author: IRVING, P. J.,

text:
    Thomas FOSTER, Clarence Powell, Roy L. Williams, Hue L. Fleming, and City of Ruleville, Mississippi, Appellants v. Shirley Jean EDWARDS, Hattie Robinson Jordan, James Johnson, Johnny Hill, Maro Robinson, and James Butch Jenkins, in their Individual Capacities, Appellees.
    No. 2009-CA-01683-COA.
    Court of Appeals of Mississippi.
    May 3, 2011.

      Ottowa E. Carter Jr., attorney for appellants.
    Daniel J. Griffith, Cleveland, attorney for appellees.
    Before IRVING, P.J., MYERS and MAXWELL, JJ.
   IRVING, P. J.,

for the Court:

¶ 1. A group of concerned citizens (the “Foster Group”) appeared before the Mayor and Board of Aldermen of the City of Ruleville, Mississippi (the City), to contest garbage-service fee increases and the alleged use of city equipment to dig private graves. The City refused to take corrective action, and the Foster Group filed a complaint in the Chancery Court of Sunflower County on March 26, 2007. The Foster Group sued the mayor and members of the board in their individual and official capacities. On July 8, 2008, the chancery court dismissed the complaint for lack of subject matter jurisdiction. The Foster Group did not appeal the dismissal; rather, it filed a complaint on September 15, 2008, in the Circuit Court of Sunflower County. In this suit, the Foster Group purported to act for the use of the City of Ruleville and sued the mayor and board only in their individual capacities. The City filed a motion to dismiss or, in the alternative, a motion for summary judgment. The circuit court granted the defendants’ motion for summary judgment on March 27, 2009. Feeling aggrieved, the Foster Group appeals and asserts that the circuit court erred in (1) finding that the chancery court’s dismissal for lack of subject matter jurisdiction prevented re-filing in circuit court, (2) ruling that res judicata and collateral estoppel barred the circuit-court suit, and (3) granting summary judgment.

¶ 2. Because the Foster Group failed to perfect its appeal within the time limitation set forth in section 11-51-75, the circuit court lacked jurisdiction to hear the appeal. Accordingly, we vacate the circuit court’s judgment and dismiss this appeal for lack of jurisdiction.

FACTS

¶ 3. In 2003, the City entered into a garbage-collection contract. The contract provided for residential garbage collection at a rate of $10.75 per household. In 2004, the board approved a rate increase of $.75, for a cost of $11.50 per household. However, rates were actually increased by $1.75 per household. In 2005, fees were again increased by $2.00, for a cost of $14.50 per household. According to the Foster Group, these rate increases were not properly approved by the board or noticed to the public. The Foster Group voiced its concern regarding the rate increases at meetings and through written correspondence with the board. The Foster Group also objected to the alleged use of the City’s backhoe to dig private graves. When the board failed to take corrective action, the Foster Group filed suit in chancery court against the mayor and board, in them individual and official capacities. The complaint alleged that the board had implemented the garbage-fee increases without appropriate approval and that the increases were therefore illegal. The complaint also challenged the legality of the alleged use of the City’s backhoe to dig private graves. The defendants filed a motion to dismiss, arguing that the chancery court lacked jurisdiction. Specifically, the defendants asserted that the Foster Group’s claim was an appeal from a municipal authority’s decision and subject to the procedural requirements of section 11-51-75. As stated, the chancery court dismissed the appeal for lack of jurisdiction.

¶ 4. In the complaint filed in circuit court, the Foster Group made the same allegation that it had made in the complaint filed in the chancery court regarding the alleged illegal use of the City’s backhoe, contending that the use of the City’s backhoe to dig private graves constituted a donation in violation of Mississippi Code Annotated section 21-17-5(2)(g) (Rev. 2007). Additionally, the Foster Group alleged that the garbage-fee increases were unauthorized and constituted illegal expenditures under Mississippi Code Annotated section 31-7-57 (Rev.2010). The defendants again filed a motion to dismiss or, in the alternative, a motion for summary judgment. In their motion, the defendants argued that because the Foster Group’s claim was an appeal of a municipal action, it was required to proceed under section 11-51-75. The defendants further argued that since the Foster Group failed to initiate its action within the time limitation set forth in section 11-51-75, the City’s decision became final, and the circuit court lacked jurisdiction.

¶ 5. The circuit court granted the defendants’ motion for summary judgment, reasoning that the doctrines of res judicata and collateral estoppel barred the Foster Group from re-litigating the same issues in circuit court. Even if those doctrines did not apply, the circuit court held that the Foster Group had failed to prove that genuine issues of material fact existed.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 7. Although the Foster Group raises three issues on appeal, we only find it necessary to address whether the case is properly before this Court. “Jurisdiction is a question of law, which [an appellate court] reviews de novo.” Derr Plantation, Inc. v. Swarek, 14 So.3d 711, 715 (¶8) (Miss.2009) (quoting Issaquena Warren Counties Land Co. v. Warren County, 996 So.2d 747, 749 (¶ 5) (Miss.2008)).

¶ 8. The Foster Group is challenging a municipal action; therefore, the proper avenue for appeal is section 11 — 51— 75, which provides in pertinent part:

Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision, and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of the board of supervisors or of the municipal authorities. The clerk thereof shall transmit the bill of exceptions to the circuit court at once, and the court shall either in term time or in vacation hear and determine the same on the case as presented by the bill of exceptions as an appellate court, and shall affirm or reverse the judgment.

The Mississippi Supreme Court has consistently held that the statute’s ten-day time limit is both “mandatory and jurisdictional.” Ball v. Mayor and Bd. of Aldermen of City of Natchez, 983 So.2d 295, 299 (¶8) (Miss.2008); Newell v. Jones County, 731 So.2d 580, 582 (¶ 10) (Miss.1999). Therefore, “[wjhere an appeal is not perfected within the statutory time constraints^] no jurisdiction is conferred on the appellate court[,] and the untimely action should be dismissed.” Newell, 731 So.2d at 582 (¶ 10) (citing Moore v. Sanders, 569 So.2d 1148, 1150 (Miss.1990)).

¶ 9. In Newell, a case with nearly identical facts, the Jones County Board of Supervisors entered into a solid-waste-collection contract. Id. at 580 (¶¶ 2-3). A group of residents filed a complaint challenging the board of supervisors’ decision to enter into the contract. Id. at (¶ 4). Jones County filed a motion to dismiss, arguing that the residents’ appeal was governed by section 11-51-75 and its ten-day time limit. Id. at 580 (¶ 5). The residents filed their complaint nearly three months after the board of supervisors entered into the contract. Id. at 582 (¶ 10). Therefore, the residents’ appeal was untimely. Id. The trial court granted the motion to dismiss, and the residents appealed. Id. at (¶ 6). Our supreme court affirmed the trial court’s decision and held that “[w]here an appeal is not perfected within the statutory time constraints!]] no jurisdiction is conferred on the appellate court[,] and the untimely action should be dismissed.” Id. at 582 (¶ 10) (citing Moore, 569 So.2d at 1150).

1110. In this case, the Foster Group also failed to file its appeal within the time constraints of section 11-51-75, the exclusive avenue for appealing municipal-authority decisions. The rate increases complained of occurred in 2004 and 2005, but the Foster Group waited until 2007, years beyond the ten-day deadline, to file its first complaint. Therefore, the circuit court did not have jurisdiction to grant summary judgment. Instead, the circuit court should have dismissed the action for lack of jurisdiction. This is true even though the Foster Group proceeded under sections 31-7-57 and 21-17-5(2)(g) when it re-filed its suit in circuit court. Our supreme court has noted the danger in allowing plaintiffs to “jettison the restrictions of [section] 11-51-75 simply by tacking on claims against individual members of the municipal or county board.... ” Falco Lime, Inc. v. Mayor and Aldermen of City of Vicksburg, 836 So.2d 711, 720 (¶ 36) (Miss.2002). That is precisely what the Foster Group has attempted to do here. Because the Foster Group failed to follow the procedural requirements of section 11-51-75, the chancery and circuit courts had no choice but to dismiss its claim for lack of jurisdiction. In a last ditch effort to salvage its claim and side-step the requirements of section 11-51-75, the Foster Group sued the may- or and board, individually, under sections 31-7-57 and 21-17-5(2)(g). Because the Foster Group’s action was, in reality, an appeal of a municipal authority’s decision, section 11-51-75 applied. The Foster Group failed to appeal within the ten-day time limit; therefore, the circuit court lacked jurisdiction to hear the appeal. Accordingly, this Court lacks jurisdiction as well and must dismiss the appeal.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY IS VACATED, AND THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . Mississippi Code Annotated section 11-51-75 (Rev.2002) provides that appeals from decisions of municipal authorities of a city or town may be appealed to the circuit court. However, we find that the chancery court erred in'dismissing the appeal, because pursuant to section 162 of Mississippi Constitution, the chancery court should have transferred the appeal to the circuit court.

      . The complaint in the circtiit court was styled: "Thomas Foster, Clarence Powell, Roy L. Williams, and Hue L. Fleming for the use of the City of Ruleville, Mississippi vs. Shirley Jean Edwards, Hattie Robinson Jordan, James Johnson, Johnny Hill, Maro Robinson, and James Butch Jenkins, in their individual capacities."

