author: liAMY, Judge.

text:
    Pamela T. MELANCON v. MEADOW BROOK REHAB.
    No. 03-1255.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2004.

      Edward J. Milligan, Jr., Lafayette, LA, for Plaintiff/Respondent, Pamela T. Melan-con.
    Bradley J. Gadel, Percy, Smith, Foote & Gadel, Alexandria, LA, for Defendant/Applicant, Health South Rehabilitation.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   liAMY, Judge.

In this workers’ compensation matter, the employer seeks supervisory writs from a ruling of the Office of Workers’ Compensation, District 4, Parish of Lafayette, denying its peremptory exception of prescription. We granted the writ for the purpose of calling up the case for full briefing, argument, and an opinion.

Factual and Procedural Background

Pamela Melancon, a registered nurse and the claimant herein, was hired by Health South Rehabilitation in January 1999. The record of the proceedings below indicates that on June 2, 2000, the date of the accident at issue, she was assigned to work at an area hospital. While on duty, she and other nurses responded to a patient who had fallen. Ms. Melancon recalled that this particular patient was tall and heavy; as such, the efforts of several people were needed to lift the transfer board and to return the patient to her bed. After Ms. Melancon began to hold part of the transfer board, the nurse to her left dropped his part of the board. Ms. Melan-con stated that she immediately tried to pick it up because she did not want the patient to fall off and hit her head. In so doing, she smashed a finger and experienced severe pain in her neck, left shoulder, and the left part of her body due to the “excessive weight.” Health South concedes that Ms. Melancon was injured in the course and scope of her employment.

After the accident, Ms. Melancon sought treatment from an orthopedist, a pain management specialist, and a physical therapist. The record indicates that surgery | ¡¡was performed on her left shoulder-collar bone area and that she remained in pain-management therapy as of the date of her deposition. Ms. Melancon noted that her condition improved with physical therapy, but her workers’ compensation insurance denied treatment before her course of therapy was completed. She further indicated that she still experienced pain on her left side that kept her from performing the heavy-lifting activities required of nurses. Ms. Melancon continued to work for Health South until August 2001, when she resigned and went to work for Advantage Nursing Service.

Ms. Melancon filed the instant disputed claim on January 30, 2003, seeking a determination as to her disability status and her entitlement to vocational rehabilitation. In addition, she requested supplemental earnings benefits, penalties, and attorney’s fees. Health South answered and filed a peremptory exception of prescription, arguing that Ms. Melancon’s claim for supplemental earnings benefits, filed more than two years after her work-related accident, was time-barred.

A hearing was held on the exception of prescription on August 12, 2003. The workers’ compensation judge denied the exception, reasoning that Howard, v. Trelles, 95-227 (La.App. 1 Cir. 2/23/96), 669 So.2d 605, writ denied, 96-712 (La.5/3/96), 672 So.2d 90, the sole case cited by the parties in their respective arguments, tended to support the claimant’s position. Health South applied to this court for supervisory writs, challenging the workers’ compensation judge’s ruling.

Discussion

Health South asserts that the workers’ compensation judge erred in denying its exception of prescription with respect to Ms. Melancon’s claim for workers’ |scompensation indemnity benefits. It points out that Ms. Melancon was injured on June 2, 2000, yet she did not seek supplemental earnings benefits until the instant disputed-claim form was filed on January 30, 2003. Health South admits that although it has paid Ms. Melancon’s related medical expenses from the date of the accident through the present, it maintains that it has not paid any benefits that could be considered indemnity benefits as defined by statute.

Health South insists that Ms. Melancon had one year from the date of the accident to file her claim for indemnity benefits because none of the exceptions to the one-year rule, outlined in La.R.S. 23:1209, are applicable. Health South observes |4that the employer’s notification of injury, Form 1007, was filed on June 7, 2000, five days after the accident. As such, it argues, the injury was readily apparent and would not qualify for the two-year prescriptive period for delayed-onset injuries. In addition, it points out that the exception in which the prescription period is extended to three years after the date of the last indemnity payment is inapplicable herein because no indemnity payments were ever made. Health South contends, citing Richardson v. Tyson Foods, 01-427 (La.App. 3 Cir. 10/3/01), 796 So.2d 827, that because Ms. Melancon’s claim has prescribed on its face, the burden of proof has shifted to her to show that prescription was interrupted or suspended. It argues that Ms. Melan-con did not meet this burden of proof and that her claims for indemnity benefits have prescribed.

In support of her contention that her request for supplemental earnings benefits was timely, Ms. Melancon maintains that a disputed-claim form filed on her behalf on March 18, 2002, interrupted prescription, citing Howard v. Trelles, 95-221 (La.App. 1 Cir. 2/23/96), 669 So.2d 605, writ denied, 96-712 (La.5/3/96), 672 So.2d 90. In Howard, an employee timely filed suit against her employer for payment of medical expenses related to an at-work accident. The matter was settled, and the presiding workers’ compensation judge signed an order in which he granted the parties’ joint motion to dismiss, dismissing the suit with prejudice. Nevertheless, | .^according to the terms of the settlement as reflected in the order of dismissal, the employee reserved the right to file future claims pertaining to medical expenses or indemnity benefits. Nearly two years after the order of dismissal, the employee sued for medical expenses and indemnity benefits. The employer filed an exception of prescription, which was denied by the workers’ compensation judge on the grounds that the prior suit interrupted prescription as to all workers’ compensation benefits. The first circuit held that the employee’s claims had not prescribed due to the reservation of rights in conjunction with the settlement of the first claim, and additionally because the second claim, which the court viewed as pertaining to a delayed-onset disability, was filed within two years of the dismissal of the first claim.

Relying on Howard, Ms. Melancon argues that the March 18, 2002 claim was timely filed, and, as a result, it interrupted prescription as to any claim for indemnity benefits. She maintains that prescription began to run anew on October 1, 2002, when the first claim was dismissed, and that therefore, prescription as to claims for any indemnity benefits would have run on September 30, 2003. She further argues that because the instant disputed claim was filed on January 30, 2003, it was timely-

In response to Ms. Melancon’s claims that prescription was interrupted, Health South argues that the prescriptive period as to medical benefits is separate from the prescriptive period for indemnity benefits. It points out that the subject of the March 18, 2002, disputed claim was the alleged termination of her physical therapy and that no mention was made of indemnity benefits. As such, it argues, prescription might have been interrupted as to medical benefits only. Health South points out that the prior disputed claim was filed more than a year after her injury and that even if | ^prescription had been interrupted, it would have been without effect because this prior claim was untimely with respect to indemnity benefits.

We find that the applicable prescriptive period for Ms. Melancon’s claim for indemnity benefits was one year from the date of her accident. The record reflects that her injury was not latent; as such, the two-year prescription period of La.R.S. 23:1209(A) is not applicable. The record further reflects, and the parties have stipulated, that Ms. Melancon did not receive any indemnity benefits that would trigger the application of the three-year prescriptive period of La.R.S. 23:1209(A). Accordingly, Ms. Melancon had one year from the date of her accident to request indemnity benefits, including supplemental earnings benefits.

The disputed-claim form filed on May 18, 2002, neither interrupted nor suspended prescription. The claim for medical benefits, filed nearly two years after the date of the accident, was timely. However, this claim was not timely for purposes of interrupting prescription as to claims for indemnity benefits. Because La.R.S. 23:1209 establishes different prescriptive periods for different types of workers’ compensation benefits, it can be inferred that interrupting prescription as to only one type of claim would not interrupt prescription as to every potential claim that an employee might make. If this were so, each type of benefit would have the same prescriptive period; however, they do not.

The claimant relies upon the first circuit’s opinion in Howard, discussed above, in support of her argument that her claim has not prescribed. We do not find Howard to be persuasive in this case. There is a key distinction between the facts of that case and those of the instant matter: here, unlike the claimant in How ard, Ms. Melancon did not expressly reserve any rights to make future claims as to indemnity benefits |7after her claim for medical benefits was dismissed. Instead, Ms. Melancon did not mention indemnity benefits until nearly two and a half years after her accident. This is clearly outside the one-year time limit outlined for such claims in La.R.S. 23:1209(A). Accordingly, the workers’ compensation judge erred in denying Health South’s peremptory exception of prescription as to Ms. Melancon’s claim for indemnity benefits.

DECREE

For the foregoing reasons, we grant the writ, maintain Health South’s exception of prescription, and dismiss, with prejudice, Pamela Melancon’s claims against Health South pertaining to workers’ compensation indemnity benefits. All costs of this proceeding are assigned to Pamela Melancon.

WRIT GRANTED AND MADE PEREMPTORY.

      . The record indicates that Health South was acquired by Meadow Brook Rehabilitation. The claimant amended her petition to reflect the change in ownership; however, throughout the proceedings, the employer has retained the designation "Health South." Accordingly, we shall refer to it herein as "Health South."

