text:
    Lucretia Antoinette WHITE, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00244-COA.
    Court of Appeals of Mississippi.
    June 12, 2007.

      Ross R. Barnett, Jackson, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Lucretia Antoinette White was found guilty of aggravated assault upon Albert Johnson, III on August 17, 2005. White cut Johnson across his chest and upper right arm during an altercation at Johnson’s home. White was sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections, with ten years to serve, five years suspended, and five years on post-release supervision. She was also fined $2,500 and ordered to pay $4,639.81 in restitution to the Crime Victims’ Compensation Fund. Aggrieved, White appeals, arguing:

I. WHETHER THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

II. WHETHER THE COURT’S SENTENCE WAS GROSSLY DISPROPORTIONATE AND UNCONSTITUTIONAL.

FACTS

¶ 2. On September 11, 2004, Johnson and a few friends held a cookout at Johnson’s house. White discovered that she had not been invited and went to the house. White and Johnson had been involved “off and on” romantically for approximately ten months. They had been involved in prior disputes. When White arrived at the party, she noticed a couple of females in Johnson’s bedroom. White and Johnson proceeded to argue, wherein White slashed at Johnson with an object attached to her keychain. Johnson was cut across his chest and upper right arm. A friend from the party took Johnson to the hospital where he received numerous stitches in his arm and surgical staples in his chest.

¶ 3. Initially, Johnson did not wish to press charges against White. He said that he and White had “talked and worked everything out.” The police allowed the matter to drop at that time. One month later, however, Johnson returned to the police station and told an officer that he had changed his mind and wanted to file charges against White. White was subsequently charged with aggravated assault.

¶ 4. White was indicted in January 2005 for aggravated assault. The indictment charged that White cut Johnson with “a sharp instrument” across Johnson’s “chest and upper right arm.” She was convicted of aggravated assault on August 17, 2005.

¶ 5. At trial, no witness could attest to what the sharp object was and no one saw White actually cut Johnson. However, one witness said that he saw White make a “hand motion” and that Johnson was subsequently bleeding and stated, “this b — - done cut me.” Johnson testified that he was bleeding after the argument, but he did not describe how the cuts occurred and the record indicates he never saw White with any weapon. Another witness stated that White admitted to cutting Johnson. White denied making any inculpatory statements. She was convicted.

LAW AND ANALYSIS

I. WHETHER THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 6. White argues that the evidence does not support a conviction for aggravated assault because there were no eyewitnesses to prove what exactly happened between Johnson and White and no one actually saw White with a weapon. White was convicted of aggravated assault pursuant to section 97-3-7(2) (Rev.2006), which states in pertinent part:

A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; and, upon conviction, he shall be punished by imprisonment in the county jail for not more than one (1) year or in the Penitentiary for not more than twenty (20) years.

¶ 7. White contends that Johnson choked her during their argument and a sharp object from her key chain must have cut Johnson as she was trying to stop him from throttling her. She also maintains that even if she did attack Johnson, there was no evidence that she intended to do him grievous bodily harm, which is required under the aggravated assault statute. On appeal, White also states that Johnson’s cuts were inflicted purely by accident, involving no criminal intent. However, White did not raise an “accidental” defense until this appeal.

¶ 8. It is well settled that the jury is the sole arbiter for matters involving the weight and credibility to be accorded the evidence. Spicer v. State, 921 So.2d 292, 311(¶ 38) (Miss.2006). We will reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that “reasonable and fair-minded jurors could only find the accused not guilty.” Id.

¶ 9. When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Herring v. State, 691 So.2d 948, 957 (Miss.1997). We have stated that, on a motion for a new trial, the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947(¶ 18) (Miss.2000). The evidence should be weighed in the light most favorable to the verdict. Herring, 691 So.2d at 957.

¶ 10. Here, no new trial is warranted because we find that the evidence, when weighed in the light most favorable to the verdict, supports the jury’s resolution of the conflicting testimony.

¶ 11. Seven witnesses testified on behalf of the State during its case-in-chief, including the victim, Johnson, and Linda Quarles, a friend of White’s, who testified about inculpatory statements made by White. White went to Quarles’s apartment after the altercation with Johnson. According to Quarles, White admitted to cutting Johnson. However, White denies making any such inculpatory statement.

¶ 12. Johnson testified that during their argument, White swung at him and it “felt like she had punched me in the chest.” He then noticed blood on White’s hand and told her that she was bleeding. She responded, “No, you’re bleeding.” Johnson looked down and saw blood pouring down his arm. When White saw the blood, she left the house. Later that night, Johnson met with White outside of Quarles’s apartment. He stated that over the course of their conversation, White admitted to cutting him. White apologized and when asked why she cut Johnson, she replied that she “lost her mind” when “she thought the females ... were putting on a freak show for me.”

¶ 13. Johnson further stated that he changed his mind about pressing charges against White when she threatened him approximately one month after the altercation. She called Johnson and told him not to press charges against her or she would “f— me up on sight” and “[t]his time I’m going to kill your a-.”

¶ 14. Another partygoer, Robert “Pops” Bell, testified that he observed White and Johnson argue on the front porch and saw a “hand motion” from White during the argument. Afterwards, Johnson came back inside and said, “this b.done cut me.” When Bell opened up Johnson’s shirt, blood began to pour out of Johnson’s chest. Bell stated that he never heard Johnson threaten White or make any threatening gestures towards her.

¶ 15. On the record, the weight of the evidence presented by the State supported the jury’s verdict. Accordingly, we find that the trial court did not err in overruling White’s motion for a new trial. We find that the evidence presented does not preponderate heavily against the verdict. Therefore, this argument is without merit.

II. WHETHER THE COURT’S SENTENCE WAS GROSSLY DISPROPORTIONATE AND UNCONSTITUTIONAL.

¶ 16. White contends that the court mandated an unduly harsh sentence that does not pass constitutional muster. While White acknowledges that the trial court may exercise discretion in sentencing as long as the term does not exceed the maximum allowed by statute, she asserts that her sentence constitutes reversible error given the circumstances of this case. We disagree.

¶ 17. The trial court sentenced White to fifteen years, with ten to serve and five years of post-release supervision. Twenty years is the maximum sentence that can be imposed for an aggravated assault. Miss.Code Ann. § 97-3-7(2). As a general rule, sentencing is within the trial court’s discretion and will not be disturbed on appeal if the sentence is within the term provided by statute. Davis v. State, 724 So.2d 342, 344(¶ 7) (Miss.1998). However, a sentence that is “grossly disproportionate” to the crime committed is subject to attack on Eighth Amendment grounds. Id.

¶ 18. We do not find White’s sentence to be “grossly disproportionate” to the crime committed. The fifteen-year sentence, with ten to serve and five years of post-release supervision, was well within the statutory guidelines. The trial court noted that aggravated assault is a very serious crime. The court also considered the fact that White had a relatively clean record, with no prior felony convictions, and that White had been consistently employed. The trial judge is in the best position to hear and evaluate the relevant evidence, and we can find nothing in the record to indicate that an abuse of discretion occurred. Accordingly, we affirm the trial court’s sentence.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY OF AGGRAVATED ASSAULT AND SENTENCE OF FIFTEEN YEARS, WITH FIVE YEARS SUSPENDED, TEN YEARS TO SERVE, AND FIVE YEARS OF POST-RELEASE SUPERVISION, TO PAY A FINE OF $2,500 AND RESTITUTION OF $4,639.81 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    James WATTS, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-01057-COA.
    Court of Appeals of Mississippi.
    June 12, 2007.

