text:
    Craig ALLEN v. NATIONAL RAILROAD PASSENGER CORPORATION.
    No. 2005-CA-01106-SCT.
    Supreme Court of Mississippi.
    July 27, 2006.

      Teresa Earley Harvey, Madison, Samuel Jay Rosenthal, attorneys for appellant.
    Kenneth David McLean, Senatobia, George H. Ritter, Jackson, attorneys for appellee.
    Before COBB, P.J., CARLSON and GRAVES, JJ.
   CARLSON, Justice,

for the Court.

¶ 1. Because the trial court dismissed his tort lawsuit for damages because of his repeated failure to disclose in discovery his prior back injury and workers’ compensation claim, the plaintiff has appealed to us. Finding no error by the trial court, we affirm its judgment of dismissal.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Craig Allen was an assistant conductor for the National Railroad Passenger Corporation (Amtrak). In 2001, Allen suffered a spinal injury while unloading baggage on the job in Jackson, and he thereafter sued Amtrak pursuant to the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51 et seq., in the Circuit Court for the First Judicial District of Hinds County. During discovery, Amtrak asked Allen if he had ever suffered a similar injury or filed a workers’ compensation claim. In separate responses to Amtrak’s inquiries propounded via interrogatories, requests for production of documents, and deposition questions, Allen denied that he had ever suffered a previous back injury or filed a workers’ compensation claim.

¶ 3. Later, after the close of discovery, Amtrak learned that Allen not only had in fact previously suffered disc injuries to his lower back in the same location, but that Allen had also filed a claim and received a workers’ compensation award for that earlier injury. This earlier injury had occurred in 1993 when Allen, a former police officer, was struck by a ear while directing traffic. Because of Allen’s false responses, given under oath, Amtrak filed for sanctions in the form of a motion to dismiss under the provisions of Miss. R. Civ. P. 37. Allen responded with a sworn affidavit, stating that the incident and injury were so minor, he had “honestly completely” forgotten about them. At the hearing on the Rule 37 motion, Allen’s attorney noted that Allen was present if the trial judge needed to personally question him, but the judge found such interrogation unnecessary. The trial court found Allen’s omission to be willful conduct which prejudiced Amtrak and found the deterrent value of Rule 37 could not be achieved by a less harsh result than that of dismissal. The trial court thus granted Amtrak’s motion and dismissed Allen’s case with prejudice.

¶ 4. On appeal to us, Allen complains that (1) there was insufficient evidence of willfulness or bad faith on his part to justify a dismissal of his lawsuit; (2) the FELA provides a clear preference for credibility determinations to be made by the fact-finder (jury); and, (3) Allen’s due process rights were violated when he was not permitted to testify at the hearing before the trial judge.

DISCUSSION

I. EVIDENCE OF BAD FAITH AND WILLFULNESS

¶ 5. Reviewing another case with similar facts concerning discovery abuse resulting in dismissal with prejudice, we stated:

The decision to impose sanctions for discovery abuse is vested in the trial court’s discretion. The provisions for imposing sanctions are designed to give the court great latitude. The power to dismiss is inherent in any court of law or equity, being a means necessary to orderly expedition of justice and the court’s control of its own docket. Nevertheless, the trial court should dismiss a cause of action for failure to comply with discovery only under the most extreme circumstances.
Such dismissals by the trial court are reviewed under an abuse of discretion standard. When this Court reviews a decision that is within the trial court’s discretion, it first asks if the court below applied the correct legal standard. If the trial court applied the right standard, then this Court considers whether the decision was one of several reasonable ones which could have been made.

Pierce v. Heritage Props., Inc., 688 So.2d 1385, 1388 (Miss.1997) (internal citations omitted). “This Court will affirm a trial court’s decision unless there is a ‘definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.’” Id. (quoting Cooper v. State Farm Fire & Cas. Co., 568 So.2d 687, 692 (Miss.1990)). One certainty is that we are to give great deference in these cases to the trial judge’s exercise of discretion. “Trial courts have considerable discretion in discovery matters and decisions will not be overturned unless there is an abuse of discretion.” Scoggins v. Ellzey Beverages, Inc., 743 So.2d 990, 995 (Miss.1999); (quoting Robert v. Colson, 729 So.2d 1243, 1245 (Miss.1999)).

¶ 6. Allen argues on appeal, and argued at the trial court hearing on the matter, that his conduct was not willful, but rather that he merely forgot about his earlier injury and workers’ compensation claim because this prior, injury did not cause him much pain, did not cause him a significant loss of work, and did not diminish his ability to earn an income. Allen claims that the trial court abused its discretion in dismissing his lawsuit due to perceived discovery violations, while, on the other hand, Amtrak argues that under Miss. R. Civ. P. 37 and the court’s inherent power to control its own docket, the trial court did not abuse its discretion in granting the motion to dismiss and that Allen’s due process argument is procedurally barred because it was not raised in the trial court.

¶ 7. In addressing the issue of whether he willfully and in bad faith violated the discovery rules by not disclosing certain information, Allen does not argue that he actually disclosed all requested information to Amtrak, nor does he argue that his 1993 injury did not occur. In fact, Allen admits to the earlier injury and also to missing work and receiving worker’s compensation awards for the earlier injury. Allen also admits that he failed to disclose any information in his discovery responses pertaining to the earlier injury. However, Allen argues that the record does not establish that his omissions were willful. Instead, Allen asserts that he innocently forgot about the incident. Because the trial judge dismissed his case with prejudice based on findings of bad faith and willfulness, Allen argues essentially that the punishment did not fit the crime and that other measures were available to the trial court to deal with what it found to be discovery violations. Amtrak argues that the trial court did not abuse its discretion with regard to this issue because the testimony and discovery responses from Allen were patently false and misleading and the result of willfulness and bad faith.

¶ 8. This Court has adopted the Fifth Circuit’s four-part test for determining if a trial court, in dismissing a case with prejudice under Rule 37, has abused its discretion.

First, dismissal is authorized only when the failure to comply with the court’s order results from wilfulness or bad faith, and not from the inability to comply. Dismissal is proper only in situation (sic) where the deterrent value of Rule 37 cannot be substantially achieved by the use of less drastic sanctions. Another consideration is whether the other party’s preparation for trial was substantially prejudiced. Finally, dismissal may be inappropriate when neglect is plainly attributable to an attorney rather than a blameless client, or when a party’s simple negligence is grounded in confusion or sincere misunderstanding of the court’s orders.

Pierce, 688 So.2d at 1389 (quoting Batson v. Neal Spelce Assocs., 765 F.2d 511, 514 (5th Cir.1985) (internal citations omitted)). This Court found in Pierce that “the most severe sanctions provided by statute or rule must be available to a trial court in appropriate cases, not just to penalize those whose conduct may warrant such a sanction, but to deter those who might be tempted to engage in such conduct in the absence of a deterrent.” Id. (relying on National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976)).

¶ 9. In granting the motion to dismiss, the trial court in this case relied on the Batson factors adopted by this Court in Pierce and found that all four factors had been satisfied and that the omission was willful conduct which caused the defendant prejudice. We review this four-part finding today looking only for an abuse of discretion by the trial judge.

¶ 10. Each party’s version of the facts in this case naturally differs. Amtrak argues that the previous accident was significant and that Allen’s failure to disclose it was deceit. Allen argues that the previous accident was not major and that he simply forgot about it during discovery because it was so minor. The information Amtrak obtained after the close of discovery revealed that, as a result of the 1993 accident, Alien had suffered a similar injury in the exact same spinal location (at vertebrae L4-L5 and at the L5-S1 joint) where his injury giving rise to this suit occurred. Allen was working as a police officer at the time and was struck by a car while directing traffic. Amtrak also learned that Allen had filed a claim with, and received an award from, the Arkansas Workers’ Compensation Commission. Amtrak discovered medical records proving that, in 2000, Allen told his family physician about the 1993 incident. Amtrak pointed out that these medical records contradicted Allen’s claim that the incident was insignificant because Allen told a doctor he quit the police force as a result of the severity of the injury. Amtrak also argues that Allen is unlikely to have forgotten something as significant as this 1993 accident when he was able. to remember other seemingly smaller details about his work experience. Allen claimed in an affidavit that the incident was nothing more than a “minor traffic accident,” that he missed very little work, that any discomfort subsided within a few weeks, and that he “honestly forgot” about the accident during discovery because it was so insignificant. Allen also claimed that he did not recall filing for workers’ compensation benefits in 1993 and that he left the police force shortly after the accident. Allen points out that about five weeks after the 1993 accident, he was released by doctor who said he sustained no impairment. Allen’s counsel admitted it was difficult to explain Allen’s 2000 disclosure of the 1993 accident to his family physician. Allen’s attorney, however, characterized it as a credibility issue that should be preserved for the jury.

¶ 11. During discovery, Allen had multiple opportunities to report the 1993 accident to Amtrak, but never did. In interrogatories numbered 6, 8, 11, and 14, Amtrak asked Allen to disclose whether he had ever suffered a similar back injury, whether he had ever undergone similar back treatment during his lifetime, whether he had ever filed a claim or lawsuit against a former employer, and whether he had ever received workers’ compensation awards. In each of his answers to these interrogatories, Allen failed to disclose the 1993 incident. In request number 5 of the request for production of documents, Amtrak specifically-asked for all documents pertaining to medical treatment of Allen’s back that had ever occurred in his lifetime. Allen responded by attaching medical records which excluded any documentation of the 1993 incident. When directly asked during his deposition, Alen denied ever having filed a workers’ compensation claim, ever having been involved in a car.accident with the exception of an unrelated mid-1980s accident, and ever having received other medical treatment for his back.

