author: CARLSON, Justice, for the Court.

text:
    In the Matter of the CONSERVATORSHIP OF Mary Caroline Lambert BARDWELL, an Incapacitated Person. Michael Randall Bardwell v. Mary Caroline Lambert Bardwell.
    No. 2001-CA-01951-SCT.
    Supreme Court of Mississippi.
    July 17, 2003.

      Wayne Dowdy, Donald Edwin Walsh, Liberty, Attorneys for Appellant.
    T. Mack Brabham, McComb, Attorney for Appellee.
    Before McRAE, P.J., DIAZ and CARLSON, JJ.
   CARLSON, Justice, for the Court.

¶ 1. Aggrieved by the chancellor’s actions in failing to recuse himself, disallowing conservator’s fees, and directing partial repayment of conservator’s fees, the stepson of the ward has appealed to this Court for relief. Finding no reversible error, we affirm the judgment of the Amite County Chancery Court.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On May 5, 2000, Michael Randall Bardwell (Randy), the stepson of Mary Caroline Lambert Bardwell (Mrs. Bard-well) petitioned the Amite County Chancery Court to be appointed as conservator of the person and estate of Mrs. Bardwell, then eighty-three (83) years of age and a stroke victim. By order dated May 11, 2000, the chancellor appointed Randy to serve as the conservator. The order also required Randy to perform an inventory of real and personal property owned by Mrs. Bardwell and file this inventory with the court within sixty (60) days. Randy also was required to post a $500 bond. This conservatorship was established in cause number 2000-92 on the docket of the Chancery Court of Amite County. On July 13, 2000, Randy filed in the conserva-torship cause a petition to enter into a timber management contract with Timber and Wildlife Management, Inc. in order to preserve the assets of Mrs. Bardwell’s estate, which included the timber located on certain real property belonging to Mrs. Bardwell.

¶ 3. The following day, Randy also filed a Petition for Appointment of a Successor Trustee in a separate cause (cause number 2000-139) in the Amite County Chancery Court, requesting the court to appoint him as the successor trustee for the Mary Lambert Bardwell Living Trust. Apparently, that petition was granted because Randy, as successor Trustee, subsequently joined in the Petition to Enter Into Timber Management Contract which had previously been filed in the conservatorship cause. On August 29, 2000, Randy petitioned the court to make monetary gifts of $10,000 to himself, his three children, and Leslie Lambert (nephew of Mrs. Bardwell). In this petition, Randy swore under oath that the value of Mrs. Bardwell’s estate, consisting of cash on hand, timber, real property and personal assets, was $1,851,426; however, that petition was denied.

¶4. The Forest Management Plan was filed with the chancery court on September 1, 2000. On the same day, the chancellor entered a decree authorizing the Plan and likewise authorizing the conservator “to pay such expenses and fees that have accrued to the conservatorship and to continue to make such payments as are deemed proper and to account therefore annually.” At the end of this sentence, the chancellor inserted a comma in place of the period and then inserted in his own handwriting the words “including conservator’s fee to one (sic) of $27,000.”

¶ 5. Thereafter, on October 4, 2000, a Petition to Set Aside Conservator, Appoint New Conservator, Provide an Accounting, and Issuance of a TRO or a Restraining Order was filed by Lester Lambert, Jr. (Lester) as next friend of Mrs. Bardwell. In this petition, Lester alleged that Randy was not acting in the best interest of Mrs. Bardwell in that Randy had violated the applicable statutes on numerous occasions regarding the handling of Mrs. Bardwell’s estate. Lester alleged, inter alia, that Randy had (1) failed to provide medical documentation that the establishment of the conservatorship was necessary; (2) failed to post bond as required by statute and the chancellor’s order; (3) failed to post a sufficient bond since Randy subsequently filed a petition alleging the value of Mrs. Bardwell’s estate to be in excess of $1.8 million; (4) failed to timely file an inventory of the real and personal property of the estate as required by statute and the chancellor’s order; (5) made expenditures from estate funds without court authority; (6) entered into a timber contract knowing that at a time when Mrs. Bard-well was capable of understanding business affairs, she had expressly stated to Randy she did not want her timber cut; (7) filed a petition requesting the chancellor to authorize Randy to “give away” $50,000 cash to himself, his three children, and a nephew of Mrs. Bardwell; (8) sought excessive conservator’s fees in the amount of $27,000; and (9) locked Mrs. Bardwell out of her home. Lester further prayed through the petition that a temporary restraining order (TRO) be issued thereby prohibiting further timber cutting on Mrs. Bardwell’s property; that a new conservator be appointed; that Randy be directed to render an accurate accounting for all monies expended and received on Mrs. Bardwell’s behalf; and, that Randy be required to pay for the cost of the proceedings, including attorney’s fees. Fifteen days after the filing of this petition, the chancellor entered an agreed TRO directing Randy to forthwith “cease and desist” from the cutting of timber on Mrs. Bard-well’s property.

¶ 6. Randy shortly thereafter filed a response generally denying the matérial allegations of Lester’s petition, and on November 14, 2000, Randy filed an inventory reflecting estate assets which included (1) a life estate interest in a home located on 120 acres in Amite County; (2) personal property located in the home; and (3) checking and money market accounts and certificates of deposit in the total amount of $360,459.69. On December 21, 2000, the chancellor entered an agreed order directing Randy, inter alia, to “go forward with the bonding process;” to not expend any conservatorship monies other than that necessary to appropriately attend to Mrs. Bardwell’s personal and medical needs; to give Mrs. Bardwell a key to her home; and, to not “remove, damage or destroy anything” on the property. In due course, Randy posted a corporate surety bond in the amount of $350,000 on January 19, 2001. On February 5, 2001, the chancellor entered an order appointing attorney Joseph Stinson (Stinson) as Guardian Ad Li-tem of Mrs. Bardwell. This same order directed Stinson to conduct an investigation . and report back to the court on whether Mrs. Bardwell was in current need of a conservator; whether Mrs. Bardwell was mentally capable of designating a conservator; and, whether Randy should remain as conservator and if not, who should be appointed as conservator of Mrs, Bardwell’s person and estate. Additionally, by this same order, the chancellor appointed Michael Faust (Faust), a certified public accountant, to investigate all financial matters of the conservatorship estate and report back to the court.

¶ 7. On March 21, 2001, Faust filed a report with the court thereby setting out the findings of his investigation and further making certain recommendations to the court. This report found, inter alia, that for the period of May 22, 2000 — to February 9, 2001, expenditures exceeded revenue by $41,565.59. Most notably, the report likewise revealed that during this same period covering less than nine months, Randy had received payments of $47,880.92.

¶ 8. On March 26, 2001, Stinson filed his First Report of Guardian Ad Litem which contained specific findings and recommendations. Suffice it to state here that the findings justified Stinson’s recommendations to the court that (1) Randy should be removed as conservator and be required to file an inventory and a final accounting as well as justify the conservator’s fee of $27,000; (2) the conservatorship process should be begun anew with the appointment of a new conservator; (3) a timber consultant should be employed on an hourly basis and not on commission; (4) that any sale of timber from Mrs. Bardwell’s property should be treated as a sale of real estate as far as seeking court approval for such sale; (5) that the newly appointed conservator should consider appointing an independent estate planning attorney for Mrs. Bardwell’s estate; (6) that the current holder of the timber contract should make an accounting as to timber thus far cut and monies received from the conser-vatorship estate; and, (7) that a fiduciary should be appointed to protect Mrs. Bard-well’s Louisiana property.

¶ 9. On April 2, 2001, an attorney on behalf of Mrs. Bardwell and Lester, filed a Motion for Removal of Conservator requesting that Randy be removed as conservator of Mrs. Bardwell’s person and estate. Although not filed with the clerk until April 3, 2001, the chancellor had signed and marked filed on March 80, 2001, an order in response to the reports filed by the CPA and Guardian Ad Litem. This order directed Randy to return monies representing unauthorized expenditures from estate assets; to retrieve from the timber consultant and deposit into the conservatorship account any monies held by the consultant and due the estate; and, to re-evaluate and document the $27,000 claim for conservator's fees. The same day a show cause order was entered by the chancellor thereby directing Randy to show cause, if any he could, as to why he should not be removed as conservator for Mrs. Bardwell. On April 5, 2001, the chancellor by order set a hearing date to determine if Randy should be removed as conservator of Mrs. Bardwell’s person and estate. Also on April 5, 2001, an amended petition to remove Randy as conservator was filed alleging, among other things, that Randy had been negligent and breached his fiduciary duty and that he misrepresented his fees. The amended petition further charged Randy’s conduct throughout his tenure as conservator as being not only in violation of numerous statutes, but also as exhibiting “reckless and callous disregard of his fiduciary obligations to his ward, thereby rendering the ward entitled to punitive damages.” In due course, Randy filed a one-page answer to the motion for removal and in this answer, Randy basically asserted that in performing his duties as conservator he had complied with all the applicable statutes and acted appropriately and in the best interest of Mrs. Bardwell. On the same day, Randy filed an answer to the amended petition denying the material allegations of that petition.

¶ 10. On May 16, 2001, Mrs. Bardwell, Michael Faust, and Martha Ann Powell, through counsel, filed a petition, in which the Guardian Ad Litem also joined, requesting the court to appoint Faust as the conservator of the estate of Mrs. Bardwell and Powell as the conservator of the person of Mrs. Bardwell. This petition also revealed that at a hearing on May 14, 2001, Randy, with counsel, chose to withdraw as the conservator of the person and estate of Mrs. Bardwell. By decree signed the same day, the chancellor granted the relief requested in the petition.

¶ 11. On June 14, 2001, Randy filed a typed log reflecting the date and time and service performed for the estate. Randy also filed a First Annual Accounting, detailing Mrs. Bardwell’s Net Income, Expense, and Asset Values. This accounting reflected the value of Mrs. Bardwell’s estate to be $ 1,712,433.78.

¶ 12. On July 23, 2001 the chancellor ordered Randy to return any money expended by him which was not specifically authorized by the court and to file documentation supporting his claim for conservator fees in the amount of $27,000. The court set a hearing for September 4, 2001.

