author: hAMY, Judge.

text:
    CAJUN WELDING & MACHINE CO. v. Travis DEVILLE.
    No. 2003-0548.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.
    Joseph J. Bailey, Provosty, Sadler, de-Launay, Fiorenza & Sobel, Alexandria, LA, for Plaintiff/Appellant, Louisiana Insurance Guaranty Assoc. Cajun Welding & Machine Co.
    Edward E. Roberts, Neblet, Beard & Arsenault, Alexandria, LA,' for Defendant/Appellee, Travis Deville.
    Court composed of NED E. DOUCET, JR., Chief Judge, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   hAMY, Judge.

In this workers’ compensation matter, the employer and its insurer filed a disputed claim, contesting the necessity of a motorized scooter as palliative treatment for an employee injured in the course and scope of his employment. The workers’ compensation judge determined that the scooter was a medical necessity to which the employee-claimant was entitled. The employer and its insurer filed the instant appeal. For the following reasons, we affirm.

Factual and Procedural Background

The claimant, Travis Deville, asserts that on February 25, 1999, he sustained an injury to his back while working as a machinist at Cajun Welding and Machine Company. According to his testimony in the disputed-claim hearing on the matter, Mr. Deville and a co-worker were attempting to move a large compressor when it started to fall. Mr. Deville explained that he tried to break its fall, but the compressor brought him to the ground, leaving him in a bent position. This accident resulted in severe and debilitating injuries to his lumbar spine that required two surgeries: first, a discectomy at L4-L5 and L5-S1, and later, a laminectomy, decompression, and forinatomy with a repeat discectomy and posterior lumbar spinal fusion with pedical screws and a plate, likewise at L4-L5 and L5-S1. Mr. Deville’s testimony in this matter reflects that he has experienced substantially decreased mobility and pain after the accident and the two surgical procedures. He has been limited to sedentary activities and has not been able to return to work. Although Mr. Deville stated that he can now walk around his house and yard, the record shows that his treating orthopedist, Dr. Steven Nason, recommended to the Office of Workers’ Compensation that he receive a motorized scooter that would help him navigate through public places and assist in his social interaction with others.

Un November, 2002, shortly after the Louisiana Office of Workers’ Compensation director recommended that Mr. De-ville receive the scooter, Cajun Welding’s insurer, Louisiana Insurance Guaranty Association (LIGA), filed a disputed claim for compensation. In its claim, LIGA contended that the state-appointed independent medical examiner in the matter had failed to establish the medical necessity of such a scooter.

A rule was held in the matter in February, 2008, in the Office of Workers’ Compensation in Alexandria. In support of their appeal, LIGA and Cajun Welding produced letters written by Dr. G. Gregory Gidman, a Lafayette orthopedist, to whom LIGA and Cajun Welding had referred Mr. Deville for a second opinion as to the necessity of a motorized scooter. In his letter to LIGA and the Office of Workers’ Compensation, Dr. Gidman opined that the motorized scooter was not necessary because Mr. Deville had not suffered severe neurological impairment of his lower extremities; instead, Dr. Gidman recommended the use of a manual wheelchair when needed. In addition, Cajun Welding and LIGA introduced the deposition of the state-appointed independent medical examiner, Dr. Thad Broussard, a Baton Rouge orthopedist, in which Dr. Broussard opined that the scooter was not medically necessary. The workers’ compensation judge, however, determined that the motorized scooter was a medical necessity for Mr. Deville, and he ordered LIGA and Cajun Welding to furnish him with one.

Cajun Welding and LIGA have appealed the ruling, asserting that the workers’ compensation judge committed manifest error in determining that the motorized scooter is a medical necessity.

^Discussion

Cajun Welding and LIGA contend that the workers’ compensation judge committed manifest error in his determination that the motorized scooter requested for Mr. Deville is a medical necessity. They posit that the judge ignored the evidence produced at the rule which tended to show that not only was Mr. Deville able to move about unassisted, but use of the motorized scooter would pose a risk of his becoming dependent upon it, with a consequent risk of increased muscle atrophy. They further propose that the judge gave disproportionate weight to the deposition of the independent medical examiner. Cajun Welding and LIGA urge that we reverse the workers’ compensation ruling, arguing that it is evident that the scooter would not serve Mr. Deville’s best interest.

In the context of workers’ compensation, La.R.S. 23:1203(A) provides, in pertinent part, that employers must “furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal.A workers’ compensation judge’s determination as to the medical necessity of treatment and whether the treatment has been received due to a work-related accident are questions of fact. Fritz v. Home Fumiture-Lafayette, 95-1705 (La.App. 3 Cir. 7/24/96), 677 So.2d 1132; Alleman v. Fruit of the Loom-Crowley, 96-1246 (La.App. 3 Cir. 3/5/97), 692 So.2d 485. Pursuant to the Louisiana Supreme Court’s decisions in Rosell v. ESCO, 549 So.2d 840 (La.1989), and Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706, appellate courts are to review such determinations under the manifest error — clearly wrong standard. The supreme court has further stated that where conflicts in testimony have arisen, the appellate court may not disturb the fact finder’s | reasonable evaluations of credibility and “reasonable inferences of fact.” Rosell, 549 So.2d at 844 (citations omitted).

It is well settled that an employee is entitled not only to curative treatment for injuries sustained in the course and scope of employment, but is also entitled to palliative treatment. See Scott v. Piccadilly Cafeteria, 97-1584 (La.App. 3 Cir. 4/1/98), 708 So.2d 1296; Ferrier v. Jordache-Ditto’s, 94-1317, 94-1318 (La.App. 3 Cir. 5/17/95), 662 So.2d 14, unit denied, 95-2865 (La.2/2/96), 666 So.2d 1100. It is evident from the record in the instant matter that the scooter prescribed for Mr. Deville comprises part of his palliative therapy and is understood not to have utility in improving his injuries. In fact, each physician who has given input in the case has noted that Mr. Deville has reached maximum medical improvement and that he is not a candidate for further surgery.

When we review the record and the ruling according to the manifest error— clearly wrong standard as stated in Alte-rnan, 692 So.2d 485, we find that the evidence reasonably supports a finding that the scooter was necessary and that this determination by the workers’ compensation judge was not clearly wrong. It is apparent that the workers’ compensation judge gave full consideration to the various physicians’ opinions in deciding that Mr. Deville is entitled to the scooter. In his oral reasons for judgment, the workers’ compensation judge referred to the salient points of Cajun Welding’s and LIGA’s opposition, observing that although Dr. Gid-man and Dr. Broussard were of the opinion that the motorized scooter was not necessary, they had qualified their opinions by reference to the risk that Mr. Deville would grow to be dependent on the scooter, which would lead to further atrophy of his back muscles. The workers’ compensation judge noted that these opinions were speculative and that | Rthere was no indication that Mr. Deville would become dependent upon the scooter for locomotion. Instead, he observed, the scooter would provide significant palliative treatment to Mr. Deville, whom he noted was still in pain and was limited in mobility, in that it would facilitate his locomotion and his ability to participate in society, saying that “he is entitled to live as normal a life as possible in society, and that includes the ability to get out and function in places other than his own home.”

An examination of the record reveals that although Mr. Deville is able to travel short distances independently, he must use a cane, and even then, as he is prone to falling, he relies on his wife for assistance. Furthermore, Mr. Deville testified at the rule that it is difficult for him to use his manual wheelchair while in public places because the arm movements required to propel it put painful pressure on his lower back. He further notes that his wife does not have the strength to push the wheelchair. Moreover, Dr. Broussard, the independent medical examiner appointed by the Office of Workers’ Compensation to determine the necessity of the scooter, stated in his report that he believed the request was reasonable, citing its ability to improve Mr. Deville’s quality of life. The record reflects that all of the examining physicians concurred that a motorized scooter would not assist in Mr. Deville’s rehabilitation. This is not disputed. According to the evidence presented, the purpose of the scooter was to decrease the pain caused by using manual wheelchairs and walking in public places. The evidence presented supports a reasonable determination that the motorized scooter is necessary for Mr. Deville’s palliative therapy. Therefore, we find no merit in this assignment of error.

| .DECREE

For the foregoing reasons, the judgment ordering a motorized scooter for Mr. De-ville is affirmed. All costs of this proceeding are assigned to the plaintiffs-appellants, Cajun Welding and Machine Co. and Louisiana Insurance Guaranty Association.

AFFIRMED.


source: Caselaw Access Project

author: LBROWN, C.J.

license: Public Domain

text:
    STATE of Louisiana, Applicant, v. Keary WILLIAMS, Respondent.
    No. 38,379-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 25, 2003.

      Walter Edward May Jr., District Attorney, Tammy Lenn Gantt Jump, Assistant District Attorney, for Applicant.
    G. Paul Marx, Louisiana Appellate Project, for Respondent.
    Before BROWN, DREW, and LOLLEY, JJ.
   LBROWN, C.J.

The state seeks reversal of the trial court’s grant of a defense motion to suppress 48 pounds of marijuana discovered after a traffic stop and to suppress defendant’s inculpatory statements. Because the arresting officer had probable cause to search the vehicle after a valid traffic stop, as well as the passenger consent, the writ application is granted and made peremptory.

Facts

Former La. Trooper Scott Wright testified that he had been trained in how to recognize drug activity, including suspicious activity, the odor of marijuana, and how marijuana is packaged. In this case, Trooper Wright made a traffic stop on Interstate 20 in Bienville Parish, Louisiana, based on two instances of improper lane usage. The driver, Keary Williams, produced a Texas driver’s license. His hands were shaking and his conversation indicated that he was “extremely nervous.” He gave vague answers about his route of travel and said the car belonged to his girlfriend in Texas. The vehicle was emanating an “overwhelming odor of fabric softener sheets and an odor of raw marijuana.”

