author: RANDOLPH, Justice, KITCHENS, Justice,

text:
    The ESTATE OF Abner K. NORTHROP, Jr., Abner K. Northrop, III, Administrator v. Davis HUTTO, Stanley Turner, Memorial Hospital at Gulfport and Thomas Letard, M.D.
    No. 2007-CT-00355-SCT.
    Supreme Court of Mississippi.
    May 21, 2009.

      Floyd J. Logan, Gulfport, attorney for appellant.
    Patricia K. Simpson, Gulfport, Ross Douglas Vaughn, Fredrick B. Feeney, Margaret P. Mcarthur, attorneys for ap-pellees.
   ON WRIT OF CERTIORARI.

RANDOLPH, Justice,

for the Court.

¶ 1. This medical malpractice case is before this Court on writ of certiorari. A divided Court of Appeals reversed a grant of summary judgment in favor of the defendants. Northrop v. Hutto, 9 So.3d 388, 2008 Miss.App. LEXIS 352 (Miss. Ct.App. June 10, 2008). The issue before the Court is what testimony is required from a medical expert witness to establish a prima facie case sufficient to defeat a motion for summary judgment in a medical-malpractice case. Our body of law requires medical experts to articulate a specific, objectively-determined standard of care. The legal requirement remains unchanged. The plaintiff must establish the existence of a recognized duty to the patient, and a breach of that duty, which results in injury proximately caused by the breach.

¶ 2. We conclude that the Court of Appeals decision is in conflict with its own prior decisions and the published opinions of this Court. The Court of Appeals majority held that summary judgment was inappropriate because the plaintiff, as non-movant, should benefit when doubt exists as to whether a fact is at issue. Northrop, 9 So.3d at 390, 2008 Miss.App. LEXIS 352 at *9. However, the first bridge that must be crossed is establishing duty, which is a legal question. If a plaintiff fails to establish an objectively-determined standard of care and attendant breach by competent medical testimony, summary judgment is appropriate.

FACTS

¶ 3. The plaintiff, Abner K. Northrop, Jr. (“Northrop”), had a radical prostatecto-my at the Memorial Hospital at Gulfport in March 1999. His surgeon was Dr. Ronald Brown (“Dr. Brown”). Anesthesia services were provided by the defendants, Thomas P. Letard, M.D. (“Dr. Letard”), Davis R. Hutto, CRNA (“Hutto”), and Stanley Turner, CRNA (“Turner”). Dr. Letard led the anesthesia team and supervised the two CRNAs. Dr. Letard was in the operating room at the beginning of the procedure and left Hutto in attendance after the intubation and induction of Northrop. Turner relieved Hutto near the end of the procedure.

¶ 4. Northrop had multiple intravenous catheters (“IVs”) in place, including a peripheral IV in each arm and a central line in his neck. All IV lines were in place and functioning when Northrop was brought to the operating room. Northrop’s arms were extended at ninety-degree angles from his body, and were taped to arm boards. Northrop’s upper body, including his arms, was covered with a Bair Hug-ger and a blanket. Hutto taped the patient’s arms to the boards, placed the Bam Hugger and blanket, and taped the blanket to the boards. The IV site in the left arm was latent during the surgery. The surgery lasted approximately three hours and ten minutes. During this time, among their many other responsibilities, the anesthesia team members were responsible for maintaining the IV lines. The team monitored the function of the IVs by multiple methods, including checking vital signs every five minutes, monitoring the IV drip rate, and monitoring the patient’s effective response to IV medications and fluids.

¶ 5. Upon completion of the surgery, Turner removed the Bah- Hugger and blanket and discovered that the IV in the left arm had extravasated. Turner removed the IV and informed Dr. Letard. The team called Dr. Alton H. Dauterive (“Dr. Dauterive”), a vascular surgeon. Dr. Dauterive diagnosed compartment syndrome and performed a fasciotomy on Northrop while he was still under anesthesia. A few days later, Dr. Dauterive closed the incisions. One incision required a skin graft, which was taken from Northrop’s thigh. Northrop’s arm fully recovered, albeit with some scarring, with full range of motion and all nerves intact.

