author: ISHEE, J.,

text:
    Mario DOCKERY, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00643-COA.
    Court of Appeals of Mississippi.
    Feb. 21, 2012.
    Rehearing Denied June 19, 2012.
    Certiorari Denied Sept. 6, 2012.

      Mario Dockery, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In May 2004, Mario Dockery was indicted for capital murder and conspiracy to commit robbery. Dockery pleaded guilty to a reduced charge of simple murder on March 13, 2007, in the DeSoto County Circuit Court. Following a sentencing hearing, the circuit court sentenced Dockery to life in the custody of the Mississippi Department of Corrections (MDOC). On January 26, 2011, he filed a motion for post-conviction relief (PCR) alleging his guilty plea was involuntary; his indictment was defective; and his attorneys provided ineffective assistance. The circuit court denied the PCR motion on April 5, 2011. A few weeks later, Dockery filed a second PCR motion to alter or amend the judgment alleging the same issues present in his first PCR motion. The second PCR motion was denied by the circuit court on May 3, 2011. Aggrieved, Dockery appeals the denial of his second PCR motion. Finding no error, we affirm.

FACTS

¶ 2. On December 30, 2003, eighty-three-year-old Anna Andrews was murdered in her home during the course of an attempted robbery by three individuals. It was not until Andrews’s daughter and granddaughter entered the residence that Andrews’s body was discovered duct-taped from her nose to her chest area. The record reflects Andrews begged for her life before being suffocated to death. On May 24, 2004, Dockery was indicted for capital murder and conspiracy to commit robbery.

¶ 3. Dockery indicated his desire to enter a guilty plea, and a plea hearing was set for March 19, 2007. At the plea hearing, the circuit judge thoroughly questioned Dockery as to his understanding of the charges against him. When repeatedly asked whether he understood the gravity and consequences of his guilty plea, Dockery answered affirmatively each time. The circuit judge also asked Dockery whether he was satisfied with the services of his legal counsel. Dockery again answered affirmatively and stated he did not have any complaints with his attorneys or any further questions for them.

¶ 4. The circuit judge then requested that Dockery explain to the court his mental capacity since the issue had been brought to the circuit court’s attention. Dockery responded that despite his being “slow,” he understood the implications of his guilty plea. Nonetheless, Dockery underwent a court-ordered psychiatric evaluation in Whitfield, Mississippi, at the Mississippi State Hospital (Whitfield). The stated goal of the evaluation was to determine if Dockery was mentally able to understand the nature of the proceedings against him, to establish his mental state at the time of the alleged crime, and to analyze whether he is legally mentally retarded. The results of the evaluation indicated Dockery is at least slightly mentally handicapped.

¶ 5. The evaluating doctor’s opinion explained that Dockery seemed to struggle with appreciating the nature of the evaluation and its use in court proceedings. However, the opinion went on to state Dockery’s mental deficiencies seemed to be exaggerated, as evidenced by evaluating physicians’ observations of Dockery’s skills at card games and board games, even ones involving strategy.

¶ 6. The opinion did not explicitly define whether Dockery was mentally able to understand the nature of the proceedings against him, his mental state at the time of the alleged crime, or if he is legally mentally retarded. However, the circuit judge took into account all information provided in the opinion. After reviewing the evaluating doctor’s findings, considering all open-court interactions and studying the record, the circuit court deemed Dockery competent to stand trial or enter a guilty plea. As such, Dockery’s guilty plea to simple murder was entered, and the circuit court sentenced him to life in the custody oftheMDOC.

¶ 7. In January 2011, Dockery filed a PCR motion. Therein, he argued: his guilty plea was involuntary; his indictment was defective; his counsel provided ineffective assistance; and his sentence is illegal. The circuit court denied the PCR motion in April 2011. Dockery then filed a motion to vacate or amend his judgment, which the circuit court properly treated as another PCR motion and denied it as being a successive writ and time-barred. Dockery now claims six issues on appeal: (1) his indictment was defective; (2) the circuit court did not have subject-matter jurisdiction to hear his case; (3) his life sentence is illegal; (4) his guilty plea was not freely and voluntarily entered; (5) his counsel provided ineffective assistance; and (6) his PCR motion was not procedurally barred.

DISCUSSION

I. Procedural Bar

¶ 8. In his brief, Dockery admits his latest PCR motion was a successive writ and time-barred pursuant to state law. In particular, Mississippi Code Annotated section 99-39-5 (Supp.2011) governs motions for post-conviction relief. Although Dockery asserts statutorily permissible grounds for requesting post-conviction relief under Mississippi Code Annotated section 99-39-5, the statute further provides that a prisoner has three years within which to request post-conviction relief. After that time, only certain cases are excepted from the procedural bar. Exceptions in the statute to the three-year statute of limitations are as follows:

That there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of [the petitioner’s] conviction or sentence or that [the petitioner] has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence; or [t]hat, even if the petitioner pled guilty or nolo contendere, or confessed or admitted to a crime, there exists biological evidence not tested, or, if previously tested, that can be subjected to additional DNA testing that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution. Likewise excepted are those cases in which the petitioner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.

Miss.Code Ann. § 99 — 39—5(2)(a)(I)—(ii).

¶ 9. Dockery claims his prior arguments on appeal prove he was deprived of fundamental constitutional rights which negate the three-year bar. However, as discussed below, we find all of Dockery’s claims are without merit. Accordingly, this assertion is also without merit.

II. Sufficiency of the Indictment, Jurisdiction, and Legality of the Sentence

¶ 10. “The question of whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by this Court.” Nguyen v. State, 761 So.2d 873, 874 (¶ 3) (Miss.2000) (citation omitted). The law requires “[e]very material fact and essential ingredient of the offense — every essential element of the offense — must be alleged with precision and certainty, or, as has been stated, every fact which is an element in a prima facie case of guilt must be stated in the indictment.” Copeland v. State, 423 So.2d 1333, 1336 (Miss.1982).

¶11. According to Dockery, since he was convicted of simple murder but indicted for capital murder, the indictment was insufficient because it failed to set forth the essential elements of the crime for which he was convicted. However, Dockery fails to state the elements he claims were missing from the indictment. As discussed further below, because simple murder is a lesser-included offense of capital murder, the elements of simple murder were inherently included within the crime of capital murder as reflected in Dockery’s indictment. Miss.Code Ann. § 97-13-19 (Rev.2006).

¶ 12. Dockery’s indictment states in pertinent part:

That ... MARIO DOCKERY ... on or about the 30th day of DECEMBER, in the year of our Lord 2003, ... did wil-fully, unlawfully!!,] and feloniously, and without authority of law, kill and murder Anna Andrews, a human being, while ... engaged in the commission of the crime of [r]obbery, with or without any design to effect the death of Anna Andrews, in direct violation of Section 97-3 — 19(2)(e), Mississippi Code 1972 Annotated, as amended....

Mississippi Code Annotated section 97-3-19 defines murder and capital murder, with the latter being an enhancement of murder by means of the commission of a felony listed in the statute, including robbery, during the time of the unlawful killing. Specifically, the statute defines murder, or commonly referred to as simple murder, as “the killing of a human being without the authority of law by any means or in any manner ... [w]hen done with deliberate design to effect the death of the person killed, or of any human being; [or w]hen done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life....” Miss.Code Ann. § 97-3-19(l)(a)-(b). When applied to the case at hand, capital murder is defined as “the killing of a human being without the authority of law ... [wjhen done with or without any design to effect death, by any person engaged in the commission of the crime of ... robbery ... or in any attempt to commit such felonies.” Miss.Code Ann. § 97 — 3—19(2)(e).

¶ 13. Furthermore, Rule 7.06 of the Uniform Rules of Circuit and County Court states an indictment “shall be a plain, concise[,] and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation. Formal and technical words are not necessary in an indictment, if the offense can be substantially described without them.” The Mississippi Supreme Court has spoken on the requirements of Rule 7.06, clarifying that if an indictment tracks the language of the crime charged, includes the essential fact, and fully informs the accused of the nature and cause of the charges, then the indictment is sufficient. Montana v. State, 822 So.2d 954, 963-64 (¶ 40) (Miss.2002).

¶ 14. Here, the elements of murder are included in the crime of capital murder and were so stated in the indictment. Additionally, having been fully questioned at the plea hearing regarding the crime itself, the nature of the charges, and the consequences of pleading guilty to the crime, Dockery was fully informed of the nature and cause of the charge of murder. Accordingly, we disagree with Dockery’s argument that his indictment was insufficient. This issue is without merit.

¶ 15. Dockery also asserts the circuit court lacked jurisdiction because the indictment was insufficient. However, as discussed above, we find that the indictment was sufficient. As such, his argument fails.

¶ 16. Likewise, Dockery’s claim that his life sentence is illegal is also tied to his assertion the indictment was defective. As such, this issue warrants no further discussion. However, we note Mississippi Code Annotated section 97-3-21 (Rev.2006) provides: “Every person who shall be convicted of murder shall be sentenced by the court to imprisonment for life in the State Penitentiary.” (Emphasis added). Accordingly, by entering a plea of guilty to the charge of murder, Dockery consented to the only punishment allowed by the law — life imprisonment. As such, his claim of an illegal sentence is without merit.

