author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Charles ALLEN.
    No. 06-KA-778.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2007.
    Rehearing Denied May 25, 2007.

      Paul D. Conniek, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Donald Rowan, Assistant District Attorneys, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Charles Allen, Defendant/Appellant (In Proper Person), Angola, Louisiana.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
   WALTER J. ROTHSCHILD, Judge.

| ¡.Defendant, Charles Allen, was indicted by a grand jury on November 20, 2003 and charged with second degree murder in violation of LSA-R.S. 14:30.1. He pled not guilty and filed several pre-trial motions, including a motion to suppress his confession which was denied after a hearing conducted during trial. After a two-day trial, a jury found him guilty as charged by a vote of eleven to one. Defendant was sentenced to life imprisonment without the benefit of parole, probation, or suspension of sentence.

In a brief filed by defense counsel, defendant appeals on the basis that it was error to deny the motion to suppress the confessions and he also assigned as error all errors patent. In a supplemental brief filed by defendant pro se, defendant assigns 28 errors by the trial court. For the reasons stated herein, we affirm defendant’s conviction and sentence.

FACTS

At approximately 11:00 p.m. on September 24, 2003, police responded to a 911 call at 913 11th St. When they arrived, they found the victim, Jairo Pinzón, plying inside the residence near the front door with gunshot wounds. The victim was transported to Charity Hospital where he later died. He had suffered seven gunshot wounds to his body.

During the course of the investigation, Detective Richard Russ learned that the defendant was an associate of the victim, that the two had been business partners at one time, and that the two were no longer talking. Detective Russ, along with Detective Eric Becnel, spoke to the defendant on September 29, 2003. The defendant stated he had worked with the victim on and off since late 1996 or early 1997 as a kitchen installer but had started his own company approximately a year and a half earlier. He stated he last saw the victim one month prior to the murder at which time the two argued over a business matter. The defendant then proceeded to give Detective Russ information about the victim’s drug use, sexual relationships, and financial situation. The defendant also confirmed his earlier statement to the police that he owned a few guns, including a .45 caliber and 9mm.

After the defendant’s first statement to the police, the police received the autopsy report which revealed the victim was shot with both a .45 caliber and a 9 mm gun. Remembering the defendant stated he owned both types of guns, the police went to the defendant’s house in Madisonville to see if he would voluntarily relinquish his guns for ballistic testing. The defendant agreed and subsequent ballistic tests positively identified the defendant’s guns as the murder weapons.

An arrest warrant for the defendant was obtained and he was arrested as he left the victim’s funeral. Upon his arrest, the defendant gave a statement in which he admitted killing the victim. He stated he feared for his life and believed the victim would kill him if he did not kill the victim first. He explained he rented a car, drove to the victim’s home at a time he knew the victim would not be home, entered the home through the back door, climbed into the attic, waited for the | ¿victim to come home, and shot the victim with both guns as the victim walked under the attic opening. The defendant corroborated his confession during his testimony at trial.

DISCUSSION

Defendant first argues on appeal that the trial court erred in refusing to suppress his confession because his two requests for counsel were not honored by the police. He maintains he first requested counsel during his transport from St. Charles Parish, where he was arrested, to Jefferson Parish. He asserts his second request for counsel was made after the pre-interview and before the taped statement. The State responds that defendant’s requests were not unequivocal invocations of his right to counsel. The State further contends the evidence shows defendant’s confession was voluntary.

Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived his Miranda rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducements or promises. LSA-R.S. 15:451; State v. Franklin, 03-287 (La.App. 5 Cir. 9/16/03), 858 So.2d 68, 70, writ denied, 03-3062 (La.3/12/04), 869 So.2d 817.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that the Fifth Amendment gives a suspect subject to custodial interrogation the right to consult with an attorney during questioning. State v. Payne, 01-3196 (La.12/4/02), 833 So.2d 927, 934; Miranda v. Arizona, 384 U.S. at 469-473, 86 S.Ct. at 1625-1627. The police are required to | ^explain this right to the suspect before the custodial interrogation, “initiated bylaw enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way,” begins. State v. Payne, supra at 934, citing Rhode Island v. Innis, 446 U.S. 291, 298, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297 (1980), quoting Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. at 1619. The safeguards regarding the Miranda right to counsel are triggered by both a custodial setting and official interrogation. State v. Payne, supra at 934.

After a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning a suspect unless or until he clearly requests an attorney. Davis v. United States, 512 U.S. 452, 461, 114 S.Ct. 2350, 2356, 129 L.Ed.2d 362 (1994). Whether the accused actually invoked his right to counsel is an objective inquiry. State v. Payne, 833 So.2d at 935, citing Davis v. United States, 512 U.S. at 458-459, 114 S.Ct. at 2355. In order to invoke his right to counsel, the suspect must articulate his desire to have counsel present with sufficient clarity to enable a reasonable police officer, in the circumstances, to understand his statement to be a request for an attorney. Id. See also, State v. Leger, 05-0011 (La.7/10/06), 936 So.2d 108, 135. The invocation of the right to counsel during the custodial interrogation “requires, at minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” State v. Payne, 833 So.2d at 935, quoting Davis v. United States, 512 U.S. at 459, 114 S.Ct. at 2355.

Once a suspect has asked to have an attorney present, he is not subject to any further interrogation by the authorities until counsel has been made available to him, unless the suspect initiates further communication, exchanges or conversations with the police. State v. Payne, 833 So.2d at 935, citing Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981). A | ^cessation of questioning is not required, if the suspect makes a reference to an attorney that is ambiguous or equivocal, which causes a reasonable police officer, in light of the circumstances, to understand only that the suspect might be invoking the right to counsel. State v. Payne, supra at 935, citing Davis v. United States, 512 U.S. at 458, 114 S.Ct. at 2355. (emphasis in original).

In analyzing whether there has been a direct, clear, unequivocal, and unambiguous request for counsel, courts must give a broad, rather than narrow, interpretation to the suspect’s request. State v. Payne, 833 So.2d at 936, citing Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). The admissibility of a confession or statement is a determination for the trial court and the trial court’s ruling will not be overturned unless the preponderance of the evidence clearly favors suppression. State v. Gant, 06-232 (La.App. 5 Cir. 9/26/06), 942 So.2d 1099, 1123.

During the suppression hearing, Detective Eric Becnel stated he advised the defendant of his Miranda rights at the time he arrested him in St. Charles Parish and again when he placed the defendant into the car prior to transporting him to Jefferson Parish. Detective Becnel testified the defendant stated he understood his rights. Detective Becnel explained that he and the defendant held a conversation during the transport. At some point, he told the defendant his bosses would want to know, “did you do this or didn’t you do this,” to which the defendant replied he thought he might want to speak to an attorney. Detective Becnel told the defendant it was his constitutional right and that he would give the defendant time to decide once they arrived at the police station.

At the police station, the defendant was given cigarettes and water at his request and was given 15-20 minutes in an open area without handcuffs to decide |7whether he wanted an attorney. Thereafter, while Detective Becnel and the defendant were “shooting the breeze,” the defendant stated he was willing to go ahead and provide a statement. The defendant was brought into an office and was interviewed by Detective Becnel, in the presence of Detective Richard Russ. During this interview, defendant confessed to killing the victim. Detective Becnel advised the defendant that he needed a taped statement at which time the defendant stated he might want to speak to an attorney about contacting the district attorney’s office about working out an insanity plea or deal. The defendant stated he needed to think about it and indicated he was hungry. He was given food from McDonald’s at his request, ate the food, smoked a cigarette, and then stated he was ready to give a statement. At the commencement of the taped statement, the defendant’s Miranda rights were reviewed and the defendant agreed he was waiving his rights.

The defendant testified during the suppression hearing that he asked for an attorney twice during the transport to Jefferson Parish but was never given an opportunity to call an attorney. He also stated he requested an attorney before his taped statement but was told by the police that without his statement he would prosecuted for first or second degree murder as opposed to manslaughter, a statement denied by Detective Becnel.

At the conclusion of the hearing, the trial court denied the motion to suppress defendant’s confession. The trial court commented that Detective Becnel testified consistently and that the court believed his testimony. The trial court further noted defendant appeared to be intelligent, understood his right to counsel, and understood that he did not have to answer questions but that he proceeded to give a statement. The trial court found the statement to be voluntary.

|ROn appeal, the defendant does not claim that he was not advised of his Miranda rights or that he did not knowingly and voluntarily waive those rights. Instead, he claims he requested an attorney during the custodial interrogation and that his request was ignored. Based on the circumstances of this present case, we fail to find the trial court erred in denying the defendant’s motion to suppress his confession.

In Davis v. United States, 512 U.S. 452, 461, 114 S.Ct. 2350, 2356, 129 L.Ed.2d 362 (1994), the defendant made a remark to law enforcement officers during an interview, after being advised of his rights, that, “[m]aybe I should talk to a lawyer.” The United States Supreme Court determined that the defendant’s remark was not an unambiguous or unequivocal request for counsel that required to officers to stop questioning the defendant.

Additionally, in State v. Chesson, 03-606 (La.App. 3 Cir. 10/1/03), 856 So.2d 166, 173-175, writ denied, 03-2913 (La.2/13/04), 867 So.2d 686, the Third.Circuit upheld the trial court’s denial of the defendant’s motion to suppress his statement despite his statement to police officers while being transported that “he might — he felt like he should talk to an attorney.” The Third Circuit concluded that “[t]he defendant’s statement regarding his ‘thinking’ that he possibly ‘should’ speak with an attorney is not the type of unequivocal and unambiguous statement described above [in Davis].”

| nSimilar to State v. Chesson, supra, the defendant in the present case twice stated he was “thinking” he “might” want an attorney. According to Detective Becnel, who the trial court found credible, the defendant never unequivocally stated he wanted an attorney. Under Davis, the defendant’s statements that he thought he might want to speak to an attorney were ambiguous and cessation of questioning was not required. Thus, the trial court did not err in denying the defendant’s motion to suppress his confession.