PROCEDURAL HISTORY

¶ 6. Northrop filed suit, alleging medical malpractice, in the Circuit Court of the First Judicial District of Harrison County, against Hutto, Turner, Dr. Letard, and the Memorial Hospital at Gulfport. Upon completion of discovery, the defendants moved for summary judgment. The circuit court granted summary judgment for the defendants, finding that Northrop’s expert, Dr. Felipe Urclaneta ,(“Dr. Urdane-ta”), had not articulated a standard of care, nor had he shown that any of the defendants had breached the standard or that any breach was the proximate cause of Northrop’s injuries. A divided Court of Appeals reversed the grant of summary judgnent and remanded the case to the circuit court. Id. at 391-92, 2008 Miss. ■ App. LEXIS *10. The dissent concluded that Northrop’s expert had “failed to establish the standard of care, and even if a standard of care was established, there exists no genuine issue of material fact as to the elements of breach and causation.” Id. The Court of Appeals denied the defendants’ motion for rehearing. Northrop v. Hutto, 2008 Miss.App. LEXIS 652 (Miss. Ct.App. Oct. 21, 2008). This Court granted the defendants’ petitions for certiorari. Northrop v. Hutto, 2009 Miss. LEXIS 54 (Miss. Feb. 3, 2009).

ANALYSIS

¶ 7. We consider whether Northrop’s expert articulated the required standard of care.

f 8. Our standard of review is de novo, as follows:

The circuit court’s grant of a motion for summary judgment is reviewed by this Court de novo. See Wilner v. White, 929 So.2d 315, 318 (Miss.2006).... In this Court’s de novo review, “[t]he evidence must be viewed in the light most favorable to the party against whom the motion has been made.” Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993) (citation omitted).

Kilhullen v. Kan. City S. Ry., 2009 Miss. LEXIS 87, *15-16 (Miss. Jan. 6, 2009).

Whether Northrop’s expert articulated the required standard of care.

¶ 9. To make a prima facie case of medical malpractice, the following elements must be shown:

the existence of a duty on the part of the physician to conform to the specific standard of conduct, the applicable standard of care, the failure to perform to that standard, that the breach of duty by the physician was the proximate cause of the plaintiffs injury, and that damages to plaintiff have resulted.

Barner v. Gorman, 605 So.2d 805, 808-09 (Miss.1992). This Court has stated that the “general rule is that the negligence of a physician may be established only by expert medical testimony.” Palmer v. Biloxi Reg’l Med. Ctr., 564 So.2d 1346, 1355 (Miss.1990) (quoting Cole v. Wiggins, 487 So.2d 203, 206 (Miss.1986)). A physician is under a duty to meet the national standard of care.

[G]iven the circumstances of each patient, each physician has a duty to ... treat ... each patient, with such reasonable diligence, skill, competence, and prudence as are practiced by minimally competent physicians in the same specialty or general field of practice throughout the United States....

Palmer, 564 So.2d at 1354 (citing Hall v. Hilbun, 466 So.2d 856, 873 (Miss.1985)). See also Maxwell v. Baptist Mem’l Hosp. Desoto, Inc., 958 So.2d 284, 289 (Miss.Ct. App.2007). The standard articulated must be objective, not subjective. This Court stated in Hall, “[e]mphasis is given the proposition that physicians incur civil liability only when the quality of care they render falls below objectively ascertained minimally acceptable levels.” Hall, 466 So.2d at 871 (emphasis added). See also Maxwell, 958 So.2d at 289 (witness who answered in terms of what he would do as a physician was found not to be articulating an objective standard).

¶ 10. The success of a plaintiff in establishing a case of medical malpractice rests heavily on the shoulders of the plaintiffs selected medical expert. The expert must articulate an objective standard of care. Excerpts of Dr. Urdaneta’s testimony are as follows:

Q: And you didn’t see anything in your review of the chart or the depositions of the parties to indicate that Mr. Northrop was not getting the desired effects of the medications, did you?
A: Not really.
A: In my opinion, I think it was basically the fact that they did not monitor the IV fluids that were actually given to the patient. They were not looking at the extremity where those IV fluids were being given.
Q: Do you know why the extravasation occurred in this case?
A: No, I don’t know.
Q: Do you know when it occurred?
A: No.
A: ... but it could have happened at any point.
Q: It could have happened five minutes before they took the curtains down?
A: Theoretically, yes....
... Q: And what do you know was given through that left IV in this case?
A: ... just basically IV fluids, crystal-oids as well as blood.
A: The extravasation, per se, is not proof of negligence, that is correct.
Q: An extravasation can happen suddenly?
A: Yes.
Q: Without warning?
A: Without warning.
Q: ... From your review of these records, what about Mr. Northrop’s course of this procedure would have alerted a reasonably careful anesthesiologist to the presence of an extravasation?
A: The only — reviewing the records, from the vital signs there’s no way you can tell an extravasation is occurring.
Q: Is it your contention that the standard of care requires visual monitoring of the actual placement of the IV into the patient’s body, wherever it may be, in the extremity or otherwise, throughout the entire case?
A: That’s not according — in other words, the [American Board of Anesthesiology] does not state particular — that particular mandate. It basically states that you need to be monitoring the cardiovascular, the respiratory, the oxygenation as well as the — what’s the called the end tidal C02. There’s no particular
mandate that you need to actually be looking at the extremity, if that’s what you’re referring.
A: I don’t think there’s any particular mandate you have to look at the extremities, but you have to monitor where you’re [sic] IV fluids are going....
A: ... I don’t think you will find anywhere a treatise or any book or anything that states that you need to be looking ... at the extremity every so often or any ... period of time. I’m sorry. But I think you have to monitor your patient globally.
Q: ... the standard of care does not specifically require the anesthesiologist to pull up the Bair Warmer [sic] and the warming blanket to look at that site as the case is going on?
A: You will not find a standard that says you need to Bair Hugger [sic] every so often, if that’s what you’re referring to.
Q: That’s what I’m asking you. You would agree that is not the standard of care?
A: That is not the standard of care, correct.
Q: And would you agree that in those anesthesia cases where the patient’s arms are tucked to the side, the peripheral lines are sometimes used?
A: Yes.
Q: ... Would you agree that the site where the line goes into the arm is not visible to the anesthesiologist?
A: That’s correct.
Q: ... it would not be possible to view the site....
A: ... I will not say impossible but it will be a major undertaking to look at the arm where — the extremity where the IV is.
Q: And it’s not routinely done, is it?
A: If the arm is tucked, usually not.
Q: If there’s no indication that there’s a problem with the anesthesia, you don’t go and visually observe the IV site in those cases, do you?
A: That is correct.
A: ... if the arms are on the side, they’re not part of the sterile field so you actually have access to them.
Q: So, just because you have access to them, you’re required to look at them; is that your testimony?
A: I did not say required.
Q: Well, required by the standard of care. No?
A: I don’t think there is any standard of care that says if the arms are on the side you need to look at them. I think it’s part of the common sense that if you have access to them ... in my opinion you should actually consider that you can.
Q: And you’ve told me that the standard of care does not require a visual observation of the arms out to the side? A: That’s correct.
Q: ... the standard of care does not specifically require the person to pull the ... warming blanket up to look at the site where the IV goes into the hand; correct?
A: Correct.
Q: ... you said this standard of care that you’re testifying that was breached by these CRNAs is contained in these texts and articles that you have presented to us today?
A: I would not — they do not specifically say CRNAs should be monitoring anything in particular....
Q: ... How often, in your opinion, were the CRNAs supposed to look at the arm during this procedure?
A: I have no specific time. There’s no standard or no pattern that you have to actually follow....
Q: So, obviously, Doctor, this would not indicate the standard of care in March of 1999, would it?
A: I don’t — I’m not sure what you mean by describing the standard of care. None of [the documents brought to the deposition] deal with the standard of care. They are all case reports of infiltration, different problems with extrava-sation. I have not brought anything on the standard of care if that’s what you’re referring to.
Q: ... There is no textbook of anesthesia that says in writing the standard of care requires visual or palpation observation of the fluid actually going into the vein during an ongoing case; that is correct?
A: That is correct.

¶ 11. Dr. Urdaneta distinguished a national standard of care from his own preferences and practices in his testimony. He discussed the proper way for an anesthesiologist or CRNA to document blood pressure readings. Excerpts from this part of his testimony include: “The only thing I can tell you is that from personal— and the way I teach my residents to do it is.... But that’s personal. That’s not universally accepted. That’s my personal way of doing it.” On another question, he responded, “That’s universal. That’s a standard, yes.” Then he reverted to “But that’s, again, not universal. That’s the way we do it here at the University of Florida.” After acknowledging that a requirement to observe IY sites “might not be written as part of the standard of care,” he maintained that an anesthesiology team member should manually and visually check IV insertion sites periodically. When pressed on the meaning of “periodically,” he replied, “I cannot — I mean, it varies. It’s so variable. It deals with so many variables. I usually — I make sure when I put my IVs initially that I don’t see any infiltration. But that’s just a personal observation. And fortunately, since I deal mostly with cardiac patients, I usually have access to the arm, so I’m always looking....”

¶ 12. When asked to provide documentation of his claims about visual inspection and palpation of IV injection sites, Dr. Urdaneta was unable to do so. He repeatedly said that no such mandate exists as part of the standard of care. He stated, “I don’t think you will find anywhere a treatise or book or anything that states ... that you need to look at the extremity every so often or ... any period of time.” When asked if any of the medical articles and texts he brought to his deposition contained a confirmation of his position, he replied, “they do not specifically say CRNAs should be monitoring anything in particular.” He summed up the articles by saying they require constant vigilance.

