author: GRIFFIS, J.,

text:
    W. Mark MEEKS, M.D., Appellant v. Sheila Fox MILLER, Peggy Fox Watz and Gary Merkell Fox, Next Friends and Sole Beneficiaries of the Intestate Estate of Merkell M. Fox, Appellees.
    No. 2005-CA-00200-COA.
    Court of Appeals of Mississippi.
    June 27, 2006.
    Rehearing Denied Oct. 10, 2006.

      Paul Hobart Kimble, J. Lawson Hester, C. York Craig, Jackson, attorneys for appellant.
    Barry Stuart Zirulnik, Jackson, Carlton W. Reeves, attorneys for appellees.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. By virtue of an interlocutory appeal, the Mississippi Supreme Court has asked us to review the second round of Miller v. Meeks, 762 So.2d 302 (Miss.2000), a medical malpractice case.

SUMMARY OF SUPREME COURT’S EARLIER DECISION

¶ 2. In Miller, the supreme court considered a summary judgment that was granted in favor of Dr. W. Mark Meeks. Id. at 303(111). The trial court initially determined that Dr. Meeks was an employee of the University of Mississippi Medical Center (“UMMC”) and that the statute of limitations had expired under the Mississippi Tort Claims Act, Mississippi Code Annotated § 11-46-1 to -23 (Supp.1999). Miller, 762 So.2d at 303(¶ 1). The supreme court determined that:

a genuine issue of material fact exists regarding whether the treatment provided by Dr. Meeks to Fox was performed in the course of his duties as an employee of UMMC rather than in his own private practice. Therefore, summary judgment in favor of Dr. Meeks on this issue was not warranted.
The specific issue to be determined is whether faculty physicians of UMMC who engage in clinical outpatient practice under the general auspices of the University, for which they are compensated, are state employees acting within the course and scope of their employment for purposes of the MTCA. This question evades ready explication. Under Miss.Code Ann. § 11 — 46—1(f) (Supp. 1999), if Dr. Meeks is found to be an independent contractor, he is not entitled to the protection of the MTCA. The MTCA, with a few enumerated exceptions, explicitly excludes independent contractors from its provisions. Pursuant to § 11 — 46—1(f), an employee is defined as follows:
“Employee” means any officer, employee or servant of the State of Mississippi or a political subdivision of the state, including elected or appointed officials and persons acting on behalf of the state or a political subdivision in any official capacity, temporarily or permanently, in the service of the state or a political subdivision whether with or without compensation. The term “employee” shall not mean a person or other legal entity while acting in the capacity of an independent contractor under contract to the state or a political subdivision; provided, however, that for purposes of the limits of liability provided for in Section 11-46-15, the term “employee” shall include physicians under contract to provide health services with the State Board of Health, the State Board of Mental Health or any county or municipal jail facility while rendering services under such contract....
Miss.Code Ann. § 11 — 46—1(f) (Supp. 1999). Unfortunately, this definition provides little guidance on the best means for determining the employment status of Dr.-Meeks.

Miller, 762 So.2d at 309-10 (¶ 18). The court then adopted five factors to be weighed to determine whether Dr. Meeks may be held liable under the Tort Claims Act:

1. the nature of the function performed by the employee;
2. the extent of the state’s interest and involvement in the function;
3. the degree of control and direction exercised by the state over the employee;
4. whether the act complained of involved the use of judgment and discretion;
5. whether the physician receives compensation, either directly or indirectly, from the patient for professional services rendered.

Id. at 310(¶20). The court then decided that the record would not allow it to review these factors, as applicable to this case. Id. at (¶ 21). The court concluded:

If Dr. Meeks is found to be acting as an independent contractor under the five-part test adopted in this opinion, he will not be shielded by the limitations on liability provided by the MTCA, or the defenses available under the MTCA. Likewise, Dr. Meeks would not benefit from the shorter one year statute of limitations provided by the MTCA. If, however, Dr. Meeks is found to be acting as a state employee, rather than as an independent contractor under the new test, he will enjoy all of the protections and defenses available under the MTCA.

Id. at 310-11(¶ 22).

¶ 3. After remand, the trial court allowed additional discovery. Then, Dr. Meeks again moved for summary judgment. Dr. Meeks asserted that he was a state employee and therefore immune. The trial judge denied the motion. Dr. Meeks filed an interlocutory appeal, which was granted by the supreme court and deflected here for review.

FACTS

¶ 4. This case originated in 1995 when Merkell Fox filed a medical malpractice suit alleging that Dr. Mark Meeks was negligent in his treatment of Fox. Fox died intestate, and the sole beneficiaries of his estate, Sheila Fox Miller, Peggy Fox Watz, and Gary Merkell Fox, were substituted as parties in the lawsuit. The supreme court’s original opinion contained an extensive analysis of the facts that were considered in the first summary judgment motion. We will not restate those facts here, but will discuss the relevant facts in our analysis.

¶ 5. On March 28, 2004, Dr. Meeks filed his motion to dismiss or, in the alternative for grant of summary judgment. Dr. Meeks sought dismissal, as a matter of law, based on sovereign immunity granted to him as an employee of UMMC, pursuant to Miss.Code Ann. § 11-46-1 to -23. Dr. Meeks cited Mitchell v. City of Greenville, 846 So.2d 1028, 1029(¶ 8) (Miss.2003) for the proposition that:

The Mississippi Legislature has determined that governmental entities and their employees shall be exempt from liability in certain situations as outlined in Miss.Code Ann. § 11-46-9. This exemption, like that of qualified or absolute immunity, is an entitlement not to stand trial rather than a mere defense to liability and, therefore, should be resolved at the earliest possible stage of litigation. Cf. Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Therefore, immunity is a question of law and is a proper matter for summary judgment under Miss. R. Civ. P. 56.

¶ 6. Dr. Meeks’ motion relied on: the affidavit of Suzanne M. Clay, the director of business services for the UMMC Department of Medicine; the affidavit of William C. Nicholas, M.D., the director of the Division of General Internal Medicine at UMMC; Dr. Meeks deposition; and UMMC medical records of Merkell Fox. In response, the Appellees relied on the affidavits of Sheila Miller and Gary Fox, Dr. Meeks’ deposition, the University Internal Medicine Associates partnership agreement dated October 1, 1991 with amendments, and the general partnership agreement for University Medicine Associates dated January 1, 1994 with the practice plan agreement attached.

¶7. The relevant portion of the trial judge’s order denying the motion for summary judgment held:

The Court, having applied the five-part test set forth in Miller v. Meeks, 762 So.2d 302 (Miss.2000) and discussed in cases subsequent thereto, further finds that at all material times relevant to the rendition of professional medical services to M. Merkell Fox, W. Mark Meeks, M.D. acted in the capacity of a private physician engaged in private practice of medicine and as an independent contractor and not in his capacity as a State employee. Therefore, Dr. Meeks is not entitled to sovereign immunity under the Mississippi Tort Claims Act, Miss.Code Ann § 11-46-1 et seq. in effect during the occurrence of the alleged negligent acts in 1993.

STANDARD OF REVIEW

¶ 8. This Court applies a de novo standard of review to a lower court’s grant or denial of summary judgment. Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002(¶ 7) (Miss.2001). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Russell v. Orr, 700 So.2d 619, 622(¶ 8) (Miss.1997). In the present case that requires that we view the evidence in the light most favorable, and all inferences shall be drawn in favor of the Appellees

ANALYSIS

I. Whether Dr. Mark Meeks was acting as an employee of the State of Mississippi while treating M. Mer-kell Fox and is thereby entitled to immunity.

¶ 9. During the period that the alleged negligence occurred, September 22, 1993, through December 13, 1993, Dr. Meeks was employed by the Board of Trustees of State Institutions of Higher Learning of the State of Mississippi (the “Board”) as an Assistant Professor of Medicine at the UMMC. Dr. Meeks entered into an employment contract with UMMC in April of 1993.

¶ 10. Pursuant to his contract, Dr. Meeks was required to be a member of the University of Mississippi Clinical Associates (“UMCA”) and participate in the practice plan of the Division of General Internal Medicine. Dr. Meeks membership in these associations was due to his status as a faculty member at UMMC.

¶ 11. Dr. Meeks was paid a base salary of $77,279, and he had the right to earn 100% of additional income generated through fees up to $140,000, inclusive of the base salary. Upon reaching the threshold amount of $140,000, any additional earnings were to be split evenly between Dr. Meeks and UMMC. This additional income was generated through participation in the practice plan, where he had a clinical practice and treated patients at the UMMC Pavilion.

A. Application of the Miller Factors

1. The nature of the function performed by the employee.

¶ 12. The first Miller factor requires that we examine the nature of the function performed by Dr. Meeks. To summarize their positions, Dr. Meeks argues that his participation in the practice plan was required by his employment contract with UMMC and was in furtherance of his duties as a UMMC faculty member. The Appellees counter with the argument that when Dr. Meeks treated patients at the Pavilion he was acting as an independent contractor and not entitled to the protections of the Mississippi Tort Claims Act. Miss.Code Ann. § 11-46-1 to -23.

¶ 13. We begin with Dr. Meeks’ argument. He claims that his treatment of Fox was in a facility provided by UMMC, on its campus. The outpatient climes were on the grounds of UMMC to provide a patient base for eventual teaching cases following the patient’s admission to the hospital. This function was a vital part of a working teaching hospital where the primary purpose is to educate future doctors in the State of Mississippi. Dr. Meeks asserts that he, and other Pavilion doctors, provide a public function by providing care to Medicare patients. Dr. Meeks also claims that the Mississippi legislature required UMMC to establish outpatient treatment programs. See Miss.Code Ann. § 37-115-25 (Rev.2001).

¶ 14. The Appellees argue that the supreme court recognized that Dr. Meeks was an employee at UMMC. What presents a material issue of fact, they contend, is that Dr. Meeks was also engaged in the private practice of medicine as an independent contractor when treating Fox. They cite Sullivan v. Washington, 768 So.2d 881 (Miss.2000). In Sullivan, Dr. George Meeks supervised an operation where the intern negligently perforated the patient’s bowels, resulting in serious complications and months of hospitalization. Id. at 882 (¶¶ 3-9). The court determined that the first Miller factor favored the doctor’s status as an employee because:

1. Dr. George Meeks functioned as a faculty member in a supervisory teaching capacity over surgery performed by an intern.
2. Dr. George Meeks was assigned to the operating room that day as part of his duties at UMMC.
3. Dr. George Meeks was not chosen by the plaintiff and did not have a private patient relationship with the plaintiff.
4. Dr. George Meeks served a public function by providing care for a Medicaid patient.

