author:
CARLSON, Justice,
      DICKINSON, Justice,

text:
    Tammy SMITH by and through her Father & next friend, Alvin Christopher SMITH v. CAPTAIN D’S, LLC.
    No. 2006-CA-00024-SCT.
    Supreme Court of Mississippi.
    June 14, 2007.
    Rehearing Denied Sept. 13, 2007.

      Duncan L. Lott, Booneville, attorney for appellant.
    Bradley Farel Hathaway, Greenville, attorney for appellee.
   CARLSON, Justice,

for the Court.

¶ 1. Tammy Smith, by and through her father and next friend, Alvin Christopher Smith, sued Captain D’s, LLC, in the Al-corn County Circuit Court for negligent hiring, supervision, and retention based upon alleged rape by a supervisor. The trial judge granted Captain D’s motion to compel arbitration and dismissed all of Tammy’s claims against Captain D’s. Tammy appeals, requesting that this Court reverse the trial court’s grant of Captain D’s motion to compel arbitration and dismissal of her lawsuit, and remand this case to the trial court for a full trial on the merits. Upon careful consideration of the issues presented, we agree with Tammy and thus reverse the trial court’s grant of Captain D’s motion to compel arbitration and dismissal of Tammy’s claims, and we remand this case to the trial court for further proceedings consistent with this opinion.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On February 3, 2004, Tammy Smith (Tammy), then seventeen years old, along with her grandparents visited Captain D’s restaurant in Corinth. While they were eating, Tammy’s grandmother, saw her friend, Peggy Jones (Jones), a manager of Captain D’s. She approached Jones for an employment application for Tammy. Jones retrieved an employment application and delivered it to Tammy’s grandmother. After eating, Tammy and her grandparents left the restaurant with the application.

¶ 3. At home, Tammy filled out the application for employment, which included a single-page arbitration agreement entitled “CAPTAIN D’S EMPLOYMENT DISPUTE RESOLUTION PLAN.” The agreement required both Captain D’s and Tammy to submit claims between them to binding arbitration. The agreement stated that if Tammy did file a lawsuit, Captain D’s could use the agreement to dismiss the lawsuit and compel arbitration.

¶ 4. Jones would later testify that she told Tammy that her grandmother had to sign the agreement because Tammy was a minor. Tammy signed the arbitration agreement as the applicant and her grandmother signed on the line provided for a guardian.

¶ 5. On August 17, 2004, Tammy filed suit in the Alcorn County Circuit Court against Captain D’s and Christopher Lee Howell (Howell), alleging that Howell, a manager of Captain D’s, assaulted and raped her during working hours. Tammy’s complaint asserts that Captain D’s was negligent in its hiring, supervising, and retention of Howell.

¶ 6. On September 16, 2004, Captain D’s filed a Notice of Election of Binding Arbitration, Motion to Dismiss Complaint and to Compel Arbitration, and Alternative Motion to Dismiss Based on the Exclusive Remedy of the Mississippi Workers’ Compensation Act and Separate Answer Subject to Motions to Compel Arbitration and to Dismiss. Tammy responded by, inter alia, objecting to arbitration.

¶ 7. The issues were joined and a hearing was held on May 3, 2005, Judge Shar-ion Aycock, presiding. Judge Aycock subsequently entered a Memorandum Opinion on December 14, 2005, granting Captain D’s motion to compel arbitration and dismissing Tammy’s claims against Captain D’s in the circuit court. A final judgment consistent with the memorandum opinion was entered on December 28, 2005.

¶ 8. Tammy submitted her Petition for Interlocutory Appeal to this Court, requesting interlocutory review of the trial court’s final judgment. On February 15, 2006, this Court found that final judgment had been entered as to Captain D’s pursuant to Miss. R. Civ. P. 54(b), and further found that Tammy’s petition for interlocutory appeal should be treated as a timely filed notice of appeal from a final judgment.

DISCUSSION

¶ 9. A trial court’s grant or denial of a motion to compel arbitration is a question of law; therefore, we apply a de novo standard of review on appeal. Howard v. Estate of Harper, 947 So.2d 854, 856 (Miss.2006) (citing Sennett v. United States Fid. & Guar. Co., 757 So.2d 206, 209 (Miss.2000)); Pre-Paid Legal Servs. v. Battle, 873 So.2d 79, 82 (Miss.2004) (citing Russell v. Performance Toyota, Inc., 826 So.2d 719, 721 (P 5) (Miss.2002)). See also East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (Miss.2002).

¶ 10. Tammy presents three issues to be decided in today’s case: (1) whether a minor may disaffirm an arbitration agreement based on the infancy doctrine; (2) whether the arbitration agreement is unconscionable; and (3) whether the right to arbitration is precluded by the assertion of an alternative affirmative defense. However, finding one issue to be dispositive, we restate the critical issue for clarity in discussion.

WHETHER THE PARTIES AGREED TO ARBITRATE

¶ 11. In the appellant’s brief, Tammy’s counsel unquestionably focuses the majority of his argument on Tammy’s minority status; however, in discussing the various issues, Tammy acknowledges the basic law on arbitration as discussed by this Court in interpreting the Federal Arbitration Act (FAA) and in applying the decisions of the United States Supreme Court. In the course of this discussion, Tammy asserts, inter alia, that under Mississippi law, the courts, “when determining whether a dispute is subject to arbitration ... must first ask (1) whether the parties had a valid agreement in arbitration and (2) whether the specific dispute falls within the substantive scope of that agreement.” Tammy undergirds this statement by citing our decision in East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (Miss.2002). Tammy also cites Thomson-CSF, S.A. v. American Arbitration Association, 64 F.3d 773, 776 (2nd Cir.1995), which stated:

Arbitration is contractual by nature — “a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). Thus, while there is a strong and “liberal federal policy favoring arbitration agreements,” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 625,105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (quotations omitted), such agreements must not be so broadly construed as to encompass claims and parties that were not intended by the original contract.

Id. at 776.

¶ 12. Captain D’s likewise states, “[w]hen evaluating a motion to compel arbitration it must be shown that a valid agreement to arbitrate exists and whether the dispute in question falls within the scope of that arbitration agreement. Fleetwood Enterprises, Inc. v. Gaskamp, 280 F.3d 1069, 1073 (5th Cir.2002).”

¶ 13. This Court’s decision in today’s case follows on the heels of our recently-decided opinion in Rogers-Dabbs Chevrolet-Hummer v. Blakeney, 950 So.2d 170 (Miss.2007). In Rogers-Dabbs, we once again set out the well-established responsibility of the courts when confronted with arbitration issues by stating that the courts must first determine whether the parties have agreed to arbitration of the dispute and if it is determined that they have, then a determination must be made as to “whether legal constraints external to the parties’ agreement foreclosed arbitration of those claims.” Id. at 173 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)). See also East Ford, 826 So.2d at 713.

¶ 14. Since our decision today turns on the first prong (whether the parties agreed to arbitrate the dispute), we focus only on this prong. As we have noted on prior occasions, this first prong has two sub-factors: “(1) whether there is a valid arbitration agreement and (2) whether the parties’ dispute is within the scope of the arbitration agreement.” Rogers-Dabbs, 950 So.2d at 178 (quoting East Ford, 826 So.2d at 713). In Rogers-Dabbs, the vehicle purchaser, Blakeney, executed various documents relating to the purchase, including an arbitration agreement wherein Blakeney agreed with the dealer, Rogers-Dabbs, to submit to arbitration “all claims, demands, disputes or controversies of every kind or nature between them arising from, concerning or relating to” the transaction, including negotiations, financing arrangements, extended warranties, performance of the vehicle, “or any other aspect of the vehicle and its sale, lease, or financing.” Id. at 174.' Blakeney eventually sued Rogers-Dabbs under several theories, asserting that the car dealer’s employee(s) had engaged in a fraudulent scheme to use Blakeney’s identity to obtain forged titles to stolen vehicles, resulting in Blakeney never receiving title to his vehicle. Rogers-Dabbs filed a motion to compel arbitration based on the arbitration clause in the consumer contract, and the trial court denied the motion to compel arbitration. On appeal, we affirmed the trial court’s denial of the motion to compel arbitration. This Court found that the parties’ dispute “was not within the scope of the arbitration agreement.” Id. at 178. In reaching this conclusion, the Court stated that while the purchaser no doubt had agreed to arbitrate claims originating from (or relating to) the sale of the vehicle, “no reasonable person would agree to submit to arbitration any claims [taking the claims as alleged to be true for the sake of argument] concerning a Hummer to which he would never receive a title; a scheme of using his name to forge vehicle titles and bills of sale to sell stolen vehicles; and the commission of civil fraud against him by misappropriating his title to the Hummer he purchased and forging his name on fake titles and bills of sale on various stolen vehicles ...” Id. at 177. Although we found the existence of a valid arbitration agreement, we found, on the other hand, that the dispute between the purchaser and dealer was not within the scope of the arbitration agreement. Thus, wé found that the car dealer had failed to satisfy the first prong of East Ford, that being whether the parties had agreed to arbitrate the dispute. Id. at 176, 178.