¶ 13. On August 3, 2001, the Guardian ad Litem filed a response to the First Annual Accounting, alleging that Randy had not adequately documented fees he had paid himself. On August 15, 2001, the chancellor entered an order wherein he noted receiving the documentation regarding justification of the conservator fees and set a hearing for October 30, 2001. The chancellor hand-wrote on the order: “Randy Bardwell shall immediately comply with this Court’s prior order requiring re-payment of all fees not specifically authorized.”

¶ 14. By letter opinion and separate order, each dated November 2, 2001, and duly filed on November 9, 2001, the chancellor issued a detailed ruling as to Randy’s tenure as conservator of Mrs. Bard-well. The fourteen-page opinion contained a procedural history and findings of fact and conclusions of law. The chancellor found that Randy was entitled to a “reasonable and appropriate fee” of $4,385.55, as opposed to the $27,000.00 previously paid to him. The chancellor also found that Randy paid himself an additional $19,750.00 subsequent to entry of the order authorizing payment of the $27,000.00 conservator’s fee; therefore, the chancellor ordered that the additional conservator fee was without authority and must be repaid. A total of $42,426.95 was ordered to be repaid by Randy at 8 percent interest.

¶ 15. It is from the chancellor’s opinion and order of November 2, 2001, that Randy now appeals. Although the procedural history thus far given is not complete, we have set out as much as is necessary for the discussion of the issues before us.

STANDARD OF REVIEW

¶ 16. Upon a review of a chancellor’s findings of fact, we will not disturb the factual findings of a chancellor unless such findings are manifestly wrong or clearly erroneous. Bowers Window & Door Co. v. Dearman, 549 So.2d 1309, 1312-13 (Miss.1989). Whenever there is substantial evidence in the record to support the chancellor’s findings of fact, those findings must be affirmed. Denson v. George, 642 So.2d 909, 913 (Miss.1994) (citing Johnson v. Hinds County, 524 So.2d 947, 956 (Miss.1988); Culbreath v. Johnson, 427 So.2d 705, 707-08 (Miss.1983)).

DISCUSSION

I. WHETHER THE CHANCELLOR ERRED IN REFUSING TO RE-CUSE HIMSELF.

¶ 17. Randy asserts that the chancellor erred in failing to recuse himself after making the comment that “I made some mistakes by authorizing a fee that I did not have sufficient information on, and I did not look at close enough ... And in retrospect obviously I wish I hadn’t done that.” Randy alleges that the chancellor had become sufficiently involved in the case to warrant recusal because the chancellor confirmed the appointment of conservator, authorized him to enter into a timber management contract, authorized the payment of expenses of the conserva-torship, and authorized the $27,000 conservator’s fee. This Court disagrees with Randy’s logic.

¶ 18. The Code of Judicial Conduct, Canon 3 C(l) states, in pertinent part:

C. Disqualification.
(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.

¶ 19. A meticulous review of the record reveals absolutely nothing that would even remotely suggest that the chancellor should have recused himself in this case. We have held that the chancellor is the “ultimate guardian” of wards. Jackson v. Jackson, 732 So.2d 916, 920 (Miss.1999). The chancellor understood his role and concluded the discussion of the history of the case with the following remarks:

if Mr. Bardwell can justify those fees, then the court doesn’t have any problem approving them. I don’t think from what he has filed that that substantiates the $27,000 fee, and I think that it’s my responsibility to bring that into question and I’ve done that. So I don’t think it’s appropriate or necessary that the court be recused. In furtherance of that concern though and being careful and I think doing what’s appropriate under the law, I consulted with another chancellor who’s been serving probably four or five times longer than I have or in excess of 30 years and sought his learned, wise, and longstanding experience and got the benefit of his opinion that he thought that I was appropriate in going forward and hearing the matter.

¶ 20. In Bryan v. Holzer, 589 So.2d 648 (Miss.1991), we held that the chancellor did not abuse his discretion in refusing to recuse himself from a case in which he had limited ex parte contacts with a lawyer representing a party in that pending case. In Bryan, we explained the criteria judges should consider in recusal:

Whereas here, the conduct of a judge or chancellor is being examined under the dictates of a canon of the Code of Judicial Conduct, “the Canon enjoys the status of law such that we enforce it rigorously, notwithstanding the lack of a litigant’s specific demand.” Collins v. Dixie Transport, Inc., 543 So.2d 160, 164 (Miss.1989); Jenkins v. Forrest County General Hospital, 542 So.2d 1180, 1181 (Miss.1989); Jenkins v. State, 570 So.2d 1191, 1192 (Miss.1990). The standard by which this Court determines if a judge should have disqualified him or herself, is an objective standard under Canon 3. “A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality.” Rutland v. Pridgen, 493 So.2d 952, 954 (Miss.1986); Jenkins, 570 So.2d at 1192; Collins, 543 So.2d at 166. The presumption is “that a judge, sworn to administer impartial justice, is qualified and unbiased. To overcome the presumption, the evidence must produce a ‘reasonable doubt’ (about the validity of the presumption) [.]” Turner v. State, 573 So.2d 657, 678 (Miss.1990). When a judge is not disqualified under the constitutional or statutory provisions, “the propriety of his or her sitting is a question to be decided by the judge and is subject to review only in case of manifest abuse of discretion.” Ruffin v.State, 481 So.2d 312 at 317 (Miss.1985) (quoting McLendon v. State, 187 Miss. 247, 191 So. 821, 823 (1939)); Buchanan v. Buchanan, 587 So.2d 892 (Miss.1991); Turner, 573 So.2d at 677.

Bryan, 589 So.2d at 654.

¶ 21. In Collins, we reversed a circuit court’s order enforcing an oral settlement agreement reached on the day of trial when the circuit judge was purportedly a fact witness concerning the disputed facts going to the very heart of the issue of whether to enforce the settlement agreement. We directed that upon remand, the circuit judge should recuse himself from further participation in the case. Collins v. Dixie Transp., Inc., 543 So.2d 160, 167 (Miss.1989). We have also found that re-cusal was warranted where the chancellor had a pecuniary intérest in the outcome of the case. Stephens v. Mayor & Bd. of Aldermen of City of Natchez, 261 So.2d 486 (Miss.1972).

¶ 22. Turning to the relevant facts of the case before us today, we are firmly convinced that there was absolutely no real or perceived reason for the chancellor to recuse himself. Randy argues that the chancellor’s recusal was warranted when the chancellor had become sufficiently involved by his presiding over the case, confirming Randy’s appointment as conservator, authorizing him to enter into a timber management contract, authorizing him to pay expenses of the conservatorship, and authorizing the $27,000 conservator’s fee; however, this argument is without merit. Randy seems to think that the chancellor had perhaps prejudged his case when he admitted making mistakes in authorizing a fee without sufficient information and in turn stated that “I wish I hadn’t done that.” However the chancellor further found that if Randy could subsequently justify the fees, he “[didn’t] have any problem approving them.”

¶ 23. If we were to declare today on the facts of this case that the chancellor had “sufficient involvement” which warranted recusal, we would be establishing a standard whereby all chancellors would have to recuse themselves from all matters tried in their courts wherein they had previously heard anything involving the case. To carry this scenario out further, if “substantial involvement” in a case (or a party) were legitimate grounds for recusal, a circuit judge or county judge with five indictments on the same defendant would have to get four other judges involved in presiding over the remaining cases because of “substantial involvement” with the criminal defendant in the first case. Obviously, this is but one example of numerous absurdities which would result from such a declaration.

¶ 24. After all, when we get right down to it, all the chancellor was doing once he realized a mistake was made was reacting in a manner inherently ingrained into our chancellors to do equity and to protect the ward and her estate. Over seventy years ago, this Court informed our chancellors that they were “superior guardians” over persons under a disability, and that our chancery courts “must take all necessary steps to conserve and protect the best interest” of the wards of the court. Union Chevrolet Co. v. Arrington, 162 Miss. 816, 138 So. 593, 595 (1932).

¶ 25. Keeping in mind the Union Chevrolet and Jackson mandates and the above discussion regarding recusal, we find no basis for the chancellor’s recusal in the case sub judice. A close review of the entire record in this case reveals that the learned chancellor was astutely aware of his constitutional oath, his duty to the ward, and his ethical responsibilities under the Code of Judicial Conduct.

¶ 26. Therefore, this issue is without merit.

II. WHETHER THE CHANCELLOR ERRED IN FINDING RANDY’S FEES WERE INAPPROPRIATE AND UNREASONABLE.

¶ 27. In addressing this assignment of error, we turn to our statutes and rules. Miss.Code Atm. § 93-13-35 (Rev.1994) states:

The chancery court or chancellor in vacation, may, at discretion, settle the sum to be expended in the maintenance and education of a ward, having regard to his or her station, future prospects and destination; and may allow expenditures in excess of the income of the estate, and, if necessary, may order sale of so much of the personal estate as may be necessary to meet such expenditures. And if the personal estate and the rents and profits of the real estate be not sufficient for the maintenance and education of the ward, the court may, on investigation, decree the sale of such part of the real estate of the ward as may be necessary for the purpose; but if it be more advantageous to the ward, the court may order the sale of real estate in preference to the sale of personal' property. No guardian shall make any expenditure in excess of his ward’s income for the ward’s support and education without a previous order of the court or chancellor authorizing the same.

(emphasis added). Miss.Code Ann. § 93-13-38(2) (Supp.2002), as amended in 1996, states, in pertinent part:

It shall be the duty of the guardian of wards defined by Section 1-3-58, Mississippi Code of 1972, to improve the estate committed to his charge, and to apply so much of the income, profit or body thereof as may be necessary for the comfortable maintenance and support of the ward and of his family, if he have any, after obtaining an order of the court fixing the amount....

(emphasis added). Miss.Code Ann. § 93-13-259 (Rev.1994) states:

Should the court appoint the conservator of the property or person or property and person of the subject party, the said conservator shall have the same duties, powers and responsibilities as a guardian of a minor, and all laws relative to the guardianship of a minor shall be applicable to a conservator.

