source: Caselaw Access Project

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text:
    CITY OF GREENVILLE, Mississippi v. John H. JONES and Monica Jones.
    No. 2003-CA-02640-SCT.
    Supreme Court of Mississippi.
    March 30, 2006.

      Timothy Dale Crawley, Vaterria La-shaunda McQuitter, Ridgeland, attorneys for appellant.
    Willie L. Bailey, Willie Griffin, Green-ville, attorneys for appellees.
   CARLSON, Justice,

for the Court.

¶ 1. In this Mississippi Tort Claims Act case, the City of Greenville appeals from the circuit court’s final judgment entered for the plaintiffs subsequent to a bench trial. Finding error by the Circuit Court of Washington County, we reverse and render judgment here in favor of the City of Greenville.

FACTS AND PROCEEDINGS IN THE CIRCUIT COURT

¶2. On August 15-16, 1999, four bomb threat calls were placed to the E-911 dispatcher at the Greenville Police Department (GPD). On August 15, an unidentified caller stated, in two separate calls, that a bomb had been placed in the GPD. On August 16, an unidentified caller stated, in two separate calls, that a bomb had been placed in Greenville’s T.L. Weston High School. While law enforcement officials were concerned about the safety of the personnel and citizens occupying the GPD building, their greater concern was understandably focused on the high school due to the potential serious harm to the children. After the calls of August 16, police officers and fire department personnel and vehicles were immediately dispatched to Greenville-Weston High School, which was evacuated.

¶ 3. The GPD utilized the CADS system which had the capability of tracing these 911 calls. A check of the CADS system revealed that all four threatening phone calls had been made from a cellular telephone serviced by Cellular South, a division of Telepak, Inc. After receiving a circuit court order directing Telepak to release certain phone records for the relevant dates and times, the GPD in due course received a packet from Telepak which purportedly contained the name of the person owning the cellular phone from which the threatening calls had been placed. Five pages of this six-page packet were generated from a search conducted by a Telepak employee. This search revealed that all four of the bomb threat calls had been placed from a cellular phone bearing a particular phone number. Unfortunately, when this same Telepak employee entered the phone number information into the Telepak system in order to determine the name of the owner of the cellular phone bearing this phone number, he transposed two of the numbers and thus inadvertently entered into the system the wrong phone number. When this incorrect information was entered into the system, the resulting data revealed that the cellular phone bearing the transposed phone number belonged to John H. Jones. Thus, page two of the packet revealed that Jones owned the cellular phone bearing the transposed phone number; however, pages 3-6 of the packet revealed that the four bomb threat calls had been placed from the cellular phone bearing the un-transposed phone number.

¶ 4. Upon receiving the Telepak packet the GPD officials, based on the information contained on the second page regarding John H. Jones, sought and received a county court order directing that a warrant be issued for Jones’s arrest. Jones was then arrested and subsequently indicted for the felony offenses of falsely reporting that explosives had been placed in the GPD and T.L. Weston High School. Jones’s public defender, Marie Wilson (who has since become a Chancery Judge for the Ninth Chancery Court District for the State of Mississippi), in reviewing the discovery materials produced in the criminal case, discovered the transposed cell phone numbers. After Wilson brought this information to the attention of the District Attorney, the circuit judge, at the request of the State of Mississippi, entered an order of nolle prosequi, thus ending the criminal prosecution of Jones on these charges.

¶ 5. Approximately ten days after his criminal charges were nolle prossed, Jones and his wife, Monica, commenced civil litigation against Telepak, doing business as Cellular South, as well as Telepak employees who were named as “John Doe” defendants. This suit sought compensatory and punitive damages for Jones and damages for Mrs. Jones on a loss of consortium claim. The complaint was later amended to add the City of Greenville as a defendant, thereby asserting a claim for damages against the City pursuant to the Mississippi Tort Claims Act (MTCA). See Miss.Code Ann. §§ 11-46-1, et seq. (Rev. 2002). The Joneses eventually settled with Telepak, which was dismissed with prejudice by way of a circuit court order, and a second amended complaint was filed against the City of Greenville.

¶ 6. In due course, a bench trial was conducted before the Circuit Court of Washington County, Judge Betty W. Sanders, presiding. At the conclusion of the presentation of the evidence, Judge Sanders took this matter under advisement, and subsequently entered a final judgment finding “that the GPD acted in reckless disregard as to John Jones.” The final judgment also provided for an award of damages in the amount of $95,000 to John Jones, and $500 to Monica Jones.. It is from this final judgment that the City of Greenville now appeals.

DISCUSSION

¶ 7. The City assigns only two errors for us to consider in today’s appeal. We reorder and restate the City’s issues as follows: (1) Whether the circuit court erred in finding the GPD acted in reckless disregard of Jones’s safety and well-being; and, (2) whether the circuit court erred in failing to apportion fault to the settling defendant, Telepak, pursuant to Miss.Code Ann. § 85-5-7. Finding the first issue to be dispositive of this case, we address only this issue.

I. WHETHER THE CIRCUIT COURT ERRED IN FINDING OFFICERS OF THE CITY OF GREENVILLE POLICE DEPARTMENT ACTED IN RECKLESS DISREGARD OF THE SAFETY AND WELL-BEING OF JOHN H. JONES.

¶ 8. Whenever this Court considers on appeal a trial judge’s findings of fact, we appropriately afford deferential treatment. Even though we quite often review circuit court cases based upon judgments entered after a jury trial, whenever we are called upon to consider the findings of fact of a circuit judge sitting without a jury, that circuit judge is entitled to the same deference concerning his/her findings of fact as is afforded to a chancellor, who almost always sits, without a jury. City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000) (citing Puckett v. Stuckey, 633 So.2d 978, 982 (Miss.1993)).

¶ 9. To say that John Jones and his family had to endure an extremely traumatic experience because of the criminal charges brought against Jones is a gross understatement. Wilson’s trial testimony describes her first encounter with Mr. and Mrs. Jones after being appointed to represent Mr. Jones on the criminal charges:

He came with his wife. And — and I was impressed by them because they were such a young couple. And I think during the interview, it came out that they had very young children. They seemed like a nice, sweet young couple, and they were so upset. She was crying. He was crying. It was just a mess, you know, quite frankly.

Jones testified at trial that he and his wife had two young children, an eight-year old daughter and a fifteen-year old son. One can only imagine how a father explains to his children that he has been arrested, jailed and charged with criminal activity.

¶ 10. Thus, that the Joneses are entitled to monetary damages for what has happened to them should hardly be cause for debate. However, as with any civil tort suit for money damages, before considering the issue of damages, the first hurdle a plaintiff must successfully overcome with the trier-of-fact is proof of liability — duty, breach of duty, and proximate causation. In this MTCA case, the plaintiffs have an additional hurdle. The Legislature of this State has expressly declared its intent that as a matter of public policy, the state and its political subdivisions, inter alia, are immune from suit due to any “tortious act or omission” by any employee of the state or its political subdivisions even though such act or omission “may be considered as the exercise or failure to exercise any duty, obligation or function of a governmental, proprietary, discretionary or ministerial nature.” Miss.Code Ann. § 11 — 46—3(1). However, there are exceptions. The MTCA provides, inter alia:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relat- . ing to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury.

Miss.Code Ann. § 11 — 46—9(l)(e). Thus in today’s case, notwithstanding any damages suffered by John and Monica Jones, before they can recover damages against the City of Greenville, they must prove the Green-ville police officers in question, while engaged in the performance of their duties relating to police protection, “acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury.” Id.

¶ 11. Our cases are by now legion where we have defined the phrase “reckless disregard” as it relates to MTCA cases. We have previously stated:

In order to recover under the MTCA, a plaintiff must prove that the officer “acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury.” Miss.Code Ann. § 11-46-9(l)(e); see City ofEllisville v. Richardson, 913 So.2d 973, 977-79 (Miss.2005). “Reckless disregard” has been described by this Court as “a higher standard than gross negligence and ‘embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act.’ ” Collins v. Tallahatchie County, 876 So.2d 284, 287 (Miss.2004) (quoting Turner v. City of Ruleville, 735 So.2d 226, 230 (Miss.1999)).

City of Jackson v. Powell, 917 So.2d 59, 71 (Miss.2005). There is no dispute that at all relevant times, the Greenville police officers were lawfully engaged in the performance of their duties relating to police protection and that John Jones was not engaged in criminal activity at the time this cause of action accrued. This case obviously turns on whether the actions and/or inactions of the Greenville police officers rose beyond the level of mere negligence to that of reckless disregard for the safety and well-being of John Jones so as to remove the City from the statutory exemption from liability which it otherwise enjoys. To make this determination, we must address the facts of this case in much more detail than the brief factual summary we have thus far provided.

¶ 12. Jones asserts, inter alia: (1) a careful review by the GPD officers of the Telepak packet would have revealed that the cell phone number from which the bomb threat calls were made was different from Jones’s cell phone number; (2) Jones and his father-in-law, Reverend G.A. Johnson, continually protested to the GPD that an innocent man had been arrested for these crimes, and the GPD refused to investigate Jones’s claims of innocence; (3) the inaccurate information in the Telepak packet was the sole basis for Jones’s arrest; and, (4) the grossly inadequate GPD investigation resulted in Jones being maliciously prosecuted for felony charges which were later dismissed.

¶ 13. In a very detailed and thorough 15-page Findings of Fact and Conclusions of Law, the trial judge devoted only five paragraphs (approximately one page) to the “reckless disregard” issue. For the sake of emphasis, we set out the trial judge’s entire discussion on this issue:

Before the plaintiffs can recover under the Mississippi Tort Claims Act, Miss. Code Ann. § 11 — 46—9(l)(c), they must prove the GPD [Greenville Police Department] acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury. “In the context of the statute, reckless must connote ‘wanton or willful’, because immunity lies for negligence.” Turner v. Ruleville, 735 So.2d 226, 229 (Miss.1999).
The GPD had inconsistent information in its possession for approximately five days prior to applying for the arrest warrant. They failed to investigate pri- or to executing an affidavit and presenting this affidavit to County Court Judge Vernita Johnson, who executed the arrest warrant. The Court notes the County Court Judge was not presented the entire document from Cellular South.
On August 25, 1999, in addition to the denials and inconsistencies discussed previously, defendants admitted their investigation was inadequate. Under these circumstances, it can be concluded that Sgt. Franks did not objectively have a reasonable belief of who committed the crime prior to the filing of the affidavit for Jones’ arrest.
The GPD failed to adequately investigate this case before obtaining an arrest warrant. They failed, at a minimum, to interview Jones to determine his whereabouts on the day and time of the 911 calls, to determine who had access to his phone on the day and time in question, to determine whether his cell phone had been stolen and whether his phone was operational on the day and time in question.
This Court finds ample evidence that the GPD acted in reckless disregard for Jones (sic) safety and well-being by failing to investigate before obtaining the search warrant.

