source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Herman Lee WILLIAMS a/k/a Herman Williams a/k/a Stank, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-KA-00270-COA.
    Court of Appeals of Mississippi.
    Oct. 14, 2008.
    Rehearing Denied Feb. 3, 2009.
    Certiorari Denied March 26, 2009.

      Lee Davis Thames, Jackson, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. A Warren County grand jury indicted Herman Lee Williams in October 2005 for possession of cocaine, more than ten grams, but less than thirty grams. After a jury trial on September 5-6, 2006, Williams was convicted of the drug possession charge. He was sentenced to serve twenty-four years in the custody of the Mississippi Department of Corrections (MDOC), with the sentence to be served in full without parole or probation. Williams now appeals his conviction, alleging numerous errors in the trial court, which he believes warrant a new trial. Finding no reversible error, we affirm.

FACTS

¶ 2. On July 10, 2005, Vicksburg Police Officer Jeremy Brassard was patrolling the area of Vicksburg that includes Navy Circle, a scenic lookout area known as the Overlook. The Overlook is closed after dark, and there are signs posted to notify the public of the closure. As Officer Bras-sard patrolled the area, he noticed a couple of cars parked at the Overlook. As he approached, one car drove away, but the other car stayed. Officer Brassard used his spotlight to look into the car and asked the driver for his information. The driver, Williams, produced a learner’s permit and the title and insurance for the vehicle. He did not have a driver’s license.

¶ 3. Officer Brassard asked Williams to exit the car. Upon exiting the car, Williams ran down the hill, away from the officer. Officer Brassard noticed Williams reach into his pocket as he ran; Williams pulled out a cellophane bag, which he threw to the ground. Officer Brassard was able to catch up to Williams and search him. Other officers subsequently arrived at the scene and assisted Officer Brassard in his search for the cellophane bag. The bag contained a substance that was later determined to be cocaine. Williams was arrested.

¶ 4. Upon his arrest, Williams was taken to the Warren County jail. The Mississippi Department of Corrections (MDOC) put a hold on Williams due to an earned-release-supervision violation. Williams was released from the Warren County jail and transported by the MDOC to the Central Mississippi Correctional Facility in Pearl. He was transferred on August 16, 2005, to the South Mississippi Correctional Institution in Leaksville. Williams was indicted on October 19, 2005, by a Warren County grand jury for possession of cocaine, more than ten grams, but less than thirty grams, which is the charge before this Court. The Warren County district attorney was informed that Williams was in the custody of the MDOC on an unrelated charge. On October 31, 2005, the Warren County District Attorney’s Office filed a detainer to obtain custody of Williams for the possession charge upon his release from the MDOC. Williams was subsequently released on February 28, 2006, to Warren County authorities. Williams was then released on bond on March 1, 2006, for the current possession charge. On June 15, 2006, Williams was arrested on a separate charge for the sale of cocaine, for which he was denied bond. He was arraigned on July 21, 2006, on the possession charge before this Court. At his arraignment, Williams asserted his right to a speedy trial for the first time. On August 10, 2006, he filed a motion to dismiss the possession charge, alleging that he was denied his right to a speedy trial. On September 18, 2006, his trial began.

¶ 5. On appeal, Williams alleges ten separate errors. Because they are similar, Williams’s final four issues have been combined. Williams argues (1) he was denied his right to a speedy trial; (2) the state court did not have jurisdiction; (3) the sentence is unconstitutional and disproportionate; (4) the trial court improperly found that Williams opened the door on his prior convictions; (5) he was denied advice of counsel and due process; (6) the finding of guilt was against the overwhelming weight of the credible evidence and/or is contrary to the law or the right of the evidence; and (7) the trial court erred in granting and denying certain jury instructions and in redacting portions of defense instructions.

¶ 6. Finding no reversible error, we affirm the trial court.

DISCUSSION

I. Whether Williams was denied his right to a speedy trial.

¶ 7. Williams claims that because he was not tried for the possession charge until fourteen months after his arrest, he was denied a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution, as well as Article 3, section 26 of the Mississippi Constitution.

¶ 8. Our standard of review when analyzing a trial court’s findings regarding a speedy trial violation is as follows:

The Mississippi Supreme Court has stated that speedy trial claims necessarily entail questions of fact regarding “whether the trial delay rose from good cause.” DeLoach v. State, 722 So.2d 512(¶ 12) (Miss.1998). This Court must uphold the trial court’s findings on the issue of speedy trial where supported by “substantial, credible evidence; [but] if no probative evidence supports the trial court’s findings ...,” our duty is to reverse. Ross v. State, 605 So.2d 17, 21 (Miss.1992). As in other cases in which the trial court must make factual determinations, our Court reviews those findings using the “clearly erroneous” standard. Stokes v. State, 548 So.2d 118, 122 (Miss.1989).

Moore v. State, 837 So.2d 794, 797 (Miss. Ct.App.2003).

¶ 9. A defendant’s right to a speedy trial attaches the day he is arrested. Thorson v. State, 653 So.2d 876, 889 (Miss.1994) (citing Spencer v. State, 592 So.2d 1382, 1387 (Miss.1991); Handley v. State, 574 So.2d 671, 674 (Miss.1990); Smith v. State, 550 So.2d 406, 408 (Miss. 1989)). Thus, Williams’s right to a speedy trial attached on July 10, 2005. To determine whether a defendant’s constitutional right to a speedy trial has been violated, we must consider the four factors set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972):(1) the length of the delay, (2) the reason for the delay, (3) the defendant’s timely assertion of his right to a speedy trial, and (4) the resulting prejudice to the defendant. Thorson, 653 So.2d at 890 (citing Barker, 407 U.S. at 530, 92 S.Ct. 2182)). Ultimately, “no one factor is dispositive. The totality of the circumstances must be considered.” Fisher v. State, 532 So.2d 992, 995 (Miss.1988) (citation omitted).

a.Length of the Delay

¶ 10. The length of the delay triggers analysis of the other three factors, and the delay must be “presumptively prejudicial” to the defendant for the analysis to continue beyond this factor. Atterberry v. State, 667 So.2d 622, 626 (Miss. 1995) (citations omitted). The trial in Williams’s case did not begin until fourteen months after his arrest. The Mississippi Supreme Court has held that in non-capital cases, delays of eight months or more are presumptively prejudicial. Thorson, 653 So.2d at 890 (citing Spencer, 592 So.2d at 1387). Because Williams’s delay of fourteen months is considered presumptively prejudicial, our analysis must continue to the other Barker factors.

b. Reason for the Delay

¶ 11. The record is silent on the reason for the delay in bringing Williams to trial. The defendant was in custody for most of the time between his arrest and trial. He served some time after arrest for an earned-release-supervision violation. After that, he was jailed after being arrested on a separate drug charge while out on bond.

¶ 12. The trial court found that the delay was caused by the defendant because he was in the State’s custody on other charges between arrest and trial; therefore, the trial court did not count most of the time that the defendant was in custody it its analysis of the speedy trial violation. The Mississippi Supreme Court has held “[t]he mere fact that the defendant is in custody for another crime is generally not a sufficient reason for delaying a trial.” Fisher, 532 So.2d at 995. Because there is no reason given by the State for the delay in bringing Williams to trial, this factor should be weighed against the State and in favor of Williams. Brengettcy v. State, 794 So.2d 987, 993(¶ 13) (Miss.2001) (citation omitted).

c. Defendant’s Assertion of Right to Speedy Trial

¶ 13. Williams did assert his right to a speedy trial at his arraignment on July 21, 2006. His trial was set at that time and commenced within two months of his asserting the right. Williams asserts that it is not the duty of the accused to bring himself to trial. While it is not the duty of the accused to bring himself to trial, the analysis of this prong of the Barker test is weighed more heavily in his favor if he has demanded a speedy trial. Brengettcy, 794 So.2d at 994(1117) (quoting Jaco v. State, 574 So.2d 625, 632 (Miss.1990)).