¶ 15. Turning to the facts of today’s case, Captain D’s Employment Dispute Resolution Plan stated, inter alia:

[B]oth Captain D’s and I agree to settle any and all previously unasserted claims, disputes, or controversies arising out of or relating to my application for employment, employment and/or cessation of employment with Captain D’s, exclusively by final and binding arbitration before a neutral Arbitrator. By way of example only, such claims include claims under federal, state and local statutory or common law, such as the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, as amended, including the amendments of the Civil Rights Act of 1991, the Americans with Disabilities Act, the Family Medical Leave Act, the law of contract and law of tort.
I understand that if I do file a lawsuit regarding a dispute arising out of or relating to my application for employment, employment, or cessations (sic) of employment, Captain D’s may use this Agreement in support of its request to the court to dismiss the lawsuit and require me to use arbitration.

Just as in Rogers-Dabbs, there is no fervent effort to attack the validity of the arbitration agreement which Tammy signed, other than the assertion of disaf-firmance. Therefore, we quickly move to the first prong’s second consideration— whether the parties’ dispute is within the scope of the arbitration agreement. Rogers-Dabbs, 950 So.2d at 176 (citing East Ford, 826 at 713). In determining the scope of the arbitration agreement, “[c]ourts often characterize arbitration language as either broad or narrow.” MS Credit Ctr., Inc. v. Horton, 926 So.2d 167, 175 (Miss.2006). The United States Supreme Court has found similar language— “any controversy or claim arising out of or related to” — to constitute a broad arbitration provision. Smith Barney, Inc. v. Henry, 775 So.2d 722, 726 (Miss.2001) (citing Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 406, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967)). “Because broad arbitration language is capable of expansive reach, courts have held that it is only necessary that the dispute “touch” matters covered by the contract to be arbitrable.” Horton, 926 So.2d at 176 (internal quotation marks omitted). Further, “relate” means “to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with”; with “to.” Black’s Law Dictionary 892 (Abridged 6th ed. 1991).

¶ 16. The question of “scope” is narrowed to whether Tammy’s rape claim arises out of or relates to “[Tammy’s] application for employment, employment, and/or cessation of employment with Captain D’s,” so as to subject Tammy’s sexual assault claim to arbitration. While recognizing the breadth of the language in the arbitration provision, we unquestionably find that a claim of sexual assault neither pertains to nor has a connection with Tammy’s employment.

¶ 17. In sum, we find that Tammy’s sexual assault claim against Captain D’s and its employee is clearly not within the scope of the arbitration agreement; therefore, Captain D’s “fails to satisfy the first prong of East Ford (whether the parties have agreed to arbitrate the dispute).” Rogers-Dabbs, 950 So.2d at 178. Likewise, as we found in Rogers-Dabbs, our action today does not offend the Federal Arbitration Act by remanding this case for a full trial on the merits of the case. Id.

¶ 18. For the reasons stated, we find this issue to have merit, and since this issue is dispositive, we deem it unnecessary to address the other issues raised on appeal.

CONCLUSION

¶ 19. For the reasons stated, the Alcorn County Circuit Court’s judgment compelling Tammy to arbitration and dismissing her claims is reversed, and this case is remanded to the trial court for further proceedings consistent with this opinion.

¶ 20. REVERSED AND REMANDED.

SMITH, C.J., WALLER, P.J., EASLEY, RANDOLPH AND LAMAR, JJ., CONCUR. DIAZ, P.J., AND GRAVES, J„ CONCUR IN RESULT ONLY. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

DICKINSON, Justice,

dissenting:

¶21. After much discussion with my fellow justices comprising the majority concerning our respective views in this case, and after carefully reexamining my own view, I unfortunately find it impossible to withhold this dissent. This is so, even though my disagreement with the majority’s conclusions is slight. The majority and I are in agreement that Tammy Smith and Captain D’s entered a valid, binding arbitration agreement. There were no other issues raised by the parties and briefed to the trial court or to this Court on appeal. Thus, the majority today takes the unusual step of deciding an interlocutory appeal on an issue never raised or briefed by either party, and not discussed by the trial court.

¶ 22. My disagreement with the majority may be summarized as follows: The majority correctly concludes that Tammy must submit her claims to arbitration if they “arise out of or relate to her employment.” However, the majority then decides (apparently as a matter of law) that Tammy’s claims do not relate to her employment. It is my view that we don’t know whether they do or not because the issue (which I believe to be fact-intensive) was never raised with the trial court, and was neither raised nor briefed here. Thus, I respectfully dissent from the majority’s disposition of this case, and would instead remand the case for an evidentiary hearing.

¶ 23. Tammy, who was an employee of Captain D’s, alleges that her employer was negligent in hiring, supervising, and retaining her manager, Christopher Howell, and that she was assaulted by her manager at the restaurant.

¶ 24. I think it important to note here that, in its zeal to separate what it calls “Tammy’s rape claim” from the scope of her arbitration agreement, the majority fails to absorb the fact that Tammy filed no “rape claim” against Captain D’s. Her claim against Captain D’s (as the majority recognizes and states elsewhere in its opinion) is for “negligent hiring, supervision, and retention” of her manager, Howell. Thus, this Court is not really being called upon today (as the majority asserts) to decide “whether Tammy’s rape claim arises out of or relates to” her employment.

¶ 25. A.S stated, there is no dispute that Tammy is bound by the arbitration agréement. Therefore, she must submit her claims against Captain D’s to arbitration if they “arise out of or relate to” her employment. In her efforts before the trial court (and before this Court) to avoid arbitration, Tammy argued only that she was not bound by the agreement. She neither stated nor implied that she should not be required to arbitrate because her claims did not relate to her employment.

¶ 26. Footnote 1, supra, specifically lists Tammy’s three arguments, none of which even hint that Tammy takes the position that her claims do not relate to her employment. The majority, realizing that the issue has not been raised, skillfully and smoothly claims to “restate the critical issue for clarity in discussion.” I’m not sure I know what this means, but I am sure that it would be inaccurate to conclude that the majority’s deciding issue somehow flowed from the issue raised before this Court.

¶ 27. Not only was the issue never raised nor briefed by any of the parties, but it seems to me its resolution requires an examination of the facts — an examination never conducted by the trial court or the majority. The trial court never examined the facts because the trial court was presented with no facts on the issue to examine. This Court, of course, never examined the facts because we were placed by the parties in the same position as the trial court, that is, we were given no facts to examine.

¶28. All we are told about Tammy’s claim is that she alleges in her complaint “[o]n or about February 18, 2004, at approximately 10:00 a.m., at the Captain D’s restaurant ... Howell, while in the scope and scope of his employment injured the plaintiff, Smith, by willfully and intentionally assaulting and raping her on the restaurant premises in the women’s restroom.” Tammy’s complaint further alleges that Captain D’s should be held responsible for damages because it negligently hired Howell as a supervisor and failed to properly monitor and supervise him. More significantly, Tammy claims that “Captain D’s had a duty to supervise employee, Howell, when he dealt with the public and with fellow employees.”

¶ 29. In my view, there are many unaddressed factual questions which bear on the issue of whether Tammy’s claims against Captain D’s of negligent hiring, retention, and supervision of Howell relate to her employment. For instance, we do not know (1) whether the restaurant was open for business, or was closed with the doors locked, with only employees (perhaps only Tammy) locked inside with the manager; (2) whether Tammy was working at the time, and thus was required (as an employee) to be on the premises and under Howell’s supervision and control; (3) whether Howell, in his capacity as manager, ordered Tammy to go to the restroom for some pretextual reason, such as to take toilet paper or paper towels; (4) whether customers or other employees were present in the restaurant or in the rest room at the time of the incident; or (5) whether Tammy failed to stop the assault out of fear of losing her job.

