author: CARLTON, J., MAXWELL, J.,

text:
    Donald McKEOWN, Individually and as Personal Representative of the Decedent, Janice McKeown, for and on Behalf of All Wrongful Death Beneficiaries and as Administrator of the Estate of Janice McKeown, Deceased, Appellant v. Robert V. PITCOCK, M.D., Appellee.
    No. 2010-CA-00641-COA.
    Court of Appeals of Mississippi.
    July 26, 2011.
    Rehearing Denied Nov. 8, 2011.
    Certiorari Denied Feb. 9, 2012.

      Sidney Ray Hill III, attorney for appellant.
    Diane V. Pradat, L. Carl Hagwood, Jackson, John Michael Coleman, Bradley K. Overcash, attorneys for appellee.
    GRIFFIS, P.J., CARLTON and MAXWELL, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Donald McKeown, individually and as personal representative of the decedent, Janice McKeown, for and on behalf of all wrongful-death beneficiaries and as administrator of Janice’s estate, appeals the judgment of the Union County Circuit Court denying his motion for a new trial. Donald claims that the circuit court erred in excluding the cause of death listed on Janice’s death certificate from being admitted as evidence during trial. Donald now appeals to this Court. Finding no reversible error, we affirm.

FACTS

¶ 2. Janice reported to the emergency room at the Baptist Memorial Hospital— Union County Emergency Room on October 12, 2003, complaining of trouble breathing and chest pain. Dr. Robert V. Pitcock, the emergency-room doctor, ordered a chest x-ray, which showed that Janice’s heart was enlarged. Further tests revealed that Janice had a left bundle branch block. Dr. Pitcock diagnosed Janice with bronchitis and then sent her home, with instructions to follow up with her local medical doctor.

¶ 3. Janice’s symptoms persisted, and she scheduled a follow-up visit with a local nurse practitioner, Carolyn Estes. Janice saw Nurse Estes on four occasions, the final of which Nurse Estes diagnosed Janice with early congestive heart failure.

¶ 4. On the evening of November 15, 2003, five days after her last visit to Nurse Estes, Donald, Janice’s husband, found Janice lying on the floor in the master bedroom of their house, unresponsive. Donald immediately called 911, but the paramedics declared Janice dead upon their arrival. The paramedics subsequently contacted the Union County Coroner’s office. The coroner, Mark Golding, was out of town and unavailable, so Kim Bum-pas, the deputy coroner, reported to the McKeowns’ home. After examining Janice’s body and its surroundings, Deputy Coroner Bumpas asked Donald if he wanted an autopsy performed. Donald later testified that Deputy Coroner Bumpas recommended not performing one, since, in her opinion, it appeared that Janice had died of a massive heart attack. Donald stated that based on Deputy Coroner Bumpas’s recommendation, he chose not to have an autopsy performed.

¶ 5. Deputy Coroner Bumpas continued her standard investigation into Janice’s death by taking a medical history and taking note of Janice’s medications. Deputy Coroner Bumpas also spoke with Nurse Estes about the medications she had prescribed to Janice for her heart condition. After completing her investigation, Deputy Coroner Bumpas filled out and signed the death certificate, listing the cause of death as “Immediate cause: cardiopulmonary failure; Due to or a Consequence of: Congestive Heart Failure.”

¶ 6. Donald, individually and as personal representative for Janice’s estate, filed a wrongful-death suit in the Union County Circuit Court against Dr. Pitcock; Baptist Hospital; Nurse Estes, C.N.F.P; North Mississippi Medical Clinics, Inc. d/b/a New Albany Medical Clinic; and Dale Wing, M.D., alleging that these medical providers had breached the standard of care in failing to diagnose and treat Janice’s serious heart condition, and he claimed that said breach had caused Janice’s death. Donald specifically alleged that Janice’s symptoms were signs of a serious heart condition, and he argues that Janice should have received a complete cardiac evaluation, been admitted to the hospital, and referred to a heart specialist to perform the necessary catheterization.

¶ 7. Baptist Hospital and Dr. Wing were voluntarily dismissed from the case. Prior to proceeding to trial, the circuit court held a hearing on all pending motions in limine, including the defendants’ motion to exclude the cause of death listed on the death certificate. After reviewing the briefs of the parties, hearing arguments from each side, and considering testimony from Deputy Coroner Bumpas, the circuit judge granted the motion to exclude the cause of death listed on the death certificate, but he allowed the remaining information on the death certificate to be admitted into evidence. The circuit judge cited Deputy Coroner Bumpas’s lack of “education, training, and experience necessary to give an opinion regarding the cause of death” as the basis for his decision to grant the motion. However, the circuit judge allowed Donald to testify as to Deputy Coroner Bumpas’s statements to him after arriving on the scene after Janice’s death, as well as her statements to Donald regarding her opinion of Janice’s cause of death. Donald also called two expert witnesses to testify regarding his theory as to the cause of Janice’s death.

¶ 8. After a trial held on January 25-29, 2010, the jury found that Dr. Pitcock had violated the standard of care in treating Janice. However, the jury did not find that this breach of the standard of care caused Janice’s death. The jury also found that Nurse Estes did not violate the standard of care in her treatment of Janice. Based on the jury verdict, the circuit court entered its judgment in favor of the defendants. Donald filed a motion for a new trial on the issues of causation and damages only as to his claims against Dr. Pitcock, based on the court’s exclusion of the cause of death listed on the death certifícate. The circuit court denied Donald’s motion for a new trial. Donald now appeals.

STANDARD OF REVIEW

¶ 9. “The standard of review regarding admission or exclusion of evidence is abuse of discretion. Where error involves the admission [or exclusion] of evidence, this Court ‘will not reverse unless the error adversely affects a substantial light of a party.’ ” Ladnier v. State, 878 So.2d 926, 933 (¶ 27) (Miss.2004) (quoting Whitten v. Cox, 799 So.2d 1, 13 (¶ 27) (Miss.2000) (citations and internal quotations omitted)).

DISCUSSION

Whether the circuit court erred in excluding the cause of death listed on the certified copy of the death certificate of the decedent.

¶ 10. Donald argues that the circuit court erred by excluding the cause of death listed in Janice’s death certificate, citing Mississippi Code Annotated section 41-57-9 (Rev.2009) and a recent Mississippi Supreme Court opinion, Birkhead v. State, 57 So.3d 1223 (Miss.2011), as authority. The record reflects that the circuit court excluded the cause of death listed in the death certificate because of the determination that Deputy Coroner Bumpas was not qualified to give an opinion regarding the cause of death. In its motion in limine, the defense argued that Janice’s death certificate was unreliable as to the cause of death. The defense claimed that Deputy Coroner Bumpas had relied solely upon statements from Donald and Nurse Estes, as well as a visual inspection of the body, and failed to perform any further investigation when making her opinion as to the cause of Janice’s death set forth on the death certificate. The defense also asserted that the deputy coroner lacked sufficient qualifications to provide a medical opinion as to the cause of death. The defense submits that even though section 41-57-9 provides that death certificates are admissible, the circuit judge still serves as the gatekeeper to evaluate prejudice relative to Mississippi Rules of Evidence 401 and 403, and the qualification of an expert as outlined in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). During the pretrial hearing on the motion in limine, Deputy Coroner Bumpas testified that in the absence of an autopsy, she could not exclude several other causes of sudden death as the probable cause of Janice’s death.

¶ 11. Mississippi Code Annotated 41-61-57(3) (Rev.2009) states, in part, that:

Any county may have deputy county medical examiners or deputy county medical examiner investigators as deemed necessary who shall be appointed jointly by the board of supervisors and the CME or CMEI. However, when the population of a county reaches a total of twenty thousand (20,000) or greater, there shall be one or more officially appointed deputies. Deputies shall be subject to the same qualifications, training and certification requirements, and shall possess the same authority and discharge the same duties, as other county medical examiners or county medical examiner investigators, and shall receive fees and expenses as provided in Sections 41-61-69 and 41-61-75.

(Emphasis added). However, Donald argues that the qualifications of Deputy Coroner Bumpas are not the issue on appeal and asserts that deputy coroners may perform the same functions as coroners by statute. Instead, he claims that the actual issue is whether or not the cause of death listed on the death certificate is admissible, as set forth in section 41-57-9. Donald asserts that he was simply seeking to admit a complete, certified copy of a death certificate into evidence, as authorized by statute. In support of his assertions, Donald relies upon section 41-57-9, which states that “[a]ny copy of the records of birth, sickness or death, when properly certified to by the state registrar of vital statistics, to be a true copy thereof, shall be prima facie evidence in all courts and places of the facts therein stated.” Donald claims that under section 41-57-9, the circuit court should have allowed the entire death certificate into evidence, and then the court should have allowed Dr. Pitcock the opportunity to rebut this prima facie evidence and, ultimately, allow the jury to decide the issue of causation.

¶ 12. Significantly, upon our review, we find that the record reflects that Donald testified that Deputy Coroner Bumpas told him that Janice had died of a massive heart attack. When questioned about his conversation with Deputy Coroner Bum-pas regarding whether or not an autopsy should be performed, Donald testified that:

[Deputy Coroner Bumpas] ... said it looked like she had had a massive heart attack. She asked me did I want an autopsy, and I told her I didn’t know. I had never had anybody die before, you know. I didn’t know if I needed to or not. She said, well, it looks like it was a massive heart attack and she didn’t see any reason for one.

