author: EASLEY, J.,

text:
    Jane DOE, as Mother and Next Friend of John Doe, a Minor v. The SALVATION ARMY.
    No. 2001-CA-01599-SCT.
    Supreme Court of Mississippi.
    Jan. 23, 2003.
    Beth Burton, Jackson, Edward Black-mon, Canton, Christopher Brandon Glass, Birminghan, AL, Jerry L. Beasley, attorneys for appellants.

      Robert L. Gibbs, Teselyn Afrique Melton, Amy Manderson Klotz, Jackson, attorneys for appellee.
   EASLEY, J.,

for the Court.

STATEMENT OF THE CASE

¶ 1. This case involves whether the trial court correctly refused to submit the issue of punitive damages against The Salvation Army (TSA) to a jury. In December, 1998, Jane Doe, mother and next of friend of John Doe, a minor, filed in the Holmes County Circuit Court a civil action for damages against Gregory Peters (Peters), Chris Flanagan (Flanagan), and The Salvation Army (TSA). There were actually four Jane Doe mothers and four John Doe minors involved in the suit. (Jane Doe and John Doe plaintiffs are collectively named hereinafter as “the Does”). The lawsuit arose out of the alleged sexual assaults by Peters against the four minor boys. The boys were attending a summer camp at a TSA facility in Holmes County, Mississippi. Flanagan was an officer at the camp, owned and operated by TSA. Peters, a counselor at the TSA camp, allegedly assaulted the minors.

¶ 2. A trial ensued, and a jury returned a verdict finding that Peters sexually assaulted the minor boys while acting as an agent of TSA. Further, the jury found by a preponderance of the evidence that TSA was negligent in its training, supervising and retaining of Peters and the failure was a proximate cause of the injuries. The four minor Does were awarded $80,000 each for a total of $120,000 in compensatory damages. As to the percentage of liability, the jury attributed 5% fault to Peters, 10% to Flanagan and 85% to TSA.

¶ 3. At the conclusion of the trial, the issue of whether punitive damages should be submitted to the jury was raised. After consideration, the trial court declined to submit the issue to the jury. The trial court ruled:

Before this Court is the matter of whether or not the jury should consider the issue of punitive damages. Punitive damages are liable if a person acted with actual malice, gross negligence which evidences the willful, wanton, or reckless disregard for the safety of others, or committed actual fraud. I do not find from the evidence that there was any actual malice on the part of the Salvation Army or Chris Flanagan.
I find that the Salvation Army was negligent in the supervision of Gregory Peters when children, who came to the camp for one week, started to calling him gay. When he had an anxiety attack, these things should have put the Salvation Army on notice that Mr. Peters needed closer supervision.
But whether this amounts to gross negligence, gross negligence is the intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another.
Whether the Salvation Army intentionally failed to supervise Gregory Peters, this Court did not find any intentional acts on the part of the Salvation Army up to the time of this incident.
This Court finds that the Salvation Army could have and should have done more after learning of the incidents, after learning of the incident, but this does not go to the issue of punitive damages in that this is actions that was taken [sic] by the Salvation Army after the incident. This Court must only consider the actions of the Salvation Army that led up to the incident that caused harm to the plaintiffs. Hopefully, this matter and the courage of these four young men will result in incidents like this not occurring in the future, and that the Salvation Army will take a stronger responsibility in supervising their employees. Therefore, this Court finds that this is not a case for punitive damages, and the issue will not be submitted to the jury.

¶ 4. On July 11, 2001, a motion for new trial was filed by the Does. An amended motion for new trial was filed on August 1, 2001. On August 28, 2001, a hearing was held on the motions for punitive damages. The trial court ruled that it stood by the former ruling “that The Salvation Army was negligent and not grossly negligent, which is necessary in order for this matter to be presented to the jury on the issue of punitive damages.” The trial court then denied the motion for new trial on the issue of punitive damages. On September 13, 2001, the trial court judge entered an order denying both the motion for new trial and the amended motion for new trial. On October 4, 2001, a notice of appeal was filed by the Does to this Court raising the sole issue of punitive damages.

¶ 5. This Court finds that the trial court ruling denying the submission of the punitive damages issue to the jury should be affirmed.

STATEMENT OF THE ISSUE

Whether the trial court erred by refusing to submit the issue of punitive damages to the jury and denying the motion for new trial on the issue of punitive damages?

DISCUSSION

¶ 6. In Alpha Gulf Coast, Inc. v. Jackson, this Court set forth the standard for punitive damages as follows:

The applicable Mississippi statute concerning punitive damages is § 11-1-65. This statute states in part the following:
(1) In any action in which punitive damages are sought:
(a) Punitive damages may not be awarded if the claimant does not prove by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.
(b) In any action in which the claimant seeks an award of punitive damages, the trier of fact shall first determine whether compensatory damages are to be awarded and in what amount, before addressing any issues related to punitive damages.
(c) If, but only if, an award of compensatory damages has been made against a party, the court shall promptly commence an evidentiary hearing before the same trier of fact to determine whether punitive damages may be considered.
(d) The court shall determine whether the issue of punitive damages may be submitted to the trier of fact; and, if so, the trier of fact shall determine whether to award punitive damages and in what amount
Miss.Code Ann. § 11-1-65 (Supp.2001) (emphasis added). The statute and case law specifically give the court the authority to initially determine whether the particular facts of a case merit the submission of the issue of punitive damages to the jury. Id. Miss Code Ann. § 11—1—65(1)(d) (Supp.2001). In Ross-King-Walker, Inc. v. Henson, this Court held the following:
In determining the propriety of submitting the issue of punitive damages to the jury, the trial court decides whether, under the totality of the circumstances and viewing the defendant’s conduct in the aggregate, a reasonable, hypothetical trier of fact could find either malice or gross neglect/reckless disregard. Ross-King-Walker, Inc. v. Henson, 672 So.2d 1188, 1191 (Miss.1996). See also Summers v. St. Andrew’s Episcopal Sch. Inc., 759 So.2d 1203, 1215 (Miss.2000); Wallace v. Thornton, 672 So.2d 724, 728 (Miss.1996); Thomas v. Harrah’s Vicksburg Corp., 734 So.2d 312, 322 (Miss.Ct.App.1999). Clearly, the trial court is the gatekeeper for the issue of whether punitive damages, in cases involving both intentional and non-intentional torts, should be submitted and considered by a jury. [FN1]
Punitive damages are assessed in extreme cases and are intended to be an example and warning to others. Wallace, 672 So.2d at 728. “However, there is no right to an award of punitive damages and such damages are to be awarded only in extreme cases.” South Central Bell v. Epps, 509 So.2d 886, 892 (Miss.1987). This Court held that a plaintiff can recover punitive damages only if there is a demonstrated willful or malicious wrong or if there is gross, reckless disregard for the rights of others. Boling v. A-1 Detective & Patrol Serv., Inc., 659 So.2d 586, 588 (Miss.1995).

Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 709, 732-33 (Miss.2001)(emphasis added) & (footnote omitted).

¶ 7. There is no right to punitive damages. S. Cent. Bell v. Epps, 509 So.2d 886, 892 (Miss.1987). See also Aqua-Culture Techs., Inc. v. Holly, 677 So.2d 171, 184 (Miss.1984). Rather, the statute clearly states that if certain criteria are met then the court determines whether the issue of punitive damages may be submitted to the trier of fact. Miss.Code Ann. § ll-l-65(1)(d) (Rev.2002).

¶ 8. The Does argue that the issue of punitive damages should have been submitted to the jury. The argument is based in part upon their belief that the trial court failed to consider whether punitive damages should have gone before the trier of fact on the theory of vicarious liability and for TSA’s own conduct. They claim that punitive damages are recoverable in situations involving proven assault. They further claim that the issue of punitive damages against an employer is properly submitted to a jury for consideration when intentional acts have been committed by its agent. The Does rely upon Jordan v. McKenna, 573 So.2d 1371 (Miss.1990); Anderson v. Jenkins, 220 Miss. 145, 70 So.2d 535 (1954); Barnes v. Town of Burnsville ex rel. Till, 385 So.2d 623 (Miss.1980); and Gill v. L.N. Dantzler Lumber Co., 153 Miss. 559, 121 So. 153 (1929).

¶ 9. In Jordan, a rape victim was awarded punitive damages. Jordan, 573 So.2d at 1378. Likewise in Anderson, a teenager who lost an eye during a conflict was awarded punitive damages. Anderson, 220 Miss, at 154-55, 70 So.2d at 540. This Court in Barnes affirmed an award of punitive damages against a police officer who followed through with a previous threat of dragging a driver out of his car and knocking him in the head the next time the driver was stopped for speeding. Barnes, 385 So.2d at 624. In each of the cases in which the Does rely for authority, the person that assaulted the plaintiffs was found liable for punitive damages. Certainly, these cases are instructive as whether the issue of punitive damages may be given to the trier of fact to consider against the assaulter, Peters. However, each of these cases is distinguishable from the case sub judice because none of them found an employer liable for the punitive damages as the result of an employee’s acts.

¶ 10. The Does also cite Dantzler claiming that the issue of punitive damages against an employer can be submitted to the jury when an employee commits an intentional tort. However, a careful review of Dantzler reveals that the issue of punitive damages was not raised by any party, and consequently it was appropriately never addressed by this Court. The Does correctly cite Dantzler for the proposition that a master who places a servant in a position of trust or authority is responsible for the actions of his servant. Dantzler, 121 So. at 156. In fact, in Dantzler, a business was sued for the actions of its employee. Id. Nevertheless, Dantzler does not reach the issue of punitive damages and is not persuasive.

¶ 11. The jury did find that TSA was 85% liable for the actions of its employee, Peters. As a consequence, the Does have received an award of $120,000.00 in total compensatory damages. Of the compensatory damages awarded the Does, Flanagan is obligated to pay 10 % and TSA 85% of the total award. Accordingly, TSA has shouldered 85% of the liability for the actions of its employee, Peters. Flanagan has shouldered 10% liability for being the camp officer. However, liability for compensatory damages does not signify that punitive damages must be assessed against an employer. In fact, punitive damages are never automatic. See Miss.Code Ann. § 11-1-65.