We find further guidance in the Uniform Chancery Court Rules (UCCR). UCCR 6.11 states:

Every petition by a fiduciary for the allowance of commissions, or for compensation for extra services and expenses, shall show the total amount of the estate coming into his hands, the total amount disbursed, the balance on hand, the nature and extent of the service rendered and expense incurred by him, and the total amount previous allowed to him on account thereof. Fees for fiduciaries and attorneys shall not be based on the value of any real property.

(emphasis added).

¶28. A review of the record reveals that the chancellor did not in any way abuse his discretion in finding that Randy’s conservator’s fee was both inappropriate and unreasonable. Randy first filed his petition for appointment as conservator on May 5, 2000, and he was appointed conservator of Mrs. Bardwell’s person and estate on May 11, 2000. His first act as conservator was to file a petition to enter into a timber management contract, knowing that Mrs. Bardwell was opposed to the cutting and selling of her timber. On August 28, 2000, he filed a petition to disburse gifts of $10,000 each to himself, his three children, and Lester Lambert. He then filed a ten-year Forest Management Plan on September 1, 2000, with the stated purpose being “to protect and enhance each acre in producing the most in wildlife habitat and income for landowners to enjoyment (sic).” On September 1, 2000, the chancellor by decree authorized Randy to enter into the timber management contract, which decree contained the following provision:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that the Conservator/Successor Trustee be and he is authorized to pay such expenses and fees that have accrued to the con-servatorship and to continue to make such payments as are deemed proper and to account therefore annually, including the conservator’s fee to one of $27,000.00.

(emphasis added). The italicized portion of the decree was handwritten.

¶ 29. On September 8, 2000, Randy filed a nine-page handwritten log of the time he spent working on the estate. The log detailed the date, time, and the tasks performed. He billed each hour at $125, which came out, according to his log, to $27,062.50. The next document that follows in the record is the Petition to Set Aside Conservator, Appoint New Conservator, Provide and Accounting, and Issuance of a TRO or a Restraining Order, filed by Mrs. Bardwell and Lester G. Lambert, Jr. An Agreed Temporary Restraining Order was filed on October 19, 2000, wherein it was ordered that Randy agreed to immediately cease and desist from cutting timber from Mrs. Bardwell’s land. An inventory, filed on November 14, 2000, revealed the assets of the ward to consist of a life estate interest in Mrs. Bardwell’s home and property consisting of 120 acres in Amite County, personal property in and about the home, a $345,446.77 balance in an AmSouth Premium Money Market account, and a $15,012.92 balance in an Am-South checking account.

¶ 30. We find based on the record that the chancellor was in error in initially authorizing the $27,000 conservator’s fee as such award was clearly unreasonable. Additionally, there is nothing in the record which convinces us Randy’s actions comported with the provisions of Miss.Code Ann. §§ 93-13-35 or 93-13-38. Nor was the petition accompanied by proof of the assets in the conservatorship and the inventory was not filed until two months later. This filing of inventory was beyond the 60-day deadline ordered by the chancellor and beyond the three-month deadline mandate by Miss.Code Ann. § 93-13-33.

¶ 31. Although Randy now argues that the estate was valued at $1,712,433.78, the first evidence in the record of this figure is the First Annual Accounting filed on June 14, 2001. According to Randy’s accounting, the estate consisted of real property assessed at a value of $1,000 per acre ($717,200), the estimated value of timber from the land ($677,000), and $318,233.78 in bank checking and money market accounts and certificates of deposit. Accepting the uncut timber as real property, the total value of the real property in the estate, according to Randy, was $1,394,200. UCCR 6.11 forbids payment of conservator’s fees based on the value of real property. Rule 6.11 expressly provides in pertinent part that “[flees for fiduciaries and attorneys shall not be based on the value of any real property.” Randy likewise violated the provisions of UCCR 6.11 in not properly documenting via an appropriately filed petition his justification for receiving a $27,000 conservator’s fee.

¶ 32. Nor was the matter ever properly submitted to the chancellor. The record does not reflect that the chancellor had the statutorily-mandated filings before him to make a determination as to the conservator’s fee. The only mention of the assets of the estate before the entry of the order authorizing the conservator’s fee is Randy’s petition to distribute $50,000 from Mrs. Bardwell’s estate to himself, his three children, and Leslie. That petition reflects the estate to be valved at $1,851,426.

¶ 33. Further, Miss.Code Ann. § 93-13-35 requires that “[n]o guardian shall make any expenditure in excess of his ward’s income for the ward’s support and education without a previous order of the court or chancellor authorizing the same.” There was no proper documentation before the court detailing the income of the ward, and, as such, the authorization of the conservator’s fee was in error.

¶34. For these reasons, we find that the chancellor erred in awarding conservator’s fees in the amount of $27,000; however, because the chancellor subsequently entered an order which remedied the earlier mistake, we affirm that order of the chancellor awarding a conservator’s fee in the amount of $4,385.55 and requiring repayment to the estate for the difference.

III. WHETHER THE CHANCELLOR ERRED IN FINDING RANDY HAD RECEIVED UNAUTHORIZED FUNDS.

¶ 35. The third assignment of error is whether the chancellor erred in his finding that additional fees were paid without court authority. Randy relies on the chancellor’s order of September 1, 2001, granting additional payments as “expenses” envisioned by the order:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that the Conservator/Successor Trustee be and he is authorized to pay such expenses and fees that have accrued to the con-servatorship and to continue to make such payments as are deemed proper and to account therefore annually, in- eluding the conservator’s fee to one of $27,000.00.

However, after the entry of that order, Randy paid himself an additional $19,750 over a two-month period. Using the same reasoning as above, these additional payments are in violation of Miss.Code Ann. §§ 93-13-35 and 93-13-38, as well as UCCR 6.11. The record reveals no request to the Court for payment of these funds. In an analogous situation this Court held that a chancellor did not abuse her discretion by removing a conservator who, inter alia, did not seek court approval before making certain expenditures. In re Mathews, 633 So.2d 1038 (Miss.1994). We held that the conservator’s failure to seek court approval before making expenditures was “[m]ueh more serious” than his failure to make an annual accounting. Miss.Code Ann. § 93-13-38 “requires that a court order fixing the amount to be spent for the care and maintenance of the ward be obtained prior to making such expenditures.” Id. at 1039.

¶ 36. Not only was the chancellor totally free of error in finding that Randy had received unauthorized funds which mandated his repayment to the estate, the learned chancellor was eminently correct.

CONCLUSION

¶ 37. The chancellor clearly did not abuse his discretion in refusing to recuse himself from this case.- Once the chancellor realized that an error had been committed in authorizing Randy to receive a $27,000 conservator’s fee from Mrs. Bard-well’s estate, he proceeded to fairly and impartially revisit the issue to determine the appropriate action to take while at all times appropriately preserving estate assets until final resolution of this issue. To this end, the chancellor proceeded to meticulously consider the issues before him. In due course, the chancellor entered his fourteen-page opinion and order consistent therewith which found that Randy was entitled to a “reasonable and appropriate fee” of $4,385.55, as opposed to the $27,000, and that additional fees of $19,750 Randy paid himself were without authority and must be repaid. Thus the chancellor appropriately ordered Randy to reimburse Mrs. Bardwell’s estate the sum of $42,426.95.

¶ 38. The activity in this conservator-ship as revealed by the record certainly is not indicative of how a conservator should handle the affairs of a ward. In fact the original conservator’s actions in this case are indicative of what a conservator should not do in properly representing a ward. Conservators and guardians who might be of an inclination similar to that of the original conservator in this case should not expect mercy from our chancellors or the appellate courts.

¶ 39. Finding no reversible error, we affirm the order of the Chancery Court of Amite County, Mississippi.

¶ 40. AFFIRMED.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, DIAZ AND GRAVES, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . The Mary Lambert Bardwell Living Trust was established in 1991. Mrs. Bardwell, the ward of the underlying conservatorship, was named as both the Trustor and Trustee. The trust agreement provided that if Mrs. Bard-well should become unable to serve as Trustee, I've Jewell Lambert, Randy, and Carolyn Powell, respectively, would serve as Successor Trustees. In the petition to appoint a successor trustee, Randy alleged that Mrs. Bardwell could no longer serve as Trustee by virtue of the conservatorship, that I’ve Jewell Lambert was deceased, and that Randy should therefore be appointed as the Successor Trustee.

      . Although there is no order in the record indicating that the petition was denied, in his opinion of November 2, 2001, the chancellor acknowledged that the petition was denied, but that counsel simply never submitted an order to the court.

      . This detailed 13-page report reflects the Guardian Ad Litem’s recognition of his duties and responsibilities to both Mrs. Bardwell and the court. We commend his diligent performance of these duties and responsibilities and further commend this report as a model for future court-appointed guardians.

      . The actual amount was $27,062.50.

      . Reference is made to the Code of Judicial Conduct as it existed at all pertinent times relating to the trial court proceedings. A new Code of Judicial Conduct was adopted by this Court on April 4, 2002. Among other things, the new Code of Judicial Conduct contains gender-neutral language. Other than the gender-neutral changes, the language of the above quoted section remains basically unaltered in the current Code, and may now be found in Canon 3 E(l)(a).

        . So that there can no misunderstanding, the chancellor likewise acted appropriately in consulting another chancellor. While Canon . 3 A(4) of the former Code of Judicial Conduct prohibited a judge's ex parte communication concerning a pending or impending proceeding, the Commentary stated that this prohibition did not preclude a judge "from consulting with other judges, or with court personnel whose function is to aid the judge in carrying out his adjudicative duties.” Corresponding language in the current Code of Judicial Conduct may be found in Canon 3 B(7)(c).

      . Miss.Code Ann. § 93-13-33 (Rev.1994) states:
      Every guardian shall, within three months after his appointment, return to the court, under oath, a true and perfect inventory of the estate, real and personal, and of all money or other things which he may have received as the property of his ward; and he shall return additional inventories of whatever he may subsequently receive. And he shall annually return an inventory, under oath, of the increase of the estate, if there be any. A guardian who shall fail to return inventories may be removed and his bond put in suit, unless he can show cause for the default.

