author: COBB, Presiding Justice, for the Court.

text:
    Kirby DIES a/k/a Kirby Donovan Dies v. STATE of Mississippi.
    No. 2004-KA-01782-SCT.
    Supreme Court of Mississippi.
    April 20, 2006.

      Gary Street Goodwin, Columbus, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorneys for appellee.
   COBB, Presiding Justice, for the Court.

¶ 1. Kirby Donovan Dies is before this Court on appeal of his conviction for possession of cocaine in the Lowndes County Circuit Court. He was sentenced to serve eight years in the custody of the Mississippi Department of Corrections, and pay a $50,000 fine as habitual offender. On appeal, Dies argues that the trial court erred: (1) by overruling the defendant’s pretrial motion to dismiss for violation of the statutory 270-day rule; and (2) by denying the defendant’s motion to suppress evidence obtained as it was the result of an illegal seizure. Finding no merit to these arguments, we affirm the trial court.

FACTS

¶ 2. During the early morning hours of May 1, 2002, Agents Brent Young and Wes Stapp of the Mississippi Bureau of Narcotics (the agents) were dispatched to the Office Sports Bar (the bar) in Columbus, Mississippi. They had received a call about a “female of interest” who was either in possession of narcotics or trying to sell narcotics at that location. Upon arriving at the bar they parked in the parking lot located at the rear of the building. As they were pulling into the parking lot, Young noticed three individuals, one female and two males, sitting in a red cama-ro near the corner of the building.

¶ 3. The agents decided to wait for the individuals in the red camaro to exit their vehicle and enter the bar before they did the same, because Stapp had been a uniformed police officer in Columbus, and was concerned that he might be recognized. Other than the gender of the individuals in the vehicle, the agents were not able to ascertain any other descriptive information. The agents exited their vehicle and walked to a nearby window to look inside the bar to see if a woman matching the description that they were given was present. They did not see any such woman and therefore returned to their vehicle.

¶4. As they were returning to their vehicle they passed near the red camaro and noticed the distinct smell of burnt marijuana. The agents traced the smell back to the red Camaro which had its passenger window rolled-down one to two inches, and then contacted the Columbus Police Department and requested that a K-9 unit come to meet them. The agents agreed that they wanted to investigate further but not in the bar’s parking lot. They contacted the Columbus Police Department because they wanted to conduct a traffic stop away from their present location. The agents testified that the bar was about to close and the parking lot would soon be crowded with patrons, some under the influence of alcohol. Therefore, they desired a confrontation away from this environment. Further, they needed the Columbus Police Department’s assistance because they were in an unmarked vehicle and lacked the blue lights necessary to indicate a traffic stop.

¶ 5. Officer Wade Beard of the Columbus Police Department met the agents at the Creekstone Chevron, located across the street from the bar, where they had a full view of the exit and entrance to the parking lot. The agents told Beard that they smelled burnt marijuana in a parked ear and they wanted him to conduct a traffic stop along the roadway after the car left. They gave him a full description of the car and alerted him when it left. Beard followed the red camaro for a short period of time and then initiated his blue lights. The car did not immediately respond and continued down the street for approximately l/10th of a mile before pulling into a driveway of a residence that joined the road. The agents followed Beard but remained in support of him at a safe distance. Once stopped, an individual, later determined to be Dies, exited the driver’s side of the red camaro and fled on foot into the wooded area along the driveway. The agents pursued him, first by car and then on foot, into the wooded area.

¶ 6. The individual was located in the woods and placed under arrest for failure to yield, disobeying a police officer and resisting arrest. As the agents returned to the road with the arrested subject, they were informed by another officer that someone had dropped something on the ground. On the ground near the side of the road Young found several bags of a substance that later was identified as marijuana. There were five bags, four of which contained marijuana and one that was empty. Young then conducted a search incident to arrest of the subject and on his person found a sixth bag of a substance, which was in similar packaging to the ones that were found lying on the ground, and also discovered rolling papers and a powdery white substance which was later identified as cocaine.

I. THE 270-DAY RULE

¶ 7. Dies asserts that his statutory right to a speedy trial under Miss.Code Ann. Section 99-17-1 (Rev.2000) was violated, but does not assert a constitutional violation. The statute, commonly referred to as the 270-day rule, reads as follows:

•Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.

Miss.Code Ann. § 99-17-1 (Rev.2000). When the accused is not brought to trial within 270 days, absent good cause, the defendant is entitled to dismissal. Reynolds v. State, 784 So.2d 929, 933 (Miss. 2001). Dies alleges that the State violated the 270-day rule when he was indicted on August 9 and arraigned on August 23, 2002 but not tried until August 23, 2004. Therefore, Dies argues he is entitled to have his conviction reversed and the indictment dismissed with prejudice. We disagree, based on our careful review of the record, and the analysis which follows.

¶ 8. This Court has created a two-step test for dealing with 270-day rule analysis. The first step is to determine the total number of days between arraignment and trial. Manix v. State, 895 So.2d 167, 174 (Miss.2005); Sharp v. State, 786 So.2d 372, 378 (Miss.2001). For this purpose, the date of arraignment is not counted but the date of trial and weekends are counted unless the 270th day falls on a Sunday. Adams v. State, 583 So.2d 165, 167 (Miss.1991). The second step is to consider each delay separately, because only those delays attributable to the State count toward the 270 days. Manix, 895 So.2d at 174; Baine v. State, 604 So.2d 258, 264 (Miss.1992). For the second step this Court must determine which party is responsible for the delay and their reason. Sharp, 786 So.2d at 377.

¶ 9. The August 23, 2002, arraignment order was signed as “agreed” by state and defense counsel, and the trial was set for December 3, 2002. “The necessary time for the accused and his counsel to prepare his trial must necessarily be left largely to the sound discretion of the trial judge, bearing in mind the facts and circumstances of the particular case.” Sharp, 786 So.2d at 878 (quoting Wiley v. State, 582 So.2d 1008, 1012 (Miss.1991); Gilmore v. State, 225 Miss. 173, 189, 82 So.2d 838, 846 (1955)). This time period does not appear to be overly lengthy for preparation of a drug related offense and therefore does not count against either the State or Dies. See Sharp, 786 So.2d at 378. The trial court docket reflects that an agreed order of continuance was filed on December 4, 2002, apparently referring to an agreed order entered that date, setting Dies’ motion for a suppression hearing for February 10, 2003. A subsequent order, filed February 27, reset the suppression hearing for May 6, 2003, and counsel for both defense and prosecution agreed. The record is silent as to any hearing on May 6, which was a motion day, but an agreed order was signed and entered on May 13, 2003, stating that the state’s motion for trial setting, joined by the defendant, must be continued due to “case not set for trial/continued from motion day”, and setting for trial on May 27. Although the court docket indicates that an agreed order of continuance was signed and entered, nunc pro tunc, on May 30, 2003, continuing the trial date from May 27, 2003, until August 26, 2003, the order itself does not indicate agreement. However, the order states as cause for the continuance, that “the State was in trial in another cause, another Judge was not available to hear another jury trial, and Friday, May 30, 2003, is the last day of the present term of Circuit Court.” The court then ordered that the “cause be continued to the next term” and rescheduled the trial for August 26, 2003. The same problem arose on August 26, and another order of continuance was signed and filed, nunc pro tunc, on September 5, 2003, which continued the trial until November 18, 2003, similarly stating “the trial court was in trial on another cause, and there were no additional trial dates available in this term of court to hear this case.” Dies argues this delay was attributable to the State because the State can choose which case to bring and the trial court had the right to extend its term.

¶ 10. However, in both instances, the trial court found the motion was well taken and issued the continuance. No challenge to these continuances, nor the reason they were ordered, was raised by Dies. This Court has held that even though the statutory 270-day rule exists to protect a defendant’s rights, it does not relieve the defendant from the obligation of vigorously pursuing them. Walton v. State, 678 So.2d 645, 650 (Miss.1996). Dies failed to object to the State’s requests for continuances and only pursued his speedy trial right on June 3, 2004, after nine continuances had been granted. Although a defendant may have the right to procure a speedier trial than that afforded to him by the State, this Court does not reward him who sits on his rights.

¶ 11. A trial court’s finding that a motion for continuance is well taken, is the equivalent of a judicial finding of good cause. Reynolds, 784 So.2d at 933. A trial court’s finding of good cause is a finding of fact and should be treated on appeal as such; therefore a reviewing court should not disturb it where there is substantial credible evidence in the record supporting that finding. Walton, 678 So.2d at 649 (citing McNeal v. State, 617 So.2d 999, 1007 (Miss.1993); Folk v. State, 576 So.2d 1243, 1247 (Miss.1991)). Likewise, this Court will not affirm a trial court’s finding of fact if the trial judge applied an erroneous legal standard. Walton, 678 So.2d at 649 (citing Leatherwood v. State, 539 So.2d 1378, 1387 (Miss.1989)).

¶ 12. This Court has held that a trial court’s decision to grant a continuance because of docket congestion did not abuse this standard. Sharp, 786 So.2d at 378. However, there must be more than just a bald faced statement without some further substantiation. In Vickery v. State, 535 So.2d 1371, 1375 (Miss.1988), the trial court entered boilerplate orders stating simply “[f]or good cause shown the following numbered criminal cases are continued to the next regular term of this court, said causes are numbered on the docket of this court as follows.... ” The orders then listed as many 126 cases which were to be continued to the next term. This Court held that the trial court’s actions in entering 8 “bland and generic” orders such as this circumvented the statute and was tantamount to abolishing it. Vickery, 535 So.2d at 1375. The orders for continuance in the present case contained specific explanations as to why they were granted, and only addressed the present case and are in no way analogous to the “bland and generic” orders decried in Vickery. See Walton, 678 So.2d at 649. Our review of the record leads to the conclusion that there was substantial evidence of real docket conflicts and congestion which meets the standard of “good cause shown”. Thus, these delays meet the standard set in Section 99-17-1, and the clock stopped against the State and did not count toward the 270-day rule.