      . Mississippi Code Annotated section 31-7-57(1) provides in pertinent part:
      Any elected or appointed public officer of an agency or a governing authority, or the executive head, any employee or agent of an agency or governing authority, who appropriates or authorizes the expenditure of any money to an object not authorized by law, shall be liable personally for up to the full amount of the appropriation or expenditure as will fully and completely compensate and repay such public funds for any actual loss caused by such appropriation or expenditure, to be recovered by suit in the name of the governmental entity involved, or in the name of any person who is a taxpayer suing for the use of the governmental entity involved, and such taxpayer shall be liable for costs in such case. In the case of a governing board of an agency or governing authority, only the individual members of the governing board who voted for the appropriation or authorization for expenditure shall be liable under this subsection.

      . Mississippi Code Annotated section 21 — 17— 5(2)(g) provides in pertinent part:
      “Unless such actions are specifically authorized by another statute or law of the State of Mississippi, this section shall not authorize the governing authorities of municipalities to grant any donation....”


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Richard REEVES and Rega, Inc., A Mississippi Corporation, Appellants v. MERIDIAN SOUTHERN RAILWAY, LLC, Appellee.
    No. 2010-CA-00057-COA.
    Court of Appeals of Mississippi.
    May 10, 2011.

      Eric Tiebauer, Waynesboro, attorney for appellants.
    Robert M. Dreyfus Jr., Meridian, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Richard Reeves and Rega, Inc. appeal the grant of summary judgment in favor of Meridian Southern Railway, LLC. They argue that the circuit court erred when it granted summary judgment in favor of Meridian Southern on the claims of conversion, unjust enrichment, and trespass. We find that nominal damages should have been granted for the claim of trespass. For all other claims and issues, we find no error and affirm.

FACTS

¶ 2. There are no facts in dispute. Meridian Southern owns and operates a short-line railroad that runs between Meridian, Mississippi, and Waynesboro, Mississippi. Along this line, there are small segments of track that branch off from the main line. These small segments are called “spurs.” Meridian Southern owns some of the spurs, while other people or entities also own some of the spurs.

¶ 3. Meridian Southern is paid to store railcars, and it uses some of the spurs for that purpose. Meridian Southern takes control of the railcars at Meridian, stores some of the railcars at its Meridian facilities, and disperses others for storage on the spurs.

¶ 4. In March 2000, Meridian Southern started to use a spur located on a tract of land in Clarke County, Mississippi. At that time, the land was owned by Clarke County, but it was occupied and used by Griffco Plastics Company. Griffco gave Meridian Southern an oral license to use the spur. Subsequently, Griffco abandoned the property, but Meridian Southern continued to use the spur. After Griff-co abandoned the property, Meridian Southern continued to store railcars on the spur; and the property owner, Clarke County, never objected to the continued use of the spur.

¶ 5. On December 28, 2006, Clarke County sold the land to Rega. Neither Clarke County nor Rega informed Meridian Southern of the sale. Meridian Southern claimed it knew nothing about the change in ownership. Meridian Southern continued to use the spur for the next twenty months without any objection from Rega.

¶ 6. In September 2008, Meridian Southern had six railcars stored on the spur when employees for Rega installed and locked a derail device on the lead railcar. This device trapped the six railcars onto the spur. After learning of this, Meridian Southern employees, accompanied by a local police officer, went to the property and tried to get the six railcars off the spur. They cut the lock off the derail device. At that point, Reeves, a shareholder of Rega, arrived on the scene and objected to the removal of the railcars. Meridian Southern employees immediately ceased their attempt to remove the railcars, replaced the lock on the derail device with an identical one, and left the property.

¶ 7. Thereafter, Meridian Southern filed a complaint for replevin. Rega answered the complaint and asserted ten counterclaims. Subsequently, Rega released the six railcars, and the replevin claim was dismissed. Meridian Southern then moved for summary judgment on Rega’s counterclaims. The circuit court granted summary judgment. Rega and Reeves now appeal the summary judgment granted on three of the ten counterclaims.

STANDARD OF REVIEW

¶ 8. The standard of review of an order granting summary judgment is de novo. PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 49 (¶ 8) (Miss.2005) (citing Hurdle v. Holloway, 848 So.2d 183, 185 (¶ 4) (Miss.2003)). It is well settled that “[a] summary judgment motion is only properly granted when no genuine issue of material fact exists. The moving party has the burden of demonstrating that no genuine issue of material fact exists within the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits.” Id. (internal citations and quotations omitted).

ANALYSIS

1. Claim for Conversion

¶ 9. Rega argues that Meridian Southern converted the spur when it continued to store railcars on the spur after Rega had acquired the property.

¶ 10. “[T]here is a conversion only when there is an ‘intent to exercise dominion or control over goods which is inconsistent with the true owner’s right.’ ” Community Bank, Ellisville, Miss. v. Courtney, 884 So.2d 767, 774 (¶ 15) (Miss.2004) (quoting First Investors Corp. v. Rayner, 738 So.2d 228, 234 (¶27) (Miss.1999)) (emphasis added).

¶ 11. “The tort of ‘conversion’ is an intentional exercise of dominion and control over personal property or a chattel, that so seriously interferes with the right of another to control that property that the tortfeasor may justly be required to pay the other the full value of the property.” 18 Am. Jur.2d Conversion § 1 (2004) (emphasis added).

¶ 12. Here, Rega’s spur is a fixture. It is a part of the realty. It is not personal, or moveable, property. It is not chattel. Therefore, it is not property that can be converted. The circuit court’s grant of summary judgment on this issue was proper.

2. Claim for Unjust Enrichment

¶ 13. Rega next argues that Meridian Southern has been unjustly enriched. Specifically, Rega contends that companies paid Meridian Southern to store railcars for them and that Meridian Southern used Rega’s spur for that purpose without compensating Rega in any way.

¶ 14. Unjust enrichment “applies to situations where there is no legal contract but where the person sought to be charged is in possession of [money or] property which in good conscience and justice he should not retain but should deliver to another.” Joel v. Joel, 43 So.3d 424, 432 (¶ 27) (Miss.2010).

¶ 15. Unjust enrichment is an equitable doctrine and, therefore, is subject to equitable defenses. One of those defenses is laches. The doctrine of laches states: “equity aids the vigilant and not those who slumber on their rights.” In re Estate of Davis v. Stennis, 510 So.2d 798, 800 (Miss.1987).

¶ 16. Here, Rega allowed Meridian Southern to use the spur for twenty months after Rega had acquired ownership of it. During that time, Rega neither notified Meridian Southern of the change in ownership nor objected to Meridian Southern’s use of the spur. In fact, the first act Rega took to assert its rights to the spur was to install and lock a derail device, which trapped six of Meridian Southern’s railcars on the spur.

¶ 17. Under the circumstances of this case, the circuit court was correct to deny Rega the aid of equity. The circuit court’s grant of summary judgment on this issue was proper.

3. Claim for trespass

¶ 18. Next, Rega argues that Meridian Southern trespassed when it placed railcars on the spur without Rega’s permission.

¶ 19. A trespass to land is committed when a person intentionally invades the land of another without a license or other right. Thomas v. Harrah’s Vicksburg Corp., 734 So.2d 312, 316 (¶ 10) (Miss.Ct.App.1999) (citations omitted). Trespass can be committed by, among other acts, placing an object on the other person’s land. Id. at 315 (¶ 7). A trespass is committed even if the trespasser has a good-faith belief that he has a right to enter the land. Id. at 316 (¶ 8). Furthermore, the landowner may recover nominal damages, even if he fails to show any actual damages. Whitten v. Cox, 799 So.2d 1, 18 (¶ 46) (Miss.2000).

¶ 20. Here, Meridian Southern placed railcars on Rega’s spur without Rega’s consent. In its defense, Meridian Southern points out that: Griffeo granted it an oral license to use the spur; Clarke County never objected to its use of the spur; and neither Clarke County nor Rega informed it that Rega had bought the property. Based on those facts, Meridian Southern contends that it had a good-faith belief that it had a right to use the spur. However, that is not a defense to trespass.

¶ 21. The Restatement (Second) of Torts section 171 (1965) provides in part: “[T]he actor’s privilege to enter land created by consent of the possessor is terminated by ... (c) a transfer or other termination of the possessor’s possessory interest in the land.” That section of the restatement includes the following comment:

A consent given by one in possession of land ceases to be effective as conferring a privilege to enter or remain, when the interest of the licensor in the land is terminated. This rule is applicable to a transfer of the interest of the consenting possessor to a third person.... This is true although the licensee is not notified, and neither knows nor has reason to know that the consent given has been invalidated by termination of the interest in the land.

Restatement (Second) of Torts § 171 cmt. f (1965). Therefore, Meridian Southern cannot rely on the oral license granted by Griffeo. Meridian Southern trespassed on Rega’s land.

¶ 22. Although a trespass was committed, in response to the summary-judgment motion, Rega did not offer any evidence that the trespass had caused actual damages. During discovery, Meridian Southern propounded an interrogatory that asked Rega to itemize its damages. Rega responded that it would wait until the close of discovery to supplement its answers and respond to the interrogatory. Rega never supplemented its answers. There is nothing in the record or the briefs to indicate that the spur or the surrounding property had been damaged or that Rega had otherwise been injured by Meridian Southern’s use of the spur. In fact, Meridian Southern claimed that it had maintained and repaired the spur over the years.