The passenger, Roy Magee, produced ID with shaking hands. He gave travel route answers that didn’t match what the driver had said. Trooper Wright still was smelling the odors coming out of the vehicle.

Trooper Wright verified that the car was not stolen, but learned that both men had extensive criminal histories for transportation of cocaine and weapons. Trooper Wright called for backup.

| gOnce the second police unit arrived, Trooper Wright gave Williams a ticket for the traffic violation and asked if he’d ever been arrested. He said, “not really.” Trooper Wright asked if there was any contraband in the vehicle. Williams said, “not that he knew of.” Trooper Wright requested consent to search, but Williams declined.

Trooper Wright then asked for and received consent to search from the passenger, Roy Magee. Trooper Wright searched the car and found 48 pounds of marijuana.

On cross, Trooper Wright said that prior to requesting consent to search, he had verified that the vehicle was owned by “some female out of Dallas.” After making the arrests for possession of marijuana, Trooper Wright advised both suspects of their Miranda rights. Williams didn’t make any statements at this time.

Trooper George Shirey testified that he assisted in the investigation. He advised defendant Williams of his Miranda rights after the arrest. Williams gave a full confession, including naming the source of the weed and describing how Williams had packaged it with fabric softener sheets to disguise the odor. The standard rights advice form, signed by Williams, was accepted into evidence.

The trial court held that the passenger had no right to consent to a search of the car after the driver had refused to consent and, based on those findings, granted the motion to suppress.

| ^Discussion

The instant search is valid both as a probable cause search and as a consent search. The validity of the traffic stop is not disputed.

The jurisprudence holds that where there is probable cause to search a vehicle, a search is not unreasonable if it is based on facts which would justify the issuance of a warrant, even though a warrant has not been actually obtained. U.S. v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 2164, 72 L.Ed.2d 572 (1982). This “automobile exception” to the warrant requirement no longer has an exigency requirement. If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment permits police to search the vehicle without more. Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999); Pennsylvania v. Labron, 518 U.S. 938, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996).

A state trooper’s detection of the odor of marijuana coming from a defendant’s car constitutes justification for a warrantless search. State v. Cohen, 549 So.2d 884 (La.App. 2d Cir.1989), writ de nied, 559 So.2d 135 (La.1990). A police officer who makes a valid traffic stop of the defendant’s vehicle has probable cause to search, based upon the faint odor of marijuana which someone was trying to mask by using air fresheners. State v. Reynaga, 93-1520 (La.App. 3d Cir.10/05/94), 643 So.2d 431. (The court also held that the search was valid based on probable cause, even if consent was not given.) Even a routine registration check, which led to a state trooper’s detection of the odor of marijuana, resulted in sufficient Aprobable cause to make a warrant-less search and seizure valid. State v. Arnold, 34,194 (La.App.2d Cir.12/06/00), 779 So.2d 840.

It is well settled that a warrant-less search conducted pursuant to a valid consent is permitted by the Louisiana and United States Constitutions. State v. Raheem, 464 So.2d 293 (La.1985); State v. Crews, 28,153 (La.App.2d Cir.05/08/96), 674 So.2d 1082. Oral consent to a search is valid. State v. Crews, supra. A consent is valid when it is freely and voluntarily given by a person who possesses common authority or other sufficient relationship to the premises or effects sought to be inspected. State v. Bodley, 394 So.2d 584 (La.1981); State v. Owens, 480 So.2d 826 (La.App. 2d Cir.1985), writ denied, 486 So.2d 748, (La.1986), cert. denied, 479 U.S. 840, 107 S.Ct. 145, 93 L.Ed.2d 87 (1986).

Common authority to consent arises from mutual use of the property to be searched, so it is reasonable to recognize that any co-inhabitant may permit a search or inspection in his own right; the other co-inhabitants have assumed the risk that one of them might permit the common area to be searched. U.S. v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); State v. Bodley, supra. Both the defendant and the passenger were guests in the third party’s car. Both had mutual use of the car. There is no indication that the defendant had exclusive control of the car or its contents. Thus, the passenger’s consent to the instant search, even though made after the non-owner driver’s refusal, was a valid consent.

IsThe court erred in its ruling. The passenger and driver had equal common authority to grant consent. The facts known to the arresting police officer gave probable cause to search and seize, even though the driver refused consent.

The court’s grant of the defense motion to suppress is reversed and the matter is remanded for further proceedings.

REVERSED and REMANDED.


author: SOUTHWICK, P.J.,

text:
    Frederick Dewayne CLARK, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00855-COA.
    Court of Appeals of Mississippi.
    Aug. 19, 2003.
    Rehearing Denied Oct. 21, 2003.
    Frederick Dewayne Clark (Pro Se), for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, for appellee.
    Before SOUTHWICK, P.J., LEE and GRIFFIS, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Frederick Clark was denied post-conviction relief in circuit court. On appeal, Clark alleges that the sentence he received after pleading guilty was illegal; therefore he should be allowed to withdraw his plea and have his conviction set aside. We disagree and affirm.

FACTS

¶ 2. In 1996, Clark pled guilty to separate charges in two different counties within the same judicial district. In Panola County, Clark pled guilty to operating a chop shop and received a sentence of ten years’ imprisonment with nine years suspended. Later that same day, Clark pled guilty to a DeSoto County charge of grand larceny and was sentenced to five years’ imprisonment, all suspended, to run concurrently with the Panola County sentence. The word “probation” did not appear in either sentence, but the trial judge stated that the “suspension is pending the Defendant’s future good behavior.” We assume that at some later time Clark engaged in bad behavior, the suspension of Clark’s sentence was terminated, and Clark was again incarcerated.

¶ 3. In April 2002, Clark petitioned for post-conviction relief. The suspended sentence given him for grand larceny was said to be illegal because of a statute that prohibits probation for previously convicted felons. By virtue of the conviction earlier in the day for operating a chop shop, Clark argues that by the time of his second plea he was a prior felon. The trial judge denied all relief.

DISCUSSION

1. Timeliness

¶ 4. The State argues Clark’s petition is barred from consideration because it was filed six years following the entry of his guilty plea. The post-conviction relief statute contains a three-year limitation period. Miss.Code Ann. § 99-39-5(2) (Rev. 2000).

¶ 5. Clark asserts that his right to be free of an illegal sentence is a fundamental one not subject to a procedural bar. The Supreme Court has so found. Ivy v. State, 731 So.2d 601, 603 (Miss.1999). An argument could be made that it is freedom from an illegally harsh sentence that is the fundamental right. Regardless, we review this claim on the merits.

2. Illegal sentence

¶ 6. Clark complains that the offer of a suspended sentence in exchange for his guilty plea was an illegal inducement. A Mississippi statute prohibits the suspension of a sentence and granting of probation to defendants previously convicted of a felony.

When it appears ... that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby, such court, in term time or in vacation, shall have the power, after conviction or a plea of guilty, except in a case where a death sentence or life imprisonment is the maximum penalty which may be imposed or where the defendant has been convicted of a felony on a previous occasion in any court or courts of the United States and of any state or territories thereof, to suspend the imposition or execution of sentence, and place the defendant on probation as herein provided, except that the court shall not suspend the execution of a sentence of imprisonment after the defendant shall have begun to serve such sentence. In placing any defendant on probation, the court, or judge, shall direct that such defendant be under the supervision of the Department of Corrections.

Miss.Code Ann. § 47-7-33(1) (Rev.2000) (emphasis added).

¶ 7. A justice on the Supreme Court has argued that since the statute provides that a judge may not “suspend the imposition or execution of sentence, and place the defendant on probation as herein provided,” the statute does not prohibit the suspension of a sentence so long as the defendant is not then placed on formal probation. See Robinson v. State, 836 So.2d 747, 751-52 (Miss.2002) (Carlson, J., concurring). Clark received a suspended sentence in which the probation was informal and unsupervised. Were we to adopt the concurring opinion’s analysis, Clark’s sentence would be an appropriate one. We therefore examine the reasoning.

¶ 8. What that concurring justice’s view would mean is that the legislature wrote a statute that permits the suspending of sentences regardless of whether defendants had prior felony convictions. However, the oversight provided by the formal probation system would be available only to first-time offenders. If the defendant had prior felonies, it was the legislature’s purpose to allow the suspending of the sentence and absolutely to prohibit the placing of that felon within the system for monitoring those on probation. Suspension would be possible, but supervision would not.

¶ 9. With respect, that is counter-intuitive. There is no discernible purpose as to why a first time offender who received a suspended sentence would be supervised in the probation system, but someone with multiple felony convictions also could be released early back into society yet could not be supervised. By considering the consequences of an interpretation, courts are when reasonably possible to avoid adopting a meaning that would lead to inexplicable results. Aikerson v. State, 274 So.2d 124, 127 (Miss.1973), overruled on other grounds in Conley v. State, 790 So.2d 773 (Miss.2001). Sometimes the results of a possible interpretation may be more extreme than here. Thus, the “Golden Rule” of statutory interpretation is the avoidance of absurdity. SingeR, SUTHERLAND STATUTORY CONSTRUCTION § 45.11, p. 61 (5th ed.1993). Toiling to interpret a statute in a manner that permits a judge’s desired effect is a natural tendency. Such an interpretation is likely erroneous, though, unless the text will support that the meaning is consistent with the legislative design. If a court encounters what it finds to be serendipitous looseness of statutory language, the tightening should be done reasonably as viewed in the context of the whole statute.

