author: CARLSON, Justice, for the Court.

text:
    CITY OF JACKSON, Mississippi and University of Mississippi Medical Center v. The ESTATE OF Otha STEWART, Deceased, By and Through Its Administrator, Emma WOMACK. Otha Stewart, by and Through Emma Womack, Her Daughter and Conservator of Her Person and Her Estate v. City of Jackson, Mississippi, and Doris B. Spiller. In re James A. Bobo and Mark C. Baker.
    Nos. 2003-CA-01413-SCT, 1999-IA-01527-SCT, 2005-CS-02169-SCT.
    Supreme Court of Mississippi.
    Dec. 15, 2005.

      Sharon Diane Gipson, and Pieter John Teeuwissen, Lanny R. Pace, Corrie Schu-ler, Jackson, attorneys for appellant in No. 2003-CA-01413-SCT.
    James A. Bobo, Mark C. Baker, Brandon, Bernard C. Jones, Jackson, attorneys for appellee in No. 2003-CA-01413-SCT.
    James A. Bobo, Mark C. Baker, Brandon, attorneys for appellant in No. 1999-IA-01527-SCT.
    Darla Y. Mannery-Palmer, and Patricia K. Simpson, Gulfport, attorneys for appel-lee in No. 1999-IA-01527-SCT.
   CARLSON, Justice, for the Court.

¶ 1. We are, regrettably, again confronted with disrespectful language which members of the Mississippi Bar have knowingly, consciously, and intentionally chosen to place in a motion for rehearing which was previously filed in this cause. Finding the lawyers’ conduct to be unprofessional and rising to the level of incivility, we direct that the motion for rehearing be stricken from the files.

FACTS AND PROCEEDINGS

¶ 2. On August 11, 1997, Mrs. Otha Stewart fell after exiting a van operated by the City of Jackson, as she prepared to enter a day care center operated by the University of Mississippi Medical Center. Approximately one year later,' suit was commenced by Mrs. Stewart against the City, the Hospital, and Doris Spiller, the individual van driver, for injuries received in the fall. A conservatorship was later established for Mrs. Stewart, whose daughter, Emma Womack, was substituted as the party plaintiff in her official capacity as conservator of Mrs. Stewart’s estate. The defendants subsequently filed motions for summary judgment, and in due course, the trial court denied the Hospital’s summary judgment motion, but granted summary judgment in favor of the City and Spiller. Via an interlocutory appeal, this Court reversed the trial court’s grant of summary judgment in favor of the City and Spiller. Stewart. ex. rel. Womack v. City of Jackson, 804 So.2d 1041 (Miss.2002).

¶ 3. Upon remand, the trial court conducted a bench trial pursuant to Miss.Code Ann. § 11-46-1, et seq. [commonly referred to as the Mississippi Tort Claims Act (MTCA) ]. After the bench trial, the trial court found that the City and the Hospital were liable and awarded the plaintiff the total amount of $1,000,000 as damages against the City and the Hospital under tort and breach of contract theories.

¶ 4. From this final judgment, both the City and the Hospital appealed to us. On May 12, 2005, we handed down our opinion which affirmed the trial court’s judgment as to a finding of liability against the City, but we remanded the case to the trial court for a new trial as to damages only against the City, with instructions to limit any award against the City to an amount not to exceed $250,000, pursuant to the MTCA. As to the trial court judgment against the Hospital, we reversed and rendered. City of Jackson v. Estate of Stewart ex rel. Womack, (Miss. May 12, 2005). Thereafter, the Estate, through counsel, filed a motion for rehearing. On August 4, 2005, we denied the motion for rehearing, but modified the original opinion. City of Jackson v. Estate of Stewart ex rel. Womack, 908 So.2d 703 (Miss.2005).

¶ 5. However, the events surrounding the filing of the motion for rehearing are the focus of today’s case. After our initial opinion in this case was handed down on May 12, 2005, the Estate, through attorneys James A. Bobo and Mark C. Baker, Sr., signed and caused to be filed a motion for rehearing on May 26, 2005. We recite the language used in this motion for rehearing which precipitated certain events subsequent to the filing of the motion for rehearing (M/R):

(1) On page 1 of the M/R — “The vast majority of opinions issued by this August Body exemplify the virtues of scholarship, intellectual honesty, neutrality, balance, justice and fair play. Win or lose the facts and law of the case are fairly stated. Unlike those opinions, the opinion in this case does not meet these standards. The opinion does a disservice to the Court and the parties and almost certainly will cause confusion and uncertainty among the bench and bar.”
(2) On page 1 of the M/R — “The opinion issued in this case does not accurately set forth the facts of this case.” [An accompanying footnote states “How is it that an opinion discussing this case could not mention the ‘smoking gun’ memorandum where Jackson admits that it was endangering the elderly and infirm through its failure to meet the express conditions of the CMPDD contract?”] “The injustice wrought by the opinion is perhaps best exemplified by the opinion’s adoption of the testimony of Dr. Thiel.”
(3) On page 2 of the M/R — “It bears repeating: the lone medical opinion stating there was no stroke event is used by the author of the opinion to justify exclusion of damages caused by the stroke. This reasoning defies logic.” (Emphasis in original).
(4) On page 2 of the M/R — “In an un-scholarly fashion the opinion appears to overturn long established principles of law concerning foreseeability and appellate review. It can be fairly stated that the opinion does violence to the ‘letter [and] the spirit of the Law.” (Citation omitted).
(5) On pages 6-7 of the M/R — “The opinion, without a single citation to authority, legislates a limit on contract damage claims against governmental entities in express contract cases (¶ 41 of Opinion). The Mississippi Legislature has not imposed such a limit, yet to achieve the outcome desired the opinion moves the Court from jurists to legislators.”
(6) On page 7 of the M/R — “The straw argument of implied contract claims is propped up and knocked down for reasons having nothing to do with the law or the facts of this case. Abandoning balance and neutrality and the long established principles which apply when reviewing a Trial Court’s decision concerning breach of an express contract, the opinion advocates on behalf of the defendants.”
(7) On page 8 of the M/R — “¶ 9 of the Opinion adopts a version of events favorable to the Defendants.”
(8) On page 10 of the M/R — “The opinion also ignores the concept that the UMMC contract provisions concerning transportation, coordination and continuity of service place a duty in tort upon UMMC to continue to protect Mrs. Stewart as they had in the past. Footnote 3 of the opinion sets forth a weak side-stepping of this issue.”
(9) On page 10 of the M/R — “¶ 39^40 [of the opinion] address another non-issue. Mrs. Stewart put on proof of economic damages in excess of $1,000,000.00. Her incurred medicals to date of trial were $416,000.00, with future medicals of $1.3 Million. The judgment is for $1 Million. It is silly [for this Court] to contend that there was any double recovery.”
(10) On page 11 of the M/R — “The opinion incorrectly applies the cases cited in ¶¶ 43^46 [here is inserted footnote no. 16] and through selective citation fails to mention or reference the controlling principles of law.” [In the referenced footnote no. 16, there appears this language: “The citation to Smith v. United States, 284 F.Supp. 259 (S.D.Miss.1967) aff'd per curiam, 394 F.2d 482 (5th Cir.1968) should be a dead give away of the feeble cobbling and machinations needed to prop up the conclusion that duty and proximate cause were not established.”]
(11) On page 12 of the M/R — “The more important factor is that it is only by selecting discreet passages that the opinion is able to prop up its foreseeability conclusion. A balanced and fair reading of the record reflects that Dr. Ramsey testified that the fall caused the stroke and resulting deterioration of Mrs. Stewart’s death.”
(12) On page 13 of the M/R, the Conclusion states: “This Motion for Rehearing should be granted and the decision of the Trial Court upheld in all respects. However, if Mrs. Stewart must lose and her ill treatment and suffering be without recompense then there is little she can do to change it. But she should not lose like this. Not by an opinion which ignores and twist (sic) the facts. Not by an opinion that contorts the law to achieve a certain outcome more in tune with a political philosophy. Instead, if it must be, then do it with honest scholarship and legal craftsmanship which addresses the real issues of the case. Mrs. Stewart and the people of Mississippi deserve at least that.”

