source: Caselaw Access Project

author: ISHEE, J„

license: Public Domain

text:
    Cody BANTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00905-COA.
    Court of Appeals of Mississippi.
    July 20, 2010.
    Rehearing Denied Nov. 2, 2010.
    Certiorari Denied Feb. 10, 2011.

      David L. Walker, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J„

for the Court:

¶ 1. Cody Banton was convicted of murder. The Circuit Court of Panola County sentenced him to life in the custody of the Mississippi Department of Corrections (MDOC). Banton now appeals and raises the following allegations of error:

I. Whether the circuit court erred in denying his motion for a new trial;
II. Whether the circuit court erred in denying his motion for a judgment notwithstanding the verdict; and
III. Whether the imposition of imprisonment for life is cruel and unusual punishment for a seventeen-year-old youth.

Finding no error, we affirm.

FACTS

¶ 2. On the night of April 25, 2008, Ban-ton, his father, Harley Banton (Harley), Shane Keel, and Tina Kramer were all gathered at Harley’s house. Harley went to bed at approximately 9:30 p.m., but he was later awaken by an argument between Banton and Keel. The argument was quickly resolved. Harley then went outside to talk to Kramer. Keel came outside shortly thereafter.

¶ 3. Harley mistakenly thought that Keel and Kramer had been arguing, so he asked Keel to leave. Keel refused to leave and remained in Harley’s yard drinking a beer and trying to talk to Kramer. Harley asked Keel to leave several more times, but Keel continued to refuse. Upset that Keel would not leave, Harley picked up a shovel and started hitting Keel with it. Harley testified at trial that Keel never hit him, but he thought that Keel would “beat the crap out of me.” While Harley was hitting Keel with the shovel, Banton came outside with a gun and shot and killed Keel.

¶ 4. After Banton shot Keel, Harley called 911 and informed the dispatcher that there had been an accidental shooting at his house. When the police officers arrived, Harley stated that he, Banton, Keel, and Kramer had all been sitting around a campfire shooting into the woods. Then, at some point, Keel got up; Harley heard a gunshot; and he saw Keel lying on the ground. Banton gave a different account of what had happened. He told the police officers that he was inside playing video games when he heard four or five gunshots, went outside, and found Keel dead on the ground.

¶ 5. At trial, Harley testified that he did not know why Banton shot Keel unless Banton was trying to protect him. However, both Kramer and Banton testified that while Harley was hitting Keel with the shovel, Harley yelled for Banton to “go get the gun.” Banton admitted at trial that he did go get a gun and aimed it at Keel, but he stated that his only intention was to scare Keel. Banton also testified that he fired the gun only after he saw Keel’s hands go up and he thought Keel had a knife. No knife was recovered from the scene.

¶ 6. Banton was found guilty of murder. His motion for a new trial or, in the alternative, for a judgment notwithstanding the verdict was denied by the circuit court. Thereafter, he timely filed this appeal.

DISCUSSION

I. Whether the circuit court erred in denying Banton’s motion for a new trial.

¶7. Banton first takes issue with the circuit court’s denial of his motion for a new trial. Banton argues that the verdict is against the weight of the evidence presented at trial. He alleges that he feared for his father’s life and was only trying to protect him.

¶ 8. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). Our review of the record as a whole provides no error by the circuit court in denying Banton’s motion for a new trial. Kramer’s statements to the police officers following the incident and her testimony at trial of what happened that night are consistent with the physical evidence at the scene. However, both Banton and Harley gave contradictory versions of the events to the police officers. Initially, they stated that the shooting was accidental, but later they changed their statements to say that the shooting was in self-defense.

¶ 9. After weighing the evidence and assessing the witnesses’ credibility, the jury returned a guilty verdict. We find that the jury’s verdict is not against the overwhelming weight of the evidence and does not represent an unconscionable injustice. Therefore, this issue is without merit.

II. Whether the circuit court erred in denying Banton’s motion for a judgment notwithstanding the verdict.

¶ 10. Next, Banton takes issue with the circuit court’s denial of his motion for a judgment notwithstanding the verdict. Banton claims that the State did not present legally sufficient evidence to support the jury’s guilty verdict. Banton states that in the present case, Harley did not have to retreat when confronted by Keel, and that Banton had the right to shoot and kill Keel in order to protect his father. Banton argues that his actions were justifiable under the “Castle Doctrine.” The “Castle Doctrine” states in part:

A person who uses defensive force shall be presumed to have reasonably feared imminent death or great bodily harm, or the commission of a felony upon him or another or upon his dwelling ... and the person who used defensive force knew or had reason to believe that the forcible entry or unlawful and forcible act was occurring or had occurred.

Miss.Code Ann. § 97-3-15(3) (Rev.2006).

¶ 11. The evidence showed that Keel was neither in the process of unlawfully and forcibly entering nor had unlawfully and forcibly entered the Bantons’ property when Banton shot Keel. Moreover, there was no evidence that Keel was going to commit an assault, offer violence to anyone on the property, or commit some other crime on the property. The evidence only established that Keel was on the Bantons’ property, unarmed, when Banton shot him. Therefore, we find that Banton’s killing of Keel cannot be justified under the “Castle Doctrine.”

¶ 12. “A review of the sufficiency of the evidence does not require this Court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Johnson v. State, 997 So.2d 256, 259 (¶ 9) (Miss.Ct.App.2008).

¶ 13. According to Mississippi Code Annotated section 97-3-19(l)(a), murder is defined as “[t]he killing of a human being without the authority of law by any means or in any manner shall be murder ... [w]hen done with deliberate design to effect the death of the person killed, or of any human being[.]” When considering all the evidence presented in the light most favorable to the State, we find that the evidence was legally sufficient to establish the elements of murder. There was also insufficient evidence on the basis of self-defense presented by Banton to overcome the State’s case. This issue is also without merit.

III. Whether the imposition of imprisonment for life is cruel and unusual punishment for a seventeen-year-old youth.

¶ 14. Lastly, Banton asserts that the circuit court erred in sentencing him to life imprisonment because he was only seventeen years old at the time of sentencing. Banton argues that his sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and Article 3, Section 28 of the Mississippi Constitution of 1890. Banton states that these constitutional provisions require that he be treated differently than an adult because a life sentence is involved.

¶ 15. A conviction of murder carries a sentence of life imprisonment. Miss.Code Ann. § 97-3-21 (Rev.2006). Banton fails to provide relevant authority to support his contention. Arguments advanced on appeal must “contain the contentions of the appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.’ ” M.R.A.P. 28(a)(6). “Failure to comply with Mississippi Rule of Appellate Procedure 28(a)(6) renders an argument procedurally barred.” Rogers v. State, 994 So.2d 792, 800 (¶31) (Miss.Ct.App.2008). This issue is procedurally barred. Assuming, for the sake of discussion, that Banton was not procedurally barred, we would find no merit to this issue. Finding no error by the circuit court, we affirm.

¶ 16. THE JUDGMENT OF THE PA-NOLA COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PANOLA COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ROBERTS AND MAXWELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT. CARLTON, J., NOT PARTICIPATING.


author: ISHEE, J.,

text:
    Gregory FRAZIER, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00113-COA.
    Court of Appeals of Mississippi.
    Aug. 17, 2010.
    Rehearing Denied Dec. 14, 2010.
    Certiorari Denied Feb. 10, 2011.
    Leslie S. Lee, Jackson, Wilbert Levon Johnson, Erin Elizabeth Pridgen, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory, Jackson, attorney for appel-lee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Gregory Frazier was convicted in the Circuit Court of Bolivar County of aggravated assault. He was sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, he now appeals alleging ineffective assistance of counsel based upon his attorney’s failure to object to impermissible testimony. Finding no obvious deficient performance by Frazier’s counsel, we affirm the circuit court’s judgment.

FACTS

¶ 2. Frazier and Crystal Wadlington had been dating approximately six years before the couple broke up approximately two weeks before April 9, 2008. On April 9, 2008, Frazier began harassing Wadlington through numerous phone calls and text messages. At trial, Dr. Evelyn Smith, Director of Nursing at Coahoma Community College, testified that one of her students (Wadlington) “burst into” her office visibly upset saying that her boyfriend was calling her and coming to kill her. Dr. Smith quickly notified the local police chief. Once officers arrived at the scene, Wad-lington received another phone call from Frazier. Wadlington proceeded to put the call on “speaker phone” so those around her could listen. Dr. Smith, who was still with Wadlington, overheard the voice of a man “threatening this young lady.”

¶ 3. After another threatening phone call from Frazier, Wadlington drove to a courthouse in Clarksdale, Mississippi, to file for a restraining order against Frazier, but she was told that she would have to seek protection in Bolivar County. Wadlington proceeded to drive back to her house in Cleveland, Mississippi. As she traveled home, she spoke with Frazier for most of the way. She testified that, by , the time she made it home, Frazier was crying, asking Wadlington to come over. He assured her that everything would be okay, and that he just wanted to talk. Finally, Wadlington agreed to go to Frazier’s house.

¶ 4. Wadlington and Frazier disagree as to what took place once she arrived at Frazier’s home and walked back to his bedroom. Therefore, we will briefly address each account.

I. Frazier’s Account

¶ 5. Frazier claims that Wadlington, for reasons unknown, attempted to lay beside him in his bed, but because he did not trust her, he rejected her advances. After his rejection, Frazier claims Wadlington began to clinch her purse close to her body. She then got up and walked to the restroom. While she was in the restroom, Frazier, believing Wadlington had a gun in her purse, retrieved his gun from under his bed and placed it under the sheets next to him.

¶ 6. Once Wadlington returned from the restroom, she sat in the recliner and placed her purse beside her feet. This apparently alarmed Frazier, as he grabbed his gun and rolled out of his bed. He claimed he never once pointed the gun at Wadlington. At this moment, Frazier claimed that Wadlington pulled a knife from her purse. Frazier further stated that his gun then accidently discharged as he attempted to disarm her. Frazier immediately dialed 911 and began administering first aid to Wadlington.