¶ 13. The next delay, from November 18, 2003 until December 3, 2003, is unaccounted for by the record. There is no indication in the record why this delay occurred and fault was not assigned. When the record is silent as to the reason for delay, the clock runs against the State; this Court has held that the State bears the risk of non-persuasion as to good cause. Nations, 481 So.2d at 761. Therefore, this 15-day period counts against the State.

¶ 14. The clock is tolled from December 3, 2003 until February 17, 2004 because Dies’ attorney requested a continuance due to a conflict with another trial. See Baine, 604 So.2d at 264. The next period from February 17, 2004 until February 19, 2004, was due to a conflict in scheduling with one of the State’s forensic experts. This two-day period does not count against the State. This Court has held that the absence of a material witness falls within the definition of good cause. Sharp, 786 So.2d at 380. Therefore, the absence of the State’s forensic expert qualifies as good cause.

¶ 15. The next order of continuance signed and filed, nunc pro tunc, on February 27, 2004 stayed the proceeding from February 19, 2004 until May 13, 2004, because Judge Lee J. Howard was involved in a bench trial on February 19, and “this is a case which must be tried by Judge Howard, as Judge James T. Kitchens was an Assistant District Attorney when this case was indicted by the grand jury.” Although we find no precedent directly on point regarding such reason for delay, the Court of Appeals dealt with a similar issue in Alexander v. State, 841 So.2d 1138 (Miss.Ct.App.2002). In Alexander the two circuit judges in Tippah County were forced to recuse themselves prior to trial, and another judge had to be appointed to hear the case. Alexander, 841 So.2d at 1145. Because, the replacement judge had his own docket and caseload from another circuit he could not immediately hear the defendant’s case. Id. The Court of Appeals found that the delay caused by seeking a new judge could not be attributed solely to the State. Id. The present case is clearly analogous to that situation, and finding the Court of Appeals’ approach legally sound, we hereby adopt it. At present, it is clear that the original judge’s retirement and his replacement by the assistant district attorney who was prosecuting this case was no fault of either the State or Dies, but rather was an act required to protect the rights of the defendant. Thus, we hold that the delay necessitated by Judge Howard’s scheduling conflict is good cause shown. The reason for the next continuance, from May 13, 2004 until May 25, 2004, entered by the court “sua sponte” and joined by the State, is unexplained. Therefore, those 12 days are assessed against the State. Nations, 481 So.2d at 761.

¶ 16. The trial court issued the next continuance, moving the trial from May 25, 2004 to August 17, 2004, again because the trial of another case carried over into that date, and the court found “there are no additional dates left during this term of Court on which this cause can be tried.” As discussed supra, this time is not assessed against the State, because good cause existed for the continuance.

¶ 17. The final continuance was ordered upon motion of the State, moving the trial date to August 23, due to the unavailability on the 17th of both agents Wes Stapp and Brent Young, one having been subpoenaed to testify in Arkansas before a federal grand jury and the other for medical purposes. This seven day period does not count against the State. This Court has held that the absence of a material witness falls within the definition of good cause. Sharp, 786 So.2d at 380. Therefore, the absence of the State’s key law enforcement witnesses qualifies as good cause.

¶ 18. The trial started on August 23, 2004, thereby ending the time period for calculation of the 270-day rule. Upon careful review of record, we conclude that of the 731 days between the date of Dies’ arraignment and the trial, only 47 must be assessed solely to the State. Agreed continuances account for 281 days. Of the remaining delays, 76 days were attributable to Dies, and the remaining 327 days were excused for good cause shown, pursuant to Section 99-17-1. There is no merit to Dies’ argument that the 270-day rule was violated.

II. SUPPRESSION OF EVIDENCE

¶ 19. Dies argues that the evidence obtained as a result of the traffic stop and his subsequent arrest should have been suppressed. He argues that the traffic stop was illegal because it was not based on reasonable suspicion and therefore, all evidence subsequently obtained was fruit of the poisonous tree. In the alternative, Dies argues that his arrest was illegal because the agents lacked probable cause to initiate a warrantless arrest.

¶ 20. In reviewing this issue, this Court adopts a mixed standard of review. Determinations of reasonable suspicion and probable cause should be reviewed de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Floyd v. City of Crystal Springs, 749 So.2d 110, 113 (Miss.1999). However, this Court is restricted to a de novo review of the trial judge’s decision based on historical facts reviewed under the substantial evidence and clearly erroneous standards. Floyd, 749 So.2d at 113.

¶21. This Court has found that the Fourth Amendment to the United States Constitution and Article 3 Section 23 of the Mississippi Constitution contain almost identical language expressing an individual’s right to be free from unreasonable searches and seizures. Id. at 114. This prohibition applies equally to seizures of the person and brief investigatory stops including those of a vehicle. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). This Court has opined that a police officer’s law enforcement activities can be divided into three types:

(1) Voluntary conversation: An officer may approach a person for the purpose of engaging in a voluntary conversation no matter what facts are known to the officer since it involves no force and no detention of the person interviewed; (2) Investigative stop and temporary detention: To stop and temporarily detain is not an arrest, and the cases hold that given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest; (3) Arrest: An arrest may be made only when the officer has probable cause.

Singletary v. State, 318 So.2d 873, 876 (Miss.1975).

¶ 22. This Court has held that a person may be detained short of a full arrest for investigatory purposes. Jones v. State, 841 So.2d 115, 125 (Miss.2003). The constitutional requirements for an investigative stop are less stringent than those for a full arrest. Floyd, 749 So .2d at 114. This Court allows an investigative stop as long as an officer has “reasonable suspicion, grounded in specific and articu-lable facts, that a person they encounter was involved in or is wanted in connection with a felony ... or as long as the officers have some objective manifestation that the person stopped is, or is about to be engaged in criminal activity.” Id. (internal citations omitted). This Court must consider, in taking into account the totality of the circumstances, whether the officer had a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” Id. (citing Cortez, 449 U.S. at 417-18, 101 S.Ct. 690).

¶ 23. In Miller v. State, 373 So.2d 1004, 1006-07 (Miss.1979), this Court first addressed the issue of the plain smell corollary to the plain view doctrine. In Miller, this Court found the sense of smell to be no less important or trustworthy than the sense of sight. Id. at 1006. It was in Miller that this Court first stated that probable cause may come from any one of an officer’s five senses, including an officer’s sense of smell. Id. at 1007. If an officer clearly smells contraband, such as marijuana, that smell can give rise to the probable cause necessary to search a vehicle and its passengers. Boches v. State, 506 So.2d 254, 264 (Miss.1987). Because smell alone can give rise to a search of the passengers and compartment of a stopped vehicle, it also can give rise to the lower standard for reasonable suspicion and support an officer’s desire to further his investigation of the recent passengers of a vehicle.

¶ 24. The record clearly reflects that the agents identified the smell of burnt marijuana, and them experience with the Mississippi Bureau of Narcotics exposed them to that smell on multiple occasions. They were able to trace the smell back to the red camaro through an open window. They came to this knowledge while remaining outside of the vehicle in space that was open to the public. The agents in no way entered into a space in which Dies had a reasonable expectation of privacy. The smell of burnt marijuana coming from an identified location, such as a car, creates enough articulable fact to give rise to a reasonable suspicion that criminal activity had been committed and that further investigation is warranted. Police officers have a duty not only to search out those who commit reported crimes but also to investigate unreported activity whenever circumstances indicate that they should. Floyd, 749 So.2d at 117 (citing United States v. West, 460 F.2d 374, 375-76 (5th Cir.1972)). The Fourth Amendment does not require police who lack the information necessary for probable cause to simply shrug their shoulders and allow a crime or a criminal escape to occur. Rather, it allows for investigatory stops to encourage the police to pursue their reasonable suspicions. Singletary, 318 So.2d at 877.

¶25. The agents took appropriate actions given the circumstances. Dies argues that because the agents were unable to identify the individuals who were in the car when they arrived at the bar as the same ones who later were pulled over by Officer Beard, their traffic stop was illegal. That assertion is incorrect. The two events are not too remote in time to dull the reasonable suspicion that was present. When the agents arrived at the bar, they witnessed three people sitting in the red camaro. Shortly after their arrival those individuals left and went inside the bar. A short time after that, the agents perceived the smell of burnt marijuana and traced it to its source, thereby tying their reasonable suspicion to the vehicle and its recent occupants.

¶ 26. The agents remained in surveillance of the red camaro for forty-five minutes. Admittedly, they could not see if anyone else came or went from the vehicle but they were aware that it did not leave the parking lot during that time. It is reasonable to believe that the individuals who were in the vehicle when the agents arrived were the same ones who would leave forty-five minutes later in that same vehicle. The time period here is not long enough to negate the agents’ reasonable suspicion.

¶27. Dies argues that the subsequent traffic stop was illegal and points to Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) and United States v. Escalante, 239 F.3d 678, 680-81 (5th Cir.2001) for support. Dies argues that Beard’s traffic stop was pretextual, but then claims that Beard lacked the pretext to stop him. However, both Whren and Escalante are factually distinguishable from this case. In both those cases, the officer had a hunch that some type of criminal activity was occurring but was not aware of what that activity was; therefore, he used the pretext of a traffic stop for a valid traffic violation to further his investigation. In the present case that was not the intention or the purpose of the traffic stop. In the present case the traffic stop was based on the reasonable suspicion that illegal narcotics were being used. That was the crime the agents sought to investigate. They did not need to perform a pretextual stop. Therefore, we find the agents had the right to stop Dies.

¶ 28. The agents did not use the traffic stop to search for evidence of wrong doing but rather to confirm their reasonable suspicion that already existed. They chose a traffic stop because of the exigencies of the circumstances. They knew the bar was going to close and that soon the parking lot would be filled with patrons, some under the influence of alcohol. A confrontation in the parking lot would have increased the risk to their person beyond what was expected during a traffic stop. Also, if the occupants recognized the agents waiting for them, they might not have returned to the red camaro. Therefore, this is acceptable police behavior.