      Wilbert Levon Johnson, attorney for appellant.
    Office Of The Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., BARNES, ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the COURT.

¶ 1. James Watts, Jr. was convicted of burglary of a dwelling following his trial by jury in the Circuit Court of Tunica County. He was sentenced to serve a term of ten years imprisonment with the Mississippi Department of Corrections with five years suspended. The circuit court denied Watts’s motion for judgment notwithstanding the verdict or, in the alternative, motion for new trial. Aggrieved by the court’s decision, Watts appeals. Finding no error, we affirm.

FACTS

¶2. On or about February 7, 2006, a Tunica County grand jury indicted Watts for one count of burglary of a dwelling. A jury trial was held on May 2, 2006, at which time the State presented testimony of at least six witnesses, two of whom testified as eye and ear witnesses to the burglary.

¶ 3. On September 11, 2005, the home of Kimberly Pearson was burglarized during the nighttime hours. Shelia McKay, a detective with the Tunica County Sheriffs Department, testified that she received the complaint regarding a burglary at Pearson’s residence. McKay then went to Pearson’s residence, photographed the scene, and took a statement from Pearson. It was apparent that someone had entered the residence by breaking a bedroom window. The back door of the house appeared to have been kicked open from the inside, in order to remove the items. McKay testified that she attempted to lift prints from the scene but was not able to obtain any due to the older condition of the wood framed house. McKay then testified that Pearson later telephoned her and provided information regarding the whereabouts of certain items taken from Pearson. Upon further investigation, McKay was able to recover several of the items reported missing, including a Phillips television and four tires with the rims on them, at the home of Thomas Moore. A five disc stereo was also recovered; however, those items were discovered at Anthony Vaughn’s residence. All of the recovered items were identified by Pearson as items missing from her house. Ultimately, all of the items removed from Pearson’s home were recovered by the sheriffs department, except for a DVD player and a 31” television.

¶ 4. The State then presented testimony by Antonio Vaughn, Demetric Vaughn, and Anthony Vaughn. All three witnesses were in the vicinity of Pearson’s home on the night of September 11, 2005. Specifically, all three stated they were at Linda Vaughn’s house during the hours the burglary took place, which according to testimony by Antonio, is located “side by side” to Pearson’s house. Antonio and Demetric, both minors, testified they heard the sound of glass breaking and that they observed items being taken out the back door of Pearson’s home and placed on the lawn. Antonio stated that he submitted a written statement to the police about three days after the burglary occurred regarding what he had seen and heard on the evening of September 11, 2005. At the request of law enforcement eighteen days after the burglary, Demetric gave her statement regarding what she had seen and heard on the evening of September 11, 2005. Furthermore, both witnesses made positive in-court identifications of Watts being the man they observed around 10:00 p.m. at Pearson’s home. Anthony Vaughn also testified that he was in the area and heard a noise “like something breaking” around 9:00 p.m. on or about September 11th.

¶ 5. After the State rested its case-in-chief and Watts’s motion for directed verdict was overruled, Watts chose not to testify on his behalf. He was informed by the court of his constitutional rights to testify or not testify, and he then rested without producing any witnesses. Closing arguments were heard by the jury, and after deliberating a little more than thirty minutes it unanimously found Watts guilty of burglary of a dwelling. On May 8, 2006, Watts filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, arguing the verdict was against the overwhelming weight of the evidence. That motion was subsequently denied. He filed a motion for a rehearing on May 24, 2006 that was also denied. A sentencing hearing was held on May 31, 2006, at which time Watts was sentenced to ten years imprisonment with the Mississippi Department of Corrections with five years suspended and five years to serve. The following issues are before the Court on appeal:

I. Whether the trial court erred in denying Watts’s motion for a new trial.
II. Whether the trial court erred in denying Watts’s motion for directed verdict and motion for JNOV.

ISSUES AND ANALYSIS

I. Whether the trial court erred in denying Watts’s motion for a new trial.

¶ 6. A motion for a new trial challenges the weight of the evidence. Beckum v. State, 917 So.2d 808, 812(¶ 10) (Miss.Ct.App.2005) (citing Carr v. State, 774 So.2d 469, 472(¶ 15) (Miss.Ct.App.2000)). Upon review of a trial court’s denial of a motion for a new trial, this Court must consider the evidence in the light most favorable to upholding the verdict. Id. at 813(1114). We will only reverse a trial court’s decision when convinced that there was an abuse of discretion in failing to grant a new trial. Dudley v. State, 719 So.2d 180, 182(¶ 7) (Miss.1998) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). We must also keep in mind that it is the jury’s responsibility to resolve matters regarding the weight of the evidence and the credibility of witnesses. Beckum, 917 So.2d at 813(¶ 14). It is a fundamental principle of law that a jury verdict will not be disturbed except in the most extreme of situations. Washington v. State, 800 So.2d 1140, 1144(¶ 10) (Miss.2001) (citing Manning v. State, 735 So.2d 323, 333(¶ 10) (Miss.1999)). “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Walker v. State, 881 So.2d 820, 831(¶ 32) (Miss.2004) (citing Dudley, 719 So.2d at 182(¶ 8)); Dilworth v. State, 909 So.2d 731, 737 (¶¶ 20-21) (Miss.2005).

¶ 7. In the present case the weight of the evidence supports the jury’s determination that Watts was guilty. Though Watts does point out various inconsistencies with the eyewitness testimony in his argument for a new trial, those inconsistencies are not enough to disturb the jury’s determination of the weight and credibility of those testimonies. A review of the trial transcript shows that these inconsistencies were fully explored on cross-examination by Watts’s counsel; therefore, it can be said that a reasonable juror could have found the testimonies credible. Furthermore, Watts did have an opportunity to take the stand and testify in his defense and/or call other witnesses to refute any inconsistencies in the State’s case-in-chief; however, Watts chose not to do so. Watts states in his argument that the State presented “no credible evidence” to support a finding of guilty beyond a reasonable doubt. We disagree.

¶ 8. After reviewing the evidence to support Watts’s conviction, we cannot say that the verdict is not supported by the overwhelming weight of the evidence and to allow it to stand would be an unconscionable injustice. Again, the jury is charged with weighing the evidence and determining the credibility of witnesses. Nobles v. State, 879 So.2d 1067, 1071(¶ 11) (Miss.Ct.App.2004) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). Sheffield v. State, 749 So.2d 123, 128(¶ 17) (Miss.1999), presents a similar situation where Sheffield argued for a new trial upon the grounds that the weight of the evidence presented did not support the jury’s verdict. Sheffield, 749 So.2d at 128(¶ 17). The court noted in Sheffield that there was no need for the reviewing court to determine exactly which witnesses and testimonies the jury chose to believe or disbelieve in reaching its verdict. Id. Furthermore, it is enough that the evidence presented a factual dispute for the jury. Id. (citing Groseclose v. State, 440 So.2d 297, 300 (Miss.1983)).

