author: MYERS, J.,

text:
    Andrew CAMPBELL, a/k/a Dick Campbell, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-CP-00977-COA.
    Court of Appeals of Mississippi.
    March 9, 2004.
    Certiorari Denied July 22, 2004.

      Andrew Campbell, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, P.J., THOMAS and MYERS, JJ.
   MYERS, J.,

for the Court.

¶ 1. Andrew Campbell pled guilty to two counts of the sale of a controlled substance and was sentenced to a total of eighteen years with five years suspended. Campbell filed a motion for post-conviction relief which was denied by the trial court as frivolous. Campbell now appeals and requests our review of the following issues:

I. WAS THE APPELLANT’S INDICTMENT VALID?
II. WAS THE APPELLANT ENTRAPPED?
III. WAS THE APPELLANT DENIED A SPEEDY TRIAL?
IV. WAS THE APPELLANT IMPROPERLY DENIED DISCOVERY?
V. WAS THE APPELLANT’S GUILTY PLEA KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY ENTERED?
VI. WAS THE APPELLANT’S SENTENCE IMPROPER?
VII. WAS THE APPELLANT DENIED INEFFECTIVE ASSISTANCE OF COUNSEL?

STATEMENT OF FACTS

¶ 2. An indictment was filed in the Circuit Court of Montgomery County charging Campbell in Count I, with the sale of cocaine, and in Count II, with the sale of marijuana. Campbell entered a plea of guilty to the crimes charged in the indictment. As to Count I, Campbell was sentenced to serve a term of fifteen years in the custody of the Mississippi Department of Corrections with five years suspended. As to Count II, Campbell was sentenced to serve a term of three years to run concurrently with the sentence imposed in Count I.

¶ 3. Campbell filed a post-conviction motion to vacate his guilty plea. In support of this motion, Campbell claimed his indictment was defective, he was entrapped, he was denied a speedy trial, he was improperly denied discovery, his guilty plea was involuntary, his sentence was improper, and his counsel provided ineffective assistance. The trial judge, in a ten-page opinion, set out Campbell’s factual and legal claims and then made detailed findings as to why these claims were without merit. The court based its decision on the contents of the court file on Campbell, including the transcript of the plea hearing in this case. The trial judge entered an order denying Campbell’s requested relief and finding as a fact that Campbell’s motion was frivolous. As a penalty, the trial judge ordered that Campbell forfeit sixty days of his earned time. Aggrieved by this result, Campbell filed the present appeal.

LEGAL ANALYSIS

I. WAS THE APPELLANT’S INDICTMENT VALID?

¶ 4. Campbell argues his indictment is defective because Count I of the indictment did not specify the amount of cocaine that he allegedly sold. Rule 7.06 of the Uniform Rules of Circuit and County Court Practice states that an indictment “shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.”

¶ 5. However, with the exception of trafficking, the penalty for the sale of cocaine is the same regardless of the quantity that was sold. Miss.Code Annotated § 41-29-139(a)(1), (b)(1) (Rev.2001). Therefore, the amount of cocaine that Campbell sold was not an essential element to the crime. Williams v. State, 821 So.2d 883, 887 (¶ 16) (Miss.Ct.App.2002). The indictment was not defective.

II. WAS THE APPELLANT ENTRAPPED?

¶ 6. Campbell argues his convictions should be set aside because he was entrapped. The transcript of the plea hearing reveals that Campbell and his attorney discussed the possibility of going to trial and presenting an entrapment defense. The plea hearing also reveals that Campbell decided not to pursue the defense, but instead, entered a guilty plea.

¶ 7. Assuming Campbell’s pleas were voluntarily entered, Campbell waived any defense he might have had to the charge, including the defense of entrapment. Taylor v. State, 766 So.2d 830, 835 (¶ 24) (Miss.Ct.App.2000). The waiver doctrine would also preclude Campbell from arguing that he was denied an initial appearance. Id. Since we hold below that Campbell’s guilty plea was in fact voluntarily entered, we find this issue to be without merit.

III. WAS THE APPELLANT DENIED A SPEEDY TRIAL?

¶ 8. Campbell argues that he is entitled to relief from this Court because he was denied his constitutional right to a speedy trial. All offenses for which indictments are presented to the court shall be tried no later than two hundred seventy days after the accused has been arraigned. Miss. Code Annotated § 99-17-1 (Rev.2000).

¶ 9. The indictment against Campbell was filed on March 7, 2002. Five days later, Campbell waived arraignment but entered a plea of not guilty to the charges contained in the indictment. On October 7, 2002, Campbell entered a plea of guilty to the charges contained in the indictment. A total of two hundred nine days elapsed between the time Campbell waived arraignment and the date he entered his guilty plea. As a result, Campbell was not denied his statutory right to a speedy trial.

¶ 10. The analysis continues, however, because a criminal defendant also has a-constitutional right to a speedy trial. This right attaches when a person has been effectively accused of a crime. Box v. State, 610 So.2d 1148, 1150 (Miss.1992). When considering whether there has been a denial of the constitutional right to a speedy trial, a delay of eight months or longer is presumed to be prejudicial. Handley v. State, 574 So.2d 671, 676 (Miss. 1990) (quoting Smith v. State, 550 So.2d 406, 408 (Miss.1989)). However, if the delay is not presumptively prejudicial, the inquiry is halted and no other factors need be considered. Smith, 550 So.2d at 408.

¶ 11. Since only seven months elapsed between the time Campbell was indicted and the date of his conviction, this Court, like the trial court, finds no further inquiry necessary. Campbell was denied neither his statutory nor his constitutional right to a speedy trial.

TV. WAS THE APPELLANT IMPROPERLY DENIED DISCOVERY?

¶ 12. Campbell argues his convictions should be set aside because he was not provided discovery. The record reveals that a motion for discovery was filed by Campbell’s attorney on April 3, 2002. The trial court took judicial notice of the fact that the district attorney’s office in the fifth circuit court district routinely provides discovery to defense attorneys as soon as a motion is filed, and without the necessity of entering a court order. However, the record is silent as to whether discovery was received.

¶ 13. In addition, as noted above, a “valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial.” Anderson v. State, 577 So.2d 390, 391 (Miss.1991). Since we hold below that Campbell’s guilty plea was valid, we find this issue to be without merit.

V. WAS THE APPELLANT’S GUILTY PLEA KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY ENTERED?

¶ 14. Campbell argues his plea was the result of coercion and fear. Specifically, Campbell argues that he was coerced into pleading guilty out of fear that he would receive a thirty year sentence, due to emotional stress caused by his family, and because of erroneous advice from his counsel. However, Campbell’s claim is at direct odds with the record. The transcript from the plea hearing reveals that Campbell was concerned about the effects the pending criminal charges were having on his family. Despite this, the transcript clearly shows that the decision to plead guilty was solely Campbell’s.

¶ 15. There is no evidence in the record that Campbell pled guilty because he was pressured or threatened by anyone or due to the fear of receiving a thirty year sentence. In addition, Campbell has offered no specific facts, to support his claim that he pled guilty because of his counsel’s erroneous advice. As a result, we hold that Campbell’s guilty plea was knowingly, intelligently, and voluntarily entered.

VI. WAS THE APPELLANT’S SENTENCE IMPROPER?

¶ 16. Campbell argues that he should be re-sentenced because the trial court was unaware of the fact that he had no prior felony convictions at the time he was sentenced. In support of this argument, Campbell directs our attention to Mississippi Code Annotated Section 41-29-139.

¶ 17. We find that Campbell is incorrect in his assertion that the trial court was unaware of the fact that he had no prior felony convictions at the time he was sentenced. Paragraph eight of Campbell’s petition to enter a plea of guilty stated this fact. Campbell is also incorrect in his assertion that Mississippi Code Annotated Section 41-29-139 creates authority for the trial court or this Court to re-sentence him. Our review of that particular statute grants no such authority. Even assuming arguendo that it did, we would still decline because we find Campbell’s sentence to be fair and proper under the circumstances.

VII. WAS THE APPELLANT DENIED INEFFECTIVE ASSISTANCE OF COUNSEL?

¶ 18. Campbell argues that he received ineffective assistance of counsel because his attorney failed to challenge a defective indictment, because his attorney destroyed discovery material, and because his attorney allowed him to plead guilty out of fear, coercion, and the threat of a thirty year sentence. As noted above, there was no defect in the indictment filed against Campbell. In addition, this Court has determined that Campbell’s plea was valid. As a result, the only remaining issue is the alleged destruction of evidence.

¶ 19. Campbell claims that his attorney destroyed a copy of a tape. The trial court presumed that the tape depicted Campbell selling the cocaine and marijuana. Regardless, we find this final issue to be without merit because Campbell has failed to offer any affidavits in support of his claim. Robertson v. State, 669 So.2d 11, 13 (Miss.1996).

¶ 20. Under Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Campbell has the burden of proving that his counsel’s assistance was deficient and that the deficiency resulted in prejudice. Even if we assume that Campbell’s attorney actually destroyed the tape, it would be impossible for Campbell to be prejudiced by its destruction. In other words, the tape could have only hurt Campbell’s case. We find the conduct of Campbell’s counsel to be in no way deficient. As a result, Campbell’s final claim is without merit.

¶ 21. After a careful examination, we find that the claims included in Campbell’s post-conviction motion were either waived by his valid guilty plea or contradicted by the record. As a result, we affirm the trial court’s denial of Campbell’s post-conviction relief.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF MONTGOMERY COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONTGOMERY COUNTY.

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


source: Caselaw Access Project

author: THOMAS, J.,

license: Public Domain

text:
    Harold D. McKEE, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01048-COA.
    Court of Appeals of Mississippi.
    March 9, 2004.
    Rehearing Denied June 1, 2004.
    Certiorari Denied July 29, 2004.

      Harold D. McKee, appellant, pro se.

      Laurel G. Weir, Philadelphia, MS, attorney for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before KING, P.J., THOMAS and MYERS, JJ.
   THOMAS, J.,

for the court.

