text:
    Suzette SMITH, Appellant v. The WAGGONERS TRUCKING CORPORATION and Antonio Watson, Appellees.
    No. 2009-CA-01876-COA.
    Court of Appeals of Mississippi.
    Aug. 30, 2011.

      Michael Richard Brown, Thandi Wade, for appellant.
    Leann W. Nealey, Arthur D. Spratlin Jr., Ridgeland, Jody Edward Owens II, for Appellees.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Suzette Smith’s vehicle rear-ended a non-party’s Chevrolet Suburban. The Suburban was stopped on Highway 82 in Leland, Mississippi, to allow defendant, Antonio Watson, to complete a parking maneuver of a tractor-trailer. Smith sued Watson and his employer Waggoners Trucking Corporation (Waggonners), alleging Watson’s negligence caused the injuries she sustained. The Washington County Circuit Court granted summary judgment in favor of Watson and Waggon-ers. Smith appealed.

¶ 2. We find the circuit court erred in determining: (1) Watson had the right of way under Mississippi’s driving statutes and, therefore, owed no duty to Smith, and (2) because Smith was speeding, she was the sole proximate cause of her injuries.

¶ 3. In addition to statutory duties, Watson owed approaching drivers, including Smith, a general duty of reasonable care. And we find that, under Mississippi’s comparative-negligence doctrine, a jury could find both Smith’s speeding and Watson’s alleged negligence legally contributed to cause her injuries and proportionally assign damages.

¶ 4. We therefore reverse summary judgment and remand this case to the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 5. On November 22, 2006, at approximately 11:45 p.m., Watson drove Waggon-ers’ truck, an empty tractor-trailer used to transport cars, into Leland. Following his normal routine, he began to park the truck at the then-existing business, “Yuppy Puppy.” Yuppy Puppy was located on the south side of Highway 82, on the very western edge Leland’s city limits.

¶ 6. Watson turned off of Highway 82 in to the first entrance of Yuppy Puppy. He then pulled out from a second entrance and again entered Highway 82, crossing all four lanes. At that point, he stopped the rig in the highway, then reversed course, and began backing the truck into his parking spot in the Yuppy Puppy lot.

¶ 7. Watson testified that at least four cars traveling on Highway 82 that night— two westbound and two eastbound— stopped in the highway to allow him to finish parking. One of the vehicles was Candace Holloway’s Suburban, which stopped in the right-hand eastbound lane.

¶ 8. A clear factual dispute exists over the length of time it took Watson to perform the maneuver. Watson testified it took only ten seconds. But Holloway’s husband, a passenger in the Suburban, testified his wife stopped their vehicle for three to five minutes while waiting on Watson to park.

¶ 9. According to Watson, as he cleared the westbound lanes, the two cars that had stopped resumed traveling. And the eastbound car to the left of Watson went around Watson and continued down the highway. While Watson was clearing Holloway’s lane, Smith’s Chevrolet Cobalt collided into the rear of Holloway’s Suburban, injuring Smith. The speed limit on Highway 82 had decreased from fifty-five to forty-five miles per hour when entering Leland. The Cobalt’s computer data indicated Smith had been traveling at fifty-seven miles per hour just before impact. The data also showed Smith did not apply her brakes until seconds before the collision. Smith testified she was not speeding and neither saw Watson’s truck nor Holloway’s vehicle until she hit Holloway’s Suburban.

¶ 10. Smith sued Watson and Waggon-ers claiming they negligently caused her resulting injuries. She alleged Watson violated both the statutory and common-law duties he owed to Smith. She further alleged Watson’s late-night parking maneuver created an unreasonably dangerous condition on Highway 82, of which Watson failed to warn her.

¶ 11. Watson and Waggoners moved for summary judgment on two grounds: (1) Smith could not, as a matter of law, prove Watson and Waggoners breached a duty, and (2) the undisputed facts showed Smith was solely responsible for her injuries. They claimed Mississippi Code Annotated sections 63-3-805 and 63-3-807 (Rev.2004) gave Watson an indefinite right of way because, when Watson pulled back onto Highway 82, no cars were close enough to present an “immediate hazard.” They also argued that by speeding and following the Suburban too closely, Smith was solely responsible for her injuries.

¶ 12. The circuit court mostly accepted Watson and Waggoners’ position and granted them summary judgment, dismissing Smith’s case with prejudice.

¶ 13. Smith timely appealed.

STANDARD OF REVIEW

¶ 14. We review a grant of summary judgment de novo, applying the same standard as the circuit court. Harrison v. Chandler-Sampson Ins., Inc., 891 So.2d 224, 228 (¶ 11) (Miss.2005). Mississippi Civil Procedure Rule 56 directs a trial court to render judgment “forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(C). Rule 56 requires that we view the evidence in the light most favorable to the party against whom the motion has been made. Harrison, 891 So.2d at 228 (¶ 11). If any triable issues of fact exist, we must reverse. Id.

¶ 15. As the comment to Rule 56(c) advises, “summary judgment is not a substitute for the trial of disputed fact issues.” M.R.C.P. 56 cmt. The purpose of summary judgment is to determine whether a triable issue exists but not to resolve that issue. Id.

DISCUSSION

¶ 16. In granting summary judgment, the circuit court offered a well-reasoned opinion. At first blush, summary judgment may appear appropriate in a car-wreck case where evidence shows the plaintiff was likely highly negligent in contributing to the accident. But Mississippi is a pure comparative-negligence state. And this case is complicated by the reasonableness of Watson’s near midnight cross-highway parking maneuver. Though there is no yardstick by which every case may be measured, Rule 56 does not permit trial courts to err on the side of the non-mov-ant. Burton v. Choctaw County, 780 So.2d 1, 8 (¶ 10) (Miss.1997). To survive summary judgment, Smith did not have to present an irrefutable case of Watson’s negligence. She merely had to present a triable case, which we find she did.

I. Watson’s Duty

¶ 17. As the plaintiff in a negligence claim, Smith bears the duty to prove the elements of (1) duty, (2) breach, (3) causation, and (4) damages. Fisher v. Deer, 942 So.2d 217, 219 (¶6) (Miss.Ct.App.2006) (citing Couch v. City of D’Iberville, 656 So.2d 146, 150 (Miss.1995)). The circuit court held Smith failed to make a sufficient showing to establish the existence of an essential element on which she bears the burden of proof at trial — namely the element of duty. See Borne v. Dunlop Tire Corp., Inc., 12 So.3d 565, 570 (¶ 16) (Miss.Ct.App.2009) (discussing the standard for granting summary judgment against a plaintiff). “Duty” is conformity “to a specific standard of conduct for the protection of others against the unreasonable risk of injury[.]” Donald v. Amoco Prod. Co., 735 So.2d 161, 174 (¶ 42) (Miss.1999) (quoting Meena v. Wilburn, 603 So.2d 866, 870 n. 5 (Miss.1992)). Whether a duty exists is a question of law. Id. at (¶ 43).

¶ 18. Watson and Waggoners urge that we find, as the circuit court did, that Watson owed no duty to Smith because undisputed evidence proved he had the right of way. Under Mississippi’s right-of-way statute:

The driver of a vehicle shall stop as required by this chapter at the entrance to a through highway and shall yield the right-of-way to other vehicles which have entered the intersection from said through highway or which are approaching so closely on said through highway as to constitute an immediate hazard. However, said driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on said through highway shall yield the right-of-way to the vehicle so proceeding into or across the through highway.

Miss.Code Ann. § 63-3-805. Section 63-3-807 makes applicable section 63-3-805 to drivers entering or crossing a highway from a private road or driveway. Miss. Code Ann. § 63-3-807.

¶ 19. Watson and Waggoners argue Watson had only a statutory duty, when entering Highway 82, to yield to cars that were an “immediate hazard.” Miss.Code Ann. §§ 63-3-805, -807. And because Smith approached Watson after other cars had already stopped and yielded, she did not present an immediate hazard.

¶ 20. The circuit court agreed with Watson and Waggoners. It determined the only material factual issue — whether there was an immediate hazard when Watson pulled onto Highway 82 — was not in dispute because Watson testified four other vehicles yielded to Watson. Relying on sections 63-3-805 and 63-3-807, and Jones v. Carter, the circuit court found Watson had no duty to yield the right of way to Smith. Thus, the circuit judge reasoned, as a matter of law, Watson owed no duty to Smith.

¶ 21. Smith argues the circuit court erred in finding Watson owed no duty because: (1) Watson owed a statutory duty under Mississippi Code Annotated section 63-3-903 (Rev.2004), which prohibits leaving a vehicle on a highway for an unreasonable amount of time; (2) a jury question exists whether Watson had the right-of-way under sections 63-3-805 and 807; and (3) Watson’s duty was not limited to ensuring he had the right-of-way at the beginning of his parking maneuver.

