author: WALLER, Presiding Justice,

text:
    ST. PAUL MERCURY INSURANCE COMPANY v. MERCHANTS & MARINE BANK.
    No. 2003-CA-01869-SCT.
    Supreme Court of Mississippi.
    Aug. 26, 2004.
    Rehearing Denied Oct. 7, 2004.
    Mark D. Herbert, Lisa Anderson Rep-peto, Jackson, attorneys for appellant.

      David W. Mockbee, Jackson, attorney for appellee.
   WALLER, Presiding Justice,

for the Court.

¶ 1. This appeal arises from an inter-pleader action in which the Gulfport School District deposited $227,738,16 with the Harrison County Circuit Court. Defendants St. Paul Mercury Insurance Company and Merchants and Marine Bank both claimed priority to differing amounts. The circuit court granted summary judgment to Merchants in regard to. the amount of the interpled funds requested and granted summary judgment to St. Paul in regard to the amount of the interpled funds remaining after payment to Merchants. We reverse the circuit court’s decision and remand with instructions to enter a judgment in favor of St. Paul for the full amount.

. FACTS

¶ 2. In November of 2000, Schwegman Constructors and Engineers, Inc. entered into a construction contract with the School District for a construction project. Under the contract, the. School District was to pay Schwegman Constructors a total of $598,000.00 in exchange for construction services. St. Paul issued a performance bond for Schwegman Constructors in favor of the School District for $598,000.00.

¶ 3. In June of 2001, Schwegman Constructors obtained a loan of $105,000.00 in working capital from Merchants. Merchants secured the loan by an assignment of Schwegman Constructors’ application to the School District for payment number eight in the amount of $132,192.17. The loan agreement, entitled “Multipurpose Note and Security Agreement,” provides, “I give you a security interest in the fol-lowing_” The contract also made reference to the agreement as “a loan pursuant to and ... entitled to the benefits of the security agreement,” as well as making numerous references to the assignment as “collateral.” Furthermore, Merchants contends that “Merchants’ loans to [Schwegman Constructors] ... were secured by the [Schwegman Constructors] Progress Payment No. 8 and other assignments from other projects.” • Finally, both Herman Smith, Merchants’ Vice President, and Joe P. Schwegman, President of Schwegman Constructors, stated in sworn affidavits that the loan was “secured by an assignment of contract proceeds.”'

¶ 4. Stamped on the agreement, and signed by Schwegman Constructors’ representative was a statement which read:

We hereby sell and assign, with full recourse the above invoice and the proceeds due from the transaction evidenced thereby to Merchant and Marine Bank, Pascagoula, Mississippi, and you are hereby directed to pay over and remit such proceeds directly to said bank for our account as aforesaid.

In the language contained in the Notice of Assignment of Accounts Receivable, it also stated, “You are hereby notified that all amounts that you owe to Assignor as a result of any assigned accounts receivable shall be paid directly to the Assignee.” Merchants did not file a Uniform Commercial Code financing statement with regard to this loan.

¶ 5. As a result of Schwegman Constructors’ inability to fulfill its obligations on $292,000-worth of construction contracts bonded by St. Paul, Schwegman Constructors and St. Paul entered into a settlement agreement in October of 2001. In exchange for St. Paul’s agreement to waive its right to seek personal indemnification from Schwegman Constructors President Joseph P. Schwegman pursuant to the terms of the bond, Schwegman Constructors granted St. Paul a security interest in all assets of the business, including all rights to payment under any contract. Soon afterward, both Schwegman Constructors and St. Paul executed a valid UCC financing statement and recorded it with both the Secretary of State and the Chancery Clerk of Jackson County.

¶ 6. Subsequently, both Merchants and St. Paul applied to the School District for payments due to Schwegman Constructors, but the School District was uncertain which of the two had priority over the funds. Therefore, to avoid potential liability for giving funds to one party which rightfully belonged to the other, the School District deposited the funds with the Harrison County Circuit Court and commenced this interpleader action.

¶ 7. Merchants filed a motion for summary judgment with respect to the amount of interpled funds covered by payment number eight, arguing that as an assignee bank, it had priority over the surety as to progress payments. St. Paul filed a cross-motion for summary judgment with respect to the entire amount interpled by the School District, arguing that under the UCC, Merchants’ failure to file a financing statement resulted in an unperfected security interest for Merchants, giving St. Paul priority over the payments.

¶ 8. The circuit court granted Merchants’ motion for summary judgment, reasoning that because St. Paul was aware of Merchants’ loan to Schwegman Constructors prior to entering into the settlement agreement, “the purpose of filing a an [sic] Article 9 financing statement, to provide notice to potential creditors of preexisting liens, was fulfilled.” The circuit court further reasoned that because Schwegman Constructors first assigned to Merchants “present and future right, title, and interest” to the collateral, St. Paul’s filing of a financing statement could not “serve to create a greater right in [St. Paul] than [Schwegman Constructors] had to give.”

DISCUSSION

¶ 9. We review de novo both questions of law and summary judgments. Doe v. Stegall, 757 So.2d 201, 204 (Miss.2000).

¶ 10. The central and controlling issue in this case is whether Schwegman Constructors’ transaction with Merchants is one which is covered by the UCC. If so, Merchants was required to comply with the UCC’s attachment and perfection requirements for security interests in order to take priority over St. Paul for the interest in conflict.

Whether Merchants’ Security Interest is Covered by the UCC

¶ 11. Mississippi’s version of the UCC applies to “security interests by contract including ... assignment.” Miss. Code Ann. § 75-9-102(2) (1972). Furthermore, in Mississippi Bank v. Nickles & Wells Construction Co., 421 So.2d 1056, 1060 (Miss.1982), we held that Mississippi’s version of UCC Article 9 applies to assignments of construction contracts.

¶ 12. Under the comment to the UCC, the test for when a transaction is covered by Article 9 is whether “the transaction intended to have effect as security.” Miss. Code Ann. § 75-9-102 cmt.l (1972). Furthermore, “[vjirtually any right to proper-, ty or services is subject to creating a security interest to induce an extension of credit.” Nickles, 421 So.2d at 1060.

¶ 13. Merchants contractually took a security interest by way of assignment in Schwegman Constructors’ right to payment for construction work. This transaction is covered by the UCC, and Merchants’ argument to the contrary has no merit.

Whether Merchants or St. Paul First Complied with the UCC Requirements

¶ 14. A security interest attaches when: (1) there is an agreement; (2) value is given; and (3) the debtor has rights in the collateral. Miss.Code Ann. §§ 75-9-203(l)(a)(b)(c) (1972).

¶ 15. The security interests of both Merchants and St. Paul properly attached in compliance with the UCC. In Merchants’ case: (1) it executed an agreement with Schwegman Constructors to take an assignment of Schwegman Constructors’ right to payment number eight; (2) it gave value of $105,000.00; and (3) pursuant to Schwegman Constructors’ work on its project for the School District, Schwegman Constructors had rights in payment number eight. In St. Paul’s case, (1) it executed an agreement with Schweg-man Constructors to take an assignment of Schwegman Constructors’ right to payment number eight; (2) it gave value by waiving its right to seek personal indemnification from Joe Schwegman after Schwegman Constructors’ default on its contractual obligations which St. Paul had bonded; and (3) pursuant to Schwegman Constructors’ work on' its project for the School District, Schwegman Constructors had rights in payment number eight.

¶ 16. If conflicting security interests have attached, priority over the contested collateral goes to the party who filed or perfected first. Miss.Code Ann. § 75-9-312(5)(a) (1972). The Legislature required the filing of a financing statement as a means of implementing a simple procedure which would provide notice. Miss.Code Ann. § 75-9-402 cmt.2 (1972).

¶ 17. ’ On direct appeal, Merchants styles the transaction between it and Schwegman Constructors as an “absoluteassignment” and not a security interest; arguing that the UCC therefore does not apply. The circuit court agreed with, this argument, finding that St. Paul’s filing statement was wholly ineffective at giving it priority since Schwegman Constructors had already assigned a portion of payment number eight to Merchants. However, the language of Merchants’ agreement with Schwegman Constructors is clear: though the agreement did indeed involve an assignment, the assignment of payment number eight merely operated as a means of securing the loan of $105,035.00. This is attested to in the language and terms,of the agreement, as well as Merchants’ own brief and affidavits.

¶ 18. The comment to the UCC asks “whether the transaction was intended to have effect as security.” (emphasis added). The intended effect of Merchants’ transaction was to secure a loan by way of assignment. The “assignment” language in the contract and Merchants’ current characterization of the transaction do not change the , fact that the inherent nature of the loan was that of a secured transaction.

¶ 19. Both Merchants and St. Paul entered into transactions covered by the UCC. Both properly attached their interest in the collateral. However, because St. Paul acted in compliance with Mississippi law by attaching and immediately perfecting its interest by filing, it earned the right to priority over Merchants’ interest in the collateral.

Whether St. Paul’s Alleged Knowledge Affects the Outcome under the UCC

¶ 20. The circuit court held that “the purpose of filing a an [sic] Article 9 financing statement [is] to provide notice to potential creditors of preexisting liens” and that this purpose was fulfilled by St. Paul’s alleged knowledge of the transaction between Merchants and Schwegman.

¶21. Knowledge of either party in an action over a conflicting security interest is relevant to the perfection inquiry when a creditor has filed a financing statement but has not properly perfected its interest. Miss.Code Ann. § 75-9-401(2) (1972). In this case, the creditor may still maintain priority if it can demonstrate that the subsequently filing creditor had knowledge of the contents of a filing statement made in good faith. Id.

¶ 22. Knowledge is statutorily irrelevant to our inquiry unless Merchants at least filed a financing statement, which, as noted above, it did not. The UCC serves to provide uniformity and certainty in business transactions. See generally Miss. Code Ann. § 75-1-102 (1972) (stating general purposes of the UCC). Adding an extra-statutory lack of knowledge requirement to the Legislature’s filing and perfection mandate would create a climate of incertitude for companies like Merchants and St. Paul, for which the Legislature provided one simple procedure so that such companies would know when they have effectively “sealed the deal” in a secured transaction.

