author: KING, C.J.,

text:
    Michael K. JOHNSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KP-00048-COA.
    Court of Appeals of Mississippi.
    June 8, 2010.
    Rehearing Denied Sept. 14, 2010.
    Certiorari Denied Jan. 6, 2011.

      Michael K. Johnson, appellant, pro se.
    Office of the Attorney General by John R. Henry, Jr., attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   KING, C.J.,

for the Court:

¶ 1. Michael K. Johnson was convicted in the Circuit Court of Coahoma County of Count I, attempted aggravated assault, and Count II, possession of a firearm by a convicted felon. Johnson was sentenced as a habitual offender to life in prison for attempted aggravated assault and life in prison for possession of a firearm by a convicted felon. The sentences were ordered to run concurrently in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, Johnson appeals, raising the following issues:

I. Whether his indictment was defective;
II. Whether he received ineffective assistance of counsel;
III. Whether the trial court erred by denying his motion for a directed verdict;
IV. Whether the trial court erred by denying his motion for a new trial; and
V. Whether there was cumulative error.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On March 20, 2008, Johnson had an altercation with Russell Sanders, a coworker, while on the job. Sanders testified that Johnson wanted to talk to him about another employee, and Sanders told Johnson that he did not want to hear about it. This progressed into a verbal altercation. Sanders testified that he walked away from Johnson, but Johnson followed him. When Sanders turned around, Johnson flinched toward him. In response, Sanders grabbed Johnson, causing Johnson to drop a screwdriver. Sanders testified that Johnson retrieved the screwdriver from the ground and then walked away. Sanders thought that the altercation was over.

¶ 3. After work, Sanders and three other co-workers — Rodrick Rich, Arthur Ford, and Jerry Jackson — with whom he carpooled, got into the car to go home. Sanders, Rich, and Ford testified that they saw Johnson standing across from their car in the parking lot. They all saw Johnson raise a gun, point it toward their car, and fire the gun.

¶ 4. The bullet caused the driver’s side window to shatter. Rich and Ford testified that they jumped out of the vehicle. However, Sanders, who was driving, remained in the car, and drove off after Johnson fired the gun. After realizing that his co-workers were no longer in the car, Sanders returned to the parking lot. Rich, Ford, and Sanders testified that Johnson ran away from the scene toward the railroad tracks.

¶ 5. On May 27, 2008, Johnson was indicted as a habitual offender for Count I, attempted aggravated assault, and Count II, possession of a firearm by a convicted felon. In regard to the charge of possession of a firearm by a convicted felon, the defense stipulated that Johnson had been previously convicted of aggravated assault in August 1992. Johnson had also been previously convicted of manslaughter. However, the parties agreed not to mention this prior conviction to the jury in fear that it would prejudice Johnson’s case.

¶ 6. During the trial, Officer Charles Sledge of the Clarksdale Police Department, who was dispatched to the scene, testified that he found a single gunshot to the driver’s side door of the car. He found the bullet lodged in the door seal, and he found a nine-millimeter shell casing near the vehicle. Officer Sledge testified that the impact from the bullet caused the driver’s side window to shatter. Sergeant Robbie Linley, the investigating officer, testified that he took the bullet and shell casing to the crime lab for analysis. Sergeant Linley testified that no latent prints were found on the objects, and the police did not retrieve the gun from the crime scene. Sergeant Linley also stated that besides Sanders and the occupants of his vehicle, no other witnesses volunteered to give a statement to the police.

¶ 7. On November 7, 2008, a jury in the Coahoma County Circuit Court found Johnson guilty of attempted aggravated assault and possession of a firearm by a convicted felon. Johnson was sentenced as a habitual offender to serve a life sentence on each count, with the sentences to run concurrently in the custody of the MDOC. Thereafter, Johnson filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied the motion. Aggrieved, Johnson timely filed his notice of appeal.

ANALYSIS

I. Defective Indictment

¶ 8. Whether an indictment is defective is an issue of law, which this Court reviews de novo. See Steen v. State, 873 So.2d 155, 161 (¶ 21) (Miss.Ct.App.2004).

A. Dates of Sentencing

¶ 9. First, Johnson ai'gues that, in the habitual portion of his indictment, the State failed to set forth the dates of sentencing for his prior convictions. Based on this alleged failure, Johnson maintains that the indictment was defective and insufficient to charge him as a habitual offender.

¶ 10. We must note that Johnson failed to raise this argument before the trial court. Thus, it is procedurally barred from review. See Franklin v. State, 766 So.2d 16, 18 (¶7) (Miss.Ct.App.2000) (finding that the appellant’s failure to raise an objection regarding his indictment before the trial court barred the issue from appellate review). Despite this procedural bar, we find Johnson’s argument is without merit.

¶ 11. Uniform Circuit and County Court Rule 11.03(1) provides, in pertinent part, that:

In cases involving enhanced punishments for subsequent offenses under state statutes:
1. The indictment must include both the principal charge and a charge of previous convictions. The indictment must allege with particularity the nature or description of the offense constituting the previous convictions, the state or federal jurisdiction of any previous conviction, and the date of the judgment.

Johnson’s indictment listed the principal offenses — Count I, attempted aggravated assault, and Count II, possession of a firearm by a convicted felon. The indictment also listed the previous convictions, a description of those convictions, the jurisdiction of those convictions, and the date of each judgment of conviction. Specifically, in cause number 6958, Johnson was convicted in the Circuit Court of Coahoma County on February 19, 1986, of manslaughter and sentenced to twenty years. In cause number 7941, Johnson was convicted in the Circuit Court of Coahoma County on August 12, 1992, of aggravated assault and sentenced to twenty years.

¶ 12. Based on the foregoing, the indictment was in compliance with Rule 11.03(1) and sufficiently charged him as a habitual offender. There is no requirement that the indictment include the dates of sentencing. Thus, we find that his argument is without merit.

B. Charged Under Two Habitual Statutes

¶ 13. Next, Johnson argues that the indictment erroneously charged him as a habitual offender under two different statutes: Mississippi Code Annotated section 99-19-83 (Rev. 2007) and Mississippi Code Annotated section 99-19-81 (Rev. 2007). Johnson contends that the State should have specified which statute applied. The State argues that Johnson failed to raise this argument below and that the indictment was not ambiguous.

¶ 14. Johnson did not raise this argument before the trial court. Thus, it is procedurally barred from review. See Franklin, 766 So.2d at 18 (¶ 7). Despite this procedural bar, we find that Johnson’s argument is without merit.

¶ 15. Section 99-19-81 provides that a person convicted of a felony shall be sentenced to the maximum term of imprisonment for that crime if: (1) he has previously been convicted of two felonies, and (2) he has served separate sentences of one year or more on each felony conviction. Miss.Code Ann. § 99-19-81. In contrast, section 99-19-83 requires the trial court to sentence a repeat offender to life in prison where at least one of the previous felony convictions was for a crime of violence and the defendant served one year or more for both prior felonies. Miss.Code Ann. § 99-19-83.

¶ 16. The pertinent part of the habitual-offender portion of Johnson’s indictment charged that:

[T]he said defendant is hereby charged under [Mississippi Code Annotated] § 99-19-83 to be sentenced to life imprisonment or, alternatively, if proof [does] not support sentencing under § 99-19-83, [then] under [Mississippi Code Annotated] § 99-19-81 [the defendant is] to be sentenced to the maximum term of imprisonment prescribed for such felony....

Based on our review of the record, it is clear that the State charged Johnson as a habitual offender under section 99-19-83. Section 99-19-81 was clearly listed as an alternative. As previously mentioned, Johnson’s previous felony convictions were for manslaughter and aggravated assault. Thus, it is abundantly clear that the State’s evidence supported Johnson’s charge as a habitual offender under section 99-19-83 because both of Johnson’s previous felonies were crimes of violence.

¶ 17. Furthermore, the supreme court has held that: “[I]t [is] not necessary for the State to specify in the indictment which section of the habitual criminal statute they were proceeding under ... [because] these two statutes are not criminal offenses and only affect sentencing.” Ellis v. State, 469 So.2d 1256, 1258 (Miss.1985) (citing Osborne v. State, 404 So.2d 545, 548 (Miss.1981)); see Frazier v. State, 907 So.2d 985, 990 (¶ 12) (Miss.Ct.App.2005). Based on the foregoing, we find that Johnson’s argument is without merit.

II. Ineffective Assistance of Counsel

¶ 18. On direct appeal, Johnson argues that he received ineffective assistance of counsel. Specifically, Johnson maintains that his trial counsel allowed him to be sentenced to a life sentence by a judge rather than by a jury; his trial counsel lied to him; his trial counsel did not allow him to review discovery; his trial counsel failed to object to his allegedly defective indictment; and he told the trial court that he did not want his trial counsel to represent him.

¶ 19. This Court rarely considers issues of ineffective assistance of counsel on direct appeal unless “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Graves v. State, 914 So.2d 788, 798 (¶ 35) (Miss.Ct.App.2005) (citations omitted).

¶ 20. Based on our review of the record, we do not see ineffectiveness of constitutional dimensions. Also, the parties have not stipulated that the record is adequate to allow this Court to consider the issue. Thus, we decline to address Johnson’s claim of ineffective assistance of counsel on direct appeal.

III. Motion for a Directed Verdict

¶ 21. Johnson argues that the trial court erred by denying his motion for a directed verdict because the State did not prove each element of the offense. Specifically, Johnson alleges that the State wrongfully charged him with attempted aggravated assault when it, instead, should have charged him with shooting into a motor vehicle. Johnson also claims that the State did not satisfy the intent element of attempted aggravated assault. Conversely, the State argues that it successfully proved all elements of the crime; thus, the motion for a directed verdict was properly denied.

