author: COBB, Presiding Justice,

text:
    In the Matter of the ESTATE OF Ezell “Boggie” a/k/a “Boogie” THOMAS, Deceased: Sharon Haley, Jannie Collins, Derick Thomas, Eric Thomas, Timothy Thomas, Lynn Vallian, Dezie Haley, Gayle Haley, Demetria Murry, Jimmy Dale Dixon, Ray Joseph Fountain, Delanious Grinnell and Marion Oliver v. Glenda Joyce THOMAS, Administratrix.
    No. 2002-CT-01230-SCT.
    Supreme Court of Mississippi.
    Oct. 14, 2004.

      Kevin Dwight Muhammad, attorney for appellants.
    Christopher E. Fitzgerald, Robert A. Pritchard, Jackson, attorneys for appellee.
   ON WRIT OF CERTIORARI

COBB, Presiding Justice,

for the Court.

¶ 1. Ezell “Boogie” Thomas (Thomas) died intestate in 1997. His estate, which consisted solely of claims for unliquidated damages against R.J. Reynolds Tobacco Company (RJR) and others, was administered in the Jefferson County Chancery Court. In the course of that administration, an adjudication of heirship was required, and the chancellor’s final judgment on petition to determine hems is the subject of the appeal now before this Court. The Court of Appeals reversed and rendered, holding that Thomas’s heirs at law are his brother, sisters, mother and descendants of his deceased brother and sister, and not his illegitimate children as found by the trial court. In re Estate of Thomas, 881 So.2d 257 (Miss.Ct.App.2003). This Court granted certiorari to determine if the Court of Appeals erred in its determination.

FACTS

¶2. Ezell “Boogie” Thomas died intestate on August 27, 1997. He was never married. His estate consisted solely of claims for unliquidated damages against R.J. Reynolds Tobacco Co. and others for injuries caused by cigarette smoking. Glenda Joyce Thomas, a sister of the decedent, administratrix of the estate, and petitioner before this Court, instituted estate proceedings on November 10, 1997. The notice to creditors was first published on November 13, 1997. When Ms. Thomas (the administratrix) filed the petition to administer the estate, she listed only one of Thomas’s children, Natasha Gail Motley (Natasha), as a surviving heir, as well as Thomas’s mother, one brother, four sisters, and a half sister. The petition stated only the cities in which the purported heirs lived and showed Natasha as living in Houston, Texas. No process was served on the purported heirs.

¶ 3. The administration was dormant until August 6, 2001, at which time a petition to distribute $2,200 from the estate was filed by the administratrix, joined by two sisters of the decedent, Elisha Clark and Louise Griffin. There was a signature line for Natasha to join also, but it was not signed. The petition stated that these four were the only remaining heirs at law. The subsequent order dated August 2, 2001, authorizing disbursement of the funds, noted that Natasha “cannot be located” and her share of the funds should be paid into the registry of the chancery court to be held until she could be found. Despite having listed Natasha on the initial petition, and later acknowledging that Thomas had a son, Donnie, the administra-trix failed to give notice of the administration of their father’s estate to either Natasha or Donnie, as Thomas’s illegitimate children and thus potential heirs.

¶ 4. Because heirship was important in the suit against RJR pending at the time of Thomas’s death, RJR moved to have Thomas’s sister removed as administratrix and for determination of Thomas’s lawful heirs. The chancellor reserved ruling on that motion, but on December 28, 2001, he ordered a determination of heirs, as requested by RJR, and directed the adminis-tratrix to file statutory heirship proceedings within 45 days. He further ordered her to secure valid process on all necessary parties, including any and all illegitimate children of Ezell Thomas. The petition for such determination, filed January 15, 2002, named both Natasha and Donnie as potential heirs, but still noted their residency as only Houston, Texas. However, summonses were issued for Natasha by full address in Houston, and to Donnie, by inclusion in the notice to defendants by publication.

¶ 5. Natasha subsequently executed an affidavit declaring that she is the daughter of Ezell Thomas and Willie Marie Motley, asserting her claim to her father’s estate, and stating that she believes that the ad-ministratrix and/or her sisters knew of her whereabouts and how to contact her. She requested to be present at the heirship hearing but stated that she did not have counsel and was financially unable to make the trip from Houston on such short notice. RJR filed this affidavit on March 11, 2002.

¶ 6. The hearing was re-scheduled, and on April 30, 2002, determination of the heirs of Ezell Thomas was begun. The trial court heard testimony from the ad-ministratrix Glenda Joyce Thomas; Natasha’s mother, Willie Marie Motley; and Natasha. Also present that day were a number of nieces and nephews and several siblings of Ezell Thomas, none represented by counsel. During preliminary inquiry by the chancellor as to who was present and what relation they were to the deceased, he asked if anyone in that group was there to contest the fact that Natasha is an heir. No one responded. He then rephrased his question to say that he interpreted the silence “to mean that nobody is contesting the fact that [Natasha] may be the child of the decedent. Is that right?” Again, no response. The assembled group was also asked if anyone knew the whereabouts of Donnie Thomas. None did. The testimony of the three witnesses clearly supported the fact that Natasha was the daughter of Ezell Thomas. The chancellor took the matter of Natasha’s heirship under advisement, scheduled a continuation of the hearing for a later date, and noted that diligent search and inquiry should be made for an address for Donnie, as well summons by publication being issued.

¶ 7. Donnie was finally located after diligent and exhaustive search via the internet and was served with process on May 28, 2002. He was present when court reconvened on June 11 and testified on behalf of his claim to be adjudicated as the son of Ezell Thomas. Others testifying on his behalf were Donnie’s mother, Betty Joyce Howard, and her sister, Jackie. A number of the blood relatives were also present and represented by counsel, and testimony was given by three nieces and two nephews of the decedent.

¶ 8. The chancery court found, upon clear and convincing evidence, that Natasha and Donnie were the sole heirs at law of Ezell Thomas. The decedent’s other relatives appealed, asserting that the statute of limitations had lapsed for the decedent’s illegitimate children and that the chancellor erred in finding that Natasha and Donnie were the sole heirs. The Court of Appeals reversed and rendered, holding that the one-year statute of limitations prohibiting suits to determine heirs cannot be tolled. Upon our review on certiorari, we disagree and reverse the judgment of the Court of Appeals and reinstate and affirm the chancellor’s judgment.

STANDARD OF REVIEW

¶ 9. “An appellate court will not disturb the factual findings of a chancellor unless such findings are manifestly wrong or clearly erroneous.” Estate of Dykes v. Estate of Williams, 864 So.2d 926, 930 (Miss.2003). “If there is substantial evidence to support the chancellor’s findings of fact, those findings must be affirmed.” Id. On questions of law, this Court reviews the record de novo. Miss. Dep’t of Transp. v. Johnson, 873 So.2d 108, 111 (Miss.2004).

ANALYSIS

¶ 10. We are asked to determine whether an affirmative duty exists for the ad-ministratrix to provide notice to the potential heirs of an estate, and if so, whether failure to give the potential heirs such notice tolls the 90-day statutory time period.

1. Notice

¶ 11. The statute in question is Mississippi’s illegitimate children statute, which provides a limited remedy to illegiti-mates to enforce substantive rights and claims of intestate succession.

An illegitimate shall inherit from and through the illegitimate’s natural father ... according to the statutes of descent and distribution if ... [tjhere has been an adjudication of paternity after the death of the intestate, based on clear and convincing evidence.... However, no such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less....

Miss.Code Ann. § 91 — 1—15(3)(c) (Rev. 2004). The pertinent part of this statute gives illegitimate children the right to inherit from a father who died intestate, so long as paternity has been proven. The sole limitation placed on the illegitimate children seeking inheritance is that their paternity claims must be filed either within one year of the death of the intestate or within 90 days of the first publication of notice. This Court must now determine what, if any, facts and circumstances warrant the tolling of these time limitations.

¶ 12. Under Mississippi case law, the administratrix of an estate is under a duty to use reasonable diligence to ascertain potential heirs. Smith ex rel. Young v. Estate of King, 579 So.2d 1250, 1252 (Miss.1991). See also In re Estate of Johnson, 705 So.2d 819, 822 (Miss.1996). Another duty of the administratrix is to provide notice to known or reasonably ascertainable illegitimate children who are potential heirs and whose claims would be barred if the 90-day statutory time period had run. King, 579 So.2d at 1253. Under Mississippi law, an administratrix acts as a fiduciary for all persons interested in the estate. Shepherd v. Townsend, 249 Miss. 383, 162 So.2d 878, 881 (1964). The ad-ministratrix has this duty of notice by statute. Miss.Code Ann. § 91-1-29 (Rev. 2004). In King, as here, the administra-trix failed to notify the court of a reasonably ascertainable heir and failed to notify the heirs that the paternity claims would be barred if not timely filed.