Whether the UCC Exempts Merchants’ Transaction from the Filing Requirements

¶ 28. Even if a party is covered by the filing requirement provisions of the UCC, it may be exempt from filing “where an assignment (done or in conjunction with others) to the same assignee does not transfer a significant part of the outstanding accounts of the assignor.” Miss.Code Ann. § 75-9-302(l)(e). The comment to the UCC explains the exception:

The purpose of the subsection (l)(e) exemption is to save from ex post facto invalidation casual or isolated assignments: some accounts receivable statutes were so broadly drafted that all assignments, whatever their character or purpose, fell within their filing provisions. Under such statutes many assignments which no one would think of filing might have been subject to invalidation. The paragraph (l)(e) exemption goes to that type of assignment. Any person who regularly takes assignments of any debtor’s accounts should file.

Id. at cmt.5 (emphasis added).

¶24. In this issue of first impression for our Court, Merchants argues that even if we find that the UCC applies, it is exempt under Section 75-9-302(l)(e). We disagree. Schwegman Constructors’ outstanding accounts receivable for the month ending June 30, 2001, totaled $1,274,117.95. Merchant’s loans to Schwegman Constructors totaled $335,019.00, representing more than one quarter of Schwegman Constructors’ total outstanding accounts receivable. This is by no means a “casual or isolated assignment” transferring an insignificant part of Schwegman Constructors’ outstanding accounts receivable. Therefore, Merchants is not exempt from the filing requirement. Indeed, the comment counsels that a person in Merchants’ position “who regularly takes assignments of any debtor’s accounts should file.”

CONCLUSION

¶ 25. We reverse the judgment of the circuit court and remand this case to the circuit court with instructions to enter an appropriate judgment granting St. Paul’s motion for summary judgment, denying Merchants’ motion for summary judgment, and directing the Circuit Clerk of Harrison County to disburse to St. Paul the full amount of the interpled funds, $227,738.16, plus accrued interest.

¶ 26. REVERSED AND REMANDED.

SMITH, C.J., COBB, P.J., AND DICKINSON, J., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, CARLSON, GRAVES AND RANDOLPH, JJ., NOT PARTICIPATING.

      . Mississippi adopted the revised version of Article 9 of the UCC, effective January 1, 2002. However, in light of the fact that this action was filed in November of 2001, the version of the UCC in place at the time of the action is applicable. Miss.Code. Ann. § 75-9-709 (2002).

      . Nickles overruled Frazier v. National Electric Supply Company, 362 So.2d 609 (Miss.1978), "insofar as it held that § 75-9-104(f) excluded construction contracts from chapter 9 of the code.” Id. C.f. Great S. Nat’l Bank v. McCullough Envtl. Servs., Inc., 595 So.2d 1282 (Miss.1992) (relying solely upon UCC to establish adequate notice of assignment in case of subcontractor which assigned its right to payment to bank under its contract with general contractor in order to secure $12,000.00 loan).

      . The circuit court cited three cases to support this proposition. See In re Turnage, 493 F.2d 505 (5th Cir.1974); In re King-Porter Co., 446 F.2d 722 (5th Cir.1971); West Implement Co., v. First S. Prod. Credit Ass’n, 815 So.2d 1164 (Miss.2002). Although the cases do indeed highlight the purpose of the filing requirement, none of the cases discussed the effect of one party’s knowledge in such a transaction. Furthermore, these cases involved fact scenarios in which the court reviewed the adequacy of filing statements. The case at hand concerns a party who never filed at all. Thus, the circuit court erred in relying on these cases.


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    Diane B. PERKINS, Individually as Mother and Next Friend of Danielle Dawn Perkins and Stacey Renee Perkins, Minors, Appellant v. Dr. Alton DAUTERIVE, Appellee.
    No. 2002-CA-00951-COA.
    Court of Appeals of Mississippi.
    Sept. 21, 2004.

      Donald C. Doman, Wynn E. Clark, Biloxi, attorneys for appellant.
    Roger T. Clark, William E. Whitfield, Gulfport, attorneys for appellee.
    Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   CHANDLER, J.,

for the Court.

¶ 1. Diane B. Perkins, as mother and next friend of Danielle Dawn Perkins and Stacy Renee Perkins, sued Dr. Alton Dau-terive, alleging that Dr. Dauterive had committed medical malpractice that resulted in the wrongful death of her husband, Daniel Walter Perkins (Walter). The jury returned a verdict for Dr. Dauterive. Perkins appeals, arguing that the trial court erroneously denied her motion for a new trial because (1) the verdict was against the overwhelming weight of the evidence, and (2) the jury received extraneous prejudicial information.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. The following facts were adduced at the trial, which occurred in May 2001 in the Circuit Court of Hancock County. On the morning of November 25, 1994, Walter went to a fishing camp in Lakeshore, Mississippi. At the camp, an assailant suddenly approached Walter and stabbed him once with a fishing knife in the area of the top right shoulder. The blade of the knife was just under five inches long. Paramedics arrived and treated Walter. Walter was bleeding from the stab wound and he was hypotensive, meaning that his blood pressure was abnormally low. Walter was transported to the emergency room at Hancock Medical Center and arrived at approximately 7:45 a.m.

¶4. Dr. Sean Appleyard, the on-duty emergency room physician, examined Walter and assessed his condition. Dr. Apple-yard administered an intravenous crystal-loid solution and other care, and Walter’s condition stabilized. Walter was communicative, and stated that he had been stabbed with “a twelve-inch knife” and that the knife had “bounced off [his] collarbone.” Walter reported that his right arm felt numb. His lungs were clear. Dr. Appleyard could not feel a pulse in Walter’s right arm, but he detected a slight pulse using doppler. Dr. Appleyard concluded that Walter had most likely sustained an injury to the right subclavian artery. Dr. Appleyard ordered x-rays of Walter’s chest. Upon reviewing the x-rays, Dr. Appleyard did not see any air or blood in Walter’s chest cavity. On review of the same x-rays a few; days later, a radiologist noted the presence of 'fluid in Walter’s chest cavity outside of the lungs.

¶ 5. At around 8:15 a.m., Dr. Appleyard called Dr. Dauterive, the on-call general and vascular surgeon, who was in the midst of performing elective surgery at Gulfport Memorial Hospital. Dr. Apple-yard informed Dr. Dauterive that Walter had a distal clavicular stab wound with a pulseless right arm and that he suspected a right subclavian artery injury. Dr. Dau-terive told Dr. Appleyard to order blood typing and to keep Walter stable, and advised that he would arrive at Hancock Medical as soon as he could. Dr. Apple-yard did not inquire what exact time Dr. Dauterive would be arriving, but, because Dr. Dauterive stated ■ his intent to come take responsibility for Walter, Dr. Apple-yard assumed that Dr. Dauterive would arrive within a reasonable time.

¶ 6. Walter’s family arrived at 8:45 a.m. and expressed concern about when Dr. Dauterive would come. Dr. Appleyard called Dr. Dauterive again at 9:15 a.m. and discussed the possibility of transferring Walter to another facility. Dr. Dauterive thought it likely that transfer would be moot because, by the time Walter made it to a different hospital, Dr. Dauterive already would have arrived at Hancock Medical. . As transfer would take between one and one half hour, the doctors decided that it would be best to keep Walter at Hancock Medical and await Dr. Dauterive. Dr. Dauterive said he would be there as soon as possible. Dr. Appleyard advised the family that it would be risky to transfer Walter due to the fragility of his condition and the time it would take to transfer him. The family agreed to leave Walter at Hancock Medical.

¶ 7. Dr. Dauterive arrived between 10:30 and 11:00 a.m. He examined Walter and determined based upon Walter’s clinical presentation that Walter’s arterial injury was most likely underneath the stab wound where the knife had entered the skin, which meant that Walter had an injury to the proximal axillary artery or to the distal right subclavian artery, necessitating surgical repair. “Proximal” indicates a location on the body closer to the heart. “Distal” indicates a location on the body farther away from the heart. On the right side of the body, the innominate or bra-chiocephalic artery comes from the aorta, and branches into the carotid and subclavi-an arteries. The carotid artery travels up the neck, while the subclavian artery winds over the first rib, underneath the clavicle, and down the shoulder and becomes the axillary artery.

f 8. At 12:05 p.m., Dr. Dauterive began surgery. The goal of the surgery was to locate the injured portion of the artery and to gain control of the artery on either end of the injury, first proximally and then distally, and then to repair the injured portion. Dr. Dauterive made an infraclavi-cular incision approximately ten centimeters proximal to the surface wound. He exposed the right subclavian artery and began exploring the artery, moving distally. Walter’s blood pressure became elevated at 12:85 p.m. At 12:50 p.m., Walter became hypotensive. Dr. Dauterive performed an emergency median sternotomy to open the chest and called for assistance from his partner, Dr. Leonovicz. When Dr. Dauterive opened Walter’s chest, he discovered that Walter had bled massively (exsanguinated) into his chest cavity, which had caused the drop in his blood pressure. Dr. Dauterive discovered that the arterial injury was located more proximally than he initially suspected; in fact, the proximal end of the subclavian artery was nearly transected directly underneath the head of the clavicle. The reason Walter had presented to the hospital in such good condition was that a blood clot had temporarily sealed the injured artery. During the surgery, the clot had become dislodged, resulting in sudden exsanguination.

¶ 9. Dr. Dauterive clamped the artery to control the bleeding. The surgical team transfused Walter with packed red blood cells and installed an arterial line for more exact monitoring of blood pressure. An emergency line for rapidly transfusing blood products was placed in Walter’s saphenous vein. Dr. Dauterive repaired the artery using a saphenous vein graft obtained from Walter’s groin. Walter began oozing blood from all exposed surfaces. At 1:45 p.m., Walter received his first transfusion of fresh frozen plasma, and at 3:00 p.m. he was transfused with platelets obtained from another hospital. However, Walter developed coagulopathy as a result of his exsanguination and blood replacement. Coagulopathy is a failure of the clotting factors in the blood, resulting in excessive bleeding, and is difficult to reverse. Walter’s coagulopathy could not be reversed during the surgery. Dr. Dau-terive released Walter to intensive care for further transfusion of blood products in an effort to stop the coagulopathy. The coag-ulopathy continued, and family members decided to take Walter off life support. He was pronounced dead at 10:18 p.m.

