author: h CANNIZZARO, Judge.

text:
    STATE of Louisiana v. Lawrence ROBERTSON.
    No. 2003-K-0116.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 2003.

      Eddie J. Jordan, Jr., District Attorney, Harry F. Connick, Former District Attorney, Margaret Hay, Michael Capdeboscq, Assistant District Attorney, Melissa War-rick, Law Clerk, New Orleans, LA, for State of Louisiana/Relator.
    Mark D. McNamara, Clive A. Stafford Smith, Stephen I. Singer, New Orleans, LA, for Defendant/Respondent.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO, JR.).
   h CANNIZZARO, Judge.

On September 30, 1999, the defendant, Lawrence Robertson, along with three co-defendants, was indicted for two counts of first degree murder during a crime, violations of La. R.S. 14:30. The defendant pled not guilty. Motion hearings were held on February 3, 2001, July 6, 2001, January 3 and 8, 2002, March 6, 2002, April 10, 2002, and October 23, 2002. On November 22, 2002, the trial court granted the defendant’s motion to suppress the statements he had made to the police during a custodial interrogation on July 28, 1999. On the application of the State of Louisiana, we now grant this writ to review the correctness of the trial court’s judgment.

APPLICABLE LAW

The trial court’s factual findings during a hearing to suppress evidence are entitled to great weight and should not be disturbed unless they are clearly erroneous. State v. Casey, 1999-0023 (La.1/26/00), 775 So.2d 1022, 1029; State v. Clark, 446 So.2d 293, 297 (La.1984). In State v. Sylvester, 2000-1522, p. 2 (La.App. 4 Cir. 12/11/02), 834 So.2d 1184, 1186, this Court discussed the State’s burden at a motion to suppress a statement hearing:

The State has the burden of proving the admissibility of a purported statement at a motion to suppress hearing. La.C.Cr.P. art. 703(D); State v. Hohn, 95-2612, p. 3 (La.App. 4 Cir. 1/19/96), 668 So.2d 454, 456. Before a statement or confession can be admitted into evidence, it must be shown that it was made freely and voluntarily and not under the influence of fear, duress, intimidation, menace, threats, inducements or promises. La. R.S. 15:451. State v. Sepulvado, 93-2692, p. 4 (La.4/8/96), 672 So.2d 158, 163; State v. Hohn. ... In determining the voluntariness of a statement, the trial court must review the totality of the circumstances. State v. Sepulvado; State v. Dunn, 94-776, p. 15 (La.App. 5 Cir. 2/15/95), 651 So.2d 1378, 1387. A trial court’s determination as to the admissibility of a statement is within the discretion of the trial court and its decision will not be disturbed unless unsupported by the evidence. State v. Tart, 93-0772, p. 23 (La.2/9/96), 672 So.2d 116, 126; State v. Samuels, 94-1408, p. 7 (La.App. 4 Cir. 6/7/95), 657 So.2d 562, 566.

DISCUSSION

The trial court heard testimony from Sergeant James Bates that the defendant had been advised of his rights, was not coerced or threatened, and made the statement freely. The defendant, who claimed that he told the arresting officers (who had struck him repeatedly) that he had nothing to say and that he wanted to speak to an attorney, testified that he was taken to the Seventh District Police Station where Sgt. Bates and other officers questioned him, threatened him, and offered him a deal if he cooperated. Detective Kevin Guillot, who was called in rebuttal, testified that he apprehended the defendant on an outstanding warrant after chasing him in |3the Desire Housing Project and finding him hiding in some bushes. The detective stated that he advised the defendant of his rights, but denied that the defendant said that he had nothing to say and that he asked for an attorney. Detective Guillot said that the defendant apparently indicated that he wanted to talk to the investigating officer or to make a statement; therefore, he was taken to the Seventh District Station instead of the lockup.

In its per curiam order and reasons regarding the motions to suppress statements, the trial court factually concluded that Robertson was apprehended and advised of his rights after running from the officers and hiding under some bushes in the Desire Housing Project. The court found that Robertson told the arresting officers that he did not have anything to say and requested a lawyer; however, he was taken to the Seventh District to be interrogated by Sgt. Bates. The interrogating officers initiated the conversation about the murder without advising the defendant of his rights. When the defendant refused to talk about the case, Sgt. Bates became angry. The court found that Sgt. Bates threatened the defendant with harm to his family (by threatening to provide the victim’s family with the address of Robertson and his family) and the death penalty if he did not cooperate. The court concluded that Sgt. Bates promised the defendant leniency if he did cooperate. Robertson was also told that the officers would write up the report as if he had cooperated, whether he did or not. The officers were yelling in Robertson’s face for about an hour, and then Robertson’s “will was overborne and he unknowingly and involuntarily agreed to waive his rights and give a statement.” (Per curiam p. 3). The officers then backed away, and Sgt. Bates took out a rights of arrestee form and reviewed it with the defendant, who then agreed to give a taped statement.

