author: GRIFFIS, J„

text:
    Willie ADAMS a/k/a Scrap Iron, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01486-COA.
    Court of Appeals of Mississippi.
    May 9, 2006.
    Rehearing Denied Aug. 29, 2006.
    Certiorari Dismissed Dec. 14, 2006.

      Pamela A. Ferrington, Natchez, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   GRIFFIS, J„

for the Court.

¶ 1. Willie Adams was convicted of manslaughter and sentenced to serve twenty years in the custody of the Mississippi Department of Corrections. On appeal, Adams claims that the trial judge erred by failing to suppress Adams’ statements and in denying Adams’ motion for change of venue. We find no error and affirm.

FACTS

¶ 2. On the night of August 8, 2003, Willie Adams and several friends were sitting in the parking lot of the car wash that Adams owned in Fayette. They were drinking and hanging out. Meisha McGee and another man drove up. A dispute arose over repairs to McGee’s vehicle. Adams was eventually hit over the head with a beer bottle.

¶ 3. Adams went to his vehicle to retrieve his gun, but did not find it. He turned around, and Timothy Lee was waving a gun in McGee’s face arguing with him. Adams tried to take the gun from Lee, and they wrestled over it. The gun discharged two or three times. Two of the shots struck McGee in the neck, killing him. When the shooting stopped, Adams had possession of the gun.

¶4. Adams went to the Fayette Police Department and spoke to Officer Shawn King. Adams told King that a shooting had just taken place at his car wash and that he thought someone was dead. Adams turned the gun over to Officer King.

¶ 5. Adams testified that a police officer carried him to the parking lot of the emergency room and dropped him off. Adams was not able to enter the emergency room because the door was locked, and the orderly would not let him in. Adams then said that, while he was in the parking lot of the emergency room, a car drove by and the passengers yelled to him. Adams stated that he was afraid, so he ran back to the Fayette Police Department. However, no one was there. Adams then ran to the nursing home, which is attached to the emergency room. Adams asked for his sister who worked at the nursing home. She was not on duty. Another nurse called Adams’ wife and asked her to come and pick him up.

¶ 6. Adams’ wife then drove Adams to the police department. No one was there so they went to the Jefferson County Sheriffs Office. A deputy then carried Adams back to the Fayette Police Department where he gave two statements: first to Deputy Donald Sampson, and later to Bud Williams, Fayette Chief of Police, and Peter Walker, Jefferson County Sheriff. Later in the day, Adams asked to speak with Sheriff Walker and gave another statement, which was recorded, about the shooting.-

¶ 7. Adams was indicted and charged with murder, in violation of Mississippi Code Annotated Section 97-3-19 (Rev. 2000). Adams was found guilty of the lesser offense of manslaughter.

ANALYSIS

I. Did the trial court erred by failing to suppress Adams’ statements?

¶ 8. The standard of review for a trial judge’s decision to admit or exclude evidence is abuse of discretion. Graves v. State, 492 So.2d 562, 565 (Miss.1986). Adams’ motion to suppress argued that Adams’ statements were obtained through coercion and, therefore, were involuntary. After an evidentiary hearing, the trial judge found that the statements were admissible.

¶ 9. Adams gave four separate statements to law enforcement officers.

¶ 10. First, Adams went directly to the police department. He told Officer King that he “shot some dude,” and he “thought he was dead.” This statement was given after Adams voluntarily presented himself to the police. Adams was not in custody at the time he gave the statement. Furthermore, Adams did not object to the admission of this first statement at the suppression hearing. Instead, Adams’ counsel indicated that he may raise an objection at trial. No objection was offered during the trial.

¶ 11. Adams gave the second statement to Investigator Donald Sampson of the Fayette Police Department. Before giving the statement, Adams was read his Miranda rights and signed a waiver of these rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The waiver was witnessed by Investigator Sampson, and it indicates that the statement was given at 1:10 a.m. on August 9, 2003. Franchessea Adams, Adams’ wife, wrote out the statement and signed at the bottom of the second page along with Adams. Investigator Sampson signed as a witness.

¶ 12. The third statement was given to Bud Williams, Fayette Chief of Police. This statement was given after Adams was again read his Miranda rights. Adams signed a second waiver at 2:25 a.m. This waiver was witnessed by Sheriff Peter Walker. This statement was memorialized by Chief Williams on a narrative form.

¶ 13. The fourth statement was given while Adams was in custody. He asked to speak to Sheriff Walker. At 1:25 p.m. on August 9, 2003, Adams signed a third waiver of his Miranda rights, and Sheriff Walker recorded Adams’ statement.

¶ 14. Adams argues that the three statements that he gave, while in police custody, were in an effort to obtain medical attention. Adams claims that he was told that he could not be treated until he gave a statement. His testimony during the suppression hearing contradicts this claim. Adams testified, on direct examination:

Mr. Taylor: Okay. Did you feel like you needed to have medical treatment then?
Mr. Adams: I know I did.
Mr. Taylor: Is that why you were providing statements?
Mr. Adams: Is that why—
Mr. Taylor: Is that why you’re providing statements?
Mr. Adams: No. Because like Sheriff Walker said, I had called and requested to talk to him, because — you know, I needed somebody to talk to. At that point in time I did.
Mr. Taylor: Did you feel that by giving this statement it would get you medical attention faster?
Mr. Adams: Not just really.

¶ 15. A statement by the accused is admissible if the accused was given the Miranda warnings, and then knowingly, intelligently and voluntarily waived the rights. Busick v. State, 906 So.2d 846, 855(¶ 16) (Miss.Ct.App.2005) (citing Moore v. State, 493 So.2d 1301, 1303 (Miss.1986)). Whether there was an intelligent, knowing and voluntary waiver must be determined from the totality of the circumstances. McGowan v. State, 706 So.2d 231, 235(¶ 12) (Miss.1997). The testimony presented at the suppression hearing supports the admission of Adams’ statements.

¶ 16. Adams waived his rights, in writing, on three separate occasions. He even testified that he did not think that giving the statement would get him medical attention any faster. We find that the trial judge did not abuse his discretion in admitting the statements and find this assignment of error to be without merit.

II. Whether the trial court erred in denying the motion for change of venue?

¶ 17. The standard of review for the trial judge’s decision to deny a motion for change of venue is abuse of discretion. Grayson v. State, 806 So.2d 241, 250(¶ 20) (Miss.2002). Granting of a change of venue is a matter so largely in the sound discretion of the trial court that a judgment of conviction will not be reversed on appeal on the ground that a change of venue was refused, unless it clearly appears that the trial court abused its discretion. Gray v. State, 728 So.2d 36, 65 (¶ 143) (Miss.1998).

¶ 18. Adams argued that the basis for the motion for change of venue was extensive pretrial publicity and because the twin sibling of the victim is a deputy circuit clerk. Mississippi Code Annotated Section 99-15-35 (Rev.2000) provides the requirements for a change of venue:

On satisfactory showing, in writing, sworn to by the prisoner, made to the court, or to the judge thereof in vacation, supported by the affidavits of two or more credible persons, that, by reason of prejudgment of the case, or grudge or ill will to the defendant in the public mind, he cannot have a fair and impartial trial in the county where the offense is charged to have been committed, the circuit court, or the judge thereof in vacation, may change the venue in any criminal case to a convenient county, upon such terms, as to the costs in the case, as may be proper.

(emphasis added).

¶ 19. Here no affidavits were offered in support of the motion. When he overruled the motion, the trial judge stated that “if in fact we get in a voir dire situation and see that we’ve got a problem with the jury, we’ll change it.”

¶ 20. Adams offers no case law in support of his argument that the employment of the victim’s twin required a change of venue. Indeed, our review of the voir dire indicates that Adams had an adequate opportunity to question all members of the venire, and an opportunity to challenge jurors for cause and peremptorily. We find no basis for Adams’ contention. Thus, we find that the trial judge did not abuse his discretion to deny the motion for change of venue.

¶ 21. Accordingly, we affirm.

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

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

      . The State argued that the sibling worked in the circuit clerk's office at the time of the homicide and was not employed with the Jefferson County Circuit Clerks office at the time of trial.


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Robert Earl SPENCER a/k/a Earl Spencer a/k/a James Spencer, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02469-COA.
    Court of Appeals of Mississippi.
    May 9, 2006.
    Rehearing Denied Aug. 29, 2006.
    Certiorari Denied Dec. 7, 2006.
    Kent E. Smith, Holly Springs, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Robert Earl Spencer was indicted and tried on charges of aggravated assault, armed robbery, and felon in possession of a firearm. The jury convicted Spencer of felon in possession of a firearm, in violation of Mississippi Code Annotated section 97-37-5(1) (Rev.2000). The jury was unable to reach verdicts on aggravated assault and armed robbery. Spencer was sentenced as an habitual offender to serve a term of life in prison, without possibility of parole. Spencer appeals and assigns two issues: (1) whether the trial court erred in not granting a directed verdict or JNOV, and (2) whether the State proved each element of the crime beyond a reasonable doubt. We find no error and affirm.

FACTS

¶2. In late October of 2002, Spencer confronted Tavarus Tucker about some rims and amplifiers that had been stolen from his mother’s land. Spencer accused Tucker of stealing these items. Tucker returned the amplifier and told Spencer that Little Curtis Glover had the rims. Tucker and another witness testified that Spencer then pistol whipped Tucker and told Tucker that he better “set up” Glover so Spencer could shoot him. If not, Spencer said he would kill both Tucker and Glover. Spencer admits to slapping Tucker on the head but denies that he was holding a gun. For the next week, Spencer tailed Tucker around town.