¶ 9. The jury in Watts’s case determined that the eye and ear witness testimony by Antonio and Demetric, together with Detective Shelia McKay’s testimony regarding her investigation into the burglary, as well as the other three witnesses who testified for the State, was sufficient and credible evidence to unanimously find Watts guilty of burglary of a dwelling. The trial court did not abuse its discretion in denying the motion for new trial in that the evidence, when viewed in light most favorable to the verdict, does support the conviction. This issue is without merit.

II. Whether the trial court erred in not granting Watts’s motion for a directed verdict and motion for JNOV.

¶ 10. The standard of review for post-trial motions, like JNOV, is abuse of discretion. Smith v. State, 925 So.2d 825, 830(¶ 10) (Miss.2006) (citing Brown v. State, 907 So.2d 336, 339(¶ 8) (Miss.2005)). In considering whether the evidence is sufficient to withstand a motion for directed verdict, or a motion for JNOV, the court must determine that a reasonable, fair-minded juror could find that the accused committed the offense charged beyond a reasonable doubt, and that every element of that offense existed, given the evidence presented. Brown, 907 So.2d at 339(¶ 8) (citing Carr v. State, 208 So.2d 886, 889 (Miss.1968)). If the evidence fails to meet this test, then it is insufficient to support a conviction. Carr, 208 So.2d at 889. Therefore, the question to be answered by the reviewing court, in viewing the evidence in a light most favorable to the prosecution, is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Smith, 925 So.2d at 830(¶ 10) (citing Brown, 907 So.2d at 339(¶ 8); Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In other words, reversal on the issue of legal sufficiency can only occur when evidence of one or more of the elements of the charged offense are such that “reasonable and fair-minded jurors could only find the accused not guilty.” Purnell v. State, 878 So.2d 124, 129(¶ 14) (Miss.Ct.App.2004) (citing Hawthorne v. State, 835 So.2d 14, 21 (¶ 31) (Miss.2003)). However, where substantial evidence of such quality and weight exists to support the verdict, and where reasonable and fair-minded jurors may have found the appellant guilty, we must affirm the judgment of the trial court. McClendon v. State, 852 So.2d 43, 47(¶ 11) (Miss.Ct.App.2002) (citing Baker v. State, 802 So.2d 77, 81(¶ 13) (Miss.2001)).

¶ 11. Watts reasserts his argument that the State presented no credible evidence at trial that would support a finding beyond a reasonable doubt that he committed the burglary. Watts again relies on the inconsistencies in the witnesses’ testimony presented by the State. Specifically, he argues the contradicting statements made at trial by Demetric, Anthony, and Antonio Vaughn, relating to their individual recollections from the evening of September 11, 2005, were insufficient to support his conviction. A review of the trial transcript shows that Watts’s counsel thoroughly questioned these witnesses on cross-examination. Watts chose not to testify or to call any witnesses for his defense, even after the court made him aware of his right to testify in his own defense.

¶ 12. It is well settled that the jury has the duty to determine the impeachment value of inconsistencies or contradictions, as well as testimonial defects of perception, memory and sincerity. Blocker v. State, 809 So.2d 640, 645(¶ 18) (Miss.2002) (citing Winters v. State, 449 So.2d 766, 771 (Miss.1984); Jones v. State, 381 So.2d 983, 989 (Miss.1980)). The court has stated numerous times that, even when there are conflicting statements and testimony, it is for the jury to weigh the credibility of testimony and statements. Holmes v. State, 798 So.2d 533, 538(¶21) (Miss.2001). After considering Watts’s argument, we are not convinced that reasonable and fair-minded jurors would find that the evidence presented was insufficient to support a conviction of burglary. The jury had the duty of discerning what witness statements to believe or disbelieve and to reach a verdict based upon the evidence it found to be credible. Based upon the evidence the jury was presented with at trial, this Court finds that there was sufficient evidence to support the elements of the crime of burglary of a dwelling, and that the jury was reasonable in finding Watts guilty. This issue is without merit.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY OF CONVICTION OF BURGLARY OF A DWELLING AND A SENTENCE OF TEN YEARS OF IMPRISONMENT WITH FIVE YEARS TO SERVE AND FIVE YEARS SUSPENDED IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TUNICA COUNTY.

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


author: IRVING, J.,

text:
    Terence TRUITT a/k/a Terence Dontae Mozley Truitt, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00543-COA.
    Court of Appeals of Mississippi.
    June 12, 2007.
    Terence Truitt, Appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. On February 4, 2006, Terence Truitt, pro se, filed a motion for post-conviction relief (PCR) in the Warren County Circuit Court. The circuit court dismissed the motion. Aggrieved, Truitt appeals and asserts that he is entitled to relief because (1) his indictment is improper, (2) he was denied due process of law, (3) his indictment violates the Fifth Amendment’s guarantee against double jeopardy, (4) his counsel was ineffective, (5) his plea was entered involuntarily, and (6) the cumulative effect of his attorney’s errors denied him the right to a fair hearing.

¶ 2. We find no error in the trial court’s decision; therefore, we affirm its judgment.

FACTS

¶3. Truitt was indicted by a Warren County grand jury for one count of murder and for one count of manslaughter in the death of Darrell Kemper. Pursuant to a plea agreement, the State agreed to dismiss the murder charge, and Truitt agreed to enter an open plea of guilty to manslaughter. The court accepted his plea and sentenced him to twenty years in the custody of the Mississippi Department of Corrections.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶4. “When reviewing a lower court’s decision to deny a petition for post conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Brown v. State, 731 So.2d 595, 599(¶6) (Miss.1999) (citing Bank of Mississippi v. S. Mem’l Park, Inc., 677 So.2d 186, 191 (Miss.1996)). However, questions of law are reviewed de novo. Id.

1. Indictment

¶ 5. Truitt’s first and third issues pertain to his indictment; thus, we will discuss those issues together. Truitt first asserts that his indictment is improper because it charges him with both murder and manslaughter of the same individual. We note at the outset that this issue is procedurally barred due to Truitt’s guilty plea, because “a valid guilty plea admits all elements of a formal charge and operates as a waiver of all non-jurisdictional defects contained in an indictment or information against a defendant.” Reeder v. State, 783 So.2d 711, 720(¶ 36) (Miss.2001) (citing Brooks v. State, 573 So.2d 1350, 1352 (Miss.1990)). Procedural bar notwithstanding, we conclude that nothing prohibits the State from indicting a defendant for murder and manslaughter in the death of the same individual. Rule 7.07(A) of the Uniform Rules of Circuit and County Court provides:

Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense if: (1) the offenses are based on the same act or transaction; or (2) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan.

¶ 6. Moreover, in Williams v. State, 794 So.2d 1019, 1025(1135) (Miss.2001) (quoting Corley v. State, 584 So.2d 769, 772 (Miss.1991)), the Mississippi Supreme Court stated: “in allowing a multi-count indictment, this Court agreed with the Legislature that the offenses must be based on the same act or transaction, or be based on two or more acts or transactions, connected together or constituting parts of a common scheme or plan.” Counts I and II relate to the “same act or transaction,” the death of Kemper; thus, the indictment charging Truitt with murder and manslaughter is proper.