|4The trial court provided three reasons for suppressing Robertson’s statement: 1) the State had not met its burden of proving that the statement was free and voluntary; 2) the defendant’s affirmative assertion of his right to remain silent and to talk to an attorney when he was initially arrested was not honored by the officers; and, 3) even if there had been no such violation of the defendant’s rights, the waiver was not valid because it was not voluntary, but the product of fear, duress, and intimidation. The court stated:

The Court stresses its assessment of the evidence remains even if all of the testimony and evidence regarding the Coleman and Jefferson interrogations is removed. The Court emphasizes that its factual finding in this regard is based not only on Sgt. Bates’ answers, which frequently were evasive, non-responsive or simply made no sense, but also on the Court’s observations of Sgt. Bates’ demeanor — his tone of voice, body language, and facial expressions — while testifying. The Court’s assessment of Sgt. Bates’ credibility, after watching as well as listening to Sgt. Bates, is that he was not a believable witness and his testimony cannot be credited.

(Per curiam p. 18) (footnote added). The trial court explained that he had the opportunity to observe Sgt. Bates during hearings on at least five different dates over more than a year; therefore, it could not be a case of the sergeant “having a bad day.”

The trial court emphasized that he did not believe Sgt. Bates. There were discrepancies and problems relating to the sergeant’s testimony and the documentation. The court was not persuaded by Detective Guillot’s testimony wherein he denied that the defendant did not want to say anything and that he wanted an attorney. The court made a credibility determination Rafter observing the witnesses, especially Sgt. Bates. The trial court’s factual findings are entitled to great weight. The trial court did not abuse his discretion by suppressing Robertson’s statement.

CONCLUSION

Accordingly, the relief requested by the State in its writ application is denied.

WRIT APPLICATION GRANTED; RELIEF DENIED.

      . The transcripts from the motion hearings refer to Sgt. Bates as "Fred Bates.”

      . At the January 8, 2002 hearing Sgt. Bates was not sure whether he or Detective Byron Adams had read Robertson his rights; at the July 6, 2001 hearing Sgt. Bates claimed that Detective Adams had handled the reading of the rights. The defendant's transcribed statement and Sgt. Bates' supplemental report face sheet indicated that Detective Adams read the defendant his rights; however, the waiver of rights form was signed only by Sgt. Bates and indicated that no other officers were present (explained by Sgt. Bates as an omission).

      . In Orleans Parish Criminal District Court case number 405-506 H, Charles Coleman, Harold Jefferson and Kendrick Bartholomew were charged by indictment with first degree murder for the death of Antoine Taylor. In connection with that case, Sgt. Bates interrogated Charles Coleman and Harold Jefferson. At the October 23, 2002 motion hearing in Robertson’s case, the trial court noted that Sgt. Bates had failed to provide the defense in the Antoine Taylor murder case with the taped statements made by the defendants during their police interrogation. In view of Sgt. Bates' conduct in the Antoine Taylor case, the trial court questioned his veracity, stating, "With all respect to Mr. Bates — and this is for the record — I don’t give him that much credence. I do not.”


source: Caselaw Access Project

author: WALLER, J., for the court.

license: Public Domain

text:
    Charles Edward MORRIS, Jr. v. STATE of Mississippi.
    No. 2001-KA-01486-SCT.
    Supreme Court of Mississippi.
    Jan. 30, 2003.
    Rehearing Denied May 8, 2003.

      Darnell Felton, Clarksdale, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before PITTMAN, C.J., WALLER and CARLSON, JJ.
   WALLER, J., for the court.

¶ 1. Charles Edward Morris, Jr., went to the home of Antonio Sykes on March 27, 2001. When he arrived, Antonio Morris (“Antonio”), Sykes’ four-year-old child who was not related to Morris, was in the yard. Morris asked Antonio to go inside and get his father. When Sykes came outside, Morris and Sykes began arguing. Several people, including Antonio, were standing around, watching the argument, which became increasingly heated. When Morris began to walk away, he and Sykes began calling each other names. Morris turned around, drew his handgun, and fired four shots in the direction of Sykes and the bystanders. One shot hit Antonio, and he died shortly afterwards. Morris was found guilty of the depraved heart murder of Antonio. He was sentenced as a habitual offender to life imprisonment without parole.

¶ 2. On appeal, Morris contends that the circuit court erred by impermissibly restricting his voir dire of prospective jurors, denying his motion to quash the jury panel, and limiting his cross-examination of a prosecution witness. We find that these issues are without merit and affirm the conviction and sentence.

DISCUSSION

I. WHETHER THE CIRCUIT COURT IMPERMISSIBLY RESTRICTED THE DEFENSE’S VOIR DIRE.

¶ 3. Morris complains that the circuit court cut off his voir dire regarding the venirepersons’ feelings about a child being killed. The standard of review in examining the conduct of voir dire is abuse of discretion. Jackson v. State, 791 So.2d 830, 835 (Miss.2001). An appellant must show actual harm or prejudice before this Court will reverse a trial court’s limitation on voir dire. Stevens v. State, 806 So.2d 1031, 1054 (Miss.2001).