¶ 23. In Whitten, the Mississippi Supreme Court concluded:

However, Whitten is correct to point out that where there is a trespass to land, the landowner has a right to at least nominal damages. The jury’s refusal to award nominal damages for the trespass was in error, but since there were no actual damages resulting from the trespass, this error is of little consequence. If this Court reversed and remanded on this issue, Whitten could only receive nominal damages. Instead, this error will be cured by this Court reversing and rendering an award of nominal damages without the necessity of remand or retrial. See Daniel v. McNeel, 221 Miss. 666, 668, 74 So.2d 753, 754 (1954) (where the Court reversed and rendered and awarded a nominal sum of $10.00 when the only issue to be resolved was the payment of nominal damages.) Accordingly, we reverse and render as to the trespass claim only and award Whitten nominal damages in the total amount of $10.00 against Cox, Logan, and Spinosa, jointly and severally.

Whitten, 799 So.2d at 18 (¶ 47). Based on this authority, we reverse the circuit court’s grant of summary judgment and render a judgment in favor of Rega and Reeves in the total amount of $10.00.

¶ 24. In all other respects, the judgment of the Clarke County Circuit Court is affirmed.

¶ 25. THE JUDGMENT OF THE CLARICE COUNTY CIRCUIT COURT IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANTS AND ONE-HALF TO THE APPELLEE.

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


author: ROBERTS, J.,

text:
    Edward PAYTON, Appellant v. BOOMTOWN CASINO and Bally Gaming and Systems, Appellees.
    No. 2010-CC-00046-COA.
    Court of Appeals of Mississippi.
    May 17, 2011.

      David Clifton Morrison, attorney for appellant.
    Luther T. Munford, Kathryn H. Hester, James W. Shelson, Jackson, attorneys for appellees.
   ROBERTS, J.,

for the Court:

¶ 1. Edward Payton appeals the decision of the Harrison County Circuit Court which upheld a decision of the Mississippi Gaming Commission denying Payton’s argument that his due-process rights were violated because he was not allowed to participate in a Biloxi casino’s slot machine jackpot. The Gaming Commission ruled that Payton was entitled to $20 rather than a prize up to a progressive jackpot of nearly $2.2 million. His sole argument on appeal is a “botched investigation” by the Gaming Commission denied him due process of law and a chance at the jackpot.

¶ 2. Finding no error in the circuit court’s judgment, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Payton was playing the Millionaire Blazing Sevens slot machine at Boom-town Casino in Biloxi, Mississippi, on February 14, 2004. The machine was manufactured by co-defendant, Bally Gaming and Systems, a Nevada corporation, which also operated the progressive system to which the Millionaire Blazing Sevens machine was connected. The machine hit a combination of three Blazing Red 777s. This combination placed the machine into the bonus feature that would allow Payton to compete for a progressive prize of from $5 up to nearly $2.2 million. The bonus-round music started playing, but the spin bonus-game button was not lit. Payton tried to take his bonus spin, but the machine was locked up. Payton asked his female friend, who was with him, to go get a Boomtown employee, but one arrived before she could get back. Both Boom-town and Bally personnel were called to fix the machine and were unsuccessful. Gaming Commission personnel were called to the machine. However, all attempts to fix the machine were unsuccessful. Boom-town offered Payton the opportunity to try winning at another progressive machine. Payton declined the offer and told Gaming Commission personnel that he would be satisfied with a $10,000 prize. The Gaming Commission declined Payton’s offer.

¶ 4. Gaming Commission agent Steve McComb and his supervisor Dave King-man determined that an investigation by the Gaming Commission should be performed at the Gaming Commission laboratory in Biloxi. To accomplish this, the slot machine’s central processing unit (CPU) was removed and taken to the lab. Boom-town cut the power to the errant machine and put it where it could not be played by patrons. When the CPU was removed the integrity tape, which is affixed to each machine by the Gaming Commission, was still intact showing that no tampering with the machine had occurred.

¶ 5. As noted by the Gaming Commission hearing examiner Joan Myers in her opinion:

Most slot machine players are unaware of the fact that the spinning reels are simply for entertainment. The outcome of the game is determined by the computer program of the slot machine long before the reels spin and stop. That outcome is stored in the Random Access Memory (RAM) of the machine for a certain period of time and can be later retrieved. This RAM in Payton’s case is on a chip that is on the CPU.

¶ 6. Gaming Commission Senior Engineer Ames Kerley conducted the investigation of the slot machine’s CPU at the lab. He was able to download the slot machine information to a laboratory computer. He prepared a report to the Gaming Commission in which he said that he was not able to determine what caused the machine to lockup. He listed the cause of the lockup as “indeterminate at this time.” Kerley’s report noted that Bally said that its “preliminary findings show that the lockup is due to a bug with systems communications that is not handled properly within their main program code.” Although the cause of the lockup was not determined, Kerley was able to determine what Payton would have won had the slot machine not failed to activate the bonus feature. Kerley said that he was able to verify that the machine would have made four re-spins and that would mean that the amount chosen by the random value feature was 80 credits, which would be the equivalent of $20. Buttressing its finding, the Gaming Commission report noted that its investigation found that there was no evidence that the progressive jackpot or a large jackpot was hit during the time when Payton was playing, nor did Bally or Boomtown report large jackpots during this time.

¶ 7. Based upon the evidence of his agents and of the diagnostic testing on the computer game board at the lab, Larry Gregory, Executive Director of the Gaming Commission advised Payton in an April 19, 2004 letter that the slot machine had malfunctioned when Payton attempted to play the bonus round. However, because the Gaming Commission’s investigator was able to download and analyze the slot machine’s CPU, the investigator was able to determine that had Payton been allowed to play the bonus round, he would have re-spun four times and won 80 credits or $20 in the bonus round. He offered Payton $20. The executive director found no basis on which to award Payton $10,000. Pay-ton rejected the $20 payment and requested and received a hearing before a Gaming Commission hearing examiner.

¶ 8. The hearing was conducted by hearing examiner Myers on November 3 and 4, 2004, and consisted of 405 pages of testimony and approximately 200 pages of exhibits. By the time of the hearing, Payton had modified his claim, declining to state a specific amount; instead, he asserted that it was not possible to determine what the outcome of the bonus feature would have been, but he could possibly be entitled to the total of the progressive jackpot.

¶ 9. Payton testified on his own behalf and called as his expert, Desmond Lad-ner, a recently involuntarily separated employee of the Gaming Commission. Payton also called Agent McComb. Bally called McComb and Jeffery Lester, a Boomtown employee who was a slot floor supervisor on the date of Payton’s gaming misadventure, and Bally recalled Ladner as a witness. Ladner testified that he had been Kerley’s boss for approximately eight years and that he had full confidence in Kerley’s ability and skill.

¶ 10. The conclusion reached by the hearing examiner was that the evidence supported a finding that Payton did not win a primary progressive jackpot; instead, he was entitled to the $20 which the lab report found that he would have won. Hearing examiner Myers issued a sixteen-page ruling in which she reviewed the evidence. Based upon the evidence of the lab report, which was not refuted by Pay-ton, the hearing officer found that “[t]he re-spinning of the reels and the lighting of the bars are merely visual effects, however, and have no part in determining the outcome of the bonus feature, as the value of the bonus award is randomly chosen from the available range of awards before the re-spins of the bonus feature begin.” All slot machines in casinos under the jurisdiction of the Gaming Commission must be electronic in their design and operation, and the outcome of each play of a machine must be determined by a random-selection process. Miss. Gaming Reg. IV § E. Further she found that the opening and closing of the slot-machine doors by slot technicians did not make any difference regarding what the random-number generator selected as the outcome of the play; that is because a Commission regulation requires that the game memory stay intact regardless of what happens to the outside of the slot machine like a power on and power off or an opening and closing of the machine in order to correct a possible tilt. The bottom line she said was that the random-number generator had already selected the outcome of Pay-ton’s game, and it was in the memory in the CPU that was taken to the lab. Although the machine locked up, it had already generated Payton’s game outcome, which Kerley was able to extract from the CPU data, and the outcome was that Pay-ton would have made four re-spins and won 80 credits or $20.

¶ 11. The Gaming Commission adopted the hearing officer’s decision, and Payton appealed to the Circuit Court of Harrison County. Following a hearing, the circuit court sitting in its appellate capacity, upheld the Gaming Commission’s decision. It is from this judgment that Payton appeals.

STANDARD OF REVIEW

¶ 12. Payton argues that our review should be de novo citing Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990). However, by statute the appellate court “must not” conduct a trial de novo, but it is confined in its review to the record as made below. Miss.Code Ann. § 75-76-171(2) (Rev.2009). Mississippi Code Annotated section 75-76-171(3) (Rev.2009) sets out our deferential standard of review as follows:

(3) The reviewing court may affirm the decision and order of the commission, or it may remand the case for further proceedings or reverse the decision if the substantial rights of the petitioner have been prejudiced because the decision is:
(a) In violation of constitutional provisions;
(b) In excess of statutory authority or jurisdiction of the commission;
(c) Made upon unlawful procedure;
(d) Unsupported by any evidence; or
(e) Arbitrary or capricious or otherwise not in accordance with law.

¶ 13. Our function at the appellate level is to review the Gaming Commission’s record and decision to determine if there is any evidence to support the Gaming Commission’s order. Miss. Gaming Comm’n v. Freeman, 747 So.2d 231, 24(M1 (¶¶40-42) (Miss.1999).