III. Validity of Guilty Plea

¶ 17. When reviewing the volun-tariness of guilty plea, we “will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous.” Walton v. State, 16 So.3d 66, 70 (¶ 8) (Miss.Ct.App.2009) (quoting House v. State, 754 So.2d 1147, 1152 (¶ 24) (Miss.1999)). Additionally, “[t]he burden of proving that a guilty plea is involuntary is on the defendant and must be proven by [a] preponderance of the evidence.” House, 754 So.2d at 1152 (¶ 25) (citation omitted). “To determine whether the plea is voluntarily and intelligently given, the trial court must advise the defendant of his rights, the nature of the charge against him, as well as the consequences of the plea.” Burrough v. State, 9 So.3d 368, 373 (¶ 11) (Miss.2009).

¶ 18. In the next issue on appeal, Dock-ery again asserts the alleged insufficiency of the indictment rendered his guilty plea involuntarily and unintelligently entered. Dockery further claims the circuit court “did not have a factual basis to accept his plea of guilty.” As previously stated, we find the indictment was sufficient to charge Dockery with murder, and his claims regarding the voluntariness of his guilty plea with regard to the indictment are without merit.

¶ 19. Furthermore, the transcript of Dockery’s plea hearing clearly shows the circuit judge fully questioned Dockery on his understanding of the charges against him and his knowledge of the consequences of pleading guilty. Dockery answered that he was aware of the charges of capital murder and attempted robbery brought against him and that he was aware of the reduced charge of simple murder resulting from his plea bargain. The circuit judge also discussed, at length, the performance of Dockery’s attorneys. He asked Dockery if he was satisfied with his counsel’s assistance and whether they had fully explained to him the rights he was relinquishing by pleading guilty. Dockery answered in the affirmative.

¶ 20. Intertwined with Dockery’s assertion that his guilty plea was not voluntarily or intelligently entered is his claim that he is mentally incapable of legally entering a guilty plea. Uniform Rules of Circuit and County Court 9.06 governs a defendant’s competence to stand trial. The same standard is applied when determining if a defendant is competent to enter a guilty plea. Smith v. State, 831 So.2d 590, 593 (¶ 11) (Miss.Ct.App.2002). Rule 9.06 reads:

If before or during trial the court ... has [a] reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court in accordance with § 99-13-11 of the Mississippi Code Annotated of 1972.
After the examination[,] the court shall conduct a hearing to determine if the defendant is competent to stand trial. After hearing all the evidence, the court shall weigh the evidence and make a determination of whether the defendant is competent to stand trial. If the court finds that the defendant is competent to stand trial, then the court shall make the finding a matter of record and the case will then proceed to trial.

¶ 21. The record indicates Dockery’s mental fitness was brought to the attention of the circuit court, and the court ordered the performance of a mental evaluation for Dockery at Whitfield, as required by law. The forensic psychologist evaluating Dock-ery was charged with determining the following:

(a) [Wjhether or not [Dockery] has a factual as well as rational understanding of the nature and object of the legal proceedings against him, and has the ability reasonably to assist his attorney in the preparation of his defense; and
(b) to describe his mental state at he [sic] time of the alleged offense(s) with respect to his ability to know the difference between right and wrong in relation to his actions at that time; and
(c) whether, pursuant to the State case law and Atkins v. Virginia, the defendant is mentally retarded....

¶22. Dockery admitted to the circuit court and to the psychologist that he was “slow.” He explained he cannot read or write, but he finished high school. Dock-ery was evaluated for approximately one day at Whitfield. The evaluating psychologist reported Dockery “appeared, to have great difficulty ... understanding the nature of this evaluation and how information from this evaluation could be used in his legal situation.” The psychologist further stated Dockery “appears to have some genuine intellectual difficulties and appears to be exaggerating those difficulties at least somewhat.” In so concluding, the psychologist noted: “His apparent inability to understand the nature of this evaluation does not appear consistent with his relative strengths at participating in card games and board games, even those involving some strategy, when he is observed in our general patient population.” Nonetheless, the psychologist declined to offer a definitive opinion regarding Dockery’s capacity to understand and knowingly, intelligently waive his right to a trial. In particular, the psychologist stated he could not opine as to Dockery’s understanding of his right not to incriminate himself.

¶ 23. However, at the plea hearing, the circuit judge specifically addressed Dock-ery’s potential mental incapacitation. He questioned Dockery as to his being “slow” and asked Dockery in numerous different lines of questioning if he understood the events taking place. After reviewing the psychologist’s evaluation from Whitfield and conversing with Dockery on several occasions in open court, the circuit judge stated:

Mr. Dockery appears to be alert and responsive. I do not detect any mental or emotional illness. He appears to be well advised of his rights by his lawyers, understands the consequences of offering his plea, and further, he has petitioned the Court in his own handwriting asking that I accept his plea of guilty.

¶ 24. The circuit court complied with the requirements of the law by having Dockery mentally evaluated and exploring Dockery’s claim of mental incapacitation through a mental evaluation and open-court questioning. Because evidence in the record supports the circuit court’s conclusion that Dockery was fit to enter a plea of guilty, we find no error.

¶ 25. Dockery next alleges the circuit court failed to provide a factual basis on which to accept his guilty plea. Having reviewed the record in its entirety, we disagree with Dockery’s claim. The circuit court held several hearings on Dockery’s case, including the plea hearing. At the plea hearing, the circuit court asked the State to explain to the court and to Dock-ery the evidence which would be shown to a jury if Dockery chose to go to trial. In doing so, the State provided ample facts to support Dockery’s involvement in the crime at hand. We see no error in the circuit court’s acceptance of Dockery’s guilty plea. This issue is without merit.

IV. Ineffective Assistance of Counsel

¶ 26. It has long been held that in order for a movant to prevail on an ineffective-assistance-of-counsel claim, he or she must “show by a preponderance of the evidence ‘(1) that counsel’s performance was deficient, and (2) but for the deficiencies, the trial court outcome would have been different.’ ” Jones v. State, 976 So.2d 407, 410-11 (¶ 6) (Miss.Ct.App.2008) (quoting Ward v. State, 914 So.2d 332, 336 (¶ 12) (Miss.Ct.App.2005)). Additionally, under Strideland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant must show “that counsel’s errors were so serious as to deprive the defendant of a fair trial.” Finally, “a presumption exists that the attorney’s conduct was adequate.” Hull v. State, 983 So.2d 331, 333-34 (¶ 11) (Miss.Ct.App.2007) (citing Bums v. State, 813 So.2d 668, 673 (¶ 14) (Miss.2001)).

¶ 27. Dockery claims his counsel was ineffective in assisting him with his decision to plead guilty to simple murder. But Dockery admits he understood if convicted of capital murder by a jury, he would have faced the death penalty and, therefore, pleading guilty to simple murder eliminated the possibility of the death penalty. However, he asserts that his alleged mental retardation would have prevented his execution and that his counsel should have advised him of such and encouraged him to go to trial. We disagree.

¶28. On appeal, Dockery admits in his pro se brief he could have faced the death penalty under a capital-murder conviction; instead, he received a life sentence with the possibility of parole or a suspension of his sentence by pleading guilty to simple murder. First, Dockery’s understanding of the consequences as shown in his brief coupled with the circuit court’s review of his claim of mental retardation indicate Dockery is not mentally retarded. Certainly his knowledge of the interconnections between the charges of capital murder and simple murder and each crime’s corresponding sentence show Dockery’s alleged mental incapacities do not prevent him from understanding the consequences of each charge. That alone is evidence enough to demonstrate Dock-ery is not legally mentally incapacitated. In our opinion, his counsel wisely advised him to remove the possibility of the death penalty as a sentence and to plead to a charge that would offer him a life sentence with the possibility of release in the distant future.

¶ 29. Second, the plea-hearing transcript contradicts Dockery’s allegation that his counsel was ineffective. Dockery was specifically asked if he was satisfied with the services rendered to him by his attorneys. He responded in the affirmative. He was asked if his counsel had been readily available to him throughout his court proceedings. He again responded in the affirmative. When asked if he had any complaints at all about their representation of him, he answered that he did not. Additionally, and again with regard to Dockery’s plea bargain, the negotiation of a plea bargain to eliminate the death penalty and allow Dockery the possibility of one day leaving prison cannot be considered ineffective. The record reflects Dockery was provided adequate legal representation and was not prejudiced or deprived of a constitutional right in any way. We find Dockery’s claim of ineffective assistance of counsel is without merit.

¶ 30. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, RUSSELL AND FAIR, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. ROBERTS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    In The Matter of the ESTATE OF William BIRMINGHAM, Deceased: Nancy Birmingham Walters, Appellant v. Don Barnes and Rosemary Birmingham Barnes, Appellees.
    No. 2010-CA-02070-COA.
    Court of Appeals of Mississippi.
    March 13, 2012.
    Rehearing Denied June 26, 2012.
    Certiorari Denied Sept. 6, 2012.

      Gene Barton, Okolona, attorney for appellant.
    Rhett R. Russell, Tupelo, attorney for appellees.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. William Birmingham died testate on October 14, 2007, and was survived by his two daughters, Nancy Birmingham Walters and Rosemary Birmingham Barnes. Shortly thereafter, Nancy presented Birmingham’s will for probate in the Monroe County Chancery Court and was appointed executrix. On March 10, 2009, Rosemary filed a complaint to remove Nancy as executrix, to revoke Nancy’s letters testamentary, for an accounting, and for damages. The chancellor removed Nancy as executrix and cancelled the letters testamentary. Nancy was ordered to pay to the clerk of the court approximately $41,000 in funds from a joint money-market account Nancy had liquidated after Birmingham’s death. Rosemary’s husband, Don Barnes, was listed as the co-owner of this particular account. Both parties subsequently filed several motions.