¶ 14. Major Stacy Hollis, the assistant police chief for the City of Greenville, was the chief of the detective division, and he thus headed up the investigation in the bomb threats case. Major Hollis instructed Lt. Danny Súber, also a member of the detective division: (1) to retrieve copies of the 911 tapes; (2) to direct Detective Daniel Frank to interview the 911 dispatchers as to any description or voice identification of the bomb-threat caller, any background noises, or other information to aid in the identification of the caller; and, (3) to attempt to get a court order to retrieve the cellular phone records. Upon receiving a court order from Circuit Judge Ashley Hines, Lt. Súber retrieved the phone records in order to determine the identity of the Cellular South customer who owned the cell phone from which the 911 calls had been made on August 15,1999, and August 16,1999, during the relevant times.

¶ 15. James A. Torrey, Jr., Judy Whitehead, Rob Mason, and Rebecca Posecai are all employees of Telepak, Inc., which does business under the name Cellular South. Torrey, a Meadville attorney, is general counsel for Telepak; Whitehead is the secretary for the CEO of Telepak; Mason is in Telepak’s Information Technology Department; and, Posecai is Tele-pak’s Greenville store manager. Torrey received a telephone call from Pam Miller, an investigator with the District Attorney’s office in Greenville, concerning the retrieval of certain cellular phone records to investigate the bomb threats. Torrey informed Miller that a subpoena would be necessary. Upon receiving the court-ordered subpoena duces tecum, Torrey contacted Whitehead, who in turn e-mailed Mason as to the requested information. Mason was instructed to retrieve the necessary information concerning the Cellular South customer whose phone was used to place the bomb threat calls to Greenville’s 911 on the dates and during the time frames in question. Mason testified via a sworn affidavit, inter alia:

After I located the four calls to 911, I entered the number in the billing system to identify the name and address of the customer. However, when I entered the numbers into the system, I mistakenly transposed the numerals six and nine. The retrieved data revealed that John Jones was the owner of the cellular telephone with the [transposed] number.... I did not realize the mistake had been made until after this civil suit was filed.
I delivered the raw computer data identifying ... the telephone number from which the four outgoing calls to 911 were made, and a Screen Print of the [transposed] mobile number ... which showed John Jones was the owner of the [transposed] ... to Judy Whitehead.

¶ 16. Upon receiving this information from Mason, Whitehead transmitted to Torrey the raw computer data showing four outgoing calls to 911 from the un-transposed cell phone number, and a Screen Print of the transposed cell phone number indicating John Jones to be the owner of the cellular phone with the transposed number. Torrey then transmitted this information to Posecai in Greenville with instructions to deliver this information directly to Lt. Súber. As instructed, Posecai telephoned Lt. Súber who drove to the Greenville Cellular South store and retrieved this information from Posecai.

¶ 17. This packet of information, which was introduced into evidence at trial (twice) as Exhibit No. P-8 and Exhibit No. D-15, consists of six pages. The first page is a telecopier cover letter from Torrey to Posecai. The second page contains information as follows:

1. MOBILE NO .[transposed no.]
2. ACTIVATION DATE.05/12/1999
3. FIRST NAME .JOHN
4. LAST NAME .JONES
5. HOME PHONE.XXXXXXXXXX
6. ADDRESS.XXXXXXXXXX
7. CITY.GREENVILLE
8. STATE.MS
9. ZIP CODE.38701
10. SOCIAL SECURITY NUMBER.XXXXXXXXX
11. SALESMAN NUMBER.58
12. ESN .XXXXXXXXXXX
13. STATUS.P
14. SERIAL/RECEIPT NUMBER XXXXXX
15. INITIAL PAYMENT LESS SERVICE CONNECT/TA.50.00
16. LOCATION.D1
17. DEACTIVATE DATE.

The third, fourth, fifth and sixth pages contain the following information at the top of each page:

RECCODE: F7 CLNGNMB: [untransposed no.] CALLTYP: 1

Here is but an example of what appears on unnumbered lines/columns 2-23 on pages 3, 4, 5, and 6 of this packet received from Telepak/Cellular South:

ENTCODE: CREDITO:
C)FEATCD:00000000 DIALDEM:911 ACCNTCD:
TFEATCD:00000000 CALLEDN:911 FILLER6:
CLLDSER: FILLER7:
CLNGSYS:01382 BILLNUM: TREATCD:000
ORGIMSA:002 AUTHCOD: FILLER8:

And this goes on for another sixteen lines/columns. Lt. Súber testified about pages 3, 4, 5, and 6 of this document at trial:

Q. Do you have any idea what all those acronyms, abbreviations are?
A. No, sir. I do not.
Q. So you can’t tell anything from page two — excuse me, page three as to an individual, can you?
A. No, sir, I cannot.
Q. The same thing is true of page four?
A. That’s correct, sir.
Q. Same thing true of page five?
A. Yes, sir.
Q. Same thing true of page six?
A. That’s correct, sir.
Q. So on pages three, four, five, and six, all of this information is what I call computer language?
A. That’s correct, sir.
Q. And you have to be computer literate to understand it, don’t you?
A. Yes, sir.
Q. From your review of D-15 you concluded in your report that these records, D-15, indicate calls to 911 came from mobile [transposed no.] ... ?
A. That’s correct, sir.
Q. And this identifies John Jones?
A. That’s correct, sir.

In fact, while testifying at trial, Lt. Súber, who admitted he was not completely familiar with this packet, thumbed through the six pages and stated that the transposed number appeared on page two, and that the same phone number appeared on pages three, four, five and six. He later had to be corrected as to the fact that it was the untransposed number [and not the transposed no.] which appeared on pages 3, 4, 5, and 6 of the Telepak packet.

¶ 18. Upon receiving this packet from Posecai, Lt. Súber placed this information in Investigator Frank’s case file. Lt. Sú-ber also logged the 911 tapes on the evidence log sheet and placed the tapes in the police department’s case file. A portion of Investigator Frank’s deposition was read into the record at trial, and this evidence revealed that Investigator Frank stated that Lt. Súber informed him that the phone records obtained from Cellular South revealed John Jones to be the owner of the cell phone from which the 911 bomb threat calls had been placed.

¶ 19. At trial, Jones no doubt focused on Major Hollis in his effort to convince the trial judge that the City was not exempt from liability under the MTCA due to the police officers’ reckless disregard for the safety and well-being of Jones. Both Jones, and Rev. G.A. Johnson, Monica Jones’s stepfather, testified that Major Hollis told them (on separate occasions) that he (Hollis) knew that Jones did not commit the crimes but that he (Hollis) believed that Jones knew who committed the crimes and Jones would be held in custody until he revealed the name of the guilty person. Both Rev. Johnson and Jones also testified that Hollis stated to them (again separately) that he (Hollis) did not believe the voice on the 911 tapes was that of Jones. However, at trial, Major Hollis vehemently denied these allegations:

Q. But I take it you never told Rev. Johnson that you had listened to the tapes again, or a second time, and from listening to the tapes a second time, you had determined that the voice was not that of John Jones.
A. No, sir.
Q. Did you ever tell Rev. Johnson in either one of your meetings with him that the only reason you were holding John Jones was to get him to identify the other parties involved in the bomb threat calls?
A. No, sir, I did not.

On several occasions during his testimony, Major Hollis attempted to explain about the 911 tapes. On direct examination, Major Hollis testified:

Q. Did you ever tell Rev. Johnson in either of the meetings with him that you had listened to the tapes?
A. Yes.
Q. And did you tell him on either occasion, any occasion, that you had determined that it was not John Jones’s voice on the tapes?
A. I hadn’t talked to Mr. Jones enough to be able to make that determination. I did state to him that I did listen to the tapes, and it was a black male in my opinion and the opinion of the dispatchers. But I’d only — I think the only words he had stated to me was that I was a liar.
Q. You’re talking about Mr. Jones?
A. Mr. Jones, that’s correct, and I don’t — that really wasn’t enough conversation for me to say whether it was or wasn’t him.

Admittedly, Major Hollis, in response to a question early on during the cross-examination by Jones’s lawyer immediately after the 911 tapes were played during the trial, testified:

Q. And is it your opinion that the voice on that tape is John Jones, our plaintiff in this case; is that right?
A. No, sir.[]
Q. Was any determination ever made that this voice on this tape was John Jones?
A. No, sir.

However, later during the cross-examination of Hollis, the following exchange occurred:

Q. And your decision to apply for the search warrant was based solely on what Súber told you?
A. I didn’t apply for the search warrant, first of all. They told me what information they had involving the case. I felt that there was probable cause based on the information they told me. I told them to, in turn, apply for the search warrant based on what they told me, and also the warrant for the phone records, and to my knowledge, that’s what they did. They come back and said, yes, they had applied for the phone records. The judge had reviewed it, and signed it, and we applied for the records.
Q. And did you review anything else before you told them to get a search warrant — to get an arrest warrant?
A. I had listened to the tape. I had talked to the two dispatchers. I had looked over their statements ... .What I was saying, Mr. Bailey, is I had looked at the two dispatchers’ statements. I had listened to the tape twice. I had seen Mr. Jones, but he wouldn’t talk to me basically. I would have liked to. And then we had the phone records. Based on those things, that’s what I had to go on.