¶ 14. Williams waited more than one year from the time of his arrest to assert his right to a speedy trial. He asserted the right to a speedy trial on July 21, 2006, at his arraignment. On August 10, 2006,. Williams filed a motion to dismiss for denial of a speedy trial, which was denied. His trial began on September 18, 2006, within two months of his asserting his right to speedy trial.

¶ 15. Our supreme court has, in several cases, weighed this factor against an accused when he has waited a significant amount of time before demanding a speedy trial. See Wall v. State, 718 So.2d 1107, 1113(¶ 25) (Miss.1998) (holding that this factor weighed against the accused whose assertion of the right to speedy trial did not come until two months before his trial began). In Noe v. State, 616 So.2d 298, 801 (Miss.1993), our supreme court held that the defendant’s failure to assert his right to a speedy trial until nearly one year after his arrest weighed heavily against him on this prong of the Barker test.

¶ 16. The State argues that because Williams waited approximately eleven months after his arrest to assert his right to a speedy trial, this factor should be weighed against him. Williams was indicted in October 2005, but was not served a copy of the indictment until June 14, 2006. Regardless of when he was indicted, Williams had notice that he had been arrested on the charges. In Moore, this Court weighed this factor against a defendant who had waited approximately four years from the date of his arrest to demand a speedy trial even though he had not been formally indicted until three months before he made the demand for a speedy trial. Moore, 837 So.2d at 798-99 (¶¶ 10-11). The Court in Moore reasoned as follows for weighing this factor against the defendant:

If an unindicted suspect who has been the subject of a lawful arrest has a constitutional right to a speedy resolution of the pending charges against him, then we have little doubt in concluding that the suspect may demand that the State proceed with reasonable dispatch to resolve the matter. Whether, in the absence of an existing circuit court criminal proceeding, that demand may be advanced by more informal means, e.g., a letter to the prosecuting attorney, is a matter we need not reach in this instance since Moore made no demand, formal or informal, during the long period between his arrest and indictment that the State proceed by some means to speedily dispose of the pending criminal matter. It appears on this record that Moore was content to remain free on bond without insisting that the pending charges against him be resolved. This is, perhaps, understandable in that Moore may have believed that, with the passing of time, the likelihood of an indictment grew less and less certain. Whether that was, in fact, Moore’s thinking on the matter is certainly not clear, but it is certain that it was within his power to make his position definitely known by affirmatively stating it for the record in some manner that would be preserved for subsequent consideration by this Court. In the absence of any such demand, we think that Moore’s prolonged failure to demand a speedy resolution of the case must be weighed against his entitlement to relief.

Id. at (¶ 11). Williams was certainly aware of the possibility that charges would be brought against him as a result of his arrest. Williams did not seek any resolution of the charges until after he was served with the indictment in June 2006. Accordingly, we weigh this factor against Williams and in favor of the State.

d. Prejudice to the Defendant

¶ 17. The defendant argues that he was prejudiced by the delay between his arrest and trial because certain witnesses were no longer available to him for trial testimony and because he was imprisoned for over ten months of the thirteen-month delay. It is not necessary for Williams to make an affirmative showing of prejudice to show that his constitutional right to a speedy trial has been violated. Flores v. State, 574 So.2d 1314, 1323 (Miss. 1990). The State has to show a lack of prejudice to the defendant in order to prevail on this factor. See Jasso v. State, 655 So.2d 30, 35 (Miss.1995).

¶ 18. The right to a speedy trial is designed to protect three interests: (1) “to prevent oppressive pretrial incarceration”; (2) “to minimize anxiety and concerns of the accused”; and (3) “to limit the possibility that the defense will be impaired.” State v. Magnusen, 646 So.2d 1275, 1284 (Miss.1994) (quoting Barker, 407 U.S. at 532, 92 S.Ct. 2182)). Williams was incarcerated for ten months of the thirteen-month delay. However, he was not incarcerated on the drug possession charge at issue. After his initial arrest for drug possession, Williams was transferred to the custody of the Mississippi Department of Corrections, which had placed a hold on Williams due to an earned-release-supervision violation. More than seven months later, Williams was released back into the custody of Warren County officials. He was released three days after that on bond for the drug possession charge. Less than five months later, Williams was arrested on a separate charge of sale of cocaine and denied bond; he has been jailed since that time. The State cites Brengettcy, 794 So.2d at 995(¶ 20) for the proposition that because Williams was already jailed on other charges, “any prejudice that could have arisen merely from interference with his liberty is alleviated.... ” See also Winder v. State, 640 So.2d 893, 895 (Miss.1994) (holding that when a defendant is already serving a jail sentence or is in jail on an unrelated matter, he suffers no prejudice based solely on the continued incarceration). We find no oppressive pretrial incarceration based on Williams being jailed on other charges during the delay between his arrest and trial.

¶ 19. The second interest to consider is whether the delay between arrest and trial caused Williams any anxiety or concern. Williams has not argued that he suffered any anxiety or concern as a result of the delay between his arrest and trial.

¶20. The third interest protected by the right to a speedy trial, minimizing the possibility that the defense will be impaired, is the most serious consideration. Woodson v. State, 845 So.2d 740, 743(¶ 17) (Miss.Ct.App.2003) (quoting Sharp v. State, 786 So.2d 372, 381(¶ 19) (Miss.2001)). Williams claims that his incarceration hampered any effort to monitor and keep in contact with two witnesses. Again, Williams was not being held in jail on the drug possession charge. He was finishing a sentence with the MDOC, and then he was held without bond on another drug charge. The witnesses he tried to call in his defense were unavailable. Williams asserts that their testimony would have shown that the officer was mistaken as to how many cars were present at the Overlook that night and that they did not see Williams throw the drugs. However, Williams was able to call two witnesses, Renee White and Lash Rogers, who did testify on his behalf that there were more cars there that night, and they did not see Williams throw the drugs. Further, Williams testified on his own behalf that there were other cars present and that he did not throw the drugs. As the State argues, any other testimony would have been cumulative. See Woodson, 845 So.2d at 743(¶ 18). Because there has been no actual prejudice to Williams as a result of the delay between arrest and trial, this factor favors the State.

¶ 21. Balancing the factors, we find that the analysis of the Barker factors favors the State. Therefore, this issue is without merit.

II. Whether the trial court had jurisdiction.

¶ 22. In his second assignment of error, Williams contends that the State lacked jurisdiction to prosecute the charge against him. Williams was arrested on Navy Circle, which is property owned by the United States. Essentially, Williams argues that for the State to have jurisdiction, either the United States had to convey concurrent jurisdiction to the State, or the State had to retain concurrent jurisdiction. Williams claims that the State did not retain concurrent jurisdiction at the time of the conveyance because the property was conveyed to the United States by private citizens, not by the State. Williams provided copies of deeds on record in Warren County to show that the land was acquired by the United States in 1899 from private individuals, rather than from the State of Mississippi. Williams argues that the United States did not convey concurrent jurisdiction to the State, and the State never retained concurrent jurisdiction. Therefore, he argues, the State did not have jurisdiction to prosecute his case. Williams’s argument fails.