¶ 29. Dies also argues that any reasonable suspicion the agents may have possessed was not transferred to Beard who performed the traffic stop; therefore, Beard’s stop was illegal. We do not agree with this argument. This Court has held that reasonable suspicion and probable cause can be transferred from officer to officer and police department to police department. Jones, 841 So.2d at 126. This Court clearly laid out the history of this in Jones:

The reasonable belief of WCSO of Jones’s involvement in the murder could be transferred to Memphis police. In Williams v. Lee County Sheriff's Department, 744 So.2d 286 (Miss.1999), this Court held that officers in Mississippi were entitled to rely on information they received from California law enforcement authorities who informed them that a murder had been committed in California and that a person with the defendant’s social security number and physical characteristics had committed it. See also Hamburg v. State, 248 So.2d 430, 432 (Miss.1971) (information provided to arresting officer by law enforcement source provided sufficient probable cause to make an arrest); Parks v. State, 180 Miss. 763, 178 So. 473 (1938) (where information of a crime provided by sheriff of one county to sheriff of another county held sufficient probable cause to justify warrantless arrest by the former). An officer’s reliance on computer reports, radio communications, and dispatcher information have been held to confer sufficient probable cause for arrest. See Mitchell v. State, 792 So.2d 192 (Miss.2001) (radio communication); Jones v. State, 481 So.2d 798 (Miss.1985) (radio); Hodge v. State, 801 So.2d 762 (Miss.Ct.App.2001) (computer report); Jones v. State, 799 So.2d 171 (Miss.Ct.App.2001) (dispatcher). Moreover, it is settled law in Mississippi that an informant may provide officers with sufficient probable cause to make a warrantless arrest. See Abram v. State, 606 So.2d 1015 (Miss.1992); Moore v. State, 493 So.2d 1295 (Miss. 1986), Jones v. State, 358 So.2d 414 (Miss.1978). There is no reason why information received from another law enforcement official, who has a sworn duty to uphold the law, should be any less reliable than information received from an informant who’s credibility, in many situations, is uncertain.

Jones, 841 So.2d at 126-27.

¶ 30. Clearly suspicion and probable cause can be transferred among law enforcement personnel. When the agents described the information they had obtained to Beard and requested his help with a traffic stop, their reasonable suspicion transferred to him. Therefore, when Beard acted, he did so with the reasonable suspicion that the agents had given to him.

¶ 31. Dies also argues his arrest was illegal because the agents lacked probable cause. Dies argues that if the agents lacked probable cause to arrest him at the time of the traffic stop, he could not have been later arrested for resisting arrest. This Court held that if a suspect flees from the police when he has been detained on reasonable suspicion, the officers acquire probable cause to effectuate an arrest. Mitchell v. State, 792 So.2d 192, 204 (Miss. 2001) (citing Sibron v. New York, 392 U.S. 40, 66-67, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968)). The agents possessed reasonable suspicion that Dies was engaged in criminal activity. His flight from Beard created the probable cause for which he was lawfully arrested.

¶ 32. This Court finds that both the seizure and arrest of Dies were legal. The agents possessed reasonable suspicion that Dies was engaged in criminal activity. They transferred this reasonable suspicion to Beard who sought to aid by performing a traffic stop for the purposes of furthering the investigation. When Dies fled from the traffic stop the agents had the probable cause necessary to arrest him. Therefore, the evidence subsequently found on his person was admissible against Dies and was not fruit of the poisonous tree.

CONCLUSION

¶ 33. The trial court correctly denied Dies’ motion to dismiss because there was no violation of the statutory 270-day rule. Further, Dies’ seizure and arrest were legal. Therefore we affirm Dies’ conviction and sentence.

¶ 34. CONVICTION OF POSSESSION OF COCAINE IN AN AMOUNT GREATER THAN .1 GRAM BUT LESS THAN 2 GRAMS AND SENTENCE OF EIGHT (8) YEARS, AS AN HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND PAYMENT OF A FINE OF $50,000.00, AFFIRMED. SAID SENTENCE SHALL NOT BE REDUCED OR SUSPENDED, NOR SHALL SAID APPELLANT BE ELIGIBLE FOR PAROLE OR PROBATION.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON AND DICKINSON, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . This Court has been clear that the clock starts at the time of arraignment and not at the time of arrest. Handley v. State, 574 So.2d 671, 674 (Miss. 1990). The time period prior to arraignment is not relevant in 270-day rule cases. Nations v. State, 481 So.2d 760, 761 (Miss. 1985).

      . The transcript of the trial reflects that Dies’ suppression motion was heard on the day of trial.

      . Judge Kitchens was appointed to fill the vacancy which occurred upon the retirement of Judge John M. Montgomery, to whom this case was first assigned.


source: Caselaw Access Project

author: BARNES, J., for the Court.

license: Public Domain

text:
    M.W.F., Appellant v. D.D.F., Appellee.
    No. 2003-CA-02642-COA.
    Court of Appeals of Mississippi.
    July 26, 2005.
    Rehearing Denied Oct. 11, 2005.
    Billy Parlin, attorney for appellant.
    Darryl A. Hurt, Jr., Lucedale, attorney for appellee.

      Before KING, C.J., CHANDLER and BARNES, JJ.
   BARNES, J., for the Court.

¶ 1. M.W.F. argues that the lower court’s findings of fact were insufficient to grant his wife a divorce on the ground of habitual, cruel and inhuman treatment. Based on a review of the evidence adduced at the hearing, we find that the chancellor did not commit manifest error in awarding D.D.F. the divorce. The judgment of the Chancery Court of Greene County is, therefore, affirmed.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. D.D.F. filed her complaint for divorce against her husband M.W.F. on February 25, 2003. The parties had been lawfully married for eighteen years and had two daughters, aged seventeen and fifteen. D.D.F. sought a divorce on the ground of habitual, cruel and inhuman treatment. The matter came on for hearing on October 9, 2003, the parties agreeing to bifurcate the issues and to try first the ground for divorce. M.W.F. and D.D.F. were both present and represented by counsel. M.W.F., D.D.F., and their oldest daughter, Jane, were the only witnesses.

¶ 3. D.D.F. testified that the marriage deteriorated in the three years prior to the parties’ separation. At the beginning of that period, Jane informed her mother that when she was approximately six years of age, she had been molested by M.W.F.’s brother, who was approximately thirteen years of age at the time of the molestation. D.D.F. had previously noticed that Jane was never around when her uncle was present and wondered why. D.D.F. informed M.W.F. of Jane’s accusation against his brother and became “furious” when M.W.F. did nothing. M.W.F. continued to invite his brother to the family home, on occasion even for overnight visits. D.D.F. testified that after they learned of Jane’s accusation, M.W.F. allowed his brother to visit in their home approximately once a month. Although D.D.F. asked M.W.F. not to allow his brother back into their home, he refused. D.D.F. testified that she and M.W.F. constantly fought over the matter, with D.D.F. telling M.W.F. that it was unfair to Jane to allow him in their home. At times, the children would hear these arguments, and occasionally Jane “would become a part of it ... because she knew that it was about ... the issues that ... had happened with her.”

¶ 4. D.D.F. testified that every time MW.F.’s brother came to the house, Jane “kept herself locked in her bedroom. Very seldom did she ever come out of her room any time that he was ever in the home.” D.D.F., herself, was “depressed all of the time. It made me feel like ... [M.W.F.] never cared about me or his daughters.” She testified that her blood pressure worsened, and her medication was increased; D.D.F. attributed the increase to the stress of her constant arguing with M.W.F. D.D.F. testified that the couple’s relationship “steadily deteriorated” and “got horribly worse” because she felt that M.W.F. was continuously putting his brother’s needs over his own child and that M.W.F. “turned his back” on her and the children. Towards the end, D.D.F. “could not even bring [herjself to even look at [M.W.F.] with any kind of feelings of the way [she] used to, of loving him for the loving father that he was supposed to be, or the loving husband that he was supposed to be. That no longer existed for [her]. Not after [she] saw ... what happened over and over again, with him allowing a person that had molested his child into the home.” D.D.F. testified that she did not confront her brother-in-law herself because M.W.F. told her not ever to discuss the matter with “his family, that he would take care of it if he thought that was something that needed to be done. And it was never t[aken] care of.” Finally, just before the separation, D.D. F. informed M.W.F. that she was “just ... not going to allow this to be around my daughter anymore.”

¶ 5. D.D.F. further testified that in this three-year period, M.W.F.’s alcohol consumption became “excessive.” She described that on the days he was off work, M.W.F. would drive to Alabama, buy an eighteen-pack of beer and consume it “probably before the night was over. And this was continuously.” She testified that M.W.F. would “practically pass out ... almost every night from drinking excessively.” The children stopped inviting their friends to the house and stopped having M.W.F. go anywhere with them. D.D.F. recounted once instance just before the separation, when she and the younger daughter were riding in the car with M.W.F. to Mobile; D.D.F. realized that he was too intoxicated to drive. He “couldn’t even remember what road he was on.” He pulled over and allowed D.D.F. to drive only after she threatened to open the door and get out of the car; the younger daughter was “scared ... to death.” D.D.F. testified that she repeatedly asked M.W.F. to stop drinking and finally “asked him to choose between his alcohol and his family;” the response she received was “well, I hope you don’t think that I am going to stop drinking.” D.D.F. filed for divorce shortly thereafter.

¶ 6. D.D.F. testified that she did not feel there was any possibility of reconciliation between herself and M.W.F. “[b]ecause I have no feelings left for [him] whatsoever anymore.” Court-ordered counseling proved unsuccessful, with the counselor terminating the sessions.