¶ 1. Harold D. McKee appeals his conviction by a Leake County jury of the felony of possession of cocaine. McKee assigns five errors in the court below:

I. ERROR EXISTS IN ADMISSION OF EVIDENCE AGAINST APPELLANT.

II. THE HONORABLE LOWER COURT ERRED IN REFUSING THE REQUESTED CIRCUMSTANTIAL EVIDENCE INSTRUCTIONS.

III. THERE WAS NO CHAIN OF CONNECTION IN REFERENCE TO THE ALLEGED DRUGS FROM THE TIME THEY WERE TAKEN UNTIL THE TRIAL.

IV. ERROR EXISTS IN EVIDENCE ' AND ALLEGED INFORMATION CONCERNING THE TRIAL AND AN ANTENNA.

V. TRIAL COUNSEL IN THE LOWER COURT WAS INEFFECTIVE IN FAILING TO OBJECT TO TRIAL COURT’S RULINGS AND THE MANNER OF THE CONDUCTION OF THE TRIAL.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Carthage Chief of Police Jim Moore stopped Harold D. McKee on January 18, 2001 for driving a truck with an expired registration tag. McKee exited the vehicle and met Moore outside. Moore asked for a driver’s license and after a few moments, McKee admitted he did not possess one. Moore noted the scent of alcohol on McKee’s breath and asked McKee if he had been drinking. McKee admitted to having consumed one beer.

¶ 4. Moore approached McKee’s truck and looked in the passenger window. In addition to a passenger, Billy Stewart, Moore observed an open beer container on the floorboard and a six-ring plastic drink can holder protruding from a brown paper bag on the seat approximately halfway between driver and passenger. Moore lifted the’bag and spotted a pill bottle containing several rocks of crack cocaine. Moore called for assistance and handcuffed McKee.

¶ 5. Officer Chad Arthur arrived, advised McKee of his Miranda rights and transported him to the police station. Chief Moore arrived at the station at approximately the same time and both officers were present when McKee was processed. McKee was directed to empty his pockets. One of the items McKee removed from his pockets was another pill bottle which also contained crack cocaine. McKee attempted to retrieve the bottle but was unsuccessful. Officer Arthur also found a crack pipe and an antenna, often used for cleaning crack pipes, in the backseat of his vehicle after transporting McKee to the police station.

¶ 6. McKee was charged with possession of cocaine between two and ten grams. Trial was had on May 9, 2002. After deliberation, the circuit court jury found McKee guilty of the crime charged and he was sentenced to a term of twelve years’ imprisonment. This appeal followed.

ANALYSIS

1. Admission of evidence

¶ 7. The heart of this assignment of error is the argument that the trial court erred in admitting evidence which had been seized in violation of McKee’s constitutional rights. McKee argues he was only arrested for a minor traffic offense for which the usual remedy is the issuance of a citation, thus authorities had no right to conduct a search of his person without a duly executed warrant since no exigent circumstances existed to forgive the Fourth Amendment warrant requirement. McKee also alleges he was never advised of his Miranda rights as required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

¶ 8. Whatever violation was the impetus for Chief Moore to initially stop McKee, what he was arrested for was possession of cocaine, not a traffic violation. What the usual punishment for a traffic violation may be is of absolutely no relevance in this case.

¶ 9. The evidence of the cocaine found in the truck was admissible. While a warrant is generally required before the search for or seizure of evidence may be conducted, no warrant is required to seize an object in plain view when viewed by an officer from a place he has the lawful right to be, its incriminating character is readily apparent and the officer has a lawful right of access to the evidence. Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). However, this exception only forgives the lack of a warrant. There must still be probable cause before such a search or seizure can be made. Arizona v. Hicks, 480 U.S. 321, 326-27, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987).

¶ 10. Chief Moore had legally stopped McKee for a traffic violation. He smelled alcohol on McKee’s breath and saw an open container of alcohol in the vehicle from his position outside the vehicle on the side of a public thoroughfare, a place Chief Moore was obviously legally entitled to be. ■ Chief Moore also saw other evidence of alcohol in the form of a plastic, six-ring can holder, used to secure beer, among other beverages, prior to sale.

¶ 11. Under the plain view doctrine, Moore was entitled to seize this evidence without a warrant. The presence of alcohol and olfactory suggestion of its consumption gave Moore sufficient probable cause to also search the vehicle. Northington v. State, 749 So.2d 1099, 1103(¶ 9) (Miss.Ct.App.1999). If, in the process of making that legitimate search and seizure, Moore uncovered evidence of another crime, as he did here, he is not required to ignore such evidence nor does the Fourth Amendment require its suppression. Michigan v. Long, 463 U.S. 1032, 1050, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).

¶ 12. Even had probable cause been absent, McKee would have no standing to complain. As he repeatedly points out in his briefs, McKee was not the owner of the vehicle at the time of his arrest, he was merely test-driving it in order to determine whether he wished to purchase it. Fourth Amendment rights are personal ones and a defendant may not seek to suppress evidence through a complaint that the constitutional rights of a third party have been violated, in this case the right of the actual owner of the vehicle to be free of a warrantless search. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (passengers in vehicle in which neither had a property or possessory interest lacked standing to complain of search of vehicle in which narcotics were found).

¶ 13. As for the cocaine found on McKee’s person, it is well settled that an officer has the right to conduct a search of a defendant’s person incident to a lawful arrest. United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). That McKee was directed to empty his pockets rather than have them emptied for Mm does not change the nature of the search.

¶ 14. Finally, it is also a matter of settled law that Miranda warnings serve to protect a suspect’s Fifth Amendment right to be free of compulsory self-incrimination, a right which only extends to evidence of a testimonial or communicative nature. Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Inanimate items, such as vials of crack cocaine, found on a suspect do not qualify as either testimony or commumcation and are thus unprotected by the Fifth Amendment.

2. Circumstantial evidence instruction

¶ 15. McKee next argues he was entitled to a circumstantial evidence instruction because the evidence did not establish anything but constructive possession of cocaine by him, and the State failed to prove he had exclusive dominion and control over the vehicle-in terms of inches, the cocaine was closer to the passenger than it was to McKee. Given these failures and lacMng either an eyewitness or a confession, McKee submits he was entitled to a circumstantial evidence jury instruction.

¶ 16. McKee misunderstands the concepts of constructive possession and dominion and control. Constructive possession is not a lesser degree of possession but rather a method by which possession is established. Constructive possession may be proved by showing a suspect had dominion and control over the location in which the contraband is found. Keys v. State, 478 So.2d 266, 267 (Miss.1985). It is not an either/or proposition as McKee appears to be arguing.

¶ 17. With respect to jury instructions, an accused is entitled to receive a particular species of instruction when the evidence against him is wholly circumstantial and he so requests. Id. at 267. Such an instruction generally informs the jury that before it may convict, each element of the crime must be proven beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence. Id.

¶ 18. In this case, the evidence against McKee is not wholly circumstantial. McKee was not charged with separate counts of possession, one for the cocaine found in the car and one for the cocaine found on his person, but a single charge encompassing both specimens. That portion of the cocaine found on his person constitutes direct evidence of possession. The evidence in this case is thus of the mixed variety, partly circumstantial and partly direct. In such instances, a circumstantial evidence instruction is not required. Sullivan v. State, 749 So.2d 983, 992 (¶ 20) (Miss.1999).

3. Chain of custody

¶ 19. McKee’s third assignment of error is that the State failed to establish a chain of custody between the time the cocaine was seized and the time it was presented at trial. McKee failed to object to this alleged error at trial. It is thus not properly preserved for appellate review. Fleming v. State, 604 So.2d 280, 294 (1992). However, even were that not the case, testimony at trial established the chain of custody. Chief Moore testified he sealed the cocaine in evidence bags at the respective locations of discovery then handed them to Officer Billy Martin. Martin later transported the bags to the Mississippi Crime Lab for contents analysis then retrieved the bags, resealed and initialed by the lab analyst, and placed them in evidence storage until trial. Officer Vick Hamilton testified he removed the bags, still sealed, from evidence storage and transported them to the court on the day of trial. That is sufficient.

Í Crack pipe and antenna

¶ 20. In his brief to this court, McKee alleges “the evidence concerning [the crack pipe and antenna] was that the police car had not been searched by the police prior to Appellant being placed in the vehicle and there was no proof that Appellant placed it there, but Appellant denied this being true.”

¶ 21. Once again, no objection was made at trial and the issue was not preserved for appellate review. However, in the interest of thoroughness, we will briefly review the matter. McKee’s statement quoted above does not accurately reflect the testimony at trial. McKee did deny placing the items in the police car but Officer Arthur also testified he searched the police vehicle before placing McKee in it. Arthur further testified neither item had been in the vehicle when he searched it but was present after McKee was removed from it at the Carthage police station.

¶ 22. McKee further argues that because the pipe and antenna were not introduced into evidence, the jury became confused and he should have been granted a mistrial. It is important to note that what McKee argues as error was the failure of the State to have the pipe and antenna introduced as physical evidence, not the testimony of Officer Arthur on the subject of the items. The jury did inquire of the judge why the items had not been introduced as evidence. The court informed the jury it could not comment on the State’s trial technique and a verdict should be based upon the evidence as presented. This was a proper answer. McKee was not charged with possession of paraphernalia but possession of cocaine. The State was not required to introduce evidence of this separate crime and McKee puts forth neither a theory nor authority for the notion that the items must have been introduced as evidence and failure to do so necessitated a new trial.

5. Ineffective assistance of counsel

¶ 23. In addition to counsel’s appellate brief, McKee has submitted a pro se supplemental brief on the issue of ineffective assistance of counsel. Counsel makes the broad allegation of deficiencies in trial counsel’s performance, particularly in light of the number of objections that should have been made but were not. McKee makes a number of specific claims of deficient performance which incorporate the broad error raised by counsel: failure to object to a defective indictment, failure to object to court’s refusal of the circumstantial evidence instructions, failure to secure a jury instruction on the State’s burden of proof, failure to object to introduction of prejudicial evidence of other crimes, and failure to seek suppression of evidence obtained in violation of the Fourth Amendment.

