author: SOUTHWICK, P.J.,

text:
    HOWARD INDUSTRIES, INC., Appellant/Cross-Appellee, v. Charles G. ROBINSON, Appellee/Cross-Appellant.
    No. 2001-WC-01357-COA.
    Court of Appeals of Mississippi.
    Oct. 29, 2002.
    Rehearing Denied Jan. 21, 2003.
    Certiorari Denied May 22, 2003.

      Douglas S. Boone, Laurel, attorney for appellant.
    Thomas L. Tullos, Bay Springs, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES, and BRANTLEY, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. The Workers’ Compensation Commission awarded benefits to Charles G. Robinson based on both a temporary total disability and on a permanent partial disability. The employer, Howard Industries, Inc., appeals. We reject the arguments that Robinson has no permanent loss of wage earning capacity, that Howard should not be required to continue furnishing medical treatment because of a subsequent intervening injury while under the employ of another company, and that statutory penalties and interest should not have been imposed. We agree, however, that Robinson was not temporarily totally disabled for four years and that setting $75 per week as his permanent loss of wage earning capacity is unsubstantiated. We reverse and remand on those issues. We also remand for fact-findings as to when Robinson should have known that his claim of carpal tunnel syndrome was related to his employment at Howard.

STATEMENT OF THE FACTS

¶ 2. Charles Robinson finished high school in 1975. Two years later he received a certificate in welding technology from Jones County Junior College. Robinson then held various positions including maintenance work, off-shore manual labor, and welding. On June 16, 1992, Robinson went to work for Howard Industries. Robinson’s duties initially were to weld the backs on transformers.

¶ 3. Robinson served in this capacity for six months, when he was promoted to crew leader. Robinson’s wages increased, as did the job’s responsibilities and physical requirements. Robinson now had to push 300 to 1500 pound transformers down a roller bed and, apparently with the assistance of other workers, lift 45 to 150 pound air compartments on rigs to inspect them for leaks. There was medical evidence that Robinson’s weight of 130 pounds meant that, without injuries, he should not lift more than 40 to 50 pounds.

¶4. On February 16, 1994, Robinson suffered an undisputed on-the-job injury. Robinson was pulling a transformer on a roller bed. He tripped on a piece of stock, fell backwards, and injured his lower back. Robinson was sent by his employer to a clinic where x-rays were taken. Based on their results, Robinson was referred to a bone and joint clinic. There he was examined and ultimately referred to a neurologist, Dr. Marc D’Angelo, who became Robinson’s primary physician.

¶ 5. As a result of his back injury, Robinson was unable to work for six months. At that time, Dr. D’Angelo released Robinson to return to work with certain restrictions: he was not to push more than 50 pounds nor to pick up more than 25 pounds. Robinson testified that at Howard he was told that light duty was not available. Therefore, he resumed his previous duties. Robinson held this position for approximately three months when he was moved to internal assembly. His primary duties consisted of welding and pushing coil assemblies that weighed as much as eight hundred pounds on a roller bed. Due to the physical demands of this job, Robinson started experiencing back pains, neck pains, migraine headaches, and tingling sensations in his fingers. Robinson attributed his neck pain to the fact that he was required constantly to flip his welding shield down over his eyes with a whipping motion of his neck because his hands were occupied with other aspects of his job. Robinson earned $9.28 per hour while employed in this capacity.

¶ 6. In June of 1997, Robinson went back to see Dr. D’Angelo. After nearly five months, Dr. D’Angelo released Robinson with the same restrictions as before and one more: Robinson could not weld on a repetitive basis. Dr. D’Angelo recommended that Robinson be given a work assignment in the maintenance department. Robinson was told that there was no position available in maintenance and the only job available was the one he was presently performing. Robinson resigned from Howard in November of 1997, because he was physically unable to continue working in his present position. He was earning an hourly wage of $9.88.

¶ 7. Six months later Robinson became employed by Big B Valve. The physical requirements of this job required Robinson to lift twenty pounds on a occasional basis. Robinson testified that approximately three to four months after he started working for Big B Valve and while turning his head to the left, he heard something “pop in his neck.” He passed out. Shortly after this episode, Robinson was laid off. When he was terminated, Robinson had been earning $9 an hour.

¶ 8. There was testimony accepted by the administrative judge that Robinson achieved maximum medical improvement on January 5, 1998. At the time of the hearing, Robinson was employed by L & A Contractors making an hourly wage of $7. This job does not require Robinson to do any heavy lifting and is within the job restrictions placed on Robinson by Dr. D’Angelo.

¶ 9. Robinson filed two workers’ compensation claims. On January 28, 1998, he filed a petition to controvert alleging a cervical injury. On February 17, 1998, Howard Industries filed its answer denying that Robinson suffered from a cervical injury. On June 19, 1998, Robinson filed another petition to controvert alleging that he suffered a lower back injury in February 1994. Howard again filed an answer and admitted that the back injury was a compensable event. On July 20, 1999, Robinson amended his petition to controvert alleging carpal tunnel syndrome in the left hand. Howard answered by asserting as an affirmative defense the statute of limitations as well as denying that Robinson’s carpal tunnel syndrome was a compensable event.

¶ 10. The administrative judge ordered Howard Industries to provide Robinson with the following:

1. Temporary total benefits in the amount $243.75 per week from February 22,1994 until May 1,1997, and in the amount of $270.67 per week from May 1, 1997 until January 5, 1998, with credit for [workers’ compensation] sums previously paid by the employer and for sums earned by the claimant during this period:
2. Permanent partial disability benefits in the amount of $75 per week commencing January 5, 1998 for a period of 450 weeks:
3. Furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, artificial members, and other apparatus for such period as the nature of the injury or the process of the claimant’s recovery from his cervical, lower back and/or left carpal tunnel syndrome injuries may require.

¶ 11. The judge also found that Howard’s November 1997 job-offer was not consistent with the physical restrictions defined by Dr. D’ Angelo. Robinson’s later work for two other companies demonstrated initiative and he retained significant earning capacity. The loss in wage earning capacity was found to be $75 per week.

¶ 12. The Commission on October 12, 2000, adopted and affirmed the administrative judge’s ruling with one exception. The Commission accepted that Robinson sustained a permanent loss of wage earning capacity in the amount of $75 a week, but he would not as a result be entitled to that entire amount but only to two-thirds of his lost earning capacity. The new amount of $50 a week in permanent partial disability benefits was awarded. Howard seeks reversal here.

DISCUSSION

¶ 13. The decision of the Commission will be upheld if there is substantial evidence to support it, and it is neither arbitrary nor capricious. Fleming Enter., Inc. v. Henderson, 741 So.2d 309, 314 (Miss.Ct.App.1999). Howard makes several objections to the findings of the Commission, all of which will be judged using this deferential review.

I. Cervical Injury

¶ 14. Howard Industries argues that the Commission committed error by requiring that it compensate Robinson for his alleged cervical injury. A compensable injury is one “arising out of and in the course of employment without regard to fault which results from an untoward event or events, if contributed to or aggravated or accelerated by the employment in a significant manner.” Miss.Code Ann. § 71 — 3—3(b) (Rev.2000). Howard alleges that this injury occurred elsewhere.

¶ 15. Robinson first complained of a neck injury to a physician in June 1997, three years after his back injury. Dr. D’Angelo on a report made note of Robinson’s complaint, and stated that the pain was “most likely due to repetitive motion of his neck as he flipped his face shield up and down” during welding. An MRI was done, and no compression of the suspected spinal disc was found. The doctor recommended that he be transferred from positions that required continual welding throughout the day, but a job requiring occasional welding would be acceptable. Such a transfer did not occur. Physical examinations over the next few months continued to find no physical evidence of what was causing the pain. Another doctor who examined Robinson found no specific physical cause of the pain that Robinson identified. It is the absence of objective evidence regarding any physical change to the normal condition of Robinson’s -neck that allegedly prevents the Commission from finding that a compensable neck injury occurred in 1997. The employer argues that it was “obvious that the Employee exaggerated any claims of pain and the physicians who evaluated and treated Employee could find no injury that would explain these complaints of pain.”

¶ 16. To put this in terms of our appellate review standard, Howard’s challenge is that the evidence of a cervical injury is insubstantial. There was medical record and affidavit evidence accepting Robinson’s complaints, despite the absence of physical evidence, as truthful and reflective of the effects of the work at Howard. We first address whether there must as a matter of law be some demonstrable physical cause of pain.

¶ 17. Robinson’s claim of a disability must be supported by medical findings. Miss.Code Ann. § 71 — 3—3(i) (Supp. 2001). However, “[cjompensation may be allowed for disabling pain in the absence of positive medical testimony as to any physical cause whatever.” Morris v. Lansdell’s Frame Co., 547 So.2d 782, 785 (Miss.1989). If there are “circumstances tending to show malingering,” the claim may be rejected, but if “the claimant’s testimony as to pain is not inherently improbable, incredible or unreasonable, or ... untrustworthy,” it should be accepted. Id. Medical findings of a disability need not be supported by a physician’s identification of a specific physical condition causing disabling pain. There was medical evidence that such pain arose from the effects of the work at Howard, and the Commission accepted that evidence. That is enough.

¶ 18. Having found that the quality of the evidence was not suspect, we turn to its quantity. There was an explanation that Robinson had been required to use a “whipping” motion with his neck more than 1,000 times a day while he was an “internal welder.” He was unable to use his hands to lower his shield because the nature of his job required his hands to be occupied at all times. Dr. D’Angelo’s report of May 8,1998, stated that “the use of the welding hat precipitated his neck pain....” Dr. Robert Smith, physician for Howard Industries, stated in his deposition that he had encountered this type of problem with welders before. Dr. D’Angelo’s restrictions that Robinson could no longer weld on a repetitive basis arose because of the neck pain. Dr. D’Angelo, as primary treating physician, found Robinson’s claims of pain to be legitimate. This was substantial evidence of a cervical injury.

II. Temporary Disability, total or partial

¶ 19. The administrative judge found that Robinson was totally disabled from the date of his first injury, which occurred on February 16, 1994, through January 5, 1998. In the terminology of the statute, this was a “temporary total disability.” Miss.Code Ann. § 71 — 3—17(b) (Rev.2000). Howard asserts that this was error since Robinson was gainfully employed during most of this time period.

