author: WALLER, Presiding Justice,

text:
    Perry ARMSTEAD v. STATE of Mississippi.
    No. 2007-KA-00238-SCT.
    Supreme Court of Mississippi.
    April 3, 2008.

      Office of Indigent Appeals by Brenda Jackson Patterson, Attorney for Appellant.
    Office of the Attorney General by John R. Henry, Attorney for Appellee.
    Before WALLER, P.J., CARLSON and LAMAR, JJ.
   WALLER, Presiding Justice,

for the Court.

¶ 1. Perry Armstead was tried and convicted in the Oktibbeha County Circuit Court on one count of sale or transfer of cocaine and one count of possession of cocaine. Armstead was sentenced to fourteen years for the sale of cocaine and three years for possession of cocaine, with the sentences to run consecutively. We affirm.

FACTS

¶ 2. On the morning of March 16, 2006, Tretis Anderson, an agent with the Mississippi Bureau of Narcotics (MBN), and Maurice Johnson, a sergeant with the Starkville Police Department, solicited Cynthia Hamilton, a confidential informant, to purchase forty dollars’ worth of crack cocaine from Armstead. At the pre-buy meeting at Hamilton’s home, Agent Anderson and Officer Johnson searched Hamilton’s person; wired her with a camera and tape recorder; gave her forty dollars; and listed the serial numbers on each of the bills.

¶ 3. Hamilton called Armstead and told him that she wanted to' buy forty dollars’ worth of crack cocaine. Hamilton and Officer Johnson recognized Armstead’s voice on the phone based on their prior encounters with him. Agent Anderson and Officer Johnson then drove Hamilton down the street and dropped her off so that she could walk to Armstead’s home. As Hamilton approached Armstead’s door, a voice over the home’s intercom system told her to “hold on.” Hamilton and Officer Johnson identified the voice as Armstead’s. Shortly thereafter, Jaquette Miller came to the door, handed Hamilton the cocaine, and took the forty dollars. Hamilton returned to the vehicle and told Agent Anderson and Officer Johnson that Arm-stead was not there yet. At trial, Hamilton explained her statement to mean that Armstead, himself, had not served her.

¶ 4. Following the sale, Agent Anderson, Officer Johnson, and Hamilton returned to Hamilton’s home. Hamilton called Arm-stead’s cell phone, but no one answered. When Armstead called back, Hamilton told him “that’s how I like being served,” and said that she would be back for more.

¶ 5. Agent Anderson and Officer Johnson used the sale as a basis for obtaining a search warrant for Armstead’s home. At about 7:30 p.m. that same evening, MBN, the Starkville Police Department, and the Okitibbeha County Sheriffs Department executed the search warrant. Officers located Armstead in his bedroom, just as he was walking out of an adjacent bathroom. In this bathroom, officers found twenty-three dollars (a twenty and three ones), the serial numbers of which matched the bills used in the earlier sale to Hamilton. Narcotics were also found in the home, including a small amount of cocaine in a black film canister in the kitchen cabinet.

¶ 6. After the home was secured, the males were taken to the carport area and the females were taken into the living room. Armstead gave a statement that the drugs belonged to him.

¶ 7. Armstead was indicted on nine counts. The State agreed to sever all the counts and prosecute Armstead only on count seven, the sale or transfer of cocaine, and count eight, possession of cocaine. Armstead filed a motion to sever counts seven and eight as well, which the trial court denied. For trial purposes, counts seven and eight were styled as counts A and B, respectively.

¶ 8. The jury found Armstead guilty on counts A and B. For the sale of cocaine in count A, Armstead was sentenced to fourteen years in the custody of the Mississippi Department of Corrections and fined $5,000. For possession of cocaine in count B, Armstead was sentenced to three years in the custody of the Mississippi Department of Corrections, to be served consecutively with the sentence in count A.

¶ 9. Armstead filed a motion for new trial or, in the alternative, a judgment notwithstanding the verdict, which the trial court denied on February 2, 2007.

¶ 10. On appeal, Armstead raises two issues: (I) whether Armstead was informed of his Miranda rights, and if so, whether he made a knowing, intelligent, and voluntary waiver of such rights; and (II) whether Armstead’s conviction for the sale of cocaine in count A should be reversed due to the prejudice caused by the admission of Armstead’s confession in count B.

DISCUSSION

I. Whether Armstead was informed of his Miranda rights, and if so, whether he made a knowing, intelligent, and voluntary waiver of such rights.

¶ 11. The State must prove beyond a reasonable-doubt all facts prerequisite to the admissibility of a confession. McCarty v. State, 554 So.2d 909, 911 (Miss. 1989) (citing Gavin v. State, 473 So.2d 952, 954 (Miss.1985)). As the trier of fact, the trial judge must first determine whether the defendant was advised of his Miranda rights. Chim, 972 So.2d at 603 (citing Baldwin v. State, 757 So.2d 227, 234 (Miss.2000)). The trial judge must then ascertain, based on the totality of the circumstances, whether “the defendant’s statement was freely and voluntarily given, and was not the result of force, threat, or intimidation.” Baldwin, 757 So.2d at 235 (citing Smith v. State, 737 So.2d 377, 382 (Miss.Ct.App.1999)). If the statement is admitted, this Court will not reverse so long as the finding is based on appropriate principles of law and supported by substantial evidence. Chim, 972 So.2d at 604 (citing Holland v. State, 587 So.2d 848, 860 (Miss.1991)).

¶ 12. Armstead filed a pre-trial motion to suppress his statement that the drugs in the house belonged to him. At a hearing conducted outside the presence of the jury, testifying officers gave contradictory testimony regarding the circumstances surrounding Armstead’s statement.

¶ 13. Eddie Hawkins, an agent with MBN at that time, testified that he read Armstead his rights after Armstead had been brought outside under the carport. Armstead indicated that he understood his rights and had no further questions. According to Agent Hawkins, a short time later, Officer Johnson walked outside and told other officers about the marijuana and cocaine that had been found inside the house. Armstead then made a statement that everything in the house belonged to him and that no one else at the house, including his wife, had anything do with it. Agent Hawkins said that Officer Johnson did not specifically question Armstead, but that Armstead responded spontaneously to Officer Johnson’s general statement about drugs being found in the house.

¶ 14. Officer Johnson testified that he heard Agent Hawkins advise Armstead of his rights. Officer Johnson stated that, “I asked [Armstead] whether or not his wife had anything to do with anything inside the house, and that’s when [Armstead] made the comment about the house being in his name and that it was his house and everything in the house belonged to him.” Officer Johnson said that neither he nor any other officer threatened to arrest anyone, and that Armstead never requested an attorney or expressed a desire to remain silent.

¶ 15. Clay Moore with the Starkville Police Department testified that he had been going back and forth from the carport area and could not recall having heard anyone read Armstead his rights. Officer Moore said that he overheard the conversation between Officer Johnson and Arm-stead. According to Officer Moore, Arm-stead initially denied, but then admitted that the drugs were his and that he’d been a user for years. Officer Moore stated, “I did hear [Officer Johnson] make a comment about [Armstead’s] wife, you know, that his wife could possibly being [sic] charged as well with the dope. And then Mr. Armstead made the comment that, you know, no, you know, this is my dope, you know....”

¶ 16. Agent Anderson was also called to testify, but he could not recall any conversations that Officer Johnson or Agent Hawkins had with Armstead.

¶ 17. The trial court ruled Armstead’s statement to be admissible. The trial court found that Armstead’s statements had not been procured through custodial interrogation, but were in response to an on-scene question by a law enforcement officer after Armstead had been read his Miranda rights. Additionally, the trial court found that Officer Johnson’s statement did not rise to the level of threat or intimidation that would warrant suppression of the statement.

¶ 18. Armstead first argues that the admission of his statement is subject to a heightened standard of review because the trial court failed to make specific findings of fact. This argument is without merit because the trial court did make specific findings of fact in ruling Arm-stead’s statements to be admissible. The trial judge stated, in pertinent part, that:

[Armstead], in the Court’s opinion, was fully advised of his constitutional rights. He responded to an on-scene question by a law enforcement officer after being advised of his constitutional rights. And the Court does not feel that the statement by the officer in any way rises to the level of any threat, intimidation that would warrant the suppression of the statement by [Armstead] to the officers.

¶ 19. Therefore, a heightened standard of review is not required.

¶ 20. Second, Armstead argues that he was not advised of his Miranda rights prior to questioning. Armstead contends that Officer Johnson did not actually witness or hear Agent Hawkins read Armstead his rights, but merely relied on Agent Hawkins’s past practice of reading individuals their rights. Regardless, Arm-stead argues that he should have been given new Miranda warnings prior to Officer Johnson’s questioning.