This assignment of error is without merit.

PRO SE SUPPLEMENTAL BRIEF

On February 19, 2007, after this matter was submitted to this Court, defendant filed a pro se brief listing 28 assignments of error.

Assignments of error numbers 8, 10, 11, 14, 19, 20, 22, 23 and 25-28 of the supplemental brief relate to claims involving ineffective assistance of counsel. In these twelve assignments of error, defendant claims his trial attorney was ineffective for various reasons ranging from counsel’s failure to ask certain questions of certain witnesses and his failure to present a defense to his failure to adequately investigate the case, pursue certain discovery, and timely pursue certain pre-trial motions. He also asserts his appellate counsel was ineffective for failing to raise the issue of coercion of his confession.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution of 1974. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show that (1) his attorney’s performance was deficient, and (2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Soler, 93-1042 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069, 1075, writ denied, 94-1361 (La.11/4/94), |10644 So.2d 1055. The error is prejudicial if it was so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable.” Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064; State v. Serio, 94-131 (La.App. 5 Cir. 6/30/94), 641 So.2d 604, 607, writ denied, 94-2025 (La.12/16/94), 648 So.2d 388. In order to show prejudice, the defendant must demonstrate that, but for counsel’s unprofessional conduct, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068; State v. Soler, supra at 1075.

The Sixth Amendment does not guarantee a defendant errorless counsel or counsel judged ineffective by hindsight. State v. Cambre, 05-888 (La.App. 5 Cir. 7/25/06), 939 So.2d 446, 460, citing State v. LaCaze, 99-584 (La.1/25/02), 824 So.2d 1063, 1078, cert. denied, 537 U.S. 865, 123 S.Ct. 263, 154 L.Ed.2d 110 (2002). Ineffective assistance claims are assessed on the facts of the particular case as seen from the counsel’s perspective at the time. State v. Cambre, supra at 460. As such, there is a strong presumption that counsel’s conduct will fall within the wide range of reasonable professional assistance. Id.

An ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the trial court where a full evidentiary hearing can be conducted. State v. Taylor, 04-346 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 595. When the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by an assignment of error on appeal, it may be addressed in the interest of judicial economy. Where the record does not contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings under LSA-C.Cr.P. arts. 924-930.8. Id., at 595.

Inin the present case, the appellate record is insufficient to consider all defendant’s allegations of ineffective assistance of counsel. For example, in one claim, defendant asserts defense counsel was ineffective because he failed to call any witnesses. A defense counsel’s decision to call or not call a witness is a matter of trial strategy and is not per se evidence of ineffective assistance. State v. Washington, 00-1312 (La.App. 5 Cir. 5/16/01), 788 So.2d 596, 607, writ denied, 01-1718 (La.5/3/02), 815 So.2d 94. This Court has held that ineffectiveness of counsel, relating to trial strategy, cannot be determined by review of the record on appeal but rather such a claim must be asserted by application for post-conviction relief where the issue can be considered through an evidentiary hearing to determine, among other things, the defense strategy and whether the defendant himself was aware of the strategy and acquiesced in it. Id., at 607; see also, State v. Cambre, 05-888 (La.App. 5 Cir. 7/25/06), 939 So.2d 446, 461.

In another claim, defendant asserts his trial counsel was ineffective for failing to request a responsive verdict of justifiable homicide. LSA-C.Cr.P. art. 814(A)(3) provides the only responsive verdicts for second degree murder are guilty, guilty of manslaughter, and not guilty. According to LSA-C.Cr.P. art. 814(A)(3), “justifiable homicide” is not a responsive verdict to second degree murder and, therefore, was properly not included in the jury charges as a possible verdict. Furthermore, justifiable homicide is a defense and not a responsive verdict. See, LSA-R.S. 14:18. Although this claim of ineffective assistance of counsel can be considered based on the appellate record, it lacks merit.

When there is sufficient evidence to consider some but not all of the allegations of ineffectiveness of counsel, this Court has declined to address any of the claims stating that the entirety of claims are more properly addressed on post-conviction relief at an evidentiary hearing. See, State v. Cambre, supra; State v. |12Taylor, 04-346 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 595. Thus, we find that these arguments alleging ineffective assistance of counsel should be considered in their entirety by the trial court on post-conviction relief at an evidentiary hearing.

In pro se assignments 1, 3, 4, 5, 6, 15 and 15, defendant challenges the voluntariness of his confession. He claims that he was not advised of his Miranda rights, that he was not told of the charges against him, that there were irregularities in the waiver of rights form he executed, that only a portion of his statement was recorded, that the confession was coerced, and that his requests for counsel were ignored.

As stated previously herein, the State bears the burden of proving defendant was advised of his Miranda rights, that he voluntarily and intelligently waived his Miranda rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducements or promises. LSA-R.S. 15:541; State v. Franklin, 03-287 (La.App. 5 Cir. 9/16/03), 858 So.2d 68, 70, writ denied, 03-3062 (La.3/12/04), 869 So.2d 817.

A statement obtained from the defendant by direct or implied promises, or by the exertion of improper influence must be considered involuntary and, therefore, inadmissible. State v. Gregory, 05-628 (La.App. 5 Cir. 3/28/06), 927 So.2d 479, 483. The determination of voluntariness of the statement is made on a case-by-case basis and rests on the totality of the circumstances. Id. A trial court’s determination on the admissibility of a statement and its conclusions on the credibility and weight of the testimony relating to the voluntariness of the confession or statement are entitled to great weight and will not be overturned unless unsupported by the evidence. Id.

Defendant first argues he was not advised of his Miranda rights before his confession. To the contrary, the record shows defendant was advised of his 11SMiranda rights several times. Detective Eric Becnel testified that when he first arrested defendant at the victim’s funeral, he advised him of his Miranda rights. He stated he again advised defendant of his rights when he put him in the car for transport to Jefferson Parish. Detective Becnel further testified he advised defendant of his rights yet again prior to giving his confession.

The State introduced the rights of an arrestee or suspect form during the motion to suppress hearing. The form was signed by defendant and shows defendant was advised of his rights and that he waived his rights. The form also shows defendant was under arrest for second degree murder. Additionally, at the very beginning of his confession, the waiver of rights form was specifically referenced. Defendant was expressly asked if he had been advised of his Miranda rights and that he was waiving his rights and defendant affirmatively responded.

Defendant next claims he was unaware of the exact charges against him and asserts the waiver of rights form was incomplete when he signed it. He specifically claims the line identifying what he was arrested for was left blank. There is nothing in the record to support his claim. Defendant testified during the motion to suppress hearing and never asserted there were irregularities with the form. The waiver of rights form signed by defendant clearly states defendant was under arrest for a violation of LSA-R.S. 14:30.1, second degree murder. Additionally, at the beginning of defendant’s taped confession, Detective Becnel stated the statement was being taken in reference to the homicide of Jairo Pinzón, the victim.

Defendant further asserts his confession was coerced by threats of being charged with second-degree murder if he did not confess and psychological tactics aimed at cajoling him into confessing. At the motion to suppress hearing, defendant testified that the police told him that if he did not give a statement the | UDA would prosecute him for second degree murder, if not first degree murder. According to defendant, the police stated they did not believe it was a second degree murder case but explained he could not be charged with manslaughter without a statement. Detective Becnel testified on rebuttal that he never told defendant he thought the case warranted a manslaughter charge and denied telling defendant that if he refused to give a statement Detective Becnel would not help him get the lesser manslaughter charge.

The trial court was free to accept Detective Becnel’s testimony, that no such conversation was had, as credible. Defendant was aware he was being charged with murder. Detective Becnel testified he never told defendant his charge would be lesser if he confessed. Nothing in the record indicates defendant was induced to confess by a promise of a lighter charge.

Defendant also argues he was mentally coerced to confess by the officers’ attempts to build a rapport with him by “shooting the breeze” and giving him food and cigarettes. This Court has stated that a confession is “coerced” if “an individual’s ‘will was overborne’ or if his confession was not ‘the product of a rational intellect and a free will’ ” whether by physical intimidation or psychological pressure. State v. Sanchez, 462 So.2d 1304, 1308-1309 (La.App. 5 Cir.1985), writ denied, 465 So.2d 733 (La.1985), quoting Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 754, 9 L.Ed.2d 770 (1963). The type of behavior defendant complains about does not fall within the parameters of coercive behavior.

Defendant further challenges the admissibility of his confession on the basis the police failed to record his entire statement. The record shows defendant gave 1^statements to the police prior to giving a recorded confession. He claims the failure of the police to record his “entire” statement resulted in a coerced statement. Defendant did not raise this issue in the trial court. In State v. Fasola, 04-902 (La.App. 5 Cir. 3/29/05), 901 So.2d 533, 544, writ denied, 05-1069 (La.12/9/05), 916 So.2d 1055, this Court refused to address a similar issue after noting the defendant did not raise the issue in the trial court. Of note, there is no requirement that a statement to the police must be recorded. State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d 916, 923, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000).

Finally, defendant asserts his requests for counsel were disregarded. This issue was discussed previously herein and was found to lack merit.

These seven assignments of error are without merit.

In assignments 2, 13 and 17, defendant challenges the admissibility of his first taped statement to the police wherein he admitted owning the two guns that were later identified as the murder weapons. He contends the police only learned he possessed the weapons when they first talked to him without advising him his Miranda rights despite knowing he was a suspect in the murder. Defendant maintains his arrest was illegal because it was based on information obtained in violation of his due process rights.