¶ 2. A trial was held on August 8, 2010, and October 22, 2010. At the close of Nancy’s case-in-chief, Rosemary and Don made a motion to dismiss pursuant to Mississippi Rule of Civil Procedure 41(b) contending Nancy had failed to support her claim. The chancellor agreed, finding as follows: there was no proof to support the claims of fraud, duress, mistake, incompetency, or undue influence; the money, approximately $41,000, in the joint money-market account which Nancy withdrew was Don’s property; Nancy’s request to amend the pleadings was denied; and the parties were ordered to pay the Estate’s attorney’s fees.

¶ 3. Nancy now appeals asserting the following issues, which we have reordered and rephrased for clarity: (1) Birmingham’s will supersedes the certificate of deposit; (2) the chancellor erred in granting Rosemary’s motion to dismiss; (3) Rosemary and Don changed their position regarding the owner of the joint money-market account; and (4) the chancellor erred in requiring Nancy to contribute to the estate’s attorney’s fees. Finding no error, we affirm.

FACTS

¶ 4. On September 21, 2006, Birmingham moved to Alabama to live with Rosemary and Don. Birmingham had been living with Nancy in Mississippi. During his time in Alabama, Birmingham created several accounts: (1) a certificate of deposit issued November 6, 2006, naming Rosemary as the pay-on-death beneficiary; (2) a joint money-market account established November 6, 2006, with Don as the co-owner; (3) an account with BancorpSouth established June 29, 2007, naming Nancy as the pay-on-death beneficiary; (4) a checking account established on September 25, 2006, with Don added as the co-owner on July 19, 2007; and (5) an Allstate Insurance Annuity, with Nancy and Rosemary named as beneficiaries. The accounts established with either Rosemary or Don as the beneficiary were opened with Regions. At the time of trial, Nancy had liquidated both the joint money-market account naming Don as the co-owner and the account naming her as the pay-on-death beneficiary. The Allstate annuity had also been evenly distributed between Nancy and Rosemary and was not in dispute.

¶ 5. During his time in Alabama, Birmingham created a will on June 8, 2007. However, while visiting Nancy in Mississippi later that month, Birmingham created another will revoking his prior will. This second will was witnessed and executed on June 28, 2007. There was testimony Birmingham was mentally competent at the time and understood what he was doing. In the second will, Birmingham gave “all of [his] property, both real property, personal property and money, C.D.’s, to my daughters ... to share and share alike.” Birmingham moved back to Mississippi on July 21, 2007, to live with his sister in Monroe County. Birmingham died several months later. We will discuss additional pertinent facts as necessary.

DISCUSSION

I. WILL AND JOINT ACCOUNTS

¶ 6. Nancy contends Birmingham’s will supersedes the dictates of the joint accounts; thus, the money in the joint accounts belongs to Birmingham’s estate. Nancy focuses on the account designated as a joint account with right of survivor-ship, namely the account created in Alabama with Don’s name listed as the co-owner. Regardless of whether we apply Mississippi or Alabama law, the result is the same: at Birmingham’s death, the funds in the joint account remained Don’s property. See In re Estate of Cannon v. Ferguson, 733 So.2d 245, 250 (¶¶ 30-31) (Miss.1999); In re Will and Estate of Strange v. Strange, 548 So.2d 1323, 1328 (Miss.1989); Ala.Code § 5-24~12(a) (on death of party, sums in a multi-party account belong to the surviving party); Ala. Code § 5-24-13(b) (right of survivorship may not be altered by will). This issue is without merit.

II. MOTION TO DISMISS

¶ 7. Nancy contends the chancellor erred in granting Rosemary and Don’s joint motion to dismiss. Nancy argues the evidence established undue influence in the creation of the joint accounts with Rosemary or Don as the beneficiaries, such that the funds in these accounts should belong to Birmingham’s estate. Upon our review of the record, the evidence Nancy produced during trial pertains only to the joint account listing Don as the co-owner and not the certificate of deposit listing Rosemary as the pay-on-death beneficiary. Thus, our review will only concern the joint account with Don as co-owner.

¶ 8. In considering a motion to dismiss, the chancellor should consider “the evidence fairly, rather than in the light most favorable to the plaintiff’ and should dismiss the case if it would find for the defendant. Century 21 Deep S. Props., Ltd. v. Corson, 612 So.2d 359, 369 (Miss.1992). We apply our familiar substantial evidence/manifest error standards in reviewing the grant or denial of a motion to dismiss pursuant to Mississippi Rule of Civil Procedure 41(b). Id. “The law in this state on fiduciary or confidential relationships and undue influence is well settled.” Wright v. Roberts, 797 So.2d 992, 998 (¶ 16) (Miss.2001). “[T]he rules of law are different regarding gifts testamentary and gifts inter vivos where a confidential relationship exists between the testator/grantor and the beneficiary/grantee.” Madden v. Rhodes, 626 So.2d 608, 618 (Miss.1993). The supreme court stated as follows:

The prior holdings of this Court indicate a presumption of undue influence only arises in the context of gifts by will when there has been some abuse of the confidential relationship, such as some involvement in the preparation or execution of the will. On the other hand, with a gift inter vivos, there is an automatic presumption of undue influence even without abuse of the confidential relationship. Such gifts are presumptively invalid.

Id. If Nancy is able to demonstrate the existence of a confidential relationship between Birmingham and Don, a rebuttable presumption of undue influence arises regarding any inter vivos transactions between the two. Wright, 797 So.2d at 998 (¶ 21). “[0]nce the presumption of undue influence has been established, the burden of proof shifts to the beneficiary/grantee to show by clear and convincing evidence that the gift was not the product of undue influence.” Id. at (¶ 16).

¶ 9. From the evidence presented, we cannot find Nancy demonstrated a confidential relationship existed between Birmingham and Don. According to the evidence presented, Birmingham did not rely upon Rosemary or Don to take care of him. Rosemary or Don occasionally drove him places, but the testimony overwhelming showed Birmingham was self-sufficient. Birmingham cooked his own meals, took care of himself up until a few weeks prior to his death, was capable of handling his investments, exercised regularly, was “sharp as a tack” as far as money was concerned, had a practice of designating beneficiaries on his investments, and administered his own medication. Birmingham had experienced some dementia in the past, but his medical records as recent as June 26, 2006, show he was stable on his medications, was not confused, was lucid, and “totally clear mentally.” Don did drive Birmingham to the bank on the day Birmingham set up the joint account. Don testified he was unaware the account was a joint account until approximately one-and-a-half years after Birmingham’s death. The record supports this as Rosemary and Don pleaded in their initial complaint that they believed the money from this joint account was part of Birmingham’s estate. Furthermore, there was no allegation Birmingham did not understand the nature and consequences of his actions or the extent of his estate.

¶ 10. We find sufficient evidence to support the chancellor’s decision to grant Rosemary and Don’s joint motion to dismiss. This issue is without merit.

III. POSITION REGARDING JOINT ACCOUNT

¶ 11. Nancy argues Don cannot claim ownership of the joint account because Rosemary and Don stated in their complaint that the money in the joint account belonged to Birmingham’s estate. Upon realizing Don was the co-owner of the joint account, which was several months after the complaint was filed, Don filed a counterclaim asserting he was the rightful owner of the joint account. Prior to trial, Rosemary and Don made a motion to amend the complaint to strike the following sentence: “Soon after her appointment Nancy Birmingham Walters took possession of more than Fifty Thousand Dollars ($50,000.00) of Decedent’s probate estate.” In granting the motion to amend, the chancellor asked Nancy if she was prejudiced as a result of this amendment. Nancy responded she was not prejudiced. During arguments concerning Rosemary’s and Don’s joint motion to dismiss, Nancy objected to the amending of the pleadings to strike that particular sentence. However, the chancellor noted she had already “ruled on [Rosemary and Don’s] amendment because there was an agreement before trial began. [The motion to amend] was allowed. I’m not going to go back and address that.”

¶ 12. We review a motion to amend a complaint under an abuse-of-discretion standard. Webb v. Braswell, 930 So.2d 387, 393 (¶ 8) (Miss.2006). The comment to Mississippi Rule of Civil Procedure 15 states: “If the opposing party objects [to amending the complaint] but fails to persuade the court that such party will be prejudiced in maintaining the party’s claim or defense, the court must then grant leave to amend the pleadings to allow the evidence on the issue.” M.R.C.P. 15 cmt. Rule 15(a) states that leave to amend “shall be freely given when justice so requires.”

¶ 13. We find no abuse of discretion by the chancellor in allowing Rosemary and Don to amend their complaint. Rosemary and Don had discovered the joint account belonged to Don; thus, their amendment was merely to conform to the evidence. Furthermore, Nancy admitted she was not prejudiced by this amendment. This issue is without merit.

IV. ATTORNEY’S FEES

¶ 14. In her final issue on appeal, Nancy argues she should not have been required to pay a portion of the attorney’s fees. The chancellor ordered Nancy to pay $1,500; Rosemary to pay $750; and Don to pay $750. These fees were to be paid to the attorney who represented the administrator of Birmingham’s estate during the trial. It is within the discretion of the chancellor to award attorney’s fees for services rendered in the administration of an estate. Estate of McLemore v. McLemore, 63 So.3d 468, 485 (¶ 46) (Miss.2011). Nancy has failed to support her argument with authority; thus, this Court is precluded from considering these claims on appeal. R.C. Petroleum, Inc. v. Hernandez, 555 So.2d 1017, 1023 (Miss.1990).

