text:
    Marcus WHITEHEAD, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01364-COA.
    Court of Appeals of Mississippi.
    March 27, 2007.
    Rehearing Denied July 31, 2007.

      William R. Labarre, Hollandale, Virginia Lynn Watkins, attorneys for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Marcus Whitehead was convicted of two counts of aggravated assault by a Hinds County jury. He was sentenced to consecutive terms of twenty years on each count in the custody of the Mississippi Department of Corrections. Aggrieved, Whitehead appeals and asserts (1) that he was denied his due process right to a fair trial, and (2) that the trial court abused its discretion in overruling certain objections and in denying his motion for a mistrial.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Around 3:00 a.m. on November 8, ■ 2003, Dominique Land, Tikeshia Land’s daughter, alerted Tikeshia that someone was “pounding” on the door of their apartment at the North Colony Apartment complex in Jackson, Mississippi. Tikeshia opened the door and discovered that it was Whitehead. She allowed him to enter. Once inside, Whitehead asked for some water and went into the kitchen to get the water. In the meantime, Takeshia sat on the couch and instructed Dominique to return to bed. When Whitehead returned from the kitchen, he began to stab Tikes-hia in the neck with a knife. Dominique heard her mother’s screams and came to her rescue by jumping on Whitehead’s back in an effort to stop him from stabbing her mother. Whitehead threw Dominique across the across the room and at some point stabbed her in the eye.

¶ 4. At trial, Tikeshia and Dominique, as well as other witnesses, testified against Whitehead. However, since Whitehead does not challenge the sufficiency of the evidence against him, we dispense with a recitation of all the facts surrounding the crimes and will only relate additional facts, as appropriate, during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Denial of Due Process and Right to a Fair Trial

¶ 5. Under this issue, Whitehead argues that he is entitled to a new trial because the prosecutor engaged in improper conduct during her opening statement, her cross-examination of him, and during her closing argument. The Mississippi Supreme Court has held that “where the natural and probable effect of the improper argument of the prosecuting attorney is to create an unjust prejudice against the accused and to secure a decision influenced by the prejudice so created, a new trial should be granted.” Craft v. State, 226 Miss. 426, 435, 84 So.2d 531, 535 (1956). Therefore, we examine the instances of alleged misconduct in light of this standard.

¶ 6. In the first instance of alleged prosecutorial misconduct, the prosecutor made the following comment during her opening statement:

The last thing that you will hear, you will hear from Detective Amos Clinton. He’s the detective that handled this case. He is going to testify about the statement that this defendant gave, and the fact that [the defendant] apparently had no knowledge of who Tikeshia Land or Dominique Land was until [the defendant] asked the Police Department, “did you get any fingerprints.” At that point he refused to talk to the police after that.

Our review of the record reveals that the prosecutor was technically incorrect because, although Whitehead stopped relating his version of what occurred on the night of the stabbings, he did in fact continue to talk to the officers. Notwithstanding this fact, the prosecutor’s remark was not a comment on Whitehead’s constitutional right to remain silent, because Whitehead waived this right by signing a waiver of rights form and did not subsequently invoke it. Therefore, there is no merit to this issue.

¶7. In the second incident of alleged misconduct, Whitehead directs our attention to the following remark, also made during the prosecutor’s opening statement:

The other part of this is Ms. Land,' Tikeshia Land, is going to tell you, she’s not real proud of this, but she had just gotten out of a long term relationship. She had been with a man for about three, three and a half years, has children with him. She had broken off with him about a month earlier. Mr. Whitehead starts coming snooping around.

And Ms. Land is going to tell you— Whitehead argues that the prosecutor’s characterization of him as “snooping around” contributed to the denial of his right to a fair trial.

¶ 8. Whitehead also argues that the prosecutor’s conduct was magnified by the “completely disrespectful manner in which the prosecutor cross-examined [him] by repeating questions [he] had previously answered, repeatedly asking him how Land and Dominique were stabbed when [he] insisted he did not know and continually interrupting his attempts to respond.” We quote the specific exchange which according to Whitehead denied him a right to a fair trial:

Q. Mr. Whitehead, did you stand up in front of Judge Yerger and put your hand on a Bible and swear to tell the truth?
A. Yes, sir — I mean, yes, ma’am.
Q. Do you understand what that means?
A. Yes, ma’am.
BY [ATTORNEY FOR DEFENDANT]: We’re going .to object, your Honor—
BY [ATTORNEY FOR STATE]: Your Honor—
BY [ATTORNEY FOR DEFENDANT]: That’s not an appropriate question. He took the oath just like any—
BY [ATTORNEY FOR THE STATE]: I can ask him about the oath that he took—
BY [ATTORNEY FOR DEFENDANT]: I’m sorry. Can I finish my objection, Judge?
BY THE COURT: All right.
BY [ATTORNEY FOR DEFENDANT]: He took the oath just like any other witness. You can’t ask him about that. The jury knows he did that.
BY THE COURT: You can ask him if he took the oath to tell the truth. Sustained.
BY [ATTORNEY FOR THE STATE]: (Continuing)
Q. Did you take an oath to tell the truth?
A. Yes, ma’am.
BY [ATTORNEY FOR DEFENDANT]: Asked and answered, your Honor.
BY [ATTORNEY FOR THE STATE]: Your Honor, you just said I could ask the question.
BY THE COURT: Overruled.
BY [ATTORNEY FOR THE STATE]: Thank you.
BY [ATTORNEY FOR THE STATE]: (Continuing)
Q. Let me ask you again. Do you remember just about 10 minutes ago standing up there and swearing to tell the truth?
A. Yes, ma’am.
Q. To God?
A. Yes, ma’am.
Q. Is that what you say you’re doing right now?
A. Yes, ma’am.
Q. And is this the first time in almost two years that anybody has ever heard this story that Tamika [sic] Land attacked you? Is that [the] first time anybody has ever heard it?
A. I don’t know, ma’am.
Q. Well, did you tell Detective Clinton — I guess Detective Clinton left. Did you tell Detective Clinton?
A. No ma’am.
Q. Well, he gave you ample opportunity. Didn’t he say you could have written anything that you wanted on Exhibit 24? You could have told him anything that you wanted; is that right?
A. Yes, ma’am.
Q. You could have said Tamika [sic-]Land loved that sex with you so much that—
BY [ATTORNEY FOR DEFENDANT]: Judge, we’re going to object to the form of this question. That’s way out of line.
BY [ATTORNEY FOR THE STATE]: Your Honor, he’s on cross.
BY [ATTORNEY FOR DEFENDANT]: I mean, she could say you can ask anything in the world.
BY THE COURT: Well—
BY [ATTORNEY FOR DEFENDANT]: She can make up anything she wants to at this point, Judge.
BY THE COURT: Object to that question. Sustained — I mean sustain the objection.
BY [ATTORNEY FOR THE STATE]: (Continuing)
Q. You could have told Detective Clinton that this story that the first time anybody is hearing is today, that Tamika [sic] Land attacked you. Isn’t that what you’re telling this jury?
A. I could have told him.
Q. And you didn’t?
A. No ma’am.
Q. Why not?
A. Afraid.
Q. Afraid of what?
A. To be in the situation that I am now.
Q. Well, don’t you think if you tell the truth that that’s what’s supposed to release you?
A. Yes, ma’am.
Q. Okay. And you didn’t do that?
A. No, ma’am.
Q. And today is the first time anybody is ever hearing it—
BY [ATTORNEY FOR DEFENDANT]: We’re going to object, your Honor. This has been asked and answered four times by my count at this point. This is the first time you said this. That’s asked and answered.
BY [ATTORNEY FOR THE STATE]: Your Honor, he’s on cross.
BY [ATTORNEY FOR DEFENDANT]: Well, how many times does he have to answer the same question?
BY THE COURT: Well, I’ll let her ask it. Proceed.
BY [ATTORNEY FOR THE STATE]: I’ll move on.
BY THE COURT: All right. Move on.
* * ⅜ ⅞
Q. Now, you will agree with me that this all happened in Hinds County? Did it happen in Hinds County?
A. Jackson, yes, ma’am.
Q. And it happened at 72 Copperfield Court?
A. Yes, ma’am.
Q. North Colony Apartments?
A. Yes, ma’am.
Q. And you’re not denying that Tikes-hia Land and Dominique Land got stabbed that night, are you?
A. I’m not denying it.
Q. I said are you denying that they got stabbed that night?
A. No, I’m not denying that.
Q. Who stabbed them?
A. I don’t know, ma’am.
Q. You didn’t stab them?
A. It wasn’t me.
Q. Are you denying that Ms. Tikeshia Land got stabbed 25 times?
A. I don’t know, ma’am, what happened.
Q. Do you think she stabbed herself?
BY [ATTORNEY FOR DEFENDANT]: Judge, we’re going to object.
BY [ATTORNEY FOR THE STATE]: Your Honor, I can ask—
BY THE COURT: It’s on cross-examination. Overruled.
BY [ATTORNEY FOR THE STATE]: Thank you.
BY [ATTORNEY FOR THE STATE]: (Continuing)
Q. Did she stab herself 25 times in the throat, slashing her throat to the point that she had to have a trachea put in, and stab herself in the stomach to the point that she had to have her stomach opened? Is that what she did because of you?
A. I mean, we were just struggling there. I wasn’t fixing to let the knife touch me, you know. I wasn’t — we were struggling.
Q. You weren’t going to let the knife touch you, so what did you do?
A. I had her arms. I had her arms with both my arms.
Q. Were you making her stab herself?
A. No. No, ma’am.
Q. So how was she stabbed, then?
A. Through the struggle. Had to be through the struggle.
Q. Through the struggle.
A. Because I, Marcus Whitehead, didn’t stab her. I didn’t stab her. I didn’t go over there to stab her.
Q. So some way this woman had a knife in her hand, and during the struggle she managed to stab herself 25 times?
BY [ATTORNEY FOR DEFENDANT]: Judge, there’s no testimony about 25 stab wounds. There’s no medical testimony about numbers of wounds at all.
BY [ATTORNEY FOR THE STATE]: Your Honor, this woman testified that she was stabbed 25 times.
BY THE COURT: Overruled. Overruled.
BY [ATTORNEY FOR DEFENDANT]: Thank you, your Honor.
BY [ATTORNEY FOR THE STATE]: (Continuing)
Q. So somehow the knife that was in her own hand, she managed to stab herself 25 times when she was struggling with you because she didn’t want you to leave her. Is that what you’re saying?
A. Ma’am, we was struggling over the knife.
Q. Why were you struggling over the knife.
A.' I didn’t want to get stabbed by no knife, ma’am.
Q. Did you think she wanted to get stabbed?
BY [ATTORNEY FOR DEFENDANT]: We’re going to object, your Honor.
BY THE COURT: Sustained.
BY [ATTORNEY FOR DEFENDANT]: He’s not competent to answer such a question. She knows that.
BY [ATTORNEY FOR THE STATE]: (Continuing)
Q. Explain this to me. How did she get stabbed? I don’t understand the concept of how she got stabbed.
BY [ATTORNEY FOR DEFENDANT]: Judge, this has been asked and answered three times now.
BY [ATTORNEY FOR THE STATE]: He has not answered it.
BY [ATTORNEY FOR DEFENDANT]: The same question has been asked and he has given an answer three times in a row now. She is not getting the answer she wants to hear, so we’re going to object.
BY THE COURT: All right. Sustained to the extent that you need to ask him about any more specifics. But don’t repeat the same question.
BY [ATTORNEY FOR THE STATE]: (Continuing)
Q. How did Dominique Land get stabbed?
BY [ATTORNEY FOR DEFENDANT]: That was the objection—
BY [ATTORNEY FOR THE STATE]: Your Honor, that’s a different person—
BY [ATTORNEY FOR DEFENDANT]: That’s exactly—
BY [ATTORNEY FOR THE STATE]: It’s a different person. I’ve not asked this question.
BY THE COURT: Overruled.
BY [ATTORNEY FOR THE STATE]: (Continuing)
Q. How did a nine year old little gii'l get stabbed in her right eye?
A. Ma’am, I don’t know. Only thing I know is that I was tussling with Tamika [sic] Land. I—
Q. And did Dominique Land—
BY [ATTORNEY FOR DEFENDANT]: We’re going to object to her interrupting—
BY [ATTORNEY FOR THE STATE]: I’m sorry.
BY [ATTORNEY FOR DEFENDANT]: He was not finished with his—
BY [ATTORNEY FOR STATE]: Go ahead. Finish. I apologize.
BY [ATTORNEY FOR DEFENDANT]: Excuse me, your Honor. Can I just please get my objection finished before being interrupted?
BY THE COURT: Let him finish his objection.
BY [ATTORNEY FOR DEFENDANT]: Thank you. We object because she didn’t let him finish his answer.
BY THE COURT: All right.
BY [ATTORNEY FOR STATE]: I apologize profusely. Please continue.
BY THE COURT: All right. Sustained. Have you completed your answer?
BY THE WITNESS: No, sir.
BY THE COURT: All right. You may continue.
A. The only thing I know is me and Tamika [sic] Land was struggling with a knife. And I was trying not to be cut myself. And I seen her daughter one time, and that’s when she told her to go upstairs. Other than that, I didn’t have my mind on nobody.
BY [ATTORNEY FOR THE STATE]: (Continuing)
Q. So Dominique never came downstairs trying to get you off her mama?
A. She didn’t—
Q. Are you saying you never saw Dominique again?
BY [ATTORNEY FOR DEFENDANT]: Objection, your Honor.
A. Yeah, I seen her.
BY [ATTORNEY FOR DEFENDANT]: She won’t let him answer the question.
BY [ATTORNEY FOR THE STATE]: Okay. I’ll ask him again.
BY THE COURT: He didn’t finish the answer, so if you would repeat it.
BY [ATTORNEY FOR THE STATE]: (Continuing)
Q. Are you saying you never saw Dominique Land downstairs again when you were on top of her mama, that she wasn’t trying to get you off of her?
A. I really can’t remember, but when I knocked on the door I seen her then.
Q. Okay.
A. And as she was coming downstairs, or whenever she opened the door for me; her and her mother, that’s when her mother told her to go to sleep, go back to sleep.
Q. So Dominique could have come downstairs again?
A. Yes, she could have.
BY [ATTORNEY FOR DEFENDANT]: That’s an improper question, your Honor. It’s improper form. You can’t ask somebody if they could or couldn’t, if someone else could or couldn’t have done something. She knows that.
BY THE COURT: Sustained.
BY [ATTORNEY FOR THE STATE]: (Continuing)
Q. You don’t know if Dominique came downstairs again or not, do you?
A. I can’t remember, ma’am.
Q. Who stabbed Dominique in her eye?
A. I don’t know, ma’am.
Q. Did her own mama stab her in the eye?
BY [ATTORNEY FOR DEFENDANT]: That’s asked and answered, Judge. This is the third time she’s asked how did Dominique get stabbed in the eye.
BY THE COURT: Sustained.
BY [ATTORNEY FOR THE STATE]: I’m sorry.
BY THE COURT: He said he didn’t know. Move on.
BY [ATTORNEY FOR THE STATE]: (Continuing)
Q. Did you see her own mother stab her child in her eye?
A. No, ma’am.
Q. Did you see Dominique put a knife in her own eye?
A. No, ma’am.
Q. Now, you said that this tussle ensued and then you ran out the door and Tamika ran — I’m sorry. I’m calling her Tamika because you do. Tikeshia—
BY [ATTORNEY FOR DEFENDANT]: Excuse me, your Honor. That’s editorial commenting by the prosecutor—
BY [ATTORNEY FOR THE STATE]: Your Honor, I—
BY [ATTORNEY FOR DEFENDANT]: Explaining to the jury why she’s saying the things she’s saying.
BY THE COURT: Well, that was a natural thing.
BY [ATTORNEY FOR DEFENDANT]: That’s improper.
BY [ATTORNEY FOR THE STATE]: Your Honor, if I could get through this.
BY [ATTORNEY FOR DEFENDANT]: She can’t get through it improperly. We object.
BY THE COURT: Well, it was a natural mistake. Overruled.
BY [ATTORNEY FOR THE STATE]: Thank you.

¶ 9. Whitehead cites several cases to support his argument that the cumulative effect of trial court errors can amount to a denial of a fair trial. We agree that in some instances reversible error can occur. However, we do not find the singular errors in this case comparable to the errors in the cases cited by Whitehead. Nevertheless, for completeness, we briefly discuss each of them.

¶ 10. Whitehead first cites Brooks v. State, 903 So.2d 691, 700(¶ 36) (Miss.2005), in which the Mississippi Supreme Court reversed a defendant’s murder conviction after concluding, among other things, that he was denied his constitutional right to have counsel present at a lineup from which he was selected. Next, Whitehead cites Stringer v. State, 500 So.2d 928, 930 (Miss.1986), in which the Mississippi Supreme Court vacated and remanded the death penalty “because the prosecution improperly influenced the jury during the sentencing phase.” The court noted that no single action was egregious enough to warrant reversal; however, reversal was proper when the acts were considered in the aggregate. Id. at 930-31.

¶ 11. Finally, Whitehead cites Randall v. State, 806 So.2d 185, 234-35 (¶ 144) (Miss.2001), where the Mississippi Supreme Court reversed a capital murder conviction based on cumulative errors that occurred during the penalty phase of the trial. The defendant in Randall, along with four others, was indicted for capital murder; three of the co-indictees agreed to testify against Randall and the fourth indictee was convicted and sentenced to life in prison. Id. at 193 — 94(¶ 4). Randall argued that the trial court improperly allowed the prosecutor to repeatedly inform the jury that his co-indictee had been convicted by a separate jury on the same capital murder charge. Id. at 194(116). The supreme court found that the admission of testimony of a witness for the State which showed that the fourth co-defendant had been convicted by a separate jury on the same capital murder charge violated Randall’s right to a fail' trial. Id. Clearly, the prosecutor’s conduct in this case does not rise to the level of misconduct in Randall.

¶ 12. Whitehead also argues that he was “irredeemably robbed” of his right to a fair trial due to the following statements made by the prosecutor during her closing argument: “Now, you know, if you can figure — I want ya’ll to go back there. If ya’ll can figure out a way this woman managed to stab herself 25 times, please acquit him and let him go today.” In addition, Whitehead alleges misconduct in the prosecutor’s characterization of him as a coward. The prosecutor stated, “He admitted he’s a liar. He admitted he’s a coward. He fled. He was scared.” Defense counsel objected and the trial court sustained the objection. Whitehead contends that this alleged prosecutorial misconduct is analogous to the conduct in Bridgeforth v. State, 498 So.2d 796 (Miss.1986), where the Mississippi Supreme Court reversed a defendant’s armed robbery conviction and sentence of life imprisonment. However, we find Bridgeforth distinguishable because Bridgeforth’s conviction and sentence were reversed due to the prosecutor’s remarks about Bridge-forth’s failure to testify, which is clearly prohibited. Additionally, the court noted that the following statement made by the prosecutor was improper: “If I thought I could stand on my head and that would convince you to get this scum off the street, I’d do it.” Id. at 801.

¶ 13. Whitehead further contends that the prosecutor committed misconduct in stating that “[y]ou have absolutely no testimony from anyone that Ms. Land ever had any kind of weapon in her hand.” Whitehead argues that this statement is false because he testified that Tikeshia had a weapon in her hand at the time of the incident. Defense counsel objected, and the trial court sustained the objection and directed the jury to disregard the statement. Further, Whitehead argues that the prosecutor improperly stated that “[Andrea Howard] didn’t want to be here,” when Howard did not testify to that fact. Defense counsel objected, and again the trial court sustained the objection and instructed the jury to disregard the prosecutor’s statement.