¶ 12. Pierce involved a plaintiff suing for personal injury when a ceiling fan fell on her while she was in bed. 688 So.2d at 1387. The plaintiff in that case repeatedly denied that anyone was with her at the time of the injury, instead insisting that she was alone. Id. Her reason for lying was that she did not want her parents to know that she had a male companion at her apartment at the time of the accident. Id. at 1388. The trial court dismissed the case with prejudice, and this Court affirmed, after finding that “the trial court’s sanction against Pierce was warranted to protect the integrity of the judicial process due to Pierce’s abuse of the discovery process and presentation of false testimony.” Id. at 1387. We found Pierce’s conduct of willfully concealing the fact that another person was present at the time of the injury constituted bad faith. Id. at 1390. We also held that there was no requirement of substantial prejudice to the defense by the absence of evidence. Id. at 1391. Finding no abuse of discretion, this Court affirmed the trial court’s dismissal. Id. at 1392.

¶ 13. In Scoggins, we also affirmed a trial court’s dismissal under Rule 37, finding the plaintiff to have repeatedly misrepresented her medical history which coincidentally involved injury to the plaintiffs lumbar spine. 743 So.2d at 995. The trial court recognized its duty to impose the least severe sanction available and found no other sanction to be available that would accomplish the intended purpose in that case. Id. at 993. The plaintiff argued memory loss in an effort to explain away her failure to give completely accurate responses to discovery requests. Id. at 995. Relying on Pierce, this Court determined that the trial court did not abuse its discretion in finding that the plaintiffs failure to comply with discovery requests was willful and that the plaintiffs attempts to explain her misconduct were not credible or supported by substantial evidence in the record. Id. at 996. Therefore, this Court affirmed the dismissal by the trial court. Id.

¶ 14. In Salts v. Gulf Nat. Life Ins. Co., 872 So.2d 667 (Miss.2004), a plurality of this Court relied on Pierce and Scoggins finding that dismissal was warranted because of discovery violations. Equally divided, this Court affirmed the trial court’s dismissal of the case. Id. at 675. The plurality found a plaintiffs failure to comply with a court order to be willful conduct. Id. at 674. It further found that the defendants’ trial preparation was substantially prejudiced and there was no error in the trial court’s decision to dismiss the action under Rule 37. Id. at 674. “To hold otherwise would render ... the rule meaningless and one which we should simply judicially abrogate if it is not going to be enforced. A rule which is not enforced is no rule at all.” Id. Even the dissenting opinion in Salts, disagreeing with the holding on the particular facts in that case, acknowledged that the extreme sanction of dismissal with prejudice was appropriate in Pierce and Scoggins because of misrepresentation of fact and the presentation of false testimony. Id. at 675 (Dickinson, J., dissenting).

¶ 15. This Court has reversed a trial court’s dismissal of a case for discovery violations finding the dismissal to be an abuse of discretion. White v. White, 509 So.2d 205 (Miss.1987). In White, the trial judge made no determination of willfulness or bad faith and this Court was presented with no findings on the Pierce and Batson considerations. Id. at 208-09. Additionally, other sanctions were available because the discovery offense in that case was a failure to comply with discovery requests in a timely manner. Id. at 209. White illustrates when dismissal is inappropriate, but it is clearly factually distinguishable from the case at bar. Here, the trial judge made findings of bad faith and willfulness and did so according to the Bat-son/Pierce factors, and the sanctions were appropriate because of misrepresentation of fact and the presentation of false testimony, akin to our holdings in Pierce and Scoggins.

¶ 16. In Wood v. Biloxi Public School District, 757 So.2d 190, 191 (Miss.2000), we also reversed a trial court’s dismissal for discovery violations, finding that the case was distinguishable from Scoggins and Pierce, in that the lower court’s ruling was based upon “a single alleged untruthful response in an interrogatory.” In Wood, this Court determined that it was not established, as it was in today’s case, that the plaintiff knowingly made a false statement or that he submitted a pattern of false responses. Id. Going further, we found that, other, more appropriate sanctions should have been considered by the trial court because of the facts in that case. Id. at 191-92. Like White, Wood is not applicable to today’s facts and we clearly distinguish Wood today just as the plurality did in Salts, 872 So.2d at 673-74. The trial court in today’s case found that Allen knowingly made false statements when it determined his actions were the result of willfulness and bad faith. We are not faced today with a single untruthful response, but repeated opportunities to disclose the earlier accident and repeated failures to do so. Looking at what specific details of his life Allen was able to remember easily, coupled with the 2000 medical records proving Allen told his doctor about the accident, the trial judge found that a pattern most definitely existed. Without question, on today’s record the trial judge did not abuse his discretion in making his ruling.

¶ 17. Allen attempts to distinguish Pierce and Scoggins by pointing out that neither case is governed by the FELA, and by attempting to factually distinguish those cases. Allen argues that Pierce involved a plaintiff who knowingly and willfully perjured herself and that Scoggins involved plain and obvious evidence of bad faith, both being consequently unlike his case. In Scoggins, where the plaintiffs argument of memory loss was put forward as a defense, comparable to Allen’s defense of forgetfulness here, we agreed with the trial court’s finding that the plaintiff witness was not credible because she could remember details of other aspects of her life and only had claimed a loss of memory concerning the medical history she failed to disclose. 743 So.2d at 995. Further, we reasoned that an invasive and painful procedure involving the lumbar spine there, comparable to the lumbar injury here, would be difficult to easily forget. Id.

¶ 18. We find it to be unusual that Allen would have forgotten about a back injury which occurred in the same place on his spine eight years earlier, which resulted in his missing work, and for which he was awarded workers’ compensation benefits. Allen’s argument that an accident occurring eight years earlier was far enough away in time to have been easily forgotten weakens when we consider the undisputed fact that Allen told his family physician about the 1993 incident in 2000, only one year before the injury giving rise to this litigation, and seven years after the earlier injury occurred. Allen’s 2000 revelation to his family physician about the 1993 accident was documented in a medical report which Allen failed to produce in response to Amtrak’s discovery request. Assuming arguendo that Allen innocently forgot about his 1993 accident, this “innocent mistake” was compounded by his failure to produce this medical report in discovery. Allen also argues that the judge ignored certain rebuttal evidence, namely Allen’s own affidavit. This .one-page affidavit did nothing more than state Allen’s defense that he innocently forgot about the earlier injury. This affidavit, together with the information Amtrak obtained after discovery, constituted the evidence the trial judge had to review in making his ruling. We are not to sit in place of the trial judge in this case. We are only to review the judgment of the court below for an abuse of discretion. Reviewing the record before us, we find that the trial court did not abuse its discretion in finding that a Rule 37 dismissal here was appropriate pursuant to Pierce and Batson. The trial court found that Allen’s failure to disclose the 1993 incident resulted from willfulness or bad faith, and not from the inability to comply. Pierce, 688 So.2d at 1389. The trial court found that the deterrent value of Rule 37 could not be substantially achieved by the use of less drastic sanctions here and that dismissal was thus proper. Id. Additionally, Amtrak’s preparation for trial was substantially prejudiced, though substantial prejudice is not necessary under this test, and there fe no evidence to even suggest that there was any neglect plainly attributable to Allen’s attorney, or grounded in Allen’s confusion or sincere misunderstanding of the court’s orders. Id. See also Amiker v. Drugs For Less, Inc., 796 So.2d 942, 951 (Miss.2000); Wood ex rel. Wood v. Biloxi Pub. Sch. Dist., 757 So.2d 190, 193 (Miss.2000).

¶ 19. We afford the trial judge considerable, though not unfettered, discretion in cases such as the one before us today. In order to reverse the trial court today, this Court would have to hold a definite and firm conviction that the trial court committed a clear error of judgment and abuse of discretion in the conclusion it reached upon weighing each of the relevant factors set out in Pierce. This we cannot do. The trial court certainly weighed the relevant factors in reaching its conclusion and no evidence exists in the record to support a finding of a clear error of judgment or abuse of by the trial court. We thus find this issue to be without merit.

II. FELA

¶ 20. Allen’s second assignment of error is that the trial court should have allowed credibility determinations to be made by the jury inasmuch as FELA states a preference for the fact-finder to do so. Allen asserts that because no evidence existed in the record to prove willfulness, such as a signature on the workers’ compensation forms, the trial court’s determination was simply one of credibility. Allen’s position is that the trial court, in taking away the credibility determination from the jury, deprived him of his right to a jury trial under FELA, which encourages the protection of railroad workers through litigation. Allen argues that the trial judge had no evidence to support his determination that the actions were intentional or willful, but rather only inferred it against Allen. The debate that ensues between the two sides in this case raises the query of when a procedural rule is essentially substantive because of its effect. Allen also cites other authority, which we find to be marginally relevant today, for the proposition that the eviden-tiary threshold is quite low for a FELA case to proceed to a jury. This may be so, but this fact is simply not dispositive of the question before us today. The trial judge did not consider the evidence to make a substantive determination of whether sufficient evidence existed to present a jury question of causation, but rather the trial judge examined evidence of Allen’s discovery violations to make a procedural determination whether his pre-trial conduct was willful. Finally, Allen states that depriving FELA plaintiffs of the benefit of jury trials even in close or doubtful cases is to “take away a goodly portion of the relief ... Congress has afforded them” under the statute. Bailey v. Cent. Vt. Ry., 319 U.S. 350, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444 (1943). This is also no doubt true, but does not describe the case before us as we are not considering whether enough evidence was presented in a “close” case for a jury to consider it, as we would, for example, in reviewing a trial court’s grant of a directed verdict. Although the harsh reality is that dismissal will forever deprive Allen of the opportunity to seek relief for the 2001 accident which is the subject of today’s appeal, that is precisely the deterrent effect of Rule 37 sanctions.