¶ 30. It seems to me important for the trial court to address these and many other factual questions. For instance (and only by way of hypothetical example), suppose the facts revealed that:

Tammy reported for work at 9:30 on the day in question, and that the restaurant was not open to the public. No employees other than Tammy and Howell were present. While Tammy was preparing to open the restaurant, Howell (as Tammy’s manager) ordered her to fill the paper towel dispenser in the Ladies’ restroom. Tammy complied with her manager’s order and went into the restroom, and the manager then followed her in and began to assault her. When Tammy attempted to resist, Howell, threatened to fire her if she resisted further, or if she reported the incident. And even though Captain D’s was aware that Howell had done the same thing at other restaurants in the past, it hired him anyway.

¶ 31. I wish to emphasize that we have no reason to believe that any of these things happened, but neither do we have any reason to know that they didn’t. We just don’t know, and neither did the trial judge. Under the above hypothetical facts, it could hardly be argued with credibility that Tammy’s claim is not “related to” her employment since it was because of her employment that she was present in the store with the doors locked, and was subject to the manager’s orders and threats.

¶ 32. On the other hand, it could be that Tammy was not working, but just stopped by to get something to eat and Howell, seeing her go into the restroom, followed her in and assaulted her. Again, this is a hypothetical, and we have no reason to believe that the assault alleged by Tammy happened this way. But if it did, it would be difficult to argue that the assault was related to Tammy’s employment.

¶ 33. I firmly believe this matter should be remanded to the trial court for an evidentiary hearing and a determination of whether Tammy’s claims against Captain D’s relate to her employment. If the trial court, after reviewing the evidence submitted by the parties, concludes that they do, this case should be settled in arbitration. If it does not, then the matter should proceed to trial in the circuit court.

¶ 34. Because the majority decides this appeal on an issue never raised; ignores the need for a factual determination; and simply decides as a matter of law that Tammy’s claims do not relate to her employment, I respectfully dissent.

      . In July, 2003, Tammy moved in with her grandparents for personal reasons that need not be discussed here.

      . Captain D’s is a seafood restaurant owned and operated by Captain D’s, LLC.

      . There is evidence in the record indicating that Tammy and her grandmother may have actually signed the one-page arbitration agreement while at the restaurant. Captain D's arbitration plan consisted of the single-sheet agreement and a 32-page informational booklet describing the agreement. Jones testified in her deposition that she was unsure of whether the copy of the booklet she gave Tammy was the December 2003 version or the revised, February 2004 version.

      . Tammy argues that her grandmother was not her court-appointed guardian and, thus, did not have the authority to sign the arbitration agreement as Tammy’s guardian, thereby rendering the agreement ineffective. Captain D's argues that, even if Tammy’s grandmother was not Tammy’s court-appointed guardian, she was acting in loco parentis. Because this has no effect on our decision, we choose not to address this issue today.

      .Howell proceeded pro se, and he is not a party to this appeal. He answered the lawsuit in the trial court, but did not join in Captain D’s motion or otherwise move to compel arbitration.

      . Tammy raised three issues with the trial court in opposition to Captain D’s motion to compel arbitration. She claimed (1) that the Mississippi Arbitration Act did not apply to minors; (2) that her grandmother, Pat Spencer, (who co-signed the arbitration agreement) did not hold the status of plaintiff’s guardian; and (3) that the cost of arbitration was prohibitive.

      . The trial judge granted Captain D’s motion to compel arbitration. Tammy filed an interlocutory appeal with this Court, raising the issues of (1) whether a minor may disaffirm an arbitration agreement; (2) whether the arbitration agreement was unconscionable; and (3) whether Captain D's should be prevented from compelling arbitration after asserting the affirmative defense of “exclusive remedy” under the Workers Compensation Act. In her order, Judge Aycock stated it was “apparent Plaintiff’s real contention is that Plaintiff, due to her minority status, should not be bound by the arbitration agreement.”

      .Tammy did, of course, file a “rape claim” against Howell (the perpetrator). However, neither Howell nor Tammy’s rape claim against him is before us.

      . It could be argued that Tammy’s claims against Captain D's so clearly relate to her employment that Tammy’s counsel didn’t even bother raising the issue with the trial court or here. One would think if Tammy's counsel concluded the argument had any merit whatsoever, it would have at least been raised and argued.


source: Caselaw Access Project

author: SMITH, Chief Justice,

license: Public Domain

text:
    Darral BELL v. STATE of Mississippi.
    No. 2006-KA-00900-SCT.
    Supreme Court of Mississippi.
    July 19, 2007.
    Rehearing Denied Sept. 13, 2007.

      Charles E. Miller, Mccomb, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.

      Before SMITH, C.J., EASLEY and DICKINSON, JJ.
   SMITH, Chief Justice,

for the Court.

¶ 1. This case comes to this Court on appeal from the Circuit Court of Amite County, by defendant Darral Bell. On March 9, 2005, Bell was indicted by an Amite County grand jury for the murder of LeCedric Hurst. On May 18, 2006, Bell was convicted of manslaughter and sentenced to a term of fifteen years with five years suspended in the Mississippi Department of Corrections. Bell subsequently filed a Motion for Judgment Notwithstanding the Verdict, which was denied. Bell then timely filed a Notice of Appeal to this Court.

¶ 2. Finding no errors by the trial court, we affirm.

FACTS

¶ 3. On October 30, 2004, Bell and Hurst were involved in an altercation at the residence of Edna Spears, a relative of Hurst, with other witnesses present. Bell testified that Hurst struck him with his hand, but Bell did not respond to this attack. Bell left Spears’s residence, driving a white F350 work truck, with one passenger, Kerwin Bland. Hurst left Spears’s residence driving a four-wheeler and traveled onto Perry Road. The two vehicles were traveling in the same direction at the time of the collision. Hurst was killed in the collision. Dr. Steven Hayne, who performed an autopsy on Hurst’s body, testified that Hurst died of massive internal injuries, including lacerations to his liver and aorta. The Amite County Sheriffs Office responded to the scene of the wreck. Officer Anthony Reeves made initial inquiries as to the events causing the wreck.

¶ 4. Bell was arrested at 11:20 p.m. on October 30, 2004. On March 9, 2005, Bell was indicted for the murder of Hurst. An Amite County jury subsequently found Bell guilty of manslaughter and sentenced him to a term of fifteen years with five years suspended in the custody of the Mississippi Department of Corrections. The trial court denied Bell’s motion for judgment notwithstanding the verdict (JNOV). From that conviction and denial, Bell appeals to this Court, raising the following seven issues on appeal:

I. Whether the evidence is insufficient to support conviction pursuant to the indictment and relevant law. The lower court erred in not granting a judgment notwithstanding the verdict pursuant to Rule 50(B) of the Mississippi Rules of Civil Procedure.
II. Whether the lower court erred by not dismissing the indictment or granting mistrial when it allowed testimony of prior bad acts of the accused.
III. Whether the lower court should have dismissed the case based on illegal arrest.
IV. Whether the lower court erred in its failure to dismiss the case based on discovery violations.
V. Whether Bell’s Miranda rights were violated and the court erred in not suppressing any and all statements made by Bell.
VI. Whether the lower court erred in not dismissing the indictment for failure to comply with Rule 6.03.
VII. Whether the lower court erred in denying Bell’s motion to dismiss on the basis of spoliation of evidence.

DISCUSSION

I. Sufficiency of the evidence

¶ 5. First, Bell asserts that insufficient evidence supported the verdict, and thus the trial court should have granted his motion for JNOV. Bell argues that the State’s case rested entirely on the testimony of Kerwin Bland and other witnesses, which should have been suppressed based on the unreliability of these witnesses. Bell also argues that Bland gave no independent corroboration of the evidence. Further, Bell asserts that the trial court erred by not suppressing physical evidence such as the truck, the four-wheeler and photographs. The State counters that the record reflects that the evidence supporting Bell’s conviction did not rely entirely upon Bland’s testimony. Further, the State argues that Bland’s testimony as to what he witnessed was not shown to be credible. Citing McClain v. State, 625 So.2d 774, 778 (Miss.1993), the State asserts that the denial of Bell’s motion for JNOV was proper because sufficient credible evidence supports the denial, including eyewitness testimony, voluntary inculpato-ry statements and statements against interest.

¶ 6. In reviewing a denial of a motion for a JNOV, this Court must consider all of the evidence in the light most favorable to the State. McClain, 625 So.2d at 778 (citing Esparaza v. State, 595 So.2d 418, 426 (Miss.1992)); Wetz v. State, 503 So.2d 803, 808 (Miss.1987); Harveston v. State, 493 So.2d 365, 370 (Miss.1986). The credible evidence which is consistent with the guilt must be accepted as true. Id. (citing Spikes v. State, 302 So.2d 250, 251 (Miss.1974)). Matters regarding the weight and credibility of the evidence are to be resolved by the jury. Id. (citing Neal v. State, 451 So.2d 743, 758 (Miss.1984); Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980)). This Court will reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty. Id. (citing Wetz, 503 So.2d at 808; Harveston, 493 So.2d at 370; Fisher v. State, 481 So.2d 203, 212 (Miss.1985)).