Prior to trial, defendant filed two motions to suppress his statement(s). The first was a generic motion seeking to suppress all confessions or inculpatory statements on the basis they were not voluntary. The second motion was more specific and sought to suppress defendant’s confession on the basis his request for an attorney was disregarded. A motion to suppress hearing was held during trial leafier a tape of defendant’s first statement, which was made before defendant was arrested, was introduced into evidence and played for the jury without objection. Evidence at the motion hearing related only to the admissibility of defendant’s second statement wherein he confessed after his arrest.

After the trial court ruled defendant’s confession was admissible, defense counsel attempted to challenge defendant’s first statement which contained information about the guns. Defense counsel asserted the first statement was improper because defendant was not advised of his rights and was effectively under arrest at the time. There was some discussion between the parties and the trial judge that the first statement was made before defendant was a suspect and before he was in custody. Thereafter, trial resumed.

An objection made after the evidence is before the jury is too late. State v. Rivet, 01-353 (La.App. 5 Cir. 9/25/01), 798 So.2d 219, 227. In Rivet, this Court concluded defense counsel’s objection to a letter introduced into evidence was untimely. Defense counsel failed to object when the letter was produced and a witness was questioned about the letter. Instead, counsel waited until after the witness’ testimony was complete and after the State moved to admit the letter into evidence to lodge his objection.

Also, in State v. Johnson, 519 So.2d 212 (La.App. 5 Cir.1988), writ denied, 523 So.2d 1334 (La.1988), defendant challenged the admission of evidence pertaining to a sweatshirt that had been the subject of a pre-trial motion to suppress that was apparently not heard. This Court determined defense counsel waited too late in the trial to object to the introduction of the sweatshirt, noting that counsel failed to object at the time the sweatshirt was first shown to the jury but rather waited until after testimony referring to the sweatshirt had been placed before the jury before objecting.

|17In the present case, defense counsel specifically stated, “No objections,” when the State sought to introduce the tape and transcript of defendant’s first statement into evidence. Thereafter, the tape was played for the jury without objections. It wasn’t until after the subsequent motion to suppress defendant’s confession, his second statement to the police, that defense counsel alleged any impropriety in defendant’s first statement. Thus, the objection to the admissibility of the first statement is untimely.

Nevertheless, we find no merit to defendant’s claim. In State v. Weeks, 345 So.2d 26, 28 (La.1977), the Louisiana Supreme Court held, “Miranda warnings are not a pre-requisite to admissibility of statements taken by officers during non-custodial, general, on-the-scene investigations, conducted to determine the facts and circumstances surrounding a possible crime, absent a showing that the investigation had passed the investigatory stage and has focused on the accused.”

In the present case, the evidence supports a finding that the investigation had not focused on defendant at the time of his first statement and, thus, the police were not required to advise defendant of his Miranda rights. Defendant gave a taped statement five days after the murder at which time he gave information about his relationship with the victim. Detective Becnel, who took defendant’s first statement, testified that at the time he took defendant’s first statement the investigation had multiple angles considering the fact the victim frequented strip clubs, had strange sexual behavior, and engaged in drug use. He stated that at the time he spoke to defendant anybody could have been a suspect. Detective Russ also testified that at the time of defendant’s first statement the police still had multiple avenues of investigation.

This assignment of error is without merit.

|1RIn pro se assignment of error number 7, defendant contends the police failed to investigate his claims that he was the victim of a racketeering or entrapment conspiracy involving his successful business. He alleges the failure to investigate was a result of police corruption. Defendant asserts that the failure of the police to investigate his claim somehow affected his defense.

It is unclear how defendant was prejudiced by the alleged failure to investigate his claims. Defendant never asserted someone else was the perpetrator. To the contrary, he admitted killing the victim and the physical evidence showed he owned the guns that matched the ballistics of the bullets found in the victim. Additionally, defendant testified at trial in his defense and asserted his claim that he was the victim of a racketeering conspiracy. Furthermore, whether defendant was or was not the victim of a racketeering conspiracy is not relevant to the issue of whether he was guilty of second degree murder.

In pro se assignment of error number 9, defendant challenges his examination by Dr. Post, a psychiatrist reportedly hired by the defense to examine defendant. He claims Dr. Post only determined his competency to stand trial and did not determine his state of mind at the time of the offense. It is unclear what issue defendant is raising by this assertion but it appears he is claiming Dr. Post’s examination or lack thereof somehow affected his plea.

The record shows defendant pled not guilty at his arraignment which was one day after he was indicted. A motion for a sanity commission was filed approximately five months later. At the sanity hearing, defense counsel stipulated that defendant was competent to stand trial but noted his expert, Dr. Post, needed additional time to determine defendant’s state of mind at the time of the offense. The trial court accepted defendant’s not guilty plea and set the matter for trial.

|19LSA-C.Cr.P. art. 561 provides in pertinent part:

The defendant may withdraw a plea of “not guilty” and enter a plea of “not guilty and not guilty by reason of insanity,” within ten days after arraignment. Thereafter, the court may, for good cause shown, allow such a change of plea at any time before the commencement of trial.

The record shows defendant proceeded to trial without any assertion of an insanity defense. Any issue regarding the failure of defense counsel to have properly asserted a sanity defense is a matter which may be considered through post-conviction relief proceedings under La.C.Cr.P. art. 924, et seq. [See, State v. Hart, 96-697 (La.3/7/97), 691 So.2d 651, 661, where the Louisiana Supreme Court relegated defendant’s claim that his counsel was ineffective for failing to raise an insanity defense to post conviction relief.] Of note, defense counsel advised the trial court prior to trial that it was abandoning an insanity plea after their expert could not say with medical certainty that defendant did not know the difference between right and wrong at the time of the offense. Defendant has failed to show that any further testing or examination by his own mental expert would have resulted in any evidence of insanity at the time of the offense. See, State v. Colvin, 452 So.2d 1214, 1219 (La.App. 2 Cir.1984), writ denied, 457 So.2d 1199 (La.1984).

By pro se assignment number 12, defendant contends the prosecutor asked leading questions of Detectives Russ and Bec-nel to steer their testimony towards facts that made it seem defendant’s statements were voluntary.

A review of the transcript shows there were no objections during the testimony of Detectives Russ and Becnel, with the exception of the one objection to the admissibility of the confession that was the subject of the motion to suppress. LSA-C.Cr.P. art. 841(A) provides, in part, that “[a]n irregularity or error | ^cannot be availed of after verdict unless it was objected to at the time of occurrence.” The purpose behind the contemporaneous objection rule under LSA-C.Cr.P. art. 841(A) is to put the trial judge on notice of an alleged irregularity so that he may cure the problem and to prevent the defendant from gambling for a favorable verdict and then resorting to appeal on errors that might easily have been corrected by an objection. When a defendant fails to lodge a contemporaneous objection to a witness’ testimony, the defendant waives his right to assert the error on appeal. State v. Singleton, 05-634 (La.App. 5 Cir. 2/14/06), 923 So.2d 803, 809, writ denied, 06-1208 (La.11/17/06), 942 So.2d 532.

There were no objections to the prosecutor’s alleged leading questions or to the testimony of Detectives Russ and Becnel. Therefore, defendant has waived his right to assert this issue on appeal. Of note, defendant is claiming the leading questions caused the suppression of facts surrounding his confession. Defendant was given the opportunity and did fully cross-examine the detectives about the manner of his confession. As such, we find that defendant did not suffer any prejudice by the manner in which the detectives were questioned at trial.

By pro se assignment of error 18, defendant argues the trial court erred in allowing autopsy photographs of the victim into evidence. He asserts the photographs were gruesome and were used to inñame the jury. He contends the post mortem photo of the victim’s face was not necessary and the photographs of the victim after attempts to resuscitate him were prejudicial because they showed wounds from the tubes and incisions that were not inflicted by defendant.

During the testimony of Dr. Susan Garcia, the forensic pathologist who performed the autopsy, the State sought to use nine autopsy photographs. Defense counsel objected on the basis the photos were inflammatory and some were gruesome. The State responded the photos were important to show the Indifferent angles of the wounds and what Dr. Garcia discovered in the autopsy. The trial judge overruled the objection and stated the photos were not bloody or gruesome. He concluded the photos would not excite or disturb the jury and that they had a legitimate purpose.

Post mortem photographs of murder victims are admissible to prove corpus delicti, to corroborate other evidence establishing cause of death, location, placement and number of wounds, as well as to provide identification of the victim. State v. Condley, 04-1349 (La.App. 5 Cir. 5/31/05), 904 So.2d 881, 892-893, writ denied, 05-1760 (La.2/10/06), 924 So.2d 163 (citations omitted). The mere fact a photograph is gruesome does not, in and of itself, render it inadmissible. State v. Jones, 99-798 (La.App. 5 Cir. 11/10/99), 748 So.2d 1176, 1179, writ denied, 00-0306 (La.12/8/00), 775 So.2d 1076. Photographic evidence is properly admitted unless it is so gruesome that it overwhelms the jurors’ reason and leads them to convict the defendant without sufficient evidence, i.e., when the prejudicial effect of the photographs substantially outweighs their probative value. Id., at 1179.

The nine autopsy photographs cannot be said to be so gruesome as to overwhelm the jurors’ reason and lead them to convict defendant without sufficient other evidence. Most of the photographs show cleaned up bullet wounds without considerable blood. Dr. Garcia referred to the photographs during her testimony to explain which wounds were lethal, debilitating, defensive, and where the projectiles were recovered. [See, State v. Jones, supra at 1180, where this Court found the autopsy photographs were not prejudicial even though one photo made it difficult to distinguish the injuries inflicted by the defendant from what was done during the autopsy. This Court noted that although some of the photographs were disturbing, none were particularly gruesome.]

hi/By pro se assignment of error 21, defendant argues the prosecutor imper-missibly referred to his failure to produce evidence or call witness to support his claim of self-defense during the prosecutor’s cross-examination of defendant. Defendant’s specific reference to page 280 in the record where this allegedly occurred does not reveal any questions or statements that could be construed to be a comment on defendant’s failure to present a defense.

It is only those direct and indirect references to a defendant’s failure to testify that are impermissible. LSA-C.Cr.P. art. 770(3); State v. Pendelton, 00-1211 (La.App. 5 Cir. 3/14/01), 783 So.2d 459, 464, writ denied, 01-1242 (La.1/25/02), 807 So.2d 243. Defendant took the stand and testified in his own defense. Therefore, no comment could possibly be construed to reference his failure to testify. Of note, the prosecutor is permitted to comment on the lack of evidence. LSA-C.Cr.P. art. 774; State v. Jackson, 04-293 (La.App. 5 Cir. 7/27/04), 880 So.2d 69, 73, writ denied, 05-0232 (La.5/6/05), 901 So.2d 1094.

By pro se assignment number 24, defendant contends that the prosecutor made prejudicial statements during his closing argument, but he failed to brief this assignment of error. Any assignment of error that is not briefed is considered abandoned on appeal. See, Uniform Rules-Courts of Appeal Rule 2-12.4, and State v. McGinnis, 04-1286 (La.App. 5 Cir. 10/6/05), 917 So.2d 471, 486, writ denied, 05-2469 (La.4/28/06), 927 So.2d 283.

This assignment of error is therefore deemed abandoned.

Defendant also requests an error patent review. This Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1976); State v. Weiland, 556 So.2d 175 (La.App. |2335 Cir.1990) regardless of whether the defendant makes such a request. The following matter was discovered:

The sentencing transcript does not show that the defendant was advised of the two-year prescriptive period for filing an application for post-conviction relief in accordance with LSA-C.Cr.P. art. 930.8. Although the commitment reflects that notice of the prescriptive period was given, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983). Accordingly, the trial court is hereby instructed to inform the defendant of the two-year prescriptive period by sending written notice to the defendant within ten days after the rendition of the appellate opinion and to file written proof in the record that defendant received said notice. State v. Pittman, 04-705 (La.App. 5 Cir. 12/28/04), 892 So.2d 641, 645-646, writ denied, 05-0228 (La.5/6/05), 901 So.2d 1094.

DECREE

Accordingly, for the reasons assigned herein, the defendant’s conviction and sentence are affirmed. The case is remanded to the trial court with instructions provided herein.

AFFIRMED; CASE REMANDED WITH INSTRUCTIONS.

      . Defendant gave two statements to the police. The first statement was made on September 29, 2003 while the police were investigating the murder and prior to defendant’s arrest. The second statement was made after defendant's arrest on October 3, 2003. This argument relates to the second statement, although defendant argues in his pro se brief that the first statement should have been suppressed as well.

        . A writ, # 2006-K-2529, was filed with the Louisiana Supreme Court on October 20, 2006 but no ruling has been issued to date.

      . See also, State v. Payne, 01-3196 (La. 12/4/02), 833 So.2d 927, where the Louisiana Supreme Court found the defendant's statement of “may I call a lawyer — can I call a lawyer,” was insufficient to invoke her right to counsel so as to require a suppression of her statement; State v. Cooper, 36,830 (La.App. 2 Cir. 3/5/03), 839 So.2d 995, 998-999, writ denied, 03-0999 (La. 10/10/03), 855 So.2d 330, where the Second Circuit concluded the trial court did not err in denying the defendant’s motion to suppress his confession despite the fact the defendant's father had made a comment when the defendant was advised of his rights prior to questioning that they might want an attorney later; and, State v. Thomas, 30,490 (La.App. 2 Cir. 4/8/98), 711 So.2d 808, writ denied, 99-0331 (La.7/2/99), 747 So.2d 8, where the Second Circuit determined the defendant’s question of, "[b]ut do I — do I need a lawyer,” upon being advised of his rights during questioning was not a request for an attorney. In Thomas, the court noted that the defendant’s "vacillating references to counsel fail[ed] to meet the objective requirement pronounced in Davis.” Id. at 812.

      . Of note, this Court has held that any discussions of penalties and different grades of homicides are superficial when not done in a threatening manner and do not render a confession involuntary. See, State v. Franklin, 03-287 (La.App. 5 Cir. 9/16/03), 858 So.2d 68, 73, writ denied, 03-3062 (La.3/12/04), 869 So.2d 817.

      . In Fasola, the defendant claimed his Due Process rights were violated when the officers failed to record his entire interrogation because it deprived him of the ability to present evidence of the circumstances that led to his confession.

      . The record does not show Dr. Post’s report was ever introduced into evidence during any trial court proceeding.

      . During his cross-examination of defendant, the prosecutor asked if defendant had any of the business records to show he was telling the truth about the existence or non-existence of business issues between defendant and the victim.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    Nancy MONSON v. TRAVELERS PROPERTY & CASUALTY INSURANCE COMPANY, Toys “R” Us-Delaware, Inc., ALS Properties, LLC, Sizeler Family Limited Partnership and Parish of Jefferson.
    No. 06-CA-921.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2007.
    Rehearing Denied May 14, 2007.

      Thomas A. Gennusa, II, Joseph S. Pia-cun, Metairie, LA, for Plaintiff/Appellant.

      Leonard J. Cline, Metairie, LA, for Plaintiff/Appellant.
    W. Paul Andersson, Margaret Frohn Swetman, New Orleans, LA, for Defendant/Appellee/Toys “R” Us.
    Connick and Connick, L.L.C., Guy H. Bumpas, IV, Metairie, LA, for Defendant/Appellee/Parish of Jefferson.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

IsThe judgment before this court is a grant of a defense motion for summary judgment in which the trial court dismissed plaintiffs action. We affirm.

Plaintiff, Nancy Monson, filed this action against several defendants, including Toys “R” Us-Delaware, Inc. (Toys “R” Us) and the Parish of Jefferson (Parish), for injuries sustained when she stepped in a hole in a grassy area between the Toys “R” Us parking lot curbing and the sidewalk. The matter was joined and discovery ensued. Subsequently, both Toys “R” Us and the Parish filed motions for summary judgment. After a hearing, the trial court granted both motions finding that, as a matter of law, neither Toy “R” Us nor the Parish owed a duty to plaintiff, and further, that the Parish had no notice of the defect. Those rulings are the subject of this appeal filed by plaintiff.

|4Initially we note that, although the appeal is from the grant of summary judgment in favor of both the Parish and Toys “R” Us, in brief to this court plaintiff only addresses issues regarding Toys “R” Us. Assignments of error not briefed or argued before this court are deemed abandoned. Milton v. Elmwood Care, Inc., 95-442 (La.App. 5 Cir. 10/31/95), 664 So.2d 503. Consequently, in this opinion we will only consider the propriety of the grant of summary judgment in favor of Toys “R” Us.

The facts surrounding the incident are undisputed. Plaintiff drove to Toys “R” Us to purchase a birthday gift. After she completed that task, she decided to meet her daughter for a meal at a restaurant across the street. She moved her car to the edge of the Toys “R” Us parking lot that was closest to the Hessmer Street Restaurant. As she stepped over the parking lot curbing onto the grassy area to reach the sidewalk, she stepped in a hole and fell, causing injuries to her ankle and leg. In her deposition, Ms. Monson testified that she did not move her car to the restaurant parking lot even though parking spaces were available there because she “didn’t want her car hit.”

Toys “R” Us admitted it was responsible for maintaining the grassy area pursuant to its lease with the owner of the property. However, counsel for Toys “R” Us argued successfully in the trial court that no duty was owed to the plaintiff because adequate pedestrian walkways were provided and maintained, but plaintiff chose instead to use an area which was never intended to be a pedestrian walkway to get to a restaurant across the street.

A summary judgment is appropriate “only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). The mover bears the initial | ^burden of proof. However, if the mover will not bear the burden of proof at trial, it is not necessary for the mover to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966 C(2)

To impose liability for an unreasonably dangerous defect a plaintiff has the burden to show that the thing was in the custodian’s custody or control, it had a vice or defect that presented an unreasonable risk of harm, the defendant knew or should have known of the unreasonable risk of harm, and that the damage was caused by the defect. La. C.C. art. 2817.1; Dauzat v. Thompson Const. Co., Inc., 02-989 (La.App. 5 Cir. 1/28/03), 889 So.2d 319. The addition of the element of knowledge to article 2317.1 has effectively turned it from strict liability to a negligence claim. Leonard v. Parish of Jefferson, 05-32 (La.App. 5 Cir. 4/26/05), 902 So.2d 502.

A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Verdin v. Rogers, 05-664 (La.App. 5 Cir. 3/14/06), 926 So.2d 603. Whether a duty is owed is a question of law. However, whether defendant has breached a duty owed is a question of fact. Mundy v. Department of Health and Human Resources, 620 So.2d 811 (La.1993). The inquiry is whether the plaintiff has any law, statutory, jurisprudential, or arising from general principles of fault, to support his claim. Verdin v. Rogers, supra. Thus, plaintiff must show that Toys “R” Us had a duty to her to make sure the grassy area in which she fell was free from holes and safe for pedestrians.

| (While an owner and occupier of land has a duty to discover any unreasonably dangerous conditions existing on his premises and to either correct those conditions or to warn of their existence, an owner is not the insurer of the safety of visitors. The duty of a property owner is to keep their premises in a safe condition for use in a manner consistent with the purposes for which they are intended. Dingier v. Zurich Commercial Ins. Co., 02-674 (La.App. 3 Cir. 12/11/02), 833 So.2d 524.

Not every defect gives rise to liability. The defect must be of such a nature to constitute a dangerous condition, which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Amest v. City of Breaux Bridge, 01-1034 (La.App. 3 Cir. 12/12/01), 801 So.2d 582.