¶ 21. Iu making its ruling, the trial court relied on the following holdings from Scoggins and Pierce: “ ‘A trial is a proceeding designed to be a search for the truth.’ When a party attempts to thwart such á search, the courts are obligated to ensure that such efforts are not only cut short, but that the penalty will be sufficiently severe to dissuade others from following suit.” Scoggins, 743 So.2d at 994-95 (quoting Sims v. ANR Freight System, Inc., 77 F.3d 846, 849 (5th Cir.1996)). “The power to dismiss is inherent in any court of law or equity, being a means necessary to orderly expedition of justice and the court’s control of its own docket.” Pierce, 688 So.2d at 1388 (citing Palmer v. Biloxi Reg’l Med. Ctr., 564 So.2d 1346, 1367 (Miss.1990)). Additionally, Rule 37 specifically allows for dismissal as a sanction in certain circumstances. Miss. R. Civ. P. 37. Conceding that FELA does govern this claim, Amtrak points out Allen’s failure to cite relevant authority for his propositions and argues that allowing the jury to decide issues pertaining to procedure, discovery, abuse, and pre-trial misconduct, would divest the trial court of its own inherent right to govern procedural matters. With the above discussion still in mind, we need not re-examine the sufficiency of the evidence of Allen’s discovery violations. Allen’s concerns under this second issue are not entirely different from his concerns under the first issue discussed above, thus our disposition here is the same. This Court has stated its concern with virtually allowing a plaintiff “to get away with lying under oath without a meaningful penalty,” when that plaintiff has willfully failed to comply with discovery requests. Pierce, 688 So.2d at 1391.

¶ 22. Returning briefly to the substantive/procedural discussion raised in the briefs, this Court has noted that when FELA cases are brought- in state court, federal law governs the substantive rights of the parties. Illinois Cent. R.R. v. Gandy, 750 So.2d 527, 534 (Miss.1999) (citing Southwestern Ry. v. Dickerson, 470 U.S. 409, 411, 105 S.Ct. 1347, 84 L.Ed.2d 303 (1985) (FELA actions in state courts are subject to state procedural rules)). The courts of this State may properly utilize the Mississippi procedural rules in hearing federal law claims, but look to the federal law at issue to adjudicate matters of substantive rights of the parties. King v. Grand Casinos of Miss., Inc.-Gulfport, 697 So.2d 439, 442 (Miss. 1997) (a maritime law claim). The trial judge in this case did nothing more than apply Mississippi procedural law to a dismissal under Rule 37. That Allen’s substantive rights were affected when his case was dismissed is without doubt, but such is the nature and purpose of sanctions for discovery violations and hindering the discovery of truth in a lawsuit. To do anything less would not effectively dissuade others from doing the same. Again, the trial court did not abuse its discretion in finding that a less harsh penalty would not achieve the same results. As we stated above, the trial judge in this case was not making a determination of Allen’s substantive rights under his claim, but rather a procedural determination of whether his pre-trial conduct was willful and warranted dismissal. As we have previously stated, “[o]ur trial judges are afforded considerable discretion in managing the pre-trial discovery process in their courts ...” Bowie v. Montfort Jones Mem’l Hosp., 861 So.2d 1037, 1042 (Miss.2003). This proper exercise of judicial discretion includes, in appropriate cases, the right to dismiss a case due to discovery violations. Id. at 1042-43. For these reasons, we find this issue is without- merit.

III. DUE PROCESS

¶23. Finally, Allen asserts that the trial court’s failure to allow him to testify on his own behalf at the hearing on the Rule 37 motion violated his due process rights. Allen characterizes the trial court’s action as a refusal to allow him to be heard, or a denial of an opportunity to testify in his own behalf, which equates to a violation of his due process rights. The record reveals the following colloquy between Allen’s counsel and the trial court:

I’m prepared to go forward with the argument. I’ve also brought Mr. Allen to the courtroom if Your Honor thinks that it might be worth it to have him on the stand to actually hear question and answer and to see for yourself Mr. Allen’s credibility.
BY THE COURT: The Court on this issue really will base its decision on what is already before the Court.

In reality, Allen’s counsel merely informed the trial court that Allen was present to testify if the court felt his live testimony would be helpful. The trial court did not find it necessary to hear from Allen in order to rule in the case. Once the trial court announced that it would not hear from Allen by way of sworn testimony from the witness stand, neither Allen nor his counsel raised a due process violation for the trial court to consider. Likewise, the order arid opinion from which this appeal was taken, as specified in the notice of appeal, did not address this issue. See M.R.A.P. 3(c). Failure to preserve this issue for appeal purposes renders this issue procedurally barred. Corey v. Skelton, 834 So.2d 681, 686 (Miss.2003); Barnes v. Singing River Hosp. Sys., 733 So.2d 199, 202 (Miss.1999); Educational Placement Servs. v. Wilson, 487 So.2d 1316, 1320 (Miss.1986). Procedural bar notwithstanding, we will nonetheless briefly discuss this issue on its merits.

¶ 24. Allen cites various authorities for the proposition that due process demands that Allen be afforded a hearing on the merits of his case. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982); Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958); Hammond Packing Co. v. Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530 (1909); McDaniel v. Ritter, 556 So.2d 303 (Miss.1989). However, Allen also cites the Tenth Circuit for the rule that, “[b]ecause a default judgment is such a harsh sanction, due process requires that ‘failure’ [to comply with court orders or to attend depositions and serve answers to interrogatories] is a sufficient ground only when it is the result of ‘willfulness, bad faith, or [some] fault of petitioner’ rather than inability to comply.” M.E.N. Co. v. Control Fluidics, Inc., 834 F.2d 869, 872 (10th Cir.1987) (quoting Nat’l Hockey League, 427 U.S. at 640, 96 S.Ct. 2778). Amtrak argues that the due process clauses under the Fifth and Fourteenth Amendments did not require the trial judge in this case to hear live testimony from Allen. We agree. As already discussed, the trial court did in fact make a finding of willfulness and also found that it was not an inability to comply which prevented Allen from complying with discovery requests, but rather an act of bad faith. Further, it is not clear from Allen’s argument what exactly it was that the trial court refused to, hear. There was no proffer that Allen’s live testimony was going to differ from, or add substantially to, his affidavit or his attorney’s argument on the motion to dismiss. As we have already concluded, Allen deprived himself of a hearing on the merits by his discovery responses in this case. Allowing him to proceed would have completely diluted the intended effect of Rule 37. All that due process requires in cases of dismissal under Rule 37 is that the trial court make a finding of willfulness or bad faith on the part of the party whose claims were adversely affected, which the trial court in today’s case properly did. See Societe Internationale, 357 U.S. at 207-08, 78 S.Ct. 1087. This issue is without merit.

CONCLUSION

¶ 25. The trial court in today’s case did not abuse its discretion in dismissing Craig Allen’s case pursuant to Miss. R. Civ. P. 37(b), based on its finding that Allen willfully violated the discovery rules- by repeatedly failing to disclose his 1993 back injury and claim during the discovery process. Therefore, we affirm the judgment of dismissal entered by the Circuit Court for the First Judicial District of Hinds County.

¶ 26. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P JJ., GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ AND EASLEY, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      . Rule 37(b) of the Federal Rules of Civil Procedure and Rule 37(b) of the Mississippi Rules of Civil Procedure are virtually identical.


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Maria PAGE, Appellant v. Sherry CRAWFORD a/k/a Sherrie Williamson, Appellee. Maria Page, Appellant v. Sherry Crawford, Appellant.
    Nos. 2004-CA-02237-COA, 2004-CA-00978-COA.
    Court of Appeals of Mississippi.
    Nov. 15, 2005.
    Rehearing Denied March 21, 2006.

      Ned McDonald, Laurel, Jason Lee Shelton, Tupelo, attorneys for appellant.
    Martha Bost Stegall, Tupelo, attorney for appellee.
   MYERS, P.J.,

for the Court.

¶ 1. This appeal is back before this court from the Circuit Court of Lee County concerning a determination of whether Maria Page showed good cause under M.R.C.P. 4(h) for failure to serve Sherry Crawford with process within 120 days of the filing her complaint.

STATEMENT OF FACTS

¶ 2. This appeal is before us for a second time concerning Maria Page’s failure to serve defendant Sherry Crawford with process within the 120 days required by M.R.C.P. 4(h) for injuries sustained in a motor vehicle accident. Our previous decision, Page v. Crawford, 883 So.2d 609 (Miss.App.2004), reversed and remanded the case to the circuit court for a determination of whether good cause could be shown for the dismissal. Following the remand, Crawford scheduled a hearing on her motion to dismiss and on Page’s motion for leave to serve process out of time for January 20, 2005. On November 4, 2004, the circuit court entered an order granting Crawford’s motion to dismiss. This motion was granted without an additional hearing on the motions. Page appeals this dismissal raising one error:

THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING DEFENDANT’S MOTION TO DISMISS UPON REMAND WITHOUT MAKING A DETERMINATION OF WHETHER GOOD CAUSE EXISTS.

