text:
    Keith David WARD, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-01415-COA.
    Court of Appeals of Mississippi.
    Dec. 6, 2005.
    Rehearing Denied April 18, 2006.

      Keith David Ward, appellant, pro se.
    James (Jay) R. Foster, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C.J., IRVING and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Keith David Ward was indicted on the charge of murder and tried by jury in the Circuit Court of Harrison County. The jury found Ward guilty of manslaughter, and he was sentenced to seventeen years in the custody of the Mississippi Department of Corrections. Aggrieved, Ward appeals to this Court. Finding no error, we affirm.

FACTS

¶ 2. Ward lived in a home in Gulfport with Robert Hinton. Hinton owned the home, and Ward paid rent to him in the amount of $300 per month under an informal agreement. Testimony at trial indicated that on June 23, 2001, Ward and Hinton were at the beach drinking beer with other individuals. This was an almost daily event for the two men. One witness testified that, at approximately 2:15 p.m., Hinton told Ward that he must move out of his house by the first of the month. Ward responded by threatening Hinton. Then, at 4:00 p.m., Ward became involved in a dispute with another person on the beach. After this dispute, Ward left the beach, but Hinton remained.

¶ 3. Carmen Fobbs, who lived across the street from Hinton’s house, testified that while she was sitting on her porch on the afternoon of June 23, 2001, Ward approached her and offered to sell her some meat from his refrigerator, because he “didn’t want [Hinton]” to eat it. She purchased the meat from Ward for $10, whereupon he returned to Hinton’s house. Ward later returned to Fobbs’ house, claiming that he had been down to the beach and had an argument with Hinton. Ward again departed, but returned approximately thirty minutes later. Initially, Ward sat down and watched television at Fobbs’ house. Then, a child who was under Fobbs’ care noticed that Ward’s foot was bleeding. Fobbs cleaned the wound with peroxide, whereupon Ward blurted out that he had “killed that son of a bitch.” Fobbs testified that she was incredulous, so she walked across the street to Hinton’s house. Without entering the house, she peeked through the door and verified that there was a motionless body on the floor. She then returned to her home and informed Ward that Hinton was indeed dead, and that Ward would have to call 911. Ward agreed, but asked that he be allowed to finish his beer and a cigarette before he made the call. Fobbs then called 911.

¶ 4. Officer Eddie Hilliard and Officer Joey McCormick answered the 911 call and investigated the scene. Officer Hilli-ard testified that he and Officer McCormick spoke with Ward when they first arrived. Ward informed the officers that he had been fighting with “that man.” When asked where “that man” was, Ward replied that he was in the house, “dead.” The officers then handcuffed Ward, and proceeded to the house, where they discovered the lifeless body of Hinton, covered in blood from head to foot.

¶ 5. Meanwhile, Ward was placed in an ambulance to be taken to the hospital and treated for the injury of his foot. Dorothy Jean Cooley, a neighbor of Fobbs and Ward, testified that she witnessed Ward being lifted into the ambulance. As Ward was being placed in the ambulance, she stated that he turned to her and exclaimed, “I told you I got him.”

¶ 6. Dr. Paul McGarry, the pathologist who performed the autopsy of Hinton, testified at trial as an expert for the State. Dr. McGarry explained that when he examined the body of Hinton, it was completely covered with blood. He testified that Hinton had sustained massive head injuries caused by blows from a heavy object. These injuries had caused significant damage to the underlying tissues of Hinton’s head, and fragments of bone had been driven downward into his brain. The injuries to Hinton’s head included a crushed forehead, broken nose, fractured cheeks, and fractured upper and lower jaw. Dr. McGarry testified that these injuries indicated that the blows had been inflicted repeatedly, that Hinton had not been moving his head when the blows were applied, and that Hinton was therefore in a “relatively defenseless position” while he was being hit. Dr. McGarry also testified that Hinton had “cut wounds and bruises of both hands, elbows, left arm,” which McGarry identified as defensive wounds. Finally, Dr. McGarry noted that Hinton had two stab wounds to his neck, one cutting the jugular vein, and one cutting the trachea.

¶ 7. Ward testified in his own defense. He stated that, on June 23, 2001, he had walked down to the beach at approximately 12:00 p.m., and that he saw Hinton there. Ward claims that he and Hinton became involved in a dispute over Ward’s behavior toward a woman who had walked by. As a result of the dispute, Ward returned to the house at approximately 3:00 p.m., while Hinton remained at the beach. Ward testified that he and Hinton had not been speaking “for the last few days and now what had happened down at the beach it looked like things were starting to escalate.... ” Ward stated that he sold the remaining meat in his refrigerator to Fobbs; however, he claims that he did so because he expected Hinton to force him to move out the next day, not because he wanted to prevent Hinton from eating the meat.

¶ 8. Ward explained that he was sitting at the breakfast bar at the house when Hinton returned in the evening. He recalled that Hinton walked into the house and demanded that Ward vacate the premises immediately. After an argument, Hinton initially seemed to let the issue drop, but then turned and “sucker-punched” Ward. Ward and Hinton immediately began wrestling and “clutching,” until they crashed through a table. Ward testified that at this point he was able to get “a tag in on [Hinton].” Hinton then turned and headed for the kitchen, telling Ward “I’m going to cut your throat.” Ward stated that he knew there was a knife in the kitchen, so to prevent Hinton from reaching the knife, he took a piece of wood from the broken table and hit Hinton over the head. Ward admitted that he repeatedly struck Hinton in the head with the wooden board, but claimed that he did so because he feared that Hinton would get back to his feet, take the knife, and kill Ward. Ward then took the knife that Hinton had purportedly been attempting to reach and stabbed Hinton in the neck in two quick motions. Ward testified that the beating and stabbing of Hinton was necessary because if he allowed Hinton “to get the upper hand,” then Ward would be “dead meat.”

¶ 9. Ward was indicted for the murder of Hinton. Trial was held in the Circuit Court of Harrison County on April 29 and 30, 2003. Ward argued at trial that his actions were justified as self-defense. The jury found, however, that he was guilty of manslaughter. On appeal, Ward argues through counsel that the trial court erred in allowing the expert testimony of Dr. McGarry because the State provided incomplete discovery, that the trial court should have allowed Fobbs to testify to a statement made by Ward to Fobbs, that the trial court improperly denied a motion for a directed verdict, and that the trial court erred in granting a manslaughter instruction. In addition, Ward argues in a brief he submits pro se that his trial counsel was constitutionally ineffective. For these reasons, Ward states that he is entitled to a new trial.

I. WHETHER THE STATE VIOLATED THE RULES OF DISCOVERY AND THEREFORE THE TRIAL COURT ERRED BY DESIGNATING DR. PAUL MCGARRY AS AN EXPERT WITNESS

¶ 10. Ward argues that the State violated Rule 9.04 of the Uniform Rules of Circuit and County Court Practice by failing to disclose the basis and substance of Dr. McGarry’s opinion prior to trial. Particularly, Ward complains that he was not aware prior to trial that Dr. McGarry would testify to defensive wounds found on Hinton’s body. Ward claims that he was only provided the autopsy report prior to trial, and that McGarry testified outside the scope of this report. Thus, Ward argues, much of McGarry’s testimony was heard by the defense for the first time at trial. The State counters that any information regarding Dr. McGarry’s testimony was provided to defense counsel orally pri- or to trial, and that defense counsel was well aware of the testimony which was offered by Dr. McGarry by the time trial commenced. We find that no discovery violation justifying a new trial has occurred.

¶ 11. Rule 9.04 of the Uniform Rules of Circuit and County Court Practice holds, in relevant part:

A. Subject to the exceptions of subsection “B”, below, the prosecution must disclose to each defendant or to defendant’s attorney, and permit the defendant or defendant’s attorney to inspect, copy, test, and photograph upon written request and without the necessity of court order the following which is in the possession, custody, or control of the State, the existence of which is known or by the exercise of due diligence may become known to the prosecution:
4. Any reports, statements, or opinions of experts, written, recorded or otherwise preserved, made in connection with the particular case and the substance of any oral statement made by any such expert....

¶ 12. “This Court is limited in reversing a trial court’s actions regarding discovery issues. We may reverse a trial judge’s ruling regarding discovery issues only if we find an abuse of discretion.” Moore v. State, 822 So.2d 1100, 1107 (¶ 19) (Miss.Ct.App.2002) (citing Conley v. State, 790 So.2d 773, 782 (¶ 20) (Miss.2001)).

¶ 13. It is clear that the trial judge did not abuse his discretion in finding that there had been no discovery violation in the instant case. Although Ward claims that he was not provided with sufficient information regarding Dr. McGarry’s testimony to “properly prepare for cross-examination ... hire experts ... [or] properly prepare for trial,” we find from the record that Ward’s counsel at trial was well aware of the testimony which Dr. McGarry proposed to offer. The following colloquy occurred between the trial judge and Ward’s counsel:

BY THE COURT: ... Do you agree that [defense counsel] ha[s] had extensive conversations about what Dr. McGarry’s testimony is going to be concerning whether behavior or actions were consistent with self-defense based on the autopsy?
BY MR. RAFFERTY: Absolutely, Judge. Since the beginning — just wanted to get his basis of his opinion, substance of his opinion.
BY THE COURT: And you’ve got that. It’s not in writing but you’ve got that? BY MR. RAFFERTY: Yes, sir, Judge. We have spoken to them.

¶ 14. The record also indicates that defense counsel had received a letter from the State prior to trial which stated that Dr. McGarry would testify to the existence of defensive wounds on Hinton’s body, and that defense counsel had interviewed Dr. McGarry on at least two separate occasions, once prior to trial and once on the morning of the trial. This being the case, even if the information provided by the State was somehow inadequate, defense counsel had two different opportunities to question Dr. McGarry as to the full extent of his proposed testimony at trial. And, as the above colloquy between the trial judge and defense counsel indicates, defense counsel did exactly this, and was well aware of Dr. McGarry’s proposed testimony.

