text:
    Baron McGEE, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00497-COA.
    Court of Appeals of Mississippi.
    Jan. 17, 2006.
    Rehearing Denied May 23, 2006.

      Minor F. Buchanan, Jackson, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   IRVING, J., for the Court.

¶ 1. A Hinds County jury convicted Baron McGee of murder and aggravated assault. He was given concurrent sentences of life and twenty years, respectively, in the custody of the Mississippi Department of Corrections. Feeling aggrieved, McGee appeals. He alleges the following as errors: (1) the jury’s verdict was contrary to the overwhelming weight of the evidence; (2) the trial court erred by not granting his motion for a directed verdict at the close of the State’s case and at the conclusion of the trial and by not granting his motion for a new trial or motion for a judgment notwithstanding the verdict; (3) the trial court erred in denying his successive motions for discovery to be provided with a witness’s criminal history; (4) the trial court erred in overruling objections and denying numerous motions for a mistrial made in response to a witness’s non-responsive, inadmissible, and prejudicial answers; (5) the trial court erred in allowing certain rebuttal testimony; (6) the trial court erred in denying motions for a mistrial stemming from numerous prejudicial and improper questions asked by the prosecution during its cross-examination of a certain witness; (7) the trial court erred in denying a motion for a mistrial after the prosecution made a “send a message to the community” argument to the jury, commented on personal opinions of guilt, and made the comment that just one juror could cause a hung jury; (8) the verdict of the jury should be set aside because McGee was denied a fair trial due to pros-ecutorial misconduct; (9) the trial court erred in denying the jury instructions submitted by McGee; and (10) the verdict of the jury should be set aside because McGee was denied a fair trial due to ineffective assistance of counsel.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. Late on the night of September 20, 2001, Cartrell Sessions was shot and killed. His friend, Ahmed Paige, was shot in the neck, but survived. Based on Paige’s statement to the police, Baron McGee was arrested and charged with murder and aggravated assault.

¶ 4. At trial, Paige testified that he and Sessions were at his apartment on the night of September 20, 2001, when McGee came by to retrieve some videotapes and other items that belonged to him. According to Paige, he, Sessions, and McGee conversed for a while and then decided to walk to a nearby convenience store. Also, according to Paige, McGee and Sessions got into an argument while en route to the store. Paige further testified that after the two stopped arguing, McGee walked ahead of him and Sessions to a point around the corner of a building, and then turned and started shooting at them, killing Sessions and wounding Paige in the neck. Paige admitted that he did not actually see McGee shoot Sessions; he only saw a “dark colored arm” extend out from the area (around the corner of the building), where the gunshots that fatally wounded Sessions were fired, but he realized that it had to have been McGee who shot Sessions after he saw McGee standing in the area from where the two previous shots were fired, and after he saw McGee’s face right before McGee shot him in the neck.

¶ 5. Candace Burton, a resident of the apartment complex where Paige lived, testified that she was outside of her sister’s apartment when she heard some men arguing. She said that she turned her attention towards the argument and witnessed one of the men “pull a gun from his side and shoot the other two men.” The following day, Burton gave a statement to the police detailing what she had witnessed the night before. However, her initial statement to the police was totally inconsistent with her testimony at trial. Nevertheless, Burton remained steadfast in her position that she saw the shooter, and she positively identified McGee as the shooter from a photographic lineup of six individuals. In addition, Burton made an in-court identification of McGee as the person she saw shoot the two men.

¶ 6. McGee testified in his own defense. He denied being involved in the crime, denied shooting Sessions or Paige, and denied being present at Paige’s apartment on the night that Sessions and Paige were shot. McGee’s alibi was that he spent the entire night of the date of the incident at T.J. Jackson’s house. McGee also denied owning a gun. He admitted that he knew Paige but denied knowing Sessions.

¶ 7. Jackson testified that he did not know McGee’s whereabouts the entire evening of September 20, 2001. He acknowledged that McGee came home after work and they, along with other friends, drank beer that night. Jackson further testified that he became so drunk that he passed out around eight or nine that night. When he awoke around one o’clock the next morning, McGee was outside listening to music. Jackson admitted that all he knew was that McGee was present at his house when he passed out and that when he awoke McGee was there, but he had no idea whether McGee had remained at the house while he was asleep.

¶ 8. Altawan Bibbs was called by the State to rebut McGee’s alibi defense. Bibbs testified that he had been with McGee and Sessions on numerous occasions and that McGee did indeed know who Sessions was. Bibbs also testified that McGee came by his house around 11:00 p.m. on the night of the shooting. Bibbs further testified that he specifically remembered this fact because shortly after McGee left his house, he received a phone call informing him of the death of Sessions and the shooting of Paige.

¶ 9. Additional facts will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION ' OF THE ISSUES

(1) Weight and Sufficiency of the Evidence

¶ 10. In his first two assignments of error, McGee combines his arguments regarding the legal sufficiency of the evidence with his arguments regarding the weight of the evidence. We address them separately below.

(a) Weight of the Evidence

¶ 11. McGee asks us to reverse his convictions because the jury’s verdict was contrary to the overwhelming weight of the evidence and the trial court erred in denying his motion for a new trial. ‘When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, [appellate courts] will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005) (quoting Herring v. State, 691 So.2d 948, 957 (Miss.1997)). “However, the evidence should be weighed in the light most favorable to the verdict.” Id. It is within the discretion of the court whether to grant a new trial, and this discretion should be exercised “only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947(¶ 18) (Miss.2000)).

¶ 12. McGee’s basic contention is that the State’s case relied wholly on the testimony of two witnesses whose stories are questionable at best. McGee also argues that Paige would have been a prime suspect in the absence of his own self-serving testimony, and that Burton lacked credibility, because her trial testimony differed from the initial statement which she gave to the police. McGee also points out that the physical facts of the crime scene did not support Page’s and Burton’s testimony.

¶ 13. We cannot view the evidence in the light most favorable to the verdict and say that an unconscionable injustice resulted from the jury’s verdict, even though we acknowledge that there were unexplained blood trails at the crime scene and a perplexing situation about the location of a mug that was believed to be in Sessions’s possession when the shooting occurred, but yet was found some distance from Sessions’s body. Furthermore, we are cognizant of the inconsistencies in Burton’s statement to the police and her trial testimony. If this conflicting evidence was the only substantive proof that the State presented to the jury, perhaps McGee’s argument for a new trial would be more compelling.

¶ 14. However, as previously discussed, Burton identified McGee as the person she saw shoot the two men that night. She positively picked McGee out of a photographic lineup of six individuals. She also made an in-court identification of McGee as the shooter. The discrepancies in Burton’s account of what happened that night are of little consequence because she correctly stated that two men got shot that night; she correctly stated that one of the men was killed and the other was wounded; and she correctly stated that the wounded man ran into an apartment and immediately came out and left hurriedly in a car. Paige provided corroboration for Burton’s testimony. Paige identified McGee as the person who shot him in the neck. Paige testified that McGee shot him in the neck shortly after McGee shot and killed Sessions. There was also physical evidence which corroborated both Paige’s and Burton’s testimony. There was a blood trail leading from Sessions’s body to Paige’s apartment, blood throughout Paige’s apartment, more specifically his bathroom sink, and blood in Paige’s car. All of this helped substantiate Paige’s claim that after he got shot, he ran to his apartment to check on his wound before getting into his car and driving himself to the hospital. It also substantiates Burton’s claim of what one of the men did after getting shot.

¶ 15. We cannot say that the evidence preponderates heavily against the jury’s decision to find McGee guilty. Therefore, the trial court did not abuse its discretion in denying a new trial. This allegation of error is without merit.