¶ 13. This Court need not specifically define “reasonably ascertainable,” because the administratrix did not need to learn whether the decedent had children; she already knew he had children. The administratrix initially listed Natasha Motley as the daughter of the decedent, thus Natasha was clearly, ascertainable. Donnie Howard was reasonably ascertainable, as the administratrix could have learned of his existence from Natasha. Further, the administratrix asserted her belief, in the chancery hearing, that Donnie was the son of the decedent and lived in Texas. There was evidence in the record that Thomas had recognized these children as his own, and they knew him to be their father, a fact this Court takes into consideration in such cases. In re Estate of Patterson, 798 So.2d 347 (Miss.2001). The administratrix had an affirmative duty under Mississippi law to notify the decedent’s children of the administration of their . father’s estate. Despite this, the administratrix failed to notify either Natasha or Donnie until long after both the 90-day and the one-year time periods prescribed in Miss.Code Ann. § 91-1-15 had run.

¶ 14. This Court has also held that an administratrix may not take positions detrimental to beneficiaries and beneficial to her. In re Estate of Johnson, 705 So.2d at 823. Here, there is no evidence of malicious intent on the part of the administra-trix, but clearly it would be beneficial to her and detrimental to Natasha and Donnie if they failed to timely establish their claim to their father’s estate.

2. Tolling

¶ 15. This Court has previously ruled that the one-year time limit provision of § 91-1-15 is self-executing, but that the 90-day provision is not. King, 579 So.2d at 1254. This Court has also held that the requirement to timely file within 90 days of first publication is not always so strictly required. Leflore ex rel. Primer v. Coleman, 521 So.2d 863, 869 (Miss.1988). Failure on the part of the administratrix to notify a child of whom the administratrix had actual knowledge can prevent the 90-day statutory bar from being raised against that child. Id. We must consider which time period under the illegitimate children statute applies to the case at bar.

¶ 16. The decedent died intestate on August 8, 1997. The one-year limitations period under the illegitimate children statute ended on August 8, 1998. First publication to creditors occurred on November 13, 1997. The 90-day limitations period under the illegitimate child statute ended on or about February 12, 1998. Notice of the administration of Thomas’s estate was not provided to Natasha and Donnie until 2002.

¶ 17. The administratrix contends that the failure to notify the decedent’s children within the 90-day period automatically tolls that time period and that, therefore, the one-year period is never triggered. The siblings, nieces and nephews of the decedent argue that the language of the statute demands that the lesser period be used and that the one-year period would be less here, if the 90-day statute were tolled, and thus the claims of Natasha and Donnie are time barred.

¶ 18. The Court of Appeals correctly pointed out that in both Leflore and King the illegitimates seeking paternity actually did file within the one-year time period, but did not do so within the 90-day time period. This distinguishing fact, however, is immaterial. The Court of Appeals’ analysis revolved around the one-year time period, which this Court has already ruled as self-executing. The Court of Appeals correctly stated that the one-year period cannot be tolled, but it incorrectly concluded that because 90 days had elapsed since the first publication that only the one-year period applied. If the 90-day period had elapsed, this should not result in automatic application of the one-year period. The statutory language is clear: “[N]o such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less .... ” Miss.Code Ann. § 91-1-15 (emphasis added).

¶ 19. The statute provides two time periods, only one of which is to be used. Nowhere in the statutory language, nor in Mississippi case law, have we found a provision that stops the tolling of the 90-day period and makes the one-year period apply-

¶ 20. The legislative intent behind this law was to provide a remedy for illegiti-mates to inherit from their father, as seen in the accompanying historical and statutory notes to § 91-1-15, the purpose of which was “to provide for intestate succession among an illegitimate and the natural father and his kindred with certain limitations, and to afford unto all illegitimates without classification a remedy whereby they could enforce their substantive rights and claims of intestate succession as provided for....”

¶ 21. Due process also demands notice be given in such a case. This Court has recognized this principle in King where it stated that Mississippi due process law requires notice or diligent efforts to secure actual notice be given. 579 So.2d at 1253-54 (relying on Caldwell v. Caldwell, 533 So.2d 413 (Miss.1988)). In both King and Caldwell, this Court looked to the United States Supreme Court for authority on the matter in its holding that the Due Process Clause of the Fourteenth Amendment of the United States Constitution requires notice. Tulsa Professional Collection Servs., Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988).

¶22. Mississippi case law also favors the right of illegitimates to inherit. This Court has stated the recognition “that to deny an illegitimate the right to institute heirship proceedings when the child, of whose existence the administratrix was aware, had no knowledge that the adminis-tratrix published notice to creditors is a harsh result which we do not look upon favorably.” King, 579 So.2d at 1253. This is exactly what would happen under the decision of the Court of Appeals. That decision would leave Natasha and Donnie completely without remedy to inherit from their father who recognized and loved them and would benefit the administratrix as well as Thomas’s other kin who would inherit. Natasha and Donnie, though easily known and ascertainable, were not notified of the administration of their father’s estate until long after both time periods had run.

CONCLUSION

¶23. Until required to do so, the ad-ministratrix here simply failed to give any notice of the adjudication of the decedent’s estate to the known and reasonably ascertainable illegitimate children, a duty she was required to fulfill under the controlling statute and case law. Case law makes it clear that failure to provide such notice results in a tolling of the 90-day statute. The tolled time period did not become “untolled” to result in use of the self-executing one-year time period. Doing so would punish the decedent’s children for something that was no fault of their own, preventing them from inheriting from a man who recognized and loved them, and in this case, benefitting the administratrix, who stands to inherit if the children are excluded.

¶ 24. We reverse the judgment of the Court of Appeals and reinstate the well-reasoned judgment of the Jefferson County Chancery Court.

¶ 25. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE JUDGMENT OF THE CHANCERY COURT OF JEFFERSON COUNTY IS AFFIRMED.

SMITH, C.J., CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. WALLER, P.J., DIAZ AND GRAVES, JJ., NOT PARTICIPATING.

      . The suit seeking damages for alleged injuries caused by cigarette smoking, filed by Thomas prior to his death, and the suit filed by the wrongful death beneficiaries, were still pending at the time of this appeal.

      .In the administratrix’s responses to interrogatories filed in the RJR suit in January 1999, she stated that Ezell Thomas’s children were Natasha Thomas, Houston, Texas; and Donnie Thomas, Houston, Texas. In a deposition of the administratrix, also taken in connection with the RJR suit, she was asked if she "was aware that Thomas’s only heir-at-law is his daughter”, to which she responded "yes.” When asked if she thought it would be appropriate for her, as administratrix, to notify the heir-at-law (Natasha) of the pending lawsuit, she responded that she was leaving that up to her attorney from Houston and "if anything goes any further them this” he would notify her.

      . This petition and the subsequent authorization order stated the name as Natasha Gail Mosley, not Motley. Throughout the record, the name most often used is Motley, but there is no doubt that this is one and the same person.

      . It was later determined that Donnie Thomas was actually Donnie Howard, having been given the surname of his mother, Betty Joyce Howard.


source: Caselaw Access Project

author: LEE, J.,

license: Public Domain

text:
    John A. ROSS, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01212-COA.
    Court of Appeals of Mississippi.
    June 15, 2004.
    Rehearing Denied Aug. 3, 2004.
    Certiorari Denied Oct. 14, 2004.

      George F. Hollowell, attorney for appellant.
    Office of the Attorney General, by Scott Stuart, attorney for appellee.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Deidren Ross (“Deidre”) died of a gunshot wound to the head on May 21, 2000. At the time of her death, Deidre was at her home with her husband, John Ross, and their three children. After determining that Deidre’s death was a homicide, Ross was arrested and indicted for her murder.

¶ 2. On May 4, 2002, a jury in the Circuit Court of Sunflower County found Ross guilty of the murder of his wife, Deidre. The trial court sentenced Ross to a term of life in prison to be served in the custody of the Mississippi Department of Corrections. After his post-trial motions were denied, Ross filed an appeal with this Court asserting the following issues: (1) the trial court erred in admitting Dr. Steven Hayne’s testimony concerning the autopsy, bruises, trajectory of the bullet, and the cause and manner of death; (2) the trial court erred in denying his motion to exhume Deidre’s body for examination; (3) the trial court erred in admitting evidence concerning the scene of death in light of circumstances suggesting tampering with the evidence; (4) the trial court erred in admitting evidence of prior injuries to Deidre; (5) the trial court erred in allowing allegations of his jealous nature into evidence; and (6) the State failed to meet its burden of proof.

STANDARD OF REVIEW

¶ 3. Whether evidence is admissible is within the discretion of the trial judge. Davis v. State, 684 So.2d 643, 661 (Miss.1996); Johnston v. State, 567 So.2d 237, 238 (Miss.1990). The trial judge’s decision will not be overturned on appeal unless it was an abuse of discretion. Davis, 684 So.2d at 661; Johnston, 567 So.2d at 238. This Court will not reverse the trial court’s decision merely because of an erroneous evidentiary ruling. Newsom v. State, 629 So.2d 611, 614 (Miss.1993). The appellant must show that he was effectively denied a substantial right by the ruling before a reversal can be possible. Peterson v. State, 671 So.2d 647, 656 (Miss.1996); Newsom, 629 So.2d at 614. If a constitutional right has been violated, the case must be reversed unless this Court finds that the “error was harmless beyond a reasonable doubt” upon consideration of the entire record. Newsom, 629 So.2d at 614.

