author: GASKINS, J.

text:
    Judith FRYE, Plaintiff-Appellant v. OLAN MILLS, Defendant-Appellee.
    Nos. 44,192-WCA, 44,193-WCA, 44,194-WCA, 44,195-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.

      Judith Frye, In Proper Person-Appellant.
    Juge, Napolitano, Guilbeau, Ruli, Frie-man & Whiteley by Denis P. Juge, Metair-ie, Keith E. Pittman, for Defendanh-Appel-lee.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.
   GASKINS, J.

Lin these four consolidated appeals, the claimant, Judith Frye, argues that the workers’ compensation judge (WCJ) erred in denying her claims for more medical and indemnity benefits for two separate work-related injuries. We affirm the ruling of the WCJ.

FACTS

In September 2001, the claimant, a photography assistant in the church directory division of Olan Mills, was injured when a door struck her right heel while she was working. She received medical and indemnity benefits but eventually resumed her job. In April 2004, the claimant filed a disputed claim for compensation with the Office of Workers’ Compensation (OWC) pertaining to this incident; she requested medical treatment and compensation. The employer filed an answer and exception in which it admitted a work-related accident but denied an injury.

In May 2004, the claimant was at a church working on them directory when she had to descend some stairs with a cart. She lost her balance and had to grab the cart to try to stop it from falling. She did ■not fall or hit the wall. In November 2004, the claimant filed a disputed claim for compensation with the OWC for this accident; according to the claimant, she injured her “right upper extremity.” In its answer, the employer denied a work-related accident or the employee’s entitlement to compensation or treatment. In January 2005, this matter was consolidated with the claim for the September 2001 incident.

lain April 2006, the claimant filed an amended claim in which she requested penalties and attorney fees and asserted that the “accident caused aggravated or made pre-existing condition worse [sic].” In its answer, the employer denied that the claimant was entitled to any additional benefits, penalties or attorney fees. Yet another amended disputed claim for compensation was filed in May 2006. In response, the employer asserted that the claimant’s problems had resolved as of November 26, 2002, for the first injury and September 24, 2005, for the second one. In September 2006 and February 2007, the claimant filed additional disputed claims for workers’ compensation asserting the same two injuries. By joint motion, all of the claims were consolidated in May 2007.

Trial was held in July 2007. The claimant was the only witness to testify in person. Among the evidence introduced at trial were the claimant’s medical records and the depositions of two doctors. The medical records showed that the claimant suffered from a myriad of medical conditions (including diabetes, osteoarthritis, diverticulitis, hyperthyroidism, hypertension, and cardiac problems) that were unrelated to her work injuries. The claimant was repeatedly confronted by her medical records in which her physicians concluded that while she suffered injuries in the work-related accidents, the injuries eventually resolved and she was able to return to work at full duty; she generally denied awareness of this information. The claimant’s testimony was often confusing and contradictory. At various points, she admitted that she did not injure her left hand in the second accident; at others, she asserted that she hurt both hands. At |3the end of her testimony, the employer orally moved to amend its pleadings to include a violation of La. R.S. 23:1208, which provides for forfeiture of benefits due to wilful misrepresentations.

On November 14, 2007, the WCJ issued oral reasons for judgment. The WCJ found that the claimant failed to meet her burden of proof to show that she was entitled to any further indemnity or medical benefits as a result of her work-related accidents on September 7, 2001, and May 24, 2004. The WCJ further noted that it was “highly improbable” that the disability she was claiming had been caused by either work-related accident. According to the WCJ, the claimant’s testimony was so inconsistent and lacking in veracity that it did not aid her case. Accordingly, the WCJ dismissed her claims with prejudice at her cost. However, the WCJ denied the employer’s request to find that the claimant violated La. R.S. 23:1208; it declined to find that she made deliberate misrepresentations to obtain workers’ compensation benefits. Judgment was signed December 3, 2007. The claimant’s motion for new trial was denied in January 2008; that judgment was signed February 29, 2008.

The claimant appealed. She filed a motion to present evidence in this court; we denied the motion in January 2009 on the grounds that many of the documents she submitted were already in the record and that as a court of review we do not consider new evidence.

LAW

An employee is entitled to compensation benefits if she receives a personal injury by an accident arising out of and in the course of her 14empIoyment. La. R.S. 23:1031. The employee has the burden of proving, by a preponderance of the evidence, that her disability is related to an on-the-job injury. Anthony v. BE & K Construction, 32,729 (La.App. 2d Cir.5/10/00), 760 So.2d 608, writ denied, 2000-1673 (La.9/15/00), 768 So.2d 1280.

Under the provisions of La. R.S. 23:1221(3)(a), an employee is entitled to receive supplemental earnings benefits (SEBs) if she sustains a work-related injury that results in her inability to earn 90 percent or more of her average pre-injury wage. Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in her inability to earn that amount under the facts and circumstances of the individual case. Smith v. Bossier Parish School Board, 39,590 (La.App. 2d Cir.4/6/05), 899 So.2d 747, writ denied, 2005-1199 (La.11/28/05), 916 So.2d 147.

A workers’ compensation claimant seeking temporary or permanent total disability benefits bears the burden of proving, by clear and convincing evidence, her inability to engage in any type of employment. Greis v. Lake Charles Memorial Hospital, 1997-1258 (La.App. 3d Cir.3/6/98), 709 So.2d 986, writs denied, 1998-0937 & 1998-0939 (La.5/15/98), 719 So.2d 467.

Under La. R.S. 23:1203, medical payments are separate and distinct from compensation indemnity benefits. A workers’ compensation claimant may recover medical expenses that are reasonably necessary for the treatment of a medical condition caused by a work-related injury. The | ¡^plaintiff must prove the necessity of the treatment and the causal connection between the treatment and the employment-related accident by a preponderance of the evidence. Taylor v. Wal-Mart Stores, Inc., 40,179 (La.App. 2d Cir.9/21/05), 914 So.2d 579, writ not considered, 2006-0144 (La.4/17/06), 926 So.2d 500, cert. denied, 549 U.S. 1157, 127 S.Ct. 982, 166 L.Ed.2d 783 (2007).

Whether the claimant has carried her burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Taylor v. Hollywood, Casino, 41,196 (La.App. 2d Cir.6/28/06), 935 So.2d 293; City of Shreveport v. Casciola, 43,132 (La.App. 2d Cir.3/26/08), 980 So.2d 203. Factual findings in workers’ compensation cases are subject to the manifest error rule. Winford v. Conerly Corporation, 2004-1278 (La.3/11/05), 897 So.2d 560; City of Shreveport v. Casciola, supra.