CASINO PATRON’S DISPUTES

¶ 14. The Mississippi Gaming Control Act established a procedure for resolving disputes between a casino patron and gaming licensee. Where the patron’s dispute involves $500 or more, the casino is’ required to notify the executive director of the Gaming Commission immediately. Miss.Code Ann. § 75-76-159 (Rev.2009). By statute the executive director “shall conduct whatever investigation is deemed necessary and determine whether payment should be made.” Id. at (1). Either the patron or the licensee may then file a petition with the Gaming Commission requesting a hearing to reconsider the executive director’s decision. Miss.Code Ann. § 75-76-161 (Rev.2009). The Gaming Commission, in turn, appoints a hearing officer to conduct a hearing on the patron’s dispute. Id. The party seeking reconsideration bears the burden of showing that the executive director’s decision should be reversed or modified. Id. Any person aggrieved by the hearing officer’s decision may request a hearing with the Gaming Commission to reconsider the ruling. Miss.Code Ann. §§ 75-76-119 (Rev.2009) & 161. However, the Gaming Commission may decide to adopt the hearing officer’s decision as the final order of the Gaming Commission. Id.

¶ 15. The final decision of the Gaming Commission may be appealed by filing a petition for judicial review in the circuit court of the county in which the dispute between the gaming licensee and the patron arose, in this case Harrison County. Miss.Code Ann. § 75-76-167 (Rev.2009). The review by the circuit court is conducted without a jury and must not be tried de novo, but it is confined to the record on review. Miss.Code Ann. § 75-76-171(2).

WHETHER PAYTON’S DUE-PROCESS RIGHTS WERE VIOLATED BY A “BOTCHED INVESTIGATION” BY THE GAMING COMMISSION

¶ 16. Payton’s sole issue on appeal is that his due-process rights were breached by what he termed a “botched investigation” by the Gaming Commission. He makes this argument alleging that there was a spoliation of evidence for the first time on appeal as noted by the circuit court. An issue not raised before the lower court is deemed waived and is procedurally barred. A-1 Pallet Co. v. City of Jackson, 40 So.3d 563, 570 (¶ 24) (Miss.2010). Procedural bar notwithstanding, we will address Payton’s arguments.

¶ 17. Payton made much of the fact that the door on the slot machine was opened and closed several times by the different technicians as they tried to fix the machine. This was done by technicians who had successfully used the open- and-close procedure before to correct a tilt on a machine thinking that perhaps the machine was in a tilt mode. Also, the technicians tried to get the machine to work by powering it down and then back up, but this maneuver also failed. The door was opened and closed also as the technicians checked for bent or broken pins in the CPU. The hearing examiner discounted the possibility that the openings and closings and powerings up and down affected the machine. The brains of the machine were in the CPU, which the investigating Gaming Commission agent testified had retained its integrity tape and remained inviolate.

¶ 18. Payton also argues that spoliation could have occurred when the CPU was taken by Agent McComb to his house and locked into a desk drawer instead of taking it to an evidence locker or vault. The problem with this argument is that it was Payton’s burden to show that there was “an indication or reasonable inference of probable tampering with the evidence or substitution of evidence.” Ellis v. State, 934 So.2d 1000, 1005 (¶¶ 20-22) (Miss.2006). Although Payton argued that something could have occurred when Agent McComb took the CPU home in a sealed evidence bag, Payton wholly failed to offer any evidence that something did happen. Therefore, we find this argument is without merit.

¶ 19. Payton’s position is not that he won the progressive jackpot and was denied the payment of it. Instead, he claims that he is entitled to the jackpot because his due-process rights were violated. The violation he claims was that the evidence was not property preserved — an argument we rejected — and because the investigation was not properly done. In support of this argument he cites Grand Casino Biloxi v. Hallmark, 823 So.2d 1185 (Miss.2002). However, the case is factually different from what occurred in Payton’s case. In Hallmark, the due-process violation was found after a showing that Grand Casino had destroyed certain evidence, and the Gaming Commission had performed an improper investigation. The machine in Hallmark gave indications that the Grand Bucks had been won by Hallmark. Id. at 1186 (¶¶ 4-5). Here Payton at no time was under the impression that he had won a jackpot. In Hallmark, Hallmark requested the involvement of the Gaming Commission, which Grand Casino discouraged, and their employees instead opened the slot machine and spun the reels and removed them from the machine. Id. Pay-ton did not request the help of the Gaming Commission; instead, it became involved at the behest of Boomtown. No employees of Boomtown removed any part of the machine Payton was playing prior to the arrival of the Gaming Commission. A representative of Bally opened the machine to check for broken or bent pins, but seeing that the pins were okay, he closed the machine. Agent McComb immediately had the video of what had occurred at the machine saved, and the video was entered before the hearing examiner. In Hallmark, most of the video of the employees’s actions were recorded over or erased. Id. at (¶ 5). In Payton’s case, Agent McComb prepared his own report of his interviews and activities, and he had the witnesses give handwritten statements regarding what they observed and did. In Hallmark, the agents did not document any interviews not even with Hallmark. Id. at 1189-90 (¶ 19). What is shown by the evidence is that the casino and the Gaming Commission followed the gaming rules to the letter for conducting a patron’s complaint to the letter.

¶ 20. Our review of the record finds that Payton received due process. He was given a notice and an opportunity to be heard at a two-day hearing. Further there was an appeal to the circuit court at which he gave further argument of his version of the case, and then he appealed that judgment.

¶ 21. Applying our deferential standard of review, we affirm the judgment of the circuit court, which upheld the Gaming Commission’s decision finding that Payton was entitled to $20.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE AND CARLTON, JJ„ CONCUR. MAXWELL, J., NOT PARTICIPATING.

      .The Millionaire Sevens is a twenty-five-cent denomination wide-area progressive machine. A wide-area progressive machine is one which is a part of a network of gaming establishments that features a jackpot that increases with the play of machines in the network. The slot machine Payton played contained three reels, one payline, and a maximum of four coins. The bonus round was activated when four coins were bet and three red 777s showed on the payline.

      . The progressive jackpot was $2,189,092 when play stopped on the slot machine that Payton was playing. Payton's own expert testified that the chance of Payton hitting the nearly $2.2 million dollar prize was statistically "one in one million.”

      . Nowhere in the record is it indicated that $10,000 was a valid payout with the combination that was showing on the slot machine. Apparently, the figure was one which Payton himself determined would be a satisfactory settlement amount.

      . An aggrieved patron can then request a reconsideration of the executive director’s decision at which point the Gaming Commission shall appoint a hearing examiner to conduct a hearing. Miss. Code Ann. § 75-76-161(1)(6) (Rev.2009). After the hearing, the Gaming Commission may then review the hearing examiner's decision and may reverse, modify, or affirm the decision. Miss.Code Ann. § 75-76-119 (Rev.2009). In accordance with its rule-making authority, Mississippi Code Annotated section 75-76-33(2)(e) (Supp. 2010), the Gaming Commission has adopted rules outlining how a patron's appeal is to be conducted. Rule H, entitled Player Disputes, sets out in eighteen sections how the hearing will be conducted. Miss. Gaming Comm’n Reg. (H)(§§ 1-18).

      . Ladner was terminated from employment as laboratory supervisor of the Gaming Commission’s Biloxi lab just three weeks after the lab report on Payton's investigation was released. Interestingly, Payton’s investigation was begun during the time Ladner was still director of the Biloxi gaming lab, and he signed a copy of the final investigation report. He took pains at the hearing to explain that he did not actually sign the document itself, but his signature was placed there at his direction by someone else.


text:
    Steven Eric DISON, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KP-00183-COA.
    Court of Appeals of Mississippi.
    May 17, 2011.

      Steven Eric Dison, Appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
   ROBERTS, J.,

for the Court:

¶ 1. Steven Eric Dison was convicted of burglary and sentenced as a habitual offender in the Circuit Court of Oktibbeha County. He appeals, asserting two errors: (1) the circuit court erred in not suppressing evidence of his flight after he fled Mississippi while on bond, and (2) the verdict is against the weight and sufficiency of the evidence. Finding no error, we affirm.

FACTS

¶ 2. During the evening of August 18, 2008, Officer Joshua Wilson of the Stark-ville Police Department responded to a call regarding a possible drunk driver in a maroon sedan. While searching for the suspect, Officer Wilson saw a vehicle matching the description of the drunk driver’s vehicle, but this vehicle was dark green. Officer Wilson turned on his blue lights to stop the driver, but the vehicle accelerated, and a high-speed chase ensued.

¶ 3. The driver of the vehicle turned into a subdivision and jumped out of the car. Officer Wilson saw a shiny object in the driver’s hand, which he believed to be a weapon, so he took cover behind his patrol car. The driver ran, and Officer Wilson pursued him, but the driver eluded Officer Wilson by running through a briar patch.' Officer Wilson testified that he did not get a good look at the driver, but he did notice that the man had very dark arms. His initial impression, based upon this brief nighttime encounter, was the driver was African American. He also testified that at the time that he exited his patrol car, he thought there might have been a second person in the vehicle. When Officer Wilson returned to the suspect’s vehicle, he saw a man sitting in the passenger’s seat. He commanded the passenger to exit the vehicle and arrested him. According to Officer Wilson, the passenger, later identified as Eric Pepper, said, “I told him not to run.”

¶ 4. The vehicle was towed and searched for inventory purposes. Officer Wilson stated that he found a jar of change, a Fossil watch, a cell phone, a pocket knife, and a bracelet in the vehicle. He also determined that the vehicle was registered to a person with the last name Dison.

