text:
    Barbara Washington WILLIAMS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00572-COA.
    Court of Appeals of Mississippi.
    June 3, 2003.
    Rehearing Denied Sept. 30, 2003.

      Pamela A. Ferrington, Natchez, attorney for appellant.

      Office of the Attorney General by Deirdre MeCrory, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and GRIFFIS, JJ.
   LEE, J.,

for the court.

PROCEDURAL HISTORY

¶ 1. In February 1997, Barbara Washington Williams and Luie Vigo Santiago were indicted by a Wilkinson County grand jury on charges of sale of a schedule II controlled substance within a church zone and possession of a schedule II controlled substance with intent to deliver within a church zone. Williams filed a motion requesting severance, and the judge severed her case from that of her co-defendant, Santiago. Williams’s first trial in June 1997 ended in a mistrial after statements in appreciation of law enforcement officers were made in open court in the presence of the jury, which the judge found caused irreparable prejudice to Williams. After a second trial in October 1997, a jury convicted Williams on Count I of sale of cocaine in a church zone, but was not able to reach a verdict on Count II of possession of cocaine with intent to deliver within a church zone. Thereafter, Williams was sentenced to serve thirty years in the custody of the Mississippi Department of Corrections. Williams’s motion for new trial and/or judgment notwithstanding the verdict was denied, and she now appeals to this Court alleging the following: (1) the court erred when it denied defendant’s motion for a mistrial after a State’s witness referred to the co-defendant as a “Columbian”; (2) the evidence presented at trial was insufficient to support the jury’s verdict; and (3) the trial court erred in denying the defendant’s motions for a mistrial when the jury sent two notes to the judge indicating its confusion and lack of understanding. We review these issues and find no merit; accordingly, we affirm.

FACTS

¶ 2. On or about November 17, 1996, confidential informant Kendrell Davis, wearing a body wire, went to a trailer in Crosby, Mississippi, and made a controlled buy of $1,800 worth of cocaine from the appellant and from Luie Vigo Santiago. Officers Kenneth Cotton and Kenny Anderson of the Mississippi Bureau of Narcotics and Wilkinson and Amite County police officers monitored the transaction. Upon Davis’s return from the meeting, agents from the Bureau of Narcotics went to the trailer and found Santiago with the marked $1,800 in his possession. Agent Cotton left and returned with a search warrant, and thereafter found cocaine in Williams’s purse and in a duffle bag under a bed. Williams and Santiago were immediately arrested. The distance from the front door of the trailer to the front door of Crosby Union Baptist Church was just over 1,200 feet per Agent Cotton’s measurement.

DISCUSSION OF THE ISSUES

I. DID THE COURT ERR IN DENYING THE APPELLANT’S MOTION FOR MISTRIAL?

¶ 3. Williams first argues that the trial judge erred in denying her motion for mistrial during jury selection.

“This Court has repeatedly held that the granting of a motion for a mistrial is within the sound discretion of the trial judge.” The reviewing court recognizes that the trial judge is in the best position to determine whether an objectionable remark has had any prejudicial effect. For this reason, the trial court is allowed considerable discretion in determining whether a remark was so prejudicial that it warrants a mistrial.

Shipp v. State, 749 So.2d 300(¶ 13) (Miss.Ct.App.1999) (citations omitted).

¶ 4. After the jurors were selected but prior to their seating, Williams moved for a mistrial because the prosecutor in voir dire referred to Luis Santiago as a “Co-lumbian.” Williams argued that the prosecutor was attempting to introduce race to prejudice the venire toward Williams by association. Also, Williams claims the prosecutor erroneously referred to Santiago as being married to Williams’s sister, again attempting to bias the jury by association. The prosecutor responded that he did intend to put on evidence to prove these two things, as he told the court previously. The court overruled the motion and instructed all counsel not to interject anything they did not intend to put into evidence.

¶ 5. Later in the trial, defense counsel was cross-examining Agent Kenneth Anderson. In response to the question of how he knew Santiago and Williams had acted in concert with one another, Agent Anderson said the marked $1,800 was found in Santiago’s pocket, which Williams must have given him, and then added, “And then, you know, the report, and I think you got a copy Of it, there was a check that he had in his pocket to some guy. And Luis is from Columbia and he don’t know that guy in Crosby from me or anybody else.” Later, when the jury recessed for lunch, the judge and attorneys met in chambers at which time Williams’s attorney moved for a mistrial stating:

MS. DUNMORE: First of all, I move for a mistrial because Sergeant Anderson, Officer Anderson, referred to Luis as a Columbian and the Court has ruled as instructed that he should not be referred to as a Columbian because it was prejudice to the defendant and this witness did that in front of the jury. I did not make the statement in front of the jury because I thought it would even further prejudice my client. It’s their responsibility to inform their witnesses what the rules of the Court are and I think it prejudiced my client. This is the second time it was done. It was done earlier in the trial. I think it was intentional or may even be an attempt to force me to ask for a mistrial on it, but I don’t have any other choice but to protect my client’s interest. So I move for a mistrial that they violated the order limiting the use of the term Columbian in reference to Luis.
MR. ROSENBLATT: Which we would respond, Your Honor, that the first time the Court instructed us was in response to one of the attorneys referring to him as a Columbian. The Court instructed us at this time to refrain from referring to him by nationality by calling him a Hispanic. We did not specifically instruct our witnesses one by one to refer to him as a Columbian because that would be in the scope of the Court’s order and the Court is free to take testimony on the questions that this witness — this witness’s remarks came as a total surprise to us and came in response to questions by Ms. Dunmore. Not in our questioning did we in no way inform him to make that reference or elicit it from him or instructed him to do so. And having made the objection, we then at that point specifically instructed all of our witnesses not to make any sort of nationality references.

¶ 6. The court found that Agent Anderson’s remarks were made in response to defense counsel’s question, and the testimony was harmless because it was “not a big deal” about his nationality. Williams cites Rule 3.12 of the Uniform Rules of Circuit and County Court Practice which states:

Upon motion of any party, the court may declare a mistrial if there occurs during the trial, either inside or outside the courtroom, misconduct by the party, the party’s attorneys, or someone acting at the behest of the party or the party’s attorney, resulting in substantial and irreparable prejudice to the movant’s case.
Upon motion of a party or its own motion, the court may declare a mistrial if:
1. The trial cannot proceed in conformity with law; or
2. It appears there is no reasonable probability of the jury’s agreement upon a verdict.

¶ 7. Williams argues that Anderson’s statement was highly prejudicial because everyone knows that the country of Columbia is synonymous with lawless drug cartels. Therefore, Anderson’s referring to Santiago as a Columbian in direct violation of the court’s admonition resulted in “substantial and irreparable prejudice” to her trial because Anderson’s statement created in the minds of the jurors an impermissible presumption that she, too, was a drug dealer.

¶ 8. The State first rebuts that since Williams failed to raise a contemporaneous objection, she is barred from appellate review. Defense counsel told the court that she did not object at the time because she feared bringing it to the jury’s attention. “Unless the objection is raised contemporaneously so as to allow the trial court to consider the issue and possible remedies, the issue is waived.” Collins v. State, 734 So.2d 247(¶ 8) (Miss.Ct.App.1999). With Williams’s failure to object when the improper testimony came forth, the judge was not given opportunity to consider remedial measures. Although this was error, we find it to be harmless in light of the fact that the other evidence overwhelmingly supported the jury’s verdict.

¶ 9. Concerning the merits of the motion for mistrial, we refer back to Rule 3.12 which states that the judge should grant the motion if the trial cannot proceed in conformity with law or if it appears there is no reasonable probability of the jury’s agreement upon a verdict. Williams makes no convincing argument that the trial could not proceed in conformity with law and, as described further in issues II and III, the evidence was sufficient to warrant the jury’s agreement upon their verdict of guilty. There is no merit to this issue.

II. WAS THE EVIDENCE SUFFICIENT TO SUPPORT THE VERDICT?

¶ 10. With her next issue, Williams argues the evidence was insufficient to support the jury’s verdict of guilty, and we look to our requisite standard of review.

To test the sufficiency of the evidence, we must, with respect to each element of the offense, consider all of the evidence — not just the evidence which supports the case for the prosecution — in the light most favorable to the verdict. The credible evidence which is consistent with guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fairminded jurors could only find the accused not guilty.

Jones v. State, 791 So.2d 891(1110) (Miss.Ct.App.2001).

¶ 11. Williams argues that Davis’s incriminating testimony was not reliable because Davis was a convicted felon with pending felony charges against him. Williams also contends that Davis’s testimony was unsupported by other evidence, namely that although Davis claimed to have bought cocaine from Williams, Santiago was the one with the marked money in his pocket. Plus, Williams argues the State failed to produce evidence that Williams had handled the money or the cocaine.

¶ 12. Davis is not the only person who testified for the prosecution. Agents Kenny Cotton and Kenneth Anderson also testified as to the events they heard over Davis’s body wire. Additionally, the jury knew of Davis’s situation and was able to give whatever weight necessary to his testimony. Our standard of review requires that matters regarding the weight and credibility be resolved by the jury, and we are allowed to reverse if reasonable and fair-minded jurors could only find the accused not guilty. Here, viewing the evidence in a light favorable to the State, we find the evidence was sufficient to support the verdict. This issue has no merit.

III. DID THE TRIAL COURT ERR IN DENYING THE DEFENDANT’S MOTIONS FOR A MISTRIAL WHEN THE JURY SENT TWO NOTES TO THE JUDGE INDICATING ITS CONFUSION AND LACK OF UNDERSTANDING?

¶ 13. Williams finally argues that the trial court erred in answering the two notes sent by the jury and that the trial judge erred in giving the instruction concerning the form of the verdict.