After objections from the defense, the circuit judge cautioned the jury that Deputy Coroner Bumpas lacked the experience or qualifications to determine the cause of death, and the court instructed the jury that Donald’s testimony was not to be considered as evidence of Janice’s cause of death.

¶ 13. We also note that Donald called the following two expert witnesses to testify as to the circumstances of Janice’s death: Julie Davey, a nurse practitioner, and Dr. Frank Westmeyer, an expert witness in the field of emergency medicine and care. Nurse Davey’s testimony showed that Janice’s symptoms appeared consistent with those of heart disease, although Nurse Davey was not allowed to give her opinion regarding the cause of death. Dr. Westmeyer testified that he believed that Janice had suffered from heart disease and stated: “It is my opinion she died of coronary artery disease, probably a myocardial infarction, perhaps complicated by congestive heart failure.” Our review of the record shows that Donald’s theory that Janice had died of heart failure was indeed placed before the jury through his own testimony and also the testimonies of these two expert witnesses. We find no abuse of discretion in the circuit court’s admission of evidence as to cause of death through Donald’s and the expert witnesses’ testimonies. Harris v. State, 970 So.2d 151, 154 (¶ 10) (Miss.2007) (“The standard of review governing the admissibility of evidence is whether the trial court abused its discretion.”).

¶ 14. Donald urges this Court to find that the circuit court erred in failing to admit the entire death certificate, and he asserts that the Mississippi Rules of Evidence do not apply to this case at hand. Donald relies upon section 41-57-9 in arguing that the death certificate must be admitted into evidence without regard to the Mississippi Rules of Evidence. However, Justice Randolph, writing for the Mississippi Supreme Court in Birkhead, 57 So.3d at 1232 (¶ 32), clearly explained in that case, a circuit court committed no error in following the rules of evidence in applying the hearsay exception set forth in Mississippi Rule of Evidence 803(9) for admission of records of vital statistics. M.R.E. 1103 (“All evidentiary rules, whether provided by statute, court decision or court rule, which are inconsistent with the Mississippi Rules of Evidence are hereby repealed.”). Similarly, in this case, the circuit court committed no error in applying the Mississippi Rules of Evidence in evaluating the admissibility of the death certificate as a record of vital statistic. See M.R.E. 401, 403, 702.

¶ 15. In this case, the circuit court dealt with the application of Rule 702 to the deputy coroner’s opinion as to the cause of death, as opposed to the confrontation issue faced in Birkhead. The circuit court herein found that Deputy Coroner Bumpas admitted on the stand that she was not able to make the determination as to cause of death as reflected on the death certificate, to wit: cardiopulmonary failure and congestive heart failure. The circuit court then properly determined that Deputy Coroner Bumpas was not qualified to give an opinion as to cause of death; thus, the circuit court ordered the alleged cause of death redacted from the death certificate. The circuit court allowed the remainder of the death certificate to be admitted into evidence.

¶ 16. As previously noted, when reviewing the exclusion of evidence, this Court will only reverse if the error adversely affects a substantial right of the party. Ladnier, 878 So.2d at 933 (¶27). Additionally, if any error occurred in the circuit judge’s exclusion of the cause of death listed on Janice’s death certificate, we do not find such error to rise to the level of reversible error under the facts of this case. No reversible error occurred since the circuit court allowed Donald to present this evidence through other witnesses, thereby allowing this evidence to be considered by the jury. The testimonies from Donald, Nurse Davey, and Dr. Westmeyer informed the jury about Donald’s theory as to the cause of Janice’s death. We, therefore, cannot find that the exclusion of the cause of death listed on the death certificate adversely affected Donald’s substantial rights. See Simmons v. State, 805 So.2d 452, 498 (¶ 126) (Miss.2001); Flaggs v. State, 999 So.2d 393, 403-04 (¶¶ 31-32) (Miss.Ct.App.2008). Therefore, we find no abuse of discretion by the circuit judge in excluding the cause of death listed on the death certificate. Accordingly, we affirm.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, ISHEE, ROBERTS AND RUSSELL, JJ., CONCUR. MAXWELL, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY ROBERTS AND RUSSELL, JJ. BARNES, J., NOT PARTICIPATING.

MAXWELL, J.,

specially concurring:

¶ 18. I agree with the majority’s affir-mance but write separately to address McKeown’s rebanee on the Mississippi Supreme Court’s recent decision in Birkhead v. State, 57 So.3d 1223 (Miss.2011). McKeown stringently and quite convincingly argues that, based on Birkhead’s apparent inclusive view of Mississippi Rule of Evidence 803(9), the deputy coroner’s statement of the cause of Janice’s death, though clearly opinion evidence, should have been admitted because it was contained in Janice’s death certificate.

Birkhead v. State

¶ 19. In Birkhead, a criminal case, the supreme court considered whether a circuit court erred in admitting a death certificate showing the time of death. Id. at 1231-33 (¶ ¶ 28-34). The supreme court noted: “No legitimate debate can be made that a considerable amount of the information contained within any death certificate is hearsay. Similarly, no debate exists that a death certificate is a vital statistic.” Id. at 1231 (¶ 31) (citing Miss.Code Ann. §§ 41-57-1 to 41-57-2 (Rev.2009)). Indeed, in Mississippi, death certificates are governed by the state board of health’s bureau of vital statistics. Miss.Code Ann. § 41-57-1.

¶ 20. The majority in Birkhead recognized that Rule 803(9) “provides a hearsay exception regarding records of vital statistics.” Birkhead, 57 So.3d at 1231 (¶ 31). The pertinent part of this rule states:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(9) Records of Vital Statistics. Records or data compilations of vital statistics, in any form, if the report thereof was made to a public officer pursuant to requirements of law.

M.R.E. 803(9). The Birkhead majority also emphasized that “[ujnlike Rule 803(8) regarding public records and reports, Rule 803(9) provides no exclusions to its hearsay exception.” Birkhead, 57 So.3d at 1232 (¶31).

¶ 21. Justice Kitchens disagreed. His dissent centered on concerns about the admissibility of certain entries on death certificates. Id. at 1243-44 (¶ 79) (Kitchens, J., dissenting). Reasoning that the contents of death certificates are still subject to the remaining rules of evidence, Justice Kitchens cited Flowers v. State, 243 So.2d 564 (Miss.1971), which held that death certificates could be used to show only the “physical cause of death.” Id. at 1244 (¶ 82) (Kitchens, J., dissenting). For example, a coroner’s opinion that the cause of death was suicide, under his analysis would be excluded, but the prime cause — a gunshot wound- — would not.

¶ 22. The majority rejected this approach. It emphasized that Flowers is “old law,” and the order adopting the Mississippi Rules of Evidence “includes no Flowers-like qualification.” Id. at 1232 (¶ 31). Under Rule 1103, “[ajll evidentiary rules, whether provided by statute, court decision or court rule, which are inconsistent with the Mississippi Rules of Evidence” were repealed. Id. (quoting M.R.E. 1103). Thus, the majority concluded that “death certifícate and the ‘records of vital statistics’ contained therein are admissible” — apparently without further inquiry. Id. at 1232 (¶ 32) (quoting M.R.E. 803(9)).

McKeown’s Case

¶ 23. McKeown argued at trial and on appeal that the deputy coroner’s meager training and inability to be qualified in court to give an opinion on Janice’s death does not preclude the admissibility of the certificate’s stated cause of death. He claims this evidentiary snag over her lacking qualifications is trumped by Rule 803(9) and Mississippi statutory law providing that “records of ... death, when properly certified to by the state registrar of vital statistics, to be a true copy thereof, shall be prima facie evidence in all courts and places of the facts therein stated.” Miss.Code Ann. § 41-57-9 (Rev.2009).

¶ 24. The circuit judge considered this argument but leaned on our evidentiary rules regarding expert-opinion testimony. He found the deputy coroner offered an opinion in the death certificate — that the stated cause of Janice’s death was “cardiopulmonary failure; Due to or a Consequence of: Congestive Heart Failure.” The circuit judge next concluded the deputy coroner was not qualified to give this opinion. Thus, he admitted the record but ordered the stated cause of death stricken from the death certificate under Mississippi Rule of Evidence 702.

¶ 25. I generally find it hard to fault the trial judge’s reasoning. Both parties agree that, due to her lacking credentials, no imaginable circumstance would permit the deputy coroner to give an expert opinion about Janice’s cause of death. Yet if Birkhead’s application of Rule 803(9) extends to these circumstances, this inadmissible opinion testimony slips past the gatekeeper and into the jury box simply because it is typed on a death certificate.

¶ 26. While this result seems illogical under traditional principles and case law, I point out that such a result would not render the Birkhead decision an aberration. To the contrary, a sampling of somewhat similar recently decided cases shows a post-rules-of-evidence trend to admit opinions in death certificates. In Corlett v. Smith, 107 N.M. 707, 763 P.2d 1172, 1177 (1988), the Court of Appeals of New Mexico confronted a similar argument that the listed cause of death in a death certificate was inadmissible opinion testimony. It disagreed and reasoned that a statement of the cause of death is akin to a “factual finding, similar in nature to the factual findings of the identity of the deceased, the time and the date of death[.]” Id. The Court of Appeals of Michigan, noting Michigan’s recent adoption of the Rules of Evidence, particularly Rule 803(9), similarly concluded the statement of the cause of death in a death certificate is not inadmissible opinion testimony. Greek v. Bassett, 112 Mich.App. 556, 316 N.W.2d 489, 492-94 (1982). It reasoned: “If we were to require that a statement in a death certificate be a ‘fact’ in the sense of an absolute objective reality, virtually nothing in a death certificate would be admissible.” Id. at 492. Also, at least two federal district courts have also utilized Rule 803(9) to admit references to the cause of death appearing in a death certificates. All Am. Life Ins. Co. v. Puckett Bros. Mfg. Co., 139 F.Supp.2d 1386, 1392 (N.D.Ga.2001); Weiner v. Metro. Life Ins. Co., 416 F.Supp. 551, 558 (E.D.Pa.1976).