¶ 22. Regarding Smith’s first argument, Watson and Waggoners correctly point out section 63-3-903 only applies “outside of a business or residence district.” Miss.Code Ann. § 63-3-903(1); see Stong v. Freeman Truck Line, Inc., 456 So.2d 698, 704 (Miss.1984) (noting section 63-3-903 gives further requirements for standard of care when outside a business district). Although perhaps not as thriving as some business districts, the section of Highway 82 where Watson was parking was between two business. Thus, the circuit court committed no error in dismissing Smith’s claim Watson owed her a duty under this statute.

¶ 23. While we do not find Smith’s second argument dispositive, we do question the circuit court’s taking the “immediate hazard” question away from the jury. Whether an approaching vehicle presents an “immediate hazard” is a question of fact. See, e.g., Williams v. Weeks, 268 So.2d 340, 341 (Miss.1972); Shivel v. Ferguson, 259 So.2d 123, 125 (Miss.1972); Caves v. Smith, 259 So.2d 688, 691 (Miss.1972); Bush Constr. Co. v. Walters, 250 Miss. 384, 164 So.2d 900 (1964). Watson testified the entire parking maneuver took only ten seconds. Yet in that short time-frame, according to Watson, five cars approached the section of Highway 82 he was blocking. The fact four of those cars stopped does not itself necessitate a reasonable jury finding they presented no “immediate hazards.”

¶ 24. We find merit in Smith’s third argument. We agree that Smith need not prove a statutory violation to establish duty because Watson, like all drivers, owed a general common-law duty of reasonable care. Therefore, even if Watson had the right-of-way, according to sections 63-3-805 and -807, when he pulled out onto Highway 82, he still owed a duty of reasonable care during the entire parking maneuver.

A. The Common-law Duty of Ordinary Care

¶ 25. First and foremost, Mississippi has never held statutory driving laws supplant the common-law duty of ordinary care. See Knapp v. Stanford, 392 So.2d 196, 199 (Miss.1980) (holding the standard of care in car-wreck cases is the “proverbial question: What would a reasonably prudent person have done under the same or similar circumstances?”). Although this duty may be “further defined” by an applicable driving statute, our statutes do not replace or in any way supercede a motorist’s common-law “duty of exercising ordinary and reasonable care under the cir-cumstanees, to avoid injury to the person or property of another.” Ramage v. Kelly, 253 Miss. 582, 586, 176 So.2d 324, 325-26 (1965). Rather, the “duty to exercise due care exists independently of any statutory regulations!)]” Cont’l S. Lines v. Klaas, 217 Miss. 795, 823, 65 So.2d 575, 584 (1953); see Butler v. Ryder Truck Lines, Inc., 215 So.2d 707, 710 (Miss.1968) (holding that, even if the issue of violating a driving ordinance was not properly before jury, the jury was justified in finding the defendant driver “guilty of common law negligence in the backing of his automobile”).

¶ 26. In Klaas, the Mississippi Supreme Court rejected a bus driver’s argument that his only duty was to comply with applicable driving statutes. Klaas, 217 Miss, at 822, 65 So.2d at 584. Instead, the court held “where the driver of a motor vehicle is actually negligent in bringing his motor vehicle to a stop partially on the paved and main traveled portion of the highway, the fact that he may [have complied with the statute] does not relieve him from liability for injuries proximately caused by his negligence.” Id. at 823, 65 So.2d at 584. Indeed, failure to prove violation of a statute merely prevents a finding of negligence per se. See, e.g., Thompson v. Rizzo Farms, Inc., 27 So.3d 452, 455 (¶ 6) (Miss.Ct.App.2009) (citing Thomas v. McDonald, 667 So.2d 594, 596 (Miss.1995)).

¶ 27. We find the circuit court erred in determining the only duty Watson could have violated was his statutory duty to yield the right of way.

B. No Indefinite Right of Way

¶ 28. Further, in finding Watson owed no duty under sections 63-3-805 and -807, the circuit court erroneously limited its focus to the moment Watson pulled out onto Highway 82. Yet Smith alleges it was Watson’s sustained presence in the highway — not his initial pulling out — that created the unreasonable dangerous condition that caused her injuries. The circuit court should have considered whether the entire parking maneuver created a foreseeable risk to approaching drivers.

¶ 29. Sections 63-3-805 and -807 only illustrate who has the right of way when a vehicle seeks to “enter or cross” a highway or intersection. Neither addresses the right of way in the context of a vehicle that crosses a highway, stops, throws it in reverse, and then backs out. Miss.Code Ann. § 63-3-807. With this in mind, we find sections 63-3-805 and -807 cannot be used to grant an indefinite right of way. Nor do they remove a duty to exercise reasonable care, particularly when a vehicle is executing a parking maneuver near midnight that blocks four lanes of a major highway.

¶ 30. Watson and Waggoners cite Jones v. Carter, which held section 63-3-805 “does not require the driver of a vehicle who has already entered onto an intersection with a through highway to yield the right-of-way to an approaching vehicle which has neither entered the intersection nor approached so closely thereto from said through highway as to constitute an immediate hazard.” Jones, 192 Miss, at 609, 7 So.2d at 520. At most, Jones held that a driver acts reasonably when entering a highway when no vehicles are approaching. But neither Jones nor sections 63-3-805 and 63-3-807 squarely address the reasonableness of performing a parking maneuver in light of continual oncoming traffic.

¶ 31. The circuit court ignored the disputed amount of time Watson blocked Highway 82, finding it immaterial to whether Watson had a duty to Smith at the time he entered Highway 82. However, we find the duration and time of the maneuver goes to the reasonableness of Watson’s parking attempt. That Holloway and other vehicles stopped is a fact for the jury’s consideration when evaluating reasonableness, but it does not, as a matter of law, establish Watson owed no duty to Smith.

¶ 32. “[T]he important component of the existence of the duty is that the injury is ‘reasonably foreseeable[.]’ ” Rein v. Benchmark Const. Co., 865 So.2d 1134, 1143 (¶29) (Miss.2004) (quoting Lyle v. Mladinich, 584 So.2d 397, 399 (Miss.1991)). Viewing the evidence in Smith’s favor, as we must, we find it reasonably foreseeable that, even if no cars presented an “immediate hazard” when Watson pulled out, other cars would likely approach Watson’s tractor-trailer during the three to five minutes Holloway’s husband testified it took Watson to park. Counting Smith’s vehicle, at least five did.

¶ 33. The supreme court characterized a similar parking maneuver-backing a tractor — trailer across a highway into a loading dock — as “risking] the possibility of collision against the possibility of completing the dangerous turn within the few moments when the road appeared to be clear of traffic.” U.S. Indus., Inc. v. McClure Furniture Co. of Eupora, 371 So.2d 391, 394 (Miss.1979). Because the possibility of a collision with approaching cars was foreseeable, we find Watson owed the approaching vehicles the duty of reasonable care.

II. Comparative Negligence

¶34. “Mississippi is a pure comparative negligence state.” Coho Res., Inc. v. Chapman, 913 So.2d 899, 911 (¶ 36) (Miss.2005) (citing Miss.Code Ann. § 11 — 7— 15 (Rev.2004)). “Where negligence by both parties is concurrent and contributes to injury, recovery is not barred[J” Id. (citing Burton ex. rel Bradford v. Barnett, 615 So.2d 580, 582 (Miss.1993)). Instead, the plaintiffs recoverable damages are diminished by the proportion of her contributed negligence. Id.; see Tharp v. Bunge Corp., 641 So.2d 20, 24 (Miss.1994) (“Theoretically, if a plaintiff is ninety-nine (99%) percent negligent and the defendant is only one (1%) percent negligent, the plaintiff is still entitled to recover the one percent (1%) attributable to the negligence of the defendant.”). Thus, a plaintiff, like Smith, although likely highly negligent herself, may still recover from a defendant whose negligence contributed to her injuries. Chapman, 913 So.2d at 911 (¶ 36) (citing Blackmon v. Payne, 510 So.2d 483, 486 (Miss.1987)).

¶ 35. Both negligence and contributory negligence are questions for the jury. Up-church ex. rel. Upchurch v. Rotenberry, 761 So.2d 199, 204 (¶21) (Miss.2000) (quoting Miss.Code Ann. § 11-7-17 (Supp.1999)). And under Mississippi’s comparative-negligence doctrine, juries are permitted to consider whether “negligence by both parties is concurrent and contributes to injury[.]” Chapman, 913 So.2d at 911 (¶ 36).

