source: Caselaw Access Project

author: GRAVES, Justice, for the Court.

license: Public Domain

text:
    Lenzy Louis HODGIN v. STATE of Mississippi.
    No. 2004-KA-02039-SCT.
    Supreme Court of Mississippi.
    July 26, 2007.

      Aelicia L. Thomas, Rosedale, attorney for appellant.
    Office of the Attorney General by Desh-un Terrell Martin, attorney for appellee.
    Before WALLER, P.J., GRAVES and RANDOLPH, JJ.
   GRAVES, Justice, for the Court.

¶ 1. Lenzy Hodgin was convicted of fondling and sexual battery in the Circuit Court of Sunflower County and sentenced to twenty years on each count to be served consecutively in the custody of the Mississippi Department of Corrections. Thereafter, Hodgin’s post-trial motions were denied and he perfected this appeal.

FACTS

¶ 2. When he was approximately seven years old, M.C. would accompany other family members to visit his grandfather at Parchman. During these visits, Hodgin, who was also serving time at Parchman, befriended M.C. and his family and eventually began molesting M.C. M.C. testified that Hodgin, whom he knew as L.H., would follow him into the bathroom, rub M.C.’s genital area, and put his mouth on M.C.’s penis. Hodgin then began writing letters to M.C. and his family in an attempt to arrange future opportunities to see M.C. The grandfather became aware of an incident involving Hodgin being placed on lockdown at the prison and told M.C.’s mother about the incident. Upon being asked about Hodgin by his mother, M.C. then relayed what Hodgin had been doing to him. Hodgin was convicted of fondling and sexual battery and sentenced to twenty years on each count, to be served consecutively. Subsequently Hod-gin filed this appeal.

ANALYSIS

I. The court erred in accepting Carol Langendun as an expert in the field of child abuse.

¶ 3. Hodgin asserts that he had no objection to Langendun being accepted as an expert in the field of forensic interviewing, but that he objected to Langendun being accepted as an expert in the field of child abuse and to Langendun’s testimony that M.C. was molested. Further, Hodgin asserts that the trial court erroneously accepted Langendun as an expert in child abuse and that Langendun was used as a “human polygraph.”

¶ 4. Hodgin’s entire argument on this issue pertains to Langendun as a forensic interviewer. Such an argument is improper because Hodgin had no objection to Langendun being certified as an expert in forensic interviewing. On direct examination of Langendun, the following exchange occurred:

Q. What is a forensic interviewer?
A. It’s an investigative interview conducted to assess whether or not a child has been abused and, if so, what happened in the child’s own words. It’s conducted in a neutral fact-finding manner, so I, as an interviewer, don’t lead, or coerce, a child into making a statement. Rather, they are allowed to give their own statement in their own words.

Then, on cross-examination:

Q. Okay. All right. So is it tantamount to be more on a psychological side?
A. No. It’s investigative, because forensic interviewing is considered a soft science. There’s no way that science can test whether or not a child is with 100 percent accuracy telling the truth about sexual abuse allegations or not, because they can’t abuse children to test, and, therefore, we have to rely on research on child development issues and all sorts of other factors to formulate a finding based on the statement that the child gives during the interview.

¶ 5. Hodgin was clearly informed of the scope of forensic interviewing and he had no objection.

¶ 6. In addition, Hodgin asserts that Langendun was improperly used as a “human polygraph.” In support of this claim, Hodgin cites Carr v. State, 655 So.2d 824, 886 (Miss.1995). However, Carr pertains to the admissibility of polygraph results and is not applicable to this case. Further, Hodgin failed to object during Langendun’s testimony regarding M.C.’s consistency, reliability and/or truthfulness, and objected only later based on her “characterization of I think.” The following exchange occurred during direct examination of Langendun:

Q. Okay. Is it unusual that [M.C.] didn’t tell what had happened to him immediately?
A. It’s not at all unusual. When a child is molested, it’s very confusing, especially when it’s a person of authority, like an adult. We’re taught from birth to obey and respect and never contradict an adult, so, you know, when he was molested, I think he displayed that he was not—
BY [COUNSEL FOR HODGIN]: Judge, I object to her characterization of I think. If she’s going to give an expert opinion, that’s one thing, but speculation, I think it would be something else.

¶ 7. Hodgin is not entitled to raise new issues on appeal that he has not first presented to the trial court for determination. Bush v. State, 895 So.2d 836, 842 (Miss.2005). Since objections must be specific in nature, the issue was never properly brought before the trial court. “In order to preserve an issue for appeal, counsel must object. The failure to object acts as a waiver.” Carr v. State, 873 So.2d 991, 1004 (Miss.2004) (citing Oates v. State, 421 So.2d 1025, 1030 (Miss.1982)).

¶ 8. We find that this issue is without merit.

II. The court erred in admitting the videotape without redacting inadmissible evidence prior to allowing the jury to view the videotape.

¶ 9. Hodgin asserts that the trial court erred in allowing the videotape of M.C.’s interview to be admitted into evidence without redacting a portion in which M.C. is asked whether he had any knowledge of Hodgin’s committing similar offenses with other children. Hodgin cites Mitchell v. State, 539 So.2d 1366, 1372 (Miss.1989), as authority. However, in Mitchell, a witness became confused and began testifying in specific detail about incidents that happened with other victims and then continued to confuse different incidents with different victims. Id. at 1369. The trial court in Mitchell granted a mistrial, but Mitchell was tried again and convicted. Mitchell is clearly distinguishable from this case.

¶ 10. This Court reviews the admission or exclusion of evidence for abuse of discretion. Clark v. State, 891 So.2d 136, 139 (Miss.2004) (citing Herring v. Poirrier, 797 So.2d 797, 804 (Miss.2000)).

¶ 11. Rule 404 of the Mississippi Rules of Evidence (M.R.E.) provides, in relevant part:

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

M.R.E. 404(b).

¶ 12. In the videotaped interview in this case, M.C. did not make a conclusive statement about any other incident. M.C. merely said that someone saw Hodgin in the bathroom with M.C. and M.C.’s cousin and that Hodgin was then on lockdown. M.C.’s statement does not include evidence of any other crimes, wrongs or acts. Therefore, we find that the trial court did not err in admitting the videotape.

¶ 13. Hodgin also asserts that the trial court erred in allowing M.C.’s mother to testify as to the statements M.C. made to her under Rule 803(25) of the M.R.E., which states:

(25) Tender Years Exception. A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

M.R.E. 803(25).

¶ 14. In this case, the hearing was conducted outside the presence of the jury, the trial court found substantial indicia of reliability, and the child testified. Accordingly, we find that this issue is without merit.

III. The court erroneously denied Hodgin’s right to confrontation by refusing to allow impeachment evidence concerning M.C.’s statements not being corroborated.

¶ 15. Hodgin asserts that, during cross-examination of Langendun, he should have been able to impeach M.C.’s statements to Langendun by showing that they were not corroborated by M.C.’s cousin. The trial court sustained the State’s objection, finding that Hodgin had the opportunity to call the cousin as a witness. We agree. Therefore, we find that this issue is without merit.

IV. The Court erred in denying Hod-gin’s motion to quash the indictment.

¶ 16. Hodgin asserts that the indictment is defective because it fails to provide the specific dates that the offenses occurred. The indictment states that the offenses occurred on or before November 24, 2002.

¶ 17. The question of whether an indictment is defective is an issue of law and is reviewed de novo by this Court. Failure to provide the correct date in an indictment does not render the indictment insufficient. Morris v. State, 595 So.2d 840, 842 (Miss.1991) (citing Miss. R.Crim. P. 2.05). The prosecution is required only to provide the defendant with the specific date of the act if at all possible. Wilson v. State, 515 So.2d 1181, 1183 (Miss.1987). In this case, as in Morris, the State narrowed the time frame as much as possible.

¶ 18. An indictment must contain (1) the essential elements of the offense charged, (2) sufficient facts to fairly inform the defendant of the charge against which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense. See Hamling v. U.S., 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). See also Love v. State, 211 Miss. 606, 52 So.2d 470 (1951). An indictment must inform a defendant of the nature and cause of the charges brought against him. Miss. Const. Ann. art. 3 § 26. Hodgin was put on notice of the nature and cause of the charges against him. Further, the victim’s testimony narrowed the time frame even more.

¶ 19. Accordingly, we find that this issue is without merit.

V. The jury’s verdict was against the overwhelming weight of the evidence and the sufficiency of the evidence.

¶20. The standard of review for a post-trial motion is abuse of discretion. The inquiry is whether the evidence shows “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Dilworth v. State, 909 So.2d 731, 736 (Miss.2005) (citing Carr v. State, 208 So.2d 886, 889 (Miss.1968)). “In other words, the question to be answered, viewed in the light most favorable to the prosecution, is whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Smith v. State, 925 So.2d 825, 830 (Miss.2006) (citations omitted). “Assuming arguendo that this Court may believe the evidence at trial failed to establish guilt beyond a reasonable doubt, that is, nevertheless an insufficient basis for reversal.” Id.

¶ 21. Hodgin merely asserts: “There is no way reasonable minded jurors could find the Appellant guilty of the indicted charge if the inadmissible evidence had not been admitted. As such, the convictions against the Appellant should be dismissed.” The evidence was admissible, as discussed herein. Further, the evidence was sufficient to support a conviction. Therefore, this argument is without merit.