¶ 4. During voir dire, Morris asked the venirepersons several questions about their feelings about a child being killed and if those feelings would affect their judgment. He also asked several questions about the presumption of innocence which the circuit court ruled were “out of context.” Morris contends that none of the venirepersons responded to his questions, but the record shows tacit responses, either raising or not raising their hands or nodding or shaking their heads.

¶ 5. Morris’ voir dire was not limited by the trial court. He asked the same question over and over again. The trial court told defense counsel that what he was asking was confusing. Indeed, the trial court itself did not understand the questions. Only after it was clear that further questioning would be futile did the trial court cut defense counsel off.

¶ 6. Morris alleges that none of the veni-re responded to his questions and he was not given an opportunity to ask follow-up questions. The record clearly shows that, even though there was no verbal response, venirepersons were either nodding or shaking their heads or raising their hands in response to defense counsel’s questions. Defense counsel had an opportunity right then to ask follow-up questions, but he did not choose to avail himself of this opportunity.

¶ 7. Morris claims that he was not allowed to present a correct statement of the law as to the presumption of innocence. The trial court held that what defense counsel was stating was clearly erroneous. In any event, per arguendo, any error was harmless because the trial court instructed the jury on the presumption of innocence, and juries are presumed to follow the instructions of the court. McCollum v. State, 785 So.2d 279, 283-84 (Miss.2001).

¶ 8. Finally, and most importantly, Morris has presented absolutely no evidence that he was harmed or prejudiced in any way by the alleged limitation of his voir dire. This issue is without merit.

II. WHETHER THE CIRCUIT COURT ERRED IN DENYING MORRIS’ MOTION TO QUASH THE JURY PANEL DUE TO PRE-TRIAL PUBLICITY.

¶ 9. We will find that a voir dire was sufficient to ensure a fair and impartial jury where the appellant does not present any evidence indicating that the jury was not fair and impartial and fails to show any prejudice resulting from how the circuit court conducted the voir dire. Manning v. State, 735 So.2d 323, 336 (Miss.1999). A trial court’s finding that an impartial jury was impaneled will not be reversed unless the court abused its discretion. Holland v. State, 705 So.2d 307, 336 (Miss.1997). “In any case, this Court will treat with deference a venire person’s assertions of impartiality.” Id. (citing Scott v. Ball, 595 So.2d 848, 850 (Miss.1992)). In Gray v. State, 728 So.2d 36, 66-67 (Miss.1998), we affirmed a finding that the jury was impartial because “the panel members were asked repeatedly by the trial judge, the State’s attorneys, and Gray’s attorneys if they could be fair and impartial[, and there was] nothing in the record to indicate that the jurors were not fair and impartial.”

¶ 10. The record shows that jurors # 8, #11, #14, #16, #19, #26, #28, #35, #37, #39, #45, #48, #51, #53, #57, and # 61, sixteen people out of the sixty-plus-person venire, responded affirmatively to the prosecution’s question about whether they had read or heard something about the case. Jurors # 14 and # 19 were struck for cause by the circuit court. The remaining venirepersons were individually brought to the judge’s chambers, where the judge, the prosecutor, and the defense questioned them further about their exposure to information about the case. Each of these people, except for Juror # 35, stated that could set aside what they had learned and be fair and impartial. Juror #35’s memory of what he had heard or read was so vague that he stated that the only thing he remembered was that the shooting occurred. Evidently, the circuit court, the prosecutor and the defense did not think that further questioning was necessary.

¶ 11. Defense counsel challenged Juror # 11 for cause because her father had been murdered 19 years earlier and because she works with senior citizens in the area where the killing occurred. Defense counsel stated, “it just behooves me that she had not talked and formulate some type opinion from talking with those senior citizens over there in that area. I don’t see how she could be fair and impartial.” The circuit court denied the challenge for cause because Juror # 11 stated she could be fair and impartial. The defense also challenged for cause Juror # 16, stating, “he said that he don’t remember what he read, but then he said — he finally said he doesn’t think that anyone can say that they could actually be fair and impartial, that all they could say is T think.’ The circuit court again denied the challenge for cause, stating that he had studied Juror # 16’s 'demeanor, and that, “[i]n fact, I asked him questions after you did and I think that he was being honest with what he said and I think that he is a fair and impartial juror.”

¶ 12. The defense used its peremptory strikes against jurors # 5, # 6, # 7, # 10, # 11, # 13, # 16, # 17, # 21, # 23, # 28, # 37, # 42, and # 43, meaning that only four strikes (# 11, # 16, # 28, and # 37) out of twelve were against prospective jurors who had been exposed to information about the killing. The State used one of its peremptory strikes against Juror # 26. Because #45 was the last alternate chosen, # 48, # 51, # 53, # 57, and # 61 were dismissed.

¶ 13. The long and short of this analysis is that, out of sixteen venirepersons who stated that had been exposed to pre-trial publicity, only Jurors #8, #35 and # 39 were seated on the jury. Jurors # 8 and # 39, after intense questioning in chambers by the court, the prosecution and defense counsel, repeatedly stated they could set aside what they had learned and be fair and impartial. These jurors were called into chambers for individual questioning, and all of them except for #35 stated that whatever they had heard or read would not keep them .from being fair and impartial.