¶ 15. THE JUDGMENT OF THE MONROE COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: GRIFFIS, P.J.,

text:
    Leigh MITCHELL, Appellant v. David BARNES, Appellee.
    No. 2010-CA-00036-COA.
    Court of Appeals of Mississippi.
    May 1, 2012.
    Rehearing Denied Sept. 4, 2012.

      Michael F. Myers, Jackson, attorney for appellant.
    Don H. Evans, Mary Barnette Cotton, Christie Evans Ogden, Daryl Matthew Newman, Jackson, attorneys for appellee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   GRIFFIS, P.J.,

for The Court.

¶ 1. David Barnes filed a lawsuit against Leigh Mitchell for his personal injuries arising from an automobile accident. The jury returned a verdict for Barnes in the amount of $150,000. On appeal, Mitchell argues that the circuit court erred by: (1) failing to instruct the jury on Barnes’s duty to operate his motorcycle at or below the posted speed limit; (2) admitting James Hannah’s expert testimony in the field of accident reconstruction; and (3) admitting Officer Michelle Foster’s expert opinion testimony regarding fault and causation. We find reversible error, and remand for a new trial.

FACTS

¶ 2. On July 11, 2004, Barnes was driving his motorcycle northbound on Old Canton Road. Barnes and Mitchell were involved in a collision in front the Jitney Premier. Prior to the accident, Mitchell’s car was located in the entrance to the Jitney Premier facing west. At this location, Old Canton Road has two northbound lanes, a center turn lane, and two southbound lanes.

¶ 3. Officer Foster, a patrol officer with the Jackson Police Department, was dispatched to the accident scene. She testified that when she arrived, Barnes’s motorcycle was on the opposite side of the road in the southbound lane of Old Canton Road, and Mitchell’s car was near the entrance area of the Jitney Premier. Officer Foster testified that Mitchell was easing out into Old Canton Road when she clipped Barnes’s motorcycle. She also testified that, at the time of the accident, Barnes was not driving improperly and that Barnes’s estimated speed at the time of the accident was thirty miles per hour. Officer Foster did not indicate Mitchell’s speed and did not issue Mitchell a traffic citation for the accident.

¶ 4. Barnes testified he stopped at the red light before the Jitney Premier exit and gas pumps. He testified that he drove through the light when it turned green and then signaled to change lanes. As he was looking to see if the other lane was clear, Mitchell pulled out into the road. Barnes testified that he did not have enough time to stop and avoid hitting Mitchell. Barnes testified he was driving between twenty-five and thirty miles per hour. He also testified that he was driving in between the two northbound lanes when the accident occurred.

¶ 5. James Hannah testified as an expert in accident reconstruction on behalf of Barnes. In forming his expert opinion, Hannah surveyed the accident area and interviewed Officer Foster on September 17, 2005, approximately fourteen months after the accident. Hannah also reviewed photographs of Mitchell’s vehicle, but did not review any photographs of Barnes’s motorcycle. Hannah testified that he had interviewed Barnes about what he remembered of the accident. Hannah estimated the final resting location of the motorcycle and, from that estimation, determined the speed of Barnes’s motorcycle from an estimated friction coefficient calculation. Hannah concluded that Barnes was traveling thirty-miles per hour at the time of the accident.

¶ 6. Mitchell testified that, as she pulled up to the exit of the gas station, she heard Barnes speeding down the street. As Barnes’s motorcycle came close to her car, he lost control of his motorcycle and struck her car while it was stopped. Mitchell testified that, at the time of the accident, Barnes was riding his motorcycle on the back wheel doing a “wheelie.” Mitchell testified she had pulled up to the road to see around the bushes, but her vehicle was not in the road at the time of the accident. Mitchell stated that Barnes hit the edge of her bumper and then rolled off his motorcycle as it flipped.

¶ 7. Several eyewitnesses testified during the trial. Greg Parsons testified Barnes was speeding and driving the motorcycle on one wheel. Parsons testified that the accident occurred when Barnes applied his brakes and lost control of the motorcycle. Lorna Owens also testified that the motorcycle was speeding while on one wheel. Owens testified that when the motorcycle came down from being on one wheel, Barnes lost control of the motorcycle. Owens testified that Officer Foster did not ask her about the accident, and she did not give her statement to the police at the time of the accident. Mike Williams also testified that he saw Barnes on one wheel driving at a high rate of speed at the time of the accident. Williams testified that the accident occurred when Barnes used his brakes, causing him to lose control of the motorcycle and hit Mitchell’s car.

ANALYSIS

1. Whether the circuit court erred in denying Mitchell’s proposed jury instruction D-2 on the speed of Barnes’s motorcycle.

¶ 8. At trial, the circuit court refused Mitchell’s proposed jury instruction D-2, which read:

Under the laws of the State of Mississippi, the operator of a motor vehicle, including a motorcycle, has a duty to operate his vehicle at a speed at or below the posted speed limit. Therefore, if you find from a preponderance of the credible evidence in this case that David Barnes was operating his motorcycle at a speed in excess of the posted speed limit at the time of the accident in question, then David Barnes was guilty of negligence. If you find that David Barnes’ negligence, if any, was the sole proximate cause of the accident in question, then you must return a verdict for the Defendant, Leigh Mitchell.

Mitchell claims the evidence presented throughout the trial supported this jury instruction regarding Barnes’s speed at impact. The circuit court disagreed.

¶ 9. In Burton ex rel. Bradford v. Barnett, 615 So.2d 580, 583 (Miss.1993), the supreme court held:

On appeal, this Court does not review jury instructions in isolation; rather, they are read as a whole to determine if the jury was properly instructed. Defects in specific instructions do not require reversal “where all instructions taken as a whole fairly — although not perfectly — announce the applicable primary rules of law.” However, if those instructions do not fairly or adequately instruct the jury, we can and will reverse.

(Internal citations omitted). “When analyzing the grant or refusal of a jury instruction, two questions should be asked: Does the instruction contain a correct statement of law and is the instruction warranted by the evidence?” Beverly Enters., Inc. v. Reed, 961 So.2d 40, 43 (¶ 8) (Miss.2007).

¶ 10. Here, Mitchell’s proposed jury instruction D-2 was a correct statement of the law. “Driving a vehicle in violation of statutory requirements is negligence per se.” Havard v. State, 800 So.2d 1193, 1198 (¶ 14) (Miss.Ct.App.2001). Mitchell argues that, although a jury instruction was given regarding the duty to maintain control of the vehicle, she was still entitled to an instruction regarding Barnes’s speed at the time of the accident. Indeed, a driver’s duty to maintain the speed limit and control of a vehicle are two separate, distinct duties, and both are grounds for the jury to find fault for the accident. The jury should have been separately instructed on Barnes’s duty with respect to the speed of his motorcycle at the time of the accident. Regarding the proof at trial on Barnes’s speed to support instruction D-2, the following exchange occurred:

Court: ... I’m going to refuse your [instruction] D-2 for — there was no evidence to substantiate it, and I don’t remember anyone talking about — I think they said something about the sign, but anything about a posted speed.
Defense counsel: And, Your Honor, the officer testified about it.
Court: What did she testify the posted speed was?
Defense counsel: 35.
Court: Okay. I don’t think that’s an issue in this case, is it?
Defense counsel: Well, there’s admissions by the plaintiff to his doctors that he was going in excess of the posted speed limit. There’s testimony by witnesses that he was—
Court: I didn’t hear the doctor say that. I didn’t hear the doctor say he was going in excess, and that the plaintiff .testified to him or said to him. He said he saw the nurse first, right?
Defense counsel: It’s documented in the records. And the doctor’s testimony and the records are also in evidence.
Court: ... It’s not in the courtroom, and its not anything that I found that led any credible evidence that anybody was speeding. I just didn’t or that there was a posted speed limit that was being exceeded. And even though you say that, the officer did not indicate that .there was any speeding.
Defense counsel: And there’s obviously • a conflict in the testimony. The officer’s report is in evidence with the speed limit and she testified to that.

¶ 11. In addition to the testimony of Mitchell, several eyewitnesses (Parsons, Owens and Williams) testified that Barnes was driving at a high rate of speed at the time of the accident. Furthermore, statements in Barnes’s medical records, introduced as evidence on behalf of Barnes, contained conflicting information regarding Barnes’s rate of speed at the time of the accident. We find that there was ample evidence in the trial record to support jury instruction D-2.

¶ 12. Accordingly, we find it was reversible error for the circuit court to refuse instruction D-2.

2. Whether the circuit court erred by admitting expert testimony of James Hannah.

¶ 13. Mitchell argues that it was error to allow James Hannah to testify as an expert witness in accident reconstruction claiming that Hannah’s testimony was not based on sufficient facts or data. Mississippi Rules of Evidence 702 states:

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

¶ 14. “Our well-settled standard of review for the admission or suppression of evidence is abuse of discretion.” Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (¶ 4) (Miss.2004) (citing Haggerty v. Foster, 838 So.2d 948, 958 (¶25) (Miss.2002)). The Mississippi Supreme Court has said that “the decision of the trial judge will stand ‘unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.’ ” Id. (Internal citation omitted).