¶ 3. About a week later, on October 29, at approximately 9:30 p.m., Tucker was driving Demetrias Balfour and her son home. Tucker noticed that he was being followed. The car was a gold Buick with tinted windows. Tucker could not see how many people were in the car. When he arrived at Balfour’s house, the Buick parked a couple of houses down. Tucker told Balfour to get inside and call the police. After she and her son went inside, the other car parked behind him and blocked him in the driveway. A man got out of the passenger side of the Buick and approached the driver’s side of Tucker’s car, with a gun in his hand. The man had braids and wore a grey shirt and stonewashed blue jeans. Tucker recognized the man as Spencer. Tucker escaped out the passenger side. Tucker ran, and he was subsequently shot once in his back and once in his buttocks. Tucker fell over a hedge and “played dead.” Tucker eventually crawled to his girlfriend’s house, repeating, “Robert Earl Spencer.”

¶ 4. Balfour was the only eyewitness to the incident. From inside her home, she heard the first gunshot. Her father, who also was inside, called Tucker’s girlfriend’s house to let her know he may have been shot. Balfour ran to the window and saw a man fire the second gunshot. She could not see his face but saw that he was wearing a skull cap and a blue jean jacket. This man then drove away in Tucker’s car, while another individual drove away the car that had been following them. She ran outside to look for Tucker, but by this time he had already crawled to his girlfriend’s house, nearby.

¶ 5. Spencer offered an alibi. He testified that he was out of town during the incident. However, when asked where he was, his answers varied from “Chicago” to “Flint, Michigan” to “I don’t know.”

¶ 6. Spencer was indicted and charged with aggravated assault, armed robbery and felon in possession of a firearm. The jury could not reach a verdict on the first two charges but found Spencer guilty of the crime of felon in possession of a firearm, in violation of Mississippi Code Annotated section 97-37-5(1).

STANDARD OF REVIEW

¶ 7. Requests for a directed verdict and motions for 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 will uphold the verdict. Id.

ANALYSIS

I. Did the trial court erred in not directing a verdict or granting a JNOV?

II. Did the State prove each element of the crime beyond a reasonable doubt?

¶ 8. Since both of these issues challenge the sufficiency of the evidence, we address them together.

¶ 9. Spencer complains that the jury verdict was inconsistent. If the jury found there was insufficient evidence that he was the shooter and the robber, then it could not find him guilty of possessing a firearm. He argues there was only evidence that he possessed a gun on an entirely different occasion, for which he was not indicted. The State argues that this prior separate occasion was sufficient to convict him and that there was also testimony that Spencer had a gun on the night of the aggravated assault and armed robbery.

¶ 10. Mississippi Code Annotated section 97-37-5(1) (Rev.2000) provides that:

It shall be unlawful for any person who has been convicted of a felony under the laws of ... any other state ... to possess any firearm ... unless such person has received a pardon for such felony, has received a relief from disability pursuant to Section 925(c) of Title 18 of the U.S.Code, or has received a certificate of rehabilitation pursuant to subsection (3) of this section.

Spencer stipulated that he was a prior convicted felon, as defined by this statute. Tucker testified that he saw Spencer come toward him with a pistol on October 29, 2002. We find that there was sufficient evidence for the jury to convict him of being a felon in possession of a firearm.

¶ 11. Also, we disagree with Spencer’s contention that it was inconsistent for the jury to convict him of this crime, while not returning a guilty verdict on the charges of aggravated assault and armed robbery. The record indicates that there were at least two people in the gold Buick who could have shot Tucker. Although neither Tucker nor Balfour could see in the tinted windows, Spencer emerged from the passenger side of the car. This means there was at least one other person in the Buick, i.e., the driver.

¶ 12. Tucker testified that he saw Spencer with a pistol in his hand. He described Spencer as wearing braids, a grey shirt and stone-washed jeans. Tucker turned and ran. When he was shot, and his car was stolen, he naturally concluded that it was Spencer who shot him and stole his car. Balfour testified that she saw the second gunshot being fired, but it was by a man wearing a skull cap and a blue jean jacket. This man was who she claimed stole Tucker’s car. This was sufficient evidence for the jury to conclude that while Spencer definitely possessed a pistol that night, he may not have been the shooter or the robber. Even if the jury had acquitted Spencer outright on the first two counts, the verdict would still be consistent with the evidence.

¶ 13. We find no error and affirm.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF MARSHALL COUNTY OF CONVICTION OF A FELON IN POSSESSION OF A FIREARM AND SENTENCE, AS AN HABITUAL OFFENDER, TO LIFE WITHOUT POSSIBILITY OF PAROLE, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARSHALL COUNTY.

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


author: IRVING, J.,

text:
    MISSISSIPPI STATE BOARD OF FUNERAL SERVICES, Appellant v. Kenny G. COLEMAN, JR., Appellee.
    No. 2004-SA-02280-COA.
    Court of Appeals of Mississippi.
    May 16, 2006.
    Rehearing Denied Sept. 26, 2006.
    Certiorari Denied Dec. 14, 2006.

      Office of the Attorney General by Onet-ta Whitley, attorney for appellant.
    Ralph Stewart Guernsey, Oxford, David L. Minyard, attorneys for appellee.
    Before LEE, P.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Kenny Glenn Coleman, Jr. applied for a Mississippi funeral service license, which the Mississippi State Board of Funeral Services (Board) denied after a hearing. Coleman appealed the decision to the Lafayette County Circuit Court, which reversed the decision of the Board as arbitrary and capricious. Aggrieved, the Board now appeals to this Court and asserts that the circuit court erred in reversing the Board’s decision because the court improperly applied the Mississippi standard that governs judicial review of an agency’s decision.

¶ 2. We agree, and reverse and render the decision of the circuit court.

FACTS

¶ 3. Coleman had been working at the Memphis Funeral Home and Cemeteries (Memphis) in Memphis, Tennessee, for a few months before he applied to the Board to begin his required training. On his application, Coleman stated that he planned to do his training at the Brantley Funeral Home (Brantley) in Olive Branch, Mississippi, under the guidance of James L. Wray, a Mississippi-licensed embalmer who worked at Brantley. On a renewal application for his training, Coleman indicated that he had been working at Brant-ley and that he planned to continue working there. Coleman also filed several quarterly reports with the Board, detailing the work that he was allegedly doing at Brantley.

¶ 4. Sometime in 2003, the executive director of the Board asked Gene Phillips, who was a Board member and manager at Brantley, how Coleman was doing in his training at Brantley. Phillips responded that he had met Coleman in Tennessee, but that Coleman was not, and had never been, employed at Brantley. Further investigation by the Board revealed that Coleman had never been employed by Brantley, although he had listed Brantley as his place of training on his application. The Board discovered that from May 2002 until March 2003, the time period covered by his applications, Coleman was actually working at Memphis under the guidance of Kevin Hughes, an employee at Memphis.

¶ 5. After uncovering the discrepancies between Coleman’s application and his actual place of employment, the Board issued a notice to show cause, directing Coleman to present evidence as to why he should be given a funeral license in light of his actions. Coleman appeared at the February 2004 hearing with a lawyer he had retained. At the end of the hearing, the Board found clear and convincing evidence that Coleman had falsified information and had not completed his training. Consequently, the Board denied Coleman a license and directed that he not be allowed to apply for another license for two years, at which time he would also have to complete another twelve months of training. The Board also informed Coleman that, when he sought licensure again, none of his prior training would count toward his requirements. Coleman appealed the Board’s decision to the Lafayette County Circuit Court, which reversed the Board.

¶ 6. The circuit court found that the decision of the Board was “arbitrary, ca-prieious, unwarranted, wrong legally as well as morally, and shocks the conscience.” In coming to its conclusion, the court noted that the licensing requirements do not state that the actual embalming of bodies must be done in Mississippi, only that the training must be done at a Mississippi-licensed facility. The court also found that the Board “knew, or should have known since it is responsible for periodic inspections of all funeral establishments, that Brantley Funeral Home had not embalmed a body since April, 1998 and therefore ... they should have notified Coleman immediately that Brantley Funeral Home would not qualify as a place for his Apprenticeship.” The court found that this was especially true because Phillips was both a manager at Brantley and a member of the Board.

¶ 7. The court also found that there was “no rational relationship between the Board’s Order and its interpretation of the statute and the evident intent of the statute; the safe disposal of human remains and the protection of the consumer.” The' court noted that Coleman “thought he was serving an apprenticeship at Brantley Funeral Home in Olive Branch; that he was being supervised by duly licenses preceptors, and there is nothing within this record to find that Coleman has been untruthful, dishonest, fraudulent or improper.... ” Finally, the court found that “[t]he severity of the punishment contained in the Board’s Order appears unusually harsh and therefore the Court finds that the Order and Decision evinced bias or prejudice toward Coleman.... ”

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 8. When reviewing the action of an administrative agency, a court should refuse to uphold the decision if: (1) the decision is not supported by substantial evidence, (2) the decision is arbitrary and capricious, (3) the decision was beyond the scope or power granted to the agency, or (4) the decision violated one of the claimant’s constitutional rights. Allen v. Miss. Employment Sec. Comm’n, 639 So.2d 904, 906 (Miss.1994). The agency is presumed to be correct, and “the challenging party has the burden of proving otherwise.” Id. (citing United Cement Co. v. Safe Air for the Env’t, 558 So.2d 840, 842 (Miss.1990)). In reviewing the agency’s decision, the court “must not reweigh the facts of the case or insert its judgment for that of the agency.” Id. (citing Miss. Pub. Serv. Comm’n v. Merchs. Truck Line, Inc., 598 So.2d 778, 782 (Miss.1992)).

¶ 9. With this standard in mind, we turn to an analysis of each of the above considerations.