¶ 14. While we concede that the prosecutor was overzealous in her representation of the State, we fail to see how Whitehead suffered any prejudice. Several witnesses, in addition to Tikeshia and Dominique, testified that Whitehead was the person they saw chase and stab Tikes-hia, and Dominique’s testimony alone is sufficient to support Whitehead’s conviction for stabbing her. Thus, there is substantial evidence to support Whitehead’s convictions. We cannot say that the prosecutor’s overzealousness impacted the jury’s verdict.

¶ 15. Finally, Whitehead argues that the prosecutor completely disregarded case law when she concluded her closing argument by stating, “You now, the 12 of you, will get to decide if we’re going to give protection to women and children in Hinds County against people — .” Defense counsel objected and moved for a mistrial. The trial court sustained the objection, but denied the motion. Whitehead contends that trial court erred in denying his motion because the prosecutor made a “send a message” argument, which is prohibited by the law of this state.

¶ 16. Whitehead cites Payton v. State 785 So.2d 267 (Miss.1999) to support his argument that the prosecutor committed reversible error. In Payton, the Mississippi Supreme Court reversed a defendant’s armed robbery, kidnapping, and arson convictions. Id. at 273(1120). The prosecutor made the following statement during his closing argument: “Send a message to these older, more mature, criminals, ‘[w]e are not going to let you ruin young people’s lives like you have ruined these three people’s lives, and all these lives you endangered in the process.’ ” Id. at 270(¶ 9).

¶ 17. Although the Payton court refused to adopt a per se reversible error rule, it held that “the use of the ‘send a message’ argument may, depending upon the surrounding circumstances, constitute reversible error on its own.” Id. at 271(¶ 14). The Payton court stated, “Standing alone, the district attorney’s use of the ‘send a message’ argument in this case would be reversible error because of the prejudice against Payton evidenced by his more severe sentence.” Id. at 272(1115). Payton and his codefendant were tried for the same crimes; however, the district attorney used a “send a message” argument toward Payton, while asking for leniency for Payton’s codefendant. Id. at 270(¶ 8). The jury returned a guilty verdict and Payton received two life sentences. Id. at 269(¶ 3).

¶ 18. In Spicer v. State, 921 So.2d 292, 318(¶ 55) (Miss.2006), the Mississippi Supreme Court held that in order to find reversible error in a prosecutorial comment, the court must determine “(1) whether the remarks were improper, and (2) if so, whether the remarks prejudicially affected the accused’s rights.”

¶ 19. While we agree that the prosecutor’s statement constituted a “send a message” argument and therefore was clearly improper, we find that the remarks did not prejudicially affect Whitehead’s right to a fair trial, because the evidence of Whitehead’s guilt is overwhelming. Thus, the prosecutor’s statement does not warrant reversal.

2, Rulings on Objections and Denial of Motion for Mistrial

¶ 20. In this assignment of error, Whitehead contends that the trial court allowed the State to improperly impeach one of its witnesses, Andrea Howard, .and that the State failed to show that the impeachment was related to a relevant issue. According to Whitehead, the State was required to show surprise or hostility prior to impeaching its witness. In support of his argument, Whitehead cites Wilkins v. State, 603 So.2d 309, 322 (Miss.1992), in which the Mississippi Supreme Court stated, “before a party will be authorized to introduce for impeachment purposes an unsworn pretrial inconsistent statement of his own witness, it will be necessary that he show surprise or unexpected hostility, and that such statement can never be used as substantive evidence.”

¶ 21. Based on Willcins, we agree that the State was required to show surprise prior to impeaching its witness. Our review of the record reveals that the State made no showing of surprise prior to attempting to impeach Howard and that Howard had not demonstrated any hostility at that point. Therefore, we agree with Whitehead that the State used an improper impeachment procedure. Nevertheless, we find that allowing the employed procedure constituted harmless error, because the matter which was the subject of the impeachment involved the location of the car that Whitehead drove to the scene of the altercation.

¶ 22. Whitehead cites Flowers v. State, 773 So.2d 309 (Miss.2000) for the proposition that the State was also required to offer proof that the inconsistent statement was relevant to an issue in the case. In Flowers, the court stated, “Then with the predicate properly laid, the witness may be impeached by showing prior statements inconsistent with the in-court testimony, so long as the statement made in court is one relevant to the issue in the case and therefore not collateral.” Id. at 326(¶ 57) (quoting Carlisle v. State, 348 So.2d 765, 766 (Miss.1977)). As we have already noted, the State’s impeachment of Howard concerned the location of the vehicle that Whitehead had driven to the complex prior to the commission of the crime. Howard’s testimony was clearly relevant since Whitehead left the crime scene in a vehicle driven by her, rather than in the vehicle that he had driven to the complex. We cannot find that Whitehead was improperly prejudiced because the State was entitled to impeach Howard, although it failed to do so in the proper manner.

¶ 23. Whitehead also argues that he was denied his right to a fair trial when the prosecutor asked whether his name was also on the automobile certifícate of title for the vehicle he shared with Howard. Whitehead contends that this question was asked in an effort to “paint a picture of [him] as worthless and freeloading, thereby prejudicing the jury.” Whitehead argues that what happened during his trial is similar to what occurred in Smith v. State, 457 So.2d 327 (Miss.1984), where the Mississippi Supreme Court reversed the conviction and sentence of a defendant due to several instances in which the district attorney asked questions clearly designed to inflame the jury. For example, during cross-examination of a witness for the defendant, the district attorney asked the witness whether she was selling her body in Jackson, like she had done when she lived on the coast. Id. at 334. The district attorney also impeached a witness’s credibility by referring to the witness’s omission of a matter in the first trial when he knew that the witness was abiding by a motion in limine. Id. at 335.

¶ 24. This Court fails to see how the prosecutor’s inquiry regarding whether Whitehead’s name was on the certificate of title compares to the inflammatory and prejudicial conduct of the district attorney in Smith. There is no merit to this contention.

¶25. Next, Whitehead argues that he was prejudiced by the prosecutor asking Howard whether she thought Whitehead “did or did not like cops.” We note, at the outset, that the prosecutor did not raise this issue initially and was simply following up on answers given by Howard in the following exchange:

Q. Okay. And what did he say when he called you on the phone?
A. He just said come pick him up around the corner, across the street.
Q. I’m sorry. Where?
A. He told me to pick him up across the street. He was around the corner.
Q. Across the street, where would that be?
A. He was out by the stop sign at the entrance into the apartment.
Q. Did you find that odd?
A. Kind of but not really, because I mean, it was police everywhere, and he don’t like police so he don’t go near them. So I knew he wasn’t going to go near police, so I didn’t find it odd.
* * * *
Q. Now, whenever you picked up the defendant on the corner at the stop sign because he didn’t like being around cops—

¶ 26. We fail to see how Whitehead suffered prejudice because of the prosecutor’s question. This contention is without merit.

¶ 27. Finally, Whitehead argues that the prosecutor improperly continued to use leading questions and to make personal comments to Whitehead’s attorney after the trial court had previously sustained his objections to leading questions and commentary. Whitehead relies on Lester v. State, 692 So.2d 755, 781 (Miss.1997) (overruled on other grounds) to support his argument that the prosecutor’s actions were “pervasive and poisonous and so fatally tainted [his] trial as to deprive [him] of his right to a fair and impartial trial.” In Lester, the defendant was convicted and sentenced to death in the capital murder of his one-year-old daughter. Id. at 765. The Mississippi Supreme Court reversed the defendant’s conviction and sentence because “[t]he combined effect of the prosecutor’s improper, irrelevant, and prejudicial cross-examination and closing argument was to unfairly prejudice Lester in the eyes of the jury.” Id. at 781. The prosecutor questioned the defendant about a previous grand larceny conviction, and “suggested during cross-examination and closing argument that the [defendant] didn’t abuse his daughter by Jeanette Shields only because he had not seen her since she was three months old.” Id. Specifically, the prosecutor stated, “And he didn’t even have a chance at that child, thank God. Because he never even saw it after it was three months old to the child’s ever-living glory. That child didn’t get abused because he wasn’t there long enough.” Id.

¶ 28. Whitehead directs our attention to the following exchange to support his contention that the prosecutor’s personal comments prejudiced him in the eyes of the jury:

BY [ATTORNEY FOR DEFENDANT]: We’re going to object to the leading again, your Honor.
BY [ATTORNEY FOR THE STATE]: Your Honor, did you know. I don’t know how much more than a non leading question could that be.
BY [ATTORNEY FOR DEFENDANT]: Well, she’s giving the answer in the question and she’s asking for a yes or no answer. That’s about as leading a definition as there is in the Rules of Evidence.
BY [ATTORNEY FOR THE STATE]: I appreciate the tutorial by [defendant’s attorney], but I think I know the Rules of Evidence.

¶ 29. This Court cannot agree with Whitehead that the prosecutor’s comment in the above quoted exchange was prejudicial to him. Furthermore, we cannot agree that the conduct was comparable to the prosecutor’s conduct in Lester or in any of the other cases cited by Whitehead. Therefore, we find no reversible error.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF COUNT ONE, AGGRAVATED ASSAULT, AND COUNT TWO, AGGRAVATED ASSAULT, AND SENTENCE OF CONSECUTIVE TERMS OF TWENTY YEARS ON EACH COUNT, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . Actually, Whitehead lists four issues. However, issues one, three, and four are interrelated, as each alleges a denial of due process and a denial of the right to a fair trial stemming from alleged acts of prosecutorial misconduct. We discuss these issues together. Whitehead's second issue involves the propriety of the trial judge's ruling on certain objections and the denial of Whitehead's motion for a mistrial, also due to alleged misconduct by the prosecutor. Although there is some interplay between this issue and the other three, we discuss this one separately.

      . Whitehead and Tikeshia had been involved in a sexual relationship for several weeks.

      . The Mississippi Supreme Court also found that the trial court allowed impermissible hearsay testimony and that the trial court erred in admitting gang-related evidence because the State failed to lay the proper foundation and that the State did not conduct the proper analysis as required by Rule 403 of the Mississippi Rules of Evidence. Id.