¶ 24. We review claims of ineffective assistance of counsel based upon a two-part inquiry: first, whether counsel’s performance was deficient; and second, whether that deficiency caused prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Deficient performance is evaluated by whether counsel’s advice falls outside objective parameters of professional reasonableness. Id. at 687-88, 104 S.Ct. 2052. Prejudice is measured by whether the result of the proceedings would have been different but for counsel’s deficiency. Cole v. State, 666 So.2d 767, 775 (Miss.1995).

a. Defective indictment

¶ 25. McKee claims the indictment against him was defective for want of a grand jury foreman signature. This is incorrect. The indictment is included in the record. It is a two-sided document and all necessary signatures appear on the back side of it. No further analysis of this claim is necessary.

b. Failure to object to denial of circumstantial evidence instructions

¶ 26. McKee next claims trial counsel should have objected to the trial court’s denial of the proffered circumstantial evidence instructions. Such an objection is unnecessary. The practice of taking exception to the denial of a requested instruction has long been abandoned in this State. Jenkins v. State, 757 So.2d 1005, 1009 (¶ 19) (Miss.Ct.App.1999). The issue is preserved for appellate review merely by the tender of the instruction and request that it be given. Id. Trial counsel was not required to make any separate objection and cannot be found defective for failing to do that which was unnecessary.

c. Instruction on burden of proof

¶ 27. McKee’s argument for this proposition is rather unclear and for that reason, we reproduce it here:

The law says that where the defendant is not in exclusive control of the truck when the drugs are found, the State has the burden of proving competent evidence which would connect the defendant to the cocaine.... Therefore, McKee argues that since he was not in exclusive dominion and control of the truck when the 2-10 grams of cocaine were found, Mississippi law placed a burden on the State to provide competent evidence which connects him with the cocaine.... But the record shows that the jury was not instructed on this particular burden of proof assigned to the State and ... the failure to instruct the jury that the State had this particular burden of proof in a constructive possession case ... .had the effect of easing the State’s burden of proof, thus denies due process.

¶28. McKee appears to be arguing a number of disconnected theories. He seems to argue that in a constructive possession case, the State’s burden of proof is higher than in a case of direct evidence. He also seems to argue that it was conclusively established he lacked dominion and control of the truck he was driving at the time of his arrest and therefore the State failed to establish an essential element of the crime. He also appears to assume that “proving competent evidence” is something different, additional, to the burden the State already carries in criminal cases.

¶29. The burden of proof is always upon the State to prove each element of the crime charged beyond a reasonable doubt. That is so whether the crime of possession of cocaine is established through direct evidence or evidence of constructive possession. The jury was informed of the burden of proof by Instruction S-l, which stated the jury must believe McKee did willfully, unlawfully and feloniously have in his possession and under his conscious control a Schedule II narcotic, to wit cocaine of more than two grams but less than ten grams, beyond a reasonable doubt before it may convict. McKee also submitted Instruction D-8, which was given, reminding the jury of the presumption of innocence, the burden of proving guilt beyond a reasonable doubt rests upon the shoulders of the State, and that the defendant is not required to prove his innocence.

¶ 30. In instances where part of the crime is established through constructive means, the State has the additional evidentiary burden of proving the defendant had dominion and control over the place where the contraband was found. This can probably best be defined as an element of the crime; there is no change or alteration in the State’s burden of proof. The jury was also informed of this in Instruction S-3, which instructed that possession need not mean actual physical possession; constructive possession may be shown by establishing that the substance involved was subject to the defendant’s dominion and control.

¶ 31. We cannot fathom what additional instructions McKee believes should have been offered. Taking the instructions given as a whole, the jury was correctly informed of the State’s obligation to prove the elements of the crime beyond a reasonable doubt. That is sufficient. Heidel v. State, 587 So.2d 835, 842 (Miss.1991). Trial counsel cannot be found at fault for failing to do more.

d. Evidence of other crimes

¶ 32. McKee next argues he was prejudiced by the introduction of evidence regarding another, separate crime. Specifically, he alleges the testimony of Officer Arthur describing the discovery of the crack pipe and antenna in the backseat of his police vehicle after transporting McKee constitutes evidence of the separate crime of possession of paraphernalia which was prejudicial to his case and trial counsel was therefore deficient in failing to object or seek a cautionary instruction or mistrial once the testimony was admitted.

¶ 33. McKee correctly states the law regarding the standard of review for the admission or exclusion of evidence, that of abuse of discretion, and that an abuse of discretion may lead to reversible error. However, in determining whether trial counsel was ineffective, we review counsel’s actions, not those of the trial court. Whether the trial court abused its discretion in admitting the testimony is a completely separate matter which should have been designated as a separate assignment of error but was not, as discussed above.

¶ 34. As to the trial counsel, we make no determination as to whether or not an objection to this testimony should have been made. Even were we to assume, however, that failure to object to the testimony was deficient, McKee’s claim fails for lack of prejudice to him as a result of the deficient performance. As discussed at the beginning of this section, deficient performance alone is not sufficient to overturn a conviction. McKee must also show that, but for the deficiency, he would have been acquitted. That he cannot do. Had the testimony been excluded, never presented to the jury at all, the remaining evidence as reviewed in the facts of this case, is more than sufficient for the jury to have convicted McKee.

e. Failure to seek suppression of evidence

¶ 35. Finally, McKee argues trial counsel was deficient by failing to seek suppression of the cocaine found in the truck he was driving. As discussed at length above, there was no violation of any constitutional rights with respect to the search and seizure of evidence from the truck or from McKee’s person. Counsel did not perform defectively by recognizing this and declining to make spurious objections or motions. We will not revisit this discussion here further.

¶ 36. THE JUDGMENT OF THE LEAKE COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF COCAINE AND SENTENCE OF TWELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: LEE, J.,

text:
    Jason MURPHREE, Appellant v. W.W. TRANSPORTATION, Wayne Cook and Helen Cook, Appellees.
    No. 2003-CA-00020-COA.
    Court of Appeals of Mississippi.
    April 13, 2004.
    Rehearing Denied July 20, 2004.
    B. Sean Akins, Ripley, attorney for appellant.
    Richard Joseph Babb, Ripley, attorney for appellees.
    Before SOUTHWICK, P.J., LEE and IRVING, JJ.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On May 28, 1996, Jason Murphree filed a complaint in the Marshall County Circuit Court against W.W. Transportation (W.W.) and Wayne Cook for failure to repay a loan allegedly owed by W.W. to Murphree. W.W. and Cook filed their answer and ■ counter-claim on July 12, 1996, claiming that Murphree was in fact indebted to W.W. and Cook. In September 1997, the trial court granted a motion to join Helen Cook as a defendant. After a bench trial, the judge dismissed Murphree’s complaint and found that Murphree was indebted to W.W. and the Cooks.

¶ 2. On August 14, 1998, Murphree filed an appeal to this Court arguing primarily that the trial court failed to recognize the validity of the loan. This Court reversed and remanded for the trial court to conduct further evidentiary findings regarding the purported underlying debt. See Murphree v. W.W. Transp., 797 So.2d 268 (Miss.Ct.App.2001). The trial court conducted a hearing on August 26, 2002, and, in an opinion issued on October 1, 2002, ruled in favor of W.W. and the Cooks, finding that there was no credible testimony presented to show that a valid loan had occurred between W.W. and Murphree. Aggrieved from this ruling, Murphree perfects his appeal again to this Court asserting that the trial court’s determination that there was no credible evidence to support the existence of loans was not supported by substantial evidence.

FACTS

¶ 3. In the early 1990’s, Murphree became involved with W.W., a trucking business in Marshall County. At that time the president of the company was Tim Weath-erford, who was also the sole shareholder of the company. Wayne Cook was Weath-erford’s partner, but did not own any stock in W.W. In the summer of 1992, amidst supposed financial problems with W.W., Murphree either offered or was asked to provide business assistance to Weather-ford. Murphree claims that he made a series of loans to Weatherford, for the purpose of helping the company get back on its feet. The Cooks disputed that W.W. was in financial trouble at the time, and they asserted that the company did not need a loan from Murphree.

¶ 4. On separate occasions, Murphree allegedly loaned W.W. in excess of $50,000, some of which, Murphree claims, had been paid back to him in late 1992 in the form of corporate checks. Murphree admits that, at the time he- made his alleged loans to Weatherford, he did not secure the debts with promissory notes or any other type of standard loan documents.

¶ 5. In March 1993, Weatherford returned all of his stock to W.W. and resigned as president. Thereafter, in a special meeting of the Board of Directors, Murphree was appointed as the new president. Murphree managed the day to day operations of W.W. and claims to have been in negotiations with the Internal Revenue Service regarding payments on back-taxes owed by the company. On July 27, 1993, Murphree resigned as president of W.W. and entered a notice of dissolution with the Cooks in which Helen Cook would assume all of the outstanding liabilities and obligations of W.W.

¶ 6. At some point after the alleged loans occurred, Murphree had the accountant at W.W., Debbie Overall, prepare a series of promissory notes, which were backdated to reflect the previous loans that Murphree argues he made to the company. Murphree signed each note on behalf of W.W. and Wayne Cook signed as guarantor. Once Helen Cook took over W.W. as president, Murphree informed her that she was responsible for the payments on the alleged loans.

DISCUSSION OF ISSUE

I. WAS THE TRIAL COURT’S FINDING THAT THERE WAS NO CREDIBLE EVIDENCE TO DETERMINE THE EXISTENCE OF LOANS SUPPORTED BY SUBSTANTIAL EVIDENCE?

¶ 7. In his sole issue, Murphree claims that the trial court’s finding that there was no credible evidence to determine the existence of loans was not supported by substantial evidence. Our standard of review in such matters is well stated: this Court must look to the entire record before us and determine whether the trial court’s factual determinations were supported by substantial evidence. Ezell v. Williams, 724 So.2d 396(¶ 4) (Miss. 1998). We will not disturb the findings of fact of the trial court unless those findings are clearly erroneous. Crowe v. Smith, 603 So.2d 301, 305 (Miss.1992). Furthermore, when a trial judge, rather than a jury, is the finder of fact, he has the full authority to determine the credibility of witnesses, just as is the jury’s duty in a jury trial. Yarbrough v. Camphor, 645 So.2d 867, 869 (Miss.1994).