¶ 21. Agent Hawkins testified that after the residence had been secured, he “read [Armstead] his rights and made sure that [Armstead] fully understood what his rights were.” Officer Johnson stated unequivocally that he overheard Agent Hawkins read Armstead his Miranda rights, although he could not remember specifically where this had taken place. While Officer Johnson referenced Agent Hawkins’s standard procedure of reading people their rights, this was not the basis for Officer Johnson’s testimony.

¶ 22. Armstead submits that this case is analogous to McCarty v. State, 554 So.2d 909 (Miss.1989). In McCarty, the defendant was read his Miranda rights during his first interrogation, but not during his third interrogation, some three-and-a-half-to-four hours later, in which he made incriminating statements. McCarty, 554 So.2d at 911-13. This Court held that the defendant had not been adequately warned of his rights against self-incrimination. Id. at 913.

¶ 23. The subject case is distinguishable from McCarty in that only one interrogation occurred—there were not multiple interrogation sessions. See Ford v. State, 555 So.2d 691, 697 (Miss.1989). Additionally, only a short time transpired between the time that Agent Hawkins read Arm-stead his Miranda rights and Officer Johnson’s questioning. See Johnson v. State, 475 So.2d 1136, 1144-45 (Miss.1985).

¶ 24. Thus, we find that there is substantial evidence to support the trial court’s finding that Armstead was adequately advised of his constitutional rights under Miranda.

¶ 25. Finally, Armstead argues that the State failed to prove beyond a reasonable doubt that he voluntarily and knowingly waived his privilege against self-incrimination. Armstead asserts that his statements were coerced by Officer Johnson’s threat to arrest Armstead’s wife if Armstead did not confess that the drugs belonged to him.

¶26. Threats to arrest a defendant’s family member(s) do not render a confession involuntary so long as probable cause exists to arrest such persons. Allen v. McCotter, 804 F.2d 1362, 1364 (5th Cir.1986) (citing United States v. Diaz, 733 F.2d 371, 374-75 (5th Cir.1984) (noting that a high standard of good faith is required in the use of such techniques)).

¶ 27. We find that probable cause existed to arrest Armstead’s wife. Cocaine was found in the kitchen, a common area of the home. Armstead’s wife had been living in the home and was listed on the lease. “A presumption of constructive possession arises against the owner of premises upon which contraband is found.” Smith v. State, 839 So.2d 489, 497 (Miss.2003) (citing Hamm v. State, 735 So.2d 1025, 1029 (Miss.1999)). Accordingly, we find Officer Johnson’s statements insufficient to render Armstead’s statement involuntary.

¶ 28. In sum, the trial court’s ruling that Armstead was read Miranda rights, and that he made a knowing, intelligent, and voluntary waiver of such rights, is in accordance with the correct principles of law and is supported by substantial evidence. The fact that Armstead gave no written, signed, waiver of rights is of no consequence. Davis v. State, 320 So.2d 789, 790 (Miss.1975).

II. Whether Armstead’s conviction for the sale of cocaine in count A should be reversed due to the prejudice caused by the admission of Armstead’s confession in count B.

¶ 29. Armstead argues that he was materially prejudiced in his right to a fair trial on the sale-of-cocaine charge in count A because his confession in count B would not have been admissible at a trial on count A alone.

¶ 30. For support, Armstead relies on Bennett v. State, 451 So.2d 727 (Miss.1984). However, the Court of Appeals has pointed out that Bennett was decided prior to the enactment of Mississippi Code Annotated Section 99-7-2, which permits the prosecution of more than one charge in the same trial where “(a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan.” Wright v. State, 797 So.2d 1028, 1030 (Miss.Ct.App.2001) (quoting Miss.Code Ann. § 99-7-2 (Rev.2007)); see also Uniform Rules of Circuit and County Court Practice Rule 7.07.

¶ 31. There is no authority for restricting the multi-count-indictment statute because some element of proof necessary as to one charge would be inadmissible on another charge if tried separately. Wright, 797 So.2d at 1030. Whenever a defendant is tried on a multi-count indictment, the possibility that a jury will infer guilt on all counts from guilt on one individual count does not warrant reversal so long as the jury is instructed that each count must be considered separately, and each count is supported by substantial evidence and proven beyond a reasonable doubt. United States v. Meriwether, 486 F.2d 498, 504 (5th Cir.1973).

¶ 32. In this case, the jury was instructed that each count should be considered separately. Furthermore, substantial evidence supports Armstead’s conviction on count A for the sale of cocaine. Accordingly, we find that Armstead’s conviction on count A should not be reversed.

CONCLUSION

¶ 33. We find that the trial court’s admission of Armstead’s confession was in accordance with the correct principles of law and was supported by substantial evidence. Additionally, Armstead’s confession as to count B did not materially prejudice his right to a fair trial on count A, because the jury was instructed to consider each count separately and substantial evidence supports Armstead’s conviction on count A. Therefore, we affirm Arm-stead’s conviction.

¶ 34. COUNT I: CONVICTION OF SALE OF COCAINE AND SENTENCE OF FOURTEEN (14) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND PAYMENT OF A FINE OF $5,000.00, AFFIRMED. SAID SENTENCE SHALL RUN CONSECUTIVELY WITH THE SENTENCE IMPOSED IN COUNT II. COUNT II: CONVICTION OF POSSESSION OF COCAINE AND SENTENCE OF THREE (3) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SAID SENTENCE SHALL RUN CONSECUTIVELY WITH THE SENTENCE IMPOSED IN COUNT I.

SMITH, C.J., DIAZ, P.J., EASLEY, CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. GRAVES, J„ CONCURS IN RESULT ONLY.

      . Hamilton thought that she had been given a twenty, two fives, and ten ones. Anderson, on the other hand, thought that she had been given a twenty, a ten, a five, and five ones.

      . Hamilton’s home was only about ten to fifteen minutes' walking distance from Arm-stead’s home.

      . Armstead had an audio and video surveillance system at his home, including a monitor inside his bedroom. However, it is not clear whether the video was working on the morning of the sale.

      . Hamilton and Officer Johnson identified Miller as a "runner.” According to Officer Johnson, drug dealers frequently use runners in order to avoid appearing on surveillance videos themselves.

      . A total of $1,163 was found in the home, including $132 found on Armstead's person.

      . A total of seven people, including Armstead, were at the home at the time of the search.

      . A nolle prose was entered on count nine, for possession of marijuana, based on Armstead’s guilty plea to that charge.

      ."In Miranda, the United States Supreme Court held that the Fifth and Fourteenth Amendments' prohibitions against compelled self-incrimination require that, prior to custodial interrogation, the accused must be advised of his right to remain silent and his right to counsel.” Chim v. State, 972 So.2d 601, 603 (Miss.2008) (citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)).

      . While not raised as an assignment of error, we note that the trial court implied that Miranda was not required under the circumstances. The trial judge specifically stated "[t]he questioning of [Armstead] by the officer was on scene while the search was being conducted. It was not a custodial interrogation away from the scene at a police station or in an interview.” (Emphasis added).

        Miranda does not apply in "a non-custodial setting where interrogation is investigatory in nature (general on-the-scene-investigation).... ” Hopkins v. State, 799 So.2d 874, 878 (Miss.2001) (quoting Porter v. State, 616 So.2d 899, 907 (Miss.1993)). The test for whether a person is in custody is whether a reasonable person, based on the totality of the circumstances, would feel that he was in custody, i.e. that he was going to jail and not just being temporarily detained. Hunt v. State, 687 So.2d 1154, 1160 (Miss.1996) (citing Compton v. State, 460 So.2d 847, 849 (Miss.1984)). Factors to consider include “the place and time of the interrogation, the peo-pie present, the amount of force or physical restraint used by the officers, the length and form of the questions, whether the defendant comes to the authorities voluntarily, and what the defendant is told about the situation.” Hopkins, 799 So.2d at 878 (citing Hunt, 687 So.2d at 1160).
      Armstead was handcuffed and questioned under his carport soon after law enforcement officers had executed the search warrant. While various law enforcement officers were going in and out of the house, at least four officers were in the vicinity where Armstead was being questioned. Officer Johnson placed a copy of the search warrant in a chair next to Armstead so that he could read it and be aware of the situation.
      Based on the totality of the circumstances, we find that Armstead was subjected to a custodial interrogation and, therefore, Miranda was required. Nevertheless, this issue is of no consequence, because the trial court found that Armstead had been read his Miranda rights.