¶ 36. We find the circuit court improperly resolved triable issues of causation by finding Smith’s speeding — which it determined was an undisputed fact — and her testimony that she did not see Holloway’s vehicle proved Smith was the sole proximate cause of her injuries. Although computer data showed Smith was traveling at fifty-seven miles per hour in a forty-five mile-per-hour zone, Smith disputed she was speeding. See Butler, 749 So.2d at 326 (¶ 49) (finding it is the jury’s role to resolve disputed testimony). Smith did not contest the fact she failed to see Holloway and hit her brakes in time to avoid the collision. But she did dispute why this was so, claiming poor visibility and the insufficient warning measures by Watson. See Duckworth v. Warren, 10 So.3d 433, 439 (¶ 16) (Miss.2009) (finding summary judgment was error because “[e]ven some of the undisputed facts before this Court are susceptible to more than one interpretation” and, therefore, must be submitted to the jury for resolution).

¶ 37. Even assuming Smith’s speeding was undisputed, the circuit court erred in deciding as a matter of law her speeding was the sole proximate cause of her injuries. In Anderson v. Eagle Motor Lines, Inc., 423 F.2d 81, 83 (5th Cir.1970), the United States Court of Appeals for the Fifth Circuit, applying Mississippi law, affirmed a jury’s verdict against a truck driver who blocked both lanes of a highway while performing a three-point turn before dawn. The driver of the approaching car was speeding and did not brake before crashing into the stopped truck. Id. at 82. The Fifth Circuit held that “even if the jury accepted [the defendant truck driver’s] version of the accident and found that Anderson was contributorily negligent in speeding or failing to slow down or to do anything to avoid the accident, there would be no inconsistency” in finding the truck driver was the sole proximate cause of the accident by negligently “blocking a heavily traveled state highway, with a dangerously long rig, at a time in the early morning when visibility was limited.” Id. at 83. This was because “issues of negligence and contributory negligence are particularly susceptible of jury determination.” Id. See also K.M. Leasing, Inc. v. Butler ex. rel. Butler, 749 So.2d 310, 326 (¶ 49) (Miss.Ct.App.1999) (finding evidence that plaintiff did not apply his breaks until right before impact did not prevent reasonable jury from finding defendant truck driver was negligent).

¶ 38. Evidence of Smith’s speeding and her failure to brake sooner, along with her alleged violation of Mississippi Code Annotated section 63-3-619(1) (Rev.2004), which prohibits tailgating, are facts for the jury to consider when determining whether Watson and/or Smith were negligent and, if so, in what proportion. See Spears v. Miss. Power & Light Co., Inc., 562 So.2d 107, 109 (Miss.1990) (reversing a directed verdict for the defendant, finding “whether the plaintiff was negligent and the extent of his negligence is also a question which ought to have been submitted to the jury”). This evidence does not, however, at the summary-judgment stage, take away the question of Watson’s comparative negligence from the jury.

¶ 39. Applying the comparative-negligence doctrine, we find a reasonable jury could potentially find Watson’s alleged acts caused or contributed to Smith’s injuries. Therefore, the circuit court erred in (1) taking away the issue of proximate cause from the jury and (2) finding evidence of Smith’s speeding proved Smith was the sole proximate cause of her injuries.

CONCLUSION

¶ 40. We cannot say that no reasonable juror could find Watson was at least minimally contributorily negligent to Smith’s injuries. Contrary to the circuit court’s holding, Watson owed Smith the duty of reasonable care. And the jury must consider whether Watson’s performing a parking maneuver across Highway 82 late at night was unreasonable, given the length of time it took; the number, speed, and proximity of approaching cars; and the visibility of his truck. Of course, the jury must also consider Smith’s actions and assess whether she negligently contributed to her injuries. In the event both parties are deemed negligent, damages should be assessed proportionately. We reverse the award of summary judgment in favor of Watson and Waggoners and remand this case to the circuit court.

¶ 41. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, ROBERTS AND RUSSELL, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Jones v. Carter, 192 Miss. 603, 609, 7 So.2d 519, 520 (1942).


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    In the Matter of the Petition of Wesley WILLIAMS and Lindsey Williams for the Adoption of the Minor Child Described in the Petition: Dale Williams and Cathy Williams, Appellants v. Wesley WILLIAMS and Lindsey Williams, Appellees.
    No. 2010-CA-00656-COA.
    Court of Appeals of Mississippi.
    Sept. 13, 2011.
    Matthew Daniel Wilson, attorney for appellants.

      Marc Darren Amos, attorney for appel-lees.
    Before IRVING, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Dale Williams and Cathy Williams appeal the March 29, 2010, order of the Lowndes County Chancery Court which terminated Dale and Cathy’s parental rights with respect to six minor children. On appeal, Dale and Cathy argue that the chancellor erred in denying their motion to appoint indigent counsel to represent them at the hearing. Finding no error, we affirm the chancellor’s judgment.

FACTS

¶ 2. On June 3, 2009, Wesley and Lindsey filed a petition in Lowndes County Chancery Court to adopt their nieces and nephews: Sarah Williams, born March 29, 1996; Michael Williams, born May 16, 1998; Paul Williams, born April 16, 2008; Jamie Williams, born July 12, 2004; Rachel Williams, born August 15, 2005; and Jimmy Williams, born September 23, 2006. The appellants, Dale and Cathy Williams, are the biological parents of the children. Wesley and Dale are brothers.

¶ 3. On October 8, 2009, Dale and Cathy filed a response opposing the petitions for adoption, thereby necessitating a hearing to determine whether or not to terminate Dale and Cathy’s parental rights. On December 22, 2009, the chancellor appointed Rebecca Younger as the guardian ad litem. The chancellor conducted a hearing on March 23 and March 24, 2010. Dale and Cathy acted pro se, but they requested that the court appoint them an attorney because of their indigence. ■ Dale also requested a change of venue so that he could compel the attendance of witnesses from Georgia, where the original guardianship proceedings were held. The chancellor denied their requests and proceeded with the hearing.

¶ 4. At the hearing, Dale and Cathy reported a combined income of approximately $17,000 in 2007, and Dale testified that he made “a little bit more” than that amount in 2008. The record reflects that no tax returns or W2s were provided to prove any particular level of income. Dale stated that he and Cathy owned no assets of any worth. Dale also testified that Cathy did not have a job, but that she occasionally tried to sell scrap metal to help with the family’s expenses. Dale testified that Cathy lacked the ability to work full time because she had to care for Johnny, the couple’s infant. Dale provided pay stubs for January 2009 and February 2009 from his job at John’s Auto & Truck in Jonesboro, Georgia, where he works as a mechanic. The pay stubs showed that in January, Dale had been paid $2,000, and in February, he earned $1,300. Dale explained that he is “supposed to make $600 every week,” but that due to a lack of business, he had not been earning that amount. Dale testified that he works from 8:00 a.m. until 5:00 p.m., and he stated that he is too tired by the time he gets home from his job as a mechanic to consider working a second job to help earn money to pay for an attorney. The chancellor ultimately found that Dale and Cathy possessed the resources and ability to obtain counsel, but had failed to do so. Therefore, the chancellor declined to appoint counsel for Dale and Cathy, and the chancellor proceeded with the hearing.

¶ 5. The chancellor admitted into evidence court records from Georgia which pertained to Dale and Cathy’s history with the Clayton County, Georgia, Department of Family and Children Services (CCDFCS) and Juvenile Court. Pursuant to a June 1, 2007 order of the Juvenile Court of Clayton County, Georgia, Wesley and Lindsey had been granted legal custody of all eight of the minor children. Wesley and Lindsey presented evidence showing that prior to the entry of the custody order, all eight of the children had been in the custody of the CCDFCS for the majority of the time since May 24, 2006. Wesley and Lindsey also presented evidence that the CCDFCS had an extensive history with Dale and Cathy’s failure to properly care for the children, their substance abuse, and the sexual abuse of the children. Dale and Cathy both testified at the hearing, and both denied all allegations of abuse.

¶ 6. During the hearing, testimony was presented by various expert witnesses regarding the severe sexual, mental, and physical abuse that the children suffered at the hands of Dale and Cathy, and the physical and emotional effect on the children. Macki Smith, a former special instructor with the Mississippi Department of Health’s Early Intervention program, provided testimony concerning Jimmy and Rachel’s delayed development. Smith also testified that she witnessed Wesley and Lindsey working with the children, and she stated that Wesley and Lindsey continued with the suggested therapy treatments for the children throughout the week. Smith stated that she observed positive changes and progress in Jimmy and Rachel’s developmental skills while in Wesley and Lindsey’s care.

¶ 7. Charlotte Teague, a licensed certified mental health therapist, provided testimony concerning Michael and Sarah’s mental state. Teague stated that when Sarah first came to see her, she was depressed, withdrawn, and having trouble in school. Teague also stated that Sarah displayed problems maintaining normal hygiene. Teague relayed that Sarah had informed her during a counseling session that much of her sexual abuse had occurred while she was in the bathtub, and as a result, she disliked bathing and disliked anyone touching her body. Teague testified that both children showed signs of past sexual abuse. Teague testified that Wesley and Lindsey had been very involved in Sarah and Michael’s counseling, and she observed improvements in the children’s mental health, grades, and self confidence while in Wesley and Lindsey’s care.

