury is the judge of the credibility of a witness. Harris v. State, 527 So.2d 647, 649 (Miss.1988). This Court “will not set aside a guilty verdict, absent other error, unless it is clearly a result of prejudice, bias or fraud, or is manifestly against the weight of credible evidence.” Drake, 800 So.2d at 517(citing Maiben v. State, 405 So.2d 87, 88 (Miss.1981)).

¶ 38. As recounted above, there was ample credible testimony for the jury to find Schuck guilty of murder. This assignment of error is without merit.

¶ 39. ISSUE V PRO SE. The first issue raised by Schuck in his supplemental pro se brief is that his counsel denied his constitutional right to testify because they never called him to the witness stand. We note at the outset that this alleged error is not properly before the Court, as the first time this allegation was made is in Schuck’s supplemental brief. Thus it is without merit. We have on many occasions held that “[w]e must decide each case by the facts shown in the record, not assertions in the brief.” Oakwood Homes Corp. v. Randall, 824 So.2d 1292, 1293 (Miss.2002) (internal citations omitted.) Consideration of matters on appeal is limited strictly to matters contained in the trial record. Phillips v. State, 421 So.2d 476, 478 (Miss.1982). To the appellant falls the duty of insuring that the record contains sufficient evidence to support his assignments of error on appeal. Burney v. State, 515 So.2d 1154, 1160 (Miss.1987) (quoting Robinson v. State, 345 So.2d 1044, 1045 (Miss.1977)). Because Schuck’s claims are unsupported by the record, they are without merit. Id.

¶ 40. Schuck also contends that his conviction can not stand because the jury was not instructed that it could not infer guilt from his failure to testify. Here, the jury was properly instructed in Instruction D-l as follows:

The charge is not evidence. The Defendant is presumed to be innocent and does not have to testify or present any evidence to prove innocence. The State has the burden of proving every element of the charge beyond a reasonable doubt. If it fails to do so, you must return a not guilty verdict.

Because a copy of all the instructions requested at trial is in the record, it is clear that defense counsel never asked for a separate instruction, or an addition to D-l, which would say that the jury shall draw no inference of guilt from Schuck’s failure to testify. Thus this issue was not raised. While Schuck had the right to have this type of instruction given, there is no obligation for the trial court to require it. Failure to ask for, or the decision not to ask for, such an instruction cannot be said to be error, because it is subject to debate whether such an instruction helps or harms the defendant who does not testify. In De La Beckwith v. State, 707 So.2d at 584, the defense requested and was granted an instruction which provided that “[t]he Court instructs the jury that the defendant has an absolute right under the law not to testify in this case, and the jury shall draw no inference whatever from Mr. Beckwith’s not having done so.” There we said “[w]e have reasoned that such an instruction ‘probably brought to the attention of the jurors, and impressed them, the fact that [the defendant] did not testify, more than the argument of the district attorney.’ ” (citing Jackson v. State, 440 So.2d 307, 310 (Miss.1983)). Thus, the decision to use such instruction, or not, can be a tactical one, and thus it certainly cannot be said that it was error for Schuck’s counsel to fail to use it. Schuck’s argument on this issue is without merit.

¶ 41. ISSUE VI-PRO SE. Schuck contends that the State committed prosecutorial misconduct when it made the following statement:

Let’s go through what you heard about the defense. Insanity. On the testing y’all heard these experts. We can talk about the experts. I’m not going to get into all that. Y’all make up your minds. There only one thing I want to point out on these experts. Actually, two things I want to point out on these experts. Number one, you got a forensic psychiatrist, okay, against a psychologist. A psychiatrist has been to med school. He has been through an internship. He has been through three years of study on disorders of the mind. He has to pass a board certification. . And he gives his opinion. A psychologist doesn’t go through near that. Okay.

¶ 42. Having failed to contemporaneously object to what he contends is improper closing argument, Schuck is procedurally barred from raising this issue on appeal. Manning v. State, 735 So.2d 323, 344 (Miss.1999). Procedural bar aside, the comments made by the State were based on the evidence, and the state’s argument that the testimony of Dr. Maggio, the State’s expert, should carry more weight than that of Dr. Koch, is well within the “wide latitude” granted during closing arguments concerning the weight of expert testimony. Caston v. State, 823 So.2d 473, 496 (Miss.2002).

¶ 43. This issue is without merit.

¶ 44. ISSUE VII-PRO SE. Schuck makes a general claim that he was denied effective assistance of counsel at trial while being represented at the trial level by John Hunter and Sidney Barnett. There is a well established standard for determining if a defendant received effective assistance of counsel. “The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 45. This Court has adopted the Strickland test holding:

[ This] test requires a showing that counsel’s performance was sufficiently deficient to constitute prejudice to the defense. The defendant has the burden of proof on both prongs. A strong but rebuttable presumption, that counsel’s performance falls within the wide range of reasonable professional assistance, exists. The defendant must show that but for his attorney’s errors, there is a reasonable probability that he would have received a different result in the trial court.

Rankin v. State, 636 So.2d 652, 656 (Miss.1994) (citations omitted).

¶ 46. This Court must determine whether counsel’s performance was both deficient and prejudicial as viewed from the totality of the circumstances. Carney v. State, 525 So.2d 776, 780 (Miss.1988). The defendant is entitled to an evidentiary hearing if he can raise facts regarding either deficiency of counsel’s conduct or prejudice to the defense. Alexander v. State, 605 So.2d 1170, 1173 (Miss.1992). Only when this Court determines that defendant’s counsel was constitutionally ineffective, will the remedy be to reverse and remand for a new trial. Nicolaou v. State, 612 So.2d 1080, 1086 (Miss.1992).

¶ 47. Schuck does not demonstrate that his lawyer’s conduct was so deficient and prejudicial as to warrant a new trial. This argument is without merit.

CONCLUSION

¶ 48. We conclude that there was no individual reversible error, nor was there cumulative error warranting reversal. Viewing this case as whole, Schuck was not denied a fair trial. Each of the assignments of error is without merit. The judgment of the Circuit Court of George County is affirmed.

¶ 49. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, EASLEY, CARLSON and GRAVES, JJ., CONCUR. McRAE, P.J. and DIAZ, J., not participating.

      . No objection was made by Schuck to the testimony of Davis or Howell or Watts or Robertson (see infra) as they testified to these events of the day of the murder.