author: DAN M. LEE, Justice, BROOM, Presiding Justice, DAN M. LEE, Justice,

text:
    Bobby CALDWELL v. STATE of Mississippi.
    No. 54285.
    Supreme Court of Mississippi.
    Nov. 16, 1983.
    Rehearing Denied Feb. 1, 1984.

      Cleve McDowell, Ellis Turnage, Morris & Turnage, Cleveland, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, Bobby Williams, Asst. Dist. Atty., Hernando, for appellee.
   DAN M. LEE, Justice,

for the Court:

PART I

THE GUILT PHASE

This is an appeal from the Circuit Court of DeSoto County wherein the appellant, Bobby Caldwell, was found guilty of the capital murder of Elizabeth Faulkner and sentenced to die in the gas chamber. Upon motion of the appellant, the venue of the trial was changed from Panola County to DeSoto County. The trial court set the date of execution as January 15, 1982. Caldwell brought this appeal and assigns as error the trial court’s actions in:

1. denying defendant’s motion to declare the warrantless arrest illegal in that evidence of another crime was admitted; no probable cause existed at the time of arrest; appellant was not informed of his arrest; the trial court’s ruling on the motion was against the weight of the evidence;
2. denying defendant’s motion to suppress the alleged statement, in that the ruling is against the weight of the evidence;
3. denying the defendant’s motion for a special investigator and ballistic expert at state expense, which violated defendant’s due process of law;
4. tbs state failed in proving venue in that Panola County, Mississippi, has two judicial districts.

Mr. Robert Faulkner and Mrs. Elizabeth Faulkner were husband and wife. Together they owned Mrs. Lee’s Bait Shop, a small grocery store and bait shop on Highway 315 near Sardis Reservoir in Panola County. On the morning of October 29, 1980, Mrs. Faulkner was in the store and her husband was in the back part of the building which served as the couple’s living quarters. Mr. Faulkner testified that he heard his wife scream and then two shots fired. He took a shotgun and went to the door which separated the living quarters from the store. From there he saw a black man dressed in dark clothing and a dark toboggan-style hat running out of the store. Mr. Faulkner went through the store and saw his wife lying on the floor behind the counter. He then ran out of the store and fired his shotgun twice at the fleeing assailant. The second time he fired the assailant was jumping over a barbed wire fence and running into a wooded area. Mr. Faulkner then returned to his wife and called an ambulance for her.

The Faulkner’s daughter-in-law lived next door to the store. She came over immediately and called the Panola County Sheriff’s Office. Deputy J.C. Sexton arrived approximately twenty minutes later. He was told what direction the assailant ran, whereupon he immediately followed on foot. When Deputy Sexton reached the barbed wire fence he found a right handed brown cotton glove stuck on a barb. Crossing the fence, Sexton found fresh boot prints in the mud and followed them approximately .25 miles to a logging road right off of the highway. Sexton testified that the boot tracks ended by some fresh tire tracks. The car was gone but mud on the road indicated the direction it traveled.

The Panola County Sheriff, David Bryan, ordered that roadblocks be set up throughout the area. Officers at the roadblocks were given a description of the suspect and told he was driving a red and white Malibu or a Chevelle. Shortly thereafter Sheriff Bryan received word that a man matching the suspect’s description had passed through at least two roadblocks in a red and white car. At the roadblocks the suspect was identified as the appellant, Bobby Caldwell. The sheriff then instructed Deputies Sexton and Rudd to bring Caldwell in for questioning.

Sexton and Rudd immediately went to Caldwell’s parents’ home where they found Caldwell washing a red and white Chevrolet. Caldwell was dressed in dark coveralls, toboggan hat and rubber boots. Deputy Sexton testified that Caldwell’s boot tracks in the mud around the car matched those he had followed in the woods a few hours earlier. The officers told Caldwell that they wanted him to accompany them to the Batesville jail because the Sheriff wanted to talk to him. Caldwell started toward the open door on the driver’s side of his car when Deputy Sexton noticed the handle of a pistol partially exposed under the car seat. Sexton ordered Caldwell to “Woap, hold it right there” and Deputy Rudd handcuffed him. Sexton retrieved the pistol and determined that it had four (4) live rounds and two (2) spent cartridges in it.

Caldwell was taken to the Batesville jail between 10:00 a.m. and 11:00 a.m. the morning of the shooting. A search of his clothing revealed a left handed brown cotton glove similar to the one found on the fence. Caldwell was given his rights and he denied any involvement in the shooting. He was then placed in a lineup and identified by Mr. Faulkner as the assailant.

The following morning Caldwell asked to speak to Deputy Rudd. Rudd and Sheriff Bryan then interviewed Caldwell and from that interview emerged a three page statement in which Caldwell admitted shooting Mrs. Faulkner while attempting to rob her store. The statement is in the sheriff’s handwriting and is not signed by Caldwell. Caldwell denied ever having made the statement. Following the statement Caldwell was formally arrested and charged with Mrs. Faulkner’s murder.

The proof at trial included Mr. Faulkner’s in-court identification of Caldwell as the assailant, Caldwell’s statement, and several expert witnesses who testified that the boot tracks, tire tracks, and ballistic comparisons all corresponded with Caldwell’s boots, tires and weapon confiscated from his car. The jury found Caldwell guilty. The same jury also imposed the death penalty.

Caldwell’s first assignment of error groups together four different arguments: (1)the admission of evidence of other crimes during the hearing on the legality of his warrantless arrest, (2) the lack of probable cause to make an arrest, (3) the failure to inform him of his arrest, and (4) the court’s error in weighing the evidence. Although lumped together under one assignment of error, we will discuss each of these arguments separately so as to avoid confusion.

At the time Sheriff Bryan directed Deputies Sexton and Rudd to bring Caldwell in for questioning, the sheriff suspected that he was involved in an attempted robbery of a package store. The package store robbery occurred on October 20, 1980, just nine days prior to Mrs. Faulkner’s murder. Sheriff Bryan had information from witnesses to the attempted package store robbery, that the suspect was a black male in his early to mid twenties and drove a two tone red car which had been shot in the trunk during the attempted robbery. The sheriff later received information that a car matching the description of that used in the attempted robbery had been at a local convenience store and had a recently patched and painted hole in the trunk. The information also included the car’s license tag number, PAN 777. A check on that tag revealed the car was registered to Caldwell’s father, Dempsey Caldwell, Sr. Using this information, Sheriff Bryan discovered that Caldwell was on work release from Parchman and had not been at work the day of the attempted robbery of the package store. Sheriff Bryan had ordered Deputy Rudd to locate Caldwell but these efforts had been futile. When Deputies Sexton and Rudd arrived at the home of Caldwell's father, after Mrs. Faulkner’s shooting, the red and white car Caldwell was washing had a patch on the trunk and had been freshly painted.

In the hearing on Caldwell’s motion to declare the warrantless arrest illegal and to suppress evidence obtained therefrom, the judge allowed all of the foregoing testimony regarding the attempted package store robbery. Caldwell argues that evidence of other crimes was inadmissible during this hearing. His position is that the evidence was irrelevant to the purpose of the hearing — determining whether probable cause for his arrest existed. It is a settled rule in Mississippi that proof of a crime distinct from that alleged in the indictment is generally inadmissible at the accused’s trial on the merits. Eubanks v. State, 419 So.2d 1330 (Miss.1982). The rationale for this rule is that evidence of other crimes may tend to prejudice the minds of the jurors or confuse them as to the real issues on trial.

In the instant case, there was no possibility that the evidence would prejudice the jury because the evidence was taken during a suppression hearing before a jury had even been impaneled. In Brooks v. State, 242 So.2d 865 (Miss.1971), this Court held that the “acid test” is the relevancy of the evidence to the purpose or purposes for which it is sought to be introduced. The relevancy here must relate to probable cause for the arrest. Certainly the fact that the law enforcement officers considered Caldwell a suspect in another recent similar crime involving an attempted robbery was relevant to their suspicion and he was involved here, particularly so when descriptions of the suspect and get-away cars were identical. Because there was no jury at this hearing the policy considerations designed to prevent prejudice do not apply to this evidence and its admission was not error.

• Did probable cause exist at the time of Caldwell’s arrest? In Michigan v. De-Fillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979), the United States Supreme Court stated that “probable cause to justify an arrest means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” 443 U.S. at 37, 99 S.Ct. at 2632, 61 L.Ed.2d at 350. In Powe v. State, 235 So.2d 920 (Miss.1970), this Court set forth a two-pronged test to determine probable cause. The arresting officer must first have reasonable cause to believe a felony is being committed and secondly, must have reasonable cause to believe that the person proposed to be arrested is the one that committed it. Reasonable cause to believe a suspect has committed a crime does not require evidence sufficient to support a conviction. Powe, supra. Caldwell concedes the first part of this test but he argues that there was not reasonable cause to believe that he had committed the crime.

The evidence at the hearing shows that Officers Sexton and Rudd had ample cause to reasonably believe Caldwell committed the crime. Caldwell matched the description the officers had for the suspect as related to both physical description and wearing apparel and he was washing a car that matched the description of the vehicle involved. Also, Officer Sexton recognized Caldwell’s boot print as identical to those he followed through the woods behind the bait shop. At the time of the arrest the officers also had information that Caldwell had passed through at least two roadblocks in the area of the crime. We hold that that information was sufficient to give the officers reasonable cause to believe Caldwell was involved in the crime.