      . The facts herein are largely undisputed. The claimant's deposition, which was entered into evidence at the hearing on the exception of prescription, forms the basis for this factual recitation.

      . Howard will be discussed later in this opinion.

      . Specifically, La.R.S. 23:1221(1),' (2), (3), and (4), which provide a schedule for payment of temporary total disability benefits, permanent total disability benefits, supplemental earnings benefits, and permanent partial disability benefits, respectively.

      .Louisiana Revised Statutes 23:1209 provides as follows:
      A. In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4). Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.
      B.Any claim may be filed with the director, office of workers' compensation, by delivery or by mail addressed to the office of workers' compensation. The filing of such claims shall be deemed timely when the claim is mailed on or before the prescription date of the claim. If the claim is received by mail on the first legal day following the expiration of the due date, there shall be a rebuttable presumption that the claim was timely filed. In all cases where the presumption does not apply, the timeliness of the mailing shall be shown only by an official United States postmark or by official receipt or certificate from the United States Postal Service made at the time of mailing which indicates the date thereof.
      C. All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of malting the last payment of medical benefits.
      D. When a petition for compensation has been initiated as provided in Section 1310.3, unless the claimant shall in good faith request a hearing and final determination thereon within five years from the date the petition is initiated, same shall be barred as the basis of any claim for compensation under the Workers' Compensation Act and shall be dismissed by the office for want of prosecution, which action shall operate as a final adjudication of the right to claim compensation thereunder.

      . This dispute was resolved and was dismissed without prejudice by the Office of Workers' Compensation on October 1, 2002.


source: Caselaw Access Project

license: Public Domain

text:
    Gary Carl SIMMONS, Jr. v. STATE of Mississippi.
    No. 2002-DR-00196-SCT.
    Supreme Court of Mississippi.
    Jan. 29, 2004.
    Rehearing Denied April 22, 2004.

      Office of Capital Post-Conviction Counsel by Robert M. Ryan, attorney for appellant.
    Office of the Attorney General by Judy T. Martin Marvin L. White, Jr., attorneys for appellee.
   SMITH, Presiding Justice, for the Court.

¶ 1. Gary Carl Simmons, Jr., was convicted of capital murder and sentenced to death for the murder of Jeffery Wolfe. Simmons was also convicted of the rape and kidnaping of Wolfe’s female companion. On direct appeal Simmons raised twenty-seven issues. This Court found those issues to be without merit and affirmed Simmons’s conviction and death sentence. See Simmons v. State, 805 So.2d 452 (Miss.2001), cert. denied, 537 U.S. 833, 123 S.Ct. 142, 154 L.Ed.2d 51 (2002).

¶ 2. Simmons subsequently filed his Motion for Leave to Proceed in the Trial Court with a Petition for Post^Conviction Relief, Supplement/Amendment to Petition for Posb-Conviction Relief, Correction to Supplement/Amendment, and Supplemental Authority with this Court. The State has filed its Response, and Simmons has filed his Reply Brief.

¶ 3. Simmons’s Petition for Post-Conviction Relief raises the following issues:

I. PETITIONER WAS UNFAIRLY DENIED BY THE TRIAL COURT OF HIS RIGHT TO PRESENT TO THE TRIAL JURY A VIDEOTAPE HE HAD MADE WITHIN HOURS AFTER THE OFFENSE IN WHICH HE HAD EXPRESSED REMORSE, HUMANITY AND DEMEANOR PARTICULARLY AT THE PENALTY PHASE, IN VIOLATION OF ESTABLISHED FEDERAL AND STATE CASE LAW.
II. PETITIONER WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WITHIN THE MEANING OF STRICKLAND v. WASHINGTON.
A. Trial Counsel’s Inadequate Investigation and Presentation of Mitigation Factors at the Penalty Phase.
B. DNA Evidence.
C. Cumulative Effect of Counsel’s Failure to Make Contemporaneous Objections to Damaging Testimony, the Result of Which was Ineffective Assistance of Counsel Within the Meaning of Strickland v. Washington.
III. SIMMONS WAS DENIED THE EFFECTIVE ASSISTANCE OF CONFLICT FREE COUNSEL AND THE FAILURE OF THE TRIAL COURT TO INQUIRE INTO THE CONFLICT VIOLATED HIS FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS AND CORRESPONDING PROVISIONS OF THE MISSISSIPPI CONSTITUTION.
IV. THE MITIGATION TESTIMONY OF LORI SIMMONS, EX-WIFE OF THE PETITIONER, WAS UNFAIRLY LIMITED BY THE TRIAL COURT AND AS A RESULT SIMMONS WAS DENIED HIS FUNDAMENTAL CONSTITUTIONAL RIGHT TO CALL WITNESSES TO TESTIFY ON HIS BEHALF.
V. THE TRIAL COURT ERRED IN SUBMITTING TO THE JURY THE AGGRAVATING CIRCUMSTANCE THAT THE DEFENDANT KNOWINGLY CREATED A GREAT RISK TO MANY PERSONS.
VI. THE PETITIONER’S MOTIONS FOR A CONTINUANCE SHOULD HAVE BEEN GRANTED AND THE FAILURE TO DO SO WAS REVERSIBLE ERROR.
VII. THE SENTENCE RENDERED AGAINST PETITIONER GARY CARL SIMMONS IS DISPROPORTIONATE TO THAT OF HIS CO-DEFENDANT, THE PERSON WHO SHOT AND KILLED JEFFERY WOLFE, IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE CORRESPONDING PORTIONS OF THE MISSISSIPPI CONSTITUTION.
VIII. PETITIONER WAS DENIED HIS RIGHTS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE FEDERAL CONSTITUTION AND MISSISSIPPI LAW DUE TO THE CUMULATIVE EFFECT OF THE ERRORS AT HIS CAPITAL TRIAL.

¶ 4. Simmons’s Supplement/Amendment to Petition raises the following supplemental issues:

IX. THE AGGRAVATING FACTORS ELEVATING THE CHARGE TO A CAPITAL OFFENSE WERE NOT INCLUDED IN SIMMONS’ INDICTMENT AND THEREFORE HIS DEATH PENALTY MUST BE VACATED.
A. In Ring v. Arizona, the U.S. Supreme Court held that aggravating circumstances function as elements of the offense of capital murder.
B. In its requirement that at least one aggravating circumstance be found before the death penalty can be imposed, Mississippi’s capital sentencing scheme is indistinguishable from the Arizona scheme rejected in Ring.
C. Capital murder may be charged only upon an indictment alleging all of the elements of the crime to be proved.
X. THE TRIAL COURT ERRED IN CHARGING THE TRIAL JURY WITH STATE REQUESTED INSTRUCTION S-ll AS THE SAME IS AN INCORRECT STATEMENT OF THE LAW OF THE STATE AND AS A RESULT SIMMONS WAS UNFAIRLY PREJUDICED AND DENIED A FUNDAMENTALLY FAIR TRIAL.

¶ 5. The State has moved to strike the issues raised in the Supplement/Amendment, saying they could have been raised earlier. We deny the motion to strike, as this Court granted Simmons time to supplement his initial Petition for Post-Conviction Relief, and the Supplement/Amendment was filed as a result.

FACTS

¶ 6. Jeffery Wolfe and Charlene Brooke Leaser drove from Houston, Texas, to Jackson County, Mississippi, in August 1996 to collect money owed Wolfe from a drug transaction. Wolfe and Leaser met with Gary Simmons and Timothy Milano at Simmons’s house on the evening of August 12. Initially the men discussed the money owed to Wolfe, but after failing to resolve the matter Milano shot Wolfe with a .22 caliber rifle. Simmons then bound Leaser and locked her in a metal box. Leaser tried repeatedly to escape from the box, and on one occasion Simmons heard her attempting to escape, removed her from the box and raped her. He then returned her to the box. Simmons then dismembered Wolfe’s body and dumped the various body parts in the bayou behind his house. Leaser eventually escaped and convinced a neighbor to call the police.

DISCUSSION

I. EXCLUSION OF A VIDEOTAPE.

¶ 7. Simmons made a videotape of himself after the murder of Wolfe and sent it to his wife, who in turn delivered it to his lawyer. The videotape was eventually produced to the State. Simmons did not testify at trial but attempted to introduce the videotape. The trial court excluded the videotape, and Simmons raised this as error on direct appeal. This Court found that the videotape inadmissible because it was hearsay and not relevant. Simmons, 805 So.2d at 488. Three members of the Court acknowledged that the videotape was properly excluded in the guilt phase of the trial, but found that it should have been admitted during the sentencing phase as part of Simmons’s mitigating evidence. Simmons, 805 So.2d at 508-11 (Diaz, J., concurring in part and dissenting in part).

