author: ISHEE, J., for the Court: BARNES, J.,

text:
    Tommy Christopher BYNUM a.k.a. Tommy Bynum a.k.a. Tommy C. Bynum, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-KA-02170-COA.
    Court of Appeals of Mississippi.
    April 19, 2005.
    Rehearing Denied Aug. 23, 2005.

      James A. Williams, Brookhaven, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before BRIDGES, P.J., GRIFFIS, and ISHEE, JJ.
   ISHEE, J., for the Court:

¶ 1. Tommy Bynum and a co-defendant were indicted for robbery. The co-defendant was acquitted. Bynum was convicted by a jury in the Circuit Court of Lauder-dale County. Bynum’s motion for a new trial or judgment notwithstanding the verdict was denied, and Bynum appealed. We find no error and affirm.

STATEMENT OF FACTS

¶ 2. On October 11, 2002, Tommy Bynum and another individual drove to a grocery store parking lot in Meridian. Cindy Giles was in the parking lot walking toward her vehicle. Tommy Bynum approached her and attempted to take her purse. Bynum and Giles struggled, and Bynum pushed Giles to the ground. As Giles fell to the ground her purse strap broke and Bynum ran away with her purse. Giles chased Bynum across the parking lot, shouting as she ran. This commotion alerted two bystanders: Adalberto Medina and Perry Tubby. Medina was working in an adjacent store, and he saw Bynum running with Giles’s purse. Medina saw Bynum get into a car in the parking lot, and Medina wrote down the vehicle’s license number. Meanwhile, Tubby, who saw By-num running with Giles’s purse, recognized that a crime was in progress and shouted at Bynum. Tubby testified that he watched Bynum run from Giles, then get into a vehicle with another man and flee the scene. Tubby followed behind the getaway car in his own vehicle, and collected Giles’s personal items which Bynum had thrown out of the car window. Tubby returned to the crime scene where he gave Giles the personal items he had recovered. He also gave a description of Bynum to the police.

¶ 3. Four days after the robbery, police responded to a call of suspicious activity at a local gas station. The get-away car used in the Giles robbery was at that location. The vehicle was impounded and Giles’s change purse was discovered in the car. The driver was arrested and he implicated a white male in the Giles robbery. Acting on information they developed during their investigation, police conducted a photo line-up for Giles, Medina, and Tubby. Each identified Bynum as the robber, however, none of the witnesses had gotten a good look at the driver of the get-away car.

¶ 4. Bynum was indicted for robbery, and tried as a co-defendant with the vehicle driver. After a jury trial, the driver was acquitted and Bynum was found guilty. Bynum’s motion for a new trial or judgment notwithstanding the verdict was denied, and Bynum perfected this appeal asserting the following: (1) whether the trial court erred in the admission of the in-court identification testimony; (2) whether the trial court erred in the admission of the co-defendant’s out-of-court statement; (3) whether the trial court erred in its instructions to the jury; (4) whether By-num received ineffective assistance of counsel; (5) whether the trial court erred in denying Bynum’s motion for a new trial; and (6) whether Bynum is entitled to a new trial based on cumulative error in the trial court.

ISSUES AND ANALYSIS

I. Whether the trial court erred in the admission of the in-court identification testimony.

¶ 5. Bynum argues that the trial court erred in allowing admission of the in-court identification testimony. Bynum maintains that there is a presumption of impermissible suggestiveness created by the police’s failure to preserve a color photo array which they showed to one of the eyewitnesses. Branch v. Estelle, 631 F.2d 1229, 1234 (5th Cir.1980). Bynum maintains that the in-court identification was unreliable based on the United States Supreme Court’s holding in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

¶ 6. Bynum points to specific testimony which he argues highlights the defects in the identification: the length of time of the robbery encounter was very short; Giles picked out two individuals as her possible assailant from the first photo array; testimony that Giles never mentioned multiple arm tattoos on her assailant despite telling police that he was wearing a shirt with cutoff sleeves; testimony reflects Bynum had multiple tattoos on his arms; testimony that Giles’s estimate of her assailant’s height varied from the time of her attack to the time she identified Bynum; testimony that although Giles subsequently identified Bynum from the second photo array, the second photo array did not contain a photo of the other individual she co-identified from the first photo array; testimony that Tubby only saw the assailant from a distance and for a short period of time; and testimony that Medina was not 100% certain in his identification of Bynum from the photo array.

¶ 7. It is the State’s position that the identifications were reliable and that the trial court’s ruling was appropriate. The State points out that there were three individuals, the victim and two bystanders, who identified Bynum as the assailant. The State maintains that there was an abundance of identification testimony and circumstantial evidence connecting Bynum to the crime. The State argues that the standard of review regarding the admissibility of the identification testimony is clearly erroneous, and that the trial court’s decision was not clearly erroneous. Neil, 409 U.S. at 200, 93 S.Ct. 375.

¶8. The standard of review regarding the admission of identification testimony is as follows: “[u]nless we find that clear error occurred when a trial court allowed identification testimony, we will not reverse.” McDowell v. State, 807 So.2d 413, 419(1112) (Miss.2001). When this Court reviews the trial court’s findings as to a pretrial identification which the defendant seeks to suppress, we must consider “whether or not substantial evidence supports the trial court’s findings that ... the in-court identification testimony was not impermissibly tainted,” and we will reverse those -findings by the trial court “only where there is an absence of substantial credible evidence supporting it.” Cousar v. State, 855 So.2d 993, 999(¶ 17) (Miss.2003).

¶ 9. The United States Supreme Court enumerated the following factors in Neil to be considered within the totality of the circumstances when determining whether an identification complies with due process:

(1) the opportunity of the witness to view the criminal at the time of the crime;
(2) the witnesses] degree of attention;
(3) the accuracy of the witnesses] prior description of the criminal;
(4) the level of certainty demonstrated by the witness at the confrontation; and
(5) the length of time between the crime and the confrontation.

Neil, 409 U.S. at 199-200, 93 S.Ct. 375. We shall discuss in turn each witness’s identification in relation, to the Neil factors.

1. Cindy Giles.

¶ 10. Cindy Giles was the robbery victim. The record reflects that the attack occurred in the afternoon in broad daylight. Giles testified that she was approached by Bynum in the parking lot as she was about to walk between two vehicles. They saw each other face to face. Giles stopped in order to allow Bynum room to walk by. Bynum approached close enough to grab her and her purse and they struggled. Giles testified that she was face to face with Bynum during the attack, and that the attack lasted several seconds. Giles then chased Bynum across the parking lot until he rounded the corner of the building and escaped in a vehicle. Giles testified that she was emotionally upset from the attack, but that she tried very hard to give an accurate description of Bynum to the police when they arrived. Giles described him as a white male, five feet six inches tall, wearing blue jeans and a white shirt. One week after the attack, Giles viewed a photo line-up of possible assailants. She identified two individuals as possibly being her attacker, and stated that Bynum looked the most like the attacker. Bynum’s photo, however, was several years old. Giles said that it looked like his face, but that her attacker’s hair was much longer than the picture indicated. Four days later, Giles viewed a second photo line-up of possible attackers. This photo array contained a more recent photo of Bynum, and Giles positively identified him as the man that attacked her. Giles also made an in-court identification of Bynum as the man who robbed her.

¶ 11. Based on the testimony, it is reasonable to conclude that Giles had ample opportunity to view Bynum as he walked toward her between the vehicles and while he attacked her. She saw him face to face and within arms length during the attack. Although her description of Bynum at the scene was not overly detailed, it was not materially incorrect. Based on an old photograph, Giles identified Bynum within a week of the robbery as the most likely person who attacked her. Four days after that, when shown a recent photograph, Giles positively and unequivocally identified Bynum as her attacker. The second photo array did not contain a picture of the other person Giles chose in the alternative as her assailant because the individuals in that first photo array had short hair. The second photo array only contained photos of persons with long hair per Giles’s description.