      . As noted by the Court of Appeals, ''[i]t is, in fact, difficult to envision a trial of multiple charges where some evidence relevant to one charge would not be subject to a Rule 404(b) challenge as to the other charge, no matter how closely related in time and circumstance the two alleged crimes might be.” Wright, 797 So.2d at 1030.


source: Caselaw Access Project

author: CARLSON, Justice,

license: Public Domain

text:
    In the Interest of N.W.
    No. 2007-CA-00709-SCT.
    Supreme Court of Mississippi.
    April 3, 2008.

      John R. Reeves, J. Justin King, attorneys for appellant.
    S. Malcolm 0. Harrison, attorney for appellee.
    Before WALLER, P.J., CARLSON and LAMAR, JJ.
   CARLSON, Justice,

for the Court.

¶ 1. The Hinds County Youth Court entered an order finding a minor child to have been physically abused by his father and giving custody of the minor child to his mother. The minor child’s father appeals to this Court, seeking the return of custody to him; however, the father likewise asserts that he did not receive notice of the adjudicatory hearing or other hearings preceding the adjudicatory hearing. Finding error due to the youth court’s failure to provide the required notice to the father prior to its adjudicating custody of the minor child to the mother, we reverse and remand.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On September 27, 2006, the County Court of the First Judicial District of Hinds County, Youth Court Division, Judge Houston J. Patton presiding, entered an agreed order finding that it would be in the best interest of a minor child, Nathan, then seven years and seven months of age, for his care and custody to “remain with his natural mother,” but with the father having liberal weekend visitation rights with Nathan. This order also stated that “[t]his custodial arrangement shall be the order of this Court for the next forty-five days and thereafter will revert to the most current Chancery Court Order that is in place at the time this order expires.” Finally, this agreed order provided, inter alia, that the father could not use corporal punishment on Nathan, and that forty-five days from the date of the order, the case would be transferred to chancery court “for any custody or child support issues.”

¶ 3. On February 13, 2007, the County Court of the First Judicial District of Hinds County, Youth Court Division, Judge William Louis Skinner II, presiding, entered an Order Appointing CASA, an Emergency Order, and a Guardian Ad-Litem Order. In the CASA order, the youth court found, inter alia, that the appointment of a Court Appointed Special Advocate was necessary to assist the court in assuring that the best interests of the minor child were protected. The Emergency Order found that probable cause existed to believe that Nathan was physically abused as set out in the Youth Court Act; that based on the emergent nature of the case, Nathan should be placed with his natural mother; and that the order would expire by its terms forty-eight hours after the signing of the order, excluding Saturdays, Sundays and state holidays as provided by statute. The Guardian Ad-Li-tem Order provided that a local attorney would be appointed as Nathan’s guardian ad litem.

¶ 4. Also, on February 13, 2007, the county prosecutor filed in youth court a petition alleging that Nathan was “[p]hysi-cally abused within the meaning of Mississippi Code Annotated Section 43-21-105 (Miss.1981),” and that the “Department of Human Services received a report stating that when the child got ready to take a bath the mother observed bruises on his bottom and legs. [Nathan] stated his father whipped him.” The petition requested that “summons issue to said child and the parents or guardian of said child commanding them to be and appear in said Youth Court to respond to a Petition alleging said child to be physically abused.... ”

¶ 5. On February 15, 2007, Judge Skinner entered a Shelter Hearing Order stating that pursuant to a hearing, the youth court found that probable cause existed to believe that Nathan was a physically abused child pursuant to the Youth Court Act and that the custody of Nathan should be placed with his natural mother pending an investigation by the Hinds County Department of Human Services.

¶ 6. An adjudicatory hearing was conducted on March 13, 2007, in youth court, Judge Skinner presiding, and pursuant to this adjudicatory hearing, Judge Skinner entered an Adjudicatory Order on March 19, 2007. This order stated, inter alia, that (1) upon hearing testimony of witnesses, the. youth court determined that Nathan was a physically abused child under the Youth Court Act; (2) that Nathan should remain in the care and custody of his natural mother; (3) that the father would be allowed only supervised visitation with Nathan; and (4) that Nathan’s father would have no contact with “any agent or parties associated with this case after the work hours of 8:00 a.m. to 5:00 p.m.” Nathan’s father filed a “Motion for New Trial or to Open Case and Take Additional Testimony,” which motion was thereafter denied by Judge Skinner by order entered on March 27, 2007. Nathan’s father timely appealed from the youth court’s order denying his motion for a new trial.

DISCUSSION

¶ 7. The father presents five issues on appeal: (1) whether the youth court had jurisdiction to remove the minor child from his custody; (2) whether the youth court’s order was supported by sufficient evidence; (3) whether the youth court’s decision was consistent with the purpose and spirit of the Youth Court Act; (4) whether the youth court’s decision was based on the terms of an expired and thus invalid order; and (5) whether the youth court’s failure to make findings of fact and conclusions of law was reversible error. Finding one issue to be dispositive, we restate this issue here for the sake of discussion.

WHETHER THE YOUTH COURT HAD JURISDICTION.

¶ 8. Before proceeding further we must set out here “the rest of the story” not yet revealed regarding the facts and proceedings before the youth court. Once this case was submitted to us on appeal, it became necessary to enter two orders directed to the trial court clerk for supplementation of the record. The first order stated that, although the father’s designation of record included, inter alia, “all documents, including pleadings and orders, in the court file after September 15, 2006,” the record was not complete. We stated in this first order that:

Inexplicably, several items which should be in the official record are not. For example, the Notice of Appeal states that the appellant is appealing from the trial court’s March 27, 2007, order denying the appellant’s motion for a new trial; however, while the appellant’s record excerpts include a copy of an “Order Denying Motion for New Trial or To Open Case and Take Additional Testimony”, the very order from which this appeal has been taken is not included in the trial court clerk’s papers as part of the official record. Likewise, while the appellant’s record excerpts include a copy of a “Motion for New Trial or to Open Case and Take Additional Testimony”, this motion is not included in the trial court clerk’s papers as part of the official record. Finally, glaringly absent from the record is a certified copy of the trial court clerk’s docket entries, which inclusion in the record is required by rule regardless of the designation by the parties. Mississippi Rules of Appellate Procedure 10(a).

Accordingly, we directed that the record be supplemented consistent with this order.

¶ 9. Once the trial court clerk supplemented the record pursuant to this Court’s order, we found it necessary to enter a second order, the reason for which will be self-explanatory upon a review of the language contained in this second order, which stated:

On November 29, 2007, the Court entered its Order directing that the record be supplemented since various documents were absent from the record which should have been included based on the appellant’s designation of “[a]ll documents, including pleadings and orders, in the court file after September 15, 2006.” The Order specifically noted that the “Order Denying Motion for New Trial or To Open Case and Take Additional Testimony” was absent from the record. The Order also noted that absent from the record were the “Motion for New Trial or to Open Case and Take Additional Testimony” and the trial court clerk’s docket entries.
The Supplemental Record was filed with the Clerk of this Court on December 19, 2007. Included in the Supplemental Record were: (1) A copy of this Court’s Order of November 29, 2007; (2) the Motion for New Trial or to Open Case and Take Additional Testimony; (3) the Youth Court’s Adjudicatory Order of March 19, 2007; (4) the trial court clerk’s docket entries; and (5) the Clerk’s Certifícate. In this supplementation, the trial court clerk complied with the Order’s directive to provide a copy of the Motion for New Trial or to Open Case and Take Additional Testimony; however, the trial court clerk did not comply with the Court’s directive that the Supplemental Record include the Order Denying Motion for New Trial or To Open Case and Take Additional Testimony. Likewise, the Supplemental Record includes the Youth Court’s Adjudicatory Order of March 19, 2007, which was included in the original record filed with this Court. Thus, notwithstanding the original Designation of Record, and this Court’s Order of November 29, 2007, still absent from the official record before this Court is the Order Denying Motion for New Trial or To Open Case and Take Additional Testimony, which is the very order from which this appeal was taken.
IT IS THEREFORE ORDERED that the trial court clerk shall further supplement the record in this case by filing with the Clerk of this Court a certified copy of the Youth Court’s “Order Denying Motion for New Trial or To Open Case and Take Additional Testimony” by January 7, 2008; and that the appellant shall pay the cost of this Supplemental Record.

The trial court clerk’s second supplementation did indeed include a certified copy of the youth’s court Order Denying Motion for New Trial or to Open Case and Take Additional Testimony.

¶ 10. The youth court docket in this case (which was furnished in the first supplementation) reflects the following:

02/12/07: Order Appt. CASA
02/12/07: Emer. Order
02/12/07: GAL Order
02/12/07: OTF
02/15/07: Shelter Hearing Order
02/20/07: Summons
03/19/07: Adjudicatory Order
03/19/07: Motion for New Trial
03/20/07: Order Appointing Invest. GAL
03/27/07: Order Denying Motion for New Trial

(Emphasis added). We note that Mississippi Rule of Appellate Procedure 10(b)(3) provides in pertinent part that, absent specific designation by a party, the record on appeal shall not include “subpoenas or summonses for any witness or defendant

when there is an appearance for such person.” (Emphasis added).