¶ 8. Dr. Pamela Sykes, a general pediatrician, provided testimony concerning the health of the children as well as their respective genetic abnormalities. The guardian ad litem also provided testimony from her report regarding what the Williams children had relayed to her regarding their unsanitary living condition while in the custody of their biological parents, as well as the horrific sexual abuse they suffered while living with Dale and Cathy in Georgia. The guardian ad litem informed the chancellor that Jordan and Kelly, two of the Williams children who were not the subject of the adoption petition, were currently institutionalized due to their severe mental and emotional problems stemming from abuse by Dale and Cathy. The guardian ad litem testified that the rest of the children were currently thriving and doing well in Wesley and Lindsey’s custody.

¶ 9. After the hearing, the chancellor entered an opinion and judgment ordering the termination of Dale and Cathy’s parental rights as to each of the six children, and granted full custody to Wesley and Lindsey. This appeal followed.

STANDARD OF REVIEW

¶ 10. On appeal, this Court’s scope of review of the findings of a chancellor in domestic relations case is limited. Goodin v. Dep’t of Human Servs., State of Miss., 772 So.2d 1051, 1054 (¶ 6) (Miss.2000). Further, “[t]he findings of the chancellor will be overturned on appeal only if ‘manifestly wrong, clearly erroneous, or if the chancellor applied an erroneous legal standard.’ No finding will be disturbed or set aside if supported by ‘substantial, credible evidence.’ ” Id. (internal citations and quotation omitted). However, whether Dale and Cathy received due process is a question of law, which this Court will review de novo. J.C.N.F. v. Stone County Dep’t. of Human Servs., 996 So.2d 762, 770 (¶ 27) (Miss.2008).

DISCUSSION

¶ 11. Dale and Cathy’s sole assignment of error on appeal asserts that the chancellor violated their right to due process by failing to appoint counsel to represent them throughout the termination proceedings. Dale and Cathy cite Lassiter v. Department of Social Services of Durham County, North Carolina, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) to support their assertion that they were entitled to court-appointed counsel throughout the proceedings.

¶ 12. In Lassiter, the United States Supreme Court addressed the issue of whether an indigent parent is entitled to appointment of counsel in a termination of parental rights proceeding under the Due Process Clause of the Fourteenth Amendment. Lassiter, 452 U.S. at 21-22, 101 S.Ct. 2158. The Supreme Court ultimately upheld the trial court’s termination of parental rights where the trial court failed to appoint counsel for an indigent parent. Id. In upholding the trial court’s decision, the Supreme Court specifically emphasized that the “the petition to terminate ... parental rights contained no allegations of neglect or abuse upon which criminal charges could be based; no expert witnesses testified; the case presented no specially troublesome points of law; [and] the presence of counsel could not have made a determinative difference for petitioner.” Id. at 19,101 S.Ct. 2158.

¶ 13. In K.D.G.L.B.P. v. Hinds County Department of Human Services, 771 So.2d 907, 910 (¶¶ 11-12) (Miss.2000), the Mississippi Supreme Court discussed Lassiter in a case with similar facts to the case at bar. The supreme court in K.D.G.L.B.P. stated that “[o]ne of the most important factors to be considered in applying the standards for court appointed counsel is whether the presence of counsel would have made a determinative difference.” Id. at (¶ 12). Further, relying on the Supreme Court’s holding in Lassiter, our supreme court stated that the appointment of counsel in termination proceedings is wise but not mandatory, and courts should determine the need for court-appointed counsel on a case-by-case basis. Id.

¶ 14. The record before us reflects that the chancellor inquired extensively regarding Dale and Cathy’s finances before commencing the adoption proceedings. As stated, Dale and Cathy reported a combined income of approximately $17,000 in 2007, but they provided no tax returns to prove any particular level of income. Dale testified that he made “a little bit more” than that amount in 2008. Dale also testified that Cathy possessed no job, but that she occasionally tried to sell scrap metal to help with the family’s expenses. Dale testified that Cathy could not work full time because she bore the responsibility of caring for Johnny, the couple’s infant. Dale provided pay stubs from his job as a mechanic. His pay stubs showed that in January, Dale earned $2,000, and in February, he earned $1,300. Dale explained that he was “supposed to make $600 every week,” but that due to a lack of business, he had not been earning quite that amount. Dale testified that he is too tired by the time he gets home from his job as a mechanic to consider working a second job to help earn money. Dale stated that he could have probably afforded an attorney if he had not been ordered to turn over his $1,700 income tax return to Wesley and Lindsey for child support.

¶ 15. Dale testified that he and Cathy tried to find a lawyer to represent them pro bono, but had no success. Dale also admitted that he could have asked his church for financial help to hire an attorney, but he stated that he felt like “this is something that I should do. I should be able to do it, and I should do it. I shouldn’t go beg to the church. I shouldn’t go beg to Uncle Sam.” After hearing extensive testimony from Dale regarding his and Cathy’s finances, the chancellor held that “although the [Williams] made an effort, I believe that they had resources and could have obtained a lawyer by now if they chose to. So I’m going to overrule your motion for a continuance and your motion to appoint counsel for you.” After reviewing the transcript, we find that the chancellor’s findings regarding Dale and Cathy’s ability and resources to hire legal counsel are supported by substantial, credible evidence.

¶ 16. Dale and Cathy, however, argue that the Lassiter factors support their need for court-appointed counsel. In turning to the first factor, whether the petition to terminate parental rights contained allegations of neglect or abuse upon which criminal charges could be based, Dale and Cathy claim that the petition for adoption states that the children experienced sexual abuse and horrific neglect while in the care of their parents, and they argue that if such accusations are corroborated and substantiated, then Dale and Cathy could face criminal charges. Therefore, in the face of potential criminal charges and jail time, they further argue that they needed legal counsel at the termination of parental rights hearing. However, the record reflects that the allegations of Dale and Cathy’s criminal conduct occurred in the State of Georgia and that Mississippi possessed no jurisdiction to prosecute any offenses arising in Georgia. We note that Mississippi Code Annotated section 93-27-109(1) (Rev.2004) provides that:

A party to a child custody proceeding, including a modification proceeding, or a petitioner or respondent in a proceeding to enforce or register a child custody determination, is not subject to personal jurisdiction in this state for another proceeding or purpose solely by reason of having participated, or of having been physically present for the purpose of participating, in the proceeding.

Moreover, the record reflects no pending charges in Georgia and also that a Georgia court had already deemed Dale and Cathy unfit parents after removing the children from their home. Thus, no Mississippi court possesses personal jurisdiction over Dale or Cathy with respect to any allegations of. criminal behavior that occurred in Georgia and had no subject matter jurisdiction over offenses occurring solely in another state. Additionally, upon our review of the petition for adoption, we find the petition contains no allegations that Dale or Cathy abused the children.

¶ 17. Regarding the second Lassiter factor, Dale and Cathy assert that the only direct testimony offered by Wesley and Lindsey was from their expert witnesses, which included Smith, a former special instructor with the Mississippi Department of Health’s Early Intervention program; Teague, a licensed certified mental health therapist; and Dr. Sykes, a pediatrician. Dale and Cathy claim that the lack of counsel to assist them prejudiced their ability to represent their interests because they needed an attorney to scrutinize the credentials of the expert witnesses and file motions in limine as to the experts’ conclusions. However, Wesley and Lindsey point out that the Clayton County Juvenile Court previously determined that Dale and Cathy were unfit parents. Therefore, the experts’ testimony was primarily admitted to justify Wesley and Lindsey’s adoption of the children and the welfare of the children while in their care. Indeed, we note that the testimonies of Smith, Teague, and Dr. Sykes all mainly focused on the improvements of the children’s mental, physical, and emotional health while in the care of Wesley and Lindsey.

¶ 18. Next, Dale and Cathy argue that they should have been appointed legal counsel because their case presented specially troublesome points of law. Dale and Cathy specifically allege that Wesley and Lindsey violated numerous rules of discovery, including the failure to designate their expert witnesses sixty days prior to the hearing. Dale and Cathy assert that if discovery procedures are not followed during a termination of parental rights proceeding, the aggrieved party would necessarily be deprived of due process in violation of the Fourteenth Amendment.

¶ 19. Wesley and Lindsey argue that none of the procedural issues mentioned by Dale and Cathy were especially troublesome, and Wesley and Lindsey again assert that the expert witnesses testified about their own factual observations and the current health and well-being of the children while in their care to evaluate prospective placement of the children. The expert witnesses were not evaluating or testifying regarding Dale and Cathy’s fitness as parents. We agree that this case did not present any troublesome points of law, but rather focused on the well-being and general welfare of the children while in Wesley and Lindsey’s care.