¶ 23. Williams claims that the statutes relied on by the State to prove jurisdiction are inapplicable in his case because they were not in effect in 1899 when the conveyances were made. In its brief to this Court, the State relied on Mississippi Code Annotated sections 3-5-3 and 3-5-9 (Rev. 2002) and sections 2395 and 2396 of the Mississippi Code of 1906. Language similar to that found in section 3-5-9 can be found in Mississippi Code section 2178 (1892), which was in effect when the land was conveyed to the United States by private citizens. Section 2178 provides the following:

The concession of jurisdiction to the United States over any part of the territory of the state, heretofore or hereafter made, shall not prevent the execution on such land of any process, civil or criminal, under the authority of this state, nor prevent the laws of this state from operating over such lands; saving to the United States security to its property within the limits of the jurisdiction ceded, and exemption of the same, and of such land from taxation under the authority of this state during the continuance of the cession.

¶ 24. The United States Supreme Court held in Surplus Trading Co. v. Cook, 281 U.S. 647, 650, 50 S.Ct. 455, 74 L.Ed. 1091 (1930), that ownership of land by the United States does not automatically give the United States exclusive jurisdiction. Moreover, the Supreme Court stated the following:

It is not unusual for the United States to own within a State lands which are set apart and used for public purposes. Such ownership and use without more do not withdraw the lands from the jurisdiction of the State. On the contrary, the lands remain part of her territory and within the operation of her laws, save that the latter cannot affect the title of the United States or embarrass it in using the lands or interfere with its right of disposal.

Id. (emphasis added). Furthermore, the United States Supreme Court has stated: “We made clear that ‘the State is free to enforce its criminal and civil laws’ on federal land so long as those laws do not conflict with federal law.” California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 580, 107 S.Ct. 1419, 94 L.Ed.2d 577 (1987) (quoting Kleppe v. New Mexico, 426 U.S. 529, 543, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976)). The State had jurisdiction to arrest Williams and bring him to trial. This issue is without merit.

III. Whether the sentence is unconstitutional and disproportionate.

¶ 25. Williams’s third assignment of error alleges that his sentence is unconstitutional and disproportionate. Williams was convicted at trial of possession of cocaine having a weight of more than ten grams but less than thirty grams, more precisely, 10.7 grams. Williams has two prior felony convictions, and he was sentenced as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). Under this statute, he was sentenced to serve twenty-four years in prison without eligibility for probation or parole. Williams argues that he is simply another casualty of the losing war on drugs and that the twenty-four-year sentence is cruel and unusual. We disagree.

¶ 26. Our standard of review for a trial court’s imposition of a sentence is abuse of discretion. “Sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Nichols v. State, 826 So.2d 1288, 1290(¶ 10) (Miss.2002). Though Williams’s sentence may seem harsh in light of sentences received by others convicted of drug possession, his sentence fits within the statutory maximum. Therefore, absent an abuse of discretion, the sentence is beyond the reach of our appellate review.

¶ 27. Williams was sentenced under Mississippi Code Annotated section 99-19-81, which states as follows:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

(Emphasis added).

¶ 28. Williams argues that his sentence is disproportionate and, thus, unconstitutional based on the United States Supreme Court’s holding in Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), which established a test to determine whether a sentence is disproportionate and, thus, cruel and unusual. The Supreme Court set forth three factors to consider when analyzing a sentence for disproportionality, which are: “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Id.

¶ 29. The Supreme Court overruled its holding in Solem in Harmelin v. Michigan, 501 U.S. 957, 965, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), to the extent that So-lem found any proportionality guarantee in the Eighth Amendment. Kelly v. State, 947 So.2d 1002, 1004(115) (Miss.Ct.App. 2006). This Court has explained the effect of the Supreme Court’s rulings in Solem and Harmelin, stating: “In light of Hanmelin, it appears that Solem is to apply only when a threshold comparison of the crime committed to the sentence imposed leads to an inference of ‘gross dis-proportionality.’ ” Kelly, 947 So.2d at 1004(¶ 5).

¶ 30. Williams also cites to Clowers v. State, 522 So.2d 762, 763-65 (Miss.1988), a case in which the Mississippi Supreme Court affirmed a trial judge’s decision to depart from the mandatory sentence required for a habitual offender convicted of forgery. Id. The trial judge felt that the mandatory sentence in that case was disproportionate to the crime. Id. However, this Court has previously held with respect to the holding in Clowers, that “Clowers is ‘not the rule, but the exception.’ ” Oby v. State, 827 So.2d 731, 734(¶ 9) (Miss.Ct.App. 2002) (citing Bell v. State, 769 So.2d 247, 252(¶ 12) (Miss.Ct.App.2000)).

¶ 31. Williams’s sentence does not lead this Court to an inference of gross dispro-portionality; therefore, no proportionality analysis is necessary. Furthermore, our supreme court has upheld harsher sentences for drug possession. See Wall v. State, 718 So.2d 1107, 1114-15(¶ 30) (Miss. 1998) (upholding a sentence of life without parole for possession of a controlled substance for a habitual offender). See also Tate v. State, 946 So.2d 376, 386-87 (¶¶ 32-34) (Miss.Ct.App.2006) (upholding a sixty-year sentence for possession of marijuana where defendant was sentenced under Mississippi Code Annotated section 41-29-147 (Rev.2005) and as a habitual offender under section 99-19-81).

¶32. This Court has explained that “[t]he correct proportionality analysis for a habitual offender sentence does not consider the present offense alone, but within the habitual offender statute.” Oby, 827 So.2d at 735(¶ 12) (citing Bell, 769 So.2d at 251(¶ 9)). Williams was convicted of violating Mississippi Code Annotated section 41-29-139(c)(l)(D) (Rev.2005) for which the maximum term of incarceration is twenty-four years. Williams was properly sentenced to serve twenty-four years without possibility of parole or probation under section 99-19-81. This issue is without merit.

IV. Whether the trial court improperly found that Williams had opened the door on his prior convictions.

¶ 33. Prior to the trial beginning, the Court granted Williams’s motion to prevent the State from mentioning Williams’s prior criminal record during the trial in the presence of the jury. The trial court added that the State could bring in the prior criminal history if Williams were to “open the door” to his criminal history by somehow bringing his history into question. While being questioned by his own counsel, Williams testified: “I’ve been working on a job for 15 years. I don’t smoke drugs.” The State argued to the trial court that this statement opened the door on Williams’s criminal record, and the trial court granted the State permission to cross-examine Williams about the prior convictions.

¶ 34. “The standard of review for this Court regarding the admissibility of evidence is abuse of discretion of the trial court and reversal may be had only where that discretion has been abused. Unless the trial judge’s discretion is so abused as to be prejudicial to the accused, an appellate court will not reverse. However, the discretion of the trial judge must be exercised within the boundaries of the Mississippi Rules of Evidence.” Stubbs v. State, 878 So.2d 130, 134(¶ 7) (Miss.Ct.App. 2004) (internal citations omitted).

¶ 35. The supreme court has explained how evidence of prior convictions may be admitted into evidence as follows:

Where an accused, on direct examination, seeks to exculpate himself, such testimony is subject to normal impeachment via cross-examination, and this is so though it would bring out that the accused may have committed anóther crime. Normal impeachment applies when the defendant, on direct examination, makes blanket statements which open the door for impeachment. Once this door to the defendant/witness’ criminal record has been opened, the evidence used by the State in response is more like rebuttal evidence than impeachment.