¶ 8. Simmons argues that it was error for the trial court to exclude the videotape during the sentencing phase because (1) it showed remorse by Simmons and would have rebutted the prosecution’s argument during sentencing that Simmons showed no remorse and (2) the admission of evidence should be relaxed during the sentencing hearing.

¶ 9. The State argues that Simmons’s argument is barred under Miss.Code Ann. § 99-39-21, which provides in part:

(1) Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver.
(2) The litigation of a factual issue at trial and on direct appeal of a specific state or federal legal theory or theories shall constitute a waiver of all other state or federal legal theories which could have been raised under said factual issue; and any relief sought under this article upon said facts but upon different state or federal legal theories shall be procedurally barred absent a showing of cause and actual prejudice.
(3)The doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on direct appeal.

¶ 10. We agree and hold that Simmons’s argument is barred by res judicata.

II. EFFECTIVE ASSISTANCE OF COUNSEL.

¶ 11. This Court has stated the following on ineffective assistance of counsel and the standard provided in Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

“The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant must demonstrate that his counsel’s performance was deficient and that the deficiency prejudiced the defense of the case. Id. at 687, 466 U.S. 668, 104 S.Ct. 2052. “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Stringer v. State, 454 So.2d 468, 477 (Miss.1984) (citing Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. 2052). The focus of the inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. Id.
Judicial scrutiny of counsel’s performance must be highly deferential, (citation omitted) ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’
Stringer, 454 So.2d at 477 (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Defense counsel is presumed competent. Id.
Then, to determine the second prong of prejudice to the defense, the standard is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Mohr v. State, 584 So.2d 426, 430 (Miss.1991). This means a “probability sufficient to undermine the confidence in the outcome.” Id. The question here is:
whether there is a reasonable probability that, absent the errors, the sentencer — including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of the aggravating and mitigating circumstances did not warrant death. Strickland, 466 U.S. at 695, 104 S.Ct. at 2068.
There is no constitutional right then to errorless counsel. Cabello v. State, 524 So.2d 313, 315 (Miss.1988); Mohr v. State, 584 So.2d 426, 430 (Miss.1991) (right to effective counsel does not entitle defendant to have an attorney who makes no mistakes at trial; defendant just has right to have competent counsel). If the post-conviction application fails on either of the Strickland prongs, the proceedings end. Neal v. State, 525 So.2d 1279, 1281 (Miss.1987); Mohr v. State, 584 So.2d 426 (Miss.1991).
Davis v. State, 743 So.2d 326, 334 (Miss.1999) (citing Foster v. State, 687 So.2d 1124, 1130 (Miss.1996)).

Brown v. State, 798 So.2d 481, 493-94 (Miss.2001).

A. Trial Counsel’s Investigation and Presentation of Mitigation Factors at the Penalty Phase.

¶ 12. Simmons called the following witnesses in his sentencing hearing: Jewell Simmons, his paternal grandmother; Milton Dupuis, his half-brother; Dana Van-zante, a friend; Lynette Holmes, a friend of Simmons’s ex-wife, Lori; Belinda West, Simmons’s half-sister; and Lori Simmons, Simmons’s ex-wife. The witnesses testified that Simmons was a good person, a loving husband and father to his two daughters, and he was a different person from the one portrayed at trial. Milton Dupuis testified that his father, Gary’s stepfather, beat them “every day just about,” and Gary got the worst of it because he was the oldest. Dupuis testified that his father also beat their mother and once when Gary tried to defend her, the stepfather shot at him. Dupuis stated that Gary led him to have a religious conversion, but when Gary and Lori divorced, Gary started making bad decisions. There was also testimony that Gary had been barred from residing in the house with Lori’s two older children from another marriage, but the reasons given for this were not clear. Simmons argues that his counsel was ineffective for failure to adequately investigate his background and family and to procure a professional expert to evaluate this information for the jury.

¶ 13. Simmons cites Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), where the United States Supreme Court found that counsel had been ineffective at the sentencing phase of trial because of counsel’s failure to investigate and uncover proof of Williams’s tragic childhood because counsel thought that state law barred access to certain relevant records. The Court said counsel could have discovered that Williams’s parents had been imprisoned for criminal neglect of their children, that Williams had been beaten by his father, that Williams had spent time in an abusive foster home, that Williams was borderline mentally retarded and did not advance past the sixth grade in school, and that Williams had helped authorities during his stay in prison.

¶ 14. Simmons also cites Jackson v. Calderon, 211 F.3d 1148 (9th Cir.2000), where Jackson’s attorney was found to have been ineffective in the sentencing phase for spending about two hours investigating in preparation for sentencing and calling only Jackson’s estranged wife and mother as witnesses. In invalidating the death sentence, the Ninth Circuit stated that Jackson’s attorney never investigated beyond the mother and wife because he never expected the case to reach the sentencing phase,' and he never investigated or presented evidence concerning Jackson’s addiction to PCP or his PCP intoxication at the time of the murder, never investigated a separate aggravating factor, and never investigated beatings Jackson had endured as a child or signs that Jackson was mentally ill. See also Smith v. Stewart, 140 F.3d 1263 (9th Cir.1998) (death sentence vacated where counsel presented no mitigating evidence when evidence concerning mental problems, drug abuse and family ties was available).

¶ 15. Simmons cites Castro v. Oklahoma, 71 F.3d 1502 (10th Cir.1995), which is not an ineffective assistance of counsel case. Castro deals with whether the trial court erred in refusing to provide funds for a psychiatric expert for Castro’s defense.

¶ 16. Simmons finally cites Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), where the United States Supreme Court found that Wiggins received ineffective assistance of counsel because his trial counsel had failed to investigate and present mitigating evidence of Wiggins’s background, including physical and sexual abuse committed by his mother, by a series of foster parents, and a Job Corps supervisor, as well as evidence of mental retardation. Counsel for Wiggins failed to make this investigation even though the State made funds available for this purpose. Trial counsel instead attempted to show that Wiggins was not responsible for the murder in question. The Supreme Court stated:

In finding that Schlaich and Nether-cott’s investigation did not meet Strickland’s performance standards, we emphasize that Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing. Nor does Strickland require defense counsel to present mitigating evidence at sentencing in every case. Both conclusions would interfere with the “constitutionally protected independence of counsel” at the heart of Strickland, 466 U.S., at 689, 104 S.Ct. 2052. We base our conclusion on the much more limited principle that “strategic choices made after less than complete investigation are reasonable” only to the extent that “reasonable professional judgments support the limitations on investigation.” Id., at 690-691, 104 S.Ct. 2052. A decision not to investigate thus “must be directly assessed for reasonableness in all the circumstances.” Id., at 691, 104 S.Ct. 2052. Counsel’s investigation into Wiggins’ background did not reflect reasonable professional judgment. Their decision to end their investigation when they did was neither consistent with the professional standards that prevailed in 1989, nor reasonable in light of the evidence counsel uncovered in the social services records — evidence that would have led a reasonably competent attorney to investigate further. Counsel’s pursuit of bifurcation until the eve of sentencing and their partial presentation of a mitigation case suggest that their incomplete investigation was the result of inattention, not reasoned strategic judgment. In deferring to counsel’s decision not to pursue a mitigation case despite their unreasonable investigation, the Maryland Court of Appeals unreasonably applied Strickland. Furthermore, the court partially relied on an erroneous factual assumption. The requirements for habeas relief established by 28 U.S.C. §§ 2254(d) are thus satisfied.

Wiggins, 539 U.S. at -, 123 S.Ct. at 2541-42.

¶ 17. The State argues that Simmons’s counsel was not ineffective for failure to procure a psychological or mitigation expert because he was not entitled to one. The State cites Bishop v. State, 812 So.2d 934, 939-40 (Miss.2002), where this Court stated:

A defendant is not entitled to a psychological expert where he has not raised insanity as a defense or where the State does not plan to submit psychological evidence against the defendant. Ladner v. State, 584 So.2d 743, 757 (Miss.1991); Nixon v. State, 533 So.2d 1078, 1096 (Miss.1987). As we have stated, “[w]here a defendant offers no more ‘than undeveloped assertions that the requested assistance would be beneficial,’ no trial court is under an obligation to provide him with fishing equipment.” Griffin v. State, 557 So.2d 542, 550 (Miss.1990) (quoting Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (1985)). Bishop did not raise an insanity defense; he offered no facts which would show that there was a need to develop mitigating evidence based on psychological problems; and he underwent a thorough psychological evaluation performed at the State Hospital which produced no mitigating evidence.
We therefore find that Bishop was not entitled to a psychological expert for the purpose of developing mitigating evidence.

In this case Simmons did not raise an insanity defense. His mental condition was not an issue in this case.