¶ 10. Diane Perkins and her children commenced a wrongful death action against Drs. Dauterive and Appleyard, Hancock Medical Center, and Van Meter and Associates, an entity with which Dr. Appleyard was under contract. Hancock Medical Center was dismissed from the case prior to trial, and Perkins settled with Dr. Appleyard and Van Meter and Associates during the trial, leaving Dr. Dauterive as the sole defendant. After the trial, the jury voted 9-3 in favor of Dr. Dauterive.

LAW AND ANALYSIS

I. DID THE TRIAL COURT ERRONEOUSLY DENY PERKINS’ MOTION FOR A NEW TRIAL BECAUSE THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 11. After the jury verdict for Dr. Dauterive, Perkins filed a motion for a new trial, arguing, inter alia, that the verdict was against the overwhelming weight of the evidence. The trial court denied the motion. On appeal, Perkins contends that the evidence of several breaches of the standard of care by Dr. Dauterive was so overwhelming that the verdict was contrary to the weight of the evidence. We disagree and affirm the trial court’s denial of the motion for a new trial.

¶ 12. The grant or denial of a motion for a new trial is a matter entrusted to the lower court’s sound discretion, and this Court will only reverse the denial of a new trial when we are convinced that the lower court abused its discretion. Green v. Grant, 641 So.2d 1203, 1207 (Miss.1994). “Only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Herrington v. Spell, 692 So.2d 93, 103 (Miss.1997). In determining whether the verdict was against the overwhelming weight of the evidence, we review all of the evidence as a whole, in the light most favorable to the verdict, and generally accept as true all of the credible evidence in favor of the non-moving party. Brandon HMA, Inc. v. Bradshaw, 809 So .2d 611, 616 (¶ 13) (Miss.2001); Green, 641 So.2d at 1203. We will reverse only if “no reasonable, hypothetical juror could have found as the jury found.” Brandon HMA Inc., 809 So.2d at 616 (¶ 13).

¶13. As the plaintiff, Perkins had the burden to prove the elements of medical malpractice by a preponderance of the evidence. Phillips v. Hull, 516 So.2d 488, 491 (Miss.1987). To present a prima facie case of medical malpractice, a plaintiff “(1) after establishing the doctor-patient relationship and its attendant duty, is generally required to present expert testimony (2) identifying and articulating the requisite standard of care and (3) establishing that the defendant physician failed to conform to the standard of care. In addition, (4) the plaintiff must prove the physician’s noncompliance with the standard of care caused the plaintiffs injury, as well as proving (5) the extent of the plaintiffs damages.” McCaffrey v. Puckett, 784 So.2d 197, 206 (¶33) (Miss.2001). Once a prima facie case is made, the defendant physician is not required to put on expert testimony rebutting the prima facie case in order to survive a directed verdict. Id. Rather, a prima facie case of medical malpractice creates a fact question for the jury to resolve. See id. at 206-07 (¶ 35). Perkins argues that the evidence was such that the jury reasonably could have concluded only that Walter died because Dr. Dauterive breached the standard of care, in other words, that Dr. Dauterive failed to provide Walter with that degree of skill and diligence which would have been provided by a reasonably prudent, minimally competent general and vascular surgeon in the same or similar circumstances. See McCarty v. Mladineo, 636 So.2d 377, 381 (Miss.1994).

¶ 14. All the surgical experts agreed that the proper surgical goal in this case was to obtain proximal and distal control of Walter’s arterial injury and then to repair the injury. The main dispute was over the correct preoperative approach, specifically, whether the standard of care required Dr. Dauterive to order an arterio-gram. An arteriogram is a diagnostic procedure in which contrast dye is injected into an artery to reveal blood flow in the artery. Perkins’s expert, Dr. Stephen Smith, testified that an arteriogram would have shown the portion of the artery with good blood flow and enabled Dr. Dauterive to quickly establish proximal control during the surgery. Dr. Smith stated that, had Dr. Dauterive ordered an arteriogram, he would have known the exact location of Walter’s arterial injury, would have made a different first incision, and would have accessed and controlled the transected artery before the blood clot became dislodged.

¶ 15. The experts generally agreed that the correct preoperative approach was dictated by the location of the entrance wound. If the entrance wound was located within one of the three surgical zones of the neck, then the standard of care required Dr. Dauterive to order a preoperative arteriogram in order to determine the correct first incision. But if the entrance wound was not in a surgical zone, then an arteriogram could be ordered at the surgeon’s discretion. The surgical experts and Dr. Dauterive agreed the injury that was ultimately discovered to Walter’s proximal subclavian artery was in surgical zone 1, but there was also agreement that the zone classifications are used for entrance wounds, not what is consequently discovered during surgery. There was conflicting testimony about the boundaries of the surgical zones of the neck and about where the entrance wound was located on Walter’s body. Dr. Smith opined that an arteriogram was required because Walter’s entrance wound was in the lowermost surgical zone of the neck, known as zone 1.

¶ 16. Dr, Dauterive testified that his assessment and treatment of Walter had been informed by his clinical judgment and experience. Dr. Dauterive stated that, though an arteriogram would have been necessary had the entrance wound been in zone 1, Walter’s entrance wound was over the distal one third of the clavicle and was outside of zone 1. Dr. Dauterive said that Walter’s pulseless right arm was a hard sign of vascular injury and, in his judgment, he needed to go straight to surgery without an arteriogram. He said that an arteriogram would have taken between one and two hours. Dr. Dauterive stated that it was his clinical judgment that conducting an arteriogram would have been too dangerous given Walter’s arterial injury.

¶ 17. Dr. Smith testified that Walter’s entrance wound was in zone 1 because zone 1 extends vertically from the cricoid cartilage down to the clavicles and horizontally to the distal ends of the clavicles. There was other medical evidence that zone 1 is not commonly thought to extend all the way to the clavicles and Dr. Smith admitted that most medical texts do not definitively depict or discuss any lateral boundaries of the zones of the neck. Dr. Smith stated that accepted surgical protocol required a hemodynamically stable patient like Walter with an injury in zone 1 and hard signs of vascular injury to receive an arteriogram prior to surgery. He stated that there was only a one to two percent chance of a complication from an arteriogram in Walter’s case, and only a small risk that Walter’s blood pressure would rise during the procedure and cause the blood clot to dislodge. Dr. Smith stated that Dr. Dauterive’s treatment of Walter breached the standard of care and caused or contributed to Walter’s death.

¶ 18. Dr. Dauterive’s expert, Dr. Kennan Buechter, stated that Dr. Dauterive did not breach the standard of care in. treating Walter and that his treatment did not cause or contribute to Walter’s death. He stated that Walter’s clinical picture revealed no sign of the proximal subclavian artery injury that was ultimately discovered, and that it was reasonable for Dr. Dauterive to conclude that Walter had suffered a proximal axillary artery or distal subclavian artery injury. He stated that, though an x-ray was later determined to. have depicted fluid outside the lung field, that finding did not rule out the injury suspected by Dr. Dauterive. Dr. Buechter stated that Dr. Dauterive’s first incision was a reasonable approach. He said that the entrance wound was on the distal shoulder, outside of zone 1, and, therefore, no arteriogram was required. Dr. Buechter stated that, had Walter been his own patient, he would not have ordered an arteriogram.

¶ 19. Perkins offered the autopsy report as evidence of the location of the entrance wound. The report contained a drawing of a body with marks indicating the injuries and incisions found on Walter’s body. The drawing tended to show that the entrance wound of the knife was located on or very near Walter’s neck, supporting the argument that the entrance wound was in zone 1. During his testimony for Dr. Dauterive, Dr. Buechter pointed out that the position of the entrance wound on the drawing conflicted with the portion of the autopsy report dictated by the pathologist, which described the injury as being on the “right shouldertop,” and supported Dr. Buechter’s opinion that the entrance wound was not in zone 1.

¶ 20. Perkins attacked several other aspects of Dr. Dauterive’s performance, and Dr. Dauterive offered évidence challenging these contentions. Dr. Smith posited that Walter’s outcome would have been different had he been given plasma and platelets, which are clotting factors, earlier in the surgery. Dr. Dauterive testified that he did not need to administer clotting factors any earlier because clotting would have interfered with his repair of the transected artery.

¶21. Dr. Smith testified that the hours Walter spent in the' emergency room before Dr. Dauterive arrived caused or contributed to his death because he did not receive definitive care quickly enough. Dr. Smith opined that Walter should have been transferred. There was evidence that Dr. Dauterive did not breach the standard of care regarding his arrival time and fact that Walter was not transferred. Dr. Appleyard testified that Hancock Medical was a level four trauma center, which meant that it did not have trauma surgeons immediately available. Perkins’s emergency medicine expert, Dr. Guzzardi, testified that any delay in Walter’s care was attributable to Dr; Appleyard, who, as the emergency room physician, had a duty to coordinate timely care for Walter.

¶ 22. Clearly, Perkins and Dr. Dauterive put on conflicting credible evidence regarding the standards of care applicable to Walter’s treatment and whether or not Dr. Dauterive’s performance comported with the standards of care. It is the province of the jury to evaluate the credibility of the witnesses and to resolve evi-dentiary conflicts by accepting or rejecting evidence. Brandon HMA, 809 So.2d at 617 (¶20). This Court declines Perkins’s invitation to examine the knife with which Walter was stabbed and attempt to determine whether Dr. Dauterive’s defense theory is physically plausible; that issue requires complex analysis of the medical evidence and is a classic example of a question rightfully entrusted to the jury. We find that the evidence presented in this case was such that a reasonable juror could conclude that Perkins failed to prove Dr. Dauterive committed malpractice in his treatment of Walter. The verdict was not against the overwhelming weight of the evidence, and the trial court did not abuse its discretion in denying Perkins a new trial.