¶ 15. Under Rule 702, trial “courts are charged with being gatekeepers in evaluating the admissibility of expert testimony.” Watts v. Radiator Specialty Co., 990 So.2d 143, 146 (¶ 7) (Miss.2008) (citing Irby v. Travis, 935 So.2d 884, 912 (¶ 78) (Miss.2006)). Rule 702 “recognizes the ga-tekeeping responsibility of the trial court to determine whether the expert testimony is relevant and reliable.” Kilhullen v. Kan. City S. Ry., 8 So.3d 168, 172 (¶ 9) (Miss.2009) (citing M.R.E. 702 cmt.).

¶ 16. On August 18, 2006, Mitchell filed a motion in limine to exclude Hannah’s expert testimony on the basis that his data was unreliable. On the date of trial, Mitchell requested the circuit court hear her motion to exclude Hannah as an expert witness. The circuit court ruled that the issue of Hannah’s expert testimony should be addressed during trial under cross-examination. Thus, the circuit court did not conduct a Daubert evidentiary hearing on whether Hannah’s testimony was admissible under Rule. 702.

¶ 17. In McLemore, 863 So.2d at 35-42 (¶¶ 6-39), the supreme court conducted an in-depth analysis of the admissibility of expert testimony adopting the modified Daubert standard. The McLemore court stated that “[t]he trial court is vested with a ‘gatekeeping responsibility.’ ” Id. at 36 (¶ 11) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). The trial court must make a ‘preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and ... whether that reasoning and methodology can be applied to the facts in issue.’ ” Id. at 36 (citation omitted); see also Patterson v. Tibbs, 60 So.3d 742, 749 (¶22) (Miss.2011).

¶ 18. Here, the circuit court did not make a preliminary assessment of Hannah’s methodology or whether his reasoning and methodology could be applied to the facts in this case. See McLemore, 863 So.2d at 36 (¶ 11). Instead, the circuit court ruled that Hannah’s expert testimony would be subject to cross-examination by Mitchell’s counsel and that his expert opinions were matters for the jury to assess. However, this approach fails to implement the circuit court’s gatekeeping function required by McLemore.

¶ 19. When Hannah was called in Barnes’s case-in-chief, the circuit court did allow Mitchell’s counsel to conduct a proffer of Hannah’s testimony outside the presence of the jury. Hannah’s proffer reflected his expected testimony with respect to his opinions about the cause of the accident.

¶ 20. During the proffer, Hannah admitted that there was no physical evidence to review to determine the final resting point of the two vehicles after the accident. He also testified that he did not know where the point of impact was or where Barnes’s motorcycle came to rest. In determining the point of impact, Hannah relied upon Officer Foster’s recollection, fourteen months after the accident, of the accident scene. At the time of the accident, Officer Foster did not note any physical evidence of the impact, nor did she record any measurements from the scene in the accident report.

¶ 21. Moreover, there were no skid marks, oil spots, gouges, or scratches in the road for Hannah to analyze. Hannah testified that he based his placement of the vehicles on Officer Foster’s recollection and the eyewitnesses’. Hannah testified that he never viewed the motorcycle but was given information pertaining to where the damage was on the motorcycle. Hannah did not indicate where he obtained the information about the motorcycle. Because Officer Foster did not mark any landmarks in her drawing of the accident scent in the accident report, Hannah based his reconstruction of the accident on her visit to the accident site with him more than a year later.

¶22. Hannah also offered an expert opinion regarding the speed Barnes was traveling at the time of the accident. Hannah conceded that in order to determine Barnes’s speed, he needed to know how far the motorcycle traveled from the point of impact with Mitchell’s car to its final resting position. However, Hannah did not know the final resting position, as his calculations were based upon Officer Foster’s recollection. Another essential calculation for Hannah to perform to determine Barnes’s rate of speed is called the “coefficient-of-friction”. This calculation takes into consideration how vehicles interact with different types of surfaces, e.g., asphalt, grass or rocks. In this instance, Hannah used a coefficient of friction calculation to determine how far Barnes’s motorcycle slid on the asphalt after impacting Mitchell’s car. Hannah testified he had little physical evidence to determine the coefficient of friction.

¶ 23. As to this calculation, Hannah testified in his deposition as follows:

Q. All right. So, again, where did you come up with the number of using half of the coefficient of friction.
A. Again, I was trying to give the- benefit of the doubt. I don’t like to go with the extreme. I always play devil’s advocate, because I do accidents for everybody, criminal, civil, both sides, and I always like to come up with numbers that gives everybody the benefit of the doubt.
Q. Is there any scientific basis for using half, or did you just pick a number?
A. Well, I picked a number because this has ... proven to be true over the years, that this actually applies, that it has to be less than this. What I am giving is the absolute number.

¶ 24. The record before this Court reflects that Hannah: (1) did not know the distance the motorcycle traveled after hitting Mitchell’s car; (2) did not know the exact location where the motorcycle came to rest; (3) was given an estimate of between fifty and one hundred feet by Officer Foster of the distance between impact and the motorcycle’s resting place; (4) did not have any physical evidence from the scene of the accident to review; (5) “picked” a coefficient-of-friction number to determine the speed of Barnes’s motorcycle at the time of the accident; (6) did not have photographs of the accident scene; (7) did not inspect Barnes’s motorcycle; (8) relied on the recollections of Officer Foster and other eyewitnesses more than one year after the accident in formulating his expert opinions; and (9) did not record the interviews with Barnes or the other eyewitnesses.

¶ 25. We find the circuit court failed to conduct a Daubert evidentiary hearing on the admissibility Hannah’s testimony as required by McLemore. We further find that Hannah’s expert testimony does not meet the standards for admissibility under Rule 702 and McLemore. Applying a mathematical formula, such as a coefficient of friction, where the underlying facts relied on by the expert are the product of speculation and conjecture and cannot be substantiated with any degree of reliability, does not pass scrutiny under the modified Daubert standard applied in McLe-more.

¶ 26. Therefore, it was error for the circuit court to accept Hannah as an expert and allow him to offer expert testimony regarding the accident.

3. Whether the circuit court erred by allowing Officer Foster to testify regarding fault and, how the accident occurred.

¶ 27. Mitchell argues two assignments of error regarding the testimony of Officer Foster. First, Mitchell argues Officer Foster testified outside of her capacity as a lay witness and offered opinions that qualified as expert testimony. Second, Mitchell argues the circuit court erred by admitting portions of the police records that repeated the opinions of Officer Foster. The standard of review for the trial court’s admission or suppression of evidence is abuse of discretion. Haggerty, 838 So.2d at 958 (¶ 25).

¶ 28. Officer Foster was not designated as an expert witness at trial. Mitchell argues that Barnes’s counsel attempted to elicit expert testimony from Officer Foster based on her training and experience as a police officer. Specifically, Officer Foster indicated that the cause of the accident was due to Mitchell’s “fail[ure] to yield the right-of-way.” Officer Foster further concluded that Barnes’s speed at the time of the accident was thirty miles per hour and that Barnes was not driving improperly.

¶ 29. Barnes argues that Officer Foster reached these conclusions from information that she obtained from Mitchell at the accident scene. Mitchell disputes that she ever spoke with Officer Foster. This disputed fact is not material, however, to Officer Foster’s opinion testimony as to the cause of the accident or Barnes’s speed. It is undisputed that Officer Foster was not present at the time the accident occurred. Thus in order for her to render expert opinion testimony, she must be qualified under Rule 702. See also Roberts v. Grafe Auto Co., 701 So.2d 1093, 1099 (Miss.1997) (holding trial court committed reversible error in allowing the police officer to give expert testimony without first being tendered and accepted as an expert in accident reconstruction). Since Officer Foster was never identified or tendered as an expert witness in accident reconstruction, her opinions are inadmissible under Rule. 702. While Officer Foster’s opinions are not admissible under Rule 702, certain opinion testimony is admissible under Mississippi Rule of Evidence 701 as follows:

If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to the clear understanding of his testimony or the determination of a fact in issue, and (c), not based on scientific, technical or other specialized knowledge within the scope of Rule 702.

¶ 30. The supreme court has held “Rule 701 opinions are by definition lay opinions and thus require no specialized knowledge, however obtained.” Miss. State Highway Comm’n v. Gilich, 609 So.2d 367, 377 (Miss.1992). The supreme court has further stated: “There is a bright line rule. That is, where, in order to express the opinion, the witness must possess some experience or expertise beyond that of the average, randomly selected adult, it is a [Rule] 702 opinion and not a Rule 701 opinion.” Sample v. State, 643 So.2d 524, 530 (Miss.1994).

¶ 31. Here, Officer Foster was required to possess specialized knowledge to testify about the cause of the accident and the rate of speed of Barnes’s motorcycle at the time of the accident since she was not present at the time of the accident. On the accident report admitted into evidence, Officer Foster drew a diagram depicting the accident, the lanes where the vehicles were located, “ghost vehicles,” and the point of impact of the collision. Officer Foster testified that she wrote the description of the accident in her report. Officer Foster further testified as to the cause of the accident that Mitchell had failed to yield to the right of way, and moreover, that Barnes was not driving improperly, and was traveling thirty miles per hour at the time of the accident.

¶ 32. We find this testimony by Officer Foster is Rule 702 opinion testimony, rather than Rule 701 lay witness testimony. Officer Foster clearly testified based on her knowledge and experience as a police officer investigating accidents and not based on personal observations. “[I]t is clear that a police officer’s testimony as to the cause of the accident, based on training, experience in investigation, etc., would be considered accident reconstruction testimony, allowable as expert testimony under Rule 702, if the officer is properly qualified.” Couch v. City of D’Iberville, 656 So.2d 146, 153 (Miss.1995). On remand, Officer Foster may testify as to her opinions if properly qualified and tendered as an expert witness.