¶ 6. On August 4, 2005, this Court entered an en banc order reciting these examples of disrespectful language contained in the motion for rehearing, and (1) directing Bobo and Baker to file written responses to our show cause order and (2) directing Bobo and Baker to appear before this Court, sitting en banc, on October 13, 2005, to show cause as to why they should not be sanctioned. On August 23, 2005, and August 24, 2005, Baker and Bobo, respectively, filed written responses to our show cause order. In his response, Baker, inter alia, “unequivocally apologizefd]” to the Court for his part in causing the language to appear in the motion for rehearing. On the other hand, Bobo, while placing language in his response indicating respect for this Court as an institution, and the individual members currently on the Court, stated, inter alia, that he “gauged the skin of the Court to be thicker and its temperament broad enough to allow unfettered the free flow of ideas.” Bobo likewise found Rule 40(c) of the Mississippi Rules of Appellate Procedure to be “standardless” and at odds with the First and Fourteenth Amendments of the United States Constitution as well as with Art. 3, §§ 11, 14 & 24, of our state constitution. In essence, Bobo deemed it his constitutional right to place the language in the motion for rehearing. Bobo even expressed being at a total loss as to what this Court found to be disrespectful in his motion for rehearing. Bobo then addressed, point-by-point, the twelve instances of disrespectful language we found to be contained in the motion for rehearing. Finally, in his response, Bobo stated:

Words can not express how badly I wish to be reconciled with the Court. It pains me deeply to be at odds with the Court or any of its members. I have done little else since receiving the Show Cause Order than consider and weigh the matter and examine myself as a person, an attorney and Officer of the Court. I assure you that in the future, I will strive to make arguments that persuade and not offend. However, in this case I can not retreat and in candor I must say that I intend to stand and write against any wrong and injustice it might be my honor to attempt to set right.

¶ 7. On October 13, 2005, Bobo and Baker, as directed, appeared before the Court for the show cause hearing. Baker appeared along with counsel, and Bobo appeared, pro se. Baker, through counsel, expressed remorse and apologized to the Court. It was obvious from observing Baker’s demeanor at the show cause hearing that his remorse was genuine. Bobo, to his credit, took the blame for the necessity of a show cause hearing and stated that but for his (Bobo’s) actions, Baker would not be before the Court. In other words, Bobo took full responsibility for the language which appeared in the motion for rehearing. While there is no doubt that what Bobo said, and how he said it, (his demeanor) exhibited great respect for the Court as an institution (as well as the Court’s current members), Bobo fervently stood by his position that he had a constitutional right to write what he did in the motion for rehearing. During his argument before the Court, Bobo, inter alia, also referred us to instances where this Court, and other courts, via its opinions (and especially individual dissenting opinions by justices), have been critical of fellow justices’ interpretation of law and application of facts. Likewise, Bobo asserted that in viewing his actions, we should keep in mind that motions for rehearing filed with this Court are not widely distributed or read by the general public.

¶ 8. At the conclusion of the show cause hearing, we took this matter under advisement for further consideration and entry of an opinion.

DISCUSSION

¶ 9. In discussing the culpability of litigants in cases which we decide, it is hardly uncommon that multiple litigants will be found to have varying degrees of culpability. This is certainly true in today’s case. We now know that Bobo was mainly involved in drafting the motion for rehearing and that Baker may have done little more than “sign off’ on the motion for rehearing. However, as lawyers and judges know, such action on the part of a lawyer does not necessarily exonerate the lawyer from being responsible for the contents of pleadings. See Miss. R. Civ. P. 11.

¶ 10. Based on certain language contained in Bobo’s response to our show cause order, we start our discussion with the clear statement that judges, by the very nature of the adversarial system of justice in which they are involved on a daily basis, are, for the most part, “thick-skinned.” There are no doubt exceptions. Certainly, at the trial level, lawyers (and judges), in the heat of battle, will say or do things, which upon reflection, they know to have been at the very least, imprudent. Thus, what might otherwise be deemed to be unacceptable, improper, or even sanc-tionable behavior on the part of a lawyer will be simply ignored, or at the very most, quickly disposed of by the trial judge with no more than an admonishment. While it is wise for appellate judges to likewise be “thick-skinned” and quite often accept certain behavior as no more than appropriate advocacy, appellate advocacy is still somewhat different. The language which lawyers place in a brief, or a motion for rehearing, is placed there only after at least a minimum amount of thought and reflection. Assuming, arguendo, that a lawyer then re-reads and re-thinks what the lawyer has placed in the brief or motion, there is time for reflection on whether the language conveys the message which the writer wishes to convey, or whether, upon reflection, there is perhaps a better or more effective way of conveying the intended message. M.R.A.P. 40(c) states:

(c) Disrespectful Language Stricken.
Any motion for rehearing containing language showing disrespect or contempt for either appellate court will be stricken, and the appropriate court will take such further action as it may deem proper.

¶ 11. Notwithstanding the provisions of this Rule, the motion for rehearing signed by Bobo and Baker contained numerous instances of disrespectful language which we have already conveyed, supra. Our concern over this conduct has nothing to do with this Court or its justices being “thin-skinned” or unwilling to accept criticism. Indeed, the very purpose of a motion for rehearing is for the aggrieved party to call to the attention of this Court the point(s) of law and/or fact which this Court may have overlooked or misapprehended in its original opinion. If our system of justice at the appellate level were perfect, M.R.A.P. 40 would be unnecessary. Likewise, if our system of justice were perfect at the trial level, there would be no need for the existence of rules governing appeals. By our enforcing M.R.A.P. 40(c), it has nothing to do with the individual pride of the members of this Court, but instead, it has everything to do with preserving the integrity of this Court as an institution— those members of this Court who preceded us, did, and those who follow us, should.

¶ 12. Indeed, this Court in years past, long before any of the current members arrived at the Court, unhesitatingly responded to lawyer conduct similar to that exhibited by the lawyers in today’s case. More than fifty years ago, Justice Gillespie, writing for a unanimous court, stated:

While we have considered the suggestion of error on the merits, we order the brief thereon stricken from the files for the reason that it contains language showing disrespect for this Court. Language such as that used by the attorney in his suggestion of error and brief serve no purpose; it is of no aid to the Court and of no service to the clients in whose behalf it is used. This opinion is written for the purpose of admonishing counsel, and any others similarly disposed, to refrain from the use of language showing contempt or disrespect for the Courts. Attorneys perform an important and indispensable service in administering the laws. The duties of the court and the bar complement each other; neither can properly function without the other; and mutual respect is demanded by law and tradition. It is inherently within the power of the Court to enforce reasonable rules against disrespectful and contemptuous language directed to the Court, and we would be remiss in our obligation to the judicial department as an institution of government if we should ignore a violation of such rules.
Any suggestion of error containing language showing disrespect or contempt for this Court will be stricken from the files, and the Court will take such further action relative thereto as it may deem proper.’ Rule 14, Revised Rules of the Supreme Court of Mississippi, 1953.
What we have said is not to be construed to mean that attorneys may not criticize a decision of the Court. Anyone has a perfect right to criticize, but it must be done within the bounds of propriety.

Guynn v. Shutters, 223 Miss. 232, 262, 78 So.2d 793, 793-94 (1955).

¶ 13. More than seventy-six years ago, Justice Griffith, writing for a unanimous court, stated:

Almost every day suggestions of error are coming in here in which it is quite freely asserted, in effect, that we have not read the record, or that we have not read it as to vital features therein, or that in effect we are denying to parties their rights under the law by inattention to our tasks, or, as was ventured in the instant suggestion of error, that if we persisted in our error “then the right to contract in this state will be denied by the solemn judgment of this Court.” We gladly, sometimes gratefully, receive suggestions of error-some of them are indispensably helpful. Nor do we expect at all that counsel shall come apologetically in the discharge of this important function, but boldly and manfully, we wish to see him stand up and labor with us when done in a respectful manner and when counsel has so thoroughly studied the complete record of his case, and the authorities applicable thereto, that he can be a help to the law, not a hindrance to us by wasting our time. In presenting a suggestion of error the partisanship of the advocate should to a degree be laid aside, and counsel should rise to the heights of a real master and minister in the law, for the time has then come when we are to consider finally what is to go into the books, rather than chiefly the mere result of a case.

Provident Life & Acc. Ins. Co. v. Jemison, 153 Miss. 60, 120 So. 836, 836-37 (1929).