¶ 14. Following are excerpts from the record where the jury sent the judge two separate notes while they were deliberating:

THE COURT: The time now is 4:30 and we have received a note from the jury and the note says, “Was what [sic] found in the bag under the bed and the purse, should it be Count 2 or separate?”
MS. DUNMORE.: Okay. Read it again.
THE COURT: ‘Was what [sic] found in the bag under the bed and the purse, should it be Count 2 or separate?”
(OFF THE RECORD.)
(BACK ON THE RECORD.)
THE COURT: The Court has consulted with counsel for the defendant and the district attorneys and the answer that will be sent back to the jurors is that the answer is “Count 2. Lillie Blackmon Sanders, Circuit Court Judge, at 4:35 p.m.”

¶ 15. Half an hour later, the jury sent a second note which produced the following dialog in chambers:

THE COURT: The time is now 5:05 p.m. We’ve just received a second note from the jury and it says, We don’t understand Count 2. Is Exhibit No. 8 and Exhibit No. 14 both under Count 2?”
MS. DUNMORE: Same, yes.
THE COURT: And the answer is yes.

¶ 16. Williams claims that the answers given by the judge in response to the jury’s question were improper because they were impermissible comments upon the testimony and upon the weight of the evidence in violation of Miss.Code Ann. § 99-17-35 (Supp.2002). Williams cites to Mickell v. State, 735 So.2d 1031 (¶¶ 9-10) (Miss.1999), which stated:

As a general proposition, the trial judge should not give undue prominence to particular portions of the evidence in the instructions. This prophylactic rule has the salutary purpose of protecting the jury from their natural inclination to put great weight in the judge’s statements. To that end, this Court has held that instructions which emphasize any particular part of the testimony in such a manner as to amount to a comment on the weight of that evidence are improper.... In the present case, whether or not Mickell had a gun was a central issue to the case.

Mickell, 735 So.2d at (¶¶ 9-10) (citations omitted). The Mickell jury sent a note to the judge asking whether or not they could convict a person of armed robbery without the policeman finding the gun. Id. at (¶ 5). Over Mickell’s objection, the trial court wrote “yes” on the note and returned it to the jury, and the jury subsequently found Mickell guilty of armed robbery. Id.

¶ 17. In the present case, the notes sent by the jury did not require the judge to comment on the evidence, but merely required clarification on the “housekeeping” type issue of which evidence went with which count, not like in Mickell where the judge’s answer acted to seal the jury’s verdict. Williams also argues that the form of the verdict was confusing and misleading, as evidenced by the jury’s need to send notes to the judge stating such. However, since the jury was unable to reach a verdict on Count II, Williams has shown no prejudice, and we find no merit.

¶ 18. THE JUDGMENT OF THE WILKINSON COUNTY CIRCUIT COURT OF CONVICTION OF SALE OF A CONTROLLED SUBSTANCE, COCAINE, WITHIN A CHURCH ZONE AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO WILKINSON COUNTY.

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

      . "The judge in any criminal cause, shall not sum up or comment on the testimony, or charge the jury as to the weight of evidence....” Miss.Code Ann. §99-17-35 (Supp.2002).


source: Caselaw Access Project

author: THOMAS, J.,

license: Public Domain

text:
    Gerald L. BURGE, Appellant, v. Christina G. SPIERS, Appellee.
    No. 2002-CA-00808-COA.
    Court of Appeals of Mississippi.
    June 3, 2003.

      Glenn Louis White, Hattiesburg, John D. Smallwood, Tupelo, attorneys for appellant.
    Philip W. Gaines, Jackson, Tonya Michelle Blair, attorneys for appellee.
    Before KING, P.J., THOMAS, MYERS, and GRIFFIS, JJ.
   THOMAS, J.,

for the court.

¶ 1. Gerald Burge and Christina Spiers were involved in an accident in which Spi-ers’ car rear-ended Burge’s vehicle. Burge filed a negligence complaint and Spiers admitted liability. A jury awarded Burge $2,137 in damages, the exact amount Burge claimed in medical expenses. Burge filed a motion for additur or, in the alternative, for a new trial. The trial court denied Burge’s motion. Aggrieved, Burge asserts the following issue on appeal.

THE TRIAL COURT ERRED IN FAILING TO GRANT BURGE’S MOTION FOR ADDITUR OR NEW TRIAL WHERE THE JURY AWARDED DAMAGES FOR MEDICAL EXPENSES BUT FAILED TO AWARD DAMAGES FOR PAIN AND SUFFERING OR FUTURE MEDICAL EXPENSES.

FACTS

¶2. In June, 1996, forty-five-year-old Gerald Burge was driving south on Highway 11 in Picayune, Mississippi, when the vehicle in front of him stopped. As Burge slowed his vehicle, the vehicle behind Burge, driven by Christina Spiers, rear-ended Burge’s vehicle. According to the accident report, Burge’s car sustained heavy damage and had to be towed from the scene. Both Burge and Spiers declined treatment at the scene. Later, Burge sought treatment at Crosby Memorial Hospital. X-rays taken on this date were normal except for long-term, preexisting degenerative and arthritic changes to his lumbar spine which were admittedly not related to the accident.

¶ 3. Burge was referred to Dr. Bruce McCarthy on July 9, 1996, complaining of neck pain. Dr. McCarthy found a loss of motion in the upper neck and tenderness in the lumbar area and diagnosed ligament injuries in Burge’s neck and lower back. Dr. McCarthy found that Burge had lost 10% of function from the neck region and 10% from the lumbar region and recommended Burge undergo back surgery which would cost approximately $30,000. Burge had incurred approximately $2,787 in medical bills.

¶ 4. Burge brought suit against Spiers, who admitted liability. Burge put on evidence of his injuries and treatments. Spi-ers impeached Burge with a history of prior spinal surgery, prior diagnosis of physical disability, chronic lower back problems, and contradictory sworn statements made in another court case in Louisiana. At the conclusion of trial, the jury awarded Burge $2,137. Burge made a motion for additur or, in the alternative, a new trial which the trial court denied.

ANALYSIS

DID THE TRIAL COURT ERR IN FAILING TO GRANT BURGE’S MOTION FOR ADDITUR OR NEW TRIAL WHERE THE JURY AWARDED DAMAGES FOR MEDICAL EXPENSES BUT FAILED TO AWARD DAMAGES FOR PAIN AND SUFFERING OR FUTURE MEDICAL EXPENSES?

¶ 5. Burge asserts that the trial court erred in failing to grant his motion for additur or, in the alternative, a new trial because the jury awarded damages for medical expenses but failed to award damages for pain and suffering or future medical expenses. Burge cites authority which states that “a jury verdict awarding damages for medical expenses alone is against the overwhelming weight of evidence.” Scott Prather Trucking, Inc. v. Clay ex rel. Sanders, 821 So.2d 819, 822(¶ 12) (Miss.2002) (citing Rodgers v. Pascagoula Pub. Sch. Dist., 611 So.2d 942, 945-46 (Miss.1992)); see also Pham v. Welter, 542 So.2d 884 (Miss.1989); Matkins v. Lee, 491 So.2d 866 (Miss.1986); City of Jackson v. Ainsworth, 462 So.2d 325 (Miss.1984); Biloxi Elec. Co. v. Thorn, 264 So.2d 404 (Miss.1972). However, “each case involving the issue of an additur must ‘necessarily be decided on its own facts.’” Green v. Grant, 641 So.2d 1203, 1208 (Miss.1994) (quoting Leach v. Leach, 597 So.2d 1295, 1297 (Miss.1992)).

¶ 6. The scope of review that this Court employs in considering an appeal of a denial of additur is limited to “determining whether the trial court abused its discretion.” Rodgers, 611 So.2d at 945. The court, in Rodgers, further stated that the party seeking the additur has the burden of proving his injuries, damages and loss of income. In determining whether this burden is met, this Court must view the evidence in the light most favorable to the defendant, giving that party all favorable inferences that reasonably may be drawn therefrom. Id. An additur should never be applied without taking great caution, for an additur represents “a judicial incursion into the traditional habitat of the jury.” Gibbs v. Banks, 527 So.2d 658, 659 (Miss.1988). Further, “[ajwards fixed by jury determination are not merely advisory and will not under the general rale be set aside unless so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous.” Rodgers, 611 So.2d at 945.

¶ 7. In the case at bar, Spiers admitted negligence but contested the damages claimed by Burge. Burge placed into evidence his medical bills and the testimony of his treating physician, Dr. Brace McCarthy, who testified that Burge suffered from back and neck injuries and would need surgery in the future. On cross-examination, Spiers impeached Burge with a history of prior spinal surgery, prior diagnosis of physical disability, chronic lower back problems, and contradictory sworn statements made in another court case in Louisiana. Burge had been diagnosed previously with an inability to lift more than 5-10 pounds, inability to bend, limited range of motion, complications in his back from diabetes, and had several prior injury events and at least one subsequent injury event.

¶ 8. Burge had previously testified on direct examination that he was fine until the accident in question. In an unrelated deposition given in Louisiana the year pri- or to his accident with Spiers, however, Burge had testified that he still had back problems from the injury in question. Also, on cross-examination, Dr. McCarthy testified that his expert opinion was made without a complete review of Burge’s medical history including no knowledge of Burge’s back injuries and history of problems from 1980 until Burge was referred to him in 1996. According to Dr. McCarthy, he was told by Burge that other than prior back surgeries in 1979 or 1980, he had no complications or problems with his back until the accident with Spiers. This was directly contradictory to Burge’s testimony where he admitted problems in the late 1980’s.

¶ 9. It is the jury that determines “the weight and worth of testimony and the credibility of the witness at trial.” Odom v. Roberts, 606 So.2d 114, 118 (Miss.1992). As stated above, this Court applies the abuse of discretion standard of review when determining whether a trial court erred in refusing an additur or a new trial. “It is primarily the province of the jury to determine the amount of damages to be awarded and the award will normally not ‘be set aside unless so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous.’ ” Harvey v. Wall, 649 So.2d 184, 187 (Miss.1995) (quoting Rodgers, 611 So.2d at 945).