II. DID THE TRIAL COURT ERRONEOUSLY DENY PERKINS’ MOTION FOR A NEW TRIAL BECAUSE THE JURY RECEIVED EXTRANEOUS, PREJUDICIAL INFORMATION?

¶ 23. Perkins also moved for a new trial on the ground of jury misconduct. Perkins alleged that, in a post-verdict interview, a juror in the minority alleged that a majority juror made a prejudicial statement to the jurors during deliberations. Perkins submitted an affidavit of the minority juror, Joe Bourgeois, stating:

A lady who said she was a nurse also served on the jury and sat on the back row in the jury box. During the last approximately twenty minutes of the jury deliberations, the nurse said that she was familiar with what doctors go through and she stated as a fact to the other jury members that if we returned a verdict for the Plaintiffs that the doctor would lose his medical license or have his license suspended. She emphasized for that reason the jury should vote for the Defendant. The 9-3 vote for the Defendant was taken shortly after the nurse made this statement to the jury.

¶24. Perkins contended that certain questions posited by the jury to the trial court during deliberations supported the conclusion that the nurse’s statement was the impetus for the defense verdict. The case was submitted to the jury at 12:50 p.m. At 2:00 p.m., the jury sent a note asking whether they could consider Dr. Appleyard’s potential responsibility; at 2:45 p.m., the jury asked how much insurance money Perkins received, the amount of the Perkins’s attorneys’ fees, and whether Perkins could recover damages if they ruled for Dr. Dauterive. The court responded to these notes by instructing the jury that it should consider Dr. Apple-yard’s fault as set out in a jury instruction, that the court could not answer the questions about insurance money and attorneys’ fees, and that the jury had all the evidence and instructions of law. At approximately 3:40, the jury returned the verdict for Dr. Dauterive. Perkins argued that the jury’s questions to the court, along with the affidavit, indicated that the jurors were indecisive about ruling against Perkins until the nurse’s statement swayed them in favor of Dr. Dauterive. The trial court denied Perkins’s motion, and Perkins argues that the ruling was error.

¶ 25. Mississippi Rule of Evidence 606(b) states:

Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

(emphasis added). The rule against a juror revealing influences on his-own verdict precludes a juror from testifying as to extraneous information or outside influence which he, himself, introduced to the jury. Gladney v. Clarksdale Beverage Co., 625 So.2d 407, 413 (Miss.1993). A juror may only testify as to extraneous information or outside influence introduced by other jurors or other sources, and may not testify as to how that information or influence affected the verdict. Id. at 414, 419.

¶ 26. Gladney prescribes the process for jury inquiry by the trial court. Gladney, 625 So.2d at 418-19. The inquiry begins when the trial court and opposing counsel are made aware of potential juror misconduct by the manifestation of evidence of juror misconduct. Id. at 418. Regarding the scope of counsel’s right to attack an unfavorable verdict by investigating juror misconduct, “a balance must be struck between the right to inquire into the jury verdict and the right of each juror to be free from harassment and secure in their verdict.” Id. Jury inquiry is not permitted as a “mere fishing expedition” for a way to challenge an undesirable verdict. Id.

¶ 27. When evidence of misconduct is manifested, the trial court must consider whether an investigation is warranted. Id. An investigation is warranted if there is “sufficient evidence to conclude that good cause exists to believe that there was in fact an improper outside influence or extraneous prejudicial information .... Although a minimal standard of a good cause showing of specific instances of misconduct is acceptable, the preferable showing should clearly substantiate that a specific, non-speculative impropriety has occurred.” Id. at 419. The showing must be adequate to overcome the presumption in Mississippi of jury impartiality. Id.

¶ 28. If an investigation is warranted, the trial court should hold an investigative post-trial hearing. Id. In accordance with precedent and Rule 606(b), the trial,court may not permit any inquiry into the internal deliberations of the jurors or the subjective effects'of the extraneous information. Id. “Once it is determined that the communication was made and what the contents were, the court is then to decide whether it is reasonably possible this communication altered the verdict.” Id. In assessing the significance of the extraneous information, the court may order a new trial if the extra-record facts are material, that is, they affect an issue of importance in the case, and if- the extra-record facts are qualitatively different from the evidence properly presented to the jury in the case. Id. at 414 (quoting Salter v. Watkins, 513 So.2d 569, 571 (Miss.1987)). An example of an application of this framework resulting in a new trial is the case of James v. State, 777 So.2d 682, 700 (¶ 60) (Miss.Ct.App.2000), in which a juror revealed to others the defendant’s alleged prior commission of the same crime.

¶ 29.' In the instant case, the court considered the impact of Juror Bourgeois’s affidavit. The court found that the information in the affidavit did not. go to the material issue of the case, which was whether Dr. Dauterive breached the standard of care in his treatment of Walter.” The court held that Bourgeois’s affidavit was insufficient to show that the jurors were exposed to extraneous information that reasonably altered the verdict and that, pursuant to the procedure articulated in Gladney, it was not necessary for the, court to further inquire into whether the alleged extraneous information was considered by the jurors during deliberations. We review the trial court’s denial of an investigative hearing in this context for abuse of discretion. Brake v. Speed, 605 So.2d 28, 87 (Miss.1992).

¶ 30. Both parties have thoroughly-briefed this issue. Perkins argues that the facts demonstrated a reasonable possibility that the information alleged in Bourgeois’s affidavit altered the verdict. Perkins argues that the majority juror’s statement that a verdict for Perkins would cause Dr. Dauterive to be suspended or to lose his medical license was significantly prejudicial because of that juror’s status as a nurse. Perkins contends that the jury’s questions to the trial court support the conclusion that they were concerned with extraneous matters rather than the evidence. Perkins points out that prejudice may be inferred from the timing of the verdict in that the jury returned its verdict for Dr. Dauterive approximately 20 minutes after the nurse’s statement. Dr. Dau-terive argues, inter alia, that the nurse’s statement was not an outside influence upon the jury and that Juror Bourgeois was a relative of Diane Perkins and executed the affidavit in an effort to help Perkins challenge the defense verdict.

¶ 31. In Brake, the court addressed the concept of extraneous information and pronounced, “it does not matter that information outside the record is provided by a fellow juror as opposed to some other person .... [i]f the [extraneous] information is outside the record of proceedings in open court, it is an outside influence under the rule.” Brake, 605 So.2d at 38. More recently, our supreme court rejected a losing party’s claim that the jury relied upon impermissible extraneous information in reaching its verdict. APAC-Miss. Inc. v. Goodman, 803 So.2d 1177, 1186 (¶39) (Miss.2002). In APAC-Mississippi, jurors stated that the jury had used a calculation method known as a “quotient verdict” in determining a damage award. Id. at 1185-86 (¶ 36). Observing that quotient verdicts are not permitted in Mississippi, the court nonetheless held that the jurors’ use of the quotient verdict method was not reliance upon external influences that would warrant an new trial. Id. at 1186 (¶¶ 38-39).

¶ 32. The case of Payton v. State, 2001-KA-01658-SCT (¶¶ 123-135), — So.2d -, 2003 WL 22510533 (Miss. Nov. 6, 2003), contains facts similar to the case at bar. At voir dire, the trial court had ascertained that, because the county was rural, the jurors knew some of the persons involved with the case but those jurors promised to be impartial. Id. at (¶ 130). Payton moved for a new trial and sought to introduce the affidavit of a juror stating that several jurors personally knew one witness and told the other jurors that the witness would not lie respecting his testimony. Id. at (¶ 125). The court held the affidavit faded to meet the threshold showing of external influences because all of the proposed evidence therein related to things which some jurors told other jurors during the deliberative process, and there was no evidence that someone outside the twelve jurors did something to influence their deliberations. Id. at (¶¶ 134-35).

¶ 33. As in Payton, the statement regarding the verdict’s potential impact on Dr. Dauterive’s licensing was based on the personal knowledge of one of the twelve jurors and did not come from someone outside the jury room. APAC-Mississip-pi and Payton indicate that jurors are permitted to bring some degree of personal knowledge and experience into the deliberation process without jeopardizing their verdict. Even were we to find that the nurse’s alleged statement pushed the permissible boundary, considering all the facts of this case, the trial court acted well within its discretion in determining that there was no reasonable possibility that the nurse’s information swayed the other eight majority jurors to ignore the copious evidence legitimately presented in this case and to vote for Dr. Dauterive. We observe that “public policy requires a finality to litigation.” Martin v. State, 732 So.2d 847, 852 (¶ 22) (Miss.1998). This issue is without merit.

¶ 34. THE JUDGMENT OF THE CIRCUIT COURT OF HANCOCK COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS, GRIFFIS AND BARNES, JJ„ CONCUR.

      . Perkins's motion for a new trial alternatively requested a JNOV, and challenged both the weight and the sufficiency of the evidence. As Perkins’ brief only addresses the weight of the evidence and not the sufficiency of the evidence, we limit our appellate review to the weight of the evidence.

      . We note that the record contained insufficient evidence from which this Court could conclude that Perkins and Juror Bourgeois were related.


author: GRIFFIS, J.,

text:
    William P. LAWSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-CP-01561-COA.
    Court of Appeals of Mississippi.
    Sept. 21, 2004.

      William P. Lawson, appellant, pro se.
    Office of the Attorney, General by Charles W. Maris, attorney for appellee.
    Before BRIDGES, P.J., CHANDLER and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. On August 21, 2002, William P. Lawson pled guilty to felony D.U.I., third offense. Lawson was sentenced to serve a term of fifteen years in the custody of the Mississippi Department of Corrections, followed by five„years of post-release supervision.

¶ 2. On April 8, 2003, Lawson filed a motion for post-conviction relief. The Circuit Court of Lowndes County denied the motion. On appeal, Lawson asserts that there was no factual basis before the court to accept the plea of guilty and that he was denied effective assistance of counsel. We find no error and affirm.