¶ 7. 'Jane confirmed much of her mother’s testimony. Jane testified that when she was approximately four or five years old, her uncle molested her. She was not asked to reveal the specifics of the molestation at the hearing but did confirm that her uncle touched her in an improper fashion on more that one occasion. When she spoke with her father about the incidents, he “made [her] feel like he wasn’t going to say [anything to his family about it especially his brother, [and] ... it made me feel like he cared more about what they thought than about my feelings towards him.” She testified that M.W.F. “still let [his brother] come up there whenever he wanted to.” She further testified that she told her father she did not like his brother’s being at the house and left every time he was present. When questioned on cross-examination regarding her uncle’s age at the time of the alleged molestation, Jane confirmed that he was six years older than she and added, “[h]e was old enough to know what he was doing.” Jane reported that he told her “never to talk about it.” When asked if she had any indication that her uncle would try to engage in inappropriate behavior again, Jane responded that she was “not around him enough.” Jane testified that she heard her parents discuss, during the course of their arguments, the fact that it was her father’s “place” to tell his brother that he was not allowed in their home. She stated that when her uncle was at their home, D.D.F. was not “rude” or “hateful” but “just kind of acted like he wasn’t there.”

¶8. Jane testified that M.W.F. drank “heavily. Like every day that I can recall. I stopped having friends over because it is just like every time I turned around he was embarrassing me because he was drunk.” She testified that his drinking prevented the family from ever going anywhere; D.D.F. “would ask him over and over again ... to kind of calm down on his drinking and he would just ignore her like ... it didn’t matter.” Jane recounted that her mother would ask M.W.F. to think about how much time he was wasting on drinking and not being able to do things with his family. M.W.F. would respond that he was not “drinking that much” or that his drinking did not affect anything. When asked how the drinking affected D.D.F., Jane responded that M.W.F. “was drunk laying [sic] in the recliner and mama, you know, she pretty much was the only one there for me and my sister.” She testified that D.D.F. was “upset” over her father’s drinking, “was pretty depressed about it all the time,” and “would stay kind of distant” from M.W.F. “Quite a few times,” Jane saw her mother “in tears.” On one occasion, Jane “was so upset” that she wrote her father a letter telling him that it hurt her to think that he cared more for drinking than for her, her sister and mother. He never acknowledged receiving her letter.

¶ 9. M.W.F. testified that his wife and daughters “meant everything” to him and that they had “always been first in [his] life.” He did not believe Jane had manufactured her allegations of molestation and admitted that the incidents “upset her”; after he learned of Jane’s allegations, he observed her “feeling down.” He explained that he failed to confront his brother regarding the incidents until after his separation from D.D.F. because when Jane first informed her parents of the molestation, his brother and sister-in-law were grieving over the loss of their one year old child. He testified that it was “hard” for him to tell his brother at that time that he was not allowed in his home; he was waiting until “the right time” to “mention to him” that he “didn’t appreciate what happened.” He further justified his inaction by the fact that his brother and daughter were “just kids when they done that....” M.W.F. contended that his brother only spent the night at the house “a couple” of times after he was aware of Jane’s accusation. He stated that during these visits D.D.F. “treated [his brother] with respect and hospitality” and that Jane “treated him like a regular uncle” and would “hug his neck and tell him good night.” He could not remember Jane’s ever discussing her feelings about her uncle with him prior to his separation from D.D.F. He further denied that he and D.D.F. ever argued over the subject until right before the separation; he admitted, however, that they “talked about it” approximately once a month for three years. He finally acknowledged that “it probably wasn’t” in Jane’s best interest for her uncle to visit.

¶ 10. On direct examination, M.W.F. admitted to “pretty frequent” consumption of alcohol but denied being an alcoholic; he testified that he had quit drinking since his separation from D.D.F. On cross examination, he admitting to having drunk to excess “maybe once a month” in the three-year period prior to the separation. He further admitted to having operated a motor vehicle in close proximity in time to having consumed alcohol on approximately ten occasions in that time period and that D.D.F. and their younger daughter had been in the car on two or three of those occasions. He acknowledged that his daughters had seen him intoxicated “one time or two” and “thinks it probably” bothered his wife and daughters. He denied, however, that he and D.D.F. had argued about his drinking except on one occasion.

¶ 11. Based on this testimony, the chancellor determined that M.W. F.’s conduct had an adverse impact on his wife’s physical and emotional heath which justified granting D.D.F. a divorce on the ground of cruel and inhuman treatment. The court found “an undisputed pattern of psychological abuse and gross neglect for the feelings and emotional health of [his] wife and children resulting in constant emotional stress which became unbearable for [his] wife and children” sufficient to constitute habitual cruel and inhuman treatment. Specifically, the chancellor determined that the actions of M.W.F. in allowing Jane’s alleged sexual perpetrator repeatedly to come into the family home for overnight visits over the objections of D.D.F. and Jane were “insensitive and caused severe emotional stress which became intolerable.... ” Although D.D.F. had not alleged habitual drunkenness as a ground for divorce, the court found the testimony of all witnesses, including M.W.F., of his drinking to be appropriate for consideration along with the emotional abuse in determining the evidence sufficient to grant the divorce on the ground of habitual cruel and inhuman treatment.

ISSUE

¶ 12. On appeal, M.W.F. raises one issue, whether the chancery court was “manifestly wrong in granting a divorce on the statutory grounds of habitual cruel and inhuman treatment, pursuant to Section 93-5-1(7) of the Mississippi Code of 1972, Annotated.”

STANDARD OF REVIEW

¶ 13. As trier of fact, the chancellor “evaluate[s] the sufficiency of the proof based upon his assessment of the credibility of the witnesses and the weight he thinks properly ascribed to their testimony.” Rakestraw v. Rakestraw, 717 So.2d 1284, 1287(¶ 9) (Miss.Ct.App.1998). Our scope of review is “limited.” Rakestraw, 717 So.2d at 1287(¶ 9). The Mississippi Supreme Court has reiterated that in reviewing a divorce decree: “we view the facts of [the] decree in a light most favorable to the appellee and may not disturb the chancellor’s decision unless we find that decision to be manifestly wrong or unsupported by substantial evidence.” Boutwell v. Boutwell, 829 So.2d 1216, 1220(¶ 13) (Miss.2002).

ANALYSIS

¶ 14. A divorce sought on the ground of habitual cruel and inhuman treatment must be proved by a preponderance of the credible evidence. Chamblee v. Chamblee, 637 So.2d 850, 859 (Miss. 1994). The courts of this State have consistently held:

[t]he conduct which evinces habitual cruel and inhuman treatment must be such that it (1) endangers life, limb, or health, or creates a reasonable apprehension of such danger and renders the relationship unsafe for the party seeking relief, or (2) renders the marriage revolting to the non-offending spouse because it is so unnatural and infamous, and makes it impossible to carry out the duties of the marriage, therefore destroying the basis for its continuance.

Mitchell v. Mitchell, 767 So.2d 1037, 1041(¶ 14) (Miss.Ct.App.2000) (quoting Daigle v. Daigle, 626 So.2d 140, 144 (Miss. 1993)). The conduct must be “something more than unkindness or rudeness or mere incompatibility or want of affection.” Richard v. Richard, 711 So.2d 884, 888(¶ 14) (Miss.1998).

¶ 15. M.W.F. argues that D.D.F. failed to prove conduct on his part endangering her life, limb or health or creating an unreasonable apprehension of danger. He summarizes her grounds as arising “from the fact that ten to twelve years earlier, [his] younger brother, who was between ten or twelve years of age, touched [his] daughter, who was between four and six years of age, in an inappropriate place” and from M.W.F.’s “alleged abuse of alcohol.” As with his conduct over the three-year period leading up to the separation of the parties, M.W.F.’s argument wholly dismisses the serious nature of his daughter’s claim of sexual molestation and the effect his allowing the perpetrator into the family home had on his wife and daughter. The record is undisputed that over the three-year period after Jane informed her parents of the molestation by her uncle, her father never confronted him regarding her accusations and continued to welcome him into the home. The testimony of M.W.F. is, however, diametrically opposed to that of D.D.F. and Jane regarding their response to his brother’s visits; M.W.F. testified that D.D.F. treated his brother with “respect and hospitality;” Jane said she “acted like he wasn’t there.” M.W.F. testified that Jane “treated him like a regular uncle” and would “hug his neck and tell him good night”; D.D.F. testified Jane locked herself in her bedroom and seldom came out. Jane testified that she left the house every time he was present. In accepting the testimony of D.D.F. and Jane, the chancellor was acting within her discretion in resolving questions of witness credibility. See Sproles v. Sproles, 782 So.2d 742, 745(¶ 12) (Miss.2001). The chancellor concluded that the actions of M.W.F. in allowing Jane’s alleged sexual perpetrator repeatedly to come into the family home for overnight visits over the objections of D.D.F. and Jane were “insensitive and caused severe emotional stress which became intolerable....” We agree.

¶ 16. We find that the chancellor applied the correct legal standard and applicable law and rendered a thorough opinion which concluded that M.W.F.’s conduct “caused severe emotional stress which became intolerable and constituted cruel and inhuman treatment.” In Rakestraw, 717 So.2d at 1288, this Court recognized that damage to the complaining spouse’s mental health can constitute harm sufficient to justify an award of divorce based on cruel and inhuman treatment. As in Rakestraw, the chancellor in the instant case determined that the record revealed “an undisputed pattern of psychological abuse and gross neglect” of the complaining spouse resulting in constant emotional stress which became unbearable for her and the children. These findings of emotional distress are supported by substantial evidence in the record, and we will not disturb them on appeal.

