text:
    Scott Daniel BAKER, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01194-COA.
    Court of Appeals of Mississippi.
    Jan. 18, 2011.
    Réhearing Denied June 7, 2011.
    Certiorari Denied Sept. 15, 2011.

      William C. Stennett, attorney for appellant.

      Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   LEE, P.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. A jury in the Lowndes County Circuit Court convicted Scott Daniel Baker of felony child abuse. Baker was sentenced to ten years in the custody of the Mississippi Department of Corrections with five years’ post-release supervision and ordered to pay a $1,000 fine. Baker filed post-trial motions, which were subsequently denied.

¶ 2. Baker now appeals, asserting the following issues: (1) the trial court erred in allowing letters written by Baker into evidence; (2) the trial court erred in failing to allow evidence of his mental state at the time the letters were written; (3) the trial court erred in allowing evidence of a prior felony conviction; (4) the evidence was insufficient to support the guilty verdict; and (5) the guilty verdict is against the overwhelming weight of the evidence.

FACTS

¶ 3. Baker was married to Leigh Baker and lived with her and her two daughters in a mobile home in Columbus, Mississippi. Leigh was pregnant with Baker’s child. On the morning of May 19, 2005, Leigh went into her four-year-old daughter’s room and noticed that Katie’s face was bloody and swelling. Katie told Leigh that Maureen, Leigh’s other daughter who was eighteen-months-old at the time, had struck her with a Leap Pad toy. Leigh then took Katie to see the doctor.

¶ 4. Dr. Pam Sykes testified that Katie presented with significant swelling and bruising of her face and forehead and a laceration on her right cheek. Dr. Sykes had seen Katie the day before and testified that Katie did not have any facial trauma at that time. Dr. Sykes asked Katie what had happened, and Katie responded that Baker had hit her with a Leap Pad toy. Dr. Sykes stated that only multiple blows using great force could have caused the extent of Katie’s injuries. Dr. Sykes did not think it would have been possible for Maureen or Katie herself to have caused these injuries.

¶ 5. Katie testified that Baker came into her room during the night and punched her several times in the head. Katie stated that she stayed in bed because she was afraid Baker would come back and hit her again.

¶ 6. Rachel and Alex Lawrence also lived in the mobile home. Rachel and Alex were staying in the bedroom next to Katie and Maureen. Rachel and Alex each testified that they did not hear anyone go into the girls’ room that night.

DISCUSSION

I. BAKER’S LETTERS

¶ 7. In his first issue on appeal, Baker argues that several letters written by him to Leigh should not have been allowed into evidence. Baker contends that the letters were written while he was in jail approximately a year prior to May 19, 2005. The pertinent parts of these letters contained numerous statements that Baker, upon his return from the penitentiary, would discipline the children if they misbehaved or wet the bed. Baker used several phrases, such as “she will get to know my paddle,” “whip her good,” “whip that ass with a belt,” and “whip her ass hard everyday of the year.” These letters contained vulgar and inflammatory language. After a hearing on the matter, the trial court allowed the letters to be introduced into evidence with information unrelated to the charges redacted. The trial court allowed the letters to be introduced pursuant to Rule 403 and Rule 404(b) of the Mississippi Rules of Evidence. The letters were used during the State’s cross-examination of Leigh and Baker.

¶ 8. Rule 404(b) allows evidence of “other crimes, wrongs, or acts” to show proof of “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” This evidence must also pass the test in Rule 403, whether the probative value of the evidence is “substantially outweighed by the danger of unfair prejudice.” The trial court determined that the letters were admissible under 404(b) to show intent or absence of mistake or accident and that the letters were more probative than prejudicial.

¶ 9. Baker contends that the letters were written a year prior to the incident; thus, the letters were too remote in time to be relevant. We first note that we are not convinced that the letters constitute “other crimes, wrongs, or acts” under 404(b). Regardless, in a similar situation, the Mississippi Supreme Court stated that “even if the letters do not fall under Rule 404(b), our analysis is still essentially the same, since the letters could still be relevant under Rules 401 and 402 to show intent or motive.” De La Beckwith v. State, 707 So.2d 547, 579 (¶ 127) (Miss.1997); see also Kolb v. State, 542 So.2d 265, 269 (Miss.1989) (letters written by defendant from prison after arrest subjected to analysis under Rules 401 and 402); May v. State, 524 So.2d 957, 965 (Miss.1988) (threats to deceased would still be relevant under Rules 401 and 402). Rule 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 402 simply states that “all relevant evidence is admissible,” subject to certain exceptions.

¶ 10. No matter the avenue used to determine relevance, the evidence is still subjected to the Rule 403 test. In De La Beckwith, the supreme court, although failing to state with certainty whether the letters written by Byron De La Beckwith constituted “other crimes, wrongs, or acts,” ultimately determined that admitting the letters was more probative than prejudicial under Rule 403. De La Beckwith, 707 So.2d at 580 (¶ 130). In May, the supreme court noted that the question of remoteness in regard to a threat made ten months prior to a murder became a question of relevancy under Rule 401, and as a result, “[t]he Court would thus again be faced with the question of whether the trial [court] abused [its] discretion in admitting the testimony under Rule 403.” May, 524 So.2d at 965.

¶ 11. These letters written by Baker were relevant under Rule 401, and it was within the jury’s province to determine what weight to give them. De La Beck-with, 707 So.2d at 580 (¶ 128). Baker’s views on disciplining his children, however inflammatory or inarticulately put, offered an explanation for his actions. Furthermore, there was testimony that Baker had a violent temper and had difficulty exercising patience. We cannot find that the trial court abused its discretion in finding the letters were more probative than prejudicial. This issue is without merit.

II. EVIDENCE OF BAKER’S MENTAL STATE

¶ 12. In his second issue on appeal, Baker argues that the trial court erred by not allowing him to introduce evidence through witness testimony of his mental state at the time the letters were written. The trial court determined that since these witnesses were not with Baker when he wrote these letters, they could not testify as to his mental state at that time. The trial court was concerned that pursuant to Rule 403, this testimony would create “confusion of the issues” in the minds of the jury.

¶ 13. We cannot find an abuse of discretion by the trial court in refusing to allow this particular testimony. None of the witnesses offered had personal knowledge of Baker’s state of mind at the time he wrote the letters. This issue is without merit.

III. PRIOR FELONY CONVICTION

¶ 14. In his third issue on appeal, Baker argues that the trial court erred in admitting evidence of his prior felony conviction. At the close of its case, the State requested a hearing on the admissibility of Baker’s prior felony conviction under Rule 609(a)(1) of the Mississippi Rules of Evidence. The State wanted to use Baker’s accessory-after-the-fact conviction for impeachment purposes. The trial court conducted a hearing, pursuant to Peterson v. State, 518 So.2d 632, 636 (Miss.1987), and found the prior conviction to be admissible for impeachment purposes. The trial court did order a limiting instruction be given to the jury concerning this prior conviction.

¶ 15. According to Peterson, a trial court should consider the following factors when ruling on the admissibility of prior convictions under Rule 609(a)(1): “(1) [t]he impeachment value of the prior crime; (2)[t]he point in time of the conviction and the witnesses] subsequent history; (3)[t]he similarity between the past crime and the charged crime; (4)[t]he importance of the defendant’s testimony; [and] (5)[t]he centrality of the credibility issue.” Id. Furthermore, this Court applies the familiar abuse-of-discretion standard when reviewing a trial court’s decision to admit a prior conviction for impeachment purposes. Strickland v. State, 980 So.2d 908, 919 (¶ 18) (Miss.2008). The trial court made an on-the-record determination of the Peterson factors and found the prior conviction admissible for impeachment purposes.

¶ 16. In addition to the Peterson factors, the trial court also addressed Rule 403 to determine whether the admission of the prior conviction was more probative than prejudicial. The trial court ruled that the prior conviction would be admissible under Rule 403, finding that the prior conviction was not similar to the crime charged and a limiting instruction would be given to the jury. The trial court also noted that the jury would only be informed of the accessory-after-the-fact conviction and not the underlying crime of assault.

¶ 17. The trial court made a comprehensive review of the Peterson factors as well as Rule 403, and we can find no abuse of discretion in its ruling. This issue is without merit.

IV.INSUFFICIENT EVIDENCE

¶ 18. In his fourth issue on appeal, Baker argues that the evidence was legally insufficient to support the verdict. Specifically, Baker contends that the State failed to prove that Katie had suffered a serious bodily injury. Our standard of review in regard to challenges to the sufficiency of the evidence is well settled. “[T]he critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]’ ” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, that the essential elements of the crime existed, this Court will affirm the conviction. Id. However, it is well-settled law that the jury determines the credibility of witnesses and resolves conflicts in the evidence. Davis v. State, 866 So.2d 1107, 1112 (¶ 17) (Miss.Ct.App.2003).

¶ 19. Pursuant to Mississippi Code Annotated section 97-5-39(2)(a) (Rev.2006), “any person who shall intentionally ... whip, strike or otherwise abuse or mutilate any child in such a manner as to cause serious bodily harm, shall be guilty of felonious abuse of a child.... ” Dr. Sykes testified that although Katie had no permanent injuries and did not suffer any fractures, the wounds she received were serious. Dr. Sykes noted significant bruising and swelling of Katie’s face as well as a laceration on her cheek. Dr. Sykes further testified that only multiple blows using great force could have caused Katie’s injuries.