¶ 13. The standard of care as posed by Northrop’s expert, “constant vigilance,” fails to satisfy multiple long-held principles of Mississippi law which have been confirmed repeatedly by holdings of this Court, as well as those of the Court of Appeals. Dr. Urdaneta’s personal preference does not establish a national standard of care. See Barner, 605 So.2d at 808-09; Palmer, 564 So.2d at 1354. The requisite standard is objective, not subjective. See Hall, 466 So.2d at 871; Maxwell, 958 So.2d at 289. It is clear that Northrop’s expert failed to establish an objective standard of care to make a prima facie case of medical malpractice.

¶ 14. For the reasons stated, we reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of the Circuit Court of the First Judicial District of Harrison County.

¶ 15. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY, FIRST JUDICIAL DISTRICT, IS REINSTATED AND AFFIRMED.

WALLER, C.J., CARLSON, P.J., DICKINSON, LAMAR, AND PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, P.J. CHANDLER, J., NOT PARTICIPATING.

KITCHENS, Justice,

Dissenting.

¶ 16. Because I am satisfied that Northrop presented evidence of an objective standard of care through a qualified expert witness, namely, the standard of constant vigilance, I dissent from today’s judgment. I would affirm the decision of the Court of Appeals and remand this case for trial in the Circuit Court of the First Judicial District of Harrison County.

GRAVES, P.J, JOINS THIS OPINION.

      . Hutto and Turner are Certified Registered Nurse Anesthetists (''CRNA") in the employ of the hospital. Dr. Letard is a medical doctor specializing in anesthesiology.

      . Bair Huggers are forced-air warming systems used to prevent hypothermia while a patient is under anesthesia and cannot maintain body temperature.

      . Extravasation is leakage of IV fluid outside the intended vessel and into the surrounding tissue.

      .Compartment syndrome is a condition caused by increased fluid pressure in tissues. A fasciotomy is a procedure in which incisions are made to allow for drainage to release pressure.


source: Caselaw Access Project

author: ROBERTS, J., CARLTON, J.,

license: Public Domain

text:
    Abner K. NORTHROP, Jr., Appellant, v. Davis HUTTO, Stanley Turner, Memorial Hospital at Gulfport, and Thomas Letard, M.D., Appellees.
    No. 2007-CA-00355-COA.
    Court of Appeals of Mississippi.
    June 10, 2008.
    Rehearing Denied Oct. 21, 2008.
    Floyd J. Logan, Gulfport, attorney for appellant.
    Patricia K. Simpson, Ross Douglas Vaughn, Fredrick B. Feeney, Gulfport, Margaret Franklin, Puckett McArthur, attorney for appellees.
    Before MYERS, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. Abner K. Northrop, Jr., sued Memorial Hospital at Gulfport (MHG), anesthesiologist Dr. Thomas LeTard, and nurse anesthetists Davis Hutto and Stanley Turner for medical malpractice due to surgical complications that will be discussed in greater detail below. MHG, Dr. LeTard, Hutto, and Turner successfully moved for summary judgment. Northrop appeals and claims the circuit court erred when it granted the Appellees’ motion for summary judgment. After careful consideration, we agree. Accordingly, we reverse the judgment of the circuit court and remand this matter for proceedings consistent with this opinion.

FACTS

¶ 2. At approximately 8:00 a.m. on March 2, 1999, Northrop underwent surgery at MHG. Dr. LeTard administered anesthesia. Northrop’s arms were extended and secured to arm boards. Hutto placed a “Bair Hugger” over Northrop and placed a blanket over the Bair Hugger. Hutto also taped the blanket to the arm boards. At some point during the surgical procedure, Dr. LeTard left the operating room. Hutto was assigned to monitor Northrop’s anesthesia.

¶ 3. At 11:05 a.m., Turner relieved Hut-to. Northrop’s surgery ended shortly af-terwards. When Turner removed the blanket and the Bair Hugger from Northrop’s arms, Turner discovered that the intravenous line (IV) in Northrop’s left arm had “extravasated” and that Northrop had developed injuries due to a condition known as “compartment syndrome.” While Northrop was still under anesthesia in the operating room, Dr. Alton Dauterive, a vascular surgeon, performed an emergency procedure termed a “fascioto-my” to relieve the pressure in Northrop’s left arm. Four days later, Dr. Dauterive performed a skin graft in which he removed a section of skin from Northrop’s thigh and placed it on Northrop’s left arm.