¶ 12. The Does further rely upon Duggins v. Guardianship of Washington, 632 So.2d 420, 430 (Miss.1993), and Independent Life & Ace. Ins. Co. v. Peavy, 528 So.2d 1112 (Miss.1988), for the rule that a principal can be held liable for the acts of its agent and any associated punitive damages. In Duggins a law partner was held vicariously liable for the actions of an attorney with whom he associated pursuant to the Uniform Partnership Act (UPA). Duggins, 632 So.2d at 427-28. This Court determined that the handling of client funds was within the scope of a lawyer’s legal representation and in furtherance of the partnership. Id. at 428. This Court also stated that “[s]pecifically, § 79-12-27 of the UPA imposes a liability on a partner to make good a loss of another partner’s actions when acting with the scope of the partnership.” Id. at 430. Ultimately, this Court found that punitive damages could be assessed against Duggins for the actions of his partner. Id. at 430.

¶ 13. In Peavy, conflicting evidence indicated that insurance agents persuaded an insured to withhold filing a claim. Peavy, 528 So.2d at 1115. Peavy was injured and totally disabled for a period of time. Id. at 1113. The insurance policy provided that the insured notify the company during the period of total disability in order to collect the benefits. Id. Conflicting testimony indicated that Peavy was in the process of filing a claim when two agents went to his home and allegedly persuaded him not to file the claim at that time. Id. at 1114. Because the insured relied upon the advice of the agents and filed at a later time, the insurance company denied the insured’s claim for among other things, the failure to timely file the claim. Id. at 1115. This Court reviewed the conduct of the company and not the actual denial of the benefits. Id. This Court stated that “[b]y thus ‘sandbagging’ Peavy, Watson and Davis effectively manufactured the arguable reason which Independent Life would later use to deny Peavy’s claim.” Id. This Court upheld the punitive damages awarded at the trial level. Id. at 1116. The Court reasoned that the misrepresentations of the agents “constituted either an intentional wrong or such gross negligence as to evidence reckless disregard for Peavy’s rights.” Id.

¶ 14. Both Duggins and Peavy involved actions within the scope of a partnership and within employment as an insurance agent. The cases were within the parameters of the Uniform Partnership Act and insurance contract law, and not within the confínes of an assault. In Duggins, the attorney’s actions were determined to be within the confines of employment and the UPA. The UPA specifically provided for partner’s being liable for another partner’s actions when done in the scope of the partnership. In Peavy, the actions of the agents and the alleged advice given actually aided the insurance company to have a reason to deny coverage. Thus, the insurance company had a benefit from the agents’ acts, in that the company had a reason to deny Peavy benefits.

¶ 15. This Court addressed scope of employment in a general context and not in terms of punitive damages:

Where the servant, in committing the wrongful deed, acts about the master’s business for which he is employed, the master is liable, although in doing the act, the servant stepped beyond his authority. Even though the conduct of the servant was unauthorized, it is still in the scope of his employment, if it is of the same general nature of, or incidental to, the conduct authorized. In order for the master to escape liability, it must be shown that the servant, when the wrongful act was committed, had abandoned his employment and gone about some purpose of his own not incident to his employment.

Horton v. Jones, 208 Miss. 257, 259-60, 44 So.2d 397, 399 (1950) (citations omitted).

¶ 16. In the punitive damage context, Miss.Code Ann. § ll-l-65(l)(a) requires that a claimant must prove by “clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.” (emphasis added).

¶ 17. When deciding whether to submit the issue of punitive damages to a trier of fact, the trial court looks at the totality of the circumstances to determine if a reasonable, hypothetical trier of fact could find either malice or gross neglect/reckless disregard. Ross-King-Walker, Inc. v. Henson, 672 So.2d 1188, 1191 (Miss.1996). An abuse of discretion standard is implemented when this Court reviews the trial court’s decision of whether a case warrants punitive damages to be sent to the trier of fact. Hurst v. Southwest Miss. Legal Servs. Corp., 708 So.2d 1347, 1351 (Miss.1998). After reviewing the evidence, the trial court found no actual malice, no intentional acts and no gross negligence by TSA. The trial court also denied the motions for new trial based upon a determination of no gross negligence.

TSA

¶ 18. When looking at the totality of the circumstances, a reasonable, hypothetical trier of fact could not find either malice or gross neglect or reckless disregard by TSA. TSA is a Christian organization that promotes the Scriptures and God, not sexual assault on minors. Peters was clearly not acting within the scope of his employment with TSA at the time of the assault. The case sub judiee is distinguishable from Duggins and Peavy. In Duggins, the Court found that the attorneys associated as equal partners for the guardianship case. Duggins, 632 So.2d at 426. Duggins initiated the partnership on the case with Barfield in order to have assistance on a medical malpractice case associated with the guardianship. Id. The Court also held that “[b]oth attorney’s had an equal stake in the case and depended upon each other’s abilities in proceeding with the case.” Id. The UPA, also, had specific statutory guidelines which holds a partner liable for the acts of a partner. In addition, this Court held that Barfield’s acts were committed while in furtherance of the partnership and that the handling of client funds was within the confines of the partnership. Id. In Peavy, the insurance company initially profited by the alleged actions of its agents. The company bene-fitted by the agents’ alleged actions which caused a valid reason to deny Peavy’s claim for total disability.

¶ 19. In the case sub judice, this Court finds that it cannot be said that Peters’s actions were within the scope of his employment as a counselor. Nor can it be held that TSA had any benefit by Peters’s actions. In fact, Peters’s actions have not helped TSA in any way, rather, it has cast a negative cloud over the whole situation and has arguably hurt TSA’s standing. Assaulting young boys has nothing to do with the goals and doctrines of TSA and its Christian philosophy. While TSA employed Peters, his acts only benefitted his own desires, and his association with TSA in no way promoted or benefitted the TSA organization.

¶ 20. Furthermore, in the record excerpts provided to this Court for review, there is no indication that TSA had any notice of any of these acts until after the boys left the camp. The limited deposition testimony of Peters cited in the record, at best, indicated that while he did tell some of his friends who were staff members of his gay or bisexual tendencies, Peters did not inform the unit director or anyone with a military designation. What is more, the jury made no determination that TSA knew or should have known of any alleged sexual tendencies. There was no clear and convincing evidence that TSA acted with actual malice or gross negligence. Accordingly, the trial court did not abuse its discretion by declining to submit to the jury the issue of punitive damages against TSA.

CONCLUSION

¶ 21. This Court finds that the Holmes County Circuit Court did not err in refusing to submit the issue of punitive damages to the trier of fact. Therefore, the circuit court’s judgment is affirmed.

¶ 22. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB AND CARLSON, JJ., CONCUR. DIAZ AND GRAVES, JJ., CONCUR IN RESULT ONLY. McRAE, P.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . Peters was criminally charged with sexual assault by the State of Mississippi. After the conclusion of the civil trial, on October 9, 2001, Peters pled guilty to the charges before the Holmes County Circuit Court. Following the plea, the circuit judge sentenced Peters.


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Catherine Watts SCOTT, Appellant, v. Leroy SCOTT, Appellee.
    No. 2001-CA-00179-COA.
    Court of Appeals of Mississippi.
    June 11, 2002.
    Rehearing Denied Sept. 3, 2002.
    Certiorari Denied Jan. 16, 2003.

      Jessie L. Evans, Canton, attorney for appellant.
    Reeves Jones, Jackson, attorney for ap-pellee.
    Before McMILLIN, C.J., BRIDGES, and IRVING, JJ.
   IRVING, J.,

for the court.

¶ 1. Catherine Watts Scott appeals from an amended final judgment of divorce rendered by the Chancery Court of Madison County, Mississippi, which changed the division of marital property between her and Leroy Scott, her ex-husband. She does not challenge the granting of the divorce. However, she raises two property-related issues: (1) whether the lower court abused its discretion and committed manifest error in dispossessing her of the marital domicile and (2) whether the lower court made an equitable distribution of the marital assets.

FACTS

¶2. On October 26, 2000, the twenty-five-year marriage of Catherine and Leroy Scott came to an end when a final judgment of divorce was entered by Chancellor William J. Lutz. Leroy was not present for the divorce hearing which was held two days prior to the judgment being entered.

¶ 3. The final judgment awarded a divorce to Catherine on the ground of habitual cruel and inhuman treatment. Also, she was awarded exclusive ownership and possession of the marital residence, two acres of land inherited by Catherine from a relative on which the marital residence was located, furniture and furnishings within the home, title and exclusive possession of a 1979 Cadillac, reimbursement in the amount of $1,500 for clothing destroyed by Leroy, and $150 reimbursement for appraisal of the marital home. Leroy was awarded exclusive possession and ownership of his American Express Mutual Fund and exclusive possession and ownership of 10.1 acres of land in Madison County.

¶ 4. Thereafter, Leroy filed a motion to set aside judgment and set trial date. Affidavits were filed by Leroy’s original attorney explaining that the attorney did not receive an order of continuance and was unaware of the October 2000 hearing. On December 4, 2000, Leroy’s new attorney and Catherine’s attorney reached an agreement which provided that the court would set aside only those parts of the final judgment for divorce pertaining to the property of the parties and that those issues would be tried at a later date.

¶ 5. The hearing to address the property division occurred on January 16, 2001. Prior to the hearing, both parties submitted financial statements as required by Rule 8.05 of the Uniform Chancery Court Rules. Catherine’s statement showed her sole monthly income as $378 for Social Security. Her total monthly living expenses were listed at $474.88; her assets were listed as real estate (the marital domicile) at $40,000, and furniture and appliances at $10,000, for a total of $50,000. Leroy’s statement showed his net monthly income as $574 and his monthly living expenses as $570. Listed assets were real estate (the marital home) at $20,000, 10.1 acres of land in Madison County at $5,050, 1979 Cadillac at $1,000,1978 Buick at $900, 1970 Dodge at $800, shotgun at $50, pistol at $30, lawn mower at $100, T.V. at $130, furniture at $500, and American Express Mutual Fund at $11,000, for a total of $39,560. At the time of the hearing, both parties’ income had increased since the disclosure of their financial statements. Catherine was receiving $449 a month in disability, and Leroy was receiving $1,100 a month from employment. Also, it was determined that Leroy’s American Express Mutual Fund had appreciated in value to $12,000. An appraisal of the marital home placed the value of the home at $22,000. The chancellor did not do an evaluation of the marital estate or indicate which of the parties’ evaluations he considered credible.