¶ 14. So, more than seven decades after Justice Griffith penned these words for the Court, unfortunately, the current Court continues to deal with similar lawyer conduct (or misconduct). We recently had to address the conduct of lawyers at the trial level during the discovery phase of a civil case. While admittedly not factually similar to the facts in today’s case, there is certain language in that case which still quite appropriately guides us in today’s case:

We acknowledge that in recent years, the Mississippi Bar has devoted entire issues of its official publication, The Mississippi Lawyer, to the timely issues of ethics, civility and professionalism amongst members of the Bar. This Court has also recently had occasion to address these issues.
Notably, the Mississippi Bar as well as Mississippi College School of Law and the University of Mississippi School of Law have taken additional measures in order to address Ethics and Professional Conduct among the Bar. Specifically, the Mississippi Bar has devoted several issues to Ethics and Professionalism in an attempt to “reign-in” behavior similar to Kelly’s. More recently, both the Mississippi College School of Law and the University of Mississippi School of Law began conducting an annual Law School Professionalism Program that is presented to entering law students. Prior to the initiation of this program, courses on Ethics and Professionalism were not available until much later in the curriculum. While sponsored by the Mississippi Bar, many noted attorneys and judges participate in this program to inform entering law students of the high standards they will be held to and also to deter them from engaging in unprofessional, unethical and ill-advised behavior like that exhibited by Kelly.
In re Kelly, 912 So.2d 823, 827 (Miss.2005).

Mississippi Farm Bureau Mut. Ins. Co. v. Parker, 921 So.2d 260, 264 ¶ 13 (Miss.2005).

¶ 15. In another recent case, we addressed the inappropriateness of language placed in a post-decision motion filed with this Court. After the opinion was handed down by this Court, the aggrieved party, through counsel, filed a motion for recusal of certain justices, and upon a denial of this motion, the party’s counsel filed a motion for reconsideration. In addressing the language found in the motion for reconsideration, we stated:

It is undisputed that this Court holds attorneys to the highest of standards. Furthermore, this is evidenced by the fact that the Board of Bar Commissioners of the Mississippi Bar has adopted the Lawyer’s Creed which contains standards for lawyers’ conduct in association with fellow professionals. A complete recitation of the applicable rules governing professional conduct would be redundant. However, we reiterate the importance of the first as well as foremost duty of attorneys which is to represent the interests of the client. Disturbingly, Kelly blatantly disregarded the standards of conduct enumerated in the Lawyer’s Creed as well as the Mississippi Rules of Professional Conduct.
& :■£ % jj: if? #
Our response to Kelly’s flagrantly disrespectful conduct occurring before this Court, shall serve as a warning to the members of the Mississippi Bar, and as such, shall conclusively clarify any misconceptions regarding the possibility of tolerance to improper conduct before this Court.
❖ * * * ❖
For the aforementioned reasons, this Court concludes that Kelly’s behavior is unacceptable and sanctionable. This is not an issue of free speech as attorneys are required to abide by higher ethical standards of conduct and give up what normally would be considered free speech to the public at large while appearing in Court or filing documents with the Court. Zealous advocacy does not include blatant disregard or outright disrespect to the judiciary and, accordingly, will not be tolerated. Our judicial system can not properly function when lawyers demonstrate a pervasive lack of respect for judges, justices and the courts. Lawyers are thus required to show respect for the position of judge and for the institution.

Welsh v. Mounger (In Re Kelly), 912 So.2d 823, 826-28 (Miss.2005).

¶ 16. One of the cornerstones of the legal profession has always been that our profession is one of service to our citizenry, and that the citizens have a right to expect of their lawyers exemplary conduct which might be deemed burdensome when viewed by the lay (non-lawyer) citizens of society. Attorneys should accept, without reservation, the requirement that they be held to higher standards of conduct and “give up what normally would be considered free speech to the public at large while appearing in Court or filing documents with the Court.” Id. at 828. Today, we again embrace this explicit tenet which should be unhesitatingly followed by lawyers on a daily basis. As we stated in Welsh, today’s case is not about constitutional free speech, but it is instead about what the judiciary of this state has a right to minimally expect by way of the conduct of the lawyers who appear before our courts as officers of the court. Id. See also Miss. Bar v. Lumumba, 912 So.2d 871, 888-86 ¶¶ 26-28, 33 (Miss.2005). Zealous and effective advocacy is desirable, but it can certainly be accomplished without rude, offensive and demeaning language directed toward the court, counsel and/or party.

¶ 17. As we stated in Parker, lawyers are bound by the “well-familiar but perhaps all-too-often forgotten Lawyer’s Creed,” which states, in pertinent part:

1) I revere the Law, the System, and the Profession, and I pledge that in my private and professional life, and in my dealings with fellow members of the Bar, I will uphold the dignity and respect of each in my behavior toward others.
2) In all dealings with fellow members of the Bar, I will be guided by a fundamental sense of integrity and fair play; Effective advocacy does not mean that any tactic is acceptable.
* * * * * *
7) I recognize that my conduct is not governed solely by the Code of Professional Responsibility, but also by standards of fundamental decency.
* Hi * * # *
10) I recognize that effective advocacy does not require antagonistic or obnoxious behavior, and as a member of the Bar, I pledge to adhere to the higher standard of conduct which we, our clients, and the public may rightfully respect.

921 So.2d at 263-64, ¶ 12. We find that the lawyers in today’s case unquestionably failed to adhere to these important tenets which are a vital part of the Lawyer’s Creed.

¶ 18. In sum, lawyers who assert that they are but appropriately representing their clients in a zealous manner by filing with this Court a motion containing language similar to that contained in the motion for rehearing previously filed in this case, should be prepared to accept the consequences of their actions. It is a disservice to their clients for lawyers to file any motion with this Court containing such language. The conduct of the lawyers in today’s case is unprofessional and amounts to incivility. Thus, consistent with the provisions of M.R.A.P. 40(c), we hereby direct that the motion for rehearing be stricken from the files.

CONCLUSION

¶ 19. We will always zealously protect this Court as an institution, and when this Court is attacked in a written document filed with this Court by accusing this Court of “abandoning balance and neutrality” and legislating from the bench by issuing an opinion which is, inter alia, un-scholarly, illogical, silly, and politically motivated, we will swiftly respond by taking appropriate action against the responsible party/lawyer(s). The statements contained in the motion for rehearing were premeditated and insulting to this Court, as an institution, and they cannot and will not go unnoticed by this Court. The lawyers in today’s case are very capable and experienced lawyers, whose allegiance to their client is beyond question. On the other hand, in looking at their conduct exhibited in this case, they certainly knew better. Their conduct cannot be condoned or excused because of petulance or under the guise of zealous advocacy. Lawyers who might in the future be of the opinion that they can exhibit with impunity conduct similar to that exhibited by the lawyers in today’s case, all under the guise of zealous advocacy, are woefully mistaken.

¶ 20. For the reasons stated, the motion for rehearing shall be stricken from the files, pursuant to the provisions of M.R.A.P. 40(c).

¶ 21. MOTION FOR REHEARING STRICKEN FROM THE FILES.

WALLER AND COBB, P.JJ., EASLEY AND RANDOLPH, JJ., CONCUR. SMITH, C.J., DIAZ, GRAVES AND DICKINSON, JJ., NOT PARTICIPATING.

      . Shortly after the trial of this case, and prior to the trial court’s entry of its opinion and final judgment, Mrs. Stewart died, and thus her estate was substituted as plaintiff.

      . These statements lead us to conclude that if Bobo felt moved in future cases to again "set right” a perceived wrong or injustice, he would not "retreat” and would again conduct himself in a fashion similar to that in today's case.

      . We wish to make it abundantly clear that we address the conduct of the lawyers in today's case only from the standpoint of civility and professionalism. We do not address today's case from the standpoint of ethical behavior by way of potential violations of the Mississippi Rules of Professional Conduct.