¶ 10. Like the case in Haywood v. Collier, 724 So.2d 1105 (Miss.Ct.App.1998), the jury was presented with evidence that showed conflicting sworn testimony of the appellant concerning his prior medical condition and previous injuries and evidence that called into question the credibility of the expert medical testimony presented on his behalf. By impeaching the causation of the damages claimed by Burge, there is ample evidentiary support for the verdict returned by the jury. It appears quite likely the jury gave Burge the benefit of being examined while not connecting the injuries to this particular accident. We will not disturb the finding of the jury in the case sub judice because the trial court did not abuse its discretion in ruling that the $2,137 verdict was not against the overwhelming weight of the evidence, and in no way evinced bias or prejudice on the part of the jury.

¶11. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Sylvester McDOWELL, Appellant, v. G.B. ‘Boots’ SMITH and Lumbermen’s Underwriting Alliance, Appellee.
    No. 2001-WC-01136-COA.
    Court of Appeals of Mississippi.
    June 17, 2003.
    Rehearing Denied Sept. 23, 2003.

      R. Charles Robb, Jackson, attorney for appellant.
    Joseph T. Wilkins III, Jackson, attorney for appellee.
    Before McMILLIN, C.J., THOMAS, MYERS, and CHANDLER, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Sylvester McDowell sustained a work related injury to his left foot while employed with G.B. “Boots” Smith as a laborer. McDowell filed a workers’ compensation claim and was awarded twelve and one half weeks of compensation by the administrative law judge. Mr. McDowell appealed to the Full Commission. The Full Commission remanded the case to the administrative law judge, who awarded McDowell fifty weeks of compensation at $243.75 per week in addition to the twelve and one half weeks previously ordered. McDowell again appealed to the Full Commission, which affirmed the administrative law judge. McDowell appealed to the Warren County Circuit Court, which affirmed the Full Commission and administrative law judge. Aggrieved, he asserts the following issues:

I. AN EMPLOYEE IS NOT BARRED FROM PROVING A TOTAL AND PERMANENT OCCUPATIONAL DISABILITY TO OBTAIN AN AWARD IF HE HAS A SCHEDULED MEMBER INJURY AND AFTER HAVING REACHED MAXIMUM MEDICAL IMPROVEMENT EARNS WAGES IN AN AMOUNT LESS THAN HIS PRE-INJURY WAGES.

II. THE TRIAL COURT ERRED IN RENDERING JUDGMENT WHEN THE COMMISSION HAD NOT ISSUED A JUDGMENT BASED UPON ITS OWN FINDINGS OF FACT AND CONCLUSIONS OF LAW BUT RATHER AFFIRMED THE OPINION OF THE ADMINISTRATIVE JUDGE ON REMAND WHICH WAS NOT BASED ON SUBSTANTIAL EVIDENCE.

III. THE DECISION OF THE ADMINISTRATIVE JUDGE WAS ARBITRARY AND CAPRICIOUS.

IV. MCDOWELL’S INJURY WAS INCORRECTLY TREATED AS A SCHEDULED MEMBER CASE RATHER THAN AN IMPAIRMENT TO THE BODY AS A WHOLE.

V. THE STIPULATION REGARDING MCDOWELL’S AVERAGE WEEKLY WAGE WAS ERROR AND SHOULD BE SET ASIDE.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Sylvester McDowell sustained an injury to his left foot on December 20, 1994, while he was employed with G.B. “Boots” Smith as a laborer. McDowell was treated by Dr. Grant A. Dona, an orthopedic surgeon from Louisiana. According to Dr. Dona, McDowell reached maximum medical improvement by February 12, 1998. On February 13, 1998, Dr. Dona faxed a message to the G.B. “Boots” Smith’s insurance carrier notifying them that he estimated McDowell’s impairment rating at “5% of the whole person.” On May 4, 1998, Dr. Dona completed a form stating similarly that McDowell had a 5% medical impairment.

¶4. At an initial hearing before an administrative law judge on August 24, 1998, McDowell was awarded twelve and one half weeks of compensation. This award was made without a functional capacity examination being administered and without an employment opportunities evaluation. Also, McDowell’s attorney stipulated that McDowell’s average weekly wage was $425. McDowell appealed the decision and released his attorney. That attorney then dismissed the appeal without the authority to do so. McDowell retained new counsel and the appeal was reinstated and heard by the Full Commission. The Full Commission remanded the case to the administrative law judge, noting that McDowell’s former counsel failed to adequately develop any credible proof and that a reasonable period of time should be given so that relevant evidence may be obtained and presented.

¶ 5. A second hearing before an administrative law judge was held on October 29, 1999. McDowell presented evidence of his disability and loss of wage earning capacity, including a medical finding of 5% impairment to the body as a whole, a functional capacity evaluation, and an employment opportunities evaluation. McDowell testified that he was forty-seven years old and had an eleventh grade education. McDowell also attempted to offer his payroll check of December 18, 1994, which showed an average weekly wage of $573.58 for the fifty weeks immediately preceding McDowell’s injury. The employer/earrier objected and the administrative law judge sustained the objection. The employer/carrier offered no proof to contradict its own payroll document but the administrative law judge relied on the stipulation made by McDowell’s former attorney which set his weekly wage at $425. Mr. McDowell testified that he was employed by a service station and was earning $200 per week.

¶ 6. The administrative law judge, in his opinion, found that McDowell had sustained a scheduled member injury to the left foot and that his functional loss of use was greater than the medical impairment rating offered by Dr. Dona. He went on to find that although McDowell had considerable functional loss, he maintained the ability to secure gainful employment. The administrative law judge awarded McDowell fifty weeks of compensation at $243.75 per week in addition to the twelve and one half weeks previously ordered, and found that since it was a scheduled member case the average weekly wage was not an issue.

¶ 7. McDowell appealed on January 31, 2000, and the Commission affirmed without entering findings of fact and conclusions of law on June 15, 2000. McDowell appealed this decision to the Warren County Circuit Court on June 21, 2000. The circuit court affirmed the Commission’s decision, and McDowell filed a timely appeal to this Court.

ANALYSIS

I. IS AN EMPLOYEE BARRED FROM PROVING A TOTAL AND PERMANENT OCCUPATIONAL DISABILITY TO OBTAIN AN AWARD IF HE HAS A SCHEDULED MEMBER INJURY AND AFTER HAVING REACHED MAXIMUM MEDICAL IMPROVEMENT EARNS WAGES IN AN AMOUNT LESS THAN HIS PRE-INJURY WAGES?

II. DID THE TRIAL COURT ERR IN RENDERING JUDGMENT WHEN THE COMMISSION HAD NOT ISSUED A JUDGMENT BASED UPON ITS OWN FINDINGS OF FACT AND CONCLUSIONS OF LAW BUT RATHER AFFIRMED THE OPINION OF THE ADMINISTRATIVE JUDGE ON REMAND WHICH WAS NOT BASED ON SUBSTANTIAL EVIDENCE?

III. WAS THE DECISION OF THE ADMINISTRATIVE JUDGE ARBITRARY AND CAPRICIOUS?

IV. WAS MCDOWELL’S INJURY INCORRECTLY TREATED AS A SCHEDULED MEMBER CASE RATHER THAN AN IMPAIRMENT TO THE BODY AS A WHOLE?

¶ 8. The chief issue in this case is whether or not McDowell is eligible for permanent occupational disability benefits, or is instead limited to benefits based on a scheduled member injury as was found by the administrative law judge on remand and affirmed by both the Full Commission and the circuit court. We will combine McDowell’s first four issues into this chief issue, since they all relate directly to this question and whether or not the decisions of the administrative law judge, Full Commission, and circuit court were supported by substantial evidence.

¶ 9. The standard of review utilized by this Court when considering an appeal of a decision of the Workers’ Compensation Commission is well settled. The Mississippi Supreme Court has stated that “[t]he findings and order of the Workers’ Compensation Commission are binding on the Court so long as they are ‘supported by substantial evidence.’ ” Vance v. Twin River Homes, Inc., 641 So.2d 1176, 1180 (Miss.1994) (quoting Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988)). This Court will reverse only where a Commission order is clearly erroneous and contrary to the weight of the credible evidence. Vance, 641 So.2d at 1180; see also Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 12 (Miss.1994). “This Court will overturn a [C]ommission decision only for an error of law or an unsupportable finding of fact.” Georgia Pacific Corp. v. Taplin, 586 So.2d 823, 826 (Miss.1991). Therefore, this Court will not overturn a Commission decision unless it finds that the Commission’s decision was arbitrary and capricious. Id.

¶ 10. Although this Court is limited to a determination of whether the Commission’s findings of fact and order are supported by substantial evidence, the Commission in the case at hand did not present its own findings of fact but instead affirmed those made by the administrative law judge. Tommy Brooks Oil v. Leach, 722 So.2d 708, 711(¶ 10) (Miss.Ct.App.1998). Similar to Tommy Brooks Oil, we will instead examine the findings of fact made by the administrative law judge. Id. The administrative law judge is not the ultimate finder of fact, but rather “the individual who conducts the hearing and hears the live testimony.” Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1245 (Miss.1991). The Commission is free to accept or reject the administrative law judge’s findings, so long as the Commission’s actions are based on substantial evidence. Day-Brite Lighting v. Cummings, 419 So.2d 211, 213 (Miss.1982).

¶ 11. McDowell asserts that the administrative law judge, Full Commission, and the lower court misapprehended the law and denied him total occupational disability benefits as provided under § 71-3-17(a) of the Mississippi Code. McDowell argues that when an employee suffers an injury covered by the schedule in § 71-3-17(c) which covers permanent partial occupational disability, and where that injury results in a permanent loss of wage earning capacity within § 71-3-17(a), the latter section controls exclusively and the employee is not limited to the number of weeks of compensation in § 71-3-17(c). McDowell asserts that he proved his case by unimpeached and unrebutted evidence and is entitled to full compensation for 450 weeks.