¶ 17. M.W.F. erroneously argues that evidence of his alcohol consumption cannot be considered because D.D.F. was seeking a divorce on the ground of habitual cruel and inhuman treatment, not habitual drunkenness. In Boutwell, 829 So.2d 1216, the Mississippi Supreme Court affirmed the chancellor’s award of divorce based on cruel and inhuman treatment where the primary evidence was that the husband had an alcohol and prescription drug problem which resulted in behavior such as road rage, an arrest, taking medication at the home of his in-laws and yelling at and humiliating his wife in front of her friends and family. In the instant case, the chancellor considered M.W.F.’s alcohol abuse as a secondary rather than the primary basis for the grant of divorce. The testimony of D.D.F. and Jane evidenced M.W.F.’s alcohol abuse and the affect it had on the family. D.D.F. testified that M.W.F. would “practically pass out ... almost every night from drinking excessively.” The children stopped inviting their friends to the house and stopped having M.W.F. go anywhere with them. On one occasion, M.W.F. was so intoxicated while driving with his wife and younger daughter that he did not even know what road he was on. Jane testified that M.W.F. drank “heavily. Like every day that I can recall. I stopped having friends over because it is just like every time I turned around he was embarrassing me because he was drunk.” She testified that his drinking prevented the family from ever going anywhere; D.D.F. “would ask him over and over again ... to kind of calm down on his drinking and he would just ignore her like ... it didn’t matter.” Jane testified that D.D.F. was “upset” over her father’s drinking, “was pretty depressed about it all the time,” and “would stay kind of distant” from M.W.F. She further testified that her mother was “the only one there” for her and her sister as her father was “drunk laying [sic] in the recliner.” M.W.F. contends that while he “drank too much,” D.D.F. was the one who instigated the arguments over his drinking. MW.F.’s contention is ironic, of course, as he swore on oath that only one such argument ever took place. We find that the chancellor appropriately reviewed the conduct of both parties and did not err in considering the effect of M.W.F.’s excessive alcohol consumption as one of the factors warranting divorce on the ground of cruel and inhuman treatment.

¶ 18. Lastly, M.W.F. challenges the lack of medical testimony to support D.D.F.’s claim of increased high blood pressure. M.W.F. quotes Hodge v. Hodge, 837 So.2d 786, 788-89(¶8) (Miss.Ct.App. 2003) in support of his contention: “Mrs. Hodge does not provide any evidence beyond her own testimony that the physical illnesses or mental harm that she suffered were caused by the alleged habitual cruel and inhuman treatment by her husband. The only medical evidence available is inconclusive ....” In Hodge, the wife sought a divorce on the ground of habitual cruel and inhuman treatment based primarily on allegations that her husband forced her to join in his fondness for pornography resulting in great emotional harm to her. Id. at 788(115). The wife’s allegations were completely uncorroborated and, in fact, refuted by credible evidence; the chancellor denied the wife’s request for divorce, and this Court affirmed. Id. at 787-89 (¶¶ 1, 8-9). In the case at hand, while there was no corroborative testimony regarding the increase in D.D.F.’s blood pressure, there was no testimony refuting it, either. As to D.D.F.’s claim of mental harm, Jane corroborated her mother’s testimony in many respects. She testified that D.D.F. was “upset,” “pretty depressed ... all the time,” and “would stay kind of distant” from M.W.F. “Quite a few times,” Jane saw her mother “in tears.” In Rakestmw, we affirmed the grant of divorce based on cruel and inhuman treatment where the wife’s persistent emotional stress was confirmed by friends and family. Rakestraw, 717 So.2d at 1288(¶ 12). In the case at bar, Jane’s confirmation of her mother’s testimony is sufficient to corroborate her mother’s claim of emotional harm.

¶ 19. We find substantial evidence in the record to support the chancellor’s determination that D.D.F. proved the ground of habitual cruel and inhuman treatment by a preponderance of the evidence and, therefore, affirm.

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

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

      . Due to the issues of sexual molestation of a minor child discussed hereinafter, the parties will be designated only by their initials; the child will be referred to as "Jane.”

      . As to M.W.F.'s emphasis on the age of his brother at the time of the alleged molestation and his rationalization that this brother and daughter were “just kids” at the time, we would point out that in the event the acts rose to the level of sexual battery under section 97-3-95 of the Mississippi Code (Rev.2000), there is no "just kids” defense. A boy may be guilty of sexual battery of a girl under the age of fourteen if he is 24 or more months older than she. Miss.Code Ann. § 97-3-95(l)(d). In this case, M.W.F.’s brother was six years older than Jane.


author: IRVING, J., for the Court.

text:
    Stanley D. WESS a/k/a Stanley Dale Wess, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00180-COA.
    Court of Appeals of Mississippi.
    Oct. 4, 2005.
    Rehearing Denied Jan. 3, 2006.

      Edmund J. Phillips, attorney for appellant.
    Office of Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., IRVING and BARNES, JJ.
   IRVING, J., for the Court.

¶ 1. A Leake County jury convicted Stanley D. Wess of burglary of a building, and the trial court sentenced him to seven years in the custody of the Mississippi Department of Corrections. Following his conviction, Wess filed a motion for a new trial or other relief which was summarily overruled by the trial court.

¶ 2. Feeling aggrieved, Wess appeals and asserts the following issues which we recite verbatim: (1) the trial court erred in refusing one of Appellant’s proposed jury instructions, (2) the trial court erred in overruling Appellant’s objection to the prosecutor’s comments during closing arguments, and (3) the trial court erred in admitting Appellant’s first confession.

¶ 3. Finding no reversible error, we affirm.

FACTS

¶ 4. George Ellis was the owner of Ellis Auto Repair. The auto repair shop was located behind Ellis’s home in Carthage, Mississippi. The shop was an enclosed building with closed windows and locked doors. Ellis kept a wide variety of tools in the building.

¶ 5. Ellis testified that on April 15, 2002, he was awakened around midnight by what sounded like glass breaking. Ellis also testified that he heard the door to his shop being opened. Ellis then got out of bed, peeped out his bedroom window, and saw that the door to his shop was indeed open. After observing the open door, Ellis told his wife to call 911 because he believed that they were being robbed. Ellis then looked out his bedroom window a second time and saw someone coming out of his shop carrying some of Ellis’s belongings.

¶ 6. Ellis quickly grabbed his pants, shoes, and a gun. Ellis went out the front of his house and quickly came upon an individual carrying some items that Ellis later identified as items that were stored in his auto repair shop. When the individual saw Ellis, he dropped the items and ran. Ellis chased after the man and got him to stop running by threatening to shoot him. After the man stopped running, Ellis escorted him back to his driveway, where they remained until the police arrived. Ellis identified the man that he ran down and captured as the same man that he saw attempting to carry away items from his shop. Upon the arrival of the police, this man was identified as Stanley D. Wess, the Appellant herein.

¶ 7. A suppression hearing was held on an alleged inculpatory statement made by Wess while in police custody. Mike Williams, deputy for the Leake County Sheriffs Office, testified that after he read Wess his Miranda rights, Wess blurted out, “I was suppose to be catching chickens, but I saw this business and decided I’d take some things.” Johnny Nealy, a deputy for the Leake County Sheriffs Office, corroborated Williams’s testimony. Deputy Nealy testified that Wess said in a laughing manner that Wess “was supposed to be catching chickens that night, but [Wess] saw the business and decided he would take some things.” A third deputy, Deputy Tommy Russell, was present on the scene but was off duty on the day of the trial and could not be located to testify. Deputy Nealy testified that he did not know if Russell was standing there and heard Wess being given the Miranda rights or if Russell was out investigating the scene at that time.

¶ 8. Wess testified that he was not given his Miranda rights. Wess also denied having said anything about catching chickens or taking anything from the shop.

¶ 9. After hearing testimony, the trial court denied the motion to suppress and ruled that the statement was admissible. The judge determined that it was not prejudicial to Wess to allow the matter to go forward without the testimony of Deputy Russell. The judge found Deputy Williams’s testimony to be credible and corroborated by the testimony of Deputy Nealy. The judge also found that Wess’s statement to the police was unsolicited.

¶ 10. A suppression hearing was also held on a Miranda waiver of rights form signed by Wess and on a written statement given by Wess. Mark Welcher, a criminal investigator for the Leake County Sheriffs Office, testified that he interviewed Wess at the Leake County Correctional Facility and advised Wess of his Miranda rights before the interview. Welcher testified that Wess signed a Miranda waiver of rights form, which Wel-cher witnessed. Welcher further testified that after signing the waiver, Wess then gave a voluntary statement which Welcher wrote down and Wess initialed. In that statement, Wess said that he quit work catching chickens and was walking home when he saw a business on the road and decided to enter the business through a window. Wess also said that he took a weed eater and some other things from the business. Finally, Wess said that he was caught by “some man” who made him stop and held him until the police arrived.

¶ 11. Investigator Welcher testified that Wess was not promised anything or coerced in any way into making the statement. Welcher also testified that when Wess gave the statement, Wess did not appear to be under the influence of drugs or alcohol, that Wess appeared to know what he was doing, and that Wess indicated that Wess understood his rights. Wel-cher also testified that Wess never requested an attorney while he was being interviewed.

¶ 12. Wess testified that Welcher read him his Miranda rights after taking the statement. Wess also testified that he told Welcher that he wanted a lawyer present at the time of questioning, but Welcher told him that the statement was off the record. Wess further testified that Wel-cher sprayed him with mace and by the time he regained his eyesight, Welcher had written the entire statement. Wess said that he never held a conversation with Welcher and that he only initialed the statement because Welcher threatened to mace him a second time. Wess also claimed that Welcher tried to bribe him to help prosecute some drug dealers. Wess also testified that Welcher made claims that he could tamper with evidence. In rebuttal, Welcher denied that any of Wess’s allegations were true.

¶ 13. The trial court ruled that Wess’s waiver and voluntary statement were admissible. The judge found that Wess was competent to make the statement, that there was no coercion, duress, or promise of reward made in connection with the statement, and that the statement was freely, voluntarily, and intelligently made after Wess waived his Miranda rights.

¶ 14. At trial, Wess took the stand and testified in his own defense. Wess testified that he was riding home with a friend when the friend’s ear started having transmission problems. Wess stated that he went to Ellis’s house looking for help. Wess alleged that the pressure washer, weed eater, and chain saw were already sitting in Ellis’s driveway when he arrived at the house. Wess stated that after he knocked on the door of the house, Ellis came out the back door with a gun and shot at him. Wess stated that he was frightened, so he took off running and only stopped running because Ellis threatened to shoot him. Finally, Wess stated that Ellis held him at gunpoint until the police arrived and arrested him. Throughout his testimony, Wess reiterated that witnesses for the prosecution were lying.

