author: LEE, J., McMILLIN, C.J., IRVING, J.,

text:
    ACCU-FAB & CONSTRUCTION, INC. and Roy Anderson Corporation, Appellants, v. Richard G. LADNER, Deceased, By and Through Beverly LADNER, his Widow, as his Personal Representative, Appellee, and Employers Insurance of Wausau, Intervenor.
    No. 96-CA-00692-COA.
    Court of Appeals of Mississippi.
    March 14, 2000.

      Raymond Brown, Pascagoula, Kelly Ses-soms, Michael Ulmer, Frank Wood, Jackson, James 0. Dukes, Hattiesburg, for Appellants.
    Paul Minor, Mark Lumpkin, Biloxi, for Appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

LEE, J.,

for the Court:

¶ 1. Each of the motions for rehearing filed in this matter are granted. The original opinion issued in this case is withdrawn, and the following opinion is substituted as the opinion of this Court.

¶ 2. A Jackson County jury awarded damages for the death of Richard Ladner to his family against Roy Anderson Corporation (Anderson) and Accu-Fab and Construction, Inc. (Accu-Fab). Anderson and Accu-Fab appealed that jury verdict based on several issues and subsequently filed a motion for rehearing. Ladner has filed a motion for rehearing relative to this Court’s ruling regarding whether Bracken should have been considered a “party” for apportionment of damages. This Court finds no error in the trial court’s decision not to include Bracken in apportioning fault under Miss.Code Ann. § 85-5-7 (Rev. 1991), as well as the other issues presented in the motions for rehearing filed by Anderson and Accu-Fab; therefore, we affirm these matters.

FACTS

¶ 3. In November 1993, Boomtown, Inc., a casino operator, had employed Anderson as general contractor to construct the Boomtown Casino in Biloxi, Mississippi. Anderson subcontracted a good portion of the work. Among the subcontractors were Accu-Fab, a metal fabricator, and Bracken Construction (“Bracken”), which employed Ladner as an iron worker.

¶ 4. On Monday morning, March 7, 1994, while working on the roof of the Boom-town Casino, Ladner fell through a hole cut in the roof and subsequently died of the injuries received. Ladner’s family filed suit against Anderson, Accu-Fab, and Boomtown, Inc., seeking compensation for Ladner’s death. Boomtown Inc., dismissed at the start of the trial, is not a party to this appeal.

¶ 5. The Boomtown Casino was being constructed on a barge that was on a navigable waterway. As a result, injuries sustained by construction workers were covered under the Longshore and Harbor Workers’ Compensation Act, codified as 33 U.S.C. § 901, a federally sponsored workers’ compensation program covering some maritime workers. Because this coverage was provided by the employer and is an exclusive federal remedy, Bracken, as Lad-ner’s employer, was not a party to this action. 33 U.S.C. § 905. Both Anderson and Accu-Fab requested jury instructions to include Bracken in the apportionment of liability, pursuant to Miss.Code Ann. § 85-5-7 (1972). The trial judge denied the requested instructions citing McBride v. Chevron U.S.A., 673 So.2d 372 (Miss.1996).

DISCUSSION

I. ERRED IN EXCLUDING BRACKEN CONSTRUCTION COMPANY FROM APPORTIONMENT OF FAULT.

¶ 6. Bracken, as required by 33 U.S.C. § 902, maintained Longshore and Harbor Workers’ Compensation coverage for its employees engaged in covered maritime work. Benefits were paid to the Ladner family under the Longshore and Harbor Workers’ Compensation Act. These benefits were the exclusive remedy available to Ladner against Bracken. Because Bracken was not a party to this action, the trial court refused to allow the jury to consider, in the case sub judice, the extent of fault, if any, of Bracken in causing Ladner’s injuries.

¶ 7. Mississippi Code Annotated § 85-5-7 (1972) provides for the allocation of fault and contribution among joint tort-feasors. Section 85-5-7 (7) places the responsibility upon the triers of fact to “determine the percentage of fault of each party alleged to be at fault.” The trial court, based upon McBride, interpreted the term “party” to mean an actual party to the lawsuit. McBride, 673 So.2d at 372. Anderson and Accu-Fab argue that the trial court was in error and that pursuant to the Mississippi Supreme Court’s holding in Estate of Hunter v. General Motors Corporation, 729 So.2d 1264 (¶¶ 29-38) (Miss.1999), the trial court was required to include Bracken as a party for the purpose of the jury apportioning damages.

¶ 8. In the recently decided case of Estate of Hunter, the Mississippi Supreme Court considered the issue of the ramifications of the term “party” and specifically held that any party alleged to be at fault, whether or not made a defendant to the suit, may have fault apportioned against him under Miss.Code Ann. § 85-5-7. Id. Due to the legal position of Bracken in the case at bar, this Court finds Estate of Hunter, is distinguishable from the case at bar, and therefore, inapplicable. Therefore, we come to the ultimate conclusion reached by the trial judge that Bracken is not a “party” for the purpose of apportionment.

¶ 9. In Estate of Hunter, the plaintiffs urged that a settling defendant should not be included in the apportionment of damages. Id. at (¶ 29). The Mississippi Supreme Court held that the jury could consider the fault of a settling truck driver and his employer in apportioning fault under comparative negligence principles. Id. at (¶ 44). The primary distinction in Hunter is the fact that there was no law that regulated this settlement, and if the plaintiffs had not reached a previous settlement with the truck driver and his employer, they would not have been precluded from pursuing a lawsuit for negligence. In the case at bar, the representative for the estate of Ladner was not vested with the discretion to elect to pursue any other course for compensation other than workers’ compensation benefits. We first approach this distinction between the factual scenarios in the case at bar and the one in Hunter by looking to the dissent in this opinion for the definition of the word “party,” and although this opinion is not authoritative, we are inclined to agree with the definition for the term.

¶ 10. The dissenters in Hunter, rely on the definition supplied within Black’s Law Dictionary. Id. at (¶ 65).

A “party” to an action is a person whose name is designated on record as the plaintiff or defendant.... “Party” is a technical word having a precise meaning in legal parlance; it refers to those by or against whom a legal suit is brought, whether in law or in equity, the party plaintiff or defendant, whether composed of one or more individuals and whether natural or legal persons; all others who may be affected by the suit, indirectly or consequently, are person interested but not parties.

Black’s Law Dictionary 1122 (6th ed.1990) (citations omitted). With the acceptance of this definition of “party,” on its face it appears that Bracken is not to be considered a party; therefore, the jury was not to consider Bracken in allocating damages. We now further elaborate on the factors in the case at bar that prevent the jury from considering Bracken when allocating fault relative to Anderson and Accu-Fab who were named as defendants in this civil action.

¶ 11. Bracken was in the unique position of having no fault pursuant to the Long-shore and Harbor Workers’ Compensation Act, codified as 33 U.S.C. § 901. This outcome was predetermined by the mere fact that Ladner had accepted employment with Bracken. Since Ladner was an employee of Bracken, it had been agreed that any injuries suffered by Ladner would be compensated under workers’ compensation and not an action for negligence. Due to workers’ compensation law, Bracken could not have been engaged in this civil action by the representative for the estate of Ladner. Additionally, we note that not only is Bracken immune, but since it paid workers’ compensation benefits, it would also have a subrogation claim against the monetary damages awarded to Ladner. Since Bracken is limited in liability, to allocate a percentage of responsibility to Bracken is a deception on the jury. If the jury apportioned a percentage of fault to Bracken they would presume that Bracken would pay their percentage relative to the monetary damages award, and contrary to this presumption, no further compensation can be acquired from Bracken. In turn, Ladner is denied the compensation he deserves. It is wholly inequitable for the plaintiff to suffer the risk of a partial or complete reduction in recovery. It is improper to allow the jury to have the right to apportion damages to Bracken when the result is to limit Ladner’s damages due to the policies of workers’ compensation law which forbids additional benefits beyond those statutorily awarded, and at the same time any fault apportioned amongst the other parties returns to Bracken as the employer due to its right of subrogation. Additionally, Anderson and Accu-Fab had the opportunity to expose any theory of fault relative to Bracken at the time of the trial. Anderson and Accu-fab were given the opportunity to cross-examine employees for Bracken relative to occurrences prior to the death of Ladner. The jury had the benefit of this information and found that Ladner bore five percent of the responsibility in the events that resulted in his death. As employees, Ladner and his co-workers were the alter-ego of Bracken. Consequently, since the jury had the benefit of the testimony of the employees for Bracken, there was a constructive apportionment when the jury found five percent liability on the part of Ladner inasmuch as Bracken can only act through its agents and employees. It is for the aforementioned reasons that Anderson and Aecu-Fab should not be allowed to benefit from the relationship that existed between Lad-ner and Bracken and deny Ladner the compensation that has been awarded by the jury. Therefore, we find the decision of the trial court to be proper and this issue without merit. Having resolved this issue, the following additional errors were assigned by Anderson:

MISSISSIPPI PROVIDES TO CONTRACTORS, WHOSE SUBCONTRACTORS CARRY WORKERS’ COMPENSATION INSURANCE, IMMUNITY FROM LIABILITY FOR A STATE LAW WRONGFUL DEATH NEGLIGENCE CLAIM BROUGHT BY A SUBCONTRACTOR’S EMPLOYEE’S SURVIVORS. FEDERAL LAW (THE LONGSHORE AND HARBOR WORKERS’ COMPENSATION ACT (LHWCA)) DOES NOT. WHERE THE SURVIVORS OF A LONGSHOREMAN/CONSTRUCTION WORKER, WHO IS COVERED BY BOTH THE MISSISSIPPI WORKERS’ COMPENSATION ACT AND THE LHWCA, ELECT TO RECEIVE LHWCA BENEFITS, IS THE CONTRACTOR STRIPPED OF ITS IMMUNITY UNDER STATE LAW FROM STATE LAW CLAIMS?
WHERE A CONSTRUCTION WORKER FELL THROUGH A SIX-FOOT-WIDE HOLE IN PLAIN DAYLIGHT, AND HIS SURVIVORS BROUGHT A WRONGFUL DEATH CIVIL ACTION FOR NEGLIGENCE, DID THE TRIAL COURT REVERSIBLY ERR IN EXCLUDING EVIDENCE OF A URINE TEST WHICH WAS POSITIVE FOR MARIJUANA AT THE TIME OF HIS FALL AND OF A MARIJUANA CIGARETTE FOUND IN HIS POCKET AFTER THE ACCIDENT, REGARDLESS OF WHETHER CONSENT WAS OBTAINED TO TAKE THE URINE SAMPLE?
WHETHER OSHA REGULATIONS ARE ADMISSIBLE AS EVIDENCE OF NEGLIGENCE?
WHERE A SUBCONTRACTOR BEGINS PERFORMING PRIOR TO THE EXECUTION OF A STANDARD GENERAL CONTRACTOR-SUBCONTRACTOR CONTRACT, WHICH INCLUDES AN INDEMNITY PROVISION, IS ADDITIONAL CONSIDERATION REQUIRED AT THE TIME OF EXECUTION OF THE STANDARD CONTRACT?
WHERE A SUBCONTRACTOR KNOWS OR SHOULD KNOW OF THE DANGER, DOES A GENERAL CONTRACTOR HAVE A DUTY TO WARN A SUBCONTRACTOR WORKING AROUND A SIX-FOOT WIDE HOLE IN THE ROOF ABOUT THE DANGER OF FALLING INTO THE HOLE?