(b) Sufficiency of the Evidence

¶ 16. McGee contends that the trial court erred in denying his motion for a directed verdict at the close of the State’s case and at the conclusion of the trial, as well as in denying his motion for a judgment notwithstanding the verdict. A motion for a directed verdict or judgment notwithstanding the verdict both challenge the legal sufficiency of the evidence. The Mississippi Supreme Court has stated:

that in considering whether the evidence is sufficient to sustain a conviction in the face of motion for a directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows “beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” However, this inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Bush, 895 So.2d at 843(¶ 16) (quoting Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). It is a well-settled principle of Mississippi law that “[w]hen the defendant proceeds with his case after the State rests and the court overrules the defendant’s motion for a directed verdict, the defendant has waived the appeal of that directed verdict.” Shelton v. State, 853 So.2d 1171, 1186(¶49) (Miss.2003) (citing Holland v. State, 656 So.2d 1192, 1197 (Miss.1995)). Therefore, McGee effectively waived his motion for a directed verdict when the trial court denied the motion and he proceeded with his case. Consequently, we limit our discussion to McGee’s motion for a directed verdict at the conclusion of the trial and motion for a judgment notwithstanding the verdict.

¶ 17. Considering the evidence in the light most favorable to the State, we find that there was more than sufficient evidence for a reasonable jury to find that McGee committed the crimes of murder and aggravated assault. The State not only produced a complaining victim, but also an eyewitness to the crime. Paige testified that McGee shot him in the neck after McGee shot and killed Sessions. Burton testified that she saw McGee shoot both Sessions and Paige. During the trial, both witnesses made positive identifications of McGee as the shooter. Dr. Steven Hayne, a forensic pathologist who performed an autopsy on Sessions, determined that Sessions’s death was a homicide caused by two equally fatal bullet wounds to the chest. According to Paige and Burton, McGee inflicted these wounds. Therefore, the evidence presented was sufficient to support a conviction; McGee’s point of error is without merit.

(2) Discovery Violations

¶ 18. McGee argues that the trial court erred in not granting his request for Paige’s criminal record. More specifically, McGee contends that Paige’s prior criminal convictions would have been exculpatory evidence. He points us to Uniform Circuit and County Court Rule 9.04 in support of his claim that he should have been provided Paige’s criminal record. The trial court found that the rule does not require such discovery. We agree.

¶ 19. The rule requires the prosecution to disclose the criminal record of the defendant, not that of victims or other witnesses. Further, we fail to discern how Paige’s criminal record would have been exculpatory evidence for McGee. It is true that the record may have aided the defense in impeaching Paige’s credibility, but that is about the extent of its utility. Nevertheless, McGee still may have been able to obtain Paige’s criminal record if he could have shown how the record was material to his defense. Rule 9.04(A)6 provides in part that “[u]pon a showing of materiality to the preparation of the defense, the court may require such other discovery to the defense attorney as justice may require.” McGee did not show in the trial court, and has not shown in this appeal, how Paige’s criminal record was material to the preparation of his defense. Therefore, we find no error in the ruling of the trial judge, refusing to order additional discovery in this regards.

(3) Paige’s Testimony

¶ 20. McGee contends that the trial court erred during the testimony of Ahmed Paige. McGee specifically contends that the trial court (1) failed to require Paige to provide timely responses to questions, (2) allowed Paige to insert non-responsive, damaging statements into the record, and (8) failed to admonish the jury as needed. McGee contends that these errors served to deny him his constitutional rights to a fair trial and to confront witnesses against him. He argues that the trial court should have granted a mistrial due to Paige’s non-responsive, inadmissible, and prejudicial answers on cross-examination.

¶ 21. Our review of the record indicates that McGee was not denied his constitutional right to confront witnesses against him. He was allowed to cross-examine Paige, as well as all other witnesses who testified for the State. As to his contention that Paige’s actions on cross-examination denied him a fair trial, we find that Paige actually answered all questions asked of him on cross-examination, although not in the manner that the defense would have liked. We know of no case law that requires a finding that a defendant is denied a fair trial when questions are asked of a witness and the court fails to instruct the witness to answer the questions to the satisfaction of the asking attorney. However, McGee does cite Mississippi Rules of Evidence 402, 611, and 702 as support for his contention. A thorough review of these rules reveals their inapplicability to McGee’s contention. Furthermore, McGee fails to instruct us on the applicability of these rules to his argument. Therefore, we find this issue to be without merit.

(k) Uniform Circuit and County Court Rule 9.05

¶ 22. McGee argues that the trial court erred in allowing Bibbs’s rebuttal testimony. He contends that it was error because the defense provided “informal notice” of an alibi defense by informing the prosecution of alibi witnesses, T.J. Jackson and Sam Marshall. McGee also argues that the prosecution failed to comply with Uniform Circuit and County Court Rule 9.05 when it failed to inform the defense of the identity of any potential rebuttal witnesses. McGee further argues that the prosecution kept Bibb’s identity a secret in order to surprise and ambush him at trial, thereby causing severe prejudice to his rights.

¶ 23. Uniform Circuit and County Court Rule 9.05 imposes reciprocal responsibilities upon the prosecution and defense when dealing with alibi defense discovery. The rule provides in pertinent part:

Upon the written demand of the prosecuting attorney stating the time, date and place at which the alleged offense was committed, the defendant shall serve .... upon the prosecuting attorney a written notice of the intention to offer a defense of alibi, which notice shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon which the defendant intends to rely to establish such an alibi.
Within ten days thereafter, but in no event less than ten days before the trial, unless the court otherwise directs, the prosecuting attorney shall serve upon the defendant or the defendant’s attorney a written notice stating the names and addresses of the witnesses upon whom the state intends to rely to establish the defendant’s presence at the scene of the alleged offense and any other witnesses to be relied on to rebut testimony of any of the defendant’s alibi witnesses.
If, prior to or during trial, a party learns of an additional witness whose identity, if known, should have been included in the information previously furnished, the party shall promptly notify the other party or the party’s attorney of the name and address of such additional witness.

URCCC 9.05. The record indicates that the prosecution complied with the first part of the rule. The defense admitted, on the record, that it did not give the prosecution any unitten notice of an alibi defense. Having failed to fulfill its obligations under the rule, the defense cannot now claim unfair surprise and prejudice to its case.

¶ 24. Moreover, the record indicates that Bibbs was discovered to be a rebuttal witness during the course of the trial. The record also indicates that as soon as Bibbs’s identity and knowledge were discovered by the prosecution, the defense was informed and given access to the witness. The trial court offered the defense additional opportunities to interview Bibbs. Furthermore, the court was willing to postpone the trial for the remainder of that day in order to provide the defense more time to interview Bibbs. After conferring with his attorney, McGee refused the offer from the court and decided to proceed with the case. The court treated McGee’s actions as a waiver of his objection to Bibbs being able to testify. We agree.

¶ 25. In short, the prosecution complied with the dictates of the rule when it learned that Bibbs was a rebuttal witness. Therefore, we find that the court properly-allowed Bibbs to testify. We find no merit in this allegation of error.

(5) Motions for Mistrial

¶ 26. McGee contends that the trial court erred in denying his motions for a mistrial during the prosecutor’s cross-examination of him. McGee argues that the cumulative effect of the prosecutor’s improper and prejudicial questions warrant reversing his conviction. He claims that the prosecutor’s actions resulted in a jury decision influenced by prejudice. McGee specifically complains of the prosecutor asking him if he ever owned a gun after the court specifically told the prosecutor that she could not ask him that question. He also complains about the prosecutor’s improper insinuation of a “relationship” between him and Jackson.

¶ 27. ‘Whether to grant a motion for a mistrial is within the sound discretion of the trial court. The standard of review for denial of a motion for mistrial is abuse of discretion.” Shelton, 853 So.2d at 1183(1141) (citing Pulphus v. State, 782 So.2d 1220, 1223(¶ 10) (Miss.2001)). “The failure of the court to grant a motion for a mistrial will not be overturned on appeal unless the trial court abused its discretion.” Id. (citing Bass v. State, 597 So.2d 182, 191 (Miss.1992)).

¶28. We find that the trial court did not abuse its discretion by denying the various motions for a mistrial. There was no showing of conduct that resulted in substantial or irreparable harm to McGee’s case. In fact, the record reflects that the court sustained a number of the defense’s objections during the prosecution’s cross-examination of McGee. As to McGee’s specific complaints, the court ruled that the prosecution could ask McGee about ownership or possession of a gun on the date of the shooting or just prior to that date. A review of the record reveals that the prosecution defied the court order and specifically asked McGee if he had ever owned a gun. However, McGee never answered the question because it was objected to and the objection was sustained. The prosecution went on to ask McGee if he had owned a gun on the date of the shooting, and McGee replied, “No, I did not.” As to the question about some type of “relationship” between McGee and Jackson, the prosecutor apologized to the court for the improper question, and McGee never answered the question because of the sustained objection. The trial court refused to grant a mistrial because it believed that there was not any significant prejudice to McGee by the asking of these questions. We agree. Therefore, we find that McGee was not denied his right to a fair and impartial trial.