Was Caldwell adequately informed of his arrest? Sheriff Bryan testified that Caldwell was not officially arrested until after he gave the statement on October 30, almost 24 hours after being taken into custody, although he was informed of his rights prior to that. In the case of Hinton v. Sims, 171 Miss. 741, 158 So. 141 (1934), this Court ruled that an arrest was illegal where the arresting officer failed to notify the suspect he was under arrest. In Hinton, we said:

Although the evidence showed that Hinton knew Sims and Myers, and knew that they were deputy sheriffs, it was the duty of Sims to inform him to consider himself under arrest, or by some other language convey to Hinton the idea that he was attempting to arrest him. Instead of doing that, he used the language of a highwayman, “Put up your hands.” And, by the way, during these times it is well known that some officers of the law have turned bandits. If it had been shown that Hinton was a desperate and dangerous criminal, a well-known killer, or a would-be killer, Sims might have been justified in proceeding as he did. Gurley v. Tucker [170 Miss. 565], 155 So. 189. Must every man, innocent or guilty, put up his hands whenever commanded to do so by an officer, whether in the daytime or nighttime, and regardless of the situation and surroundings, without being informed by the officer of the reason for the command? We think not. We do not mean to convey the idea that the officer must always inform the person sought to be arrested of the object and cause of the arrest before it is made, but we do hold that, except in rare cases, such as referred to in the Gurley Case, he should inform him that he consider himself under arrest.

171 Miss. at 747, 158 So. at 143. Caldwell meets the requirement of the Gurley exception as a desperate and dangerous criminal. Also, the fact that he was under arrest was certainly obvious to Caldwell as he was not free to leave the Batesville jail, was informed of his rights and of the fact that the sheriff wanted to question him regarding a murder. These facts read together indicate that Caldwell was well aware of his arrest prior to being notified thereof. As Caldwell was given his rights and knew that he could request an attorney, the failure to expressly inform him of his arrest on October 29 was not a reversible error. Based on all the foregoing, it cannot be said that the trial judge’s ruling at the suppression hearing was against the overwhelming weight of the evidence.

Caldwell’s second assignment of error is the trial court’s failure to suppress the alleged statement. Here it must be noted that Caldwell does not contend that the statement was illegally obtained, rather he argues that it was never made. This Court has held that when there is a conflict as to whether an accused actually gave a statement the resolution of such conflict is for the jury. Talbert v. State, 347 So.2d 352 (Miss.1977). In Talbert this Court held:

The true rule, as applied by the trial court in this case, is found in Weathers v. State, 237 So.2d 441 (Miss.1970). In that ease, the police officer testified that a confession had been made, and the defendant claimed that it had not. We held, “The conflict between Weathers and the officer as to whether Weathers had, in fact, made the statement attributed to him created a factual issue, the resolution of which lay peculiarly within the province of the jury.” Id. at 442. Thus, the court properly admitted the testimony of Deputy Sheriff Nail regarding Talbert’s confession. The jury was free to decide whether the statement had been made, and to decide what weight to give it.

347 So.2d at 355. Therefore, based on Tal-bert, the statement was properly admitted and it became a question for the jury as to whether Caldwell ever made such statement.

Caldwell’s third assignment of error contends that the refusal of the trial court to grant his motion that he be provided with an expert in the field of ballistics and an investigator was a denial of due process. Prior to the trial Caldwell filed a motion for an order that he be provided with psychiatric and ballistic experts at state expense. The trial court granted the motion as to the psychiatric expert but denied the ballistic expert. In Phillips v. State, 197 So.2d 241 (Miss.1967) this Court ruled on the necessity of providing criminal defendant with a psychiatric expert:

Neither the United States Constitution nor the Mississippi Constitution requires that the nation or state furnish an indigent defendant with the assistance of a psychiatrist. The only assistance that they require is the assistance of legal counsel. (Emphasis ours)

197 So.2d at 244. In the case of Bullock v. State, 391 So.2d 601 (Miss.1980), this Court went further to say that the failure to outline specific costs and in specific terms the purposes and value of such requested expert rendered the trial court’s refusal to authorize such expenditure non reversible. In the instant case Caldwell’s motion simply included the general statement that the requested expert “would be of great neces-sarius witness.” It did not estimate the cost of such expert nor the specific value. Therefore, the trial court’s failure to provide the requested expert witness or investigator did not constitute reversible error.

Caldwell’s final assignment of error as to the guilt phase is that the state failed to prove venue of the crime. This contention is readily disposed of. During the redirect examination of Sheriff Bryan the following exchange between the prosecutor and sheriff occurred:

Q. Sheriff Bryan, what judicial district, county and state is Mrs. Lee’s located in, please?
A. First Judicial District, Panola County, State of Mississippi.

Prior testimony had shown the murder to occur at Mrs. Lee’s Bait Shop therefore, venue was established.

Finding no reversible error in the guilt phase, it is affirmed.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, PRATHER and ROBERTSON, JJ., concur.

HAWKINS, J., not participating.

PART II

BROOM, Presiding Justice,

for the Court:

Defense counsel, in his closing argument, asked on behalf of the defendant “that the rest of his life be spent behind bars”. He was suggesting to the jury that should it fix the defendant’s punishment at life imprisonment, the effect of such a sentence would be life behind bars without any parole or leniency extended. Having made that statement to the jurors,, defense counsel then quoted a poem about “judgment”, “mercy”, “Our Father in Heaven”, “forgiveness”, and electrocution. He discussed the Ten Commandments and asked the jurors to judge the defendant “as Jesus would do.” Then he again repeated,

I’m asking you to put him in jail for the rest of his life. He’s violated one of the Ten Commandments. “Thou shalt not kill.” But, doesn’t that apply to us, too? Should we make it our decision to kill someone else? One of the most remarkable phrases I’ve ever heard was said by a man who was nailed to the cross, who was tortured and just before he died, he said these words, “Father, forgive them for they know not what they do.”

(Emphasis added).

Relying upon Howell v. State, 411 So.2d 772 (Miss.1982); Evans v. State, 422 So.2d 737 (Miss.1982); Gilliard v. State, 428 So.2d 576 (Miss.1983); and Edwards v. State, 441 So.2d 84 (Miss.1983), reversal is sought because the prosecutor commented to the jurors that “the decision you render is automatically reviewable by the Supreme Court.” Hill v. State, 432 So.2d 427 (Miss.1983), held that the prosecutor’s statement to the jury that their finding would not be the “last word” was procedurally waived for failure of any objection being made to the argument. In the present case, objection was made but the matter was not assigned as error on appeal here.

Pertinent here, though not precisely analogous on the facts, is the rationale and reasoning of the United States Supreme Court in California v. Ramos, — U.S. -, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983). Ramos involved a challenge made to a state jury instruction which told the jury that

[Ujnder the State Constitution a Governor is empowered to grant a reprieve, pardon, or commutation of a sentence following conviction of a crime.
Under this power a Governor may in the future commute or modify a sentence of life imprisonment without possibility of parole to a lesser sentence that would include the possibility of parole.

— U.S. at -, 103 S.Ct. at 3450, 77 L.Ed.2d at 1177.

On appeal, the California Supreme Court held that the jury instruction required reversal because it violated the eighth and fourteenth amendments for inviting the jury to consider factors foreign to the task of deciding whether the defendant should live or die, and injected an entirely speculative element into the capital sentencing determination. It also held that reversal was warranted because the instruction left the jury with the mistaken belief that the only way to keep the defendant off the streets was to sentence him to death.

We note here that defense counsel’s closing argument for Bobby Caldwell in the present case stated that the jury should effectively remove Caldwell from society forever by giving him a sentence of life imprisonment. This is an obvious inaccuracy and misstatement of the law because there is almost always a possibility of parole in every case, except cases involving persons convicted and sentenced as habitual criminals.

Clearly, Ramos leaves the state with the prerogative to determine whether juries should be informed of sentencing alternatives such as parole or commutation of a sentence. By the same reasoning, states may decide whether it is error to mention to jurors the matter of appellate review, which review is mandated by our statute: Mississippi Code Annotated § 99-19-105 (Supp.1982). On this basis, we think, upon the facts of this case, reversal is not warranted merely because the jurors during the sentencing phase were told that death penalty trials are subject to appellate review by this Court.

Again it is pointed out that it was here in the present case, during defense counsel’s argument, that he inaccurately sought to convince the jury that if they meted out a life sentence the defendant would remain in prison the remainder of his life. He left them with the impression that there would be no parole or commutation of sentence. He emphasized his pitch for mercy by referring to the Ten Commandments, Jesus and the Heavenly Father. In this context, and upon the cogent evidence of the defendant’s guilt, we do not think the punishment phase should be reversed merely because the prosecutor (subsequent to the defense argument) and then the judge truthfully and accurately stated that the sentence of death would be automatically reviewed by a higher court.

Evidence of the defendant’s guilt is overwhelming in the present case and it cannot be said that any injustice would occur by affirmance. Here it appears upon the whole record that the defendant’s guilt of an extremely calloused and senseless murder has been established beyond all reasonable doubt. Indeed, the evidence of guilt is not even close but is absolutely overwhelming. Further, the evidence clearly establishes that his past criminal record includes four convictions of felonies involving the use of threat or violence to another person.