¶ 22. A motion for a directed verdict challenges the legal sufficiency of the evidence. Hill v. State, 912 So.2d 991, 994 (¶ 19) (Miss.Ct.App.2004) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). In reviewing a trial court’s grant or denial of a motion for a directed verdict, we view the evidence in the light most favorable to the State, giving the State all reasonable inferences which may be drawn there from. Id. This Court will not reverse the trial court’s decision absent a finding that “fair-minded jurors could only find the defendant not guilty.” Id. To determine whether there was error, we must review the elements of the crime charged. Id.

¶ 23. Johnson was indicted for attempted aggravated assault under Mississippi Code Annotated section 97-3-7(2) (Supp.2009), which provides that:

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

Johnson argues that the State should have charged him with shooting into a motor vehicle. However, it is within the prosecutor’s discretion to decide what charge to bring against a criminal defendant. Jordan v. State, 995 So.2d 94, 109 (¶ 45) (Miss.2008) (citing Watts v. State, 717 So.2d 314, 320 (¶ 14) (Miss.1998)).

¶ 24. Under the indictment, the State simply had to prove that Johnson attempted to cause bodily injury to Sanders with a deadly weapon. During the trial, Sanders testified that he was involved in an altercation with Johnson on the day of the incident. Sanders, Rich, and Ford all testified that they saw Johnson raise a gun and fire the gun at their car. A bullet was recovered from the seal of the driver’s side door, which is where Sanders was sitting. Based on the evidence presented at trial, we find that a reasonable jury could have concluded that Johnson intended to cause bodily injury to Sanders by using a deadly weapon. Thus, we find that the trial court did not err by denying Johnson’s motion for a directed verdict. This assignment of error is without merit.

IV. Motion for a New Trial

¶ 25. Johnson argues that the trial court erred by denying his motion for a new trial because the verdict is against the overwhelming weight of the evidence. Specifically, Johnson claims that there was no evidence that he intended to cause injury to anyone in the car. Conversely, the State argues that the trial court did not err by denying the motion for a new trial because there was no evidence presented that was contrary to the verdict.

¶ 26. This Court reviews the trial court’s decision to grant or deny a motion for a new trial under an abuse-of-discretion standard of review. Hill, 912 So.2d at 995 (¶ 25) (citing Woodard v. State, 765 So.2d 578, 576 (¶ 16) (Miss.Ct.App.2000)). Whether to grant or deny a motion for a new trial is in the trial court’s sole discretion. Id. The trial court should only grant a new trial when the verdict is so contrary to the overwhelming weight of the evidence that failure to grant the motion would result in an unconscionable injustice. Id. To determine whether the verdict is against the overwhelming weight of the evidence, this Court views all evidence in the light most consistent with the verdict. Id.

¶ 27. In this assignment of error, Johnson simply repeats the same argument that he made under his third assignment of error. Thus, we find that this issue is also without merit.

V. Cumulative Error

¶ 28. Johnson argues that the cumulative effect of the errors of the trial court is grounds for reversal in this case. Under the cumulative-error doctrine, “individual errors, which are not reversible in themselves, may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial.” Harris v. State, 970 So.2d 151, 157 (¶ 24) (Miss.2007) (quoting Ross v. State, 954 So.2d 968, 1018 (¶188) (Miss.2007)). However, where the Court does not find any error in the case, there can be no cumulative error that warrants reversal. Id. (citing Gibson v. State, 731 So.2d 1087, 1098(31) (Miss.1998)).

¶29. We have not found any error in Johnson’s case. Thus, there can be no reversal based on the cumulative-error doctrine. This issue is without merit.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF COUNT I, ATTEMPTED AGGRAVATED ASSAULT, AND SENTENCE AS A HABITUAL OFFENDER OF LIFE; AND COUNT II, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCE AS A HABITUAL OFFENDER OF LIFE, WITH THE SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

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


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Dexter LIPSEY a/k/a Derrick Dwayne Lipsey, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-00607-COA.
    Court of Appeals of Mississippi.
    June 15, 2010.
    Rehearing Denied Oct. 12, 2010.
    Certiorari Denied Jan. 6, 2011.

      William R. Labarre, Virginia Lynn Watkins, Leslie S. Lee, Jackson, Greta M. Harris, attorneys for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before MYERS, P.J., BARNES and MAXWELL, JJ.

      . The bench conference was not recorded in the transcript.

   BARNES, J.,

for the Court:

¶ 1. Dexter Lipsey was convicted in the Hinds County Circuit Court for the murders of Louise T. Ray, J.W. Gilbert, and Bruce Rankin, and the kidnaping of Rebecca Virden. He was sentenced to life for the murder convictions and thirty years for the kidnaping conviction, all in the custody of the Mississippi Department of Corrections (MDOC) as a habitual offender, with each count to run consecutively to each other.

¶ 2. Lipsey argues on appeal that the trial court deprived him of his opportunity to present a complete defense when the court: barred him from presenting the testimony of an alibi witness, granted the State’s motion in limine to restrict testimony regarding cocaine found in the victims’ blood or to refer to the murder scene as a “crack house,” refused to permit Lipsey to make a proffer, and denied him the opportunity to recross-examine Dr. Steven Hayne. Lipsey also claims that the trial court erred by failing to use the correct legal standard in admitting autopsy photographs during the trial, as well as by denying Lipse/s motion to dismiss for failure to grant him a speedy trial. Finding no error, we affirm Lipse/s convictions and sentences.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. Lipsey was arrested and charged with the shooting deaths of Ray, Gilbert, and Rankin, and the kidnaping of Virden. Virden testified that she was living with her girlfriend, Ray, at 3520 Cromwell Street in Jackson, Mississippi. Virden stated that on November 10, 2005, she was in the process of moving her belongings to her daughter’s home, because Virden and Ray had been fighting. Virden testified that she had been drinking since seven o’clock that evening, but she maintained that she was not drunk. Virden stated that Lipsey, a man she previously knew only by the nickname of “D,” entered her room at Ray’s house, holding a rifle, and ordered her to come into the living room. Gilbert and Rankin were sitting on the couch; Ray was standing between them with her hands raised. Lipsey demanded that Ray pay him the twenty-five dollars he claimed that she owed. Ray said she did not have the money. Lipsey asked a second time, and Ray repeated that she did not have the money. Virden testified that Lipsey then shot Ray, who fell into Gilbert’s lap. Virden put her head between her knees, then heard a second shot. Virden stated that she blacked out after hearing the second gunshot. Virden said that Lipsey then pulled her up by her hair and forced her to get into his car, telling her that he wanted her to help him get money from automatic bank teller machines. While en route to the bank, Vir-den insisted that she had to use the bathroom, and Lipsey stopped the car, got out with her, and took Virden to a field as he kept the rifle on her.

¶ 4. Officer James Thomas of the Ridge-land Police Department testified that at approximately 8:37 p.m. on November 10, 2005, he noticed a 1990s model white Oldsmobile on the roadside of Old Agency Road. Officer Thomas turned on his spotlight to get a better look; he noticed two people, a man and a woman, at the wood line in a ditch. Officer Thomas testified that the woman, who later identified herself as Virden, was kneeling on the ground with her pants down to her knees and hands on top of her head. Officer Thomas asked if there was a problem, but the male answered that Virden simply needed to use the bathroom. Officer Thomas stated that he exited his patrol car and shone his flashlight over the male, and then noticed that the man had an SKS assault rifle in his right hand. Officer Thomas drew his gun and ordered the man to drop the gun and stop moving. Officer Thomas testified that the man kept walking, got into the car, dropped the rifle and drove off, with the headlights off. Officer Thomas testified that he could not see the man well enough to identify him. Officer Thomas then walked over to Virden, who began screaming and crying that she had been kidnaped from a house in Jackson. Officer Thomas subsequently notified the Jackson Police Department of a possible kidnaping at 3520 Cromwell Street in Jackson.

¶ 5. Lieutenant Tamara Miliken of the Jackson Police Department testified that she and three other officers arrived at 3520 Cromwell Street shortly after Officer Thomas notified the Jackson Police Department of a possible kidnaping from the house. Lt. Miliken led the way inside the house and found two men and one woman sitting on the couch; the woman was slumped over the lap of one of the men, and all three victims were dead.

¶ 6. Detective Tyree Jones of the Jackson Police Department testified that he eventually developed Lipsey as a suspect after receiving Lipsey’s name from an anonymous caller who identified the suspect, “D,” as Dexter Lipsey. After receiving this information, Detective Jones compiled several photographs of black males who went by the alias “D.” Virden identified Lipsey as her kidnaper and the shooter from this photographic lineup.

¶ 7. Sheila Galloway, Lipsey’s girlfriend, testified that Lipsey took her to work on the afternoon of November 10, 2005, and picked her up that evening at 11:00 p.m. Lipsey drove Galloway’s car, a white Oldsmobile. Galloway stated that when Lipsey picked her up that evening, he was wearing the same clothes as when he dropped her off that afternoon, and she saw no blood or any signs of a gun.

¶ 8. After a trial held on September 4 through 6, 2007, Lipsey was found guilty of all counts. Upon the verdict, the trial court sentenced Lipsey as a habitual offender to three terms of life imprisonment for the murders of Ray, Gilbert, and Rankin, and thirty years for the kidnaping of Virden. Lipsey now appeals, and asks this Court to reverse his convictions and vacate his sentences or, in the alternative, remand this case for a new trial.

DISCUSSION

I. Whether the trial court deprived Lipsey of his opportunity to present a complete defense.

¶ 9. Lipsey argues that the trial court deprived him of the opportunity to present a defense when it barred him from presenting the testimony of an alibi witness; granted the prosecutors’ motion in limine to restrict testimony as to cocaine found in the blood of Ray, Rankin, and Gilbert, or to refer to 3520 Cromwell Street as a “crack house”; refused to permit Lipsey to make a proffer; and denied Lipsey the opportunity to recross-examine Dr. Hayne. We shall discuss each contention in turn.