¶ 5. The next day, Officer Wilson responded to a call regarding a burglary. Stephanie Mallette, the victim, complained that someone had stolen a jar of change, a Fossil watch, and a bracelet from her residence. During the trial, Mallette stated that Dison was one of her roommates. On August 19, 2008, she encountered Dison standing outside the home. She noticed that Dison’s vehicle, which actually belonged to his grandmother, was missing. When Mallette questioned Dison about the missing vehicle, he explained that Pepper had stolen his car and some of his X-Box games from the house. Dison urged Mal-lette to check her room to see if anything had been stolen. Finding that her possessions were missing, Mallette called the police.

¶ 6. Responding to the reported burglary, Officer Wilson interviewed Mallette. Intrigued by Mallette’s description of her missing property and the identification of Dison, Officer Wilson asked to speak with Dison, who was at the home. Officer Wilson questioned Dison about the events, and Dison was very evasive. Dison was Caucasian rather than African American, but Officer Wilson noticed that Dison’s forearms were heavily tattooed. Officer Wilson also noticed scratches on Dison’s face and arms. He asked Dison to remove his cap and to lift up his shirt. According to Officer Wilson, Dison had numerous scratches on his head, back, stomach, and arms, which would be consistent with scratches that someone would have sustained from running through a briar patch.

¶ 7. Officer Wilson took Mallette to the impound lot to identify whether her missing items were the same items that were found in Dison’s car. Mallette testified that the jar of change, the Fossil watch, and the bracelet belonged to her, and she identified the cell phone and the pocket knife as belonging to Dison. Based on this information, the police arrested Dison for the burglary.

¶ 8. Commander Robert Elmore of the Oktibbeha County Sheriffs Department testified that Dison had jumped bond. Di-son was subsequently arrested in Florida on an unrelated charge, but he was using an assumed name and posted a cash bond before Mississippi could make an extradition request. Dison was next arrested in Texas, and from there, he was extradited to Mississippi.

¶ 9. The defense called two witnesses, and recalled Officer Wilson. Pepper was called, but he invoked his Fifth Amendment right. Deputy Bryon Griggs of the Oktibbeha County Sheriffs Department testified that he had responded to a domestic-violence call on August 16, 2008, which involved Dison. Deputy Griggs stated that Dison had blood on his face, which possibly came from a busted nose and/or lips. When questioned by defense counsel regarding whether he saw scratches on Dison, Deputy Griggs stated that he did not notice any scratches on Dison.

¶ 10. The defense recalled Officer Wilson to testify. It appears that Officer Wilson prepared a report of some kind following the car chase on August 18, 2008, but the report itself was not introduced into evidence. Nevertheless, Officer Wilson testified that he initially identified the driver fleeing the car as an African American, and Dison is Caucasian. The defense’s theory of the case was that an unidentified third person was actually driving the car on the night of August 18, 2008. During Officer Wilson’s testimony during the State’s case-in-chief, he stated that the fleeing driver had very dark arms, and photographs of Dison were introduced. These photographs showed extensive tattooing on Dison’s head, neck, torso and especially forearms, as well as scratches on the same areas of his body which the State contended were consistent with a person running through a briar patch. When the State cross-examined Officer Wilson during the defense’s case-in-chief, Officer Wilson testified that the tattooing on Dison’s arms was so extensive that they did make Dison appear “[d]ark in complexion.”

¶ 11. Based on this evidence, the jury found Dison guilty of burglary. Dison filed a motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial. The trial court denied Dison’s post-trial motions. Aggrieved, Di-son timely filed this appeal.

ANALYSIS

I. EVIDENCE OF FLIGHT

¶ 12. Dison argues that the circuit court erred by not excluding evidence that he had jumped bond after being arrested for the burglary, contending that the evidence was irrelevant and prejudicial. The State argues that the evidence of flight was admissible to show Dison’s consciousness of guilt.

¶ 13. Evidence of flight is admissible to show consciousness of guilt. Amos v. State, 911 So.2d 644, 654 (¶ 31) (Miss.Ct.App.2005). In cases where a defendant’s flight can be explained by some reason besides his deshe to escape punishment for the crime charged, such as being an escaped prisoner being tried on a charge unrelated to escape, then evidence of flight should not be admitted. Id. (citing Austin v. State, 784 So.2d 186, 195 (¶ 32) (Miss.2001)). In this case, Dison offered no rational explanation for his flight and use of assumed names. Therefore, evidence of his flight was admissible to show consciousness of guilt.

¶ 14. Dison contends that the circuit court erred in not conducting a balancing test under Mississippi Rule of Evidence 403. However, while the record shows that Dison’s attorney objected to Commander Elmore’s testimony as irrelevant, the attorney failed to make any objection regarding Mississippi Rule of Evidence 403 at trial. “A contemporaneous objection must be made at the time of the testimony, otherwise, the issue is waived on appeal unless a substantial right of the defendant would be violated.” Willis v. State, 999 So.2d 411, 414 (¶ 9) (Miss.Ct.App.2008) (citing Williams v. State, 794 So.2d 181, 187 (¶ 23) (Miss.2001)). An appellate court will not normally reverse a circuit court’s decision unless the circuit court was first presented with the issue. Scarbough v. State, 893 So.2d 265, 272 (¶ 23) (Miss.Ct.App.2004). Dison’s counsel never articulated in his objection that any probative value of the flight evidence was substantially outweighed by its prejudicial effect. We find that Dison’s objection was insufficient to preserve this issue for appeal.

¶ 15. Moreover, even if this issue had not been waived, it would be without merit. Dison jumped bond in Mississippi and fled to Florida. He was arrested in Sebastian, Florida, where he had given the police an assumed name. When authorities in Mississippi learned of his true identity and location through the Automated Fingerprint Identification System, they contacted authorities in Florida only to learn that Dison had posted a cash bond and been released. He was subsequently arrested again, this time in Texas, and again he was using an assumed name. Eventually, he was extradited to Mississippi. Dison contends this was unduly prejudicial because jumping bond is a crime in and of itself, but the record shows that this was never argued at trial. Moreover, a Mississippi Rule of Evidence 403 balancing test does not exclude all prejudicial evidence; rather, it only excludes evidence if the trial judge concludes that the probative value is substantially outweighed by possible prejudice. Gore v. State, 37 So.3d 1178, 1184 (¶ 14) (Miss.2010). Further, a circuit court will only be reversed on its decision to admit such evidence if there is an abuse of discretion. Id. at 1183 (¶ 13); see Terrell v. State, 952 So.2d 998, 1005 (¶ 31) (Miss.Ct.App.2006). We find that given the record in this case, even if the issue had not been waived, the circuit court could not be found to have abused its discretion by admitting the testimony going to Dison’s out-of-state flight. This issue is without merit.

II. SUFFICIENCY AND WEIGHT OF THE EVIDENCE

¶ 16. In determining whether a verdict is supported by sufficient evidence, and whether a motion for a directed verdict or a JNOV should have been granted, the standard of review is whether when the evidence is viewed 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. Ivy v. State, 949 So.2d 748, 752 (¶ 14) (Miss.2007) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). Dison contends that the circumstantial evidence in this case is insufficient, and he cities to Hester v. State, 463 So.2d 1087 (Miss.1985). In Hester, the Mississippi Supreme Court quoted the standard of review as to whether circumstantial evidence will be found to be sufficient to sustain a conviction, stating:

It is fundamental that convictions of crime cannot be sustained on proof which amounts to no more than a possibility or even when it amounts to a probability, but it must rise to the height which will exclude every reasonable doubt; that when in any essential respect the state relies on circumstantial evidence, it must be such as to exclude every other reasonable hypothesis than that the contention of the state is true, and that throughout the burden of proof is on the State. It is our duty here to maintain these principles.

Id. at 1093 (quoting Westbrook v. State, 202 Miss. 426, 432-33, 32 So.2d 251, 252 (1947)).

¶ 17. Dison was charged with burglary of a dwelling under Mississippi Code Annotated section 97-17-23(1) (Rev. 2006), which provides that:

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.

In this case, the State was required to prove that Dison broke and entered an inner door in a dwelling with the intent to steal Mallette’s property. Dison argues that circumstantial evidence presented by the State was not sufficient to convict him of the crime. Dison maintains that the evidence proves that he was not the driver who fled from the vehicle because Officer Wilson identified the driver as an African American man. Dison also maintains that Pepper stole both Mallette’s property and his grandmother’s car, and there must have been a third person who was driving the car and that this person was the one that Officer Wilson observed fleeing. Di-son contends that the evidence is insufficient because it does not disprove his hypothesis of an unidentified third man. However, the State is not required to disprove every hypothesis; rather, it must disprove a “reasonable hypothesis.” See Hester, 463 So.2d at 1093. Even circumstantial evidence can be overwhelmingly convincing. Moses v. State, 30 So.3d 391, 395 (¶ 16) (Miss.Ct.App.2010).