¶7. Kerwin Bland, the son of Edna Spears, was present at Spears’s house on the night that the wreck occurred. Kerwin left the house with Bell following the argument between Bell and Hurst. Kerwin was riding in the truck with Bell when the wreck occurred. At trial, Kerwin testified that Hurst came up behind the truck and when Hurst got ready to pass the truck, Bell “cut over” on him. Kerwin testified that he could hear and see Hurst’s four-wheeler when it was beside the truck. He also testified that Bell looked back through the window toward the four-wheeler before cutting over on Hurst. Kerwin testified that after the truck hit the four wheeler, the truck continued to the left and between two trees in a nearby yard. Damage to the driver’s side of the truck is shown in the photographs, which were admitted into evidence. Kerwin also testified that after the wreck occurred, Bell told him not to say anything. Despite Bell’s argument that the evidence should be suppressed based on the lack of reliability of Kerwin’s testimony, a review of the record shows Bell offered no evidence to prove that this witness was unreliable. Furthermore, the question of credibility of the evidence is not for this Court to decide, but is to be determined by the jury. McClain, 625 So.2d at 778.

¶ 8. Tannie Bland, Spears’s nephew, also testified that he was present at Spears’s home on the night of the incident. Tannie witnessed the altercation between Hurst and Bell. Tannie testified that he was standing in the driveway when Bell lowered the truck window and said “bring your bad a* * up the road, I got something for you.” Melvin Bland, Spears’s brother, was also present at Spears’s home that night. Melvin testified to hearing Bell yell at Hurst from his truck that he “had something for him if he come up the road.” Melvin, who witnessed the accident from the front porch of Spears’s home, testified that Hurst got ready to pass Bell when the truck cut over on him. Melvin testified that he could see Perry Road from the porch because it was at the top of the hill from the house. After the collision, Melvin saw Bell’s truck go to the left into a nearby yard. However, Melvin testified that the truck then went out of his sight because a large house blocked his view.

¶ 9. Officer Reeves, who responded to the scene of the wreck, testified that Bell initially told him that Hurst must have hit a tree. However, Reeves testified that Bell showed him the truck and then told him a second time how the wreck happened. This time, Bell stated that Hurst lost control of the four-wheeler when he went to pass him and that his four-wheeler went into the mirror and the front side fender of the truck.

¶ 10. Additionally, Lieutenant Gerald Wall testified that he interviewed Bell on November 1, 2004. Wall testified that Bell received his Miranda rights and gave a signed a waiver of those rights at 4:50 p.m. that day. Wall then took Bell’s statement, which was handwritten and signed by Bell. In the statement, Bell admitted that he and Hurst had an argument at Spears’s home. Bell subsequently left the home in the work truck. Bell stated that in order to stop Hurst from getting home, he drove in the middle of the road to prevent Hurst from passing him. Bell stated that he would get over when Hurst tried to pass, until the last time when he turned the wheel too far and lost control of the truck, causing Hurst to hit the front wheel of the truck. Wall read this statement at trial.

¶ 11. Dr. Hayne, who performed an autopsy on Hurst, testified that Hurst died as a result of massive internal injuries. Dr. Hayne testified that Hurst’s injuries would be consistent with injuries resulting from a truck and four-wheeler crash where the truck ran over the decedent. Officer Cecilia Kazery, an accident recon-structionist and rebuttal witness for the prosecution, testified that she reviewed the reports, Bell’s statement, and the photographs in evidence in addition to personally observing the truck and scene of the wreck. From this evidence, Kazery opined that Hurst was run over by Bell while traveling beside him or attempting to pass the truck. Based on her examination of the photographs and scene of the wreck, Kazery testified that Bell’s truck went through two trees in a nearby yard after colliding with Hurst’s four-wheeler, which supports the other witnesses’ testimony of how the wreck occurred.

¶ 12. Based on the evidence introduced at trial, we find sufficient evidence in support of the verdict. Therefore, the trial court did not err in denying Bell’s motion for JNOV.

II. Prior bad acts

¶ 13. Next, Bell argues that the State improperly elicited testimony from officers that Bell committed a crime by driving in the middle of the road. Bell argues that this testimony violates 404(b) of the Mississippi Rules of Evidence, which prohibits the admission of evidence of other crimes or bad acts to prove the character of a person in order to show that he acted in conformity therewith. Essentially, Bell asserts that the trial court erred by admitting evidence that he was illegally driving in the middle of the road, a charge for which Bell was not indicted. The State argues that this evidence was properly admitted as it was introduced through Bell’s own statements to investigators after he was given a Miranda warning and signed a waiver of his rights.

¶ 14. The admissibility of evidence rests within the trial court’s discretion. Hall v. State, 611 So.2d 915, 918 (Miss.1992) (citing Wade v. State, 583 So.2d 965, 967 (Miss.1991)). This Court will reverse the ruling of a trial court only where such discretion has been abused and a substantial right of a party has been affected. Johnson v. State, 666 So.2d 499, 503 (Miss.1995)(citing M.R.E. 103(a)).

¶ 15. This evidence was part of Bell’s voluntary statement to the investigators that he drove in the middle of the road to prevent Hurst from passing him. At trial, Lieutenant Wall read the statement during his testimony with no objection from the defense. Specifically, Bell wrote that “[i]n order for me to stop him from getting home, I drove in the middle of the road to stop him from passing me.” His statement was then published to the jury without objection from the defense. On redirect examination, the prosecution questioned Wall as to whether Bell’s driving in the middle of the road and attempting to keep the victim from passing his vehicle were against the law. The defense objected to the question. After the trial court held a bench conference out of the hearing of the jury, the trial court sustained the objection and excused the jury. At this time, the defense moved for a mistrial based on the admission of the “prior bad act” of Bell. After hearing arguments from both sides, the trial court stated that, while it sustained the objection to the testimony that prosecution sought to elicit, the prosecution was not attempting to admit a prior bad act because the actions in question happened at the time of the alleged crime. When the jury was brought back into the courtroom, the trial judge advised the jury to disregard any response to this line of questioning. Later in the trial, during the testimony of Officer Kazery, the trial court again sustained an objection to the question of whether it is unlawful to drive in the middle of the road.

¶ 16. This Court held in Ballenger v. State, 667 So.2d 1242, 1257 (Miss.1995) that evidence of other crimes or bad acts is admissible to tell the complete story so as not to confuse the jury. In Brown v. State, 483 So.2d 328 (Miss.1986), the Court stated that the State has a “legitimate interest in telling a rational and coherent story of what happened.... ” Id. at 330. Further, where it is substantially necessary to present to the jury “the complete story of the crime,” evidence or testimony may be given, even though it may reveal or suggest other crimes. Id. This Court also stated, in Duplantis v. State, 644 So.2d 1235, 1246 (Miss.1994), that where another crime or act is “so interrelated [to the charged crime] as to constitute a single transaction or occurrence or a closely related series of transactions or occurrences,” proof of the other crime or act is admissible. Id.

¶ 17. We find that Bell’s voluntary statement that he was driving in the middle of the road was part of “the story of the crime,” explaining the events resulting in the death of Hurst. Furthermore, we find this act was admissible as it is so interrelated with the charge against Bell that it constitutes a closely related series of occurrences. Therefore, we find that the trial court did not abuse its discretion in admitting Bell’s statement that he drove in the middle of the road. However, it was error for the prosecution to elicit testimony from Officer Kazery that Bell committed a crime by driving in the middle of the road. This error was certainly avoidable as the trial court had previously sustained an objection to similar testimony by Lieutenant Wall. The trial court cured the first error by advising the jury to disregard the testimony concerning whether it is unlawful to drive in the middle of the road. The trial court further advised the jury that any time an objection is sustained, the jury should not consider or speculate about what the answer would have been or anything of that nature. Additionally, the trial court properly sustained the objection to the prosecution’s subsequent attempt to elicit this testimony from Officer Kazery. Hence, we find that because of the trial court’s rulings and curative instruction, the error was harmless. Therefore, this issue is without merit.

III. Arrest

¶ 18. Bell argues that he was arrested, held and questioned without probable cause. The State counters that the testimony of the investigating officer sufficiently shows probable cause to justify Bell’s arrest under the totality of the circumstances test. Officer Reeves observed the wreck scene involving the four-wheeler and the truck. The State argues that Officer Reeves, who questioned the parties and observed the body of Hurst at the scene, had probable cause for Bell’s arrest.

