author: SMITH, P.J., McRAE, P.J., EASLEY, J.,

text:
    CHEVRON U.S.A., INC. v. Alcus SMITH and Kay Smith.
    No. 1999-CA-01658-SCT.
    Supreme Court of Mississippi.
    Oct. 17, 2002.
    Rehearing Denied May 22, 2003.

      Luther T. Munford, Reuben V. Anderson, Michael B. Wallace, Amanda Jones, Robert E. Meadows, William R. Keffer, Robert 0. Allen, Jackson, attorneys for appellant.
    David T. Cobb, Jackson, Robert L. Johnson, III, Natchez, Jay Boling, Stuart H. Smith, New Orleans, LA, Robert Russell Williard, Jackson, attorneys for appel-lees.
   SMITH, P.J.,

for the Court.

¶ 1. In this oil field contamination case, Chevron, U.S.A., Inc. appeals from a judgment against it awarding landowners Alcus and Kay Smith $2,349,275.00 in damages in accordance with the jury’s answers to special interrogatories. The jury found Chevron 100% liable, but it deadlocked on the issue of punitive damages. The trial court granted a mistrial as to punitive damages, but it denied a new trial on that issue since a different jury would have to hear it, in violation of Miss. Code Ann. § 11-1-65 (2002). Chevron timely appealed to this Court, and the Smiths cross-appealed on the issue of punitive damages.

¶2. On appeal, Chevron contends (1) that the judgment for property damages should be set aside because the damages are limited to diminution in property value which the Smiths recovered from a settling defendant; (2) that the judgment should be reversed in favor of Chevron because the Smiths unreasonably refused to allow remediation by COHO, the current operator of the field; and (3) that the jury’s finding that Chevron did not act as a reasonably prudent operator was unsupported by the evidence. On cross-appeal, the Smiths claim they are entitled to a new trial on the issue of punitive damages. In its amicus curiae brief the Mississippi Independent Producers and Royalty Owners Association (“MIPRO”) raised the issue that venue was improper in Hinds County.

¶ 3. We find that the trial court erred in allowing a jury trial as the Smiths failed to exhaust administrative remedies before seeking relief in the trial court. Donald v. Amoco Prod. Co., 735 So.2d 161 (Miss.1999). The Smiths were required under our precedents to first seek restoration of their property from the Mississippi Oil and Gas Board before a trial court could consider the issue and possibly assess an appropriate measure of damages. Accordingly, we reverse the trial court’s judgment, and we render judgment here dismissing the Smith’s complaint and this action without prejudice for failure to exhaust administrative remedies. The Smiths must seek relief before the Oil and Gas Board.

FACTS

¶ 4. In 1943, Chevron acquired a mineral lease to the Brookhaven field “for the purpose of investigating, exploring, prospecting, drilling and mining for and producing oil, gas and all other minerals, laying pipe lines, building tanks, power stations, telephone lines and other structures thereon to produce, save, take care of, treat, store, transport and manufacture said minerals, and hous[e][ ] employees.” Eventually the field was unitized, and Chevron became the designated field operator. In 1966, Chevron built a saltwater facility on one acre of the field to serve the oil wells throughout the entire field.

¶ 5. Saltwater is a natural by-product of oil and gas production, and the saltwater facility in the field took saltwater in by pipelines and stored it until it was disposed of or injected into wells. Some of the formations from which the oil was produced contained naturally occurring radioactive material (“NORM”) which was also present in the water solution that was produced along with oil. The saltwater pipelines and storage tanks at issue in this case contained NORM. Small amounts of NORM can build up over time and can eventually lead to radioactive levels, which is what happened in this case.

¶ 6. In 1979, the Smiths purchased the surface rights to 55 acres of the Brookha-ven field. The Smiths lived in Wisconsin at the time, but they bought the land for the purpose of building their retirement home on it. They were aware of the oil and gas operations, including the saltwater facility that was located on the land they purchased. The saltwater facility was operated by Chevron until it sold its interest in the field to Florabama in 1990. The Smiths contend that the facility was abandoned around the time they purchased the land in 1979. Chevron claims the saltwater facility at issue was still in active operation at the time it sold its interest to Florabama.

¶ 7. The contract between Chevron and Florabama financially obligated Florabama for any environmental cleanup. Floraba-ma operated the field until 1995, when it sold its interests to COHO, whose contract in turn made it financially responsible for any cleanup. COHO continues to operate the field today.

¶ 8. In 1994, neighbors of the Smiths’ property informed the Smiths that the equipment on their property might contain NORM. This discovery was made after government testing showed that the drinking water of many of the residents had been polluted by Chevron’s operations. In 1996, the Smiths filed this lawsuit against Chevron and its parent company, Floraba-ma, COHO and other defendants in Hinds County Circuit Court. The trial court found that Florabama did not operate the saltwater facility in question and granted summary judgment in its favor. Floraba-ma filed for bankruptcy a month before trial began. At the conclusion of trial, the Smiths appealed the dismissal of Floraba-ma to this Court. While on appeal, Flora-bama settled with the Smiths for $75,000, and it was voluntarily dismissed.

¶ 9. The record indicates that one of Chevron’s experts testified that one week before trial COHO made an offer to remove the saltwater facility, but the Smiths contend the offer was not made until the eve of trial. Nevertheless, the Smiths refused the offer. In light of the refusal, COHO was granted summary judgment precluding the Smiths from recovering the cost of removal from it. This left only Chevron and its parent company as defendants. After trial, COHO filed for bankruptcy. Chevron and COHO entered into an agreement for removing equipment and soil containing NORM from the entire Brookhaven field which was approved by the Bankruptcy Court, the Mississippi Oil and Gas Board, (“Board”) and the Mississippi Department of Health. Many plaintiffs who sought relief in Lincoln County from the same defendants have allowed the cleanup. The Smiths filed this lawsuit immediately upon learning of the contamination and have continued to refuse the cleanup.

DISCUSSION

¶ 10. Donald v. Amoco Prod. Co., 735 So.2d 161 (Miss.1999), sets a binding precedent in cases where plaintiffs seek to have oil producers clean up byproduct pollution. Under that case, plaintiffs must seek restoration from the Mississippi Oil and Gas Board before a court can properly assess the appropriate measure of damages.

¶ 11. Where an administrative agency regulates certain activity, an aggrieved party must first seek relief from the administrative agency before seeking relief from the trial courts. State v. Beebe, 687 So.2d 702, 704 (Miss.1996) (citing NCAA v. Gillard, 352 So.2d 1072, 1082-83 (Miss.1977); Everitt v. Lovitt, 192 So.2d 422, 426 (Miss.1966); Davis v. Barr, 250 Miss. 54, 157 So.2d 505 (1963)). Donald states that, in cases where private plaintiffs are seeking clean up of oil production byproducts, the Oil and Gas Board “remedy is adequate and should ... [be] exhausted prior to filing a private suit.” Donald, 735 So.2d at 177. This Court cannot ignore Donald and fail to force the Smiths to seek relief from the Oil and Gas Board before filing suit in the trial court.

¶ 12. We also note that Mississippi law provides that it is the duty of the Oil and Gas Board to “make adequate rules and regulations ... requiring the disposal of waste products such as, but not limited to, mud, acids, saltwater or any corrosive products brought to the surface from any oil, gas or condensate well in this state, to prevent seepage, overflow or damage and injury to the topsoil or surface.” Miss. Code. Ann. § 53-l-17(Z) (1999). The Oil and Gas Board has seen fit to classify NORM as part of this list and to promulgate regulations defining the proper methods for preventing NORM pollution and for the disposal of such byproducts. Miss. Oil & Gas Bd. R. 68 & 69. In the creation of the Oil and Gas Board, the intent of the Legislature was that the Board was to protect the general public from the dangers inherent in the production of oil and gas. Miss.Code Ann. § 53-1-17 (1999).

¶ 13. The regulatory scheme promulgated by the Legislature and the Oil and Gas Board is designed to protect the citizens of Mississippi from pollution resulting from oil and gas drilling operations. Pollution resulting from operations like Chevron affects the entire population of Mississippi, and every citizen has an interest in seeing that violations of statutes and regulations are enforced. Thus, pollution clean up operations have been deemed the responsibility of the Oil and Gas Board. The Board possesses a specialized knowledge of the dangers presented by oil and gas exploration and drilling, and its collective expertise in such areas as the proper disposal methods for radioactive waste is the best asset available in developing an effective disposal plan for the NORM in the Brookhaven field. The Board is more suited than the average juror to understand the broad scope of the regulations and the factual scenarios presented by each case of environmental pollution.

¶ 14. This Court cannot allow a private landowner to pursue restoration of his or her land in the courts of this State by sidestepping a very vital and useful agency that could help protect the average Mississippian from the dangers of NORM pollution. Since no court can order the plaintiffs in this case to expend the award on decontaminating the property, the outcome allowed by the trial court does nothing to protect the citizens of Mississippi from the dangers of NORM contamination. Nor will this Court allow a windfall to the plaintiffs who obviously have no intention of cleaning up their property since they have refused all such offers of cleanup. Not only will requiring the aggrieved property owner to pursue his claims with the Oil and Gas Board alert the Board to possible wide-reaching violations, it will benefit the courts of this state by helping reduce the amount of time necessary to try cases like this one (if the seven week trial in this instance was not enough). The citizens of this state are better served by having an expert regulatory agency enforce the environmental statutes rather than waiting for the private citizen to bring individual actions for damages and restoration, which are no guarantee that the pollution will be eradicated. Therefore, due to the Smiths’ failure to exhaust remedies available to them from the Mississippi Oil and Gas Board prior to bringing the present litigation, this Court must reverse and render. Given this disposition, this Court does not separately address the punitive damages and venue issues.

CONCLUSION

¶ 15. Because the Smiths refused all offers of cleanup, by:passed the administrative remedy provided by the Oil and Gas Board and filed suit prior to exhausting administrative remedies, this Court must continue to adhere to Donald. Accordingly, we reverse the trial court’s judgment, and we render the judgment here dismissing the Smith’s complaint and this actions without prejudice for failure to exhaust administrative .remedies. The Smiths are required to seek clean up relief before the Mississippi Oil and Gas Board.

¶ 16. REVERSED AND RENDERED.

PITTMAN, C.J., WALLER, COBB AND CARLSON, JJ., CONCUR. McRAE, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, J. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. GRAVES, J., NOT PARTICIPATING.