        . The Stringer court found the following errors sufficient to warrant reversal:

        (1) The introduction into evidence of photographs of the body of Nell McWilliams. (Note that Jimbo Stringer was previously convicted of the murder of Nell McWil-liams. Stringer v. State, 491 So.2d 837 (Miss.1986). This appeal stems from his trial for the murder of Ray McWilliams).
      (2) The display to the jury, during closing argument, of color slides of the body of Nell McWilliams.
      (3) The State’s attempt to prevent Stringer from calling John Mack Parker as a witness.
      (4) The prosecutor’s questioning during voir dire, to get a commitment from the jury to exclude certain mitigating factors from its consideration of the death penalty and his subsequent reminder to the jury of that promise, under oath, during closing argument.
      (5) The "last chance” argument, to influence the juiy to return the death penalty for the killing of Mrs. McWilliams.
      (6) The prosecution’s comment on Stringer’s failure to testify.

        Stringer, 500 So.2d at 930-31.

      . Howard was Whitehead's girlfriend at the time of the incident.


source: Caselaw Access Project

author: IRVING, J,

license: Public Domain

text:
    Odell PRINCE, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01597-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2007.

      Odell Prince, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   IRVING, J,

for the Court.

¶ 1. Odell Prince pled guilty to sale of cocaine and was sentenced to twenty years in the custody of the Mississippi Department of Corrections by the Kemper County Circuit Court. Thereafter, Prince filed a motion for post-conviction relief, alleging that his guilty plea was involuntary and that his attorney misled him. Finding no merit to the petition, the court denied post-conviction relief. Prince now appeals, alleging that his plea should be set aside for three reasons: because his plea was not voluntarily and knowingly entered, because the court erred in allowing him to plead guilty to sale of cocaine rather than conspiracy to sell cocaine, and because his attorney was constitutionally ineffective.

¶ 2. Finding no merit to these allegations, we affirm.

FACTS

¶3. Prince was charged with sale of cocaine and conspiracy to sell cocaine after another individual, Nathan Rush, sold co-' caine to an undercover police officer. Prince apparently had been contacted by the officer, who told him that she wanted to purchase cocaine. Prince did not want to sell the cocaine to the officer, but he told Rush about the proposed sale, and Rush indicated that he would be willing to sell the cocaine. Thereafter, Prince procured the cocaine and gave it to Rush. During his plea colloquy, Prince claimed that he told Rush not to sell the cocaine, but essentially admitted that he gave the cocaine to Rush with the knowledge that Rush intended to sell the cocaine. Prince had no other explanation for why he gave the cocaine to Rush.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Voluntariness of Plea

¶ 4. In his first contention of error, Prince claims that his plea was not knowingly and voluntarily entered. If Prince’s guilty plea was not entered knowingly and voluntarily, then it is not binding on him. Spry v. State, 796 So.2d 229, 231(¶ 6) (Miss.2001). In order for a plea to be voluntary, “[a] defendant must be advised concerning the nature of the charge against her and the consequences of her plea including the minimum and maximum sentences that may be imposed.” Hannah v. State, 943 So.2d 20, 25(¶ 12) (Miss.2006) (citing Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992)). A defendant must also be informed of the constitutional rights that a guilty plea waives. Id. When reviewing the petitioner’s plea colloquy, there is a “strong presumption of validity” attached to the statements made therein. See id. at 25(¶ 11) (Miss.2006) (citing Baker v. State, 358 So.2d 401, 403 (Miss.1978)). The burden is on Prince to show that his guilty plea was not voluntarily entered. Id.

¶ 5. A review of the record reveals that Prince was informed of the nature of the charges against him, and that he was informed of the possible minimum and maximum sentences that might have been imposed. Furthermore, it is clear that Prince was informed of the constitutional rights that he was waiving by pleading guilty. During his plea colloquy, Prince described his role in the cocaine sale. Although he equivocated, after a lengthy plea colloquy, Prince indicated that he wished to plead guilty to the sale of cocaine charge.

¶ 6. Prince points out that he cannot read or write, and that his attorney was aware of that fact. However, the transcript reveals that the court was also aware of this fact, as Prince admitted to the court that he could not read or write. Prince indicated that his attorney had read his guilty plea petition to him, and that he understood it as it was read to him.

¶ 7. Prince also claims that his plea was not voluntary because both the prosecutor and his attorney told him “that he would receive a(20) twenty year sentence with parole.” Nothing in the record supports Prince’s contention that the district attorney’s office told him he would be eligible for parole. Prince maintained at the hearing that his attorney had told him that he would be eligible for parole, but the court went to great lengths to make sure that Prince understood that, due to his habitual offender status, he would not be eligible for parole. It was only after being informed of this by the court that Prince pleaded guilty. Therefore, even if his attorney had informed him that he would be parole eligible, Prince could not have still harbored any illusions about parole eligibility when he pled guilty. Therefore, any misinformation that Prince may have received regarding whether he was eligible for parole did not impact the voluntariness of his guilty plea.

¶ 8. In his brief, Prince also contends that his attorney advised him to lie to the court: “Appellant alleges his attorney ad-viced [sic] him to tell the court that the plea has not been induced by promises or leniency, (when in fact it has).... ” Prince never specifies what he had been promised in return for pleading guilty. The only potential “leniency” raised by Prince in reference to his guilty plea is his averment that he was told he was parole eligible, a contention that we have already discussed. Any other inducement has not been disclosed by Prince. Furthermore, as he recognizes, Prince’s responses during the plea colloquy belie any allegation that his plea was the product of unfulfilled promises or some other inducement.

¶ 9. Prince argues in another portion of his brief that he was frightened into pleading guilty by statements made by the prosecutor during the guilty plea hearing. Specifically, Prince points to the fact that the prosecutor said that if he went to trial and were found guilty, he would serve his sentence “for the rest of his life until he closes his eyes in death.” However, nothing in the record indicates that Prince was frightened or upset by this statement. This Court finds it unlikely that Prince would have been so swayed by a single remark made in passing, especially since nothing other than Prince’s bare assertion in his appeal brief supports this contention.

¶ 10. Prince argues that he told the court more than once that he “lacked the full understanding of the consequences of his guilty plea.” We note that Prince did equivocate throughout the plea colloquy. However, taken as a whole, Prince appears to have understood the consequences of his guilty plea. The court was quite open about its intention to sentence Prince exactly according to the terms of the State’s plea bargain. Before choosing to enter a guilty plea, Prince knew that he would be sentenced to serve twenty years, and that he would be required to pay a variety of fines and court costs. Prince knew that it was possible that he would serve every day of his twenty-year sentence. Furthermore, Prince knew that he would be facing a mandatory life sentence if he was found guilty at trial. The court clearly explained to Prince why he was guilty of the sale of cocaine even though he did not actually sell the cocaine to the officer, an issue raised by Prince that will be discussed further below. Despite Prince’s occasional expressions of doubt or confusion, the colloquy reveals that he understood the consequences of his guilty plea, and that he carefully weighed those consequences before pleading guilty.

¶ 11. As support, Prince cites Baker v. State, 358 So.2d 401 (Miss.1978) for the proposition that there is no per se rule prohibiting collateral attack on a conviction rising from a guilty plea. While this is a correct statement of the Baker holding, Baker also noted that “we must severely limit the circumstance under which an apparently correct plea may be attacked.” Id. at 403. Clearly, Prince is being allowed his collateral attack on his conviction. Baker is of no help to him.

¶ 12. Prince also claims that he should have at least been entitled to an evidentia-ry hearing, and cites Dunn v. Reed, 309 So.2d 516 (Miss.1975) as support. However, in Dunn, the case was remanded because the circuit court had improperly dismissed for lack of jurisdiction. Id. at 517-18. Without discussing any details of Dunn’s allegations, the Mississippi Supreme Court noted that his allegations, if true, were sufficient to “require the issuance of the writ.” Id. at 517. The court then remanded the case for an evidentiary hearing. Id. at 518.

¶ 13. If there is no genuine issue of material fact, a court is not required to conduct an evidentiary hearing. Miss. Code Ann. § 99-39-19 (Rev.2000). The motion may be dismissed by the trial court when “it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the mov-ant is not entitled to any relief.” Id. The record here shows no genuine issue of material fact regarding Prince’s claims. Therefore, no evidentiary hearing was required.

2. Dismissal of the Conspiracy Charge

¶ 14. In this claim of error, Prince contends that the court erred in dismissing the conspiracy charge against him and in allowing him to plead guilty to sale of cocaine. Prince essentially claims that the facts he described do not constitute a sale of cocaine.

¶ 15. While it is true that Prince did not physically sell the drugs to the officer, he gave drugs to Rush knowing that Rush would sell the drugs to the officer. Prince’s recitation of events also indicates that Rush would not have known that anyone wanted to buy the cocaine without Prince’s intervention. The Mississippi Supreme Court has said that “to aid and abet in the commission of a felony, one must ‘do something that will incite, encourage, or assist the actual perpetrator in the commission of the crime.’ ” Jordan v. State, 918 So.2d 636, 649(¶ 25) (Miss.2005) (quoting Crawford v. State, 133 Miss. 147, 151, 97 So. 534 (1923)). Clearly, Prince encouraged or assisted Rush in the commission of the actual crime. Therefore, Prince could be held accountable as a principal for the sale of the cocaine. See id.

¶ 16. Prince also maintains that the district attorney’s office told him that it would only prosecute him for the conspiracy to sell the cocaine, not for the actual sale. Prince contends that, because of this, the State did not honor its plea bargain. We note that Prince never brought this up during the plea colloquy, despite being given ample opportunity to do so by the court. The court specifically informed Prince, more than once, that he was pleading guilty to the sale of cocaine. Furthermore, Prince agreed that his deal included the dismissal of the conspiracy charge in exchange for Prince’s plea of guilty to the sale of cocaine chai-ge. This contention is clearly without merit.