¶ 15. In Moore, this Court found that there had been no discovery violation when the defense was apprised of expert testimony by a phone call and then later a faxed report. Moore, 822 So.2d at 1107. The Court noted that the defendant had ample opportunity to secure his own expert witness, but that he failed to do so. Id. Similarly, we can find no prejudice here where the defense was made aware of the substance of Dr. McGarry’s opinion prior to trial, even if the disclosure was oral. This issue is without merit.

II. WHETHER THE TRIAL COURT ERRED BY REFUSING TO ADMIT A HEARSAY STATEMENT MADE BY THE DEFENDANT

¶ 16. Ward argues that his counsel at trial should have been allowed to question Fobbs as to a statement made by Ward to Fobbs regarding a statement made by Hinton to Ward. Specifically, Ward claims that Hinton had threatened to kill Ward, and that Ward had told Fobbs about this threat made on his life. This statement, according to Ward, should be allowed under Rule 803(3) of the Mississippi Rules of Evidence, which contains a hearsay exception for “A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition ... but not including a statement of memory or belief to prove the fact remembered or believed .... ” The State urges that the statement is self-serving, and therefore was properly excluded as hearsay.

¶ 17. Our standard of review on questions of the admission of evidence by the trial court is an abuse of discretion standard. Adams v. State, 851 So.2d 366, 374 (¶ 21) (Miss.Ct.App.2002) (citing Clemons v. State, 732 So.2d 883, 887-88 (¶ 18) (Miss.1999)). There is no question that the statement involved herein is hearsay, and it is furthermore double hearsay, which implicates Rule 805 of the Mississippi Rules of Evidence. Rule 805 provides that “[hjearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.” Thus, “[ejach hearsay part must qualify under an exception to be admissible.” Rule 805 cmt.

¶ 18. Breaking this proposed testimony into two parts, we find that the first alleged statement is a statement by Hinton to Ward that Hinton intended to kill Ward. Clearly this is inadmissable hearsay, because it is being offered for the direct purpose of proving that Hinton had threatened Ward. This is exactly the type of statement intended to be excluded by Rule 803(3), that is, “a statement of memory or belief to prove the fact remembered.” Since the statement purportedly made by Hinton to Ward must be excluded, any statement made by Ward to Fobbs regarding that statement must be excluded as well. Furthermore, we agree with the State that “the defendant is barred from introducing a statement made by the defendant immediately after the crime, if it is self-serving, and if the State refuses to use any of it.” Nicholson ex rel. Gollott v. State, 672 So.2d 744, 754 (Miss.1996). Accord Tigner v. State, 478 So.2d 293, 296 (Miss.1985); Jones v. State, 342 So.2d 735, 736-37 (Miss.1977). Any statement made by Ward to Fobbs regarding threats made by Hinton to Ward would serve Ward’s argument at trial that his actions were justified in self-defense. Therefore, the statement is self-serving and was properly excluded by the trial judge.

III. WHETHER THE TRIAL COURT ERRED BY REFUSING TO GRANT A DIRECTED VERDICT

¶ 19. Ward contends that the trial court should have directed a verdict in his favor at the conclusion of trial. He argues that, under the Weathersby Rule, the only evidence the jury could properly consider was his own testimony, and, implicitly, that the evidence was therefore insufficient to sustain a verdict. The State replies that there is ample admissible evidence supporting the verdict, including the expert testimony of Dr. McGarry. We agree with the State that evidence exists which created a jury question. Furthermore, even assuming arguendo that there was no evidence outside of Ward’s testimony, we find that Ward’s testimony itself supports the jury verdict of manslaughter.

¶ 20. “[I]n considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict ... the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that the accused committed the act charged’.... ” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). The trial court must ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Therefore, we review the evidence in the light most favorable to the prosecution, and determine whether it is sufficient to create a jury question for each element of the crime. Here, Ward was convicted of manslaughter. The elements of manslaughter are laid out in Mississippi Code Annotated section 97-3-35, and include (1) the killing of a human being, (2) without malice, (3) in the heat of passion, (4) but in a cruel or unusual manner, or by the use of a dangerous weapon, (5) without authority of law, (6) and not in necessary self-defense.

¶ 21. It is clear that ample evidence was presented at trial to meet all of the elements of the crime of manslaughter. By Ward’s own admission, he killed Hinton during a dispute that involved physical violence. Ward admitted that he had repeatedly struck Hinton on the head with a wooden board, and that he had stabbed Hinton in the neck with a filet knife while Hinton was on the ground. These facts alone establish that there was a killing of a human being in the heat of passion in a cruel and unusual manner or by the use of a dangerous weapon. The only real question was whether Ward’s actions were in necessary self-defense. We find that the State introduced sufficient evidence at trial to allow the jury to find, beyond a reasonable doubt, that Ward’s actions were not in necessary self-defense. Ward admitted in cross-examination that he landed a blow on Hinton, after which point Hinton “was losing advantage.” He further admitted that Hinton struck him only one time at the beginning of the fight, that the only injury Ward sustained was a cut on his foot, and that Hinton was moving away from him when he began to beat Hinton with the wooden board. Ward testified that he beat Hinton with the board on the back of the head until Hinton fell down. Then, Ward continued to beat Hinton on the face while he lay on the ground, saying at trial, “I wasn’t stopping. I didn’t know when to stop ... I was continually, you know, trying to beat him down. When he finally went down I couldn’t, you know, I started just pushing the board into his face, hitting him in the face.” Finally, Ward took a filet knife which he claims Hinton was trying to reach and stabbed Hinton twice in the neck.

¶ 22. The autopsy report and Dr. McGarry’s testimony provide further evidence on which a jury could make a determination. Dr. McGarry testified that Hinton had been hit in the back of the head and in the face multiple times, and with such ferocity that his cheeks, nose, and jaw had been shattered. Pieces of bone had been driven into Hinton’s brain, and the stab wounds to his neck had severed the jugular vein and the trachea. Importantly, Dr. McGarry noted that there were cuts and bruises on Hinton’s arms which indicated that Hinton had been attempting to cover his face during the attack. Also, the pattern of the board strikes on Hinton’s face were perpendicular, indicating that Hinton’s head had not been moving when many of the blows on his face were struck. These facts tend to show that Hinton was not truly a threat to Ward, and that, in fact, Hinton had been helpless and later immobilized as Ward continued his assault.

¶23. Photographs of the crime scene showed tremendous amounts of blood, including blood on the walls and the ceiling of the house, suggesting that the beating of Hinton had been particularly severe and ferocious. Finally, Ward’s admissions to neighbors who were present at the crime scene that he had “got” Hinton, indicated that Ward’s actions had not been in necessary self-defense.

¶ 24. We find that Ward’s reliance on the Weathersby Rule is misplaced, since a jury verdict for manslaughter could be reached on Ward’s testimony alone. Furthermore, the evidence introduced at trial includes an autopsy report, the expert testimony of Dr. McGarry, and the admissions made by Ward and testified to by witnesses at trial, all of which support a verdict of manslaughter. The Weathersby Rule has no application here.

¶ 25. Viewing this combined evidence in the light most favorable to the prosecution, we find that the trial court did not err in denying the motion for a directed verdict. There was sufficient evidence on which a jury could find, beyond a reasonable doubt, that Ward did not act in necessary self-defense.

IV. WHETHER THE TRIAL COURT ERRED BY GRANTING A MANSLAUGHTER INSTRUCTION

¶ 26. Ward contends that the trial court improperly granted a manslaughter instruction based solely on the fact that Ward and Hinton were involved in an argument earlier in the afternoon of June 23, 2001. Ward argues that this instruction was not justified by the facts and that it allowed the jury to reach a “compromise verdict.” The State replies that if the facts presented to the jury support a murder instruction, then the facts support a manslaughter instruction as well.

¶ 27. “When there is a jury issue on the question of murder, the defendant cannot object to a grant by the court of a manslaughter instruction.” Barnes v. State, 854 So.2d 1, 6 (¶ 19) (Miss.Ct.App.2003) (citing Crawford v. State, 515 So.2d 936, 938 (Miss.1987)). “When presented with facts from which the jury could infer the predicate state of mind of the defendant, it is permissible for the jury to use such inferences to find the defendant guilty of manslaughter rather than murder.” Id. (citing Jackson v. State, 740 So.2d 832, 834 (¶ 8) (Miss.1999)).

¶ 28. In the instant case, it is abundantly clear that the facts supported a jury instruction of manslaughter. Ward testified that “things were starting to escalate” with Hinton, and witnesses testified that Ward and Hinton had been involved in a dispute at the beach earlier in the afternoon. Further, Ward’s testimony established that he had been “sucker-punched” by Hinton when he returned home that evening, and that a struggle between the two immediately ensued. These facts would allow a jury to determine that Ward had killed Hinton in the heat of passion, and not with malice aforethought. The instruction was properly given.

V. WHETHER WARD WAS DENIED CONSTITUTIONALLY EFFECTIVE ASSISTANCE OF COUNSEL

¶ 29. Ward’s submits his final issue pro se, claiming that his trial counsel was constitutionally ineffective. Our standard of review on questions of constitutionally ineffective counsel is very deferential. The defendant bears the burden of showing that:

the trial judge, as a matter of law, had a duty to declare a mistrial or to order a new trial, sua sponte on the basis of trial counsel’s performance. Inadequacy of counsel refers to representation that is so lacking in competence that the trial judge has the duty to correct it so as to prevent a mockery of justice.

Colenburg v. State, 735 So.2d 1099, 1102 (¶ 8) (Miss.Ct.App.1999) (citing Parham v. State, 229 So.2d 582, 583 (Miss.1969)). On direct appeal, our inquiry on this issue is limited to the facts which are contained strictly in the record, and not upon mere assertions in briefs. Id.