¶ 18. In addition, Simmons offers no evidence now which supports his claim that his trial counsel should have investigated more thoroughly, or in certain areas, even under the authority he cites. Simmons offers nothing in support from mental health experts who can now say what an investigation of Simmons or his family background would have shown, or what such experts would now be willing to testify to. Simmons offers nothing from his trial attorney on how much time he spent preparing for the sentencing phase and why he did not feel the need to offer more or different evidence on mitigation. In Wiggins v. Smith, Jackson v. Calderon, and Williams v. Taylor refer to potential mitigation evidence contained in school records, hospital records, prison records and expert findings. Here Simmons presents the affidavits of an investigator from the Office of Capital Post-Conviction Counsel, who interviewed Simmons’s grandmother and sister, Jewel and Belinda Simmons. The first affidavit states that Jewel Simmons loved Gary and was upset with the verdict. The affidavit further states that Gary’s father refused to talk to the investigator and that Jewel would not sign an affidavit because of Gary’s father. Gary’s mother, Mildred, never attended the trial because she was embarrassed. Mildred had a gambling problem which caused hardship for the family. Mildred remarried when Gary was three, and Gary’s stepfather was very abusive. The investigator’s other affidavit describes an attempt to interview Gary’s ex-wife, Lori, who, according to the investigator, did not want to answer questions about Gary. The State argues that the affidavits are primarily hearsay, and we agree. In addition some of what is contained in the affidavits was presented at trial.

¶ 19. In conclusion we find that, Simmons has not submitted sufficient evidence of a breach of the duty of counsel to investigate and present mitigation evidence as described by the United States Supreme Court in Wiggins v. Smith.

¶ 20. Simmons also argues that trial counsel was ineffective for failure to interview the State’s witnesses, particularly Charlene Brooke Leaser, before trial, and for failure to cross-examine Leaser on her previous guilty pleas in Texas state court to DUI and credit card abuse, and revocation of probation on credit card abuse. The State argues that impeachment would have been permissible only on the credit card issue. The State also argues that it could have been trial strategy not to cross-examine this young rape victim any more vigorously considering what she had allegedly suffered.

¶ 21. We find nothing in this record to indicate whether defense counsel interviewed Leaser. As for the impeachment Simmons suggests, we doubt that it would have been significant considering that (1) the State’s DNA testimony supported Leaser’s testimony and (2) Simmons did not testify, so there was no testimony to contradict Leaser’s version of the events surrounding Jeffery Wolfe’s death. We hold that this issue is without merit.

B. DNA Evidence.

¶ 22. Simmons next argues that his trial counsel was ineffective for failure to adequately prepare for the examination of Deborah Haller, the State Crime Lab’s DNA expert. Simmons states that his counsel should have begun the process of procuring funds and finding a DNA expert “at least three months prior to the production of the State’s DNA report that they were doing DNA testing,” or at least three months prior to July 23, 1997, because counsel for Simmons allegedly knew at this time that the State was doing DNA testing. This is the argument that the State made at trial and on direct appeal in response to Simmons’s request for continuance. See Simmons, 805 So.2d at 484. The State argued at trial and on direct appeal that counsel for Simmons was at fault for not timely finding a DNA expert. Here, Simmons adopts the State’s trial and direct appeal argument. The State, faced with its arguments made at trial and on direct appeal concerning defense counsel’s lack of competence, now states, “It is unclear what more trial counsel could have done.”

¶ 23. Deborah Haller, the State’s DNA expert, testified concerning blood found in a bucket near a boat used by Simmons, muscle tissue found in the bathroom in Simmons’s home, a bush hook, and a knife collected from the bathroom of Simmons’s home. As to these items Haller testified that the probability of the blood belonging to someone besides Jeffery Wolfe was one in 390,000 in the Caucasian population. Haller also testified that the DNA material found on a condom collected from a wastebasket in Simmons’s bathroom was consistent with that of Simmons and Charlene Leaser.

¶ 24. This testimony was critical on the matter of Simmons’s participation in the case. It also supported Leaser’s testimony that Simmons had raped her. The State argues that this issue is in part a restatement of issues raised on direct appeal concerning whether the trial court erred in admitting Haller’s testimony and whether the trial court erred in refusing to grant a continuance to Simmons so that his expert could have more time to review the DNA evidence. The State also argues that defense counsel’s conduct was not deficient and that Simmons did not at trial and does not here proffer any evidence which would show that Haller’s testimony was incorrect or flawed in any way.

¶ 25. We agree with the State’s last argument. Even if one conceded that the first prong of the Strickland v. Washington test, that of deficient conduct by defense counsel, was met here, there is still the matter of prejudice. Simmons has produced nothing, even at this time, from Dr. Ron Acton, Simmons’s DNA expert at trial, or anyone else, which calls into question the accuracy of the results testified to by the State’s DNA expert. Without such evidence prejudice cannot be shown, and this issue is without merit.

C. Cumulative Effect of Counsel’s Failure to Make Contemporaneous Objections.

¶ 26. Simmons next argues that the failure of his trial counsel to make contemporaneous objections on numerous occasions amounted, in a cumulative manner, to ineffective assistance of counsel. The State argues that this Court noted all of these instances in its opinion, including the fact that no contemporaneous objection had been made by the defense, and reached the merits of each argument regardless, finding that none of the claims amounted to error. The State argues that because this Court considered each of these instances on the merits and found that there was no error, then a claim for ineffective assistance of counsel can not be supported because the prejudice prong of the Strickland test cannot be met. We agree and hold that this issue is without merit.

III. EFFECTIVE ASSISTANCE OF CONFLICT FREE COUNSEL.

¶ 27. Simmons next argues that he was denied effective assistance of counsel because his trial counsel, Harvey Barton, had before the trial represented a state witness, Dennis Guess, and represented Guess’s father at the time of Simmons’s trial. Simmons argues that this amounted to a conflict of interest and the trial judge should have declared a mistrial.

¶ 28. This issue was raised by Simmons on direct appeal. This Court found that there was “no evidence in the record to suggest that defense counsel acted in some manner other than capable.” Simmons, 805 So.2d at 480. The issue is barred by res judicata pursuant to Miss.Code Ann. § 99-39-21(3).

IV. MITIGATION TESTIMONY OF LORI SIMMONS.

¶ 29. Simmons next argues that “his ex-wife, Lori Simmons, was not permitted to fully testify as to matters pertaining to mitigation factors offered by him at the sentencing phase of the proceeding. Numerous times the State objected to responses to defense questions during her examination at trial. Simmons alleges that the adverse rulings by the trial court violated his fundamental right to call witnesses on his behalf.”

¶ 30. This issue was presented to this Court on direct appeal. The Court found that “the trial judge may have initially erred in sustaining the State’s objections to several questions posed to Lori, in fact, subsequently, she was allowed to respond and fully explore the issues posed by the previous denied questions,” and any error was harmless. Simmons, 805 So.2d at 498.

¶ 31. The State argues that Simmons is barred by res judicata from raising this issue now, as it was decided on direct appeal. Simmons provides no exception to this rule. Simmons does attach an affidavit from an employee of the Office of Capital Post-Conviction Counsel, which states that the employee attempted to contact Lori Simmons, who declined to answer any questions about the case. That Lori Simmons refuses to answer questions now about the case is not relevant on the question of whether Gary Simmons received a fair trial. We hold that this issue is without merit.

V. AGGRAVATING CIRCUMSTANCE THAT SIMMONS KNOWINGLY CREATED A GREAT RISK TO MANY PERSONS.

¶ 32. At trial the jury found two aggravating circumstances: one was that the capital offense was committed for pecuniary gain, and the second was that “the defendant knowingly created a great risk of death to many people.” On direct appeal Simmons argued that the second aggravator was supported by insufficient evidence. This Court found “that the evidence regarding Simmons’ disposal of Wolfe’s remains into the bayou constituted knowingly creating a great risk to many people. There is no reversible error here.” Simmons, 805 So.2d at 497.

¶ 33. Simmons now makes the same argument on post-conviction, that “the prosecution failed to introduce adequate and sufficient evidence to convince a jury beyond a reasonable doubt that petitioner had knowingly created a great risk to many persons as a matter of law.” We hold that this issue is barred by res judica-ta.

¶34. Simmons also argues that “[i]t should not matter either, if a defendant fails to object to any such charge or erroneous instruction as under the recent case of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the Sixth Amendment requires that any finding of fact that makes a defendant eligible for the death penalty must be unanimously made by the jury beyond a reasonable doubt.” Though the record is not clear whether defense counsel objected or not, this is irrelevant, as this Court considered the merits of the argument and found there was no error. Even if Ring did apply, the jury did find the aggravating circumstance in question beyond a reasonable doubt.