¶ 10. Some trial judges may wish to allow suspension of sentences for prior felons in worthy situations. Before deciding that is statutorily permitted, the question is whether the legislature was for some reason requiring that a suspension be outside the usual probation regime— not for first-time offenders, but only for those with multiple felony convictions. This would still be “probationary” because it would provide a time “period in which a person’s fitness ... is tested.” Definition of “probation,” in American Heritage Dict. of American Language 1443 (3d Ed.1992). It just would not be supervised probation, i.e., “probation as herein provided” in the statute authorizing suspended sentences. Miss.Code Ann. § 47-7-33(1) (2002). The suspension would be ended if the felon later proved undeserving. According to the Robinson concurrence, the terms of the suspension would be that the felon maintain “good behavior.” Robinson, 836 So.2d at 754 (quoting from definition of “suspension of sentence,” Black’s Law Dict. 1363 (6th ed.1990)). It would appear, though, that the “good behavior” phrase taken from the Black’s definition of a suspended sentence is not distinct from but is only a summary of the usually detailed terms of probation.

¶ 11. The Robinson concurrence concedes that suspended sentences without formal probation being imposed are still probationary. What determines failure is “bad behavior.” We note that the suspended sentence option without formal probation may be especially favored in the district in which Clark received his “good behavior” suspended sentence. That was also the district in which the Supreme Court justice who wrote the Robinson concurring opinion ably served as a circuit judge. In yet another example from the trial judge who sentenced Clark, the Supreme Court held that a sentence that was suspended “pending your future good behavior,” in fact created a probationary condition, the violation of which would end the suspension. Tunstall v. State, 767 So.2d 167, 170 (Miss.1999). Such sentences result in an unsupervised probationary suspension. Id. This is probation, but it is not “probation as herein provided” in Chapter 7 of Title 47 of the Code.

¶ 12. The Robinson concurrence concluded that “the prior convicted felony exception applies only when the sentencing judge is suspending the imposition of the sentence and placing the defendant on probation.” Robinson, 836 So.2d at 755. This is among the grammatically supportable translations of the statute. Yet it is inexplicable that the legislature would have allowed suspended sentences for all offenders, provided that first time offenders could serve them within the supervision of the probation system, and absolutely prohibited any supervision of the repeat offenders even when their suspensions were contingent, i.e., “probationary.” We should not “convict the legislature of unaccountable capriciousness.” Kellum v. Johnson, 237 Miss. 580, 587, 115 So.2d 147, 150 (1959).

¶ 13. The majority in Robinson did not address the issues raised in the concurring opinion but decided the case under a different analysis that we review below. The view of the Robinson concurrence, even if consistent with some trial court’s practice, is unpersuasive. We conclude that the proper interpretation of section 47-7-33 is that it prohibits the suspending of a prior felon’s new sentence and it prohibits the giving of probation “as provided herein” to a former felon. It does not require that both be done before the statute is violated. Thus even if unsupervised probation for a prior felon is not literally banned by this statute, a suspended sentence is. We note that if a “suspension” has no probationary conditions that could cause the entire sentence to be served, then analytically no part of the sentence has been provisionally withdrawn to shadow the felon thereafter. If there is a part that will not be served no matter how egregiously criminal the defendant’s future conduct might be, then that part is not suspended, it is ended.

¶ 14. We turn now to the Robinson majority. It found that a sentence could be suspended and probation given despite the defendant’s two prior felony convictions. This was the reasoning:

While Robinson was indicted as a habitual offender, what occurred in the trial court on November 21, 1996, was a common occurrence repeating itself numerous times every day in our trial courts— a defendant who was indicted as an habitual offender was allowed, through the plea-bargaining process, to plead as a “non-habitual offender.”

Robinson, 836 So.2d at 749. The Court quoted a rule that plea bargaining was encouraged and appropriate. Id. at 749-50, quoting URCCC 8.04 B.l. According to the same body of court rules, if the State seeks to convict a defendant under the habitual offender statutes, that is to be included as a charge in the indictment. URCCC 11.03. In Rule 11.03’s terminology, these habitual offender statutes provide for “enhanced punishment for subsequent offenses.” These statutes go further than just the prohibition of probation but require the imposing of the maximum sentence for the crime in some circumstances and life imprisonment in others. Miss.Code Ann. §§ 99-19-81 & 99-19-83 (Rev.2000). Under both statutes, probation or parole is prohibited. Id.

¶ 15. Even though the trial judge in sentencing Robinson knew that the defendant was a prior felon, the Supreme Court found that accepting the bargain that led to the dropping of habitual offender charges was an appropriate use of the trial court’s discretion. Robinson, 836 So.2d at 750. The Court said this about the separate statute that we have already discussed that prohibits a suspended sentence and probation to someone with a prior felony conviction: “We need not address § 47-7-33 as we find Robinson was not illegally sentenced for the reasons stated above.” Id. at 751.

¶ 16. In summary, Robinson was a pri- or felon. The trial court knew it. Despite those facts, the Supreme Court found that no independent issue arose under section 47-7-33 — a statute that prohibits the giving of a suspended sentence and probation to someone with a prior felony conviction. A factual distinction can be made between Robinson in which the accused was indicted as an habitual offender and here when Clark was not. Yet we can find no principled reason to allow a plea-bargained sentence suspension and probation only if a prior felon was facing either the maximum sentence or life imprisonment under the habitual offender statutes but not allow it if a prior felon had no such habitual charge brought. He is equally a prior felon in each situation.

¶ 17. The Robinson interpretation is within the power of the Supreme Court to make and even more clearly within our obligation to follow. Whatever else can be said about the matter, the knowledge that we have gained from recent appeals reveals that the practice of giving probation to defendants with prior felony convictions, at least if they plead guilty, is rampant.

¶ 18. Clark was not charged as an habitual offender. Consequently, there was no charge to drop from the indictment at the second guilty plea proceeding. Nonetheless, under Robinson we find that if as a result of a plea bargain a prior felon voluntarily accepts an offered suspended sentence and some form of probation, that this becomes by agreement an enforceable sentence.

¶ 19. We also note our analysis in another recent case. It bridges the divide between the statutory prohibition on giving prior felons suspended sentences and the allowance of it through a plea bargain. A “defendant should not be allowed to reap the benefits of an illegal sentence, which is lighter than what the legal sentence would have been, and then turn around and attack the legality of the illegal, lighter sentence when it serves his interest to do so.” Graves v. State, 822 So.2d 1089, 1092 (Miss.Ct.App.2002), cert. granted 829 So.2d 1245 (Miss.2002), writ withdrawn (May 1, 2003). The Supreme Court’s dismissal of the writ of certiorari in Graves as improvidently granted may not mean that it accepted the Graves reasoning. At least, though, the Supreme Court was willing to let that analysis remain to the extent it was consistent with its pronouncements in this area of the law. The Graves principle also causes us to uphold the sentence given to Clark in this case.

¶ 20. The question to be answered today is not whether trial judges who give such sentences are violating section 47-7-33. The narrower issue is the defendant’s right to challenge such a sentence years later. Our decision affirms the denial of post-conviction relief to a prisoner whose only complaint is that he received an im-permissibly lenient sentence and then, by his own subsequent action, squandered the benefit of that undeserved lenience. We do not consider that holding to be a radical departure from existing law. In a related context, the Supreme Court has held that an improperly lenient sentence can not be set aside just because an appellate court notes it sua sponte. See Lester v. State, 744 So.2d 757, 760 (Miss.1999). Illegality and remedy are distinct issues.

¶ 21. If a trial judge ratified a defendant’s acceptance of a prosecutor’s offer to suspend a sentence even though this is inconsistent with statute, the question at the post-conviction relief stage is whether a defendant is entitled to set it aside for that inconsistency. Graves usefully analyzes the issue in terms of estoppel, and says that the answer is “no.”

¶ 22. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

McMILLIN, C.J., BRIDGES, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ„ CONCUR. KING, P.J., AND THOMAS, J., CONCUR IN RESULT ONLY.


author: SOUTHWICK, P.J., CHANDLER, J.,

text:
    Alvin ROBINSON a/k/a Alvin Lenard Robinson a/k/a Bernard Hill, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00778-COA.
    Court of Appeals of Mississippi.
    Oct. 7, 2003.

      William Wayne Housley, Tupelo, attorney for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. Alvin Robinson was convicted of manslaughter by a Lee County jury. Among the issues alleged on appeal is that the evidence was insufficient, that the trial court unnecessarily admitted gruesome photographs of the victim, that the indictment should have been dismissed on speedy trial grounds, that improper testimony about the defendant’s knife was permitted, that peremptory challenges to jurors were erroneously resolved, and that a requested self-defense instruction should have been given. We find reversible error as to the last issue. We therefore reverse and remand.

FACTS

¶ 2. The conviction Robinson now appeals resulted from the third criminal trial on this charge. It is his second appearance before this court. The first trial ended in a mistrial, the second in a conviction which this court reversed and remanded for a new trial. Robinson v. State, 773 So.2d 943 (Miss.Ct.App.2000).

¶ 3. In November 1996, Robinson and a Mend, Derrick Knowles, were driving around Tupelo late in the evening. Robinson cut off another driver while merging into traffic. The driver of the second car, James Parks, became enraged. He followed Robinson until he stopped for a red fight.

¶ 4. Parks stopped his vehicle in the lane next to Robinson’s and the two men exchanged both verbal and non-verbal expressions of antipathy, ending with Parks’s offering to cause physical injury to Robinson and Robinson’s acceptance of that challenge. Parks, at six feet three inches tall and approximately 220 pounds, was considerably larger than Robinson. Armed with a knife he kept mounted to the dashboard of his car, Robinson exited his vehicle to meet Parks.