As this court has explained in Stone v. Hebert, 99-1394 (La.App. 5 Cir. 5/17/00), 762 So.2d 220 at 222.

A landowner owes a plaintiff a duty to discover any unreasonably dangerous condition and to either correct the condition or warn of its existence. It is the court’s obligation to decide which risks are unreasonable, based upon the facts and circumstances of each case. In determining whether a given condition is unreasonably dangerous, the degree to which the damage may be observed by a potential victim, who may then provide self-protection, is a major factor.

Id. (Citations omitted)

In our de novo review of the issue of whether the condition of the grassy area presented an unreasonable risk of harm we are mindful of the fact that the criterion for this decision is “not a simple rule of law which can be applied mechanically. It requires a balancing of claims and interests, a weighing of the risk and the gravity of harm, and the consideration of individual and societal rights and obligations.” Bell v. State of La., et al., 553 So.2d 902, 907 (La.App. 4 Cir.1989) (Citations omitted).

|7While a landowner has an obligation to maintain lawns and other grassy areas, that obligation does not require a “table-top” smooth surface. Wood v. Cambridge Mut. Fire Ins. Co. (La.App. 2 Cir.1986), 486 So.2d 1129. It is inherent in grassy areas that are not intended or designed for use as a walkway, that they present minor hazards such as uneven ground or holes which could cause a person to trip and fall. Such conditions do not amount to defects that present an unreasonable risk of injury to tenants. Id.

In the matter before us, plaintiff argues the trial court erred in granting the motion for summary judgment because Toy “R” Us knew or should have known that the area was used by pedestrians, and caused several holes to be dug in the area after the removal of trees and shrubs, making the area unreasonably dangerous. To support this claim, plaintiff presented photos which show two plastic cups, and holes under the grassy cover of the area. Plaintiff asserts the cups are from patrons of a nearby bar using the area to get to their vehicles parked in the Toys “R” Us parking lot. Plaintiff also asserts that Toys “R” Us had actual knowledge of the holes it created. Additionally, plaintiff testified that she returned to the area a week and a half after her fall and photographed three holes in a relatively straight line which were about equidistant from each other. Plaintiff also offered photographs of the area to show that some shrubs still remain in the area. While plaintiff asserts that Acadian, a former company contracted by Toys “R” Us to keep the area mowed and maintained, dug the holes to remove trees, there is no evidence of that in the record. If, in fact, Toys “R” Us had created the holes by the removal of trees, and failed to cover the holes, the condition which caused plaintiffs fall may have given rise to an unreasonable risk of harm under the circumstances. In that case Toy “R” Us would have a duty to correct the condition it created. However, the assertion that Toys “R” Us created the condition and that |sthe area was used by bar patrons is merely a speculation by plaintiff and is unsupported.

Knowledge of the condition is an essential element for finding liability. Given the “circumstantial evidence” plaintiff presents, we cannot find she can meet her burden of proof on that essential issue.

While we do not agree with the conclusive statement made by the trial court that there is no duty owed by Toys “R” Us to maintain the grassy area, we do agree with the trial court that the summary judgment should be granted. We believe holes created in the area where plaintiff fell could give rise to the level of unreasonable risk of harm under the reasonable person standard. However, the plaintiff failed in her burden of proof that the holes were created by Toys “R” Us, or that Toys “R” Us had any knowledge of the holes. Thus, plaintiff has failed to show that, as a matter of law, Toys “R” Us owes her a duty that has been breached.

For the foregoing reasons, we affirm the judgment of the trial court and assess costs of this appeal to plaintiff.

AFFIRMED.

      . The appellate review of a grant of a summary judgment is de novo. Prince v. K-Mart Corp., 99-253 (La.App. 5 Cir. 8/31/99), 742 So.2d 718


author: RANDOLPH, Justice, SMITH, Chief Justice,

text:
    Shermeker POLLARD and Trellvion Gaines, A Minor, by and through his Natural Mother, Legal Guardian, and Next Friend, Shermeker Pollard v. SHERWIN-WILLIAMS COMPANY.
    No. 2003-CT-02030-SCT.
    Supreme Court of Mississippi.
    Feb. 15, 2007.
    Rehearing Denied May 24, 2007.

      Michael Casano, John Timothy Givens, Jackson, Timothy W. Porter, Patrick Mal-ouf, Ridgeland, attorneys for appellants.
    Katherine A. Smith, John G. Corlew, Jackson, Paul Michael Pohl, Richard H. Deane, attorneys for appellee.
   ON WRIT OF CERTIORARI

RANDOLPH, Justice,

for the Court.

¶ 1. The plaintiffs originally filed suit against The Sherwin-Williams Company (“Sherwin-Williams”); NL Industries, Inc.; Martin Floor Covering; Robert Case, individually; Fayette Lumber and Supply Co.; William Darsey, individually; Darsey Hardware Co.; Darsey Hardware and Furniture Co.; and Hirsh’s Store, alleging that Trellvion Gaines (“Trellvion”) had been seriously injured by ingesting lead found in paint. Sherwin-Williams is the only defendant in this appeal. Plaintiffs assert liability against Sherwin-Williams by virtue of exposure to Sherwin-Williams-brand paint containing lead and Sherwin-Williams’ failure to warn of the dangers caused by scraping paint containing lead in preparation for the application of non-lead paint. The circuit court granted summary judgment in favor of Sher-win-Williams when it adopted the “Report and Recommendation” of a special master. The Court of Appeals affirmed the dismissal solely on the statute of limitations issue. In granting the plaintiffs’ petition for writ of certiorari, this Court now considers whether the “minor saving statute” should apply and, if so, whether Sherwin-Williams was otherwise entitled to summary judgment. After due consideration, this Court reverses the judgment of the Court of Appeals and the circuit court’s blanket grant of summary judgment, finding that genuine issues of material fact exist as to numerous claims. Therefore, this case is remanded to the trial court for further proceedings in accordance with this opinion.

FACTS

¶ 2. Trellvion alleges cognitive deficiencies were caused by exposure to paint containing lead in a home built in the 1930s in Fayette, Mississippi. In December of 1978, the home was purchased by Johnny Crawford. In 1979, Doris Gaines, Trellvion’s maternal grandmother, moved into the home. By the mid-1980s, Sher-meker Pollard, Gaines’ daughter, was also living in the home. In 1991, Pollard gave birth to Trellvion. From birth until the home was substantially destroyed by fire on June 4, 1994, Trellvion lived in the home.

¶ 3. Reverend Martin Lias swore that in the early 1930s, he observed the house being painted with white Sherwin-Williams brand paint. Reverend Lias further swore that it was “lead paint” because “[t]he people that were painting [the house]” told him that. According to Gaines, the exterior and interior of the house had been painted white before she moved in with Crawford. Thereafter, the house was painted by Gaines and Vernon Collier, a local house painter, on numerous occasions between 1979 and 1994. According to Gaines, the home was painted once in the late 1970s, twice in the 1980s, and once in the early 1990s.

¶ 4. Gaines swore that she and Collier painted the entire inside and outside of the home in the late 1970s, using Sherwin-Williams “lead paint” purchased at Dar-sey’s Hardware in Fayette, Mississippi, along with white exterior “lead paint” which Crawford had at the house. Crawford swore that he had previously purchased ten to fifteen gallons of white Sher-win-Williams “lead paint.” Gaines stated the paint she purchased was Sherwin-Williams “lead paint,” because that is what she specifically asked for, that is what the label provided, and “[it’s] the only paint [she] ever bought.” She ordered the paint and Collier picked it up. By affidavit, Collier swore he used “lead containing ... Sherwin-Williams paints [he] had purchased from Darsey’s Hardware” on the Crawford home. Collier asserted that his opinion that the paint contained lead was based upon personal painting experience. Specifically, he stated that “[l]ead is a hardener” and in cleaning up the paint on this project, “[i]t wasn’t like the regular other paints when ... you wipe it and the paint come right on the rag.” Gaines said the exterior was painted white, the kitchen was painted blue, and the remainder of the interior was painted pink.

¶ 5. As to the first 1980s painting, Gaines stated that she and Collier painted the dining room blue, her bedroom pink, and the interior doors white. This “lead paint” was purchased from Porter’s in Natchez, although Gaines could not identify the brand of paint.

¶ 6. Regarding the second 1980s painting, Gaines stated she and Collier painted the den, the interior doors, and frames using Sherwin-Williams brand “lead paint” purchased at the Sherwin-Williams store in Natchez, and she knew the “lead paint” was Sherwin-Williams brand, “because that’s what [she] asked for.” This testimony was corroborated by her sister, Mildred. Additionally, Collier stated that the bathroom was painted green on this occasion, although he could recall no other details about the paint used.

¶ 7. Gaines swore that, for the early 1990s painting, she sent Collier to Fayette Lumber and Supply to pick up white and candy stripe colored “lead paint” for the bay windows, but she could not identify a brand. Collier’s affidavit provided that:

even around 1991, I purchased for use, and painted on the house where Trell-vion was living when he was diagnosed with lead poisoning, some Dutch Boy, Sherwin-Williams paints and other paints, some of which I believe contained lead, and which were purchased from Darsey’s Hardware, Hirsch’s Hardware and Fayette Lumber and Supply....

Collier’s and Mildred Gaines’ deposition testimony was that Sherwin-Williams brand paint was used during this project.

¶ 8. During the painting project in the early 1990s, Trellvion was an infant. Gaines observed Trellvion eating paint chips that were “swept to the side” during the project. In September of 1993, blood tests confirmed that Trellvion had been excessively exposed to lead.

