source: Caselaw Access Project

author: IRVING, J., MYERS, P.J.,

license: Public Domain

text:
    Jimmie ROACH, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00237-COA.
    Court of Appeals of Mississippi.
    Aug. 21, 2007.
    Rehearing Denied Aug. 26, 2008.

      Julie Ann Epps, Canton, for appellant.
    Office of the Attorney General by W. Glenn Watts, for appellee.
   IRVING, J.,

for the Court.

¶ 1. Jimmie Roach was convicted by a jury of possession of cocaine and possession of hydromorphone and was sentenced by the Hinds County Circuit Court to forty-eight years for the cocaine possession and sixty years for the hydromorphone possession, both as a habitual offender, with the sentences to run consecutively in the custody of the Mississippi Department of Corrections. Aggrieved, Roach appeals and submits the following contentions of error: (1) that the court erred in denying his motion to suppress the search warrant and its fruits, (2) that the court erred in refusing to order the State to reveal the identity of its confidential informant, (3) that the court erred in failing to grant a mistrial after a defense witness was arrested after testifying, (4) that the court erred in refusing to grant Petrice Roach’s motion for a directed verdict, (5) that the evidence is insufficient to sustain his conviction, and (6) that his sentence violates the Eighth Amendment. We find merit in Roach’s contention that the court erred in denying his motion to suppress, and we therefore reverse and remand for a new trial.

FACTS

¶ 2. On January 22, 2003, Officer Richard Spooner, an investigator with the Hinds County Sheriffs Department, was contacted by Officer Shannon Bullock, who was also an investigator with the department. Officer Bullock told Officer Spoon-er that a confidential informant (Cl) had indicated that he had seen contraband at Roach’s residence. Officer Spooner, Officer Bullock, and the Cl met, and the Cl made a controlled purchase of crack cocaine from Roach at Roach’s residence. Officer Spooner testified that field tests of the purchased substance confirmed that it was crack cocaine.

¶ 3. The next day, Officer Spooner presented an affidavit to Judge Mike Parker in order to obtain a search warrant for Roach’s residence. The controlled buy was not mentioned in the affidavit, but Officer Spooner indicated that he knew the Cl and that the Cl had provided him with “information in the past.” Officer Spoon-er’s affidavit further averred that the information provided in the past had “proven to be true and correct regarding the trafficking of illicit narcotics.” Officer Spoon-er swore in the affidavit that the Cl was known by him “to be a truthful, credible, and a reliable source of information.” There is no indication that any information other than the affidavit was given to Judge Parker. A search warrant was subsequently issued for Roach’s residence and was executed the same day, January 23.

¶ 4. Five people were detained and questioned as a result of the search, including Roach and his wife, Petrice Roach. The house was searched, and cocaine and hy-dromorphone were found inside. A large amount of the drugs was found in front of the refrigerator in the kitchen, and Officer Spooner testified that Roach was standing within arm’s reach of the drugs when the officers entered the room. The other individuals detained were all found outside the house. AH the individuals denied any knowledge of the illegal drugs.

¶ 5. At trial, John Henry Clark Jr. testified that he was also present at the house immediately prior to the execution of the search warrant. Clark testified that he ran out of the back door of the house when he saw the officers because he had hydro-morphone and cocaine on his person. Officers testified that no one was observed running from the house. Furthermore, Clark admitted during cross-examination that he suffers from severe health problems and has trouble walking. Clark also admitted that he has falsely taken responsibility for illegal drugs before. After his testimony, the court ordered that Clark be arrested.

¶ 6. Petrice and Roach were tried together. At the close of all the evidence, the court directed a verdict in favor of Petrice due to the fact that insufficient evidence had been presented to indicate her possession of the drugs. Thereafter, Roach was convicted by the jury and sentenced by the court to a total of 108 years for the two counts.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Suppression of Search Warrant

¶ 8. A search warrant is improperly issued, and reversal is required, when there is “an absence of substantial credible evidence to support” its issuance. Culp v. State, 933 So.2d 264, 271(¶ 10) (Miss.2006) (citing Magee v. State, 542 So.2d 228, 231 (Miss.1989)). The issuing court must have had a “substantial basis for concluding that probable cause existed.” Id. (citing Petti v. State, 666 So.2d 754, 757 (Miss.1995)). Probable cause exists when “a man of average caution [would believe] that a crime has been committed and that a particular individual committed it.” State v. Woods, 866 So.2d 422, 426(¶ 11) (Miss.2003) (quoting Strode v. State, 231 So.2d 779, 782 (Miss.1970)). “The task of the issuing magistrate is simply to make a practical, common-sense decision based on all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information.” Id. at 425(¶ 10) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

¶ 9. When a Cl is used to obtain a search warrant, the informant’s observations must be shown to be “truthful or reliable.” Id. at 426(¶ 14). As noted by the Woods court, corroboration of a Cl’s information “usually ... consists of a statement that the officer had successfully used the Cl in the past ... or that the suspect had a prior criminal record relating to the current investigation ... or that an undercover agent had seen the suspect engaging in behavior consistent with the current investigation.... ” Id. (citations omitted). If an affidavit does not contain any corroborating evidence of a Cl’s truthfulness and reliability, probable cause does not exist for the issuance of a search warrant. Id. at 426-27(¶ 14). In Woods, probable cause was found lacking where the issuing magistrate testified that he found probable cause solely because the Cl personally observed the contraband and because the address and vehicle descriptions given by the informant were accurate. Id. at 427 (¶¶ 15-16).

¶ 10. The underlying facts and circumstances attached to the affidavit used to obtain a warrant in this case read:

On the morning of Thursday, January 23, 2003, I, Investigator R.W. Spooner, received information from a Confidential Informant that cocaine was being stored and sold from a residence located at 217 Foxboro Drive, Jackson, Mississippi. This Confidential Informant has observed cocaine being stored and distributed from this location within the last twenty-four hours and has identified the owner of this residence to be a black male known only to the Confidential Informant as “Jimmy Roach.”
This Confidential Informant, having furnished me with information in the past that has proven to be true and correct regarding the trafficking of illicit narcotics, is known by me to be a truthful, credible, and a reliable source of information.
Based upon these underlying facts and circumstances, I, Investigator R.W. Spooner, request that a search warrant be issued for the search of the residence located at 217 Foxboro Drive in the First Judicial District of Hinds County, Jackson, Mississippi, for the search and seizure of cocaine, paraphernalia related to the trafficking of cocaine, and any monetary instruments derived from the trafficking of cocaine. This search to include any outbuildings, vehicles located on the property, and any safe or locked containers found on the premises.

¶ 11. In the interest of thoroughness, we quote liberally from the record regarding Officer Spooner’s testimony during the suppression hearing:

[PROSECUTOR]: Would you tell the Court briefly on January 22nd, 2003, did you receive a phone call from a confidential informant?
[OFFICER SPOONER]: No, I did not. I was contacted by Investigator Shannon Bullock.
[PROSECUTOR]: What did Investigator Bullock tell you?
[OFFICER SPOONER]: Investigator Bullock requested assistance from me in an operation where a confidential informant would make an undercover purchase.
* * * *
[Officer Spooner described the details of the controlled buy],
[PROSECUTOR]: All right. And had this confidential informant been used before?
[OFFICER SPOONER]: I believe so.
[PROSECUTOR]: And he had been proven reliable?
[OFFICER SPOONER]: Yes.
* * * *
[DEFENSE ATTORNEY]: Okay. Well, the fact that a sale had taken place would be a pretty important fact to relate to the Judge that is going to issue the warrant; would it not?
[OFFICER SPOONER]: That’s correct.
* * ⅜ *
[DEFENSE ATTORNEY]: Officer, is there a reason you didn’t put in the affidavit that the sale had taken place and that the confidential informant had actually made a purchase of an illegal substance at the location?
[OFFICER SPOONER]: Could you repeat the first pai-t of your question. I didn’t understand you.
[DEFENSE ATTORNEY]: Is there a reason you didn’t include this sale as a portion of your factual basis for this affidavit and search warrant?
[OFFICER SPOONER]: Yes.
[DEFENSE ATTORNEY]: Why?
[OFFICER SPOONER]: For protection of the CL
[DEFENSE ATTORNEY]: Well, you listed the fact that there was a confidential informant; did you not?
[OFFICER SPOONER]: That’s correct.
[DEFENSE ATTORNEY]: Okay. Would you explain yourself for me, please?
[OFFICER SPOONER]: Well, the Cl observed cocaine being distributed and stored. I didn’t want to put in there that the Cl had actually made a purchase because if that was the only purchase that was made from Jimmie Roach that day he would automatically know who the Cl was.
* * * *
[DEFENSE ATTORNEY]: Okay. Now have you personally worked with this confidential informant previously?
[OFFICER SPOONER]: No.
[DEFENSE ATTORNEY]: You had never worked with this confidential informant?
[OFFICER SPOONER]: No.
[DEFENSE ATTORNEY]: The search warrant ... refers to an underlying facts and circumstances sheet.... Do you recall whether or not an underlying facts and circumstances sheet was prepared to be attached to that affidavit?
[OFFICER SPOONER]: Yes.
[DEFENSE ATTORNEY]: It was?
[OFFICER SPOONER]: Yes, sir.
* * * *
[DEFENSE ATTORNEY]: And this underlying facts and circumstances sheet, which is Exhibit 2, was signed by you; is it not?
[OFFICER SPOONER]: That’s correct.
[DEFENSE ATTORNEY]: And the affidavit was signed by you; correct?
[OFFICER SPOONER]: That’s correct.
[DEFENSE ATTORNEY]: Wasn’t signed by Officer Bullock, neither one of them were; were they?
[OFFICER SPOONER]: No.
[DEFENSE ATTORNEY]: Okay. So when you make affidavit and you represent to Judge Parker, who issued the search warrant, that this confidential informant has furnished you with information in the past that has proven to be true and correct. That’s not true; is it?
[OFFICER SPOONER]: Yes, it is.
[DEFENSE ATTORNEY]: Well, did you not just testify that you had never worked with this confidential informant before?
[OFFICER SPOONER]: Yes, I did.
[DEFENSE ATTORNEY]: Yet, you are telling me that this statement in the underlying facts and circumstances sheet that he or she has furnished you with information in the past that has proven to be true and correct, that’s a correct statement?
[OFFICER SPOONER]: Yes. He has provided me with information. I haven’t officially worked with him.
[DEFENSE ATTORNEY]: Well, now you are saying you haven’t officially worked with him. When have you worked with this confidential informant?
[OFFICER SPOONER]: I have spoken with this confidential informant on several occasions. He has worked with other officers in my unit.
[DEFENSE ATTORNEY]: Is this pri- or to January 22nd of 2003?
[OFFICER SPOONER]: Yes, it is.
[DEFENSE ATTORNEY]: All right. And how many cases? And if you could tell us, which cases?
[OFFICER SPOONER]: I don’t know right offhand because they weren’t mine.
[DEFENSE ATTORNEY]: Uh-huh. And what other officers has this confidential informant worked with?
[OFFICER SPOONER]: Investigator Bullock.
[DEFENSE ATTORNEY]: On the same cases you worked with?
[OFFICER SPOONER]: Would you rephrase that question.
[DEFENSE ATTORNEY]: Let me rephrase my question. Prior to January 22 of 2003, it is now your testimony that you worked with this confidential informant prior to January 22nd, 2003. Is that correct?
[OFFICER SPOONER]: If you mean work with, he provided me with information. Yes.
[DEFENSE ATTORNEY]: Okay. I am asking you because your previous testimony was that you had never worked on any cases with him before. I am now asking you to tell me what other officers worked with you and this confidential informant prior to January 22, 2003?
[OFFICER SPOONER]: No other officers.
[DEFENSE ATTORNEY]: Okay. So no other officers can substantiate what you have just told me?
[OFFICER SPOONER]: That he has provided me with information?
[DEFENSE ATTORNEY]: That’s correct.
[OFFICER SPOONER]: No.
[DEFENSE ATTORNEY]: All right. Can you tell me what cases this confidential informant provided you information on prior to January 22 of 2003?
[OFFICER SPOONER]: No, I cannot.
[DEFENSE ATTORNEY]: Can you provide me any witnesses as we sit here today who can corroborate what you have just said, that you worked with this confidential informant prior to January 22 of 2003?
[OFFICER SPOONER]: No.
[DEFENSE ATTORNEY]: Other than the confidential informant?
[OFFICER SPOONER]: That’s correct.
[DEFENSE ATTORNEY]: I see. How many times have you paid this confidential informant money prior to January 22 or 23, 2003?
[OFFICER SPOONER]: I have never paid him money.
[DEFENSE ATTORNEY]: Well, I am a little bit concerned because in your direct testimony you identified this person as a confidential informant of Officer Bullock. In my initial cross-examination you stated under oath that you had never worked on any cases with this confidential informant before, and now you are representing to the Court that you have but you can produce nobody and can cite no cases that you have.... Is that my understanding of your testimony today?
[OFFICER SPOONER]: Yes, but I think there is a misunderstanding between him providing me with information and actually working a case with the informant.
* * * *
[DEFENSE ATTORNEY]: I want you to explain the difference if you didn’t understand the questions put to you by the prosecutor and by me in my cross-examination.
[OFFICER SPOONER]: Like if I talk with the informant, he provides me with information: Subjects, locations, substances, any information he has on anything but there was never an official arrest or case made but I know that the information to be [sic] true and correct.
[DEFENSE ATTORNEY]: Well, if the arrest was never made and it was never followed up how would you know it was true and correct?
[OFFICER SPOONER]: From prior cases, other arrests from other officers.
* * * *
[PROSECUTOR]: Now you said earlier that other-that the confidential informant had been used before and had provided reliable information; is that correct?
[OFFICER SPOONER]: That’s correct.
[PROSECUTOR]: Okay. Did he provide reliable information to other officers that you were aware of?
[OFFICER SPOONER]: Yes.
[PROSECUTOR]: Okay. Was Shannon Bullock one of those officers?
[OFFICER SPOONER]: Yes, he was.
[PROSECUTOR]: Okay. And, in fact, hadn’t he told you he had purchased cocaine from 217 Foxboro Drive?
[OFFICER SPOONER]: Yes.
[PROSECUTOR]: And he, in fact, was searched in your presence?
[OFFICER SPOONER]: Yes.
[PROSECUTOR]: And then he — there were no illegal substances found?
[OFFICER SPOONER]: No.
[PROSECUTOR]: Is that correct?
[OFFICER SPOONER]: That’s correct.
[PROSECUTOR]: And then he went over there he, in fact, purchased cocaine at 217 Foxboro Drive?
[OFFICER SPOONER]: Yes.
[PROSECUTOR]: So did you consider that to be reliable information?
[OFFICER SPOONER]: Yes, I do.

¶ 12. Officer Bullock also testified at the suppression hearing:

[DEFENSE ATTORNEY]: The confidential informant that was used was somebody that you had worked with before. Is that right?
[OFFICER BULLOCK]: Yes, sir.
[DEFENSE ATTORNEY]: And did that confidential informant-just tell me how he happened to bring to you information about drugs being seen at the residence of Jimmie Bullock [sic]?
[OFFICER BULLOCK]: He had called me on the phone.
[DEFENSE ATTORNEY]: Okay. And what did he say?
[OFFICER BULLOCK]: He told me he knew where cocaine was being sold and stored from.
[DEFENSE ATTORNEY]: And that’s a person you had used in the past?
[OFFICER BULLOCK]: Yes, sir.
[DEFENSE ATTORNEY]: All right. Going back to this confidential informant, after the confidential informant contacted you, that’s when you contacted Officer Spooner; isn’t that correct?
[OFFICER BULLOCK]: Right.
[DEFENSE ATTORNEY]: And Officer Spooner had never worked with this confidential informant before; had he?
[OFFICER BULLOCK]: Not to my knowledge.
[DEFENSE ATTORNEY]: I mean, this was your guy on the street; wasn’t he?
[OFFICER BULLOCK]: Right.
[DEFENSE ATTORNEY]: And did it appear to you that Officer Spooner and this confidential informant knew one another?
[OFFICER BULLOCK]: No, it did not.
* * * *
[PROSECUTOR]: Okay. Can you tell us how many times he has provided you reliable information before January 23rd, 2003?
[OFFICER BULLOCK]: Once before.
[PROSECUTOR]: Once before?
[OFFICER BULLOCK]: Right.

¶ 13. When false information is given in an affidavit for a search warrant, we set the false material from the affidavit aside and determine “whether the affidavit’s remaining content, together with sworn oral testimony presented to the issuing magistrate, is sufficient to establish probable cause.” Petti, 666 So.2d at 758. Since there was no oral testimony presented to the issuing magistrate in this case, probable cause will have to be found solely from the contents of the affidavit. To that end, we review the affidavit for false material.

¶ 14. We note at the outset that Officer Spooner’s testimony made it clear that the date given in the affidavit was incorrect, as the officers were contacted by the Cl on the morning of January 22, 2003. The first sentence of the affidavit also contains a discrepancy inasmuch as Officer Bullock received the information from the Cl, rather than Officer Spooner. However, since Officer Spooner later spoke to the Cl himself, this discrepancy is immaterial.

¶ 15. It is the second paragraph of Officer Spooner’s affidavit that is particularly troubling. In that paragraph, Officer Spooner states that the Cl in question had furnished him “with information in the past that has proven to be true and correct regarding the trafficking of illicit narcotics.... ” However, Officer Spooner’s testimony during the suppression hearing indicates that the Cl had never provided him with information prior to January 22, 2003. Although Officer Spooner waffled and attempted to rectify the situation by asserting that the Cl had provided him with credible information in the past that had not actually led to arrests, Officer Bullock’s testimony clarified that it was apparent when Officer Spooner and the Cl met on January 22, 2003, that the two had never met before. Officer Bullock also testified that, to his knowledge, Officer Spooner had never worked with the Cl prior to January 22, 2003.

