text:
    Ronald Ray EVANS, Appellant, v. Dean MOORE, Executrix of the Estate of Mylinda Louann (Rodgers) Evans, Deceased, Appellee.
    No. 2002-CA-00897-COA.
    Court of Appeals of Mississippi.
    Aug. 26, 2003.

      H.R. Garner, Malenda Harris Meacham, Hernando, attorneys for appellant.
    Gerald W. Chatham, Hernando, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and GRIFFIS, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Ronald Evans appeals from a summary judgment that found his former wife’s estate to be the owner of a certain life insurance policy covering her life. However, the ultimate issue in the suit is whether Mr. Evans is the proper beneficiary under such a policy. - That question is not answered by a judgment about who is its owner. We dismiss since this is an interlocutory appeal for which the necessary certification has not been given.

FACTS

¶2. Ronald and Mylinda Evans were divorced in April 1996. At a hearing in January 1996, there was a discussion among the chancellor, both parties and their counsel regarding ownership of two term life insurance policies. One policy apparently insured the husband’s life and named his wife as beneficiary. The second was said to cover the wife’s life and named her daughter, Brooke, as beneficiary. Though both policies have been referenced in these proceedings, the trial court granted relief only on one policy. It may not be either one mentioned in the 1996 hearing.

¶3. No policy is in the record. The parties are in seeming agreement that the chancellor’s 2002 decision concerns a policy on Mylinda Evans’s life that has Ronald Evans as the beneficiary. If he is not the beneficiary, then we do not understand this litigation. Mr. Evans had agreed in 1996 to convey any ownership that he might have in a policy on his soon-to-be former wife that had his wife’s daughter Brooke as beneficiary. Perhaps there has been one policy on Mrs. Evans’s life since 1996 that has had a change of beneficiary. Perhaps these are two different policies.

¶ 4. An excerpt from the 1996 hearing transcript reveals that Mrs. Evans stated she wished to keep policies both on her life and on Mr. Evans as she had been paying the premiums. Her husband, through counsel, agreed to take whatever action was necessary to transfer any ownership he might have in both policies. The reason for ownership to be transferred was not stated beyond what we have already indicated, namely, that Mrs. Evans had been paying the premiums but she thought her husband was the policy owner. Had the policies in question been in the record, we assume they would describe the rights that are possessed by owners. The court orally noted the in-court agreement but did not mention it or require compliance with it in any order. Mrs. Evans made her sole effort to compel compliance in June 1996. She did not pursue the matter to decision then or ever. The estate is now attempting to do so.

¶ 5. In 1999, Mrs. Evans executed a holographic will. In this document, she described two policies insuring her life, one with a benefit of $800,000 to be paid to her daughter, and another with a benefit of $100,000 to be paid to her ex-husband. The will stated the testator’s wish that each named beneficiary receive the proceeds as designated in the policies. Whether this $800,000 policy on Mrs. Evans with her daughter as beneficiary is the one in existence in 1996 is unknown. Though this will was replaced before her death by another will, there has been no argument that the will reflected anything other than Mrs. Evans’s wishes at that time about the beneficiaries of property in her estate and of insurance. Whatever else may be gleaned from the 1999 will, it certainly appears that Mrs. Evans had a continuing interest in her ex-husband’s finances.

¶ 6. Mylinda Evans died of cancer in February 2002. A few weeks before her death, she executed a formal will which properly did not mention insurance policies. Her mother, Dean Moore, was named executrix. Moore filed a petition for a temporary restraining order to prevent her former son-in-law from obtaining any proceeds from insurance on his former wife. The executrix also sought to have Mr. Evans held in contempt for failing to sign over ownership of the policies as agreed at the divorce hearing in January 1996.

¶ 7. The chancellor granted the restraining order. The petition for contempt was not ruled upon. After a later hearing, the estate’s motion for summary judgment was granted. The chancellor found the estate to be the owner of “the policy in question.” Though no order from the court ever identified the specific policy being contested, no one has disputed that the policy is one issued by State Farm Life Insurance Company and numbered LF 1084-5404. Whether this is one of the policies that existed in 1996 is not shown in this record. The chancellor did not determine the proper beneficiary under the policy. The court ordered the insurer to pay the proceeds into the court until further order about the “ultimate disposition”, of the “funds from those policies.... ” Mr. Evans informed the chancellor at the hearing that he would appeal. No discussion appears of whether this was seen as a partial summary judgment or the appeal as interlocutory.

¶ 8. This is the second appeal involving issues arising from the 1996 divorce. The first appeal was from the divorce decree itself. Mr. Evans’s appeal was deflected to this Court. No cross-appeal by Mrs. Evans was made. In an unpublished opinion, we affirmed on all issues — none of which concerned Mr. Evans’s failure to comply with an alleged obligation to assign these policies. Evans v. Evans, 723 So.2d 1246 (table), 96-CA-00454 (Miss.Ct.App. Apr. 28, 1998).

¶ 9. In order to reveal what has already been decided by this Court regarding these two former spouses, we reproduce the initial part of that 1998 opinion. We note that the deceased was there referred to with the last name of Rodgers.

OPINION ON INITIAL APPEAL

¶ 10. The DeSoto County Chancery Court granted Ronald Ray Evans and My-linda Rodgers Evans a divorce on the grounds of irreconcilable differences. Pursuant to the consent of the parties, the court resolved issues relating to an equitable distribution of the marital property, alimony, and attorney fees. Mr. Evans appeals asserting that the chancery court erred in awarding Mrs. Rodgers periodic alimony of $800 per month and attorney fees. [Mr. Evans also alleged that the chancellor exhibited bias against his trial counsel.] Though represented by counsel below, he appeals pro se. Finding that these issues do not merit reversal, we affirm.

STATEMENT OF FACTS

¶ 11. The parties were married on December 23, 1983 and lived together until 1994. Although no children were born to them, Mrs. Rodgers had a daughter from a previous marriage. During the early years of the marriage, Mrs. Rodgers was employed as a beautician. In 1987, Mrs. Rodgers sustained injuries in an automobile accident and was totally disabled. Mr. Evans has been employed for a number of years with Waterman Industries Sales in Memphis, Tennessee, as a sales manager.

¶ 12. On January 29, 1996, Mrs. Rodgers and Mr. Evans consented to a divorce on the grounds of irreconcilable differences. The parties stipulated that the chancery court would resolve, among other things, issues concerning a division of the marital property, the awarding of alimony, and attorney fees. During a hearing on the matter, Mrs. Rodgers and Mr. Evans presented extensive testimony about then-respective health and mental conditions, income and expenses, individual retirement accounts, and needs. The parties also introduced into evidence a written agreement which they had entered into following the completion of the marital residence. The agreement provided that upon the sale of the residence or the divorce of the parties, Mrs. Rodgers would receive $126,600 from the proceeds or from the equity in the residence, with any remaining proceeds or equity to be divided equally between the parties.

¶ 13. The chancellor found that the written agreement was valid and equitably divided the remaining marital property. The chancellor also awarded Mrs. Rodgers periodic alimony of $800 per month and attorney fees. On appeal, Mr. Evans alleges that the chancellor erred in awarding Mrs. Rodgers periodic alimony and attorney fees. [End of 1998 opinion.]

DISCUSSION

¶ 14. In 1998, we rejected the former husband’s challenges to alimony and attorney fees. Now in 2003, Mr. Evans’s sole appellate issue is the propriety of summary judgment on ownership of this policy. Partial or complete summary judgment may be granted when there are no disputed, material facts on a legal issue relevant to the litigation. M.R.C.P. 56. If the “judgment is not rendered on the whole case or for all relief asked,” then other proceedings on the remainder must be held. M.R.C.P. 56(d). An appeal from an interlocutory judgment requires a request for certification by the trial judge that there is no need for delay in the appeal. M.R.C.P. 54(b). That did not occur.

¶ 15. The most useful focus to determine whether we have the entire case before us is to examine what the parties were seeking to accomplish in this litigation. The initial pleading after Mrs. Evans’s death was a request for a temporary restraining order directed to State Farm. The estate said that it believed Mr. Evans “will attempt to cash in the proceeds of this policy and that the rightful beneficiary of said policy should be the minor child of the Decedent, Penny Brooke Dean.” The suit, then, is about the payment of benefits under the policy. State Farm answered that it had no basis to respond to the validity of most of the factual allegations. It argued that regardless of the various factual issues, the limit of its liability was the amount of insurance under policy number LF 1084-5404. State Farm did not indicate anything else about the policy, including the party insured, the beneficiary, the amount of benefits, or whether it was one of the policies that existed in 1996.

¶ 16. Several related but far from identical issues have circulated in this case. Pleadings reveal without dispute but also without evidence that in 1996 there were two policies affected by the agreement to assign ownership, one on Mylinda Evans with her child Brooke as the beneficiary, and the other on Ronald Evans with My-linda Evans as the beneficiary. Neither policy apparently was ever assigned. The policy on Mr. Evans’s life has not been an issue in this litigation. The only issue decided so far is that Mr. Evans should not be the owner of a specific State Farm policy on his wife’s life. Certainly implicit in this suit is that Mr. Evans is a current beneficiary under that policy, but he was not the beneficiary in the policy he agreed to assign in 1996. According to the holographic will, at least one other policy on Mrs. Evans’s life existed by 1999.

¶ 17. Review is stymied by the inadequacy of the record. It is admitted that the 1996 policy on Mrs. Evans’s life was a term policy with no cash value. Mrs. Evans testified in 1996 that she had been paying the premiums. She may have continued to pay the premiums on that same policy up until her death despite the failure of any assignment of ownership to her. She may instead have purchased two new policies by 1999. If so, Mrs. Evans likely was the owner of the new policies.

¶ 18. It is true that Mr. Evans never alleged as a defense that the policy that he had agreed to assign in 1996 no longer existed. Yet he was the defendant. It was the estate as plaintiff that had to present evidence that it was the same policy. If instead a new policy has replaced it that was purchased by Mrs. Evans, then the 1996 order likely was moot. There is no evidence here that Mr. Evans even had an ownership interest in the policy that is being questioned.