¶ 27. The Supreme Court of North Carolina has addressed McKeown’s precise argument in the context of a medical-malpractice case factually analogous to his. Segrest v. Gillette, 331 N.C. 97, 414 S.E.2d 334 (1992). The North Carolina court conducted a particularly detailed analysis of its reliance on the rules of evidence to find error in a trial court’s exclusion of a coroner’s stated cause of death in a birth certificate. As a condition to admitting a death certificate, the trial court struck from the certificate the county medical examiner’s reference to “halothane anesthesia” as the cause of death. Id. at 336. The jury returned a defense verdict, and the plaintiff claimed this exclusion was error. Id. at 335-36. North Carolina has a similar statute to Mississippi’s, providing that a death certificate is admissible as prima facie evidence of the facts stated therein. Id. at 337. And, like Mississippi, earlier North Carolina case law held that “the statute making death certificates admissible as prima facie evidence of the facts stated therein did not make admissible opinions as to the cause of death contained on the death certificate.” Id.; compare Rees v. Jefferson Standard Ins. Co., 216 N.C. 428, 5 S.E.2d 154, 155 (1939) with Flowers, 243 So.2d at 565. The Segrest court noted that Rees predated adoption of “The Evidence Code, Chapter 8C of the General Statutes” and that “Rule 803(9) excepts death certificates from exclusion under the hearsay rule without limit as to opinions as to the cause of death.” Segrest, 414 S.E.2d at 337. In finding the cause of death admissible, the North Carolina court also found important its statutory provision that granted medical examiners authority to investigate a victim’s cause of death. Id. Mississippi has a similar statute.

¶ 28. But the glaring distinction in North Carolina’s reliance on the rules of evidence to admit death certificates is its recognition of the interplay between Rule 803(8) and Rule 803(9). This is precisely where Segrest and Birkhead diverge. Seg-rest considered Rules 803(8) and 803(9) in tandem, particularly its state’s commentary to Rule 803(8)(C), which differs drastically from Mississippi’s:

Part (C) covers factual findings resulting from an investigation made pursuant to legal authority. The term “factual findings” is not intended to preclude the introduction of evaluative reports containing conclusions or opinions. Apparently North Carolina courts currently exclude statements in reports that only amount to an expression of opinion.

Segrest, 414 S.E.2d at 337 (quoting N.C.R.E. 803(8) cmt.). It concluded “from the language of Rule 803(9) and the Comment on Rule 803(8), that the rule that prohibits the introduction of death certificates containing opinions has been changed so that opinions contained on death certificates are no longer barred by the hearsay rule.” Id.

¶ 29. In contrast, the Birkhead majority relied solely on Rule 803(9) to affirm the judge’s admission of the time of death entered in the death certificate. But it had no choice but to veer wide of Rule 803(8)(C), since obviously Birkhead was a criminal case, and the State — not Birk-head — offered the death certificate to establish the time of death. See M.R.E. 803(8)(C) cmt. (“Even when admissible, public records under Subdivision (C) may only be used in civil cases and in criminal cases on behalf of a defendant against the state.”).

¶ 30. Comparing Mississippi’s Rules 803(8) and 803(9), Rule 803(9) concerns admission of “records of vital statistics.” Rule 803(8) governs the admission of “public records and reports.” Particularly, Rule 803(8)(C) makes admissible:

Records, reports, statements, or data compilations, in any form, of public offices or agencies ... in civil actions and proceedings and against the state in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless sources of information or other circumstances indicate lack of trustworthiness.

There is certainly some overlap between the two rules. So a death certificate could be considered either a record of vital statistics or a public record, as some courts have recognized. See Blake v. Pellegrino, 329 F.3d 43, 48 (1st Cir.2003) (applying Rule 803(8) to the admissibility of a death certificate); Segrest, 414 S.E.2d at 337.

¶ 31. Though not applicable when the State seeks admission of a public record in a criminal case like Birkhead, I find Mississippi’s Rule 803(8)(C) and commentary provide strong support — in civil cases like this one — for a circuit judge to exclude the cited cause of death in a death certificate. The North Carolina court in Segrest relied on its State’s commentary to Rule 803(8)(C) to conclude its rule was “not intended to preclude the introduction of evaluative reports containing conclusions or opinions.” Segrest, 414 S.E.2d at 337. But Mississippi’s commentary to Rule 803(8)(C) differs vastly from North Carolina’s. See M.R.E. 803(8) cmt. Our state’s commentary emphasizes that “[t]o be admissible [investigative reports] must be factual findings made in an investigation which was conducted pursuant to lawful authority. Opinions and conclusions contained in such reports should he excluded.” Id. (emphasis added). The commentary further notes: “The rule expressly gives judges the discretion to exclude such reports.” Id. Rule 803(8)(C), which gives trial court’s discretion to exclude reports that “indicate lack of trustworthiness,” is consistent with Rule 702, which grants trial judges the discretion to exclude unreliable expert opinions. Compare M.R.E. 803(8)(C) with M.R.E. 702.

¶ 32. Because Mississippi’s Rule 803(8)(C) views opinions and conclusions in public reports as inadmissible hearsay, applying Segrest’s analysis to the Mississippi Rules of Evidence would appear to mandate exclusion of the cause of death in Janice’s death certificate.

¶ 33. Again, I note the Birkhead court addressed a criminal case and could not have justified admission of the entry in the death certificate under Rule 803(8)(C) when considering the admissibility of certain portions of a death certificate. However, Birkhead does not appear to allow trial courts to consider both Rules 803(8) and 803(9) when deciding the admissibility of certain portions of a death certificate in civil cases. See Birkhead, 57 So.3d at 1231 (¶ 30) (finding “no debate exists that a death certificate is a vital statistic,” which Rule 803(9) covers). Thus, Birkhead seems to create a brightline rule — that all information typed on a death certificate is a “record of a vital statistic” and, therefore, admissible under Rule 803(9). Judging from other cases I have referenced, such an outcome is neither unsupported nor unique.

¶ 34. With this in mind, I turn to the effect of this on McKeown’s case. Here, the circuit judge permitted McKeown to testify about the deputy coroner’s opinion of the cause of his wife’s death. McKeown also called two expert witnesses who both testified on the issue of causation. Thus, through other means, the circuit judge permitted McKeown to place his causation evidence before the jury. So even assuming Birkhead dictates admission of the stated cause of death, I agree with the majority’s analysis that under the circumstances of this case, the circuit judge’s exclusion of this portion of the certificate, if indeed it was error, was at most harmless error.

ROBERTS AND RUSSELL, JJ., JOIN THIS OPINION.

      . This is a cardiac conduction abnormality where activation of the left ventricle is delayed.

      . We note that Donald chose not to call Deputy Coroner Bumpas to testify at trial.

      . After Donald's testimony, the circuit court cautioned the jury that Deputy Coroner Bum-pas lacked the experience or qualifications to determine the cause of death, and the court instructed the juiy that Donald's testimony was not to be considered as evidence of Janice's cause of death.

      . Dr. Westmeyer's testimony was presented by video deposition.

      . I note that not all jurisdictions have followed this trend. Louisiana, even in the post-rules-of-evidence era, holds fast to its view that a coroner’s death certificate is competent proof of only the fact of death, not the cause of death. Odom v. Sec. Indus. Ins. Co., 649 So.2d 37, 39 (La.Ct.App.1994).


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Cedric D. RUSSELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01628-COA.
    Court of Appeals of Mississippi.
    Aug. 16, 2011.
    Rehearing Denied Nov. 8, 2011.
    Certiorari Denied Feb. 9, 2012.

      Donald W. Boykin, Jackson, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Cedric Russell appeals his conviction in the Hinds County Circuit Court of one count of aggravated assault and one count of possession of a firearm by a convicted felon and his sentence, as a habitual offender, to two terms of life in the custody of the Mississippi Department of Corrections (MDOC) without the possibility of parole or probation. On appeal, Russell asserts the following issues as assignments of error: (1) the indictment should have been dismissed for failure to provide a speedy trial; (2) the amended motion to amend the indictment to allege sentence enhancement as a habitual offender should not have been granted due to prosecutorial vindictiveness; (3) the State committed a discovery violation; therefore, Russell should not have been sentenced as a habitual offender; (4) the evidence was insufficient to sentence Russell as a habitual offender; (5) Russell was improperly sentenced as a habitual offender; (6) Russell was denied a fair and impartial trial; and (7) the circuit court erred in denying Russell’s Batson objection regarding the State’s use of peremptory challenges. Finding no error, we affirm the circuit court’s judgment.