(6) Prosecutorial Misconduct

¶ 29. McGee argues that the trial court erred by not granting him a mistrial during the prosecution’s closing arguments. McGee contends that the prosecution made an improper “send a message to the community” emotional appeal to the jury. He also maintains that the prosecutor improperly commented on her personal opinion of his guilt. He further contends that the prosecutor also improperly commented on the fact that only one juror could cause a hung jury.

¶ 30. It is well settled under Mississippi law that “counsel is allowed considerable latitude in the argument of cases and is limited not only to the facts presented in evidence, but also to deductions and conclusions he may reasonably draw therefrom, and the application of the law to the facts.” McGruder v. State, 886 So.2d 27, 32-33(¶ 20) (Miss.Ct.App.2004) (citing Wells v. State, 698 So.2d 497, 506 (Miss.1997)). “The test to determine if an improper comment by a prosecutor requires reversal is whether the natural and probable effect of the prosecuting attorney’s argument created unfair prejudice against the accused resulting in a decision influenced by prejudice.” Logan v. State, 773 So.2d 338, 350(¶ 48) (Miss.2000) (quoting Dunaway v. State, 551 So.2d 162, 163 (Miss.1989)). The trial judge is vested with the discretion to determine whether an objectionable comment is so prejudicial that a mistrial should be granted. Id. (citing Alexander v. State, 602 So.2d 1180, 1182 (Miss.1992)). In this instance, however, the trial judge was never required to make a determination regarding the extent of any possible prejudice, because McGee did not object to the argument which he now contends was prejudicial. Since McGee did not object to the portion of the prosecutor’s closing argument which he now finds offensive, we decline to consider this issue any further, as the issue is procedurally barred. Gatlin v. State, 724 So.2d 359, 369(¶ 43) (Miss.1998)

(7) Jury Instructions

¶ 31. McGee next argues that the trial court erred by refusing to grant his jury instruction D-4. McGee contends that the instruction properly contrasted reasonable doubt with a preponderance of the evidence. He maintains that the instruction properly stated the burden of proof in a criminal case, and it was not repetitive with any of the other instructions. McGee further argues that by refusing his instruction, the court failed to properly instruct the jury on the sufficient level of proof required by the State to convict him, because his instruction distinguished the level of reasonable doubt from a preponderance of the evidence or suspicion.

¶ 32. “In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Johnson v. State, 823 So.2d 582, 584(¶ 4) (Miss.Ct.App.2002) (quoting Hickombottom v. State, 409 So.2d 1337, 1339 (Miss.1982)). Defendants do not have an absolute right to have their jury instructions granted. “A defendant is entitled to have jury instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is fairly covered elsewhere in the instructions, or is without foundation in the evidence.” Humphrey v. State, 759 So.2d 368, 380(¶ 33) (Miss.2000) (quoting Heidel v. State, 587 So.2d 835, 842 (Miss.1991)).

¶ 33. The trial court denied proposed instruction D-4 as repetitive, finding it was already covered in the court’s instructions. The court also found the instruction to be too confusing and not instructive to the jury. McGee’s proposed jury instruction D-4 stated as follows:

The court instructs the jury that under the law you do not have the right to convict Baron McGee upon mere suspicion, regardless of how strong that suspicion might be. You may not convict Baron McGee just because there may be a preponderance of the evidence against him or just because there may be a reason to suspect that he is guilty. Suspicion, no matter how strong or- convincing, never rises to the dignity of proof beyond a reasonable doubt. Before you find Baron McGee guilty, you must be convinced solely upon the evidence presented during this trial that Baron McGee is guilty beyond a reasonable doubt.

Court Instruction No. 2 instructed the jury that its verdict must be based on more than mere suspicion: “You are to apply the law to the facts and this way decide the case. You should not be influenced by bias, sympathy, or prejudice. Your verdict should be based on the evidence and not upon speculation, guesswork, or conjecture.” Court Instruction No. 3 adequately instructed the jury regarding the necessary aspects of reasonable doubt and the presumption of innocence:

The law presumes every person charged with the commission of a crime to be innocent. This presumption places upon the State the burden of proving the defendant guilty of every material element of the crime with which he is charged. Before you can return a verdict of guilty, the State must prove to your satisfaction beyond a reasonable doubt that the defendant is guilty. The presumption of innocence attends the defendant throughout the trial and prevails at its close unless overcome by evidence which satisfies the jury of his guilt beyond a reasonable doubt. The defendant is not required to prove his innocence.

These three instructions sufficiently addressed the jury’s duty to convict McGee only if it found that the State had proved beyond a reasonable doubt that he committed the charged offenses. Therefore, McGee’s proposed instruction was repetitive and unnecessary.

¶ 34. Moreover, the record reflects that jury instructions C-l, C-2, C-3, C-4, C-5, and C-6 were granted along with S-l, S-2, S-3, D-2, and D-5. These instructions covered the elements of murder and aggravated assault, as well as an explanation of McGee’s alibi defense. More specifically, instruction D-5 stated: “A verdict of not guilty means that you are not satisfied that the prosecution has proven Baron McGee guilty beyond a reasonable doubt. To return a verdict of not guilty, it is only necessary that you have a reasonable doubt as to the guilt of Baron McGee.” We find that the instructions given fairly announced the law of the case and created no injustice. Accordingly, we find no reversible error.

(8) Ineffective Assistance of Counsel

¶ 35. McGee contends that his trial counsel failed to provide effective assistance of counsel. To support his contention, McGee cites the following alleged errors of counsel: (1) improper investigation of the case by not questioning witnesses about a cloth worn by the shooter, (2) not questioning witnesses about seeing the shooter leave on a bicycle, (3) not securing the identities of known alibi witnesses so that they could be found for trial, (4) not preparing sufficient exhibits to reveal the crime scene, (5) failure to request a speedy trial or move to dismiss for lack of a speedy trial when advising his client that he had in fact done so, (6) failure to advise and get consent to pursue continuances, (7) failure to move to suppress the defendant’s statement which was damaging at trial, (8) failure to advise that a jury trial could be waived, (9) failure to keep the defendant reasonably informed, (10) not requesting a lesser included manslaughter instruction, and (11) failure to preserve error of surprise witness by declining the offered continuance.

¶ 36. The law on establishing a claim of ineffective assistance of counsel is well-settled. In order to prevail on an ineffective assistance of counsel claim, a defendant must prove that: (1) trial counsel’s performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Id. at 691-92. “A reasonable probability is defined as a probability sufficient to undermine confidence in the outcome of the case.” Id. at 694.

¶ 37. “We note at the outset that a claim of ineffective assistance of counsel is best brought at the post-conviction relief stage because the record on direct appeal is generally insufficient to evaluate the claim.” Lyle v. State, 908 So.2d 189, 196(¶ 35) (Miss.Ct.App.2005) (quoting Read v. State, 430 So.2d 832, 837 (Miss.1983)). Review of an ineffective assistance of counsel claim, when brought on direct appeal, is confined strictly to the record. Colenburg v. State, 735 So.2d 1099, 1102(¶ 6) (Miss.Ct.App.1999). “When an ineffective assistance of counsel claim is made on direct appeal, the proper resolution is to deny relief without prejudice to the defendant’s right to assert ineffective assistance of counsel in a post-conviction relief proceeding.” Lyle, 908 So.2d at 196(¶ 35) (quoting Read, 430 So.2d at 837). However, we may address the merits of the claim on direct appeal when (1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge. Colenburg, 735 So.2d at 1101(¶ 5).

¶ 38. In this case, we are constrained to follow the general rules regarding claims of ineffective assistance of counsel raised on direct appeal. We do not find the record in this case to affirmatively show ineffectiveness of constitutional dimensions, nor do we find any stipulation by the parties regarding the adequacy of the record. Accordingly, we deny relief without prejudice to McGee to raise this issue again via a motion for post-conviction relief, should he so choose.