A. Alibi Witness

¶ 10. On August 17, 2007, the State filed a motion for reciprocal discovery, requesting written notice with respect to any alibi witnesses that Lipsey might call to testify at trial. On September 3, 2007, which was the Labor Day holiday, Lipsey’s counsel sent an e-mail to the prosecutor, stating that “my client informed me today that he has a possible [alibi] witness, Vanessa Sims, who will testify that she was with him on November 10, 2005, at around 6:30 p.m. until he picked up his girlfriend from work.” The trial was set to begin the next day, on September 4, 2007. On the day of trial, the State filed a motion to suppress the proposed alibi witness, arguing that the notice given by the defense counsel was not in proper form; the notice was not timely; and the defense counsel failed to comply with the requirements of Uniform Rule of Circuit and County Court 9.05. Attached to the motion as an exhibit was a copy of the September 3 e-mail from Lipsey’s counsel to the prosecutor. Lipsey’s counsel assured the trial court that she notified the prosecutor as soon as she learned from Lipsey that Sims might be a possible alibi witness, but she explained that she had not yet spoken to Sims. Lipsey’s counsel also admitted that her investigator had not yet been able to locate Sims.

¶ 11. After jury selection and before the court recessed for the day, the State informed the trial court judge that he had been notified by the defense that Sims had been located, and the defense wished to make her available for an interview. Lip-sejfs counsel affirmed that the witness had been found, and she informed the judge that she had spoken to Sims. The State renewed its motion to suppress or exclude the witness, claiming that there was no time to investigate Sims’s proposed testimony. The following day, the trial court granted the State’s motion, finding that the defense had failed to identify the witness in a timely manner and also had failed to produce the proposed testimony or any statement of the witness. After this ruling, Lipsey’s counsel added for the record that she had spoken with Sims the day before and that Sims stated she would come by counsel’s office that day but she did not, nor did Sims respond to any phone calls made by the investigator that day. The defense counsel then added for the record that Sims had told her that “she was with Mr. Lipsey at some time she believed during the 10th.”

¶ 12. The standard applied for appellate review of a trial court’s sanction for discovery abuses is “whether the trial court abused its discretion in its decision.” Gray v. State, 799 So.2d 53, 60 (¶ 26) (Miss.2001) (quoting Kinard v. Morgan, 679 So.2d 623, 625 (Miss.1996)). On appeal, the reviewing court may only reverse a trial court’s decision upon finding an abuse of discretion. Id. (citing Conley v. State, 790 So.2d 773, 782 (¶20) (Miss.2001)).

¶ 13. Rule 9.05 states that:

Upon the written demand of the pi-ose-cuting attorney stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days, or at such other time as the court may direct, upon the prosecuting attorney a written notice of the intention to offer a defense of alibi, which notice shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon which the defendant intends to rely to establish such alibi.
If, prior to or during trial, a party learns of an additional witness whose identity, if known, should have been included in the information previously furnished, the party shall promptly notify the other party or the party’s attorney of the name and address of such additional witness.
Upon the failure of either party to comply with the requirements of this rule, the court may use such sanctions as it deems proper, including:
1. Granting a continuance;
2. Limiting further discovery of the party failing to comply;
3. Finding the attorney failing to comply in contempt; or
4. Excluding the testimony of the undisclosed witness.
This rule shall not limit the right of the defendant to testify in his/her own behalf.
For good cause shown, the court may grant an exception to any of the requirements of this rule.

Lipsey does not challenge Rule 9.05 as arbitrary or disproportionate to the purposes the rule is designed to serve. Instead, Lipsey argues that since the defense counsel turned over the information as soon as she received it, and counsel did not attempt to gain a tactical advantage over the State, an arbitrary application of the rule denied him the fair right to a complete defense.

¶ 14. However, the record shows that Lipsey failed to raise this constitutional claim in the trial court when the judge was considering whether to exclude the alibi witness, or at any other time. “An objection at trial cannot be enlarged in a reviewing court to embrace an omission not complained of at trial.” Kiker v. State, 919 So.2d 190, 199 (¶34) (Miss.Ct.App.2005) (citing Brown v. State, 682 So.2d 340, 350 (Miss.1996)). Thus, this issue is procedurally barred.

¶ 15. Procedural bar notwithstanding, Lipsey’s argument is also without merit. We find Coleman v. State, 749 So.2d 1003 (Miss.1999) analogous to this case and instructive on the constitutional argument Lipsey makes on appeal. In Coleman, the Mississippi Supreme Court held that the trial court’s exclusion of the defendant’s proposed alibi witness based on a failure to comply with Rule 9.05 was proper. Id. at 1010 (¶ 19). The State made a written demand to the defense for alibi witnesses on April 13, 1995. Id. at 1007 (¶ 8). The record indicated that the defendant did not notify his attorney of his desire to pursue an alibi witness until one week before trial. Id. at 1006 (¶ 5). A few days later, defense counsel notified the State, via a hand-delivered letter, of its intent of using an alibi witness. The notice did not give the defendant’s alleged whereabouts at the time of the crime or the alibi witness’s address. Id. The witness was finally located the night before the last day of trial and did appear in court, but when the trial judge heard her testimony outside of the presence of the jury, he excluded her as a witness because the letter notifying the State of the witness did not comply with Rule 9.05. Id.

¶ 16. The Coleman court noted that in previous discussions regarding sanctions for discovery violations, the Mississippi Supreme Court has cited to Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). Id. at 1008 (¶11). This Court, in Houston v. State, 752 So.2d 1044, 1047 (¶ 12) (Miss.Ct.App.1999), explained that the Taylor court:

was asked to hold that the ultimate sanction of excluding defense alibi witnesses was a violation of a defendant’s Sixth Amendment rights.... The Supreme Court held that, so long as the trial court had some measure of discretion to assess the seriousness of the infraction and measure out an appropriate sanction, it was not a constitutional violation [of the defendant’s Sixth Amendment right to compulsory process] to exclude alibi witnesses in those instances where the defendant’s failure to respond to an appropriate request could be seen as wilful.

Id. (citing Taylor, 484 U.S. at 415, 108 S.Ct. 646). Houston, however, involved the defense counsel, not the defendant, ignoring the State’s request for alibi defense information, which this Court found as a wilful violation of the rules of criminal prosecution. Id. at (¶ 13). The Mississippi Supreme Court in Coleman, however, which was handed down after this Court’s decision in Houston, dealt with a defendant’s wilful violation of the discovery rules, not defense counsel’s. Coleman thus fully adopted the rule in Taylor for this situation:

Where a trial court finds that an alibi discovery violation is willful and motivated by a desire to obtain a tactical advantage, or where the facts indicate that the defendant intentionally failed to co-operate with his own counsel to the extent of indicating a willful disdain for the adversarial system that would minimize the effectiveness of cross-examination and the adversary process, excluding the proffered testimony is entirely consistent with both Rule 9.05 and the Sixth Amendment Compulsory Process Clause.

Coleman, 749 So.2d at 1010 (¶ 19) (emphasis added). Coleman explains the policy behind this holding, stating:

Allowing a trial judge the discretion to exclude otherwise admissible evidence on the basis of an intentional discovery violation, even when less drastic sanctions are available, undergirds the principles of fairness in our adversarial system. While the Sixth Amendment Compulsory Process Clause gives defendants the right of calling witnesses to their aid, rules of fairness require that constitutional limitations and sanctions be applied equally in the pursuit of justice.

Id. at 1009-10 (¶ 17).

¶ 17. In this case, similar to Coleman, Lipsey’s public defender had been representing him for over a year before Lipsey informed her, the day before trial was set to commence, that he had an alibi witness. Lipsey’s counsel makes much of the fact that she informed the prosecution as soon as Lipsey told her about this information. While the trial court judge did not make a specific finding of a “wilful” violation of either the defense counsel or the defendant himself, as in Coleman, we find sufficient facts in the record to indicate that while Lipsey’s counsel was forthcoming about the new alibi information, Lipsey himself was not. Lipsey’s timing is suspect; he had over one year to inform his counsel about the alibi witness and decided, on the Labor Day holiday and the day before trial commenced, to do so. The record also indicates that Lipsey’s counsel made a diligent effort to locate and interview Sims once she had received this information. However, as in Coleman, “[t]he testimony of this surprise alibi witness would have disrupted the adversary process and flaunted the public interest in the fair and efficient administration of justice.” Coleman, 749 So.2d at 1010 (¶ 19). Under the circumstances of this case, we find no violation of Lipsey’s Sixth Amendment right to compulsory process.

¶ 18. Additionally, the trial court found that Lipsey’s identification of Sims as an alibi witness, and notification to the State, was not timely or proper under Rule 9.05, and we agree. Under Rule 9.05, Lipsey was required to provide the State within ten days of the State’s written demand, or at another time which the court directs, a written notice of “the specific place or places at which the defendant claims to have been at the time of the alleged offense,” but he did not. Lipsey also failed to produce Sims’s proposed testimony, and no statements were made available. All defense counsel could relate, after naming Sims as an alibi witness, was that Sims was with Lipsey “some time during the 10th.” We find that the trial court judge did not abuse his discretion in excluding Lipsey’s alibi witness, Sims. Lip-sey’s argument that he failed to receive a fair and complete defense because of this ruling is without merit.

B. Prosecution’s Motion in Limine

¶ 19. Lipsey next argues that the trial court denied him of his chance to present a defense by granting the State’s motion to bar any mention at trial that the toxicology tests on the blood of Ray, Gilbert, and Rankin showed the presence of cocaine. Lipsey asserts that the trial court also denied him of his chance to present his defense by granting the State’s motion to bar any reference to the house at 3520 Cromwell Street as a “crack house.” The main assertion in Lipsey’s defense was that he was not present at 3520 Cromwell Street at the time of the murders; therefore, the identification of him by Virden, whom Lipsey alleges was clearly intoxicated during the alleged incident, was a case of misidentification. Lip-sey submits that had the jury heard that all three murder victims had cocaine present in their bloodstreams; the house was known as a “crack house”; and Lipsey claimed to be with Sims when the crime occurred, the jury may have acquitted Lip-sey. By denying him these opportunities at trial, Lipsey argues that the trial court deprived him of his right to a complete defense.