¶ 18. The State introduced evidence showing that Dison slept in a bedroom directly next to Mallette’s bedroom. Mal-lette testified she habitually closed her door completely so that it latched securely because she had a roommate who had two cats to which she was allergic. Mallette testified that the cats had a habit of trying to get on her bed, and while the cats had recently moved out with the roommate, she was still in the habit of securely latching her bedroom door. Two days after the car chase, on August 20, 2008, Mallette identified her property that was seized in an inventory search of the vehicle which Dison used as his own and that which had been in the high-speed chase. Dison’s pre-arrest statement in which he accused Pepper of stealing the car was suspicious to say the least since Pepper remained with the car awaiting Officer Wilson’s return after Officer Wilson chased the fleeing driver. Pepper had the opportunity to flee, but did not. Pepper’s property was not found in the car, but Dison’s property was. Officer Wilson testified that Dison was evasive during initial questioning. Di-son had injuries consistent with running through a briar patch, and he did not have these injuries two days prior to the high-speed chase. Dison contends that Officer Wilson’s initial identification of Dison being African American mandates a finding that the fleeing driver was not him. Di-son’s tattoos were consistent with Officer Wilson’s observation of the man who had fled. The photographs of Dison’s arms, head, and torso show extensive tattooing; and in fact, Mallette testified that Dison was employed as a tattoo artist. The evidence of Dison’s heavy, dark tattooing provided the jury with a basis to resolve any apparent inconsistency in Officer Wilson’s testimony. Additionally, Dison’s continued flight through Florida and Texas evidence a guilty conscience. The verdict was supported by sufficient evidence, and there is no merit to this assignment of error.

¶ 19. In determining whether the weight of the evidence supports a verdict, the standard of review is that an appellate court will only disturb a verdict if the verdict is so contrary to the overwhelming weight of the evidence that to allow the verdict to stand would sanction an unconscionable injustice. Ivy, 949 So.2d at 753 (¶ 21). In this case, there was no direct evidence of Dison being the person who stole Mallette’s property. Nonetheless, the record shows that the jury was given a circumstantial-evidence instruction. Di-son’s theory of the unidentified third man was presented to the jury, and the jury rejected it. The record does not show any error at trial or any indication of unfair prejudice toward Dison. This issue is without merit.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF CONVICTION OF BURGLARY AND SENTENCE AS A HABITUAL OFFENDER OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A $10,000 FINE AND $150 IN RESTITUTION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIBBEHA COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ„ CONCUR.


text:
    Joseph WILLIAMS a/k/a Too Sweet, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00803-COA.
    Court of Appeals of Mississippi.
    May 17, 2011.

      W. Daniel Hinchcliff, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Joseph Williams was convicted of aggravated assault. On appeal, Williams argues that his conviction should be reversed because: (1) the circuit court erred when it allowed the prosecutor, witnesses, and the jury instructions to refer to him by his nickname, Too Sweet; (2) the circuit court erred when it denied his motion to strike a prospective juror for cause; and (3) the evidence was insufficient to support his conviction. We find no error and affirm.

FACTS

¶ 2. On the evening of October 31, 2008, Joe Bibbs, Tyrone Forrest, and Williams got together in Winona, Mississippi, for a night of drinking and hanging out. They bought some liquor and drove around for a while in Williams’s truck. They then went to Earnest Curtis’s house, which was on a country road outside of the Winona city limits. The three men then went to a local night club, while Curtis stayed home. A few hours later, at approximately midnight, the three men returned to Curtis’s house.

¶ 3. Curtis testified that he was asleep in the bed when he heard a truck pull up in the driveway. He got out of bed and went to the front door to look outside. He saw Forrest in the truck vomiting, while Bibbs was outside the truck with his shirt off. Curtis thought Bibbs looked angry.

¶ 4. Bibbs testified that he and Williams had gotten into an argument. Bibbs wanted to go back to Winona to see his girlfriend, but Williams refused to drive him there. Williams wanted to spend the night at Curtis’s house to avoid roadblocks.

¶ 5. Curtis testified that he heard gunshots a few moments later. He then saw that Bibbs was lying on the ground and that Williams had a handgun. Bibbs testified that he was at the back of the truck when Williams came around from the driver’s side and started firing the handgun at him. Williams shot Bibbs eight or nine times. Bibbs survived.

¶ 6. Williams and Forrest loaded Bibbs into Curtis’s car and drove him to the hospital. Bibbs testified that as they were driving to the hospital in Winona, Williams repeatedly asked him what he would tell the hospital staff about the incident. Bibbs said he was afraid of what Williams might do, so he decided to make up a fake story. He told security personnel at the hospital that he had been shot at a night club.

¶ 7. Bibbs was later transported to the University of Mississippi Medical Center (UMMC) in Jackson, Mississippi, for further medical care. Bibbs testified that once he was in Jackson and away from Williams, he felt safe enough to tell the truth about the incident. He told UMMC personnel what had really happened, and they called the police.

¶ 8. Williams was charged with aggravated assault. The jury returned a verdict of guilty. The circuit court sentenced Williams to serve twenty years in the custody of the Mississippi Department of Corrections, with eight years suspended and five years of supervised probation.

ANALYSIS

1. Whether the circuit court committed plain error when it failed to exclude Williams’s nickname, Too Sweet.

¶ 9. At trial, Williams was identified by his nickname, Too Sweet, on several occasions. The prosecutor used the nickname twice in his opening statement and once in his closing argument. Two witnesses used the nickname a total of five times. In addition, the jury instructions referred to “Williams a/k/a Too Sweet.”

• ¶ 10. Williams argues that the nickname served no evidentiary purpose and that the prosecutor used it merely to inflame the jury. He argues that the nickname should have been excluded as inadmissible character evidence under Mississippi Rule of Evidence 404.

¶ 11. However, Williams failed to raise a contemporaneous objection to use of the nickname at trial. Therefore, this issue is barred from consideration on appeal unless the circuit court committed plain error. Willis v. State, 999 So.2d 411, 414 (¶ 9) (Miss.Ct.App.2008).

¶ 12. “Only an error so fundamental that it creates a miscarriage of justice rises to the level of plain error.... Plain error occurs where the substantive rights of a defendant are violated.” Id. at 414 (¶ 9) (citing Dixon v. State, 953 So.2d 1108, 1116 (¶ 22) (Miss.2007)). In Willis, this Court held there was no plain error where the prosecutor elicited the defendant’s nickname, Little Black, from a witness. Id. at 414 (¶¶ 8, 10). Likewise, we find no plain error here. Therefore, this issue is procedurally barred.

2. Whether the circuit court erred when it denied Williams’s motion to strike a prospective juror for cause.

¶ 13. Williams argues the circuit court committed reversible error when it denied his motion to strike a prospective juror for cause. He argues that the juror should have been stricken because she was friends with Curtis, one of the State’s key witnesses.

¶ 14. “A person is competent to be a juror if the juror has no interest, bias or prejudice in the prosecution, and the juror has no desire to reach a result other than that gained from the evidence and the law in the case.” Reed v. State, 764 So.2d 496, 499 (¶ 9) (Miss.Ct.App.2000) (citations omitted). “This Court may not reverse the [circuit court’s] decisions regarding jury selection unless there is an abuse of discretion.” Id. (citation omitted).

¶ 15. During voir dire, Williams’s attorney asked the prospective jurors if any of them were friends with Curtis. Judy Jones responded that Curtis had been in the National Guard with her husband and that she and Curtis were “pretty close friends.” When asked if that would influence her, she said, “It might.” When asked if it would prevent her from being fair and impartial, she said, “I don’t think so.”

¶ 16. The circuit judge then asked Jones some follow-up questions. He asked her if her relationship with Curtis would cause her to believe Curtis’s testimony more than any other witness’s testimony. She answered, “No.” He then asked her if she could decide the case based on the evidence and the law. She answered, “Yes.”

¶ 17. Williams’s attorney moved to strike Jones for cause, and the circuit court denied the motion. Williams’s attorney did not use a peremptory strike on her, and she was ultimately impaneled and sat on the jury.

¶ 18. The Mississippi Supreme Court addressed the issue of a relationship between a juror and a witness in Owens v. State, 177 Miss. 488, 171 So. 345 (1936). There, two jurors were related to two key witnesses for the State. Id. at 504-05, 171 So. at 349-50. The two jurors assured the circuit court that they would treat their relatives’ testimonies the same as other witnesses’ testimonies and that they would decide the case based on the evidence and the law. Id. The circuit court accepted their assurances and allowed the two jurors to sit on the panel, and the Mississippi Supreme Court found no reversible error. Id.

¶ 19. This Court has held that: “ ‘[J]u-rors take their oaths and responsibilities seriously, and when a prospective juror assure[s] the court that, despite the circumstance that raises some question as to his qualification, this will not affect his verdict, this promise is entitled to considerable deference.’ ” Parker v. State, 825 So.2d 59, 64 (¶16) (Miss.Ct.App.2002) (quoting Scott v. Ball, 595 So.2d 848, 850 (Miss.1992)).

¶ 20. Here, Jones assured the circuit court that her friendship with Curtis would not affect her judgment. She did appear to change her position when the circuit judge asked her the follow-up questions. We find that the circuit court did not abuse its discretion in accepting her assurances and allowing her to sit on the jury. Therefore, we find this issue has no merit.

3. Whether the evidence was sufficient to support the conviction.

¶ 21. Williams argues that the State failed to present sufficient evidence that he shot Bibbs “purposely” or “knowingly.” His defense was that he suffered from post-traumatic-stress syndrome, which occasionally caused him to blackout. He claimed that he was blacked out at the time of the shooting; therefore, he could not have acted purposely or knowingly. He challenged the sufficiency of the evidence in a motion for a directed verdict, which was denied.

¶ 22. When reviewing the denial of a motion for a directed verdict based on an objection to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the State to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted).

¶ 23. Aggravated assault is defined by Mississippi Code Annotated section 97-3-7(2)(b) (Supp.2010), which, in pertinent part, states:

A person is guilty of aggravated assault if he ... attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm[.]