      . Again, we keep in mind that in order to arrive at this sum, we must accurately reflect that the $27,000 figure referred to throughout this opinion is actually $27,062.50. Thus $27,062.50 plus $19,750.00 minus $4,385.55 equals the sum of $42,426.95.


source: Caselaw Access Project

author: WALLER, Justice, for the Court.

license: Public Domain

text:
    Josh Kirk DAVIS v. STATE of Mississippi.
    No. 2002-KA-00747-SCT.
    Supreme Court of Mississippi.
    July 17, 2003.

      Wesley Thomas Evans, Ridgeland, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    BEFORE McRAE, P.J., WALLER and COBB, JJ.
   WALLER, Justice, for the Court.

¶ 1. Josh Kirk Davis was indicted and convicted of murder in the Yazoo County Circuit Court for the shooting death of William “Bubba” Arnold. Finding no reversible error, we affirm the conviction and sentence of life imprisonment.

FACTS AND PROCEDURAL HISTORY

¶ 2. During the night of July 29, 2000, and the early hours of July 30, 2000, William Arnold, 15 year old Josh Kirk Davis, Blake McNeer, Megan Smith, Michelle Campbell, and Nicki Campbell were at a deer camp in rural Yazoo County, Mississippi, fishing and swimming in a nearby lake. While Davis, McNeer, Smith, and Michelle Campbell were swimming in the lake, the 46-year-old Arnold allegedly made unwelcome sexual advances toward 17-year-old Nicki Campbell.

¶ 3. Upon learning of Arnold’s advances toward Nicki Campbell, McNeer confronted Arnold, and Arnold brandished a shotgun and demanded the group leave the property. The group then went to Michelle Campbell’s house where, a little later, Mike Campbell, who is Michelle’s father, and Clifton' Campbell, who is Mike’s brother and Nicki’s father, returned from a night out. Shortly thereafter, Michelle and Davis informed Clifton of what had occurred earlier between Arnold and his daughter, Nicki. Clifton became enraged and left Mike Campbell’s house with Davis. In the meantime, Megan and Michelle had left the house and returned to find Clifton and Davis gone.

¶ 4. Clifton and Davis traveled to the camp where, according to Davis, Clifton pointed a shotgun at him and ordered him to fire into the camp cabin where Arnold was sleeping. Davis took the shotgun and, with Clifton pulling aside the blinds in the door as the door’s glass was missing, fired three shots. Davis admitted to firing into the camp cabin in his third statement to police. The shotgun blasts struck Arnold in the face, producing massive injuries and killing him instantly.

¶ 5. After Megan and Michelle returned to find that Clifton and Davis had already left Mike Campbell’s house, they drove out to the camp where they found Clifton and Davis running from the camp with Clifton holding a shotgun. The two girls then left and returned a short time later to Mike Campbell’s house. Michelle testified that when she questioned Davis about what happened, he said, “I shot him. I shot that mother * * * *er three God damn times.”

¶ 6. Megan, Michelle and Davis returned to the camp cabin where they found Arnold lying on the couch. The three returned to Mike Campbell’s house, and Davis repeatedly professed his innocence.

¶ 7. Both Davis and Clifton were charged with capital murder with the underlying felony being burglary. After severance, Davis was tried alone and convicted of murder less than capital in a three-day trial. He was subsequently sentenced to life imprisonment. Davis appeals, arguing the trial court erred in refusing to grant a manslaughter instruction, erred in admitting into evidence the gruesome photographs of Arnold’s body, erred in refusing to grant a directed verdict, and that co-counsel rendered ineffective assistance of counsel.

DISCUSSION

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING TO GRANT A MANSLAUGHTER INSTRUCTION BASED UPON THE EVIDENCE.

¶ 8. Davis argues that the trial court erred in denying a manslaughter instruction because the killing occurred in the heat of passion in that Arnold’s sexual advances toward Nicki supposedly enraged both Davis and Clifton. The requested manslaughter instruction, D-8, provided, in pertinent part:

If you find from the evidence in this case beyond a reasonable doubt that JOSH DAVIS and no other person on or about July 30, 2001 [actually 2000] in YAZOO County acting in the heat of passion or with culpable negligence effect the death of William Arnold, then you shall find the defendant guilty of manslaughter,

(emphasis in original).

¶ 9. A defendant is entitled to have jury instructions given presenting his theory of the case, but a proposed instruction can be refused if it incorrectly states the law, is fairly covered elsewhere in other instructions, or is without foundation in the evidence. Poole v. State, 826 So.2d 1222, 1230 (Miss.2002); Jones v. State, 797 So.2d 922, 927 (Miss.2001); Adams v. State, 772 So.2d 1010, 1016 (Miss.2000); Higgins v. State, 725 So.2d 220, 228 (Miss.1998).

¶ 10. In the instant case, there was no factual basis for a manslaughter instruction. The State is correct that any initial passions had cooled and that deliberation and malice had set in. After the youths had returned from the camp, Nicki and McNeer, the person who confronted Arnold about his advances toward Nicki, each went to sleep. Mike and Clifton did not arrive at the house until approximately 30 to 45 minutes later, and the drive back to the camp took about an additional 15 to 20 minutes. Furthermore, Arnold was killed while he was asleep. Davis was also not related by blood to Nicki and Clifton. Given the amount of time that transpired, any heat of passion, assuming such was even present to begin with, cooled into deliberation and malice. This assignment of error is without merit.

II. WHETHER THE TRIAL COURT ERRED BY ADMITTING CERTAIN PHOTOGRAPHS OF THE CRIME SCENE.

¶ 11. Davis next argues that photographs of Arnold were unduly gruesome and served only to prejudice and inflame the jury. Four of the disputed photographs depicted the interior of the camp cabin and the location and relation of Arnold’s body to the interior and blood splatters on the wall and floor. Two other photographs were taken during the autopsy each of which depict the injuries to each side of Arnold’s face and head. The State counters that the trial court correctly admitted the photographs because they showed the nature and extent of the injuries Arnold sustained and the circumstances surrounding the incident.

¶ 12. We will not reverse a trial court’s decision to admit photographs of a murder victim’s body unless the court abused its discretion. Simmons v. State, 805 So.2d 452, 485 (Miss.2001) (citing Gray v. State, 728 So.2d 36, 57 (Miss.1998)). We have likewise held that a trial judge’s discretion to admit such photographs is nearly limitless regardless of the gruesomeness and repetitiveness. Woodward v. State, 726 So.2d 524, 535 (Miss.1997). Photographs of a victim have evidentiary value where they “1) aid in describing the circumstances of the killing and the corpus delicti; 2) where they describe the location of the body and cause of death; and 3) where they supplement or clarify witness testimony.” Westbrook v. State, 658 So.2d 847, 849 (Miss.1995) (citations omitted). See also Neal v. State, 805 So.2d 520, 524 (Miss.2002); Jones v. State, 776 So.2d 643, 652 (Miss.2000).

¶ 13. Here, there is no indication that the prejudicial value of the photographs outweighed their probative value. They served the legitimate evidentiary purpose of depicting the angles and trajectories of the gunshots about which Dr. Steven Hayne, the forensic pathologist who performed the autopsy, testified, and they did not to inflame the jury. See, e.g., McDowell v. State, 813 So.2d 694, 699 (Miss.2002); Stevens v. State, 808 So.2d 908, 926 (Miss.2002); Drake v. State, 800 So.2d 508, 515-16 (Miss.2001); Milano v. State, 790 So.2d 179, 191 (Miss.2001). This assignment of error is without merit.

III. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT A DIRECTED VERDICT.

¶ 14. Davis argues the State never proved he was involved in the murder of Arnold. He farther argues that there was no physical evidence placing him at the crime scene.

¶ 15. Motions for directed verdict challenge the sufficiency of the evidence supporting the verdict. Bridges v. State, 807 So.2d 1228, 1231 (Miss.2002); Smith v. State, 802 So.2d 82, 86 (Miss.2001); Holmes v. State, 798 So.2d 533, 537 (Miss.2001); Mallard v. State, 798 So.2d 539, 542 (Miss.2001). When passing upon such a motion, all of the State’s evidence is accepted as true with inferences that can be drawn therefrom, and if the evidence is sufficient to support the verdict of guilty, the motion for directed verdict must be denied. Hill v. State, 774 So.2d 441, 447 (Miss.2000); Fleming v. State, 732 So.2d 172, 182 (Miss.1999); Stevenson v. State, 733 So.2d 177, 183 (Miss.1998); Mamon v. State, 724 So.2d 878, 881 (Miss.1998); Wall v. State, 718 So.2d 1107, 1111 (Miss.1998).

¶ 16. Here, there was sufficient evidence to support the verdict. Davis admitted to law enforcement in his third statement on August 1, 2000, that he fired three shots into the camp cabin where Arnold was sleeping while Clifton held the blinds aside. Both Megan Smith and Michelle Campbell saw Davis running from the camp with Clifton, and both testified he told them he fired the three shots. Michelle also testified that Josh stated, “I shot him. I shot the mother f* *ker three God damn times.” This assignment of error is without merit.

IV. WHETHER CO-COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL DURING CLOSING BY REVEALING STATEMENTS IN VIOLATION OF THE ATTORNEY-CLIENT PRIVILEGE.