¶ 20. The Commission seemingly affirmed the administrative judge’s order on this point, but used language that qualified that order. The Commission noted Howard’s objection that the claimant had worked during long periods of that four years and therefore could not have been totally disabled the entire time. The Commission then interpreted the judge’s order to hold that Howard “did not have to pay temporary total disability benefits ... for any period of time from February 16, 1994 and January 5, 1998 during which he worked and earned his regular wages.” We do not find that limitation in the- administrative judge’s order, though as we explain, the judge did provide for a credit. The Commission then concluded that Robinson was entitled to “temporary disability benefits from February 16, 1994 through January 5, 1998 only for those periods of time when he was, because of injury, unable to work and earn his full pay.”

¶ 21. Two weeks later, the Commission sent a letter to indicate the benefits that were owed. It showed total disability benefits that would be paid for all four years, subtracted the amounts that had already been paid including wages, and computed the difference. We have to interpret this, despite the Commission’s earlier language, that total disability was owed for four years, with credits for wages earned. Whether that is an acceptable approach is the focus of the discussion that follows.

“Temporary disability, whether total or partial, has reference to the healing period following injury; it begins with the disabling injury and continues until such time as the employee reaches the maximum benefit from medical treatment, or differently expressed, it is a condition which exists until the injured employee is cured or is as far restored as the permanent character of his injuries will permit.” Triangle Distributors v. Russell, 268 So.2d 911, 912 (Miss.1972) (emphasis added). Russell holds that the period of temporary disability is not necessarily a period of total disability. Whether total or partial, temporary disability ends when the worker reaches maximum benefit from medical treatment. Id. at 912-13. Retaining substantial wage earning capacity and being returned by a physician to work while the healing process continues constitutes a temporary partial disability, not a total one. While temporarily and partially disabled, the injured worker is entitled to two-thirds of the difference between his average weekly wages before the injury and his earning capacity during the period “in the same or other employment....” Miss.Code Ann. § 71-3-21 (Rev.2000).

¶22. The administrative judge in her opinion found Robinson to be totally, not partially, disabled from February 16, 1994, through January 5, 1998, allowing Howard “credit for ... sums earned by the claimant during this period.” The problem with this characterization of “total” disability is that Robinson worked for long periods during the four years at Howard, with periods of few complaints, with performance of some duties that may have been beyond his work restrictions, and with some disability throughout. This likely means that there were some periods of total disability during that four years as Robinson was out of the workplace for extensive but not constant periods.

¶ 23. This cannot be four years of total disability. We find error in categorizing it as such. Again, we note that the Commission’s language seemed to accept that reality. The Commissioners, though stating that they agreed with the administrative judge, “reiterate here that Mr. Robinson is entitled to temporary disability benefits from February 16, 1994 through January 5, 1998 only for those periods of time when he was, because of injury, unable to work and earn his full pay.” They referred to one of their own decisions for a fuller explanation: Hendershot v. Weiser Security Systems, Inc., MWCC 97-08017-G-0280 (May 25, 1999). In that 1999 opinion, the Commission overturned a finding of temporary total disability for the four month period that an employee was back at work. It found that during a period in which the claimant “worked and earned wages,” there generally should not be “temporary total disability” benefits. In Hendershot, the administrative judge had credited against the amount that would be paid as benefits the total wages paid the claimant during that same period. We quote the Commission’s analysis in Hendershot as to why that was error:

Temporary disability benefits represent a substitute for wages lost by the employee during the period of ... recovery from injury. If the employee is still technically in recovery, but has returned to work and is suffering no loss of wages, then temporary disability benefits are not payable, [citations omitted] To further refine the point, benefits for temporary total disability are payable when the employee is completely unable to engage in work and is therefore suffering a total, yet temporary, loss of wage earning capacity. Miss. Code Ann. § 71-3-17(b) (Rev.1995). Benefits for temporary partial disability are payable when the employee is able to work, but is not earning full pay and is therefore suffering a partial, yet .temporary, decrease in wage earning capacity. Miss.Code Ann. § 71-3-21 (Rev. 1995).

¶ 24. We agree with the Hendershot opinion that an administrative judge does not “net the same result by simply awarding the Claimant temporary total disability benefits during the entire period and allowing the Employer credit for any wages earned by the Claimant during this period.” In a case dealing with a different reason for a credit (a company-provided employee disability benefit plan), the Supreme Court found that the employer paid more in its own disability plan than was owed during the first year of the period for workers’ compensation benefits. South Central Bell Telephone Co. v. Aden, 474 So.2d 584, 596 (Miss.1985).

Because the amount of payments under the Company Benefit Plan exceeded the amount of compensation payable by law, employer argues that it is entitled to even greater credit, suggesting that in fact claimant “has already received the equivalent of 94 weeks compensation .... ” In other words, employer would have us take the total amount paid under the Company Benefits Plan and divide the same by [the amount payable under the workers’ compensation formula] and with the number of weeks yielded by this mathematical division process being the number of weeks for which employer is entitled to credit.

Id. The Court found that the credit did not work that way. The employer was entitled to credit for fully paying each week of benefits for a year, but the excess in weekly company disability payment above the workers’ compensation benefit amount did not gain the employer additional credit to reduce the next year’s workers’ compensation benefits. Id.

¶ 25. Therefore, determining the total amount of workers’ compensation benefits that were due for the entire four-year period of 1994-1998, then crediting against that amount the total compensation received during the periods of work during those four years, does not lead to the right credit.

¶26. There is a more fundamental problem than the arithmetic. A worker is not entitled to temporary total disability benefits if the worker is not totally disabled. The claimant may be working at reduced wages because of his injuries. That is a partial disability. We find a useful explanation of temporary partial disability in a recent chapter in a legal encyclopedia:

Typically, these [temporary partial disability] benefits are due when the worker returns to work but the effect of the injury makes work temporarily unavailable to the workers at the same pay as before the injury. It is not unusual for the benefits to be preceded by temporary total disability benefits and could be followed by permanent partial benefits or by no further benefits if there is no permanent disability.

John R. Bradley & Linda A. Thompson, Workers’ Compensation Law § 76.40, in 9 Ency. of Miss. Law (Jeffrey Jackson & Mary Miller, eds., 2002), at 167-68.

¶ 27. We acknowledge that the administrative judge’s approach simplified the calculations, but Howard is here seeking the more arduously performed but more accurate calculations of the extent of partial disability that existed during most of this period, and the extent for briefer periods that total disability existed, and even if there were periods when there was no disability at all. Though this is Howard’s issue, we also find that because of the nature of the credit as explained in Aden, crediting the entire wages earned for the period against the entire compensation benefits that would be paid for total disability for four years may credit too much to the employer.

¶ 28. Howard is entitled to that accuracy, and so is the claimant. We agree with the language in the Commission’s order, which stated that Robinson was entitled to “temporary disability benefits from February 16, 1994 through January 5, 1998 only for those periods of time when he was, because of injury, unable to work and earn his full pay.” We remand so that this concept is reflected in the actual calculation of benefits that are owed for the four years.

III. Proof of permanent loss of wage-earning capacity

¶29. The Commission awarded Robinson a permanent partial impairment rating of ten per cent because of cervical and back injuries. Any finding of a disability must be supported by medical evidence. Miss.Code Ann. § 73-3-3(i) (Supp. 2001). Howard contends that this award is not.

¶ 30. As with a previous issue, Howard avers that there was no objective medical evidence to establish a permanent disability, and that the only proof that Robinson offers is his allegations of pain. The Commission accepted Dr. D’Angelo’s assessment that Robinson suffered a ten percent permanent impairment to the body as a whole based on “chronic pain associated with the injuries without neurological deficit.” D’Angelo assigned a five percent rating each to the disability arising from the back pain and that arising from the cervical pain. Howard characterizes this as a finding based “solely on the Employee’s subjective complaints of pain.” Howard is correct. We have already discussed that such a finding is permitted, though the Commission is to be wary of malingering and to reject complaints that are inherently improbable, incredible or unreasonable. We find nothing in the evidence to suggest that this admonition was ignored. The believability of this pain was accepted by at least two physicians whose evidence was received.

¶ 31. We earlier discussed the evidence of a cervical injury. As to the Commission’s finding permanent disability also because of lower back problems, that is based on the original injury that Robinson suffered in 1994. Dr. D’Angelo assigned restrictions and a permanent five percent impairment rating solely because of the pain in his back. Dr. Robert Smith also had examined Robinson, and his evidence was offered by the employer. Dr. Smith examined Robinson in November 1997 and found a bulging lumbar disk. He put various restrictions on Robinson’s work duties and assigned a permanent partial impairment rating of five percent to the body as a whole.

¶32. We find substantial evidence of permanent disability of ten percent. We agree with Howard that the issue was contested and contrary medical evidence was presented. The Commission’s discretion in choosing which evidence to accept was not abused.

IV. Calculation of loss of wage earning capacity.

¶ 33. The Commission found that the permanent impairment resulted in a loss of $ 75 a week in earning capacity. The administrative judge in announcing this figure admitted to its inexactitude. She found that Robinson’s earnings had varied among the various employers described in the evidence, that he had substantial restrictions that would prevent his maintaining his highest-paying past position as a full-time welder. No mathematical calculations appear. The Commission adopted the conclusion without making any reference to specific wages before or after the injury.

¶ 34. The weekly benefit for permanent partial disability is two-thirds of the difference between the claimant’s average weekly wage at the time of the injury and his wage-earning capacity “in the same employment or otherwise.” Miss.Code Ann. § 71-3-17(25) (Rev.2000). It was stipulated that Robinson’s average weekly wage when his back injury occurred was $527 in 1994. It was further stipulated Robinson’s average weekly wage when his alleged cervical claim arose was $ 443 in 1997. The averaged “average weekly wage” during the period in which both injuries occurred was $485. Howard presented evidence that Robinson earned an average weekly wage of $551.85 in subsequent employment, actually earning more than he earned at Howard, giving support to their claim that Robinson did not suffer a loss of wage earning capacity. There is a rebut-table presumption created that there is no loss of wage earning capacity when the claimant returns to work and is able to earn the same or greater wages than before the injury occurred. Wilcher v. D.D. Ballard Const. Co., 187 So.2d 308, 310 (Miss.1966).

¶ 35. The rebuttal included evidence that a major portion of Robinson’s post-injury earnings were the result of overtime. This overtime was not guaranteed. The administrative judge in a footnote gave this explanation for the absence of any explanation for how the $75 figure was derived.