STANDARD OF REVIEW

¶ 3. A determination of good cause is a discretionary ruling by the trial court and is entitled to deferential review of whether the trial court abused its discretion and whether there was substantial evidence supporting the determination. Webster v. Webster, 834 So.2d 26, 28 (¶ 5) (Miss.2002).

DISCUSSION

¶4. In this appeal Page requests that this Court, once again, remand this case to the Circuit Court of Lee County for a good cause hearing. We do not agree. Page, in her brief, points to no Mississippi authority that would require such a hearing. Rule 4(h) of the Mississippi Rules of Civil Procedure states:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

Nowhere in this rule is there a requirement that a hearing be held to determine whether good cause exists.

¶ 5. Motion practice is governed by Rule 78 of the Mississippi Rules of Civil Procedure which provides in pertinent part: “To expedite its business, the court may make provision by rule or order for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and opposition.” M.R.C.P. 78. This portion of the rule permits any court to expedite its business through the adoption of local rules. Local Rule 4(f) of the Circuit Courts of the First Circuit Court District deals with the notice and hearing requirements for motion practice. This rule states in pertinent part: “All motions shall be decided by the Court without a hearing or oral argument unless otherwise ordered by the Court on its own motion, or, in its discretion, upon written motion made by either counsel.” Local Rule 4(f). This rule clearly leaves to the discretion of the court the necessity for a hearing on all motions.

¶ 6. Prior to the first appeal in this case a hearing was held at which both parties submitted briefs and made oral arguments as to Page’s “Motion for Leave to Serve Process Out of Time” and Crawford’s “Motion to Dismiss.” In the circuit court’s order, following remand, he states that “there is no need for additional arguments or briefs since the parties’ respective motions have already been fully addressed by the parties through briefs and oral arguments, and there being no change in the underlying facts since this is [sic] court’s previous consideration of the parties’ motions .... ” The court went on to determine that Page had not shown good cause at this previous hearing and ordered Page’s “Motion for Leave” be denied and Crawford’s “Motion to Dismiss” be granted. The circuit court’s order to dismiss without a hearing was within its prerogative and it clearly states that no further hearing is necessary. We will defer to the trial court when making evidentiary rulings in motion practice.

¶ 7. Finding that the order entered by the Circuit Court of Lee County conforms to our earlier opinion in this case and that the circuit court judge did not abuse his discretion, we affirm.

¶ 8. 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, P.J., BRIDGES, IRVING, CHANDLER, GRIFFIS, AND ISHEE, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.


author: LEE, P.J.,

text:
    Billy Ray BRADLEY, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01260-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2005.
    Rehearing Denied April 11, 2006.

      James A. Williams, Brookhaven, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinehcliff, attorney for appellee.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. After working an eight-hour shift on September 4, 2003, Detective Denise McMullen of the Meridian Police Department attempted to serve a felony warrant on Billy Ray Bradley. She received an anonymous tip as to Bradley’s location but received a subsequent tip that Bradley was near the North Frontage Road in Meridian. McMullen spotted Bradley, carrying a tan suitcase, along with his girlfriend, Leslie Grady, on the frontage road and contacted the backup officers. Officers William Brunelle and Ron Brooks arrived on the scene and instructed Bradley to drop his suitcase and place his hands on the police car. Detective McMullen then approached and advised Bradley that he was under arrest. Detective McMullen then read Bradley his Miranda warnings, and Bradley was escorted to the station in a patrol car. The suitcase and Grady were also taken to the station.

¶ 2. While inventorying Bradley’s possessions at the station, the police found .22 caliber bullets in Bradley’s pocket. Inside the suitcase Officer Brunelle found, among other things, a VCR with a tape partially ejected. Officer Brunelle testified that the VCR rattled, as though it were broken. Officer Brunelle asked Bradley if the VCR worked, and as Officer Brunelle removed the tape, he discovered a pistol wedged inside the VCR. Bradley initially denied any knowledge of the gun, but Bradley later admitted that he was holding the gun for a friend.

¶ 3. On November 19, 2003, Bradley was indicted as an habitual offender pursuant to Mississippi Code Annotated Section-99-19-83 (Rev.2000), on the charge of possession of a firearm by a convicted felon in violation of Mississippi Code Annotated Section 97-37-5 (Rev.2000). On the Friday prior to trial, Bradley’s attorney filed a motion seeking to suppress any and all tangible evidence, statements and information acquired by the State from Bradley. The trial court denied the motion as untimely. Bradley was convicted and received a sentence of life in prison to be served in the custody of the Mississippi Department of Corrections (MDOC). It is from this conviction that Bradley now appeals, arguing five points- of error.

¶ 4. Finding no error, we affirm the judgment of the trial court.

DISCUSSION OF THE ISSUES

I. WERE THE GUN AND BRADLEY’S STATEMENTS IMPROPERLY ADMITTED INTO EVIDENCE?

¶ 5. In his' first assignment of error Bradley addresses two issues. Bradley contends that the search of his suitcase was in violation of the Fourth Amendment and that he was entitled to a second Miranda warning once the officers confronted him with the gun they discovered in his suitcase. Bradley argues that both the gun and the confession should have been suppressed.

A. The Gun and Bradley’s Statement

¶ 6. Bradley argues that the briefcase was searched in violation of his Fourth Amendment rights. Bradley argues that because the gun resulted from the illegal search, it should have been suppressed, along with Bradley’s confession.

¶ 7. The Fourth Amendment to the United States Constitution and Article 3, Section 23 of the Mississippi Constitution of 1890 protect against warrantless searches and seizures of personal property. There exist certain exceptions to the warrant requirement, including a consensual search, a search incident to arrest, an inventory search, a search under exigent circumstances if probable cause exists, and a search of a vehicle when making a lawful contemporaneous arrest. Graves v. State, 708 So.2d 858, 862-63 (¶22) (Miss.1997); see also Evans v. State, 823 So.2d 617, 619 (¶ 14) (Miss.Ct.App.2002).

¶ 8. Bradley’s suitcase was searched as part of a police inventory — a matter of police procedure which allows the police to properly account for and preserve items belonging to the arrestee. See Robinson v. State, 418 So.2d 749, 752 (Miss.1982). Items seized pursuant to this routine police procedure are admissible. Id. Officer Brunelle testified that they discovered the gun when they inventoried the suitcase. Officer Brunelle also testified that they conducted the inventory search in Bradley’s presence as a matter of police procedure. We find that the evidence secured from the suitcase was the result of an inventory search; thus, no warrant was necessary.

¶ 9. The State also argues that Bradley gave consent for the police to search his suitcase, for prior to opening the suitcase Bradley told the officers that they could open the luggage to retrieve Grady’s medication. However, for purposes of our review, it is sufficient for us to. end our inquiry with the inventory search. Bradley’s suitcase was opened and inventoried as part of the procedure used by the Meridian Police Department. The gun was found inside the VCR, hidden behind a protruding tape. We find no error in admitting the gun into evidence. The gun was the result of a valid search; therefore, the confession, which stemmed from the fruit of the search, would not need to be suppressed based upon Brady’s Fourth Amendment claim. This argument lacks merit.

B. Miranda Discussion

¶ 10. Bradley contends that he was given insufficient Miranda warnings, and that once the police discovered the gun he was entitled to an additional Miranda warning. Bradley does not cite authority directly in favor of this proposition. Bradley concedes that Detective McMullen testified that she read Bradley his rights when he was being arrested, and Bradley does not contest that he actually received his Miranda warnings. Instead, Bradley attacks the voluntariness of his statements to the police. We recall that “[w]hen an accused makes an in-custody inculpatory statement without the advice or presence of counsel, even though warnings and advice regarding his privilege against self-incrimination have been fully and fairly given, the State shoulders a heavy burden to show a knowing and intelligent waiver.” Neal v. State, 451 So.2d 743, 753 (Miss.1984).

¶ 11. Review of this issue is problematic at best. Although Bradley’s attorney filed a generic motion to suppress prior to trial, the trial court denied the motion finding that it was untimely filed. Thus, at the hearing on the motion to suppress, the trial court never made a finding as to whether Bradley knowingly and intelligently waived his right to silence. The failure to make such findings was similarly addressed in Gavin v. State, 473 So.2d 952 (Miss.1985). In Gavin, the defendant challenged the voluntariness of his videotaped confession. After the hearing on the motion to suppress, the trial court’s limited ruling was simply, “The motion [to suppress] is overruled.” Id. at 955. Our supreme court affirmed-the admission of the confession despite the trial court’s failure to make specific findings of fact that the confession was voluntary. The supreme court opined:

Though the trial judge did not supply us with the findings of fact we ordinarily must have to pass upon such a question, the facts in this case are sufficiently uncontradicted that we can say with confidence that the inculpatory statement was obtained consistent with [the defén-dant’s] constitutional rights and that the trial judge correctly overruled [the defendant’s] motion to suppress:

Id.