¶ 19. The chancellor rejected laches and waiver as grounds to find that whatever was agreed in 1996 was no longer operative by 2002. His ruling seemed based on the fact that a court order had been entered in 1996 on other property issues premised on the agreement to assign ownership. Whether assigning of ownership was an implied term of the property settlement and whether a party in whose benefit the term existed may abandon her rights to enforce it are not properly before us. We will shortly explain that no final judgment has yet been entered and we dismiss this appeal. Our failure to address the waiver issue does not indicate any conclusion about the resolution so far.

¶ 20. The chancellor found that the policy was owned by the estate but said that it “makes no finding regarding the beneficiary of said policy.” State Farm was ordered to pay the proceeds into the court until further order about the “ultimate disposition” of the “funds from those policies .... ”

¶ 21. We find nothing on this record to support that the determination of ownership of this policy resolved any relevant issue in this case. Ownership during an insured’s lifetime bestows a variety of rights in the policy. Though the specific policy might define the rights of the owner somewhat differently, we find useful on this scant appellate record to point to a neighboring state’s descriptions of the incidents of ownership of an insurance policy:

The policy owner is entitled to the lifetime benefits payable under the insurance policy, that is, those exercisable by the owner pursuant to policy terms and provisions, during the lifetime of the owner. These benefits include: the right to cash surrender value, receive dividends, assign or pledge policy proceeds, borrow against the policy, name and change of beneficiary, and execute conversion rights.

Succession of Jackson, 402 So.2d 753, 756 (La.Ct.App.1981).

¶ 22. We are not concerned with such matters as the right to borrow against the policy, cash surrender value, or beneficiary change. The policy owner’s rights largely end at the death of the insured. The policy beneficiary then has a right to the proceeds, which until death is only an expectancy. At the insured’s death the right to change the beneficiary no longer exists; the rights of the beneficiary have vested. See DeFoe v. Great Southern Nat'l Bank, 511 So.2d 912 (Miss.1987); 4 Couch on INSURANCE § 27:64 (1984). In some circumstances a constructive trust may be imposed on the benefits in order that they are ultimately paid to someone else despite the vesting. Davidson v. Davidson, 667 So.2d 616, 620 (Miss.1995). That principle also is unrelated to ownership.

¶ 23. We admit to some uncertainty in the relief being sought. In the first petition for a temporary restraining order and in the motion for summary judgment, the estate asked for determination of ownership of the 'policy. In the amended petition, it asked for determination of ownership of the funds. In the answer to both petitions, the respondent argued that the money was the real issue, not policy ownership. The entirety of the summary judgment hearing was dedicated to ownership of the policy. Nonetheless, at the conclusion of the hearing, the trial judge ordered the proceeds of the policy to be paid into the court to await further order on the proper beneficiary. The need to name the proper recipient for the funds was recognized in pleadings and in the court’s decision.

¶ 24. Indeed, if the issue of the proper beneficiary were not raised, then there would be no apparent actual controversy to decide. As already explained, until the death of the insured, the ownership of a life insurance policy is a vital question. After death of the person insured, the question is largely moot. Mississippi rules on standing of a party to bring suit are said to be more liberal than in the federal system. Van Slyke v. Bd. of Trustees of State Institutions of Higher Learning, 613 So.2d 872, 880 (Miss.1993) (state constitution does not limit suits to “actual case or controversy” as does federal constitution). This does not mean any person may sue any other on any issue. A plaintiff still normally must “assert a colorable interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant....” Harrison County v. City of Gulfport, 557 So.2d 780, 782 (Miss.1990). The judicial “review procedure should not be allowed for the purpose of settling abstract or academic questions, and [ ] we have no power to issue advisory opinions.” Allred v. Webb, 641 So.2d 1218, 1220 (Miss.1994).

¶ 25. An example of this was in a suit brought by the chairman of one of two competing factions in a political party. It was argued that his faction’s candidates should be the only ones of that party on the ballot. The appeal was not resolved until after the election. “A reversal and remand would be entirely useless as to matters already discharged.” Sheldon v. Ladner, 205 Miss. 264, 265-270, 38 So.2d 718, 718-19 (1949). The case was moot and dismissed. In our case, what once was an important matter of policy ownership was even before filing of the suit no longer consequential.

¶ 26. We find that if ownership of this policy were the sole question presented, then on the record before us, that was academic and beyond the proper invocation of court procedures. However, the estate has always sought to prevent benefits from being paid to Mr. Evans. Nothing significant on that matter has yet been determined. The identity of the beneficiary was an issue in the case and apparently was reserved. Since all pertinent issues have not been resolved, the appeal is interlocutory and its dismissal is appropriate. If one of the parties continues to believe that ownership of the policy is relevant, then the reason can be shown in new proceedings below at the same time as the defects in evidence about the policy are addressed.

¶ 27. This appeal was taken from what was in effect a partial summary judgment. Usually, an appeal may only be taken “from any final judgment of a circuit or chancery court in a civil case.... ” Miss. Code Ann. § 11-51-3 (Rev.2002). The right to appeal from something other than a final judgment has been granted by rule and begins with a request to the trial judge to certify that there is no just reason for delay. See M.R.C.P. 54(b); M.R.A.P. 5. It would have been difficult to justify a certification here since ownership is not the issue. Certification was neither sought nor given.

¶ 28. This is an improper interlocutory appeal. We dismiss.

¶ 29. THE APPEAL FROM THE JUDGMENT OF THE CHANCERY COURT OF DESOTO COUNTY IS DISMISSED. ALL COSTS ARE ASSESSED TO THE APPELLANT.

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


source: Caselaw Access Project

author: IRVING, J., McMILLIN, C.J.,

license: Public Domain

text:
    James E. OTIS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00410-COA.
    Court of Appeals of Mississippi.
    Aug. 26, 2003.

      Lesa Harrison Baker, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   IRVING, J.,

for the Court.

¶ 1. James E. Otis was convicted of armed robbery by a jury in the Circuit Court of Lincoln County and sentenced as a habitual offender to life in prison in the custody of Mississippi Department of Corrections with no eligibility for parole or probation. Feeling aggrieved by this decision, Otis makes a timely appeal and asserts the following issues: (1) whether the trial court erred in sentencing him to life in prison without parole under the habitual offender statute, Mississippi Code Annotated section 99-19-83, when his prior convictions did not conform to the statutory requirements, (2) whether the trial court erred in allowing the State during closing argument to comment on his failure to testify, (3) whether the trial court erred in failing to grant a mistrial after a State’s witness testified that Otis had been arrested in another jurisdiction on a similar charge, (4) whether the trial judge erred in denying his motion for a judgment notwithstanding the verdict, or in the alternative, a motion for a new trial, (5) whether the trial court erred in allowing the State to continue questioning during voir dire after the State had the jury members commit to the amount of evidence on which they would or would not be able to convict, and (6) whether the cumulative effect of errors in the trial court denied the defendant his constitutional right to a fair and impartial trial.

FACTS

¶ 2. On June 23, 2000, an individual walked into Alistar Rent to Own, a rental appliance store, made his way to the back sales counter, and confronted the store’s clerk. The individual displayed a gun, demanded money, and made the clerk lie on the floor. He then wrapped his hand in his t-shirt, opened the cash drawer of the register, and retrieved approximately $53 in currency. The individual tore the phone out of the wall, took a cordless phone that was present, and exited the store. Approximately a month after the robbery, the clerk identified Otis in a photo lineup as the person who robbed the store.

¶ 3. Otis was indicted by a Lincoln County grand jury on October 11, 2001. A jury trial was held on January 31, 2002, on the charge of armed robbery, and the jury returned a verdict of guilty but could not agree as to the sentence. On the next day, the court sentenced Otis as a habitual offender to a term of life in prison in the custody of the Mississippi Department of Corrections with no eligibility for parole or probation.

¶ 4. Following his conviction and sentence, Otis filed a motion for judgment notwithstanding the verdict or in the alternative, motion for a new trial. This motion was overruled by the court on the same day it was filed, resulting in this appeal.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Sentencing under the Habitual-Offender Statute

¶ 5. Otis first contends that he was improperly sentenced under the state’s life-imprisonment habitual offender statute, Mississippi Code Annotated section 99-19-83, because his prior convictions do not meet the requirements for enhanced punishment under the statute. The State acknowledges that Otis’s argument “appears to have merit,” and suggests that this Court should remand this case for re-sentencing under the state’s maximum-term-imprisonment-habitual-offender statute, Mississippi Code Annotated section 99-19-81.

¶ 6. The life-imprisonment-habitual-offender statute reads as follows:

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

Miss.Code. Ann. § 99-19-83 (Rev.2000).

¶ 7. Before proceeding to address Otis’s argument, we state additional facts. The record reveals that on September 20, 1993, Otis was convicted, pursuant to a plea of guilty, of the following offenses: in cause number 11,222, count one, kidnapping, count two, robbery; in cause number 11,-223, grand larceny; in cause number 11,-226, four counts of felonious bad checks. In cause number 11,222, Otis was sentenced to two concurrent terms of twenty years, one term for each count. In cause number 11,223, Otis was sentenced to five years to run consecutively with the sentences imposed in cause number 11,222, and with the proviso that, upon the completion of the sentence in cause number 11,222, the remainder of the sentence would be suspended for five years. In cause number 11,226, Otis was sentenced to concurrent terms of three years on each of the four counts with the sentences to run consecutively to the sentences imposed in cause number 11,222, and with the proviso that, after the completion of the sentence in cause number 11,222, the remainder of the sentence would be suspended for five years.

¶ 8. Otis admits that, prior to being convicted of the instant crimes, he had been convicted of seven felonies: kidnapping, robbery, larceny, and four counts of felonious bad checks. However, he asserts that the charges for kidnapping and robbery were not “separately brought” and more importantly that the charges did not “arise out of separate incidents at different times” as required by the life-imprisonment-habitual-offender statute. Therefore, he concludes that the circuit court erred when it sentenced him as a habitual offender under section 99-19-83 because he lacks the prior convictions required by the statute. We examine this proposition and begin our examination by returning to a discussion of the prior robbery and kidnapping convictions.

¶ 9. The prior convictions for kidnapping and robbery emanated from a single two-count indictment filed in cause number 11,222. At the sentencing hearing, no testimony was adduced which spoke to the timing or the sequence of events which gave rise to the two charges. We are informed only by the language in the indictment comprising the predicate offenses. It concludes with the following pertinent language:

[A]ll of said conduct alleged and set forth in counts one and two of this indictment having then and there been based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, and against the peace and dignity of the State of Mississippi.

Clearly, based on the language in the indictment, the kidnapping and robbery charges arose out of a single incident. Therefore we find, on the authority of Nicolaou v. State, 534 So.2d 168 (Miss.1988), Riddle v. State, 413 So.2d 737 (Miss.1982), and Walls v. State, 759 So.2d 483 (Miss.Ct.App.2000), that Otis’s prior kidnapping and robbery convictions must be counted as one felony for determining the number of prior felonies that he has committed. However, for two reasons, our inquiry does not end here. The first reason is that, although these two felonies must be counted as one in determining the number of prior felonies committed, there is no logical reason to count the two separate sentences, which he received for the two felonies, as one sentence. The second reason is that Otis has committed five other prior felonies.

¶ 10. The question that must be answered is whether the concurrent sentences, which Otis received for the kidnapping and robbery convictions, may be counted as separate terms in satisfaction of the requirement that a defendant must “have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution” before he may be sentenced under Mississippi Code Annotated section 99-19-83. If they may, the trial judge did not err in sentencing Otis to life imprisonment because, at the time of sentencing in this case, he had previously been convicted of seven felonies, one of which was a crime of violence, and had served more than one year of the concurrent sentences. We examine this proposition next, and we note Otis’s assistance on this issue.

¶ 11. Citing Magee v. State, 542 So.2d 228 (Miss.1989), Otis concedes that he has served terms of one year or more for both the kidnapping and robbery convictions. In Magee, the defendant committed a house burglary on August 9, 1983, and a robbery on August 13, 1983. Id. at 235. During a single, but consolidated hearing, the defendant entered separate pleas of guilty to both offenses. Id. The defendant was sentenced to seven years for each offense with the sentences to run concurrently. Id. On appeal, our supreme court held that, for purposes of the habitual offender statute, “serving one year or more on concurrent sentences for separate convictions amounts to serving more than one year on each sentence.” Id. at 236 (quoting King v. State, 527 So.2d 641, 645 (Miss.1988)).

¶ 12. We agree with the dissent that the precise issue we face was not squarely presented in Magee and that our issue is a matter of first impression. However, we find Magee to be helpful and persuasive. In Magee the defendant had committed only two prior felonies and received concurrent sentences for both of them. Each felony was committed at a separate time and arose out of separate incidents. Here Otis has committed seven prior felonies. He received concurrent sentences for two of the felonies and consecutive sentences for the other five. The two felonies for which he was given the concurrent sentences arose out of a single incident and occurred at the same time. Therein lies our problem. We approach the resolution of the problem by looking at the purpose of the statute as well as by analyzing the requirements of it.

¶ 13. First, as to the purpose, there can be little doubt that the statute is aimed at recidivists. Therefore, it was the repetitive criminal conduct that the legislature had in its sights in passing the habitual offender statute. This is borne out by the fact that, before a defendant can be given the severe sentence required by the statute, he must have committed at least three felonies. This brings us to our second inquiry, the statute’s requirements.

¶ 14. As already observed, the defendant must have been convicted of at least two felonies, separately brought and arising out of separate incidents, prior to committing the one for which he is given the life sentence. Of the prior felonies, whatever the number, one of them must be a crime of violence. Finally, the defendant must have been sentenced to and served one year or more in a penal institution for at least two prior felonies.

¶ 15. It is the consideration of the last requirement that causes us and the dissent to part company. We find that this last requirement has been satisfied when the defendant has been sentenced to and served one year or more for any two prior felonies whether they arise out of the same incident or not, provided that he has also committed at least two felonies that were separately brought and arose out of separate incidents. We do not read Mississippi Code Annotated section 99-19-83, Nico-laou, Riddle, or Walls as requiring that the sentences received for those felonies, which arise out of the same incident, be counted as one sentence. Rather, we read the statute and the cases construing it to require only that two or more felonies, which arise out of the same nucleus of operative facts, be counted as a single felony if the defendant is later charged as a habitual offender for the commission of subsequent felonies. But there is no logical reason for counting as a single sentence the two separate sentences that he received for the two crimes which he committed during his one-time crime spree because the purpose of the statute is to deter subsequent criminal conduct, not to deter the giving of concurrent sentences.

¶ 16. It is understandable why two crimes originating out of the same nucleus of operative facts should be counted as one crime for evaluating whether one should receive an enhanced penalty for his continual involvement in criminal activity. If the purpose of the statute is to deter subsequent criminal activity, it would be patently unfair to count multiple crimes — arising out of a common nucleus of operative facts and committed at the same time by an individual during one foray into criminal activity — as separate crimes because neither of the multiple crimes constitutes subsequent involvement in criminal activity. Such an interpretation is consistent with the laudable purpose of the statute: to stiffen the penalty for repeat offenders, not for current offenders who commit several crimes during their one foray into criminal activity.

¶ 17. In our case, either the robbery conviction or the kidnapping conviction, but not both, is a necessary predicate crime. In Nieolaou, Riddle, and Walls, each of the crimes, which arose out of a common nucleus of operative facts, had to be counted as separate crimes in computing the number of prior felonies. That is not our case. Here, unlike the defendants in Riddle and Walls, Otis has been convicted of more than two prior felonies, and only one of his crimes, which arose out of the same incident, must be counted in determining the requisite number of prior felonies. Moreover, even when both of his felonies, which arose out of a single incident, are counted as a single felony, the requirement of two prior felonies is still satisfied.

¶ 18. In Magee, the defendant served only one prison sentence, yet our supreme court said that was sufficient for habitual-offender sentencing purposes, notwithstanding the language of the habitual offender statute which requires the defendant to have previously been sentenced to and served separate terms of one year or more in a penal institution. Consequently, the principle to be drawn from Magee is that, for purposes of the habitual-offender sentencing statute, if the defendant has been convicted of at least two prior felonies separately brought and arising out of separate incidents, then habitual-offender sentencing is permissible even though only one year or more has been served as a result of concurrent sentencing. In other words, what is required are separate convictions for two prior felonies and separate sentences for two prior felonies; it is not a requirement that separate periods of time be physically served for the separate convictions.

¶ 19. Applying the teachings of Magee to our facts, we find that Otis qualifies for life-imprisonment-habitual sentencing. Prior to the instant charges, he had committed seven felonies with more than two of them being separately brought and arising out of separate incidents, and one of his felonies was a crime of violence. He had been sentenced to two separate terms of one year or more in the state penitentiary and had served more than one year of the sentences. If Otis’s predicate crimes involved only the prior convictions for robbery and kidnapping, we would have a different case. While the robbery and kidnapping convictions must count as one crime for determining the number of prior felonies, Magee makes it clear that serving only one-year of concurrent sentences is sufficient to satisfy the “sentence and time-served requirements” of the habitual-offender sentencing statute.

¶ 20. We see no reason to hold that concurrent sentences given for two separate crimes arising out of the same incident do not meet the sentencing requirements of the statute — when concurrent sentences given for two separate crimes arising out of different incidents do — since it is the subsequent criminal conduct of the defendant, not his prior sentence, that places him within the reach of the life-imprisonment habitual statute. This is especially true since only one year or more of concurrent sentences must be physically served in order to qualify for habitual sentencing. To hold otherwise, would be to assign a greater importance to the prior sentence than to the defendant’s subsequent criminal behavior. Such a construction of the statute would be nonsensical, and we will not assign such a nonsensical purpose to the legislature in passing the statute. Therefore, we find that the trial court did not err in sentencing Otis to life in prison as a habitual offender. This assignment of error is without merit.

2. The State’s Closing Argument

¶ 21. In this assignment, Otis complains that the following statement made by the prosecutor during closing argument was improper because it commented upon his failure to testify:

I want you to remember Kerry Riddle’s testimony.... She just didn’t see him passing, walking down the street, going down an aisle at Wal-Mart, or bump into him briefly and remember his face. She had time to look at him. She had enough time where she could tell the officer, she [sic] didn’t see just his face. She saw his height. She saw his build. She saw his complexion. She saw more than his forehead. She saw and can remember how the hat was sitting on his head. She saw sunglasses, but she told you they covered from just under the eyebrow to just under the eye, only about that long (gesturing). They didn’t cover much of his face at all. Mr. Otis is a big man and there was a lot of his face that was uncovered. She saw the hairline that she could see underneath the cap. A baseball cap doesn’t sit all the way down here. She noticed that hairline. She noticed that the hair she could see was short. And she noticed that when he spoke, his voice was deep. Now, y’all haven’t been able to hear his voice today.

¶ 22. The State counters that Otis did not preserve this error by objecting at the time the comment was made. Alternatively, the State argues that the statement was not a comment on Otis’s decision not to testify but instead was a part of the discussion of the overall evidence against Otis.

¶ 23. “It is the rule in this State that where an objection is sustained, and no request is made that the jury be told to disregard the objectionable matter, there is no error.” Minor v. State, 831 So.2d 1116, 1123 (¶ 22) (Miss.2002) (citing Perry v. State, 637 So.2d 871, 874 (Miss.1994)). “Furthermore, ‘[f]or this Court to consider claims of alleged erroneous comments of the prosecuting attorney in closing arguments, a contemporaneous objection must have been made; otherwise, the point is deemed waived.’ ” Id. at 1123 (¶ 22) (citing Banks v. State, 782 So.2d 1237, 1242 (Miss.2001)).

¶ 24. After reviewing this passage, we agree with the State that this argument is procedurally barred. When the State was making its closing argument, Otis did not object. Procedural bar notwithstanding, we also agree with the State that this comment, when viewed in context, does not appear to be a deliberate attempt by the State to comment on Otis’s right to remain silent. Even if we were to hold that the State crossed the line, we would also be constrained to hold that, considering the totality of the circumstances and the evidence here, the error was harmless. However, we caution prosecutors to be extremely careful in this area. While there may be some circumstances when the jury may get a chance to hear a defendant’s voice without the defendant actually testifying in his defense, those instances will be rare.

3. The Denial of Motion for a Mistrial

¶25. Otis next contends that during the cross-examination by his counsel of one of the State’s witnesses, the witness made an impermissible comment regarding Otis’s prior criminal history. Otis further concedes that he did not make a contemporaneous objection, but requested a mistrial at the close of the witness’s testimony because he did not want to draw undue attention to the comment. Acknowledging that the judge instructed the jury to disregard the witness’s comment, Otis contends that the error was not cured by this instruction.

Case law unequivocally holds that the trial judge is in the best position for determining the prejudicial effect of an objectionable comment. Thus, the judge is vested with discretion to determine whether the comment is so prejudicial that a mistrial should be declared. Where “serious and irreparable damage” has not resulted, the judge should “cure” or remedy the situation by “admonish[ing] the jury then and there to disregard the improp[riety].”

Alexander v. State, 602 So.2d 1180, 1182-83 (Miss.1992) (quoting Johnson v. State, 477 So.2d 196, 210 (Miss.1985)). Where a trial court sustains a defendant’s objection and instructs the jury to disregard the question, the remedial acts of the trial court are deemed sufficient to remove any taint of prejudice from the jurors’ minds as the jury is presumed to follow the trial court’s instructions. Strahan v. State, 729 So.2d 800, 808 (¶ 34) (Miss.1998).

¶ 26. The following exchange occurred between Police Chief Arlustra Henderson and counsel for Otis:

Q: Now the photos that were provided today, were actually provided to the DA’s office yesterday; is that correct?
A: That is correct.
Q: Now between ... let’s assume the identification was the day before you issued that arrest warrant, so I’m going to say July 20th of the year 2000, and the month of October, 2001, when the case was eventually presented to the grand jury, what additional investigation, if any did you do during those months?
A: We couldn’t find the suspect after we signed the affidavit. Detective Jones had a conversation some way.... Clinton Police Department had arrested the suspect on something similar to what we was working on. We asked the police department to put a hold on the suspect.
Q: To your knowledge, what was the outcome of those Clinton charges.
A: Detective Jones, you’ll have to talk to him about that. He handled that.
Q: I will ask him that.

(emphasis added).

¶ 27. In an attempt to clarify the statement made by Chief Henderson, Otis’s counsel questioned Assistant Police Chief Nolan Jones about the other charge. Jones stated that he had been unable to obtain a disposition on the charge. Jones went on to testify that he believed the other charge was strong-armed robbery and not armed robbery, but admitted that he was not aware of any conviction or any final outcome of the charge.

¶ 28. At the close of Jones’s testimony, Otis’s counsel requested a mistrial based upon Chief Henderson’s testimony which she deemed to be inappropriately referring to Otis’s prior criminal activities. The trial judge denied her motion upon finding it untimely but decided to instruct the jury to disregard Chief Henderson’s prior statement regarding the “similar charge.”

¶ 29. We find that no serious and irreparable damage resulted from Chief Henderson’s comment and that the judge adequately cured or remedied the situation by admonishing the jury to disregard the comment about similar charges. This finding is bolstered by the fact that defense counsel, after consulting with Otis, ratified the giving of the instruction as sufficient to cure the error.

J. Denial of Post-trial Motions

¶ 30. Otis’s next contention is that the trial court erred by denying his motion for judgment notwithstanding the verdict, or in the alternative, it erred by denying his motion for a new trial. According to Otis, the State failed to present sufficient factual evidence to the jury for it to find beyond a reasonable doubt that he committed the crime of armed robbery. He explains that the State presented no physical evidence that connected him to the scene of the crime and that the testimonial evidence of the victim’s identification was extremely insufficient.

¶ 31. On the issue of legal sufficiency, reversal can only occur when evidence of one or more of the elements of the charged offense is such that “reasonable and fair-minded jurors could only find the accused not guilty.” Hawthorne v. State, 835 So.2d 14, 21 (¶ 31) (Miss.2003) (citing Wetz v. State, 503 So.2d 803, 808 (Miss.1987)). “The standard of review for a denial of a directed verdict, peremptory instruction and a JNOV are identical.” Id. at 21 (¶ 31) (citing Coleman v. State, 697 So.2d 777, 778 (Miss.1997)).

¶ 32. “In regard to the weight of the evidence, it is well established that matters regarding the weight of the evidence are to be resolved by the jury.” Id. at 21 (¶ 32) (citing Neal v. State, 451 So.2d 743, 758 (Miss.1984)). However, “[a] motion for new trial challenges the weight of the evidence.”, Id. at 22 (¶ 32) (citing Sheffield v. State, 749 So.2d 123, 127 (¶16) (Miss.1999)). A reversal is warranted only if the trial court abused its discretion in denying a motion for new trial. Sheffield, at 127 (¶ 16) (citing Gleeton v. State, 716 So.2d 1083 (Miss.1998)). A new trial will not be granted unless the verdict is so contrary to the overwhelming weight of the evidence that an unconscionable injustice would occur by allowing the verdict to stand. Id. (citing Groseclose v. State, 440 So.2d 297, 300 (Miss.1983)). “However, if a jury’s verdict convicting a defendant is against the overwhelming weight of the evidence, then the remedy is to grant a new trial.” Hawthorne, 835 So.2d at 22 (¶ 33) (citing Collier v. State, 711 So.2d 458, 461 (Miss.1998)).

¶ 33. We find that the trial court did not err in denying Otis’s motions for judgment notwithstanding the verdict or, in the alternative, motion for new trial. There was sufficient evidence presented by the State for reasonable and fair-minded jurors to find Otis guilty of armed robbery. Assistant Police Chief Nolan Jones testified that he conducted a photo lineup and that the victim immediately identified Otis as the perpetrator of the armed robbery. Kerry Riddle gave a detailed physical description of the perpetrator, testified to what the perpetrator was wearing, and affirmed that Otis was the culprit of the crime by identifying him at trial. The jury returned a verdict of guilty after being adequately instructed by the trial court on how to consider evidence. We decline to disturb its findings. Further, we cannot say that permitting the verdict to stand would sanction an unconscionable injustice. This assignment of error lacks merit.

5. The Appropriateness of the State’s Questions during Voir Dire

¶ 34. Otis next contends that the trial court erred in allowing the State to continue questioning during voir dire after the State had the jury commit to the quantity of evidence on which it would or would not convict. Moreover, he points out that the trial court failed to instruct the jurors that the State could not ask them to make such promises. We discuss in the following paragraph what transpired during voir dire.

¶ 35. The prosecution explained to the jury that the case involved an eyewitness’s identification of an assailant who wore sunglasses and a baseball cap and asked whether members of the venire believed that the sunglasses or the baseball cap would necessarily keep the eyewitness from identifying him later if she saw him without these accessories. He then asked members of the venire whether they, knowing the facts earlier specified about the assailant, would consider the victim’s identification as insufficient if it was the only evidence the State had to tie Otis to the robbery. Subsequently, the prosecution asked members of the venire whether they could tell him whether they could consider all of the evidence before deciding whether the evidence was sufficient. At this juncture, the trial court held a bench conference whereby the judge asked the prosecutor to clarify his questioning of the members of the venire to ensure that they understood that they were to look at all the evidence before rendering a decision, instead of basing their opinion on the production of an identifying mark of the assailant. The prosecutor then proceeded with his questioning in conformity with the judge’s direction.

¶ 36. Our supreme court has directed that prosecuting attorneys avoid questions seeking a promise or commitment from the jury to convict if the State proved certain facts. West v. State, 553 So.2d 8, 22 (Miss.1989) (citing Murphy v. State, 246 So.2d 920 (Miss.1971)). However, the court has often held that a party waives any and all claims regarding the composition of his jury if he fails to raise an objection before the jury is sworn. See Shaw v. State, 540 So.2d 26, 27 (Miss.1989); Thomas v. State, 517 So.2d 1285, 1287 (Miss.1987); Pickett v. State, 443 So.2d 796, 799 (Miss.1983).

¶ 37. At no time during the voir dire did Otis object to the prosecutor’s line of questioning, nor did he ever request a curative instruction by the trial court. We note that the trial court has broad discretion in passing on the extent and propriety of questions that are addressed to the venire. Jones v. State, 381 So.2d 983, 990 (Miss.1980). An abuse of discretion will only be found where the record shows clear prejudice resulting from undue lack of constraint. Id. We find no abuse of discretion here.

6. Cumulative Effect

¶ 38. Otis finally urges this Court to deem the cumulative effect of the errors that he has assigned to be sufficient for reversal or remand.

¶ 39. In Wilburn v. State, 608 So.2d 702, 705 (Miss.1992), the court held that “individual errors, not reversible in themselves, may combine with other errors to make up reversible error.” The question that must be asked in these instances is whether the defendant was deprived of a “fundamentally fair and impartial trial” as a result of the cumulative effect of all errors at trial. Id. If there is “no reversible error in any part, there is no reversible error to the whole.” McFee v. State, 511 So.2d 130, 136 (Miss.1987).

¶ 40. We have found no reversible error among any of the allegations of error made by Otis. Consequently, there can be no cumulative error as there was no error in any of the separate points of contention. Therefore, we affirm Otis’s conviction and sentence as a habitual offender under Mississippi Code Annotated section 99-19-83.

¶ 41. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF LIFE AS AN HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $10,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY. *

BRIDGES, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. McMILLIN, C.J., CONCURS IN PART AND DISSENT IN PART WITH SEPARATE OPINION JOINED BY KING AND SOUTHWICK, P.JJ., AND THOMAS, J.

McMILLIN, C.J.,

CONCURRING IN PART AND DISSENTING IN PART:

¶ 42. I concur with the majority that Otis’s conviction must be affirmed. I respectfully disagree that Otis was properly sentenced under the more harsh provisions pertaining to habitual offenders found in Section 99-19-83 of the Mississippi Code. It is my view that Otis could only have been sentenced under Section 99-19-81 since the record fails to show that he has been previously convicted of two felonies arising out of separate incidents, and that, as to each of those convictions, he has served one year or more. The majority finds that the requirement of serving a year or more on two prior felony convictions is a “stand alone” requirement that can be met by serving two sentences even though the two convictions arise out of the same incident. According to the majority, the requirement of two previous unrelated convictions is a separate matter of inquiry that can be met by evidence of yet a third felony conviction unaccompanied by any proof that the defendant served time as to it. I do not think that a fair reading of the statute permits this interpretation.

¶43. The record shows that Otis had been previously convicted of the two crimes of kidnaping and armed robbery and was sentenced to (and, in fact, served) more than one year as to each conviction. The majority concedes that these two charges arose out of a single incident and, thus, do not meet the requirement that there must be two cónvictions arising out of separate incidents. Instead, for this aspect of the statute, the majority treats these two convictions as but a single one and looks to proof of a number of different convictions to supply the necessary second conviction, none of which were accompanied by proof that Otis served time as to any of the convictions. (The majority recites some of the details of these convictions and notes that Otis appeared to have been sentenced to serve time on those convictions concurrently with the robbery and kidnaping conviction; however, the State in its brief concedes that “because of some sentencing oversight, the remaining felony convictions there was no time served towards those sentences.”)

¶ 44. For purposes of analysis, the pertinent language of Section 99-19-88 identifying those eligible for punishment under its provisions is as follows:

Every person convicted ... of a felony who shall have been convicted twice previously of any felony ... upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more....

Miss.Code Ann. § 99-19-83 (Rev.2000).

¶ 45. Certainly, it would have been clearer had the legislative drafter said, “and who shall have been sentenced to and served separate terms of one (1) year or more ... on each of the aforesaid separately brought charges ....” However, a plain reading of the statute, in my view, suggests a sufficient nexus between the requirement of two separately occurring felonies and the requirement of two separate one year sentences to compel the conclusion that the separate sentences must have resulted from the same felony charges relied upon by the State to show the defendant’s propensity for criminal behavior.

¶ 46. This interpretation of the statute has nothing to do with the question of whether the requisite separate sentences may or may not be served concurrently. As the majority has correctly observed, the Mississippi Supreme Court has answered that question in Magee v. State and in King v. State, by saying that two sentences, even if they are being served concurrently, constitute “separate terms” of confinement within the meaning of Section 99-19-83. Magee v. State, 542 So.2d 228, 236 (Miss.1989); King v. State, 527 So.2d 641, 645-46 (Miss.1988).

¶ 47. Neither ease squarely addresses the situation where the concurrently-served sentences arose out of two related charges and the requisite “second” felony conviction was, in fact, a third crime that met the “separate incident” test but which did not result in the defendant serving a year or more in confinement. The King decision answers only the question of “whether serving one year or more on concurrent sentences for separate convictions amounts to serving more than one year on each sentence.” King v. State, 527 So.2d at 645 (emphasis added). Although, in a strictly literal sense, all felony convictions are separate, it would be my view that the term “separate convictions” in this instance, when read in context, means the same thing as the phrase “charges separately brought” found in Section 99-19-83.

¶ 48. Thus Magee and King do not appear to support the result reached by the majority in this case. However, because they deal with a different, though related, issue, neither can it be said those decisions affirmatively exclude that outcome. Rather, I contend that the proper outcome hinges on a question of first impression regarding the proper application of Section 99-19-83 to the undisputed facts of this case. Based on my view of what the statute requires, I respectfully conclude the majority has answered this first impression question incorrectly. Rather than affirm as to the validity of Otis’s sentence, I would vacate the sentence and remand for re-sentencing under Section 99-19-81. Nathan v. State, 552 So.2d 99, 106 (Miss.1989).

KING AND SOUTHWICK, P.JJ., AND THOMAS, J., JOIN THIS SEPARATE WRITTEN OPINION.


author: MYERS, J.,

text:
    Harry Allen GRAY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00409-COA.
    Court of Appeals of Mississippi.
    Aug. 26, 2003.
    Anthony J. Buckley, Laurel, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
   ON MOTION FOR REHEARING

MYERS, J.,

for the Court.

¶ 1. We deny the motion for rehearing. The original opinion is withdrawn and this opinion is substituted therefor.

SUMMARY

¶ 2. Harry Allen Gray was convicted of fondling a fourteen year old girl by the Circuit Court of the First Judicial District of Jones County. On appeal, Gray raises only one issue for this Court to consider: Whether the trial court erred in refusing to suppress Gray’s confession as involuntary, as it was the product of police coercion and implied promises.

Facts

¶ 3. In the early morning hours of August .6, 1999, Gray arrived at the home of Betty Roe. There is some controversy as to whether or not Gray had been invited to come there, but he was welcomed in, nevertheless. Gray, Roe, and the victim, Jane Doe, watched television for a little while. According to Doe, she then went to bed. A few minutes later, according to Doe’s version of the facts, Gray snuck into the bedroom where she was sleeping and raped her. According to Gray, he and Doe went voluntarily into the bedroom, where they began talking. The conversation led to kissing, and Doe’s moving Gray’s hand over her breasts and putting Gray’s hand on her genitals. Gray admits to inserting a finger into Doe’s vagina, but he states that nothing else happened.

¶ 4. The next evening, Gray was arrested for raping Doe. Jones County Deputy Sheriff Wayne Black read Gray his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), handcuffed him, and placed him into the back of the police cruiser. Black then took Gray to the sheriffs station, where Gray was read and then signed a waiver of his Miranda rights. Gray made a tape recorded statement where he repeated his version of the facts. Gray claims he did this only because Deputy Black promised him that if he confessed, he would be tried only on a charge of fondling instead of a charge of rape.

¶ 5. The trial court held a hearing on Gray’s motion to suppress his confession. At the end of that hearing, the motion was denied.

Legal Analysis

¶ 6. When we review a judge’s ruling concerning the suppression of a confession, we will uphold the ruling if it is supported by substantial credible evidence when evaluating the totality of the circumstances. Greer v. State, 818 So.2d 352, 355 (¶ 8) (Miss.Ct.App.2002). We will not reverse a trial judge’s decision to not suppress evidence as long as the correct principles of law were applied and the finding is factually supported by substantial evidence. Carlisle v. State, 822 So.2d 1022, 1026 (¶ 11) (Miss.Ct.App.2002) (citing Palm v. State, 748 So.2d 135, 142 (¶ 25) (Miss.1999)). Where contradictory evidence has been presented, we will generally affirm. Id. (citing Lesley v. State, 606 So.2d 1084, 1091 (Miss.1992)).

¶ 7. We will allow a confession to stand as long as the confession was given voluntarily, and is not the product of promises, threats, or inducements. Richardson v. State, 722 So.2d 481, 487 (¶ 11) (Miss.1998). In the present case, the State presented evidence that Gray had been read his Miranda rights. He did not make any statements until he signed a written waiver of his rights. Deputy Black stated on the stand that he made no promises, that he did not threaten Gray, nor did he in any way induce the confession. Gray contradicted all these assertions, and he was the only person to do so. Even if we do not consider Deputy Black’s version of events to be substantial evidence, our prior decisions require us to affirm the decision to admit the confession since the facts are contradicted. As such, the judgment of the trial court is affirmed.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF JONES COUNTY OF CONVICTION OF FONDLING AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE FIRST TEN YEARS TO SERVE AND THE REMAINING FIVE YEARS TO BE SUSPENDED AND FIVE YEARS’ PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

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

      . The names of the victim and the owner of the home where the crime occurred have been changed to protect the minor victim’s identity.


author: KING, P.J.,

text:
    John STEPHENS, Appellant, v. CARLISLE CORPORATION and Wendelta, Inc., Appellees.
    No. 2002-CA-00677-COA.
    Court of Appeals of Mississippi.
    Aug. 26, 2003.
    Dana J. Swan, Clarksdale, attorney for appellant.
    Silas W. McCharen, Jackson, Shanda L. Lewis, attorneys for Appellee.
    Before KING, P.J., BRIDGES and IRVING, JJ.
   KING, P.J.,

for the court.

¶ 1. John Stephens was discharged from his employment, and brought suit for wrongful discharge, breach of contract and defamation. The Coahoma County Circuit Court held Stephens was an employee at will, and granted summary judgment for the employer. Stephens appeals, asserting that the employee handbook created an employment contract between himself and the appellants, and material facts existed as to whether his termination was proper. We find that the employee handbook did not create an employment contract, and therefore affirm the circuit court.

STATEMENT OF FACTS

¶ 2. The Appellees (Carlisle) owned and operated several Wendy’s restaurant franchises in Mississippi. Stephens was an area manager, with oversight responsibility for six Wendy’s restaurants in Meridian, Columbus, Amory and Starkville, including one on the campus of Mississippi State University.

¶ 3. In the fall of 1996, Stephens called John Hughes, the chief operating officer of Carlisle, and indicated that Henrietta Bradford manager of the Columbus Wendy’s, would be calling to relay sexual harassment complaints against Stephens. As indicated by Stephens, Bradford called Hughes to alert him to allegations of sexual misconduct by Stephens. However, Hughes, whose office was located in Memphis, declined to discuss the matter over the telephone, and instead arranged his schedule to meet with Bradford in Columbus.

¶ 4. After meeting with Bradford, Hughes contacted Stephens and suggested it would be appropriate for him to change his conduct and informed him that sexual harassment was a reason for dismissal.

¶ 5. Sometime later, Hughes received a call from Vickey Clark, director of food services at Mississippi State University, who complained that Stephens had engaged in sexual harassment of an employee there. After receiving this report, Hughes consulted with company officials, and then called and informed Stephens of his dismissal.

¶ 6. Stephens sued Carlisle in Coahoma County Circuit Court. After completion of discovery, Carlisle moved for summary judgment, stating that the evidence indicated that Stephens was an at will employee, who could be discharged without establishing just cause. The trial court agreed and granted the motion for summary judgment.

DISCUSSION

¶ 7. This court reviews de novo the grant or denial of a motion for summary judgment. Cities of Oxford v. Northeast Miss. Elec. Power Ass’n., 704 So.2d 59, 64 (Miss.1997). If the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, show there is no genuine issue as to any material fact, then summary judgment is appropriate. Id. See also M.R.C.P. 56.

¶ 8. In the absence of a contract to the contrary, all employment in Mississippi is at will. McCrory v. Wal Mart Stores, Inc., 755 So.2d 1141(¶ 6) (Miss.Ct.App.1999). However, the Mississippi Supreme Court has held where an employee handbook creates specific grounds and procedures for termination, an employment contract may be found and the common law rule abrogated by the contracting parties. Bobbitt v. The Orchard, Ltd., 603 So.2d 356, 360-61 (Miss.1992). However, when that handbook, specifically disclaims any intent to alter the employment at will doctrine, an employee may not generally maintain an action for wrongful termination. Byrd v. Imperial Palace of Miss., 807 So.2d 433(¶ 18) (Miss.2001); McCrary, 755 So.2d at 1144-45 (¶ 16).

¶ 9. The employee handbook in this case contained such a disclosure, which reads, “Since employment at the Carlisle Corporation is based on mutual consent, either the employee or the employer is privileged to terminate the employee.” The trial court found this language to be sufficient to preclude the employee handbook from constituting an employment contract, and thereby altering the employment at will doctrine.

¶ 10. Indeed, it should be noted that in his deposition, Stephens acknowledged that he had no written contract with Car-lisle and could leave its employ whenever he so chose, and that the company was likewise free to terminate his employment whenever it so chose.

¶ 11. In a summary judgment proceeding, the plaintiff must rebut the defendant’s claim that no genuine issue of material fact existed by producing supportive existence of significant and probative value. Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1355 (Miss.1990). Should the plaintiff fail to rebut defendant’s claim that no genuine issue of material fact existed, then summary judgment is appropriate. Spartan Foods Sys., Inc. v. American Nat. Ins. Co., 582 So.2d 399, 402 (Miss.1991). In this case Stephens failed to rebut Carlisle’s claim that there were no disputed issues of material fact; accordingly, summary judgment was appropriately granted.

1112. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT IS AFFIRMED. THE APPELLANT IS TAXED WITH ALL COSTS OF THIS APPEAL.

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


author: GRIFFIS, J.,

text:
    Edna KENT, Individually and as Mother and Next Friend of Candice N. Cain, A Minor, Appellant, v. BAPTIST MEMORIAL HOSPITAL-NORTH MISSISSIPPI, INC. and Dr. J. Keith Mansel, Appellees.
    No. 2002-CA-00936-COA.
    Court of Appeals of Mississippi.
    Sept. 2, 2003.

      William P. Zdancewicz, David Wayne Camp, for appellant.
    R. Bradley Best, Oxford, S. Duke Goza, Jack F. Dunbar, Shelby Kirk Milam, attorneys for appellee.
    Before SOUTHWICK, P.J., LEE and GRIFFIS, JJ.
   GRIFFIS, J.,

for the court.

¶ 1. Edna Kent filed a medical malpractice claim on behalf of her daughter, Candice Cain, against Baptist Memorial Hospital — North Mississippi, Inc. (“Baptist”) and Dr. Keith Mansel. The trial court granted Baptist’s motion for directed verdict at the close of the plaintiffs case. The jury returned a verdict in favor of Dr. Mansel. Ms. Kent now appeals asserting several assignments of error. Finding no error, we affirm.

FACTS

¶ 2. On September 27, 1993, Candice Cain was sixteen years old. She was at home with her parents when she suffered a severe diabetic seizure and went into septic shock. She was transported by ambulance from her home to the emergency room at Baptist. Upon arrival at Baptist, Candice was in a non-responsive, life threatening state. She was admitted to Baptist’s intensive care unit by Dr. Robert Cooper, a partner of Dr. Gerald Hopkins who was Candice’s primary care physician. A number of tests were run on Candice, and two other specialists provided medical care to her that night. Dr. Windham performed a lumbar puncture. Dr. Keith Mansel, a board certified critical care pul-monologist, made a respiratory assessment of Candice. Her condition was monitored throughout the night.

¶ 3. The next morning, Dr. Hopkins took over Candice’s care from Dr. Cooper. Dr. Hopkins had been Candice’s primary care physician since she was two years old. Dr. Hopkins treated Candice for her diabetes. Dr. Hopkins ordered a number of tests including a chest x-ray, pulse MRI of the brain, and an electroencephalogram (EEG) which revealed that Candice was in a state of encephalopathy with no intelligent response to family or any stimuli of any kind. Candice’s illness was a mystery.

¶ 4. As the day progressed, Candice began having significant trouble. At approximately 10:00 p.m., Candice’s blood pressure dropped substantially. Melissa Smith, the nurse on duty, reported this to Dr. Cooper. Dr. Cooper instructed her to call Dr. Mansel. Dr. Mansel immediately began further treatment of Candice. At approximately 10:30 p.m., Candice began to slip into respiratory distress. At approximately 11:30 p.m., Candice’s condition was critical. Dr. Mansel instructed the staff to prepare to intubate Candice, for respiratory support. Dr. Mansel then in-tubated Candice with a size 8.0 endotra-cheal tube, with the use of a bronchoscope, and connected her to a mechanical ventilator. Dr. Mansel’s notes reflect that the endotracheal tube was placed “without difficulty,” which he testified meant that the tube was placed easily without any force applied using only one attempt to place the tube.

¶ 5. Thereafter, Dr. Mansel was concerned that Candice required a higher level of care than he and the other physicians at Baptist could provide. Dr. Mansel then made arrangements for Candice to be transported via helicopter to the pediatric unit at Vanderbilt University Hospital in Nashville, Tennessee.

¶ 6. When Candice arrived at Vanderbilt, the admitting physician noticed swelling, distortion of organs and dried blood in Candice’s airway. He chose not to remove the endotracheal tube. Once her condition stabilized, several days later, the physicians at Vanderbilt removed the endotra-cheal tube to determine if Candice could breath on her own. Unable to breath without aid, the Vanderbilt doctors intu-bated her again with a 6.5 millimeter tube. Five days later that tube was removed, and she was then intubated with a 6.0 millimeter tube.

¶ 7. After the endotracheal tube was finally removed, the Vanderbilt doctors determined that Candice’s vocal cords were damaged. Candice underwent several surgeries to correct the injury, including laser surgeries to separate the fused vocal cords and reconstructive surgery of the vocal cords using harvested costicartilage from Candice’s ribs.

¶ 8. On September 26, 1995, Candice’s mother, Edna Kent, filed a lawsuit on behalf of Candice alleging that Baptist and Dr. Mansel were negligent in the care of Candice. The claim alleged that the intu-bation tube Dr. Mansel used was too large for Candice’s height and weight and that the large tube used by Dr. Mansel proximately caused Candice’s injuries. At trial, the plaintiff presented three of the Vanderbilt doctors as expert witnesses. Dr. Joseph Tobias, Dr. Malcolm Packer, and Dr. Jay A. Werkhaven testified that, in their opinion, Dr. Mansel deviated from the appropriate standard of care in the intubation of Candice by using a size 8.0 endotracheal tube. Dr. Mansel testified on his own behalf and offered his expert opinion that he did not deviate from the standard of care.

¶ 9. Dr. Joseph Tobias, a board certified physician in pediatrics, anesthesiology, critical care medicine and pain management, was Candice’s admitting physician at Vanderbilt. Dr. Tobias testified that he had an immediate concern about the size of the endotracheal tube and that he also observed swelling, distortion and blood in Candice’s airway. Dr. Tobias opined that the damage to Candice’s vocal cords resulted from the insertion of an endotra-cheal tube that was too large, and the trauma occurred when the tube was placed into Candice’s throat. Dr. Tobias testified that a doctor should base the size of the endotracheal tube on the patient’s age, with consideration given to the actual size of the patient. He testified that the smaller the patient then the smaller the tube should be. Dr. Tobias testified that for Candice’s age, height and weight, the proper size endotracheal tube was between 6.0 to 7.0 millimeters.

¶ 10. Dr. Malcolm Packer, a board certified physician in anesthesia, pediatrics and pediatric critical care, also cared for Candice during her stay at Vanderbilt. Dr. Packer testified that Candice suffered severe scarring of the airway due to the placement of an endotracheal tube which was too large. Dr. Packer testified the standard of care for Candice, considering her age and size, required the use of a 6.5 to 7.0 millimeter size tube. He further testified that the use of an 8.0 millimeter tube was a deviation from the standard of care.

¶ 11. Dr. Jay A. Werkhaven, a board certified otolaryngologist, treated Candice after she was released from Vanderbilt. Dr. Werkhaven performed the surgeries on Candice’s vocal cords. Dr. Werkhaven testified that he observed raw cartilage exposed in Candice’s throat. In his opinion, Dr. Werkhaven testified that the damage was caused by the 8.0 millimeter tube placed by Dr. Mansel. Dr. Werkhaven testified the vocal cords were raw and that scar tissue was forming which caused the vocal cords to fuse together. Dr. Werkha-ven testified that the standard of care in the intubation of a patient was to evaluate their size, and not determine tube size solely based on age.

¶ 12. Each of the plaintiffs expert physicians admitted that they had no training as a pulmonologist or a critical care pulmo-nologist, the medical specialties of Dr. Mansel. Each also admitted they had formed their opinions without reviewing Candice’s medical records at Baptist.

¶ 13. At the close of the plaintiffs case, Baptist moved for a directed verdict. Baptist argued that the plaintiff had failed to prove that Baptist was vicariously liable for Dr. Mansel’s alleged medical negligence. The circuit court granted Baptist’s motion and dismissed Baptist. Dr. Mansel also moved for a directed verdict, but it was denied.

¶ 14. Dr. Mansel proceeded to present his evidence. Dr. Mansel testified that he is a board certified physician in pulmonolo-gy, critical care pulmonology, and internal medicine. He was educated at the University of Mississippi Medical Center, and he served a residency in internal medicine at the Mayo Clinic, where he graduated first in his class.

¶ 15. Dr. Mansel testified that the standard of care for critical care pulmonologist in emergency situations is to select the largest endotracheal tube that can be placed in a patient’s airway “without difficulty.” He explained that this is the golden rule because when a patient is in respiratory distress, the patient needs the most oxygen possible without damaging the airway. Dr. Mansel further testified that his decision to select the 8.0 millimeter tube was consistent with his training at the Mayo Clinic. To demonstrate this, an excerpt from a recognized authoritative treatise, Intensive Care Medicine, was presented to the jury. A table in that text recommended tube sizes depending upon the age of the patient. Patients age fourteen and up had a recommendation of a size 8.0 to 9.0 millimeter tube. Dr. Mansel also testified that he intubated Candice with the 8.0 millimeter tube without any resistance and on the first attempt. Dr. Mansel testified that if he had encountered any difficulty, he would have immediately removed the tube and utilized the next smaller size tube. Dr. Mansel further attributed her swollen throat and injury to her diabetic condition.

¶ 16. Nurse Melissa Smith assisted Dr. Mansel with Candice’s intubation. She testified she witnessed the intubation of Candice and recorded in the medical records that Dr. Mansel had inserted the tube “without difficulty.” Nurse Smith testified that “without difficulty” meant that “the tube was placed easily without any force applied.”

¶ 17. At the conclusion of the trial, the jury retired to deliberate. After five minutes the jury informed the court that it had reached a decision and rendered its verdict in favor of Dr. Mansel. The name “defendant” on the verdict form was underscored four times. The plaintiff moved for a judgment notwithstanding the verdict or in the alternative a new trial, which the lower court denied.

ANALYSIS

I. Whether the trial court erred in directing a verdict on behalf of the defendant Baptist Memorial Hospital— North Mississippi, Inc.

¶ 18. On appeal, we conduct a de novo standard of review of motions for directed verdict. Sperry-New Holland v. Prestage, 617 So.2d 248, 252 (Miss.1993). When deciding whether the granting of a motion for directed verdict was proper by the lower court, this Court considers the evidence in the light most favorable to the non-moving party and gives that party the benefit of all favorable inferences that may be reasonably drawn from the evidence presented at trial. Id. If the favorable inferences have been reasonably drawn in favor of the non-moving party so as to create a question of fact from which reasonable minds could differ, then the motion for directed verdict should not be granted and the matter should be given to the jury. Id.; Pace v. Financial Sec. Life of Mississippi 608 So.2d 1135, 1138 (Miss.1992); Vines v. Windham, 606 So.2d 128, 131 (Miss.1992).

¶ 19. Here the plaintiff claims that Baptist can be liable for the alleged negligence of Dr. Mansel under the theory of vicarious liability. Kent cites Hardy v. Brantley, 471 So.2d 358 (Miss.1985) and Gatlin v. Methodist Medical Center, Inc., 772 So.2d 1023 (Miss.2000).

¶ 20. In Hardy, the patient was taken to the emergency room at Hinds General Hospital with severe stomach pains. Hardy, 471 So.2d at 360. The patient was treated by the emergency services physician, who concluded that the patient was suffering from heat exhaustion and sent him home after treatment with medications. Id. The patient died the next afternoon. The cause of death was a perforated duodenal ulcer, not heat exhaustion. Id. at 361. Considering the hospital’s vicarious liability, the supreme court held:

Where a hospital holds itself out to the public as providing a given service, in this instance, emergency services, and where the hospital enters into a contractual arrangement with one or more physicians to direct and provide the service, and where the patient engages the services of the hospital without regard to the identity of a particular physician and where as a matter of fact the patient is relying upon the hospital to deliver the desired health care and treatment, the doctrine of respondeat superior applies and the hospital is vicariously liable for damages proximately resulting from the neglect, if any, of such physicians. By way of contrast and distinction, where a patient engages the services of a particular physician who then admits the patient to a hospital where the physician is on staff, the hospital is not vicariously liable for the neglect or defaults of the physician.

Id. at 371.

¶ 21. In Gatlin, the patient was taken to the emergency room at Methodist Medical Center (“Methodist”) after being shot. Gatlin, 772 So.2d at 1025 (¶ 1). Several doctors began surgery to repair the patient’s injuries. Id. at 1025(¶ 2). Dr. David Carlson was the anesthesiologist on call and assisted with the surgery. Id. The patient subsequently died. His parents filed suit against Dr. Carlson and Methodist. However, the trial judge directed a verdict in favor of Methodist. Id. at 1025-26 (¶ 5). The supreme court reversed, holding that a reasonable trier of fact could have found Methodist liable under Hardy in that the extensive nature of Dr. Carlson’s practice at Methodist could support a finding of vicarious liability, that Methodist held itself out to the public as providing emergency services, and that the patient obtained Methodist’s services without regard to or even knowledge of the identity of any particular physician at the hospital. Gatlin, 772 So.2d at 1030(¶ 22).

¶ 22. In this appeal, the plaintiff asserts that this case is analogous to Hardy and Gatlin, and it was error for the judge to direct a verdict for Baptist. Ms. Kent argues that Dr. Mansel was one of two pulmonologists who practiced at Baptist, he leased his office space from the hospital, he was a medical director of three units, and he derived all his income through his practice there. Ms. Kent argues that this is the “very extensive nature of practice and relationship” that supports a finding that Baptist should be held vicariously liable for the negligence of Dr. Man-sel according to Gatlin.

¶ 23. The reasoning of Hardy and Gat-lin focuses on the patient’s motivation for utilizing the hospital’s services. Both of these eases consider whether the patient came to the hospital for treatment from a particular physician or whether they sought services from a physician who happened to be on staff at the particular hospital. Gatlin, 772 So.2d at 1028(¶ 15); Hardy, 471 So.2d at 371. In both of these cases, the patient indiscriminately sought the care of any physician on duty at the hospital’s emergency room.

¶ 24. Hardy and Gatlin are distinguishable from the present appeal. Candice initially sought treatment from Baptist’s emergency room and the physician assigned. However, she was admitted to Baptist under the care of Dr. Cooper, a partner of her primary care physician. Within several hours, well before the alleged act of malpractice, Candice’s care was under the supervision and control of her long time primary care physician, Dr. Hopkins. It was her physicians, Dr. Cooper and Dr. Hopkins who sought consultation from Dr. Mansel. Therefore, Dr. Mansel did not provide medical care to Candice simply as the physician assigned by Baptist, but was instead providing treatment at the request of Dr. Hopkins or his partner. We find that Trapp v. Cayson, 471 So.2d 375 (Miss.1985), is controlling authority here.

¶ 25. In Trapp, John Cayson was hospitalized at North Mississippi Medical Center where he underwent tests at the direction of his primary care physician, Dr. William Gary. Id. at 376. Dr. Gary ordered an arteriogram from Dr. James T. Trapp at Radiology of Tupelo. Id. During the arteriogram, Cayson had an adverse reaction and eventually was paralyzed. Id. at 377. Cayson filed suit against Dr. Trapp and North Mississippi Medical Center. The trial court directed a verdict in favor of the North Mississippi Medical Center. Id. The supreme court affirmed, finding that unlike Hardy, the hospital did not select the radiologist for the patient; instead, the physician who ordered the test requested a specific radiologist. Id. at 384.

¶ 26. After our review, we find that Candice was treated by Dr. Mansel as a result of the direct request or selection by Candice’s primary care physician, Dr. Hopkins or his partner, and not Baptist. Therefore, we find no error in the trial court’s decision to direct a verdict in favor of Baptist.

II. Whether the trial court erred in refusing to allow plaintiff to testify concerning her medical bills pursuant to Miss. Code Ann. § il-9-119 thereby limiting the amount of damages the plaintiff was allowed to present to the jury.

¶ 27. Statutory interpretation is a question of law, and we review questions of law de novo. Donald v. Amoco Prod. Co., 735 So.2d 161, 165(¶ 7) (Miss.1999). This standard of review requires that we examine all evidence in the record in a light most favorable to the non-moving party. Moore ex rel. Benton County v. Renick, 626 So.2d 148, 151 (Miss.1993).

¶ 28. Mississippi Code Annotated § 41-9-119 (Rev.2001) provides that “proof that medical, hospital, and doctor bills were paid or incurred because of any illness, disease, or injury shall be prima facie evidence that such bills so paid or incurred were necessary and reasonable.” This presumption is rebuttable; however, to do so, more than speculation and credibility attacks must be offered. Boggs v. Hawks, 772 So.2d 1082, 1087(¶ 19) (Miss.Ct.App.2000). The defendant can rebut such damages by putting forward proper evidence tending to negate the necessity and reasonableness of the expenses. Jackson v. Brumfield, 458 So.2d 736, 737 (Miss.1984). See also Moody v. RPM Pizza, Inc., 659 So.2d 877, 886 (Miss.1995).

¶ 29. In her next assignment of error, Ms. Kent argues that the trial court erred in precluding her from presenting to the jury all the medical bills incurred by her daughter at Vanderbilt. Ms. Kent contends that Dr. Mansel failed to rebut the necessity and reasonableness of the medical bills she offered into evidence and, therefore, they should have been admitted into evidence. However, the question here does not pertain to the necessity and reasonableness of Candice’s medical expenses; rather, it is whether her injuries and resulting medical expenses were proximately caused by Dr. Mansel’s negligence. “[R]e-coverable damages must be reasonably certain in respect to the efficient cause from which they proceed, and ... the burden is on the claimant to show by a preponderance of the evidence that the person charged was the wrongful author of that cause.” Blizzard v. Fitzsimmons, 193 Miss. 484, 487, 10 So.2d 343, 345 (1942). See also Brake v. Speed, 605 So.2d 28, 32 (Miss.1992) (finding a defendant cannot be held liable for the whole of a series of consecutive, and not concurrent, happenings when he is liable if at all, only for a part); Jackson v. Swinney, 244 Miss. 117, 124, 140 So.2d 555, 557 (1962) (rejecting conjecture as a basis for liability).