¶ 39. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF COUNT I MURDER AND SENTENCE OF LIFE; COUNT II AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS TO RUN CONCURRENTLY TO SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . Sessions was shot twice in the chest and Paige once in the throat area. In her initial statement to police, Burton stated that Sessions was shot four times in the back, and Paige was shot in the chest. At trial, she said that she had never seen McGee before, but in her statement to the police, she said that she had often seen the shooter because "he is always over there.”

      . Jackson is a mechanic who was renting a room in his house to McGee.

      . During closing argument, the prosecutor told the jury:
      And that's where you guys come in. It's your job to stop him from running. It's your job to let him know that the citizens of Hinds County are not going to tolerate murders, not going to tolerate senseless violence. It's your job to tell him what he did was wrong and it’s not going to be tolerated.


source: Caselaw Access Project

author: CHANDLER, J., for the Court.

license: Public Domain

text:
    Rufus Darwn McFADDEN, II, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01306-COA.
    Court of Appeals of Mississippi.
    Feb. 7, 2006.
    Rehearing Denied May 23, 2006.

      William Mitchell Moran, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.

      Before LEE, P.J., IRVING and CHANDLER, JJ.
   CHANDLER, J., for the Court.

¶ 1. Rufus Darwn McFadden, II, was convicted of murder. McFadden appeals, raising the following issues:

I. WHETHER THE COURT ERRED IN REFUSING TO FURNISH AN EXPERT WITNESS FOR THE DEFENDANT
II. WHETHER THE COURT ERRED IN REFUSING TO PROVIDE FUNDS FOR AN EXPERT
III. WHETHER THE COURT ERRED IN OVERRULING A MOTION FOR A CONTINUANCE
¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On Saturday, January 17, 2004, Monica Collum went to work and left her four children, including her two-year-old daughter, Ariana Farley, with her live-in boyfriend, Rufus Darwn McFadden, II. While Collum was at work, McFadden called her and told her that Ariana had fallen off a bicycle and bumped her head, but that she was fíne. When Collum came home, she found Ariana unresponsive with glassy eyes and a swollen head. Collum rushed Ariana to Leake Memorial Hospital, where the doctor told Collum that Ariana would have to go to the University of Mississippi Medical Center (“UMC”) in Jackson. McFadden and Collum followed Ariana to Jackson.

¶ 4. While McFadden and Collum were in the waiting room at UMC, Deputy Sheriff Mike Freeny of the Leake County Sheriffs Department and Debra Duplessis, a social worker, arrived from the sheriffs office. McFadden told Officer Freeny and Duplessis that Ariana had fallen off a bicycle and that her neck landed on the pedal. Collum noted that this story was inconsistent with what McFadden had told her when he called her, since McFadden had told Collum that Ariana landed on her back.

¶ 5. Collum was told that Ariana was dead when she arrived at UMC. She was officially pronounced dead the following Monday.

¶ 6. On January 20, 2004, McFadden was detained at the Leake County Correctional Facility. He was read his Miranda rights and waived his right to remain silent. After he waived his rights, he stated that he was in his bedroom when he heard a loud noise. He did not react to the noise immediately, but when he checked on the children ten minutes later he saw Ariana lying on the floor. McFadden told Ariana to go back to the living room with her brothers, and when she walked she started staggering. McFadden picked her up and asked her if she was okay. He placed Ariana on the bed, where she remained until Collum came home.

¶ 7. On January 26, 2004, McFadden was in Jackson for the purpose of taking a polygraph test. After he took the polygraph test, he asked to make a second statement to the police. He was again read his Miranda rights and made his statement. In the second statement, he stated that Dinisio Skinner, Collum’s oldest son, told McFadden that Ariana had written on Dinisio’s poster. McFadden confronted Ariana about the situation, and she denied it. McFadden picked up Aria-na and shook her. While he was shaking Ariana, she was kicking and struggling; she flew out of his hands and struck her head on the television. McFadden gave this testimony at trial.

¶ 8. McFadden was tried and convicted of murder.

ANALYSIS

I. WHETHER THE COURT ERRED IN REFUSING TO FURNISH AN EXPERT WITNESS FOR THE DEFENDANT.

II. WHETHER THE COURT ERRED IN REFUSING TO PROVIDE FUNDS FOR AN EXPERT.

¶ 9. McFadden admitted that he was responsible for Ariana’s death, but he claimed that the death was an accident. Dr. Hayne, the forensic pathologist who testified for the State, testified that Ariana died of cerebral trauma, fractures to the skull, severe swelling, and brain stem herniation. He concluded that these injuries were caused by blunt force trauma. Dr. Hayne opined that the two fractures to the skull Ariana sustained would have required Ariana to have fallen at least fifteen feet. McFadden claims that there was a question as to the exact cause of death and that Dr. Hayne’s medical report contained inconsistencies. Specifically, McFadden claimed that Ariana’s hemorrhaged retinas were inconsistent with a cause of death through blunt force trauma but consistent with a death caused by suffocation or shaken baby syndrome.

¶ 10. McFadden intended to call as an expert Dr. John Lancon, an associate professor of neurosurgery at UMC. McFadden requested that Dr. Lancon be paid at the county’s expense, claiming that he did not have the funds to hire Dr. Lancon himself. The circuit court held that McFadden had demonstrated his ability to obtain the funds to hire an expert witness because he had the funds to hire privately retained counsel. The court also held that McFadden had failed to demonstrate that the expert witness was necessary for his defense.

¶ 11. An indigent’s right to an expert witness paid at the public’s expense is “conditioned upon a showing that such expenses are needed to prepare and present an adequate defense.” Ruffin v. State, 447 So.2d 113, 118 (Miss.1984). For this Court to overturn a trial court’s denial of a request for expert assistance at public expense, we must find an abuse of discretion “so egregious as to deny due process rendering a trial fundamentally unfair.” Fisher v. City of Eupora, 587 So.2d 878, 883 (Miss.1991).

¶ 12. There is no single test for determining whether the services of an investigator or an expert are necessary. Weatherspoon v. State, 732 So.2d 158, 160(¶ 7) (Miss.1999). However, this Court addresses the need for State funding on a case-by-case basis to determine whether a defendant was prejudiced by the denial of expert assistance to the extent that he or she was denied a fair trial. Townsend v. State, 847 So.2d 825, 829(¶ 13) (Miss.2003). Some factors to be considered include whether and to what degree the defendant had access to the State’s experts, whether the defendant had the opportunity to cross-examine those experts, and lack of prejudice or incompetence of the State’s experts. Id. This Court also considers to what extent the State’s case depends on the State’s expert and the risk of error in resolving the issue for which the expert is requested. Id.

¶ 13. In the present case, McFadden’s counsel cross-examined Dr. Hayne, although he did not ask Dr. Hayne whether Ariana’s injuries would be consistent with a death by suffocation or shaken baby syndrome. McFadden does not question Dr. Hayne’s qualifications or competency. McFadden’s attorney stipulated that Dr. Hayne was qualified to testify as a forensic pathologist. Dr. Hayne made himself available to McFadden’s attorney, and McFadden’s attorney spoke with Dr. Hayne. Finally, the State’s ease against McFadden was not highly dependent on Dr. Hayne’s conclusion that McFadden intended to kill Ariana. The State indicted McFadden for depraved heart murder, which requires that McFadden engaged in an act eminently dangerous to others but does not require a premeditated design to effect the death. Miss.Code Ann. § 97-3-19(l)(b) (Rev.2000). McFadden admitted that he shook a two-year-old girl so hard that she flew from his hands and hit the television. He also admitted that- he was the only person who could have effected Ariana’s death. Therefore, even if McFadden had produced an expert to testify that the cause of death was shaken baby syndrome or suffocation, McFadden would remain guilty of depraved heart murder.

¶ 14. The exact cause of Ariana’s death was not an essential component of McFadden’s defense. Therefore, there was no abuse of discretion in the trial court’s denial of funds for an expert.