¶ 12. The record does not support Bradley’s contention that his statements were involuntary. Bradley, having been twice previously incarcerated, was familiar with the processes and procedures of an arrest. There is no indication that Bradley invoked either his right to silence or his right to an attorney, and there is no indication that Bradley was coerced or otherwise threatened to give incriminating statements. Furthermore, Detective McMullen testified, and Bradley concedes, that she administered Bradley’s Miranda warning.

¶ 13. This issue lacks merit.

II. DID THE TRIAL COURT ERR IN ADMITTING CERTAIN EVIDENCE?

¶ 14. Bradley next argues that the trial court erred in allowing certain testimony. Bradley cites the following items as error: that during the State’s opening statement the State commented that Detective McMullen had an active felony warrant for Bradley; that during voir dire a juror stated that she knew Bradley’s girlfriend through her work at the juvenile detention center; that during voir dire the State commented that Bradley had an outstanding arrest warrant against him; that Detective McMullen testified that at the time she arrested Bradley she was arresting him on outstanding felony warrants and not for his possession of a weapon; that the contents of the suitcase including a porn tape were introduced into evidence; that Detective McMullen testified that Bradley told her the name of the tape in the VCR; that Detective McMullen was a detective who specializes in sex crimes and juvenile cases; that Detective McMullen recognized Bradley from his pictures; that Detective McMullen testified that Bradley had been arrested for burglary and larceny in 1980; and that Bradley had been arrested in 1995 on a charge of attempted kidnaping.

¶ 15. Of the above contentions, Bradley’s trial counsel only objected to two of them: namely Detective McMullen’s testimony about Bradley’s arrests and her testimony regarding the videotape. Bradley argues that although he did not object to the other testimony, the admission of such testimony constitutes plain error, and he should be allowed to present his arguments on appeal.

A. Evidence of Bradley’s Prior Arrests

¶ 16. Evidence of past crimes not resulting in a conviction is generally inadmissible. Sanders v. State, 586 So.2d 792, 797 (Miss.1991). Where evidence of past crimes has been introduced, a declaration of a mistrial is proper unless “the inflammatory material had no harmful effect on the jury.” Id., quoting Shoemaker v. State, 502 So.2d 1193, 1195 (Miss.1987). Furthermore, where a trial judge sustains an objection to testimony interposed by the defense in a criminal case and instructs the jury to disregard it, the remedial acts of the court are usually deemed sufficient to remove any prejudicial effect from the minds of jurors. Vickery v. State, 535 So.2d 1371, 1380 (Miss.1988). While the testimony regarding Bradley’s prior arrest for kidnaping was improper, the trial judge sustained the objection and instructed the jury to disregard the testimony. Furthermore, prior to deliberations the trial judge specifically instructed the jury, “you are to disregard all evidence which was excluded by the court from consideration during the course of the trial.” The jury is presumed to follow the instructions of the judge. Id. This argument is without merit.

B. The Videotape

¶ 17. We next consider testimony regarding the videotape discovered in the VCR contained in the suitcase Bradley was carrying. The relevant excerpt of Detective McMullen’s testimony is reproduced below.

Q. Ok. So he admitted that he had knowledge of [the gun’s] presence and that he was in possession of it?
A. Yes, sir.
Q. The — now, when you were — during this period of time when you were— you’re asking him some questions, I assume; is that right? During this period of time when the — the bullets, I know you said that we asked him, Do you have a gun; and he said, No. This YCR is found, the gun is found inside, and I assume you asked him something specifically about this weapon, the gun that was in the VCR; is that right?
A. Well, first I asked him about a tape.
Q. About a tape?
A. About a tape that was in the VCR.
Q. Oh, okay.
A. I asked him what the name of the porn tape he was watching that was in the VCR, what the name of it was.
BY MR. JORDAN: Your Honor, we’re going to object to that as speculation, what he might have been doing prior to her arresting him. Pure speculation.
BY THE COURT: Overruled
Q. You asked him — you asked him if he knew the name of the tape that was in it?
A. Yes, sir.
Q. Did he tell you the name?
A. Yes, sir.
Q. Was it accurate?
A. To the best of my knowledge, yes, sir.

¶ 18. The standard of review for admission or exclusion of evidence is abuse of discretion. Stallworth v. State, 797 So.2d 905, 908 (¶ 8) (Miss.2001). Bradley does not make any specific argument about the admission of this testimony, and we find no abuse of discretion in allowing it.

C. Bradley’s Remaining Contentions

¶ 19. Regarding Bradley’s remaining complaints, it is well-settled law that counsel must make a contemporaneous objection to objectionable testimony so that the trial court may correct any error by instructing the jury. Alford v. State, 760 So.2d 48, 51 (¶ 10). Failure to object waives the issue on appeal. Id. at (¶ 18).

¶ 20. We apply this rationale to Bradley’s grievance with a comment made by juror number six during voir dire. We note that Bradley is not appealing the juror’s presence on the jury; instead Bradley argues'the impropriety of the following dialogue which ensued when the State asked if any of the venire knew Grady.

A. I work at the Lauderdale County Juvenile Detention Center.
Q. Oh, okay. So you know her through your work.
A. Right.
Q. Is there anything about that knowledge that would either — I mean, knowing that she was with him would either adversely affect his side or adversely affect the side of the people of Lauderdale County?
A. No.

¶ 21. In Hull v. State, 687 So.2d 708, 720 (Miss.1996), defense counsel failed to make a contemporaneous objection to statements made by the trial judge during voir dire. Our supreme court found that the failure to make a contemporaneous objection barred review of the comment. Id. at 720. Likewise, our review of this comment is also barred.

¶ 22. The one item which Bradley directly addresses is the testimony regarding his two prior felony convictions. Bradley argues that it was error to allow evidence of both of his prior felonies to establish his status as a felon. This Court reviewed a similar argument in Evans v. State, 802 So.2d 187 (Miss.Ct.App.2001). In Evans, the defendant was also charged with violating Mississippi Code Annotated Section 97-37-5 (Rev.2000). As part of its case the State put forth evidence that Evans had prior convictions for grand larceny and attempted rape. On appeal, Evans argued that this was error. Finding no error, this Court opined, “[a]s the statute does not limit the number of prior convictions the prosecution may prove and the methods it may utilize to prove them, this issue is without merit.” Id. at 140 (¶ 9). Despite Bradley’s urging to the contrary, we agree with our holding in Evans. Section 97-37-5 does not limit the State to proving that Bradley had only been convicted of one prior felony. As such, this contention lacks merit.

123. We find no abuse of discretion in allowing this testimony. Issue II lacks merit.

III. DID THE DEFENDANT RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL?

¶ 24. Regarding a claim for ineffective assistance of counsel, our standard of review is well-settled: the defendant must prove, under the totality of the circumstances, that (1) his attorney’s performance was deficient and (2) the deficiency deprived the defendant of a fair trial. Hiter v. State, 660 So.2d 961, 965 (Miss. 1995). This review is highly deferential to the attorney, with a strong presumption that thé attorney’s conduct fell within the wide range of reasonable professional assistance. Id. at 965. To rebut this presumption Bradley must show “but for” the deficiency a different result would have occurred. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 25. Bradley argues that his trial counsel made errors in five specific areas: (1) failing to file a motion to suppress the gun and his admissions concerning it; (2) allowing leading questions during Officer Brunelle’s testimony and Detective McMullen’s testimony; (3) failing to make an opening statement; (4) failing to preserve Bradley’s argument that Mississippi Code Annotated Section 97-37-5 is unconstitutional; and (5) failing to pursue his certificates of rehabilitation and failing to verify that Bradley was incarcerated for over a year by checking bed registers.

¶ 26. We dispense with Bradley’s last argument first. Bradley was convicted of violating Mississippi Code Annotated Section 97-37-5, which provides in pertinent part as follows:

(1) It shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm ... unless such person has received a pardon for such felony, has received a relief from disability pursuant to Section 925(c) of Title 18 of the U.S.Code, or has received a certificate of rehabilitation pursuant to subsection (3) of this section.

As a convicted felon, Bradley could carry a weapon if he met one of the three exceptions enumerated in the statute. There is no evidence in the record to support Bradley’s contention that he was the recipient of a certificate of rehabilitation, thereby allowing him to carry a firearm as a convicted felon.

¶ 27. Bradley also argues that an investigation of the bed registers of the MDOC would prove that he did not serve a year in MDOC custody as a result of his 1980 burglary conviction. This argument, like his purported certificates of rehabilitation, is not supported by the record. These allegations against his attorney are unsupported by evidence, affidavits, or witnesses, and, therefore, are insufficient to sustain his claim for ineffective assistance of counsel. Harris v. State, 822 So.2d 1129, 1132 (¶ 8) (Miss.Ct.App.2002).

¶ 28. Our supreme court addressed Bradley’s argument regarding the constitutionality of Section 97-87-5 in James v. State, 731 So.2d 1135, 1136-37 (¶¶4-9) (Miss.1999). Upholding the restriction as a necessary exercise of the State’s police power, the supreme court opined, “[i]n limiting the possession of firearms by those persons who have been shown to present a threat to public safety, peace and order, the state is reasonably exercising its power to protect in the interest of the public.” Id. at 1137 (¶ 9). Bradley’s attempted constitutional attack on this restriction lacks merit, and Bradley has failed to show that his attorney prejudiced him in not pursuing this particular argument.