Substantial Evidence

¶ 10. In order to be upheld, an agency’s decision must be supported by substantial evidence. In this context, “substantial evidence” has been taken to mean “such relevant evidence as reasonable minds might accept as adequate to support a conclusion. Substantial evidence means evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred.” Miss. Dep’t of Human Servs. v. McNeel, 869 So.2d 1013, 1018(¶ 19) (Miss.20004) (quoting State Oil & Gas Bd. v. Miss. Mineral and Royalty Owners Ass’n, 258 So.2d 767, 779 (Miss.1971)).

¶ 11. After reviewing the transcript of Coleman’s hearing before the Board, we find that the Board’s decision was clearly supported by substantial evidence. Coleman wrote on both his initial application and his renewal application that he was receiving training at Brantley. It was clear, however, that Coleman was actually employed and training at Memphis. This evidence came not only from numerous witnesses and documents, but also from Coleman’s sworn testimony. In finding as it did, the circuit court imper-missibly reweighed evidence and substituted its own judgment for that of the Board’s.

¶ 12. Coleman’s applications and quarterly reports indicated that he was performing his training at Brantley by carrying out various procedures there, when, in fact, those activities were taking place entirely at Memphis. Dolores Kenny, executive director of the Board, testified that “the funeral directing activities and embalming activities would have indicated that they had been performed at this particular establishment [Brantley].” In other words, the Board would not have interpreted Coleman’s reports to mean that he was performing the listed activities anywhere other than at Brantley.

¶ 13. Kenny also testified about her conversation with Phillips, when it was discovered that Coleman did not actually work at Brantley and was unknown by most of the staff there. Phillips himself testified at the hearing that he knew Coleman because he “was introduced to him by Keven Hughes at the Memphis Service Center, when he started being employed there.” Phillips testified that he would have known any trainee at Brantley, but that, to his knowledge, Coleman had never been an employee at Brantley, and would have only been at Brantley if he was there to bring a body down from Memphis.

¶ 14. The Board received a letter from a manager at Memphis, confirming that Coleman was employed in Memphis and had never worked for Brantley. At the hearing, another manager from Memphis testified that Coleman “worked for us in our preparation room [at the Memphis facility].” The manager went on to testify that Coleman had never been an employee at Brantley, but had always been employed at Memphis. On cross-examination, the manager was asked if he could “state with absolute certainty that [Coleman] did not work at times in Brantley.” The manager responded that any work done by Coleman at Brantley was “seldom.” Coleman’s attorney attempted to clarify the manager’s statement by asking: “If a customer came to the Brantley location, Mr. Coleman would have to go to Memphis to do the embalming?” The manager clearly responded: “No, he would already be at Memphis ‘cause that’s where he worked.” (emphasis added). The manager also testified that Coleman had often worked around forty hours per week at Memphis, and therefore could not have been working those same hours at Brant-ley.

¶ 15. In response to a request from the Board, the management at Brantley verified in writing that Coleman had never been employed at Brantley. Additionally, the pay stubs contained in the record clearly stated that they were from the Memphis funeral home. Phillips testified at the hearing that employees at the Brantley funeral home received pay stubs from “SCI, Mississippi.”

¶ 16. Most damaging of all are the admissions made by Coleman during the hearing. When asked why Hughes had not been identified on his application, Coleman stated that he had not included Hughes because “he was employed at the preparation there on Summer Avenue [in Memphis].” Coleman testified that, before sending in his application, he considered himself to be an employee at Memphis, even adding “[t]hat’s where I received my check from.” When asked if there was any change in that status at the time when he sent in his application to the Board, Coleman responded that “[o]ther than work done from part-time and full-time, no, ma’am.” Coleman further testified that, despite the fact that he worked on bodies from Brantley, he was “not employed” at Brantley and dealt with the Brantley bodies only in Memphis. Coleman testified that his interview for his position had occurred in Memphis with Hughes, and not at Brantley with a Brant-ley employee.

¶ 17. Despite the fact that Coleman put Wray as his supervisor on his application, he testified at the hearing that Wray supervised only fifteen to twenty percent of his procedures, while Hughes oversaw one hundred percent of his activities. When questioned by the Board as to how, in light of those percentages, Coleman could consider his quarterly reports to be accurate, Coleman responded that it was “because [Wray] maintained a close contact with Mr. Hughes.” Coleman thereafter testified that he was fully aware that Hughes did not work at Brantley, but worked at Memphis.

¶ 18. The Board questioned Coleman: “when you signed that form [the quarterly report] ... were you indicating that the work was done at Brantley Funeral Home? Did you sign it saying that you were an employee of Brantley Funeral Home and the work was done there?” When Coleman seemed unable to adequately respond to this question, the chairman who had asked the question clarified: “I want to know how you signed it. Did you sign it as a trainee at Brantley Funeral Home and that the bodies were embalmed there?” Coleman’s response to this question was distinctly unhelpful and evasive: “I don’t know if I — I didn’t mean it like that, if that’s what it is, is what I’m saying. I mean tvhat it says is what it says.” (emphasis added).

¶ 19. After the hearing, the Board issued its decision refusing Coleman a funeral service license. The Board noted that there was

clear and convincing evidence that during the period between May 25th, 2002, through March 28th, 2003, Kenny G. Coleman, Jr., ... was employed by Memphis Funeral Home and Cemeteries at its central preparation center in Memphis, Tennessee, and not at Brant-ley Funeral Home.... And in so indicating [that he was employed at Brant-ley], Glenn Coleman ... made false statements to the Board.

As punishment, the Board denied Coleman’s license and ordered that he would “not be eligible to start a period of new apprenticeship or licensing requirements for a period of twenty-four months from this date,” and “[a]ny past training or service completed will not be recognized as any future credit for completion of these requirements.... ”

¶ 20. Coleman contends that the imputed knowledge of the Board that his training would not be valid is sufficient to uphold the circuit court’s ruling. He argues that this is especially so because the State does not, according to him, refute this argument in its brief. However, we note that the State’s brief clearly states [as a response to the court’s finding that the Board should have known that the training would not be sufficient]:

Periodic inspections of funeral establishments are conducted at least once each licensing period, which is a two year period of time. There is nothing in the record that supports the courts [sic] contention that the Appellant knew or should have known that no embalming was performed at Brantley. What the record does show is that Brantley Funeral Home contained all of the necessary components and equipment with which to perform embalming. That no embalming was performed at Brantley Funeral Home was the result of an administrative policy or business decision of the funeral establishment. There was nothing to physically prevent this activity from taking place there. There is nothing in the record that supports the contention that the Appellant was aware of Brantley’s policy prior to the initiation of this investigation. Even assuming an awareness on the part of the Appellant, Appellant was under no affirmative duty to inquire of the arrangement made between Appellee and Brantley, that is to say, that as far as the Appellant knew or should have known, a licensee of the Appellant, employed at a licensed establishment, represented that he would supervise the Appellee’s training; and that that training would take place at Brant-ley Funeral Home.

We agree. There was substantial evidence that the Board was not aware of any problem with Coleman’s application prior to learning that his training was not being done where he had indicated.

¶ 21. The statute governing funeral service licensing is Mississippi Code Annotated section 73-11-57, which states that the Board may refuse to issue a license after finding “[t]he employment of fraud or deception in applying for a license .... ” Miss.Code Ann. § 73-11-57(1)(a) (Supp.2005). The section also states that a license may be refused upon a finding of any “unprofessional conduct which includes ... [a]ny act or conduct ... which constitutes or demonstrates bad faith, incompetency or untrustworthiness; or dishonest, fraudulent or improper dealing....” Id. at (l)(n)(v). Coleman contends that the hearing shows “no evidence” of his “intent to deceive,” and, therefore, there was no substantial evidence supporting the Board’s decision to refuse his license.

¶ 22. Coleman first points to the comments of Chairman Riles, who stated that Coleman “has been honest with me, as far as he would know.” However, Riles could not speak for the whole of the Board in making this comment, and the Board’s interpretation of Coleman’s actions is clear from its decision refusing to grant Coleman a license and its finding that he had knowingly provided false information. Coleman also points to the comments of the State’s attorney during her closing statement, indicating that she felt there was an issue as to Coleman’s culpability. However, it is the decision of the Board that the reviewing court must look at, not the passing arguments of counsel opposite. After reviewing the record, we find that there was substantial evidence from which the Board could discern Coleman’s “intent to deceive.” Furthermore, the statute requires only that the Board find Coleman guilty of “unprofessional conduct.” The evidence adduced at the license hearing was more than sufficient to establish substantial evidence of Coleman’s unprofessional conduct.

¶ 23. Coleman also asserts that the Board did not establish the materiality of the false information he supplied in his application: “what difference, as to materiality, could it make for training purposes as to whether Glenn trained in Memphis, or five miles south in Olive Branch? To parody the late Johnny Cochran, ‘If it doesn’t matter, ignore the Board’s chatter.’ ” Since the Mississippi Code requires that Coleman’s training take place in a Mississippi-licensed funeral facility, the material difference between what Coleman put on his application and what he actually did is significant. The requirement is that the training take place in a Mississippi-licensed facility, not any facility within six miles of Mississippi, as Coleman would apparently have us hold.

¶ 24. Coleman also compares his case to that of Miss. State Bd. of Dental Exam’rs v. Mandell, 198 Miss. 49, 21 So.2d 405 (1945). In Mandell, the Mississippi Supreme Court affirmed a chancery court’s decision that reversed the State Board of Dental Examiners’s denial of a license to Mandell. The board denied the license because it found that Mandell lied in: (1) stating that he was “reared” in the United States, when, in fact, he was older than twenty when he moved to the United States; (2) stating on his application that he had attended two years at Johns Hopkins, when he had attended the school under a different name; (3) improperly placing the names of two men as references at the end of his application when Mandell did not personally know either of the men; and (4) practicing dentistry under an assumed name. Id. at 62-63, 21 So.2d at 408-09. The court upheld the chancery court, finding that all of the above were mistakes or mere technicalities: “reared” does not necessarily mean that one lived in the United States as a small child, according to the dictionary; Mandell did attend Johns Hopkins, despite the fact that he had done so before Americanizing his name; a colleague of the two men had offered them to Mandell as references; and his name was legal, especially in light of the fact that it was an Americanization of his given name. Id. at 65-70, 21 So.2d at 409-11. The court specifically-excused conduct that consists of “only an error of judgment, with no bad or evil purpose.... ” Id. at 65, 21 So.2d at 409.