McRAE, P.J.,

Concurring in Part and Dissenting in Part:

¶ 17. Because the majority’s interpretation of Donald v. Amoco Production Co., 735 So.2d 161 (Miss.1999), is not sound, I disagree. The Smiths were not required to exhaust administrative remedies by seeking restoration of their property from the Mississippi Oil and Gas Board before seeking relief in the trial court. However, I agree with the majority that the judgment in this case should be reversed. The trial court erred in fashioning the judgment from special interrogatories posed to the jury. Therefore, I would affirm the jury’s determination that Chevron is 100% liable for its negligence and reverse for a new trial on damages. I would also grant the cross-appeal on punitive damages. Accordingly, I concur in part and dissent in part.

¶ 18. In Donald, we held that “the administrative remedy [was] adequate and should have been exhausted prior to filing a private suit.” Donald, 735 So.2d at 177. It was not mandatory. It is true that the Board has jurisdiction to approve or order cleanup that will protect the public interest. Miss.Code Ann. § 53-1-17(1) (1999) states that “the board shall have jurisdiction and authority over all persons and property necessary to enforce effectively the provisions of this chapter and all other laws relating to the conservation of oil and gas.” See also Miss.Code Ann. § 53-1-29. However, we also noted in Donald that our oil and gas “statutes and regulations do not provide for or prohibit private causes of action.” 735 So.2d at 177. The issue in Donald was strict liability for waste disposal. The complaint specifically alleged that one of the defendants transported oil field waste to Donald’s property and disposed of it there. Id. at 164. The case sub judice deals with NORM, not “the wrongful act of waste disposal” but more importantly, not strict liability. Id. at 167. Strict liability is a question of law, not a question of fact. General liability is a question of fact and should be sent to a jury for that determination.

¶ 19. While the exhaustion of administrative remedies may be necessary in some instances, there are other issues in this case that do not require complete exhaustion before the Board, namely, who is liable and to what extent. Donald does not preclude the Smiths from seeking damages from Chevron. Id. at 177. The Smiths have an option to pursue cleanup under our oil and gas statutes, see Miss.Code Ann. §§ 53-1-1 to -207 (1999), and while this is the preferred route to take, the decision to seek cleanup through the Board is not dispositive of the suit for damages in this case. The majority overlooks that Donald also allows the recovery of special damages. 735 So.2d at 177.

¶ 20. I agree that the Smiths have no obligation to remediate the property and that it would be economic folly for them to spend the $2.3 million award for restoration to increase the property value to $55,000. I also agree with the majority that the Smiths may be unjustly enriched if the general verdict is allowed to stand and they pocket the money awarded for damages since they have the option to pursue cleanup through the Board. Therefore, I would reverse the judgment. However, I would affirm the jury’s finding that Chevron is 100% liable for the cleanup since that finding is supported by the evidence in the record. There is no limit on the cost or expense to Chevron to perform the cleanup. If it costs $2.3 million or $2.3 billion, Chevron is liable for completion of the cleanup.

¶ 21. The trial court erroneously fashioned the $2.3 million judgment from the special interrogatories. First, the trial court gave the jury, the trier of fact, the choice of which legal rule to apply. Such legal determinations are for the court to make, not the jury. Moreover, the special interrogatory posed to the jury regarding compensatory damages is flawed. Also, a judgment in the amount of $2.3 million is improper pursuant to Waggener v. Leggett, 246 Miss. 505, 150 So.2d 529 (1963). The Smiths were not entitled to the compensatory damages award in excess of the diminution in value of the land. In Waggener, the defendants dredged a bayou and caused the plaintiffs’ shoreline to collapse. Waggener, 150 So.2d at 531. The diminution in value was found to be no more than $500 so the trial court excluded evidence that it would cost $7,500 to restore the shore line holding that it was a permanent damage to the land and therefore the difference in the value of the land before and after the trespass was the appropriate measure of damages. Id. at 531. Waggener distinguished between permanent and temporary injury to land and the applicable measure of damages and held as follows:

For an injury to the land itself, permanent in nature, the general rule measuring damages is the difference in value of the land before and after the trespass. This means the difference in value of the entire tract, not merely the ground at the exact place of the injury. However, where the land can be restored to its former condition at a cost less than the diminution in value, if it is not restored, and also where the injuries are temporary and reparable in this sense, the cost of restoration may be used as a measure of damages. This latter rule is confined to cases where the cost of restoration is less than the difference in the value of the land before and after the trespass. See Union Producing Co. v. Pittman, 245 Miss. 427, 146 So.2d 553 (1962).

Waggener, 150 So.2d at 531. Temporary injury simply means that the - injury is reparable. There is testimony that the value of the Smiths’ land with no contamination was $55,000 and that there was a complete diminution of that value. Following Waggener, the largest amount of compensatory damages the Smiths can recover is $55,000, if there was in fact a complete diminution in value or if the cost of restoration exceeds the value of the land. Id. Donald also allows for special damages. Donald, 735 So.2d at 177.

¶ 22. Since the majority concludes that the Smiths should have gone to the Oil and Gas Board, it did not address the mistrial on punitive damages either. The Smiths filed a motion for a retrial limited to the issue of punitive damages which the trial court denied stating that “it cannot grant a new trial solely on the issue of punitive damages since Miss.Code Ann. § 11-1-65 (1972 as amended) requires that the same trier of fact hear evidence on both compensatory and punitive damages.” On cross-appeal, the Smiths seek reversal of that order.

¶ 23. The Smiths rely upon Miss.Code Ann. § 11-1-65 (2002); McCorkle v. McCorkle, 811 So.2d 258 (Miss.Ct.App.2001); and Paracelsus Health Care Corp. v. Willard, 754 So.2d 437 (Miss.1999). These two cases were remanded on punitive damages only. In McCorkle, the issue of punitive damages was never submitted to the jury during trial. Finding that the trial court erred, the Court of. Appeals remanded the case on the issue of punitive damages only for submission to a jury. McCorkle, 811 So.2d at 271. Obviously, the original jury had already been dismissed so a different jury determined punitive damages on remand.

¶ 24. Chevron correctly states that § ll-l-65(l)(e) requires the same trier of fact to determine whether to award punitive damages after it determines compensatory damages. However, Chevron suggests that since § 11 — 1—65(l)(c) mandates that in order to have a retrial on punitive damages, the Smiths would have to request a new trial as to all damages so that the same jury could determine compensatory and punitive damages. This simply is not so, especially in light of the fact that the jury was deadlocked on the issue. On retrial for punitive damages, a trial court must merely give a jury instruction as to the compensatory damages already awarded.

¶ 25. The issue of punitive damages is no different from any other issue on which a jury is deadlocked; a retrial can be granted as to the issue which the jury was unable to decide. The trial court could have granted a new trial on punitive damages alone without contravening § 11 — 1— 65. Since the trial court denied a new trial on the basis that § 11-1-65 would not permit it, I would reverse and remand on the matter of punitive damages with an instruction that the trial court inform the jury of the findings of the original jury. Since I would also reverse and remand for a determination of compensatory damages, the same jury would be deciding compensatory and punitive damages after all.

¶ 26. I find that Donald did not require that the Smiths exhaust administrative remedies. However, I would reverse and remand this case for a new trial on compensatory damages limited to the diminution in value of the property pursuant to Waggener and special damages pursuant to Donald. The jury’s finding that Chevron was 100% hable should stand. I would also remand for a new trial on punitive damages. Accordingly, I respectfully concur in part and dissent in part.

DIAZ, J., JOINS THIS OPINION.

EASLEY, J.,

Concurring in Part and Dissenting in Part:

¶27. I respectfully concur in part and dissent in part. I agree with the majority’s decision to reverse the $2,349,275 judgment granted against Chevron U.S.A., Inc., but I would reverse and grant a remittitur rather than reverse and render. In 1979, the Smiths, who lived in Wisconsin at the time, purchased the surface rights to the 55 acres located in Lincoln County, Mississippi. The Smiths never lived on any of the 55 acres in question. The property was purchased with the intent that someday they might build a retirement home on it.

¶28. The value of the Smiths’ land without contamination is $55,000. In my opinion, the judgment awarded against Chevron in the amount of $2,349,275 for contamination of the 55 acres unjustly enriches the Smiths. It is illogical to believe that the Smiths would spend their $2,349,275 award to restore the property to its uncontaminated value of $55,000. Furthermore, in my opinion, awarding the Smiths $2,349,275 to restore the property to its pristine value of $55,000 amounts to economic waste.

¶ 29. Here, we have a complete diminution of the value of the 55 acres and the cost of restoration exceeds the $55,000 set as the value of the land without contamination. Accordingly, the judgment against Chevron should be reversed and a remitti-tur granted from the trial court’s award of $2,349,275 to $55,000. See Waggener v. Leggett, 246 Miss. 505, 508-09, 150 So.2d 529, 531 (1963); Union Producing Co. v. Pittman, 245 Miss. 427, 437, 146 So.2d 553, 557 (1962).

¶ 30. My primary concern is that we have no power over the Smiths to ensure that they will actually spend the $2,349,275 judgment to actually cleanup the property. Therefore, I believe that the learned trial court and the majority have erred in their determinations. The Smiths may request that the Mississippi Oil and Gas Board (Board) order Chevron to restore the property to its pristine condition, regardless of the cost of the cleanup (be it $2,349,275 or some other amount). However, pursuing the cleanup of the property via this avenue would ensure that the property will be restored to its pristine condition. This option prevents the unjust enrichment or economic waste of the $2,349,375 award to the Smiths.

¶ 31. The Board still retains jurisdiction over the contamination and can order the operators to perform the cleanup until its completion. Miss.Code Ann. § 53-1-17(7)(1999) provides:

Notwithstanding any other provision contained in the Laws of the State of Mississippi, the [bjoard shall have exclusive' jurisdiction and authority, and it shall be its duty, to make, after notice and hearing as hereinafter provided, such reasonable rules, regulations, standards and orders, and to issue such permits as may be necessary, to regulate the use, management, manufacture, production, ownership, investigation and noncommercial disposal of oil field exploration and production waste in order to prevent, eliminate or reduce waste by pollution to acceptable levels in order to protect the public health, safety and the environment.

¶ 32. If either of the parties is aggrieved by the decision rendered by the Board, the appellate process is still available. The complaining party may appeal the Board’s findings if the agency’s actions (1) were unsupported by substantial evidence, (2) was arbitrary or capricious, (3) was beyond the power of the administrative agency, or (4) violated some statutory or constitutional right of the complaining party. Boyles v. Miss. State Oil & Gas Bd., 794 So.2d 149, 152 (Miss.2001); Miss. Employment Sec. Comm’n v. Harris, 672 So.2d 739, 741 (Miss.1996); Miss. Comm’n on Envtl. Quality v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1215 (Miss.1993); McGowan v. Miss. State Oil & Gas Bd., 604 So.2d 312, 317 (Miss.1992).