II. Wadlington’s Account

¶ 7. Wadlington’s account is much different. Wadlington asserts that as soon as she walked into Frazier’s room, he became confrontational. She claimed that Frazier began telling her to take off her clothes, and he accused her of “playing” him. Although she refused to take off her clothes, she sat on the bed next to Frazier and took off her shoes and placed her phone down. Frazier then demanded that Wad-lington hand over her phone to him. When she refused, Frazier stated: “I’m not going to ask you again,” at which point Wadlington just “threw [the phone] on the bed.”

¶ 8. Frazier then began scrolling through Wadlington’s call logs and text messages. As he was doing so, a “private” caller called Wadlington’s phone. As the phone continued to ring, Frazier pointed the gun at Wadlington’s head demanding her to answer it. She did, and after a brief exchange, the caller hung up. Frazier demanded to know the identity of the caller, and Wadlington maintained she did not know. Frustrated, Frazier then shot Wadlington in the leg. He then put the gun back to her head, and he asked her once again for the identity of the caller. Before she could answer, Frazier’s mother knocked on the bedroom door and asked “what’s going on in there?” Frazier then went to Wadlington’s purse and took out $270. At this point, Wadlington informed Frazier she was getting dizzy, and shortly afterward, she passed out.

¶ 9. At trial, Wadlington testified that she had nothing in her hand at the time she was shot. She further testified that she had been shot in her femoral artery and vein, which caused massive bleeding and loss of consciousness.

STANDARD OF REVIEW

¶ 10. The standard for determining whether or not a defendant received effective assistance of counsel is well settled. To prevail on a claim of ineffectiveness of counsel, a defendant must demonstrate that his counsel’s performance was (1) deficient and (2) that counsel’s deficiency actually prejudiced the defense of the case. Burnside v. State, 882 So.2d 212, 216 (¶ 20) (Miss.2004) (quoting Burns v. State, 813 So.2d 668, 673 (¶ 14) (Miss.2001)). “Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable. The focus of the inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Id. (citations omitted).

DISCUSSION

¶ 11. Frazier claims on appeal that his counsel’s repeated failure to object to certain testimonies denied him his constitutional right to effective assistance of counsel.

¶ 12. We have held “[cjounsel’s choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall[s] within the ambit of trial strategy and will not stand as support for an ineffective assistance of counsel claim.” Hancock v. State, 964 So.2d 1167, 1175 (¶ 18) (Miss.Ct.App.2007). There is a strong presumption “that the attorney’s conduct fell within the wide range of reasonable professional assistance.” Carr v. State, 873 So.2d 991, 1003 (¶ 27) (Miss.2004). In Mohr v. State, 584 So.2d 426, 430 (Miss.1991), the Mississippi Supreme Court discussed the wide latitude given to attorneys and our limited review of their choice of trial strategy. The supreme court emphasized:

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.

Id. at 430 (quoting Lambert v. State, 462 So.2d 308, 316 (Miss.1984)) (internal citation omitted).

¶ 13. After careful review of the record as a whole, we find no obvious deficient performance by Frazier’s counsel. Although Frazier’s counsel could have properly objected to certain testimonies, it is improper for this Court, without more, to second-guess defense counsel’s trial strategy. Thus, we decline to do so here. When counsel’s defective performance is not obvious, the parties must “stipulate that the record is adequate” for direct review of an ineffective-assistance-of-counsel claim before the merits can be addressed on direct appeal. See Read v. State, 430 So.2d 832, 841 (Miss.1983).

¶ 14. Seeing no obvious deficient performance by his trial attorney or any stipulation that the record is adequate, we affirm without prejudice to Frazier’s right to file for post-conviction relief, if he so chooses.

¶ 15. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY $93,000 IN RESTITUTION, $10,136.83 TO THE MISSISSIPPI CRIME VICTIMS’ COMPENSATION FUND, AND $250 TO THE INDIGENT DEFENSE FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


author: GRIFFIS, J„

text:
    Eric Lavon ROBERTS, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-01707-COA.
    Court of Appeals of Mississippi.
    Aug. 17, 2010.
    Rehearing Denied Jan. 18, 2011.

      Vaterria McQuitter Martin, Ridgeland, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J„

for the Court:

¶ 1. Eric Roberts appeals his conviction of burglary. On appeal, Roberts argues that: (1) the trial court erred by allowing Roberts’s statement to Officer Michael Hall into evidence; (2) the trial court erred by allowing Roberts’s statements to Detective Jon Traxler into evidence; (3) the prosecutor made an improper closing argument; (4) the trial court erred in denying Roberts’s motion for a judgment notwithstanding the verdict or, in the alternative, a new trial; (5) he received ineffective assistance of counsel; and (6) cumulative errors deprived him of his constitutional right to a fair trial. We find no error and affirm.

FACTS

¶ 2. On February 1, 2007, Ledonna Ellis had two girlfriends over to her apartment. The three girls went to a party and were home by midnight. Ellis went to sleep alone in one room, while the other two girls slept in a second bedroom.

¶ 3. At approximately 3:00 a.m., Ellis awoke to a man standing in her bedroom. Her room was dark, so she ran to her bathroom to turn on a light and did not see anyone. She then raced to her kitchen to turn on the light. In the kitchen, she saw the intruder in a crouched position in front of her refrigerator. Ellis ran to the other bedroom, slammed the door, and called 911. The intruder rummaged around the apartment for a few minutes; then he left through the front door.

¶ 4. At approximately 3:30 a.m., Officer Michael Hall responded to a call about a potential burglary. He was given a description — a black male wearing a blue hoodie. Officer Hall arrived at the apartment complex’s parking lot approximately a minute later. Upon arrival, he saw Eric Roberts walking across the parking lot. He called him over and asked him where he was coming from. Roberts responded that he was coming from McDonalds. Officer Hall told Roberts that Roberts fit the description of a suspect that was involved in a burglary. He then patted Roberts down and found an open-bladed knife in Roberts’s pocket. After finding the knife, Officer Hall placed Roberts in the back of his patrol car.

¶ 5. Officer Hall waited for other officers to arrive to help investigate the burglary. Roberts knocked on the police car’s window to get Officer Hall’s attention. Officer Hall opened the door, and Roberts told the officer: “All right, I just came out of this female’s room. I realized I forgot my phone, so I went back and got it, and I just left.” At that time, Officer Hall read Roberts his Miranda rights.

¶ 6. When they arrived at the police station, Detective Traxler spoke with Roberts and again read Roberts his Miranda rights. Roberts signed a waiver of his Miranda rights and wrote the following statement:

The individual at a party ask[ed] me to walk a girl home from the little party. I walked her home. I overheard her talking over the phone to her roommate, so I walk[ed] out to Ross Street and the officers were there! They informed me that something had happen[ed] that I wasn’t authorized to control “on my own,” so I cooperated with the officers!
I walk[ed] someone home[,] but I was not wearing or fit the description the [officer] said, it may have been a totally difference [sic] place, but I had -been drink[ing], but not driv[ing] after the party!

Detective Traxler then wrote a series of questions for Roberts, and Roberts wrote his answers. The questions and answers are as follows:

Q: Did you know anyone that lives at 105 Ross Blvd.?
A: On my way to Quizno’s. So[,] I stopped at the party[,] but I didn’t know anyone personally.
Q: Do you know the name of the girl you walked home?
A: Don’t know her name. I was drinking, she may have been drinking.
Q: . Do you know what apartment she lives in?
A: Don’t know the apartment number because we w[ere] walking and being loud.
Q: Do you remember what she was wearing?
A: I can’t exactly remember what she was wearing! Was talking and being loud!
Q: How many people were with you when you walked her home?
A: It started as me and two girls! One went to an apartment and the other went to another.
Q: Do you know the other girl[’]s name and what she was wearing?
A: No.
Q: Do you know what her apartment [number] is?
A: No sir.
Q: Did one of the girls ask you to come in her apartment?
A: No, but one informed me that there were blankets and you [sic] could sleep on the floor.
Q: How did you get in the apartment?
A: I walk[ed] through a door “drunk” with the next male’s so[-]called girlfriend!
Q: What do you mean the next male’s so[-]called girlfriend?
A: Not meaning the word “drunk” but she possibly could have been involved in [a] relationship because she told me she had blankets!
Q: What did she do when she went in the apartment?
A: She was quiet, I just left, I realized] my phone was drop[ped] on the floor with blankets. Went back th[ere] got the phone off the floor. Lockfed] them in by twisting the knob and the[n] I talk[ed] to officers.
Did you go in her bedroom? O’
Whe[n] I left, I didn’t go into the bedroomf.] I yelled, I’m leaving. <d
Did you go in the kitchen? <©
I’m unsure where the kitchen is! But, no. t>
Did you lock the door when you left? <©
A: After I walked back and yelled where is my phone[.] I lock[ed] the door behind me!
Q: Was there anyone else at the apartment?
A: I’m not sure!

¶ 7. Roberts was charged pursuant to Mississippi Code Annotated section 97-17-23(1) (Supp.2009), which provides:

Every person who shall be convicted of breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with intent to commit some crime therein, shall be punished by commitment to the custody of the Department of Corrections for not less than three (3) years nor more than twenty-five (25) years.

¶ 8. A jury found Roberts guilty of the charge. Roberts was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections, with five years suspended, twenty years to serve, and five years of post-release supervision. Roberts’s motion for judgment notwithstanding the verdict or, alternatively, a new trial was denied.

ANALYSIS

1. Whether the trial court erred in allowing Roberts’s statements made to Officer Hall into evidence.

¶ 9. Roberts claims that his statements to Officer Hall were involuntary because he was subject to custodial interrogation without proper Miranda warnings. The State responds that Roberts’s statements were not made in violation of Roberts’s Miranda rights because Roberts made the statements voluntarily.