¶ 8. In his brief, Murphree asserts that since no other purpose has been shown for the payments to W.W., the payments must have been binding loan transactions. In support of his claim, Murphree relies mostly upon the testimony of Weatherford and Overall. At the remand hearing, Weatherford testified that a promissory note for $25,000, which was found after the original trial in 1998, was executed and prepared by Betty Bennett, Weatherford’s cousin and an employee at Merchants and Farmers Bank. Weatherford further testified that he wanted the transaction documented so that Murphree would get his money back. Overall testified that when she came to work for W.W., she asked what the deposit slips were for and was told they evidenced loans from Murphree. Overall then executed the back-dated promissory notes.

¶ 9. However, on cross-examination, Weatherford was unsure about the monetary amount of the promissory note and did not remember ever signing it. Weath-erford stated that he thought the amount was $2,000 rather than $25,000. An affidavit signed by Weatherford was admitted into evidence stating that Weatherford did not sign' a promissory note. Furthermore, Bennett testified that she did not remember Weatherford ever contacting her to prepare any documents nor did she recall Weatherford telling her he borrowed money from Murphree. Overall also admitted that the only financial documentation to support Murphree’s position consisted of the old deposit slips. Overall testified that Wayne Cook told her the deposit slips were the loans from Murphree. Wayne Cook denied ever telling Overall the purpose of the deposit slips.

¶ 10. In his order following the remand ■ hearing, the trial judge stated, “The Court has paid close and particular attention to the witnesses. Has taken into account their respective interest in the outcome, and their relationship to the central parties in this matter and does hereby find that no credible, believable testimony or evidence was introduced to convince the Court that the alleged promissory notes were valid and binding loan transactions between Weatherford and Murphree, or between W.W. Transportation and Jason Murphree.” The trial judge found Weath-erford’s testimony to be inconsistent and Overall’s to be unreliable. Although we may have reached a different conclusion, we cannot say that the trial judge’s findings were clearly erroneous or not supported by substantial evidence. Therefore, we find this issue to be without merit and affirm.

¶ 11. THE JUDGMENT OF THE MARSHALL COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

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


text:
    Shelby TRUITT, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-CP-00344-COA.
    Court of Appeals of Mississippi.
    May 4, 2004.
    Rehearing Denied July 20, 2004.
    Shelby Truitt, Appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Shelby Truitt perfected this appeal from an order denying post-conviction relief entered by the Circuit Court of Claiborne County. In January 1974, Truitt was indicted for felony escape. Truitt waived his right to representation and pled guilty to the charge of felony escape. Truitt was sentenced to serve two years at the state penitentiary. In 1993, Truitt filed a motion for post-conviction relief, and the motion was denied. The supreme court affirmed the denial in 1996. See Truitt v. State, 675 So.2d 318 (Miss.1996). Aggrieved by his present state, Truitt once again petitioned the Claiborne County Circuit Court for post-conviction relief on November 14, 2002. The Claiborne County Circuit Court denied the motion finding that Truitt was time-barred by Mississippi Code Annotated Section 99-39-5(2) (Rev. 2000). From that denial of relief, Truitt has perfected this appeal.

¶ 2. On appeal, Truitt raises the following issues: (1) the statute under which he was convicted provided for a one year sentence and Truitt was sentenced to two years; (2) he is innocent of the offense of felony escape; and (3) the trial court erred in finding that his motion for post-conviction relief was time-barred. Finding that the motion for post-conviction relief is both untimely and a successive pleading for post-conviction relief, we affirm.

DISCUSSION OF ISSUES

I. IS THE PETITION FOR POST-CONVICTION RELIEF UNTIMELY?

¶ 3. Truitt pled guilty to felony escape on January 9, 1974, some ten years prior to the enactment of the Mississippi Uniform Post-Conviction Collateral Relief Act on April 17, 1984. The Act created a three year time period, beginning April 17, 1984, within which relief must be sought for convictions prior to its enactment. Odom v. State, 483 So.2d 343, 344 (Miss. 1986). Truitt first filed a motion for post-conviction relief in 1993, and the motion was denied. The supreme court affirmed the denial in 1996. See Truitt, 675 So.2d at 318. Truitt did not file this petition until November 14, 2002, fifteen years after the expiration of the statute of limitations. Under Odom, Truitt should have filed his petition for post-conviction relief no later than April 17, 1987. Id. As Truitt’s motion for post-conviction relief falls well beyond the three year statute of limitations, we affirm the circuit court’s order denying the motion for lack of timeliness pursuant to Mississippi Code Annotated Section 99-39-5(2).

¶ 4. Section 99-39-5(2) requires requests for post-conviction relief from guilty pleas to be filed within three years after entry of the judgment of conviction. The exceptions to this three year limitation are: (1) cases in which the prisoner can show that there has been an intervening decision of the Mississippi or United States Supreme Court which would adversely affect the outcome of his conviction; (2) cases in which he has new evidence, not discoverable at trial, that would have caused a different result in conviction or sentence; or (3) cases in which the prisoner claims his sentence has expired or his probation, parole or conditional release has unlawfully been revoked. Miss.Code Ann. § 99-39-5(2) (Supp.2003). Truitt has failed to put forth any facts to require consideration of his appeal outside the three year period of limitation.

II. IS THIS PETITION BARRED AS A SUCCESSIVE PETITION?

5. Mississippi Code Annotated Section 99-39-23(6) (Supp.2003) bars successive petitions for post-conviction relief. The record clearly indicates that Truitt filed such a petition in 1993, and the supreme court upheld the denial. Truitt, 675 So.2d at 318. Although exceptions to this bar exist, Truitt has failed to raise facts requiring consideration of these exceptions.

¶ 6. For these reasons, we affirm the denial of post-conviction relief.

¶ 7. THE JUDGMENT OF THE CIRCUIT COURT OF CLAIBORNE COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAIBORNE COUNTY.

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


author: SOUTHWICK, P.J.,

text:
    Efrem HENDERSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00879-COA.
    Court of Appeals of Mississippi.
    July 13, 2004.
    Edmund J. Phillips, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. A Neshoba County Circuit Court jury convicted Efrem Henderson of possession of cocaine. On appeal, he argues that the court erred in denying his motion to suppress the results of a search and in sentencing him as an habitual offender. We find no error and affirm. ¶ 2. During the early morning hours of January 17, 2002, a police officer noticed Efrem Henderson driving his vehicle erratically. The officer stated that Henderson almost hit a curb, stopped at a stop sign, then proceeded through the intersection and almost hit another curb. The officer stopped Henderson. After approaching the vehicle, the officer smelled alcohol. The officer stated that Henderson’s speech was slurred and his eyes were red and glassy. After conducting a field sobriety test and a pat down search, the officer took Henderson to jail.

¶ 3. At the jail, an Intoxilizer test revealed that Henderson had a blood alcohol content above the legal limit for driving. Henderson was then placed under arrest and a strip search was made. The officer found cocaine wrapped inside clear plastic wrap.

¶ 4. Henderson was convicted of possession of cocaine and sentenced as an habitual offender to sixteen years in the custody of the Mississippi Department of Corrections. He appeals.

DISCUSSION

1. Suppression of evidence

¶5. Henderson claims that the court erred in denying his motion to suppress the results of the strip search. He states that pulling a car toward the curb without hitting it on a traffic-free street is not careless driving and did not constitute probable cause to be stopped. He claims that because there was no probable cause for the stop, the evidence from the subsequent search was inadmissible.

¶ 6. The offense that Henderson allegedly was committing when he was stopped was this:

Any person who drives any vehicle in a careless or imprudent manner, without due regard for the width, grade, curves, corner, traffic and use of the streets and highways and all other attendant circumstances is guilty of careless driving. Careless driving shall be considered a lesser offense than reckless driving.

Miss.Code Ann. § 63-3-1213 (Rev.1996).

¶ 7. As a general rule, “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren v. U.S., 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). The officer witnessed the vehicle that Henderson was driving approach the curb twice. This indicates that Henderson was driving without due regard for the width and use of the street. The officer’s observations were enough for him to determine that careless driving had taken place.

¶ 8. Further, this Court has determined that failure to have regard for the width and use of the street by swerving off the side of the road or crossing the marker lines constitutes probable cause for a traffic stop. E.g., Saucier v. City Of Poplarville, 858 So.2d 933, 935 (Miss.Ct. App.2003). The presence or absence of traffic is not controlling. Carelessness is a matter of reasonable interpretation, based on a wide range of factors.

¶ 9. There was probable cause for the traffic stop. Therefore, the motion to suppress the evidence found as a result was properly denied.

2. Sentence enhancement

¶ 10. Henderson claims that he did not have notice of the sentence enhancement that he received. He was given the maximum term provided for the offense under the following statute:

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

Miss.Code Ann. § 99-19-81 (Rev.2000). Henderson argues that he was indicted as a multiple offender subject to sentence enhancement under a different statute. The statute that Henderson prefers states, “any person convicted of a second or subsequent offense under this article may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.” Miss.Code Ann. § 41-29-147 (Rev. 2001).

¶ 11. Both statutes were cited in the indictment. That double reference was sufficient to give Henderson notice that he could be sentenced under either and gave him a fair opportunity to present a defense. It is not for the defendant to choose between two available sentencing options, both of which have been included in the charges against him.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF NESHOBA COUNTY OF CONVICTION OF POSSESSION OF COCAINE AND SENTENCE OF SIXTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHOBA COUNTY.

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


text:
    Bobby TROTTER, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00501-COA.
    Court of Appeals of Mississippi.
    July 13, 2004.

      Aelicia L. Thomas, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. A Bolivar County Circuit Court jury convicted Bobby Trotter of committing a drive-by shooting. On appeal, he claims error in excluding the testimony of a witness and that the verdict was against the overwhelming weight of the evidence. We find no error and affirm.

¶ 2. In July 2002, Trotter, his twin brother, Billy, and three friends were riding around Cleveland, Mississippi, in his truck. Some witnesses called the vehicle a “mini-SUV.” Problems arose when Trotter and his friends were met by another group of young men riding in a car being driven by Jeff Selmon. Members of these two groups had a history of altercations. The Selmon group parked at a convenience store. Trotter and others were already there. As one of the Selmon passengers walked into the store, Trotter was exiting and they bumped into each other. This led to a verbal altercation in the parking lot. Police arrived and both groups were ordered to disperse.