Prueitt v. State, 261 So.2d 119 (Miss.1972), is a case in which we dealt with the situation where counsel sought to argue a question not raised by the assignment of error. Writing for the Court in that ease, Justice Jones states “We do not deem these matters [those not assigned] plain error _” Bell v. State, 360 So.2d 1206 (Miss.1978), although I dissented because I deemed the record tainted with so many serious errors as to render the trial an improper basis to affirm the death penalty, is analogous to the present case, in that Bell dealt with errors “not urged or argued in the briefs .... ”

This case is factually distinguishable from Howell, Evans, Gilliard, Edwards and Hill, supra. While the error complained of here was not invited to the extent that the reviewability of death penalty cases was mentioned first by defense counsel, defense counsel sought to leave the impression that a life imprisonment sentence would absolutely leave the defendant behind bars the rest of his life. Upon the evidence and posture of this record, reversal is not warranted.

As required by Mississippi Code Annotated § 99-19-105, (Supp.1982), we have carefully reviewed the entire record including the sentencing phase of the trial. We find that no influence of passion, prejudice, or any other arbitrary factor influenced the jury in its imposition of the death penalty. The jury’s finding the aggravating circumstances: that the murder was committed while the defendant was engaged in the commission of robbery or attempted robbery, that it was committed for pecuniary gain, that it was especially heinous, atrocious, or cruel, and that the defendant was previously convicted of four felonies involving the use of threat or violence to the person, and that “there are insufficient mitigating circumstances to outweigh the aggravating circumstances” was supported beyond a reasonable doubt by the evidence. We think the evidence clearly justifies the death penalty.

As § 99-19-105 requires, we have reviewed the cause including all motions, pleadings, requests and jury instructions. Appropriate guidance was given the jurors during all phases of the trial. Comparison of this case with other cases in which the death penalty has been imposed and upheld establishes that such penalty is not wanton, freakish, excessive, nor disproportionate to the sentence imposed in such cases. See Appendix “A” attached. Execution of defendant Bobby Caldwell would be consistent and evenhanded with all the post-Jack son death penalty cases previously affirmed by us. Caldwell received a fair trial in all respects. Our examination of the record reveals no reversible error and no such error has been established by the briefs or oral argument. Therefore, we must affirm.

AFFIRMANCE is ordered, and Wednesday, the 21st day of December, 1983, is fixed as the date on which the death sentence shall be executed, as provided by law.

AFFIRMED.

WALKER, P.J., ROY NOBLE LEE and BOWLING, JJ., concur as to Part II.

DAN M. LEE, J., PATTERSON, C.J., PRATHER and ROBERTSON, JJ., dissent.

HAWKINS, J., not participating.

APPENDIX “A”

DEATH CASES AFFIRMED BY THIS COURT:

Irving v. State, 441 So.2d 846 (Miss.1983).

Tokman v. State, 435 So.2d 664 (Miss.1983).

Leatherwood, v. State, 435 So.2d 645 (Miss.1983).

Hill v. State, 432 So.2d 427 (Miss.1983).

Pruett v. State, 431 So.2d 1101 (Miss.1983).

Gilliard v. State, 428 So.2d 576 (Miss.1983).

Evans v. State, 422 So.2d 737 (Miss.1982).

King v. State, 421 So.2d 1009 (Miss.1982).

Wheat v. State, 420 So.2d 229 (Miss.1982).

Smith v. State, 419 So.2d 563 (Miss.1982).

Edwards v. State, 413 So.2d 1007 (Miss.1982).

Johnson v. State, 416 So.2d 383 (Miss.1982).

Bullock v. State, 391 So.2d 601 (Miss.1980).

Reddix v. State, 381 So.2d 999 (Miss.1980).

Jones v. State, 381 So.2d 983 (Miss.1980).

Culberson v. State, 379 So.2d 499 (Miss.1979).

Gray v. State, 375 So.2d 994 (Miss.1979).

Jordan v. State, 365 So.2d 1198 (Miss.1978).

Voyles v. State, 362 So.2d 1236 (Miss.1978).

Irving v. State, 361 So.2d 1360 (Miss.1978).

Washington v. State, 361 So.2d 61 (Miss.1978).

Bell v. State, 360 So.2d 1206 (Miss.1978).

DEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR RE-SENTENCING TO LIFE IMPRISONMENT:

Irving v. State, 441 So.2d 846 (Miss.1983).

Dycus v. State, 410 So.2d 246 (Miss.1983).

Edwards v. State, 441 So.2d 84 (Miss.1983).

Coleman v. State, 378 So.2d 640 (Miss.1979).

DAN M. LEE, Justice,

dissenting as to Part II:

Certainly the most solemn and portentous duty any state may require of its citizens is to serve as a juror in a capital murder trial. Not even the role of executioner can be said to require greater introspection, for the executioner is not required to decide fate, but only to implement the decisions of others. Only the hearts and minds of the jurors may impose that ultimate punishment by unanimously agreeing that an accused has committed such an atrocious act as to warrant the taking of his life. The gravity and uniqueness of the death sentence require that jurors in a capital case view their role with particular importance, and fairness to the accused dictates that nothing occur at trial which lessens or diminishes the jurors’ perception of their responsibility. Because I believe that the remarks by the prosecutor and trial judge concerning appellate review had this effect, I respectfully dissent from Part II of the majority’s opinion.

The majority relies on California v. Ramos, — U.S. -, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), yet they acknowledge that Ramos leaves the decision of whether to inform the jury of extraneous matters with the individual states. This Court has made it plain that comments such as occurred in this trial constitute reversible error in Mississippi. In Howell v. State, 411 So.2d 772 (Miss.1982), we held that a prosecutor’s argument which informed the jury that the verdict was subject to a right of appeal constituted reversible error. The logic of this rule is beyond question. Comment of this nature has the effect of lessening a juror’s sense of responsibility for the fate of the accused. Those jurors who are not convinced that a defendant’s life should be taken may not argue so strongly or hold their position when they are led to believe that a reviewing court will correct a mistake in their judgment.

In the instant case the error went far beyond that in Howell. In Howell the prosecutor repeatedly ignored the trial court’s ruling that his comments concerning appellate review were improper. Here the prosecutor’s comments went so far as to not only lessen the jury’s sense of responsibility but to practically remove it altogether. The prosecutor argued:

Now, they would have you believe that you’re going to kill this man and they know — they know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable. They know it. Yet they_ (emphasis added)

At this point the defense counsel objected and the prosecuting attorney responded:

Your Honor, throughout their argument, they said this Panel was going to kill this man. I think that’s terribly unfair, (emphasis added)

The trial court then compounded the error with a ruling that crowned it with a false halo of propriety:

All right, go on and make the full expression so the jury will not be confused. I think it is proper that the jury realizes that it is reviewable automatically as the death penalty commands. I think that information is now needed by the jury so they will not be confused. (emphasis added)

The prosecuting attorney then made his “full expression.” He argued that defense counsel had insinuated

that your decision is the final decision and that they’re going to take Bobby Caldwell out in the front of this courthouse in moments and string him up and that is terribly, terribly unfair. For they know, as I know, and as Judge Baker has told you, that the decision you render is automatically reviewable by the Supreme Court.

A reading of the prosecutor’s comments coupled with those of the trial judge could certainly give a juror the impression that the jury’s decision was nothing more than window dressing. Not only did those comments reduce the jury’s sense of responsibility, they were factually inaccurate. A jury should not be told that they are not “going to kill this man” if they decide to impose the death penalty. The purpose of a bifurcated trial is to insure that it is indeed solely the jury that condemns an accused to die and that they have no partners in the exercise of that awesome responsibility. Even a novice attorney knows that appellate courts do not impose a death penalty, they merely review the jury’s decision and that review is with a presumption of correctness. When a jury is faced with so solemn a task as deciding whether to impose the death penalty we must not allow their sense of responsibility to weaken. In my view the majority’s opinion takes a step backward from Howell, a step which I feel is misguided.

The majority’s opinion fails to make it clear just why the remarks in question are not reversible error, although two possible alternatives are discussed; invited error and failure to raise the issue on appeal. Apparently the majority has decided that defense counsel invited error by arguing that the jury should sentence Caldwell to life imprisonment. Here the majority’s position fails in two regards. First, because the statute provides only two possible sentencing alternatives, life imprisonment or death, defense counsel has little choice but to plead that his client be sentenced to life imprisonment. Section 99-19-101 Miss. Code Ann. (Supp.1983). It is a twisted bit of logic indeed that denies a defendant’s counsel the right to argue the only statutory alternative to death without calling that argument an invitation to error. Secondly, the concept of invited error fails because it is simply inapplicable to the facts of this case. Assuming without accepting the majority’s position that the defense counsel’s argument invited error, it certainly did not invite this error. Asking the jury to show mercy does not invite comment on the system of appellate review. This is true whether the plea for mercy discusses Christian, Judean or Buddhist philosophies, quotes Shakespeare or refers to the heartache suffered by the accused’s mother. The plea is made directly to the jury as only they may impose the death sentence. Under our standards of appellate review mercy is irrelevant. There is no appellate mercy. Therefore, the fact that review is mandated is irrelevant to the thought processes required to find that an accused should be denied mercy and sentenced to die. Defense counsel’s plea for Caldwell’s life did not invite the comment in question.