PROCEDURAL HISTORY

¶ 4. Northrop sued the Appellees in the Harrison County Circuit Court. Northrop claimed the Appellees were negligent in failing to properly monitor his arm and the IV site. The Appellees denied that they were negligent. Northrop designated Dr. Felipe Urdaneta as his expert witness. Dr. Urdaneta testified by deposition on October 15, 2004.

¶ 5. MHG, Hutto, and Turner filed a motion for summary judgment. Dr. Le-Tard, represented by separate counsel, filed a joinder to that motion. The Appel-lees argued that summary judgment was appropriate because Dr. Urdaneta could not testify as to what caused the extrava-sation or when the extravasation occurred. Said differently, the Appellees claimed there was no genuine issue of material fact whether they breached the relevant standard of care. The circuit court agreed and held that there was no genuine issue of material fact related to whether any assumed breach was the proximate cause of Northrop’s damages. Northrop appeals.

WHETHER THE CIRCUIT COURT ERRED WHEN IT GRANTED THE AP-PELLEES’ MOTION FOR SUMMARY JUDGMENT.

¶ 6. Northrop claims the circuit court erred when it granted summary judgment. This Court conducts a de novo review of a circuit court’s decision to grant a motion for summary judgment. Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993). Viewing the evidence in the light most favorable to the non-moving party, summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there'is no genuine issue as to any material fact.” M.R.C.P. 56(c); see Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983). For summary judgment purposes, “[a] fact is material if it tends to resolve any of the issues properly raised by the parties.” Webb v. Jackson, 583 So.2d 946, 949 (Miss.1991) (citation and internal quotations omitted).

¶ 7. Northrop claimed that the Appellees committed medical malpractice. To prove a prima facie case of medical malpractice, a plaintiff must demonstrate four key elements: (1) a duty to conform to a standard of care; (2) a breach of that duty; (3) proximate cause; and (4) as a result, the plaintiff suffered damages. Barner v. Gorman, 605 So.2d 805, 808-09 (Miss.1992). Generally, expert testimony is necessary to demonstrate these elements. Palmer v. Biloxi Reg’l Med. Ctr., 564 So.2d 1346, 1355 (Miss.1990).

1. Duty

¶ 8. Mississippi physicians have a duty to exercise reasonable and ordinary patient care. Id. at 1354. An expert must “identify and articulate” the standard of care with which a defendant allegedly failed to comply. Id. at 1355. According to Dr. Urdaneta, the standard of care was constant' vigilance and monitoring of anesthesia. Dr. Urdaneta’s testimony indicated that vigilance concerning an unconscious patient is particularly important because the patient cannot communicate the painful side effects of extra-vasation and compartment syndrome.

¶ 9. Dr. Urdaneta testified that watching the IV drip is only part of constant overall vigilance, and monitoring vital signs alone is not sufficient when, as with Northrop, there are multiple IV lines. Dr. Urdaneta testified that basic vigilance included “actually looking at the extremity [and] feeling the extremity.” Considered in the light most favorable to Northrop, Dr. Ur-daneta’s testimony established that the Appellees bore the duty to exercise overall vigilance and monitoring of the IV lines and the extremity in which the lines were inserted. Further, Dr. Urdaneta’s testimony demonstrated that the duty of vigilance included visual inspection of the IV site and the extremity and feeling the extremity to check for increased pressure due to extravasation.

2. Breach

¶ 10. The Appellees argue that Northrop failed to demonstrate a genuine issue of material fact whether they breached the standard of care. We disagree. It is undisputed that no one observed Northrop’s arm during the entire procedure because it was covered by the Bair Hugger and the blanket. Dr. Urdaneta testified that the Appellees bi-eached the standard of constant vigilance and monitoring of anesthesia when they failed to monitor the IV fluids they administered. Though Dr. Urdaneta testified that there is no standard as to how often or at what intervals one should visualize or feel an extremity, when considered in the light most favorable to Northrop, Dr. Urdaneta’s testimony demonstrated that the Appellees should have visualized and felt Northrop’s arm at some point during the procedure.

¶ 11. The Appellees submit that Dr. Urdaneta testified that the standard of care did not require actually lifting the Bair Hugger and the blanket to observe Northrop’s arm. However, that is not an accurate characterization of Dr. Urdane-ta’s deposition testimony. Dr. Urdaneta testified that lifting a Bair Hugger and a blanket was not necessary when a patient’s arms were at his side. Dr. Urdaneta explained that under those circumstances, lifting the Bail’ Hugger and blanket would violate what he termed the “sterile field.” However, Northrop’s arms were extended away from his body. Dr. Urdaneta testified that it is not a violation of the sterile field to lift the Bair Hugger and the blanket when a patient’s arms are extended.