¶ 33. Finally, Mitchell argues that the circuit court erred in allowing the portion of Officer Foster’s accident report containing her opinions. We agree. To allow the portion of the accident report containing Rule 702 expert opinions would simply circumvent the proper exclusion of her opinion testimony. Therefore, the portion of the accident report containing Rule 702 opinion testimony is inadmissible unless Officer Foster is qualified as an expert witness under Rule 702.

¶ 34. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS 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.

LEE, C.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. RUSSELL, J., DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . Hannah testified that he did not take notes or otherwise record his interviews with Barnes and the other eyewitnesses. Thus, Hannah's opinions are based upon his recollection of what Barnes and the eyewitnesses recalled about the accident more than a year after the accident.

      . Despite the court's ruling that counsel for Mitchell would be permitted to cross-examine Hannah regarding his expert opinions, the circuit court subsequently limited the cross-examination and instructed Mitchell's counsel on several occasions to move to other lines of questioning, particularly in regard to Hannah's testimony on his coefficient of friction calculations. Thus, Mitchell was deprived of a full cross-examination of Hannah’s opinions. See Denham v. Holmes ex rel. Holmes, 60 So.3d 773, 785 (¶ 37) (Miss.2011) (holding "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”) (citation omitted).

      . The accident report does not reflect that Officer Foster spoke with Mitchell at the accident scene.


text:
    Eric PEPPER a/k/a Eric John Pepper, Appellant, v. STATE of Mississippi, Appellee.
    No. 2011-CP-01156-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2012.

      Eric Pepper, appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Eric Pepper pleaded guilty in the Oktibbeha County Circuit Court to possession of a controlled substance as a habitual offender and subsequent drug offender. He was sentenced to serve sixteen years in the custody of the Mississippi Department of Corrections (MDOC), and was ordered to pay a fíne of $100,000. Pepper later filed a motion for post-conviction relief (PCR) in the trial court. The trial court subsequently dismissed his motion. Aggrieved, Pepper now appeals. He argues the following: (1) the State breached the plea agreement as a result of vindictive prosecution; (2) the trial court abused its discretion by dismissing Pepper’s PCR motion without having an evidentiary hearing; and (3) the trial court erred by refusing to supplement the record to include the alleged plea agreement. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Pepper was indicted by the Oktib-beha County grand jury on July 15, 2009, for one count of sale of a controlled substance pursuant to Mississippi Code Annotated section 41-29-139 (Supp.2011). On February 4, 2010, after the charges were reduced, Pepper filed his petition to enter a plea of guilty to possession of methamphetamine. On February 5, 2010, the indictment was amended to charge Pepper as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007). The indictment was also amended to reflect Pepper’s status as a subsequent drug offender pursuant to Mississippi Code Annotated section 41-29-147 (Rev.2009).

¶ 3. According to Pepper, he entered into a plea agreement with the State, which would reduce his charge from sale of methamphetamine to possession of methamphetamine. He contends the plea agreement did not include his status as a habitual offender or a subsequent drug offender. Pepper acknowledges the plea negotiations had included discussions regarding the possibility of the State calling Pepper to testify in a separate burglary trial, but claims that it was “only mentioned in passing.” Pepper asserts that he was indeed called as a witness at the burglary trial; however, as soon as Pepper was called to testify, he promptly invoked his Fifth Amendment right to remain silent and refused to answer any questions.

¶ 4. Pepper claims that on his way out of the courtroom, after invoking his Fifth Amendment right to remain silent, Assistant District Attorney Charles Hedgepeth approached Pepper and swore that he was going to “get him” for his refusal to testify. Pepper alleges his attorney informed him that Hedgepeth would still permit the reduction in charges, but that the subsequent amended indictment was in response to Pepper’s refusal to testify at the burglary trial. Pepper contends Hedgepeth amended the indictment to punish Pepper in retaliation for his refusal to testify in the burglary trial.

¶ 5. Regardless of Pepper’s claims, on April 1, 2010, he pleaded guilty in the trial court. Pepper was then sentenced to serve sixteen years in the custody of the MDOC, and was ordered to pay a fíne of $100,000. Thereafter, Pepper filed a PCR motion. The trial court subsequently dismissed his PCR motion.

DISCUSSION

¶ 6. A trial court may dismiss a PCR motion “[i]f it plainly appears from the face of the motion, any annexed exhibits!,] and the prior proceedings in the case that the movant is not entitled to any relief].]” Miss.Code Ann. § 99-39-11(2) (Supp.2011). When considering the dismissal of a PCR motion on appeal, “we review the trial court’s findings of fact for clear error.” White v. State, 59 So.3d 633, 635 (¶ 4) (Miss.Ct.App.2011) (citing Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004)). “This [C]ourt will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate ‘a claim procedurally alive substantially showing the denial of a state or federal right’ ” Id. (quoting Robinson v. State, 19 So.3d 140, 142 (¶ 6) (Miss.Ct.App.2009)).

I. Plea Agreement

¶ 7. In his first issue on appeal, Pepper argues the State breached its plea agreement by amending the indictment to reflect his status as a habitual offender and subsequent drug offender. He alleges the State did this as retaliation after he invoked his Fifth Amendment right not to testify in a separate case. Pepper claims that the plea agreement did not stipulate that he was required to testify in the separate trial and that the possibility of testifying was “only mentioned in passing.” Pepper does not challenge the State’s authority to amend the indictment; he admits the amendment was proper. His argument rests entirely on his claim that the State breached the plea agreement, which was a result of vindictive prosecution.

¶ 8. Mississippi Code Annotated section 99-39-21(1) (Rev.2007) states: “Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal ... shall constitute a waiver thereof and shall be procedurally barred].]” Pepper failed to argue the amended indictment constituted a breach of the plea agreement or that it was the result of vindictive prosecution at his plea hearing; thus, these arguments are procedurally barred on appeal. Procedural bar notwithstanding, we will address Pepper’s arguments on the merits.

¶ 9. The United States Supreme Court and the Mississippi Supreme Court have stated that vindictive prosecution occurs when “the defendant is punished for doing something that is within his right, such as turning down a plea bargain, by pushing for a heavier sentence, etc.” Heatherly v. State, 773 So.2d 405, 407 (¶ 5) (Miss.Ct.App.2000) (citations omitted). However, the Mississippi Supreme Court has also stated: “In the ‘give-and-take’ of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.” Id. at 408 (¶ 9) (quoting Graves v. State, 492 So.2d 562, 567 (Miss.1986)). Moreover, “[s]o long as the prosecution ‘has probable cause to believe the accused committed an offense defined by statute, the decision of whether or not to prosecute and what charge to bring generally rests in his or her discretion.’” Nichols v. State, 822 So.2d 984, 993-94 (¶ 26) (Miss.Ct.App.2002) (quoting Williams v. State, 766 So.2d 815, 818 (¶ 11) (Miss.Ct.App.2000)).

¶ 10. In the instant case, there is no evidence to support Pepper’s claim of vindictive prosecution. A factual basis existed for all of the charges against Pepper, and the State was within its authority to charge Pepper as a habitual offender and a subsequent drug offender. Additionally, the State could have chosen to proceed with the initial charge of sale of methamphetamine but chose to reduce the charge to possession of methamphetamine. Furthermore, the indictment was amended before Pepper pleaded guilty; thus, he was free to choose to go to trial at any time. Accordingly, the State’s amendment to the indictment to reflect Pepper’s status as a habitual offender and subsequent drug offender was not vindictive prosecution.

¶ 11. Pepper also argues the State violated his due-process rights by breaching the plea agreement. “The [SJtate, whether it be through the prosecutor, the trial judge, or both, is bound by its plea-bargain agreement with a defendant who pleads guilty pursuant to the agreement.” State v. Adams County Circuit Court, 735 So.2d 201, 204 (¶ 7) (Miss.1999) (quoting Salter v. State, 387 So.2d 81, 83 (Miss.1980) (superseded by statute on other grounds)). However, “[ajbsent a guilty plea or some other detrimental reliance by [the] defendant, the prosecutor [i]s under no legal inhibition to revoke his agreement.” Singleton v. State, 618 So.2d 1290, 1291 (Miss.1993).

¶ 12. There is no plea agreement in the record of this case. As such, we are unable to consider whether a plea agreement was, in fact, breached by the State. Furthermore, even if a plea agreement existed, Pepper did not detrimentally rely on that agreement, and he had not pleaded guilty at the time the indictment was amended.

¶ 13. The record reflects that the indictment was amended before Pepper pleaded guilty. The petition to enter a plea of guilty was signed on February 4, 2010, the same day the State filed its motion to amend the indictment. While the trial court’s order allowing the amendment was not signed until February 5, 2010, Pepper’s petition to enter a plea of guilty nonetheless referenced his status as a habitual offender and subsequent drug offender. In the plea petition, paragraph eight clearly states: “I know that if I plead ‘[gjuilty’ to this charge (due to prior drug convietion[s]), the possible sentence is [four] to [sixteen] years imprisonment and/or a fine of $0 to [$]100,000.” Paragraph seventeen, the habitual offender section, also states: “[Mississippi Code Annotated section] 99-19-81 Maximum] time [without] parole as [third] offender.”