¶ 12. According to § 71-3-17(a), benefits are due only “in case of total disability adjudged to be permanent.” Miss.Code Ann. § 71-3-17(a) (Rev.2000). “ ‘Disability’ means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment.” Miss. Code Ann. § 71—3—3(i) (Rev.2000). “Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two (2) thereof shall constitute permanent total disability.” Miss.Code Ann. § 71-3-17(a) (Rev.2000). The post-injury capacity to earn wages at other employment, even at a diminished level, is enough to defeat a claim for permanent total disability.

¶ 13. McDowell did not suffer a permanent and total occupational disability because he continued to work at a service station earning $200 per week. His reduced earnings were limited in part by a heart attack which was not work related and by his inability to find transportation. Although the Mississippi Supreme Court has held that an injury to a scheduled member may result in a finding of total permanent disability rather than only an injury to the body as a whole, the injury to the scheduled member must leave the worker unable to resume the same or other employment after he adapts to his disability. Smith v. Jackson Const. Co., 607 So.2d 1119, 1127-28 (Miss.1992).

¶ 14. McDowell’s injury was to his left foot, which under Miss.Code Ann. § 71-3-17(c)(4) is a scheduled member. McDowell asserts that the evidence shows that due to his injury, he is unable to return to his former employment as a laborer and is therefore entitled to compensation under § 71-3-17(a), as being totally occupationally disabled. In order to be considered for compensation under § 71-3-17(a), McDowell would have to demonstrate that his injuries when considered in the context of other relevant circumstances including, but not limited to, age, education level, and prior work experience, rendered him totally occupationally disabled from any form of gainful employment. Meridian Professional Baseball Club v. Jensen, 828 So.2d 740, 746(¶ 17) (Miss.2002). This is plainly not the case. McDowell asserts that he is entitled to the difference between his prior wages and his current diminished wage earning capacity and that this distinguishes his case from Jensen because Jensen could not prove diminished wage earning capacity. However, “the Workers’ Compensation Act ‘arbitrarily schedules the compensation payable for loss of or loss of use of a scheduled member, focusing upon a claimant’s functional loss and without regard to loss of wage earning capacity.’ ” Cook v. President Casino, 740 So.2d 968, 969(¶ 27) (Miss.1999) (quoting Smith v. Jackson Const. Co., 607 So.2d 1119, 1126 (Miss.1992)).

¶ 15. McDowell could have alleged that since he was unable to return to his former job and could not resume the principal duties of his usual employment he should be entitled to 100% industrial disability to his foot and the full 125 weeks’ compensation under § 71-3-17(c)(4), rather than the sixty-two and one half weeks allowed by the administrative law judge and affirmed by the Full Commission. The findings of fact by the administrative law judge, which were adopted by the Full Commission, considered other relevant factors including McDowell’s additional heart problems which were not work related and his lack of a driver’s license, and were supported by the substantial evidence. These factors were used in order to determine McDowell’s industrial disability to his foot of 50%. Lacking a showing that the Full Commission acted erroneously or contrary to the weight of the credible evidence, we must affirm. Vance, 641 So.2d at 1180.

V. WAS THE STIPULATION REGARDING MCDOWELL’S AVERAGE WEEKLY WAGE ERROR AND SHOULD IT BE SET ASIDE?

¶ 16. McDowell asserts that the stipulation to a weekly wage of $425 by his previous attorney was made negligently and is in error and should therefore be set aside. At the rehearing before the administrative law judge, McDowell through his current counsel offered into evidence a payroll stub dated eight days before his injury which showed an average weekly wage of $573.88, which the previous attorney had also been in possession of before stipulating to the lower amount. The administrative law judge sustained the employer/carrier’s objection to the admission of the payroll stub as evidence and found in the opinion that the loss of earning capacity was not an issue.

¶ 17. As the case at bar is controlled by § 71-3-17(c), the issue of loss of wage-earning capacity is moot. Miss.Code Ann. § 71-3-17(c) (Rev.2000). This issue is without merit.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY IS AFFIRMED. ALL COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING, MYERS AND CHANDLER, JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING.


author: IRVING, J.,

text:
    Nathaniel L. EDWARDS, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00151-COA.
    Court of Appeals of Mississippi.
    June 17, 2003.
    Rehearing Denied Sept. 2, 2003.
    Certiorari Dismissed Oct. 3, 2003.
    Certiorari Granted Dec. 4, 2003.

      Tommy Wayne Defer and David L. Walker, Batesville, attorneys for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, P.J., THOMAS, IRVING and CHANDLER, JJ.
   IRVING, J.,

for the Court.

¶ 1. A Tallahatchie County Circuit Court jury convicted Nathaniel Edwards of depraved heart murder. Edwards has appealed and presents several issues: (1) whether the trial court erred in denying his motion in limine to prevent the assistant district attorney from admitting or eliciting hearsay statements, (2) whether the trial court erred in denying his motion for a mistrial after the assistant district attorney elicited testimony concerning drugs during the testimony of a witness, (3) whether the trial court erred in failing to sustain his motion for a mistrial after a juror stated in open court that Edwards was housed in a correctional facility at which she was employed, (4) whether the trial court erred in denying his motion to suppress a certain statement and clothing seized by the police, (5) whether the trial court erred in overruling his objection to a witness’ testimony about statistical data concerning the DNA evidence, and (6) whether the trial court erred in refusing two of his instructions.

¶ 2. Finding error but no reversible error on the first issue and no error on any subsequent issues, we affirm.

FACTS

¶ 3. Nathaniel Edwards, Sr. (the victim) was the eighty-nine-year-old father of Nathaniel Edwards, Jr. (Edwards). Since 1998, Edwards had resided with the victim.

¶ 4. On January 5, 2001, the victim went to visit Carey Hayes to request his assistance in evicting Edwards from the victim’s house. Hayes was the victim’s neighbor and a deputy police officer for Tallahatchie County. Agitated at the time, the victim told Hayes that Edwards intended to hit the victim in the head and take the victim’s money. When the two men arrived at the victim’s house, they found Edwards lying on the sofa inebriated. Hayes told Edwards to leave the victim’s house. Edwards retorted that he had no money, no place to go, and no one with whom to stay. The victim soon changed his mind and agreed that Edwards could stay in a back room of his house. Hayes escorted Edwards to bed, reassured the victim that the situation was under control, and went back to his house.

¶ 5. On the next morning, a concerned neighbor called the Tutwiler Police Department to investigate the victim’s whereabouts. Officer Gregory Buchanan responded by going to the victim’s home; there, he found the victim’s lacerated dead body on a bed. Buchanan then called the Mississippi Criminal Investigative Bureau for assistance. Investigator Chuck Poe responded and joined Officer Buchanan at the victim’s home to assist in the investigation. After the officers had spent several hours of investigation at the victim’s home, Edwards was escorted to the Tutwiler Police Department for questioning.

¶ 6. Upon Edward’s arrival at the police station, he was read his rights, and Officer Poe asked him if he would relinquish his clothes to the police department for analysis. Edwards complied. After the officers questioned Edwards thoroughly, he was allowed to leave the police station. However, approximately an hour later, Edwards returned and told Officer Doyle Moore, who was on patrol a short distance from the police station, that he wanted to confess to the killing of the victim. Officer Moore instructed Edwards not to say anything further and took Edwards to the Tutwiler Police Station.

¶ 7. After Doyle and Edwards arrived at the station, Doyle called Officer Buchanan and informed him of the situation. Officer Buchanan, who had left the station, returned to the station. When Officer Buchanan arrived back at the station, Edwards told him that Edwards wanted to confess to the killing of Edwards’s father. Officer Buchanan read Edwards’s Miranda rights to him, and Edwards signed a waiver of rights form. Edwards then gave a statement concerning the killing of his father. In his statement, Edwards wrote, “I want to admit to killing my father in his home yesterday. Exactly how I did it is not very clear in my mind, but it is the truth.” Edwards was then handcuffed and transported to jail. Upon his arrival at the jail, Edwards, before several officers and a jailer, again admitted to killing his father.

¶ 8. Edwards was subsequently indicted by a grand jury for depraved heart murder. After the conclusion of a three-day trial, Edwards was convicted of the charge and sentenced, as a habitual offender, to a term of life in prison in the custody of the Mississippi Department of Corrections.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Denial of Motion in Limine

¶ 9. Edwards first complains that the trial court erred when it denied his motion in limine which sought to prevent the State from admitting or eliciting certain hearsay testimony during Edwards’s trial. According to Edwards, admission of the hearsay testimony abridged his constitutional right to confront and cross-examine witnesses.

¶ 10. The hearsay of which Edwards complains concerns a statement allegedly made by the victim to Tallahatchie County Deputy Sheriff Carey Hayes. During his testimony, Hayes explained that when the victim asked for his assistance in removing Edwards from his home, the victim stated, “I want you to come get my son out of the house because he is going to hit me in the head and take my money.”

¶ 11. The trial court held a pretrial hearing and ruled that the statement would be admissible under Rule 803(3) of the Mississippi Rules of Evidence. Consequently, the court permitted Hayes to testify during the trial about the victim’s statement.

¶ 12. “Under this Court’s standard of review, the admissibility of evidence rests within the trial court’s discretion. Unless [its] judicial discretion is abused, this Court will not reverse [its] ruling.” Crawford v. State, 754 So.2d 1211, 1215 (¶ 7) (Miss.2000).

¶ 13. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. M.R.E. 801(c). Hearsay is not admissible except as provided by law. M.R.E. 802.