FACTS

¶ 2. On December 19, 2006, Michael Porter arrived at his girlfriend’s house at approximately 5:00 or 6:00 p.m. Porter’s girlfriend, Lawanda Hawkins, her sister, their mother, children, and Russell were all present in the home.

¶ 3. At trial, Porter stated that he left the house to get a bottle of gin from his car, which was parked in the driveway. Porter testified that Russell followed him outside. Porter opened his car, leaned over the front seat, and reached over to get the gin from the back floorboard. While he was in the car, Porter was shot twice in the leg. Porter crawled out of the vehicle, stood up, and walked back into the house. Officers from the Jackson Police Department arrived on the scene, and Porter was taken to University of Mississippi Medical Center. Police officers found 9mm shell casings in the front of the house.

¶ 4. On December 21, 2006, police officers arrested Russell, and he was subsequently indicted on August 16, 2007, for aggravated assault and for possession of a firearm as a convicted felon. On March 10, 2008, the Hinds County District Attorney’s Office filed its motion to amend the indictment to sentence Russell as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev.2007), stating that Russell had two prior felony convictions, including a crime of violence.

¶ 5. At trial, Porter testified that he told police everything that occurred prior to the shooting, but he admitted that he failed to inform the police that he had a 9mm pistol in his car when he was shot. Vicki Hawkins, Lawanda’s sister, testified that Porter always carried a gun in his car. She stated that she observed both Porter and Russell go outside, but she testified that when she went outside later, she did not see Russell. Vicki and Lawanda both testified that they did not see who had fired the shots.

¶ 6. Porter testified that he noticed that Russell had a pistol in his pocket while they were inside Hawkins’s home, but he did not say anything about it to Russell. However, Porter admitted at trial that he never told the police that he had seen a pistol in Russell’s pocket. Porter also testified that he did not see Russell shoot the pistol.

¶ 7. Russell testified that prior to the shooting, he went on the front porch of the house to call a friend to pick him up. He stated that someone came by the house while he was outside and asked if Porter was inside the house. Russell testified that one of his friends arrived and picked him up before any shots were fired. Russell denied shooting Porter.

¶ 8. After a trial held on January 27-30, 2009, Russell was found guilty of one count of aggravated assault and one count of possession of a firearm by a convicted felon. Prior to sentencing, the State submitted its amended motion to amend the indictment to sentence Russell as an habitual offender, seeking to add two additional felony convictions for consideration in support of sentencing Russell under section 99-19-83. The addition of the two convictions resulted in four prior convictions in support of habitual offender sentencing. The motion was stamped “filed,” but the circuit clerk did not sign the motion, nor does it appear on the circuit court docket. On January 30, 2010, the circuit court sentenced Russell to life in the custody of the MDOC without parole or probation, with the two counts to be served concurrently.

¶ 9. Russell filed a motion for judgment notwithstanding the verdict (JNOV), or, in the alternative, for a new trial. The circuit court denied both of these post-trial motions. Russell now appeals.

DISCUSSION

I. Speedy Trial

¶ 10. On the day of trial, during the hearing on pretrial motions, the defense presented its motion to set aside the order denying the pro se motion to dismiss for lack of a speedy trial. The prosecution, in responding to this motion, sufficiently showed that Russell had suffered no statutory or constitutional violation:

... I think the facts are clear, your Honor, that the defendant was arrested December 26, 2006. He was indicted August 26, 2007, arraigned November 9, 2007. And his case was set for trial March 24, 2008.
All of these offenses of which indictments are presented to this Court were supposed to be tried within 270 days according to the [sic] 99-17-1 of the Mississippi Code. And his trial was certainly set within that time.
And your Honor, the reason that case was delayed was because the defendant asked for it. I mean, any delay that we have after that goes against the defendant. And I mean, I understand that [Russell’s attorney] Mr. Boykin needed to get him evaluated. That’s not the issue. I understand why he did what he did. But certainly the delay is on the defense because he wanted a mental evaluation. And he got one.
And as soon as he got one, at least within the next term, if not the second term of court, he’s set for trial and we’re ready to go today. There is no issue there. And number two is, Judge, what prejudice is he served — I mean, has come to him. You know, there is no prejudice whatsoever. He has no witnesses that aren’t available anymore. There’s nothing that’s missing.
I mean, regardless, we are within the timeframe as constitutionally and statutorily provided. And I would note, your Honor, that he asked for the speedy trial before he was even indicted.
So regardless, we’re within the statutory and constitutional confines of the speedy trial. Secondly, he’s shown absolutely no prejudice whatsoever as to the delay. And thirdly, I’d say any delay that’s happened is mostly because of the defendant.

¶ 11. Upon hearing and considering the motion, the circuit court ruled that “the motion is not well taken and should be and hereby is denied. So that relates to both the statutory claim and the constitutional claim of the defendant,” and then the circuit court further ruled that it found no prejudice resulting from the delay.

¶ 12. On appeal, Russell nonetheless asserts that the delay in his trial date violates both his statutory right to a trial within 270 days of his arraignment under Mississippi Code Annotated section 99-17-1 (Rev.2007) and his constitutional right to a speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution and Article 8, section 26 of the Mississippi Constitution. Russell argues that his indictment should have been dismissed for failure to provide him with a speedy trial. Russell claims that 571 days passed between his date of arrest and his trial. Russell attributes this delay to the State, claiming that the State gave no reason for this delay. Russell asserts that such a lengthy delay prejudiced him by causing him to lose contact with a critical witness named “Ron Ron,” who could not be located prior to the trial.

¶ 13. Our standard of review when addressing the claims of speedy-trial violations is as follows:

Review of a speedy[-]trial claim involves a question of fact: whether the trial delay arose from good cause. We will uphold the trial court’s finding of good cause if that decision is supported by substantial, credible evidence. However, if no probative evidence supports the trial court’s findings, we must reverse the decision and dismiss the charge. The State bears the burden of proving good cause for the speedy trial delay, and thus bears the risk of non-persuasion. Good cause is a factual finding which is not different from any other finding of fact, and thus[,] an appellate court should not disturb the finding when it is based upon substantial evidence identified from the record.

Carr v. State, 966 So.2d 197, 200 (¶ 5) (Miss.Ct.App.2007) (internal citations omitted). We will affirm a trial court’s findings where they are supported by substantial, credible evidence. McBride v. State, 61 So.3d 138, 147 (¶ 34) (Miss.2011).

¶ 14. Regarding Russell’s statutory right to a speedy trial, section 99-17-1 states: “Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.” Any delay as a result of action by the State that is not supported by good cause will cause that time to be counted against the State. Wiley v. State, 582 So.2d 1008, 1011 (Miss.1991). However, a delay caused by the actions of the defendant, such as a continuance, will toll the running of the time period for that length of time, and correspondingly, this time is subtracted from the total amount of the delay. Id.

¶ 15. The record shows that Russell was arrested on December 21, 2006, indicted on August 16, 2007, and arraigned on November 9, 2007. Russell’s trial was initially set for March 24, 2008, which was clearly within the statutory time of 270 days from his arraignment. We note that Russell filed a pro se motion to dismiss for lack of a speedy trial on May 2, 2007, prior to his indictment, which was denied due to no violation of section 99-17-1, but it resulted in his trial date being moved up on the trial docket to February 11, 2008.

¶ 16. However, Russell complained about his public defender, and he was subsequently appointed new counsel in February 2008, resulting in his trial date being returned to March 24, 2008. Russell claimed that he had not spoken to his initially appointed counsel in over a year. Russell’s new counsel then requested a mental evaluation on March 24, 2008. The trial transcript explains that the doctor performing the evaluation was booked until October 2008. The evaluation was performed on October 5, 2008, and the report explaining the results of the evaluation was issued the following day. After the defense-requested evaluation, the record reflects that Russell’s counsel asked that Russell’s case be put back on the trial docket, but the record shows that his counsel failed to ask for a trial setting. The Mississippi Supreme Court has held that while a defendant has no duty to bring himself to trial, he does have a responsibility to assert his right to a speedy trial. Jaco v. State, 574 So.2d 625, 632 (Miss.1990). Russell’s trial finally began on January 27, 2009. However, as explained above, much of that time is attributable to defense delay.

¶ 17. In its pretrial motion, the State argued that Russell was arrested on December 26, 2006, and indicted on August 26, 2007, with the arraignment on November 9, 2007. The State asserted the case was set for trial on March 24, 2008, and the State submitted that the trial date was delayed because of the defendant’s request for new counsel and also for a mental evaluation. The State asserted that as soon as Russell obtained his mental evaluation, he received a trial setting within 270 days. The State argued that the time from March 24, 2008, the original trial date and also the date of Russell’s oral motion requesting a mental evaluation, to January 27, 2009, the date of trial, constituted a delay attributable to the defense, due to the request for the mental examination. The trial transcript also reflects that during the pretrial motions, the defense agreed that the period of time when Russell was awaiting the evaluation should not be attributable to the State.