¶33. The Smiths have never pursued this course of action to have the property cleaned up. Instead, they filed suit in Hinds County, Mississippi. Furthermore, as noted by the majority, the Smiths have refused attempts to have the property cleaned. Chevron and COHO entered into an agreement to remove the equipment and soil containing the naturally occurring radioactive material (NORM) which was approved by the Bankruptcy Court, the Board and the Department of Health. COHO was granted summary judgment precluding the Smiths’ recovery of the cost of removal based on the Smiths’ refusal to allow the cleanup of the property.

¶34. As to the punitive damages, I believe that Miss.Code Ann. § 11-1-65 (2002) does not prevent retrial on the limited issue of punitive damages. While the normal procedure is to allow the same trier of fact to hear both the compensatory and punitive damages, I do not believe that Miss.Code Ann. § 11-1-65 prevents retrial on the limited issue of punitive damages where the original trier of fact was unable to reach a verdict on that particular issue.

¶ 35. However, I do not believe that the facts at bar support the award of punitive damages. The oil and gas production can result in NORM being present in the waste solution produced along with the oil. The build up of NORM over time is what produced the radioactive levels found on the property. Chevron had contracted with Florabama for the environmental cleanup of the property. Florabama operated the field until 1995, at which time, it sold its interests to COHO, making COHO responsible for the environmental cleanup of the property.

¶ 36. While I concur with affirming the trial court’s determination that Chevron is 100% liable for its negligence, I do not believe that the record supports that Chevron’s actions were reckless, wanton or grossly negligent. Therefore, I do not believe that a retrial on punitive damages is warranted in this case. Accordingly, I would reverse and remit the $2,349,275 judgment to the amount of $55,000.

      . All of the royalty owners and operators of the different tracts in the Brookhaven field agreed to pool the tracts into a single unit for consolidated operations.

      . Of course, COHO and Florabama may be contractually liable to Chevron for cleanup, but that matter is not before us.

      . The Smiths also cite to case law outside of our jurisdiction. See King v. Macri, 993 F.2d 294 (2d Cir.1993), Mattison v. Dallas Carrier Corp., 947 F.2d 95 (4th Cir.1991); Grynberg v. Citation Oil & Gas Corp., 573 N.W.2d 493 (S.D.1997). While case law outside of our jurisdiction may be instructive at times, the cases cited by the Smiths are wholly inapplicable to this case as they all involve challenges to punitive damages awards which were all decided by the same jury that'determined compensatory damages.


source: Caselaw Access Project

author: SMITH, P.J.,

license: Public Domain

text:
    Eddie BRYANT, a/k/a E-DOG v. STATE of Mississippi.
    No. 2000-CT-01214-SCT.
    Supreme Court of Mississippi.
    April 24, 2003.

      Stephen Nick, Greenville, attorney for appellant.
    Office of the Attorney General By: John R. Henry, attorneys for appellee.
   SMITH, P.J.,

for the Court.

¶ 1. Eddie Bryant (hereinafter “Bryant”) was convicted of aggravated assault, shooting into a dwelling house and manslaughter. Bryant appealed his conviction, and this Court assigned his case to the Court of Appeals. The Court of Appeals affirmed the judgment of the Circuit Court of Washington County. We granted cer-tiorari and affirm the trial court’s and Court of Appeals’ judgments as to the issues Bryant raised. However, we invoke the plain error doctrine and modify the Court of Appeals’ opinion and the sentencing order of the trial court as the record reflects that Bryant was convicted of manslaughter rather than murder under Count III of the indictment. The judgment of the trial court is therefore affirmed as modified by this Court.

FACTS AND PROCEDURAL HISTORY

¶ 2. Eddie Bryant was charged under a three-count indictment for the crimes of aggravated assault, shooting into a dwelling house and depraved heart murder. The jury returned a verdict finding Bryant guilty as charged in the first two counts and finding Bryant “guilty of manslaughter as to Count III.” In the Jury and Verdict form, the trial court correctly indicated that the jury had found Bryant guilty of manslaughter on Count III. However, the sentencing order states,

THIS DAY ... came also the defendant, Eddie Bryant, ... tried in this Court on the indictment charging him with the crimes of Count I-Aggravated Assault, Count II-Shooting into a Dwelling House and Count Ill-Murder, and having been convicted by a jury on a former day of this Court of Counts I, II, and III, now appears before the bar of the Court for sentencing.
It is, thereupon, the sentence of the Court that the defendant be and he is hereby sentenced to ten (10) years for Count I, ten (10) years for Count II and twenty (20) years for Count III, all time to run consecutive and to be served in the custody of the Mississippi Department of Corrections. Defendant is further ordered to pay court costs of $252.50 and bond fee of $20.00

Therefore, the trial court incorrectly indicated in the sentencing order that Bryant was convicted of murder. However, the trial court properly sentenced Bryant to twenty years for manslaughter. Bryant’s Notice of Criminal Disposition to the Mississippi Department of Corrections incorrectly indicates that he was convicted of murder under Miss.Code Ann. § 97-3-19(l)(b) (Rev.2000). The notice should state that Bryant was convicted of manslaughter under Miss. Code Ann. § 97-3-25 (Rev. 2000).

¶ 3. Bryant appealed his conviction, but did not raise the error regarding the nature of his conviction as an issue. After reviewing the issues Bryant raised on appeal, the Court of Appeals held that

the judgment of the Circuit Court of Washington County of conviction of count I aggravated assault and sentence of ten years, count II shooting into a dwelling house and sentence of ten years, and count III murder and sentence of twenty years, all sentences to run consecutively and to be served in the custody of the Mississippi Department of Corrections, is affirmed. Costs of this appeal are assessed to Washington County.

Bryant v. State, 2002 WL 982589,* 5(¶ 19) (Miss.Ct.App.2002) (emphasis added). The Court of Appeals also incorrectly referred to Bryant’s conviction as “Count III murder.” Bryant filed a petition for writ of certiorari and argued that it was error for the trial court to admit testimony and evidence regarding the type of projectile and shell casings found at or near the crime scene. Bryant’s petition for certiorari is silent regarding the conviction error.

DISCUSSION

¶4. We find that the issues raised in Bryant’s petition for writ of certiorari are without merit. This Court adopts the Court of Appeals’ opinion as the opinion of this Court as to the issues raised by Bryant. However, after thorough review of the record and discovery of the conviction error located in the trial court’s sentencing order, this Court must correct the error. Accordingly, we find that the judgment of the trial court regarding Bryant’s sentencing order and the opinion of the Court of Appeals should be affirmed as modified.

¶ 5. Plain error may be noticed under the authority of Mississippi Rules of Appellate Procedure 28(a)(3). That rule provides,

(3) Statement of Issues. A statement shall identify the issues presented for review. No separate assignment of errors shall be filed. Each issue presented for review shall be separately numbered in the statement. No issue not distinctly identified shall be argued by counsel, except upon request of the court, but the court may, at its option, notice a plain error not identified or distinctly specified.

M.R.A.P. 28(a)(3) (emphasis added). The plain error rule is recognized in Mississippi case law to prevent the manifest miscarriage of justice, despite failure to preserve the error. Johnson v. Fargo, 604 So.2d 306, 311 (Miss.1992). “Plain error” is error that affects the substantive rights of a defendant. Grubb v. State, 584 So.2d 786, 789 (Miss.1991). See also Johnson v. State, 452 So.2d 850, 853 (Miss.1984); House v. State, 445 So.2d 815, 820 (Miss.1984); Hooten v. State, 427 So.2d 1388 (Miss.1983); Fondren v. State, 253 Miss. 241, 175 So.2d 628 (1965). The error in Eddie Bryant’s conviction affects his substantive rights and requires correction. This Court invokes the plain error doctrine in order to correctly reflect Bryant’s conviction under Count III to be manslaughter instead of murder, as set out in the trial court’s sentencing order and Bryant’s Notice of Criminal Disposition to the Mississippi Department of Corrections.

CONCLUSION

¶ 6. Accordingly, for the reasons stated above, this Court affirms the judgment of the Circuit Court of Washington County of conviction of aggravated assault and shooting into a dwelling house. This Court affirms, as modified, the judgment of the Circuit Court of Washington County of conviction of manslaughter instead of murder.

¶ 7. AFFIRMED AS MODIFIED.

PITTMAN, C.J., WALLER, COBB, DIAZ, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY.


author: GRAVES, J.,

text:
    Christopher ROSENTHALL v. STATE of Mississippi.
    No. 2001-KA-01610-SCT.
    Supreme Court of Mississippi.
    May 8, 2003.

      Johnnie E. Walls, Jr., Greenville, attorney for appellant.
    Office of the Attorney General by, John R. Henry, attorneys for appellee.
    Before PITTMAN, C.J., EASLEY and GRAVES, JJ.
   GRAVES, J.,

for the Court.

¶ 1. In the Circuit Court of Grenada County, Mississippi, Christopher Rosent-hall was convicted of capital murder and sentenced to a term of life imprisonment without parole in the custody and control of the Mississippi Department of Corrections. Aggrieved by this conviction and sentence, Rosenthall appeals and raises the following issues:

I. WHETHER THE DEATH-QUALIFICATION OF THE JURY DURING VOIR DIRE DEPRIVED ROSENTHALL OF DUE PROCESS OF LAW BY DENYING HIM A JURY OF HIS PEERS ON' THE ISSUE OF GUILT BY DISPROPORTIONATELY ELIMINATING AFRICAN-AMERICAN JURORS IN THE COURSE OF JURY SELECTION.
II. WHETHER THE TRIAL COURT ERRED IN REFUSING PROFFERED INSTRUCTION D-4.
III. WHETHER THE TRIAL COURT ERRED IN REFUSING PROFFERED INSTRUCTION D-2.

FACTS

¶ 2. At approximately 4:30 a.m., on January 8, 2000, John Rogers, a Grenada, Mississippi, businessman, was robbed and murdered in Grenada. Rogers and his family owned and operated several businesses in Grenada, including a convenience store, check cashing business, a tax service and service station. That morning, Rogers picked up an employee, Ms. Willie Mae Norwood. They arrived at his business, “The Little Widget,” and Rogers was shot and killed as he exited his vehicle. Ro-senthall and James Pickens then took Rogers’s briefcase, which contained more than $20,000, some business records, credit cards, food stamps, food stamp stubs, and other assorted items. Although Norwood saw the entire incident and was unharmed, she was unable to identify the assailants. She died of natural causes prior to the Rosenthall trial.