¶ 20. The jury was instructed as to the definition of “serious bodily harm,” and it was its responsibility to determine whether Katie’s injuries were serious. McBeath v. State, 739 So.2d 451, 455 (¶ 22) (Miss.Ct. App.1999). We find that there was sufficient evidence for the jury to find that Baker had inflicted serious bodily harm to Katie. This issue is without merit.

V. OVERWHELMING WEIGHT OF THE EVIDENCE

¶ 21. In his final issue on appeal, Baker argues that the jury verdict is against the overwhelming weight of the evidence. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). When reviewing the weight of the evidence, this Court sits as a “thirteenth juror.” Id.

¶ 22. Baker contends that the testimony of an eight-year-old child, who was four years old at the time of the incident, was unreliable and at odds with other testimony. However, Katie testified that she clearly saw Baker in her room that night and saw him strike her several times. Katie also told Dr. Sykes that Baker had hit her. The testimony of the other witnesses does not contradict Katie’s testimony. The other witnesses, namely Leigh and the Lawrences, testified that they would have heard if someone had entered Katie’s room that night and injured her. However, the jury clearly believed Katie’s testimony and resolved any other apparent conflicts in the testimony in the State’s favor. We cannot find that to allow Baker’s conviction to stand would sanction an unconscionable injustice. This issue is without merit.

¶ 23. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF FELONY CHILD ABUSE AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS’ POST-RELEASE SUPERVISION AND TO PAY A $1,000 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The Court of Appeals declines to identify victims of child abuse. In the interest of the child's privacy, the minor’s name, as well as the names of family members, have been substituted with aliases.


source: Caselaw Access Project

author: KING, C.J., ISHEE, J.,

license: Public Domain

text:
    Tavares SHOWERS, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00321-COA.
    Court of Appeals of Mississippi.
    Feb. 1, 2011.
    Rehearing Denied June 7, 2011.
    Certiorari Denied Sept. 15, 2011.

      Dennis Harmon, Columbus, attorney for appellant.

      Office of the Attorney General by Laura H. Tedder, attorney for appellee.
    Before KING, C.J., BARNES and CARLTON, JJ.
   KING, C.J.,

for the Court:

¶ 1. A jury sitting in Lowndes County Circuit Court found Tavares Showers guilty of manslaughter. Showers was sentenced to twenty years in the custody of the Mississippi Department of Corrections. Subsequently, Showers filed a motion for a judgment notwithstanding the verdict (JNOV) and/or a new trial. The motion was denied, and Showers appeals raising the following issues: (1) whether the trial court erred in refusing to grant a self-défense jury instruction that referenced the size discrepancy between Showers and the victim, (2) whether the trial court erred in finding Dr. Stephen Hayne qualified to testify as an expert witness, and (3) whether the trial court erred in admitting video footage of Showers, which was recorded inside an interrogation room of a police station, after he requested an attorney.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. On December 14, 2007, Showers, who was sixteen years old, arrived home in Columbus, Mississippi, and asked everyone present to leave the room so he could talk to his mother, Monica Showers (Monica). Jeremy Munson, a guest of the family, refused to leave. Showers and Munson began fighting, and the dispute resulted in Showers stabbing Munson. Munson died as a result of his injuries.

¶ 4. Showers was arrested on the same evening and taken to the Columbus Police Department for interrogation. Showers was taken to an interview room, which was equipped with cameras to record the interrogation. Showers was interrogated by Officer David Criddle, who read Showers his Miranda rights. Officer Criddle asked Showers if he wished to sign a waiver of his Miranda rights, and in response, Showers stated: “Hmmmm — when it says I do not want a lawyer at this time. But I do want one because it was self-defense. It was really self-defense.”

¶ 5. Officer Criddle attempted to clarify whether Showers wished to give a statement, and Showers repeatedly expressed the need for a lawyer. Initially, the questioning ceased. Officer Criddle later returned to the interrogation room. At this point, Officer Criddle informed Showers that because he had invoked his right to counsel, the officer could not ask him any questions. Officer Criddle then told Showers that he was willing to listen to Showers’s side of the story and take a written statement. Upon further questioning, Showers admitted that he had anger-management problems for which he had been treated and prescribed medication, but he had failed to take his medication. Showers then began talking to Officer Criddle about the altercation with Munson. Showers admitted that he had initially confronted Munson, and Munson punched him; then Showers reacted by reaching for the closest object, a kitchen knife, in order to retaliate.

¶ 6. The officer then permitted Monica and Showers’s aunt, Bernice Coussets, individually, to enter the interrogation room and speak with Showers. Showers reiterated to Monica and Coussets that the incident occurred because Munson would not leave. Showers again stated that when Munson would not leave, he approached Munson. After Munson punched him, Showers retaliated with the knife. Showers’s conversations within the interrogation room were recorded both visually and audibly and entered into evidence at Showers’s trial.

¶ 7. Other than the videotape, the only evidence introduced explaining the events leading to Munson’s death was the testimony of Showers’s sister, Laketa Showers. Laketa testified that she left the room when her brother requested; therefore, she did not see the beginning of the fight. Laketa stated that when she re-entered the room, Munson was holding Showers against the wall by Showers’s neck. According to Laketa, Showers was cutting Munson on his arm with a knife in an attempt to free himself. The fight ended when Munson let go of Showers.

¶ 8. Showers was indicted on the charge of murder. The jury found Showers not guilty of murder, but guilty of manslaughter. Showers filed a motion for a JNOV and/or a new trial; the motion was subsequently denied.

ANALYSIS

¶ 9. Showers has appealed the trial court’s decision to deny the motion fora JNOV and/or a new trial. A motion for a JNOV challenges the legal sufficiency of the evidence. Bush v. State, 895 So.2d 836, 848 (¶ 16) (Miss.2005). This Court must consider whether the evidence shows “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test, it is insufficient to support a conviction.” Id. (citation omitted).

¶ 10. Showers’s motion for a new trial challenges the weight of the evidence. Bush, 895 So.2d at 844 (¶ 18) (citation omitted). An appellate court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. Showers requests this Court reverse and remand this case with instructions for a new trial on each issue presented.

I. Self-Defense Jury Instruction

¶ 11. Showers argues that the trial court erred in refusing to grant a self-defense jury instruction that referenced the size discrepancy between him and the victim. “Whether to give a jury instruction is within the sound discretion of the trial court.” Chamberlin v. State, 989 So.2d 320, 341-42 (¶ 80) (Miss.2008) (citation omitted). We review the jury instructions given as a whole to determine whether the refusal of a particular instruction was in error. Taylor v. State, 763 So.2d 913, 915 (¶ 8) (Miss.Ct.App.2000). If the instructions fairly state the law of the case and no injustice is created, no reversible error will be found. Id.

¶ 12. The trial court gave Showers’s instruction on self-defense, which stated:

The Court instructs the jury that to make a killing justifiable on the grounds of self-defense, the danger to the defendant must be either actual, present and urgent, or the defendant must have reasonable grounds to believe that the victim intended to kill the defendant or to do him some great bodily harm, and in addition to this, he must have reasonable grounds to believe that there is imminent danger of such act being accomplished. It is for the jury to determine the reasonableness of the grounds upon which the defendant acts. If you, the jury, unanimously find that the defendant acted in self-defense, then it is your sworn duty to return a verdict in favor of the defendant.

¶ 13. However, Showers requested, but was refused, the following jury instruction:

If you believe from the evidence that the deceased was a much larger and stronger person than the Defendant, and was capable of inflicting great and serious bodily harm upon the Defendant with his hands and that the Defendant had reason to believe and did believe as a man of ordinary reason that he was then and there in danger of such harm at the hands of the deceased and used a knife, with which he fatally stabbed the deceased, to protect himself from such harm, then the Defendant was justified, and your verdict shall be “not guilty” even though the deceased may not have been armed.

¶ 14. It is Showers’s position that the refused jury instruction would have informed the jury about the theory of his defense. Showers’s suggests on appeal that he was fearful of Munson because of Munson’s size; therefore, Showers reached for the knife and stabbed Munson in self-defense. The Mississippi Supreme Court has held that where an attacker is much larger than the one attacked, the nature of the assault, though only with fists, might be such as to show that the one being attacked is in danger of great bodily harm and, therefore, justified in the use of a deadly weapon to defend himself. See Manuel v. State, 667 So.2d 590, 592 (Miss.1995).

¶ 15. It is true that a defendant is entitled to have jury instructions given which present his theory of the case. Smith v. State, 802 So.2d 82, 88 (¶20) (Miss.2001). Even so, this entitlement is limited in that the court may refuse an instruction that is without foundation in the evidence. Id. During trial, testimony was introduced to establish that Munson was nine inches taller and nearly 100 pounds heavier than Showers, but the record contains no evidence to support Showers’s argument that he was fearful of being harmed by Munson and reacted to protect himself. In fact, while in the interrogation room at the police station, Showers stated to Officer Criddle, and then to Monica and Coussets, that while Munson struck the first blow, he originally confronted Mun-son. Showers never suggested that his actions resulted from a fear of Munson and his size disadvantage. In fact, during the conversation with Coussets, Showers stated that his strength was commonly underestimated because of his small size.

¶ 16. The trial court refused the specific jury instruction and explained that there was no testimony to support the suggestion that Showers was in fear of great bodily harm or death from Munson due to Munson’s size. After a review of the trial record, this Court finds that the trial judge was correct in refusing the jury instruction. There was no evidence presented to suggest that Showers was fearful of being harmed by the victim because of his size. In explaining the course of events to Officer Criddle and his relatives, Showers never expressed any sense of fear, only retaliation. Where there was testimony as to the difference in size between the defendant and the deceased, but no testimony that the defendant feared for his safety as a result of that size difference, the granting of a self-defense jury instruction which focused upon that size difference would have been an improper comment upon the evidence by the trial court. This issue is ■without merit.