DISCUSSION OF ISSUES

I. DID THE TRIAL COURT ERR IN ADMITTING DR. HAYNE’S TESTIMONY CONCERNING THE AUTOPSY, BRUISES, TRAJECTORY OF THE BULLET, AND THE CAUSE AND MANNER OF DEATH?

¶ 4. In his first issue, Ross claims that the trial court erred in admitting Dr. Hayne’s testimony concerning the autopsy, bruises, trajectory of the bullet, and the cause and manner of Deidre’s death. Specifically, Ross argues that the manner in which Dr. Hayne conducted the autopsy and documented the evidence was not consistent with accepted guidelines for proper handling and preservation of the evidence. The analysis for admission of expert testimony is enumerated in Mississippi Rules of Evidence 702. Although Rule 702 was amended on May 29, 2003, at the time of Ross’s trial, Rule 702 read as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Furthermore, at the time of the trial, Mississippi law also recognized the Frye test, noting that Rule 702 did not “relax the requirement that the scientific principle from which the expert’s opinion is derived ‘must be sufficiently established to have gained general acceptance in the particular field to which it belongs.’ ” M.R.E. 702 cmt. (repealed 2003) (quoting Frye v. United States, 293 F. 1013, 1014 (C.A.D.C. 1923)). According to Mississippi Rule of Evidence 703, the expert may base his opinion on personal observation as well as facts or data “made known to him at or before the hearing.” All evidence must also pass the requirements of Mississippi Rule of Evidence 403, which excludes evidence if it is unfairly prejudicial, confusing, or a waste of time.

¶ 5. The supreme court, in another case in which Dr. Hayne was an expert witness, stated that forensic pathology is generally accepted as a division within pathology and a forensic pathologist “addresses two basic questions: what was the cause of death, and what was the manner of death?” Bell v. State, 725 So.2d 836(¶51) (Miss.1998). The court in Bell also recognized that Rule 702 allows a forensic pathologist to “opine as to the path of the lethal gunshot wound.” Id.

¶ 6. At the trial, Dr. Hayne was qualified as an expert in forensic pathology. Dr. Hayne testified that he has done over 20,-000 autopsies in his career and been qualified as an expert around 1,700 times just in Mississippi. Ross made no objections to qualifying Dr. Hayne as an expert in the field of forensic pathology.

¶ 7. Dr. Hayne performed the autopsy on Deidre. He took photographs and measurements, made diagrams of the body and the gunshot wound, and noted various bruising on Deidre’s body. Dr. Hayne testified that some of Deidre’s bruises were consistent with defensive posturing and that these bruises occurred within six hours of her death. Dr. Hayne noted the ‘tattooing’ around the gunshot wound, which he said indicated that the muzzle was within inches of the gunshot wound. Dr. Hayne followed the tract of the bullet and, after noting the site of the wound, the distance, the trajectory of the bullet, and the position of Deidre’s body, determined that in his opinion it was not possible that Deidre fired the shot herself. Ross does argue that because Dr. Hayne did not follow the generally accepted procedures for autopsies as articulated in Spitz and Fisher’s Medicolegal Investigation of Death: Guidelines for the Application of Pathology to Criminal Investigation (3rd ed.1993) his autopsy, collection of evidence, and testimony should not have been admitted. However, Dr. Hayne testified that although he refers to Spitz, he uses other treatises more commonly.

¶ 8. Much of Ross’s argument consists of contrasting the testimony of Dr. Hayne with the testimony of Dr. James Bryant, a forensic pathologist testifying as Ross’s expert witness. However, it is the jury’s duty to determine which witness’ testimony is given the greater weight. Kolberg v. State, 829 So.2d 29 (¶ 116) (Miss.2002). Here, the jury gave the greater weight to Dr. Hayne.

¶ 9. Ross also argues that the quality of the photographs used by Dr. Hayne was insufficient to afford an unobstructed view of the injuries on the body. The quality of the photographs was discussed during a motion in limine hearing and the trial court determined that the autopsy photos would be admitted as their value goes to the weight of the evidence and not to their admissibility. Dr. Hayne took the photos during his autopsy, thus the trial court found them to be relevant and admissible. We cannot find that the trial court erred in allowing the autopsy photos into evidence.

¶ 10. We cannot find that the trial court erred in allowing Dr. Hayne to testify as to the autopsy which he performed and to opine as to the cause and manner of Deidre’s death.

II. DID THE TRIAL COURT ERR IN DENYING ROSS’S MOTION TO EXHUME DEIDRE’S BODY FOR EXAMINATION?

¶ 11. In his next issue, Ross argues that the trial court erred in denying his motion to exhume Deidre’s body in order for the body to be examined by an independent expert of his own choosing. According to Mississippi Code Annotated Section 41-61-67(2) (Rev.2001) “[a]ny person may petition the circuit court for an order of exhumation. Upon a showing of sufficient cause, the court may order the body exhumed.” Ross filed a petition to exhume the body and a hearing occurred on the matter on January 4, 2001. During the hearing Ross’s counsel stated that an exhumation might be avoided if they were given the autopsy photos as well as the blood samples, urine samples, and the gunshot residue kit. The trial court did note an inconsistency in the autopsy report, but stated that the photographs would clear it up.

¶ 12. At the end of the hearing, Ross’s counsel asked that the motion be held in abeyance until they were given a chance to examine the photographs and samples. Ross’s counsel stated that after reviewing the evidence he might “want to renew the motion after that and then the Court consider it then. I may not.” The trial court responded, “very well.” However, we cannot find in the record where Ross renewed his petition before or during trial. Ross merely alludes to the fact that the petition for exhumation was denied. We fail to see how the trial court could be in error if Ross never renewed the petition to exhume Deidre’s body. Even if Ross had renewed the motion rather than complaining about not being allowed to exhume the body, we still fail to see how the trial court erred in failing to grant the petition. The trial court obviously found that Ross’s petition failed to sufficiently show cause. This issue is without merit.

III. DID THE TRIAL COURT ERR IN ADMITTING EVIDENCE CONCERNING THE SCENE OF DEATH IN LIGHT OF CIRCUMSTANCES SUGGESTING TAMPERING WITH THE EVIDENCE?

¶ 13. In his third issue, Ross claims that the scene of death was tampered with and, thus, the photographs of the scene should not have been admitted into evidence. Ross also argues that all testimony relying on the photos of Deidre’s left arm should have been excluded as well. The admissibility of photographs rests within the sound discretion of the trial judge and, absent an abuse of discretion, his decision will be upheld. Taylor v. State, 672 So.2d 1246, 1270 (Miss.1996). When the State has produced evidence as to the chain of custody and improbability of tampering, the burden then shifts to the defendant to establish that it has been tampered with. Williams v. State, 794 So.2d 181(¶ 10) (Miss.2001).

¶ 14. Ross is specifically complaining about the photographs of Deidre holding the gun in her left hand, which is lying on top of her body. After reviewing the photographs of the scene of death, the trial court noted that “I’m not seeing that this is a[sic] different — it looks like the same scene to me, but it’s just taken — this one is taken at a different angle from this one.” In the photograph taken from a few feet from the foot of the bed, the bedspread is bunched up obscuring Deidre’s hand and the gun. Thus, it would appear that her whole body except for her head is under the covers. However, in looking at the photographs taken from different angles, it is apparent that the gun is in Deidre’s hand on top of the bedspread.

¶ 15. Ross also argues that one of the police officers on the scene stated that Deidre’s head was on the pillow and the rest of her was under the covers. In response, the trial court stated that he would not exclude the photographs based on that particular statement by the police officer. We cannot find that the trial court abused its discretion in allowing the photographs of the scene of death into evidence as Ross failed to adequately prove the scene had been tampered with.

IV. DID THE TRIAL COURT ERR IN ALLOWING INTO EVIDENCE DEIDRE’S PRIOR INJURIES?

¶ 16. In his next issue, Ross argues that the trial court erred in allowing testimony about prior injuries to Deidre into evidence. Ross contends that this was an effort to show that he had beaten her on prior occasions and, thus, was likely to have caused the bruises on the night of her death. The trial court found that the bruises were relevant to support the State’s contention that Ross and Deidre argued and fought right before Ross killed her.

¶ 17. During the testimony of Linda Baugh, the State attempted to question her as to bruises she had seen on Deidre. Ross objected stating that the evidence of bruising was not closely related in time to Deidre’s death and the trial court sustained the objection. Later, during the testimony of Steve Oswalt, Deidre’s boss, the trial court said it would allow evidence of prior bruises on Deidre if the State could connect it to some particular time. Oswalt testified that Deidre had worked for him for over three years and would periodically come show him bruises on her body. Oswalt never specifically stated that Deidre claimed Ross had inflicted these bruises on her.

¶ 18. However, we do note that when questioning his own witness, Don Steed, Ross’s counsel, on redirect, asked Steed, “Have you ever known Mrs. Ross to have bruises prior to that day?” Steed replied, “Yes, sir.” Ross’s counsel then asked Steed again, “So you had seen bruises prior to this on her arms and legs; is that correct?” Steed again replied, ‘Tes, sir.”