¶ 3. The evidence presented by the State sufficiently established the actions of Ro-senthall and Pickens, the alleged co-defendant. Rosenthall and Pickens conspired to ambush Rogers and rob him. Pursuant to this plan, Rosenthall and Pickens laid in wait on the night before Rogers was killed. Rosenthall was armed with a shotgun at that time, but when he saw Rogers and attempted to fire, the shotgun misfired. On the following night, in the early hours of January 8, 2000, Rosenthall and Pickens again attempted to execute their plan. This time, Rosenthall was armed with a nine millimeter weapon. Rosenthall fired three shots killing Rogers.

DISCUSSION

I. JURY SELECTION

¶ 4. Rosenthall makes two different arguments under issue one. First, he argues that the death-qualification of the jury during voir dire deprived him of due process of law by denying him a jury of his peers by eliminating African-American jurors. Second, he suggests that one jury should be empaneled to try the question of the accused’s guilt and another jury should be empaneled to determine the sentence for the crime.

a. Elimination of African-American Jurors

¶ 5. Rosenthall argues that the State’s systematic exclusion of African-Americans due to their opposition to capital punishment denied him of his rights to due process and equal protection. Rosent-hall claims that the challenges for cause on the basis of anti-death penalty views resulted in exclusion of African-Americans from the jury. He does not complain about the exclusion of any particular juror, only making a general objection to all of the jurors excused for cause on this basis. After careful review of the record and Rosenthall’s arguments, it appears as though Rosenthall is making a Batson challenge, although it is not expressly stated. A proper Batson challenge requires that when prosecutors exercise peremptory challenges against members of a distinct racial group, the State must advance articulable and racially neutral reasons for doing so. Griffin v. State, 610 So.2d 354, 356 (Miss.1992). The record reflects that during the trial neither Rosenthall, nor the State nor the trial court recognized this issue as a Batson challenge. No objection was made to the jury selection process. Therefore, the State was not given the opportunity to advance reasons as to why specific veniremen were excused. This claim was not raised at trial; therefore it is barred upon appeal. Williams v. State, 684 So.2d 1179, 1208 (Miss.1996).

¶ 6. After the selection of the jury, Ro-senthall moved for a mistrial. Rosenthall alleged he was being denied a jury of his peers by the striking of jurors who had an opinion against the death penalty inasmuch as those jurors were mostly African-American jurors. The record reveals that of the twenty-three veniremen who were excused, eighteen were African-American. The test for determining whether a prospective juror’s views on the death penalty justify removal is whether the trial court finds that “the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Manning v. State, 735 So.2d 328, 335 (Miss.1999). There were veniremen who stated that they were opposed to the imposition of the death penalty and who further stated they would not be able to disregard their religious beliefs. The trial court offered consideration regarding the jury and stated:

The Court finds that this jury panel was drawn in accordance with the law by random selection by computer with all parties present. No objection was made to the selection process of the jury. The Court finds that the makeup of the jury has considerable members of each race and each gender on the panel. Some of the people that we have just been over were excused for reasons other than their position on the death penalty, so the figure of eighteen with four of them white does not accurately reflect why some of them have been excused.' In any event, the questions were asked consistent with what the law requires in relation to the death penalty. They have been excluded because of their answers and not because of anything in relation to race one way or- another. And therefore, the Motion is overruled.

This Court agrees with the trial court’s rationale. Rosenthall has not demonstrated any prejudice in the jury selection. This issue is without merit.

b. Independent Jury for Question of Guilt and Sentencing

¶ 7. Rosenthall contends that the manner in which death cases are tried should be fundamentally changed. He suggests that one jury should be empaneled to try the question of the accused’s guilt upon an indictment for capital murder and that another jury should be empaneled to determine the appropriate sentence.

¶ 8. The sentence of death was not imposed upon Rosenthall. The verdict rendered in the case at bar was a life sentence. This life sentence bars any imposition of the death sentence upon retrial. Because Rosenthall did not receive the death penalty, his assignment of error is irrelevant and thus will not be considered. See Austin v. State, 784 So.2d 186, 192 (Miss.2001). This assignment of error is without merit.

II. PROFFERED JURY INSTRUCTION D-4

¶ 9. Rosenthall alleges that the trial court erred in refusing to grant the proposed jury instruction D^4, which would have directed the jury to draw no inference against him from his failure to testify.

¶ 10. Proposed jury instruction D-4 is reprinted as follows:

The Court instructs the jury that the fact that Christopher Rosenthall did not take the witness stand and testify cannot be considered by you for any purpose and no inference whatsoever can be drawn against Christopher Rosenthall by reason of his decision not to take the stand and testify. The law gives every person charged with a crime the absolute and unqualified privilege of not testifying, and the law farther requires that no inference adverse to the defendant can be drawn by you, the jury, by reason of his decision not to testify.

¶ 11. Jury instruction C-4 is reprinted as follows:

The burden of proof in this case is on the State to prove the defendant’s guilt beyond a reasonable doubt. The defendant is not required to prove anything in this cause or to testify in his own behalf. You must not hold the fact that the defendant did not testify in this case against him or as any evidence of guilt.

¶ 12. “The trial court enjoys considerable discretion regarding the form and substance of jury instructions.” Higgins v. State, 725 So.2d 220, 223 (Miss.1998). “A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which ... is fairly covered elsewhere in the instructions, or is without foundation in the evidence.” Id. The trial court explained that this instruction was refused on the ground of repetitiveness in light of the fact that Instruction C-4 was given. Additionally, Rosenthall failed to demonstrate an abuse of discretion in the trial court’s refusal of repetitive instructions. This assignment of error is without merit.

III. PROFFERED INSTRUCTION D-2

¶ 13. Rosenthall alleges that the trial court erred in refusing his proffered jury instruction D-2.

¶ 14. Proposed jury instruction D-2 is reprinted as follows:

Members of the jury, during the course of this trial, defense counsel cross-examined James Pickens about the fact that he had entered a plea of guilty prior to this trial to Felony Robbery and Felony Manslaughter in this case and had been sentenced to Twenty-Five years (25) for the Robbery and Twenty years (20) for the Manslaughter to run concurrent to each other.
However, you are cautioned that you must not consider the fact that James Pickens has been convicted of robbery and manslaughter in this case as substantive evidence that Christopher Ro-senthall is guilty of the charges for which he is on trial today.

¶ 15. Jury instruction D-6 states:

An accomplice is someone who knowingly, voluntarily and with common intent with the principal offender unites in the commission of a crime. James Pickens has admitted to you that he was an accomplice to the murder of Mr. Rogers. The Court instructs you that the testimony of an admitted accomplice should be viewed by you with great care, caution and suspicion and you should give it such weight and credit as you deem it is entitled.

¶ 16. The record reflects that Ro-senthall was attempting to impeach State’s witness James Pickens with the fact of his conviction of crimes arising from the murder of the victim for the purpose of proving bias or interest in the case. Case law stipulates that “when defense counsel elicits the testimony complained of any valid objections were waived by the defendant.” Warren v. State, 369 So.2d 483, 486 (Miss.1979).

¶ 17. Additionally, no authority is cited by Rosenthall which alleges that he is entitled to have a cautionary instruction given concerning the impeachment of evidence that he elicited. While D-2 was not given, D-6 was given. We find jury instruction D-6 sufficient. The trial court instructed the jury to regard the accomplice’s testimony with great suspicion and to consider it with caution. That is the essence of proposed instruction D-2. Hence, the jury was properly instructed as to the law. Wheeler v. State, 560 So.2d 171, 173 (Miss.1990). No further instruction was necessary.

CONCLUSION

¶ 18. For the reasons indicated above, we affirm the judgment below.

¶ 19. CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT, WITHOUT PAROLE, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

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

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).


author: DIAZ, J., McRAE, P.J.,

text:
    ESTATE OF James Stanley WILLIAMS, By and Through Its Administratrix, Eloise WILLIAMS and Sherrie Chantel Walker, By and Through Her Mother, Next Friend and Guardian, Mary A. Walker v. CITY OF JACKSON Mississippi.
    No. 2002-CA-00275-SCT.
    Supreme Court of Mississippi.
    May 8, 2003.

      John Doyle Moore, Jackson, attorney for appellants.
    J. Anthony Williams, Jackson, attorney for appellee.
   DIAZ, J.,

for the Court.

¶ 1. The Estate of James Stanley Williams, through its administratrix, Eloise Williams, and Sherrie Chantel Walker, through her mother, Mary A. Walker, filed suit in the Circuit Court of Hinds County, Mississippi against the City of Jackson seeking damages for the wrongful death of James Stanley Williams. The plaintiffs alleged that Jackson City firefighters from Station 20 acted with reckless disregard for the safety of Williams and others on September 15, 1998, when one of the fire engines collided with Williams’s vehicle at an intersection while en route to a fire.

¶ 2. On December 2, 1999, the plaintiffs filed a motion for declaratory judgment which was denied. August 31, 2000. On June 1, 2001, the City of Jackson moved for summary judgment on the basis that it is immune from liability under Miss.Code Ann. § 11 — 46—9(c). On December 21, 2001, the circuit court granted summary judgment for the City. From this final judgment, the plaintiffs filed a timely appeal alleging that the court erred in granting summary judgment. They raise the following issues for consideration by this Court:

I. WHETHER THE ALLEGED CRIMINAL ACTIVITY OF JAMES WILLIAMS PRECLUDES RECOVERY BY HIS WRONGFUL DEATH BENEFICIARIES.
II. WHETHER THE CITY, ITS AGENTS OR EMPLOYEES, ACTED WITH RECKLESS DISREGARD FOR THE SAFETY AND WELL-BEING OF OTHERS.

FACTS

¶ 3. On September 15, 1998, fire trucks from City of Jackson Fire Station 20 were dispatched around 9:00 p.m. to a fire at the corner of Martin Luther King Drive and Dorsey Street. The route traveled to get to this fire from Station 20 is south down Medgar Evers Boulevard, passing through the intersection of Medgar Evers Boulevard and Summit Drive, turning right onto Martin Luther King, continuing several blocks, and then turning left onto Dorsey Street. Two vehicles left Station 20 en route to the fire, both with their lights, sirens, and horns on. Rescue 20 was in the lead followed by truck 20, the ladder truck, driven by RDO Keith Irving (Irving).