The wage loss in this case is not an exact calculation. There were two injuries with two average weekly wages but ultimately each injury disabled the body as a whole. Likewise the claimant has demonstrated a capacity for earning post injury which has varied between employers, and there is some inference that his first employment ran out subsequent to the incident which Dr. D’Angelo relates to the cervical injury. More significantly, the permanent restrictions placed on the claimant include the restriction that he not weld on a regular permanent basis, allowing only “spot” welding or occasional welding. This deprives the claimant of his principal occupation or trade and the chief source of income for the past 15 years.

■¶36. The $75 figure would seem to reflect the conclusion that the impact of these injuries on Robinson’s wages was not profound, but that some amount had to be assigned because of the permanent impairment rating. The evidence does support that Robinson can no longer physically perform welding jobs that pay more today than do other jobs that he can perform today.

¶ 37. Among the ways to rebut the presumption of no loss of earning capacity because current wages are equivalent to those pre-injury, are these:

Increase in general wage levels since the time of accident; claimant’s own greater maturity or training; longer hours worked by claimant after the accident; payment of wages disproportionate to capacity out of sympathy to claimant; and the temporary and unpredictable character of post-injury earnings.

Smith v. Picker Service Co., 240 So.2d 454, 456 (Miss.1970), quoting 2 LaRson, WORKMEN’S Compensation Law (1952), § 57.21. Some of this sort of evidence was introduced, but we find nothing that directly or even by reasonable inference leads to the $75 figure.

¶ 38. Here, the difficulty was to determine a figure that is based on evidence, when the evidence is of something inexact and subject to many variables. The employer should not be made to suffer because the fact-finder contrives a figure out of frustration and the appellate court accepts it out of deference. On this state of the record, we are at a loss of whether there was any significant effort to determine a figure, or whether $75 was just adopted as a relatively low amount that represented some loss of capacity to earn wages. We find the reason for this amount to be sufficiently indecipherable that we remand to the Commission to explain in further fact-findings, or to adopt some other figure that on further review better represents the evidence.

V. Subsequent Intervening Injury

¶ 39. Robinson suffered an injury while working for a subsequent employer. Howard argues that this injury absolved it of financial responsibility. While employed at Big B Valve in 1998, Robinson attempted to turn his head to the left, felt something pop in his neck, and passed out from pain. Howard calls this a subsequent intervening injury. It relies in part on the fact that Robinson had been cleared to go back to work by several physicians before leaving Howard. This, Howard suggests, proves that all of Robinson’s injuries acquired while at Howard were resolved.

¶ 40. The general rule is that “when a pre-existing disease or infirmity of an employee is aggravated, lighted up, or accelerated by a work-connected injury, or if the injury combines with the disease or infirmity to produce disability, the resulting disability is compensable.” Rathborne, Hair & Ridgeway Box Co., v. Green, 237 Miss. 588, 594, 115 So.2d 674, 676 (1959). That rule requires that the effects of the former injury no longer be present at the time that a later injury occurs. On the other hand, “an employer remains liable for all manifestations of an injury, regardless of how long the manifestations continue, but if an independent agency terminates the effect of the original injury, the employer is not liable for subsequent injuries.” Wal-Mart Stores Inc. v. Fowler, 755 So.2d 1182, 1185 (Miss.Ct.App.1999). An employer also remains liable if a prior compensable injury makes the claimant more prone to a subsequent injury. Id. at 1186. For Howard to prevail, it must be established that effects of the 1997 cervical injury did not contribute to the cause of the injury that was suffered at Big B Valve.

¶ 41. The defense of intervening cause is an affirmative one. The burden of proof is on the first employer. Marshall Durbin Co. v. Warren, 633 So.2d 1006, 1008 (Miss.1994). The Commission found no medical evidence that the injury that occurred at Big B Valve was independent of the injury that occurred while Robinson was employed by Howard. Robinson had not been released to go back to work with all of his injuries resolved. In part this argument arises from the same point as in previous issues, namely, that the only basis that Robinson has that he continued to suffer from injuries at Howard was the pain that he reported, pain not based on any identifiable physical cause. We have rejected that as a reason to reverse the finding of disability.

¶ 42. Robinson was still under several vestigial restrictions while at Big B Valve. He was not to weld on a repetitive basis because the weight of the welder’s hat was deemed by Dr. D’Angelo to be the source of Robinson’s cervical injury. Dr. D’Angelo stated this in his affidavit:

this ■ problem is no different than the problem that he had before.... In analysis of this situation, it seems that the original neck pain from the previous injury was exacerbated by movement of his neck and arm. This led to the patient being caught in the hoses. When he hung in the hoses, he must have stretched his neck or caused his neck to move abruptly, causing a second injury on top of the first injury. He may not have had the second injury if he did not have the neck pain initially.

¶ 43. The Commission’s finding that the later injuries were not totally independent of those at Howard is supported by substantial evidence.

VI. Carpal Tunnel Syndrome

¶ 44. Howard finds nothing in the record to support the Commission’s conclusion that Robinson’s carpal tunnel syndrome was causally related to his employment with them. The company also argues a statute of limitations issue that we will address first.

¶45. If no payment of compensation, with the exception of funeral or medical expenses, is made within a two-year period from the occurrence of the injury, and no claim is filed, the claim is barred. Miss. Code Ann. § 71-3-85 (Supp.2001). Dr. D’ Angelo’s report of June 4, 1997, indicated that Robinson was experiencing symptoms of carpal tunnel syndrome. Since Robinson did not file his motion to amend his claim for carpal tunnel syndrome until June 22, 1999, nor had Howard paid for any treatment for carpal tunnel during that period, Howard argues that the claim is barred.

¶ 46. Howard properly raised the affirmative defense of the statute of limitations in its answer, procedurally making this a viable defense. The two-year statute of limitations is tolled until the injury becomes apparent. Struthers Wetts-Gulfport, Inc. v. Bradford, 304 So.2d 645, 649 (Miss.1974). Carpal tunnel syndrome is a gradual infirmity and is not immediately recognizable. Lucas v. Angelica Uniform Group, 733 So.2d 285, 288 (Miss.Ct.App.1998). The limitations period begins once “a claimant is, or reasonably should be aware of having sustained a compensable injury, but the statute is deemed not to have began running if the claimant’s reasonably diligent efforts to obtain treatment yield no medical confirmation of compensable injury.” Georgia Pacific Corp. v. Taplin, 586 So.2d 823, 828 (Miss.1991).

¶47. Dr. D’Angelo’s medical affidavit revealed that Robinson had possible left carpal tunnel syndrome, which he thought on June 4, 1997, was work-related. At the time of this diagnoses, Robinson was employed by Howard. He later worked for Big B Valve which required him to use his hands in tightening nuts and bolts. Howard argues that this type of repetitive motion was more likely the cause of Robinson’s ailment than the welding he performed while employed by them. On May 17, 1999, Dr. Lon Alexander concluded that Robinson had carpal tunnel syndrome. He stated that he was unable to say to a reasonable degree of certainty that it began during his employment with Howard. However, Dr. Alexander believed that the type of work that Robinson did at Howard could be the cause of his carpal tunnel syndrome.

¶ 48. The Commission did not make a finding as to when Robinson should have been aware that the carpal tunnel syndrome not only existed, and not only that it was work-related, but that it created a “disability.” For this reason we reverse and remand to the Commission for a finding of fact on when Robinson knew or should have known by the reasonable use of care and diligence that the carpal tunnel syndrome was a compensable injury. If Robinson should have known more than two years prior to June 22,1999, then his claim is time-barred.

¶ 49. Next we address whether Robinson’s carpal tunnel syndrome can be attributed to his employment at Howard. If not, the timeliness of Robinson’s claim is irrelevant. Unless common knowledge suffices, medical evidence must prove not only the existence of a disability but also its causal connection to employment. Bradley & Thompson, Workers’ Compensation Law, § 76:58, in 9 Ency. Miss. Law, at 182-84. The medical evidence is sufficient if it supports, even if it does not fully prove, a finding of disability. Hall of Mississippi Inc. v. Green, 467 So.2d 935, 938 (1985). Dr. Alexander stated in his deposition that it was possible that Robinson acquired carpal tunnel syndrome while working as a welder for Howard, due to the type of work he performed. Dr. Alexander also stated that if Robinson had complained of carpal tunnel symptoms during employment with Howard, and the proof shows that Robinson had, the doctor could ascribe the carpal tunnel syndrome to the welding work to a reasonable degree of medical certainty. That is substantial medical evidence of the existence and work connection.

¶ 50. We note that the Commission did not award any permanent partial disability benefits as a result of the carpal tunnel syndrome. The $50 per week award was due to the whole body injuries regarding the back and neck. Instead, Howard was simply ordered to pay medical expenses benefits arising from the carpal tunnel syndrome. We find no error in this.

VIL Medical Treatment

¶ 51. Howard denies financial responsibility for reasonably necessary medical treatment of any of Robinson’s injuries. An employer has a duty to provide “such medical, surgical, and other [services] ... for such period as the nature of the injury or the process of recovery may require.” Miss.Code Ann. § 71-3-15 (Rev.2000). There is sufficient evidence in the record to support a.finding that Robinson suffered both a lower back and cervical injury while employed by Howard to justify a ten percent impairment rating to the body as a whole. Since both of these injuries are compensable under the Act, we find that Howard is bound to provide the reasonable medical care for Robinson’s recovery. Bradley & Thompson, Workers’ Compensation Law, in 9 Ency. Miss. Law § 76:102 (employer to pay for reasonable, necessary and appropriate medical services and supplies). Whether Howard will be responsible for Robinson’s carpal tunnel syndrome remains unresolved.

VIII. Penalties and Statutory Interest

¶ 52. Howard maintains that it has provided all the benefits required and therefore it does not owe any penalty or interest. However, since we are upholding the award of permanent partial disability, the applicable penalties and interest are due.

IX. Admission of Evidence

¶ 53. The administrative judge would not admit into evidence copies of the Laurel Leader Call newspaper. The stated purpose was to demonstrate through classified advertisements the available positions that Robinson could have obtained. However, Howard was allowed to introduce a twelve-page exhibit listing these advertisements in that newspaper and the dates that they were published. This list represented counsel’s effort to collect the advertisements of positions that were available in the Laurel area consistent with Robinson’s restrictions. The company also offered the newspapers themselves, but the administrative judge would not admit them.