¶ 14. Additionally, at Pepper’s plea hearing, the trial judge asked: “You know because you’re pleading guilty as a[ ] habitual offender under [section] 99-19-81 and as a subsequent offender under the Uniform Controlled Substances ... laws pursuant to [section] 41-29-147 that I must sentence you to [sixteen] years in prison without the possibility of parole[?]” Pepper responded: “I understand.” Thus, Pepper knew he was pleading guilty to possession of meth’amphetamine as a habitual offender and a subsequent drug offender and could have chosen to plead not guilty under those terms. There is no evidence that Pepper detrimentally relied on the alleged plea agreement, and the indictment was amended before he pleaded guilty. Accordingly, we find this issue is without merit.

II. Dismissal of PCR Motion Without Evidentiary Hearing

¶ 15. In his second issue on appeal, Pepper argues the trial court abused its discretion by dismissing his PCR motion without holding an evidentiary hearing. Upon a review of the record, the trial court may grant an evidentiary hearing after a determination that one is required. See Miss.Code Ann. § 99-39-19(1) (Rev. 2007). However, “[n]o hearing is required when, based on the record of the guilty plea hearing, it is clear that the petitioner is entitled to no relief.” Watts v. State, 981 So.2d 1034, 1040 (¶19) (Miss.Ct.App.2008) (citations omitted). Additionally, “[i]f it plainly appears from the face of the motion, any annexed exhibitsf,] and the prior proceedings in the case that the mov-ant is not entitled to any relief, the judge may make an order for its dismissal and cause the petitioner to be notified.” Miss. Code Ann. § 99-39-11(2).

¶ 16. Here, the trial court did not err by failing to hold an evidentiary hearing. There is nothing in the record to support Pepper’s claims of vindictive prosecution or breach of a plea agreement.

There is, however, evidence in the record that Pepper entered his plea with full knowledge of the amended indictment and his status as a habitual offender and subsequent drug offender. His petition to enter a plea of guilty and his plea hearing transcript reflect this knowledge. As such, we find the trial court did not err by failing to grant an evidentiary hearing before dismissing Pepper’s PCR motion.

III. Expansion of the Record

¶ 17. Pepper’s final assertion, that the trial court erred by refusing to expand thé record to include the original plea agreement, is also without merit. Mississippi Code Annotated section 99-39-17(1) (Rev.2007) states: “If the [PCR] motion is not dismissed summarily, the judge may direct that the record be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the motion.” Here, Pepper’s PCR motion was dismissed; thus, there was no need to expand the record. Furthermore, the trial court did not need the alleged plea agreement in order to make a determination in the case. The evidence is clear that there was no breach of a plea agreement, nor was there vindictive prosecution on the part of the State. Accordingly, we find this issue is without merit.

¶ 18. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR.

      . There is no plea agreement in the record of this case; however, the charges were, in fact. reduced.

      . Within the record of this case, there is no evidence of Pepper having been called to testify at the burglary trial.


text:
    Larry CHAPMAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00782-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2012.

      Dexter L. Woodberry, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In March 2011, Larry Chapman was convicted in the Humphreys County Circuit Court of two counts of shooting into an occupied motor vehicle; two counts of aggravated assault; one count of murder; and one count of conspiracy to shoot into an occupied motor vehicle, to commit aggravated assault, and to commit murder. Chapman was sentenced to five years in the custody of the Mississippi Department of Corrections (MDOC) on each count of shooting into an occupied motor vehicle, with the sentences to run concurrently with each other but consecutively to all of the other sentences. Chapman was also sentenced to fifteen years in the custody of the MDOC on each count of aggravated assault, with the sentences to run concurrently with each other but consecutively to all of the other sentences. Chapman was sentenced to life in the custody of the MDOC for murder, with the sentence to run consecutively to all of the other sentences. Finally, Chapman was sentenced to five years in the custody of the MDOC for conspiracy, with the sentence to run consecutively to all of the other sentences. Aggrieved, Chapman appeals claiming the circuit court committed reversible error by allowing certain photos into evidence at trial and by denying his motions for a directed verdict, a judgment notwithstanding the verdict (JNOV), and a new trial.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Late in the evening of January 14, 2010, Freddie Holmes was walking to his house in Humphreys County, Mississippi, when he saw his brother, Randy Holmes, sitting in a vehicle talking to a friend. Freddie stopped to talk with Randy, who indicated that he and the friend were not finished with their conversation. Freddie then continued walking to his house. While en route, Freddie noticed Melissa Taylor’s vehicle driving down the road in the direction of Randy’s vehicle. Freddie then observed Larry Chapman and-Antonio Wright running toward Randy’s vehicle. Immediately thereafter, Freddie heard gunshots.

¶ 3. Freddie then ran in the direction of his brother’s vehicle and saw Randy running toward him. Randy began yelling for Freddie to run away. Freddie heard another gunshot and saw Randy fall to the ground. Freddie then witnessed Chapman stand over Randy and shoot him. Chapman fled the scene in Taylor’s vehicle. Freddie ran to his brother and called for help. Randy was taken by ambulance to a nearby hospital but died from a gunshot wound to the head.

¶ 4. Chapman, Wright, and Taylor were all arrested and charged with various crimes related to the incident. The three trials were severed. At Chapman’s trial, Wright testified that he and Chapman were in a gang called the Insane Vice Lords. Wright further testified that Chapman’s brother, Ray Lon Chapman, was killed shortly before Randy’s death and that Randy’s death was retaliation for Ray’s killing.

¶ 5. The testimony at Chapman’s trial farther indicated that Chapman, Wright, and Taylor were drinking and driving on the night in question. When they saw Randy in his vehicle, Chapman and Wright decided to act. The men exited Taylor’s vehicle, and Taylor then drove around the block while waiting on the men. Chapman and Wright approached Randy’s vehicle and asked him for information on where to buy marijuana. When Randy responded, Wright fired one shot into the car. Randy fled the car and grabbed Wright, at which point Wright dropped his weapon. Chapman picked up the gun and began shooting. Randy attempted to escape, but Chapman followed him and fatally shot him. Wright quickly fled the scene.

¶ 6. During the trial, the State attempted to- introduce photographic evidence depicting Randy’s gunshot wounds. The circuit court allowed the photographs into evidence, and they were presented to the jury. After the State rested its case-in-chief, Chapman’s counsel moved for a directed verdict, which was denied. Chapman’s counsel moved for another directed verdict at the .close of the case. That motion was also denied.

¶ 7. After deliberation, the jury found Chapman guilty on all counts. Chapman’s counsel then moved for a JNOV, which was denied. Shortly thereafter, the circuit court sentenced Chapman to the custody of the MDOC on each count. Chapman’s counsel immediately moved for a new trial, which was denied. Chapman now appeals.

DISCUSSION

I. Admission of Photographs into Evidence

¶ 8. With regard to the admission of photographs into evidence, the Mississippi Supreme Court has held:

Admission of photographs by the trial court is reviewed for abuse of discretion. A decision favoring admissibility will not be disturbed absent a clear abuse of that judicial discretion. The discretion of the trial judge is almost unlimited regardless of the gruesomeness, repetitiveness, and the extenuation of probative value. Some probative value is the only requirement needed in order to support a trial judge’s decision to admit photographs into evidence. So long as a photograph has probative value and its introduction serves a meaningful eviden-tiary purpose, it may still be admissible despite being gruesome, grisly, unpleasant, or even inflammatory. A photograph has a meaningful evidentiary purpose when it: (1) aids in describing the circumstances of the killing; (2) describes the location of the body or cause of death; or (3) supplements or clarifies witness testimony.

Chamberlin v. State, 989 So.2d 320, 340 (¶ 73) (Miss.2008) (internal citations omitted).

¶ 9. In the instant case, Chapman asserts the circuit court erred by admitting three photographs that he claims were prejudicial and unnecessary. All of the photographs were taken at the time of Randy’s autopsy. In his appeal, Chapman references the State’s exhibits S-23, S-24, S-25, and S-26, but takes particular issue with the latter three photographs.

¶ 10. Exhibit S-23 is a photograph of Randy’s front right upper arm and front right shoulder showing two gunshot wounds to the shoulder and the bicep area. Exhibit S-24 is a photograph of Randy’s right back and right back shoulder showing one gunshot wound just below the shoulder region. Exhibit S-25 is a photograph of Randy’s full upper back and the back of his head showing one gunshot wound to the head. Finally, Exhibit S-26 is a photograph of Randy’s right knee showing one gunshot wound just above the knee cap. However, Exhibit S-26 was not admitted into evidence and was only marked for identification purposes.

¶ 11. We disagree with Chapman’s argument that the photographs are prejudicial and overly gruesome. Despite Chapman’s claim that one single photograph from the group would have sufficed, having reviewed the photographs in question, it is clear that there was not an individual photograph that would have depicted all of Randy’s injuries. Each photograph shows only the area of the respective gunshot wounds, and none of the photographs reveal Randy’s face.

¶ 12. Chapman was on trial for murder and aggravated assault. Certainly the State was entitled to present evidence of the fatal gunshot wound to the head in support of the murder charge. We also find that the State was entitled to present evidence of the other gunshot wounds as the basis of Chapman’s aggravated-assault charges. The circuit court did not abuse its discretion in admitting the photographs into evidence. This issue is without merit.