¶ 14. A hearsay statement may be admitted to prove a declarant’s existing mental, emotional or physical condition. M.R.E. 803(3). However, a declarant’s statement of memory or belief to prove the fact remembered or believed is not admissible unless it relates to the execution, revocation, identification, or terms of the declarant’s will. Id.

¶ 15. We find that the lower court erred in admitting the hearsay statement under subsection three of Rule 803. The statement did not pertain to the declarant’s then existing state of mind, emotion, sensation, or physical condition, and even if it did, the victim’s then existing state of mind, emotion, etc. was irrelevant. To the contrary, the statement is a statement of belief to prove a fact believed by the victim but does not relate to the execution, revocation, identification, or terms of the victim’s will. Thus, Rule 803(3) is not a viable avenue for admission of the hearsay statement.

¶ 16. The State argues that if we find that the trial court erred in admitting the statement under Rule 803(3), we should find that the statement was admissible under Rule 803(1) or (2), the present sense impression and excited utterance exceptions to the hearsay rule. Both of these exceptions involve statements made in relationship to the occurrence of an event. Our review of the record leaves some doubt as to the occurrence of a predicate event. Therefore, we pretermit the issue of what exception, if any, would permit admission of the statement and find that admission of the statement was harmless error since the properly admitted evidence, as will be discussed further in this opinion, is more than sufficient to support the jury’s verdict.

2. Motions for Mistrial

¶ 17. Edwards next argues that the trial court erred when it failed to grant him a mistrial after the assistant district attorney elicited testimony from a witness concerning Edwards’s alleged drug use. During his cross-examination of a witness, the assistant district attorney asked her whether Edwards had been smoking crack cocaine at her mother’s house. Edwards objected on the basis that the elicited testimony touched upon evidence of other crimes and was highly prejudicial. He also moved for a mistrial. The trial court ruled that this line of questioning was improper and admonished the assistant district attorney for asking a question that he knew was improper. The trial court then told the jury to disregard the question. The question was never answered.

¶ 18. Edwards also contends that the trial court erred by denying his motion for mistrial after a juror, during the State’s voir dire, gave the following unresponsive answer to a question by the prosecutor: “First of all ... he [Edwards] is housed at the facility where I work, Tallahatchie County Correctional Facility.” The prosecutor had inquired whether any of the jurors were affiliated with law enforcement. The prosecutor asked a few additional questions before Edwards moved for a mistrial. The trial court denied this motion and advised all members of the venire to listen to the questions and respond to the questions given to them.

¶ 19. Our standard of review of the trial court’s decision whether to grant a mistrial is abuse of discretion:

Case law unequivocally holds that the trial judge is in the best position for determining the prejudicial effect of an objectionable remark. The judge is provided considerable discretion to determine whether the remark is so prejudicial that a mistrial should be declared. Where serious and irreparable damage has not resulted, the judge should admonish the jury then and there to disregard the impropriety.

Coho Resources, Inc. v. McCarthy, 829 So.2d 1, 18 (¶ 50) (Miss.2002) (citing Roundtree v. State, 568 So.2d 1173, 1177-78 (Miss.1990)). The standard of review is the same for a denial of a motion for mistrial based upon potentially prejudicial voir dire statements of potential jurors. Grayson v. State, 806 So.2d 241, 252-253 (¶ 29) (Miss.2001) (citing Evans v. State, 725 So.2d 613, 651 (Miss.1997)).

¶ 20. The rule is well established in the jurisprudence of our state that the jury is presumed to follow an admonition of the trial court to disregard objectionable evidence and that the court’s admonition is usually deemed sufficient to remove any prejudicial effect from the minds of the jurors. The jury is presumed to have followed the directions of the trial judge. Walker v. State, 671 So.2d 581, 621-22 (Miss.1995).

¶ 21. We find that any harm done by the assistant district attorney when he asked the improper question was minimal and was cured by the lower court’s instruction to the jury to disregard the question. Therefore, the trial court did not abuse its discretion in denying the motion for mistrial. Likewise, we find that the trial court did not err in not affording any relief when the juror gave the non-responsive response that Edwards was in jail while awaiting trial. The juror’s statement did not indicate or otherwise disclose any information about why or on what charge Edwards was being incarcerated. As the State argues, potential jurors know that criminal defendants are sometimes jailed before trial. Although the trial court did not specifically rule on Edwards’s somewhat tardy motion for a mistrial following the juror’s comments, its failure to grant any relief was tantamount to an adverse ruling. The trial court is in the best position to make this assessment. See McCarthy, 829 So.2d at 18(¶ 50). We therefore, find that the trial court did not abuse its discretion in making the assessment and not granting any relief by way of a mistrial.

3. Motion to Suppress Incriminating Statement

¶ 22. Edwards next argues that the trial court erred when it denied his motion to suppress the statement that he had given to the police on January 6, 2001. Edwards explains that he did not freely and voluntarily confess to law enforcement officers the night of January 6, 2001; therefore, the trial court committed reversible error in admitting his confessions at trial.

¶ 23. Edwards gave the following written statement to Officer Gregory Buchanan of the Tutwiler Police Department: “I want to admit to killing my father in his home yesterday. Exactly how I did it is not very clear in my mind, but it is the truth.” Also, while being booked and processed, Edwards advised Officers Buchanan, Johnson, and Moore that he took his father’s life. The trial court ruled that Edwards gave the confessions freely and voluntarily.

¶ 24. The general rule is that for a confession to be admissible it must have been given voluntarily and not given because of promises, threats or inducements. Horne v. State, 825 So.2d 627, 639 (¶ 43) (Miss.2002). “[T]he prosecution shoulders the burden of proving beyond a reasonable doubt that the confession was voluntary.” Id. This “burden is met and a prima facie case made out by testimony of an officer, or other persons having knowledge of the facts, that the confession was voluntarily made without threats, coercion, or offer of reward.” Id. Once the trial court has determined that a confession is admissible, the defendant has a heavy burden in attempting to reverse that decision on appeal. Greenlee v. State, 725 So.2d 816, 826 (¶ 26) (Miss.1998).

¶25. Our review of the trial court’s decision is limited. A determination that a confession is admissible is a finding of fact which is not disturbed on appeal unless the trial judge applied an incorrect legal standard, committed manifest error, or the decision was contrary to the overwhelming weight of the evidence. Hicks v. State, 812 So.2d 179, 191 (¶ 32) (Miss.2002).

¶ 26. Edwards argues that he “did not freely, knowingly, voluntarily and intelligently give confessions to law enforcement officers on January 6, 2001,” because “he was in need of medical attention and was intoxicated at the time of his confessions.” These assertions by Edwards have no merit.

¶ 27. First, there exists no corroborative evidence that Edwards’s confessions were the result of bargained-for medical treatment which Edwards had requested from the police. Second, there exists no corroborative evidence that Edwards was inebriated to the extent that he was unaware of what he was doing when he gave his confessions. Edwards presented no evidence that he had consumed an amount of alcohol sufficient to render him unable to give the police a voluntary confession. Edwards testified concerning the quantity of alcohol that he said he drank on the day before he gave his confessions. Edwards also testified that he had drunk a can of beer earlier on the day of his confessions. However, neither side presented any evidence concerning whether Edwards drank any alcohol, and if so, how much, during the period of time after he left the police station following the initial interrogation and his return to the station when he gave his confession. The only evidence which suggests that Edwards may have consumed some alcohol during this time frame is the testimony by each of the officers that Edwards smelled like alcohol. However, all of the officers confirmed that Edwards demonstrated sober judgment when he gave his confession. Moreover, the smell of alcohol, in and of itself, does not warrant a finding that Edwards’s waiver of his Miranda rights and the resulting confession were both involuntary. See Living v. State, 796 So.2d 1121 (Ala.Crim.App.2000); White v. State, 699 N.E.2d 630 (Ind.1998).

¶ 28. There is no evidence that any sort of promises, threats or inducements were made by the State to Edwards in exchange for his confession. Moreover, the evidence clearly demonstrates that Edwards’s confession was a product of his own design. The record indicates that Edwards was taken in by police for questioning on April 6, 2001, at approximately four o’clock in the afternoon. He was not in custody and was free to leave at any time he wished. Edwards left the police station at approximately 10:30 that evening. About an hour later, Edwards returned to the police station, walked to Officer Doyle Moore’s car on his own accord, and announced he wished to confess that he had killed his father. Doyle immediately contacted Gregory Buchanan, the chief investigator for the case. Upon Buchanan’s arrival, the officers read Edwards his Miranda rights; Edwards signed a waiver of rights form and gave the statements that he contends were improperly admitted into evidence.

¶ 29. We find no abuse of discretion on the part of the trial court in finding that Edwards’s confessions were freely and voluntarily given. This issue is wholly without merit.

¶ 30. Edwards next contends that the trial court erred when it denied his motion to suppress evidence resulting from the seizure of his clothing. The clothing at issue, according to Edwards, involved garments that he had been wearing two to three days before his interrogation on January 6, 2001. The State confiscated Edwards’s clothing after discovering a questionable red stain on the left pocket of a blue shirt. The State’s seizure of Edwards’s clothes was executed through a warrantless search by Investigator Chuck Poe of the Mississippi Criminal Investigative Bureau after, according to the State’s proof, the State had obtained Edwards’s voluntary consent to search.

¶ 31. After the trial court heard testimony from both Edwards and Investigator Poe, it denied Edwards’s motion to suppress the clothing. The court found that Edwards voluntarily consented to the search by Poe.

¶ 32. “When the prosecution attempts to justify a search on the basis of consent, it must demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion.” Jackson v. State, 418 So.2d 827, 830 (Miss.1982) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). “Such voluntariness is to be determined from considering the totality of the circumstances surrounding the alleged consent.” Id. In determining the volun-tariness of a defendant’s consent to search, courts must assess whether the defendant was immature and impressionable or experienced and well-educated and whether the defendant was in an excited emotional state, mentally incompetent, or under the influence of drugs or alcohol at the time of the purported consent. Jones v. State ex rel. Mississippi Dept. of Public Safety, 607 So.2d 23, 27 (Miss.1991).