II. Expert Testimony

¶ 17. Showers argues that Dr. Hayne is not qualified to testify as a forensic pathologist, and even if he is, the trial court improperly limited the voir dire of Dr. Hayne. The admission of expert testimony is within the sound discretion of the trial judge. Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (¶ 4) (Miss.2003). The proper analysis for the admission of expert testimony is enumerated in the Mississippi Rule of Evidence 702. Id. at 35 (¶ 6).

¶ 18. Mississippi Rule of Evidence 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

¶ 19. Dr. Hayne testified that he obtained a medical degree from Brown University, completed pathology training at Letterman Army Medical Center, and had more than thirty-years experience within the field of forensic pathology. Dr. Hayne’s testimony as to his medical training and experience within the field exhibited sufficient “knowledge, skill, experience, training, or education.” There is no suggestion within the record that the testimony was based on unreliable principles and methods or that Dr. Hayne misapplied the principles and methods to the facts of this case. Therefore, Dr. Hayne met the standard for admission of expert testimony.

¶ 20. Showers further argues that the trial court improperly limited the voir dire of Dr. Hayne, warranting a remand for new trial. Showers suggests that the trial court improperly limited voir dire by failing to apply Presiding Justice Diaz’s concurring opinion in Edmonds v. State, which determined Dr. Hayne was not qualified to testify as an expert witness. 955 So.2d 787, 802-03 (Miss.2007) (Diaz, P.J., specially concurring). In Edmonds, Justice Diaz referenced an article from the American Bar Association Journal in which Dr. Hayne’s qualifications were attacked as being unreliable and referred to Dr. Hayne’s testimony as “quack-spertise.” Id. However, the majority of the court in Edmonds held that Dr. Hayne was qualified to testify as an expert in forensic pathology. Id. at 792 (¶ 8). Further, even after the court’s decision in Edmonds, the Mississippi Supreme Court has found Dr. Hayne qualified to testify as an expert in forensic pathology within Mississippi courts. See Lima v. State, 7 So.3d 903, 907-08 (¶¶ 17-20) (Miss.2009). Because Dr. Hayne met the standard for admission of expert testimony, the trial court did not err in admitting his testimony or limiting the voir dire. This issue is without merit.

III. Miranda Rights

¶ 21. The final issue before this Court is whether the trial court erred in admitting the video footage of Showers inside the interrogation room that was recorded after he had requested an attorney. The admissibility of evidence is within the sound discretion of the trial judge. Ross v. State, 954 So.2d 968, 992 (¶ 44) (Miss.2007).

¶ 22. On the evening of the altercation, Showers was arrested and brought to the police station for questioning. Before any interrogation, Officer Criddle informed Showers of his right to remain silent and his right to an attorney as mandated by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Showers refused to waive his Miranda rights and requested an attorney. The interrogation initially ceased, and Officer Criddle left the room. Officer Criddle later returned to the room and told Showers thdt he was not allowed to ask him any questions, but he was willing to listen and take a written statement. As a result, Showers explained to Officer Criddle that he had insisted on having a lawyer present because he stabbed Munson in self-defense. Showers admitted that he initially confronted Mun-son, and Munson punched him; then Showers reacted by reaching for the closest object, a kitchen knife, in order to retaliate. Officer Criddle left the room without asking any questions or making any comments related to the incident.

¶ 23. Shortly afterwards, Officer Crid-dle allowed both Monica and Coussets, individually, to enter the interrogation room and speak with Showers. Showers repeated the statements he made to Officer Criddle while talking to Monica and Cous-sets. The policy of the Columbus Police Department is to videotape all events occurring inside the interrogation rooms; thus, the video footage captured the conversations between Showers and Officer Criddle and Showers and his relatives. The police never warned Showers or his relatives that the events were being recorded.

¶ 24. Showers claims that admitting the videotape into evidence was a violation of his constitutional right to an attorney. The law is clear in regard to the protection of an accused’s constitutional rights during police interrogation. An accused must be warned of the right to remain silent and the right to an attorney before any custodial interrogation may occur, and once an accused asserts his right to an attorney, the right attaches immediately. Balfour v. State, 598 So.2d 731, 742 (Miss.1992) (quoting McNeil v. Wisconsin, 501 U.S. 171, 179, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991)). Once the right has attached, “any statements obtained from the accused during subsequent police-initiated custodial questioning regarding the charge at issue (even if the accused purports to waive his rights) are inadmissible.” Id. Once an accused has expressed a desire for counsel, interrogation must cease unless the accused initiates further communication. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

¶ 25. Initially, when Showers asserted his right to an attorney, Officer Criddle ceased the interrogation. That is reflected in the following exchange between Officer Criddle and Showers as found in a transcript of the videotape made by this Court for purposes of this appeal:

Officer Criddle:
Do you understand [your rights] Ta-vares?
Showers:
Nods affirmatively.
Officer Criddle:
OK, this next portion down here says:
I have read this statement of my rights and I understand what my rights are. I’m willing to talk to law enforcement officers and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.
Do you understand that portion of it? You sure?
Showers:
Nods affirmatively.
Officer Criddle:
Do you have any questions about that part?
Showers:
Hmmmm — when it says I do not want a lawyer at this time. But I do want one because it was self-defense. It was really self-defense.
Officer Criddle:
So what are you saying?
Showers:
I just need my lawyer.
Officer Criddle:
Ok. Tavares, I’m not going to force you to do anything. Ok?
Showers:
But I’ll talk and tell you what happened but I need a lawyer. Want me to tell you what happened?
Officer Criddle:
I’m not asking any questions. (Comments on Showers’s shirt).
But anything you wanna tell me, I’d be glad to listen.
Showers:
It was self-defense. It was self-defense. I just need to talk to my mama.

¶ 26. Officer Criddle later returned to the interrogation room, and the following conversation took place between Officer Criddle and Showers:

Officer Criddle:
Ok Tavares. Ok, you’ve requested to talk to an attorney. So, since you’ve done that, I can’t ask you any questions. Ok? Cause that’s what the law says. I’ve called your mother. She’s on her way up here. She’s gonna come in here and talk to you. Alright? That’s what you — I told you if I could do it, I would do it. And I kept my word.
Showers:
May I have some water?
Officer Criddle:
I’ll get you some water.
Showers:
I’m just too nervous, man.
Officer Criddle:
I’m gonna give you some water.
But, before I leave here, we’re going to wait on your mama — I want you to know that you have requested a lawyer, but at any time if you decide you want to talk to me without a lawyer present, you can tell me that and you can talk to me. Ok?
Showers:
Yes, sir.
Officer Criddle:
If you want to give me a statement on what happened and put it on paper that’ll be fine.
Showers:
I just want to go ahead and give you a statement of what happened.
Officer Criddle:
So you don’t want a lawyer now?
Showers:
I want a lawyer.
Officer Criddle:
Ok.
Showers:
I’m just gonna give you a statement of what happened. The day was Friday. I was angry. I been [sic] angry ever since. Ever since I had gotten out of Diamond Grove, I been [sic] angry. I had stopped taking my medicine and stuff. Then — I was doing good. I was out making money and stuff — just regular people, what did — you know what I’m saying. When I got out, you know what I’m saying. It started Sunday. And then you know, I’ve been — I’ve been trying to forgive myself ever since. I pray every night now.
And then today, I talk and asked them nicely to leave. Not to leave, but said could /all please step outside because I wanted to talk to my mama alone, by herself. I already told her I felt like I was going to get in a fight. I said I had a feeling I was going to get in a fight. I had told her before I had left. I had left [to go] to the park with my friend.
I had come back home and asked them again. I’m telling you I was mad. (Inaudible statement). I asked them to leave. Then he was like why we gotta leave. I was like you do not stay here, man. You do not stay here. Please leave. Then he was like what if I don’t leave? So I had walked up. And he had punched me right here. And then I just used the first thing I had put my hand on.
I didn’t try to. I just got a real, real, real serious temper problem. I don’t mean no harm to nobody. I don’t mess with anybody out there. I don’t do nothing [sic]. I come home. I respect my mama. Everything. But he had just swung on me. Made me mad. Then I get [sic] mad. I get [sic] mad! When I get mad, its like — I just blank out don’t know stuff when I get mad. I just pick up the first thing that was close to me and then start swinging. (Inaudible statement).
I don’t fight nobody [sic] in the street. I be [sic] to myself all the time. Everybody will tell you I be [sic] by myself unless I’m with one of my friends.
He had hit me. I did like this (stabbing motion) so he would move back but he just kept coming to me, so I just kept going like that (stabbing motion). I just panicked, just panicked. I didn’t try to do it. I hate that I did it though.

¶27. Clearly, Showers did not initiate the conversation; the officer did. Showers began to talk about the incident only after the officer initiated the conversation. Even as Showers explained that he reacted to Munson in self-defense, he still expressed his desire for an attorney. Because Showers clearly expressed his right to counsel and Officer Criddle initiated further conversation regarding the incident between Showers and Munson, the statements made in response to Officer Criddle while in the interrogation room are inadmissible. Therefore, the trial court erred in admitting the videotape that recorded the conversation between the officer and Showers.

¶ 28. Showers further argues that the trial court erred in admitting the video footage of Showers’s conversations with Monica and Coussets. It is Showers’s position that the police officers allowed his relatives into the room, while recording the conversations, in order to gain information. Thus, Showers suggests that the video footage is inadmissible because the actions of the police officers rose to the level of the functional equivalent of interrogation. “[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.” Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The functional equivalent of impermissible interrogation has been defined as “words or actions ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301, 100 S.Ct. 1682.