3. Proximate Cause

¶ 12. One may prove proximate cause by establishing a causal connection between an injury and a defendant’s actions. Palmer, 564 So.2d at 1365. Stated differently, “proximate cause arises when the omission of a duty contributes to cause the injury.” Clayton v. Thompson, 475 So.2d 439, 445 (Miss.1985). The circuit court found that there was no genuine issue of a material fact related to whether any breach of duty by the Appellees was the proximate cause of Northrop’s damages. We disagree.

¶ 13. The circuit court based its finding on the concept that no one could determine exactly when extravasation occurred. Dr. Urdaneta testified that he could not determine exactly when the extravasation occurred because no one measured the compartment pressure in Northrop’s arm. Because no one measured the compartment pressure, there was no way to determine how much fluid extravasated into Northrop’s arm and, by extension, no way to determine exactly when the extravasation began. It is undisputed that extrava-sation can happen suddenly and without warning. However, the issue is not whether the Appellees’ failure to monitor caused the extravasation. The appropriate issue is whether the Appellees’ failure to monitor allowed the extravasation to cause injuries and damages from the compartment syndrome, which would not have occurred, but for the Appellees’ breach of duty. There is no dispute that Northrop was injured because of the compartment syndrome, which was caused by the extravasation.

¶ 14. We are required to examine the evidence in the light most favorable to Northrop. Viewing Dr. Urdaneta’s testimony in that light, Northrop demonstrated that, but for the Appellees’ failure to monitor the IV fluids, Northrop’s injuries due to compartment syndrome would have been avoided or at least mitigated. Suffice it to say, reasonable jurors could differ on the factual questions at issue. Under the circumstances, summary judgment is inappropriate. Russell v. Orr, 700 So.2d 619, 624(1117) (Miss.1997). We are mindful of the following language from the Mississippi Supreme Court: “When doubt exists whether there is a fact issue, the non-moving party gets its benefit. Indeed, the party against whom the summary judgment has been sought should be given the benefit of every reasonable doubt.” Brown, 444 So.2d at 362.

¶ 15. Having found that Northrop demonstrated a genuine issue of material fact incident to all prima facie elements of a medical malpractice claim, we find that the circuit court erred when it granted the Appellees’ motion for summary judgment. Accordingly, we reverse the judgment of the circuit court and remand this matter for proceedings consistent with this opinion.

¶ 16. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER AND GRIFFIS, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES, J. ISHEE, J., NOT PARTICIPATING.

CARLTON, J.,

dissenting.

¶ 17. I disagree with the majority’s conclusion that the trial court erred in granting the Appellees’ motion for summary judgment. Accordingly, I respectfully dissent. I find that Dr. Felipe Urdaneta’s testimony failed to establish the standard of care, and even if a standard of care was established, there exists no genuine issue of material fact as to the elements of breach and causation. Therefore, I would affirm the trial judge’s grant of summary judgment in favor of the Appellees.

¶ 18. The majority concludes that Dr. Urdaneta established that the standard of care for anaesthesiologists included visually inspecting the IV site and the extremity, as well as feeling the extremity during surgery to check for pressure due to extra-vasation. I find that Dr. Urdaneta’s testimony as to this standard of care was tenuous at best, and his testimony utterly failed to establish this as the standard of care. At most, his testimony established a standard of overall and constant vigilance, which was met in this case. Dr. Urdane-ta’s testimony was succinctly and, in my view, accurately summarized by the trial judge in her order as follows:

Dr. Urdaneta testified that it is his practice to visualize an IV site such as Northrop’s during surgery. He was repeatedly questioned about whether this was the standard of care. He testified that this was not a standard of care in and of itself. Nor was he able to point to any treatise, guideline or such making visualization of an IV site a standard of care. Dr. Urdaneta could not say how often or how many times during a surgery the site should be visualized. He admitted that there is no standard which would give any doctor or nurse anesthe-sist a guide as to when this visualization should take place. Dr. Urdaneta did, however!,] testify that the standard of care in his opinion was basically that of constant and overall vigilance on the part of anaesthesiologists or anesthetists.