¶ 17. Davis’s appellate and trial counsel, Wesley Evans, argues that statements made by trial co-counsel Michael Rushing violated Davis’s attorney-client privilege and totally contradicted Davis’s trial strategy that Clifton fired the fatal gunshots. The pertinent statements are as follows:

Now we’ve got Josh’s three statements, and y’all can read them for yourself. Y’all are intelligent folks, and I want you to do that, especially the third one where Josh incriminates himself at least to the extent of saying he fired the three shots, but, at the same time, he provides his defense, which the State cannot counter. They have no testimony or evidence to counter the defense that the gun was put to his head and he was threatened with his life, but I’ve got a statement here that’s not into evidence, but it’s my work product, and I’m going to read it to you. It’s very brief....
THE COURT: Five minutes.
MR. RUSHING: Okay. It’s from August 29th, 2000. Interview: “Josh Davis at Holmes County jail.” These are my notes on my initial full interview with Josh.
[DA] POWELL: Your honor, we’re going to object to Mr. Rushing reading his notes from an interview. There’s nothing in evidence about that.
THE COURT: Sustained.
MR. RUSHING: I can read my statement, my closing statement.
THE COURT: Let’s approach the bench.
(AT BENCH OUT OF HEARING OF JURORS)
THE COURT: You can’t read anything that is not a part of the evidence that the defense—
MR. RUSHING: I can’t talk about it?
THE COURT: Not unless it came out as evidence in this trial.
MR. RUSHING: It’s exactly the same as his third statement.
THE COURT: If it is the same, then you can testify, but you can’t testify if this is something that came out of an interview that you had with him, because it’s not in evidence.
MR. RUSHING: Okay. I understand.
(END OF BENCH CONFERENCE)
MR. RUSHING: Well, I’m not going to read you the statement, but suffice it to say that I have been representing Josh since less than a month after this unfortunate occurrence, and, at no time, has he given me varying versions of what happened. And at no time has he waiv-ered from the contention that Clifton Campbell put that shotgun to his head and said, “Boy, if you don’t shoot up in there, I’m going to blow your head off.” And he was drunk and he was mean, and he meant it, at least to Josh.

¶ 18. We outlined the standards to be applied when addressing issues of the ineffective assistance of counsel in Holly v. State, 716 So.2d 979, 989 (Miss.1998):

In order to prevail on a claim of ineffective assistance of counsel, a defendant must prove that his attorney’s performance was deficient, and that the deficiency was so substantial as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Witcher v. State, 479 So.2d 710, 713 (Miss.1985); Stringer v. State, 454 So.2d 468, 477 (Miss.1984). This Court looks at the totality of the circumstances to determine whether counsel’s efforts were both deficient and prejudicial. Carney v. State, 525 So.2d 776, 780 (Miss.1988); Read v. State, 430 So.2d 832 (Miss.1983). “Judicial scrutiny of counsel’s performance [is] highly deferential.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. There is a strong but rebuttable presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Carney, 525 So.2d at 780; Gilliard v. State, 462 So.2d 710, 714 (Miss.1985). Only where it is reasonably probable that but for the attorney’s errors, the outcome of the trial would have been different, will we find that counsel’s performance was deficient. Dickey v. State, 662 So.2d 1106, 1109 (Miss.1995); Reed v. State, 586 So.2d 1336, 1339 (Miss.1988).

¶ 19. The State argues that Davis has failed to demonstrate a deficiency in his counsels’ overall performance sufficient to undermine the integrity of his trial and conviction. We agree. There was testimony that Davis admitted shooting into the camp cabin and a confession stating likewise. Rushing’s statements during closing presented an alternative defense theory, namely, that Clifton put the shotgun to Davis’s head and ordered him to fire. There was no deficiency and no concomitant prejudice. This assignment of error is without merit.

CONCLUSION

¶ 20. Finding no reversible error, we affirm the judgment of the Yazoo County Circuit Court.

¶ 21. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

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

      . As stated before, the window in the door to the camp was missing its glass.


text:
    Robert Lester COX v. STATE of Mississippi.
    No. 2001-KA-01427-SCT.
    Supreme Court of Mississippi.
    July 17, 2003.

      David G. Hill, David L. Minyard, Oxford, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory, Smith Murphey, attorneys for appellee.
   ON MOTION FOR REHEARING

WALLER, Justice, for the Court.

¶ 1. The motion for rehearing is denied. The prior opinion is withdrawn, and this opinion is substituted therefor.

¶ 2. This appeal involves a tragic tale of adultery, jealousy and murder. Robert Lester Cox’s wife Marijo (“Jo Jo”) had been involved in a romantic relationship with Charles David Rowland for ten years when Rowland was killed. When Rowland, who was always punctual, did not appear for work at the United States Post Office in Charleston, Tallahatchie County, Mississippi, on April 19, 1999, his supervisor called Jo Jo. That the supervisor first called Jo Jo shows that her relationship ■with Rowland was well known in the community.

¶ 3. Jo Jo and a friend left their work at the Regional Mental Health Center and drove to Rowland’s property out in the county. They found Rowland’s body lying by the Subaru station wagon which he used for his mail route. Law enforcement officials and emergency medical personnel were called, with law enforcement arriving first and securing the area with yellow crime scene tape. The top of Rowland’s head had been blown off. A sawed-off 12-gauge pump shotgun lay by Rowland’s body.

¶ 4. Because of the wide knowledge of the affair, the sheriff immediately suspected that Cox had killed Rowland and commenced an extensive investigation. Approximately nine months after Rowland’s death, Cox was indicted in the Circuit Court of the First Judicial District of Tal-lahatchie County, Mississippi, for murder. At the three-week-long trial, Cox advanced the theory that Rowland had committed suicide. Many witnesses testified, often in conflict with other witnesses’ testimony. The jury rejected the suicide defense and convicted Cox, who was then sentenced to life imprisonment.

¶ 5. On appeal Cox raises five issues pertaining to the circumstantial evidence nature of the State’s case against him, the sufficiency of the evidence, the denial of a motion for continuance, an evidentiary ruling which admitted hearsay testimony, and the State’s remarks during closing argument. In an unusual, but authorized, move, the State has filed a cross-appeal, raising issues about a computer-animated re-enactment shown to the jury and the admission of Rowland’s medical records. We affirm the conviction and sentence.

DISCUSSION

A. ISSUES RAISED BY COX ON DIRECT APPEAL

I. Whether the State, in a case wholly based upon circumstantial evidence, failed to meet its burden of proof when it failed to exclude the reasonable hypothesis that David Rowland committed suicide.

¶ 6. The State’s case was based purely upon circumstantial evidence. There was no direct evidence of Cox’s involvement in Rowland’s death, and Cox did not make any statements to law enforcement officers. The State established motive by testimony that Jo Jo had a long-term affair with Rowland. It established opportunity by showing, through the testimony of several witnesses, that Cox had been “scouting” the area where Rowland lived for several days prior to the shooting, that Cox would have been able to enter and exit Rowland’s property without being detected by cutting across the Stubblefield and Buntin properties, that the cigarette butt found on Rowland’s property proved that Cox had “staked out” Rowland’s cabin, and that Cox had time after the shooting to arrive at the Co-Op where he worked by 7:00 a.m. Finally, the State proved that the sawed-off shotgun which was used to kill Rowland belonged to Cox.

¶ 7. Cox contends that the guilty verdict could not rest on this circumstantial evidence because he presented the alternative theory of suicide which was a reasonable hypothesis of his innocence that could not be excluded. Cox presented evidence that Rowland had been depressed and was taking an antidepressant, that the eyewitnesses’ identifications of Cox’s truck were not positive, that the “hard contact” nature of the gunshot wound could not have occurred unless Rowland himself was holding the gun to his head, that Cox could not have killed Rowland and arrived at his work place within the time frame advanced by the State, that Cox had loaned the sawed-off shotgun to someone else prior to the shooting and had not had possession of the gun in years, and that no blood was ever found on Cox, his clothing, his shoes, or his vehicle. Cox further supports his argument by stating that the forensic pathologist who conducted Rowland’s autopsy could not rule out suicide. Cox called three expert witnesses who testified that a bloodstain analysis, gunshot reconstruction and death scene reconstruction showed that Rowland committed suicide, that Rowland was at very high risk for committing suicide, and that one of the side effects of the antidepressant Rowland was taking could cause him to attempt suicide. Cox claims that his wife Jo Jo either planted the cigarette butt or emptied the contents of her ashtray on Rowland’s property.

¶ 8. To sustain a conviction on circumstantial evidence, every other reasonable hypothesis of innocence must be excluded. “[D]irect evidence is unnecessary to support a conviction so long as sufficient circumstantial evidence exists to establish guilt beyond a reasonable doubt.” Neal v. State, 805 So.2d 520, 526 (Miss.2002) (quoting Underwood v. State, 708 So.2d 18, 35 (Miss.1998) (quoting Conner v. State, 632 So.2d 1239, 1252 (Miss.1993), overruled on other grounds, Weatherspoon v. State, 732 So.2d 158 (Miss.1999))). “Circumstantial evidence need not exclude every ‘possible doubt,’ but only every other ‘reasonable’ hypothesis of innocence.” Neal, 805 So.2d at 526 (quoting Tolbert v. State, 407 So.2d 815, 820 (Miss.1981)). “Each case must be determined from the circumstances shown in the testimony and the facts must consistently point to but one conclusion-guilt.” Neal, 805 So.2d at 526 (quoting Hilliard v. State, 749 So.2d 1015 (Miss.1999)).

¶ 9. In support of his argument Cox cites Steele v. State, 544 So.2d 802, 807-08 (Miss.1989), where we reversed a conviction based solely upon circumstantial evidence. Steele was caring for a small child who died from massive head injuries. The State’s theory was that Steele physically abused the child, causing his death; Steele’s theory was that the injuries were caused when the child fell out of the bed. No one but Steele was present at the time the injuries were sustained. Physical evidence did not support either theory. Five physicians testified that the child’s injuries were inconsistent with Steele’s theory. One physician testified that the injuries could not have been sustained by a fall from a bed. Another physician testified that, while Steele’s theory was not pro ba-ble, it was possible. We held that the State proved only that the child’s injuries were probably not caused by a fall from a bed, and that the State failed to prove Steele’s guilty because it did not exclude the possibility that the injuries were caused by a fall. The evidence was “legally insufficient to establish anything more than a probability of guilty and did not ‘invest mere circumstances with the force of truth.’ ” Id. at 809.

¶ 10. Here, the State established motive and opportunity. Cox made no attempt to impeach evidence of the existence of his wife’s affair with Rowland or that he knew his wife was having an affair with Rowland. Other unimpeached testimony was that within a week or two of Rowland’s death, Cox asked several people for the location of Rowland’s property or the Stubblefield property, and Cox engaged in threatening behavior to Rowland when he stood outside Rowland’s apartment with a gun. Cox’s wife had also asked him for a divorce, which he had refused to give her.