¶ 54. Howard was allowed to present the evidence in a readily accessible form for the various tribunals to use. The refusal to admit the cumulative evidence of the actual newspapers was not error.

X. Cross-Appeal

¶55. Robinson argues on cross-appeal that the Commission committed error by reducing Robinson’s weekly award by one-third. We find that the Commission was exactly correct that a claimant is only to receive two-thirds of the loss of wage earning capacity during the period of permanent partial disability. We have reversed and remanded for findings as to the calculation of that loss. We find nothing new to consider as a result of the cross-appeal.

¶ 56. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY ON DIRECT APPEAL IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART TO THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. THE JUDGMENT IS AFFIRMED ON CROSS-APPEAL. THE COSTS OF THE APPEAL ARE ASSESSED EQUALLY TO THE APPELLANT AND TO THE APPELLEE.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.


source: Caselaw Access Project

author: LEE, J., KING, P.J.,

license: Public Domain

text:
    Maurice GRAY, Appellant, v. STATE of Mississippi, Appellee.
    No. 1999-KA-01180-COA.
    Court of Appeals of Mississippi.
    Nov. 5, 2002.
    Rehearing Denied Jan. 7, 2003.
    Certiorari Denied May 15, 2003.

      George T. Kelly, Greenville, Edward J. Bogen, Jr., Leland, attorneys for appellant.
    Office of the Attorney General by Charles W. Maris Jr., attorney for appel-lee.
   LEE, J.,

for the court.

PROCEDURAL HISTORY

¶ 1. In June 1999, a Bolivar County jury convicted Maurice Gray of murder and aggravated assault. Gray was sentenced to serve a term of life imprisonment for the murder conviction and twenty years imprisonment for the aggravated assault charge, said sentences to run concurrently. Thereafter, Gray filed a motion for new trial or in the alternative a judgment notwithstanding the verdict, which was denied. Aggrieved, he appeals to this Court and raises the following issues for our review: (1) did the trial court err in allowing evidence to be presented concerning Gray’s former drug arrest; (2) did the trial court err in failing to give a limiting instruction regarding evidence of Gray’s former drug arrest; (3) did the trial court commit error in refusing Gray’s requested manslaughter instruction; (4) was the trial court’s failure to remove a juror error; and (5) did the cumulative impact of all errors require reversal of the conviction? We review all issues presented and find no merit; thus, we affirm.

FACTS

¶ 2. In August 1998, Maurice Gray was arrested for drug possession. Thereafter, Gray was heard to make threats against Ladell Lay and other persons he thought had alerted the police as to his possession of the drugs. On or about September 10, 1998, Gray approached a car which was occupied by Lay and Alonzo Cooper. After words were exchanged, Gray pulled out a gun and shot both Lay and Cooper, striking Lay in the head which killed him and striking Cooper in the buttocks as he tried to flee. Gray left the scene, but was later apprehended and was ultimately charged with murder and with aggravated assault.

DISCUSSION OF THE ISSUES

I. DID THE TRIAL COURT ERR IN ALLOWING EVIDENCE TO BE PRESENTED CONCERNING GRAY’S FORMER DRUG ARREST?

¶3. With his first issue, Gray argues the trial court erred in allowing the State to present evidence concerning Gray’s August 1998 arrest for drug possession. The standard of review concerning the admissibility of evidence is abuse of discretion, and absent such abuse, we will not reverse the court’s ruling. Hall v. State, 611 So.2d 915, 918 (Miss.1992).

¶ 4. As previously mentioned, one month prior to the shooting at issue, Gray had been arrested for possession of drugs with intent to distribute. Gray believed that someone had alerted the police that he had drugs in his car, and he was later heard to threaten those he believed had “snitched on him.” Based on this evidence, the State sought to introduce this evidence to show Gray’s motive for the shooting. Gray objected, saying the evidence was highly prejudicial and would prevent him from receiving a fair trial. The judge ruled that since the State’s case rested on this motive of Gray’s vengeance, the evidence was highly probative as to outweigh any prejudicial effect that might result, according to the balancing test proscribed in Rule 408 of the Mississippi Rules of Evidence (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”).

¶ 5. Gray refers to the case of Campbell v. State, 750 So.2d 1280 (Miss.Ct.App. 1999), in support of his theory. In Campbell, the defendant’s conviction for sale of cocaine was reversed and remanded for a new trial after this Court found that the jury was improperly permitted to hear repeated references to other charges pending against Campbell. Campbell, 750 So.2d at (¶ 13). The present case is distinguishable from Campbell, however, in that the State’s reference to Gray’s prior arrest was not for the purpose of prejudicing the jury, but was admitted to show motive. Admission for such purpose is permitted by Rule 404(b) of the Mississippi Rules of Evidence:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(emphasis added). In the present case, the State’s case rested upon proving that Gray’s motive for approaching the victims’ car was to follow through on his prior threat to pay them back for what he thought was their “snitching” to the police.

¶ 6. The judge stated on the record that he had conducted the required balancing test and had found that the probative value outweighed the prejudicial affect. Gray has failed to show that the trial court abused its discretion, and we find no error here.

II. DID THE TRIAL COURT ERR IN FAILING TO GIVE A LIMITING INSTRUCTION REGARDING EVIDENCE OF GRAY’S FORMER DRUG ARREST?

¶ 7. Gray also argues that the trial court should have given the jury a limiting instruction concerning evidence of his pri- or arrest. The record contains discussion between the attorneys and the judge concerning which instructions to give and which to reject. At no place in the discussion does the subject of a limiting instruction arise. Despite defense counsel’s failure to request such instruction, a question remains concerning whether or not the court, on its own motion, was required to give an instruction. The supreme court states that the better practice is for the trial judge to grant a limiting instruction sua sponte when proper request is not made by counsel. Robinson v. State, 735 So.2d 208(¶ 10) (Miss.1999). However, in Bishop v. State, 771 So.2d 397 (Miss.Ct.App.2000), this Court clarified the rule from Robinson:

While we recognize the clear holding in Robinson that it was reversible error for the trial court not to have given sua sponte a limiting instruction on the facts of that case, we do not read Robinson to pronounce a per se reversible error rule when the trial court fails to give. sua sponte the required limiting instruction, nor do we read Robinson to exclude such error from the harmless error analysis. Thus, we look at the facts of our case to determine whether the failure to give the required limiting instruction is harmless error.

Bishop, 771 So.2d at (¶ 15). In Bishop, the charge was uttering a forgery and the prior act sought to be introduced concerned false pretenses and embezzlement convictions. Id. at (¶ 8). We determined that the court’s failure to give a limiting instruction was harmless error as ample other evidence existed to support the conviction. Id. at (¶ 11). We find the same to be true in the present case. Gray did not request a limiting instruction, and although the court arguably erred in failing to give an instruction sua sponte, we find such error to be harmless as abundant other evidence existed to support the verdict. Thus, we find no merit to this issue.

III. DID THE TRIAL COURT COMMIT ERROR IN REFUSING GRAY’S REQUESTED MANSLAUGHTER INSTRUCTION?

¶ 8. Gray claims that the court erred in failing to give his requested instruction on manslaughter as a lesser-included offense. He claimed that since his defense was two-pronged, one theory being self-defense and the other theory being manslaughter, the court should have allowed the instruction. The State counters that no evidence supported his supposed manslaughter defense; thus, the court did not err in refusing the instruction.

¶ 9. The record is void of any evidence from which the jury could have determined the killing resulted from heat of passion. Gray points to the testimony of Augustine McClellan who, after the shooting, observed the car in which the victim was found. McClellan testified that one of the victims, Ladell Lay, was sitting in the car and had a can of beer in his right hand. Alonzo Cooper, the other victim, testified that he was in the car when Gray shot Lay, and Lay had his hand on the gear shift. Gray now claims on appeal that the discrepancies in these two testimonies prove that at some point Lay must have made a movement' from the can to the gear shift, which would support Gray’s theory that he thought Lay’s movement indicated he was reaching for a gun, which caused Gray to respond in the heat of the passion in shooting at Lay.

¶ 10. Gray states that it is not necessary that the quality of the proof in support of his theory rise to any certain level of credibility or that some minimum quantum of proof be developed, and even the flimsiest of evidence, so long as it has some probative value, is enough to permit him to have the jury instructed on his theory of the case. See Hester v. State, 602 So.2d 869, 873 (Miss.1992). While we recognize this rule, we find that Gray has not presented evidence to show that a manslaughter instruction should have been given. The evidence to which Gray points, specifically McClellan’s and Cooper’s testimonies, only show that Gray could have acted in self-defense in shooting Lay, thinking that with Lay’s quick movement he was reaching for a weapon. Thus, we find he has failed to present any proof to support a manslaughter instruction.

¶ 11. In Phillips v. State, 794 So.2d 1034 (Miss.2001), the supreme court addressed a similar issue on appeal concerning whether or not a manslaughter instruction should have been given. In that case, the court looked to the definitions of manslaughter and heat of passion in finding that the court did not err in failing to give a manslaughter instruction:

Manslaughter committed in the heat of passion is defined in Miss.Code Ann. § 97-3-35 as, “the killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense.... ” Heat of passion has been defined as, A state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.
This passion should be an emotion brought about by some insult, provocation, or injury, which would produce in the minds of ordinary men “the highest degree of exasperation.” We have stated that words alone and disagreements among people are not enough to invoke the passion required for this defense. “Mere words, no matter how provocative, are insufficient to reduce an intentional and unjustifiable homicide from murder to manslaughter.”

Phillips, 794 So.2d at (¶¶ 9-10) (citations omitted). Applying the supreme court’s finding in Phillips to the present case, we cannot find that the testimonies of McClellan and Cooper provide enough information as to warrant any suspicion that Gray may have shot Lay in the heat of passion, which could support a manslaughter conviction. The trial judge discussed in detail with the attorneys whether or not the manslaughter instruction was appropriate in this case, and despite repeated attempts by Gray’s attorney to convince the judge that such instruction was needed, the judge ultimately found that no evidence existed to support such instruction.

A murder defendant is not entitled to a manslaughter instruction where the record contains no evidence from which the jury could determine that the killing resulted from heat-of-passion and not the result of malice. A defendant’s statement that he wanted to kill the victim made prior to the fatal stabbing was evidence of malice.