¶29. Even if the goal of the police officers in allowing Showers’s relatives into the interrogation room was to elicit a response from Showers, Mississippi courts have consistently held that questioning by a non-officer should not be regarded as an interrogation. See Brown v. State, 293 So.2d 425, 428 (Miss.1974). In fact, the United States Supreme Court has specifically held that allowing a suspect to speak with relatives does not rise to the functional equivalent of an interrogation. See Arizona v. Mauro, 481 U.S. 520, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987). Therefore, we find the trial court did not error in admitting the video footage of the conversations between Showers and his relatives.

¶ 30. Even though the trial court erred in admitting the video footage of the conversation between Showers and the officer, the content of the conversations between Showers and the officer and Showers and his relatives was identical.

¶ 31. We quote the pertinent parts of the conversation that occurred between Showers and his mother:

Monica:
They got to question you.
Showers:
... They came in here, asked me did I want to talk to [Officer Criddle] and read a paper to me. And then he told me if I signed it, then I’m going to tell him but if I not sign [sic] the paper, he isn’t going to ask me nothing. I told him I’d wait until I get a lawyer to talk.
Monica:
Let’s see what they charging [sic] you with first.
Showers:
Murder.
Monica:
That’s what they told you.
Showers:
No. But he [is] dead. If he [is] dead, that [is] straight murder.
Monica:
No, it’s self-defense, Tavares.
Showers:
I know it’s self-defense, but if he [is] dead, they [are] going to charge me with murder, mama. (Inaudible statement). I tried to tell you, mama. But you didn’t want to listen.
Monica:
Tell me what?
Showers:
I tried to tell you. I tried to tell you Sunday including until today. I tried to tell you, but you didn’t want to listen.
Monica:
Tell me what?
Showers:
Send me back to Diamond Grove. But you didn’t want to listen. I didn’t want everybody to know what I wanted to talk about. I tried to tell you. I had a feeling I was going to get to fighting. You know, I wish you had told them to step outside for a minute.
Showers:
Did you see how he punked me? Ain’t nobody punk me and get away with it. Now, I got me wearing orange for life.
Monica:
That just your mind. (Inaudible statement). You thinking all the wrong things.
Showers:
I can’t think right when I’m scared, mama.
Monica:
You need to sleep it off.
Showers:
I don’t be getting no [sic] sleep as it is. Wake up seven, six in morning and can’t go back to sleep.
Monica:
Inaudible statement (question regarding not sleeping).
Showers:
I be [sic] asleep during school.
Monica:
Should have been taking that medication.
Showers:
I was taking the medicine — I had stopped taking the medicine — I had stopped taking the medicine when I was sleeping at school.
Monica:
Just tell them everything that happened, you think that happened, you felt that happened.
Showers:
I already told them. I asked [Munson] nicely to leave, and then he got smart. So I walked up. He threw a punch, and I grabbed the first thing that came to me and that’s what happened. It was self-defense.

¶ 32. Once his mother left the interrogation room, Showers’s aunt was permitted to speak to Showers. We quote the pertinent part of the conversation that occurred between Showers and his aunt:

Showers:
[P]eople just think I’m weak because my body size. I’m a small sized person. That’s why I get that. Cause, I asked [Munson] nice to leave. I asked all of them. I told [list of names]. I said y’all, could y’all please step outside and let me talk to my mama real quick. I told them just like that. (Inaudible statement). I said forget him anyhow. I told him just like that. Then he was like — and I walked up and he just hit me. And I grabbed the first thing I put my hands on.
Coussets:
Is that what you told the police?
Showers:
I hadn’t talked to them. I told them I didn’t want to talk to them without no [sic] lawyer. (Inaudible statement). These folks don’t care about no [sic] black people, man. That’s all the white man wants. They want us to mess up so they can lock us away. And they never show no [sic] sympathy. None, whatsoever. You know why I had ran, I was scared.

¶ 33. During the conversations with Monica and Coussets, Showers reiterated his request for an attorney and claimed that his actions against Munson were taken in self-defense. Showers admitted to Monica that he needed his medication and that he had been feeling angry and had an impulse to fight. Showers also admitted to both Monica and Coussets that he had initially approached Munson out of anger. Showers never expressed any fear of Mun-son. Showers stated that Munson punched him, and Showers retaliated by stabbing Munson with a knife. In this circumstance, the admission of the video footage of the conversation between Showers and the officer constitutes harmless error because Showers made the same incriminating statements while talking to his relatives. Accordingly, this issue is without merit.

¶ 34. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

ISHEE, J.,

Dissenting:

¶ 35. With regard to the majority’s decision, I respectfully dissent. The majority notes that, once Showers requested an attorney, the right to an attorney immediately attached; thus, any statements obtained from the accused during the subsequent police-initiated custodial questioning regarding the charge at issue are inadmissible. Balfour v. State, 598 So.2d 731, 742 (Miss.1992). The majority noted that the trial court erred by admitting the video that recorded the conversation between the officer and Showers. However, because Showers had two similar conversations with his mother and aunt (two non-police officers), the majority found the admission of the videotaped conversation to be harmless error. I disagree.

¶ 36. At the time of the meeting in question between Showers and his mother and then the meeting between Showers and his aunt, he was in police custody and had requested an attorney. It is, therefore, undisputed that he could not be subjected to interrogation until he either received the assistance of counsel or initiated a conversation with the police. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Since neither event occurred, the videotaped evidence must be excluded if it was the product of “interrogation” within the meaning of Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

¶ 37. Police conduct may constitute “interrogation” even if a police officer does not pose direct questions to the suspect. In fact, the Mississippi Supreme Court has applied a broad interpretation to the term “interrogation” to include not only questioning, but rather “questioning and its functional equivalent.” Culp v. State, 933 So.2d 264, 273 (¶ 19) (Miss.2005). In In-nis, the United States Supreme Court defined “functional equivalent” to mean “words or actions ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Innis, 446 U.S. at 301, 100 S.Ct. 1682. In broadening its definition of “interrogation,” the Supreme Court in Innis noted that its concern in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) was that “the ‘interrogation environment’ created by the interplay of interrogation and custody would ‘subjugate the individual to the will of his examiner’ and thereby undermine the privilege against compulsory self-incrimination.” Innis, 446 U.S. at 299, 100 S.Ct. 1682.

¶ 38. Because it is difficult to determine what police measures and procedures actually fall under this “functional equivalent” category, the Supreme Court stopped short of creating an exhaustive list of police techniques that are held to be interrogation practices. Likewise, the law in this state provides little guidance as to what procedures should be considered interrogation. Pannell v. State, 7 So.3d 277, 283 (¶ 13) (Miss.Ct.App.2008). This Court has stated that interrogation “must reflect a measure of compulsion above and beyond that inherent in the custody itself.” Id. The test does not examine the subjective intent of the police, but rather, whether the officer “should ‘have known his actions were reasonably likely to elicit an incriminating response.’ ” Id.

¶ 39. Not only had Showers repeatedly requested counsel, neither he nor his mother or aunt were ever told or made aware that the room was “bugged.” He was never told he was going to be recorded, nor were there signs, inside or outside the room, that said he was going to be recorded. Had Showers known that the room was equipped with a video and audio recording device, it is my opinion that he would have never said anything to anyone, especially without a lawyer present. When Officer Criddle allowed Showers the opportunity to meet and speak with his mother and aunt, in my opinion, it was not only likely, but highly probable, that Showers would make a statement that the prosecutor might seek to introduce at trial. There is no other reason for taping the conversation. It follows that the police conduct in this case was the “functional equivalent” of deliberate, direct interrogation.

¶ 40. If Officer Criddle had felt that Showers was a danger to himself or his mother and aunt, there were alternate ways to observe the moment. In my opinion, had an officer accompanied his mother and aunt to the interrogation room (which is essentially what happened when the recorder was allowed to continue to record their conversation), their conversations would have sounded much different. Showers knew the dangers of speaking without a lawyer present — /or this exact reason. He even said so to his aunt, which is exactly why he had requested a lawyer.

¶ 41. What makes this even more offensive, is the fact that this is the stated policy of the Columbus Police Department — that is, essentially to obtain evidence through secretive, shady, and illegal means. Finally, I am of the opinion that Officer Criddle’s continuous communication attempting to persuade Showers into changing his mind with regard to his waiver of rights was also the “functional equivalent” of interrogation and, therefore, a violation of his constitutional rights — a violation I would never deem to be harmless.

¶ 42. In support of their harmless-error theory, the majority cites to Brown v. State, 293 So.2d 425 (Miss.1974) which states that the questioning of someone by a non-officer should not be regarded as an interrogation. Although, that is the proposition set forth in Brovm, there are differences between that case and Showers’s situation. The defendant in Brown, an adult, was visited in jail by the mother of the deceased and questioned as to why he had killed her daughter. Id. at 427. The deceased woman’s mother was allowed to testify about the conversation she had with Robert Brown.

¶ 43. Here, we have a different situation. The most significant difference is that Showers had repeatedly requested to speak with a lawyer before speaking with anyone. And his right to a lawyer was constitutionally guaranteed. First, I find it strange that Officer Criddle was able to arrange for Showers’s mother and aunt to meet with him, but for some reason, he was unable to find a lawyer for Showers. Second, Brown had the opportunity to cross-examine his witness on the stand. In this case, Showers had no such luxury; the only options Showers had would have been to take the stand himself and speak about the videotaped conversations or to remain silent.