¶ 30. The test for ineffective assistance of counsel was established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Our supreme court has stated the test as (1) whether counsel’s overall performance was deficient and (2) whether or not the deficient performance, if any, prejudiced the defense. Taylor v. State, 682 So.2d 359, 363 (Miss.1996). The burden is on the defendant to prove both prongs, and the adequacy of counsel is measured by a totality of the circumstances. Id.

¶ 31. Ward argues only one ineffective act on behalf of his trial counsel: that counsel failed to interview or subpoena witnesses who could explain defense exhibit 2 to the jury. Defense exhibit 2 is a picture of Ward’s face taken when Ward was brought to the hospital following the incident in question, which Ward claims shows a bruise from being “sucker-punched” by Hinton. Ward claims that the bruise was not clear in the picture, and that his counsel should have interviewed the “nurses, doctors, police, and photographer” present at the hospital who had seen the bruise on Ward’s face. This argument is disingenuous. Proof of a bruise on the side of the face was unnecessary in light of the fact that Ward claimed that Hinton had “sucker-punched” him, and this testimony was uncontradicted. The jury was able to reach a verdict of manslaughter even accepting that Hinton had thrown the first punch. Whether or not the picture showed a bruise is not relevant, and this issue is therefore clearly without merit.

¶ 32. Furthermore, Ward’s argument is not supported by the record. As such, it amounts to a mere assertion in a brief. Thus, this issue is barred on direct appeal. Colenburg, 735 So.2d at 1102 (¶ 8).

¶ 33. We find that the trial court did not err on any of the five issues presented by Ward on appeal. We therefore affirm the judgment of the trial court.

¶ 34. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF SEVENTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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

      . In a pro se brief he filed on his behalf in this appeal, Ward describes the event as follows: Mr. Ward repeatedly swung and beat-on Mr. Hinton with this board while Mr. Hinton continued to get to the knife. Finally Mr. Hinton fell to the ground in the kitchen where the counter to the knife was located. Mr. Ward continued to strike Mr. Hinton with the board not knowing to what extent he had hurt Mr. Hinton, so not knowing whether Mr. Hinton would get up and continue his threat, Mr. Ward discarded the board and grabbed the knife Mr. Hinton was trying to get and stabbed Mr. Hinton in the neck.

      . The Weathersby Rule provides that:
      where the defendant or the defendant's witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts, or by the facts of common knowledge.

        Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933).


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Frederick Wesley, CHASEZ, Jr., Appellant v. Kelly Sue Powell CHASEZ, Appellee.
    No. 2004-CA-00679-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2005.
    Rehearing Denied May 2, 2006.
    Certiorari Denied July 20, 2006.

      Briley Richmond, attorney for appellant.
    David R. Daniels, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   KING, C.J.,

for the Court.

¶ 1. Frederick Chasez was thrice found to be in willful and contumacious civil contempt. Aggrieved by the third finding of contempt by the chancellor, Mr. Chasez asserts the following issues on appeal:

1. That the Court lacked jurisdiction to try the contempt matter because Appellant was not properly served with a Mississippi Rules of Civil Procedure Rule 81 summons notifying him of the date and location of the hearing;
2. Appellant was found guilty of contempt for a matter which he had previously been found in contempt, and had purged himself of;
3. The award of attorney’s fees was unreasonable.

Finding no merit to Mr. Chasez’s claims, this Court affirms.

FACTS

¶ 2. On July 11, 1997, Kelly Chasez filed for divorce from Frederick Chasez on the basis of habitual cruel and inhuman treatment. In a temporary order entered August 20, 1997, the chancellor awarded Mrs. Chasez physical custody of the two minor children, and ordered Mr. Chasez to pay $300 a month in child support. After a hearing on April 15 and 16, 1999, the chancellor executed a judgment of divorce on April 22, 1999. In granting the divorce, the chancellor noted that the record was insufficient to make a decision on child custody. He ordered that the temporary legal custody of the children be placed with the Department of Human Services (DHS), and directed that DHS conduct a home study and report back to the court within 120 days. After the DHS report was submitted to the chancellor, he gave Mrs. Chasez physical custody of the children, and ordered that both parents complete a parenting course and forty hours of counseling. The chancellor also found that Mr. Chasez had a $3,600 arrearage for twelve months of unpaid temporary child support, and directed that it be paid within forty-five days.

¶ 3. Mr. Chasez failed to pay any child support, and on June 7, 2000, Mrs. Chasez filed a complaint for contempt. Mrs. Cha-sez’s attorney noticed her complaint for contempt for hearing on June 15, 2000. Mrs. Chasez’s attorney mailed a copy of this notice to Mr. Chasez. There is no indication on the case docket that a Rule 81 summons was issued for the contempt hearing. Mr. Chasez, acting pro se, appeared and indicated his willingness to proceed and the court heard the contempt. The chancellor found that Mr. Chasez had absolutely refused to pay any child support for nearly two years, and was therefore in arrears by $7,800. The chancellor held Mr. Chasez in contempt, and ordered him incarcerated, until he purged himself of that contempt. On August 12, 2000, having received the assurance of Mr. Chasez of his intent to comply with the court’s orders, the chancellor ordered Mr. Chasez released.

¶ 4. Mrs. Chasez filed a second complaint for contempt on April 15, 2002. A Rule 81 summons was issued in conjunction with this complaint. By order dated April 8, 2003, the court found that Mr. Chasez had made no attempts to pay child support, and was in arrears by $17,400, exclusive of interest. The chancellor found that while Mr. Chasez was not employed, he did have marketable skills, and had no impediments which would prevent his employment. The chancellor found that Mr. Chasez’s unemployment was a scheme to avoid child support. As a result, the chancellor found Mr. Chasez in contempt and ordered him incarcerated until he purged himself by either paying the full $17,400, or by paying $5,000 and executing an agreed order to pay $200 a month in additional support until the ar-rearage was satisfied. On July 22, 2003, Mr. Chasez paid $5,000 of the arrearage and agreed to pay current child support at $300 a month, plus $200 a month towards the arrearage. In that same order, the chancellor set a compliance review for August 29, 2003, in Gulfport. In an order dated December 3, 2003, the court denied Mr. Chasez’s motion to hold in abeyance child support, and set a show cause hearing for December 15, 2003, in the chancery courtroom in Gulfport.

¶ 5. On February 25, 2004, the court heard Mr. Chasez’s motion for reconsideration of his request to hold in abeyance child support, the show cause order, and Mrs. Chasez’s motion for attorney fees.

¶ 6. In an order dated March 10, 2004, the chancellor found that Mr. Chasez continued to fail in his obligation to pay current child support and the additional sum agreed upon for delinquent child support, and therefore found that he was in contempt. The court ordered Mr. Chasez incarcerated until he purged himself, suspended the incarceration until the next hearing, and set the next hearing in this case for April 1, 2004, in Hancock County. Aggrieved by that action, Mr. Chasez has appealed.

ISSUES AND ANALYSIS

¶ 7. Since Mr. Chasez’s contempt would have been discharged by his doing that which he previously refused to do, his contempt was civil. Common Cause of Mississippi v. Smith, 548 So.2d 412, 415 (Miss.1989). The chancellor’s finding of civil contempt is subject to review under a manifest error standard. Dennis v. Dennis, 824 So.2d 604, 608(¶ 7) (Miss.2002). However, the chancery court’s interpretation and application of the law is reviewed under a de novo standard. Isom v. Jernigan, 840 So.2d 104, 106(¶ 6) (Miss.2003).

I. Requirement of Notice in a Contempt Hearing

¶ 8. Mr. Chasez claims that the chancery court lacked jurisdiction to try his contempt matter because no complaint or Rule 81 summons notifying him of the last contempt proceeding was issued. Since Mr. Chasez is only challenging the notice requirements under Rule 81 of the Mississippi Rule of Civil Procedure, not the sufficiency of the contempt itself, we will only discuss that which pertains to notice.

¶ 9. Domestic relations cases, such as this one, remain subject to recurring motions even after all prior contested matters are resolved. Sanghi v. Sanghi, 759 So.2d 1250, 1253 (¶ 13) (Miss.Ct.App.2000). Although courts do maintain personal jurisdiction over parties in relation to these recurring motions, certain Rule 81 matters, because of their special nature, require special notice. Powell v. Powell, 644 So.2d 269, 274 n. 4 (Miss.1994). Rule 81 applies to matters where the parties seek to modify, or enforce final custody, alimony, or support judgments. Sanghi, 759 So.2d at 1253 (¶1 3). This includes contempt matters. M.R.C.P. 81(d)(2). The only requirement under Rule 81 is that the summons contain a statement notifying a party of the time and place for the hearing, and that no answer is needed. Sanghi 759 So.2d at 1256 (¶ 28). Sample forms that set out the summons indicate the case name, suit number, name of person being served, an attached copy of the petition and a statement that notifies that failure to appear may result in a judgment with monetary or other consequences be shown on the summons. Id. (citing M.R.C.P. form ID). While the use of the forms is are not mandatory, the use of them removes sufficiency questions under the Rule. Id.

¶ 10. The “notices” that Mr. Cha-sez received from the Eighth Chancery Court District Administrator were clearly not Rule 81 summonses. While these “notices” did contain most of the required information, they did not contain a statement that the respondent was not required to respond in writing. The “notices” were also issued by the court administrator as opposed as to the chancery clerk.