Johnson v. State, 666 So.2d 499, 503 (Miss. 1995) (internal quotations and citations omitted).

¶ 36. Williams argues that because he was charged with possession of cocaine, and because cocaine is normally snorted and not smoked, his statement could not be considered as a blanket response denying drug use in general, just a denial that he had smoked drugs. We do not see any distinction. It was within the trial judge’s discretion to allow the cross-examination regarding the prior convictions, because Williams sufficiently opened the door by claiming that he did not “smoke drugs.”

¶37. Williams argues further that the trial judge did not weigh the probative value of the evidence against the prejudicial effect of the admission under Mississippi Rule of Evidence 403, which states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

However, the trial judge did weigh the probative value of the prior convictions against the prejudicial effect. Outside the presence of the jury, the trial court ruled on the State’s motion to bring in the prior convictions:

THE COURT: Motion for mistrial overruled. The Court finds that defendant opened the door, that he’s made that an issue, and whether — although the Court previously ruled — the D.A. said he wasn’t going to even get into those prior convictions unless he opened the door the Court so ruled, and the Court has ruled that he has now, on his own, opened the door in response to a question. So....
BY THE STATE: And is that after a 403 analysis, Your Honor?
THE COURT: Yes. The Court is weighing the prejudicial effect. He’s now made it an issue, and the prejudicial effect will not outweigh the probative value of that comment. It goes to the whole basis of his credibility. He’s made it an issue.

The trial judge did not abuse his discretion in finding that Williams opened the door to his prior convictions. This issue is without merit.

V. Whether Williams was denied advice of counsel and due process.

¶38. Williams next argues that after the judge ruled that Williams had, in fact, opened the door to his prior convictions, he should have been allowed to consult with his attorney before cross-examination. Williams claims the trial judge’s refusal to allow him to speak with counsel denied him advice of counsel and due process. Williams claims that he needed to speak with counsel to discuss the ramifications of and to prepare for the questions concerning his prior convictions which Williams believed he would not be questioned about. Williams admits that he is unable to find a case on point wherein a criminal defendant was granted the right to confer with counsel while on cross-examination. Williams cites Geders v. United States, 425 U.S. 80, 91-92, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), where the Supreme Court held that preventing a defendant from consulting with his attorney during an overnight recess violated the defendant’s Sixth Amendment rights. That case dealt with an overnight recess, not a short break between direct and cross-examination. Further, the Supreme Court limited its holding, stating, “We need not reach, and we do not deal with, limitations imposed in other circumstances.” Id. at 91, 96 S.Ct. 1330.

¶ 39. The Mississippi Supreme Court has addressed the issue, holding that “[a] defendant and his attorney do not have a right to consult indiscriminately without leave of the court as one must adhere to orderly courtroom decorum and procedure.” Simmons v. State, 805 So.2d 452, 486(¶ 84) (Miss.2001) (citing Pendergraft v. State, 191 So.2d 830, 834 n. 1 (Miss.1966)). The State argues, more convincingly, that Williams had no right to consult with counsel before being cross-examined. The supreme court has held that:

[w]hen a defendant becomes a witness, he has no constitutional right to consult with his lawyer ichile he is testifying. He has an absolute right to such consultation before he begins to testify, but neither he nor his lawyer has a right to have the testimony interrupted in order to give him the benefit of counsel’s advice .... Accordingly, it is entirely appropriate for a trial judge to decide, after listening to the direct examination of any witness, whether the defendant or a nondefendant, that cross-examination is more likely to elicit truthful responses if it goes forward without allowing the witness an opportunity to consult with third parties, including his or her lawyer.

Puckett v. State, 879 So.2d 920, 956 (Miss. 2004) (quoting Perry v. Leeke, 488 U.S. 272, 280-82,109 S.Ct. 594, 102 L.Ed.2d 624 (1989)) (emphasis added).

¶ 40. The trial judge’s refusal to allow Williams to consult with his attorney before being cross-examined was appropriate. This issue is without merit.

VI. Whether the verdict was against the overwhelming weight of the evidence.

¶ 41. Williams next argues that the verdict was against the overwhelming weight of the evidence. Our supreme court has set forth the standard of review for assertions that a verdict is against the overwhelming weight of the evidence as follows:

In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as trae the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only in those eases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.

Montana v. State, 822 So.2d 954, 967-68(¶ 61) (Miss.2002) (internal citation omitted). Williams argues that the only evidence that he had possession of the drugs found at the Overlook was the testimony of Officer Brassard. Officer Brassard testified that he saw Williams remove the bag from his pocket and throw it on the ground before fleeing on foot. After catching Williams, the police officers found the bag Williams threw down; they photographed it and collected it as evidence. The testimony of Adrian Hall of the Mississippi Crime Laboratory confirmed that the substance in the bag was cocaine, and its weight was 10.7 grams.

¶ 42. Williams claims that Officer Brassard’s testimony was contradictory. However, Officer Brassard’s testimony was not contradictory, but it was contradicted by defense witnesses, who testified that there were more cars at the Overlook than Officer Brassard testified as to seeing. However, “[t]he jury is charged with the responsibility of weighing and considering conflicting evidence, evaluating the credibility of witnesses, and determining whose testimony should be believed.” Ford v. State, 737 So.2d 424, 425(¶8) (Miss.Ct.App.1999) (citing McClain v. State, 625 So.2d 774, 781 (Miss.1993)). Furthermore, “the testimony of a single witness is sufficient to support a conviction.” Id. (citing Doby v. State, 532 So.2d 584, 590 (Miss.1988)). Where evidence is conflicting, “the court should assume that the jury resolved the conflict in a manner consistent with the verdict.” Id. (citing Gossett v. State, 660 So.2d 1285, 1294 (Miss.1995)).

¶ 43. In reviewing the evidence and accepting the evidence that supports the verdict as being true, we do not find that the jury’s verdict was against the overwhelming weight of the evidence. This issue is without merit.

VII. Whether the trial court erred in modifying and denying certain jury instructions.

¶ 44. “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).

a. Single Juror Instmction (Jury Instruction D-2)

¶ 45. Williams claims that the trial court erred in modifying jury instruction D-2, his “single juror” instruction. The instruction, as given by the trial court, read as follows:

The verdict of the jury must represent the considered judgment of each juror. In order to return a verdict, it will be necessary that each juror agree. In other words, all twelve jurors must agree before returning a verdict in this case. It is your sworn duty as jurors to consult with one another and to deliberate in view of reaching an agreement, if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion, if convinced it is erroneous, but do not surrender your honest convictions as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. If there is any juror who is not convinced beyond a reasonable doubt of the defendant’s guilt, it is his or her duty to vote “Not Guilty.”

The trial court redacted the language, “even though it may cause a mistrial in this case” from the final sentence of the instruction, but otherwise left the instruction as Williams proposed it. Williams cites Edlin v. State, 523 So.2d 42, 49 (Miss. 1988) and claims that based on this decision, it was reversible error for the trial court to refuse his “single juror instruction.” The court in Edlin reversed because the jury was not instructed that their decision had to be unanimous, stating:

In this contention the State is wrong and this case is distinguished from Mallette [v. State, 349 So.2d 546 (Miss. 1977)7, in that the Edlin jury was never instructed that their verdict must be unanimous. Nothing in the court’s instructions remotely resembles the single juror instruction requested by Edlin. Where a jury in a criminal case is not instructed that their verdict must be unanimous, then a single juror instruction is proper and in this case the jury deliberated for an extended period of time without the benefit of either instruction. Therefore, the failure to grant the “single juror instruction” under these circumstances is reversible error.