3. Ineffective Assistance of Counsel

¶ 17. There are two prongs that a defendant must meet in order to show that his counsel was constitutionally ineffective: first, the counsel’s performance must have been deficient, and second, the deficiency must have prejudiced the defendant’s case. Harrell v. State, 947 So.2d 309, 313(¶ 10) (Miss.2007).

¶ 18. Prince alleges that his attorney was ineffective for advising him that he was eligible for parole. Even if we were to accept that Prince has shown that his attorney advised him of this, Prince is wholly unable to meet the second prong of the above test, that this alleged deficiency prejudiced his defense. Any deficiency was corrected by the court, which made sure that Prince understood that he was not, in fact, eligible for parole. When he entered his guilty plea, Prince knew that he was not parole eligible. Therefore, any advice to the contrai-y from his attorney could not have prejudiced his case.

¶ 19. Prince also states that “his attorney told him to lie to the court, and tell the court that the guilty plea has not been induced by promises of leniency when in fact it has.” Prince again points to no alleged promise other than parole eligibility. As we have already found, this contention is wholly without merit.

¶ 20. Prince again asks for an eviden-tiary hearing to determine whether his counsel was ineffective. Since there is no genuine issue as to the effectiveness of his counsel, an evidentiary hearing is not necessary.

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

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


author: MYERS, P.J.,

text:
    Emily Louise Parker DeVITO, Appellant, v. Thomas Peter DeVITO, Jr., Appellee.
    No. 2006-CA-01108-COA.
    Court of Appeals of Mississippi.
    Oct. 16, 2007.

      Michael P. Younger, Brandon, attorney for appellant.
    J. Edward Rainer, Brandon, and John H. Emfinger, Jackson, attorneys for appel-lee.
    Before MYERS, P.J., BARNES, and ROBERTS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Emily Louise Parker DeVito and Thomas Peter DeVito, Jr. divorced after a six-year marriage, from which one minor child was born. Mr. DeVito was awarded custody of the child, and Ms. DeVito appeals this decision of the chancellor, asserting an abuse of discretion. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 2. This Court’s standard of review in domestic relations cases is established and clear. Child custody matters fall within the sound discretion of the chancellor. Sturgis v. Sturgis, 792 So.2d 1020, 1023(¶ 12) (Miss.Ct.App.2001). Therefore, a chancellor’s ruling will not be disturbed unless we find the decision was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Brekeen v. Brekeen, 880 So.2d 280, 283(¶ 4) (Miss.2004); Cooper v. Ingram, 814 So.2d 166, 167(¶ 2) (Miss.Ct.App.2002). “However, where the chancellor improperly considers and applies the Albright factors, an appellate court is obliged to find the chancellor in error.” Brekeen, 880 So.2d at 283(¶ 4) (quoting Hollon v. Hollon, 784 So.2d 943, 946 (Miss.2001)).

DISCUSSION

¶ 3. In the chancellor’s on-the-record analysis of the Albright factors, he found that eight factors favored Mr. DeVito and the remaining four factors did not favor either party. Specifically, the chancellor found that Ms. DeVito has an unstable work history and home environment, and awarded custody to Mr. Devito. Ms. De-Vito claims that the chancellor failed to consider under the Albright analysis certain evidence put forth regarding Mr. De-Vito’s moral fitness and employment history, and that this failure resulted in an improper award of custody to Mr. DeVito. Ms. DeVito alleges that the chancellor failed to properly consider Mr. DeVito’s viewing of pornography on two family computers, his veracity, his adultery in the presence of the child, and his spotty job history, before awarding custody to Mr. DeVito. Further, Ms. DeVito argues that the chancellor relied too heavily upon the testimony regarding her sexual behavior in denying her request for custody. Mr. De-Vito argues that the chancellor was correct in his decision to award custody because the decision was supported by credible evidence.

¶ 4. The chancellor found that Ms. De-Vito failed to prove her allegations against Mr. DeVito regarding his viewing of internet pornography on family computers and adultery. As a result, and combined with the evidence of Ms. DeVito’s admitted adultery, Mr. DeVito was favored on the moral fitness factor. Mr. DeVito was also favored in the analysis of the employment history factor, and Ms. DeVito challenges this finding, as well.

¶ 5. At trial, both parties called computer expert witnesses to testify regarding the pornographic images that were found on the family computers. Mr. DeVito’s expert testified that proper protocol regarding recovering the images had not been followed, and that he was unable to identify the computer user responsible for downloading the images. Mrs. De-Vito’s expert testified that he was unfamiliar with the proper protocol in insuring the integrity of the photographic images from the computers’ hard drives and that he was unable to identify the person responsible for placing the images on the hard drives. In analyzing the moral fitness factor of the Albright test, the chancellor found that this testimony was insufficient to base a finding that Mr. DeVito’s viewing of internet pornography weighed against him. We cannot disagree.

¶ 6. Also, during trial, Ms. DeVito sought to elicit testimony from Mr. DeVito and his alleged paramour regarding an affair. However, Mr. DeVito, as well as the person alleged to be his lover, denied having ever participated in a sexual or romantic relationship. No evidence was put forward by Mrs. DeVito proving otherwise. The chancellor found that Mrs. DeVito failed to prove that Mr. DeVito had committed adultery, and we cannot say, based on the evidence in the record, that the chancellor erred in making this finding.

¶ 7. As to Ms. DeVito’s argument regarding the chancellor’s placing too much emphasis on her admitted adultery in formulating the custody award, we recognize that the supreme court has held that sexual behavior, alone, is not enough to deny custody to a parent. Moak v. Moak, 631 So.2d 196, 197 (Miss.1994). While the chancellor did mention Ms. De-Vito’s admitted affair in the context of analyzing her moral fitness under Al-bright, the entire finding that Mr. DeVito was favored was not solely based on Ms. DeVito’s adultery. The chancellor also noted Mrs. DeVito’s alcohol use and traffic violations in the analysis. We do not find error in the decision of the chancellor to favor Mr. DeVito in the moral fitness analysis under the Albright test.

¶ 8. Ms. DeVito also challenges the chancellor’s analysis of each party’s employment and responsibilities of that employment. The chancellor found that Mr. DeVito had been employed with the same employer since December of 2003, as opposed to Mrs. DeVito’s five to six job transitions since that time. Further, the chancellor considered the hours each party was obligated to work, and noted that Ms. DeVito was required to work late two evenings a week. Based on this evidence, Mr. DeVito was favored in the analysis of the employment history factor. We cannot find that this decision was erroneous. In the present situation, we cannot find that the chancellor erred in finding that the interests of the child are better served in the custody of the father.

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

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


author: ROBERTS, J.,

text:
    Anthony DANIELS, M.D., Appellant, v. Emma C. BAINS, Appellee.
    No. 2006-CA-01608-COA.
    Court of Appeals of Mississippi.
    Oct. 23, 2007.

      Marty Craig Robertson, Alicia Clifton Baladi, attorneys for appellant.
    Jackye C. Bertucei, attorney for appel-lee.
    Before MYERS, P.J, BARNES, and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. Emma Bains sued Anthony Daniels, M.D. and sought to have Daniels declared the father of her daughter. A paternity test confirmed as much, and the county court ordered Daniels to pay child support, any of the child’s medical bills beyond that covered by insurance, the child’s college expenses, Bains’s attorney’s fees, and to maintain a life insurance policy on himself for the child. In some instances, the county court held that Daniels’s obligations extended beyond the child’s age of majority. Aggrieved, Daniels appeals and raises the following issues, verbatim:

I. WHETHER THE COUNTY COURT ERRED IN GRANTING VARIOUS FORMS OF CHILD SUPPORT WELL BEYOND THE CHILD’S STATUTORY AGE OF MAJORITY.

II. WHETHER THE COUNTY COURT ERRED IN GRANTING ATTORNEY FEES.

III. WHETHER THE COUNTY COURT ERRED IN ORDERING TONY TO PAY ONE-HUNDRED PERCENT OF HEALTH COVERAGE, INCLUDING DEDUCTIBLES ' AND OUT OF POCKET EXPENSES.

IV. WHETHER THE COUNTY COURT ERRED IN ORDERING TONY TO CARRY A $500,000 LIFE INSURANCE POLICY FOR THE CHILD.

V. WHETHER THE COUNTY COURT ERRED IN ORDERING TONY TO PAY THE CHILD’S COLLEGE EXPENSES BEFORE REQUIRED PREREQUISITES HAVE BEEN MET.

We find that the county court erred when it ordered Daniels to pay child support payments and other forms of support beyond the point that the child reaches the age of majority. As such, we reverse that portion of the county court’s decision. However, as to all other issues, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On November 30, 2004, Emma Bains gave birth to a daughter, Lillian. Bains filed a complaint against Anthony Daniels, M.D., for declaration of paternity, child support, and other relief in the County Court of Jackson County. Pursuant to an agreed order, the parties submitted to genetic testing. That genetic testing indicated a 99.99% probability that Daniels was Lillian’s biological father.

¶ 3. On February 14, 2005, Bains filed a motion for order of filiation, temporary support, and costs. Bains requested (1) that Daniels be declared Lillian’s father, (2) reimbursement of her out-of-pocket medical expenses associated with delivery, (3) temporary child support, (4) attorney’s fees, and (5) other costs. Daniels agreed to pay Bains $700 per month in temporary child support payments. The remaining issues went before the county court for a hearing on April 7, 2005. As a result of that hearing, the county court found Daniels to be Lillian’s father, ordered Daniels to pay Bains $800 per month in temporary child support, and ordered Daniels to reimburse Bains for her out-of-pocket medical expenses related to her pregnancy. The county court reserved ruling on the remaining issues until after the final hearing on the matter.