¶ 3. In reviewing a trial court’s decision to deny a motion for post-conviction relief the standard of review is clear. The trial court’s denial will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶3) (Miss.Ct. App.2002).

I. Whether the lower court erred in denying Lawson’s motion for post-conviction relief on the ground that no factual basis was presented.

¶ 4. Lawson contends that the record does not reflect a sufficient factual basis for his guilty plea. However, because Lawson pled guilty, he waived the requirement that he be proven guilty beyond a reasonable doubt by competent evidence. Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989). In Hover v. State, 773 So.2d 421, 424 (¶ 12) (Miss.Ct.App.2000), we held that a guilty plea may be accepted if the plea is intelligently and voluntarily entered and there is an independent evi-dentiary suggestion of guilt. “A plea may be accepted if there is enough evidence to satisfy the court before which the plea is offered that the State, if put to its proof, could demonstrate guilt.” Myers v. State, 770 So.2d 542, 544(¶ 9) (Miss.Ct.App.2000).

¶ 5. At his plea hearing, Lawson acknowledged that he had entered a sworn petition that requested that the court accept his guilty plea. Lawson was questioned, under oath, about the voluntariness and truthfulness of the assertions in his petition. The court asked the prosecutor what facts he would present to the court in the event of a trial, and the prosecutor responded:

Your honor, the State would show that on the 9th day of March of 2002 here in Lowndes County, Mr. Lawson was driving a motor vehicle, and while driving that motor vehicle, he was under the influence of intoxicating alcohol. He had a blood alcohol content of .215. As he was driving the car under the influence of alcohol, he ran over three people with his car. They were pedestrians— Bryant Hudgins, Lateshia Williams, and Tyrone Harris. A couple of them had fractured legs. ' The other had a bruised hip. They all had to have medical treatment.

The court then asked Lawson if he agreed with the prosecutor’s rendition of the facts of the case. ' Lawson stated that he did. Upon further questioning, Lawson testified that he had been drinking beer when he “ran over these kids” with “an '84 Buiek.”

¶ 6. We find that there was sufficient evidence before the trial court to conclude that the State could prove the charge. The factual basis for Lawson’s guilty plea existed. Therefore, we find no merit to this issue.

II. Whether Lawson was denied, the effective assistance of counsel.

¶ 7. Lawson next contends that he was denied the effective assistance of counsel because his guilty plea was based on the threat of his attorney that if Lawson did not accept the plea bargain, the State would charge him as an habitual offender. Lawson also asserts that his attorney lied to him in this regard because he could not have been charged as an habitual offender.

¶ 8. Claims for ineffective assistance of counsel are judged by the standard in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The two-part test is whether counsel’s performance was deficient and, if so, whether the deficiency prejudiced the defendant to the point that he was denied a fair trial. Id. at 687, 104 S.Ct. 2052. This standard is also applicable to a guilty plea. Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

¶ 9. At Lawson’s plea hearing, he testified that he had not been threatened or intimidated into entering his plea. Therefore, Lawson’s sworn testimony at his plea hearing contradicts his assertion in his motion for post-conviction relief.

¶ 10. Lawson’s claim that he could not have been charged as an habitual offender is clearly wrong. Lawson’s assertion is based on his contention that at least one of his prior offenses occurred before the habitual offender statute went into effect. Lawson argues that the State’s use of the offenses prior to the statute taking effect would have been an impermissible ex post facto application of that statute. However, in Smith v. State, 465 So.2d 999, 1003 (Miss.1985), the Mississippi Supreme Court decided this issue squarely against Lawson’s position.

¶ 11. In Smith, the court held that “the sentence as a fourth offender or habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.” Id. Therefore, Lawson is incorrect in his assertion that he could not have been sentenced as an habitual offender due to the fact that one of his prior convictions occurred before the habitual offender statute went into effect.

¶ 12. As such, Lawson’s assertion that he received ineffective assistance of counsel is without merit. His attorney properly informed him that if he did not accept the plea bargain, the State would charge him as an habitual offender and he would be sentenced to life in prison without the possibility of parole. Therefore, we find that Lawson’s attorney’s performance was not deficient.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO LOWNDES COUNTY.

KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS, CHANDLER AND BARNES, JJ. CONCUR.


text:
    Johnny JOHNSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00880-COA.
    Court of Appeals of Mississippi.
    Sept. 21, 2004.
    Edmund J. Phillips, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before BRIDGES, P.J., CHANDLER and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Johnny Johnson was convicted of felony shoplifting and sentenced to serve four and one half years in the custody of the Mississippi Department of Corrections. The trial court denied Johnson’s motion for a new trial, and Johnson perfected his appeal. Finding no error, we affirm.

FACTS

¶ 2. On December 6, 2002, Johnny Johnson entered Lee’s Factory Outlet in Philadelphia, Mississippi. Johnson was observed wandering around the store by two employees, Lisa Callahan and April Smith. Callahan and Smith testified that shortly after entering the store, Johnson grabbed an armful of clothing and bolted out of the door.

¶ 3. Callahan pursued Johnson with the help of several construction workers and Angie Tullos, the manager of a neighboring store, The Clothes Line. Tullos testified that she went in the opposite direction of the other pursuers and literally ran into Johnson, but was unable to stop him. However, Tullos did get a good look at Johnson’s face.

¶ 4. Jim Harbaugh also testified that he saw Callahan pursuing Johnson and tried to help her. Harbaugh testified that he saw Johnson jump into the back seat of a parked car with an armload of clothing. When Harbaugh approached the vehicle, Johnson jumped out, leaving the clothing in the car, and ran away. Harbaugh made an in court identification of Johnson and testified that he was face-to-face with Johnson when Johnson jumped out of the car.

¶ 5. Soon after Harbaugh’s encounter with Johnson, the police were called and the stolen clothing was recovered. The retail value of the stolen clothing was $291.98.

¶ 6. Later that day, a police officer came to Lee’s Factory Outlet with a single photograph of Johnson. Callahan and Smith identified the man in the picture as the same man who had stolen the clothing that morning. Callahan testified that she did not know Johnson’s name, but that she recognized him because he was a regular customer. Smith also testified that she recognized Johnson but did not know his name. Both Callahan and Smith testified that they had seen Johnson in the store numerous times and recognized him when he stole the clothes that morning.

¶ 7. The police officer also went to The Clothes Line and showed Johnson’s picture to Tullos. Tullos identified Johnson as the man that she had pursued that morning. Tullos testified that she recognized Johnson from being a customer in her store and from their encounter that morning.

¶ 8. At trial, Johnson was convicted of felony shoplifting and sentenced to serve four and one half years in the custody of the Mississippi Department of Corrections. On appeal, Johnson asserts that the trial court erred in admitting the identification testimony of Callahan and Smith.

STANDARD OF REVIEW

¶ 9. When reviewing a trial court’s findings regarding a pretrial identification which the defendant seeks to suppress, we consider “whether or not substantial evidence supports the trial court’s findings that, considering the totality of the circumstances, in-court identification testimony was not impermissibly tainted,” and we will disturb the findings of the lower court “only where there is an absence of substantial credible evidence supporting it.” Brooks v. State, 748 So.2d 736, 741 (¶ 26) (Miss.1999).

ANALYSIS

¶ 10. Johnson asserts that the trial court erred in denying his motions to suppress the identifications of Johnson as the shoplifter made by Callahan and Smith. Johnson asserts that these identifications were admitted in error because they were procured by the police officer showing the witnesses a single photograph, rather than an array of photographs. Johnson cites no Mississippi authority for this proposition nor does Johnson attack the admission of identification testimony by witnesses Tul-los and Harbaugh.

¶ 11. The admission of evidence rests within the discretion of the trial court. Martin v. State, 872 So.2d 713, 721 (¶ 25) (Miss.Ct.App.2004). It has long been established what the appropriate standards of review are for allegedly improper identifications. The Mississippi Supreme Court has held that:

Only pretrial identifications which are suggestive, without necessity for conducting them in such a manner, are proscribed. A lineup or series of photographs in which the accused, when compared with the others, is conspicuously singled out in some manner from the others, either from appearance or statements by an officer, is impermissibly suggestive.
An impermissibly suggestive pretrial identification does not preclude in-court identification by an eyewitness who viewed the suspect at the procedure, unless (1) from the totality of the circumstances surrounding it (2) the identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

Brooks v. State, 2001-KA-01826-COA, — So.2d — (¶ 7) (Miss. June 29, 2004) (citing York v. State, 413 So.2d 1372, 1383 (Miss.1982)). A court must consider five factors in evaluating the substantial likelihood of an irreparable misidentification: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty exhibited by the witness at the confrontation; and (5) the time between the crime and the confrontation. Martin, 872 So.2d at 721 (¶ 25).

¶ 12. Callahan and Smith testified that Johnson was inside the store for approximately fifteen minutes before he fled with the stolen clothing. This was ample opportunity for the witnesses to observe Johnson. Both Callahan and Smith testified that, at the time Johnson entered the store, they recognized him even though they were unsure of his name. The record shows that both Callahan and Smith were familiar with Johnson because he was a frequent customer of Lee’s Factory Outlet.

¶ 13. Callahan and Smith gave an accurate description of Johnson to those who assisted in the pursuit. Both witnesses were also certain that the man in the picture shown to them by the police was the same man who had been in the store. Furthermore, Callahan and Smith both testified that they identified Johnson as the shoplifter based on their familiarity with him rather than because his was the only photograph shown to them by the police. Even if this Court were to find that the photo identification was suggestive, which we do not given the familiarity of the witnesses with Johnson, we still find that the identifications of Johnson, made in court by Callahan and Smith, were reliable. Based on the witnesses’ opportunity to view Johnson immediately after the crime, their degree of attention, and the level of certainty demonstrated by the witnesses at both the confrontation and finally the trial, there was more than substantial credible evidence to hold the in-court identification of Johnson positive. Under the totality of the circumstances, there was far from a substantial likelihood of irreparable misidentification. Therefore, the trial court did not commit error in allowing the in-court identification of Johnson.