¶ 22. A motion for a new trial challenges the weight of the evidence, and a reversal is warranted only if the trial court abused its discretion in denying the motion for a new trial. Dilworth, 909 So.2d at 737. “A greater quantum of evidence favoring the State is necessary for the State to withstand a motion for a new trial, as distinguished from a motion for J.N.O.V.” Id. (quoting Pharr v. State, 465 So.2d 294, 302 (Miss.1984)). “Only in ‘exceptional cases in which the evidence preponderates heavily against the verdict’ should the trial court invade the province of the jury and grant a new trial.... The verdict must be ‘so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.’ ” Dilworth, 909 So.2d at 737 (citations omitted).

¶ 23. In addition to the aforementioned evidence, witnesses also testified at trial regarding Hodgin’s access to M.C. and other visitors and the bathroom then used by both visitors and inmates, Hodgin’s attempts to place M.C. on his list of approved visitors, Hodgin’s unauthorized possession of photographs of M.C. stolen from M.C.’s grandfather and the letters written by Hodgin to M.C. and his family.

¶ 24. In this case, the jury’s verdict was not contrary to the overwhelming weight of the evidence. As such, this argument is without merit.

CONCLUSION

¶ 25. Accordingly, for the reasons stated above, the Sunflower County Circuit Court judgment of conviction for fondling and sexual battery and sentences of twenty years on each count to be served consecutively in the Mississippi Department of Corrections are affirmed.

COUNT ONE: CONVICTION OF FONDLING AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE SHALL NOT BE REDUCED OR SUSPENDED NOR SHALL APPELLANT BE ELIGIBLE FOR PAROLE OR PROBATION. COUNT TWO: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE SHALL NOT BE REDUCED OR SUSPENDED NOR SHALL APPELLANT BE ELIGIBLE FOR PAROLE OR PROBATION. SENTENCES SHALL RUN CONSECUTIVELY.

SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR.

      . Initials will be used to protect the minor's identity.


text:
    In re ESTATE OF Peter FARMER, Jr., Deceased by Peter FARMER, Sr., Administrator.
    No. 2006-CA-01378-SCT.
    Supreme Court of Mississippi.
    Sept. 13, 2007.

      Terry Wallace, attorney for appellant.
    Nancy H. Stuart, attorney for appellee.
    Before WALLER, P.J., DICKINSON and RANDOLPH, JJ.
   WALLER, Presiding Justice, for the Court.

¶ 1. Peter Farmer, Sr., as administrator of the Estate of Peter Farmer, Jr. (“Farmer”), filed a petition to determine heirs in the Chancery Court of Lowndes County. After hearing the evidence, the chancellor found an illegitimate minor son to be the sole heir at law. The administrator now appeals.

FACTS

¶ 2. Peter Farmer, Jr., was engaged to be married to LaQuante Sanders when Sanders gave birth to his illegitimate child on June 29, 2001. The parties do not contest the fact that the minor child was Farmer’s child. Farmer died on November 15, 2003, without ever marrying Sanders. A petition to determine Farmer’s heirs was filed by his father and notice of a hearing was served on Sanders, as the minor child’s mother. At the hearing, the chancellor found that “testimony revealed and no party disputed that the deceased, Peter Farmer, Jr., is listed as the father of [the minor child] on the minor child’s birth certificate and that Peter Farmer, Jr., acknowledged the birth certificate.” The chancellor held that the “paternity of [the minor child] had been established prior to the death of ... Peter Farmer, Jr.” An attested copy of the minor child’s birth certificate and a signed and notarized copy of the acknowledgment of paternity, both bearing the signature of Peter Louis Farmer, Jr., have been supplemented to the record by order of this Court.

DISCUSSION

¶ 3. We will not interfere with or disturb a chancellor’s findings of fact unless those findings are manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Smith v. Hollins, 905 So.2d 1267, 1270 (Miss.2005) (citations omitted). For questions of law, we employ a de novo standard of review and will reverse only for an erroneous interpretation or application of the law. Smith, 905 So.2d at 1270 (citations omitted).

WHETHER THE MINOR CHILD’S PATERNITY WAS ESTABLISHED PRIOR TO FARMER’S DEATH AND WHETHER HE CAN INHERIT DESPITE THE LAPSE OF TIME FROM FARMER’S DEATH.

¶ 4. Mississippi Code Annotated Section 93-9-28 (Rev.2004) establishes a procedure by which the natural father of an illegitimate child may voluntarily acknowledge the child as his own. Within twenty-four hours of the birth of the child, the health care providers who assisted in the delivery of the child provide the father with a form generated by the Mississippi Department of Health which states that “the execution of the acknowledgment of paternity shall result in the same legal effect as if the father and mother had been married at the time of the birth of the child.” The father completes and executes the form before a notary public associated with the health care provider. The form is then be forwarded to the Department of Health. Upon receipt, the Department of Health enters the name of the father on the certifícate of birth. Section 93-9-28 is the only statute which provides a method for a father voluntarily to acknowledge an illegitimate child as his own.

¶ 5. Mississippi Code Annotated section 91-1-15 (Rev.2004) requires an illegitimate child to establish paternity before, or within a specific period of time after, the death of the putative father. While Sanders admits she did not institute paternity proceedings within the required time, section 93-9-28 provides, “[T]he execution of the acknowledge Jment of paternity shall result in the same legal effect as if the father and mother had been married at the time of the birth of the child.” Miss.Code Ann. § 93-9-28 (Rev.2004). We hold the language of this section satisfies the requirements of section 91 — 1—15(3)(a), such that the minor can inherit from his natural father where the father has executed an acknowledgment of paternity.

CONCLUSION

¶ 6. In light of the evidence contained within the transcript and record as supplemented, we find the chancellor’s judgment to be supported by substantial evidence, and not manifestly wrong or clearly erroneous. Therefore, the chancellor’s judgment that the minor child is the sole heir-at-law of Farmer is hereby affirmed.

¶ 7. AFFIRMED.

SMITH, C.J., DIAZ, P.J., EASLEY, CARLSON, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR.


author: LAMAR, Justice, for the Court.

text:
    DELTA REGIONAL MEDICAL CENTER v. Michael VENTON, Individually and on behalf of all those entitled to recover for the Wrongful Death of Hattie Venton.
    No. 2004-CA-02208-SCT.
    Supreme Court of Mississippi.
    Sept. 13, 2007.

      Robert R. Stephenson, L. Carl Hag-wood, Jackson, attorneys for appellant.
    Michael M. Williams, Tylvester Goss, Jackson, attorneys for appellee.
    Before SMITH, C.J., DICKINSON and LAMAR, JJ.
   LAMAR, Justice, for the Court.

¶ 1. Hattie Venton was admitted to the Intensive Care Unit at Delta Regional Medical Center (DRMC) on January 7, 1999, after several fainting episodes. At the time, Venton was seventy-eight years old and suffered from multiple health problems such as anemia, gastrointestinal bleeding, hematuria, and atrial fibrillation. Approximately ten days after arriving at Delta Regional, Venton developed a decu-bitus ulcer (commonly referred to as a “bedsore”) on her coccyx that ultimately expanded into a wound measuring six by ten inches. On February 17,1999, Venton was transferred from DRMC to Health-South, a Louisiana rehabilitation facility, where the bedsore began to heal. She died on March 30,1999. The death certificate attributed the cause of death to respiratory failure, however, no autopsy was performed.

PROCEEDINGS

¶2. Charles Venton, Hattie Venton’s son, brought a wrongful death claim against DRMC and ten unnamed staff members. Because DRMC was a community hospital existing under the laws of the State of Mississippi, this case proceeded as a bench trial pursuant to the Mississippi Tort Claims Act (MTCA) Mississippi Code Annotated section 11-46-1 et seq. (Rev. 2002). Upon completion of the trial proceedings, the trial judge found “by a preponderance of the evidence that negligent acts and/or omissions of the nursing staff and other employees and personnel of DRMC in failing to adequately turn and reposition Hattie Venton, and in failing to provide proper hydration, were proximate contributing causes of the skin breakdown, decubitus ulcer development, regression and the death of Hattie Venton.”

¶ 3. As provided in Mississippi Code Annotated section 85-5-7 (Rev.1999), fault was apportioned between the physicians, who were not parties to the lawsuit, and DRMC. Each was found to be fifty percent at fault. The court awarded Venton’s estate $1,000,000 in damages, with $500,000 assessed against DRMC. This amount was reduced to $250,000 under the MTCA, but was again increased to $500,000, the amount of DRMC’s insurance coverage. DRMC contends that there was no proof of negligence on the part of its employees, no link between the degree of care and the development of bedsores, and no proximate causation between the ulcer and Ven-ton’s death.

DISCUSSION

I. Standard of Review

¶ 4. The standard by which an appellate court reviews factual determinations made by a trial judge sitting without a jury is the substantial evidence standard. Brewer Constr. Co. v. David Brewer, Inc., 940 So.2d 921, 925 (Miss.2006). Under such a standard, a lower court’s findings will not be reversed on appeal where they are supported by substantial, credible, and reasonable evidence. Donaldson v. Covington County, 846 So.2d 219, 222 (Miss.2003). DRMC argues that we should depart from this deferential standard and instead conduct a de novo review because several of Venton’s submitted findings of fact and conclusions of law were adopted verbatim by the trial court. In reviewing the record, we note that findings of fact and conclusions of law were submitted by both parties and that the trial court’s opinion contained some findings from each party in addition to the Court’s own findings.