      . What is appalling to this Court is that when Bobo and Baker filed the motion for rehearing containing the disrespectful language on May 26, 2005, they had the benefit of our warning in Kelly which was issued via the opinion handed down on March 17, 2005, more than two months earlier.


source: Caselaw Access Project

license: Public Domain

text:
    The MISSISSIPPI BAR, Appellant v. Matthew L. PEPPER, Appellee.
    No. 2005-BD-00806-SCT.
    Supreme Court of Mississippi.
    Jan. 12, 2006.
   ORDER

¶ 1. This matter is before the en banc Court on the Complaint of the Mississippi Bar seeking disciplinary action against Matthew L. Pepper based on the Supreme Court of Louisiana’s imposition of a six-month suspension from the practice of law with all but one month deferred. In re Matthew L. Pepper, 876 So.2d 772 (La.2004). The Mississippi Bar filed its formal complaint against Pepper pursuant to Rule 13 of the Mississippi Rules of Discipline seeking to suspend Pepper from the practice of law in Mississippi. Additionally, the Mississippi Bar requests this Court require Pepper to notify all his Mississippi clients, as well as attorneys and adverse parties in any Mississippi proceeding in which he is involved and all affected courts and agencies, of his suspension and that they should seek alternate legal counsel within fourteen days of suspension.

¶ 2. On July 2, 2004, the Supreme Court of Louisiana suspended Pepper from the practice of law in the State of Louisiana for six months with all months deferred but one. Id., 876 So.2d 772 (La.2004). Attached to the Bar’s complaint against Pepper is a copy of the Supreme Court of Louisiana’s opinion and order of suspension.

¶ 3. The Louisiana Supreme Court took action against Pepper after he failed to adequately communicate with one client, failed to refund an unearned legal fee to another, and failed to comply with his professional obligation to promptly notify the Louisiana State Bar Association of changes in his primary registration address. Id.

¶ 4. Truc Le hired Pepper to defend him in a collection suit initiated by a New Orleans hospital. Pepper filed an answer and third-party demand, but the hospital was awarded a judgment against Le for an unpaid medical bill. Pepper eventually worked out a payment plan to satisfy the hospital’s judgment. While Pepper’s advocacy was both creative and effective, he failed to communicate with Le and to document his efforts so that his client understood the nature and scope of the representation. Pepper also failed to communicate with Le regarding the status of the third-party demand.

¶ 5. Anita Allen hired Pepper to handle a legal matter involving her son and paid him $600. One month later, Allen ended Pepper’s representation of the matter by letter and requested that he return the $600 she originally paid. Pepper agreed to return the money, but never placed the disputed funds in his trust account or refunded the money.

¶ 6. The Disciplinary Board of the Supreme Court of Louisiana found that Pepper violated Rules of Professional Conduct 1.4 and 8.4(a) by failing to communicate to a client the goals and limitations he could accomplish in the representation of that client. Id., 876 So.2d 772 at 779. The Disciplinary Board also found the Rules of Professional Conduct 1.3, 1.4, and 1.5(f)(6) were violated by Pepper’s “failure to use reasonable diligence” in the investigation of a client’s case, failure to adequately communicate his concerns about that case, and failure to place undisputed funds into his trust account or refund the client the unearned fees. Id. After considering all aggravating and mitigating factors concerning Pepper’s conduct, including prior admonitions by the Disciplinary Board, the Louisiana Supreme Court suspended Pepper from the practice of law in Louisiana for six months with all but one month of the suspension deferred. Id. at 780-81. Pepper was placed on probation for one year and ordered to pay restitution to one client in the amount of $600 plus legal interest. Id.

¶ 7. Under Miss. Rule of Discipline 13, the sanction of another jurisdiction is conclusive evidence of the guilt of an offense or unprofessional conduct. It is not necessary to prove the grounds for the discipline again in this state.

The sole issue to be determined in the disciplinary proceeding in this state shall be the extent of the final discipline to be imposed on the attorney, which may be less or more severe than the discipline imposed by the other jurisdiction.

Miss. Rule of Discipline 13. This Court has consistently shown deference to the sanctions imposed by foreign jurisdictions and has imposed like or identical sanctions for those same offenses. See Miss. Bar v. Drungole, 913 So.2d 968, at 968 (Miss.2005); Miss. Bar v. Attorney BBB, 890 So.2d 882 (Miss.2004); Miss. Bar v. Barry, 890 So.2d 870 (Miss.2004); Miss. Bar v. Daniels, 890 So.2d 872 (Miss.2004); Miss. Bar v. Caldwell, 890 So.2d 855 (Miss.2004); Miss. Bar v. Thompson, 797 So.2d 197 (Miss.2000); Miss. State Bar v. Young, 509 So.2d 210 (Miss.1987).

¶ 8. Pepper denies the allegations set forth in the Mississippi Bar’s complaint against him and offers as an affirmative defense the fact that the Louisiana Supreme Court has reinstated him. This is, of course, not persuasive as it does not tend to show Pepper did not commit acts deserving sanctions, but is simply evidence that he completed his probation and suspension without incident. Pepper has offered nothing to this Court to show his innocence of the acts for which the Louisiana Supreme Court sanctioned him but an unfiled concursus petition and a sample order he hopes to have signed. These sample documents fail to show the Louisiana Supreme Court erred in its decision and sanctions concerning Pepper.

¶ 9. After carefully considering the facts before us, we find the sanction of a six-month suspension with all but one month deferred and probation for one year to be appropriate.

¶ 10. IT IS THEREFORE ORDERED that, effective upon entry of this order, Matthew L. Pepper is hereby suspended from the practice of law in the State of Mississippi for six months with all but one month deferred and placed on probation for one year.

¶11. IT IS FURTHER ORDERED that, immediately following entry of this order, Pepper shall take action to protect the interests of his clients as provided under Rule 11 of the Miss. Rules of Discipline, including but not limited to (1) giving all clients notice of his suspension and consequent inability to act as an attorney for the time specified as of the effective date of this order; (2) notifying each client involved in pending litigation or administrative proceedings and the attorney or attorneys for each adverse party in such proceedings, of his suspension and consequent inability to act as an attorney for the time specified as of the effective date of this order; (3) advising each client promptly to substitute another attorney or attorneys in his place or to seek legal advice elsewhere; and (4) notifying all affected courts and agencies of his suspension and consequent inability to act as an attorney for the time specified as of the effective date of this order.

¶ 12. SO ORDERED.

/s/ William L. Waller, Jr. William L. Waller, Jr., Presiding Justice

DIAZ, J., Not Participating.


author: /s/ Jess H. Dickinson Justice

text:
    ILLINOIS CENTRAL RAILROAD COMPANY, Petitioner v. Timothy EASTERWOOD, et al., Respondents.
    No. 2005-M-02339-SCT.
    Supreme Court of Mississippi.
    Feb. 3, 2006.
   ORDER

This matter is before the Court en banc on the Petition of Illinois Central Railroad Company to Appeal from an Interlocutory Order of the Circuit Court of Holmes County and Request for Stay. Also before the Court is the response in opposition to the petition filed by counsel for Respondents. In the original complaints 54 plaintiffs filed suit against the Railroad, claiming they were damaged by exposure to various toxic substances. The Railroad filed a motion to dismiss or, alternatively, to sever and transfer the plaintiffs. On May 13, 2005, the trial court granted the motion and ordered each plaintiff to serve upon the Railroad a

new, fact-specific Amended Complaint, subject to the requirements of M.R.C.P. Rules 8, 9, 10 and 11, which pursuant to [Harold’s Auto Parts, Inc. v. Mangialardi, 889 So.2d 493 (Miss.2004) and Illinois Central R.R. Co. v. Gregory, 912 So.2d 829 (Miss.2005) ], sets forth facts as to the home address, social security number, job classification, and alleged disease of each Plaintiff, and describes which Plaintiff was exposed to which specific product and which specific substances manufactured by which specific manufacturer (if known) and in which workplace (by name and address) and for what specific time periods and frequencies.

The trial court further stated that, once the amended complaints were filed, the court could determine the appropriate venue for transfer.

After the individual plaintiffs filed amended complaints as ordered, the Railroad sought dismissal of certain plaintiffs for their failure to allege the specific product causing them damage. Specifically, each of these plaintiffs stated in their respective amended complaints: “Plaintiff cannot recall specific asbestos (or silica) containing products and material that he worked around while an employee of Defendant at this time.” The Railroad claimed that, based upon this statement, the plaintiffs should be dismissed. The trial court denied the Railroad’s motion to dismiss the plaintiffs and the Railroad filed this interlocutory appeal, claiming the amended complaints are not in compliance with our holding in Mangialardi. We find the trial judge was correct in her ruling, and that Mangialardi is clearly distinguishable from this case.