¶ 14. We find that the trial court did not err in admitting the testimony of Callahan and Smith. It is clear from the record that both of these witnesses were familiar with Johnson and were not imper-missibly influenced by being shown a single photograph for identification. Furthermore, even without the testimony of Callahan and Smith, both Tullos and Har-baugh identified Johnson as being the shoplifter. As such, we find that there was substantial credible evidence to support the admission of the testimony at issue, and decline to disturb the findings of the lower court.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF NESHOBA COUNTY OF CONVICTION OF FELONY SHOPLIFTING AND SENTENCE OF FOUR AND ONE HALF YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHO-BA COUNTY.

KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS, CHANDLER AND BARNES, JJ., CONCUR.


text:
    Cheryl Eaton THOMAS, on Behalf of the Lawful Heirs of Lonzo Lavern THOMAS, Appellant v. MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY and Albert Johnson, Appellees.
    No. 2003-CA-00417-COA.
    Court of Appeals of Mississippi.
    Sept. 21, 2004.

      T. Mack Brabham, McComb, attorney for appellant.
    John Gordon Roach, McComb, attorney for appellees.
   CHANDLER, J.,

for the Court.

¶ 1. Mr. Willie Thomas was issued a speeding ticket by Mississippi Highway Patrol Officer Albert Johnson for traveling ninety-two miles per hour in a fifty-five mile-per-hour zone. Mr. Thomas’s son Lonzo was in the car at the time. Approximately twelve minutes after the ticket was issued, Mr. Thomas, who was intoxicated at the time, wrecked his vehicle, causing fatal injuries to his son. Lonzo’s heirs sued the Mississippi Department of Public Safety (“MDPS”) and Officer Johnson for not checking Mr. Thomas for driving under the influence. The Circuit Court of Pike County, Mississippi, granted judgment in favor of MDPS and Officer Johnson. Cheryl Thomas, the mother and legal heir of Lonzo, appeals, raising the following issues:

I. DID OFFICER COLLINS COMMIT PERJURY, AND IF SO, DOES THIS PERJURY MANDATE A NEW TRIAL OR A DIRECTED VERDICT IN FAVOR OF THOMAS?

II. WAS THERE SUFFICIENT EVIDENCE TO SUPPORT THE DECISION OF THE LOWER COURT?

III. DID THE TRIAL COURT APPLY AN INCORRECT LEGAL STANDARD AS TO CHERYL THOMAS’S BURDEN OF PROOF?

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. At 4:50 p.m., Officer Albert Johnson was headed north on Highway 51 when he clocked Mr. Willie Thomas (“Mr. Thomas”) headed south going ninety-two miles per hour in a fifty-five mile-per-hour zone. Mr. Thomas’s 15-year-old son, Lonzo, a spina bifida patient who was paralyzed from the waist down, was in the car with him. Officer Johnson turned around, pursued Mr. Thomas for approximately two to two and a half miles, and eventually stopped Mr. Thomas in Mrs. Mary Ann Montgomery’s yard. At this time, Mr. Thomas’s blood alcohol concentration (“BAC”) was greater than .1825, but Officer Johnson claimed that he never smelled alcohol on Mr. Thomas and had no reason to check him for driving while intoxicated. Mr. Thomas told Officer Johnson that he had stopped in this yard to buy some tick hounds from a male friend. Mrs. Montgomery told Officer Johnson that her husband was dead, she did not have any dogs for sale, and she wanted him off her property. Officer Johnson wrote the speeding ticket, told Mr. Thomas to leave the premises, and both he and Mr. Thomas left.

¶ 4. Mr. Thomas left Mrs. Montgomery’s premises, drove eight miles, and wrecked his van, producing injuries to Lonzo that eventually caused his death. Mr. Thomas sustained minor injuries. At 5:07 p.m., someone discovered the wreck and called the hospital.

¶ 5. James Carlton, a emergency medical technician (“EMT”), came in the first ambulance to arrive at the scene of the accident, at 5:15 p.m. He testified that he could definitely smell alcohol on Mr. Thomas’s breath, even though he never got close to Mr. Thomas’s mouth. Gina Davis, a paramedic, was in the second ambulance, which arrived at the scene at 5:25 p.m. and left at 5:33 p.m. She stated that she could smell alcohol on Mr. Thomas’s breath and the smell was fairly strong. Todd Pounds, an EMT who was with Ms. Davis, prepared the ambulance record and wrote in the record, “Patient smells strongly of alcoholic beverage.” At 6:02 p.m., Mr. Thomas was admitted to the emergency room, where the emergency room physician examined him and wrote, “Breath smells of alcohol.” He stated that he would not take documenting the presence of alcohol lightly.

¶ 6. At the hospital, Cheryl Thomas, Lonzo’s mother and Mr. Thomas’s wife, stated that she could smell alcohol strongly in the emergency room where Mr. Thomas was being treated. Cheryl and the rest of the family waited in a room, where Cheryl demanded that a blood alcohol test be taken of Mr. Thomas. Officer Collins administered the test and allegedly stated that Mr. Thomas “reeked of alcohol.” The test was administered at 6:20 p.m. and showed a BAC of .1825.

¶ 7. Cheryl Thomas (“Thomas”, subsequently referring to all of Lonzo Thomas’s heirs) sued MDOC and Officer Johnson for failure to check Mr. Thomas for driving under the influence. The trial court, applying the Mississippi Tort Claims Act, Miss.Code Ann. § 11-46-9 (Rev.2000), found that Officer Johnson’s failure to check Mr. Thomas’s sobriety did not rise to the level of reckless disregard required for Thomas to recover against the State.

ANALYSIS

I. DID OFFICER COLLINS COMMIT PERJURY, AND IF SO, DOES THIS PERJURY MANDATE A DIRECT- • ED VERDICT IN FAVOR OF THE PLAINTIFF OR A NEW TRIAL?

¶ 8. MDPS called Officer Collins as a witness. On appeal, Thomas claims that Officer Collins committed perjury. Thomas and her family claim that Officer Collins told them that Mr. Thomas “reeked of alcohol,” but on the witness stand he repeatedly and consistently testified that he did not smell alcohol on Mr. Thomas’s person or breath. Officer Collins also testified that Gina Davis had told him that she did not smell alcohol emanating from Mr. Thomas at the accident scene, even though Gina Davis testified on the stand that Mr. Thomas smelled alcohol.

¶ 9. Officer Robert Harrell, who conducted a search warrant of Mr. Thomas’s van two days after the accident, read into evidence the affidavit for search warrant that he signed. It states in part:

Sergeant Collins told affiant that he arrived at the scene of the accident, he went to check the injuries of the driver of the vehicle, Mr. Thomas M. Thomas. When Sergeant Collins questioned Mr. Thomas, he smelled a faint odor of an alcohol [sic] beverage on his person. Sergeant Collins then asked the Emergency Medical Technician if she smelled an alcoholic beverage on Mr. Thomas. The EMT concurred with Sergeant Collins that she smelled an alcoholic beverage on Mr. Thomas.

On this evidence, Thomas’s counsel moved for a directed verdict, which the court denied.

¶ 10. On appeal, Thomas urges this Court to grant a new trial. The determination of whether a new trial should be granted on the basis of newly discovered evidence (i.e., perjury) must be made, by the trial court, on a case-by-case basis, taking into account all relevant facts and circumstances. Smith v. State, 492 So.2d 260, 263 (Miss.1986) (superseded by statute on other grounds). The determination as to whether the newly discovered evidence is such as will probably change the result if a new trial is granted is to be determined by the trial court in its discretion. Id. (citing Townsel v. State, 228 Miss. 110, 120, 87 So.2d 481, 485 (1956)). Our scope of inquiry on appeal is to determine whether the trial court abused its discretion in making this determination, as well as- making the determination of whether the allegations were sufficiently proven. Id. (citing Howell v. State, 354 So.2d 1124, 1127 (Miss.1978)).

¶ 11. We are unable to grant a new trial on the basis of Officer Collins’ testimony because the plaintiff must be able to show (1) that any such perjury was sufficiently proven and (2) the result of a new trial would be different from the one reached. Williams v. State, 669 So.2d 44, 54 (Miss.1996) (citing Moore v. State, 508 So.2d 666, 668-69 (Miss.1987)). In this case, Thomas has difficulty proving that Officer Collins committed perjury in the first place. The Mississippi Court of Appeals defined the standard in which a new trial should be granted on the basis of perjury in Golleher v. Robertson, 830 So.2d 694, 697 (¶ 11) (Miss.Ct.App.2002). It stated:

To warrant the granting of a new trial on the ground of newly discovered evidence, it must appear that the evidence is such as will probably change the result if a new trial is granted, that it has been discovered since the trial, that it could not have been discovered before the trial by the exercise of due diligence, that it is material to the issue,, and that it is not merely cumulative, or impeaching.” Meeks v. State, 781 So.2d 109(¶ 8) (Miss.2001).

In this case, the trial judge allowed Officer Collins and Officer Harrell to be fully examined and cross-examined. His testimony- not to have smelled alcohol against the conflicting affidavit is impeachment, not perjury, and the affidavit stating that he detected a faint smell of alcohol makes it cumulative with other witnesses who testified that they smelled alcohol on Mr. Thomas’s breath. The trial judge himself stated that he was troubled by Officer Collins’ testimony, indicating that it had little if any effect on his decision.