¶ 5. A brief struggle ensued, lasting perhaps two minutes. Parks realized Robinson was cutting him, disengaged and returned to his car where he informed his passenger, Randy Horner, that he had been stabbed and required medical care. However, he was only able to drive a short distance into a nearby parking lot before he lost consciousness. Horner stopped the vehicle and called for help. Parks had suffered eleven knife wounds, six of which were later found to be fatal. He died soon after the vehicle was parked without ever recovering consciousness.

¶ 6. Robinson, meanwhile, got back into his car, wiped the blood from his knife, commented to Knowles that he had really cut Parks, then drove home. He did not contact an ambulance or authorities. He was arrested a few days later and indicted for murder. Although the first trial ended in mistrial, the second resulted in a conviction for manslaughter. Following the reversal on appeal of that conviction, Robinson was again tried and convicted of manslaughter.

DISCUSSION

¶ 7. We reverse and remand because of a jury instruction issue. We discuss such other issues that might recur in a new trial. We also address the potential insufficiency of the evidence, because it would require a discharge of the defendant from further trial.

1. Sufficiency and weight of the evidence

¶ 8. Through each trial, Robinson has asserted self-defense as his justification for Parks’s death. He asserts he used his knife solely to defend himself from the assault of an enraged, much larger man who was beating him and causing justified fear of his fife. Robinson challenges the weight and sufficiency of evidence presented to defeat his stated defense.

¶ 9. In reviewing a claim of insufficient evidence, we accept as true the evidence favorable to the verdict and reverse only when we conclude that no reasonable juror could have found the defendant guilty beyond a reasonable doubt. Sullivan v. State, 749 So.2d 983, 993 (Miss.1999).

¶ 10. Two eyewitnesses testified at trial: Derrick Knowles, Robinson’s passenger, and Randy Horner, Parks’s passenger. Both testified that Robinson voluntarily left his vehicle to meet the challenge Parks had issued. They disputed Robinson’s testimony that he had been dragged from the vehicle. Neither thought Robinson was frightened. He did not lock the car doors or attempt to leave the scene, even after seeing that Parks was a considerably larger man than himself.

¶ 11. At the third trial, Knowles altered his testimony to some degree by stating that Robinson returned to the car for his knife after Parks knocked Robinson’s hat from his head. In the two previous trials, Knowles testified that Robinson took the knife with him when he exited the car. Horner testified that Robinson did not return to his car until the fight was over.

¶ 12. Another witness, Gail Jaggers, saw the fight from a passing vehicle. She described a “brief tussle” in which each man advanced and retreated at various points. Another passing witness, Jacques Bell, testified at the first two trials but was unable to be located for the third. His prior trial testimony was read to the jury but went unrecorded by the court reporter.

¶ 13. Taking as true all of the evidence presented that is consistent with the verdict, we find there was sufficient evidence to conclude that Robinson intended to inflict serious physical injury to Parks during the course of mutual combat, and that no self-defense justification existed.

¶ 14. In reviewing the weight of evidence presented, we will only overturn a verdict when our failure to do so would amount to an unconscionable injustice. Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). It is the duty of the jury to determine the credibility of each witness and the importance of each piece of evidence offered. Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979). The weight to be given any particular portion of evidence is not a matter for independent appellate determination when there is competent evidence to support the verdict. Id. There was sufficient and competent evidence presented to uphold the verdict.

2. Admission of photographs

¶ 15. Robinson objects to the admission into evidence of photographs of the body of James Parks. He argues that because he admitted to stabbing Parks, the photographs served no purpose other than to inflame the passions of the jury. Robinson also argues that the number of photographs admitted served no legitimate purpose.

¶ 16. This issue came before us on the first appeal. We found the photographs probative of the nature of the struggle between the two men and therefore admissible. Robinson, 773 So.2d at 951. Since there is no argument that the pictures admitted at this trial were different or were used in a different manner than before, our previous appellate ruling is part of the existing law of the case and further appellate review is not needed. Webster v. State, 817 So.2d 515, 522 (Miss.2002).

3. Motion for speedy trial

¶ 17. After remand, Robinson filed a written demand for a speedy trial on March 6, 2001. This trial did not commence until February 11, 2002, some 410 days after the mandate which remanded this case was issued. Robinson argues that the length of delay between remand and his third trial violated both his statutory and constitutional right to a speedy trial.

¶ 18. By statute, an accused must be brought to trial within 270 days of indictment unless good cause for the delay exists. Miss.Code Ann. § 99-17-1 (Rev.2000). This rule does not apply to re-trials after remand. Stevens v. State, 808 So.2d 908, 915 (Miss.2002). The constitutional requirement of a speedy trial remains, however.

¶ 19. Determining whether the constitutional right to a speedy trial has been violated requires a balancing of four factors: (1) the length of delay; (2) the reason for delay; (3) the defendant’s assertion of his right; and (4) the prejudice to the defendant as a result of the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). No one factor is dispositive and each case is reviewed under the totality of the circumstances. DeLoach v. State, 722 So.2d 512, 516 (Miss.1998).

¶ 20. The first day of the calendar on a speedy trial claim under the constitution is the date of a remand mandate. Stevens, 808 So.2d at 916. Delays of eight months or more are presumptively prejudicial to the defendant, but this alone is not sufficient for the defendant to prevail. Id. It requires the court to balance the remaining three factors against this delay. Id.

¶ 21. There were 410 days that elapsed before Robinson was again brought to trial. Robinson asserted his right to a speedy trial on March 6, 2001. However, just twenty-four days later, he sought a continuance that would last 143 days in a joint motion brought with the State. Because it was a joint motion, the continuance is treated as if it were sought only by the defendant for speedy trial analysis. Sharp v. State, 786 So.2d 372, 378 (Miss.2001). Robinson alone sought two additional continuances, the first in July 2001, for an unspecified length of time, and the second that began in October 2001 and lasted for 110 days. Both continuances were granted with the stated purpose of allowing defense counsel time to prepare. Thus, Robinson was the cause of substantial delay between March 6, 2001, and the date of trial. Thus, even with the assertion of his right to a speedy trial this weighs very heavily against him under the circumstances.

¶ 22. Even for delay chargeable to the State, Robinson does not explain the nature of any prejudice. His argument appears to rest solely upon the March 2001 assertion of his right to a speedy trial and subsequent delay as a per se violation of his constitutional right. We find, however, that under the totality of the circumstances, there has been no violation of Robinson’s right to speedy trial.

A Description of Robinson’s knife

¶ 23. Robinson next contends the court erred in allowing the State to describe Robinson’s knife as a “stabbing knife.” He claims this description was highly prejudicial, irrelevant and prevented him from receiving a fair trial. The description arose during the State’s direct examination of Tupelo Police Investigator Tony McCoy. The prosecutor asked McCoy to identify Robinson’s knife, and asked, “Could it be described as a stabbing knife?” The defendant immediately objected. The court properly sustained the objection. McCoy never answered the question and Robinson never requested a jury instruction, admonishment or mistrial.

¶ 24. “As a general rule, it is presumed that when the trial judge sustains objections the jury understands that the trial court disapproves of the testimony or inquiry in question.” Davis v. State, 472 So.2d 428, 433 (Miss.1985). The trial court did all that Robinson requested by sustaining the objection and barring any answer. Anything further Robinson wished done he was required to request at that time. Beasley v. State, 803 So.2d 1204, 1209-10 (Miss.Ct.App.2001). The trial court was not required to take further action sua sponte under these circumstances. Id.

5. Peremptory challenges

¶ 25. Robinson contests the trial court’s handling of peremptory strikes, both his own and those of the State. He argues that the court improperly permitted the State to strike black members of the veni-re based solely on race. Robinson also argues that his own use of peremptory strikes was improperly curtailed by the court’s refusal to permit him to strike white members of the venire.

¶ 26. Peremptory strikes may not be used in order to cause the systematic exclusion of members of an identifiable racial group from a jury. Batson v. Kentucky, 476. U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The party charging racial motive must first make a prima facie case of discriminatory action. Id. at 96, 106 S.Ct. 1712. Once made, the burden is placed on the party seeking to exclude the juror to articulate facially race-neutral reasons. Id. Third, the court must determine whether the reason is, in fact, race-neutral or merely a pretext for discriminatory intent. Id. at 97-98, 106 S.Ct. 1712. To this third step, Mississippi adds the requirement that the trial court “make an on-the-record, factual determination, of the merits of the reasons cited by the State for its use of peremptory challenges against potential jurors.” Hatten v. State, 628 So.2d 294, 298 (Miss.1993). This is a key consideration on this appeal, and thus we examine the Court’s language:

the trial judge, in determining which explanations are sufficiently race-neutral and which are not, should give an equally “clear and reasonably specific” explanation for his ruling.

Id., 628 So.2d at 299. In Hatten, the Supreme Court approved the findings when “the trial judge did not merely accept the specific reasons given by the prosecution at face value, but considered whether they were contrived.” Id.