¶ 18. The circuit judge addressed the accountability of the delay in ruling upon pretrial motions, stating:

On 12-21-06 initially arrested, 8-16-07 indictment, 11-9-07 arraignment, trial set for March 24, 2008, 12-21-07 the court denies motion to dismiss for lack of speedy trial. 2-11-08 trial date. No trial as defendant complained of public defender.
On 8-10-08 the State moves to amend indictment to allege violent habitual offender, 3-21-08 defendant moves to set aside 12-21-07 order, 3-24-08 jury selection and commencement of trial to begin. And then there was substantial argument made by Mr. Kessler [assistant district attorney] in his brief in response to the motion to set aside the court’s order.
This court notes in this brief filed by Mr. Kessler that on December 21, 2007 this court denied a motion to dismiss filed pro se by Russell but moved his case for trial to February 11, 2008. That trial did not commence as Russell was complaining of his public defender and demanding new counsel, which he was given.
This court, argued by Mr. Kessler, said it should attribute this delay to Russell, and therefore does not count this period of delay against the State. In total, this Court should find that all but the last 42 days of delay are attributable to the State, albeit with limited weight given the absence of evidence indicating intentional delay, again, argued by Mr. Kessler as that delay exceeds the presumptively prejudicial threshold of eight months, this Court should hold this factor to favor [Russell].

¶ 19. As stated, the circuit judge concluded that he found “all but the last 42 days of delay are attributable to the State, albeit with limited weight given the absence of evidence indicating intentional delay.” The circuit judge also explained that he considered “all aspects of this case, and particularly the motion, and considered] the history, the timeline, the Barker factors, arguments of counsel ..., [and] briefs of counsel previously submitted to the court” when denying the motion to dismiss. As our supreme court requested in State v. Ferguson, 576 So.2d 1252, 1255 (Miss.1991), when examining a defendant’s assertion of a speedy-trial violation, “it would be extremely helpful if the [c]ircuit [cjourts ... would provide us with an articulated statement of their findings of evi-dentiary fact made and the reasons for the decision to grant [or deny] the motion.” In the present case, we find the circuit court’s findings are supported by substantial, credible evidence; thus, we find no violation of Russell’s statutory right to a speedy trial.

¶ 20. We now address Russell’s constitutional concerns. Regarding Russell’s constitutional right to a speedy trial, the United States Supreme Court established a four-part balancing test to determine the parameters of a speedy trial were, and to determine when an accused’s right to a speedy trial had been violated, stating: “(1) length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 529-34, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Mississippi Supreme Court has adopted the Barker analysis as applicable to the state constitutional speedy trial right. See Skaggs v. State, 676 So.2d 897, 900 (Miss.1996).

¶ 21. In examining the first factor, the length of delay, we note that the constitutional right to a speedy trial, unlike the statutory right created by section 99-17-1, attaches when a person has been effectively accused of a crime. Jenkins v. State, 947 So.2d 270, 276 (¶ 14) (Miss.2006). In addition, this “first factor has been called a triggering mechanism because until there is some delay which is presumptively prejudicial, there is no need for an inquiry into the other balancing test factors.” Carr, 966 So.2d at 201 (¶ 8) (citing Barker, 407 U.S. at 531-32, 92 S.Ct. 2182). “[T]here must first be a finding of a ‘presumptively prejudicial’ delay or our inquiry on the issue ends.” Id. Here, the record reflects that Russell’s trial finally began on January 27, 2009. Additionally, “[a]n eight-month delay between arrest and trial has been found to be presumptively prejudicial.” Id. (citing Smith v. State, 550 So.2d 406, 408 (Miss.1989)). We note that Russell’s trial occurred a little more than two years after his arrest; therefore, the delay is therefore presumptively prejudicial, and the remaining Barker factors must be considered.

¶ 22. The second factor considers whether the delay was justified, and the burden shifts to the State to produce evidence justifying the delay and to persuade the trier of fact of the legitimacy of the reasons. Carr, 966 So.2d at 201 (¶9). “Delays caused by the defense, such as requests for continuances, will toll the running of the speedy trial clock for that length of time attributable to the continuance.” Hersick v. State, 904 So.2d 116, 121 (¶ 8) (Miss.2004) (citation omitted). Although the circuit judge’s ruling in the present case does not explicitly calculate all days attributable to defense delay, the circuit judge did, as previously noted, explain that he found all but the last forty-two days of delay to be attributable to the State. The circuit judge gave limited weight to the delay by the State, however, due to the absence of evidence indicating intentional delay. The record reflects that Russell made the request for new counsel and also requested a mental evaluation, resulting in a delay of the trial date in order to accommodate these requests. The Mississippi Supreme Court has held that the defendant is responsible for delays resulting from psychiatric, mental, physical, and IQ examinations requested by the defense. Thorson v. State, 653 So.2d 876, 891 (Miss.1994). Additionally, in Magnusen v. State, 741 So.2d 282, 289 (¶ 24) (Miss.Ct.App.1998), this Court explained that a delay caused by the withdrawal of the defendant’s attorney cannot be weight against the State because such delay is beyond the State’s control. We further note that the doctor selected by the defense for the examination was unable to conduct Russell’s mental evaluation until nearly seven months after Russell’s request. Therefore, we will weigh this factor as neutral.

¶ 23. In turning to the third factor, we examine Russell’s assertion of his right to a speedy trial. This Court has stated:

Though the State has the burden to provide a speedy trial, a defendant attains more points under this factor of the Barker test if he has asserted his right to a speedy trial. Failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.

Muise v. State, 997 So.2d 248, 253 (¶ 15) (Miss.Ct.App.2008) (internal citations and quotations omitted). The record reflects that Russell filed a motion for right to a speedy trial on May 2, 2007, which was prior to his indictment. The circuit judge dismissed Russell’s motion, but re-scheduled his trial for an earlier date.

¶ 24. The record also shows that Russell filed various additional motions in relation to his speedy trial request — including a motion to set aside the order denying the motion to dismiss for lack of speedy trial, a motion to show cause for delay, and a motion to dismiss the indictment for failure to provide a speedy trial.

¶ 25. In considering the final factor of whether Russell was prejudiced by the delay, we must look to the three interests for which the speedy-trial right was designed: to prevent oppressive pretrial incarceration; to minimize anxiety and concern of the accused; and to limit the possibility that the defense will be impaired. Bonds v. State, 938 So.2d 352, 358 (¶ 16) (Miss.Ct.App.2006). In Jenkins, 947 So.2d at 277 (¶ 21) (internal citations and quotations omitted), the supreme court held that “[gjenerally, proof of prejudice entails the loss of evidence, the death of witnesses, or the staleness of an investigation.” Additionally, we note that the defendant bears the responsibility of showing prejudice in order to weight this factor in his favor. See Birkley v. State, 750 So.2d 1245, 1252 (Miss.1999); Perry v. State, 637 So.2d 871, 876 (Miss.1994). In his motion to dismiss, Russell asserts that he was “suffering mental anxiety” while being held without bond. However, the supreme court has held that “a defendant’s assertion of prejudice attributable solely to incarceration, with no other harm, typically is not sufficient to warrant reversal.” Jenkins, 947 So.2d at 277 (¶ 21).

¶ 26. Russell claims that he was prejudiced by the delay in his trial date since he lost contact with Ron Ron, who Russell submits to be a “critical” witness. Russell alleges that Ron Ron would testify that he picked up Russell from Hawkins’s house prior to the shooting. However, the record supports the State’s argument that Russell admitted on cross-examination that he never knew Ron Ron’s last name. We find Russell’s claim of prejudice to lack support. See Birkley, 750 So.2d at 1252; Perry, 637 So.2d at 876. We further find that the circuit court was within its discretion in determining that the length of time between Russell’s arrest and trial did not violate either his statutory or his constitutional right to a speedy trial. See Alexander v. State, 841 So.2d 1138, 1144, 1146 (¶¶ 15, 24) (Miss.Ct.App.2002) (explaining analysis for courts to utilize when reviewing possible violations of a defendant’s constitutional and statutory right to a speedy trial). The record reflects that the circuit judge carefully considered Russell’s claims and applied the appropriate judicial tests. Although the circuit judge did not fully articulate his calculations regarding defense delay in his findings, the record shows that the circuit judge spoke to the issue of prejudice and the Barker factors; thus, we find that the circuit court’s findings are supported by substantial evidence in the record. See Ferguson, 576 So.2d at 1255. Finding no error by the circuit court, we find that this issue is without merit.

II. Prosecutorial Vindictiveness

¶ 27. Russell next argues that the amended motion to amend the indictment to charge him as a habitual offender should not have been granted due to pros-ecutorial vindictiveness. Russell alleges that the State made a plea offer to him prior to trial and told him that if he rejected the plea offer, the indictment would be amended to allege that he was a habitual offender under section 99-19-83. Russell claims that the State’s action of filing its amended motion to amend the indictment after the trial had ended but prior to sentencing, alleging that Russell had four pri- or convictions, one of which was a crime of violence, constituted prosecutorial vindictiveness.

¶ 28. “The doctrine of prose-cutorial vindictiveness ‘precludes action by a prosecutor that is designed to penalize a defendant for invoking any legally protected right available to a defendant during a criminal prosecution.’ ” Garlotte v. State, 915 So.2d 460, 467 (¶23) (Miss.Ct.App.2005) (citations omitted). “Where there is a ‘reasonable likelihood that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority,’ there is a presumption of prosecu-torial vindictiveness.” Moore v. State, 938 So.2d 1254, 1264 (¶ 30) (Miss.Ct.App.2006) (citing Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989)). “However, when no such likelihood exists, it is the defendant’s burden to prove actual vindictiveness.” Id. (citing Alabama, 490 U.S. at 799-800, 109 S.Ct. 2201).