¶ 12. In Accu-fab’s motion for rehearing, it has assigned two errors which essentially were not covered in the errors raised by Anderson in its motion for rehearing; however, Accu-fab did not address the Mississippi Workers’ Compensation Act immunity issue and opposes those arguments asserted by Anderson on the indemnity issue. We will discuss whether the apportionment of five percent fault relative to Ladner’s comparative negligence regarding his wrongful death was against the overwhelming weight of the evidence next, and will address the issue of the exclusion of Ladner’s prior conviction when we address the issue of the exclusion of Ladner’s drug test and other evidence of drugs.

II. WHETHER THE APPORTIONMENT OF FIVE PERCENT FAULT RELATIVE TO LADNER’S COMPARATIVE NEGLIGENCE REGARDING HIS WRONGFUL DEATH WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 13. Accu-Fab argues that the jury apportioning only five percent of the liability to Ladner for his resulting injury and death was against the weight of the evidence and should have been modified by the trial court. Although after the trial concluded, Accu-fab filed a motion for JNOV, or in the alternative, motion for a new trial, or in the alternative motion for remittitur, in Accu-fab’s motion for rehearing it only argues the weight of the evidence. Therefore, this Court will only address the weight of the evidence presented at the trial as it pertains to Ladner’s comparative negligence.

¶ 14. In Herrington v. Spell, 692 So.2d 93, 103-04 (Miss.1997), the Mississippi Supreme Court stated, when an appellate court adjudicates whether a jury verdict is against the overwhelming weight of the evidence, the court must accept as true all the evidence which supports the verdict. An appellate court will only reverse the decision of the trial court when certain that the trial court has abused its discretion in failing to grant a new trial. Id. On appeal, this Court will disturb a jury ver-diet only when the verdict rendered by the jury is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Id.

¶ 15. Testimony revealed that Lad-ner was on the roof because he had been assigned to fly tools down. It was further revealed that Ladner had not been informed a hole existed prior to his fall. Additionally, no evidence was given which proved that Ladner had seen the hole created by Accu-fab prior to his fall. Furthermore, it was disclosed that Ladner was within a perimeter safety line which was a confined area on the roof; therefore, he was not required to wear a safety belt. After the accident occurred, employees with both Anderson and Accu-fab approached and viewed the hole which Lad-ner fell through without wearing safety belts. While some witnesses believed a safety belt might have made a difference, the general consensus derived from the differing testimony pertaining to Ladner’s possible attribution to his death revealed that even if Ladner had worn a safety belt while working near the hole, due to the work Ladner was performing he would have been at risk at destroying his safety belt, he was not provided an appropriate place to attach the belt within the safety barricade of the clock tower, and would have still had to unhook the belt to continue performing further tasks. Due to the conditions of his surroundings and the demands of his work, under either theory Ladner was exposed to the dangers of the open hole created by Accu-fab. With this testimony in mind, this Court also notes that some witnesses espoused that if Lad-ner were aware of the hole he should have ceased working and notified someone of the necessity to barricade or cover the hole. Accu-fab has cited case law in an attempt to support its argument; however, this Court finds all of these cases to be inapplicable since they are distinguishable from the case at bar. Therefore, upon reviewing all of the evidence presented, in the light most consistent with the verdict, we find that the jury’s apportionment of five percent fault to Ladner was not against the overwhelming weight of the evidence. The trial judge did not abuse his discretion in denying Accu-Fab’s motion for a new trial. Accordingly, we find this assignment of error to lack merit.

¶ 16. Finally, the insurer of Bracken Construction Company, Employers’ Insurance of Wausau, intervenes in the motion for rehearing, not surprisingly, to endorse the position of Bracken that apportionment of damages was properly disallowed against Bracken by the trial court, and that the issues presented by Anderson and Accu-fab on rehearing be denied. These issues, of course, are disposed of in our discussion of the arguments presented by Bracken, Accu-fab, and Anderson.

¶ 17. We turn now to Anderson’s remaining issues.

III. WHETHER ROY ANDERSON WAS ENTITLED TO STATUTORY IMMUNITY UNDER MISSISSIPPI WORKERS’ COMPENSATION ACT.

¶ 18. Roy Anderson has argued an entitlement to statutory immunity under this State’s Workers’ Compensation Act. Because Miss.Code Ann. § 71-3-9 (Rev. 1995) makes workers’ compensation the exclusive remedy against an employer for a job related action, no other civil action may be brought against the employer. This immunity from civil action also extends to statutory employers. Miss.Code Ann. § 71-3-7 (Rev.1995). A statutory employer, as set forth in § 71-3-7, is a general contractor who is obligated to provide workers’ compensation coverage to the employees of his subcontractor not covered by a workers’ compensation policy. However, Miss.Code Ann. § 71-3-5 (Rev. 1995) provides that this State’s Workers’ Compensation Act does “not apply to transportation and maritime employments for which a rule of liability is provided by the laws of the United States.”

¶ 19. A covered employee under the Longshore and Harbor Workers’ Compensation Act “means any person engaged in maritime employment including ... any harbor workers including a ship repairman, shipbuilder.” 33 U.S.C. § 902(3). At the time of injury, Ladner was engaged in the construction of a vessel upon a navigable waterway, and as such he was covered by the LHWCA. The parties agreed during argument on a motion for summary judgment that there was no immunity if Ladner was covered under the LHWCA. Having found Ladner to be covered by the LHWCA, this Court holds there was no immunity. Congress has mandated coverage for injured maritime workers under the LHWCA. 33 U.S.C. § 901. Because Congress has spoken to this matter, our Workers’ Compensation statute specifically excludes it. There is, therefore, no immunity available to Anderson.

IV. WHETHER THE TRIAL COURT ERRED IN EXCLUDING RESULTS OF DRUG TESTS AND OTHER EVIDENCE OF DRUGS, AS WELL AS EVIDENCE OF PRIOR CONVICTIONS.

¶20. Anderson and Accu-Fab contend that the evidence of marijuana in Ladner’s body should have been admitted as evidence of his contribution to his injuries. The trial court disallowed this evidence. We sustain the trial court’s finding.

¶ 21. When Ladner was taken to the hospital after his fall, a urine sample was taken to screen for drugs. This test was not done for the purpose of providing medical treatment, nor was permission obtained from Ladner or members of his family. Rather, the drug test was done as a result of an agreement between the hospital and Anderson to conduct drug tests on Anderson employees. Persons employed by Anderson were required to execute a written consent to post-injury drug testing. The actual drug testing was not performed by the hospital but by a private lab with the results sent directly to Anderson. The record established that Ladner was not an Anderson employee and not covered by the agreement between Anderson and the hospital.

¶ 22. Our rules of evidence provide what is and is not admissible as evidence. Mississippi Rule of Evidence 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Mississippi Rule of Evidence 402 provides that all relevant evidence is admissible, and all irrelevant evidence is inadmissible.

¶ 23. Both Accu-Fab and Anderson cite Hughes v. Tupelo Oil Co., 510 So.2d 502 (Miss.1987), as iron-clad authority that the drug screen performed on Ladner was admissible. However, a close reading of Hughes reveals the limited nature of that holding. In Hughes, the issue, as here, was whether the blood alcohol level of the decedent was admissible. In Hughes, the decedent, a pedestrian, was killed after being struck by a tractor-trailer truck while walking down the middle of the road. Id. at 504. The investigating law enforce,ment officer ordered the blood test pursuant to Mississippi’s implied consent law; however, the supreme court held that the officer had no basis to order the test under the implied consent law because there was no evidence that the decedent was operating a motor vehicle. Id. at 505. Thus, having found that the blood test was ordered without proper authority, the court’s analysis turned to the admissibility of improperly obtained evidence in a civil trial. Id. Relying on United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976), the Mississippi Supreme Court noted that the exclusionary rule had never been applied to exclude improperly obtained evidence in a civil proceeding. Hughes, 510 So.2d at 505. The purpose of the exclusionary rule is to deter improper police conduct. Id. Thus, since the suppression of the blood test would not deter the police officer who ordered the test, then there was no basis to exclude the otherwise relevant evidence. MBut, the supreme court specifically held “[w]e make no determination of the admissibility of evidence obtained through the wrongful acts of the party seeking its admission .... ” Id.

¶ 24. In the case sub judice, the question specifically not answered by the supreme court in Hughes is squarely presented here, and we answer it in favor of Ladner based on an application of our rules of evidence that the trial judge properly ruled that this evidence was inadmissible in favor of Anderson and Accu-Fab. Neither appellant had authority to draw samples, nor to order samples drawn of bodily fluids from the decedent for testing purposes. Ladner was not an employee of Anderson nor Accu-Fab, thus any drug-testing policy applicable to their employees necessarily did not apply to Ladner.

