author: CARLSON, Justice, for the Court. McRAE, Presiding Justice,

text:
    Willie BOWIE, individually and on behalf of the Heirs at Law of Lois Brown, Deceased v. MONTFORT JONES MEMORIAL HOSPITAL; Kosciusko Medical Clinic; Perry Lishman, M.D.; Gary Holdiness, M.D.; Richard Carter, M.D.; and Timothy Alford, M.D.
    No. 2001-CT-01045-SCT.
    Supreme Court of Mississippi.
    Dec. 31, 2003.

      Isaac K. Byrd, Jackson, Katrina M. Bibb Gibbs, Clinton, Ramel Lemar Cotton, attorneys for appellant.
    Stephen P. Kruger, Ridgeland, John Collinsworth McCants, Heber S. Simmons, III, Tina Lorraine Nicholson, Jackson, Lynda Clower Carter, George Quinn Evans, Jackson, attorneys for appellees.
   ON WRIT OF CERTIORARI

CARLSON, Justice, for the Court.

¶ 1. As a result of the death of Lois Brown (Brown), her heirs filed a medical malpractice action against a hospital, a clinic, and several physicians. In due course, the trial court granted summary judgment in favor of the defendants, thus prompting the Brown heirs to appeal to this Court, which assigned this case to the Court of Appeals. The Court of Appeals, on a 6^4 vote, reversed the trial court’s grant of summary judgment and remanded the case to the trial court for a plenary trial on the merits. Bowie v. Montfort Jones Mem’l Hosp., 850 So.2d 1210 (Miss.Ct.App.2002). We granted the defendants’ petition for writ of certiorari, and upon consideration of the record before us and the applicable law, we reverse the Court of Appeals’ judgment and affirm the trial court’s judgment.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Lois Brown, age sixty-seven years, was taken by ambulance from her home to Montfort Jones Memorial Hospital in Kosciusko, Mississippi, on June 13, 1998, following a seizure. She had a four-inch laceration to the head. Brown had a history of alcohol-induced seizures and her blood alcohol content that day was .19%. There was evidence that Brown had been consuming both beer and whisky at her home which had no air-conditioning on a day when the heat index had reached 110 degrees Fahrenheit. Brown’s condition improved over the next two days but then began to deteriorate. Brown died on June 17, 1998, from a cerebral hemorrhage brought on by heart and lung failure.

¶ 3. On November 24, 1999, Willie Bowie (Bowie), individually and as representative of Brown’s heirs, filed suit against Mont-fort Jones Memorial Hospital (Montfort Jones), Kosciusko Medical Clinic (Clinic) and several physicians alleging that Mont-fort Jones, the Clinic and doctors were negligent in failing to provide Brown with a minimal level of care, thereby causing her death.

¶ 4. The trial judge entered an agreed scheduling order on August 16, 2000, which provided, inter alia, that all discovery, was to be completed by March 1, 2001; that the plaintiffs were to designate experts not later than December 31, 2000; and, that the defendants were to designate experts by January 31, 2001. The order further provided that the deadlines could “not be extended by agreement of the parties, but only by permission of the Court upon showing of good cause.” Although the plaintiffs failed to designate experts by the December 31, 2000, deadline, Montfort Jones designated its expert witness on January 26, 2001, and the Clinic and the physicians designated their experts on January 31, 2001. Also, on January 26, 2001, Montfort Jones filed a motion for summary judgment and soon thereafter, the physicians and the Clinic likewise filed motions for summary judgment. These various motions for summary judgment alleged basically that without a medical expert, a prima facie case of medical malpractice could not be made. On February 5, 2001, the plaintiffs designated Dr. Obie NcNair as an expert witness. The Miss. R. Civ. P. 26(b)(4) designation included a statement that Dr. McNair would testify the defendants did not properly monitor Brown, did not administer blood gas tests, did not provide daily electrolytes, and gave Brown too much potassium. On February 28, 2001, the plaintiffs filed Dr. McNair’s sworn affidavit which stated his opinion “to a reasonable degree of medical probably [sic], that the death of Mrs. Brown could have been avoided if proper monitoring of her heart and blood chemistries had been monitored and attended to more closely.”

¶ 5. The motions for summary judgment along with motions to strike the plaintiffs’ late designation were heard on March 5, 2001, at which time plaintiffs’ counsel submitted a motion for extension of time to designate an expert, seeking a retroactive order permitting the late designation. The trial judge found that the motion for extension of time was untimely as it was filed “over two months after the deadline for designation of expert witnesses had passed and over a month after one or more of the Defendants’ Motion[s] for Summary Judgment were filed.” The trial judge further noted that the motion claimed the original deadline was not met due to counsel’s attendance at other trials or legal proceedings but that counsel offered no evidence such as calendars to support the claim.

¶ 6. The trial court then found that because the plaintiffs had not designated an expert in compliance with the agreed scheduling order, no prima facie case of medical malpractice could be made against any of the defendants. The trial court also found that even if the late-designated expert’s affidavit was accepted despite its tardiness, it was inadequate to defeat a motion for summary judgment.

PROCEEDINGS BEFORE THE COURT OF APPEALS

¶ 7. The Court of Appeals reversed the trial court’s grant of summary judgment based primarily on our decision rendered in Thompson v. Patino, 784 So.2d 220 (Miss.2001). As acknowledged by the Court of Appeals, the trial court in today’s case did not have the benefit of our decision in Thompson, which was handed down sixty-six days after the trial court’s .grant of summary judgment in today’s case. In a 6^1 decision, the Court of Appeals reversed the trial court’s grant of summary judgment. Presiding Judge Southwick, joined by three judges, dissented and focused on the inadequacy of the affidavit of the plaintiffs’ medical expert, without addressing the issue of the trial court’s action in striking the affidavit of the expert on the basis of an untimely filing. The Court of Appeals found that the facts in Thompson were “remarkably similar” to the facts in today’s case. However, as will be discussed later in this opinion, our decision in Thompson, which was no doubt “fact-driven,” is easily distinguishable from the case sub judice.

DISCUSSION

¶ 8. This Court applies a de novo standard of review of a lower court’s grant or denial of summary judgment. Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002 (Miss.2001). The proponent of a summary judgment motion bears the burden of showing that there are no genuine issues of material fact such that he is entitled to judgment as a matter of law. Collier v. Trustmark Nat’l Bank, 678 So.2d 693, 696 (Miss.1996). The motion may not be defeated merely by responding with general allegations, but must set forth specific facts showing that issues exist which necessitate a trial. Drummond v. Buckley, 627 So.2d 264, 267 (Miss.1993). After viewing the evidence in a light most favorable to the nonmoving party, this Court will only reverse the decision of the trial court if triable issues of fact exist. Travis v. Stewart, 680 So.2d 214, 216 (Miss.1996).

¶ 9. While this appeal is before us today to consider the issues of the timeliness of the plaintiffs’ designation of a medical expert and the trial court’s alternative finding that notwithstanding the timeliness issue, the affidavit of the plaintiffs’ designated expert was inadequate to defeat summary judgment, we find the issue of timeliness to be dispositive of this appeal, and thus do not reach the issue of the sufficiency of the affidavit of the plaintiffs’ expert.

I. DID THE TRIAL COURT COMMIT ERROR BY FAILING TO CONSIDER THE AFFIDAVIT OF THE PLAINTIFFS’ EXPERT DUE TO UNTIMELINESS EN ROUTE TO A GRANT OF SUMMARY JUDGMENT IN FAVOR OF THE MEDICAL DEFENDANTS.

¶ 10. Discovery responses are to be supplemented seasonably pursuant to Rule 26(f) of the Mississippi Rules of Civil Procedure. It has been held that “[s]ea-sonably does not mean several months later. It means immediately.” West v. Sanders Clinic for Women, P.A., 661 So.2d 714, 721 (Miss.1995). Additionally, “sea-sonableness must be determined on a case by case basis looking at the totality of the circumstances surrounding the supplemental information the offering party seeks to admit.” Blanton v. Board of Supervisors, 720 So.2d 190,195 (Miss.1998).

¶ 11. Lois Brown died in 1998, and this action was filed in 1999. The trial court’s scheduling order provided that plaintiffs were to designate experts by December 31, 2000. The motions for summary judgment were filed in January 2001. Plaintiffs did not designate Dr. McNair as a witness until February 5, 2001, and did not file his affidavit until February 28, 2001. Applying the proper standard, the trial court found as follows:

This Court is of the opinion that the plaintiff has just failed to show any excusable neglect for why the designation of experts was not filed timely. Therefore, the motion for extension of time to designate expert witnesses is denied.
The motion to strike designation of experts is granted. Because there is [sic] no expert witnesses now before this Court, the motion for summary judgment filed by each of the defendants is granted.

¶ 12. The plaintiffs rely on Thompson v. Patino, 784 So.2d 220 (Miss.2001) wherein we held that the striking of an expert designation was considered to be too harsh a sanction for a discovery violation. That decision is clearly limited to the facts of that case and does not stand for the proposition that a trial court may never strike an expert affidavit in response to a discovery violation. Id. at 224. Further, in Thompson, the plaintiffs had designated their expert in 1994 and were seeking to supplement proposed testimony with a deposition which was taken in 1996. The defendants’ motion for summary judgment in that case was not filed until 1997. Although the plaintiffs’ expert affidavit was not filed until after the motion for summary judgment was filed, the expert in that case had been timely designated and his deposition had been taken.