2. Adalberto Medina.

¶ 12. Medina was an eyewitness who worked in a store adjacent to the crime scene. Medina testified that he saw a vehicle in the parking lot moving from parking space to parking space. The vehicle eventually backed into a parking space outside Medina’s front store window. Suspicious of this activity, Medina made note of the license number. Ten to fifteen minutes after noticing the vehicle park in front of his store, Medina saw a white man with a purse run in front of his store. The man yelled to the driver, “Let’s go. Let’s go,” and jumped into the car which then drove away. Medina testified that he did not get a very good look at the man. A week later, detectives showed Medina a photo line-up and Medina testified that he was not really sure which photo was the assailant. Medina did, however, identify Bynum as the man he believed he saw running with the purse.

3. Perry Tubby.

¶ 13. Tubby was an eyewitness who saw the attacker fleeing with Giles’s purse. Tubby testified that he was parked across the street from the crime scene. He had just left work for the day and was warming up his vehicle before leaving for home. Tubby testified that as he was waiting, he looked across the street and saw a man running with a purse. Believing a crime was in progress, Tubby stepped up onto the running boards of his vehicle to get a better look. He observed the assailant for several seconds as the attacker ran from Giles, then when the attacker stopped to get into a parked car, Tubby shouted at him. Tubby testified that the attacker then stopped and looked directly at him. Tubby testified that he got a good look at him. Tubby further testified that he saw the robber’s face for an additional ten to fifteen seconds while the attacker was in the get-away car. When the police responded to the scene, Tubby gave a description of the robber which was materially similar to the description which Giles had given. A week later, Tubby identified Bynum as the assailant based on a photo line-up. Tubby testified that he was 100% certain that Bynum was the robber. The record also reflects that Tubby made an in-court identification of Bynum as the man he saw running with Giles’s purse on the date in question.

¶ 14. At the suppression hearing, the trial court determined that the motion to suppress the identification testimony should be denied. The trial court appropriately accepted the testimony supporting the State’s position as true and viewed the evidence in the light most favorable to the prosecution. The trial court found that the cumulative testimony of three eyewitnesses identified Bynum as the person who snatched Giles’s purse, fled to a get-away car, and was seen throwing Giles’s personal items from her purse out of the car window.

¶ 15. This Court’s review of the record reflects that all three witnesses had an opportunity to view the criminal at the time of the crime. Giles and Tubby were focused on the robber and attentive to the events as they transpired. The record also reflects that Giles and Tubby gave a materially equivalent description of the criminal at the time of the attack which was consistent with Bynum’s physical characteristics. Finally, the record reflects that Tubby and Giles identified By-num with certainty within a week and a half of the crime. Giles’s identification was delayed by the initial use of an out-of-date photo of Bynum. Medina’s identification was tentative due to his limited observation, and Medina made that fact clear to the jury. Having applied the testimony to the factors enumerated in Neil, and having considered them within the totality of the circumstances, this Court concludes that there was substantial evidence to support the admissibility of the identification testimony. Bynum’s assertion is without merit.

¶ 16. Bynum additionally argues that the trial court committed reversible error in failing to exclude Detective Ha-vard’s testimony that another police officer felt the witness description fit Bynum. Bridgeforth v. State, 498 So.2d 796, 800 (Miss.1986). Bynum’s reliance on Bridge-forth, however, is not well-placed. There is a distinction to be made within the hearsay analysis between hearsay testimony offered to show information acted on by the police, which is generally admissible, and hearsay testimony that is offered for the truth of the matter asserted, which is generally inadmissible. The Bridgeforth Court excluded the police officer’s testimony as inadmissible hearsay because the prosecution’s case lacked direct evidentia-ry support. Bridgeforth, 498 So.2d at 800. The Court’s rationale was that a conviction not be based solely on what witnesses who were not available for cross-examination had told the police, but rather a conviction should be based on direct evidence. Id.

¶ 17. In this case, Bynum’s conviction was based on direct evidence. The victim identified him as the robber. Two eyewitnesses identified him as the man whom they saw running with her purse, and Bynum was seen throwing Giles’s property out of the car window. This direct evidence was sufficient to support a conviction, and we conclude that Bynum was not prejudiced by the admission of Detective Havard’s testimony.

II. Whether the trial court erred in the admission of the co-defendant’s out-of-court statement.

¶ 18. The Confrontation Clause of the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI.

¶ 19. Bynum maintains that the trial court committed reversible error by admitting the co-defendant’s statement to the police into evidence. Bynum argues that his rights under the Confrontation Clause were violated because the co-defendant chose not to testify at trial and his statement was presented to the jury without his being subjected to cross-examination. Bynum argues alternatively that the trial court erred in failing to redact any references in the statement which were incriminating to him. Bynum cites Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) and Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998) in support of his position. A thorough review of these eases reveals the following: where a co-defendant’s statement is introduced at a joint trial which powerfully implicates the defendant in a crime, a jury instruction or redactions which naturally suggest the defendant’s name has been removed is not sufficient protection of the defendant’s right to confront his accuser where the co-defendant does not take the stand and subject himself to cross-examination by the defendant. Gray, 523 U.S. at 197, 118 S.Ct. 1151. More significantly, the United States Supreme Court has also held, however, that where the co-defendant’s statements do not facially implicate the defendant in the crime, there is no Bruton error. Richardson v. Marsh, 481 U.S. 200, 208-09,107 S.Ct. 1702, 95 L.Ed.2d 176 (1987).

¶ 20. The following statement was given by the co-defendant to the police and was admitted into evidence; we present it in its entirety so that it may be read in context:

I don’t know the white guy’s name but he asked me to take him to the store. I said yea[h] and took him to the Winn Dixie.... Coming in from the left side of the store, he asked me to park there. He left out of the car one time. He came back to the car and asked me to give him a few minutes and he left again. He stayed gone about ten or fifteen more minutes. I was [lying] back in the car asleep. All of a sudden I heard someone say crank the car up and it was the white guy, so I cranked the car up. He got in the car and we left. There seemed to be a car following us, and he asked me to let him out of the car.... He got out and he ran off and I drove off. I haven’t seen him since.
Q. Have you ever had dealings with this white male before?
A. No[,] I haven’t, just speaking to him.
Q. You did not know his name, is that correct?
A. Right, he had told me his name but I can’t remember it.
Q. If you saw him again, would you know him?
A. Yeah.
Q. I am showing you a photo line-up, do you see the white male you had in the car with you?
A. No.
Q. Are you sure he is not one of the photos you looked at?
A. Positive.
Q. Did you see the white male with a purse or anything of that nature?
A No.
Q. Why was the change purse in your car?
A. Maybe it fell out when he got out of the car.
Q. Where did you pick up the white male?
A. On 5th St. between about 40th and 41st Ave.
Q. Is there anything else concerning this case that you may have forgotten to tell me that you need to tell me know?
A. No.

¶ 21. The full text of the statement clearly reflects that no specific individual was facially implicated by the eo-defen-dant’s statement to the police. The co-defendant’s only reference to another person is to an unnamed “white male.” The Richardson Court explained the rationale for its holding by stressing the critical role confessions play in criminal proceedings. “Confessions ‘are more than merely “desirable”; they are essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.’ ” Richardson, 481 U.S. at 210, 107 S.Ct. 1702 (quoting Moran v. Burbine, 475 U.S. 412, 426, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)). The Richardson Court did not require that all confessions be excluded, only those confessions which are incriminating to the defendant on their face. Furthermore, according to Gray, it is clear that redacting the phrase “white male”, which was not facially incriminating, would have undoubtedly been prejudicial to By-num by implication. Therefore, consistent with the United States Supreme Court’s holdings in Richardson, Bruton and Gray, we conclude that the statement at issue in this appeal does not present a Bruton violation, and we find that Bynum’s argument that his Confrontation Clause rights were violated by the admission of this statement is without merit.