Dobbins v. State, 766 So.2d 29 (¶ 11) (Miss.Ct.App.2000) (citations omitted). The record shows that Gray made threats against those he believed “snitched,” and we find these statements show Gray’s malicious state of mind which, according to Dobbins, negate his ability to refute such inference. We find no error with the judge’s actions, and we affirm his decision to reject the manslaughter instruction.

IV. DID THE TRIAL COURT ERR IN REMOVING A JUROR AND REPLACING HER WITH AN ALTERNATE?

¶ 12. This issue concerns a situation that arose on the third day of trial which caused the State to move for the dismissal of one of the jurors, Edneatha Williams. Gray now argues that the court failed to state a reason for dismissing the juror in accordance with Miss.Code Ann. § 13-5-67 (Supp.2001). (“Alternate jurors ... shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties.”). Gray argues this juror did not become unable or disqualified to perform her duties.

¶ 13. Williams was removed towards the end of trial after the State found that she had an indirect relationship with Gray, which information was not brought out pre-trial. The facts show that during recesses in the trial when the jury was not in the box, a spectator at the trial, Antonio Harvey, visited the defense table and appeared to be reviewing documents with Gray and his attorney. From the transcript, it is unclear as to the relationship Williams had with Antonio Harvey. The following excerpt is taken from the transcript of Assistant District Attorney Ros-si’s in-chambers examination of Investigator David James at the beginning of day three of the trial.

ROSSI: For the record, would you state your name and occupation, please?
JAMES: David James, Jr., State Criminal Investigator, Eleventh Circuit Court District.
ROSSI: Mr. James, did you have an opportunity this morning to speak to a spectator in the courtroom, I believe his name is Antonio Harvey?
JAMES: I did.
ROSSI: And if you would, relate to the Court—
BY THE COURT: What is his name, by the way?
BY MR. ROSSI: The spectator?
BY THE COURT: Yes.
BY MR. ROSSI: Antonio Harvey.
BY THE COURT: Go ahead.
ROSSI: (Mr. Rossi continued): Could you relate to the Court what that conversation was about. If you would just start at the beginning and take — go' through the conversation.
JAMES: I approached him. I talked to him as if he already knew me from the past or whatever. I started a conversation about his girlfriend and asked him basically were they still dating or whatever. And he told me, yes. And I said, “yeah, you know the young lady that is still on the jury.” I said Edweetha, Adleatha. I was trying to get him to say the particular name or whatever. He said, “oh, yeah, I know who you are talking about.” He said, “yeah, we’re still kicking.” And that was his conversation.
BY THE COURT: We are still what?
BY MR. JAMES: Kicking it. That’s a street term meaning that they are still dating or they’re still seeing each other, or they have some kind of contact.
BY THE COURT: Okay.
BY MR. JAMES: Kicking it.
BY THE COURT: I need an interpreter every now and then.
ROSSI: (Mr. Rossi continued) Is that the extent of the conversation?
JAMES: That was the extent of it.

Ms. Mitchell, another officer of the court, also told the judge that she overheard the conversation between James and Antonio Harvey to which Harvey told James he was “kicking” with Williams.

¶ 14. Before the jury was sent to deliberate, the judge called Juror Williams into chambers to ask exactly what was going on with Antonio Harvey and to determine if Williams indeed had some connection to Antonio Harvey or to Gray.

THE COURT: Ms. Williams, it’s been brought to the attention of the Court that you may know one of the persons who is a friend, I would say, of the defendant in this case; that is, Mr. Harvey? Is that correct? Is he the person that is a spectator out there? How well do you know Mr. Harvey?
WILLIAMS: Well, I just met him about two or three months ago.
THE COURT: Do y’all see each [other] or date or that sort of thing?
WILLIAMS: No, not him. No, uh-uh.
THE COURT: Who then?
WILLIAMS: Well, I was talking to his brother. His brother.
THE COURT: What do you mean “talking to” his brother?
WILLIAMS: Well, we was dating.
THE COURT: You were dating the brother of this Mr. Harvey?
WILLIAMS: Yeah.
THE COURT: The one who’s been sitting as a spectator?
WILLIAMS: Yes. He just came in yesterday.
THE COURT: All right. I’m still not sure. Mr. Harvey has a brother who is also Mr. Harvey, I presume? WILLIAMS: The dude that I was dating his brother, his name was Karlus. I was dating his brother, Karlus.
THE COURT: Mr. Harvey’s brother you are talking about?
WILLIAMS: Yes, Karlus. I was dating his brother Karlus.
THE COURT: Okay. You know Mr. Harvey?
WILLIAMS: Talking about the — out there.
THE COURT: Yes.
WILLIAMS: Yeah, I know him through his brother.
THE COURT: And you have dated his brother?
WILLIAMS: Yes.
THE COURT: And you do know — well, you’ve already told the Court that you knew the defendant?
WILLIAMS: Yeah. I know of him, but I don’t know him personally.
THE COURT: But you do know Mr. Harvey?
WILLIAMS: Karlus.
THE COURT: But you do know Mr. Harvey also?
WILLIAMS: The one out there?
THE COURT: Yeah.
WILLIAMS: Yeah — yes, sir. I just seen him when I used to go over there and visit his brother.

After this exchange, Williams told the judge that she broke up with Karlus Harvey, Antonio’s brother, a couple of days before trial and that she casually knew Antonio. She affirmed that she could be fair in deciding the case. The judge told her that although he appreciated her effort, out of caution he could not take a chance, especially since he had four capable alternate jurors, one of whom could serve as a replacement for her. He then dismissed Williams from the panel.

¶ 15. With the initial voir dire, Williams was individually questioned by the attorneys and the judge, since she stated she had previously heard about the case. However, at the time of voir dire, neither the State nor the defense had any way of knowing they should question Williams concerning her relationship to Antonio Harvey, since at the time of voir dire, it was not known that Antonio Harvey would appear at trial and talk with Gray as he repeatedly did. As reflected in the transcript, the State explained that, had they known at the time of selecting the panel that Williams had this “indirect” connection to Gray, she certainly would have not been selected. Regardless, the information only came out during the trial at which time the State promptly moved to remove her from the panel. Williams apparently knew both Antonio Harvey and Harvey’s brother, Karlus, who the record shows had fathered two of her children. Whether or not Williams had a dating relationship with Antonio is unclear. However, the circumstances still show that Williams had an indirect relationship to Gray which we find justifies the judge’s decision, as explained herein.

¶ 16. “The dismissal of a juror for good cause and her replacement with an alternate is within the sound discretion of the trial judge.” Horton v. State, 726 So.2d 238(¶41) (Miss.Ct.App.1998). This was a judgment call on the judge’s part. It is unfortunate that this information was not available pre-trial when there would have been little or no question but to exclude Williams from the panel. However, caselaw mandates that Gray must prove that he was prejudiced by the court’s decision to replace Williams with an alternate. Vaughn v. State, 712 So.2d 721(¶ 15) (Miss.1998). Gray has failed to make such showing, and we find no error with the judge’s decision to remove the juror.

V. DID THE CUMULATIVE IMPACT OF ALL ERRORS REQUIRE REVERSAL OF THE CONVICTION?

¶ 17. Gray finally argues that the cumulative impact of the errors alleged on appeal denied him a fair trial. Having found no merit to any other issues previously addressed with this appeal, we cannot find that Gray was denied a fair trial. This issue has no merit.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF THE SECOND JUDICIAL DISTRICT OF BOLIVAR COUNTY OF CONVICTION OF COUNT I, MURDER AND SENTENCE OF LIFE AND COUNT II, AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS, SAID SENTENCES TO RUN CONCURRENTLY, BUT CONSECUTIVELY TO ANY SENTENCES PREVIOUSLY IMPOSED, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR. KING, P.J., DISSENTS WITH A SEPARATE WRITTEN OPINION JOINED BY IRVING, J.

KING, P.J.,

dissenting.

¶ 19. I believe the majority opinion to be wrong, and therefore, dissent.

¶20. About September 10, 1998, Gray approached a car in which Ladell Lay and Alonzo Cooper were sitting. After exchanging words, Gray is alleged to have pulled a gun and shot Lay and Cooper. Lay died of a gunshot wound to the head, while Cooper’s wound was not fatal.

¶ 21. Gray was tried for murder and aggravated assault, beginning June 7, 1999. The trial was before a jury, which was duly empaneled after voir dire and the exercise of challenges for cause and peremptory challenges.

¶22. Among the persons accepted for jury service, without objection, was Ednea-tha Williams. However, on the third day of trial, the State asked to have Williams replaced as a juror saying:

There is a juror — Juror Number 2 on the panel, also Juror Number 2 in the petit jury — Aneatha [sic] Williams, who—
BY THE COURT: Juror Number 2?
BY MR. ROSSI: Yes, sir.
BY THE COURT: What is her name?
BY MR. ROSSI: Aneatha [sic] Williams.
BY THE COURT: All right.
BY MR. ROSSI: And there is a spectator in the courtroom named Antonio Harvey. Mr. Harvey has been here throughout the trial, and he is Mends with the defendant, Mr. Gray. At every break that we have had, he comes up to counsel table and sits with Mr. Gray and talks to him about whatever it is that they are talking about, throughout this trial.
Juror Number — it is my understanding that Juror Number 2 is the girlfriend of Mr. Harvey. In fact, there is some children by, I believe it is, Mr. Harvey’s brother that Ms. Williams has. And it is certainly obvious that Mr. Harvey is aligned with Mr. Gray in this case. Ms. Williams did not indicate at all that she was friends with or had any type of relationship or connection to Mr. Gray.

As proof of these allegations the State offered the testimony of its investigator that during each recess, when the jury was out of the courtroom, he observed Antonio Harvey going up to counsel table and talking with the defendant. Based upon that observation, the investigator initiated a conversation with Harvey, the substance of which was as follows:

MR. JAMES: I approached him. I talked to him as if he already knew me from the past or whatever. I started a conversation about his girlfriend and asked him basically were they still dating or whatever. And he told me, yes.
And I said, “yeah, you know the young lady that is still on the jury.” I said Edweetha, Adleatha. I was trying to get him to say the particular name or whatever.
He said, “oh, yeah, I know who you are talking about.” He said, “yeah, we’re still kicking.”
And that was his conversation.
BY THE COURT: We are still what?
BY MR. JAMES: Kicking it. That’s a street term meaning that they are still dating or they’re still seeing each other, or they have some kind of contact.
BY THE COURT: Okay.
BY MR. ROSSI: Kicking it.
BY THE COURT: I need an interpreter every now and then.
Q. (Mr. Rossi continued): It that the extent of the conversation?
A. That was the extent of it.
Q. Okay. Did you approach him based on information that you received after—
BY THE COURT: Do you have testimony about the — you’re alleging that Antonio Harvey has met with the defendant throughout the trial and that sort of thing? How do you intend to prove that?