¶ 13. In the present case, the expert was not timely designated. Also, the holding in Thompson dealt with the propriety of a particular sanction for the violation of a discovery rule whereas the instant case involves the failure to comply with a trial court’s order concerning the time frame for the completion of discovery. Neither Dr. McNair’s identity nor his affidavit were made available until after the motion for summary judgment had been filed, notwithstanding the defendants’ previously submitted Rule 26(b)(4) interrogatory [Miss. R. Civ. P. 26(b)(4)] and the trial court’s previously entered agreed scheduling order. The trial judge made a specific finding that the plaintiffs had failed to show any excusable neglect as to why the designation of the expert was not timely filed. This Court has previously held that an action may not be dismissed for a discovery violation if a party is simply unable to comply, but that dismissal may be justified if the violation is the result of “willfulness, bad faith, or any fault of the party.” Fluor Corp. v. Cook, 551 So.2d 897, 903 (Miss.1989) (emphasis added).

¶ 14. Our trial judges are afforded considerable discretion in managing the pre-trial discovery process in their courts, including the entry of scheduling orders setting out various deadlines to assure orderly pre-trial preparation resulting in timely disposition of the cases. Our trial judges also have a right to expect compliance with their orders, and when parties and/or attorneys fail to adhere to the provisions of these orders, they should be prepared to do so at their own peril. See, e.g., Kilpatrick v. Miss. Baptist Med. Ctr., 461 So.2d 765, 767-68 (Miss.1984) (held that trial court did not abuse discretion in dismissing case due to failure to comply with pre-rules discovery statutes relating to timely designation of expert witnesses); Mallet v. Carter, 803 So.2d 504, 507-08 (Miss.Ct.App.2002) (held that trial court did not abuse discretion in dismissing case for failure to timely designate expert witness within the time allowed by the trial court’s scheduling order). The provisions of Miss. R. Civ. P. 37(d)(2) clearly provide that the sanctions for failure to answer Rule 33 interrogatories [Miss. R. Civ. P. 33] are the same as set out in subsections (A), (B), and (C) of Miss. R. Civ. P. 37(b)(2), which provide, inter alia, for sanctions by way of dismissal of a case. In a case wherein we upheld the trial court’s refusal to set aside a default judgment, we stated:

It may be that people will miss fewer trains if they know the engineer will leave without them rather than delay even a few seconds. Although we are not about to inaugurate a policy of entering irrevocable defaults where no answer has been filed by the thirty-first day, we are equally resolved that people know that the duty to answer must be taken seriously. At some point the train must leave.

Guaranty Nat’l Ins. Co. v. Pittman, 501 So.2d 377, 388-89 (Miss.1987).

¶ 15. The sound reasoning in Guaranty National is certainly applicable in the case before us today. As of August 16, 2000, the parties and attorneys knew what was expected of them by the trial court upon its entry of the scheduling order. The parties and the attorneys knew from the express language of the scheduling order that the therein stated deadlines could “not be extended by agreement of the parties, but only by permission of the Court upon showing of good cause.” Pursuant to the provisions of the scheduling order, the plaintiffs were to designate their expert by December 31, 2000, which came and passed uneventfully without any expert designation by the plaintiffs. Notwithstanding the plaintiffs’ failure to timely designate their experts, the defendants dutifully designated their experts in a timely fashion — but the plaintiffs still were not to be heard from by way of their expert designation. It was not until the defendants filed their various motions for summary judgment that the plaintiffs finally designated their medical expert. Additionally, it was not until the hearing on the motions for summary judgment, some sixty-four days after the passage of the plaintiffs’ deadline for expert designation, that the plaintiffs for the first time acknowledged that they had failed to meet the court-imposed deadline. This is when the plaintiffs submitted to the trial court a motion for extension of time to designate an expert and also seeking a retroactive order permitting the late expert designation. The trial judge found that the plaintiffs’ motion for extension of time was untimely inasmuch as it had been filed “over two months after the deadline for designation of expert witnesses had passed and over a month after one or more of the Defendants’ Motion[s] for Summary Judgment were filed.” Upon the trial court’s finding that the plaintiffs had not timely designated an expert in accordance with the provisions of the scheduling order, the trial court then granted summary judgment since the plaintiffs could not make out a prima facie case of medical malpractice without a medical expert.

¶ 16. While the end result in today’s case may appear to be harsh, litigants must understand that there is an obligation to timely comply with the orders of our trial courts. As we noted in Guaranty National, the parties must take seriously their duty to comply with court orders. “At some point the train must leave.” 501 So.2d at 389. That point was reached in today’s case on December 31, 2000.

CONCLUSION

¶ 17. For the reasons stated, the decision of the Court of Appeals is reversed, and the trial court’s summary judgment in favor of the defendants is affirmed.

¶ 18. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE JUDGMENT OF THE TRIAL COURT IS AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER AND COBB, JJ., CONCUR.

GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY, J.

DIAZ, J., NOT PARTICIPATING.

McRAE, Presiding Justice,

Dissenting.

¶ 19. As we found in Thompson v. Patino, 784 So.2d 220 (Miss.2001), absolute and final summary judgment dismissal is too draconian a penalty for a discovery violation such as the one presented here. As the Court of Appeals found, summary judgment is too excessive a sanction for this discovery violation and genuine issues of material fact exist regarding the standard of care and alleged breach which precludes summary judgment. Bowie v. Montfort Jones Mem’l Hosp., 850 So.2d 1210 (Miss.Ct.App.2002). The decision of the Court of Appeals should be affirmed. The facts of the present case were summarized by the Court of Appeals as follows:

On June 13, 1998, Lois Brown, sixty-seven years of age, was brought to Montfort Jones Memorial Hospital by ambulance suffering the aftereffects of a seizure. It was noted at admittance that Mrs. Brown had a history of alcohol-induced seizures and that her blood alcohol content was .19%. Mrs. Brown had a four-inch laceration on her scalp that had been stapled closed. Mrs. Brown had apparently been consuming both beer and whisky at her home which had no air-conditioning on a day when the heat index in Kosciusko reached 110 degrees Fahrenheit. After a CT scan, it was also noted that Mrs. Brown had a “bur hole” in her left temple which had resulted from a past craniotomy.
Mrs. Brown’s condition showed improvement over the next two days. However on June 16th, Mrs. Brown’s condition began to deteriorate. Throughout the evening of the sixteenth and the early morning hours of the seventeenth, Mrs. Brown became increasingly unresponsive. Mrs. Brown died on June 17,1998. The cause of death was determined to be a cerebral hemorrhage which caused both heart and lung failure.
On November 24, 1999, Willie Bowie, individually and as representative of Mrs. Brown’s heirs, filed suit against Montfort Jones Memorial Hospital, Kosciusko Medical Clinic, several physicians, and an unidentified nurse or nurses. The suit alleged that Montfort Jones, the medical clinic, doctors, and nurses were negligent in failing to provide Mrs. Brown with a “nationally recognized minimal” level of care, which caused her death. The defendants’ answer denied any negligence.
On August 16, 2000, an agreed scheduling order was entered by the trial judge. All discovery, including depositions, was to be completed by March 1, 2001. The plaintiffs were to designate an expert no later than December 31, 2000, and the defendants were to designate experts by January 31, 2001. The order provided that the designation of expert witnesses should include all information required to be disclosed under Mississippi Rule of Civil Procedure 26(b)(4)(A). The order stated the deadlines could “not be extended by agreement of the parties, but only by permission of the Court upon showing of good cause.”
No plaintiffs expert was designated by the December 31, 2000 deadline. Mont-fort Jones designated an expert witness on January 26, 2001. It also adopted as an expert any expert designated by the other defendants. The medical clinic and the physicians designated experts on January 31, 2001.
On the same day it designated an expert, Montfort Jones also filed a motion for summary judgment. The physicians filed a similar motion for summary judgment with their designation of experts. They contended that the alleged negligence in this matter was not of the type “within the practical knowledge and experience of lay persons,” and would require expert testimony. Without an expert, the defendants argued that a prima facie case of medical malpractice could not be made. The medical clinic later filed its own summary judgment motion. On February 5, 2002, the plaintiffs designated Dr. Obie McNair as an expert witness. The designation stated that Dr. McNair would testify that the defendants did not properly monitor Mrs. Brown, did not administer blood gas tests, did not provide daily electrolytes, and gave Mrs. Brown too much potassium. Dr. McNair would testify that the high level of potassium caused Mrs. Brown’s “cardiac malfunctioning.” On February 28, 2001, the plaintiffs filed an affidavit from Dr. McNair. The affidavit stated that it was Dr. McNair’s opinion “to a reasonable degree of medical [probability], that the death of Mrs. Brown could have been avoided if proper monitoring of her heart and blood chem-istries had been ... attended to more closely.”
Motions for summary judgment along with motions to strike the plaintiffs late designation were heard on March 5, 2001. At the hearing, plaintiffs’ counsel submitted a motion for extension of time to designate an expert, seeking a retroactive order permitting the late designation. The circuit judge found the motion for extension of time untimely as it was filed “over two months after the deadline for designation of expert witnesses had passed and over a month after one or more of the Defendants’ Motion for Summary Judgment were filed.” The circuit judge noted that the motion claimed the original deadline was not met due to counsel’s attendance at other trials or legal proceedings but that counsel offered no evidence such as calendars to support the claim. The court found that because the plaintiffs had not designated an expert in compliance with the agreed scheduling order that no prima facie case of medical malpractice could be made against any of the defendants. The court also found that even if the late-designated expert’s affidavit was accepted despite its tardiness, it was inadequate to defeat a motion for summary judgment.