¶ 44. There is nothing in the record, and Officer Criddle admitted that neither Showers nor his mother and aunt were aware their conversations were being recorded and that anything said in the room could be used against him in the court of law. The State contends that because the camera was visible, Showers should have known that he was being watched and recorded. I disagree. Although Showers might have seen the camera, it is safe to assume that because of his age and because of the situation he was in, Showers more likely believed that anything he said to his mother, of all people, would be free from the eyes and ears of the police.

¶ 45. Accordingly, I would reverse and remand for a new trial in accordance with this opinion.

GRIFFIS, J., JOINS THIS OPINION.


author: LEE, P.J.,

text:
    Lavon YANKTON a/k/a Lavan Yankton a/k/a Johnny Taylor, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01075-COA.
    Court of Appeals of Mississippi.
    Feb. 8, 2011.
    Rehearing Denied May 31, 2011.
    Certiorari Denied Sept. 22, 2011.

      W. Daniel Hinchcliff, attorney for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before LEE, P.J., ROBERTS and CARLTON, JJ.
   LEE, P.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Lavon Yankton was convicted by a jury in the Forrest County Circuit Court of aggravated domestic violence. The trial court sentenced Yankton to serve twenty years in the custody of the Mississippi Department of Corrections. Yankton filed post-trial motions, which were subsequently denied. Yankton now appeals, asserting that the trial court erred in allowing evidence of prior bad acts. Finding no error, we affirm.

FACTS

¶2. On September 26, 2007, Cynthia Yankton was at the apartment she shared with her husband, Yankton, and children in Hattiesburg, Mississippi, when Yankton attacked her. According to Cynthia, Yankton had recently lost some of their money gambling. Cynthia testified that she became angry and stayed with a friend for two days. Cynthia believed Yankton was angry with her for staying away for two days. Cynthia testified that Yankton grabbed her by the hair, threw her down, and began to kick her. Yankton then picked up a chain and struck her several times with it. Cynthia stated that Yank-ton also struck her in the head with the blunt side of a hatchet. Yankton also held the hatchet to her neck, which caused a laceration across her throat. According to Cynthia, Yankton forced her to disrobe and lie next to him on the bed. Yankton placed her in handcuffs and proceeded to fall asleep. Cynthia was able to call the police. Photographs of Cynthia’s numerous injuries were admitted into evidence.

DISCUSSION

¶ 3. In his only issue on appeal, Yankton argues that the trial court erred in allowing evidence of prior bad acts. Specifically, Yankton asserts that it was error to admit Cynthia’s testimony that Yankton had previously assaulted her. The standard of review concerning the admission or exclusion of evidence is abuse of discretion. Liddell v. State, 33 So.3d 524, 529 (¶ 12) (Miss.Ct.App.2010).

¶ 4. During Cynthia’s testimony on direct examination, the State asked her whether Yankton had ever hit her. Yank-ton’s counsel’s objection as to “possible prior bad acts” was overruled. However, Cynthia responded that Yankton had never hit her, only intimidated her. Later during direct examination, Cynthia testified that she was scared of Yankton “because in the past he did hurt me” and she knew “what he was capable of doing.” When the State tried to ask her how Yank-ton had hurt her, Yankton’s counsel objected. The trial court instructed the State to move along and concentrate on the crime for which Yankton was being tried. The jury never heard during Cynthia’s testimony on direct examination how Yankton had hurt her.

¶ 5. On cross-examination, Cynthia was asked about prior instances of domestic abuse and why she was frightened of Yankton. Cynthia testified that Yankton had hit her in the past. On redirect, the State elicited testimony from Cynthia about an incident where Yankton forced her into the trunk of a car and then assaulted her. Yankton’s counsel objected twice, and the trial court instructed the State to move along.

¶ 6. It is clear that Yankton’s counsel opened the door to the issue of prior instances of domestic abuse. On redirect, the State was then allowed to question Yankton about a previous instance of domestic abuse. See Martin v. State, 970 So.2d 723, 725-26 (¶ 11) (Miss.2007). Furthermore, the burden was on Yankton to request a balancing test pursuant to Rule 403 of the Mississippi Rules of Evidence to determine whether this evidence should have been excluded. See McLaurin v. State, 31 So.3d. 1263, 1269-70 (¶¶30-31) (Miss.Ct.App.2009). This issue is without merit.

¶ 7. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED DOMESTIC VIOLENCE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

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

      . Throughout the record Yankton’s first name is alternately spelled Lavon and Lavan. For consistency, we will use Lavon.


author: ROBERTS, J.,

text:
    Eric De’Juan JONES, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-00288-COA.
    Court of Appeals of Mississippi.
    March 1, 2011.
    Rehearing Denied May 31, 2011.
    Certiorari Dismissed Sept. 22, 2011.

      Eric D. Jones, Appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., ROBERTS and CARLTON, JJ. •
   ROBERTS, J.,

for the Court:

¶ 1. In 2003, Eric Jones pled guilty to the possession of 6.2 grams of cocaine. After he was sentenced and his post-release supervision (PRS) revoked, Jones filed a motion for post-conviction relief (PCR) in the Lawrence County Circuit Court. The circuit court summarily dismissed Jones’s PCR motion. Aggrieved, Jones appeals. Finding no error, we affirm the circuit court’s summary dismissal of Jones’s PCR motion.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 25, 2003, Eric Jones entered a guilty plea in the Lawrence County Circuit Court to the charge of one count of possession of a controlled substance (6.2 grams of cocaine). He was sentenced to sixteen years in the custody of the Mississippi Department of Corrections (MDOC). He was to serve six years of his sentence in the custody of the MDOC with ten years suspended conditioned upon his successful completion of five years of PRS. The guilty-plea transcript reflects at least two occasions the circuit judge informed Jones that he would be placed on PRS after his initial release from custody.

¶ 3. While serving the initial portion of his sentence in the custody of the MDOC, Jones filed a PCR motion with the circuit court asserting that his guilty-plea was not voluntary and that he had received ineffective assistance of counsel. Jones v. State, 904 So.2d 1107, 1108 (¶2) (Miss.Ct.App.2004). The circuit court denied his PCR motion on December 9, 2003. Id. The circuit court’s denial was affirmed by this Court on October 12, 2004. Id. at 1109 (¶9).

¶ 4. On April 4, 2008, after discharge by the MDOC on his initial six-year term, Jones’s PRS was revoked for his failure to report to his field officer for several months in 2007. He also tested positive for marijuana in May 2007 and refused to submit to a urine test in July 2007. Jones’s suspended sentence was revoked, and he was ordered to return to the custody of the MDOC to complete the ten-year suspended sentence originally imposed at his sentencing hearing. Jones then filed a PCR motion with the circuit court, attacking the validity of his revocation. The circuit court summarily dismissed Jones’s PCR motion on May 4, 2009. It is from this dismissal that Jones appeals.

¶ 5. In his brief, Jones raises the following issues:

I. Whether the circuit court erred in summarily dismissing Jones’s PCR motion.
II. Whether the circuit judge erred by not orally informing Jones of the terms and conditions upon which his suspended sentence was contingent when he was sentenced.
III. Whether Jones was denied due process and equal protection by having the revocation officer fail to:
1. Individually screen Jones for the appointment of counsel, state the reasons for denial of the appointment, or appoint counsel solely based on Jones’s indigency.
2. Allow Jones to present witnesses and evidence at the revocation hearing.

¶ 6. Finding no error, we affirm the circuit court’s summary dismissal of Jones’s PCR motion.

STANDARD OF REVIEW

¶ 7. The circuit court may summarily dismiss a PCR motion “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Supp.2010). In reviewing a circuit court’s decision to dismiss a PCR motion, we will not disturb the decision unless the circuit court’s factual findings are clearly erroneous. Phillips v. State, 25 So.3d 404, 406 (¶ 4) (Miss.Ct.App.2010). Any review of issues of law require a de novo review. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

ANALYSIS

I. Procedural Bars

¶ 8. The circuit court judge found that Jones was not entitled to file a PCR motion because he was procedurally barred from doing so pursuant to the three-year time bar and the successive-writ bar found in Mississippi Code Annotated sections 99 — 39—5(2)(b) (Supp.2010) and 99-39-23 (Supp.2010).

¶ 9. Mississippi Code Annotated section 99-39-5(2)(b) provides the three-year statute of limitations on PCR motions. It reads, in pertinent part, as follows:

(2) A motion for relief under this article shall be made within three (3) years after the time in which the petitioner’s direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction. Excepted from this three-year statute of limitations are those cases in which the petitioner can demonstrate either:
(b) Likewise excepted are those cases in which the petitioner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked ....

Id. (emphasis added).

¶ 10. Also at issue is whether Jones’s PCR motion is barred pursuant to the successive-writ bar found in Mississippi Code Annotated section 99-39-23(6). This statute reads, in pertinent part, as follows:

[A]ny order dismissing the petitioner’s motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article.... Likewise excepted are those cases in which the petitioner claims that his sentence has expired or his probation, parole, or conditional release has been unlawfully revoked.

Id. (emphasis added).

¶ 11. It is apparent that Jones’s main contention is that his sentence had expired at the time his PRS was revoked; thus, he should not be procedurally barred from seeking relief through a PCR motion. Both statutes provide an exception to the procedural bar if the petitioner’s sentence has expired. To support his contention that his sentence had expired, Jones asserts that the sentence orally imposed at his sentencing hearing was for only six years and not the sixteen years found in the written sentencing order. He argues that when an oral pronouncement conflicts with a written pronouncement, the oral pronouncement should prevail. According to Jones, his sentence expired after he served his six years in the custody of the MDOC, and he is not to serve the ten-year suspended sentenced imposed in the written sentencing order. We disagree.