The only other basis in the majority opinion for refusing to find that the comment was reversible error is a brief mention that an objection was made but that it was not assigned as error on this appeal. In Hill v. State, 432 So.2d 427 (Miss.1983) we reaffirmed Howell and held that comments of this nature are “clearly erroneous and would ordinarily be highly prejudicial.” 432 So.2d at 439. In Hill, unlike the present ease, there was no contemporaneous objection to the prosecutor’s comments. We refused to reverse Hill because of the difficulty of distinguishing between trial tactics and simple failure to object. Here we are not faced with that problem. The failure to assign the matter as error could in no way be called a deliberate trial tactic. Surely we will not send a man to the gas chamber because his attorney failed to address an obvious error. We have repeatedly held that we give a heightened review in capital cases. Laney v. State, 421 So.2d 1216 (Miss.1982); Irving v. State, 361 So.2d 1360 (Miss.1978). If the concept of heightened review is to have any meaning it must stand for the rule that we will not allow reversible error to be ignored because of the attorney’s failure to raise it. The purpose of heightened review is to insure that a procedural bar does not become a guillotine. I would reverse the sentencing phase of the bifurcated trial and remand for a new trial on sentencing alone.

PATTERSON, C.J., and PRATHER and ROBERTSON, JJ., join in this dissent.

      . PART I, the guilt phase of this opinion, is written by Dan Lee, Justice for the Court, joined by all other Justices except Justice Hawkins, who recused himself from the case.
      PART II, the penalty phase of this opinion, is written by Broom, Presiding Justice, joined by Walker, P.J., Roy Noble Lee and Bowling, JJ. Dissent by Dan Lee, Justice, joined by Patterson, C.J., Prather and Robertson, JJ. Hawkins, J. not participating. Being a 4-4 tie the death penalty is therefore affirmed.

      . To that extent, the response of the prosecutor was invited.

      . We note that Caldwell’s trial counsel is not representing him in this appeal and that his current counsel had no involvement in this matter prior to the appeal.


source: Caselaw Access Project

author: PRATHER, Justice, HAWKINS, Justice,

license: Public Domain

text:
    Charles NEWSON v. Aaron E. HENRY and Ruth Armstrong Ross, Executrix of the Estate of L.A. Ross, Jr., Deceased.
    No. 54205.
    Supreme Court of Mississippi.
    Nov. 23, 1983.
    Rehearing Denied Jan. 25, 1984.

      Cleve McDowell, Cleveland, for appellant.
    W.O. Luckett, Jr., W. Kurt Henke, Luck-ett, Luckett, Luckett & Thompson, Clarks-dale, for appellees.
   PRATHER, Justice,

for the Court:

Aaron E. Henry and L.A. Ross, Jr. filed defamation suits in the Circuit Court of Coahoma County based upon a newspaper article written by Wilson F. Minor and published in the Capital Reporter Newspaper. The article quoted comments about Henry and Ross made by Charles Newson. New-son, Minor, and the newspaper were all made defendants; however, upon pleas of improper venue jurisdiction, the actions against Minor and the newspaper were abated in Coahoma County for transfer to Hinds County.

A jury verdict in the amount of $2,500.00 for punitive damages only was returned against Newson for libelous conduct in each case, but no actual damages were awarded. From judgment, both parties appeal.

Newson, appellant, asserts that the judgment cannot avail because (1) the slanderous statements were not published in Coa-homa County; (2) because malice of New-son was not proven against the plaintiffs who are public figures; and, (3) because punitive damages cannot be supported without an award of actual damages.

The plaintiffs cross-appeal assigning as error the trial court’s refusal to grant a new trial as to actual damages only, or in the alternative, an additur.

I.

Dr. Aaron E. Henry is a black businessman, and a pharmacist, of Clarksdale. He was former co-chairman of the State Democratic Executive Committee and on the National Board of Directors and Mississippi president of the National Association for the Advancement of Colored People. Henry has been and is politically active in support of, or opposition to, political issues, organizations, and candidates for public office. In 1979, Dr. Henry was himself elected to the Mississippi State Legislature. In his testimony Dr. Henry admitted that he is a public figure.

L.A. Ross, Jr. is a 74 year old retired farmer of Coahoma County who served as sheriff of that county for one term, from 1960 through 1963. In 1967, Ross ran an unsuccessful campaign for reelection for sheriff; however, upon defeat, he left political life totally. Since 1967, Ross has farmed to some extent, but upon amputation of his leg, and confinement to a wheel chair, Ross’ activities have been basically confined to his wood-working shop at his home. In his two campaigns for sheriff, Ross had the support of Dr. Henry.

Another personality in this lawsuit is Charles Newson, a Clarksdale auto parts dealer. Newson was a participant with Henry in political activities since 1965. Henry was instrumental in securing federal funding for Coahoma Opportunities, Inc., (C.O.I.), and in Newson’s becoming employed there. While so employed, Newson sought Henry’s advice about seeking political office; Henry advised Newson that such activity was prohibited by the Hatch Act while he was employed by the federal government.

Upon announcement of Newson’s seeking a political office, the Directors of C.O.I. offered Newson the opportunity of resigning from his job or withdrawing from the race. Newson declined to do either, and he was fired. Subsequently, Newson asked Henry to assist him with the Directors in securing reemployment; Henry declined stating that he had personally advised him otherwise prior to the firing. Newson’s reaction was described as being “very angry.” The record does not reflect the time of this occurrence, except that it preceded the newspaper article involved in this lawsuit.

Prior to June 19, 1980, Charles Newson read an article in the Capital Reporter attributing critical remarks to Dr. Henry about Charles Evers. Upon reading that article, Charles Newson telephoned Wilson (Bill) F. Minor, the newspaper reporter at the Capital Reporter, and made representation to him that Dr. Henry accepted $3,500.00 to “deliver the black vote in Coahoma County” to L.A. Ross, a candidate for sheriff in 1968.

Newson testified that Minor was to show him the proposed article before printing. The stated amount and the date were erroneous. However, he admitted that the article otherwise was written substantially as he represented to Minor. The entire text of the article appears in Appendix A to this opinion.

Minor did not know Newson prior to this phone call. He attempted to contact Henry once to discuss the alleged improper activity, but was unable to do so. Moreover, he did not attempt to locate Ross at all in order to confirm the story, nor did he use any other means of investigation to verify it before publication on June 19, 1980.

Henry and Ross sought retraction from Minor and Newson, but their efforts failed. After publication, Newson allegedly made such comments as: “I’ve got him now” and “I tore him up.”

During trial, there was testimony which indicated that Newson’s motive in divulging the story to Minor was to harm Henry because of Henry’s failure to aid in New-son’s reemployment with C.O.I.

II.

The appellant first contends that the alleged slanderous statements were not published in Coahoma County, and that this was an element of the plaintiff’s substantive cause of action.

Newson claims that publication to a third party in Coahoma County is necessary to be proven. Newson telephoned from Coa-homa County to a third party, Minor, in Hinds County. Minor wrote the spoken words and published them in Jackson. The newspaper was circulated over a wide area, including Coahoma and Hinds Counties via the Capital Reporter.

However, Henry and Ross did not have to prove publication in any particular county in order to recover on the merits of their claim. They did have to prove that the first publication occurred in Coahoma County in order to fix venue in Coahoma County.

The applicable rule is that the author of the defamation is liable for any secondary publication which is the natural consequence of the author’s original action. 53 C.J.S. Libel and Slander § 85 (1948).

Newson was well aware of the proposed publication and was to have approved the content. He knew the natural consequence of his telephone call to the reporter and expected the republication of his words. We find no merit to this argument.

IIIA.

The plaintiffs’ failure to meet their burden of proof in establishing malice in this defamation suit is the next assignment of error.

Our Mississippi constitution guarantees to every citizen freedom of speech and of the press as “sacred rights.” Miss. Const, art. Ill, § 13. However, this right has been counterbalanced with the principle that individuals should “enjoy their reputations unimpaired by false and defamatory attack.” 50 Am.Jur.2d 512, Libel and Slander, § 1 (1970). For damage to one’s reputation, defamation suits provide redress as a limitation, to freedom of speech and of the press. But proof of malice is an element necessary to recover damages; however, there are exceptions in suits that are actionable per se.

However, a paramount public policy has developed in cases where comment against a public figure is involved. Our Court has adopted the standard for proof of malice as set forth in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In the case of a public figure, the burden of proof of malice by clear and convincing evidence is on the plaintiff. Reaves v. Foster, 200 So.2d 453 (Miss.1967), Gulf Publishing Co., Inc. and David Bean v. Webb Lee and Tommy Gollott, 434 So.2d 687 (Miss.1983).

The burden of proof which a public figure must prove to recover for a defamatory remark is that the statement was (1) made with knowledge that it was false, or (2) made with reckless disregard of whether it was false or not. Gulf Publishing Co., Inc., supra. The inquiry into malice focuses upon the state of mind at the time of publication of the person speaking or printing the statement.

Initially, we observe that the burden of proof of malice required of a public official or figure, who is subject to the fair comment doctrine, (Edmonds v. Delta Democrat Publishing Company, 230 Miss. 583, 93 So.2d 171 [1957]) is different from a person not a public figure. Therefore, we consider the status of these two plaintiffs involved in this controversy at the outset for the purpose of determining their burden of proof in establishing malice.

Admittedly, Dr. Aaron E. Henry is a public figure and public official, -as he so testified. No challenge is made of this conclusion. The status of L.A. Ross, Jr. is not so clear. He was a former public officer as sheriff from 1960 to 1963 and a public figure in his unsuccessful campaign for sheriff in 1967. Ross had been retired from public life for thirteen years when the article was published in 1980.