¶ 3. Sometime later, the Selmon car went to a residence. The Selmon party parked in front of the house. They were getting out of the car as the owner of the house came out to greet them. At that moment, Trotter and his friends drove by in his truck. An argument ensued between someone in Trotter’s truck and a person standing in the yard. A gun was fired in the air. There was evidence that the shooter was Frank Hampton, who was in the back of the Trotter vehicle. In response to the gunfire, a beer bottle was thrown at the truck. Trotter then sped away. Witnesses for the State testified that Trotter circled the block, came back, and Hampton fired several more shots.

¶ 4. The defendant, Trotter, testified that when he drove away after the first gunfire, he parked beneath a street light to inspect his vehicle. He was allegedly unaware that Hampton had fired any shots. Under the street light, Trotter saw scratches from a broken bottle. He decided to return to the house to fight someone because of that damage. Trotter stated that he drove back to the house and as he was about to exit his truck, more shooting began. Trotter said that he believed someone from the Selmon group was shooting at him, so he jumped back into his truck and sped away.

¶ 5. All the evidence was that Hampton was the only person firing a weapon. Trotter agreed in his testimony that Hampton was the shooter. Trotter claimed that at the time, though, he had no knowledge that anyone with him had a gun nor that there would be any shooting. Trotter stated that Hampton was in the back of the truck and he did not know that Hampton was shooting. There were bullet holes in the Selmon car and in the exterior of the house. There were no injuries.

¶ 6. Trotter and Hampton were both charged with the offense of a drive-by shooting. The trials were severed. The State’s theory regarding Trotter’s guilt is that he was aware of Hampton’s plan to shoot and aided and abetted him by driving past the residence where the shooting occurred. Trotter was convicted and sentenced to fifteen years in the custody of the Mississippi Department of Corrections. He appeals.

DISCUSSION

1. Exclusion of testimony

¶ 7. Trotter argues that the trial court erred by not allowing his twin brother, Billy, to testify. After completion of voir dire and opening statements, and following the lunch break, the defense requested a hearing in the judge’s chambers. Defense counsel revealed that she planned to introduce Billy as a witness. The State objected, stating that Billy was not on the witness list for the defense, no discovery had been conducted, and they had no idea what he would say.

¶ 8. The defense claimed that Billy was not disclosed as a potential witness because of uncertainty about whether he would be present for trial. The defense counsel said that it was only over that first day’s lunch break that it became known that Billy was in town and was prepared to give a statement as to what had happened. Counsel had a brief conversation with Billy that morning, did not gain much understanding of what he would say, but decided to call him as a witness.

¶ 9. The judge concluded that this was a discovery violation. He gave the State a chance to talk to the witness. After prosecutors talked with Billy, they learned that he had been in town since 8:00 that morning. He had only been called at noon by his brother to testify. The State claimed that this was a purposeful discovery violation and objected to his testimony.

¶ 10. The judge also determined that the defense had violated the sequestration rule, which had been invoked before trial began. The defense talked with this potential witness after the rule had been invoked. The right of the trial court to require that non-party witnesses be excluded from the courtroom and not discuss the case with other witnesses has long existed in state practice and is now controlled by an evidentiary rule. M.R.E. 615. Not long before adoption of Rule 615, it was explained that the sequestration rule gave a court discretion during and before trial to exclude witnesses from the courtroom, but attorneys in the case should be permitted to consult at least with their own witnesses even after the rule was invoked. Reagan Equip. Co. v. Vaughn Gin Co., 425 So.2d 1045, 1048 (Miss.1983). Nothing in Rule 615 appears to change the prior sequestration practice that permitted counsel to talk to their own witnesses. Error occurred here in blocking counsel from talking with a witness whom she planned to call. Perhaps counsel could be instructed not to reveal what had already occurred in the proceedings. The judge’s ruling went much further.

¶ 11. The court’s decision to prohibit’calling Billy as a witness was explicitly based on the violation of the sequestration rule, not on a discovery violation. The sequestration rule does not prevent a party’s counsel from talking to its own witnesses. However, reversal does not result from an erroneous decision to admit or exclude evidence in a criminal case unless the ruling undermined a substantial right of the defendant. Whitten v. Cox, 799 So.2d 1, 13 (Miss.2000). Usually an adverse effect on a substantial right cannot be found unless meaningful details about the proposed testimony are explained through a proffer. Thompson v. State, 602 So.2d 1185, 1188 (Miss.1992). The proffer allows the nature and significance of the evidence to be evaluated.

¶ 12. When the judge refused to permit Billy Trotter to be called, he also expressed his concern that he had not been given any information concerning the subject of Billy’s testimony. The prosecutor interviewed Billy after the defense said that he would be offered as a witness. Billy allegedly was uncooperative and would not explain what he was going to say. Defense counsel apparently did not have much information about Billy’s testimony either. The court refused to permit that attorney to talk again to her own potential witness, apparently because of the trial judge’s view of the sweep of the sequestration rule. It is difficult to find error in the refusal to permit the calling of a witness when the proponent of that witness has yet to discover the nature of the testimony, even if the trial judge blocked an after-the-fact exploration of the proposed testimony. Still, we examine further to determine if a substantial right was violated.

¶ 13. After the trial and the guilty verdict, Trotter filed a motion for new trial that finally indicated what it was that Billy was expected to say if called. The new trial motion was denied. Billy allegedly would have testified that he, Billy, had been unaware that Hampton was going to fire a gun from the vehicle. We examine the reasonable effect of such testimony.

¶ 14. Bobby Trotter testified that he did not know that Hampton had a weapon, whereas Billy Trotter would have said that he was unaware that Hampton would fire a gun. All witnesses agreed that Hampton was in the very back of the truck, while the defendant was driving. The vehicle was either a truck with some sort of cover on the back or a “mini-SUV.” According to the defendant, the truck had two rows of seats. Hampton was behind those seats in the back of the truck in what Trotter called a “cab.” A back window had to be opened for Hampton to exit the truck. Thus the evidence revealed that the defendant was as far away from the shooter as anyone in the vehicle could be, yet the jury still accepted that Bobby Trotter knew what Hampton was doing.

¶ 15. The central factual issue in the case was whether the defendant knowingly aided and abetted Hampton in the offense of a drive-by shooting. That someone else allegedly was unaware that Hampton had a gun is of little significance to whether the defendant knew and whether he was intentionally participating in that crime by driving to the location where the shooting occurred. The State’s witnesses testified that there were some initial gunshots from Hampton, that Trotter sped away, then he quickly came back and Hampton fired some more shots. There was no direct evidence that Trotter had knowledge of what Hampton was doing in the back of the truck, but there were strong evidentia-ry inferences. Trotter’s testimony as to why he came back after the first altercation at the house was presented to the jury, as was his denial that he knew that Hampton had a gun. Billy Trotter’s potential testimony was cumulative.

¶ 16. Regardless of the invalidity of the trial judge’s ruling based on a doubtful view of the sequestration rule, we find no reversible error because we find no substantial right affected. The jury heard Trotter’s version of events, and heard from other witnesses as well. Had they heard Billy Trotter testify that he too was oblivious to what Hampton was doing in the back of the truck, we find no reasonable basis to believe that the outcome of the trial would have been any different.

2. Verdict

¶ 17. Trotter claims that the guilty verdict was against the overwhelming weight of the evidence. To measure the weight, we test the evidence in a manner that is favorable to the verdict since we assume that the jury made credibility choices favorable to the verdict. Conners v. State, 822 So.2d 290, 293 (Miss.Ct.App. 2001). We put on one side of the scales all evidence consistent with the defendant’s guilt, including all evidence arising from inferences that support the verdict. McClain v. State, 625 So.2d 774, 778 (Miss. 1993). Evidence favorable to the defense that must be accepted as true is placed on the opposite side of the scale.

¶ 18. When we examine the evidence that we have summarized in the light favorable to the verdict, we see an initial, confrontational visit to someone’s house, with a gun being fired from the back of Trotter’s vehicle. Trotter sped away and then quickly came back, with more shots being fired from his vehicle. The permissible inference from this evidence is that at least when Trotter returned to the residence after the initial shooting, he was an intentional aider and abettor to Hampton’s firing his weapon from the vehicle. We affirm the judgment of conviction.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY OF CONVICTION OF DRIVE-BY SHOOTING AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, FINE OF $5,000 AND $370.49 IN RESTITUTION IS AFFIRMED. THE SENTENCE IMPOSED IN THIS CAUSE SHALL RUN CONSECUTIVELY TO ANY AND ALL PREVIOUSLY IMPOSED SENTENCES. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

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


text:
    Ronnie Lee MASSINGILLE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-CP-01260-COA.
    Court of Appeals of Mississippi.
    July 13, 2004.

      Ronnie Lee Massingille, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. Ronnie Lee Massingille’s probation was revoked. He filed a motion to reconsider, alter or amend that judgment, but the motion was denied. He has sought to appeal from the judgment, but there is no right to appeal from a revocation of probation. We dismiss the appeal.

¶2. In 2001, Massingille pled guilty to the charge of being a felon in possession of a firearm and possession of marijuana with intent to distribute. He was sentenced to serve three years for each charge under the supervision of the Mississippi Department of Corrections, with the sentences to be served concurrently. He was given credit for time that he served in confinement prior to his guilty plea and sentencing. The remaining portion of the sentences was suspended. Massingille was then placed on post-release supervision for the period of suspension.

¶ 3. Less than a year after sentencing, a petition to revoke Massingille’s post-release supervision was filed. The circuit judge entered a revocation order, and sentenced Massingille to serve the remainder of his original sentence. Eleven months after the revocation and new sentence were announced, Massingille filed for a correction of his sentence. He mentions specific dates of incarceration that he served, and claims that the sentence he must now serve needs to be recomputed. In his pleadings, he attached evidence that the Department of Corrections had reviewed his complaint and found that his sentence was properly calculated.