¶ 4. On January 5, 2006, the county court conducted that final hearing. Approximately four months later, the county court issued its findings of fact and conclusions of law. The county court ordered Daniels to (1) pay Bains $1,200 per month in child support, (2) add Lillian as a dependent on his health insurance policy or pay Bains $100 per month for health insurance premiums, (3) pay any and all deductibles and uncovered medical and dental expenses for Lillian, (4) obtain and maintain a $500,000 term life insurance policy on himself for the benefit of Lillian, (5) pay all costs of tuition and housing at a four-year in-state institution of higher learning for Lillian and one-half of the costs of graduate school, conditional upon Lillian’s grades, and (6) pay Bains’s attorney’s fees. Aggrieved by portions of the county court’s decision, Daniels appeals.

STANDARD OF REVIEW

¶ 5. The county court judge sat essentially as a chancellor in this case. We will not disturb a chancellor’s findings of fact unless they are not supported by substantial evidence. Pacheco v. Pacheco, 770 So.2d 1007, 1009(¶ 8) (Miss.Ct.App.2000). Additionally, we will not disturb a chancellor’s findings unless they were manifestly wrong or clearly erroneous. Vaughn v. Vaughn, 798 So.2d 431, 433(¶ 9) (Miss. 2001). We review questions of law de novo. Ladner v. Necaise, 771 So.2d 353, 355(¶ 3) (Miss.2000).

ANALYSIS

I. WHETHER THE COUNTY COURT ERRED IN GRANTING VARIOUS FORMS OF CHILD SUPPORT WELL BEYOND THE CHILD’S STATUTORY AGE OF MAJORITY.

¶ 6. Daniels takes issue with two particular provisions of the county court’s decision: his obligation to maintain a life insurance policy and his obligation to pay for certain educational expenses. In particular, Daniels draws our attention to the fact that those obligations may continue after the child reaches the age of majority. Daniels claims the county court committed reversible error. Bains concedes that the county court erred. Likewise, we agree.

¶ 7. The county court found that Daniels was to maintain life insurance on himself with Lillian as the beneficiary “until the minor child reaches the age of twenty-one, or as long as the minor remains a full-time student, whichever date is later, but in no event after the minor child reaches the age of twenty-five.” As for Lillian’s college expenses, the county court ordered Daniels to pay the cost of tuition and housing at an in-state four-year institution of higher learning and, should Lillian pursue a graduate degree, the county court obligated Daniels to pay one-half of those costs as long as Lillian maintains at least a B average. The county court did not make Daniels’s obligation to pay college expenses conditional upon Lillian’s age. As the court’s order reads, Daniels’s college expense obligation could continue after Lillian becomes twenty-one years old.

¶ 8. Section 93-11-65(8) of the Mississippi Code Annotated (Rev.2004) provides:

The duty of support of a child terminates upon the emancipation of the child. The court may determine that emancipation has occurred and no other support obligation exists when the child:
(a) Attains the age of twenty-one (21) years, or
(b) Marries, or
(c) Discontinues full-time enrollment in school and obtains full-time employment prior to attaining the age of twenty-one (21) years, or
(d) Voluntarily moves from the home of the custodial parent or guardian and establishes independent living arrangements and obtains full-time employment prior to attaining the age of twenty-one (21) years.

¶ 9. We find the county court erred when it obligated Daniels beyond the point at which Lillian becomes emancipated. However, we do not disturb any other portion of the county court’s findings of fact and conclusions of law. To be entirely clear, all findings of fact and conclusions of law will remain in effect as rendered, aside from the fact that they may not continue beyond the point at which Lillian becomes emancipated.

II. WHETHER THE COUNTY COURT ERRED IN GRANTING ATTORNEY FEES.

¶ 10. During the January of 2005 hearing, the county court addressed the question of whether Daniels would be responsible for Bains’s attorney’s fees. According to the county court, “Normally what I do on these attorney’s fees is, I’ll let her submit her affidavit for attorney’s fees and then give you some time to file any objections that you have to that and decide that at a later time as to how much.” Counsel for Daniels responded:

I wouldn’t object that [counsel for Bains] is fairly and accurately reporting her attorney’s fees. I certain[ly] believe that she is.
Now, whether or not my client could be responsible for all of those, we certainly take issue with, but no I — [counsel for Bains] is in good standing and a fine attorney. I’m sure she’s accurately reporting expenses.

Later, Daniels’s attorney stated:

As far as the court cost, Your Honor, we would just hope that when the Court— and again, [counsel for Bains] is a fine lawyer. She’s done a fine job for her client, but there’s nothing extraordinary about this case. It’s fairly straight forward. There was been, [sic] you know, as in every case there’s some level of extra cooperation it takes to make sure discovery and things like that are taken care. I would just hope that the Court would carefully take a look at the affidavit of my fine counsel opposite and just take a look at the line item and just consider, you know, the issues involved and whether or not the fee is reasonable. I think she’s correct that there is, you know, the putative father and now the proved biological father is responsible and required to pay a certain level of attorney’s fees.
But, you know, usually in the cases I’ve been involved with, you know, you’re not talking about the level of litigation that this case has involved. I mean, you’re talking about $750, $1,000 and the expenses. Although, I certainly believe she did the work, the Court would have to consider whether or not $7,500 is a reasonable] expense when it comes to a fairly ordinary paternity filiation action.

Counsel for Bains responded:

As far as my fee, it is directly related to the amount of time that has been required in this case. My bills are very clear. I’m sure there are plenty of phone calls and e-mails between myself and [counsel for Daniels] that did not even make it on to the bill. The reason that this bill is the amount it is largely due to the lack of cooperation from Dr. Daniels, having to force the issue of everything that he has been required to do, late payments required phone calls from my client to me, me to [counsel for Daniels]. This occurred on numerous occasions that the payments would not be on time. And so I would just say to the Court that the bill I’ve submitted is directly related to the time that’s been required largely due to Dr. Daniels’s lack of cooperation.

At that point, the county court allowed counsel for Bains to submit into evidence an itemized bill and affidavits from other attorneys who swore that Bains’s attorney’s fees were reasonable.

¶ 11. When the county court issued its findings of fact and conclusions of law, the county court awarded Bains $7,517.18 in attorney’s fees. In so doing, the county court stated, “Plaintiffs counsel has submitted an invoice for services related to this matter in the amount of $7,517.18. Defendant’s counsel has filed no objection.”

¶ 12. On appeal, Daniels claims the county court erred because it did not conduct an analysis of certain factors on the record. Daniels references the factors discussed in McKee v. McKee, 418 So.2d 764 (Miss.1982). The McKee factors are:

(1) the relative financial ability of the parties, (2) the skill and standing of the attorney employed, (3) the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, (4) the time and labor required, (5) the usual and customary charge in the community, and (6) the preclusion of other employment by the attorney due to the acceptance of the case.

Ellzey v. White, 922 So.2d 40, 42(¶ 6) (Miss.Ct.App.2006).

¶ 13. Daniels raises this argument for the first time on appeal. Failure to raise an issue in a trial court causes the operation of a procedural bar on appeal. Birrages v. Ill. Cent. R.R., 950 So.2d 188, 194(¶ 18) (Miss.Ct.App.2006). Though we are not obligated to further discuss this issue, we will do so to attempt to resolve what appears to be a potential conflict in precedent.

¶ 14. According to Mississippi Code Annotated § 93-9-45 (Rev.2004), “If the court makes an order of filiation, declaring paternity and for the support and maintenance, and education of the child, court costs, including the cost of the legal services of the attorney representing the petitioner ... and other costs shall be taxed against the defendant.” In that respect, the McKee factors do not appear to be an issue. However, there is precedent to support Daniels’s position.

¶ 15. In Ellzey, a paternity case, this Court reversed a chancellor’s decision to award attorney’s fees because the chancellor “failed to make a finding that [the mother] was unable to pay her attorney’s fees, a factor necessary in making such an award.” 922 So.2d at 42(¶ 6). Accordingly, this Court remanded the matter so the chancellor could “make specific findings.” Id. Section 93-9-45 was not mentioned in Ellzey. Instead, Ellzey relied on two divorce cases: Johnson v. Johnson, 650 So.2d 1281 (Miss.1994) and McKee v. McKee, 418 So.2d 764 (Miss.1982). Neither Johnson nor McKee were paternity cases and Section 93-9^5 and its seemingly automatic provision was not a factor in either case. In any event, assuming this issue was not procedurally barred, Ellzey suggests that we should remand this matter for specific findings regarding the McKee factors.

¶ 16. Approximately three months after this Court’s decision in Ellzey, the Mississippi Supreme Court considered whether a chancellor correctly awarded attorney’s fees incident to a paternity action in Dobbins v. Coleman, 930 So.2d 1246 (Miss. 2006). The father in Dobbins relied on McKee and argued that the chancellor unreasonably ordered him to pay the mother’s attorney’s fees. The Dobbins court held that the father’s reliance on McKee was “misplaced” and stated that, “While the awarding of attorney’s fees and costs appears automatic pursuant to the statute, we have held that those fees must be reasonable.” Id. at 1251(¶ 25) (citing R.E. v. C.E. W., 752 So.2d 1019, 1028 (Miss.1999)). Dobbins did not overrule Ellzey, but the two cases are in conflict. To the extent that this case and Dobbins conflict with our prior Ellzey decision, Ellzey is overruled.

¶ 17. Were this issue properly preserved for appellate review, we would follow Dobbins. As in Dobbins, Daniels’s reliance on McKee is misplaced. In the context of a paternity action, where it has been demonstrated that a man is the biological father of a child, and a trial court orders the father to pay the mother’s attorney’s fees, the only qualifier incident to that award is that the attorney’s fees must be reasonable. See Dobbins, 930 So.2d at 1251(¶ 25) (“While the awarding of attorney’s fees and costs appears automatic pursuant to the statute, we have held that those fees must be reasonable.”) However, as mentioned, Daniels never argued that Bains’s attorney’s fees were unreasonable. Accordingly, we cannot find that the circuit court erred.

III. WHETHER THE COUNTY COURT ERRED IN ORDERING TONY TO PAY ONE-HUNDRED PERCENT .OF HEALTH COVERAGE, INCLUDING DEDUCTIBLES AND OUT OF POCKET EXPENSES.