The question then arises whether, after the passage of time and his withdrawal from public life and controversies, Ross lost his public figure status and is not required to meet the actual malice standard of New York Times Co., Inc. v. Sullivan, supra.

We have held that one holding a “prominent position public or quasi-public in nature” is covered under the fair comment doctrine. Reaves, supra. We find no precedent within our jurisprudence showing when those attributes may be abandoned, although other jurisdictions have addressed the question.

In Wolston v. Reader’s Digest Association, Inc., 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979), the Supreme Court held that the plaintiff was not a public figure and was not required to meet the actual malice standard of New York Times Co. v. Sullivan. Although the majority opinion did not mention the lapse of time question, the concurring opinion written by Justice Blackmun with whom Justice Marshall joined, agreed with the result on the basis that the “lapse of the intervening sixteen years renders consideration of this petitioner’s original public figure status unnecessary. ...” Id. at 170, 99 S.Ct. 2708.

The majority in Wolston reaffirmed that there are two ways persons might be a public figure for purposes of the “actual malice” standard of Times v. Sullivan: (1) by occupying positions of such persuasive power and influence that they are deemed public figures for all purposes, and (2) more commonly, those that have thrust themselves to the forefront of a particular public controversy in order to influence the resolution of the issues involved. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

In Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), the Supreme Court did not address the passage of time issue; however, in a footnote the Court acknowledged, “There may be cases where a person is so far removed from a former position of authority that comment on the manner in which he performed his responsibilities no longer has the interest necessary to justify the New York Times rule.” Id. at 88, 86 S.Ct. at 677, 15 L.Ed.2d 606, n. [15] 14.

An entertainer who had retired from that vocation for eight years while she became a companion of another entertainer, Elvis Presley, was still considered a public figure by the Fifth Circuit Court of Appeals when her name continued to be connected with Presley. In Brewer v. Memphis Publishing Co., Inc., 626 F.2d 1238 (5th Cir.1980), the Court held:

It might be that during the “active” public figure period a wider ranger of articles, including those only peripherally related to the basis of the public figure’s fame, are protected by the malice standard and that the passage of time or intentional retreat narrows the range of articles so protected to those directly related to the basis for fame. [Id. at 1257].

Of a similar holding, the Fourth Circuit Court of Appeals held that Neil Johnston had not changed from a public figure as a professional basketball player to a private person as a college basketball assistant coach. The publication referred to events occurring twelve years prior and nine years after he had retired from professional basketball.

Moreover, mere passage of time will not necessarily insulate from the application of New York Times Co. v. Sullivan, publications relating to the past public conduct of a then “public figure”. No rule of repose exists to inhibit speech relating to the public career of a public figure so long as newsworthiness and public interest attach to events in such public career. [Time, Inc. v. Johnston, 448 F.2d 378 (4th Cir. 1971)].

Specifically addressing the passage of time since an event occurred and a subsequent publication, courts have made a factual termination in each case. Fitzgerald v. Penthouse International, Ltd., 525 F.Supp. 585 (D.C.Md.1981) (four years insufficient to erode public figure status).

Likewise, a person remains a public figure thereafter for purposes of later commentary or treatment of that controversy. Street v. National Broadcasting Co., 645 F.2d 1227 (6th Cir.1981). In the Street case, supra, a documentary revived the discussion of a rape trial that occurred forty years prior to the broadcast. The prosecutrix and main witness in a rape trial, even though she disappeared from public view for forty years, was held to still be subject to public discussion as a public figure.

Rawlins v. Hutchinson Publishing Co., 218 Kan. 295, 543 P.2d 988 (1975), is similar factually to the case under consideration. Rawlins, a police officer in 1964, was suspended and subsequently fired for conduct unbecoming a police officer in allegedly annoying a woman. In 1974 a republication of the reporting in a section called “Looking Backward” gave rise to an invasion of privacy, not libel, suit. Asserting that he had become a private citizen in the intervening ten years, Rawlins sought damage. However, the Kansas Court held the facts were a matter of public concern and public facts. Once the facts had entered the public domain, they remained there.

The Street and Rawlins cases suggest the principle which guides us to decision. Once a person becomes a public figure, he or she remains a public figure with respect to the event or events that made him or her a public figure in the first place. He or she may in time become a private figure, but only with respect to the events of his or her life occurring after he or she leaves public life.

Thirteen years had passed since Ross last sought public office. For the latter years of his life, he no doubt was a private figure. A person who seeks elective office, however, is as a matter of law a public figure. See, e.g., Manasco v. Walley, 216 Miss. 614, 63 So.2d 91 (1953). Ross was clearly a public figure in 1967. The defamatory statements made by New-son referred to Ross’ 1967 campaign for sheriff. Anything Ross did in connection with that campaign remains in the public domain and he remains a public figure when he brings suit for libel regarding the events of that campaign, even though the libel is not published until thirteen years later.

Accordingly, under the principles recited above and under the facts of this case Ross remained a public figure with respect to publications and commentary regarding his 1967 campaign for sheriff. This is so even though he no doubt became a private figure in the later years of his life. We therefore hold that in order to recover Ross was required to prove actual malice as defined above.

IIIB.

Did the plaintiffs meet their burden of proof of malice in this ease by clear and convincing evidence? Our Court has discussed the actual malice element necessary to be proven to support a judgment. Factual error, defamatory of a public figure’s reputation, was insufficient to warrant a damage award unless actual malice existed. As previously stated actual malice could only be shown by proof that the statement when made was (1) known to be false or (2) made in reckless disregard of whether true or false.

Cross-appellants here contend that the utterances were actionable per se and that a presumption of actual malice is raised, thus satisfying the New York Times test, supra. Travis v. W.H. Hunt, 224 Miss. 193, 79 So.2d 734 (1955). Ross and Henry assert that the statement here imputes a criminal offense of corrupt election practices and are therefore actionable per se. We believe the New York Times test applies. Reaves v. Foster, supra, Henry v. Collins (from this Court), 380 U.S. 356, 85 S.Ct. 992, 13 L.Ed.2d 892 (1965).

We address factually the events to determine malice. Clearly the facts developed anger, spite, ill will and hostility of Newson toward Henry because of New-son’s loss of employment. An intention to harm Henry’s reputation could be inferred from his remark that “I’ve got him now” and “I tore him up.” Newson never testified that he saw any money transfer from Ross to Henry. Henry testified that New-son told him that the statements to Minor were made through anger for Henry’s failure to help Newson get reemployed. At trial on this testimony, Henry was not cross-examined by defense counsel.

Newson’s testimony on this point stated that he saw Henry with some money and “based on my knowledge, if my memory serves me right, I think maybe Dr. Henry might have said the money came from Ross, too. I’m not sure.”

These facts evidence a reckless disregard for the truth sufficient to support proof of actual malice. We conclude that the plaintiff, Aaron Henry a present public figure and former public official, has met his burden of establishing malice under New York Times v. Sullivan, supra.

Ross, who is a public figure for purposes of this action, bases his claim on the same facts. It thus follows that he has likewise met his burden of proof.

IV.

Can punitive damages be supported without a jury award of actual damages?

The jury returned an award of $- 0 - actual damages and $2,500.00 punitive damages. Appellant urges this Court to reverse contending that punitive damages fail where no award of actual damages were made. However, several decisions rendered by this Court suggest that the law is otherwise under certain exceptions. For example, the Court determined in Jefferson v. Bates, 152 Miss. 128, 118 So. 717 (1928), where the words spoken were deemed actionable per se pursuant to a statute, that the plaintiff was entitled to exemplary damages without proving special damages. To the same effect is the case of Wells v. Branscome, 222 Miss. 1, 74 So.2d 743 (1954). The general law is set forth in 50 Am.Jur.2d Libel and Slander § 352 (1970) as follows:

[WJhere the defamation complained of is actionable per se, it is generally held that punitive damages may be awarded even though the amount of actual damages is neither found nor shown, for in such a case the requirement of a showing of actual damages as the basis of an award of exemplary damages is satisfied by the presumption of injury which arises from a showing of libel or slander that is actionable per se. But where the defamation is not actionable per se, punitive damages cannot be allowed unless either general or special damage is shown.

The rationale of this rule is based upon the principle that the defendant must have committed a tortious act before punitive damages can be assessed.

In Wrought Iron Range Co., et al. v. Boltz, 123 Miss. 550, 86 So. 354 (1920) we stated that:

[A]ny written or printed, language which tends to injure one’s reputation, and thereby expose him to public hatred, contempt, or ridicule, degrade him in society, lessen him in public esteem, or lower him in the confidence is actionable per se.... Id. at 558, 86 So. at 355 (Emphasis added).

See also, Brewer v. Memphis Publishing Co., 626 F.2d 1238 (5th Cir.1980).

Both plaintiffs offered proof from community leaders and acquaintances of damages to support their claim. Since libel was found and malice was supported by the proof, it was not necessary to award actual damages as a prerequisite to awarding punitive damage in suits that are actionable per se. Wells v. Branscome, supra, 50 Am.Jur.2d, supra.

We, therefore, find no merit in this assignment.

V.

The cross-appellants here assert through their cross-appeal that the lower court erred in denying their motion for a new trial as to actual damages only, or in the alternative, an additur.

We deny the cross-appeal and hold that the failure of the jury to assess actual damages, whether through inadvertence, mistake, or mischance, constitutes an error of form rather than of substance.