850 So.2d at 1211-12.

¶ 20. The facts in Thompson are very similar. As summarized by the Court of Appeals, the facts are as follows:

On February 9, 1993, Karin King Thompson underwent neurological surgery at St. Dominic-Jackson Memorial Hospital in Jackson, Mississippi. The surgery was performed by John P. Gó-recki, M.D., with Carlos S. Patino, M.D., serving as anesthesiologist. Following surgery, Thompson’s tongue became severely swollen. As a result, she began experiencing breathing difficulty and went into cardiac arrest. Medical personnel performed an emergency tra-cheostomy. On February 16, 1994, Thompson filed this suit for damages in the Circuit Court of the First Judicial District of Hinds County, Mississippi, alleging medical malpractice and naming Dr. Patino, St. Dominic, and ten unnamed individuals as defendants.
On March 11, 1994, St. Dominic served Thompson with interrogatories and requests for production of documents. On March 15, 1994, Dr. Patino did likewise. One of Dr. Patino’s interrogatories requested that Thompson name the experts whom she intended to call at trial and the substance of the facts and opinions about which the experts were expected to testify.
After Thompson failed to respond to the discovery requests, on May 16,1994, and June 8,1994, St. Dominic and Dr. Patino filed motions to compel. On June 17, 1994, the circuit court ordered Thompson to respond to the discovery within 7 days.
On June 24, 1994, Thompson served St. Dominic and Dr. Patino with her responses to their interrogatories. Therein she named Bernard Patrick, M.D., and William Cause, M.D., as expert witnesses but she failed to state what their opinions would be.
On July 14, 1994, Thompson filed a motion for extension of time to conduct discovery. On February 10, 1995, Thompson amended her complaint to add Dr. Górecki as a defendant. By agreed order dated September 25, 1995, the circuit court extended discovery for 90 days. In September, 1996, Thompson deposed Dr. Górecki.
On October 18, 1996, Thompson requested an additional 60 days of discovery. The trial court denied this request by order dated December 23,1996.
In November, 1996, Thompson’s counsel’s office was destroyed by fire, and her file had to be reconstructed.
On February 5, 1997, Dr. Patino filed a motion to dismiss, or, alternatively, for summary judgment. Prior to the filing of Dr. Patino’s motion, Thompson had not supplemented her responses to interrogatories.
On February 10, 1997, Thompson supplemented her responses to interrogatories to St. Dominic and Dr. Patino, and named for the first time William Wilson, M.D., as an expert in neurosurgery, and Herbert Ferrari, M.D., as an expert in anesthesiology.
On February 14, 1997, Dr. Patino filed a motion to strike Thompson’s supplemental responses.
On February 18, 1997, Thompson filed her response to Dr. Patino’s motion for summary judgment. On February 21, 1997, Thompson filed Dr. Ferrari’s affidavit wherein he averred that Dr. Patino breached the duty of care owed to Thompson.
In response to Dr. Patino’s motion to strike her supplemental responses, Thompson argued that she had learned additional information during Dr. Go-recki’s deposition that caused the delay in naming Dr. Wilson and Dr. Ferrari as expert witnesses. On March 24, 1997, the circuit court granted the motion to strike, finding that Thompson has sued Dr. Patino in 1994 and could have proceeded against Dr. Patino no matter what Dr. Górecki said in his deposition. Therefore, awaiting Dr. Gorecki’s deposition was not a legitimate excuse for failure to name her experts as to Dr. Patino. The circuit court found that the supplemental responses were tardy and should be stricken.
On March 31, 1997, Dr. Patino moved to strike Dr. Ferrari’s affidavit. Dr. Pati-no argued that, because the discovery responses naming Dr. Ferrari as an expert witness had been stricken, Dr. Ferrari could not testify at trial and he could not submit an affidavit opposing summary judgment. By order dated July 10, 1997, the circuit court struck Dr. Ferrari’s affidavit and granted summary judgment for Dr. Patino.
On August 5, 1997, the trial court granted summary judgment as to Dr. Górecki. On August 13, 1997, the trial court granted summary judgment as to St. Dominic.
On appeal, noting that Thompson had filed suit in February, 1994, was given until December, 1995, to complete discovery, and filed the discovery responses pertaining to her expert witnesses in February, 1997, the Court of Appeals found that the circuit court had not abused its discretion in striking the discovery responses and expert affidavit. Thompson v. Patino, No. 97-CA-00971-COA (Miss.Ct.App. May 18, 1999). Furthermore, because Thompson had no expert witnesses or affidavits in support of her claims, the Court of Appeals found that the circuit court did not err in granting summary judgment in favor of the defendants.

850 So.2d at 1213-14 (quoting Thompson, 784 So.2d at 221-22). Despite the facts in Thompson, we held that summary judgment dismissal was too excessive a sanction; a less severe sanction for the discovery violations was appropriate; and the motion for summary judgment should not have been considered until all responses and affidavits were submitted and reviewed. Thompson, 784 So.2d at 226. We further held that the circuit court’s exclusion of the medical expert evidence which prompted the summary judgment dismissal was an abuse of discretion. Id. at 224.

¶ 21. In Thompson, plaintiffs’ counsel was seventy-five days late in filing her incomplete answers to interrogatories with regard to the designation of a expert witness. Id. at 221. Even after a motion to compel was granted by the trial court, it still took plaintiffs’ counsel sixty-nine days to submit her incomplete responses. Id. Furthermore, counsel had nineteen months of discovery time in which to complete the designated expert affidavit and supplement the answers to her incomplete interrogatories. Id. at . 221-22. Despite all of these facts, we found summary judgment dismissal to be inappropriate and sanctions to be the proper remedy for such disregard for the discovery rules. Id. at 224.

¶ 22. Unlike Thompson, counsel for Bowie was only thirty-six days late in designating an expert and only fifty-nine days late in submitting the expert’s affidavit. Boivie, 850 So.2d at 1211-12. Under the present facts, the scheduling order only gave Bowie essentially three and one-half months to designate an expert and submit an affidavit. Whereas under Thompson, the plaintiffs had nineteen months of discovery time in which to complete the designated expert affidavit and supplement the answers to her incomplete interrogatory responses. Thompson, 784 So.2d at 221-22. Furthermore, with respect to Bowie, no motion to compel was granted.

¶ 23. Looking at the similarity of the two cases and the level of negligence of each attorney, one can clearly see that Bowie’s counsel was negligent, but not as severely negligent in disregarding applicable discovery rules. Clearly, sanctions would have been appropriate; but just as we found in Thompson, absolute and final summary judgment dismissal under these circumstances is too draconian a penalty for a discovery violation. Id. at 223-24.

¶24. Some recognition must also be given to the fact that the Uniform Circuit and County Court Rules call for completion of discovery within ninety days after service of an answer by the defendant absent a different time limit imposed by the Court U.C.C.C.R. 4.04(A). However, the clear thrust of the rule centered around designation of an expert anticipates situations where one party attempts to designate an expert close to the trial date. To this end, the rule states that “[ajbsent special circumstances the court will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least sixty days before trial.” U.C.C.C.R. 4.04(A). Here, we are not dealing with the situation anticipated by this rule. We are dealing with circumstances and facts illustrating that Bowie was not trying underhandedly to sneak in an expert witness right before trial; but rather was only negligent in failing to designate such expert and file the appropriate affidavit within the time specified by a scheduling order. No trial date was imminent, and there was no prejudice caused to the defendants. The Court in Thompson, recognized the purpose of this rule in its holding and found that the record showed that no trial date was imminent. 784 So.2d at 224. This logic is also applicable under the present circumstances.

¶ 25. Under the circumstances, sanctions are the more appropriate remedy. In this regard, the trial judge has ample authority and discretion to impose the appropriate punishment for counsel’s disregard for the scheduling order. Sanctions are available not only under the Uniform Circuit and County Court Rules, but also under applicable Rules of Civil Procedure. Under Rule 1.03 of the Uniform Circuit and County Court Rules, the trial judge may issue “sanctions, [implement] contempt proceedings or other disciplinary actions” as decided by the court. U.C.C.C.R. 1.03. Furthermore, under Rule 37 of the Rules of Civil Procedure, the court may tax the costs and attorneys fees of a Motion to Compel; impose sanctions; strike pleadings; refuse to allow a party to support or oppose designated claims; initiate contempt proceedings; and issue any other sanctions appropriate under the circumstances. M.R.C.P. 37(a)(4), (b)(l)(2), & (e). While summary judgment is excessive and inappropriate under the circumstances, the trial court has an abundance of other remedial devices at its disposal.