As Hollis later explained during cross-examination, investigative work is basically “having to put the pieces together like a puzzle.” Also, later, during cross-examination, Hollis further tried to explain police work in the real world:

If this was the only case that we had to work, but that would be an ideal world, but we — I may have assigned them [other officers] four or five cases a day. They would work one case to the point that they couldn’t really get no further at that point, and then they would go to the next case and work up until they could get to a stopping point on it. They didn’t just have this one case they were working. I know on TV that’s the way they portray it. They run out there and they grab one case, but it’s just not like that.
‡‡‡‡‡‡‡‡
If I could go and investigate every case, Mr. Bailey, and look at every piece of paper that comes through that police department, I would love to. But you and me both know it don’t happen that way. In a perfect world, yes sir.
********
Q. You were not careful in your investigation, were you?
A. Oh, I think the investigation was very careful. I wouldn’t go as far as saying it was careless. I just think there’s things that you could do better, and some things were out of our control. I mean, I don’t have the manpower to dedicate to cases 24 hours a day, but it really wouldn’t have made any difference on this one because we got to a point that you can’t just keep going. It was a dead end.

¶ 20. The trial judge in this case patiently considered extensive evidence offered over the course of three days in this bench trial. The record reveals that during recesses, she would “squeeze in” other court business unrelated to this matter, simply trying to keep a handle on what was most assuredly a crowded docket. At the conclusion of the presentation of the evidence on the third day, the trial judge took this matter under advisement and then made a fairly common request:

BY THE COURT: All right, Attorneys, it’s been a pretty lengthy trial, and what I want to do in order to go ahead and rule promptly — you, by now, having been together three days, you know what my schedule is tomorrow and next week. I would like — and you tell me how much time you need, each party, to do proposed findings and recommendations. I would like to have it Monday, proposed findings of fact and conclusions of law and—
BY THE COURT: So I’d like to go ahead. Another reason I’d like to go ahead because the delay in receiving the proposed findings, as each of you can understand, is more difficult to remember. I know that they won’t be the same.
***:!=*:!:**
BY THE COURT: Yes, sir. What I want is a printout, and I want it on a disk, and you know, send the disk so I can make my own changes.
* * * * :¡: * * *
BY THE COURT: Both the hard copy and give me the disk, and that way I can speed along. You know, you’ve already got — each side already has it typed so I can speed along in getting the order back because we’re back over here next week.

¶ 21. It is hardly uncommon and certainly altogether appropriate for our overworked and understaffed trial judges to make a request similar to the one made by the trial judge in this case — request that each party’s attorney send a proposed findings of fact and conclusions of law (FOFCOL) to facilitate the trial judge’s ultimate entry of an opinion and order/judgment. Certainly, with today’s computer technology, disks can also be sent (as was requested by the trial judge in this case). Upon receipt of these disks with the proposed FOFCOL, a trial judge and the judge’s law clerk/staff attorney can then “cut and paste” into an opinion which is indeed the original work product of the trial judge, albeit containing perhaps verbatim portions of the proposed FOFCOL submitted by the respective attorneys. The only caveat we have issued to our trial judges when utilizing this method of generating an opinion is that if it appears to this Court on appeal that a trial judge has adopted verbatim the proposed FOFCOL submitted by one of the parties, by and through counsel, we will stray from our deferential treatment of a trial judge’s findings of fact and instead apply a heightened scrutiny or de novo review. City of Belmont v. Miss. State Tax Comm’n, 860 So.2d 289, 293-95 (Miss.2003). This having been said, we unhesitatingly conclude that there is no reason to apply any other standard of review of the trial judge’s FOFCOL in this case than that of deferential treatment.

¶ 22. Notwithstanding our deferential treatment of the trial judge’s findings of fact in today’s case, our concern here is that there is at least one major erroneous finding of fact by the trial judge. We know not whether this finding of fact was included in the proposed findings of fact submitted to the trial judge by Jones’s counsel, and then adopted by the trial judge, or whether this finding of fact originated with the trial judge. Regardless, we find these statements in the trial judge’s 15-page Findings of Fact and Conclusions of Law:

Moreover, Asst. Chief Hollis admitted he did not believe Jones committed the crime or was the voice on the telephone. Equipped with this information, defendant failed to establish prong 2: reasonable cause to believe that Jones is the person who placed the telephone ealls.[]
Hollis admitted he knew Jones did not place the E/911 calls but believed Jones knew who did.[]

¶ 23. In discussing the “probable cause to arrest” issue, the trial court stated:

The evidence further established that Jones, even prior to his arrest declared his cellular phone inoperable, alerted the booking clerk that the social security number and telephone number of the John Jones in the police record did not belong to him, his birth place was Charleston, MS not Chicago, IL, he was in Los Angeles, CA in 1993, not in Greenville, MS when the information in the record was complied [sic] and reiterated he had no prior arrest record. Moreover, Asst. Chief Hollis admitted he did not believe Jones committed the crime or was the voice on the telephone. Equipped with this information, defendant failed to' establish prong 2: reasonable cause to believe that Jones is the person who placed the telephone calls. No other evidence supported John Jones ... [transposed] cellular telephone number ... as being the prankster.

We thus emphasize that the trial court made an erroneous finding of fact from the clear evidence in the record. Asst. Chief Hollis never admitted that during the investigation, he did not believe that Jones committed the crime or that Jones’s voice was not on the 911 tapes. He only admitted at trial, in the cool light of after-developed facts, and with the benefit of 20-20 hindsight, that he had by the time of the trial come to the realistic conclusion that Jones had not committed the crime. To his credit, Major Hollis, at trial, readily admitted that fact because by the time of the trial, Hollis knew that Mason had transposed the numbers on the Telepak packet submitted to the Greenville Police Department and that Jones’s criminal case had been nolle prossed. However, contrary to the finding of the trial judge, Major Hollis never admitted that during the course of the investigation, he knew or believed that Jones had not committed the crime and that Jones’s voice was not on the 911 tapes, and yet, he still allowed Jones to be arrested, indicted and prosecuted.

¶ 24. On the other hand, it is true that both Rev. Johnson and John Jones testified that Hollis, in separate conversations, informed them that he (Hollis) did not believe that Jones committed the crimes, but he was holding Jones until he revealed the identity of the real culprit, and that he (Hollis) did not believe the voice on the tape was that of Jones; however, at trial, Hollis vehemently denied that he ever made those statements to Rev. Johnson or John Jones. This clearly created a disputed fact issue to be resolved by the trier-of-fact. See Culbreath v. Johnson, 427 So.2d 705, 708 (Miss.1983). However, the trial judge did not find from this disputed evidence that Major Hollis made these statements to Rev. Johnson or Jones — the trial judge instead found as a matter of proven fact that Major Hollis “admitted he did not believe Jones committed the crime or was the voice on the telephone.” (Emphasis added). It is important, indeed critical, to emphasize here that the trial judge made this finding in the context of discussing whether there existed at the time of the issuance of the arrest warrant probable cause to believe that Jones had committed the crimes of making the 911 bomb threat calls. Again, assuming arguendo that the trial judge used the testimony of Rev. Johnson and/or John Jones as the basis for determining that Hollis “admitted” that he did not believe Jones committed the crimes or that it was Jones’s voice on the 911 tapes, these statements which were allegedly made by Hollis to Rev. Johnson and/or Jones, would have been made after Jones’s arrest, and thus could not properly be used by the trial judge in finding lack of reasonable cause to believe that Jones was the person who placed the 911 calls, thus failing to establish probable cause for the issuance of the arrest warrant. By the time these statements were allegedly made by Hollis to Jones and/or Rev. Johnson, Jones had already been arrested. Because the totality of the record reveals that this critical finding of fact is clearly erroneous and manifestly wrong, we are not required to afford deferential review, and thus the reckless disregard issue fades to no more than a negligence case against the City of Greenville.

¶ 25. A review of the record in its totality, causes us to conclude that, notwithstanding Jones’s efforts at trial to convince the trial judge of the existence of an alleged vendetta by Hollis against Jones in attempting to force Jones to reveal the identity of the real culprit by keeping Jones in custody despite Hollis’s belief that Jones did not commit the crime, Jones’s primary focus during the trial was on the failure of Hollis and the other police officers to realize that, even though Jones’s name and cell phone number appeared on page 2 of the Cellular South packet, a different cell phone number appeared on pages 3, 4, 5, and 6 of the packet. We now know the reason for this mistake was a Telepak employee’s transposing of the numbers.

¶ 26. In her FOFCOL, the trial judge made several references to either an inadequate investigation, or a failure to perform certain acts during the course of the investigation. This is negligence, not reckless disregard. City of Jackson v. Powell, 917 So.2d at 71. Indeed inadequacy and carelessness was the focus of the plaintiffs’ case. For example, Jones’s attorney asked Major Hollis on cross-examination, “You were not careful in your investigation, were you?” Jones also focuses on the fact that he repeatedly told the police officers that his cell phone was inoperative and that he “did not do it.” First of all, the record is replete with proof that a cell phone which is inoperative for any other types of calls is still operative for 911 calls. This fact is acknowledged by the trial judge in her FOFCOL, thus that Jones’s cell phone may have been inoperative is of no consequence since it still could have been used to place 911 calls. Secondly, law enforcement officials are hardly unaccustomed to hearing suspects claim that he/she “did not do it.” We determine from the totality of the record in this case, that the failure of law enforcement officials to follow-up on Jones’s proclamations of inno-cenee might, arguendo, rise to the level of negligence, but certainly these actions or inactions fall well short of conduct which could be described as reckless disregard.

¶ 27. In sum, and for the sake of emphasis, these are the relevant facts of this case. The GPD learned that the bomb threat calls to 911 were made from a Cellular South phone during certain time frames on the dates of August 15, 1999, and August 16, 1999; the GPD secured a circuit court order for the Telepak/Cellular South phone records in an effort to learn the identity of the owner of the cellular phone from which these 911 calls had been made; the chain of communication within the Telepak network went from Torrey to Whitehead to Mason to Whitehead to Tor-rey to Posecai, who in turn contacted the GPD, which promptly retrieved this 6-page Telepak packet generated by Mason; the second page of the 6-page packet contained information which, inter alia, identified Jones and his cell phone number; the two 911 dispatchers were interviewed; an arrest warrant for Jones was applied for and issued by a county court judge and Jones was arrested; a search warrant for Jones’s house was applied for and issued by a justice court judge; pursuant to this search warrant, the GPD retrieved two cell phones, one of which contained the phone number as depicted on page two of the 6-page Telepak packet; the case was presented to the Washington County grand jury, which returned an indictment against Jones; the cellular phone records remained in the custody of the District Attorney’s office for approximately five and one-half months (a fact found by the trial judge); a public defender was appointed to represent Jones, but later Marie Wilson was assigned as the public defender to represent Jones; and, Wilson was the first person to discover, after all of this time, that the cell phone numbers had been transposed and that the bomb threat calls had been made, not from the transposed number (Jones’s cell phone), but instead from the untransposed cell phone number, which did not belong to Jones.