¶ 18. Daniels claims the county court erred when it ordered him to “be responsible for paying all deductibles and uncovered medical and dental expenses for the minor child.” According to Daniels, requiring him to pay all medical and dental expenses for Lillian is an abuse of discretion when analyzed in the totality of support required by the county court. Daniels submits that he and Bains should share medical expenses equally, because that will ensure that medical decisions will be made honestly and responsibly.

¶ 19. We cannot find that the county court erred. Pursuant to Mississippi Code Annotated § 93-11-65(2), “where the proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children in proportion to the relative financial ability of each.” The evidence indicated that Daniels had a monthly income roughly ten times that of Bains. Further, it is not inherently erroneous to order one parent to pay all medical expenses not covered by health insurance. See, e.g., Wilkerson v. Wilkerson, 955 So.2d 903, 911(¶ 25) (Miss.Ct.App.2007). Additionally, there is no reason to assume, as Daniels fears, that the child’s medical decisions will be made dishonestly or irresponsibly because there is no evidence that any single medical decision has ever been made as such. Under the circumstances, we find no merit to Daniels’s assertion.

IV. WHETHER THE COUNTY COURT ERRED IN ORDERING TONY TO CARRY A $500,000 LIFE INSURANCE POLICY FOR THE CHILD.

¶ 20. The county court required Daniels to maintain a $500,000 life insurance policy with Lillian as the beneficiary. Daniels submits that the county court committed reversible error. According to Daniels:

While a court’s ordering life insurance as part of child support is acceptable, how much is excessive? In addition to the amount of life insurance at issue, should any have been ordered at all if no evidence was given at trial regarding life insurance? The mother did not ask for [Daniels] to maintain a policy for the child’s benefit. No evidence was given at trial. The county court could not have given findings of fact and conclusions of law on the issues of life insurance because no testimony was presented at trial regarding that issue. Life insurance should not be ordered based solely on the pleadings.

Daniels also submits:

The county court erred in ordering [Daniels] to purchase a $500,000 life insurance policy with Lillian as the beneficiary. This puts Lillian in the unfortunate position of being better off financially if her biological father dies. Currently [Daniels] is required to pay $1,200 per month in child support. Lillian was born on November 30, 2004. As of November 30, 2006, Tony should be required to pay child support for at most nineteen more years, until Lillian turns twenty-one years of age or is emancipated. Twelve hundred dollars a month equals $14,400 annually that Tony pays in child support. When multiplied by the nineteen years left in support requirements, Tony will be paying $273,600 in support. While this analysis admittedly does not take into consideration other types of support, should Tony become deceased before Lillian becomes twenty-one, with the current life insurance order in place, she will be much better off financially than if Tony lives a full life. Under such circumstances, she would also be entitled to social security death benefits. This outcome is impermissible in this court of equity. The initial amount of $500,000 is excessive and should be decreasing as the child advances in age. A $250,000 decreasing term policy for Lillian’s benefit is more equitable.

¶ 21. Daniels’s attempt to quantify a father’s support is unpersuasive. First and foremost, Daniels’s argument is barred for lack of relevant authority. Daniels did include the following statement, “Parents may be ordered to pay additional amounts over and above child support for additional expenses such as ‘health insurance, out-of-pocket medical and other health-related expenses, life insurance, and expenses of a college education.’ ” Deborah H. Bell, Miss. Family Law § 10.07 (1st ed.2005) (quoting Nichols v. Tedder, 547 So.2d 766, 769 (Miss.1989)). This language does not support his argument that the county court erred when it ordered him to maintain a life insurance policy. Beyond that, Daniels cites no authority to support his argument. “Failure to cite relevant authority obviates the appellate court’s obligation to review such issues.” Bridges v. Kitchings, 820 So.2d 42, 49(¶ 27) (Miss.Ct.App.2002).

¶ 22. Further, as Daniels notes, a father’s support is not fully appreciable in a simple financial cost-benefit analysis. Under ideal circumstances, a father’s financial support is important, but a father’s overall support transcends mere financial support. It is difficult, if not impossible, to quantify the guidance, security, influence, stability, and love that only a father can provide. Besides his attempt at quantifying that support, Daniels does not claim that the county court acted inequitably when it ordered him to maintain a life insurance policy with a $500,000 benefit. It bears mentioning that Daniels maintains a life insurance policy in the names of his two children from a previous marriage. The death benefit incident to that policy is $1,000,000. Accordingly, each of his two children from a prior marriage would receive $500,000 in the event that Daniels died. Viewed in that light, the county court’s order is equitable and is in no way an abuse of discretion.

V. WHETHER THE COUNTY COURT ERRED IN ORDERING TONY TO PAY THE CHILD’S COLLEGE EXPENSES BEFORE REQUIRED PREREQUISITES HAVE BEEN MET.

¶ 23. The county court ordered Daniels to pay for all of Lillian’s college expenses. Daniels claims the county court erred. To be entirely clear, Daniels does not claim that he lacks the financial ability to send Lillian to college. According to Daniels, the county court’s order was premature because “We do not know the proof and circumstances of this case, and will not know the child’s aptitude for college, the mother’s ability to help pay for college, nor the relationship between Tony and the child, and will need to reserve these issues for a future hearing. A college education must be earned.”

¶ 24. “A chancery court may adjudge that one or both parents provide the means for a college education for their children.” Baier v. Baier, 897 So.2d 202, 205(¶ 16) (Miss.Ct.App.2005) (citing Pass v. Pass, 238 Miss. 449, 458, 118 So.2d 769, 773 (1960)). “When the father’s financial ability is ample to provide a college education and the child shows an aptitude for such, the court may in its discretion, after hearing, require the father to provide such education.” Id. “The parental duty to send a child to college is not absolute, however, but is dependent upon the proof and the circumstances of each case.” Id. (citing Hambrick v. Prestwood, 382 So.2d 474, 477 (Miss.1980)).

¶ 25. In Harmon v. Yarbrough, 767 So.2d 1069, 1071(¶ 6) (Miss.Ct.App.2000), this Court addressed a somewhat similar issue. In reaching its decision, the Harmon court noted that, according to the Mississippi Supreme Court, it is improper to impose an obligation to pay college expenses on a parent in a divorce proceeding until the following showing is made:

The duty of a father to send a child to college, under the circumstances of this case, is not absolute. It is dependent, not only on the child’s aptitude and qualifications for college, but on whether the child’s behavior toward, and relationship with the father, makes the child worthy of the additional effort and financial burden that will be placed on him. Sending children to college is expensive and can cause much sacrifice on the part of parents. It cannot ordinarily be demanded, but must be earned by children through respect for their parents, love, affection and appreciation of parental efforts, none of which are present in this instance.

Id. (quoting Hambrick, 382 So.2d at 477).

¶ 26. The Hannon court then found that “Since the duty is dependent upon several factors, including the child’s suitability for college and his or her relationship with the supporting parent at the time of the expenditures, it would normally be improper to impose that obligation when the child is only three years old.” Id.

¶ 27. Here, however, we are not dealing with a divorce case. In the context of a paternity action, a child may or may not have a prior relationship with his or her father. Placing a condition based upon the child’s behavior towards his or her biological father is unwarranted because the biological father may not have any interaction with the child at all. The child does not bear the sole responsibility for the relationship or the lack of a relationship with his or her father. It is noteworthy that Daniels did not request any visitation with Lillian. In that sense, we cannot find that the county court erred.

¶ 28. We further note that Daniels claims Lillian may not have the aptitude for college. According to Daniels, he should not be ordered to provide for a college education until Lillian displays an aptitude for college. While it may be premature to say that Lillian has an aptitude for college, it is likewise premature to say that she does not. In the event that Lillian does not attend college due to a lack of aptitude, Daniels will in no way have to pay for such expenses. As such, we cannot find that the county court abused its discretion.

¶ 29. THE JUDGMENT OF THE COUNTY COURT OF JACKSON COUNTY IS AFFIRMED IN PART, REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . "The county court, the circuit courL, or the chancery court has jurisdiction of an action under Sections 93-9-1 through 93-9-49. Miss.Code Ann. 93-9-15 (Rev.2004).


author: STUART, Justice.

text:
    STUDIO 205, INC. v. CITY OF BREWTON.
    1051801.
    Supreme Court of Alabama.
    April 13, 2007.
    J. Milton Coxwell, Jr., of Coxwell & Coxwell, Monroeville; and Jack B. Weaver of Weaver & King, Monroeville, for appellant.
    Edward T. Hines of Thompson, Garrett & Hines, L.L.P., Brewton, for appellee.
   STUART, Justice.

Studio 205, Inc. (“Studio 205”), appeals from the trial court’s denial of its petition seeking to enjoin the City of Brewton (“Brewton”) from removing five billboards belonging to Studio 205 that allegedly violated Brewton’s zoning ordinances. Initially, the trial court entered a temporary restraining order prohibiting Brewton from removing the billboards. However, at the conclusion of a bench trial, the trial court entered a final order denying the petition for a permanent injunction as to four of the five billboards. Brewton does not cross-appeal as to that part of the trial court’s order enjoining Brewton from removing one of the five billboards.

Facts

Studio 205 owns five outdoor off-premises signs, i.e., billboards, located within the police jurisdiction of Brewton. Each sign consists of three vertical poles inserted into the ground, two horizontal 2x6 wooden boards (“stringers”), which are 24 feet long and attached to the vertical poles, and the sign-message board (“the face”). The face consists of light-gauge metal panels attached to the stringers by clips. The five billboards had been in place for approximately 30 years at the time the present litigation began. In 1992, Brewton adopted a zoning ordinance regulating such signs; the ordinance “grandfathered” in existing signs, such as those belonging to Studio 205, even though they did not conform to the size or location requirements of the ordinance. The ordinance provided that the nonconforming signs could remain in place unless they were “destroyed” or became “fifty (50) percent or more structurally deteriorated as determined by the building inspector.” The ordinance provided that, if either of those events occurred, any replacement sign would be required to conform to the size and location requirements of the ordinance.