¶ 26. Additionally, the trial court found summary judgment dismissal proper; it also went through the motions and found the expert witnesses affidavit insufficient as to support the allegation of medical malpractice, since specifically the “affidavit is woefully lacking in that it fails to allege duty, breach of duty and causation as to each the defendants.” A look at the language in the affidavit reveals that, although duty, breach, and causation are not specifically mentioned, the affidavit does properly address the standard of care, the alleged insufficient standard of care provided by the physician, and the end result of such insufficient standard of care. Just because Dr. McNair, as an expert medical witness, did not use the specific words duty, breach, and causation, does not mean his affidavit is insufficient for failing to allege and support such factors with evidence. Only attorneys are familiar with such wording. A physician in the execution of an affidavit should not be expected to reference such legal terms. All that is required is that the affidavit “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein.” M.R.C.P. 56(e). Rule 56 does not contain a requirement that affidavits submitted must specifically reference the factors and/or elements to prove the case in order to classify as probative evidence in support of a denial of the motion.

¶ 27. The majority errs in relying on pre-Rules of Civil Procedure authority, see Kilpatrick v. Mississippi Baptist Medical Center, 461 So.2d 765, 767-68 (Miss.1984). The Rules of Civil Procedure are based on discovery to define and refine the issues. Upon discovery different types of experts may be needed. The plaintiffs’ attorney did come up with an expert in time to avoid a summary judgment. If the majority wants to sanction the attorney so be it, but should not deny the plaintiffs their day in court. Bowie alleges facts and submits the affidavit of Dr. McNair in support of the theory of medical malpractice. The defendants, of course, deny medical malpractice was committed. As the record shows the defendants swear to one version of events and the plaintiffs swear to an entirely different version of said events, which is sufficient to require denial of a motion for summary judgment. Newell v. Hinton, 556 So.2d 1037, 1041 (Miss.1990) (citing Dennis v. Searle, 457 So.2d 941, 944 (Miss.1984)). Both were able to present probative evidence to support their claims and versions of events. With disputed material facts present, summary judgment was not appropriate.

¶ 28. The Court of Appeals’ decision should be affirmed as our holding in Thompson, 784 So.2d 220, is directly on point and determinative of the issues presented. For these reasons, I dissent.

EASLEY, J„ JOINS THIS OPINION.

      . We quote from the transcript of the trial court’s ruling on these issues:
      This Court is of the opinion that anytime anyone has — anytime a plaintiff files a medical malpractice case, they know from that date forward that they’re going to have to come forward with expert proof to show that there is — has been some malpractice involved. So the plaintiff knew from November 24th, 1999, until December 31st, 2000, that there was going to have to be experts designated.

      And the Court will note that scheduling orders are necessary.The rules are enacted for all people to follow and abide by. And the Court, you know, cannot be lax and allow one to follow the rules and others not to.

      . See also Allison v. State Farm Fire & Cas. Co., 543 So.2d 661, 663 (Miss.1989); Clark v. Moore Mem’l United Methodist Church, 538 So.2d 760, 762 (Miss.1989); Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 63 (Miss.1988); Brown v. Credit Ctr., Inc., 444 So.2d 358 (Miss.1983).


source: Caselaw Access Project

author: McMILLIN, C.J., for the court.

license: Public Domain

text:
    Charles Glen PICKETT, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CA-01407-COA.
    Court of Appeals of Mississippi.
    July 15, 2003.
    Rehearing Denied Sept. 23, 2003.
    Joseph A. Fernald, Brookhaven, for appellant.
    Office of the Attorney General by Jean Smith Vaughan, for appellee.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   McMILLIN, C.J., for the court.

¶ 1. Charles Glen Pickett has appealed from an order of the Franklin County Circuit Court denying his motion for post-conviction relief. Pickett sought to have has guilty plea entered to one count of murder set aside on the basis that he received ineffective assistance of counsel. We affirm.

I.

Background

¶ 2. Pickett pled guilty in April 1999 to murder in the shooting death of David Keith Chisholm. He was sentenced to life imprisonment and two other charges of robbery and a drug-related crime were dismissed. On November 12,1999, Pickett moved to set aside his plea of guilty, claiming he received , ineffective assistance of counsel, that.he did not knowingly and willingly enter a plea of guilty, and that there was a lack of factual basis to support his guilty plea. Though not styled as a post-conviction relief motion, the trial court determined that such a proceeding was the only manner by which Pickett could raise those issues and the court proceeded to resolve the assertions of the pleading on that basis.

¶ 3. The court, in furtherance of its duty to examine the motion and related supporting information as required by Section 99-39-11(1) of the Mississippi Code, permitted Pickett to present witnesses at a preliminary inquiry. The court concluded that a summary dismissal of the motion was not warranted and, therefore, ordered the State to file an answer to the motion under Section 99-39-11(3). The State filed an answer that included the supporting affidavits of the Franklin County Sheriff and Leonard Rosenthal, Pickett’s defense attorney during his plea hearing and sentencing.

¶ 4. The court reviewed all evidence before, it and concluded that a hearing was not necessary. The court concluded that “[Pickett] did kill and murder the victim, gave numerous false, and conflicting accidental versions of the killing and finally confessed to the murder and voluntarily and intelligently entered a plea of guilty, with the assistance of counsel.” The court went on to find no merit in the various complaints raised by Pickett to the circumstances surrounding his guilty plea.

¶ 5. Pickett has now appealed from that order, alleging: - (1) that he received ineffective assistance of counsel; (2) that his plea of guilty was involuntarily given, and (3) there was a lack of factual basis to support his plea of guilty.

II.

Facts

¶ 6. On March 12, 1999, Thomas Chisholm, brother of the victim, reported to the Franklin County Sheriff that his brother had been missing for several days. The ensuing investigation revealed that Pickett had telephoned the victim shortly before he disappeared. As a result, Pickett was sought for questioning and was located on March 19. Pickett told Sheriff Newman that he had received threats against his person and that, as a result, he was in despair to the point he was considering suicide. Investigating officers discovered a suicide note in Pickett’s truck. Pickett consented to going with the officers to the county jail to be further interviewed. Before he was questioned, he was informed of his Miranda rights. He signed a waiver of those rights and answered questions that centered primarily on the alleged threats on his life. The next day, Pickett signed a written statement indicating that he agreed to remain in protective custody at the FranHin County Jail “[d]ue to the investigation of the disappearance of Keith Chisholm and threat on my life.”

¶ 7. Over the next few days, investigating officers questioned Pickett concerning his knowledge of Keith Chisholm’s disappearance. Pickett’s statements concerning the disappearance grew increasingly contradictory until, on March 23, Pickett submitted a written statement along with a signed waiver of his Miranda rights in which he claimed that he had accidentally shot Chisholm in the back of his head while aiming at a deer. Pickett said in his statement that, at that point, he “got scared and hid the body.”

¶8. Pickett led officers to the body where it was hidden in a wooded area. The body had been burned. Chisholm’s wallet was not found on his person and Pickett claimed that he had taken it and a pistol possessed by Chisholm and thrown them into a creek; however, a thorough search did not lead to a discovery of these items.

¶ 9. Pickett later changed his story to say that he had accidentally shot Chisholm when he had pointed the gun at Chisholm and pulled the trigger, thinking that the gun was not cocked and ready to fire.

¶ 10. Based on the evidence gathered and Pickett’s statements, law enforcement officers obtained a warrant for Pickett’s arrest. On March 30, Pickett was appointed an attorney. On April 6, Pickett was indicted for murder, armed robbery and conspiracy to transfer a controlled substance. Pickett entered his guilty plea to murder that same day.

III.

Ineffective Assistance of Counsel

¶ 11. Pickett contends that he received ineffective assistance of counsel. He relies on three alleged deficiencies to support this claim. First, Pickett argues that his counsel failed to expend adequate time in investigating the strength of the State’s case before allowing Pickett to enter a guilty plea. He points to the fact that his attorney’s bill claimed a total of only thirteen and one-half hours of work. Secondly, Pickett states that his attorney failed to interview potential witnesses, failed to investigate the crime scene, failed to review the victim’s autopsy report and failed to demand psychological testing for Pickett. Finally, Pickett argues that his counsel failed to discuss any defense strategies or to explore other options available to Pickett to resolve the charges.

¶ 12. All of these claims raise essentially the same issue, which is that counsel was ineffective in aiding Pickett in his defense by not insisting that Pickett delay the entry of his guilty plea until after the strength of the State’s case could be tested in various ways.

¶ 13. The standard by which this Court reviews a claim for ineffective assistance of counsel was set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland standard requires that the defendant show that his counsel’s performance was deficient and that the deficient performance prejudiced him to the point that he was denied a fair trial. Id. at 687, 104 S.Ct. 2052. The defendant must overcome the strong but rebuttable presumption that counsel’s conduct fell within the “broad range of reasonable professional assistance.” McQuarter v. State, 574 So.2d 685, 687 (Miss.1990).