We are disposed to liberally construe the verdict in this case as a general verdict covering all of the damages, both actual and punitive, rather than strictly as an erroneous verdict.

We affirm the trial court and deny both appeal and cross-appeal.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P. JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and ROBERTSON, JJ., concur.

HAWKINS, J., specially concurs.

APPENDIX “A”

Clarksdale businessman critical of Henry by Bill Minor

A leading Clarksdale black businessman told the Capital Reporter that “no more than 10 percent of the blacks” are supporting Aaron Henry, the Clarksdale druggist and ousted Democratic co-chairman, in Henry’s Democratic party challenge.

“I think Aaron needs to step aside and let some new leadership come in that can negotiate with both sides,” said Charles Newsom, owner of a Clarksdale auto parts company and a land bonding business.

Newsom, who said that he had come forward as a critic of Henry “because nobody wants to challenge him and he needs to be challenged,” charged that Henry now “is wearing too many hats and he needs to give up some of them.”

The Clarksdale businessman contended that Henry “has been doing some of the same things he is accusing Charles Evers of doing ... selling his political influence.” Took $3,500

Newsom said in one specific incident dating back to 1968, Henry accepted $3,500 to “deliver the black vote in Coahoma County” to L.A. Ross, a candidate for sheriff.

“When we found it out in the Young Democrats (in Coahoma County), we rebelled against it,” said Newsom, and “Ross did not carry the election. But as far as I know, Aaron kept the money.”

In Henry’s battle over keeping the co-ehairmanship in State Democratic Executive Committee, Newsom said, “If he (Henry) was dissatisfied with Danny Cupit being chairman, Aaron should have asked to be chairman not just co-chairman, and accept the results of the committee vote. I believe he just wants to fan the black-white issue.”

Newsom said, “I think a good example of how much influence he has with the Democratic Party in Mississippi was in the U.S. Senate race two years ago, when he came out for Maurice Dantin, and Dantin got clobbered.”

“In name only”

Henry, state president of the NAACP, has also been president of the Coahoma County chapter of the NAACP for years, said Newsom, “but he is president here in name only, because he is not functioning ... he is only using it so he can have a WATS line and not have to pay for his telephone bill.”

Newsom described himself as a “self-made businessman, who doesn’t take hand outs from the government or any place else.”

His son, John Newsom, is president of the Correctional Officers Association at Parchman Penitentiary and is now about to receive his masters degree from Delta State University.

HAWKINS, Justice,

Specially Concurring.

I concur in affirming.

In my view it is irrelevant, however, whether Henry or Ross were public or private figures, and the cases discussing this question have no application here.

Newson was not a newspaper reporter or publisher. He originated the tale. If it was false, which the jury found to be the case, the jury had abundant clear and convincing evidence to find it came from plain old undiluted malice.

      . Ruth Armstrong Ross, as Executrix of the Estate of L.A. Ross, Jr., Deceased, was substituted as appellee on February 9, 1983.

      . Honorary doctorate degrees from three institutions were granted to Dr. Henry.

      . Charles Evers is another state and national public figure who had been a political candidate.

      . This testimony was apparently in error and should have been in 1967.


author: BROOM, Presiding Justice, HAWKINS, Justice,

text:
    Dr. James W. HOLMES v. Carol Dean ELLIOTT.
    No. 53926.
    Supreme Court of Mississippi.
    Nov. 30, 1983.

      Lawrence C. Gunn, Jr., Aultman, Tyner, Weathers & Gunn, Hattiesburg, Donald M. Waits, Wiggins, for appellant.
    Joe Sam Owen, Blackwell, Owen & Gunn, Gulfport, for appellee.
    Before BROOM, P.J., and DAN M. LEE and PRATHER, JJ.
   BROOM, Presiding Justice,

for the Court:

Medical malpractice of a surgeon, Dr. James W. Holmes, the appellant here, is the subject matter of this action, which pertains to his surgery upon his patient, Mrs. Carol Dean Elliott (the plaintiff/appel-lee). Trial in the Circuit Court of Stone County, the Honorable Ruble Griffin, presiding resulted in a Five Hundred Thousand Dollar ($500,000) jury verdict for Mrs. Elliott. However, the trial judge ordered a remittitur of one-half, resulting in a $250,-000 judgment for her. We reverse.

On his appeal, Dr. Holmes argues: (1) the evidence of his negligence was insufficient, (2) plaintiffs expert witness was not qualified, (3) the verdict is unsupported by adequate evidence, (4) his counsel was erroneously restricted in cross-examination of Mrs. Elliott’s medical expert, (5) evidence of the propriety of Mrs. Elliott’s “bladder irrigation” erroneously went to the jury, (6) excusing six jurors for cause was error, and (7) the verdict amount is “grossly excessive.”

Plaintiff Mrs. Elliott was employed as a licensed practical nurse by the Lumberton Citizens Hospital where Dr. Holmes, on September 27, 1977, performed a hysterectomy on her. Earlier in August, 1977, another physician, Dr. Robert Cook, did a pap smear and apparently saw symptoms causing him to refer her to her family physician, Dr. Warren Dale, who referred her to the defendant/appellant Dr. Holmes for specialized attention. Dr. Holmes then, on September 2, 1977, did a D & C and conization procedure (removal of tissue scrapings from the uterus and outside the cervix). Pathology revealed pre-cancerous symptoms, indicating the need for the hysterectomy which Dr. Holmes performed September 27, 1977, 25 days after the D & C and conization.

Dr. Holmes was the only practicing surgeon at the Lumberton, Mississippi, hospital where he did surgery for patients referred to him by other physicians at Poplar-ville, Wiggins, and Lumberton. Having graduated from the University of Tennessee Medical School in 1957, he has over 20 years practice in South Mississippi. He took extensive training in gynecological surgery and has been president of the Coast Counties Medical Society and received American Medical Association awards in 1977 and 1980 for special continuing education. Prior to performing Mrs. Elliott’s hysterectomy, he had performed over 500 such operations.

While yet hospitalized several days after her hysterectomy, Mrs. Elliott experienced incontinence (uncontrolled urination) which she reported to Dr. Dale, her regular physician in charge of her post-operative care. She went home from the hospital on October 13, and her incontinence continued. Then on October 25 she went to the Lum-berton Hospital Emergency Room where Dr. Holmes saw her. Holmes examined her by inserting a tinted dye solution into her bladder through a catheter. Appearance of the solution in her vagina established the fact of leakage from a rupture (fistula) between her bladder and vagina. At her request, he turned her over to Dr. Jack Daniels, a Hattiesburg urologist, who waited until some time in March, 1978, when he was able to repair the fistula and stop Mrs. Elliott’s incontinence. During that period of time, she suffered much embarrassment, discomfort, and mental frustration, and was unable to engage in sexual relationships. She lost about a year’s wages, $7,000, and had medical bills over $5,000.

Chief charge of negligence against Dr. Holmes was that he should have waited “at least four, and preferably six weeks” after the D & C and conization until doing the hysterectomy, rather than waiting only 25 days. Other charges of negligence were set forth in the pleadings but not pursued at trial. Her expert from Georgia, Dr. William D. Daniel (no relation to urologist Dr. Jack Daniels), testified that Dr. Holmes should have waited at least 28 days following the conization before doing the hysterectomy. In addition to this aspect of malpractice, jury instruction P-3 advised the jurors that they could find for Mrs. Elliott if they found that on October 25, 1977, Dr. Holmes’ bladder irrigation (dye insertion test) was improperly done. Other facts will be stated as needful herein.

First argument is that the “uncon-tradicted scientific evidence establishes the plaintiff’s expert was wrong” and on that basis Dr. Holmes “was entitled to a directed verdict”. Of course, in deciding whether there was sufficient evidence to make out a case to go to the jury, under our rule we are bound to favorably consider the evidence given on behalf of the plaintiff (together with reasonable inferences) and accept it as true. Then if such evidence makes out a case, it should not be held as insufficient to create a jury issue.

Summarized, the testimony of plaintiffs expert witness, Dr. William D. Daniel, was that the fistula or hole which occurred in Mrs. Elliott’s bladder was caused by devascularization of the bladder wall during the hysterectomy, which was Dr. Holmes second operation upon Mrs. Elliott. According to Dr. William D. Daniel, when the first operation, the conization, was done 24 days earlier, tissues became inflamed. At the time of the hysterectomy 25 days later, the tissues had not healed, according to him, and removal of the cervix and uterus caused the bladder to lose its blood supply and develop a hole or rupture. Daniel opined that Dr. Holmes should have waited 28 days, and then the tissues of the cervix, uterus, and bladder would have been sufficiently healed so that no fistula would have resulted.

In this regard, we note the following excerpt of expert Dr. William D. Daniel’s testimony:

Q What is your opinion?
A In my opinion the timing of the surgery, which I have mentioned before, was the cause of the devascularization. The devascularization of that portion of the bladder was then the cause of the necrossis, and the necrossis was the cause for the death of the tissue in that area, and when the tissue had, if you will let me use the term, rotted, or died, then there was a hole.