¶ 14. The defense then moved to quash the jury panel, stating that, because of the size of the community, it was hard for anyone not to have heard about the crime. The defense also stated that all of the venire agreed that when a child was injured, they would want to correct that wrong. He admitted that there had not been a “rash” of newspaper articles, but that those venirepersons who did not state that they had heard about the case were lying. The circuit court denied the motion because the panel had been “repeatedly asked whether or not they could be fair and impartial and render a verdict based on the evidence and from the witness stand and the law given by the Court and they’ve all indicated that they could.” The circuit court also noted that every juror who stated that they had read or heard something about the case was questioned individually in chambers.

¶ 15. On appeal, Morris argues that the circuit court “never specifically addressed the factual question about the remaining panel’s lack of honesty and forthrightness about hearing or reading something about the case,” and that “[b]y the sheer number of venire persons who responded to the prosecution’s question affirmatively, it forced the defense to keep venire persons on the panel that admitted to reading or hearing about the case.”

¶ 16. The State responds that Morris “has not met his burden of showing that the panel members had substantial knowledge about matters but failed to answer affirmatively when questioned on the subject. Morris does not demonstrate that the panel members who did not answer affirmatively in fact ‘had substantial knowledge of the information sought to be elicited.’ ” Sewell v. State, 721 So.2d 129, 137 (Miss.1998).

¶ 17. We agree with the State’s argument. Morris has failed to demonstrate to either the circuit court or this Court that any juror had substantial knowledge of the information sought to be elicited. When the jurors failed to respond affirmatively, Morris could have questioned those jurors further. He failed to do so. Morris had the opportunity to question those jurors who he now claims suffered from a “lack of honesty.” If he had those concerns when they failed to answer affirmatively, he should have followed up by asking them further questions in order to make certain that had never heard of the crime or to demonstrate that they were being deceptive by failing to answer.

¶ 18. This issue is without merit.

III. WHETHER THE CIRCUIT COURT IMPERMISSIBLY RESTRICTED MORRIS’ CROSS-EXAMINATION OF A PROSECUTION WITNESS.

¶ 19. Sixteen-year-old Latessa Randolph was Morris’ girlfriend and was pregnant with his child at the time of the incident. She had previously dated Sykes. Latessa walked down the street with Morris to leave the argument with Sykes and was standing by Morris when the shots were fired. At trial, she testified that after the shots had been fired, Morris asked her to lie and claim that she had fired the shots because he had been to jail before. She did as he asked, turned herself in to the police, and signed a written confession. Later, at the urging of her mother, she recanted.

¶ 20. On cross-examination, defense counsel attempted to ask Latessa about the closeness of her mother and Sykes’ mother. Defense counsel believed that the relationship between the two mothers would impeach Latessa’s testimony, inferring that she had a reason to change her statement. The circuit court did not allow defense counsel to ask these questions because the relevance of such matters was too remote: the relationship of the two mothers had no bearing on Latessa’s truthfulness.

¶ 21. “The admissibility of evidence rests within the discretion of the trial court.” Gleeton v. State, 716 So.2d 1083, 1089 (Miss.1998). We will only reverse if the trial court has abused its discretion. Id. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” M.R.E. 401. To be admissible, evidence of bias must have the tendency to make the facts to which the witness testified less probable than it would be without the evidence of bias. Tillis v. State, 661 So.2d 1139, 1142 (Miss.1995). The trial court is generally allowed wide discretion concerning the admission of evidence offered to suggest bias by a witness against the defendant. Id.; Miskelley v. State, 480 So.2d 1104, 1111-12 (Miss.1985).

¶ 22. Evidence of the closeness of Latessa’s mother and Sykes’ mother would not have made the facts to which Latessa testified less probable than it would be without the evidence of bias. Several witnesses saw the argument between Morris and Sykes and saw Morris fire the gun. As soon as Latessa confessed to the shooting, the police doubted her story.

¶ 23. To present evidence in support of Morris’ theory of self defense, defense counsel also sought to elicit testimony about Sykes’ alleged possession of a gun and his animosity toward Morris at a time six months prior to the incident when Sykes and Latessa were dating. The circuit court ruled that Morris could not put on evidence of Sykes having a gun in his possession six months before the incident unless he first put on some evidence that Sykes was the aggressor or had a gun on the day of the incident.

¶ 24. Morris has not presented any substantive evidence, either to the circuit court or to this Court, to support his story that Sykes possessed a gun and fired that gun on the day of the incident. There was absolutely no proof put on at trial that Sykes was the aggressor or that Morris was justified in using deadly force to repel an attack against him. Morris neither testified nor put on any evidence in his casein-chief that he acted in self-defense. In the absence of such evidence, Sykes’ alleged possession of a gun and animosity toward Morris six months earlier was not relevant. The circuit judge did not preclude Morris from asking these questions altogether; rather Morris was asked to establish a proper predicate for the questions. See Rochell v. State, 748 So.2d 103, 112 (Miss.1999). Therefore, the trial judge did not abuse his discretion in limiting cross-examination, and this issue is without merit.