¶ 14. A claim based on nothing more than an assertion that the attorney spent insufficient time on the case is insufficient to show an entitlement to relief. Harveston v. State, 597 So.2d 641, 642 (Miss.1992). The defendant must also prove that, but for this alleged deficiency, he would not have entered a plea of guilty. Id. Pickett makes a number of broad complaints concerning counsel’s failure to visit the crime scene or interview witnesses, but he makes no contention as to what such efforts could reasonably have been expected to produce in terms of evidence or information helpful to Pickett’s defense. He suggests that there was some duty on defense counsel’s part to seek to suppress Pickett’s confession, but points out no basis for the proposition that such an effort had a reasonable expectation of success. Pickett faults his attorney for not seeking psychological testing, but does not inform the Court as to what benefit might have been gained other than asserting that his attorney had a duty to ensure that he was emotionally stable at the time. He also points to counsel’s failure to obtain a copy of the autopsy report but fails to articulate how he was prejudiced by that failure.

¶ 15. During Pickett’s plea hearing, the judge went to some length to ensure that Pickett was making an informed and intelligent decision to enter his plea of guilty. In the order denying Pickett’s post-conviction relief motion, the trial court concluded that the relatively short time between the commission of the crime and Pickett’s guilty plea arose, not out of defense counsel’s failure to properly perform his duties, but upon Pickett’s own sense of remorse and desire to spare his family any further difficulty by admitting his complicity in the victim’s death and thereby bring the matter to an end. In that situation, we do not find defense counsel’s failure to insist on further delay to be the sort of deficient performance that would warrant relief.

¶ 16. Pickett also alleges that he received ineffective assistance of counsel because his counsel failed to discuss any defense strategies or explore other options to resolve the criminal charges favorably to the defendant. Specifically, Pickett contends that his counsel devoted his entire time to discussing possible plea bargains rather than potential defense strategies. One such strategy appears to be Pickett’s suggestion that he might have gone to trial in hopes that he could be convicted of the lesser offense of manslaughter. Again, as to this assertion and any others advanced in his brief, Pickett fails to show the basis for the conclusion that any such alternate courses of action had a reasonable chance of producing a result more favorable to him. In the absence of such a showing, we find that Pickett’s assertions in this regard fail the second prong of the Strickland test. Therefore, we find this issue to be without merit.

¶ 17. In his last issue, Pickett contends that there was an insufficient factual basis to support his plea of guilty. The record indicates that, prior to the proceedings to accept his guilty plea, Pickett had made a statement to law enforcement officers of his involvement in Chisholm’s death under circumstances that would support a charge of murder. Pickett makes no contention in his post-conviction relief motion that those admissions were untrue or for any other reason would not be admissible in any subsequent proceeding to determine his complicity in the death. The trial court specifically found that there was a factual basis for Pickett’s plea and, under these circumstances, we hold that finding is supported by the record. Based on evidence in the record, we determine that there was sufficient foundation for the circuit court to conclude that Pickett’s conduct was within “the ambit of that defined as criminal.” See Lott v. State, 597 So.2d 627, 628 (Miss.1992). Therefore, we find this issue to be without merit.

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

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ„ CONCUR.


author: LEE, J., for the Court.

text:
    Dennis Durant GRAHAM a/k/a Dennis D. Graham, v. STATE of Mississippi.
    No. 2002-KA-01264-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2003.
    Dennis Durant Graham, appellant, pro se.
    Morris Sweatt, Columbia, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, P.J., LEE and CHANDLER, JJ.
   LEE, J., for the Court.

PROCEDURAL HISTORY

¶ 1. In June 2001, Dennis Graham, along with three other men, was indicted on four counts: armed robbery, aggravated assault, conspiracy to commit armed robbery, and kidnaping. After a trial in June 2002, Graham was convicted of armed robbery and aggravated assault, but found not guilty of conspiracy to commit armed robbery. The judge granted Graham’s motion for directed verdict concerning the kidnap-ing charge. Graham was sentenced to serve life in prison for the armed robbery charge, and twenty years in prison for the aggravated assault charge, said sentences to run concurrently.

¶2. Graham’s motion for new trial or judgment notwithstanding the verdict was denied, and through appointed counsel he now appeals to this Court raising the following issues: (1) Did the circuit court err in denying Graham’s motion for directed verdict? (2) Did the court err in denying Graham’s motion for new trial or judgment notwithstanding the verdict? (3) Was the verdict against the weight and sufficiency of evidence? Graham also filed his own pro se brief, arguing additionally that he was denied effective assistance of counsel. We review all of these issues and find no merit; thus, we affirm.

FACTS

¶ 3. On April 15, 2001, Dennis Graham (“Graham”), Calvin Graham, Nicholas Cortez and Anthony Goleman went to Michael and Carrie’s Place, a lounge in Pike County. During their stay, a brawl ensued between Graham and another patron, and owner Michael Hampton was summoned to break it up. When Hampton approached, Graham took out a gun and first fired a shot into the ceiling, then announced that this was a robbery and forced Hampton to his knees. Graham kicked and threatened Hampton, then shot him in the head and took his wallet. One of the men took Carrie Caezar, the co-owner, to a bathroom in the back after which Graham came back, pointed a gun to her chest, and told her to tell Hampton to give him all of their money, which she did. Graham and the others fled the bar in a car, which they later abandoned on the highway, running away from police on foot. Graham was caught shortly thereafter, and the other three men were caught a few days later in Louisiana.

DISCUSSION

¶ 4. Although Graham’s attorney on appeal lists three issues, he combines them into one discussion concerning the weight and sufficiency of evidence; accordingly, we address them in this manner.

Sufficiency of Evidence

¶ 5. First, we look to our standard of review concerning the sufficiency of evidence.

The standard of review for a denial of a judgment notwithstanding the verdict and a directed verdict are identical. The Mississippi Supreme Court has stated that in reviewing the trial court’s denial of JNOV: [T]he sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. The credible evidence consistent with [the defendant’s] guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence.... We are authorized to 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 fair-minded jurors could only find the accused not guilty.

Beard v. State, 837 So.2d 235(¶ 20) (Miss.Ct.App.2003).

¶ 6. In the brief filed by Graham’s appointed appellate counsel, Graham listed five elements missing from the State’s case which he claims demonstrates that the evidence was insufficient for conviction: (1) no weapon was found; (2) no bullet projectiles or fragments of bullets were retrieved from the ceiling, the floor, or from Hampton’s head; (3) results from a gunshot residue test of Graham taken ninety minutes after the alleged shooting proved negative for gunshot residue; (4) none of the eight-hundred dollars supposedly taken was recovered; and (5) of the three who were presented a photographic lineup and a physical lineup, one person, Tim Clem-mons, picked another person rather than Graham.

¶ 7. Our standard of review does not require us to review what evidence was not presented, but to examine what evidence was presented in evaluating whether such evidence was sufficient to support the verdict. We are only to consider the credible evidence consistent with the defendant’s guilt and to 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 fair-minded jurors could only find the accused not guilty. Id. Accordingly, we review the evidence that was presented to determine whether such evidence was sufficient to support the verdict.

¶ 8. At the trial co-defendants Nicholas Cortez and Anthony Goleman both testified against Graham. Cortez testified that after he saw Graham fire the gun, he fled the building and returned to the car. He testified that Graham had a gun and some wallets when he left the bar, and once in the car, Graham and Calvin began counting the money as they fled. Goleman testified that he also saw Graham counting money in the car after they fled.

¶ 9. Michael Hampton and Carrie Cae-zar, owners of the bar, both testified. Hampton identified Graham as the person who shot him in the head after forcing him to his knees, kicking and threatening him, then taking his wallet. Hampton picked Graham out of both a photographic lineup and a physical lineup. Caezar testified that Graham was the person who held a gun to her chest and demanded that she tell Hampton to give her money. She also testified that when she was being forced to the bathroom, she heard a shot and turned around to see Graham holding a gun. She also picked Graham out of both a photographic and a physical lineup.

¶ 10. Investigator Robert Holmes of the Pike’s County Sheriffs Department testified that photographs entered into evidence fairly and accurately depicted the scene, that a receipt from Addison, another of the robbery victims from the bar, was found in the getaway car, and that he was present when both Hampton and Caezar individually identified Dennis Graham from a physical lineup and photographic lineup.

¶ 11. Dr. Brett Tisdale, a doctor at the Southwest Mississippi Regional Medical Center, treated Hampton after the incident. Dr. Tisdale testified that Hampton’s head wounds were consistent with having been shot in the head.

¶ 12. Graham testified in his own behalf and denied threatening Caezar. He also denied robbing or shooting anyone, only admitting to his involvement in an altercation with someone at the bar. Viewing the evidence in a light favorable to the State, accepting that evidence in support of Graham’s guilt as true, and giving the benefit of all favorable inferences that may be reasonably drawn from the evidence, we find the evidence in this ease was sufficient to support a verdict of guilt. Thus, we find no merit to this argument.

Weight of Evidence

¶ 13. Next, Graham argues the weight of the evidence did not support the verdict, and we look to our standard of review.

Matters regarding the weight and credibility of the evidence are to be resolved by the jury. We are authorized to 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 fair-minded jurors could only find the accused not guilty.... [W]e give the jury’s verdict the benefit of all favorable inferences, accept as true the evidence favorable to the verdict, and reverse only if we are “convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice.”

Towner v. State, 812 So.2d 1109 (¶¶ 30-31) (Miss.Ct.App.2002). A motion for new trial goes to the weight of the evidence. Grant v. State, 762 So.2d 800(¶ 10) (Miss. Ct.App.2000).