¶ 20. “The standard of review for the admission or exclusion of evidence is an abuse of discretion.” Evans v. State, 25 So.3d 1054, 1057 (¶ 6) (Miss.2010) (citing Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (¶ 4) (Miss.2003)). A trial court does not abuse its discretion in granting a motion in limine where the court determines that: “(1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury.” Id. (quoting Whittley v. City of Meridian, 530 So.2d 1341, 1344 (Miss.1988)).

¶ 21. At trial, the State moved to exclude evidence of the fact that the three deceased victims tested positive for the presence of cocaine, stating that it was irrelevant evidence and might confuse or mislead the jury. Mississippi Rule of Evidence 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.” Lipsey argues that various indications support his claim that the residence at 3520 Cromwell Street was the scene of illegal drug use, and it was known in the community as a “crack house.” Lipsey claims that such evidence was relevant to his defense that some other person might have committed the murders. However, the State argued that no drugs were found in the house, and there was nothing to show that the cocaine ingested by the three murder victims had been ingested at the house. Thus, the trial court held that the fact that the victims had cocaine in their systems was not relevant. Notably, the trial court judge informed the parties that he might revisit this ruling, depending on the facts brought out at trial. The trial court additionally found that whether the house could be classified as a “crack house” was not relevant.

¶22. In the present case, Lipsey has failed to cite any case law to support his argument that “[wjhere there are drugs, there is usually money and the case law of this state is replete with tragedy that ensues from the confluence of drugs, money and greed, making it easier for jurors to believe that a third party committed the crime of which [Lipsey] was charged.” Lipsey has failed to show any connection between the fact that the victims had used cocaine, or had been shot in a place where cocaine may have been used, and Lipsey’s alleged misidentification as the perpetrator of the crimes. This issue is without merit.

C. Denial of Proffer and Recross-Examination of Dr. Hayne

¶23. Lipsey further argues that the trial court erred in denying him the right to recross-examine Dr. Hayne, the forensic pathologist, as to new matters brought out on redirect examination, and the trial court also erred in denying Lipsey the right to make a proffer as to what his recross-examination would have produced in the way of evidence. Specifically, Lip-sey submits that it was an abuse of discretion to prevent him from inquiring into Dr. Hayne’s estimation of the victims’ times of death and the inventory of personal effects found with Ray, Gilbert, and Rankin. Lip-sey asserts that such inquiries may have led the jury to infer illicit drug use and a greater likelihood that someone other than Lipsey might have committed the crimes.

¶ 24. We note that although the Mississippi Constitution ensures criminal defendants the right to cross-examine witnesses against them, “recross-examination is not allowable as a matter of right, but a matter of trial court discretion.” Moore v. State, 1 So.3d 871, 874-75 (¶ 13) (Miss.Ct.App.2008) (quoting Bailey v. State, 952 So.2d 225, 239 (¶ 35) (Miss.Ct.App.2006)). The standard of review for a trial court’s denial of recross-examination is abuse of discretion. Id. at 875 (¶ 13) (citing Hubbard v. State, 437 So.2d 430, 434 (Miss.1983)). In addition, the Mississippi Supreme Court has held:

It is proper to exclude questions as to matters which were not opened up or brought out on redirect examination, or as to matters already fully covered, or discussed at length on cross-examination, where there is no claim of oversight and no reason stated why the matter was not inquired into on the cross-examination proper.

Id. (citing 98 C.J.S. Witnesses § 429).

¶ 25. During cross-examination of Dr. Hayne, Lipsey’s counsel attempted to inquire about the personal items found with the victims. The State objected, and a bench conference was held. After the defense requested permission to recross-examine Dr. Hayne, the trial court denied the request, holding that the personal effects of the victims were not relevant to any issues in this cause; therefore, the court prevented the defense from questioning Dr. Hayne regarding those issues. The trial court also denied Lipsey’s request to make a proffer regarding the personal items.

¶ 26. As to the times of the victims’ deaths, the trial court judge clarified that he never prevented defense counsel from examining Dr. Hayne about the victims’ times of death. The record reflects that Lipsey then requested to make a proffer regarding the victims’ times of death, which was stated in Dr. Hayne’s autopsy reports. The trial court stated the defense could read part of the autopsy reports into the record as a proffer, but it was not necessary to call Dr. Hayne back to the stand to question him on the issue. The prosecutor countered that he did not think the defense counsel could make a proffer on the times of death because it was not part of the original bench conference on the issue during cross-examination — that is, just because defense counsel did not ask the question did not mean it could be answered in a proffer. However, no formal proffer was subsequently made by the defense counsel regarding the times of the victims’ deaths. We find nothing in the record to support Lipsey’s claim that the trial court denied his request to make a proffer on the issue.

¶ 27. Furthermore, during redirect examination by the State, Dr. Hayne was not questioned about personal items or times of death. Therefore, we do not find that the trial court abused its discretion in denying recross-examination regarding the issues of times of death or personal items found with the victims. We also find that Lipsey failed to support his allegations that questioning Dr. Hayne about personal items or the times of death would have somehow adversely affected Dr. Hayne’s credibility. This issue is without merit.

II. Whether the trial court failed to use the correct legal standard in admitting autopsy photographs.

¶ 28. Lipsey argues that the trial court abused its discretion in admitting the autopsy photographs of the victims during the testimony of Dr. Hayne. Lipsey alleges that the State submitted these photographs in violation of Mississippi Rule of Evidence 403, and claims that the photographs were introduced primarily to inflame and prejudice the jury against him, which denied Lipsey a fair and impartial trial.

¶ 29. Prior to trial, the defense moved for the exclusion of “gruesome” autopsy photographs. The State reassured the court that it did not intend to introduce photographs that it considered gruesome. The State submitted the photographs that it believed would be useful in assisting the jurors to visualize the crime scene during the course of Dr. Hayne’s testimony. The trial court reserved ruling on Lipsey’s motion until both the defense and the court had the opportunity to review the photographs, but the court held that the photographs were not to be used during voir dire or opening statements.

¶ 30. After jury selection, argument on the issue resumed. The trial court reviewed the photographs that the State indicated it would not introduce into evidence and those that it did intend to offer into evidence. The photographs included both crime scene and autopsy photographs. The trial court ruled that the State would be permitted to offer into evidence those photographs that the State had chosen to use.

¶ 31. Regarding the issue of admissibility of crime scene and autopsy photographs, the Mississippi Supreme Court has held that: “Photographs have evidentiary value where they: 1) aid in describing the circumstances of the killing and the corpus delicti; 2) where they describe the location of the body and cause of death; and 3) where they supplement or clarify witness testimony.” Westbrook v. State, 658 So.2d 847, 849 (Miss.1995) (internal citations omitted). “[T]he admissibility of photographs rests within the sound discretion of the trial judge” and will not be disturbed unless there is an abuse of that discretion. Id. (citing Griffin v. State, 557 So.2d 542, 549 (Miss.1990); Herring v. State, 374 So.2d 784, 789 (Miss.1979)). However, the trial judge’s discretion in admitting autopsy photographs “runs toward almost unlimited admissibility regardless of the gruesomeness, repetitiveness, and the extenuation of probative value.” Id. (quoting Hart v. State, 637 So.2d 1329, 1335 (Miss.1994)).

¶ 32. Here, we note that the photographs either showed the crime scene and location of the bodies of the victims, or they were used by the State’s expert witness, Dr. Hayne, to supplement and clarify his testimony. The photographs had probative value; they aided in describing the circumstances of the killings, showed the location of the bodies and causes of death, and clarified Dr. Hayne’s and other law enforcement officers’ testimonies. Thus, the trial court did not abuse its broad discretion in admitting them into evidence.

III. Whether the trial court erred in denying relief on Lipsey’s motion to dismiss for failure to grant a speedy trial.

¶ 33. Lipsey argues that the trial court erred in denying his motion to dismiss for failure to grant him a speedy trial, which Lipsey claims is a violation of both his statutory and constitutional right to a speed trial. Lipsey was arrested on the charges of kidnaping and murder on November 19, 2005. He was indicted on April 11, 2006, and was arraigned on July 3, 2006. Lipsey filed a motion to dismiss charges for failure to provide a fast and speedy trial on August 24, 2007. At the time of trial on September 4, 2007, approximately 428 days had passed since Lipsey’s arraignment, and approximately 654 days since his arrest. The trial court judge denied Lipsey’s motion to dismiss, stating that the reason for the delay was valid, and he pointed out that Lipsey did not request a speedy trial until August 24, 2007, eleven days before the trial commenced.

¶ 34. The standard of review for claims of speedy-trial violations is well established:

Review of a speedy trial claim encompasses the fact question of whether the trial delay rose from good cause. Under this Court’s standard of review, this Court will uphold a decision based on substantial, credible evidence. If no probative evidence supports the trial court’s finding of good cause, this Court will ordinarily reverse. The State bears the burden of proving good cause for a speedy trial delay, and thus bears the risk of non-persuasion.

Mims v. State, 856 So.2d 518, 520 (¶ 2) (Miss.Ct.App.2003) (citing DeLoach v. State, 722 So.2d 512, 516 (¶ 12) (Miss.1998)).

¶ 35. The Sixth and Fourteenth Amendments to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution guarantee a defendant in a criminal case a right to a speedy trial. Sharp v. State, 786 So.2d 372, 377 (¶ 4) (Miss.2001). Mississippi Code Annotated section 99-17-1 (Rev.2007) also creates a statutory right to a speedy trial, requiring that an accused be brought to trial within 270 days of arraignment unless there is a showing of “good cause.” The constitutional right to a speedy trial attaches at the time the individual is accused. Stark v. State, 911 So.2d 447, 450 (¶7) (Miss.2005) (citing Hersick v. State, 904 So.2d 116, 121 (¶ 5) (Miss.2004)). Lipsey’s constitutional right to a speedy trial, thus, attached when he was arrested on November 19, 2005.