¶ 20. In turning to the final factor, Dale and Cathy submit that having an attorney would have made a determinative different in the outcome of the case. Dale and Cathy claim that an attorney could have (1) advised them not to testify so as to preserve their rights under the Fifth Amendment, (2) objected to the testimony of the expert witnesses since they were not designated, (3) objected to the evidence derived from subpoenas duces tecum since they were issued beyond the discovery period, (4) objected to the authenticity of documents from the Georgia courts, and (5) objected to the hearsay testimony of the guardian ad litem and other witnesses.

¶ 21. However, as stated, the record reflects that the Clayton County Juvenile Court had already adjudicated Dale and Cathy to be unfit parents. The bench order granting Wesley and Lindsey legal custody of the Williams children states that “[r]e-unification efforts would be detrimental to the [children] and that it is best suited for the [children] to be placed in the legal/custody permanent guardianship of Wesley and Lindsey Williams until the child reaches the age of majority.” Mississippi Rule of Evidence 901(b)(7) allows the admission of public records upon proof that the public recorded documents are from the public office where items of that nature are kept. Since the chancellor requested the Clayton County Juvenile Court records from the Georgia Department of Family and Children’s Services office, and since these records constituted public records pursuant to Rule 901(b)(7), we find no abuse of discretion for the chancellor to admit those documents into evidence. See McIlwain v. State, 700 So.2d 586, 590-91 (¶¶ 17-22) (Miss.1997).

¶ 22. We also note that the record reflects that the chancellor fully explained the process of the proceedings to both Dale and Cathy. The record reflects that both parties testified and fully participated in the hearing. During the hearing, Dale objected to various statements and evidence and he also cross-examined witnesses.

¶23. Additionally, the evidence and testimony presented at the termination hearing overwhelmingly supported the chancellor’s decision to terminate Dale and Cathy’s parental rights. The chancellor found, after reviewing court documents from Georgia and hearing testimony, that Dale and Cathy have rarely contributed financially to the care, support, or maintenance of the children since June 2007. According to the guardian ad litem’s testimony and report, the children shared with her that they were repeatedly sexually abused by their biological parents and lived in unsanitary conditions. The guardian ad litem testified that the children showed no interest in returning to the custody of their biological parents. Smith and Teague also corroborated that the children had relayed numerous instances of horrific sexual abuse, and Smith and Teague also stated that the children exhibited detrimental mental, physical, and emotional effects from the abuse. The guardian ad litem opined that reunification with the biological parents would be so detrimental to the children that they could possibly never recover.

¶ 24. After reviewing the record, we find that the evidence supporting the chancellor’s decision to terminate Dale and Cathy’s parental rights was so overwhelming that the presence of counsel would not have changed the outcome of the trial. As a result, we find that Dale and Cathy’s due process rights under the Fourteenth Amendment were not violated by the chancery court when it did not appoint them counsel in the parental rights termination hearing. Therefore, the judgment of the Lowndes County Chancery Court is affirmed.

¶ 25. THE JUDGMENT OF THE LOWNDES COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . Because of the confidential nature of this case and in order to protect the privacy of the minor children involved, we have used fictitious names for the parties and for the minor children.

      . In addition to the six children named in this appeal, the appellants also have three additional children, who are not the subjects of this proceeding.

      . Cathy also testified that she and Dale spend approximately $600 a month on cigarettes and energy drinks.


author: ROBERTS, J.,

text:
    Stevenson FORD, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KP-00278-COA.
    Court of Appeals of Mississippi.
    Sept. 13, 2011.

      Stevenson Ford, appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before GRIFFIS, P.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. A jury sitting before the Washington County Circuit Court found Stevenson Ford guilty of murder. Ford was sentenced to life in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, Ford appeals pro se and raises fourteen issues. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Ford’s conviction was set into motion by events that occurred in Greenville, Mississippi, during the early morning hours of September 7, 2008. Ford and several of his friends had been at a nightclub called Southern Whispers, where some of his friends were involved in an altercation with Marvin Stuckett and some of Stuckett’s friends.

¶ 3. The jury’s verdict supports the following version of events. After they left Southern Whispers, Ford and two others were riding in Jessie Lee’s car. Lee was following Freddie Harris. Ford’s cousin, Daner Ford, was riding with Harris. Ford and his friends originally intended to go to an “after-hours” nightclub. When Harris made an unexpected u-turn, Ford told Lee to follow Harris. Lee complied.

¶ 4. Lee followed Harris to Stockton Drive, where Ford told Lee to pull over near Stuckett’s house. Again, Lee complied. Daner had gotten out of Harris’s car, which was parked on the opposite end of the 200 block of Stockton Drive. Armed with a rifle, Daner was walking toward Lee’s car. Ford and two friends, Ken Johnson and Jonathan Robinson, all got out of Lee’s car. Lee remained inside his car. According to Lee, he then heard multiple gunshots. Lee saw Ford firing a pistol.

¶ 5. After the gunshots had ceased, Ford, Robinson, and Johnson all got back into Lee’s car. Daner also got into Lee’s car. According to Lee, Daner was upset. Daner’s head was bleeding because he had been grazed by a gunshot. Lee later testified that Daner told Ford that Ford had nearly killed him.

¶ 6. Meanwhile, Stuckett’s friend, Chris York, was on his way to Stuckett’s house. York saw Harris’s car and Lee’s car leaving Stockton Drive. York was able to see Ford, Daner, and Lee in Lee’s blue Chevrolet Caprice. He believed that there might have been other people in Lee’s car, but he was not able to distinguish who else was with Lee. York continued to Stuckett’s house. When he arrived, he found Stuck-ett’s car, but he was not able to find Stuckett.

¶ 7. Within a short amount of time, Stuckett was found lying under his neighbor’s carport. Stuckett was alive, but he had been shot twice. One of the bullets injured Stuckett’s vocal cords, so he was not able to speak. Although he was rushed to Delta Regional Medical Center (DRMC), Stuckett was not able to survive.

¶8. Officers with the Greenville Police Department found spent cartridges and unfired ammunition outside Stuckett’s house. Some were fired from a rifle that fired 7.62 x 39 mm ammunition. Others were fired from a 9-mm pistol. However, Dr. Thomas Deering’s autopsy indicated that the fatal bullet was fired from a .38-caliber pistol. Detective Erica Brown’s investigation led authorities to Ford, Dan-er, Robinson, Harris, and Lee. They were all indicted and charged with murdering Stuckett, but Ford was tried separately.

¶ 9. On November 16, 2009, Ford went to trial. Ford presented a defense based on his alibi that he was not with any of the co-defendants when Stuckett was killed. According to Ford’s witnesses, Latasha Ford and Dave Smith, he could not have shot Stuckett because, except for a seven-minute period, Ford was with one of them during the night that Stuckett was murdered. For brevity’s sake, specific events that occurred during Ford’s trial will be discussed in greater detail as necessary in the analysis portion of this opinion. As previously mentioned, the jury found Ford guilty of murder. Aggrieved, Ford appeals.

ANALYSIS

I. JURY INSTRUCTIONS

A. ACCOMPLICE INSTRUCTION

¶ 10. Ford claims the circuit court should have granted a cautionary instruction “in regards to the testimony of the witnesses who had been charged with an offense or the same offense.” We interpret Ford to mean that the circuit court should have granted an accomplice instruction regarding Lee’s testimony. According to Ford, “[s]uch instruction was refused by the trial court.” Ford does not specify which instruction he has in mind, but it is of no moment because Ford is mistaken.

¶ 11. The circuit actually granted Ford’s request for a cautionary accomplice instruction. Specifically, the circuit court granted instruction D-16, which states:

In this case the State called as one of its witnesses, Jessie Lee, an alleged accomplice. The Court instructs the [j]ury that the law looks with suspicion and distrust on the testimony of an alleged accomplice. You should keep in mind that such testimony is always to be received with caution and weighed with great care. You should never convict a[d]efendant upon the unsupported testimony of an alleged accomplice unless you believe that testimony beyond a reasonable doubt.

A trial court has considerable discretion regarding the form and substance of jury instructions. Fulgham v. State, 46 So.3d 315, 323 (¶ 17) (Miss.2010). As we review Ford’s claim, we must read the instructions as a whole. Id. To demonstrate that the circuit court abused its discretion in refusing to grant an instruction, an appellant must show that the instruction he requested was (1) a correct statement of the law, (2) not substantially covered by other instructions, and (3) so important that the circuit court’s failure to instruct the jury on that issue seriously impaired the appellant’s ability to present his defense. Id.

¶ 12. Because the circuit court granted an accomplice instruction, we find no merit to Ford’s claim that the circuit court should have granted another unspecified accomplice instruction. A circuit court may refuse an instruction that is covered fairly elsewhere in the granted instructions. Poole v. State, 826 So.2d 1222, 1230 (¶27) (Miss.2002). Ford was not entitled to cumulative instructions. Therefore, we find no merit to Ford’s claim under this heading.