¶ 29. We next address Bradley’s contentions regarding his attorney’s trial performance. Failure to give an opening statement is not per se ineffective assistance of counsel. Branch v. State, 882 So.2d 36, 55 (¶ 42) (Miss.2004). Furthermore, Bradley has not shown that he was prejudiced by his attorney’s failure to object to leading questions during the State’s case.

¶ 30. Regarding Bradley’s argument addressing his attorney’s failure to timely file a motion to suppress, Bradley again fails to meet his burden under Strickland. Bradley must show that but for his attorney’s deficiency, the outcome of his case would have been different. As discussed in Section I of this opinion, the suitcase and its contents, along with Bradley’s confession, were properly admitted. Bradley has failed to show that had the motion been timely filed the outcome of his case would have been different. Aside from making generalized complaints about his counsel’s performance, Bradley has failed to show that he was prejudiced by the alleged deficiencies.

IV. DID THE TRIAL COURT ERR IN DENYING THE DEFENDANT’S MOTION FOR A NEW TRIAL?

¶ 31. Bradley next attacks the sufficiency of the evidence supporting his conviction, but he also argues that he is entitled to a new trial. Because the supreme court has made a distinction between the review of a denial of a motion for judgment notwithstanding the verdict based on the legal sufficiency of the evidence and review of a motion for new trial based on the weight of the evidence, we address each argument separately. See, e.g., Stewart v. State, 909 So.2d 52, 56 (¶ 14) (Miss.2005).

A. Sufficiency of the Evidence

¶ 32. A motion for a JNOV challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). “[T]his Court properly reviews the ruling on the last occasion the challenge was made in the trial court.” Id.

¶ 33. Bradley was arrested carrying a suitcase containing a VCR, which surreptitiously contained a gun. Bradley was also carrying bullets in his pocket at the time of his arrest, and Bradley admitted that he was in possession of the gun. The State produced evidence that Bradley had two prior felony convictions. Having received neither a pardon, nor a certificate of rehabilitation, nor relief due to disability, Bradley was convicted of possessing a firearm as a convicted felon. The evidence shows that elements of Section 97-37-5 were met. This issue is without merit.

B. Motion for a New Trial

¶ 34. “This Court will order a new trial only when it is convinced that the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Eakes v. State, 665 So.2d 852, 872 (Miss.1995). A motion for a new trial is addressed to the trial court’s discretion, and the motion should only be granted in “exceptional cases in which the evidence preponderates heavily against the verdict.” Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000).

¶ 35. We find no abuse of discretion in denying Bradley’s motion for a new trial. The State put forth ample evidence that Bradley was in possession of the gun. Furthermore, Bradley admitted to the police officers that he was keeping the gun for a friend. We find no evidence which would render this verdict an unconscionable injustice; thus, Issue IV is without merit.

V. WAS THE DEFENDANT’S SENTENCE SUPPORTED BY THE EVIDENCE?

¶ 36. As his final point of error, Bradley argues that his sentence was improper because he was actually ineligible to receive a life sentence. Bradley was sentenced under Mississippi Code Annotated Section 99-19-83 (Rev.2000), which provides that any person who has been convicted of a felony who has twice previously been convicted of any felony and sentenced to and served a term of one year or more shall be sentenced to life imprisonment if one of the previous felonies was a crime of violence.

¶ 37. At Bradley’s sentencing hearing, the State put forth evidence that Bradley was incarcerated for burglary from September 10, 1980, until October 14, 1981. The State also produced evidence that Bradley served time for aggravated assault from June 4, 1997, until December 3, 2000. Bradley’s argument that he was ineligible is incorrect. The record reflects that prior to the conviction sub judice, Bradley was convicted of two felonies, one of which was aggravated assault. The record also reflects that Bradley was sentenced to serve more than one year for each felony, and that Bradley served more than one year for each felony. This argument lacks merit.

¶ 38. Additionally, the record reflects that Bradley lodged no objection to the evidence presented by the State at sentencing. A contemporaneous objection is necessary to preserve this issue for appeal. Clay v. State, 881 So.2d 354, 358 (¶ 15) (Miss.Ct.App.2004). Issue V is without merit.

¶ 39. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY OF CONVICTION OF POSSESSION OF A FIREARM BY A FELON AND SENTENCE OF LIFE AS AN HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUD-ERDALE COUNTY.

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


text:
    Benny W. COLVILLE, Appellant v. Renee P. DAVIDSON, Appellee.
    No. 2004-CA-02246-COA.
    Court of Appeals of Mississippi.
    Jan. 3, 2006.
    Rehearing Denied April 11, 2006.

      John W. Christopher, attorney for appellant.
    Dawn Davis Carson, Robert Lewis Moore, attorneys for appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. This case comes from the Circuit Court of DeSoto County dealing with the damages resulting from a rear-end collision on November 3, 1999. There was no question as to liability; the only triable question was to the amount of damages. The jury returned a damages award of $1,500. Colville filed a motion for additur or new trial, which was denied by the trial court. From this denial, Colville appeals raising two issues:

I. THE VERDICT OF THE JURY WAS GROSSLY INADEQUATE AND WAS THE RESULT OF BIAS, PASSION AND PREJUDICE OF THE JURY.
II. THE LOWER COURT COMMITTED ERROR AND ABUSED ITS DISCRETION IN DENYING COL-VILLE’S MOTION FOR AN ADDI-TUR OR IN THE ALTERNATIVE FOR A NEW TRIAL ON DAMAGES.

¶ 2. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 3. On the morning of November 3, 1999, while traveling to work in his Chevrolet pickup, Benny W. Colville was accidentally struck from behind by Renee P. Davidson, resulting in a rear end collision. From the time of the accident until June 2002, Colville worked as a glazier which required heavy lifting and manual labor.

¶ 4. Following the accident, Colville was transported by ambulance to DeSoto Baptist Medical Center when he complained of pain between his shoulder blades, down his back and in his neck. At the hospital emergency room Colville was examined by emergency room physicians, given muscle relaxants and pain medication, and released within one and one-half to two hours following the accident. Colville did not attend work the day of the accident, but did attend the following day.

¶ 5. Colville did not seek further medical treatment until December 27, 1999, when he saw Dr. Walt Carnahan for treatment of a head cold. While undergoing examination Colville mentioned to Dr. Carnahan that he had been involved in an auto accident in November. Dr. Carnahan preformed an examination to evaluate Col-ville’s neck and found his neck to be supple and with full range of motion. Dr. Carna^-han did not prescribe any medications, but did place Colville on a spinalator which applied heat and gentle massage to the spine and muscles of the neck and back. Dr. Carnahan also prescribed physical therapy, but Colville was non-compliant. This treatment continued for a period of approximately two years. During this time period Colville was also treated for two work-related injuries, a pulled groin muscle and an inguinal hernia.

¶ 6. On September 28, 2001, Colville was referred to Dr. Ashley Park at the Campbell Orthopedic Clinic due to his continued complaint of shoulder blade pain. Dr. Park found no neurological injury. Dr. Park ordered an MRI which came back normal. Dr. Park prescribed anti-inflammatory medications, muscle relaxants, physical therapy and an epidural injection into the spine in an effort to relieve Col-ville’s pain. Dr. Park treated Colville from September 28, 2001, until May 2002. Dr. Park found that Colville’s range of shoulder motion decreased and signs of shoulder impingement increased between September and May. A final diagnosis was that Colville had a rotator cuff injury. Dr. Park testified that Colville’s work could be the cause of his pain. In June of 2002 Colville was given a new job that no longer required manual labor and his pain ceased.

¶ 7. A trial was held in the DeSoto County Circuit Court where Davidson admitted “some act of simple negligence” and the only issue before the jury was the determination of damages. Colville testified at trial while Drs. Carnahan and Park testified by video deposition. Colville also introduced evidence that over the approximately two and one-half years he had paid $14,082.47 in medical expenses and testified that he had lost $2,674.35 in wages. Davidson did not put on any witnesses. Following jury deliberations a verdict was returned awarding damages in the amount of $1,500. Colville filed a motion for an additur or, in the alternative, a new trial on damages that was denied by the trial court. This appeal followed, raising the following two issues that will be determined together as they intertwined.

I. THE VERDICT OF THE JURY WAS GROSSLY INADEQUATE AND WAS THE RESULT OF BIAS, PASSION AND PREJUDICE OF THE JURY.

II. THE LOWER COURT COMMITTED ERROR AND ABUSED ITS DISCRETION IN DENYING COL-VILLE’S MOTION FOR AN ADDI-TUR OR IN THE ALTERNATIVE FOR A NEW TRIAL ON DAMAGES.

STANDARD OF REVIEW

¶ 8. When reviewing the trial court’s decision to deny a motion for an additur, we are limited to an abuse of discretion standard. Burge v. Spiers, 856 So.2d 577, 579(¶ 6) (Miss.Ct.App.2003). The burden of proving damages is on the party who seeks the additur. Gaines v. K-Mart Corp., 860 So.2d 1214, 1220 (¶21) (Miss.2003). The evidence must be reviewed in a light most favorable tó the party against the additur and must give that party the benefit of all favorable inferences drawn therefrom. McClatchy Planting Co. v. Harris, 807 So.2d 1266, 1270 (¶ 16) (Miss.Ct.App.2001). An additur should be granted with great caution because it signifies “a judicial incursion into the traditional habitat of the jury.” Burge, 856 So.2d at 579-80(¶ 6) (citing Gibbs v. Banks, 527 So.2d 658, 659 (Miss.1988)). A jury award will not be set aside unless “so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous.” Rodgers v. Pascagoula Pub. Sch. Dist. 611 So.2d 942, 945 (Miss. 1992).