¶ 14. In Graham’s motion for new trial, he listed nothing specific, only stating his general challenge that the verdict was against the overwhelming weight of the credible evidence. We find that reasonable and fair-minded jurors could have found Graham guilty based on the evidence presented, and no unconscionable injustice results in allowing the verdict to stand. Accordingly, this point is without merit.

Ineffective Assistance of Counsel

¶ 15. In his pro se brief, Graham argues his trial counsel was ineffective. Specifically, Graham claims that his counsel failed to file any pretrial motions, failed to subpoena any witnesses on his behalf, and failed to fully investigate his case and discuss it with him. According to our standard of review, Graham must show that his counsel’s performance was deficient and that the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Further, “[t]he burden to demonstrate, both prongs is on the defendant who faces a strong presumption that counsel’s performance falls within the broad spectrum of reasonable professional assistance.” See Ellis v. State, 773 So.2d 412(¶ 3) (Miss.Ct.App.2000).

¶ 16. In Day v. State, 818 So.2d 1196 (Miss.Ct.App.2002), Day argued that his counsel was ineffective for failing to file pre-trial motions, conduct adequate discovery and in failing to meet with him to discuss the case. Id. at (¶ 9). This Court applied Strickland and considered the totality of circumstances. Id. at (¶ 10).

This totality of circumstances must be considered in conjunction with the “strong but rebuttable presumption that counsel’s conduct falls within a broad range of reasonable professional assistance.” The presumption is overcome if the defendant demonstrates “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” “In addition to the presumption that counsel’s conduct is reasonably professional, there is a presumption that counsel’s decisions are strategic in nature, rather than negligent.”

Id. at (¶ 11) (citations omitted). Concerning Day’s specific allegations that his attorney neglected to consult with him and to file appropriate pre-trial motions, this Court further stated:

The court held in Harveston v. State, 597 So.2d 641, 642 (Miss.1992), that “complaints of ineffective assistance of counsel, because [an] attorney failed to make pretrial investigation and to spend more time with [client], are insufficient as a matter of law.” Therefore, Day’s claim of ineffective assistance of counsel based on the counsel’s failure to meet more often with him is without merit.
In Powell v. State, 536 So.2d 13, 16 (Miss.1988), the court held that “the mere fact that the attorney did not file a motion for discovery is not sufficient to raise an ineffective assistance of counsel claim.” The Powell court determined that “ ‘the filing of pre-trial motions falls squarely within the ambit of trial strategy.’ ” This Court does not normally, and will not do so here, second guess counsel’s trial strategy.

Day, 818 So.2d at (¶ 15-16) (citations omitted) (emphasis added).

¶ 17. As Graham’s arguments are in line with those Day raised before this Court, we find that, as in Day, Graham has failed to meet the two-prong Strickland test to show deficient performance or that he was prejudiced by such deficiency. Ergo, we find this argument to be without merit.

¶ 18. THE JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT OF CONVICTIONS OF COUNT I, ARMED ROBBERY AND SENTENCE OF LIFE IMPRISONMENT; COUNT II, AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, SAID SENTENCES TO RUN CONCURRENTLY AND TO PAY FULL RESTITUTION, IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

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


text:
    James (Jim) Walter SCRIVENER, Appellant, v. Lula Fay K. JOHNSON and Jimmy Carl Johnson, Appellees.
    No. 2002-CA-01959-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2003.

      Taylor Tucker, attorney for appellant.
    Ronald Stephen Wright, Ackerman, attorney for appellee.
    Before KING, P.J., LEE and CHANDLER, JJ.
   LEE, J., for the Court.

PROCEDURAL HISTORY

¶ 1. On August 5, 2000, James Scrivener filed a complaint in the Chancery Court of Oktibbeha County to quiet and confirm title in approximately .5 acres of land, which he contended he had acquired by adverse possession. Additionally, Scrivener sought damages against Fay Johnson, L.P. and Jimmy Carl Johnson for timber trespass and destruction of a fence. Lula Fay K. Johnson was originally a party to the lawsuit; however, she had conveyed the property in question, along with other property in Oktibbeha County, to Fay Johnson, L.P. in 1996. Ms. Johnson was eventually dismissed as a party and the limited partnership was substituted as a party defendant. The Johnsons filed an answer shortly thereafter.

¶ 2. A trial was held on the matter on May 16, 2002. The chancery judge found that the proof was insufficient to establish adverse possession of the parcel in question and denied Scrivener’s request for damages. Scrivener now perfects his appeal to this Court, asserting the following issues: (1) the chancery judge erred in not finding that he had acquired the property in question by adverse possession and (2) the chancery judge erred in not awarding him damages, including attorney’s fees.

FACTS

¶ 3. Scrivener is the owner of record of the south half of the Southeast Quarter of Section 4, Township 19, Range 12 East, Oktibbeha County, Mississippi. Scrivener obtained this piece of property from his parents in December 1980. His parents had obtained eight-ninths interest in the property in 1963 and the final one-ninth in January 1978. Scrivener does not live on the property but uses it for recreation and timberland.

¶ 4. The Johnsons are the owners of record of the Northeast Quarter of Section 9, Township 19 North, Range 12 East, Oktibbeha County, Mississippi. These are adjoining parcels, with Scrivener’s property directly to the north of the Johnsons’ property. The Johnsons do not live on the property but use it for timberland. The piece of property at issue is a .5 acre triangle located in the northeast corner of the Johnsons’ property. The disputed property runs 70 feet along Harpole Road, which borders both properties on the east, 700 feet along the boundary line between sections 4 and 9, and then 710 feet along the hypotenuse following an old barbed wire fence.

DISCUSSION OF ISSUES

I. DID THE CHANCERY JUDGE ERR IN NOT FINDING THAT SCRIVENER HAD ACQUIRED THE PROPERTY IN QUESTION BY ADVERSE POSSESSION?

¶ 5. Scrivener contends that the property in question has been used by him since 1980 and his predecessors in title since at least 1935 and therefore he has acquired title to the land by adverse possession. In reviewing the decisions of a chancellor, we look for abuse of discretion. McNeil v. Hester, 753 So.2d 1057(¶21) (Miss.2000). This Court will not disturb a chancellor’s findings unless the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard. Rice v. Pritchard, 611 So.2d 869, 871 (Miss.1992).

¶ 6. Mississippi’s adverse possession statute, codified as Mississippi Code Annotated Section 15-1-13 (Rev.2003), reads in pertinent part as follows:

Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title....

For possession to be adverse it must be (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful. Rice, 611 So.2d at 871. The burden of proof is on the adverse possessor to establish by clear and convincing evidence that each element is met. Id. In most cases, the underlying question is whether the possessory acts relied upon by the would-be adverse possessor are sufficient to put the record title holder on notice that the lands are held under an adverse claim of ownership. Peagler v. Measells, 743 So.2d 389(¶ 7) (Miss.Ct.App.1999). Furthermore, a “land owner must have notice, actual or imputable, of an adverse claim to his property in order for it to ripen against him, and the mere possession of land is not sufficient to satisfy the requirement of open and notorious.” People’s Realty & Dev. Corp. v. Sullivan, 336 So.2d 1304,1305 (Miss.1976).

¶ 7. Scrivener lists the following as evidence that the property in question had been under the use and control of him or his predecessors in title: Scrivener’s predecessor in title used the land as his own by cutting timber from it in 1978; a road was built on the property in 1978 to remove the timber; Scrivener has used the property as his own by hunting, growing timber, harvesting timber, and planting seedlings since 1980; and the old barbed wire fence has been in existence since around 1935. However, according to testimony by Tommy Williams, who conducted logging for Weyerhaeuser Company on Hubert Scrivener’s (Jim’s father) property in 1978-79, Williams built the logging road on part of the Johnsons’ property where it left Harpole Road. Williams testified that Weyerhaeuser received permission from the Johnsons to build the road on the property in question. Williams also testified that Weyerhaeuser began to cut timber on the property in question but was told it was not Scrivener’s property. Wey-erhaeuser ceased cutting timber south of the section line and compensated the John-sons for the few trees cut.

¶ 8. In 1997, George Bowman purchased timber from Scrivener, but cut no timber south of the section line as he was told the property in question was the Johnsons’ property rather than Scrivener’s. We note that the timber deeds relating to the logging in 1978 and 1997 make no reference to the particular property in question, rather the deeds mention only land located in section 4. Randy Haynes walked the property in question before the trial in 2002 and noted the surveyed line north of the 1978 logging road. Haynes testified that he had seen hatchet marks on trees denoting the property line. These marks followed the section line and had been there for quite some time. Haynes saw no evidence of pine trees that would have been around twenty years old, but he did see evidence of a fairly recent cut north of the marked line in section 4.

¶ 9. Andy Johnson, Jr., one of the general partners of Fay Johnson, L.P., testified that he was present when a survey was done right after Weyerhaeuser flagged the line. Johnson testified that the survey line was marked by hatchet marks. Johnson also testified that the old barbed wire fence has never been the property line. When Scrivener built a new fence to replace the old barbed wire fence, Johnson took it down because it was on his property-

¶ 10. With regards to the old barbed wire fence, we note that the mere existence of an old fence near the actual boundary line does not establish adverse possession. Davis v. Clement, 468 So.2d 58, 63 (Miss.1985). The chancellor noted in his judgment that there was no proof presented by Scrivener that his predecessors in title constructed the old fence or claimed ownership of the property in question.