¶ 29. In Baskin v. State, 986 So.2d 338, 344 (¶ 19) (Miss.Ct.App.2008), Keith Bas-kin, like Russell, argued that the circuit court erred in allowing the State to amend the indictment after the verdict, but prior to sentencing. The court found no merit in Baskin’s claims of prosecutorial vindictiveness, noting that the prosecutor offered the plea bargain in the presence of both Baskin and his counsel, that Baskin “was advised, prior to trial, of the consequences of going to trial and receiving a guilty verdict in light of his past criminal history,” and that Baskin “was free to accept or reject the plea bargain at issue.” Id. at (¶¶ 19-20).

¶ 30. In the present case, the trial transcript and Russell’s brief allude to a document that the State sent to Russell’s counsel on February 14, 2008, making Russell a plea offer as a non-habitual offender, which stated that “if he refused this offer, we’ll amend indictment to big H.O. on both counts” and was signed by an assistant district attorney. We therefore find that Russell was aware of the terms of the plea agreement. In ruling on Russell’s objection to amending the indictment, the circuit judge stated:

The current state of the law is they can do what they did. And that’s the opinion of the Court.... And probably what they have done is try to make an offer, plea bargain, which is obviously common in this Court, this state, all over the country. It’s done every day hundreds if not thousands of times, what they’ve done in this case, made an offer saying if you — this is our offer, plea bargain. If you don’t take it it’s off the table, we’re going for the maximum, or we’re going to amend to enhance the penalty.

¶ 31. The Baskin court also noted that Mississippi law holds that “prior offenses used to charge the defendant as [a] habitual offender are not substantive elements of the offense charged”; thus, the State is allowed to amend a defendant’s indictment after the verdict, but prior to sentencing. Id. at (¶ 19) (citing Shumaker v. State, 956 So.2d 1078, 1087 (¶ 26) (Miss.Ct.App.2007)). Thus, we cannot find that the circuit court erred in allowing the State to amend its indictment prior to sentencing, but after conviction. This issue is without merit.

III. Discovery Violation

¶ 32. Russell claims that due to a discovery violation by the State, he should not have been sentenced as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83. . He argues that after he was found guilty but prior to sentencing, the State provided him with documents relating to his four prior convictions. Russell claims that the length of time he served for two of the convictions was in dispute. Russell states that the documentation provided by the State showed that he had served exactly one year, which marks the difference between him being sentenced under Mississippi Code Annotated section 99-18-81 (Rev. 2007) as opposed to section 99-19-83. Russell claims that he did not have the opportunity to investigate adequately the length of the sentences he had served, and the circuit court failed to give him a continuance to allow him to do so.

¶ 33. For a discovery violation to require reversal, this Court has established that there must be a showing of prejudice, and the non-diselosed material must be more than simply “cumulative.” McCoy v. State, 811 So.2d 482, 484 (¶ 15) (Miss.Ct.App.2002). The State argues that Russell had actual knowledge of his prior convictions, since he was convicted and served time. The State further argues that convictions three and four were served concurrently as convictions one and two, so if Russell had no problem with the computation of the time served for the first two convictions, he should not have a problem with the third and fourth convictions, either; therefore, he cannot show any prejudice.

¶ 34. The record reflects that the State called Evelyn Dixon, a special-projects officer at the MDOC who also serves as the records custodian, to testify that two time sheets existed regarding Russell’s prior convictions — “one for each incarceration, which we have two charges on each time sheet.” Russell’s counsel admitted that he had time to examine the documents, although he clarified that he was not confirming their accuracy as to the computation of time served. After hearing testimony from Dixon and Lieutenant Tammy Gaines, who works at the Hinds County Sheriffs Office detention center in Raymond, Mississippi, the circuit judge found that “the State has now complied with the habitual[-]offender statute, section 99-19-83 ... by proving four previous felony convictions prior to the conviction of [Russell], one of which was a violent crime. Actually two, an aggravated assault and felon in possession of a firearm.” The circuit judge then clarified that he made these findings “beyond a reasonable doubt.”

¶ 35. In this case, we find no discovery violations and also no showing of prejudice. Id. Any discovery violation that might have occurred was harmless error.

IV. Insufficient Evidence

¶36. Russell’s fourth and fifth assignments of error relate to his habitual offender status and subsequent sentencing; thus, we will address these two assignments of error together.

¶ 37. Russell calls into question the circuit court’s finding beyond a reasonable doubt that he had four prior convictions, and one of the prior convictions was for a crime of violence. He also claims that the circuit court could not find, beyond a reasonable doubt, that he had served sentences of one year or more for two of the sentences. Russell alleges that the evidence presented at trial was insufficient to sentence him as a habitual offender to life without parole or probation, pursuant to section 99-19-83. Instead, Russell claims that the documents provided by the MDOC in support of his habitual offender status only proved that one of his sentences had been served for one year or more. Russell states that the discharge certificate was only dated one year after the sentence had begun, but it did not state Russell’s actual release date.

¶ 38. We note that the State must prove a defendant’s habitual-offender status beyond a reasonable doubt. Gilbert v. State, 48 So.3d 516, 524-25 (¶ 35) (Miss.2010). The record reflects that the State called Dixon to testify as to the language in Russell’s inmate time sheets as well as to the terms of Russell’s incarceration. On direct examination, the prosecutor inquired about Russell’s convictions and incarcerations and established the following:

Q: Ms. Dixon, I’m going to call your attention to a possession of cocaine and possession of marijuana, less than once ounce, to distribute conviction that was rendered in the Circuit Court of Madison County on October 27, 1995[,] in which the defendant was sentenced' to two years in the Department of Corrections.
’ Do you have any records that reflect whether or not this defendant was held in custody by the Department of Corrections on those two charges?
A: Yes, sir.
Q: And were those charges run consecutively or concurrently?
A: They’re run concurrent.
Q: Okay. And how much time did the Cedric Russell that’s reflected in your records serve on those two concurrent charges?
A: He was sentenced to serve two years. He served one year that run concurrent. So he served one year.
Q: Okay. From what date to what date?
A: Begin date April 10, 1995, and released April 10,1996.
Q: I’m now going to call your attention to a possession[-]of[-]firearm[-]by[-]a[-]convicted[-]felon conviction from the Circuit Court of Madison County, cause number 99-0067, count three, in which the defendant, Cedric Russell, was sentenced to one year in the Department of Corrections on February 29 of 2000.
Do you have any records that reflect that a Cedric Russell was received into custody by the Department of Corrections on that charge?
A: Yes, sir.
Q: And what do your records reflect that that Cedric Russell served in custody on that charge? How much time?
A: His sentence began on March 15, 1999, and was released on June 2, 2000.
Q: And he was sentenced to one year?
A: Yes sir. He was sentenced to one year on the possession of a weapon as a felon, and one year, two months, 19 days on the aggravated assault.
Q: Okay.
A: And those two run concurrent.
Q: And aggravated assault cause number 98-2-018 out of the first judicial district of Hinds County, Mississippi, the defendant was sentenced on May 9 of 2000. I believe you’ve already stated, is that the conviction you were talking about, the aggravated assault?
A: Yes, sir.
Q: And how much time did he serve on that?
He served 445 days.
That is in excess of one year?
Yes, sir.

¶ 39. On cross-examination, Dixon also affirmed that she could tell the court, beyond a reasonable doubt, that Russell did indeed serve one year on two of the charges. As stated above, the circuit judge found, beyond a reasonable doubt, that “the State has now complied with the habitual[-]offender statute, section 99-19-83 ... by proving four previous felony convictions prior to the conviction of [Russell], one of which was a violent crime. Actually two, an aggravated assault and felon in possession of a firearm.”

¶ 40. We find from the record before us that the circuit court did not err in finding that the State had presented sufficient evidence showing that Russell had met the requirements of section 99-19-83. See Gilbert, 48 So.3d 516 at 525 (¶¶ 37-38). Therefore, the circuit court did not err in sentencing Gilbert as a habitual offender under section 99-19-83. We find no merit to Russell’s fourth and fifth assignments of error.

V. voir Dire

¶ 41. Russell next argues that the voir dire process prejudiced the jury against him, which denied him a fair and impartial trial. Specifically, Russell claims that the circuit judge refused to allow Russell to ask the venire that “if they were in the minority, and after their deliberations had ended, would they change their vote merely to go home, or merely to go along with the majority.” Russell claims that the circuit judge also improperly denied his challenges for cause for the three veniremen who stated that when they entered the courtroom, they wondered “what Russell had done, not merely what he had been charged with.” Russell submits that one of those veniremen said he wondered what Russell did based on the fact that he was a young, black male.

¶ 42. Generally, a voir dire is presumed sufficient to ensure a fair and impartial jury. Ross v. State, 954 So.2d 968, 988 (¶ 31) (Miss.2007). In order to overcome the presumption of fairness and impartiality, “a party must present evidence indicating that the jury was not fair and impartial and show that prejudice resulted from the circuit court’s handling of the voir dire.” Id. (citing Manning v. State, 735 So.2d 323, 336 (¶ 19) (Miss.1999)). Additionally, “[a] trial court’s finding that an impartial jury was impaneled will not be reversed unless the court abused its discretion.” Id. (citing Holland v. State, 705 So.2d 307, 336 (¶ 97) (Miss.1997)).