¶ 6. After the hearing, the chancellor entered an amended final judgment of divorce. In the amended final judgment, Leroy was awarded exclusive ownership and possession of the parties’ marital residence, one half of his American Express Mutual Fund, exclusive ownership of all personal property outside the home including the lawnmower and all of the automobiles. He was also given the following additional items: his guns, tools, clothes, an armoire where his clothes were located, one bed, the kitchen table and chairs, a reasonable amount of linen, towels, cookware and the second best set of plates and glasses. Catherine was awarded the sum of $9,840 for her share of the equity in the marital residence plus $1,000 for the value of the two-acre lot which Catherine brought into the marriage. Catherine was also awarded one half ($6,000) of Leroy’s American Express Mutual Fund and all personal property inside the marital residence except that which was given to Leroy. Finally, the chancellor ordered that all findings of fact, conclusions of law, and orders of the court contained in the original final judgment of divorce entered on October 26, 2000, and consistent with the amended final judgment, would remain in full force and effect.

ANALYSIS AND DISCUSSION OF ISSUES

Equitable Division of the Marital Estate

¶ 7. Although Catherine asserts two issues, both of them concern the manner in which the chancellor divided the property; therefore, this Court will collapse these issues and address them as equitable division of the marital estate. This Court will not reverse a chancellor’s findings unless they are manifestly wrong, clearly erroneous or an erroneous standard is applied. Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997). When reviewing a chancellor’s findings, this Court employs a limited standard of review. Id. This Court looks to the chancellor’s application of the Ferguson factors when reviewing questions of equitable distribution. Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994).

¶ 8. The Ferguson factors are: (1) substantial contribution to the accumulation of the property. Under this factor, the chancellor should consider (a) the parties’ direct or indirect economic contribution to the acquisition of the property, (b) the parties’ contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties, and duration of the marriage, and (c) the contribution to the education, training or other accomplishments by the other spouse bearing on the earning power of the spouse accumulating the assets; (2) the degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise; (3) the market value and the emotional value of the assets subject to distribution; (4) absent equitable factors to the contrary, the value of assets not ordinarily subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse; (5) tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution; (6) the extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties; (7) the needs of the parties for financial security with due regard to the combination of assets, income and earning capacity, and (8) any other factor which in equity should be considered. Ferguson, 639 So.2d at 928.

¶ 9. The chancellor assessed the Ferguson factors in the following manner: (1) Substantial Contribution to the Accumulation of the Property. The chancellor determined that Leroy’s paycheck had always been the primary paycheck, that Catherine had brought into the marriage two acres which she had inherited and that she would be given the value of them. Also, he determined that the 10.1 acres was Leroy’s separate estate and that both parties had made a substantial contribution to the house and $12,000 in savings. (2) Direct or Indirect Economic Contributions to the Acquisition. The chancellor determined that both parties contributed. He determined that the parties’ contribution was equal because “[wjhatever money they had coming in either went to feed and clothe the family and pay for the mortgage, or it went into savings.” Therefore, there should be an equal distribution. (3) Stability and Harmony of Marital Relation. The chancellor determined that there was nothing to consider. (4) Contributions by the Other Spouse Affecting the Earning Power of the Spouse Accumulating the Assets. The chancellor noted that no evidence was introduced pertaining to this factor. (5) Degree Each Spouse Has Expended, Withdrawn or Disposed of Marital Assets and Any Prior Distribution of Such Assets. The chancellor took note of the period when Mrs. Scott moved a family in the home and collected rent. He assumed she spent the rent on herself. However, whatever was received, the chancellor did not consider it to be substantial. .(6) Market Value and Emotional Value of Assets. The chancellor stated that the house was moved onto the property, that he was aware of what it cost then, that the value of the land was known and that there was “some evidence that Leroy put in some time and some money, as time went by, to improve the house and land.” The chancellor did not comment on the emotional value of the home to Catherine even though the land on which it sits was inherited from Catherine’s family and is located in the area where some members of Catherine’s family reside. (7) The Extent to Which Property Division, with Equity to Both Parties Be Utilized to Eliminate Periodic Payment. The chancellor simply stated, “We will do that.” (8) The Need of the Parties for Financial Security. The chancellor noted that neither party was well-off but that Leroy still had the ability to work and Catherine was on a fixed income. (9) Any Other Factor. The chancellor noted that Mrs. Scott had been living with her sister for over a year.

¶ 10. We first observe that the largest and most valuable pieces of property consisted of three items: the marital home, the $12,000 saving account, and the 10.1 acres of land. As stated, the land upon which the marital home rests was inherited by Catherine prior to the parties’ marriage. Also, prior to the marriage, Catherine purchased the house (which became the marital domicile) and had it moved onto the two-acre tract. We further note that the chancellor did not evaluate the marital estate or indicate which of the parties’ valuation he considered most reliable. In this regard, we observe a huge difference between Catherine’s and Leroy’s assessed value for the contents of the home. Leroy placed a value of $500 on the furniture, and Catherine placed a value of $10,000 on the furniture and appliances. Additionally, Leroy assessed a value to other personal property while Catherine did not.

¶ 11. Catherine argues that she should have been awarded the marital home because the land on which the home sits was inherited by her and she paid the mortgage, without the assistance of Leroy, which she incurred as a result of purchasing the house which was placed on the lot. Furthermore, Catherine avers that her need for financial security is a Ferguson factor which was disregarded by the chancellor. Also, she argues that the chancellor focused on the fact that she was disabled in recent years and totally disregarded the fact that she made nearly all monetary contributions toward the mortgage and upkeep on the home prior to her becoming disabled. Catherine asserts that under Ferguson, the lower court should have considered that Leroy already had property and a mobile home on his property.

¶ 12. Catherine points out that she wanted only the marital home, not even a share of Leroy’s American Express savings or anything else. She argues that the chancellor failed to equitably divide the marital estate. She notes that in arriving at her half of the value, the chancellor subtracted a theoretical commission of six percent ($1,320) from the market value of the home ($22,000), leaving a net equity of $20,680. She asserts that this calculation was incorrect because the house was not sold. Thus, a commission should not have been subtracted. Secondly, Catherine claims that she is still due reimbursement in the amounts of $150 for an appraisal of the home and $1,500 for clothing destroyed by Leroy.

¶ IB. We determine that this case must be reversed and remanded for a number of reasons. As previously observed, the chancellor failed to evaluate the marital estate. It is impossible for this Court to perform its oversight responsibility in the absence of such a valuation, particularly since there is a $9,500 variance between the parties’ valuation of some of the personal property, viz, the furniture and appliances. Additionally, Catherine’s financial disclosure statement did not list the vehicles while Leroy’s listed a Cadillac, Buick, and Dodge at an aggregate value of $2,700. Again, the chancellor did not make any determination as to the value of these vehicles even though he gave all of them to Leroy. We also agree with Catherine that the chancellor should not have deducted a sales commission from the appraised value of the home since it was not being sold. Further, the value placed on the two acres of land was based on 1970s value. The record does not reflect any information regarding their current value. The appraisal of the home does not give separate values for the land and the improvements.

¶ 14. Since we are reversing and remanding this case for further consideration by the chancellor, we make some additional observations. First, as previously mentioned, the chancellor determined that the parties’ contribution to the acquisition of the marital property was equal. In reaching this conclusion, he discussed primarily the home. Yet, our review of the record does not support the chancellor’s finding that the parties’ contribution to the acquisition to the marital property was equal and that Leroy’s paycheck had always been the primary one. Although Catherine testified that she had been disabled since 1986, she gave uncon-tradicted testimony that she had worked full-time until her disability in 1986. Catherine testified that she paid the mortgage on the marital home. More importantly, the mortgage was paid in full in 1983, three years prior to the onset of Catherine’s disability, when her adult child gave her the money to pay the home off.

¶ 15. Second, the chancellor determined that Leroy had equity in the house because Leroy had put time and money in it. Although Leroy presented a few receipts, none of the receipts were dated later than 1980. We recognize that Catherine did not produce any receipts, but it was uncontradicted that she inherited the land, financed the home alone, and the title remained in her name until 1987. Moreover, Catherine’s testimony that her son gave her $1,000 to pay off the remaining balance of the mortgage was uncontra-dicted Although Leroy testified that he helped to pay the mortgage, he was unable to remember how much the mortgage payments had been. He testified that he did not keep up with amounts paid because he sometimes paid half and always gave Catherine cash.

¶ 16. Third, under the “financial security” factor, the chancellor correctly noted that neither party was well-off but Leroy still had the ability to work. The chancellor explained that he believed Catherine would eventually lose the home due to her low income, and this appeared to be one of his primary reasons for awarding the house to Leroy. However, the mortgage on the home was fully paid. Additionally, according to the uncontradicted testimony of Catherine, her children routinely send her money and purchase clothes for her.

¶ 17. The chancellor took a home with a fully paid mortgage from Catherine, whom the chancellor noted was unable to work, and gave it to Leroy who had almost three times her income. Lastly, in considering the “any other factor,” the chancellor examined the fact that Catherine had been living with her invalid sister for over a year. The chancellor explained that Catherine could continue to live with her sister but that Leroy did not have anywhere to go. Yet, the chancellor failed to consider that Leroy owns 10.1 acres of land and a mobile home, both of which could be utilized by Leroy.

¶ 18. Finally, we note that whether Catherine could maintain upkeep on the home does not appear to us a valid consideration for failing to award the home to her if equity otherwise dictated such result. Yet that appears to be the chancellor’s overarching consideration in not awarding the home to Catherine. Also, it appears from the record that the chancellor viewed the fact that Catherine had spent some time caring for an invalid sister as irrefutable evidence that Catherine had some other place to live, a fact that is not borne out by the record. More importantly, the judge questioned whether Catherine could get the money to pay Leroy for his share of the marital home, as well as how soon she could move in if the home was awarded to her. Catherine stated that she could get the money from her children and be ready to move in as soon as the judge allowed. The judge had a problem with this explanation because if Catherine left her disabled, invalid sister with whom she has lived for the past year then the sister would be left alone. We fail to see how the sister’s well-being should have any impact on the equitable distribution of the marital estate. Moreover, according to Catherine, she did not leave the marital domicile to take care of an invalid sister. Rather, she asserts that she left the marital home out of fear for her life.

¶ 19. For the reasons above, we reverse and remand this case to the Chancery Court of Madison County for a complete evaluation of the marital estate and a reconsideration of the distribution of the estate, consistent with this opinion, following that evaluation. The grant of the divorce is not disturbed by this opinion as neither party raised it as an issue here.