¶ 25. Coleman’s situation is significantly different from Mandell’s. Intentionally writing the name of a Mississippi funeral home on his application, which Coleman himself admits he did not work at, simply does not constitute “only an error of judgment.” Also, Coleman did not limit his false representations to misrepresenting his place of employment, but he also intentionally misrepresented the identity of his supervisor, because his primary supervisor did not work in Mississippi. After reviewing the record, there was no error on the part of the Board in determining that Coleman’s repeated lies were not mere mistakes. Therefore, Mcmdell provides no relief to Coleman.

¶ 26. Coleman also contends that the Board’s holding seeks “to prohibit the transportation of dead bodies.... ” However, nothing in the Board’s findings or rulings punished Brantley for doing its embalming in Tennessee. In fact, the State confirmed that it had no problem with the transportation of dead bodies across state lines. The problem was with Coleman’s false statements on his application and quarterly reports indicating that he was working at a facility that he himself admits he did not work at. The Board specifically indicated that Coleman was being punished for making “false statements;” no mention was made that Coleman was being sanctioned for having performed embalming outside Mississippi.

¶ 27. Coleman points to the fact that he began his Memphis training before the amendment to the statute that required that training take place in a Mississippi-licensed establishment. He argues that the amendment to the statute cannot apply to him because he began working before the amendment took place. However, Coleman’s application was filed after the amendment to the statute. Therefore, at the time when Coleman was seeking approval for his statutorily-required training, that training—by statute—had to take place in a Mississippi-licensed funeral home. It is undisputed that the Tennessee funeral home is not licensed in Mississippi.

¶ 28. Coleman states correctly that when “a law is misconstrued by an administrative agency, the reviewing Court should not hesitate to review the legal issue de novo.” However, we cannot find where the Board misconstrued any law of the State of Mississippi. Coleman contends that “substantial evidence” cannot be proved by “mere surmise, conjecture, speculation or suspicion .... ” (citing Miss. Real Estate Comm’n v. Ryan, 248 So.2d 790 (Miss.1971)).

¶ 29. The Ryan court stated: “In order to take or suspend the license of a real estate broker under a charge of bad faith, incompetency or untrustworthiness, or dishonest, fraudulent or improper dealings, the proof ... must clearly establish the guilt of the respondent. Proof of surmise, conjecture, speculation or suspicion is not sufficient.” Ryan, 248 So.2d at 793. The court stated separately that “substantial evidence” must be “more than a scintilla; it must do more than create a suspicion, especially where the proof must show bad faith.” Id. at 794. The language that Coleman is clearly referring to, and in fact quoting, relates to the proof necessary to revoke a license on the grounds of bad faith or fraud.

¶ 30. We note again Coleman’s own admissions under oath that he knew he was employed in Tennessee and not Mississippi, and intentionally filled in the name of a Mississippi funeral home which he was fully aware he was not employed by. Therefore, regardless of exactly what burden of proof the Board was required to meet, its decision was clearly based on more than conjecture, speculation, or suspicion. The testimony of numerous individuals that Coleman did not work at Brantley, Coleman’s admission that he knew he did not work at Brantley, and Coleman’s inability to adequately explain why he falsely put on his application that he worked at Brantley clearly provided more than substantial evidence to support the Board’s decision.

¶ 31. In the interest of completeness, we briefly address the fact that Brantley and Memphis were both owned by the same parent corporation, SCI. However, Coleman’s own testimony did not indicate that he thought his training was valid because he was simply working for a different branch of one company. Whether owned by the same parent company as Brantley, Memphis was clearly not a Mississippi-licensed funeral home, and could not provide an adequate location for Coleman’s training.

Arbitrary and Capricious

¶ 32. A reviewing court is also to look at whether the decision of an administrative agency was “arbitrary or capricious.” However, Mississippi case law has firmly established that decisions which are supported by substantial evidence cannot be arbitrary or capricious: “If an agency’s decision is supported by substantial evidence, then it is not arbitrary or capricious.” Pannell v. Tombigbee River Valley Water Mgmt. Dist., 909 So.2d 1115, 1122(¶ 21) (Miss.2005) (quoting Miss. Transp. Comm’n v. Anson, 879 So.2d 958, 964(¶ 17) (Miss.2004)); Pub. Employees’ Ret. Sys. v. Stamps, 898 So.2d 664, 675(¶ 36) (Miss.2005).

¶ 33. Since we have found that the agency’s decision was, in fact, supported by substantial evidence, we also find that the decision was not arbitrary or capricious. Therefore, the circuit court erred in finding the Board’s decision arbitrary and capricious.

Scope or Power of the Agency

¶ 34. In order to withstand judicial review, an agency’s decision must also be within the scope or power granted to the agency or board. Mississippi Code Annotated section 73-11-57 (Rev.2004) gives the Board the authority and power to issue, revoke, and renew licenses. Therefore, the decision refusing a funeral license to Coleman was within the power granted by statute to the Board.

Coleman’s Constitutional Rights

¶ 35. Finally, the Board’s decision must not violate any of Coleman’s rights. We note that Coleman was issued a notice to show cause, and a hearing was set in this matter. At the hearing, Coleman was allowed to present his own witnesses as well as to question the Board’s witnesses. He was also allowed to present other forms of evidence. Furthermore, an attorney was present at the hearing to protect Coleman’s rights. Therefore, the actions of the Board did not violate any of Coleman’s statutory or constitutional rights; his due process concerns were adequately addressed.

Other Matters

¶ 36. Coleman also contends that we cannot reverse the decision of the circuit court because the Board eventually granted his license, pursuant to the circuit court’s decision. Coleman contends that the Board could have superceded the court’s order and refused to grant Coleman a license, despite having been ordered to do so. From this, Coleman argues: “Since the Board granted Glenn’s license after perfecting its appeal, it may not now revoke the license without a new accusation of culpability.” (emphasis in original). We disagree.

¶ 37. First, our reversal and rendering of the circuit court’s decision negates the order of the court requiring the Board to issue a license to Coleman. Second, Mississippi Code Annotated section 73-11-57(l)(b) clearly states that the Board may revoke a license upon “[t]he erroneous issuance of a license to any person....” Coleman argues that this section requires a finding as to the guilt of the licensee. However, Coleman is guilty of receiving an erroneously-issued license, since the Board’s decision to refuse his license was proper and should not have been reversed by the circuit court. Coleman’s contentions that the Board cannot now revoke his license are without merit.

¶ 38. In summary, we find that the circuit court erred in substituting its own judgment for that of the Board and in improperly reweighing facts. Under the Mississippi standard of judicial review of an agency’s decision, the Board’s decision clearly should have been upheld. The circuit court erred in holding otherwise.

¶ 39. THE JUDGMENT OF THE LAFAYETTE COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . Applicants for a funeral service license are required to complete twelve months of training at a Mississippi-licensed facility as a prerequisite to licensure. Miss.Code Ann. § 73-11 — 51 (4)(d) (Rev.2004).

      . In its summary of the issues, the Board listed three issues: (1) whether the court erred in reversing the decision of the Board, (2) whether the court erred in substituting its judgment for the Board’s, and (3) whether the court erred in not giving deference to the decision of the Board in interpreting statutes that it has been assigned control over. However, the Board never addressed the second and third issues in its brief. Additionally, since we find error on the basis of the first issue, it is unnecessary for us to address the second and third issues.


author: ISHEE, J.,

text:
    Dwight BROWN a/k/a Dwight Douglas Brown, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-CP-00417-COA.
    Court of Appeals of Mississippi.
    May 30, 2006.
    Rehearing Denied Aug. 29, 2006.
    Certiorari Denied Dec. 14, 2006.

      Dwight Brown (pro se), attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Dwight Brown was indicted on a charge of capital murder, pled guilty to manslaughter, and was sentenced to serve twenty years imprisonment in the custody of the Mississippi Department of Corrections (“MDOC”). Brown subsequently filed a motion for post-conviction relief (“PCR”), which was denied. Aggrieved, Brown appeals. Finding no error, we affirm.

FACTS

¶ 2. Brown was charged with capital murder for the murder of Robert Bank-ford, a public official. Brown entered a guilty plea to the lesser offense of manslaughter and was sentenced by the trial court to twenty years imprisonment in the custody of the MDOC. Brown now appeals, pro se, asserting that: (1) the trial court erred by failing to find that his guilty plea was involuntary; (2) the trial court’s failure to address all issues raised by Brown’s PCR motion requires reversal; (3) he received ineffective assistance of counsel; (4) the trial court erred in failing to grant an evidentiary hearing before denying Brown’s PCR motion.

STANDARD OF REVIEW

¶ 3. We will reverse a trial court’s decision to deny post-conviction relief only where the decision was clearly erroneous. Kirksey v. State, 728 So.2d 565, 567(¶ 8) (Miss.1999) (citing State v. Tokman, 564 So.2d 1339, 1341 (Miss.1990)).

ISSUES AND ANALYSIS

I. Whether the trial court erred by failing to find Brown’s guilty plea involuntary.

¶4. Brown’s grounds for arguing that his guilty plea was involuntary are that (a) the trial court failed to find a factual basis for the plea, and it was therefore involuntary as a matter of law, and (b) his guilty plea was a product of coercion because his attorney withheld crucial information from him concerning the foundation for the capital murder charge under the indictment.