¶ 5. The authority cited by DRMC in support of its proposition, Mississippi Department of Transportation v. Johnson, addressed the situation where findings of fact of only one party are adopted in toto. Johnson, 873 So.2d 108, 111 (Miss.2004) (emphasis added). There, the opinion noted that:

... proposed findings of fact and conclusions of law which Johnson’s lawyer mailed to the judge are identical to the findings of fact and conclusions of law which the judge signed on November 12, 2002. There can be no doubt that the trial judge adopted and entered verbatim Johnson’s proposed, findings of fact and conclusions of law. The only difference is that in the version signed by the trial judge, he “filled in the blanks” for the percentages of fault ....

Id. (emphasis added).

¶ 6. The situation above, where the trial judge adopted only one party’s findings and conclusions, is clearly distinguishable from the case at bar. Johnson does not mandate de novo review where a court organizes facts from both sides along with its own additional findings.

¶7. It is no secret that courts in Mississippi deal with heavy caseloads and, unfortunately, many are understaffed. The practice of using both parties’ submitted findings of fact and conclusions of law benefits judicial economy. This Court will not hinder practices that aid our court system when such actions are fair and just. We will therefore deviate from a deferential standard only when, as precedence suggests, only one party’s findings of fact are adopted in toto. See id. As this record reflects a collaboration of both parties’ facts and conclusions, along with original determinations from the trial court itself, the substantial evidence standard will be applied.

II. Sufficiency of the Evidence

¶ 8. To establish a prima facie case of medical negligence, a plaintiff must prove that (1) the defendant had a duty to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) the defendant failed to conform to that required standard; (3) the defendant’s breach of duty was a proximate cause of the plaintiffs injury, and; (4) the plaintiff was injured as a result. Burnham v. Tabb, 508 So.2d 1072, 1074 (Miss.1987). DRMC contends that Venton failed to prove the elements of breach and causation, thus it was entitled to a directed verdict.

A. Breach

¶ 9. The plaintiff presented two experts. The first was Dr. Roy Verdery, accepted by the court as an expert in the areas of internal medicine and geriatrics. He opined that DRMC and Venton’s doctors breached the standard of care in their treatment of Venton in the areas of nutrition, medication, turning, documentation and wound care.

¶ 10. Noting that nutrition is essential in the maintenance of skin integrity, especially in older people who are immobile, Dr. Verdery testified that Venton’s malnutrition while at DRMC contributed to the development of her decubitus ulcer. In illustrating his point, Dr. Verdery pointed to the fact that Venton lost thirty pounds in the month that she was at DRMC. This extreme weight loss led to a loss of protein which, as Dr. Verdery testified, is integral in maintaining the skin’s integrity. Although there were times when it was documented that Venton refused to eat, Dr. Verdery testified that nurses should have attempted to find more attractive food alternatives, such as ice cream. He also noted that certain antidepressants double as appetite stimulants, and said that the use of such medications has been within the standard of care in the geriatric community for many years although DRMC did not attempt to use them.

¶ 11. Dr. Verdery also testified to the standard of care in preventing decubitus ulcers by turning a patient. He noted that in order to prevent an ulcer from forming, a patient should be turned every two hours. Importantly, Dr. Verdery pointed out that turning a patient every two hours is not a “treatment” for people who have already formed decubitus ulcers, but that it is necessary to prevent an ulcer from forming in the first place. He noted that once an ulcer has formed, treatment must be “much more aggressive.”

¶ 12. Loureen Downes, a registered nurse, testified as a nursing expert. Reiterating Dr. Verdery’s testimony, Downes testified that the standard of care in prevention of bedsores mandates turning a patient at least every two hours. She pointed to medical records which showed that even after the pressure sore was diagnosed, Venton was not turned for periods ranging from three to upward of eight hours.

¶ 13. In addition to the standard of care for turning a patient, Downes testified to the standard of care in keeping a patient properly hydrated. She testified that the proper standard for hydration requires a patient to receive 2,000 to 3,000 ccs of fluid in a twenty-four-hour period. Proper hydration, according to Downes’s testimony, insures that the skin receives nutrients through the circulatory system. Without proper hydration, the skin does not receive these essential nutrients, and the risk of breakdown is increased. Downes pointed to medical records which revealed that Venton’s fluid intake as controlled by the staff of DRMC was far less than what was prescribed by her doctors, and grossly inadequate to meet her hydration needs.

¶ 14. DRMC asks this Court to disregard the plaintiffs expert testimony, arguing that the bulk of Dr. Verdery’s and Downes’s conclusions were unsupported and contradictory to the records. While Dr. Verdery did admit that only a physician could have ordered the pain medication, nutritional supplements, and special pressure-relieving bed that Venton required, the trial court allocated fault in these particular areas to the physicians, not DRMC, in its findings of fact. The trial court’s opinion was that DRMC’s liability was entirely based upon the failure to turn Venton and provide her with proper hydration.

¶ 15. As noted above, this Court will not disturb the findings of a trial judge sitting without a jury unless such findings were manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Chantey Music Publ., Inc. v. Mala- co, Inc., 915 So.2d 1052, 1055 (Miss.2005). Based upon the evidence discussed above, we find that the element of breach was sufficiently established. This issue is without merit.

B. Causation

¶ 16. DRMC’s next contention of error is that causation was not properly established by the plaintiff at trial. As to the development of the pressure sore, Dr. Verdery testified that the wound was a result of lack of proper hydration, nutrition, and turning on behalf of DRMC employees.

¶ 17. As to the cause of death, Dr. Verdery asserted that Venton died of sepsis from the decubitus ulcer. Basing his opinion on the medical records, he pointed to blood tests performed at HealthSouth rehabilitation facility that revealed bacter-oides fragilis bacteria in Venton’s bloodstream. Dr. Verdery stated that this bacteria is “very uncommonly found in people unless they have an anaerobic infection, an infection which is very difficult for air to get to, such as a decubitus ulcer or an infected bone at the bottom of a decubitus ulcer.”

¶ 18. After a brief explanation about the location of the bedsore and that location’s effect on treatment, Dr. Verdery was asked to correlate the bacteria and Ven-ton’s death. He testified that: “this constant infection in this large decubitus ulcer causes inflammatory reaction in the rest of the body. The liver begins to stop functioning, the heart doesn’t pump very well, the lungs don’t maintain their integrity and fill up with fluids ... [ajfter the other organs fail, death ensues.” It was Dr. Verdery’s opinion, to a reasonable degree of medical probability, that the bedsore caused Venton’s death.

¶ 19. The defense put on Dr. Calvin Ramsey as its medical expert. Dr. Ramsey disagreed with Dr. Verdery’s assessment and stated that in his opinion “Mrs. Venton died, according to the death certificate, of a respiratory problem. On the death certificate there is no mention made of anything about infection, or a decubitus more specifically.”

¶ 20. When there is a conflict of expert medical opinion, this Court has held it to be within the province of the fact-finder to determine the cause of death. See Cowan v. State, 399 So.2d 1346, 1348 (Miss.1981); Thompson v. State, 220 Miss. 200, 70 So.2d 341 (1954). Rarely is there a case in which all experts agree on all issues. Substantial and credible evidence was presented on both sides; it was the trial judge’s responsibility to determine which expert was the most reliable. We find this issue to be without merit.

III. Damages

¶ 21. DRMC asks this Court to reduce the amount of damages, arguing that the $1,000,000 judgment was excessive and against the overwhelming weight of the evidence. Our ease law holds that for a defendant to be entitled to a reduction, such damages “must be so excessive as to strike mankind, at first blush, as being, beyond all measure, unreasonable, and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption.” United States Fid. & Guar. Co. v. Estate of Francis, 825 So.2d 38, 47 (Miss.2002). The award is not to be set aside unless it is entirely disproportionate to the injury sustained. Gatewood v. Sampson, 812 So.2d 212, 222 (Miss.2002)(citing Illinois Central R.R. v. Gandy, 750 So.2d 527, 534 (Miss.1999)). Compensation in a wrongful death action is not limited to actual damages and lost wages, but extends to the pain and suffering of the deceased, as well as the loss of companionship and society. Thom as v. Hilburn, 654 So.2d 898, 903 (Miss.1995).

¶ 22. While in the care of DRMC, Ven-ton developed a bedsore measuring six by ten inches in diameter. The Court found that by the time Venton left DRMC on February 17, 1999, the ulcer was large enough that a volleyball could be placed inside it. Although both parties agreed that the standard of care mandates turning a patient every two hours, the medical records show that Delta Regional failed to meet this benchmark during the majority of Venton’s stay, even after she first developed a skin tear. In the medical records, a nurse changing Venton’s dressing described “picking out little pieces of bone from the dressing as it was removed from her backside.”