¶ 4. Although trained to drive the fire truck, Irving was not the usual driver. He was driving that day because the usual driver was on vacation. The day before this accident occurred, Irving had a tooth removed and had been taking antibiotics, Tylenol III with codeine, ibuprofen and Tylenol P.M. to ease the pain. Lieutenant Frankie Simpson (Simpson), Irving’s superior, had questioned him about the effects of this medication and stated that they could get someone else to drive the truck if the medicine was affecting him in any way. Irving said the medicine did not make him drowsy and that he felt fine to drive the truck. Simpson testified that he was seated next to Irving and did not observe any drowsiness while Irving was driving the truck. Simpson further stated that, based upon his eighteen years’ experience as a fire truck driver, he believed that Irving did all he could to avoid the collision. The last dose of Tylenol III that Irving had was around 8:05 p.m.

¶ 5. Upon approaching the intersection of Medgar Evers Boulevard and Summit Drive, Irving noticed a vehicle, later determined to be that of James Stanley Williams (Williams), approaching the intersection from the west, which was on Irving’s right. The fire truck was traveling at a speed around 50 m.p.h. in a 40 m.p.h. speed zone. Irving stated that the car did not yield the right of way to the fire truck and that it was trying to beat the fire truck across the intersection. Irving swerved the vehicle to the left to avoid the collision, but was unable to do so. The fire truck struck the car with its front passenger side corner in the area of the car’s driver side door. The force of the impact and the fact that Irving was veering left to avoid the collision caused the two vehicles to come to a rest in the middle of Summit Drive, just east of the intersection. The car driven by Williams caught fire, and the crew on truck 20 extinguished the fire. Williams died in the accident. Toxicology reports after the accident showed ■ that Williams’s blood alcohol content was .20%, two times the legal limit in the state of Mississippi. This is not disputed by plaintiffs. Irving’s blood test after the accident showed 36 ng/ml of codeine, an opiate found in Tylenol III. The therapeutic range for codeine is 30 to 120 ng/ml.

¶ 6. Simpson and Irving both made internal affairs statements describing the events of September 15, 1998, as outlined above. David Thorton was riding on the back of the truck at the time of the collision, and although he could not see exactly what happened, he supported the claims of Irving and Simpson by saying he knew something was wrong when they turned, because he thought they were supposed to be going down Medgar Evers to Martin Luther King on the right.

¶ 7. Three eyewitnesses, Cassandra Bilbo, Charlotte Bilbo, and William Thomas, gave written statements at the scene of the accident. Their statements described the accident the same way. Additionally, their eyewitness accounts state that Williams went around two vehicles that were stopped at the west side of the intersection in order to enter the intersection. A reconstruction of the accident was made by Sergeant Richard B. Davis (Davis) of the Jackson Police Department the day after the accident. Davis used skid marks, tire gouges in the pavement, points of impact of the vehicles and resting places of the vehicles to determine how the event occurred. When Davis was done with his report, the description of the accident matched Irving’s and the other witnesses’ description. In contrast, the plaintiffs presented the testimony of another eyewitness, Stella Howard (Howard). Howard stated that Williams had brought his car to a stop to wait until the fire truck passed through the intersection. It is unclear from her statement exactly where Williams allegedly brought his- car to a stop. Howard also stated that the fire truck could have avoided the wreck if it had been traveling at a safer speed and if the driver had reacted with a simple evasive move. Howard stated that the driver of the fire truck moved slowly and sluggishly.

DISCUSSION

¶ 8. This Court applies a de novo standard of review of a trial court’s grant or denial of summary judgment. Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002 (Miss.2001); Jenkins v. Ohio Cas. Ins. Co., 794 So.2d 228, 232 (Miss.2001); Heigle v. Heigle, 771 So.2d 341, 345 (Miss.2000). Our appellate standard for reviewing the grant or denial of summary judgment is the same standard as that of the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure, summary judgment shall be granted if “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact....” Hudson, 794 So.2d at 1002; Jenkins, 794 So.2d at 232; Heigle, 771 So.2d at 345. The burden of demonstrating that no genuine issue of fact exists is on the moving party. Id. “The presence of fact issues in the record does not per se entitle a party to avoid summary judgment. The court must be convinced that the factual issue is a material one, one that matters in an outcome determinative sense ... [T]he existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact.” Hudson, 794 So.2d at 1002 (quoting Simmons v. Thompson Mach. of Miss., Inc., 631 So.2d 798, 801 (Miss.1994)).

I. WHETHER THE ALLEGED CRIMINAL ACTIVITY OF JAMES WILLIAMS PRECLUDES RECOVERY BY HIS WRONGFUL DEATH BENEFICIARIES.

¶ 9. The Mississippi Tort Claims Act, Miss.Code Ann. §§ 11-46-1 to -23 (Rev.2002), provides the exclusive remedy against a governmental entity and its employees for acts or omissions which give rise to a suit. Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d 1234, 1236 (Miss.1999). Miss.Code Ann. § 11-46-9 (Supp.1998) provides that a governmental entity and its employees acting within the course and scope of their employment shall not be liable for any claim based upon an act or omission enumerated therein. If the act or omissions fall under the subsections of § 11 — 46-9, then the governmental entity is exempt from liability. Lang, 764 So.2d at 1237.

¶ 10. The applicable exception to the City’s liability is found in Miss.Code Ann. § ll-46-9(l)(c), which states that a governmental entity shall not be liable for any claim

Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in disregard of the safety and well-being of any person not engaged in criminal activity at the same time of the injury.

¶ 11. Fire Truck 20 was answering a fire call and was therefore providing “fire protection” within the meaning of § 11-46-9(l)(e). The City then has two avenues of immunity: (1) if the decedent was engaged in criminal activity, then the City is immune, and (2) if the decedent was not engaged in criminal activity, and if the City’s employees did not act with reckless disregard, then the City is immune. Finding both avenues of immunity applicable, we affirm.

¶ 12. It is undisputed that Williams’s blood alcohol content was .20%, two times over the limit allowed under the law of Mississippi, at the time of the accident. Driving under the influence is criminal activity in Mississippi. Miss.Code Ann. § 63-11-30 (1972), as amended. “While we have held that the criminal activity supporting [§ ll-46-9(l)(c) ] must be more than fortuitous, we have never suggested that such activity must rise to the level of a felony.” Bridges v. Pearl River Valley Water Supply Dist., 793 So.2d 584, 588 (Miss.2001) (citing City of Jackson v. Perry, 764 So.2d 373 (Miss.2000)). A person can be convicted of a misdemeanor in Mississippi for first and second DUIs and for a felony if convicted a third time. Therefore, Williams was engaged in criminal activity within the meaning of § ll-46-9(l)(c) at the time of this accident.

¶ 13. Plaintiffs contend that Williams’s vehicle was safely stopped at the intersection when the fire truck ran into him. This claim is disputed by the testimony of numerous witnesses, and it is not supported by the facts which reveal that the collision occurred in the middle of the intersection. To create a genuine issue of material fact, the evidence must be significantly probative. Murphree v. Fed. Ins. Co., 707 So.2d 523, 529 (Miss.1997). We conclude that the evidence presented by plaintiffs is not significantly probative.

¶ 14. Even had plaintiffs’ contention been supported by the facts, it would not change the fact that Williams was intoxicated. It is therefore immaterial because it could have had no effect on the outcome of this action. Operating a vehicle involves both the moving and the stopping of a vehicle and when these are done under the influence of alcohol, it is considered criminal activity which, in this instance, operates to limit the duty owed by police and fire personnel under § 11 — 46—9(l)(c).

¶ 15. In order for recovery from a governmental entity to be barred because of the victim’s criminal activity, the criminal activity has to have some causal nexus to the wrongdoing of the tortfeasor. City of Jackson v. Perry, 764 So.2d at 379. This is because the statute was “not designed to protect grossly negligent or intentional tortfeasors from liability where the fact that the victim is engaged in a criminal activity is merely fortuitous and has no relation to the transaction out of which liability would otherwise arise.” Id.

¶ 16. Plaintiffs’ contention that Williams was safely stopped at the intersection is contradicted by the testimony of several witnesses, the point of impact and rest, and the results of the accident reconstruction. The reality is that Williams either stopped in the middle of the intersection or tried to beat the fire truck through the intersection and failed. Either of these possibilities were poor decisions likely induced by Williams’s intoxication. A sober person would not stop in the middle of an intersection with a fire truck coming at them. A sober person would also know that they should not try to beat a fire truck across an intersection. All the other drivers at the intersection yielded to the fire truck.

¶ 17. There is not enough credible evidence here to present any general issues of material fact. Furthermore, there is a clear nexus between the criminal activity of Williams and the injury suffered by him. Had he not been driving while intoxicated, Williams would not have attempted to beat the fire truck through the intersection and would not have been killed. Finding that there was a causal nexus between Williams’s criminal activity and the actions of the City employees in this case, we conclude that the immunity afforded by § ll-46-9(l)(c) applies.

¶ 18. This assignment is without merit.

II. WHETHER THE CITY, ITS AGENTS OR EMPLOYEES, ACTED WITH RECKLESS DISREGARD FOR THE SAFETY AND WELL-BEING OF OTHERS.

¶ 19. Next, plaintiffs argue that, despite Williams’s negligence, they should still be allowed to recover if the City acted in reckless disregard for the safety and well-being of other motorists. A similar argument has recently been rejected by our Court of Appeals. See Tory v. City of Edwards, 829 So.2d 1246 (Miss.Ct.App.2002).

¶ 20. In Tory, the Court of Appeals rejected the appellant’s contention that the trial judge was required to make a finding as to whether the officers’ conduct was in reckless disregard for the safety of others. The court reasoned that such a finding would have removed the statutory requirement that an individual bringing suit against a law enforcement officer not be involved in criminal activity at the time of injury. Tory, 829 So.2d at 1249-50. We agree with the Court of Appeals. The Legislature decided to limit the recovery rights of individuals injured while committing criminal acts, and we decline to circumvent this reasonable decision.

¶ 21. Moreover, there is no credible evidence that the City and its employees acted with reckless disregard for the safety of Williams or anyone else. Rather, the evidence supports the conclusion that the City employees were circumspectly carrying out their duties as fire department personnel, while Williams was driving under the influence of alcohol contrary to the laws of this State. Though the record reveals that Irving was taking medication, there is evidence that it was on the low side of the therapeutic range and that he was not impaired. Williams’s death is a tragedy, however, it was caused by his own negligence and disregard for the safety of himself and others. We decline to hold the City of Jackson responsible.