¶ 20. THE JUDGMENT OF THE MADISON COUNTY CHANCERY COURT IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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

      . The marital home is located on this two-acre lot.

      . The child who gave her the money was a child she had before she met Leroy.

      . We recognize that Leroy did contradict her on the fact that he paid the mortgage also.


author: THOMAS, J,

text:
    UNITED PLUMBING & HEATING CO., INC., Appellant v. Willie MOSLEY d/b/a Mosley Masonry, Appellee.
    No. 2001-CA-01671-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2002.

      Suzanne N. Saunders, Jackson, Stephanie Anne Taylor, attorneys for appellant.

      James W. Newman, III, Jackson, James D. Kopernak, attorneys for appellee.
    Before SOUTHWICK, P.J., THOMAS and CHANDLER, JJ.
   THOMAS, J,

for the Court.

¶ 1. United Plumbing & Heating Co., Inc. (United) was a general contractor for a construction project on the McCoy Federal Building in Jackson, Mississippi. Willie Mosley contracted with United for his company to lay block on the project. When Mosley and his crew arrived to begin laying block, the project was not ready for Mosley to begin. United agreed to pay Mosley and his crew in order to keep them on site so that they could begin laying block as soon as the project was ready. This led to a dispute over how much was owed to Mosley for this down time. Mosley filed suit in county court and received a judgment in his favor. United appealed to the Circuit Court of Hinds County, which affirmed the county court’s award. Aggrieved, United asserts the following issues:

I. THE COUNTY COURT ERRED IN FAILING TO SUSTAIN THE OBJECTION MADE BY UNITED TO THE NEW LINE OF EXAMINATION DURING PLAINTIFF’S CASE IN REBUTTAL, WHICH ALLOWED NEW MATTERS INTO EVIDENCE UNCONTESTED.
II. THE COUNTY COURT ERRED IN FAILING TO DIRECT A VERDICT IN FAVOR OF UNITED AND IN FAILING TO AWARD MOSLEY A SUM NOT EXCEEDING $1,804.95.
III. THE COUNTY COURT ERRED BY ENTERING ITS JUDGMENT IN FAVOR OF MOSLEY FOR THE AMOUNT OF $5,648.80, PLUS REASONABLE
ATTORNEY’S FEES OF $1,882.93.
IV. THE COUNTY COURT ERRED BY DENYING UNITED’S MOTION TO SET ASIDE THE FINAL JUDGMENT AND ENTER A CORRECT FINAL JUDGMENT, OR IN THE ALTERNATIVE GRANT A NEW TRIAL.
V. THE VERDICT OF THE COUNTY COURT AND AFFIRMATION BY THE CIRCUIT COURT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

Finding error, we reverse and remand.

FACTS

¶ 2. General Services Administration (GSA) hired United Heating and Plumbing, Inc. to serve as general contractor for a project including construction of two new jail cells for the Immigration and Naturalization Service at the McCoy Federal Building in Jackson, Mississippi. United subcontracted with Willie Mosley’s company, Mosley Masonry, to lay blocks for the holding cells. The agreed price was $6.50 per block. Mosley and crew arrived to begin work on August 20, 1997, but the site was not ready for them to begin, and they were asked to return in one week. On August 27, Mosley and crew arrived at the site and were again told that the site was not ready for them to begin. Instead of negotiating a new starting date, a deal was made to compensate Mosley’s crew to remain on the job site until it was ready for block laying. It is this deal that is in dispute.

¶ 3. In order to keep Mosley and his crew on the job site, United agreed to compensate Mosley for reasonable costs plus labor burden and profii/overhead. Specifics were not discussed. Mosley tes-tilled that he made the agreement with Homer Thomas, co-owner of United. However, Maurice Thomas, another co-owner of United, testified that it was he who made the agreement with Mosley. Maurice also testified that it was not necessary for Mosley and his crew to actually work during the down time, but that they were being compensated simply to remain on the job site and not take another job at another location. Mosley and his crew did work, however, helping to perform some demolition work, hauling materials for the block laying into better position, hauling away some trash, and helping hang sheet-rock. This took place for three full days, August 27, 28, 29, and a partial day on September 1. Since September 1 was a holiday, it was agreed that they would receive double time for their hours on that day.

¶ 4. There is a disagreement regarding exactly how many days Mosley’s crew had to wait before they began laying block. Based on Maurice Thomas’s records and memory, United claims that Mosley’s crew began laying block on the outside perimeter walls on the next two days, September 2 and 3, and began laying blocks for the jail cells on September 4. United asserts that the blocks laid around the perimeter are included in Mosley’s contract for $6.50 per block. Mosley turned in a bill requesting payment for down time for all six days through and including September 3, after which he began laying blocks on the jail cell as the original agreement had specified. At trial, however, when asked by the judge, Mosley testified that he began laying blocks on Wednesday, September 3. It is not clear from the record whether Mosley was referring to the blocks around the perimeter walls or in the jail cells.

¶ 5. Mosley and United also disagree about the computation of the payment due under the cost plus agreement. United believed the agreed price was Mosley’s payroll plus 22.8 percent labor burden and 25 percent profit and overhead. Mosley believed he was entitled to 42 percent labor burden and 15 percent profit. Mosley claims that he used United’s percentage values in order to calculate the bill he sent to them. However, Mosley requested an hourly wage rate for himself which United argues is improper. According to United, Mosley is paid out of the 25 percent profit and overhead addition and that it is not industry custom for a subcontractor to receive his negotiated profits and an hourly wage. Mosley testified that although he was not on site the entire time, he was hauling equipment and supplies to the work site and that he performed valuable services that justified an hourly rate. This led to another dispute regarding overtime on the weekend of September 13 and 14, when Mosley’s crew was allowed overtime pay on top of their per block contracted price. Mosley again billed an hourly rate for himself which United disputes.

¶ 6. Mosley received payment in the amount of $11,744. An additional check for $1,804 was tendered to Mosley for payment in full but he refused to accept it. It is unclear from the record exactly how United arrived at this figure. Maurice Thomas testified that he did not include an hourly rate for Mosley, nor did he include the two days in dispute, September 2 and 3, when Thomas recorded that Mosley’s men began laying block. However, when Thomas’s calculations are repeated, the amount still owed to Mosley is $2,173.25. In its brief, United provides eight “conceivable methods” for calculating the amount owed to Mosley. These amounts vary from a high of $4,575.44, where United used Mosley’s percentage figures for labor burden and profit/overhead, allowed Mosley an hourly wage, and allowed September 2 as down time, to a low of $2,173.25, figured in what appears to be the method used by Maurice Thomas. It is noted that $1,804 was not arrived at in any of the eight “conceivable methods.”

¶ 7. Mosley brought suit in Hinds County Circuit Court for $5,648.80, which he claims to be the amount due using United’s percentages for the cost plus calculations. Mosley arrived at his calculation by totaling up his time sheets, including an hourly wage for himself and including both disputed days. He then multiplied this total by United’s percentages for labor burden and profit/overhead. It was pointed out in the record that Mosley made an error in figuring the amount of overtime for the workers on September 1. Mosley billed double time for the workers for the full eight hours, although the time sheet clearly states that the workers worked only five hours on that day. Nevertheless, the Hinds County Court, without findings of fact or conclusions of law, awarded Mosley the full $5,648.80 requested. United appealed, and the Circuit Court of Hinds County affirmed the judgment, again without findings of fact or conclusions of law. United perfected an appeal to this Court.

ANALYSIS

I. DID THE COUNTY COURT ERR IN FAILING TO SUSTAIN THE OBJECTION MADE BY UNITED TO THE NEW LINE OF EXAMINATION DURING PLAINTIFF’S CASE IN REBUTTAL, WHICH ALLOWED NEW MATTERS INTO EVIDENCE UNCONTESTED?

¶ 8. Although United lists the county court’s failure to sustain the objection made by United during Mosley’s case in rebuttal in its assignments of error, it failed to address this issue in its brief and did not provide any argument or authority in support of it. It is their duty “to provide authority in support of an assignment of error.” McNeil v. Hester, 753 So.2d 1057, 1075 (¶ 65) (Miss.2000) (citing Hoops v. State, 681 So.2d 521, 526 (Miss.1996); Kelly v. State, 553 So.2d 517, 521 (Miss.1989); Smith v. State, 430 So.2d 406, 407 (Miss.1983); Ramseur v. State, 368 So.2d 842, 844 (Miss.1979)). Failure to cite any authority is a procedural bar, and this Court is under no obligation to consider the assignment. Powell v. Cohen Realty, Inc., 803 So.2d 1186, 1190 (¶5) (Miss.Ct.App.1999); Collier v. McCain, 742 So.2d 1202, 1204 (¶ 10) (Miss.Ct.App.1999) (citing Williams v. State, 708 So.2d 1358, 1360 (Miss.1998)).

¶ 9. Even if we were to disregard the procedural bar for lack of authority, we would find no error. The time and manner of introducing evidence is committed to the sound discretion of the trial judge. Deas v. Andrews, 411 So.2d 1286, 1291 (Miss.1982) (citing Winterton v. Illinois Cent. R.R., 73 Miss. 831, 836, 20 So. 157, 158 (1896)). This Court will not reverse unless the exercise of discretion appears arbitrary, capricious or unjust. Id. In the case at hand, Willie Mosley was recalled to the stand in rebuttal in order to clear up with whom he felt the contract had been made. Maurice Thomas had testified for United that it was he that made an agreement with Mosley. Mosley testified in rebuttal that it was Maurice’s brother Homer whom he had dealt with and not Maurice. The trial court’s decision to allow this testimony was not arbitrary, capricious, or unjust. This issue is without merit.

II. DID THE COUNTY COURT ERR IN FAILING TO DIRECT A VERDICT IN FAVOR OF UNITED AND IN FAILING TO AWARD MOSLEY A SUM NOT EXCEEDING $1,804.95?

III. DID THE COUNTY COURT ERR BY ENTERING ITS JUDGMENT IN FAVOR OF MOSLEY FOR THE AMOUNT OF $5,648.80, PLUS REASONABLE ATTORNEY’S FEES OF $1,882.98?

IV. DID THE COUNTY COURT ERR BY DENYING UNITED’S MOTION TO SET ASIDE THE FINAL JUDGMENT AND ENTER A CORRECT FINAL JUDGMENT, OR IN THE ALTERNATIVE GRANT A NEW TRIAL?