¶ 36. Regarding the statutory right to a speedy trial, if a defendant fails to raise this issue within 270 days of his arraignment, he “effectively acquiesced to the delay.” Walton v. State, 678 So.2d 645, 649-50 (Miss.1996). Lipsey did not complain about lack of a speedy trial until approximately 418 days after his arraignment, when he filed a demand for a speedy trial on August 24, 2007. Thus, Lipsey in effect acquiesced to the delay. Lipsey’s argument concerning a statutory violation of a speedy trial is without merit.

¶ 37. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court set forth a balancing test that must be applied to determine whether a defendant’s constitutional right to a speedy trial has been denied. The Court identified four factors which are to be considered in making such a determination: (1) the length of delay; (2) the reason for delay; (3) whether the defendant has asserted his right to a speedy trial; and (4) whether the defendant has been prejudiced by the delay. Stark, 911 So.2d at 450 (¶ 7) (citing Barker, 407 U.S. at 530-32, 92 S.Ct. 2182). No one factor is dispositive; rather, the totality of the circumstances is considered. Jefferson v. State, 818 So.2d 1099, 1106 (¶ 11) (Miss.2002) (citing Barker, 407 U.S. at 530-32, 92 S.Ct. 2182).

A. Length of Delay

¶ 38. In the case before us, both parties concede that a period of approximately 654 days passed between Lipsey’s arrest and his trial. The Mississippi Supreme Court has held that a delay of eight months or longer is “presumptively prejudicial,” thus requiring a balancing of the Barker factors. Stark, 911 So.2d at 450 (¶ 7) (citing Smith v. State, 550 So.2d 406, 408 (Miss.1989)). We have such a circumstance here.

B. Reason for Delay

¶ 39. Once the delay is found presumptively prejudicial, “the burden of proof shifts to the State to show cause for the delay.” Stark, 911 So.2d at 450 (¶ 11) (citing Price v. State, 898 So.2d 641, 647 (¶ 10) (Miss.2005)). Not all reasons for a delay in trial are cause for dismissal of the charge on the speedy-trial grounds. Different reasons for the delay are given different weights. Birkley v. State, 750 So.2d 1245, 1250 (¶ 16) (Miss.1999) (citing Barker, 407 U.S. at 531, 92 S.Ct. 2182). We note the Mississippi Supreme Court “has been hesitant to weigh the delay heavily against the State where the cause lies with a ‘tentacle of the State,’ such as the State crime lab, rather than with the district attorney’s office.” State v. Woodall, 801 So.2d 678, 683 (¶ 16) (Miss.2001) (quoting State v. Magnusen, 646 So.2d 1275, 1281 (Miss.1994)). In addition, “a congested trial court docket may constitute ‘good cause’ for a trial’s delay.” Felder v. State, 831 So.2d 562, 569 (¶16) (Miss.Ct.App.2002) (citing McGhee v. State, 657 So.2d 799, 802 (Miss.1995)). Docket congestion may weigh against the State, but only slightly. Birkley, 750 So.2d at 1250 (¶ 16) (citing Barker, 407 U.S. at 531, 92 S.Ct. 2182). Finally, a missing witness has been deemed a valid reason justifying appropriate delay. Id.

¶40. Lipsey asserts that he did not request a continuance but continually announced that he was ready for trial at the docket call. However, the State argues that docket congestion and the need to complete testing on evidence delayed Lip-sey’s case from being tried at an earlier date. The State pointed out that the tests on the evidence from the crime scene were not completed until recently — the tool-marks testing was not completed until August 29, 2007, and the gunshot-residue testing on one of the victims was not completed until May 25, 2007. The State also refutes Lipsey’s claim that he continually announced that he was ready for trial, as the first time Lipsey was placed on the docket was on August 14, 2007, which was the most recent docket call prior to the trial.

¶ 41. The trial court ruled that the reason for the delay was a valid one as the court was working on older cases prior to 2006. Once Lipsey’s case was placed on the docket, he announced he was ready for trial at the docket call of August 14, 2007, and he was placed on the trial docket. We find no error in this regard.

C. Assertion of Right to Speedy Trial

¶ 42. Lipsey received a trial within ten days of filing his demand for speedy trial. Lipsey cites Smith, 550 So.2d at 409, arguing that his late assertion of his right to a speedy trial is not fatal to his claim. However, we note that the court in Smith also held that a late assertion of this right weighs against the defendant. Id.

¶ 43. In Black v. State, 823 So.2d 543, 549 (¶ 12) (Miss.Ct.App.2002), Gretchen Black asserted her right to a speedy trial for the first time in her motion to dismiss, which was filed three weeks before her trial was held. This Court ruled that although “[t]he accused does not have the duty to bring [him]self to trial, [he] gains more points under this factor where [h]e has asserted [his] right to a speedy trial in a timelier fashion.” Id. (citing Stogner v. State, 627 So.2d 815, 819 (Miss.1993)).

¶ 44. The trial court judge noted that Lipsey did not demand a speedy trial until August 24, 2007, when he filed his motion to dismiss for failure to grant a speedy trial, which was only approximately eleven days before the trial actually occurred. The trial court judge also pointed out that an announcement at docket call that the defendant is “ready for trial” is not considered a demand for a speedy trial; a separate document must be filed. The judge stated that if Lipsey had made his demand for a speedy trial earlier he would have granted it; but as it was, Lipsey’s demand was untimely made. We find no error with this ruling.

D. Prejudice

¶ 45. For the final Barker factor, Lip-sey argues that he was prejudiced due to the passage of time between his arrest and trial because he could not remember the last names of neighbors or locate a witness who could confirm his alibi on November 10, 2005.

¶ 46. In Barker, the Supreme Court identified three interests protected by the right to a speedy trial that must be considered “when determining whether a defendant has been prejudiced by a delay in bringing him or her to trial .... (1) the interest in preventing oppressive pretrial incarceration, (2) the interest in minimizing anxiety and concern of the accused, and (3) the interest in limiting the possibility that the defense will be impaired.” Hersick, 904 So.2d at 123 (¶ 18) (citing Barker, 407 U.S. at 532, 92 S.Ct. 2182).

¶ 47. In turning to the first interest, preventing oppressive pretrial incarceration, we note that Lipsey asserts that pretrial incarceration for lengthy periods is considered oppressive and prejudicial. Lipsey had been incarcerated since his November 19, 2005, arrest. However, Mississippi case law has consistently held that “being incarcerated alone, without proof of any anxiety and stress above and beyond that which normally occurs with being incarcerated or demonstrating how the particular incarceration is oppressive, is insufficient to show sufficient prejudice.” Jefferson v. State, 818 So.2d 1099, 1108 (¶ 22) (Miss.2002).

¶ 48. The second interest, “minimizing anxiety and concern of the accused, is related to the considerations discussed under the third Barker factor, the defendant’s assertion of the right” to a speedy trial. Hersick, 904 So.2d at 124 (¶21). During the hearing on the motion, Lip-sey’s counsel merely claimed that Lipsey’s incarceration caused him to suffer anxiety; however, Lipsey failed to provide specific evidence concerning any anxiety he suffered as a result of his incarceration.

¶ 49. The third and most important interest is limiting the possibility that the defense will be impaired. Id. at (¶25). Although Lipsey claims he was prejudiced by the passage of time between his arrest and the trial because he could no longer recall the names of witnesses or the location of a particular alibi witness (Sims), Lipsey’s counsel represented to the trial court that she had never actually spoken to this particular alibi witness, and she admitted that she did not attempt to interview or locate the witnesses at the time of Lipsey’s arrest, over a year and a half before the trial. No explanation appears in the record as to why Lipsey did not give his attorney the names or location of these witnesses at an earlier date. After listening to the parties argue their pretrial motion regarding Lipsey’s motion to dismiss for failure to grant a speedy trial, the trial court ruled that the claims of prejudice to Lipsey were without merit, as any prejudice was caused by Lipsey himself.

¶ 50. Under the totality of the circumstances, and upon examination and analysis of the Barker factors, we find Lipsey’s constitutional right to a speedy trial was not violated. Accordingly, the trial court did not err in denying Lipsey’s motion to dismiss for lack of a speedy trial.

¶ 51. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF COUNTS I, II, AND III, MURDER, AND SENTENCE OF LIFE FOR EACH COUNT; COUNT IV, KIDNAPING, AND SENTENCE OF THIRTY YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . Mississippi Rule of Evidence 403 states that "[a]lthough relevant, evidence may be excluded if the probative value is substantially outweighed by the danger of unfair prejudice."


text:
    Bob BEST, Jr., Appellant v. Larry Jess McCACHREN, Jr., Appellee.
    No. 2008-CA-01547-COA.
    Court of Appeals of Mississippi.
    June 29, 2010.
    Rehearing Denied Nov. 16, 2010.

      Adam A. Pittman, Batesville, attorney for appellant.
    Jamie W. Howell Jr., Jefferson Davis Gilder, Southaven, attorneys for appellee.
    Before MYERS, P.J., BARNES and MAXWELL, JJ.
   BARNES, J.,

for the Court:

¶ 1. This is an appeal from the judgment of the Yalobusha County Chancery Court entered on April 18, 2008, dissolving the partnership of Larry Jess McCachren Jr. and Bob Best Jr. McCachren filed a complaint on December 6, 2006, to dissolve the partnership and to partition property that he owned with Best. After dissolving the partnership, the chancellor awarded McCachren not only Best’s entire interest in the partnership property, but also a money judgment against Best in the amount of $35,071.39. Finding this disposition not supported by substantial evidence, we reverse and remand for further proceedings.