¶ 28. A review of the record reveals, inter alia: (1) that these cellular phone records had passed through the hands of at least four Telepak employees, various officers with the GPD, the District Attorney’s office, the grand jury, and two public defenders, before the transposed cell phone numbers were discovered; (2) that the GPD interviewed the 911 dispatchers; (3) that at least one GPD officer listened to the 911 tapes at least twice; and, (4) that the GPD appeared before three different judges during the course of the investigation for (a) a subpoena duces tecum to retrieve the cell phone records, (b) an arrest warrant for Jones, and (c) a search warrant for Jones’s home. Despite the existence of these facts, the trial judge determined that the GPD was guilty of reckless disregard of the safety and well-being of John Jones by conducting an “inadequate” and “careless” investigation. With the utmost respect for the very learned and experienced trial judge, we are constrained to find that her finding, from the record before her, that the GPD officers’ actions amounted to reckless disregard of the safety and well-being of John Jones is not supported by substantial, credible and reasonable evidence, and was thus manifestly wrong.

¶ 29. We again emphasize that the second page of the 6-page Telepak packet contains the transposed numbers resulting in the identification of Jones and his cell phone number. Again, as already noted, nt the top of each of the remaining four pages, which set out the information on the bomb threat calls, is the following information:

RECCODE: F7 CLNGNMB: [untransposed no.] CALLTYP: 1

For the next twenty-two lines/columns on each of these four pages, there appears really nothing more than computer language which is basically indiscernible. In fact, Lt. Súber testified that he was clueless as to what this computer language meant. From the record before us, we come to the inescapable conclusion that the GPD’s failure to realize that the cell phone number appearing on pages 3-6 of the 6-page Telepak packet was different from the cell phone number appearing on page 2 amounts to, at most, negligence. It simply does not evidence reckless disregard within the meaning of the statute and our case law. As pointed out by the trial judge, reckless disregard under the MTCA, is action which amounts to “wanton and willful” conduct. Citing Turner v. City of Ruleville, 735 So.2d 226, 229-30 (Miss.1999).

¶ 30. We have respectfully determined that the MTCA cases cited by Jones which involve vehicular accidents are of little benefit to the resolution of today’s case. See Miss. Dep’t of Public Safety v. Durn, 861 So.2d 990 (Miss.2003); City of Jackson v. Brister, 838 So.2d 274 (Miss.2003); City of Jackson v. Lipsey, 834 So.2d 687 (Miss.2003); City of Jackson v. Perry, 764 So.2d 373 (Miss.2000); Maye v. Pearl River County, 758 So.2d 391 (Miss.1999). Likewise, Jones cited as authority Foster v. Noel, 715 So.2d 174 (Miss.1998). A close reading of Foster reveals it is unquestionably factually distinguishable from today’s case. In Foster, Kirby, the manager of the local Jitney Jungle grocery store, was carrying a customer’s groceries to the car, and while in the parking lot, Kirby noticed a man with two packages of rib-eye steaks under his shirt. Kirby confronted the shoplifter, who by that time had placed the steaks under the driver’s seat of a truck, retrieved the steaks, and told the man to remain there until the police arrived. Kirby identified the man as a black male and confirmed that there was also a black male passenger in the truck. The men drove off, and Kirby wrote down the tag number. Once the police officers arrived, Kirby gave the officers the license plate information and also informed the officers that the truck was occupied by two black males. Kirby also identified one of the truck’s occupants by name. Kirby later arrived at the police station where he met with Officer Luckett and gave Luckett the details of the shoplifting incident and the truck’s tag number. From this information, Luckett was able to determine that the owner of the truck was a female named Jacqueline Noel. Even though Luckett, by that time, knew that the suspects were two males, he filled out the paperwork, including an affidavit for an arrest warrant, naming Jacqueline Noel, a female, as the person who had stolen the steaks. This Court found:

Yazoo City, via Officer Luckett acting within the scope of his employment with the Yazoo City Police Department, was well aware that the Jitney Jungle manager had not accused Noel of being the shoplifter. Despite this information being presented to Luckett, an affidavit stating that Noel shoplifted and a warrant for her arrest based upon the erroneous affidavit were processed and executed. Obviously, there was a flagrant disregard of the information provided by the store manager to Officer Luckett. This flagrant disregard led to Noel (a woman already suffering from depression and taking Prozac) being falsely arrested, detained at the police station for approximately an hour and a half, having criminal shoplifting charges brought against her and having her name and address published in a newspaper as being a shoplifter.
As the trial court noted in her findings and conclusions, the Yazoo City Police Department instigated the proceedings against Noel by failing to investigate her involvement in the shoplifting incident, although it was known she was not accused of being involved.

Id. at 183.

¶ 31. The actions of the Greenville Police Department in the case sub judice pale in comparison to the egregious actions of Officer Luckett in Noel. Unlike the police officer in Noel, the GPD officers methodically went through an investigative process where they, among other things, appeared before three different judges, obtained phone records, listened to the 911 tapes containing the bomb threats, and conducted interviews, all in an effort to get to the bottom of who had made these bomb threat calls to 911. Viewing the evidence in the light most favorable to the Joneses, the most they proved was that one or more of the GPD officers were negligent, thus causing the City of Greenville to be exempt from liability under the MTCA. See Miss.Code Ann. § ll-46-9(l)(c).

CONCLUSION

¶ 32. The record reveals immense suffering by John Jones and his wife and children due to Jones’s arrest for a crime which he unquestionably did not commit. If an injured plaintiff can prove liability in a court of law, the party proven to be at fault and legally liable should pay. In this case, someone did pay — Telepak. The Greenville police officers were at the most, negligent — they did not act in reckless disregard of the safety and well-being of Jones or any other citizen. Thus pursuant to the provisions of the MTCA, the City of Greenville is exempt from liability in this case.

¶ 33. For these reasons, we are constrained as a matter of law to reverse the judgment as entered in favor of John Jones and Monica Jones, and render judgment here in favor of the City of Green-ville.

¶ 34. REVERSED AND RENDERED.

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

      . In order to protect Jones's privacy and security, instead of revealing his cellular phone number, we will refer to Jones's cellular phone number as the "transposed” phone number and the cellular phone number from which the bomb threat calls were placed as the "untransposed” phone number.

      . The trial judge addressed four issues: (1) whether the GPD had probable cause for the issuance of an arrest warrant for Jones; (2) whether the GPD officers acted in reckless disregard of Jones’s safety and well-being; (3) whether the plaintiffs sustained a cause of action for false arrest, false imprisonment and malicious prosecution; and, (4) whether the plaintiffs suffered injuries and damages which were recoverable from the City pursuant to the MTCA.

      . Indeed, the trial judge had made detailed findings-of-fact which consumed thirty-five paragraphs and eight pages of the 15-page opinion.

      . As will be hereinafter discussed, the issue of whether Jones’s cell phone was "operational on the day and time in question,” is of no moment.

      . A review of the Telepak packet reveals that the font is actually much smaller than depicted here. Also, for the sake of Jones’s privacy, certain personal information contained in this packet is not revealed here. The deleted information is not relevant to today's discussion.

      . Major Hollis admitted that he attempted to engage Jones in conversation when Jones was arrested and brought to the police station, and this was for the purpose of listening to Jones’s voice long enough during the conversation to determine if the voice on the 911 tapes was that of Jones. As Hollis testified at trial: "[T]here’s not anything wrong with lying to someone that you’ve got charged with a crime. It is not against the law to lie. It’s not against the law to say things to try to make them talk to you. To try to tell them, yes, I've got more evidence on you than I really do. That’s the way a lot of investigations are done.” Hollis was not trying to get Jones to confess to something he did not do— he was trying to engage Jones in conversation long enough to determine in his mind if Jones's voice was the voice he had heard on the 911 tapes.

      . This was the conclusion reached by Major Hollis by the time of trial, and after again listening to the 911 tapes during his testimony at the trial. As will be seen, however, this trial conclusion by Major Hollis was reached with the benefit of hindsight, because the record reveals that during the investigation, Major Hollis firmly believed that Jones’s voice was on the 911 tapes and that Jones was the guilty party.

      . See also City of Belmont, 860 So.2d at 293 n. 6.

      . These statements relate to the trial judge’s discussion of whether the Greenville Police Department had probable cause to seek the issuance of an arrest warrant for Jones. Additionally, assuming arguendo that the trial judge made this finding of fact regarding Hollis’s "admissions” based on the testimony of Rev. Johnson and/or Jones (which appears to be the only evidence in the record from which she could make such a finding), this finding is clearly erroneous since, according, to Rev. Johnson and Jones, these statements were made by Hollis after Jones had been arrested. Thus, the trial judge clearly erroneously used this Johnson/Jones testimony as a basis in determining lack of probable cause to seek the issuance of the arrest warrant.

      . These statements relate to the trial judge’s discussion of whether the Greenville Police Department was guilty of malicious prosecution.

      . Even assuming, arguendo, that the trial judge correctly concluded from the disputed testimony that Hollis told Rev. Johnson and Jones, after Jones’s arrest, that he (Hollis) did not believe that Jones committed the crimes or that the voice on the 911 tapes was that of Jones; and, even assuming, arguendo, that Hollis did indeed make these statements, this evidence would not support a finding of reckless disregard on the part of Hollis, or any other officer of the Greenville Police Department. Such evidence could appropriately be deemed to be exculpatory evidence which, upon indictment, and invoking of our discovery rules, law enforcement officials, via the District Attorney’s office, would have been required to reveal. See URCCC 9.04 A.6. Thus, we can conclude here that Hollis did more than required of him. He revealed, pre-indictment, and without a formal invocation of our discovery rules, this "exculpatory information” to, not only Jones, but also to Rev. Johnson.