B. PROFFERED INSTRUCTION D-4

¶ 18. Next, Ford claims the circuit court erred when it refused his proffered jury instruction designated as instruction D-4. Proffered instruction D-4 states:

The Court instructs the jury that the accused ... is presumed to be wholly innocent of the whole crime charged. He is not required to prove himself innocent or put any evidence in at all upon the subject. In considering testimony in the case, you must look at the testimony and view it in light of the presumption which the law clothes the accused with, that he is wholly innocent, and it is the presumption that abides with him throughout the trial of [the] case until the evidence convinces you to the contrary beyond a reasonable doubt.

Although the circuit court refused proffered instruction D-4, the circuit court instructed the jury according to instruction CCR-8, which states:

The mere fact that a person has been charged with a crime and has been indicted by a grand jury is no indication whatever that he is guilty of the crime. In fact, the law presumes [that] every person charged with the commission of a crime to be innocent at the outset of the trial. This presumption of innocen[c]e stays with the [defendant and prevails unless, and until, it is overcome by evidence which satisfies you of the [defendant's guilt beyond a reasonable doubt. The burden of proving the [d]efendant guilty of every material element of the crime is upon the State of Mississippi. Before you can return a verdict of guilty, the State must prove to your satisfaction beyond a reasonable doubt that the [defendant is guilty. The defendant is not required to prove his innocence.

As stated previously, a criminal defendant is not entitled to an instruction that is covered elsewhere by another instruction. Poole, 826 So.2d at 1230 (¶ 27). Instruction CCR-8 is substantially the same as proffered instruction D-4. Accordingly, the circuit court acted within its discretion when it denied proffered instruction D-4. As with Ford’s first argument under this heading, we find no merit to Ford’s second argument.

II. INDICTMENT

¶ 14. In this issue, Ford claims that the indictment against him is illegal. Ford’s reasoning is based on the fact that Count I of the indictment included a murder charge and a charge that Ford qualified for enhanced sentencing because he used or displayed a firearm during the commission of the murder. To be precise, the indictment against Ford states:

That STEVENSON FORD ... on or about the 7th day of September, 2008, in Washington County, did unlawfully, willfully, feloniously, and of their malice aforethought, then and there kill and murder, one Marvin Stuckett, a human being; and,
That the said STEVENSON FORD ... did willfully, unlawfully!,] and feloniously use or display a firearm at the time of the commission of the offense of [m]ur-der, in violation of Section 97-37-37(1) of the Mississippi Code of 1972, as annotated and amended[.]

According to Ford, the indictment was illegal because it contained two charges within the same count. In other words, Ford argues that he was not properly charged under Mississippi Code Annotated section 99-7-2 (Rev.2007) in that “count one actually contains two counts.”

¶ 15. Ford is correct that “[w]here two (2) or more offenses are properly charged in separate counts of a single indictment, all such charges may be tried in a single proceeding.” Miss.Code Ann. § 99-7-2(2). Ford’s misunderstanding is based on the difference between a charge versus a sentence enhancement. Mississippi Code Annotated section 97-37-87(1) (Supp.2010) provides:

Except to the extent that a greater minimum sentence is otherwise provided by any other provision of law, any person who uses or displays a firearm during the commission of any felony shall, in addition to the punishment provided for such felony, be sentenced to an additional term of imprisonment in the custody of the Department of Corrections of five (5) years, which sentence shall not be reduced or suspended.

Section 97-37-37(1) “is clearly a sentence enhancement and does not set out separate elements of the underlying felony.” Mayers v. State, 42 So.3d 33, 45 (¶ 50) (Miss.Ct.App.2010). Stated differently, by claiming that Ford qualified for enhanced sentencing as set forth in section 97-37-37(1), the prosecution did not seek to prove that Ford was guilty of a separate offense. The enhancement charge was not a charge of a separate crime. Instead, the prosecution sought to increase the penalty that Ford faced in the event that he was found guilty of murder. Accordingly, the indictment is not illegal. There is no merit to this issue.

III. INCONSISTENT VERDICTS

¶ 16. Ford’s argument under this heading is based on the same fundamental misunderstanding of the nature of the charges in the indictment as discussed in the previous issue. Here, Ford argues that the jury must have been confused, because it found him guilty of murder, but it found that he did not qualify for enhanced sentencing pursuant to section 97-37-37(1). According to Ford, because the jury did not find that he qualified for enhanced sentencing pursuant to section 97-37-37(1), the jury was obligated to find him not guilty of murder.

¶ 17. However, Ford is procedurally barred from arguing this issue because he did not cite any relevant legal authority. Walker v. State, 913 So.2d 198, 222 (¶ 73) (Miss.2005). Pro se litigants are afforded some leniency, but they must be held to the same substantial standards of litigation conduct as members of the bar. Sumrell v. State, 972 So.2d 572, 574 (¶ 6) (Miss.2008). This includes the obligation to support his argument on appeal with citation to relevant legal authority. See M.R.A.P. 28(a)(6). Furthermore, Ford failed to raise this issue at trial. It is, therefore, procedurally barred on appeal. Walker, 913 So.2d at 217 (¶ 49).

IV. RIGHT TO DECLINE TO TESTIFY

¶ 18. Ford claims the circuit court failed to inform him properly of his right to decline to testify. Aside from that blanket statement and a brief recitation of the general law on the subject, Ford also states that he “should have been fully appraised of his right to not testify by the trial court before he was permitted to take the witness stand.”

¶ 19. However, the record reflects that Ford was informed of his right to choose not to testify during the following exchange:

[DEFENSE COUNSEL]: Steve, you and I have talked about your right to testify and your right not to testify?
[FORD]: Yes.
Q: And you understand the ramifications, and I told you if you do testify— and I’ve kind of given you an idea of what the State is going to probably do or try to do. Do you understand all of that?
A: Yes.
Q: And you understand that you have the right not to testify?
A: Yes.
Q: And you understand that if you decided not to testify that I would ask [the circuit judge] to instruct the jury, as she’s already said, that that could not be used against you. You understand that?
A: Yes, sir.
Q: All right. But if you do testify, then it becomes a credibility question between what you say and what these witnesses say. You put yourself before the jury for them to decide if you’re telling the truth or not. Do you understand?
A: Yes, sir.
Q: All right. And having gone through that with you, is it your decision to testify or not testify?
A: Yeah, I’ll testify.
Q: You want to testify?
A: Yes.
THE COURT: All right. I don’t believe there is anything further that I need to add to that. He has explained that that’s your right and that the jury should not hold it against you if you do not, and he’s explained to you practically — when I say practically, I mean the way it happens. With Attorney Lee being a trial attorney in this district, what his assessment of the way jurors perceive the fact that you do testify or not testify.
FORD: Yes, ma’am.
THE COURT: Do you have any questions of the court?
FORD: No ma’am.

¶ 20. In Culberson v. State, 412 So.2d 1184, 1186-87 (Miss.1982), the Mississippi Supreme Court stated as follows:

We suggest to the trial judges of the state that, in any case where a defendant does not testify, before the case is submitted to the jury, the defendant should be called before the court out of the presence of the jury, and advised of his right to testify. If the defendant states he does not wish to testify, he may not be forced to take the stand; however, if he states that he wants to testify he should be permitted to do so. A record should be made of this so that no question about defendant’s waiver of his right to testify should ever arise in the future.

Ford was informed of his right to choose whether he wanted to testify. Ford was also informed that, if he opted to forego testifying, the jury would have been instructed that it must, not hold his silence against him. Fully informed of his rights, Ford chose to testify. We find no merit to this issue.

V. STUCKETT’S CRIMINAL RECORD

¶ 21. Ford claims the circuit court erred when it refused to allow him to introduce Stuckett’s criminal record. However, the record does not indicate that Ford ever attempted to have Stuckett’s criminal record introduced into evidence. Because the circuit court did not have the opportunity to consider this issue, it is proeedurally barred. Latiker v. State, 918 So.2d 68, 75 (¶ 17) (Miss.2005).

VI. CHANGE OF VENUE

¶ 22. Next, Ford claims the circuit court should have changed the venue. Ford reasons that a change of venue was warranted because “the Chief of Police ... was actually the grand father [sic] of the deceased.” Ford raises this issue for the first time on appeal. Consequently, this issue is procedurally barred. Latiker, 918 So.2d at 75 (¶ 17).

VII. RECUSAL

¶ 23. Under this heading, Ford argues that the circuit judge should have recused herself because she was a friend of Stuckett’s grandfather. The record contains no indication that the circuit judge was a friend of Stuckett’s grandfather. What is more, Ford never moved for recu-sal. Therefore, this issue is procedurally barred. Latiker, 918 So.2d at 75 (¶ 17).