¶ 35. Simmons argues that this Court’s finding on direct appeal that one scenario, the repeated firing of a rifle in a residential neighborhood, did not sufficiently support the aggravator in question, but that placing Jeffery Wolfe’s remains in community waters did support the aggravator, amounts to appellate fact-finding or reweighing. We disagree. This Court reviewed the entire record on direct appeal and found that the aggravating circumstance in question was supported by certain evidence. We hold that this issue is without merit.

VI. MOTIONS FOR A CONTINUANCE.

¶ 36. Simmons next argues that the trial court erred in failing to grant a continuance due to the State’s intention to offer DNA evidence in support of its case and Simmons’s resulting attempt to rebut this evidence. This issue was raised on direct appeal. This Court found that Simmons had not shown sufficient evidence, in a timely manner, to support the granting of a continuance. Simmons, 805 So.2d at 484-85. The State answers that as this issue was raised and rejected on direct appeal, it is barred by res judicata here. Simmons provides no reason that an exception to the bar should be considered. We hold that this issue is without merit.

VII. PROPORTIONALITY OF DEATH SENTENCE.

¶ 37. Simmons next argues that his death sentence is disproportionate because Timothy Milano, not Simmons, actually fired the shots that killed Jeffery Wolfe. Milano received a life sentence. Simmons argues that this disparity in sentences is unfaii', and also argues that there is no evidence that Simmons was a leader, planner and/or instigator of the killing. This issue was also raised on direct appeal. This Court rejected this issue, noting that the jury had found that Simmons intended Wolfe’s death and contemplated that lethal force would be used, that the death penalty had been affirmed for others who had not done the actual killing and that ample evidence showed that Simmons actively planned and participated in the robbery and murder. Simmons, 805 So.2d at 507.

¶ 38. Simmons cites Bishop v. State, 812 So.2d 934 (Miss.2002), where Bishop was not the primary killer. The State argues that Bishop is more supportive of its argument, as Bishop received the death penalty while Jessie Wayne Johnson, who inflicted the lethal blows in that case, received life without parole. We agree with the State. The Court has also found the death penalty not to be disproportionate for an aider and abetter who is not the actual killer in several other cases. Smith v. State, 729 So.2d 1191 (Miss.1998); Ballenger v. State, 667 So.2d 1242 (Miss.1996); Carr v. State, 655 So.2d 824 (Miss.1995); Abram v. State, 606 So.2d 1015 (Miss.1992); Leatherwood v. State, 435 So.2d 645 (Miss.1983).

¶ 39. Simmons also cites Randall v. State, 806 So.2d 185 (Miss.2001), where this Court found that, where there was no proof as to who actually killed the victim, and the other co-defendants received sentences of less than death, and the jury only found that Randall contemplated that lethal force would be used and nothing else, then the death sentence was disproportionate. While Simmons’s case does have similarities to Randall, the case at bar, as this Court noted on direct appeal, the jury found that Simmons intended the killing of Jeffery Wolfe to take place, in addition to finding that Simmons contemplated that lethal force would be employed. This Court specifically found that under these circumstances the death penalty was not disproportionate.

¶ 40. Simmons also cites Bullock v. State, 525 So.2d 764 (Miss.1987), and Duplantis v. State, 644 So.2d 1235 (Miss.1994). In Bullock, this Court rendered a sentence of life imprisonment where Bullock’s co-defendant actually killed the victim and received a life sentence. In Du-plantis this Court reversed a murder conviction and death sentence on other grounds and intimated that the State’s proof might have been insufficient on the issue of proportionality in the first trial. We find neither case to be controlling here.

¶ 41. Simmons also cites as intervening cases Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. Neiv Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Supreme Court held in Ring that only a jury may find an aggravating circumstance necessary for the imposition of the death penalty. The Supreme Court held in Ap-prendi that any fact, other than a previous conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Neither case changes or expands the law on proportionality. The issue was dealt with on direct appeal, and we hold that it is barred by res judicata at the post-conviction level.

VIII. CUMULATIVE ERROR.

¶ 42. Simmons next argues that even if none of the alleged errors, cited individually, may be basis for relief, the cumulative effect of all the errors viewed together mean that Simmons is entitled to relief. Simmons raised the cumulative error issue on direct appeal. The Court found the argument was without merit:

Simmons’s final assertion of error is that each of the above enumerated errors, when taken together, warrant reversal as cumulative error. Simmons cites Hickson v. State, as authority for this proposition when this Court held that reversal was warranted by their perception of a combined prejudicial impact of two actions taken by the State that substantially compromised Hickson’s right to a fair trial. Hickson v. State, 472 So.2d 379, 385 (Miss.1985).
The State counters with a quote from Doss v. State, which reads “[wjhere there is no reversible error in any part, .... there is no reversible error to the whole.” Doss v. State, 709 So.2d 369, 401 (Miss.1996). Additionally, this Court has held that a murder conviction or a death sentence will not warrant reversal where the cumulative effect of alleged errors, if any, was procedurally barred. Doss, 709 So.2d at 401. Cumulatively, these errors do not warrant reversal.

Simmons, 805 So.2d at 508. Even with the additional arguments made here that were not made on direct appeal, we hold that this issue is without merit.

IX. OMISSION OF THE AGGRAVATING FACTORS ELEVATING THE CHARGE TO A CAPITAL OFFENSE FROM INDICTMENT.

A. Ring v. Arizona.

¶ 43. Simmons argues that his indictment is unconstitutional for failure to include and specify the aggravating factors used to sentence him to death. This issue was not raised at trial or on direct appeal and normally would be procedurally barred. However, Simmons primarily relies on Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), as intervening decisions which would nullify the procedural bar.

¶ 44. In Jones v. United States the United States Supreme Court considered a federal carjacking statute. The Supreme Court found in Jones that the carjacking statute, which allowed three different punishments increasing in severity depending on the degree of violence used or physical harm accomplished by the carjacker, could result in three distinct offenses, all of which had to be charged in the carjacker’s indictment:

[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.

Jones, 526 U.S. at 243 n. 6, 119 S.Ct. 1215 (emphasis added).

¶ 45. Jones was followed by Apprendi. Apprendi fired several shots into the home of an African-American family in Vineland, New Jersey. Apprendi was indicted on numerous state charges of shooting and possession of firearms. He eventually pled guilty to two counts of possession of a firearm for unlawful purpose and one count of possession of an explosive. After the judge accepted the guilty pleas, the prosecutor moved for an enhanced sentence on one of the counts on the basis that it was a hate crime. The judge concurred and rendered an enhanced sentence on twelve years on that particular count, with shorter concurrent sentences on the other two counts.

¶ 46. Relying in part on Jones, Appren-di argued that he was entitled to have the finding on enhancement decided by a jury. The Supreme Court agreed, stating: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. However, the Court specifically stated that “Apprendi has not here asserted a constitutional claim based on the omission of any reference to sentence enhancement or racial bias in the indictment.... We thus do not address the indictment question separately today.” Apprendi, 530 U.S. at 477 n. 3, 120 S.Ct. 2348.

¶ 47. The Court found in Apprendi that New Jersey’s statutory scheme would allow a jury to convict a defendant of a second -degree offense of possession of a prohibited weapon, and then, in a separate subsequent proceeding, allow a judge to impose a punishment usually reserved for first' degree crimes made on the judge’s finding based on a preponderance of the evidence. The Apprendi Court finally stated that its decision did not apply to capital sentencing cases, even those cases where the judge was the one deciding whether to sentence the defendant to death or some lesser sentence, citing Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511(1990), where the Arizona capital sentencing process had been upheld.

¶ 48. In 2002, the U.S. Supreme Court decided Ring v. Arizona. Ring' addresséd the issue of whether the Arizona capital sentencing process as upheld in 1990 in Walton v. Arizona, that of a jury deciding guilt and a judge making findings on aggravating factors, could survive the Ap-prendi decision. The Supreme Court decided it could not. Despite the efforts in Apprendi to distinguish non-capital enhancement cases from aggravating circumstances in capital cases in this context, the Supreme Court in Ring found that there was no difference.

[W]e overrule Walton to the extent that it allows a sentencing judge, sitting without a’ jury, to find an aggravating ■circumstance necessary for imposition of the death penalty. See 497 U.S., at 647-649, 110 S.Ct. 3047. Because Arizona’s enumerated aggravating factors operate as “the functional equivalent of an element of a greater offense,” Apprendi, 530 U.S., at 494, n. 19, 120 S.Ct. 2348, the Sixth Amendment requires that they be found by a jury.
* % *
“The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered.... If the defendant preferred the commonsense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it.” Duncan v. Louisiana, 391 U.S. 145, 155-156, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).
The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant’s sentence by two years, but not the factfinding necessary to put him to death. We hold that the Sixth Amendment applies to both.

Ring, 536 U.S. at 609, 122 S.Ct. 2428.