      . Since we have already named the GPD officers involved, we will not attempt to again specify what officer performed what act, but instead, we will simply refer to the police officers collectively as the GPD.


author: MYERS, J.,

text:
    Joseph THOMPSON, by and through His Mother and Next Friend, Nancy THOMPSON, Appellant, v. LEE COUNTY SCHOOL DISTRICT, Appellee.
    No. 2003-CA-02395-COA.
    Court of Appeals of Mississippi.
    April 19, 2005.
    Rehearing Denied July 26, 2005.

      J. Mark Shelton, Jana Dawson, Tupelo, attorneys for appellant.
    William C. Murphree, Gary L. Carna-than, Tupelo, attorneys for appellee.
    Before BRIDGES, P.J., IRVING and MYERS, JJ.
   MYERS, J.,

for the Court:

¶ 1. On December 3, 1999, Joseph Thompson filed his complaint against George Gregory and the Lee County School District (“Lee County”), alleging that he suffered personal injuries as a result of the negligence of George Gregory in operating a Lee County school bus. On October 9, 2003, after a trial on the merits, the court dismissed George Gregory from the suit, but found Lee County liable to Thompson for the sum of $200,000. However, the court found Thompson to be fifty percent contributorily negligent, thus reducing the total damage award to $100,000.

¶ 2. Aggrieved by the assignment of contributory negligence and by the amount of damages awarded, Thompson now appeals, raising the following two issues:

I. DID THE TRIAL COURT ERR IN FINDING THOMPSON TO BE FIFTY PERCENT CONTRIBUTORILY NEGLIGENT?

II. DID THE TRIAL COURT ERR IN DETERMINING THE AMOUNT OF DAMAGES?

¶ 3. Finding error in the assignment of contributory negligence, we reverse and render on that issue, and further, finding error in the amount of the damage award, we reverse and remand for a new trial on the issue of damages.

FACTS

¶4. On December 4, 1998, Thompson was driving his red truck in the northbound lane of Romie Hill Road, a two-lane road in Shannon, Mississippi. As Thompson approached the intersection of Romie Hill Road and County Road 300, the school bus driven by Gregory pulled out in front of Thompson, causing a collision between the two vehicles. Fortunately, the bus was empty of children at the time. There were no stop signs or stop lights to halt or slow traffic proceeding north or southbound on Romie Hill Road; thus, Thompson was proceeding with the right of way and without any traffic signal requiring him to slow down or stop. There were stop signs on each of the eastbound and westbound sides of County Road 300; thus, the school bus had to proceed through a stop sign in order to enter Ro-mie Hill Road. Whether Gregory came to a complete stop at this stop sign before entering Romie Hill Road became one of the contested factual issues in the case, but there was no dispute about the fact that Thompson faced no road sign, traffic light, or other warning signal as he approached the intersection of Romie Hill Road and County Road 300.

¶ 5. Gregory suffered only minor injuries from the collision, but Thompson suffered numerous injuries, including severe head trauma. Thompson was taken to the emergency room at North Mississippi Medical Center where he remained in a coma for three days. Thompson remained hospitalized until December 31, 1998, incurring roughly $50,000 in medical bills from his extended stay at the hospital.

¶ 6. Experts at trial testified that while Thompson has made a virtually full physical recovery, he suffers from permanent cognitive defects as a result of the head injuries caused by the accident. Among these permanent cognitive defects are the following: loss of language skill, mild dys-nomia, reduced motor functioning and coordination, abnormally reduced attentional skills, mental slowness and inefficiency in learning, and visual perceptual difficulties.

LEGAL ANALYSIS

I. DID THE TRIAL COURT ERR IN FINDING THOMPSON TO BE FIFTY PERCENT CONTRIBUTORILY NEGLIGENT?

¶ 7. Thompson argues that there was no credible evidence to support the trial court’s finding that he was fifty percent contributorily negligent. In support of this argument, Thompson points to various facts, which we will discuss more fully below.

¶ 8. Lee County argues that the trial court’s findings were not manifestly wrong or clearly erroneous and that this Court should leave those findings untouched.

STANDARD OF REVIEW

¶ 9. The first thing to note is that the ease sub judice falls under the Mississippi Tort Claims Act (“MTCA”), and cases brought under the MTCA are tried by a judge, sitting without a jury. Mississippi Dept. of Public Safety v. Durn, 861 So.2d 990, 994(¶ 7) (Miss.2003) (citing Miss. Code Ann. § 11-46-13 (Rev.2002)). In cases, such as the present case, where a circuit court judge sits without a jury, we have held that our standard of review is the same standard that we apply to decisions of a chancellor. Davis v. Latch, 873 So.2d 1059, 1061(¶ 6) (Miss.Ct.App.2004). That means that we will not disturb the circuit court judge’s findings “unless they are manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Id. (citing City of Jackson v. Perry, 764 So.2d 373, 376(¶ 9) (Miss.2000)). A circuit court judge’s findings, therefore, “are safe on appeal where they are supported by substantial, credible and reasonable evidence.” Id. (quoting Maldonado v. Kelly, 768 So.2d 906, 907(¶ 4) (Miss.2000)). We have held further in this regard that:

This Court recognizes that the trial judge, sitting in a bench trial as the trier of fact, has the sole authority for determining the credibility of the witnesses. Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1265 (Miss.1987); Hall v. State ex rel. Waller, 247 Miss. 896, 903, 157 So.2d 781, 784 (1963). Where there is conflicting evidence, this Court must give great deference to the trial judge’s findings. McElhaney v. City of Horn Lake, 501 So.2d 401, 403 (Miss.1987).

City of Jackson v. Lipsey, 834 So.2d 687, 691(¶ 14) (Miss.2003). Thus, our standard of review is deferential, and in conducting our review, we must determine whether the trial judge’s findings were clearly erroneous or unsupported by “substantial, credible and reasonable evidence.” Davis, 873 So.2d at 1061(¶ 6).

DISCUSSION

¶ 10. In a recent case, this Court held that the assignment of contributory negligence turned upon the “factual underpinnings” of that case. City of Newton v. Lofton, 840 So.2d 833, 837(¶ 14) (Miss.Ct.App.2003). We find the same to be the case here. The assignment of contributory negligence in the case sub judice was based entirely upon certain inferences drawn by the trial judge from facts in the case; thus, we will examine these inferences in light of the evidence in the record. In finding that Thompson was contribu-torily negligent, the trial judge said the following:

Based on the only testimony concerning what parts of the vehicles came into contact, it seems apparent to me that the bus was hit by the automobile apparently in a fairly head-on circumstance, that is, the car was traveling straight in a northerly direction, striking the bus behind or in the vicinity behind the passenger door located on the right-hand side of the bus somewhat behind the driver’s seat, knocking the driver with apparent substantial force from his seat into the doorway breaking glass out, which indicates to me substantial impact, which as it applies to this case would indicate to me that the plaintiff, Joey Thompson, was traveling at an increased rate.
I do not know, but there is testimony or an indication that the speed limit there was 45 miles an hour. I do not know whether the speed exceeded J5, but it was a substantial impact, and, no doubt, caused pretty substantial injury to the vehicles, as well as to both of the drivers.
The front of the bus itself was based on the drawing which is a part of the police report in this case which is probably conservative, by the way, because it would appear to me that in all likelihood the bus was at least as indicated in that drawing and possibly slightly more for the impact to have been in the northbound lane of traffic. In any event, all of these things considered, the Court is certainly of the opinion that the ... plaintiff in this case, Joseph Thompson, was contributorily negligent in causing the accident.

(emphasis added).

¶ 11. Not only do the trial judge’s own words belie the extremely tenuous eviden-tiary base upon which the court attempted to ground this ruling, but the evidence and testimony in the record further demonstrate that the conclusions of the trial judge, as quoted above, are clearly erroneous.

¶ 12. For instance, there was no reason supported by credible evidence for the judge to conclude that, because Gregory was thrown from his seat, Thompson must have been going in excess of forty-five miles per hour. There was no expert or other testimony as to the speed Thompson was traveling and there was no credible evidence in the record to suggest that Thompson was speeding; therefore, this inference is unreasonable, as it finds no evidentiary support in the record. Further, given how relatively minor Gregory’s injuries were (the record shows that he suffered some cuts to his elbow and head for which he was treated and released, and the officer who responded to the accident noted that Gregory appeared “banged up,” but not seriously injured), it is equally, if not more likely, using the trial court’s reasoning, that Thompson was not going above the posted speed limit. There was nothing in the record to suggest that it would take more force than a forty-five mile per hour impact to knock Gregory from his seat and break the glass of one of the windows. This conclusion was purely conjectural and unsupported by any substantial, credible evidence.

¶ 13. Moreover, we find in the record no justification for the conclusion that the drawing from the police report was “probably conservative” and should, therefore, have been taken to indicate something more than the drawing actually indicated. The “drawing” in the police report is a bare diagram, designed merely to show the general position and direction of the vehicles at the time of the impact. This drawing is not a “realistic” depiction of the accident, and given the nature of this drawing as such, it should not have been taken to convey a picture of the accident sufficient to support the kind of negative inference drawn by the trial court in this case. Having reviewed this drawing, we certainly do not find that it could reasonably be used to draw negative inferences about the actions of Thompson so as to support a finding of contributory negligence.

¶ 14. In addition, the trial judge declared, “I do not know whether the speed exceeded 45 [miles per hour];” yet, the trial judge went on to declare that notwithstanding the fact of his not knowing whether Thompson was speeding, he would conclude that Thompson was in fact speeding. Put another way, the trial judge said that even though he did not know that Thompson was speeding, he would nonetheless conclude that Thompson was speeding. Such a puzzling statement is contradictory on its face, and the finding of contributory negligence, being squarely based upon this contradictory statement, would constitute clear error in itself.

¶ 15. However, that clear error becomes compounded by the very high amount of contributory negligence that was predicated upon this facially contradictory conclusion. The judge’s assignment of fifty percent of the fault to Thompson means that the accident was just as much Thompson’s fault as it was Gregory’s. This conclusion, resting as it does upon a clearly contradictory prior conclusion (concerning the statement that even though the court did not know that Thompson was speeding, he would nevertheless be found to be speeding), would also constitute clear error. This error is further compounded by the invalidity of the only other stated reasons for the judge’s conclusion that Thompson was speeding and, therefore, equally at fault. Those reasons were (1) the already discussed conclusion that the drawing in the police report should (inexplicably) be taken to indicate something more than the drawing actually indicated and (2) the finding that there was “substantial” impact and injury to the vehicles.