¶ 11. The issue Mr. Chasez raises closely resembles that decided in Sanghi. In Sanghi, Dr. Sanghi, the defendant, was issued several motions, including one for contempt for failure to pay child support, along with a “notice” of appearance by the Eighth Chancery Court District court administrator. Sanghi, 759 So.2d at 1254(¶ 16). Although the “notice” contained much of what is required for a Rule 81 summons, it was not a Rule 81 summons. Id. at 1256 (¶ 28). Like Mr. Cha-sez’s “notice”, Dr. Sanghi’s “notice” had no statement delineating that Dr. Sanghi was not required to respond in writing. When proceeding in matters enumerated under Rule 81, a proper Rule 81 summons must be served. Powell, 644 So.2d at 274. We reiterate this Court’s cautionary note involving the use of a court administrator notice in lieu of a Rule 81 summons:

Rule 81 itself allows a general rule of the court to establish the time and place of hearings, including a rule that authorizes the court clerk to set matters for hearing. M.R.C.P. 81(d)(5). We read that to permit the clerk to set the date and time for hearings without the need for a chancellor’s signature on an order. It is not an authorization for the chancellors of a district to bypass the summons requirement by using court administrator notice, even if there were a local rule adopted providing for that.

Sanghi, 759 So.2d at 1256 (¶ 29).

¶ 12. Though we still hold that such “notices” are improper and do not satisfy the Rule 81 summons requirement, this case turns on Mr. Chasez’s failure to contest the improper service during his appearance before the court. “Complete absence of service of process offends due process and cannot be waived.” Isom, 840 So.2d 107 at (¶ 10). However, the right to contest the court’s jurisdiction based upon a claimed problem with service may be lost after making an appearance in the case if the issues related to jurisdiction are not raised at the first opportunity. Schustz v. Buccaneer, Inc., 850 So.2d 209, 213 (¶ 15) (Miss.Ct.App.2003).

¶ 13. Although Mr. Chasez was pro se during the hearing in question, the chancellor afforded him more than thirty days to obtain counsel before the final contempt hearing. A person electing to represent himself in a civil proceeding is bound by the same rules of practice and procedure as an attorney. Bullard v. Morris, 547 So.2d 789, 790 (Miss.1989). Mr. Chasez, claiming to not have been able to obtain a lawyer, began to defend himself before the court, and even brought his own motion, before ever objecting to the jurisdictional question. We are not required to address issues not objected to at trial and preserved for appeal. Dennis, 824 So.2d at 611 (¶ 18). Because Mr. Chasez failed to raise the issue of improper notice at the show cause hearing, we find that it is waived.

¶ 14. There appears to be a number of relevant documents, such as orders, which were not made a part of the appellate record. The pattern of documents in this case suggests the chancellor held a series of status reviews, or hearings, and at each one set the date, time, place and purpose of the next hearing. If that is what the complete record would show, then it would appear that Mr. Chasez received proper notification despite the inadequate court administrator “notices.” When a matter is not heard on the day set for hearing, it may, by order signed on that day, be continued to a later day for hearing without additional summons. M.R.C.P. 81(d)(5).

¶ 15. Additionally, it appears that this matter was set for a time when Mr. Cha-sez voluntarily submitted himself to the court asking the chancellor to reconsider his refusal to hold in abeyance child support payments. We find that it would be somewhat incongruous to have the chancellor consider that issue without simultaneously considering the extent to which Mr. Chasez had honored his obligation to pay child support.

II. Res Judicata

¶ 16. Mr. Chasez claims that this contempt judgment was in error because the action on which the contempt was based had been previously litigated, and judgment rendered on April 10, 2003. This argument is without merit. On April 10, 2003, Mr. Chasez was held in contempt for failure to pay child support pursuant to the divorce decree, and ordered to be incarcerated. He was allowed to purge himself of this contempt by either paying the entire $17,400 arrearage, or paying $5,000 and agreeing to pay $200 a month towards arrearage, plus the regular monthly child support. On July 22, 2003, Mr. Chasez paid $5,000 and agreed to comply with all previous orders of the court. He was then released from incarceration. Since paying the $5,000, Mr. Chasez has refused to pay regular monthly child support and the agreed payment to cover the arrearage. It is from his refusal to abide by the July 22, 2003 order that Mr. Chasez was found in contempt on February 25, 2004. Since the July 22 agreed order has not been previously litigated, res judicata does not apply here.

III. Attorney’s Fees

¶ 17. Finally, Mr. Chasez claims that the trial judge’s award of attorney’s fees was unreasonable because the amount awarded was for representation over a period of four years. The award of attorney’s fees is largely within the discretion of the trial court. Robertson v. Robertson, 812 So.2d 998, 1005(¶ 22) (Miss.Ct.App.2001). In a civil contempt matter, a chancellor has the ability to make the prevailing party whole and reinforce compliance with judicial orders by awarding attorney’s fees. Hinds County Bd. of Sup’rs v. Common Cause of Mississippi, 551 So.2d 107, 125 (Miss.1989).

¶ 18. Mr. Chasez’s wilful and contumacious conduct was continuing over that four year period. The attorney’s fees that the chancellor ordered Mr. Chasez to pay are those that have accrued due to his continuing refusal to pay child support. Where attorney’s fees arise out of one party’s intentional misconduct causing the opposing party to needlessly expend money and time, it is appropriate to award fees to the wronged party. Mabus v. Mabus, 910 So.2d 486, 489(¶ 8) (Miss.2005), (quoting State v. Blenden, 748 So.2d 77, 87 (¶ 33) (Miss.1999)). Mrs. Chasez’s retention of counsel comes solely from Mr. Cha-sez’s willful and contumacious behavior. Because his was continuing conduct, a limited award of attorney’s fees would not have made Mrs. Chasez whole. The chancellor was not in error for awarding Mrs. Chasez attorney’s fees.

¶ 19. Finding no error in the chancellor’s decision, we affirm.

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

LEE AND MYERS, P.JJ., BRIDGES, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. IRVING, J. DISSENTS WITHOUT WRITTEN OPINION.


author: IRVING, J.,

text:
    Henry J. PETERS, Sr., Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-00236-COA.
    Court of Appeals of Mississippi.
    Jan. 3, 2006.
    Rehearing Denied May 2, 2006.
    Henry J. Peters, Sr., Appellant, pro se.
    Office of the Attorney General by Jane L. Mapp, attorney for appellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   IRVING, J.,

for the Court.

¶ 1. Henry Peters filed a civil complaint against the Commissioner of the Mississippi Department of Corrections, alleging that Peters’s ‘fifteen percent earned time allowance should not be spent on earned release supervision (ERS). The court below dismissed the complaint for failure to state a claim upon which relief may be granted. Aggrieved, Peters appeals and asserts sixteen issues, all of which can be dispensed with by answering the following question: should the fifteen percent earned time reduce Peters’s sentence and allow him to “flat-time” after serving eighty-five percent of his sentence, without ERS?

¶ 2. Finding no grounds for relief, we affirm.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 3. Under Mississippi law, an inmate sentenced after June 30, 1995, is entitled to receive “an earned time allowance of four and one-half (4½) days for each thirty (30) days served” up to fifteen percent “of [the] inmate’s term of sentence” if he has “complied with the good conduct and performance requirements of the earned time allowance program.” Miss.Code Ann. § 47-5-138(5) (Rev.2004). After serving at least eighty-five percent of his sentence in prison, an inmate who is released early “shall be placed under earned-release supervision until the expiration of the term of sentence.” Miss.Code Ann. § 47-5-138(6) (Rev.2004). If the ERS is revoked, “the inmate shall serve the remainder of the sentence and the time the inmate was on earned-release supervision, shall not be applied to and shall not reduce his sentence.” Miss.Code Ann. § 47-5-138(7) (Rev.2004). In other words, the fifteen percent earned time operates to reduce the amount of time that an inmate must spend in prison.

Order of dismissal

¶ 4. Peters argues that his complaint should not have been dismissed, because: “[dismissal is drastic punishment and should not be invoked except where the conduct of the party has been so deliberately careless as to call for drastic action.” Peoples Bank v. D’Lo Royalties, Inc., 206 So.2d 836, 837 (Miss.1968) (citing Williams v. Whitfield, 249 Miss. 634, 643, 163 So.2d 688, (1964)). However, we find that the court below did not err in dismissing Peters’s claim, because Mississippi law clearly provides no relief to Peters. Therefore, the court was correct in finding that Peters had failed to state a claim upon which relief could be granted, and dismissal of his claim was proper.

The fifteen percent earned time allowance and post-release supervision

¶ 5. We find all of Peters’s arguments on this point to be controlled by the Mississippi Code, which clearly states that, after serving at least eighty-five percent of his sentence, an inmate who is released early will be put on ERS. However, to provide clarification, we briefly discuss several of Peters’s specific arguments.

¶ 6. Peters’s primary argument is that the fifteen percent earned time operates to reduce an inmate’s sentence, and ERS is part of a “sentence,” which, therefore, cannot be imposed after a reduction of sentence. MDOC Policy 15-01 appears to be the source of much of Peters’s confusion. The policy states that the definition of “earned time” is “a reduction in sentence.... ” We agree that this language misleads by referring to a “reduction in sentence,” which is not what the fifteen percent earned time allows. However, internal MDOC policy cannot trump Mississippi statutory law, and the controlling statutes are clear: “For any sentence ... an inmate may receive an earned time allowance ... [which] shall not exceed fifteen percent of an inmate’s term of sentence,” and any inmate who is released early “shall be placed under earned-release supervision until the expiration of the term of sentence.” Miss.Code Ann. § 47-5-138(5) (Rev.2004); Miss.Code Ann. § 47-5-138(6) (Rev.2004). We also note that although the initial definition given in the MDOC policy is misleading, the policy goes on to clearly state that earned time can include the “Earned Release Supervision Program.”