V. WAS THE VERDICT OF THE COUNTY COURT AND AFFIRMATION BY THE CIRCUIT COURT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 10. In its brief, United fails to follow its own issues listed above. Instead, they argue that Mosley failed to prove a contract was formed because price, as an essential term, was not sufficiently definite. Alternately, United argues that if a contract was formed, Mosley failed to prove his actual labor costs and he incorrectly calculated the amount still outstanding. Based on these factors, United argues that the judgment in favor of Mosley was against the overwhelming weight of the evidence and that a new trial should be granted.

¶ 11. In any case where a trial court’s ruling is to be reviewed, we follow the same path each time. “This Court will always review a chancellor’s findings of fact, but the Court will not disturb the factual findings of a chancellor when supported by substantial evidence unless the Court can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard.” Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996) (citing Smith v. Dorsey, 599 So.2d 529, 533 (Miss.1992)). “[A] finding of fact is clearly erroneous when: although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made.” Cooley v. Merrell, 788 So.2d 840, 841 (¶3) (Miss.Ct.App.2001) (citing Heidel v. State, 587 So.2d 835, 839 (Miss.1991)). A county judge sitting as a finder of fact is no different than a chancellor.

¶ 12. In accordance with this standard of review, this Court may not overturn the decision of the trial judge unless, after looking at the record as a whole, we find that his decision was not supported by substantial evidence. Murphree v. W.W. Transp., 797 So.2d 268, 272 (¶ 11) (Miss.Ct.App.2001). Without findings of fact or conclusions of law, it is difficult for this Court to determine how the trial court arrived at its decision to award Mosley the full amount he requested plus reasonable attorney’s fees and interest, even when it appears in the record that the court knew that Mosley had incorrectly calculated the overtime hours on September 1. This error, charging double time for eight hours rather than five for the men who worked on September 1, amounts to $660.05, if Mosley is not entitled to an hourly wage, and $921 if Mosley is entitled to an hourly wage. Lacking an explanation of the reasoning behind awarding Mosley the full amount despite this error in calculation, the trial court erred in awarding Mosley $5,648.80 because it is not supported by the evidence.

¶ 13. The record is not clear, and it is not this Court’s position as a reviewing court limited to the facts and evidence provided to it to determine how much United owes Mosley. Murphree, 797 So.2d at 273 (¶ 12). It is undisputed that United does owe Mosley for the down time accumulated while working on the McCoy Federal Building. Even if taken in a light most favorable to Mosley, it appears that due to his calculation error the amount requested and received was too large. We cannot assume that the trial court intended to award the amount requested, but overlooked the need for a correction. United’s brief appears to agree that the amount offered, $1,804, was too little.

¶ 14. Since we find that the evidence does not support the award of $5,648.80 that the trial court granted, but that the evidence does support some award, we reverse and remand to the trial court for further proceedings consistent with this opinion.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND APPELLEE.

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


text:
    Robert MANNING, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00627-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2002.

      Phillip Broadhead, Jackson, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, P.J., LEE and IRVING, JJ.
   IRVING, J.,

for the court.

¶ 1. Robert Manning was convicted of murder and sentenced to life imprisonment by the Hinds County Circuit Court. In his appeal to this Court, he asserts the following assignments of error: (1) the State examined the venire to pledge a specific verdict, (2) the State was allowed to reopen voir dire to ask a question which commented upon Manning’s right to remain silent, (3) one of the State’s witnesses was allowed to give an improper lay opinion, (4) the trial court erred in refusing to grant an instruction on self-defense, (5) the prosecutor made an improper closing argument, and (6) the verdict was against the overwhelming weight of the evidence and insufficient as a matter of law.

¶ 2. Finding no reversible error, this Court affirms.

FACTS

¶ 3. Robert Manning and Louise Hilliard had lived together, off and on, for a number of years. On the day that Hilliard was killed, and prior to the discovery of her body, Manning voluntarily surrendered to authorities at the Jackson Police Department. He gave a taped confession in which he admitted shooting Hilliard but gave conflicting accounts of how the shooting occurred. At one point in the confession, Manning claimed to have acted in self-defense, while at another he claimed that Hilliard was shot accidentally as the two of them struggled for possession of the gun. The medical testimony contradicted both of these claims.

¶ 4. The medical testimony was that Hil-liard was shot twice. One bullet entered the rear of her right forearm, exited the front of her forearm, and lodged in her hip. The other bullet entered her back and lodged in her sternum. The gunshot to the back produced the fatal wound. Manning did not testify at trial.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Specific Verdict Pledge from the Ve-nire

¶ 5. Manning argues that the following questioning of the jury panel by the State was an improper jury examination, the aim of which was to extract a pledge from the venire to vote guilty even if the State failed to produce sufficient evidence to undergird a conviction:

PROSECUTOR WEINBERG: Is there anybody who would require the State before you could vote guilty in a murder case to produce eyewitnesses to what happened before you could vote guilty? The law doesn’t require me to do that, but would any of you require me to do that?
DEFENSE COUNSEL FORTNER: Objection, Your Honor. It’s not appropriate for the prosecutor to tell the jury what the law requires or does not require him to do. That’s a question for the Judge to instruct the jury on.
WEINBERG: May I rephrase Your Honor, to get their response to whether or not they would require more than — would require eyewitnesses, independent eyewitnesses, which is all I’m trying to do here?
THE COURT: All right. HL let you ask that one.
WEINBERG: Let me just make sure I get your responses if there are any. Is there anyone here — and I ask you to raise your hand, if you would — who would require me to produce independent eyewitnesses to what happened before you could vote guilty on a murder charge? If so, raise your hand, please.
j}: ‡ * * $
WEINBERG: Is there anybody here who feels like you would have to have some particular type of scientific proof that absolutely nails this case shut before you could vote guilty?
FORTNER: We’re going to object to that question, Your Honor. The Court is to instruct the jury on what proof is required and what elements are required. The jury can’t be placed in a position of making some promise about how they would render or reach a verdict or what evidence they would or would not require. That’s an improper question.
WEINBERG: Your Honor, it’s not improper to ask them about their attitude toward whether or not they would require scientific proof. Under De La Beckwith, that case that I’ve cited to Your Honor before, I’m entitled to ask that question.
THE COURT: All right. Overruled.

¶ 6. Manning argues that “the major problem presented by the [S]tate’s voir dire examination is that the persistent extraction of a pledge to find guilt without certain facts in evidence would tend to encourage jurors not to follow the instructions of the court.” A verdict, he claims, “could possibly be reached without the jury having followed the law of the case as instructed by the trial judge.” Manning further contends that the error committed by the trial court in allowing the State’s voir dire examination “is of constitutional dimension as it impacts on his fundamental right to a fair trial by a fair and impartial jury.” He argues that “prejudice must be presumed by a reviewing court and a harmless error beyond a reasonable doubt review should be accomplished.” This Court disagrees.

¶ 7. The standard of review for questions asked on voir dire is abuse of discretion. Hypothetical questions couched in the facts of the particular case asking the venire to pledge a specific verdict are impermissible. Harris v. State, 532 So.2d 602, 606, 607 (Miss.1988). The Mississippi Supreme Court has further instructed that:

Trial courts have a responsibility to control voir dire but in doing so they must take care not to hinder a full exploration of a juror’s predispositions, by hypothetical or otherwise. However, [t]he line between a proper and improper question is not always easily drawn; it is manifestly a process in which the trial judge must be given a considerable [amount of] discretion.

Evans v. State, 725 So.2d 613 (¶ 128) (Miss.1997) (citations omitted).

¶ 8. This Court held in Forbes v. State, 771 So.2d 942 (Miss.Ct.App.2000), that it was proper for the State to query prospective jurors about whether a defendant’s age would influence their verdict. We found that the prosecutor in that case only sought to highlight for the jurors the proper and improper considerations for determining guilt and innocence when it informed the jury that it would be improper to refuse to find guilt, despite being convinced beyond a reasonable doubt, because of sympathy for a teenaged defendant. Id. at (¶ 18). Similarly, our supreme court found no error occurred when the following question was permitted on voir dire:

With respect to the rape case, would the evidence for you to find somebody guilty of committing rape, would you require the State of Mississippi to prove or require that a victim come in here and say that she resisted until she was beaten to a bloody pulp and seriously injured before you could find someone guilty? We are talking about forcible rape here. I believe force is an element that we are going to have to prove. But would you require a victim resist until she is unconscious, fight and struggle dealing against overwhelming odds?

Simmons v. State, 805 So.2d 452, 504 (¶¶ 146-147) (Miss.2002).

¶ 9. We find that in the case at bar the State was not seeking to secure a pledge from the jurors that they would return a certain verdict given a certain set of facts. We find, instead, that the State was trying to ascertain: (1) whether the jurors could put aside the fact that there were no eyewitnesses to the shooting, and (2) whether they had any preconceived notions that a certain type of scientific evidence should be presented. There was no abuse of discretion. This issue has no merit.

2. Comment on Right to Remain Silent

¶ 10. The jury panel was asked the following question during Manning’s voir dire: “Mr. Manning is not required to testify; but if he does, is it anyone in here who would discredit his testimony before he even testifies and say that he’s on trial for his life, so he’s likely to say anything?” At the completion of Manning’s voir dire, the State asked that it be allowed to reopen voir dire to ask one additional question. The circuit court granted the State’s request, over objection by Manning, and the State posed the following:

During defense voir dire, Ms. Jackson asked you a question in which she prefaced it in terms of if the defendant were to testify. My question to you is if the defendant were to testify, would each of you agree to — whatever criteria you personally would apply^ — to weigh his testimony the same way you would weigh the testimony of any other witness? Is there anyone who would not do that? If so, raise your hand please.

¶ 11. The decision of whether to reopen voir dire is left to the discretion of the trial judge. Harrigill v. State, 381 So.2d 619, 623 (Miss.1980). Manning contends that the trial court abused its discretion in reopening voir dire because it “allowed the State to make what was tantamount to an impermissible comment on the defendant’s right to remain silent under the Fifth Amendment to the United States Constitution and under Article 3, Section 26 of the Mississippi Constitution.” We do not find that to be the case.