VIII. SUFFICIENCY OF THE EVIDENCE

¶ 24. Ford argues that the jury’s verdict was not supported by sufficient evidence. According to Ford, the prosecution failed to prove that he killed Stuckett. Ford reasons that the circuit court erred when it denied his motion for a judgment notwithstanding the verdict (JNOV).

¶ 25. “A motion for a [JNOV] ⅛ a challenge to the sufficiency of the evidence.” Gilbert v. State, 934 So.2d 330, 335 (¶ 9) (Miss.Ct.App.2006). As our Mississippi Supreme Court has stated:

in considering whether the evidence is sufficient to sustain a conviction in the face of a motion for [a] directed verdict or for [a JNOV], the critical inquiry is whether the evidence shows beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.... [T]he 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. Should the facts and inferences considered in a challenge to the sufficiency of the evidence point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render.

Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (internal citations and quotations omitted). However, this Court will determine that there was sufficient evidence to sustain the jury’s verdict if the evidence was “of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense.” Id. (internal citations and quotations omitted).

¶ 26. Ford was charged with murdering Stuckett while acting in concert with four other co-defendants. Ford claims the circuit court should have granted his motion for a JNOV because the prosecution “failed to prove that [he] actually killed Stuckett.” “Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such.” Miss.Code Ann. § 97-1-3 (Rev.2007). “One who is an accessory[-]before[-]the[-]fact or one who aids and abets necessarily enters into an agreement that an unlawful act will be done. He participates in the design of the felony.” Scarborough v. State, 956 So.2d 382, 386 (¶ 21) (Miss.Ct.App.2007) (quoting Malone v. State, 486 So.2d 360, 364 (Miss.1986)). To be held criminally liable as an aider and abetter in the commission of a felony, one must incite, encourage, or assist the actual perpetrator in the commission of the crime. Id.

¶ 27. Viewed in the evidence most favorable to the prosecution, there was evidence presented that Ford ordered Lee to follow Harris’s car when Harris made a u-turn and began driving toward Stuckett’s house. Lee testified that Ford further ordered him to pull his car over near Stuckett’s house. According to Lee’s testimony, Ford got out of Lee’s car after they saw Daner walking toward them with a rifle. Lee testified that he personally saw Ford firing a pistol. Dr. Deering’s autopsy indicated that Stuckett had been killed by a .38-caliber bullet. Starks Hathcock testified that .38-caliber bullets are “most commonly” fired from a revolver. To summarize, there was evidence that Ford ordered Lee to follow Harris. There was evidence that Ford ordered Lee to stop outside Stuckett’s house. There was evidence that Ford got out of Lee’s car and fired a pistol. And there was evidence that Stuckett was killed by a bullet that was fired from a pistol. Accordingly, we find that reasonable, fair-minded jurors could have found Ford guilty. It follows that we find no merit to this issue.

IX. CONTINUANCE

¶28. Ford filed a motion for a continuance on November 3, 2009. Within that motion, Ford stated that he needed additional time because the prosecution planned to have Lee testify, and Lee was in the process of being extradited from Texas. On November 12, 2009, Ford filed an amended motion for a continuance. Ford noted that his trial was scheduled for November 16, 2009, and Lee had been extradited, but Lee had refused to talk to Ford’s attorney prior to trial. The record does not indicate that the circuit court heard Ford’s motion for a continuance. Likewise, the record does not indicate that the circuit court ruled on Ford’s motion.

¶29. Ford contends that the circuit court should have granted his motion for a continuance to give Ford’s attorney time to prepare for Lee’s testimony. Ford concedes that his attorney was aware that Lee would testify for the prosecution. To be precise, Ford states: “While the defense expected that Lee would testify as a witness for the [S]tate[,] there was never any confirmation of that fact until Lee was returned to the State of Mississippi [ten days prior to trial].” According to Ford, his attorney needed additional time “to prepare his defense of Lee’s possible testimony since Lee had been formally charged with being the shooter of Stuckett until the prosecution offered Lee a deal.”

¶ 30. As previously mentioned, the record does not indicate that the circuit court heard or ruled upon Ford’s motion for a continuance. “It is the duty of the mov-ant, when a motion or other pleading is filed ... to pursue [that] motion to hearing and decision by the court.” URCCC 2.04. Stated differently, Ford bore the burden of pursuing the relief he requested. Runnels v. State, 919 So.2d 1072, 1074 (¶8) (Miss.Ct.App.2005). “No action was taken by the trial court[;] thus[,] there is no ruling from which [Ford] may appeal to this Court. Therefore, we conclude our review of this issue by simply resolving it adversely to him.” Id. (citation and quotation omitted).

X. VOIR DIRE

¶ 31. Ford claims that, during voir dire, the prosecution presented facts of the case that should not have been presented. Ford takes issue with remarks made during the following colloquy:

[THE PROSECUTION]: All right. In this case, I intend for you all to hear the testimony of a one Jessie Lee. You all heard the indictment read. Jessie Lee was listed in the indictment. I intend for you all to hear during the course of this trial that Jessie Lee was the driver of one of the vehicles occupied by the defendant and those cohorts that were with him. Now, is there anyone here who because of the fact that a co-defendant is testifying against this defendant automatically decides the case one way or the other without considering the evidence? Anyone?
A: (No response).
[THE PROSECUTION]: When co-defendants testify, I think that people, even from watching tv, we kind of get the idea that, well, there was some deal struck that he testified.
[DEFENSE COUNSEL]: Your Hon- or, can we approach?
(CONFERENCE AT THE BENCH BETWEEN THE COURT AND COUNSEL WITHOUT THE HEARING OF THE JURY)
[DEFENSE COUNSEL]: It sounds an awful lot like we’re getting into some kind of opening statement or closing argument. I mean, if we’re going to argue this, then I’m going to argue a lot of stuff about Jessie Lee in voir dire. I think we’re going a little bit far.
[THE PROSECUTION]: I don’t think that I’m going too far at all. I’m asking if the fact that the co-defendant is testifying makes them automatically decide one way or the other.
[DEFENSE COUNSEL]: It’s fine to ask that. I don’t object to that, but you’re going into all of these details about who’s driving the car and all of this. I think that’s going too far.
THE COURT: I think we should just go straight to the question that he’s a co-defendant.
[THE PROSECUTION]: Yes, ma’am.
(BENCH CONFERENCE CONCLUDED. IN OPEN COURT)
[THE PROSECUTION]: And my question was, because a co-defendant is testifying in this case where the defendant may testify does that automatically weigh in any of you all’s minds as to believing or as to determining the outcome of this case one way or the other, or can you weigh and consider all of that?
A: (NO RESPONSE).

Citing Spicer v. State, 921 So.2d 292, 318 (¶ 55) (Miss.2006) as the sole authority under this argument, Ford argues that the prosecutor’s question was “similar to other remarks that the Mississippi Supreme Court has repeatedly condemned as improper.”

¶ 32. The comment at issue in Spicer was a “send-the-message” comment that was made during closing arguments. Id. at 317 (¶ 52). To be precise, the prosecutor in Spicer made the following comments during closing arguments:

And you see, that’s why now we are afraid to be good neighbors. Acts like that prevent us from being close to people that we even live near. Acts repaid this way are the reasons that we’re strangers with our very next door neighbors. The reason that we don’t allow ourselves to associate or let our children out in the front yard is because this is the way we get repaid.
May I submit to you that it might be payback time? May I submit to you that this might be an opportunity for us to say in George County: We can’t keep you from doing it, but you will pay the price for doing it. And other people are going to know that you paid the price.

Id. at (¶ 51). No portion of the voir dire comments in Ford’s case are remotely similar to the comment at issue in Spicer. As Spicer is the only authority that Ford cited to support his argument under this heading, it follows that Ford failed to cite relevant authority for this issue. Thus, this issue is proeedurally barred. Walker, 913 So.2d at 222 (¶ 73); M.R.A.P. 28(a)(6).