DISCUSSION

¶ 9. Colville argues that- the trial court abused its discretion by denying his post trial motion for additur based on the jury’s bias, passion and prejudice and the damages were inadequate due to the overwhelming weight of the evidence. The trial judge is given the authority to grant an additur by Mississippi Code Annotated § 11-1-55 (Rev.2002), which provides:

The supreme court or any other court of record in a case in which money damages were awarded may overrule a motion for new trial or affirm on direct or cross appeal, upon condition of an addi-tur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence, ...

¶ 10. In the case at bar, Davidson admits that she was negligent in hitting Col-ville in the rear end collision. The issue at trial was the amount of damages caused by Davidson to Colville. The jury was given the opportunity to hear the testimony of Colville, Dr. Carnahan and Dr. Park to determine the injuries sustained by Col-ville in the collision and. award damages to compensate him for those damages.

¶ 11. The testimony at trial was that Colville was examined following the accident and was not found to have any skeletal injuries. He was given pain medication, muscle relaxants and missed work the day of the accident. He returned to work the following day and did not complain of any further pain until visiting Dr. Carnahan for a cold two months following the accident. Dr. Carnahan testified that he treated Colville with manipulative therapy for over two- years and did not prescribe any medications other than over-the-eounter pain medicine. Additionally, Dr. Carnahan prescribed physical therapy that Colville was non-compliant with. Further testimony indicated that Colville suffered two work-related injuries following the accident, a groin pull and a hernia.

¶ 12. Dr. Carnahan referred Colville to Dr. Park after two years. Dr. Park testified that there was no neurological or skeletal damage and treated Colville with anti-inflammatory, pain and muscle relaxant medications. Dr. Park testified that the pain experienced by Colville could be either related to the accident or to Col-ville’s work. The jury also heard testimony from Dr. Park that during the period in which he treated Colville it was discovered that Colville had sustained a rotator cuff injury that could have been causing the shoulder pain. Dr. Park testified that the injury could have been caused by the accident, but is was unlikely.

¶ 13. The jury also heard Colville testify that in June of 2002 he changed positions in his company from manual labor to a desk job as an estimator. After the job change Colville testified that his pain began to stop.

¶ 14. It is the jury who determines the weight of the testimony and the credibility of the witnesses at trial and it is the primary province of the jury to determine the amount of damages to award. Burge, 856 So.2d at 580(¶ 9). The jury was given testimony that the injuries experienced by Colville were the result of the rear-end collision and Davidson elicited testimony from the witnesses that the injuries could be work related and that Colville was non-compliant with a physical therapy treatment prescribed. After hearing this testimony the jury awarded Colville $1500. The day of the accident Colville incurred medical expenses in the amount of $860.43 which consisted of $212 for the ambulance, $558.43 for the emergency room and $90 for radiological services. The difference of $640.57 can be attributed to pain and suffering.

¶ 15. In evaluating the denial of the motion for additur, we determine if the trial court abused its discretion. Burge, 856 So.2d at 579. In his order denying the motion for additur or in the alterative a new trial the judge stated:

The Court, having reviewed the Motion, Memoranda, Response and Reply, having heard the statement and argument of counsel, and having conducted independent research into the law, finds that there was sufficient evidence to support the jury’s verdict and that the Motion is otherwise not well taken....

¶ 16. This evidences that the trial court took the time to evaluate the law, the evidence presented and the jury’s verdict in the determination of the denial. There was no abuse of discretion.

CONCLUSION

¶ 17. Finding that there is no evidence of bias, prejudice or passion in the jury’s verdict, that there was evidence presented to support the award of $1500, and that the trial court did not abuse its discretion, we affirm the ruling by the Circuit Court of DeSoto County.

¶ 18. THE JUDGEMENT OF THE DESOTO COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: GRIFFIS, J.,

text:
    Darrell McBRIDE, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00140-COA.
    Court of Appeals of Mississippi.
    July 25, 2006.

      Edmund J. Phillips, Jr., attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. In the Circuit Court of Leake County, Darrell McBride was convicted of manslaughter and sentenced to serve eighteen years in the custody of the Mississippi Department of Corrections. On September 28, 2004, his attorney filed a brief with this Court arguing the appeal was without merit, and the attorney complied with the requirements of Turner v. State, 818 So.2d 1186, 1189(¶ 11) (Miss.2001). Pursuant to Lindsey v. State, 2003-KA-00331-SCT, — So.2d -, 2005 WL 613396 (Miss. Mar. 17, 2005), we ordered supplemental briefing on the trial court’s denial of the motion to suppress the confession. McBride raised two different issues in his supplemental brief: (1) whether the prosecution improperly asked the jury to pledge a verdict during voir dire and (2) whether the State failed to establish venue. We find no error and affirm.

FACTS

¶ 2. Saturday, July 13, 2003, about 4:00 a.m., Latricia Wilson and McBride met up at a home in Attala County, after having both been to a nightclub in Durant. Wilson and McBride left to go to a casino in Philadelphia, Mississippi. They never made it. McBride shot Wilson in the head on or near the Lobutcha Creek Bridge, near the Leake County-Attala County line. McBride placed her body in the trunk of his car, drove northward, and left her body in Attala County.

¶ 3. Wilson’s purse was discovered bordering the creek by fishermen later that day. The fishermen, who were from Atta-la County, contacted the Attala County Sheriff, who in turn contacted the Leake County Sheriff. Both sheriffs offices responded to the scene. Wilson’s identification card was found in her purse. Blood, hair extensions and sandals were found on the bridge.

¶ 4. Sunday, July 14, Leake and Attala County officers brought McBride in for questioning. He was read his Miranda rights. He gave an oral confession, which was not recorded in any manner. The content of the confession is in dispute.

¶ 5. McBride testified that he confessed that he accidentally shot Wilson. At trial, he testified that they had just had sex in his car on the Lobutcha Creek Bridge, and were dressing, when he realized that a gun was in his trunk. McBride exited the vehicle to get rid of the gun, before they went to the casino. Wilson, still dressing, followed McBride. McBride said he shook the gun, attempting to remove its clip, and the gun discharged. Wilson was bending down to put her shoes on, when the gun went off, and the bullet struck her in the head. McBride maintained that he did not know that Wilson had been shot, and he never intended to kill Wilson. He threw the gun over the bridge, because he did not want to see it anymore. He placed her in the trunk of his car, left her body in Attala County, and promised her he was bringing someone to help her. He said he changed his mind, though, because no one would believe him.

¶ 6. However, the Staté’s version of the confession was that McBride admitted to intentionally killing Wilson. Leake County Deputy Mark Wilcher testified that McBride told him that he lost his temper and shot Wilson. Specifically, Wilcher testified that McBride stated that Wilson had been disrespectful about the recent murder of Andre Porter, McBride’s cousin, and her attitude angered him. After shooting her, he threw the gun and her purse over the bridge. He placed her in the trunk of his car and left her body in Attala County. Attala County Sheriff William Lee and Mississippi Bureau of Investigations Agent Randy Johnson also testified regarding McBride’s confession. All three of'the officers testified that McBride never referred to the incident ás an accident.

¶ 7. McBride and his mother testified they did not find out Porter was killed until after Wilson was killed. McBride moved to have the confession suppressed on the basis that the two versions were contradictory. The judge found the confession had been voluntarily given, and allowed both sides’ versions of the confession into evidence.

¶ 8. McBride was indicted for murder, but the jury found him guilty of the lesser offense of manslaughter.

ANALYSIS

I. Was venue established?

¶ 9. In his supplemental brief, McBride contends that venue was never established in Leake County. The State argues the crime was proven to occur in Leake County, and therefore venue was properly established.

¶ 10. “In criminal cases, venue is jurisdictional, must be proved, and may be raised for the first time on appeal.” Hensley v. State, 912 So.2d 1083, 1086(¶ 12) (Miss.Ct.App.2005). The State bears the burden of proving venue beyond a reasonable doubt. Hill v. State, 797 So.2d 914, 916(¶ 10) (Miss.2001). Venue may be proven by direct and circumstantial evidence. Hensley, 912 So.2d at 1086(¶ 12). Where there is sufficient evidence to lead a reasonable trier of fact to conclude that part or all of the crime occurred in the county where the case is being tried, then evidence of venue is sufficient. Hill, 797 So.2d at 916(¶ 12).

¶ 11. Venue is proper in the county where the crime was committed, unless otherwise provided by law. Miss.Code Ann. § 99-11-3(1) (Supp.2005). “Where the mortal stroke or other cause of death occurs ... in one county, and the death occurs in another county, the offender may be indicted and tried in either county....” Miss.Code Ann. § 99-11-21 (Rev.2000).

¶ 12. Wilcher described the scene of the crime:

[I w]ent out to the Lobutcha Bridge on Center Crossing Road.... It’s on the northern part of Leake County. It’s near where the Leake and Atta-la County line meet. It’s in the eastern side of the county near Winston County, Neshoba County....
There was also just north of the bridge a dirt driveway. There was a large pool of what appeared to be blood. It had what appeared to be brain matter and bone fragments inside the puddle of blood. There was also what appeared to be at that time hair extensions that were braided laying at the scene. There were a pair of high heeled sandals, and there was a shell casing from what appeared to be a rifle.