III. WHETHER THE COURT ERRED IN OVERRULING A MOTION FOR A CONTINUANCE

¶ 15. McFadden’s indictment was filed on April 5, 2004. McFadden’s counsel requested discovery on April 20, 2004. On May 6, 2004, McFadden’s attorney requested a continuance, which the circuit court denied. The case was tried on May 10 and 11, 2004. McFadden’s attorney claims that he was not given adequate time to review the discovery materials, prepare for trial, and consult with an independent medical expert.

¶ 16. The decision to grant or deny a continuance is left to the sound discretion of the trial court. Lambert v. State, 654 So.2d 17, 22 (Miss.1995). This Court does not reverse a denial of a continuance unless there is a showing of manifest injustice. Atterberry v. State, 667 So.2d 622, 631 (Miss.1995). In the present case, the judge denied the continuance because McFadden’s attorney was hired in January and attended McFadden’s habeas corpus hearing in March. McFadden’s attorney stated that he had worked on the case every day since he received the State’s discovery materials. On the day of the trial, the circuit court asked McFadden’s attorney whether he was ready for trial, and the attorney announced that he was ready. The court did not abuse its discretion in denying a continuance.

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

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


text:
    Gloria H. BUSBY, Individually and on Behalf of All of the Wrongful Death Beneficiaries of Kenneth L. Busby, Appellant v. John T. MAZZEO, M.D., and John D. Fagan, M.D., Appellees.
    No. 2004-CA-00896-COA.
    Court of Appeals of Mississippi.
    May 16, 2006.

      Edwin Woods, attorney for appellant.
    Jan F. Gadow, Stuart Bragg Harmon, Jackson, attorneys for appellees.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   CHANDLER, J., for the Court.

¶ 1. On December 31, 2002, Gloria Busby filed a wrongful death action, individually and on behalf of the wrongful death beneficiaries of Kenneth Busby against Dr. Robert Giffin, Dr. John Mazzeo and Dr. John Fagan in the Circuit Court of Warren County. The complaint alleged the physicians were negligent in medically caring for the decedent, Kenneth L. Busby, which resulted in the decedent’s death. Dr. Maz-zeo and Dr. Fagan filed a motion for summary judgment on February 10, 2004. On April 2, 2004, the trial court granted the motion for summary judgment and an order of final judgment pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure. Busby appeals and makes the issue:

WHETHER THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Kenneth Busby was a sixty-seven year old man with a history of kidney failure, peripheral arterial disease and heart disease. On February 23, 2001, Busby was admitted to River Region Health System in Vicksburg for right hip and leg pain, as well as a bladder infection. Dr. Fagan diagnosed Kenneth with a staph infection and bladder spasms and treated him accordingly. On February 28, 2001, Kenneth’s condition deteriorated and he was transferred to Parkview Medical Center where he was treated by Dr. Mazzeo. On March 3, 2001, Kenneth’s fever spiked and his white blood cell count went from 6,000 to 30,000. Dr. Mazzeo noted that the source of these problems was unknown. On March 4, 2001, Mazzeo performed an exploratory laparotomy on Kenneth. Kenneth remained in the hospital after surgery and he died on March 11, 2001. ■

¶ 4. On December 31, 2002, Gloria Busby filed a complaint alleging a wrongful death action in the Circuit Court of Warren County. The complaint alleges that Dr. Mazzeo and Dr. Fagan committed medical negligence and their negligence was the proximate cause of Kenneth’s death. The complaint specifically states:

Plaintiffs aver that the Defendants were negligent in rendering medical care and treatment to the decedent on and after February 23, 2001 while the decedent was a patient at Parkview Regional Medical Center. Plaintiffs aver that Kenneth L. Busby died as a direct and proximate result of substandard medical care received of and from the Defendants. Plaintiffs plead respondeat superior.

The vague allegations recited in the complaint fail to identify the specific acts of the defendants of which Busby is complaining. Neither does the complaint provide any insight into the proper standard of care and how the defendants deviated from that standard.

¶ 5. Drs. Mazzeo and Fagan propounded discovery upon Busby but Busby failed to respond to the discovery requests. On February 10, 2004, Dr. Mazzeo and Dr. Fagan filed a motion for summary judgment citing the absence of any expert proof by Busby to support her malpractice claim. Busby responded to the motion for summary judgment by stating: “[t]he Plaintiff alleges that the Decedent received substandard care from the Defendants in this cause in the particulars identified by Dr. Malik’s report as well as the particulars that may be identified during further investigation and prosecution of this case.” The particulars identified by Busby in the response to the motion for summary judgment included: two Operative Reports from Dr. Mazzeo, a Nephrology Consultation from Dr. Fagan, a History and Physical Report from Dr. Giffin, Consultation from Dr. Mazzeo, 48 Hour Plan of Care from Region Health System and the Certificate of Death. None of these reports or forms stated the standard of care nor did they state that Dr. Mazzeo and Dr. Fagan violated the standard of care in the treatment of the decedent.

¶ 6. On March 26, 2004, the trial court held a hearing on the motion for summary judgment. Minutes prior to the hearing, Busby filed a letter from Dr. Atif Malik containing general criticism of the care provided to Busby. The letter stated, “[i]t is my opinion that the care Mr. Busby received by medical professionals at River Region Health Systems falls below the standard of care required for the treatment of patients with the same or similar medical conditions as Mr. Busby and that substandard care contributed to Mr. Busby’s death.” This letter did not constitute sworn proof from an expert nor did the letter state the appropriate standard of care. The letter did not state the names of any individuals, but simply referred to them as “medical providers.” The letter mentioned River Region Health Systems but did not to refer to Parkview Medical Center.

¶ 7. At the hearing, Dr. Mazzeo and Dr. Fagan argued that Busby failed to produce any sworn expert testimony and that Busby failed to respond to any discovery. Busby admitted that she had failed to respond to the discovery propounded by the defendants. On April 2, 2004, the trial court granted summary judgment in favor of Dr. Mazzeo and Dr. Fagan. The court held that there was no sworn testimony in opposition to the motion for summary judgment. The court held that Dr. Malik’s letter was filed late, but even if the letter was accepted by the court, it was insufficient to prevent summary judgment because the letter did not set forth the standard of care, neither did it allege that the physicians negligently violated the applicable standard of care causing the decedent’s death.

STANDARD OF REVIEW

¶ 8. Rule 56(c) of the Mississippi Rules of Civil Procedure states that a summary judgment should be granted “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.” To prevent summary judgment, Busby must establish a genuine issue of material fact by means allowable under the Rule. Lyle v. Mladinich, 584 So.2d 397, 398 (Miss.1991). When reviewing a lower court’s decision to grant summary judgment, this Court employs a de novo standard of review. Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 63 (Miss.1988). This Court will view evidentiary matters in the light most favorable to the nonmoving party. Palmer v. Biloxi Regional Medical Center, Inc., 564 So.2d 1346,. 1354 (Miss.1990). The lower court’s decision will be reversed if there are any triable issues of fact. Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983).

WHETHER THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT

¶ 9. The trial court granted the motion for summary judgment because there was no sworn expert testimony to support the claim that the defendants rendered substandard medical care which caused the death of the decedent. Busby claims that the letter from Dr. Malik and the medical records of Busby are sufficient to establish a prima facie case. Busby asserts that it is not required that she produce sworn expert testimony to survive a motion for summary judgment.

¶ 10. The law is clear that Busby must support her claims “by facts sworn to on personal knowledge in depositions, answers to interrogatories or affidavits, or through such other appropriate forms as stipulations of fact or admissions procured under Rule 36 [of the Mississippi Rules of Civil Procedure].” Walker v. Skiwski 529 So.2d 184, 186 (Miss.1988). In order to establish a prima facie case in a medical malpractice action, Busby must establish that the defendants were negligent through medical testimony that shows they failed to use ordinary skill and care. Travis v. Stewart, 680 So.2d 214, 218 (Miss.1996). Busby has the burden of establishing the details of the standard of care to which a physician is held. Boyd v. Lynch, 493 So.2d 1315, 1318 (Miss.1986).

¶ 11. Busby contends that the medical records are sufficient to create a triable issue of fact. However, the medical records, nor any other competent evidence before the court, establishes the proper standard of care and shows any acts by Dr. Mazzeo and Dr. Fagan which violated the proper standard of care. To the contrary, the medical records indicate that Dr. Mazzeo and Dr. Fagan were treating Busby with due care.