The indictment charged Williams with “purposely” or “knowingly” causing bodily injury to Bibbs with a deadly weapon. Thus, the State was required to prove beyond a reasonable doubt that Williams acted with either of those mental states.

¶ 24. There was ample evidence for a rational juror to determine beyond a reasonable doubt that Williams shot Bibbs either purposely or knowingly. Bibbs testified that he and Williams had gotten into an argument. Bibbs wanted to go back to Winona to see his girlfriend, but Williams refused to drive him there. Bibbs testified that he was standing behind the truck when Williams came around from the driver’s side and opened fire on him. Williams shot Bibbs eight or nine times. A rational juror could infer that Williams repeatedly shot Bibbs out of anger aroused by their argument.

¶ 25. As for Williams’s theory of defense of post-traumatic-stress syndrome, the only evidence before the jury that supported the theory was a statement Williams had made to the police. In that statement, he said he remembered most of the events that night. He remembered riding around in his truck with Bibbs and Forrest. He remembered going to Curtis’s house. He remembered carrying Bibbs to the hospital. He remembered talking to hospital employees about Bibbs’s wounds. But he could not remember the shooting. When asked by the police why he could not remember the shooting, Williams mentioned that he suffered from post-traumatic-stress syndrome.

¶ 26. Bibbs testified that, as they were driving to the hospital in Winona, Williams repeatedly asked him what he would tell the hospital staff about the incident. That testimony could indicate to a rational juror that Williams was aware of what he had done and was worried about the consequences.

¶ 27. Since there was evidence that Williams was aware of his actions both before and after the shooting, a rational juror could infer that he was aware of his actions at the time of the shooting. This issue has no merit.

¶ 28. THE JUDGMENT OF THE MONTGOMERY COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH EIGHT YEARS SUSPENDED AND FIVE YEARS OF SUPERVISED PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONTGOMERY COUNTY.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. MYERS, J., NOT PARTICIPATING.


author: MURDOCK, Justice.

text:
    Ex parte James Allen HARRISON, Jr. (In re James Allen Harrison, Jr. v. State of Alabama).
    1070223.
    Supreme Court of Alabama.
    April 23, 2010.
    Lisa W. Borden, Susan S. Wagner, and Linda J. Peacock of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Birmingham; and James F. Barger of Frohsin & Barger, P.C., Birmingham, for petitioner.
    Troy King, atty. gen., and J. Clayton Crenshaw and Todd E. Hughes, asst, at-tys. gen., for respondent.

       Justice Shaw was a member of the Court of Criminal Appeals when that court considered this case.

   MURDOCK, Justice.

James A. Harrison, Jr., petitioned this Court for a writ of certiorari to review whether the Court of Criminal Appeals erred in affirming the Russell Circuit Court’s denial of his Rule 32, Ala. R.Crim. P., petition for postconviction relief as to Harrison’s claims of juror misconduct on the ground that those claims were precluded under Rule 32.2(a)(3) and (5), Ala. R.Crim. P. We issued the writ of certiora-ri to review only whether the unpublished-memorandum affirmance by the Court of Criminal Appeals as to that issue conflicts with this Court’s decision in Ex parte Burgess, 21 So.3d 746 (Ala.2008). For the reasons discussed below, we hold that Harrison’s juror-misconduct claims are not precluded, and we reverse the judgment of the Court of Criminal Appeals.

I. Facts and Procedural History

In 2000, Harrison was convicted of murder made capital because it was committed during the course of a robbery in the first degree. See Ala.Code 1975, § 13A-5-40(a)(2). The victim, Thomas Fred Day, Jr., was a handicapped individual who had suffered brain damage and permanent damage to one arm as the result of an industrial accident. The jury recommended by a vote of 11-1 that Harrison be sentenced to death; the trial judge accepted the jury’s recommendation and sentenced Harrison to death. Harrison’s conviction and sentence were affirmed on direct appeal. See Harrison v. State, 869 So.2d 509 (Ala.Crim.App.2002), cert. denied, 869 So.2d 529 (Ala.2003) (note from reporter of decisions), cert. denied, Harrison v. Alabama, 540 U.S. 1113, 124 S.Ct. 1042, 157 L.Ed.2d 902 (2004).

’ In July 2004, Harrison filed the present Rule 32, Ala. R.Crim. P., petition. After the State filed its response, Harrison filed an amended petition. The State then filed an answer to and a motion to dismiss the amended petition. In pertinent part, Harrison’s petition as amended alleged that two jurors had failed to provide accurate answers to questions propounded during the voir dire examination and that their failure to do so amounted to juror misconduct that entitled Harrison to a new trial.

Harrison’s Rule 32 petition alleged that juror A.T.P. failed to respond to four questions propounded by the trial court during voir dire and that she should have responded affirmatively to all four questions. Upon learning of Harrison’s allegations, A.T.P. submitted an affidavit to the trial court; she confirmed some of Harrison’s allegations and attempted to explain why she had failed to respond to each question.

As for the voir dire questions at issue, the trial court first asked the members of the jury venire: “Is there any member of the jury [who has been] or [has] had an immediate family member who was the victim of a robbery, and a robbery is a situation where someone uses force or threatens the immediate use of force to take property from your person?” A.T.P. failed to respond to the question. Harrison alleged, and A.T.P. confirmed in her affidavit, that she had been the victim of three separate robberies in 1994,1997, and 1999, all of which occurred at her place of employment in Georgia.

Harrison alleged in his Rule 32 petition that

“[i]n all three robberies, the perpetrator placed a gun to [A.T.P.’s] head and demanded that she empty the cash register. The robberies scarred [A.T.P.] so severely that she needed her husband to switch work shifts from night to day for fear of being left alone at night. After the first robbery, [A.T.P.] stayed out of work for several weeks as a result of the trauma. A.T.P. ultimately testified as a witness in the trial for the first robbery/[] and the defendant was convicted.”

A.T.P. stated in her affidavit that the reason she did not respond to the trial court’s question as to whether she had been the victim of a robbery was that she “thought [the court] was asking if we had been a victim in Alabama.” She also stated that the fact that she had been a victim of robberies “in no way affected my verdict in the guilt phase or the penalty phase of Harrison’s trial.”

Second, the trial court asked the members of the jury venire:

“Has any member of the jury been indicted within the last 12 months for a felony offense or for the offense of murder with which the Defendant is charged? And a felony offense is defined as a crime involving punishment in the penitentiary for not less than one year and one day.”

A.T.P. failed to respond to the question. Harrison alleged in his Rule 32 petition that “[o]n July 20, 2000, only one month prior to Mr. Harrison’s trial, a Muscogee County[, Georgia,] judge accepted A.T.P.’s guilty plea to six counts of financial transaction card fraud, punishable by up to twelve years in prison.” Copies of the court records of these charges, certified by Muscogee County, Georgia, court officials and attached as an exhibit to A.T.P.’s affidavit, show that the charges were filed on May 22, 2000.

A.T.P. stated in her affidavit that she “did not remember that the charges had been filed within 12 months of Harrison’s trial,” that she “was not aware, or had forgotten, that the charges were felony offenses,” and that she was “given first offender treatment.” A.T.P. stated that she “did not plead guilty” and that she was “placed on probation, ordered to pay a fíne, and ordered to perform some community service” as a result of the charges. She also explained that she was

“told by someone at the pardons and parole office, [whose] name I cannot remember, that I was not convicted of a felony and, if asked, could say I was not convicted of a felony. Because I had settled those cases, I did not think about them while being questioned by [the court] and the attorneys for Harrison and the State.”

As she did with respect to the issue whether she had ever been a robbery victim, A.T.P. stated in her affidavit that the charges in no way affected her deliberations as a juror in Harrison’s trial.

Third, the trial court asked the members of the jury venire: “[H]ave you been prosecuted or had an immediate family member that’s been prosecuted in a legal matter in the past by the District Attorney’s office?” A.T.P. failed to respond to the question. Harrison alleged in his Rule 32 petition, and A.T.P. confirmed in her affidavit, that “her half-brother had been prosecuted for shooting his wife and had been incarcerated for the crime.”

A.T.P. explained in her affidavit that she did not respond to this question because the shooting “occurred in 1972 or 1973 when I was six or seven years old.” She stated that she had “no personal knowledge of what happened] and, at the time of Harrison’s trial, had not thought about it in a number of years.” A.T.P. stated that the prosecution and conviction of her half-brother did not affect her deliberations as a juror in Harrison’s trial.

Fourth, the trial court asked the members of the jury venire: “Is there any member of the jury who has been represented by the District Attorney’s office in the past in some sort of legal matter?” A.T.P. failed to respond to the question. Harrison alleged in his Rule 32 petition that A.T.P. had failed to disclose that the district attorney “had worked with [A.T.P.’s] husband in seeking child support.”

A.T.P. stated in her affidavit that the assistance her husband received in a child-support matter from the district attorney “occurred before he and I were married.” She stated that she “knew he had gotten some legal help collecting child support” but that she “did not know it [came] from the district attorney’s office.” A.T.P. explained that she never accompanied her husband to court or to the district attorney’s office regarding the child-support matter. A.T.P. stated that even if she had known that the district attorney had helped her husband, it would not have affected her deliberations as a juror in Harrison’s trial.