¶ 23. Testimony revealed that Venton experienced substantial pain and suffering from the time she entered the facility until her death. Comparing amounts deemed suitable in other negligence cases, an award of $1,000,000 is not outrageous. See Purdon v. Locke, 807 So.2d 373 (Miss.2001) (upholding award for $450,000 for medical negligence resulting in severe soreness and discomfort); Holmes County Bank & Trust Co. v. Staple Cotton Cooperative Ass’n., 495 So.2d 447 (Miss.1986)(re-instating jury verdict of $200,000 where seventy-five-year-old plaintiff incurred neck injuries). DRMC presented no evidence showing that the trial judge was influenced by passion, partiality, prejudice or corruption, therefore, this issue is without merit.

IV. Conclusion

¶24. For the foregoing reasons, the judgment of the lower court is affirmed.

¶ 25. AFFIRMED.

SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR.

      . During the pendency of this appeal, Charles Venton passed away, and Michael Venton was substituted as a party.

      . Mississippi Code Annotated section 11 — 46— 15(l)(b) (Rev.2002) states:
      In any claim or suit for damages against a governmental entity or its employee brought under the provisions of this chapter, the liability shall not exceed the following for all claims arising out of a single occurrence for all damages permitted under this chapter:
      ... (b) for claims or causes of action arising from acts or omissions occurring on or after July 1, 1997, but before July 1, 2001, the sum of Two Hundred Fifty Thousand Dollars ($250,000.00).

      .Mississippi Code Annotated section 11-46-17(4) (Rev.2002) provides that:
      Any governmental entity of the state may purchase liability insurance to cover claims in excess of the amounts provided for in Section 11-46-15 and may be sued by anyone in excess of the amounts provided for in Section 11-46-15 to the extent of such insurance carried; provided, however, that the immunity from suit above the amounts provided for in Section 11-46-15 shall be waived only to the extent of such excess liability insurance carried.

      . Specifically as to wound care, Dr. Verdery testified that it was a breach of care for Ven-ton’s doctors to prescribe peroxide and iodine treatments for Venton’s decubitus ulcer. Stating that the prescribed treatments actually hinder the growth of new cells, Dr. Verdery opined that using a moist saline gauze dressing was the applicable standard of care in the medical community for treating bedsores. The trial court agreed with Dr. Verdery's un-contradicted testimony on this point and attributed fault to Venton’s physicians, who were not parties to this suit, for any breach as to wound care.

      . One such medical record revealed that Ven-ton remained in one position for sixteen hours ori January 20, 1999, after which her decubi-tus ulcer regressed to Stage III.


author: ISHEE, J., for the Court.

text:
    Tavaris VAUGHN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-CA-01873-COA.
    Court of Appeals of Mississippi.
    Nov. 14, 2006.
    Rehearing Denied April 10, 2007.
    John David Weddle, Tupelo, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., IRVING, and ISHEE, JJ.
   ISHEE, J., for the Court.

¶ 1. Tavaris Vaughn pled guilty to the charge of sale of cocaine before the Circuit Court of Lowndes County on August 31, 2000. On May 22, 2002, the court sentenced Vaughn to a term of thirty years in the custody of the Mississippi Department of Corrections and ordered him to pay a fine in the amount of $5,000. Vaughn’s motion for post-conviction relief was denied by the circuit court. Aggrieved by the trial court’s decision Vaughn appeals. Finding no error, we affirm.

FACTS

¶ 2. Prior to the entry of this denial of post-conviction relief, Vaughn pled guilty to a charge of grand larceny and was sentenced to three years in the custody of the Mississippi Department of Corrections, with three years suspended, three years probation, and a fine in the amount of $1,000. His probation was revoked on November 13, 1998, and he was ordered to serve in the Regimented Inmate Discipline Program.

¶ 3. On or about November 5, 1999, a two-count indictment was issued against Vaughn for the sale of a schedule II controlled substance. Vaughn entered an open plea of guilty to Count I of the indictment on August 31, 2000. As a result of the guilty plea to Count I of the indictment, the State moved to retire to the file Count II of the indictment. The State also agreed to retire to the file an aggravated assault charge that was unrelated to this matter.

¶ 4. During the sentencing hearing, the assistant district attorney sought to introduce a witness who would testify as to the specifics of the aggravated assault charge that had been retired to the file. The court asked the assistant district attorney to describe what that testimony would be and further stated that this charge was an unrelated matter. The judge also said that the rules of evidence do not apply to sentencing hearings.

¶ 5. Lastly, the Lowndes County Sheriff sent a letter to the circuit judge informing him of Vaughn’s escape after having entered a guilty plea and of the injuries and damages that resulted thereof. He further outlined his discussion with the wife of a man who was injured when the car Vaughn was driving collided head-on with

her husband’s car while Vaughn was being chased by a Lowndes County deputy. The sheriff asked that Vaughn receive the maximum sentence.

¶ 6. On May 23, 2005, Vaughn filed a motion for post-conviction relief; it was denied without a hearing. Aggrieved by the court’s decision he asserts the following issues for this Court’s review: (1) whether the circuit court’s sentence of thirty years was improper, (2) whether the district attorney’s office made unsolicited, improper, and prejudicial comments to the court, (3) whether there was a factual basis to support his plea of guilty, and (4) whether the court erred in considering the letter submitted by the Lowndes County Sheriff.

STANDARD OF REVIEW

¶ 7. When reviewing the denial of a motion for post-conviction relief, we will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. Pace v. State, 770 So.2d 1052, 1053(¶ 4) (Miss.Ct.App.2000). Questions of law, however, are reviewed de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ISSUES AND ANALYSIS

I. Whether the circuit court’s sentence of 30 years was improper.

¶ 8. Although there may be questions as to whether or not this sentence was appropriate, this Court is of the opinion that the trial court did not commit reversible error. This Court has noted that when sentencing, a trial judge acts with the broadest of discretion as long as the sentence is within the statutory guidelines. See Hoops v. State, 681 So.2d 521, 537 (Miss.1996). It is within the legislative purview to define crimes and to assign punishment. Weaver v. State, 713 So.2d 860, 863(¶ 17) (Miss.1997).

¶ 9. The State correctly argues that the imposition of a sentence is within the discretion of the trial court. Holt v. State, 757 So.2d 1088, 1089(117) (Miss.Ct.App.2000) (citing Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)). Vaughn’s argument goes to the second prong of the proportionality analysis of Solem: a comparison of the sentence imposed with sentences that were imposed on others in the same jurisdiction. Vaughn points to similarly situated defendants who received less severe sentences and he uses this to assert that his sentence was disproportionate. In Womack v. State, 827 So.2d 55, 59(¶ 13) (Miss.Ct.App.2002), this Court stated that, “this fact alone does not prove that the sentences imposed here are grossly disproportionate to the crime committed.” The fact that other criminal defendants in Lowndes County Circuit Court who were convicted or pled guilty to the sale of cocaine received shorter sentences than Vaughn has no decisive bearing on whether or not his sentence was disproportionate. Thus, the circuit court did not err in sentencing Vaughn to thirty years in the custody of the Mississippi Department of Corrections. This issue is without merit.

II. Whether the district attorney’s office made unsolicited, improper, and prejudicial comments to the court.

III. Whether there was a factual basis to support the guilty plea.

¶ 10. Due to the similarity of these two issues, we will discuss them together. It is well settled that a defendant who pleads guilty waives his or her “privilege against self-incrimination, the right to confront and cross-examine the prosecution’s witnesses, the right to a jury trial and the right that the prosecution prove each element of the offense beyond a reasonable doubt.” Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989). Thus, the comments that the district attorney’s office made about the aggravated assault were not improper or prejudicial and the fact that cross-examination did not transpire has no bearing. Furthermore, the State was not required to prove each element of the offense since Vaughn was pleading guilty.

¶ 11. In Smith v. State, 636 So.2d 1220, 1225 (Miss.1994), the Court ruled, “it is essential that an accused have knowledge of the critical elements of the charge against him, that he fully understand the charge, how it involves him, the effects of a guilty plea to the charge, and what might happen to him in the sentencing phase as a result of having entered the plea of guilty.” We believe Vaughn had such knowledge.

¶ 12. Uniform Circuit and County Court Rule 8.04(A)(4)(c) provides that where the defendant wishes to plead guilty the court has the duty to address the defendant and make the determination as to whether or not “the accused understands that by pleading guilty (s)he waives his/her constitutional rights of trial by jury, the right to confront and cross-examine adverse witnesses and the right against self-incrimination.” Once the trial court completes its inquiry, having advised the defendant of the consequences of a guilty plea, the plea is considered voluntary. Reeder v. State, 783 So.2d 711, 719(¶ 30) (Miss.2001). We are of the opinion that the trial judge made such a determination and after reviewing the record this Court finds that there was a factual basis to support Vaughn’s plea and that it was voluntarily made. These issues are without merit.

IV.Whether the court erred in considering the letter submitted by the Lowndes County Sheriff.

¶ 13. Vaughn argues that the trial court was improperly influenced by a letter that was sent to the court from the Lowndes County Sheriff. We disagree. There is nothing present that would suggest that the trial judge was improperly influenced or that the letter was even given credence.