In Mangialardi, we stated that “264 plaintiffs were exposed over a 75-year period of time to asbestos products associated with 137 manufacturers in approximately 600 workplaces.” Id. at 494. Furthermore, the Mangialardi complaint did not disclose “which plaintiff was exposed to which product manufactured by which defendant in which workplace at any particular time.” Id. Therefore, we held the complaint was insufficient to meet minimum notice pleading requirements and we remanded, ordering the plaintiffs to provide the missing information including the identification of the particular products each plaintiff claimed had caused them harm. Absent this information, the 137 manufacturers were unable to discern from the complaint the identity of any plaintiff claiming damage from their respective products. Stated another way, the 137 manufacturers were not on notice of which plaintiffs were pursuing claims against them, or why.

The case before us today is different. There is only one defendant, the Railroad. The amended complaints provide the Railroad with sufficient notice of each plaintiffs claims, including the place, period of time, and instrumentality (asbestos and silica) of alleged injury. The amended complaints further allege sufficient information for a determination of appropriate venue. Accordingly, the Court finds that the petition for interlocutory appeal and request for stay are not well taken and should be denied. The Court further finds that this Order should be published as an announcement to all members of the Bar.

IT IS THEREFORE ORDERED that the Petition of Illinois Central Railroad Company to Appeal from an Interlocutory Order of the Circuit Court of Holmes County and Request for Stay is hereby denied.

IT IS FURTHER ORDERED that this Order be published, and that the Clerk of this Court shall spread this Order upon the minutes of the Court and shall forthwith forward a true certified copy hereof to West Publishing Company for publication as soon as practical in the advanced sheets of the Southern Reporter, Second Series (Mississippi Edition).

SO ORDERED.

/s/ Jess H. Dickinson Justice

DIAZ, GRAVES, AND RANDOLPH, JJ., not participating.


text:
    In re EMERGENCY PREPAREDNESS PLANNING.
    No. 2006-AD-00576-SCT.
    Supreme Court of Mississippi.
    May 30, 2006.
   ORDER

This matter came before the undersigned Justice pursuant to the Guidelines for Emergency Preparedness Planning adopted by this Court by order entered April 20, 2006. In accordance with said guidelines, the undersigned Justice, serving as the Chief Emergency Coordinating Officer, designates each of the following Justices to serve as the District Emergency Coordinating Officers: District 1, the Central District, shall be Justice James E. Graves, Jr.; District 2, the Southern District, shall be Justice Michael K. Randolph; and District 3, the Northern District, shall be Justice George C. Carlson, Jr. Further, in accordance with said guidelines, Presiding Justice William L. Waller, Jr., shall serve as the alternate Chief Emergency Coordinating Officer when the undersigned is not available.

IT IS THEREFORE ORDERED that the designations, as stated herein above, are hereby in effect until further order.

SO ORDERED.

/s/ James W. Smith, Jr. JAMES W. SMITH, Jr., CHIEF JUSTICE


author: EASLEY, Justice, for the Court.

text:
    Jonathan DUNCAN v. STATE of Mississippi.
    No. 2003-KA-02721-SCT.
    Supreme Court of Mississippi.
    Aug. 10, 2006.
    Rehearing Denied Oct. 26, 2006.

      Leslie D. Roussell, Laurel, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before WALLER, P.J., EASLEY and GRAVES, JJ.
   EASLEY, Justice, for the Court.

PROCEDURAL HISTORY

¶ 1. Jonathan Duncan was indicted by a Jasper County grand jury in February 2002, for capital murder for allegedly killing Marty Brady, with or without deliberate design, in violation of Miss.Code Ann. § 97 — 3—19(2)(e), during the commission of the armed robbery of Linda Rayner by placing her in fear of immediate injury to her person by exhibition of a deadly weapon, a gun, and taking approximately $840 in U.S. currency from her which belonged to Brady and Brady’s Country Store. Duncan was tried two times on the capital murder indictment. Both trials resulted in a hung jury, and the trial court declared mistrials in both trials.

¶ 2. Duncan was re-indicted in February 2003, on a two-count indictment, Count I: murder for allegedly killing Brady, with deliberate design to effect death, in violation of Miss.Code Ann. § 97-3-19 and Count II: armed robbery for allegedly taking property of another, Rayner, by placing her in fear of immediate injury to her person by exhibition of a deadly weapon, a gun, and taking approximately $840 in U.S. currency from her which belonged to Brady and Brady’s Country Store, in violation of Miss.Code Ann. § 97-3-79. At the State’s request, the trial court dismissed the original indictment in cause no. 22-36 based on the re-indictment in cause no. 23-22. The entry of nolle prosequi as to the original indictment was made and granted by the trial court prior to the third trial.

¶ 3. Duncan received a jury trial on the two-count indictment. Duncan did not testify. The jury returned a verdict of guilty of armed robbery on Count II of the indictment, but the jury was unable to reach a verdict on Count I for Brady’s murder. The jury sentenced Duncan to life imprisonment for the armed robbery conviction.

¶ 4. Following the conviction and sentence, the trial court denied Duncan’s motion for judgment notwithstanding the verdict or, in the alternative, a new trial. Duncan now appeals to this Court in forma pauperis.

FACTS

¶ 5. On or about June 8, 2001, two black males wearing ski masks, gloves, and brandishing pistols entered Brady’s Country Store, a convenience store located in Jasper County, Mississippi. Rayner testified that when the two men came in the store she was in the process of “getting ready to close up” the store and “tallying up the money.” When the two men entered the store, Rayner was standing behind the counter counting money and talking on the telephone and to her brother, Brady. Rayner testified that both men had guns which they pointed at Brady. The men instructed Rayner and Brady to give them the money. Rayner heard a shot, and she saw Brady fall to the floor. Rayner testified that she did not see which man shot Brady. Rayner stated that when Brady was shot, she saw him fall to the floor, and she then went “hysterical.” Rayner then fell to the floor and started screaming. According to Rayner, when Brady fell to the floor, the shorter, stockier of the two men came behind the counter and took the money from her. She testified that he said, “give me the money bitch.” Rayner described the other man as taller and thinner with a “lower left eye.” Rayner testified that she handed the money over to the men because she was afraid for her own life. The two men left the store with approximately $840 in cash, and she heard a car “crank up and leave.”

¶ 6. Co-defendant, Jamie Jones, testified on behalf of the State. Jones had been indicted for capital murder, but he pled to armed robbery in exchange for dismissal of the capital murder charge. Jones stated that he pled without a recommendation from the State and understood that he could be sentenced to life for the armed robbery. Jones testified that prior to the robbery on June 8, 2001, he had stolen a Nissan Altima sometime around Memorial Day 2001. The Altima was stolen from Cheryl Daly on the Mississippi Gulf Coast. According to Jones, Daly’s boyfriend requested that he steal the Altima and dispose of it. Jones testified that he stole the car and drove it to his hometown of Laurel, Mississippi, to hide it. He parked the car in the parking lot of the Masonite Corporation.

¶ 7. Jones testified that on June 8, 2001, while driving around in his Nissan Maxi-ma, he saw Duncan at a car wash. He had known Duncan for a couple of weeks. Jones had the idea to rob the convenience store to get some money. Subsequently, Jones then testified to the contrary that it was Duncan’s idea to rob the convenience store. Jones and Duncan drove to Duncan’s home to obtain ski masks and gloves.

¶ 8. They then drove to the home of Anthony “Hitman” Horne to obtain a .45 caliber handgun. Jones testified that he already had a BB pistol which looked like a 9mm handgun. The two then drove to the parking lot at the Masonite Corporation to retrieve the stolen Altima. Duncan drove the Maxima to Jones’s sister-in-law’s home and parked it there. Jones followed in the stolen Altima. The two left together in the stolen Altima to rob the convenience store.

¶ 9. Jones testified that they both entered the store. Jones testified that while he was trying to get the woman off the telephone, he heard two shots fired and saw the man fall to the floor. According to Jones, Duncan told him to get the money. Jones went behind the counter and got the money. They both then exited the store and left in the stolen Altima. After they divided the money taken in the robbery, Jones dropped off Duncan. Jones then poured gasoline in the Altima and set it on fire. He then walked home.