¶ 33. The trial court’s finding that Edwards gave his consent for the seizure of his clothes is well supported in the record. During Edwards’s interview at the police station, Poe asked him whether he would surrender his clothing to the investigators. This request occurred on the evening of January 6, 2001, the day the victim’s body was found. Edwards agreed to relinquish his clothing. During the pretrial hearing, Poe testified about Edwards’s consent:

Q: Did you ever ask Mr. Edwards if he would consent to taking his clothes off so you could seize those and have those tested for the substance you just described?
A: Yes, I did.
Q: All right. Did you have a search warrant to do that or was that a warrantless search?
A: That was a consent from Mr. Edwards.
Q: A consent to search by Mr. Edwards?
A: Yes, sir.

Through his testimony, Edwards also confirmed his willingness to relinquish his clothes to the State:

Q: And, he [Investigator Poe] asked you if you could take off those clothes and if he could have them so that they could do an analysis of them, check them for blood and fluids and that kind of stuff; right?
A: Yes.
Q: And, you gave them to him.
A: Yes, I did.
Q: And, you didn’t have any problem with that; right?
A: I didn’t have any problem with it because I asked them to go by my father’s house and get more clothes that I could put on and at that time he said he would.

¶ 34. Further, the evidence demonstrates that Edwards’s ability to consent to the search and seizure was not negated by intoxication. When Poe was asked about Edwards’s physical demeanor during the interrogation of Edwards, Poe stated, “He seemed to be comprehending everything I was telling him or asking him, no physical signs of impairment as far as alcohol or drugs, and he seemed to be answering questions as I asked him.” Moreover, by his own testimony, Edwards confirmed that he had only had one can of beer early that morning before his interrogation. He stated that he did not drink any more alcohol between the time his father’s body was found, which was approximately 10:30 in the morning, and the time of his interview and search at the police station, which was at about 4:30 in the afternoon. Therefore, Edwards’s contention under this assignment of error lacks merit.

Jp. Admission of Statistical Data Concerning DNA Evidence

¶35. Next, Edwards asserts that the trial court erred when it overruled his objection to the testimony of witness Chris Larsen regarding statistical data of the DNA evidence. This statistical data concerned the probability of whether the deceased was the source of the blood found on Edwards’s clothing. Edwards further argues that the trial court’s error denied him “his right under the Sixth and Fourteenth Amendments of the United States Constitution and Article III, Section 26 of the Mississippi Constitution of 1890 to confront and cross-examine witnesses against him.”

¶ 36. The State called Larsen, a molecular biologist, to the witness stand. He was qualified, without objection from Edwards, as an expert witness in “molecular biology and forensic DNA analysis.” Larsen explained the logistics of DNA testing, his handling of the DNA samples in this case, his findings from the tests that he conducted, and the probability of the genetic matching between the sample of the deceased and the stains from Edwards’s clothing. When testifying about the statistical probability of the DNA match, Edwards objected on the ground that Larsen was not a statistician, and thus not qualified to testify about statistical results. Larsen did not make the statistical calculations in the case-at-bar of which he was testifying.

¶ 37. The trial court has discretion in determining whether an expert is qualified to testify. Baldwin v. State, 757 So.2d 227, 230(¶ 11) (Miss.2000) (citing Hall v. State, 611 So.2d 915, 918 (Miss.1992); Goodson v. State, 566 So.2d 1142, 1145 (Miss.1990)). This Court should not reverse the trial court’s ruling unless it can be shown that the trial judge abused his discretion or that the expert was clearly not qualified. Baldwin, 757 So.2d at 230-231(¶ 11) (citing Genry v. State, 735 So.2d 186, 198 (Miss.1999)).

¶ 38. In Hull v. State, 687 So.2d 708, 728 (Miss.1996), our supreme court addressed the issue of admissibility of statistical probabilities in DNA evidence. The Hull court held:

If the witness can put the meaningfulness of a match in terms of strong or weak, then it is unreasonable to prevent the parties from putting on statistical evidence to show how strong or how weak the evidence is. Without this evidence, the ability of the jury to use this evidence may be diminished to such a degree as to be unhelpful to the trier of fact under Rule 703, or more prejudicial in that a jury may think it needs no evidence other than the “conclusion” that the defendant’s DNA was found upon the victim’s person. Accordingly, we hold that where the trial court finds that evidence of a DNA match is admissible as relevant, the court should also allow scientific statistical evidence which shows the frequency with which the match might occur in a given population.

¶ 39. While acknowledging and conceding to the relevancy of this case law, Edwards attempts to draw an analogy between the case sub judice and Crisp v. Town of Hatley, 796 So.2d 233 (Miss.2001), to demonstrate that the trial court erred when it admitted Larsen’s testimony. In Crisp, a drug prosecution case, the supreme court held that the admission into evidence of a certificate of analysis as to the substance found in the defendant’s truck, based solely on the testimony of the arresting officer, and without the testimony of the analyst who performed the tests, violated the defendant’s constitutionally-guaranteed right to confront and cross-examine witnesses against him. Id. at 235 (¶11).

¶ 40. We find that the case sub judice is clearly distinguishable from Crisp. The witness in the case-at-bar did not give hearsay testimony to prove an ultimate fact. In Crisp, the ultimate fact to be proven was that the substance was in fact marijuana. Id. at 234(¶ 1). Proof of this ultimate fact was made by a person who did not himself perform the tests that revealed the nature of the substance. Id. at 234(¶ 3). The Court consequently found a violation of the defendant’s right of confrontation because the defendant in Crisp had no means of testing, through cross-examination, the competency and accuracy of the testing procedures used to arrive at the ultimate conclusion — that the substance was in fact marijuana. Id. at 235 (¶¶ 8-9).

¶ 41. In the case-at-bar, we have a very different situation. Larsen, the scientist who made the determination that there was a match between the blood stains and the sample, did testify. While Larsen himself did not work out the probability of incidence after he determined that a match existed, the statistical information of which Larsen testified was a mathematical consequence of the scientific test results that Larsen himself had performed. Moreover, Larsen, who testified to having conducted such statistics in the past, was competent to testify how the statistical results were arrived. Also, Edwards did confront Larsen through cross-examination and had a sufficient opportunity to challenge both the DNA comparison process and Larsen’s knowledge of the statistical compilations. We find that the trial court committed no error in admitting Larsen’s testimony concerning the statistical frequency of the DNA found in the blood stain samples.

¶ 42. Moreover, Edwards’s claim, that the trial court violated his right to confront a witness, was made for the first time on appeal. “Unless timely and specific objection is made to allegedly improper testimony, the objection is deemed waived and may not be raised on appeal.” Cavett v. State, 717 So.2d 722, 726(¶21) (Miss.1998) (citing Hall v. State, 691 So.2d 415, 418 (Miss.1997)). We find that Edwards’s second ground for objecting to Larsen’s testimony is waived.

5. The Refusal of Jury Instruction D-1 andD-5

¶ 43. In his final assignment of error, Edwards argues that the trial court erred when it denied both his request for a peremptory instruction and his request for an instruction on manslaughter.

¶ 44. The standard of review for challenges to jury instructions is as follows:

Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.

Humphrey v. State, 759 So.2d 368, 380(¶ 33) (Miss.2000) (citing Heidel v. State, 587 So.2d 835, 842 (Miss.1991)).

¶ 45. A review of Edwards’s discussion in support of his assignment of error clearly demonstrates that Edwards presented no argument in support of the claim that the trial court erroneously denied his peremptory instruction. It is the appellant’s duty to provide authority and support for the issues he presents. Rigby v. State, 826 So.2d 694, 707(¶44) (Miss.2002) (citing Hoops v. State, 681 So.2d 521, 526 (Miss.1996)). Issues of error which are unsupported by citation or authority are considered abandoned. Id. Failure to cite relevant authority obviates the appellate court’s obligation to review such issues. Simmons v. State, 805 So.2d 452, 487(¶ 90) (Miss.2001) (citing Williams v. State, 708 So.2d 1358, 1362-63 (Miss.1998)). Therefore, we need not address this contention.

¶46. We next address Edwards’s argument concerning the denial of his manslaughter instruction. A lesser-included-offense instruction should be given if there is an evidentiary basis in the record that would permit a rational jury to find the defendant guilty of the lesser-included offense and to acquit him of the greater offense. Drake v. State, 800 So.2d 508, 518(¶40) (Miss.2001) (citing Underwood v. State, 708 So.2d 18, 36 (Miss.1998)). The lesser-included-offense instruction should be granted unless the trial court, and ultimately this Court, can say, viewing the evidence in the light most favorable to the defendant and considering all the reasonable inferences which may be drawn in favor of the defendant from the evidence, that no reasonable jury could find the defendant guilty of a lesser-included offense. Id.

¶ 47. Edwards, as he did in the trial court, advances two reasons why the manslaughter instruction should have been given. First, he asserts that “heat of passion” is shown because the evidence demonstrated that the victim was struck multiple times. Second, he explains that the large disparity between the sentences for murder and manslaughter necessitates an instruction on manslaughter.

¶ 48. We do not find a scintilla of evidence which suggests Edwards was acting in the “heat of passion.” The only evidence in the record which attempts to explain the victim’s death is the testimony of Carey Hayes. According to Hayes, the decedent explained to him that Edwards wanted the decedent’s money and intended to beat him to get it. However, this testimony only demonstrates, if anything, motive or intent of Edwards and not provocation. Moreover, in Edwards’s confession, he stated, “I want to admit to killing my father in his home yesterday. Exactly how I did it is not very clear in my mind but it is the truth.” There is no indication or assertion by Edwards of provocation in his confession. We find nothing in the record to support the theory that the killing occurred in the heat of passion. Jury instructions are to be granted only where evidence has been presented which supports the instruction. Jackson v. State, 815 So.2d 1196, 1200(¶ 7) (Miss.2002). We therefore find that there exists no eviden-tiary basis in the record that would permit a reasonable juror to find Edwards guilty of the lesser-included offense of manslaughter. We therefore do not find any merit in Edwards’s argument that he was entitled to a manslaughter instruction.