¶ 11. In looking at this evidence, the chancellor determined that the activities of Scrivener and his predecessors in title “are not sufficient to meet the burden required of Plaintiff to establish title to this parcel of land by adverse possession.” We likewise find that Scrivener has failed to meet any element of adverse possession by clear and convincing evidence. As we cannot find that the chancellor abused his discretion or was manifestly wrong, we affirm.

II. DID THE CHANCELLOR ERR IN NOT AWARDING SCRIVENER DAMAGES, INCLUDING ATTORNEY’S FEES?

¶ 12. The chancellor not only denied Scrivener relief, including attorney’s fees, and dismissed his complaint, but also denied the Johnsons’ request for attorney’s fees and ordered the costs of the action assessed to Scrivener. In his brief, Scrivener fails to mention why he is entitled to attorney’s fees. Rather Scrivener states that he is entitled to the cost of repairing the fence he built and the cost of the seven trees Andy Johnson cut down. Scrivener cites Mississippi Code Annotated Section 95-5-10 (Rev.1994) as authority for his argument that any person who takes a tree without the consent of the owner is liable in an amount double the fair market value of the tree. However, as the chancellor found that Scrivener was not the owner of the property in question by adverse possession, this issue is moot.

¶ 13. THE JUDGMENT OF THE CHANCERY COURT OF OKTIBBEHA COUNTY IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

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


text:
    Ulysses BOWNES a/k/a Ulysses Bowens, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-02122-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2003.

      Thomas C. Levidiotis, Oxford, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, P.J., LEE and CHANDLER, JJ.
   LEE, J., for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On February 21, 2000, Ulysses Bownes walked into the Auto Zone store in Holly Springs, Mississippi, and shot Roosevelt Faulkner seven times with a rifle. Bownes was later convicted of murder by a jury in the Circuit Court of Marshall County and sentenced to life in prison, to be served in the custody of the Mississippi Department of Corrections. Bownes now perfects his appeal to this Court, asserting the following issues: (1) the jury verdict was against the overwhelming weight of the evidence; (2) the trial court erred in refusing to grant jury instruction D-5; and (3) the cumulative effect of the above errors acted to deny him a fundamentally fair trial. Finding no merit to the issues presented, we affirm.

DISCUSSION OF ISSUES

I. WAS THE JURY VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 2. In his first issue, Bownes argues that the jury’s verdict was against the overwhelming weight of the evidence. We look to our standard of review in determining whether the jury verdict was against the overwhelming weight of the evidence:

[T]his 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. As such, if the verdict is against the overwhelming weight of the evidence, then a new trial is proper.

Baker v. State, 802 So.2d 77(¶ 14) (Miss.2001).

¶ 3. In his argument, Bownes claims that his conviction should not stand because it is based solely on the testimony of three eyewitnesses, testimony which he contends is faulty. The three eyewitnesses testified for the prosecution and either saw Bownes shoot Faulkner or saw him leave the store immediately after the shooting. Christy Young, an Auto Zone employee, was standing at the front near the register when Bownes entered the store. Young testified that she saw Bownes holding a gun down by his leg, that she made eye contact with Bownes, that she saw Bownes shoot his gun down the aisle, and that she saw Bownes calmly walk out of the front door after shooting Faulkner. Young identified Bownes from a photographic lineup about a week after the crime.

¶ 4. Michael Stephen was also working at the Auto Zone when he heard the shots and saw Bownes walk out of the front door. Stephen recognized him because Bownes had been in the store prior to the shooting to pick up a battery for his father’s car and Stephen had assisted him. Stephen was also able to give an accurate description of the car Bownes was driving. John Mitchell, another Auto Zone employee, heard the shots, saw Bownes holding a gun, and watched Bownes get into a car immediately after the shooting. Mitchell testified that he had seen Bownes a few times before around town. Mitchell also identified Bownes from a photographic lineup.

¶ 5. It has long been a rule in Mississippi that it is within the discretion of the jury to accept or reject testimony by a witness, and the jury “may give consideration to all inferences flowing from the testimony.” Mangum v. State, 762 So.2d 337(¶ 12) (Miss.2000) (quoting Grooms v. State, 357 So.2d 292, 295 (Miss.1978)). The jury had the testimony of three eyewitnesses, all of whom clearly identified Bownes as the shooter. Accepting as true all the evidence that supports the guilty verdict, we cannot find that the verdict was so unconscionable as to require a new trial.

¶ 6. Bownes also implies that the lack of physical evidence linking him to the murder somehow negates the eyewitness testimony. However, “the absence of physical evidence does not negate a conviction where there is testimonial evidence.” Graham v. State, 812 So.2d 1150(¶ 9) (Miss.Ct.App.2002); see also Williams v. State, 512 So.2d 666, 670 (Miss.1987). We find this issue to be without merit.

II. DID THE TRIAL COURT ERR IN REFUSING TO GRANT JURY INSTRUCTION D-5?

¶ 7. In his next issue, Bownes contends that the trial court erred in refusing to grant jury instruction D-5. The jury instruction in question is as follows:

The Court instructs the jury that the defendant has the right to testify on his own behalf, and you should not disbelieve him simply because he is charged with the offense in this case. His testimony is entitled to just as much faith and credit as you, under all the circumstances, think it should have. Furthermore, his testimony is entitled to just as much consideration as that of any other witness who has testified in this case.

¶ 8. Bownes claims that, without this cautionary instruction, the jury would give less credit to his testimony, thereby unfairly limiting his ability to present his case and depriving him of his right to a fair and impartial trial. In reviewing a challenge to jury instructions, the instructions actually given' must be read as a whole. Williams v. State, 803 So.2d 1159(¶7) (Miss.2001). When so read,.if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. Id. Upon review of the record,, it is clear that the jury instructions given in this case clearly announce the law of the case and create no injustice to Bownes.

¶ 9. Furthermore, the supreme court has held that “defendants are not entitled to an instruction which informs the jury that the defendant is a competent witness in his own behalf.” Baker v. State, 391 So.2d 1010, 1012 (Miss.1980). The court reasoned that the defendant’s

competency as a witness was evident by his appearance on the witness stand. If he had not been competent, he would not have been permitted to testify. There is no sound reason for a trial court to instruct a jury that any witness, including the defendant is a competent witness. The jury, in its search for truth, is the sole judge of the worth and weight of the testimony of any witness, and should be free to make this judgment without instructions singling out or pointing to any particular witness stating such witness is competent.

Id. This holding was reaffirmed in Outlaw v. State, 797 So.2d 918(¶ 17) (Miss.2001); Coleman v. State, 697 So.2d 777, 783-84 (Miss.1997). We find this issue to be without merit.

III. DID THE CUMULATIVE EFFECT OF THE ABOVE ERRORS ACT TO DEPRIVE BOWNES OF A FUNDAMENTALLY FAIR TRIAL?

¶ 10. Finding Bownes’ individual arguments to be without merit, we likewise can find no cumulative error that would necessitate a reversal. Therefore, we affirm.

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

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


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

text:
    Terry ABRAM a/k/a Terry Abrams, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01755-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2003.
    Morris Sweatt, Columbia, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellant.
    Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   SOUTHWICK, P.J., for the Court.

¶ 1. Terry Abram was convicted of one count of simple assault on a law enforcement officer by a circuit court jury. He appeals arguing the court erred when it denied his motion for a directed verdict, denied a jury instruction, and that the verdict was against the weight of the evidence. We find no error and affirm.

STATEMENT OF FACTS

¶ 2. On the night of September 10, 2001, Officer Michael Stevens and Officer Randy Dyess of the Columbia Police Department were on patrol. They discovered Terry Abram inside an old scrap yard building. The officers instructed Abram to leave the building, but he refused to do so. Abram said that he lived in the building. After an additional demand and refusal, Abram began to run. The officers split up to pursue Abram in order to arrest him.

¶3. Deputy Sheriff Eugene Ryals arrived after hearing a call for assistance. He and Officer Dyess found Abram inside an abandoned building. Abram was sitting on a couch. As the officers approached, Abram stood up. After Ryals grabbed Abram’s arm, Abram pulled backwards from the officer. Both men fell onto the couch on which Abram had been sitting. There was testimony that Abram was kicking and clawing at Ryals’ face. Other officers helped subdue Abram.

¶4. Officers Stevens, Dyess, and Ryals all went to the emergency room for treatment. Abram was charged with three counts of simple assault on a law enforcement officer. The jury reached a guilty verdict only as to the count concerning Officer Ryals. Abram appeals.

DISCUSSION

1. Sufficiency of evidence

¶ 5. Abram challenges the sufficiency of the evidence, alleging that he was entitled to a peremptory instruction or judgment notwithstanding the verdict on the charge of simple assault. He also argues that he is at least entitled to a new trial because the great weight of the evidence supported his innocence. Primarily, Abram argues that the injuries to Officer Ryals, if any, were too minor to support a finding of assault, and regardless, the injuries were accidental.