Under the manifest error rule, the reviewing court does not decide whether the factfinder was right or wrong, but only whether its findings are reasonable. Winford, supra; Stobart v. State, Department of Transportation and Development, 617 So.2d 880 (La.1993). The manifest error standard applies even when the workers’ compensation judge’s decision is based upon written reports, records or depositions. Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992); Alexander v. Brookshire Grocery Company, 42,855 (La.App. 2d Cir.1/9/08), 975 So.2d 100, writ denied, 2008-0503 (La.4/25/08), 978 So.2d 367.

When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon preview, even though the appellate court may feel its own inferences and evaluations are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there are two permissible views of the evidence, the factfin-der’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra; Winford, supra.

As a general rule, the testimony of a treating physician should be accorded greater weight than that of a physician who examines a patient only once or twice. However, the treating physician’s testimony is not irrebuttable, and the trier of fact is required to weigh the testimony of all medical witnesses. Mosley v. Pennzoil Quaker State, 37,199 (La.App. 2d Cir.7/23/03), 850 So.2d 1100, writ denied, 2003-2412 (La.11/21/03), 860 So.2d 553.

An independent medical examiner (IME)’s medical conclusions should be given significant weight because the IME is an objective party. Nevertheless, the opinion of the IME is not conclusive and the WCJ must evaluate all of the evidence presented in making a decision as to a claimant’s medical condition. Mosley, supra.

While the treating physician’s testimony is normally given substantial weight, the court-appointed expert’s opinion must be considered as prima facie evidence of the facts therein stated. La. R.S. 23:1123; Fritz v. Home Furniture-Lafayette, 95-1705 (La.App. 3d Cir.7/24/96), 677 So.2d 1132.

LMEDICAL EVIDENCE

Foot injury

Following the September 2001 door accident, the claimant was treated by Dr. Don Burt of the Bone and Joint Clinic about a week after the incident. He found evidence of contusion with no indication of a permanent disability; he stated that she should be able to return to work within four days of seeing him.

She later saw her internal medicine doctor, Dr. Leslie Sewell, in mid-to-late 2002. Dr. Sewell’s impression was that the claimant had diabetes mellitus with mild peripheral neuropathy of her right foot; the doctor sought to educate her on diabetic foot disease.

Dr. Sewell referred the claimant to Southside Foot Clinic in June 2002. She was placed in a cast boot which was initially beneficial. Dr. Richard Havens, a podiatrist, referred her to Dr. James Lillich, an orthopedic specialist.

In September 2002, Dr. Lillich of Orthopedic Specialists of Louisiana examined the claimant to give a second opinion as to her right foot; his impressions were post contusion of the Achilles tendon insertion with probable mild tendonosis and equinus contracture of the foot with weakness of the anterior leg musculature. He recommended physical therapy. On October 9, 2002, she saw another doctor in that practice, Dr. G. Michael | sHaynie, who told her she could return to work as long as she continued physical therapy.

In November 2002, Dr. Jenness Courtney, III, of Northwest Louisiana Physical Medicine, noted an unremarkable MRI when he saw the claimant for right heel pain and ankle weakness secondary to a contusion injury. An EMG exam conducted then showed an old peroneal mononeu-ropathy on the right, which was resolving. He recommended physical therapy for a month. In December 2002, Dr. Courtney signed a report attesting that the claimant was at maximum medical improvement (MMI) and capable of returning to work.

Also in November 2002, the claimant was treated by Dr. Gordon Mead, who diagnosed a contusion of the right heel; he believed her recovery was prolonged by an old peroneal nerve injury. He agreed with a course of physical therapy for six to eight weeks, after which she should be at MMI. He opined that she could return to work which did not involve standing, climbing or jumping. He did not believe that her peroneal nerve problem had anything to do with her work-related injury. A physical therapist note from Willis Knighton dated November 12, 2002, stated that the claimant was physically able to return to work, but had not.

In January 2003, Dr. Sewell referred the claimant to Dr. Mary McWilliams, a board-certified neurologist. She diagnosed the claimant as suffering from bursitis in her right heel; she also had bilateral muscle contracture, or shortening of the muscles, in her calf muscles which the doctor described as being the result of a longstanding lack of exercise and |8was not related to her 2001 injury. While she did not consider the claimant to be at MMI on January 16, 2003, Dr. McWilliams agreed with Drs. Courtney and Mead that her peroneal mononeuropathy was not a result of the work injury. She also concluded that the claimant was capable of returning to regular job duties. Dr. McWilliams was unable to relate the bursitis to her work injury, noting that bursitis can develop in anyone. When she saw the claimant on January 28, 2003, she noted that her complaints were out of proportion to the doctor’s findings. By the time of her appointment on February 10, 2003, the claimant was pain free and displayed no evidence of injury. In a report Dr. McWilliams completed in July 2003, she stated that the claimant was at MMI and completely released from care due to the work injury. In her deposition, Dr. McWilliams testified that the claimant’s foot injury resolved; she did not expect it to return and if it did, she opined that it would not be related to her 2001 injury.

In late 2004, the claimant began seeking medical treatment for her foot again. When she saw Dr. Timothy Talbert at Minden Orthopaedics in November 2004, he assessed her as having peroneal tendonitis and calcaneal ossification. He placed her in a short leg walking cast.

In November 2006, she saw Dr. Bryan Randolph, a podiatrist. His impression was “Achilles tendinitis vs peroneal tendonitis right.”

The claimant saw Dr. Steven Atchison in April 2007. The medical records from her visit indicate that she told him that her injury happened in | in2001, she recovered, and then she had recurrences in 2005 and in November 2006. The doctor noted that an MRI revealed no abnormalities.

Hand injury

At the time of her May 2004 accident, the claimant had been back at work for four or five months performing her regular job.

The claimant was seen by Dr. James Dossey at Willis Knighton’s Work Kare on June 9, 2004. She was diagnosed with de Quervain’s tenosynovitis of the right wrist. She did not relate this condition to any specific incident; however, she indicated that she had used her thumb to click her computer mouse and she believed that to be a possible cause of her malady. By July 9, 2004, the doctor found her condition to be improving. As of July 23, 2004, he found that her de Quervain appeared to have resolved, and stated that he had nothing more to offer her. She had some residual hand pain and stiffness, which he suspected was mostly due to degenerative joint problems or hand arthritis. However, he noted that she believed that she should be taken off work.

On August 16, 2004, the claimant went to see Dr. Michelle Ritter at the Center for Hand and Reconstructive Surgery. Dr. Ritter noted intrinsic tightness in the ring, middle and index fingers of the claimant’s right hand and tendinitis of the right thumb. On August 19, 2004, the claimant saw Dr. M.E. Milstead at Orthopedic Specialists of Louisiana. She gave a history of injuring her right hand and thumb when she lost her balance and her buggy pulled her arm. He found that she had de Quer-vain’s tendinitis and multiple trigger fingers; he saw the claimant several more times over the |nnext few months. On November 11, 2004, he diagnosed locked trigger thumb, which he felt was probably related to her diabetes.

