author: MYERS, P.J.,

text:
    Lisa Hinton COUNCIL, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00403-COA.
    Court of Appeals of Mississippi.
    May 1, 2007.
    Rehearing Denied Nov. 20, 2007.

      Jonathan M. Farris, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   MYERS, P.J.,

for the Court.

¶ 1. Lisa Hinton Council was found guilty of murdering Darlene Latham by deliberate design and sentenced to serve a term of life in the custody of the Mississippi Department of Corrections. She now appeals her conviction on several grounds, seeking a new trial. Finding no error, we affirm.

FACTS

1Í 2. In the early morning hours of July 27, 2002, Lisa Hinton Council returned to the home she shared with her boyfriend, Isaac Harris, after an evening of dancing and drinking at a nearby club. Council took a bath, and was dressing for bed when she heard Harris speaking to someone else, presumably at the door, saying “come in.” Council then discovered Darlene Latham entering the home. Testimony at trial adduced that Council and La-tham had prior altercations and arguments with each other in past years, usually stemming from Latham’s previous relationship with Harris. Council testified to having told Latham to leave, but Latham refused. An argument ensued, and Council retreated to the bedroom to retrieve a knife kept in her purse. Latham followed Council to the bedroom and the argument continued. Council testified that she proceeded to “swing” the knife at Latham. Latham was stabbed six times and died as a result of the wounds. A few hours after Latham died, Council surrendered to the Hattiesburg Police Department, waived her rights and gave a complete statement confessing to stabbing and killing Latham.

¶ 3. On May 9, 2005, Council’s two-day trial began. Sixty-six jurors were initially selected for the venire panel. Of these sixty-six jurors, forty-two were Caucasian and twenty-four were African-American. Voir dire ended after only forty-two of the initial sixty-six jurors were seated. Of the forty-two potential jurors interviewed, twelve were African-American. During jury selection, the State exercised ten of its allotted twelve peremptory challenges and one alternate peremptory challenge to strike African-Americans from the jury. One other African-American potential juror was excused for cause. Ultimately, the racial makeup of the jury that convicted Council, who is African-American, consisted entirely of Caucasian jury members. Council now appeals her conviction, seeking review of several issues, which we have recast for clarification.

DISCUSSION

I. WHETHER THE STATE’S EXERCISE OF PEREMPTORY CHALLENGES VIOLATED BATSON?

¶ 4. Council claims that the trial court erred in failing to find that she had made a prima facie showing of the State’s purposeful racial discrimination in striking potential jurors from the panel. She argues that the court’s error is evident in its allowing the State to use ten of its twelve available peremptory challenges and one alternate challenge to strike African-American potential jurors, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), from the jury panel. However, in her brief to this Court, Council only takes issue with the State’s striking of nine of the potential jurors. Council further argues that the trial court committed reversible error in failing to require the State to proffer race-neutral reasons for all peremptory strikes exercised against African-American potential jurors and in failing to make an on-the-record factual determination whether each reason proffered by the State was, in fact, race-neutral. She asserts that the failure of the trial court to require the prosecutor to provide race-neutral reasons for the exercise of peremptory challenges entitles her to a new trial.

¶ 5. We are to give great deference to the trial court’s determination under Batson and will not reverse a trial court’s determination unless the record indicates that the trial court’s decision was against the overwhelming weight of the evidence or clearly erroneous. Berry v. State, 802 So.2d 1033, 1037(¶ 9) (Miss. 2001). In order to state a prima facie case of purposeful discrimination under Batson, the objecting party must show to the trial judge (1) that he or she is a member of a recognized racial group; (2) that the prosecution utilized peremptory challenges to strike members of the defendant’s racial group from the jury panel; (3) and that the facts surrounding the use of the peremptory challenge infer a discriminatory purpose on part of the prosecutor. Snow v. State, 800 So.2d 472, 478(¶ 10) (Miss. 2001). If the challenging party makes its prima facie case before the trial court, then the party exercising the peremptory challenge has the burden to articulate a race-neutral explanation for excluding that potential juror. McFarland v. State, 707 So.2d 166, 171(¶ 14) (Miss.1998). Once a race-neutral reason has been given by the party exercising the peremptory challenge, the opponent can then attempt to rebut the given explanation. Flowers v. State, 947 So.2d 910(¶ 9) (Miss.2007) (holding that the “burden remains on the opponent of the strike to show that the race-neutral explanation given is merely a pretext for racial discrimination.”) Our supreme court “has recognized five indicia of pretext that are relevant when analyzing the race-neutral reasons offered by the proponent of a peremptory strike,” specifically:

(1) disparate treatment, that is, the presence of unchallenged jurors of the opposite race who share the characteristic given as the basis for the challenge; (2) the failure to voir dire as to the characteristic cited ... (3) the characteristic cited is unrelated to the facts of the case; (4) lack of record support for the stated reason; and (5) group-based traits.

Id. (citing Manning v. State, 765 So.2d 516, 519(¶ 9) (Miss.2000) (citations omitted)). The trial judge then must determine whether the objecting party has met its burden to prove that there was purposeful racial discrimination in utilizing the peremptory strikes. Id.

¶ 6. Here, the trial judge found that no prima facie case of purposeful racial discrimination had been established. Nevertheless, the State voluntarily provided race-neutral reasons for striking several of the potential veniremen for the purpose of developing the record. As an appellate court, we are to review whether the trial judge erred in declining to find that a prima facie case had been made by Council.

¶ 7. We begin our discussion of whether the trial court erred in dismissing the Batson challenges by addressing a fundamental problem with several of Council’s points of issue. Council challenges the exclusion of nine jurors from the panel in her appeal today. However, several of Council’s Batson challenges that are appealed to us today were not objected to during voir dire. Our review of the record finds that Council made a Batson challenge at two different times during voir dire. These Batson objections during voir dire only challenged the State’s exclusion of Jurors No. 2, No. 7, No. 8, No. 13, No. 15, No. 20 and No. 32 from the panel. Only the exclusion of Jurors No. 2, No. 7, No. 20 and No. 32 initially challenged under Batson is appealed to us today. When there has not been an objection to the removal of jury members at trial, an appellate court does not have the authority to consider the issue, as it is procedurally barred on appeal. Flowers v. State, 947 So.2d at (¶ 8); Spicer v. State, 921 So.2d 292, 320(¶ 62) (Miss.2006) (holding that challenges for cause must be objected to at the trial level before an appellate court can review); Stephens v. Kemco Foods, Inc., 928 So.2d 226, 232(¶ 11) (Miss.Ct.App.2006) (citing Mack v. State, 650 So.2d 1289, 1297 (Miss.1994) (holding that the objecting party must challenge the proffered race-neutral reason as pretextual at the trial court level or the challenge is waived on appeal)). Thus, we find the challenges to the exclusion of Jurors No. 21, No. 23, No. 25, No. 28, and No. 40 made by Council for the first time on appeal are procedurally barred. Although the procedural bar alone is dispositive on the issue, we, nonetheless, address the merits of each of the arguments concerning the stricken jurors individually in our discussion of whether the trial court erred in accepting the prosecutor’s reasons as race-neutral under

Batson.

A. Juror No. 2

¶ 8. During voir dire, the prosecution struck Juror No. 2 by exercise of a peremptory challenge and Council .lodged a Batson challenge. Upon objection from defense counsel, the prosecutor voluntarily provided his race-neutral reason to strike the juror based on his family friendship with a member of the defense counsel and stated that he believed the juror attended the same church as the defense attorney. Following the State’s volunteering of race-neutral reasons, the trial judge held that a prima facie case of purposeful discrimination had not been made by Council, made a finding that the reasons provided by the prosecution were race-neutral, and overruled the defense’s objection. Council argues, for the first time on appeal, that the reasons given by the State for striking Juror No. 2 from the panel were pretextual as they were based on disparate treatment and unsupported by the record.

¶ 9. Council alleges disparate treatment by stating that Jurors No. 22 and No. 27 had the same characteristics as Juror No. 2, but that the prosecution struck Juror No. 2, who is African-American, and declined to strike either Juror No. 22 or No. 27, who are Caucasian. Disparate treatment during the jury selection process has been defined as “the presence of unchallenged jurors of the opposite race who share the characteristic given as the basis for the challenge.” Manning, 765 So.2d at (¶ 9). Our review of the record finds that Council’s argument regarding disparate treatment to be flawed.

¶ 10. The voir dire transcript reveals that Juror No. 2 indicated that a member of the defense counsel was a friend of his family. This reason was voluntarily provided by the State in proffering a race-neutral reason for striking the juror. In comparison, Juror No. 22 indicated during voir dire nothing more than the fact that he “was aware of the attorneys” through his work with the youth court system. The fact that a potential juror knows one of the attorneys involved in the case is entirely different than a situation where a potential juror has a family friendship with a particular defense attorney. The supreme court has held that a friendship or having the acquaintance of a member of the defense team is an acceptable race-neutral reason to strike a venireman. Gaskin v. State, 873 So.2d 965, 970-71(¶ 17) (Miss.2004).

¶ 11. The characteristics of Juror No. 2 and Juror No. 27 are furthermore distinguishable. While Juror No. 2 admitted a family friendship with a member of the defense counsel, Juror No. 27 explained during voir dire that a witness expected to testify was one of his former high school teachers. While the record is devoid of the number of years that had passed between the time Juror No. 27 attended high school and was taught by the potential witness and the time period of the trial, the record does reflect that Juror No. 27 was a practicing attorney. Thus, we can at least estimate that there had been a significant lapse of time between the time period that Juror No. 27 was associated with the potential witness who was his former high school teacher. When evaluating the connections between the jurors for the potential of prejudice, it seems obvious that the relationship of a current family friendship far outweighs a former student-teacher relationship. We cannot find that the state’s failure to object to Jurors No. 22 and No. 27, as opposed to its challenge of Juror No. 2 is an example of disparate treatment.

¶ 12. Lastly, Council argues that the State’s assertion that Juror No. 2 attended church with a member of the defense counsel is unsupported by the record. Upon our review of the record, we agree that the prosecution’s assertion that Juror No. 2 attended church with a member of defense counsel is not supported by the voir dire transcript. However, as we find that the exercise of a peremptory challenge against Juror No. 2 based upon the family friendship with the defense counsel, was not in violation of Batson, this error, alone, is harmless.

B. Juror No. 7

¶ 13. Juror No. 7 was struck from the panel by the State and the defense objected. The prosecution defended the use of the peremptory strike voluntarily, without the prompt of the trial court, and provided that its race-neutral reason for striking Juror No. 7 was based on the juror’s coming forward and indicating to the court that she did not want to serve on the jury. At the time of the objection, the State had struck five jurors, four of whom were African-American. The trial judge held that a prima facie case had not been established at the time of the objection and found that the reason given by the State for its exercise of the challenge was sufficiently race-neutral. As to the merits of the prosecution’s volunteered race-neutral reason, we note that our supreme court has spoken to the issue of striking a juror based upon his or her not wanting to serve. “A juror’s reluctance to serve or preoccupation with matters outside the courtroom is a valid race-neutral reason for purposes of Batson.” Manning, 765 So.2d at (¶ 31). We cannot find error in this trial court ruling.

C. Juror No. 20

¶ 14. The defense specifically objected to the striking of Juror No. 20 and asked the court to require the prosecution to provide a race-neutral reason for the use of the challenge. The State responded by pointing out that Juror No. 20 indicated during voir dire that her cousin had been convicted of murder. The trial court found the family member’s conviction to be a sufficient race-neutral reason and overruled Council’s argument. Our review of the record also provides that Juror No. 20 told the court that her cousin’s conviction of murder had impacted her greatly. Additionally, the juror provided that a family member was serving in law enforcement in the Hattiesburg Police Department and she indicated that this fact would make her give more weight and credibility to law enforcement witnesses than other witnesses. Each of these reasons have been found to be race-neutral reasons. See Flowers, 947 So.2d at (¶ 89); Mhoon v. State, 464 So.2d 77, 80 (Miss.1985). Thus, we find no error in the ruling of the trial court.

D. Juror No. 21

¶ 15. The State struck Juror No. 21 and volunteered, without the direction of the trial judge, the race-neutral reason that Juror No. 21, at the time of voir dire, had an active warrant outstanding for her arrest and the prosecutor suspected her of being asleep. Council rebutted this proffered reason, arguing that she was unaware of any sleeping. However, the trial judge accepted the prosecutor’s race-neutral reasons. For the first time, on appeal, Council now argues that the prosecution never produced a copy of the outstanding arrest warrant and asserts that the trial court erred in failing to require further questioning regarding the warrant.

¶ 16. Our supreme court has addressed the issue of relying on outside sources for the basis of peremptory strikes. The court stated,

[w]hile we do not hold today that our trial judges should conduct a ‘mini-hearing’ within a Batson hearing each time a peremptory challenge is exercised based on information gained from outside sources, we do depend on the trial courts to exercise caution to ensure that peremptory challenges based on information from outside sources is credible and supported by on-the-record factual findings to this effect and that a complete record is made on this issue. If in doubt about the validity of outside information, the trial court should do what is necessary to ensure the proposed reasons are non-pretextual.

Brawner, 872 So.2d at (¶ 31). While the trial court did not question the source of the outside information regarding an outstanding warrant for Juror No. 21, we cannot say that this decision was error. The State was not required to question Juror No. 21 regarding the outstanding arrest warrant. “[A] prosecutor does not have to question a juror in open court about such information [he has about that juror] before using it as a racially neutral ground to make a peremptory strike, as long as the source of the information and the practice itself are not racially discriminatory.” Snow, 800 So.2d at (¶ 26).

¶ 17. A juror’s criminal history, as well as the existence of a valid outstanding arrest warrant for the juror, are race-neutral reasons to strike a juror. Flowers, 947 So.2d at (¶ 26). The State was not required to question Juror No. 21 about the outstanding arrest warrant before exercising a peremptory strike against her, nor was a mini-hearing required to substantiate the existence of an outstanding arrest warrant.

E. Juror No. 23

¶ 18. The Appellant lodged no Batson objection to the striking of Juror No. 23 at trial, thus she is procedurally barred from having the issue decided here. However, we note that Juror No. 23 relayed to the trial court during voir dire that one of the defense attorneys was formerly his sister-in-law, that his brother was a murder victim, and that he thought it was better if a criminal defendant testified on her own behalf rather than not. Setting aside the juror’s close family relationship with one of the attorneys, and the fact he had been impacted by a violent crime, it is clear that Juror No. 23 had already formed an opinion about the case, which was a valid race-neutral reason to strike him from the jury. Flowers, 947 So.2d at (¶ 58).

F.Juror No. 25

¶ 19. No objection was made to the striking of Juror No. 25 at trial, but we proceed with discussion on the merits of the challenge. Juror No. 25 informed the court that a member of the defense counsel was her sorority sister, that she knew one of the potential witnesses and that she was friends with a potential witness. The juror’s relationship with the defense attorney, alone, was sufficient as an acceptable race-neutral reason to strike. Gaskin, 873 So.2d at 970. Thus, the exercise of a peremptory strike against Juror No. 25 would not have been in violation of Batson.

G. Juror No. 28

¶ 20. The striking of Juror No. 28 was not objected to by Council until her appeal. However, we address the merits of the peremptory striking in noting that Juror No. 28 divulged during voir dire that one of the potential witnesses was her friend’s mother. This personal relationship with the potential juror’s family member provides an adequate race-neutral reason for striking Juror No. 28. Thus, this reason would have provided a sufficient race-neutral reason.

H. Juror No. 32

¶21. Council objected to the State’s striking of Juror No. 32, asserting a violation of Batson during voir dire. When the State was prompted by the trial judge to proffer a race-neutral reason, the prosecutor stated he struck Juror No. 32 from the jury for failing to make eye contact, for appearing to be asleep or bored, and for failing to listen during voir dire. Defense counsel rebutted the prosecutor by stating “I didn’t see any of that,” but the trial court ultimately found that the prosecutor’s proffered reasons were race-neutral. “Inattentiveness, demeanor, sleeping during voir dire, [and] lack of eye contact ... have all been held by [the supreme court] to be race-neutral reasons in keeping with Batson.” Burnett v. Fulton, 854 So.2d 1010, 1014(¶ 10) (Miss.2003). We find no error in the trial court’s overruling Council’s objection.

I. Juror No. 40

¶ 22. While Juror No. 40 was being questioned, he indicated that he believed that one must retreat as their first option before defending him or herself. As the case against Council involved a defense of self-defense, this answer made clear that Juror No. 40 had already formulated an opinion and had personal beliefs about an important aspect of the case. The fact that a juror has already formed an opinion about the case is a valid race-neutral reason to strike them from the jury. Flowers, 947 So.2d at (¶58). In declining to find a Batson violation, the trial court did not find that the circumstances surrounding the State’s exercise of its peremptory challenges indicated purposeful discrimination. Our review of the record finds no error on the part of the trial judge.

II. WHETHER THE TRIAL COURT ERRED IN DENYING COUNCIL’S MOTIONS FOR MISTRIAL AND FOR A NEW TRIAL DUE TO THE INTRODUCTION OF INFORMATION NOT DISCLOSED TO THE DEFENSE DURING DISCOVERY?

¶ 23. Council claims that the trial court erred in denying her motion for mistrial, specifically because a new trial was warranted due to two instances she describes as discovery violations. The State argues that Council’s failure to request a continuance is fatal to her discovery claim on appeal and cites for its proposition the holding of McGowen v. State, 859 So.2d 320 (Miss.2003). We are to review a trial court’s denial of a motion for mistrial for abuse of discretion. Irby v. Travis, 935 So.2d 884, 908(¶ 68) (Miss.2006). “The failure of a trial court to grant a motion for mistrial will not be overturned on appeal unless the trial court abused its discretion.” Id.

¶ 24. The first objection was made by Council while Council’s boyfriend, Harris, was being cross-examined. Harris was asked whether he invited Latham to the house on the evening in question and he responded “No, I didn’t. I hadn’t seen her.” At this time in the trial, a note from the gallery was passed to the prosecution’s table containing information indicating that Harris was spotted driving Latham around in his vehicle the day before she was killed in his home. With this knowledge, the State, on redirect, asked Harris again whether he had contact with Latham the day before she was killed. Harris responded that he could not remember. Then, Harris was questioned regarding his being with Latham the day before her death. At this point in the testimony, the defense objected to the questioning on redirect, arguing that the information regarding the recent contacts between Harris and Latham was not produced during discovery. The trial judge called for recess and the defense was able to question the source of the new information. Council did not ask for a continuance.

¶ 25. The second instance that Council characterizes as a discovery violation occurred during the testimony of the defense’s character witness, Vermester Bes-ter. Bester testified to her church’s counseling of Council during the months pending trial, while she was released from custody on bond. On cross-examination, the State inquired of Bester whether she had heard of Council stabbing her boyfriend seven months prior, while Council was awaiting her trial. The defense objected to this line of questioning, stating that this information was not produced during discovery. Again, the defense did not request a continuance from the trial court.

¶ 26. The Supreme Court held in McGowen that there are certain procedural steps trial courts must follow when faced with new or undisclosed information arising during trial that was not obtained in discovery. The court stated:

1. Upon defense objection, the trial court should give the defendant a reasonable opportunity to become familiar with the undisclosed evidence by interviewing the witness, inspecting the physical evidence, etc. 2. If, after this opportunity for familiarization, the defendant believes he may be prejudiced by lack of opportunity to prepare to meet the evidence, he must request a continuance. Failure to do so constitutes a waiver of the issue. 8. If the defendant does request a continuance the State may choose to proceed with trial and forego [sic] using the undisclosed evidence. If the State is not willing to proceed without the evidence, the trial court must grant the requested continuance.

McGowen, 859 So.2d at (¶ 57) (emphasis added). In accordance with the precedent of McGowen, we find that because Council did not request a continuance, this issue is waived.

III. WHETHER THE TRIAL COURT ERRED IN ALLOWING IMPERMISSIBLE HEARSAY TESTIMONY?

¶ 27. Council characterizes the admittance of portions of testimony provided by two witnesses at trial as impermissible hearsay. The admissibility of testimonial evidence is left to the sound discretion of the trial court within the boundaries of the Mississippi Rules of Evidence, and it will not be found in error unless the trial court has abused its discretion. Harris v. State, 861 So.2d 1003, 1018(¶ 41) (Miss.2003). “Such error will warrant reversal only when the abuse of discretion has resulted in prejudice to the accused.” Id.

¶28. The substance of the testimony that Council argues should not have been allowed consists of descriptions from two witnesses who overheard the ensuing argument between Council and La-tham immediately before Latham was stabbed. This testimony qualifies as an exception to the hearsay rule as a statement of a then-existing mental condition, or state of mind under Mississippi Rule of Evidence 803(3). “Mississippi Rule of Evidence 803(3) encompasses relevant statements made by murder victims before their death.” Id. at (¶ 42). The statements the witnesses overheard Council make to Latham and Latham make to Council just before the fight began are relevant to show that Council intended to fight and might have been the initial aggressor. We cannot find error in the trial court’s admission of this testimony.

IV. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE INTRODUCTION OF COUNCIL’S PRIOR BAD ACTS AND PRIOR CONVICTIONS?

¶ 29. Council argues that it was reversible error for the trial court to allow the introduction of her prior bad acts and former convictions in violation of the Mississippi Rules of Evidence. She argues that the trial judge failed to make a finding on the record that the admittance of her prior bad acts and former convictions was more probative than prejudicial, and thus she is entitled to a new trial. The State argues that when Council took the stand on her own behalf, seeking to establish justifiable homicide, she “opened herself up” to cross-examination regarding specific instances of prior bad acts and prior convictions when she stated on direct examination, “that’s not me. That’s not me to fight. I never bothered nobody. I never bothered her and started trouble with nobody.” The State cross-examined Council as to the veracity of assertions of her peaceful character and Council replied, “Well, most of the time when things like that happen, somebody always confronted me.” The State then proceeded to question Council regarding a previous assault charge, a 2000 conviction for interfering with a police officer, a 1998 conviction of domestic abuse against a boyfriend, a 1998 vandalism conviction, a 1998 simple assault conviction, a 1999 child abandonment conviction, a 1994 conviction for failure to comply with a police officer, a 2003 escape conviction, and pending child abuse charges. During redirect examination, Council’s attorney further questioned her regarding the 1998 conviction of domestic abuse. Council explained this instance by stating that she struck her boyfriend in the head with a flat-head screwdriver.

¶ 30. The admissibility of evidence and the finding of its relevancy is within the discretion of the trial court. Reynolds v. State, 784 So.2d 929, 932(¶ 7) (Miss.2001). Absent an abuse of that discretion, the trial court’s decision will not be disturbed on appeal. Id. We give a high degree of deference to a trial court on its decision to admit or exclude evidence as long as the decision is made pursuant to the Mississippi Rules of Evidence. Hodges v. State, 912 So.2d 730, 780 (¶118) (Miss.2005). Additionally, “the admission or exclusion of evidence must result in prejudice and harm, if a cause is to be reversed on that account.” Jackson v. State, 594 So.2d 20, 25 (Miss.1992).

¶ 31. Generally, evidence of prior offenses or prior bad acts committed by a defendant, not resulting in conviction, is inadmissible for impeachment purposes. M.R.E. 404(a). However, there are exceptions to this rule. Mississippi Rule of Evidence 404(a)(1) excepts from the general rule barring the admittance of hearsay testimony “evidence of a pertinent trait of [the accused’s] character offered by an accused, or by the prosecution to rebut the same.” A criminal defendant is entitled to offer his good character as evidence of the improbability that he committed the act charged. However, once a defendant takes the stand in order to profess his good character, he or she opens the door, and the prosecution is allowed to respond to the defendant’s assertions of good character by impeaching him or her. Morgan v. State, 741 So.2d 246, 254(¶ 22) (Miss.1999). “When the accused raises the issue of his character, the prosecution may then offer evidence of the accused’s bad character.” Id. “A defendant’s character is put in issue when he states that he has a good character or a good record, or when he otherwise offers evidence of good character.” Id. (citing Rowe v. State, 562 So.2d 121, 123 (Miss.1990) (citing 1 Wharton’s Criminal Evidence § 169 (1985))). Our supreme court has held that “[w]here an accused, on direct examination, seeks to exculpate himself, such testimony is subject to normal impeachment via cross-examination, and this is so though it would bring out that the accused may have committed another crime.” Stewart v. State, 596 So.2d 851, 853 (Miss.1992).

¶ 32. Council, by testifying that she “never fought” or “bothered nobody,” put at issue her self-acclaimed trait of peacefulness. Once Council testified regarding her trait of peacefulness with others, she then opened the door for the prosecutor to question her regarding other instances in which she was either charged or convicted of crimes against others. Although cross-examination of Council brought to light her previous crimes, the prosecutor’s questioning of Council during cross-examination regarding her convictions of interfering with a police officer, domestic abuse, vandalism, simple assault, failure to comply with police officer, and child abandonment and the pending charges for child abuse were within the realm of allowable questions so as to rebut her testimony regarding her character for peacefulness with others. We do not find that the trial court erred in allowing the prosecutor to question Council during cross-examination about these prior convictions and bad acts.

¶ 33. As to the issue of whether the State improperly introduced Council’s 2003 escape conviction, we find no sufficient basis for the trial court to have allowed the State to question Council about this prior conviction. However, we find that the trial court’s decision on this matter was harmless error that did not result in prejudice or harm to Council so as to necessitate a reversal. “An error is harmless only when it is apparent on the face of the record that a fair-minded jury could have arrived at no verdict other than that of guilty.” Bishop v. State, 761 So.2d 894, 898(¶ 12) (Miss.Ct.App.2000). There was plenty of other evidence before the jury, specifically the testimony of the witnesses and the defendant, herself, to support its finding of guilt.

V. WHETHER THE TRIAL COURT ERRED IN DENYING COUNCIL’S MOTION FOR DIRECTED VERDICT, PEREMPTORY INSTRUCTIONS, MOTION FOR JNOV, AND THE ALTERNATIVE MOTION FOR NEW TRIAL?

A. Motions For Directed Verdict, Peremptory Instructions, and JNOV

¶ 34. Council asserts that the State provided insufficient evidence to convict her of murder and takes issue with the trial court for its denial of her motion for a directed verdict, for its passing upon her request for a peremptory instruction that would have asked the jury to return a verdict of not guilty, and for its denial of her motion for a judgment notwithstanding the verdict. In our review of the trial court’s decision, we consider the evidence before the court when the last objection was made. McClain, 625 So.2d at 778. The last challenge cited on appeal was made with Council’s request for her motion for JNOV.

¶ 35. A trial court’s denial of a motion for directed verdict, denial of a request for a peremptory instruction, and denial of a motion for a judgment notwithstanding the verdict all challenge the legal sufficiency of the evidence presented. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the non-movant, consider only the evidence that supports the verdict and give the benefit of all favorable inferences that may be reasonably drawn from the evidence. Id. If the evidence was sufficient to establish guilt beyond a reasonable doubt and support a guilty verdict, the denial of the motions for a directed verdict, for a JNOV and for peremptory instructions is to be affirmed. Shelton v. State, 853 So.2d 1171, 1186(¶ 48) (Miss.2003); Jefferson v. State, 818 So.2d 1099, 1111(¶ 30) (Miss.2002); McClain, 625 So.2d at 778; Brown v. State, 556 So.2d 338, 340 (Miss.1990).

¶ 36. To convict Council of the murder of Latham by deliberate design, the State had to prove beyond a reasonable doubt that (1) she killed Latham (2) without the authority of law (3) with deliberate design to effect the death of Latham or someone else. Miss.Code Ann. § 97-3-19(1)(a) (Rev.2006). At trial, several witnesses testified for the State, including Isaac Harris, Dr. Steven Hayne, Margo Polk, Martha Simmons and Detective Gerald Bordelon. Additionally, Council testified on her own behalf. Polk and Simmons testified to having heard the ensuing argument between Council and Latham moments prior to witnessing Latham fall to the ground, bleeding. Council, herself, testified to having stabbed Latham and admitted that Latham had not yet struck her or brandished a weapon when the stabbing occurred. Harris’ testimony also indicated that Latham was unarmed when Council stabbed her. Dr. Hayne testified regarding Latham’s autopsy and described the depth and number of Latham’s stab wounds. Detective Borderlon testified regarding his arrival on the scene of the murder and the following investigation into Latham’s death.

¶ 37. Following our standard of review, viewing the evidence presented at trial in the light most favorable to the State and giving consideration of all reasonable inferences the jury may have drawn from this evidence, we find the evidence before the jury was sufficient to support a guilty verdict. Therefore, we affirm the lower court’s denial of Council’s motion for directed verdict, request for a peremptory instruction, and motion for a judgment notwithstanding the verdict.

B. Motion For New Trial

¶ 38. Council moved the lower court to grant her a new trial in the alternative, but her motion was denied. She appeals this denial of her motion for new trial, arguing the lower court erred because the verdict was contrary to the overwhelming weight of the evidence before the jury to convict her of murder by deliberate design. Council argued to the lower court that new and material evidence had developed since the trial and that this information was not reasonably discoverable until her motion. Council further argued that discovery violations, the introduction of other crimes, the admittance of hearsay testimony, and Batson violations occurring during the trial warranted the granting of a new trial. The trial court dismissed Council’s argument, finding that these issues had already been ruled upon by the court during trial.

¶ 39. We review a trial court’s denial of a motion for new trial for abuse of discretion. Howell v. State, 860 So.2d 704, 764 (¶ 211) (Miss.2003). We view the evidence in the light most favorable to the verdict and will only grant a new trial in exceptional cases where the evidence preponderates heavily against the verdict. Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005). The verdict will stand unless an unconstitutional injustice would result. Id.

In order to warrant the granting of a new trial on the ground of newly discovered evidence, it must appear that the evidence (1) will probably change the result if a new trial is granted, (2) has been discovered since the trial, (3) could not have been discovered before the trial by the exercise of due diligence, (4) is material to the issue, and (5) is not merely cumulative, or impeaching.

Witherspoon v. State, 767 So.2d 1065, 1067(¶ 6) (Miss.Ct.App.2000). “[T]he proponent of the newly discovered evidence [must] satisfy all of the prerequisites of the above stated rule before a reversal can be granted.” Id. Council simply asserted to the lower court that there existed newly discovered evidence, but failed to provide any substance or introduce any of the evidence. Council provides us with no information regarding the newly found evidence warranting a new trial and we have previously addressed Council’s other issues. We agree with the lower court that a new trial was not warranted in this case and affirm the denial of Council’s motion for a new trial.

VI. WHETHER THE EFFECT OF THE TRIAL COURT’S CUMULATIVE ERRORS PREVENTED COUNCIL FROM RECEIVING A FAIR TRIAL?

¶ 40. Council asks this Court to reverse her conviction based upon the combined effect of all of the alleged errors at her trial. Our supreme court set forth the standard in which we are to review the effect of cumulative errors on an appellant’s right to a fair trial, stating:

upon appellate review of cases in which we find harmless error or any error which is not specifically found to be reversible in and of itself, we shall have the discretion to determine, on a case-by-case basis, as to whether such error or errors, although not reversible when standing alone, may when considered cumulatively require reversal because of the resulting cumulative prejudicial effect.

Byrom v. State, 863 So.2d 836, 847(¶ 13) (Miss.2003). Having found no combined errors causing prejudicial impact so as to warrant reversal, we find this issue is without merit.

¶ 41. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

LEE, P.J., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. KING, P.J. AND IRVING, J., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      . If a striking party voluntarily proffers race-neutral reasons for the use of peremptory strikes before the trial court has made a finding that a prima facie case has been established, the issue of whether a prima facie case had in fact been established becomes moot. Brawner v. State, 872 So.2d 1, 10(¶ 28) n. 1 (Miss.2004) (citing Hernandez v. New York, 500 U.S. 352, 356, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). The purpose of allowing such a practice is for the potential need for further record development. Brawner, 872 So.2d at 10-11 (¶ 28).


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Lee E. DISMUKE, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00146-COA.
    Court of Appeals of Mississippi.
    May 15, 2007.
    Rehearing Denied Nov. 20, 2007.
    Mark Andrew Cliett, West Point, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

STATEMENT OF THE CASE

¶ 1. On December 6, 2005, a jury sitting before the Lee County Circuit Court found Lee Dismuke guilty of grand larceny. After the necessary bifurcated hearing, the circuit court found that Dismuke qualified for enhanced sentencing as a habitual offender pursuant to Section 99-19-83 of the Mississippi Code Annotated (Rev.2002). Accordingly, the circuit court sentenced Dismuke to life imprisonment. Following unsuccessful motions for judgment notwithstanding the verdict or, alternatively, for a new trial, Dismuke appeals and raises the following issues, listed verbatim:

I. THE COURT ERRED IN OVERRULING THE DEFENDANT’S MOTION FOR A J.N.O.V. OR IN THE ALTERNATIVE A NEW TRIAL AS THE JURY’S VERDICT WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE.
II. THE TRIAL COURT ERRED IN NOT GRANTING DEFENSE’S MOTION FOR CONTINUANCE SINCE DEFENDANT WAS UNAVAILABLE FOR TRIAL DUE TO HOSPITALIZATION FOR ATTEMPTED SUICIDE.

Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. On August 17, 2004, Dismuke went to Wal-Mart on West Main Street in Tu-pelo, Mississippi. Dismuke had two children with him; his fourteen year old “stepson,” Brandon Collins, and a very young child whose name and age are not mentioned in the record. In any event, the prosecution presented evidence that supported the following version of events.

¶ 3. Dismuke’s trip to Wal-Mart on August 17th was captured on Wal-Mart’s video surveillance system. Dismuke went to the electronics department, placed a large box in his shopping cart, and made his way to the store exit. By the time Dismuke and his two young companions reached the store exit, Collins was pushing the shopping cart and Dismuke was holding the younger boy’s hand.

¶4. Wal-Mart uses an electronic loss-prevention system involving electronic tags and a detection system near the exit. The computer box in Dismuke’s shopping cart had an electronic tag near its UPC bar code. When a cashier scans that bar code, it deactivates the electronic tag. If anyone attempts to leave Wal-Mart with an activated tag, that tag will set off an alarm when one breaks the plane of the detection system near the exit.

¶ 5. As Dismuke and Collins attempted to leave, they activated the detection system. Edward Dunn, a “greeter” at Wal-Mart, stopped Dismuke. According to Dunn, Dismuke told him that he had attempted to return the computer for a refund, but the “service desk” would not refund his money. Dismuke produced a toy from his shopping cart. Dismuke told Dunn that the younger boy had placed that toy in his cart and that the toy must have set the alarm off.

¶ 6. David Robertson, employed as “loss prevention” with Wal-Mart, approached Dismuke and asked Dismuke why the alarm went off. Dismuke told Robertson that he attempted to return the computer. Robertson asked Dismuke whether he had a receipt. Dismuke did not have a receipt. Robertson told Dismuke to stay with Dunn while he went to the service desk to verify that Dismuke had attempted to return a computer.

¶ 7. As Dismuke continued to explain to Dunn that the toy set the alarm off, Dis-muke motioned to Collins. Collins then pushed the shopping cart and the computer out the exit and into the parking lot. Meanwhile, Robertson spoke with representatives at the service desk. They told Robertson that no one had attempted to return a computer. By the time Robertson walked back to the exit, Dismuke had left the store.

¶ 8. Robertson ran out to the parking lot and saw Collins put the computer in Dis-muke’s black Chevy Suburban. Robertson ran to Dismuke’s driver’s side window and told Dismuke to stop. According to Robertson, Dismuke just looked at him and continued to back out of the parking spot and drove away. Robertson got Dis-muke’s tag number and, with his cell phone, he called 911 from the parking lot. He then went inside and reviewed Wal-Mart’s video surveillance tapes. Besides showing Dismuke’s path through Wal-Mart, the tapes also showed that neither Dismuke nor Collins took the computer through a checkout aisle.

¶ 9. Robertson checked Wal-Mart’s computer system and found that no computers had been sold that day. Robertson then checked Wal-Mart’s stock. When he cross-referenced Wal-Mart’s computer system with Wal-Mart’s actual stock, he found that one computer was missing — a Hewlett-Packard Pavilion Computer with a 17-inch LCD flat monitor valued at approximately $1,200. Officer Jimmy Wiygul of the Tupelo Police Department responded to Robertson’s 911 call. Robertson gave Officer Wiygul the tag number to the black Suburban. Officer Wiygul ran the license plate number and discovered that the number was registered to a vehicle that belonged to Dismuke. Officer Wiygul also watched the videotape and, based on prior contact with Dismuke in the community, Officer Wiygul identified Dismuke. Officer Wiygul then gave his information to Detective Randy Tutor of the Tupelo Police Department.

¶ 10. Detective Tutor obtained Dis-muke’s driver’s license photo from the Mississippi Department of Public Safety and placed that photograph in a lineup with five other photographs. On August 27, 2004, Robertson identified Dismuke from the six-person photograph lineup. “A couple weeks later” authorities found Dismuke at the address listed on his driver’s license.

PROCEDURAL HISTORY

¶ 11. On February 7, 2005, Dismuke was indicted for grand larceny. Dismuke pled not guilty. On November 18, 2005, Dismuke filed a “motion to reinstate bond and release defendant.” According to that motion, the circuit court set Dismuke’s trial date as November 17, 2005. On that date, neither Dismuke nor his attorney appeared for trial. David Daniels, an assistant district attorney, contacted Dis-muke’s attorney and notified him that the circuit court was ready to proceed with trial. Dismuke’s motion reflects that Dis-muke’s attorney, Harry Sumner, was “through no fault of the Court but by his own mistake ... unaware of the trial date.” As such, Sumner had not made Dismuke aware of his trial date. When Sumner reported to the circuit court, the trial judge instructed Sumner that Dis-muke’s trial would proceed at 1:00 p.m. on that date. However, when Dismuke and his attorney reported for trial, the prosecution moved to continue Dismuke’s trial until December 5, 2005. Still, the circuit court sanctioned Sumner, revoked Dis-muke’s bond, and ordered Dismuke held in custody until December 5, 2005. As a result of Dismuke’s motion, the circuit court reinstated Dismuke’s bond and released him until his trial date.

¶ 12. On November 30, 2005, the prosecution filed a motion to amend Dismuke’s indictment. The prosecution sought to allege that Dismuke was a habitual offender pursuant to Section 99-19-81 of the Mississippi Code Annotated (Rev.2000). However, the very next day, the prosecution filed a “notice of intent to amend.” By that document, the prosecution put Dis-muke on notice that if he did not plead guilty by December 2, 2005, the prosecution would file a motion to amend the indictment to allege that Dismuke was a habitual offender pursuant to Section 99-19-83 of the Mississippi Code. True to its word, the prosecution filed that motion to amend the indictment on December 2, 2005.

¶ 13. As mentioned, Dismuke’s trial date was set for December 5, 2005. Before the venire panel arrived, the circuit court heard the prosecution’s motion to amend the indictment. After arguments on the matter, the circuit court granted the prosecution’s motion.

¶ 14. After hearing the prosecution’s motion to amend, the circuit court asked the parties whether they were ready to proceed with trial. Counsel for Dismuke announced that he was not ready to proceed with trial because Dismuke was absent. According to Dismuke’s attorney, Dismuke’s fiancee told him at approximately 7:55 a.m. that Dismuke “was being transported to the North Mississippi Medical Center because he had ingested some substance ... believed to be Tylenol.” Accordingly, Dismuke’s attorneys made an ore tenus motion for continuance. After some discussion, the circuit court found that Dismuke had actual notice of his trial date and had, by his own voluntary actions, attempted to avoid being tried. Accordingly, the circuit court overruled Dis-muke’s motion for a continuance.

¶ 15. The prosecution called four witnesses: Detective Randy Tutor, Edward Dunn, Officer Wiygul, and David Robertson. Dismuke then presented his defense. Dismuke called Brandon Collins and Patricia Williams, Collins’s mother. According to Dismuke’s defense, Collins acted alone. Collins testified that he told Dismuke that he was going to purchase the computer and that he met Dismuke at the store exit. According to Collins, Dismuke was not aware that he had not paid for the computer until after they had left the parking lot. Collins testified that when Dismuke discovered that Collins had not paid for the computer, Dismuke told Collins to get the computer out of his vehicle. Collins claimed he threw the computer out of Dis-muke’s moving vehicle somewhere near Tupelo High School.

¶ 16. The jury found Dismuke guilty of grand larceny. On December 7, 2005, the circuit court found that Dismuke qualified for sentencing as a habitual offender pursuant to Section 99-19-83. Consequently, the circuit court sentenced Dismuke to life imprisonment. Dismuke filed unsuccessful motions for JNOV and for a new trial. Aggrieved, Dismuke appeals.

ANALYSIS

I. THE COURT ERRED IN OVERRULING THE DEFENDANT’S MOTION FOR A J.N.O.V. OR IN THE ALTERNATIVE A NEW TRIAL AS THE JURY’S VERDICT WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 17. Dismuke attacks both the weight and the sufficiency of the evidence. A motion for a JNOV challenges the legal sufficiency of the evidence. Griffin v. State, 883 So.2d 1201(¶ 6) (Miss.Ct.App. 2004). We will only reverse if the evidence of one or more of the elements of the charged offense is such that, considered in the light most favorable to the prosecution, reasonable and fair-minded jurors could only find the accused not guilty. Id. A motion for a new trial, however, is an attempt to vacate the judgment on grounds related to the weight of the evidence. Id. at (¶ 8). We will reverse a circuit court’s decision to overrule a motion for new trial only if the circuit court abused its discretion. Id.

¶ 18. Dismuke claims that “[n]ot from the totality of the evidence did the State, show or prove as a matter of law that [Dismuke] took or stole a computer from Walmart [sic] in Tupelo, Mississippi.” Dismuke asserts that “[t]he evidence in this trial did not establish [that] [Dismuke] was guilty of Grand Larceny.” Dismuke goes on to argue that “[t]he trial record clearly reflects that [Dismuke] did not steal the computer.” Finally, Dismuke “contend[s] that [his] stepson stole the computer.”

¶ 19. We disagree. Testimony indicated that Dismuke claimed that he was attempting to return the computer for a refund and that he had no receipt. Robertson testified that no one had attempted to return a computer at the service desk and that no one attempted to take the computer through the checkout aisles. The video surveillance footage showed Dis-muke place the computer in his shopping cart and it showed Dismuke attempt to leave in proximity with Collins. Dunn testified that Dismuke motioned to Collins as a signal for Collins to take the computer out of the store. Dunn testified that Dis-muke left the store despite Robertson’s instructions to stay in the store. Robertson also testified that he tried to stop Dismuke in the parking lot and that Dis-muke fled. The jury heard ample evidence to convict Dismuke. The circuit court did not err when it refused to grant Dismuke’s motion for JNOV. Likewise, the circuit court did not abuse its discretion when it overruled Dismuke’s motion for new trial.

II. THE TRIAL COURT ERRED IN NOT GRANTING DEFENSE’S MOTION FOR CONTINUANCE SINCE DEFENDANT WAS UNAVAILABLE FOR TRIAL DUE TO HOSPITALIZATION FOR ATTEMPTED SUICIDE.

¶ 20. As mentioned in the procedural history above, Dismuke allegedly attempted to commit suicide by ingesting medicine on the morning of trial. Dis-muke’s attorney made a motion for continuance, but the circuit court overruled that motion. Dismuke claims the circuit court should have granted his motion for a continuance. In effect, Dismuke claims the circuit court should not have tried him in absentia. This issue is a question of law. Jefferson v. State, 807 So.2d 1222(¶ 6) (Miss.2002). We review this issue pursuant to the de novo standard of review. Id.

¶ 21. Dismuke’s counsel verified that Dismuke was aware of his trial date and that Dismuke voluntarily ingested medicine. The circuit court stated that the matter had been previously set for November 17, 2005, that a jury panel assembled that day, that neither Dismuke nor his attorney appeared, and that the circuit court continued the matter until December 5, 2005, when Dismuke again failed to appear — this time due to his alleged attempt at suicide. Dismuke had actual notice of his trial date and he willfully attempted to avoid trial when he allegedly overdosed on medication. Where a defendant is aware of his trial date yet willfully, voluntarily and deliberately acts to avoid trial, the circuit court’s may try the defendant in absentia. Jefferson, 807 So.2d 1222 at (¶ 18).

¶ 22. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT OF CONVICTION OF GRAND LARCENY AND SENTENCE AS A HABITUAL OFFENDER TO LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ„ CONCUR.

      . Brandon Collins testified that he was Dis-muke's stepson and that the second young child was his little brother. However, Patricia Williams, Collins's mother, testified that she was Dismuke's girlfriend or fiancee, so Dismuke would not have been Collins’s stepfather. The record does not indicate whether Dismuke is the father of Collins’s little brother.

      . During arguments on the prosecution's motion to amend the indictment, the prosecution stated that it had given Dismuke notice "at least two weeks” prior to trial that it would move to amend the indictment to allege habitual offender status if Dismuke did not accept the prosecution's plea offer.

      . During arguments on Dismuke’s motion for continuance, Dismuke’s attorneys did not present any form of affirmative proof that, on or immediately prior to the date of trial, Dis-muke ingested Tylenol or any other substance. Likewise, the record does not contain any affirmative proof that Dismuke was actually hospitalized or under any form of medical care on that date. The record merely contains statements during arguments on Dis-muke’s motion to amend. Those statements reflect that Dismuke’s fiancee told Dismuke's attorneys that Dismuke attempted to overdose on Tylenol because "he was scared of going to trial and couldn’t face it.” Dismuke’s attorneys stated that they could obtain proof that Dismuke was hospitalized, but the circuit court found that "it's a little late for that” because the circuit court could “not conduct its business if every time a defendant is set for trial he voluntarily ingests some substance, or claims to, and runs to the emergency room.”


text:
    James MOFFETT, Appellant v. HOWARD INDUSTRIES, INC., Appellee.
    No. 2006-WC-01313-COA.
    Court of Appeals of Mississippi.
    May 29, 2007.
    Rehearing Denied Nov. 27, 2007.

      Leonard Brown Melvin, Hattiesburg, attorney for appellant.
    Douglas S. Boone, Laurel, attorney for appellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

STATEMENT OF THE CASE

¶ 1. This worker’s compensation case began when James Moffett suffered an admittedly compensable injury to his back while working for Howard Industries, Inc. in August 2001. After conservative treatment and following evaluations by several physicians, one physician suggested surgery. To determine whether the proposed surgery was reasonable and necessary, the administrative judge ordered an independent medical evaluation (IME). Although the result of the IME was an opinion that surgery was not needed, no order was issued as to whether the proposed surgery was reasonable and necessary. Notwithstanding the absence of an order, Moffett proceeded to have the surgery. The procedure was later determined not to have been reasonable and necessary by the administrative judge. This decision was affirmed by the Full Commission and the Circuit Court of Jones County. Moffett now appeals and raises the following issues:

I. WHETHER THE SURGERY PERFORMED BY DR. MOLLESTON ON JANUARY 23, 2003, WAS A REASONABLE AND NECESSARY MEDICAL PROCEDURE ARISING OUT OF THE COM-PENSABLE INJURY SUFFERED BY MOFFETT ON AUGUST 3, 2001.
II. WHETHER THE COMMISSION ERRED IN HOLDING THAT MOFFETT DOES NOT SUFFER FROM PERMANENT PARTIAL DISABILITY AND WAS ‘ NOT ENTITLED TO TEMPORARY TOTAL DISABILITY BENEFITS.
III. WHETHER THE FINDINGS OF THE COMMISSION WERE SUPPORTED BY SUBSTANTIAL EVIDENCE.

Finding no error, we affirm.

STATEMENT OF THE FACTS

¶ 2. Moffett began working for Howard in 1993. After briefly filling other positions within Howard, Moffett began working as a core winder. He injured his back in 1996 and was initially treated with medication, physical therapy and rest. This treatment continued until February 1998, when Dr. Michael Fromke, Moffett’s treating physician, stated:

The question, of course, would be whether or not these findings are related to an on [-]the[-]job injury. They are consistent with lumbar spondylosis, which is a chronic degenerative, ongoing process and was pre-existing prior to the injury. It is the pain that was correlated with the injury and how that relates to the radiographic findings according to natural pathophysiology is more of an inflammatory response with chemical mediators of inflamation producing pain due to this chronic and degenerative process that’s occurring at L5, and to a mild degree, at L2. Surgery is really not an option here since the potential outcome is debatable.

Moffett continued to work as a core winder until August 3, 2001, when he suffered another on-the-job injury while attempting to wind a 1,000-pound core. Moffett was initially seen by an emergency room doctor the day of his injury who took him off work for one week and referred him to Dr. Thomas H. Blake, Jr. at the Laurel Bone and Joint Clinic. Dr. Blake examined Moffett on August 17, 2001. During his examination of Moffett, Dr. Blake made note of a MRI scan done on August 8, 2001, which showed “minimal generalized disc bulging at L4-5 with minimal right posterolateral disc protrusion encroaching upon the neural foramen at L5-S1.” Dr. Blake referred Moffett to Dr. Steven D. Nowicki, prescribed Moffett medications, and ordered that he stay off work until his appointment with Dr. Nowicki on August 28, 2001. Dr. Nowicki noted that Moffett’s MRI showed “some mild disc bulging toward the right at 4-5” and added “this is nothing that I think is significantly encroaching upon any of the neural elements.” Moffett requested a second opinion, but Dr. Nowicki would not refer him further.

¶ 3. Moffett then saw his family doctor who referred him to Dr. Michael Molle-ston. Dr. Molleston first saw Moffett on October 29, 2001, and ordered a MRI scan of the cervical spine and lumbar discogram because he “thought that surgery was appropriate with regards to treating his disc rupture at L5-S1; and that perhaps a fusion at L4-5 should be accomplished, as well.” Prior to the discogram, Howard sent Moffett to Dr. Lon Alexander for another evaluation. Based on his examination, conducted on March 20, 2002, and review of the lumbar spine and cervical spine MRIs, Dr. Alexander concluded that surgery was not needed. Additionally, Howard was ordered to provide Moffett with an independent medical evaluation by Dr. Robert R. Smith. Dr. Smith examined Moffett on October 1, 2002, and concluded that “[Moffett] does not need any surgery. He does not need any further procedures.” Moffett attempted to return to work at Howard as a sorter, a job in which he could sit or stand and sort miscellaneous screws and bolts collected throughout the Howard facility, but after two hours stated he could not continue.

¶ 4. A discogram of each of Moffett’s vertebrae was completed on November 5, 2002, followed by a CT scan. Subsequently, Dr. Molleston performed a lumbar lami-nectomy, discectomy and interbody fusion at L4-5 and L5-S1 in January 2003. This was eventually followed by a second evaluation by Dr. Alexander.

PROCEDURAL HISTORY

¶ 5. Moffett filed a petition to controvert on November 19, 2001, claiming injury to his back, legs, hips, left hand and wrist. In its answer filed January 8, 2002, Howard admitted that Moffett’s injury occurred during the course of his employment. However, a dispute arose regarding the reasonableness and necessity of surgery. Following Dr. Molleston’s recommendation for surgery, Howard filed its motion for adjudication as to whether the surgery was reasonable and necessary, or, in the alternative, for an independent medical exam of Moffett to determine such. Subsequently, on October 8, 2002, the administrative judge ordered an independent medical evaluation to be conducted by Dr. Smith. Following a hearing held on June 1, 2004, the administrative judge issued an order on March 30, 2005, which found that Moffett suffered a compensable, work-related injury to his lower back on August 3, 2001; his average weekly wage on that date was $459.32; there was no evidence presented to support his claim of injury to his left hand and wrist; the neck problems of which Moffett complained were not causally related to his injury; the surgery performed by Dr. Molleston was not required by the nature of Moffett’s work-related injury; Moffett was temporarily totally disabled from August 3, 2001, until Dr. Smith’s evaluation of October 1, 2002, and again from January 23, 2003, until January 24, 2004, while recovering from surgery; the surgery was not an independent intervening cause so as to cut off Moffett’s right to permanent disability benefits; and that as a result of the injury, Moffett suffered a permanent partial impairment or loss of wage-earning capacity of fifty percent of the wage he was earning at Howard. The administrative judge then ordered temporary total disability benefits of $306.21 per week from August 3, 2001, until October 1, 2002, and again from January 23, 2003, until January 24, 2004; permanent partial disability benefits of $153.11 per week for 450 weeks beginning January 24, 2004; that Howard pay any penalties and interest due from unpaid benefits; and provided medical services and supplies needed as a result of Moffett’s injury, excluding the surgery performed by Dr. Molleston.

¶ 6. Howard then filed its petition for review before the Full Commission on April 12, 2005, followed by Moffett’s eross-petition for review before the Full Commission. After a hearing by the Commission, it amended the March 30, 2005 order of the administrative judge. In the Commission’s order, it found the administrative judge erred in awarding temporary total benefits from January 23, 2003, until January 24, 2004, as it opined that “[wjhen a medical procedure is not found to be the reasonable and necessary result of a workers’ compensation injury, the claimant should not be entitled to temporary total disability benefits following that procedure.” Additionally, the Commission held that an award of permanent partial disability benefits was also erroneous. In holding as such, the Commission found that, pursuant to Dr. Smith’s opinion, Moffett could have returned to work in the fall of 2002, and despite Howard’s offer of reemployment, Moffett declined employment and elected to have the surgery without the consent or knowledge of Howard or the Commission. Finally, the Commission ratified the remaining provisions of the administrative judge’s order.

¶ 7. Moffett then appealed the Commission’s order to the Circuit Court of Jones County, Second Judicial District. The circuit court summarily affirmed the Commission’s order as it found that it was supported by substantial evidence and properly applied the law. From this order, Moffett now appeals to this Court.

STANDARD OF REVIEW

¶ 8. On appeal, this Court may only review an administrative agency’s order to determine if it “1. Was supported by substantial evidence; or 2. Was arbitrary or capricious; or 3. Was beyond the power of the lower authority to make; or 4. Violated some statutory or constitutional right of the complaining party.” URCCC 5.03. “This Court will reverse the Commission’s order only if it finds that order clearly erroneous and contrary to the overwhelming weight of the evidence.” Hardaway Co. v. Bradley, 887 So.2d 793(¶ 11) (Miss.2004) (quoting Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988)). “A finding is clearly erroneous when, although there is some slight evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made by the Commission in its findings of fact and in its application of the Act.” Hardaway, 887 So.2d at (¶ 11) (quoting Weatherspoon v. Croft Metals, Inc., 853 So.2d 776, 780 (Miss.2003)). Additionally, “the Commission is also the ultimate judge of the credibility of witnesses.” Barber Seafood, Inc. v. Smith, 911 So.2d 454(¶ 27) (Miss.2005). “Further, neither this Court nor the Mississippi Supreme Court is empowered to determine where the preponderance of the evidence lies when the evidence is conflicting. Instead, this Court must affirm the decision of the Commission where substantial credible evidence supports the Commission’s order.” Id. (citations omitted).

ANALYSIS

1. WHETHER THE SURGERY PERFORMED BY DR. MOLLESTON ON JANUARY 23, 2003, WAS A REASONABLE AND NECESSARY MEDICAL PROCEDURE ARISING OUT OF THE COMPENSABLE INJURY SUFFERED BY MOFFETT ON AUGUST 3, 2001.

III. WHETHER THE FINDINGS OF THE COMMISSION WERE SUPPORTED BY SUBSTANTIAL EVIDENCE.

¶ 9. Moffett argues that the Commission’s finding that the surgery was not reasonable and necessary was clearly erroneous and not supported by substantial evidence. He cites Hardaway Co. v. Bradley, 881 So.2d 241(¶ 22) (Miss.Ct.App.2004) (citing Spann v. Wal-mart Stores, Inc., 700 So.2d 308 (¶¶ 31-32) (Miss.1997)) in support of his claim that “as long as a particular treatment is deemed reasonable and necessary by a competent treating physician, the employer is obligated to furnish the treatment.” However, the above quote is not a correct statement of the law, as noted in the supreme court’s reversal of Hardaway. See Hardaway Co. v. Bradley, 887 So.2d 793 (Miss.2004) (¶ 18). In Hardaway, the claimant was treated by one physician who recommended surgery and evaluated by two other physicians who did not recommend surgery. Hardaway, 887 So.2d at (¶ 14). The supreme court stated, “here, with the testimony of two physicians, who conducted independent medical examinations, the Commission’s decision was supported by more than a scintilla of evidence. Therefore, ‘substantial evidence’ supporting the Commission’s decision was present.” Id. (citing Hardaway, 881 So.2d at (¶ 28) (Griffis, J., dissenting)).

¶ 10. Additionally, in Spann, the treating physician felt surgery was needed, a second physician opined there was a 50/50 chance surgery would help and a third doctor found that Spann did not need surgery. Id. at (¶¶ 8-10). However, the third doctor’s opinion was found to be not credible. Id. at (¶ 9). In concluding that there was substantial evidence that surgery would help Spann reach maximum medical recovery, the supreme court noted that the only credible evidence before the Commission concerning the surgery was testimony from one physician claiming surgery would help and another claiming that there was a 50/50 chance it would help. Id. at (¶¶ 15-16). The supreme court explained that, “Spann was not given the surgery simply because his treating physician prescribed it, but because the Commission was not presented with any other credible evidence to the contrary.” Hardaway, 887 So.2d at (¶ 18).

¶ 11. In the case sub judice, the Commission was presented with numerous reports and deposition testimony from various medical professionals, most notably, Drs. Nowicki, Molleston, Alexander and Smith. Dr. Nowicki, a board-certified or-thopaedic surgeon, after reviewing five x-rays of the lumbosacral spine and an MRI scan, noted that disc cases were well preserved and bone density appeared normal. Additionally, Dr. Nowicki noticed some mild disc bulging at the L4-5 level, but saw nothing significantly encroaching on any of the neural elements. However, Dr. Nowicki did not explicitly give an opinion for or against surgery.

¶ 12. Dr. Molleston, a board-certified neurosurgeon, was the next physician to see Moffett. Dr. Molleston first saw Mof-fett in October 2001. After reviewing the lumbosacral spine MRI, Dr. Molleston noted that it showed disc herniation at L5-S1 and disc bulging at L4-5. After a physical examination, Dr. Molleston further noted that straight leg raising was positive for pain at ten degrees, lumbar spasms were present and cervical spasms were present. Dr. Molleston recommended an MRI of Moffett’s cervical spine and a lumbar dis-cogram. Molleston also felt surgery was appropriate.

¶ 13. Dr. Alexander, a board-certified neurosurgeon, examined Moffett for the first time in March 2002, after the disco-gram was recommended, but Dr. Alexander believed a myelogram, rather than a discogram, was recommended. After examining Moffett, Dr. Alexander noted no spasms in Moffett’s back and full range of motion. Also, Dr. Alexander rated Mof-fett’s strength in all muscle groups tested as 5 out of 5. He noted that the MRIs showed a modest bulge at L5-S1, but did not consider it worthy of surgery. Finally, Dr. Alexander stated that he did not totally disagree with Dr. Molleston’s suggestion to conduct a myeolgram, but added that unless it showed something the MRIs did not, surgery would not be appropriate.

¶ 14. Moffett was next examined by Dr. Smith, a board-certified neurosurgeon who passed away in 2003. Following his examination and review, Dr. Smith concluded as follows:

Minor disc bulge, L5-S1 with degenerative changes in the cervical spine. His clinical findings are functional and nonanatomical. His MRI shows about what would be expected of any forty-seven year old man, especially one that weighs 260 pounds.
He does not need any surgery. He does not need any further procedures. I rate his impairment at 0. He has no significant restrictions, could return to light productive work. I would start him in a work hardening program or light work progressing to regular work.

As it turned out, Dr. Alexander knew Dr. Smith very well as the two worked together for many years. As a result, during his deposition, Dr. Alexander was asked to review Dr. Smith’s report. Speaking to Dr. Smith’s credibility, Dr. Alexander testified that Dr. Smith had no peer in the medical community. He noted that Dr. Smith conducted a straight-leg raising test in which Moffett expressed pain at five degrees. However, in his report Dr. Smith stated “flexion did not relieve the pain produced.” Dr. Alexander explained that the pain experienced during the straight-leg raising test should be extinguished when the patient bends his knees, and Dr. Smith’s statement showed that this was not the case. Additionally, Dr. Smith explained, “it should be noted that the patient walked without restriction, which requires more than five degrees of leg-raising flexion.” These findings are obviously inconsistent with those reached by Dr. Molleston.

¶ 15. The discogram was performed in November 2002. It indicated pain at each vertebrae. Specifically, Moffett experienced pain rated as 5-6 out of 10 at L5-S1 and 4-6 out of 10 at L4-5. The remaining three vertebrae were rated as 7-8 on a scale of 10. In expressing his doubt in the usefulness of the results, Dr. Alexander stated:

Discography has probative value if one finds one disc or two discs perhaps that are the generators of pain; and then that can be, as I think I called it earlier, the icing on the cake if that corresponds with an MRI finding at that same level and if that corresponds with a neurologic examination at that same level and if all those things — if all — if Matthew, Mark, Luke and John all agree on the same topic, then the discography is pertinent. What was reported in this disco-gram was that every single disc in the lumbar spine caused as extreme amount of pain. As a matter of fact, the L5-S1 level itself, which was the level bulging, didn’t seem to cause as much pain as even the L2/3 level where pain was graded as seven to eight on a grade of ten. I personally, even being someone that doesn’t totally reject discography, would use this discogram as a rather ironclad reason not to operate on someone. If they hurt at every single disc of the back, then is one to fuse every disc of the back? So I think you have to look at this discogram as a procedural hole. And looking at this discogram, if I had been presented with this data, I would have told this patient yet again that no surgery would avail him any relief.

Dr. Alexander further stated, “Based upon the criteria that I use, I would not have recommended those surgeries. Would have predicted if those surgeries were performed, that they would afford no relief, and therefore do not find them necessary.”

¶ 16. During Dr. Alexander’s second examination of Moffett on August 5, 2003, he noted that Moffett had full range of motion about his neck and no appreciable lumbar spasm. Dr. Alexander also stated that Moffett was overly histrionic during the exam, and was uncooperative during the strength test of the lower extremities. Additionally, he stated that Moffett exhibited numerous Waddell’s signs, which are indications that a patient is being less than forthcoming concerning the extent of his injury.

¶ 17. During Moffett’s deposition on June 20, 2003, he stated that nothing had changed and he was about the same as he was before the operation. However, during the June 2004 hearing, he stated that he was somewhat better. Moffett testified that the numbness in his right leg was lessened, though still present, and he was still having pain, though not as much. Despite the improvement, Moffett testified that he still could not work as of that day.

¶ 18. Therefore, based upon the reports and testimony of Drs. Nowicki, Alexander and Smith, we cannot say that the Commission’s decision lacked substantial evidence or was clearly erroneous. As such, this issue is without merit.

¶ 19. Moffett further argues that his surgery should be deemed inherently reasonable and necessary because Dr. Molle-ston testified that he discovered disc herniation during the surgery. In support, Moffett cites Marshall Durbin Cos. v. Warren, 683 So.2d 1006 (Miss.1994) for the proposition that:

When there exists a conflict between expert scientific testimony and fact testimony, the trier of fact must ascertain the relative weight of each. As a universal practice, proof of facts weighs more heavily than contrary opinions thereto. Opinion evidence has little probative value when placed in strife with physical facts and, consequently, opinion evidence should not be viewed as enough to establish a conflict in the evidence.

Id. at 1010. However, Drs. Nowicki, Smith and Alexander noticed the bulge in Moffett’s MRI of his lumbar spine and were of the opinion that, in the words of Dr. Alexander, “no surgery would avail him any relief.” Additionally, Dr. Alexander reviewed the results of the discogram and testified that they buttressed the decision not to have surgery. The fact that Dr. Molleston found herniation does not negate the other physicians’ opinions or, under the facts presented, prove, in and of itself, that the surgery was reasonable and necessary.

II. WHETHER THE COMMISSION ERRED IN HOLDING THAT MOF-FETT DOES NOT SUFFER FROM PERMANENT PARTIAL DISABILITY AND WAS NOT ENTITLED TO TEMPORARY TOTAL DISABILITY BENEFITS.

¶20. Moffett next argues that if this Court determined that the Commission erred in finding that the surgery performed by Dr. Molleston was not reasonable and necessary, the administrative judge’s finding of permanent partial disability should be affirmed. Having determined that the Commission did not err in finding that Moffett’s surgery was not reasonable and necessary, this issue is moot.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR.

      . The untimeliness of the administrative judge's order is attributable to the record being left open so a second deposition of Dr. Alexander could be taken and submitted into evidence.

      . As Moffett's last issue concerns the standard of review this Court must employ in addressing his remaining issues, it will be considered simultaneously with his first issue.


author: LEE, P.J.,

text:
    Timothy Edward MYERS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2006-CP-00995-COA.
    Court of Appeals of Mississippi.
    June 26, 2007.
    Rehearing Denied Nov. 20, 2007.

      Timothy Edward Myers (Pro Se), attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On August 27, 1996, Timothy Edward Myers pled guilty in the Jackson County Circuit Court to one count of kidnapping. On February 26, 1997, Myers filed a motion to withdraw his guilty plea and/or set aside conviction. On March 11, 1997, the trial court entered an order to correct an error in Myers’s guilty plea. Myers was also sentenced at this time as a habitual offender to serve thirty years in the custody of the Mississippi Department of Corrections. On January 27, 1999, Myers filed a motion for post-conviction relief, which was subsequently denied. However, Myers appealed to this Court and we reversed and remanded for a new sentencing hearing. See Myers v. State, 770 So.2d 542 (Miss.Ct.App.2000). Ultimately, Myers was sentenced to serve twenty-five years.

¶ 2. Myers filed another motion for post-conviction relief on August 4, 2005. On November 29, 2005, the trial court entered an order dismissing Myers’s motion for relief finding that the issues raised in Myers’s motion had already been addressed in the January 27, 1999 motion, thus the motion was a successive writ pursuant to Mississippi Code Annotated Section 99-39-23(6) (Supp.2006). The trial court also found that the motion was filed outside the three year time limit pursuant to Section 99-39-5(2) (Supp.2006) and was time barred. Myers now appeals to this Court asserting that his trial counsel was ineffective and his right to a speedy trial was violated.

STANDARD OF REVIEW

¶ 3. A trial court’s denial of post-conviction relief 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). However, when issues of law are raised, the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

DISCUSSION

¶ 4. In this appeal, Myers argues that his trial counsel was ineffective and he was denied his right to a speedy trial. Since Myers has already argued the effectiveness of his trial counsel before this Court in his January 27, 1999 motion, Myers has changed his argument to state that his trial counsel was ineffective by failing to demand a speedy trial.

¶ 5. As this is Myers’s second motion for post-conviction relief, we find this motion for relief constitutes a successive writ pursuant to Section 99-39-23(6) and is barred. Regardless of the successive writ bar, a guilty plea waives the right to a speedy trial. Jones v. State, 747 So.2d 249, 251 (¶ 7) (Miss.1999). This issue is barred and Myers “may not recast the issue under the guise of ineffective assistance of counsel.” Hughes v. State, 892 So.2d 203, 210 (¶ 14) (Miss.2004). We find no merit to Myers’s appeal.

¶ 6. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ROBERTS AND CARLTON, JJ„ CONCUR. ISHEE,J., NOT PARTICIPATING.