¶ 6. A person is guilty of simple assault if he either attempts or purposely, knowingly or recklessly causes bodily injury to another. Miss.Code Ann. § 97 — 3—7(1)(a) (Rev.2000). There was testimony that Abram clawed Ryals’ face. The officer was treated at a hospital for scratches that went from his neck to his chest. The scratches burned and stung Ryals for a couple of days. A picture taken of Officer Ryals showing the scratches on his neck was presented to the jury.

¶ 7. Abram contends that he scratched Officer Ryals because he lost his balance. He claims that Ryals was not actually injured since he did not require bandages or medication and he was able to finish his shift that night. However, the jury found the State’s account of events to be correct. Ryals did receive bodily injury at least to the extent of having scratches on his face that burned for two days. This meets the definition of assault under the statute. Abram’s somewhat different account, which in essence was that the slight injuries to the officer were inadvertent, did not have to be accepted by the jury if it found the other evidence more credible. That they did. We affirm.

¶ 8. THE JUDGMENT OF THE MARION COUNTY CIRCUIT COURT OF CONVICTION OF COUNT II SIMPLE ASSAULT ON A POLICE OFFICER AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH SENTENCE TO RUN CONSECUTIVELY TO ANY OTHER SENTENCE, AND PAY PAST-DUE FINES OF $1,735.50 TO CITY OF COLUMBIA IS AFFIRMED. ALL COSTS ARE ASSESSED TO MARION COUNTY.

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


author: SOUTHWICK, P. J„ for the Court.

text:
    Walter Theodore MOEN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00931-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2003.

      Mark V. Knighten, Ocean Springs, attorney for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   SOUTHWICK, P. J„ for the Court.

¶ 1. A circuit court jury found Walter Moen guilty of unlawfully filming another person. On appeal, Moen argues the trial court erred in its handling of videotape evidence. We find no error and therefore affirm.

¶ 2. Walter Theodore Moen owned a home in Ocean Springs. At times he would allow others to stay with him. The victim, whom we will not name, and her mother had stayed with Moen, but both eventually moved out. Beginning in 1999, the younger former boarder, by then being nineteen years old, moved back into Moen’s home. She had a bedroom that she Was allowed to use and paid no rent. In February 2000, the young woman searched through some videotapes in order to record a television program. She found a tape and played it to be certain that she was not recording over something else. She discovered scenes of herself in her bedroom. As would be proven at trial, the tape had been recorded by a camera hidden in- a false smoke detector.

¶ 3. The victim took the tape to a lawyer whom she had used in the past. A paralegal in that office, Laura Murphy, took the tape to Dancel Productions to have a copy made. The paralegal sent the original tape to the prosecutor’s office and a copy to Moen’s attorney. The victim also reported the videotaping to the police. Using a search warrant, the police searched Moen’s home. Video cameras were discovered that were disguised as smoke detectors. Also obtained was a quad processor that could be used to re-record excerpts from other tapes, and video recorders. There was also forty-five hours worth of videotape of the woman’s bedroom taken from Moen’s home.

¶ 4. Two tapes were introduced at trial that consisted solely of scenes of the victim either in the nude or performing sexual acts. These were edited versions of longer tapes. A copy of one of the two tapes, State’s Exhibit 14, was given to Moen in discovery. The tape that the victim found was State’s Exhibit 8 and it was not given to Moen by the State. However, Moen’s attorney had possessed it for a considerable period of time. It was similar but not identical to Exhibit 14, as it too had been edited to show only the victim in the nude or performing sexual acts. The victim filed a civil suit against Moen. Moen’s lawyer was the same for both his criminal and civil cases, and the tape that was Exhibit 8 was significant in both proceedings.

¶ 5. Moen argued that he installed the recording devices as part of a home security system. He began to record his boarder because he suspected that she was selling drugs from his home. Moen claimed at trial that since during discovery he had not been provided the videotape that the victim had found, State’s Exhibit 8, it was inadmissible. He further claimed that he was unaware that the paralegal, Laura Murphy, would be called as a witness to authenticate the tape, as she was not identified in discovery responses. He further claimed that there was no showing of chain of custody with regard to the State’s Exhibit 8. The trial court allowed the tape to be admitted into evidence and allowed Murphy to testify. The issues regarding Exhibit 8 form the sole basis for this appeal.

DISCUSSION

1. Admission of tape into evidence

¶ 6. The standard of review regarding the admission or exclusion of evidence is to determine whether the trial judge committed an abuse of discretion. Gilley v. State, 748 So.2d 128, 125 (Miss.1999). The prosecution was allowed to have admitted into evidence the videotape that had not been provided by the State during discovery, but which Moen had obtained earlier from the victim’s own attorney. Moen argued that since the State did not give him a copy of this particular tape, it was technically inadmissible.

¶ 7. The significance of the tape may be seen by examining the crime charged:

Any person who with lewd, licentious or indecent intent secretly photographs, films, videotapes, records or otherwise reproduces the image of another person without the permission of such person when such a person is located in a place where a person would intend to be in a state of undress and have a reasonable expectation of privacy....

Miss.Code Ann. § 97-29-63 (Rev.2000). Both Exhibit 8 (not provided during discovery) and Exhibit 14 (provided during discovery) contained edited, similar, but not identical scenes. It contained no footage of the victim doing other things or of just the empty bedroom.

¶ 8. Whether failure to provide the tape was a discovery violation would depend on whether the prosecutor and the defense counsel both knew that the defense had this tape, that Moen had been informed of its potential use, and the failure to provide another copy was due to at least a tacit agreement or at least reasonable belief by the prosecutor that no additional copy was needed.

¶ 9. If there was a discovery violation, we find it to be harmless. There has been no argument made here that there were substantive differences in proof of the crime between the two edited tapes, both of which Moen ostensibly made. A discovery violation is subject to harmless error analysis. Buckhalter v. State, 480 So.2d 1128, 1128 (Miss.1985). Moen always knew of the existence of the videotape. He was given a copy of this tape and never requested to see the original. If there was error, it had no effect on the trial.

2. Witness Murphy

¶ 10. Moen also argues that the trial court committed reversible error when it allowed Laura Murphy, the paralegal at the office of the victim’s lawyer, to authenticate the edited tape that the victim first discovered. Murphy was not designated as a witness during discovery. There was evidence that Murphy took the videotape that was State’s Exhibit 8 to a business to have a copy made. She then sent the copy of the tape, along with a letter to Moen’s attorney. He had the same attorney for both his criminal and civil cases. Murphy testified at trial that the copy she sent to Moen’s attorney contained the same footage as the videotape the victim brought to her office though she never watched either video in its entirety.

¶ 11. When Murphy was called to testify at trial, Moen objected because he claimed not to know who she was. It was then explained who she was. It is necessary for the prosecution to provide the defense with a list of witnesses upon request, but errors in doing so are reviewable for their harmfulness. That requires a determination of whether a failure caused a miscarriage of justice. Dennis v. State, 555 So.2d 679, 682 (Miss.1989). We find that Moen knew of the paralegal’s existence and the manner in which the videotape had been handled by her, that he had received a letter well before trial from her regarding the tape, and that her testimony only recounted what Moen already knew. Moreover, the videotape that was admitted through her was one of two tapes that independently and similarly proved Moen’s guilt. The other videotape was not the subject of any objection that is raised on appeal.

¶ 12. Any error for the failure to designate Murphy as a witness was harmless.

S. Chain of custody

¶ 13. Finally, Moen argues that the chain of custody for the videotape that was State’s Exhibit 8 was doubtful. Moen argues that this videotape was not in the possession of police officers but was rather in the hands of private citizens. There is a presumption of regularity favoring chain of custody of objects under police control. Barnes v. State, 763 So.2d 216, 222 (Miss.Ct.App.2000). Moen argues that this privately held videotape is not subject to a presumption of regularity.

¶ 14. The victim testified that she took the tape to her lawyer’s office. The tape was then taken for a copy to be made. These tapes were returned to the lawyer’s office. The tapes were then sent to the prosecutor and to Moen’s attorney. Murphy testified that the tape had not been altered and that the copy was the same as the original. The victim also testified that the tape she had taken from Moen’s home was the same as the tape that would become State’s Exhibit 8.

¶ 15. The Supreme Court has held that “the test for the continuous possession of evidence is whether or not there is any indication or reasonable inference of probable tampering with the evidence or substitution of the evidence.” Gilley, 748 So.2d at 127. There is no indication that there was tampering with this videotape. Authentication of evidence is satisfied when it is shown by satisfactory proof that the matter in question is what its proponent claims. M.R.E. 901(a). Constant police custody of the evidence is not needed, nor does the prosecution have to produce every handler of the evidence. Ormond v. State, 599 So.2d 951, 959 (Miss.1992).

¶ 16. We need not decide whether a presumption of regularity applies to such privately held evidence. The trial court decided that there was positive evidence that this video was what the prosecution claimed it to be. Even absent a presumption, we find no evidence of tampering and substantial proof that the tape was identical to the one the victim found in Moen’s home. There was no error in admitting State’s Exhibit 8 into evidence.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY OF CONVICTION OF UNLAWFUL PHOTOGRAPHING OR FILMING OF ANOTHER AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FOUR YEARS SUSPENDED AND ONE YEAR TO SERVE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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