¶ 49. THE JUDGMENT OF THE CIRCUIT COURT OF TALLAHATCHIE COUNTY OF CONVICTION OF DEPRAVED HEART MURDER AND SENTENCE OF LIFE IMPRISONMENT AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO TALLAHAT-CHIE COUNTY.

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


author: BRIDGES, J.,

text:
    KING’S DAUGHTERS AND SONS CIRCLE NUMBER TWO OF GREENVILLE, Mississippi, A Mississippi Nonprofit Corporation, Appellant, v. DELTA REGIONAL MEDICAL CENTER; Emery Skelton, Chairman, Joe Patterson, George C. Bell, Anne Stark, Benjamin P. Folk, III, M.D., George E. Lewis, Stan Ingram, Members of The Board of Trustees of Delta Regional Medical In Their Representative Capacities as Such Trustees; and John Doe 1 and 2, Appellees.
    No. 2001-CA-01960-COA.
    Court of Appeals of Mississippi.
    June 17, 2003.
    Rehearing Denied Sept. 2, 2003.
    Certiorari Granted Oct. 13, 2003.

      Nathan P. Adams, Philip Mansour, Greenville, attorneys for appellant.
    Clifford C. Whitney, R.E. Parker, Vicksburg, attorneys for appellee.
    Before SOUTHWICK, P.J., BRIDGES and CHANDLER, JJ.
   BRIDGES, J.,

for the Court.

¶ 1. The King’s Daughters and Sons Circle Number Two filed a complaint alleging that Delta Regional Medical Center, its chairman, and members of the board of trustees of Delta Regional Medical Center in their representative capacities as trustees, committed the tort of intentional interference with contract and intentional interference with prospective business relations. Initially, Delta Regional filed a motion for summary judgment based on lack of proper notice under the Mississippi Tort Claims Act, Miss.Code Ann. § 11-46-11. It subsequently filed a supplemental motion for summary judgment, which raised the issues upon which the trial court granted summary judgment, that there was no genuine issue regarding the fact that Delta Regional acted to protect its legitimate interest by preventing a potential conflict of interest that would have resulted if Health Group purchased King’s Daughters. The trial court never reached the notice issue raised in the initial motion. King’s Daughters now appeals to this Court.

STATEMENT OF THE ISSUES

I. WHETHER THE TRIAL COURT MISAPPLIED MISSISSIPPI LAW IN TREATING QUORUM HEALTH GROUP, INC. AND ITS SUBSIDIARY QUORUM HEALTH RESOURCES, INC. AS ONE IDENTITY.

II. WHETHER THE TRIAL COURT ERRED IN HOLDING THAT THERE WAS NO GENUINE ISSUE OF MATERIAL FACT THAT DELTA REGIONAL ACTED TO PROTECT ITS LEGITIMATE INTEREST BY PREVENTING A POTENTIAL CONFLICT OF INTEREST THAT WOULD HAVE RESULTED IF QUORUM HEALTH GROUP, INC. PURCHASED KING’S DAUGHTERS HOSPITAL.

III. WHETHER THE CIRCUIT COURT ERRED AND MISAPPLIED MISSISSIPPI LAW IN HOLDING THAT NO GENUINE ISSUE OF MATERIAL FACT EXISTED THAT DELTA REGIONAL HAD “CONTRACTUAL RIGHTS” WITH QUORUM HEALTH RESOURCES INC. “RESOURCES” WHICH CAUSED THE ACTIONS OF INTERFERENCE BY DELTA REGIONAL WITH NEGOTIATIONS BETWEEN QUORUM AND KING’S DAUGHTERS TO BE PRIVILEGED.

FACTS

¶ 2. The King’s Daughters and Sons Circle Number Two owned The King’s Daughters Hospital (King’s Daughters), in Greenville, Mississippi. Delta Regional Medical Center (Delta Regional) owned the only other hospital and health care facility in Washington County, Mississippi. Delta Regional is a community hospital under Miss.Code Ann. § 41-13-15 (Rev. 2001) and is administered by a board of trustees pursuant to Miss.Code Ann. §§ 41-13-29, 41-13-35 (Rev.2001). The individual defendants in this case were members of the board of trustees of Delta Regional.

¶ 3. Other key figures in this case include, Quorum Health Resources, LLC, formerly Quorum Health Resources, Inc. (Resources), and Quorum Health Group, Inc. (Health Group). (We will refer to the two companies collectively as Quorum). Health Group is a national hospital company, and Resources is its wholly owned subsidiary engaged in the hospital management business. Resources managed Delta Regional, pursuant to a management contract, during the time frame at issue in this case. Evidence in the record indicates that members of the Delta Regional Board of Trustees did not understand there to be any distinction between Health Group and Resources. The record also indicated that the board of trustees considered that “Quorum was Quorum,” and that their hospital was a client of “Quorum,” whether under the name Quorum Resources or Quorum Health Group. During his deposition, even Health Group’s senior vice-president failed to differentiate between the two Quorums.

¶ 4. In an informal meeting on May 22, 1998, Resources and Health Group personnel met with three members of Delta Regional’s board of trustees. Quorum requested the meeting with Delta Regional to explore the possibility of Delta Regional being for sale. Delta Regional informed Quorum that it was not for sale. However, Roland Richardson, Health Group’s senior vice-president, testified that Emory Skel-ton, a member of the board of trustees for Delta Regional, casually mentioned to him that King’s Daughters might be for sale. There was testimony in the record that indicates that any statement made by Skelton was an offhanded remark, which Health Group did not take to be an authorization to purchase King’s Daughters.

¶ 5. Although Quorum signed a confidentiality agreement with Delta Regional, Quorum, nevertheless, failed to inform them of any planned purchase by Health Group of King’s Daughters Hospital. An article, appearing in the Delta Democrat Times, a newspaper published in Green-ville, Washington County, Mississippi, announcing that Health Group and King’s Daughters had signed a letter of intent effective December 15, 1998, was Delta Regional’s first notice of the possibility of Health Group purchasing King’s Daughters. The letter of intent was a statement of intention by Health Group to purchase King’s Daughters Hospital, provided that certain conditions were met.

¶ 6. Executives of Health Group admitted that there were critical items of the purchase and sale of King’s Daughters that remained to be resolved after the execution of the letter of intent; the purchase price being one of the critical items. Health Group did not know what the final purchase price would be, given that the price was to be determined by what Health Group found during its due diligence, required according to Section 14 of the letter of intent. Health Group never completed its due diligence to the degree necessary to determine the purchase price.

¶ 7. On December 21, 1998, after learning of the letter of intent, Delta Regional held a board of trustees meeting to discuss the matter. Representatives from Quorum were also present at the meeting. One of the discussions, which was recorded in the minutes, included Quorum telling Delta Regional’s board of trustees that “Quorum still had to do its due diligence regarding King’s Daughters Hospital and therefore the acquisition of King’s Daughters might not be consummated.” The minutes also reflect that Carl Hagwood, Delta Regional’s counsel, advised the board that it would be a violation of Quorum’s fiduciary duties and would give rise to a damage claim by Delta Regional for Health Group to purchase King’s Daughters. He continued by stating that “as a result of Quorum’s contractual duty to manage the hospital and the longstanding relationship between Quorum and the board that Quorum had access to all information regarding the strengths and weaknesses of the hospital, the hospital’s financial position, the hospital’s short term and long term strategic plans, and the hospital’s plans to respond to competition from a proprietary acquisition of the King’s Daughters Hospital.” The board voted to demand compensation from Quorum for the damage to Delta Regional from its conflict of interest.

¶ 8. Two days later, on December 23, 1998, Carl Hagwood wrote to Heath Group demanding money damages for the injury to Delta Regional resulting from the acquisition by Health Group of King’s Daughters. Following the letter sent on December 23, numerous communications were sent between Quorum and Delta Regional which resulted in an unsuccessful attempt to reach a resolution of the Quorum conflict of interest.

¶ 9. Finally, in a letter dated February 4, 1999, Health Group advised King’s Daughters of its intention to terminate the letter of intent. The letter stated that the reason for the termination was due to failure of the condition in Section 8(b), requiring approval by relevant regulatory authorities. Health Group was of the opinion that such approval was not possible, given Delta Regional’s refusal to permit Quorum to terminate its relationship with Delta Regional. King’s Daughters filed suit, after purporting to give notice to Delta Regional under the Tort Claims Act, Miss. Code Ann. § 11-46-11.

ANALYSIS

I. WHETHER THE TRIAL COURT MISAPPLIED MISSISSIPPI LAW IN TREATING QUORUM HEALTH GROUP, INC. AND ITS SUBSIDIARY QUORUM HEALTH RESOURCES, INC. AS ONE IDENTITY.

¶ 10. When reviewing a lower court’s decision to grant or deny a summary judgment motion, it is proper to employ a de novo standard of review. Hudson v. Courtesy Motors, 794 So.2d 999, 1002 ¶ 7 (Miss.2001) (citing Russell v. Orr, 700 So.2d 619, 622 (Miss.1997)).

¶ 11. King’s Daughters argues that the trial court erred when it treated Health Group and Resources as one and the same. It goes on to state that piercing the corporate veil should be done with great caution and that nothing in the record supported the proposition that any factors or indicia normally present for piercing the corporate veil were present (i.e., parent and subsidiary corporations have common directors or officers, parent corporation finances the subsidiary, etc.). King’s Daughters argues that Health Group and Resources were separate corporations and only Resources had a contract with Delta Regional. Therefore, Health Group — in contrast to Resources — owed no duty to Delta Regional and could not legally have had a conflict of interest with Delta Regional.