¶ 10. Miranda warnings are needed once the suspect is subject to “custodial interrogation.” Compton v. State, 460 So.2d 847, 849 (Miss.1984). To be subject to custodial interrogation, the suspect must be both in custody and undergoing interrogation. A suspect is in custody when his right to freely leave has been restricted. Roberts v. State, 301 So.2d 859, 861 (Miss.1974). The accused is subject to interrogation when he is questioned by the police or the functional equivalent. Pierre v. State, 607 So.2d 43, 52 (Miss.1992). The functional equivalent is any sort of activity that the police reasonably believe will produce an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 302, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

¶ 11. A pretrial hearing was held to determine whether Roberts’s statements were voluntary. Officer Hall testified that he asked Roberts one question — “where are you coming from?” Thereafter, Officer Hall put Roberts in the police car. A few minutes later, Roberts knocked on the window to get Officer Hall’s attention. Officer Hall opened the door, and Roberts said: “I was in this female’s room that I didn’t know, but she asked me why I was there, so I just left.” Officer Hall immediately read Roberts his Miranda rights.

¶ 12. The trial court found that Roberts’s statements were voluntarily made. Upon review of the record, it is clear that Roberts was in custody when he was in the back of the police car and told Officer Hall that he had been in the apartment. However, Roberts was not subject to custodial interrogation or the functional equivalent. Instead, Roberts actively sought Officer Hall’s attention by knocking on the window. Roberts made the statements without Officer Hall asking him a question. Because his statements were not the product of custodial interrogation and were made voluntarily, we find that the trial court did not abuse its discretion in admitting Roberts’s statements to Officer Hall into evidence. This issue is without merit.

2. Whether the trial court erred in admitting Roberts’s statements made to Detective Traxler at the police station.

¶ 13. Roberts argues that his statements to Detective Traxler were involuntary and that they should have been suppressed because: (1) he was intoxicated; (2) Detective Traxler threatened him; and (3) Detective Traxler failed to record his statements with a video camera or audio recorder. After the pretrial hearing, the trial court denied Roberts’s motion to suppress his statements to Detective Traxler.

¶ 14. The circuit judge “enjoys a considerable amount of discretion as to the relevancy and admissibility of evidence.” Shearer v. State, 423 So.2d 824, 826 (Miss.1982). We will not reverse the ruling of a circuit judge unless he abused his discretion and caused the accused to experience prejudice. Id. The Mississippi Supreme Court has held:

Regardless of the number of appellate judges who now, or in the future, review this case, the trial judge in this case is the only one amongst the members of the judiciary who will ever have the opportunity to not only hear the testimony, but to also observe the demeanor of the witnesses as they testified at the suppression hearing. We thus afford the appropriate deference to the trial judge since [he] was the ultimate fact-finder based on disputed testimony offered at the suppression hearing.

Glasper v. State, 914 So.2d 708, 720 (¶ 28) (Miss.2005).

¶ 15. In O’Halloran v. State, 731 So.2d 565, 571 (¶ 19) (Miss.1999), a criminal defendant argued that his confession was involuntary because he was intoxicated. The supreme court held:

The voluntariness of a waiver, or of a confession, is a factual inquiry that must be determined by the trial judge from the totality of the circumstances. Further, where there is conflicting evidence on a confession’s admissibility, this Court will not disturb the court’s findings “unless it appears clearly contrary to the overwhelming weight of the evidence.” No one factor is dispositive in the totality of circumstances test. “Indeed, intoxication or sickness does not automatically render a confession involuntary. The admissibility of a confession depends upon the degree of intoxication.”

Id. at (¶ 18) (internal citations omitted). The court held that the trial court’s order denying William Joseph O’Halloraris motion to suppress his statement was not against the overwhelming weight of the evidence. Id. at 571 (¶ 20). Specifically, the court found that three officers testified that O’Halloran appeared sober and did not smell of alcohol when he gave his incriminating statements. Id. at (¶ 19). The court also concluded that O’Halloran had to wait approximately an hour and a half before he was questioned. Id.

¶ 16. Like the officers in O’Hallo-ran, both Officer Hall and Detective Trax-ler testified that: Roberts did not smell of alcohol; he was coherent; and he appeared sober when he gave his statements. Also, the trial court concluded that Roberts testified clearly about the night’s events and that the defense offered no proof about Roberts being drunk, except through Roberts’s unsubstantiated testimony. After applying O’Halloran to the facts of this case, no reversible error exists because the trial court’s decision was not against the overwhelming weight of the evidence.

¶ 17. Roberts also claims that Detective Traxler threatened that he would charge Roberts with burglary if Roberts did not give a statement at the police station. In Carley v. State, 739 So.2d 1046, 1050 (¶ 16) (Miss.Ct.App.1999) (citations omitted), we noted that:

The privilege against self-incrimination secured by the Fifth and Fourteenth Amendments to the U.S. Constitution and by Article 3, § 26 of the Mississippi Constitution renders an involuntary confession inadmissible. When the volun-tariness of a confession is put in issue, the burden falls on the State to prove the voluntariness of the confession beyond a reasonable doubt. The State meets that burden by offering the testimony of those individuals having knowledge of the facts that the confession was given without threats, coercion, or offer of reward.

¶ 18. Detective Traxler testified that he did not threaten Roberts. Officer Hall and Detective Traxler each read Roberts his Miranda rights. Roberts signed a waiver of his Miranda rights, and in his own handwriting, Roberts wrote his statement. Roberts offered only assertions and no evidence showing that he was threatened. In light of the evidence, we find that the State proved the voluntariness of Roberts’s statement beyond a reasonable doubt.

¶ 19. Finally, Roberts contends that his statement was not properly recorded and that law enforcement must record confessions using video cameras or audio recorders. This equipment may assist the trial court’s fact finding and may prohibit many frivolous appeals. However, the use of such equipment is not presently required under Mississippi law, and this Court does not have the authority to mandate such a change. See Dobbs v. State, 726 So.2d 1267, 1270 (¶ 7) (Miss.Ct.App.1998). Therefore, this is an issue better left to the Mississippi Legislature or the Mississippi Supreme Court.

¶ 20. We find that the trial court’s determination that Roberts’s confession was voluntary is not against the overwhelming weight of the evidence. Therefore, this issue has no merit.

3. Whether the prosecutor made improper dosing arguments.

¶21. In closing argument, the prosecutor stated: “They want answers; they can ask them. They have the subpoena. They can subpoena them and have them here. They don’t want to answer.” Roberts’s counsel objected and asked for a mistrial. Roberts argues that the prosecutor’s closing argument was improper because he commented on Roberts’s failure to testify.

¶ 22. In Weathersby v. State, 769 So.2d 857, 861 (¶ 16) (Miss.Ct.App.2000), the defendant argued that the prosecution commented on his failure to testify because the prosecutor during closing argument stated, “there is no defense. There is no evidence to the contrary.” In Weathersby, we stated that “a prosecutor may not, even indirectly, comment adversely on the defendant’s failure to testify in his own defense. [However], the court has found that adverse comments on the defendant’s failure to present any defense at all are not a prohibited form of argument to the jury.” Id. at (¶ 17) (citations omitted). We went on to hold:

the prosecution[’s] comment went to the total lack of evidence from the defense to contradict the proof introduced by the prosecution. On the facts of this case, such evidence could have been in the form of testimony from persons other than the defendant — one such example being an alibi witness — and we do not conclude, for that reason, that the prosecution was trying, by innuendo, to stress to the jury that the defendant did not elect to testify in his own defense to deny his involvement in the crime. For that reason, we do not find the comments to be the ground for reversing the convictions in this case.

Id. at (¶ 18).

¶ 28. Here, the prosecutor commented on the total lack of evidence presented by the defense to contradict the proof introduced by the prosecution. Defense counsel could have introduced evidence in the form of testimony other than testimony from Roberts — one example being an alibi witness. The prosecutor’s comments on Roberts’s failure to provide any evidence to contradict the prosecution’s evidence were not prohibited. Accordingly, we do not find the prosecutor’s comments to be grounds for reversing the conviction in this case. This issue is without merit.

I. Whether the trial court erred in denying Roberts’s motion for a judgment notwithstanding the verdict or, in the alternative, a new trial.

¶ 24. Roberts argues that the State failed to prove all elements of the charge of burglary. Specifically, he claims that there was no direct evidence showing that Roberts had the intent to commit a crime inside Ellis’s apartment.

¶ 25. On a motion for a new trial, we determine whether the jury verdict is against the overwhelming weight of the evidence. Montana v. State, 822 So.2d 954, 967 (¶ 61) (Miss.2002). There, the court concluded that:

this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the trial court has abused its discretion in failing to grant a new trial. Only in those cases 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.

Id. at 967-68 (¶ 61). Finally, it must also be remembered that it is the duty of the jury to assess the credibility of witnesses. Smith v. State, 821 So.2d 908, 910 (¶4) (Miss.Ct.App.2002).

¶26. Burglary of a dwelling requires two elements: (a) unlawful breaking and entering, and (b) intent to commit a crime therein. Moton v. State, 999 So.2d 1287, 1292 (¶ 16) (Miss.Ct.App.2009) (citations omitted). Here, the breaking and entering was proven through the three girls’ testimonies. Roberts was caught inside Ellis’s apartment. All three girls testified that: none of them went to the party that Roberts claimed to have been at; the doors were closed before they went to bed; they were the only people in the apartment before they went to bed; no one invited anyone else to stay; and no one knew Roberts. Roberts told Officer Hall that he was in a girl’s apartment and that he did not know the girl. Then, Roberts told Detective Traxler that he walked home with the girls after a party, and one girl allowed him to stay in the apartment that night.

¶ 27. Nevertheless, since no item of value from the apartment was found on Roberts, he claims that the State failed to prove intent. When a defendant is charged with burglary:

The rule requiring the State to set out the elements of the crime “intended” to have been committed for the purpose of identifying the crime with certainty, does not mean, however, that the State is required to prove each element of the “intended crime” with the same particularity as is required when a defendant is charged only with the crime intended.

Newburn v. State, 205 So.2d 260, 266 (Miss.1967).