Argument of Dr. Holmes is that because of the anatomy of the female organs with reference to her bladder, there was no way for the inflammation to reach the bladder. He contends that the pathology report shows conclusively that there was no inflammation, infection or necrossis of the bladder and that therefore the actual proof contradicts, supersedes, and in effect rules out the opinion evidence of the expert Daniel. Gulf Insurance Company v. Provine, 321 So.2d 311 (Miss.1975). Dr. Holmes also relies in his brief upon the fact that he was the only witness who actually treated the plaintiff, and testified that at the time of the second operation he saw no evidence of inflammation, devascularization, nor necrosis. His testimony in this regard is said to be uncontradicted. He says that expert Daniel’s testimony is shown conclusively to be wrong by scientific and other uncontra-dicted evidence and, therefore, was insufficient to make out a case for jury resolution.

Upon this record neither this Court nor any other court could properly hold that interpretation of the pathology report established a scientific principle which would absolutely negate negligence by Dr. Holmes in this case. Perhaps the argument here more properly goes to the evidence’s weight which was for jury resolution, but it did not utterly destroy the charge of negligence based upon the expert’s thesis that the second operation was performed too soon after the conization and thereby “was the cause for the death of tissue in that area” resulting in a hole or fistula which is now the basis of this suit. Accordingly, we find no merit to the present argument.

Second argument advanced is that the lower court erred in allowing Dr. William D. Daniel to testify as a medical expert upon the record showing he was unfamiliar with the manner in which medicine generally, or surgery in particular, is practiced in the South Mississippi area. Dr. Holmes contends that the action of the lower court in allowing Daniel’s expert testimony conflicts with King v. Murphy, 424 So.2d 547 (Miss.1982). He asserts that there was no showing of the expert’s “familiarity with the standard of care in Mississippi or the area reasonably adjacent to the boundaries of Mississippi.”

The expert, whose testimony is challenged here, is Dr. William D. Daniel, an obstetrician-gynecologist licensed in Oklahoma and Georgia, presently practicing in Oklahoma City. He stated he had done more than five hundred hysterectomies either as surgeon or assistant surgeon. Part of his testimony is:

Q But you know that the standard of medical care and the way treatment is rendered in Lumberton is the same as it is in Oklahoma?
A It should be, yes.
Q Do you know whether it is or not?
A The standard of care, as defined from a medical standpoint, and from my understanding from a legal standpoint also, is the same throughout the country.
King v. Murphy held that:
[T]he standard of care by which the acts or omissions of physicians, surgeons or specialists are to be judged shall be that degree of care, skill and diligence practiced by a reasonably careful, skillful, diligent and prudent practitioner in such field of practice or specialty in this state, and for a reasonable distance adjacent to state boundaries. An expert witness who is knowledgeable of, and familiar with, the state-wide standard of care shall not have his testimony excluded on the ground that he does not practice in this state. [Footnote omitted].

424 So.2d at 550.

The record shows that Dr. William D. Daniel’s medical school training was at a medical college in Georgia, after which he practiced at Bethesda Naval Hospital, also at a naval hospital on Guam, and at Hamilton Memorial Hospital in Dalton, Georgia. Nothing in his testimony indicated that he was ever in Lumberton or knowledgeable about hospital facilities there, or of the nature or competency of the pathology lab used in this case. His testimony did not show that he was familiar with or knowledgeable of any standards of medical practice at Lumberton or south Mississippi, or of any particular locality within the state of Mississippi or any adjacent state. Therefore, it would be illogical for us to rule that he was qualified as an expert and competent to give his opinion as to whether Dr. Holmes failed to comply with any local or statewide standards of care in Mississippi. King v. Murphy, supra.

To the contrary, Mrs. Elliott argues that the testimony of Dr. Holmes and his expert witnesses established that the applicable Mississippi standard of care in the performance of hysterectomies was a uniform procedure which clearly and “unalterably established a national standard”. In this regard, she relies upon testimony developed during cross-examination of Dr. Holmes and his experts: Dr. Cole and Dr. Morrison. Pertinent are the following excerpts of the three doctors’ testimony:

MR. OWEN: I believe you told me at one time the performance, the way you performed a total abdominal hysterectomy is pretty much uniform procedure throughout?
DR. HOLMES: I would think it would follow pretty close.

Appellee’s contention is also based upon that of appellant’s expert witness, Dr. Edwin Cole:

MR. OWEN: Now, your testimony in this case has been, of course, you talked about the hysterectomy procedure. That is pretty much the uniform procedure, is it not?
DR. COLE: Yes, sir.

And, also upon the testimony of appellant’s expert, Dr. John Morrison,

MR. OWEN: And I think you said the hysterectomy procedure was performed in an acceptable manner?
DR. MORRISON: That’s correct.
MR. OWEN: It is pretty much a uniform procedure, is it not?
DR. MORRISON: Yes, it is.

Appellee’s thesis, however, is not supported by the above testimony. The three doctors testified that the procedures used in a hysterectomy operation were somewhat uniform. The three did not relate their opinions as to the standard of care involved in a hysterectomy operation to the Lumberton locality, or the state of Mississippi, or areas immediately adjacent thereto. Although the above testimony of Doctors Holmes, Cole and Morrison indicates that the procedure, the techniques used, is a somewhat uniform procedure, it does not speak to any standard of care in performing or carrying out that procedure.. Substance of expert Daniel’s testimony was that according to the standard in the areas where he had practiced, four weeks should elapse following a D & C and conization procedure before performance of a hysterectomy. To the contrary, Dr. Holmes, Dr. Cole, and Dr. Morrison stated that according to the Lumberton area standard no such waiting period was applicable. Thus, it does not follow from the testimony that a uniform operative procedure establishes a national standard of care, because clearly the applicable standard of the Lumberton area differed from the standard known to expert Daniel.

Moreover, even if the uniform operative procedure established a national standard, the test of King v. Murphy has not been met. Reiterating, King held that an expert who is knowledgeable of, or familiar with, the state-wide standard of care shall be allowed to testify as an expert. Thus, even if a national standard exists, it still must be shown that the applicable standard is the same. In order to do this, the expert must have knowledge of the state-wide or local or similar locality standard. In the instant case, expert Dr. Daniel was not shown to have the requisite knowledge of, or familiarity with, the state-wide or Lum-berton area or similar locality standard of care,

Q But you know that the standard of medical care and the way treatment is rendered in Lumberton is the same as it is in Oklahoma?
A It should be, yes.
Q Do you know whether it is or not?
A The standard of care, as defined from a medical standpoint, and from my understanding from a legal standpoint also, is the same throughout the country.
Q You have been in hospitals, I believe, in about six different locations?
A Yes.
Q And in your opinion it is the same everywhere because of those six you have been into?
A In my experience, yes. (emphasis added), (footnote added).

The extent to which Dr. Daniel is unfamiliar with Mississippi or Lumberton locality practice is also borne out by the facts. He had never been to Lumberton, Mississippi; did not know how many doctors were in the area; did not know the available medical facilities in the area; and has never examined Mrs. Elliott. This situation is analogous to King, which held that it was error to allow an expert to testify who,

... has never practiced in Mississippi, and has never examined or treated a patient in Mississippi, except he examined Murphy the night before trial. He has never been in the Tishomingo County Hospital or its emergency room, and has never consulted with any physician in Tishomingo County. He has no knowledge of the extent of the blood bank in the Tishomingo County Hospital, and does not know the manner in which patients have been treated in Tishomingo County, other than appellant, and has no knowledge of how other lacerations have been repaired in Tishomingo County.

424 So.2d at 550-51.

Circumstances of the instant case and King are distinguishable from those of Pharr v. Anderson, 436 So.2d 1357 (Miss.1983). In King and the instant case, the expert has had no contact with Mississippi, outside his participation in a malpractice trial. In Pharr, the expert had spent approximately 30 years in Mississippi, including a term as chief of surgery at the Veterans Administration Hospital in Jackson. And, although expert testimony' is not to be "excluded on the ground that he does not practice in this state”, the expert must nevertheless have some knowledge of, or familiarity with, the state-wide standard. Inasmuch as Dr. Daniel had no contact with the state, and could only testify that the national standard and the Mississippi standard “should” be or from his “understanding” was similar, it cannot be said that he was sufficiently familiar with the Mississippi standard of care. See also Hall v. Hilbun (No. 53,784 decided September 28, 1983, not yet reported).

Close study and analysis of the testimony of Dr. Holmes, Dr. Cole and Dr. Morrison quoted above, does not establish that the local standard of the Lumberton area was and “is the same as the national standard” argued by Mrs. Elliott.

In King, we were called upon to determine the competency as an expert of the witness Dr. Richard Gardner, whose testimony conflicted sharply with that of the other side. The facts showed that Dr. Gardner was a surgeon from Fort Myers, Florida. He had received his education in Boston and New York and was chief of orthopedic surgery at a military hospital in Illinois before opening a private practice in Boston and then in Florida. Dr. Gardner had never practiced in Mississippi, never treated a patient in Mississippi, had never been to the hospital where the claim arose, and was not familiar with how patients were treated in Tishomingo County (where the claim arose). Under these circumstances, King held that “Dr. Gardner did not qualify under the locality rule, the similar locality rule, or the new rule.” King v. Murphy, supra, at page 551.