¶ 9. On November 28, 2000, the Chancery Court of Jefferson County, Mississippi, appointed Pollard as Trellvion’s legal guardian for the purpose of asserting the present action. That same day, Pollard filed a complaint in the Circuit Court of Jefferson County, Mississippi, against Sherwin-Williams and the other initial defendants on behalf of herself and Trellvion. Pollard and Trellvion subsequently filed two amended complaints alleging that Sherwin-Williams was liable for damages caused by Trellvion’s exposure to “lead paint” and “lead paint” residuum based on strict liability, negligence, fraudulent concealment, and misrepresentation. The second amended complaint specifically provided that:

13. In connection with his exposure to an environment containing Defendants’ lead during the “exposure period,” the minor, Plaintiff, Trellvion Gaines, inhaled or otherwise came into contact with injurious amounts of Defendants’ lead, having neither knowledge nor reason to believe that the Defendants’ lead which he was living with, near or around was dangerous.
14. The minor plaintiff was also exposed to lead dust, chips and other debris which resulted from the scraping, sanding and other removal of lead paint from his dwelling which occurred during the required procedure for application of defendants’ non-lead based paints.

As a result thereof, the second amended complaint alleged that Trellvion:

has suffered physical and mental pain and anguish, other mental damages, loss of wage earning capacity and will continue to sustain damages of the above type in the future including, but not limited to, physical and mental pain and anguish, other mental and psychological damages, intellectual, cognitive, and behavioral injury, disability, future medical expenses and loss of the enjoyment of life.

Moreover, the second amended complaint alleged that Pollard “has suffered mental pai[n] and anguish in addition to expenses for medical treatment of [Trellvion], expenses in traveling to and from medical treatment for [Trellvion], other monetary, mental and emotional damages and injuries and ... will continue to sustain damages of the above type in the future.... ” ¶ 10. After the parties agreed to the appointment of a special master, Sherwin-Williams filed its motion for summary judgment. On May 5, 2003, the “Special Master’s Report and Recommendation” recommended granting Sherwin-Williams’ motion for summary judgment. The June 11, 2003 order of the circuit court adopted the “Special Master’s Report and Recommendation” and granted Sherwin-Williams’ motion for summary judgment. Thereafter, a motion to reconsider was denied and the final judgment of the circuit court dismissed the case with prejudice.

¶ 11. Before the Court of Appeals, the plaintiffs raised numerous issues, claiming that the circuit court erred in dismissing their claims with prejudice. The issues included:

([1]) whether the trial court erred in finding that Sherwin-Williams owed no duty to warn under Mississippi law of the dangers associated with surface preparation on its non-lead-based paint cans when it was foreseeable that lead paint may be scraped off in preparation for applying non-lead-based paint; ([2]) whether the trial court erred in finding that state common law was preempted by the Federal Hazardous Substancefe] Act; ([3]) whether the trial court erred in finding that Sherwin-Williams’s lead-based paint was not defectively designed; and ([4]) whether the trial court erred in finding that Pollard[’s] ... claims were barred by the statute of limitations.

Pollard, v. Sherwin-Williams, 955 So.2d 859, 2005 WL 2141454, *1, 2005 Miss.App.LEXIS 622, at *3-4 (Miss.Ct.App.2005). In affirming the circuit court, the Court of Appeals considered only the statute of limitations issue. After their motion for rehearing was denied by the Court of Appeals, the plaintiffs filed a petition for writ of certiorari with this Court. This Court granted the petition.

STANDARD OF REVIEW

¶ 12. “The Supreme Court’s review on the grant of certiorari shall be conducted on the record and briefs previously filed in the Court of Appeals and on any supplemental briefs filed.” Miss. R.App. P. 17(h). The trial court’s grant of a motion for summary judgment is reviewed by this Court de novo. See Wilner v. White, 929 So.2d 315, 318 (Miss.2006).

¶ 13. The Mississippi Rules of Civil Procedure provide summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c) (emphasis added). The Comment states that Miss. R. Civ. P. 56 “provides the means by which a party may pierce the allegations in the pleadings and obtain relief by introducing outside evidence showing that there are no fact issues that need to be tried.” (Emphasis added). Conversely, the Comment provides that “summary judgment is not a substitute for the trial of disputed fact issues. Accordingly, the court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried. ... [I]t cannot be used to deprive a litigant of a full trial of genuine fact issues.” (Emphasis added). In Daniels v. GNB, Inc., 629 So.2d 595 (Miss.1993), this Court addressed its review of a granted motion for summary judgment as follows:

[i]n our de novo review, this Court:

looks at all the evidentiary matters before [us] — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant would be given the benefit of the doubt.
[Mantachie Natural Gas District v. Mississippi Valley Gas Company, 594 So.2d 1170, 1172 (Miss.1992)].... Furthermore, in Mink v. Andrew Jackson Casualty Co., 537 So.2d 431, 433 (Miss.1988) [citing Ratliff v. Ratliff, 500 So.2d 981 (Miss.1986)], this Court said:
[a]ll motions for summary judgment should be viewed with great skepticism and if the trial court is to err, it is better to err on the side of denying the motion. When doubt exists whether there is a fact issue, the non-moving party gets its benefit. Indeed, the party against whom the summary judgment is sought should be given the benefit of every reasonable doubt.
[Id.] at 433. A motion for summary judgment should be overruled unless the trial court finds, beyond any reasonable doubt, that the plaintiff would be unable to prove any facts to support his claim. McFadden v. State, 580 So.2d 1210 (Miss.1991). If facts are in dispute, it is not the province of the trial court to grant summary judgment thereby supplanting a full trial with its ruling. “Accordingly, the court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried.” Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983)....

Daniels, 629 So.2d at 599 (emphasis added).

ANALYSIS

I. Whether the circuit court erred in dismissing Pollard’s claims on the basis of the statute of limitations and, separately, whether the Court of Appeals erred in holding that the statute of limitations had run in an action where a minor child was an injured party?

¶ 14. The plaintiffs argue that the statute of limitations of Miss.Code Ann. § 15-1-49 (Rev.2003) is tolled by the “minor savings statute,” Miss.Code Ann. § 15-1-59 (Rev.2003), until the minor achieves majority. By contrast, Sherwin-Williams urges this Court to affirm the exception adopted by the Court of Appeals. The Court of Appeals held that Miss.Code Ann. § 15-1-59 was inapplicable “since these claims were filed on behalf of [Trellvion] by and through his natural mother, legal guardian, and next friend.... ” Pollard, 955 So.2d at 859, n.2, 2005 WL 2141454, *4, n. 2, 2005 Miss.App.LEXIS, at *1, n. 2.

¶ 15. The applicable statute of limitations is provided by Miss.Code Ann. § 15-1-49(1), which states:

(1) [a]ll actions for which no other period of limitation is prescribed shall be commenced within three (3) years after the cause of such action accrued, and not after.

Miss.Code Ann. § 15-1-49(1).

¶ 16. However, as to Trellvion’s claims, this section must be read in conjunction with Miss.Code Ann. § 15-1-59, the “minor saving statute,” which provides:

[i]f any person entitled to bring any of the personal actions mentioned shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the actions within the times in this chapter respectively limited, after his disability shall be removed as provided by law. However, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.

Miss.Code Ann. § 15-1-59 (Rev.2003).

¶ 17. Both statutes refer to the accrual date of the cause of action. This Court has determined that “the cause of action accrues and the limitations period begins to run when the plaintiff can reasonably be held to have knowledge of the injury or disease.” Schiro v. American Tobacco Co., 611 So.2d 962, 965 (Miss.1992) (quoting Owens-Illinois, Inc. v. Edwards, 573 So.2d 704, 709 (Miss.1990)). In September of 1993, blood lead lab tests confirmed significantly elevated readings of lead, indicative of excessive exposure to lead. As such, Trellvion’s cause of action accrued no later than September of 1993. As Pollard’s claim is derivative, her cause of action accrued no later than September of 1993. As the original complaint was not filed until November 28, 2000, the three (3) year statute of limitations applicable to Pollard’s claims had already expired. However, because Trellvion was a minor at the time his cause of action accrued, his claims are tolled by Miss.Code Ann. § 15-1-59.

¶ 18. While the scope of Miss.Code Ann. § 15-1-59 has been limited, there is no applicable law denying Trellvion protection afforded by the aforementioned statute. In Taylor v. General Motors Corp., 717 So.2d 747 (Miss.1998), this Court recognized the protection afforded by Miss. Code Ann. § 15-1-59 when a father represented his own interests and those of his minor son. See id. at 750. In Taylor, the father and son were involved in a car wreck and a Louisiana attorney was hired to represent them both. See id. at 747. The lawsuit was filed against the automobile company and an insurer three (3) days prior to the expiration of the three (3) year statute of limitations, but was ultimately dismissed. See id. at 747-50. On appeal, this Court affirmed the dismissal with the caveat that:

the dismissal is without prejudice as to the claim of Taylor’s minor son, against whom the statute of limitations, pursuant to Miss.Code Ann. § 15-1-59 (1995), does not begin to run until the son attains his twenty first birthday. The minor’s claim remains viable for the time period should a determination be made to pursue the same.

Id. at 750 (emphasis added).

¶ 19. “The purpose of the savings statute is to protect the legal rights of those who are unable to assert their own rights due to disability.” United States Fid. & Guar. Co. v. Melson, 809 So.2d 647, 653 (Miss.2002) (quoting Rockwell v. Preferred Risk Mut. Ins. Co., 710 So.2d 388, 391 (Miss.1998)). As Trellvion was a minor at the time his cause of action accrued, as well as at present, his claims are tolled by the “minor saving statute” and not barred by Miss.Code Ann. § 15-1-49. Therefore, the Court of Appeals erred in barring Trellvion’s claims.