¶4. In his petition, Massingille stated that after revocation, he filed with the Supreme Court for a writ of habeas corpus. According to Massingille’s petition, the Supreme Court informed him that he should file for post-conviction relief. His petition then states that his original and a later amended complaint for such relief were denied by the circuit judge in November 2002, and he then appealed from that denial. We find in our clerk’s records three appeals by Massingille in 2002 and 2003. Perhaps one or more of those are appeals in the post-conviction relief proceedings.

¶ 5. The basis of Massingille’s latest complaint was that the credit that he received for his prior incarceration was improperly computed. The circuit court denied the motion to alter the earlier judgment. It is from that denial that Massingille has appealed.

DISCUSSION

¶ 6. We first state what this case is not. This is not an appeal from the denial of post-conviction relief. Massingille alleges that after revocation of the supervision to which he had been sentenced in 2001, he filed for post-conviction relief from that revocation and then appealed its denial. Instead, Massingille is now appealing from the denial of a motion to alter the judgment of revocation. The motion for relief was filed well more than a year after the revocation order.

¶ 7. Orders revoking probation cannot be appealed, and instead, complaints about the revocation may be made in proceedings for post-conviction relief. Beasley v. State, 795 So.2d 539, 540 (Miss.2001). Massingille’s status was one of “post-release supervision,” a status much like probation. Miss.Code Ann. § 47-7-34 (Supp. 2003). The procedures for terminating such supervision are the same as the procedures for the revocation of probation. Miss.Code Ann. § 47-7-34(2) (Supp.2003). Because the revocation of post-release supervision follows the same procedure as for revocation of probation, it too may not be directly appealed. Since the original revocation order may not be appealed, neither may the denial of a motion to reconsider that revocation. Rogers v. State, 829 So.2d 1287, 1288 (Miss.Ct.App.2002).

¶ 8. THE APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY IS DISMISSED. COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

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


author: KING, C.J.,

text:
    John JONES, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-CP-01451-COA.
    Court of Appeals of Mississippi.
    July 20, 2004.

      John Jones, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   KING, C.J.,

for the Court.

¶ 1. John Jones entered a plea of guilty to capital murder as an habitual offender on September 1,1988. On August 7, 2001, Jones filed a motion for post-conviction relief in the Circuit Court of Tunica County. Five months later on December 26, 2001, Jones filed an amended motion. He appeals from the summary denial of his motion for post-conviction relief as time-barred.

¶ 2. Jones argues that his motion is not time-barred under the statute, that the trial court failed to establish at his sentencing hearing that his prior convictions arose out of separate incidents, and that the indictment was defective.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. Jones entered a guilty plea to capital murder as an habitual offender. Jones was charged with being a recidivist under Mississippi Code Annotated § 99-19-81, having twice previously been convicted of felonies in 1987 in Coahoma County. As a result, Jones was sentenced to life imprisonment without possibility of parole on September 1,1988.

¶ 5. Nearly thirteen years later, on August 7, 2001, Jones filed a pro se “Motion for Post Conviction Relief.” In his motion Jones contended that he was erroneously sentenced as an habitual offender under § 99-19-81 and that his indictment was fatally defective in that the information on the two previous convictions was on a separate page and after “against the peace and dignity of the state.” In his “Amended Motion for Post-Conviction Collateral Relief,” filed on December 26, 2001, Jones again argued that the portion of the indictment charging him as an habitual offender followed the conclusion of the indictment.

¶ 6. On July 23, 2002, the circuit judge entered an order summarily denying Jones’ motions for post-conviction relief, based on the three year time bar of Mississippi Code Annotated § 99-39-5(2). Jones filed his notice of appeal from that order on August 19, 2002.

DISCUSSION

¶ 7. The decision of the circuit court to deny the motion for post-conviction relief as time-barred was correct. Mississippi Code Annotated § 99-39-5(2)(Rev.2000) provides that “[a] motion for relief under this chapter shall be made ... in case of a guilty plea, within three (3) years after entry of the judgment of conviction.” There are exceptions listed in the statute but none are applicable to Jones and he does not raise these as grounds for relief. Although we find that the decision of the circuit court should be affirmed, we also look at the specific issues raised by Jones.

1. Application of the Time Bar

¶8. Jones’ first argument is that the three year statutory time bar should not be applied against him because he initially sought post-conviction relief in 1991 within the three year period after his guilty plea. He contends that based on equitable tolling his motions filed in 2001 should be considered as timely.

¶ 9. Jones never raised this issue with the circuit court in either of the two post-conviction relief motions which were filed and did not include in the appellate record any documentary support for this argument. Following our familiar rule, this Court cannot find the trial court in error on a matter which was not presented to the court for review. Smith v. State, 724 So.2d 280 (¶ 143)(Miss.1998). This issue is proeedurally barred.

2. Application of Habitual Offender Status

¶ 10. Jones was indicted and sentenced as an habitual offender under Mississippi Code Annotated § 99-19-81 (Rev. 2000), which provides

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and rising out of separate incidents at different times and who has been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony and such sentence shall not be reduced or suspended not shall such person be eligible for parole or probation.

¶ 11. In his argument, Jones apparently confused this statute with Mississippi Code Annotated § 99-19-83 (Rev.2000) which requires that one of the two previous crimes be a crime of violence. Jones is correct that neither of his two previous convictions, one for grand larceny and one for auto burglary, are crimes of violence, but he did receive five year sentences with three years suspended on each. Although both incidents apparently occurred on the same day, the indictments included in the record shows that they meet the requirement of “rising out of separate incidents at different times.” Based on the record before us, Jones was properly sentenced for his crime.

3. The McNeal Argument

¶ 12. Jones’ third argument is that his indictment was constitutionally defective in that the habitual offender portion was on a separate page and came after the words “against the peace and dignity of the state.” This argument is premised on the supreme court’s holding in McNeal v. State, 658 So.2d 1345 (Miss.1995).

¶ 13. By pleading guilty, Jones waived any defect in the indictment. Foster v. State, 716 So.2d 538, 539(¶ 5) (Miss.1998). Also, the supreme court later amended its decision in McNeal in Brandan v. State, holding that any such defect was one of form, non-jurisdictional and curable by amendment. Brandau v. State, 662 So.2d 1051, 1054 (Miss.l995)(failure to object to the form of his indictments waived the issue). Having failed to raise this issue at the time of his plea, Jones waived the issue. See Buford v. State, 756 So.2d 815, 816(¶ 4) (Miss.Ct.App.2000).

¶ 14. Finding that the circuit court properly found Jones’ request for post-conviction relief time-barred, we affirm that judgment.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TUNICA COUNTY.

BRIDGES AND SOUTHWICK, P.JJ., LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: WOODALL, Justice. HOUSTON, Justice

text:
    HYCHE LANDFILL, LLC v. WINSTON COUNTY et al.
    1021192.
    Supreme Court of Alabama.
    Sept. 19, 2003.
    Steve A. Baccus of Almon, McAlister, Baccus, Hall & Kelley, L.L.C., Tuscumbia, for appellant.
    Daryl L. Masters and C. Richard Hill, Jr., of Webb & Eley, P.C., Montgomery; and Hobson Manasco, Jr., Haleyville, for appellees.
   WOODALL, Justice.

Hyche Landfill, LLC (“Hyche”), appeals from a judgment in favor of Winston County, the Winston County Commission (“the Commission”), and the three individual members of the Commission, namely, Roger Hayes, its chairman, and Commissioners Jeff Hood and Quinton Humphries, in their representative capacities (Winston County, the Commission, and its members are hereinafter referred to collectively as “the County”), in Hyche’s declaratory-judgment action challenging the County’s denial of Hyche’s application for an expansion of its service area. We affirm.

On June 4, 1999, Hyche filed with the Commission, pursuant to Ala.Code 1975, § 22-27-48, a request for “local approval” to expand its landfill service area (“the application”). At that time, Hyche was operating a facility in Winston County known as the Hyche Construction and Demolition Landfill (“the landfill”), pursuant to local approval and a permit issued in 1997 by the Alabama Department of Environmental Management (“ADEM”). The 1997 permit allowed Hyche to process at the landfill construction and demolition waste originating in Franklin, Marion, and Winston Counties. The application sought local approval of a proposed expansion of Hyche’s service area to include “all counties that are touched by a 40-mile radius from the [landfill].” The proposed expansion encompassed the counties of Blount, Colbert, Cullman, Fayette, Franklin, Jefferson, Lauderdale, Lawrence, Limestone, Madison, Marion, Marshall, Morgan, Walker, and Winston.

The Commission conducted a duly noticed public hearing on the proposed expansion on July 27, 1999. On August 9, 1999, the Commission considered the application at a regularly scheduled meeting. Members of the public opposed to the application attended both the hearing and the meeting. At the close of the regular meeting, the Commission rejected the application. Two of the three commissioners, Hayes and Humphries, had voted against the application; Hood had abstained. The commissioners stated no reasons for denying the application.

On November 9, 1999, Hyche sued the County. The complaint alleged, among other things, that in denying the application, the County failed to comply with § 22-27-48(a). Hyche sought an injunction against “further violations” of that Code section, and an order compelling the County to “approve the requested expansion to the [l]andfiU’s service area.”

The parties agreed to submit the case for final resolution on “stipulations and [documentary] evidence in lieu of [a] trial.” On March 14, 2003, the trial court entered a final judgment affirming the denial of the application. In its judgment, the trial court stated: “To strictly conform with [§ 22-27-48(a)], the Winston County Commission shall within ten (10) days supplement its minutes of August 9, 1999, to set forth the reason(s) for the denial of the [application].” Hyche appealed.

On appeal, Hyche contends that, as a matter of law, it is entitled to a judgment reversing the Commission’s denial of its application because, it argues, the County “failed to act” on its application as that phrase is used in § 22-27-48(a), resulting in the approval of its application by default. This legal nonfeasance occurred, because, Hyche insists, the County (1) failed to consider the six factors specifically set forth in § 22-27-48(a), or (2) failed to set forth reasons for its denial of the application.