Id. at 884-85(¶ 18).

¶ 15. In this case, Sullivan is instructive but does not necessarily require the resolution advanced by the Appellants. Indeed, the two cases are similar because both Dr. George Meeks and Dr. Mark Meeks served a public function by providing care for a Medicaid patient. The two cases are different in that Mr. Fox had a private patient relationship with Dr. Mark Meeks. Hence, our comparison to Sullivan requires that we closely consider the first two reasons that the supreme court mentioned and make sure that it is in the proper context.

¶ 16. In Sullivan, the supreme court held that Dr. George Meeks was an employee of UMMC. The court reasoned that Dr. George Meeks served as a faculty member who was involved as the supervisor to an intern who had performed surgery. The court also found it important that Dr. George Meeks was assigned to the operating room that day as part of his duties at UMMC. In this case, Dr. Mark Meeks asserts that surgery and internal medicine are two distinct disciplines of medicine. The obvious definition of a surgeon is a physician who specializes in surgery. Surgery deals with the diagnosis and treatment of injury, deformity, and disease through an operation or procedure. A patient sees a surgeon because there is the need for an invasive procedure. The patient comes to the surgeon, through a referral or emergency room admission, and the surgeon determines whether a surgical procedure is medically necessary. If it is, the surgeon and the patient discuss the procedure, the risks involved and the benefits that they hope to achieve. The operation is performed at a certain time and place. A trained surgeon must obtain substantial skill in the performance of procedures and operations. Surgeons are trained with direct and individual supervision during the performance of a procedure or operation.

¶ 17. A physician who practices internal medicine, also called an internist, is a primary care physician who deals with the diagnosis and nonsurgica! treatment of diseases affecting adults. The medical practice and training of an internist is different than that of a surgeon. An internist typically has a clinical practice. The patient comes to the internist because of a particular health problem or for regular medical examinations. Internists treat patients for colds, the flu, high cholesterol, organ dysfunctions, heart problems and cancer, to name a few. The care provided is not reduced to an evaluation and then a procedure or an operation. The medical issues or problems may be treated by prescription drugs, over months or years, or the internist may refer the patient to a specialist in the field necessary to provide specialized medical care to the patient.

¶ 18. We are of the opinion that the first two conclusions reached in Sullivan are not instructive here. Dr. Meeks described the treatment of Mr. Fox and the process for internists to instruct students as follows:

Q. And when you saw him [Mr. Fox] at your clinic there were no residents present when you treated him, were there?
A. I don’t think there was a resident present during the clinic visits that we had together.
Q. Okay. So when you were treating him, it was not done for purposes of doing — of any teaching duties at UMC.
A. Not in the clinic, you know. When patients are — we see some of our patients in the Pavilion clinic with residents and/or students and sometimes we don’t. The majority of the time we don’t.
That varies somewhat from department to department how much — how many and what percent of the time patient encounters in that setting are — are done with students or residents. And when those individuals— they get admitted to the hospital, they usually are followed by — usually, but not always are followed by medical students or house officers at that time.
Q. ... the purpose of the Pavilion is to be self-sufficient and allow you doctors to make money over and above what you are paid as professors.
A. Yeah, I don’t — I presume that the purpose of the clinic is to — you know, in a teaching hospital like that you obviously have to see patients in an outpatient setting to be able to have a base of patients that are going to need hospitalization to come into the hospital to be cared for in that setting. And, I think, you know, there are probably two reasons for having a clinic like that. One is to provide the patient base of people to be admitted to the hospital for teaching programs. And the second — well, and three things, too — is just to provide care to the citizens in the area as part of the state hospital’s role.
And then the third thing is to provide some supplemental income in addition to the salary as provided for those practicing physicians....

¶ 19. The Appellants have offered no facts or evidence to dispute Dr. Meeks’ testimony. We are of the opinion that this case is not squarely within the facts presented in Sullivan. Accordingly, we are of the opinion that this first factor, the nature of the function performed by the employee, weighs in favor of the determination that Dr. Meeks was an employee and not an independent contractor in the treatment of Mr. Fox.

2. The extent of the state’s interest and involvement in the function.

¶ 20. The second Miller factor requires that we examine the extent of the state’s interest and involvement in the function. To summarize their positions, Dr. Meeks argues that the State of Mississippi absolutely has an interest in the employment of its faculty members to train medical students and an important part of them employment is to teach clinical and outpatient services. The state has also mandated the operation of these clinics for the very purpose Dr. Meeks asserts here, to provide a patient base for teaching cases. The authorizing statute along with the UMMC contracts and governing documents establish the system by which Dr. Meeks was compensated. The Appellees argue that the state had no interest because the outpatient clinic was self-employment income. Further, they argue that Dr. Meeks membership in the UMCA, which runs the Pavilion under the general auspices of UMMC, does not, standing alone, make him an employee of UMMC when treating Mr. Fox.

¶ 21. UMMC was established as a teaching hospital. Section 37-115-25 of the Mississippi Code Annotated provides:

There shall be built, equipped and operated as a part of the medical school, a teaching hospital of the size of not less than three hundred fifty bed capacity, together with all ancillary buildings and physical facilities needful or proper for the establishment, operation and maintenance of such a hospital as a part of a fully accredited four-year medical school, including clinical and out patient services and all types of services deemed to be necessary or desirable as a part of the functioning of such a teaching hospital Said teaching hospital shall be known as the University Hospital. There shall also be acquired and installed all needed equipment and supplies for the proper operation and maintenance of such medical school and hospital and other facilities for the purposes aforesaid. There shall be employed all needed personnel and services to operate said medical school and hospital and other facilities.

(emphasis added).

¶ 22. “[T]he State has a keen interest in employing faculty-physicians to teach medical students as part of the State’s continuing efforts to provide medical care to its citizens.” Clayton v. Harkey, 826 So.2d 1283, 1286(¶ 10) (Miss.2002). In Watts v. Tsang, 828 So.2d 785, 793(¶ 24) (Miss.2002), the supreme court recognized that UMMC’s faculty members have a mandated employment plan which provides a base salary, supplemented by money received at the teaching hospital for clinical and outpatient services. “This supplemental income is administered by UMMC’s medical practice plans.” Id. These medical practice plans are used to bridge the salary gap, and make it possible to hire and retain highly skilled physicians to teach. Id. at 790(¶ 12). Unquestionably, the state has an interest in hiring and retaining highly skilled physicians to teach. The state had an interest in the employment of Dr. Meeks by UMMC and in the operation of the Pavilion where he provided clinical services to Mr. Fox.

¶ 23. We are of the opinion that this second factor, the extent of the state’s interest and involvement in the function, weighs in favor of the determination that Dr. Meeks was an employee and not an independent contractor in the treatment of Mr. Fox.

S. The degree of control and direction exercised by the state over the employee.

¶ 24. The third Miller factor requires that we examine the degree of control and direction exercised by the state over Dr. Meeks. Dr. Meeks argues that the state exerted clear and comprehensive control over Dr. Meeks’ practice at UMMC and the Pavilion. The Appellees argue that there was no control over Dr. Meeks in connection with the treatment of Mr. Fox.

¶25. The Constitution and Bylaws of UMCA state that “authority over the affairs of the Association (determining policy, employing personnel, adopting a budget, authorizing projects, and long-range planning) shall be exercised by the entire membership, subject to regulations of the University of Mississippi Medical Center, University, and Board of Trustees of the Institutions of Higher Learning.” While being contractually required to maintain membership with the UMCA, Dr. Meeks was prohibited from practicing medicine outside his employment at UMMC. Further, he could only admit patients to UMMC and no other hospital.

¶26. In Owens v. Thomae, 904 So.2d 207, 211(¶ 17) (Miss.Ct.App.2005), this Court held that participation in a practice group does not change the physicians’ status as an employee of UMMC. Departmental practice plans are under the management and control of the departmental chairman. The departmental chairman provides daily oversight of the practice group, and the practice groups are subject to limited oversight by UMMC’s Vice Chancellor for Health Affairs and UMMC’s Associate Vice Chancellor for Administrative Affairs. Id. See also Mozingo v. Scharff, 828 So.2d 1246, 1253(¶ 17) (Miss.2002).

¶ 27. In Clayton, the supreme court held that:

[T]he State exercised significant control over Dr. Harkey. Dr. Harkey’s practice was restricted to UMMC, and he was prohibited from earning any income from the practice of medicine outside his contract. The State controlled the time and manner of payment of his salary. The State had the right to direct the details and manner of his work schedule. It had the right to supervise and inspect the services provided by him. It furnished the means and instruments necessary for his work and the patients for whose care he was paid his contractual salary. The State controlled the hospital premises and had the power to terminate his contract. The State, through the Department of Neurosurgery, monitored Dr. Harkey’s teaching, practice and research. The fact that Dr. Harkey must use his special training and medical judgment is inconsequential. That fact alone does not necessarily make the individual an independent contractor. A certain amount of discretion is necessary for Dr. Harkey to perform his duties as a physician.

Clayton, 826 So.2d at 1286(¶ 13).

¶ 28. We are of the opinion that this third factor, the degree of control and direction exercised by the state over the employee, weighs in favor of the determination that Dr. Meeks was an employee and not an independent contractor in the treatment of Mr. Fox.

A Whether the act complained of involved the use of judgment and discretion.

¶ 29. The fourth Miller factor requires that we examine whether the act complained of involved the use of judgment and discretion. Dr. Meeks argues that the fact that a physician used his professional judgment in the treatment of patients does not mean that he was an independent contractor. The Appellees’ argument is short. Their brief stated, “[wjhile not determinative of Dr. Meeks’ status as an independent contractor, Dr. Meeks does not dispute this factor weighs in favor of Appellee’s claim.” We read Dr. Meeks’ brief to argue that this factor does indeed weigh in Dr. Meeks’ favor.

