author: SOUTHWICK, J., for the Court.

text:
    Elizabeth M. FLEMING, Appellant, v. Brandy M. Thomas FLOYD, Appellee.
    No. 2005-CA-00042-COA.
    Court of Appeals of Mississippi.
    Oct. 3, 2006.
    Rehearing Denied May 8, 2007.

      Robert E. O’Dell, Pascagoula, attorney for appellant.
    H. Benjamin Mullen, Pascagoula, attorney for appellee.
    Before KING, C.J., SOUTHWICK and IRVING, JJ.
   SOUTHWICK, J., for the Court.

¶ 1. Elizabeth Fleming appeals from a judgment entered after a Jackson County Circuit Court jury found in favor of Brandy Floyd regarding fault in an automobile accident. Fleming contends that the trial court erred by allowing the accident report into evidence and in refusing to find liability as a matter of law. Though not accepting that the case should have been taken from the jury, we agree that the overwhelming weight of the evidence requires a new trial. We reverse and remand.

FACTS

¶ 2. Elizabeth Fleming and Brandy Floyd were involved in a car accident in the early afternoon of November 14, 1997, in Gautier, Mississippi. Fleming lived on the south side of Old Spanish Trail, which at that location is a two-lane road running from west to east. Fleming testified that while driving her vehicle forward, she stopped at the end of her driveway and looked both ways for oncoming traffic. The view of Old Spanish Trail to her left (westerly direction) was hindered by shrubbery and also by geography. To the left, the road curved slightly behind her and climbed. There was evidence that a vehicle approaching from the west cannot be seen until it is a distance of about two hundred feet from the end of the driveway. Fleming said she did not see any vehicles when she made one last look to the left and then drove out onto the street to cross over the eastbound lane and turned left to go to the west. There was some evidence that the point of impact was at about the moment that she completed her turn onto the westbound lane of Old Spanish Trail.

¶ 3. The oncoming driver, Floyd, testified that she saw Fleming stopped at the end of her driveway and looking away from Floyd to the east. Floyd said that she maintained her course, thinking Fleming had seen her and would remain stopped until she passed. Floyd testified that Fleming pulled onto the road without looking back her direction, causing Floyd to slam on her brakes. Floyd did not know what her speed was before she started to brake. The speed limit is thirty miles per hour in that location. A skid mark of about ninety-four feet was made by Floyd’s vehicle. The left front of Floyd’s vehicle struck the left side of Fleming’s.

¶ 4. At trial, Fleming called Jim Bowman as an expert in accident reconstruction. Bowman is a former police officer who had worked as a trial consultant for eighteen years. He testified that his investigation and subsequent calculations convinced him that Floyd was going at least forty-seven miles per hour when she began to skid and seventeen miles per hour at the point of impact. He determined that Fleming was traveling around four miles per hour at the time of impact. Bowman’s opinion was that because of the obstructions in the line of sight and the speed of each vehicle, Fleming could not have seen Floyd before Fleming exited her driveway. Floyd had no expert to refute these calculations.

¶ 5. Neither driver complained of serious, immediate injuries. Fleming alleged that the accident exacerbated existing carpal tunnel syndrome in her wrists, caused injuries to her feet, and re-aggravated a pre-existing back injury. She claimed medical expenses of approximately $7,500 and damage to her car totaling $3,000. Fleming was treated and released the day following the accident by her family physician. She later saw an orthopedist due to the pain in her arms, neck, and feet. The orthopedist had previously treated Fleming for a broken foot in an unrelated incident.

¶ 6. Following a two-day trial in November 2004, the jury returned a unanimous verdict in favor of the defendant Floyd. Fleming appeals.

DISCUSSION

1: Admissibility of opinion evidence in accident report

¶ 7. At the beginning of trial, several agreed exhibits were introduced into evidence. Among them was a form entitled “Mississippi Uniform Accident Report.” Some of the information on the form was easily understood, such as the names and basic information about the individuals involved and their vehicles. The largest blank space on the form was used by the officer to draw and label the driveway and the street; he did not draw the locations of the vehicles. In quite abbreviated fashion, a summary of each driver’s explanation of the incident was handwritten by the officer.

¶ 8. Those parts of the form are not contested here. The arguments center on blocks in which the investigator listed different details of the investigation by using a code. Nothing on the. exhibit indicated what information was to be put into each numbered block, or what the numbers used by the officer meant. To the average juror, this part of the document was unintelligible. A witness was allowed to explain, however. Whether he should have been allowed to do so is our first issue.

¶ 9. The accident report was prepared by Don Jones, a Gautier policeman who investigated the accident. There is no evidence that Jones was unavailable as a witness, but neither party called him. Testimony regarding the report came through Jim Bowman, the plaintiff Fleming’s accident reconstruction expert. Both on direct examination by the plaintiffs attorney and on cross-examination, Bowman testified about some of the coded information.

¶ 10. In his direct testimony, Bowman was asked to explain the methods he used to reach his conclusions. Bowman recounted his actions and analysis in several pages of transcribed testimony without being distracted by questions from the attorney. Bowman testified that on the accident report Jones had indicated that he believed the defendant Floyd’s brakes were defective. The only record of the conclusion about Floyd’s brakes was in one of the coded blocks on the form. Bowman believed Jones to be mistaken about the brakes. Bowman was of the opinion that Floyd’s excessive speed was the sole cause of the accident and no fault could be attributed to Fleming.

¶ 11. During his cross-examination of Bowman, counsel for the defendant Floyd asked Bowman about two other codes on the police report:

[Defense attorney]: And you also notice on [the accident report] the section where it says “contributing circumstances”?
[Bowman]: Right.
[Plaintiffs attorney]: I object, your hon- or.
[Defense attorney]: It’s already in, he’s testified about it.
BY THE COURT: Your objection based on?
[Plaintiffs attorney]: My objection, Your Honor, is with where he’s going with this. He’s trying to get opinion evidence of the police officer into evidence. It’s not admissible unless the police officer were here to sponsor it.
BY THE COURT: Well, that document has been admitted by stipulation. Overruled.

¶ 12. It appears that the trial court analyzed the issue as one of waiver due to the parties’ agreement to introduce the document. From the trial judge’s perspective, once a document was admitted without either side’s retaining an objection, anything on the document could be explained.

¶ 13. What was then explained by the expert was that the investigating police officer had used a numbered code in one block to indicate that the defendant Floyd had engaged in “no improper driving.” Equally importantly, the officer had through a coded entry indicated that as to the plaintiff Fleming there had been a “failure to yield right-of-way.”

¶ 14. At least two issues are presented by Fleming’s challenge to the admissibility of these conclusions by investigating policeman Jones, admitted over objection through the plaintiffs expert witness. One is whether both parties’ pre-trial agreement to admit this document would permit such testimony as was needed to decode its information. The second is whether the expert’s testimony on direct as to at least one of the codes waived any objection when the opposing counsel asked about other hidden information.

¶ 15. We examine the document generically. It was an official report prepared by the appropriate governmental authority on the event at issue in the litigation. The parties’ agreement removed authenticity issues. Such a document would have been admissible under an exception to the prohibitions on use of hearsay evidence. M.R.E. 803(8). The availability of the person preparing the document, police officer Jones, was immaterial to admission. M.R.E. 803. What is admissible as a public record are the “factual findings resulting from an investigation” but not the opinions and conclusions that are contained in the report. M.R.E. 803(8) & M.R.E. 803(8) cmt. The officer’s coded conclusions in the report that one driver complied with the law and the other faded to yield would have been excluded if the only doorway for admission was Rule 803(8) itself.

¶ 16. Of course, the doorway used here for admitting the document was the pretrial agreement of the parties. The defendant Floyd alleges that when parties stipulate to evidence, any objection that the evidence may elicit is waived. One precedent cited to us concerned an election contest. Blakeney v. Hawkins, 384 So.2d 1035, 1036 (Miss.1980). The parties’ stipulation to the admission of the evidence was found to be sufficient to waive the usual authentication requirements. A “presumption of correctness” of the election outcome as certified by the election commissioners existed “unless the jury finds the presumption overcome by some plausible explanation.... ” Id. at 1037. This precedent allows the issues of authenticity to be bypassed by agreement. But authenticity is not our issue. Also not our issue is a late-discovered challenge to relevance of some documents when the parties have agreed to admission of a batch of records. Meena v. Wilburn, 603 So.2d 866, 871 (Miss.1992).