¶ 7. Truitt also argues that his indictment is improper because it violates the Fifth Amendment guarantee against double jeopardy which provides that “no person shall be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const., amend. V. The Mississippi Supreme Court has held that “[djouble jeopardy protection applies to successive prosecutions for the same criminal offense.” Cook v. State, 671 So.2d 1327, 1331 (Miss.1996) (citing United States v. Dixon, 509 U.S. 688, 697, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993)). Truitt pleaded guilty to manslaughter and was never prosecuted for murder; thus, he was not “twice put in jeopardy of life or limb.” Therefore, Truitt’s argument that his indictment violates the Fifth Amendment’s guarantee against double jeopardy is misplaced. We find no merit to this allegation of error.

g. Voluntariness of Guilty Plea

¶ 8. Truitt attacks his guilty plea on three fronts. First, Truitt claims that he was denied due process of law because he entered his plea pursuant to advice from his attorney. Second, Truitt alleges that his plea was entered due to his attorney’s ineffective assistance. Third, Truitt asserts that he lacked knowledge of the elements of the crime to which he pleaded guilty.

¶ 9. In actuality, Truitt is arguing that his plea was entered involuntarily because his attorney assured him that he would not be sentenced to more than ten years in prison. Truitt further argues (1) that his attorney coerced him into pleading guilty, (2) that his attorney failed to conduct a full investigation of the facts and circumstances surrounding Kemper’s death, and (3) that his attorney relied solely on discovery material furnished by the State.

¶ 10. The record before us does not contain a transcript of Truitt’s guilty plea proceeding, which we note was Truitt’s responsibility to provide. “[A]n appellant is responsible for bringing to our attention and presenting to this Court a record of trial proceedings sufficient to undergird his assignments of error.” Winters v. State, 473 So.2d 452, 457 (Miss.1985). However, Truitt’s petition to enter a plea of guilty contradicts his assertions. The following language is found in Truitt’s petition:

I know that if I plead “Guilty to this charge (these charges), the possible sentence is ... 20 (maximum) years imprisonment. ...
I told my lawyer of all of the facts and circumstances known to me about the charge(s) against me. I believe my lawyer is fully informed on all such matters. My lawyer has counseled and advised me of the nature of each charge; on any and all lesser included charges; and on all possible defenses that I might have in this case.
My lawyer has advised me as to the probabilities of my conviction of the charges with which I am charged and throughly discussed all aspects of my case with me. My lawyer has made no threats or promises of any type or kind to induce me to enter this plea of guilty, however; and the decision to seek the entry of this plea was my own and mine alone, based on my own reasons and free from any outside coercive influences.

Based on Truitt’s sworn petition, we find that one could reasonably conclude that Truitt understood the elements of the charges against him, despite his contentions to the contrary. We find no merit to this issue because the record belies Truitt’s assertion that his plea was not knowingly and intelligently entered. “Solemn declarations in open court carry a strong presumption of verity.” Harris v. State, 806 So.2d 1127, 1130(¶ 9) (Miss.2002) (quoting Baker v. State, 358 So.2d 401, 403 (Miss.1978)). Although we have found that Truitt entered a valid guilty plea, we will briefly discuss his ineffective assistance of counsel claim.

¶ 11. It is well established that “to prevail on a claim of ineffective assistance of counsel, a defendant must prove that his attorney’s performance was deficient, and that the deficiency was so substantial as to deprive the defendant of a fair trial.” Hiter v. State, 660 So.2d 961, 965 (Miss.1995) (citing Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Thus, Truitt must show sufficient deficiency in his counsel’s performance to constitute prejudice to his defense. Walker v. State, 703 So.2d 266, 268 (Miss.1997) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). However, Truitt failed to demonstrate how the outcome of his case would have been different had his attorney performed the acts which Truitt alleges he was deficient for failing to perform. The Mississippi Supreme Court has held that “[assertions of error without prejudice do not trigger reversal.” Jones v. State, 912 So.2d 973, 977(¶ 16) (Miss.2005) (citing Nicholson ex rel. Gollott v. State, 672 So.2d 744, 751 (Miss.1996)).

¶ 12. Furthermore, we return to Truitt’s plea petition to show that his allegations of error are clearly contradicted by his sworn statement. The following statement is also in Truitt’s plea petition:

I believe my lawyer has done all that anyone could do to counsel and assist me. I AM SATISFIED WITH THE ADVICE AND HELP HE HAS GIVEN ME. I recognize that if I have been told by my lawyer that I might receive probation or a light sentence, this is merely his prediction and is not binding on the Court.

We find no merit to this issue.

3. Cumulative Error

¶ 13. Finally, Truitt contends that the cumulative effect of the alleged errors requires reversal. However, the Mississippi Supreme Court has stated that where “there is no reversible error in any part, ... there is no reversible error to the whole.” Simmons v. State, 813 So.2d 710, 717(¶ 42) (Miss.2002) (quoting Coleman v. State, 697 So.2d 777, 787 (Miss.1997)). This issue is without merit.

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

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


author: BOLIN, Justice. SEE, Justice WOODALL, Justice

text:
    Dr. Rita W. PATTON and Frank Kay Psychiatric Clinic v. Marty THOMPSON, administrator of the estate of Peggy Sue Ellis, deceased.
    1031809.
    Supreme Court of Alabama.
    Nov. 9, 2006.

      Randal H. Sellers and Joseph L. Reese, Jr., of Starnes & Atchison, LLP, Birmingham, for appellants.
    Kenneth E. Riley of Farris, Riley & Pitt, L.L.P., Birmingham, for appellee.
   BOLIN, Justice.

Dr. Rita W. Patton and her employer, the Frank Kay Psychiatric Clinic, the defendants below, were granted permission to appeal from the trial court’s order denying Dr. Patton and the Clinic’s “Rule 50(b)[, Ala. R. Civ. P.,] Renewed Motion for Judgment as a Matter of Law, or, Alternatively Styled, Motion for a Summary Judgment.” See Rule 5, Ala. R.App. P. The trial court certified the following controlling question of law:

“The controlling question of law is the degree of proof necessary to establish the essential element of proximate causation in a medical malpractice/wrongful death action against a psychiatrist for the suicide of that psychiatrist’s patient and whether the plaintiff in this case has met that requisite degree of proof.”

Factual Background and Procedural History

Peggy Sue Ellis suffered from and had been treated for a serious psychiatric illness for approximately 30 years when she was admitted to Baptist Medical Center Montclair (hereinafter “BMCM”) on November 11, 1999. She had previously been hospitalized for management of her psychiatric illness, and she had a history of suicide attempts. Before her November 11, 1999, admission, Ellis had been admitted three times to BMCM in 1999 for management of her psychiatric illness. Dr. Patton was Ellis’s physician during all of her admissions in 1999.

Ellis was admitted to BMCM on November 11, 1999, following a suicide attempt. Dr. Patton prescribed Seroquel, a psychotropic agent used to treat schizophrenia. Ellis was placed on a suicide watch in the hospital; the watch continued during her hospital stay. Her condition waxed and waned during her stay. Her condition regressed from November 18 to November 19, and the dosage of her medication was increased. On November 22, 1999, when Ellis was asked whether she would hurt herself, she replied “I hope not.” That same day, Ellis stated that she was scared and worried, and she showed signs of paranoia and unreasonable fears regarding her family. She also stated that she was anxious about being discharged the next day.