Section 22-27-48(a) provides, in pertinent part:

“In addition to any regulatory bodies, the governing body of a county or municipality has a responsibility for and the authority to assure the proper management of solid wastes generated within its jurisdiction in accord with its Solid Waste Management Plan....
“In determining whether to recommend approval of the proposed issuance of or modification of a new or existing solid waste management site, the governing body shall consider each of the following:
“(1) The consistency of the proposal with the jurisdiction’s solid waste management need as identified in its plan;
“(2) The relationship of the proposal to local planned or existing development or the absence thereof, to major transportation arteries and to existing state primary and secondary roads;
“(3) The location of a proposed facility in relationship to existing industries in the state that generate large volumes of solid waste, or the relationship to the areas projected for development of industries that will generate solid waste;
“(4) Costs and availability of public services, facilities and improvements required to support a proposed facility and protect public health, safety and the environment;
“(5) The impact of a proposed facility on public safety and provisions made to minimize the impact on public health and safety; and
“(6) The social and economic impacts of a proposed facility on the affected community, including changes in property values, and social or community perception.
“Any determination by the local governing body of the proposed issuance of a modification of a permit ... shall be made in a public meeting only after public notice of such application or proposal and an opportunity for public comment is provided.
“... Each notice published in compliance with this section shall contain at a minimum a description of the proposed action to be considered, its relevance to and consistency with the local Solid Waste Management Plan and shall identify a contact person from whom interested persons can obtain additional information and can review copies of both the local plan and the application or proposal to be considered. All pertinent documents shall be available for inspection during normal business hours at a location readily accessible to the public. Within 90 days of receiving an application or proposal, the local governing body shall either approve the application or deny the application setting forth the reasons therefor. The failure of the local governing body to act on the proposal within 90 days of receiving the application shall constitute approval by said local governing body.”

(Emphasis added.) Thus, the dispositive question is: Did the Commission, despite its vote denying the application on August 9, 1999, “failQ ... to act on the proposal within 90 days,” within the meaning of the statute, either (1) because the commissioners failed to consider the factors mandated by § 22-27-48(a), or (2) because they failed to set forth reasons for denying the application? Resolution of the issue turns on the meaning of the phrase “failure to act.”

“ ‘The starting point in every case involving construction of a statute is the language itself.’ ” Schwartz v. Volvo North America Corp., 554 So.2d 927, 934 (Ala.1989) (Hornsby, C.J., concurring in part and dissenting in part) (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975)). The language and subject of the phrase under review link it with the antecedent sentence, which states: “Within 90 days of receiving an application or proposal, the local governing body shall either approve the application or deny the application setting forth the reasons therefor.” (Emphasis added.)

The context and syntactic association of these two sentences invoke the interpretive maxim noscitur a sociis, that is, the meaning of doubtful terms is “indicated or controlled by those with which they are associated.” Strickland v. General Motors Acceptance Corp., 578 So.2d 1275, 1277 (Ala.1991). “The principle of noscitur a sociis applies to sections and sentences in a manner similar to the application of the doctrine of in pari materia to statutes covering the same subject matter.” 2A Norman J. Singer, Statutes and Statutory Construction 47:16, at 271 (6th ed.2000).

By this principle, the meaning of the phrase, “failure ... to act ... within 90 days,” is informed by the associated phrase in the preceding sentence, “approve the application or deny the application ... [wjithin 90 days.” (Emphasis added.) In other words, “failure ... to act” within 90 days is the functional equivalent of “approve ... or deny” within 90 days. The failure to explain an action does not convert the action to nonaction. Thus, “failure to act” on an application is the failure to approve or deny the application, not, as Hyche contends, the failure to explain the denial.

The Court of Civil Appeals has construed this phrase similarly. See Calhoun County Comm’n v. Hooks, 728 So.2d 625 (Ala.Civ.App.1997), rev’d on other grounds, 728 So.2d 631 (Ala.1998). The dispute in Hooks began when Industrial Waste, Inc. (“Industrial”), sought from the Calhoun County Commission approval for an “application to construct a landfill.” Id. at 627. At a meeting on August 9, 1993, the Calhoun County Commission “received] comment on the proposal,” id. at 628, but voted to “hold [Industrial’s] request in abeyance until such a time as a study [could] be completed to determine the effects on future permits.” Id. at 627. The Calhoun County Commission took no further action on Industrial’s application.

After the 90-day statutory period expired, ADEM began “to process [Industrial’s] permit application.” 728 So.2d at 628. Christine Hooks “learned from reading a local news story that ADEM was planning to issue the permit” and sought a temporary restraining order against ADEM. Id. The trial court enjoined the permit, concluding that the Calhoun County Commission had “acted” on the proposal by “receiving comment on the proposal at the August 9, 1993, Commission meeting and by holding the proposal in abeyance.” Id.

The Court of Civil Appeals disagreed with the trial court, stating:

“The circuit court erred in holding that the [Calhoun County Commission] had ‘acted on the proposal’ merely by receiving comment and by holding the proposal in abeyance. In § 22-27-48(a), the sentence containing the phrase ‘act on the proposal’ immediately follows the sentence containing the directive that the local governing body shall approve or deny the application within 90 days:
“ Within 90 days of receiving an application or proposal, the local governing body shall either approve the application or deny the application setting forth the reasons therefor. The failure of the local governing body to act on the proposal within 90 days of receiving the application shall constitute approval by said local governing body.’
“The meaning of words in a statute is to be taken from their context. Brock v. City of Anniston, 244 Ala. 544, 14 So .2d 519 (1943). Reading the last sentence of § 22-27-48(a) in context with the preceding sentence, we think it is logical and clear that the failure to ‘act on the proposal’ means the failure either to approve or to deny the request. We hold that the Calhoun County Commission ‘failed to act’ on [Industrial’s] request because it failed either to approve or to deny the request in 90 days.”

728 So.2d at 629-30 (emphasis added).

We hold, therefore, that the Commission, which denied the application on August 9, 1999, did not “fail to act,” within the meaning of § 22-27-48(a). Because Hyche is not entitled to the relief it seeks, the judgment of the trial court is affirmed.

AFFIRMED.

LYONS, JOHNSTONE, and STUART, JJ., concur.

HOUSTON, J., concurs specially.

HOUSTON, Justice

(concurring specially).

In addition to the reasoning of the majority opinion, with which I fully concur, there is another reason that I cannot hold that the trial court’s judgment is plainly or palpably erroneous. Hyche Landfill did not present a claim to the Winston County Commission before it filed this action against the County. Alabama Code 1975, § 6-5-20, as interpreted by Williams v. McMillan, 352 So.2d 1347 (Ala.1977), requires that such a notice be filed for all claims against counties, including tort, contract, and equitable claims.

      . The County contends that Commissioners Hayes mid Humphries considered those statutory factors. Hayes submitted an affidavit stating: "Before making my decision and acting upon the Motion rejecting or disapproving the proposed expansion of the Hyche Landfill, I considered the six factors listed in § 22-27-48(a), Code of Alabama 1975.” (Emphasis added.) Humphries testified identically by affidavit.


author: JOHNSTONE, Justice.

text:
    Chrissy Tagert BRADLEY and Michael Bradley v. Rebecca MILLER, M.D.
    1012133.
    Supreme Court of Alabama.
    Sept. 26, 2003.

      Robert S. Ramsey and Donna Ward Black of Ramsey Law Firm, P.C., Mobile, for appellants.
    Michael E. Upchurch and Mary Margaret Bailey of Frazer, Greene, Upchurch & Baker, L.L.C., Mobile, for appellee.
   JOHNSTONE, Justice.

The plaintiffs in this medical malpractice lawsuit, Chrissy Tagert Bradley (“Chris-sy”) and Michael Bradley (“Michael”), appeal a summary judgment for the defendant Rebecca Miller, M.D. (“Dr. Miller”). The dispositive issue is whether the plaintiffs, in responding to Dr. Miller’s summary-judgment motion, met their burden of producing substantial evidence, in the form of medical expert testimony, of proximate cause. Because the opinion of the plaintiffs’ medical expert regarding proximate cause lacked an evidentiary foundation, it failed to meet the plaintiffs’ burden of production. Therefore, we affirm the summary judgment for Dr. Miller.

While pregnant, Chrissy suffered preec-lampsia, a pregnancy disorder, which killed the fetus on May 23, 1999. To recover for the death of the fetus, the plaintiffs sued Dr. Miller, Chrissy’s obstetrician. The plaintiffs contended that Dr. Miller, a third-year-resident physician in obstetrics and gynecology (“OB/GYN”) at the University of South Alabama (“USA”), breached the standard of care by: (1) failing to classify Chrissy’s pregnancy as a high-risk pregnancy; (2) failing to ensure that the administrative staff of the USA Center Street OB/GYN Clinic (“the Clinic”), where Dr. Miller treated Chrissy, did not cancel Chrissy’s May 6, 1999, appointment with Dr. Miller; (3) failing to “seek out” the results of an ultrasound performed on April 28, 1999, showing that the fetus was experiencing growth retardation; and (4) failing to diagnose that the onset of Chris-sy’s preeclampsia was impending.

In moving for summary judgment, Dr. Miller contended that the plaintiffs could not produce the expert medical testimony regarding proximate cause required of plaintiffs to withstand summary judgment in a medical malpractice case because the evidentiary foundation for such expert medical testimony did not exist. Dr. Miller contended that the evidentiary foundation did not exist because: (1) the evidence established only that Chrissy did not suffer from preeclampsia when Dr. Miller saw her for the last time on April 15, 1999 and that Chrissy was suffering from preec-lampsia when she was next seen by a physician on May 23, the day the child died, and (2) no evidence established when the onset of Chrissy’s preeclampsia began or whether the onset was gradual or sudden. Dr. Miller .contended that this state of the evidence foreclosed any expert medical opinion except mere speculation that the fetus probably would have been saved in the absence of the alleged breaches of the standard of care by Dr. Miller.

Facts

The onset of preeclampsia can be either gradual or sudden. The symptoms of preeclampsia include high blood pressure (blood pressure exceeding 140/90), excessive protein in the urine (proteineuria), and swelling or edema. Symptoms of severe preeclampsia can include headaches and blurred vision.