¶ 19. We cannot find that having two witnesses, out of over twenty who testified at trial, briefly mention that Deidre had bruises on her at various times prior to her death violates Mississippi Rule of Evidence 404(a)(1). Ross never objected to the substance of the testimony, only that the State needed to show a time frame in which the bruises occurred. The State did so and the trial court found the testimony to be relevant and allowed it into evidence. We cannot find that the trial court abused its discretion in allowing mention of prior bruises on Deidre’s body.

V. DID THE TRIAL COURT ERR IN ALLOWING TESTIMONY OF ROSS’S ALLEGED JEALOUS NATURE INTO EVIDENCE?

¶ 20. In his next issue, Ross alleges that the trial court erred in allowing testimony of his jealous nature into evidence. Steve Oswalt stated that he knew Ross was a jealous person. Ross objected stating no specific grounds and the trial court overruled his objection. Later, during the cross-examination of one of Ross’s witnesses, the State asked Everett Williams, “And after she lost a lot of weight that John got very jealous of her; is that right?” Williams responded in the affirmative and also stated that Ross had confronted him about having an affair with Deidre. Ross’s counsel never objected during this line of questioning. It is well established that the appellant must object with specificity in order to preserve an error for appeal. Renfrow v. State, 863 So.2d 1047(¶ 38) (Miss.Ct.App.2004); Oates v. State, 421 So.2d 1026, 1030 (Miss.1982). This assignment of error is proeedurally barred.

¶ 21. We do note that, during the trial, numerous witnesses testified that Ross was angry at Deidre during the party they attended the night of her death. There was testimony that Ross grabbed Deidre’s arm, tried to remove her from the dance floor, and cursed at her. Another witness testified that, at the party, Ross threw a beer bottle at Deidre, but it missed her. Ross’s counsel never objected to any of the testimony describing Ross as angry and mad at Deidre the night of her murder.

VI. DID THE STATE FAIL TO MEET ITS BURDEN OF PROOF?

¶22. In his last issue, Ross contends that the State failed to meet its burden of proof. Specifically, Ross argues that, because this was a circumstantial evidence case, the State’s evidence must prove Ross’s guilt beyond a reasonable doubt and exclude every other reasonable hypothesis. A circumstantial evidence case is one in which there is neither an eyewitness nor a confession to the crime. Mangum v. State, 762 So.2d 337, 344 (Miss.2000). To sustain a conviction on circumstantial evidence, every other reasonable hypothesis of innocence must be excluded. “[D]irect evidence is unnecessary to support a conviction so long as sufficient circumstantial evidence exists to establish guilt beyond a reasonable doubt.” Neal v. State, 805 So.2d 520, 526 (Miss.2002) (quoting Underwood v. State, 708 So.2d 18, 35 (Miss.1998)). “Circumstantial evidence need not exclude every ‘possible doubt,’ but only every other ‘reasonable’ hypothesis of innocence.” Neal, 805 So.2d at 526 (quoting Tolbert v. State, 407 So.2d 815, 820 (Miss.1981)). “Each case must be determined from the circumstances shown in the testimony and the facts must consistently point to but one conclusion — guilt.” Neal, 805 So.2d at 526.

¶ 23. Ross mainly takes issue with Dr. Hayne’s testimony, stating that it is insufficient to find that he shot Deidre. Instead, Ross claims that a reasonable hypothesis of his innocence is the possibility that Deidre shot herself. However, all of Dr. Hayne’s testimony was based upon a reasonable medical certainty that Deidre could not have fired the shot that killed her. Dr. Hayne’s testimony was based upon physical facts, the location of the entrance wound, the resting place of the bullet, and the distance from the head from which the gun was fired. Deidre had bruises on her face and defensive wounds on her arms. We find that the State met its burden of proof; thus, this issue is without merit.

¶ 24. THE JUDGMENT OF THE SUNFLOWER CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. THOMAS, J., NOT PARTICIPATING.

      . We note that although Mrs. Ross is referred to as "Deidren” in the indictment, both the appellant and the appellee refer to her as “Deidre” in the briefs presented to this Court.


author: GRIFFIS, J.,

text:
    Kelvin McKENZIE, Appellant, v. SUPERVALU, INC. and Buster Peeples, Appellees.
    No. 2002-CA-01540-COA.
    Court of Appeals of Mississippi.
    Oct. 5, 2004.

      John H. Cox, Greenville, attorney for appellant.
    Lawrence D. Wade, Greenville, attorney for appellee.
    Before KING, C.J., LEE, P.J., and GRIFFIS, J.
   GRIFFIS, J.,

for the Court.

¶ 1. Kelvin McKenzie filed suit against Supervalu, Inc. and its employee, Buster Peeples, in the Circuit Court of Washington County seeking damages for personal injuries sustained during an automobile accident. The jury returned a verdict for Supervalu and Peeples. The trial court denied McKenzie’s post-trial motions. On appeal, McKenzie asserts that the trial court erred in: (1) admitting certain testimony of James Hannah in violation of Mississippi Rule of Evidence 704; (2) admitting certain testimony of James Hannah in violation of Mississippi Rule of Civil Procedure 26(b)(4) and 26(f); and (3) denying his post-trial motions. Finding no error, we affirm.

FACTS

¶ 2. On November 1, 2000, Investigator Kelvin McKenzie of the Washington County Sheriffs Department was traveling in his unmarked squad car on Highway 82 between Leland and Greenville. Buster Peeples was driving a tractor trailer, owned by Supervalu, ahead of McKenzie on Highway 82 in route to Auto Body Rebuilders. Sometime before reaching the stretch of highway in front of Auto Body Rebuilders, McKenzie passed a vehicle driven by Larry Evans and another vehicle. Upon reaching the stretch of highway in front of Auto Body Rebuilders, McKenzie discovered the tractor trailer driven by Peeples negotiating the turn into the Auto Body Rebuilders’ driveway. McKenzie applied his brakes and attempted to steer his car around the trailer. However, his attempt failed and his car skidded into the rear of the trailer.

¶ 3. McKenzie suffered severe injuries to his ankle and lower leg as the result of the accident. He commenced his personal injury action and alleged that Peeples’ negligence was the cause of the accident. McKenzie sought to recover damages for his injuries. The jury returned a verdict in favor of Supervalu and Peeples.

ANALYSIS

I. Whether the trial court erred in admitting certain testimony of expert witness, James Hannah, in violation of Mississippi Rule of Evidence 70k.

¶ 4. McKenzie argues that the court erred in admitting expert testimony from James Hannah, an accident recon-structionist, based on paragraph six of his report, which stated:

Given the slow speed the Peeples’s vehicle was turning, if Mr. McKenzie had been keeping a proper look out and operating his vehicle under control at a safe speed, this accident would not have happened.

McKenzie asserts that this portion of the report goes beyond the type of expert opinion testimony ordinarily admitted pursuant to Mississippi Rule of Evidence 704. McKenzie cites Havard v. State, 800 So.2d 1193, 1199(¶ 17) (Miss.Ct.App.2001), which ruled that an expert’s opinion which draws from the legal definition of “negligence” is not within the witness’s expertise. However, the Havard court concluded:

the only objection made was that the witness could not “invade the province of the jury.” In fact, under Rule 704, such an invasion is not absolutely barred. Thus we find that the Defense did not make an adequate objection to the specific problem that this testimony raises.

Id. at 1199.

¶ 5. Here, McKenzie’s counsel made the following objection:

MR. COX: Your Honor, if I might respond to that? In fact, I’m glad Mr. Wade brought that up because Number Six, first of all, is an opinion of this witness that is outside his ability to express. That is a question for the jury. And I’m going to ask this Court to strike from this report before it is [sic] admission. But that fact is—
THE COURT: To strike what?
MR. COX: Paragraph Number Six under his “My opinions in the case are:” ... (repeating Paragraph Six) ... Your Honor, that is not admissible as far as an expert’s opinion. That is invading the province of the jury.

¶ 6. Mississippi Rules of Evidence 704 provides that “[tjestimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” The comment to the Rule provides:

Rule 704 abolishes the “ultimate issue rule” which existed in pre-rule Mississippi practice.... An opinion is no longer objectionable solely on the grounds that it “invades the province of the jury.”
The abolition of the ultimate issue rule does not result in the admission of all opinions. It is an absolute requirement under Rules 701 and 702 that opinions must be helpful to a determination of the case before they are admissible....

¶ 7. The sole objection, expressed at trial by McKenzie, was that Hannah’s testimony invaded the province of the jury. Rule 704 leaves no doubt that this is insufficient grounds for exclusion.

¶ 8. Given the court’s decision to overrule McKenzie’s objection and admit paragraph six of the report, it is evident that the court determined that the testimony was helpful to the determination of the case. The decision to hold certain expert testimony admissible is within the trial judge’s discretion absent an abuse of that discretion. Crawford v. State, 754 So.2d 1211, 1216(¶ 7) (Miss.2000). We hold that the judge’s decision to admit the testimony did not constitute an abuse of discretion. This assignment of error is without merit.

II. Whether the trial court erred in admitting certain testimony of expert witness, James Hannah, in violation of Mississippi Rules of Civil Procedure 26(b) (lp and 26(f).