¶ 12. The question posed on reopening was simply an inquiry into whether the jury would give Manning’s testimony the same weight as any other witness’s testimony, should he decide to testify. We see nothing ominous in that. Finding no impropriety in the question and no abuse of discretion on the part of the trial court in allowing the State to reopen voir dire, we hold that this issue is without merit.

S. Lay Opinion

¶ 13. Richard Nations, the police detective who conducted the taped interview of Manning’s confession, testified as follows on cross-examination by defense counsel:

Q. Okay. But he answered all your questions.
A. Yes, sir.
Q. And I went through the statement while the tape was playing, just like everybody else in here did, and [he] pretty much tells the same story from start to finish, answers the questions pretty much the same way doesn’t he?

On redirect, the following occurred:

Q. Mr. Fortner asked you on cross-examination if the defendant told you pretty much the same story all the way through. Do you recall that question?
A. Yes, sir.
sfs * ❖ * ❖ *
Q. All right, sir. And is that the same story he kept all the way through or did he later—
FORTNER: We’re going to object, Your Honor. That invades the province of the jury. That’s what the jury has the statement for, so they can make those decisions.
WEINBERG: It’s a response to counsel’s question that he told the same story all the way through, Your Hon- or.
COURT: Overruled.
FORTNER: We object again. It invades the province of the jury. He’s asking the witness to determine what the facts are, not the jury. That’s what juries are for, Your Honor.
THE COURT: Overruled.
WEINBERG: (Continuing)
Q. Did he stick with that story all the way through?
FORTNER: Objection, Your Honor, to the form of the question.
THE COURT: Sustained as to the form of the question.
WEINBERG: (Continuing)
Q. Just tell us whether or not every time he told the story it was the same or different than what—
FORTNER: We object to the form of the question, Your Honor.
THE COURT: Overruled. Brought out on cross.
# :]s ❖ * * *
WEINBERG: (Continuing)
Q. Did he tell you the same story all the way through?
A. Not the exact same.

¶ 14. Manning argues in his appellate brief that by allowing the final question and answer of the above-quoted passage the trial court, in effect, permitted Nations to express a lay opinion which was not, but should have been, in conformity with the provisions of Rule 701 of the Mississippi Rules of Evidence. This argument is made for the first time in this appeal. The Mississippi Supreme Court has repeatedly held that a trial judge cannot be put in error on a matter which was not presented to him for decision. Bender v. North Meridian Mobile Home Park, 636 So.2d 385, 389 (Miss.1994). Thus, this issue is procedurally barred. Procedural bar, notwithstanding, we address the issue on its merit.

¶ 15. This Court wrote in Greer v. State, 755 So.2d 511, 516(¶14) (Miss.Ct.App.1999), that trial courts have broad discretion in allowing or disallowing redirect examination of witnesses and when the defense attorney inquires into a subject on cross-examination of the State’s witness, the prosecutor on redirect is unquestionably entitled to elaborate on the matter. Manning’s counsel asked on cross-examination whether Manning told the same story throughout his taped statement. Since Manning’s counsel opened the inquiry, it was not improper redirect for the prosecution to inquire on the same topic, even if the answers to the questions asked on redirect included an opinion of the person questioned. Accordingly, we find that this issue is without merit.

k. Self-Defense Instruction

¶ 16. Manning contends that his requested self-defense instruction was mandatory in view of the fact that the trial court charged the jury in two of its “elements-of the-crimes-eharged” instructions that in order to find guilt it had to find that in the commission of the homicide Manning did not act in necessary self-defense. Manning claims that in order for the jury to make a finding as to whether he did or did not act in necessary self-defense, it was necessary that the jury be instructed on the legal definition of self-defense. Manning claims that the purpose of his proposed instruction was to provide that definition. The proposed instruction reads as follows:

The Court instructs the jury that to make a killing justifiable on the grounds of self-defense in this case, the danger to Robert Manning must be either actual, present and urgent, or he must have a reasonable ground to apprehend a design on part of Louise Hilliard to do him some great bodily harm. In addition to this Robert Manning must have reasonable ground to believe that there is an imminent danger of Louise Hilliard accomplishing that design. It is for the jury to determine whether Robert Manning acted reasonably in the circumstances presented by the evidence.
If you find that Robert Manning acted in self-defense, then it is your sworn duty to find him Not Guilty.

¶ 17. In- refusing the instruction, the circuit court agreed with the State’s position that the “common sense meaning” of self-defense was sufficient notice to the jury of what was meant by “self-defense” in the elements instructions and that since there was no claim of self-defense anywhere in the trial record it was not necessary to give the jury an extensive legal definition of self-defense. This Court agrees with that ruling.

¶ 18. The only hint of a self-defense claim throughout Manning’s trial proceeding was contained in Manning’s statement to the police that he wrestled the gun away from Hilliard. Even if that version of what transpired is accepted as time, once he gained control of the gun there was no indication, not even from Manning himself, that Hilliard posed any further threat to Manning’s safety or well-being. In fact, the uncontested medical testimony was that Hilliard was shot while she was moving away from Manning. This Court finds that there was no basis in fact for a self-defense instruction and no need for a legal definition of “self-defense” as contained in the elements instructions. “Jury instructions are to be granted only where evidence has been presented which supports the instruction.” Jackson v. State, 815 So.2d 1196, 1200(¶ 7) (Miss.2002) (quoting Jones v. State, 797 So.2d 922, 927 (Miss.2001)). This aspect of this issue is without merit.

¶ 19. Manning further contends in his appellate brief that self-defense was his sole theory of defense and refusal of the instruction denied him a fundamentally fair trial in violation of the Constitution of the United States and of the Constitution of the State of Mississippi. This argument was never raised before the trial court; therefore, it is procedurally barred on appeal. Procedural bar aside, this claim has no merit. There is no constitutional right to have the jury instructed on a theory of defense that is not supported by the evidence.

5. Improper Closing Argument

¶ 20. Manning contends that the State made improper closing argument in several instances. First, Manning argues that the State traveled outside the confines of the record and urged the jury to disregard the court’s instruction that manslaughter could be considered as an alternative verdict. The complained of comments were as follows:

WEINBERG: Ladies and gentlemen, of course, the defendant is asking you to find him guilty of manslaughter. As Ms. Jackson told you yesterday or perhaps the day before during voir dire, murder carries life in prison as a sentence. Manslaughter carries somewhere between two and twenty years as a sentence so—
FORTNER: We’re going to object, Your Honor, and ask to approach the bench.
(THE FOLLOWING BENCH CONFERENCE OCCURRED BETWEEN THE COURT, COUNSEL AND THE COURT REPORTER OUTSIDE THE HEARING OF THE JURY)
FORTNER: I’m sorry, Your Honor. We object and move for a mistrial. It is completely inappropriate and improper for them to mention sentencing to this jury. This jury has nothing to do with sentencing. It’s no consideration for them whatsoever. Our Supreme Court on numerous occasion [sic] has condemned any party, defense or prosecution, from mentioning anything in this area, and we object and move for a mistrial.
WEINBERG: Our response is they’ve already done it, Your Honor. The jury is entitled to know the difference once they bring up the life imprisonment for murder.
FORTNER: We’ll stand on the record on it.
WEINBERG: The record is clear on it.
FORTNER: Good.
COURT: It was brought up during voir dire. This is the first time since this Judge has been a judge that the penalty has been brought up like that. It was brought up during voir dire by the defendant. In view of that, the Court is going to overrule the objection and deny the motion for mistrial.

During voir dire, counsel for Manning made the following comment without objection: “Mr. Manning is facing a life sentence if he gets convicted of murder, it’s very important that he gets jurors who are fair to him.”

¶ 21. It is well established in Mississippi that attorneys are given wide latitude in arguing their cases to the jury; however, tactics which are inflammatory, highly prejudicial and reasonably calculated to unduly influence the jury are not permissible. Hiter v. State, 660 So.2d 961, 966 (Miss.1995). Also, it is well settled in Mississippi jurisprudence that closing argument which discusses the possible penalty a defendant can receive is improper. See, e.g., Marks v. State, 532 So.2d 976, 983 (Miss.1988).

¶22. This Court, however, because of two reasons, finds no reversible error with the remarks made by the State. First, as the trial court found, the matter of the penalty, which Manning could receive, was first brought up by the defense during voir dire. Second, the proof of Manning’s guilt of murder is overwhelming. Accordingly, we find this assignment of error to be without merit.

¶ 23. Manning’s second contention regarding improper closing argument centers on comments made by the prosecutor regarding “deliberate design” murder. Specifically, Manning contends that the following remarks by the State are an incorrect statement of the law on deliberate design:

PROSECUTOR: So, yes, he could have gone there intending, but I’m telling you it doesn’t matter whether he went there intending to or not because the defense definition of deliberate design to effect death is not what the Court tells you in this instruction. It’s not what the Court tells you in this instruction. I’m as entitled to interpret that, and you are, as Ms. Jackson is, and deliberate design to effect death, I submit to you, means at the time he pulled that trigger, either time, either time, that at the time he pulled that trigger that he had formed the intent to kill her.
MS. JACKSON: Objection, Your Honor. That’s an improper statement of the law. That’s an improper statement of deliberate design.
PROSECUTOR: That he had formed the intent to kill her is a correct statement of the law, Your Honor.
THE COURT: Well, the objection is overruled because this is argument, just like the other ruling the Court made. It’s argument by the attorneys.

¶ 24. It is Manning’s contention that the comments fall outside the bounds of acceptable closing argument, and “the trial court’s allowance ... warrants reversal of Manning’s conviction and a remand for a new trial on the merits.” This Court disagrees.

¶ 25. The record indicates that the following occurred during defense closing argument:

MS. JACKSON: Then you go down to number four. Here’s where you’ve got the problem. This says with deliberate design to effect death. In order for it to be a deliberate design it’s got to be planned and advanced with full awareness of everything involved. He would have had to premeditate—
WEINBERG: — object to this as a misstatement of the law, Your Honor. Plan in advance is not a correct statement of the law.
H* H* * ❖ H« *
MS. JACKSON: May I, Your Honor?
THE COURT: All right.
MS. JACKSON: It’s deliberate — and I have the American Heritage Dictionary, Your Honor. This is argument, and that is what deliberate — the instruction says with deliberate design, and this is deliberate design. I’m explaining to them what it is, and that is allowed in argument. I do have the American Heritage Dictionary if you want to look at it.
THE COURT: The Court will overrule it. It’s argument.