¶ 49. Simmons’s argument is that because Ring found the Apprendi decision persuasive on the issue of Arizona’s enumerated aggravating factors operating as “the functional equivalent of an element of a greater offense,” the Supreme Court necessarily adopted every other rule stated in Apprendi for state capital sentencing proceedings, specifically the rule first cited in Jones v. United States, that the Constitution requires that aggravating factors be listed in indictments. We find this argument is incorrect. Ring only found juries must find aggravating factors: “Ring’s claim is tightly delineated: He contends only that the Sixth Amendment required jury findings on the aggravating circumstances asserted against him.... ” Finally, Ring does not contend that his indictment was constitutionally defective. See Apprendi, 530 U.S. at 477 n. 3, 120 S.Ct. 2348 (Fourteenth Amendment “has not ... been construed to include the Fifth Amendment right to ‘presentment or indictment of a Grand Jury’ ”). Ring, 536 U.S. at 597 n. 4,122 S.Ct. 2428.

B. Mississippi’s capital sentencing scheme.

¶ 50. Simmons’s argues: “Although Mississippi’s capital sentencing scheme is not identical in all respects to the Arizona scheme rejected by the United States Supreme Court in Ring, the two schemes are identical in the respects relevant to this case.” This is incorrect. The two sentencing schemes are different in the only respect relevant to Ring, that of who finds aggravating circumstances that lead to the death sentence. Under Arizona’s scheme, the judge did this, and for this reason Arizona’s scheme was found to be unconstitutional. Under this state’s statutory scheme, and in Simmons’s case the jury found the aggravating circumstances. We hold that there is no infirmity under Ring.

C. Indictment alleging all of the elements of the crime to be proved.

¶ 51. Simmons sums up his argument concerning the alleged problems with his indictment by repeating it here. Simmons cites United States v. Fell, 217 F.Supp.2d 469 (D.Vt.2002), and United States v. Lentz, 225 F.Supp.2d 672 (E.D.Va.2002). In Fell, 217 F.Supp.2d at 483, the court found the following: “Although the Ring decision explicitly did not discuss whether a defendant was entitled to grand jury indictment on the facts that, if proven, would justify a sentence of death, see Ring, 536 U.S. at 597 n. 4, 122 S.Ct. at 2437 n. 4, the clear implication of the decision, resting as squarely as it does on Jones, is that in a federal capital case the Fifth Amendment right to a grand jury indictment will apply.” This is not a federal capital case, and there is nothing to show that this Fifth Amendment right is applicable to a state capital case. Lentz makes the same finding, but once again deals with the Federal Death Penalty Act, or FDPA.

¶ 52. Simmons also relies on the United States Supreme Court decision of Allen v. United States, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002). In a memorandum decision, the Supreme Court stated the following: “The judgment [in Al len ] is vacated and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).”

¶ 53. One issue raised in Allen was the issue Simmons raises here, that of his indictment being defective because it did not contain the aggravating factors. The Eighth Circuit in Allen found that Allen’s indictment was not defective even though it did not contain the aggravating factors. If this is the basis on which Allen is being reversed, it seems odd to cite Ring v. Arizona to do it. The question of what an indictment must contain in a state capital case was not before the Ring court. In Apprendi v. New Jersey, the Supreme Court stated that the Fifth Amendment right to indictment had never been applied to the states through the Fourteenth Amendment. Absent more explicit direction, we find that the Supreme Court has not ruled that state capital defendants have a constitutional right to have all aggravating circumstances listed in their indictments. We find that this issue is without merit.

X. INSTRUCTION S-ll.

¶ 54. On direct appeal Simmons raised as error the giving of Instruction S-11, which states:

The Court instructs the jury that one who willfully, unlawfully, and feloniously aids, abets, assists, or otherwise encourages the commission of a crime is just as guilty under the law as if he or she had committed the whole crime with his or her hand.

¶ 55. This Court found the issue to be without merit as follows:

Simmons alleges that the trial court erred in granting State’s S-ll which he believes is an incorrect statement of the law. The State urges that this argument should be proeedurally barred because defense counsel’s objection to S-11 is different on appeal than the one offered at trial. At trial, it appears that defense counsel objected to S-ll on the grounds that it was an “aiding and abetting” instruction, rather than an incorrect statement of the law. The State cites Doss v. State, 709 So.2d 369, 378 (Miss.1996) for the proposition that an objection at trial on one specific ground constitutes a waiver on all other grounds.
Simmons believes that this instruction relieved the prosecution of its burden to prove all of the elements of capital murder, robbery, kidnaping and rape. Simmons cites generally Hornburger v. State, 650 So.2d 510, 514 (Miss.1995) and Berry v. State, 728 So.2d 568 (Miss.1999).
Both Hornburger and Berry are distinguishable because they involved instructions that told the jury that each person who commits any act that is an element of the crime is guilty as a principle. S-11 simply does not contain the operative language that could be construed as reading that a defendant found guilty of aiding and abetting with respect to one element of the crime is guilty as a principle. When determining whether error lies in the granting or refusal of various instructions, we must consider all the instructions given as a whole. Coleman v. State, 697 So.2d 777, 782 (Miss.1997). ‘When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Coleman, 697 So.2d at 782. The jury instructions listing the elements of capital murder (S-4a), robbery (S—3), kidnapping (S—7), and rape (S—8) all carefully lay out the elements of each crime. Additionally, Simmons is guilty as a principal under Miss.Code Ann. §§ 97-1-3 (2000). Thus, we find no error in the giving of this instruction.

Simmons, 805 So.2d at 475-76.

¶ 56. Simmons acknowledges this Court’s consideration of S-ll on direct appeal, but states here at the post-conviction level that S-ll “causes a more serious, obscure and sinister problem, different and apart from the issue addressed on appeal — it allows the jury an option in regard to the capital murder charge of finding Simmons guilty through a minimal act not rising to the level of the actual commission of the crime.” Simmons further states that “[t]he syntactical and semantic differences in the given aiding and abetting and accessory instructions which may allow for an experienced jurist to differentiate are simply confusing and prone to error when read by a lay juror.” Simmons later adds that S-ll, “when viewed within the evidence adduced in trial, unfairly lessened the prosecutor’s burden.” The State argues that Simmons is raising the same issue here that he raised on direct appeal, and as such this issue is barred from consideration by res judicata. We agree with the State’s argument and hold that the issue is barred due to res judicata.

¶ 57. If Simmons is attempting to raise a new issue here, we hold that the attempt is further barred under Miss.Code Ann. § 99-39-21(1), as this issue could have been raised on direct appeal but was not, and § 99-39-21(3), which states that “the litigation of a factual issue at trial and on direct appeal of a specific state or federal legal theory or theories shall constitute a waiver of all other state or federal legal theories which could have been raised under said factual issue; and any relief sought under this article upon said facts but upon different state or federal legal theories shall be procedurally barred absent a showing of cause and prejudice.”

¶ 58. Simmons finally argues that in the direct appeal of his co-defendant, Timothy Milano, this Court was compelled to announce that the jury instruction at issue in Berry and Lester v. State, 744 So.2d 757 (Miss.1999), and in this case should no longer be given, and the Court prospectively adopted a Pattern Jury Instruction from the Fifth Circuit. As stated in this Court’s opinion in Simmons’s direct appeal, S-ll is distinguishable from the instructions found in the other cases cited here. This Court in Milano did not reverse based on the instruction in question, but found that any error was harmless as other instructions provided that all elements of the offenses had to be proved before Milano could be found guilty. Milano v. State, 790 So.2d 179, 185 (Miss.2001). We find that this issue is without merit.

CONCLUSION

¶ 59. After thorough consideration we deny Simmons’s Motion for Leave to Proceed in the Trial Court on a Petition for Post-Conviction Relief, as amended and supplemented.

¶ 60. MOTION FOR LEAVE TO SEEK POST-CONVICTION RELIEF, DENIED.

PITTMAN, C.J., WALLER, P.J., COBB, EASLEY, CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.


author: SMITH, Chief Justice, for the Court.

text:
    MISSISSIPPI DEPARTMENT OF HUMAN SERVICES v. Carolyn K. McNEEL.
    No. 2002-CC-01948-SCT.
    Supreme Court of Mississippi.
    April 8, 2004.
    Julia Ann Townsend, Cassandra S. Walter, Gloria Green, Jackson, attorneys for appellant.
    Jim Waide, Tupelo, attorney for appel-lee.

      Before SMITH, C.J., COBB, P.J., and CARLSON, J.
   SMITH, Chief Justice, for the Court.