¶ 9. In his initial calculations, Hannah relied on the speeds and distances that Peeples reported during pretrial discovery. During discovery, there were differing accounts about the speeds, the distances between the vehicles, and the distances to certain locations. Hannah considered these differences in making his calculations.

¶ 10. At trial, witnesses gave different estimates about the speeds and distances. Thus, Hannah used different numbers in his calculations. McKenzie claims that the court erred in allowing Hannah to use different numbers in calculating the speed at which he believed McKenzie’s vehicle was traveling. McKenzie argues that Hannah’s prior report should have been supplemented, pursuant to Mississippi Rules of Civil Procedure 26(f). Absent such supplementation, Hannah’s testimony and report were inadmissible.

¶ 11. McKenzie’s counsel objected on the grounds that Hannah based his calculations at trial on evidence that was not contained in his report. McKenzie’s counsel argued that it was improper for Hannah to use different figures in calculating the vehicle speeds. The court found that:

based on what has been presented as the report of Mr. Hannah, that Mr. Hannah did give notice that he would be talking about distances, speeds, and times the vehicles would be traveling; that his opinion does speak about not only the speed of Mr. McKenzie’s vehicle which does go into greater detail, but it also makes or gives the opinions about not the specific speed but the fact that Buster Peeples’ vehicle or the vehicle he was driving was traveling at a slow speed; within the deposition of this witness there was much questioning and discussion about his calculations and the speeds that he calculated. The Court doesn’t find that he is doing anything inconsistent with that in the testimony that is sought to be elicited. He’s using the same formulas — unless you want to tell me that it’s different — that he used both in his report and in his deposition’s testimony, applying those to the facts of this case. And one of the major facts of the case that was taken into consideration and he’s now being asked to testify about is the speed and the time that it would have taken for Mr. Peeples’s vehicle to travel during the course of or relatively close to the time of the accident. I don’t find it to be beyond what has been provided.
* * *
Okay. The Court is going to find that, at least, what has been presented and what I have seen is not a defense of method of calculations, and that the witness is using the — he has indicated that he’s using the facts as they have been brought out at trial today. He has sat and heard the testimony of witnesses during this trial. The issues that are subject of objection are subjects for cross-examination.

¶ 12. Mississippi Rules of Civil Procedure 26(b)(4)(A)(i) provides guidelines of what information regarding experts must be disclosed during discovery. The Rule provides that:

A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds of each opinion.

¶ 13. Hannah’s testimony and calculations relied on distances and speeds that were reported to him. At trial, when the reports of speed and distance changed, Hannah recalculated his opinion using the same methods and formulas that were admitted into evidence. The subject matter or substance of Hannah’s testimony did not change.

¶ 14. In Square D. Co. v. Edwards, 419 So.2d 1327, 1329 (Miss.1982), the supreme court held that:

a party must not only supplement interrogatories to reveal the identity of expert witnesses expected to be called at trial, but must also supplement interrogatories to reveal the substance of the testimony of such experts, if not stated in answers to the original interrogatories.

Based on the record we find that the interrogatory responses, expert designation, and deposition testimony gave McKenzie sufficient notice of the substance of Hannah’s testimony. Therefore, this assignment of error is without merit.

III. Whether the trial court erred in denying McKenzie’s post-trial motions.

¶ 15. McKenzie argues that the trial court erred in failing to grant him a directed verdict, JNOV, or new trial because the verdict was against the overwhelming weight of the evidence. Super-valu and Peeples respond that the jury was properly allowed to consider the conflicting accounts of the circumstances leading up to the accident.

¶ 16. McKenzie also submits that his testimony and Paul Evans’ testimony established that Peeples violated Mississippi Code Annotated Sections 63-3-603 (Rev. 2000) and 63-3-707 (Rev.2000). However, this conclusion disregards the fact that differing accounts of the accident were given at trial.

¶ 17. “The standard of review for denial of a judgment notwithstanding the verdict and a directed verdict are identical.” American Fire Protection, Inc. v. Lewis, 653 So.2d 1387, 1390 (Miss.1995) (citing Sperry-New Holland v. Prestage, 617 So.2d 248, 252 (Miss.1993)). We are required to consider the evidence in the light most favorable to the non-moving party, and if the facts are so overwhelmingly in favor of the moving party that a reasonable juror could not have agreed with the verdict at hand, we must reverse. Sperry-New Holland, 617 So.2d at 252. If there is substantial evidence, however, in support of the verdict, such that a reasonable person may have reached different conclusions, we must affirm. Id. In regard to a motion for a new trial, this decision is within the sound discretion of the trial judge. Green v. Grant, 641 So.2d 1203, 1207 (Miss.1994). A motion for new trial should only be granted when the entire evidence, viewed in the light most favorable to the non-moving party, leaves the trial judge with a “firm and a definite conviction that the verdict, if allowed to stand, would work a miscarriage of justice.” Id. That is not the case here.

¶ 18. Due to the conflicting facts presented at trial, the outcome of the case hinged on the jury’s determination of which rendition of facts the jury believed occurred.

¶ 19. McKenzie testified that, upon approaching the tractor trailer driven by Peeples, he moved his car into the left lane to pass the tractor trailer. Then, the tractor trailer moved into the left lane. McKenzie, attempting to pass the tractor trailer to the right, moved his car into the right lane. McKenzie testified that this was when Peeples suddenly and without signal turned to the right across the right lane.

¶20. On cross-examination, McKenzie testified that after he turned onto Highway 82 he began pursuit of a car he witnessed commit a traffic violation. However, he testified that he abandoned the chase and slowed to fifty-five miles per hour before nearing the area where the accident occurred.

¶21. Peeples testified that, before he turned, he checked behind him and was certain that the traffic was at a far enough distance for him to make the turn. He signaled and then made the turn.

¶22. Hannah testified that, according to his calculations, it was his opinion that McKenzie’s car was traveling seventy miles per hour. Evans testified - that McKenzie passed him shortly before reaching Auto Body Rebuilders at a speed of what he estimated to be sixty-five miles per hour. Robert Upshur of Auto Body Rebuilders testified that he heard the Su-pervalu tractor trailer’s brakes, walked outside, told his employees to raise the door, and then heard the squealing of tires and the crash. Upshur testified that he remembered the truck’s turn signal being on when he examined the tractor trailer.

¶ 23. The jury considered the evidence and determined that Supervalu and Pee-ples were not liable for the injuries McKenzie suffered as a result of the accident. Based on the record, there was substantial evidence presented to support this verdict. Thus, this assignment of error is without merit.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS, CHANDLER AND BARNES, JJ., CONCUR. ISHEE, J., NOT PARTICIPATING.


author: CHANDLER, J.,

text:
    Kenneth O. DILLON, Appellant, v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION and Clark Construction, Appellees.
    No. 2003-SA-01554-COA.
    Court of Appeals of Mississippi.
    Oct. 5, 2004.

      Kenneth 0. Dillon (Pro Se).
    Albert B. White, Madison, B. Ray Ther-rell, attorneys for appellees.
   CHANDLER, J.,

for the Court.

¶ 1. Kenneth 0. Dillon was terminated from employment with Clark Construction and applied for unemployment benefits. After a series of appeals within the department, the Board of Review of Mississippi Employment Security Commission denied his unemployment benefits on the grounds of misconduct as contemplated by Mississippi Code Annotated § 71-5-513(A)(l)(b) (Rev.2000). The Lincoln County Circuit Court affirmed the Commission’s decision, finding that sufficient evidence existed to support the decision.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Kenneth Dillon worked for Clark Construction in Brookhaven, Mississippi. He was terminated on October 4, 2002, for leaving work on his lunch break without permission and not returning for the rest of the day. Dillon testified that he did not return because he experienced chest pains. He told another employee, but not his supervisor, that he might not return because he did not feel well. When he returned to work the following Monday, he was told that he had been discharged for not returning or notifying his supervisor. Dillon had received no warnings concerning his work.

¶ 4. Dillon filed for unemployment benefits with the Mississippi Employment Security Commission (MESC). The claims examiner investigated the case and recommended disqualification, which Dillon appealed.

¶ 5. The appeals referee held a hearing. The hearing consisted of testimony of Dillon, a representative of Clark Construction, and a co-worker who was also terminated on October 4, testifying on behalf of Dillon. Based on the testimony at the hearing, the appeals referee found that Dillon’s actions did not constitute misconduct, under Mississippi Code Annotated § 71-5-513(A)(l)(b), entitling Dillon to unemployment benefits.

¶ 6. Clark Construction appealed the decision of the appeals referee to the Board of Review. The Board of Review agreed with the findings of fact as stated by the appeals referee but reversed its decision. It held, in pertinent part, “that the claimant was discharged because he left work without permission and without proper notice of the employer. This action by the claimant violated a rule of the employer and was consistently enforced by the employer.”

¶ 7. Dillon appealed to the Lincoln County Circuit Court, which affirmed the decision of the MESC, finding that substantial evidence and applicable law supported the decision of the Board of Review. Dillon appeals, raising the following issue:

DID THE LINCOLN COUNTY CIRCUIT COURT CORRECTLY FIND THAT SUBSTANTIAL EVIDENCE AND APPLICABLE LAW SUPPORTED THE BOARD OF REVIEW’S DECISION TO DISQUALIFY DILLON FROM RECEIVING UNEMPLOYMENT BENEFITS?