¶ 10. Horne testified that Duncan told him he shot the man in the convenience store. Horne testified that he had known Duncan for about a year, but he later testified that it was about two weeks. Horne finally stated that he could not recall how long he had known Duncan. Horne testified that he supplied the .45 caliber handgun.

¶ 11. Chief Deputy Doug Hill, the lead investigator, testified that the burned Alti-ma was recovered. Inside the Altima, they recovered ski masks and gloves. Many of the hair samples collected did not produce sufficient characteristics in order to be tested. The fingerprints and hair samples that were collected and tested did not match any of the samples obtained from Duncan nor Jones. Samples of fingerprints and hair were collected from Horne, but they were not tested against those recovered. Deputy Hill testified that Jones was 5'6" and weighed over 200 pounds; Duncan was 5'8" and weighed 140 pounds. Deputy Hill testified that Horne was 6'1".

DISCUSSION

I. Re-Indictment

¶ 12. Duncan received two mistrials based on hung jury’s as to the charge of capital murder that was based on Brady’s murder during the armed robbery. The State re-indicted Duncan under two counts, murder and armed robbery, arising from the same facts and circumstances. Prior to the third trial, the State made an entry of nolle prosequi as to the original charge which the trial court granted, dismissing the original indictment for capital murder. At trial, Duncan objected claiming that the re-indictment amounted to double jeopardy and violated his right to a speedy trial. The trial court overruled the objection.

¶ 13. “In regard to any double jeopardy claim, this Court has held that re-indictment for the same offense after an order of nolle prosequi does not bar prosecution.” Caston v. State, 823 So.2d 473, 504 (Miss.2002); see State v. Shumpert, 723 So.2d 1162, 1164 (Miss.1998) (citing Beckwith v. State, 615 So.2d 1134, 1147 (Miss.1992)). In Beckwith, the “Court has held that following a mistrial declared because of a hung jury, a nolle prosequi entered at the request of the State did not terminate the original jeopardy, and the State was not barred thereafter from seeking the re-indictment of and re-prosecuting the defendant from the same offense.” Beckwith, 615 So.2d at 1147 (citing Smith v. State, 158 Miss. 355, 359, 128 So. 891, 892 (1930)).

¶ 14. In Smith, the Court stated:

The appellant and his wife filed a motion to quash the indictment, setting up that, prior to the finding of the indictment, the appellant was indicted and tried for the murder of Case on an indictment against him alone; that the jury reported to the court that they were unable to agree on a verdict, and were discharged; that thereupon the district attorney entered a nol pros over the protest of the appellant, and a few minutes thereafter the grand jury returned into court the indictment on which the trial here was had. This motion was overruled. At the close of the evidence the court refused a request of the appellant for a directed verdict of not guilty.
* * *
The motion to quash the indictment is also wholly without merit, but counsel for the appellant contend that it should be treated as a plea of former jeopardy and sustained as such. Assuming that this can be done, there are two answers to the contention. First, there was no offer of evidence by the appellant, when the case was tried on its merits in support of the allegations of the motion to quash; and, second, under section 22 of the state Constitution “there must be an actual acquittal or conviction on the merits to bar another prosecution.”

128 So. at 892 (emphasis added).

¶ 15. Duncan argues that the re-indictment was a substantive change which amounted to two new crimes, not re-indictment. In Shumpert, 723 So.2d at 1167, the Court addressed a similar situation regarding re-indictment. The Court, in its conclusion, addressed the situation where an indictment was dismissed and a defendant was re-indicted on a separate charge, stating:

[Ujnder Miss.Code Ann. § 99-17-1, defendants are entitled to a speedy trial within 270 days of the date of arraignment. This Court, however, has held that were [sic] a defendant is re-indicted for the same crime, the 270 day rule does not begin to run until the arraignment on the re-indictment. Furthermore, this Court has stated that even if one views the rule by dismissing an indictment and re-indicting a defendant on a separate charge arising out of the same facts and circumstances, the Court would reach that issue under the Barker [v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)] balancing test. Analysis under such a test renders the conclusion that the defendants’ right to a speedy trial has not been violated.

Id. (Emphasis added).

¶ 16. Accordingly, we find that the trial court did not err in allowing the trial to proceed under the re-indicted charges. This assignment of error is without merit.

II. Yoir Dire

¶ 17. During voir dire, nineteen potential jurors indicated that they recognized or otherwise were acquainted with the Brady family. That number was reduced to sixteen by the end of voir dire. The defense made a vague request that the trial court strike all sixteen for cause. However, there was a specific request that Jurors 2, 4, 13, 19, 20, 23, and 46 be struck for cause rather than having to exercise a peremptory challenge. The trial court denied the request based on each of the potential jurors’ assurance that they could be fair and impartial. Of the twelve jurors that were actually seated to serve as the jury, only one of those jurors, Juror 32, Rashawanda Blakeney, stated that she knew the family. The record reflects the following transpired when Juror 32 was questioned by the defense during voir dire:

Q: Who do you know?
A: Smoky and his wife.
Q: Smoky and his wife. Is there anything about your knowledge of those people that would bother you one way or the other in this case? Do you think you could be fair and impartial to Mr. Duncan?
A: Yes.
Q: Thank you.

No further questions were asked of Juror 32. The defense did not establish how well Juror 32 knew these people, how she knew these people, or how these people were related to the victim. All that the defense’s line of questioning established was that Juror 32 could be fair and impartial to Duncan and her knowledge of these people would not affect her decision one way or the other.

¶ 18. Based on this line of questioning, the defense requested an additional peremptory strike in order to remove Juror 46, the juror that followed Juror 32 on the jury list in order for the defense to exercise a peremptory challenge as to Juror 32. The trial court stated that Juror 32 stated she could be fair and impartial, and the trial court denied the request for the additional peremptory challenge. The following transpired:

Defense: Your Honor, we ended up with only one person in the box Juror No. 32 that commented she knew the family-
The Court: Good.
Defense: The next one down the list would [be] No. 46. So, I would ask that I be granted one more strike to remove that.... I think that is reasonable.
State: Your Honor, Ms. Blakeney said she could be a fair and impartial juror, and in a county like this, you know, people are going to know people.
The Court: It is a rural county, and it’s a large family. She said she could be fair, so I’m going to take her at her word. So, your request is denied.

¶ 19. On appeal, Duncan argues that the trial court erred in not granting an additional peremptory strike. Duncan relies solely on Mhoon v. State, 464 So.2d 77 (Miss.1985), as authority. While Mhoon provides that a trial judge has the ability to afford counsel additional peremptory challenges, Duncan cites Mhoon out of the context in which it was written. Here, the facts of this case in no way compare to the factual situation this Court addressed in Mhoon.

¶ 20. In Mhoon, six out of the twelve jurors that served on the jury were either involved in law enforcement or were related by blood or marriage to law enforcement. Id. at 80. Twelve of the thirty-nine venire persons were either “policemen or related by blood or marriage to a current or former police officer.” Id. The jury foreman selected by the twelve jurors, six being law enforcement or related to law enforcement, was an active duty policeman in uniform. Id. This Court held that “in the normal case-with a normal distribution of law enforcement officers and their relatives in the jury pool-there is no reason why, if left unchallenged peremptorily, an officer or an officer’s relative should not serve on a jury if otherwise qualified to follow the law and the evidence.” Id. at 81.

¶ 21. The Court in Mhoon focused its analysis on the specific factual situation of that case, stating “[t]he composition of the jury in this case reflects a most unique and novel group.” (Emphasis added). This Court concluded:

In this particular case, however, the sheer number of law enforcement-eon-nected persons in the jury pool, as well as persons selected as jurors, has worked a great hardship on Mhoon. Given the statistical aberation in the jury pool, the judge could have done several things to ameliorate its prejudicial effect: (1) he could have afforded counsel additional peremptory challenges, (2) he could have increased the size of the available venire as well as affording additional challenges, or (3) he could have sustained at least some of the challenges for cause.

Id. (Emphasis added). However, the Court further held that “[tjhis assignment of error raises a novel issue which-were it not for the inordinate abundance of law enforcement persons and their relatives on the jury list in this case-would have little merit.” Id. As the Court is not faced with a similar situation involving law enforcement officers in this case, we do not find Mhoon helpful in resolving this case. See Le v. State, 913 So.2d 913, 924 (Miss.2005); see also Brown v. State, 890 So.2d 901, 908 (Miss.2004). Here, the facts of this case fall woefully short of the factual situation addressed by this Court in Mhoon as novel and unique.