¶ 19. Because Dr. Urdaneta testified that visual inspection of the IV site and the extremity and feeling the extremity was his 'personal practice, as distinguished from the nationally recognized practice, I find that his testimony was insufficient to establish this as the standard of care. See generally, Young v. Univ. of Miss. Med. Ctr., 914 So.2d 1272, 1276(15) (Miss.Ct.App.2005) (“Mississippi physicians are bound to adhere to nationally recognized standards of care and have a duty to exercise reasonable and ordinary patient care.”) (citing Palmer v. Biloxi Reg’l Med. Ctr. Inc., 564 So.2d 1346, 1354 (Miss.1990)).

¶ 20. Further, as noted by the trial judge, Dr. Urdaneta was unable to state how often or how many times the IV and/or the extremity should have been visually inspected throughout Northrop’s surgery. Thus, his criticism of the Northrop’s care is virtually reduced to this: the Appellees could have discovered the extravasation earlier. “ ‘Absent expert medical testimony which (a) articulates the duty of care the physician owes to a particular patient under the circumstances, [and] (b) identifies the particular(s) wherein the physician breached that duty and caused injury to the plaintiff patient, the plaintiffs claim for negligence ... must fail.’ ” Paepke v. N. Miss. Med. Ctr. Inc., 744 So.2d 809, 811(9) (Miss.Ct.App.1999) (quoting Phillips v. Hull, 516 So.2d 488, 491 (Miss.1987)). Because Dr. Urdaneta was unable to articulate a particular standard from which the Appellees’ deviated, I find that the trial judge properly granted the Appellees’ motion for summary judgment.

¶ 21. Assuming for argument’s sake that Dr. Urdaneta’s testimony minimally sufficed in establishing a standard of care, I find that the evidence failed to create a genuine issue of material fact as to whether the Appellees breached the standard of care and whether Northrop’s injuries were proximately caused by any such breach. It is undisputed that extravasation can occur suddenly and without warning. Indeed, Dr. Urdaneta testified that the extravasation’s occurrence itself did not indicate that the Appellees were negligent. There was no evidence presented that established either the cause of the extravasation or at what point during the surgery it occurred. In fact, Dr. Ur-daneta testified that the extravasation could have occurred at any time during Northrop’s surgery, even as late as five minutes before it was discovered. Additionally, it is undisputed that once the ex-travasation was discovered, the response was handled properly. As the trial judge found, “[tjhere is nothing to show that the injury or result would have been any different with visualization during surgery than that which occurred without the visualization of the IV site.” In my opinion, the evidence is simply insufficient to create a genuine issue of material fact as to whether Northrop’s injuries were proximately caused by the Appellees’ breach of the standard of care.

¶ 22. In light of the foregoing, I would affirm the trial judge’s grant of summary judgment in this case.

BARNES, J., Joins this separate written opinion.

      . We generally use specific names for litigants rather than generic terms such as ''Appel-lees.” However, due to the tedious nature that would involve referring to MHG, Dr. LeTard, Hutto, and Turner, individually, we will make an exception.

      . The Bair Hugger and the blanket were intended to keep Northrop warm during the procedure.

      .According to Dr. Felipe Urdaneta, ‘‘extrava-sation” occurs when an intravenously administered fluid or a drug ‘‘leaks outside the vessel.” Dr. Urdaneta provided several articles from medical journals. "Compartment syndrome” develops due to "increase[d] ... pressure within a muscle compartment to the extent that blood flow is compromised.” Mitchell D. Tobias, M.D., et al., Compartment Syndrome After Pressurized Infusion, British Journal of Anesthesia, Vol. 67 (1991).

      . The trial judge cited relevant authority and explained her rational in her order granting summary judgment, wherein she stated:
      In Brown v. Baptist Mem’l Hosp.-DeSoto, Inc., 806 So.2d 1131 (Miss.2002), the court addressed a similar situation. Brown's expert as well as the defendant doctor agreed that the injury to the Brown child could have been caused by factors other than any negligence of the defendants. That injury was a known complication of delivery of a child. The defendant doctor testified that he did not know when the injury occurred. Brown's expert agreed. Brown’s expert testified that he could not determine the quality of the defendant doctor's performance due to deficiencies in documentation of what had occurred. That lack of documentation, in the expert’s opinion, prevented him from telling whether or not the defendant doctor had handled the matter properly. The court affirmed the granting of summary judgment, finding that there was no showing that the doctor had "deviated from the requisite standard of care and the facts do not permit an application of the doctrine of res ipsa loquitur to fill that void.” Id. at 1135(19).
      Northrop’s case is similar to that in Brown, supra. It is not disputed that an extravasation can occur with any IV. It is also undisputed that no one can identify any cause of the extravasation in this case. Nor can anyone say when the extravasation occurred. Northrop maintains, as did Brown, that it is the inaction (lack of visualization of IV site versus lack of complete documentation in Brown's case) of the Defendant[s] which causes him to be unable to say when the extravasation occurred. The fact remains that no one can say that Defendants deviated from any standard of care in failing to visualize the IV site or that any such failure caused any injury or damage to Northrop.


author: GRIFFIS, J.,

text:
    Michael GOLDMAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-02100-COA.
    Court of Appeals of Mississippi.
    Sept. 2, 2008.
    Rehearing Denied Feb. 10, 2009.
    Certiorari Denied May 21, 2009.