¶ 22. Bynum further argues that this Court should consider his appeal in the light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford, the United States Supreme Court held that “out-of-court statements by witnesses that are testimonial are barred, under the Confrontation Clause, unless witnesses are unavailable and defendants had prior opportunity to cross-examine witnesses, regardless of whether such statements are deemed reliable by [the] court....” Crawford, 124 S.Ct. at 1365-70.

¶ 23. The Crawford decision, however, was decided in March 2004, which was some seven months after Bynum was convicted. The Mississippi Supreme Court has not spoken on the retroactivity of Craiuford, however, their general position on retroactivity is well known. “This Court has followed the United States Supreme Court’s general rule of retroactivity, applying decisions in criminal cases retroactively except in cases ‘where retroactive enforcement would cause serious disruption of the administration of justice and where the prior rule was not infected by a serious absence of fundamental fairness.’ ” Morgan v. State, 703 So.2d 832, 839 (Miss.1997) (quoting Cain v. McKinnon, 552 So.2d 91, 92 n. 1 (Miss.1989)). Based on the benign character of the co-defendant’s statement in this case, and the assuredly disruptive impact that the retroactive application of Craiuford would undoubtedly create in the form of innumerable appeals, we conclude that Crawford should not be applied retroactively in this appeal.

III. Whether the trial court erred in its instructions to the jury.

¶ 24. Bynum argues that the trial court erred in giving Instruction C-9 because the language of that instruction was of a peremptory quality and essentially instructed the jury that Bynum was the robber.

¶ 25. Uniform Rules of Circuit and County Court Practice, Rule 3.07 requires an attorney to state for the record the basis for his specific objection to a requested jury instruction. A party who fails to object contemporaneously to a jury instruction procedurally bars the issue on appeal. Jones v. State, 776 So.2d 643, 653(¶ 35) (Miss.2000).

¶ 26. In this case, the record reflects that not only did Bynum fail to object to Instruction C-9, but when asked by the trial judge if he had an objection, his response was, “No, sir. We don’t have a problem with that.” Accordingly, Bynum waived appellate review by not objecting to the jury instruction at trial, and this Court declines to address this issue upon appeal.

IV. Whether Bynum received ineffective assistance of counsel.

¶ 27. Bynum argues that he is entitled to a new trial due to ineffective assistance of counsel. Bynum cites in his brief a litany of errors committed by his trial counsel: failure to move for suppression of the in-court and out-of-court identifications; failure to move for a severance; failure to insist on redaction of the co-defendant’s out-of-court statement; failure to get a limiting instruction on that statement; failure to obtain a cautionary instruction on accomplice statements; and failure to object to peremptory language in the accomplice instruction.

¶ 28. In order to establish ineffective assistance of counsel, Bynum must demonstrate that his attorney’s performance was deficient and that this deficiency deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Moore v. State, 676 So.2d 244 (Miss.1996). In applying this standard to the facts in the case at bar, we are mindful of the strong presumption that counsel rendered adequate assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

¶ 29. Bynum offers a number of cases in support of his argument in which the Mississippi Supreme Court has determined that the respective defendants were prejudiced by ineffective assistance of counsel, however, Bynum has not demonstrated to this Court how he was prejudiced by his counsel’s alleged errors. The burden is on the defendant to satisfy both elements of the Strickland test and the defendant “must allege ‘with specificity and detail’ that counsel’s performance was deficient and that the deficient performance so prejudiced his defense so as to deprive him of a fair trial.” Moore, 676 So.2d at 246 (quoting Perkins v. State, 487 So.2d 791, 793 (Miss.1986)). Bynum has failed to meet that burden. Bynum has not demonstrated how his counsel’s tactical decisions undermined the proper functioning of the adversarial process. Strickland, 466 U.S. at 686, 104 S.Ct. 2052. “It is the appellant’s duty to provide authority and support for its issue.” Rigby v. State, 826 So.2d 694, 707(¶ 44) (Miss.2002). Bynum’s assertion is without merit.

V. Whether the trial court erred in denying Bynum’s motion for a new trial.

¶ 30. It is Bynum’s position that the evidence was insufficient to support the verdict and that the trial court erred in denying Bynum’s motion for a new trial because the verdict may have been based on bias, prejudice, and improper prejudicial evidence. Bynum recounts essentially the same argument from Issue I above regarding the identification of Bynum as the assailant in support of his argument.

¶ 31. A motion for a new trial challenges the weight of the evidence. Ginn v. State, 860 So.2d 675, 685(¶31) (Miss.2003). The trial court’s denial of a motion for a new trial will only be reversed if the court abused its discretion or the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would be to sanction an unconscionable injustice. Id. at (¶ 31). In determining whether a jury verdict is against the overwhelming weight of the evidence this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the trial court has abused its discretion in failing to grant a new trial. Herring v. State, 691 So.2d 948, 957 (Miss.1997).

¶ 32. The record reflects that three individuals, the victim and two eyewitnesses, testified regarding Bynum’s participation in the robbery. Each witness was subjected to cross-examination by two separate defense counsels. We are reminded that “factual disputes are properly resolved by a jury and do not mandate a new trial.” Ginn, 860 So.2d at 685(¶ 31). Based on the record testimony and accepting as true the evidence which supports the verdict, we are unable to find that the trial court abused its discretion or that the verdict was against the overwhelming weight of the evidence.

VI. Whether Bynum is entitled to a new trial based on cumulative errors in the trial court.

¶ 33. Bynum argues that he did not receive a fair and impartial trial, and that, according to Wilburn v. State, 608 So.2d 702, 705 (Miss.1992), the cumulative errors he asserts justifies a reversal and remand for a new trial. Having found no merit to any of Bynum’s individual assignments of error, we are unable to find that cumulative error requires a reversal.

¶ 34. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT OF CONVICTION OF ROBBERY AND THE SENTENCE OF TWELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, PAYMENT OF A FINE OF $5,000, AND PAYMENT OF RESTITUTION IN THE AMOUNT OF $390 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

BRIDGES, P.J., MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J., LEE, P.J, AND IRVING, J.

BARNES, J.,

Concurring in Part and in Result:

¶ 35. While I in concur in part of the majority’s analysis, I cannot agree with that portion of the majority opinion which declines to apply Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), retroactively. We are bound by the decisions of the United States Supreme Court to apply Crawford in all cases pending on direct review at the time the decision was rendered. Although I find error, under Crawford, in the trial court’s admitting the statement of Bynum’s co-defendant, I conclude the error to be harmless. Accordingly, I concur in the result reached by the majority.

¶ 36. At first blush, the majority’s quotation from Morgan v. State, 703 So.2d 832, 839 (Miss.1997) might appear to reflect that the Court is following the “general rule of retroactivity” pronounced by the United States Supreme Court. A closer reading, however, reveals that the language relied upon by the majority is in fact an exception to the Supreme Court rule. Morgan states:

“As a rule, judicial decisions apply ‘retroactively.’ Indeed, a legal system based on precedent has a built-in presumption of retroactivity.” Solem v. Stumes, 465 U.S. 638, 642, 104 S.Ct. 1338, 1341, 79 L.Ed.2d 579 (1984) (citation omitted). The United States Supreme Court has on several occasions held that new decisions that affect the process of determining guilt or innocence and which could well lead to acquittal should be given retroactive effect. Michigan v. Payne, 412 U.S. 47, 61-62, 93 S.Ct. 1966, 1973-75, 36 L.Ed.2d 736 (1973) (Justice Marshall dissenting) (citing Gideon v. Wainmight, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1972); Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972)). This Court has followed the United States Supreme Court’s general rule of retroactivity, applying decisions in criminal cases retroactively except in cases “where retroactive enforcement would cause serious disruption of the administration of justice and where the prior rule was not infected by a serious absence of fundamental fairness.” Cain v. McKinnon, 552 So.2d 91, 92 n. 1 (Miss.1989) (citations omitted).

Morgan, 703 So.2d at 839 (emphasis added). The two decisions of this Court which have quoted Morgan’s “serious disruption” language, relied upon by the majority, have recognized this to be the state rule of retroactivity. In Graves v. State, 761 So.2d 950 (Miss.Ct.App.2000), the Court stated:

The general rule is that decisions of the Mississippi Supreme Court are presumed to have retroactive effect. Morgan v. State, 703 So.2d 832, 839 (Miss.1997). Only where “retroactive enforcement would cause serious disruption of the administration of justice and where the prior rule was not infected by a serious absence of fundamental fairness” will decisions of our supreme court not be retroactively applied. Id.

Graves, 761 So.2d at 954(¶ 8) (emphasis added); see also Richbourg v. State, 744 So.2d 352, 355(¶ 6) (Miss.Ct.App.1999) (same).

¶ 37. While the federal rule of retroac-tivity was once similar to our state rule, the federal rule has been revised by the United States Supreme Court:

In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) ... [the Supreme Court] developed a doctrine under which we could deny retroactive effect to a newly announced rule of criminal law. Under Linkletter, a decision to confine a new rule to prospective application rested on the purpose of the new rule, the reliance placed upon the previous view of the law, and “the effect on the administration of justice of a retrospective application” of the new rule.... We subsequently overruled Linkletter in Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), and eliminated limits on ret-roactivity in the criminal context by holding that all “newly declared ... rules[s]” must be applied retroactively to all “criminal cases pending on direct review.” Id. at 322, 107 S.Ct., at 712. This holding rested on two “basic norms of constitutional adjudication.” Ibid. First, we reasoned that “the nature of judicial review” strips us of the quintessentially “legislative]” prerogative to make rules of law retroactive or prospective as we see fit. Ibid. Second, we concluded that “selective application of new rules violates the principle of treating similarly situated [parties] the same.” Id. at 323, 107 S.Ct. at 713.

Harper v. Virginia Department of Taxation, 509 U.S. 86, 94-95, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (extending Griffith’s ban against “selective application of new rules” to civil cases).

¶ 38. The Harper court confirmed, “When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.” Harper, 509 U.S. at 97, 113 S.Ct. 2510. Further, the court declared that

The Supremacy Clause, U.S. Const., Art. VI, cl. 2, does not allow federal retroactivity doctrine to be supplanted by the invocation of a contrary approach to retroactivity under state law. Whatever freedom state courts may enjoy to limit the retroactive operation of their own interpretations of state law ... cannot extend to their interpretations of federal law.

Id. at 100, 113 S.Ct. 2510 (citations omitted).

¶ 39. The majority’s reliance upon the state, rather than federal, approach to ret-roactivity is, thus, error. The Supreme Court’s interpretation of the Confrontation Clause as announced in Crawford must “be given full retroactive effect in all cases still open on direct review” on March 8, 2004, the date of the Supreme Court pronouncement. Since the instant direct appeal was pending on that date, we must determine whether the trial court’s rulings comport with the requirements of Crawford:

Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — as does [Ohio v.] Roberts, [448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597], and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. WTiere testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of “testimonial.” Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closet kinship to the abuses at which the Confrontation Clause was directed.

Crawford, 541 U.S. 36, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (footnote omitted).

¶ 40. The majority opinion suggests that Crawford would apply to the facts of the instant case. I concur. The evidence introduced at trial was testimonial. The co-defendant gave his statement during a police interrogation, a situation which the Supreme Court specifically recognized as giving rise to testimonial evidence. Pursuant to Crawford, the trial court erred in allowing the police officer to testify as to the statement of Bynum’s co-defendant where Bynum lacked the opportunity for cross-examination of his co-defendant. Under the facts of this case, however, I believe the error to be harmless.

¶ 41. The United States Supreme Court has held that Confrontation Clause errors are subject to the harmless-error analysis of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). An otherwise valid conviction will, thus, not be set aside “if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Van Arsdall, 475 U.S. at 681, 106 S.Ct. 1431.

Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s ease.

Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431; Clark v. State, 891 So.2d 136, 142(¶ 29) (Miss.2004).

¶ 42. In Clark, the Mississippi Supreme Court determined that the trial court erred in allowing a police officer to read the statement of a co-defendant to the jury where the co-defendant refused to testify, thereby denying the defendant an opportunity for cross-examination. While the supreme court found that “[t]his is the very kind of violation that Crawford seeks to abolish,” the court determined the error to be harmless in light of the overwhelming evidence against the defendant. Clark, 891 So.2d at 140,142 (¶¶ 16, 30).

¶ 43. In the instant case, the statement given by Bynum’s co-defendant never mentioned Bynum by name. The statement only identified a white male. The statements found to be harmless in Clark mentioned the defendant by name. Given the “benign” nature of the instant statement and the overwhelming evidence against Bynum, as recited in the majority opinion (i.e., the victim’s identification of Bynum, two eyewitnesses’ identification of Bynum as the man they saw running with the purse, and the fact Bynum was seen throwing the victim’s property out of the car window), I would find beyond a reasonable doubt that the trial court’s error in admitting the co-defendant’s statement was harmless error. Accordingly, I concur with the result reached by the majority opinion.

KING, C.J, LEE, P.J., AND IRVING, J., JOIN THIS SEPARATE WRITTEN OPINION.

      . The citation in Cain omitted by the Morgan court was to a state, not federal, decision. See Cain, 552 So.2d at 92 n. 1.

      . The Mississippi Supreme Court's application of Crawford without even questioning the retroactivity of the decision lends further support to the inevitable conclusion that this Court must apply Crawford to the instant appeal.


source: Caselaw Access Project

author: GRIFFIS, J., for the COURT.

license: Public Domain

text:
    Rodney HILL, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01532-COA.
    Court of Appeals of Mississippi.
    Dec. 6, 2005.

      John Carl Helmert, Jr., Clarksdale, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
   GRIFFIS, J., for the COURT.

¶ 1. Rodney Hill was convicted of burglary of a building other than a dwelling. Hill was sentenced to serve seven years in the custody of the Mississippi Department of Corrections, pay a $1,500 fine and pay $150 restitution, and to complete long term alcohol and drug treatment. Hill moved for a JNOV or a new trial, which was denied. On appeal, he claims the trial court erred by: (1) not granting a directed verdict or JNOV, (2) not granting a peremptory instruction or a new trial, (3) allowing an improper jury instruction, and (4) not striking juror Robert Lee for cause. We reverse the burglary conviction due to insufficient evidence.’ We remand for re-sentencing on the lesser-included offense of trespass.

FACTS

¶ 2. On June 30, 2003, about 8:30 p.m., Hill arrived at the home of Janet and James Posey. Mrs. Posey recognized Hill as her husband’s acquaintance, who would often come to the house to borrow “things” from Mr. Posey. Hill asked Mrs. Posey if he could borrow some gasoline. She told him to come back when her husband was home. She saw him get into his car and crank it. Hill came back about thirty minutes later and asked to borrow a wrench. She told him no, then Hill asked to use the phone. Again, she told him to come back later when her husband was home. She watched as he left in his car.

¶ 3. Later, Mrs. Posey observed an individual exit her shed with her husband’s toolbox. The shed was a three-walled structure, approximately twenty-five feet from her house. There was no door or other physical obstruction blocking entrance into the shed. Mrs. Posey called the police and identified Hill as the man who stole the tools from the shed. The toolbox and tools were never recovered.

ANALYSIS

I. Whether there was sufficient evidence to support Hill’s conviction

¶ 4. Requests for a directed verdict and motions JNOV challenge the sufficiency of the evidence. In reviewing a sufficiency of the evidence claim, the Court considers the evidence in the light most favorable to the verdict. Bush v. State, 895 So.2d 836, 844 (¶ 16) (Miss.2005). If any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we uphold the verdict. Id.