¶ 11. Cox complains that the death scene was cleaned up before investigators could collect measurements of tire tracks, fingerprints and blood spatter patterns. This claim is addressed in further detail in Issue III below. However, even though this evidence was not available, Cox ignores ample physical evidence at the scene which belies a suicide theory. Before the shooting, Rowland had gotten up, eaten breakfast, dressed, fixed his lunch and gathered up garbage to take to town for disposal. Immediately preceding the shooting, Rowland was loading an ice chest in his car with a bottle of frozen water. While he was loading the ice chest, he set a cup of coffee on the roof of the car. The bag of garbage and the lunch bag were found between Rowland’s body and the car. Crediting this evidence and all reasonable inferences most favorable to the State, we find that the jury could reasonably exclude the hypothesis that Rowland committed suicide. See, e.g., McDonald v. State, 454 So.2d 488, 493 (Miss.1984).

¶ 12. Some of the evidence presented was contradicted, but, of course, the jury assigns credibility. A Winston cigarette butt was found behind a bale of hay. It had been put out by someone stepping on it. If Cox stood behind the bale of hay, he would have a clear view of Rowland’s cabin. Cox had bought a pack of Winstons at a convenience store between 4:00 and 4:30 a.m. that morning. Testing showed that Cox’s DNA was on the cigarette. Jo Jo testified that she routinely emptied her car’s ashtray on Rowland’s property, but cigarettes put out on an ashtray are usually stubbed out, not stepped on. And even though Cox’s DNA was on the cigarette, there was no evidence of how old the cigarette butt was.

¶ 13. A trail of clues portrayed a possible route used by Rowland’s killer to carry out the murder. An impression in grass on neighboring property showed that a vehicle had been parked there. Dirt was found on a metal gate between the Rowland and the Buntin properties and on a barbed wire fence between the Buntin and Stubblefield properties. A boot print was found on the Stubblefield property. An expert testified that the overall size and shape of the print was consistent with the overall size and shape of the bottom of Cox’s boot. Because there was some distortion of the details, he was not able to observe any individual characteristics. He therefore testified that the boot could not be excluded as the source of the print. He further stated that he could not reach a definite conclusion that Cox’s boot either made the print or could not have made the print.

¶ 14. However, Cox’s suicide theory is considerably weakened when one considers the fact that the shotgun which caused Rowland’s death belonged to Cox, while there were other shotguns and a handgun in Rowland’s house which were not used. There was no ammunition in Rowland’s house which could have been used in Cox’s shotgun. Cox contends that Paul Hughes, Rowland’s close friend, saw a 12-gauge pump shotgun in Rowland’s house two days before the shooting, but, on cross-examination, Hughes stated that he did not get close enough to the gun to know if it was a 12-gauge, a 16-gauge, or a 20-gauge. Furthermore, Cox’s shotgun was sawed-off. Surely Hughes would have noticed a sawed-off shotgun in Rowland’s gun cabinet.

¶ 15. Cox insists that Rowland was suicidal because he was depressed, anxious about his finances, worried about whether he should go back to his wife or marry Jo Jo, and spreading himself too thin with too many women. He had lost 30 pounds in the months prior to his death and had difficulty sleeping. However, Hughes and Jo Jo testified that Rowland took great pride in the work he had already done on his cabin and property and that he was happy and excited about future work he had planned. Hughes testified that Rowland was very happy being a single man. A recovering alcoholic, Rowland had been sober for several years and attended AA meetings on a regular basis. He had a good salary and benefits from his job with the federal government which gave him plenty of time to work on the property. Although Dr. Abbe Finn, one of Cox’s expert witnesses, testified that Rowland was a prime candidate for suicide, she had never treated Rowland, and the people who knew Rowland personally contradicted her testimony. Additionally, the physicians who prescribed the antidepressants to Rowland testified that Rowland was not seriously depressed or suicidal. One of these physicians, T.T. Lewis, M.D., had treated Rowland for 45 years. The other physician, Todd Threadgill, M.D., a gas-trologist, saw Rowland only three days before his death.

¶ 16. Cox contends that the eyewitnesses’ identifications of Cox’s truck were not positive and that his son had the truck in question at school with him at Mississippi State University. However, other witnesses testified that they saw Cox sitting in the truck, parked on a road near Rowland’s property, or driving the truck.

¶ 17. Cox makes much of the fact that the fatal shot was a “hard contact” shot, meaning that the end of the barrel of the shotgun was pressed so tightly against Rowland’s face that the skin around the end of the barrel enfolded itself around the end of the barrel. He contends that a hard contact could not have occurred unless Rowland himself was holding the gun to his face. But this theory is merely speculative. The fact is that we do not know how Rowland was shot. Another plausible theory is that once Rowland saw Cox approaching with the shotgun, he stood still to call Cox’s bluff or accept his fate. Furthermore, the forensic pathologist testified that most gun suicides occur under the chin, in the mouth, or to the side of the head, and that a suicide shot rarely occurred on the forehead.

¶ 18. At trial, there was much testimony about the time of the shooting and when Cox arrived at work, and if the interval between the two times was sufficient for Cox to leave Rowland’s property, clean up and get to work. Both the State and Cox’s theories were based on one man’s testimony that he heard a gunshot about 6:30 that morning, and that Rowland was shot about 6:30. This testimony is speculative at best. Even if he heard a gunshot, he could not positively state what time it occurred; he merely judged the time by his regular morning routine. The only positive proof of a time frame that morning was that Cox was seen in a convenience store around 4:00 or 4:30 a.m., and that he arrived at work around 7:00 a.m.

¶ 19. Cox contends that he had loaned the shotgun to someone else before the shooting and had not had possession of the gun in years. However, after looking at a photograph of the shotgun, the recipient of Cox’s largesse affirmatively stated that the shotgun in the photograph was not the shotgun Cox had given him.

¶ 20. We find that the jury could conclude that Cox’s defense of suicide did not constitute a reasonable hypothesis of innocence, see McDonald, 454 So.2d at 492, and that the circumstantial evidence used to convict Cox was sufficient to establish guilt beyond a reasonable doubt.

II. Whether the circuit court erred in denying Cox’s motion for JNOV.

¶ 21. To review the denial of a motion for JNOV, we

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

Morgan v. State, 741 So.2d 246, 256 (Miss.1999) (citing Franklin v. State, 676 So.2d 287, 288 (Miss.1996) (quoting Wetz v. State, 503 So.2d 803, 808 (Miss.1987))).

¶ 22. Reviewing in the light most favorable to the State the evidence set out in Issue I, we affirm the circuit court’s denial of Cox’s motion for JNOV.

III. Whether the State’s destruction of physical evidence violated Cox’s constitutional right to due process and fundamental right to a fair trial.

¶ 23. Cox claims that he was denied due process due to the loss of evidence. Specifically, Cox contends that the death scene was insufficiently documented and promptly cleaned up before law enforcement could complete the investigation, that the gun and the body were moved, and that law enforcement destroyed fingerprints on the gun.

¶ 24. “The State has the duty to preserve evidence, but that duty is limited to that evidence which ‘might be expected to play a significant role in the suspect’s defense.’ ” Northup v. State, 793 So.2d 618, 623 (Miss.2001) (quoting Tolbert v. State, 511 So.2d 1368, 1372 (Miss.1987) (quoting California v. Trombetta, 467 U.S. 479, 488, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413, 422 (1984))).

¶ 25. When a defendant claims he is entitled to a new trial based on the prosecution’s having lost or destroyed evidence, we employ a two-part test: First, it must be determined whether the evidence would have played a significant role in the defendant’s case. To play a significant role, the exculpatory nature and value of the evidence must have been apparent before the evidence was lost. The second part of the test requires that the defendant have no way of obtaining comparable evidence by other means. Tolbert, 511 So.2d at 1372 (collecting authorities).

¶ 26. The intentional spoliation or destruction of evidence raises a presumption or inference that the evidence would have been unfavorable to the case of the spoliator: “Such a presumption or inference arises, however, only where the spoliation or destruction was intentional and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent.” Tolbert, 511 So.2d at 1372-73 (citing Washington v. State, 478 So.2d 1028, 1032-33 (Miss.1985)).

¶ 27. However, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Wilson v. State, 574 So.2d 1324, 1329 (Miss.1990) (quoting Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988)). Here, the record is absolutely devoid of any evidence that the law enforcement officers acted in bad faith.

¶ 28. The body was slightly moved by the emergency medical technicians. One of the EMTs was a “rookie,” and another EMT wanted to show him how, in this type of shooting, blood pooled underneath the skull. A law enforcement officer gave the EMT permission to move the body slightly. The EMT carefully picked up the upper torso so that the rookie could see the pooled blood and then placed it back, taking care to place it as it was before. No fingerprints were found on the shotgun shells or the shotgun itself. One law enforcement official picked the gun up while wearing vinyl gloves. Cox put on evidence that handling objects with vinyl gloves ruined any fingerprints. Also, law enforcement officers returned to the scene a day or two after the murder, washed Rowland’s station wagon and scraped the ground with a baekhoe, destroying any opportunity to take measurements of blood spatter.

¶ 29. An EMT testified that the gun was found lying at Rowland’s feet, but pictures showed that the gun was at Rowland’s side. If Rowland had committed suicide, the more natural position for the gun would have been in front of the body. In fact, experts fired the shotgun, and it recoiled directly backwards (to the front of the person firing it) for about 16 feet, so neither position would have been natural if Rowland had shot himself. Either of the shotgun’s positions, therefore, would tend to prove that someone had killed Rowland and attempted to stage a suicide. This issue, however, boils down to credibility, and the jury did not believe Cox’s suicide theory.

¶ 30. Cox complains that the investigation was insufficient, but this claim does not rise to a constitutional level. There is no constitutional requirement that certain investigative procedures be performed at each scene of a suspicious death or that the investigation rise to a certain level of expertise. Furthermore, the sufficiency or insufficiency of a police investigation goes to the weight of the evidence, and it is for a jury to decide what evidence to believe. Several witnesses who testified for Cox stated their opinion that the investigation was inadequate, so the issue was squarely before the jury.

¶ 31. This claim is without merit.

IV. Whether the circuit court erred in denying a continuance in order for the defense to investigate late-breaking information and incorporate it as an alternate defense theory.