CONCLUSION

¶22. Miss.Code Ann. § ll-46-9(l)(c) exempts governmental entities from liability when the injured party was engaged in criminal activity. Because Williams was operating a motor vehicle while his blood alcohol content was undisputedly two times above the legal limit at the time of the accident, he was engaged in criminal activity. Therefore, this Court agrees that the City of Jackson is exempt from liability and affirms the trial court’s judgment.

¶ 23. 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:

¶ 24. Since I disagree with the majority concerning the trial court’s grant of summary judgment, I dissent. A motor vehicle moving violation should not be considered a “criminal activity.” If it is, then why isn’t Irving’s conduct classified as “criminal activity” as he was under the influence the prescription pain killers the day of the accident? Additionally, Williams’s apparent intoxication at the time of the accident should not prohibit his heirs from presenting their case at trial. Irving was under the influence of prescriptive pain relievers and was operating his vehicle in reckless disregard thereby fulfilling the immunity exception of the Mississippi Tort Claims Act.

¶ 25. The majority finds that summary judgment was proper since Williams was legally intoxicated at the time of the accident and since some evidence tended to show that the accident may have been his fault. This is putting the “cart before the horse.” The majority relies on a section of the Mississippi Tort Claims Act which provides immunity for injury and damages resulting from the victim’s criminal activity. Miss.Code Ann. § ll-46-9(l)(c). However, this Court has stated that “the criminal activity supporting this exemption must be more than fortuitous.” Bridges v. Pearl River Valley Water Supply District, 793 So.2d 584, 588 (Miss.2001) (citations omitted). Further, “the intent of the statute is to protect law enforcement officers and their governmental employers from lawsuits arising out of the performance of their duties, when an alleged victim is involved in criminal activity.” Id. As explained by this Court, the logic behind the statute does not address a situation such as this where Irving, the government employee, was not involved in the “performance or execution of [his] duties or activities” in connection with Williams’s alleged criminal activity. Miss.Code Ann. § 11-46 — 9(l)(c). Irving was not pursuing Williams or arresting Williams. In fact, Irving’s accident with Williams had no nexus and was only happenstance. Further, there was evidence that Williams had preempted the intersection and the city driver should have yielded. Miss.Code Ann. § 63-3-801(1) (Rev.1996) (driver approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway).

¶26. Additionally; the majority disregards Irving’s own intoxication due to prescription pain relievers. The Mississippi Tort Claims Act provides an exception to immunity when a government employee is acting in “reckless disregard of the safety and well being of any person.” Miss.Code Ann. § ll-46-9(l)(c). Irving was operating a fire truck while under the influence of prescription narcotics. He was operating a full size, heavy duty, metal fire truck while under the influence and haven taken Tylenol III, codeine, ibuprofen, and Tylenol P.M. within hours before the wreck and another dose of Tylenol III less than an hour before the wreck. His supervisor even knew of his condition and allowed him to drive the fire truck. Additionally, Irving was exceeding the speed limit by at least 10 m.p.h. This Court has held that “reckless disregard” is more than “gross negligence” but less than “specific intent.” City of Jackson v. Lipsey, 834 So.2d 687, 691 (Miss.2003) (citations omitted). Having reviewed the testimony and evidence presented, there was enough evidence to go to trial on the issue of reckless disregard.

¶ 27. The trial court erred in granting summary judgment to the City. I would reverse the judgment below and remand this case for trial. For these reasons, I respectfully dissent.

      . Sherrie is the minor daughter of James Stanley Williams, and Mary A. Walker.


author: PITTMAN, C.J.,

text:
    TUPELO AUTO SALES, LTD. v. Gary P. SCOTT.
    No. 2001-CA-01979-SCT.
    Supreme Court of Mississippi.
    May 8, 2003.

      Shelby Kirk Milam, Oxford, Paul Nathan Jenkins, Tupelo, S. Duke Goza, Oxford, Roger M. Tubbs, Tupelo, attorneys for appellant.
    Gregory W. Harbison, Tupelo, attorney for appellee.
    Before PITTMAN, C.J., WALLER and CARLSON, JJ.
   PITTMAN, C.J.,

for the Court.

¶ 1. In response to a complaint filed by Gary P. Scott alleging that it breached various implied and statutory warranties, Tupelo Auto Sales, Ltd. (“TAS”) filed a Motion to Compel Arbitration and Dismiss the Complaint with prejudice. The circuit court entered an order denying the motion, and from this order TAS appeals.

FACTS

¶ 2. On December 2, 1999 Tupelo Auto Sales sold Gary P. Scott a used 1997 Chrysler Sebring convertible. In August of 2001, Scott filed a complaint alleging that TAS breached its implied warranty of merchantability and certain provisions of the Mississippi Motor Vehicle Warranty Enforcement Act. Scott claims that shortly after purchasing the vehicle, he noticed that one of the headlights was out and a noise coming from the power steering system. He took the car in for repairs and discovered several other general defects ranging from worn brakes to a temperamental passenger window switch.

¶ 3. In its answer, TAS asserted that any claims that Scott may have are covered by the Arbitration Agreement signed by Scott contemporaneously with his purchase of the convertible. This agreement was printed in full in a separate document apart from the contract to purchase the car and the financing agreement. It is titled “Arbitration Agreement.” After filing its answer to the complaint, TAS filed a motion to Compel Arbitration and Dismiss the Claims with prejudice. In his response to TAS’s motion, Scott claimed that he requested arbitration from TAS but received no response. He claimed that this failure to respond rendered the contract voidable, and he stated that in his response that he “elected to void” the arbitration provisions in the contract. Neither the record nor the parties’ briefs provide specifics regarding TAS’s alleged failure to respond to Scott’s request for- arbitration.

¶ 4. On December 20, 2001, the trial court entered an order denying the motion to compel arbitration. No explanation for this ruling is found in the order, which summarily denies the motion.

STANDARD OF REVIEW

¶ 5. The grant or denial of a motion to compel arbitration is reviewed de novo. East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (Miss.2002) (citing Webb v. Investacorp, Inc., 89 F.3d 252, 256 (5th Cir.1996)).

STATEMENT OF APPELLATE JURISDICTION

¶ 6. Initially, the trial court’s order appears to be interlocutory and thus insulated from review by this Court. Scott seeks relief on state law grounds in his complaint, alleging breach of implied warranties of merchantability and fitness as codified in Miss.Code Ann. §§ 75-2-314(2)(c) & 75-2-608(l)(a) as well as breach of express warranties found in the Mississippi Motor Vehicle Warranty Enforcement Act as codified in Miss.Code Ann. § 63-17-151 and following. The trial court’s order denying the motion to compel arbitration leaves the state claims for breach of warranty intact and pending resolution at the trial level.

¶ 7. However, the Federal Arbitration Act provides that an appeal can be taken from an order denying a motion to compel arbitration, 9 U.S.C. § 16(a)(1)(C) (2002), and the Fifth Circuit allows such an appeal. See, e.g., Walton v. Rose Mobile Homes, LLC, 298 F.3d 470 (5th Cir.2002). Some state courts have also held that an appeal from an order denying a motion to compel arbitration is the appropriate avenue of review. See A.G. Edwards & Sons, Inc. v. Clark, 558 So.2d 358, 360 (Ala.1990); Walton v. Lewis, 337 Ark. 45, 987 S.W.2d 262, 264 (1999); Dakota Wesleyan Univ. v. HPG Intern., Inc., 560 N.W.2d 921, 922-23 (S.D.1997).

¶ 8. Recently, this Court has reviewed two cases on interlocutory appeal, pursuant to M.R.A.P. 5, where the trial judge denied a motion to compel arbitration. See Oakwood Homes Corp. v. Randall, 824 So.2d 1292 (Miss.2002); East Ford, 826 So.2d at 711. We have also recently reviewed an order granting a motion to compel arbitration and dismissed the appeal from that order as interlocutory. See Banks v. City Fin. Co., 825 So.2d 642 (Miss.2002). Similarly, we have reviewed on the merits and áffirmed an order granting a motion to compel arbitration, but did not discuss this Court’s jurisdiction as the issue was not raised as it was in Banks. See Russell v. Performance Toyota, Inc., 826 So.2d 719 (Miss.2002). Finally, we have affirmed an order denying a tardy motion to compel arbitration which reached us on direct appeal after a jury trial. See Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 619 So.2d 908 (Miss.1993).

¶ 9. The instant case was not granted interlocutory appeal per M.R.A.P. 5, nor is the order denying the motion to compel arbitration certified as final judgment per Miss. R. Civ. P. 54(b). Although Mississippi has a statute allowing for appeals from an order denying a motion to compel arbitration, this statute only applies to construction contracts. See Miss.Code Ann. §§ 11-15-141 & 11-15-101(2). See also Miss.Code Ann. §§ 11-15-1 to -37, which deals with arbitration, but has no such appeals provision. The statute generally-allowing for appeals from circuit court reads as follows:

An appeal may be taken to the Supreme Court from any final judgment of a circuit or chancery court in a civil case, not being a judgment by default, by any of the parties or legal representative of such parties; and in no case shall such appeal be held to vacate the judgment or decree.

Miss.Code Ann. § 11-51-3 (Rev.2002).

¶ 10. Since it appears to us after examining our statutes and case law that there may be some confusion as to the finality of an order denying a motion to compel arbitration and thus this Court’s jurisdiction, we find a bright-line rule must be established here. The lack of a final judgment or a grant of a petition for interlocutory appeal notwithstanding, we find that we have jurisdiction over this appeal. Adopting the procedure of the Federal Arbitration Act and following the lead of other-jurisdictions, we find an appeal may be taken from an order denying a motion to compel arbitration.

ANALYSIS

I. WHETHER THE TRIAL COURT COMMITTED A REVERSIBLE ERROR BY DENYING TUPELO AUTO SALE’S MOTION TO COMPEL ARBITRATION WHEN A CONTRACT TO ARBITRATE EXISTED BETWEEN TUPELO AUTO SALES AND MR. SCOTT AND THE DISPUTES AT BAR FALL WITHIN THE SCOPE OF THAT AGREEMENT.