¶ 30. Repeatedly this Court has held that physicians exercise a significant amount of judgment and discretion in treating, diagnosing and observing their patients. Owens v. Thomae, 904 So.2d at 211(¶ 18); Mozingo, 828 So.2d at 1253(¶ 18); Sullivan, 768 So.2d at 885(¶ 22). These acts of discretion are considerations but, but are not determinative acts. Mozingo, 828 So.2d at 1253(¶ 18). As in Mozingo, the fourth Miller factor is met in this case. Id.

¶ 31. In Clayton, the supreme court rejected the notion that the fact that the physician exercises independent medical judgment and discretion in the treatment of a patient determines his status as an independent contractor. Clayton, 826 So.2d at 1286(¶ 14). The court recognized that the fact that the physician “exercised his professional judgment and discretion through teaching and in the treatment of patients, does not mean he is an independent contractor.” Id. at 1287(1114).

¶ 32. We are of the opinion that this fourth factor, whether the act complained of involved the use of judgment and discretion, weighs in favor of the determination that Dr. Meeks was an employee and not an independent contractor in the treatment of Mr. Fox.

5. Whether the physician receives compensation, either directly or indirectly, from the patient for professional services rendered.

1133. The fifth Miller factor requires that we examine whether Dr. Meeks received compensation, either directly or indirectly, from the patient for professional services rendered. Dr. Meeks argues that he did not receive compensation for the medical care he provided Mr. Fox. The appellees argue that this is not true because he billed patients directly through his partnership, the Division of General Internal Medicine.

¶ 34. Under the terms of Dr. Meeks’ employment contract his practice through the UMCA was a method of supplementing his salary as an assistant professor of medicine. The income he earned through UMCA and the practice plan was derived from fees collected. Dr. Meeks argues that he did not receive any compensation from Mr. Fox for the services rendered because the bills were sent through the Division of General Internal Medicine. The supreme court in Mozingo agreed. Mozingo, 828 So.2d at 1253 (¶¶ 19-20). There the court recognized that the receipt of funds by a UMMC practice plan did not mean that all sums were retained by the doctor. His contract with UMMC required that certain amounts be shared or paid to UMMC. Id.

¶35. As in Mozingo, we are of the opinion that the fifth factor, whether Dr. Meeks received compensation, either directly or indirectly, from the patient for professional services rendered, weighs in favor of the determination that Dr. Meeks was an employee and not an independent contractor in the treatment of Mr. Fox

B. Conclusion based on analysis of Miller factors.

¶ 36. After having weighed and applied all five Miller factors, we conclude that each factor weighs in favor of Dr. Meeks. Because we find that Dr. Meeks was an employee of UMMC and as a result a state employee, we hold that the trial court erred when it denied Dr. Meeks’ summary judgment. As an employee of UMMC, Dr. Meeks is immune from liability.

II. Whether the Division of General Internal Medicine is an instrumentality of the State of Mississippi.

III. Whether the Mississippi Legislature has clarified its intention as to the definition of employee in Mississippi Code Annotated section 11-16-1

¶ 37. Having determined that Dr. Meeks is a state employee, we do not address issues identified as II and III and consider these issues as moot.

CONCLUSION

¶ 38. We find that Dr. Meeks acted as employee of the State of Mississippi when he treated Merkell Fox. Therefore, Dr. Meeks is entitled to immunity as provided in the Mississippi Tort Claims Act. Accordingly, we reverse and render the decision of the Hinds County Circuit Court and grant judgment in favor or Dr. Meeks dismissing the claims of the Appellees.

¶ 39. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. IRVING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Although we prefer not to use such term, we refer to Mr. Fox's beneficiaries as the “Appel-lees".

      . According to the affidavit of Sheila Miller, Mr. Fox’s medical bills were paid by a combination of Medicare and other private supplemental health insurance through AFLAC.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Contrell CARTER, Jr. a/k/a Cottrell Carter, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2004-KA-02109-COA.
    Court of Appeals of Mississippi.
    Aug. 22, 2006.
    Rehearing Denied Feb. 6, 2007.

      James A. Williams, Attorneys for Appellant.
    Office of the Attorney General by Deirdre McCrory, Attorneys for Appellee.
    Before LEE, P.J., SOUTHWICK, and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Contrell Carter, Jr., a/k/a Cottrell Carter, Jr., was convicted in Circuit Court of Lauderdale County of sexual battery and statutory rape, and received concurrent sentences of thirty years for each in the custody of the Mississippi Department of Corrections (“MDOC”). Aggrieved, Carter appeals. Finding no error, we affirm.

FACTS

¶2. In 2003, K.B.’s then six-year old daughter, D.B. (born on October 4, 1996), was spending time with her father, grandfather, and uncles. At some point during January or February of 2003, Carter, D.B.’s uncle, took D.B. and her eight-year-old brother, A.B., squirrel hunting in the woods. D.B. testified that, while in the woods, Carter gave A.B. the gun and told him to turn around. Carter then told D.B. to take off her clothes. D.B. refused, and Carter removed her clothes and had forcible sexual intercourse with her. D.B. then told her brother to shoot Carter, but he did not, and Carter took the rifle from him. Carter, A.B. and D.B. then returned to D.B.’s grandmother’s house.

¶ 3. Some time later, in August 2003, D.B. complained of a burning sensation when she urinated. She then told her mother and grandmother what had occurred with Carter, after which K.B. took her to the hospital and then to Wesley House, where she spoke with counselors.

¶ 4. When an investigator for the Laud-erdale County Sheriffs Department was informed of the alleged sexual assault, he met with D.B. and her mother at Wesley House, where D.B.’s account of events was tape-recorded. After listening to D.B.’s account of the events, the investigator decided that there was enough information to go forward and speak to Carter about the incident. Consequently, on August 11, 2003, the investigator visited Carter’s residence and told him that the sheriffs department needed to speak with him. The investigator then took Carter to the sheriffs department. There was no warrant for Carter’s arrest at this time, but the investigator testified that Carter went along voluntarily, and that he just “gave him a ride, more or less.”

¶ 5. After reaching the sheriffs department, officers read Carter his Miranda warnings, after which he signed a waiver of rights form. At this time, Carter gave an oral statement to police that “the charge was false, because [he] never actually stuck his penis in her vagina.” He admitted, however, that he “had his clothes off ... and that she had her clothes off except for her panties.... And she rubbed against [him] and [he] ejaculated.” Carter additionally made further statements concerning the sexual encounter in the woods. During a suppression hearing at trial, Carter testified that other statements made during the first interrogation were untrue. The next day, police again questioned Carter concerning the incidents with D.B., and he gave a written confession detailing both the incident in the woods and the bedroom incident.

¶ 6. Following a jury trial in the Circuit Court of Lauderdale County, Carter was convicted of one count of sexual battery and one count of statutory rape. He received a thirty-year sentence for each count, to run concurrently, in the custody of the MDOC. Aggrieved, Carter appeals, asserting: (1) that he was denied a fair trial, the right to confrontation, and due process due to violation of his rights because of the indictment’s failure to allege the child’s age when charging him with a sexual offense against a child; (3) that he was denied a fair trial because the State faded to disclose lay witnesses; (4) that the trial court erred in allowing the State to use a “send a message” argument during its closing argument; (5) that he was denied effective assistance of counsel; and (6) that he was denied a fundamentally fair trial when jurors, during voir dire, expressed revulsion over the charge of sexual acts with a small child.

ISSUES AND ANALYSIS

I. Whether Carter was denied a fair trial, the right to confrontation, and due process of law resulting in a violation of his rights to silence and counsel when his statement was admitted.

¶ 7. Carter first asserts that his confession was not voluntary, and that he was denied his right to remain silent and to counsel because he was not allowed an attorney when he requested one on August 11 and 12, 2003. He argues that officers persuaded him to give a statement by promising him a plea bargain, and that he was further coerced by the officers’ use of “good eop/bad cop” in the interview. He additionally argues that officers lied about false DNA evidence to frighten him.

¶ 8. “[T]he general rule is that for a confession to be admissible it must be given voluntarily and not given because of promises, threats or inducements.” Dancer v. State, 721 So.2d 583, 587(¶ 17) (Miss.1998) (citing Morgan v. State, 681 So.2d 82, 86 (Miss.1996); Chase v. State, 645 So.2d 829, 838-39 (Miss.1994)). The prosecution has the burden of proving the vol-untariness of the confession beyond a reasonable doubt. Morgan, 681 So.2d at 86. Testimony of an officer, or of other persons having knowledge of the facts, meets this burden and establishes a prima facie case “that the confession was voluntarily made without threats, coercion, or offer of reward” when the officer testifies. Chase, 645 So.2d at 838 (quoting Cox v. State, 586 So.2d 761, 763 (Miss.1991)).

¶ 9. The court heard conflicting evidence on the issue of voluntariness of Carter’s confession. After hearing testimony, during a suppression hearing, from Carter and both officers, the judge stated:

Well, the burden on the State, before any confession can be admitted into evidence, must be proven beyond a reasonable doubt that this confession was given freely and voluntarily without any threats, coercion, promises. I have listened to this evidence presented, and there are conflicts in this testimony. But what is uncontradicted is: Number One, when the defendant was brought down to the sheriffs department, he was cooperative in nature; he signed a waiver of his rights; he was read his Miranda rights and signed a waiver of those Miranda rights. Whatever he said, whatever that may be, it wasn’t taped; it was an oral statement. One officer said he didn’t say anything. The other said he gave an oral confession and it wasn’t taken down. Whatever was said on that date is admissible in the Court’s opinion, because it was not made as a result of any threats, coercion, or promises. He was taken to the jail while there is an ongoing further investigation going on. He was brought back, re-interrogated on August 12th. Again, from everyone, he was cooperative, his attitude had not changed. At that time, he was again read his Miranda rights and then again he signed them, stating that he was willing to talk. After a period of interrogation orally, they gave him a pen or pencil, and he wrote a four-page statement in his own writing. He made corrections. He read over his statement and made corrections to make sure what he wrote was accurate.
... I think it is very clear, right or wrong, that when Mr. Carter wrote this statement it was the intent and the purpose of the writing of the statement to show that: he did not force the victim to have sex with him; and, Number Two, he did not hurt her, while whatever he did as he admitted in his statement. That was imperative. That was on this defendant’s mind. What he didn’t know is that because of the age of the victim, consent was not even a legal issue; she couldn’t give consent. So in effect, he was confessing and didn’t even know it. Then he goes back to his cell and gets these cases and sees how these other suppressions, confessions are being suppressed, and then he changes his story, which frankly, his testimony he said today, in my opinion, is incredible.
I don’t believe there was any coercion. I don’t believe there were any threats of both officers that were present during the entirety or during part of his interrogation, have testified. Mr. Carter has made some allegations that there was some beating on tables, yelling in his ear, whatever, and then in his next breath he said he got this out of cases that he read. The only thing that will come close to a promise — well, they asked — during the time that he was writing down his statement, he started thinking about, Well, what sentence does this carry? And the officers didn’t know. They gave him a range. Even though this range wasn’t right, he knew that he could get up to 30 years, which is within the possibility of — and he kept on writing. He didn’t stop or tear it up. So that didn’t influence him in any way. No one made a promise to him if he told the truth he would get a lenient sentence, a specific lenient sentence and one year of counseling. Nobody told him that. That would be incredible. That’s not believable.
As to whether if he told the truth he could get a plea bargain agreement, obviously, a plea bargain agreement is less than a maximum. In this case, it’s 20 years up to life. But in his mind, if he had heard the year 30 years, anything less than that could have been part of a plea bargain agreement. He was already writing his statement when that discussion took place. I don’t feel like that influenced him in starting writing that statement. I think it’s obvious to the Court that what influenced him in making that statement is that he felt that if he wrote this statement, which is Exhibit 1 to this motion hearing, it was going to absolve him from any liability in this case. What he didn’t know is his interpretation of the law of what he thought it was was entirely erroneous. So I’m not going to suppress the statement.