CONCLUSION

¶ 25. We affirm Charles Edward Morris, Jr.’s conviction for depraved heart murder and his sentence of life imprisonment without possibility of parole.

¶ 26. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE NOT TO BE REDUCED OR SUSPENDED AND THE APPELLANT SHALL NOT BE ELIGIBLE FOR PAROLE OR PROBATION DURING THE TERM OF SAID SENTENCE. SENTENCE SHALL RUN CONSECUTIVELY WITH ANY AND ALL SENTENCES PREVIOUSLY IMPOSED.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., COBB, DIAZ, EASLEY, CARLSON AND GRAVES, JJ., CONCUR.

      . The motion made at the trial level was one to quash the jury panel. However, Morris argues on appeal that the entire venire should have been quashed. We consider only the motion to quash the jury panel because the circuit court never considered a motion to quash the entire venire.


author: GRAVES, J., for the Court.

text:
    Donna WEBB and Robert Chambers, Individually as Parents and on Behalf of the Wrongful Death Beneficiaries of Michael S. Chambers v. DESOTO COUNTY, Mississippi, Desoto County Board of Supervisors, James A. Riley, Desoto County Sheriff, and John Doe and Jane Doe, Desoto County Deputy Jailers, in their Official Capacities.
    No. 2002-CA-00005-SCT.
    Supreme Court of Mississippi.
    April 17, 2003.

      Gwendolyn Baptist Hewlett, Southaven, A.C. Wharton, Jr., Memphis, TN, attorneys for appellants.
    Sidney Ray Hill, III, John S. Hill, Tupe-lo, attorneys for appellees.
    Before PITTMAN, C.J., WALLER and GRAVES, JJ.
   GRAVES, J., for the Court.

¶ 1. This appeal arises from an order entered by the Circuit Court of DeSoto County, Mississippi, on December 6, 2001. The instant complaint was filed on January 26, 2001, by Donna Webb and Robert Chambers, individually as parents and on behalf of the wrongful death beneficiaries of Michael S. Chambers, who committed suicide on January 29, 2000, while incarcerated at the DeSoto County Detention Center. DeSoto County, Mississippi, the DeSoto County Board of Supervisors, James A. Riley, DeSoto County Sheriff, and John and Jane Does (collectively “De-soto County”) are sued only in their official capacities. The defendants filed an answer and defenses denying all allegations in the complaint on May 23, 2001. The defendants subsequently filed a motion to dismiss on October 2, 2001. Following a hearing on November 28, 2001, the circuit court entered an order dismissing the complaint. The order was filed with the court on December 11, 2001. Webb and Chambers raise the following issues on appeal:

I.WHETHER THE COURT ERRED IN GRANTING DEFENDANTS MOTION TO DISMISS PURSUANT TO MISSISSIPPI RULES OF CIVIL PROCEDURE 12(B)(6).
II. WHETHER MISS. CODE ANN. § ll-46-9(l)(M) HAS A CONTROLLING EFFECT IN THIS CASE.
III. WHETHER A WRONGFUL DEATH CLAIM BY BENEFICIARIES AND HEIRS IS AN INDEPENDENT CAUSE OF ACTION.
IV. WHETHER MISS. CODE ANN. § 11-16-5 IS APPLICABLE TO THE FACTS OF THIS CASE.

FACTS

¶ 2. Michael S. Chambers was brought to the DeSoto County Detention Center on January 26, 2000, after being arrested for disturbing the peace and domestic violence. On January 29, 2000, DeSoto County Detention Center employees found Chambers dead, hanging in his cell with a bed sheet tied around his neck. It is undisputed that the cause of Chambers’s death was suicide. A subsequent investigation by the DeSoto County Detention Center and Mississippi Highway Safety Patrol found that Chambers had not evidenced any suicidal tendencies and gave no indication of his potentially dangerous emotional state.

DISCUSSION

¶ 3. Webb and Chambers contend that the circuit court erred in granting DeSoto County’s motion to dismiss pursuant to Miss. R. Civ. 12(b)(6) holding that Webb and Chambers failed to present any set of facts that would justify relief. Webb and Chambers argue that Miss.Code Ann. § 11 — 16-9(l)(m) is not applicable to the case at bar because the law on the rights of beneficiaries to bring a claim for wrongful death of their decedent is not entrenched in common law, statutory law or case law. Webb and Chambers allege a wrongful death claim by beneficiaries and heirs is an independent cause of action and the provisions of Miss.Code Ann. § 11-46-5 are applicable to the facts of this case. Additionally, Webb and Chambers assert that § 11-46-5 supercedes the immunity set forth in Miss.Code Ann. § 11 — 46— 9(l)(m).