Harrison also alleged in his Rule 32 petition that juror H.W.’s responses to questions posed by Harrison’s attorney during the voir dire examination were inaccurate. Specifically, the following colloquy occurred between Harrison’s attorney and juror H.W. during voir dire:

“MR. COLLINS: Have you ever served on a jury?
“[H.W.]: Yeah.
“MR. COLLINS: When was that?
“[H.W.]: Last year. But that was penny-ante stuff, stealing. I never [got] called, but I came up here every morning.
“MR. COLLINS: Just like this?
“[H.W.]: Yeah.
“MR. COLLINS: But you never got picked?
“[H.W.]: Yeah.
“MR. Collins: So you never have actually served on a jury?
“[H.W.]: No.”

Harrison alleged in his Rule 32 petition that H.W. “had actually sat on three juries prior to Mr. Harrison’s case, one of which involved a defendant who was convicted of burglary and sentenced to jail. In all three cases, the defendants were found guilty.” H.W. did not submit an affidavit.

In August 2006, the court summarily dismissed Harrison’s amended Rule 32 petition. On appeal, the Court of Criminal Appeals, in an unpublished memorandum, affirmed the trial court’s denial of Harrison’s Rule 32 petition. Harrison v. State (No. CR-05-2411), 14 So.3d 197 (Ala.Crim.App.2007) (table). As to Harrison’s claims of juror misconduct, that court stated in its unpublished memorandum that a claim of juror misconduct that rises to the level of a constitutional violation

“does not have to meet the requirements of newly discovered evidence under Rule 32.1(e), Ala. R.Crim. P., but the petitioner must show that ‘the information was not known, and could not reasonably have been discovered, at trial or in time to raise the issue in a motion for a new trial or on appeal.’ Ex parte Pierce, 851 So.2d 606, 616 (Ala.2000). The trial court found that Harrison’s counsel interviewed at least one juror prior to sentencing and that Harrison did not show why any alleged misconduct that was not already known to him could not have been discovered at that time. Harrison’s reliance on [Ex parte Dobyne, 805 So.2d 763 (Ala.2001),] is misplaced. In both Dobyne and Pierce, the trial court erroneously applied the Rule 32.1(e) requirements to a Rule 32.1(a) claim. Pierce was remanded to the trial court for consideration under the correct requirements, but remand was not required in Dobyne because the trial court had made an alternative finding that the appellant’s claims lacked merit.
“... Harrison has not shown that the trial court erred in finding that his juror-misconduct claims were procedurally barred.”

Harrison then petitioned this Court for certiorari review of the decision of the Court of Criminal Appeals. We granted the writ to consider whether the decision of the Court of Criminal Appeals conflicts with Ex parte Burgess, 21 So.3d 746 (Ala.2008).

II. Standard of Review

“‘This Court reviews pure questions of law in criminal cases de novo.’ ” Ex parte Morrow, 915 So.2d 539, 541 (Ala.2004) (quoting Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003)).

III. Analysis

The Court of Criminal Appeals agreed with the trial court that Harrison had failed to demonstrate why any alleged juror misconduct was not known to him or could not have been discovered by him prior to his sentencing, noting that his counsel had interviewed at least one juror before Harrison was sentenced. In Burgess, however, this Court reversed a decision by the Court of Criminal Appeals that was based on reasoning similar to that court’s reasoning here.

We explained in Burgess:

“Burgess reasonably expected that potential jurors answered accurately the questions posed to them during the voir dire examination. It is unreasonable to hold that a defendant must uncover any and all juror misconduct in the form of inaccurate responses to voir dire examination in time to raise such claims in a motion for a new trial or on appeal. Requiring a defendant to raise such claims of juror misconduct during the interval between the voir dire examination and the filing of posttrial motions places an impracticable burden on defendants. In this case, there is no evidence before us indicating that Burgess suspected or should have suspected that any jurors did not accurately answer a question during the voir dire examination ....
“The trial court, in finding that Burgess’s claims were procedurally barred by Rule 32.2(a)(3) and (a)(5), found ‘that the information obtained from the jurors was available to newly appointed appellate counsel and could have been raised in [Burgess’s] Motion for New Trial. All counsel had to do was to interview the jurors in post-trial interviews just as was done by petitioner’s counsel herein.’ However, it is unreasonable to require that a defendant, unaware of any failure to answer correctly questions posed during the voir dire examination, must contact each juror and ask whether he or she accurately and truthfully answered such questions. Jury service is sufficiently disruptive of a citizen’s regular activities without this Court announcing a rule that would routinely subject jurors to potentially insulting postver-dict interrogation concerning their veracity. Absent any evidence that a telephone call to some or all the jurors would have been nothing more than a mere fishing expedition, we cannot hold on this record that Burgess’s claims are precluded.”

Burgess, 21 So.3d at 754-55 (emphasis added).

The State acknowledges this Court’s holding in Burgess. The State contends, however, that Harrison failed to explain in his Rule 32 petition why he could not have reasonably discovered the alleged juror misconduct in time to assert that claim in his motion for a new trial or on appeal.

As we indicated in Burgess, however, the very nature of juror misconduct is such that a defendant typically will not be aware that there is any misconduct to be discovered. Placing a requirement on a defendant to uncover any and all possible juror misconduct without reason to know what type of misconduct the defendant might be looking for or, in fact, whether any misconduct occurred, would require criminal defendants to embark on a broad-ranging fishing expedition at the conclusion of every criminal trial or waive the right to complain of any juror misconduct the defendant might ultimately discover. Moreover, when it comes to voir dire examination of jurors, the defendant has every right to expect that jurors will provide truthful and accurate responses. “ ‘[V]oir dire’ [is] an ancient phrase which literally means ‘to speak the truth.’ ” 6 Wayne R. LaFave et al., Criminal Procedure § 22.3(a) (3d. ed. 2007). As the Court of Criminal Appeals observed in State v. Freeman, 605 So.2d 1258, 1259 (Ala.Crim.App.1992): “It is fundamental to our system of impartial justice that “‘[pjarties have a right to have questions answered truthfully by prospective jurors to enable them to exercise their discretion wisely in exercising their peremptory strikes.” ’ ” (quoting Ex parte O’Leary, 438 So.2d 1372, 1373 (Ala.1983), quoting in turn Ex parte O’Leary, 417 So.2d 232, 240 (Ala.1982)). As in Burgess, there is no evidence in the record indicating that Harrison should have been aware before he filed his motion for a new trial or his direct appeal that some jurors had provided untruthful or inaccurate answers during voir dire examination.

Based on the foregoing, we conclude that Harrison’s claims in his Rule 32 petition that two jurors failed to answer accurately questions posed to them during the voir dire examination are not precluded. We therefore reverse the judgment of the Court of Criminal Appeals and remand this case for that court, in turn, to remand it to the trial court for an evidentiary hearing on the merits of Harrison’s juror-misconduct claims and a determination as to whether Harrison is entitled to a new trial.

REVERSED AND REMANDED.

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

SHAW, J., recuses himself.

      . A.T.P. confirmed in her affidavit that she testified as a witness in one of the robbery trials.

      . A.T.P. pleaded guilty to all six charges. She received a two-year sentence on each of the six charges, some of the sentences to be served concurrently and some to be served consecutively. The sentences were suspended pending completion of four years of probation.

      . See, e.g., Tomlin v. State, 695 So.2d 157, 169 (Ala.Crim.App.1996) (observing that " ‘[i]t is fundamental to our system of impartial justice that " '[pjarties have a right to have questions answered truthfully by prospective jurors to enable them to exercise their discretion wisely in exercising their peremptory strikes.’ ” ’ State v. Freeman, 605 So.2d 1258, 1259 (Ala.Crim.App.1992) (quoting Ex parte O'Leary, 438 So.2d 1372, 1373 (Ala.1983), quoting in turn Ex parte O’Leary, 417 So.2d 232, 240 (Ala.1982)). 'Voir dire’ is an ancient phrase which literally means ‘to speak the truth.' W. LaFave & J. Israel, Criminal Procedure § 22.3(a) (2d. ed. 1992).”).


author: MAIN, Judge.

text:
    James Allen HARRISON, Jr. v. STATE of Alabama.
    CR-05-2411.
    Court of Criminal Appeals of Alabama.
    June 25, 2010.
    James Fredrick Barger, Jr., Birmingham; Lisa Wright Borden, Birmingham; and Susan S. Wagner, Birmingham, for appellant.
    Troy King, atty. gen., and Michael A. Nunnelley, asst. atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

MAIN, Judge.

In an unpublished memorandum issued on August 21, 2007, this Court affirmed the circuit court’s summary denial of the Rule 32, Ala.R.Crim.P., petition for post-conviction relief filed by James Allen Harrison, Jr. See Harrison v. State, (No. CR-05-2411) 14 So.3d 197 (Ala.Crim.App.2007) (table). The Alabama Supreme Court reversed this Court’s judgment and remanded the cause for this Court to remand the cause to the circuit court for “an evidentia-ry hearing on the merits of Harrison’s juror-misconduct claims and a determination as to whether Harrison is entitled to a new trial.” Ex parte Harrison, 61 So.3d 986, 991 (Ala.2010). Accordingly, we remand this cause to the Russell Circuit Court for proceedings consistent with the Alabama Supreme Court’s opinion. Due return shall be filed in this Court within 42 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

WISE, P.J., and WELCH, WINDOM, and KELLUM, JJ., concur.

      . Judge Main was not on the Court when the unpublished memorandum affirming the circuit court’s order was issued. The case was assigned to Judge Main when the Alabama Supreme Court remanded it to this Court.

       Note from the reporter of decisions: On October 29, 2010, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion.