author: GRAVES, J., COBB, J.,

text:
    PUBLIC EMPLOYEES’ RETIREMENT SYSTEM v. Elsie DEARMAN.
    No. 2001-CC-01882-SCT.
    Supreme Court of Mississippi.
    April 3, 2003.
    Rehearing Denied June 12, 2003.

      Mary Margaret Bowers, Jackson, attorney for appellant.
    Christopher Collins Van Cleave, Clyde H. Gunn, Biloxi, D. Neil Harris, Pascagou-la, attorneys for appellee.
    Before PITTMAN, C.J., WALLER and GRAVES, JJ.
   GRAVES, J.,

for the Court.

¶ 1. The appeal arises from an order entered by the Circuit Court of the First Judicial District of Hinds County, Mississippi, on October 11, 2001. Elsie Dearman sought disability benefits from the Public Employees’ Retirement System of Mississippi (PERS). The PERS Medical Board reviewed Dearman’s request and denied her claim for disability benefits. There was an appeal of that decision to the PERS Disability Appeals Committee. A hearing was held wherein testimony was elicited and evidence received. The Committee presented its recommendation to the PERS Board of Trustees (Board), and the Board denied Dearman’s request. Dearman prosecuted an appeal to the circuit court which reversed the order of the Board of Trustees and granted disability benefits to Dearman. PERS raises the following issues on appeal:

I. WHETHER THE CIRCUIT COURT ERRED IN REWEIGHING THE FACTS AND SUBSTITUTING ITS JUDGMENT FOR THAT OF THE ADMINISTRATIVE AGENCY IN FINDING THAT MS. DEARMAN IS ENTITLED TO THE RECEIPT OF DISABILITY BENEFITS.

II. WHETHER THE CIRCUIT COURT ERRED IN DETERMINING THAT MS. DEARMAN PRESENTED SUBSTANTIAL EVIDENCE OF DISABILITY AND THAT THE DECISION OF THE BOARD OF TRUSTEES IS ARBITRARY AND CAPRICIOUS AS IT IS UNSUPPORTED BY THE EVIDENCE.

FACTS

¶2. Dearman began working for the Jackson County School District in August 1985. During the course of her tenure as a teacher, Dearman developed a large number of debilitating medical conditions, including fibromyalgia, chronic migraine headaches, chronic fatigue syndrome, cervical myofascial pain and numbness on her left side (including face, neck, arm, chest, torso, hip, leg and foot), asthma, chronic sinusitis, hepatitis, irritable bowel syndrome, hypothyroidism, anemia, and hypoglycemia. Ultimately, Dearman’s health deteriorated to the point that she was advised by her treating physician, Dr. Terry Millette, to seek medical retirement. Dearman requested sick leave on November 30, 1998, giving upcoming medical appointments and sedation for severe pain as reasons for her sick leave request. Dear-man assured her superiors she would monitor her substitute and wanted very much to return to teaching as soon as possible. However, Dearman was physically and mentally unable to perform the duties and responsibilities of her job, and she resigned from the Jackson County School District.

¶ 3. Dearman applied for disability retirement with PERS, certifying she was forced to cease employment because of her present illness. William Lee, Jr., the Superintendent of Education, certified Dearman’s application as being true and correct. Both Lee and Mary Tanner, principal of Dearman’s school, certified to PERS that in their official opinions Dear-man was unable to perform her job duties, and there were no reasonable accommodations which could be made to allow Dear-man to continue her employment. Additionally, Dr. Terry Millette, Dearman’s primary treating physician, submitted a “Statement of Examining Physician” to PERS which stated he found Dearman to be permanently disabled as a result of her medical condition.

¶ 4. At no time did any physician on the Medical Board of PERS conduct a medical examination nor did they request an independent physician examine Dearman. The record reflects the only medical examination and medical opinion of Dearman’s medical condition and disability are records submitted from Dr. Terry Millette.

¶ 5. After five months without any response from PERS, Dearman sent a letter to PERS which inquired about her pending application. On August 23, 1999, PERS sent a letter which denied Dear-man’s claim. On October 15, 1999, Dear-man filed an appeal. In support of Dearman’s grounds for appeal, additional certified medical records were submitted from Drs. David H. Witty, Richard A. Nicholls, Howard L. Smith, Greg Red-man and Bradley C. Cooper. On March 17, 2000, a hearing commenced before PERS Disability Appeals Committee. Submission of the Committee’s recommendation and review by the Board determined that Dearman was not permanently disabled as defined under PERS law. Thus, the claim was again denied.

¶ 6. On May 23, 2000, Dearman filed her notice of appeal in the Circuit Court of the First Judicial District of Hinds County, Mississippi. Following the submission of briefs, the circuit court reversed the decision of the PERS Board of Trustees.

DISCUSSION

¶ 7. PERS alleges that the circuit court erred because it reweighed the facts and substituted its judgment for that of the administrative agency in finding that Dearman was entitled to the receipt of disability benefits. PERS also argues that the decision by the Board of Trustees is based upon substantial evidence and should be reinstated. Substantial evidence has been defined as evidence which affords a substantial basis of fact from which the fact in issue can be reasonably inferred. Davis v. Pub. Employees’ Ret. Sys., 750 So.2d 1225, 1233 (Miss.1999). PERS contends the facts as presented in the record before this Court support the decision of the PERS Board of Trustees that Dear-man is not entitled to the receipt of regular disability benefits pursuant to Miss. Code Ann. § 25-11-113.

¶ 8. Dearman claims the record contains no evidence which suggests she is not disabled or that she is able to perform her duties as a public school teacher. Dear-man contends the medical evidence presented in this case is undisputed. The principal of Dearman’s school as well as the superintendent of education certified that Dearman is unable to perform the duties of her former job and that no accommodations can be made to keep her gainfully employed. Dearman alleges that PERS failed to fulfill its statutory duty to have the Medical Board conduct a medical examination of her. Additionally, Dear-man argues that substantial evidence of disability has been proven and the Board’s decision was arbitrary and capricious as it is unsupported by the evidence.

¶ 9. Since the issues of whether the circuit court erred in finding that the Board’s denial of benefits was not supported by substantial evidence and whether the circuit court erred in finding that PERS denial of benefits was both arbitrary and capricious are interrelated, they will be discussed simultaneously. Due to the findings of the circuit court, the primary question before this Court is whether the record contains substantial evidence to support the Board’s finding that Dear-man is not disabled, upon which it based its denial of benefits. This Court has defined “substantial evidence” as “such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Delta CMI v. Speck, 586 So.2d 768, 769 (Miss.1991). In reviewing the Board’s decision, the circuit court observed evidence that Dearman suffers from numerous medical problems: depression, inability to sleep, constant pain, memory loss, changes in cognitive ability, inability to stand for long periods of time and constant fatigue. At the hearing before the PERS Disability Appeals Committee, Dearman gave extensive testimony concerning her disability and physical debilitation, including:

She had to resign from teaching because she was too sick to keep working.
She suffers from pain, numbness and semi-paralysis on her entire left side. Sometimes the pain in her face is so bad it feels like someone is sticking pencils in her ear.
When she stands or sits for extended periods, drives or rides in a car for long distances, she has pain in her hip that feels like somebody is sticking a knife into her groin and pushing it in.
She suffers from migraines and other problems which have existed for years but in the last year have become overwhelming.
In the last few years she has developed frequent bladder infections and sometimes has pus or blood in her urine. She cannot stand for periods longer than four to five minutes without experiencing pain, and it is very painful for her to ride long distances in a car.
She is no longer able to vacuum her home, grocery shop on her own or unload groceries from the car.
She takes numerous forms of prescription narcotics, including Oxycontin, which she takes in the morning and in the afternoon per Dr. Millette’s prescription.

¶ 10. Richard Dearman, Dearman’s husband, also testified about her physical debilitation and her inability to perform daily household tasks. Additionally, the record contains numerous certified opinions. Dr. Millette, the only physician who examined the claimant, determined that Dearman is permanently disabled and incapable of performing her job responsibilities. Dr. Millette opined that Dearman is not expected to return to any type of gainful employment. Medical records indicate that Dr. Witty treated Dearman for asthma and chronic sinusitis. Dr. Witty anticipated Dearman would require long-term inhaled steroid use for control of asthmatic symptoms. Dr. Nieholls submitted a letter to PERS which disclosed Dearman had been his patient for twenty-two years and at Dearman’s last examination she was diagnosed as suffering from anemia, fibrocystic breast disease, recurrent urinary tract infection, chronic cephal-gia, mastodynia, fatigue and paresthesia of her left arm and left leg. Dr. Smith, a neurologist, examined Dearman in 1998 and noted episodic numbness and weakness in her left side, involving her head, torso, arm and leg. Dr. Smith opined Dearman suffers from hemiparesis and hemisensory change on her left side. In 1997, Dr. Redman diagnosed Dearman as suffering from an unusual group of symptoms involving left sided Paraesthesias, possibly related to a neurologic migraine. Dr. F. Orleans treated Dearman for severe stomach pain and bloody diarrhea. Dr. Orleans diagnosed Dearman as suffering from probable ulcer disease. An endoscopy performed by Dr. Orleans confirmed the diagnosis of irritable bowel syndrome.

¶ 11. Conversely, the record is devoid of any evidence that Dearman is not disabled. PERS failed to offer any medical evidence which disputed the opinions of Drs. Millette, Witty, Nicholls, Smith, Red-man and Orleans. PERS contends physicians on the Medical Board and the Disability Appeals Committee reviewed the evidence and determined that Dearman was not disabled. However, their opinion is not conclusive. PERS cannot choose to ignore the only evidence in the record from the examining physician, especially where it chose not to exercise its right to an independent medical evaluation under Miss.Code Ann. § 25 — 11—118(l)(c) (Rev. 1999). The circuit court noted that the medical evidence in this case is uncontro-verted. The circuit court also reviewed statements from Dearman’s former employer, the Jackson County School District, that Dearman was unable to perform the duties and responsibilities of her job and certified that no accommodations could remedy the situation.

¶ 12. The circuit court’s findings are supported by decisions of this Court. Public Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 423 (Miss.2000), is factually similar to the case at bar. Like Dearman, Marquez suffered from a number of illnesses including fibromyalgia, depression, malignant tissue disease and had undergone a hysterectomy and cholestectomy. Marquez was denied permanent disability benefits and appealed that decision. PERS raised the same argument that Marquez suffered for years with many of the same conditions she now finds disabling but was able to continue working and asserts the record lacks “objective” evidence of disability. This Court rejected the argument by PERS that its denial of benefits was justified because the applicant was able to continue working with the same medical conditions in the past. In Marquez, this Court noted:

the fact remains that there is recent medical evidence in the record suggesting that Marquez is incapable of performing her duties as a school teacher. The fact that Marquez was able to continue teaching over the years while suffering from certain ailments has little bearing on whether she was able to perform her duties at the time she applied for permanent disability benefits.

Id. at 427. This Court determined that the lack of substantial evidence supporting the decision to deny permanent disability benefits rendered the decision arbitrary and capricious.

¶ 13. The scope of review of actions by administrative agencies such as PERS is well established. “An agency’s conclusions must remain undisturbed unless the agency’s order; (1) is not supported by substantial evidence, (2) is arbitrary or capricious, (3) is beyond the scope or power granted to the agency, or (4) violates one’s constitutional [or statutory] rights.” Fulce v. Pub. Employees’ Ret. Sys., 759 So.2d 401, 404 (Miss.2000). The decision of the PERS Medical Board and Board of Trustees is not supported by substantial evidence. Miss.Code Ann. § 25-ll-113(l)(a) clearly details the manner in which the Medical Board determines if disability is present:

The inability to perform the usual duties of employment or the incapacity to perform such lesser duties, if any, as the employer, in its discretion, may assign without material reduction incompensation or the incapacity to perform the duties of any employment covered by the Public Employees’ Retirement system (Section 25-11-101 et seq.) that is actually offered and is within the same general territorial work area, without material reduction in compensation. The employer shall be required to furnish the job description and duties of the member.

¶ 14. It is clear from the record that Dearman is unable to perform her usual duties of employment and no accommodation could remedy the situation. “An administrative agency’s decision is arbitrary when it is not done according to reason and judgment, but depending on the will alone.” Burks v. Amite County Sch. Dist., 708 So.2d 1366, 1370 (Miss.1998). “An act is capricious if it is done without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts.” Id. Therefore, we find the evidence does not support a denial of disability benefits and that PERS’ decision is arbitrary and capricious. “If an administrative agency’s decision is not based on substantial evidence, it necessarily follows that the decision is arbitrary and capricious.” Miss. State Dep’t of Health v. Natchez Cmty. Hosp., 743 So.2d 973, 976 (Miss.1999). For all the aforementioned reasons, we find no error by the circuit court.

CONCLUSION

¶ 15. Dearman has been unable to work for more than three years because of disabling medical conditions, yet PERS has refused to pay any of the benefits to which she is entitled. The denial of benefits lacks evidentiary support in the record. Dearman’s disability is certified by her former employer, treating physicians, and witness testimony. The circuit court did not err in finding that PERS’ denial of benefits to Dearman was unsupported by substantial evidence and was, thus, arbitrary and capricious.

¶ 16. For the reasons stated above, we affirm the circuit court’s judgment.

¶ 17. AFFIRMED.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, DIAZ, EASLEY AND CARLSON, JJ., CONCUR. COBB, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

COBB, J.,

Dissenting:

¶ 18. The majority moves away from our long established precedents in PERS cases and shifts the burden of proof from the claimant to the agency. If this Court is going to change how we review the decisions of PERS and place new burdens and requirements on that agency, then we should explicitly say as much, the better to guide PERS in making its future rulings. However, I do not believe that such a change is warranted or wise, which is why I do not join the majority today.

¶ 19. Our recent opinion in Public Employees’ Retirement System v. Dishmon, 797 So.2d 888 (Miss.2001), provides the background to this shift in our review of PERS cases. Dishmon’s claim went to the Medical Review Board, which examined Dishmon’s award from the Social Security Administration, “letters from her physician, and her description of other physical complications.” Id. at 890. The board found no substantial evidence of statutory disability. Id. On appeal, the Disability Appeals Committee reviewed “Dishmon’s testimony, findings of the Medical Review Board, Dishmon’s employer statements, letters from Dishmon’s physician, Dish-mon’s medical records, and the disability award from the Social Security Administration,” and found Dishmon had not proved statutory disability. Id. at 890-91.

¶ 20. Note that none of the evidence before PERS consisted of contrary medical evidence asserting that Dishmon was not disabled. PERS did not avail itself of its statutory power to mandate a medical examination under Miss.Code Ann. § 25 — 11—113(l)(e).

¶ 21. This Court reversed the decision of PERS to deny benefits, but we did so based on a violation of due process when the same individual sat on the board and committee that considered Dishmon’s claim. Id. at 897. However, before reaching that holding, this Court first addressed whether PERS acted arbitrarily and capriciously in denying Dishmon any disability benefits.

¶ 22. We held that the burden was on Dishmon to prove her disability, and that even though she had diabetes, PERS was not arbitrary or capricious in finding that, insofar as she had been employed for eight years while suffering from that disease and she showed no new signs of debility, she was not statutorily disabled. Id. at 893. “The Board and Committee apparently concluded that Dishmon was either untruthful or the injury described was not significant enough to warrant disability. This Court cannot attempt to weigh the credibility of Dishmon.” Id. The trier of facts, i.e. the Committee, was entitled to deferential review as the party best qualified to evaluate the weight of the evidence. Id.

¶ 23. Moreover, although Dishmon’s employer said it considered her disabled, this Court stated: “PERS convincingly argues that the opinion of a lay person should not be taken as conclusive evidence of disability.” Id. at 894. We also held that her primary physician’s finding that Dishmon was “permanently and totally disabled” was not binding on PERS, since the Board and Committee took the physician’s finding into account in making their determinations. Id.

¶24. In the present case, Dearman’s physician and employer say that she is disabled, on facts very similar to those in Dishmon. However, the majority now reaches the opposite conclusion. It reweighs the evidence and decides that Dearman is disabled. In doing so, the majority states:

PERS contends physicians on the Medical Board and the Disability Appeals Committee reviewed the evidence and determined that Dearman was not disabled. However, their opinion is not conclusive. PERS cannot choose to ignore the only evidence in the record from the examining physician, especially where it chose not to exercise its right to an independent medical evaluation under Miss.Code Ann. § 25 — 11—113(l)(c) (Rev.1999). The circuit court noted that the medical evidence in this case is un-controverted.

Maj. op. at ¶ 11. This position abandons this Court’s opinion in Dishmon in favor of rewriting the disability claims process. The new rule, according to the majority, is that any time that a claimant comes before PERS with a doctor’s opinion that she is disabled, PERS is required to find her disabled unless it has received controverting evidence from an examination that it has ordered. That is to say, the burden shifts to PERS once the claimant has produced evidence in her favor.

¶25. The majority offers no authority for such burden-shifting in administrative cases. Instead, it cites our recent opinion in Public Employees’ Retirement System v. Marquez, 774 So.2d 421 (Miss.2000). In that case, this Court said:

the PERS board of trustees acted, but we do not know what it was about the evidence that persuaded the board that Marquez was not disabled. PERS put forth no controverting evidence in the face of various medical diagnoses made by various credible doctors. When medical evidence and testimony given by Marquez is contrasted with PERS’s rationale for denial of benefits, the evidence supporting PERS’s decision to deny benefits appears insubstantial. The circuit court judge reviewed the evidence before her and found that there was sufficient evidence to grant permanent disability benefits. It is within the power of the circuit court to reverse PERS’ decision if such decision was not supported by substantial evidence. As stated earlier, substantial evidence means “such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Delta CMI, 586 So.2d at 768. In support of its conclusion, PERS has stated only that Marquez lacks sufficient “objective” medical evidence. In light of the objective diagnoses made by Marquez’s treating physicians, PERS’s conclusion is simply not substantiated by the record.

774 So.2d at 429 (emphasis added). This language does not, as the majority thinks, support a burden-shifting requirement. Our complaint in Marquez was not simply the lack of controverting evidence. Rather, it was the fact that PERS failed to explain what was supposedly wanting in the evidence before it, but instead merely labeled it “subjective” without further explanation, so that “we [did] not know what it was about the evidence that persuaded the Board that Marquez was not disabled.” We did not have a reviewable decision before us.

¶ 26. In the present case, the Committee’s determination, upon reviewing the records and hearing Dearman herself testify, was that her physical examinations had failed to present any evidence of a disabling condition, and that Dearman’s “behavior is indicative of factitiousness, that is, the deliberate creation of false symptoms in an effort to obtain attention, in this case, medical care.” That is to say, PERS did not ignore Dearman’s evidence, but simply found it insufficiently credible to meet her burden of proof.

¶ 27. That is a classic example of the kind of determination this Court leaves to the agency. See, e.g., Byrd v. Pub. Employees’ Ret. Sys., 774 So.2d 434, 438 (Miss.2000) (PERS has discretion how much weight to assign evidence); Walters v. Miss. Dep’t of Econ. & Cmty. Dev., 768 So.2d 893, 895 (Miss.2000) (reversal proper only where agency’s order is against overwhelming weight of the credible evidence (emphasis added)); Nelson v. Miss. State Bd. of Veterinary Med., 662 So.2d 1058 (Miss.1995) (agency “is charged with determining the credibility and weight” of evidence).

Issues of fact and credibility are the primary responsibility of the trier of fact. Accordingly, this Court should not reweigh the facts nor substitute its judgment for that of the fact finder as to credibility issues. The reviewing court is only concerned with the reasonableness of the administrative order, not its correctness.

McFadden v. Miss. State Bd. of Med. Licensure, 735 So.2d 145, 152 (Miss.1999). Nevertheless, the majority decides to determine for itself whether Dearman’s claim was a credible one. In doing so, it rewrites the law established by Dishmon and Byrd.

¶ 28. The majority relies on its reading of our familiar tests for review of administrative actions: “An agency’s conclusions must remain undisturbed unless the agency’s order (1) is not supported by substantial evidence, (2) is arbitrary or capricious, (3) is beyond the scope or power granted to the agency, or (4) violates one’s constitutional ... rights.” Maj. op. at ¶ 13 (quoting Fulce v. Pub. Employees’ Ret. Sys., 759 So.2d 401, 404 (Miss.2000)). Seizing on the first element, the majority concludes that, because no substantial evidence in the record supported PERS’s findings, its decision was not supported by substantial evidence.

¶ 29. But that application of a general test to a specific agency’s procedures results in a misfire. We have already seen that the burden of proving disability rests with the claimant and that PERS is entitled to determine the weight and credibility of the evidence. “Supported by substantial evidence” in this context means that PERS has placed on the record a sufficient explanation of its determination that its reasoning can be understood, as this Court required in Marquez. It obviously, in light of Dishmon, does not mean that PERS must have a doctor’s examination report saying that the claimant is not disabled. That would place the burden on PERS to prove that the claimant is not disabled, directly contrary to our precedents. Rather, our fundamental concern should be with whether PERS has supported its decision with a reasonable explanation, as opposed to acting arbitrarily and capriciously.

¶ 30. In any event, the Board and Committee had substantial evidence before them from which to evaluate Dearman’s credibility, namely, Dearman’s testimony itself, ■ together with the records of her visits to various doctors who could find no physical basis for her complaints. Substantial evidence “means evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred.” Cent. Elec. Power Ass’n v. Hicks, 236 Miss. 378, 389, 110 So.2d 351, 357 (1959) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 217, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). The “fact in issue,” the insufficiency of Dearman’s claim, can be reasonably inferred from the record, given that PERS was in the best position to evaluate Dear-man’s credibility.

¶ 31. Cases like Dearman’s are hard ones to decide. A claimant professes to be in great pain so that she can no longer work. It is difficult to evaluate such claims: legitimately disabled persons are entitled to relief, but on the other hand, if PERS is required to credit every such claim before it, then it may as well close up shop and just write checks. Such hard cases and close calls are best made by the administrative agency with the professional skills, the daily experience, and the face-to-face opportunity to evaluate these close calls. That is why administrative agencies exist; why we regularly defer to their findings; and why the majority errs in deciding, on a cold record, that judicial opinions outweigh medical ones.

¶ 32. For these reasons, I respectfully dissent.

      . There certainly is nothing in § 25-11-113 to suggest that PERS is required to order a new examination under subsection (l)(e). The language of that subsection is permissive ("may request”).


source: Caselaw Access Project

author: GRAVES, J.,

license: Public Domain

text:
    Patricia Ann KINGSTON v. STATE of Mississippi.
    No. 2001-KA-00749-SCT.
    Supreme Court of Mississippi.
    May 22, 2003.

      Brian Bienvenu Alexander, attorney for appellant.
    Office of the Attorney General by: Wayne Snuggs, attorneys for appellee.
    Before PITTMAN, C.J., EASLEY and GRAVES, JJ.
   GRAVES, J.,

for the court.

¶ 1. This appeal arises from a jury verdict in the Circuit Court of Hancock County. The jury convicted Patricia Ann Kingston of the murder of her husband, Herman Cowan. She was ultimately sentenced to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved by the conviction, Kingston submits two issues on appeal: (1) whether the trial court erred in its failure to grant her motion for JNOV or in the alternative a new trial, and (2) whether the court erred in denying jury instructions D-5 and D-6.

FACTS

¶2. On August 20, 1998, Kingston and Cowan spent the evening at the Casino Magic. After August 20, 1998, Cowan was missing until his body was found by a fisherman. It was floating in a trunk in the Bayou LaCroix in Hancock County on February 28, 1999. At the time of his death, Cowan was living in Bay St. Louis, Mississippi, in a duplex owned by Kingston, Cowan and his stepdaughter, Tiffany, who shared the duplex with him. Kingston resided in Bay St. Louis in her antique store, Pattiff, where she had moved before Cowan was reported missing.

¶ 3. Cowan’s employer, Kelvin Schulz, concerned about Cowan’s failing health and the fact that Cowan did not call in, first contacted the authorities when Cowan did not show up for his part-time job on August 21, 1998. On August 23, 1998, A1 Kingston, Sr., Kingston’s father, filed a missing person’s report. An autopsy report revealed that Cowan died of a gunshot wound to the back of the head. The body was placed in a cedar trunk and was disposed of in the Bayou LaCroix.

¶ 4. An interview, by the police, of a witness regarding the murder of a Mr. Sanders in the Ansley community led to information about Cowan’s murder. The witness stated that Robert Gray Gainey, son-in-law to Kingston, told the witness that Gainey helped Kingston dispose of the body by placing it in a trunk and throwing it in the marsh.

¶ 5. Gainey is married to Kingston’s daughter and lived in one side of the duplex with her while Cowan resided on the other side. Gainey also worked in the antique shop for Kingston. Gainey testified that on August 21, 1998, Kingston came to the duplex and woke him up to help her with a problem at the antique store. He stated that when they arrived she told him to go into the warehouse where he found Cowan’s dead body lying on the floor. After discovering the body, Gainey stated that Kingston asked him to help clean up the mess and that he noticed that she had a revolver. However, Gainey stated that when he said that he did not want to have any part in it, Kingston said, “we had to clean this mess up or there’d be more than one body laying here.” Gainey admitted that since he had already become an accessory by cleaning up the mess, he helped her dispose of the body. Gainey further stated that Kingston admitted to him, months later, that she killed Cowan.

¶ 6. Gainey was arrested in March of 1999 in connection with the death of Sanders. After his arrest, he was questioned about the Cowan murder. Gainey later gave a statement to the police impheating Kingston. He also took the police to the antique shop and to the bayou and assisted them as they videotaped the crime scenes. He also stated that Kingston owned a .38 revolver which he had hidden in the shop for her after the incident. Cowan was shot with a .38 caliber gun. However, the police never recovered the weapon.

¶ 7. Gainey entered a plea agreement with the State offering to testify against Kingston and in exchange, he would plead to accessory after the fact in the Cowan murder as well as the Sanders murder and receive three years to serve in each case with the sentences to run concurrently. Kingston was indicted by a Hancock County Grand Jury on September 7, 1999. She signed a waiver of arraignment and entry of plea and entered a plea of not guilty on October 14, 1999. The trial was held on August 15-17, 2000, and at its conclusion, the jury found Kingston guilty. She was sentenced to life imprisonment on August 17, 2000. Kingston filed a motion for JNOV or in the alternative a new trial on August 23, 2000. The court entered an order denying the motion on September 22, 2000. From this order, Kingston filed a notice of appeal on October 20, 2000.

DISCUSSION

Failure to Grant Motion for JNOV or a New Trial

¶ 8. Kingston argues that the trial court erred in denying her motion for a JNOV or in the alternative a new trial because the verdict was against the overwhelming weight of the evidence. Kingston argues that Gainey’s testimony is neither rehable, trustworthy, nor credible for several reasons. First, the entire case rests on the immunized testimony of Gainey who pled to lesser counts. Second, Gainey’s first statement was given while he admittedly was under the influence of drugs. Third, Gainey’s drug use prevented him from knowing who committed the murder. Fourth, Gainey avoided changing his original statement to elude penalties for perjury.

¶ 9. In reviewing denials of a JNOV motion

[T]his Court will consider the evidence in the light most favorable to the appel-lee, giving that party the benefit of ah favorable inferences that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required.

Pruitt v. State, 807 So.2d 1236, 1243 (Miss.2002). In contrast, our standard of review for claims that a judgment is against the overwhelming weight of the evidence is as follows:

In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. As such, if the verdict is against the overwhelming weight of the evidence, then a new trial is proper.

Id. (quoting Dudley v. State, 719 So.2d 180, 182 (Miss.1998)). Sufficient evidence exists in the record to justify the jury’s verdict because Kingston was convicted pursuant to independent evidence as well as Gainey’s testimony. The independent evidence consisted of the following: Kingston attempted to cover up the murder by giving the police false information and lying about Cowan’s whereabouts; she attempted to impede the police investigation by seeking a temporary injunction against the police department; she never reported her husband missing; she never called the police to inquire about the investigation; she and Cowan were separated and Cowan had retained a lawyer to file for divorce; and she admitted during her testimony that on a prior occasion she had moved out of the house with Cowan when she was angry in order to avoid killing him.

¶ 10. In addition to the independent evidence presented, the jury heard the testimony of both Gainey and Kingston. They found Gainey to be the more credible witness. That was their right. The jury was informed about Gainey’s alleged drug use, the plea agreement he entered with the State, and the fact that if Gainey changed his statement, he could face penalties for perjury.

¶ 11. The jury is charged with weighing the conflicting evidence of witnesses. Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983). Furthermore, this Court has stated:

Jurors are permitted, indeed have the duty, to resolve the conflicts in the testimony they hear. They may believe or disbelieve, accept or reject the utterances of any witness. No formula dictates the manner in which jurors resolve conflicting testimony into finding of fact sufficient to support their verdict. That resolution results from the jurors hearing and observing the witnesses as they testify, augmented by the composite reasoning of twelve individuals sworn to return a true verdict. A reviewing court cannot and need not determine with exactitude which witness or what testimony the jury believed or disbelieved in arriving at its verdict. It is enough that the conflicting evidence presented a factual dispute for jury resolution.

Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). Here, the jury weighed the evidence and found Gainey’s testimony believable. We find that no error was committed and that this issue is without merit.

Jury Instructions

¶ 12. Kingston argues that the court erred by failing to grant jury instructions D-5 and D-6. Kingston avers that the jury was allowed to deliberate without proper instructions covering the special circumstances surrounding the uncorroborated and suspicious immunized testimony. Her concern is that because instructions D-5 and D-6 were not given the jury could have been confused since she and Gainey both claimed to be the accomplice and not the murderer. Moreover, Kingston complains that instruction S-4 does not specifically name Gainey in the body of the instruction.

¶ 13. Proposed Jury Instruction D-5 states:

The Court instructs the jury that Robert [sic] Grey Gainey in cutting his deal to testify against the defendant he pled guilty as an accessory after the fact to the murder of Herman Cowan and got the State to reduce the charge of murder against him to accessory after the fact in an unrelated murder charge receiving on of total three years on recommendation of the State. By entering these guilty pleas and being sentenced he has become immunized against in future prosecution on a charge of murder in either homicide.
The Court instructs the jury that it should weigh the testimony of an immunized witness with great care, caution, suspicion, and distrust.

¶ 14. Proposed Jury Instruction D-6 states:

By his testimony Robert [sic] Grey Gai-ney claims to be an accomplice to the crime charged against defendant Patricia Ann Kingston.
The Court instructs the jury to weigh the testimony of an accomplice with great care, caution, suspicion, and distrust.

¶ 15. As given by the trial court, Jury Instruction S^l states:

The Court instructs the jury that a person criminally involved with others in a crime is an accomplice. The testimony of an accomplice is to be considered and weighed with great care and suspicion. You may give it such weight and credit as you deem it is entitled.

¶ 16. Kingston cites to Van Buren v. State, 498 So.2d 1224 (Miss.1986) which is not supportive of her contention that the court erred in failing to grant jury instructions D-5 and D-6. Kingston suggests that Van Burén holds that the granting of the accomplice cautionary instruction by a trial judge is discretionary and not absolute. Id. at 1229. While this is true, Kingston has failed to present case law which exhibits how the trial judge committed reversible error in refusing to give jury instructions D-5 and D-6.

¶ 17. Furthermore, she cites Wheeler v. State, 560 So.2d 171, 174-75 (Miss.1990); Lee v. State, 529 So.2d 181, 183 (Miss.1988); Groseclose v. State, 440 So.2d 297 (Miss.1983); and Barr v. State, 359 So.2d 334, 338 (Miss.1978), to instruct the Court that a jury should be fully and fairly instructed or the trial court has committed reversible error. The cases cited by Kingston are not instructive at all as to the resolution of this case. Moreover, she has not cited any other applicable authority in her brief. As previously stated, failure to cite authority in support of an assignment of error is a procedural bar. McClain v. State, 625 So.2d 774, 781 (Miss.1993). This issue is without merit.

CONCLUSION

¶ 18. For the above stated reasons, we affirm the trial court’s judgment.

¶ 19. 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., WALLER, COBB, DIAZ, EASLEY AND CARLSON, JJ., CONCUR.


author: CARLSON, J„

text:
    Brenda L. MITCHELL and Bradford Dreher Jordan v. CITY OF GREENVILLE, Mississippi.
    No. 2001-CA-01876-SCT.
    Supreme Court of Mississippi.
    May 29, 2003.
    Walter Beauregard Swain, Jr., Green-ville, attorney for appellants.
    L. Bradley Dillard, Tupelo, attorney for appellee.
   CARLSON, J„

for the Court.

¶ 1. This appeal results from a circuit judge’s grant of summary judgment in favor of a governmental entity pursuant to the Mississippi Tort Claims Act (MTCA), Miss.Code Ann. §§ 11-46-1 to -23 (Rev. 2002). Finding no error, we affirm the judgment of the Circuit Court of Washington County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2. On November 12, 1999, Brenda L. Mitchell (Mitchell) and Bradford Dreher Jordan (Jordan) filed separate lawsuits against the City of Greenville, Mississippi (Greenville) and Hovas Construction, Inc. (Hovas) for injuries and damages sustained in a one-car accident on November 14, 1998, when Mitchell and Jordan were occupants of a motor vehicle which struck a pile of dirt and debris from the construction of a boat ramp on Lake Front Road. Greenville had previously contracted with Hovas for the construction of a boat ramp involving, among other things, the “cutting into” Lake Front Road.

¶3. Mitchell and Jordan operated a night club called The Walnut Street Bait Shop. Jordan played in a band performing in the club on the night of the accident. Around midnight the band took a break, and Jordan, Mitchell, and one of the other band members, Richard Taliaferro, drove to the home of Mitchell and Jordan on Lake Ferguson Road, north of Greenville. They went to their home to feed their cats and retrieve a cord needed by the band.

¶4. They left the night club between 12:15 and 12:30 a.m. At her deposition, Mitchell testified that Jordan was driving. It took around 15 minutes for them to drive home. On the way back to the club, there was a misting rain as they ascended and descended a levee. Upon descending the levee, they were heading toward Lake Front Road, a road with which they were very familiar, when according to Mitchell, dirt and debris appeared “suddenly out of nowhere.” The vehicle struck the pile of dirt and debris, and the occupants were injured. Jordan testified via deposition that as he drove the van he could see a yellow tractor near the pile of debris; •however, he did not see traffic cones or lights. Jordan stated he had consumed one five-ounce cup of wine while on stage with the band that night. Personnel with the Greenville Police Department performed a breathalyzer test on Jordan around 4:00 a.m., approximately three hours after the accident, and he registered .092.

¶ 5. In his complaint Jordan alleged that he was driving the vehicle. He also alleged the pile of dirt and debris was not reasonably visible nor did he have adequate warnings. Mitchell filed a separate complaint against Greenville and Hovas the same day. In her complaint, Mitchell alleged she was a passenger in the vehicle she owned but which was driven by Jordan. Her complaint also alleged the pile of dirt and debris was not reasonably visible nor were adequate warnings in place.

¶6. Prior to any responsive pleadings being served, both Mitchell and Jordan filed separate amended complaints. These amended complaints were identical to their respective complaints except that the amended complaints substituted Greenville City Clerk Mary Ann Hess for Greenville Mayor Paul Artman as the person upon whom process could be served in behalf of Greenville. Shortly thereafter, Greenville filed separate answers to the amended complaints and a motion to consolidate the cases. By agreed order, the cases were consolidated.

¶ 7. Greenville moved for summary judgment on the basis of exemption for liability under Miss.Code Ann. §§ ll-46-9(l)(v) & (w). Upon responses being filed, the trial court conducted a hearing on the summary judgment motion. Upon taking the motion under advisement, the trial court in due course granted summary judgment in favor of Greenville pursuant to the MTCA, from which both Mitchell and Jordan have appealed.

STANDARD OF REVIEW

1! 8. The Mississippi Legislature has determined that governmental entities and their employees shall be exempt from liability in certain situations as outlined in Miss.Code Ann. § 11-46-9. This exemption, like that of qualified or absolute immunity, is an entitlement not to stand trial rather than a mere defense to liability and, therefore, should be resolved at the earnest possible stage of litigation. Cf. Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Therefore, immunity is a question of law and is a proper matter for summary judgment under Miss. R. Civ. P. 56.

¶ 9. This Court reviews de novo a trial court’s summary judgment. Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 65 (Miss.1988). All evidence is viewed in the light most favorable to the non-movant. Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1354 (Miss.1990). See also Brown v. Credit Ctr., Inc., 444 So.2d 358, 362-65 (Miss.1983) and its progeny.

DISCUSSION

I. WHETHER THE TRIAL COURT PROPERLY GRANTED GREEN-VILLE’S MOTION FOR SUMMARY JUDGMENT.

¶ 10. The sole issue on appeal is whether the trial judge correctly granted summary judgment in favor of Greenville. En route to granting summary judgment, the trial judge held that Greenville was exempt from liability under the Mississippi Torts Claims Act, which states in pertinent part:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(v) Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care; [or]
(w) Arising out of the absence, condition, malfunction or removal by third parties of any sign, signal, warning device, illumination device, guardrail or median barrier, unless the absence, condition, malfunction or removal is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice.

Miss. Code Ann. § ll-46-9(l)(v) & (w). Mitchell and Jordan assert that Greenville, through its contractor, Hovas, created the dangerous condition and faded to warn drivers of the potential danger. Upon review of the record, there is no doubt that Greenville entered into a contract for the construction of a boat ramp and that the road was under construction at the time of the accident. However, the record indicates that precautions were taken to warn motorists of the dangerous road condition.

¶ 11. The affidavit of Steve Hovas, an officer of Hovas, reveals that the portion of Lake Front Road where the accident occurred had been “cut into” as part of the construction project on November 13, 1998. Hovas further stated that when he left the construction site at noon, twelve to thirteen hours prior to the accident, warning signs had been placed on both the north and south portions of Lake Front Road, indicating “Road Closed to Thru Traffic.” The placement of the signs on that date and time was corroborated by affidavit testimony of the project engineer, Bill Burle, Jr.

¶ 12. Further corroboration came from the affidavit of Kenneth Westbrook, a security guard for Greenville Gravel Company. At approximately 5:00 p.m. on November 13, 1998 (the afternoon prior to the early morning accident of November 14, 1998), Westbrook observed orange cones and a large warning sign in the middle of the roadway on the north side of the construction indicating that the road was closed. However, when Westbrook went to the scene shortly after the accident, at approximately 1:00 a.m. on November 14, 1998, he noticed that the sign previously upright at the north end was now “lying face up in approximately the middle of the roadway” with the orange cones scattered. In their rebuttal brief, Mitchell and Jordan concede that warning signs were posted at the site at the end of the work day. However, they argue that Greenville made “no subsequent inspection of the signs for a period of seven or eight hours before the accident.”

¶ 13. Their argument is misplaced because § ll-46-9(l)(w) does not require a governmental entity to actively patrol areas containing warning signs to see if a third party has removed the signs. The statute exempts the governmental entity from liability for the removal of warning signs “unless the absence, condition, malfunction or removal is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice.” Id. (emphasis added).

¶ 14. Mitchell and Jordan rely on pre-MTCA cases to place a duty on Greenville to patrol the streets to find downed warning signs. However, even prior to the enactment of the MTCA, this Court held that a municipality is not an insurer of the safety of motorists on its streets. City of Jackson v. Locklar, 431 So.2d 475, 479 (Miss.1983). There is nothing in the record to indicate that Greenville knew or should have known that the sign was tipped over. While Westbrook’s affidavit indicates that he had seen the sign “blown down by the wind” in the past, it does not indicate that he ever reported that fact to Greenville.

CONCLUSION

¶ 15. The circuit judge was eminently correct in granting summary judgment pursuant to the Mississippi Tort Claims Act and our cases interpreting the Act. For these reasons, the trial court’s grant of summary judgment and final dismissal in favor of Greenville is affirmed.

¶ 16. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB, EASLEY AND GRAVES, JJ., CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY. DIAZ, J., NOT PARTICIPATING.


author: CARLSON, J., McRAE, P.J., EASLEY, J.,

text:
    Freddie Lee JOHNSON, Individually and on Behalf of the Heirs at Law and Wrongful Death Beneficiaries of Tommie Lee Johnson, Jr., Deceased v. CITY OF CLEVELAND.
    No. 2001-CA-01687-SCT.
    Supreme Court of Mississippi.
    May 29, 2003.

      Ellis Turnage, Cleveland, attorney for appellants.
    Gerald H. Jacks, Cleveland, attorney for appellee.
   CARLSON, J.,

for the Court.

¶ 1. Aggrieved by the circuit court’s grant of summary judgment in favor of the City of Cleveland, Freddie Lee Johnson, individually and on behalf of the wrongful death beneficiaries of Tommie Lee Johnson, Jr., has appealed to this Court on the issue of whether there was sufficient evidence to create genuine issues of material fact as to whether the officer acted with reckless disregard for the safety and well-being of any person not engaged in criminal activity as defined by Miss.Code Ann. § ll-46-9(l)(c) (Rev.2002). Finding that the circuit court erred in granting the City’s motion for summary judgment in the face of conflicting evidence about the actions of the officer, we reverse the judgment of the Circuit Court of the Second Judicial District of Bolivar County and remand this case for a bench trial on all issues.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On March 5, 1997, between one and two o’clock in the morning, Officer Charles White with the Cleveland Police Department observed a black truck moving erratically near the intersection of Chrisman Avenue and White Street in Cleveland, Mississippi. After the driver of the truck refused to stop, Officer White requested back-up. A chase ensued and eventually headed south on Chrisman Avenue, west on Carver Street and then north on Church Street. The driver of the truck drove the truck into a driveway at 1322 Church Street, exited the truck while the truck was still running and ran alongside the truck, pushing the truck by the driver’s side door. As Officer White approached the vehicle, he could see the driver’s feet underneath the truck. Officer White commanded the driver of the truck to stop, but once Officer White reached the truck, the driver had already fled the scene. While Officer White waited for backup to arrive, he searched the area around the truck for the driver. Approximately one minute and a half after the driver of the truck had fled, Officer White heard a noise which sounded like tires squealing on Chrisman Avenue, the next street east of his location. Officer White then heard Officer Danny Oswalt call for an ambulance.

¶ 8. The noise heard by Officer White was the result of a collision between the vehicle driven by Officer Oswalt and a pedestrian, Tommie Lee Johnson, Jr. (Johnson). Officer Oswalt was at the intersection of Highway 8 and Chrisman Avenue when he received Officer White’s request for backup. In his deposition Officer Oswalt stated that in response to the call, he traveled south on Chrisman Avenue, immediately activating his blue lights. However, he did not use his siren, but he engaged his airhorn every ten to fifteen feet. Officer Oswalt maintained a speed of 45 to 50 miles per hour, and he slowed down as he approached intersections. The posted speed limit was 30 miles per hour. As he approached the intersection of Carver Street and Chrisman Avenue, Officer Oswalt could not see Officer White’s blue lights; therefore, he assumed Officer White had turned on Carver Street. As Officer Oswalt was approaching the intersection of Chrisman Avenue and Carver Street, he saw someone run out in front of him from the direction of Church Street. He applied his brakes and attempted to swerve, but he hit the pedestrian. After striking Johnson, Officer Oswalt immediately called for an ambulance.

¶ 4. On March 5, 1997, at approximately 1:30 a.m., Kevin Quantrell Young was standing in front of Nell’s Barber Shop at 1415 South Chrisman Avenue in Cleveland. In his deposition, Young stated that he saw Johnson walk by the barber shop at 1:40 a.m. headed north on the east side of Chrisman Avenue. After Johnson walked by, Young noticed a Cleveland Police Department patrol car with its blue lights on traveling south on Chrisman Avenue. He noticed that the patrol car was trying to stop a black truck. Young noticed another Cleveland Police Department patrol car traveling south on Chrisman Avenue. However, Young stated the second patrol car did not have its blue lights activated and the car was traveling at least 60 miles per hour. As the patrol car was preparing to turn right onto Carver Street, the car “veered wide to the left” and Young heard a loud noise. When Young arrived at the scene, he noticed that Johnson had been hit by the second patrol car. Young also stated that Johnson was not the driver of the black track being pursued by the first Cleveland Police Department patrol car because only a few minutes had elapsed between the time he saw Johnson walk in front of the barber shop to the time he saw Johnson lying on Chrisman Avenue. Young provided a statement to Officer Charles Bingham on March 6,1997.

¶ 5. Officer Bingham, a criminal investigator with the Cleveland Police Department, received a call between 1:45 and 2:00 a.m. to investigate the accident. Officer Bingham observed that the driveway where the truck came to rest was muddy, and he also observed footprints in the mud which led away from the track. Officer Bingham noted Johnson’s shoes were also muddy. However, an examination of the evidence collected by Officer Bingham did not produce sufficient evidence to link Johnson to the stolen black track. Upon Officer Bingham’s arrival at the accident scene, Johnson was transported to the Bolivar County Medical Center. Officer Bingham interviewed Officer White and Officer Oswalt and took statements from Cedric James, Cliff Williams, Shawn May-hall, Kevin Young and Robert Mitchell. After the accident, blood was drawn from Johnson and sent to the Mississippi Crime Lab where it was determined that Johnson’s blood tested positive for .10% ethyl alcohol.

¶ 6. Shawn Mayhall was standing in front of his aunt’s house when he observed Officer White’s pursuit of the black truck. Mayhall remembered seeing the track earner in the night because the driver jumped out of the truck and asked him a question. Mayhall first stated that when he saw the second patrol car pass by, the car was speeding, the blue lights were on, but the siren was not. However, only a few questions later, Mayhall stated he did not remember the second car having its blue lights flashing. He remembered the first car, Officer White’s car, with its blue lights activated; however, Mayhall stated the second patrol ear which was driven by Officer Oswalt did not have its blue lights activated.

¶ 7. As a result of his injuries suffered from the accident, Tommie Lee Johnson, Jr., died on April 14, 1997. On April 16, 1997, Dr. Steven Hayne performed a postmortem examination on Johnson’s body. Dr. Hayne noted that the immediate cause of death was aspiration of gastric contents resulting from the accident involving the City’s patrol car.

¶ 8. On May 26,1998, Freddie Lee Johnson filed this wrongful death action in the Circuit Court of Bolivar County, Mississippi, Second Judicial District, against the City of Cleveland. On August 24, 2001, the City filed its motion for summary judgment asserting that Freddie Lee Johnson had “no proof that Officer Oswalt, at the time of the accident, was acting in reckless disregard for the safety and well-being of Johnson.” After reviewing the evidence in the light most favorable to the plaintiffs, the circuit court granted summary judgment in favor of the City finding Officer Oswalt, “who was responding to a call, did not act with reckless disregard as defined by Miss.Code Ann. § 11 — 46—7(l)[sic].”

DISCUSSION

¶ 9. In order for a summary judgment motion to be properly granted, no genuine issue of material fact may exist, and the moving party must be entitled to judgment as a matter of law. Miss. R. Civ. P. 56(c). This Court reviews a trial court’s grant of a motion for summary judgment de novo. Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 63 (Miss.1988). The burden of proving that no genuine issue of material fact exists rests upon the party requesting the summary judgment. Id. at 63-64. The trial court must carefully review all evidentiary matters before it; admissions in pleadings, answers to interrogatories, depositions, affidavits, etc., in the light most favorable to the party against whom the motion for summary judgment is made. McFadden v. State, 542 So.2d 871, 874 (Miss.1989). See also Hancock v. Mid Am. Ins. Servs. Inc., 836 So.2d 762, 764-65 (Miss.2003).

When a motion for summary judgment is made and supported as provided in Rule 56, an adverse party may not rest upon the mere allegations or denials of his pleadings, his response must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. If any triable issues of fact exist, the lower court’s decision to grant summary judgment will be reversed. Otherwise, the decision is affirmed.

Miller v. Meeks, 762 So.2d 302, 304 (Miss.2000) (citing Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983)).

¶ 10. Here, the evidence before the trial court on the City’s motion for summary judgment consisted of the depositions of Officer Charles White, Officer Danny Os-walt, Investigator Charles A. Bingham and Shawn Mayhall; the affidavit of Kevin Young; the investigative file of the Cleveland Police Department; the autopsy report prepared by Dr. Steven Hayne and the FBI Crime Lab report.

¶ 11. Officer Danny Oswalt, the officer responding to Officer White’s request for backup, testified under oath in his deposition that he activated his blue lights as he turned off of Highway 8 and onto Chris-man Avenue. He stated he kept his blue lights on the entire time. When asked about his speed, Officer Oswalt stated he was driving approximately 45-50 miles per hour, but he would slow down at all intersections. Every 10 to 15 feet, Officer Os-walt used an air horn to alert traffic instead of activating his siren. As he was slowing down to turn onto Carver Street, Officer Oswalt saw someone running from his right. He slammed on the brakes and tried to swerve, but Officer Oswalt collided with the person. Although he stated the person came from his right, the left side of his patrol car received the most damage.

¶ 12. Officer Charles White, the officer in pursuit of the black truck, stated in his deposition that, he did not notice Officer Oswalt’s blue lights as Officer Oswalt passed by the scene. Shawn Mayhall, a bystander who was standing on Chrisman Avenue at the time of the accident, was also deposed. He first stated that Officer Oswalt was speeding, but his blue lights were flashing. When Mayhall was asked again only moments later about the second police car that passed by him, he stated that he remembered one car having blue lights flashing, but he felt sure it was the first car, Officer White’s patrol car. May-hall again stated that he remembered the second police car speeding down Chrisman Avenue, but he did not remember the blue lights being activated. Kevin Young gave a sworn statement in which he stated that Officer Oswalt’s patrol car, the second police car he saw on the night of the accident, was traveling at least 60 miles per hour without the blue lights flashing.

¶ 13. Based upon all of the evidence submitted on the motion for summary judgment, the trial court found that the officer who responded to the backup call did not act with reckless disregard pursuant to the Mississippi Tort Claims Act. Therefore, the City’s motion for summary judgment was granted.

¶ 14. Since Brown v. Credit Center, Inc., 444 So.2d 358 (Miss.1983), where we for the first time discussed our summary judgment procedure pursuant to Miss. R. Civ. P. 56, the cases are legion which hold that summary judgment is inappropriate if there is a genuine issue of material fact in accordance with Miss. R. Civ. P. 56(c). Today’s case falls into that category. “[Sjummary judgment is inappropriate where there are undisputed facts which are susceptible to more than one interpretation.” Canizaro v. Mobile Comms. Corp. of Am., 655 So.2d 25, 28 (Miss.1995). “And should it determine that the undisputed facts can support more than one interpretation, the Court will not hesitate to reverse and remand for a trial on the merits.” Id. at 28-29.

¶ 15. Here, critical factual disputes preclude summary judgment in this case. Officer Danny Oswalt made conclusory statements during his deposition to the effect that his blue fights were activated. However, conflicting testimony clearly disputes Officer Oswalt’s testimony. This conflicting testimony created a material factual dispute that must be resolved by the trier of fact, but only after a full evidentiary hearing by way of a bench trial. On remand a non-jury (bench) trial will be conducted by the trial judge pursuant to Miss.Code Ann. § 11-46-13(1). However, at a bench trial, as opposed to deposition testimony, affidavits, files and reports, there will likely be witnesses subject to extensive examination and cross-examination, and the learned trial judge, as the trier of fact, will then have the benefit of more than the cold words on paper via deposition testimony, affidavits, investigative files and reports. The trial judge will instead have the opportunity of not only hearing the sworn testimony of the witnesses but also observing their demeanor. See Culbreath v. Johnson, 427 So.2d 705, 708 (Miss.1983). Of course, we do not intimate any view as to the proper decision on remand after the bench trial. Such decision is left to the sound discretion of the trial judge upon a plenary trial.

CONCLUSION

¶ 16. It is for these reasons that we reverse the circuit court’s order granting summary judgment in favor of the City and remand this case for a bench trial consistent with this opinion.

¶ 17. REVERSED AND REMANDED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB, DIAZ AND GRAVES, JJ., CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION. EASLEY, J„ DISSENTS WITH SEPARATE WRITTEN OPINION.

McRAE, P.J.,

concurring in result only:

¶ 18. While I concur with the result reached by the majority which finds summary judgment inappropriate under the circumstances, I disagree with its rationale. Summary judgment was inappropriate because the limited facts presented would permit a finding that the officer acted in reckless disregard for the safety and well-being of others by traveling at an excessive speed with no siren in a residential neighborhood. For this reason, I concur in result only.

¶ 19. It is well-established law that immunity under the Mississippi Tort Claims Act will not be afforded if “the employee acted in reckless disregard of the safety, and well-being of any person not engaged in criminal activity at the time of injury.” Miss.Code Ann. § ll-46-9(l)(c). Reckless disregard has been defined to “embrace willful and wanton conduct which requires knowingly and intentionally doing a thing or wrongful act.” Turner v. City of Ruleville, 735 So.2d 226, 229-30 (Miss.1999) (citing Raney v. Jennings, 248 Miss. 140, 147, 158 So.2d 715, 718 (1963)). Factors which support a finding of reckless disregard in connection with police pursuits include: (1) the length of the chase; (2) type of neighborhood; (3) characteristics of the streets; (4) the presence of vehicular or pedestrian traffic; (5) weather conditions and visibility; (6) the seriousness of the offense for which the police are pursuing the suspect; (7) whether the officer proceeded with sirens and blue lights; (8) whether the officer had available alternatives which would lead to the apprehension of the suspect besides pursuit; (9) the existence of police policy which prohibits pursuit under the circumstances; and (10) the rate of speed of the officer in comparison to the posted speed limit. City of Jackson v. Brister, 838 So.2d 274, 279-80 (Miss.2003); City of Jackson v. Lipsey, 834 So.2d 687, 692-93 (Miss.2003); City of Jackson v. Perry, 764 So.2d 373, 377 (Miss.2000); Maye v. Pearl River County, 758 So.2d 391, 395 (Miss.1999). See also District of Columbia v. Hawkins, 782 A.2d 293 (D.C.Ct.App.2001).

¶ 20. Applying these factors to the facts presented, a reasonable fact finder could conclude that the “reckless disregard” exception to Miss.Code Ann. § 11^46-9(l)(c) applies. At least six of the ten factors enumerated above are present. The police pursuit was in a residential neighborhood on the South East side of Cleveland near a four-lane highway. The streets in the neighborhood are narrow and numerous. Even at two o’clock in the morning, traffic near the area was still present since the four-lane highway which enters Cleveland is only a few feet away. Additionally, pedestrians were present as evidenced by the fact that Johnson, the victim of the pursuit, was a pedestrian crossing an intersection. The pursuit was initiated only by an officer’s report of erratic driving. There were no claims that the suspect had committed any “criminal” acts other than a simple traffic violation. Additionally, the officer who precipitated the accident causing Johnson’s death was not even the officer who initiated the pursuit but a backup officer. As an alternative to pursuit, the officers could have identified the license plate of the vehicle since at the time of the accident the suspect had fled the vehicle on foot. The officer involved in the accident did not have on his siren, and it is disputed as to whether he activated his blue lights. Finally, the officer was driving 45 to 50 miles per hour in a 30 mile per hour zone, exceeding the speed limit at least by 15 miles per hour in the pursuit of a suspect who was fleeing on foot. These facts taken as a whole certainly would permit a finding that the officer acted in “reckless disregard of the safety, and well-being of any person not engaged in criminal activity at the time of injury.” Miss. Code Ann. § ll-46-9(l)(e). I would find that based on the facts presented, summary judgment was inappropriate since the plaintiffs offered sufficient evidence to permit a finding that the “reckless disregard” exception to immunity under Miss. Code Ann. § ll-46-9(l)(e) applies.

¶21. For this reason, I concur in the result reached by the majority, but write separately to explain the reasons I find the trial court’s grant of summary judgment to be reversible error.

EASLEY, J.,

dissenting:

¶ 22. After review of the record in this case, I must dissent. I find that the trial court did not err in granting the City’s motion for summary judgment. For this reason, I believe that the trial court ruling should be affirmed.

¶23. The Mississippi Tort Claims Act (MTCA), Miss.Code Ann. §§ 11-46-1 to - 23 (Rev.2002), provides immunity to government entities and employees who act within the course and scope of employment duties. Section 11 — 46—9(l)(c) provides in pertinent part:

A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury....

Miss.Code Ann. § 11 — 46—9(l)(c) (Rev.2002) (emphasis added). In addition, section 11-46-7(2) addresses the Act’s coverage when an employee is sued as follows:

An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which, the governmental entity may be liable, but no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee’s duties. For the purposes of this chapter an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense.

Miss Code Ann. § 11-46-7(2) (emphasis added).

¶ 24. This Court has stated that “[a]p-parent in the language [of Miss.Code Ann. § 11-46-9] is that those officers who act within the course and scope of their employment, while engaged in the performance of duties relating to police protection, without reckless disregard for the safety and well being of others, will be entitled to immunity.” McGrath v. City of Gautier, 794 So.2d 983, 985 (Miss.2001). Indeed, “[t]he purpose of Miss.Code Ann. § 11-46-9 is to ‘protect law enforcement personnel from lawsuits arising out of the performance of their duties in law enforcement, with respect to the alleged victim.’ ” Maldonado v. Kelly, 768 So.2d 906, 909 (Miss.2000) (quoting City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000)).

¶ 25. In granting the City’s motion for summary judgment, the trial judge in the case sub judice held that:

[This] [e]ourt after having reviewed the pleadings and supporting briefs and having viewed the evidence in the light most favorable to the [p]laintiffs, finds that the officer involved herein, who was responding to a call, did not act with reckless disregard as defined by Miss.Code Ann. § 11-46-7(1). As such, this [c]ourt grants the [defendant's [m]otion for [s]ummary [j]udgment.

¶26. The City contends that Officer Oswalt’s actions did not constitute reckless disregard. Officer Oswalt was responding to a call for back-up assistance running his blue fights and sounding his air horn. In considering the City’s motion for summary judgment and Johnson’s response thereto, the trial court had before it the following documents: (1) Officer White’s deposition; (2) Officer Oswalt’s deposition; (3) Officer Bingham’s deposition; (4) Mayhall’s deposition; (5) May-hall’s statement to Bingham; (6) the Mississippi Crime Laboratory Reports; (7) Young’s affidavit; (8) investigative reports and forms; (9) Dr. Hayne’s post-mortem examination report and (10) the FBI Laboratory Report.

¶ 27. Johnson, however, argues that Officer Oswalt’s actions amounted to reckless disregard. Johnson claims that the documents submitted to the trial court created a genuine issue of material fact as to whether Officer Oswalt’s conduct demonstrated a reckless disregard for Johnson’s safety and well-being. Johnson asserts that there remain fourteen disputed issues of fact which preclude summary judgment.

¶28. The fourteen disputed issues on appeal fall into two categories: (1) whether Johnson was the driver of the truck being pursued by the Cleveland Police Department who ultimately fled from Officer White on foot or whether Johnson was merely a pedestrian who was not engaged in criminal activity at the time that he was struck; and (2) whether Officer Oswalt, while in response to an emergency call, was speeding and traveling without activating his blue lights and siren, when he struck Johnson. Specifically Johnson’s fourteen disputed issues of fact are as follows: (1) whether Johnson was the driver of the truck pursued by Officer White; (2) whether Johnson was the person who fled from the abandoned truck and ran on foot in front of Officer Oswalt’s patrol car; (3) whether Johnson was walking north along the east side of Chrisman Avenue when he was struck by Officer Oswalt’s patrol car; (4) what were Johnson’s actions and conduct prior to and at the time he was struck by Officer Oswalt; (5) whether Johnson darted out from Officer Oswalt’s right, running from the west to the east; (6) whether Officer Oswalt applied his brakes and attempted to avoid hitting Johnson; (7) whether Officer Os-walt traveled with his blue lights on during his pursuit to provide back-up; (8) what was Officer Oswalt’s speed during his pursuit to provide back-up; (9) what was Officer Oswalt’s speed at the time of the collision with Johnson’s person; (10) whether Officer Oswalt’s actions and conduct indicated a reckless disregard for the safety and well being of Johnson and others as he proceeded; (11) whether Officer Oswalt’s actions and conduct arose to the level of reckless disregard; (12) whether Officer Oswalt knew or reasonably should have known of the presence of pedestrians from the night club located at the intersection of Carver Street and Chrisman Avenue; (13) whether the mud on Johnson’s shoe came from the area where the black truck was abandoned and (14) whether Officer Os-walt operated his vehicle with his blue lights on and at such a rate of speed that he could not stop within his range of vision.

¶ 29. While Miss.Code Ann. § 11-46-9(l)(c) does not specifically define the term “reckless disregard,” this Court has held:

Since “reckless disregard” is not defined by statute, Maldonado directs this Court’s attention to the various sources we have used in the past to define recklessness. This Court examined this issue in Turner v. City of Ruleville, and the Court looked to Black’s Law Dictionary for guidance as to the proper definition:
“Reckless disregard of the rights of others” is defined [a]s used in automobile guest law, means the voluntary doing by motorist of an improper or wrongful act, or with knowledge of existing conditions, the voluntary refraining from doing a proper or prudent act when such an act or failure to act evinces an entire abandonment of any care, and heedless indifference to results which may follow and the reckless taking of chance of accident happening without intent that any occur. ...
735 So.2d 226, 228-29 (Miss.1999) (quoting Black’s Law Dictionary 1270 (6th ed.1991)). Additionally, this issue was also revisited in Maye v. Pearl River County, where we cited a definition of recklessness given by the Fifth Circuit:
The terms “willful,” “wanton,” and “reckless” have been applied to that degree of fault which lies between intent to do wrong, and the mere reasonable risk of harm involved in ordinary negligence. These terms apply to conduct which is still merely negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if harm was intended. The usual meaning assigned to do [sic] terms is that the actor has intentionally done an act of unreasonable character in reckless disregard of the risk known to him, or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow.
758 So.2d 391, 394 (Miss.1999) (quoting Orthopedic & Sports Injury Clinic v. Wang Labs., Inc., 922 F.2d 220, 224 n. 3 (5th Cir.1991) (emphasis in original)). Additionally, this Court has held that “wantonness” is a failure or refusal to exercise any care, while negligence is a failure to exercise due care. Turner, 735 So.2d at 229 (citing Beta Beta Chapter v. May, 611 So.2d 889, 895 (Miss.1992)) (quoting Covington v. Carley, 197 Miss. 535, 541-42, 19 So.2d 817, 818 (1944)).

Maldonado, 768 So.2d at 909-10.

¶30. On quite a few occasions, this Court has reviewed other MTCA cases involving police actions. In Maldonado, Deputy Sheriff Maldonado was driving a patrol car to a service station for maintenance when he collided with a vehicle driven by Kelly. Id. at 908. At the time of the accident, a water tower partially blocked Maldonado’s view causing him not to see Kelly’s vehicle until right before the collision. Id. This Court held that while “Maldonado may have been negligent, his actions do not rise to the level of reckless disregard.” Id. at 911. Deputy Maldonado and Hinds County were entitled to immunity pursuant to § ll-46-9(l)(c). Id.

¶ 31. In McGrath, this Court has held that pursuant to MTCA, immunity was applicable to the City of Gautier and its police officer. McGrath, 794 So.2d at 987. In that case, the officer’s patrol car experienced brake failure causing it to collide with McGrath. Id. The Court based its holding, in part, upon the theory that municipalities are exempt from an injury caused by a police vehicle since the maintenance of a police department is a governmental function. Id. at 987.

¶ 32. In contrast, this Court found in Perry, that a police officer’s actions amounted to reckless disregard. City of Jackson v. Perry, 764 So.2d 373, 375 (Miss.2000). The police officer was on his way to dinner with fellow officers when he was involved in an accident. Id. At the time of the collision, the officer was speeding, but he was not on an emergency call and was not using either the siren or blue lights. Id. This Court held that the officer’s actions did show a reckless disregard for the safety and well-being of others and affirmed the trial court’s ruling. Id. at 378.

¶ 33. Likewise in Maye v. Pearl River County, 758 So.2d 391, 395 (Miss.1999), this Court held that a deputy sheriffs actions amounted to reckless disregard for the safety and well-being of others. The deputy backed up an incline knowing that he could not see oncoming traffic. Id. Maye, the other driver, blew her horn, yet the deputy did not. respond until his patrol car stuck her vehicle. Id. at 394.

¶ 34. In Turner v. City of Ruleville, 735 So.2d 226, 230 (Miss.1999), the trial court’s ruling to grant a motion to dismiss in favor of the City of Ruleville for failure to state a claim was reversed and remanded by this Court. Turner was injured in a collision with a drunk driver. Id. at 227. Tur'ner sued the drunk driver and the City of Ruleville alleging that prior to the accident a city police officer had stopped the drunk driver who later collided with Turner and allowed that visibly intoxicated driver to continue driving. Id. The Court concluded that “[b]y this alleged act, the officer allegedly showed a reckless or wanton and willful disregard for the safety of other drivers on the road, including Turner.” Id. at 230.

¶ 35. The facts in the case sub judice are distinguishable. The facts at hand show that Officer Oswalt was responding to a call to provide assistance to Officer White who was in pursuit of a driver evading his attempts to stop the truck. Officer Oswalt was at the intersection of Highway 8 and Chrisman Avenue when he responded to the call. In Officer Oswalt’s deposition, he testified that he turned on his blue lights when he turned onto Chrisman Avenue to assist Officer White. Officer Os-walt testified that he used his air horn every 10 to 15 feet and traveled at 45-50 miles per hour driving in the middle of the road. This pursuit occurred during the early morning hours. Johnson, who had a blood-alcohol level of .10%, ran out in front of Officer Oswalt’s patrol car. Officer Os-walt tried unsuccessfully to avoid hitting Johnson. Officer Oswalt called for an ambulance.

¶ 36. The record does not establish issues of material fact as to whether the police officers’ actions amounted to reckless disregard to the safety and well being of others. While not diminishing the tragedy of Johnson’s death, the fact that Johnson’s actions contributed to the collision and his death cannot be ignored. Under the specific facts of this case, I would find that the trial court did not err in granting the City’s motion for summary judgment.

      . The proper statute defining reckless disregard is Miss.Code Ann. § ll-46-9(l)(c).


author: McMILLIN, C.J.,

text:
    Charlotte JONES, a/k/a Charlotte Grider Jones, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00925-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2002.
    Rehearing Denied Feb. 4, 2003.
    Certiorari Denied May 29, 2003.

      George S. Shaddock, Pascagoula, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.
   McMILLIN, C.J.,

for the court.

¶ 1. Charlotte Jones was convicted by a Jackson County Circuit Court jury of the crime of armed robbery. On appeal, she alleges that her right to a speedy trial was denied, that improper testimony and impeachment were allowed, that a jury instruction was erroneously refused, and that the verdict was against the overwhelming weight of the evidence. We do not find merit in any of the issues. Therefore, we affirm.

Facts

¶ 2. Charlotte Jones and her husband, Willie Jones (now deceased), were involved in a real estate transaction with Kenneth and Teresa Fountain. The Joneses were to sell five acres of their land to the Fountains. They agreed on a sale price of $14,500, of which $1,300 had already been paid. Though no closing of the sale had occurred, a deed had been executed and given to the buyers.

¶ 3. There was evidence of the following events, though the proof was disputed. A few days before the robbery, Anthony Draughon entered into a scheme with Charlotte Jones, Keith Grider (Jones’ son), and Shirley Broadus (Draughon’s aunt), to rob the Fountains. Jones told Draughon that the Fountains had $13,000 for the pending real estate sale hidden somewhere in the bedroom of their house, along with the deed for the property. It was agreed that Grider would drop Draughon off at the Fountains’ home, and then Draughon would rob the Fountains and return to his aunt’s house.

¶4. On April 22, 1997, Draughon entered the Fountains’ home and walked to the bedroom, where Teresa Fountain was located. Draughon pointed a gun at her and demanded the money. Perhaps in order to deflect suspicion from those involved in the real estate transaction, he said, “Just give me the money your husband owes me for dope.... The $13,000 that your husband owes me for dope.” Fountain handed him the money, which was inside an envelope along with the warranty deed. Draughon tied her up and left the home, taking Fountain’s car keys, cash and cigarettes from her purse. He then drove off in her blue Honda Civic.

¶ 5. As Draughon was proceeding in the Fountain car, a rock was propelled by one of the tires and hit the windshield of another car. Tina Warden was driving, with Janet Jackson as a passenger. Warden drove after Draughon and caused him to stop. Warden demanded that Draughon pay for her damaged windshield. Drau-ghon took $140 from the stolen cash to pay Warden. Warden recognized Draughon and asked him if his name was Anthony. He said that it was not and gave her the money. At trial, Draughon confessed that he had recognized the woman and that in fact, she was married to one of his friends. Warden, Jackson and Teresa Fountain are sisters.

¶ 6. After paying Warden, Draughon drove to his aunt Shirley Broadus’ home. Broadus, Grider, Jones and Patsy Carpenter, Broadus’ sister, were present. Drau-ghon testified that he handed the envelope containing the money and the warranty deed to the group. The cash was divided among Draughon, Broadus, Grider and Jones. Jones retained the warranty deed. Draughon left his aunt’s house and went to pick up his girlfriend. Later on that day, Draughon went to a pet store and bought over $600 worth of pet supplies, including a ferret and a chinchilla. The receipts for these were placed into evidence at trial. Draughon was arrested later that evening. Two days later, Draughon implicated Charlotte Jones in the robbery. Jones was arrested on May 7,1997.

Discussion

I.

Speedy Trial

¶ 7. Jones asserts that the trial court erred in failing to grant her motion to dismiss based on a denial of a speedy trial. Jones was arraigned on this charge on May 12, 1998. Her trial was first scheduled for August 17, 1998. Several continuances over the following months were requested and granted. The trial finally began on January 8, 2001.

¶ 8. A statute requires that a defendant be brought to trial within 270 days after arraignment “unless good cause be shown, and a continuance duly granted by the Court.” Miss.Code Ann. § 99-17-1 (Rev. 2000). The Sixth and Fourteenth Amendments of the United States Constitution and Article 3, Section 26 of the Mississippi Constitution grant a defendant the right to a speedy trial. Because a defendant has these two separate rights to a speedy trial, we will examine each in order to determine whether there is merit to this claim.

A.

Statutory Right to a Speedy Trial

¶ 9. More than 270 days passed after arraignment until the first day of trial. Jones does not address the statutory right in any detail, and therefore the State does not respond to it. However, the record contains a detailed response by the State to the trial motion that sought dismissal based on a speedy trial violation. It contains a schedule of continuances and other motions which gave rise to the delays. The summary states that continuances duly granted caused 469 days of delay, that the several defendants caused 345 days of delay, and that only 162 days of the total time that transpired should be counted towards the 270 days within which an accused should be brought to trial.

¶ 10. The defendant does not indicate what part of this calculation might be in error. Indeed, Jones mentions the statutory issue with such brevity that the State asserted that only the constitutional issue was raised on appeal. We find no violation of the statutory right prior to the first trial.

¶ 11. A mistrial concluded the first effort to determine Jones’ guilt. Only 110 days passed until the second trial commenced. Even had the delay between the two trials been longer, the statutory right to a speedy trial would not have been implicated. The statutory right is satisfied once the defendant is brought to trial, even if that trial results in a mistrial. Only the constitutional speedy trial analysis is relevant thereafter. Handley v. State, 574 So.2d 671, 674 (Miss.1990).

B.

Constitutional Right to a Speedy Trial

¶ 12. Jones’ constitutional right to a speedy trial attached at the moment that she was accused, such as by arrest. Smith v. State, 550 So.2d 406, 408 (Miss.1989). To determine if her constitutional right to a speedy trial has been violated, certain balancing factors identified by the United States Supreme Court must be applied. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). These factors are (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of right to a speedy trial; and (4) whether the defendant has been prejudiced by the delay. Id. at 533, 92 S.Ct. 2182. All of these factors must be considered as a whole. Id.

¶ 13. Jones asserts that the length of delay from her arrest on May 9, 1997, to the date that her trial began on January 8, 2001, is evidence of a speedy trial violation. Delays of over eight months are presumptively prejudicial and satisfy the defense burden on the first factor. Smith, 550 So.2d at 408. The delay in this case was three years and eight months. The length of delay does not establish a speedy trial violation, but it is the threshold that leads to the need to analyze the remaining three Barker considerations. Wiley v. State, 582 So.2d 1008, 1012 (Miss.1991).

¶ 14. Jones attributes “political and judicial gymnastics” as the reason for the delay between the time of her arrest and the time of her initial trial. Her first court-appointed attorney, Keith Miller, was elected district attorney in 1999, effectively requiring him to withdraw from her case. From what the record reflects, between the original date of her scheduled trial, May 1998, to May of 2000, the State requested and was granted five continuances. Four of these continuances were due to the unavailability of the court, and one was due to the necessity of appointing a special prosecutor. An additional continuance was requested by Jones’ attorney, Keith Miller, who wanted a continuance because counsel’s presence was required at another court on the date that Jones’ trial was set. Two other continuances were granted to co-defendant Johnny Grider and one to co-defendant Shirley Broadus, thereby pushing back the date of Jones’ trial even more. The only continuance that can be attributed to Jones was her motion to sever the defendants, made in September of 2000.

¶ 15. Although Jones did not instigate the majority of these continuances, the State should not be penalized for these delays. There is no evidence that the requested continuances were unjustified. Continuances granted to the State, where the State has shown good cause for such a continuance, are not counted against it. Flores v. State, 574 So.2d 1314, 1318 (Miss.1990).

¶ 16. Next, we examine Jones’ assertion of right to a speedy trial. The only assertion that appears in the record is Jones’ January 2001 motion to dismiss for failure to provide a speedy trial. That was filed only weeks before the first trial and after almost the entire three-plus year delay had ended. Where a defendant first notes the delay and seeks to be discharged only when trial is about to commence, this does not amount to a prompt demand for a speedy trial. Perry v. State, 637 So.2d 871, 875 (Miss.1994).

¶ 17. The last factor to be examined is whether actual prejudice occurred because of the delay. Prejudice can occur in two ways: (1) the delay impaired the ability to defend such as by affecting the availability or recollections of witnesses, or caused the loss of other evidence; or (2) the delay has put restraints on the defendant’s liberty. Skaggs v. State, 676 So.2d 897, 901 (Miss.1996). Since Jones was apparently free on bond during this delay, it will only be necessary to determine if prejudice has occurred by impairing Jones’s ability to defend herself.

¶ 18. Jones claims that because of the nearly four-year delay in her trial, actual prejudice has occurred. She refers to a few moments in the trial where witnesses stated that they did not remember certain details of the events. Of the three specific instances Jones mentions in her brief, none of the witnesses indicated meaningful difficulty. Rather, they had trouble recalling specific details, such as the specific date that Charlotte Jones’s husband died, or the sequence of demands that Draughon made upon Teresa Fountain while robbing her.

¶ 19. Jones gives no examples of evidence being lost, witnesses becoming inaccessible, or any other indication that actual prejudice occurred because of the delay. Jones makes a vague assertion of prejudice caused by the State’s offering a key witness, Anthony Draughon, a plea bargain. The details and incentives of the plea bargain were thoroughly explored before the jury. We find nothing in the fact of this plea bargain to affect the potential prejudice arising from trial delay.

¶ 20. No prejudice was shown to have resulted from the delays in Jones’ trial. While the length of delay in Jones’ case is presumptively prejudicial, when balanced with the other Barker factors, we do not find that Jones was denied her speedy trial rights.

II.

Evidence of a Prior Conviction

¶ 21. Jones testified that on the day of the robbery, she was at her doctor’s office getting her prescription filled. Introduced into evidence was her prescription receipt and her doctor’s patient chart to confirm the date. The State sought to attack her truthfulness by producing evidence of a prior misdemeanor conviction for prescription forgery. The State reasoned that this evidence was relevant to show the defendant’s propensity for untruthfulness. By a rule of evidence, proof of a prior conviction is readily admissible to attack the credibility of a witness when the conviction involved a dishonest or false statement. M.R.E. 609(a)(2).

¶22. Jones asserts that the admission of this evidence was reversible error. When the prior conviction is of a crime that directly involves untruthfulness, such evidence is automatically admissible without the added requirement of undertaking a balancing that is required for proof of convictions of other kinds of crimes. Id.; Adams v. State, 772 So.2d 1010 (¶ 56) (Miss.2000). Forgery is the kind of crime covered by Rule 609(a)(2).

¶ 23. There was no error in the State using this prior conviction for impeachment.

III.

Jones’ Motion for Mistrial

¶24. During direct examination of Draughon, the State introduced into evidence a memorandum of understanding between Draughon and the State. The State requested that Draughon read some of its terms, in particular that Draughon was to testify to the truth during trial. The prosecutor then asked Draughon several times if he was telling the truth during his present testimony. Defense counsel objected to these questions, stating that they were bolstering the witness.

¶ 25. The court sustained the objection and conducted a hearing outside the presence of the jury on Jones’s motion for mistrial. The court overruled the motion, stating that the questions objected to “were simply some testimony about the terms of the agreement which were read, and ... there was [not] anything prejudicial with that.”

¶ 26. Since it is within a trial judge’s discretion to grant a motion for mistrial, our review of the denial of such a motion is for whether the discretion was abused. Pulphus v. State, 782 So.2d 1220 (¶ 10) (Miss.2001). The court instructed the State to refrain from conducting a word-for-word reading of the memorandum of understanding. The court also sustained the objection to asking Drau-ghon if he was testifying truthfully. No basis was found for granting a mistrial. We do not find evidence of an abuse of discretion in this ruling. Jones has not convinced us that she was prejudiced by the questions in any substantial manner such that starting the trial anew was required.

IV.

Jury Instruction

¶ 27. Jones’s request for a jury instruction that would define “reasonable doubt” was denied by the trial court. On appeal, Jones asserts that this instruction should have been granted because she believes the average juror needs to have a definition of the term.

¶28. The argument that a reasonable doubt definition is necessary has been considered and rejected in several precedents. The term “ ‘reasonable doubt’ defines itself and needs no definition by the court.” Barnes v. State, 532 So.2d 1231, 1235 (Miss.1988); see also Williams v. State, 589 So.2d 1278, 1280 (Miss.1991). The trial judge properly denied the instruction.

V.

Weight of Evidence

¶ 29. Jones asserts that the jury verdict was against the overwhelming weight of the evidence and a result of bias and prejudice by the jury. This Court will reverse a conviction on this basis only when we are certain that the verdict is so starkly opposed to the overwhelming weight of the evidence that to allow it to stand would be an unconscionable injustice. Eakes v. State, 665 So.2d 852, 872 (Miss.1995).

¶ 30. In determining whether there was an injustice of this sort, we consider all the evidence presented which supports the verdict and accept it as true. McClain v. State, 625 So.2d 774, 778 (Miss.1998). The State benefits from all reasonable inferences drawn from the evidence, since factual disputes concerning evidence are decided by the jury. Id.

¶ 31. The State produced the testimony of Kenneth and Teresa Fountain to establish that a land sale was being negotiated and that Jones was aware that the Fountains had a large sum of money for the sale at their house. Teresa Fountain’s testimony was that Jones knew the location of that money, since when Jones previously borrowed $300 she had followed Teresa into the bedroom to obtain the cash. Draughon’s testimony established the main events of the case as we have already related. Shirley Broadus’ testimony was supportive of Draughon’s story, with the exception that she denied any personal involvement with the burglary until after it was already committed. She also stated that she could not be certain whether or not Jones had conspired with Draughon for the robbery. However, her police statement had confirmed that she, Jones and Grider split the stolen money between themselves and Draughon. Gri-der’s testimony was not available at trial because he was deceased. However, the record indicates that he had pled guilty to the charges against him concerning his involvement with the robbery. Therefore, the only testimony provided to contradict the jury’s findings was from Jones herself.

¶ 32. Jones was convicted of armed robbery by being an accessory before the fact. In order to be guilty of such a charge, the defendant must do something that “will incite, encourage, or assist the actual perpetrator in the commission of the crime.” Malone v. State, 486 So.2d 360, 363 (Miss.1986). The jury found evidence to support this charge. Jones’s denials created questions of credibility for the jury to answer.

¶ 33. Upon reviewing the evidence presented in the light most favorable to the verdict, we find that the jury’s verdict was not against the overwhelming weight of the evidence.

¶ 34. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND RESTITUTION OF $3,513 IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.