¶ 19. In defining probable cause in warrantless arrests, this Court stated that “[t]he officer involved is charged to make a practical, commonsense decision whether, given the totality of the circumstances, there is a fair probability that the person proposed to be arrested or searched is involved in substantial criminal activity.” Alexander v. State, 503 So.2d 235, 239 (Miss.1987). Officer Reeves testified that after arriving at the scene of the wreck, he was informed that Bell was the driver of the truck. Once Reeves approached Bell, he was able to determine that he had been drinking by the smell of alcohol on his breath. Reeves testified that he then asked Bell whether he had been drinking, and Bell responded that he had consumed three or four beers. Reeves confirmed that Bell was the driver of the truck, at which point he considered Bell a suspect. Further, Reeves’s report states that he arrested Bell at 11:20 p.m. on October 30, after ascertaining that Bell was the driver of the truck and had been drinking.

¶ 20. Based on Reeves’s observation of Bell at the scene and his confirmation from Bell that he had been drinking and was the driver of the second vehicle in the accident, we find that there was probable cause for Bell’s arrest. Therefore, this issue is without merit.

IV. Discovery violations

¶ 21. Bell asserts that the district attorney committed a discovery violation by submitting the State expert’s report as to the examination of the truck and crime scene on the first day of the trial. Citing West v. State, 553 So.2d 8, 17-20 (Miss.1989), Bell argues that the failure of the prosecutor to provide notice of expert testimony before trial was a clear violation of discovery rules and sufficient grounds for dismissal. The State argues that the prosecution stated for the record that it was not calling an accident reconstructionist in its case-in-chief, but would use an accident expert if Bell used one in his defense. The State argues that the record reflects that the defense did not supply the prosecution with the detailed report of its proposed expert, James Hannah, until the day of trial. The State also argues that Officer Kazery, an accident reconstructionist, testified for the prosecution only in rebuttal. The State further asserts that any delay in receiving Kazery’s report can be attributed to the defense, since it failed to provide Kazery with a copy of Hannah’s report.

¶ 22. Based on the procedure first outlined in Box v. State, 437 So.2d 19, 23-24 (Miss.1983), when a trial court is faced with previously undisclosed evidence to which the defendant has objected, it should give the defendant a reasonable opportunity to familiarize himself with the evidence. Duplantis, 644 So.2d at 1249-1250. If the defendant thereafter believes he may be prejudiced by the admission of the evidence because of his lack of opportunity to prepare to meet it, he must request a continuance. Id. A motion for mistrial will also suffice “as a request for a continuance.” Id. n. 13 (citing West, 553 So.2d at 18 n. 6). However, if the defendant fails to request a continuance, he waives the issue. Id. Following such a request, the State may opt to proceed without the undisclosed evidence, or the trial court must grant the continuance. Furthermore, failure to follow the Box guidelines is prejudicial error, requiring reversal and remand. Id. at 1250 (citing Darghty v. State, 530 So.2d 27, 33 (Miss.1988)).

¶23. During pre-trial motions, the defense requested that the State disclose any impeaching information that it may have obtained through its accident reconstructionist, Kazery. The prosecution responded that it had not received any reports from her at that time, as it was waiting on the report from the defense’s accident reconstructionist. The prosecution informed the trial court that it had not consulted an accident reconstructionist to call in its case-in-chief, and that it would put on Kazery only to provide rebuttal testimony to the defense’s expert testimony. The trial court then directed the prosecution to provide the defense with an idea of what Kazery’s testimony would include after she had a chance to review their expert’s report. At trial, following the testimony of Hannah, the defense rested and the prosecution then called Kazery as a rebuttal witness. The defense did not object or request a continuance before she testified. The record reflects that Kazery submitted her report shortly after receiving Hannah’s report. Kazery testified that she received Hannah’s report on the Friday before trial and faxed her report to the defense on the following Monday morning. While Bell relies on West to support his position that the prosecution violated the discovery rules by failing to provide notice of Kazery’s report until the start of trial, the defense had notice of the prosecution’s rebuttal expert. The defense also was aware that Kazery would not provide her report to be used in rebuttal until she had reviewed Hannah’s report, all of which is evidenced by the pretrial hearing held on May 2. Furthermore, the failure of the defense to object to this testimony or request a continuance waived this issue.

V. Miranda rights

¶24. Next, Bell asserts that his Miranda rights were violated. Bell asserts that Lieutenant Wall did not inform him of any charges against him prior to his giving any statements. Further, Bell asserts that he was held in jail from October 30 until November 3 without counsel and without being informed that he was charged with any crime. Citing Coulter v. State, 506 So.2d 282 (Miss.1987), Bell asserts that the State failed to prove vol-untariness of his statements beyond a reasonable doubt. Bell argues that his statement was not voluntarily given and was a result of coercion by the sheriffs department, and thus the case against him should be dismissed. The State counters that Bell’s statements were voluntarily given to Lieutenant Wall after Bell signed a Miranda waiver. The State also argues that Bell made oral statements to Officer Reeves at the scene that Hurst lost control of the four-wheeler, causing the accident. The State submits that these initial statements were non-custodial as they were iii response to preliminary questions asked to assist in the investigation of a death at the scene of a wreck. The State further asserts that the trial court properly found no due process violation when Bell made his written statement to Lieutenant Wall.

¶ 25. This Court has held that to be subject to custodial interrogation, one must be both in custody and undergoing interrogation. A subject is in custody when his right to leave freely has been restricted. Roberts v. State, 301 So.2d 859, 861 (Miss.1974). The accused is subject to interrogation when he is questioned by the police or the functional equivalent. Wilson v. State, 936 So.2d 357, 362 (Miss.2006) (citing Pierre v. State, 607 So.2d 43, 52 (Miss.1992)).

¶ 26. The State has the burden of proving the voluntariness of a confession. Agee v. State, 185 So.2d 671, 673 (Miss.1966). This burden is met by the testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward. Morgan v. State, 681 So.2d 82, 89 (Miss.1996) (citing Agee, 185 So.2d at 673). This creates a prima facie case for the State on the question of voluntariness. Id. When objection is made to the introduction of the confession, the accused is entitled to a preliminary hearing on the question of the admissibility of the confession, which is conducted in the absence of the jury. Id. After the State has made out a prima facie case as to the voluntariness of the confession, if “the accused offers testimony that violence, threats of violence, or offers of reward induced the confession, then the State must offer all the officers who were present when the accused was questioned and. when the confession was signed, or give an adequate reason for the absence of any such witness.” Id. (citing Lee v. State, 236 Miss. 716, 112 So.2d 254 (1959)). We also have held that “the resolution of conflicting testimony regarding voluntariness is a question of fact to be resolved by the trial judge at the suppression hearing.” Id. (quoting Chase v. State, 645 So.2d 829, 841 (Miss.1994)); see also Veal v. State, 585 So.2d 693, 697 (Miss.1991) (this Court will not reverse trial court on conflicting testimony as to whether coercion used to obtain confession).

¶ 27. The trial court held a preliminary hearing on May 2 on Bell’s motion to suppress his statements to the investigators. After hearing testimony from Officer Reeves, Sergeant John Stoll and Lieutenant Wall, who were present when Bell made the statements in question, it denied the motion to suppress. As to the oral statement made to Officer Reeves, the trial court denied suppression, as there was no evidence that Bell was in any type of custodial interrogation or being held at the time when Officer Reeves was making the initial inquiry as to what happened. The trial court found that the written statement was given after Bell was fully advised of his Miranda rights and voluntarily waived those rights. Therefore, we find Bell’s right to a preliminary hearing on the question of the admissibility of the confession was fully satisfied.

¶ 28. At trial, Lieutenant Wall testified that Bell signed a statement acknowledging his Miranda rights as well as a waiver of those rights at 4:50 p.m. on November 1, 2004, prior to writing his voluntary statement at 5:30 p.m., which also is documented by State’s Exhibits 29 and 30. Based on this testimony, we find that the State made out its prima facie case on the question of voluntariness. However, Bell testified that he was forced to give his confession to the officers. Therefore, based on Bell’s testimony, the State was then required to offer as witnesses all- the officers who were present when the accused was questioned and when the confession was signed. Morgan, 681 So.2d at 89. The State offered all the officers who were involved in the questioning of Bell. The testimony of Lieutenant Wall and Officer Stoll, who conducted the interview, Chief Deputy Tim Wroten and Sheriff Perkins, who did not participate in the interview but were in and out of the interview room, fails to suggest that any threats or violence were used in obtaining Bell’s voluntary statement. Therefore, we find that the State met its burden of proving the voluntariness of Bell’s confession. As the record supports the trial court’s admission of Bell’s statements, we find this issue lacks merit.