¶ 22. As Mhoon is inapplicable to this case, we now examine the trial court’s decision to allow Juror 32 to serve on the jury. When reviewing the trial court’s decision whether to excuse a potential juror, the Court affords the trial court wide latitude in its decision. Caston, 823 So.2d at 499; see Poe v. State, 739 So.2d 405, 409 (Miss.Ct.App.1999). “It is well founded that the trial judge has the discretion to excuse potential jurors for cause if the court believes the juror could not try the case impartially.” Burt v. State, 493 So.2d 1325, 1327 (Miss.1986). As such, the trial court is empowered with broad discretion to determine whether a prospective juror can be impartial-notwithstanding the juror’s admission under oath as to his or her ability to impartial. Caston, 823 So.2d at 499.

¶ 23. In Scott v. Ball, 595 So.2d 848, 850 (Miss.1992), this Court held that “varied imponderables make the selection of a jury a judgment call peculiarly within the providence of the circuit judge, and one we will not on appeal second guess in the absence of a record showing a clear abuse of discretion.” The Court listed some of those “varied imponderables,” stating:

To the extent that any juror, because of his relationship to one of the parties, his occupation, his past experience, or whatever, would normally lean in favor of one of the parties, or be biased against the other, or one’s claim or the other’s defense in the lawsuit, to this extent, of course, his ability to be fair and impartial is impaired. It should also be borne in mind that jurors take their oaths and responsibilities seriously, and when a prospective juror assures the court that, despite the circumstance that raises some question as to his qualification, this will not affect his verdict, this promise is entitled to considerable deference. Harding v. Estate of Harding, 185 So.2d 452, 456 (Miss.1966); Howell v. State, 107 Miss. 568, 573, 65 So. 641, 642 (1914).

Scott, 595 So.2d at 850 (emphasis added).

¶ 24. Nothing presented by Duncan demonstrates that the trial court erred in taking Juror 32 at her word under oath that she could be fair and impartial. Based on the record and this Court’s precedent, we find that the trial court did not err in allowing Juror 32 to serve on the jury. This assignment of error is without merit.

III. Jury Instructions

¶25. Duncan argues that the trial court erred by granting jury instructions S-5 and S-6. Jury instruction S-5 is an armed robbery element instruction given by the trial court which stated:

The Court instructs the jury that Jonathan Duncan has been charged with the felony crime of armed robbery in Count II of the indictment. If you find from the evidence in this case beyond a reasonable doubt that:
1) the defendant, Jonathan Duncan, acting alone or in conjunction with another, did then and there willfully, unlawfully[,] and feloniously take personal property from the presence of Linda Rayner, to-wit: approximately $840.00 in U.S. currency belonging to James Brady and Brady’s Country Store, and;
2) that said taking was against her will by putting her in fear of immediate injury to her person by the exhibition of a deadly weapon, to-wit: a gun;
then under your sworn duty you shall find the defendant, Jonathan Duncan, guilty of armed robbery in Count II of the indictment.

¶ 26. Jury instruction S-6 is the aiding and abetting instruction given by the trial court which stated:

The Court instructs the jury that the guilt of a defendant in a criminal case may be established without proof that the defendant personally did every act constituting the offense alleged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by the person through the direction of another person as his or her agent, by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise.
If another person is acting under the direction of the defendant or if the defendant joins another person and performs acts with the intent to commit a crime, then the law holds the defendant responsible for the acts or conduct of such other persons just as though the defendant had committed the acts or engaged in such conduct.
Before the defendant may be held criminally responsible for the acts of others[,] it is necessary that the accused deliberately associated] himself in some way with the crime and participated] in it with the intent to bring about the crime.
Of course, mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that a defendant whether [sic] directed or aided and abetted the crime unless you find beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator.
In other words, you may not find any defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the defendant voluntarily participated in its commission with the intent to violate the law.

¶27. Duncan contends that jury instruction S-6 gave the jury the false impression that it could find Duncan guilty of armed robbery if he committed only one of the elements of the crime. Duncan relies on Berry v. State, 728 So.2d 568 (Miss.1999), as authority on appeal to support his contention that jury instruction S-6 should not have been granted.

¶ 28. In Berry, the Court held that “the problem with the offending instruction is that it appears to give the jury an additional option of finding the defendant guilty if she committed only one element of the crime without even finding that the crime was ever completed.” 728 So.2d at 571. Berry argued on appeal to this Court that the jury instruction was insufficient in that it did not require the jury to find that the crime was actually completed. Id. Berry also asserted that the jury instruction relieved the State of its burden to prove every element of the crime beyond a reasonable doubt. Id. The instruction the Court reviewed in Berry stated:

The Court instructs the jury that each person present at the time, and consenting to and encouraging the commission of a crime, and knowingly, willfully and feloniously doing any act which is an element of the crime, or immediately connected with it, or leading to its commission, is a principal.
One who aids, assists and encourages a transfer of cocaine is a principal and not an accessory, and his guilt in nowise depends upon the guilt or innocence, the conviction or acquittal of any other alleged participant in the crime. Therefore if you believe from the evidence, beyond a reasonable doubt, that Merlin-da Berry did willfully, unlawfully and feloniously do any act which is an element of the crime of transfer of cocaine, as defined by the Court’s instructions, or immediately connected with it, or leading to its commission, then and in that event, you should find Merlinda Berry guilty of transfer of cocaine as charged in the indictment.

Id at 570 (emphasis added). Here, we do not have a similar jury instruction as the Court considered in Berry. As such, Berry does not assist this Court in our review.

¶ 29. In Milano v. State, 790 So.2d 179, 185 (Miss.2001) this Court, itself, provided the following sample jury instruction from the federal model jury instructions which is identical to the jury instruction given in this case:

The guilt of a defendant in a criminal case may be established without proof that the defendant personally did every act constituting the offense alleged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by that person through the direction of another person as his or her agent, by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise.
If another person is acting under the direction of the defendant or if the defendant joins another person and performs acts with the intent to commit a crime, then the law holds the defendant responsible for the acts and conduct of such other persons just as though the defendant had committed the acts or engaged in such conduct.
Before any defendant may be held criminally responsible for the acts of others it is necessary that the accused deliberately associate himself in some way with the crime and participate in it with the intent to bring about the crime.
Of course, mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that a defendant either directed or aided and abetted the crime unless you find beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator.
In other words, you may not find any defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the defendant voluntarily participated in its commission with the intent to violate the law.
Fifth Cir. Pattern Jury Instructions (Criminal) 2.06 (Aiding and Abetting) (Agency) (1998).

The Court stated: “To avoid any further confusion, today, we prospectively adopt the Fifth Circuit’s Pattern Jury Instruction on Aiding and Abetting due to continuing litigation and confusion over this issue. The use of this instruction should cure future problems regarding this issue.” Milano, 790 So.2d at 185 (emphasis added).

¶ 30. Here, the trial court gave the jury instruction approved by this Court in Mi-lano for aiding and abetting. Accordingly, the trial court did not err in giving jury instruction S-6. This assignment of error is without merit.

IV. Bifurcated Trial

¶31. On appeal, Duncan argues that the trial court erred by not ordering a bifurcated sentencing hearing on the armed robbery. The jury fixed the sentence at life imprisonment for the armed robbery conviction. Duncan states on appeal that his research on this issue did not produce any case directly on point to support his position.

¶ 32. Miss.Code Ann. § 97-3-79 provides:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.

(Emphasis added). Strictly construing the criminal statute at issue, Miss.Code Ann. § 97-3-79, provides that it is within the jury’s discretion to fix the sentence for armed robbery at life imprisonment. Rule 10.04(B) of the Uniform Rules of Circuit and County Court Practice clearly states that the decision whether or not to order a bifurcated trial rests within the trial court’s discretion in its use of the discretionary word “may.” Rule 10.04(B) provides:

In all cases not involving the death penalty, wherein the jury may impose life sentence, the court may conduct a bifurcated trial. If the defendant is found guilty of an offense for which life imprisonment may be imposed, a sentencing trial shall be held before the same jury, if possible, or before the court if jury waiver is allowed by the court.