¶ 16. There are two interpretations of the statement in the affidavit that the Cl had furnished Officer Spooner with information in the past: (1) that Officer Spoon-er had a working relationship with the Cl, who had given him reliable information that had been verified in the course of past cases; or (2) that Officer Spooner was referring only to the January 22 controlled buy when he stated that the Cl had given him reliable information in the past. Of these two interpretations, we find that the issuing judge was far more likely to assume the first from Officer Spooner’s averment in the affidavit. This Court is also of the opinion that that is most likely what Officer Spooner intended for the judge to believe. Similar language has been used in numerous probable cause affidavits that have formed the basis for search warrants in this state. However, we have been unable to find a case where similar language was used in reference to only one experience with the Cl in question. See Evans v. City of Aberdeen, 926 So.2d 181, 187(¶ 20) (Miss.2006) (city’s Cl had provided “true and valuable information in the past which led to the arrest of drug dealers ”) (emphasis added); Harper v. State, 485 So.2d 1064, 1065 (Miss.1986) (search warrant issued based on Cl “who had given information in the past that had led to confiscation of drugs in the past and misdemeanor convictions ”) (emphasis added); Garvis v. State, 483 So.2d 312, 315 (Miss. 1986) (affidavit sufficient where it alleged that the Cl had “given information in the past that has led to the arrest and conviction of drug violators in Laurel and Jones County,” despite the fact the affidavit did not give specific details of the past reliable information. There was no indication that the information was false); McKinney v. State, 724 So.2d 928, 933(¶ 17) (Miss.Ct. App.1998) (probable cause found where affidavit stated that Cl had “given ... information in the past [that] was proven true and correct and led to previous arrests ”) (emphasis added).

¶ 17. Even if Officer Spooner had intended to reference the January 22 buy when he stated that he had a past relationship with the Cl, in the absence of any mention of the buy in the affidavit for the search warrant, it was impossible for Judge Parker to take the buy into the consideration of the totality of the circumstances in issuing the warrant. The dissent contends that this single buy was sufficient to make Officer Spooner’s affidavit truthful. However, as we have discussed, this buy was never mentioned to the issuing magistrate, either in Officer Spooner’s affidavit or in person when Officer Spooner requested the search warrant.

¶ 18. We find the case of Pipkins v. State, 592 So.2d 947 (Miss.1991) to be somewhat analogous to the situation currently before us. In Pipkins, the officer who made out the affidavit for the search warrant testified that, although he had put in the affidavit that he had worked with his Cl “in the past,” in reality, he had only worked with the Cl on the day he received the incriminating evidence from him. Id. at 950. The officer did, however, claim that he had corroborated the Cl’s claims through surveillance. Id. The court noted that the officer’s implication that he had worked with the Cl previously and knew him to be reliable, when in fact the officer had possibly only met the Cl once, prevented the issuing magistrate from fully utilizing the totality of the circumstances in determining whether probable cause existed for the issuance of the search warrant:

Deputy Cooley’s testimony on cross-examination, combined with his evasive suppression hearing testimony, leads to the conclusion that Deputy Ron Cooley was less than candid with the issuing judge when he applied for the search warrant in question. We learn at trial that the statement of “Underlying Facts and Circumstances” while being correct as to required form is lacking of a foundation to support the form. The statement consists of “pattern words” without the whole-cloth of detail and certainty. The trial testimony serves only to undermine the credibility of the completed application. We learn that Deputy Cooley became acquainted with the confidential informant possibly on the day of the search and seizure. We are further informed that Deputy Cooley had not relied upon the informant in the past and that this confidential person may not have actually seen a “quantity of marijuana” at the Pipkins’ home. We note that at the suppression hearing, Cooley was evasive when asked to relate the informant’s basis of knowledge.
* * * *
These representations leave the court with open ended affidavits and prevented the issuing magistrate from properly using the “totality of the circumstances” test when analyzing the warrant application.
* * *
As mandated by Franks v. Delaware [438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)] and Bevill v. State, [556 So.2d 699 (Miss.1990)] we have reviewed the “Affidavit for Search Warrant” and the statement of “Underlying Facts and Circumstances” in light of Cooley’s testimony at both the suppression hearing and at trial and find that probable cause did not exist, under the “totality of the circumstances,” for the search of Pip-kins’ home. Close scrutiny of Cooley’s testimony leaves us with “reliable information” that had never been relied upon before.

Id. at 950-51.

¶ 19. Admittedly, the facts in Pipkins are somewhat different from the facts before us, as the officer in Pipkins conducted a three-month surveillance that yielded no “suggestion of criminal activity” before obtaining a search warrant. Id. at 951. However, Officer Spooner’s testimony makes it clear that the informant whose information was relied upon had never been used by him prior to January 22, 2003. Furthermore, Officer Bullock testified that the informant had only been used by him once prior to the controlled buy in this case. As in Pipkins, Officer Spoon-er’s testimony had the effect of preventing the issuing magistrate from utilizing the totality of the circumstances in issuing the search warrant here. The dissent contends that Pipkins is distinguishable from this case because the informant in this case “corroborated his information, by performing a controlled buy under the supervision of the officers with Roach.... ” While this fact does set Pipkins apart from our case to some degree, the essential holding of Pipkins — that an officer’s untruthful statements can cause the magistrate issuing a search warrant to be unable to determine probable cause-is still highly relevant to the case before us.

¶ 20. We note that there might be a substantial basis for probable cause had Officer Spooner related everything to Judge Parker, namely: (1) that another officer had worked with the informant once prior to the date in question, and (2) that the informant’s information had been corroborated by a controlled buy carried out by that same Cl. However, none of this information was related. Under these circumstances, we find that probable cause did not exist for the issuance of the search warrant, and the fruits of the search warrant should be suppressed. Therefore, we reverse and remand for further proceedings consistent with this opinion.

¶ 21. We clarify that our holding is not, as the dissent suggests, that a confidential informant “can never give reliable information, so as to constitute probable cause, while serving for the first time as a confidential informant.” Rather, we hold that, under the circumstances of this case, particularly where the only corroboration of the CPs statement was not presented to the magistrate issuing the search warrant, probable cause did not exist for the issuance of the search warrant. As we have already stated, the informant’s evidence would have been sufficient to sustain probable cause had the controlled buy been discussed with the magistrate issuing the search warrant. We also note that the buy could have been disclosed to the magistrate without putting the information in the affidavit; however, Officer Spooner’s testimony did not indicate that the buy was ever mentioned to the magistrate in any way. Therefore, contrary to the argument made by the dissent, the omission was not made to protect the identity of the confidential informant.

2. Failure to Reveal the Identity of the Cl

¶ 22. As this issue could have an impact on the proceedings on remand, we address it here. The identity of a Cl must be revealed, upon request by the defense, if the Cl participates in the crime or if the Cl is an eyewitness to the offense. Bradley v. State, 562 So.2d 1276, 1279 (Miss. 1990). There is no evidence here to indicate that the Cl in question was in any way a participant in Roach’s crime.

¶ 23. According to Rule 9.04 B2 of the Uniform Rules of Circuit and County Court, an informant’s identity must be disclosed if the Cl “was or depicts him-selfiherself as an eyewitness to the event or events constituting the charges against the defendant.” Here, the event constituting the charge against Roach was the officer’s discovery of the cocaine and hydro-morphone pursuant to the search warrant. Therefore, the Cl was not an eyewitness to the crime, and disclosure of his identity is not required.

3. Airest of Defense Witness

¶24. This issue is moot due to our remand of this case to the trial court.

k. Denial of Petrice Roach’s Motion for a Directed Verdict

¶ 25. As stated earlier, Roach and Pe-trice, husband and wife, were tried together. At the conclusion of the State’s case, Petrice moved for a directed verdict, and the motion was denied. However, it was granted at the conclusion of the entire case. Roach argues that it was error for the trial court not to have granted the motion at the conclusion of the State’s case, since no new evidence was offered by Petrice. Roach reasons that the delay in granting the motion prejudiced him since it precluded his wife from testifying in his behalf because she also was on trial. Since we are reversing and remanding Roach’s conviction, we see no need to address this issue, because on remand, Pe-trice will be free to testify if she chooses to do so without criminal charges hovering over her.

5. Sufficiency of the Evidence

¶26. We decline to address this issue, as this Court cannot say whether whatever evidence is produced on remand will be sufficient to sustain a conviction.

6. Constitutionality of Sentence

¶ 27. Although a non-issue in the sense that we are remanding this case, we note that the sentence in this case was constitutional. Roach was sentenced to 108 years total as a habitual offender under Mississippi Code Annotated section 41-29-147 (Rev.2005). Roach contends that the court abused its discretion in sentencing him to the maximum possible term of incarceration for his convictions. However, the Mississippi Supreme Court has made clear that a sentence within the statutory limits, like the one imposed on Roach, is acceptable and will be upheld on appeal. Rogers v. State, 928 So.2d 831, 835(¶12) (Miss. 2006). Further, Mississippi Code Annotated section 99-19-81 (Rev.2000) provides that a person sentenced as a habitual offender under the stated code section “shall be sentenced to the maximum term of imprisonment prescribed for such felon, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.”