¶ 12. To argue that Officer Collins committed perjury, Thomas invokes Pierce v. Heritage Properties, Inc., 688 So.2d 1385 (Miss.1997). In Pierce, the plaintiff perjured several stages of discovery, including in depositions and at trial. Indeed, the Pierce court emphasized the fact that the plaintiff had repeatedly lied under oath and made it clear that their holding was limited to only exceptional fact situations: “[T]he focus must be on the intentional nature, as well as the pattern, of the plaintiffs conduct, which included deliberately proving false statements in three discovery mechanisms: the answers to interrogatories, the request for production of documents, and the deposition testimony.” Pierce, 688 So.2d at 1389 (citing Smith v. Cessna Aircraft Co., 124 F.R.D. 103, 107 (D.Md.1989)). In this case, we do not have a pattern of perjury on the part of Officer Collins. Although Officer Collins stated seven times on the witness stand that he did not smell alcohol on Mr. Thomas, he could have believed in good faith that this testimony was true, even if it is inconsistent with his affidavit. After all, the trial was held nearly two years after the date of the accident, and he could have forgotten what his observations were. A person who claims that a witness has committed perjury must prove it by clear and convincing evidence. Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984). Thomas has not met this burden.

¶ 13. Thomas invokes Pearson v. State, 428 So.2d 1361 (Miss.1983), to claim that a new trial should be granted on the basis of Officer Collins’ perjury. However, Pearson actually works in favor of affirming the trial court’s decision. In Pearson, the Mississippi Supreme Court affirmed the circuit court’s refusal to grant a directed verdict, even though some witnesses allegedly perjured themselves, because the alleged perjury had no effect on the verdict. Pearson, 428 So.2d at 1363. Likewise, Officer Collins’ testimony ultimately was inconsequential to the trial court’s holding.

II. WAS THERE SUFFICIENT EVIDENCE TO SUPPORT THE DECISION OF THE LOWER COURT?

¶ 14. Thomas sought to establish liability against MDOC under the Mississippi Tort Claims Act, Mississippi Code Annotated § 11-46-9 (Rev.2000), which establishes liability and immunities for governmental entities and their employees acting within the course and scope of their employment. Officer Johnson was undis-putably within the course and scope of his duties when he arrested and observed Mr. Thomas, thereby subjecting MDOC to potential liability for his acts or omissions. Under the statute, in order to prevail against MDOC, it is necessary for the trial court to find that Officer Johnson, in not detecting Mr. Thomas’s drunkenness, acted “in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury.” Miss.Code Ann. § 11 — 46—9(l)(c) (Rev. 2000). For Thomas to successfully appeal, we must find that the trial judge abused his discretion in finding that Officer Johnson did not act in reckless disregard for the safety of Lonzo and the public in general. Goforth v. City of Ridgeland, 603 So.2d 323, 329 (Miss.1992); Thornhill v. State, 561 So.2d 1025, 1030 (Miss.1989).

¶ 15. As a highway patrol officer, Officer Johnson was required to learn DUI detection techniques. The instruction of DUI detection comes from a manual called DWI Detection and Standardized Field Sobriety Tests, which Mississippi highway officers must learn as part of their training. The overall concept, stated in page IV-1, of the manual, is as follows:

The detection process begins when the police offender first suspects that a DWI violation may be occurring and ends when the officer decides that there is or there is not sufficient probable cause to arrest the suspect for DWI.
■Your attention may be called to a particular vehicle or individual for a variety of reasons. The precipitating event may be a loud noise; a cloud of dust; an obvious moving violation; behavior that is unusual, but not necessarily illegal; an equipment defect; or almost anything else. The initial “spark” of detection may carry with it an immediate, strong suspicion that the driver is under the influence; or only a slight, ill-formed suspicion; or even no suspicion at all at that time. In any case, it sets in motion a process wherein you focus on a particular individual and have the opportunity to observe that individual and to accumulate additional evidence.

¶ 16. The DUI detection process consists of three stages. The first stage is the “detection in motion” stage, where the police officer observes any erratic driving and anything else that would constitute the possibility of a DUI. In the second stage, the officer takes notice of the characteristics of the driver himself. In this stage some of the questions the police officer must ask are, “When I approach the vehicle, what do I see? When I talk with the driver, what do I hear, see and smell? How does the driver respond to my questions? Should I instruct the driver to exit the vehicle? How does the driver exit? When the driver walks toward the side of the road, what do I see?” The third and final stage is pre-arrest screening, consisting of tests such as horizontal gaze nystag-mus, walk and turn, and one leg stand. Officer Johnson observed Mr. Thomas in stages one and two of DUI detection, but he did not perform any pre-arrest screening tests. ■

¶ 17. To argue that there was insufficient evidence to support the trial court’s decision, Thomas challenges the credibility of Officer Johnson.' Mr. Thomas’s sister testified that she could smell alcohol on Mr. Thomas’s breath immediately before he drove off from her home, at 4:45 p.m. In addition, three emergency management technicians, an emergency room physician and Thomas could all corroborate that they could smell alcohol on Mr. Thomas. Thomas presents two possible explanations as to Officer Johnson’s omission. If Officer Johnson smelled alcohol and allowed Mr. Thomas to leave, it was reckless disregard. Alternatively, if Officer Johnson did not notice Mr. Thomas’s drunkenness in spite of the manifestations that he was drunk, Officer Johnson showed utter incompetence in his job, exhibiting reckless disregard for not subjecting Mr. Thomas to field sobriety tests. We are not persuaded by this assessment.

¶ 18. Thomas urges that the most compelling reason for Officer Johnson to have administered the field sobriety tests is the sheer speed that Mr. Thomas was driving his van. To substantiate the argument, she relies on the language of the DWI detection manual, which states, “Drinking drivers are more likely than other drivers to take excessive risks such as speeding or turning abruptly.” Officer Johnson himself admitted that speeding alone is enough to call attention to the fact that the driver may be under the influence. The trial judge acknowledged that driving ninety-two miles per hour was both “foolish” and “dangerous.” Thomas points out other facts in the case that are indicia of recklessness. The section of Highway 51 where Officer Johnson stopped Mr. Thomas is very hilly, and many residential streets intersect with Highway 51. Officer Johnson’s pursuit of Mr. Thomas lasted approximately 2 miles, raising the possibility that Mr. Thomas had something to hide. And Officer Johnson knew that Mr. Thomas had lied to him about the reason for stopping at Mrs. Montgomery’s house. We are not persuaded by these arguments. While Mr. Thomas was clearly reckless in his driving, his recklessness does not necessarily raise the presumption that he was under the influence of alcohol. The DWI manual lists twenty characteristics of drivers under the influence; excessive speed is not one of those characteristics. While the DWI manual states that drivers under the influence are more reckless than drivers not under the influence, it does not list recklessness as a characteristic indicating impairment. In fact, expert testimony revealed that Mr. Thomas did not exhibit any of the twenty cues that would indicate impairment while he was in Officer Johnson’s presence.

¶ 19. We find that the trial judge did not abuse his discretion in finding that Officer Johnson’s failure to check for DUI constituted a higher standard of care than reckless disregard. There was evidence in phase one of the DUI detection process that suggests that Mr. Thomas was sober. When Officer Johnson pursued Mr. Thomas, he noted that a proper turn signal for a left turn was executed. Officer Johnson also observed Mr. Thomas properly turn into Mrs. Montgomery’s residence and safely stop. When Mr. Thomas drove on the road leading to Mrs. Montgomery’s residence, his speed was forty to forty-five miles per hour, not an excessive speed. Officer Johnson testified that evading an arrest is not necessarily an indication of intoxication. He also testified that in his sixteen years as a highway patrolman he has stopped numerous people for speeding who are not under the influence and that he should look at other things before deciding that a driver might be intoxicated.

¶ 20. Phase two of the DUI detection process, Officer Johnson’s observations of Mr. Thomas, likewise show that Officer Johnson could have reasonably believed that Mr. Thomas was not under the influence. These factors were duly noted in the trial court’s decision and noted in expert testimony. When Mr. Thomas stopped he reached out and unfastened a latch on the outside of the door with his hand and did it without difficulty. He asked if he could get out of the vehicle to get his driver’s license, walked out of his van without staggering, and retrieved his license without fumbling and presented his license to Officer Johnson without difficulty in deciding which document was his driver’s license. Officer Johnson performed a driver’s license check with a police substation in Brookhaven and learned that Mr. Thomas had a valid license with no history. He found Mr. Thomas’s story about buying a tick hound from Mrs. Montgomery to be inconsequential because it is not unusual for sober drivers to give false statements; their nervousness in front of law enforcement officers sometimes makes them tell false or shaky stories even when they have done nothing wrong. Mr. Thomas was not injured in any way nor breathing heavily or perspiring. When he left Officer Johnson’s presence, Mr. Thomas drove away-exhibiting nothing unusual or erratic about his driving. On the facts we recited, we find that there was sufficient evidence for the trial judge to hold that Officer Johnson’s omission did not rise to the level of gross, disregard for Lonzo’s safety.. In finding reckless disregard, the trial judge must look at the totality of the circumstances of Officer Johnson’s conduct. City of Jackson v. Brister, 838 So.2d 274, 279 (¶ 20) (Miss.2003). Thomas submits that it should have been painfully obvious to even a rookie highway patrolman that Mr. Thomas should have been checked for sobriety. Because there were many mitigating factors in Officer Johnson’s- favor, we cannot agree.

¶ 21. ' Family members and medical personnel at the accident scene and in the hospital all smelled alcohol on Mr. Thomas’s breath while Officer Johnson did not. Thomas submits that such a fact shows reckless disregard on the part of Officer Johnson. However, the trial judge outlined that part of the testimony very specifically. He noted that some of the persons who testified that they smelled alcohol were in enclosed places, a significant observation because the' smell would have a greater concentration in an enclosed place than it would outdoors. Expert testimony revealed that after an injury, a person’s body gets rid of alcohol not only through his breath, but also by tears, sweat, and other bodily excretions, so that an observant can smell alcohol through a person’s breath plus the other eliminants, making the concentration of alcohol stronger. Moreover, although other witnesses came into close contact with Mr. Thomas, Officer Johnson was never closer than three or four' feet to Mr. Thomas. Given Mr. Thomas’s chronic problems with alcohol abuse as shown at trial, there is also a distinct possibility that he consumed some beer after leaving the presence of Officer Johnson. We find that the trial judge did not abuse his discretion in finding that Officer Johnson’s failure to smell alcohol on Mr. Thomas constituted a higher standard of care than reckless disregard.