¶ 11. The main issue on appeal is whether the trial court properly denied Tupelo Auto Sales’s Motion to Compel Arbitration. TAS contends that the arbitration agreement covers the resolution of the claims Scott asserts against it for the problems he has encountered with his convertible. Scott argues that the arbitration agreement is unconscionable. He also argues that since his repeated efforts to arbitrate his claims against TAS were ignored, the trial court was correct in denying the motion and retaining jurisdiction as TAS waived its right to compel arbitration. TAS replies that the arbitration agreement is not unconscionable, TAS did not waive its right to compel arbitration, and Scott is estopped from making this argument because he first attempted arbitration and thus acknowledged its binding validity.

¶ 12. We find this case to be so similar to the recently decided case of Oakwood Homes Corp. v. Randall, that its outcome determines the outcome here. There, this Court granted interlocutory appeal to examine whether a trial court erred in denying a motion to stay litigation and compel arbitration. We affirmed the trial court’s decision because we found the record wholly inadequate for appellate review and presumed the trial court’s decision to be correct. 824 So.2d at 1293-94. The appellant suffered the sanction for failing in its duty to preserve the record for consideration and showing therein how the trial court erred. Id. The order denying the motion to compel arbitration stated no grounds as to why the trial court denied the motion. There existed no transcript of the recessed hearing on the motion, and the appellee did not even respond to the motion. Id. at 1293, 1294.

¶ 13. The instant case is similar in that no transcript of the hearing on the motion to compel arbitration exists in the record, and attempts by this Court to obtain one have been fruitless. The trial court’s order, like the one in Oakwood Homes, summarily denies the motion without elaboration. While Scott did respond to the motion to compel arbitration — framing the issues similarly before both the trial court and this Court — we find this fact provides no greater weight to an argument that the trial court’s ruling is in error where the order and the record do not provide reversible grounds. Therefore, consistent with Oakwood Homes, we find that the trial court’s judgment should be affirmed and this case remanded.

CONCLUSION

¶ 14. Having found that we have jurisdiction to hear this appeal, we conclude that Tupelo Auto Sales has wholly failed to demonstrate how the trial court erred in its arriving at its judgment. Therefore, the trial court’s judgment is affirmed, and this case is remanded for further proceedings.

¶ 15. AFFIRMED AND REMANDED.

SMITH, P.J., WALLER, COBB, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., AND DIAZ, J., CONCUR IN RESULT ONLY.

      . This was apparently done after a hearing; however, there is no transcript of the hearing in the record.


author: MYERS, J.,

text:
    Dexter FULTON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00716-COA.
    Court of Appeals of Mississippi.
    May 6, 2003.
    Dexter Fulton (pro se), attorney for appellant.
    Office of the Attorney General by: Jean Smith Vaughan, attorney for appellee.
    Before KING, P.J., MYERS and GRIFFIS, JJ.
   MYERS, J.,

for the court.

¶ 1. Dexter Fulton pled guilty to the crime of burglary and was sentenced to seven years’ imprisonment. Fulton filed a petition for post-conviction relief, which was denied. Fulton filed a notice of out-of-time appeal after being granted leave to do so by the Lowndes County Circuit Court, which did not receive the first notice of appeal Fulton claimed he sent. Fulton appeals asserting:

1. HE WAS DENIED THE RIGHT TO A SPEEDY TRIAL;
2. HE WAS DENIED THE RIGHT TO A PRE-TRIAL HEARING;
3. HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

STATEMENT OF FACTS

¶ 2. According to Fulton, he was arrested and indicted for the crime of burglary of a business. Fulton was released on a bond but was incarcerated after a judgment nisi was obtained after he failed to sign in at the courthouse. Fulton pled guilty to the burglary charge and was sentenced on March 7, 2001.

¶ 3. The trial court has four sessions: February, May, August, and November. Fulton’s case was continued from the November session to the February session due to the defense’s request for more time for discovery. Other continuances were made due to another trial, the necessity for a mental examination of Fulton, and the absence of the defense attorney, who was out of town.

LEGAL ANALYSIS

1.FULTON WAS NOT DENIED THE RIGHT TO A SPEEDY TRIAL

¶ 4. A guilty plea waives all non-jurisdictional rights or defects, Anderson v. State, 577 So.2d 390, 391 (Miss.1991), including the right to a speedy trial. After reviewing the transcript, we conclude that there was nothing improper about his guilty plea.

¶ 5. Even without the guilty plea, there would not have been a speedy trial violation. Continuances were granted because of discovery, congested court docket, other trials, attorneys out of town, and a mental examination of the defendant. These could have been found as reasonable grounds for delay.

2. FULTON WAS NOT DENIED THE RIGHT TO A PRE-TRIAL HEARING

¶ 6. As stated earlier, a guilty plea waives all non-jurisdictional rights or defects, Anderson, 577 So.2d at 391, including the right to a pre-trial hearing. Fulton was not denied the right to a pre-trial hearing.

3. FULTON WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

¶ 7. The standard to be applied to an ineffective assistance of counsel claim was set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove ineffective assistance of counsel, it must be shown (1) that the counsel’s performance was deficient, and (2) the deficient performance caused prejudice to the defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Walker v. State, 703 So.2d 266, 268(¶ 8) (Miss.1997). The deficiency and the prejudicial effect-are judged by looking at the totality of the circumstances, and there is a strong presumption counsel’s performance fell within the wide range of reasonable professional assistance. Hiter v. State, 660 So.2d 961, 965 (Miss.1995). The burden is on the defendant to demonstrate the Strickland factors to support an ineffective assistance of counsel claim. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990).

¶8. Fulton argues this issue based on two points. The first is that it was error by his attorney to plead rather than raise the right to a speedy trial. While it would be error for an attorney to fail to raise the issue of speedy trial if it was meritorious, as stated earlier, there would not have been a speedy trial violation in this case due to the reasonable delays.

¶ 9. Fulton’s second argument is that he received ineffective assistance of counsel because the attorney was court-appointed. He alleges that the attorney refused to contact him or talk to the judge on his behalf. Fulton argues that “most, but not all” court-appointed attorneys are not going to work to their fullest on behalf of their clients because the State will pay them anyway. We disagree with this generalization about court-appointed attorneys.

CONCLUSION

¶ 10. Fulton pled guilty to the crime of burglary. He waived certain rights by that plea. Fulton received effective assistance of counsel. Although Fulton brought up other grievances in his reply brief, because those grievances were made in the reply brief and were not addressed properly as issues in the appellant brief, we decline to discuss them.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY DISMISSING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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


text:
    Wesley ARCHIE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00514-COA.
    Court of Appeals of Mississippi.
    May 6, 2003.

      Ross R. Barnett, Jackson, attorney for appellant.
    Office of the Attorney General by: Deirdre McCrory, attorney for appellee.
    Before KING, P.J., MYERS and GRIFFIS, JJ.
   MYERS, J.,

for the court.

¶ 1. Wesley Archie was convicted by a jury of possession of cocaine, as a habitual offender and sentenced to sixteen years’ imprisonment without the possibility of parole, suspension, or early release. He appeals his conviction arguing that he is entitled to a new trial based upon jury misconduct.

STATEMENT OF THE FACTS

¶ 2. Archie was indicted and tried as a habitual offender for possession of cocaine. At the conclusion of Archie’s trial, the trial judge instructed the alternate juror not to retire with the other members of the jury to deliberate the verdict. The trial judge specifically told the alternate juror, “[y]ou will not retire with the other members of the jury to deliberate the verdict. If you have any personal property in the jury room, I will allow you to retrieve that.” When the jury returned with a guilty verdict, a polling of the jury was done at defense counsel’s request. It was discovered that the alternate juror had disobeyed the trial judge and had gone into the deliberation room. The trial judge sent the jury, except the alternate juror, back to the deliberation room. The following is the conversation between the judge and the alternate juror:

THE COURT:. Okay. Mr. * * * * *, do you remember earlier when the jury retired to deliberate the verdict and I told you that you were the alternate juror?
JUROR: Yes, sir.
THE COURT: And you would not retire with the other members of the jury to deliberate the verdict? Do you remember me telling you that?
JUROR: Yes, sir.
THE COURT:' Then why did you go in the jury room?
(NO RESPONSE)
THE COURT: Have you got any explanation?
JUROR: No, sir, I don’t.
THE COURT: Okay. Did you take part in the discussions in the jury room about this verdict?
JUROR: Yes, sir, I did.

¶ 3. The trial judge then individually recalled each juror back to ask what influence the alternate juror had over their decision. The judge and the attorneys questioned the jurors and discovered that the alternate juror had talked about his personal experiences with drugs and crimes. It was discovered that one juror admitted to being influenced by the alternate juror. The following is the questioning between the judge and counsel and the juror:

THE COURT: Mr. * * * * *, you can just have a seat over there, will be fine. Mr. * * * * *, you were a member of the jury. Mr. * * * * *, who’s seated behind you, was the alternate juror and was not supposed to retire with you to deliberate the verdict. My question to you is this: Did Mr. ***** gay any_ thing in the jury room that influenced your decision in this case? You already told me you voted for the verdict that was read. Did anything Mr. ***** said influence your vote on this verdict?
JUROR: Somewhat.
THE COURT: Okay. Do you remember what he said?
JUROR: He was talking the whole time, so I’m just saying he probably talked more than anybody else, so it could have possibly in a way, because initially, just to be honest about it, I voted not guilty, and I posed the question to you on the paper, and you wrote whatever you wrote on there, and from what I was asking, everybody else convinced me why they voted the way they did and that there was something that I didn’t hear, and everybody convinced me that something was said a certain way during the trial which changed my vote. But he was talking more than anybody else, so it possibly could have.
THE COURT: Okay. Well, let me ask you this way. If Mr. ***** had not been in the jury room and had said what you heard him say, would you have arrived at the same verdict?
JUROR: Would I have voted the same initially?
THE COURT: No. Would you have arrived at the same verdict?
JUROR: I mean, yeah. After voting not guilty, then having to go back and review the whole situation, yes, I would have.
THE COURT: Okay. So your decision, then, was made independently of what Mr. ***** sayS or said?
JUROR: Yes, finally, it was, but I’m saying initially he could have had something to do with it. He could have influenced my vote.
THE COURT: He could have?
JUROR: Yes.
THE COURT: All right. The question is, did he? If he had never said what you heard him say in the jury room, would you have voted guilty based on what everybody else said?
JUROR: Well, that’s what I’m saying. Initially, I voted not guilty.
THE COURT: I understand.
JUROR: Then the jury had to convince me why I should vote the way that I eventually voted.
THE COURT: I understand that, but what I’m trying to find out is what part did Mr. ***** piay jn that, did his comments influence you or not influence you to vote guilty. So the question is, if he had not said anything, would what the other jurors said, would that have convinced you to vote guilty?
JUROR: I mean, I convinced myself after we reviewed the evidence again.
THE COURT: Okay. You convinced yourself, but had Mr. ***** not been in the jury room and said what he said, would you still have arrived at a verdict of guilty?
JUROR: I would have still arrived, yes.
THE COURT: No matter what he said?
JUROR: No matter what. Initially, he could have.
THE COURT: Well, I’m not talking about initially; I’m talking about the final verdict. Is there
anything that Mr. ***** said that influenced your final verdict?
JUROR: No.
THE COURT: Okay.
MR. BARNETT: Mr. * * * * *, you said you first voted not guilty. Then after conferring with your fellow jurors, you changed your vote to guilty. Is that fair to say?
JUROR: Yes.
MR. BARNETT: And in conferring with your fellow jurors, was Mr. ***** one of them that you
conferred with?
JUROR: Yes.
MR. BARNETT: And you said, I believe, that he talked more than almost any other juror; is that
correct?
JUROR: Yes.
MR. BARNETT: And so would it be fair to say that his talking was part of the influence in changing your vote from not guilty to guilty?
JUROR: Well, he was part of us getting back together and trying to get some understanding out of the situation because I only had one question about the whole case. There was a thin line between possibly ruining somebody’s life for 25, 30, whatever number of years, and I wasn’t going to just vote the way that they voted. I had to clear this — we had to replay this thing in order for me to feel comfortable with the decision that was finally made.
MR. BARNETT: Right. And did Mr. ***** play a part in that?
JUROR: Initially. I don’t know how to better say it. If he wasn’t supposed to be with us or he wasn’t supposed to convey information, quite naturally, initially, if he was conveying information, it could have or it could not have affected the way that I voted. Do you understand what I’m saying?
MR. BARNETT: I think I do, and I understand that you changed your vote after conferring with your fellow jurors, and you told me that Mr. ***** was one of the ones that you conferred with because he talked and y’all listened.
JUROR: Yeah, but when I finally made my decision, Mr. ***** had nothing to do with that. When I finally decided that, okay, I understand, we all had an understanding that I did not understand previously, I made my own decision.
MR. BARNETT: Okay. I’m not trying to put words in your mouth because I understand you say you made your own decision, and once you made your own decision, you stuck to it.
JUROR: Right.
MR. BARNETT: Right. I understand that. But the question is, did Mr. ***** play a part in you making your decision?
JUROR: My final decision?
MR. BARNETT: Yes.
JUROR: No.
MR. BARNETT: He did not?
JUROR: No.
MR. BARNETT: Well, wasn’t he one of the ones that influenced you to change your vote?
JUROR: No, no, no, no, no. Yes. Well, no. I’ll just say it this way and leave it at
this. When I made my final decision, my final decision was not affected by him in any shape, form or fashion, but what you have to understand, with him conveying, talking all the time, I’m sure he affected somebody else’s decision.
MR. BARNETT: But not yours?
JUROR: I’m sure he affected somebody else’s decision all along.
MR. BARNETT: Do you have somebody in mind?
JUROR: I mean whoever else was a part of the jurors.
MR. BARNETT: Okay. Well, I guess we’re on the same—
JUROR: I’m not trying to make this complicated for you. The only thing I’m saying is, when I made my final decision, he had nothing to do with it.
MR. BARNETT: Okay. It’s the process, though, between your first decision and your making your final decision is what I’m talking about. In that process there before you made your final decision, did he play a part in conveying information to you that would help you make up your mind?
JUROR: No.
MR. BARNETT: No?
JUROR: No.
MR. BARNETT: Well, other jurors did, didn’t they?
JUROR: The other jurors did, yes.
MR. BARNETT: Yes.
THE COURT: How do you know that it affected other jurors and which ones did it affect?
JUROR: Well, let me just say it this way. Let me say this. I was the only person who voted not guilty.
THE COURT: All other 12 people in the jury room with you voted guilty?
JUROR: Yes. I was the only one that voted not guilty.
THE COURT: Okay.
JUROR: And they had to prove to me and help me understand better the situation because there was some intricate detail in the case that I didn’t understand or didn’t hear.
THE COURT: All right. I understand all that, but I’ve got two issues I need to clear up with you, and the first one is this: Did you base your final decision on anything that Mr. ***** said in the jury room?
JUROR: No, no, no.
THE COURT: All right.
JUROR: No.
THE COURT: And the second thing is this: You told Mr. Barnett that you’re sure that what Mr. ***** said affected other jurors or influenced them.
JUROR: There’s a possibility it could have. I don’t have any evidence to say that.
THE COURT: Okay. That’s what I’m asking. You said that it did. I’m asking you which jurors did it affect.
JUROR: I don’t know. It could have affected some, all or none.
THE COURT: All right. Now I hear you saying he could have. You don’t know for sure; is that right?
JUROR: Let me say it again. Let me say this to clear things up. He could have, he may have affected all or none. I don’t know who he affected.
THE COURT: All right.
JUROR: He may not have affected anybody.
THE COURT: I understand. So mainly you’re saying that he could have; you just don’t know?
JUROR: I just don’t know.
THE COURT: Because you can’t read their minds.
JUROR: Exactly.

¶ 4. The trial judge decided that the verdict was not tainted. He accepted the verdict and overruled a motion for a new trial. It is from this ruling that Archie appeals.

LEGAL ANALYSIS

¶ 5. Mississippi law provides that “[a]n alternate juror who does not replace a regular juror shall be discharged at the time the jury retires to consider its verdict.” Miss. Code Ann. § 13-5-67 (Rev, 2002). Clearly, mistake or not, the judge was in violation of this statute in the instant case. According to the Mississippi Supreme Court case of Luster v. State, alternate jurors may not be present, nor may they participate in any discussions with the other jurors if they are not replacing one of those jurors for the remainder of the deliberations. Luster v. State, 515 So.2d 1177, 1180 (Miss.1987). However, Luster also provides that nothing more than harmless error will result from such a mistake by the judge if the appellant has failed to show that he or she was prejudiced by the alternate juror’s presence during deliberations. Id.

¶ 6. Even though the trial judge attempted to assess and rectify the damage done by the alternate juror, it is apparent that there may have been a contaminated verdict and Archie was prejudiced by the presence of the alternate juror. Maldonado v. State, 796 So.2d 247 (Miss.Ct.App.2001). Therefore, Archie is entitled to a new trial.

¶ 7. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS REVERSED AND REMANDED FOR A NEW TRIAL. COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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

      . The trial judge noted that this was the first time he had a criminal verdict that-was thirteen to nothing.

      . Note that the name of the alternate juror has been removed.

      . Note that the name of the juror has been removed. The person this juror and the judge are referring to as an influence is the alternate juror.


author: BRIDGES, J.,

text:
    Roy Scruggs GOLMON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00455-COA.
    Court of Appeals of Mississippi.
    May 6, 2003.
    Roy Scruggs Golmon (Pro Se), attorney for appellant.
    Office of the Attorney General by: Jean Smith Vaughan, attorney for appellee.

      Before SOUTHWICK, P.J., BRIDGES and CHANDLER, JJ.
   BRIDGES, J.,

for the court.

¶ 1. Following indictments by the grand jury of Harrison County, Roy Golmon pled guilty to one count of the crime of driving under the influence. A second count was retired to the files. Golmon was sentenced to serve a term of five years with the execution of the sentence suspended, and Golmon was placed on four years’ probationary status. However, in February 1999, his probation was revoked when Gol-mon was arrested again for driving under the influence with a suspended license, and he was charged with felony DUI. Probation was, therefore, revoked and his prior sentence of five years was reinstated plus a fine of five thousand dollars, Golmon filed a post-conviction relief petition which was later denied on the grounds that it was time-barred. He now appeals to this Court.

STATEMENT OF ISSUES

I. WHETHER THE TRIAL JUDGE ERRED IN REFUSING POST-CONVICTION RELIEF ON THE GROUNDS THAT GOLMON’S GUILTY PLEA WAS INVALID.
II. WHETHER THE TRIAL JUDGE ERRED IN REFUSING POST-CONVICTION RELIEF ON THE GROUNDS THAT THE SENTENCE WAS ILLEGAL.
III. WHETHER THE TRIAL JUDGE ERRED IN REFUSING POST-CONVICTION RELIEF ON THE GROUNDS THAT THE INDICTMENT WAS FAULTY.
IV. WHETHER THE TRIAL JUDGE ERRED IN REFUSING RELIEF ON THE GROUNDS THAT THE PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
V.WHETHER THE TRIAL JUDGE ERRED BY PLACING GOL-MON ON PROBATION.

STANDARD OF REVIEW

¶ 2. ‘When reviewing a lower court’s decision to deny a petition for post-conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised the applicable standard is de novo.” Brown v. State, 731 So.2d 595, 598(¶ 16) (Miss.1999).

ANALYSIS

¶3. It should be noted that this Court has restricted its analysis in this case solely to the issue of whether Gol-mon’s case is time-barred. This is because the time-bar issue- determines whether any of the issues can even be considered. Gol-mon was sentenced on May 18, 1998, and consequently, the three year period to file any post-conviction relief motion challenging his plea lapsed on May 18, 2001. Section 99-39-5(2) of the Mississippi Code Annotated states:

A motion for relief under this chapter shall be made within three (3) years after the time in which the prisoner’s direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction.

Miss.Code Ann. § 99-39-5(2) (Supp.2002). There are several instances in which a case is exempted from this deadline and they are: (1) when an intervening decision has been handed down by the Supreme Court of Mississippi or of the United States and would adversely affect the conviction; (2) the prisoner has new evidence which would have been conclusive if offered at trial; (3) where a prisoner claims his sentence has expired; (4) or when a prisoner’s probation, parole, or conditional release has been revoked. Miss.Code Ann. § 99-39-5(2) (Supp.2002).

¶ 4. Golmon was sentenced on May 18, 1998; therefore, he would have had three years from May 18, 1998, in which to file a timely petition for post-conviction relief, making May 18, 2001, the last date on which Golmon could file a post-conviction petition. Golmon filed the current petition on December 26, 2001, seven months after the three year statutory period had expired. Consequently, Golmon’s petition in this case is barred by the statute of limitations, and the issues he brings here are barred as well. Therefore, we affirm the trial court’s denial of post-conviction relief.

¶ 5. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS HEREBY AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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