¶ 14. Nevertheless, trial judges may consider all kinds of information when sentencing. In Summerall v. State, 734 So.2d 242, 246(¶ 21) (Miss.Ct.App.1999) (citing Evans v. State, 547 So.2d 38, 41 (Miss.1989)), the court stated that “the trial judge here, sitting without a jury, had broad discretion in the things he was able to consider. He may appropriately conduct an inquiry broad in scope, largely unlimited as to the kind of information he may consider, or the source from which it may come.” Therefore, this issue is without merit.

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

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


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

text:
    Henry Lonzo BOONE, III, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02525-COA.
    Court of Appeals of Mississippi.
    Nov. 28, 2006.
    Rehearing Denied June 12, 2007.

      Bernard Gautier, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and GRIFFIS, JJ.
   MYERS, P.J., for the Court.

¶ 1. Before this Court is an appeal filed on behalf of Henry Lonzo Boone, III from his conviction in the Circuit Court of Jackson County of capital murder during the commission of a robbery as defined by Mississippi Code section 97-3-73 (2004). On August 19, 2004, the jury returned a guilty verdict against Boone, finding that on November 6, 2002, Boone shot and killed his own father, before fleeing the scene with his father’s gun and car. The trial judge sentenced Boone to a term of life, without the possibility of parole, in the custody of the Mississippi Department of Corrections. Boone now appeals raising the following issues:

I. WHETHER THE TRIAL COURT ERRED IN DENYING BOONE’S MOTION TO DISMISS FOR FAILURE TO GRANT A SPEEDY TRIAL?
II. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GIVE BOONE’S “TWO THEORY” INSTRUCTION TO THE JURY OR ALTERNATIVELY IN FAILING TO REFORM ANY DEFICIENCIES IN THE INSTRUCTION OR OFFER COUNSEL AN OPPORTUNITY TO PREPARE ANOTHER INSTRUCTION?
III. WHETHER THE VERDICT OF THE JURY WAS CONTRARY TO LAW AND AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?
IV. WHETHER BOONE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL?

¶2. Finding no error, we affirm the ruling of the trial court.

STATEMENT OF THE FACTS

¶ 3. At approximately 11:20 p.m., on November 6, 2002, Deputy Brian Cooper of the Jackson County Sheriffs Department and Lieutenant Brian Vice of the Moss Point Police Department were simultaneously dispatched to the scene of a single car roll-over accident on Saracennia Road a few miles north of Moss Point, Mississippi. At the scene of the accident, the officers discovered a white male trapped in a Ford Taurus bearing Mississippi license plate number U.S. Armed Forces 1732 D and registered to Henry Lonzo (H.L.) Boone, II. However, the driver and sole occupant of the vehicle was H.L.’s son, Henry Lonzo Boone, III (Boone). Boone was unconscious and suffering from life-threatening injuries.

¶ 4. While emergency medical technicians worked to remove Boone from the vehicle, Lieutenant Vice conducted a routine sweep of the accident debris field. Approximately seventy feet from the overturned vehicle, Lieutenant Vice discovered a .38 caliber revolver. Lieutenant Vice retrieved the revolver and immediately turned it over to Deputy Charlie Myers of the Jackson County Sheriffs Department. Deputy Myers turned the weapon over to Deputy Cooper, who then cleared the chamber by dropping the three live rounds and two spent shell casings contained therein onto the back seat of his patrol car. Deputy Myers then reported the revolver’s serial number to the National Crime Information Computer, secured the weapon and its contents in his patrol car, and returned to assist with the extraction of Boone.

¶ 5. Sergeant Bryan White of the Jackson County Sheriffs Traffic Division arrived on the scene of the accident at approximately 11:45 p.m. Shortly thereafter, Deputies Cooper and Myers were dispatched from the accident scene to a burglary in progress at 9490 Lotus Drive, less than three miles from the accident scene. The deputies arrived within minutes of the dispatch, and immediately conducted a sweep of the exterior of the residence where they discovered an elderly man on the back patio. The unidentified man was bleeding profusely and had lost auditory function as a result of a gunshot wound to the head. After determining that the injured man was not a threat, the deputies asked the homeowner, Jan Pendergrass, to step outside. Pendergrass then identified the man as her father and next door neighbor, H.L. Boone. H.L. had apparently been trying to wake Pendergrass, but in his weakened condition had managed only to arouse her suspicion that someone was attempting to break into her home.

¶ 6. Once an ambulance had arrived and H.L. was under the care of emergency medical personnel, Deputies Cooper and Myers walked next door to H.L.’s home. There they encountered a blood smeared doorway and blood soaked recliner with a .38 caliber bullet lodged in the headrest. The deputies recalled that they had recovered a .38 caliber revolver minutes earlier at the scene of Boone’s accident, and that the car in which Boone had been driving was registered to H.L. Immediately the deputies recognized the possibility that Boone may have shot his father while robbing him of his gun and ear. The investigation then proceeded as an assault during the commission of a robbery. However, four days later, on November 10, 2002, H.L. Boone died as a result of his wounds, never having identified his attacker. The investigation was then elevated from an assault during the commission of a robbery, to murder during the commission of a robbery, a capital offense.

¶ 7. Meanwhile, Boone was transported to Singing River Hospital in Pascagoula, where he remained in a com a for nearly three weeks. On November 8, 2002, and prior to Boone’s release from the hospital, law enforcement officials formally requested that the State Crime Lab conduct gunshot residue (GSR) analysis on samples taken from Boone’s hands and from the steering wheel of his father’s car. On November 26, 2002, Boone was released from the hospital and immediately taken into custody on the charge of capital murder. However, due to an apparent combination of backlog and neglect, the crime lab failed to complete the GSR report on Boone and the steering wheel until August 19, 2003. Despite the fact that no traceable GSR was found on either Boone or the steering wheel, the district attorney presented the evidence against Boone to a grand jury, and an indictment was returned on October 9, 2003, charging Boone with capital murder. Boone, who had been in custody since his arrest on November 26, 2002, filed a motion to dismiss for failure to grant a speedy trial on November 5, 2003, he was arraigned on January 23, 2004, and his trial was set for May 3, 2004, but continued upon an agreed order until August 16, 2004.

¶ 8. Boone’s trial began as scheduled on August 16, 2004, and substantial circumstantial evidence was presented in support of the State’s argument that a drunken and murderous Boone shot his own father, in cold blood and with his father’s own gun, then fled the scene with the gun and in his father’s car. The evidence presented by the State included the testimony of Michael Knight that at or around 11:00 p.m. on November 6, 2002, after Knight and Boone had spent some time drinking beer together, Knight dropped Boone off at Boone’s trailer home. Boone’s trailer home is located approximately 100 yards from his father’s home and 150 yards from the home of his sister, Jan Pendergrass. Several area residents testified to hearing strange noises shortly after 11:00 p.m. One neighbor testified to hearing loud bangs, similar to the repeated slamming of a car door, and another testified that she thought she heard her horses kicking the side of her barn. Both neighbors testified to hearing a car door slam, tires squeal, and a car speed off from the area moments after hearing the unidentified loud bangs. There was also testimony from Phillip Dees, H.L.’s grandson-in-law and Boone’s nephew-in-law, that the gun found at the scene of Boone’s accident belonged to H.L. and was kept in a magazine rack in the den where H.L. was shot. Furthermore, ballistics tests proved that the gun found at the scene of Boone’s accident fired the bullet found lodged in the headrest of H.L.’s blood soaked reeliner. The forensic evidence suggested that the assailant fired once, grazing H.L.’s cheek and earlobe, and then fired a second and ultimately fatal shot into the front left portion of H.L.’s head. Finally, a State Crime Lab expert testified that the absence of GSR on Boone’s hands or on the steering wheel in no way proved that he had not recently fired a weapon.

¶ 9. In his defense, Boone first argued that the bullet recovered from his father’s body was too badly damaged to be traced to a specific gun. He also argued that the two spent shell casings found in the .38 caliber revolver recovered from the scene of his accident did not match the three live rounds in the gun or any of the boxes of unused rounds found in H.L.’s home. Boone stressed that the GSR analysis performed on his hands and on the steering wheel were negative and that his fingerprints were not found on either the bullets or the murder weapon. Furthermore, he asserted that although he has no recollection of the night in question, he loved his father and would not have done anything to hurt him. Boone attributes his amnesia as to the events of the evening to an' alcoholic blackout or alternatively to the trauma suffered as a result of his accident. Blood alcohol concentration (BAC) analysis performed on Boone revealed that his BAC was .264% on the night of the accident, more than three times the legally permissible minimum level for the operation of a motor vehicle under Mississippi Code Annotated section 63-11-30(1) (Rev. 2004).

¶ 10. Despite the lack of direct evidence, the jury found the circumstantial evidence propounded by the State sufficient to find Boone guilty of capital murder, and handed down its conviction on August 19, 2004. Boone filed a motion for a new trial on August 27, 2004. After a hearing, the trial judge denied Boone’s motion and subsequently sentenced him to a term of life without the possibility of parole. From the disposition of the trial court, Boone now appeals.

LEGAL ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN DENYING BOONE’S MOTION TO DISMISS FOR FAILURE TO GRANT A SPEEDY TRIAL?