¶ 17. Even though the hearsay exception for public records categorically excludes opinions, an exception without that exclusion was available. Police reports are also admissible as business records. Copeland v. City of Jackson, 548 So.2d 970, 975 (Miss.1989) (discussing M.R.E. 803(6)). Admissibility does not depend on a distinction between facts and conclusions; the fault line is elsewhere. It has been held that “a police report which contained information obtained from a bystander was inadmissible; the officer qualified as one acting in the regular course of a business, but the informant did not.” Fisher v. State, 690 So.2d 268, 273 (Miss.1996) (quoting Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930)). The information must be based on the knowledge of the officer who prepared the record:

In holding such report admissible we should not be understood as holding all the contents of the report were necessarily admissible. For example, there may be notations in such a report which are recitations of statements of others, and would be inadmissible even though the officer were present in court testifying. The report is simply a substitute for the officer appearing in person and testifying.

Copeland, 548 So.2d at 975-76.

¶ 18. Despite these precedents, the business record exception is not an unfettered right to admit all information contained within a police report except for hearsay statements from witnesses. An opinion in the report is admissible “so long as ‘the conclusion is based on a factual investigation and satisfies the Rule’s trustworthiness requirement.’” Jones v. State, 918 So.2d 1220, 1231 (Miss.2005) (quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 170, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988)). In Beech, the United States Supreme Court held that an investigatory report by a U.S. Navy judge advocate concerning an airplane crash could not be excluded just because the report stated an opinion as to the cause of the crash. The Supreme Court noted that a lay witness is permitted to testify by “opinion or inferences” based on observations if helpful to the trier of fact. The fact that the evidence is an opinion would not categorically exclude it, but it should not be admitted if it is unreliable.

¶ 19. Applying these principles, we affirmed a trial court that excluded the report of a county forester from evidence. Redhead v. Entergy Miss. Inc., 828 So.2d 801, 809 (Miss.Ct.App.2001). The report contained the forester’s conclusion that trees had caught fire from contact with a power line running above the trees. Since the forester was not qualified to offer such an opinion, the statement was not trustworthy.

¶ 20. Quite similarly, before an alleged expert on accident reconstruction may be permitted to testify, the qualifications of that witness must be supported by evidence of actual expertise. A law enforcement officer may not have sufficient expertise even when having substantial experience in preparing reports on accidents. Fielder v. Magnolia Bev. Co., 757 So.2d 925, 937-38 (Miss.1999) first appeal concluded that law enforcement witness at original trial was not qualified. Id. at 927 (citing Fielder v. Magnolia Bev. Co., 667 So.2d 640 (Miss.Ct.App.1995) (mem)). A police officer who is not qualified as an expert in accident reconstruction should not be allowed to state opinions on causation or fault in an accident. Id.; Thompson v. Lee County, 925 So.2d 57, 67 n. 7 (Miss.2006) (citing Roberts v. Grafe Auto Co., 701 So.2d 1093, 1098-99 (Miss.1997)). In Thompson, Roberts and the first Fielder trial the officers testified. The fact that here the opinion is in a business record does not insulate that opinion from the same rules.

¶ 21. Though police officer Jones’s report was a business record, there was no evidence that Jones was qualified to give an opinion on causation. Thus, Jones’s opinions were not admissible as a business record. Had Jones’s opinions appeared fully explained without the barrier of a code, the parties’ agreement to the admission of the document that clearly revealed those opinions would have waived any objection to the opinions. On this document, though, there was a veil over the opinions, a veil that could be lifted only by new evidence. The jury as trier of fact needed either an expert or a written explanation of the codes to understand these parts of the document.

¶ 22. We find nothing in the evidentiary rules and little precedent to explain whether parties have agreed to the admissibility of expert .explanations when they agree to admission of evidence that needs some explaining. We once considered an appeal in which the principal evidence to support the lower court could only be found in technical medical records. Fred’s Stores v. Brown, 829 So.2d 1261, 1263 (Miss.Ct.App. 2002). The records had been introduced by consent at the beginning of trial but no expert ever explained them. They contained medical opinions concerning the possible need for later surgery. The defendant belatedly argued that medical records should not be presented to the jury without expert explanation. Id. The jury could read the conclusions of the doctors and likely used them to some extent even if not fully understanding them. Chief Judge Roger McMillin for this Court rejected that expert testimony was a sine qua non for admission of the records:

The medical records were introduced without objection at the beginning of trial. To the extent expert testimony appeared in the documents that might require expert explanation, that was the time to make the objection. Therefore we find that the records could be used by the trial judge [as the fact-finder], subject to a reasonable layperson’s limits on what may be gleaned from such records.

Id. Scientific or technical evidence usually should not be presented without explanation since it might mislead. However, a failure to explain the accident report in the present case would not have misled since the expertise needed was to explain otherwise meaningless codes.

¶ 23. We conclude that the effect of the parties’ consent to admitting this accident report was more limited than the trial court ruled. Certainly such evidence as could be understood without scientific or technical knowledge was effectively in front of the jury when the document was admitted. Having a witness testify from that same level of understanding about the document does not go beyond the reach of the agreed admission of the document. The introduction of expert testimony, though, or offering another document explaining the codes, creates additional usable evidence that was not before the average juror simply from the stipulated document. Consenting to admit the report does not consent to allowing new evidence in the form of technical or scientific proof.

¶24. Deciding that the stipulated admission did not permit the expert testimony does not end the analysis, though. The report was first discussed by the plaintiff Fleming’s own expert, Jim Bowman. In his narrative explanation of his methods and conclusions, he presented evidence from the coded entries. It is true that the plaintiffs attorney did not specifically ask the witness for coded information, but the witness was asked without counsel’s imposing limits to explain how different pieces of evidence — including the accident report— allowed him to conclude that the accident was solely the fault of the defendant Floyd.

¶ 25. Experts are subject to cross-examination concerning the basis of their conclusions. Hollingsworth v. Bovaird Supply Co., 465 So.2d 311, 315 (Miss. 1985). The scope of cross-examination is not limited to the specific subject matter of the direct examination. M.R.E. 611(b). Bowman had been qualified as an expert for accident reconstruction. His testimony concerning the accident report and some of the coded information “opened the door” for the defense to pursue that line of questioning further. Cooper Tire & Rubber Co. v. Tuckier, 826 So.2d 679, 687 (Miss. 2002). Since the plaintiffs attorney elicited expert testimony from his own witness about coded information on this report, he waived any objection to defense counsel’s pursuing explanation of other codes.

¶ 26. The plaintiff Fleming makes some effort to argue that this testimony invaded the province of the jury because it was evidence of the ultimate issue of fault and denied her due process. Expert testimony is not barred simply because it “embraces an ultimate issue to be decided by a trier of fact.” M.R.E. 704. The due process allegations do not merit analysis. The evidence of the investigating officer’s opinion about the roles of each party to the accident was admissible.

¶ 27. We now turn to whether all the evidence, including these opinions, supports the verdict and resulting judgment.

2: Sufficiency of the evidence

¶ 28. Fleming argues that the trial court erred in denying her motion for directed verdict and later for a judgment notwithstanding the verdict. It appears that Fleming never moved for a directed verdict, but she did request a peremptory instruction and a JNOV. The same review standard is applied on appeal to the denial of any motion which challenged the legal sufficiency of the evidence. White v. Yellow Freight System, Inc., 905 So.2d 506, 510 (Miss.2004); Wilner v. Mississippi Export R.R. Co., 546 So.2d 678, 681 (Miss. 1989). We consider all evidence including inferences in a manner that supports the verdict. In determining if the evidence is sufficient, the inquiry is whether the evidence favors the moving party, Fleming, to such an extent that reasonable and fair-minded jurors could not have reached a contrary conclusion. Id.

¶ 29. The evidence that Fleming finds so compelling concerns Floyd’s speed. The only witness who analyzed the physical evidence available after the accident was the plaintiffs expert Bowman. He testified that Floyd was speeding, and that with such close margins between the occurrence and the avoidance of this accident, the speed was the sole proximate cause of the collision. The defendant Floyd provided no expert of her own. She simply testified that she was not driving as fast as Bowman calculated. Floyd said she saw Fleming looking in the opposite direction immediately before Fleming pulled out. Conversely, Fleming testified she looked to her left just before pulling onto Old Spanish Trail and was habitually extra-cautious about entering that street.