¶ 5. Hill argues there was insufficient evidence to convict him of burglary, because there was no evidence of a breaking. Burglary of a building other than a dwelling includes, “breaking and entering ... any building ... in which any goods, merchandise, equipment or valuable thing shall be kept for use, sale, deposit, or transportation, with intent to steal therein, or to commit any felony....” Miss.Code Ann. § 97-17-33 (Rev.2000). “Breaking” is an act of force, however slight, used to gain entrance. Winston v. State, 479 So.2d 1093, 1095 (Miss.1985). However, “the structure must generally be closed. Otherwise the entry is merely a trespass, not a ‘breaking’ and a burglary.” Goldman v. State, 741 So.2d 949, 951 (¶ 8) (Miss.Ct.App.1999).

¶ 6. Here, the shed was a three-walled structure. Therefore, Hill argues there could be no actual breaking into the shed. The State concedes there was no actual breaking. Instead, it argues that there was evidence of constructive breaking. Regardless, the jury was only charged on the definition of an actual breaking. Specifically, the jury instruction stated, “[t]he Court instructs the Jury that breaking [sic] is defined as any act or force, however slight, employed to effect an entrance through any usual or unusual place of ingress, whether open, partly open or closed.” The State never argued constructive breaking to the jury.

¶ 7. In addition, there is simply no evidence of constructive breaking. If a defendant obtains permission to enter a building by using deceit, this will constitute a constructive breaking. Templeton v. State, 725 So.2d 764, 767 (¶ 7) (Miss. 1998). Here, the State would have to prove that Hill gained permission to enter the shed through an act of deceit. The uncontroverted evidence was that no permission was given to enter the Poseys’ shed. His entry in the shed, therefore, cannot be the product of any deceit on his part.

¶ 8. Additionally, the State does not even accuse Hill of lying to try to gain access to the shed. Rather it accuses Hill of trying to enter the Posey home by lying about needing gas, a wrench and the phone. The State reasons that Hill must have lied, because he failed to prove he was telling the truth. Besides misapprehending the burden of proof, the State misunderstands the concept of constructive breaking. The undisputed evidence was that Hill did not gain entry of the Posey home. Even if he were trying to enter the Posey home by lying, this cannot be considered as constructive breaking of the shed. Attempted constructive breaking of one building does not support a burglary conviction for a separate building. Oken v. State, 327 Md. 628, 612 A.2d 258, 276 (1992).

¶ 9. Breaking is an essential element to the crime of burglary. Miss.Code Ann. § 97-17-33 (Rev.2000). Considering the evidence in the light most favorable to the verdict, we are unable to identify evidence of a breaking in this case. Therefore, we find that no rational juror could have found Hill guilty of the crime of burglary. It was error for the trial court to deny Hill a directed verdict or motion for a JNOY. Accordingly, we reverse the burglary conviction.

¶ 10. However, when a conviction is reversed due to insufficient evidence, “no new trial is required and the defendant may be remanded for re-sentencing on the lesser included offense where proof establishes the lesser offense.” Shields v. State, 722 So.2d 584, 585 (¶ 7) (Miss.1998). This is known as the direct remand rule. Id.

¶ 11. Trespass is the lesser-included offense of burglary. Anderson v. State, 290 So.2d 628, 628-29 (Miss.1974). It is an implicit finding in every burglary conviction. Id. The elements of trespass include wilfully and maliciously entering another’s property without permission or remaining on his or her property after being told to leave. E.g., Miss.Code. Ann. §§ 97-17-85, 97-17-87, 97-17-93, and 97-17-97 (Rev.2000).

¶ 12. The evidence was uncontroverted that Hill did not have permission enter the Poseys’ shed. He was told approximately three times to leave the premises. Nevertheless, he returned and entered the shed. Pursuant to Anderson and Shields, we affirm Hill’s conviction on the crime of trespass under Mississippi Code Annotated Section 97-17-87. We remand for re-sentencing consistent with this opinion.

II. Was the verdict against the overwhelming weight of the evidence ?

¶ 13. Next, we examine whether the trial court should have granted Hill’s motion for new trial. The only evidence that placed Hill at the scene was Mrs. Posey’s testimony. Hill maintains that she was already predisposed to identify him as the culprit, because she had seen him earlier that evening. The State maintains that Mrs. Posey had ample opportunity to note what Hill looked like so she could positively identify him as the perpetrator.

¶ 14. A motion for a new trial challenges the weight of the evidence. Bush, 895 So.2d at 844 (¶ 18). We review a trial court’s denial of a new trial for an abuse of discretion. Montana v. State, 822 So.2d 954, 967 (¶ 61) (Miss.2002). In reviewing whether a verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict. Id. “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Id. at 967-68.

¶ 15. Mrs. Posey testified that Hill came to her door twice. She knew him, because he was an acquaintance of her husband’s and had come to the house to borrow things before. At 8:30 p.m., he asked to borrow some gas. She told him to return when her husband was at home. She saw him get in his car and crank it. Around ten to fifteen minutes later he returned standing in front of her door. She testified that she and her young kids were scared and upset at this. Her youngest child was crying, and Hill seemed nervous. The door was glass, and she spoke to him through it. He asked to borrow a wrench. She told him no. Then he asked to use the phone. Again she told him to come back when Mr. Posey was at home. She watched as he left again in his car. She sat back down to watch a movie. At about 9:00 p.m., through her mini blinds, she saw something run through the yard, into the shed. There was a light near the shed. She went to her window and saw Hill exit the shed with the toolbox and run back to his car. The distance from the window to where he was running was about twenty-five feet.

¶ 16. The jury heard evidence that Mrs. Posey’s account at trial differed from the account she gave police. She told police that she did let Hill borrow gas that night. At trial, she denied ever letting him borrow any gas. Mrs. Posey explained the discrepancy from the fact that she was scared and upset when she gave her statement to the police.

¶ 17. The weight of the evidence supports the jury finding that Hill was the one who trespassed into her shed. Accepting the evidence that supports the verdict at true, we find there was evidence that Mrs. Posey saw Hill exit her shed with her husband’s tools and leave in his car. Mrs. Posey knew Hill prior to the night in question and had seen him twice before the theft. Also, she had an opportunity to observe his car several times that night. Therefore, the jury could give great weight to her testimony when she said it was Hill that stole the tools. This issue is without merit.

III. Was the jury properly instructed?

A. Untimely filed jury instruction

¶ 18. Hill challenges the jury instruction which charged the jury on the elements of burglary. First he objects on the ground that the instruction was not filed before trial. Jury instructions must be filed twenty-four hours before trial. URCCC 3.07. Defendant must show prejudice resulting from an untimely filed jury instruction. Clair v. State, 845 So.2d 733, 736 (¶ 10) (Miss.Ct.App.2003). Hill does not point out how he would have defended his case differently had he had this jury instruction any earlier. We hold that the error was harmless.

B. Variance from the indictment

¶ 19. Hill also argues that the jury instruction varied from the indictment. While the indictment alleged the tools were worth at least $250, the jury instructions did not contain value as an element. The State argues that Hill waived this objection, because he failed to raise it before the trial court.

¶20. The Mississippi Rules of Civil Procedure set out the rules for objecting to jury instructions:

No party may assign as error the granting ... of a jury instruction unless he objects thereto at any time before the instructions are presented to the jury.... All objections shall be stated into the record and shall state distinctly the matter to which objection is made and the grounds therefor.

M.R.C.P. 51(b)(3). More specifically, failure to object on the ground that the instructions omit an element listed in the indictment bars the issue from appellate review. Steen v. State, 873 So.2d 155, 161 (¶ 25) (Miss.Ct.App.2004). Hill did not preserve this issue for appeal. We hold this issue is waived.

TV. Should the trial court have stricken venireman Robert Lee for cause?