¶ 27. What this means in practice is reflected in later caselaw. The Supreme Court in another precedent found that the findings made during the following examination were inadequate:

MR. DE GRUY [attorney for (Jeremiah) Robinson]: Your Honor, we make a Batson objection at this time. The State has exercised all five challenges against African-Americans, and we ask that they bring forward race neutral reasons.
THE COURT: All right.
MR. BUCKLEY [for the State]: Your Honor, Lawrence Jones, Panel 1, No. 3, was sleeping during Court’s instructions and during voir dire. I never saw him raise up. I couldn’t tell if he was awake or what was going on with him.
Number two, Rhonda Johnson. She was inattentive and failed to make eye contact with me and would never nod one way or another in this manner.
Number three, Floyd Tate. He teaches political science and sociology. We didn’t want him getting back in the jury room and explaining things in a sociological manner to the jury in any way. In fact, Gracie White and Alma Irving, both of them were inattentive. Especially, Mrs. Irving. I could not get her to make eye contact with me in any way.
Gracie White was not responsive to any questions, and it was as if I wasn’t even speaking. And I chose to strike them for those reasons, Your Honor.
MR. DE GRUY: Your Honor, we would object to all of those reasons. The law is now clear in Mississippi if they are going to base their strikes on things like sleeping, inattentive, no eye contact, the Court has to make a factual finding that those things are, in fact, true. We would ask the Court to make that determination that Mr. Jones was, in fact, sleeping.
THE COURT: Well, it would be virtually impossible for the Court to tell whether or not someone was making eye contact with someone else. I mean, that would be—
MR. DE GRUY: I think if you can’t make a factual finding that [sic] the strike cannot be allowed.
THE COURT: I find that they would be racially neutral reasons and the Court will accept the representations of the officer of the court.
It is clear from the record that the trial court did not make the necessary findings as required by Hatten and Puckett [v. State, 737 So.2d 322 (Miss.1999)]. Further, the record shows that defense counsel specifically requested the Court to make such findings. We therefore remand this case to the Hinds County Circuit Court to conduct a proper Batson hearing pursuant to Hatten and Puckett.

Jeremiah Robinson v. State, 761 So.2d 209, 212 (Miss.2000). The State made allegations of inattention that the trial judge could not confirm. The public defender argued that unless such a fact-finding was made, the strike could not be accepted. The judge accepted the prosecutor’s factual assertion, anyway. We do not believe that the Supreme Court was prohibiting a trial judge from accepting either side’s assertions about what they observed during voir dire. That would be unfair to the parties and perhaps to the trial judges. We interpret this Jeremiah Robinson opinion to mean that precise fact-findings must be made when the issue is raised, both that the events occurred and that articulating them as reasons for the strikes was not a pretext for racial discrimination.

¶ 28. This framework is also applicable to claims against the defendant’s use of peremptory strikes. Georgia v. McCollum, 505 U.S. 42, 54-55, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992).

¶ 29. Appellate courts afford great deference to a trial judge’s decisions in matters such as Batson challenges and reverse only for clear error. Lockett v. State, 517 So.2d 1346, 1349-50 (Miss.1987). Here, the State sought to use peremptory strikes on three black members of the venire. We will examine each for compliance with these rules.

¶ 30. Karen Weatherspoon. The State initially sought to excuse her for cause, stating she was sleeping during portions of voir dire. The judge refused. The State then used a peremptory strike for the same reason. The judge found the reason to be race-neutral but also commented that he had not noticed that Weatherspoon had been sleeping. The judge’s explanation was not elaborate. The only reasonable inference is that he accepted that the prosecutor in fact believed that the juror had been dozing. Under the Supreme Court’s Jeremiah Robinson decision, which dealt with a challenge to an allegedly inattentive juror, this was an insufficient fact-finding.

¶ 31. Patricia Thompson. The State sought to strike her because she attempted several times to be excused from jury duty and clearly was “reluctant to serve.” The court refused to permit this strike. No comment on the basis for the denial was made. No reversible error can arise from the refusal to allow a strike to the State.

¶ 32. Titus Goree. The State argued that he was young, unemployed, unmarried and appeared to lack ties to the community. This strike was permitted by the court without explanation. By inference, this means that the judge accepted that these were race neutral and non-pre-textual reasons. Here too, we do not find the “clear and reasonably specific” explanation. Hatten, 628 So.2d at 299.

¶ 38. Robinson attempted to exercise his peremptory strikes on four white members of the panel.

¶ 34. Mark Abernathy. He was fifty-one years old and worked as an auctioneer. Defense counsel said that he was struck because his background removed him from Robinson’s peer group. The court refused to allow the strike, stating only, “The same works both ways, you understand?” That was not an adequate fact-finding.

¶ 35. Robert Crumpton. This fifty-eight year old man was also struck because he was said not to be Robinson’s peer. The strike was disallowed without comment. Here, too, no finding exists.

¶ 36. Gwen Garrett. She was struck because she attended church with the prosecutor, had a grandson in law enforcement and would likely favor the prosecution. The court stated, “You will be required to accept that one also. I heard the voir dire, Counsel. None of those causes hold water.” In the voir dire, Garrett had mentioned the church and the grandson but denied that her impartiality would be affected. Why these did not “hold water” needed to be explained in fact-finding.

¶ 37. Michael Price. This fifty-four year old unmarried father of two, was employed by the Department of Human Services. He was struck because his status as a single parent indicated irresponsibility and Robinson had past dealings with DHS. The court permitted the strike without comment. Permitting a strike by the defense requires no explanation, as the defense does not complain and the State may not seek a new trial.

¶ 38. Erline Clark. She was fifty-seven years old, and her race was not stated. She was married to a former Lee County deputy. She was struck because of concern that she would be biased in favor of the prosecution. The strike was permitted without comment. No reversible error exists here.

¶ 39. In this case, the trial court required each side to explain the reasons for the strikes. Some strikes by both parties were disallowed, but for several of the strikes denied to the defense or permitted to the State, there was no adequate fact-finding. If this were the only error we found on the appeal, we would remand for a hearing at which further fact-finding could be made. Robinson, 761 So.2d at 212. However, we find one other error that requires a reversal and a remand for a new trial or other proceedings at the discretion of the parties and court. We discuss that error next.

6. Jury Instruction

¶ 40. Robinson argues he was improperly denied a self-defense jury instruction. The jury was given two other self-defense instructions, which he argues did not present his theory of the case. His defense was that as a much smaller man than the victim Parks, he was justified to use deadly force to ward off the threat of serious bodily injury reasonably posed by Parks in the altercation.

¶ 41. This is the language of the denied instruction, D-6:

If you believe from the evidence that the deceased was a much larger and stronger man than the Defendant, and was capable of inflicting great and serious bodily harm upon the Defendant with his hands, and that the Defendant had reason to believe and did believe as a man of ordinary reason that he was then and there in danger of such harm at the hands of the deceased and used a knife, with which he fatally stabbed the deceased, to protect himself from such harm, then the Defendant was justified, and your verdict shall be “not guilty” even though the deceas*ed may not have been armed.

The instruction was denied as being “repetitious of some other instructions” already given.

¶ 42. In cases of homicide, failure by the trial court to grant an instruction which presents the defendant’s theories of justification, defense or excuse is reversible error so long as there is some evidence to support the theory. Hester v. State, 602 So.2d 869, 872 (Miss.1992). We understand Robinson’s brief to state that this same instruction was given in his second trial. Regardless, it was not an issue in that appeal. Robinson v. State, 773 So.2d 948 (Miss.Ct.App.2000).

¶ 43. An instruction such as offered by Robinson has been approved when supported by evidence and no other instruction properly presents the defendant’s theory. Manuel v. State, 667 So.2d 590, 593 (Miss.1995). In Manuel, the female defendant argued that the male victim was much larger than she was and was hitting her with his fists. The court agreed that a “homicide with a deadly weapon is justifiable when the deceased assaults another with only his hands,” if the hands are used in a manner likely to cause death or serious bodily injury. Id. at 591-92. The failure to give an instruction such as Robinson offered here was reversible error. Id. at 593. The dissent cites a much earlier case, Brooks v. State, 360 So.2d 704 (Miss.1978). We find nothing useful in analyzing that opinion. The current state of the law is reflected in Manuel. Whether Brooks is distinguishable or not from Manuel, we have concluded that the present case is not. We therefore must apply the rule that was articulated more recently-

¶ 44. Even though there was error in Manuel, no error would exist here unless there was evidence introduced to support this defense. Even if there was contrary evidence, the defendant would be entitled to an instruction on his principal theory if there is some evidence to support it. Robinson testified that he feared for his life from the moment a stranger began chasing him through the streets of Tupelo, honking the car horn and flashing headlights. He testified that the driver of the vehicle was unknown to him; he could not even tell if the driver was a man or woman. Robinson also testified that he was completely unaware he was under attack until his car door was suddenly wrenched open and he was violently dragged out of his vehicle. By that time, he must already have gotten the knife since he stated that he never returned to the car to get it.

¶ 45. Under Robinson’s version of events, he would have gotten the knife before he made any assessment of the size of James Parks. Also under his own testimony, Robinson did not use the knife until he became reasonably fearful of serious bodily injury from the much larger man’s hitting him with his fists. We find that this was a theory of defense “supported by evidence, no matter how meager or unlikely,” that required an instruction. Manuel, 667 So.2d at 593.

¶ 46. We examine the other self-defense instructions that were given in deciding Robinson’s guilt in order to determine whether they might have obviated the need for this instruction.