Dr. Miller saw Chrissy, then 20 years old, at the Clinic for the first time on December 17, 1998. Chrissy’s mother had suffered two placental abruptions and several strokes. Chrissy’s father had suffered from heart disease and high blood pressure. Michael, the father of the fetus, had been born premature with a heart defect. Chrissy told Dr. Miller that she smoked cigarettes, although she had reduced her smoking to one-half pack of cigarettes per day after she learned that she was pregnant. Dr. Miller warned Chrissy that smoking posed a danger to both Chrissy and her child and advised Chrissy to stop smoking altogether. Despite the medical history of Chrissy’s parents, Michael’s premature birth and heart defect, and Chrissy’s smoking habit, Dr. Miller initially assessed Chrissy’s risk of complications as low because Chrissy herself had no past or present health problems despite her smoking.

Thereafter, Dr. Miller saw Chrissy for follow-up visits on January 20, February 19, March 23, and April 15, 1999. Chrissy did not exhibit or report any symptoms of preeclampsia during any of her visits to Dr. Miller. Although Chrissy’s blood pressure readings gradually increased over the course of her visits to Dr. Miller from 106/70 to 134/70, none of her readings exceeded normal blood pressure. The urinalysis performed on each visit showed that Chrissy’s urine was free of protein. Chrissy exhibited no edema and reported no headaches or blurred vision.

Because a routine triple-screen blood test in February had shown that Chrissy had higher-than-normal levels of alpha fetal protein (“AFP”), an inconclusive indicator of possible birth defects, Dr. Miller referred Chrissy to the USA Genetics Department to rule out the possibility of birth defects. The USA Genetics Department sent Chrissy to Dr. Lynn Groome, an attending physician in the USA OB/GYN Department, for an ultrasound and amniocentesis. Dr. Groome performed the ultrasound and withdrew the amniotic fluid for analysis on April 28. In a letter of that date to Dr. Miller, Dr. Groome reported that the ultrasound did not show any identifiable structural abnormalities and that the results of the analysis of the amniotic fluid would be available in two weeks. Dr. Groome reported also that, on the basis of the estimated length of the pregnancy, he estimated the child’s weight to be below the third percentile.

While the plaintiffs’ medical expert opined that fetal weight below the third percentile was a sign of retardation of a fetus’s development, he did not opine that either a relatively low fetal weight or retardation of a fetus’s development were signs of preeclampsia. The pathologist who performed the autopsy on Chrissyls fetus after it died on May 23 ultimately determined that the fetus’s morphology and external measurements when it died on May 23 were normal for a fetus of the estimated gestational age of Chrissy’s fetus on that date. The pathologist did not attribute the death of the fetus to low fetal weight or developmental retardation.

The Clinic staff placed Dr. Groome’s April 28 letter in Chrissy’s chart without first bringing it to Dr. Miller’s attention. Dr. Miller did not see Dr. Groome’s April 28 letter until after the death of the fetus on May 23. While Dr. Miller also did not see the results of the May 3 analysis of the amniotic fluid before the death of the fetus, that analysis determined that the AFP of the amniotic fluid was normal.

At the end of the April 15 visit, Dr. Miller had instructed Chrissy to return for her next visit on May 6, and the Clinic administrative staff scheduled Chrissy for an appointment on May 6. However, Chris-sy testified that, about a week before May 6, she received a letter cancelling the May 6 appointment and rescheduling it for May 27. Dr. Miller testified that she did not personally cancel the May 6 appointment, that she did not know that anyone else had cancelled the May 6 appointment, and that she saw patients at the Clinic on May 6. However, the plaintiffs presented substantial evidence from which a fact-finder could infer that Dr. Miller could have discovered the cancellation and reinstated the May 6 appointment. Dr. Miller agreed with the plaintiffs’ medical expert that the standard of care obliged Chrissy’s obstetrician to see Chrissy on May 6.

About May 22, Chrissy began to experience cramping in her stomach and abdomen. She experienced also a brown vaginal discharge. Chrissy felt the fetus move for the last time about 10:00 a.m. on May 23. Later, she experienced a headache and blurred vision. About 10:00 p.m. on May 23, Chrissy went to the USA Children’s and Women’s Hospital where her initial blood pressure reading was 176/93 and her second reading was 185/101. The hospital physician diagnosed preeclampsia on the basis of Chrissy’s blood pressure readings. Chrissy did not have protein in her urine. An ultrasound revealed that the fetus was dead. The hospital physician induced labor and delivered the dead fetus. The pathologist who performed the autopsy on the fetus attributed the death of the fetus to a lack of uteroplacental blood flow caused by preeclampsia.

Because Chrissy did not see Dr. Miller on May 6 and did not seek medical treatment until the night of May 23, there was no evidence to establish when the onset of Chrissy’s preeclampsia began, whether the onset was gradual or sudden, when Chris-sy first manifested blood pressure in excess- of 140/90, when the adverse effect of the preeclampsia on the child became irremediable, or how much time elapsed between the point in time when a discernible indication of the onset of the preeclampsia first appeared and the point in time 'when the adverse effect of the preeclampsia on the child became irremediable.

Although the expert employed by the plaintiffs testified that “Dr. Miller should have been aware that rising blood pressure in the absence of proteineuria can be a warning sign of impending preeclampsia, since protein in the urine is not a mandatory component of the diagnosis,” he did not testify that Dr. Miller should have diagnosed Chrissy as suffering from preec-lampsia on the basis of the rising blood pressure readings she had exhibited between January 20 and April 15. Rather, he opined that Dr. Miller was negligent in failing to classify Chrissy’s pregnancy as high risk and failing to see Chrissy on May 6:

“Almost any clinician would agree that smoking constitutes high-risk behavior, especially during pregnancy. When faced with a personal history of smoking, a family history of multiple strokes and placental abruption in the mother and high blood pressure and heart disease in the father, and a history of the father of the baby having been born prematurely with a heart defect, it is at least surprising that Dr. Miller classified the patient as ‘low risk’ and without health problems. But when these factors are compounded by elevated alpha-fetoprotein and steadily rising blood pressures, it is negligence not to have labeled Ms. Tagert Bradley as high-risk, meritorious of enhanced maternal and fetal surveillance.”

(C. 244.)

“At the least she should have been seen on 5/6, the date of regular next visit. At this visit her blood pressure could have been rechecked, the fetal retardation could have been addressed, and fetal surveillance begun or hospital admission considered. It was below the standard of acceptable medical care to wait until 5/27, six weeks after her prior visit, to see this high-risk patient again.”

(C. 240.) The expert opined also that “[i]t was below the standard of care to not act timely upon Dr. Groome’s warning of fetal growth retardation.” (C. 244.) Finally, the expert opined that the risk of fetal growth retardation warranted closer surveillance of the fetus and that the closer surveillance “would have indicated increasing fetal jeopardy and would have resulted in early delivery of a live infant.” ' (C. 241.) The expert did not testify that closer surveillance would have indicated increasing jeopardy from preeclampsia specifically.

Law and Analysis

“We review a summary judgment de novo.” Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002).

“To prove liability in a medical malpractice case, the plaintiff must prove (1) the appropriate standard of care, (2) the doctor’s deviation from that standard, and (3) a proximate causal connection between the doctor’s act or .omission constituting the breach and the injury sustained by the plaintiff.”

Looney v. Davis, 721 So.2d 152, 157 (Ala. 1998).

“To prove causation in a medical malpractice case, the plaintiff must prove, through expert medical testimony, that the alleged negligence probably caused, rather than only possibly caused, the plaintiffs injury.”

University of Alabama Health Servs. v. Bush, 638 So.2d 794, 802 (Ala.1994). “[T]he opinions of an expert may not rest on ‘mere speculation and conjecture.’ Townsend v. General Motors Corp., 642 So.2d 411, 423 (Ala.1994).” Dixon v. Board of Water & Sewer Comm’rs of Mobile, 865 So.2d 1161, 1166 (Ala.2003). “[A]s a theory of causation, a conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference. See, e.g., Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So.2d 505 (1946).” Alabama Power Co. v. Robinson, 447 So.2d 148, 153-54 (Ala.1983). An expert witness’s opinion that is conclusory, speculative, and without a proper evidentiary foundation cannot create a genuine issue of material fact. Becton v. Rhone-Poulenc, Inc., 706 So.2d 1134, 1141-42 (Ala.1997).

In essence, the plaintiffs’ expert opined that, if Dr. Miller had monitored Chrissy more closely for pregnancy complications other than preeclampsia, Dr. Miller would have incidentally detected the onset of Chrissy’s preeclampsia in time to effect an early delivery of the fetus before the preeclampsia killed the fetus. However, the necessary evidentiary foundation for such an opinion did not exist. The undisputed evidence affirmatively established that Chrissy did not suffer from preec-lampsia as of April 15, the last time Dr. Miller saw Chrissy. Moreover, there was no evidence to establish that Chrissy suffered from preeclampsia before the hospital checked her blood pressure on the night of May 23 and found it above 140/90. The plaintiffs did not even present any evidence that Chrissy’s cramps and vaginal discharge established that she suffered from preeclampsia on May 22. Given this state of the evidence, the plaintiffs’ expert could only speculate about the timing and manner of the onset of Chrissy’s preec-lampsia and, in turn, the rapidity of the adverse effects of the preeclampsia on the fetus. This speculation, in turn, was the only available foundation for the concluso-ry opinion of the plaintiffs’ expert that the fetus could have been saved if Dr. Miller had monitored Chrissy more closely, for instance, by seeing Chrissy on May 6, the date of the cancelled appointment. Because the foundation for the expert’s con-clusory opinion consisted entirely of speculation, the eonclusory opinion itself could be only speculation. Because the conclu-sory opinion of the plaintiffs’ expert that the child could have been saved with closer monitoring was only speculation, it did not constitute substantial evidence of proximate causation. See University of Alabama Health Servs., supra; Townsend, supra; Dixon, supra; Alabama Power Co., supra; and Beaton, supra. Accordingly, we affirm the summary judgment for Dr. Miller.

AFFIRMED.

HOUSTON, LYONS, WOODALL, and STUART, JJ., concur.