Id. Williams’s instruction was not refused; it was modified. The instruction given properly instructed the jurors that their decision had to be unanimous, and “[i]f there [was] any juror who [was] not convinced beyond a reasonable doubt of the defendant’s guilt, it [was] his or her duty to vote ‘Not Guilty.’ ” The language that was redacted was unnecessary. This issue is without merit.

b. Jury Instruction D-S

¶46. Williams argues that the trial court erred in redacting the language regarding reasonable doubt from this jury instruction. The instruction as given stated:

The Court instructs the jury that you are bound, in deliberating upon this case, to give the defendant the benefit of any reasonable doubt of the defendant’s guilt that arises out of the evidence or want of evidence in this case. It is only when on the whole evidence you are able to say on your oaths, beyond a reasonable doubt, that the defendant is guilty that the law will permit you to find him/her guilty. You might be able to say that you believe him/her to be guilty, and yet, if you are not able to say on your oaths, beyond a reasonable doubt, that he/she is guilty, it is your sworn duty to find the defendant “Not Guilty.”

The trial court redacted the following language from the instruction Williams proposed: “there is always a reasonable doubt of the defendant’s guilt when the evidence simply makes it probable that the defendant is guilty, mere probability of guilt will never warrant you to convict the defendant.” The trial judge removed the language because he believed it to be an attempt to define reasonable doubt. In Vaden v. State, 965 So.2d 1072, 1074 (¶¶ 3-4) (Miss.Ct.App.2007), this Court ruled that it was not error for a trial court to deny an instruction virtually identical to the instruction proposed by Williams. The Court in Vaden stated, “Our supreme court has repeatedly stated that the term ‘reasonable doubt’ defines itself and is not a proper jury instruction.” Id. at (¶ 4) (citations omitted). Again, Williams’s proposed instruction was not refused; it was merely modified to remove the language that attempted to define reasonable doubt. The jury instruction as given adequately instructed the jury that they had to believe, beyond a reasonable doubt, that Williams was guilty. We find no error in the trial court’s modification of the jury instruction. This issue is without merit.

c. Jwry Instruction D-k

¶ 47. Again, Williams argues that the trial court erred in redacting language from his proposed jury instruction. The jury instruction as given stated that:

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 Herman Williams guilty of every material element of the crime which he is charged. Before you can return a verdict of guilty, the State must prove to your satisfaction beyond a reasonable doubt that Herman Williams is guilty. Herman Williams is not required to prove his innocence.

The language redacted by the trial court read: “The presumption of innocence attends Herman Williams throughout the trial and prevails at its close unless overcome by evidence which satisfied the jury of Herman Williams’s guilt beyond a reasonable doubt.” Again, the jury instruction as given adequately informed the jury that Williams was presumed innocent of the charges and could only be found guilty if the jurors believed in his guilt beyond a reasonable doubt. We find no error in the trial court’s redacting the language. This issue is without merit.

d. Proposed Jury Instruction D-6

¶ 48. Williams’s final argument is that the trial court erred in granting the State’s jury instruction S-l and denying his instruction D-6. Williams argues that the trial court essentially allowed the jury to find Williams guilty of possession of cocaine without the State proving the element of “knowingly or intentionally.” The jury instruction given required the jury to consider whether Williams “did willfully and feloniously possess cocaine, which is a controlled substance.... ” Williams requested an instruction that required the jury to determine whether Williams “knowingly or intentionally” possessed cocaine, and whether he knew it was cocaine.

¶ 49. The trial judge found that Williams’s instruction was so similar to instruction S-l that Williams’s instruction was cumulative, finding that “willfully” incorporated “knowingly and intentionally.” Williams argues that the State’s language in instruction S-l leaves out the element of intent. He argues that the statute under which he was charged, Mississippi Code Annotated section 41-29-189(c), contains the language “knowingly or intentionally.” The State argues that the definition of “willful” includes the terms “knowingly” and “intentionally,” and instruction D-6 would have been similar to S-l.

¶ 60. We are persuaded by the State’s argument. Our supreme court has recognized that the terms are interchangeable. In Moore v. State, 676 So.2d 244, 246 (Miss.1996), the supreme court held that jury instructions which interchanged words of intent still covered the issue of intent, stating:

This Court has stated that “it is inconceivable that an act willfully done is not also knowingly done.” Stated differently, “willfully” means “knowingly.” Moreover, “wil[l]ful” means nothing more than doing an act intentionally.

(Internal citations omitted). The jury was properly instructed on the level of intent required to find Williams guilty of possession of cocaine. This issue is without merit.

¶ 51. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY OF CONVICTION OF POSSESSION OF MORE THAN TEN GRAMS BUT LESS THAN THIRTY GRAMS OF COCAINE AND SENTENCE OF TWENTY-FOUR YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. IRVING, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . The Mississippi Supreme Court amended Rule 8.01 of the Uniform Rules of Circuit and County Court effective July 1, 2008, to provide that criminal matters shall be set for trial at or within sixty days of arraignment. This amendment is effective as to all arraignments on and after July 1, 2008. Hence, it is not applicable to the case currently before the Court. The relevant portion of the amended rule provides as follows:
      Arraignment, unless waived by the defendant, shall be held within thirty (30) days after the defendant is served with the indictment. At or within sixty (60) days of arraignment (or waiver thereof), the court shall enter an order setting a date for trial. Unless good cause be shown, and a continuance granted by written order setting forth the reason for the continuance, an accused shall be brought to trial no later than two hundred seventy (270) days following arraignment (or waiver thereof).

      . Section 3-5-9 contains the following language:
      The concession of jurisdiction to the United States over any part of the territory of the state, heretofore or hereafter made, shall not prevent the execution on such land of any process, civil or criminal, under the authority of this state, nor prevent the laws of this state from operating over such land; saving to the United States security to its property within the limits of the jurisdiction ceded.


author: SEE, Justice.

text:
    SPRINGHILL HOSPITALS, INC., d/b/a Springhill Memorial Hospital v. Sharon LARRIMORE, as administratrix of the estate of Luther Shelton Larrimore, deceased.
    1051748.
    Supreme Court of Alabama.
    Feb. 29, 2008.
    As Modified on Denial of Rehearing Sept. 19, 2008.

      Philip H. Partridge and Bryan D. Smith of Partridge, Smith, P.C., Mobile, for appellant.
    Toby D. Brown, George W. Finkbohner III, and David G. Wirtes, Jr., of Cunningham, Bounds, Crowder, Brown & Breed-love, LLC, Mobile, for appellee.
    Paul V. Lagarde and Robert B. McGin-ley, Jr., of Alford, Clausen & McDonald, LLC, Mobile, for amicus curiae Alabama Hospital Association, in support of the appellant.
   SEE, Justice.

Sharon Larrimore, as administratrix of the estate of her husband, Luther Shelton Larrimore (“the estate”), sued Springhill Hospitals, Inc., d/b/a Springhill Memorial Hospital (“SMH”), among others, alleging wrongful death resulting, at least in part, from the negligence of SMH’s pharmacist, H. Gregory Weeks. The jury returned a general verdict in favor of the estate for $4 million in punitive damages. We hold that the learned-intermediary doctrine cuts off SMH’s liability for Weeks’s alleged breach of a duty of care. We, therefore, reverse the trial court’s judgment and render a judgment as a matter of law in favor of SMH.