¶ 11. Boone’s first assignment of error is that the trial court erred in denying his motion to dismiss for failure to grant a speedy trial. “A defendant in a criminal case has a right to a speedy trial, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article 3, § 26 of the Mississippi Constitution.” Sharp v. State, 786 So.2d 372, 377(¶ 4) (Miss.2001). The Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” In addition, Mississippi Code Annotated section 99-17-1 (2004) creates a statutory right to a speedy trial. Boone makes no allegation of a statutory violation and only challenges the trial judge’s failure to grant his motion to dismiss on a constitutional basis.

STANDARD OF REVIEW

¶ 12. Our standard of review is manifest error. Mitchell v. State, 792 So.2d 192, 213(¶ 80) (Miss.2001). On appeal, factual determinations of a trial judge made in ruling on a motion to dismiss are entitled to the same deference as a jury-verdict and will not be reversed unless manifestly wrong. Id. Additionally, we must review Boone’s assertion of error for failure to grant a speedy trial under the four-factor balancing test as laid out by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and adopted by the Mississippi Supreme Court in Wells v. State, 288 So.2d 860, 862-63 (Miss.1974). The factors which must be balanced in light of the surrounding circumstances and on a case-by-case basis are: (1) the length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) any prejudice to the defendant resulting from the delay. Sharp, 786 So.2d at 372(¶ 15) (citing Barker, 407 U.S. at 530, 92 S.Ct. 2182).

DISCUSSION

¶ 13. In applying the Barker factors to the present case, we note that the application is not mechanical; rather, we must look to the totality of the circumstances to determine if Boone was unlawfully denied his Sixth Amendment right to a speedy trial. Herring v. State, 691 So.2d 948, 955 (Miss.1997). Our Barker analysis follows:

1.Length of Delay

¶ 14. The first factor has been called a triggering mechanism, because until there is some delay which is presumptively prejudicial, there is no need for an inquiry into the remaining balancing factors. Barker, 407 U.S. at 532-33, 92 S.Ct. 2182. After review of the trial court record, we find the delay from Boone’s arrest to his trial to be approximately 522 days. “A delay of eight months or more between arrest and trial is presumptively prejudicial.” Reynolds v. State, 784 So.2d 929, 933(¶ 10) (Miss.2001). Where, as here, there has been an extensive delay prior to trial, that delay, “must be weighed heavily in favor of [the defendant].” Herring, 691 So.2d at 955. In the case sub judice, there was a ten-month delay between the arrest and indictment, and another six months passed between the indictment and the first trial setting. The State acknowledges that the delay in this case weighs in favor of Boone and requires this Court to apply the remaining Barker factors. However, this delay is not conclusively weighed against the State, and may be rebutted when balanced against the remaining factors. Id.

2. Reason for the Delay

¶ 15. Once the delay is found to be presumptively prejudicial, the burden of persuasion shifts to the prosecution to produce evidence justifying the delay. Id. (citing State v. Ferguson, 576 So.2d 1252, 1254 (Miss.1991)). The lower court found that the overwhelming majority of the delay in this case was a result of neglect on the part of the State Crime Lab in failing to timely process the physical evidence. Our supreme court has determined such delay to be neutral and not to weigh heavily against the State for purposes of determining constitutional speedy trial violations. State v. Magnusen, 646 So.2d 1275, 1281 (Miss.1994). Thus, this factor does not weigh in favor of either party.

3. Defendant’s Assertion of his Right

¶ 16. The defendant’s assertion of his right to a speedy trial is afforded strong evidentiary weight. Barker, 407 U.S. at 531, 92 S.Ct. 2182. It is well-established that the State bears the burden of bringing the accused to trial in a speedy manner. Id. However, “the defendant bears some responsibility to assert his right to a speedy trial, and the failure to assert the right will make it difficult to prove he was denied a speedy trial.” Taylor v. State, 672 So.2d 1246, 1262 (Miss.1996). The record indicates that Boone filed a motion to dismiss for failure to grant a speedy trial on November 5, 2006, but this Court has consistently upheld the ruling of our supreme court in Perry v. State, 637 So.2d 871, 875 (Miss.1995), that “a demand for dismissal is not the equivalent of a demand for speedy trial.” See, e.g., Swindle v. State, 755 So.2d 1158, 1166(¶ 23) (Miss.Ct.App.1999). Here, the trial judge reviewed the speedy trial claim presented by Boone, analyzed the circumstances under the appropriate considerations, determined that the delay was not to be weighed against the State, and denied Boone’s motion to dismiss. Boone did not make a demand for a speedy trial until April 15, 2004, nearly seventeen months after his arrest, six months after he was indicted, four months after his trial date had been set, and less than three weeks before the trial was scheduled to commence. Thereafter, Boone’s attorney entered an agreed order of continuance with the assistant district attorney to postpone the case until August 16, 2004. Thus, this factor weighs heavily against Boone and in favor'of the State.

A Prejudice to the Defendant

¶ 17. The burden of persuasion is again upon the prosecution to show that Boone suffered no prejudice through the delay. Herring, 691 So.2d at 956. After review of the record, we can find no evidence of any actual prejudice suffered by Boone from the delay. The evidence acquired by the delay (negative gunshot residue test results) could be viewed as exculpatory, and therefore, the State acquired no advantage or benefit from the delay. Further, Boone’s assertion that the pretrial incarceration was oppressive is without merit. Boone made no attempt to secure bail, and therefore, he cannot argue that the incarceration caused him prejudice when he neither attempted to avoid it nor brought forth evidence of how the incarceration either disrupted his employment, drained his financial resources, curtailed his associations, subjected him to public obloquy, or created anxiety in him, his family, or friends. Id. This factor, too, weighs heavily against Boone and in favor of the State.

¶ 18. When evaluating Boone’s speedy trial claim under the totality of the circumstances, and after applying the Barker factors, we hold that Boone’s constitutional right to a speedy trial was not violated. Accordingly, we find no manifest error in the trial court’s denial of Boone’s motion to dismiss. Boone’s assignment of error is without merit.

II. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GIVE BOONE’S “TWO THEORY” INSTRUCTION TO THE JURY OR ALTERNATIVELY IN FAILING TO REFORM ANY DEFICIENCIES IN THE INSTRUCTION OR OFFER COUNSEL AN OPPORTUNITY TO PREPARE ANOTHER INSTRUCTION?

¶ 19. Boone’s second assignment of error is that the trial court erred in refusing to provide the jury with his proposed “two-theory” instruction D-6. Alternatively, Boone argues that if the instruction was inartfully worded, that the court should have either reformed the deficiencies or allowed his counsel an opportunity to prepare another instruction. During a conference on the jury instruction, the State properly objected to proposed instruction D-6, and the trial court ruled that the subject matter of the instruction was fully covered in other instructions already accepted by the court and that giving the instruction would be redundant.

STANDARD OF REVIEW

¶ 20. “In determining whether error lies in the granting or refusal of a particular instruction, the instructions actually given must be read as a whole.” Johnson v. State, 823 So.2d 582, 584(¶ 4) (Miss.Ct.App.2002). If the instructions, when read as a whole, fairly announce the law of the case and create no injustice, no reversible error will be found. Id. Further, no one instruction is to be taken out of context. Poole v. State, 826 So.2d 1222, 1230(¶27) (Miss.2002). Finally, 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 covered fairly elsewhere in the instructions, or is without foundation in the evidence. Id.

DISCUSSION

¶ 21. On appeal, Boone correctly argues that the case against him was based in large part, if not entirely, on circumstantial evidence. “In a case where all the evidence tending to prove the guilt of the defendant is circumstantial, the trial court must grant two jury instructions.” Jones v. State, 797 So.2d 922, 928-29(¶26) (Miss.2001) (see Parker v. State, 606 So.2d 1132, 1140 (Miss.1992)). The required instructions are:

First, the court must grant a jury instruction that every reasonable hypothesis other than that of guilt must be excluded in order to convict ... in addition to giving an instruction on circumstantial evidence, the trial court must grant a “two-theory” instruction such as D-7....

Id.

Instruction D-7, given by the trial court in Parker, 606 So.2d at 1140, reads as follows:

The Court instructs the jury that if there be a fact or circumstance in this case susceptible of two interpretations, one favorable and the other unfavorable to [the defendant], when the jury has considered such fact or circumstance with all the other evidence, if there is reasonable doubt as to the correct interpretation, you, the jury, must resolve such doubt in favor of [the defendant], and place upon such fact or circumstance the interpretation most favorable to him.

Id.

¶ 22. In the case sub judice, the trial court granted the typical circumstantial evidence instruction. However, Boone argues that the court failed to provide the jury with the required “two-theory” instruction when it failed to give proposed instruction D-6. The portion of the instruction which Boone argues should have been allowed reads as follows:

So, if the Jury, after careful and impartial consideration of all of the evidence in the case, has a reasonable doubt that a Defendant is guilty of the charge, it must acquit. If the Jury views the evidence in the case as reasonably permitting either of two conclusions — the Jury should of course adopt the conclusion of innocence.