Ellis was discharged on November 23, 1999, with a discharge plan formulated by Dr. Patton. The plan included: (1) a follow-up appointment with Ellis’s therapist at the Eastside Mental Health Center for the next morning; (2) arrangements for daily visits by a home-health psychiatric nurse to monitor Ellis’s mental state and to monitor compliance with the prescribed medication; and (3) help from Ellis’s cousin in monitoring compliance with the prescribed medication.

On November 24, 1999, Ellis went to the Eastside Mental Health Center, where she was evaluated by her therapist. The therapist noted that Ellis had been unable to fill her prescription for Seroquel and that she was confused about her medications, obsessed with psychotic thoughts, and frightened and that she had an “inappropriate and blunted affect.” Dr. Patton was unaware that Ellis had not been able to fill her prescription. On November 26, 1999, Ellis was found dead in her apartment of a drug overdose. The coroner determined that the manner of death was suicide. At the time of her death, Ellis was 53 years old.

On November 19, 2001, Marty Thompson, as administrator of Ellis’s estate, sued Dr. Patton and the Clinic, alleging wrongful death under the Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-541 et seq., Ala.Code 1975 (“the AMLA”). Thompson alleged that Dr. Patton had breached the standard of care by discharging Ellis from the hospital prematurely, failing to formulate an appropriate outpatient-treatment plan, failing to readmit Ellis to a psychiatric unit, and failing to implement proper suicide precautions.

At trial on March 19, 2004, Dr. Nathan Strahl, a psychiatrist, testified as an expert witness for Thompson. Dr. Strahl had reviewed Ellis’s medical records, and his testimony regarding causation was as follows:

“Q. ... In your opinion, given your review of the records and your understanding of Ms. Ellis’s condition on 11/23/99, was there a probability that she would attempt suicide or self harm if she was released from the hospital?
“A. That was a probability. The probability increases the more factors that she would carry leaving the hospital that are risk factors for suicide.
“Q. And did Ms. Ellis possess many of these risk factors?
“A. She did.
“Q. Was it highly probable?
“A. It was highly probable that she might do something to herself, yes.
“Q. Doctor, in your opinion, should a treating psychiatrist, given what we know and what you have reviewed about Ms. Ellis, exercising reasonable care, diligence and skill have recognized this probability that you just testified to?
“A. I would think so, yes, sir.
“Q. I think you just answered my next question, but I want to ask it so the record is clear. Strictly concerning this discharge which you have criticized today, given the facts and circumstances that you’re aware of in Ms. Ellis’s condition on 11/22/99, what would be the standard of care or what would the standard of care have dictated on the date concerning discharge?
“A. In my medical opinion, with the night before, the statements about T hope so,’ reservations about not being suicidal, the continued psychotic features, I would be very concerned about discharge. Usually, the record shows some anxiety typically prior to discharge. I would not count that as a negative factor. Most patients would have some anxiety about leaving. But here we’re having clear indication of psychotic symptoms and concerns that she voiced last night about being able to take care of herself in terms of safety. I think based on those two things, hospitalization [sic] is a bit premature.
“Q. Doctor, did Ms. Ellis’s discharge fall below the recognized standard of care for a psychiatrist?
“A. In my medical opinion, it did.” Dr. Strahl also testified as follows:
“Q. And, Doctor, I want to clarify that, so let me ask you these questions. Did the standard of care dictate that Dr. Patton keep Ms. Ellis in the hospital beyond November 28,1999?
“A. My medical opinion, it did.
“Q. Doctor, do you have an opinion as to whether suicide was an eminent potential given Ms. Ellis’s release on November 23,1999?
“A. Yes.
“Q. And what is that opinion?
“A. That it was.”

Dr. Patton and the Clinic moved for a judgment as a matter of law at the close of Thompson’s case, which the trial court denied. Dr. Patton and Dr. Joseph Lucas, a psychiatrist, testified for the defense. Dr. Patton and the Clinic again moved for a judgment as a matter of law at the conclusion of all the evidence. The trial court denied the motion. The jury was unable to reach a verdict, and the trial court declared a mistrial. Dr. Patton and the Clinic filed a motion entitled “Defendants’ Rule 50(b)[, Ala. R. Civ. P.,] Renewed Motion for a Judgment as a Matter of Law, or, Alternatively Styled, Motion for a Summary Judgment.” In that motion, they argued that Thompson failed to meet his burden of producing sufficient evidence to prove that Dr. Patton’s alleged negligence was the proximate cause of Ellis’s death. The trial court denied the motion in the following order:

“Having given careful consideration to [Dr. Patton and the Clinic’s] renewed motion for judgment as a matter of law, the court is of the opinion that [the] motion is due to be denied. Using the standard set out in Keeton v. Fayette County, 558 So.2d 884 (Ala.1989), the court finds that [Thompson] has proffered sufficient evidence that a genuine issue of material fact exists, so as to allow this case to proceed to trial.
“In Keebler v. Winfield Carraway Hospital, 531 So.2d 841 (Ala.1988), the Supreme Court held that recovery for failure to prevent a suicide is dependent upon whether the defendant reasonably should have anticipated that the deceased would attempt to harm [herself]. Alabama law bases proximate causation in suicide cases on the foreseeability of the decedent’s suicide. The Supreme Court has held foreseeability is legally sufficient if the deceased had a history of suicidal proclivities or manifested suicidal proclivities in the presence of the defendant or was admitted to the facility of the defendant because of a suicide attempt. Keeton, 558 So.2d at 887. The record is clear — Ms. Ellis had a history of recent suicide attempts and a suicide attempt was the primary indication for her admission to [BMCM] preceding her final discharge and subsequent suicide. Further, the record indicates Ms. Ellis continued to experience some suicidal proclivities during her final hospitalization at [BMCM]. The record also indicates Dr. Patton was aware of the manifestations of suicidal proclivities during [Ellis’s] final hospitalization.
“Having reviewed the record as a whole, it is this court’s opinion [that Thompson] met the required threshold of proof that a reasonable jury could reach the conclusion that Ms. Ellis’s suicide was proximately caused by [Patton and the Clinic’s] negligence.”

This Court granted a permissive appeal under Rule 5, Ala. R.App. P., to answer the previously quoted controlling question of law.

The first part of the controlling question of law asks what degree of proof is necessary to establish the essential element of proximate cause in a medical-malpractice/wrongful-death action against a psychiatrist resulting from the suicide of the psychiatrist’s patient. Dr. Patton and the Clinic contend that there is “an ostensible conflict between the case law discussing the concepts of foreseeability and proximate cause in suicide cases [i.e., Keebler v. Winfield Carraway Hosp., 531 So.2d 841 (Ala.1988), and Keeton v. Fayette County, 558 So.2d 884 (Ala.1989),] and the case law discussing the ‘probably caused [the death in question]’ standard of proof required in medical malpractice cases [§ 6-5-549, Ala. Code 1975].” (Petition to appeal p. 7.) According to Dr. Patton and the Clinic, applying Keebler and Keeton dispenses with the requirement in § 6-5-549 that a plaintiff in a medical-malpractice action produce substantial evidence showing that the alleged breach of the standard of care “probably caused” the death in question. Put another way, they argued that if Kee-bler and Keeton apply because the death was by suicide, then a plaintiff would not need to present expert testimony as to the issue of causation because proximate cause would be established if the decedent had a history of suicidal proclivities or manifested suicidal proclivities in the presence of the defendant or was admitted to the defendant’s facility because of a suicide attempt.

Thompson argues that Alabama courts have firmly distinguished the evidentiary requirements of a typical medical-malpractice case from a medical-malpractice case resulting from a patient’s suicide. Thompson argues that he established proximate causation by satisfying all three of the criteria set out in Keebler and Keeton. He further argues that § 6-5-549 of the AMLA, as amended, did not affect prior precedent with regard to proximate cause and that whether Dr. Patton’s alleged negligence was the proximate cause of Ellis’s death is a question of whether Ellis’s suicide was foreseeable.

Discussion

This Court first addressed a caregiver’s duty to guard against a patient’s suicide in Keebler v. Winfield Carraway Hospital, 531 So.2d 841 (Ala.1988). In Keebler a rescue squad was summoned to assist a man lying in a bed complaining of chest pains. They took the man to the emergency room, and the emergency-room physician diagnosed him as suffering from probable alcohol abuse, possible drug abuse, and chest pains. The man’s son said the man had been drinking and that he could have ingested the sedative Valium, so the emergency-room physician pumped the man’s stomach to prevent an overdose. The emergency-room physician also administered nitroglycerin to alleviate the chest pains and attempted to admit the man to the hospital. When the man continued to act disorderly and refused to enter his hospital room, the emergency-room physician contacted the police. The police told the man he would have to go to his room and, if he did not, that he would be taken to jail. The man refused to obey, and he was taken into custody. A couple of hours later, the man was found dead in a jail cell; he had hung himself by tying one end of a T-shirt around his neck and the other to a bar of the jail door.

The man’s wife sued the emergency-room physician, among others, alleging wrongful death. The trial court granted the emergency-room physician’s motion for a directed verdict at the close of the wife’s case. On appeal, the wife argued that the emergency-room physician had abandoned his duty of care toward the man. This Court stated that her argument presupposed that the physician owed the man a duty to continue medical treatment after he left the emergency room and that the existence of such a duty depended on whether the physician knew that the man was likely to commit suicide. This Court stated:

“Making a physician’s duty to guard against a suicide conditional on its foreseeability is a prudent rule and one consistent with our own decisions. In Mobile Infirmary v. Eberlein, 270 Ala. 360, 369, 119 So.2d 8, 17 (1960), we stated that ordinarily no one is required to guard against or take measures to avert that which a reasonably prudent person under the circumstances would not anticipate as likely to happen. In Jackson [v. Burton, 226 Ala. 483, 147 So. 414 (1933),] a medical malpractice case in which we addressed the issue of whether a physician abandoned his duty to render medical treatment at a critical stage of a patient’s illness, we stated: ‘[W]hen a physician has undertaken the treatment of a patient whose condition, known to the physician, is such that without continuous or frequent expert attention, he is likely to suffer injurious consequences, he must either render such attention himself or see that some other competent person does so.’ 226 Ala. at 485, 147 So. at 416.
“In the case sub judice, [the wife] failed to introduce any evidence indicating that [the physician] should have reasonably foreseen her husband’s suicide. Although [the wife’s expert] testified that the combined effects of alcohol and Valium pose a calculable risk that a patient may attempt suicide, this evidence does not create an inference that [the husbandjs suicide should have been reasonably foreseen by [the physician]. [The wife] had the burden to show through expert testimony that [the physician] breached his duty to exercise such reasonable care, diligence, and skill as reasonably competent physicians in the national medical community ordinarily would in the same or similar circumstances. Code 1975, 6-5-484(a). Drs. Lane, Bryant, Eubanks & Dulaney v. Otts, 412 So.2d 254 (Ala.1982); Dobbs v. Smith, 514 So.2d 871 (Ala.1987). [The wife] predicates her malpractice claim on the theory that [the physician] should have foreseen her husband’s imminent self-destruction and then should have taken precautionary measures to prevent it from happening. However, [the expert’s testimony did not satisfy the ‘unique quality of proof of the alleged wrongdoing’ required in medical malpractice cases. Hines v. Armbrester, 477 So.2d 302 (Ala.1985). [The expert] did not testify as to the national medical standard of care. Specifically, [the expert] did not testify that reasonably competent physicians within the national medical community when treating a patient who had ingested Valium and alcohol would view suicide as a reasonably foreseeable contingency to be guarded against, and that [the physician] breached the standard of care ordinarily exercised by other physicians in the national medical community by failing to foresee and to guard against [the husband]’s suicide. Moreover, the record did not indicate that [the husband] had a history of suicidal proclivities, that he manifested suicidal proclivities while at the hospital, or that he was admitted due to a suicide attempt. Arguably, such facts as these, if known to [the physician], would have rendered the contingency of suicide reasonably foreseeable. See Knuth, Civil Liability for Causing or Failing to Prevent Suicide, 12 Loy. L.A.L.Rev. 967, 991 (1979). Thus, [the wife] failed to meet her burden. The evidence presented at trial did not create a fact question as to whether [the physician] should have foreseen [the husband]’s suicide. Therefore, the trial court correctly ruled, as a matter of law, that [the physician] was under no duty to render continuous attention to prevent the likely occurrence of [the husband]’s suicide. Jackson, supra.”

Keebler, 531 So.2d at 845. Therefore, Kee-bler does not concern itself with the element of proximate causation as set out in the controlling question. Rather, the duty the emergency-room physician owed to the deceased did not include a standard of care to protect against or to prevent suicide, because there was an absence of factors that would have made the patient’s suicide foreseeable, thereby triggering such a duty.

In Keeton v. Fayette County, 558 So.2d 884 (Ala.1990), the father of a teenager who died as a result of a self-inflicted hanging while confined in the county jail sued the County. The trial court entered a summary judgment in favor of the County. This Court held that the County had voluntarily undertaken the duty to provide cells for the detention of youthful offenders in the jail, which was generally used for the confinement of adults. In Keeton, this Court held that it was reasonably foreseeable as a matter of law that minors might attempt to harm themselves while incarcerated in a county jail, based upon § 12-15-61, Ala.Code 1975, addressing facilities to be used for the detention or shelter care of children, and the county jail manual adopted by the County in order to obtain approval by the Department of Youth Services to use county jail cells typically used for adult prisoners for the detention of juveniles.

“There was evidence before the trial court when it granted Fayette County’s motion for summary judgment that one reason for requiring the monitoring of a juvenile offender confined to a jail cell is to make certain that the juvenile does not injure himself. Therefore, the fact that juveniles may attempt to harm themselves when incarcerated was reasonably foreseeable as a matter of law. This is different from Keebler v. Winfield Carraway Hospital, 531 So.2d 841 (Ala.1988), where it was held that foreseeability of a decedent’s suicide is legally sufficient only if the deceased had a history of suicidal proclivities, or manifested suicidal proclivities in the presence of the defendant, or was admitted to the facility of the defendant because of a suicide attempt.”

Keeton, 558 So.2d at 887. This Court reversed the summary judgment entered in favor of the County. Keeton is similar to Keebler in that both concern a duty to the deceased. Keeton is distinguishable from Keebler in that a duty to protect incarcerated juveniles was imposed upon the County because it was foreseeable that juveniles in that situation might attempt to harm themselves. Both Keebler and Keeton deal with the duty owed, based upon the presence or absence of the foreseeability of suicide, rather than the proximate-causation issue presented by the trial court in the controlling question here.