II. Motions for Directed Verdict and JNOV

¶ 13. Motions for a directed verdict and a JNOV both challenge the sufficiency of the evidence. See Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). The supreme court has stated that in considering the denial of motions for a directed verdict and a JNOV, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 14. Here, Chapman was charged with shooting into an occupied vehicle, aggravated assault, murder, and conspiracy. With regard to shooting into an occupied vehicle, Mississippi Code Annotated section 97-25-47 (Rev.2006) renders it a crime “[i]f any person or persons shall wilfully shoot any firearms or hurl any missile at, or into, any train, bus, truck, motor vehicle, depot, station, or any other transportation facility!)]” Concerning aggravated assault, Mississippi Code Annotated section 97-3-7(2) (Supp.2011) reads: “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.... ” Murder is defined as “[t]he killing of a human being without the authority of law by any means or in any manner ... [w]hen done with deliberate design to effect the death of the person killed, or of any human being_” Miss.Code Ann. § 97-3-19(l)(a) (Rev.2006). Finally, conspiracy is defined in Mississippi Code Annotated section 97-l-l(l)(a), (h) (Supp. 2011), which states: “If two (2) or more persons conspire ... [t]o commit a crime ... such persons, and each of them, shall be guilty of a felony[.]”

¶ 15. The autopsy report and photographs presented at trial verified that Chapman attacked Randy by shooting him numerous times in his body, including a fatal gunshot wound to the head. Additionally, Freddie testified to witnessing Chapman shoot Randy multiple times during the incident. Moreover, Wright testified that he, Chapman, and Taylor conspired to attack and kill Randy prior to the shooting. Wright also testified to witnessing Chapman shoot into Randy’s vehicle at Randy and Randy’s friend, shoot Randy in the trunk of his body, and shoot Randy in the head. Freddie’s and Wright’s testimonies clearly established a solid foundation for Chapman’s guilt with regard to all charges. These issues are meritless.

III. Motion for New Trial

¶ 16. In Chapman’s final argument on appeal, he asserts that the circuit court erred by failing to grant his motion for a new trial. A motion for a new trial challenges the weight of the evidence. See Vaughn v. State, 926 So.2d 269, 271 (¶ 4) (Miss.Ct.App.2006) (citation omitted). “When reviewing a denial of a motion for a new trial, this Court ‘will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.’ ” Id. (quoting Bush, 895 So.2d at 844 (¶ 18)).

¶ 17. As discussed previously, the autopsy report, photographs, and testimony at trial provided an ample basis for a jury to conclude that Chapman committed the crimes for which he was charged. We cannot find that the verdicts of guilty on all charges were contrary to the overwhelming weight of the evidence. Accordingly, this issue is without merit.

¶ 18. THE JUDGMENT OF THE HUMPHREYS COUNTY CIRCUIT COURT OF CONVICTION OF COUNTS I AND II, SHOOTING INTO AN OCCUPIED MOTOR VEHICLE; COUNTS III AND IV, AGGRAVATED ASSAULT; COUNT V, MURDER; AND COUNT VIII, CONSPIRACY; AND SENTENCES OF FIVE YEARS EACH ON COUNTS I AND II; FIFTEEN YEARS EACH ON COUNTS III AND IV; LIFE ON COUNT V; AND FIVE YEARS ON COUNT VIII; WITH THE SENTENCES IN COUNTS I AND II TO RUN CONCURRENTLY TO EACH OTHER BUT CONSECUTIVELY TO THE SENTENCES IN ALL OTHER COUNTS; WITH THE SENTENCES IN COUNTS III AND IV TO RUN CONCURRENTLY TO EACH OTHER BUT CONSECUTIVELY TO THE SENTENCES IN ALL OTHER COUNTS; WITH THE SENTENCE IN COUNT V TO RUN CONSECUTIVELY TO THE SENTENCES IN ALL OTHER COUNTS; AND WITH THE SENTENCE IN COUNT VIII TO RUN CONSECUTIVELY TO THE SENTENCES IN ALL OTHER COUNTS, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR.


author: IRVING, P.J.,

text:
    Hubert PATTON Jr. a/k/a Hubert Patten Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CA-00310-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2012.

      Catouche J. Body, attorney for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On June 9, 2009, Hubert Patton Jr. pleaded guilty to rape. Following his plea, the Madison • County Circuit Court sentenced Patton to twenty years’ imprisonment in the custody of the Mississippi Department of Corrections, with eight years to serve, twelve years suspended, and five years of supervised probation. On September 16, 2010, Patton filed a motion for post-conviction relief (PCR), which the circuit court denied. Feeling aggrieved, Patton appeals and argues that the circuit court erred in not conducting a competency hearing prior to accepting his guilty plea.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On August 8, 2008, Patton asked M.D. to give him a ride to his cousin’s house in rural Madison County, Mississippi. When M.D. reached the location, which turned out to be deserted, Patton grabbed her by the neck, struck her in the chest, forced her to perform oral sex on him, and then forced her to have intercourse with him. On October 8, 2008, a Madison County grand jury indicted Patton for rape pursuant to Mississippi Code Annotated section 97-3-65(4)(a) (Supp. 2011) and sexual battery pursuant to Mississippi Code Annotated section 97-3-95(l)(a) (Rev.2006). Patton entered into a plea agreement with the State whereby he agreed to plead guilty to rape in exchange for the State’s dismissal of the sexual-battery charge.

¶ 4. In his PCR motion, Patton argues that the circuit court erred in failing to hold a competency hearing before accepting his guilty plea. In support of his argument, Patton points to his attorney’s statements at the plea hearing that Patton had been diagnosed with schizophrenia. The circuit court acknowledged Patton’s attorney’s statements regarding Patton’s medical condition, but noted that Patton’s attorney also stated that Patton understood that he was pleading guilty. Additionally, the court noted that Patton acknowledged during the plea colloquy that he was pleading guilty to rape. Consequently, the circuit court determined that Patton was not entitled to a competency hearing and that his guilty plea had been given voluntarily.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. An appellate court will not reverse a circuit court’s denial of a PCR motion unless the decision was clearly erroneous. Thorson v. State, 76 So.3d 667, 674 (¶ 18) (Miss.2011). However, questions of law are reviewed de novo. Id. at (¶ 19).

¶ 7. Patton contends that the circuit court should have conducted a competency hearing pursuant to Rule 9.06 of the Uniform Rules of Circuit and County Court. We disagree. Rule 9.06 states in part:

If before or during trial[,] the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court in accordance with [section] 99-13-11 of the Mississippi Code Annotated [ (Rev.2007) ].

(Emphasis added). “Though geared towards competency to stand trial, Rule 9.06 may be applied to a defendant’s entry of a guilty plea.” Smith v. State, 831 So.2d 590, 593 (¶ 11) (Miss.Ct.App.2002). “The standard of competency necessary to enter a plea of guilty is the same as that for determining competency to stand trial.” Id. (quoting Page v. State, 812 So.2d 1089, 1041 (¶ 6) (Miss.Ct.App.2001)). “The key phrase in assessing a [circuit] court’s responsibility to order a competency hearing is that a ‘reasonable ground’ exist.” Id. “The determination of what is ‘reasonable’ rests largely within the discretion of the [circuit court] because [it] sees the evidence first hand and observes the demean- or and behavior of the defendant.” Id. (quoting Richardson v. State, 722 So.2d 481, 486 (¶ 24) (Miss.1998)).

¶ 8. The following exchange occurred during Patton’s plea hearing:

THE COURT: Okay. Are you suffering from any mental disease or disorder?
MR. EVANS: Your Honor, for the record, it’s my understanding he’s been committed by his family to Whitfield [ (Mississippi’s state psychiatric facility) ] prior for schizophrenia and maybe bipolar disorder. He has been prescribed medication.
THE COURT: Okay. Is he suffering from any — you’ve talked to him today, Mr. Evans. Does he seem to understand what he’s doing?
MR. EVANS: Yes, your Honor.
THE COURT: Okay. Do you think he understands what he’s doing?
MR. EVANS: Yes, your Honor.
THE COURT: Okay. Mr. Patten [sic], tell me what you’re doing today.
PATTON: I’m pleading guilty to the charge that I have on me against [M.D.].
THE COURT: Okay. Are you under the influence of any drugs or intoxicating liquor?
PATTON: No, sir, not at the moment.

¶ 9. Based on the above colloquy, there was no reasonable ground to believe that Patton was incompetent to enter a guilty plea. The circuit court questioned Patton regarding his understanding of why he was before the court, and Patton stated that he knew that he was pleading guilty. The circuit court later offered Patton an opportunity to withdraw his plea, and when Patton refused, the court accepted his plea and determined that it was “freely, voluntarily, knowinglyf,] and intelligently made.” Based on the above, the circuit court did not err in failing to order a competency hearing. This issue is without merit.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL, AND FAIR, JJ„ CONCUR.

      . We have used initials to protect the victim’s identity.

      . Section 97-3-65(4)(a) reads:
      Every person who shall have forcible sexual intercourse with any person, or who shall have sexual intercourse not constituting forcible sexual intercourse or statutory rape with any person without that person's consent by administering to such person any substance or liquid which shall produce such stupor or such imbecility of mind or weakness of body as to prevent effectual resistance, upon conviction, shall be imprisoned for life in the State Penitentiary if the jury by its verdict so prescribes; and in cases where the jury fails to fix the penalty at life imprisonment, the court shall fix the penalty at imprisonment in the State Penitentiary for any term as the court, in its discretion, may determine.