¶ 15. During closing argument, defense counsel objected to comments made by the prosecution. The objectionable comments were that in order for the jury to find Wess not guilty, “the jury would have to find that George Ellis, Johnny Nealy, Mike Williams, and Mark Wilcher were all liars, and that every one of them is so vicious and vile that they would come to court and try to make up a story like this and send an innocent man to the penitentiary.” The trial court overruled the objection, finding that the comments were an argument and an allowable inference.

¶ 16. Wess was found guilty and given a seven-year sentence in the custody of the Mississippi Department of Corrections. From that conviction and sentence, Wess appeals to this Court.

ANALYSIS AND DISCUSSION OF THE ISSUES

(1) Failure to Properly Instruct the Jury

¶ 17. Wess argues that the trial court erred in refusing to give proposed jury instruction D-7, which states:

The Court instructs the jury that possession of recently stolen property, alone, is not presumptive proof of guilt of burglary, and the fact that the property testified to have been stolen was at any time soon after its being stolen in the possession of the defendant does not shift the burden of proof to the defendant to explain or account for such possession and would not, alone, warrant the jury finding the defendant guilty because a satisfactory explanation was not given.

Wess contends that the trial court should have given proposed instruction D-7 because it was an instruction on “his theory of the case.” In support of his contention, Wess cites Hester v. State, 602 So.2d 869 (Miss.1992) for the proposition that an accused is entitled to have a jury instructed about his theory of the case. Wess maintains that denial of the instruction by the trial court constitutes reversible error.

¶ 18. The State counters that this issue is without merit because the jury was properly instructed on what had to be proved in order to find Wess guilty of burglary of a building. The State maintains that irrespective of the denial of the jury instruction, Wess’s argument is still lacking in merit because the court properly gave instructions informing the jury of the elements of the crime of burglary and the State’s responsibility to prove those elements beyond a reasonable doubt.

¶ 19. We note that our supreme court has consistently held that unexplained possession of recently stolen property is pri-ma facie, although by no means conclusive, evidence of burglary. Brooks v. State, 695 So.2d 593, 594 (Miss.1997) (citing Weaver v. State, 481 So.2d 832, 834 (Miss.1985)). The Court determined that “under appropriate circumstances, guilt beyond a reasonable doubt may be based upon the possession of recently stolen property.” Id. (citing Shields v. State, 702 So.2d 380, 383 (Miss.1997)).

¶ 20. In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. Johnson v. State, 823 So.2d 582, 584 (¶4) (Miss.Ct. App.2002) (quoting Hickombottom v. State, 409 So.2d 1337, 1339 (Miss.1982)). Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is fairly covered elsewhere in the instructions, or is without foundation in the evidence. Poole v. State, 826 So.2d 1222, 1230 (¶ 27) (Miss.2002) (citing Smith v. State, 802 So.2d 82, 88 (¶ 20) (Miss.2001)).

¶ 21. Accordingly, we find that although proposed jury instruction D-7 may have presented Wess’s theory of the case, the trial court properly denied the instruction because it incorrectly stated the law and is fairly covered elsewhere in the instructions. We find that the jury instructions, read as a whole, fairly announced the law of the case and created no injustice.

(2) Prosecutor’s Comments During Closing Argument

¶ 22. Wess argues that certain comments made by the prosecution during closing arguments were improper and prejudicial. Wess maintains that the prosecutor’s comments appealed to the emotions of the jury. Wess contends that the prosecutor’s comment equating acceptance of his defense with the belief that the prosecution witnesses were vicious and vile persons went beyond mere inferences and diminished the fairness of his trial.

¶ 23. The State counters that the record reflects that the prosecutor’s comments were based upon testimony and evidence before the jury. The State argues that according to Wess’s testimony, the prosecution witnesses had somehow conspired to put an innocent man in jail. The State maintains, and the record reflects, that Wess’s testimony was to consistently accuse all the prosecution’s witnesses of lying. Therefore, the State argues that the prosecutor’s comment during closing argument was based upon Wess’s own testimony.

¶ 24. An examination of the record reflects that during closing argument, the prosecutor made the following statement to the jury:

In order for you to go into that jury room and come back with a not guilty verdict, you know what you’ve go to do? You’ve got to go back in there and you’ve got to decide that George Ellis, that Johnny Nealy, that Mike Williams, that Mark Wilcher, every one of them, is a liar. That every one of them is so vicious and vile that they would come to court and try to make up a story like this and send an innocent man to the penitentiary.

¶25. Attorneys are given wide latitude during closing arguments. Logan v. State, 773 So.2d 338, 350 (¶ 48) (Miss. 2000) (citing Rushing v. State, 711 So.2d 450, 455 (¶ 15) (Miss.1998)). The trial judge is in the best position for determining the prejudicial effect of an objectionable comment and is therefore vested with the discretion to determine whether the comment is so prejudicial that a mistrial should be declared. Id. (citing Alexander v. State, 602 So.2d 1180, 1182 (Miss.1992)). “The test to determine if an improper comment by a prosecutor requires reversal is whether the natural and probable effect of the prosecuting attorney’s argument created unjust prejudice against the accused resulting in a decision influenced by prejudice.” Id. (quoting Dunaway v. State, 551 So.2d 162, 163 (Miss.1989)).

¶ 26. In the case at bar, we find that there is no evidence in the record to support Wess’s contention that the prosecution’s statement unduly influenced the outcome of the jury’s verdict. Similarly, there is no evidence that the comments prevented Wess from receiving a fair trial. We find that although the prosecutor chose to use strong connotations in making a point to the jury, his argument was nevertheless based upon testimony and evidence presented at trial. Accordingly, we find no merit in this issue.

(3) Admittance of Appellant’s First Confession

¶ 27. Wess argues that the trial court erred in admitting the first inculpa-tory statement that he allegedly made while in police custody. Wess contends that the statement should not have been admitted because Deputy Russell did not testify at the suppression hearing. Wess further argues that since he denied having been given his Miranda rights or having made any inculpatory statements, the trial court should have required the prosecution to produce Deputy Russell for the suppression hearing or justify his absence before admitting the alleged confession. Wess maintains that failure by the trial court to adhere to this requirement is in violation of Mississippi law and is reversible error.

¶ 28. The State counters that there was sufficient evidence for determining that the statement allegedly made by Wess was voluntarily made. The State contends that Wess’s argument rests on the assumption that Deputy Russell witnessed Wess being read his Miranda rights. The State maintains, and the record reflects, that there is a lack of evidence that Russell was present or had any contact at all with Wess at the time Wess made the statement. In fact, the testimony of Deputy Nealy was that Russell may have been investigating the scene at the time Deputy Williams read Wess his Miranda rights.

¶ 29. The standard for reviewing the admission of a confession is well established: “Determining whether a confession is admissible is a finding of fact which is not disturbed unless the trial judge applied an incorrect legal standard, committed manifest error, or the decision was contrary to the overwhelming weight of the evidence.” Kircher v. State, 753 So.2d 1017, 1023 (¶ 27) (Miss.1999) (citing Wright v. State, 730 So.2d 1106, 1108(¶ 11) (Miss. 1998)).

¶ 30. The trial judge held a pretrial suppression hearing to determine whether Wess’s confessions were voluntarily, knowingly, and freely given. During this hearing, the judge heard testimony from Wess and Deputies Williams and Nealy in regard to the first confession that Wess made on the scene. Both officers testified that the statement was given in their presence, was given after Wess had been read his Miranda rights, and was voluntarily and freely given by Wess without any coercion. The deputies further testified that Wess just blurted out the statement after being read his Miranda rights. Most importantly, Deputy Nealy testified that he did not know if Deputy Russell was there and heard Deputy Williams give Wess his Miranda rights or if Deputy Russell was out investigating the scene. Furthermore, there is nothing in the record to support the assumption that Officer Russell was present at the time Wess made his statement.

¶ 31. Accordingly, we find that the State was not required to produce Deputy Russell at the suppression hearing in order for the trial judge to properly admit Wess’s confession. We find that the trial judge did not apply an incorrect legal standard by admitting Wess’s confession without the testimony of Deputy Russell. Therefore, we affirm the trial judge’s admission of Wess’s first confession.

¶ 32. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY OF CONVICTION OF BURGLARY OF A BUILDING AND SENTENCE OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEAKE COUNTY.

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


author: KING, C.J., for the Court.

text:
    Terry DUKES, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01719-COA.
    Court of Appeals of Mississippi.
    April 18, 2006.

      Allan D. Shackelford, Clarksdale, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
   KING, C.J., for the Court.

¶ 1. Terry Dukes was indicted for the crime of deliberate design murder of Lecia Jones, his former girlfriend. In a jury trial, which commenced on February 23, 2004, Dukes was found guilty. Dukes received a life sentence for his crime. Aggrieved, Dukes has appealed his conviction. Dukes has not identified for this Court any errors which he suggests requires reversal. The brief of Dukes’ counsel consists of two paragraphs, wherein he states that his review of the record revealed no reversible errors.

FACTS

¶ 2. On the evening of February 5, 2002, Lecia Jones was at home with her daughter and family friend, Jesse Barnes. Leaving his vehicle at Jones’ house, Barnes left in Jones’ truck to carry a movie to her sister. While Barnes was gone, Dukes parked his car and walked two blocks to the home of Jones. At some point after arriving at the home of Jones, Duke inflicted stab wounds, which resulted in her death.

¶ 3. Two witnesses testified that on the evening of February 5, 2002, a man fitting Dukes’ description was seen lurking around Jones’ house trying to gain entry into the home through one of two doors. Dukes testified that Jones let him in the house. He stated that upon being invited in by Jones, he questioned her about the black truck outside. Dukes further stated that when Jones did not answer his questions, he grabbed a knife and headed toward the door to puncture the truck’s tires. He indicated that Jones got in the way and was stabbed. Dukes testified that, at that point, he blacked out and did not remember what else happened. Jones was pronounced dead in Memphis, Tennessee, with two fatal stab wounds in her abdomen and one fatal stab wound in her skull.