¶ 16. Regarding this second reason, the trial judge stated that there appeared to be “substantial impact” and “substantial injury” to the vehicles, and that this could support the conclusion that Thompson was speeding. However, there is no credible evidence in the record to indicate the actual extent of the damage to the vehicles, nor is there any credible evidence in the record to justify the inference that, because of this supposed damage to the vehicles, Thompson must have been equally at fault. Gregory did testify that the bus was in a kind of “V” shape and “mashed in pretty bad” after the accident, but this was the only reference, outside of opening and closing arguments, to the damage to the vehicles. Thus, it is not at all clear from the record what “substantial impact” and “substantial injury to the vehicles” should be taken to mean in this case, other than, possibly “mashed in pretty bad,” which does not shed much more light on the subject.

¶ 17. Since we find no substantial, credible evidence to indicate the actual nature and extent of the damage to the vehicles, we do not believe that the trial judge’s inference drawn from this supposed substantial injury to the vehicles was justified. The logical leap from this undefined “substantial injury to the vehicles” to the conclusion that Thompson was speeding is simply too great, given the lack of evidence in the record. In short, having reviewed the record in its entirety, we find that there is no substantial, credible evidence in the record to support the conclusion that the impact was so substantial that Thompson must have been speeding and that, therefore, the accident must have been just as much Thompson’s fault as Gregory’s. Indeed, the judge’s own words do not go this far, in that he says, “I don’t know whether the speed exceeded forty-five.” As noted above, there was no expert or any other testimony, nor was there any physical or documentary evidence to justify the conclusion that the damage to the vehicles proved that Thompson must have been traveling above the posted speed limit.

¶ 18. As should be apparent from our discussion above, the trial judge’s ruling on the issue of comparative negligence is flawed by a facially contradictory statement, in addition to statements that are not supported by substantial, credible evidence. With all due respect to the trial court, this appears to us to be a textbook example of clear or manifest error. Indeed, if the clear error standard means anything, we believe it must mean that errors clear from the face of the trial judge’s ruling can justify reversal. Moreover, while we acknowledge that the trial judge indeed is afforded great deference, that deference is not so great as to allow the trial judge to inject into his decision findings that are not supported by substantial, credible evidence.

¶ 19. Based upon our review of the record, we find that the trial judge committed clear error in assigning to Thompson comparative negligence of fifty percent. There is no substantial, credible evidence in the record to support such a finding.

¶ 20. Going a step further, however, we find that there is no credible evidence- in the record to support a finding that Thompson was in any way at fault. This is because the record shows very simply that the bus pulled out into the, right of way and in front of Thompson. Further, but for the school bus pulling out into the right of way, the accident would not have happened, and it appears from the record that, given the fact that the road had only two lanes, the most that Thompson may have been able to do in any event would have been to swerve off the road in order to avoid the bus. We certainly cannot say that such a result would have been better or worse than what actually transpired. But we can say, based upon what we find in the record, that there is no credible evidence to support the conclusion that Thompson was partially at fault in this accident.

¶21. In order to find that Thompson was partially at fault in this accident would require one to accept as proven, as the trial judge did, certain facts that are not supported by credible evidence in the record. That we cannot do.

¶ 22. As Thompson points out for the sake of argument in his brief, given the distances involved, even if Thompson had been traveling as fast as 120 miles per hour, Gregory would have had as many as fifteen seconds of clear, unobstructed viewing time to see Thompson’s red truck approaching. Given the fact that no credible evidence in the record supports the conclusion that Thompson was going any speed above the posted limit (much less the clearly hypothetical and hyperbolic 120 miles per hour Thompson usés to prove his point), the court might easily- have concluded that Gregory had even more time in which he should reasonably have observed the approach of Thompson’s vehicle.

¶ 23. How on a clear day, looking down two unobstructed views of straight lanes of traffic,' Gregory succeeded in seeing one vehicle approaching in the southbound lane but failed to seé the red truck approaching from the northbound lane, we cannot 'say. We can say, however, what the answer to this question should not be. Given the evidence in this case, one could not reasom ably answer that because Gregory failed to see Thompson’s red truck approaching that, therefore, Thompson must have been doing something wrong. If there was evidence of negligence or wrongdoing on the part of Thompson, this case would be different, but such a conclusion is unreasonable, given the facts of this case, as there was no credible evidence of negligence or wrongdoing on the part of Thompson. Unless Thompson was traveling at a literally “blurring” rate of speed (in which case we doubt that Gregory would have left the accident with only minor injuries after the impact) then Gregory should have seen the approaching red truck from the north, just as he saw the other approaching vehicle from the south; and the fact thát Gregory failed .to see Thompson does not prove that Thompson must have been partially responsible for the accident.

¶ 24.. Very simply, the record shows that Gregory pulled out in front of Thompson and caused the collision. There was little or nothing that Thompson could have done to avoid or even minimize the accident. As noted, the road had only two lanes; thus, Thompson had nowhere to go, other than off the road, even if he had anticipated that Gregory would pull out in front of him. Also, given the point of impact at the front end of the bus, we do not see how Thompson could have avoided a collision, even if he had been traveling less than the posted speed limit. If Thompson had rear-ended the bus, for example, this case might be different, but, as the facts of this case stand, we do not believe that fault should be assigned to Thompson based upon his failure to take extreme, split-second evasive maneuvers in reaction to or in anticipation of Gregory’s negligence.

¶ 25. We find that the trial court’s finding of contributory negligence was clearly erroneous, and we find further that the record contains no credible evidence that the accident was caused in any part by Thompson’s actions. Therefore, we reverse the trial judge’s assignment of fifty percent comparative negligence to Thompson, and render to remove any assignment of comparative negligence to Thompson.

II. DID THE TRIAL COURT ERR IN DETERMINING THE AMOUNT OF DAMAGES?

¶ 26. Thompson argues that the amount of the damage award was so unreasonable that it should be overturned. In particular, Thompson argues that the amount of the damage award did not take into account the costs of dealing with Thompson’s permanent cognitive defects from which he suffers as a result of his head injuries.

¶ 27. Lee County argues that an appellate court should not reverse a damage award simply because it seems too low, but that the award must be so low as to be unreasonable or outrageous in amount. Lee County also urges repeatedly that, although it is undisputed that Thompson has permanent cognitive defects, he will incur no costs in dealing with and treating these permanent defects, because all of the services Thompson needs are available from the State “at no cost.”

STANDARD OF REVIEW

¶ 28. Our standard of review of damage awards in a bench trial has been stated as follows:

In bench trials such as this, a circuit judge is subject to the same standard of review as that of a chancellor. Sweet Home Water & Sewer Ass’n v. Lexington Estates Ltd., 613 So.2d 864, 872 (Miss.1993). Therefore, the circuit judge’s decision will not be disturbed as long as substantial, credible, and reasonable evidence exists to support the ruling. Allied Steel Corp. v. Cooper, 607 So.2d 113, 119 (Miss.1992).

DePriest v. Barber, 798 So.2d 456, 459(¶ 10) (Miss.2001). Thus, our standard of review for this issue is the same standard as that employed for issue one, and we will review the record to determine whether the trial judge’s findings were clearly erroneous or unsupported by “substantial, credible and reasonable evidence.” Id.; Davis, 873 So.2d at 1061(¶ 6).

DISCUSSION

¶ 29. It is undisputed that Thompson incurred roughly $50,000 in medical bills from his initial stay in the hospital after the accident. It is also undisputed that Thompson suffers from permanent cognitive defects as a result of the head injuries he sustained in the accident. Thompson attempted to show that it would be costly for him to deal with these permanent cognitive defects, because he would be in need of the help of professionals in order to complete his education and in order to begin and maintain a career or vocation. In addition, Thompson argued that these permanent cognitive defects have considerably lessened the range of potential jobs that Thompson may now be able to perform.

¶ 30. Lee County maintains that, although Thompson suffers from permanent cognitive defects as a result of his head injuries, he will be able to receive all of the medical and/or professional assistance he may need throughout the entire remainder of his life “at no cost” from the State. In particular Lee County repeatedly referred to the Mississippi Department of Vocational Rehabilitation as a means by which Thompson could receive the services he needs at no cost.

¶31. In determining the amount of damages to which Thompson was entitled the trial judge declared in his October 6, 2003 bench ruling, “The Court is of the opinion that judgment be entered for the plaintiff in this case in the sum of $100,000.” In the written judgment that was entered on October 9, 2003, the trial judge declared:

[T]he plaintiff is entitled to a judgment of and from the Defendant, Lee County School District, and the Court does assess Plaintiffs total damages to be $200,000, and does further find that Plaintiffs actions constituted comparative negligence, which the Court finds to be 50 per cent [sic], and therefore the Court awards a total judgment in favor of Plaintiff of and from the Defendant, Lee County School District, in the amount of $100,000.00, for which execution may issue according to law.

¶ 32. There was no further elaboration on how the judge arrived at this amount of damages or whether this amount included or excluded pain and suffering, future medical expenses, loss of earning capacity, and/or other possible items of damages.

¶ 33. The question of the excessiveness or inadequacy of an award of damages has generally been conducted on a case-by-case basis. Brandon HMA, Inc. v. Bradshaw, 809 So.2d 611, 621(1136) (Miss.2001); Jesco, Inc. v. Shannon, 451 So.2d 694, 705 (Miss.1984). That is to say, the particular facts of each case have predominated in the inquiry, such that the results of orn-eases on this issue are very divergent.

¶ 34. In some cases, for example, we have upheld an award far in excess of the plaintiffs medical expenses, or we have ordered an additur or upheld the trial court’s ordering an additur where the jury award was unreasonably low and failed to fairly compensate the plaintiff for all items of damages that were shown by the evidence to be present. In the case of KM. Leasing, Inc. v. Butler, ex rel. Butler, 749 So.2d 310 (Miss.Ct.App.1999), we upheld an award of roughly ten times the amount of the injured plaintiffs medical bills. Id. at 313 (¶¶ 1-4) (jury awarded a total of roughly $1.8 million dollars where the medical bills were shown to be $161,000). Also, in Scott Prather Trucking, Inc. v. Clay ex rel. Sanders, 821 So.2d 819 (Miss.2002), our supreme court found that an award of $35,800 in damages where roughly $48,000 in damages were proven, including future dental care expenses, was so inadequate as to justify an additur of $114,200, bringing the total amount of damages awarded to $150,000. Id. at 822-23(¶ 15). Other cases have similar holdings: Rodgers v. Pascagoula Public School District, 611 So.2d 942 (Miss.1992); Pham v. Welter, 542 So.2d 884 (Miss.1989); Matkins v. Lee, 491 So.2d 866 (Miss.1986); City of Jackson v. Ainsworth, 462 So.2d 325 (Miss.1984); Biloxi Elec. Co. v. Thorn, 264 So.2d 404 (Miss.1972).