¶ 26. It is clear from the foregoing record excerpt that the prosecutor was merely countering the defense’s argument on what was meant by “deliberate design.” This type of responsive reasoning does not overstep the bounds placed upon closing arguments. See Holmes v. State, 754 So.2d 529, 538(¶ 22) (Miss.Ct.App.1999).

¶ 27. Manning further contends that the State crossed the line with' the following remarks which were permitted to be made over his objection:

As I was saying, I’ve been doing this a long time. I’ve been doing this twenty years. I’ve been prosecuting full-time for twenty years, and I have seen a lot of death cases, and they’re always tragic, and this one falls in that category. It’s just tragic when somebody is killed needlessly as Louise Hilliard was for not doing anything except having an argument.

Manning contends that the prosecutor, by making these comments, was able to improperly inject his own personal beliefs and experiences from prior cases into Manning’s trial.

¶ 28. The record indicates that the jury was properly instructed on the law and was instructed that what was said in opening and closing argument was not evidence. The comments were innocuous. Finding that there was no abuse of discretion on the part of the circuit court in allowing them, we hold that this issue has no merit.

¶29. Finally, Manning contends that the totality of the separate instances of prosecutorial misconduct constitutes a course of conduct so egregious that a reversal and remand for a new trial on the merits is required. Needless to say, since this Court has found that there was no reversible error in any part, there is no reversible error to the whole. McFee v. State, 511 So.2d 130, 136 (Miss.1987).

6. Sufficiency of the Evidence

¶ 30. Manning contends that the evidence presented at his trial was only sufficient as a matter of law to support a conviction for manslaughter, not murder, and the case should be reversed and remanded to the trial court for re-sentencing on manslaughter or in the alternative, reversed and remanded for a new trial on the merits.

¶ 31. Our supreme court has held on many occasions that, “[w]hen reviewing a challenge to the sufficiency of the evidence, [the appellate court] considers all of the evidence in the light most consistent with the verdict, giving the State the benefit of all inferences favorable to the verdict. When the evidence before the jury is such that reasonable jurors could have found the defendant guilty, the verdict is beyond our authority to disturb.” Taylor v. State, 672 So.2d 1246, 1255 (Miss.1996).

¶ 32. On the basis of the medical testimony alone, that Hilliard was shot at a time when she had her back to Manning, we are compelled to find that any reasonable juror could have found Manning guilty; therefore, the verdict is beyond our authority to disturb.

¶ 33. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH SENTENCE TO RUN CONSECUTIVELY TO ANY OTHER SENTENCES IMPOSED BY ANY OTHER COURT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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


author: MYERS, J.,

text:
    Anthony McGRUDER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01542-COA.
    Court of Appeals of Mississippi.
    Jan. 21, 2003.
    Belinda J. Stevens, Jackson, attorney for appellant.
    Office of the Attorney General by: Jeffrey A. Klingfuss, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES and MYERS, JJ.
   MYERS, J.,

for the Court.

¶ 1. Anthony McGruder was convicted of two counts of murder and one count of arson on November 29, 2000, by the Circuit Court of Yazoo County. He now appeals citing the following issues:

I. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

II. WHETHER THE STATE COMMITTED REVERSIBLE ERROR DURING ITS CLOSING ARGUMENT WITH IMPROPER REMARKS THAT APPEALED TO THE BIAS AND PREJUDICE OF THE JURORS.

III. WHETHER THE CUMULATIVE EFFECT OF THE ABOVE ERRORS DENIED THE DEFENDANT A FUNDAMENTALLY FAIR TRIAL.

Finding McGruder’s appeal time-barred, we dismiss.

STATEMENT OF THE FACTS

¶ 2. In the early morning hours of June 23, 1998, a fire was started at 617 Grady Avenue in Yazoo City, Mississippi. While putting out the fire, firefighters discovered two bodies in the house. Subsequent investigations would reveal these were the bodies of Daisy Shinal and Willy Dixon, an elderly brother and sister who lived in the house along with Anthony McGruder, Ms. Shinal’s grandson. Autopsies revealed that Dixon and Shinal had died two to four days before the fire. The autopsies also showed that Shinal’s cause of death had been by strangulation and that Dixon had died of blunt force trauma to his head.

¶ 3. Eventually, McGruder became the primary suspect in the police’s investigation. During interrogation, McGruder voluntarily confessed to having a “confrontation” with Dixon and Shinal. McGruder admitted he pushed Dixon and Shinal, that he placed Dixon into Dixon’s bed, and never saw him move after that.

¶ 4. During McGruder’s trial in November 2000, State Deputy Fire Marshall Carl Rayfield and Yazoo City Fire Marshall James Jackson testified that piles of clothes had been placed over Shinal and Dixon and set on fire using paint thinner as an accelerant. There were no signs of forced entry into the house.

¶ 5. On November 29, 2000, McGruder was found guilty of the murders of Willy Dixon and Daisy Shinal and guilty of arson.

LEGAL ANALYSIS

¶ 6. We have no need to reach the merits of this appeal as it is time-barred. Rule 4(e) of the Mississippi Rules of Appellate Procedure instructs us a party may make an appeal following a criminal case in which they have filed posttrial motions. A defendant must file notice of his appeal by thirty days from the entry of the order denying either a motion for a judgment notwithstanding the verdict or a motion for a new trial. M.R.A.P. 4(e). “An appeal shall be dismissed if the notice of appeal was not timely filed pursuant to Rule[] 4” M.R.A.P. 2(a)(1).

¶ 7. The thirty-day limit is not an absolute limit on appeals. M.R.A.P. 4(h) allows the trial court to reopen the time for appeals if it finds that a party did not receive notice of the entry of the judgment within twenty-one days of its entry, and that no party would be prejudiced by reopening time for an appeal. However, this power is limited to within 180 days of the entry of the judgment or within seven days of receipt of notice only, whichever is earlier.

¶ 8. McGruder’s sentence was filed December 6, 2000. On November 19, 2001, McGruder filed a motion for an out of time appeal. The trial court denied this motion on December 20, 2001. Since McGruder has not received permission to file an out of time appeal, this Court must dismiss the appeal as time-barred.

¶ 9. THE APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YAZOO COUNTY.

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


author: THOMAS, J.,

text:
    Jerry KINCAID, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01652-COA.
    Court of Appeals of Mississippi.
    Jan. 21, 2003.

      Michael E. Robinson, Prentiss, attorney for appellant.
    Office of the Attorney General by: John R. Henry Jr., attorney for appellee.
    Before McMILLIN, C.J., THOMAS, and CHANDLER, JJ.
   THOMAS, J.,

for the court.

¶ 1. Jerry Kincaid was convicted of the sale of a controlled substance in the Circuit Court of Leake County and sentenced to two consecutive three year terms and ordered to pay a fine in the amount of $1,500 along with all court costs. Aggrieved, he asserts the following issues:

I. THE TRIAL COURT ERRED IN NOT REQUIRING THE STATE TO DISCLOSE THE NAMES OF THE CONFIDENTIAL INFORMANTS IN VIOLATION OF THE CONFRONTATION CLAUSE UNDER THE UNITED STATES AND MISSISSIPPI CONSTITUTIONS.
II. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S MOTION FOR DIRECTED VERDICT.
III. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S MOTION FOR A JUDGEMENT NOTWITHSTANDING THE VERDICT.
IV. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT’S MOTION FOR A NEW TRIAL.
Finding no error, we affirm.

FACTS

¶ 2. On December 8, 2000, agents with the Mississippi Bureau of Narcotics held a pre-buy meeting in Leake County, Mississippi. Along with the agents at the meeting were two confidential informants and the Leake County Sheriff. Agent Sandy Townsend was given a tape recorder and “wired” for sound. She then left with the two informants and went to a house on Ruben Road. Upon arrival at the house, one of the informants went inside and then returned to the car. All three then entered the house.

¶ 3. Inside the house, several men were playing dominos and there were other people throughout the house. Townsend was introduced to Jerry Kincaid, and one informant told Kincaid that Townsend wanted to purchase marijuana. According to testimony at trial, Kincaid asked how much marijuana Townsend wanted and she replied by holding up four fingers and saying, “I want four,” meaning four ten dollar “dime” bags.

¶ 4. Kincaid told Townsend that he normally searched buyers who wanted more than three bags at a time, but he did not search Townsend. He took a package of cigarettes out of his pocket and then removed four bags which he passed to the informant who in turn gave them to Townsend. Townsend gave Kincaid forty dollars and she left with the two informants. They went to a post buy meeting where the bags were given to another officer. The substance in the bags was indeed found to be marijuana.

¶ 5. On January 25, 2001, Kincaid sold another four bags of marijuana to a Bureau of Narcotics Agent in a similar controlled buy which included the assistance of a confidential informant. In this sale, Kincaid handed the bags directly to the agent rather than to the informant. The first sale netted 5.5 grams of marijuana, and the second sale totaled 6.0 grams.

¶ 6. Kincaid was arrested for the sale of marijuana. At trial, Agents Sandy Townsend, Elonzo Banks, Claire Gremillion, Joey Mayes, and Brandi Goodman with the Mississippi State Crime Laboratory testified for the State as to the events that occurred and the identification of the substance obtained from Kincaid. In his defense, Kincaid presented two witnesses who testified that they were present when the agent and the confidential informants came by both on December 8 and January 25. They testified that when asked to sell marijuana, Kincaid told them he had none. At the close of trial, the jury found Kincaid guilty on both counts.

ANALYSIS

I. DID THE TRIAL COURT ERR IN NOT REQUIRING THE STATE TO DISCLOSE THE NAMES OF THE CONFIDENTIAL INFORMANTS IN VIOLATION OF THE CONFRONTATION CLAUSE UNDER THE UNITED STATES AND MISSISSIPPI CONSTITUTIONS?

¶ 7. Kincaid alleges that the trial court erred in not requiring the State to disclose the names of the confidential informants. The State admits that since the informants were actual participants in and witnessed the sale, their identity should be made known to the defense upon its request. Arnett v. State, 532 So.2d 1003, 1007-1008 (Miss.1988); Read v. State, 430 So.2d 832, 836 (Miss.1983). The State argues that the defense was given a disclosure which by its own admission it failed to investigate, and that Kincaid’s Constitutional rights were therefore not violated.