DISCUSSION

¶ 4. Dukes court-appointed counsel filed an appellate brief pursuant to Turner v. State, 818 So.2d 1186 (Miss.2001). Turner holds that counsel should: (1) determine the defendant is unlikely to prevail on appeal, (2) file a brief indicating that he/she scoured the record and could not find reversible error that would support an appeal, and (3) advise the client of the right to file a pro se supplemental brief when he/she believes that a defendant’s appeal would be frivolous. Id. at (¶ 11). At this point, the appellate court should then make its qwn independent review of the record. Id. On March 17, 2005, the supreme court ordered that more steps be taken in cases of indigent defendants to rectify constitutional problems with the procedure outlined in Turner. Lindsey v. State, 2003-KA-00331-SCT, — So.2d -, 2005 WL 613396 (Miss. Mar. 17, 2005). The supreme court also added the requirement that should the defendant raise an arguable issue in his/her review of the record, or should the court find any arguable issue in its review of the record, then appellate counsel should be required to submit supplemental briefing on the issue. Id. at (¶ 18).

¶ 5. As in Eaton v. State, 913 So.2d 413 (Miss.Ct.App.2005), this case is distinguished from Lindsey in that the attorney’s brief complied with Turner, and no pro se brief was filed. After carefully reviewing the record by the mandates required in Turner and Lindsey, we find no error which warrants reversal. Therefore, we affirm.

¶ 6. THE JUDGMENT OF THE COA-HOMA COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE TO LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COST OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.

      . Dukes' brief contains one paragraph stating that his attorney could not find any reversible error in the record that might support an appeal.

      . On February 28, 2005, this Court issued an order to Dukes to allow him forty (40) days to file a pro se brief. To this date, no pro se brief has been filed by Dukes.


author: LEE, P.J., for the Court.

text:
    The UNIVERSITY OF MISSISSIPPI MEDICAL CENTER and MS Institutions of Higher Learning Workers’ Compensation Trust Fund, Appellants v. Toni G. RAINEY, Appellee.
    No. 2005-WC-00773-COA.
    Court of Appeals of Mississippi.
    April 18, 2006.

      A. Lee Abraham, John T. Wakeland, attorneys for appellants.
    William Ross Bradley, Clarksdale, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   LEE, P.J., for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Toni Rainey was the chief radiology technician at the University of Mississippi Medical Center at its Parchman clinic. On April 19, 2002, Rainey suffered an injury at work, which caused significant back and leg pain. Rainey underwent corrective surgery, but, during this time, she developed a bladder control problem as a result of nerve damage from the injury'. Rainey testified that she wears bladder control pads all the time. After back surgery, Rainey continued to experience pain and was ultimately fitted with a molded brace she wears during the day. Rainey also wears a TENS unit to help alleviate the pain and continues to see a physical therapist.

¶2. Rainey’s treating physician allowed her to go back to work in June 2002, but she was instructed to refrain from engaging in physically demanding activities. Rainey left her position at the clinic on September 30, 2003, because she “could not handle it.”

¶ 3. On June 19, 2003, Rainey filed a petition to controvert, alleging that she sustained a work-related injury to her back. A hearing was held before the administrative judge on May 26, 2004. In her order, the administrative judge noted that the parties stipulated that Rainey suffered a compensable work-related injury. Ultimately, the administrative judge found that Rainey had suffered a 50% loss of wage earning capacity as a result of the injury and awarded her permanent partial disability benefits of $322.90 per week beginning September 10, 2002, and continuing for 450 weeks. The administrative judge also stated that Rainey was entitled to reasonable and necessary medical services and supplies as consistent with statutory provisions.

¶ 4. UMC, along with the Mississippi Institutions of Higher Learning Workers’ Compensation Trust Fund (collectively UMC), petitioned the Workers’ Compensation Commission (Commission) for a review of the administrative judge’s decision. A hearing was held before the Commission on October 4, 2004, wherein the Commission affirmed the ruling of the administrative judge.

¶ 5. UMC then appealed to the Sunflower County Circuit Court. On March 9, 2005, the trial court entered an order affirming the decision of the Commission. UMC now appeals to this Court asserting numerous issues that all relate to whether the decision of the Commission was supported by substantial evidence.

STANDARD OF REVIEW

¶ 6. The Commission is the ultimate fact-finder. Accordingly, the Commission may accept or reject an administrative judge’s findings. Vance v. Twin River Homes, Inc., 641 So.2d 1176, 1180 (Miss.1994). This Court will affirm the Commission’s findings of fact if they are supported by substantial evidence. Id. In other words, “[t]his Court will reverse an order of the [Commission] only where such order is clearly erroneous and contrary to the overwhelming weight of the evidence.” Id. Doubtful claims should be resolved in favor of compensation, so as to fulfill the beneficial purposes of statutory law. Sharpe v. Choctaw Electronics Enterprises, 767 So.2d 1002, 1006(¶ 19) (Miss.2000).

DISCUSSION

I. WAS THE DECISION OF THE COMMISSION SUPPORTED BY SUBSTANTIAL EVIDENCE?

¶ 7. UMC argues that Rainey offered no evidence of a loss of wage-earning capacity nor did she present any evidence of any job search efforts following her resignation. A presumption of no loss of wage earning capacity arises when the claimant’s post-injury earnings are equal to or exceed pre-injury earnings. Gen. Elec. Co. v. McKinnon, 507 So.2d 363, 365 (Miss.1987). The claimant may rebut the presumption by presenting evidence that the post-injury earnings are an unreliable indicator of wage earning capacity. Id. “[A]ny factor or condition which causes the actual post-injury wages to become a less reliable indicator of earning capacity will be considered.” Id. See Hall of Miss., Inc. v. Green, 467 So.2d 935 (Miss.1985).

¶ 8. The undisputed medical evidence was that Rainey’s injury resulted in a significant limitation on her ability to perform her job. Rainey was unable to lift objects or bend or stoop, all necessary requirements of her job. There was testimony that Rainey needed assistance in completing her job requirements at the clinic, namely the lifting of patients and handling the x-ray machine. Ultimately, it became difficult to keep an adequate staff at the clinic to help Rainey. At the time of her injury, Rainey worked two other jobs in addition to her position at the Parchman clinic. Eventually, Rainey was unable to continue in these additional employment positions.

¶ 9. One of Rainey’s treating physicians, Dr. Rodney Frothingham, allowed Rainey to return to work after her accident, but instructed her to refrain from any heavy lifting. Dr. Frothingham also opined that Rainey would be unable to continue working as a radiology technician.

¶ 10. We cannot find that the Commission’s order was clearly erroneous or contrary to the overwhelming weight of the evidence; thus, we affirm.

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

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


author: CHANDLER, J., for the Court.

text:
    Linda Kaye RANDOLPH, Appellant v. Laurence L. LAMBERT, LLL Properties, Inc., BP Properties, Inc. and Frank P. Wittmann, III, Appellees.
    No. 2004-CA-02169-COA.
    Court of Appeals of Mississippi.
    April 18, 2006.

      Ray T. Price, Hattiesburg, attorney for appellant.
    Floyd J. Logan, Sherrie L. Moore, Gulf-port, attorneys for appellees.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J., for the Court.

¶ 1. Laurence Lambert filed suit against Linda Randolph for breach of contract. Randolph filed a motion for summary judgment and a counterclaim, which alleged the filing of a frivolous lawsuit under the Litigation Accountability Act. The Circuit Court of Harrison County granted Randolph’s motion for summary judgment before Lambert filed an answer to the counterclaim. Thereafter, Randolph obtained new counsel and filed an amended counter-complaint adding Lambert’s counsel, Frank Wittmann, III, as a defendant and asserting additional claims of intentional infliction of emotional distress and negligent infliction of emotional distress. Lambert filed a motion for summary judgment and Wittmann filed a motion to dismiss. Both motions were granted and Randolph appeals.

I. WHETHER THE LITIGATION ACCOUNTABILITY ACT WAS USED PROPERLY AS A CAUSE OF ACTION

II. WHETHER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM WAS TIME BARRED UNDER THE CONTINUING TORT DOCTRINE

III. WHETHER THE COURT ERRED IN DISMISSING THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIMS

IV. WHETHER THE COURT ERRED IN DISMISSING THE NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CLAIMS

V. WHETHER WITTMANN WAS ON NOTICE OF THE CLAIM AND A NECESSARY PARTY TO THE LITIGATION

¶ 2. Finding no error, we affirm.

FACTS

¶3. On June 5, 2000, Randolph purchased a piece of property from Lambert. Subsequently, Randolph sold the property to Edwin Pearson. On April 24, 2001, Lambert filed a lawsuit against Randolph which claimed that Randolph failed to hon- or an oral contract to split the profits on the sale to Pearson. Randolph filed a counterclaim which alleged the filing of a frivolous lawsuit under the Litigation Accountability Act. Randolph also filed a motion for summary judgment which the court granted on September 27, 2002, dismissing Lambert’s claims. When the motion for summary judgment was granted, Lambert had not filed an answer to Randolph’s counterclaim. Lambert filed a motion to set aside the judgment which was overruled by the trial court. Lambert did not appeal.

¶ 4. Subsequently, Randolph obtained new counsel ánd on May 5, 2003, she filed an amended counterclaim. The amended counterclaim alleged the filing of the frivolous lawsuit under the Litigation Accountability Act and asserted the additional claim of intentional infliction of emotional distress or, in the alternative, negligent infliction of emotional distress. The counterclaim alleges that the counter-defendants “knew or should have known through the use of due diligence that the lawsuit was filed without substantial justification, frivolous, groundless in fact and in law, and vexatious.” Randolph claims that she suffered severe emotional distress throughout the course of the original suit and she suffered detriment to her business as a real estate investor. Randolph feared the lawsuit would have an adverse effect on her business reputation. As a result of the emotional distress, Randolph became depressed. Randolph was prescribed Paxil by her family physician and she saw a cardiologist for her increasing blood pressure.