¶ 11. On appeal, the father protests profusely that he was not given notice of these various hearings. In his appellate brief, the father, through counsel, asserts, inter alia: “On February 12, 2007, the lower court entered an order removing [Nathan] from the custody of [fhe father] and placing him in the temporary cafe and custody of [the mother],” and “[t]he order does not recite that [the father] received notice of the hearing.” The father further asserts that “[o]n February 13, 2007, a Petition was filed with the lower court which requested that ‘summons issue’ to [Nathan’s] parents commanding them to appear at the lower court and' respond to the petition;” that “[o]n February 15, 2007, a Shelter Hearing Order was entered placing [Nathan] in the custody of [the mother];” that “[t]he order does not recite that [the father] received notice of the hearing;” and that “[t]he record is devoid of any process being issued to or served upon [the father].” Finally, Nathan’s-father asserts that:

On March 19, 2007, an Adjudicatory Order was entered by the lower court ordering [Nathan] as a physically abused child. The order placed custody of [Nathan] with [the mother]. The order also limit’s (sic) [the father’s] visitation with [Nathan]. The order does not recite that [the father] received notice of the hearing resulting in the March 19, 2007, order. The record is devoid of any process being issued to or served upon [the father].

(Citations to the record omitted).

¶ 12. We have scoured the scant record in this case and we find nothing before us which contradicts the father’s assertions that he never received notice for these various hearings, including the hearing resulting in the youth court’s entry of the Adjudicatory Order, which is the primary focus of this appeal. Concerning process, or notice, the youth court docket, which we received in the trial court clerk’s first supplementation, merely states “02/20/07: Summons.” This notation on the docket is certainly not proof that the summons was issued, much less served, upon the father as typically would be indicated by the return on the summons, which continues to be glaringly absent in the record.

¶ 13. We also note that in.the appellee’s brief, while the Hinds County Prosecuting Attorney asserts that the youth court had jurisdiction to enter the designated orders, he does not even attempt to rebut the father’s assertions of lack of process/notice, nor does he direct us to one shred of proof in the record that reveals the father ever received notice of any of these hearings.

¶ 14. Returning to Mississippi Rule of Appellate Procedure 10(b)(3), failing specific designation, subpoenas or summonses are not ordinarily included in the record because questions very seldom arise over a witness or a party failing to appear, but in today’s case, the issue of notice upon the father is in the forefront of this appeal. Under the express language of Rule 10(b)(3), any summonses issued in this case, and returns thereon, should have been included in the record, even absent designation, since the record is devoid of any appearance made by the father in the youth court proceedings. On the other hand, we cannot fault the clerk for this failure to include process in the record because the clerk had no reason to know what issues the parties might assert on appeal, so the responsibility to designate the appropriate portions of the record on appeal necessarily falls upon the parties to the appeal, and more specifically, in this case, the father.

¶ 15. Notwithstanding this failure to designate any summonses issued in this case, the lack of proof in the record concerning notice to the father at these various hearings, and most importantly, the adjudicatory hearing of March 13, 2007, causes us to conclude that this case must be remanded. This Court previously has addressed the importance of process and notice to all interested parties in youth court matters:

A minor cannot waive process required by law, and the Court has no jurisdiction of the person until process has been served upon the minor and his parents, or persons standing in loco parentis. The notice to the parents may be waived by them, but not process on the minor.

In Re Edwards, 298 So.2d 703, 704 (Miss.1974). In today’s case, there is nothing in the record to even infer that Nathan’s father waived notice.

¶ 16. We also note a failure of the youth court judge to comply with the provisions of Mississippi Code Annotated Section 43-21-557 (Rev.2004) prior to the commencement of the adjudicatory hearing on March 13, 2007. The transcript of the adjudicatory hearing reveals that, at the commencement of the hearing, Judge Skinner required Nathan’s mother to state her name for the record and her relationship to Nathan. The youth court judge then recognized the Hinds County Prosecutor, who read into the record, verbatim, portions of the petition which he had filed on February 18, 2007. Two witnesses were called to testify. The first witness, presumably a DHS employee, though she was never identified by occupation, was questioned by the county prosecutor and the guardian ad litem. The second witness, an employee of the Children’s Advocacy Center in Jackson, was likewise questioned by the county prosecutor and the guardian ad litem. At the conclusion of this testimony, Judge Skinner permitted Nathan’s mother to make statements to the court concerning Nathan and his best interest. This evidence no doubt depicted Náthan’s father in a very negative light concerning his treatment of Nathan in the past and the prospect of potential violence by the father toward Nathan in the future.

¶ 17. Notwithstanding the evidence adduced at the adjudicatory hearing, which unquestionably was not tested via cross-examination by the father or his lawyer, since the father had no notice of the hearing, we point out the failure of the youth court judge to comply with the statutory mandates found in section 43-21-557, which states in relevant part:

(1) At the beginning of each adjudicatory hearing, the youth court shall:
(a) verify the name, age and residence of the child who is the subject of the cause and ascertain the relationship of the parties, each to the other;
(b) ascertain whether all necessary parties are present and identify all persons participating in the hearing;
(c) ascertain whether the notice requirements have been complied with and, if not, whether the affected parties intelligently waived compliance in accordance with Section 43-21-507;
(d) explain to the parties the purpose of the hearing and the possible dispo-sitional alternatives thereof; and
(e) explain to the parties:
(i) the right to counsel;
(ii) the right to remain silent;
(iii) the right to subpoena witnesses;
(iv) the right to cross-examine witnesses testifying against him; and
(v) the right to appeal.

The record before us reveals that the youth court judge unquestionably failed to comply with these statutory requirements. We have found such noncompliance with these statutory requirements to be reversible error. In Interest of I.G., 467 So.2d 920, 922 (Miss.1985). See also In Interest of C.R., 604 So.2d 1079, 1082 (Miss.1992).

CONCLUSION

¶ 18. The Hinds County Youth Court failed to comply with the statutory requirements to assure notice to the father for the various hearings affecting the custody of his minor son, Nathan, and more specifically, the adjudicatory hearing which ⅛ at the heart of this appeal. We are thus constrained from the record and applicable law to reverse the youth court’s adjudicatory order and to remand this case to the County Court for the First Judicial District of Hinds County, Youth Court Division, for further proceedings consistent with this opinion and the applicable statutes.

¶ 19. Again, we have only a skeletal record before us, but it appears that the last valid chancery court order or youth court order entered awarded custody of Nathan to the natural mother; therefore, pending further proceedings in'the youth court and/or the chancery court, Nathan shall remain in the custody of his natural mother.

¶ 20. REVERSED AND REMANDED.

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

      . To protect the identity of the minor child, he is being identified by use of a fictitious name. See In Re Adoption of D.N.T., 843 So.2d 690, 693 n. 2 (Miss.2003).

      . The Emergency Order was signed on February 12, 2007, and entered on February 13, 2007.

      . See Mississippi Code Annotated Section 43-21-105(m) (Rev.2004) (Supp.2007). .

      . The order being referenced is the Emergency Order which was dated February 12, 2007, and entered on February 13, 2007.

      . We acknowledge that while Mississippi Code Annotated Section 43-21-309 (Rev. 2004) provides for “[rjeasonable oral or written notice” to the parents of any detention or shelter hearing, the record is likewise devoid of any evidence, written or oral, concerning notice to the father.


author: LAMAR, Justice,

text:
    F. Charles PHILLIPS v. MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY, Mississippi Highway Safety Patrol, Joseph W. Seals and Thomas E. Little.
    No. 2007-CA-00227-SCT.
    Supreme Court of Mississippi.
    April 3, 2008.

      Scott Phillips, attorney for appellant.
    William E. Whitfield, III, Kaara L. Lind, Gulfport, attorneys for appellees.
    Before WALLER, P.J., CARLSON and LAMAR, JJ.
   LAMAR, Justice,

for the Court.

¶ 1. Plaintiff F. Charles Phillips seeks to recover damages for injuries sustained when law enforcement officers used physical force during the course of an investigatory stop after mistaking him for a suspect. The ' Circuit Court of Forrest County granted summary judgment for the individual defendants, Mississippi Highway Patrol Officers Joseph W. Seals and Thomas E. Little, and after a bench trial found in favor of the remaining defendants, the Mississippi Department of Public Safety and the Mississippi Highway Patrol. Phillips appeals, claiming that the trial court erred in its application of Mississippi Code Annotated § 11— 46-9(l)(c) under the Mississippi Tort Claims Act.