While Wilcher testified the bridge is in Leake County, he is ambiguous as to whether the scene of the crime was on the bridge or just north of the bridge. He is also vague as to whether just north of the bridge is in Leake or Attala County.

¶ 13. However, later, Wilcher gave testimony that the shooting did occur in Leake County. He testified about driving with McBride to where Wilson’s body was hidden:

Q. Now, you are back out here in Leake County, at the scene at the bridge?
A. Yes, sir.
Q. Where you found the puddles and the things that are in these pictures. Did he indicate to you that’s where the shooting occurred?
A. Yes, sir, he did.
Q. Tell us how y’all got from there to finding the body of Latricia Wilson.
A. He told us to turn around and drive back toward Kosciusko, and he told us to drive slow, and he recognized the driveway when he saw it, and immediately as we entered into At-tala County, when we crossed the Leake-Attala County line entering into Attala County, he said, “Slow down. There’s the driveway on your left.” ...

This was sufficient evidence for a reasonable jury to conclude that the shooting occurred in Leake County. We hold venue was proper.

II. Did the trial court err in admitting the disputed confession?

¶ 14. Although we ordered supplemental briefing on the trial court’s admission of the disputed confession, McBride failed to address this issue. The State did address the issue and argues that the statement was voluntary and therefore admissible.

¶ 15. Despite McBride’s counsel’s failure to address the issue, we will address the issue on the merits. We do this for two reasons. First, under the new procedure announced in Lindsey, 2003-KA-00331-SCT at 6,—So.2d at-(¶ 18), “Once briefing is complete, the appellate court must consider the case on its merits and render a decision.” Secondly, the purpose of the Lindsey procedure is to “safeguard the constitutional right to counsel which is afforded to indigent criminal defendants throughout the entirety of appellate proceedings.” Id. at 6, — So.2d at -(¶ 20), (citing Smith v. Robbins, 528 U.S. 259, 280, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000)). ¶ 16.

¶ 16 At trial, McBride moved to suppress the police’s version of his confession. He did not challenge that it was voluntarily made. Rather, he moved to suppress the confession on the grounds that it was not what he said. The police say McBride confessed that he “lost it” and shot Wilson over the derogatory statements she made about the murder of his cousin. McBride maintains that he confessed that he accidentally shot her when he was trying to shake the clip loose from the gun.

¶ 17. We review denials of motions to suppress confessions for manifest error or for whether the decision is contrary to the overwhelming weight of the evidence. Carlisle v. State, 822 So.2d 1022, 1026(¶ 11) (Miss.Ct.App.2002). As long as the correct principles of law are applied and the finding of voluntariness is factually supported by the evidence, we will affirm. Id.

¶ 18. We addressed the admissibility of a disputed confession in Cobb v. State, 734 So.2d 182 (Miss.Ct.App.1999). James Cobb was accused of robbing a jewelry store. Id. at 184(¶2). Cobb moved to suppress an oral confession made after his arrest. Id. at 184(¶ 5). He did not challenge the voluntariness of the statement. Id. at 184(¶ 6). What he challenged was the content. Id. at 184-85(¶ 6). Cobb claimed that he told the police that he did not commit the robbery. Id. at 185(116). The State claimed that he admitted robbing the store. Id. at 184(¶ 5). When police typed this confession, Cobb refused to sign it. Id.

¶ 19. This Court held, “Such testimony does not constitute grounds to exclude the confession if it is contradicted by competent evidence that the statements were, in fact, made.” Id. at 185(¶ 7). “Once there is credible proof that such a statement was made, evidence of the contents of the statement is admissible.” Id. The defendant, however, may offer evidence to impeach the testimony of the witness claiming to have heard the statement. Id. Thus, the Court held the oral confession was admissible. Id.

¶ 20. Cobb instructs our decision in this case. The mere fact that McBride disputes the content of his confession is not reason to exclude it. Rather, we must determine if there is credible proof that the statement was, in fact, made. If so, the statement is admissible.

¶ 21. At the suppression hearing, McBride conceded that he gave the statement voluntarily. McBride, Wilcher, and Johnson testified that McBride was given Miranda warnings and understood his rights. Wilcher testified that McBride told Wilcher that McBride lost his temper, shot Wilson, threw the gun and her purse over the bridge, put her in his car trunk and left her body somewhere. Agent Johnson testified he was outside of the interrogation room. He said Wilcher and McBride came out of the room, and Wil-cher told him that McBride had said “he just lost it and shot her and he would show us where the body was.” Johnson asked McBride if that was true, and McBride said yes. Sheriff Lee testified, “Investigator Wilcher came out and Mr. McBride told me verbally that she had just kind of—he said he just heard so much—the lady had said so much about his cousin that he had just lost it, and he killed her.”

¶ 22. On this record, there was credible evidence for the judge to conclude- the statement was, in fact, made and that it was made voluntarily. McBride was allowed to attempt to impeach the officers’ memories and to present his version of the statement. We hold the judge’s decision to admit the statement was not manifest error.

III. Did the prosecution ask the jury to pledge a verdict?

¶ 23. Lastly, McBride contends that the prosecutor asked the jury to pledge a verdict based on less than reasonable doubt. The State responds that the prosecutor was merely asking the jury to vote on what they believed to be the truth.

¶24. McBride did not object to the examination during voir dire, nor did he object to it in a post-trial motion. The failure to make a contemporaneous objection waives this issue on appeal. Kimble v. State, 920 So.2d 1058, 1060(¶ 7) (Miss.Ct. App.2006). McBride, however, relies on plain error. He argues that the prosecutor asked the jury to pledge a guilty verdict on less than reasonable doubt. The right not to be convicted unless the State proves guilt beyond a reasonable doubt is a fundamental right. Evans v. State, 919 So.2d 231, 235(¶ 15) (Miss.Ct.App.2005). It is guaranteed by our state constitution, as well as the Due Process Clause of the federal constitution. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Evans, 919 So.2d at 235(¶ 15). As such, its violation is noticeable as plain error. Id. Therefore, we will address the merits of this issue.

¶ 25. During voir dire, “No hypothetical questions requiring any juror to pledge a particular verdict will be asked.” URCCC 3.05. The prosecutor and the defense “should not attempt to obtain a promise from each juror as to what he would do under any given circumstance. Both sides are entitled to a fair trial, but not to a previously committed group of jurors.” Murphy v. State, 246 So.2d 920, 922 (Miss.1971). Where prose-cutorial misconduct endangers the fairness of the trial and the impartial administration of justice, we must reverse. Acevedo v. State, 467 So.2d 220, 226 (Miss.1985).

¶ 26. During voir dire the prosecutor told the jury that the State had the burden of proving the case beyond a reasonable doubt. He said that each juror must determine for himself what reasonable doubt is. He continued:

The last thing I want to talk to you about is this, and I have already referred to it. What we want you to do or any juror to do, and all I ever ask a juror to do is to give me a fair verdict and decide the case on what you hear in the Courtroom that comes from that witness stand over there, and then just simply decide the case on what you believe to be the truth,.and then like the Judge said a minute ago, let the chips fall where they may. You know, if he’s guilty, vote to find him guilty. If you honestly believe the State hasn’t met its burden of proof , and the Defendant is not guilty, then by all means you should vote not guilty. I may disagree with you about it, but if that’s the way you truly feel, that’s what I want you to do. What I really want you to do is for you to feel that the State has met its burden of proof. I’ve been a prosecutor this is my seventeenth year now. I’ve tried a lot of cases, a lot of guilty verdicts, not guilty verdicts, and the ones that have been not guilty, I might not agree with them, but as long as a person tells me that was their honest belief, that’s fine with me.
But I have also had people come to me after cases and say, “Well, Mr. Duncan, I thought the Defendant was guilty, but I voted not guilty for some other reason.” They felt sorry for his mama, the family, or something like that. That’s what we don’t want. So, does everybody tell me if you are sitting on this case or any other one, that you will decide the case on what you believe the truth to be and not anything else? Can you do that?

The last paragraph is the portion McBride takes issue with on appeal. First, we note that the prosecutor did not present a hypothetical set of facts. Therefore, he cannot be said to have asked the jury to pledge a verdict on a hypothetical.

¶ 27. Secondly, we address whether the prosecutor asked the jury to hold the State to a lesser burden of proof. Taking the last paragraph by itself, it appears the prosecutor is asking the jury to pledge a verdict based on what they believe, as opposed to what the State proved beyond a reasonable doubt. However, when read in context with the prosecutor’s examination, we find this is not the case. The prosecutor explained the State’s burden of proof was beyond a reasonable doubt. He then set about to make sure that the jury would vote based on whether or not they believed the State met that standard of proof. He was also trying to determine that the jury would not base its verdict on sympathy. Sympathy is not a proper basis for a verdict. Forbes v. State, 771 So.2d 942, 949(¶ 18) (Miss.Ct.App.2000). We hold the prosecutor did not ask the jury to pledge a verdict based on less than reasonable doubt.

CONCLUSION

¶28. We affirm McBride’s conviction. Leake County had jurisdiction. The trial court’s decision to admit the confession was not manifestly wrong. The prosecutor did not engage in misconduct during voir dire.

¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE TO SERVE A TERM OF EIGHTEEN YEARS IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEAKE COUNTY.

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

      . The procedure in Turner had since been replaced by the new procedure announced in Lindsey.