¶ 28. “[A]ll the proof need not be direct and the jury may draw any reasonable inferences from all the evidence in the case.” Campbell v. State, 278 So.2d 420, 423 (Miss.1973). Thus, intent may be proven by circumstantial evidence. Stinson v. State, 375 So.2d 235, 236 (Miss.1979). The supreme court has held:

Some presumptions are to be indulged in against one who enters a building unbidden at a late hour of night, else the burglar caught without booty might escape the penalties of the law. People are not accustomed in the nighttime to enter homes of others, when asleep, with innocent purposes. The usual object is theft; and this is the inference ordinarily to be drawn in the absence of explanation from breaking and entering at night accompanied by flight when discovered, even though nothing has been taken.

Brown v. State, 799 So.2d 870, 872 (¶ 8) (Miss.2001) (citations omitted). Also, “[Un-tent is an emotional operation of the mind, and it is usually shown by acts and declarations of the defendant coupled with facts and circumstances surrounding him at the time. A defendant’s intention is manifested largely by the things he does.” Newburn, 205 So.2d at 265.

¶ 29. It was the jury’s duty to assess the credibility of each witness and to draw its own conclusions from the circumstantial evidence. In light of the witnesses’ testimonies and evidence presented, the logical inference is that Roberts entered Ellis’s apartment with the intent to steal. The jury’s finding that Roberts had the intent to commit a crime once inside Ellis’s apartment is not against the overwhelming weight of evidence. Accordingly, this issue is without merit.

5. Whether Roberts was denied effective assistance of counsel.

¶ 30. To prove ineffective assistance of counsel, Roberts must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Roberts to show both prongs. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

¶ 31. Furthermore, the merits of an ineffective-assistance-of-counsel claim on direct appeal should be addressed only when “(1) the record affirmatively show[s] ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Colenburg v. State, 735 So.2d 1099, 1101 (¶ 5) (Miss.Ct.App.1999). If this Court does not reverse on other grounds and is unable to conclude that the defendant received ineffective assistance of counsel, it should affirm “without prejudice to the defendant’s right to raise the ineffective assistance of counsel issue via appropriate post-conviction proceedings.” Id. Review on direct appeal of an ineffective-assistance-of-counsel claim is confined strictly to the record. Id. at 1102 (¶ 6).

¶ 32. Roberts asserts that his counsel was ineffective due to his failure to present evidence during trial of Roberts’s mental illness. Roberts claims that testimony and evidence that he was a schizophrenic and had delusions of grandeur would have entitled him to a defense of insanity. He contends that his counsel did not bother looking at his medical records until the day before his sentencing.

¶ 33. It is unclear from the record before us that his assertions amount to a deficiency of counsel’s performance as Roberts claims. The decision of whether or not to use defendant’s medical history as part of the defense falls under the ambit of trial strategy, and this Court will only under exceptional circumstances second guess counsel on matters of trial strategy.

¶ 34. Further, Roberts has not proven that the outcome of the trial was prejudiced by his counsel’s failure to introduce evidence of his insanity, especially in light of the overwhelming weight of evidence against him, including Roberts’s own statement that he was in the apartment and the girls’ testimonies.

¶ 35. We find that the record before us on appeal is insufficient to affirmatively show ineffective assistance of counsel of constitutional dimensions. As such, we deny relief on this issue without prejudice so that Roberts may present an ineffective-assistance-of-counsel claim in a motion for post-conviction collateral relief, if he so chooses.

6. Whether cumulative error deprived Roberts of his constitutional right to a fair trial.

¶ 36. Finally, Roberts argues that this Court should grant his requested relief based on the cumulative errors committed at trial. However, we have found that all of Roberts’s assignments of error are without merit. “As there was no reversible error in any part, so there is no reversible error to the whole.” McFee v. State, 511 So.2d 130, 136 (Miss.1987). Accordingly, this issue is also without merit.

¶ 37. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY OF CONVICTION OF BURGLARY OF AN OCCUPIED DWELLING AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS SUSPENDED, TWENTY YEARS TO SERVE, AND FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT. IRVING, J., CONCURS IN RESULT ONLY.


text:
    Christine LANG, Appellant/Cross-Appellee v. MISSISSIPPI BAPTIST MEDICAL CENTER and Reciprocal of America (Mississippi Insurance Guaranty Association a/k/a “MIGA”), Appellees/Cross-Appellants.
    No. 2009-WC-01540-COA.
    Court of Appeals of Mississippi.
    Nov. 2, 2010.

      John Hunter Stevens, Jackson, attorney for appellant.
    Douglas R. Duke, Jackson, attorney for appellees.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   ISHEE, J„

for the Court:

¶ 1. Christine Lang, a long-term licensed practical nurse (LPN), was injured on the job at Baptist Medical Center (Baptist) in Jackson, Mississippi, and the Mississippi Workers’ Compensation Commission (Commission) awarded her temporary total disability benefits, found that she suffered a 20% diminishment of her wage-earning capacity, and awarded her permanent partial disability benefits. Baptist and Baptist’s insurance carrier, Reciprocal of America, (collectively, the employer and carrier), along with Lang, appealed the Commission’s order to the Circuit Court for the First Judicial District of Hinds County, which affirmed the Commission’s decision. Lang and the employer and carrier now appeal to this Court. Lang seeks to have the more generous ruling of the administrative judge (AJ) restored, claiming the Commission’s decision was not supported by substantial evidence. The employer and carrier base their appeal primarily on their position that the Commission should not have ordered permanent partial disability benefits after finding that Lang had not made the required work-search effort to return to work. They also argue Lang did not sustain an on-the-job injury.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. In 1979, after earning her GED and an LPN, Lang began her employment with Baptist and continually worked there until she was disabled in 2002. Lang, who was fifty-two years old at the time of the accident, was earning a wage of $641 per week when the subject accident occurred. Lang stated that prior to the accident, it was her intention to work three more years at Baptist and take early retirement at age fifty-five. ■

¶ 4. Lang testified that on January 31, 2002, she was assisting a 300-pound patient who was awaiting a procedure at Baptist. The patient was scheduled to be next in line for the procedure, but suddenly, the patient needed to use the restroom and required assistance. Lang said Baptist had a lift team, but it sometimes took them an hour to respond to a call. Accordingly, she decided to take the patient to the restroom so the patient would not lose her place in the treatment line. Lang said she asked the patient how many people usually helped her to the bathroom. The patient replied that only one person usually assisted her, and Lang stated that she believed the patient was being truthful.

¶ 5. Lang took the patient to the restroom and was assisting the patient in undressing when the patient lost her balance and fell onto Lang’s shoulder. Lang said she heard her back pop after the patient landed on her. Lang testified that at first she did not realize that.she had been injured because she felt no immediate pain. However, she did fill out a report regarding the injury and noted that her back had popped when the patient landed on her shoulder.

¶ 6. After the 2002 accident, Lang eventually experienced lower-back pain from the initial shoulder injury. She was seen by Dr. John Neill who tried conservative treatment, removing her from work for several days and giving her pain medication. Dr. Neill testified that Lang had leg and back pain which could have been caused by the work accident. In Dr. Neill’s deposition, he stated: “I think that her statements that she was lifting a 300-pound patient and had back pain develop after that with radiation into her legs, I think it is perfectly reasonable and true to say that an event like that could precipitate [her injuries].”

¶ 7. Receiving no relief, Lang was referred to another doctor who gave her three steroid pain injections. When the injections did not relieve her pain, she was referred to Dr. Rahul Vohra in March 2003. Dr. Vohra, a physician who specializes in physical medicine and rehabilitation, diagnosed Lang’s pain as originating from lumbar spasms with a decreased lumbar range of motion, tenderness over her sacroiliac joints, and some age-related spondylosis. He placed her on medication and ordered her to participate in physical therapy, which she did. Dr. Vohra continued to treat her once every three months for pain-medication management. A functional-capacity evaluation was. performed on Lang, which Dr. Vohra testified showed that she needed to be restricted to sedentary light duty work. Dr. Vohra testified that light duty meant she could lift only up to twenty pounds, could kneel frequently, could crouch occasionally, and would be able to sit and stand for up to thirty minutes at a time. He said she reached maximum medical improvement on July 28, 2003, and he assigned a 5% permanent partial medical impairment to the body as a whole. Other medical proof came from a pain-management anesthesiologist who testified by affidavit that upon examination, he diagnosed Lang with bilateral rad-icular pain, but since Lang had received several steroid injections with little success, he did not perform any more injections. At the time of the hearing before the Commission in January 2007, Lang was still being treated by Dr. Vohra every month for pain management, and she was taking a variety of medications.

¶ 8. The testimony conflicted regarding Lang’s attempt to regain her former job. Lang testified that after reaching maximum medical improvement, she went back to Baptist in the summer of 2003 and interviewed with her former supervisor, Libby Lampley, who knew Lang for most of her working years. Lang testified that Lampley reviewed her restrictions and told her that Baptist did not have any employment for her at that time. Lang said she never heard from Baptist again. However, Lampley testified that when Lang was interviewed, Lampley reviewed Lang’s restrictions and made her the offer of her former job at the same salary, stating that Baptist would “be glad to work with her in any way [it] could” regarding her restrictions of sitting and standing. However, Lampley stated that Lang turned down the offer. The net result of both testimonies is that Lampley offered Lang her job back at Baptist with modifications included for Lang’s injuries, but Lang declined the offer because she could not sit or stand for any length of time without discomfort.

¶ 9. A vocational rehabilitation professional, Jennifer Oubre, was hired by the employer and carrier to assist Lang in finding employment. Oubre testified regarding her job-search efforts on behalf of Lang. She stated that during a three-year period she found sixteen jobs with eight employers which fit Lang’s qualifications and restrictions. She provided this information to Lang through Lang’s attorney. It was Oubre’s opinion that Lang had not made a reasonable effort to find employment. However, it was Lang’s testimony that she applied for every job that Oubre had referred to her. Lang said she had one job offer from the University of Mississippi Medical Center for a full-time LPN, but after she told the employer of her restrictions, the offer was withdrawn. On cross-examination, Oubre admitted that in formulating her opinion about Lang’s lacking job-search efforts, she did not take into account approximately fifty jobs which Lang had applied for on her own without the assistance of Oubre.