In City of Crossville v. Haynes, 925 So.2d 944 (Ala.2005), this Court applied the holding in Keebler in a wrongful-death action involving the suicide of an inmate. In Haynes, the inmate’s estate filed a wrongful-death and negligence action against the City, the police chief, the police officers, and the dispatchers after an inmate committed suicide in the city jail. The trial court entered a summary judgment in favor of the police chief and the police officers on the grounds of police-officer immunity under § 6-5-338(a), Ala. Code 1975, and/or under State-agent immunity pursuant to Ex parte Cranman, 792 So.2d 392 (Ala.2000). The estate’s claims against the City and the dispatchers went to trial, and a jury found in favor of the dispatchers concluding that they had not acted negligently or wantonly. However, the jury returned a verdict against the City on the estate’s claim of negligent training and awarded damages in the amount of $550,000, which was remitted to $100,000 pursuant to § 11-93-2, Ala.Code 1975.

On appeal, the City in Haynes argued that the trial court erred in allowing the negligent-training claim to go forward against the City, when the estate failed to show that the inmate had manifested suicidal proclivities in the presence of the individual defendants and, thus, had failed to show that the inmate’s suicide was foreseeable. The inmate was arrested on a worthless-check warrant and never made any actual or implied threat to harm himself. The individual defendants knew only that the inmate had become irate on one occasion when he wanted to go outside to smoke and later apologized for his behavior, that he had mentioned to one of the officers that he had had a nervous breakdown and that a tornado had destroyed his business, that he had soiled his pants when he first came to the city jail, that he had requested some unidentified medication, and that he had asked to speak with a drug-enforcement agent.

This Court in Haynes concluded that the evidence did not rise to the level necessary to establish that the individual defendants could have or should have reasonably foreseen that the inmate would commit suicide. “This test of foreseeability remains the law applicable today in determining whether a duty to prevent a suicide exists.” 925 So.2d at 951 (emphasis added).

We note that several of the cases in which this Court has addressed civil liability arising out of a suicide involved custodial cases. See City of Crossville v. Haynes, 925 So.2d 944; Tittle v. Giattina Fisher & Co., Architects, 597 So.2d 679 (Ala.1992); Popham v. City of Talladega, 582 So.2d 541 (Ala.1991); Keeton, 558 So.2d 884. Prison officials have a duty to exercise ordinary and reasonable care for the protection of persons in their custody. This duty generally does not include protection from self-inflicted injury or death. However, the duty can include protection from self-inflicted injury or death when the prison officials knew or should have known that the prisoner might harm himself. The custodial cases have generally followed the foreseeability test set out in Keebler; once a custodian is aware that an inmate has suicidal proclivities, the custodian is on notice that suicide is a possible result and must act accordingly. A foreseeable suicide gives rise to a duty on the custodian’s part. Haynes. The fact that the suicide was foreseeable, however, does not necessarily mean that the custodian’s acts or omissions amounted to negligence. The defendant must exercise reasonable care for the protection of the inmate’s life and health under the circumstances of the particular case. In other words, if the suicide is foreseeable, the custodian owes a duty to try to prevent the suicide. Conversely, in the absence of Keebler and Kee-ton factors in a medical-malpractice action involving a patient who commits suicide, the resulting lack of foreseeability would absolve a health-care provider of any duty to attempt to prevent the suicide.

The analysis in Keebler and Keeton focuses on “duty” in a case alleging negligence. In Keebler, supra, this Court found that there was no duty to prevent the suicide because the suicide there was not foreseeable. In Keeton, supra, once the County voluntarily agreed to provide jail cells for juvenile offenders, it assumed a duty of acting with due care to make certain the juvenile offender did not harm himself. When a patient has a history of suicidal proclivities, has manifested suicidal proclivities in the presence of the defendant, or was admitted to the facility because of a suicide attempt, then the healthcare provider has a duty to take reasonable precautions to prevent a suicide. In the present case, the record supports the trial court’s findings in its order that Dr. Patton knew that Ellis had suicidal proclivities and that she was aware that Ellis had manifested suicidal proclivities during her last hospitalization. Accordingly, Dr. Patton had a duty to take reasonable precautions to prevent Ellis’s suicide. Keebler.

Thompson argues that he established proximate cause by presenting evidence of Ellis’s suicidal proclivities, in conformance with Keebler. However, the Court in Kee-bler addresses foreseeability in the context of duty, not proximate cause. This is evidenced by the Keebler Court’s reframing of the plaintiffs argument from abandonment of duty to whether the doctor and hospital owed Keebler a duty and its holding that the existence of such a duty depends on whether the doctor knew or should have known that Keebler was likely to commit suicide. The Keebler Court addresses duty but not causation. Furthermore, the Keebler Court pretermitted any discussion of whether the trial court erred in excluding testimony on the question of proximate cause.

Although Thompson has, in his medical-malpractice action, established that Dr. Patton owed a duty to Ellis based on Keebler, he must prove, generally through expert testimony, that there was an applicable standard of care, that Dr. Patton breached that standard, and that the breach was a proximate cause of Ellis’s injuries. Lyons v. Walker Reg’l Med. Ctr., 791 So.2d 937 (Ala.2000). With regard to proximate cause, this Court has stated:

“A plaintiff in a medical-malpractice action must also present expert testimony establishing a causal connection between the defendant’s act or omission constituting the alleged breach and the injury suffered by the plaintiff. Pruitt v. Zeiger, 590 So.2d 236, 238 (Ala.1991). See also Bradley v. Miller, 878 So.2d 262, 266 (Ala.2003); University of Alabama Health Servs. Found., P.C. v. Bush, 638 So.2d 794, 802 (Ala.1994); and Bradford v. McGee, 534 So.2d 1076, 1079 (Ala.1988). To prove causation in a medical-malpractice action, the plaintiff must demonstrate ‘ “that the alleged negligence probably caused, rather than only possibly caused, the plaintiffs injury.” ’ Bradley, 878 So.2d at 266 (quoting University of Alabama Health Servs., 638 So.2d at 802). See also DCH Healthcare Auth. v. Duckworth, 883 So.2d 1214, 1217 (Ala.2003)(‘ “There must be more than the mere possibility that the negligence complained of probably caused the injury.” ’ (quoting Parker v. Collins, 605 So.2d 824, 826 (Ala.1992))); and Pendarvis v. Pennington, 521 So.2d 969, 970 (Ala.1988)C “The rule in medical malpractice cases is that to find liability, there must be more than a mere possibility among others that the negligence complained of caused the injury; there must be evidence that the negligence probably caused the injury.” ’ (quoting Williams v. Bhoopathi, 474 So.2d 690, 691 (Ala.1985), and citing Baker v. Chastain, 389 So.2d 932 (Ala.1980))).”

Sorrell v. King, 946 So.2d, 854, 862 (Ala.2006).