¶23. Miss.Code Ann. § 13-5-67 allows for the replacement of a juror who becomes unable or disqualified to perform his duties. There has been no suggestion that Williams was unable to perform her duties. Therefore, the question faced by the trial court, and now this Court, is whether Williams was disqualified from performing her duties. Where the issue is not one of whether the juror meets the statutory qualifications of Section 13-5-1, disqualified is used synonymously with “good cause.” Myers v. State, 565 So.2d 554, 558 (Miss.1990).

¶ 24. “Good cause” may be found where a juror during voir dire withheld information, or misrepresented material facts. Id. at 558. However, such a finding is possible only where (1) the question propounded to the juror was relevant to the voir dire examination, (2) the question was unambiguous, and (3) the juror had substantial knowledge of the information sought to be elicited. Odom v. State, 355 So.2d 1381, 1383 (Miss.1978).

¶25. In asking that Williams be removed, the State alleged that when questioned during voir dire Williams hid her relationship to Gray, and as such was disqualified. The specific statement from the State was, “Ms. Williams did not indicate at all that she was friends with or had any type of relationship or connection to Mr. Gray.”

¶ 26. The record before this Court is devoid of any evidence of a relationship between Gray and Williams. The State attempts to skirt this problem by suggesting that Williams had a relationship with Antonio Harvey, who in turn knew Gray. Williams, under oath, denied a relationship with Harvey, but stated she knew him from having dated his brother. Likewise, she denied under oath having any relationship with Gray. Williams’ denial of a relationship with Harvey or Gray is the only clear and credible evidence in the record on this issue.

¶ 27. The record of voir dire does not indicate any clear and unambiguous questions propounded to Williams requesting information about any possible relationship between Williams and Harvey, or any other persons, who knew Gray about which there is evidence that her answers were evasive, incomplete, inaccurate or inscrutable.

¶ 28. Where the State, as in this case, infers that Williams was dishonest in her answers, it bears the burden of establishing (1) that a question relevant to the voir dire was propounded to Williams, (2) that the question propounded to Williams was clear and unambiguous, (8) that Williams had substantial knowledge of the information requested by the question, and (4) that Williams answer, if less than responsive was prejudicial to the State. Lewis v. State, 580 So.2d 1279, 1288 (Miss.1991). The only questions asked of Williams which even remotely touched on this issue were asked in chambers, and they were asked because she acknowledged having heard about this case. Those questions were as follows:

EXAMINATION BY THE COURT:
Q. Ms. Williams, you indicated that you had heard something about this case; is that right?
A. Yes, sir.
Q. Can you tell us where did you hear it from?
A. Well, I was in the hospital. I had just had my baby. And my baby’s daddy had told me of Maurice Gray had shot Ladell Lay. That’s all he said.
Q. That was my next question. What did you hear? And you heard somebody say that Maurice Gray had done what?
A. Shot Ladel Lay.
Q. okay. Did you hear anything else?
A. No, because I was in the hospital.
Q. Later on, have you heard anything else?
A. No.
Q. That’s all you’ve heard about it?
A. (Witness moved head up and down.)
BY THE COURT: Y’all want to ask any questions?
BY MR. WALLS: Just one question.
BY THE COURT: I need to follow up.
Q. (The Court continued): Can you lay aside what you just stated and try this case on what happens in the courtroom, not in the hospital, but in the courtroom?
A. Yes, sir.
Q. You can do that?
A. Yes, sir.
BY THE COURT: Now, do y’all have any questions?
BY MR. WALLS: I have no questions.
EXAMINATION BY MR. ROSSI:
Q. Do you know Mr. Gray at all?
A. Well, I know, you know, I seen him walking by: but I don’t know nothing about him.
BY MR. ROSSI: I don’t have any other questions, Judge.
BY THE COURT: Okay, you can step outside.

¶ 29. The State did not meet the burden of showing Williams to be disqualified for jury service in this case. The State did not establish (1) that a question relevant to the voir dire was propounded to Williams, (2) that the question propounded to Williams was clear and unambiguous, (3) that Williams had substantial knowledge of the information requested by the question, and (4) that Williams answer, if less than responsive, was prejudicial to the State. Williams was not disqualified from jury service, McNeal v. State, 617 So.2d 999, 1003 (Miss.1993), and it was therefore error for that trial court to remove her from the jury three days into the trial.

¶ 30. Because the State failed to establish that Williams was disqualified from serving on the jury, the decision to remove her from the jury under these circumstances was the equivalent of providing the State with an additional peremptory challenge. The decision to remove Williams from the jury improperly tipped the balance of fairness to favor the State, and was therefore an abuse of discretion.

¶ 31. I would accordingly reverse and remand for a new trial.

¶ 32. The majority agrees that the evidence on this issue “is unclear.” Despite this lack ■ of clarity, it defends its decision by saying, “However, the circumstances still show that Williams had an indirect relationship to Gray....” They first describe this relationship as knowing someone who knew Gray, a third degree relationship. They now define this relationship as knowing the brother of someone who knew Gray. That is at best a fourth degree relationship.

¶ 33. The majority also alleges that had the State been aware of this fourth degree relationship, it would have exercised a challenge against her. The majority states that because the State was unaware of this relationship, it did not inquire about it and did not challenge Williams. The inference being that Williams somehow prevented the State’s inquiry into this matter. Such logic is akin to blaming a victim of rape for being born a female. It makes no sense.

¶ 34. The State could have with all ease asked, “Does anyone here know anyone who knows the defendant.” If the answer was yes, then an appropriate followup question could be asked.

¶ 35. One of the simple truisms of voir dire is that you cannot fault a person for not responding to a question not asked. McNeal v. State, 617 So.2d 999, 1003 (Miss.1993); Myers v. State, 565 So.2d 554, 557-58 (Miss.1990). The State did not ask, and now seeks to fault Williams for what it did not do.

IRVING, J., JOINS THIS SEPARATE WRITTEN OPINION.

      . Miss.Code Ann. Section 13-5-67 (Supp. 2001), Alternate jurors impaneled: Except in cases in which jury selection and selection of alternate jurors is governed by rules promulgated by the Mississippi Supreme Court, whenever, in the opinion of a circuit judge or chancellor presiding in a case in which a juiy is to be used, the trial is likely to be a protracted one, such circuit judge or chancellor, in his discretion, may direct that one (1) or two (2) jurors in addition to the regular panel be called and impaneled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the juiy retires to consider its verdict, become unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges for cause, shall take the same oath and shall have the same functions, powers, facilities and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged at the time the juiy retires to consider its verdict. In capital cases the defendant and the state shall each be allowed two (2) peremptoiy challenges to alternate jurors in addition to those otherwise provided by law. In all other cases each party shall be allowed one (1) peremptory challenge to alternate jurors in addition to those otherwise provided by law. In any criminal case all peremptory challenges by the state shall be made before the alternate juror is presented to the defendant. The additional peremptoiy challenges provided for herein may be used against an alternate juror only, and other peremptory challenges allowed by law may not be used against an alternate juror.


author: CHANDLER, J.,

text:
    Derrick PRUITT a/k/a Derrick Solomon Pruitt, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-00828-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2002.
    Rehearing Denied Jan. 28, 2003.
    Certiorari Denied May 15, 2003.

      Derrick Pruitt, pro se, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before SOUTHWICK, P.J., LEE, MYERS and CHANDLER, JJ.
   CHANDLER, J.,

for the court.

¶ 1. Derrick Pruitt was convicted of armed robbery in the Circuit Court of Washington County. Pruitt was sentenced to eighteen years in the custody of the Mississippi Department of Corrections as a habitual offender based on two prior felony convictions. On October 11, 2000, Pruitt filed a motion for post-conviction relief (PCR) challenging the validity of one of the prior felony convictions. Pruitt filed a motion for production of documents on November 1, 2000, and a motion for summary judgment on December 13, 2000. On January 3, 2001, the trial court entered an order dismissing the PCR motion as time barred and denying all associated motions.

¶ 2. Pruitt has appealed pro se from the trial court’s order. He raises six issues regarding his sentence in one of the underlying felonies, and challenges the denial of his motion for production of documents. Finding no error, we affirm.

FACTS

¶ 3. On August 9,1983, Pruitt pled guilty to armed robbery and was sentenced to serve fifteen years in the Mississippi Department of Corrections with the last seven suspended. On February 8,1993, Pruitt pled guilty to grand larceny for theft of a cash register. Pruitt’s probation was revoked, and he was sentenced to two years, to serve one year concurrently with his previous sentence and one year suspended. On November 29, 1994, Pruitt robbed á convenience store customer at gunpoint. After a bench trial, he was convicted of armed robbery and sentenced to eighteen years without the possibility of parole based on the two previous felony convictions. The conviction was affirmed by this Court on July 29, 1997, and a mandate issued on February 12,1998.

ISSUES AND ANALYSIS

¶ 4. Since he proceeds pro se, we have afforded Pruitt substantial latitude in reviewing his briefs and the record. Myers v. State, 583 So.2d 174, 175 (Miss.1991). Pruitt’s issues are:

I. THE TRIAL COURT ERRONEOUSLY RELIED ON THE PROCEDURAL TIME BAR TO PREVENT REVIEW OF PRUITT’S UNDERLYING CONVICTION AND' SENTENCE.
II. THE TRIAL COURT ERRED BY NOT GRANTING SUMMARY JUDGMENT FOR PRUITT SINCE THERE WAS NO GENUINE ISSUE OF MATERIAL FACT BECAUSE OF THE ILLEGAL SENTENCE RECEIVED IN THE UNDERLYING CONVICTION.
III. PRUITT’S GUILTY PLEA IN THE 1993 CONVICTION WAS INEFFECTIVE SINCE HE WAS IMPROPERLY INDUCED TO PLEAD GUILTY BY THE PROSECUTION IN EXCHANGE FOR AN ILLEGAL SENTENCE.
IV.. IT WAS ERROR OF A CONSTITUTIONAL MAGNITUDE TO USE THE 1993 CONVICTION AS AN ENHANCING FELONY BECAUSE OF THE ILLEGAL SENTENCE.
V. USE OF THE 1993 CONVICTION AND ILLEGAL SENTENCE FOR ENHANCEMENT WAS NOT HARMLESS ERROR AND VIOLATED PRUITT’S FUNDAMENTAL RIGHTS, THOUGH PRUITT ULTIMATELY BENEFITTED FROM THE SUSPENDED SENTENCE.
VI. THE PHILLIPS RULE THAT PRECLUDES REVIEW OF ENHANCING FELONIES AT SENTENCING, TOGETHER WITH THE PROCEDURAL .TIME BAR,. OPERATED AS A BAR TO COLLATERAL ATTACK OF ENHANCING FELONIES AND DENIED PRUITT DUE PROCESS OF LAW, IN VIOLATION OF THE MISSISSIPPI AND UNITED STATES CONSTITUTIONS.
VII. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING PRUITT’S MOTION FOR PRODUCTION OF DOCUMENTS.