ANALYSIS

¶ 8. Dillon’s appeal from the circuit court is governed by Mississippi Code Annotated § 71-5-531 (Rev.2000), which states, in pertinent part, “[T]he findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.”

¶ 9. It is well-settled that we must give great deference to an administrative agency’s findings and conclusions. Trading Post, Inc. v. Nunnery, 731 So.2d 1198, 1200(116) (Miss.1999) (citing Allen v. Mississippi Employment Sec. Comm’n, 639 So.2d 904, 906 (Miss.1994)). We will not reweigh the facts or attempt to substitute our judgment for the agency’s. Id. We can overturn an agency decision only when the agency’s order (1) is not supported by substantial evidence (2) is arbitrary or capricious; (3) is beyond the scope or power granted to the agency; or (4) violates a person’s constitutional rights. Id. (citing Mississippi Comm’n on Environmental Quality v. Chickasaw County Bd. of Sup’rs, 621 So.2d 1211, 1215 (Miss.1993)). There is a rebuttable presumption that an agency’s decision was correct, and the challenging party has the burden of proving otherwise. Id. (citing Allen, 639 So.2d at 906).

¶ 10. The Mississippi Supreme Court has characterized misconduct as used in Mississippi Code Annotated § 71-5-513 as “conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee.” Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982). The court further clarified the definition of misconduct as “conduct that reasonable and fair-minded people would consider a wanton disregard of the employer’s legitimate interests.” Mississippi Employment Sec. Comm’n v. Percy, 641 So.2d 1172, 1175 (Miss.1994) (citing Mississippi Employment Sec. Comm’n v. Phillips, 562 So.2d 115, 118 (Miss.1990); Barnett v. Mississippi Employment Sec. Comm’n, 583 So.2d 193, 196 (Miss.1991)). In Percy, the court found that an employee’s falsification of time cards constituted misconduct because the time cards were the means by which the hospital verified the arrival and departure times of its employees, and, consequently, the amount of time worked by its hourly employees. Id. The record shows that Dillon was an hourly employee who did not have to punch a time clock to go to lunch. It is therefore very important that Dillon’s supervisor know of his employees’ whereabouts to make sure they are paid according to the amount of time they worked. There was sufficient evidence for the MESC to decide that Dillon’s behavior of leaving work without notifying his supervisor constituted misconduct as contemplated under Mississippi law.

¶ 11. At the administrative hearings, the employer has the burden of proof of showing by substantial, clear, and convincing evidence that the former employee’s misconduct constitutes disqualification from eligibility of benefits. Foster v. Mississippi Employment Sec. Comm’n, 632 So.2d 926, 928 (Miss.1994); Westbrook v. Greenville Council on Aging, 599 So.2d 948, 949 (Miss.1992); Mississippi Employment Sec. Comm’n v. Flanagan, 585 So.2d 783, 785 (Miss.1991). In this case, there was substantial evidence to support the decision of the ME SC, in large part because of Dillon’s testimony. The record shows that Dillon’s testimony was inconsistent, and it demonstrated that Dillon had the opportunity to tell his supervisor that he would be gone for the rest of the day. Although Dillon claims that it would have been impossible to tell his employer that he would not return for the day, the record also indicates that he was just across the street from the place of his employment when he went to lunch. He was with two other employees, and one of them could have notified Clark Construction that they could not return to work. Dillon states that he did not return to work because he experienced chest pains, but the Board of Review was within its discretion to discount this excuse. The record shows that Dillon was a thirty-two-year-old man with no health problems known to Clark Construction. Dillon’s terminated co-worker who testified as his witness had also appealed to the Board of Review claiming that his chest pains prevented him from notifying Clark Construction that he would be unable to return to work. In fact, in the initial determination, Dillon never mentioned that he experienced chest pains. Instead, in this initial determination, he stated that he did not return to work because he and a friend had an accident and could not return to work. Dillon also showed inconsistencies in his testimony by stating that he left for lunch with a friend at the initial hearing and later stating in his appeals referee hearing that he left by himself.

¶ 12. The Mississippi Employment Security Commission Administrative Manual Part V, Paragraph 1720, states, “An employee shall not be found guilty for violation of a rule unless: (1) the employee knew or should have known of the rule; (2) the rule was lawful and reasonably related to the job environment and job performance; and (3) the rule is fairly and consistently enforced.” The Board of Review found that Clark Construction had a rule regarding giving notice to supervisors when an employee does not work as scheduled. The Board also found this rule to be consistently applied, as evidenced by the fact that two other employees who also failed to return to work on October 4 were also fired. The fact that Clark Construction’s rule was consistently applied shows that Dillon should have been aware of Clark Construction’s procedures and policies, and there is no question that the rule is related to the work environment and job performance. We find that there was substantial evidence for the MESC to deny Dillon’s unemployment benefits on the grounds of misconduct.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY IS AFFIRMED.

KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS, GRIFFIS AND BARNES, JJ., CONCUR. ISHEE, J., NOT PARTICIPATING.


author: KING, C. J.,

text:
    Dwayne THOMAS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-CA-00222-COA.
    Court of Appeals of Mississippi.
    Oct. 5, 2004.
    James L. Penley, Vicksburg, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., LEE, P.J., and GRIFFIS, J.
   KING, C. J.,

for the Court.

¶ 1. Dwayne Thomas pled guilty in the Warren County Circuit Court to aggravated assault and attempted armed robbery. On count I, the aggravated assault charge, Thomas was sentenced to a term of eighteen years in the custody of the Mississippi Department of Corrections. On count II, attempted armed robbery, he was sentenced to serve a term of ten years in the custody of the Mississippi Department of Corrections, with five years to serve and five years suspended during five years of post-release supervision. These sentences were to run consecutively.

¶ 2. On or about May 7, 2002, Thomas filed a motion for post-conviction collateral relief which was denied by the trial court. Thomas appeals the trial court’s decision and raises the following issues which we cite verbatim:

I. Dwayne Thomas was denied his constitutional right to a speedy trial.
II. The conduct of counsel of record for Dwayne Thomas amounted to ineffective assistance of counsel.
III. The sentence imposed upon Dwayne Thomas was in violation of the statutes of this state.
IV. Dwayne Thomas’ motion for post conviction relief is not procedurally barred by § 99-39-21 MCA.

FACTS

¶ 3. In January 1999, Thomas was indicted for aggravated assault and attempted armed robbery. On September 14, 1999, Thomas, represented by appointed counsel, entered guilty pleas to the charges. At the guilty plea hearing, the trial judge questioned Thomas to determine whether his pleas to the charges of aggravated assault and attempted armed robbery were intelligently, knowingly, and voluntarily made.

¶4. The record reflects that the trial court informed Thomas of the rights he would waive by pleading guilty. Among the rights discussed by the trial judge were: (1) the right to have a trial by jui-y, (2) the right to subpoena witnesses and cross-examine witnesses, (3) the right to testify or not testify in his own behalf, and (4) the right to appeal a conviction if he went to trial. Thomas acknowledged that he was waiving these rights.

¶ 5. The trial judge informed Thomas of the maximum and minimum penalties allowable for the charges. Thomas acknowledged that he understood these penalties. The trial judge also inquired as to whether Thomas was satisfied with his attorney’s services, to which Thomas responded affirmatively.

¶ 6. After inquiry, the trial judge determined that Thomas’ pleas were intelligently and voluntarily entered. The trial court accepted the guilty pleas and sentenced Thomas in accordance with the recommendation made by the State. Thomas was sentenced to a term of eighteen years on count I in the custody of the Mississippi Department of Corrections. On count II, Thomas was sentenced to serve a term of ten years in the custody of the Mississippi Department of Corrections, with five years to serve and five years suspended for five years of post-release supervision. These sentences were to run consecutively. The court also ordered that Thomas be placed in drug and alcohol counseling and be given credit for time served.

¶ 7. On or about May 7, 2002, Thomas filed a motion for post-conviction collateral relief claiming: (1) that his sentence was invalid because he was a prior convicted felon, (2) that he received ineffective assistance of counsel, and (3) that he was denied his right to a speedy trial. On February 21, 2003, the trial court denied his request for relief.

STANDARD OF REVIEW

¶ 8. In reviewing a trial court’s denial of post-conviction relief, this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. Pace v. State, 770 So.2d 1052(¶4) (Miss.Ct.App.2000). Where questions of law are raised, the applicable standard of review is de novo. Id.

ISSUES AND ANALYSIS

I.

Whether Thomas was denied a right to a speedy trial.

¶ 9. Thomas claims that he was denied his right to a speedy trial. Thomas asserts that he was unable to present this issue to the trial court because his attorney failed to properly represent him. He maintains that he was kept in jail for nine months and had no opportunity to pursue possible leads which would have aided in his defense. Thomas was confined in jail on December 12, 1998 and entered his guilty pleas on September 14,1999.

¶ 10. The entry of a guilty plea waives the issue of whether a defendant received a speedy trial. Ellis v. State, 773 So.2d 412(¶ 5) (Miss.Ct.App.2000). In fact, Thomas signed a petition to enter a guilty plea wherein paragraph 6 informed the defendant of the constitutional rights available should he decide to plead not guilty. One of the rights listed is the right to a speedy and public trial by jury. This claim is without merit.