¶ 5. In the amended counterclaim, Randolph also named Lambert’s counsel, Frank P. Wittmann, as a defendant. No leave of the trial court was requested by Randolph to add Wittmann as a defendant and Wittmann was not served with process. Wittmann filed an answer and a motion to dismiss the amended counterclaim for insufficient service of process, improper joinder and expiration of the statute of limitations. Additionally, Lambert filed a motion for summary judgment and Wittmann joined the motion. On September 30, 2004, the Circuit Court of Harrison County granted Lambert’s motion for summary judgment and Wittmann’s motion to dismiss.

STANDARD OF REVIEW

¶ 6. Lambert was granted his motion for summary judgment against Randolph’s amended counter complaint claims. A moving party is entitled to a summary judgment as a matter of law when there is no genuine issue of material fact. M.R.C.P. 56(c). The standard of review for a summary judgment is de novo.

¶ 7. The trial court granted Wittmann’s motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure. A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint. Little v. Mississippi Dep’t. of Human Services, 835 So.2d 9, 11 (¶ 6) (Miss.2003). To grant a motion to dismiss under Rule 12(b)(6), the trial court must be certain that Randolph is entitled to no relief under any set of facts that could be proved in support of the claim. Franklin County Co-op v. MFC Services (A.A.L), 441 So.2d 1376, 1377 (Miss.1983). Because a motion to dismiss is a question of law, the standard of review is de novo. UHS-Qualicare, Inc. v. Gulf Coast Cmty. Hosp., Inc., 525 So.2d 746, 754 (Miss.1987).

LAW AND ANALYSIS

I. WHETHER THE LITIGATION ACCOUNTABILITY ACT WAS USED PROPERLY AS A CAUSE OF ACTION

¶ 8. The Litigation Accountability Act of 1988 states in pertinent part:

in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorney’s fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification, or that the action, or any claim or defense asserted, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceedings by other improper conduct including, but not limited to, abuse of discovery procedures available under the Mississippi Rules of Civil Procedure.

Miss.Code Ann. § 11-55-5(1) (Rev.2002). Therefore, the Litigation Accountability Act allows the court to award the prevailing party for encountering unnecessary expenses in order to vindicate a state protected right. Id. The court will only award fees when a party brings frivolous or bad faith litigation. Young v. Deaton, 766 So.2d 819, 822 (¶ 12) (Miss.Ct.App.2000).

¶ 9. Randolph claims that the Litigation Accountability Act may be properly brought before the court as a cause of action. Lambert claims that the act is a remedy for frivolous actions and not a cause of action itself. Lambert contends that the statute states the court shall award fees for frivolous action “upon the motion of any party or on its own motion” and therefore, the statute is clear that the Litigation Accountability Act is to be brought as a motion and not as an independent cause of action.

¶ 10. The trial court agreed with Lambert. The court opined that “the intent of the legislature, when it crafted the above mentioned statute, was to provide a remedy in addition to the one provided for by Rule 11 of the M.R.C.P., for improper conduct related to the prosecution or defense of a lawsuit.” The trial court interpreted the statute strictly and held that the statute requires a party seeking relief under the statute to do so by motion. The court held that the purpose of the statute was clearly to provide the courts with an additional sanctioning mechanism, not to create a cause of action. This Court agrees with the ruling of the trial court.

¶ 11. The clear language of the statute shows that the legislature intended for the Litigation Accountability Act to be brought in motion form and not as a cause of action. Mississippi Code Annotated section 11-55-5(1) states “the court shall award, as part of its judgment and in addition to any other costs assessed, reasonable attorney’s fees.... ” This language support’s the trial court’s ruling that the award of any costs under the act would be awarded “as part” of the judgment and “in addition to any other costs assessed” from the judgment. This indicates that the award would be part of the original action, assessed with other costs involved in the original action, not an independent judgment in and of itself.

¶ 12. Additionally, the language of the statute specifically states that the claim is to be brought “upon motion of any party or on its own motion.” This Court is bound by the clear language of the statute which makes clear the legislature intended the claim to be brought on motion and not as an independent cause of action. Based upon the plain reading of the statute, the Litigation Accountability Act is not an independent cause of action.

II. WHETHER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM WAS TIME BARRED UNDER THE CONTINUING TORT DOCTRINE

¶ 13. Lambert filed the original suit against Randolph on April 20, 2001. On May 6, 2003, Randolph filed the amended counterclaim which added the additional claim of intentional infliction of emotional distress or, in the alternative, negligent infliction of emotional distress. Lambert contends that the claim for intentional infliction of emotional distress is time barred because the statute of limitations is one year. Miss.Code Ann. § 15-1-35 (Rev.2002). Randolph argues that the intentional infliction of emotional distress was a continuing tort. If the claim is a continuing tort, the statute of limitations does not begin to run until the date of the last injury. Smith v. Sneed, 638 So.2d 1252, 1255 (Miss.1994). Randolph claims the date of the last injury was the day that the summary judgment was granted by the lower court; therefore, her claim was timely filed.

¶ 14. A continuing tort is a tort that is “inflicted over a period of time; it involves a wrongful conduct that is repeated until desisted, and each day creates a separate cause of action.” Stevens v. Lake, 615 So.2d 1177, 1183 (Miss.1993) (citing 230-31 C.J.S., Limitations of Actions § 177). To toll a statute of limitation, the tort must be “occasioned by continual unlawful acts, not by continual ill effects from an original violation.” Id. Randolph contends that the continued pursuit of the frivolous lawsuit is sufficient to constitute repeated acts of wrongful conduct. Therefore, this Court must determine whether the emotional distress was a result of the filing of the lawsuit or whether the emotional distress was caused by continuing unlawful acts.

¶ 15. In Stevens, the court holds the continued tort doctrine applies “where the defendant commits repeated acts of wrongful conduct, not where harm reverberates from a single, one-time act or omission.” Id. In the present case, Randolph does not state any additional wrongful acts that occurred after filing the lawsuit which would constitute repeated wrongful conduct. To the contrary, the only “action” Randolph refers to in her amended counterclaim is the action of filing the lawsuit. Randolph’s claim of continued pursuit of the lawsuit is not sufficient to justify repeated unlawful acts. There is no evidence to support a claim that any continued ill effects were caused by any act other than the lawsuit. Therefore, the statute of limitations is not tolled and the claim for intentional infliction of emotional distress is barred by the statute of limitations.

III. WHETHER THE COURT ERRED IN DISMISSING THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIMS

¶ 16. Because this Court finds that the claim for intentional infliction of emotional distress is barred by the one-year statute of limitations, this issue is without merit.

IV. WHETHER THE COURT ERRED IN DISMISSING THE NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CLAIMS

¶ 17. Negligent infliction of emotional distress has a three-year statute of limitations. Therefore, Randolph’s claim for negligent infliction of emotional distress was timely filed. In order to recover emotional distress damages resulting from ordinary negligence, Randolph must prove “some sort of physical manifestation of injury or demonstrable harm, whether it be physical or mental, and that harm must have been reasonably forseeable to the defendant.” American Bankers’ Ins. Co. of Florida v. Wells, 819 So.2d 1196, 1208 (¶ 40) (Miss.2001). For Randolph “to recover for mental anguish unaccompanied by demonstrable physical or mental injury, the defendant’s conduct must be malicious, intentional, willful, wanton, grossly careless, indifferent or reckless.” Id.

¶ 18. Randolph claims that her anxiety regarding the lawsuit caused her increased blood pressure. Randolph admits that she had blood pressure problems prior to the lawsuit; however, after the lawsuit she was forced to see a specialist. Randolph claims that she was prescribed medication to treat her anxiety and depression as a result of the lawsuit.

¶ 19. Although Randolph claims that her family physician can testify to increased anxiety and stress, Randolph did not offer any evidence to support this contention in the summary judgment motion. Randolph cannot recover for emotional distress damages resulting from ordinary negligence “without proving some sort of physical manifestation of injury or demonstrable harm.” Evidence that Randolph is very depressed and very upset is insufficient to sustain damages for mental anguish.

¶ 20. The trial court ruled that there was no evidence that indicated any extreme conduct on behalf of Lambert. We agree with the trial court that there is no evidence that Lambert and Wittmann acted grossly careless or reckless. Therefore, the trial court did not err in dismissing the negligent infliction of emotional distress claims.

V.WHETHER WITTMANN WAS ON NOTICE OF THE CLAIM AND A NECESSARY PARTY TO THE LITIGATION

¶ 21. Wittmann claims that the motion to dismiss was properly granted by the trial court because Randolph did not meet the requirements of' Rule 14 of the Mississippi Rules of Civil Procedure. Under Rule 14 of the Mississippi Rules of Civil Procedure, “[a]fter commencement of the action and upon being so authorized by the court in which the action is pending on motion and for good cause shown, a defending party may cause a summons and compliant to be served upon a person not a party to the action who is or may be liable to him for all or a part of the plaintiffs claim.... ” M.R.C.P. 14. Randolph did not file a motion to amend her counterclaim to join Wittmann. Neither did she serve Wittmann with process.

¶ 22. Randolph admits that procedural deficiencies exist. However, Randolph contends that she did not need to obtain leave of court under Rule 14 of the Mississippi Rules of Civil Procedure because the amended counterclaim was brought pursuant to Rule 15 of the Mississippi Rules of Civil Procedure. Under Rule 15 of the Mississippi Rules of Civil Procedure, “[a] party may amend his pleading as a matter of course at any time before a responsive pleading is served.”

¶ 23. Lambert did not respond to Randolph’s counterclaim before the summary judgment was granted. Randolph contends that no leave of court was necessary to bring in Wittmann as a third party defendant because the complaint was properly amended under Rule 14 of the Mississippi Rules of Civil Procedure.

¶ 24. However, Randolph cannot disregard the procedures for adding a third party defendant set out in Rule 14 of the Mississippi Rules of Civil Procedure. Under Rule 14, Randolph cannot bring in Wittmann as a third party without good cause shown and proper service. Randolph did not meet these standards.

¶ 25. Randolph claims Wittmann knew of the substance of the counterclaim, therefore, he should not be dismissed from the suit regardless of the deficiencies. These arguments are without merit.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON 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 AND ROBERTS, JJ., CONCUR. . SOUTHWICK, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.