SUMMARY OF FACTS

¶ 2. Best owned a store known as “Enid Lake Trading Post” located on approximately 2.9 acres at a crossroads in Yalobu-sha County. After a fire partially destroyed the store building, Best moved the store into a smaller building on the property. He and McCachren entered into a partnership agreement on January 14, 2004, to build a larger convenience store on the property, and they continued using the same name as Best’s previous store. Under the terms of the agreement, both partners owned fifty percent of the land, building, inventory, and “all assets of the business.” Best conveyed a one-half interest in the land to McCachren and construction began on the site. McCachren stated that he valued the property at $10,000; however, Best valued the land at $30,000, stating that he would not “take less than [$]10,000 per acre.” The costs of construction were paid by McCachren, who provided receipts at trial that he claimed proved that he paid $106,642.79 for the construction. Although Best contends that this amount was “over-inflate[d],” we find no evidence to dispute the chancellor’s reliance on McCachren’s calculation.

¶ 3. After the building was finished, Best contributed inventory from his existing store; he also contributed inventory from his deceased father and inventory given to him by his mother, Diane Jenkins. Best testified that he managed and worked at the store for the first year of the partnership. Subsequently, the partners agreed to hire a third party, Sandra Flowers, to manage the store. However, Best terminated Flowers’s services after, in his opinion, she spent too much on unneeded labor, extended store credit to inappropriate people, and allowed the outstanding credit accounts to grow too large. After Best’s firing of Flowers, McCachren gave Best thirty days to purchase McCachren’s interest. Best offered McCachren $80,000 for his interest, but McCachren refused, stating that he would not take less than $100,000 for his share in the partnership. McCachren then removed the power meter, cut the internal power wires, and welded shut the doors to the store. There was testimony from an electrical contractor that the cost would be more than $7,500 to repair the damage done to the building’s electrical system. Best testified that he collected store credits of approximately $6,000 to $8,000 after the store closed and placed these amounts in a separate bank account. Best also testified that he spent the money on partnership debts; however, he did not produce any canceled checks or documents to show how the money was spent.

¶4. On December 6, 2006, McCachren filed a complaint to dissolve the partnership and to receive an equitable division of the partnership debts and assets, a judgment against Best for one-half of the partnership debts, a partition of the property jointly owned by Best and McCachren, a lien on Best’s one-half interest of the real property to secure indebtedness owed by Best, and the sale or award of the portable building on the property in order to satisfy Best’s share of the debt. After receiving testimony at trial, the chancellor awarded the partnership’s entire property to McCa-chren, gave Best an offset of $5,000 (for one-half the value of the partnership property), and awarded McCachren a judgment for $35,071.39, representing Best’s one-half of the partnership debt. This judgment amount was derived as follows:

$ 106,642.79 (capital contribution by McCachren)
- 26,500.00 (less value of Best’s contributions of
real estate and inventory)
80,142.79
-⅞- 2
40,071.39 (50% interest in property)
5,000.00 (value of Best’s one-half of the
partnership property)
$ 35,571.39

Best appeals, claiming that: (1) the chancellor’s findings as to the respective capital contributions of the parties, as well as the valuations of the property, were not supported by substantial, credible evidence, and (2) the chancellor committed manifest error by failing to order the judicial sale of the property and assessing the respective capital accounts of the parties against the proceeds. Finding error, we reverse and remand the case for further proceedings.

STANDARD OF REVIEW

¶ 5. In property partition cases, this Court will affirm the ruling of the chancellor unless there is manifest error. Georgian v. Harrington, 990 So.2d 813, 815-16 (¶ 7) (Miss.Ct.App.2008) (citing Lynn v. Lynn (In re Will of Lynn), 878 So.2d 1052, 1055 (¶ 11) (Miss.Ct.App.2004)). “This Court will not disturb the chancellor’s opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996).

I. WHETHER THE CHANCELLOR’S VALUATIONS OF THE JOINTLY OWNED PROPERTY AND CAPITAL CONTRIBUTIONS ARE SUPPORTED BY SUBSTANTIAL EVIDENCE.

¶ 6. Property valuation is a question of fact. Messer v. Messer, 850 So.2d 161, 170 (¶ 42) (Miss.Ct.App.2003) (citing Ward v. Ward, 825 So.2d 713, 719 (¶ 21) (Miss.Ct.App.2002)). As long as “some evidence” exists to support a chancellor’s valuation judgment, this Court will uphold the decision. Id. at (¶ 43) (citing Dunaway v. Dunaway, 749 So.2d 1112, 1121 (¶ 29) (Miss.Ct.App.1999)).

¶ 7. We find the chancellor’s assignment of value to the jointly owned property is in error as it is not supported by the evidence. The chancery court found that it was “stuck” with a value of $10,000 for the partnership’s real estate, as there was no evidence offered as to the present value of the improved real property. We disagree. The chancellor found that McCachren contributed $106,642.79 to the construction of the convenience store, based on the McCa-chren’s testimony and the invoices and receipts submitted, yet in effect, found that the value of the real estate had not been increased by the construction. This Court certainly understands the chancellor’s frustration over not being provided detailed and accurate valuations by the parties, but a determination that the construction of a $106,000 convenience store on the property did not increase the valuation of the partnership’s property is clear error.

¶ 8. Further, Best testified that the partnership received an offer of $150,000 from a third party for the improved property, which McCachren rejected. Best also attempted to purchase McCachren’s share of the partnership for $100,000, but could only obtain financing for $80,000. McCa-chren rejected this reduced offer, showing that McCachren’s estimation of the value of the partnership was over $160,000. Therefore, we find the chancellor’s valuation of the partnership property at $10,000 was an abuse of discretion and not supported by the evidence. Thus, we reverse and remand for a re-evaluation of the partnership’s improved real property.

¶ 9. As to the value of Best’s contributions to the partnership, the chancellor determined that Best contributed real property valued at $10,000; inventory from his previous store of $4,000; and inventory from his deceased father’s store in the amount of $12,500. The inventory received from Best’s mother was not included in the valuation as the chancellor found that the inventory was from when Best had his own business and “was not involved in the partnership with [McCa-chren].” As to the value of Best’s contribution of real estate to the partnership, the chancellor stated:

There is no evidence whatsoever as to the present value of the store or the land. The plaintiff testified that the land prior to the construction was $10,000. The defendant disputed that when he gave no value as to it himself. He testified that if he were to sell it, he wouldn’t take less than 30,000, but what he will take and what the property is worth [are] two entirely different matters. Therefore, the Court is stuck with that value of $10,000.

We find that the chancellor was within his discretion to assign $10,000 as the value of Best’s contribution of real estate to the partnership in 2004, prior to the construction of the new store building.

¶ 10. Further, we cannot find that the chancellor erred in his valuation of the inventory from Best’s store or from his father’s store. The chancery court gave Best a credit of $4,000 for the inventory transferred from his existing business. Best testified that the inventory of his prior store was approximately $10,000. Best’s sister testified that the value was between $5,000 and $6,000 wholesale, but she also admitted that she did not have “any actual knowledge of what he actually took [from his store] and put into the new store.” No accounting or inventory list was provided to support Best’s estimation. Therefore, we find no error in the chancery court’s reliance upon the lower valuation, and even discounting it, due to the approximations used.

¶ 11. Best testified that the value of his father’s inventory was “somewhere in the neighborhood of $14,000.” Best’s sister “estimat[ed]” that the value of her father’s inventory was $15,000 wholesale and $20,000 retail. She also testified that approximately fifty percent of the inventory had a one-hundred-percent markup. Based on this testimony, we find that the chancellor’s valuation of $12,500 for the father’s inventory was supported by the evidence.

¶ 12. We do find error, however, in the chancellor’s decision to exclude all value as to the inventory of novelty items received from Best’s mother. According to Best, the inventory from Jenkins was “somewhere around maybe $10,000”; Jenkins valued the inventory at $11,000. The court did not include this inventory of novelty items in its valuation, stating that it “was contributed during the period of time in which [Best] maintained his own business and was not involved in the partnership with the plaintiff.” The testimony by Best and Jenkins was that this inventory was received after Best and McCachren began their partnership. Jenkins testified that her inventory went into the new store and that McCachren was with Best on at least one of the trips to get the stock. Also, Jenkins stated that she saw “some of the stuff that [she] had given them was in that store when it was closed down.” McCachren never contradicted the testimony of Best or Jenkins that the inventory from Jenkins went directly into the new partnership’s property. Furthermore, we find that the chancellor’s statement that this inventory was transferred prior to the partnership is not supported by evidence. The partnership agreement was dated January 15, 2004. However, Jenkins testified that the inventory was transferred in the summer of 2004, after Best and McCa-chren had entered into the partnership agreement and during construction on the property. As McCachren has not contradicted the testimony in this regard, we find that the chancellor’s decision not to include this inventory was reversible error.

¶ 13. Best also asserts error in the chancellor’s failure to consider an adjustment for the “devaluation of the partnership property done by McCachren.” This refers to the incident where McCachren unplugged the electrical meter to the building and cut the wires to the meter box. An expert in electrical repair testified that it would cost approximately $7,500 to repair the building. Best admitted that McCachren gave him meat from the store, valued at approximately $1,000, before it could spoil. We find that to the extent the valuation of the improved real property was decreased as a result of McCachren’s actions, it should be taken into consideration on remand.

II. WHETHER THE CHANCELLOR ERRED IN NOT ORDERING A PARTITION BY SALE OF THE PROPERTY.

¶ 14. The chancellor was asked by the parties to dissolve the partnership and partition the jointly owned property. Although he dissolved the partnership, the chancellor did not partition the property as requested but, rather, fashioned a unique remedy not sought by the parties. When asked by the chancellor, both parties agreed that it would be extremely difficult to partition the property in kind. However, Best contends that it was error for the chancellor not to order a partition by sale.