III. DID THE TRIAL COURT APPLY AN INCORRECT LEGAL STANDARD AS TO THE PLAINTIFF’S BURDEN OF PROOF?

¶ 22. The trial court specifically stated that Thomas would have to show reckless disregard on the part of Officer Johnson in order to recover against the State. Both parties agree that reckless disregard is the correct standard, but they disagree as to whether the trial judge properly applied this standard. The Mississippi Supreme Court defined reckless disregard in City of Jackson v. Lipsey, 834 So.2d 687, 691(¶ 16) (Miss.2003):

While we agree that reckless disregard would encompass gross negligence, we hold that reckless disregard is a higher standard than gross negligence by which to judge the conduct of officers.
“Disregard” of the safety of others is at least negligence if not gross negligence. Because “reckless” precedes “disregard,” the standard is elevated. As quoted above from Black’s Law Dictionary, “reckless,” according to the circumstances, “may mean desperately heedless, wanton or willful, or it may mean only careless, inattentive or negligence.” Id. at 1270. In the context of the statute, reckless must connote “wanton or willful,” because immunity lies for negligence. And this Court has held that “wanton” and “reckless disregard” are just a step below specific intent.. See Evans v. Trader, 614 So.2d 955, 958 (Miss.1993).
Turner v. City of Ruleville, 735 So.2d 226, 229-30 (Miss.1999). “Our case law indicates ‘reckless disregard’ embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act.” Id. at 230 (citing Raney v. Jennings, 248 Miss. 140, 147, 158 So.2d 715, 718 (1963)).

¶23. To support her argument that Officer Johnson acted in reckless disregard, Thomas relies on the cases of City of Jackson v. Perry, 764 So.2d 373 (Miss.2000); Maye v. Pearl River County, 758 So.2d 391 (Miss.1999); and Turner v. City of Ruleville, 735 So.2d 226 (Miss.1999). The Lipsey court distinguished these cases in this way: “The common denominator in these cases is that the conduct involved evinced not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved.” Lipsey, 834 So.2d at 693 (¶ 21) (citing Maldonado v. Kelly, 768 So.2d 906, 910-11(¶11) (Miss.2000)). In Turner, the court found reckless disregard on the part of a police officer who allowed a visibly intoxicated driver to continue driving. Turner, 735 So.2d at 230(¶ 21). However, this case is distinguishable from Turner because it was not obvious, based on Officer Johnson’s observations of him, that Mr. Thomas was intoxicated. There is no evidence that Mr. Thomas was visibly intoxicated while he was in Officer Johnson’s presence.

¶ 24. In this case, the trial judge found that Officer Johnson neither appreciated an unreasonable risk nor deliberately disregarded such a risk. The court stated:

What for me is one of the most troubling issues for me in this case is why would any officer let a drinking driver go. And with my experience, almost thirty years, as a prosecutor and defense attorney and a judge, I’ve never known an officer that would ignore a drunk driver if he had known or she had known that driver to be drunk. It’s not part of my experience. In fact my experience has been the opposite.

Thomas takes exception to this statement, arguing that under this interpretation the only way to show reckless disregard would be to extract an admission of actual knowledge by the law enforcement official of an intake of intoxicating substances. We disagree with this characterization and believe that the trial judge’s experience with law enforcement officers was just one factor that he considered. The trial court’s statement should be taken into context with other observations he made. He noted that Officer Johnson had the incentive to have arrested Mr. Thomas if he had known that Mr. Thomas was drunk, because the two did not know each other personally. He also stated that the arrest and scene of the arrest were gone over minute by minute and practically second by second at trial. He noted that the arrest for speeding was in the daytime, not at night when DUIs are prevalent; that Mr. Thomas had his son in the car and not a drinking buddy; and that although Mr. Thomas’s statement about buying the dogs from Mr. Montgomery was not the truth, Mrs. Montgomery did know Mr. Thomas and she did have dogs. By the time the judge rendered his decision, he was well aware of Officer Johnson’s thought processes at the time of the arrest, and he assessed the credibility of Officer Johnson and the other witnesses. He legitimately held that Officer Johnson did not show reckless disregard in his duties. The trial judge, sitting in a bench trial as the trier of fact, has the sole authority for determining the credibility of the witnesses. See Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1265 (Miss.1987); Hall v. State ex rel. Waller, 247 Miss. 896, 903, 157 So.2d 781, 784 (1963).

¶25. Thomas also believes the court was sidetracked in discussing the constitutional protections of people who are suspected of driving under the influence. She points out, correctly, that no constitutional prohibitions stopped Officer Johnson from performing sobriety tests on Mr. Thomas. Saucier v. City of Poplarville, 858 So.2d 933, 935(¶ 12) (Miss.Ct.App.2003); Edwards v. State, 795 So.2d 554, 565-66(¶ 47) (Miss.Ct.App.2001). Thomas misinterprets the point the trial judge made in discussing constitutional protections. The judge never held that,Officer Johnson was constitutionally prohibited from performing sobriety tests on. Mr. Thomas. Instead, he wanted to emphasize the fact that DUI .detection is very difficult, in large part because constitutional considerations loom large in an officer’s decision to administer sobriety tests, and accordingly, police officers should be afforded some latitude in deciding not to check drivers for DUI. We find that the trial court’s discussion of constitutional protections was yet another mitigating factor in deciding that Officer Johnson did not show .reckless disregard. Of course, there was nothing that would have stopped Officer Johnson from asking Mr. Thomas whether he had been drinking, and- Officer Johnson in hindsight would probably have followed up with additional questions and tests. Even so, there was sufficient evidence for the trial court to find that Officer Johnson did not- act in reckless disregard for the safety of Lonzo and the public.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY IS AFFIRMED.' ALL COSTS ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES AND LEE, P.JJ., MYERS, GRIFFIS AND BARNES, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.

      . In Mississippi, an offense for driving under the influence of alcohol is called a DUI. Miss. Code Ann. § 63-11-5 (Rev.2000). In some other states, the offense is called a DWI. The two terms have the same meaning for the purpose of this case because there is no evidence that Mr. Thomas was under the influence of anything other than alcohol. The manual by which Mississippi highway officers learn to detect violations is used in all 50 states and employs the term DWI. The term DWI is used in this opinion only when referring to the manual.


text:
    James C. MATHIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-CP-01826-COA.
    Court of Appeals of Mississippi.
    Sept. 21, 2004.

      James C. Mathis, appellant, pro se.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee:
   MODIFIED OPINION ON MOTION FOR REHEARING

GRIFFIS, J.,

for the Court.

¶ 1. The previous opinion of this Court is withdrawn and this opinion substituted. We grant the State’s motion for rehearing and supplement the record to include documents to address the problems raised in the previous opinion and eliminate the necessity of a remand of this case.

¶ 2. James C. Mathis was denied any relief after filing a motion for post-conviction relief in the Circuit Court of Lafayette County. Relief was denied without a hearing, and Mathis has appealed. Among the issues raised in his pro se appeal is an assertion that his due process rights were violated when his probation was revoked in a proceeding for which he did not receive proper notice. Finding that the trial court properly denied Mathis relief on this claim, we affirm.

¶ 3. Mathis was brought before the circuit court for a probation revocation hearing in August 2002. The record includes the transcript of the revocation hearing. The circuit judge specifically asked Mathis, “Have you had an opportunity to go over the petition?” And stated, “You know what’s been filed against you.” No where in the hearing does Mathis indicate that he did not have proper notice of the hearing or that he was not aware of the specific grounds for the revocation of his probation. At the hearing when asked by the circuit judge if he- was guilty of refusing to take a drug, test, Mathis admitted, “I refused to take the test.” After hearing this admission, the judge stated that he was “going to require Mathis to serve the balance of the sentence. Whatever is left on it, you’ll serve it.”

¶ 4. As the court noted, this August 2002 hearing was not Mathis’ first probation revocation hearing. The record contains two previous orders revoking probation and imposing sentence. Condition (k) on both orders states: “Submit, as provided in Section 47-5-601 to any .type of breath, saliva or urine chemical analysis test, the purpose of which is to detect the-possible presence of alcohol or a substance prohibited or controlled by any law of the State of Mississippi or the United States.” At the August 2002 hearing, the court noted:

[Y]ou were indicted in this county for burglary of a dwelling, and that was reduced. You were sentenced on a burglary, put on probation, revoked, out again, indicted for burglary of a dwelling in the year 2000, reduced to burglary, put in the house arrest program, revoked, sent to the penitentiary, released from the penitentiary, put back out on post-release supervision. I don’t -know of any other opportunity the State of Mississippi has to do anything to you. I mean they’ve tried probation, tried incarceration in the penitentiary, tried post-release supervision.-...”

¶ 5. Mathis subsequently filed a motion in which he alleged under oath that he had not received notice of the hearing that properly informed him of the allegations upon which revocation was sought, made the necessary disclosures of the evidence of the violation, and offered him a reasonable time to prepare for the hearing. As the record clearly indicates, Mathis did not raise these issues at the time of the revocation hearing even when the court gave Mathis the opportunity. The appeal record, including the supplemental documents, also shows that Mathis cannot claim to be ignorant of the terms of probation or the basis for the court’s action in this case.

¶ 6. The circuit court, when faced with a motion for post-conviction relief, may summarily deny relief where “it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief....” Miss.Code Ann. § 99-39-11(2) (Rev.2000). In reviewing the trial court’s denial of a petition for post-conviction relief, this Court will not disturb the factual findings of the trial court unless they are determined to be clearly erroneous. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). Here, the court found that Mathis “was not deprived of any constitutional rights, either at his original sentencing or the subsequent probation revocation proceedings.”

¶ 7. We conclude that Mathis is, in fact, not entitled to any relief on the basis of his motion. The record conclusively shows that Mathis had notice of the terms of probation and that the court had a sufficient basis for revoking probation. Mathis’ own statements to the court clearly support this conclusion. We affirm.

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

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