FACTS

¶2. On October 15, 2003, around 6:45 p.m., a female made a 911 call to the Hattiesburg Police Department, which was recorded on the Hattiesburg Police Department (HPD) radio transmission. She claimed her boyfriend (Jackson) took both sets of keys to her 1992 White Ford Explorer and left in the vehicle. She informed the operator that she “just filed domestic assault charges on him with Cov-ington County.” The Covington County Sheriffs Office initiated'pursuit of Jackson, and HPD took over the pursuit, traveling south on Highway 49, after the suspect reached the city limits of Hattiesburg. The Covington County Sheriffs Office informed HPD that the pursuit had reached speeds of more than 100 miles per hour.

¶ 3. Plaintiff F. Charles Phillips, a reserve Forrest County Deputy Sheriff, was driving from a meeting in Laurel, Mississippi, to his home in Hattiesburg, Mississippi, when he heard of the pursuit on a police radio and decided to help. Phillips was driving a white Ford Escape. He informed Jeffrey Byrd, the Forrest County Sheriffs Office dispatcher, that he was going to be traveling southbound assisting in the pursuit.

¶ 4. Mississippi Highway Patrol (MHP) Troopers Donnie Rayborn, Joseph Seals, and Thomas Little were also engaged in pursuit of the suspect and communicated through the MHP radio. Dispatch informed them that the fleeing suspect had been reported as the perpetrator of a domestic crime earlier that day. Rayborn, ahead of the other troopers and with the suspect in sight, periodically reported his location on the radio. Seals requested the suspect’s vehicle description, and dispatch described the vehicle as a white, 1992 Ford Explorer and informed him that the full registration information was unknown. Communicating over the radio, Rayborn recited the tag number, and the dispatcher repeated the number. Seals testified that he never heard the tag number.

¶ 5. The suspect, with Rayborn following, passed Phillips on the highway. The events that occurred for the next six minutes are disputed.

¶ 6. According to Seals’s testimony, as Seals approached Rayborn from the rear, both traveling in the left lane of traffic, Seals saw Phillips’s white Ford Escape with its hazard lights flashing, traveling south on Highway 49 in the right lane in close proximity to Rayborn. Seals testified that he advised Rayborn to conduct a “rolling roadblock” in order to stop the suspect’s vehicle. Seals believed Rayborn was complying when he continued ahead of Phillips’s vehicle and moved into the right lane. However, Rayborn, was, in fact, continuing after the suspect. Believing Phillips to be the suspect, Seals came alongside Phillips’s car and motioned to and/or spoke to Phillips. After numerous attempts to block Phillips’s vehicle, Seals successfully stopped Phillips on the right shoulder.

¶ 7. Seals exited his patrol car, went to Phillips’s car and opened the driver’s door of Phillips’s vehicle. Phillips, who wearing a coat and slacks, did not show Seals a badge or any identification. Seals testified that he never asked Phillips for identification, told Phillips why he was under arrest or explained to Phillips why he was being detained. Seals also testified that he issued several verbal commands to Phillips, instructing him to exit the vehicle. According to Seals, instead of exiting or placing his hands in a highly visible location, Phillips placed his hands in his lap, which Seals interpreted as a threatening gesture. Due to Phillips’s non-compliance, Seals forcibly removed Phillips from his vehicle and pushed him onto the ground. Seals placed Phillips on his right shoulder and attempted to handcuff him. When Phillips was forced to the ground, his head was on or near the gravel surface abutting the road. Phillips initially failed to comply with Seals’s instruction to provide his hands for handcuffing and, at some point, advised Seals he was unable to comply. Seals and Little testified that Phillips resisted, but together they were able eventually to handcuff Phillips.

¶ 8. Seals testified that Phillips then identified himself as a reserve deputy with the Forrest County Sheriffs Office trying to help with the pursuit. Seals and Little testified that they helped Phillips to his feet, removed the handcuffs and advised him to seek medical attention for his injuries. According to Seals, Phillips’s injuries were all incurred during takedown and handcuffing and were not caused by hitting, beating or choking Phillips. Seals testified that he offered to get an ambulance for Phillips, but Phillips declined the offer. Then, according to Little, Phillips informed the Forrest County dispatcher that he was “ok.” The dispatcher confirmed that Phillips made that statement.

¶ 9. On the other hand, Phillips testified that after it was communicated to him by radio to cease the pursuit, he pulled off onto the right side of the road and stopped his vehicle. Seals then pulled alongside him and motioned for him to pull forward, which he did. Seals exited his vehicle, came over to Phillips’s door and alone forced Phillips to the ground and handcuffed him. Phillips said further that, once Seals had him on the ground, someone grabbed him by the back of the hair and thrust his head twice into the gravel surface on the side of the road and choked him until he went unconscious. After that, he heard the instruction to get up but said he was unable to do so. Phillips was assisted off the ground while handcuffed, and then the handcuffs were taken off, though he testified that he had not identified himself at that point. Phillips testified that he was assisted to his car but no one offered to take him to the hospital or to call an ambulance.

¶ 10. According to the records at the emergency room, Phillips’s injuries on arrival consisted of a hemorrhage in his right eye; a gaping, two-centimeter laceration in the middle of his right eyebrow, which had stopped bleeding; about a one-half-centimeter laceration to the left eyelid just below the eyebrow; and a couple of scattered abrasions to the forehead.

PROCEDURAL HISTORY

¶ 11. Phillips filed suit, alleging negligence, against the defendants, the Mississippi Department of Public Safety and Mississippi Highway Patrol (MHP), Seals, and Little. Phillips alleged that the MHP: (1) failed to have policies and procedures in effect regarding pursuits; (2) failed to train officers adequately regarding pursuits and arrests; and (3) failed to communicate adequately with officers. Phillips also claimed that Defendants Seals and Little: (1) failed to follow policies and procedures in effect, if any, regarding pursuits and arrests; (2) failed to adequately and timely communicate with the MHP troopers and with Phillips; (3) used excessive force in subduing Phillips; and (4) failed to assist Phillips in procuring medical treatment or calling an ambulance for him. The defendants answered, and Seals filed a counterclaim, which was dismissed with prejudice by an agreed final judgment.

¶ 12. Defendants filed a motion to dismiss and/or for summary judgment. The trial court denied the motion as to the MHP, but granted the motion as to the individual defendants, Seals and Little. After a bench trial, the court entered its findings of fact and conclusions of law. The court explained that Phillips failed to prove, as required under the Mississippi Tort Claims Act (MTCA): (1) that Seals and Little were acting in reckless disregard and (2) that Phillips was not engaged in criminal activity at the time he was injured. The court entered its judgment in favor of the defendants and assessed the costs against Phillips. Phillips timely appealed.

DISCUSSION

I. Whether Troopers Seals’s and Little’s Conduct Was in Reckless Disregard of the Safety and Well-being of Phillips.

¶ 13. This Court reviews errors of law de novo, including the proper application of the MTCA, Mississippi Code Annotated sections 11-46-1 et seq. (Rev.2004). City of Jackson v. Powell, 917 So.2d 59 (Miss.2005) (citing City of Jackson v. Brister, 838 So.2d 274, 278 (Miss.2003)). The findings of fact by a circuit court judge, sitting without a jury, will not be reversed on appeal where they are supported by substantial, credible, and reasonable evidence. City of Greenville v. Jones, 925 So.2d 106, 109 (Miss.2006) (citing City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000)).

¶ 14. Phillips’s first assertion is that the trial court’s findings of fact should be subject to a heightened review since he alleges they are adopted verbatim, in pertinent part, from the defendants’ trial bx-ief. Indeed, this Court has held that heightened review was appropriate where the trial judge adopted verbatim a party’s findings of fact and conclusions of law, differing only in that the trial judge filled in the blanks for the percentages of fault apportioned to the parties. Miss. Dep’t of Transp. v. Johnson, 873 So.2d 108, 111 (Miss.2004). However, this case is more akin to Delta Regional Medical Center v. Venton, 964 So.2d 500 (Miss.2007). The Venton Court found deferential review appropriate because, in addition to adoption of some findings from each party’s findings, the trial court included its own findings. Id. at 503-04. The Court rejected the argument that Johnson mandated heightened review in such circumstances. Id.

¶ 15. This case is distinguishable from Johnson. After a careful comparison of the defendant’s trial brief and the trial judge’s findings, we find that, while the trial judge adopted some sentences, portions of sentences and phrases verbatim from the defendant’s trial brief, the majority of the findings are the trial court’s own. Similar to Venton, in this case, the trial judge’s findings of fact consisted mostly of his own findings. Therefore, we find that deferential review of the court’s findings is appropriate.