¶ 7. Peters also argues that because the same words are used in subsections (1) and (5) of section 47-5-138 of the Mississippi Code of 1972, as annotated and amended, “they both hold the same meaning or definition, i.e. a reduction in sentence. The only difference between the two subsections is the percentage of reduction in sentence allowed and the date they took effect.” However, Peters’s interpretation of the meaning of the two subsections is defeated by the very language of subsection (1), which states that “[t]his subsection does not apply to any sentence imposed after June 30,1995.” Since Peters’s sentence was imposed after June 30, 1995, subsection (1) does not apply to his sentence or the earned time which he may receive. Instead, the meaning of earned time that applies to him is controlled by subsection (5).

¶ 8. Peters contends that subsection (6), which imposes mandatory ERS, does not apply directly to the earned time in subsection (5), and that subsection (6) instead is a “gap fill” procedure. We find this to be a strained interpretation of the statute. Subsection (6) clearly states that any inmate who is released before the termination of his sentence “shall be placed under earned-release supervision until the expiration of the term of sentence.” This subsection is clearly meant to include inmates who are released early under subsection (5) for earned time. In other words, subsection (6) dictates what happens to an inmate who is released early, and subsection (5) makes it clear that inmates are not to be released until they serve at least eighty-five percent of their sentence.

¶ 9. Peters argues that the earned time in subsection (5) must not be governed by subsection (6) because “the fifteen percent earned time allowance is the only earned time program that has been changed to supervised release and not calculated into the sentence to reduce it. Then if this is the case, trusty earned time, meritorious earned time, fifty percent earned time allowance and executive earned time ... are to be converted to parole or E.R.S. as well.” However, each of these sections is clearly not part of the ERS program.

¶ 10. The fifty percent earned time that Peters alludes to is provided for in subsection (1), which applies only to inmates who were sentenced prior to June 30, 1995. Since the ERS was added in 1995, it applies only to new inmates sentenced after June 30, 1995. The section of the code specifying earn time for trusties clearly states that inmates who qualify “may be awarded a trusty time allowance of thirty (30) days’ reduction of sentence. ...” Miss.Code ANN. § 47-5-138.1(1) (Rev.2004) (emphasis added). Therefore, trusty time works to reduce the actual sentence, by virtue of statutory language that is notably absent from the fifteen percent earned time allowed under section 47-5-138(5). The meritorious earned time provision also clearly refers to a “reduction of sentence.” Miss.Code Akn. § 47-5-142(4) (Rev.2004). Executive earned time is a reduction or release granted by the governor under Article 5, Section 124, of the Mississippi Constitution. As such, it is also not subject to the ERS program. Although all of these procedures are ways by which a prisoner may seek to reduce his sentence, only section 147-5-138(5) omits the “reduction of sentence” language that is present in the other remedies. Having found that those sections are distinguished from the fifteen percent earned time, we find no reason why the ERS program should not apply to Peters’s sentence.

¶ 11. Peters also makes several other claims for relief to this court, all predicated on the notion that the ERS program should not apply to him, and that his sentence should instead be reduced by fifteen percent. Finding that the ERS program properly applies to him, we deny all these claims.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY DENYING MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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


text:
    Jacob SULLINGER, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KP-00071-COA.
    Court of Appeals of Mississippi.
    Jan. 10, 2006.
    Rehearing Denied May 2, 2006.

      Jacob Sullinger, Appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, John W. Champion, attorney for appellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   IRVING, J.,

for the Court.

¶ 1. Jacob Sullinger was convicted by a DeSoto County jury of manslaughter, and was sentenced to twenty years in the custody of the Mississippi Department of Corrections. Aggrieved, he appeals pro se and argues that his conviction should be overturned because: (1) the evidence was insufficient to support his conviction; (2) the State failed to investigate fully and preserve exculpatory evidence, thereby denying him his right to a fair trial; (3) the State violated Rule 9.04 by not fully investigating the crime scene; (4) the counsel provided to Sullinger was ineffective, thus depriving him of his right to effective assistance of counsel; (5) Sullinger was denied his Sixth Amendment right to appellate counsel; and (6) cumulative errors rendered Sullinger’s trial unfair, in violation of the Fifth and Fourteenth Amendments to the United States Constitution.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. In April 2002, Sullinger went over to the home of a friend to work on a truck that belonged to Joey Riles. Riles was present at the house, although he was asleep inside when Sullinger first arrived. Sullinger attempted to wake Riles several times so that Riles could provide assistance. When Riles finally came out to help, he and Sullinger argued, and eventually began to fight physically. At some point, Sullinger allegedly injured Riles’s hand, and Riles allegedly threw a pipe at Sullinger. Riles then retreated to the house’s porch, where Sullinger used a pipe to deliver a fatal blow to Riles’s head. After assaulting Riles, Sullinger got in his vehicle and left the house. Expert testimony at trial showed that Riles died as a result of the blow. Additional facts will be related during the discussion of the issues, if necessary.

ANALYSIS AND DISCUSSION OF THE ISSUES

(1) Sufficiency of the Evidence

¶ 4. In his first allegation of error, Sullinger contends that his motion for directed verdict should have been granted because the evidence presented was insufficient to sustain his conviction.

¶ 5. When the sufficiency of the evidence supporting a conviction is challenged, the crucial determination is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Dilworth v. State, 909 So.2d 731, 736(¶ 17) (Miss.2005) (citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). An appellate court should reverse and render if “the facts and inferences, ‘point in favor of the defendant on any element of the offense with sufficient force that reasonable [persons] could not have found beyond a reasonable doubt that the defendant was guilty.’ ” Id. (citing Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 6. We find that the evidence here is sufficient to sustain Sullinger’s conviction. There was testimony that Sullinger and Riles had been arguing, and that the altercation had escalated to physical violence. Before Sullinger hit Riles, a witness testified that Sullinger said, “Do you want me to hit you, huh? Huh? Do you want to see how it feels? Do you want me to hit you?” The same witness observed Sullinger throw a pipe off the porch shortly after the blow. Sullinger also fled the scene of the crime, after stating something to the effect that Riles would “just have a bad headache.” Sullinger’s defense at trial was not that he had not hit Riles, but instead was that he had acted in self-defense when doing so.

¶ 7. Although Sullinger attempts to cast doubt on the credibility of several witnesses during his recitation of the facts, we note that all of these credibility issues were brought to the attention of the jury. “[We] consistently [hold] that decisions as to the weight and credibility of a witness’s statement are the proper province of the jury-” Doe v. Stegall, 757 So.2d 201, 205(¶ 12) (Miss.2000). Since the jury had all the information that implicated the credibility of various witnesses, we decline to substitute our judgment for that of the jury.

¶ 8. In order to find Sullinger guilty of manslaughter, the jury had to find that (1) he killed a human being, (2) without malice, (3) in the heat of passion, (4) by the use of a deadly weapon, (5) without authority of law, and (6) not in necessary self-defense. After a careful review of the record, we find that a reasonable jury could have found that all of these elements were proved. The judge did not err in denying Sullinger’s motion for a directed verdict.

(2) Failure to Investigate and Preserve Exculpato'i’y Evidence

¶ 9. In his second allegation of error, Sullinger asserts that he was denied his right to a fair trial because the State failed to fully investigate or preserve exculpatory evidence.

¶ 10. When reviewing claims that the State in a case failed to preserve evidence, a three-part test has developed in Mississippi: “(1) the evidence in question must possess an exculpatory value that was apparent before the evidence was destroyed, (2) the evidence must be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means, and (3) the prosecution’s destruction of the evidence must have been in bad faith.” Murray v. State, 849 So.2d 1281, 1286(¶ 16) (Miss.2003) (quoting State v. McGrone, 798 So.2d 519, 523(¶ 11) (Miss.2001)).

¶ 11. Although Sullinger cites case law dealing with the destruction of evidence, he then argues that “the jury, in its conviction, relied upon an incomplete investigation of the facts....” We note that this is not an argument about destruction of evidence, since Sullinger does not allege that any evidence was actually destroyed, accidentally or otherwise. Sullinger claims that the failure of the State to interview witnesses denied him his right to a fair trial by causing surprise to him, because there were individuals present at the scene of the crime who were not interviewed by the State before trial, and whom the defense learned about only during cross-examination.

¶ 12. The State urges, and we agree, that there was adequate investigation by law enforcement in this case. Furthermore, we note that Sullinger provides little citation to either the record or case law when making these assertions. The only case law cited refers to destruction of evidence, which was not an issue in this case. All of the witnesses that Sullinger refers to could have easily been identified with minor effort on the part of Sullinger’s attorney by interviewing the known witnesses who were on the scene. Further, the record indicates that the potential witnesses that Sullinger refers to were not present at the time of the incident; they arrived on the scene later. Thus, it is difficult to understand how these witnesses would have aided in Sullinger’s defense, and he provides very little to this Court in the way of specific allegations as to how these alleged witnesses would have aided his defense.

¶ 13. From the record before us, we find that the State did not fail to preserve evidence in this case. Further, there was no unfair surprise to Sullinger resulting from the cross-examination of various witnesses. Additionally, we note that Sul-linger himself acknowledges that these witnesses were not objected to at trial, stating: “although defense counsel did not raise proper objection, the same represents plain error and should be considered in reversal of the verdict....” We are unable to find that the State’s actions in this case rose to the level of plain error. Therefore, we reject Sullinger’s second argument.

(S) Production of Discovery Pursuant to Rule 9.0k

¶ 14. In his third allegation of error, Sullinger alleges that the State violated Rule 9.04 of Uniform Rules of Circuit and County Court by “intentionally and deliberately” failing to inform Sullinger that the victim’s body had been moved, that the alleged knife had been moved, and by failing to adequately investigate the scene of the crime.”