¶ 10. A trial judge’s determination of whether or not a confession is admissible against a defendant is essentially a factual finding and will not be disturbed on appeal so long as the judge applies the correct legal standard, and the decision is not clearly erroneous or contrary to the overwhelming weight of the evidence. Dancer, 721 So.2d at 587(¶ 18) (citing Alexander v. State, 610 So.2d 320, 326 (Miss.1992); Stokes v. State, 548 So.2d 118, 122 (Miss.1989)). Where, on conflicting evidence, the lower court admits a statement into evidence this Court generally must affirm. Morgan, 681 So.2d at 87 (citations omitted).

¶ 11. In the case sub judice, the trial judge clearly applied the correct legal standard. We do not find his decision to admit the confession into evidence against Carter to be clearly erroneous or against the overwhelming weight of evidence. Carter’s arguments concerning threats, coercion, promises and denial of counsel appear in the trial transcript to have been largely fabricated and the product of Carter’s legal research in jail. We therefore find this issue to be without merit.

II. Whether the trial court erred when, during the suppression hearing, it inquired into the truthfulness of his statement to police.

¶ 12. Carter contends that he was denied his right to remain silent, counsel, due process of law, and to a fair trial when asked, during his suppression hearing, about the truthfulness of his statements to police. When attempting, during a suppression hearing, to determine whether or not a confession was voluntary, the focus is not on the truthfulness of the confession, but rather on the behavior of law enforcement officials, i.e., whether they coerced, threatened, or made promises to the defendant in order to induce a confession. See Rhone v. State, 254 So.2d 750, 753-54 (Miss.1971).

¶ 13. In the case sub judice, Carter’s testimony during the suppression hearing was persistently evasive and inconsistent. Much of the inquiry into truthfulness occurred as a result of impeaching Carter and attempting to ascertain his credibility. While attempting to refute Carter’s testimony that police told him what to write, however, the State pursued a line of questioning inquiring directly into the truth of the confession. Nonetheless, the trial judge made no reference to the truthfulness of the confession in denying the motion to suppress, and we see nothing in the record indicating that such line of questioning influenced his decision.

¶ 14. In a similar case, Powell v. State, 540 So.2d 13, 15-16 (Miss.1989), our supreme court stated:

In this case there was extensive and impermissible cross-examination concerning the truthfulness of [the defendants statement. The Circuit Court in the end made detailed findings of the fact that [the defendant] had been Miranda warned and had knowingly and voluntarily waived his right to remain silent. The statement accordingly was held admissible. Among those findings we find no reference to the statement’s truthfulness. Once the confession is before the jury, it is no longer impermissible — cross-examination about the credibility of the confession becomes a key jury question. The error in receiving the testimony on truthfulness at the suppression hearing does not require reversal.

(footnote omitted). Because we are not persuaded that the judge impermissibly considered the truthfulness of the confession in deciding its admissibility, we find no error. This issue is without merit.

III. Whether Carter was denied due process of law because of the indictment’s failure to allege the age in a sexual offense against a child.

¶ 15. Both indictments clearly state Carter’s date of birth and D.B.’s date of birth. This issue is wholly without merit.

IV. Whether Carter was denied a fair trial because of the State’s failure to disclose lay witnesses.

¶ 16. Carter asserts that he had no disclosure of the State’s intent to call K.B. to the stand, and that he was thus “blind sided by the total absence of disclosures by the State.” He further asserts that his interrogation by the investigators was taped-recorded, and “this item was never disclosed to the defense.” The record reveals that the State questioned KB. only as to D.B.’s age, whether she took D.B. to Wesley house to be interviewed, how the interview was documented, and whether the videotaped copy of the interview accurately depicted what happened at the interview. The only other testimony by KB. concerned additional foundational information as to the fact that D.B. was spending time with her uncles and family in August of 2003, as well as the location of her grandmother’s house. The State asserted to the judge that all of that information was contained in the discovery, and the judge thus allowed her testimony.

¶ 17. Carter additionally argues the continuance requested by his trial counsel during cross-examination of KB. should have been granted. The following exchange occurred during the cross-examination of K.B. by Carter’s trial counsel:

Q. [K.B.], have you spoken to either law enforcement or any member of the DA’s office, or investigators, or any of the DA’s up there prior to today about this matter?
A. Only when I came down for trial. But, you know, when they canceled the trial and stuff. Other than that
Q. Okay. And you’ve never spoke to any law enforcement officer or any deputy sheriff or anybody about this?
A. Yes, when it happened.
Q. Okay. And who did you speak to?
A. I don’t remember his name. He was at the hospital. It was the child welfare and the sheriff was at the hospital.
Q. Was it a deputy?
A. If I am not mistaken it was.
Q. And did he ask you questions about what had happened to [D.B.] or what [D.B.] told you?
A. He asked [D.B.] questions. He also asked me questions. I explained to him the same thing she did.
Q. And I assume, you responded to him?
A. Yes.
BY [DEFENSE COUNSEL]: Judge, at this time, I mean, I request a continuance until I get that statement. I mean, I have not been provided that statement.
BY THE COURT: We’ll take it up during the lunch. Is that a written statement?
BY [DEFENSE COUNSEL]: Judge, of course, discovery is oral statements, also, not reduced to writing.
BY THE COURT: I don’t know who to get it from.
BY [DEFENSE COUNSEL]: The deputy—
Q. Was it the same deputy that went to Wesley House and told y’all to go to Wesley House?
A. Yes.
Q. Do you know whether or not that was Deputy Graham? Does that sound familiar?
A. I don’t know.
Q. Or would you—
A. I would know him if I saw him.
Q. Okay. You seen him around here today?
A. No.
Q. Or upstairs or anything?
A. No.
Q. But you did give a statement to a member of the Lauderdale County Sheriffs Department regarding this case?
A. Yes.
BY [DEFENSE COUNSEL]: Judge, once again, you know, I request not to go on until I know what she said in that statement. I mean, it’s up to them to give me these statements, and they know who it is.
BY [PROSECUTION]: Your Honor, if it please the Court. This is witness— this is not an occurrence witness. I mean, she has given, you know, background information that is contained in the file, the date of birth of her child. All she has done is authenticate a tape, that was done in her presence. And the only other thing she has done was given information about the relationship between these people. That is not to my understanding, Judge, in any way written down as a formal statement of this witness; however, all of that information is contained in discovery.
BY THE COURT: All right. Well, it’s 11:25. What I am going to do is let the jury go ahead and go to lunch. We’ll contact Mr. Graham. And if he recalls what this witness said, let him write it down, a summary of what she said, and tender it to [defense counsel].
BY THE COURT: Let the record reflect that we’re still outside the presence of the jury. [Defense counsel], I have been given a copy of, I guess, a written summary of a statement by Kenneth Graham. Have you received that?
BY [DEFENSE COUNSEL]: Yes, sir.
BY THE COURT: All right. [Defense counsel], you, as well as the Court, have now received a summary of Mr. Andy’s Hatcher’s statement. Have you got that?
BY [DEFENSE COUNSEL]: Yes, sir.
BY THE COURT: Are you ready to proceed?
BY [DEFENSE COUNSEL]: Yes, sir.

f 18. “The admissibility of evidence is within the sound discretion of the trial judge.” Stewart v. State, 881 So.2d 919, 924(¶ 17) (Miss.Ct.App.2004) (citing Crawford v. State, 754 So.2d 1211, 1215(¶ 17) (Miss.2000) (overruled on other grounds)). Rather than following a bright line rule with regard to reviewing a trial judge’s denial of a continuance, we look to the facts of each case. Hooker v. State, 716 So.2d 1104, 1113(¶ 36) (Miss.1998).

¶ 19. Neither of the instances cited by Carter above constitute abuses of discretion by the trial judge. He let in K.B.’s testimony in order to establish foundational facts, which was fully within its discretion. As to the failure to grant continuance, there is no issue, as Carter’s trial counsel clearly stated that, after he received Graham’s written statement during recess, he was ready to proceed. Consequently, we find this issue to be without merit.

V. Whether the trial court erred in allowing the State’s “send a message” argument.

¶ 20. Carter asserts that the trial judge erred by overruling his trial counsel’s objection in the following instance during the State’s closing argument:

BY [PROSECUTION]:.... [T]he people of Lauderdale County, ladies and gentlemen, you know, the people of Lauderdale County certainly deserve justice.
BY [DEFENSE COUNSEL]: Judge, I object to that sending-a-message thing. That’s improper.
BY [PROSECUTION]: That’s not to send a message, Judge.
BY [DEFENSE COUNSEL]: They’re not concerned with the people of Laud-erdale County, Judge. This jury is concerned with justice, not the people of Lauderdale County. That’s an improper argument.
BY [PROSECUTION]: No, sir. I am saying that the people of Lauderdale County want justice. That is what I said.
BY THE COURT: All right. Overruled.