XI. MISTRIAL BASED ON LEE’S TESTIMONY

¶ 33. This issue stems from the following exchange, which occurred during Lee’s direct-examination testimony:

[THE PROSECUTION]: Mr. Lee, did you hear something? Don’t tell us what you heard.
A: Yes.
Q: And what did you hear, did it sound like it came from a voice?
A: Yes.
Q: How did that voice sound?
A: Like a yell.
Q: A yell?
A: Yeah.
Q: Did it sound like a regular—
A: It wasn’t a regular tone like we’re using in here right now. It was a holl[e]r.
[THE PROSECUTION]: Your Hon- or, our position is that the statement would be an excited utterance.
[DEFENSE COUNSEL]: Your Hon- or, I’m going to object to that. His characterization about it being a holler, he’s asking him to draw some kind of a conclusion.
[THE PROSECUTION]: I’m not asking for a conclusion. I am asking for what he heard. Your Honor, one other question.
Q: Mr. Lee, was that while the shooting was happening or before or after the shooting?
A: It was during.
Q: Okay.
THE COURT: That’s all?
[THE PROSECUTION]: Yes, Your Honor. May he proceed? May he answer the question?
THE COURT: What was the question? I mean I heard him say—
[THE PROSECUTION]: He said he heard someone. He heard a human voice make a yell in a loud tone during the shooting. He said it wasn’t like a normal tone like talking in front of the jury now. It was a yell. Our position is that’s the basis for an excited utterance, and he can answer the question.
[DEFENSE COUNSEL]: Your Hon- or, I’ll withdraw [the objection], I don’t think it’s that big of a deal, so I’ll withdraw it.
THE COURT: All right. The objection is withdrawn.
[THE PROSECUTION]: Mr. Lee, did you hear that yell?
A: Yes.
Q: What did it sound like you heard? What did you hear?
A: “Don’t do it, O.J.”[]
Q: “Don’t do it, O.J.?”
[DEFENSE COUNSEL]: Your Hon- or, that’s not — the yell is what — now he’s adding more stuff to it. That’s objectionable.
THE COURT: The Court is going to instruct the jury to disregard that, and it should be stricken from this record.
[THE PROSECUTION]: Yes, Your Honor.

Soon afterward, Ford’s attorney asked to approach the bench. At the bench, Ford’s attorney moved for a mistrial. The circuit court denied Ford’s motion for a mistrial and noted that she had instructed the jury to disregard the comment. Ford claims the circuit court erred when it denied his motion for a mistrial.

¶ 34. We will reverse a circuit court’s decision to deny a motion for a mistrial if the circuit court’s decision was an abuse of the circuit court’s discretion. Flora v. State, 925 So.2d 797, 804 (¶5) (Miss.2006). The rationale behind our standard of review is that the circuit court “is best suited to determine the prejudicial effect of an objectionable remark and is given considerable discretion in deciding whether the remark is so prejudicial as to merit a mistrial.” Id. “Unless serious and irreparable damage results from an improper comment, the judge should admonish the jury then and there to disregard the improper comment.” Id. (citation and quotations omitted).

¶ 35. As noted above, the circuit court instructed the jury to disregard Lee’s testimony that he heard someone yell, “Don’t do it, O.J.,” contemporaneously with Stuckett’s murder. By instructing the jury to disregard Lee’s testimony, it is clear that the circuit court sustained Ford’s objection. “When a trial judge sustains an objection to testimony and directs the jury to disregard the statement, it is presumed, unless otherwise shown, that the jury followed the directions of the trial judge to disregard such comment or testimony.” Id. at 805 (¶ 10) (citation and quotation omitted). Ford does not attempt to demonstrate that the jury did not follow the circuit court’s instructions. That is, Ford failed to demonstrate that the jury did not disregard Lee’s testimony. Likewise, Ford failed to demonstrate that the jury could not have disregarded Lee’s testimony. Accordingly, there is no merit to this issue.

XII. MISTRIAL BASED ON OFFICER LARRY TISABY’S TESTIMONY

¶ 36. Ford’s argument under this heading is based on the following portion of Officer Larry Tisaby’s testimony during direct examination by the prosecution:

Q: And did you have an occasion to be dispatched as a result of a shooting that occurred that night?
A: Yes. I was dispatched to DRMC in reference to a shooting that took place on Stockton, and while there, there was a citizen, I didn’t get his name, had pointed out a vehicle that was—
[DEFENSE COUNSEL]: Objection.
THE COURT: Wait just a minute, Mr. Tisaby. There’s an objection.
[DEFENSE COUNSEL]: Your Hon- or, I guess I might be premature, but I’m reading this report. I think he’s fixing to say what somebody told him, and I was going to object to that, but I’ll wait. I may be premature in my objection.
[THE PROSECUTION]: No, Your Honor. That is what I’m going to ask him, and in this occasion, it’s not being offered as the truth of the matter asserted. This statement is important to explain why he took his next step as a police officer because the testimony is going to explain why he left DRMC to do what he did afterward. The only way that can be explained is that he state what the citizen told him. So it is under that occasion. I’m not offering it for the truth of the matter asserted, rather why he responded the way he did to the statement.

Next, there was a bench conference outside of the jury’s presence. The circuit judge noted that, in her opinion, it was irrelevant who provided Officer Tisaby with the information. The circuit court held that Officer Tisaby was prohibited from testifying that he received the information from a citizen. The prosecution then resumed its direct examination of Officer Tisaby as follows:

Q: Okay. Officer Tisaby, I believe you were indicating that you had responded to DRMC?
A: Yes, I did.
Q: Did you receive any information while you were at DRMC?
A: While I was at DRMC, I received information from a citizen that — from someone that—
Q: No, no. Did you receive any information?
A: Yes, I received information.
Q: What was the nature of the information?
A: The information was that there was a vehicle parked at Double Quick that was involved with the incident on Stockton.
[DEFENSE COUNSEL]: If Your Honor please, that’s my objection.
THE COURT: All right. The part that is objectionable will be stricken from the record, and the Court is going to advise the jury not to consider that. Specifically, how he received the information.

At the conclusion of Officer Tisaby’s testimony, Ford moved for a mistrial. Outside of the jury’s presence, Officer Tisaby explained that he did not fully understand that he was not allowed to testify that he received information regarding the fact that a car that was involved with Stuck-ett’s murder was parked at a gas station. Officer Tisaby stated that he did not hear the prosecution’s instructions to avoid testifying as such because he was sick. The circuit court denied Ford’s motion for a mistrial. Ford claims the circuit court erred.

¶ 37. Ford cites Campbell v. State, 750 So.2d 1280 (Miss.Ct.App.1999) as authority for his argument that the circuit court should have granted his motion for a mistrial. In Campbell, 750 So.2d at 1283 (¶ 18), this Court stated:

In regard to the trial court’s admonishing the jury to disregard any reference to testimony or evidence of other criminal charges, we recognize the existence of an abundance of case law that presumes that members of the jury follow the instructions of the court. However, in the present case we are faced with numerous instances where inadmissible and prejudicial testimony was laid before the jury, whether inadvertently elicited through the State’s questioning or through nonresponsive witness testimony. Therefore, due to the repeated interjection of prejudicial matter, tending to establish additional crimes unrelated to his present offense, we conclude that [the defendant] was denied a fair trial.

(Internal citations omitted). The facts in Campbell are clearly distinguished from the facts of the case presently before us. The objectionable comments in Campbell involved repeated references to the fact that the defendant in that case was involved in crimes separate from the one he faced at trial. Id. at 1282-83 (¶ 10). The testimony presently at issue pertained to the means by which Officer Tisaby discovered the location of a car that was involved with the crime. There were not repeated utterances of objectionable testimony. Furthermore, the testimony presently at issue is not nearly as prejudicial as the objectionable testimony in Campbell. In fact, Ford does not attempt to explain how he suffered prejudice from the testimony at issue. That apparently inadvertent portion of Officer Tisaby’s testimony did not implicate Ford. Officer Tisaby did not connect the car at the gas station to Ford.

¶ 38. “When a trial judge sustains an objection to testimony and directs the jury to disregard the statement, it is presumed, unless otherwise shown, that the jury followed the directions of the trial judge to disregard such comment or testimony.” Flora, 925 So.2d at 805 (¶ 10) (citation and quotation omitted). Ford failed to demonstrate that the jury could not have disregarded Officer Tisaby’s testimony. Likewise, Ford failed to demonstrate that the jury did not disregard Lee’s testimony. This issue is without merit.

XIII. EXPERT WITNESS

¶ 39. Ford claims the circuit court erred when it allowed Hathcock to testify as an expert witness in the field of forensic firearms. Ford does not elaborate as to why the circuit court erred when it accepted Hathcock as an expert witness.

¶40. “There is a presumption that the judgment of the trial court is correct, and the burden is on the appellant to demonstrate some reversible error to this Court.” White v. State, 818 So.2d 369, 371 (¶ 7) (Miss.Ct.App.2002) (quoting Clark v. State, 503 So.2d 277, 280 (Miss.1987)). The appellant has a duty to do more than make mere assertions. Id. He must set forth reasons for his arguments and cite authority in support of them. Id. If he fails to meet those obligations, this Court has no duty to consider his mere allegations. Id. Because Ford merely asserted that the circuit court erred when it accepted Hathcock as an expert witness without explaining why the circuit court erred, this issue is procedurally barred on appeal. Id.

XIV. CUMULATIVE ERRORS

¶ 41. According to Ford, the cumulative effect of the errors committed at trial requires that we reverse the circuit court and remand this matter for a new trial. We have found no errors. It follows that there can be no cumulative effect of errors that do not exist. Harrison v. State, 49 So.3d 80, 85 (¶ 18) (Miss.2010).

¶ 42. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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

      . Lee testified that "O.J.” is Ford’s nickname.