¶ 30. Fleming’s expert Bowman examined the skid marks and made various assumptions to cause him to calculate that Floyd was driving at least forty-seven miles an hour in this thirty mile per hour zone. Bowman also believed that it was impossible for plaintiff Fleming to have seen Floyd in time to avoid pulling out due to Floyd’s excessive rate of speed.

¶ 31. There are statutes and precedents on which the defendant Floyd relies to find Fleming at fault, including that she had a duty to yield the right-of-way. E.g., Miss. Code Ann. §§ 63-3-805 & 807 (Rev.2002); Stribling v. Hauerkamp, 771 So.2d 415, 416 (Miss.Ct.App.2000). We find the statutes and precedents to structure the analysis but not to force the result that Floyd seeks.

¶ 32. Vehicular accidents are among the banes of modern society and appellate opinions have frequently addressed issues that arise. We find little purpose in examining the myriad variations in precedents cited to us. The investigating officer’s report that was the subject of the first appellate issue concluded that Floyd had committed no violation. Though the evidence exonerating Floyd from having any fault in this accident was weak, there was at least some evidence on which jurors might rely. We do not find that as a matter of law Floyd had to be at fault.

3: Weight of the evidence

¶ 33. The plaintiff also unsuccessfully moved for a new trial. We review alleged error in refusing a new trial by accepting the evidence that supports the verdict as true. Wal-Mart Stores, Inc. v. Frierson, 818 So.2d 1135, 1143 (Miss.2002). If the appellate court after making that review has the firm belief that the verdict is so contrary to the overwhelming weight of the evidence as to constitute an “unconscionable injustice,” then a new trial should be ordered. Id.

¶ 34. We have already discussed much of the evidence. The investigating officer’s report that exonerated Floyd was admitted. Admissibility and weight are different issues, though. There is no evidence of what the investigator did before reaching that conclusion. When the investigating officer was preparing his report soon after the incident, Floyd did not admit to speeding. Fleming may not have had any idea of what Floyd’s speed might have been. Based on the evidence before him soon after the accident, with no one alleging that Floyd was speeding, the investigating officer may have had little on which to base a conclusion about anyone’s speed.

¶ 35. In addition to the opinions of the accident reconstruction witness and of the investigating officer, the jurors had photographs and measurements of the scene. This evidence revealed with some clarity that the margin of safety was quite narrow on this stretch of road. The only evidence was that because of the hill, curve, and shrubbery, a vehicle proceeding from the west towards the Fleming driveway did not appear to someone at the driveway until 200 feet away. Every second and partial second counted. At forty-seven miles per hour, which is the only substantial evidence as to speed, a vehicle would travel about sixty-nine feet per second. Once Floyd first came into Fleming’s view, had Floyd not begun to slow, she would have closed the gap in three seconds. Floyd’s skid marks covered the last ninety-four feet before the collision, which means that the brakes were applied with about half of the 200 feet remaining. Floyd’s vehicle was still moving at seventeen miles per hour when it collided with Fleming’s. According to Bowman, the stopping distance of Floyd’s vehicle had it been proceeding at only 30 miles per hour would have been forty-three feet. There was no evidence to contradict that a ninety-four foot skid, which would have been even longer if not for the collision, required a finding that Floyd was exceeding the speed limit when she began to brake. Had the defendant Floyd been able to dispute that evidence with reliable expert testimony admissible under Rule of Evidence 702, there would have been a substantial jury question.

¶ 36. One party’s violation of a traffic regulation and consequent negligence per se do not equate to fault. The violation must have been a proximate cause of the accident. Clark v. Clark, 863 So.2d 1027, 1032 (Miss.Ct.App.2004). Here, though, the overwhelming weight of evidence required a finding by the jury that any significant speeding would have been one proximate cause of the accident. Speeding decreased the reaction time with negligent haste. The investigating officer’s opinion that the defendant Floyd had committed no traffic violation was introduced because of the waiver of the objection by the plaintiff to that evidence. To the jury, likely that investigating officer’s report had the aura of impartiality. Unfortunately, there is no evidence that it had the content of reliability. Before the officer would have been allowed to testify to these opinions, he would have had his training and methods examined and a decision made on his qualifications. None of that occurred here. We do not know what the officer used to conclude that one party complied and the other breached traffic rules. The jurors had no evidence on which to validate that opinion either.

¶ 37. Jurors are entrusted with credibility decisions; they likely decided the police officer made an honest report of belief. However, the unusual reasons which made the opinion admissible did not add gold to its weight nor a blue ribbon to its accuracy. The officer’s opinion, once admitted, was entitled to be given the weight that it deserved. Meridian Hatcheries, Inc. v. Troutman, 230 Miss. 493, 505, 93 So.2d 472, 474 (1957) (evidence admitted due to waiver of objection should be given “its natural probative effect.”) This unverified opinion was not entitled to much weight in comparison to the opinion of a witness, qualified at trial as an expert, that Floyd was speeding.

¶ 38. A jury verdict will be sustained when there are differing credible versions of the facts and no physical evidence makes one version of the events implausible. Redmond v. Breakfield, 840 So.2d 828, 831 (Miss.Ct.App.2003). The investigating officer concluded that the plaintiff Fleming had failed to yield the right of way. It could well be that Fleming did not look back one last time to her left. With only seconds between the time that a vehicle driving from the left would first be seen until it reached the driveway, Fleming’s failure to make her last look to the left before pulling onto the street would easily have put both drivers in a position of danger. There may even be some aspect of the now-abandoned defense of “last-clear-chance” in the jury verdict. If the jury perceived Fleming as the person whose failure to enter the roadway with care made a collision with the speeding Floyd unavoidable, perhaps it concluded that she was responsible. Mississippi long ago adopted comparative negligence principles. Such doctrines as last clear chance do not bar recovery but are items of negligence in the overall allocation of fault. Horton v. American Tobacco Co., 667 So.2d 1289, 1293 (Miss.1995). The jury finding that Fleming had some fault is sustainable.

¶ 39. The evidence that Floyd was also at fault is overwhelming. The speed at which the only reliable evidence indicates Floyd was traveling afforded both drivers less time to avoid the collision. All entities who negligently contribute to an injury should be allocated some fault. Dawson v. Townsend & Sons, Inc., 735 So.2d 1131, 1134 (Miss.Ct.App.1999). The jury’s assessment of fault solely to Fleming is implausible based on the physical evidence. More importantly, the verdict was against the overwhelming weight of the credible evidence.

¶ 40. A new trial should have been granted. We are not, though, holding that the only outcome of a new trial is the allocation of fault to both parties:

Ordinarily this court does not disturb the finding of fact by a jury, nor review such finding except to determine whether or not there is sufficient evidence, if believed by the jury, to support the verdict. ... However, an exception to this rule may arise in exceedingly rare cases where, from the whole circumstances, the testimony is contradictory and unreasonable, and so highly improbable that the truth of it becomes so extremely doubtful that it is repulsive to the reasoning of the ordinary mind. In such a case we think it proper to award a new trial on the facts, and let another jury have an opportunity to weigh and judge the testimony at another time, and under different circumstances.

Thomas v. State, 129 Miss. 332, 92 So. 225, 226 (1922) (quoted in Edwards v. State, 736 So.2d 475, 485 (Miss.Ct.App.1999)). Reversing due to deficiencies in the weight of evidence is not the functional equivalent of directing a verdict for the new trial. If a second trial has the same outcome as the first, such a jury reconfirmation would suggest that the judicial scales used to test for overwhelming weight in this record need to be recalibrated. “If the exact evidence and no more is admitted again, the fact that a different jury looking at the same proof reaches the same conclusion means that a second reversal would not necessarily be appropriate in the interests of justice.” Edwards, 736 So.2d at 484 (citing Tibbs v. Florida, 457 U.S. 31, 43 n. 18, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982)).

¶ 41. We reverse and remand for a new trial.

¶ 42. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY IS REVERSED AND THE CAUSE IS REMANDED FOR A NEW TRIAL. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY TO THE APPELLANT AND TO THE APPELLEE.