¶ 12. Both the sentencing order and the transcript of the guilty-plea hearing are in the record for our review, and we find that they are not in conflict. Both contain the language that Jones was sentenced to sixteen years in the custody of the MDOC with six years to serve and ten years suspended after successful completion of a period of PRS. The only difference between the sentencing order and the plea-hearing transcript is that the sentencing order gives Jones five years of PRS, but the plea-hearing transcript says ten years. It is well-settled law in Mississippi that a written order prevails over a conflicting oral pronouncement. Boutwell v. State, 847 So.2d 294, 296 (¶8) (Miss.Ct. App.2003).

¶ 13. We hold that the circuit judge erred when he determined that Jones’s PCR motion was barred by the three-year time and successive-writ bars. Clearly it was not. Jones claimed that his sentence had expired and that his conditional release was unlawfully revoked; thus, his claim is an exception to the time and successive writ bars.

II. Suspended-Sentence Conditions

¶ 14. Jones’s second issue relating to the alleged unlawful revocation of his suspended sentence was that the circuit judge did not orally inform him of the conditions and terms of his suspended sentence before that suspended sentenced could be revoked for a violation of those conditions and terms. Jones relies on a Mississippi Supreme Court case, Artis v. State, 643 So.2d 533, 538 (Miss.1994), to support his contention that the circuit judge was required to inform him orally of the terms and conditions of his suspended sentence. However, his reliance on this case is factually amiss. In Artis, the circuit court suspended a portion of Alfonso Artis’s sentence, but it “made no mention, orally or in writing, of terms and conditions of the suspended sentences, and then later revoked his suspended sentence ... for the violation of terms and conditions of his suspended sentence.” Id. at 537 (emphasis added). To satisfy due process, the defendant must “at least” be orally informed of the terms and conditions of his suspended sentence, but it is not a requirement that the defendant be “orally in-formfed] ... when such information has been recorded in written form.” MeClinton v. State, 799 So.2d 123, 126 (¶ 6) (Miss. Ct.App.2001). In the case before us, Jones was informed in writing of the terms and conditions of his suspended sentence. Because Jones was informed in writing of his terms and conditions, the holding in Artis does not apply to this case.

¶ 15. We find this issue is without merit.

III. Due Process

¶ 16. Jones next alleges that he was denied due process at his revocation hearing, thereby making the revocation of his suspended sentence unlawful. The United States Supreme Court has set out the minimum requirements of due process at revocation hearings. These requirements are:

(a) written notice of the claimed violations of (probation or) parole; (b) disclosure to the (probationer or) parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or [lawyers]; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking (probation or) parole.

Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)).

¶ 17. Mississippi has adopted these minimum requirements and applies them in revocation hearings. Riely v. State, 562 So.2d 1206, 1210-11 (Miss.1990).

¶ 18. Jones asserts two main reasons to support his contention that he was denied due process at his revocation hearing. He first argues that revoking his suspended sentence was unconstitutional because the circuit court failed to appoint him an attorney at his revocation hearing. A review of the minimum constitutional requirements outlined above indicate that an indigent’s right to an appointed attorney at every revocation hearing is not a minimum requirement for due process. First outlined by the Supreme Court in Gagnon, 411 U.S. at 790, 93 S.Ct. 1756, the Mississippi Supreme Court has held that there is no per se right to an appointed attorney at revocation hearings, but the appointment of an attorney is to be made on a case-by-case basis. Riely, 562 So.2d at 1209 (quoting Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 26, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)). The United States Supreme Court further elaborated that counsel should be appointed in cases where the indigent petitioner requests an appointed attorney, and he asserts:

(i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present.

Gagnon, 411 U.S. at 790, 98 S.Ct. 1756.

¶ 19. This Court in Pruitt v. State, 958 So.2d 302, 306 (¶ 10) (Miss.Ct.App.2007), applied the principles outlined above and determined that the issues presented at the revocation hearing were not too difficult or complex to warrant the appointment of counsel. We stated:

[Henry Lee] Pruitt’s sentence was suspended[,] and he was placed on post-release supervision in lieu of his having to fully serve out his term, with the condition that he not violate the terms set forth by the circuit court. During his post-release supervision, Pruitt was convicted of drug-related charges in the federal system. This federal conviction was in violation of the conditions of his post-release supervision. An appointment of counsel to Pruitt for his revocation hearing was not warranted or required by law.

Id.

¶ 20. In the case before us, the issues presented at the revocation hearing were whether Jones had failed a urine test for drugs, refused to take another drug test, and failed to report to his supervising officer (absconded supervision) for several months. In his order summarily dismissing Jones’s PCR motion, the circuit court judge found that these issues were not complex or difficult enough to warrant appointment of counsel. We agree.

¶ 21. Jones next asserts that he was denied due process because he was not permitted to present witnesses and evidence or cross-examine adverse witnesses. Although there is not a transcript of the revocation hearing before us for review, the circuit judge, through his order summarily dismissing Jones’s PCR motion, referred to the transcript of the revocation hearing and found that Jones was provided the opportunity to present evidence and confront adverse witnesses. According to the circuit judge’s order, after testimony from supervising field officers, Jones proceeded to “instantly slam his microphone down, pick up the 25-35 lbs. microphone stand in front of him and [throw] it approximately 30 feet across the courtroom creating a large hole in the courtroom wall. This violent outburst by the Petitioner created turbulence in the courtroom among the courtroom spectators, and among the numerous of [sic] inmates who were in the courtroom [on] that date.” Jones had the opportunity to present evidence and cross-examine witnesses, but he did not make proper use of the time he was given. There is no reason to believe that the outcome would have differed had Jones cross-examined the officers, testified in his own defense, or called any witnesses himself.

¶ 22. We find this issue without merit.

¶ 23. THE JUDGMENT OF THE LAWRENCE COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAWRENCE COUNTY.

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

      . For judicial economy, we have consolidated the issues presented in the brief.


author: LEE, C.J.,

text:
    Christopher Lashon JOHNSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CA-01776-COA.
    Court of Appeals of Mississippi.
    March 29, 2011.
    Rehearing Denied June 28, 2011.
    Certiorari Denied Sept. 22, 2011.
    Imhotep Alkebu-Lan, attorney for appellant.
    Office of the Attorney General by Scott Stuart, Jeffrey A. Klingfuss, Jackson, attorneys for appellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   LEE, C.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Christopher Lashon Johnson was found guilty of depraved-heart murder by a jury in the Monroe County Circuit Court. Johnson was sentenced to life in the custody of the Mississippi Department of Corrections. This Court affirmed Johnson’s conviction in Johnson v. State, 950 So.2d 217 (Miss.Ct.App.2006).

¶ 2. After receiving permission from the Mississippi Supreme Court, Johnson filed a motion for post-conviction relief in the Monroe County Circuit Court. The trial judge subsequently entered an order requiring the State to file a written response to Johnson’s motion within sixty days. Johnson then filed a motion for the judge to recuse, arguing that the trial judge’s impartiality was questionable. The trial judge denied this motion.

¶ 3. After an evidentiary hearing on Johnson’s motion for post-conviction relief, the trial judge denied Johnson’s request for relief. Johnson now appeals, asserting that the trial judge erred in denying his motion for post-conviction relief and that the trial judge should have granted his recusal motion. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 4. A trial judge’s denial of a motion for post-conviction relief will not be reversed absent a finding that the trial judge’s decision to deny the motion was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

DISCUSSION

I. MOTION FOR POST-CONVICTION RELIEF

¶ 5. In his first issue on appeal, Johnson contends that a new trial is warranted since several eyewitnesses recanted their testimonies after trial. Johnson argues that if the jury was allowed to hear the recanted testimonies, then the jury would not have convicted him. During the evidentiary hearing, the trial judge heard three of the six original eyewitnesses testify. In denying Johnson’s motion for post-conviction relief, the trial judge found that “rather than outright recantation of previous testimony, the witnesses who have appeared before this court have in some way expressed some doubt, but none of them has, in my opinion, said out and out that ... their [trial] testimony was incorrect.” The trial judge then reiterated that there was considerable testimony at trial that Johnson did commit the crime. It is clear that these three witnesses expressed doubt about their original trial testimony, but none stated that the trial testimony was incorrect.

¶ 6. “A determination of whether or not a new trial should be granted on recanted testimony is reviewed under an abuse of discretion standard.” Farrish v. State, 920 So.2d 1066, 1068 (¶ 9) (Miss.Ct. App.2006). At the hearing on a motion for post-conviction relief, the trial judge sits as the trier of fact and resolves any credibility issues. Henderson v. State, 769 So.2d 210, 213 (¶ 8) (Miss.Ct.App.2000). The trial judge was able to assess the credibility of the three eyewitnesses who testified at the hearing. Upon our review, we cannot find that the trial judge abused his discretion in denying Johnson’s motion for post-conviction relief. This issue is without merit.

II. MOTION TO RECUSE

117. In his other issue, Johnson argues that the trial judge erred in denying his motion to recuse. Johnson argues that a reasonable person would harbor doubts about the trial judge’s impartiality. “When a judge is not disqualified under the constitutional or statutory provisions[,] the decision is left up to each individual judge and is subject to review only in a case of manifest abuse of discretion.” Jones v. State, 841 So.2d 115, 135 (¶ 60) (Miss.2008).