¶ 4. Since the four issues are interrelated they will be discussed simultaneously. Webb and Chambers brought suit against DeSoto County asserting that their negligence was the proximate cause of Chambers’s death. Webb and Chambers’s claim, however, is barred by the Miss.Code Ann. § 11 — 46-9(l)(m), which states in pertinent part:

(l) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
**:}:*:}:*
(m) Of any claimant who at the time the claim arises is an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution, regardless of whether such claimant is or is not an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution when the claim is filed.

The circuit court found that this section provides DeSoto County immunity because at the time the claim arose, i.e. Chambers’s death, he was incarcerated at the DeSoto County Detention Center. The record is devoid of any allegation that the DeSoto County Detention Center’s employees were acting outside the scope of their employment.

¶ 5. In Liggans v. Coahoma County Sheriffs Dep’t, 823 So.2d 1152, 1153 (Miss.2002), this Court addressed § 11 — 46-9(l)(m) in the context of a suit brought by an inmate who was injured while incarcerated at the county jail when she fell from a top bunk bed and injured her jaw, seeking $500,000 in damages plus medical expenses. This Court affirmed the trial court’s dismissal of the action relying on the clear legislative intent of the Mississippi Tort Claims Act.

¶ 6. A M.R.C.P. 12(b)(6) motion should not be granted unless it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set of facts in support of the claim. In reviewing the grant of a motion to dismiss for failure to state a claim, the appellate court conducts a de novo review. Lowe v. Lowndes County Building Inspection Dep’t, 760 So.2d 711, 712 (Miss.2000). We find that Miss. Code Ann. § 11—46-9(1)(m) clearly bars the instant suit.

¶ 7. Webb and Chambers attempt to circumvent Miss.Code Ann. § ll-46-9(l)(m) by alleging that an action for wrongful death is an independent cause of action; therefore, placing them in a position different from the decedent. However, this Court has found that a wrongful death suit is a derivative action by the beneficiaries, and those beneficiaries, therefore, stand in the position of their decedent. See Wickline v. U.S. Fid. & Guar. Co., 530 So.2d 708, 715 (Miss.1988).

¶ 8. Webb and Chambers stand in the position of Michael Chambers. Therefore, Webb and Chambers are only entitled to the remedy afforded to Michael Chambers if he had survived. Since § ll-46-9(l)(m) provides him with no remedy, so it also prevents a suit by his heirs. Webb and Chambers are unable to bring a wrongful death suit on behalf of a prisoner who dies while incarcerated. For the aforementioned reasons, we find no reversible error.

¶ 9. Webb and Chambers argue that the waiver of immunity contained in § 11-46-6 supercedes the specific types of immunity set forth in § 11-46-9. Miss. Code Ann. § 11-46-5 provides in pertinent part:

(1) Notwithstanding the immunity granted in § 11-46-3, or the provisions of any other law to the contrary, the immunity of the state and its political subdivisions from claims for money damages arising out of the torts of such governmental entities and the torts of their employees while acting within the course and scope of their employment is hereby waived from and after July 1, 1993, as to the state, and from and after October 1, 1993, as to political subdivisions; provided, however, immunity of a governmental entity is any such case shall be waived only to the extent of the maximum amount of liability provided for in § 11-46-15.

¶ 10. This contention by Webb and Chambers is not supported by any applicable case law. Failure to cite legal authority in support of an issue is a procedural bar on appeal. McClain v. State, 625 So.2d 774, 781 (Miss.1993).

CONCLUSION

¶ 11. Under Mississippi statutory and case law, wrongful death beneficiaries of a prisoner who dies while incarcerated are prohibited from bringing a negligence suit against a governmental entity where the employees were acting within the course and scope of their employment. Therefore, the trial court correctly granted DeSoto County’s motion to dismiss. This Court affirms the trial court’s judgment.

¶ 12. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB, DIAZ, EASLEY AND CARLSON, CONCUR. McRAE DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


author: DIAZ, J., for the Court. McRAE, P.J.,

text:
    PDN, INC. v. Ivory LORING.
    No. 2001-CA-01397-SCT.
    Supreme Court of Mississippi.
    April 24, 2003.

      G. Todd Burwell, Jackson, Kristen A. Horton, attorneys for appellant.
    Stephanie M. Rippee, Robert A. Miller, Jackson, attorneys for appellee.
    Before SMITH, P.J., COBB and DIAZ, JJ.
   DIAZ, J., for the Court.

¶ 1. PDN, Inc. filed a suit against National Union Fire Insurance Company of Pittsburgh, Pennsylvania, AIG Claim Services, Inc., and Ivory Loring alleging that, as an adjuster for a workers’ compensation insurance carrier, Loring tortiously interfered with PDN’s business relations. Essentially, Loring refused to approve PDN’s services and fees as a nursing home and physical therapy provider for two injured employees. PDN’s suit contained claims for tortious interference, bad faith, breach of contract and/or bad faith refusal to pay benefits. The trial court granted Loring’s motion for summary judgment as to the tortious interference, bad faith, and breach of contract claims. Consequently, Loring was dismissed from the lawsuit. The trial court certified its judgment as final under Miss. R. Civ. P. 54(b).