¶ 12. Busby contends that the letter from Dr. Malik was sufficient to establish a prima facie case. However, the letter from Dr. Malik was not sworn testimony nor was it timely filed with the trial court as required by Rule 56(c).

¶ 13. In a medical malpractice action, in order to establish a prima facie case; the plaintiff is required to submit expert testimony to establish failure by the defendants to use ordinary skill and care which causes damage to the plaintiff. Travis, 680 So.2d at 218. Busby failed to meet her burden, leaving no triable issues of fact. This Court must affirm the decision of the trial court.

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

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


author: GRIFFIS, J., for the Court.

text:
    Mark S. KING, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-00892-COA.
    Court of Appeals of Mississippi.
    May 16, 2006.
    Mark S. King, Appellant, pro se.
    Office of the Attorney General by W. Daniel Hinehcliff, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Mark S. King pled guilty, in the Circuit Court of Sunflower County, to uttering a forgery. On June 5, 2000, he was sentenced to serve two years in the custody of the Mississippi Department of Corrections and one year of post-release supervision. This time was to run consecutively to time he was serving on prior, unrelated convictions. He was further ordered to pay restitution of $488.08 and court costs of $248.

¶ 2. In March 2005, he filed a petition for post-conviction relief, which the circuit court dismissed as untimely. On appeal, King argues his sentence is illegal. We find no error and affirm.

STANDARD OF REVIEW

¶ 3. A trial court’s denial of post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶3) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

¶ 4. King argues that he received an illegal sentence, because as a prior convicted felon, he is not eligible for a suspended sentence. The State responds that King’s motion is both barred by the statute of limitations and is without merit since he did not receive a suspended sentence.

¶ 5. A person who pleads guilty to a crime has three years from the date of entry of the judgment of conviction in which to file a motion for post-conviction relief. Miss.Code Ann. § 99-39-5(2) (Supp.2005). This statute of limitations does not apply to “errors affecting fundamental constitutional rights, such as the right to a legal sentence.... ” Ivy v. State, 731 So.2d 601, 603(¶ 13) (Miss.1999). Nevertheless, “the mere assertion of a constitutional violation is not sufficient to overcome the time bar. There must at least appear to be some basis for the truth of the claim before the limitation period will be waived.” Stovall v. State, 873 So.2d 1056,1058(¶ 7) (Miss.Ct.App.2004).

¶ 6. The sentencing order was entered June 5, 2000. By statute, King had until June 5, 2003 to file his motion for post-conviction relief. He did not file it until March 2005. Unless there appears some basis to his claim that his sentence was illegal, we must consider his petition time-barred.

¶ 7. King points out that, as a prior convicted felon, he was not eligible for a suspended sentence. Mississippi Code Annotated section 47-7-33(1) (Rev.2004) provides in part:

When it appears to the satisfaction of ... the judge ... that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby, such court ... shall have the power, after ... a plea of guilty, except in a case where ... the defendant has been convicted of a felony on a previous occasion in any court or courts ... of any state ... to suspend the imposition or execution of [a] sentence, and place the defendant on probation....

In other words, it would have been illegal for the circuit court to have suspended a portion of King’s sentence, since he was a thrice convicted felon at the time.

¶ 8. King, however, did not receive a suspended sentence. The judge ordered him to serve two years in jail, followed by one year on post-release supervision. Post-release supervision is a perfectly permissible sentence for a prior convicted felon, as long as the post-release supervision does not extend the total sentence above the maximum allowed for that crime. Miss.Code Ann. § 47-7-34(1) (Rev.2004). Uttering a forgery is a felony, punishable up to fifteen years. Miss.Code Ann. § 97-21-33 (2000) ; and Miss.Code Ann. § 97-21-59 (Rev.2000). Two years incarceration plus one year supervision does not exceed fifteen years.

¶ 9. Judge Hines rendered a permissible, legal sentence. Since there did not even appear any basis for King’s claim of illegal sentence, Judge Hines was correct to consider the motion time-barred. We affirm.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY DISMISSING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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

      . We note that the punishment for forgery changed to not more than ten years imprisonment by statute, effective July 1, 2003. Miss. Code Ann. § 97-21-33 (Supp.2005).


text:
    Charles David HILL, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02326-COA.
    Court of Appeals of Mississippi.
    May 16, 2006.
    William E. Goodwin, attorney for appellant.
    Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.
    BEFORE LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Charles David Hill was convicted on two counts of sexual battery and one count of burglary of a dwelling. Hill was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections, with twenty years to serve and five years post-release supervision, on each count, with the sentences to run concurrently. On appeal, Hill argues that the trial court erred in failing to merge counts one and two of the indictment charging sexual battery. We find no error and affirm.

¶ 2. In the early morning hours of July 12, 2003, Charles David Hill broke into the home of his sister, Charene Badon. Char-ene’s step-daughter, S.W., and a friend, C.M., were sleeping in the home. Hill entered S.W.’s bedroom and held a knife on the girls. Hill attempted to sexually assault S.W., but was dissuaded. Hill then sexually assaulted C.M., in the presence of S.W.

¶ 3. S.W. testified that Hill held a knife to C.M. and told her to take her clothes off. Hill then removed his clothes and performed oral sex on C.M. S.W. also testified that Hill made C.M. get on her knees and bend over. He then put his penis inside her. Hill then took money from Charene Badon’s purse and left the house.

¶ 4. Hill raises only one issue on appeal, whether his conviction of two counts of sexual battery are multiplicitous and should have been combined. This Court has consistently held that separate counts of sexual battery may be charged and supported by facts arising from one transaction. Winters v. State, 814 So.2d 184, 189 (Miss.Ct.App.2002); Alexander v. State, 811 So.2d 272, 281 (Miss.Ct.App.2001).

¶ 5. Count one of the indictment charged Hill with the wilful, unlawful and felonious sexual penetration of C.M. against the will and without the consent of C.M., a child at least fourteen years, but under the age of sixteen years, by then and there wilfully, unlawfully and feloniously inserting his tongue into the vagina of C.M., contrary to and in violation of Section 97-3-95 of the Mississippi Code Annotated (Rev.2000).

¶ 6. Count two of the indictment charged Hill with the wilful, unlawful, and felonious sexual penetration of C.M. against the will and without the consent of C.M., a child at least fourteen years, but under the age of sixteen years, by then and there wilfully, unlawfully and feloniously inserting his penis into the vagina of C.M., contrary to and in violation of Section 97-3-95 of the Mississippi Code Annotated (Rev.2000).

¶ 7. This case is analogous to Alexander v. State, 811 So.2d 272, 280(¶ 23) (Miss.Ct.App.2001), where this Court held:

even though all of these events took place on the same night and at virtually the same time, it does not necessarily lead to the conclusion that all of these crimes should be wrapped neatly into one little package. We find that the two separate counts of sexual battery are proper as Alexander violated S.A. by penetrating two separate orifices of her body, namely, her vagina and her anus, with his tongue. Furthermore, he attempted to penetrate her anus with his penis unsuccessfully, giving rise to the attempted sexual battery charge.... Alexander attempted to penetrate S.A.’s vagina with his penis unsuccessfully. All of these crimes are very separate and very distinct in alignment with the law. The fact that he committed them all in one night in a small time frame, does not constitute a triggering of the same transaction rule.

¶ 8. Here, Hill committed two separate acts of sexual battery. The first count charges that Hill inserted his tongue into C.M.’s vagina. This was an act of penetration as defined in Mississippi Code Annotated Section 97-3-97(a) (Rev.2000). In count two, Hill was charged with the insertion of his penis into C.M.’s vagina. This was a separate act of penetration. Hill violated C.M.’s body and this requires proof of a separate fact. Alexander, 811 So.2d at 281(¶ 25).

¶ 9. We find no error and affirm.