¶ 10. The AJ found that Lang had incurred a compensable work-related injury as a result of the January 31, 2002, incident. Further, the AJ ruled Lang had suffered a 50% loss of wage-earning capacity and awarded indemnity and medical benefits. The AJ ordered the employer and carrier to pay temporary total disability benefits in the amount of $322.90 per week commencing on January 31, 2002, until July 28, 2003, and permanent partial disability benefits in the amount of $213.68 per week beginning July 23, 2003, and concluding after the statutory maximum of 450 weeks. The employer and carrier were given credit for all the wages and benefits already paid to Lang.

¶ 11. The employer and carrier appealed to the Commission, which upheld the AJ’s finding of'compensability for the injury, as well as the award of temporary total disability benefits and payment for the medical treatment. However, the Commission reduced Lang’s loss of wage-earning capacity from the AJ’s determination of 50% to 20% after finding that Lang’s job-search efforts were “limited in both time and in scope.” However, the Commission recognized that as a result of the injury, Lang had lost some of the functions necessary “to carry out 100% of her previous duties as an LPN.” Further, the Commission credited Lang’s twenty-three years of employment as an LPN with Baptist and noted that she continues to suffer from chronic pain for which she takes medications that have a sedating effect. The Commission reduced the amount of the benefit and ordered the employer and carrier to pay permanent partial disability benefits in the amount of $85.47 per week beginning on July 29, 2003, and continuing for 450 weeks. In the meantime, Lang began receiving social-security disability benefits.

¶ 12. After the circuit court upheld the Commission’s decision, both Lang and the employer and carrier appealed to the Mississippi Supreme Court which deflected the appeal to this Court.

I.Lang’s Appeal

¶ 13. Lang raises three issues on appeal:

1. Whether the Commission’s decision is contrary to law and against the overwhelming weight of the evidence.
2. Whether the Commission erred in failing to award disability benefits and in failing to affirm the AJ’s order.
3.Whether the Commission’s decision is against the intent and purpose of the Workers’ Compensation Act inasmuch as it ignores the liberal construction in favor of compensation.
II. The Employer and Carrier’s Cross-Appeal

¶ 14. The employer and carrier raise two issues on cross-appeal:

1. Whether the claimant made reasonable attempts at employment following her reaching maximum medical improvement.
2. Whether the claimant’s condition is related to a work-related injury.

STANDARD OF REVIEW

¶ 15. Our analysis begins by noting our limited standard of review in workers’ compensation appeals. The Commission is the fact-finder in a workers’ compensation case. Lott v. Hudspeth Ctr., 26 So.3d 1044, 1048 (¶ 12) (Miss.2010). An appellate court will overturn the Commission’s decision only for an error of law or an unsupported finding of fact. Total Transp., Inc. of Miss. v. Shores, 968 So.2d 400, 403-04 (¶ 15) (Miss.2007). Reversal is proper only when a Commission’s decision is not based on substantial evidence, or it is based on an erroneous application of the law. Smith v. Jackson Constr. Co., 607 So.2d 1119, 1124 (Miss.1992). Our duty on appeal is to determine if there is a quantum of credible evidence that supports the Commission’s decision. Id. However, “[we] will reverse when the findings of the Commission are based on a mere scintilla of evidence that goes against the overwhelming weight of evidence.” DiGrazia v. Park Place Entm’t, 914 So.2d 1232, 1236 (¶ 8) (Miss.Ct.App.2005) (citing Johnson v. Ferguson, 435 So.2d 1191, 1194-95 (Miss.1983)).

DISCUSSION

I. Wage-Earning Capacity

¶ 16. The crux of Lang’s appeal is that the AJ was correct when she found that Lang had sustained a 50% loss of wage-earning capacity as a result of the injury and that the Commission erred by lowering the loss of wage-earning capacity to 20%. Lang argues the Commission indiscriminately created the 20% figure and had no basis for making such an award. Lang argues the jobs that Oubre, the vocational therapist, presented to Lang averaged $7.48 an hour or roughly $300 per forty-hour work week. Lang argues that roughly $300 per week represents a loss in her wages of more than 50%-53.3%, to be exact. Lang further argues that Oubre failed to find any jobs for Lang which were anywhere near the $12.82 per-hour wage or 20% loss of wage-earning capacity to which the Commission found she was entitled. Lang testified that she applied for all of the jobs presented to her by Oubre, but she was not hired for any of them. The only authority Lang cites in support of her position are cases for the general proposition that doubtful workers’ compensation cases should be resolved in favor of compensation to satisfy the beneficial and remedial purpose of the workers’ compensation law. See, e.g., Big “2” Engine Rebuilders v. Freeman, 379 So.2d 888, 889-890 (Miss.1980).

¶ 17. The employer and carrier on cross-appeal claim it was error for the Commission to award Lang permanent partial benefits because it found she had failed to make reasonable efforts to find employment following her release at maximum medical improvement. Since Lang’s issue and the employer and carrier’s issue are interrelated, we will address them together.

¶ 18. Disability, for purposes of workers’ compensation cases, is defined as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and extent thereof must be supported by medical findings.” Miss.Code Ann. § 71-3-3® (Rev. 2000). The Commission’s determination of disability involves a finding of fact; thus, the appellate court uses the “substantial evidence” standard of review. Ga. Pae. Corp. v. Taplin, 586 So.2d 823, 828 (Miss. 1991). “A conclusion that the employee is disabled rests on a finding that the claimant could not obtain work in similar or other jobs and that the claimant’s unem-ployability was due to the injury in question.” Id. (citing V. Dunn, Mississippi Workmen’s Compensation § 72.1 (3d ed.1982)). The claimant has the burden of proof to make out a prima facie case of disability by showing she made a reasonable effort to find other employment. Id. When this is done, the focus shifts to the question of whether the effort was reasonable under the prevailing circumstances. Id. The employer then assumes the burden to rebut or refute the claimant’s evidence by proving that the claimant’s job-search efforts were a “mere sham or [an] unreasonable effort.” Id.

¶ 19. Thus, the claimant must show there has been a diminishment in her wage-earning capacity. Lott, 26 So.3d at 1049 (¶ 16). From the earliest interpretations of workers’ compensation law, the supreme court has avoided the comparison of actual earnings before the injury to post-injury earnings as a means to determine wage-earning capacity. Karr v. Armstrong Tire & Rubber Co., 216 Miss. 132, 137, 61 So.2d 789, 791 (1953). “Our statute does not test the earning capacity by the comparative wages received by [an] applicant before and after the injury. It is not a comparison of actual wage with actual wage.” Id. Instead the amount of the benefit is figui-ed on a percentage of the claimant’s weekly wages at the time of the injury as compared to her wage-earning capacity in similar or other jobs thereafter. Id. In determining the “reasonableness” of a claimant’s efforts in seeking employment, the following are considered: “job availability, economics of the community, the claimant’s skills and background, and the nature of the disability.” Lott, 26 So.3d at 1049 (¶ 15). Said another way, the factors which are considered in determining loss of wage-earning capacity include “the amount of education and training which the claimant has had, his inability to work, his failure to be hired elsewhere, the continuance of pain, and any other related circumstances.” McGowan v. Orleans Furniture Inc., 586 So.2d 163, 167 (Miss.1991). “In other words, the determination should be made only after considering the evidence as a whole.” Id. With these principles in mind, we turn to the facts of Lang’s appeal.

¶ 20. The Commission found that Lang’s job-search efforts were limited, but it decided in her favor based upon the extent that the on-the-job injury had on her wage-earning capacity. The Commission said that Lang could no longer expect to earn her pre-injury wage of $641 per week because the pre-injury wage resulted from the fact that she was a twenty-three-year employee of Baptist. The Commission noted the difficulty Lang would have in obtaining employment “starting anew in the labor market at her age, with a GED and an LPN license, and [with the] restrictions which limit her to light[-]duty [work].”

¶ 21. As to the requirement of continuing pain, the Commission said Lang’s testimony provided credibility that she continues to suffer with chronic back pain, for which she takes pain medication that often has a sedating effect. The Commission took notice of the fact that Lang had rejected her old job when it was offered to her in the summer of 2003 at the same pay and with the employer willing to make accommodations. Lang’s former supervisor, Lampley, testified that she told Lang, after reviewing her restrictions, that Baptist would accommodate those restrictions when required and that Lang would be rehired at her former pay. However, Lang told Lampley she did not think she was physically able to do her old job. The Commission found that Lang had testified “credibly” that her condition at the time prevented her from assuming her old job duties. Lang said, at that time, her pain was not under control, and she had extreme difficulty walking through the hallways or sitting or standing for any length of time. Lampley, who had testified earlier that she had known Lang for some time and that Lang was a quality LPN, testified that she observed that Lang was uncomfortable sitting and standing.

¶ 22. Lang made an effort to find other employment. The record shows she applied with twenty-four employers for thirty jobs, and she was registered with the job-seeker services of the Mississippi Department of Employment Security, but she had no success. While Lang made some effort to find other employment, the Commission, as the fact-finder, found that her efforts were insufficient to warrant a 50% loss of wage-earning capacity and reduced the figure to 20%. The Commission, thus, cut the amount of the benefit and ordered that Lang be paid permanent partial disability benefits in the amount of $85.47 per week from July 29, 2003, and continuing for a period of 450 weeks. The Commission applied the factors of wage-earning capacity by reviewing Lang’s education and training as an LPN and her inability to work and be hired elsewhere and noted that she had continuing pain which required her to take strong pain medications, which had a sedating effect upon her. When the Commission considered this evidence as a whole, it found only a 20% diminishment in wage-earning capacity. We find the Commission’s decision on this issue is supported by substantial evidence and that the Commission correctly applied the law. Therefore, we find no error regarding this issue on direct or cross-appeal.