II.

Whether Thomas received effective assistance of counsel.

¶ 11. Thomas claims that he received ineffective assistance of counsel because his attorney had limited contact with him prior to the guilty plea hearing. He asserts that his attorney failed to communicate with him. Thomas maintains that there was no discussion of self-defense or other possible defenses to the charges. According to Thomas, he was given only one option, which was to plead guilty and accept the State’s recommendation.

¶ 12. To establish a claim of ineffective assistance of counsel, Thomas must prove, under the totality of the circumstances, that (1) his attorney’s performance was deficient and (2) the deficiency deprived the defendant of a fair trial. Jackson v. State, 815 So.2d 1196(¶ 8) (Miss.2002).

¶ 13. At the guilty plea hearing, the trial judge asked Thomas whether he was satisfied with the services of his attorney, to which Thomas indicated that he was satisfied with his attorney’s representation. This Court notes that “[sjolemn declarations in open court carry a strong presumption of verity.” Brasington v. State, 760 So.2d 18(¶ 32) (Miss.Ct.App.1999). A trial court is entitled to place great weight upon a defendant’s initial plea under oath. Templeton v. State, 725 So.2d 764(¶ 10) (Miss.1998). Thomas failed to place before the trial court evidence of such weight as to establish that his prior sworn statement of satisfaction with his attorney should be disregarded.

¶ 14. Thomas bears the responsibility of offering proof of facts to support his claim of ineffective assistance of counsel. Howard v. State, 785 So.2d 297(¶ 6) (Miss.Ct.App.2001). Thomas has failed to demonstrate that his attorney’s performance was deficient to the extent that his defense was prejudiced. This Court finds this claim to be lacking in merit.

III.

Whether Thomas received a valid sentence.

¶ 15. Thomas was sentenced to a term of eighteen years on the aggravated assault charge and ten years, with five suspended and five years of post-release supervision on the attempted armed robbery charge. Thomas now claims that the sentence for the attempted armed robbery charge was in violation of Mississippi Code Annotated Section 47-7-33(1) (Rev.2000) which precludes probation for a convicted felon. Thomas alleges that because he was a prior convicted felon, no part of his sentence should have been suspended.

¶ 16. In the order denying post-conviction relief, the trial judge cited Gaston v. State, 817 So.2d 613(¶20) (Miss.Ct.App.2002) and stated that Thomas was sentenced pursuant to Mississippi Code Annotated Section 47-7-34 (Rev.2000), “an alternative to probation designed specifically for felons,” which allows placement on post-release supervision. Clearly, the trial court did not intend to suspend any portion of Thomas’ sentence. What the trial court intended, pursuant to 47-7-34, was to sentence Thomas to five years of actual confinement, and five years of post-release supervision.

¶ 17. This Court finds that this matter should be remanded to correct the sentencing order to clearly reflect Thomas’ sentence, as stated m the order denying post-conviction relief.

IV.

Whether Thomas’ motion for post-conviction relief is procedurally barred pursuant to Mississippi Code Annotated Section 99-39-21 (Rev.2000).

¶ 18. This issue is moot.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED IN PART, REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

BRIDGES AND LEE, P.JJ., IRVING, MYERS, CHANDLER, GRIFFIS AND BARNES, JJ., CONCUR. ISHEE, J., NOT PARTICIPATING.

      . Mississippi Code Annotated Section 47-7-34 (Rev.2000) provides: (1) When a court imposes a sentence upon a conviction for any felony committed after June 30, 1995, the court, in addition to any other punishment imposed if the other punishment includes a term of incarceration in a state or local correctional facility, may impose a term of post-release supervision. However, the total number of years of incarceration plus the total number of years of post-release supervision shall not exceed the maximum sentence authorized to be imposed by law for the felony committed. The defendant shall be placed under post-release supervision upon release from the term of incarceration. The period of supervision shall be established by the court.
      (2) The period of post-release supervision shall be conducted in the same manner as a like period of supervised probation, including a requirement that the defendant shall abide by any terms and conditions as the court may establish. Failure to successfully abide by the terms and conditions shall be grounds to terminate the period of post-release supervision and to recommit the defendant to the correctional facility from which he was previously released. Procedures for termination and re-commitment shall be conducted in the same manner as procedures for the revocation of probation and imposition of a suspended sentence.
      (3) Post-release supervision programs shall be operated through the probation and parole unit of the Division of Community Corrections of the department. The maximum amount of time that the Mississippi Department of Corrections may supervise an offender on the post-release supervision program is five (5) years.


author: IRVING, J.,

text:
    Rick Lamar GRIFFIN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-KA-00776-COA.
    Court of Appeals of Mississippi.
    Oct. 5, 2004.

      Edmund J. Phillips, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
   IRVING, J.,

for the Court.

¶ 1. A Newton County jury convicted Rick Lamar Griffin of aggravated assault and possession of a firearm by a convicted felon. He was sentenced to eighteen years in the custody of the Mississippi Department of Corrections for the aggravated assault and to three years for the possession of the firearm, with the sentences running consecutively. He now appeals and asserts that the verdict was against the overwhelming weight of the evidence. Finding no error, we affirm his conviction.

FACTS

¶ 2. On September 21, 2002, during an argument with his live-in girlfriend, Christie Boyd, Rick Griffin pulled out a gun and proceeded to fire a shot at Boyd. Boyd’s brother-in-law, Teddy Jackson, knocked Griffin’s hand down, and the bullet went into the kitchen floor. Boyd ran out of the house, and Griffin ran behind her. He shot at her two additional times. As Boyd and her sister, Lisa Jackson, got into a car to leave, Griffin approached the car, broke the passenger window with the gun, and began hitting Boyd with the gun. Boyd managed to leave and summon help.

¶ 3. David Boatner, an officer with the Union Police Department who responded to Boyd’s cry for help, testified that he recovered a handgun approximately fifteen to twenty feet directly behind Griffin’s house. At trial, the gun was identified as the one used by Griffin. Additional facts will be given during our discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 4. Griffin claims that the trial court erred in denying his motion for a directed verdict as to count one, in refusing his proposed peremptory instruction, and in denying his motion for a new trial, as he contends that the verdict was against the overwhelming weight of the evidence. The State, however, counters that the jury’s verdict was not against the weight of the evidence but was amply supported by the evidence.

¶ 5. Although Griffin indicates in the caption to his issue that the verdict was against the overwhelming weight of the evidence, the argument which he makes in support of the issue goes primarily to the sufficiency and not the weight of the evidence. We will consider the sufficiency and weight of the evidence as separate matters.

¶ 6. The standard of review for a denial of a directed verdict, peremptory instruction, and a JNOV are identical. Hawthorne v. State, 835 So.2d 14, 21(¶ 31) (Miss.2003) (citing Coleman v. State, 697 So.2d 777, 787 (Miss.1997)). A motion for a JNOV, as well as a motion for a directed verdict and request for a peremptory instruction, challenges the legal sufficiency of the evidence. Hawthorne, 835 So.2d at 21(¶ 31) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). “On the issue of legal sufficiency, reversal can only occur when evidence of one or more of the elements of the charged offense is such that ‘reasonable and fairminded jurors could only find the accused not guilty.’ ” Haw thorne, 835 So.2d at 21 (¶ 31) (citing Wetz v. State, 503 So.2d 803, 808 (Miss.1987).)

¶ 7. We find that ample evidence was offered by the State in support of Griffin’s conviction. The State presented three witnesses that testified that Griffin shot the gun at least three times. Further, Boyd’s sister and brother-in-law testified that they observed Griffin shoot the gun at Boyd. Both witnesses also properly identified the gun used by Griffin on the day of the incident, and the investigating officer testified that he found a gun behind Griffin’s house. The record also reveals that immediately after the incident, Boyd, in a statement to police, implicated Griffin as the culprit. Therefore, accepting the evidence in the light most favorable to the State, the jury was justified in finding Griffin guilty. We will now address Griffin’s allegation that the verdict was against the overwhelming weight of the evidence.

¶ 8. “As distinguished from a motion for a directed verdict or a JNOY, a motion for a new trial asks to vacate the judgment on grounds related to the weight, not sufficiency, of the evidence.” Smith v. State, 802 So.2d 82, 85-86(¶ 11) (Miss.2001). Our standard of review for claims that a conviction is against the overwhelming weight of the evidence or that the trial court erred in not granting a motion for a new trial has been stated as follows:

[This Court] must “accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” A new trial will not be ordered unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an “ ‘unconscionable injustice.’ ”

Id. (quoting Crawford v. State, 754 So.2d 1211, 1222(¶ 30) (Miss.2000)).

¶ 9. Considering the evidence presented by the State in support of Griffin’s conviction, and its substantial weight against Griffin, we are not persuaded that allowing it to stand would sanction an unconscionable injustice. The evidence adduced, along with all logical inferences flowing therefrom, strongly points toward Griffin’s guilt. Consequently, we find that the trial court did not abuse its discretion in denying Griffin’s motion for a new trial.