¶10. THE JUDGMENT OF THE WALTHALL COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, SEXUAL BATTERY AND SENTENCE OF TWENTY-FIVE YEARS WITH FIVE YEARS TO BE SERVED ON POST-RELEASE SUPERVISION; COUNT II, SEXUAL BATTERY AND SENTENCE OF TWENTY-FIVE YEARS WITH FIVE YEARS TO BE SERVED ON POST-RELEASE SUPERVISION TO RUN CONCURRENTLY WITH SENTENCE IN COUNT I; COUNT III, BURGLARY OF A DWELLING AND SENTENCE OF TWENTY-FIVE YEARS WITH FIVE YEARS TO BE SERVED ON POST-RELEASE SUPERVISION TO RUN CONCURRENTLY WITH SENTENCES IN COUNT I AND II, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WALT-HALL COUNTY.

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

      . In this appeal, Hill does not raise any issue related to the burglary conviction.


text:
    Willie BRADLEY, Appellant v. Spencer McALLISTER and the City of Natchez, Mississippi, Appellees.
    No. 2004-CA-01657-COA.
    Court of Appeals of Mississippi.
    May 16, 2006.

      Greta R. Johnson, attorney for appellant.
    L. Clark Hicks, Jr., Hattiesburg, attorney for appellees.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Willie Bradley was arrested by Natchez Police Officer Spencer McAllister for driving under the influence (“DUI”). After Bradley was acquitted, he sued McAllister and the City of Natchez for personal injuries sustained during the arrest. The circuit court granted summary judgment. Bradley appeals and argues that summary judgment was improper, because there were genuine issues of material fact as to (1) whether McAllister acted with reckless disregard, and (2) whether Bradley sustained damages. We find no error and affirm.

FACTS

¶ 2. McAllister was on patrol when he spotted Bradley’s car. McAllister suspected Bradley of drunk driving, so McAllister followed Bradley for a few minutes, turning on the video camera in his patrol car. McAllister stopped Bradley and asked him if he had been drinking. Bradley responded that he had two beers. McAllister conducted a field sobriety test. Afterwards, he informed Bradley he appeared to be too impaired to drive, so he was being taken to the police station for the option to take a Breathalyzer. McAllister handcuffed Bradley and placed him in the back of the patrol car.

¶ 3. McAllister and Bradley waited for approximately thirty minutes in the patrol car until Bradley’s passenger could get a cab to take her home and a tow truck could take Bradley’s car. The entire arrest lasted about an hour.

¶ 4. After a few minutes in the patrol car, Bradley told McAllister that the handcuffs felt too tight. McAllister said he double-locked them so they should not feel tight, but, he added, they have a tendency to twist while riding in a vehicle. Bradley responded, “Okay.” For the next thirty minutes, Bradley engaged McAllister in conversation on various topics. These conversations continued when they eventually drove to the police station.

¶ 5. Bradley later was acquitted. His lawsuit for personal injuries claimed that his wrists were injured during the arrest, and he claimed damages for medical bills and lost wages.

STANDARD OF REVIEW

¶ 6. This Court employs a de novo standard of review of a lower court’s grant or denial of summary judgment and examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. McMillan v. Rodriguez, 823 So.2d 1173, 1176-77(¶9) (Miss.2002) (citations omitted). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Id. at 1177(¶ 9). If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his or her favor. Id. Issues of fact sufficient to require reversal of a summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. Id.

ANALYSIS

I. Was there a genuine issue of material fact as to whether McAllister acted with reckless disregard?

¶ 7. Bradley argues that there was an issue of fact as to whether McAllister acted with reckless disregard for Bradley’s well-being. In particular, he points to McAllister’s admission that he did not adjust the handcuffs after Bradley complained they were too tight. He also alleges that McAllister acted in reckless disregard in arresting him in the first place, since he had no valid reason to arrest him. The defendants respond that the evidence is undisputed that McAllister acted in a professional, reasonable manner at all times.

¶ 8. The Mississippi Tort Claims Act provides in part:

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

Miss.Code Ann. § 11 — 46—9(l)(c) (Rev. 2002). Reckless disregard is “a higher standard than gross negligence and ‘embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act.’ ” Collins v. Tallahatchie County, 876 So.2d 284, 287(¶ 8) (Miss.2004) (quoting Turner v. City of Ruleville, 735 So.2d 226, 230(¶ 19) (Miss.1999)). The focus is not on whether the officer intended to harm the plaintiff, but “whether the officer intended to do the act that caused harm to come to the plaintiff.” Turner v. City of Ruleville, 735 So.2d 226, 230(¶ 20) (Miss.1999). “In finding reckless disregard, the court must look at the totality of the circumstances” of the officer’s conduct. Thomas ex rel. Thomas v. Miss. Dep’t of Pub. Safety, 882 So.2d 789, 796(¶ 20) (Miss.Ct.App.2004).

¶ 9. The defendants argue that Bradley did not rely on any evidence in his response to motion for summary judgment. This is not correct. Both parties relied on McAllister’s affidavit and the patrol car video of the arrest. The evidence shows that merely a few minutes after being-handcuffed and placed in the back of the patrol car, Bradley complained that the cuffs were too tight. McAllister stated that he had double-locked them to prevent this but that riding with cuffs in a vehicle caused the cuffs to twist. The evidence tends to show that while McAllister did not intend to put the cuffs on tightly, he was aware that they would twist and tighten once Bradley was in the vehicle and that they were in fact twisting and tightening. McAllister did not attempt to check the cuffs during the next hour that Bradley was in the vehicle.

¶ 10. Although Bradley is only heard to complain once about the cuffs being too tight, there were two occasions when McAllister left the patrol car when Bradley can be heard to be panting and breathing heavily. There are two minutes on the tape where the sound is cut off, but Bradley does not allege that he made additional complaints during this time. Other than this complaint, Bradley is heard to engage the officer in conversation on various topics. This conversation lasted until they reached the police station.

¶ 11. In City of Jackson v. Powell, 917 So.2d 59 (Miss.2005), the supreme court had occasion to examine a complaint of personal injuries sustained during arrest and whether the arrest posed a reckless disregard for the arrestee’s safety. Powell was pulled over and arrested for traffic violations and possession of marijuana. Id. at 62-63 (¶¶ 4-5). He tried to escape from the patrol car. Id. at 63(¶ 5). The two officers subdued and handcuffed him, but nevertheless continued to beat and kick him. Id. at 70(¶ 41). The court held that after he was subdued and handcuffed, he was not engaged in criminal activity. Id. (¶¶ 40-41). Therefore, the question was whether the beating constituted reckless disregard. Id. at 71(¶ 44). The court went on to hold that not only was the conduct reckless disregard, but it rose to the higher level of malice. Id. at (¶ 46). Powell does not help our inquiry here, because there is no contention by Bradley that McAllister’s conduct was such to rise to the level of malice.

¶ 12. The supreme court has however analyzed cases in which officers were held to have acted in reckless disregard of the safety of others in other contexts. The common thread of these cases is “that the conduct involved evinced not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved.” City of Jackson v. Lipsey, 834 So.2d 687, 693(¶21) (Miss.2003) (quoting Maldonado v. Kelly, 768 So.2d 906, 910-11(¶ 11) (Miss.2000)).

¶ 13. Viewing the evidence in the light most favorable to Bradley, we find no evidence that McAllister acted with reckless disregard. While there is evidence that McAllister was aware of the risk that the cuffs would tighten and twist once inside the car, and that he disregarded Bradley’s complaint, the evidence does not show that there was an unreasonable risk of injury or a high probability of harm. The only risk of injury shown by the evidence is that of discomfort. Bradley produced no evidence to show that discomfort was an unreasonable risk, nor did he put forth evidence of any probability of a greater harm. He alleged in his complaint that he incurred medical expenses and lost wages, but no such evidence was produced. Hence, we affirm the grant of summary judgment on the basis of immunity.

II. Was there a genuine issue of material fact as to whether Bradley suffered damages?

¶ 14. Because we find the defendants are immune from this suit, we need not consider this issue.

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

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


author: IRVING, J., for the Court.

text:
    Annie HODGES, Appellant v. MADISON COUNTY MEDICAL CENTER, Appellee.
    No. 2005-CA-00532-COA.
    Court of Appeals of Mississippi.
    May 16, 2006.
    James C. Patton, Kosciusko, attorney for appellant.
    James A. Becker, Robert H. Pedersen, Jackson, attorneys for appellee.
    Before KING, C.J., IRVING, CHANDLER and ISHEE, JJ.
   IRVING, J., for the Court.