YI. Initial Appearance

¶ 29. Bell argues that he was improperly held in jail for more than forty-eight hours without the benefit of an appearance, in which time he was questioned and forced to give a statement without the benefit of an attorney. Bell cites Abram v. State, 606 So.2d 1015, 1029 (Miss.1992) for support. The State asserts that the record reflects that Bell’s non-custodial oral statement was given on October 30, 2004, and his post-Miranda statement was given within two days of the wreck and death of Hurst, on November 1, 2004. Further, Lieutenant Wall testified that when he and Officer Stoll introduced themselves to Bell before the interview, they explained to Bell that they were there to talk to him about being in jail for murder. The State also argues that there is no evidence of coercion or suggestions being made to Bell prior to his statements or unnecessary delay in bringing Bell before a magistrate.

¶ 30. Rule 6.03 of the Uniform Rules of Circuit and County Court provides that “[e]very person in custody shall be taken, without unnecessary delay and within forty-eight hours of arrest, before a judicial officer or other person authorized by statute for an initial appearance.” Bell was arrested on October 30, 2004, and was given an initial appearance on November 3, a period exceeding the time frame in Rule 6.03. However, despite Bell’s allegation that he was held in jail for three days without being informed of the charges against him, the record shows that Bell was arrested at 11:20 p.m. on October 30, was interviewed November 1 at 4:50 p.m., and gave his voluntary statement at 5:30 p.m., after signing a waiver of his Miranda rights, a period clearly within forty-eight hours.

¶ 31. Bell relies on Abram, where this Court found reversible error in part due to failure to provide an initial appearance according to Rule 6.03. However, in Abram, this Court found that the confession was coerced, and that the State would not have obtained the uncounseled confession if the defendant had been provided a timely initial appearance and access to counsel. Abram, 606 So.2d at 1029. This Court held that where the defendant’s conviction relied solely upon his confession, it was reversible error for the State to fail to provide an initial appearance when a judge was available at all times. Id. In contrast to Abram, Bell’s conviction did not rely solely upon his confession. See supra Issue I.

¶ 32. In Jones v. State, this Court went through a detailed analysis of whether the failure to provide a defendant with an initial appearance within forty-eight hours was prejudicial to the defendant. 841 So.2d 115, 131-134 (Miss.2003). It is well-established that the failure to provide an initial appearance for an accused within the time provided is not, in itself, a reason to suppress a confession. Id. (citing Davis v. State, 743 So.2d 326, 337 (Miss.1999)). In Morgan v. State, 681 So.2d 82 (Miss.1996) and Veal v. State, 586 So.2d 693 (Miss.1991), this Court found that a violation of Rule 6.03 alone will not result in the suppression of evidence or reversible error where the defendant was informed of his rights and made a knowing and voluntary waiver. Jones, 841 So.2d at 132.

¶ 33. Furthermore, in Lawrence v. State, 869 So.2d 353, 354 (Miss.2003), this Court found that although Rule 6.03 was violated, there was no Fourth Amendment violation for failure to give the defendant an initial appearance until six days after his arrest. In this case, as in the case at hand, the defendant was given his Miranda rights and waived his right to an attorney prior to his confession. Id. This Court stated that it is clear from Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), that “the States certainly have the right to enact rules and procedures to afford more rights than constitutionally required to those citizens who are criminally charged. However, when, as here, such a rule is enacted, and then violated, that rule violation does not necessarily rise to the level of a constitutional violation.” Lawrence, 869 So.2d at 356. Mississippi has adopted a procedure for a fair and reliable determination of probable cause by a judicial officer promptly after arrest via Rule 6.03. Id. (see also County of Riverside v. McLaughlin, 500 U.S. 44, 53-55, 111 S.Ct. 1661, 1668-69, 114 L.Ed.2d 49 (1991)). This Court held that “[ijf the procedure of Rule 6.03 is followed, the Fourth Amendment rights of the accused are protected; however, the converse does not necessarily follow — failure to follow the exact procedure of Rule 6.03 does not necessarily result in a Fourth Amendment violation.” Id.

¶ 34. As discussed in Issue V, the trial judge found that Bell’s statements were admissible because Bell had been advised of his right to counsel and he knowingly, intelligently and voluntarily waived this right before making his voluntary statement on November 1. We uphold the trial court’s decision, as we find no evidence of coercion and find that Bell’s written statement was voluntarily given within forty-eight hours of his arrest. Therefore, this issue is without merit.

VII. Spoliation of the evidence

¶ 35. Finally, Bell argues that the destruction of the rearview side mirror of the truck violated his due process rights. Bell argues that the sheriffs department did not examine the truck or four-wheeler. The Amite County Sheriffs Department stored the truck for approximately three to four days, photographed it, then released it to the owner, Chad Stutzman. On April 10, 2006, the trial court held a motion hearing on this matter. At this hearing, the prosecution stated that the truck was owned by Stutzman, Hurst’s employer, and that it was used daily in Stutzman’s business. The prosecution informed the trial court that it had contacted Stutzman and informed him that the defense’s expert wished to examine the truck. The prosecution also informed the defense that the truck was located on the premises of the owner for its inspection; however, the defense had done so at that time. The prosecution pointed out that Stutzman had replaced the broken mirror, therefore the original mirror was not available for viewing.

¶ 36. After hearing both sides’ arguments, the trial court instructed the prosecution to ensure that the truck was produced for inspection and that all information concerning the broken mirror was available to the defense. The record reveals that Stutzman put the truck back to work after it was released. He had the broken mirror replaced, and the remnants were discarded by his crew. Stutzman could not account for the remnants, as they were discarded in the woods where his crew was working. Since that time, the owner of the property has cleared and burned off the property.

¶37. The State argues that, although Hannah testified that he thought having the broken mirror would have helped his accident scene investigation, there was no statement in the record showing how this would have helped Bell’s defense. Relying on Mason v. State, 440 So.2d 318, 319 (Miss.1983), the State argues that facts which are not supported by the record should be ignored on appeal. As such, the State argues that there is no evidence that the broken mirror was exculpatory, or that the prosecution had anything to do with its not being available for inspection or testing.

¶ 38. In Murray v. State, we clarified three requirements to find a due process violation by the State in a preservation of evidence case: (1) the evidence in question must possess an exculpatory value that was apparent before the evidence was destroyed; (2) the evidence must be such that the defendant would be unable to obtain comparable evidence by other reasonably available means; and (3) the prosecution’s destruction of the evidence must have been in bad faith. Murray v. State, 849 So.2d 1281, 1286 (Miss.2003) (citing State v. McGrone, 798 So.2d 519, 523 (Miss.2001)).

¶ 39. Although both sides and their experts disagree as to the exculpatory value of the mirror, there is no need to inquire into the mirror’s exculpatory value for the purpose of determining whether a due process violation occurred, because Bell fails to meet the last two prongs of the test. First, the State photographed the broken side mirror from two different angles. These photographs were admitted into evidence. Hannah testified that it would have been important to have seen the actual, damaged mirror because it is hard to tell depth perception through the pictures. However, Hannah went on to admit that photographs as well as physical evidence are both reliable sources of information, and he has been trained to use both. It should also be noted that the wreck occurred on October 30, 2004; however, Hannah did not receive any information concerning this case until July 2005, several months after Stutzman had repaired the mirror and returned the truck to use.

¶40. With regard to the last prong, bad faith is defined as “not simply bad judgment or negligence, but rather ... conscious doing of a wrong because of dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will.” Murray, 849 So.2d at 1286 (citing Black’s Law Dictionary 139 (6th ed. 1990)). In Tolbert v. State, this Court also stated that an inference that the evidence was favorable to the defense exists only “where the spoliation or destruction was intentional and indicates fraud and a desire to suppress the truth.” Tolbert v. State, 511 So.2d 1368, 1372 (Miss.1987) (quoting Washington v. State, 478 So.2d 1028, 1032-33 (Miss.1985)). There is no evidence that the prosecution intentionally caused the destruction of the mirror or caused it to be unavailable. Neither the prosecution nor the defense was able to use the mirror in the preparation of its case.