¶ 43. Regarding Russell’s claim that the circuit judge refused to allow Russell to ask the venire that “if they were in the minority, and after their deliberations had ended, would they change their vote merely to go home, or merely to go along with the majority,” we note that “judicial rules prohibit a party from asking venire members hypothetical questions or attempting to elicit a pledge to vote a certain way if a certain set of circumstances are shown.” Id. at 989 (¶ 35). Additionally, our supreme court “has held that a defendant fails to show the necessary prejudice where the defense counsel fails to question jurors about an inappropriate comment, and the venire members have made general declarations that they could set aside their prejudices and reach a decision based on the evidence.” Id. at 988 (¶ 32) (citing Holland, 705 So.2d at 339-40 (¶¶ 121-23); West v. State, 463 So.2d 1048, 1054 (Miss.1985). Thus, we find that the circuit court’s ruling in the present case was within its discretion.

¶ 44. Turning next to Russell’s claim regarding his challenges for cause, the record reflects that during the jury-selection conference, defense counsel challenged for cause the three jurors who Russell submits “wondered what he did.” After hearing arguments from the prosecutor and defense counsel, the circuit judge refused to remove these jurors for cause. The circuit judge explained his decision, stating that:

the court asked if everybody could be fair and impartial, and if anyone couldn’t let us know. Those weren’t the exact words, but certainly it was not stated explicitly, inclusively. And the court went over and over the fact that this man is innocent at this time and repeated what the court advised them earlier. So the court believes they were properly advised about the innocence of this man at this time. And so the court does not believe there’s been a showing for cause for those ones.

The record shows that the circuit judge also previously explained to the veniremen that they were entitled to their first impression of Russell, but clarified that “the fact that an indictment has been returned against [Russell] is no indication of guilty whatsoever.” Eventually, the defense counsel exercised peremptory challenges on each of the three jurors at issue, and as a result, none of these challenged jurors sat on the trial jury. Thus, we find this issue is without merit. Tapper v. State, 47 So.3d 95, 98-99 (¶¶ 11-15) (Miss.2010).

¶45. In Christmas v. State, 10 So.3d 413, 423 (¶¶ 46-47) (Miss.2009), the supreme court refused to address the merits of the defendant’s claim that the circuit court erred by denying his challenge for cause against a juror who did not actually sit on the jury, based on comments that juror made during voir dire examination. The supreme court cited its previous decision in Mettetal v. State, 615 So.2d 600, 603 (Miss.1993), wherein the court held that:

So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean that the defendant was denied his constitutional rights. Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80, 90 (1988). This Court has explained that a prerequisite to presentation of a claim of a denial of constitutional rights due to denial of a challenge for cause is a showing that the defendant had exhausted all of his peremptory challenges and that the incompetent juror was forced by the trial court’s erroneous ruling to sit on the jury. Chisolm v. State, 529 So.2d 635, 639 (Miss.1988).

¶ 46. This issue is without merit.

VII. Batson Challenge

¶47. In his final assignment of error, Russell argues that the circuit court erred in denying his Batson objection regarding the State’s use of peremptory challenges against African American venirepersons without adequate, race-neutral justification. Russell points to the fact that all twelve of the State’s peremptory challenges were of African American people, and for some challenges, the State failed to give race-neutral reasons.

¶ 48. This Court employs a well-established standard of review when considering Batson challenges. Camper v. State, 24 So.3d 1072, 1074 (¶ 12) (Miss.Ct.App.2010). “This Court reviews a trial court’s ruling on a Batson challenge with great deference and will not overturn the trial court’s ruling unless it is clearly erroneous or against the overwhelming weight of the evidence.” Id. at 1074-75 (¶ 12) (quoting Pruitt v. State, 986 So.2d 940, 942 (¶ 8) (Miss.2008)). We accord great deference in the findings of the circuit court because “the trial judge is in the best position to evaluate the demeanor and credibility of the attorney offering the gender/race-neutral explanation.” Id. at 1075 (¶ 12) (quoting Perry v. State, 949 So.2d 764, 767 (¶ 7) (Miss.Ct.App.2006)).

¶ 49. The Equal Protection Clause of the Fourteenth Amendment of the United States Constitution prohibits parties from exercising peremptory challenges against jurors “solely based on their race.” Johnson v. State, 529 So.2d 577, 583 (Miss.1988) (citing Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)). When a party asserts that a discriminatory purpose for the peremptory challenge exists, qualifying it as a Batson challenge, a trial court should employ the following three-step procedure:

(1) the defendant must make out a pri-ma facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose; (2) once the defendant has made out a pri-ma facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible, race-neutral justifications for the strikes; and (3) if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination. The burden remains on the opponent of the strike to show that the race-neutral explanation given is merely a pretext for racial discrimination.

Pruitt, 986 So.2d at 942-43 (¶ 8).

¶ 50. Turning to the facts of the case at bar, we will review each of Russell’s strikes individually that are at issue on appeal. Russell specifically names Shirley Banks, Sheila Williams, Mary Ashmore, and Emma Lee Boone, and asserts that the State failed to provide a race-neutral reason for striking these venirepersons.

¶ 51. In reviewing the record, we note that Russell objected to the State’s peremptory strikes on the grounds that all twelve strikes were African American venirepersons, and he contended that there were no race-neutral reasons for those strikes. The State proceeded to explain the race-neutral reasons for each of its strikes. Beginning with Banks, the State explained that it struck her due to the fact that she had a class starting at 6:00 p.m., and she informed the court during voir dire that “she didn’t want to be here past 5:30.” The State also noted that Banks wears glasses, but she did not bring them with her that day, although she stated that she would bring her glasses if chosen for the jury. Next, the State explained that when the venire was asked whether they would make the State prove motive, Williams nodded her head affirmatively. The State stated that it struck Williams due to the indication that she would make the State prove motive when motive may not be necessary to prove. The State next explained that it struck Ashmore due to her late work schedule, which may affect her ability to remain attentive during trial, as well as the fact that she has a brother-in-law who works at Oakley Training School, which may cause her to have some sympathy for Russell. Finally, the State explained that it struck Boone due to her employment at the Mississippi State Hospital at Whitfield. The State explained its concern that Boone:

may at some point during this trial speculate as to the mental abilities if that were to come up. Even with no motive, especially her being sympathetic in that regard ... I think we have the right to strike somebody that works at a mental institution, especially in this case.

¶ 52. After listening to the State’s race-neutral reasons for its peremptory strikes, the circuit judge overruled Russell’s objection, finding that the State had provided sufficient race-neutral justifications for each of its strikes. We note that precedent requires that we give great deference to the circuit court’s findings of whether or not a peremptory challenge was race neutral, see Manning, 765 So.2d at 519 (¶ 8); Booker, 5 So.3d at 358 (¶ 3). Additionally, we acknowledge that the supreme court has accepted the following as race-neutral reasons for the exercise of peremptory challenges: living in a “high[-]crime” area, body language, demeanor, prosecutor’s distrust of the juror, inconsistency between oral responses and juror’s card, criminal history of juror or relative, social work and other types of employment, and religious beliefs, and inattentiveness. Hicks v. State, 973 So.2d 211, 220 (¶¶ 27-28) (Miss.2007) (internal citations omitted). The record demonstrates that the circuit court properly made a sincere effort to weigh and examine the race-neutral reasons provided by the State. Nothing in the record before us reveals that the circuit court abused its discretion in finding that the State had provided sufficient race-neutral reasons for its peremptory strikes. Thus, we find no merit to this issue.

¶ 53. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, AGGRAVATED ASSAULT, AND COUNT II, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCE AS A HABITUAL OFFENDER OF LIFE FOR EACH COUNT, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, ISHEE, ROBERTS AND RUSSELL, JJ„ CONCUR. BARNES AND MAXWELL, JJ„ CONCUR IN PART AND IN THE RESULT.

      . This document does not appear in the record.


author: IRVING, P.J.,

text:
    Robert L. McCLATCHY III, Appellant v. BROTHERHOOD’S RELIEF & COMPENSATION FUND, Appellee.
    No. 2010-CA-01427-COA.
    Court of Appeals of Mississippi.
    Aug. 23, 2011.
    Rehearing Denied Nov. 15, 2011.
    Certiorari Denied Feb. 9, 2012.

      C.E. Sorey II, attorney for appellant.
    Robert C. Latham, attorney for appel-lee.
    Before IRVING, P.J., ISHEE and CARLTON, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. This appeal arises out of a claim filed with the Brotherhood’s Relief & Compensation Fund (BRCF), a non-profit organization for railroad workers, by Robert L. McClatchy III. McClatchy was employed by the Kansas City Southern Railroad (KCSR) when he was terminated for his failure to report an injury that he had received while working. McClatchy then filed a claim with BRCF, which was denied. McClatchy appealed BRCF’s decision to the Adams County Circuit Court, which found that BRCF was entitled to summary judgment. Feeling aggrieved, McClatchy appeals and asserts that the circuit court erred in granting summary judgment on behalf of BRCF.

¶ 2. Finding no error, we affirm the circuit court’s judgment.

FACTS

¶ 3. On February 3, 2007, McClatchy was working as a conductor for KCSR when he fell and twisted his knee. McClatchy was aware that the KCSR’s rules and regulations required that he report any work-related injury immediately; however, McClatchy did not do so. Over two weeks later, McClatchy was at work and limping as a result of the injury when his supervisor asked him why he was limping. McClatchy told his supervisor that he had injured his knee in a fall on February 3.