If you find from the evidence in this case beyond a reasonable doubt that Alvin Lenard Robinson, ... did willfully, unlawfully, and feloniously, without authority of law, kill and slay James M. Parks without malice aforethought, in the heat of passion, by use of a deadly weapon, and not in necessary self-defense, then you shall find the defendant, Alvin Lenard Robinson, guilty of manslaughter. If the State has failed to prove one or more of these elements beyond a reasonable doubt, then you shall find the defendant not guilty.
The Court instructs the jury that if you find from the evidence in this case beyond a reasonable doubt that the defendant, Alvin Robinson, killed James Parks while resisting an attempted assault and that Alvin Robinson used more force than was reasonably necessary under the existing circumstances, then you may consider that fact as evidence in your consideration of guilt.
The Court instructs the jury that you are not to judge the actions of Alvin Robinson in the cool, calm light of after-developed facts, but instead you are to judge the defendants actions in the light of the circumstances confronting the defendant at the time, as you believe from the evidence that those circumstances reasonably appeared to the defendant on that occasion.
The Court instructs the jury that to make a killing justifiable on the grounds of self-defense, the danger to the defendant must be either actual, present, and urgent, or the defendant must have reasonable grounds to apprehend a design on the part of the victim to kill him or to do him great bodily harm, and in addition to this, he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground upon which the defendant acts.

¶ 47. Though the jury was told to consider Robinson’s actions in light of the manner in which the “circumstances reasonably appeared to the defendant on that occasion,” this does not explicitly raise the issue of the right in some situations to use a deadly weapon to ward off an attack with fists.

¶48. We turn, then, to the other instructions in Manuel to see if anything comparable to these Robinson instructions was given there. The Supreme Court does not indicate whether other self-defense instructions were given. The Court’s silence implies that other instructions were not a cure. The Manuel record reveals that two relevant instructions pertaining to self-defense were given:

Manuel Instruction S-l-A
The defendant, Nancy L. Manuel, has been charged by an indictment with the crime of murder for having caused the death of Wendell Norris.
If you find from the evidence in this case beyond a reasonable doubt that Wendell Norris was a living person and the defendant, Nancy L. Manuel, did wilfully and without the authority of law and not in necessary self-defense and of her deliberate design kill Wendell Norris by stabbing him with a knife, then you shall find the defendant guilty of murder.
If the State has failed to prove beyond a reasonable doubt any one or more of these elements, then you shall find the defendant not guilty.
Manuel Instruction D-3
The Court instructs the jury that not every taking of human life is a violation of the law because some forms of homicide are excused or justified by the law.
The Court instructs the jury that to make a killing justifiable on the grounds of self-defense, the danger to the Defendant, Nancy Manuel, must be either actual, present and urgent, or the Defendant, Nancy Manuel, must have reasonable grounds to apprehend a design on the part of the deceased, Wendell Norris, to kill her or to do her so great bodily harm, and in addition to this she must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the grounds upon which the Defendant, Nancy Manuel, acts.

¶ 49. In addition, both Manuel and Robinson here were given a “stand your ground” instruction, which permits a person to use deadly force if otherwise justified without the need to retreat.

¶ 50. Both of these quoted Manuel instructions are similar to instructions given for Robinson. In an abstract way, the instructions call on jurors to consider the reasonableness of the grounds on which the defendant may have been fearful of serious injury. In neither case was a specific instruction in which the facts of the disparate size and the right in some circumstances to use a deadly weapon in response to mere fists explained to the jury. Those instructions were not sufficient in Manuel to prevent reversal.

¶ 51. We can find no meaningful distinction between the Manuel instructions and the ones given here. The most important part of the defense was not explained, namely, that the defendant was justified in using a deadly weapon against the larger and intimidating Parks if Robinson reasonably perceived that he was in danger of death or serious bodily injury from Parks’s fists.

¶ 52. Manuel creates a problematic issue for self-defense instructions. Must an instruction be given on every factual issue of the reasonableness of the self-defense, at least if it embodies a legally correct theory? Relative size of participants in the fight, relative familiarity with fighting, and other factual issues may arise. Instructions that comment on the weight of evidence are to be avoided. Duckworth v. State, 477 So.2d 935, 937-38 (Miss.1985). Abstract instructions on legal principles which are not tied to the facts of the case are equally disfavored. John G. Corlew, The Mississippi Jury: Law & Prac. § 141 (1997). On balance, then, the usual instruction should fall between abstractness and emphasizing or weighing specific items of evidence.

¶ 53. The instruction offered by Robinson is almost identical to one discussed in Manuel. The only defect in Manuel was that it should have begun with the language “If you believe from the evidence that the deceased” was a larger man. Then it could make the other assertions that appear as Robinson’s instruction D-6. Manuel, 667 So.2d at 592. We find that Robinson’s counsel made the needed adjustments to the instruction and it was a proper one based on this evidence.

¶ 54. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

McMILLIN, C.J., KING, P.J., THOMAS, AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BRIDGES, LEE AND MYERS, JJ.

CHANDLER, J.,

Dissenting:

¶ 55. I join the majority on all issues except the jury instructions with which I respectfully dissent. I believe the jury was properly instructed and would affirm the trial court’s rulings on this issue.

¶ 56. The majority finds merit in Robinson’s argument that the trial judge failed to properly instruct the jury on Robinson’s self defense theory. The relevant facts pertaining to this issue are as follows. This was an incident of road rage which occurred around midnight at a main intersection in Tupelo, Mississippi involving two men. One of the men, Parks, was 6' 3", weighed approximately 220 pounds and was forty-four years of age. Robinson, 5' 9" of medium build, was thirty-five years of age. Parks who earned his living as a painter was a big man with a “big stomach.” Robinson worked as a carpenter and in the landscaping business as well as other physically demanding occupations. He was employed at the time of the incident as a Sheetrock hanger.

¶ 57. All of the evidence at trial other than Robinson’s testimony indicates that he was a willing participant in the altercation and showed no fear of Parks. But Robinson testified that he was afraid for his life and stabbed Parks approximately eleven times, including three times in the back, out of that fear. Four of the stab wounds were fatal, including one of the wounds to the back.

¶ 58. The question before this court is whether the jury was properly instructed based on the evidence presented. The instruction (D-6) which the majority holds Robinson was wrongly denied states:

If you believe from the evidence that the deceased was a much larger and stronger man than the Defendant, and was capable of inflicting great and serious bodily harm upon the Defendant with his hands, and that the Defendant had reason to believe and did believe as a man of ordinary reason that he was then and there in danger of such harm at the hands of the deceased and used a knife, with which he fatally stabbed the deceased, to protect himself from such harm, then the Defendant was justified, and your verdict shall be “not guilty” even though the deceased may not have been armed.

I believe the majority errs by holding that the defendant is entitled to the above instruction. There was no evidence to indicate that a man of ordinary reason would believe Parks, using only his fists, was capable of inflicting great and serious bodily harm upon Robinson. See Brooks v. State, 360 So.2d 704, 706-707 (Miss.1978).

¶ 59. It is within the discretion of the trial judge to correct an instruction so that it correctly reflects the facts of the case, or reject it if other instructions properly instruct as to the defendant’s theory. Hester v. State, 602 So.2d 869, 872 (Miss.1992). I believe the trial judge correctly rejected instruction D-6. The self defense instructions the trial judge did provide the jury are found in the majority opinion but I state them here for the convenience of the reader.

If you find from the evidence in this case beyond a reasonable doubt that Alvin Lenard Robinson, ... did willfully, unlawfully, and feloniously, without authority of law, kill and slay James M. Parks without malice aforethought, in the heat of passion, by use of a deadly weapon, and not in necessary self-defense, then you shall find the defendant, Alvin Lenard Robinson, guilty of manslaughter. If the State has failed to prove one or more of these elements beyond a reasonable doubt, then you shall find the defendant not guilty.
The Court instructs the jury that if you find from the evidence in this case beyond a reasonable doubt that the defendant, Alvin Robinson, killed James Parks while resisting an attempted assault and that Alvin Robinson used more force than was reasonably necessary under the existing circumstances, then you may consider that fact as evidence in your consideration of guilt.
The Court instructs the jury that you are not to judge the actions of Alvin Robinson in the cool, calm light of after-developed facts, but instead you are to judge the defendants actions in the light of the circumstances confronting the defendant at the time, as you believe from the evidence that those circumstances reasonably appeared to the defendant on that occasion.
The Court instructs the jury that to make a killing justifiable on the grounds of self-defense, the danger to the defendant must be either actual, present, and urgent, or the defendant must have reasonable grounds to apprehend a design on the part of the victim to kill him or to do him great bodily harm, and in addition to this, he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished.
It is for the jury to determine the reasonableness of the ground upon which the defendant acts.

The majority relies on Manuel v. State, 667 So.2d 590 (Miss.1995), in finding these instructions inadequate because there is no explicit language regarding Robinson’s right to use his knife against Parks’ attack with his fists. In my view, that case does not compel the trial judge in this case to use such language.

¶ 60. The Manuel case holds “where an attacker is much larger than the one attacked, the nature of the assault, though only with fists, might be such as to reasonably show that the one being attacked is in danger of great bodily harm, and therefore is justified in the use of a deadly weapon to defend herself.” Id. at 592 (citing Hinson v. State, 218 So.2d 36, 39 (Miss.1969)). The Court uses the word “might” and states the necessity to look to the “nature of the assault” to determine whether such a defense is reasonable. In Manuel a much larger man whom the female defendant knew to be violent told the defendant that he intended to kill her while beating her. Prior to stabbing the man, the defendant sustained injuries which were apparent to the police when they arrested her. Id. at 591. The victim was stabbed in the arm and the neck. There were no stab wounds to the victim’s back.