¶ 25. “[Ajdmission or suppression of evidence is within the discretion of the trial judge and will not be reversed absent an abuse of that discretion.” K-Mart Corp. v. Hardy, 735 So.2d 975, 982 (Miss.1999) (citing Broadhead v. Bonita Lakes Mall, Ltd. Partnership, 702 So.2d 92, 102 (Miss.1997)) (quoting Sumrall v. Mississippi Power Co., 693 So.2d 359, 365 (Miss.1997)) (other citations omitted). Further, for a case to be reversed on the admission or exclusion of evidence, it must result in prejudice and harm or adversely affect a substantial right of a party. Terrain Enter., Inc. v. Mockbee, 654 So.2d 1122, 1131 (Miss.1995).

¶ 26. Anderson and Accu-Fab have not suggested, nor does the record establish, that a substantial right was violated by the exclusion of this evidence. There is no evidence in the record which would suggest that Ladner suffered from an impairment which caused or contributed to his own injuries. Absent this necessary foundation, the trial court properly excluded this evidence. See Holladay v. Tutor, 465 So.2d 337, 338 (Miss.1985) (finding a box of marijuana and quaaludes found in defendant’s car was not relevant and its only purpose was to prejudice the jury); see also Pope v. McGee, 403 So.2d 1269, 1271 (Miss.1981) (excluding evidence of two six packs of beer and an unidentified white powder found in defendant’s car because they offered no proof on proximate causation of the collision, and its prejudicial value greatly outweighed its probative value).

¶ 27. With our sustaining the trial court’s ruling that the drug tests were inadmissible, the issue of the marijuana found in the decedent’s pants pocket becomes moot. With there being no evidence that Ladner was affected in his work by the influence of drugs — thus rendering the drug tests irrelevant — we likewise find that the contents of Ladner’s pockets were irrelevant and without proper foundation. See Mockbee, 654 So.2d at 1131.

¶ 28. Accu-Fab also argues that the trial court improperly excluded Ladner’s 1980 criminal conviction for possession of a controlled substance with the intent to deliver. Accu-Fab contends it should have been allowed to admit this evidence relative to the decedent’s future earning capacity during the economist testimony presented by Ladner. The trial court entered an order excluding this evidence, holding that such evidence was irrelevant to the issues involved in the case at bar. Ladner argues that the evidence of the prior criminal conviction was properly excluded under Mississippi Rules of Evidence 609. This Court notes that with the exception of the distinguishable Fifth Circuit case of Carroll v. Morgan, 17 F.3d 787 (5th Cir.1994), Accu-Fab has failed to cite authoritative law for this state, to support its position on admissibility of Ladner’s prior conviction to show its effect on his future earning potential. As aforementioned, the point of law for which Accu-Fab has cited the fifth circuit case of Carroll, is factually distinguishable from the case at bar.

¶29. In Carroll, Accu-Fab supports its position for the admission of Ladner’s pri- or conviction, based on the holding of the court that a doctor was allowed to give expert opinion testimony on plaintiffs decedents intemperance to show decedent was not healthy and this previous condition might have resulted in a reduced life expectancy. Id. at 791. This case is distinguishable from the case at bar, because Carroll dealt with the admission of expert opinion testimony entered into evidence in the realm of medical testimony and was relevant to the patient’s possible cause of death. In the case at bar, we are dealing with the admissibility of a fifteen year-old prior criminal conviction which has no relevance to the patients cause of death. With this distinction having been made, and after researching this state’s law, we can find no law which supports Accu-Fab’s argument; therefore, we find this issue to be without merit.

Y. WHETHER OSHA REGULATIONS WERE ADMISSIBLE AS EVIDENCE OF NEGLIGENCE.

¶ 30. Anderson and each of his subcontractors, by written contract, agreed to perform all work consistent with U.S. Department of Labor’s Occupational Safety and Health Standards (OSHA). Appellants argue that admission of information regarding OSHA standards was improper. However, during the course of oral argument before this Court, counsel for appellant indicated it was not the reference to OSHA standards, but rather the number of times the name of a federal administrative agency was invoked and whether such a frequent reference to OSHA unduly influenced the jury.

¶ 31. As a matter of law, evidence regarding OSHA standards is not admissible to prove negligence per se, or the lack of negligence per se. Sumrall v. Mississippi Power Co., 693 So.2d 359, 367 (Miss.1997). However, our rules of evidence allow limited admissibility of certain evidence for one purpose but not for another. M.R.E. 105. Thus, applying Rule 105, we find the OSHA standards could be introduced to aid the trier of fact in determining whether the actions complained of were reasonable and consistent with industry standards provided that the jury was properly instructed as to the limited nature for which the OSHA standards were admissible. Instruction P-22(a) provided the necessary limitation on the use of the evidence, instructing that the OSHA standards could not be used to find negligence per se on the part of Anderson and Accu-Fab, but could be used as a measure of reasonable care consistent with industry standards.

¶ 32. We find the purpose for which the trial court allowed the introduction of the OSHA standards was sufficiently limited and, therefore, not improper. Accordingly, this Court finds no error in the admission of OSHA standards or reference to OSHA.

VI. WHETHER ACCU-FAB WAS REQUIRED UNDER ITS CONTRACT TO INDEMNIFY ANDERSON.

¶ 38. Accu-Fab was employed as a subcontractor by Anderson. Accu-Fab began its work without a written contract. This work was begun prior to Ladner’s accident which occurred on March 7, 1994. After the March 7, 1994 fatal accident, Anderson sent a written contract to Accu-Fab for its execution.

¶ 34. This contract was received by Accu-Fab on March 9, 1994, executed and returned to Anderson on March 11, 1994. The contract, as executed by Accu-Fab, included general language which required indemnification of Anderson by Accu-Fab. The jury found no entitlement to indemnification, and Anderson now argues that indemnification should have been compelled as a matter of law.,

¶ 35. While not argued by the parties, we are compelled to note that this state’s public policy, as set forth in Miss. Code Ann. § 31-5-41 (Rev.1990), precludes enforcement of this indemnification agreement. Miss.Code Ann. § 31-5-41 reads as follows:

With respect to all public or private contracts or agreements, for the construction, alteration, repair or maintenance of buildings, structures, highway bridges, viaducts, water, sewer, or gas distribution systems, or other work dealing with construction, or for any moving, demolition or excavation connected therewith, every covenant, promise, and/or agreement contained therein to indemnify or hold harmless another person from the person’s own negligence is void as against public policy and wholly enforceable. This section does not apply to construction bonds or insurance contracts or agreements.

It is clear that this is a construction contract where Anderson seeks indemnification for its negligent actions. Such indemnification is void as against public policy as set forth in Miss.Code Ann. § 31-5-41.

¶ 36. In addition to being viola-tive of public policy, this claim also fails for lack of consideration. An agreement for indemnification, like any other contract, must be supported by consideration. An-derton v. Business Aircraft, Inc., 650 So.2d 473, 476 (Miss.1995). This is especially true where the occurrence for which indemnification is sought predates the indemnity agreement. This Court has found nothing in the record to indicate any consideration flowing to Accu-Fab so as to compel it to indemnify Anderson for Lad-ner’s injuries.

¶ 37. Anderson suggests that Accu-Fab did receive consideration for its agreement to indemnify Anderson for Ladner’s injuries. The consideration suggested by Anderson was the contract price to be paid to Accu-Fab for work performed. While it is possible to execute a contract which indemnifies for prior events, such a contract must clearly set forth that intention. This is particularly true where the incident for which indemnification is sought has already occurred and is known to both parties prior to the execution of the contract.

¶ 38. In this case, the contract does not include prior occurrences, nor does it specifically include the known event. Under these facts, we decline to find error on this issue.

VII. WHETHER THERE WAS A DUTY OWED TO LADNER BY ANDERSON AND ACCU-FAB.

¶ 39. Anderson was intent on keeping construction on schedule. In an effort to do so, the metal roof was placed on the barge prior to Accu-Fab’s installation of all of the stairs. As a result, Accu-Fab received permission from Anderson to cut the six foot hole in the roof to lower the stairs in place.

¶40. By contract, Anderson had exclusive control of the construction site and all activities conducted there. All work was to be coordinated through and approved by Anderson. No changes or alterations, such as cutting the hole through which Ladner fell, were to be made without the knowledge and approval of Anderson.

¶ 41. The supreme court in Oden Const Co. v. McPhail, set out the general rule regarding the duty owed by a general contractor on a construction job:

The general rule is that a general contractor on a construction job who is in control of the premises is burdened with the duty to use ordinary care to provide a safe place for employees of a subcontractor to work....
As part of supervising the work, it is the duty of the general contractor to oversee conditions in the work of each subcontractor so far as they affect the safety of the employees of the subcontractor.

Oden Const. Co. v. McPhail, 228 So.2d 586, 587 (Miss.1969) (quoting Raich v. Aldon Const. Co., 129 Cal.App.2d 278, 276 P.2d 822, 827-28 (1954)).

¶ 42. Whether Anderson used ordinary care is a question of fact to be determined by the jury. The jury was presented with information which showed:

(1) the hole was cut with Anderson’s knowledge and permission;
(2) that the hole was cut after Bracken and its employees (Ladner) had gone home for the weekend;
(3) that only Anderson had any material available to cover the hole;
(4) that Anderson generally covered holes and other dangerous conditions; and,
(5) there was a dispute as to whether Ladner’s employer was informed of the dangerous conditions.

¶ 43. These facts created a jury question. The record contains sufficient evidence upon which the jury could, and did, determine that Anderson breached its duty of reasonable care.

¶ 44. This same is true of Accu-Fab, which actually cut the hole.

CONCLUSION

¶ 45. Under the circumstances presented in the case at bar, the trial court properly denied the inclusion of Bracken in the apportionment of damages, as well as having made proper findings of fact and law relative to the aforementioned issues. Therefore, we affirm the judgment of the trial court.

¶ 46. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN ANDERSON AND ACCU-FAB.