¶ 5. In review of the trial court’s dismissal of a PCR motion, we will not disturb the factual findings of the trial court unless they are determined to be clearly erroneous. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). However, if a question of law is raised, then the review is de novo. Laushaw v. State, 791 So.2d 854, 856 (¶ 13) (Miss.Ct.App.2001).

¶ 6. We will begin by addressing Pruitt’s 1993 grand larceny sentence and attendant issues. The trial court dismissed Pruitt’s motion for post-conviction relief as time barred because the motion attacked a sentence Pruitt received in 1993, seven years prior to the instant motion. Mississippi Code Annotated § 99-39-5(2) (Rev.2000) provides that Pruitt had three years after the entry of judgment of conviction of grand larceny to request post-conviction relief. Pruitt’s case fits none of the statutory exceptions to this three-year limitation for

(1) cases in which the prisoner can show that there has been an intervening decision of the Mississippi or United States Supreme Court which would adversely affect the outcome of his conviction, (2) cases in which he has new evidence, not discoverable at trial, that would have caused a different result in conviction or sentence, or (3) cases in which the prisoner claims his sentence has expired or his probation, parole or conditional release has unlawfully been revoked.

Laushaw, 791 So.2d at 856(¶ 9) (summarizing the statutory exceptions).

¶ 7. There is another exception to the procedural time bar. “Errors affecting fundamental constitutional rights may be excepted from procedural bars which would otherwise prohibit their consideration” Luckett v. State, 582 So.2d 428, 430 (Miss.1991). The sum of Pruitt’s first five arguments is that he should be excepted from the time bar since the grand larceny sentence was illegal and impacted his fundamental constitutional rights. We will review Pruitt’s claim because the three-year bar generally does not preclude review of a motion seeking relief from an illegal sentence. Graves v. State, 822 So.2d 1089, 1092 (¶ 12) (Miss.Ct.App.2002).

¶ 8. Pruitt argues the sentence of two years with one year suspended was illegal because, as a prior felon, he was not eligible for a partially suspended sentence. He is correct. Mississippi Code Annotated § 47-7-33 (Rev.2000) prevents a trial court from suspending the sentence of a defendant who has been convicted of a felony on a previous occasion. Id. See Graves, 822 So.2d at 1091(¶ 8). Pruitt alleges that the offer of this illegal sentence induced him to plead guilty.

¶ 9. The right of freedom from an illegal sentence is a fundamental right. Luckett, 582 So.2d at 430. A defendant’s fundamental right of freedom from an illegal sentence is violated when the sentence imposes an undue burden on the defendant, such as when the offer induces a plea and the State later seeks to rescind the suspension solely because it was statutorily barred. Graves, 822 So.2d at 1092 (¶ 11); Chancellor v. State, 809 So.2d 700, 702(¶8) (Miss.Ct.App.2001). In this case, Pruitt benefitted from the illegal sentence since it was a more lenient sentence than he was actually entitled to receive. Therefore, Pruitt suffered no fundamental unfairness from the illegal sentence, and his fundamental rights were not violated. McGleachie v. State, 800 So.2d 561, 563(¶ 4) (Miss.Ct.App.2001); Chancellor, 809 So.2d at 702(¶ 8).

¶ 10. Pruitt avers that the sentence was an undue burden since it became burdensome at the moment the trial court used it to enhance his armed robbery sentence. This argument is without merit. A convicted felon may not quietly enjoy the benefits of an illegally lenient sentence, and later attack the sentence when suddenly it is in his interest to do so. Graves, 822 So.2d at 1092 (¶ 11).

¶ 11. Pruitt’s sixth assignment of error is that he was denied due process because the time bar limited his ability to attack his habitual offender status in post-conviction proceedings. Phillips v. State, 421 So.2d 476, 481 (Miss.1982), established that at a sentencing hearing to determine habitual offender status, the trial court’s review of enhancing felonies is limited to facial review of the convictions to determine voluntariness. Id. Any attack upon an enhancing felony which goes beyond the face of the record of the conviction must be prosecuted in a collateral proceeding. Pruitt argues the Phillips rule prevented review of the 1993 sentence at the habitual offender sentencing hearing, and he was unable to attack the sentence on PCR because of the three year limitation. He alleges that he neglected to attack the 1993 sentence within three years after entry of judgment because he lacked incentive to do so until the sentence was used for enhancement.

¶ 12. This issue is without merit. This Court has reviewed Pruitt’s sentence and concluded that he is entitled to no relief. Even had we refused to consider the sentence, Pruitt’s lack of incentive to have the sentence reviewed until it was used for enhancement does not implicate due process. “The fact [the appellant] was not interested in implementing a challenge until after he had committed more crimes is not an objective, external factor that impeded his ability to raise these claims within Mississippi’s time period.” Moore v. Roberts, 83 F.3d 699, 704 (5th Cir.1996). “The establishment of these time boundaries is a legislative prerogative. That body has the right to fix reasonable periods within which an action shall be brought and, within its sound discretion, determine the limitation period.” House v. State, 754 So.2d 1147, 1150(¶9) (Miss. 1999) (quoting Cole v. State, 608 So.2d 1313, 1317-18 (Miss.1992)). Additionally, Pruitt’s incentive to challenge the sentence should have arisen when he established his habitual offender status with the armed robbery in 1994, well within the time to file a PCR motion in the 1993 conviction. Pruitt is not entitled to any relief, and we affirm the dismissal of his PCR motion, and the denial of his motion for summary judgment.

¶ 13. Pruitt’s final issue is that the trial court improperly denied his motion for production of documents. The motion requested copies of Pruitt’s indictment, plea agreement, and transcript of the plea hearing from each underlying felony, and the probationary report from the 1983 armed robbery conviction. Pruitt attached the affidavit of his attorney, Willie Bailey, whose attempt to procure the transcripts was unsuccessful because the transcripts could not be located.

¶ 14. Mississippi Code Annotated § 99-39-15 (Rev.2000) provides, “A party may invoke the processes of discovery available under the Mississippi Rules of Civil Procedure or elsewhere in the usages and principles of law if, and to the extent that, the judge in the exercise of good discretion and for good cause shown grants leave to do so, but not otherwise.” Id. The standard of review for the trial judge’s denial of a motion under this section is abuse of discretion. Roland v. State, 666 So.2d 747, 751 (Miss.1995). The movant’s PCR motion must withstand summary dismissal, and the information sought must be relevant to issues raised in the motion. Id.

¶ 15. Pruitt was not entitled to discovery. Pruitt’s PCR motion did not withstand summary dismissal. Neither did Pruitt demonstrate any specific need for the documents to support the PCR motion. The crux of Pruitt’s arguments is that his sentence was illegal, and this argument was aptly illustrated by the sentencing order from the 1993 conviction that was included in the record. The trial court’s denial of the motion for production of documents was not an abuse of discretion.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY DISMISSING WITH PREJUDICE POST CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS AND BRANTLEY, JJ., CONCUR.


author: LEE, J.,

text:
    Marcus Demon ROSE, a/k/a Marcus Deon Rose, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00966-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2002.
    Rehearing Denied Feb. 4, 2003.
    Certiorari Denied May 15, 2003.

      John D. Watson, attorney for appellant.
    Office of the Attorney General by Charles W. Maris Jr., attorney for appel-lee.
    Before KING, P.J., BRIDGES, and LEE, JJ.
   LEE, J.,

for the court.

PROCEDURAL HISTORY

¶ 1. On May 24, 2001, a DeSoto County Circuit Court jury found Marcus Demon Rose guilty of the crime of felon in possession of a firearm. Rose was sentenced to serve two years in the custody of the Mississippi Department of Corrections, with credit for forty-seven days served. Rose appeals his conviction, raising the following issues: (1) the lower court erred in denying his motion in limine to exclude testimony from the officers that they smelled marijuana coming from the vehicle; (2) the lower court erred in denying his motion for a new trial or judgment notwithstanding the verdict; and (3) the jury verdict was against the overwhelming weight of the evidence. We find these issues to be without merit; thus, we affirm.

PACTS

¶2. On July 21, 2000, two Southaven police officers observed a car parked in the fire lane area of a movie theater. While driving past the car, both officers smelled burning marijuana emanating from the car. The officers observed the vehicle drive off and begin to park, then they approached and asked Rose to step out of the car. As Rose exited the car, a cartridge fell to the ground. One of the officers saw a gun stuck between the driver’s seat and the door jamb of the car. After taking possession of the firearm, the officer noticed that it was a loaded, .40 caliber Smith and Wesson semi-automatic pistol. The cartridge, which had fallen to the ground when Rose exited the car, matched the caliber and manufacturer of the ammunition found in the pistol. The officers also noticed a small marijuana cigarette still burning in the ashtray and, upon further search of the car, found a clear plastic bag containing a substance consistent with marijuana. During questioning by the officers, Rose admitted to having a felony conviction. Rose was then advised of his Miranda rights and arrested.

DISCUSSION OF ISSUES

I. DID THE LOWER COURT ERR IN DENYING ROSE’S MOTION IN LIMINE TO EXCLUDE TESTIMONY FROM THE OFFICERS THAT THEY SMELLED MARIJUANA COMING FROM THE CAR?