In addition to the King case, we recently had another opportunity to interpret the competency of expert witnesses under the standard as expanded in King. In Pharr v. Anderson, supra, our task was to rule upon the competency of a Dr. John Cock-rell as an expert witness. The evidence showed that Cockrell received his education in New York and served his internship and residency there as well. He had spent several years there and in Texas before moving to Mississippi. In Mississippi, he served time as chief of surgery of the Veterans Administration Hospital, as well as a pathology instructor at the University Hospital. He was asked to testify as to the standard of care with regard to family medicine, though he had not been involved in such a practice. Inasmuch as Dr. Cock-rell testified that anyone who knows the standard of care with reference to surgery and internal medicine would also know of the standard of care in general with reference to family practice, the Court held that the trial judge did not abuse his discretion in holding Dr. Cockrell qualified.

Applying the rationale of King and Pharr to the instant case, we cannot say that the trial court correctly allowed Dr. Daniel to testify as an expert. In the instant case, like the situation in King, Dr. Daniel’s medical training and practice was conducted entirely outside the state of Mississippi. Furthermore, it appears from the record that the nearest Dr. Daniel’s experiences placed him to Mississippi was Dalton, Georgia. However, this fact alone would not be an adequate basis for excluding Dr. Daniel’s testimony as an expert had the proof established that he “is knowledgeable of, and familiar with, the state-wide standard of care ... ”. King v. Murphy, supra, at 550. In this regard, Mrs. Elliott urges that the standard of care in the performance óf the hysterectomy was a uniform procedure which clearly and unalterably established a national standard. However, the proof is just not sufficient to support her argument.

We must conclude that appellee, Mrs. Elliott, did not meet her burden of establishing Dr. William D. Daniel’s qualifications as an expert and, accordingly, allowing his testimony to go to the jury was an abuse of the trial judge’s discretion requiring reversal.

Third argument advanced is the contention that the jury holding Dr. Holmes to have been negligent “is so overwhelmingly contrary to the evidence in this case as to mandate a new trial on all issues.” Dr. Holmes takes the position that Mrs. Elliott’s thesis is that performing the hysterectomy 25 days instead of 28 days after the conization makes out a “very weak case of negligence, if any at all, for the plaintiff.” It is true that Dr. Holmes testified that he had never heard that proper medical practice dictated his waiting for any period of time after the conization before doing a hysterectomy. He stated that he had done 360 to 370 hysterectomies in his medical career.

Testifying in behalf of Dr. Holmes was Dr. Edwin Cole, a general surgeon of Rich-ton, Mississippi, who in substance stated that generally a hysterectomy should be done as soon as possible upon discovery of a pre-cancerous condition like Mrs. Elliott had. He stated that he does hysterectomies from two to seven days after a conization procedure. Likewise, Dr. Morrison, of the University Medical Center department of obstetrics and gynecological surgery, testified that a short waiting period was satisfactory.

To the contrary, expert Dr. Daniel stated that Dr. Holmes deviated from the proper standard of care by first performing the hysterectomy in too short a timeframe after the September 2, 1977, conization and did not allow adequate time for healing of tissue affected by the D & C and conization. Secondly, Daniel’s opinion was that Dr. Holmes deviated from the proper standard of care in that the vesicovaginal fistula suffered by Mrs. Elliott was a result of necrosis or tissue death of the bladder resulting from the devascularization or compromise of the blood supply to the base of the bladder during the hysterectomy. This conclusion was further supported by Dr. Daniel’s testimony that this devascularization and necrosis constituted a deviation from the standard of care. We think the evidence considered in its totality was sufficient to carry the case to the jury.

Fourth argument is that the lower court erred in restricting Dr. Holmes’ “counsel from cross examining the plaintiff’s medical expert relative to the transcript of proceedings of Hamilton Memorial Hospital, Dalton, Georgia, investigating the expert’s qualifications as a physician at that institution, including testimony given by him under oath.” Several months prior to the trial Mrs. Elliott answered Dr. Holmes’ interrogatories in which she identified Dr. William D. Daniel as her expert who would testify for her. Subsequently she supplemented her answers giving details of Dr. Daniel’s anticipated testimony. Then on October 26, 1981, Dr. Holmes notified Mrs. Elliott that James C. Hazel, administrator/director of Hamilton Memorial Hospital in Dalton, Georgia, would be deposed on October 29, 1981, which date was three working days prior to trial. Then Mrs. Elliott moved for a protective order but her motion was overruled by the lower court. Mrs. Elliott, prior to the trial, filed her motion in limine requesting the trial court by order to restrict Dr. Holmes from referring to Mr. Hazel’s deposition, contending among other things that the deposition contained hearsay statements and opinions of third parties other than the litigants. Upon that basis, the lower court ruled that the deposition was inadmissible and sustained Mrs. Elliott’s motion in li-mine.

Substance of the deposition in Dalton, Georgia, was what happened at a hearing at the hospital there concerning an attempt to discharge Dr. Daniel from the hospital staff. The deposition contained derogatory matters showing that Dr. Daniel at one time had been on probation while a hospital resident, and that he had “attached himself to concepts not uniformly accepted by his peers” and was “rigid and unyielding.” Another item contained in the deposition was the allegation that Dr. Daniel had “used hypnosis in treatment of his patients.” Also the deposition contained information to the effect that while Dr. Daniel was on the staff of Hamilton Memorial Hospital he performed only 55 operations which included only 10 surgeries. It was this type information which Dr. Holmes sought to have introduced at the trial against Dr. Daniel to show that Daniel was incompetent as an expert. Alternatively appellant, Dr. Holmes, sought an opportunity to question Dr. Daniel concerning the opinions and statements of third parties who challenged him at the hospital in Georgia. We note that the appellant, Dr. Holmes, in his brief, cites no authority whatever in support of his contention.

To have permitted introduction of the testimony complained of to permit Dr. Holmes’ counsel to cross-examine Dr. Daniel about his relationship with the hospital in Georgia would have permitted introduction of the same without allowing the expert to cross-examine these people whose statements and whatever were contained in the file or deposition. In this posture of the case on this record we are unable to say that the trial judge abused his broad discretion or that reversible error occurred in this regard.

Fifth argument asserted by Dr. Holmes is that instruction P-3 is unsupported by any evidence in the record and erroneously allowed the jury to consider the propriety of Dr. Holmes’ performing “the bladder irrigation” upon Mrs. Elliott. The instruction tells the jury “that if you believe from a preponderance of the evidence in this case:

3) That during the bladder irrigation test the Defendant used a zephiran solution that was not sufficiently diluted and;
5) In performing the bladder irrigation test the Defendant failed to possess the requisite skill to perform such a bladder irrigation test and failed to use the requisite care in utilizing the zephiran solution and; ....

P-3 contained other elements that are not complained of or challenged and, therefore, they are not quoted here.

Dr. Holmes’ argument is that the quoted excerpts from the instruction are “fatal portions” because no evidence was introduced that the zephiran solution was not sufficiently diluted. Reversal being required on another ground, suffice it to say here that upon retrial care will be exercised to see that each jury instruction has eviden-tiary basis in the record.

Sixth argument asserted by Dr. Holmes is that the lower court erred in excusing six jurors at plaintiff Mrs. Elliott’s request. Review of the voir dire shows that those whose removal is challenged had some employment or close friendship ties with counsel for Dr. Holmes or his family. Context of this proposition is that the cause was removed from Lamar County, Mrs. Elliott’s place of residence, to Stone County, Dr. Holmes’ place of residence, at his request. Obviously in ruling on challenges to prospective jurors, the experienced trial judge was trying to see to it that both litigants would be able to present their case to fair and impartial factfinders. In view of the broad discretion vested in trial judges as to jury selection proceedings, we cannot say there was error as to jury selection process used below.

Seventh and final argument of Dr. Holmes is the “grossly excessive” amount awarded Mrs. Elliott. This issue need not be resolved here because reversal is required as previously stated herein.

REVERSED AND REMANDED.

PATTERSON, C.J., WALKER, P.J., and ROY NOBLE LEE, DAN M. LEE and PRATHER, JJ., concur.

HAWKINS, BOWLING and ROBERTSON, JJ., specially concur.

HAWKINS, Justice,

specially concurring:

On the petition for rehearing in King v. Murphy, 424 So.2d 547 at 551 (Miss.1982), I was in favor of abolishing the “locality”, “similar locality” rules and treat the question of the competency of the testimony of physicians the same as any other expert.

In the recent case of Hall v. Hilbun (No. 53,784, decided November 9, 1983, and not yet reported), I again expressed my views on this holding.

As I stated in King v. Murphy, I would abolish the locality rule prospectively to any decisions now on appeal to this Court. That would mean I would vote to reverse this case, but hold the testimony of the physicians competent in a future trial.

In view of this Court’s holding in King v. Murphy, reaffirmed in Hall v. Hilbun, I regretfully concur in reversing.

BOWLING and ROBERTSON, JJ., join this opinion.

      . Mrs. Elliott filed suit in the Circuit Court of Lamar County, but upon Dr. Holmes' motion venue was changed to Stone County, wherein he resides.

      . The six hospitals to which Dr. Daniel referred were in Bethesda, Maryland; Guam; Oakland, California; Annapolis, Maryland; Dalton, Georgia; and Oklahoma City, Oklahoma.

      . Inasmuch as the trial was conducted under the locality rule, the proof adduced at trial as to knowledge of the standard of care was centered more upon the Lumberton area rather than the entire state.

      . "The question of whether the proffered witness has obtained the required degree of specialized knowledge within a particular field is a matter within the sound discretion of the trial court, and unless there is an abuse of that discretion, his determination will not be disturbed on appeal.” Early-Gary, Inc. v. Walters, 294 So.2d 181, 185 (Miss.1974).