U.C.C.C.R. 10.04(B). (Emphasis added). See Stevens v. State, 840 So.2d 785, 787 (Miss.Ct.App.2003) (addressing the issue of a bifurcated hearing in an armed robbery case and holding no separate hearing was needed.). However, if the trial court does conduct a bifurcated trial, then the sentencing trial shall be held before the same jury, if possible. U.C.C.C.R. 10.04(B). This assignment of error is without merit.

y. j.n.o.v.

¶ 33. Duncan made a post-trial motion for J.N.O.V. The trial court subsequently entered its order denying Duncan’s motion for J.N.O.V.

¶ 34. A motion for J.N.O.V. challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). “[T]his Court properly reviews the ruling on the last occasion the challenge was made in the trial court.” Id. at 778. Here, this occurred when the trial court denied Duncan’s motion for J.N.O.V.

¶ 35. Duncan argues that the inconsistency in the witnesses’ testimony required the trial court to grant J.N.O.V. However, inconsistencies in witnesses’ testimony do not require the jury to reject the entire testimony. Kinney v. State, 336 So.2d 493, 497 (Miss.1976). “[I]nconsisten-cies are neither unusual nor grounds for the jury to reject all of their testimony.” Id. “Where there is conflicting testimony, the jury is the judge of the credibility of the witnesses.” Wetz v. State, 503 So.2d 803, 812 (Miss.1987).

¶ 36. In Bush v. State, 895 So.2d 836, 843 (Miss.2005), this Court set out the standard of review for legal sufficiency as follows:

In Carr v. State, 208 So.2d 886, 889 (Miss.1968), we stated that in considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical 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.”

The Court stated:

Should the facts and inferences considered in a challenge to the sufficiency of the evidence “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy is for the appellate court to reverse and render. Edwards v. State, 469 So.2d 68, 70 (Miss.1985) (citing May v. State, 460 So.2d 778, 781 (Miss.1984)); see also Dycus v. State, 875 So.2d 140, 164 (Miss.2004). However, if a review of the evidence reveals that it is of such quality and weight that, “having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient. Edwards, 469 So.2d at 70.

Bush v. State, 895 So.2d at 843.

¶ 37. Duncan argues that the facts of the case did not support an armed robbery conviction. However, a review of the record disputes that assertion and demonstrates that the elements of armed robbery as defined in Miss.Code Ann. § 97-3-79 were satisfied. Rayner testified that two black males wearing ski masks and gloves and brandishing pistols entered Brady’s Country Store on or about June 8, 2001. The men pointed their guns at Rayner and Rayner’s brother, Brady, and ordered them to hand over the money. Brady was shot and killed during the robbery. One of the two men took approximately $840 in cash that belonged to Brady and the store from Rayner. Rayner testified that she feared for her life during the robbery, and she was hysterical after seeing her brother shot and fall to the floor. The two men left the store with the money.

¶ 38. Jones testified that he and Duncan were the two men that robbed the convenience store. Jones testified that they wore ski masks and gloves that they obtained from Jones’s home and used a .45 caliber handgun and a BB gun that looked like a 9mm handgun. The .45 caliber handgun was obtained from Horne. Jones stated that he was the one that went behind the counter and took the money from Rayner after Duncan shot Brady. Jones testified that after they divided the money, Jones burned the stolen Nissan Altima they used in the robbery. There was discrepancy in Jones’s testimony as whether it was Jones’s or Duncan’s idea to rob the convenience store.

¶ 39. Horne testified that Duncan told him he had shot the man in the convenience store. Horne had supplied the .45 caliber handgun used in the robbery. There was discrepancy in Horne’s testimony as to how long he had known Duncan.

¶ 40. Despite discrepancies in the witnesses’ testimony, the jury was left the responsibility to weigh the credibility of these witnesses’ testimony at trial. As this Court has repeatedly held, the jury is the final arbiter of a witness’s credibility. Morgan v. State, 681 So.2d 82, 93 (Miss.1996); see also Spicer v. State, 921 So.2d 292, 312 (Miss.2006). In Spicer v. State, 921 So.2d at 311 (quoting Franklin v. State, 676 So.2d 287, 288 (Miss.1996)), this Court stated:

Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. [This Court] may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

¶ 41. Considering the evidence in the light most favorable to the State, we find there was sufficient evidence to convict Duncan of armed robbery. Accordingly, we find the trial court did not err in denying Duncan’s motion for J.N.O.V. This assignment of error is without merit.

VI. Rights of Defendants

¶ 42. In Duncan’s brief on appeal, he states, “Mississippi law states that Judges have a duty to protect the' rights of defendants even if no objections are made,” and he cites to Livingston v. State, 525 So.2d 1300 (Miss.1988), quoting a passage from the Court’s opinion. Nothing else is stated by Duncan in this assignment of error. Duncan makes absolutely no attempt to point the Court in the direction of any alleged rights that were violated. Likewise, Duncan does not provide any analysis of whether the rights that were allegedly violated constituted constitutional rights, or fundamental rights, to qualify as an exception to the rule that objections must be first raised in the trial court to avail themselves of appellate review.

¶ 43. Duncan neither sets forth any argument nor provides us with any clues as to the relevance of the cited case. This Court has repeatedly held that where the appellant provides no meaningful argument in support of an assignment of error raised, the issue is waived on appeal. See King v. State, 857 So.2d 702, 716 (Miss.2003); Jones v. State, 841 So.2d 115, 138 (Miss.2003); see also Clay v. State, 881 So.2d 323, 329 (Miss.Ct.App.2004). As there is no assignment of error or meaningful argument raised by Duncan for this Court to review, we deem Duncan’s issue waived on appeal.

VII. Cumulative Error

¶ 44. Duncan argues that the cumulative effect of the errors in his trial warrant reversal. In Wilburn v. State, 608 So.2d 702, 705 (Miss.1992), this Court held that “individual errors, not reversible in themselves, may combine with other errors to make up reversible error.” The question that must be asked in these instances is whether the defendant was deprived of a “fundamentally fair and impartial trial” as a result of the cumulative effect of all errors at trial. Id. If there is “no reversible error in any part, so there is no reversible error to the whole.” McFee v. State, 511 So.2d 130, 136 (Miss.1987).

¶ 45. In this assignment of error Duncan does not specify or point to any “cumulative error” that merits reversal. As such, we must look to the issues previously addressed. None of those issues previously raised by Duncan, rise to the level of reversible error either standing alone or when considered together. The verdict is supported by substantial evidence, and Duncan fails to demonstrate any procedural or substantive errors that warrant reversal. Based on the finding of no error, we find that there is no cumulative effect of any alleged error that merits reversal. This assignment of error is without merit.

CONCLUSION

¶ 46. For the foregoing reasons, the judgment of the Circuit Court of the Second District of Jasper County, Mississippi, is affirmed.

¶ 47. CONVICTION OF ARMED ROBBERY IN COUNT II AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

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

      . The record not does provide the jury list in this cause number, 23-22. The jury list was only provided for cause number 22-36 which resulted in two mistrials.

      . In Le, the Court addressed a juror that was a member of law enforcement that served on the jury. 913 So.2d at 923. Similarly in Brown, the Court addressed a juror that had a connection to law enforcement. 890 So.2d at 908.

      . Duncan briefly states that the language of jury instruction S-5 did not exactly track the language of the indictment word for word, especially the language "acting alone or in conjunction with another.” However, Duncan does not present any authority on appeal regarding the language of jury instruction S-5, and as such, is now procedurally barred on appellate review on this instruction. This Court has expressly stated that "[i]t is the duty of an. appellant to provide authority in support of an assignment of error.” Jones v. Howell, 827 So.2d 691, 702 (Miss.2002). Where an assertion of error is not supported by authority, that assertion is deemed abandoned. Id.; see Alexander v. Womack, 857 So.2d 59, 62 (Miss.2003) (unsupported assertions on appeal are procedurally barred); see also Webb v. De Soto County, 843 So.2d 682, 685 (Miss.2003).

      . Duncan was convicted of Count II: armed robbery. The jury, however, did not convict Duncan of Count I: murder. As such, only the armed robbery is the subject of the J.N.O.V. review.