II. Whether the circuit court erred in granting Sherwin-Williams’ motion for summary judgment?

¶ 20. The special master’s “Report and Recommendation,” adopted in its entirety by the circuit court, contains numerous conclusions of law, based upon disputed facts. Specifically, the report finds multiple “undisputed facts,” restating nearly verbatim Sherwin-Williams’ “Itemization of Not Genuinely Disputed Facts.” This is despite Trellvion’s “Objections to Defendants Itemization of Facts” (“Objections”) controverting material facts, supported by sworn affidavits and deposition testimony, as required by the Mississippi Rules of Civil Procedure. See Daniels, 629 So.2d at 599 (“[i]n order for there to be genuine issues of material fact, the affidavits and other evidence must be sworn, made upon personal knowledge, and show that the party providing the factual evidence is competent to testify.”).

¶ 21. The special master’s report recites such “undisputed fact[s]” as “[n]one of Sherwin-Williams Company brand residential paint formulas for white, blue, pink, or grey paints dated June 1, 1973 through December 31, 1978 contained any lead in-grediente,]” that “Sherwin-Williams Company had stopped selling its brand paints through dealers, such as Darcy [sic] Hardware, by early 1976[,]” and that “Sherwin-Williams Company residential paints have a recommended shelf life of three years or less and Darcy [sic] Hardware maintains only small quantities of paint, which it sold in a matter of weeks.” These “undisputed facts” were properly controverted by sworn evidence in the form of affidavits by Drs. Paul Mushak and Roy Dowling, the deposition testimony of Doris Gaines, and the affidavit and deposition testimony of Johnny Crawford. Additional sworn testimony disputing the “undisputed facts” can be found in the deposition testimony of Reverend Lias and an expert report penned by John F. Rosen, MD. This opposing evidence, when “viewed in the light most favorable to [Trellvion,]” Mantachie Natural Gas, 594 So.2d at 1172, requires acceptance by the trial judge for summary judgment purposes, even though the judge — in this case, the special master— believes that a jury would reject the non-movant’s version. Sworn evidence viewed in the light most favorable to Trellvion shows that Crawford’s home was painted with white Sherwin-Williams paint in the early 1930s and was still painted white when Gaines moved in with Crawford in 1979; that Sherwin-Williams paint containing lead was obtained at Darsey Hardware in the late 1970s and 1980s, as both Gaines and Crawford swore; that both Gaines and Crawford purchased Sherwin-Williams brand paint containing lead in white, blue, and pink colors and applied it to the interior walls of Crawford’s home; that paint chips containing lead in white, green, pink, grey, blue, and light blue were found on the charred walls of the home by ALTEC Environmental Consultants following the 1994 fire; that Trellvion ingested paint chips containing lead; and that injury resulted therefrom.

¶ 22. Specifically, Reverend Lias swore that in the early 1930s he observed the house being painted with white Sherwin-Williams brand paint. Gaines gave a sworn statement that the home was painted white prior to 1979. Furthermore, she swore that in 1979, she purchased Sher-win-Williams brand paint containing lead in blue and pink colors and painted the interior of the home therewith, along with white Sherwin-Williams brand paint containing lead which Crawford claimed he had previously purchased. Dr. Mushak, a “toxicologist and environmental health scientist specializing in the toxicology and human risk assessment of environmental metals, especially lead[,]” swore that it is:

highly likely that lead paint at toxic exposure levels would have been available for purchase by those painting the Gaines home in the 1970s and even later and that lead paint was applied to the walls of that home in that time period. That lead paint would have been available for producing lead poisoning in the Gaines child at the time of the blood lead testing and before.

(Emphasis added). In reaching that conclusion, Dr. Mushak relied on studies from reliable sources such as the Center for Disease Control, the federal agency for Toxic Substances and Disease Registry, and the Department of Consumer Proteetion for the State of Connecticut. Gaines observed Trellvion ingesting paint chips “swept to the side” during the early 1990s painting project. Dr. Roy Dowling, an employee of ALTEC Environmental Consultants, issued a lead inspection report based upon X-Ray Fluorescence (XRF) readings obtained from the charred remains of the home’s painted walls. In that report, Dr. Dowling concluded that “thirty-four (34) of the forty-one (41) samples contained lead-based paint. White, green, pink, gray, blue, and light blue paint coatings were found to contain lead.” Finally, the report of John F. Rosen, MD, stated that:

with a reasonable degree of medical certainty, Trellvion was excessively exposed to lead based paint from very early infancy to and through his disease of childhood lead poisoning. With a reasonable degree of medical certainty, based upon substantially elevated XRF readings for lead and substantially elevated concentrations of lead in paint samples analyzed by AAS (ALFEC Environmental Consultants, Inc.; Dr. Paul Mushak), from accessible household areas for Trellvion living at his home at 553 Highway, his disease of lead poisoning was caused by ingestion of lead based paint and leaded dust therefrom at his home....
On cognitive testing by Dr. T. Lidsky ... Trellvion was found to have documented cognitive deficits in visual-spatial-constructional skills and memory, fine motor skills, visual and auditory attention, verbal fluency, non-verbal concept formation and cognitive flexibility. With a reasonable degree of medical certainty, based, in part, on my extensive clinical experience, and, based, in part, on review of the pertinent literature, Trellvion’s cognitive deficits were caused by his documented history of childhood lead poisoning.

¶ 23. Collectively, the sworn testimony of these witnesses, “viewed in the light most favorable to [Trellvion,]” Mantachie Natural Gas, 594 So.2d at 1172, creates genuine issues of material fact regarding the “undisputed facts” adopted by the special master and relied upon in the dissent. Is it more likely than not, given that eighty-three percent (83%) of the paint chips contained lead, that Trellvion may have ingested paint residuum containing lead? The fact that Sherwin-Williams denied manufacturing and marketing paint containing lead at the time of his exposure, despite evidence to the contrary, merely creates an issue for a jury to resolve.

¶ 24. Furthermore, the special master improperly assessed the credibility of witnesses in rendering the “Report and Recommendation,” despite his acknowledgment that our law clearly establishes that such credibility determinations were not within his province. Specifically, the “Report and Recommendation” provided that:

Doris Gaines and Vernon Collier have given contradictory statements. While it is not the role of a trial judge to judge the credibility of witnesses, the summary judgment standard does require a credible basis in evidentiary fact to create a material issue of fact. ... Mr. Crawford’s ... affidavits are directly contradictory. Mr. Crawford’s second affidavit is wholly without credible and competent fact.

(Emphasis added). The special master was without authority to ignore material, controverted sworn evidence, based upon which seemed more credible, which is not the test for admissibility or competency. According to Daniels, “[i]n order for there to be genuine issues of material fact, the affidavits and other evidence must be sworn, made upon personal knowledge, and show that the party providing the factual evidence is competent to testify.” 629 So.2d at 599. The testimony of multiple witnesses support a finding for summary judgment purposes, that Sherwin-Williams-brand paint containing lead was used in the home. Sherwin-Williams denies such assertions. These factual disputes are best left for a jury. See Miss. Const. art. 3, Section 31 (“[t]he right of trial by jury shall remain inviolate.... ”). Without question, “ ‘[t]he trial judge who hears the witnesses live, observes their demeanor and in general smells the smoke of the battle is by his very position far better equipped to make findings of fact which will have the reliability that we need and desire.’ ” Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947 (Miss.2000) (quoting Gavin v. State, 473 So.2d 952, 955 (Miss.1985)). However, in this summary judgment context, these advantages are non-existent. As such, the special master was no better equipped than this Court to make findings of fact. Nonetheless, he weighed conflicting evidence and then rendered a decision based on which party’s version he deemed more credible. Giving Trellvion “the benefit of every reasonable doubt[,]” Mink, 537 So.2d at 433, this is clearly an “issu[e] of fact sufficient to require denial of a motion for summary judgment ... [as] one party swears to one version of the matter in issue and another says the opposite.” Mantachie Natural Gas, 594 So.2d at 1172.

¶ 25. The role of the special master or trial court is not to weigh the facts, but “only [to] determine whether there are issues to be tried.” Brown, 444 So.2d at 362. In so doing, the special master was called upon to give Trellvion “the benefit of every reasonable doubt.” Mink, 537 So.2d at 433. The special master failed to do so in the case sub judice by (1) adopting Sherwin-Williams’ “undisputed facts” without acknowledging Trellvion’s evidence to the contrary and (2) assessing the credibility and then disregarding the testimony of witnesses for Trellvion. Individually and collectively, these provide only examples of multiple issues of material fact that can only be properly resolved by a jury.

¶ 26. In Daubert v. Merrell Dow, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court held, “in the event the trial court concludes that the scintilla of evidence presented supporting a position is insufficient to allow a reasonable juror to conclude that the position more likely than not is true, the court remains free to direct a judgment ... and likewise to grant summary judgment.” Id. at 596, 113 S.Ct. 2786. Webster’s Dictionary defines “scintilla” as, “a tiny amount.” Webster’s II New College Dictionary 989 (2001). In this matter, the special master was presented with considerably more than a tiny amount of evidence. Accordingly, there are genuine issues of material fact which a jury, presented with evidence and testimony, must ultimately decide.

III. Whether the circuit court erred in finding that Sherwin-Williams owed no duty, under Mississippi law, to warn of the dangers associated with surface preparation on its non-lead paint cans?

¶ 27. In addressing Trellvion’s failure-to-warn claim, the special master concluded that the “claims attempt to impose warning not required by federal law. This is the kind of claim preempted by [the] [Federal Hazardous Substances Act (‘FHSA’)].” The FHSA was enacted in 1960 and mandated the labeling of certain “hazardous” consumer products intended for use in the household or by children. See Chem. Specialties Mfrs. Ass’n v. Allenby, 958 F.2d 941, 945 (9th Cir.1992). In 1966, the Act was significantly amended to include a preemption provision to prevent each state from creating different labeling requirements for hazardous substances. See House Committee on Interstate and Foreign Commerce, Child Protection Act of 1966, H.R.Rep. No. 2166, 89th Cong., 2d Sess. 3 (1966), reprinted in 1966 U.S.Code Cong. & Admin. News 4095, 4097. The preemption provision provided:

[i]t is hereby expressly declared that it is the intent of the Congress to supersede any and all laws of the States and political subdivisions thereof insofar as they may now or hereafter provide for the precautionary labeling of any substance or article intended or suitable for household use (except for those substances defined in sections 2(f)(2) and (3) of this Act) which differs from the ro-quirements or exemptions of this Act or the regulations or interpretations promulgated pursuant thereto. Any law, regulation, or ordinance purporting to establish such a labeling requirement shall be null and void.