¶ 41. The record shows that the defense did not ask to see the truck until November of 2005. The State contacted Stutz-man to get permission for the defense to see the truck, to which he agreed. Stutz-man used this truck in his business during the week, but the truck was readily available for viewing on the weekends. The trial court found that the truck was released to its private owner several days after the wreck and that the damage to the truck was well documented by the numerous photographs in evidence. For these reasons, the trial court denied Bell’s motion to dismiss, finding no willful destruction of the evidence. We find that the trial court did not err in its decision to deny Bell’s motion to dismiss.

CONCLUSION

¶ 42. Based on the foregoing reasons, we affirm the judgment of the Circuit Court of Amite County.

¶ 43. CONVICTION OF MANSLAUGHTER AND SENTENCE OF FIFTEEN (15) YEARS WITH TEN (10) YEARS TO SERVE AND THE REMAINING FIVE (5) YEARS TO BE SERVED ON POST-RELEASE SUPERVISION FOR A PERIOD OF FIVE (5) YEARS UNDER THE SUPERVISION OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED.

WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, DICKINSON, RANDOLPH AND LAMAR, 33., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.


author: DICKINSON, Justice,

text:
    Hector Hernandez GONZALES and Juan Gonzalez-Torres v. STATE of Mississippi.
    No. 2006-KA-01191-SCT.
    Supreme Court of Mississippi.
    Aug. 30, 2007.

      David G. Hill, Oxford, D. Gill Baker, attorneys for appellants.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before SMITH, C.J., DICKINSON and LAMAR, JJ.
   DICKINSON, Justice,

for the Court.

¶ 1. A law enforcement officer stopped a vehicle which did not appear to have a tag. After obtaining consent to search the vehicle, the officer found sixty pounds of marijuana inside. Although the vehicle had no regular tag, it had a temporary tag taped to the back window in the lower-left corner. The question presented is whether the officer lacked reasonable suspicion to stop the vehicle, rendering the search improper and the evidence obtained inadmissible.

STATEMENT OF THE FACTS

¶ 2. While waiting in the median on Highway 78 near Olive Branch, Mississippi, Highway Patrol Trooper M/Sgt. Gayle McMullin observed an east-bound, blue Dodge Durango, which appeared to have no tag displayed. Trooper McMullin stopped the Durango and engaged the driver, identified as Hector Hernandez Gonzales, in a conversation concerning his travel route. Trooper McMullin noted on her initial, written report that, as she questioned Gonzales about his destination, she became suspicious because his demeanor changed. Specifically, she reported that the driver appeared “very nervous” and looked to the passenger, Juan Gonzalez Torres, when questioned about his direction of travel. Trooper McMullin was later to testify, “When I asked him which route he was going, he looked over to the passenger, like to get an idea of where to go or what to say, and by his body language and his nervousness and the odor of marijuana, I called for a canine.”

¶ 3. Trooper McMullin notified Gonzales that she pulled the vehicle over because there was no tag displayed on the vehicle. Gonzales pointed out the temporary paper tag posted on the lower lefthand corner of the rear window of the vehicle. Trooper McMullin testified that she did not see the paper tag until the driver pointed it out to her and she shined her flashlight on the area. Trooper McMullin then radioed Trooper Brian Magee, the canine officer, for backup while she compared the papers Gonzales had given her with the information on the tag. By the time she finished writing out the tag citation, Trooper Ma-gee and the canine arrived.

¶4. The driver, Gonzales, and passenger, Torres, consented to a vehicle search. Trooper Magee found marijuana residue and loose marijuana in the center console area of the vehicle, necessitating a further search. The canine alerted to the back rear passenger door. The vehicle was then taken to a secure location and searched further. The officers found a suitcase in the back seat which contained twenty-five bundles, or roughly sixty pounds, of marijuana.

¶ 5. In January 2005, the DeSoto County Grand Jury returned an indictment against both Gonzales and Torres for possession of a controlled substance with intent to distribute. The defense filed a motion to suppress the evidence, claiming Trooper McMullin did not have reasonable suspicion to stop the vehicle. The trial judge held a suppression hearing and took the testimony of Troopers McMullin and Brian Magee. The judge then requested that the parties brief the issue, which he narrowed to the “actual initial stop and up to the point of where the officer indicate[d] she smelled marijuana.” After full briefing and a review of the pleadings, the trial judge entered an order denying the defendants’ motion to suppress the evidence.

¶ 6. Thereafter, the defendants reached an agreement with the State which resulted in a stipulation of certain factual findings, and an agreement to a bench trial on a new charge of possession of a controlled substance, reserving unto the defendants the right to appeal the issue before us today.

¶ 7. The defendants proceeded to trial on the stipulation, admitting constructive possession of the marijuana. Moreover, the defendants waived their right to a jury and right of confrontation, relying instead on appellate review of the suppression hearing to overturn their convictions. On the record, the defendants’ counsel noted, “our defense in this case is a technical defense, and we’re simply trying to get this case out of the [tjrial [cjourt and into the [ajppellate [cjourt.” The trial judge, upon admitting the stipulation of facts into the record, found sufficient evidence to convict Gonzales and Torres, and sentenced them each to fifteen years in the custody of the Mississippi Department of Corrections.

¶ 8. The defendants assert two errors on appeal: (1) the trial court erred in admitting evidence uncovered after the officer’s basis for pulling the vehicle over proved unfounded, therefore making the stop illegal; and (2) the trial court erred in failing to suppress all statements made prior to the defendants being Mirandized in Spanish.

ANALYSIS
¶ 9. As stated in Carney v. State:
The rule is simple. Unless the marijuana was discovered during a legal search, it may not be seized. If it was illegally seized, it may not be admitted into evidence. It is therefore important to examine the legality of the particular intrusions which enabled the police to see this marijuana to determine if these intrusions were outside the legitimate scope [of the police’s authority].

Carney, 525 So.2d 776, 785 (Miss.1988). Accordingly, this Court must determine whether Trooper McMullin was justified initially in stopping the defendants.

I.

¶ 10. The defendants contend that Trooper McMullin had no “specific and articulable facts” from which a “reasonable suspicion” of a traffic offense or other crime could be gleaned to support and justify a traffic stop or a Terry stop. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The standard of review for reasonable suspicion is somewhat more complicated than other standards by which this Court reviews trial court determinations. The United States Supreme Court has sought to clarify the standard by stating:

The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause.

Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Further, the Supreme Court noted that the “first part of the analysis involves only a determination of historical facts, but the second is a mixed question of law and fact.” Id. Thus, historical facts are reviewed only for clear error, while determinations of reasonable suspicion are reviewed de novo. Id. at 699, 116 S.Ct. 1657; Floyd v. City of Crystal Springs, 749 So.2d 110, 113 (Miss.1999).

¶ 11. The Fourth Amendment to the United States Constitution provides that all persons shall be secure “in their persons, houses, papers, and effects, against unreasonable searches and seizures” and that “no warrants shall issue, but upon probable cause.” U.S. Const., amend. IV; Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) (incorporating the Fourth Amendment to states through the Fourteenth Amendment); see also Miss. Const, art. III, § 23 (1972); Floyd, 749 So.2d at 114 (noting that the Fourth Amendment to the United States Constitution and Article III, Section 23 of the Mississippi Constitution contain almost identical language expressing an individuals right to be free from unreasonable searches and seizures).

¶ 12. Both this Court and the United States Supreme Court have recognized several exceptions to the Fourth Amendment’s general proscription against war-rantless searches. Of interest in this case is the warrant exception for non-custodial investigatory stops, also known as Terry stops.

¶ 13. The United States Supreme Court has noted that swift and necessary actions by officers “must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.” Terry, 392 U.S. at 20, 88 S.Ct. 1868. “To stop and temporarily detain is not an arrest, and the cases hold that given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest.” Singletary v. State, 318 So.2d 873, 876 (Miss.1975). Moreover, the Supreme Court noted that it is imperative that the facts be judged against an objective standard: “Would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate?” Terry, 392 U.S. at 21-22, 88 S.Ct. 1868 (citing Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Beck v. Ohio, 379 U.S. 89, 96-97, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)).

¶ 14. The traditional reasonableness standard under U.S. Supreme Court jurisprudence is determined by balancing an individual’s privacy interests against legitimate governmental interests. See e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652-53, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). To determine whether the search and seizure were unreasonable, the inquiry is two-fold: (1) whether the officer’s action was justified at its inception, and (2) whether it was reasonably related in scope to the circumstances which justified the interference in the first place. Terry, 392 U.S. at 19-20, 88 S.Ct. 1868. In order to satisfy the first prong, the law enforcement officer must be able to point to “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21, 88 S.Ct. 1868.

II.