¶ 21. Hill finally argues that he is entitled to a new trial, because the trial court abused its discretion in denying his for cause challenge against a prospective juror. Prospective juror Robert Lee revealed he was a victim of several theft crimes, and Hill challenged Lee’s ability to be impartial. The State countered that Lee stated he could be impartial in this case. Regardless, Lee did not ultimately serve on the jury.

¶ 22. Allowing for cause challenges in jury selection is left to the discretion of the trial court. Keys v. State, 909 So.2d 757, 760 (¶ 4) (Miss.Ct.App.2005). No reversible error can occur when the venire member in question is ultimately excused by a peremptory challenge. Sewell v. State, 721 So.2d 129, 135 (¶ 28) (Miss.1998). The record reveals that Lee did not serve as a juror or alternate juror. Therefore, there is no reversible error in the trial judge’s denial of the for cause challenge. This issue is without merit.

CONCLUSION

¶ 23. We reverse the burglary conviction and remand the case for re-sentencing on the lesser-included offense of trespass.

¶ 24. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT ON THE CONVICTION OF BURGLARY OF A BUILDING OTHER THAN A DWELLING IS REVERSED AND REMANDED FOR RE-SENTENCING CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., BRIDGES, CHANDLER, BARNES AND ISHEE, JJ„ CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


author: IRVING, J., for the Court.

text:
    Iris M. WILNER, Appellant v. M. Neil WHITE, M.D., and Gulf Coast OB/GYN, P.A., Appellees.
    No. 2003-CA-01733-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2005.

      Henri M. Saunders, attorney for appellant.
    Matthew Floyd Jones, Gulfport, attorney for appellees.
   MODIFIED OPINION ON MOTION FOR REHEARING

IRVING, J., for the Court.

¶ 1. Appellant’s motion for rehearing is granted. The original opinion issued in this case is withdrawn, and this opinion is substituted in its place.

¶ 2. A motion for summary judgment was filed by a defendant doctor and his clinic who had been added as parties by an amended complaint. The motion was granted on the basis that the amendment was made after the expiration of the period of limitations. The plaintiff appeals. We find that, based on the unique facts of this case, the amended complaint should be treated as an original complaint as to the added parties, and since the amended complaint was filed prior to the expiration of the statute of limitations, and a summons, along with the amended complaint, was served upon the added parties within the time period required by Mississippi Rules of Civil Procedure 4(h), the trial judge erred in granting summary judgment. Therefore, we reverse and remand.

FACTS

¶ 3. Iris M. Wilner was admitted to Singing River Hospital for a diagnostic laparoscopy on January 27, 1997. Immediately after the procedure, she noticed pain, weakness, and numbness in her left leg. The condition continued and she was diagnosed with compression neuropathy. On February 12, 1998, Wilner filed suit naming as defendants Singing River Hospital System, a nurse, and John Does 1-4. Wilner took Dr. M. Neil White’s deposition on August 12, 1998. Dr. White worked with Gulf Coast OB/GYN, P.A.

¶ 4. On January 27,1999, Wilner filed an amended complaint, without leave of court, naming four additional defendants. On that day, she also filed a motion for leave to amend. Among those who were newly named as defendants were Dr. White and Gulf Coast OB/GYN. Two other parties who were named in the new pleadings are not involved in this appeal. On April 22, 1999, White and Gulf Coast OB/GYN were served with a summons and the amended complaint. On July 13, 1999, Wilner filed are-notice of hearing bn her motion for leave to amend, advising that the motion would be called up for hearing on August 20, 1999. On November 29, 1999, the circuit court denied the motion and dismissed the amended complaint. In doing so, he found that Wilner’s “amended complaint filed on the same date as the motion to amend on January 27,1999, is ineffectual and is a nullity as there were never any proceedings before this court allowing the amended complaint.” On appeal, we reversed and ordered that on remand the amendment be allowed. Wilner v. White, 788 So.2d 822 (Miss.Ct.App.2001). There is no evidence in the record that Wilner ever filed an amended complaint after remand. Apparently, all parties deemed the amended complaint filed on January 27, 1999, was sufficient. White and Gulf Coast OB/GYN answered the amended complaint on August 9, 2001, and participated in discovery prior to filing the motion for summary judgment on March 31, 2003. In their answer, White and Gulf Coast OB/GYN did not raise the issue of the amended complaint not relating back. On White and Gulf Coast OB/GYN’s new motion for summary judgment; based on the applicable statute of limitations, was then granted. The circuit court found that the amended complaint did not relate back to the original complaint and granted the motion.

DISCUSSION

1. First appeal

¶ 5. The reach of this Court’s decision in the first appeal is one of the central disputes now on the second appeal. The initial appeal was from the trial judge’s denial of Wilner’s motion to amend in order to name White and Gulf Coast OB/ GYN as defendants. We relied on the court rule which requires that “leave [to amend] shall be freely given when justice so requires.” M.R.C.P. 15(a), quoted in Wilner, 788 So.2d at 824 (¶ 7). Only in exceptional circumstances should an amendment be refused, such as when actual prejudice to the opposing party would occur or due to futility of the amendment. Id. at (¶ 8). The Court then addressed only the prejudice issue, and stated that nothing in the record revealed “any undue prejudice caused by the allowance of Wil-ner’s amended complaint.” Id.

¶ 6. This is the point in our prior opinion that becomes the fulcrum on which application of the “law of the case” doctrine turns for today’s issues. That doctrine prevents altering the earlier-determined legal principles at the time of later proceedings in the same case.

The doctrine of the law of the case is similar to that of former adjudication, relates entirely to questions of law, and is confined in its operation to subsequent proceedings in the case. Whatever is once established as the controlling legal rule of decision, between the same parties in the same case, continues to be the law of the case, so long as there is a similarity of facts. This principle expresses the practice of courts generally to refuse to reopen what has previously been decided. It is founded on public policy and the interests of orderly and consistent judicial procedure.

Florida Gas Exploration Co. v. Searcy, 385 So.2d 1293, 1295 (Miss.1980), quoting Mississippi College v. May, 241 Miss. 359, 366, 128 So.2d 557 (1961). When an appellate court considers a second appeal in a case that it previously reviewed, its prior holdings usually are not to be changed. Exceptions include obvious and significant errors that create an injustice, which could include intervening changes in the law. Florida Gas, 385 So.2d at 1295.

¶ 7. Our prior holding determined that the trial judge erred by denying an amendment to the complaint, since such amendments should be freely permitted. We held that “under the ‘freely given where justice so requires’ standard, Wilner should have been allowed to amend her complaint and to test her claim on the merits since even the few facts given appear to present a proper subject for relief. Estes v. Starnes, 732 So.2d 251, 252 (¶ 4) (Miss.1999). The motion to amend was filed within the statutory time allowed and should have been granted.” Wilner, 788 So.2d at 824 (¶ 9).

¶ 8. We did not specifically address whether the amendment would relate back, even though the dissent focused on that issue. Nevertheless, the only logical conclusion to be drawn from our holding is that we implicitly held that the amendment should relate back to the filing of the original complaint. In the absent of a relation back, there was simply no way the plaintiff could “test her claim on the merits,” as we held she was .entitled to do. We should have been more explicit in our holding, for the issue of whether an amendment relates back is no perfunctory matter to be determined by implication from our resolution of other issues in the case.

¶ 9. Although we noted in our 2001 decision that Wilner filed her motion to amend and the amended complaint (without court approval) within the statutory time allowed, that is, prior to the running of the statute of limitations, we did not discuss the significance of this fact in relationship to our finding that the motion to amend should have been granted. Wilner, 788 So.2d at 824 (¶ 9). Nor did we discuss the fact that a summons and the amended complaint were timely served on the new parties. However, since our 2001 decision, the Mississippi Supreme Court decided Curry v. Turner, 832 So.2d 508 (Miss.2002), which holds that the filing of a motion to amend does not toll the statute of limitations. Therefore, even if we had specifically and explicitly held that the timely filing of the motion to amend and the amended complaint (without court approval) tolled the statute of limitations, that could not now be the law of the case in light of the Curry decision by our supreme court.

¶ 10. The question now is whether, in the light of Curry, the trial court erred in granting summary judgment. It seems rather clear that unless (1) the amendment relates back to the original filing, (2) Curry is distinguishable, or (3) the amended complaint can be treated, for purposes of the added parties, as an original complaint, Wilner cannot prevail. We discuss these in turn.

2. “Relation back” of amendment

¶ 11. After the amendment was allowed on remand, Dr. White and Gulf Coast OB/GYN argued they were not fictitious parties under Mississippi Rule of Civil Procedure 9(h), that they were known to Wilner as possible defendants so there was no mistake as to their identity under Rule 15(c), and that the statute of limitations had expired. The trial judge agreed and granted judgment.

¶ 12. Mississippi Rule of Civil Procedure 15(a) states that “a party may amend a pleading as a matter of course at any time before a responsive pleading is served” or, at any other time, “only by leave of court or upon the written consent of the adverse party.” Wilner did not amend her complaint prior to the serving of a responsive pleading, nor did she obtain the written consent of the parties to be added by the amendment. Therefore, she needed to acquire leave of court before amending her complaint.

¶ 13. A specific but subsequent part of the same Rule 15 on granting amendments sets the requirements.

Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by Rule 4(h) for service of the summons and complaint, the party to be brought in by amendment:
(1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining .the party’s defense on the merits, and
(2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. An amendment pursuant to Rule 9(h) is not an amendment changing the party against whom a claim is asserted and such amendment relates back to the date of the original pleading.

M.R.C.P. 15(c).

¶ 14. An initial question is the date on which to consider an amendment to be effective. Wilner filed the motion for leave to amend and an actúal amendment on the last day of the limitation period, which was two years from the date of the alleged negligence. Miss.Code Ann. § 15-1-36 (Rev.2003) (two years to file on certain malpractice claims). Since Wilner needed leave of court to amend her complaint, the question is whether her motion for leave tolls the limitation period, or whether the order granting leave after remand could have, or should have, been effective retroactive to the date of filing of the motion. Since the first Wilner appeal, the Mississippi Supreme Court has evaluated the tolling issue. Curry v. Turner, 832 So.2d 508 (Miss.2002).

¶ 15. In Curry, the plaintiff was allowed to amend her complaint to add additional defendants. Id. at 510 (¶ 2). However, the court later dismissed the ease because of its finding that the statute of limitations had expired prior to the amendment. Id. The Supreme Court affirmed. Id. at 513 (¶ 10). Curry argued that the statute of limitations is tolled if the motion to amend is made prior to the running of the statute. Id. at 510 (¶ 3). The Supreme Court rejected the concept of tolling. Instead, the issue is whether the Rule 15(c) standards on an amendment’s relating back to a prior date had been satisfied. Id. at 513 (¶¶ 10-11).

¶ 16. We examine the specific facts of Wilner’s amendment. Her attorney acknowledged that he knew at least by the time of a deposition on August 12, 1998, of the involvement of the doctor and clinic that were the subject of the amendment. The trial judge asked Wilner’s counsel, “Did you learn anything in their deposition that would indicate to you that your client had a cause of action against [White and Gulf Coast OB/GYN] at that time?” Counsel answered, “Yes.” At the 1999 hearing on the motion to amend, Wilner’s attorney said that he had waited until the last day of the limitations period because he was unsure what kind of case he wanted to bring. He was in settlement negotiations with the hospital defendant and said that “it may not be necessary” to bring the new parties into the suit if the hospital settlement was satisfactory.

¶ 17. The trial court in granting summary judgment after our remand concluded as a matter of fact that Wilner and her attorney were aware no later than five months before the expiration of the limitations period of the identity of the new potential parties, could have included the new defendants at that time, and were “merely tardy” in making the amendment. We find essentially undisputed evidence to support that fact-finding.

¶ 18. The legal standards that are to be applied against those facts under Rule 15(c) as discussed in Curry are not complex. All parties agree that the amended complaint arose from the same “conduct, transaction, or occurrence” set forth in the original complaint, this being the January 27, 1997 laparoscopy. M.R.C.P. 15(c). A variety of matters may be the subjects of amendments, such as new claims or new defenses. An amendment that changes the parties against which the claim is asserted will relate back if within the statute of limitations period and the additional 120 days for service of process, the new party has received such notice of the action as will prevent prejudice, and the new party knew or should have known “that but for a mistake concerning the identity of -the proper party, the action would have been brought against the party.” M.R.C.P. 15(e). If the complaint uses- fictitious names because the plaintiff was “ignorant of the name of an opposing party and so alleges in his pleading,” then an amendment to add the newly discovered actual party “relates back to the date of the original pleading.” M.R.C.P. 9(h) and 15(c)(2).

¶ 19. There is little doubt that the new parties had almost from the beginning of Wilner’s initial complaint “received such notice of the institution of the action that the [parties] will not be prejudiced in maintaining the [parties’] defense on the merits,” and thus Rule 15(c)(1) was satisfied. The trial judge specifically found that adequate notice existed.

¶20. As to Rule 15(c)(2), two possibilities arise in which the amendment might be found to relate back. Wilner had initially named in the complaint four Rule 9(h) parties, four “John Does” as she called them. The Supreme Court has held that the relation back provision of Rule 15(c) as to fictitious parties named under Rule 9(h) was inapplicable when delay in adding the proper party continues beyond the time that a “reasonably diligent inquiry by the appellants into the history of the deceased’s medical treatment would have revealed to appellants the identities of the persons they sought to identify” as a “John Doe” unnamed party. Womble By and Through Havard on Behalf of Womble v. Singing River Hosp., 618 So.2d 1252, 1267 (Miss.1993), but see Sparks v. Kim, 701 So.2d 1113, 1115 (Miss.1997) (limited an unrelated holding that had failed to find physician immunity in certain situations).

¶ 21. Well in advance of the date that she filed for leave to amend, Wilner was aware of the new possible defendants who are the subject of this proposed amendment. Under Womble, there was not reasonable diligence. Further, at the hearing on the amendment, the court asked if the motion was based on Rule 9(h). Wilner’s counsel responded, “It is not based upon that.” So the argument has not even been made that Rule 9(h) is a vehicle to use here.

¶.22. The other means to satisfy the second requirement of Rule 15(c) for relation back is that the defendant whose join-der is sought “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.” M.R.C.P. 15(c)(2) (emphasis added). Applying that concept to our facts, White and Gulf Coast OB/GYN must have known that absent some mistake by the plaintiff as to who the responsible doctor and clinic were, Wilner would have named them as defendants. We agree with Wilner that by the date of White’s deposition five months before the expiration of the statute of limitations period, White knew well the potential of being sued. However, that deposition also provides the date that Wilner positively knew White and Gulf Coast OB/ GYN were proper parties under her allegations. There has never been any suggestion that the plaintiff, especially after the deposition, misidentified or otherwise was mistaken about the identity of the responsible doctors. There was rather a conscious, knowing decision not to file suit against White and Gulf Coast OB/GYN.

3. The amended complaint

¶ 23. Although we find that the amendment does not relate back under the provisions of Rule 15(e), our inquiry should not end here. As a result of the first appeal, Wilner was allowed by this Court to amend her complaint after the statute of limitations had expired. The motion for leave to amend and the amended complaint had been filed prior to the end of the limitations and service of process period. A summons and the amended complaint were served on White and OB/GYN within 120 days following the filing of the amended complaint. The motion, though, had not then been brought on for hearing until after the limitations and the process service window closed. The amended complaint did not drop any of the original parties. The amended complaint added four new parties although only two are involved in this appeal.