Facts and Procedural History

On August 15, 2001, Luther, accompanied by his wife, Sharon, went to the SMH emergency room complaining of severe knee pain. The attending physician, Dr. John M. McMahon, Jr., a physician with approximately 22 years of experience who had performed emergency-room services at SMH since about 1988, conducted a physical examination and ordered a blood test, a uric acid test, and an X-ray. Dr. McMahon diagnosed Luther’s pain as an attack of gout in his knee. Dr. McMahon discussed three possible options for treatment by medication. Luther rejected the first two options because he was concerned that they would aggravate his existing medical problems. He accepted the third option, treatment with colchicine, which he had taken in small doses in the past when he had suffered from attacks of gout in his toe. The last time Dr. McMahon had prescribed colchicine was 17 years eai’lier. Dr. McMahon testified that after referring to the Physician’s Desk Reference (“the PDR”), which he had in his office, he sent a prescription to the SMH pharmacy for Luther, prescribing a loading dose of 2 mg. of colchicine to be taken orally.

When Weeks received the prescription, he telephoned Dr. McMahon to tell him that although 2 mg. is the proper loading dosage when colchicine is administered intravenously, it is not the proper loading dosage when the drug is administered orally. Weeks also informed Dr. McMahon that the pharmacy stocked colchicine in tablet form only, not for intravenous administration. Dr. McMahon asked Weeks what the proper oral dosage was and what the proper prescription dosage was. Weeks informed Dr. McMahon that the proper oral loading dosage of colchi-cine would be 0.5 to 1.2 mg. and a prescription dosage would be a 0.5 to 0.6 mg. tablet to be taken every hour until the symptoms lessened or until the onset of gastrointestinal problems such as cramping, nausea, vomiting, and/or diarrhea. Dr. McMahon testified that Weeks did not ask him any questions about Luther, nor did Dr. McMahon volunteer any information.

Dr. McMahon testified that among Luther’s other health problems, Luther suffered from “renal insufficiency,” or kidney impairment. Dr. McMahon also testified that he knew that the dosage of colchicine for a patient with renal problems should be lower than for a patient whose kidney function is normal. In fact, as the trial court pointed out in its order denying SMH’s postjudgment motions, the proper dosage of colchicine for a patient with normal kidney function is a single 0.5 or 0.6 mg. tablet taken every hour until the gout pain lessens or gastrointestinal symptoms appear (whichever happens first), but not to exceed a total of 6 mg. The proper dosage for a patient with a history of “renal insufficiency” is a single 0.5 to 0.6 mg. tablet taken every hour until the gout pain lessens or gastrointestinal symptoms appear (whichever happens first), but not to exceed a total of 3 mg. Colchicine is contraindicated for patients with severe renal impairment.

At the conclusion of Dr. McMahon’s conversation with Weeks, he altered Luther’s prescription and prescribed a loading dose of one 0.6 mg. tablet of colchicine, which the SMH pharmacy sent to Dr. McMahon and which Luther took while he was at the hospital. Dr. McMahon also wrote Luther a prescription for sixteen 0.6 mg. tablets, which could be refilled twice. Weeks was not aware that Dr. McMahon was going to prescribe any tablets for Luther beyond the one tablet dispensed by the SMH pharmacy or that Dr. McMahon was providing any treatment for Luther beyond the emergency room. Dr. McMahon’s prescription for sixteen 0.6 mg. tablets of colchicine did not indicate the maximum number of pills that could be taken. Dr. McMahon testified that he prescribed more medication than Luther was supposed to take for the gout attack in his knee so that if he had of another attack, Luther would not have to pay another copay to have the medication refilled. Dr. McMahon further testified that he did not specify in the prescription the maximum number of pills or milligrams of colchicine Luther should take because he had repeatedly emphasized to Luther and his wife during their discussions that Luther should stop taking the colchicine as soon as he experienced either a lessening of the gout symptoms or the onset of gastrointestinal symptoms such as cramping, nausea, vomiting, and/or diarrhea. Luther chose to fill the prescription for 16 colchicine tablets at a local drugstore, independent of SMH. There is no evidence in the record indicating that the pharmacist at the local drugstore contacted Dr. McMahon with concerns about the dosage or that that pharmacist was ever named as a defendant in this action.

On August 15, 2001, Luther took the loading dose at SMH and then, after returning home that same night, continued taking one tablet every hour throughout the night, taking a total of 7.2 mg. of colchicine. On August 16, 2001, Luther returned to the SMH emergency room, complaining of vomiting, nausea, diarrhea, fever, abdominal pain, and abdominal cramping. His attending physician that morning, Dr. Michael Mahoney, diagnosed him with a viral syndrome and a drug reaction to colchicine and sent him home. Luther’s symptoms continued to worsen. He was admitted to the Mobile Infirmary Medical Center on August 17, 2001, and he died two days later.

The estate brought a wrongful-death action against several defendants, including Dr. McMahon, Dr. Mahoney, and SMH, alleging that the defendants had negligently failed to provide Luther “reasonably proper and adequate medical care and treatment.” A summary judgment was eventually entered for Dr. Mahoney and all the other defendants, except Dr. McMahon and SMH. On January 9, 2006, the first day of the first trial of this case, Dr. McMahon entered into a pro tanto settlement agreement with the estate for $200,000, the existence and amount of which was admitted into evidence at trial, leaving SMH as the only defendant. The first trial ended in a mistrial when the jury could not return a unanimous verdict.

In the second trial, the jury returned a general verdict against SMH for $4 million in punitive damages. SMH moved the trial court for, in the alternative, a judgment as a matter of law, a new trial, or a remittitur of the punitive-damages award. The trial court denied the motions, and • SMH now appeals to this Court.

Issue

SMH argues that the trial court erred in denying its motion for a judgment as a matter of law by refusing to apply the learned-intermediary doctrine, which, SMH alleges, cuts off Weeks’s liability— and therefore SMH’s vicarious liability — to the estate.

Standard of Review

“This Court reviews de novo the grant or denial of a motion for a [judgment as a matter of law], determining whether there was substantial evidence, when viewed in the light most favorable to the nonmoving party, to produce a factual conflict warranting jury consideration. Alfa Life Ins. Corp. v. Jackson, 906 So.2d 143, 149 (Ala.2005) (citing Ex parte Helms, 873 So.2d 1139, 1143-44 (Ala.2003)). ‘ “ ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’” ’”

Jones Food Co. v. Shipman, 981 So.2d 356, 360-61 (Ala.2006). Because SMH’s argument is that the trial court erred when it denied SMH’s postjudgment motion for a judgment as a matter of law, our review is de novo.

Analysis

SMH argues that the trial court erred in denying its motion for a judgment as a matter of law because, it argues, the learned-intermediary doctrine cuts off any duty Weeks may have owed Luther. The estate, however, argues that the learned-intermediary doctrine does not apply in this case because, it says, the doctrine “exists as a defense in products liability cases” and this is a “simple medical negligence ease based on breaches of the standard of care.” Estate’s brief at 31.