¶ 1. On November 5, 1999, the Mississippi Department of Human Services (MDHS) notified Carolyn K. McNeel that she was terminated from her position of employment with the Winston County Department of Human Services. McNeel was charged with two offenses. The first charge was that McNeel “approached the birth mother of a child that she had previously investigated for allegations of abuse and offered her home as a permanent home for the child;” MDHS claims this act would have violated Group III, Number 16 offense for willfully violating State Personnel Board policies, which prohibit employees from subjecting themselves to possible conflicts of interest. The second charge was that she used her position to adopt a child; this charge would amount to a violation of a Group III, Number 11 offense by her conduct in violation of MDHS policy Volume IV, Section F, page 4501 which prohibited McNeel from making an independent adoption placement of a child known to her through her position with the agency.

¶ 2. McNeel appealed her termination to the Mississippi Employee Appeals Board. On October 3, 2000, Hearing Officer Fal-tón O. Mason, Jr., heard the case, and he found that the action taken by the MDHS was against the overwhelming weight of the evidence, noting the significant difference between one being appointed a guardian of a child and one adopting a child as one’s own. Hearing Officer Mason further found that neither McNeel nor her husband, Billy Gene McNeel, ever approached the natural mother about adopting the child, A.B., and that the natural mother considers the guardianship to be temporary. Therefore, Hearing Officer Mason concluded that McNeel should be reinstated to her position with back pay and benefits as of the date of termination, subject to any sum received from other sources.

¶ 8. On April 23, 2001, the Mississippi Employees Appeals Board (EAB) sitting en banc affirmed Hearing Officer Mason’s order.

¶ 4. Next, the MDHS petitioned the Hinds County Circuit Court for writ of certiorari to review the decision of the EAB. The Circuit Court of the First Judicial District of Hinds County found that “the decision of the Mississippi Employee Appeals Board that appellee be reinstated is supported by substantial evidence.”

¶5. MDHS appeals from the order of the circuit court on the following issues:

I. WHETHER THE DECISION TO TERMINATE McNEEL WAS SUPPORTED BY AN OVERWHELMING WEIGHT OF EVIDENCE OR WAS ARBITRARY AND CAPRICIOUS.
II. WHETHER THE FINDING THAT “THE ACTION OF. McNEEL WAS NOT A WILLFUL VIOLATION OF STATE PERSONNEL POLICIES, THAT HER ACTIONS WERE NOT A CONFLICT OF INTEREST AND THAT SHE DID NOT VIOLATE POLICIES OF THE MISSISSIPPI DEPARTMENT OF HUMAN SERVICES” WAS RELEVANT TO A CHARGE OF GROUP III, NUMBER 11, “ACTS OF CONDUCT . . .”
III. WHETHER THE EAB HAS THE AUTHORITY TO ALTER THE ACTION BY MDHS IN LIGHT OF RULE 24(B) OF THE EAB’S ADMINISTRATIVE RULES.

FACTS

¶ 6. On October 27, 1997, A.B. was brought into the office of the Winston County Department of Human Services by relatives who reported that she was being neglected and abused. McNeel was both the intake worker and the investigator assigned to A.B.’s case. Reports are conflicting as to when the case was terminated and how much involvement McNeel had with the case because MDHS has been unable to produce the child’s file. MDHS claims that A.B.’s case was initially terminated on December 29, 1998. During this fourteen-month period, McNeel’s co-worker reported that McNeel expressed to her co-workers that she loved A.B. and would love to raise A.B. as part of her family. The hearing officer found that McNeel’s official contact was limited to a brief time in 1997.

¶ 7. In February of 1999, when A.B.’s case was again brought to the attention of the Winston County DHS, a co-worker, Jo Anne Clark, telephoned McNeel, who was at home recuperating from surgery, to tell McNeel of A.B.’s case. Clark states that shortly thereafter in March of 1999, McNeel said she was going to talk to A.B.’s mother and aunts about letting her raise the child. MDHS alleges that on March 16, 1999, McNeel approached A.B.’s birth mother to offer her home to the child in order to keep A.B. out of the foster care system; however, the hearing officer, the EAB, and the circuit court judge all found no supporting evidence for this claim. Additionally, A.B.’s mother wrote a letter stating that McNeel had nothing to do with her desire to place A.B. in Billy Gene McNeel’s care.

¶ 8. The hearing officer’s found:

The testimony reflected that the husband of the Appealing Party knew the family and of the child since 1995, and knew of the child’s problem since sometime in 1998. The child’s father was killed in an automobile accident. That he was contacted about custody of the child by an employee of the Department of Human Services, who encouraged him to get involved with the said child, and pointed out to him that certain problems might occur. That he made the decision to become the guardian of the child that the Appealing Party was not a part of that decision, but that she concurred with him. That he was granted the guardianship of the child.

¶ 9. McNeel worked for MDHS for nineteen years, the last ten in Winston County. Her husband Billy is a certified public accountant. They have been married since 1983 and have one teenage son. Billy has known A.B. since her father was killed in a truck accident, and he knew AB.’s mother when she was a teenager.

¶ 10. Webb O’Bryant, McNeel’s supervisor at MDHS, called Billy about the first week in March of 1999 and asked him if he would take A.B. into his home. No mention was made of the consequences that might face McNeel if the child was taken into their home. On June 16, 1999, Billy was made guardian of A.B. and awarded physical and legal custody.

¶ 11. MDHS’s claim of wrongdoing by McNeel is based upon co-workers stating that McNeel had said she wanted this “beautiful child.” Those co-workers admit they did not tell her there was anything wrong with this or that the child should not be going to her home.

¶ 12. MDHS never produced any file on the child at the hearing. Elaine Cooper, a clerk in the Winston county office claimed that she gave the file to O’Bryant, who had given it to “Program Integrity.” Program Integrity claims to have returned the file by mail to the Winston County DHS.

¶ 13. McNeel argues that the real reason for her firing may have been to keep her from receiving a promotion to head of the Winston County Department of Human Services. O’Bryant was promoted from his position in early 1999, and his slot became open. McNeel could have applied for this promotion if she had not been fired and she claims she was the most experienced local applicant. According to McNeel, the person who did get the promotion was Tabatha Stewart, who testified against McNeel at the EAB hearing.

STANDARD OF REVIEW

¶ 14. The MDHS fails to assert or recognize the standard of review this Court imposes in an administrative agency case.

¶ 15. This Court, as well as the circuit court, reviews a decision of an administrative agency for substantial evidence supporting that agency’s finding, and the scope of review is limited to the findings of the agency. Walters v. Miss. Dep’t of Economic & Community Dev., 768 So.2d 893, 895 (Miss.2000) (citing Holloway v. Prassell Enters., Inc., 348 So.2d 771, 773 (Miss.1977) and Miss. Employment Sec. Comm’n v. Pulphus, 538 So.2d 770, 772 (Miss.1989)). However, the rule permits the appellate court “to examine the record as a whole and where such record reveals that the order of the [agency] is based on a mere scintilla of evidence, and is against the overwhelming weight of the credible evidence the court will not hesitate to reverse.” Walters, 768 So.2d at 895 (quoting Johnson v. Ferguson, 435 So.2d 1191, 1194-95 (Miss.1983)).

ANALYSIS

I. WHETHER THE DECISION TO TERMINATE McNEEL WAS SUPPORTED BY AN OVERWHELMING WEIGHT OF EVIDENCE OR WAS ARBITRARY AND CAPRICIOUS.

¶ 16. MDHS argues that the circuit court’s decision to uphold McNeel’s reinstatement goes against the overwhelming weight of evidence indicating that McNeel did entertain a conflict of interest and that a per se breach of MDHS policy occurred. In support of its argument, MDHS claims that social workers should not “be allowed to adopt a [child] they become attached to through their professional endeavors [because] ... No natural parent would ever regain custody once an MDHS social worker decided they would prefer to have the child. [A.B.’s] mother certainly will not.” This argument fails to recognize that McNeel’s husband, Billy, did not adopt A.B. but was merely appointed as her guardian, which is not a permanent situation and does not prevent A.B.’s mother from regaining custody.

¶ 17. Next, MDHS argues that it presented overwhelming evidence supporting its decision to terminate McNeel’s employment. To examine the EAB’s role and the burden of proof required in an appeal of this nature, it is helpful to begin with the applicable laws and then consider the resulting administrative regulations and guidelines.

¶ 18. In pertinent part, Miss.Code Ann. § 25-9-131(1) (Rev.2003) states:

Any employee in the state service may appeal his dismissal or other action adversely affecting his employment status to the employee appeals board created herein. The proceedings before the employee appeals board shall be de novo, and the employee shall be afforded all applicable safeguards of procedural due process.