¶ 24. If Wilner had named the four new parties in a separate, original complaint and moved to consolidate the two cases, we would not have an issue with the statute of limitations, nor would there be an issue regarding relating back. Should she be denied the opportunity to proceed even though she filed suit against the new parties before the statute of limitations ran and had a summons and a complaint (although designated as an amended complaint) served on the new parties within the period of time required by Mississippi Rules of Civil Procedure 4(h)? We think not.

¶ 25. In King v. American RV Centers, Inc., 862 So.2d 558 (Miss.Ct.App.2003), we held that the trial court erred in dismissing an amended complaint, which was filed prior to the expiration of the statute of limitations, although the plaintiff could not technically file an amended complaint because there was no original complaint to amend. Id. at 562 (¶¶ 20-21). We found that at the time the plaintiff filed the amended complaint he could have filed an original complaint; therefore, he should not lose his day in court because of the technicality, that to do so would exhort form over substance. Id. We find our reasoning in King helpful here. If Wilner had not renamed the original parties in her amended complaint, this case would be virtually indistinguishable from King. The fact, however, does not seem to be a compelling reason for holding any differently than we did in King. Therefore, for the reasons discussed, we reverse and remand the grant of summary judgment.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY GRANTING SUMMARY JUDGMENT IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPEL-LEES.

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

      . Although we discuss the amended complaint as an amendment, it is technically inaccurate to do so because Wilner filed an amended complaint, not an amendment to her original complaint.

      . We searched the record and were not able to find any evidence that Wilner had noticed her motion prior to July 13, even though the pleading which she filed on July 13 was entitled, “Re-notice of Hearing on Motion to Amend Complaint of Iris M. Wilner.”


author: CHANDLER, J.,

text:
    Melissa FRANKS, Appellant v. FOAM CRAFT and Mississippi Manufacturers’ Association Workers’ Compensation Group, Appellees.
    No. 2004-WC-02363-COA.
    Court of Appeals of Mississippi.
    Jan. 17, 2006.
    Rehearing Denied May 23, 2006.

      Cory Patrick Sims, William C. Stennett, attorneys for appellant.
    Jeffrey Dean Leathers, Tupelo, attorney for appellees.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Melissa Franks filed a. petition to controvert her workers’ compensation claim. The administrative law judge denied Franks’ claim, finding that Franks failed to show that her injury was work-related. The Workers’ Compensation Commission and the Lee County Circuit Court affirmed. Franks appeals to this Court, raising the following issue:

WHETHER FRANKS CARRIED HER BURDEN OF PROOF THAT HER INJURY WAS WORK-RELATED

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On June 4, 2001, Melissa Franks was working at her job at Foam Craft, which involved stacking bags of inserts. Each bag weighed thirty-five pounds, and she had to stack the bags over her head. The time card showed that Franks worked her full eight hour shift on that day.

¶ 4. The next morning, Franks awoke with pain in her back and could not walk. She asked her sister-in-law to inform her employer that she could not work. On June 6, 2001, she went to see her family physician, Dr. Grayden A. Tubb. Dr. Tubb recorded that Franks stated that she had been in pain for three or four days. During this visit, Dr. Tubb specifically asked Franks whether the injury was work-related, and Franks said the injury was not work-related.

¶ 5. Dr. Tubb restricted Franks to light duty. Franks returned to work on June 7, 2001, but she was sent home because there was no light duty job available that day.

¶ 6. On June 18, 2001, Franks re-visited Tubb. In Dr. Tubb’s office notes, he stated:

She [Franks] says that she has gone to a lawyer to have it taken care of by Workmen’s Compensation, but I reminded her that on June 6, 2001, that when she came in that she had told me that she did not remember any kind of an injury and that it had started hurting three or four days before that. She said that she had tried to go back to work with a note that she needed to do light duty and they told her that they would not work [her] until 'she was able to go back to work entirely and would not let her go back to work, so she saw a lawyer.

¶ 7. Franks returned to Dr. Tubb on August 7, 2001. For the first time the nurse’s notes list the onset of pain as June 4, 2001. Also, for the first time, the nurse’s notes recount an alleged work injury.

¶ 8. Throughout the entire course of treatment, Franks never related to Dr. Tubb a specific cause for her back condition. Dr. Tubb testified, “She never did identify how she hurt her back. She just said that she felt it was a Workman’s Comp, injury.” Dr. Tubb testified that Franks’ condition could “be caused by any number of things.”

¶ 9. Franks offered into evidence the medical records of Dr. Laura Gray. Dr. Gray examined Franks on October 22, 2001, and administered an MRI on November 15, 2001. The MRI showed that there was disc herniation. Dr. Gray’s report stated that Franks’ back had “popped” while she was stacking inserts at work on June 4, 2001, and that she had been unable to get out of bed the next day because of the pain. On a form labeled, “Physical Exam,” Dr. Gray put an asterisk beside the phrase, “Over-reaction (pain behavior).”

¶ 10. On November 30, 2001, Franks returned to Dr. Tubb. Dr. Tubb stated in his notes:

Her lawyer sent her to Dr. Laura Gray who did a magnetic resonance imaging on her back and sent the report to the lawyer, but she did not give her any treatment. The magnetic resonance imaging shows a small broad based central L5-S1 disc herniation. There was not overt nerve canal or neuroforaminal stenosis.

¶ 11. Franks filed a motion to controvert. The administrative law judge found that Franks failed to meet her initial burden of proof that she sustained a work-related injury. Accordingly, the administrative law judge denied Franks’ workers’ compensation claim. The Workers’ Compensation Commission affirmed the administrative law judge, and the circuit court affirmed the Commission.

ANALYSIS

WHETHER FRANKS CARRIED HER BURDEN OF PROOF THAT HER INJURY WAS WORK-RELATED

¶ 12. The Workers’ Compensation Commission is the ultimate finder of fact. Vance v. Twin River Homes, Inc., 641 So.2d 1176, 1180 (Miss.1994). The findings of the Workers’ Compensation Commission are binding on this Court when the Commission’s decision is supported by substantial evidence. Guardian Fiberglass, Inc. v. LeSueur, 751 So.2d 1201, 1204(¶ 7) (Miss.Ct.App.1999). Therefore, this Court will not overturn the Commission’s findings of fact unless they were arbitrary and capricious. Id.

¶ 13. The initial burden of proof is on the claimant to show that she has suffered a loss of wage-earning capacity as the result of a work-related injury. Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 12 (Miss.1994). Unless common knowledge suffices, medical evidence must prove not only the existence of a disability but also its causal connection to the employment. Howard Industries, Inc. v. Robinson, 846 So.2d 245, 259 (¶ 49) (Miss.Ct.App.2002).

¶ 14. Franks first visited Dr. Tubb on June 6, 2001, two days after she alleged she suffered a work-related injury. According to Dr. Tubb’s notes from the first office visit, the pain began three or four days prior to the doctor visit, and Franks related at that time that her pain was not due to a work-related injury. Although Franks continued to receive treatment from Dr. Tubb, she never related a work-related injury to him. The first notation of a work-related injury was in a nurse’s note on August 7, 2001, Franks’ fourth visit to Dr. Tubb. This notation did not identify how she allegedly hurt her back.

¶ 15. Dr. Gray was the only other treating physician for Franks. Although Dr. Gray performed an MRI that showed a herniated disc, she did not set forth an opinion regarding the link between Franks’ injury and her activities at work.

¶ 16. Bob Wiles, Franks’ supervisor at Foam Craft, testified that Franks had not reported a work-related injury to him during the week on June 4, 2001. Wiles also testified that when Franks returned to work on June 7, 2001, she stated that she did not know how she injured her back. Wiles testified that Franks did not claim that her injury was work-related until after she retained an attorney.

¶ 17. The Workers’ Compensation Commission was presented with substantial evidence showing that Franks failed to meet her burden of proof that her injury was work-related.

¶ 18. 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, BARNES AND ISHEE, JJ., CONCUR. ROBERTS, J„ NOT PARTICIPATING.