BRIDGES, DIAZ, PAYNE, AND THOMAS, JJ., CONCUR. IRVING, J„ CONCURRING IN PART AND DISSENTING IN PART JOINED BY KING, P.J. MCMILLIN, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SOUTHWICK, P.J. MOORE, J., NOT PARTICIPATING.

McMILLIN, C.J.,

DISSENTING:

¶ 47. I respectfully dissent. The question of whether “fault” within the meaning of Section 85-5-7 can be apportioned to an

entity not a party to the litigation has been answered in the affirmative by the case of Estate of Hunter v. General Motors, 729 So.2d 1264 (Miss.1999). The majority of this Court errs when it relies upon a proposed definition of the word “party” contained in the dissent in Estate of Hunter to suggest that Bracken’s unavailability as a defendant in the tort action precluded the jury from calculating Bracken’s percentage of fault in Ladner’s death. We, as an intermediate appellate court, are obligated to follow the precedents contained in decisions of the Mississippi Supreme Court.

¶ 48. In Estate of Hunter, the supreme court considered whether the use of the term “party” in Section 85-5-7 meant that an alleged wrong-doer had to be a party to the litigation in order to have fault assigned to it. The court concluded that the Legislature intended the term only as a single-word means of identifying any of the multiple entities capable of being adjudicated at fault, whether an individual or some recognized legal entity such as a corporation. Id. at 1276 (¶ 44). Justice McRae, writing in dissent, urged a contrary interpretation of the word “party” as referring to an entity lawfully before the court and subject to the court’s jurisdiction. Id. at 1281 (¶ 66). In that situation, no matter how compelling the members of this Court might find Justice McRae’s argument, we simply are not at liberty to adopt it in this situation. Rather, we must concede the issue to the majority’s view contained in the opinion of the court.

¶ 49. Having determined that Estate of Hunter admits of the 'possibility that Bracken could have some fault apportioned to it even though it was not a party to the litigation, we ought then to turn to the related question of whether the decision in that case requires the jury to consider the potential degree of negligence of an employer enjoying immunity under workers compensation law. In my view, the reasoning in Estate of Hunter does not necessarily compel the same result in this case. To a large extent, Estate of Hunter was decided based upon policy considerations of fundamental fairness rather than principles of logical interpretation of statutory language. That policy consideration was the inherent unfairness seen to arise from refusing to permit fault to be allocated to a settling defendant. In the view of the supreme court, this gave rise to the possibility that the plaintiff would purposely agree to a nominal settlement against an indigent defendant, even though that defendant had substantial culpability in causing the injury, in order to preserve the potential for a larger recovery from a less culpable defendant with deeper pockets. Id. at 1273 (¶ 32).

¶ 50. The same considerations of policy do not arise in the context of this case. When the absent defendant is the injured party’s employer, that employer is exempt from suit by statute and the inclusion or exclusion of the employer is not a matter subject to manipulation by the injured employee.

¶ 51. A different policy consideration arises in the situation now before us. The question becomes whether the injured plaintiff must see his potential recovery diminished by an assignment of fault to his immune employer or whether a third party defendant may be made to respond in damages in an amount that exceeds that defendant’s proportionate share of fault in causing the injury. In my view, the more equitable result is to permit allocation of fault to the exempt employer. While this diminishes the injured party’s ultimate recovery in the tort action, the injured party has already obtained or may, post verdict, seek recovery under the compensation law from his employer. This right of recovery under workers’ compensation law is specifically intended to replace the previously-existing common law right of recovery against the employer in tort. Thus, if the injured party is entitled to pursue both compensation benefits and recovery in tort from a negligent third party whose liability is undiminished by the percentage of fault attributable to the injured party’s employer, the injured party is, to an extent, compensated twice for the same injury. I would find it proper to require the allocation of fault to an immune employer to avoid such double recovery.

¶ 52. Additionally, I respectfully disagree that evidence of the presence of marijuana in Ladner’s bloodstream, together with evidence of marijuana cigarettes in his pocket, was inadmissible. There was a legitimate jury issue as to what percentage of fault for the accident could be attributed to Ladner under Mississippi’s comparative negligence law. Miss.Code Ann. § 85-5-7 (1972). It would be my firm view that evidence tending to show that Ladner may have been under the influence of a consciousness-altering drug to some degree was, at least potentially, admissible for such consideration as the jury determined was proper. Whether that evidence would need to be accompanied by expert testimony to assess the levels of drug ingestion discovered and the typical degree of motor or mental skill impairment that accompanies such a dosage level is another matter and one that could be resolved on remand. However, the threshold exclusion of the evidence based on considerations involving the manner in which the evidence was gathered was, in my view, patently wrong. Evidence in a civil trial is admitted or excluded principally on the issue of its probative value and not on the means by which it was gathered (excluding, of course, such self-evident exceptions as the various privileges set out in Mississippi Rule of Evidence 501 through 505). The trial court in this instance concluded that Ladner had not consented in advance to having his blood drawn and tested for drugs. Even assuming the truth of that proposition, there is nothing in the rules of evidence that would suggest the propriety of excluding the evidence on that basis.

¶ 58. The majority errs when it suggests that this case squarely presents the question unanswered in Hughes v. Tupelo Oil Co. as to whether evidence obtained through the wrongful acts of a party may be properly excluded when that party seeks its admission. Hughes v. Tupelo Oil Co., 510 So.2d 502, 505 (Miss.1987). As a result, the majority’s subsequent reasoning to exclude evidence of Ladner’s possible impairment by answering the “unanswered question” of Hughes in favor of exclusion is faulty because it begins with an erroneous premise. There is no evidence that any defendant committed a wrongful act in obtaining Ladner’s blood sample. The blood was drawn by a hospital operating under the mistaken assumption that Lad-ner was an employee of Roy Anderson Corporation, and there simply is no indication that any party in this case did anything wilfully or even negligently to create this false assumption on the hospital’s part.

¶ 54. As an appellate court, we traffic in concepts defined as best we can with the available words of our language. On occasion, words may fairly be said to be an imperfect means of communication. But to say that a mistake by an entity not a party to this litigation may be equated to a wrongful act by a party to the case, and then use that proposition as the basis to exclude relevant evidence is, in my view, an egregious mishandling of the essential tools of our trade.

¶ 55. There is no hint that Anderson Corporation and Accu-Fab were engaged in an underhanded scheme to surreptitiously test an unconscious and dying Lad-ner for drugs. Evidence that he might have been impaired through the use of illegal drugs was certainly relevant. If it is to be excluded on retrial, it ought to be on some other basis than that advanced by the majority in its opinion.

¶ 56. Ladner also points out that the trial court based its ruling in part on the proposition that the evidence of Ladner’s drug use was so prejudicial that it failed to pass the filtering screen of Mississippi Rule of Evidence 403. To the extent that the trial court based its ruling on that idea, I would reject the notion out of hand. Certainly, evidence of impaired physical and mental capabilities brought on by self-administered illegal drugs may be prejudicial, but, when the issue is whether Lad-ner, by his actions, contributed to his own death, that evidence so fundamentally goes to the heart of the case that its probative value necessarily exceeds any attendant prejudice to the plaintiff. To hold otherwise would be to suggest that, in a tort suit involving an automobile accident, evidence that one driver was substantially intoxicated could be kept from the jury because of the inflammatory nature of such evidence in today’s society.

¶ 57. I conclude that we err when we preclude any possibility that the jury could hear evidence of Ladner’s impairment based on drug use and would remand with instructions that the evidence might be admissible assuming the proper predicate could be laid to demonstrate that the drug concentration was sufficient to impair Lad-ner’s mental and motor skills to even the slightest degree. See Allen v. Blanks, 384 So.2d 63, 67 (Miss.1980) (holding that “[i]t is a fact capable of judicial notice that consumption of even small quantities of alcohol may significantly, albeit “imperceptibly,” impair reaction time.”). Whether impairment from marijuana use is a matter “capable of judicial notice” is a matter better left to be thrashed out at the trial level on remand, but, short of that, it is certainly a matter capable of scientific proof.

SOUTHWICK, P.J., JOINS THIS SEPARATE WRITTEN OPINION.

IRVING, J.,

CONCURRING IN PART, DISSENTING IN PART:

¶ 58. With deference to the majority’s views, I dissent from its holding that Bracken is not a joint tort-feasor for purpose of apportionment under Miss.Code Ann. § 85-5-7(7) (1972). The Mississippi Supreme Court’s construction of this statute in Estate of Hunter, 729 So.2d 1264 (Miss.1999) leaves no room for equivocation on this issue. That is made certain by the following quote from Hunter: “This Court holds that the term ‘party’, as used in § 85-5-7(7), refers to any participant to an occurrence which gives rise to a lawsuit, and not merely the parties to a particular lawsuit or trial.” Id at 1276.

¶ 59. I also dissent from the majority’s conclusion that the jury’s apportionment of fault to Ladner, Bracken’s employee, equates to constructive apportionment of fault to Bracken. I agree with the majority that a corporation acts through its agents and employees. However, Ladner was a common laborer, not a member of the board of directors of Bracken or its management level personnel. I know of no authority holding that the actions of a corporate employee at this low level may be equated to the actions of the corporation.

¶ 60. While I appreciate the majority’s argument as to why Bracken should not be included in the apportionment process, I cannot ignore the clear holding of the Mississippi Supreme Court which makes it impossible to arrive at the result reached by the majority on the apportionment issue without refusing to follow precedent set by our Supreme Court. Since I cannot distinguish Hunter, and because I do not believe an employee at Ladner’s level can be considered the alter ego of Bracken, I must part company with the majority on this issue.

¶ 61. I also disagree with the majority’s reasoning for upholding the trial court’s ruling excluding the results of the drug test from the evidence in this case. However, I do believe the trial judge’s decision should be upheld because, in my opinion, the record here is insufficient to warrant a finding that the trial judge erred, although his reason may not have been sufficiently grounded.