Although we disagree that the learned-intermediary doctrine is limited to products-liability cases, the facts of this case do require an analysis outside the traditional setting in which we have applied the doctrine. This Court adopted the learned-intermediary doctrine in Stone v. Smith, Kline & French Lab., 447 So.2d 1301 (Ala.1984), a case addressing whether a manufacturer’s duty to warn extends beyond the prescribing physician to the physician’s patients who would ultimately use the drugs. Then, in Walls v. Alpharma USPD, Inc., 887 So.2d 881, 882 (Ala.2004), we applied the doctrine to address whether a pharmacist has a “duty to warn of foreseeable injuries from the use of the prescription drug he/she is dispensing.” In those cases, the duty at issue was a drug manufacturer’s or a drug dispenser’s duty to warn customers. Here, the duty at issue is not a duty to warn a customer, Luther, of potential risks or side effects, but a duty of care, allegedly breached by Weeks when he gave Dr. McMahon allegedly incomplete dosing information for colchicine. The learned-intermediary doctrine is more than just a narrow rule of law regarding a manufacturer’s or pharmacist’s limited duty to warn. It addresses questions of liability in light of the relationships between the parties involved in the distribution, prescribing, and use of prescription drugs. We discussed in Walls the policies underlying the learned-intermediary doctrine:

“ ‘The relationship between physician-patient-manufacturer applies equally to the relationship between the physician-patient and pharmacist. In both circumstances the patient must look to the physician, for it is only the physician who can relate the propensities of the drug to the physical idiosyncrasies of the patient. “It is the physician who is in the best position to decide when to use and how and when to inform his patient regarding risks and benefits pertaining to drug therapy.” W. Keeton, R. Keeton & D. Owen, Prosser and Keeton on Torts § 96, at 688 (5th ed.1984).
“ ‘In Young v. Key Pharmaceuticals, Inc., 112 Wash.2d 216, 770 P.2d 182 (1989), we stated “[The physician’s standard of care regarding] proper dosages of medication is not within the scope of matters on which nonphysicians are competent .... ” Young, at 230, 770 P.2d 182.
“ ‘Neither manufacturer nor pharmacist has medical education or knowledge of the medical history of the patient which would justify a judicial imposition of a duty to intrude into the physician-patient relationship. ... Requiring the pharmacist to warn of potential risks associated with a drug would interject the pharmacist into the physician-patient relationship and interfere with ongoing treatment. We believe that duty, and any liability arising therefrom is best left with the physician.’ ”

Walls, 887 So.2d at 885-86 (quoting McKee v. American Home Prods. Corp., 113 Wash.2d 701, 782 P.2d 1045, 1051 (1989)). See also Stone, 447 So.2d at 1305 (“ ‘Prescription drugs are likely to be complex medicines, esoteric in formula and varied in effect. As a medical expert, the prescribing physician can take into account the propensities of the drug as well as the susceptibilities of his patient. His is the task of weighing the benefits of any medication against its potential dangers. The choice he makes is an informed one, an individualized medical judgment bottomed on knowledge of both patient and palliative.’ ” (quoting Reyes v. Wyeth Labs., 498 F.2d 1264, 1276 (5th Cir.1974))). On the basis of those underlying policies, we determined in Walls that the learned-intermediary doctrine” forecloses any duty upon a pharmacist filling a physician’s prescription, valid and regular on its face, to warn the physician’s patient, the pharmacist’s customer, or any other ultimate consumer of the risks or potential side effects of the prescribed medication.” 887 So.2d at 886.

Although the facts of Walls differ from those here, the rationale and policies discussed in that decision are directly applicable. Here, we are asked to address the allocation of liability between the same parties involved in Walls — the pharmacist, the physician, and the patient — in order to answer the same ultimate question: whether a pharmacist should be liable for harm to a physician’s patient resulting from medication prescribed by the physician. The rationale in Walls answers that question: the physician, not the pharmacist, has the medical education and training and the knowledge of a patient’s individual medical history necessary for properly prescribing medication; therefore, it is the physician, not the pharmacist, who should bear the liability for mistakes in prescribing or dosing the medication. Walls, 887 So.2d at 886 (“ ‘ “[The physician’s standard of care regarding] proper dosages of medication is not within the scope of matters on which nonphysicians are competent” .... Neither manufacturer nor pharmacist has the medical education or knowledge of the medical history of the patient which would justify a judicial imposition of a duty to intrude into the physician-patient relationship.’ ” (quoting McKee, 113 Wash.2d at 711, 782 P.2d at 1051, quoting in turn Young v. Key Pharm., Inc., 112 Wash.2d 216, 280, 770 P.2d 182, 190 (1989))).

The estate maintains that Weeks breached a duty of care to Luther, which duty, the estate alleges, arose when Weeks voluntarily undertook to give Dr. McMahon information about the proper dosage in administering colchicine. We have held that “one who volunteers to act, though under no duty to do so, is thereafter charged with the duty of acting with due care and is liable for negligence in connection therewith.” Dailey v. City of Birmingham, 378 So.2d 728, 729 (Ala.1979). The estate argues that SMH, through its policies and procedures, voluntarily assumed a duty of care through its pharmacy, and that “SMH’s pharmacy voluntarily undertook to be a drug information resource for physicians to rely upon; SMH’s clinical pharmacist voluntarily undertook to intervene and consult with Dr. McMahon upon identifying the initial prescription error; and SMH’s clinical pharmacist voluntarily undertook to provide dosing information when asked to do so by Dr. McMahon.”

The application of the voluntary-undertaking doctrine to a pharmacist is a question of first impression for this Court. The estate argues that courts “have held in numerous factual scenarios that pharmacists voluntarily assumed duties of care.” Estate’s brief at 46. The estate cites Ferguson v. Williams, 101 N.C.App. 265, 399 S.E.2d 389 (1991); Baker v. Arbor Drugs, Inc., 215 Mich.App. 198, 205-06, 544 N.W.2d 727, 731 (1996); and Cottam v. CVS Pharmacy, 436 Mass. 316, 764 N.E.2d 814 (2002).

The cases cited by the estate are readily distinguishable from this one and therefore unpersuasive. In each case cited, the respective court found that the pharmacy or pharmacist had voluntarily undertaken a duty to the customer based on the interactions between the pharmacist and the customer. None of those cases addresses the voluntary assumption of a duty based on a pharmacist’s interaction with the customer’s physician. See Ferguson, 101 N.C.App. at 272, 399 S.E.2d at 393 (“A druggist simply has the duty to act with due, ordinary care and diligence in compounding and selling drugs. ... [However, ... if a pharmacist undertakes to advise a client concerning a medication, the pharmacist is under a duty to advise correctly.”); Baker, 215 Mich.App. at 205-06, 544 N.W.2d at 730-31 (“[T]here is no legal duty on the part of a pharmacist to monitor and intervene in a customer’s reliance on drugs prescribed by a licensed treating physician. ... [However], defendant [Arbor Drugs, Inc.] voluntarily assumed a duty of care when it implemented the Ar-bortech Plus [computer] system and then advertised that this system would detect harmful drug interactions for its customers.”); Cottam, 436 Mass, at 323-26, 764 N.E.2d at 821-23 (“A pharmacy, like any other person or entity, may voluntarily assume a duty ... to provide information, advice or warnings to its customers. ... [T]he scope of the duty voluntarily undertaken by a pharmacy is a fact-specific inquiry based on the totality of the pharmacy’s communications with the patient and the patient’s reasonable understanding, based on those communications, of what the pharmacy has undertaken to provide.”).