When Dr. Ritter saw her on November 18, 2004, she diagnosed the claimant as having de Quervain’s syndrome of the right wrist and forearm, as well as finger flexor tendinitis of the right hand. She also noted that she was unaware that the claimant was being treated by Dr. Mil-stead and suggested that the claimant follow up with him. In early 2005, the claimant was seen by Dr. Milstead again, who opined that she might be displaying early signs of carpal tunnel syndrome.

In March 2005, the claimant was seen by Dr. David Adams of the Spine Institute of Louisiana. To him she gave a history of a jerking traction injury to both hands and wrists. EMG results showed mild bilateral carpal tunnel syndrome, but no evidence of radiculopathy or ulnar neuropathy.

In May 2005, a second medical opinion was obtained from Dr. Karl Bilderback. He found no objective evidence of a significant injury or of permanent impairment. He believed that Dr. Milstead’s treatments might have resolved any problems she had had. In his opinion, she was not a surgical candidate. Dr. Bilderback opined that she was at MMI and could return to work at her prior occupation.

In August 2005, Dr. Douglas Brown, an orthopedist, performed an independent medical examination (IME) on the claimant. She gave him a history of holding the “airborne” buggy first with her right hand, then her left hand, then her right one again. His impression was that she had osteoarthritis in both hands in the thumb MP joints with early diabetic | ^peripheral neuropathy and early carpal tunnel syndrome. He also diagnosed resolved de Quervain’s syndrome (which he described as tendinitis on back of both wrists) and resolved trigger fingers. He stated in his report that he saw no work-related injuries or percentages of disability related to injury. He opined that she was fully capable of performing the job of computer photographer. Following the results of the IME, the claimant’s indemnity payments were stopped in September 2005.

In his deposition, Dr. Brown noted the claimant’s history of diabetes and explained that diabetes is well associated with peripheral neuropathy. He thought she had early diabetic peripheral neuropa-thy. He stated that he found no objective signs of injury from the 2004 accident and he saw no reason she could not return to work. Although she had early carpal tunnel symptoms, he did not believe the carpal tunnel was related to a work injury. In his opinion, there was no more medical treatment necessary for her work-related injuries.

The claimant continued to see Dr. Mil-stead. In late 2005, he ordered a complete rheumatoid survey. In February 2006, the LSUMC Rheumatology clinic found signs of osteoarthritis with no rheumatoid arthritis. In May 2006, nerve conduction velocity (NCV) studies showed mild median and ulnar neuropathic abnormalities on the right side.

In March 2006, Dr. Milstead wrote a letter stating that her work injury did not cause her existing problems but aggravated them and made the conditions more symptomatic. In June 2006, he noted that she was “really doing fairly well.” Her hands were not bothering her too much and | ]Sthe EMG studies showed only mild levels. EMG studies in April 2007 were essentially unchanged from the one from March 2005. At her May 2007 appointment, Dr. Milstead found that the claimant still had carpal tunnel syndrome.

DISCUSSION

It is not entirely clear what sort of workers’ compensation benefits this pro se claimant is seeking. However, it is obvious that she failed to prove entitlement to any additional benefits under any standard of proof, be it by a preponderance of the evidence or by clear and convincing evidence.

As to the 2001 foot injury, the claimant’s medical records and the deposition of Dr. McWilliams demonstrate that the claimant suffered an injury which was appropriately treated and thereafter completely resolved. Dr. McWilliams, who treated the claimant for almost a year, testified that by July 2003, the claimant was at MMI and completely released her from care due to her work injury. She also opined that the condition would not return and, if it did, such a recurrence would not be related to her 2001 work injury. While the claimant had apparently had subsequent issues with her foot, there is no credible medical evidence in this record to support a finding that these are related in any way to the 2001 injury.

As pertains to the 2004 right hand injury, the medical records and the deposition of Dr. Brown show again that the claimant suffered an injury |14which was treated and then resolved. The claimant relied heavily upon the medical records of Dr. Milstead which indicated that the accident might have aggravated her diabetes-related conditions of carpal tunnel syndrome and trigger fingers. On the other hand, the employer emphasized the medical records of Dr. Bilderback, who gave a second opinion on the claimant’s condition in May 2005. At that time, he found no objective evidence of significant injury or permanent impairment; he believed that Dr. Milstead’s treatments had resolved any injury she had had. In his opinion, the claimant was at MMI and able to return to her job. Likewise, in August 2005, Dr. Brown performed an IME on the claimant and reached similar conclusions. Dr. Brown testified in his deposition that he found only preexisting conditions and no objective evidence of work-related injuries. He also saw no reason why she could not return to work.

Presented with two permissible views of the medical evidence, the WCJ chose to accept the view set forth by Dr. Brown, the doctor who performed the IME — an objective party whose opinion was corroborated by Dr. Bilderback — over that of a treating physician, Dr. Milstead. Under the facts of this case, that choice was wholly reasonable. We further find that the WCJ’s conclusion that the claimant’s testimony lacked credibility and failed to help her case is well supported by the record. We cannot say that the WCJ was manifestly erroneous in finding that the claimant was not entitled to any further indemnity or medical benefits as a result of either the 2001 door accident which injured her right foot or the 2004 cart accident in which she hurt her right hand.

^CONCLUSION

We affirm the judgment of the WCJ in favor of the defendant, Olan Mills. Costs of this appeal are assessed to the plaintiff, Judith Frye.

AFFIRMED.

      . While the copy of this claim form found in the record is difficult to read, it appears to assert that she injured her “RUE." Her answers to interrogatories state that she hurt her “right upper extremity."

      . When Dr. Sewell saw her in December 2003, the doctor noted that the claimant had chronic foot pain, thought to be neuropathy, and that she had been seen by a neurologist, Dr. Mary McWilliams. In her testimony, the claimant disagreed with Dr. Sewell’s finding that she had a foot disease; she believed that she would have it in both feet and legs if she was so afflicted. Likewise, she disputed the doctors’ findings that she had neuropathy because she believed that she would have to have it in both heels.

      . On the issue of whether the claimant injured only her right hand or both hands, we note that all of the claimant’s initial complaints to her doctors mentioned only her right hand. She made no mention of any injury to her left hand to Drs. Dossey, Ritter or Milstead. Only in March 2005, almost a year after the accident, did she first claim to Dr. Adams that she hurt both hands. At best, her trial testimony on the subject was contradictory and confusing. In one breath she admitted that she did not hurt her left hand; in the next, she claimed to have injured both hands.


source: Caselaw Access Project

author: LAMAR, Justice,

license: Public Domain

text:
    Merlean MARSHALL, Alphonzo Marshall and Eric Shepard, individually and on behalf of all Wrongful Death Beneficiaries of Lucy Shepard, Deceased v. KANSAS CITY SOUTHERN RAILWAYS COMPANY, Eric W. Robinson, The Estate of Robert Everett and C.L. Duett.
    No. 2006-CT-00519-SCT.
    Supreme Court of Mississippi.
    March 5, 2009.
    Rehearing Denied May 7, 2009.
    James W. Craig, Jackson, Herbert Lee, attorneys for appellants.
    Charles E. Ross, Charles H. Russell, III, Benjamin Noah Philley, Jackson, attorneys for appellees.
   ON WRIT OF CERTIORARI

LAMAR, Justice,

for the Court.

¶ 1. This case is before the Court on writ of certiorari. Merlean Marshall, Alphonzo Marshall, and Eric Shepard, individually and on behalf of all wrongful-death beneficiaries of Lucy Shepard (collectively “Beneficiaries”), petitioned this Court for writ of certiorari after the Court of Appeals affirmed the Scott County Circuit Court’s dismissal of their wrongful-death action as time-barred. We consider whether the Beneficiaries’ claims survive pursuant to the savings provision of Section 15-1-69 of the Mississippi Code. Finding the circuit court and the Court of Appeals erred, we reverse and remand so that the Beneficiaries may proceed in the trial court with their action against the defendants, Kansas City Southern Railway Company (“KCS”) and the train crew.

FACTS AND TRIAL COURT PROCEEDINGS

¶ 2. On July 10, 1998, a van driven by Lucy Shepard collided with a KCS train. Shepard died as a result of the accident, while Phyllis McKee, a passenger in the van, survived. On July 20, 1998, ten days after the accident, Shepard’s Beneficiaries filed a wrongful-death action (“Shepard I ”) against KCS and the train crew in the Circuit Court of Scott County. McKee filed a separate negligence action against KCS and the train crew in a Mississippi state court. See McKee v. Kan. City S. Ry., 281 F.3d 1279, 2001 WL 1692442 (5th Cir.2001).

¶ 3. On June 22, 1999, KCS removed Shepard I to the United States District Court for the Southern District of Mississippi, claiming the train crew was fraudulently joined to defeat diversity jurisdiction. The Beneficiaries responded with a motion to remand, which was denied. The district court found that the train crew was fraudulently joined to defeat diversity jurisdiction, and it dismissed the train crew from the action on March 30, 2000. The Beneficiaries then filed an interlocutory appeal to contest the order denying their motion to remand. The Fifth Circuit Court of Appeals dismissed the interlocutory appeal as premature, since the district court’s denial of the motion was not certified under 28 U.S.C. § 1292(b) or Federal Rule of Civil Procedure 54(b).

¶ 4. Meanwhile, the McKee case also was removed to federal court and assigned to the same district court judge. As with Shepard I, the district court dismissed the train crew as fraudulently joined. Thereafter, the McKee case went to trial, and a jury returned a verdict in favor of KCS.

¶ 5. Upon learning of the McKee verdict, the Beneficiaries filed a motion for entry of final judgment in favor of KCS under Rule 54 of the Federal Rules of Civil Procedure. In their motion for entry of final judgment, the Beneficiaries stated, in relevant part:

The issues in the case sub judice are identical to the issues in McKee and those issues have been decided by a jury in favor of the Kansas City Southern Railway Company. Since the Court and the Defendant have previously opined that the jury’s verdict in McKee and the final judgment entered pursuant to that verdict are binding upon the Plaintiff and the Defendant herein, there is no just reason to delay the entry of a final judgment in this action.

¶ 6. KCS did not oppose entry of final judgment but argued the motion should be granted under Rule 41(a)(2) of the Federal Rules of Civil Procedure. In its response to the motion for entry of final judgment, KCS stated:

It is apparent from Plaintiffs’ Motion, and from representations by her counsel to this Defendant and the Court, that Plaintiff wishes to terminate proceedings before this Court and appeal to the Fifth Circuit Court of Appeals this Court’s rulings denying the Plaintiffs’ Motion to Remand and Motion to Reconsider Order Denying Remand. Defendant would agree to entry of order dismissing Plaintiffs’ claims with prejudice and expressly reserving the Plaintiffs’ right to challenge this Court’s subject matter jurisdiction on appeal to the Fifth Circuit.

(Emphasis added).

¶ 7. On September 30, 2003, the district court entered an order of dismissal and entry of final judgment referring to Rule 41(a)(2) of the Federal Rules of Civil Procedure. In the order, the district court noted that “the parallel case denominated Phyllis Body McKee v. Kansas City Southern Railway, Civil Action No. 3:99-cv-393WS, which involves the same defendants as the instant case, the same facts and the same questions of law, was determined in favor of the defendants by jury verdict.” The court did not specify whether the judgment was with or without prejudice.

¶ 8. Upon Shepard I’s dismissal, the Beneficiaries again appealed the order denying their motion to remand. The Fifth Circuit concluded the dismissal was without prejudice pursuant to Rule 41(a)(2), and thus, it lacked jurisdiction to hear the appeal. See Marshall v. Kan. City S. Ry. Co., 378 F.3d 495 (5th Cir.2004).

¶ 9. After the Fifth Circuit dismissed the appeal in Shepard I, the Beneficiaries refiled their wrongful-death action in the Circuit Court of Scott County (“Shepard II”) on August 16, 2004. The Beneficiaries again named KCS and the train crew as defendants and asserted virtually the same claims as in Shepard I. Shepard II also was removed to federal court based on diversity jurisdiction and fraudulent join-der.

¶ 10. Thereafter, the Beneficiaries filed a motion to remand, which was granted by a different district judge. See Marshall v. Kan. City S. Ry. Co., 372 F.Supp.2d 916 (S.D.Miss.2005). In its opinion and order, the district court relied upon the Fifth Circuit’s holding in McKee v. Kansas City Southern Railway Company, 358 F.3d 329, 337 (5th Cir.2004). Id. at 921. The court specifically found:

[T]he Fifth Circuit has already considered and rejected similar arguments ... in the McKee suit ... Based on the holdings of the Fifth Circuit in the McKee suit, and based on this Court’s own review of the facts and claims in this case, the Court finds that Plaintiffs have asserted claims against the non-diverse Defendants for which a Mississippi state court may grant relief.

Id.

¶ 11. Upon the remand of Shepard II to state court, KCS and the train crew sought dismissal based on the statute of limitations. KCS and the train crew argued that the Beneficiaries’ claims were time-barred under the three-year statute of limitations of Mississippi Code Section 15 — 1— 49 (Rev.2003) and that the voluntary dismissal without prejudice was not a dismissal as a “matter of form” under Mississippi Code Section 15-1-69 (Rev.2003).

¶ 12. The trial court entered an order of dismissal with prejudice, finding that all claims were time-barred under Section 15-1-49 of the Mississippi Code. The Beneficiaries timely appealed.

PROCEEDINGS AT THE COURT OF APPEALS

¶ 13. The Court of Appeals found the statute of limitations had run, and absent “saving,” the Beneficiaries’ claims were time-barred, affirming the trial court judgment. Marshall v. Kan. City S. Ry. Co., 7 So.3d 265, 267, 2007 Miss.App. LEXIS 752, at * 6 (Miss.Ct.App. Nov. 6, 2007). The Court of Appeals held that the Beneficiaries could not benefit from Section 15 — 1— 69, as their dismissal was not within the purview of the Savings Statute. Id. at 268-70, 2007 Miss.App. LEXIS 752, at *9-10, *14.

DISCUSSION

¶ 14. This Court reviews a statute-of-limitations issue under a de novo standard. Champluvier v. Beck, 909 So.2d 1061, 1063 (Miss.2004).

¶ 15. The question this Court must determine is whether the statute of limitations for the Beneficiaries’ claims has run. The statute of limitations for all claims began to run July 10, 1998, when Shepard was fatally injured in the train collision. The Beneficiaries filed their complaint on July 20, 1998, well within the three-year statute of limitations. Their complaint, however, was dismissed on September 30, 2003, and final judgment entered more than five years after the cause of action accrued. This Court previously has held that a voluntary dismissal without prejudice:

[D]oes not deprive the defendant of any defense he may be entitled to make to the new suit, nor confer any new right or advantage on the complainant (plaintiff), and hence it ivill not have the effect of excepting from the period prescribed by the statute of limitations, the time during which that suit was pending.

Smith v. Copiah County, 232 Miss. 838, 100 So.2d 614, 616 (1958) (quoting W.T. Raleigh Co. v. Barnes, 143 Miss. 597, 109 So. 8, 9 (1926) (quoting Nevitt v. Bacon, 32 Miss. 212, 228 (1856) (emphasis added))). Based on this Court’s holding in Smith, the statute of limitations for the Beneficiaries’ claims has run unless saved pursuant to Section 15-1-69 of the Mississippi Code.

¶ 16. Section 15-1-69 of the Mississippi Code provides in relevant part:

If any action, duly commenced within the time allowed, the writ shall be abated, or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form ... the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determination of the original suit.

Miss.Code Ann. § 15-1-69 (Rev.2003) (emphasis added). This Court previously has ruled that Section 15-1-69 applies to those cases “[w]here the plaintiff has been defeated by some matter not affecting the merits, some defect or informality, which [the plaintiff] can remedy or avoid by a new process, the statute shall not prevent him from doing so, provided he follows it promptly, by suit within a year.” Hawkins v. Scottish Union & Nat’l Ins. Co., 110 Miss. 23, 69 So. 710, 713 (1915). Furthermore, the statute is “ ‘highly remedial’ ” and “ ‘ought to be liberally construed.’ ” Id. at 712 (quoting Tompkins v. Pacific Ins. Co., 53 W.Va. 479, 44 S.E. 439, 441 (1903)). “[G]ood faith in the institution of the action dismissed is an element in determining the right to invoke the statute.” Id.

¶ 17. The parties do not dispute that Shepard I was duly commenced within the three-year statute of limitations. Furthermore, the parties do not dispute that Shepard II (filed August 16, 2004) constituted a new action for the same cause and was filed within one year of Shepard I’s dismissal (dismissed September 30, 2003). At issue is whether the dismissal entered by the district court is a “matter of form.” See Miss.Code Ann. § 15-1-69 (Rev.2003).

¶ 18. The Beneficiaries concede that a voluntary dismissal without prejudice is generally not considered a “matter of form” within the purview of Section 15 — 1— 69 of the Mississippi Code. See Barnes, 109 So. at 9. The Beneficiaries argue, however, that the voluntary dismissal without prejudice was based on the district court’s lack of subject matter jurisdiction. The Beneficiaries essentially request that this Court consider the record as a whole and find the dismissal was based on a lack of subject matter jurisdiction. See Ryan v. Wardlaw, 382 So.2d 1078, 1080-81 (Miss.1980) (holding that a dismissal for lack of subject matter jurisdiction is a matter of form under Section 15-1-69); Frederick Smith Enter. Co. v. Lucas, 204 Miss. 43, 36 So.2d 812, 814 (1948) (same); Hawkins v. Scottish Union & Nat’l Ins. Co., 69 So. at 712 (same).

¶ 19. KCS and the train crew argue that this Court should follow the general rule of Banes and find a voluntary dismissal without prejudice is not a “matter of form.” See Barnes, 109 So. at 9. KCS and the train crew contend that Section 15-1-69 should not apply to cases where the plaintiff voluntarily dismisses a case because of dissatisfaction with the district court’s rulings. According to KCS and the train crew, the Beneficiaries received exactly what they requested, a voluntary dismissal, and the Beneficiaries should be bound by their strategic decision.

¶ 20. In Barnes, the trial court dismissed a cause of action without prejudice. Id. The plaintiff and defendant agreed that the dismissal was a nonsuit. Id. Thereafter, the plaintiff refiled suit within one year of the dismissal of the first cause of action. Id. The trial court dismissed the second action, ruling that Section 15-1-69 was inapplicable to a nonsuit. Id.

¶ 21. In determining whether a voluntary dismissal without prejudice was a dismissal as a “matter of form,” the Court noted the following:

The motion on which the first suit was dismissed does not appear in the record, and there is nothing in the order of dismissal indicating that it was a mere abatement of the action, or that the dismissal was “for any matter of form,” but in an agreement of counsel the dismissal is referred to as a nonsuit. The statute invoked, therefore, can afford the appellant no relief.... A nonsuit or a dismissal without prejudice ... must be for a matter of form, and, as herein-before stated, it does not appear that the appellant’s prior suit was dismissed for that reason.

Id.

¶ 22. Recently, this Court clarified the holding in Barms when it found that a voluntary dismissal without prejudice could be considered a dismissal as a “matter of form.” Crawford v. Morris Transp., Inc., 990 So.2d 162, 174 (Miss.2008). In Crawford, a plaintiff filed a petition to perpetuate testimony in a Mississippi circuit court. Id. at 165. The circuit court allowed the plaintiff to depose various resident and nonresident defendants, and following the depositions, the defendants removed the petition to federal court. Id. The nonresident defendants claimed the plaintiff had fraudulently joined the resident defendants to defeat diversity jurisdiction. Id. Thereafter, the federal court dismissed the resident defendants from the action. Id.

¶ 23. The plaintiff then filed a motion to dismiss without prejudice, or in the alternative, to remand, claiming the defendants had improperly removed the action. Id. The federal court found the defendants had prematurely removed the action and granted the plaintiffs motion to dismiss without prejudice. Id. at 166.

¶ 24. After the federal court dismissed the petition, the plaintiff filed a complaint in state court. Id. 167-68. The complaint was filed outside the statute of limitations and eleven months after the dismissal of the petition. Id. The defendant moved to dismiss the action as time-barred, arguing Section 15-1-69 did not apply to a voluntary dismissal without prejudice. Id. at 168. The trial court dismissed the action with prejudice. Id.

¶ 25. On appeal, this Court started its analysis of Section 15-1-69 with the premise that voluntary dismissals are not dismissals as a matter of form, but that dismissals for lack of subject matter jurisdiction are considered dismissals as a matter of form. Id. at 170. The Court proceeded to review the “content or substance” of the record to determine the purpose or reason for the plaintiffs voluntary dismissal without prejudice. Id. at 171-72.

¶ 26. The Court concluded that the plaintiffs motion to dismiss, and the district court’s grant of dismissal, were based on the fact that a complaint had never been filed. Id. at 172. Therefore, the Court construed the voluntary dismissal without prejudice as a dismissal for lack of subject matter jurisdiction. Id. at 173-74. In support of its holding, the Court noted:

Unlike Barnes, the record in this case supports that dismissal was based upon a “matter of form” not affecting the merits-namely, -a lack of jurisdiction due to the absence of a complaint. [The Plaintiff] inadvertently found himself in a procedural quagmire and made a good-faith effort to preserve his claim. We find that application of the savings statute to [the Plaintiffs] 2005 complaint is appropriate and consistent with the purposes of the statute.

Id. at 174.

¶ 27. We find Crawford analogous to the case at hand. Like the plaintiff in Crawford, the Beneficiaries sought dismissal of their cause of action based on the district court’s lack of subject matter jurisdiction. In fact, the record discloses that the Beneficiaries diligently contested the district court’s subject matter jurisdiction in Shepard I. The record shows that the Beneficiaries sought a Rule 54(b) certified judgment to challenge the district court’s subject matter jurisdiction. Prior to the dismissal, the Beneficiaries had filed a motion to remand and an interlocutory appeal of the order denying the motion to remand. In response to the motion to dismiss, KCS expressly stated that the Beneficiaries had requested the dismissal to contest the court’s subject matter jurisdiction. Thereafter, the Beneficiaries appealed the order denying their motion to remand. Even more compelling is the outcome of the McKee case, in which the Fifth Circuit Court of Appeals held that the district court lacked subject matter jurisdiction over the same claims asserted against the same defendants as the case at hand. See McKee v. Kan. City S. Ry. Co., 858 F.3d 329, 337 (5th Cir.2004).

¶ 28. Similar to the plaintiff in Crawford, the Beneficiaries “inadvertently found [themselves] in a procedural quagmire and made a good-faith effort to preserve [their] claim[s].” Crawford, 990 So.2d at 174. At no point did the Beneficiaries abandon their claims against KCS and the train crew. They continually and in good faith sought to have the merits of their case heard in a Mississippi state court. See Hawkins v. Scottish Union & Nat’l Ins. Co., 110 Miss. 23, 69 So. 710, 712 (1915) (ruling that good faith is an element to consider in determining the right to invoke the savings statute). After reviewing the record, we find the order of dismissal and entry of final judgment was a matter of form under Section 15-1-69, as the dismissal was based on the district court’s lack of subject matter jurisdiction. Pursuant to Section 15-1-69, Shepard II was timely filed, and we reverse the ruling of the Court of Appeals and the circuit court and remand this case for further proceedings.

CONCLUSION

¶ 29. Under the facts and circumstances of this case, we find the dismissal of Shepard I constitutes a dismissal as a matter of form under Section 15-1-69 of the Mississippi Code. The Beneficiaries timely refiled their second cause of action within one year of Shepard I’s dismissal. Therefore, we reverse the judgment of the Court of Appeals and the trial court judgment and remand the case to the trial court for further proceedings.

¶ 30. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, KITCHENS AND PIERCE, JJ., CONCUR. CHANDLER, J., NOT PARTICIPATING.

      . Eric Robinson, C.L. Duett, and Robert Everett were members of the train crew and named defendants. Everett was the conductor, and Robinson and Duett were engineers.

      . Robinson, Everett, and Duett were residents of Mississippi at the time the complaint was filed.

      . In its order denying the motion to remand, the district court did not specify whether the train crew was dismissed with or without prejudice. Furthermore, the record does not contain a Rule 54(b) certification as to the dismissal of the train crew. See Fed.R.Civ.P.54(b). Under Rule 54(b), "any order or other decision, however designated, that adjudicates fewer titan all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of judgment adjudicating all the claims and all the parties' rights and liabilities.” Id.

      . Rule 41(a)(2) provides "an action may be dismissed at the plaintiff's request only by court order, on terms that the court deems proper.... Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.” Fed.R.Civ.P. 41(a)(2) (emphasis added).

      . The McKee verdict was appealed to die Fifth Circuit Court of Appeals, and the Fifth Circuit vacated the verdict and remanded the case to state court. See McKee v. Kan. City S. Ry. Co., 358 F.3d 329, 337 (5th Cir.2004). The Fifth Circuit found that the district court lacked subject matter jurisdiction over the action, since the train crew was not fraudulently joined to defeat diversity jurisdiction. Id. at 331, 337.

      .Everett had passed away, so his estate was named as a party defendant in Shepard II.

      . It is undisputed that Section 15-1-49 applies to the claims asserted by the Beneficiaries.

      . This Court notes that the Beneficiaries did not request a voluntary dismissal but a final judgment under Rule 54.


author: DICKINSON, Justice, KITCHENS, Justice,

text:
    Brenda LIDDELL v. STATE of Mississippi.
    No. 2008-KA-00021-SCT.
    Supreme Court of Mississippi.
    March 5, 2009.
    Rehearing Denied May 7, 2009.

      W. Daniel Hinchcliff, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before WALLER, C.J., DICKINSON and LAMAR, JJ.
   DICKINSON, Justice,

for the Court.

¶ 1. In this felony drug-sale case, the defendant claims she received ineffective assistance of counsel at trial. Because we find her trial counsel’s actions fell within the large ambit of “reasonable professional assistance,” we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2. Mississippi Bureau of Narcotics Agent Luis Hawkins, Tunica Police Officer Chris Smith, and a confidential informant (“C.I.”) set up a drug buy at Brenda Lid-dell’s home. The officers equipped the C.I. with a camera and microphone and sent him to Liddell’s home to buy an ounce of cocaine. When he arrived, Liddell told him that she did not have any cocaine ready to sell, but to come back in a couple of hours. The C.I. returned to the post-buy location, where Hawkins and Smith instructed him to return to Liddell’s house and buy whatever she was selling.

¶ 3. The C.I. returned to Liddell’s house and asked her if she had any “footballs.” Liddell responded that she did, and the C.I. bought the twenty-three dosage units that she had. Although the C.I. discussed the transaction with Liddell, Catherine “Doll” Bogan actually handed him the pills and took the money. The C.I. then asked Liddell when she would have some cocaine ready, and she responded “in about twenty or thirty minutes.” The C.I. left Liddell’s house with the Xanax and reported back to Hawkins and Smith.

¶ 4. While at the post-buy location, the C.I. received a call from Liddell telling him to “come on.” He returned to Liddell’s house to buy the cocaine. Liddell instructed the C.I. to place the $800 on the counter, and to retrieve the cocaine from a glass bowl on the table. Liddell took the $800 from the counter and put it in the pocket of her bathrobe. The C.I. returned to the post-buy location and turned the cocaine over to Hawkins and Smith.

¶ 5. Liddell was indicted on two counts of “unlawfully, wilfully and feloniously and without authority of law selling, transferring or delivering” a controlled substance. Wilbert Johnson was appointed as her public defender. At trial, the State called Agent Hawkins as a witness. He testified that he recognized Liddell’s voice on an audio recording of the drug transaction. The jury acquitted Liddell of Count I — the sale of the Xanax — but found her guilty of Count II, the sale of cocaine. She was sentenced to ten years in prison, with five years suspended. Liddell filed a motion for judgment notwithstanding the verdict (JNOV), or in the alternative, for a new trial, which the trial judge denied. She timely filed a notice of appeal. Her public defender subsequently was allowed to withdraw as counsel, and the Office of Indigent Appeals was substituted as counsel on appeal. Liddell argues on appeal that the trial court erred when it failed to sua sponte order a mistrial due to ineffective assistance of counsel.

ANALYSIS

¶ 6. The United States Supreme Court established the now-familiar standard for determining whether a defendant received ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687, 104 S.Ct. 2052. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. 2052. The Supreme Court also stated:

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. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”

Id. at 689, 104 S.Ct. 2052. “In considering a claim of ineffective assistance of counsel, an appellate court must strongly presume that counsel’s conduct falls within a wide range of reasonable professional assistance, and the challenged act or omission might be considered sound trial strategy. In other words, defense counsel is presumed competent.” Bennett v. State, 990 So.2d 155, 158 (Miss.2008).

¶ 7. Liddell argues that her trial attorney provided ineffective assistance of counsel in three instances: (1) when he allowed Agent Hawkins to testify that it was Lid-dell’s voice on the audio recording without proper authentication or predicate, and then provided the authentication himself on cross; (2) when he elicited on cross examination the C.I.’s many previous trips to Liddell’s house and neighborhood to purchase drugs; and (3) when he stipulated to “Doll” Bogan’s conviction.

Agent Hawkins’s Testimony

¶ 8. Liddell first argues that her attorney was deficient when he allowed Agent Hawkins to identify her voice on the audio recording of the drug transaction without proper predicate or authentication. Specifically, Liddell states that “[u]ntil the State laid the predicate that Hawkins was familiar with [her] voice, it was error to admit the testimony that [she] was speaking or that it was her voice on the recordings.” Additionally, Liddell argues that her attorney’s elicitation of the authentication on his cross-examination of Agent Hawkins was deficient. Her arguments fail for two reasons.

¶ 9. First, Agent Hawkins’s testimony that it was Liddell’s voice he heard on the recording is not subject to the authentication requirement of MRE 901. The State was not trying to admit the audiotape itself into evidence. Thus, no authentication of the tape itself was required. Accordingly, the failure to object to the authentication of Agent Hawkins’s testimony was not ineffective assistance of counsel. Additionally, the failure of Lid-dell’s attorney to require the State to “lay the predicate” for Agent Hawkins’s testimony is harmless error, as we are not left to guess whether Agent Hawkins had personal knowledge of Liddell’s voice, as he testified to that effect on cross-examination.

¶ 10. Liddell’s second argument regarding her attorney’s handling of Agent Hawkins’s testimony is inconsistent with her first argument. She argues on one hand that her counsel’s failure to object to Agent Hawkins’s testimony was deficient, while on the other hand she argues that his attempt to do so on cross-examination was deficient as well. Inconsistency aside, Liddell’s argument must fail, as she did not establish the second prong of the Strickland test, that is, that she was prejudiced by her attorney’s statements on cross. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Even assuming that his elicitation of Agent Hawkins’s previous dealings with Liddell was so deficient as to meet the first prong, plenty of other evidence exists-such as the clear, unequivocal testimony of the C.I., Smith, and Hawkins — to support the jury’s verdict. In other words, her attorney’s cross-examination of Agent Hawkins did not “deprive Liddell of a fair trial,” or result in a trial that was “unreliable.”

The C.I.’s Previous Trips to Liddell’s House

¶ 11. Liddell next argues that her attorney erred during his cross-examination of the C.I. by eliciting testimony about several previous drug buys from Liddell. However, we can not rule out the possibility that the cross-examination was a “sound trial strategy,” designed to raise reasonable doubt in the minds of the jurors as to whose drugs the C.I. actually purchased. In fact, during closing argument, Liddell’s attorney stated:

He [the C.I.] testified to you truthfully somewhat, crack ring. All around. People in and out. I counted eight until I put my hand down. And somebody in a wheel chair, John.... [Y]ou don’t go thinking, well, she probably did. Maybe she did. Well, she was in the wrong place at the wrong time. Man, they got a lot of bad stuff going on. She should have known better. That’s not the law. The law is, when you bring charges against somebody, you need to prove every element of the crime beyond a reasonable doubt! You have to show that she sell [sic], transferred or delivered cocaine! You have to show that the sell [sic], transferred or delivered the other drug, the footballs, or whatever you want to call them. Not assume. They assumed it was her house. No. She was there. Everybody was there. A lot of people were there ... Well, this is in the neighborhood stuff. In the neighborhood stuff. You in the wrong place. That’s good enough. You in the wrong place. That’s good enough for proof. Well, I don’t want to hear no more.

¶ 12. We cannot rule out the possibility that Liddell’s attorney elicited testimony about previous drug buys from her house and neighborhood in an attempt to raise reasonable doubt in the minds of the jurors. Accordingly, we hold that Liddell’s attorney’s actions in this area fell within the “wide range of reasonable professional assistance.”

“Doll” Bogan’s Conviction

¶ 18. Liddell’s final argument is that her attorney erred when he stipulated to “Doll” Bogan’s conviction. This decision, too, may very well have been “sound trial strategy,” as Liddell’s attorney mentioned Bogan’s conviction during his closing argument in an effort to discount the C.I.’s testimony about Liddell, stating:

I’m saying he was paid to get the goods on Brenda Liddell. He got the goods on Catherine Bogan, and she came into this very courtroom and pleaded guilty. He got the goods on her. He didn’t get paid for it. So, when they said go back and do it again, this man testified to you with your ear, not my bad ear, that he got $500.00 for an ounce. You get $500.00 if it’s Brenda Liddell. You get zero if it’s Catherine Bogan.

Thus, the stipulation of “Doll” Bogan’s conviction was not ineffective assistance of counsel.

CONCLUSION

¶ 14. For the reasons stated herein, because the trial court did not err in its refusal to sua sponte order a mistrial due to ineffective assistance of counsel, we affirm the conviction and sentence of the Circuit Court of Tunica County in this case.

¶ 15. COUNT II: CONVICTION OF SALE OF COCAINE AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE (5) YEARS SUSPENDED, AFTER SHE HAS SERVED FIVE (5) YEARS, WITH CONDITIONS, AFFIRMED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. GRAVES, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY GRAVES, P.J.

KITCHENS, Justice,

Dissenting.

¶ 16. The record in this case chronicles a legal sideshow that must have been a bewildering wonder to behold at trial. Though comedic infirmities do not necessarily give rise to constitutional ones, the facts of this case lead me to conclude that the performance of Liddell’s attorney was as counterproductive as it was unorthodox. Because the Court concludes that Liddell received effective assistance from her attorney, I dissent.

¶ 17. I do not take issue with the majority’s determination that Wilbert Johnson, Liddell’s public defender, came to the courthouse with some sort of strategy. The record demonstrates that lawyer Johnson endeavored to portray Liddell’s trailer as a “drug house” and to paint everyone around his client with a dirty brush, hoping thereby to create reasonable doubt as to whether the drugs in question actually belonged to Liddell. See Maj. Op. at 221 and n. 4.

¶ 18. Even if this was a sound trial strategy, the means by which Johnson undertook its execution were bizarre and contrary to his client’s best interest. On cross-examination of Agent Hawkins, Johnson’s elicitation of testimony regarding Liddell’s prior offenses was so egregious that Hawkins himself seemed stunned by the line of questioning. Johnson elicited similar testimony from the police informant, who was more than willing to indulge Johnson’s inquiries about the “many people in and out” of this “drug house.” Maj. Op. at 221 and n. 4.

¶ 19. Johnson’s decision to allow “Doll” Bogan’s conviction into evidence is particularly perplexing. Had the State presented this fact to the jury on its own initiative, the trial judge would have been compelled to declare a mistrial. Robinson v. State, 465 So.2d 1065, 1068 (Miss.1985) (noting that one co-defendant’s guilty plea “is not competent evidence on the trial of the other because such plea of guilty or conviction is not evidence of the guilt[] of the party being tried.”). How Johnson reasoned that this radioactive information, constitutionally prohibited under normal circumstances, would cast a more innocent light upon his client is beyond me, and any explanation surely must wander beyond what we recognize as objectively reasonable. See Bennett v. State, 990 So.2d 155, 158 (Miss.2008).

¶ 20. Under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), an attorney’s representation must be both deficient and prejudicial in order to deprive the client of her Sixth Amendment right to counsel. I would not hesitate to hold that Johnson’s performance exceeds both requirements. It is one thing to miss the mark. It is quite another to blaze away at one’s own foot and his client’s foot as well.

¶ 21. Even if I found defense counsel’s performance constitutionally adequate under Strickland, I still could not join the majority’s opinion because it misapplies the Strickland test.

¶ 22. The right of a criminal defendant to counsel, guaranteed by the Sixth Amendment to the U.S. Constitution and Article 3, Section 26 of the Mississippi Constitution, is fulfilled only by an attorney’s effective assistance. This does not mean that the lawyer must win, but it most assuredly does mean that the lawyer must not sabotage his client’s defense, wittingly or unwittingly.

¶ 23. Inquiries into an attorney’s effectiveness must be objective in nature, not subjective as today’s majority opinion implies. The majority reaches its conclusion after determining that counsel for Liddell took steps at trial that “may very well have been” intentional. Maj. Op. at 13. But the attorney’s subjective intent is irrelevant. Rather, this Court always has concerned itself with the objective inquiry of whether “counsel’s conduct falls within a wide range of reasonable professional assistance-” Bennett v. State, 990 So.2d 155, 158 (Miss.2008).

¶ 24. This case well illustrates the danger of transforming the Strickland analysis into a subjective inquiry. The record provides little room for doubt that Johnson intended to take the steps that form the basis of Liddell’s appeal, but that intent does not render the decisions objectively reasonable or his assistance effective. Indeed, intent is irrelevant on the question of reasonableness. If our inquiry looks to subjective intent, then Strickland will be effectively eviscerated, save for when inadequately performing attorneys mistakenly trip up on their own vain strategies.

¶ 25. Accordingly, because I would reverse the defendant’s conviction and remand for a new trial aided by the guidance of a constitutionally effective defense attorney, I respectfully dissent from the majority opinion.

GRAVES, P.J., Joins this Opinion in Part.

      . Agent Hawkins testified that this phrase is slang for Xanax (chemical name, alprazolam).

      . Bogan was also indicted, tried, and convicted.

      . The following dialogue transpired between Liddell's attorney and Agent Hawkins on cross: "Q: You had heard [Liddell’s] voice before? A: I have. Q: How did you — on the telephone or in person? A: Are you asking me specifically how I — ? Q: How you heard her voice? A: Did you just open the door for me to step through? Q: Uh, I asked you a question. A: Okay. Well, the — I recognized her voice from previous sale cases.”

      . The following exchange transpired between the trial court and the attorneys: “State: Your Honor, the State has a stipulation it would like to make with defense counsel essentially as to — I haven’t got it marked. I'm sorry. Excuse me. Court: What's this, Wilbert? He said there’s a stipulation? Liddell's attorney: A stipulation as to the conviction of Catherine Bogan. Court: As to what? Lid-dell's attorney: Catherine Bogan. We are stipulating that she has been convicted in this cause number. Court: Oh, the co-defendant? State: To that, your Honor, I would like to ask for the introduction of State’s Exhibit 8, which is the sentencing judgment and proof of conviction of Catherine Bogan in cause number 2007-0144 as to Count I. Court: Any objection? Liddell's attorney: No objection. Court: S-8 is admitted without objection.’’ This was the entire exchange as to Bogan's conviction.