¶21. In Lee v. State, 858 So.2d 124 (Miss.2003), the Mississippi Supreme Court rejected a similar argument. In Lee, the prosecutor stated during closing argument, “She is looking to you for justice and the people of Wayne County are looking to you to make this, their streets safer. I mean we cannot have somebody that is going to do this on the streets of Wayne County.” Lee, 858 So.2d at 128(¶ 18). The supreme court stated that the comment “was not so egregious as to require reversal.” Id. at (¶ 19). “[T]he standard to warrant reversal is ‘whether the error affected a trial in such a way as to bring its fairness into question.’ ” Id. at 128-29(¶ 10) (citing Payton v. State, 785 So.2d 267, 271(¶ 13) (Miss.1999)).

¶ 22. We find that, in the case sub judice, the comment by the State in its closing argument in no way brought the trial’s fairness into question. We therefore affirm the decision of the trial court with respect to this issue.

VI. Whether Carter was denied a fundamentally fair trial when jurors, during voir dire, expressed revulsion over the charge of sexual acts with a small child.

¶ 23. Carter argues that the jury panel was “tainted” by the oral reactions of several jurors during voir dire, expressing revulsion at the nature of the charge. The following exchange took place during voir dire by the judge:

Q. Okay. All right. Thank you, ma’am. Is there anything about the nature of this type case, the fact that it’s a statutory rape and a sexual battery case, that you feel like might affect you somehow in this particular type case? Would y’all stand up please? Don’t raise your hand. If you will stand up. If you are going to respond to that, would you stand up? Didn’t somebody else raise their hand? Would you hold your numbers up, please? Juror 30....
A. [By Juror 30] Yes. I don’t know. I am just sitting here kind of repulsed by the whole thing, but I will try to be fair. But, you know, I just feel like I needed to voice that.
Q. Well, that is an honest answer, and I can appreciate that, because I don’t think anyone enjoys, you know, sitting on, you know, rape cases or sex cases. But my questions, I want to go a little bit farther, and you’ve told me your feelings, and I understand those. But do you feel like you can keep an open mind and listen to the evidence in reaching a fair and impartial verdict? Do you think you can do that? Or do you think that your feelings are just too strong that it would prohibit you from doing that?
A. I would like to — I would like to believe that I could be fair and impartial.
Q. You are just not sure?
A. I am not sure.
Q. Okay.
A. I am just kind of — trying to be honest.
Q. That’s fine. Thank you, ma’am. I can’t see your jury number. Juror 32 ...
A. [By Juror 32] Yes, sir. I had someone in my family that had the same thing done to them, but, I mean, I am against it, you know, and everything and I don’t know if I could— you know, because it done happened to somebody in my family that was close to me.
Q. So because of your personal experience in your family you feel like that might affect you as a juror?
A. Yeah.

During voir dire by Carter’s trial counsel, the following questions were asked:

Q. ... [A]nybody here feel that Mr. Carter is guilty simply because he is sitting there? Anybody who feels that, feels that way?
(NO RESPONSE)
Q. All right. Because of the nature of this case, obviously, this is going to be graphic testimony, graphic statements, and so forth. Is there anybody who feels that they simply can’t listen to that?
(NO RESPONSE)
Q. ... [A]s jurors, ... you understand that you have to wait until everything is over in order to make up your mind? Is there anyone here who feels that they can’t wait until they’ve heard all the evidence before they make up their mind?
(NO RESPONSE)
Q. ... [I]f they do not prove penetration but they do prove fondling, is anybody here who is going to say, I don’t care whether they actually proved this case, the sexual battery . and rape, I don’t care whether they proved it or not, I am still finding him guilty because he did those other things? You will find him guilty of sexual battery or rape?
A. [By Juror 39] I will probably have a hard time with it. If he done part of it, you know, then I will have a hard time with it. I am just being honest.
Q. Okay. Thank you. Is there anybody else who, again feels that way? Juror 39. Okay.
A. [By Juror 39] I would just say, Keep your hands to yourself, about fondling or anything else.
A. [By Juror 39] I won’t be able to participate.

¶ 24. Jurors 30, 32, and 39 were struck from the panel for cause, as were other jurors who had instances of sexual abuse in their families. Hence, they did not serve on the jury which convicted Carter. “While a comment by a single prospective juror during voir dire may taint the entire panel, where there is no evidence of such a taint, the court may correctly refuse to disqualify the entire panel from service if the jury affirms that it can render a verdict based solely on the evidence brought before the court.” Young v. State, 831 So.2d 585, 589(¶ 11) (Miss.Ct.App.2002) (citing Holland v. State, 705 So.2d 307, 339-40 (¶¶ 119-23) (Miss.1997)). There is a presumption in Mississippi that juries have followed the instructions of the trial judge. Young, 831 So.2d at 589(¶ 11) (citing Ragin v. State, 724 So.2d 901, 904(¶ 13) (Miss.1998)).

¶ 25. Carter has provided no further evidence beyond the mere assertion that his trial was fundamentally unfair because of prospective jurors’ expressions of revulsion. However, those prospective jurors did not serve on the jury that convicted Carter, and we find nothing in the record to indicate that the jury panel was tainted by their remarks. We find this issue to be without merit.

VII. Whether Carter was denied effective assistance of counsel.

¶ 26. Carter asserts that he was denied effective assistance of counsel when his trial counsel: (a) failed to object to numerous leading questions propounded to all the State’s witnesses; (b) failed to insist upon a continuance when the State made inadequate disclosure of its case; (c) failed to obtain an instruction for the voluntariness of the confession; (d) did not ask for a mistrial and get a ruling of inflammatory remarks of the members of the jury panels; and (e) failed to object to a hearsay statement in the State’s closing argument concerning the doctor’s examination of D.B.

¶ 27. Mississippi uses the test for ineffective assistance of counsel announced by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Alexander v. State, 605 So.2d 1170, 1173 (Miss.1992). Strickland requires the defendant to prove that, considering the totality of the circumstances, (1) trial counsel’s performance was deficient, and (2) defendant was prejudiced as a result. Colenburg v. State, 735 So.2d 1099, 1103 (¶ 9) (Miss.Ct.App.1999). “The defendant must show that but for his attorney’s errors, there is a reasonable probability that he would have received a different result in the trial court.” Id. “A strong but rebut-table presumption, that counsel’s performance falls within the wide range of reasonable professional assistance, exists.” Id. “Scrutiny of counsel’s performance by this Court must be deferential.” Id.; see also Ahmad v. State, 603 So.2d 843, 848 (Miss.1992) (discussing scope of review on appeal for counsel’s performance). “Having a trial strategy negates an ineffective assistance of counsel claim, regardless of eoun-sel’s insufficiencies.” Hall, 735 So.2d at 1127(¶ 10) (Miss.Ct.App.1999).

(a) Leading questions

¶ 28. Carter contends that his trial counsel failed to object to at least five leading questions during direct examination of K.B. As stated previously, the testimony of K.B. was largely foundational, and any leading questions did not lead to the admission of any evidence that would otherwise be inadmissible. Carter has failed to carry his burden in persuading this Court that his trial counsel’s lack of objection to leading questions during KJB.’s direct examination fell outside the broad range of reasonable professional assistance or trial strategy.

(b) Continuance

¶29. As discussed previously, any potential need for continuance was obviously remedied when Graham’s statement was made available to Carter’s trial counsel during the recess. Carter’s trial counsel stated that he was then ready to proceed, making it clear that a continuance was no longer required. Carter has failed to meet his burden on this assignment of ineffectiveness.

(c) Voluntariness instruction

¶ 30. Carter asserts that his trial counsel erred by failing to obtain a jury instruction concerning the voluntariness of his confession. He fails, however, to even suggest that this was not a matter of trial strategy or reasonable professional assistance. He therefore fails to meet his burden on this issue.

(d) Inflammatory remarks

¶ 31. As discussed above, Carter asserts that his trial counsel provided ineffective assistance by failing to ask for a mistrial when prospective jurors expressed revulsion, during voir dire, at the nature of the charge. Again, Carter provides nothing beyond the mere assertion that this was error. The remarking prospective jurors did not serve on the jury that convicted Carter, and there is nothing in the record suggesting that their remarks tainted the remaining jury panel. Carter fails to meet his burden.

(e)Hearsay statement

¶ 32. Carter asserts that counsel failed to object to a hearsay statement during closing argument, but our only clues as to what that statement might be are Carter’s mention of “Failure to Object during State’s Closing on Hearsay of Doctor’s Examination” in this heading, and “This argument was made to prove ‘penetration,’ the essential distinguishing element of course both of statutory rape and sexual battery.” It is difficult to discern what statement Carter is referring to in the State’s closing argument, as he does not specifically point it out in his brief. The only section in which medical testimony is even mentioned is in the following section of the State’s closing argument:

And you will see [Carter] says on the third page [of his confession]: “I never forced my penis into her vagina. I never tried to force it.” And then he says: “I never penetrated her. I never even tried to penetrate her.” Well, but then you read the rest of it and see, well you know, he is saying that on one occasion that he basically, forced his hand into her. What is that? That’s not penetration? On another occasion, he might have scraped her vagina with his finger.

There is no reference to a doctor’s examination in this passage, nor anywhere else in closing argument by the State. However, even if we were to find such a statement was made, the decision whether or not to object to hearsay falls within the broad discretion given to counsel in formulating and carrying out his trial strategy. Carter once again fails to meet the burden set forth by Strickland.

¶ 33. Neither individually nor cumulatively do these alleged “errors” by counsel constitute ineffective assistance of counsel. Because Carter fails to meet his burden with regard to either deficiency of counsel’s performance or subsequent prejudice, this issue is without merit.

¶ 34. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY OF CONVICTION OF STATUTORY RAPE, WITH SENTENCE OF THIRTY YEARS, AND CONVICTION OF SEXUAL BATTERY, WITH SENTENCE OF THIRTY YEARS, BOTH SENTENCES TO BE SERVED CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

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

      . D.B. testified that Carter "did it again” in his bedroom at her grandmother's house, thought it is not precisely clear at what point in time this occurred.

      . "A 'reasonable probability' is one sufficient to undermine confidence in the outcome of the proceeding.” Hall v. State, 735 So.2d 1124, 1127(¶ 7) (Miss.Ct.App.1999) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Conner v. State, 684 So.2d 608, 610 (Miss.1996)).


author: CHANDLER, J.,

text:
    Curtis Carlton BENNETT, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02166-COA.
    Court of Appeals of Mississippi.
    Sept. 19, 2006.
    Rehearing Denied Feb. 20, 2007.
    Certiorari Denied May 17, 2007.

      Michael W. Crosby, Gulfport, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, P.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J.,

for the Court.

111. On March 8, 2004, Curtis Bennett was indicted for the murder of his wife, Connie Bennett. Bennett waived his right to a jury trial, and a bench trial was held on October 6, 2004 in the Circuit Court of Harrison County. The court found Bennett guilty of murder and sentenced him to life in the custody of the Mississippi Department of Corrections. Bennett claims there was insufficient evidence to support a murder conviction. He also contends that he was entitled to an appeal bond during the pendency of his case before this Court.

¶ 2. Finding no error, we affirm.

FACTS

¶3. Curtis and Connie Bennett were married in 1985 and had two sons. In 2003, Connie worked as an operations manager of a Hancock Bank branch in D’Iberville, Mississippi. On October 16, 2003, Bennett went to Connie’s bank branch, talked with Connie, and obtained a check for $120,500, the amount of a home equity credit line which the couple had taken out in order to build a house. Wen-dolyn Maples, a bank employee, testified that Connie said she had tried to stop Bennett from withdrawing the money and that Connie planned to contact her divorce attorney about the situation. Connie told Maples that Bennett had told her several days before to “pack her stuff and leave.” Connie told Maples that Bennett had been angry about Connie’s taking time away from home to attend functions with her family.

¶ 4. On October 20, 2003, at 2:35 p.m., Bennett cashed the $120,500 check at another bank branch in Gulfport, Mississippi. Bennett then drove to his home and hid the money under the couch. Then, at approximately 3:40 p.m., Bennett entered the D’Iberville Hancock Bank branch where Connie worked. Bennett had a twelve-gauge shotgun. He told everyone in the bank to “get down.” Then, he jumped up on the counter, pointed the shotgun at a bank teller, and asked with determination, “Where’s Connie? Where’s Connie?” The teller, Lauren Williams, replied that she did not know where Connie was. Bennett jumped down. When Bennett was momentarily distracted, Williams went to the break room where she found Connie. Connie begged Williams not to tell Bennett she was there. Williams closed the break room door and Connie called 911 for assistance. Bennett jumped over the counter and forced open the break room door. Williams saw Bennett aim his gun at Connie and shoot Connie three times. The forensic pathologist, Dr. Paul McGarry, testified that Connie died from three gunshot wounds to her side and back inflicted at close range.

¶ 5. After the shooting, Bennett left the bank, got inside his truck, and sped away. Officer Troy Peterson, an investigator with the Harrison County Sheriffs Department, testified that he was notified of the shooting and was advised to look for a green truck, the vehicle Bennett was driving. Officer Peterson located a green truck coming from the direction of the bank. Officer Peterson pursued the truck while other police vehicles came to assist. The truck headed down a dirt road, turned into a wooded cul-de-sac, and stopped. Officer Peterson testified that Bennett could be seen in the truck holding a shotgun. Officer Peterson approached the truck and Bennett told Officer Peterson that he had shot his wife. Officer Peterson testified that Bennett did not appear to be disoriented. After an approximately eight-hour stand-off, Bennett exited the truck and was arrested.

¶ 6. Carl Rhodes, an investigator with the Harrison County Sheriffs Department, testified that he obtained an audio recording of the 911 call made by Connie prior to the shooting. The recording was admitted into evidence and contained the sound of three gun shots and a male voice which stated: “Hey, what’s so funny now, huh?”

¶ 7. At the bench trial, Lauren Williams identified Bennett as the person who had shot and killed Connie at the bank. Williams testified that Bennett was calm and determined on the day of the shooting. Maples testified that she was working at the bank the day Connie was shot. Maples identified Bennett as the man who entered the bank looking for his wife. Maples testified that Bennett had pointed the shotgun at the tellers and demanded to know where Connie was. Then, Bennett pointed the gun at the branch manager and other employees and asked them Connie’s whereabouts. Not receiving an answer, Bennett climbed over the teller counter and into the break room. Maples testified that Bennett seemed angry, but that he was not disoriented or confused.

¶ 8. Dr. Reb McMichael, a forensic psychiatrist, interviewed Bennett and reviewed Bennett’s psychological tests. At trial, Dr. McMichael opined that Bennett had known the difference between right and wrong at the time of the killing. When Dr. McMichael was asked how he arrived at that conclusion, he responded:

Well, I based it on everything that we had. Some of the specifics of the information that was provided to us that led me to that conclusion was the fact that he entered a bank with a weapon looking for his wife; shot her three times and then fled the scene at a high rate of speed. I think one of the bank personnel said they heard him peeling out in the parking lot. And then when he realized he was being pursued, he continued to flee until he was in a cul-de-sac in a park.
And then ... fairly early on when [police] were able to begin communicating with Mr. Bennett, he said, “I’m not going to shoot you.” So he fled indicating that he believed that he had some reason to flee. When he was finally confronted by the officers, he said, “I’m not going to shoot you,” indicating that he knew right from wrong at that point. And then there was a fairly long standoff ... on several occasions, he said, “I don’t want to go to prison.” He was talking about shooting himself, and they said, “Don’t do that.” The officers were trying to talk him out of it. He said, “I don’t want to go to prison. I know I’ve just killed my wife. I don’t want to go to prison.” And I think at some point one of the officers may have even tried to lead him to believe that the victim was still alive, and he said, and I paraphrase, “I shot her three times pointblank range. I know she’s not alive.”

¶ 9. Bennett testified. Bennett stated that he and Connie had been experiencing marital problems in the months prior to the shooting. They disagreed over Connie’s spending time away from home to tend to her ailing mother. Bennett stated that, on or about October 9, 2006, Connie said she was leaving. Then, she moved out. Bennett testified that he became confused when Connie refused to return home. Bennett testified that Connie was seeing a divorce lawyer. Bennett testified that the reason he cashed the home equity loan check for $120,500 was that he wanted to “aggravate” Connie and goad her to return home. Bennett knew that Connie would find out about the cashed check because she worked at another branch of Hancock Bank.

¶ 10. Bennett admits he took the money home and placed it under the couch. Bennett stated that, after hiding the money, he drove to a piece of property he owned and Connie phoned him. Bennett related that, during the telephone conversation, Connie admitted that she was having an affair. Bennett claimed that the next thing he remembered was the sound of police sirens. Bennett stated that it was not unusual for him to keep a loaded shotgun in the truck because he often traveled through the woods and liked to hunt.

¶ 11. The only other witness called to testify for the defense was psychiatrist Dr. Anthony Stock. Dr. Stock testified that he examined Bennett. Dr. Stock testified that Bennett was not suffering from a mental illness at the time of Bennett’s psychological testing. However, Dr. Stock testified that Bennett’s personality had disabled him from coping when he received the news of his wife’s affair. Dr. Stock believed that, at the time of the shooting, Bennett was in a dissociative state in which he may not have been able to distinguish right from wrong.

¶ 12. In rebuttal, Dr. McMichael again took the stand. Dr. McMichael disagreed with Dr. Stock’s opinion that Bennett had been in a dissociative state at the time of the shooting. Dr. McMichael testified that, from his review of Dr. Stock’s opinions, Dr. Stock primarily had based his opinion that Bennett was in a dissociative state at the time of the crime upon Bennett’s later inability to remember the shooting. Dr. McMichael opined that Bennett’s later inability to remember the shooting did not mean that, at the time of the shooting, Bennett was unable to recognize his acts as wrongful. Dr. McMichael stated that memory problems “are very common and determined by many different factors such as not wanting to remember, or being so angry or so excited at a time that you’re not really laying down effective memory. But [the memory loss doesn’t] directly bear on one’s knowledge of his own actions or the wrongfulness of those actions.”

¶ 13. The trial court found Bennett guilty of murder. The trial judge found that, based upon the totality of the evidence, Bennett had known right from wrong and had acted with deliberate design. The court found that Bennett had acted upon a plan from the evidence that he had cashed a $120,500 cashier’s check, entered the bank where his wife worked with a shotgun, left the bank, and then fled to the woods. The court concluded, “Curtis Bennett formed the intent to effect the death of Connie Bennett at a time sufficiently in advance of the actual event so as to satisfy the definition of ‘deliberate design.’ ”

If 14. Bennett filed a motion for a judgment notwithstanding the verdict or, in the alternative, a motion for a new trial. The trial court denied the motion and sentenced Bennett to life in the custody of the Mississippi Department of Corrections. Bennett subsequently filed a motion for an appeal bond, which the trial court denied. Bennett asserts the following issues on appeal, which we quote verbatim:

I. THE EVIDENCE WAS SUFFICIENT FOR A “MANSLAUGHTER” CONVICTION, NOT “MURDER.”

II. THE APPELLANT SHOULD BE ENTITLED TO AN APPEAL BAIL WHILE THE CASE IS PENDING BEFORE THE COURT.

¶ 15. We affirm. We find that the trial court properly found Bennett guilty of murder. Therefore, Bennett was not wrongfully denied an appeal bond.

LAW AND ANALYSIS

I. WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUPPORT BENNETT’S MURDER CONVICTION.

¶ 16. When reviewing the sufficiency of the evidence, this Court must view the evidence and all the reasonable inferences that may be drawn therefrom in the light most favorable to the verdict. Holloman v. State, 656 So.2d 1134, 1142 (Miss.1995). We must determine whether the evidence on any essential element of the charge is so lacking that no reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Id. “Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the [fact-finder].” Harveston v. State, 493 So.2d 365, 370 (Miss.1986).

¶ 17. Bennett alleges that the evidence could only support a conviction of manslaughter, not murder. Under Mississippi Code Annotated section 97-3-19(l)(a) (Supp.2005), murder is the unlawful killing of a human being without authority of law “[w]hen done with deliberate design to effect the death of the person killed.... ” Manslaughter is “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense .... ” Miss.Code Ann. § 97-3-35 (Rev.2000).

¶ 18. “Heat of passion” has been defined as:

[a] state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.

Graham v. State, 582 So.2d 1014, 1017 (Miss.1991). Heat of passion manslaughter requires more than actual “passion and anger.” There must be “such circumstances as would indicate that a normal mind would be roused to the extent that the reason is overthrown and that passion usurps the mind destroying judgment.” Barnett v. State, 563 So.2d 1377, 1380 (Miss.1990) (quoting Calvin v. State, 175 Miss. 699, 703, 168 So. 75, 76 (1936)). Thus, it has been held that “if a man catches his wife in adultery with another man and then and there slays her paramour, the provocation is so great that it extenuates his crime from murder to manslaughter.” Denham v. State, 218 Miss. 423, 429, 67 So.2d 445, 447 (1953). On the other hand, due to the absence of sudden provocation, a long-standing domestic dispute that prompted the husband’s killing of his wife was found to be insufficient to warrant a jury instruction on manslaughter. Graham, 582 So.2d at 1018.

¶ 19. A vital distinction between murder and manslaughter is the element of malice, or deliberate design. Woodham v. State, 800 So.2d 1148, 1156 (¶ 22) (Miss.2001). “The concept of deliberate design ‘generally implies careful and unhurried consideration of the consequences.’ ” Wade v. State, 748 So.2d 771, 776 (¶ 15) (Miss.1999) (quoting Gossett v. State, 660 So.2d 1285, 1293 (Miss.1995)). Heat of passion manslaughter requires the absence of malice. Miss.Code Ann. § 97-3-35; Wade, 748 So.2d at 776 (¶ 15). Thus, to be guilty under section 97-3-35, the defendant must have killed in the heat of passion and without malice and premeditation. Miller v. State, 733 So.2d 846, 849 (¶ 12) (Miss.Ct.App.1998).

¶ 20. Bennett contends that there was no evidence that he had formed a deliberate design to kill Connie and, therefore, he could only have been convicted of manslaughter. We disagree. When viewed in the light most favorable to the verdict, the evidence was sufficient to enable a reasonable fact-finder to conclude that, when Bennett killed Connie, he was acting upon a deliberate design to effect her death.

¶ 21. There was substantial evidence of premeditation in the record. There was evidence that Bennett and Connie had become estranged about a week before the killing. Four days before the killing, Bennett obtained a check for the couple’s home equity credit line. About an hour before the killing, Bennett cashed the check and hid the money under the couch. Then, Bennett drove to Connie’s place of employment with a shotgun. While inside the bank, Bennett calmly and purposefully searched for Connie while threatening other bank employees. Witnesses testified that Bennett was calm and determined, not disoriented or confused. When Bennett found his wife, he shot her three times. Immediately after the shooting, Bennett stated, “Hey, what’s so funny now, huh.” Following the shooting, Bennett had the presence of mind to flee to the woods. During his stand-off with police, Bennett admitted to having shot Connie, Bennett exhibited no memory loss, and Bennett did not mention that Connie had had an affair. In fact, the sole evidence that Connie ever had an affair was Bennett’s own testimony. Dr. McMiehael opined that, when Bennett shot Connie, Bennett knew the difference between right and wrong and was not in a dissociative state that prevented him from appreciating the nature of his actions. The trial court, acting as fact-finder, was entitled to accept Dr. McMichael’s testimony. Viewed in the light most favorable to the State, the evidence was sufficient to enable the trial judge to find that Bennett had formed a deliberate design to kill Connie.

II. WHETHER BENNETT WAS ENTITLED TO AN APPEAL BOND.

¶ 22. The trial court held that Bennett’s motion for an appeal bond should be denied under Mississippi Code Annotated section 99-35-115 (Supp.2005), which states, “[a] person convicted of felony child abuse, sexual battery of a minor or any offense in which a sentence of death or life imprisonment is imposed shall not be entitled to be released from imprisonment pending appeal to the Supreme Court.” Bennett alleges that the trial court erred in denying him an appeal bond since he should have been found guilty of manslaughter, which does not carry a sentence of life imprisonment. Because the trial court properly held that Bennett was guilty of murder, he was ineligible for an appeal bond under section 99-35-115. This issue is without merit.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF MURDER AND SENTENCE TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Abigail LANGLEY, a Minor, by and through Marty LANGLEY and Kim Langley, Parents and Next Friends, Appellant v. Johnny F. MILES, M.D., Chester K. White, M.D., Sanders Clinic for Women, P.A. and North Mississippi Medical Center, Inc., Appellees.
    No. 2005-CA-00991-COA.
    Court of Appeals of Mississippi.
    Oct. 3, 2006.
    Rehearing Denied Feb. 13, 2007.

      John W. Christopher, attorney for appellant.
    John G. Wheeler, Tupelo, attorney for appellees.
    Before LEE, P.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Abigail Langley, through her parents and next friends Marty and Kim Langley (Langley), sued Drs. Johnny F. Miles and Chester K. White, Sanders Clinic for Women, P.A., and North Mississippi Medical Center, Inc. (NMMC), alleging medical malpractice. The Circuit Court of Lee County granted summary judgment in favor of the defendants after denying Langley’s motion to withdraw deemed admissions. The court alternatively granted summary judgment on the ground that Langley had failed to produce a medical expert. Langley appeals, arguing (1) that her attorney’s treatment for cancer constituted good cause for the failure to timely serve responses to the defendants’ requests for admissions; (2) the trial court abused its discretion in deeming the requests for admissions admitted; and (3) the grant of summary judgment was error.

¶ 2. We find that the trial court’s denial of Langley’s motion to withdraw the deemed admissions was a proper exercise of the court’s discretion and that the court properly granted summary judgment in favor of Dr. Miles, Dr. White, Sanders Clinic, and NMMC. Therefore, we affirm.

FACTS

¶ 3. Langley filed her complaint on December 20, 2002, and an amended complaint on March 31, 2003, alleging the defendants were liable for obstetrical negligence that caused injury to Abigail Langley. On May 16, 2003, Dr. Miles, Dr. White, and Sanders Clinic served Langley with their answer and defenses; NMMC served Langley with a separate answer. On the same day, all four defendants served Langley with discovery requests, including interrogatories, requests for production of documents, and requests for admissions. The defendants’ answers and notice of service of discovery requests were filed with the trial court on May 19, 2003.

¶ 4. No further activity occurred in the case until September 11, 2003, when Dr. Miles, Dr. White, Sanders Clinic, and NMMC moved to deem the requests for admissions admitted pursuant to Rule 36(a) of the Mississippi Rules of Civil Procedure and for summary judgment. The defendants contended that, pursuant to Rule 36(a), the matters in the requests for admissions had been admitted by default due to Langley’s failure to serve the defendants with responses within thirty days. In the motion for summary judgment, the defendants argued that they were entitled to a judgment as a matter of law because Langley could not establish a prima facie case of medical negligence due to the deemed admissions or, alternatively, that Langley lacked expert medical evidence establishing the elements of negligence. On September 23, 2003, Langley moved for additional time to respond to the defendants’ motion. The motion was granted. On October 9, 2003, Langley served the defendants with the discovery responses.

¶ 5. On October 15, 2003, Langley filed a notice of service of discovery responses, a motion to withdraw the deemed admissions, and a response to the defendants’ motion for summary judgment. Langley’s counsel also submitted his own affidavit stating that, beginning on May 13, 2003, until approximately July 1, 2003, he was being treated for melanoma. During this period, counsel underwent two surgeries to remove a cancerous lesion from his flank. The first surgery occurred on June 4, 2003, and the second occurred on June 18, 2003. Counsel stated that he received the defendants’ discovery requests on or about May 19, 2003. He stated that he gave a cursory examination to the discovery requests but had failed to notice the requests for admissions. Counsel said that he gave the discovery requests to a paralegal. The paralegal left the firm on or about July 15, 2003, never having alerted counsel to the presence of the unanswered requests for admissions. At oral argument in this case, counsel stated that he became aware of the requests for admissions in July 2003 when he returned to his office after his cancer treatment.

¶ 6. A hearing occurred in the trial court on February 11, 2005. At the hearing, Langley sought to show that there was good cause for the failure to timely respond to the requests for admissions. Langley’s counsel stated that he recovered from his cancer surgeries in August 2003 and returned to work after Labor Day 2003. The trial judge stated that she had no problems with the delay in responding that had been caused by counsel’s illness. However, she found that counsel had failed to adequately explain the additional delay that had occurred after Labor Day 2003. For that reason, the court granted the defendants’ motion to deem the requests admitted and denied Langley’s motion for withdrawal of the admissions. Pursuant to the deemed admissions, Langley admitted that the health care services provided by the defendants were not negligent but comported with the applicable standards of care and that Langley did not have a competent health care expert to advance a case of medical negligence against the defendants. Based on these admissions, the court found that there was no genuine issue of material fact for trial and that the defendants were entitled to summary judgment. Alternatively, the court found that the defendants were entitled to summary judgment because Langley had failed to produce sworn testimony by a medical expert in response to the motion for summary judgment.

LAW AND ANALYSIS

I. DID APPELLANT’S COUNSEL HAVING SURGERY AND TREATMENT FOR CANCER OF THE MELANOMA VARIETY DURING THE TIME THE ANSWERS WERE DUE ON THE DEFENDANTS’ REQUESTS FOR ADMISSIONS CONSTITUTE GOOD CAUSE TO SET ASIDE THE DEEMED ADMISSIONS BY DEFAULT?

II. DID THE LOWER COURT COMMIT ERROR AND ABUSE ITS DISCRETION IN GRANTING AP-PELLEE’S MOTION TO DEEM THE ADMISSIONS ADMITTED?

¶ 7. We address these issues concerning the deemed admissions together because the appellant has argued them together in her brief. Rule 36(a) of the Mississippi Rules of Civil Procedure provides that a party may serve on another party “a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact....” The rule provides that the matters are admitted

unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of forty-five days after service of the summons upon him.

¶ 8. Rule 36(b) states that any matter admitted pursuant to the rule “is conclusively established unless the court on motion permits the withdrawal or amendment of the admission.” A matter deemed admitted due to a failure to timely serve responses is the functional equivalent of a stipulation or an admission in a pleading. DeBlanc v. Standi, 814 So.2d 796, 801(¶ 25) (Miss.2002). The court may permit withdrawal or amendment of the admission when withdrawal would subserve the presentation of the merits of the action and when the opposing party fails to satisfy the court that withdrawal would prejudice the opposing party in maintaining his action or defense on the merits. M.R.C.P. 36(b). The court’s allowance of withdrawal or amendment is “subject to the provisions governing amendment of a pre-trial order.” Id.

¶ 9. On review of a trial court’s denial of a Rule 36(b) motion, we are mindful that matters concerning discovery are within the sound discretion of the trial court. Earwood v. Reeves, 798 So.2d 508, 514(¶ 19) (Miss.2001). This Court will not overturn a discovery order absent an abuse of discretion. Id. Regarding requests for admissions, “[a] certain amount of discretion is vested in the trial judge with respect to whether he or she will take matters as admitted.” Id. (citing In re City of Ridgeland, 494 So.2d 348, 353 (Miss.1986)). The supreme court has stated that, while Rule 36 is to be enforced according to its terms, the trial court has broad discretion to grant amendments or withdrawals of deemed admissions in the proper circumstances. DeBlanc, 814 So.2d at 801—02(¶ 26). On review, the court is likely to affirm the trial court’s enforcement of Rule 36 according to its terms if no justifiable excuse or explanation was offered for the default. Id. at 801(¶ 22); Earwood, 798 So.2d at 517(¶ 29); see also Byrd v. Bowie, 933 So.2d 899(¶ 14) (Miss.2006) (finding that the trial court was within its discretion in rejecting “[t]he Defendants’ meager proof or reasons given to the trial court for their failure to respond.”).

¶ 10. In Earwood, Earwood served a response to requests for admissions ten months late upon the mistaken belief that a motion to transfer venue would toll the time for responding. Id. at 515(¶ 21). Earwood did not serve the responses until after the requesting party had filed a motion to deem requests admitted, to compel, and for partial summary judgment. Id. at 516(¶ 25). The trial court refused to permit withdrawal of the admissions though the admissions would result in entry of summary judgment against Earwood. Id. at 516-17 (¶¶ 26,27). The supreme court affirmed, explaining:

We are compelled to acknowledge the adage that rules are promulgated for a purpose, this being precisely an instance in which that principle applies. Mechanisms exist whereby a trial court may hold that an untimely response does not constitute a deemed admission because the trial court has broad discretion in pretrial matters. However, because of the trial court’s broad discretion in such matters, it certainly may also require that parties comply with the rules as stated. Here, the trial court found no compelling reason to allow disrespect of M.R.C.P. 36 regarding the set time for responding to requests for admissions; and we find no compelling reason to hold that such was an abuse of discretion. Earwood knew or should have known the severe consequences of failing to timely respond.

Id. at 516(¶ 26).

¶ 11. In the instant case, the defendants served their requests for admissions on May 16, 2003. During the thirty day period prescribed by Rule 36(a), the trial court did not adjust the time allowed for the response. Therefore, Langley had thirty days in which to serve responses upon the defendants, or the admissions would stand admitted and the matters therein conclusively established. M.R.C.P. 36. Langley did not serve the responses until October 9, 2003, almost five months after receiving the requests for admissions. The trial court held that the requests for admissions had been admitted due to Langley’s failure to serve responses on the defendants within thirty days as provided by Rule 36(a). The court denied Langley’s Rule 36(b) motion to withdraw the deemed admissions.

¶ 12. On appeal, Langley argues that the Rule 36(b) ruling was an abuse of discretion. Langley argues that her counsel’s cancer treatment constituted good cause for the failure to respond within the thirty day period. The trial court did not expressly state that counsel’s cancer was good cause or a justifiable excuse for missing the deadline to serve responses. However, the court stated that it was not counting the time missed for counsel’s illness against Langley and was only concerned with the period that had elapsed between counsel’s return to work after Labor Day 2003 and the date the responses were served on October 9, 2003. Thus, the court’s denial of the motion to withdraw was not based upon the time lost due to counsel’s cancer treatment, but upon counsel’s delay in taking action once his illness had resolved.

¶ 13. Langley argues that, because she had good cause for failing to meet the thirty-day deadline, her continued failure to respond after the deadline had passed could not be counted against her. Langley’s counsel contends that he thought the service of a response after the deadline had passed would have been a futile act because, by then, the requests had already been admitted by default. With these arguments Langley contends that, in ruling on a motion to withdraw deemed admissions, the trial court should be restricted from considering the entire length of the delay in responding or taking other action, but should only consider whether or not good cause existed for inaction during the period for responding allowed by Rule 36(a).

¶ 14. When reviewing the trial court’s ruling that requests for admissions were deemed admitted by default, the court has routinely considered the lower court’s exercise of discretion in light of the total length of the time taken for responding to the requests for admissions. See Earwood, 798 So.2d at 516(¶ 25) (almost ten months between service of the requests and the response); Sunbelt Royalty, Inc. v. Big-G Drilling Co., 592 So.2d 1011, 1013 (Miss.1992) (nine months between service of the requests and the responses); Saw yer v. Hannan, 556 So.2d 696, 698 (Miss.1990) (responses filed three weeks after they were due). In the above cited cases, no justifiable excuse was given for the defaulting party’s failing to respond within the time allowed by Rule 36(a). In the instant case, Langley’s failure to comply within the time allowed was explained to the trial court’s satisfaction by counsel’s illness. However, the trial court was within its discretion in also considering counsel’s neglect of the situation after his illness had resolved and he had returned to work. When a party is in default under Rule 36(a), the trial court and the requesting party should not have to wait indefinitely for the defaulter to serve the responses, to file a motion for an extension of time pursuant to Rule 6(b)(2), to file a Rule 36(b) motion to withdraw, or to take other action to attempt to rectify the default. Rather, it is within the court’s broad discretion concerning discovery matters to consider a party’s failure, after the illness or other justifiable impediment to responding has ended, to make a reasonably timely effort to correct the default.

¶ 15. The trial court found that the conduct of Langley’s counsel after his illness had resolved was insufficient to merit withdrawal of the deemed admissions. Given the facts surrounding the delay, we find that this ruling was within the court’s discretion. Counsel stated in his affidavit that his sutures from his second surgery were removed on July 1, 2003. Soon thereafter, he saw an oncologist who determined that no cancer cells were present; after that, he was to follow up with the oncologist every three months to monitor for recurrence. Counsel admitted at oral argument before this Court that he became aware of the unanswered requests for admissions sometime in July 2003. Counsel informed the lower court that he did not recover from the surgery until August 2003 and that he did not return to work until after Labor Day 2003. The trial court credited Langley for all of the delay which her counsel averred was caused by his cancer treatment and subsequent recuperation. But, as the trial court found, counsel had no excuse for the additional delay after he had returned to work. Indeed, Langley’s counsel did nothing concerning the requests for admissions until after the defendants had served their motion to deem the requests admitted and for summary judgment. As the court observed in Sunbelt Royalty, in the case sub judice, the requests for admissions were “a simple matter which could have been answered in a few minutes’ time.” Sunbelt Royalty, 592 So.2d at 1013. We recognize that the result in this case is a harsh one. Nonetheless, given the trial court’s broad power to regulate discovery, the court was within its discretion in denying Langley’s motion to withdraw the deemed admissions based upon the inaction of Langley’s counsel.

III. DID THE LOWER COURT COMMIT ERROR IN GRANTING AP-PELLEES’ MOTION FOR SUMMARY JUDGMENT?

¶ 16. The trial court alternatively granted summary judgment based upon Langley’s failure to produce sworn expert medical evidence in response to the defendants’ motion for summary judgment. Langley maintains that, assuming we find that the admissions were admitted, her appeal of the grant of summary judgment is limited to challenging the trial court’s alternative basis for summary judgment. Though we affirm the lower court’s ruling on the admissions and the grant of summary judgment based on the admissions, we address Langley’s alternative argument.

¶ 17. A party is entitled to summary judgment if the evidentiary matters before the court, such as pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, demonstrate that there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. M.R.C.P. 56(c). This Court reviews the grant or denial of summary judgment de novo. Saucier ex. rel. Saucier v. Biloxi Reg’l Med. Ctr., 708 So.2d 1351, 1354(¶ 10) (Miss.1998). We will consider all of the evidence before the lower court in the light most favorable to the non-moving party. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995). The moving party bears the burden of persuading the court that there is no genuine issue of material fact to be tried. Shaw v. Burchfield, 481 So.2d 247, 252 (Miss.1985). The party with the burden of proof of a claim or defense at trial carries the burden of production. Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1355 (Miss.1990). In a medical malpractice action, the plaintiff carries the burden of proof at trial and thus, the burden of production on summary judgment. Id. Unless the matter is within the common knowledge of laypersons, to establish a prima facie case of medical negligence against a physician, a plaintiff must present competent expert testimony as to the applicable standard of care, breach, and proximate causation. Phillips v. Hull, 516 So.2d 488, 491 (Miss.1987).

¶ 18. In their motion for summary judgment, the defendants averred that Langley lacked expert medical evidence establishing the elements of negligence and that, in the absence of such proof, no genuine issue of material fact existed. Langley produced no sworn medical evidence in response to the motion. Langley does not dispute that expert testimony would have been required to establish a departure from the standard of care in this case. She contends that, because no supporting affidavits were attached to the defendants’ motion for summary judgment, the defendants failed to meet their burden of persuasion and Langley had no obligation to produce any sworn medical evidence.

¶ 19. Langley’s argument is without merit. “The party moving for summary judgment bears the burden of persuading the trial court that no genuine issue of material fact exists, and that they are, based on the existing facts, entitled to judgment as a matter of law.” Paepke v. N. Miss. Med. Ctr., 744 So.2d 809, 812(¶ 14) (Miss.Ct.App.1999). In this case, the defendants met this burden by pointing out from the existing facts that, because Langley lacked expert medical evidence, there was no genuine issue of material fact and the defendants were entitled to a judgment as a matter of law. Langley had the burden of proof of medical negligence at trial and, to withstand summary judgment, Langley needed to produce evidence of “significant and probative value” tending to show that a genuine issue of material fact existed. Id. This would have required a sworn affidavit of an expert witness attesting to the standard of care and that the defendants’ treatment of Langley breached the standard of care. Palmer, 564 So.2d at 1357. Langley failed to produce any sworn expert medical evidence in response to the defendants’ motion. Therefore, the trial court appropriately granted summary judgment on this ground.

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

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