¶ 62.1 arrive at my position on this point because I believe the record is insufficient to warrant a finding that Anderson acted properly or improperly in obtaining the evidence and that the resolution of the issue of whether the drug test evidence was properly excluded should be premised not on Anderson’s actions but on whether the evidence was relevant. The record is devoid of evidence sufficient for us to make such determination. Therefore, I would uphold the trial judge’s exclusion of the drug test results. Anderson did not make a proffer evidencing a sufficient relevant basis to support admission of the evidence. The fact that Ladner had a drug in his system at the time of the accident, without more, is not relevant to the question of his contributory negligence in the accident. Since Anderson made no proffer of how this evidence was relevant to the issue being tried, I would hold that it did not preserve the issue for proper review. My treatment of this issue should not be interpreted to mean that a finding of misconduct on Anderson’s part in obtaining the drug test and result is immaterial to the decision to admit the drug test evidence. I simply find that the record here is insufficient to make such a finding. In a proper case, I would agree with the majority that misconduct on the part of the proponent of the evidence in obtaining the evidence should preclude its admission.

¶ 63. I concur with the reasoning and result reached by the majority on the other issues. However, I would reverse and remand for a new trial so that the issue of apportionment can be placed before the jury.

KING, P.J., JOINS THIS SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Bruce LAWRENCE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2006-CP-01389-COA.
    Court of Appeals of Mississippi.
    May 29, 2007.
    Rehearing Denied Nov. 20, 2007.

      Bruce Lawrence (Pro Se), Attorney for Appellant.

      Office of the Attorney General by Jeffrey A. Klingfuss, Attorney for Appellee.
   ISHEE, J.,

for the Court.

¶ 1. Bruce Lawrence pleaded guilty to the charge of murder in the Circuit Court of Oktibbeha County. Lawrence was sentenced to a term of life imprisonment in the Mississippi Department of Corrections. Lawrence’s pro se petition for post-conviction relief was summarily dismissed on July 27, 2006, by the circuit court. Aggrieved by the court’s decision, Lawrence appeals asserting three issues: (1) his plea was involuntary, (2) the trial court erred in denying his motion for production of the records, and (3) he received ineffective assistance of counsel. Finding no error, we affirm.

FACTS

¶ 2. On January 24, 2003, Lawrence was indicted by an Oktibbeha County grand jury for murder and felony D.U.I., having been convicted of D.U.I. on two prior occasions. Mark Williamson, appointed counsel for Lawrence, assisted him with completing the petition to enter a plea of guilty to the charge of murder. In the petition, Lawrence acknowledged that he was entering a blind plea to the crime of murder, and that, if convicted, he could be sentenced to a minimum of life imprisonment and/or a fine in the amount of zero to $10,000. Lawrence also acknowledged that he read and understood the constitutional rights he waived by pleading guilty, specifically, the right to take the witness stand at his sole option and the right to use the power and process of the court to compel the production of any evidence, including the attendance of any witness in his favor. Lawrence attested that he was entering a plea of guilty freely and voluntarily and of his own accord with a full understanding of all matters set forth in the indictment and the plea petition. Furthermore, Lawrence acknowledged that his attorney was fully informed as to all of the facts and circumstances surrounding his case, and that counsel did all that anyone could do to counsel and assist him and that, though counsel told him he might receive probation or a lighter sentence, counsel’s prediction was not binding on the court.

¶ 3. The circuit court accepted Lawrence’s guilty plea during a hearing held on April 27, 2004, whereupon the State had rested its case-in-chief and Lawrence then petitioned to change his original plea of not guilty to guilty. The judge explained to Lawrence that he possessed the following rights: (1) the right not to plead guilty; (2) the right to a speedy, public trial by a jury; (3) the presumption of innocence; (4) the right to confront his accusers; (5) the right to testify in his own defense, if he chose to do so; and (6) the right to call witnesses and have those witnesses appear and testify on his behalf. The judge further explained to Lawrence that, by entering a plea of guilty he waived the aforementioned rights. Lawrence responded that he understood. Lawrence testified that he and his attorney reviewed his petition to enter a plea of guilty and that he understood the information contained in the petition and that he had no questions regarding the petition. He testified that he understood the nature of the crime with which he was charged, as well as any possible defenses. Lawrence testified he understood there was only one sentence for the crime of murder, that being life imprisonment, and that the judge could impose a fine of up to $10,000. Lawrence testified that no one forced him into pleading guilty. He also testified that his attorney went over his case with him, and that he was satisfied with the advice and assistance of his attorney.

¶4. At this stage of the hearing the court read the indictment of the murder charge to Lawrence, which stated, “on or about September 28, 2002, in Oktibbeha County, Mississippi, Lawrence did willfully, unlawfully, and feloniously and with the deliberate design to affect death, that is with malice aforethought, kill and murder a human being, Lillian Ingram a/k/a Frankie, without authority of law and not in necessary self-defense.” Lawrence then admitted that he was guilty of the charge and the court accepted the plea of guilty, finding Lawrence competent to understand the nature of the charges against him and the consequences of his plea of guilty. The court sentenced Lawrence to the only sentence by law that could be imposed, that being a term of life imprisonment in the custody of the Mississippi Department of Corrections. The court further noted that the plea of guilty was being made during the course of the trial, and after the State had rested its case-in-chief and the evidence for the State had been presented. The court then heard and sustained motions pending in companion cases involving Lawrence at which time the State requested the court retire to the file the charge of felony D.U.I. and simple assault on a police officer.

STANDARD OF REVIEW

¶ 5. In reviewing the 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) (citing Kirksey v. State, 728 So.2d 565, 567(8) (Miss.1999)). However, where questions of law are raised the applicable standard of review is de novo. Pace v. State, 770 So.2d 1052, 1053(4) (Miss.Ct.App.2000).

ISSUES AND ANALYSIS

I. Whether Lawrence’s plea of guilty was involuntary.

¶ 6. Lawrence argues that his court-appointed counsel induced him to change his plea to guilty after the State had presented and rested its case-in-chief by stating that Lawrence would only receive a twenty-year sentence for murder. Attached to Lawrence’s brief is a handwritten letter subscribed by his sister stating that her brother’s attorney told her and Lawrence that Lawrence would get twenty years if he did not testify and entered a guilty plea. The letter was not witnessed or notarized. Lawrence submitted a reply brief with an amended letter that states the letter from his sister was notarized “on the back;” however, the notary’s seal was on a separate sheet of paper. This letter from Lawrence’s sister was the only evidence submitted to support the contention that counsel stated Lawrence would receive a twenty-year sentence if he entered a plea of guilty to the charge of murder. However, the record is replete with evidence that Lawrence was fully advised and understood the consequences of changing his plea from not guilty to guilty at the conclusion of the State’s case-in-chief on the charge of murder. The petition submitted by Lawrence specifically states the sentence to be imposed for a guilty plea to murder would be life imprisonment with the possibility of a fine from zero to $10,000. Furthermore, the transcript of the plea hearing reflects the court’s questioning of Lawrence regarding the consequences of entering a plea of guilty and that the only sentence to be imposed to such plea to murder was life imprisonment.

¶ 7. Where erroneous legal advice on sentencing has been given to a defendant by his counsel and/or defendant relied on assertions or predictions made by his counsel, no error attaches if the record affirmatively shows the defendant was correctly advised of his peril by the sentencing court. Roland v. State, 666 So.2d 747, 749-50 (Miss.1995). In some cases, however, mistaken advice from counsel can vitiate a guilty plea. Gardner v. State, 531 So.2d 805, 809 (Miss.1988). In Gardner, the court stated the thoroughness by which the lower court had interrogated Gardner at the time his guilty plea was tendered was the most significant evidence. Id. The court then determined regardless of the instructions or advice defendant may have received from counsel, the thoroughness of the lower court’s questioning at the sentencing hearing was sufficient to render the plea voluntary. Id. at 810 (citing Sanders v. State, 440 So.2d 278, 284 (Miss.1983)). Having reviewed the petition and the transcript from the sentencing hearing, it is clear in this case that Lawrence was thoroughly questioned and fully advised of his potential sentence by the trial court and that his plea was entered voluntarily. Therefore, this issue is without merit.

II. Whether the trial court erred in denying Lawrence’s motion for production of records.

¶ 8. Lawrence argues that the trial court should not have denied his motion for production of records, specifically his request for the transcript of his partial trial. Lawrence contends that with the records which were denied he would be able to show that his murder was a “crime of passion.”

¶ 9. In Fleming v. State, 553 So.2d 505, 506 (Miss.1989), the court stated where a prisoner has filed a proper motion pursuant to the Uniform Post-Conviction Collateral Relief Act, and whose motion has withstood summary dismissal under section 99-39-11(2), then that individual may be entitled to trial transcripts and other relevant documents under the discovery provision in section 99-39-15, upon good cause shown and under the discretion of the lower court. Fleming, 553 So.2d at 506. Lawrence’s motion did not withstand summary dismissal, however Lawrence was still provided with the transcript of his guilty plea and other relevant documents pertaining to his motion for post-conviction collateral relief. Lawrence’s petition is similar to that in Roland, where Roland failed to show good cause that the additional records he sought were of any relevance to the issues raised in his petition. Roland, 666 So.2d at 751. As in Roland, there is no indication here that the trial judge abused his discretion in denying Lawrence’s request for production of records. Furthermore, it is apparent that Lawrence seeks to attack his conviction and sentence via the means of a post-conviction collateral relief motion in that he now seeks to use the partial transcript to persuade the court that he is not guilty of murder but rather a “crime of passion.” Lawrence waived the right to directly appeal the conviction of murder when he entered his plea of guilty. However, the Court will address his claim that he committed a crime of passion only to clarify Lawrence’s position that if he was guilty of a “crime of passion,” then he could be sentenced to the lesser offense of manslaughter.