¶ 15. We are unable to find that any of the State’s actions prejudiced Sullinger’s ability to prepare his defense. The repositioning of the victim’s body, by individuals who were not associated with the State, had no impact whatsoever on Sullinger’s case. Furthermore, Sullinger does not allege any actual prejudicial impact. The knife at issue was not “moved” instead, it was brought to the attention of law enforcement well after the investigation of the scene had been completed. Sullinger’s further assertion that “the police had not actually retrieved the knife until after the initial investigation and canvassing of the scene had long been over, [and] Sul-linger could have presented this at the trial in order to create a reasonable doubt to the jury” borders on the disingenuous. All the officers who were called to testify steadfastly maintained that they did not find the knife during their investigation at the scene, because the knife was not on the scene at the time. Photographs taken at the time of the incident corroborated this testimony. More importantly, Sullinger did present this evidence to the jury: law enforcement witnesses were questioned extensively during cross-examination about whether they had found a knife during their investigation, and why they had only retrieved the disputed knife after that investigation. In short, this evidence was presented to the jury to consider in returning its verdict.

¶ 16. Sullinger cites Little v. State, 736 So.2d 486, 489 (Miss.Ct.App.1999) as support. That case does not help Sullinger because Little deals with the State’s withholding of known exculpatory evidence, a fact which does not exist in the current case. In the present case, even Sullinger does not assert that the State withheld exculpatory evidence.

¶ 17. Rule 9.04 of the Uniform Rules of Circuit and County Court, governing discovery, dictates what evidence the State must disclose during discovery. As already discussed above, we find that the State did not withhold any evidence from Sullinger. Therefore, Rule 9.04 provides no ground for any possible error.

(U) Ineffective Assistance of Counsel

¶ 18. In his fourth allegation of error, Sullinger claims that he was denied his constitutional right to effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-pronged test set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Mississippi Supreme Court in Stringer v. State, 454 So.2d 468, 476 (Miss.1984). According to that test, a defendant must show (1) that his attorney’s performance was defective, and (2) that that deficiency prejudiced his right to a fair trial. Id. at 477. When determining whether there was error, we look at the totality of the circumstances surrounding an attorney’s performance. Hiter v. State, 660 So.2d 961, 965 (Miss.1995). One asserting ineffective assistance of counsel has a significant hurdle to overcome before prevailing and the “analysis begins with the strong but rebuttable presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Appellate review of counsel’s performance is ‘highly deferential.’ ” Id. (citations omitted).

(a) Failure to Present Evidence

¶ 19. Sullinger alleges that his counsel was ineffective for failing to present evidence that the knife and victim’s body had been moved. He also finds fault with his counsel’s failure to present evidence of the police failure to conduct an adequate search of the crime scene. However, as already discussed, this evidence was presented to the jury by Sullinger’s counsel. Testimony at trial clearly indicated that the victim’s body had been moved and that any knife which may have been at the crime scene was not found until later. During his cross-examination, Sullinger’s counsel strongly questioned law enforcement as to how thorough their search and investigation of the scene was. Sullinger’s argument does not overcome the presumption that his counsel’s performance was competent.

(b) Character Witnesses

¶ 20. We note that decisions of trial strategy, such as whether to call a certain witness, “cannot give rise to an ineffective assistance of counsel claim.” Anderson v. State, 904 So.2d 973, 980(¶ 27) (Miss.2004) (quoting Carr v. State, 873 So.2d 991, 1003(¶ 27) (Miss.2004)). In Nichols v. State, 868 So.2d 355, 362(¶ 27) (Miss.Ct.App.2003), we stated that a defendant was not entitled to relief for counsel’s failure to call character witnesses where the defendant did not “demonstrate that character witnesses would have assisted his case at trial.” Likewise, in the current case, Sullinger has failed utterly to demonstrate that these witnesses would have changed the outcome in his case. He has presented no evidence, or even argument, indicating how this failure to call character witnesses prejudiced his defense. Therefore, even if we were to find that Sullinger’s counsel was defective in this regard, Sullinger still could not prevail, because we are unable to find that Sullinger has demonstrated any prejudice that arose from this alleged deficiency.

(c) Failure to Investigate the Scene

¶ 21. Sullinger next alleges that his counsel was ineffective for failing to investigate the crime scene before trial and for failing to make a motion to allow the jury to view the crime scene. We find that this argument fails to satisfy the two-pronged test required by Strickland. First, we note that Sullinger has failed to demonstrate how the jury’s view of the crime scene would have added something to his defense. In the absence of any suggestion in this regard, we strongly suspect that counsels’ decision, not to ask that the jury be allowed to view the scene, fell within the ambit of reasonable trial strategy, and is therefore not sufficient to support a claim of ineffective assistance. We also note that the questions raised by counsel at trial, and the evidence referenced during argument, indicate that Sul-linger’s counsel was familiar with the crime scene, either through independent investigation or review of the extensive photographs taken by law enforcement. After reviewing the available photos, we find that the decision to not ask for the jury to be brought to the crime scene was reasonable. The photographs of the crime scene were extensive, and clearly showed the state of the scene at the time of the incident. Sullinger has failed to prove that his counsel was deficient in this regard, or that any prejudice resulted to him.

(d) Failure of Counsel to Use Tape

¶ 22. Next, Sullinger contends that his counsel was ineffective for failing to “introduce the tape which [Sullinger] presented to counsel before trial, demonstrating that the victim’s family had planned to present perjured and false evidence.... ” The State argues that there is no error on this point because “any use of that tape was clearly part of [counsels’] trial strategy.” We agree, and additionally note that this alleged tape was not made a part of the record and is not available for our review on appeal. Without further information on what this tape would have shown, and how its non-production prejudiced Sullinger’s defense, we find that Sul-linger has not met the Strickland test.

(e) Failure to Introduce Evidence about the Victim

¶ 23. Sullinger argues that his counsel were ineffective for failing “to introduce the record of the victim showing that the victim was an alcoholic and prone for [sic] violence.... ” We find that this decision falls squarely within the ambit of trial strategy. Additionally, it was brought out through trial testimony that the victim, as well as other key State witnesses, were alcoholics or near-alcoholics. The decision of trial counsel to not discuss any violent incidents of the victim may very well have been predicated upon the fact that any violent propensities of Sullinger could then be brought out by the State. In short, this was a trial strategy decision, and Sullinger has failed to show that his counsel was deficient in this regard, or that his defense was prejudiced.

(f) Failure to Present Evidence about Victim’s Intoxication

¶ 24. Finally, Sullinger argues that his counsel was ineffective for failing “to present the viable defense that the victim voluntarily intoxicated himself to the point that he was unable to control his actions.... ” Sullinger basically appears to argue that his counsel should have presented more evidence regarding Sullinger’s self-defense claim. Our review of the record indicates that evidence as to the victim’s intoxicated or hung-over state was presented, and that evidence regarding any alleged knife and threatening actions by the victim was produced. It is unclear to us from Sullinger’ argument what more he would have had his counsel do in this regard. Therefore, we find that Sullinger has proved neither that his counsel was deficient, nor that he was prejudiced by any deficiency.

¶ 25. As a result, we find that the aid given by Sullinger’s trial counsel was effective and presents no basis for reversal on appeal. Sullinger’s fourth allegation of error is rejected.

(5) Appeal Counsel

¶ 26. In his fifth allegation of error, Sullinger alleges that he is entitled to relief because he “was denied his Sixth Amendment right to counsel when [the] trial court dismissed Appellant’s attorney and failed to appoint new counsel....” He argues that he never made an official waiver of appellate counsel on the record. The State argues that Sullinger is not entitled to relief on this point because he was appointed appeal counsel. The record reflects that the court below appointed Sul-linger appeal counsel, whom he later fired. The record also reflects that Sullinger filed a motion asking that the brief filed by the terminated appellate counsel be stricken. That motion was granted by this Court.

¶ 27. We agree with the State that Sul-linger is not entitled to any relief. Regardless of whether Sullinger made an official waiver of appellate counsel on the record, he clearly asked that his appellate counsel be withdrawn, knowing that the result of that decision was that he would have to hire counsel himself or proceed pro se. Quite simply, Sullinger cannot request, on the one hand, that his appointed appellate counsel be terminated and claim, on the other hand, that he was denied his Sixth Amendment right to counsel. We find no error on this point.

(6) Cumulative Error

¶28. In his final allegation of error, Sullinger contends that the cumulative errors in his trial resulted in a denial of his constitutional right to a fair trial. The Mississippi Supreme Court has clarified appellate review of cumulative error to specify that errors, which are not reversible in and of themselves, may still require reversal under cumulative error “because of the resulting cumulative prejudicial effect.” Byrom v. State, 863 So.2d 836, 847(¶ 13) (Miss.2003).

¶ 29. Since we have found no error in any of Sullinger’s other assertions, there can be no cumulative error or cumulative prejudicial effect. Further, “[a]s there was no reversible error in any part, so there is no reversible error to the whole.” McFee v. State, 511 So.2d 130, 136 (Miss.1987). Therefore, Sullinger’s final allegation of error is rejected.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THIS SENTENCE RUNNING CONCURRENTLY WITH THE SENTENCE BEING SERVED IN CAUSE NO. CR 2000-59-R(D), IS AFFIRMED. ALL COSTS OF-THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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

      . The State urges us to find that we do not even need to determine whether the evidence was sufficient, because "the argument as presented in [Sullinger's] brief, does not even raise some a[sic] claim as to what facts were deficient.” Although we recognize that Sul-linger’s brief certainly could have contained a more substantial argument, we address the sufficiency of the evidence in his case out of an abundance of caution. Sullinger did correctly cite relevant Mississippi case law, even if his brief lacked more information. In short, there is enough information to allow us to rule on this issue.

      . The officers who testified maintained that there was no knife present at the scene when they investigated. Instead, the knife was found in plain view on the porch about a week later, after Sullinger’s girlfriend called police to tell them the knife was there.


author: CHANDLER, J„

text:
    Malcolm Gerald GLENN, Administrator of the Estate of Brittany Glenn, Deceased, and Malcolm Gerald Glenn, Appellant v. OVERHEAD DOOR CORPORATION and Peter J. Maloney, Inc., Appellees.
    No. 2004-CA-01248-COA.
    Court of Appeals of Mississippi.
    Jan. 17, 2006.
    Rehearing Denied May 23, 2006.