¶ 30. In this case, Candice was diabetic, and she came to Baptist as a result of complications from her diabetes. Every doctor who was a witness at this trial testified that because of Candice’s diabetic seizure and resulting coma, hospitalization was the only option for her care. The record indicates that Candice received treatment for a variety of other medical conditions at Vanderbilt unrelated to the alleged negligent intubation, including (1) diabetic renal failure, (2) diagnosis and treatment of a subsequent diabetic seizure at Vanderbilt, and (3) other treatment and management of her diabetic condition and related medical complications. The evidence shows that Candice would have incurred medical bills regardless of the injury to her throat. Dr. Mansel did not cause Candice’s diabetes, her seizure or the complications that resulted therefrom. Accordingly, Candice’s only recoverable damages were those which resulted because of or due to Dr. Mansel’s alleged negligence. Any medical expenses relating to her other treatment were inadmissable and non-recoverable.

¶ 31. At trial, the parties stipulated that Candice incurred $34,288 in medical expenses for the medical treatment to her airway. There was substantial evidence presented to the jury as to the actual medical expenses incurred by Candice relating to her claim against Dr. Mansel. The exclusion of any amount above this figure was not an abuse of discretion by the court. Moreover, since the jury returned a verdict in favor of Dr. Mansel, any error relating to the admission of evidence solely as it relates to damages is moot. If any such error existed it was harmless, as it did not affect the outcome of the jury’s verdict. Therefore we find no merit in this assignment of error.

III. Whether jury instruction D2-2 was not a correct statement of the law in Mississippi

¶32. This issue was never presented to the trial court by way of objection to the jury instructions, or otherwise. This error was not asserted in Ms. Kent’s motion for judgment notwithstanding the verdict. Accordingly, Ms. Kent is barred from presenting this issue for the first time on appeal. Triplett v. City of Vicksburg, 758 So.2d 399, 401(¶ 9) (Miss.2000).

TV. Whether the verdict was supported by bias and prejudice rather than careful thought and deliberation?

¶33. Where an appellant challenges a jury verdict as being the product of bias, prejudice or improper passion, the supreme court has held that it will show great deference to the jury verdict by resolving all conflicts in the evidence and every permissible inference from the evidence in the appellee’s favor. Wal-Mart Stores, Inc. v. Johnson, 807 So.2d 382, 389 (¶ 16) (Miss.2001). Only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice, will the supreme court disturb it on appeal. Id.

¶ 34. Ms. Kent asserts that the verdict was not properly deliberated and it was the product of bias and prejudice because the jury deliberated for only five minutes and underlined defendant four times on the verdict form. This issue was never presented to the trial court by way of objection or in the post trial motion. Accordingly, Ms. Kent is barred from presenting this issue for the first time on appeal. Triplett, 758 So.2d at 401 (¶ 9).

¶ 35. Nevertheless, we will briefly discuss the merits of this argument. First, as to the length of the jury’s deliberation, “our case law is well settled that short deliberations do not automatically evidence bias or prejudice.” Ekornes—Duncan v. Rankin Med. Ctr., 808 So.2d 955, 962(¶ 29) (Miss.2002). There is no formula to determine how long a jury should deliberate. In Johnson v. State, 252 So.2d 221, 224 (Miss.1971), cert. denied, 405 U.S. 991, 92 S.Ct. 1262, 31 L.Ed.2d 459 (1972), the Mississippi Supreme Court held:

Because the jury’s time of considering their verdict did not exceed seven minutes, it does not follow that the jurors did not carefully consider the testimony and the exhibits. It is not only possible but probable that when the state and the defendant had rested and the summations had been made each juror had decided in his mind the issue of innocence or guilt. After the brief deliberation with each other, the jurors found that they were of a single mind as to the guilt or innocence of the appellant and found him to be guilty.
Under the facts of this case this Court is unwilling to lend its authority to the establishment of any formula or guideline relating to the time a jury must deliberate before delivering its verdict. This Court is cognizant of the fact that in the past in occasional cases, as in the case at bar, rather brief deliberations have taken place in the jury room and verdicts have been returned with unusual rapidity. There is no yardstick of time which a jury should use before reaching a verdict. No two cases are similar as to facts and therefore the law varies in its application thereto. Therefore, we cannot hold that in the time utilized by the jury it could not reach a proper verdict of guilty.

(emphasis added).

¶ 36. In Smith v. State, 569 So.2d 1203, 1205 (Miss.1990), the supreme court relied on Johnson and upheld a verdict where the jury only deliberated for three minutes. Likewise, we decline to establish a time frame or a yardstick for a jury to deliberate. As discussed in Johnson, it is an equally plausible argument that the small amount of time it took to deliberate evidenced the jury’s confidence and certainty in its decision.

¶ 37. Next, Ms. Kent argues that the underlining of the word “defendant” evidences the jury’s bias, prejudice or improper passion. We find this claim too speculative. Based on the record before us, we have no way to know who underlined the word or their reasoning for doing so. Additionally, Ms. Kent points to no particular incident in the record which would have caused bias or prejudice on the part of the jury. Combined with the speed of the jury’s deliberation, it may be said that the underscoring of “the defendant” indicated confidence and certainty in their decision. We find this issue is without merit.

V. Whether the jury verdict was contrary to the evidence or unsupported by the evidence.

¶ 38. “In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Herrington v. Spell, 692 So.2d 93, 103 (Miss.1997). The jury is the ultimate judge of the weight of the evidence and the credibility of the witnesses. Jackson v. Griffin, 390 So.2d 287, 289 (Miss.1980). “Because of the jury verdict in favor of the appellee, this Court will resolve all eviden-tiary conflicts in the appellee’s favor and will draw all reasonable inferences which flow from the testimony given in favor of the appellee.” Southwest Miss. Reg'l Med. Ctr. v. Lawrence, 684 So.2d 1257, 1267 (Miss.1996) (quoting Bobby Kitchens, Inc. v. Mississippi Ins. Guar. Assoc., 560 So.2d 129, 131 (Miss.1989)). We will not set aside the jury’s verdict unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Herrington, 692 So.2d at 104.

¶ 39. Ms. Kent argues that it is incumbent upon the defendant to offer an independent expert to counter the testimony of the plaintiff's experts. In her brief, Ms. Kent asserts that the failure of Dr. Mansel to refute the testimony of her expert witnesses warrants a reversal of the jury’s verdict as being against the overwhelming weight of the evidence. Ms. Kent contends that, under Mississippi law, once the plaintiff has presented expert testimony then the burden shifts to the defendant to present expert testimony or risk a directed verdict.

¶40. The Mississippi Supreme Court recently evaluated and rejected the same argument in McCaffrey v. Puckett, 784 So.2d 197 (Miss.2000). The court held that:

Mississippi case law demands that in a medical malpractice action, negligence cannot be established without medical testimony that the Defendant failed to use ordinary skill and care. Sheffield v. Goodwin, 740 So.2d 854 (Miss.1995). There is no such case requiring that the defendant offer expert testimony or risk a directed verdict. We decline to adopt such a rule.

McCaffrey, 784 So.2d at 206(¶ 33).

¶ 41. Furthermore, even if this were the law, Ms. Kent fails to consider the testimony of Dr. Mansel. Dr. Mansel was offered as an expert in the field of pulmonology and critical care pulmonolo-gy. The record indicates that Dr. Mansel was indeed qualified to testify as to the proper standard of care for the intubation of a patient in respiratory distress. The jury was free to weigh the testimony of Ms. Kent’s expert witnesses and that of Dr. Mansel to determine who they believed.

¶ 42. Also, Dr. Mansel presented substantial evidence to refute the credibility of Ms. Kent’s expert witnesses. Each of the three Vanderbilt physicians admitted they had not reviewed Candice’s medical records from Baptist and none of them were either pulmonologists or critical care pul-monologists. While Ms. Kent’s experts testified as to their opinion of the appropriate standard of care, Dr. Mansel also testified as to what he believed to be the standard of care for critical care pulmonol-ogists in emergency situations. Hence the jury had a classic battle of experts before them.

¶ 43. In essence, Ms. Kent’s experts testified as to the standard of care regarding treatment of the complications Candice suffered from diabetes. Ms. Kent’s experts practiced in pediatrics and otolaryn-gology, not pulmonology. Dr. Mansel testified as to the standard of care for her respiratory distress, which involved the medical discipline of critical care pulmonol-ogy in emergency situations. Ms. Kent’s experts were concerned with the treatment of Candice’s diabetes and the condition of her throat, while Dr. Mansel was concerned with the condition and continued functioning of Candice’s lungs. There was sufficient evidence for the jury to conclude that the appropriate standard of care was for Dr. Mansel to select the largest tube that can be placed in a patient’s airway without difficulty. Both Dr. Mansel and his nurse testified that he intubated Candice with the 8.0 millimeter tube without difficulty and on the first try.

¶ 44. Additionally, Candice was intubat-ed twice more at Vanderbilt. A reasonable jury could infer that these intubations caused or significantly contributed to Candice’s throat injuries, instead of the first intubation by Dr. Mansel. Contrary to Kent’s position that Dr. Mansel presented no testimony to dispute her experts, there was sufficient evidence to support the jury’s verdict. Therefore, we do not find that the jury verdict is so contrary to the overwhelming weight of the evidence as to warrant a reversal.

¶ 45. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY IS AFFIRMED. COSTS ARE ASSESSED TO THE APPELLANT.

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

      . An "otolaryngologist” is a physician who specializes in the diseases of the ear, larynx and throat, including the upper respiratory tract.