¶2. On appeal, PDN raises two issues: (1) whether the trial court erred in granting summary judgment to Loring on PDN’s tortious interference with business claim, and (2) whether the trial court erred in granting summary judgment to Loring on PDN’s bad faith claim.

FACTS

¶ 3. In April, 1987, James Dickens sustained severe and permanent injuries when his automobile was struck by a train. At the time of the accident, Dickens was working in the course of scope of his employment with RPM Pizza, Inc. As a result of the accident, Dickens was left in a permanent vegetative state requiring twenty-four hour a day home nursing. RPM’s workers’ compensation carrier, National Union, agreed to continue paying all of Dickens’s future medical, hospital and drug expenses. On behalf of National Union, AIG manages Dickens’s claims for benefits, including authorization and payment of his medical expenses. AIG assigned Dickens’s claim to Loring, an AIG employee and claims representative. PDN, a provider of home nursing care, has provided home nursing care to Dickens since his release from the hospital.

¶ 4. In July of 1996, PDN and AIG entered into an oral contract regarding the cost of home nursing care. AIG agreed to pay $15.00 per hour for services provided by nurse aides. This rate was paid from August of 1996 until March of 1997. In March of 1997, National Union ceased or began reducing payments to PDN based upon the advice of AIG. However, in November of 1997, based on the advice of AIG, payment resumed at the contracted rate. Again, in January of 1998, AIG advised National Union to cease or reduce the payments. Loring was the individual claims adjuster who advised National Union to cease or reduce the payments, based on her assessment that there was no contract. Despite PDN’s demand to Loring and AIG for payment, Loring stood by her refusal to pay PDN for the services.

¶ 5. On January 17, 1999, another AIG workers’ compensation claimant who required home health care, Conrad Balius, was referred to PDN. AIG assigned Bali-us’s claim to Loring. Apparently, a PDN representative spoke with Loring, and Loring verified that Balius was covered. However, upon learning that PDN was the provider of home health care to Balius, Loring stated that she would not work with PDN. As a result, PDN lost Balius as a patient.

¶ 6. Thus, PDN asserts that Loring willfully and intentionally interfered with its business relations. Loring contends that while performing a routine cost comparison, she simply found a less expensive provider of home nursing and physical therapy services. In addition, Loring asserts that regardless of whether she had an ulterior motive in declining to do business with PDN, she was entitled to decline to use PDN and was entitled to a judgment as a matter of law on this claim. Loring contends that her recommendation that AIG use another provider of nursing home and physical therapy services was not actionable as tortious interference because it was merely a business choice and not tortious interference with business relations. PDN asserts that Loring’s contention is false.

¶ 7. PDN contends that the negotiation with AIG for the contract to provide home care services to Balius was already agreed upon. PDN asserts that the only reason AIG canceled the arrangements was because Loring refused to do business with PDN in an attempt to punish PDN for its previous demands for payment on Dickens’s claim. In addition, PDN asserts that AIG negotiated the same rates, not any less than PDN’s rates, with the alternate provider, Quality Home Health. Quality subsequently agreed to reduce its rates.

DISCUSSION

¶ 8. We review summary judgments de novo. Crum v. Johnson, 809 So.2d 663, 665 (Miss.2002). Motions for summary judgment are to be viewed with a skeptical eye, and if the trial court should err, it is better to err on the side of denying the motion. Id. On the other hand, the motion should be granted if the plaintiff has failed to prove one or more essential elements of his claim or if the quality of the proof offered is insufficient to sustain the plaintiffs burden of proof. Buelow v. Glidewell, 757 So.2d 216, 220 (Miss.2000).

I. TORTIOUS INTERFERENCE WITH BUSINESS CLAIM.

¶ 9. Under Mississippi law, a claim for tortious interference with business relations requires proof of the following four elements: (1) the acts were intentional and willful; (2) the acts were calculated to cause damage to the plaintiffs in their lawful business; (3) the acts were done with the unlawful purpose of causing damage and loss without right or justifiable cause on the part of the defendant (which constitutes malice); and (4) actual loss and damage resulted. MBF Corp. v. Century Business Communications, Inc., 663 So.2d 595, 598 (Miss.1995). PDN asserts that it has offered evidence of each of these elements, while Loring argues that even if PDN’s allegations were true, the insurance carrier has the right to choose who will provide home nursing and physical therapy services to an injured employee. On this basis, Loring submits that her acts were not without right or justifiable basis.

¶ 10. Miss.Code Ann. § 71-3-15(1) (Rev.2000) provides that the employee has the right to chose one competent physician and such other specialist to whom he is referred by his physician. In addition, section 71-3-15(1) provides that referrals by the chosen physician shall be limited to one physician within a specialty or sub-specialty. Based on this statute, along with the definitions provided in the Fee Schedule to Miss.Code Ann. § 71-3-15(3), PDN asserts that the injured employee, and subsequently his physician, has the right to choose his medical care provider, not the employer or its carrier. Therefore, PDN contends that since Balius’s doctor referred him to PDN, Loring has no authority or right to require that Balius be treated by anyone other than PDN.