¶ 15. The defendants assert that their vehicle had a tag in plain view and, therefore, Trooper McMullin had no reasonable suspicion that the vehicle had no tag; and because Trooper McMullin had no probable cause or reasonable suspicion to pull them over, all fruits of the illegal stop should be suppressed. Accordingly, we shall set forth the specific facts and circumstances of the stop.

¶ 16. Trooper McMullin repeatedly stated that she pulled over the defendants’ vehicle because it appeared not to have a tag. Specifically, she testified that upon approaching the driver, she “did not see a tag at all.” Although no evidence of tint rating was elicited at the suppression hearing, testimony indicated that the windows of the Dodge Durango were very dark. Trooper McMullin testified, “After I told Mr. Gonzales the reason for the stop, he pointed out to me that he did have a paper tag on the back window, but I did not see it. The window was very tinted, and I did not see it until I walked back there and looked at it with my flashlight.”

¶ 17. Two photographs of the back of the vehicle showing the tag were introduced. The first was taken from the angle of the Trooper’s car behind the Durango at the time of the traffic stop. While a white rectangle is visible in the lower lefthand corner of the back glass, the numbers or any identifying marks are illegible from that distance. Additionally, it is evident that at least one other set of trooper car lights are shining in that direction, thereby illuminating the windows further. No other tag is displayed on the back tailgate.

¶ 18. The second photograph is a closeup picture of the tag with the numbers clearly visible. It appears that, in this photograph, one light is concentrated in the tag area. Troopers McMullin and Ma-gee noted that the photographs admitted into evidence were taken with many lights shining onto the paper tag, without which the tag was indistinguishable. Interestingly, Trooper McMullin issued a citation to Gonzales for having no tag displayed, even though she noted the temporary tag number on the ticket.

¶ 19. The State contends that, even if the vehicle had a valid tag, it was not “conspicuously displayed,” as required by the statute. Thus, the State argues, Trooper McMullin was within her authority to pull the vehicle over to check for a tag, and to check the expiration of the tag (if found) or to see if it was valid. Therefore, the State maintains, the stop was legal and not at odds with the Fourth Amendment. We agree.

¶ 20. The statute at issue provides that vehicles operated on Mississippi’s highways must have tags “conspicuously displayed on the vehicle being operated in such a manner that it may be easily read.” Miss.Code Ann. § 27-19-323(Rev.2006). In light of this clear statutory language, it is not enough that the vehicle actually had a tag. If the tag was not “conspicuously displayed” and “easily read,” Trooper McMullin was fully justified in making the stop.

¶ 21. Gonzales and Torres argue that because Trooper McMullin’s written report regarding the incident contained no references to her detection of the odor of marijuana, the stop was pretextual. The defendants cite Whren v. United States and United States v. Escalante in support of their position that the traffic stop was illegal. However, both Whren and Esca-lante are distinguishable from this case. In each of those cases, the officer had a suspicion that some type of criminal activity was occurring but was not aware of what that activity was. See Escalante, 239 F.3d at 679; Whren, 517 U.S. at 808, 116 S.Ct. 1769. The officer therefore used the pretext of a traffic stop to further his investigation. In the present case, however, the trial court found that Trooper McMullin reasonably suspected the Dodge Durango had no tag. The record contains ample evidence to support that finding, and it will not be disturbed on appeal.

¶ 22. The defendants also cite cases in which this Court and the Court of Appeals have ruled that actions which do not constitute criminal offenses are not objective bases for a stop, and, therefore, the stops are illegal. McNeely v. State, 277 So.2d 435 (Miss.1973); Couldery v. State, 890 So.2d 959 (Miss.Ct.App.2004). In Couldery, the officer initiated a traffic stop for driving in the left-hand lane on the interstate.- After reviewing the statutory offenses the officer put forth as the basis for the citation, the Court concluded that the actions .of the driver did not constitute a criminal offense — that driving in the left-hand lane on the interstate was not illegal. Therefore, the officer’s misapprehension of the law precluded the stop from being valid. Couldery, 890 So.2d at 963.

¶ 23. Here, Trooper McMullin noted in her initial, written report and testified at the suppression hearing that the purpose for the stop was “no valid tag displayed.” Highway Patrol officers have been given the statutory authority to enforce all traffic laws, rules and regulations of the State of Mississippi. See Miss.Code Ann. § 45-3-21(1)(a) (2007)(Rev.2004). Failure to conspicuously display a tag in such a manner that it may easily be read is an offense under Mississippi Code Section 27-19-323 (Rev.2006). Moreover, Mississippi Code Section 27-19-40 regulates “special in-transit tags” like that at issue here, and requires that such tag be “properly displayed” and “displayed in plain view.” See Miss.Code Ann. § 27-19-40(1), (1)(c), (4)(Rev.2006).

¶ 24. Trooper McMullin testified she stopped the Dodge Durango because she suspected a violation of these laws. The statutes require not only the existence of a valid tag, but also that the tag be displayed in plain view. Evidence was produced that the Dodge Durango’s windows were tinted, making the tag difficult to see or read. Indeed, even though a valid tag was taped inside the back window of the vehicle, the trooper issued a traffic citation for violation of the statute.

¶ 25. From the evidence in the record, we cannot say that the trial court committed clear error in finding reasonable suspicion to make the stop. Thus, the stop was justified at its inception, and the State has satisfied the first prong.

¶ 26. Additionally, because the subsequent search of the vehicle was incidental to the officer smelling marijuana emanating from the vehicle, and valid consent to search was given by the defendants, an analysis of the second prong is unnecessary. Having found the initial stop reasonable, we affirm the trial court’s admission of evidence.

IV.

¶ 27. The defendants next contend that the trial court erred in failing to suppress all statements made prior to their being Mirandized in Spanish. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After a thorough review of the record, however, we were unable to find where the trial court considered any statements made prior to the defendants being notified of their Miranda right in Spanish. Indeed, the record is clear-the trial judge based all findings on the stipulation of facts submitted into evidence by the defendants themselves.

¶28. Where an argument has never been raised before the trial court, we repeatedly have held that “a trial judge will not be found in error on a matter not presented to the trial court for a decision.” Purvis v. Barnes, 791 So.2d 199, 203 (Miss.2001). This issue is not properly before this Court, thus, it is without merit.

CONCLUSION

¶ 29. We find that Trooper McMullin was justified in her reasonable suspicion that the defendants’ vehicle bore no tag. Therefore, the initial stop was legal, because the trooper could articulate an objective basis for the traffic stop. Because the issue of whether the State could introduce statements made before the defendants were Mirandized in Spanish was not presented to the trial court, this Court is precluded from addressing it on appeal.

¶ 30. AS TO HECTOR HERNANDEZ GONZALES: CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE, TO-WIT: MARIJUANA, FIVE(5) KILOGRAMS OR MORE AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. UPON RELEASE, THE APPELLANT IS PLACED UNDER FIFTEEN (15) YEARS OF POST-RELEASE SUPERVISION, WITH CONDITIONS. SAID SENTENCE SHALL RUN CONSECUTIVE TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED. APPELLANT SHALL BE GIVEN CREDIT FOR 322 DAYS TIME SERVED. AS TO JUAN GONZALES-TORRES: CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE, TO-WIT: MARIJUANA, FIVE (5) KILOGRAMS OR MORE AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. UPON RELEASE, THE APPELLANT IS PLACED UNDER FIFTEEN (15) YEARS OF POSTRELEASE SUPERVISION, WITH CONDITIONS. SAID SENTENCE SHALL RUN CONSECUTIVE TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED. APPELLANT SHALL BE GIVEN CREDIT FOR 348 DAYS TIME SERVED.

SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, RANDOLPH AND LAMAR, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . The United States Supreme Court has noted that background facts and inferences made by local trial judges and law enforcement officers provide the context for the historical facts, and “when seen together ... deserve deference.” Ornelas, 517 U.S. at 699, 116 S.Ct. 1657.

      . The Mississippi Supreme Court has recognized exceptions to the warrantless search prohibition in the following cases, inter alia: White v. State, 842 So.2d 565 (Miss.2003) (good faith exception); Shook v. State, 552 So.2d 841 (Miss.1989) (consent exception); Taylor v. State, 733 So.2d 251 (Miss.1999) (exigent circumstances exception and plain view exception).

      . Throughout the record, Trooper McMulllin never wavered in this assertion. In her initial written report, she specifically noted that the Dodge had "no tag displayed.” Additionally, at the suppression hearing, McMullin repeatedly testified to this fact.
      Q: Tell me what the basis of the stop was on that evening.
      A: He did not have a tag, proper tag displayed on the vehicle.

      . 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

      . 239 F.3d 678, 680-81 (5th Cir.2001).