¶ 10. Lawrence’s argument is similar to the that made in Magee v. State, 752 So.2d 1100, 1104(15) (Miss.Ct.App.1999), where Magee appealed for post-conviction relief after entering a plea of guilty to murder and argued ineffective assistance of counsel under the belief that facts known to Magee personally would support the lesser charge of manslaughter and that his attorney had not informed him of the possibility of such a charge. Magee, 752 So.2d at 1104(¶ 15). This Court stated Magee had misunderstood the law of manslaughter, and was equating a “crime of passion” with a killing in the heat of passion, which Lawrence seems to have done as well. Id. This Court explained that “heat of passion” killings, classed as manslaughter under our criminal statutes, involve an act committed while the defendant is under a temporary overmastering passion caused by some sudden provocation of sufficient gravity to cause the defendant to act on impulse and without the reflection that might normally precede a decision on whether or not to physically attack another human being. Id. (citing Miss.Code Ann. § 97-3-B5 (Rev.2006); Windham v. State, 520 So.2d 123, 127 (Miss.1987); Preston v. State, 25 Miss. 383 (1853)). This Court further explained that a “crime of passion” is not understood to invoke the aforementioned consideration of the issues of law that separate murder from a lesser homicide, rather it is merely a vernacular term often used to describe a crime committed as a consequence of a problematic romantic relationship. Magee, 752 So.2d at 1104(16). Here, as in Magee, the record contains ample evidence to show that Lawrence and his victim were experiencing romantic difficulties; however, there is nothing to suggest that the victim did anything in the moments prior to her death to provoke or arouse sufficient passion to cause Lawrence to suspend his normal judgment and caution and kill the victim in a moment of rage. This issue is without merit, and finding no error in the lower court’s decision to deny Lawrence’s motion for production of records, we affirm.

III. Whether he received ineffective assistance of counsel.

¶ 11. Lawrence argues he received ineffective assistance of counsel because, according to Lawrence, counsel told him that if he entered a guilty plea to murder that Lawrence would receive a sentence of twenty years. The test for ineffective assistance of counsel is well known and requires a showing of deficiency in the performance of counsel and prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Stringer v. State, 454 So.2d 468, 476-77 (Miss.1984). To bring a successful claim for ineffective assistance of counsel, pursuant to the court’s ruling in Strickland, the defendant must prove that his attorney’s overall performance was deficient and that this deficiency deprived him of a fair trial. Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Moore v. State, 676 So.2d 244, 246 (Miss.1996) (citing Perkins v. State, 487 So.2d 791, 793 (Miss.1986)). We must be mindful of the “strong but rebuttable presumption that an attorney’s performance falls within a wide range of reasonable professional assistance and that the decisions made by trial counsel are strategic.” Covington v. State, 909 So.2d 160, 162(¶ 4) (Miss.Ct.App.2005) (quoting Stevenson v. State, 798 So.2d 599, 602(¶ 6) (Miss.Ct.App.2001)). To overcome this presumption, the defendant must demonstrate “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Woodson v. State, 845 So .2d 740, 742(¶ 9) (Miss.Ct.App.2003).

¶ 12. Lawrence asserts that were it not for counsel’s recommendation, Lawrence would have continued with the trial. There is nothing in the record to support this contention. Furthermore, there is ample evidence to support the lower court’s finding that Lawrence knew and understood that by entering a plea of guilty to the charge of murder there was but one sentence the court could impose, that being a term of life imprisonment. Lawrence attested on his petition to enter his guilty plea that he knew and understood the consequences of entering such plea, as well as testifying in open court to the same. Solemn declarations in open court by the defendant carry a strong presumption of verity. Roland v. State, 666 So.2d 747, 750 (Miss.1995) (citing Baker v. State, 358 So.2d 401, 403 (Miss.1978)).

¶ 13. The Court will only address one of Lawrence’s specific arguments that he was denied effective assistance of counsel. Lawrence asserts he received ineffective assistance of counsel because a conflict of interest existed because his attorney had represented the victim on several occasions. In Smith v. State, 666 So.2d 810, 812 (Miss.1995), the court said the right of effective assistance of counsel encompasses the right to representation by an attorney who does not owe conflicting duties to other defendants. Smith, 666 So.2d at 812 (citing Stringer v. State, 485 So.2d 274, 275 (Miss.1986)). Again, under Strickland, Lawrence must show that his attorney was faced with an actual conflict of interest. Secondly, he must demonstrate that his attorney actively represented a conflicting interest and that an actual conflict of interest adversely affected his attorney’s performance. Manning v. State, 726 So.2d 1152, 1167-68(26) (Miss.1998) (citing Strickland, 466 U.S. at 692, 104 S.Ct. 2052; Smith 666 So.2d at 812-13). Lawrence merely states that his counsel had represented the victim on several occasions. The victim was dead and it cannot be said that Lawrence’s attorney was actively rep-resentirig a conflicting interest or, in the alternative, that there had been an actual conflict of interest that adversely affected his attorney’s performance.

¶ 14. We find nothing in the record to support Lawrence’s claim that he received ineffective assistance of counsel. In the petition to enter a plea of guilty, Lawrence acknowledged that his attorney was fully informed as to all of the facts and circumstances surrounding his case and that he did all that anyone could do to counsel and assist him. Furthermore, during the guilty plea hearing, Lawrence testified that his attorney went over his case and reviewed the petition with him, and that his attorney explained to him the charge of murder, as well as possible defenses. Lawrence further testified that he was satisfied with the legal advice and help provided by his attorney.

¶ 15. We give “[gjreat weight ... to statements made under oath and in open court during sentencing.” Sanchez v. State, 913 So.2d 1024, 1027(¶8) (Miss.Ct.App.2005) (quoting Young v. State, 731 So.2d 1120, 1123(¶ 12) (Miss.1999)). Statements made during guilty plea hearings are made under oath; as such, “[tjhere should be a strong presumption of validity.” Id. (quoting Mowdy v. State, 638 So.2d 738, 743 (Miss.1994)). Consequently, the Court is not persuaded by Lawrence’s argument that his attorney’s representation was deficient, nor that Lawrence did not receive a fair trial because of any deficiency in his attorney’s representation. This issue is without merit.

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

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


author: CARLTON, J., for the Court.

text:
    Robert S. SCRUGGS a/k/a Robert Samuel Scruggs a/k/a Tac Hammer, Appellant v. Joe CALDWELL, Circuit Clerk of the Circuit Court of Alcorn County, Appellee.
    No. 2006-CP-01942-COA.
    Court of Appeals of Mississippi.
    Oct. 30, 2007.
    Robert S. Scruggs, pro se.
    Robert Joseph Mims, Oxford, attorney for appellee.
    Before KING, C.J., CHANDLER and CARLTON, JJ.
   CARLTON, J., for the Court.

¶ 1. This case comes before the Court on appeal from the dismissal with prejudice of Robert Scruggs’s civil complaint for redress regarding his request for public records entered by the Alcorn County Chancery Court. Finding no error, we affirm the judgment of the chancery court.

FACTS

¶ 2. An Alcorn County grand jury indicted Robert Scruggs on January 23, 1998, for possession of cocaine with intent to sell and for assault on a police officer. After being convicted at trial, Scruggs, who was sentenced as an habitual criminal under Mississippi Code Annotated section 99-19-81 (Rev.2000), received a thirty-year prison term in August of 1998. On January 9, 2006, Scruggs sent his request for public records to the Alcorn County Circuit Clerk, pursuant to Mississippi Code Annotated section 26-61-5 (Rev.2006), seeking several documents, including a certified stamped filed copy of the indictment returned against him by the grand jury, copies of minutes detailing the grand jury proceeding, and the affidavit of the grand jury foreman. On March 31, 2006, Scruggs filed a complaint for redress against the Alcorn County Circuit Clerk in the Alcorn County Chancery Court, pursuant to Mississippi Code Annotated section 25-61-13 (Rev.2006), claiming that the clerk, Joe Caldwell, had not provided him with the requested documents. After an October 10, 2006, hearing in Alcorn County Chancery Court, the chancellor ordered that the circuit clerk make copies of all the documents the clerk’s office had in its possession regarding Scruggs’s request. The circuit clerk filed a notice of service on October 20, 2006, showing he had sent a certified copy of the indictment, minutes pertaining to the grand jury proceeding, minutes pertaining to the Alcorn County Circuit Court, and copies of all the exhibits related to Scruggs’s criminal case. After receiving the notice of service, the chancellor signed an order dismissing Scruggs’s suit against Caldwell with prejudice. Scruggs now appeals that dismissal, claiming he has been denied access to public records and that the venue for his suit against Caldwell was changed.

DISCUSSION

¶ 3. “This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Sander-son v. Sanderson, 824 So.2d 623, 625-26(¶ 8) (Miss.2002) (citing Kilpatrick v. Kilpatrick, 732 So.2d 876, 880(¶ 13) (Miss.1999)).

¶4. The parties are in agreement as to what Mississippi Code Annotated section 25-61-5 (Rev.2006) requires of the circuit clerk with regard to Scruggs’s request for documents. Their dispute lies in whether or not the circuit clerk actually provided the documents Scruggs requested. While Scruggs is insistent that he has not yet received all of the documents he requested, the circuit clerk’s office claims to have sent everything he requested that was in the clerk’s office. Anything that had not been sent, the clerk claimed, either did not exist or was not kept in his office. Regardless, after hearing arguments for both sides at the hearing on October 10, 2006, the chancellor ordered that all the documents which Scruggs sought, and which the clerk actually had, be copied and turned over to Scruggs. The circuit clerk later sent a notice of service as proof that they had indeed sent the requested documents and exhibits to Scruggs. The chancellor was satisfied that the documents had been provided to Scruggs and dismissed the suit with prejudice, seeing “no further legitimate controversy between the parties.” The circuit clerk has no obligation under the statute to provide documents that do not exist or to create documents to satisfy a public records request. Accordingly, we agree with the chancellor that there is no further legitimate controversy between Scruggs and Caldwell, and the chancellor properly dismissed the case.

¶ 5. Scruggs also argues that the chancellor changed the venue for the hearing from Alcorn County Chancery Court to Lee County, as his hearing was held in the Tupelo Justice Center rather than in Al-corn County. We find this argument to be without merit, as the hearing was still docketed as being in the Alcorn County Chancery Court. Scruggs also claims that the Chancery Court of Lee County entered the final judgment of dismissal in his case, but the order in the record clearly shows that it was filed in the Alcorn County Chancery Court. According to Mississippi Code Annotated section 25-61-13 (Rev.2006), “[proceedings arising under this section shall take precedence on the docket over all other matters and shall be assigned for hearing and trial at the earliest practicable date and expedited in every way. Such suits may be heard in term-time or in vacation.” Chancery court was not in term in Alcorn County on October 10, 2006. As Lee and Alcorn Counties are both in the first chancery court district, the chancellor could have presided over the hearing in either county.

¶ 6. Because there has been no showing that the chancellor was manifestly wrong or clearly erroneous in dismissing Scruggs’s complaint, we affirm the judgment of the chancery court.

¶ 7. THE JUDGMENT OF THE CHANCERY COURT OF ALCORN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ALCORN COUNTY.

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


author: CHANDLER, J.,

text:
    Amanda Rochelle BROWN, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00717-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2007.

      Charles E. Miller, McComb, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, C.J., CHANDLER and CARLTON, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. The appellant, Amanda Brown, was tried in the Circuit Court of Pike County for the murder of Lakisha Russ. After a five-day trial, the jury convicted her of manslaughter. The judge sentenced her to twenty years in the custody of the Mississippi Department of Corrections, with four years suspended and four years of post-release supervision. Aggrieved by her conviction, Brown appeals. She asserts the following points of error:

I. The evidence was insufficient to support a conviction; therefore, a judgment notwithstanding the verdict should have been granted.
II. The indictment should have been dismissed or a mistrial granted when testimony of prior bad acts was introduced.
III. The arrest was illegal.
IV. Denial of jury instructions.
V. The appellant was tortured.
VI. The judge should have ordered a competency hearing.
VII. The testimony of Latonya McKnight should have been suppressed.
VIII. The appellant was shackled in front of the jury.
IX. The sentence constituted cruel and unusual punishment and was unconstitutional under the Eighth Amendment.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On May 21, 2005, 911 dispatch received a call that the decedent, Lakisha Russ, had stabbed herself. Officers of the McComb Police Department arrived at Amanda Brown’s apartment shortly after the call and found Russ lying in the doorway of the apartment. The appellant, Brown, and another woman at the scene, Latonya McKnight, had apparently decided that the ambulance was taking too long and had tried to put Russ in the car to take her to the hospital.

¶ 4. Russ was taken to the hospital where she was pronounced dead from a stab wound to her left shoulder area. When questioned about the incident, Brown told officers that Russ had stabbed herself. She said that she and Russ were lovers and that she had told Russ that she was leaving her. Upset by the news, Brown said Russ went into the kitchen, came back with a knife, and took her own life. McKnight said she witnessed the event and confirmed Brown’s story.

¶ 5. The two women were taken to the police station where they reaffirmed the accounts they gave at the scene. Officer Leanne Slipher, lead investigator for the case, and Detective James Cowart testified that there were some discrepancies with the women’s accounts, so they questioned McKnight again. They informed her that she could be charged as an accomplice for withholding information concerning the crime. Eventually, McKnight changed her story and said that it was Brown who stabbed Russ. She said Brown and Russ had gotten into an argument, and Russ had begun to remove her clothes from Brown’s apartment. McKnight then said that Russ went to the kitchen, and when she came back, Brown stabbed her. According to McKnight, Brown then told McKnight to say that Russ stabbed herself. Based on McKnight’s statement, Brown was arrested and charged with the murder of Russ.

¶ 6. McKnight later wrote a statement that said she did not see anyone stab Russ. At trial she claimed that Brown’s family had pressured her into writing the statement. She also reiterated her statement implicating Brown and stated that it was the truth. She admitted that her first statements to the police and the most recent written statement were lies. She claimed that she told the falsehoods because she did not want Brown to go to jail and because she was afraid of not saying what Brown and her family wanted her to say.

¶ 7. While investigating the apartment, officers noticed large amounts of blood on the floor and walls of the hallway. The officers also found blood in the bedroom and what appeared to be blood on the pillow and on the comforter on the bed. The knife that caused the victim’s wound was found down the hall. In the bedroom closet was a box of knives with two missing. They were like the knife used to stab Russ. Besides the knife recovered in the hall, there was also another matching knife in the dishwasher in the kitchen. According to the crime lab technician, no fingerprints were recovered from the knife that caused the injury because of the texture of the handle and the excessive amount of blood that covered it.

¶ 8. Percy Pittman, the Pike County coroner, found that Russ’s cause of death was a “massive chest injury due to [a] stab wound” and classified the death as a homicide. Dr. Stephen Hayne performed an autopsy on Russ and testified as an expert. Dr. Hayne similarly concluded that Russ died from a stab wound that severed the brachial artery on the left side of her body, which led to massive blood loss. He also found the manner of death to be homicide, which he defined as the taking of another person’s life by a second party. Dr. Hayne testified that it would have been very difficult, essentially impossible, for Russ to have caused the injury to herself. He based his conclusion on the angle of the wound and the force necessary to cause the injury. Furthermore, Dr. Hayne testified that, in his experience, a suicide usually involves a gunshot, hanging, drugs, or slash wounds to the wrists, neck, or insides of the elbows.

¶ 9. At the conclusion of the five-day trial, the jury convicted Brown of manslaughter. The judge sentenced her to twenty years with four years suspended and four years of post-release supervision. She now appeals her conviction and sentence and cites a bevy of issues.

ISSUES AND ANALYSIS

I. Sufficiency of the evidence

¶ 10. Brown’s first allegation of error is that the evidence was not sufficient to support her conviction of manslaughter. She argues that McKnight’s testimony was not corroborated by any of the police officers and was, therefore, unreliable. She also argues that the State’s case was based entirely on circumstantial evidence, in which event it should have been held to a higher burden of proof. Because of the

alleged unreliability of McKnight’s testimony and circumstantial nature of the case, Brown claims that the trial court erred by denying her motion for a judgment notwithstanding the verdict.

¶ 11. In reviewing a trial court’s denial of a motion for a judgment notwithstanding the verdict, we must look at the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843(¶ 15) (Miss.2005). We will ask whether the evidence shows “ ‘beyond a reasonable doubt that accused committed the act charged and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’ ” Id. at 843(1116) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). Taking the evidence in the light most favorable to the verdict, the question is whether a rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. Id. at 843(¶ 16) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 12. In this case, Brown was convicted of manslaughter. Mississippi Code Annotated section 97-3-35 (Rev.2006) provides that “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.” In the alternative, Mississippi Code Annotated section 97-3-47 (Rev.2006) provides that “[e]very other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter.”

¶ 13. To support its case, the State presented the murder weapon, McKnight’s eyewitness testimony that Brown stabbed Russ during an argument, the testimony of various police officers, and the conclusions of the coroner and the doctor who performed the autopsy. The defense had the opportunity to cross-examine McKnight and bring out the fact that she initially agreed with Brown’s account. Brown also took the stand and gave her own version of what happened that night. The jury, therefore, had the opportunity to hear both accounts. Viewing the evidence most favorably to the verdict, a rational trier of fact could have found all elements of manslaughter beyond a reasonable doubt. Bush, 895 So.2d at 843(¶ 16). We find this evidence was sufficient and reliable to support the conviction of Brown.

¶ 14. Next, Brown is correct in her recitation of the standard for a circumstantial evidence case. When a case is based wholly on circumstantial evidence, the State must prove the defendant’s guilt beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence. Jones v. State, 918 So.2d 1220, 1237(¶ 43) (Miss.2005). However, a circumstantial evidence instruction is proper only if the case is based wholly on circumstantial evidence. Sheffield v. State, 749 So.2d 123, 126(¶ 12) (Miss.1999). A circumstantial evidence instruction is not proper if the case contains both circumstantial evidence and direct evidence such as eyewitness testimony. Id.

¶ 15. In this case, the State presented direct evidence in the form of McKnight’s eyewitness testimony. In her brief, Brown even refers to McKnight’s testimony in the sentence immediately preceding her claim that the State’s case was based entirely on circumstantial evidence. Because the State presented McKnight’s eyewitness testimony, this was not a circumstantial evidence case, and there was no need to give a circumstantial evidence instruction.

¶ 16. We find there was sufficient evidence to convict Brown of manslaughter; therefore, the trial court properly denied her motion for a judgment notwithstanding the verdict. Brown’s last assertion, that McKnight was an unreliable informant, is irrelevant to the issue of whether the evidence was sufficient to convict her. This issue is without merit.

II. Testimony concerning Brown’s prior bad acts

¶ 17. Brown next alleges that the court erred by allowing testimony concerning her prior bad acts. She claims that the court allowed police officers and other witnesses to testify that she previously stabbed her stepfather. Because this type of testimony is prohibited by Rule 404(b) of the Mississippi Rules of Evidence, Brown argues that the court should have dismissed her indictment or granted a mistrial when this testimony was elicited.

¶ 18. Having reviewed the record, we find no mention of the State’s introduction of evidence that Brown stabbed her stepfather. The only reference to this bad act we find is in an audiotape introduced by and played to the jury by the defense. Contrary to Brown’s assertions on appeal, the State objected to the playing of the tape in court.

¶ 19. “The general rule is that a defendant may not, himself, introduce evidence at trial and then assert on appeal that the admission of the evidence constituted reversible error.” Isom v. State, 928 So.2d 840, 849(¶ 24) (Miss.2006) (quoting McCullough v. State, 750 So.2d 1212, 1215(¶ 9) (Miss.1999)). Because Brown introduced the tape and played it to the jury, she cannot now assert that it is reversible error on appeal. This argument is without merit.

III. Illegal arrest

¶20. In her third point of error, Brown takes issue with her arrest and the reliability of McKnight. Brown claims that as a result of McKnight’s uncorroborated testimony, she was arrested, held, and questioned without probable cause. She then concludes that her arrest was illegal.