      John David Weddle, Tupelo, J. Mark Shelton, attorneys for appellant.
    William C. Murphree, Tupelo, attorney for appellees.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   CHANDLER, J„

for the Court.

¶ 1. Jolie Glenn placed her three-year-old daughter, Brittany, in a car with the engine running while it was parked in her garage with the garage door closed. Brittany died of carbon monoxide poisoning. Malcolm Glenn, Brittany’s father and Jo-lie’s ex-husband, sued Overhead Door, the manufacturer of an electronic garage door opener, and Peter Maloney, the seller and installer of the garage door opener. The Lee County Circuit Court granted summary judgment in favor of Overhead Door and Maloney. Malcolm appeals, raising the following issues:

I. WHETHER A FACTUAL ISSUE EXISTS REGARDING THE MOTHER’S ABILITY TO AVOID DANGER
II. WHETHER THE AFFIDAVIT FROM DR. BADEN CREATES A GENUINE ISSUE OF MATERIAL FACT
III. WHETHER OVERHEAD
DOOR’S FAILURE TO WARN OF CARBON MONOXIDE POISONING CREATES A QUESTION OF MATERIAL FACT
IV. WHETHER A CONSUMER EXPECTATIONS TEST OR RISK-UTILITY TEST APPLIES
V. WHETHER THE TESTIMONY OF DR. RICHARD FORBES CREATES A QUESTION OF MATERIAL FACT

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Overhead Door Corporation designs and manufactures electronic garage door openers. Their garage door opener was installed in the residence of Jolie Glenn, a resident of Tupelo, Mississippi. On September 22, 1998, Jolie Glenn entertained guests in that home. After her guests had departed, Jerry Montgomery, one of the guests, returned and said that he had left his cell phone at Jolie’s house. Jolie testified that she felt uncomfortable with Montgomery’s presence. In an effort to get Montgomery to leave without creating a confrontation, Jolie said that she had to leave. Jolie took her three-year-old daughter, Brittany, and went to the garage, where she had parked her car. Jolie placed Brittany in the child’s car seat and started the car. Montgomery told Jolie that he would leave, told her to go back into the house, and told her that he would get Brittany from the car and bring her into the house.

¶ 4. Jolie went back into the house, sat down, and fell asleep. When she awoke, she realized that Brittany was not with her. Jolie went into the garage and saw that the car had stopped running and that the garage door was closed. Brittany was in the car and died as a result of carbon monoxide poisoning.

¶ 5. Malcolm Glenn, Jolie’s ex-husband and Brittany’s father, sued Overhead Door and Peter Maloney, the seller and installer of the garage door opener, under theories of strict liability and negligence alleging design defect and failure to warn. Malcolm asserted that Overhead Door was negligent in not designing a door opener that would cause the door’s motor to engage and the door to rise if the level of carbon monoxide reached a potentially dangerous level. Malcom claims that garage door opener technology exists that would enable Overhead Door to incorporate a sensor into the motor of the product. Malcolm asserted that such a sensor would have detected a dangerous level of carbon monoxide and would have activated the motor to raise the door.

¶ 6. Overhead Door moved for summary judgment, arguing that Malcolm could not meet his burden of production on the issues of causation in fact, defective design, and failure to warn. The circuit court entered summary judgment in favor of Overhead Door and Maloney.

ANALYSIS

¶ 7. The trial court may grant summary judgment only if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). The movant and non-movant maintain the burdens of production paralleling the burdens of proof they would bear at trial. Collier v. Trustmark Nat’l Bank, 678 So.2d 693, 696 (Miss.1996). The party seeking summary judgment has the burden of persuading the trial judge that there are no genuine issues of material fact, and that based upon the facts, he or she is entitled to summary judgment. Id. Malcolm contends that there are genuine issues of fact as to whether Brittany would have died of carbon monoxide poisoning if the garage door had been raised; whether Overhead Door and Maloney breached a duty to warn of carbon monoxide poisoning; and whether the garage door was designed in a way as to render the door unreasonably dangerous.

I. WHETHER A FACTUAL ISSUE EXISTS REGARDING THE MOTHER’S ABILITY TO AVOID DANGER

¶ 8. Malcolm concedes that a manufacturer does not have a duty to create a childproof garage door. However, a manufacturer does have a duty to provide a product that is reasonably safe without defeating its utility. Sperry-New Holland, a Div. of Sperry Corp. v. Prestage, 617 So.2d 248, 256 (Miss.1993). In balancing the utility of the product against the risk it creates, an ordinary person’s ability to avoid the danger by exercising care is also weighed. Id.

¶ 9. In Williams v. Briggs Co., 62 F.3d 703, 707 (5th Cir.1995), an eleven-month-old child died as a result of the burns she sustained when her mother left her unattended in a bath tub with extremely hot water. The Fifth Circuit applied a risk-utility analysis and noted: “Obviously, Williams’ 11-month [old] daughter was incapable of exercising care for her own safety. But, it goes without saying that manufacturers cannot make an absolutely safe product, especially for 11-month old children.” Id. The Fifth Circuit affirmed the district court’s entry for judgment as a matter of law in favor of the defendant, because the mother could have avoided placing her child in extremely hot water. Id. Similarly, Jolie could have easily avoided exposing Brittany to dangerous levels of carbon monoxide by not leaving her in a car unattended for an extended period of time with the engine running and the garage door down. We find this assignment of error to be without merit.

II. WHETHER THE AFFIDAVIT FROM DR. BADEN CREATES A GENUINE ISSUE OF MATERIAL FACT

¶ 10. Overhead Door and Maloney attached to their motion for summary judgment a report that Dr. Steven Hayne, a forensic pathologist, prepared. Overhead Door and Maloney designated Dr. Hayne as an expert witness. In preparation for this report, Dr. Hayne took a model vehicle and conducted testing. He concluded that Brittany would have died of carbon monoxide poisoning even if the garage door had been opened. Stated differently, Dr. Hayne concluded that the absence of a carbon monoxide sensor neither caused nor contributed to Brittany’s death.

¶ 11. To rebut Dr. Hayne’s testimony, Malcolm submitted a report from Dr. Michael Baden, a forensic pathologist. Dr. Baden’s affidavit stated (1) that Dr. Hayne’s measurements are not conclusive, (2) that Dr. Hayne’s report does not establish to a reasonable degree of medical certainty that Brittany would not have survived and (3):

That to a reasonable degree of medical certainty, Brittany Glenn’s death could have been avoided had the garage door been in the open position, assuming the vehicle exhaust was facing the door and assuming the wind direction was not blowing directly into the garage opening, assumptions which I understand to be factually accurate.

The circuit court held that Dr. Baden’s affidavit was inadmissible because he did not explain what scientific methodology he used to form his opinions.

¶ 12. In considering a summary judgment motion opposed by expert testimony, the trial court has broad discretion to rule on the admissibility of the expert’s evidence and its ruling must be sustained unless manifestly erroneous. Washington v. Armstrong World Industries, Inc., 839 F.2d 1121, 1123 (5th Cir.1988). When faced with a proffer of scientific expert testimony, the trial judge must determine at the outset whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). “This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Id. at 592-93, 113 S.Ct. 2786.

¶ 13. An expert’s opinion is admissible only if it is founded on data. “Talking ‘off the cuff — deploying neither data nor analysis — is not an acceptable methodology.” Lang v. Kohl’s Food Stores, Inc., 217 F.3d 919, 924 (7th Cir.2000). Dr. Baden merely offered an opinion, with no explanation of any methodology he employed in arriving at that opinion. He did not form his opinion based on his own testing or on statistical data gathered by others. “An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process.” Mid-State Fertilizer Co. v. Exchange Nat. Bank of Chicago, 877 F.2d 1333, 1339 (7th Cir. 1989). The circuit court was within its discretion in refusing to consider Dr. Baden’s testimony. We find this assignment of error is without merit.

III. WHETHER OVERHEAD DOOR’S FAILURE TO WARN OF CARBON MONOXIDE POISONING CREATES A QUESTION OF MATERIAL FACT

¶ 14. Proving that a manufacturer did not warn of some potential danger does not, by itself, create an issue of fact. In order to create a triable issue regarding failure to warn, the plaintiff must show that the user was ignorant of the danger warned against. Hagan v. EZ Mfg. Co., 674 F.2d 1047, 1052 (5th Cir.1982). Manufacturers and distributors have no duty to warn of dangers that are open and obvious or if the hazard associated with the product is common knowledge to the ordinary observer or consumer. See, e.g., Harrist v. Spencer-Harris Tool Co., 244 Miss. 84, 95, 140 So.2d 558, 562 (1962).

¶ 15. The Mississippi Supreme Court has stated that knowledge of an open and obvious danger is not a complete bar to recovery. Tharp v. Bunge Corp., 641 So.2d 20, 24 (Miss.1994). The open and obvious defense is now a comparative negligence defense used to compare the negligence of the plaintiff to the negligence of the defendant. Id. at 25. In Vaughn v. Ambrosino, 883 So.2d 1167 (Miss.2004), the supreme court reaffirmed the principle that the open and obvious defense is a comparative negligence defense. However, the court also noted: “[I]t would be strange logic that found it reasonable to allow a plaintiff to pursue a claim against a defendant for failure to warn of an open and obvious danger. One would struggle, indeed, to justify the need to warn a plaintiff of that which was open and obvious .... [A] thing warned of is either already known to the plaintiff, or it’s not. If it’s already known to the plaintiff, then the warning serves no purpose.” Id. at 1170-71 (¶ 12).