Moreover, the pharmacist in Ferguson had specific knowledge related to the patient’s medical history, and in Baker the pharmacy had taken steps to provide warnings based on the customer’s individual medication profile. Ferguson, 101 N.C.App. at 272, 399 S.E.2d at 394 (“It is undisputed that [the pharmacist] knew that Ferguson was allergic to Percodan .... It is also clear she knew that Ferguson had suffered from an anaphylaetic reaction to Percodan.”); Baker, 215 Mich. App. at 205, 544 N.W.2d at 731 (“Plaintiff has presented evidence that defendant implemented, used, and advertised through the media that it used, the Arbortech Plus computer system to monitor its customers’ medication profiles for adverse drug interactions.”). Here, there is no evidence indicating that Weeks knew anything of Luther’s medical history.

Further, the standard of care put forward by the estate would place the physician in a position adjunct to the pharmacist, resulting in exactly the situation our decisions in Walls and Stone sought to prevent, asking the pharmacist to intrude himself or herself into the physician-patient relationship and requiring the pharmacist to give advice or take actions that he or she is neither licensed nor trained to give or take. See Walls, 887 So.2d at 886 (“ ‘ “[The physician’s standard of care regarding] proper dosages of medication is not within the scope of matters on which nonphysicians are competent .... ” “[Pharmacists are not doctors and are not licensed to prescribe medication because they lack the physician’s training in diagnosis and treatment.” ’ ” (quoting McKee, 113 Wash.2d at 711, 782 P.2d at 1051, quoting in turn Young, 112 Wash.2d at 230, 770 P.2d at 190)).

In light of the foregoing, we are unpersuaded by the estate’s argument that Weeks voluntarily assumed a duty of care when he answered Dr. McMahon’s question about dosing colchicine. Because we find the principles articulated in Walls and Stone applicable to this case, we hold that the learned-intermediary doctrine precludes SMH’s liability for harm resulting from any mistakes on Dr. McMahon’s part in prescribing colchicine. In light of that holding, we hold that the estate, therefore, did not present “substantial evidence ... to produce a factual conflict warranting jury consideration,” Jones Food Co. v. Shipman, 981 So.2d at 360-61, and that SMH was entitled to a judgment as a matter of law on this issue. Our decision on this issue pretermits consideration of the other issues argued by SMH on this appeal.

Conclusion

We hold that the principles of the learned-intermediary doctrine apply in this case to foreclose any duty of care owed by Weeks to Luther, based on Weeks’s statements to Dr. McMahon regarding the dosing of colchicine. SMH, therefore, was entitled to a judgment as a matter of law, and the trial court erred in denying its postjudgment motion seeking that relief. We reverse the trial court’s judgment and render a judgment as a matter of law in favor of SMH.

REVERSED AND JUDGMENT RENDERED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

      . Luther rejected Indocin, because he was afraid it would aggravate his ulcerative colitis. He also rejected prednisone, because it had previously caused aseptic necrosis in his hips.

      . A "loading dose” is "a comparatively large dose given at the beginning of treatment to start getting the effect of a drug, especially one with slow clearance thus requiring a long period to achieve stable blood levels without a high initial dose.” Stedman's Medical Dictionary 538 (27th ed.2000).

      . In addition to the PDR, Dr. McMahon had various other sources available to him, including at least four additional medical reference books that described how to dose colchicine for the treatment of gout. Dr. McMahon also had the option of walking to the hospital pharmacy to review pharmaceutical references. Dr. McMahon did not use any of these additional methods for obtaining information regarding administering colchicine.

      . Although Weeks has no specific recollection of any of the pertinent facts, it is undisputed that he was the only SMH pharmacist on duty at the time of Luther’s initial visit to the emergency room, and he would have been the pharmacist who received Dr. McMahon’s prescription for 2 mg. of colchicine to be administered orally to Luther in the emergency room.

      .At the time Luther was treated at SMH, SMH had in effect a written policy applicable to its pharmacy entitled "Interventions.” That policy applied to both inpatients and outpatients:
      "Purpose: To define a collaborative patient monitoring system which is necessary to assure appropriateness and continuity of care and provide the information necessary for creating an accurate medication history and profile.
      "Policy: The prescribing physician shall be called for consultation whenever the pharmacist deems it necessary upon reviewing a medication order to prevent any unwanted outcome.
      "These consultations shall be termed 'interventions' and shall be reviewed by the Pharmacy and Therapeutic Committee.”

      . Dr. McMahon and Dr. Mahoney were not employees of SMH; they were members and employees of a physicians' professional corporation.

      . SMH alleges eight other instances of error on the part of the trial court; however, our reversal of the trial court’s judgment on this first issue pretermits consideration of the other alleged errors.

      . In Walls v. Alpharma USPD, Inc., 887 So.2d 881, 882 (Ala.2004), the United States District Court for the Northern District of Alabama presented to this Court the following certified question; "Does a pharmacist have a duty to warn of foreseeable injuries from the use of the prescription drug he/she is dispensing under AEMLD [Alabama Extended Manufacturer's Liability Doctrine], common-law negligence or other Alabama law?" Walls, 887 So.2d at 882. The plaintiff in Walls, who was pregnant, took prescription medication that she alleged caused her child to be born with numerous medical conditions. The plaintiff sued both the prescribing physician and the pharmacist who dispensed the prescribed drugs. After discussing the principles underlying the learned-intermediary doctrine, we answered the federal court’s question in the negative and concluded that the doctrine "forecloses any duty upon a pharmacist filling a physician’s prescription ... to warn the physician's patient, the pharmacist's customer, or any other ultimate customer of the risks or potential side effects of the prescribed medication." Walls, 887 So.2d at 886. We did not limit our review or our holding to products-liability issues.

      . The estate also argues that Weeks's duty of care arose from statutes and regulations related to the practice of pharmacy and pharmacists. However, as the estate itself notes, the estate “elected as a matter of trial strategy not to introduce evidence of the statutorily and regulatorily [sic] imposed duties out of concern that [it] might run afoul of caselaw holding generally that legislation regulating learned professions cannot be used to establish a private right of action in the breach.’’ " '[T]his Court will affirm a judgment for any reason supported by the record that satisfies the requirements of due process.’ ” CitiFinancial Corp., LLC v. Peoples, 973 So.2d 332, 340 (Ala.2007) (quoting Smith v. Mark Dodge, Inc., 934 So.2d 375, 380 (Ala.2006), citing in turn Taylor v. Stevenson, 820 So.2d 810, 814 (Ala.2001)). By the estate's own admission, there is no evidence in the record regarding the alleged statutory or regulatory duties. Moreover, the estate has not directed us to any law or facts indicating that the actions of the SMH pharmacy with regard to the only prescription it received from Dr. McMahon, the prescription for a loading dose of 2 mg. of colchicine, violated any of the alleged duties. Therefore, we cannot affirm the judgment on this ground.

      . The estate argues that "the standard of care [in this case] required [Weeks] to ask for and obtain more information before he gave an answer to the question about how to dose [c]olchicine.”

      . Even if we were to hold that SMH’s "Interventions” policy imposed a duty of care on Weeks, the facts of this case do not demonstrate a breach of that duty. As noted previously, SMH's policy, entitled "Interventions,” provided that "[t]he prescribing physician shall be called for consultation whenever the pharmacist deems it necessary upon reviewing a medication order to prevent any unwanted outcome.” Weeks followed this policy when he telephoned Dr. McMahon about the only prescription he received with respect to medication to be administered to Luther, namely, one 2 mg. tablet of colchicine. Weeks caught Dr. McMahon’s error in prescribing 2 mg. of colchicine to be administered orally — an improper loading dosage for oral administration — and informed Dr. McMahon that 2 mg. of colchicine would be a proper loading dosage for colchicine only if it was administered intravenously, and that SMH did not have colchicine available in a format to be administered intravenously.