¶ 4. McClatchy was removed from service for failing to report his injury. On March 6, 2007, after an investigation by the railroad, McClatchy was terminated from his employment. Three days later, McClatchy filed a claim for “held out of service” benefits with BRCF. On March 14, 2007, BRCF denied McClatchy’s claim. McClatchy filed an appeal of that decision on April 11, 2007; the appeal was also denied by BRCF.

¶ 5. BRCF’s constitution states that a member is not eligible for “held out of service” benefits if his claim is “based in whole or in part upon refusal to perform any duty or service for the employer, insubordination[, or] misrepresentation of facts to the employer.” The definitions in BRCF’s constitution note that a member cannot be found to be “held out of service” if he was disciplined “because of any willful or intentional violation or infraction of any ... rule ... of his employer.... ” BRCF ultimately found that McClatchy’s failure to report his injury was a willful and intentional violation of his employment obligations. BRCF’s constitution states the following regarding appeals in cases such as McClatchy’s: “Whether offenses are willful or intentional shall be determined within the discretion of the Board of Directors[,] and no appeal shall lie therefrom.” (Emphasis added).

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. Rule 56(c) of the Mississippi Rules of Civil Procedure states that summary judgment should be granted 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.” As stated by the Mississippi Supreme Court, “[i]t is well-settled law that clubs and societies, including labor unions, have the right to establish their own rules ... and qualification for membership.” Lowery v. Int’l Bhd. of Boilermakers, Iron Ship Builders & Helpers of Am., 241 Miss. 458, 472, 130 So.2d 831, 836 (1961). “[Judicial review of disciplinary proceedings of a voluntary association should be limited to determining only whether the member disciplined received procedural due process as required by the Fourteenth Amendment to the United States Constitution, and whether the association has conducted its inquiry in accordance with its own rules of procedure.” Multiple Listing Serv. of Jackson, Inc. v. Century 21 Cantrell Real Estate, Inc., 390 So.2d 982, 983 (Miss.1980).

¶ 8. Here, BRCF’s constitution clearly states that members are not entitled to “held out of service” benefits if they committed a willful or intentional violation of an employer’s rules and regulations. The constitution further states that BRCF’s determination that a violation was willful or intentional is final and unappealable. After reviewing McClatchy’s case, BRCF found that his failure to report his injury was a willful or intentional violation of the KCSR’s rules.

¶ 9. In its order granting summary judgment, the circuit court stated the following:

The undisputed facts are that the plaintiff sustained an injury at work, thought it would resolve itself, and only reported it to his employer days later, while he was working with a noticeable limp. Plaintiffs employment rules clearly require immediate reporting of any on the job injury.
Again, each party seeks to paint the essentially undisputed facts in the light most favorable to their position. Defendant contends that plaintiff willfully violated the rules by failing to immediately report an injury, resulting in his termination. Plaintiff contends that he did not willfully fail to report an injury, thinking it was only some temporary soreness in his knee, which failed to resolve and left him unexpectedly limping days later.
For purposes of summary judgment, any reasonable doubt of genuine issues of fact are to be resolved against the moving party. The court is not to weigh the sufficiency of the evidence on either side of the issue, just seek to identify if it is there. It appears to the court that the plaintiff has at least raised a genuine issue of fact as to whether he “willfully” failed to report an injury. It can reasonably be argued that every bump, bruise, or other pain[-]causing event while at work does not necessarily constitute a know[n] injury, and that failing to immediately report same is not “willfully” violating the rule of immediate injury reporting.
However, the constitution significantly provides that “whether offenses are willful or intentional shall be determined within the discretion of the Board of Directors and no appeal shall lie therefrom.” In this case[,] the initial denial of benefits was appealed by the plaintiff to the Board of Directors, which denied same.
While there is a genuine issue of fact as to whether the plaintiffs actions were willful or not, by contract, the constitution vests that discretion in the Board of Directors. The court finds that there is no genuine issue of fact that the Board of Directors abused their contractually vested discretion in any way. It would appear that the reason for this provision is the proposition that for a closed railroad employee organization such as this, the Board of Directors is in a better position than the courts and juries to decide the discretionary issues involved, in line with the purpose for the member benefits and protections from the actions of railroad management.
For the reasons set out above, the court finds that there are no genuine issues of fact for a jury trial, and summary judgment is therefore granted in favor of the defendant.

Having reviewed the record, this Court cannot find reversible error with the circuit court’s judgment. As the circuit court noted, BRCF’s constitution clearly vested the Board of Directors with the discretion to determine whether a particular violation was willful or intentional. BRCF found that McClatchy’s failure to report was willful and intentional. As a private organization, BRCF has the discretion to establish its own rules and regulations. McClatchy has not provided any evidence or authority to suggest that BRCF’s constitution was contradictory or was not followed by BRCF in denying McClatchy’s claim for benefits. Accordingly, we agree with the circuit court that there was no genuine issue of material fact and that summary judgment was appropriate.

¶ 10. This contention of error is without merit.

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

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


author: IRVING, P.J., for the Court:

text:
    Roger PATTERSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01353-COA.
    Court of Appeals of Mississippi.
    Aug. 23, 2011.
    Rehearing Denied Nov. 15, 2011.
    Certiorari Denied Feb. 9, 2012.
    W. Daniel Hinchcliff, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before IRVING, P.J., ISHEE and CARLTON, JJ.
   IRVING, P.J., for the Court:

¶ 1. This appeal arises out of Roger Patterson’s conviction, in the Calhoun County Circuit Court, for sale of a controlled substance (cocaine) and resulting sentence of twenty years in the custody of the Mississippi Department of Corrections, with eight years suspended, twelve years to serve, and five years of post-release supervision. Patterson alleges that his statutory and constitutional rights to a speedy trial were violated by the amount of time that it took to bring him to trial.

¶ 2. Finding no reversible error, we affirm the circuit court’s judgment.

FACTS

¶ 3. Patterson was arrested and charged with sale of cocaine as the result of a sting operation involving a confidential informant. As Patterson has not challenged the factual basis for his conviction, we will discuss only those facts that are pertinent to the issue raised by him in this appeal.

¶4. The indictment against Patterson was filed on May 16, 2008. On June 13, 2008, Patterson waived arraignment. For reasons that are not related in the record, Patterson was not tried until August 10, 2010. Despite the delay of over two years, Patterson never asserted his right to a speedy trial or raised the issue of his trial date with the circuit court.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. Patterson claims that both his statutory and constitutional speedy-trial rights were violated. We note again that Patterson never asserted his speedy-trial rights or raised the issue of his trial date with the circuit court.

¶ 7. Patterson’s statutory claim is procedurally barred due to his failure to raise it with the circuit court. Drummond v. State, 33 So.3d 507, 512 (¶ 16) (Miss.Ct.App.2009); Smiley v. State, 798 So.2d 584, 587 (¶ 7) (Miss.Ct.App.2001).

¶ 8. The Mississippi Supreme Court has set out the standard for reviewing constitutional speedy-trial claims that are raised for the first time on appeal:

Given that the constitutional right to a speedy trial is a fundamental right, see Klopfer [v. State of North Carolina ], 386 U.S .... 213, 87 S.Ct. 988, 18 L.Ed.2d 1 [ (1967) ], this Court must determine whether plain-error review is applicable, i.e., whether an “error of the trial court has impacted upon a fundamental right,” Sanders [v. State], 678 So.2d [663,] 670 [ (Miss.1996) ], and is “so fundamental that it generates a miscarriage of justice.” Morgan [v. State ], 793 So.2d [615,] 617 [ (¶ 9) (Miss.2001) (citations omitted) ]. Absent the plain-error criteria being satisfied unequivocally, appellate courts are loath to address issues not presented to the trial court.

Dora v. State, 986 So.2d 917, 925 (¶ 19) (Miss.2008). The Dora court went on to note that Terry “Dora seeks to leapfrog over the required plain-error analysis by making Barker Hgenre assertions, i.e., prejudice caused by length of delay, prejudice by virtue of the amended indictment which included prior felony convictions, and prejudice due to a change in [a witness’s] testimony.” Id. at 925-26 (¶20).

¶ 9. Similarly, Patterson makes blanket assertions of prejudice rather than pointing out any instance of actual prejudice. However, he acknowledges that his claim must constitute plain error to proceed and points out that the State bears the burden of bringing a defendant to trial and that “such a critical and basic right as the right to a speedy trial should not be summarily dismissed where more than two years have elapsed.” He cites no case for the proposition that delays of any particular length automatically overcome the procedural bar or constitute plain error, and this Court knows of no such authority. We note that “[t]hree years, three months, and six days elapsed between Dora’s arrest and trial.” Dora v. State, 986 So.2d 965, 971 (¶ 18) (Miss.Ct.App.2007) (overruled on other grounds). It appears from the record that Patterson was arrested in May 2008, and his trial commenced in August 2010; accordingly, approximately two years and three months elapsed between his arrest and his trial. We note that this amount of time is significantly less than the amount of time that elapsed in Dora; nonetheless, our supreme court affirmed Dora’s conviction. We find no reason to do otherwise in this case.

¶ 10. This contention of error is without merit.

¶11. THE JUDGMENT OF THE CALHOUN COUNTY CIRCUIT COURT OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH EIGHT YEARS SUSPENDED, TWELVE YEARS TO SERVE, AND FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CALHOUN COUNTY.

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

      . Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).