¶ 35. In other cases, however, our courts have upheld awards that amounted to little more than the amount of medical expenses proven. For instance, in Clark v. Deakle, 800 So.2d 1227 (Miss.Ct.App.2001), this Court upheld a damage award of only $12,000, where the plaintiff demonstrated $11,488.45 in medical bills. Id. at 1231(¶ 17). Thus, the question of the adequacy or inadequacy of damages will depend upon the facts of the particular case. Bradshaw, 809 So.2d at 621(¶ 36); Jesco, 451 So.2d at 705.

¶ 36. In the case sub judies, we find that the trial judge’s award of damages was inadequate, as it was not based upon substantial and credible evidence. It is undisputed that (1) Thompson now suffers from permanent cognitive defects, such as loss of language skill, mild dysnomia, reduced motor functioning and coordination, abnormally reduced attentional skills, mental slowness and inefficiency in learning, and visual perceptual difficulties; (2) Thompson’s potential earning capacity has been reduced due to these various, permanent cognitive defects; and (3) Thompson has experienced much pain and suffering. There is no indication in the trial court’s judgment that these undisputed damages were included in its award.

¶37. As noted above, Lee County argues repeatedly that Thompson will be able to receive all of the professional care and treatment he needs, medical, educational, and vocational, in the present and in the future “at no cost” from the state (bear in mind that Thompson is now roughly twenty-five years of age). We find this argument to be tenuous at best. While we certainly acknowledge that there may be some state-sponsored services and programs from which Thompson may receive some of his continuing treatment, we find it incredible, to say the least, to argue that Thompson will incur “no cost” whatsoever in his continuing battle with the permanent cognitive defects he now carries with him because of this accident. Not only do we doubt that the state can and will, in fact, offer all of these professional services to Thompson for free, but, even if we assume that the state can and will offer all of these professional services to Thompson now in the present, there is no way of knowing whether those so called cost-free services will continue to be available for the duration of Thompson’s needs in the future.

¶ 38. It is not clear from the record whether this untenable argument of Lee County bore any weight with the trial judge; but it is clear from the record that the trial judge did not adequately take into account all of the various undisputed items of damages demonstrated by Thompson.

¶ 39. Therefore, we reverse the award of damages as inadequate and unreasonably low, and we remand this issue to the trial court for a new trial to determine the proper measure of damages, bearing in mind all of the items of damages mentioned in this opinion.

¶ 40. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY IS REVERSED AND RENDERED IN PART, AND REVERSED AND REMANDED IN PART FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., BRIDGES AND LEE, P. JJ., CHANDLER, GRIFFIS AND ISHEE, JJ. CONCUR. IRVING, J., CONCURS IN RESULT ONLY. BARNES, J., NOT PARTICIPATING.


author: KING, C.J.,

text:
    Willie MAYES a/k/a Willie Clarence Jones, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00962-COA.
    Court of Appeals of Mississippi.
    Nov. 1, 2005.
    Rehearing Denied Jan. 17, 2006.

      Dan W. Duggan, Brandon, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   KING, C.J.,

for the Court.

¶ 1. On March 30, 2004, Willie Mayes was convicted by a jury in the Hinds County Circuit Court of possession of cocaine. Mayes was sentenced as an habitual offender to serve a term of sixteen years in the custody of the Mississippi Department of Corrections without the possibility of parole. Aggrieved, Mayes raises the following issues on appeal:

I. Whether the trial court erred in refusing jury instruction D-9.
II. Whether the trial court erred in not suppressing the confession.
III. Whether the trial court erred in not directing a verdict, or in the alternative, a judgment notwithstanding the verdict.

¶ 2. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 3. On June 14, 2002, officers of the Jackson Police Department Narcotics Unit were dispatched to Galilee Street after receiving several complaints about drug activity in the area. When the officers arrived, a vehicle containing three passengers was parked in the middle of the narrow street, while Mayes was standing outside of the vehicle at the passenger side window. Detective John Harris saw what he believed to be a hand-to-hand transaction between Mayes and one of the vehicle’s occupants. Harris emerged from his unmarked vehicle as Mayes began chewing a cigar wrapper filled with marijuana. Harris then handcuffed Mayes, arrested him for misdemeanor possession of marijuana, and ordered him to spit the marijuana out of his mouth. Detective Harris and Officer James McGowan testified that Mayes began putting up a fight as Harris searched Mayes’ person. During the search, Mayes tossed a small plastic bag on the ground which was later identified as crack cocaine. Harris read Mayes his Miranda rights before Mayes was transported to police headquarters. After arriving at the police station, Harris conducted a thorough search of Mayes’ body and found three small plastic bags of marijuana concealed in his groin area. Harris then called Detective Robert Shegog to his office to witness the interview process. After Shegog arrived, Harris read Mayes his Miranda rights for a second time from a standard form. Mayes initialed the form by each statement. According to Detec-five Harris, Mayes told him that he could give him information about persons possessing large amounts of crack cocaine if Harris could help Mayes with his impending charge. Harris told Mayes that Mayes’ lawyer would have to speak with the district attorney about any potential deal. Both Harris and Shegog testified at trial that no promise whatsoever was made to Mayes. Mayes then signed a rights waiver form and Harris proceeded to interview him. Among the standard preliminary questions, Harris asked whether Mayes had been forced to give a statement and whether any promises or' threats had been made in order to obtain a statement. Mayes answered in the negative to both questions. He then proceeded to make a statement that at the time of his arrest he possessed marijuana and a “crumb sack” of crack cocaine.

¶ 4. On March 4, 2004, Mayes filed a motion to suppress the statement given to Harris. Only Harris and Mayes testified at the suppression hearing which was held on March 22, 2004. Harris’ testimony revealed the above-stated facts. However, Mayes testified that after signing the waiver but before interrogation commenced, Harris told Mayes that Harris could help Mayes if Mayes would give Harris information about anyone possessing more than an ounce of crack cocaine. Mayes further testified that he only made the statement about possessing crack because of Harris’ alleged promise. The trial judge denied the motion to suppress finding that Mayes had been read his Miranda rights, read the rights himself, and signed the waiver form before any alleged offer had been made.

¶ 5. Both Harris and Mayes testified at trial. Additionally, the State called McGowan, Shegog and the drug analyst. The jury found that Mayes did possess crack cocaine at the time of his arrest.

ISSUES AND ANALYSIS

ISSUE I:

Whether the trial court erred in refusing jury instruction D-9.

¶ 6. Jury instructions must be read as a whole. Poole v. State, 826 So.2d 1222, 1230(¶ 27) (Miss.2002). While a defendant is entitled to have a jury instruction presenting his theory of the case, such instruction is properly refused if it states an incorrect legal standard, is fairly covered by another instruction, or if it lacks foundation in the evidence. Id. Mayes argues that his proposed jury instruction regarding the voluntariness of his confession should have been granted because it presented his theory of the case and because the instruction was supported by Mayes’ testimony.

¶ 7. The voluntariness and admissibility of a confession is to be decided by the trial court judge as a matter of law, while the weight and credibility to be given to a confession is within the sole province of the jury. Scott v. State, 878 So.2d 933, 968(¶ 96) (Miss.2004) (citing Wilson v. State, 451 So.2d 724, 726 (Miss.1984)). However, there is no requirement that a trial court grant a separate instruction on the weight and credibility to be given to a confession. Id. The jury had already been instructed that it was their exclusive province to determine the facts in the case and to weigh the evidence. Instruction D-9 did no more than instruct the jury that it was their duty to determine the weight to be given to Mayes’ confession. As such, the instruction was fairly covered elsewhere and properly refused.

ISSUE II:

Whether the trial court erred in not suppressing the confession.

¶ 8. “The standard of review regarding a trial judge’s ruling at a suppression hearing is whether substantial credible evidence was present to support the trial judge’s finding when evaluating the totality of the circumstances.” Greer v. State, 818 So.2d 352, 355(¶ 10) (Miss.Ct. App.2002). Since the trial judge sits as the finder of fact in determining the volun-tariness of a confession, this Court will not disturb the trial judge’s decision unless it is manifestly wrong. Id. at 355 (¶ 10).

¶ 9. The suppression hearing came down to Mayes’ version of the interrogation versus Harris’ version. Harris’ version of events was corroborated by the suspect statement form which quoted Mayes as saying that his statement was being freély and voluntarily given and was not the product of threats or promises. When the trial judge admitted Mayes’ confession, the judge decided as the fact-finder that Harris was the more credible witness. The trial court’s decision was based on substantial evidence after hearing the conflicting testimony from Harris and Mayes. We cannot say that the trial court judge was manifestly wrong in determining that Mayes’ confession was voluntary and admissible.

¶ 10. However, the suppression issue does not end here. Mayes argues not only that the trial court erred in determining that his statement was voluntary, but also that the court erred in not requiring the State to put Detective Shegog on the stand during the suppression hearing. Mayes relies on the case of Agee v. State, 185 So.2d 671 (Miss.1966), which prescribes the procedure the trial court must follow to determine whether a confession is coerced and involuntary. Under Agee, the State has the burden of proving the volun-tariness of a confession beyond a reasonable doubt. Id. at 673. The State may establish its prima facie case on the issue of voluntariness by presenting the testimony of an officer possessing personal knowledge that the confession was voluntarily made without coercion, threats or promises. Id. However, the defendant may then create a rebuttable presumption that the confession was involuntary by offering testimony that the confession was a product of violence, threats of violence, or offers of reward. Id. Agee further held that the State must then rebut the presumption by “offer[ing] all the officers who were present when the accused was questioned and when the confession was signed, or give an adequate reason for the absence of any such -witness.” Id. Mayes contends that the trial court committed reversible error in not requiring the State to -put Detective Shegog on the stand to rebut Mayes’ testimony. We disagree.