¶ 32. Miss.Code. Ann. § 99-15-29 (Rev.1994) provides that a court “may grant or deny a continuance, in its discretion,” and that a denial of a continuance “shall not be grounds for reversal unless the Supreme Court shall be satisfied that injustice resulted therefrom.” In order for us to reverse, Cox must show that a manifest injustice resulted from the denial of the continuance. Lambert v. State, 654 So.2d 17, 22 (Miss.1995). The decision whether to grant or deny a continuance is a matter left to the sound discretion of the trial court. Johnson v. State, 631 So.2d 185, 189 (Miss.1994) (citing Wallace v. State,, 607 So.2d 1184, 1190 (Miss.1992); Morris v. State, 595 So.2d 840, 844 (Miss.1991); Fisher v. State, 532 So.2d 992, 998 (Miss.1988)).

¶ 33. Prior to trial, Judy Fillyaw had contacted the State and informed it that Jerry Porter was a possible suspect in Rowland’s murder. The State informed the defense and made an investigation. Upon interviewing Fillyaw and Teresa Porter, Jerry Porter’s wife, the State “had a clear belief’ that Fillyaw had mistaken Dave Rowland for Dave Nelson, who had allegedly been having an affair with Teresa Porter, and that Jerry Porter was not a possible suspect in Rowland’s murder. Cox filed a motion for continuance, contending that he needed “some time” to “develop” the facts surrounding this incident. The circuit court denied the motion, stating that there had been no discovery violation because the State had notified the defense promptly.

¶ 34. We find that no manifest injustice resulted from the denial of the motion for continuance. Cox has not presented any evidence that he was unable to call Fillyaw as a witness at this trial which lasted three weeks. Indeed, Teresa Porter did testify for the defense.

V. Whether the circuit court erred in allowing the State to extract hearsay from a witness regarding her having heard Dave Rowland tell her about alleged threats supposedly made to him approximately ten months prior to his death.

¶ 35. The State made a proffer of Linda Meek’s proposed testimony as follows: Ten months prior to Rowland’s death, while she was speaking to Rowland on the telephone, Rowland told her that he saw Cox standing outside his apartment with a gun. Rowland sounded anxious and told Meek that he was scared. The circuit court allowed her to so testify. Cox challenges the admission of Meek’s testimony on two grounds: that it was inadmissible hearsay and that it was not relevant because of the length of time between the event to which she testified and Rowland’s death.

¶ 36. Relevancy and admissibility of evidence are left, in large part, to the discretion of the trial court. Mitchell v. State, 792 So.2d 192, 217 (Miss.2001) (citing Johnston v. State, 567 So.2d 237, 238 (Miss.1990)). However, this discretion must be exercised within the confines of the Mississippi Rules of Evidence. Id. Reversal is proper only where such discretion has been abused and a substantial right of a party has been affected. M.R.E. 103(a); Mitchell, 792 So.2d at 217; Green v. State, 614 So.2d 926, 935 (Miss.1992).

A. Hearsay.

¶ 37. After the proffer of Meek’s testimony, the circuit court ruled that Rowland’s statement to Meek fell within two exceptions to the hearsay rule: Under M.R.E. 803(1), Rowland’s statement described or explained an event or condition made while he was perceiving the event or condition or immediately thereafter (a “present sense impression”). Also, under M.R.E. 803(2), Rowland’s statement related to a startling event or condition made while Rowland was under the stress of excitement caused by the event or condition (an “excited utterance”). The circuit court cited the comments to Rule 803, stating that the present sense impression exception is “based on the theory that the contemporaneous occurrence of the event and the statement render it unlikely that the declarant made a deliberate or conscious misrepresentation. Spontaneity is the essential factor.” M.R.E. 803(1) cmt. Furthermore,

in many respects the excited utterance exception is similar to the former res gestae rule. The underlying theory of the excited utterance exception is that circumstances may create such an excited condition that the capacity for reflection is temporarily impeded and that statements uttered in that condition are thus free of conscious fabrication.
As in the present sense impression exception, the essential ingredient here is spontaneity. With respect to the time element, the issue is the duration of the excited state. This, depending on exact circumstances of a case, can vary greatly. The declarant need not be a participant but only an observer of the event which triggered the excitement. An excited utterance need only “relate” to the startling event, and, therefore, the scope of the subject matter of the statement may be fairly broad.

Id.

¶ 38. We find that the circuit court did not abuse its discretion in finding that the hearsay was admissible. Rowland contemporaneously related the event to Meek; therefore the statement was a present sense impression. He was anxious and admitted that he was scared; therefore the statement was an excited utterance. The circuit court did not err in admitting the testimony over a hearsay objection.

B. Relevancy.

¶ 39. Rule 401 of the Mississippi Rules of Evidence defines “relevant evidence” as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the 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. Baldwin v. State, 784 So.2d 148, 156 (Miss.2001) (citing M.R.E. 403). Furthermore,

even, when the trial court determines under Rule 403 that prejudice substantially outweighs the probative value of particular evidence, it remains within the court’s discretion to determine whether to exclude the evidence, since Rule 403 does not mandate such an exclusion but rather states that the evidence may be excluded.... [0]ur task as an appellate court reviewing a Rule 403 determination is not to engage anew in the Rule 403 balancing process. Rather, this Court must simply determine whether the trial court abused its discretion in weighing the factors and admitting or excluding the evidence.

Baldwin, 784 So.2d at 156 (citing Foster v. State, 508 So.2d 1111, 1117-18 (Miss.1987)).

¶ 40. The circuit court ruled that, to the extent that the statements relate to other crimes or wrongs, M.R.E. 404(b) provides that the statements were not ordinarily admissible, but they may have been admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. It found that the probative value of the statements was not substantially outweighed by the danger of unfair prejudice or confusion of the issues.

¶ 41. We find that the circuit court did not abuse its discretion. Several witnesses testified that Cox was scouting the area around Rowland’s land prior to Rowland’s death. One witness testified on one occasion, Cox had been drinking and that, after asking for directions to the Stubblefield place, others would not give him the directions and took him home. The incident to which Meek testified is just one more incident which fits the pattern of Cox’s behavior, was not unduly prejudicial to Cox, and did not confuse the issues.

¶ 42. This assignment of error is without merit.

VI. Whether the statements made by the State during closing argument regarding Cox’s failure to explain the presence of his gun at the death scene constituted unconstitutional comments upon his exercise of his fifth amendment right not to testify.

¶ 43. During closing argument, the State made the following remarks:

The evidence proves that the defendant’s gun was open when the tests show that it won’t open. The evidence proves that there’s no explanation on how the defendant’s gun got to the murder scene other than the defendant placed it there.
Not only can the defendant not explain the presence of his gun at the scene, the defendant can’t explain why ... Dave, who had every reason to live for, ... would choose to commit suicide, why didn’t he use his own gun? It’s under the mattress in his bedroom.

¶ 44. As the State points out, Cox did not contemporaneously object to these remarks at trial and he is therefore procedurally barred from raising them on appeal. Slaughter v. State, 815 So.2d 1122, 1131 (Miss.2002). However, addressing the merits, “[w]hat constitutes an improper comment on the defendant’s failure to testify is ‘to be determined from the facts and circumstances of each case.’ ” Jones v. State, 669 So.2d 1383, 1390 (Miss.1995); Thompson v. State, 773 So.2d 955, 961 (Miss.Ct.App.2000).

¶ 45. In Shields v. State, 702 So.2d 380 (Miss.1997), we cited an Eleventh Circuit circumstantial evidence case. That court held that, in circumstantial evidence cases, the inference of guilt “is at its strongest when the defendant wholly fails to make a credible explanation or makes a demonstrably false explanation.” Cosby v. Jones, 682 F.2d 1373, 1380 (11th Cir.1982). In Shields, we found that the Eleventh Circuit’s holding in Cosby “is consistent with our precedents.” 702 So.2d at 383. We have further held that “[t]here is a difference ... between a comment on [a] defendant’s failure to testify and a comment on the failure to put on a successful defense.” Jones v. State, 669 So.2d at 1390 (citing Jimpson v. State, 532 So.2d 985, 991 (Miss.1988)).

¶ 46. We find that the State’s comments on Cox’s failure to explain the fact that his shotgun killed Rowland were not improper comments on Cox’s failure to testify, but merely comments on Cox’s failure to put on a successful defense. As the Eleventh Circuit held, a circumstantial case is built on inferences, and an inference can only be countered by a reasonable explanation, which, in this case, was not given for the shotgun.

B. ISSUES RAISED BY THE STATE IN ITS CROSS-APPEAL.

¶ 47. Even though we find that the circuit court committed error in both issues raised by the State, the errors were harmless because we affirm Cox’s conviction and sentence.

VII. Whether the circuit court erred in admitting into evidence certain medical and pharmacological records.

¶ 48. Prior to trial, Cox acquired Rowland’s medical and pharmacological records by subpoena duces tecum without notice to the State or the court. The circuit court denied the State’s motion to suppress. The State maintains that Cox never obtained a release from Rowland’s family to obtain the privileged documents and that the records were obtained by improperly-issued subpoenae duces tecum inasmuch as no notice was given to the State. Cox used these documents to support his defense of suicide. The documents showed Rowland’s medical history and that he was taking antidepressants and had gastrointestinal problems.

¶ 49. The State argues that a multi-step analysis should be used in making a determination of this issue: (1) whether the subpoenae duces tecum were improperly issued; (2) whether the records were privileged; and (3) whether the medical privilege must yield to a defendant’s right to put on a defense in a criminal case.

(1) Whether the subpoenae duces tecum were improperly issued. Rule 45(d)(2)(A) of the Mississippi Rules of Civil Procedure provides that a copy of a subpoena should be served upon opposing parties immediately after service of the subpoena. Cox failed to serve copies of the subpoenae to the State. Furthermore, the comments to M.R.C.P. 45 provide that the trial court “shall quash or modify the subpoena if it ... requires disclosure of privileged or other protected matter and no exception or waiver applies,” presupposing that the trial court would have an opportunity to review the matter before the issuing party has received the documents. Here, Cox had received the records before either the State or the circuit court knew that the subpoenae had been issued.

(2) Whether the documents are privileged. The medical and pharmacological records were privileged. The doctor-patient privilege applies in criminal proceedings, and the witness or victim should waive the privilege prior to the admission of such evidence. Cotton v. State, 675 So.2d 308, 312-13, 313 (Miss.1996). Furthermore, the privilege survives the death of the patient. See M.R.E. 503(c).

¶ 50. Cox argues that Jo Jo was present at one of the physical examinations that Rowland underwent; and therefore, the records from that examination were not privileged. Whether the presence of a third party at a medical examination waives the privilege is an issue of first impression in Mississippi. A Colorado court held that if the patient intends for the examination to be confidential, the privilege is not waived when a third person is present for the examination. People v. Deadmond, 683 P.2d 763, 771 (Colo.1984) (Even though a patient was so loud during an examination in an emergency room that others could hear his complaints, he did not intend to waive the privilege and therefore medical records were inadmissible.) Indeed, M.R.E. 503(a)(4) provides that “[a] communication is “confidential” if not intended to be disclosed to third persons, except persons present to further the interest of the patient in the consultation, examination, or interview,.... ” The notes of the physician who examined Rowland indicate that he relied upon Jo Jo in developing Rowland’s medical history. Therefore, the records were confidential even though Jo Jo was present.

(3) Whether the medical privilege should yield to a criminal defendant’s right to present a defense. The Court of Appeals has held that a criminal defendant’s right to confront the witnesses against him does not override a confidential medical privilege. Windham v. State, 800 So.2d 1257, 1260 (Miss.Ct.App.2001).

There simply is no recognized principle of law by which such recognized privileges as the attorney-client privilege, the priest-penitent privilege or the privilege against self-incrimination can be ignored and the evidence compelled despite the assertion of those privileges no matter the urgency of a criminal defendant’s need for the protected information.

Id. at 1261-62.

¶ 51. We agree with the Court of Appeals’ rationale, in general, but note that, in Windham, the defendant sought a witness’ medical records for the purpose of impeaching the witness. The witness was not the victim and had not placed his medical condition at issue. With respect to Rowland, the State’s own Crime Lab report indicated the presence of Citalo-pram (Celexa) in Rowland’s urine. The relevance of the presence of an antidepressant in the victim’s urine is irrefutable where Cox’s defense was that Rowland committed suicide. However, allowing access to all of Rowland’s medical records was error, though harmless under the circumstances.

¶ 52. Should this issue arise in the future, medical evidence pertaining to a victim may be secured and admissible in limited situations where the medical evidence is relevant, material and exculpatory. See People v. Bean, 137 Ill.2d 65, 147 Ill.Dec. 891, 560 N.E.2d 258, 268 (1990) (Medical records not material to defense inadmissible); State v. Stuck, 434 N.W.2d 43, 54 (S.D.1988) (Denial of access to privileged medical records upheld where defendant was not denied any material information, his defense was not prejudiced in any manner, and the victim’s physical or mental health was not at issue).

¶ 53. Because the doctor-patient privilege should be inviolate in most circumstances, we suggest certain actions, in addition to the guidelines of U.R.C.C.C. 2.01, to be taken by trial courts to control a criminal defendant’s access to privileged information. An in camera review by the court of the medical records to determine if the evidence is material, relevant and exculpatory would be appropriate. See People v. Bean, 147 Ill.Dec. 891, 560 N.E.2d at 269. If the circuit court finds that the records are admissible, the records should be redacted as much as possible to show only the evidence which is relevant and exculpatory. See id. See also Pennsylvania v. Ritchie, 480 U.S. 39, 58-61, 107 S.Ct. 989, 1002-04, 94 L.Ed.2d 40, 58-60 (1987) (While a defendant has a constitutional right to all material information contained in statutorily privileged records, he had no right to review the full records himself or through his attorney; instead, the trial judge alone should review the records in camera and should then disclose only material information.).

¶ 54. Here, the proper procedure for obtaining the subpoenae duces tecum was not followed and the medical records were admitted. However, any error in admitting the records was harmless because the jury convicted Cox and did not give credence to the suicide defense.

VIII. Whether the Circuit Court Erred in Allowing Cox’s Expert Witness to Give Opinions on Certain Matters.

¶ 55. Mike West, D.D.S., testified on behalf of Cox as an expert witness in, inter alia, crime scene reconstruction, ballistics and blood spatter. We find the admission of his opinions harmless under the circumstances and decline the State’s request that we adopt more stringent standards for the admission of expert opinions because this issue is better addressed in making modifications to the Mississippi Rules of Evidence.

IX. Whether the circuit court erred in admitting into evidence a computer-generated animation.

¶ 56. The State asserts that the circuit court erred in admitting a computer-generated animation created by Dr. West and others. The animation demonstrates Dr. West’s opinion as to how Rowland’s alleged suicide could have occurred. Because no measurements were made at the scene, Dr. West testified that the animation was based on his study of the case, including pictures, investigative reports, the weapon, the crime scene, the vehicles, etc. The State filed a motion in limine to suppress the animation, and at the hearing thereon, Cox argued that the animation would only be used as demonstrative evidence and would not be offered into evidence. Cox also informed the circuit court that “all of Dr. West’s opinions, except for when he reconstructed the scene and we have this animation, comes from only the State’s evidence.” The circuit court ordered Cox to

provide full and complete disclosure of any and all underlying data and scientific principles relating to “utilize computer analysis, enhancements and animation” of the proposed suicide video. The disclosure by the defendant must include but is not limited to the mathematics, physics, programming, hardware or software and any supporting documentation or studies used to create or support the animation.

Cox responded that a Bill Maxwell assisted West in the generation of the animation, but, as the State notes,

no further information on Maxwell was disclosed. The defendant’s response failed to outline the specific, scientific data including the measurements which were used to create the animation. It merely listed various software programs without any accompanying explanation of their application and no description of hardware. Bill Maxwell was never listed as a potential defense witness. Bill Maxwell never provided any form of signed written report, and neither did any of the defendant’s other expert witnesses in this case. Finally, neither Bill Maxwell, nor any [ ]other computer person, nor West, ever testified during trial as to the software or hardware actually used to make the animation. No one testified to the specific mathematical data used to manufacture this video animation prior to it being shown to the jury-

¶ 57. At a hearing on the State’s motion to suppress, an FBI Visual Information Specialist Examiner testified that, because of current technologies in computer animation, it was possible to create an animation showing literally anything as “real,” when it was not based on any facts. Any computer animation which was not based on actual, physical measurements from the crime scene was mere speculation. Other jurisdictions have addressed this issue and found, inter alia, that the animation must be based on scientific, identifiable, and objective facts. See, e.g., Pierce v. State, 718 So.2d 806 (Fla.Dist.Ct.App.1997) (The foundation for admission of a computer-generated animation must include specific physical measurements from the scene and testimony as to what software, process and data were used.); Clark v. Cantrell, 339 S.C. 369, 529 S.E.2d 528 (2000) (A computer-generated animation is admissible as demonstrative evidence when the proponent shows that the animation is authentic, relevant, a fair and accurate representation of the evidence to which it relates; and its probative value substantially outweighs the danger of unfair prejudice, confusing the issues, or misleading the jury.); State v. Farner, 66 S.W.3d 188 (Tenn.2001) (To be admissible, a computer-generated animation must be relevant and fair and accurate, and its probative value must outweigh its prejudicial effect.). We agree.

X. Whether the Computer Animation Should Have Been Given to the Jury for Consideration During their Deliberations.

¶ 58. Cox argues that the animation was nothing more than demonstrative evidence which helped to explain his testimony. Demonstrative evidence is admissible if it is necessary and relevant to a fact at issue. Murriel v. State, 515 So.2d 952, 956 (Miss.1987). Substantive evidence is evidence which is offered for the truth of the matter asserted. Marcum v. Miss. Valley Gas Co., 587 So.2d 223, 225 (Miss.1991).

¶ 59. The State urges us to adopt the rationale of other jurisdictions where the courts have held that evidence which is admitted for demonstrative purposes only should not be received in evidence and should not be available to the jury for use during deliberations. See U.R.C.C.C. 3.10 (“The court shall permit the jury, upon retiring for deliberation, to take to the jury room the instructions and exhibits and writings which have been received in evidence.”). In the case sub judice, even though Cox argues that it was only used as demonstrative evidence, the animation was admitted as an exhibit and was included in the evidence which was given to the jury to consider during its deliberations. We agree with the State’s argument and find that evidence which is admitted for demonstrative purposes only should not be given to the jury for its consideration during deliberations.

¶ 60. Any error committed by the circuit court in admitting the animation and allowing the jury to consider the animation during deliberations. Furthermore, any error was harmless because Cox was convicted was harmless. However, the law pertaining to computer animations and demonstrative evidence announced today will be prospectively applied in both criminal and civil cases.

CONCLUSION

¶ 61. Because Cox’s assignments of error are without merit and because any error made by the circuit court in admitting privileged records, allowing certain expert testimony, and allowing the jury to consider demonstrative evidence is harmless, we affirm Cox’s murder conviction and life sentence.

¶ 62. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., COBB, DIAZ, EASLEY AND GRAVES, JJ„ CONCUR. CARLSON, J., NOT PARTICIPATING.

      . See Miss.Code Ann. § 99-35-103 (Rev.2000).

      . Rowland lived in an apartment in Charleston prior to moving out to his cabin in the county.

      . Experts testified that after the shot, Rowland would have immediately lost all motor function due to the fact that the brain flew out of the open cranial cavity. This, plus the State’s re-enactment of the shotgun’s recoil, tend to prove that the shotgun would have landed in front of the body, just as the mostly-intact brain was found at Rowland’s feet.

      . Porter testified that she had worked with Rowland and that he flirted with her a great deal. She did not testify as to Jerry Porter being a possible suspect.

      . The version of U.R.C.C.C. 2.01 which was in effect at the time of the proceedings herein provided that subpoenas in both civil and criminal forums should conform to M.R.C.P. 45. U.R.C.C.C. 2.01 was amended April 18, 2002.

      . M.R.E. 503(c) provides as follows:
      (c) Who May Claim the Privilege. The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient. The person who was the physician or psychotherapist at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.