¶ 15. Best cites to Murphree v. Cook, 822 So.2d 1092 (Miss.Ct.App.2002), where this Court held that the chancellor’s failure to partition the property was an abuse of discretion. We stated:

[I]n every case that the chancellor proposes to subvert the detailed statutory procedures for a partition in favor of some ad hoc means of sale, especially when it is undertaken over the strenuous objection of one of the co-tenants, that decision would be subject to being set aside on appeal on an abuse discretion standard. See McNeil v. Hester, 753 So.2d 1057, 1063 (¶ 21) (Miss.2000). In this case, the chancellor set the price to divest Murphree of his interest as the original purchase price of the property. The purchase had occurred some three and one-half years prior to the commencement of the partition action and there was no evidence that this figure accurately reflected the market value of the property at the relevant time. We conclude that this means of valuing the co-tenants’ respective interests in the property was entirely arbitrary and, thus, an abuse of discretion.
Because, under Cheeks v. Herrington, [523 So.2d 1033 (Miss.1988),] Mur-phree’s right to have his interest in the property set apart to him by a partition conducted according to the applicable statutes would seem to be preferred over some alternate plan devised by the chancellor, we find it necessary to reverse that portion of the chancellor’s judgment ordering Murphree to be divested of his fractional title by a procedure of the chancellor’s own making.

Id. at 1098-99 (¶¶ 21-22) (emphasis added). However, the situation in Murphree is distinguishable from the present case, as the property was not a partnership asset but, rather, held by the parties as tenants in common without any agreement as to how the property was to be divided. Here, the property is undeniably an asset of the partnership.

¶ 16. To the extent that the procedure for winding-up partnership affairs is not set out in the partnership agreement, Mississippi statutory law controls. In this case, there is nothing in the partnership agreement as to how the assets of the partnership were to be valued or liquidated upon the dissolution of the partnership. Further, neither party has provided any argument as to the proper interpretation of Mississippi Code Annotated section 79-13-807 (Rev.2009), part of the Mississippi Uniform Partnership Act (1997), to this case. Section 79-13-807 states, in pertinent part, that:

(a) In winding up a partnership’s business, the assets of the partnership, including the contributions of the partners required by this section, must be applied to discharge its obligations to creditors, including, to the extent permitted by law, partners who are creditors. Any surplus must be applied to pay in cash the net amount distributable to partners in accordance with their right to distributions under subsection (b).
(b) Each partner is entitled to a settlement of all partnership accounts upon winding up the partnership business. In settling accounts among the partners, profits and losses that result from the liquidation of the partnership assets must be credited and charged to the partners’ accounts. The partnership shall make a distribution to a partner in an amount equal to any excess of the credits over the charges in the partner’s account. A partner shall contribute to the partnership an amount equal to any excess of the charges over the credits in the partner’s account but excluding from the calculation charges attributable to an obligation for which the partner is not personally liable under Section 306.

(Emphasis added).

¶ 17. Although there are no cases on point in Mississippi that interpret this statute, the issue was addressed in HoRNe v. Aune, 130 Wash.App. 183, 121 P.3d 1227 (2005), where the Washington Court of Appeals considered the property division of a partnership under that state’s applicable statute governing the dissolution or “winding-up” of a partnership. We find the Washington statute discussed in that case to be essentially identical to Mississippi’s section 79-13-807. In that case, the central issue was whether the statute required “a public sale of partnership property to wind up a partnership[,] .... as opposed to permitting a partner to purchase the property, with cash payment to the other partner of his interest.” Id. at 1231-32 (¶¶ 29, 39). The appellate court determined that the “phrase ‘liquidation of the partnership assets,’ guarantees partners the right to receive, in cash, the fair value of their property interest upon winding up and dissolution of the partnership. But that result may be achieved by means other than forced sale.” Id. at 1234(¶ 49). The court in Home noted that sometimes “liquidation equaled forced sale because that was deemed the most accurate method of valuing partnership assets.” Id. Therefore, while a forced sale is certainly a viable remedy for the liquidation of assets, especially when an accurate valuation of the assets is difficult to determine, it not required under the statute.

¶ 18. Accordingly, we reverse the chancery court’s judgment and remand this case for a liquidation of the partnership real estate pursuant to section 79-13-807, which may necessitate a forced sale of the improved real property. The further “winding-up” of the partnership shall take into consideration the additional partnership contribution by Best of his mother’s inventory and any decrease in value to the real estate due to McCachren’s cutting of the electrical lines and removal of the meter box.

¶ 19. THE JUDGMENT OF THE CHANCERY COURT OF YALOBUSHA COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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

      . Best argues that the amount overstates what was paid as it includes double contributions, including both the invoice and the check payment. However, we find nothing in the record to support Best's claim.

      . Mississippi Code Annotated section 79-13-103(a) (Rev.2009) provides that: “Except as otherwise provided in subsection (b), relations among the partners and between the partners and the partnership are governed by the partnership agreement. To the extent the partnership agreement does not otherwise provide, this chapter governs relations among the partners and between the partners and the partnership.” Mississippi Code Annotated Section 79-13-807 (Rev.2009), regarding the winding-up of partnership affairs, "is not one of the non-waivable provisions listed” in subsection (b), although 79—13—103(b)( 10) provides that the agreement may not "restrict rights of third parties[.]” See generally Brom-berg and Ribstein on Partnership, Vol. II, § 7.10(d) n. 23, 7:148 (2006).


author: GRIFFIS, J.,

text:
    BEDFORD HEALTH PROPERTIES, LLC, Bedford Care Center of Hattiesburg, LLC, Hattiesburg Medical Park, Inc., Hattiesburg Park Management Corp., Michael McElroy, Jr. and Robert Perry, Appellants v. The ESTATE OF Theodore DAVIS, by and through Patricia DAVIS, Individually and as Personal Representative of the Estate of Theodore Davis, and on Behalf of and for the Use and Benefit of the Wrongful Death Beneficiaries of Theodore Davis, Appellee.
    No. 2007-CA-00945-COA.
    Court of Appeals of Mississippi.
    Sept. 28, 2010.

      Steven Mark Wann, Heather Marie Aby, Marjorie Selby Busching, Jackson, attorneys for appellants.
    Annette Elise Bulger Mathis, Ridgeland, Douglas Bryant Chaffin, attorneys for ap-pellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

GRIFFIS, J.,

for the Court:

¶ 1. The motion for rehearing is granted. The original opinion of this court is withdrawn, and this opinion is substituted in lieu thereof.

¶ 2. This appeal involves a nursing home admission agreement containing an arbitration clause. The two pertinent issues are: (1) whether the arbitration clause was rendered invalid by changes in the procedural rules of the arbitration association that the arbitration clause specified would apply to any arbitrated dispute and (2) whether Theodore Davis’s wife, Patricia, had the authority to bind him to an arbitration clause in the nursing home admission agreement. The circuit court found the arbitration clause unenforceable, but the record does not disclose findings of fact that the circuit court relied upon in making its ruling. Our initial opinion reversed the circuit court’s judgment and remanded the case for further proceedings. In our initial decision, we found that the arbitration clause was valid and that Patricia bound Theodore’s estate to arbitration through a durable power of attorney for healthcare decisions. Upon rehearing, Patricia asserted that intervening decisions by the supreme court required that we reverse our holdings on both issues and affirm the circuit court’s judgment. We agree, in part, and withdraw our original opinion and substitute this opinion to affirm the judgment of the circuit court.

¶ 3. In light of intervening decisions of the supreme court, we find the first issue to be dispositive of this appeal. As will be more fully discussed, the American Health Lawyers Association (“AHLA”) Alternative Dispute Resolution Service Rules of Procedure for Arbitration, which the arbitration clause specifies shall control this case, were amended after Patricia signed the nursing home agreement but before the present action was filed. The amendment specified that the AHLA Alternative Dispute Resolution Service would “administer” a claim only if the parties agreed to arbitration “after the injury has occurred.” We find that, in light of this amendment, there was no valid agreement to arbitrate. We, therefore, affirm the circuit court’s judgment, albeit upon grounds the circuit court may not have relied upon, and we remand this case for proceedings consistent with this opinion.

FACTS

¶ 4. On September 20, 2000, Theodore executed a properly authenticated durable power of attorney making his wife, Patricia, his agent for all healthcare decisions. On November 12, 2002, Patricia signed an admission agreement with Bedford Care Center on behalf of Theodore as his responsible party. The admission agreement contained an arbitration clause that stated: “It is understood and agreed by the Facility and Resident and/or Responsible Party that any legal dispute, controversy, demand or claim ... that arises out of or relates to ... any service or health care provided by the Facility to the Resident, shall be resolved exclusively by binding arbitration ... in accordance with the American Health Lawyers Association (“AHLA”) Alternative Dispute Resolution Rules of Procedure for Arbitration which are hereby incorporated into this agreement....” This section was initialed by Patricia.

¶ 5. During Theodore’s residence at Bedford Healthcare Center, he allegedly suffered numerous injuries culminating in his death on December 5, 2003. On August 25, 2004, Patricia filed suit alleging, among other things, that Bedford Health Properties had been negligent in earing for Theodore and that the arbitration agreement was unconscionable and unenforceable.

STANDARD OF REVIEW

¶ 6. We apply a de novo standard of review to the denial of a motion to compel arbitration because the motion presents a question of law as to whether the circuit court has jurisdiction to hear the underlying matter. Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507, 513 (¶ 9) (Miss.2005) (overruled on other grounds). The Federal Arbitration Act (“FAA”) governs contracts “evidencing a transaction involving commerce” which include nursing home admission agreements. Id. at 514-15 (¶¶ 13, 16-18) (quoting 9 U.S.C. § 2 (2000)). Therefore, we must apply the policy of the FAA to “rigorously enforce agreements to arbitrate.” East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (¶ 11) (Miss.2002) (quoting Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 226, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987)).

ANALYSIS

¶ 7. The FAA governs contracts “evidencing a transaction involving commerce,” which include nursing home admission agreements. Vicksburg Partners, 911 So.2d at 514-15 (¶¶ 13, 16-18) (quoting 9 U.S.C. § 2). In determining the validity of a motion to compel arbitration under the FAA, courts generally conduct a two-pronged inquiry. “Under the first prong, the court should determine whether the parties have agreed to arbitrate the dispute.” Rogers-Dabbs Chevrolet-Hummer, Inc. v. Blakeney, 950 So.2d 170, 173 (¶ 12) (Miss.2007). “The first prong has two considerations: (1) whether there is a valid arbitration agreement and (2) whether the parties’ dispute is within the scope of the arbitration agreement.” East Ford, Inc., 826 So.2d at 713 (¶ 9).