¶ 5. A guilty plea is not binding upon the accused unless made knowingly and voluntarily. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992) (citing Myers v. State, 583 So.2d 174, 177 (Miss.1991)). If the accused is made aware of the nature of the charges against him and the consequences of the plea, then the plea is deemed “knowing and voluntary.” Alexander, 605 So.2d at 1172 (citing Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991)). The trial judge must “ ‘inquire and determine’ that the accused understands the maximum and minimum penalties to which he may be sentenced.” Alexander, 605 So.2d at 1172. To require reversal on the grounds of an involuntary guilty plea, Brown must prove by a preponderance of the evidence that his plea was involuntary. Dearman v. State, 910 So.2d 708, 711(¶ 8) (Miss.Ct.App.2005) (citing Brown v. State, 876 So.2d 422, 423(¶4) (Miss.Ct.App.2004); McClendon v. State, 539 So.2d 1375, 1377 (Miss.1989)). Brown must provide record support for his allegations of fact. Dearman, 910 So.2d at 711(¶ 8) (citations omitted).

¶ 6. In the case sub judice, Brown received a copy of the indictment enumerating the elements of the crime with which he was charged. He further signed a plea petition stating that he was not promised anything, coerced or induced into entering a guilty plea, and that he understood all matters set forth in the petition. The petition additionally stated that he offered his guilty plea freely and voluntarily.

¶ 7. In addition, much of Brown’s argument revolves around the fact that the wrong subsection letter of Mississippi Code Annotated Section 97-3-19(2) (Rev. 2000) was cited in the indictment. The indictment charged Brown as follows:

THE GRAND JURORS of the State of Mississippi, taken from the body of good and lawful men and women of Hum-phreys County, Mississippi, being duly selected, empaneled, sworn and charged in the Circuit Court of Humphreys County, Mississippi, upon their oaths, present that: DWIGHT DOUGLAS BROWN, did, on or about the 06th day of March, 1999, in the Humphreys County, Mississippi, unlawfully, willfully, felo-niously, and without authority of law, kill and murder Robert Bankhead, a human being, and an elected official of Hum-phreys County, Mississippi, to-wit: Supervisor of Humphreys County, Mississippi, the said DWIGHT DOUGLAS BROWN, then and there knowing that said Robert Bankhead was such public official, in violation of Section 97-3-19(2)(g) of Mississippi Code of 1972, as amended against the peace and dignity of the State of Mississippi.

Brown argues that Section 97-3-19(2)(g) requires the murder to be committed on educational property, which the facts do not support in his situation. Thus, he argues, there was no factual basis for his guilty plea, as the State could not have proven the charge against him. He bases his argument as to coercion by his attorney on the same grounds, i.e., that he pled guilty under coercion because his attorney told him he could get the death penalty, but failed to mention to him the element of educational property.

¶ 8. It is clear from the indictment that the State actually charged Brown with capital murder under Mississippi Code Annotated Section 97-3-19(2)(h) (Rev.2000), which makes murder of an elected official a capital offense. Section 97-3-19(2)(h) (Rev.2000) states: “Murder which is perpetrated by the killing of any elected official of a county, municipal, state or federal government with knowledge that the victim was a public official [constitutes capital murder].” The clerical error committed by the State in mistakenly listing the subsection letter “(g)” rather than “(h)” in the indictment does not warrant reversal, as the elements of the offense with which Brown was actually charged are clearly enumerated in the indictment. The primary purpose of an indictment is to notify an accused of the charges against him in order to allow him to prepare an adequate defense. Evans v. State, 916 So.2d 550, 551(¶ 5) (Miss.Ct.App. 2005) (citing Lewis v. State, 897 So.2d 994, 996(¶ 9) (Miss.Ct.App.2004)). This simply means that an indictment must provide the accused with “a concise and clear statement of the elements of the crime” with which the accused is actually charged. Evans, 916 So.2d at 551-52(¶ 5) (citing Williams v. State, 445 So.2d 798, 804 (Miss.1984)). “[T]he incorrect citation of a statute number does not alone render an indictment defective, but rather is ‘mere surplusage’ and not prejudicial to a defendant.” Evans, 916 So.2d at 552(¶ 6) (citing White v. State, 169 Miss. 332, 332, 153 So. 387, 388 (1934)).

¶ 9. Because of the above reasoning, this assignment of error is without merit. Brown has presented us with insufficient evidence to prove that his guilty plea was involuntary. We therefore see no clear error, and affirm the trial court’s denial of Brown’s motion for PCR with regard to this issue.

II. Whether the trial court’s failure to address all issues raised by Brown’s PCR motion requires reversal.

¶ 10. Brown next argues that the trial court’s denial of his motion for PCR should be reversed because the trial court failed to address the issue of whether his sentence of twenty years was excessive for a first-time offender. This issue is plainly without merit, as it is within the trial court’s absolute discretion to impose any sentence within the bounds allowed by statute. See Johnson v. State, 904 So.2d 162, 170(¶ 25) (Miss.2005). The manslaughter statute allows sentences of up to twenty years. Miss.Code Ann. § 97-3-25 (Rev.2000). Brown was sentenced to twenty years. Because Brown’s claim as to this issue was so completely meritless upon its face, we see no clear error in the trial court’s failure to address it directly.

III. Whether Brown received ineffective assistance of counsel.

¶ 11. Mississippi has adopted the test for ineffective assistance of counsel announced by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Alexander v. State, 605 So.2d 1170, 1173 (Miss.1992). Strickland requires the defendant to prove that, considering the totality of the circumstances, (1) trial counsel’s performance was deficient, and (2) defendant was prejudiced as a result. Colenburg, 735 So.2d at 1103(¶ 9). “The defendant must show that but for his attorney’s errors, there is a reasonable probability that he would have received a different result in the trial court.” Id. “A strong but rebuttable presumption, that counsel’s performance falls within the wide range of reasonable professional assistance, exists.” Id. “Scrutiny of counsel’s performance by this Court must be deferential.” Id.; see also Ahmad v. State, 603 So.2d 843, 848 (Miss.1992) (discussing scope of review on appeal for counsel’s performance).

¶ 12. Again, Brown bases his main argument on his attorney’s “fail[ure] to advise ... Brown that the prosecution could not legally obtain a death sentence under the indictment where the element of ‘commission of murder on educational property’ was not present.” As discussed above, this argument is clearly without merit, as the indictment clearly informed Brown of the elements of the crime with which he was charged.

¶ 13. Brown’s next arguments as to his attorney’s ineffectiveness are that (a) his attorney never sought to interview defense witnesses in preparation for the actual trial, and (b) his attorney did not provide him with all relevant information regarding the minimum penalty for manslaughter.

¶ 14. As to the first argument, Brown points us to nothing indicating that trial counsel’s decision not to interview defense witnesses was not a valid legal strategy. Brown argues that the witnesses would have testified that the victim was “well known in the community as a child molester,” thus providing mitigating circumstances creating reasonable doubt for a jury. This bare allegation does not persuade this Court that counsel’s performance was deficient in this case, nor does it prove that Brown was prejudiced as a result of such decision by his trial counsel.

¶ 15. As to the second argument, Brown acknowledged that the judge advised him she could impose a minimum sentence of two years at his plea colloquy. Brown’s arguments as to the ineffectiveness of his trial counsel are thus without merit.

IV. Whether the trial court erred in failing to grant an evidentiary hearing before denying Brown’s PCR motion.

¶ 16. Mississippi Code Annotated Section 99-39-11(2) (Rev.2000) states: “If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified.” This assignment of error is without merit.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF HUMPHREYS COUNTY OF DENIAL OF POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HUMPHREYS COUNTY.

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


author: CHANDLER, J.,

text:
    James A. BARKSDALE, Individually and on Behalf of the Wrongful Death Beneficiaries of Lisa Renee Barksdale, Deceased, Appellant, v. David CARROLL, M.D., Appellee.
    No. 2004-CA-01859-COA.
    Court of Appeals of Mississippi.
    Aug. 29, 2006.
    Certiorari Denied Dec. 7, 2006.

      Alben N. Hopkins, Gulfport, attorney for appellant.
    R. Mark Hodges, Jackson, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

CHANDLER, J.,

for the Court.

¶ 1. The appellant’s motion for rehearing is denied. The original opinion issued in this case is withdrawn, and the following opinion is substituted therefor.

¶ 2. On February 26, 2000, Lisa Renee Barksdale was involved in an automobile accident and was taken to the University of Mississippi Medical Center (UMMC). Lisa Barksdale received treatment and was admitted for observation. On February 27, 2000, she died. Lisa Barksdale’s husband, James A. Barksdale, brought suit individually and on behalf of the wrongful death beneficiaries against UMMC and numerous physicians. Barksdale settled with UMMC under the Mississippi Torts Claims Act (MTCA).

¶ 3. This action arises out of a second amended complaint against Dr. David Carroll which alleged causes of action for malpractice, negligence and medical negligence, res ipsa loquitur, and failure to obtain informed consent. Dr. Carroll filed a motion for summary judgment arguing that he was an employee of the state and, therefore, should be immune from liability under the MTCA. On July 16, 2004, the trial court granted summary judgment in favor of Dr. Carroll. Barksdale appeals.

¶ 4. Finding no error, we affirm.

FACTS

¶ 5. In 1998, Dr. Carroll and his wife, Dr. Gina Heath, relocated to Mississippi and formed their own private practice, Surgical Specialists of Jackson. In the course of Dr. Carroll’s relocation,- the Department of Surgery at UMMC asked him to serve as an attending faculty member. Soon thereafter, UMMC replaced the person serving as chairman of the Department of Surgery. Consequently, the administration asked Dr. Carroll if he would temporarily serve in his faculty role without compensation until the new chairman established policies and procedures for the faculty members. Dr. Carroll agreed to temporarily serve without compensation because he received income from his separate private practice outside of UMMC.