¶ 61. The facts in this case are similar to the facts in Brooks. In Brooks, the attacker struck the victim with his fists and a book while threatening to “beat up” the victim. Brooks, 360 So.2d at 705. There was no report of noticeable injuries. The court held that, absent serious bodily injury, it is nothing more than mere conjecture that one is in danger of suffering such injury. Id. Unlike Manuel, Robinson failed to submit evidence which shows it was reasonable for him to believe he was in danger of great and serious bodily harm. Robinson only established that Parks outweighed him. There is no evidence to indicate that Parks was stronger, quicker, more agile or physically dominant in any way. Although Robinson claimed he suffered a blow to his eye and his mouth, the deputy who arrested Robinson the afternoon following the incident noticed no injuries to Robinson. The female defendant in Manuel stabbed the victim two times from the front while suffering a beating at the hands of the victim, a person with a history of violence, who was telling her that he intended to kill her. It defies all logic that Robinson would stab Parks eleven times including three times in the back because he believed he was in fear of great and serious bodily injury at the hands of Parks.

¶ 62. Read as a whole the instructions provide the proper legal standard as it applies to self defense in this case. The trial judge instructed the jury to look at the facts and circumstances surrounding this incident and decide whether Robinson used more force than necessary in his defense of an attempted assault by Parks. In addition to those instructions, the jury was told to view the circumstances as they reasonably appeared to the defendant at the time. They were also instructed that Robinson’s actions were justified if he had reasonable grounds to believe Parks intended to do great bodily harm to Robinson and Parks was capable of inflicting such harm upon Robinson. I believe the learned.trial judge properly instructed the jury and I would affirm.

BRIDGES, LEE, AND MYERS, JJ., JOIN THIS SEPARATE WRITTEN OPINION.


author: GRIFFIS, J., for the court.

text:
    Bobby PENNINGTON, Individually, Appellant, v. DILLARD SUPPLY, INC., Appellee.
    No. 2002-CA-01687-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2003.
    Anne E. Pitts, Stephan L. McDavid, Oxford, attorneys for appellant.
    Roger M. Tubbs, Tupelo, attorney for appellee.
    Before McMILLIN, C.J., MYERS and GRIFFIS, JJ.
   GRIFFIS, J., for the court.

¶ 1. Dillard Supply, Inc. filed a collection action against Pontotoc Building Materials, Inc. and, its sole shareholder, Bobby Pennington. After a trial on the merits, the Circuit Court of Pontotoc County entered a judgment against Pontotoc Building Materials, Inc. and Bobby Pennington, finding Pennington personally liable for the debt. On appeal, Pennington admits that Ponto-toc Building Materials, Inc. owes Dillard Supply, Inc. the amount awarded in the judgment, but claims that the trial court erred in finding him personally liable for the debt. Finding the record insufficient, we must affirm.

¶2. Pontotoc Building Materials, Inc. was administratively dissolved by the Mississippi Secretary of State for failing to file an annual report. During the period of administrative dissolution, Pennington continued to operate the business and purchased supplies from Dillard Supply, Inc. After the account became delinquent, Dillard Supply, Inc. brought this collection action against the corporation and, individually, against its sole shareholder. The basis for Pennington’s individual liability was that the debt was incurred while Pon-totoc Building Materials, Inc was administratively dissolved. Subsequently, Ponto-toc Building Materials, Inc. was reinstated by the Mississippi Secretary of State. The court entered a final judgment against Pontotoc Building Materials, Inc. and Pennington, individually, awarding Dillard the amount of the debt, prejudgment interest and attorney’s fees, for a total judgment of $13,110.65.

¶ 3. In this appeal, Pennington contends that the reinstatement of the corporation, pursuant to Mississippi Code Annotated Section 79-4-14.22(c) (Rev.2001), relieves him of any personal liability. Section 79-4-14.22(c) provides, “when reinstatement is effective, it relates back to and takes effect as of the effective date of the administrative dissolution and the corporation resumes carrying on its business as if the administrative dissolution had never occurred.” Pennington argues that the debt was an act of the corporation and assumed by the corporation upon its reinstatement.

¶ 4. Dillard Supply, Inc. argues that Pennington has faded to provide this Court with a complete record and that the trial court properly found Pennington individually liable. Because we find the absence of the record to be determinative, we do not address the merits of Pennington’s assignment of error.

¶ 5. “It is a well settled rule that this Court will only consider facts found within the trial record. This Court does not rely on assertions made in briefs, but only on facts preserved within a record certified by law.” McClee v. Simmons, 834 So.2d 61, 64-65 (¶ 12) (Miss.Ct.App.2002). It is an appellant’s duty to justify his arguments of error with a proper record or the trial court will be considered correct. Am. Fire Prot., Inc. v. Lewis, 653 So.2d 1387, 1390 (Miss.1995). The record on appeal must show such portions of the record of the trial court as are necessary for a consideration of the questions presented. 4 C.J.S. Appeal and Error § 440 (1993). The absence of an adequate record may result in affirmance or dismissal. Id. Therefore, before we can address the merits of an appeal, we must have a complete record of the evidence presented, the rulings made, and the basis for the trial court’s decision.

¶ 6. Here, the record consists of a final judgment, Pennington’s motion for reconsideration with attached exhibits, Dillard Supply, Inc.’s response, Pennington’s rebuttal, and the court’s order denying the motion for reconsideration. In the final judgment, the court ruled against Pennington without elaboration. The final judgment was entered after a trial; however, the record does not contain a transcript of the trial. No documentary evidence, such as a promissory note, invoices, account information or pertinent documents, was presented in the record for our review. Without a complete record and transcript, we are not able to review the evidence presented at trial. The record on appeal must affirmatively show that the point complained of was presented to and determined by the trial court’s ruling to be adverse to the appellant. 4 Am Jur 2d Appeal and Error § 491 (1962).

¶ 7. “The appellant has the duty of insuring that the record contains sufficient evidence to support his assignments of error on appeal.” Oakwood Homes Corp. v. Randall, 824 So.2d 1292, 1293 (¶ 4) (Miss.2002). “Facts asserted to exist must and ought to be definitely proved and placed before us by a record, certified by law; otherwise, we cannot know them.” Id. In this case, it was incumbent upon Pennington to include the necessary information in the record. Pennington has failed to place the necessary record pertaining to his assignment of error before us, and we are therefore unable to consider his assignment of error. Therefore, the trial court’s judgment is affirmed.

¶ 8. THE JUDGMENT OF THE PON-TOTOC COUNTY CIRCUIT COURT IS AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. COSTS ARE ASSESSED TO THE APPELLANT.

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


author: GRIFFIS, J.,

text:
    MISSISSIPPI EMPLOYMENT SECURITY COMMISSION and Tyson Farms, Inc., Appellants, v. Andrew K. NORDSTROM, Appellee.
    No. 2002-CC-01522-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2003.

      Amy C. Felder, Lewis W. Bell, Walter James Brand, Jackson, attorneys for appellant.
    Frank J. Campbell, attorney for appel-lee.
    Before McMILLIN, C.J., MYERS and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Andrew Nordstrom filed a claim for unemployment benefits with the Mississippi Employment Security Commission. The claims examiner held that Nordstrom was entitled to benefits because Tyson had failed to show Nordstrom was discharged for misconduct. The appeals referee reversed the decision of the claims examiner finding that Nordstrom failed to show good cause for leaving his employment. The board of review affirmed this decision, and Nordstrom appealed to the Circuit Court of Warren County. The circuit court reversed, finding that Nordstrom reasonably believed he was terminated, and therefore, he was entitled to benefits. Tyson now appeals asserting that the MESC decision was based on substantial evidence. Finding no error, we affirm.

FACTS

¶ 2. Andrew Nordstrom was employed as a maintenance technician by Tyson Farms in Vicksburg, Mississippi. In early August of 2001, Nordstrom hurt his shoulder. Tyson granted medical leave for Nordstrom to have surgery to repair his rotator cuff. He returned to work in late August and worked without incident until September 30, 2001. Nordstrom missed his scheduled work days on October 1, 2, 3, 8 and 9. On each of these days, Nordstrom called in and informed Tyson that he would be absent.

¶ 3. Nordstrom returned to work on October 10th. Concerned about his absences, Nordstrom went to the personnel office where he was given a “track sheet” that listed the total number of excused and unexcused absences. The track sheet indicated the five days he had just missed plus a previous absence equaled six unexcused absences: At the top of the track sheet, it stated that six unexcused absences meant that an employee was terminated. Believing he was discharged, Nordstrom never returned to work.

¶ 4. Nordstrom then filed a claim for benefits with the MESC. The claims examiner found that Nordstrom was not terminated for misconduct and granted benefits. Tyson appealed, arguing that Nordstrom had voluntarily quit his job. A telephonic hearing was set with the appeals referee.

¶ 5. Nordstrom testified that he did not voluntarily leave his job, but was “discharged.” He testified that he called in every day he was absent and told them his shoulder was “giving him problems” and that he was taking medication. Nord-strom testified that he understood that Tyson has a policy that if you are taking any kind of medication you cannot work.

¶ 6. Nordstrom testified that he went in October 10th, “ready to work.” When he went to the personnel office to check his absences, the track sheet indicated that he was terminated. When he could not find the plant manager, Nordstrom testified he asked the plant secretary if the track sheet “meant what he thought it did.” Nord-strom testified she told him “it meant exactly what it said. I was terminated.”

¶ 7. Nordstrom testified that he then went to his supervisor Jimmy Algood. Nordstrom testified that he told Algood that he was terminated. According to Nordstrom, Algood told him a medical excuse “might” remedy the problem. Nord-strom testified that he never brought in a doctor’s excuse because he did not actually go see a doctor during the time he was absent. Nordstrom also stated that he was not aware that he had fifteen days to obtain a medical excuse, nor did the notice of termination inform him of this policy. Nordstrom testified that he believed he was terminated on October 10th.