¶ 28. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

KING, C.J., LEE, P.J., CHANDLER, BARNES AND ISHEE, JJ., CONCUR. MYERS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRIFFIS, ROBERTS AND CARLTON, JJ.

MYERS, P.J.,

Dissenting.

¶29. I respectfully disagree with the majority opinion and would affirm Roach’s conviction of possession of controlled substances. The majority reverses Roach’s conviction, holding, essentially, that a confidential informant can never give reliable information, so as to constitute probable cause, while serving for the first time as a confidential informant. I find this holding problematic and, therefore, dissent.

¶ 30. The facts in this case are simple. Investigating Officers Spooner and Bullock received information from a confidential information that Roach was storing illegal narcotics at his home. However, before the officers submitted an affidavit for a search warrant for Roach’s home, they needed to establish probable cause. On the same day as receiving the confidential informant’s telephone call, the officers arranged a controlled buy between the informant and Roach to substantiate the informant’s claims. After the controlled buy was completed, the officers had reliable information for the execution of a warrant for Roach’s residence. Officer Spooner, on the same day, then presented an affidavit for a warrant stating in pertinent part, “this confidential informant, having furnished me with information in the past that has proven to be true and correct regarding the trafficking of illicit narcotics, is known by me to be a truthful, credible, and a reliable source of information.” A search warrant was issued, Roach was arrested, then convicted by a jury, and he now appeals.

¶ 31. The majority finds that Officer Spooner’s averment made in his affidavit for the procurement of the search warrant to be insufficient to establish probable cause. The language of the affidavit that the majority finds troubling is the portion that the officer averred to have been given information from the informant “in the past” regarding drug trafficking. However, I find that the underlying facts in this case have shown that Officer Spooner did, in fact, receive and use information provided to him by the confidential informant to arrange a controlled buy of narcotics between the confidential information and Roach before submitting an affidavit for a warrant. This fact was testified to by Officers Spooner and Bullock and remains uncontested otherwise. Therefore, the statement that Officer Spooner made in his affidavit concerning his receiving information from this confidential informant “in the past” is correct and supportive of a finding of probable cause. It matters none that the “past” occurred within the same day. To hold otherwise, I think, would be punishing speedy police work in apprehending one involved in illicit drug crimes.

¶ 32. The majority relies heavily on the case of Pipkins v. State, 592 So.2d 947 (Miss.1991), in holding that Officer Spoon-er improperly procured a search warrant because the information supportive of probable cause came to light on the same day as the affidavit was submitted for the issuance of a warrant. While the facts of Pipkins and the case at hand have one aspect in common (i.e. that the affidavit drafting officer only knew the confidential informant for a short period of time before utilizing his information to obtain a search warrant), the case of Pipkins is easily distinguishable from the case at hand. In Pipkins, the police received a telephone call from a confidential informant who reported that a quantity of marijuana was going to be delivered in a blue truck to a certain address. The informant further provided to the officer that he personally viewed a quantity of marijuana at that address within the past twenty-four hours. However, other than the informant’s statements to the officers over the telephone, no other corroboration of these facts was made by the officer prior to obtaining a search warrant for the address.

¶ 33. Based on this information provided by the informant over the telephone regarding Pipkins’ illegal activity, an officer averred that “in the past [the informant] has provided information to other law enforcement agencies that has proved reliable and has led to the arrest of numerous drug offenders” in order to obtain a search warrant for the particular address. At the suppression hearing, the officer revealed that, in fact, he had never used the Cl’s information in the past to lead to an arrest and the officer was aware that the Cl may not have actually seen a quantity of marijuana at Pipkins’ home. The supreme court reversed Pipkins’ conviction “because the ‘reliable information’ contained in the warrant had never been relied upon before, [and] thus probable cause did not exist.” White v. State, 742 So.2d 1126, 1131(¶ 9) (Miss.1999) (discussing the holding of Pipkins, 592 So.2d at 951-52).

¶34. At the suppression hearing, the officer in Pipkins testified that he had known the informant against Pipkins “for only a few days or possibly had met him only on the day of the warrant’s issuance when he was given the information.” Pip-kins, 592 So.2d at 948. However, there is one significant difference in the case sub judice and the case of Pipkins: the confidential informant in our case corroborated his information, by performing a controlled buy under the supervision of the officers from Roach, before Officer Spooner applied for a search warrant for Roach’s house. This controlled buy in which the confidential informant participated gave the officers enough indicia of reliability to support then- affidavit for issuance of the search warrant. The factual difference in this case from the case of Pipkins sets apart the entire analysis applicable in determining whether the search warrant was executed within the bounds of the law.

¶ 35. Furthermore, there is no requirement that an officer specifically detail his past relationship with a confidential informant in his affidavit for a search warrant, especially when special detail would reveal the identity of the informant. Arnett v. State, 532 So.2d 1003, 1006-08 (Miss.1988); Read v. State, 430 So.2d 832, 835-36 (Miss. 1983) (quoting Young v. State, 245 So.2d 26, 27 (Miss.1971)). Officer Spooner testified that the details of the controlled buy were not published in his affidavit in order to protect the identity of the confidential informant. To withhold specific details concerning a confidential informant in an affidavit for a warrant does not amount to falsifying or providing misleading information to an warrant issuing judge. To the contrary, our supreme court has recognized the importance of protecting the identity of a confidential informant in the name of protecting the case in which law enforcement is working in stating that when “[t]he true names of confidential informants are not revealed, [this is] in order to protect then’ safety and to make it possible for them to continue working undercover until such time as they must be revealed to complete prosecution of the cases involving them.” Jones v. State, 912 So.2d 973, 974 n. 1 (Miss.2005).

¶ 36. The Fourth Amendment to the United States Constitution and Article 3, section 23 of the Mississippi Constitution protect against only unreasonable searches and seizures. When a warrant is issued for a search and seizure, the warrant must be based on “judicial determination that probable cause exists based upon the affidavit or other evidence before the court.” Miss. Unif. R.P.J. Ct. 3.03. When we review whether a search warrant was issued based on probable cause, we are to determine whether the issuing judge:

[made] a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supply hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding” that probable cause existed....

State v. Woods, 866 So.2d 422, 426(¶ 12) (Miss.2003) (quoting III. v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

¶ 37. The requirement that the informant have a “basis of knowledge” supportive of finding probable cause can be established by a confidential informant’s personal, first-hand observation. Woods, 866 So.2d at 426(¶ 13). Here, this is exactly the case. The confidential informant relayed to Officers Spooner and Bullock that he had personal, first-hand knowledge that Roach possessed controlled substances at his residence.' Therefore, this prong of establishing probable cause is met.

¶ 38. The remaining requirement that must be established for a finding of probable cause is the veracity of the informant. Veracity is proven by showing that the informant is truthful or reliable. Our supreme court has found that “[u]sually this corroborating evidence consists of a statement that the officer had successfully used the [confidential informant] in the past ... or that an undercover agent had seen the suspect engaging in behavior consistent with the current investigation.” Woods, 866 So.2d at 426(¶ 14) (citations omitted). Our courts have never held that it is necessary that such corroborating information provided by the informant actually led to an arrest. See contra Maj. Op. ¶¶ 15-16. Here, Officer Spooner provided in his affidavit that the confidential informant had “furnished [him] with information in the past that has proven to be true and correct regarding the trafficking of illicit narcotics.” The corroborating evidence to which Officer Spooner referred in his affidavit was the controlled buy that he witnessed the confidential informant perform. Thus, the affidavit averring the confidential informant’s veracity was truthful and sufficient so as to constitute a showing of probable cause.

¶ 39. The majority holds that probable cause did not exist for the issuance of the warrant because the details of the controlled buy were not divulged either in the affidavit or by Officer Spooner’s oral disclosure. In coming to this conclusion, the majority states that Officer Spooner did not relate to the issuing judge information regarding the controlled buy. See Maj. Op. ¶¶ 13,17, 20, 21. I can find no support for this assertion in the record. During the suppression hearing, Officer Spooner testified that he presented the underlying facts and search warrant to the issuing judge. However, Officer Spooner was never questioned during the suppression hearing regarding whether he had a conversation with the judge during the issuance of the warrant or what information was disclosed. Without a record of the proceeding in which the judge signed the search warrant, we, as a reviewing court, cannot know whether or not the controlled buy was discussed with the judge before the search warrant was issued.

¶ 40. What is more, even if Officer Spooner’s affidavit statement did not detail specific facts of his past relationship with the confidential informant, who provided details of Roach’s possession of controlled substances, this omission would not necessarily constitute an insufficient basis for a finding of probable cause. Our law does not require such a detailed averment in an affidavit made to procure a search warrant. See Miss. Unif. R.P.J. Ct. 3.03. “Nor does it indicate that each factual allegation which the affiant puts forth must be independently documented, or that each and every fact which contributed to his conclusions be spelled out in the complaint.” Gates, 462 U.S. at 232, 103 S.Ct. 2317 (citation omitted). “It simply requires that enough information be presented to the Commissioner to enable him to make the judgment that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal process.” Id.

¶41. I am of the opinion that Officer Spooner averred a truthful statement supporting the issuance of the search warrant. The affidavit used to obtain a warrant for the search of Roach’s residence was sufficiently pled so as to allow a judge to consider the totality of the circumstances in order to issue a warrant. The trial judge did not commit error in denying Roach’s motion to suppress the evidence presented against him at trial. It is for these reasons that I must dissent.

GRIFFIS, ROBERTS AND CARLTON, JJ., JOIN THIS OPINION.

      . The affidavit used to obtain a warrant for Roach’s residence incorrectly listed the date as January 23, 2003; however, this date discrepancy can be merely classified as a typographical error and immaterial to the case at hand. The date does not aver that the officers received the confidential informant’s telephone call any earlier than the day that the controlled buy occurred and the day that the warrant was issued.


author: KING, C.J.,

text:
    Dimple G. WHITAKER and Clyde Whitaker, Appellants v. T & M FOODS, LTD. and Robert Y. Kent, Appellees.
    No. 2006-CA-01365-COA.
    Court of Appeals of Mississippi.
    Sept. 25, 2007.
    Rehearing Denied Jan. 29, 2008.

      Jim Waide, D. Kirk Tharp, Tupelo, Richard Shane McLaughlin, W. Brent McBride, attorneys for appellant.
    James H. Heidelberg, Jessica Marie Du-pont, Pascagoula, attorneys for appellee.
    Before KING, C.J., IRVING and CARLTON, JJ.
   KING, C.J.,

for the Court.

¶ 1. Dimple and Clyde Whitaker appeal the dismissal of their case with prejudice. Relying upon the Mississippi Supreme Court’s recent decision in J & J Timber Co. v. Brooms, 932 So.2d 1 (Miss.2006), the trial court granted T & M Foods’s Rule 60(b) motion for relief from the trial court’s previous order denying summary judgment to both T & M Foods and Kent. The trial court dismissed the case and denied the Whitakers’ post-trial motions. Finding no error, this Court affirms.

FACTS

¶ 2. In December 1999, Kent was working as a delivery driver for T & M Foods, which operated a Steak-Out franchise, when he “rear-ended” the Whitakers’ car. As a result of the accident, Mrs. Whitaker sustained some injuries and incurred medical expenses in the amount of $881.06. Mrs. Whitaker was concerned about her outstanding medical bills and their impact on her credit rating. On January 20, 2000, Kent’s insurer, Progressive, obtained a release from the Whitakers. In exchange for the release, the Whitakers received a payment for $1381.06 for reimbursement of Mrs. Whitaker’s medical expenses. When the Whitakers questioned the additional $500 payment, Progressive advised the Whitakers that it was reimbursement for any inconvenience caused by the automobile accident.

¶ 3. Several months after the accident and after the Whitakers signed the release with Progressive, Mrs. Whitaker began experiencing pain. She was diagnosed with temporalmandibular joint pain syndrome. Her physician cited the automobile accident as the cause of the problem. At the time of trial, Mrs. Whitaker had accumulated approximately $114,000 in medical expenses.

¶ 4. In February 2001, the Whitakers filed suit against Progressive, Kent, and T & M Foods. The Whitakers sought to set aside the release with Progressive on the grounds of mutual mistake as to the extent of Mrs. Whitaker’s injuries and to obtain money damages from Kent and T & M Foods. In their answer, Kent and T & M Foods contended that the January 2000 release operated to release them both from liability.

¶ 5. On September 17, 2002, Progressive entered into a second release with the Whitakers. The second release declared that the first release was null and void. In exchange for an additional payment of $8608.05, which exhausted the $10,000 policy limits on Kent’s insurance policy with Progressive, the Whitakers agreed to release Progressive. They also agreed “that in making any pursuit of their claim with respect to the automobile accident, they will not seek execution against personal assets of Robert Y. Kent and, instead, will seek to satisfy any judgment only from assets of T & M Foods, and from any liability insurance carrier of T & M Foods, Ltd. applicable to the accident involving Robert Y. Kent and Dimple Whitaker, if any.” Thereafter, the trial court signed an order dismissing Progressive with prejudice.

¶ 6. Kent and T & M Foods filed a motion for summary judgment in July 2004, arguing that the January 2000 release was a valid contract extinguishing all claims against both Kent and T & M Foods and that the contract constituted an accord and satisfaction of the Whitakers’ claims. Alternatively, if the trial court determined that the second release was the operative release, then Kent was entitled to summary judgment. Kent contended that by virtue of the agreement not to execute on his personal assets, the Whit-akers could not recover damages and, therefore, Kent was not a necessary party to the litigation. The trial court denied the motion for summary judgment in part but granted the motion with respect to the agreement not to execute on Kent’s personal assets. The trial court also granted a motion for default judgment against Kent because he failed to appear for his deposition.

¶ 7. On the day of trial, May 8, 2006, T & M Foods filed a Rule 60(b) motion for relief, asking the trial court to reconsider its decision to deny summary judgment on the grounds that a new Mississippi Supreme case, J & J Timber Co. v. Broome, 932 So.2d 1 (Miss.2006), had changed the law on vicarious liability and the release of the tortfeasor so that the release of the tortfeasor acted to release the employer as well. T & M Foods argued that, under J & J Timber, T & M Foods could not, as a matter of law, be liable for any of Kent’s actions because the Whitakers had released Kent. The trial judge granted T & M Foods’ Rule 60(b) motion, relieving T & M Foods of the summary judgment order previously entered and stating that T & M Foods and Kent were “entitled to Judgment as a matter of law.”

¶ 8. Thereafter, the Whitakers filed a motion to alter or amend the judgment, a motion to disqualify defense counsel from representing both Kent and T & M Foods, a motion for an evidentiary hearing on the issue of the potential conflict in representing both Kent and T & M Foods, and a motion to file a second amended complaint, in which the Whitakers alleged that the second release should be set aside because of a mutual mistake in understanding the law in light of the recent J & J Timber decision. The trial court denied those motions and entered a final judgment. The Whitakers timely appealed.

¶9. The Whitakers raise the following issues on appeal, which are taken verbatim from their appellate brief:

(1) Whether the Trial Court erred in dismissing Defendant Kent, since the Court had already entered a default judgment against Kent, since Kent never requested dismissal and since there was no basis for the dismissal of Plaintiffs’ claims against Kent.
(2) Whether the Trial Court erroneously applied the Supreme Court’s holding in J & J Timber Company v. Broome as a bar to Plaintiffs’ vicarious liability claims against T & M Foods, Ltd., since the company’s negligent employee had not been released from liability.
(3) In the event that J & J Timber Company v. Broome was applicable to this case, whether a retroactive application of the case would violate the Contracts Clause of the Mississippi Constitution.
(4) Whether the Trial Court abused its discretion in denying Plaintiffs leave to amend their Complaint.

¶ 10. Because the trial court correctly applied J & J Timber to the case sub judice, and because the application of J & J Timber did not implicate the Contracts Clause of the Mississippi Constitution, this Court finds that the trial court did not err in granting T & M Foods’s Rule 60(b) motion and dismissing the case. With regard to the trial court’s decision to include Kent in the dismissal, the dismissal was proper as a matter of law although not properly done. Finally, this Court finds that the trial court did not abuse its discretion in denying the Whitakers’ motions filed after the trial court granted T & M Foods’s Rule 60(b) motion. Accordingly, this Court affirms.

STANDARD OF REVIEW

¶ 11. This Court conducts a limited review of a trial court’s decision to grant or deny relief from a judgment under Mississippi Rule of Civil Procedure 60. The Court’s review is limited to whether the trial court abused its discretion by ordering or denying relief. January v. Barnes, 621 So.2d 915, 927 (Miss.1992). See also Overbey v. Murray, 569 So.2d 303, 306 (Miss.1990). This Court reviews all issues of law de novo. Maldonado v. Kelly, 768 So.2d 906, 908(¶ 4) (Miss.2000).

ANALYSIS

1. Applicability of the Contracts Clause

¶ 12. The Mississippi Supreme Court decided the J & J Timber case on May 4, 2006. T & M Foods presented the J & J Timber case to the trial court on May 8, 2006, the day of trial. Mississippi law is clear that “newly enunciated rules of law are applied retroactively to cases that are pending trial or that are on appeal, and not final at the time of the enunciation.” Thompson v. City of Vicksburg, 813 So.2d 717, 721 (¶¶ 15-16) (Miss.2002). The Whitakers argue that J & J Timber should not be applied retroactively because a retroactive application would interfere with the release contract between Progressive and the Whitakers and would, therefore, violate the Contracts Clause of the Mississippi Constitution. The Whitakers’ argument is without merit.

¶ 13. The Contracts Clause of the Mississippi Constitution states that “[e]x post facto laws, or laws impairing the obligation of contracts, shall not be passed.” Miss. Const. Art 3, § 16. As the Mississippi Supreme Court explained in Tucker Printing Co. v. Board of Supervisors, 171 Miss. 608, 158 So. 336 (Miss. 1934),

The obligation of a contract, in the meaning of these constitutional provisions, depends on the law in existence when the contract was made. By the obligation of a contract is meant the law under which the contract was made as well as all the remedies for its enforcement, or after provided remedies equally adequate. Legislation of a state impairing the obligation of a contract made under its authority is void, and the courts, in enforcing the contract, will pursue the same course and apply the same remedies as though such void legislation had never existed. The law in force at the time the contract was made forms a part of it, and is written into the contract as much as if expressly incorporated therein.

Id. at 338. As Tucker clearly states, in order for a party to invoke this provision of the Mississippi Constitution, the contract at issue must have been made under the authority of a statute that affects the ability of the parties to enforce the contract, either because the statute has been amended or repealed. In other words, the Mississippi Constitution “prohibits the states from passing laws which impair the obligations of contracts.” Gulf & S.I.R. Co. v. Adams, 90 Miss. 559, 45 So. 91 (1907). In this case, the Whitakers did not rely on any statutory authority when they entered into the contract with Progressive. Instead, they entered into the contract based upon prior judicial decisions regarding the release of a tortfeasor in a vicarious liability situation. Accordingly, the contracts clause of the Mississippi Constitution is not applicable.

2. The trial court properly applied J & J Timber Co. v. Broome

¶ 14. In J & J Timber, the plaintiffs were wrongful death beneficiaries of two persons killed in a collision between a J & J Timber truck and a tour bus. J & J Timber, 932 So.2d at 2 (¶¶ 2-3). The driver of the J & J Timber truck was an employee of Jim Smith Trucking, a company that contracted with J & J Timber to provide drivers to haul cut timber to timber mills. Id. at 2(¶ 2). Before filing suit against J & J Timber, the plaintiffs reached a settlement with the driver and with Jim Smith Trucking. In that settlement agreement and release, the plaintiffs released the driver and Jim Smith Trucking from any and all claims related in any way to the accident, but the plaintiffs specifically reserved their right to pursue “any and all claims we may have of any kind and type whatsoever relating to the incident against J & J Timber....” Id. at 2 — 3(¶ 4). The plaintiffs further agreed “to defend, indemnify, and hold harmless the Releasees [the driver and Jim Smith Trucking] from any and all claims and damages, including third-party claims for damages resulting from or in any way arising out of’ the accident. Id.

¶ 15. The plaintiffs then filed suit against J & J Timber and alleged that J & J Timber was vicariously liable for the negligence of the driver, who the plaintiffs claimed was an employee of J & J Timber. Id. at 3(¶ 5). Following a trial, the jury returned a verdict in favor of J & J Timber. The trial court, however, granted the plaintiffs a new trial. The Mississippi Supreme Court granted J & J Timber’s interlocutory appeal.

¶ 16. The Mississippi Supreme Court held that J & J Timber was entitled to a dismissal as a matter of law. Id. at 9(¶ 30). The Court held that “[a]n action against an employer based on the doctrine of respondeat superior is a derivative claim arising solely out of the negligent conduct of its employee within the scope of his or her employment.” Id. at 6(¶ 19). Once the claim against the sole tortfeasor is settled, the vicarious liability claim becomes barred because the “vicarious liability claim itself is extinguished when the solely negligent employee is released. There can be no assessment of damages against the employer when no action can be brought against the only negligent party — the employee.” Id. at 6 (¶¶ 19, 21).

¶ 17. The Court also discussed the “circle of indemnity” as another reason for its decision. Because the driver was the only negligent party, if the plaintiffs were to recover damages from J & J Timber under the vicarious liability theory, J & J Timber would have a common law right of indemnity against the driver. The driver, having contracted with the plaintiffs to have them indemnify him for any damages, would then seek indemnity from the plaintiffs, to whom the original judgment was paid. In effect, the plaintiffs would have to pay back their own judgment, which would render the judgment moot. Id. at 7 (¶¶ 22-24).

¶ 18. In the case sub judice, the Whitakers argue that they did not release Kent but simply agreed not to seek execution for a judgment against Kent’s personal assets. The release provided as follows:

3.It is the intent of this Settlement Agreement and Release to settle all claims and controversies between Dimple Whitaker and Clyde Whitaker and Progressive arising out of the suit referenced in paragraph 1 ■ above. It is further understood by the Whitakers and their counsel that this agreement and the payment of the sums noted below does not constitute an admission of liability on behalf of Progressive or Robert Y. Kent, the same being expressly denied. It is further understood that Progressive, by negotiating this settlement agreement, does not admit that the accident that occurred in December 1999 is covered under the liability provisions of the policy issued to Kent.
4. Dimple Whitaker and Clyde Whitaker do hereby release, discharge and give up all claims and causes of action they have against Progressive arising out of the automobile accident in December 1999 in which Dimple Whitaker and Robert Y. Kent were involved, or any efforts on behalf of Progressive to settle the claims of Clyde and Dimple Whitaker as more fully referenced in Civil Action No. 01-039(G)L in the Circuit Court of Lee County, Mississippi.
5. Additionally, Dimple Whitaker and Clyde Whitaker do hereby agree that in making any pursuit of their claim with respect to the automobile accident, they will not seek execution against personal assets of Robert Y. Kent and, instead, will seek to satisfy any judgment only from assets of T & M Foods, and from any liability insurance carrier of T & M Foods, Ltd. applicable to the accident involving Robert Y. Kent and Dimple Whitaker, if any.

¶ 19. While the third and fourth paragraphs of the release purport to release Progressive only, and not Robert Y. Kent, the language of the fifth paragraph clearly indicates that, for all intents and purposes, the Whitakers did not intend to pursue any claims against Kent personally. The language of the release clearly indicates that Kent is intended to remain in the litigation for the sole purpose of the Whit-akers’ pursuit of T & M Foods. Kent was covered only by the Progressive policy; therefore, the Whitakers could not collect damages from any other source in order to satisfy a judgment against Kent. Accordingly, the Court finds that the Whitakers effectively released Kent when they agreed not to execute on his personal assets because there were no other damages to be recovered.

¶ 20. The “circle of indemnity” argument also applies in this case and supports the argument that Kent was released from liability. T & M Foods argues that, in the event the Whitakers successfully obtained a judgment against T & M Foods, T & M Foods would exercise its common law right of indemnity against Kent, which would include a judgment against Kent’s personal assets. Kent would then seek to enforce the clause in the release in which the Whitakers agreed “to hold Progressive and the personal assets of Robert Kent harmless from any claim that may be asserted against them by way of subrogation, assignment, lien or otherwise. ...” (emphasis added). The Whitakers would be obligated to reimburse Kent, who would, in turn, reimburse T & M Foods. As in J & J Timber, the plaintiffs would pay their own judgment.

¶ 21. The Whitakers argue that no such circle of indemnity exists because T & M Foods’ insurer could not seek indemnity against Kent. This argument fails for two reasons. First, the Court’s review of the insurance policy at issue clearly establishes that T & M Foods is the only insured under the terms of the policy. Kent is in no way protected as an insured. Accordingly, Kent is not protected from an action against him seeking indemnification. Second, nothing in the amended complaint or in any of the Whitakers’ other court filings indicates that they were seeking judgment against T & M Foods’ insurer only. In the event that the Whitakers obtained a judgment in excess of the policy limits or that the policy did not apply, T & M Foods would be responsible for payment of the judgment and would be able to seek indemnification from Kent.

¶ 22. Under the rule of law articulated in J & J Timber, the release of Kent operated to release T & M Foods as well. As discussed supra, the trial court was correct in applying the J & J Timber decision retroactively to the case sub judi-ce. This Court holds that the trial court acted properly in granting T & M Foods’ Rule 60(b) motion for relief from the denial of summary judgment.

3. The trial court did not err in dismissing Kent.

¶ 23. The Whitakers argue that the trial court erred in dismissing Kent in the order granting T & M Foods’ Rule 60(b) motion for relief from the denial of summary judgment. The Whitakers contend that because the trial court already had entered a default judgment against Kent on September 2, 2004, for his failure to appear for his deposition, the trial court could not enter an order granting Kent judgment as a matter of law unless Kent requested that relief pursuant to Rule 60(b).

¶ 24. The Whitakers’ argument is technically correct. The record reflects that Kent did not participate in the Rule 60(b) judgment. T & M Foods alone sought relief from the denial of the summary judgment motion. Mississippi law requires that, in order to receive relief from a default judgment, a defendant must seek that relief following the procedures set forth in Mississippi Rule of Civil Procedure 60(b). See State of Mississippi ex rel. Mississippi Bureau of Narcotics v. One (1) Chevrolet Nova Automobile and Nine Thousand Eight Hundred Dollars Case Seized Money, 573 So.2d 787, 789 (Miss.1990). The trial court may not grant relief from a default judgment sua sponte.

¶ 25. In this case, however, even if the Court were to reverse the portion of the order on the Rule 60(b) motion dismissing Kent on the grounds that the trial court improperly granted relief to Kent, such a ruling would be pointless. The trial court apparently granted the relief to Kent in recognition of the fact that the default judgment was void ab initio in light of the J & J Timber case. As a matter of law, the date that the Whitakers entered into the release with Progressive was the date that Kent effectively was dismissed from the litigation with prejudice and the date that T & M Foods became entitled to summary judgment as a matter of law. The Whitakers entered into that release with Progressive on September 17, 2002. The default judgment was not entered until May 26, 2006.

¶ 26. This Court has the ability to take notice of the state of the law and the state of the record and, in the interests of judicial economy, has adopted the standard practice of affirming the holding of a trial court where the trial court’s holding reached the right conclusion for the wrong reasons. See Tedford v. Dempsey, 437 So.2d 410, 418 (Miss.1983). Although the trial court erred procedurally in noting Kent’s dismissal from the case via the order granting T & M Foods’ Rule 60(b) motion, the reality of the case is that Kent was dismissed from the case by the Whit-akers’ own actions on September 17, 2002. Accordingly, this Court holds that the trial court did not err in dismissing Kent as a matter of law, although the Court acknowledges that the trial court erred in the procedure by which it dismissed Kent.

4. The trial court did not err in denying the Whitakers’ motion to amend.

¶ 27. The Whitakers argue that the trial court erred in failing to permit them to amend their complaint. Following the trial court’s decision on the Rule 60(b) motion, which applied the recent J & J Timber decision, the Whitakers sought to set aside the September 17, 2002, release in their proposed second amended complaint, citing a mutual mistake of the law.

¶ 28. This Court reviews a trial court’s denial of a motion to amend a complaint under the abuse of discretion standard. See Pratt v. City of Greenville, 804 So.2d 972, 976(¶9) (Miss.2001). As long as the trial court properly applied Mississippi Rule of Civil Procedure 15(a), this Court will not disturb the trial court’s decision to deny the motion to amend.

¶ 29. Mississippi Rule of Civil Procedure 15(a) governs a plaintiffs right to amend his complaint and provides as follows:

Amendments. A party may amend his pleading as a matter of course at any time before a responsive pleading is served, or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within thirty days after it is served. On sustaining a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), or for judgment on the pleadings, pursuant to Rule 12(c), thirty days leave to amend shall be granted, provided matters outside the pleadings are not presented at the hearing on the motion. Otherwise, a party may amend his pleading only by leave of court or upon written consent of the adverse party; leave shall be freely giv en when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within ten days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders.

Miss. R. Civ. P. 15(a) (emphasis added). In the case sub judice, the Whitakers could only argue that they had a right to amend under the phrase “when justice so requires.” A key factor to be considered in granting leave to amend in the interests of justice is “prejudice to the opposing party” and “the court will ordinarily refuse to grant such permission where the motion comes so late and in such circumstances that the right of the adverse party will necessarily be prejudicially affected.” Pratt, 804 So.2d at 976(¶ 12).

¶ 30. In this case, had the trial court granted the Whitakers leave to amend, the rights of all the defendants would be prej-udicially affected. In particular, Progressive, who had been dismissed as a result of the settlement agreement, would have been most prejudicially affected. Progressive paid consideration of the policy limits of $10,000 in exchange for a release of both Progressive and Kent. Additionally, to grant the Whitakers permission to amend them complaint at such a late date — essentially on the eve of trial — would prejudice T & M Foods. Accordingly, the Court finds that the trial court did not abuse its discretion in denying the Whitakers’ motion to amend.

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

LEE AND MYERS, P JJ., IRVING, GRIFEIS, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. CHANDLER AND BARNES, JJ., NOT PARTICIPATING.

      . At all times in this litigation, Kent and T & M Foods have been represented by the same attorney.


author: CARLTON, J.,

text:
    Shannon LEWIS, Jana Lewis, Individually, and on Behalf of the Wrongful Death Beneficiaries of Minor William Robertson Lewis, Deceased; and Calvin E. Robertson, Individually, and on Behalf of all the Wrongful Death Beneficiaries of Dorothy P. Robertson, Deceased, Appellants, v. PROGRESSIVE GULF INSURANCE COMPANY, INC., Appellee.
    No. 2008-CA-00781-COA.
    Court of Appeals of Mississippi.
    March 31, 2009.

      B. Wayne Williams, Reagan David Wise, Tupelo, attorneys for appellants.
    James L. Perry, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. This appeal arises from an order granting summary judgment in favor of Progressive Gulf Insurance Company, Inc. (Progressive). The trial court found that a policy of automobile insurance issued by Progressive to Lofton Timber Company (Lofton) did not provide any coverage for the independent contract hauler, Albert Nickerson d/b/a Nickerson Trucking (Nickerson Trucking), or Nickerson’s driver, Cleansy Barksdale (Barksdale). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On February 12, 2004, Barksdale ran a stop sign at an intersection in Attala County, Mississippi and crashed into a vehicle occupied by Shannon and Jana Lewis; their infant son, William Robertson Lewis; and Dorothy Robertson. William Lewis and Dorothy Robertson died as a result of the accident. The logging truck Barksdale was driving was owned by Nick-erson Trucking. Barksdale had been hired by Nickerson Trucking to take a load of wood from Lofton’s storage facility to a mill owned by Georgia Pacific in Monticello, Mississippi. The accident occurred while Barksdale was en route to Nicker-son’s house to park the logging truck.

¶ 3. The wrongful death beneficiaries, Shannon and Jana Lewis, initially filed suit against Barksdale, Nickerson Trucking, Georgia Pacific, Lofton, Charles Donald, Jr., and Charles Donald Pulpwood, Inc. The Lewises later amended their complaint to add Progressive, asking the court to declare that the automobile insurance policy Progressive issued to Lofton also covered Barksdale and Nickerson Trucking. None of Nickerson Trucking’s vehicles were listed on the Lofton insurance policy, and Barksdale was not listed as an insured driver on the Lofton insurance policy.

¶ 4. In the Lewises’ November 18, 2004, complaint, the Lewises sought a declaratory judgment that Progressive had issued an insurance policy to Lofton with a policy limit of $1,000,000 that covered “not only [Lofton], but also Nickerson Trucking and/or one or more of the other named defendants by way of its terms and conditions.” Progressive filed a motion for summary judgment on August 22, 2007.

¶ 5. On April 9, 2008, the trial court granted Progressive’s motion for summary judgment. The trial court found that Lof-ton was not renting the Nickerson truck on the date of the accident. The trial court explained its order granting summary judgment as follows:

Lofton hired Nickerson to provide them with a service; that service being one of hauling logs. While Nickerson had to have a driver, truck and trailer to accomplish this task, it was the service of hauling the logs that Lofton had contracted for with Nickerson, and not a truck rental. Finally, the plaintiffs have provided no evidence ... that would show that the Nickerson truck was a “hired auto” under the terms of the insurance policy issued by Progressive.

¶ 6. The Lewises now appeal alleging that the Nickerson truck driven by Barksdale at the time of the accident was a “hired auto” under the hired-auto provision of Lofton’s commercial automobile insurance policy with Progressive; therefore, the trial court erred when it granted summary judgment in favor of Progressive. Finding no error, we affirm.

STANDARD OF REVIEW

¶7. We apply a de novo standard of review to a grant of summary judgment by the trial court. Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002(7) (Miss. 2001). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). “The evidence must be viewed in the light most favorable to the party against whom the motion has been made.” Northern Elec. Co. v. Phillips, 660 So.2d 1278, 1281 (Miss.1995).

¶ 8. “The burden of demonstrating that no genuine issue of fact exists is on the moving party.” Lewallen v. Slawson, 822 So.2d 236, 238(6) (Miss.2002) (citation omitted). “The presence of fact issues in the record does not per se entitle a party to avoid summary judgment.” Id. “The existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact.” Id. (citation omitted).

WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO LOFTON

¶ 9. On February 12, 2004, the date of the accident, Lofton had an automobile liability insurance policy issued by Progressive. Neither Barksdale nor Nicker-son Trucking were listed as insured drivers or entities in the policy. However, the Lewises argue that the Nickerson truck is covered under the portion of the policy that is titled, “Hired Auto Coverage.” That portion of the policy states the following:

1. The definition of your Insured auto includes hired autos. Such insurance applies to:
a. You, as rentee of such auto, in the same manner as if you were the owner, and
b. each of the following, as Insureds:
(i) the owner of such auto
(ii) any lessee of [whom] you are a sub-lessee
(iii) any agent or employee of such owner or lessee,
while such auto is being used in your business by you or for personal or pleasure purposes.
2. When used in this endorsement, “hired auto” means an auto which is not owned by you, registered in your name, or borrowed from your employees and which is obtained under a short-term rental agreement not to exceed thirty (30) days.
3. The Insurance provided by this en-’ dorsement is excess over any other valid and collectible insurance whether primary, excess, or contingent.
4. “Cost of Hire” is the total amount paid by you for the hire of automobiles including charges for services performed by motor carriers of property or passengers which are subject to the compulsory requirements of any motor carrier law or regulation.
5. The premium for this hired auto coverage is based on cost of hire, and is subject to a minimum cost of hire as listed below. We may audit the cost of hire and bill for additional premium; for up to three years after the policy inception.

Progressive argues that under the terms of the “hired auto” policy, the Nickerson truck was not covered because there was no short-term rental agreement between Lofton and Nickerson Trucking.

¶ 10. The Lewises argue that even though “Nickerson/Barksdale may have been an independent contractor,” Lofton had “rented” the Nickerson truck involved in the accident. The Lewises reason that “Lofton hired Nickerson/Barksdale on a job-by-job basis”; therefore, “every time Nickerson/Barksdale hauled logs for Lof-ton[,] the Nickerson/Barksdale vehicle was being operated under a ‘short-term rental agreement.’ ” The Lewises state that the term “short-term rental agreement” was not defined anywhere in the policy and that the policy contained no requirement of a written rental agreement. From this proposition, the Lewises leap to the conclusion, without citing any case law, that “[tjhus, the vehicle being driven by Barks-dale was a ‘hired auto’ as defined by the policy.”

¶ 11. The present appeal is a companion case to Stewart v. Lofton Timber Co., LLC, 943 So.2d 729 (Miss.App.2006). Although the plaintiffs in this case are now the Lewises, and the only defendant is now Progressive, Steivart addressed the facts surrounding the same accident and the same relationships among Georgia Pacific, Lofton, and Nickerson Trucking. Id. at 732(1-6). In Stewart, we held that Nickerson Trucking was an independent contractor, hired by Lofton to haul logs to Georgia Pacific. Id. at 734(15). “An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.” Id. at 733(10) (citation omitted).

¶ 12. To begin our analysis, we now turn to the basic principles in analyzing contracts between individuals and insurance companies. Before recovery is warranted, we must decide whether the individual is an insured under the insurance contract. See Meyers v. Am. States Ins. Co., 914 So.2d 669, 676(21) (Miss.2005) (citations omitted). “The central factor in making this determination, which involves a question of law for this Court to resolve, is whether the policy provision under review is ambiguous.” J &W Foods Corp. v. State Farm Mut. Auto. Ins. Co., 723 So.2d 550, 552(7) (Miss.1998). “If this Court finds an insurance policy ambiguous, we must necessarily find in favor of coverage.” Id.

¶ 13. “The initial question of whether the contract is ambiguous is a matter of law, while the subsequent interpretation of an ambiguous contract is a finding of fact.” Phillips v. Enter. Transp. Serv. Co., 988 So.2d 418, 421(13) (Miss.Ct.App.2008) (citing Clark v. State Farm Mut. Auto. Ins. Co., 725 So.2d 779, 781(5) (Miss.1998)). “If a contractual term is unambiguous and not subject to interpretation, then it will be enforced as written, without attempting to surmise some ‘possible but unexpressed intent of the parties.’ ” Id. (citation omitted). “The fact that parties may disagree over the meaning of a contractual term does not, by itself, render that term ambiguous.” Id. (citation omitted).

¶ 14. This Court will construe the provisions of an insurance contract strongly against the drafter. J & W Foods Corp., 723 So.2d at 552(8) (citation omitted). We will interpret and construe an insurance policy liberally in favor of the insured. Id. (citation omitted).

¶ 15. The evidence presented in this case indicates that the vehicle involved in the accident was owned by Nickerson Trucking, not by Lofton. Lofton’s agreement with Nickerson Trucking represented a contract for services, specifically the hauling of wood. No agreement existed between Nickerson Trucking and Lofton for the purchase, lease, rental, or hiring of the specific Nickerson truck in question or of any other vehicle owned by Nickerson Trucking. Furthermore, in granting summary judgment to Progressive, the trial court found Nickerson Trucking to be an independent contractor of Lofton, not one of its employees, and the Lewises admit this finding in their brief.

¶ 16. Upon reading the language of Progressive’s insurance policy, we find, as a matter of law, no ambiguity with the term “hired auto.” See Phillips, 988 So.2d at 423(25) (finding that there was no ambiguity in the phrase “hired auto” and that the automobile involved in the accident was not a “hired auto” within the plain meaning of that phrase and that the contract at issue was for the services of an independent contractor and that the contracting did not cover the transportation services of an independent contractor). As defined in the policy, a “hired auto” was an automobile that Lofton leased, hired, rented, or borrowed. In this case, Lofton did not “hire” the “auto” that was involved in the accident.

¶ 17. Lofton did, however, “hire” the “services” of Nickerson Trucking, which incidentally included the use of the truck that was involved in the accident. There was also no indication that Lofton had any control over which truck Nickerson Trucking used to haul wood from Lofton’s facility to the Georgia Pacific mill. Barksdale, the driver of the truck involved in the accident, was an employee of Nickerson Trucking, not an employee of Lofton. Furthermore, aside from designating pickup and drop-off locations, Lofton had no control over the methods or routes used by Nickerson Trucking to haul wood. Nick-erson Trucking owned its own trucks, hired its own drivers, provided its own insurance, and controlled all operations of its business.

¶ 18. “Interpreting a Mississippi insurance contract, the Fifth Circuit noted that courts have recognized that ‘[f]or a vehicle to constitute a hired automobile, there must be a separate contract by which the vehicle is hired or leased to the named insured for his exclusive use or control.’ ” Phillips, 988 So.2d at 422(22) (quoting Sprow v. Hartford Ins. Co., 594 F.2d 418, 422 (5th Cir.1979)); see also Toops v. Gulf Coast Marine, Inc., 72 F.3d 483, 487-88 (5th Cir.1996) (stating that “for a vehicle to constitute a hired automobile, there must be a separate contract by which the vehicle is hired or leased to the named insured for his exclusive use or control” and that the hired vehicle must also be under the named insured’s exclusive use or control) (citation omitted). The evidence in this case reflects that Lofton had no control over Nickerson Trucking’s operations, and Lofton did not use or control any of Nick-erson Trucking’s vehicles. Again, no agreement or contract existed between Lofton and Nickerson Trucking providing that Lofton would acquire any control over Nickerson Trucking’s vehicles.

¶ 19. Taking the evidence in a light most favorable to the Lewises, the evidence reflects that the truck was owned by Nickerson Trucking, driven by Barks-dale — a Nickerson Trucking employee— and covered by separate insurance that was provided by Nickerson Trucking. See J &W Foods Corp., 723 So.2d at 552(8). Nickerson Trucking was an independent contractor of Lofton, and Lofton did not use or control the truck in question or any other vehicle owned by Nickerson Trucking. See Toops, 72 F.3d at 487-88. As the phrase “hired auto” was defined in the Progressive insurance policy, the trial court was correct in finding that under controlling ease law that Lofton did not lease, hire, rent, or borrow the truck involved in the accident from Nickerson Trucking. The trial court also found that no evidence was presented to show that Barksdale was someone that was using a covered “auto” that Lofton owned, hired, or borrowed; therefore, Barksdale was not an “insured” as defined by the policy. Accordingly, we find that the trial court did not err in granting Progressive’s motion for summary judgment, and we affirm that judgment.

¶ 20. THE JUDGMENT OF THE AT-TALA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . The Attala County Circuit Court found that the Lewises had acknowledged the affirmation of summary judgment on November 7, 2006, in favor of Lofton and Georgia Pacific in Stewart v. Lofton Timber Co., LLC, 943 So.2d 729, 735 (21-23) (Miss.Ct.App.2006) and that they were collaterally estopped from recovering against Georgia Pacific and Lofton on the theories of respondent superior, vicarious liability, and joint venture. Progressive is now the only defendant in this matter.

      . The Lewises also argue as a sub-issue that the trial court prematurely ruled on Progressive’s motion for summary judgment because the Lewises should have been given the opportunity to depose Progressive’s corporate representative before any motion for summary judgment was ruled upon. However, the Lewises fail to demonstrate how any information from Progressive’s corporate representative would have enabled them to develop their case any further. Moreover, we find that under our current case law and the facts of the case, further discovery would not have aided the Lewises in avoiding an adverse rendering of summary judgment. See Powe v. Roy Anderson Constr. Co., 910 So.2d 1197, 1205(25) (Miss.Ct.App.2005) (stating that summary judgment was not premature, even though the appellants claimed that they "did not yet have sufficient time to conduct discovery on outstanding fact issues” when law was clearly decisive on the outcome of the case); of. Malone v. Aetna Cas. and Sur. Co., 583 So.2d 186, 187 (Miss.1991) (reversing the trial court’s granting of motion for summary judgment for Aetna when beneficiaries had not been provided reasonably sufficient time to develop their theory of liability).