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


source: Caselaw Access Project

author: CHANDLER, J., for the Court.

license: Public Domain

text:
    Derrick BROWN a/k/a Derrick Latory Brown a/k/a Dedrick Brown, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-KA-02291-COA.
    Court of Appeals of Mississippi.
    Jan. 23, 2007.
    Rehearing Denied May 29, 2007.

      David L. Walker, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J., for the Court.

¶ 1. After a jury trial, Derrick Brown was found guilty of sale of cocaine. The Circuit Court of Tate County sentenced Brown to fifteen years in the custody of the Mississippi Department of Corrections, with six years suspended pending future good behavior, and to pay a fine of $5,000. Brown appeals, arguing (1) that his federal and state constitutional rights to confront the witnesses against him were violated by the trial court’s erroneous admission of hearsay evidence and (2) the trial court erroneously denied his proffered jury instruction on the entrapment defense.

¶ 2. We find that the trial court erroneously admitted hearsay evidence that substantially prejudiced Brown. Therefore, we reverse and remand this case for a new trial. We find Brown’s other issue to be without merit.

FACTS

¶ 3. Antonio Echols occasionally worked as a confidential informant for the Panola County Narcotics Task Force. In 2003, Echols telephoned Elmer “Little Fudge” Armstrong and arranged to buy crack cocaine. During the call, Armstrong used three-way calling to call two other men who also spoke with Echols. On November 3, 2003, Echols contacted Commander Jason Chrestman of the Panola County Narcotics Task Force. Echols communicated that he could buy four ounces of crack cocaine from an individual. The location of the sale was to be a Wal-Mart in Senatobia in Tate County.

¶4. Then, Echols went to the Task Force offices and made a telephone call to certain unidentified individuals. The individuals told Echols that they could sell him only two ounces of crack cocaine. Echols agreed to the sale. This call was recorded by the Task Force with Echols’s knowledge. After the phone call, the Task Force placed an audio wire on Echols’s body and gave him $1,600. Echols went to the Wal-Mart in Senatobia to await the sale. Officers from the Task Force, the Drug Enforcement Administration in Oxford, and the Tate County Sheriffs Department positioned themselves in parked cars in and near the Wal-Mart parking lot. Echols stood in the parking lot for about two hours, during which he made several more calls to the individuals to inquire about their progress toward the buy location. Initially, the individuals told Echols that they would be driving a blue Monte Carlo, but later told him they would be driving a white Delta 88. These calls'were also recorded by the Task Force with Echols’s knowledge. Echols testified at the trial that he did not know to whom he had been speaking on the phone. Nor was any law enforcement officer who testified able to identify the persons with whom Echols had spoken.

¶ 5. The officers observed a white Oldsmobile Delta 88 automobile pull into a gas station hear the Wal-Mart parking lot. Two men were in the car, one in the driver’s seat and one in the passenger’s seat. A man in a red shirt exited the passenger’s side of the car. Then, the car drove into the Wal-Mart parking lot and approached Echols where he was standing. Echols opened the rear passenger’s side door of the car. According to Echols’s testimony, the driver told him to get in the car. Echols replied that he would not ride anywhere, but showed the driver the money. The driver said he would be right back. Then, Echols closed the car door, and the driver returned to the gas station parking lot. The man with a red shirt got in the passenger’s seat of the car, which then returned to where Echols was standing. Echols got into the back seat of the car. The car pulled into a parking spot. Echols testified that, inside the car, the man in the passenger seat handed Echols a baggie, and Echols handed him the $1,600. Echols put the baggie on a scale while the man in the passenger’s seat counted the money. Then, officers descended on the car and arrested the driver, identified as Derrick Brown, and the passenger, identified as Derrick Black, who was wearing a red shirt. Echols received $600 for his work as a confidential informant.

¶ 6. The contents of the baggie were later determined to be 1.53 ounces of crack cocaine. The money recovered from the scene was identified by its serial numbers as the buy money given to Echols. The car was registered to Black’s sister. A video showing the car’s activities at the gas station and of the arrest was introduced into evidence. Several cell phones were found inside the car, and a box of sandwich bags was found in the trunk. Agent Jamie Tedford of the Drug Enforcement Agency testified that it is normal for narcotics to be sealed in sandwich bags. Tedford further testified that he interviewed Brown after advising him of his rights. Tedford related that Brown said that the drugs had been supplied by Little Fudge in Tunica County. Brown also gave Tedford a description of Little Fudge’s vehicle and residence.

¶ 7. Officers from the three law enforcement agencies involved in the arrests all testified that there were no prior reports of drug activity by Brown. Officer Chrest-man testified that the target of the investigation was Elmer “Little Fudge” Armstrong, not Brown or Black. Chrestman stated that he had learned Brown’s name for the first time when he arrested him. Chrestman stated that the Task Force did not end up charging Armstrong.

¶ 8. Brown testified that he lived in Tu-nica, Mississippi and had known Armstrong and Black since grade school. According to Brown, on November 3, 2003, he planned to go to the Wal-Mart in Sena-tobia in order to put a toy for his son on layaway. Brown told Black about the plan, and Black said he “was going to go that way too” and suggested they travel together. Black asked Brown to drive because Black had no driver’s license. When they neared Wal-Mart, Black asked to be dropped off at the gas station; Brown assumed Black wanted to use the bathroom there. Brown dropped off Black and told him he was going to continue to Wal-Mart.

¶ 9. Brown further testified that, as he drove toward Wal-Mart, Echols- stopped him. Brown did not know Echols. Brown indicated to Echols that he was confused about why Echols had stopped him, and Echols showed him some money. Brown testified that he thought Echols must be looking for Black. Brown picked up Black from the gas station and then picked up Echols. Black and Echols transacted the drug sale. Brown testified that he had not previously known that a drug sale would occur. Brown maintained that he would never have come to Senatobia with Black had he known about the drug deal. Brown further testified that he had never told police that the drugs had come from Little Fudge.

¶ 10. The jury found Brown guilty of the sale of cocaine as an aider and abettor. The court overruled Brown’s motion for a new trial.

LAW AND ANALYSIS

I. THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT’S OBJECTION TO THE INTRODUCTION INTO EVIDENCE OF A TAPE RECORDING OF ANTONIO ECHOLS AND UNKNOWN INDIVIDUAL AND THE TRANSCRIPT THEREOF.

¶ 11. During Echols’s testimony, the State proffered the Task Force’s audiotape recording of Echols’s telephone conversations prior to the drug sale as well as a transcript of the tape recording. Echols testified that the transcript fairly and accurately reflected the taped conversations. Brown objected to the admission of the tape and transcript on the bases of hearsay and violation of Brown’s right to confront the witnesses against him because the persons on the tape had not been identified and thus could not be subpoenaed as witnesses. The trial court admitted the tape and transcript into evidence. The court held that, because the persons to whom Echols had been speaking were unidentified, the tape was admissible for the purpose of showing that the conversations took place and the gist of those conversations. The trial court instructed the jury that the transcript was admitted for the purpose of aiding the jury in following the content of the conversation, and that the jury should disregard the transcript to the extent that it found the transcript to be unreliable or incorrect.