¶3. Prior to trial, Rose made a motion in limine to exclude the officers’ testimony that they smelled marijuana coming from Rose’s vehicle, which the trial judge denied. A trial judge enjoys a great deal of discretion as to the relevance and admissibility of evidence. Hughes v. State, 735 So.2d 238 (¶ 134) (Miss.1999). However, the discretion of the trial judge must be exercised according to the Mississippi Rules of Evidence. Johnston v. State, 567 So.2d 237, 238 (Miss.1990). We will only-reverse a trial court’s determination concerning the relevancy or admissibility of evidence if an abuse of discretion existed. Jefferson v. State, 818 So.2d 1099(¶ 6) (Miss.2002).

¶4. The trial judge allowed the State to ask the officers why they stopped Rose. Both officers stated they smelled marijuana coming from the ear, thereby establishing probable cause to further investigate the situation. The trial judge found this evidence relevant to the State’s case and concluded that the State could not tell the whole story properly without revealing why the officers initially stopped Rose. The trial judge determined M.R.E. 403 did not apply because admitting the fact that the officers smelled marijuana emanating from Rose’s car did not unfairly prejudice Rose. No other discussion about the marijuana was allowed other than was necessary for the officers to show probable cause for stopping Rose. However, the trial judge should have granted, sua sponte, a limiting instruction concerning the marijuana smell. Nevertheless, the trial judge’s failure to give a limiting instruction is, at worst, harmless error, particularly in light of the overwhelming evidence against Rose. We find that the trial judge did not abuse his discretion by allowing the officers to testify as to what gave them probable cause to stop Rose.

II. DID THE LOWER COURT ERR IN DENYING ROSE’S MOTION FOR A NEW TRIAL OR A JUDGMENT NOTWITHSTANDING THE VERDICT?

¶5. Rose argues that the trial court erred in failing to grant him a new trial. Our standard of review concerning a motion for new trial states:

In reviewing the decision of the trial court on a motion for a new trial, this Court views all of the evidence in the light most consistent with the jury verdict. A motion for a new trial addresses the weight of the evidence and should only be granted to prevent an unconscionable injustice.

Daniels v. State, 742 So.2d 1140 (¶ 11) (Miss.1999) (citations omitted). We find there was sufficient evidence to deny the motion for a new trial or judgment notwithstanding the verdict. Rose admitted to the officers that he borrowed the gun from his cousin. Although he later denied saying this, sufficient evidence was presented for the jury to find otherwise. Rose also admitted that he had unloaded the gun and placed it elsewhere in the car, even though the officers discovered that the gun was loaded. Again, there was sufficient evidence for the jury to resolve any discrepancies in Rose’s story in favor of the State. Therefore, the trial judge did not err in refusing to grant the motion for a new trial.

III. WAS THE JURY VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 6. We look to our standard of review to determine whether a jury verdict is against the overwhelming weight of the evidence:

[T]his 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. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. As such, if the verdict is against the overwhelming weight of the evidence, then a new trial is proper.

Baker v. State, 802 So.2d 77 (¶ 14) (Miss.2001). In arguing that the verdict was against the overwhelming weight of the evidence, Rose claims that neither the ear in which the gun was found nor the gun in question belonged to him. Rose further argues that handling the gun for purposes of unloading it was insufficient to show that he had intentionally and consciously possessed the weapon.

¶ 7. According to Curry v. State, “there must be sufficient facts to warrant a finding that the defendant was aware of the presence and character of a particular substance and was intentionally and consciously in possession of it.” Curry v. State, 249 So.2d 414, 416 (Miss.1971). In the present case, there was sufficient evidence for the jury to convict Rose. Rose handled the gun, he attempted to unload it, even though the officers discovered it was loaded, and hid it between the seat and door jamb. Furthermore, Rose admitted to both officers that he borrowed the gun from his cousin. Considering the evidence, we find that no unconscionable injustice would result if we allowed the verdict to stand. Accordingly, we affirm.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF FELON IN POSSESSION OF A FIREARM AND SENTENCE OF TWO YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESO-TO COUNTY.

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


author: McMILLIN, C.J.,

text:
    Steven STANLEY, Appellant, v. David TURNER, Appellee.
    No. 2001-CP-00060-COA.
    Court of Appeals of Mississippi.
    Jan. 21, 2003.
    Certiorari Denied May 15, 2003.

      Steven Stanley, Pro se, attorney for appellant.
    Office of the Attorney General by Jane L. Mapp, attorney for appellee.
   ON MOTION FOR REHEARING

McMILLIN, C.J.,

for the Court.

¶ 1. The motion for rehearing is denied. The original opinion is withdrawn and the following is substituted.

¶ 2. Steven Stanley has appealed from a judgment of the Circuit Court of Greene County denying him any relief in a proceeding commenced by him as a Petition for Writ of Habeas Corpus, complaining that he was being improperly held in confinement since his sentence for an armed robbery conviction obtained in Pearl River County had run out. The trial court denied relief, holding that the court lacked jurisdiction. Stanley has appealed from that ruling.

I.

Relevant Facts

¶ 3. Stanley’s original petition alleged only that, after his arrest in Mississippi, he had been extradited to Alabama where he served a number of years in confinement for crimes committed in that state. Stanley asserted his entitlement to credit for those years served in Alabama against his Mississippi sentence since that period of incarceration occurred after his arrest on the charges arising in Pearl River County.

¶ 4. In an amended petition, Stanley further alleged that he had been wrongfully removed from trusty status by Mississippi Department of Correction officials, resulting in a loss of 138 days of earned good time. Stanley, in his amended petition, does not reassert Ms claim for credit for time served in Alabama. Nor does he contend that, with credit for the improperly lost days of earned good time, he was eligible for release from confinement. Rather, he merely asks for an order of the circuit court “restoring petitioner’s trust status and good time credits.”

II.

Jurisdictional Issues

¶ 5. Though Stanley styles both his original and amended pleadings as petitions for writ of habeas corpus, it appears to the satisfaction of this Court that both pleadings raise issues cogmzable under other statutory provisions regulating Stanley’s detention.

¶ 6. Although Stanley failed to renew his original claim of entitlement to immediate release in his amended petition, he did not affirmatively abandon that claim. In view of the fact that he is proceeding pro se, we elect to treat the two pleadings as being merely alternative claims of entitlement to relief. Myers v. State, 583 So.2d 174, 176 (Miss.1991).

A.

Original Petition

¶ 7. Since the passage of Mississippi’s Uniform Post-Conviction Collateral Relief Act, a claim that a prisoner is being wrongfully held after Ms term of confinement has expired is one that must be brought under the provisions of that Act. Miss.Code Ann. § 99 — 39—5(1)(g) (Rev. 2000). Jurisdiction for such a proceeding lies in the circuit court where the conviction was obtained and not in the county where the movant may be incarcerated. Miss.Code Ann. § 99-39-7 (Rev.2000); Maston v. State, 768 So.2d 354(¶ 5) (Miss. Ct.App.2000). Therefore, as to Stanley’s claim as filed in Ms original petition, the Circuit Court of Greene County was correct in dismissing for lack of jurisdiction since the Circuit Court of Pearl River County had exclusive jurisdiction to consider such a claim.

B.

Amended Petition

¶ 8. A habeas corpus proceeding is appropriate as an original proceeding oMy to protect a constitutionally-recognized liberty interest asserted by the petitioner. In this case, Stanley does not contend that, by having added back the days of earned good time he alleges to have been wrongfully withdrawn, he would be entitled to immediate release. The alleged misclassification of a prisoner while in the custody of the Mississippi Department of Corrections does not, of itself, involve a cognizable liberty interest that could be asserted by way of habeas corpus. Carson v. Hargett, 689 So.2d 753, 754 (Miss.1996).

¶ 9. The State, in its brief to this Court, asserted that the true nature of Stanley’s claim in his amended petition is for judicial review of a final decision of an administrative proceeding brought under the Administrative Remedies Program. Miss.Code Ann. § 47-5-807 (Rev.2000). Further, the State contended, Stanley failed to affirmatively demonstrate that he imtiated such a proceeding and pursued it to its administrative conclusion as the necessary prerequisite to judicial review. Miss.Code Ann. § 47-5-803(2) (Rev.2000). This Court originally dealt with Stanley’s claim regarding his trusty status on that basis, stating that “[tjhere is nothing in the record to show that StaMey took advantage of this corrective measure [an A.R.P. administrative proceeding], a step that he should have taken.”

¶ 10. On rehearing, for the first time, Stanley affirmatively asserts that he did, in fact, pursue an administrative grievance prior to filing his habeas corpus proceeding. As evidence thereof, he attaches to his motion a photocopy of a certificate issued by the Administrator of the Administrative Remedy Program certifying Stanley’s (apparently unsuccessful) completion of the program and certifying his eligibility “to seek judicial review within 30 days of receipt of the Third Step Response.” That same document contains a signed statement by which Stanley acknowledged receipt of his Third Step Response on May 18, 2000. Thus, Stanley contends, he has demonstrated satisfactorily the necessary prerequisite to obtaining judicial review of his (mis)elassification and thereby revealed the error of the circuit court and this Court in dismissing his petition on jurisdictional grounds.

¶ 11. In deference to Stanley’s status as a pro se litigant, we elect to disregard for the moment the procedural difficulties of the method and timing of the production of relevant evidence and accept as true these late-arriving assertions by Stanley. Having done so, however, we note that, by his own assertions, Stanley’s right to judicial appeal under the Administrative Remedy Program began to run on May 18, 2000, and that the statutory right of appeal must be asserted “within thirty (30) days after receipt of the agency’s final decision....” Miss. Code Atm. § 47-5-807 (Rev.2000). The record shows that Stanley’s original petition was not filed until September 19, 2000, well past the allowable thirty day period. Filing within the statutorily-mandated time is jurisdictional. Edmond v. Anderson, 820 So.2d 1(¶ 8) (Miss.Ct.App.2002).

¶ 12. It is well-established that this Court will affirm the action of the trial court when the right result is reached, even if for an incorrect reason. Carter v. State, 167 Miss. 331, 342, 145 So. 739, 741 (1933); Booker v. State, 745 So.2d 850 (¶ 18) (Miss.Ct.App.1998). Assuming, for the sake of argument only, that the trial court had some sort of duty to affirmatively inquire as to Stanley’s compliance with the Administrative Remedy Program before dismissing his petition in this case, it is evident that an alternative, but equally valid, reason to dismiss on jurisdictional grounds would have been established by Stanley’s own uncontradicted evidence. We, therefore, find no error in the trial court’s decision to dismiss Stanley’s petition and amended petition.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF GREENE COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THE APPEAL ARE ASSESSED TO GREENE COUNTY.

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