¶ 6. On January 19, 1999, UMMC appointed Dr. Carroll effective February 18, 1999, as a Clinical Assistant Professor of Surgery. The position was non-salaried. On May 10, 1999, the Board approved Dr. Carroll’s appointment as a non-salaried faculty member with the title of Clinical Assistant Professor of Surgery and Attending Physician. On February 10, 2000, UMMC appointed Dr. Carroll effective March 31, 2000, as a Clinical Assistant Professor of Surgery and Attending Physician. This was a part-time salaried position. When Dr. Carroll became a salaried faculty member, he became a member of the departmental practice plan. Prior to that time, Dr. Carroll was not a member of the departmental practice plan.

¶ 7. Although Dr. Carroll’s title changed during his time as a non-salaried faculty member, he maintained the same faculty member duties. Dr. Carroll’s role as a faculty member involved occasional lectures to the residents as well as faculty consultation. The duty of faculty consultation required Dr. Carroll occasionally to be on call to consult with the residents on duty who provided care to the patients of UMMC. During the time that Dr. Carroll was on call, he acted as an attending physician and could not be on call at any other hospital. Every patient at UMMC is assigned an attending physician if the patient is seen by the Department of Surgery. The attending physician must be a member of the faculty at UMMC. Dr. Carroll did not bill patients or receive any compensation for faculty consultation. Thus, on February 26, 2000, Dr. Carroll both had a private practice and served as an uncompensated faculty member at UMMC with the title of Clinical Assistant Professor of Surgery and Attending Physician. He was not a member of a departmental practice plan.

¶ 8. On the evening of February 26, 2000, Dr. Carroll was on call as the attending physician of the Surgical Residency Program. Dr. Saied Habibipour, a senior surgical resident and a licensed medical doctor, was informed that Lisa Barksdale was en route to UMMC for injuries she had sustained in an automobile accident. Dr. Habibipour phoned Dr. Carroll at his home and told Dr. Carroll that a potentially critical patient was en route to the hospital. As Dr. Carroll was preparing to leave for the hospital, Dr. Habibipour called him again to communicate that he did not need to come to the hospital. Dr. Habibipour informed Dr. Carroll that the patient was stable and that further tests were being performed. Dr. Carroll concurred with Dr. Habibipour’s diagnosis. Dr. Habibipour called Dr. Carroll later that evening to discuss the test results. The results showed no internal injuries or other abnormalities. Dr. Carroll concurred with Dr. Habibipour’s plan to admit Lisa Barksdale for a twenty-three hour observation period. Dr. Carroll did not hear any further information until the next day, when he was no longer on call. Another resident called Dr. Carroll and informed him that Lisa Barksdale had died as a result of lacerations of the liver and of the mesentery and hemoperitoneum.

¶ 9. Dr. Carroll never went to the hospital to treat Lisa Barksdale. He did not personally review her medical chart or any of her medical tests. Dr. Carroll did not bill Lisa Barksdale for any services because he never personally treated her. Had Dr. Carroll performed services for Lisa Barksdale, he would have billed through his office and not through the departmental practice plan.

STANDARD OF REVIEW

¶ 10. “A grant of summary judgment is reviewed de novo.” Conley v. Warren, 797 So.2d 881, 882 (Miss.2001). There must exist no genuine issues of material fact, and the moving party must be entitled to judgment as a matter of law. M.R.C.P. 56(c). The party requesting summary judgment bears the burden of demonstrating that there is no genuine issue of material fact. Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 63-64 (Miss.1988). The trial court’s grant of summary judgment will be reversed if any genuine triable issues of fact exist. Brown v. Cred it Ctr., Inc., 444 So.2d 358, 362 (Miss.1983). Otherwise, the decision will be affirmed. Id.

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT WHEN IT FOUND THAT THERE WAS NO GENUINE ISSUE OF MATERIAL FACT AS TO THE EMPLOYMENT STATUS OF DR. DAVID CARROLL.

¶ 11. The MTCA “provides the exclusive civil remedy against a governmental entity or its employee for acts or omissions which give rise to a suit.” L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1138(¶11) (Miss.1999); Miss. Code Ann. § 11-46-7(1) (Rev.2002). “Any tort claim filed against a government entity or its employee shall be brought only under the MTCA.” Id. “The MTCA waives sovereign immunity from claims for money damages arising out of the torts of governmental entities and their employees.” Id. Additionally, “no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee’s duties.” Miss.Code Ann. § 11-46-7(2) (Rev.2002). This Court must determine whether, on the evening of February 26, 2000, Dr. Carroll was acting as an employee or as an independent contractor. The employee/independent contractor distinction is vital because, as an employee, Dr. Carroll would enjoy the immunity afforded by the MTCA in his individual capacity, but as an independent contractor, he would not. Watts v. Tsang, 828 So.2d 785, 791(¶ 18) (Miss.2002).

¶ 12. Barksdale argues that Dr. Carroll was an independent contractor and could be sued in his individual capacity. Barksdale argues that Dr. Carroll was not an employee because Dr. Carroll did not receive compensation from UMMC and was not a member of a departmental practice plan. We disagree. Mississippi Code Annotated section 11 — 46—1(f) (Rev.2002) provides, in pertinent part, that an employee is “any officer, employee or servant of the State of Mississippi or a political subdivision of the state, including elected or appointed officials and persons acting on behalf of the state or a political subdivision in any official capacity, temporarily or permanently, in the service of the state or a political subdivision whether with or without compensation.” Under the plain language of the statute, compensation is not a necessary component of employee status.

¶ 13. Further, a physician’s participation or non-participation in a departmental practice plan is not fully dispositive of the physician’s employment status. Neither section ll-46-l(f) nor our precedent applying the statute has required a physician to be a member of a departmental practice plan in order to be considered a state employee. A holding that a physician must be a member of a departmental practice plan in order to be considered a state employee would be inconsistent with the statute’s inclusion of uncompensated officers, employees, or servants of the state in the statutory definition of employee. “Medical practice plans are organized groups of physicians with medical school faculty appointments who, in addition to research and medical education responsibilities, provide patient care services to both insured and uninsured patients.” Mozingo v. Scharf, 828 So.2d 1246, 1254(¶ 23) (Miss.2002). In Mozingo, the court stated that the departmental practice plans are “created to facilitate billing and collection of physician fees.” Id. The supreme court has stated that “[t]he Board of Trustees, which has authority over this state’s teaching hospital, has mandated an employment plan for its faculty which includes a base salary, supplemented by money received at the teaching hospital for clinical and outpatient services.” Watts, 828 So.2d at 793(¶ 24). “The supplemental income is administered by UMMC’s medical practice plans.” Id. This authority indicates that the departmental practice plans are mechanisms for billing and collecting physician fees. An uncompensated physician like Dr. Carroll would have no reason to be a member of a departmental practice plan. Section ll-46-l(f) specifically includes uncompensated officers, employees, or servants of the state in the definition of employee. Therefore, we find that membership in a departmental practice plan is not required for a UMMC physician to have state employee status under section 11 — 46—1(f).

¶ 14. We briefly address Barks-dale’s argument that the amended version of section 11 — 46—1(f) applies to the instant case. Mississippi Code Annotated section 11-46 — 1(f) was amended in 2002. The 2002 amendment left the prior statutory language intact, but added to the definition of employee. The new language states, “[t]he term employee shall also include any physician, dentist or other health care practitioner employed by the University of Mississippi Medical Center (UMMC) and its departmental practice plans who is a faculty member and provides health care services only for patients at UMMC or its affiliated practice sites.” Barksdale contends that, because the amended statute specifically includes as state employees those UMMC physicians who are members of the departmental practice plans (among other requirements), the statute necessarily excludes from employee status any physician who is not a member of the departmental practice plans.

¶ 15. Barksdale did not raise this argument before the trial court. The alleged negligence at issue in this case occurred on February 26, 2000. This action was commenced on December 20, 2000. The 2002 amendment was effective from and after January 1, 2003. Miss.Code Ann. § 11-46 — 1(f) (Supp.2005). Barksdale’s authorities for the retroactive application of the amended statute are cases standing for the proposition that, when a statutory amendment affects only the mode of procedure, and not the substantive rights of the parties, it will be applied retroactively in pending cases. City of Clarksdale v. Miss. Power and Light Co., 556 So.2d 1056, 1057 (Miss.1990). As illustrated by Barksdale’s own argument, the amended section 11-46 — 1 (f) does not prescribe a new mode of procedure, but functions substantively. We find that the law applicable to this case was the prior version of section 11 — 46—1(f). Therefore, we do not reach the merits of Barksdale’s argument requesting our interpretation of the amended statute.

¶ 16. Having found that neither compensation nor membership in a departmental practice plan is a requisite for a UMMC physician to be a state employee under section 11-46-1(0, we proceed to determine whether Dr. Carroll was a state employee or an independent contractor at the time of the alleged negligence. This Court has applied the five-factor balancing test from Miller v. Meeks, 762 So.2d 302 (Miss.2000), to determine employment status in cases where the UMMC physician was not indisputably a state employee. Watts, 828 So.2d at 797(¶ 42) (citing Knight v. McKee, 781 So.2d 121, 122 (Miss. 2001)). In Knight, the supreme court found it unnecessary to apply the Miller test because it was indisputable that two UMMC faculty physicians were not independent contractors. Knight, 781 So.2d at 123(¶ 5). This was because they received no income for the practice of medicine from sources other than their faculty appointments at UMMC. In other words, it was readily apparent from the physicians’ exclusive employment as UMMC faculty members that each physician did not “wear two hats,” one as an employee of UMMC and one as a physician engaged in a separate private practice. See Brown v. Warren, 858 So.2d 168, 173(¶ 13) (Miss.Ct.App.2003).