II. Work-Related Injury

¶ 23. Lang’s and the employer and carrier’s other arguments are essentially the same and ask us to determine if there was substantial evidence to support the finding that Lang had suffered an on-the-job injury. The employer and carrier claim Lang failed to prove that her injury was the result of the patient falling on her and causing her back to pop. We find this argument without merit.

¶ 24. Workers’ compensation benefits shall be payable for a disability from an injury “arising out of and in the course of employment, without regard to fault as to the cause of the injury.” Miss.Code Ann. § 71-3-7 (Rev.2000). For the disability to be compensable, it must arise out of and in the course of employment. Miss.Code Ann. § 71-3-3(b) (Rev.2000). Thus, we must determine if substantial evidence supports a finding that Lang’s claimed disability is work-related. The supreme court stated:

The words ... used in the statute: “arising out of and in the course of’ have been held to present an inquiry whether the risk which has given rise to the injury is “reasonably incident to the employment,” not whether the work was the proximate cause of the injury. The injury arises out of and in the course of the employment if the employment aggravates, accelerates, or contributes to the disability as opposed to being the sole or principal cause.

Fought v. Stuart C. Irby Co., 523 So.2d 314, 318 (Miss.1988) (internal citations omitted).

¶ 25. The evidence shows that Lang heard her back pop after a patient fell on her shoulder while she was assisting the patient to use the restroom. Although she did not immediately experience pain, she did realize the seriousness of the blow and filed an incident report with her supervisor. Gradually, she began experiencing back and leg pain. She returned to Dr. Neill, the neurosurgeon who had performed a previous back surgery on her in 2001. He prescribed rest and pain medications, which did not help. She was then referred to Dr. Vohra, another pain-management specialist, who diagnosed her with lumbar spasms and a decreased lumbar range of motion. He had her perform a functional-capacity test, which showed she should restrict her work to sedentary light-duty work. Dr. Neill was asked by the attorney for the employer and carrier if he could make a causal relationship between Lang’s injuries and the incident wherein a patient had landed on Lang’s shoulder. Dr. Neill replied:

I don’t know and have no way to say that it’s not related to her injury in January. I can only take what the patient says as to how this all started. She certainly has a degenerative disk and other reasons she could have back pain, and they are playing a part in this. But is her disabling problem, was it triggered by this injury in January? She says it was. I don’t have any way to dispute that.

¶ 26. On cross-examination, Dr. Neill was asked within a reasonable degree of medical probability if he would concur with the association of the event and the onset of Lang’s symptoms. He replied:

I have no reason on the basis of my history and exam to dispute anything that she says. Was there an event that occurred at work? Only Ms. Lang knows. I don’t know. But I have nothing — I can’t sit here and say this didn’t happen. And an event like that, with her back, with her degenerative disk disease and other changes, could certainly precipitate a pain like this.

¶ 27. Dr. Vohra treated her for months with physical therapy and pain-medication management and was still managing her pain at the time of the hearing before the Commission in January 2007.

¶ 28. Dr. Vohra was questioned by Lang’s counsel as follows:

Q. Dr. Vohra, was the history obtained by you from Ms. Lang and the injury mechanism consistent with your diagnosis?
A. Yes, sir.
Q. Based upon the history and the injury of mechanism, would you state that your diagnosis was caused or aggravated or accelerated by the lifting incident within a reasonable degree of medical probability?
A. Based on the history, yes, sir.

A claimant does not have to prove with absolute medical certainty that her work-related injuries were the cause of her disability. The medical evidence is sufficient if it supports, even if it does not fully prove, a finding of disability. The Mississippi Supreme Court has held that “disability need not be proved by medical testimony as long as there is medical testimony which will support a finding of disability.” Hall of Miss., Inc. v. Green, 467 So.2d 935, 938 (Miss.1985).

¶ 29. A medical doctor will rarely, if ever, be able to confirm as a witness that an on-the-job injury happened to a claimant in the manner the claimant states. The doctor will not be present at the time of injury. Instead what the doctor’s testimony does is confirm that the injury, which he has diagnosed the patient with, is consistent with the trauma the patient has described to the physician.

¶ 30. Both of Lang’s doctors testified that Lang’s injuries were consistent with the injury she described wherein the patient fell onto her shoulder, her back popped, and pain occurred afterwards in her hip, leg, and back. The employer and carrier offered no medical testimony to prove otherwise. Therefore, we find substantial support for the Commission’s decision that Lang suffered an accident on the job which caused her to have a compensa-ble disability. Thus, there is no merit to this assignment of error.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED ON DIRECT AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT/CROSS-APPELLEE AND ONE-HALF TO THE APPELLEES/CROSS-APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . The employer lost this documented report. Lang completed another copy relaying how she suffered leg and back injuries after the patient fell on her shoulder. The employer and carrier investigated and accepted the claim as compensable and paid temporary disability benefits from May 13, 2002, to February 24, 2004. Lang's medical treatment bills were also paid by the carrier.

      . In the AJ's decision portion of her Summary and Evaluation of Relevant Evidence, the AJ states that after the injuty from the falling patient, Lang "underwent surgery by the esteemed neurosurgeon, John Chalmers Neill.” This is an erroneous statement of fact. Dr. Neill performed a previous back surgery on Lang in June 2001, several months before she suffered the on-the-job injury that is at issue in this case. Lang stated that the back surgery was not related to her work and that she was released to go back to work without restrictions. She testified that she had no problems doing her job until the subject accident, when the patient fell on her. The testimony of Lang and Dr. Neill was that she sought his help with the injury at issue and that he tried conservative treatment by removing her from work and giving her pain medication, which proved unsuccessful. The Commission did not directly correct the factual error of the AJ, but instead, the Commission described Lang’s treatment in a way that corrected the error. The Commission stated in part: "The Claimant in this matter sustained a compensable back injury on or about January 31, 2002.... She was treated by Dr. John Neill, Dr. Rahul Vohra, and others, and was placed at maximum medical improvement by Dr. Vohra on July 28, 2003[,] with a 5% function impairment rating.” While Lang was treated by Dr. Neill for the injury in question, he did not perform surgery as a result of the injury in question, and the Commission’s decision corrects the earlier misstatement of facts by the AJ.


author: LEE, P.J.,

text:
    Louise REID, Appellant v. MISSISSIPPI STATE HOSPITAL/MISSISSIPPI DEPARTMENT OF MENTAL HEALTH, Appellee.
    No. 2009-CC-01670-COA.
    Court of Appeals of Mississippi.
    Feb. 1, 2011.
    Levi Boone III, Cleveland, attorney for appellant.
    Gene W. Rowzee Jr., attorney for appel-lee.
   LEE, P.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Louise Reid’s employment was terminated by the Mississippi State Hospital for alleged misconduct that occurred at the Cleveland Crisis Intervention Center. Reid alleges she was terminated because of her race. She appealed her termination to the Employee Appeals Board (EAB). A hearing was held, and an order was entered upholding Reid’s termination. The order was affirmed by the full EAB.

¶ 2. Reid then appealed to the Circuit Court of Hinds County. The circuit court affirmed the decision of the EAB.

¶ 3. Reid now appeals, arguing that the trial court erred in finding that she was not the subject of racial discrimination. Finding no error, we affirm the decision of the EAB.

FACTS

¶ 4. Reid, an African American female, was employed as a family nurse practitioner at the Cleveland Crisis Center from October 2005 through October 11, 2007. She was a non-state service employee. Two fellow employees made the following allegations against Reid: (1) she verbally abused and threatened a patient; (2) she wrote a “cocktail” order for a combination of drugs to sedate a patient; (3) she entered the wrong date on a medical chart; (4) she allowed a social worker to use her credit card to pay for a moving truck for a patient; and (5) she authorized medication to be given to a fellow employee. Reid was terminated after an investigation.

STANDARD OF REVIEW

¶ 5. The decision of an employee appeals board will be upheld unless it is: “(a) [n]ot supported by any substantial evidence; (b) [a]rbitrary or capricious; or (c) [i]n violation of some statutory or constitutional right of the employee.” Miss.Code Ann. § 25-9-132 (Rev.2006).

¶ 6. An appellate court will not disturb a decision of an administrative agency if substantial evidence supports that agency’s finding, and the scope of review is limited to the factual findings of the agency. Walters v. Miss. Dep’t of Econ. and Cmty. Dev., 768 So.2d 893, 895 (¶ 8) (Miss.2000). This Court “may neither substitute its own judgment for that of [the] administrative agency which rendered the decision nor reweigh the facts of the case.” Miss. Transp. Comm’n v. Anson, 879 So.2d 958, 964 (¶ 18) (Miss.2004).

DISCUSSION

¶ 7. Reid was a non-state service employee of the Mississippi State Hospital. She alleges that her employment was terminated because she is an African American. The rights of non-state service employees have been explained by this Court as follows:

Non-state service employees are those “employees serving in state departments, agencies, or institutions that are excluded from state service.” Miss. Code Ann. § 25-9-107 (Rev.2006). A key distinction between state service employees and non-state service employees is that state service employees may only be terminated for good cause, after written notice and a hearing. Miss. Code Ann. § 25-9-127 (Rev.2006). However, non-state service employees, including probationary state service employees during the first twelve months of employment, are not afforded this protection. Id. Non-state service employees may be terminated, without notice, for any reason other than “on the basis of race, color, creed, sex, religion, national origin, age, disability, or political affiliation; and/or a violation of a right otherwise specifically protected by the U.S. Constitution or other law.” Employee Appeals Board Administrative Rules, July 2003, Appendix A, Grievable Issues, P. 19 section D.

Miss. Dep’t of Transp. v. Rutland, 965 So.2d 696, 699-700 (¶3) (Miss.Ct.App.2007).