¶ 12. The tape was played for the jury. The following is excerpted from the transcript:

[first phone call]
MB1: Hey what happen ... what happen man?
MB2: What happened?
MB1: ... I’m already in Senatobia man. (Inaudible) N* * * *r ain’t got but two left now.
MB2: Ain’t got but two left.
MB1: A ... a ... hey go on and bring two of them then. Bring them two. I need them real bad man.
MB2: I’m fixing to do that man. I don’t know you. You don’t know me but you know I’m fixing to come over there.
MB1: Hey I’m being watched now man. Hey you going to have the phone?
MB2: Yeah I’m going to be in a blue Monte Carlo man.
MB1: You going to be in a blue Monte Carlo?
MB2: Yeah
MB1: (Inaudible) If I was you I’d probably in and out of Wal-Mart because there be a lot of you know security around. I’m going to be in and out of Wal-Mart.
MB2: All right
MB1: Like I’m shopping. Then I’ll be calling you.
MB2: I tell yall I’m on my way now man.
MB1: I’m all ready up there man.
MB: A ... yall bring the scales too cause I aint got no scales.
MB1: I’m going to bring the scale.
[second phone call]
MB1: Hello. Where you at man?
MB2: [ ] I’m ... what you want hard or soft man. You never did say?
MB1: I want it hard man.
MB1: How long you going to be man?
MB2: About thirty-five minutes.
MB1: What ... What you going to be man?
MB2: I’m going be in a blue Monte Carlo.
MB1: You wouldn’t be sh* *ting me man?
MB2: Hey look man you at Wal-Mart man?
MB1: Yeah I’m at Wal-Mart.
MB2: All right I’ll be there.
[third phone call]
MB1: You on your way man?
MB2: Yeah I’m on my way now (Inaudible)
MB1: All right
MB2: (Inaudible) twenty five minutes.
MB1: Are you in a old model or new model? I’m going to be looking for you?
MB2: Huh ... in a white Delta 88 man
MB1: You going to be in a white Delta 88?
MB2: (Inaudible)
MB1: O.K. you know how long you’re going to be about what?
MB2: About twenty minutes
MB1: All right I’m waiting on you man man.
[fourth phone call]
MB2: Hello.
MB1: How far are you man?
MB2: Give me about two minutes man.
MB1: (Inaudible) I don’t want to miss you man. That’s why I’m steady calling man. I’m going to call you in about another five minutes you be on it.
MB2: All right Rick.
MB1: All right.
[another phone call]
MB1: Hello
MB2: Hello
MB1: Man
MB2: Yeah I got your (Inaudible)
MB1: H* *1 yeah man (Inaudible) security guard hangs around man.
MB2: S* *t give me about ... about ten minutes man.
MB1: All right
MB2: (Inaudible) hooked up
MB1: Come on man (Inaudible)
MB2: Hey you know where that store is man?
MB1: What store?
MB2: Right across ... you know where that little gas station (Inaudible)
MB1: That little gas station?
MB2: Yeah since you’re going to be sitting in the parking lot you know what I’m saying.
MB1: Yeah
MB2: You outside of Wal-Mart?
MB1: We’re right here I told you I’m going to see you when you pull up man. I’m going to be right ... I’m going to see you when you pull up.
MB2: All right what did you say you were in?
MB1: I’m ...
MB2: Or are you walking?
MB1: Yeah. I’m with my bride but I’m going to be walking out where I can see you though man.
MB2: All right Rick.
MB1: Hey I’m going to see you when
you come in (Inaudible) though man.
MB2: All right Rick.
MB1: All right.

¶ 13. Several aspects of the tape are apparent from the portions of the transcript quoted above. The Task Force designations MB1 and MB2 appear to refer to the sequence of statements, and not to designate that the statements were made by alternate speakers or to indicate how many speakers participated in the conversations. The transcript reflects that, during the conversations, someone addressed someone else as “Rick.” The Court has listened to the tape recorded conversations, which were accurately transcribed. The tape has poor sound quality; while at least two male voices are discernable, it is impossible to tell how many people were involved in the conversations. We note that Echols testified that more than one person was on the phone with him. The only evidence as to which of the statements on the tape were uttered by Echols was Echols’s testimony that the men asked him if he wanted hard or soft cocaine, and he replied that he wanted hard cocaine, and that the men said they were coming in a blue Monte Carlo and later changed it to a white car.

¶ 14. Prior to Echols’s testimony, Commander Chrestman also testified that he was unable to identify all of the parties to the taped conversations. During Brown’s cross-examination of Commander Chrest-man, Brown’s attorney asked Chrestman whose voices were on the tape. Chrest-man replied, “The [confidential informant] and an individual from Tate County. As far as who it was on the other end of the line, I couldn’t tell you.” Then, Chrest-man clarified that the “individual” to whom he referred was from Tunica County, not Tate County. Chrestman further stated that he was unable to identify the individual from Tunica County.

¶ 15. Brown argues that the tape recording constituted hearsay and that its erroneous admission prejudiced him, requiring a new trial. This Court reviews the trial court’s evidentiary rulings for abuse of discretion. Lewis v. State, 573 So.2d 719, 722 (Miss.1990). When the trial court’s admission or exclusion of evidence constitutes an abuse of discretion, this Court will not reverse unless the error affected a substantial right of a party. M.R.E. 103(a). Mississippi Rule of Evidence 801(c) defines “hearsay” as “a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(d) enumerates certain statements that are not hearsay though “they literally fall within the definition of hearsay from the hearsay rule.” M.R.E. 801 cmt. These include prior statements by witnesses and admissions by a party-opponent. M.R.E. 801(d)(1); M.R.E. 801(d)(2).

¶ 16. Brown argues that the tape-recorded out-of-court statements of the unidentified persons constituted hearsay because the statements were admitted for their truth. The State responds that the statements were admissible to corroborate the testimony of Echols and the law enforcement officers that a monitored telephone call had occurred that finalized the drug purchase. Both Brown and the State rely upon Burton v. State, 875 So.2d 1120, 1121-22 (¶¶ 2-4) (Miss.Ct.App.2004). In that case, an informant purchased crack cocaine from Burton on behalf of the Pano-la-Tate County Narcotics Task Force. An audio and videotape recording was made of the transaction. Id. The audio portion of the tape recorded Keithdrick Hunt stating “here it comes” as Burton approached on his bicycle with the drugs. Id. at 1123-24(¶ 15). Hunt did not testify at the trial, and Burton argued that he had suffered a violation of his right to confront the witnesses against him. Id. at 1123(¶ 11). Burton also argued that the audio portion of the tape was inadmissible because Hunt’s statement was hearsay. Id. at 1123(¶ 15).

¶ 17. This Court found that Burton’s right to confrontation was not violated and that he could have subpoenaed Hunt. Id. at 1123(¶ 12). We found that Hunt’s statement, “here it comes,” was not inadmissible hearsay, either because it was not admitted for its truth or because it was a present sense impression admissible under Rule 803(1). Id. at 1123-24(¶ 15). We further observed that Hunt’s statement was “hardly incriminating” considering the other portions of the tape. Id. at 1123(¶ 13). . Finding that Burton had suffered no prejudice, we recognized that “the state has a ‘legitimate interest in telling a rational and coherent story of what happened.’” Id. (quoting Mackbee v. State, 575 So.2d 16, 28 (Miss.1990)). We found that Hunt’s statement was “neither incriminating nor prejudicial to Burton’s defense, and it was necessary for the State to present a complete, rational and coherent story of what happened.” Id. at 1123(¶ 14).

¶ 18. Brown seeks to distinguish Burton because the persons on the tape sub judice were unknown and could not have been subpoenaed at the trial. The State argues that the taped conversations of Echols and some number of unidentified persons were admissible pursuant to the State’s legitimate interest in providing the jury with “a rational and coherent story of what happened.” Under the particular facts of this case, we disagree. Certainly, the State is correct in arguing that the taped conversations were not introduced for the express purpose of proving the truth of the matters asserted therein. That fact is readily apparent from the record containing the trial court’s ruling admitting the tape for the purpose of showing that the conversations took place and the gist of those conversations, in other words, to lend background to the drug transaction. However, there was copious testimony from Echols and law enforcement that conversations setting up the drug transaction took place. The eviden-tiary value of the tape for the prosecution’s stated purposes was marginal.

¶ 19. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. M.R.E. 801(c). It is always inadmissible except as provided by law. M.R.E. 802. “The rule of non-hearsay imports an objective test. The question is not the actual subjective state of mind of the prosecuting attorney, much less of the declarant, but rather a matter of how a reasonable objective observer would under the circumstances be likely to perceive the statement.” Harrison v. State, 722 So.2d 681, 684(¶8) (Miss.1998) (quoting Turner v. State, 573 So.2d 1335, 1338 (Miss.1990)). Considering the taped conversations objectively in light of all the other evidence, the most powerful eviden-tiary function of the taped conversations was to relay hearsay evidence to the jury tending to show Brown and/or Black’s pri- or planning of the drug transaction.

¶ 20. For example, the jury heard a speaker on the tape tell Echols that they would be arriving in a white Delta 88, and there was other evidence that Brown arrived driving a white Delta 88 and then the drug sale occurred. Thus, the jury was invited to credit as truth the statement that the speaker would be arriving in a white Delta 88. In the same manner, the jury was also permitted to credit as truth the arrangement to bring two ounces of hard cocaine and a scale, and the statements about the speakers’ progress to the buy location. Because the State presented no evidence identifying the persons on the tape, this Court is unable to determine whether the statements on the tape would be exempt from hearsay as admissions by a party-opponent under Rule 801(d)(2)(A) (in the case of Brown’s own statements) or 801(d)(2)(E) (in the case of statements by a co-conspirator, Black, offered against Brown). As the declarants were anonymous, we also are unable to assess the applicability of any hearsay exceptions dependent upon the declarant’s unavailability. M.R.E. 804. Further, insufficient evidence of the context of the anonymous declarant’s statements was established by the proponent to enable our assessment of the applicability of hearsay exceptions under Rule 803.

¶ 21. Most troubling to this Court is the fact that the tape plainly could have led the jury to assume either that Brown was the person on the tape planning the drug transaction, or that Brown was riding in the car listening to Black planning the drug transaction. The tape was not introduced for that purpose and, without identification of the speakers, could not have been. Gayton v. State, 595 So.2d 409, 415 (Miss.1992) (the testimony of an undercover officer identifying the defendant as the speaker on a wiretap recording rendered the defendant’s recorded statements both relevant and admissible under Rule 801(d)(2)). In this case, we find that the marginal relevance of the taped conversations pales in comparison with their capacity “to lure the factfinder into declaring guilt on a [different] ground” from that for which they were admitted into evidence. See Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). The trial court’s admission of the taped conversations constituted an abuse of discretion.

¶ 22. Moreover, the erroneous admission of the taped conversations substantially prejudiced Brown, necessitating reversal and remand for a new trial. M.R.E. 103(a). Brown testified in his defense that, until the moment of the drug sale, he had not known or intended that any drug sale would occur. As already stated, the taped conversations invited the jury to assume either that Brown was the person on the tape planning the drug transaction, or that Brown was riding in the car listening to Black as Black planned the drug transaction. Therefore, the taped conversations substantially eroded the credibility of Brown’s testimony. We have no choice but to reverse and remand this case for a new trial. Since we have granted the relief requested by Brown, we do not address his argument that the admission of the tape violated his federal and state constitutional rights of confrontation.

II. WHETHER THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S PROPOSED JURY INSTRUCTION D-6, AN ENTRAPMENT INSTRUCTION.

¶ 23. Brown argues that the trial court erred in refusing Brown’s proffered entrapment instruction. The instruction stated:

The court instructs the jury that the Defendant has raised the defense of entrapment. Entrapment is an affirmative defense and must be proved by the Defendant. In this trial, the Defendant must prove two things before the Jury may consider the entrapment defense. Those two things are:
1.) That the State of Mississippi induced the Defendant to commit the criminal act or acts; and
2.) That the Defendant lacked the predisposition to commit the criminal act or acts.
If the Defendant has failed to prove both of these things, then the jury may

not consider the defense of entrapment. The trial court also refused Brown’s jury instruction D-5, which correctly defined the defense of entrapment as: “the act of inducing or leading a person to commit a crime not originally contemplated by him for the purpose of trapping him for the offense.” See Walls v. State, 672 So.2d 1227, 1230 (Miss.1996). The court refused the instructions upon a finding that there was no evidence that Brown ever had any conversations with agents of the State until meeting the confidential informant in the Wal-Mart parking lot.

¶ 24. The entrapment defense is affirmative and must be proven by the defendant. Id. at 1230. Before the defense may be raised, the defendant must make a prima facie showing of evidence of government inducement to commit the criminal act and the defendant’s lack of predisposition to engage in the criminal act prior to contact with the government agents. Id. Predisposition and government inducement are questions of fact for the jury. Id. Once a prima facie case is made, three consequences follow: (1) the burden of production and proof is shifted to the prosecution, (2) predisposition becomes a fact of consequence and evidence thereof is relevant and admissible, and (3) the accused is entitled to have the entrapment defense submitted to the jury on proper instructions. Id. On appeal of the denial of an entrapment instruction, this Court asks whether sufficient evidence existed in the record such that a rational jury might have found for the appellant on the entrapment defense. Id.

¶ 25. Our courts have recognized two situations in which entrapment issues arise. Ealy v. State, 757 So.2d 1053, 1056(117) (Miss.Ct.App.2000). In the classic entrapment scenario, “an innocent person with no prior criminal inclination is induced through persistent entreaties by undercover law enforcement agents to commit an offense.” Id. In the other scenario, known as “supply and buy,” law enforcement officers initially supply and later buy the contraband with which the accused commits the crime. Id. But, “[a] defendant is not entrapped — and enjoys no protection from prosecution — when he is already predisposed to commit the crime and when law enforcement officials merely furnish him the occasion or opportunity for doing so.” Tanner v. State, 566 So.2d 1246, 1248 (Miss.1990). Thus, for a successful entrapment defense, the defendant must show he was not “ready and willing” to commit the offense at the time the opportunity for doing so arose. Ealy, 757 So.2d at 1056(¶ 9). And, the court has held that an entrapment instruction is unnecessary where the defendant was merely asked by a law enforcement agent to sell the substance and was caught. Walls, 672 So.2d at 1231.

¶ 26. Brown testified that he personally had not sold cocaine to Echols and, prior to the cocaine sale, had not known a cocaine sale would occur. According to Brown’s own testimony, he was not induced to violate the law, but rather never formed the intent to aid and abet Black’s sale of cocaine. Though an entrapment defense was not supported by Brown’s own testimony, Brown was entitled to assert inconsistent alternative theories of defense. Reddix v. State, 731 So.2d 591, 593(¶ 9) (Miss.1999). Brown argues that he was entitled to alternatively show that, if he did aid and abet the sale of cocaine, he was induced to do so by law enforcement. Considering the admissible evidence, other than Brown’s testimony, concerning the arrangement of the cocaine sale, the evidence showed that Echols contacted Elmer “Little Fudge” Armstrong about buying crack cocaine. Then, Armstrong put Echols in touch with unknown individuals who arranged the quantity of the drugs, buy location, and other details' with Echols. Subsequently, Brown drove up to Echols at the buy location and asked Echols to get in the car; Echols showed him money. A short time later, Brown picked up Black, returned and picked up Echols, and the drug sale transpired. There was no evidence that Echols or any other law enforcement agent ever asked to buy drugs from Brown. Nor was there evidence that Echols communicated his desire to buy drugs to Black in any way beyond merely offering Black money in exchange for the drugs. Therefore, there was insufficient evidence that Brown was induced to aid and abet the sale of cocaine to entitle Brown to an entrapment instruction. Walls, 672 So.2d at 1231. This issue is without merit.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF TATE COUNTY IS REVERSED AND REMANDED FOR A NEW TRIAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TATE COUNTY.

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


author: GRIFFIS, J., for the Court.

text:
    Emma COX, Appellant v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, Appellee.
    No. 2006-SA-01611-COA.
    Court of Appeals of Mississippi.
    Nov. 27, 2007.

      W. Ellis Pittman, Jwon Terrell Nathaniel, attorneys for appellant.
    Office of the Attorney General by Jane L. Mapp, attorneys for appellee.
    Before MYERS, P.J., GRIFFIS and CARLTON, JJ.
   GRIFFIS, J., for the Court.

¶ 1. After seventeen years of employment, Emma Cox was terminated from her position as correctional officer with the Mississippi Department of Corrections (“MDOC”). An administrative review hearing was held by MDOC, after which, the hearing officer recommended that Cox be terminated for appearing to be asleep while on duty. Cox appealed the termination to the Employee Appeals Board (“EAB”). After a hearing before an EAB hearing officer, the termination by MDOC was upheld. Cox appealed this decision to the full board of the EAB, where the termination was also upheld. Cox then appealed the EAB’s decision to the Circuit Court of Sunflower County. The circuit court also affirmed MDOC’s decision to terminate Cox. Cox now appeals the decision of the circuit court. She argues that the court erred by affirming the EAB’s decision to terminated when: (1) the EAB did not have the benefit of a complete transcript of the hearing, and (2) substantial evidence does not exist to terminate Cox thereby making the EAB’s decision arbitrary and capricious. We find no error and affirm.

FACTS

¶ 2. Emma Cox held the position of Correctional Officer IV at the Mississippi State Penitentiary in Parchman, Mississippi. On January 11, 2005, Cox was on duty during “yard call.” Deputy Warden John Rogers observed Cox sitting down with both eyes closed. After Cox was unresponsive for about five seconds, Rogers addressed her and asked why she was sitting with her eyes closed. Cox claimed that her eyes were never closed and that she was seated because she was experiencing pain in her legs. The pain was caused by a fall she sustained three days earlier after a prisoner spilled food on the floor.

¶ 3. Following his observation, Deputy Warden Rogers issued a report of the incident and requested that action be taken because Cox did not respond when he walked out into the yard. Cox committed the following Group Three Offenses of the Mississippi State Personnel Board Policy and Procedures Manual:

7. violation of safety rules where there exists a threat to life or human safety;
11. an act or acts of conduct occurring on or off the job which are plainly related to job performance and are of such nature that to continue the employee in the assigned position could constitute negligence in regard to the agency’s duties to the public or to other state employees.

¶ 4. The MDOC conducted an administrative review hearing and the hearing officer recommended that Cox be terminated. Her termination became effective on April 7, 2005. The notice stated the following reason for termination:

On January 11, 2005 at approximately 1157 hours, Deputy Warden (DW) John Rogers entered Unit 32 Bravo. During his tour of the building, he observed “yard call” in progress. He then exited the building to monitor the detail, at approximately 1220 hours he observed [Cox] sitting down adjacent to the door. [Cox] had both eyes closed and did not know that DW Rogers had walked out onto the yard. After approximately five (5) seconds, he addressed [Cox] and questioned [Cox] about sitting down during yard call and regarding [Cox’s] eyes being shut.

¶ 5. After her MDOC administrative appeals were exhausted, Cox appealed the termination decision to the Circuit Court of Sunflower County. The circuit court also upheld the termination.

STANDARD OF REVIEW

¶ 6. To dismiss an employee of a state agency, good cause must be shown after the employee is given written notice and the opportunity for a hearing. Holly v. Miss. Dep’t of Corr., 722 So.2d 632(¶ 12) (Miss.1998). “Employees affected by adverse decisions may appeal to the Employee Appeals Board (EAB) for de novo hearing, then to circuit court for judicial review on the record, and finally to this Court.” Id. (citations omitted).

¶ 7. Review of the EAB’s decision “is not de novo, rather, this Court (and any reviewing court) determines whether the Board’s decision was (1) unsupported by substantial evidence, (2) arbitrary and capricious, (3) beyond the powers of the Board to make, or (4) violative of a statutory or constitutional right of [the complaining party].” Harris v. Miss. Dep’t of Corr., 831 So.2d 1105, 1107(¶ 6) (Miss.2002) (citations omitted). However, any questions of law raised on final appeal will be reviewed de novo. McGowan v. Miss. State Oil & Gas Bd., 604 So.2d 312, 317 (Miss.1992).

ANALYSIS

1. Whether the EAB’s en banc decision to uphold Cox’s termination was a violation of due process because its review was conducted without the benefit of the full transcript of the hearing before the EAB hearing officer.

¶ 8. Cox argues that it was a violation of her due process rights for the full board of the EAB to affirm the hearing officer’s decision to terminate her because the board did not have the full transcript of the original hearing. On page ninety-five of the hearing transcript, the court reporter states, “The following record is a portion of the last 23 pages of shorthand notes, which were damaged when Hurricane Katrina took off shingles of my office and I had leaks and ceiling tile which fell on some books, tapes, and papers.”

¶ 9. The cross-examination and re-direct of Officer Hemphill, a fellow correctional officer, is missing from the record. Cox claims that this testimony is essential for her to establish how the decision to terminate her was arbitrary and capricious because other similarly situated employees were treated differently. Also, the majority of Cox’s direct examination is not included in the transcript. Cox claims that, due to the missing portions of the transcript, she was denied the opportunity for a meaningful review by the full EAB thus raising a due process question that would allow this Court to reverse the EAB’s ruling.

¶ 10. Cox filed a motion for a new trial in the circuit court. The court denied the motion finding that Cox had failed to comply with Rule 10(c) of the Mississippi Rules of Appellate Procedure. The rule, entitled “Statement of the Evidence When No Report, Recital, or Transcript Is Available,” states in part that:

[i]f no stenographic report or transcript of all or part of the evidence or proceedings is available, the appellant may prepare a statement of the evidence or proceedings from the best available means, including recollection. The statement should convey a fair, accurate, and complete account of what transpired with respect to those issues that are the bases of appeal. The statement, certified by the appellant or his counsel as an accurate account of the proceedings, shall be filed with the clerk of the trial court within 60 days after filing the notice of appeal.

M.R.A.P. 10(c). The circuit court held that Cox could have supplemented the record with her own recollection of the missing parts of the hearing. Because she did not do so, the court found that she was not entitled to a new hearing.

¶ 11. The supreme court has considered the issue of an incomplete transcript. In Watts v. State, 717 So.2d 314 (Miss.1998), the court reporter was unable to complete the transcript due to a physical illness. Watts argued that his conviction and sentence should be reversed because the incomplete transcript denied him of his right to meaningful appellate review. Id. at 316 (¶¶ 4-5). However, Watts failed to comply with Rule 10(c) by not submitting a statement of the missing portions of the record. Id. at 317(¶ 6). The court, finding no reversible error, held that “it is the duty of the appellant to see that the record of the trial proceedings wherein error is claimed is brought before this Court.” Id. The supreme court adopted the U.S. Fifth Circuit Court of Appeals’ rule that when an appellant is represented by the same counsel at trial and on appeal, the appellant “is required to show specific prejudice by the missing portions of the record in order to mandate reversal and remand for a new trial.” Id. at 318(¶ 10).

¶ 12. While, unlike Watts, Cox does claim that she was harmed by the missing portions of the record, she has not shown the specific prejudice necessary to warrant reversal on this issue. She was represented by her present counsel at both the hearing before the EAB hearing officer and at the appeal to the circuit court. No attempt was ever made to supplement the incomplete transcript.

¶ 13. Cox claims that prejudice against her exists because the missing testimony was crucial to prove that her termination was arbitrary and capricious. According to her, the testimony of Officer Hemphill and her own direct testimony established that, on a previous occasion, other MDOC employees appeared to be asleep while on duty but were not terminated. However, the transcript before us includes testimony at length about this prior incident. In fact, the issue was addressed in the circuit court’s opinion. The court distinguished the prior incident because the other employees who appeared to be asleep were located in a secure tower and not like Cox in an open yard with prisoners. Cox has not shown that the missing testimony would be anything more than a repetition of the testimony that is included in the transcript. Because Cox has not shown that she has suffered specific prejudice due to the missing testimony, this issue has no merit.

2. Whether there was substantial evidence to uphold the EAB’s decision to affirm Cox’s termination.

¶ 14. Cox next argues that the EAB’s decision to terminate her employment was not supported by substantial evidence. Specifically, Cox argues that the evidence proved that the decision of the EAB was arbitrary and capricious. Cox contends that the following reasons indicate that she should not have been terminated: Deputy Warden Rogers was newly appointed to his position; Rogers never said that Cox was asleep but said that she was only unresponsive; MDOC did not investigate the matter further before her termination; and other MDOC employees who appeared to be asleep while on duty were never brought before the hearing officer or terminated.

¶ 15. It was the hearing officer who heard the conflicting testimony and observed the demeanor of each witness. The EAB, through its adoption of the hearing officer’s decision, was the fact-finder in this case. “It is not for this Court to substitute its opinion for the opinion of the Board where the Board has reached its decision on conflicting evidence and where its conclusions are supported by substantial evidence.” Ohio Oil Co. v. Porter, 225 Miss. 55, 60, 82 So.2d 636, 638 (1955).

¶ 16. Despite the conflicting testimony presented by Cox, we find that there was substantial evidence to support the EAB’s decision to terminate her. Substantial evidence is such evidence that “reasonable minds might accept as adequate to support a conclusion.” Delta CMI v. Speck, 586 So.2d 768, 773 (Miss.1991). Deputy Warden Rogers testified that Cox was sitting down and that her eyes appeared to by closed while she was supposed to be observing the prisoners in the yard. Testimony was presented that the prisoners in the yard were classified as dangerous. There was further evidence that the prisoners were aware that Cox was not paying attention and that such a situation presented a danger to herself and to the prisoners. This evidence supports the hearing officer s finding that her inattentiveness to her duties placed herself as well as others in danger. She was alone in a yard with inmates who are classified as dangerous, being housed in a maximum security unit, and her failure to be alert could have resulted in injury to herself and others.”

¶ 17. Cox further argues that the decision was arbitrary and capricious because other guards who appeared to be asleep on duty were not terminated. However, evidence was presented to distinguish Cox’s termination from the prior incidents. The other employees were in a secure tower and were observed to be asleep by the MDOC’s surveillance cameras. Testimony was offered to show that the cameras were much less reliable than being observed in person as was the case when Deputy Warden Rogers observed Cox. We find substantial evidence to distinguish the MDOC’s decision to terminate Cox; thus, the fact that she was not treated in the same manner as the other employees does not make the EAB’s decision arbitrary and capricious. Accordingly, this issue has no merit.

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

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


text:
    Cynthia Bell GRAY, Appellant v. Glenn Van GRAY, Appellee.
    No. 2006-CA-00251-COA.
    Court of Appeals of Mississippi.
    Nov. 27, 2007.
    Fritzie Louise Toney Ross, attorney for appellant.
    Alsee McDaniel, Indianola, attorney for appellee.
    Before KING, C.J., CHANDLER and CARLTON, JJ.
   CHANDLER, J., for the Court.

¶ 1. On November 21, 2005, the Chancery Court of Washington County denied Cynthia Gray’s (Cindy) petition to modify an earlier court order that granted custody of her two minor children to her ex-husband and their father, Glenn Gray. Aggrieved, Cindy appeals the denial of modification. She asserts the following issues:

I. She met her burden of proving that there had been a material change of circumstances that adversely affects the children.
II. The chancellor erred in applying the Albright factors.
III. The chancellor should have made specific findings as to the preference of thirteen-year-old Jonathan to live with his mother.
¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On September 20, 2004, the Chancery Court of Washington County entered a final decree of divorce based on irreconcilable differences between the parties, Cindy and Glenn Gray. The order awarded joint legal custody of the two minor children and primary physical custody to their father, Glenn. The court granted visitation based on the standard visitation schedule.

¶ 4. In the divorce decree and award of custody, the chancellor found it was in the best interests of the children for their father to have primary physical custody. Since that time, however, Glenn moved from Leland, Mississippi to Springdale, Arkansas, in order to get away from alleged harassment by Cindy and her father.

¶ 5. On August 5, 2005, Cindy filed a motion for contempt and a petition to modify custody, alleging that Glenn’s move and the living arrangements of the children were material changes of circumstances that adversely affected the children. The court held a trial solely on the issue of modification. At trial, the chancellor heard testimony from Cindy and Glen, their parents, and the two minor children, a daughter who was seven and a son who was thirteen at the time.

¶ 6. Cindy and Glenn each testified as to their acceptable living arrangements. Cindy told how she had begun taking pre-nursing classes but was still completely dependent on her parents for all of her financial support. She was no longer on the methamphetamines that she had been taking at the time of the divorce, but the chancellor noted that she was dependent on antidepressant and anti-anxiety prescriptions. Glenn testified that he moved to Arkansas to escape harassment from his ex-wife and her father. At the time of trial, he was about to open a family sports bar and move into a new house. He lived in a two-bedroom apartment at the time and allowed his daughter to sleep in his bed with him every night. Each of the children expressed that they wished to live with their mother because they missed her.

¶ 7. At the conclusion of the trial, the chancellor found that Cindy had not met her burden of proving a material change of circumstances that adversely affected the children nor had she shown any improvement in her living condition at the time. The chancellor, therefore, denied Cindy’s petition for modification.

STANDARD OF REVIEW

¶ 8. We apply a limited standard of review in a custody case, and we will not reverse the decision of the trial court unless it was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. K.D.F. v. J.L.H., 933 So.2d 971, 980(¶ 33) (Miss.2006) (quoting Hensarling v. Hensarling, 824 So.2d 583, 586(¶ 7) (Miss.2002)).

ISSUES AND ANALYSIS

I. Whether there was a material change in circumstances

¶ 9. Cindy claims that she met her initial burden of proving a material change in circumstance that adversely affects the children. She argues that Glenn’s move to Arkansas and the children’s living conditions there show such a change. According to Cindy, she is also in a better position to care for the children because she has a more stable life now than at the time of the original custody decree. For these reasons, she feels that the chancellor erred in finding that she had not met her initial burden.

¶ 10. To receive a modification of child custody, a petitioner must first prove a material change of circumstances that adversely affects the child. Robison v. Lanford, 841 So.2d 1119, 1124(1116) (Miss.2003). If the petitioner so proves such a change in circumstances, the chancellor then must ask whether the best interests of the child warrant a change in custody. Id. The movant bears the burden of proof. Id. As with all child custody cases, the polestar consideration is the best interests of the child. Brocato v. Brocato, 731 So.2d 1138, 1141(¶ 11) (Miss. 1999).

¶ 11. The relocation of the custodial parent is not always a material change in circumstances, let alone an adverse change sufficient to require modification of custody. Lackey v. Fuller, 755 So.2d 1083, 1088(¶ 26) (Miss.2000).

¶ 12. In the present case, the chancellor found that Cindy had not met her burden of proving a material change in circumstances that adversely affected the children. Specifically, the chancellor refused to fault Glenn for moving away from Leland, Mississippi, for better opportunities in Arkansas. She noted that the children were well cared for, lived in a clean and suitable home, and were doing well socially and in school. Cindy’s mother even admitted in her testimony that Glenn was a good father, that he provided a clean home, that he took chre of the children, and that he fed and clothed them well.

¶ 13. As far as Cindy’s circumstances, the chancellor found that they had not changed much since the divorce. Since then, she had not tried to find a job. At the time of trial, she was in a pre-nursing program, but she had no income except for what her parents gave her. Her parents paid her rent and utilities, bought her groceries, and even loaned her a car. Cindy was not expected to be through with school and be in a position to find a job for approximately two-and-a-half years from the time of trial. While on the stand, she also admitted that her depression and anxiety necessitated that she take a number of prescription medications every day.

¶ 14. The chancellor also found that Glenn’s living arrangements were adequate and did not adversely affect the children, as Cindy alleged. Her complaints that her daughter would sleep in the bed with Glenn and that he would leave the children alone for a few minutes to run to the store were irrelevant because she admitted to doing the same things. She testified that she would leave her son alone because he knew what to do and had a cell phone to use in an emergency. She also said that her daughter liked to sleep in the bed with her all the time too.

¶ 15. Based on these facts presented at trial, we find there was substantial evidence to support the chancellor’s finding that Cindy failed to show a material change of circumstances that adversely affected the two minor children. It was, therefore, not clearly erroneous nor manifestly in error to deny Cindy’s petition to modify the order granting custody to Glenn. This issue is without merit.

II. Albright factors

¶ 16. Cindy next argues that the chancellor failed to apply the factors set out in Albright v. Albright, 437 So.2d 1003,1005 (Miss.1983). This argument, however, disregards the fact that the chancellor applied an Albright analysis in her initial determination of custody and that the standard for custody modification, as we previously stated, is whether there has been a material change of circumstances since the prior order that adversely affects the child. Robison, 841 So.2d at 1124(¶ 16).

¶ 17. In her denial of modification, the chancellor took into account a number of factors in determining what was in the children’s best interests. She noted that Glenn provided a better living environment, that he was better able to support the children, that he was a better disciplinarian, that the children were doing well in school, and that Cindy still relied on depression and anxiety medication to make it through the day. Based on these factors, the chancellor found that there was no material change in circumstances and that the children’s bests interests would be served by having them remain with their father. We do not find this was in error. This issue is without merit.

III. Preference of a child over the age of twelve

¶ 18. Besides consideration of the best interests of a child, other factors are to be given equal weight. Mosley v. Mosley, 784 So.2d 901, 906(¶ 18) (Miss.2001) (citing Albright, 437 So.2d at 1005). In this case, the chancellor properly noted that the preference of the thirteen-year-old was but one factor to consider in making her determination of whether to change custody. This was not in error, and the chancellor properly took into consideration the best interests of the children in her determination that custody should remain with Glenn. This issue is without merit.

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

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