¶ 8. Johnson focuses on the wording in the trial judge’s order that required the State to file an answer to Johnson’s motion for post-conviction relief. The specific wording is as follows: “The Mississippi Supreme Court has granted [Johnson] leave to proceed with this [motion.] As such, this Court will not summarily dismiss the Motion and, pursuant to Mississippi] Code Annotated] [section] 99-39-11 [ (Rev.2007) ], the State must file an answer before further proceedings may be had.” Johnson contends that the trial judge showed his partiality by stating that he would have “summarily dismissed” Johnson’s petition but for the order of the supreme court.

¶ 9. When a case is affirmed on direct appeal, Mississippi Code Annotated section 99-39-7 (Rev.2007) mandates that permission be obtained from the supreme court to seek post-conviction relief from the trial court. “This procedure is not merely advisory, but jurisdictional.” Doss v. State, 757 So.2d 1016, 1017 (¶ 6) (Miss. Ct.App.2000). Thus, if Johnson had not received permission from the supreme court to seek post-conviction relief in the trial court, the trial judge would have had no choice but to dismiss Johnson’s motion. We fail to see how the trial judge’s wording in the order reflects any prejudice toward Johnson. This issue is without merit.

¶10. THE JUDGMENT OF THE MONROE COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


author: BARNES, J.,

text:
    PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, Appellant v. Susan McDONNELL, Appellee.
    No. 2010-SA-00483-COA.
    Court of Appeals of Mississippi.
    March 29, 2011.
    Rehearing Denied June 28, 2011.
    Certiorari Denied Sept. 22, 2011.

      Mary Margaret Bowers, Katherine Lester Trundt, attorneys for appellant.
    Quentin P. McColgin, attorney for appel-lee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   BARNES, J.,

for the Court:

¶ 1. The Public Employees’ Retirement System of Mississippi (PERS) denied non-duty related disability benefits to Susan McDonnell, who appealed the denial to the Hinds County Circuit Court. The circuit court reversed the PERS decision, and PERS now appeals. Finding that the denial of disability benefits by PERS was not supported by substantial evidence and was, thus, arbitrary and capricious, we affirm the circuit court’s judgment.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. McDonnell was a computer discovery teacher employed by the Biloxi Public School District in Biloxi, Mississippi. Her duties were to monitor students’ computer skills during seven periods of classes, and the job required her to be continuously on her feet walking around the classroom. In December 2006, she sought medical treatment from Dr. Douglas Leavengood, a board-certified internist with a sub-speciality in allergy and immunology, who diagnosed her with bursitis and tendonitis. On January 27, 2007, McDonnell saw Dr. Terry Smith, who had performed her back surgery. She told Dr. Smith that she was not having much pain and not taking any medication. However, she later started experiencing swelling in her right ankle, forcing her to limp around her classroom. She consulted an orthopedic specialist, Dr. Theodore Jordan, on March 16, 2007. Her x-rays showed “moderated degenerative” changes in her right ankle. Dr. Jordan completed a physician’s form 7, which stated that McDonnell had moderate degenerative joint disease in her ankle and bursitis in her hip and that he expected her condition to deteriorate.

¶ 3. Two weeks later, she saw another doctor, Dr. Dudley Burwell, a board-certified orthopedist, with the same complaint. She claimed that Dr. Jordan’s medical treatment was not helping her pain. Dr. Burwell diagnosed McDonnell with degenerative joint disease of the right ankle with tendonitis and treated the ankle with a cortisone shot, which McDonnell reported gave her relief from pain. However, she returned to Dr. Burwell in May 2007 as she was experiencing more swelling in her ankle. On June 4, 2007, McDonnell visited Dr. Leavengood complaining of pain in her left foot. After his examination, Dr. Leav-engood filled out a physician’s form 7 stating that McDonnell was not able to stand for eighty-five percent of the day (as required in her job description) and that she needed to sit frequently. McDonnell visited Dr. Burwell again on October 3, 2007, and received another cortisone injection. Dr. Burwell also completed a physician’s form 7, stating that McDonnell had degenerative joint disease in both ankles, pain, and swelling. He recommended that she limit her walking, standing, and climbing. She received another cortisone injection on December 19, 2007. This was followed by additional injections — one on January 30, 2008, and one on March 12, 2008. However, McDonnell later testified that the cortisone injections were becoming increasingly less effective in treating her ongoing pain.

¶ 4. During this period, after twenty-nine years of credited service, McDonnell retired on August 31, 2007, and applied for non-duty related disability on October 12, 2007, due to her ankle pain and swelling. In response to a request by PERS, McDonnell underwent an independent medical evaluation by Dr. Phillip J. Blount, an orthopedic specialist, on January 28, 2008. McDonnell told Dr. Blount that: she wears special shoes to alleviate her foot discomfort; she intermittently uses a cane; and she uses a motorized scooter when shopping. She also said that she experienced lower-back pain when standing for long periods. Dr. Blount noted that McDonnell had recently lost twenty-five pounds and was performing some pool therapy at home. In his assessment, Dr. Blount stated that McDonnell had bilateral osteoarthritis in her ankles. He submitted that continuing to work as a teacher posed no additional risk to her condition. He briefly addressed the issue of McDonnell’s pain, noting: “Tolerance is in question and it would be her choice if she wanted to stop teaching.” Dr. Leavengood wrote a letter, in response to Dr. Blount’s evaluation, agreeing that continuing to work would not worsen McDonnell’s condition; however, he opined that her pain would hinder her from performing her duties.

¶ 5. The PERS Medical Review Board denied McDonnell’s application for non-duty related disability benefits on March 6, 2008, finding “insufficient objective evidence to support the claim.” McDonnell appealed, and a hearing was held before the PERS Disability Appeals Committee (the Committee) on June 2, 2008. McDonnell was present at the hearing and represented by counsel. The Committee, which was comprised of two physicians and a chief hearing officer who was a nurse/attorney, concluded in its findings that there was no evidence that McDonnell’s condition was so severe as to consider her disabled and unable to perform her duties. The Committee admitted that it had “no reason to doubt that Mrs. McDonnell has ankle pain” and noted that the cortisone injections she receives “probably interferes with her diabetes.” However, it found Dr. Blount’s independent medical evaluation— that McDonnell was “at no risk for continuing her job with her description outline” — “more persuasive” than the differing opinions from McDonnell’s treating physicians. The Committee failed to mention that Dr. Blount observed that “[t]oler-anee is in question[.]” The Committee did note that McDonnell “remains well above her normal weight” and “has not done enough to try and accommodate her physical problems at work.” Specifically, it found that McDonnell “had not considered using a [motorized] scooter at work” and that she had the option of linking “the student’s computer monitors and keyboards” to her desk computer in order to remain in the classroom if that is what “[she] really desired to do.”

¶ 6. On September 11, 2008, McDonnell appealed PERS’s denial of her disability benefits to the Hinds County Circuit Court. Finding that McDonnell’s condition was disabling and the direct cause of her withdrawal from state employment, the circuit court reversed PERS’s ruling and granted McDonnell disability benefits. The circuit court held “that the PERS decision was not supported by substantial evidence, and was arbitrary and capricious.” PERS now appeals the circuit court’s reversal of its ruling. We affirm the circuit court’s judgment.

STANDARD OF REVIEW

¶ 7. The standard of review of an administrative agency’s finding and decisions is limited. Pub. Employees' Ret. Sys. v. Howard, 905 So.2d 1279, 1284 (¶ 13) (Miss.2005) (citing Pub. Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 425 (¶ 11) (Miss.2000)). Under Rule 5.03 of the Uniform Rules of Circuit and County Court, we will not disturb an agency’s decision unless it: “(1) is not supported by substantial evidence, (2) is arbitrary or capricious, (3) is beyond the scope or power granted to the agency, or (4) violates one’s constitutional rights.” Pub. Employees’ Ret. Sys. v. Dishmon, 17 So.3d 87, 91 (¶ 18) (Miss.2009) (citing Marquez, 774 So.2d at 425 (¶ 11)). However, “we may not substitute our judgment for that of PERS, or re[-]weigh the evidence before the agency.” Pub. Employees’ Ret. Sys. v. Kellum, 878 So.2d 1044, 1047 (¶6) (Miss.Ct.App. 2004) (citing Pub. Employees’ Ret. Sys. v. Ross, 829 So.2d 1238, 1240 (¶ 11) (Miss. 2002)). If the agency’s decision is found not to be based on substantial evidence, then it is considered “arbitrary and capricious.” Wright v. Pub. Employees’ Ret. Sys., 24 So.3d 382, 386 (¶ 17) (Miss.Ct.App.2009) (citing Pub. Employees’ Ret. Sys. v. Allen, 834 So.2d 50, 53 (¶ 10) (Miss.Ct.App.2002)).

I. Whether the circuit court erred in finding that the denial of disability benefits to McDonnell was not supported by substantial evidence and was arbitrary and capricious.

¶ 8. Mississippi Code Annotated section 25-11-113(1)(a) (Rev.2006) states, in pertinent part, that:

For the purposes of disability determination, the medical board shall apply the following definition of disability: the inability to perform the usual duties of employment or the incapacity to perform such lesser duties, if any, as the employer, in its discretion, may assign without material reduction in compensation, or the incapacity to perform the duties of any employment covered by the Public Employees’ Retirement System (Section 25-11-101 et seq.) that is actually offered and is within the same general territorial work area, without material reduction in compensation.

PERS claims that McDonnell’s pain does not interfere with her duties; thus, she is not disabled within the meaning of the statute. McDonnell contends that PERS only considered objective medical evidence, 1.e., Dr. Blount’s report, in rendering its decision and that it excluded any medical evidence related to McDonnell’s pain.