We do agree with Thompson that a medical-malpractice action based on a patient’s suicide is different from a general medical-malpractice action because in the former the patient’s death is at his own hands. The Illinois Court of Appeals, in discussing the propriety of jury instructions in an action against a health-care provider arising out of the provider’s treatment of a patient with suicidal ideas, stated:

“[T]his case is different than the typical medical malpractice case because plaintiff here alleges medical malpractice by a psychiatrist treating a suicidal patient who ultimately committed suicide. The critical distinction between this case and all other medical malpractice cases is that here the patient does not share the goal of his physician of getting better; while the doctor is working to assist the patient to suppress suicidal tendencies, the patient, by the nature of his illness, may be working at cross-purposes to his doctor’s suggestion and may not be interested in following instructions designed to enable him or her to safely take prescribed medication.”

Peoples Bank of Bloomington v. Damera, 220 Ill.App.3d 1031, 1035, 581 N.E.2d 426, 429, 163 Ill.Dec. 475, 478 (1991).

The trial court in its order denying the defendants’ motion for a judgment as a matter of law blurred the distinction between the different elements necessary to establish medical malpractice when it stated, based on Keebler and Keeton: “Alabama law bases proximate causation in suicide cases on the foreseeability of the decedent’s suicide.” However, the answer to the first part of the controlling question is that the plaintiff in any medical-malpractice action, including medical-malpractice/wrongful-death actions against a psychiatrist resulting from the suicide of that psychiatrist’s patient, must prove by substantial evidence that the psychiatrist breached the applicable standard of care and that that breach was a proximate cause of the patient’s injuries.

The second part of the question certified by the trial court is whether Thompson met the burden of proof in this case regarding proximate cause. “ ‘[I]t is well established that the question of proximate cause is almost always a question of fact ....’” Norris v. City of Montgomery, 821 So.2d 149, 155 n. 8 (Ala.2001)(quoting Lemond Constr. Co. v. Wheeler, 669 So.2d 855, 862 (Ala.1995)). Pursuant to Rule 5, Ala. R.App. P., an interlocutory order should be certified for appeal when “the interlocutory order involves a controlling question of law as to which there is substantial ground for difference of opinion, that an immediate appeal from the order would materially advance the ultimate termination of the litigation, and that the appeal would avoid protracted litigation.” “In other words, Rule 5 is not a vehicle by which to obtain review of ‘significant and unresolved factual issues.’ ” Gowens v. Tys. S., 948 So.2d 513, 530 (Ala.2006)(quoting Spain v. Brown & Williamson Tobacco Corp., 872 So.2d 101, 104 (Ala.2003)) (emphasis added in Gowens). Accordingly, we decline to review whether Thompson has met the burden of proof regarding proximate cause.

Summary

In summary, we answer the first part of the controlling question of law as follows: The plaintiff in a medical-malpractice action against a psychiatrist arising out of the suicide of the psychiatrist’s patient must prove by substantial evidence that the psychiatrist breached the applicable standard of care and that the breach was a proximate cause of the patient’s death. Accordingly, the trial court erred in concluding that Thompson had established proximate cause based simply on the duty analysis in Keebler and Keeton. We decline to address the factual question of whether Thompson met the burden of proof regarding proximate cause. Consequently, we reverse the judgment of the trial court and remand this case to the trial court for further proceedings.

REVERSED AND REMANDED.

HARWOOD, STUART, and PARKER, JJ., concur.

SEE, J., concurs in part in the rationale and concurs in the result.

NABERS, C.J., and LYONS, WOODALL, and SMITH, JJ., dissent.

SEE, Justice

(concurring in part in the rationale and concurring in the result).

The question certified to us is as follows:

“The controlling question of law is the degree of proof necessary to establish the essential element of proximate causation in a medical malpractice/wrongful death action against a psychiatrist for the suicide of that psychiatrist’s patient and whether the plaintiff in this case has met that requisite degree of proof.”

I believe that the answer to the first question is that the degree of proof required is substantial evidence. I do not believe the second question can be answered adequately without an elaboration of those elements that must be proven by substantial evidence.

I concur with the main opinion that the plaintiff in a medical-malpractice action against a psychiatrist alleging the wrongful death of a patient by suicide must prove by substantial evidence the applicable standard of care, that the psychiatrist breached that standard of care, and that the breach proximately caused the patient’s death. Alabama Medical Liability Act, § 6-5-548(a), Ala.Code 1975; Lyons v. Walker Reg’l Med. Ctr., 791 So.2d 937 (Ala.2000). I also agree with the main opinion that

“[t]he trial court in its order denying the defendants’ motion for a judgment as a matter of law blurred the distinction between the different elements necessary to establish medical malpractice when it stated, based on Keebler and Keeton: ‘Alabama law bases proximate causation in suicide cases on the foreseeability of the decedent’s suicide.’ ”

958 So.2d at 312. I do not see in the record an explication of what the applicable — national—standard of care is; therefore, the statement by the plaintiffs expert that Dr. Patton’s treatment was a breach of that standard is without adequate basis. I also do not find testimony indicating that Dr. Patton’s treatment caused Ellis’s suicide.

Even if Dr. Patton’s treatment fell below the applicable standard of care, it is not sufficient to say that there was a breach of the standard of care “and” that the patient committed suicide. In other circumstances, liability for a negligent breach of the applicable standard of care requires the demonstration of causation, not simply a showing of temporal proximity. Bradley v. Miller, 878 So.2d 262, 266 (Ala.2003)(“ ‘To prove liability in a medical malpractice case, the plaintiff must prove (1) the appropriate standard of care, (2) the doctor’s deviation from that standard, and (3) a proximate causal connection between the doctor’s act or omission constituting the breach and the injury sustained by the plaintiff.’ ”). The suicide may have been unrelated to the breach.

I agree with the main opinion that “ ‘Rule 5 is not a vehicle by which to obtain review of “significant and unresolved factual issues” ’ however, in this case, the plaintiff failed to establish what the national standard of care is. Therefore, in answer to the second question presented, namely, “whether the plaintiff in this case has met that requisite degree of proof,” I would conclude that the plaintiff has not.

WOODALL, Justice

(dissenting).

The main opinion, by declining to review whether Thompson met the proper burden of proof regarding proximate cause, has held, in effect, that this case does not involve “a controlling question of law as to which there is substantial ground for difference of opinion,” as required for a Rule 5, Ala. R.App. P., permissive appeal. Consequently, the Court should withdraw its permission and dismiss this appeal.

NABERS, C.J., and LYONS and SMITH, JJ., concur.

      . The AMLA provides that in any medical-malpractice action “the plaintiff shall have the burden of proving by substantial evidence” that the health-care provider failed to exercise the requisite care, skill, and diligence, § 6-5-548(a), and that “the minimum standard of proof required to test the sufficiency of the evidence to support any issue or fact shall be proof by substantial evidence.” § 6-5-549. The legislature, in 1996, added the following sentence to § 6-5-549: "In the case of a jury trial, the jury shall be instructed that in order to return a verdict against a health care provider, the jury shall be reasonably satisfied by substantial evidence that the health care provider failed to comply with the standard of care and that such failure probably caused the injury or death in question.” Act No. 96-511, § 3, Ala. Acts 1996 (emphasis added). A jury in a medical-malpractice case now must be instructed that it can return a verdict for the plaintiff only if the plaintiff has proven his case by substantial evidence. See Edgeworth v. Family Chiropractic & Health Ctr., P.C., 940 So.2d 1011 (Ala.2006)(discussing the 1996 amendment to the AMLA).