¶ 8. At trial, the defense questioned one of the State’s witnesses as to the identity of the confidential informants. The witness declined to identify the informants unless ordered to do so by the trial court. The trial court then held a hearing outside the presence of the jury. During the hearing, the prosecutor informed the court that the State had previously “identified” the confidential informants during discovery over a year before by disclosing the “identification number” of one informant and the fact that the other was “uncoded.” The prosecutor then argued that since the defense had not previously pursued identification of the informants and that he did not intend to call them as witnesses, the informants did not need to be identified in open court. The prosecutor stated that he had no objection if the defense wished to speak with the informants and he thought they were both within the building at that time.

¶ 9. The defense admits that the prosecutor gave him the information regarding the “coded” and “uncoded” informants, and that it did not attempt to contact the Bureau of Narcotics as to the exact identity of the informants. The defense informed the trial court that Kincaid believed he knew who the informants were, thus no effort was made to contact the Bureau of Narcotics. The trial court considered the constitutional requirement of disclosure but also weighed this against whether a State’s witness could be compelled to name a confidential informant in open court. Since the informants were said to be present at the court house, the trial court ruled that it would not permit the defense to bring out the identity of the informants in open court, but the defense could take time to interview them. The defense however did not interview the informants.

¶ 10. The trial court relied on Bracey v. State, 724 So.2d 1028 (Miss.Ct.App.1998), in making its decision. In Bra-cey, the defense asked a witness to reveal the identity of a confidential informant; the State objected and the court sustained the objection. Bracey, 724 So.2d at 1033(¶ 23). On appeal, Bracey asserted that “where a confidential informant is present and actually participates in the commission of a crime, his identity shall be revealed when requested by a defendant.” Bracey, 724 So.2d at 1033(¶ 24) (quoting Hemphill v. State, 313 So.2d 25, 26 (Miss.1975)). This Court held that whether the identity of an informant must be revealed in open court is an entirely different matter. Id. If it is considered to be a violation of discovery, which is what the rule in Hemphill is about, then the proper remedy is to seek a continuance or waive the issue. Id. at 1033(¶ 25) (citing Dowbak v. State, 666 So.2d 1377, 1385 (Miss.1996)). The question therefore falls under admissibility of evidence, over which the trial judge has considerable discretion. Id. Absent a showing of prejudice, we cannot say that the trial judge abused his discretion in refusing to admit this proposed evidence. Id.

¶ 11. Kincaid makes no claim that the names of the informants would have provided any value to his defense. There was no showing that any defense turned on the identity of the informants. The defense did not avail itself of the opportunity to interview the informants when they were present in the courthouse. The safety and continuing viability of confidential informants were an important consideration of the trial court. The trial court’s decision to deny the defense’s request to provide the names of the confidential informants in open court is within its discretion. This issue is without merit.

II. DID THE TRIAL COURT ERR IN DENYING THE DEFENDANT’S MOTION FOR DIRECTED VERDICT?

III. DID THE TRIAL COURT ERR IN DENYING THE DEFENDANT’S MOTION FOR A JUDGEMENT NOTWITHSTANDING THE VERDICT?

¶ 12. Kincaid appeals from the denial of his motions for directed verdict and judgment notwithstanding the verdict, challenging the sufficiency of the evidence in support of his conviction. When reviewing a trial court’s denial of a motion for a directed verdict or JNOV, this Court considers “the sufficiency of the evidence as a matter of law ... in a light most favorable to the State.” McClain v. State, 625 So.2d 774, 778 (Miss.1993). We will accept any credible evidence that supports guilt as true, granting the prosecution “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Wetz v. State, 503 So.2d 803, 808 (Miss.1987). This Court will only reverse where a reasonable, fair-minded juror could not have found one of the required elements of the crime. Gleeton v. State, 716 So.2d 1083, 1087(¶ M) (Miss.1998).

¶ 13. Kincaid argues that a reasonable juror could not have found him guilty based upon the agent’s testimony and the testimony of his witnesses. Kincaid also asserts that the swiftness of the jury, which took only fourteen minutes to reach a verdict, suggests that the jury was not reasonable and fair minded and had their minds made up during the trial. The evidence taken in support of the verdict included testimony of law enforcement personnel that purchased bags of a substance from Kincaid on two separate occasions. Tests of the substance confirmed that it was marijuana. Kincaid presented two witnesses who testified that he did not sell any marijuana,’ and he questions the State for not putting any audio tape or the confidential informants into evidence.

¶ 14. It has been established that “the jury is the judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each witness.” Meshell v. State, 506 So.2d 989, 991 (Miss.1987). See also Hilliard v. State, 749 So.2d 1015, 1017(¶ 9) (Miss.1999); Lewis v. State, 580 So.2d 1279, 1288 (Miss.1991); Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979). As trier of fact, it was the jury’s duty to determine what evidence was to be believed and what evidence was to be disregarded. Mangum v. State, 762 So.2d 337, 347(¶36) (Miss. 2000). The evidence was sufficient for a reasonable juror to find Kincaid guilty of the sale of marijuana.

IV.DID THE TRIAL COURT ABUSE ITS DISCRETION IN DENYING DEFENDANT’S MOTION FOR A NEW TRIAL?

¶ 15. Kincaid asserts that the trial court abused its discretion in denying his motion for a new trial. A motion for new trial challenges the weight of the evidence. McClain, 625 So.2d at 781. The standard of review in determining whether a jury verdict is against the overwhelming weight of the evidence is also well settled. “[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.” Collins v. State, 757 So.2d 335, 337(¶ 5) (Miss.Ct.App.2000) (quoting Dudley v. State, 719 So.2d 180, 182(¶ 9) (Miss.1998)). On review, the State is given “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Collins, 757 So.2d at 337(¶ 5) (citing Griffin v. State, 607 So.2d 1197, 1201 (Miss.1992)). “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.” Collins, 757 So.2d at 337(¶ 5) (quoting Dudley, 719 So.2d at 182).

¶ 16. Accepting as true all evidence favorable to the State, the record shows that the evidence involved in the case is overwhelmingly in the State’s favor. When reviewing the evidence in the light consistent with the verdict and giving the State all favorable inferences which may be drawn from the evidence, the verdict was not against the overwhelming weight of the credible testimony. Accordingly, this issue lacks in merit, and the verdict of the jury will not be disturbed.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY OF CONVICTION OF COUNT 1, SALE OF LESS THAN ONE OUNCE OF MARIJUANA AND SENTENCE OF THREE YEARS AND FINE OF $1,500; AND COUNT 2, SALE OF LESS THAN ONE OUNCE OF MARIJUANA AND SENTENCE OF THREE YEARS ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH SENTENCES TO RUN CONSECUTIVELY IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: KING, P.J.,

text:
    Keith A. MITCHELL, Appellant, v. Bridgett C. BROWN and State Farm Mutual Automobile Insurance Co. Biloxi, Mississippi, Appellees.
    No. 2001-CA-01985-COA.
    Court of Appeals of Mississippi.
    Jan. 21, 2003.

      Rocky Wayne Eaton, Mobile, AL, attorney for appellant.
    Peter C. Abide, Joe Crawford Gewin, Biloxi, H. Benjamin Mullen, Pascagoula, attorneys for appellees.
    Before KING, P.J., BRIDGES, and LEE, JJ.
   KING, P.J.,

for the court.

¶ 1. This case involves the failure of the plaintiff to serve process upon the defendant within the 120 day time period prescribed by Rule 4(h) of the Mississippi Rules of Civil Procedure. Finding the trial court did not abuse its discretion in dismissing the matter on that basis, this Court affirms.

Facts

¶ 2. Keith Mitchell was injured in an automobile accident on December 11, 1997. As a result of injuries sustained in that accident, Mitchell filed a complaint in circuit court on December 8, 2000, against Bridgett Brown and others. On April 16, Brown moved to dismiss the complaint because she had not received timely service of process. On April 23, Brown - was served. The trial court found that Mitchell had not served process upon Brown within 120 days, as required by Rule 4(h) of the Mississippi Rules of Civil Procedure, and accordingly dismissed the complaint.

Issues

¶ 3. Mitchell assigns the following issues on appeal:

I. Trial court error in granting Brown’s motion to dismiss for Mitchell’s failure to serve process on Brown within 120 days of filing the complaint; and
II. Trial court error in denying Mitchell’s motion for additional time for service of process.

Resolution of the Issues

¶ 4. Mississippi Rule of Civil Procedure Rule 4(h) requires that a summons be served upon a defendant within 120 days after a complaint has been filed. The parties agree that service of process was not achieved within 120 days of filing the complaint. The complaint was filed December 8, 2000. One hundred twenty days from that date was April 9, 2001. Process was served on April 23, 2001, approximately 133 days after the filing of Mitchell’s complaint.

¶ 5. Rule 4(h) is intended to require plaintiffs to timely submit their claims to a court for appropriate judicial review. Holmes v. Coast Transit Auth., 815 So.2d 1183(¶ 14) (Miss.2002). Exceptions to this requirement are only permitted upon a showing of good-cause or excusable neglect. Moore ex rel. Moore v. Boyd, 799 So.2d 133(¶ 7) (Miss.Ct.App.2001).

¶ 6. This Court reviews under an abuse of discretion standard a trial court’s finding regarding the existence of good cause or excusable neglect. Rains v. Gardner, 731 So.2d 1192 (¶ 19) (Miss.1999). Where that ruling is supported by substantial evidence, this Court of necessity defers to the trial court’s holding. Id. at (¶ 18).

¶ 7. Mitchell stated that the complaint was mailed to Brown’s last known address. However, that address was obtained from the accident report, which was then about three years-old. There were no efforts to verify that this address remained valid.

¶ 8. The record indicates that Brown had not lived at that address for in excess of two years. Additionally, there is nothing contained in the record to suggest that Brown secreted herself or otherwise attempted to evade service of process.

¶ 9. Because of this, the trial court held that Mitchell failed to carry his burden of establishing good cause or excusable neglect. That decision is supported by substantial credible evidence, and is affirmed by this Court.

¶ 10. The time to serve process, may be extended, provided the extension is requested within the 120 day period. Moore v. Boyd, 799 So.2d 133(¶7) (Miss.Ct.App.2001). Mitchell filed his motion for an extension of time on June 29, 2001, well after the passage of the 120-day period. Therefore, the trial court appropriately denied Mitchell’s request to extend the time for service of process.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED AGAINST THE APPELLANT.

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

      . M.R.C.P. 4(h) provides: Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.