Additionally, Miss.Code Ann. § 25-9-132 (Rev.2003) outlines the procedure for review of a state agency’s dismissal of an employee:

Any employee aggrieved by a final decision of the employee appeals board shall be entitled to judicial review thereof in the manner provided in this section.
(1) An appeal may be taken by such employee to the circuit court of the principal county of the employee’s employment or the Circuit Court of the First Judicial District of Hinds County, by filing a petition with the clerk of such court and executing and filing bond payable to the state of Mississippi with sufficient sureties to be approved by the clerk of the court, in the penalty of five hundred dollars ($500.00), conditioned upon the payment of all costs of appeal, including the cost of preparing the transcript of the hearing before the employee appeals board. The petition and bond shall be filed within thirty (30) days of the receipt of the final decision of the employee appeals board. Upon approval of the bond, the clerk of the court shall notify the employee appeals board, which shall prepare its record in the matter and transmit it to the circuit court.
(2) The scope of review of the circuit court in such cases shall be limited to a review of the record made before the employee appeals board or hearing officer to determine if the action of the employee appeals board is unlawful for the reason that it was:
(a) Not supported by any substantial evidence;
(b) Arbitrary or capricious; or
(c) In violation of some statutory or constitutional right of the employee.
(3) No relief shall be granted based upon the court’s finding of harmless error by the board in complying with the procedural requirements of sections 25-9-127 through 25-9-129; provided, however, in the event that there is a finding of prejudicial error in the proceedings, the cause may be remanded for a rehearing consistent with the findings of the court.
(4) Any party aggrieved by action of the circuit court may appeal to the supreme court in the manner provided by law.
(5) In each controversy in which the employee appeals board assumes jurisdiction, the state personnel board shall assess the respondent state agency a reasonable fee to defray the cost of recording the hearing. The state personnel board is hereby authorized to contract with certified court reporters to record hearings before the employee appeals board.

This Court has ruled that the de novo review of the EAB is tempered by the EAB’s own rules. In Johnson v. Mississippi Department of Corrections, 682 So.2d 367, 370 (Miss.1996), this Court held that under then Rule 20(b), “the EAB shall not alter the action taken by the agency, if the agency has acted in accordance with the published rule and if the personnel action taken by the agency is allowed under the guidelines.” With the 1999 revisions, this rule is now State Personnel Board Rule 10.40.22(B), allowing:

The Employee Appeals Board may modify an action of a responding agency but may not increase the severity of such action on the appealing party. If the responding agency has acted in accordance with the published policies, rules and regulations of the State Personnel Board, and if the personnel action taken by the responding agency is allowed under said policies, rules and regulations, the Employee Appeals Board shall not alter the action, including but not limited to the compensation paid to the employee, taken by the agency.

This rule must be considered along with the other rules, including SPB Rule 10.40.19 (Rev.1999), defining the burden of proof: “B. The appealing party shall have the burden of proving that the action taken against the employee is arbitrary, capricious, against the overwhelming weight of the evidence and merits the relief requested.” However, the rules are not at odds with one another as it is reasonable to note that had the agency correctly followed it rules, policies and procedure, it would likely not have taken action against the overwhelming weight of evidence or in an arbitrary or capricious manner.

¶ 19. This Court has defined substantial evidence:

Substantial evidence, though not easily defined, means something more than a “mere scintilla” of evidence, Johnson v. Ferguson, 435 So.2d 1191 (Miss.1983) and that it does not rise to the level of “a preponderance of the evidence.” Babcock & Wilcox Co. v. McClain, 149 So.2d 523 (Miss.1963). It may be said that it “means such relevant evidence as reasonable minds might accept as adequate to support a conclusion. Substantial evidence means evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred.” State Oil & Gas Bd. v. Mississippi Min. & Roy. Own. Ass’n, 258 So.2d 767 (Miss.1971). United States v. Harper, 450 F.2d 1032 (5th Cir.1971).

Delta CMI v. Speck, 586 So.2d 768, 773 (Miss.1991).

¶ 20. When an administrative agency’s decision is not based on substantial evidence, it necessarily follows that the decision is arbitrary and capricious and

[a]n administrative agency’s decision is arbitrary when it is not done according to reason and judgment, but depending on the will alone. An action is capricious if done without reason, in a whimsical manner, implying either a lack of understanding of or disregard for the surrounding facts and settled controlling principles.

Miss. State Dep’t of Health v. Natchez, 743 So.2d 973, 977 (Miss.1999); See also Burks v. Amite County Sch. Dist., 708 So.2d 1366, 1370 (Miss.1998).

¶ 21. This Court must review the decision of the hearing officer that was affirmed by the full EAB and the circuit court. After extensive testimony, the hearing officer found that MDHS’s termination of McNeel was not supported by the overwhelming weight of the evidence. The hearing officer observed the testimony of witnesses and their demeanor and found that McNeel was not professionally involved with A.B. at the time her husband was appointed guardian. The hearing officer further found that McNeel did not discuss the child’s home situation with the natural mother until after another MDHS employee contacted Billy about taking A.B. and that adopting the child, or taking her permanently from the natural mother, was never discussed.

¶ 22. The hearing officer emphasized his finding that there is a major difference between guardianship and adoption. He cited the Black’s Law Dictionary definitions of the two terms following:

Adoption is the taking and receiving as one’s own that to which he bore no prior relation, colorable or otherwise.... The act of one who take’s another’s child into his own family, treating him as his own, and giving him all the rights and duties of his own child.... A juridical act creating between two persons certain relations, purely civil, of paternity and filiation.... The relationship created statutory status, not a contractual relation.
A guardian is a person lawfully invested with the power, and charged with the duty, of taking care of the person and managing the property rights of another person, who for some peculiarity of status, or defect of age, understanding, or self-control, is considered incapable of administering his own affairs.

¶ 23. Though the MDHS avers that its termination decision should not be reversed because MDHS rules and regulations were followed in the process, the record does not indicate substantial evidence to support its allegations. The record consists of letters from various members in the community, testimony from Billy and Carolyn McNeel, testimony from McNeel’s co-workers and supervisors, and a few documents from A.B.’s file. The record clearly supports the hearing officer’s findings that MDHS’s allegations are not supported by substantial evidence. Therefore, he was correct in ordering McNeel to be reinstated with back pay. Two appellate forums reviewed the hearing officer’s decision and affirmed it. On this record this Court can only affirm.

II. WHETHER THE FINDING THAT “THE ACTION OF CAROLYN K. McNEEL WAS NOT A WILLFUL VIOLATION OF STATE PERSONNEL POLICIES, THAT HER ACTIONS WERE NOT A CONFLICT OF INTEREST AND THAT SHE DID NOT VIOLATE POLICIES OF THE MISSISSIPPI DEPARTMENT OF HUMAN SERVICES” WAS RELEVANT TO A CHARGE OF GROUP III, NUMBER 11, “ACTS OF CONDUCT...”

¶ 24. MDHS clarifies that the SPB defines a Group III, Number 11 offense as:

Acts of conduct occurring on or off the job which are plainly related to job performance and are of such nature that to continue the employee in the assigned position could constitute negligence in regard to the agency’s duties to the public or to other state employees.

Mississippi State Employees Handbook 62-63 (Rev.2001). The conduct MDHS calls a breach of this regulation the allegation that McNeel approached the birth mother and offered her home to a child known to her through her professional involvement with the child’s family. However, after hearing the evidence presented, Hearing Officer Mason found that the allegation was not supported by the evidence. The evidence included a letter written by the birth mother denying the allegation that McNeel approached her and also included were letters from members of the community detailing Billy’s acquaintance with the child prior to and beyond McNeel’s contact with A.B. as a social worker for the Winston County DHS.

¶ 25. This issue is a sub part of the first issue discussed above. We find that this issue is without merit.

III. WHETHER THE EAB HAS THE AUTHORITY TO ALTER THE ACTION BY MDHS IN LIGHT OF RULE 24(B) OF THE EAB’S ADMINISTRATIVE RULES.

¶ 26. The MDHS meant to appeal this issue in light of SPB Rule 10.40.22(B), which is discussed above. SPB Rule 10.40.24(B) (Rev.1999) states, “the request must be filed within ten (10) calendar days after the date of the final order is filed.” MDHS fails in its brief to provide a more precise citation or to quote the language of the rule or even to cite any applicable case law on the subject. This Court finds no merit in this issue as stated or argued.

CONCLUSION

¶ 27. MDHS claims that the EAB hearing officer, the full EAB, and the circuit court all erred in finding that McNeel should be reinstated to her position with the Winston County DHS with back pay because her termination was not supported by substantial evidence and she showed substantial evidence to support her position. This Court finds no error in the record or in the hearing officer’s order to reinstate with back pay. This Court finds that the decision of the Mississippi Employee Appeals Board was supported by the evidence, was not arbitrary or capricious, and does not violate any statutory or constitutional right. Therefore, this Court affirms the circuit court judgment affirming the decision of the Mississippi Employee Appeals Board.

¶ 28. AFFIRMED.

WALLER AND COBB, P.JJ., EASLEY, CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.

      . We will refer to the child using the fictitious initials A.B.