¶ 11. The Fee Schedule defines a specialist as:

41. Specialist means a board-certified practitioner, board-eligible practitioner, or a practitioner otherwise considered an expert in a particular field of healthcare service by virtue of education, training, and experience generally accepted by practitioners in that particular field of healthcare service.

Miss. Workers’ Comp. Comm’n Fee Schedule, Med. Cost Containment Rules C. ¶ 41 (Jan. 1, 1998). Also, the Workers’ Compensation Commission defines a practitioner as “a person licensed, registered, or certified as an ... nurse ... physical therapist.” Id. ¶ 32.

¶ 12. In further support of its argument, PDN cites Dolenga v. Aetna Cas. & Sur. Co., 185 Mich.App. 620, 463 N.W.2d 179 (1990), for its holding that a rehabilitation service provider’s intentional interference with business relations claim against a workers’ compensation carrier was viable when the carrier refused to authorize services by such provider and insisted that the injured employee receive rehabilitation services from a provider chosen by the carrier. That court stated, “since it is the claimant who receives the medical treatment or rehabilitation services, it ought normally to be the claimant who chooses the provider of those services.” Id. at 181.

¶ 13. Loring, on the other hand, states that it is common practice for worker compensation insurers, in search of cost savings, to select the provider of such services. Loring contends that Miss. Code Ann. § 71-3-15 does not provide that the injured employee has the right to choose other treatment and nursing services not administered under the direction of a physician. Otherwise, Loring contends, the Legislature would have expressly provided that injured employee could not only choose his doctor, but also his nurse. Also, Loring states that PDN’s use of the Fee Schedule, as support for its argument that nurses are specialists, stretches the intent of the Legislature, since it did not define “specialist” in § 71-3-15 to include physical therapists and nurses.

¶ 14. In Norville v. Commercial Union Ins. Co., 690 F.Supp. 558 (S.D.Miss.1988), aff'd mem. 866 F.2d 1419 (5th Cir.1989), a Mississippi federal court held that the carrier had a right to de-authorize chiropractic treatment which is “other attendance or treatment” and require the injured worker to switch to a physician. That court held that the insurer was entitled to summary judgment on the chiropractor’s claim of tortious interference with business relations. 690 F.Supp. at 561-62. In that case, the court stated that “[ujnder Section 71-3-15, the employer-carrier has the right and duty to properly choose and offer medical care and other treatment to the injured employee.” We agree with this analysis.

¶ 15. We conclude that PDN’s argument that AIG, and its employee, Lor-ing, cannot choose which home nursing services provider to pay for is without merit. The language in section 71-3-15 does not provide that the injured employee has the right to choose his nurse or therapist, unless that nurse or therapist was specifícally chosen by a doctor who remained to administer care to the injured employee. The record here does not reveal that the doctor remained to administer care to the patient; he merely referred Balius to a home health care provider. Thus, this issue is without merit.

II. BAD FAITH CLAIM.

¶ 16. According to PDN, it has been held that a claims representative, such as Loring, could be held independently liable for failure to investigate a claim when her conduct constitutes gross negligence, malice, or reckless disregard for the rights of the insured. Dunn v. State Farm Fire & Cas. Co., 711 F.Supp. 1359, 1361 (N.D.Miss.1987). PDN asserts that Loring’s failure or refusal to interview adjusters who worked on Dickens’s .file (to discover the existence of the oral contract) and her failure to interview the PDN employee who negotiated Dickens’s contract constitutes a bad faith breach of contract and/or a bad faith refusal to pay benefits.

¶ 17. Loring asserts that she cannot be held liable for a bad faith breach of contract because she was not a party to the contract. Loring states that to hold otherwise would subject employees to personal liability to all vendors with which the employer dealt. Loring correctly relies on the rule of law which states that an agent acting on behalf of his employer is not personally liable for breaching his employer’s contracts. Gardner v. Jones, 464 So.2d 1144, 1151 (Miss.1985).

¶ 18. Nothing in the record reveals that Loring should be held personally accountable on the oral contract, as she is merely an employee of AIG, and her actions do not rise to the level of bad faith referred to in Dunn. This issue is without merit.

CONCLUSION

¶ 19. Based on the foregoing reasons, this Court affirms the order granting summary judgment for Ivory Loring.

¶ 20. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION.

McRAE, P.J.,

Dissenting.

¶ 21. I dissent to the majority’s finding that summary judgment was proper. I find that since a doctor had ordered the home health care as part of Dickens’s at-home care, under the circumstances the proper procedure for Loring was to file for a workers’ compensation hearing before terminating the scheduled care. Having failed to follow proper procedure under this State’s Workers’ Compensation Law, Miss.Code Ann. § 71-3-47 (Rev.2000), Loring should be found hable. If she wanted to escape potential liability, she should have followed the proper statutory procedure and requested a hearing. Therefore, I would reverse and remand.

¶ 22. For these reasons, I dissent.