¶ 8. Here, the arbitration clause that was incorporated into the nursing home admission agreement provided that arbitration would take place in accordance with the rules promulgated by the AHLA.

¶ 9. After we issued our initial opinion in this case, the supreme court decided Magnolia Healthcare, Inc. v. Barnes ex rel. Grigsby, 994 So.2d 159 (Miss.2008), which turned upon an arbitration clause in a nursing home admission agreement that was identical to the one involved in the present case. Id. at 161 (¶ 7). The supreme court noted that the AHLA had amended its rules to provide that it would only arbitrate claims after January 1, 2004, if both parties agreed to arbitration after an injury occurred, stating:

The parties shall be bound by these Rules whenever they have agreed in writing to arbitration by the Service or under the Rules. The Service will administer a “consumer health care liability claim” under the Rules on or after January 1, 2004[,] only if all of the parties have agreed in writing to arbitrate the claim after the injury has occurred and a copy of the agreement is received by the Service at the time the parties make a request for a list of arbitrators. For purposes of the Rules, a “consumer health care liability claim” means a claim in which a current or former patient or a current or former patient’s representative (including his or her estate or family) alleges that an injury was caused by the provision of (or the failure to provide) health care services or medical products by a health care provider or the manufacturer, distributor, supplier, or seller of a medical product.

Id. at (¶ 8) (quoting AHLA Alternative Dispute Resolution Service Rule of Procedure 1.01(c) 1991 (Rev.2003)). The supreme court held in Barnes that because of this rule change, “there was no valid agreement to arbitrate.” Id. at 162 (¶ 11).

¶ 10. In a second case decided after our initial opinion, the supreme court addressed a similar issue concerning changes in procedural rules for arbitration. Covenant Health & Rehabilitation of Picayune v. Estate of Moulds ex rel. Braddock, 14 So.3d 695 (Miss.2009). While the present case involves a different arbitration association than Moulds, the supreme court discussed the procedural rules applied by both associations. Both the American Arbitration Association (“AAA”) and the AHLA procedural rules have been amended to require post-injury consent to arbitration. Id. at 708 (¶40). However, the AHLA’s procedural rules, which are applicable to the present case, provide that the AHLA would administer arbitration even where the parties do not consent post injury if ordered to do so by a court. Id. at 706-07 (¶ 37). Further, the supreme court stated in Moulds:

In [Barnes ], a plurality of this Court would have held that an arbitration agreement was unenforceable because the parties’ forum choice was no longer available. [Barnes, 994 So.2d] at 162. In Barnes, the arbitration agreement called for the use of AHLA rules, but did not require AHLA administration. Id. at 160. The plurality cited AHLA rules, which require a post-dispute agreement to arbitrate. Id. The plurality concluded that, because the patient’s injuries occurred after AHLA’s policy was implemented, and there was no post-dispute agreement, “there was no valid agreement to arbitrate.” Id. at 162.

Moulds, 14 So.3d at 707-08 (¶ 40).

¶ 11. In this case, Theodore died in 2003, which was prior to the AHLA requirement that the parties agree to arbitration post injury. However, Patricia did not file suit until August 25, 2004, which was after the AHLA’s requirement that parties agree to arbitration post injury. However, the AHLA’s procedural rules do not relate to when a claim arose, or when suit was filed. Rather, they provide that the AHLA will not provide arbitration after January 1, 2004, to any claim, regardless of when the claim arose, unless there has been a post-injury agreement for arbitration. Neither the Moulds nor Barnes decisions support this Court assuming jurisdiction to order the AHLA to administer arbitration. We conclude that the chosen forum for arbitration is unavailable, and there is not a valid agreement to arbitrate.' While the circuit court denied Bedford’s motion to compel arbitration, the record is unclear as to the circuit court’s reasoning. Nevertheless, an appellate court may affirm a trial court’s decision on alternate grounds. See Pass Termite and Pest Control, Inc. v. Walker, 904 So.2d 1030, 1032 (¶ 6) (Miss.2004). Therefore, we affirm the circuit court’s judgment and remand this case for further proceedings consistent with this opinion.

¶ 12. Concerning the second issue raised in the motion for rehearing as to whether a durable power of attorney empowered Patricia to bind Theodore to arbitration, we note that there have been subsequent supreme court decisions that bear upon the issue. See Mississippi Care Center of Greenville, LLC v. Hilnyub, 975 So.2d 211 (Miss.2008).

¶ 13. Nevertheless, we find that the first issue rendered the forum for arbitration unavailable; thus, we expressly decline to address the merits of the second issue. We simply note that the supreme court has addressed the applicable law on the second issue following the circuit court’s judgment in this case.

¶ 14. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT IS AFFIRMED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . Due to our finding as to the first prong, it is unnecessary that we consider the second prong of the test.


author: MYERS, P.J.,

text:
    Margie Edna (Galloway) Mallett WILSON, Appellant v. Byron Keith MALLETT, Appellee.
    No. 2009-CA-01607-COA.
    Court of Appeals of Mississippi.
    Dec. 7, 2010.

      H.R. Garner, attorney for appellant.
    L. Anne Jackson Hodum, Steven Glen Roberts, attorneys for appellee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   MYERS, P.J.,

for the Court:

¶ 1. Byron Mallett and Margie Wilson are the natural parents of Byron Mallet Jr. (Byron), who was eight years old at the time of the controversy. On July 2, 2008, Mallett and Wilson entered into an agreed order modifying custody. Among other things, it provided that Mallett would have primary physical custody of Byron and that Wilson would have physical custody for eight weeks during the summer.

¶ 2. Shortly after the agreed custody order was entered, a dispute arose over which parent would have the child for the rest of the summer. The agreed custody order did not specifically address the summer of 2008; it stated only that Wilson would have custody of the child for eight weeks between the week after school ended in the spring and the week before school resumed in the fall. Mallett argued that Wilson’s eight weeks for 2008 would end on July 10, since Wilson had already had custody of Byron for most of that summer. Wilson took the position that her summer visitation under the new order began on the day the agreed order was entered.

¶ 3. On July 8, Wilson filed a motion to set aside the agreed custody order or, in the alternative, to grant relief from the order under Rule 60 of the Mississippi Rules of Civil Procedure. She also asked for an emergency hearing, which the chancellor apparently offered to grant; but Wilson declined the offer due to scheduling difficulties. Wilson then immediately filed an appeal from the agreed order. This Court ultimately dismissed that appeal for want of appellate jurisdiction, finding that Wilson’s pending motion to set the order aside had rendered the appeal interlocutory. Wilson v. Mallett, 28 So.3d 669, 670 (¶ 3) (Miss.Ct.App.2009), cert. denied, 27 So.3d 404 (Miss.2010).

¶ 4. On July 21, 2008, while the appeal on the agreed custody order was pending, Mallett filed a petition for a writ of habeas corpus. Mallett alleged that, under the agreed order, he was entitled to custody of Byron for the remainder of the summer and that Wilson had wrongfully refused to return the child to him. The chancellor granted the habeas corpus petition, the writ was issued, and the Sheriff of DeSoto County removed the child from Wilson’s possession.

¶ 5. On August 22, 2008, the chancellor held a hearing on Wilson’s motion to set aside the writ of habeas corpus. Among other things, the parties represented to the chancellor that, notwithstanding the dispute over custody for the summer, they were now cooperating under the agreed order, and the child had been transferred to and from Wilson’s custody for visitation without incident. The chancery court took the challenge to the issuance of the writ under advisement. On October 14, 2009, the chancellor entered an order finding that the writ had been properly issued. Wilson appeals from that judgment, contending that the writ of habeas corpus should not have been issued and suffered from various technical defects. We find that the controversy in this case has expired, and we dismiss this appeal as moot.

DISCUSSION

¶ 6. “Cases in which an actual controversy existed at trial but the controversy has expired at the time of review, become moot. We have held that the review procedure should not be allowed for the purpose of settling abstract or academic questions, and that we have no power to issue advisory opinions.” J.E.W. v. T.G.S., 935 So.2d 954, 959 (¶ 14) (Miss.2006) (quoting Monaghan v. Blue Bell, Inc., 393 So.2d 466, 466-67 (Miss.1980)). “This principal of mootness applies in child custody cases as well” Id. at (¶ 15).

¶ 7. In Campbell v. Lovgren, 171 Miss. 385, 157 So. 901 (1934), the chancellor awarded custody of a child to the mother, for two months, after which she was to return the child to the father. The father appealed, urging that this was error, but the supreme court found the issue moot because the two-month period had long since ended. The supreme court reasoned that “the period of time during which the custody of the child was changed by the decree appealed from having expired, the questions presented by the record have become purely academic, and therefore no actual controversy is presented for the decision of this court, from which it follows that the appeal should be dismissed.” Id. at 901 (citations omitted). This rationale has also been applied to appellate review of habeas corpus proceedings. See J.E.W., 935 So.2d at 960 (¶ 16); Mandel v. Perez, 71 Ariz. 352, 227 P.2d 385, 385 (1951).

¶ 8. In the present case, it is undisputed that the writ was issued to enforce Mallett’s right to custody of the child between July 10, 2008, and approximately August 7, 2008. At a subsequent hearing, the parties represented to the chancellor that the passage of time had effectively settled this dispute and that they had resumed cooperating under the agreed custody order. Since her prior appeal was dismissed, it appears that Wilson has abandoned her challenge to the agreed order itself.

¶ 9. In this appeal, the only relief Wilson requests is that this Court set aside the habeas corpus proceeding. Since the writ has been fully executed and the underlying dispute abrogated by the passage of time, we find that Wilson’s challenge to the writ presents only academic questions. We therefore dismiss this appeal as moot.

¶ 10. THIS APPEAL IS DISMISSED AS MOOT. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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