¶ 8. Sharon Robinson, the plant personnel manager, was the only Tyson employee to testify. Robinson testified that Tyson has a company policy that when an employee has six absences that are unexcused and the employee does not have any type of documentation for it, the employee is terminated. However, if the employee provides a medical excuse in fifteen days, the employee will not be terminated. Tyson also considers a two days absence without calling in a voluntary termination. Robinson also testified that it was company policy for an employee to bring in their medication and the plant nurse would make a determination of whether they can work or not. A copy of Tyson’s employment policies was not provided in the record.

¶ 9. Robinson testified that Tyson’s records indicated that Nordstrom had called in for the days of October 1, 2, 8, 8, 9, and 10; however, Tyson’s records disclosed the reason for the absence was personal. Robinson also testified that calling in would not have excused the absences and that Nordstrom was required to provide medical excuses for such absences. Robinson testified that Tyson believed Nord-strom resigned from his employment as a “two day no report” and that he was not discharged. She admitted that she had not personally spoken with Nordstrom nor was she “thoroughly aware” of his case because she had only “arrived [at Tyson] in July.”

¶ 10. The appeals referee determined that Nordstrom had failed to show “good cause for leaving his employment and benefits were terminated.” Nordstrom filed a notice of appeal with the board of review, which affirmed the ruling of the appeals referee. Nordstrom then appealed to the circuit court which reversed the opinion of the Commission and awarded benefits to Nordstrom. The circuit court based this ruling on Huckabee v. Miss. Employment. Sec. Comm’n, 735 So.2d 390, 396(¶ 22) (Miss.1998), which held that when an employee reasonably believes he is terminated, then the employee is entitled to benefits. Tyson has perfected this appeal asserting the circuit court exceeded its authority in reversing the MESC.

STANDARD OF REVIEW

¶ 11. Mississippi Code Annotated section 71-5-531(Rev.2000) governs the standard of review for appealing a MESC decision. Section 71-5-531, in pertinent part, provides: “[i]n any judicial proceedings under this section, the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.” Miss.Code Ann. § 71-5-531 (Rev.2000). “The Board’s findings of fact are conclusive if supported by substantial evidence and without fraud.” Hoerner Boxes, Inc. v. Miss. Employment Sec. Comm’n, 693 So.2d 1343, 1346-47 (Miss.1997) (citing Richardson v. Miss. Employment Sec. Comm’n, 593 So.2d 31, 34 (Miss.1992)).

ANALYSIS

1. Whether the circuit court exceeded its authority in reversing the Mississippi Employment Security Commission’s decision to deny unemployment benefits to Andrew Nordstrom.

¶ 12. Tyson asserts that the decision of the MESC was based upon substantial evidence, and under the applicable standard of review, it was improper for the circuit court to overturn the decision. Tyson claims the circuit court exceeded its authority, and substituted its own judgment for that of the MESC.

¶ 13. To support this claim, Tyson relies on NCI Bldg. Components v. Berry, 811 So.2d 321 (Miss.Ct.App.2001). In Berry, Calvin Berry committed a costly error to the company and was disciplined for it. Id. at 324(¶4). On the same day, Berry asked his supervisor, Jimmy Thigpen, how many paid days of sick leave he had. Id. Berry learned he had two days available and told his supervisor he planned to used those days and would be out the next two days of work. Id. NCI’s company policy required all employees to call in to work if they are going to be out. Id. at 324(¶ 5). When Berry returned to work two days later, he asserted that a supervisor, Scottie Williams, fired him from his employment. Id. at 325(¶ 7). When Williams testified, he denied this, and claimed Berry told him he wanted to quit. Id. Williams testified he told Berry that if he wanted to leave, he needed to speak to his immediate supervisor, Thigpen, and arranged a meeting between them for 3:00 the same afternoon. Id. Several other NCI supervisors corroborated this testimony. Id.

¶ 14. Berry testified that he chose not to attend the meeting with Thigpen. Id. at 325(¶ 8). He also admitted that later the same day, another supervisor, Billy Taylor, spoke with him on the phone and assured Berry that he had not been terminated because Williams did not have the authority to take such action. Id. Berry testified that Taylor told him to come in and meet with Taylor and Thigpen in order to “iron everything out.” Id. Berry testified that Taylor told him they had no intention of letting him go. Id. Berry admitted he ignored this request and did not go in that afternoon to straighten things out with his immediate supervisors. Id.

¶ 15. Berry never reported back to work. Id. at 325(¶ 9). NCI’s termination papers stated that Berry had voluntarily quit his position without notice to his employer. Id. at 326(¶ 9). The MESC agreed with NCI and found Berry had abandoned his job without notice and was therefore not entitled to unemployment benefits. Id. Berry appealed and the circuit court reversed, finding that Berry was fired from his employment with NCI. Id. This Court reinstated the decision of the MESC finding that no direct evidence supported Berry’s claim other than his own testimony. Id. at 327 (¶ 15). Furthermore, NCI provided multiple witnesses to corroborate that Berry was not fired from his position at NCI, but rather, he quit his job by not returning to work. Id.

¶ 16. Tyson claims the facts in Berry are substantially similar. Tyson argues that Nordstrom’s assertion that he believed he was terminated is unsupported by the record. Tyson claims Nordstrom’s belief is based on the information given to him by the plant secretary who, like the supervisor in Berry, did not have the authority to fire Nordstrom. They also argue that Nordstrom’s supervisor, Algood, told him the problem could be remedied by providing medical documentation of his absences. Tyson claims this is analogous to the supervisors in Berry informing Berry that he was not terminated.

¶ 17. This Court finds that the facts surrounding Nordstrom’s case are substantially different from the facts in Berry. First, by his own testimony, Nordstrom’s belief that he was terminated was based on the wording of a Tyson document. The plant secretary thereafter reinforced what Nordstrom already believed, that he was terminated. Second, when Nordstrom told his immediate supervisor, Algood, that he was terminated, Algood did nothing. Al-good’s only response was to tell Nord-strom that a medical excuse “might” clear up the problem. Algood never informed Nordstrom that he would not be terminated if he provided medical documentation. Finally, in Berry, this Court based its decision on the fact that NCI provided several corroborating witnesses to support its position. Tyson’s only witness was the plant personnel manager, Robinson, who had no first hand knowledge of the events nor was she employed by Tyson when the incident took place.

¶ 18. This case is more in line with Huckabee v. Miss. Employment Sec. Comm’n, 735 So.2d 390 (Miss.1999). In Huckabee, Barbara Huckabee was employed as a cashier at Lyman’s. Id. at 392(¶ 4). According to Huckabee, on September 28, 1995, approximately five minutes before her shift ended, she spoke with her manager at Lyman’s, Judy Saucier, about her employment conditions. Id. at 392(¶ 5). Huckabee was concerned about being scheduled to work as a cook full-time, which she felt was a two-person job. Id. Saucier asked Huckabee if she was looking for another job. Id. Huckabee responded that she would be looking for another job because of the burden that had been placed on her, but she would continue working as long as she possibly could. Id. Saucier then stated that Lyman’s would have to find someone else, and Huckabee assured Saucier that she would give her two weeks’ notice if she did leave. Id. Huckabee asked if Saucier was trying to get rid of her. Id. Huckabee stated that Saucier giggled, threw her hands in the air, and stated, “I’m hiring someone else.” Id. Huckabee interpreted this to mean that she had been terminated. Id.

¶ 19. The president of Lyman’s, Robert Dean Hyde, testified as the employer’s representative. Id. at 393(¶ 6). He stated that he was “basically” in charge of all the hiring and the firing at Lyman’s. Id. He testified that Saucier had no authority to hire and fire employees. Id. Hyde testified that he had no knowledge of what transpired between Huckabee and Saucier, but Huckabee was under no threat of discharge at anytime. Id.

¶ 20. The ME SC found that Huckabee was not discharged, but that she left her employment voluntarily and had failed to show good cause for leaving her employment. The circuit court affirmed this decision. The Mississippi Supreme Court determined that the proper question for the court was whether it was reasonable for Huckabee to interpret her supervisor’s statement to mean her employment had been terminated. Id. at 396(¶22). The court held that the statement, “I’m hiring someone else,” is language a reasonable person would interpret as a discharge. Id. The supreme court reversed and remanded for a determination of the amount of compensation owed Huckabee. Id.

¶ 21. This Court, therefore, must ask whether it was reasonable for Nordstrom to believe he had been terminated on October 10th. We find that it was. Nord-strom was given a Tyson document — the track sheet — which documented all his absences. He was aware of Tyson’s policy that after six unexcused absences, an employee is terminated. The track sheet documented six unexcused absences and clearly indicated that “[tjermination occurs when you have attained six occurrences.” Nordstrom believed he was terminated. The plant secretary confirmed Nord-strom’s belief. Algood, his supervisor, did nothing to assuage Nordstrom’s belief, and only suggested that a medical excuse “might” straighten out the problem.

¶ 22. Under these circumstances, we find that a reasonable person would believe they were terminated on October 10th. Nordstrom’s subsequent failure to report to work on October 13th and 14th, cannot be classified as “misconduct” in view of the prior notice of termination he received on October 10th. See Wheeler v. Amóla, 408 So.2d 1381, 1383 (Miss.1982).

¶ 23. Accordingly, we find that the ruling of the circuit court was without error, and we affirm.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY IS AFFIRMED.

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

      . While Tyson’s records may indicate that Nordstrom called in sick on October 10th, the trial record clearly disputes this. The track sheet given to Nordstrom is dated October 10th, so there is no doubt he was at work on this date.