¶ 23. No per se “two-theory” instruction was given to Boone’s jury. However, when the jury instructions are read as a whole, we find that the law is correctly stated and the provisions of the refused instruction are fairly covered elsewhere in the instructions. First, proposed instruction D-6 provides: “if the Jury, after careful and impartial consideration of all of the evidence in the case, has a reasonable doubt that a Defendant is guilty of the charge, it must acquit.” Likewise, instruction D-5, given to the jury, provides in part: “The State must prove each and every element of the crime charged beyond a reasonable doubt and if you find that the State failed to prove each element of the crime charged beyond a reasonable doubt, then you must acquit the Defendant of the crime charged.” Second, proposed instruction D-6 provides: “If the Jury views the evidence in the case as reasonably permitting either of two conclusions-the Jury should of course adopt the conclusion of innocence.” Similarly, instruction D-2, given to the jury, provides in part: “You are instructed that if a reasonable doubt does arise, you must resolve said doubt, if any, in favor of the defendant and return a verdict of not guilty.” Therefore, we find that when read as a whole, the instructions given to the jury accurately state the law and fairly cover the content of a proper “two-theory” instruction.

¶ 24. We agree that Boone was entitled to have jury instructions given which presented his theory of the case. See Poole v. State, 826 So.2d at 1230(¶ 27). However, upon our review of the record we find no evidence as to what Boone’s theory might have been. In closing arguments, Boone’s counsel alluded to alternative theories such as suicide or a mystery gunman who just so happened to have discarded the murder weapon at the exact location where Boone would later crash his father’s vehicle, but we find no evidence in the record to support either theory as a reasonable hypothesis which should have been considered by the jury. As to Boone’s alternative argument, we find proposed instruction D-6 to have been adequately worded, although redundant, and therefore, we do not address whether the court should have either reformed the deficiencies or allowed his counsel an opportunity to prepare another instruction. Accordingly, we find no reversible error in the trial court’s refusal to give proposed jury instruction D-6. This issue is without merit.

III. WHETHER THE VERDICT OF THE JURY WAS CONTRARY TO LAW AND AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 25. Boone’s third assignment of error is that the jury’s verdict was contrary to the overwhelming weight of the evidence. On this basis, Boone filed a motion for a new trial on August 27, 2004. The motion was denied. First, we note that before Boone may be entitled to a reversal based on the insufficiency of the evidence, he must overcome a formidable standard of review.

STANDARD OF REVIEW

¶ 26. “In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Herring v. State, 691 So.2d at 957 (citing Thornhill v. State, 561 So.2d 1025, 1030 (Miss.1989)). “Only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Id. (citing Benson v. State, 551 So.2d 188, 193 (Miss.1989)). Thus, the scope of review on this issue is limited in that all evidence must be construed in the light most favorable to the verdict. Id. (citing Mitchell v. State, 572 So.2d 865, 867 (Miss.1990)).

DISCUSSION

¶ 27. Our review of the record makes clear that there was ample circumstantial evidence for the jury to convict Boone of capital murder. First, there was testimony that placed Boone at or near the scene of the crime at approximately 11:00 p.m. on the night of November 6, 2002. Next, several area residents testified to hearing loud bangs shortly after 11:00 p.m., and to hearing a car door slam, tires squeal, and a car speed off from the area moments after hearing the unidentified loud bangs. There was also testimony that the revolver found at the scene of Boone’s accident belong to H.L. Furthermore, ballistics tests proved that the revolver found at the scene of Boone’s accident fired the bullet that was lodged in the headrest of H.L.’s blood-soaked recliner. Finally, a State Crime Lab expert testified that the absence of GSR on Boone’s hands or on the steering wheel in no way proved that he had not recently fired a weapon.

¶28. The facts, when -viewed in the light most favorable to the verdict, indicate the a jury could find beyond a reasonable doubt and to the exclusion of every reasonable hypothesis that Boone shot his father in the head and then fled the scene with his father’s revolver and in his father’s car. The lower court correctly denied Boone’s motion for a new trial, and this Court will not disturb the jury verdict where, as here, no unconscionable injustice will result and there is ample evidence, albeit circumstantial, to support the jury’s findings. We find that the jury verdict was not against the overwhelming weight of the evidence, and therefore, affirm the verdict.

IV. WHETHER BOONE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL?

¶ 29. Boone’s final assignment of error is that his counsel rendered constitutionally ineffective assistance. Boone asserts counsel error on four grounds: (1) failure to file a motion demanding a speedy trial, (2) failure to question crime lab witnesses as to whether the lab would have conducted the gunshot residue test sooner had the district attorney requested such performance, (8) failure to argue that the lack of diligent pursuit of timely test results by the district attorney was oppressive conduct attributable to the State, and (4) failure to submit a proper “two-theory” instruction.

STANDARD OF REVIEW

¶ 30. Claims of ineffective assistance of counsel are reviewed by using the two-pronged test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail on a claim of ineffective assistance of counsel, Boone has the burden of proof to show by a preponderance of the evidence that (1) counsel’s performance was deficient, and (2) that the deficiency did, in fact, prejudice the defense’s case so as to prevent a fair trial. Id.; Hall v. State, 735 So.2d 1124, 1127(¶ 6) (Miss.Ct.App.1999). In determining whether the first prong of Strickland, concerning counsel’s performance has been satisfied, we must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.... ” Id. at 689, 104 S.Ct. 2052. The second prong of the Strickland test requires that Boone prove prejudice by showing that there was a reasonable probability, that but for counsel’s errors, the trial court’s result would have been different. Id. at 699, 104 S.Ct. 2052. Whether the prongs of this test are met is determined by an examination of the totality of the circumstances. Id.

DISCUSSION

¶ 31. After review of the record, we cannot say that any of Boone’s assertions pass muster under the Strickland test. First, the failure to file a motion demanding a speedy trial cannot be said to have affected the outcome of the trial because the evidence obtained by the delay was arguably exculpatory. As to Boone’s second and third assignments of counsel error, we follow the sound holding of the Mississippi Supreme Court that decisions to call witnesses, ask certain questions, or make particular objections fall within the purview of the attorney’s trial strategy and “cannot give rise to an ineffective assistance of counsel claim.” Carr v. State, 873 So.2d 991, 1003(¶27) (Miss.2004). Finally, as to the failure to submit a proper “two-party instruction,” we note that Boone argued in his second assignment of error that the trial court should have allowed the “two-party” theory” proposed by his counsel. We find the instruction complained of to be legally sufficient; therefore, we cannot hold that it was ineffective assistance of counsel to propose that the instruction be given to the jury as written. Furthermore, this Court will not allow a party to argue that an instruction was proper and the court’s failure to provide the jury with that instruction was in error, and in the same appeal argue that the instruction is insufficiently or inartfully worded, and therefore, an example of ineffective assistance of counsel. Such obvious contradictions will not hold weight with this Court. Considering the totality of the circumstances, the performance of Boone’s trial counsel was not deficient, nor did it prejudice his case in any way. Therefore, Boone has failed to meet his burden of proof under the two-part test set out in Strickland, and his claim of ineffective assistance of counsel fails.

CONCLUSION

¶ 32. After a thorough review of the trial court record, and having fully analyzed each of Boone’s four assignments of error under the applicable legal standards, we find each of Boone’s claims to be without merit. The trial court did not err in refusing to grant Boone’s motion to dismiss for failure to grant a speedy trial. The substance of a proper “two-theory” instruction was fully and adequately covered in the instructions given to the jury. The jury’s verdict was not against the overwhelming weight of the evidence. Finally, Boone’s assistance of counsel was not constitutionally ineffective. Accordingly, the judgment of the Circuit Court of Jackson County is affirmed.

¶ 33. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE WITHOUT THE POSSIBILITY OF PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

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

      . The National Crime Information Computer (NCIC) aids law enforcement agencies in determining if a gun has been reported stolen by running the serial number through a national database.


text:
    Jennifer Erin WILLIAMSON, Appellant v. William Dale WILLIAMSON, Appellee.
    No. 2004-CA-02519-COA.
    Court of Appeals of Mississippi.
    March 13, 2007.
    Rehearing Denied June 19, 2007.

      Patricia Peterson Smith, attorney for appellant.
    Jennifer Powell Fortner, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J., for the Court.

¶ 1. On December 10, 2004, the Chancery Court of Warren County entered an amended memorandum opinion and final judgment, which denied Jennifer Williamson’s motion to modify the custody of a minor child. She appeals to this Court, asserting two issues: (1) the chancery court erred in failing to grant a change in custody of the minor child, and (2) the chancery court erred in finding her request for a grant of habeas corpus for the child in question was moot. Finding no error, we affirm.

FACTS

¶ 2. Dale and Jennifer Wilson were divorced on August 9, 2001, upon the grounds of irreconcilable differences. By agreement of the parties, Dale was given primary physical custody of the only child of the marriage, their daughter, Skyler, who was born on November 2, 1999. While at the time of the divorce it was not known that Skyler suffered from any medical condition, the record shows that there had been various diagnoses of developmental delay, including speech deficits, possible autism, a definitive diagnosis of autism, and possible mental retardation.

¶ 3. At the time of the divorce, the couple lived in a mobile home next to Jennifer’s mother. After the divorce, Jennifer moved into her mother’s home, and Dale and Skyler remained in the mobile home. Dale worked in the gaming industry. Jennifer was a college student and was not represented by counsel in the divorce.