¶ 16. Malcolm argues that there is a genuine issue as to whether Overhead Door and Maloney should have warned of the dangers of carbon monoxide poisoning because Jolie Glenn testified that it never crossed her mind that her daughter could die from carbon monoxide poisoning. However, she did testify that she knew a person should never leave a child unattended in a car with the engine running. She also testified that she knew and appreciated the danger of carbon monoxide poisoning and that she knew the garage door would not open automatically. She needed no other warning. This assignment of error is without merit.

IV. WHETHER A CONSUMER EXPECTATIONS TEST OR RISK-UTILITY TEST APPLIES

¶ 17. To determine whether a product has a defect that makes it unreasonably dangerous, courts employ either a consumer expectations analysis or a risk-utility analysis. Sperry-New Holland, 617 So.2d at 252. Under a consumer expectations analysis, a product with a defect which causes an injury to the plaintiff is unreasonably dangerous if an ordinary consumer fails to appreciate the danger. “In other words, if the plaintiff, applying the knowledge of an ordinary consumer, sees a danger and can appreciate that danger, then he cannot recover for any injury resulting from that appreciated danger.” Id. at 254.

¶ 18. In a risk-utility analysis, a product is unreasonably dangerous if a reasonable person would conclude that the danger of the product outweighs its utility. “Thus, even if a plaintiff appreciates the danger of a product he can still recover for any injury resulting from that danger provided that the utility of the product is outweighed by the danger that the product creates.” Id.

¶ 19. In Sperry-New Holland, the Mississippi Supreme Court held that Mississippi has moved away from the consumer expectations test and has moved towards the risk-utility test. Id. at 256. In 1993, the Mississippi legislature enacted the Mississippi Products Liability Act. Miss. Code Ann. § 11-1-63-65 (Supp.2005). Mississippi Code Annotated Section 11 — 1— 63(f) (Supp.2005) provides:

In any action alleging that a product is defective because of its design pursuant to paragraph (a)(i)3 of this section, the manufacturer or product seller shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller, (ii) The product failed to function as expected and there existed a feasible design alternative that would have to a reasonable probability prevented the harm. A feasible design alternative is a design that would have to a reasonable probability prevented the harm without impairing the utility, usefulness, practicality or desirability of the product to users or consumers.

¶ 20. In Wolf v. Stanley Works, 757 So.2d 316, 321(¶ 19) (Miss.Ct.App.2000), this Court stated:

Before passage of [the Mississippi Products Liability Act], the supreme court adopted the risk-utility test for determining whether a product contains a design defect. Sperry-New Holland v. Prestage, 617 So.2d 248, 256 (Miss.1993). This test requires balancing the utility of the product against the risk it creates. That test has probably been replaced by the statutory command that there is no liability unless the product “failed to perform as expected.” Miss.Code Ann. § 11 — 1—63 (f) (ii). Whose expectations are relevant is problematic under this standard.

The Mississippi Supreme Court later concluded that the Products Liability Act requires the manufacturer’s product to pass both the risk-utility and the consumer expectations tests. Smith v. Mack Trucks, Inc., 819 So.2d 1258, 1266(¶25) (Miss. 2002).

¶ 21. In support of their motion for summary judgment, Overhead Door and Maloney attached an affidavit of Louis Gil-lombardo, manager of technical field services of GMI Holdings, a subsidiary of Overhead Door. Gillombardo stated that Overhead Door never marketed the garage door opener as a safety device to alert a user to the danger of carbon monoxide poisoning, and never intimated that the door would open automatically if carbon monoxide emissions reached a certain level. Furthermore, he stated that no manufacturer of a garage door opener incorporates a carbon monoxide detector that would automatically cause the garage door to raise when carbon monoxide reaches a certain level.

¶ 22. Jolie makes it clear in her deposition that she knew the danger of carbon monoxide poisoning from an automobile’s engine. Likewise, she stated that she knew that the garage door would not open until someone activated the device. Thus, Malcolm failed to show that the device failed to function as expected under the expectations of the consumer.

¶ 23. Under a risk-utility analysis, Malcolm has failed to show a cause of action. The Sperry court held that a consumer has responsibility for his own actions. It stated, “In balancing the utility of the. product against the risk it creates, an ordinary person’s ability to avoid the danger by exercising reasonable care is also weighed.” Sperry-New Holland, 617 So.2d at 256. Jolie could have easily prevented Brittany’s death by removing her from a running vehicle.

¶ 24. In Cooper v. General Motors Corp., 702 So.2d 428 (Miss.1997), the plaintiff sued General Motors because it failed to install airbags in the vehicle in which the decedent rode. The Cooper court stated that Prestage does not reject the consumer expectations test where no consumer could expect to be protected by an additional safety device that he obviously knew was not there. Id. at 443(¶ 46). The court pointed out that when the Coopers bought their vehicle, they knew that it had no airbags. “Certainly, they cannot expect an airbag to pop out knowing it did not exist.” Id. at 443(¶ 45). Similarly, no reasonable person could expect that a garage door opener with no carbon monoxide detector would raise the door when the carbon monoxide reached a toxic level.

¶ 25. Under a consumer expectations analysis, Malcolm cannot prevail because Jolie appreciated the danger at hand. Under a risk-utility analysis, Malcolm cannot prevail because Brittany’s death could have been avoided by a simple exercise of reasonable care. Therefore, this assignment of error is without merit. Therefore, this assignment of error is without merit.

V. WHETHER THE TESTIMONY OF DR. RICHARD FORBES CREATES A QUESTION OF MATERIAL FACT

¶ 26. Dr. Richard Forbes, a retired mechanical engineering professor, testified that it was feasible for Overhead Door to incorporate a carbon monoxide sensor into a garage door opener. Dr. Forbes further testified that Overhead Door could, therefore, produce a device that would automatically open the garage door when the carbon monoxide level reached a dangerous level.

1Í27. In the late 1970s, Dr. Forbes worked on a project at Mississippi State University. He designed a system that first detected levels of carbon monoxide in the garage and then sent an electric signal to the garage door that would trigger the doors to open and at the same time activate fans. Dr. Forbes offered the above described system as an alternative design and demonstrated the actual mechanism during his deposition. He did admit, however, that the device was a prototype.

¶ 28. In an action alleging that a product is defective because of a design defect, the claimant must show that the product failed to function as expected, and that the alternative design would not impair the utility, usefulness, practicality, or desirability of the product to users or consumers. Miss.Code Ann. § 11 — 1—63(f)(ii) (Supp.2005). Dr. Forbes does not give an opinion as to whether his alternative design would impair the utility, usefulness, practicality, or desirability of the garage door opener. In addition, the evidence showed that Jolie’s garage door opener functioned exactly as it was supposed to function — it would raise and lower the garage door only when someone activated the device.

¶ 29. A product’s design is not defective simply because the manufacturer could have made it safer. Cooper, 702 So.2d at 443(¶ 45). “Our law demands that products be reasonably fit, not perfectly so.” Hall v. Mississippi Chemical Express, Inc., 528 So.2d 796, 800 (Miss.1988). When considering technology and alternative designs, the focus is on the present design. “It is one thing to show that the defendant might have designed a safer product; quite another to show that the product he did design was unreasonably dangerous.” Weakley v. Fischbach & Moore, Inc., 515 F.2d 1260, 1267 (5th Cir.1975).

¶ 30. Overhead Door designed its garage door opener to raise and lower the door when someone physically activated the device. Overhead Door did not design its garage door openers to detect levels of carbon monoxide, and it did not design the garage door opener to open unless someone manually operated it. Thus, we find no merit to this assignment of error.

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

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


author: CHANDLER, J.,

text:
    Robert H. JORDAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-CP-02332-COA.
    Court of Appeals of Mississippi.
    March 14, 2006.
    Rehearing Denied Aug. 8, 2006.
    Robert H. Jordan, Appellant, pro se.
    Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Robert H. Jordan pled guilty to capital murder and filed two motions for post-conviction relief. Both of the motions were denied. Jordan filed his third petition for post-conviction relief alleging that the indictment was flawed. Jordan claims that the omission of the word “did” from the indictment was against statutory requirements and, therefore, made the indictment void. The circuit court judge denied Jordan’s motion for post-conviction relief. Jordan appeals, raising the following issue:

WHETHER THE CIRCUIT COURT WAS CORRECT IN DENYING POST-CONVICTION RELIEF

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On August 3, 1984, Robert Jordan was indicted on the charge of capital murder. Subsequently, Jordan pled guilty to the crimes of murder and arson. On November 5, 1984, Jordan was sentenced to life imprisonment plus six years. Following Jordan’s conviction and sentencing, he filed a motion for post-conviction relief. This motion was denied, appealed and affirmed by the Supreme Court of Mississippi in Jordan v. State, 576 So.2d 145 (Miss.1991). Following the denial of Jordan’s motion for post-conviction relief, Jordan filed a second motion for post-conviction relief. The second motion was denied because the motion was procedurally barred.

¶ 4. On September 28, 2004, Jordan filed a third motion for post-conviction relief. Jordan alleges that the indictment, to which he pled guilty twenty-one years ago, was void because it did not contain the word “did.” Therefore, Jordan argues, that the indictment failed to charge a criminal offense and his indictment should be vacated. The circuit court denied Jordan’s third motion for post-conviction relief as a successive writ.

ANALYSIS

WHETHER THE CIRCUIT COURT WAS CORRECT IN DENYING POST-CONVICTION RELIEF

¶ 5. A court’s order denying post-conviction relief is “a bar to a second or successive motion” under Mississippi Code Annotated Section 99-39-23(6) (Supp.2005); Necaise v. State, 916 So.2d 553, 556(¶ 7) (Miss.Ct.App.2005). Because Jordan’s previous motions for post-conviction relief have been denied, Jordan’s successive motion for post-conviction relief is barred.

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

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