¶ 17. In the instant case, Dr. Carroll was working for UMMC without compensation on a part-time basis and also received income from his private practice. Therefore, we apply the Miller factors to determine Dr. Carroll’s status. We find that the factors strongly weigh in favor of Dr. Carroll’s status as a state employee. Therefore, we find that Dr. Carroll was personally immune from suit for his acts or omissions concerning Lisa Barksdale’s death.

¶ 18. The Miller factors include: (1) the nature of the function performed by the employee; (2) the extent of the state’s interest and involvement in the function; (3) the degree of control and direction exercised by the state over the employee; (4) whether the act complained of involved the use of judgment or discretion; and (5) whether the physician received compensation, either directly or indirectly, from the patient for the professional services rendered. Miller, 762 So.2d at 310(¶ 20).

1. The nature of the function performed by the employee

¶ 19. In Sullivan v. Washington, 768 So.2d 881, 884-85 (Miss.2000), the supreme court held that an attending physician who supervised a tubal ligation performed by UMMC residents was a state employee. The patient did not choose the physician; rather, the physician was assigned to the patient as part of the physician’s duties as a UMMC faculty member. The court found that the physician “was acting in his capacity as a supervisor and did not have a private relationship with the patient.” Id. at 884 — 85(¶ 18). In Corey v. Skelton, 834 So.2d 681, 685(¶ 10) (Miss.2003), the court found that an on-call, attending physician’s role was “to supervise the overall care of Lewis and all other admitted patients and to teach and advise the residents and interns.” In both cases, the nature of the function factor weighed in favor of employee status.

¶ 20. Likewise, in this case, Dr. Carroll acted in a supervisory role regarding Dr. Habibipour’s treatment of Lisa Barksdale. Dr. Carroll was contacted by Dr. Habibip-our to provide consultation for Lisa Barks-dale’s condition. Dr. Carroll was the attending physician the night that Lisa Barksdale was admitted to UMMC. Dr. Carroll did not choose his patients or the residents that he supervised. Dr. Carroll did not have a private patient relationship with Lisa Barksdale. Rather, Dr. Carroll, in his role as a UMMC faculty member and attending physician, supervised and consulted with Dr. Habibipour. Dr. Carroll’s function in Barksdale’s care in no way involved his private medical practice. We find that this factor weighs in favor of Dr. Carroll’s status as a state employee.

2. The extent of the state’s interest and involvement in the function

¶ 21. Concerning the attending faculty physician in Corey, the court stated:

The role of the faculty physician is to supervise the progress of residents and interns, provide the necessary training and to maintain a practical and educational environment. This Court has held that the state has a compelling interest in maintaining such an educational environment provided by Dr. Skelton and all its teaching physicians.

Id. at 685(¶ 11) (citing Sullivan, 768 So.2d at 885). In Sullivan, the court emphasized the importance of residents receiving training from faculty physicians in order to master their profession. Sullivan, 768 So.2d at 885(¶ 19). “The State has a strong interest in maintaining such a practical and educational environment, meeting the needs of both the physicians and the patients.” Id.

¶22. We find that the State had a strong interest and involvement in Dr. Carroll’s function as an attending faculty physician.

3. The degree of control and direction exercised by the state over the employee

¶ 23. The fact that “[t]he State had the right to direct the details and manner of [the physician’s] work schedule” is indicative of the physician’s employee status. Clayton v. Harkey, 826 So.2d 1283, 1286(¶ 13) (Miss.2002). UMMC mandates the schedules of the faculty physicians who are on call. Dr. Carroll was a faculty physician assigned to be on call the night that Lisa Barksdale was admitted to UMMC. UMMC required Dr. Carroll to provide supervisory instruction to the surgical residents that night. And, Dr. Carroll did not choose Lisa Barksdale as a patient, but was assigned to supervise Dr. Habibipour’s treatment of Lisa Barksdale as part of his job as attending physician. See Mozingo, 828 So.2d at 1252(¶ 17). Nor could Dr. Carroll “choose or limit the doctors with whom he worked.” Id. And, UMMC did not allow Dr. Carroll to be on call with any other hospitals while he was on call with UMMC. For these reasons, we find that UMMC exercised significant control and direction over Dr. Carroll on February 26, 2000.

A Whether the act complained of involved the use of judgment and discretion

¶ 24. The use of judgment or discretion, alone, is not determinative of employee status. Corey, 834 So.2d at 685(¶13). “Obviously a professional necessarily retains a significant amount of discretion in the operation of his profession.” Sullivan, 768 So.2d at 885(¶ 22). “This is especially true of physicians who are bound to exercise their judgment without interference from others.” Id. The Sullivan court held that the attending physician’s supervisory acts involved little judgment or discretion. Id. The court found that the attending physician had “played a very small role in [the patient’s] surgery, diagnosis and treatment.” Id.

¶ 25. Like the physician in Sullivan, Dr. Carroll played a small role with regard to Lisa Barksdale. Dr. Habibipour called Dr. Carroll to discuss Lisa Barksdale’s condition twice during the evening of February 26, 2000. Dr. Habibipour gave Dr. Carroll his diagnosis and the results of the tests. Dr. Carroll reviewed Dr. Habibip-our’s suggestions and concurred that Lisa Barksdale should be put on twenty-three hour observation. The two telephone conversations were within Dr. Carroll’s supervisory capacity and involved little judgment or discretion. Therefore, this factor weighs in favor of Dr. Carroll’s status as a state employee.

5. Whether the physician receives compensation, either directly or indirectly, from the patient or for professional services rendered

¶ 26. Dr. Carroll did not bill Lisa Barksdale or receive any compensation from Lisa Barksdale for professional services rendered. When Dr. Carroll treated Lisa Barksdale, he was acting as an uncompensated faculty member of UMMC. Barksdale points out that Dr. Carroll would have billed Lisa Barksdale from his private practice if he had gone to the hospital and performed a procedure on Lisa Barksdale. Dr. Carroll was not a member of a departmental practice plan and would not have billed Lisa Barksdale through such a plan.

¶ 27. Under the specific facts presented, we find that this factor does not weigh in favor of independent contractor status. While Dr. Carroll would have billed Lisa Barksdale privately had he rendered any treatment to her, that is not what occurred in this case. In this case, Dr. Carroll assumed a supervisory role in Lisa Barks-dale’s care entirely without remuneration. That supervisory role was part of his job as an uncompensated faculty member of UMMC.

¶ 28. After weighing the Miller factors, we find that Dr. Carroll was acting as an employee of UMMC and not as an independent contractor during his consultation in the treatment of Lisa Barksdale.

CONCLUSION

¶ 29. After a review of Mississippi Code Annotated section 11^6-l(f) and the Miller factors, this Court finds that Dr. Carroll was an employee of UMMC and the state for the purposes of liability under the MTCA. The summary judgment granted by the trial court is affirmed.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: KING, C.J., GRIFFIS, J.,

text:
    Thaddous RAINER a/k/a Bennie Thompson a/k/a Thaddous Erantag Rainer, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-KA-01868-COA.
    Court of Appeals of Mississippi.
    Nov. 28, 2006.

      Julie Ann Epps, Samuel H. Wilkins, Canton, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   OPINION ON MOTION FOR REHEARING

KING, C.J.,

for the Court.

¶ 1. The motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted in lieu thereof. After a bench trial, Thaddous Rainer was convicted of possession of more than thirty grams of cocaine and was sentenced to fifteen years in the custody of the Mississippi Department of Corrections, with eight years suspended, seven years to serve and three years of post-release supervision. On appeal, he challenges the trial court’s denial of his motion to suppress evidence taken as the result of an unconstitutional search and seizure. Finding that the trial court abused its discretion in denying Rainer’s motion to suppress, we reverse and remand Rainer’s conviction.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. During the early part of September 2002, the narcotics division of the Hinds County Sheriffs Department received several complaints about illegal narcotics activities taking place around the Capitol Street area in the City of Jackson, Mississippi. On September 9, 2002, Investigator R.W. Spooner was patrolling the area of Capitol Street when he observed several individuals standing in the parking lot of a gas station located at 612 Capitol Street. In an effort to investigate the situation, Spooner entered the parking lot and pulled up next to a vehicle that was parked at a gas pump. Thaddous Rainer was at the wheel of the vehicle parked at the pump. Spooner then exited his car and identified himself as a police officer. According to Investigator Spooner, Rainer then “began to back out of the parking lot in an effort to flee.” Rainer’s progress was stymied when Captain Frank Bell maneuvered his car to block Rainer from exiting the parking lot. Upon blocking Rainer’s exit, Bell ordered Rainer to step out of the car. Rainer then exited the car and threw several bags under his vehicle. The officers secured Rainer, retrieved the bags — which were later found to contain cocaine and marijuana — and placed Rainer under arrest for possession of cocaine and possession of marijuana less than one ounce.

¶ 3. At trial on the cocaine charge, Rain-er moved to suppress the cocaine on the ground that it was seized as the result of an unreasonable search and seizure of his person under both the Fourth Amendment of the United States Constitution and under Article 3, Section 23 of the Mississippi Constitution of 1890. Rainer claimed that the officers had neither probable cause nor reasonable suspicion for the stop. Citing the United States Supreme Court case of Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) the trial court denied Rainer’s motion, ruling that Rainer’s attempt to leave the scene in a high crime area gave the police reasonable suspicion to detain him temporarily. Upon receiving this ruling, Rainer waived his right to a jury trial, and a bench trial proceeded. No testimony was adduced at trial, and the only evidence before the court was Investigator Spooner’s typewritten report setting forth the details of the stop, and a report from the Mississippi Crime Laboratory identifying the seized substances. The trial judge convicted Rainer of possession of cocaine greater than thirty grams, and sentenced him to a term of fifteen years in the custody of the Mississippi Department of Corrections, with eight years suspended, seven years to serve and three years of supervised probation.