¶ 9. McDonnell’s official job description states that her job requires “5% sitting, 10% walking, and 85% standing.” The PERS “Employer’s Certification of Job Requirements” also noted that the job required continuous walking and standing. One of McDonnell’s colleagues submitted a statement, claiming that McDonnell’s condition “became progressively worse over time,” and “she was in continual pain and her mobility around school and in the classroom was interfering with her ability to give her best to her students.” Another colleague commented that McDonnell was forced sometimes to elevate her ankle at her desk and stated that McDonnell “tried her best to attempt the endeavor of giving the students’ individualized instructions but it got difficult because of her ankle.” In the PERS form that McDonnell filled out, she stated that she had missed thirty-four days in the last twelve months due to her “disability.”

¶ 10. PERS contends on appeal that “[wjhile it is true that pain is a subjective condition, PERS, has recognized that there can be, and must be, objective medical evidence; evidence of a diagnosis based on objective medical science that adequately supports the subjective complaint of pain, and convinces the Board that the pain is disabling.” Thus, PERS contends that McDonnell’s “subjective complaint of pain” was not supported by “objective medical evidence” that her pain is disabling. We find nothing in the record to support this conclusion. Objective medical evidence recognizing McDonnell’s pain was well-documented in the record. Both Dr. Leavengood and Dr. Burwell diagnosed McDonnell with moderate to severe degenerative joint disease in her ankles and recommended that she limit her standing and walking. Dr. Burwell was also providing frequent cortisone treatment for McDonnell’s pain. Even Dr. Blount, who was told to report only “objective medical evidence,” observed in his report that “[t]olerance is in question.” Yet, PERS does not acknowledge this statement by Dr. Blount. Although the Committee did state that it “has no reason to doubt that Ms. McDonnell has ankle pain[,]” it contended that this pain could be controlled with injections. However, the record reflects that the frequency of cortisone injections was increasing in order to alleviate McDonnell’s pain, and the Committee admitted in its analysis that this could be detrimental to McDonnell’s diabetes. Furthermore, the Committee, while recognizing the “differing opinions regarding the severity of disease in Ms. McDonnell’s ankles,” refutes these other medical opinions from McDonnell’s treating physicians by relying merely on its own reading of McDonnell’s x-rays, asserting that her disease is only mild to moderate.

¶ 11. Substantial evidence is “something more than a ‘mere scintilla’ or suspicion”; rather, the evidence must “provide[ ] an adequate basis of fact from which the fact in issue can be reasonably inferred.” Henley v. Pub. Employees’ Ret. Sys. of Miss., 26 So.3d 1108, 1110 (¶13) (Miss.Ct.App.2010) (citations omitted). Substantial evidence that supports an agency’s decision “is, in fact, the absence of credible evidence presented on behalf of the party having the burden of proof on the issue that compels the denial of relief.” Id. (quoting Pub. Employees’ Ret. Sys. v. Cobb, 839 So.2d 605, 609 (¶ 15) (Miss.Ct. App.2003)). “The agency, not the reviewing court, acts as the finder of fact.” Wright, 24 So.3d at 387 (¶24) (quoting Case v. Pub. Employees’ Ret. Sys., 973 So.2d 301, 311 (¶ 23) (Miss.Ct.App.2008)). “Fact-finding includes evaluating the credibility of witnesses, and PERS has the sole responsibility for determining which medical evaluations to rely upon.” Id. (citing Cobb, 839 So.2d at 609 (¶ 12)). This Court has acknowledged that “PERS has the discretion to determine which physicians’ assessments to consider and how much weight should be given to each assessment.” Id. at 388-89 (¶ 33) (quoting Brakefield v. Pub. Employees’ Ret. Sys., 940 So.2d 945, 948 (¶12) (Miss.Ct.App.2006)). “However, the supreme court has previously held that PERS’s opinion is not conclusive, and PERS cannot choose to ignore uncontroverted evidence provided by treating physicians.” Id. at 390 (¶ 39) (citing Pub. Employees’ Ret. Sys. v. Dearman, 846 So.2d 1014, 1018 (¶ 11) (Miss.2003)).

¶ 12. In its findings, the Committee contended that McDonnell’s “disease [was] not severe,” a finding that it admitted was contrary to the majority of the medical opinions presented. Furthermore, the Committee strongly relied on non-medical conclusions in supporting its denial, such as the fact that McDonnell did not complete her physical therapy relating to an earlier condition, and her failure to “help herself’ by controlling her weight and requesting accommodation. It claimed that McDonnell did not consider using an motorized scooter to move around her classroom to monitor students, nor did she utilize the option of having the students’ computers linked to hers for monitoring purposes.

¶ 13. In a similar case involving a denial of disability benefits, Stevison v. Public Employees’ Retirement System, 966 So.2d 874, 880-82 (¶¶ 19, 25) (Miss.Ct.App.2007), this Court found that PERS’s denial of disability benefits was not supported by substantial evidence as “no medical professional expressed any doubts about the legitimacy of [Sheryl] Stevison’s complaints of pain,” and “no record evidence tended to show that Stevison could perform the usual duties of her employment.” Here, there is objective medical evidence from several doctors that McDonnell has degenerative joint disease in her ankles. Although Dr. Blount stated that McDonnell was “at no risk for continuing her job,” he also noted that “[t]olerance is in question.” Responding to Dr. Blount’s evaluation, Dr. Leavengood expressed:

If disability is predicated on the risk for progressive damage to her osteoarthritic ankles, then I must defer to Dr. Blount’s expertise. I would argue, on the other hand, that pain from, obviously diseased joints can reach a level which prevents adequate performance of her teaching duties. I have followed Mrs. McDonnell for several years for a variety of medical problems[,] including the severe ankle pain which has markedly contracted her physical activities. As I have stated previously[,] it is my medical opinion that Mrs. McDonnell’s pain level has reached the point which reasonably precludes the adequate performance of her teaching duties.

(Emphasis added). Dr. Leavengood is referring to his previous medical opinion that McDonnell does not have the ability to stand for eighty-five percent of her work day as reflected in the physician’s form 7 dated November 11, 2007. Moreover, Dr. Burwell, an orthopedic specialist who treated McDonnell for her ankle problems, noted that McDonnell’s limited ability to walk, stand or climb was a “permanent partial disability,” and her condition was “degenerative.” Thus, two physicians other than Dr. Blount — an internist and an orthopedic specialist — submitted that McDonnell had “permanent partial impairments” that limited the time that she would stand or walk during the day. As the supreme court has aptly noted: “If medical diagnoses by licensed physicians are to be labeled ‘subjective’ evidence of medical ailments, it is unclear what PERS would consider to be ‘objective’ evidence.” Marquez, 774 So.2d at 427 (¶ 22).

¶ 14. Regarding the Committee’s denial of benefits based on the fact that McDonnell did not request any accommodation from her employer for her medical problem, we find there was undisputed testimony that the accommodations requested by the Committee were not adequate for the performance of the job. At the hearing, the Committee asked whether McDonnell could monitor the students from her desk. While she admitted that she could do so, McDonnell maintained that she would not be effectively performing her duties, testifying as follows:

Q. Could you sit when you were teaching?
A. You’re not supposed to.
Q. Could you effectively do it and sit?
A. No.

There is nothing in the record to contradict McDonnell’s denial. We also find the Committee’s statement, that McDonnell “had not considered using a scooter at work,” not supported by McDonnell’s testimony. When asked whether she could use a motorized scooter to get around the classroom, McDonnell declared that she had tried this method; however, she also thought that it was not effective. She explained that the scooter made it difficult to get around the students, and because she was at a lower height, she was unable adequately to observe their keyboard skills. There is also nothing in the record to support the Committee’s conclusion that linking the students’ computers to McDonnell’s desk would be sufficient in monitoring the students’ keyboard skills. Furthermore, McDonnell also stated in her disability benefits application that, even when sitting at her desk, her ankles hurt when not elevated. Thus, based on our review of the record, we find that any reliance on this reasoning for the denial of benefits was not only speculative, but arbitrary and capricious.

¶ 15. The determination of disability benefits is not “whether the claimant has presented enough evidence to prove he or she is disabled, ‘but whether PERS has presented enough evidence to support its finding that the claimant is not disabled.’ ” Dishmon, 17 So.3d at 92 (¶ 19) (citing Pub. Employees’ Ret. Sys. v. Henderson, 867 So.2d 262, 264 (¶5) (Miss.Ct.App.2003)). We find that PERS’s denial of non-duty related disability benefits to McDonnell was not supported by substantial evidence and affirm the circuit court’s reversal of that decision.

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

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

      . We will only address the medical evidence which pertains to McDonnell's problems with her ankles, as this was the sole medical ailment on which her application for disability was based. We do note that McDonnell had been previously diagnosed with bursitis and mild degenerative joint disease in her knee. She also had two prior back surgeries — one several years ago and one in November 2006. Although the PERS Disability Appeals Committee did briefly note non-compliance with rehabilitation, McDonnell's rehabilitation was begun in 2005 to assist with her lumbar sten-osis (back surgery) and is, thus, not relevant to the issue here.

      . In the PERS letter sent to Dr. Blount regarding McDonnell's referral for an independent medical evaluation, it stated:
      The determination of disability must be based on objective medical evidence .... [I]f, on the basis of objective medical evidence, a medical condition is documented which is of such severity, chronicity, and/or is non-responsive to adequate medical treatment resulting in functional limitations and restrictions preventing performance of essential job functions, the applicant's claim is approved.
      (Emphasis added).