¶ 21. The supreme court provided the following guidance on the issuance of warrants:

To make an arrest for a felony, either with or without a warrant, a police officer must have (1) reasonable cause to believe that a felony has been committed; and (2) reasonable cause to believe that the person proposed to be arrested is the one who committed it. Arrest warrants or search warrants shall be issued only by the judge after a judicial determination that probable cause exists based upon the affidavit or other evidence before the court. The United States Supreme Court has established a totality of the circumstances standard for determining the existence of probable cause: The task of the issuing magistrate is simply to make a practical, common-sense decision based on all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information.

State v. Woods, 866 So.2d 422, 425(¶ 10) (Miss.2003) (citations omitted).

¶ 22. Based on the police investigation and the conclusions of the coroner and the doctor who performed the autopsy, there was reasonable cause to believe a homicide had been committed. From McKnight’s account and the circumstances surrounding Russ’s death, there was also probable cause to arrest Brown for Russ’s murder.

¶ 23. In support of Brown’s argument that her arrest was illegal, she cites State v. Woods, 866 So.2d 422 (Miss.2003), for the proposition that uncorroborated information from a confidential informant is insufficient to support a search warrant. Woods is inapplicable to the present case, however, because McKnight was not a confidential informant. Furthermore, there was corroborating information that suggested that Brown might have killed Russ and that it was not a suicide. Brown and Russ got into an argument that night. Some of Russ’s clothes had been removed from Brown’s apartment. There was also a box of knives in the bedroom closet that matched the knife used to stab Russ. While McKnight did change her story, it was consistent with the evidence, and none of the police officers who interviewed her believed that McKnight’s initial story was true.

¶ 24. Because we find there was probable cause to arrest Brown, we find that her arrest was legal. Brown’s arguments to the contrary are without merit.

IV. Denial of jury instructions

¶ 25. Brown next takes issue with the court’s denial of certain defense jury instructions. Brown lists four jury instructions and claims their denial was “tantamount to a violation of [her] constitutional rights.” She cites no authority for why it was improper for the court to deny the instructions. The four instructions are summarized as follows: (1) that the testimony of an accomplice “is to be considered and weighed with great care and caution,” (2) a circumstantial evidence instruction, (3) that Brown’s testimony must be taken as true if she was the only eyewitness to the homicide, and (4) that the testimony of a witness who testifies in exchange for pay, immunity from prosecution, or for personal advantage must be examined with greater caution.

¶ 26. Rule 28(a)(6) of the Mississippi Rules of Appellate Procedure provides that the appellant’s brief “shall contain the contentions of the appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes and parts of the record relied on.” In this case, Brown cites no authority for her contention that the instructions were improperly denied, nor does she provide any argument to support her contention. Failure to support an issue with citations to authorities will bar this Court from considering it. Britt v. State, 844 So.2d 1180, 1183(¶ 9) (Miss.Ct.App.2003). Furthermore, reading the jury instructions as a whole, we find they fairly announce the law of the case and create no injustice nor reversible error. Milano v. State, 790 So.2d 179, 184(¶ 14) (Miss.2001).

V. Torture

¶ 27. Brown next argues that she was tortured while incarcerated at the Pike County Sheriffs Department. According to Brown’s claim, officers “conducted an attack on [her] and other persons in the jail.” Her claim stems from an incident when an officer sprayed mace in a cell during an inmate disturbance. Brown combines this allegation with a claim that the police were to provide her proper medical care and argues that her due process rights were violated. Because of the alleged torture, Brown argues that her case should have been dismissed.

¶ 28. Brown cites us to no authority for her proposition that the trial court should have dismissed the case based on the alleged torture by the Sheriffs Department. The authority she does cite provides that the Due Process Clause of the Fourteenth Amendment requires “the responsible government or governmental agency to provide medical care to persons ... who have been injured while being apprehended by the police.” City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983). The rule that Brown may have been entitled to medical care provides no basis for this Court to find that dismissal of the charges against her was the proper remedy for any injury she may have suffered at the hands of the Sheriffs Department. This issue is without merit.

VI. Competency of Brown

¶ 29. Brown’s next claim seems to be that, because she was a twenty year old minor and pregnant, she was not competent to stand trial. She argues that her mental state warrants dismissal of the case against her. Her argument at trial was similarly lacking in that she argued that she was incompetent to stand trial because she was pregnant and was in pain.

¶ 30. Rule 9.06 of the Uniform Rules of Circuit and County Court Practice provides as follows:

If before or during the trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court in accordance with § 99-13-11 of the Mississippi Code Annotated of 1972.

We have previously stated that a “defendant not competent to stand trial is one who does not have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, or does not have a rational as well as a factual understanding of the proceedings against him.” Carter v. State, 932 So.2d 850, 855(¶ 19) (Miss.Ct.App.2006) (quoting Gammage v. State, 510 So.2d 802, 803 (Miss.1987)).

¶ 31. As in Carter, we do not find the defendant presented sufficient evidence to support her claim that a mental examination was necessary. Id. at 855(¶ 20). Brown did not assert any mental incompetency until the fifth day of trial. The judge, after consulting Rule 9.06 and hearing argument from the defense, found that there was no reasonable ground to believe that Brown was not competent to aid in her defense. Specifically, the judge noted that he had observed Brown for more than four days of the trial, and she appeared quite competent. He found that Brown’s arguments in favor of the motion — that she was pregnant, experienced stomach pain, and the alleged mistreatment by the sheriffs departmenU-were insufficient to necessitate a competency hearing and thereby delay the trial in progress.

¶ 32. The judge denied Brown’s request for a hearing and instead allowed her to submit affidavits in support of her claim of incompetence. He stated that if the affidavits were sufficiently probative of her incompetence they could warrant a hearing at a later date.

¶ 33. In addition to the lack of evidence to indicate Brown was incompetent is the fact that she later took the stand at trial and presented rational testimony. Accordingly, we find that the trial judge properly considered the issue of Brown’s competence and properly denied her request for a mental examination.

VII. Suppression of evidence

¶ 34. Next, Brown argues that the trial court erred by failing to suppress physical evidence including but not limited to audiotapes, the murder weapon, and photographs of the crime scene. According to Brown’s argument, because McKnight gave conflicting accounts, “the investigation leading to the arrest was illegal. Thus, the arrest was illegal.” She concludes that “[a]ll such evidence illegally obtained should be suppressed as fruit of the poisonous tree.”

¶ 35. Brown again cites to Woods and argues that her arrest was illegal. As we stated above, however, Woods is inapplicable to the present case. We also found that Brown’s arrest was supported by probable cause and was legal. Because her arrest was supported by probable cause, there is no merit to her assertion that the police illegally obtained the listed evidentiary items.

¶ 36. Nevertheless, Brown argues that the “audiotape, knife, photographs, etc.” should have been suppressed. She does not cite any authority that supports this proposition, however. Not only was Brown’s arrest legal but most of the evidence was recovered before her arrest. The knife was recovered at the crime scene. The photos represented the crime scene and the wounds to the victim’s body. There were a number of audiotapes placed in evidence, and Brown does not specify with which of them she takes issue. As we previously stated, the defense introduced these tapes and played them at trial; therefore, she may not complain about them now.

¶ 37. We apply an abuse of discretion standard when reviewing a trial court’s ruling on a matter of evidence. Mingo v. State, 944 So.2d 18, 26(¶ 14) (Miss.2006). In this case, not only was Brown’s arrest legal but the majority of the evidence was recovered before her arrest. We find that it was not an abuse of discretion for the trial court to allow the introduction of the evidence of which Brown now complains. This issue is without merit.

VIII. Shackling of Brown

¶ 38. In this point of error, Brown claims that jurors were present at a time when she was shackled. She argues that this alleged incident warranted the dismissal of her case because a defendant is protected from appearing before the jury in restraints unless necessary.

¶ 39. Brown cites Hickson v. State, 472 So.2d 379 (Miss.1985), in support of her argument. The court in Hickson, however, did not rule on whether reversal was required when the defendant was handcuffed in court for approximately thirty to forty-five minutes. Id. at 383. Furthermore, Hickson relied on Rush v. State, 301 So.2d 297, 300 (Miss.1974), which found that failure to remove a defendant’s handcuffs for a short time because of an oversight was not grounds for reversal.

¶ 40. The record reflects that it was at most questionable if any of the members of the venire saw Brown in handcuffs. Testimony indicates that one member of the venire may have seen Brown in the hall on the morning in question when she would have been handcuffed. That member clarified that, while she saw Brown, she did not notice her in handcuffs. She also stated that she had not talked to anyone else on the venire about seeing Brown that morning. Nevertheless, the court excused that venire member. Another venire member brought into chambers stated she did not see Brown that morning. When the remaining members of the venire were then asked if they had seen Brown on the morning in question, none of them indicated they had seen her. There were members of an unrelated grand jury in the hall who could have seen Brown in handcuffs, but that is irrelevant.

¶ 41. Because no members of the venire indicated that they saw Brown on the morning in question, this issue is without merit. Even if someone had seen her, similar to Rush, it would only have been momentarily and would not have been sufficient to require reversal.

IX. Whether the sentence constitutes cruel and unusual punishment

¶42. Lastly, Brown takes issue with her sentence of twenty years, with four years suspended and four years of post-release supervision. She cites the Eighth Amendment as authority for her argument that the sentence constitutes cruel and unusual punishment. She would have this Court find that the sentence imposed is disproportionate to her crime.

¶ 43. Because Brown did not raise this issue at the trial level, this Court is now barred from considering it on appeal. Ferrell v. State, 810 So.2d 607, 611(¶ 19) (Miss.2002). Nevertheless, this claim also fails on the merits. A sentence that is within the guidelines provided for by the legislature will not be considered cruel and unusual. Id. at 611(¶ 20). Mississippi Code Annotated section 97-3-25 (Rev.2006) provides for a maximum sentence of twenty years for manslaughter. Brown’s sentence of twenty years with four years suspended and four of years post-release supervision is within the statutory guidelines. This issue is without merit.

¶ 44. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FOUR YEARS SUSPENDED AND FOUR YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

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

      . The State's brief refers to the victim as Lakisha Ross; however, the autopsy report and the other documents in evidence list her last name as Russ.

      . The appellant's brief incorrectly notes that the sentence is twenty years with five years suspended.