¶ 1. Annie Hodges sued Madison County Medical Center (MCMC), alleging that she was injured by a “dangerous and hazardous condition” on the premises of MCMC. After discovery, the Madison County Circuit Court granted summary judgment to MCMC. Aggrieved, Hodges appeals and argues that the circuit court erred in finding that MCMC was immune from liability by virtue of Mississippi Code Annotated section 11 — 46—9(l)(v) (Rev.2002).

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On August 20, 2002, Hodges was visiting her niece at MCMC. When Hodges entered her niece’s room, the chair-bed in the room was fully extended into the bed position. Hodges sat on the end of the chair-bed, and it collapsed. Although Hodges’s body did riot hit the floor, she nevertheless went through the frame of the chair-bed, causing her to hit her back, shoulders, head, and elbow against the wall and causing her knees to fold up toward her chest. An examination of the chair-bed revealed that the mattress was supported by a shoestring instead of the metal spring that should have been in place to support the mattress.

¶ 4. Joe Jenkins, MCMC’s maintenance director, and Jasper Lott, his assistant, comprise the entire MCMC maintenance staff. Jenkins testified that he and Lott perform necessary maintenance on the entire hospital, excluding the air conditioning system and medical equipment. According to both Jenkins and Lott, MCMC employs a maintenance system in which a nurse or other hospital employee completes a work order for any broken or damaged equipment that is discovered in the hospital. The maintenance department then repairs or replaces the equipment. If no work order is completed for a piece of equipment, then no repairs or preventive maintenance is performed. Essentially, MCMC’s maintenance department’s sole responsibility is to repair or replace broken or damaged equipment only after the department has been notified. The maintenance department does inspect equipment for possible defects or damage. Since no complaints or work orders had ever been received by MCMC’s maintenance department in reference to the chair-beds, the chair-beds had never been inspected.

¶ 5. Jenkins admitted that no real annual inspections are done on the equipment that the hospital utilizes in its rooms. However,- he testified that, since he had been maintenance director, MCMC had not had any kind of report about anyone being injured while sitting on the end of a chair-bed that was fully extended. Jenkins also testified that, since he had been maintenance director, he had not heard of any problems associated with the chair-bed. Jenkins further testified that MCMC does not stock shoestrings in its maintenance department, nor does MCMC’s maintenance department use shoestrings to make repairs to chair-beds or any other equipment.

STANDARD OF REVIEW

¶ 6. “The Mississippi Legislature has determined that governmental entities and their employees shall be exempted from liability in certain situations as outlined in Mississippi Code Annotated section 11-46 — 9.” Mitchell v. City of Greenville, 846 So.2d 1028, 1029(¶ 8) (Miss.2003). “This exemption, like that of qualified or absolute immunity, is an entitlement not to stand trial rather than a mere defense to liability and, therefore, should be resolved at the earliest possible stage of litigation.” Id. (citations omitted). “Therefore, immunity is a question of law and is a proper matter for summary judgment under [Rule 56] of Mississippi Rules of Civil Procedure.” Id. When reviewing the grant of a motion for summary judgment, we examine the trial court’s decision de novo. Harrison v. Chandler-Sampson Ins., Inc., 891 So.2d 224, 228(¶ 11) (Miss.2005) (citations omitted). In conducting our review, we look at “all evidentiary matters in the record, including admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” Id. We view the evidence “in the light most favorable to the party against whom the motion has been made.” Id. “If any triable issues of fact exist, the trial court’s decision to grant summary judgment will be reversed; otherwise, the decision is affirmed.” Id.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. The sole issue of this appeal is whether the trial judge correctly granted summary judgment in favor of MCMC. In granting summary judgment, the trial judge held that MCMC was exempt from liability under the Mississippi Torts Claim Act, which states in pertinent part:

A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim ... [ajrising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care[.]

Miss.Code Ann. § ll-46-9(l)(v) (Rev. 2002).

¶ 8. Hodges contends that she was an invitee, and, as such, MCMC owed her a duty of reasonable care. She maintains that this duty of reasonable care extends to reasonable inspection of the premises to discover any obvious or latent defects, as well as making repairs reasonably necessary to ensure her safety and protection. Hodges argues that she is not required to prove that MCMC was aware of the dangerous and hidden condition of the chair-bed, but “must only produce enough evidence to suggest that the latent defect in the chair-bed was a hidden, dangerous condition, in the nature of a trap, and that in the exercise of reasonable care, MCMC ought to have ascertained its existence and anticipated that someone might be injured by it.” Hodges further argues that MCMC could have discovered or, at least, would have had constructive knowledge of the condition of the chair-bed had its maintenance employees conducted a reasonable inspection of the premises and the equipment utilized at the hospital. Therefore, Hodges maintains that MCMC should not have been granted immunity under section ll-46-9(l)(v).

¶ 9. MCMC argues that, under section ll-46-9(l)(v), it is liable for Hodges’s injuries only if she is able to show one of the following: (1) that an employee of MCMC caused the dangerous condition or (2) that MCMC had actual or constructive notice of the dangerous condition and had an opportunity to protect or warn Hodges. MCMC contends that there is no evidence that an employee of MCMC placed the shoestring on the chair-bed. MCMC also contends that there is no evidence that MCMC had actual or constructive notice that a shoestring was used to connect the mesh to the frame of the chair-bed, or that if MCMC had such notice, it acquired that notice early enough to protect or warn Hodges. MCMC further argues that section 11 — 46— 9(l)(v) does not allow the imposition of liability just because MCMC “failed to inspect its premises.” Therefore, MCMC maintains that it is immune from liability and that the lower court’s grant of summary judgment was proper.

¶ 10. Hodges may defeat MCMC’s immunity defense under the statute if she can prove: (1) a dangerous condition, (2) on MCMC’s property, (3) which MCMC caused by negligent or wrongful conduct, or of which it had actual or constructive notice and an adequate opportunity to protect or warn against, and (4) the condition was not open and obvious. Lowery v. Harrison County Bd. of Supervisors, 891 So.2d 264, 267(¶ 12) (Miss.Ct.App.2004); Miss.Code Ann. § 11 — 46—9(1) (v) (R ev. 2000).

¶ 11. There was absolutely no evidence that MCMC caused the dangerous condition of the chair-bed. Hodges does not allege, and the evidence does not support, that an employee of MCMC placed the shoestring on the chair-bed. It is true that MCMC failed to annually inspect the chair-beds it used in the hospital, but failure to inspect is not the same as causing a condition. There was also no evidence that MCMC had any actual notice about the dangerous condition of the chair-bed. The credible testimony was that MCMC’s maintenance department had not received any work orders from a single hospital employee in relation to the chair-beds, and that there were no reports of anyone being injured while sitting on the end of a fully extended chair-bed before Hodges’s accident. Furthermore, there was insufficient evidence to establish that MCMC had constructive notice of the dangerous condition of the chair-bed and adequate time to protect or warn Hodges against the danger. The testimony indicated that the condition was not open and obvious to MCMC. Even if we were to find that MCMC should have conducted reasonable inspections of its premises, there is still no certainty that the dangerous condition of the chair-bed would have been discovered before Hodges’s accident.

¶ 12. Although Hodges’s accident was unfortunate, we nevertheless find that MCMC was immune from liability pursuant to Mississippi Code Annotated section 11^6-9(l)(v) (Rev.2002). Therefore, we find that the trial court’s grant of summary judgment was proper.

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

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

      . Hodges's niece was a patient at the hospital.

      . The chair-bed has a metal frame and legs. When the chair-bed unfolds into a bed, the mattress lays on a mesh material. Four springs with hook ends and two cloth ties connect each end of the mesh to the chair-bed's metal frame. The four springs hook into each end of the mesh and into each end of the metal frame, and the two cloth ties are attached to each end of the mesh and are tied to each end of the metal frame.

      .At the time of the incident, Jenkins had been MCMC’s maintenance director less than six months, and Lott had worked for MCMC for about nine years.

      . Given the number of patients who regularly check in and out of the hospital, it is logical to conclude that a patient or family members of a patient could have placed the shoestring on the chair-bed at any point in time without any prior knowledge of MCMC and its employees.