In September 2004, Studio 205’s billboards were damaged by Hurricane Ivan. Thereafter, Studio 205 rebuilt the signs without obtaining a permit from Brewton. Brewton requested that Studio 205 remove the rebuilt signs because Brewton believed, that the repairs to the signs were in violation of the ordinance. However, Studio 205 believed that the signs had not been “destroyed” or “fifty (50) percent or more structurally deteriorated” and, thus, that the signs were still within the grandfathering provision and exempt from the size and location requirements of the ordinance.

All the billboards the trial court declared to be “destroyed” or “fifty (50) percent or more structurally deteriorated” had had the entire face and at least one stringer replaced as a result of the damage caused by Hurricane Ivan. Three of the billboards had had one of the vertical poles replaced. Brewton’s building inspector testified that, in his opinion, the signs had either been destroyed or been rendered 50 percent structurally deteriorated as a result of the hurricane damage. He testified that he calculated the percentage of structural deterioration to an entire sign by assigning 45% to the face, 10% to the stringers, and 45% to the poles and then determining the percentage of structural deterioration to each part. He also testified that his definition of “destroyed” included extensive damage, including “pieces of the sign laying on the ground,” but he did not believe that something had to be beyond repair to be “destroyed.”

Standard of Revieiv

The parties dispute the standard of review this Court should apply on appeal. Brewton argues that whether the billboards were “destroyed” or became “fifty (50) percent or more structurally deteriorated” is purely a factual determination and, thus, that the trial court’s decision enjoys a presumption of correctness on appeal. .However, it appears that Studio 205 is not attempting to appeal based on any factual determinations made by the trial court, but is arguing only that the trial court misinterpreted the zoning ordinance. The trial court’s interpretation of the provisions of a statute or an ordinance is a determination of law, which is not entitled to a presumption of correctness on appeal. Clark v. Houston County Comm’n, 507 So.2d 902, 903 (Ala.1987).

Issue and, Analysis

Studio 205 contends that the trial court misinterpreted the ordinance, which allows nonconforming signs in existence on the date the ordinance was adopted to continue to exist as nonconforming signs subject to certain conditions. Specifically, Studio 205 argues that its billboards were not “destroyed” or “fifty (50) percent or more structurally deteriorated” and, thus, that Studio 205 was not required to rebuild the signs in conformance with the ordinance. Studio 205 explicitly states that, unlike similar cases decided by this Court, Studio 205 is not arguing that the terms of the ordinance are unconstitutionally vague.

The ordinance provides:

“§ 10.72. Nonconforming Signs. Any sign in existence on the date of adoption of this ordinance that is not in conformance with the requirements of this ordinance shall be considered a nonconforming sign and shall be permitted to continue to exist subject to the following conditions:
“If any nonconforming sign is removed or destroyed or becomes fifty (50) percent or more structurally deteriorated as determined, by the building inspector, then the replacement sign shall be in conformance with the requirements of this ordinance.”

(Emphasis added.)

The ordinance does not define the terms “destroyed” or “fifty (50) percent or more structurally deteriorated,” but the ordinance does define what constitutes a “sign.” A “sign” is

“[a]ny words, lettering, parts of letters, figures, numerals, phrases, sentences, emblems, devices, designs, trade names, or marks, or combinations thereof, by which anything is made known, such as the designation of an individual, a firm, an association, a profession, a business, a commodity, or product which are visible from any public way and used as an outdoor display, including any base or supporting structure.”

This Court has set forth the standard for interpreting such ordinances, as follows:

“City ordinances are subject to the same general rules of construction, as are acts of the Legislature. S & S Distrib. Co. v. Town of New Hope, 334 So.2d 905 (Ala.1976). In John Deere Co. v. Gamble, 523 So.2d 95, 99-100 (Ala.1988), this Court, quoting Clark v. Houston County Comm’n, 507 So.2d 902, 903-04 (Ala.1987), set out the following general rules of statutory construction, which also apply to the construction of municipal ordinances:
“ ‘ “The fundamental rule of statutory construction is to ascertain and give effect to the intent of the [city council] in enacting the [ordinance]. Advertiser Co. v. Hobbie, 474 So.2d 93 (Ala.1985); League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). If possible, the intent of the [city council] should be gathered from the language of the [ordinance] itself. Advertiser Co. v. Hobbie, supra; Morgan County Board of Education v. Alabama Public School & College Authority, 362 So.2d 850 (Ala.1978). If the [ordinance] is ambiguous or uncertain, the court may consider conditions which might arise under the provisions of the [ordinance] and examine results that will flow from giving the language in question one particular meaning rather than another. Studdard v. South Central Bell Telephone Co., 356 So.2d 139 (Ala.1978); League of Women Voters v. Renfro, supra.” ’ ”

Ex parte City of Orange Beach Bd. of Adjustment, 833 So.2d 51, 55-56 (Ala.2001).

In the present case, this Court must ascertain and then give effect to the intent of the Brewton City Council in enacting the ordinance and providing for its enforcement. This intent is clear on the face of the ordinance; thus, this Court need not go beyond the language of the ordinance itself. The ordinance unambiguously provides that the building inspector has the discretion to decide whether a sign is destroyed or 50 percent or more structurally deteriorated and that, if either of those events occurred, then any replacement sign must conform to the size and location requirements of the ordinance.

The trial court’s interpretation of the ordinance was correct. The trial court relied on the building inspector’s testimony that the four billboards were either destroyed or 50 percent or more structurally deteriorated, including the inspector’s explanation of how he reached this decision; the court then reviewed photographs of the billboards taken after the hurricane damage to ensure that the inspector’s decision was not arbitrary or unreasonable in light of the language of the ordinance. This action by the trial court is fully consistent with the intent of the Brewton City Council; thus, it is a proper interpretation of the ordinance.

In its argument to this Court, Studio 205 never addresses the discretion granted the building inspector by the ordinance. Studio 205’s only argument concerns the definitions of “destroyed” and “fifty (50) percent or more structurally deteriorated.” Studio 205 argues that it is unreasonable to construe the damage to its billboards as falling within either of those terms.

The common meaning of the word “destroy” includes “to ruin the structure, organic existence, or condition of ...; also: to ruin as if by tearing to shreds.” Merriam-Webster’s Collegiate Dictionary 339 (11th ed.2003). In the present case, it is undisputed that every billboard in question had, at least, its face and stringers ruined. According to the definition of a “sign” given in the ordinance, the face and stringers would constitute parts of the sign. Therefore, a decision by the building inspector that a sign is “destroyed” based on the fact that the face and stringers are completely ruined is not unreasonable, particularly in light of the building inspector’s testimony that the those parts constitute 55% of the structure.

With regard to whether the billboards were “fifty (50) percent or more structurally deteriorated,” Studio 205 makes much of the adverb “structurally.” Studio 205 interprets the insertion of the adverb to mean that the city council could have been referring only to damage to the vertical poles that support the face and stringers because, allegedly, “[i]mplicit in the term ‘structure’ is the concept of a supporting framework.” (Studio 205’s brief at p. 17.) Studio 205 argues that none of the damaged billboards could be 50 percent or more structurally deteriorated because not more than one out of the three vertical poles were destroyed on any one billboard. However, when the ordinance is viewed as a whole, Studio 205’s interpretation is far from the plainest interpretation. The ordinance states that “[i]f any nonconforming sign ... becomes fifty (50) percent or more structurally deteriorated ... then the replacement sign shall be in conformance with the requirements of this ordinance.” The ordinance does not state that if any nonconforming vertical supporting poles become 50 percent or more structurally deteriorated then the replacement sign shall be in conformance with the requirements of this ordinance. The ordinance specifically defines a “sign” to include not only the supporting vertical poles, but also the face of the sign and other structures that support the face (i.e., the stringers). Therefore, if all of these items viewed as a whole become 50 percent or more structurally deteriorated then the replacement sign must be constructed in conformance with the size and location requirements of the ordinance. This interpretation appears to be the one applied by the building inspector and accepted by the trial court, and it is the plainest interpretation. Therefore, Studio 205 has not set forth any valid reason to reverse the trial court’s judgment.

Conclusion

The judgment of the trial court is affirmed.

AFFIRMED.

COBB, C.J., and LYONS, BOLIN, and MURDOCK, JJ, concur.


author: WOODALL, Justice.

text:
    TA FINANCIAL, INC. v. DISCOVER BANK.
    1060301.
    Supreme Court of Alabama.
    April 13, 2007.
    Jay E. Emerson, Jr., of Higgs & Emerson, Huntsville, for appellant.
    Submitted on appellant’s brief only.
   WOODALL, Justice.

TA Financial, Inc. (“TA”), appeals from a default judgment against it awarding injunctive relief to Discover Bank (“Discover”) in an action filed by Discover against -TA and others. We reverse and remand.

On June 14, 2006, Discover filed a motion for a default judgment against TA based solely on TA’s failure to file, through counsel, an answer to Discover’s complaint. The motion indicated that the trial court would consider it at a hearing on June 22. Significantly, on June 21, counsel filed an answer on behalf of TA.

The record indicates that the hearing was held on June 22. However, the record does not include a transcript of that hearing. Subsequently, the trial court granted Discover’s motion and entered a judgment by default against TA for the injunctive relief sought by Discover.

TA, pursuant to Ala. R. Civ. P. 55(c), filed a motion to set aside the judgment by default. The motion was denied by operation of law pursuant to Ala. R. Civ. P. 59.1. TA then appealed to this Court.

TA argues that “the defect complained of by Discover [in its motion for a judgment by default] was rectified prior to the trial court’s order granting default.” TA’s brief, at 30. Our review of the record confirms that TA’s answer was filed before the hearing on the motion. Consequently, as Discover concedes in correspondence to this Court, “the filing of that answer cured the default before any default judgment was entered. Thus, the default judgment should not have been entered.”

For these reasons, the default judgment against TA is reversed, and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

COBB, C.J., and SEE, SMITH, and PARKER, JJ., concur.