¶ 8. The United States Supreme Court has established a three-prong test to prove racial discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Gulf Coast Research Lab. v. Amaraneni, 722 So.2d 530, 535 (¶ 21) (Miss.1998). First, the complainant must show a prima facia case of racial discrimination. Id. Second, “[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id. If the employer succeeds “in carrying its burden of production, the McDonnell Douglas framework — with its presumptions and burdens — is no longer relevant.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 510, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Third, the plaintiff is then required to prove by a preponderance of the evidence “ ‘that the defendant intentionally discriminated against [him]’ because of his race.” Id. at 511, 113 S.Ct. 2742 (citation omitted).

¶ 9. In order to prove a prima facia case of intentional racial discrimination, Reid must prove that she:

(1) is a member of a protected group; (2) was qualified for the position at issue; (3) was discharged or suffered some adverse employment action by the employer; and (4) was replaced by someone outside his [or her] protected group or was treated less favorably than other similarly situated employees outside the protected group.

McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir.2007).

¶ 10. It is undisputed that Reid is a member of a protected class. It is also undisputed that she was qualified for her position, and she suffered an adverse action by her employer. The only contention on appeal is whether Reid was treated less favorably than other similarly situated employees.

¶ 11. Crosby Tanner, chief investigator of the Mississippi State Hospital, an African American, testified that his office investigated the allegations against Reid. Tanner testified that Reid admittedly made the following statement to a mentally-ill patient: “going to be one more ‘bitch’ and then I’m going to jump across this desk and it’s going to be on.” Reid told another patient to “get out of [her] face.” Reid admitted that she allowed a patient to use her credit card for moving expenses in exchange for cash. She also admitted that she instructed a nurse to give an employee pain medication, although she denied that the medication was intended for a patient. Reid denied the accusation that she yelled at patients; however, Tanner noted that she was asked to stop yelling at one of the investigators. Tanner testified that if a white employee had committed the same offenses as Reid, his recommendation would have been the same.

¶ 12. Dr. Lydia Weisser, clinical director of the Mississippi State Hospital, testified that she held a staff meeting after becoming aware of problems at the Cleveland Crisis Center. Dr. Weisser addressed the use of drug “cocktails” at the meeting. The “cocktails” were a combination of drugs given by injection to provide a chemical restraint of an unruly patient. Dr. Weisser testified that the injection was being used on nearly all admitted patients. She ordered the use of it to stop. Reid admittedly allowed a patient to be given the drug cocktail after being instructed not to do so. Reid contends that Dr. K.A. Hamdan approved all the orders, but sometimes his approval would be after the fact. Dr. Weisser testified that Dr. Ham-dan had not been present at the staff meeting and was subsequently advised to stop using the injections.

¶ 13. Reid argues that two of her fellow employees committed conduct that was similar or worse than her conduct and received no reprimand. First, Reid alleges that Manette Durand, a white female, physically and verbally abused patients, wrote “cocktail” orders without authorization, and made medical-chart errors. Reid admitted that she had no personal knowledge of the allegations against Durand; her knowledge was based on what she overheard about the incidents. Durand is seventy-one years old, and she was working for the Mississippi State Hospital as a certified nurse practitioner. An investigation was conducted by the Department of Safety and Investigative Services into the accusation that Durand slapped a patient. Durand testified that she was trying to prevent a patient from spitting on two other employees, Marcellous Chatman and Sedric Mason, who were on either side of the patient. The patient began hitting his head on the arm of the chair, and Durand put her hands over his ears to hold his head. Durand testified that she did not remember slapping the patient, but she admitted that she put her hand on his cheek to turn his head. Mason testified that he did not see or hear a slap. Chat-man testified that he heard a slap. However, during the initial investigation of the matter, Chatman told investigators that he did not hear a slap. The hearing officer found his initial testimony more credible. Durand denied the allegation that she wrote orders for drug “cocktails.” She testified that she only initiated such “cocktails” when ordered by a physician.

¶ 14. Second, Reid alleges that Dr. Lillian Frankhart, a white female working as a psychologist, violated the rule against fraternizing with patients. Dr. Frankhart admitted that she loaned her personal guitar to a patient for therapeutic purposes. Reid reported Dr. Frankhart’s action to risk management. Dr. Frankhart was not disciplined. Reid argues that Dr. Frank-hart’s loaning of a guitar to a patient was equivalent to her allowing a patient to use her credit card for moving expenses.

¶ 15. Reid argues that Durand and Dr. Frankhart were similarly situated employees outside the protected group, yet they were not disciplined for their actions. Reid argues that her actions were no worse, and she was treated unfairly solely because of her race. The hearing officer found no racial discrimination against Reid. He also found that Durand and Dr. Frankhart’s actions were not comparable to Reid’s actions. He found that Reid’s actions, based on her admissions alone, were sufficient grounds for termination. The hearing officer also noted that the chief investigator assigned to this cause was African American, and many of the witnesses were African Americans.

¶ 16. Reid bore the burden of proving that similarly situated employees outside the protected class were treated more favorably. The EAB found that the employees named by Reid were not similarly situated and upheld Reid’s termination. Based on the facts presented, we find that the decision of the EAB was not arbitrary or capricious. Durand was investigated, and it was determined no further action was necessary. As for the accusation that Dr. Frankhart is a similarly situated employee, it is a stretch to compare her action of loaning a guitar to a patient to Reid’s actions of threatening patients and allowing a patient access to her credit card. We find that the EAB had substantial evidence to support its findings. This issue is without merit.

¶ 17. Before concluding we note that in its appellee brief, the State Hospital asserts that Reid’s appeal to the full EAB was time-barred. As this issue is being raised for the first time on appeal, it will not be addressed by this Court. Miss. Dep’t of Transp. v. Trosclair, 851 So.2d 408, 415 (¶ 19) (Miss.Ct.App.2003).

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

MYERS, P.J., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR. KING, C.J., CONCURS IN RESULT ONLY. IRVING, J., NOT PARTICIPATING.


author: IRVING, J.,

text:
    Michael A. TODD, M.D., Pathology Lab, Inc. and Michael Todd, M.D., P.A., Appellants v. Claude CLAYTON, Appellee.
    No. 2009-CA-01308-COA.
    Court of Appeals of Mississippi.
    Feb. 1, 2011.

      Michael A. Todd, Appellant, pro se.
    Jack F. Dunbar, Jonathan S. Masters, Clarksdale, attorneys for appellee.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court:

¶ 1. Dr. Michael Todd filed a motion for sanctions against Claude Clayton, the attorney for the estate of Judith Clark. Clark’s estate filed a wrongful-death action against Dr. Todd alleging medical malpractice. The deposition of Dr. Todd’s co-defendant, Dr. Patrick Hsu, ultimately absolved Dr. Todd of liability, and the circuit court dismissed Dr. Todd from the case.

¶ 2. Years later, Dr. Todd filed a motion for sanctions against Clayton pursuant to Rule 11 of the Mississippi Rules of Civil Procedure and the Litigation Accountability Act (LAA). The circuit court denied Dr. Todd’s motion for Rule 11 sanctions as time-barred. The circuit court also denied Dr. Todd’s motion for sanctions under the LAA because Clayton had a reasonable hope of success on the claim against Dr. Todd. Feeling aggrieved, Dr. Todd appeals and asserts that the circuit court (1) erred in denying Dr. Todd’s motion for sanctions under Rule 11 as time-barred, (2) erred in denying Dr. Todd’s motion for sanctions under the LAA, (3) showed partiality to Clark’s estate and its attorneys by allowing them to avoid hearings on Dr. Todd’s discovery motions, and (4) erred in failing to rule on those motions.

¶ 3. The circuit court incorrectly found that Dr. Todd’s motion for Rule 11 sanctions was time-barred; nevertheless, we affirm the circuit court’s judgment on other grounds.

FACTS

¶ 4. On February 10, 2000, Dr. Hsu performed a pap smear on Clark. The pap smear detected a cell abnormality, and Clark underwent a hysterectomy on March 27, 2000. Dr. Hsu performed the surgery and submitted tissue removed from Clark to Dr. Todd for evaluation. Dr. Todd’s analysis of the tissue specimen did not detect any invasive cancer. On March 7, 2001, Clark returned to Dr. Hsu complaining of bleeding, and Dr. Hsu discovered a mass, which was later diagnosed as cancerous. Clark died of cancer on September 15, 2002.

¶ 5. On December 31, 2002, Clark’s estate filed a wrongful-death action, alleging medical malpractice against Dr. Todd, Dr. Hsu, and others involved in Clark’s treatment. On January 14, 2004, Dr. Hsu testified in his deposition that even if Dr. Todd had reported the existence of micro-invasive cancer, as Clark’s estate alleged he should have, Dr. Hsu would not have altered Clark’s treatment. Dr. Hsu’s testimony removed the possibility that omissions in Dr. Todd’s report proximately caused Clark’s death.

¶ 6. On April 5, 2004, Dr. Todd filed a motion for summary judgment. In its response to Dr. Todd’s motion, Clark’s estate agreed that Dr. Hsu’s deposition had absolved Dr. Todd of liability. However, the estate argued that it would be unfair to dismiss Dr. Todd and allow Dr. Hsu to argue for apportionment of damages to Dr. Todd at trial. As such, Clark’s estate moved for partial summary judgment prohibiting Dr. Hsu from apportioning fault to Dr. Todd. On January 27, 2005, the circuit court granted Dr. Todd’s motion for summary judgment, dismissing him from the case, and denied Clark’s estate’s motion for partial summary judgment. Dr. Todd’s dismissal from the case left Dr. Hsu as the only remaining defendant. The circuit court dismissed Dr. Hsu by final judgment on June 16, 2008.

¶ 7. On August 2, 2007, Dr. Todd filed a motion for sanctions pursuant to Rule 11 of the Mississippi Rules of Civil Procedure and the LAA. In his motion, Dr. Todd alleged that Clark’s estate, through Clayton, had commenced suit against Dr. Todd despite having sufficient evidence that he was not liable for malpractice and resisted Dr. Todd’s dismissal from the suit even after Dr. Hsu’s testimony absolved him of liability. Dr. Todd filed his motion for sanctions two and a half years after the order dismissing him from the case and ten months before the final judgment dismissing Dr. Hsu.