¶ 16. The MTCA provides the exclusive remedy for Phillips in his claims against the MHP. Miss.Code Ann. § 11-46-7(1) (Rev.2004). The Legislature of this state has expressly determined that as a matter of public policy, the state and its political subdivisions are immune from suit due to any “tortious act or omission” by any employee of the state or its political subdivisions. However, there are exceptions. The MTCA states in pertinent part:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury. ...

Miss.Code Ann. § ll-46-9(l)(c)(Rev.2004).

¶ 17. In order to recover in. this case, Phillips must prove by a preponderance of evidence that the defendants acted in reckless disregard of his safety and that he, the claimant, was not engaged in criminal activity at the time of injury. Simpson v. City of Pickens, 761 So.2d 855, 859 (Miss.2000).

¶ 18. It is undisputed that Seals and Little were acting within the course and scope of their duties relating to police protection. The question is whether they acted in reckless disregard of the safety or well-being of Phillips.

¶ 19. Reckless disregard has been defined by this Court as a higher standard than gross negligence, and it embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act. City of Greenville v. Jones, 925 So.2d 106, 110 (Miss.2006); City of Jackson v. Powell, 917 So.2d 59, 71 (Miss.2005); Collins v. Tallahatchie County, 876 So.2d 284, 287 (Miss.2004). This Court will look to the totality of the circumstances when considering whether someone acted in reckless disregard. City of Ellisville v. Richardson, 913 So.2d 973, 978-979 (Miss.2005); City of Jackson v. Brister, 838 So.2d 274, 279 (Miss.2003) (finding that our case law requires that the circuit judge look at the totality of the circumstances in determining whether the officers acted with reckless disregard to public safety and that he base his findings on substantial, credible, and reasonable evidence). This Court has held that “the nature of the officers’ actions is judged on an objective standard with all the factors that they were confronted with, taking into account the fact that the officers must make split-second decisions.” Powell, 917 So.2d at 72 (citing Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (citing Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968))). “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 -vision of hindsight.” Graham, 490 U.S. at 392, 109 S.Ct. 1865.

¶ 20. Phillips argues that the troopers’ failure to identify his vehicle as the wrong vehicle, failure to identify him as the wrong suspect and the actions taken against him, resulting in injuries, constitute reckless disregard. The MHP responds that its officers acted appropriately under the circumstances.

¶21. On two previous occasions this Court has considered whether police officers’ mistaken arrests of individuals rose to the level of reckless disregard. In Foster v. Noel, this 'Court held that a police officer’s failure to investigate before obtaining a warrant for the plaintiffs arrest constituted reckless disregard. Foster v. Noel, 715 So.2d 174, 179 (Miss.1998). In Foster, the manager of a Jitney Jungle observed a black man who had been shoplifting enter a car with another black man and reported to the police the perpetrator’s gender, race, name and the tag number of the car he was driving. Foster, 715 So.2d at 175-76. The police officer filled out an affidavit and obtained a warrant for Jacqueline Noel, the owner of the truck with the tag number given; however, neither her name nor her gender' matched the information provided to the officer. Id. The Court found that the officer acted in reckless disregard for the plaintiffs safety and well-being “by inserting [the" plaintiffs] name in the affidavit for an arrest warrant based solely upon a car tag number although he knew that [the manager] stated two black men stole the [merchandise].” Id. at 179. The Court characterized the officer’s actions as “an intentional act taken in reckless disregard of the adverse effect upon [the plaintiff] of the wrongful arrest to follow therefrom.” Id.

¶ 22. Eight years later, in City of Greenville v. Jones, this Court again considered whether police officers acted in reckless disregard when they mistakenly identified and arrested the plaintiff. Jones, 925 So.2d 106. The Court held that the officer’s actions in that case were, at most, mere negligence and did not constitute reckless disregard. Id. at 121., In Jones, in the course of investigating a series of bomb-threat calls, the police traced the calls to a cellular telephone service provider and requested from that provider the phone records associated with the number from which the threats were made. Id. at 107-08.

¶ 23. When the provider’s employee entered the number to obtain the records, the employee transposed two numbers and retrieved the plaintiffs phone records. Id. at 108. “[P]age two of the packet revealed that Jones owned the cellular phone bearing the transposed number; however, pages 3-6 of the packet revealed that the four bomb threat calls had been placed from the cellular phone bearing the un-transposed number.” Id. The plaintiff asserted that a careful review by the officers of the package would have revealed the mistake. Id. at 110. The trial court found that the police conducted an “inadequate” and “careless” investigation. Id. at 119. This Court reversed the trial court, finding that the trial court ruling was “not supported by substantial, credible and reasonable evidence.” Id. The Court distinguished Jones from Foster, and found that the most plaintiffs had proven was “that one or more of the [Greenville] officers were negligent, thus causing the City of Greenville to be exempt from liability under the MTCA.” Id.

¶ 24. The case sub judice is easily distinguished from Foster, where the officers intentionally disregarded information they had been given, resulting in the mistaken arrest. Foster, 715 So.2d 174. Unlike Foster, the evidence in this case establishes that Seals knew only the description of the vehicle. When Seals requested a description of the vehicle, he was informed that he was looking for a white Ford Explorer and that the registration information was unknown. He knew only the make, model, and color of vehicle for which he was looking. Unlike the facts presented in either Foster or Jones, the officers involved in this case were required to make split-second decisions while involved in the high-speed pursuit of a violent suspect.

¶ 25. Presented with conflicting testimony, the trial court made findings of fact which we consider to be supported by substantial and credible evidence. The trial court found that Seals was engaged in a high-speed pursuit, which had at times reached more than 100 miles per hour, attempting to subdue a fleeing perpetrator of a violent crime. Under those circumstances, Seals requested a description of the suspect’s vehicle and looked for a vehicle based on the information he was given. Unaware that Phillips, a reserve officer, was attempting to participate in the pursuit in his personal vehicle (also a white SUV), Seals pulled over a vehicle which appeared to fit the description he had been given, which was traveling very near to Rayborn at the time Seals was approaching Rayborn to assist him in the pursuit. Seals knew that the suspect had failed to yield to Rayborn, who was attempting to pull the suspect over. After the stop, Phillips, by his own admission, neither identified himself nor complied with Seals’s requests during takedown and handcuffing. The trial court concluded that Phillips was noncompliant and resisted arrest. ■

¶ 26. Accepting the trial court’s factual findings, we review the officers’ actions “on an objective standard with all the factors that they were confronted with,” and find that the officers did not act in reckless disregard. Although the officer mistakenly identified Phillips as the suspect, Phillips failed to prove that Seals and Little acted in any way other than reasonably under the circumstances. Phillips did not meet his burden of showing by a preponderance of the evidence that Seals intentionally-disregarded information and thus, acted in reckless disregard when he misidentified Phillips or his vehicle.

CONCLUSION

¶ 27. Based on the trial court’s findings of fact, which we find to be supported by substantial, credible, and reasonable evidence, we find that, the troopers acted reasonably under the circumstances with which they were confronted. The Court further finds they did not act in reckless disregard of the safety and well-being of Phillips. Thus, pursuant to the provisions of the MTCA, the Mississippi Department of Public Safety and the Mississippi Highway Patrol are exempt from liability in this case. The judgment of the trial court is affirmed.

¶ 28. AFFIRMED.

SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON AND DICKINSON JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. RANDOLPH, J., NOT PARTICIPATING.

      . Nothing in the record indicates that the MHP, including Troopers Seals, Little, and Rayborn, knew or had access to information that Phillips was involved in the pursuit.

      . This testimony is not only contradictory to that of Seals but also to that of the Forrest County Sheriff's Office dispatcher, who testified he never told Phillips to stop the pursuit. Further, the testimony is in contradiction of defense exhibit 20, a recording from the camera in the front of Seals's vehicle, which clearly shows Phillips on the highway in motion immediately prior to Seals pulling him over.

      . The counterclaim was for defamation.

      .Releasing the individual defendants was in accordance with Mississippi Code Annotated section 11-46-7(2), which reads:
      An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity, may be liable, but no- employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee's duties.

      . The cell phone service provider was determined to be at fault and paid the plaintiff damages.

      . The trial court also found that Phillips was tacitly engaged in “criminal activity” (i.e. engaging in emergency vehicular operations without the right equipment or vehicle, failure to yield to emergency vehicles, failure to comply with an officer's traffic orders, and refusal to comply with an officer's request), but since the issue of reckless disregard is dispositive, we need not address whether Phillips was engaged in criminal activity at the time he was injured.


author: DICKINSON, Justice, DIAZ, Presiding Justice,

text:
    Ephen L. BANKS and Jimmy Oglesby d/b/a Oglesby Farms v. Curlie Darnell HILL.
    No. 2006-IA-00047-SCT.
    Supreme Court of Mississippi.
    April 3, 2008.

      Bradley Farel Hathaway, Lawrence Douglas Wade, Jr., Greenville, William 0. Luckett, Jennifer Lyn Miller Bermel, attorneys for appellants.
    George F. Hollowell, Jr., Greenville, attorney for appellee.
   DICKINSON, Justice,

for the Court.

“We have long been committed to the proposition that trial by ambush should be abolished, the experienced lawyer’s nostalgia to the contrary notwithstanding.

¶ 1. In this automobile-accident case, the plaintiffs attorney failed properly and timely to designate experts. Nevertheless, the trial court ordered that the plaintiff would be allowed to call her experts to rebut the defendants’ case-in-chief. The defendants filed a motion for an interlocutory appeal, which we granted. After careful review, we find that, under the facts of this case, the trial court erred in ruling that the plaintiff might call experts to rebut the defendants’ case-in-chief. Under the facts of this case, the plaintiffs experts must be restricted to offering opinions to rebut the defendants’ experts’ opinions, if any, which were not disclosed in discovery and not reasonably anticipated by the plaintiff.

STATEMENT OF THE FACTS

¶ 2. The facts of the automobile collision which led to this lawsuit are not relevant to this appeal. Our concern today is limited to the conduct of the lawyers in the discovery process.

¶ 3. On more than one occasion, plaintiffs counsel failed to designate expert witnesses in a timely manner in accordance with the agreed scheduling order and the agreed amended scheduling orders entered by the trial court. The defendants timely designated their expert witnesses, fully disclosing the subject matter, facts, and opinions to which each expert would testify as well as the grounds of those opinions.

¶ 4. Two months later, the plaintiff requested leave to designate experts. One month after making this request, without waiting for the trial court to rule on her motion, the plaintiff designated two experts. The defendants responded by moving to strike plaintiffs attempted designation. The trial court denied the plaintiffs request to designate experts out of time and sustained the defendants’ motion to strike the late designation of plaintiffs experts.

¶5. The plaintiff then filed a motion seeking to call one of the stricken experts in rebuttal. The trial court held that, even though the plaintiff did not properly designated experts, she would be allowed to call experts to testify in rebuttal of the defendant’s case-in-chief. The defendants sought an interlocutory appeal from this ruling.

ANALYSIS

¶ 6. A trial court is granted wide discretion in managing discovery and issuing scheduling orders, and an abuse-of-discretion standard of review applies to such orders. Bowie v. Monfort Mem’l Hosp., 861 So.2d 1037, 1042 (Miss.2003). We similarly employ an abuse-of-discretion standard in reviewing a trial court’s decision to sanction a party for violation of a scheduling order. Tinnon v. Martin, 716 So.2d 604, 611 (Miss.1998).

¶ 7. It is undisputed that the plaintiff on more than one occasion flagrantly ignored the rules of discovery arid the duty to designate her expert witnesses. She never properly designated her experts and never disclosed the substance of opinions to be offered. Although the trial court granted the defendants’ motion to strike the plaintiffs designation of experts, it nonetheless granted the plaintiffs request to call undesignated, undisclosed experts— at trial — to “rebut” the 'defendant’s “casein-chief.” Thus, by violating the rules, the plaintiff lost the battle, but won the war.

¶ 8. The plaintiff has the burden of proof. Busick v. St. John, 856 So.2d 304, 312 (Miss.2003). The defendant is not required to prove anything. A defendant’s “case-in-chief’ consists of evidence to contradict and rebut the evidence and claims presented by the plaintiff, and — in some cases — evidence to establish its affirmative defenses.

¶ 9. Discovery of “facts known and opinions held by experts” is governed by Rule 26 of the Mississippi Rules of Civil Procedure, which states, in pertinent part: “A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial....” Miss. R. Civ. P. 26(b)(4)(A)(I). For purposes of today’s case, the key phrase in the rule is “expects to call.” The rule does not require the disclosure of an expert a party does not expect to call at trial.

¶ 10. After the trial court denied the plaintiffs request to designate experts out of time and sustained the defendants’ motion to strike the late designation of plaintiffs experts, the plaintiff tenaciously argued that, even though she had disclosed neither the identity of1 her experts nor their opinions, she should nevertheless be allowed to call her experts to rebut opinions provided by the defendants’ experts. The trial court responded to this argument by ordering, that the plaintiff would be allowed to call experts to rebut the defendants’ case-in-chief. The practical effect of this ruling — if allowed to stand — is that the plaintiff would be allowed to call an undisclosed expert to provide undisclosed opinions to rebut opinions which were fully disclosed by the defendants in discovery, and of which the plaintiff was fully aware.

¶ 11. The defendants properly and timely disclosed that their case-in-chief would- include the testimony of experts. The opinions to be offered by the defendants’ experts and other required information was provided. The plaintiff, on the other hand, provided nothing.

¶ 12. We find it would be inherently unfair and a violation of our rules of civil procedure for the plaintiff — who. consistently has ignored the rules and violated the discovery deadlines — to appear at trial with experts whose opinions have not been properly disclosed to the defendants, and to call these experts to “rebut” evidence offered in the defendants’ case-in-chief. Furthermore, we find it disingenuous for the plaintiff to argue that she does not “expect” to call her experts, as envisioned by Rule 26(b).

¶ 13. If the rules allowed the strategy argued by Hill, we fail to see why plaintiffs would designate and disclose experts. Plaintiffs would be free simply to wait until trial, and then call undesignated experts to “rebut” the defendant’s case-in-chief. The only protection from this tactic would be for a defendant not to offer any evidence in its case-in-chief.

¶ 14. This Court must reject such ambush tactics, just as it has in the past. In Harris v. General Host Corporation, 503 So.2d 795 (Miss.1986), the defendant failed to disclose its expert witness in discovery. The Harris defendant argued (as Hill argues in the case sub judice) that failure to disclose the expert was not fatal, since the expert was to be called only as a rebuttal witness. The trial court in Harris “allowed the expert, who was a physician, to be called as a witness, apparently on the theory that the physician was a ‘rebuttal witness.’ ” Id. In rejecting the “rebuttal” argument and reversing the trial court, the Harris Court stated:

, [The defendant’s claim that [the expert] was a rebuttal witness profits it nothing. There is nothing in our rules of procedures that authorizes a party to withhold the names of likely expert witnesses on such grounds, except only for the circumstance where the party had no reasonable means of anticipating in advance of.trial the need for calling the witness....
In any event, [the defendant’s argument proves too much. If the testimony of [the expert] is rebuttal testimony because it is given in answer to some of the testimony offered as a part of the Plaintiffs case in chief, all evidence of a defendant must be treated as rebuttal. If we accept [the defendant’s theory, there would be no basis on principle for ever requiring a defendant to disclose in advance the evidence it would offer at trial, for all such defense evidence in this sense is rebuttal.

Id. at 797.

¶ 15. Hill failed properly to disclose her experts’ opinions. Consequently, she may not call those experts to offer opinions to “rebut” anything offered by the defendants in their case-in-chief. Hill was made fully aware of the-experts to be called by the defendants, as well as the opinions to which they would testify. Thus, if she wished to counter the expected testimony from defendants’ experts, she had fair opportunity to obtain experts of her own and properly to disclose her expert’s opinions. This she did not do, and she will not be allowed to subvert the rule by offering the expert opinions as rebuttal to something offered by the defendant.

¶ 16. Our holding today should not be read always to prohibit a party from calling undisclosed experts to offer opinions in rebuttal. We cannot predict what might happen at a trial, and if one party’s expert offers opinions which were not properly disclosed, then the trial court certainly should consider whether to allow opinions from undisclosed experts to rebut this unexpected evidence. We note, however, that such circumstances should be a rarity, since all experts and expert opinions should be disclosed prior to trial, eliminating the prospect of unexpected opinions at trial.

¶ 17. In accordance with the Mississippi Rules of Civil Procedure and this Court’s prior decisions, we find the trial court’s order must be restricted to allow the plaintiff to call experts only to rebut opinions from the defendants’ expert not disclosed in discovery, and not reasonably anticipated.

CONCLUSION

¶ 18. For these reasons, the decision of the trial court is reversed, and the trial court’s order is restricted to allow the plaintiff to call experts to rebut opinions not disclosed in discovery, and not reasonably anticipated.

¶ 19. REVERSED AND REMANDED.

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

DIAZ, Presiding Justice,

Dissenting:

¶ 20. I do not find that the trial court abused its discretion under Rule 37 by ordering that the plaintiff would be allowed to call expert witnesses in rebuttal. Therefore, I cannot join the majority opinion.

¶ 21. The majority cites only one case, Harris v. General Host Corp., 503 So.2d 795 (Miss.1986), in support of its conclusion that the trial court abused its discretion by ordering that the plaintiff would be allowed to call experts to testify in rebuttal to the defendants’ case-in-chief. Although Harris is the case most closely on point, it should not control our decision in the present case because the facts are distinguishable. The expert witness in Harris that this Court held should not have been allowed to testify was not a “rebuttal witness” because he was called by the defendant to testify during its case-in-chief. Id. at 795-96. See Morgan v. Commercial Union Assurance Co., 606 F.2d 554, 555 (5th Cir.1979) (“Rebuttal is a term of art, denoting evidence introduced by a Plaintiff to meet new facts brought out in his opponent’s case in chief.”). In response to the defendant’s argument that the expert was a rebuttal witness, this Court observed: “If the testimony of Dr. Allen is rebuttal testimony because it is given in answer to some of the testimony offered as a part of the Plaintiffs case-in-chief, all evidence of a defendant must be treated as rebuttal.” Harris, 503 So.2d at 797.

¶ 22. By contrast, in the present case, the expert witnesses the plaintiff is allowed to call, under the court’s order, will truly be rebuttal witnesses — their testimony will be limited to rebutting the expert testimony introduced by the defendants during their case-in-chief. Unlike the expert in Harris, the plaintiffs rebuttal experts will not be able to offer their own opinions about the facts of the case; they will only be able to offer critiques of the defendants’ experts’ opinions. Cf. Int’l Bus. Machines Corp. v. Fasco Indus., Inc., 1995 WL 115421, at *3 (N.D.Cal. Mar.15, 1995) (“The supplemental or ‘rebuttal’ experts cannot put forth their own theories; they must restrict their testimony to attacking the theories offered by the adversary’s experts. In this respect, a party can control the scope of the testimony of its adversary’s rebuttal experts by limiting its own experts’ testimony to a given subject matter.”). In short, any concern that the plaintiff will be able to present her case-in-chief on rebuttal is not well founded.

¶ 23. The other major factual distinction between this case and Harris is the nature of the discovery violation and the prejudicial effect thereof on the opposing party. In Harris the defendant did not disclose the name of the expert witness in its response to the plaintiffs interrogatory asking it to name the experts it intended to call it trial. Id. at 796. As a result of the defendant’s non-disclosure, the plaintiff was caught completely off guard when the defendant called the expert during its case-in-chief — hence this Court’s stern language about “trial by ambush” and the “‘rebuttal witness’ ruse.” Id. at 796-97.

¶ 24. In the present case, the plaintiff did not fail to disclose the names of her expert witnesses, as did the defendant in Harris; she merely failed to designate her experts before the deadline set in the parties’ agreed amended scheduling order. Thus, her discovery violation was not nearly as egregious as that of the defendant in Harris. If the defendants in this case are prejudiced at all by the court’s order allowing the plaintiff to call experts in rebuttal, such prejudice pales in comparison to the prejudice caused the plaintiff in Harris by the defendant’s nondisclosure of its expert witness. Moreover, the majority’s anxiety about the defendants in the present case being ambushed at trial by the plaintiffs rebuttal experts is unwarranted. First, the plaintiff will have to designate the expert witnesses she plans to call in rebuttal sixty days before trial. See U.C.C.C.R. 4.04 A. (“Absent special circumstances the court will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least sixty days before trial.”). Second, the defendants will have plenty of time to obtain discovery on the opinions of the plaintiffs rebuttal experts, since a trial date has not been set. They can propound interrogatories to the plaintiff, requiring her to identify the names of the rebuttal experts she expects to call and “to state the substance of the fact and opinions to which the expertfe] [are] expected to testify and" a summary of the grounds for each opinion”; depose the plaintiffs rebuttal experts; or serve a request for the production of documents relating to the rebuttal experts’ opinions on the plaintiff. Miss. R. Civ. P. 26(a)(4)(A)(I).

¶ 25. Since there is no controlling case law regarding the issue at hand, the Mississippi Rules of Civil Procedure must determine the outcome of this case. Rule 37(b) governs the failure of parties to comply with orders of the trial court. Miss. R. Civ. P. 87(b). It provides in relevant part: “If a party ... fails to obey an order to provide or permit discovery, ... the court in which the action is pending may make such orders in regard to the failure as are just_” Miss. R. Ciy. P. 37(b)(2) (emphasis added). Rule 37 clearly grants a trial court broad discretion in imposing sanctions for failing to comply with its discovery orders. This . discretion includes whether to impose sanctions and what sanctions to impose. The only limitation on the trial court’s discretion is that the sanction be “just.”

¶ 26. The majority’s holding, in essence, is that the trial court abused its discretion by not prohibiting the plaintiff from calling expert witnesses on rebuttal as a sanction for her failure to timely designate her experts, or, stated another way, by not imposing a severe enough sanction. This Court has never held that a trial court abused its discretion by not imposing a particular sanction for a discovery violation. In addition to lacking support in our precedent, the majority’s holding also amounts to nothing more than second-guessing the trial court’s judgment about what type of sanction was merited by the plaintiffs failure to comply with the scheduling order. We should not strip the trial court of its authority over the discovery process and impose the sanction we would have imposed if we were in the trial court’s position. We should defer to the trial court’s determination regarding the appropriate sanction for the plaintiffs discovery violation. As we have previously stated:

Our trial judges ... are in a much better position to resolve all pre-trial issues, including discovery, and it is, not, and should not, be part of our mandated appellate review, to resolve such issues .... Our trial judges are likewise in a much better position to decide which parties and/or lawyers need to be sanctioned for their behavior....

Miss. Farm Bureau Mut. Ins. Co. v. Parker, 921 So.2d 260, 265 (Miss.2005). Other courts have held that a trial court did not abuse its discretion by allowing a plaintiff to call an undesignated expert as a rebuttal witness. McDonald v. Safeway Stores, Inc., 109 Idaho 305, 707 P.2d 416, 420 (1985); Iowa-Ill. Gas and Elec. Co. v. Hoffman, 127 Ill.App.3d 496, 82 Ill.Dec. 323, 468 N.E.2d 977, 981-82 (1984); Shinrone, Inc. v. Tasco, Inc., 283 N.W.2d 280, 289 (Iowa 1979) (“The rule is clear that a court may, but is not required to, issue an order refusing to allow a disobedient party to introduce designated matters in evidence.”). Accordingly, I cannot conclude that the trial court’s sanction against the plaintiff for her failure to timely designate her experts was unjust or an abuse of discretion because it did not prohibit her from calling expert rebuttal witnesses.

¶ 27. I would affirm the trial court and therefore dissent.

EASLEY, J., JOINS THIS OPINION.

      . Harris v. General Host Corp., 503 So.2d 795, 796 (Miss.1986) (cited and discussed later herein).

      . A defendant’s "case-in-chief” will consist of everything presented by the defendants, including the properly-disclosed opinions of their experts. Ordinarily, a rebuttal witness is called to contradict evidence not expected or reasonably anticipated. In this case, since the trial court should not allow the defendant's experts to testify to opinions which were not disclosed to the plaintiff, and since experts are not ordinarily needed to rebut facts, there should be nothing for the plaintiff's expert to rebut. However, rebuttal testimony should be allowed to contradict unexpected and undisclosed opinions provided by defendants' experts:

      . For that matter, what would stop defendants from following the same strategy? A defendant could just as easily claim that an undiscloséd exert is being called to "rebut” something the plaintiff’s expert said in the plaintiff's case-in-chief.

      . It must be pointed out that, under the trial court’s order, the plaintiff will not be allowed to call his untimely designated experts or use the expert reports they prepared to rebut the defendants’ case-in-chief; she will only be permitted to call "other qualified experts” in rebuttal.

      . In fact, the expert was the doctor who treated the plaintiff at the hospital for the injuries he sustained at the defendant’s store. Hams, 503 So.2d at 796. His testimony was clearly not rebuttal testimony: he testified that "he listened to [the plaintiff's] complaints, gave him the standard physical examination including x-rays and, in the end, stated that he was unable to find much wrong with Harris.” Id.

      . The trial court stated in its bench ruling:
      But that rebuttal evidence that may be put on by an expert will be limited to that testimony which would have been [sic] presented during the defendant's case in chief. If the defendant's case in chief does not cover a particular matter, then that matter cannot be addressed during the course of the rebuttal evidence presented by the plaintiff.

      . For what it is worth, the plaintiff's attorney has offered to pay for the additional costs incurred by the defendant in conducting additional discoveiy regarding the plaintiffs rebuttal expert's opinions.