¶ 10. Finally, although Griffin points to various conflicts in the witnesses’s testimony against him, the law is well settled that “[i]t is the role of the jury to evaluate the veracity of witnesses.” Montana v. State, 822 So.2d 954, 965(¶ 51) (Miss.2002) (citing Wetz, 503 So.2d at 812). Further, “[i]t is the jury’s province to resolve such conflicts, and the jury is free to accept the testimony of some witnesses and reject that of others, in whole or in part.” Montana, 822 So.2d at 966(¶ 51) (citing Evans v. State, 725 So.2d 613, 680-81 (¶ 293) (Miss.1997).)

¶ 11. We find no fault with any of the trial judge’s ruling; therefore, we affirm Griffin’s conviction and sentence.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF NEWTON COUNTY OF CONVICTION OF COUNT ONE, AGGRAVATED ASSAULT AND SENTENCE OF EIGHTEEN YEARS AND COUNT TWO, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCE OF THREE YEARS, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH COUNTS ONE AND TWO TO RUN CONSECUTIVELY TO EACH OTHER AND TO THE SENTENCE PRESENTLY BEING SERVED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NEWTON COUNTY.

KING, C.J., BRIDGES AND LEE, P.JJ., MYERS, CHANDLER, GRIFFIS, AND BARNES, JJ., CONCUR. ISHEE, J., NOT PARTICIPATING.


author: MYERS, J.,

text:
    Thomas Alfred MOODY, Appellant, v. Laura Marie Shein MOODY, Appellee.
    No. 2003-CA-01416-COA.
    Court of Appeals of Mississippi.
    Oct. 12, 2004.
    William R. Wright, Jackson, attorney for appellant.
    David Alan Pumford, attorney for appel-lee.
   ON MOTION FOR REHEARING

MYERS, J.,

for the Court.

¶ 1. The chancery court denied Thomas Moody’s motion for entry of supplemental judgment of divorce and -at the same time found Mr. Moody to be in contempt of court for failing to follow the prior orders of the court. On June 20, 2003, Mr. Moody filed a notice of appeal which stated that he was appealing the chancery court’s “ruling ... denying his Motion for Entry of Supplemental Judgement of Divorce.” Because this Court inadvertently addressed issues which had been dismissed from the appeal, this Court grants the appellee’s motion for rehearing, withdraws its prior opinion, and substitutes this opinion in its place.

¶ 2. After the notice of appeal was filed, Laura Moody, as appellee, filed with the Mississippi Supreme Court a Motion to Docket and Dismiss Appeal and Motion for Sanctions. Mr. Moody did not file a response. The supreme court granted the motion to the extent that the court found that the notice of appeal of the Final Judgment of Divorce was not timely filed and granted that part of the appellee’s motion. The court did not grant the part of the motion which sought to dismiss the appeal of the Final Judgment of Contempt.

¶3. Despite the supreme court’s order, the appellant in his brief before the Court addressed not only the judgment of contempt but also issues concerning the judgment of divorce which had been eliminated from the appeal. A motion to strike those issues already dismissed by the supreme court was passed for consideration along with the merits of the appeal by the supreme court. We now find that the motion should have been granted to the extent that the part of the brief addressing issues previously dismissed should have been struck from the brief. The motion for sanctions should be denied.

¶ 4. Based on the supreme court’s order, the only issue remaining before this Court is that part of the June 23 judgment that found Mr. Moody in contempt of court.

DISCUSSION

¶ 5. The November 18, 2002 amended memorandum opinion stated, among other things, that Ms. Moody was entitled to one-half interest in an IRA that was in Mr. Moody’s name; Mr. Moody was to pay the college tuition of their oldest son; Mr. Moody was to pay Ms. Moody and the children’s medical expenses not covered by insurance; and Mr. Moody was to have a life insurance policy naming Ms. Moody as trustee. Mr. Moody failed to comply fully with these orders and the June 2003 finding of contempt was based upon this fact. “The factual findings of the chancery court in a civil contempt case are affirmed unless manifest error is present and apparent.” Premeaux v. Smith, 569 So.2d 681, 683 (Miss.1990).

¶ 6. Mr. Moody was obligated to follow a court order until amended or reversed. He did not when he failed to make the required payments. The behavior necessary for a finding of contempt must amount to a willful or deliberate violation of a judgment or decree. Dunaway v. Bushin, 498 So.2d 1218, 1222 (Miss.1986). The chancellor was correct to find contempt. Rogers v. Rogers, 662 So.2d 1111, 1114 (Miss.1995).

¶ 7. THE JUDGMENT OF THE CHANCERY COURT OF LAMAR COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, CHANDLER AND GRIFFIS, JJ., CONCUR. BARNES AND ISHEE, JJ., NOT PARTICIPATING.


author: PER CURIAM. LYONS, Justice JOHNSTONE, Justice

text:
    SCI ALABAMA FUNERAL SERVICES, INC., and Service Corporation International v. Roger CORLEY et al.
    1020450.
    Supreme Court of Alabama.
    Dec. 12, 2003.
    Andrew P. Campbell, Cinda R. York, and Wendy T. Tunstill of Campbell, Waller & Poer, LLC, Birmingham, for appellants.
    Leah 0. Taylor and Rhonda Pitts Chambers of Taylor & Taylor, Birmingham, for appellees.
   PER CURIAM.

On the authority of Service Corp. International & SCI Alabama Funeral Services, Inc. v. Fulmer, 883 So.2d 621 (Ala.2003), the order of the trial court denying the motion of the defendants-appellants to compel arbitration is affirmed insofar as it applies to the plaintiffs’ claims against Service Corporation International but is reversed insofar as it applies to the plaintiffs’ claims against SCI Alabama Funeral Services, Inc. (“SCI-Alabama”). We further reject the argument of the nonsignatory plaintiffs that their nonsignatory status spares them the burden of the arbitration agreements between the signatory plaintiffs and SCI-Alabama. Because the nonsignatory plaintiffs’ claims, which are identical to the signatory plaintiffs’ claims, depend on the obligations undertaken by SCI-Alabama pursuant to the contracts containing the arbitration agreements, the non-signatory plaintiffs, like the signatory plaintiffs, are bound by the arbitration agreements. Colonial Sales-Lease-Rental, Inc., d/b/a Colonial RV Ctr. v. Target Auction & Land Co., 735 So.2d 1161 (Ala.1999). This case is remanded for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

HOUSTON, BROWN, and WOODALL, JJ., concur.

LYONS, J., concurs in part and concurs in the judgment.

JOHNSTONE, J., concurs in the rationale in part and concurs in the judgment.

LYONS, Justice

(concurring in part and concurring in the judgment).

I concur in all aspects of the main opinion with the sole reservation that I adhere to the views expressed in my special writing in Service Corp. International v. Fulmer, 883 So.2d 621, 637 (Ala.2003) (Lyons, J., concurring in the rationale in part and concurring in the judgment).

JOHNSTONE, Justice

(concurring in the rationale in part and concurring in the judgment).

I concur in the holding that the nonsig-natory plaintiffs, like the signatory plaintiffs, are bound by the arbitration agreements with SCI-Alabama and that the nonsignatory defendant SCI is not entitled to the protection of those arbitration agreements. I also concur in the judgment. I adhere to the views expressed in my special writing in Service Corp. International & SCI Alabama Funeral Services, Inc. v. Fulmer, 883 So.2d 621, 637 (Ala.2003) (Johnstone, J., concurring in the rationale in part and concurring in the judgment).


author: HOUSTON, Justice. JOHNSTONE, Justice

text:
    COOK’S PEST CONTROL, INC. v. Fred HASTINGS and Brenda Hastings.
    1021795.
    Supreme Court of Alabama.
    Dec. 12, 2003.
    Clifton E. Slaten, Mindi C. Robinson, M. Andrew Donaldson, and Jason J. Baird of Slaten & O’Connor, P.C., Montgomery, for appellant.
   HOUSTON, Justice.

The Marshall Circuit Court denied the motion to compel arbitration filed by Cook’s Pest Control, Inc. (“Cook’s”), finding that the transaction did not involve interstate commerce; the court’s ruling was based on our now abrogated decision in Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000). We reverse the order denying the motion and remand the cause for consideration in light of Service Corp. International v. Fulmer, 883 So.2d 621 (Ala.2003), and Bowen v. Security Pest Control, Inc., 879 So.2d 1139 (Ala.2003).

REVERSED AND REMANDED.

BROWN and WOODALL, JJ„ concur.

LYONS and JOHNSTONE, JJ., concur in the result.

JOHNSTONE, Justice

(concurring in the result).

I concur in the result. On remand the issue of whether the transaction “involved” interstate commerce should be analyzed by reference directly to Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003), which reversed Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000). In my opinion, Service Corp. International v. Fulmer, 883 So.2d 621 (Ala.2003), and Bowen v. Security Pest Control, Inc., 879 So.2d 1139 (Ala.2003), gratuitously and invalidly expand Citizens Bank, which is already expansive enough, in identifying the characteristics of a transaction that will constitute such “involvement” of interstate commerce as will support the application of the Federal Arbitration Act. See my special writings in Fulmer and Bowen.