¶ 8. The circuit court denied Dr. Todd’s motion for sanctions under Rule 11 as time-barred. The circuit court reasoned that the ten-day time limitation began to run on January 27, 2005, the date the circuit court granted Dr. Todd’s motion for summary judgment and dismissed him from the case.

¶ 9. Dr. Todd’s motion for sanctions pursuant to the LAA was not time-barred, and the circuit court reviewed the motion on the merits. However, the circuit court refused to award sanctions under the LAA because it found that the malpractice claims against Dr. Todd were not frivolous or without hope of success.

¶ 10. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 11. “The decision to award monetary sanctions under the Litigation Accountability Act is left to the discretion of the trial court.” In re Spencer, 985 So.2d 330, 336-37 (¶ 19) (Miss.2008) (citing Miss. Code Ann. § 11-55-7 (Rev.2002)). “The same is true for sanctions awarded under Rule 11 of the Mississippi Rules of Civil Procedure.” Id. at 337 (citing M.R.C.P. 11(b)). “[A Mississippi appellate court] reviews the judgment of the sanctioning trial court for abuse of discretion.” Id. (citing Wyssbrod v. Wittjen, 798 So.2d 352, 357 (¶ 17) (Miss.2001)). Therefore, the trial court’s imposition of sanctions will not be disturbed absent a finding of “a clear error of judgment.” Id. (quoting Wyssbrod, 798 So.2d at 357 (¶ 17)).

1. Time Bar

¶ 12. Dr. Todd argues that the circuit court erred in dismissing his motion for sanctions under Rule 11 of the Mississippi Rules of Civil Procedure as time-barred. The Mississippi Supreme Court has held that “[a] motion for [Rule 11] sanctions is, in effect, a motion to amend the judgment in [a] cause.” Russell v. Lewis Grocer Co., 552 So.2d 113, 117 (Miss.1989). As such, the time period for filing a Rule 11 motion is subject to the time constraints set forth in Rule 59(e) of the Mississippi Rules of Civil Procedure. Id. Rule 59(e) provides that “[a] motion to alter or amend the judgment shall be filed not later than ten days after entry of the judgment.” M.R.C.P. 59(e). For purposes of the rule, “judgment” is defined as “a final decree and any order from which an appeal lies.” M.R.C.P. 54(a).

¶ 13. Rule 54(b) addresses cases, like the malpractice case against Dr. Todd, that involve claims against multiple parties. The original action filed by Clark’s estate listed Dr. Todd, Dr. Hsu, and other individuals involved in Clark’s treatment. Over a period of five years, all defendants were released from the case through summary judgment or stipulation of dismissal, with the exception of Dr. Todd and Dr. Hsu. The circuit court dismissed Dr. Todd from the case via summary judgment on January 27, 2005. Dr. Hsu was dismissed by final judgment on June 16, 2008.

¶ 14. Dr. Todd argues, and this Court agrees, that the January 27, 2005, order was not properly certified under Rule 54(b) and did not constitute an ap-pealable order that began the ten-day clock for filing Dr. Todd’s motion for sanctions under Rule 11. Rule 54(b) permits final judgment in favor of fewer than all of the parties “only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment.” M.R.C.P. 54(b). The circuit court’s order dismissing Dr. Todd expressed no such determination, and Rule 54(b) is clear that absent such language, an order “which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties....” Id. (emphasis added). Therefore, the circuit court’s order granting summary judgment for Dr. Todd was not properly certified as a final judgment under Rule 54(b) and was not appeal-able. Instead, the final judgment dismissing Dr. Hsu on June 16, 2008, ended all claims against all parties and constituted an appealable order or “judgment,” which began the running of the ten-day limitation period set forth in Rule 59(e). As Dr. Todd filed his motion for sanctions under Rule 11 on August 2, 2007, long before the final judgment in the case, the circuit court erred in finding that the motion was time-barred.

¶ 15. While Dr. Todd’s motion for Rule 11 sanctions is not time-barred, Dr. Todd is not entitled to sanctions under the rule. Rule 11 permits a court to impose sanctions against a party or his attorney “[i]f any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay....” M.R.C.P. 11(b). A motion or pleading is frivolous “only when, objectively speaking, the pleader or movant has no hope of success.” In re Spencer, 985 So.2d at 339 (¶ 28) (quoting City of Madison v. Bryan, 763 So.2d 162, 168 (¶ 28) (Miss.2000)). The circuit court found, and we agree, that Clayton’s client had a reasonable hope of success on its malpractice claim against Dr. Todd. Furthermore, when Dr. Hsu’s deposition absolved Dr. Todd of liability, Clayton acted in good faith in abandoning the claim against Dr. Todd. A more detailed discussion of why sanctions are inappropriate in this case is included in our analysis of Dr. Todd’s LAA claim.

2. Litigation Accountability Act

¶ 16. Dr. Todd argues that sanctions against Clayton are appropriate under the LAA because Clayton resisted Dr. Todd’s dismissal from the case, despite having no proof of liability on his part.

¶ 17. The LAA allows a court to impose sanctions on an attorney who “brought an action ... that is without substantial justification, ... or ... was interposed for delay or harassment, ... or ... unnecessarily expanded the proceedings by other improper conduct....” Miss. Code. Ann. § 11-55-5 (Rev.2002). “ ‘Without substantial justification’ is defined as any claim that is ‘frivolous, groundless in fact or in law, or vexatious, as determined by the court.’ ” In re Spencer, 985 So.2d at 338 (¶ 26) (quoting Miss.Code. Ann. § 11— 55-3(a) (Rev.2002)). The term “frivolous,” for purposes of both Rule 11 and the LAA, means “without hope of success.” Id.

¶ 18. Based on our review of the record, we do not find evidence that Clayton filed a frivolous claim against Dr. Todd that had no hope of success. Clayton’s affidavit, taken on November 26, 2008, reveals that he had a hope of success in his client’s claim against Dr. Todd. Prior to filing suit against Dr. Todd, Clayton obtained Clark’s medical reports, including Dr. Todd’s pathology report, and consulted with an OB\ GYN. Later, Clayton consulted a second expert, an oncologist. Both experts believed that Clark’s cancer had existed at the time of her hysterectomy and had likely been overlooked by Dr. Todd. Based on Clayton’s affidavit, he performed sufficient due diligence in determining the validity of the claim against Dr. Todd.

¶ 19. A review of the pleadings further supports the circuit court’s decision to deny sanctions. On April 5, 2004, Dr. Todd filed a motion for summary judgment asserting that the plaintiffs had failed to prove that Dr. Todd had acted negligently. The plaintiffs responded on April 26, 2004, and acknowledged that Dr. Hsu’s deposition testimony had absolved Dr. Todd of liability. In fact, the plaintiffs stated in their response that they were willing to confess Dr. Todd’s motion for summary judgment. The plaintiffs did not seek to unnecessarily expand the proceedings by retaining Dr. Todd as a defendant. Instead, the plaintiffs only sought to prevent Dr. Hsu from later arguing that fault should be apportioned to Dr. Todd at trial-a valid concern considering Dr. Hsu’s objection to the plaintiffs’ cross-motion for summary judgment regarding apportionment of fault.

¶ 20. We do not find that the circuit court abused its discretion in denying Dr. Todd’s motion for sanctions under the LAA. Clayton undertook a reasonable investigation of the facts and consulted experts before proceeding with the claim against Dr. Todd. Once Dr. Hsu’s testimony absolved Dr. Todd of liability and diminished any hope of success, Clayton agreed to dismiss Dr. Todd from the lawsuit. This issue lacks merit.

3. Judicial Partiality

¶ 21. Dr. Todd argues that the circuit judge showed partiality toward the plaintiffs’ attorneys by granting their requests to continue the hearing on Dr. Todd’s motion for sanctions and additional discovery. “[W]e will not hesitate to reverse where the trial judge displays partiality. ...” Layne v. State, 542 So.2d 237, 242 (Miss.1989). However, it does not appear that the circuit judge showed partiality to the attorneys by granting two continuance requests, nor does it appear that Dr. Todd was somehow prejudiced by the delay. Furthermore, the continuances that Dr. Todd complains of were initiated by John Cocke, another attorney of record for Clark’s estate, who is not a party to the appeal before this Court. This issue is without merit.

Jp. Failure to Rule on Dr. Todd’s Discovery Motions

¶ 22. In conjunction with his motion for sanctions, Dr. Todd filed a motion for additional discovery and a motion to compel discovery on December 28, 2007. In his motions, Dr. Todd sought the identities of experts that Clayton had consulted during the malpractice suit against Dr. Todd and the opportunity to depose those experts. The circuit court did not address Dr. Todd’s discovery motions in its order dismissing his motion for sanctions. Dr. Todd argues that the circuit court’s failure to rule on his discovery motions constitutes error. However, in December 2008, Dr. Todd and Clayton agreed to have the sanctions dispute decided “on the record.” By signing the agreement, Dr. Todd abandoned further discovery efforts related to his motion for sanctions in favor of expediting the circuit court’s decision on the matter. Therefore, the circuit court did not err in failing to address Dr. Todd’s discovery motions. This issue lacks merit.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF TISHOMINGO COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., NOT PARTICIPATING.

      . Clark's estate filed suit against both Todd and his practice, Pathology Lab, Inc.

      . The circuit court noted that the malpractice suit against Dr. Todd was filed in 2002, prior to the effective date of tort-reform legislation; therefore, Clayton was under no statutory obligation to conduct a pre-suit investigation or consult an expert.

      . The agreement signed by both Dr. Todd and Clayton provided:
      It is agreed by the parties that this matter may be submitted for decision on the [b]riefs filed, or in the event any party chooses to submit additional arguments this must be done on or before January 15, 2009, and be based on the record as it is presently constituted....