¶ 4. In the summer of 2002, Dale and Skyler, along with Dale’s then girlfriend Sina, moved to Philadelphia, Mississippi, where Dale and Sina obtained employment in a casino. Dale and Sina subsequently married. Shortly after the move, Jennifer began asking to have Skyler evaluated for developmental delays. At the age of three, she could not speak intelligibly. In July 2002, Skyler was evaluated at Hud-speth Regional Medical Center, and it was recommended that she be placed in her home school district’s early intervention program. For reasons Dale never adequately explained, he failed to immediately follow through on this recommendation.

¶ 5. On October 31, 2002, Jennifer filed a petition to modify the divorce decree and sought to be named the primary custodial parent. Jennifer asserted that Skyler was not developing physically, nor were her verbal abilities developing, as one would expect among like aged children, and she sought primary custody. During a three day hearing, the chancery court found that an expert witness accepted by both parties, Dr. Wood Hiatt, testified that Skyler may be severely mentally retarded. However, Dr. Hiatt stated that Dale’s delay in accessing treatment for Skyler was not neglect, and it was difficult for parents, especially a young parent such as Dale, to accept and appreciate the needs of a child such as Skyler. Following the hearing, the chancery court entered a final judgment on March 7, 2003, denying Jennifer’s petition to modify custody. Jennifer did not file a timely appeal from this order.

¶ 6. On April 14, 2003, after retaining different counsel, Jennifer filed a M.R.C.P. Rule 60(b)(1) motion for relief from judgment or in the alternative modification of custody. In this pleading, Jennifer alleged that the chancery court placed undue weight upon the testimony of Dr. Hiatt and that Dale and Sina had made factual misrepresentations to the chancery court, including the following: Skyler was enrolled in special education in Neshoba County, and. Dale and Sina were best able to provide for Skyler’s special needs because of Sina’s nursing certification. The M.R.C.P. Rule 60(b)(1) motion also asserted that immediately after the hearing, without notice to either the chancery court or Jennifer, Dale and Sina quit their employment in Mississippi and moved to Alaska, taking Skyler with them, and this move had been planned prior to the hearing in February of 2003 and final judgment of March 7, 2003. Further, the pleading asserted that the special education services that had been obtained in Alaska were insufficient to meet Skyler’s needs.

¶ 7. On April 14, 2003, Jennifer filed a petition for habeas corpus, which was based on similar assertions of factual misrepresentations by Dale and Sina, seeking temporary custody of Skyler until such time as a hearing upon the M.R.C.P. 60(b)(1) motion could be had. Ultimately, the writ did issue, but it appears from the record that the parties entered into at least two agreed orders of visitation, with continuances entered on enforcing the writ, and there is no suggestion that Dale attempted to evade the chancery court’s jurisdiction.

¶ 8. In January of 2004, and continuing during August of 2004, the chancery court held a hearing upon the M.R.C.P. 60(b)(1) motion and the petition for habeas corpus.

¶ 9. On December 10, 2004, the chancery court entered its amended memorandum opinion and final judgment, which is presently the subject of appeal to this Court. The chancery court denied the M.R.C.P. 60(b)(1) motion and found the habeas corpus petition was moot. In doing so, the chancery court made findings of fact. These included the following: the court did not unduly rely upon the testimony of Dr. Hiatt, and the record before it showed that Dale was taking Skyler to an ear, nose and throat specialist, and hoped that a tonsillectomy would help with the speech defect. He enrolled her in the Neshoba County schools in February 2002, and she underwent hearing testing in January 2003. The chancery court also found that had Jennifer sought to take issue with Dr. Hiatt’s familiarity with Skyler, she had the opportunity to do so at the three day hearing underlying its March 7, 2003, final judgment. Concerning the treatment provided to Skyler, the chancery court stated “[w]hat was important to this court was that from July (2002) to February (2003) Dale was attempting to help their child.”

¶ 10. The chancery court further found that Dale had not misrepresented Skyler’s educational status, and he had truthfully testified that she was enrolled in the Nesh-oba County School District, but had not yet begun attending classes because Dale was in court on the day when Skyler was to begin attending school. Additionally, the chancery court found that Dale’s testimony that Sina was trained in speech therapy was supported by the record, as a letter from a former employer stated that Sina had assisted in providing speech therapy. However, Sina had testified she held some certification in both speech therapy as well as nursing, when in fact, she held no certification in speech therapy and her certification as a nursing assistant had lapsed. The chancery court found that these misrepresentations were not calculated to mislead the court, and in fact, the testimony relevant to the decision had been her training and experience, not any formal certification, and the misrepresentation was not that which could support granting a M.R.C.P. 60(b)(1) motion.

¶ 11. Lastly, concerning the M.R.C.P. 60(b)(1) motion, the chancery court found that there was no showing that Dale had in any way planned the move to Alaska to deceive the court. Dale testified that he and Sina decided to move after a physical altercation with Jennifer in February of 2003, and Dale produced his application to his Alaska employer, which was dated March 3, 2003.

¶ 12. The chancery court found that allegations going to facts that occurred after the February 2003 hearing were not proper to a M.R.C.P. 60(b)(1) motion. Nevertheless, the chancery court found that the move constituted a material change in circumstances, but such a move had not been detrimental to Skyler. The court noted that various experts had recommended different treatments for Skyler. The record showed she was enrolled in special education in Alaska, and was receiving speech therapy twice weekly from the school, and additional therapy was provided through a second speech therapist. She additionally received occupational therapy and yoga therapy especially designed for children with developmental delays.

ISSUES AND ANALYSIS

¶ 13. Jennifer contends that the chancellor erred in denying relief from the March 7, 2003, final judgment under the M.R.C.P. 60(b)(1) motion. Appellate review of a trial court’s ruling upon a Rule 60(b)(1) is limited to abuse of discretion. Stringfellow v. Stringfellow, 451 So.2d 219, 221-22 (Miss.1984). Among the findings necessary to support granting relief is that, a trial court must find both that a witness intended to misrepresent some fact in order to influence the decision by the finder of fact, and that the finder of fact did rely upon the misrepresentation in its decision. Id.

¶ 14. In her brief, Jennifer makes several arguments going to the weight of the evidence in the first final judgment, especially to the weight the chancellor afforded Dr. Hiatt’s testimony. These facts are beyond appellate review of the Rule 60(b)(1) motion.

¶ 15. On appeal, Jennifer contends the chancellor erred in her findings that Dale and Sina did not misrepresent their plans to move to Alaska, and that Skyler was enrolled in the Neshoba County public schools. Our review of the record shows that these findings were supported by the evidence. Jennifer further contends that the chancellor erred in his findings on Sina’s misrepresentations concerning her certification in speech therapy and as a nursing aide. The chancellor found that while there had been misrepresentations as to these facts, they were not intentionally aimed at altering the outcome of the proceedings, nor had the chancellor actually relied upon them. We cannot say the chancellor abused her discretion as to these misrepresentations, and there is no merit to the assertion that the chancellor erred in denying relief under M.R.C.P. 60(b)(1).

¶ 16. Jennifer also contends that the chancellor erred by denying her custody of Skyler based on facts occurring after the March 7, 2003, final judgment. While Jennifer agrees with the chancellor that Dale and Sina’s move constituted a change in circumstances, she takes issue with the finding that Skyler has not been adversely affected. A chancellor’s findings in a custody matter will not be disturbed unless manifestly wrong, clearly erroneous or based upon an erroneous legal standard. Cooper v. Ingram, 814 So.2d 166, 167(¶ 2) (Miss.Ct.App.2002). For a change in custody, the preponderance of evidence must show both a change in circumstance and an adverse effect by the change. Id. The chancellor must look to the totality of the circumstances, rather than to facts in isolation. Id. The best interest of the child is the “polestar” consideration. Johnson v. Gray, 859 So.2d 1006, 1013(¶33) (Miss.2003).

¶ 17. Jennifer’s assertions are basically that Skyler is not receiving as many services in Alaska as she would in Mississippi, and that these additional services are necessary. The chancellor found that Skyler’s need for stability was a strong concern, and because Dale had been the primary caretaker for the majority of her life, this factor weighed in Dale’s favor. Moreover, the chancellor found that Skyler had been evaluated by many experts, all of whom had different opinions as to her treatment, and there were even conflicting opinions as to her diagnosis. The evidence is undisputed that Skyler received special education classroom services three times a week and speech therapy twice weekly from the public schools in Alaska, with additional speech therapy and occupational therapy provided through health insurance, along with a yoga class to help develop her musculature control. Jennifer contends that despite this evidence, Dr. Katherine Nordell’s and Anne Sullivan’s testimony established that these services were insufficient. However, neither of these witnesses had first hand knowledge of the Alaska services. Conversely, witnesses from Alaska testified Skyler was benefitting from educational and medical services. Based upon this evidence, this Court cannot say the chancellor was manifestly in error in denying the change in custody, and there is no merit to this issue.

¶ 18. Lastly, Jennifer contends that the chancellor erred in finding the request for the writ of habeas corpus was moot. While the record appears to show that the writ did issue to procure Skyler’s attendance for the hearing upon the Rule 60(b)(1) motion, and in the alternative a change in custody, the hearing was set back by mutual accord between the parties. Moreover, because the chancellor entered a final order there is no logical reason for the writ to be enforced, and Jennifer fails to cite any authority for this proposition to the contrary. Therefore, there is no merit to the contention that the chancellor erred in finding the request for the writ of habeas corpus was moot.

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

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