¶ 11. “Only those persons who are claimed to have induced a confession through some means of coercion are required to be offered by the State under Agee.” Abram v. State, 606 So.2d 1015, 1030 (Miss.1992) (citing Reid v. State, 266 So.2d 21, 26 (Miss.1972)). Mayes accused only Detective Harris of coercing him to make a statement. In fact, Mayes testified at the suppression hearing that although Shegog was present during interrogation, “he was way across the room and he couldn’t hear what was going on on our side of the room.” Therefore, the trial court did not err in not requiring Shegog to testify at the suppression hearing. This issue is without merit.

ISSUE III:

Whether the trial court erred in not directing a verdict, or in the alternative, a judgment notwithstanding the verdict.

¶ 12. While Mayes frames his final issue in terms of legal sufficiency, he also argues that the verdict was against the overwhelming weight of the evidence. In reviewing a challenge to legal sufficiency, this Court must view the evidence in the light most favorable to the State. Chambliss v. State, 919 So.2d 30, 34 (¶ 12) (Miss.2005). If “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,” the challenge to legal sufficiency must fail. Id. “[W]e 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.” Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005).

¶ 13. Mayes was indicted for knowingly possessing cocaine in an amount of more than one-tenth of a gram but less than two grams in violation of Mississippi Code Annotated § 41-29-139 (Rev.2001). Mayes testified that he did not possess cocaine at the time of his arrest. His testimony was the only evidence presented to the jury to support his contention. The jury heard the testimony of Officers Harris and McGowan who said that they saw Mayes toss the cocaine onto the ground. The jury also heard the testimony of the drug analyst who tested the contents of the bag Mayes threw on the ground. The analyst testified that the substance contained cocaine and weighed 1.35 grams. The jury also had Mayes’ confession that he possessed cocaine at the time of his arrest. In viewing the evidence in the light most favorable to the State, we find that any rational juror could have concluded that Mayes knowingly possessed cocaine at the time of his arrest, and that the verdict was not against the overwhelming weight of the evidence.

¶ 14. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF COCAINE AND SENTENCE AS AN HABITUAL OFFENDER TO SERVE A TERM OF SIXTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., BRIDGES, IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR.

      . Refused instruction D-9 reads as follows:
      The Court instructs the jury that unless you believe beyond a reasonable doubt that any alleged confession of Willie Mayes that was included in the evidence presented to you in this case was truthful and made by Willie Mayes of his own freewill, and not extorted by threat of harm or promise of benefit, you are to disregard any such alleged confession in reaching your verdict.
      However, if you believe beyond a reasonable doubt that any such alleged confession by Willie Mayes was truthful, and made by Willie Mayes of his own freewill, not extorted by threat of harm or promise of benefit, you may consider such confession, if any, in reaching your verdict.
      As with all evidence, it is for the jury to determine what, if any, worth and credibility to give any alleged confession.

      . See Thorson v. State, 653 So.2d 876, 888 (Miss.l994)(explaining that Agee was decided two months before Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and although ''[tjhe principle enunciated in Agee remains sound, [ ] its importance to an accused has receded in view of the strong affirmative mandates of Miranda.”)


author: BARNES, J.,

text:
    A.E.W., Appellant v. STATE of Mississippi, Appellee.
    No. 2004-CA-02245-COA.
    Court of Appeals of Mississippi.
    Feb. 14, 2006.
    Jim Davis, Gulfport, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
   BARNES, J.,

for the Court.

¶ 1. A.E.W. was arrested by the Biloxi Police Department on June 18, 1979, and indicted for the charge of “unnatural intercourse” pursuant to section 97-29-59 of the Mississippi Code (1972). On August 28, 1980, the charge was passed to the inactive file.

¶ 2. A.E.W. twice sought to have the charge expunged by the Circuit Court of Harrison County. This is an appeal from the second and supplemental motion to expunge which was denied. A.E.W. argues that the lower court erred in not granting his petition for expungement, and that in applying Mississippi Code Annotated section 99-15-26(5) the lower court did not have discretion to deny an expungement of a case which has been dismissed or in which the charges have been dropped.

¶ 3. We find that the circuit court erred and therefore reverse its decision.

FACTS

¶ 4. On June 18, 1979, A.E.W. was arrested by the Biloxi Police Department, and charged with “unnatural touching.” He was subsequently indicted for the charge of “unnatural intercourse” and tried before a jury which was unable to reach a verdict. On August 28, 1980, the charge was passed to the inactive file. A.E.W. was also arrested on October 25, 1980, by the Biloxi Police Department and charged with rape, but these charges were dismissed at a preliminary hearing on January 7, 1981. There was no indictment.

¶ 5. On February 22, 2002, A.E.W. filed a petition to expunge both arrests. A.E.W. indicated to the court that he had attempted to hold numerous jobs, but had been terminated or not hired because of his arrests in 1979 and 1980. After the hearing on his motion, the court agreed to expunge the rape arrest, but refused to expunge the unnatural intercourse arrest. The court ruled that the arrest should show “that there was simply a charge and the State ended up passing it to the files.” A.E.W.’s subsequent supplemental motion to expunge was denied.

DISCUSSION

¶ 6. At the time of the first hearing, Mississippi Code Annotated section 99-15-26(4) stated:

The court may expunge the record of any ease in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case.

(Emphasis added).

¶ 7. The section was subsequently amended and changed to Mississippi Code Annotated section 99-15-26(5) and now reads:

Upon petition therefor, the court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case.

(Emphasis added).

¶ 8. The State takes the position that expungement is not proper in any case in which there is any potential that prosecution could become active again, even this twenty-five-year-old case which has long been passed to the inactive file. However, the State does not explain how such an unusual prosecution would not be violative of A.E.W.’s constitutional and statutory rights to a speedy trial. We fail to see how A.E.W. could be prosecuted for a charge which has been dormant for over twenty-five years. If the phrase “there was no disposition of such case” does not apply to a ease in which no disposition has been reached in twenty-five years, we do not see when it ever would apply. The trial judge opined that the possibility of the case coming “back to life” was as likely as the State’s attorney being “on the next space shuttle.”

¶ 9. In denying expungement of the 1979 charge, however, the trial court determined that the statute should not be applied “retroactively.” This ruling was based upon the statute’s recitation of a 1983 “effective date.” While the “effective date” provision is confusing, we find the trial court’s reliance upon it to be misplaced.

¶ 10. When section 99-15-26 was first enacted in 1983, the statute only concerned non-adjudicated cases. Subsection (4) provided that the act would “take effect and be in force from and after its passage and [would] stand repealed from and after July 1, 1987....” The effective date of the act was March 31, 1983. In 1987, the legislature removed, the repealer contained in subsection (4), and the revised subsection (4) merely provided that the section would “take effect and be in force from and after March 31, 1983.” The first time section 99-15-26 provided for expungement was in 1996 when the legislature provided that the court “may expunge the record of any case” in which the arrestee was released, the case dismissed, the charges dropped or there was no disposition. This expungement provision became subsection (4), and the prior effective date was carried forward into subsection (5). In 2003, the statute was finally revised to provide that “[u]pon petition therefor, the court shall expunge the record of any [such] case ...” Due to changes regarding non-adjudicated cases, the expungement subsection was moved to subsection (5), and the effective date provision of the original code section was carried forward as subsection (6).

¶ 11. We find that the trial court erred in relying upon the March 31, 1983 effective date to determine that the court was not required to expunge cases which arose prior to 1983. The effective date clearly deals with the original statutory provisions regarding non-adjudicated cases, not with expungement, which was introduced thirteen years later.

¶ 12. In McGrew v. State, 733 So.2d 816, 819 (¶ 22) (Miss.1999), the supreme court specifically found that subsection (4), granting the circuit and county courts the power to expunge public records in certain instances, was independent from and did not implicitly relate back to the subsections dealing with non-adjudicated cases. Id. The court determined that a trial court has authority under subsection (4) to expunge cases concerning “crimes against the person” although such cases are not appropriate for non-adjudication under subsection (1). Id. We find nothing in the statute limiting former subsection (4) (current subsection (5)) expungement to crimes committed after 1983. The subsection clearly provides for expungement in “any case,” without limit as to the date. Had the legislature so intended, the statute could have easily provided for ex-pungement in “any case arising after March 31, 1983.” The legislature did not do so, and we do not find that the effective date regarding non-adjudication should be read to modify the term “any case” in the expungement subsection which did not come into existence until more than thirteen years thereafter. Further, if the trial court’s analysis were correct, the court would have had no authority to expunge the record of the 1980 arrest for rape as it, too, arose prior to 1983.

¶ 13. The argument of the State, stressing the “detestable abominable” nature of the crime of which A.E.W. was so long ago accused, presupposes that A.E.W. is guilty of the crime of which he was never convicted. We note that the legislature made no exception to expungement for “detestable abominable” crimes. In McGrew, the supreme court determined that expungement was not excluded for “crimes against the person.” As the legislature has determined that expungement is applicable to “all cases,” we are without authority to engraft exceptions thereto. Furthermore, in McGrew, the court explained the purpose of expungement:

Prohibiting expungement would serve as a tremendous obstacle to those who were arrested, but whose case was dismissed or the charges dropped or there was no disposition of such case. Although such person was deemed innocent in a court of law, without the opportunity for expungement, he or she would always be guilty in the all important court of public opinion.

Id. at 820(¶ 27).

¶ 14. In the instant case, A.E.W. has established that, by being denied employment opportunities because of the 1979 arrest, he has been convicted in the “court of public opinion.” We find that the legislature enacted section 99-15-26(5) to remedy situations of this exact nature. Had the State had sufficient evidence to retry A.E.W. for the 1979 incident, it should have done so within the next twenty-five years. We find that the trial court was without discretion to deny A.E.W.’s motion to expunge the 1979 arrest following the 2003 amendment to section 99-15-26. This Court therefore reverses and remands with direction to the circuit court that expungement be granted.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS REVERSED AND REMANDED. ALL COSTS OF APPEAL ARE ASSESSED TO HARRISON COUNTY.

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

      . The appellant’s initials have been used to help preserve his anonymity due to the nature of the relief which is sought.