¶ 4. Aggrieved, Rainer filed a timely appeal to this Court, asserting that the trial court erred in denying his motion to suppress. Finding that the trial court erred in its determination that the officers had reasonable suspicion meriting an investigatory stop, we reverse and remand.

STANDARD OF REVIEW

¶ 5. Our well-settled standard of review for the admission or suppression of evidence is abuse of discretion. Mississippi Transp. Comm’n v. McLemore, 863 So.2d 31, 34(¶ 4) (Miss.2003). “Under this standard, this Court will affirm unless there is a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.” Caracci v. Int’l Paper Co., 699 So.2d 546, 556(¶ 16) (Miss.1997).

ISSUE AND ANALYSIS

WHETHER THE TRIAL COURT ERRED IN DENYING RAINER’S MOTION TO SUPPRESS

¶ 6. The Fourth Amendment to the United States Constitution and Article 3, Section 23 of the Mississippi Constitution of 1890 prohibit unreasonable searches and seizures made without probable cause, except under certain limited exceptions. See United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Walker v. State, 881 So.2d 820, 827(¶ 14) (Miss.2004). In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court held that an officer may, consistent with the Fourth Amendment, make a brief, investigatory detention without a warrant when the officer has a reasonable suspicion that criminal activity is afoot. Id. at 30-31, 88 S.Ct. 1868. While the “reasonable suspicion” standard is less demanding than probable cause, the Fourth Amendment still requires a minimal level of justification for making the stop. Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)). Still, an officer who makes such a stop “must be able to point to specific and articulable facts” that justify the intrusion. Terry, 392 U.S. at 21, 88 S.Ct. 1868. In fact, “The officer must be able to articulate more than an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal activity” in order to justify a Terry stop. Wardlow, 528 U.S. at 123-24, 120 S.Ct. 673 (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868). Furthermore, the reasonableness of official suspicion must be measured by what the officers knew before they initiated the search. Florida v. J. L., 529 U.S. 266, 271, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). Absent reasonable suspicion warranting such a stop, the individual approached by authorities has the right “to ignore the police and go about his business.” Wardlow, 528 U.S. at 125, 120 S.Ct. 673. Furthermore, any “refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.” Id. (quoting Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)).

¶ 7. In the case at bar, the State contends that the officers in this case had reasonable suspicion to detain Rainer temporarily because he purportedly attempted to flee the scene when approached by police operating in what they believed to be a “high crime area.” Had there been credible evidence before the trial judge that Rainer had in fact entered into unprovoked flight upon seeing the police, this Court would have upheld the stop under the United States Supreme Court case of Wardlow. In Wardlow, the United States Supreme Court held that it is permissible for courts and police to infer wrongdoing from the fact of unprovoked flight, thus justifying a Terry stop. Wardlow, 528 U.S. at 124, 120 S.Ct. 673 (“Headlong flight-wherever it occurs-is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such”).

¶ 8. In this case, however, there was no direct evidence that Rainer actually fled from the police. In his report, Spooner stated that when he exited his car and identified himself as an officer, Rainer “began to back out of the parking lot in an effort to flee.” This bare, uncorroborated assertion is not supported by any facts submitted by the State. Spooner’s report makes no mention of any facts that support the conclusion that Rainer entered into unprovoked flight at the sight of the police. For example, there is no evidence of the speed at which Rainer attempted to exit the parking lot, nor is there evidence that Rainer drove erratically upon trying to leave. Notably, the lack of evidence of flight compelled the trial court to mention that “[i]t may very well have been that [Rainer] was leaving the gas pump simply because he was through getting his gas and had paid for it.” Accordingly, in the absence of more detail, we are not prepared to affirm a finding of flight.

¶ 9. We find that the trial court abused its discretion by applying Wardlow in an instance where there was no evidence of unprovoked flight. As the officers in this case did not have reasonable suspicion to detain Rainer, the evidence against him should have been suppressed as the fruit of an unconstitutional search and seizure. See Jackson v. State, 418 So.2d 827, 829 (Miss.1982); Bessent v. State, 808 So.2d 979, 983(¶ 12) (Miss.Ct.App.2001).

¶ 10. Finding that the trial court erred in failing to grant Rainer’s motion to suppress, we reverse and remand this cause for further proceedings consistent with this opinion.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE, P.J., CHANDLER, BARNES AND ISHEE, JJ., CONCUR. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MYERS, P.J. IRVING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. SOUTHWICKAND ROBERTS, JJ., NO, NOT PARTICIPATING.

GRIFFIS, J.,

DISSENTING:

¶ 12. The majority opinion relies on Wardlow to reverse Rainer’s conviction and finds there was not enough evidence to determine that Rainer attempted to flee. However, even if Rainer merely attempted to leave the gas station, upon seeing the first officer, Rainer voluntarily discarded several bags of marijuana and cocaine away from his vehicle upon seeing the second officer. This case more closely follows California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), than Wardlow. By abandoning the bags, Rainer lost any privacy right to them. Thus, I am of the opinion that the trial court properly admitted the bags into evidence, since no search and seizure violation involving the abandoned property occurred.

¶ 13. The question presented is whether the trial court properly admitted the evidence and not whether the officers illegally detained Rainer. The bags, i.e., the evidence, cannot be fruit of the poisonous tree since Rainer abandoned the property. Had Rainer kept the bags on his person or inside his vehicle, the officers would have been required to articulate their reasonable suspicion that Rainer attempted to flee from them on site.

¶ 14. In Williams v. State, 892 So.2d 272, 278(¶ 15) (Miss.Ct.App.2004), this Court ruled that Williams’s search was not an unreasonable search, as contemplated by the Fourth Amendment, because the evidence was not found on Williams’s person, and he could not claim to have had a reasonable expectation of privacy alongside a public road. While not a public road, as in Williams, a parking lot, equally open to the public, should receive the same treatment. This is derived from the premise that “one does not reasonably expect to keep private that which can be seen by the public.” Shook v. State, 552 So.2d 841, 847 (Miss.1989) (citing Katz v. U.S., 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). In Williams, we noted that the principle of abandonment was also pertinent:

[b]y discarding the aluminum foil package, before the police took him into custody, Williams abandoned [the property] and deprived himself of any right to privacy. See California v. Hodari D., 499 U.S. 621, 629, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); Harper v. State, 635 So.2d 864, 867 (Miss.1994); Bessent v. State, 808 So.2d 979, 985-86(¶20) (Miss. Ct.App.2001). Indeed, the facts of Ho-dari, in which the defendant abandoned the cocaine he possessed while fleeing from the police, uniquely fit the facts of the case before us. Williams abandoned the crack cocaine before the police took him into custody; it was not the fruit of an illegal seizure.

Williams, 892 So.2d at 278(¶ 15).

¶ 15. In Bessent v. State, 808 So.2d 979, 985(¶ 19) (Miss.Ct.App.2001), we found that “[o]ur supreme court followed the ruling of the U.S. Supreme Court in California v. Hodari [D.], 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), when it held that evidence seized after being abandoned by a suspect is not the fruit of an illegal seizure.” Instead, Bessent voluntarily abandoned the evidence. Id. at 985(¶ 20). This Court did not agree “with Bessent’s assertion that he was entitled to the protection of the law against unreasonable searches simply because he may have quickly abandoned the evidence on the mistaken belief that he could be compelled to produce it on the officer’s direction.” Id. at 985-86(¶ 20).

¶ 16. In Harper v. State, 635 So.2d 864, 865 (Miss.1994), the suspect threw down a rock of cocaine as he ran away from the police. Harper had not been placed under arrest at the time when he ran. Id. An officer picked it up, and it was admitted as evidence. Id. The court noted that for Mississippi an arrest is consummated when, “there has been a taking of possession of a person by manual caption, or submission on demand; and although a manual touching is unnecessary unless there is resistance to an arrest, there must be restraint of a person to establish an arrest.” Id. at 867 (quoting Jackson v. State, 335 So.2d 116, 118-19 (Miss.1976)). The court then held that “Harper was not seized or arrested when he discarded the drugs. Harper was not in any form or fashion restrained or stopped at the time he threw down the cocaine, and the cocaine, therefore, was abandoned and not the fruit of an unlawful seizure or arrest.” Id.

¶ 17. This case only slightly differs from Harper since the police car pulled behind Rainer after it appeared he was going to flee according to the on scene officers. Before the police arrested him or he completely submitted to the demand of the officers, Rainer, upon getting out of his vehicle, threw the bags under the vehicle. Since the search did not occur on his person or in his vehicle but instead occurred of items he discarded in a public place, there was no violation of Rainer’s Fourth Amendment rights.

¶ 18. I agree that the State did not present enough evidence to show that Rainer began unprovoked flight akin to that found in Wardloiv. From the evidence that the State put on, Rainer may have simply been leaving the gas pump after paying. However, Rainer discarded the items from his vehicle and thus gave away any privacy right in the property he abandoned. Rainer cannot claim that the officers searched or seized him by collecting the abandoned property and recognizing him as the source of that property.

¶ 19. For these reasons I respectfully dissent and would affirm the trial court.

MYERS, P.J., JOINS THIS OPINION.

      . While the fact that a temporary detention occurs in a high crime area is a relevant consideration in a Terry analysis, "[A]n individual's presence in the area of expected criminal activity, standing alone, is not enough to support a reasonable particularized suspicion that [a] person is committing a crime.” Wardlow, 528 U.S. at 124, 120 S.Ct. 673.