¶ 12. First and foremost, both Health Group and King’s Daughters clearly believed that there were significant conflicts of interest in the Quorum purchase of King’s Daughters. In fact, section 4(j) in the letter of intent explicitly states: “Buyer [Quorum] will use reasonable efforts to eliminate conflicts of interest with Delta Regional Medical Center upon completion of the acquisition of King’s Daughter’s Hospital and further Buyer will defend, indemnify and hold harmless the Seller from any and all claims and/or actions or judgments resulting therefrom.” King’s Daughters admitted that it was the one to ask for the addition to section 4(j) to include the part about the buyer defending, indemnifying, and holding harmless the seller from any and all claims, etc.

¶ 13. Secondly, in order to prove tortious interference with a contract, a plaintiff must normally show these elements: (1) the acts were intentional and willful; (2) that they were calculated to cause damages to the plaintiffs in their lawful business; (3) that they were done with the unlawful purpose of causing damage and loss, without right or justifiable cause on the part of the defendant (which constitutes malice); and (4) that actual damage and loss resulted. Irby v. Citizens Nat’l Bank of Meridian, 239 Miss. 64, 121 So.2d 118, 119 (1960) (parenthetical in original); also see Par Industries, Inc. v. Target Container Co., 708 So.2d 44, 48(¶ 8) (Miss.1998). An interference is not wrongful and actionable if undertaken by someone in the exercise of a legitimate interest or right which constitutes “privileged interference.” Vestal v. Oden, 500 So.2d 954, 957 (Miss.1986) (quoting Martin v. Texaco, Inc., 304 F.Supp. 498, 502-04 (S.D.Miss.1969)). Furthermore, in Pennsylvania, the plaintiff bears the burden of proving the lack of a lawful objective on the part of the defendant. Barlow v. Brunswick Corp., 311 F.Supp. 209, 212 (E.D.Pa.1970) (Pennsylvania law is identical to Mississippi’s law of tortious interference).

¶ 14. In the present case, the trial court held that Delta Regional was indisputably acting in furtherance of its own legitimate economic interests in opposing the Health Group’s acquisition of King’s Daughters. In his order, the trial judge stated that the actions of Delta Regional through its board of trustees and its attorney merely sought to protect the interests of Delta Regional in its own contractual relationship with its manager, Resources. The trial judge further stated that Delta Regional “had contractual rights which it believed to be in jeopardy by the negotiations between Quorum and King’s Daughters.”

¶ 15. The record reflects that Delta Regional’s board members did not understand there to be a significant distinction between the two Quorums. The record also illustrates that the board did not understand the legal niceties of corporate veils, but they merely believed that Delta Regional faced imminent and potentially damaging competition from the corporate group of which Delta Regional’s management company was a part. The Delta Regional board minutes reflect that the board demanded damages from Health Group only after being advised by its attorney, Carl Hagwood, that the transaction violated Health Group’s fiduciary duties. Therefore, this Court finds that Delta Regional acted in good faith and is justified because of its honest belief that Health Group owed it a duty not to purchase King’s Daughters.

¶ 16. Finally, Resources was an agent of Delta Regional for the management and operation of the hospital. The management agreement between Resources and Delta Regional specifically provides that Resources is the agent and Delta Regional is the principal. Resources stood in the shoes of and was the alter ego of the board of trustees, as far as management of the day-to-day operations of Delta Regional was concerned. First Jackson Securities Corp. v. B.F. Goodrich Co., 253 Miss. 519, 176 So.2d 272, 278 (1965).

¶ 17. Under Mississippi law, the agent’s relationship with his principal is a fiduciary relationship. Costello v. Hall, 506 So.2d 293, 297 (Miss.1987). The Mississippi Supreme Court, quoting 3 C.J.S., Agency § 142, described this relationship as follows:

The relationship of principal and agent, being confidential and fiduciary in character, demands of the agent the upmost loyalty and good faith to his principal. Any breach of this good faith whereby the principal suffers any disadvantage and the agent reaps any benefit is a fraud for which the agent will be held accountable, either in damages or by judgment precluding the agent from taking or retaining the benefits so obtained.

Van Zandt v. Van Zandt, 227 Miss. 528, 538, 86 So.2d 466, 470 (1956). The Restatement (Second) of Agency, § 394 (1958) adds that “an agent is subject to a duty not to act or to agree to act during the period of his agency for persons whose interests conflict with those of the principal in matters in which the agent is employed.”

¶ 18. Although the Mississippi courts have yet to consider the issue, the Florida Supreme Court took up the question of a parent company’s duties to the clients of its subsidiary in Gossard v. Adia Services, Inc., 723 So.2d 182 (Fla.1998). (Although Florida does not have a statute directly addressing interference with or injuries in contractual relations, Florida’s easelaw is consistent with Mississippi statutes). In Gossard, a company named Nursefinders had a franchise agreement with the plaintiff, Gossard, under which Gossard received an exclusive territory within his geographical area. Gossard, 723 So.2d at 183. The defendant, Adia Services, bought Nursefinders, and at the same time another Adia subsidiary named Star-Med began to compete with Gossard. Id. Even though Adia did not have a contractual relationship with Gossard and even though Star-Med — and not Adia itself — was the one competing with Gossard, the Florida Supreme Court held Adia responsible for Gossard’s damages resulting from Star-Med’s Competition. Id. at 184-85.

¶ 19. Applying the Florida case here, Delta Regional is similar to Gossard, Heath Group is similar to Adia, and Resources is similar to Nursefínders. Health Group had no more right to compete against Delta Regional than Adia had a right to compete against Gossard. In fact, Adia’s connection with the injury to Gos-sard is more remote than is Health Group’s connection with the injury to Delta Regional. It was an Adia subsidiary and not the parent that did the competing in Gossard, while Health Group in the present case is the one which sought to compete directly with Delta Regional.

II. WHETHER THE TRIAL COURT ERRED IN HOLDING THAT THERE WAS NO GENUINE ISSUE OF MATERIAL FACT THAT DELTA REGIONAL ACTED TO PROTECT ITS LEGITIMATE INTEREST BY PREVENTING A POTENTIAL CONFLICT OF INTEREST THAT WOULD HAVE RESULTED IF QUORUM HEALTH GROUP, INC. PURCHASED KING’S DAUGHTERS HOSPITAL.

¶ 20. Under the law of Mississippi, recovery is only allowed against those who “intentionally and improperly interfere with the performance of a contract,” while mere negligent interference is no cause of action at all. Morrison v. Mississippi Enterprise for Technology Inc., 798 So.2d 567, 574(¶ 28) (Miss.2001). In Vestal, the Mississippi Supreme Court held that “even if a party ‘interferes’ with the formation or execution of a contract, if he has legitimate interest therein or a contractual right to perform said act, it is privileged and thus not wrongful and actionable.” Vestal, 500 So.2d at 957 (italics omitted) (quoting Martin v. Texaco, Inc., 804 F.Supp. 498, 502-04 (S.D.Miss.1969)).

¶ 21. The trial judge found that, as a matter of law, Delta Regional’s actions were based on a legitimate interest and were therefore privileged. This Court agrees. The management agreement between Resources and Delta Regional provided Delta Regional a “contractual right” to protest Quorum’s acquisition of King’s Daughters, and is therefore privileged.

III. WHETHER THE CIRCUIT COURT ERRED AND MISAPPLIED MISSISSIPPI LAW IN HOLDING THAT NO GENUINE ISSUE OF MATERIAL FACT EXISTED THAT DELTA REGIONAL HAD “CONTRACTUAL RIGHTS” WITH QUORUM HEALTH RESOURCES INC. “RESOURCES” WHICH CAUSED THE ACTIONS OF INTERFERENCE BY DELTA REGIONAL WITH NEGOTIATIONS BETWEEN QUORUM AND KING’S DAUGHTERS TO BE PRIVILEGED.

¶22. The Fifth Circuit has held in Knight v. Sharif, 875 F.2d 516, 524 (5th Cir.1989), that a letter of intent is not a contract. (Contracts to make a contract are not recognized under Mississippi law, unless the final agreement is to be a mere memorial of the agreement already reached.); see also 1A Corbin, Contracts, § 29 (1963). The Mississippi Supreme Court has also emphasized that, “[i]n order for a writing to be enforceable as a contract, agreement must be expressed as to all essential terms. If the document or contract that the parties agree to make is to contain any material term that is not already agreed on, no contract has yet been made; and the so-called contract to make a contract is not a contract at all.” Etheridge v. Ramzy, 276 So.2d 451, 454 (Miss.1973). The court in J. Russell Flowers Inc. v. Itel Corp., 495 F.Supp. 88, 91 (D.C.Miss.1980) stated that it is a matter for the court and not the jury to determine whether a letter of intent amounted to an enforceable contract.

¶ 23. In the present case, the letter of intent between King’s Daughters and Quorum was a contract to make a contract and not the sort of final contract necessary to support a tortious interference claim. In addition, section 15 of the letter of intent is clearly titled “No contract” and states, “this is not binding and no party shall be entitled to any recourse in the form of damages ... in the event that there is a failure, for any reason, of the parties to agree on a term or terms and provisions of a Purchase Agreement.” The record reflects, through depositions, that Quorum’s senior vice president and its vice president both admitted that critical items of the purchase and sale of King’s Daughters, such as the purchase price, remained to be resolved after the execution of the letter of intent. Quorum’s officers did not consider the letter of intent to be a final agreement, and they believed that, until Quorum’s due diligence was complete, material terms of the final contract (such as the purchase price) were yet to be determined. In Quorum’s view, and consistent with the letter of intent, there was no agreement until the final purchase document was executed.

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

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