Child Protection Act of 1966, Pub.L. No. 89-756, 80 Stat. 1303 (1966) (current version at 15 U.S.C. § 1261, et seq.) (emphasis added).

¶ 28. This Court agrees that post-1966 FHSA amendment, any theory of recovery based upon “the precautionary labeling of any substance or article intended or suitable for household use ... which differs from the requirements or ... the regulations or interpretations promulgated pursuant thereto.... [S]hall be null and void.” Id. The FHSA amendment which added the preemption provision clearly applies to failure-to-warn causes of action brought after adoption of the amendment, and which are based upon “requirements” beyond those mandated by the FHSA. However, “if Congress intended to preclude all common-law causes of action,” it would have done so expressly. Medtronic, Inc. v. Lohr, 518 U.S. 470, 487, 116 S.Ct. 2240, 2251, 135 L.Ed.2d 700, 717 (1996). As such, this Court finds that Trellvion can proceed with common-law liability claims that do not run afoul of FHSA preemption. Therefore, any pre-1966 FHSA amendment theories of recovery asserted by Trellvion, whether founded upon negligence, failure to warn, defective design, or fraud, are not preempted. Any posiAL966 FHSA amendment theories of recovery not based upon “the precautionary labeling of any substance or article intended or suitable for household use,” or based upon a violation of the requirements, regulations, or interpretations of 15 U.S.C. § 1261 (i.e., a claim of noncompliance with the FHSA), are not preempted.

CONCLUSION

¶ 29. This Court reverses the judgment of the Court of Appeals in part, finding that Trellvion’s claims are not barred, as the “minor saving statute” is applicable, and affirms the judgment of the Court of Appeals in part as to the dismissal with prejudice of Pollard’s claims. Moreover, this Court reverses the circuit court’s grant of summary judgment for Sherwin-Williams and finds that genuine issues of material fact exist. Accordingly, this dispute is remanded for a trial.

¶ 30. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED IN PART AND AFFIRMED IN PART, AND THE JUDGMENT OF THE CIRCUIT COURT OF JEFFERSON COUNTY IS REVERSED. THIS CASE IS REMANDED TO THE CIRCUIT COURT OF JEFFERSON COUNTY FOR TRIAL.

WALLER AND COBB, P JJ., DIAZ AND GRAVES, JJ., CONCUR. SMITH, C.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY, CARLSON, AND DICKINSON, JJ.

SMITH, Chief Justice,

Concurring in part and dissenting in part:

¶ 31. I agree with the majority as to Issues I, Minor’s Saving Clause, and Issue III, the failure-to-warn claim. I disagree as to Issue II, regarding granting of summary judgment as to the identification of the product as Sherwin-Williams lead base paint.

a. Identification of the Product Involved

¶ 32. “[i]t is incumbent upon the plaintiff in any products liability action to show that the defendant’s product was the cause of the plaintiffs injuries.” Moore v. Miss. Valley Gas Co., 863 So.2d 43, 46 (Miss.2003). Pollard and Trellvion argue that, prior to 1970, the house was painted with Sherwin-Williams lead-based paint. The record shows that there is no admissible evidence to support this allegation. Pollard and Trellvion submit by deposition, testimony of Reverend Lias who said in the 1930s individuals painting the house told him they were using paint with lead in it. This testimony is inadmissible hearsay and insufficient to avoid summary judgment; the special master and judge so held.

¶ 33. Pollard and Trellvion further allege that the house was painted using Sherwin-Williams lead paint on four separate occasions between the late 1970s and 1994. Plaintiffs claim that the lead-based paint used was purchased at local hardware stores and once in the mid-1980s from a Sherwin-Williams store. Plaintiffs assert that the house was painted with white, blue, pink, and grey paint. The record indicates that the home was purchased in 1978 by Johnny Crawford, and subsequently inhabited by Gaines. Therefore, Gaines could not have painted the home until after 1978. Gaines could not have used lead-based paint that was sitting around for years on the shelf of Darsey’s Hardware, because the record reflects that she had to order the paint that she purchased at the store. Plaintiffs have no paint cans or labels to prove that Sherwin-Williams Company lead-containing paint was applied to the home. At best, Plaintiffs have advanced a mere scintilla of col-orable evidence which absolutely will not defeat a motion for summary judgment.

¶ 34. Further, and more importantly, the undisputed facts show that Sherwin-Williams had removed lead pigments from all of its interior residential paint by 1955 and from all interior and exterior residential paint by no later than 1973. None of Sherwin-Williams’ residential paint formulas for white, blue, pink, or grey paints dated June 1, 1973 through December 31, 1978 contained any lead ingredient. Sher-win-Williams stopped selling its Sherwin-Williams-brand residential paints through independent dealers such as local hardware stores by early 1976.

¶ 35. In Luvene v. Waldrup, 903 So.2d 745, 748 (Miss.2005), this Court stated that “[t]he non-moving party’s claim must be supported by more than a mere scintilla of colorable evidence; it must be evidence upon which a fair-minded jury could return a favorable verdict.” In Luvene, this Court found an affidavit fatally defective and deficient regarding a critical element of the underlying claim. The affidavit was merely a broad summarization of the required elements of the claim. This Court found that summary judgment was appropriate because “[t]he affidavit failed to set forth specific facts and certainly did not provide more than a mere scintilla of color-able evidence.” Id.

¶ 36. Similarly, Plaintiffs only product identification comes by way of the affidavits of Doris Gaines and Johnny Crawford, who testified they saw the words “lead” or “lead paint” on some portion of the labels. Neither Gaines nor Collier have personal knowledge of whether the paint they used contained any lead, and both have given contradictory statements. During Collier’s deposition he admitted he was just assuming that the paint contained lead because it was washable. Collier does not assert that any one told him the paint contained lead, that he read the labels, nor that he asked for lead-containing paint.

¶ 37. During Gaines first deposition, she admitted that she did not look at the labels to see if the paint contained lead, but in her second deposition she claimed that she read the labels and saw that it was lead-based. This testimony contradicts, without explanation, her previous testimony, and such cannot defeat a motion for summary judgment.

¶ 38. What this all adds up to is unsupported speculation and allegations, and they are not sufficient to defeat a motion for summary judgment. Gorman-Rupp Co. v. Hall, 908 So.2d 749, 757 (Miss.2005); Adams v. Cinemark USA, Inc., 831 So.2d 1156, 1162 (Miss.2002). In Corey v. Skelton, 834 So.2d 681 (Miss.2003), this Court affirmed the trial court grant of summary judgment. In Corey, the plaintiffs mere allegation was insufficient to establish a critical element of his claim, in light of the “voluminous record” to the contrary. Id. at 684.

¶ 39. Plaintiffs have failed to provide sufficient evidence to establish that Sher-win-Williams manufactured the alleged lead paint. Therefore the trial court’s dismissal of Plaintiffs’ product liability claims as unmeritorious was proper and should be affirmed.

¶ 40. For the aforementioned reasons, I respectfully concur in part and dissent in part.

EASLEY, CARLSON AND DICKINSON, JJ., JOIN THIS OPINION.

      . Specifically, he stated that “I was down there talking with the boys, and I liked to knocked [sic] the bucket over with the little paint in it and picked it up and looked at it. It was Sherwin-Williams paint.”

      . The special master did not abuse his discretion in treating this testimony as inadmissible hearsay.

      . Collier did equivocate somewhat on cross-examination in a deposition. However, on direct examination in the same deposition, he confirmed verbatim statements from his affidavit.

      . Sherwin-Williams argued only that Pollard’s claims were barred by the statute of limitations and the special master concluded only that "[t]he statute of limitations bars Shermeker Pollard’s claims.” (Emphasis added). Nonetheless, the Court of Appeals ruled that Trellvion’s claims were barred by the statute of limitations, an issue not before that court, thus requiring the expansion of this issue.

      . Trellvion was only two (2) years old in September of 1993.

      . For example, Miss.Code Ann. § 15-1-59 applies only to the limitations of actions found within Chapter 1, Title 15 of the Mississippi Code. See Cole v. State, 608 So.2d 1313, 1316 (Miss.1992).

      . Professor of Pediatrics and Head of the Division of Environmental Sciences at the Children's Hospital at Montefiore Medical Center and the Albert Einstein College of Medicine in Bronx, New York.

      . For example, Dr. Mushak cites the findings of the Department of Consumer Protection for the State of Connecticut regarding a report memo to the United States Department of Health and Human Services "dated September 17, 1985, showing that the Department found in its investigations that some lead based paint over 22 years old was still on retail shelves.”

      . This finding, combined with Reverend Lias’ sworn testimony that white Sherwin-Williams brand paint was used on the home in the early 1930s, creates a genuine issue of material fact for a jury to decide whether that paint contained lead. This is especially the case in light of the fact that Sherwin-Williams has proffered evidence that lead pigments were only removed from all of their interior and exterior residential paint by 1973.

      . Not mere allegations as asserted in the separate opinion.

      . This is not simply the view of this Court. The special master wrote following removal and remand, "United States District Judge David Bramlette, III ... commented that the evidence offered by the Plaintiffs was 'very weak and suspect[, but that] ... such evidence does provide a slim possibility for recovery[.]' ”