      Julie Ann Epps, Canton, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before KING, C.J., GRIFFIS and CARLTON, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Michael Goldman was convicted of burglary of a dwelling (Count I), sexual battery (Count II), and aggravated assault (Count III). On appeal, Goldman argues that: (1) the jury instruction on Count III constructively amended the indictment, (2) the circuit court erred by refusing to allow the defendant to cross-examine the victim about her past sexual relationship with the defendant, (3) the victim’s medical records were improperly admitted, (4) the circuit court erred by meeting with the jury prior to sentencing, (5) he received ineffective assistance of counsel at trial, and (6) the cumulative errors taken together require that a new trial be granted. We find no error and affirm.

FACTS

¶ 2. Goldman was indicted on charges stemming from events during the late hours of May 29, 2003, and the early morning hours of May 30, 2003. Those events involved Emily, the sixteen-year-old victim, and Goldman, who was eighteen years old at the time.

¶ 3. At trial, Emily and Goldman gave very different versions of what happened that night. According to Emily, she was spending the night at her mother’s house and was alone because her mother was working the night shift. She was awakened around 1:00 a.m. when she received a phone call from a male who asked if her mother was home. Emily replied that her mother was not home and hung up the phone. The phone rang a second time, and Emily heard the same male voice ask if her brother was home. She replied that he was not, hung up the phone, and went back to bed. Later, she heard noises and saw a shadow moving inside the home. She called 9-1-1 and was told to remain on the line. She saw someone holding a knife come toward her room and then disappear for a moment. The person came back toward her room with a blanket covering his face.

¶ 4. Emily began to scream and beg the intruder not to stab her with the knife. A struggle ensued and the man removed Emily’s pants and underwear. He tried to force her to perform oral sex, but she resisted his advances. He then began to have sexual intercourse with her, and the knife fell onto the bed. Emily grabbed the knife, but the man got it back. Emily was cut on the thigh and neck during the struggle. The police then kicked in the front door of the home, entered the bedroom, and restrained the man. At that point, Emily identified the man as Michael Goldman.

¶ 5. The police observed Goldman on top of Emily as they entered the bedroom. After Goldman jumped up from the bed, the police could see that his penis was erect and covered with discharge. The officers testified that Goldman said he was drunk and had “f* * *ed up.”

¶ 6. Goldman’s defense was that the intercourse was consensual. He claimed to have known Emily since he was fifteen years old and testified that they had spent time together at school and at church. On the night of May 29, 2003, Goldman claimed that he borrowed a friend’s cell phone to make a call. He noticed that there was a missed call from Emily. He decided to call her and ask if he could come over. He testified that she said “sure,” so he went down the street to her house. He knocked on the door several times, but no one answered. He went back to his house to call Emily again. She told him that she did not hear him knocking on her door. He went back down to her house, but again he got no response at the door. He became worried that something was wrong so he began to knock on the windows. He saw that one window was open and became worried that someone had broken into the house. He returned to his car and grabbed his cell phone and a knife. He climbed in the window and slowly moved through the house. When he got to Emily’s room, she began to scream and beg him not to stab her. Goldman tried to calm her down by telling her that it was him and not an intruder.

¶ 7. Goldman claims that Emily eventually calmed down and pulled him to her. He thought that she wanted to have intercourse and testified that she was not pushing him away or telling him to get off of her. Thereafter, the police entered the room and arrested Goldman.

¶ 8. The jury found Goldman guilty of all three counts: Count I, burglary of a dwelling in violation of Mississippi Code Annotated section 97-17-23 (Rev.2006); Count II, sexual battery in violation of Mississippi Code Annotated section 97-3-95 (Rev. 2006); and Count III, aggravated assault in violation of Mississippi Code Annotated section 97-3-7 (Rev.2006). Goldman was sentenced to a term of twenty-five years for Count I; thirty years for Count II, to run concurrently to the sentence in Count I; and twenty years for Count III, to run consecutively to the sentences in Counts I and II. Goldman filed a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict that was denied by the circuit court. From this judgment, Goldman appeals.

ANALYSIS

1. Whether the circuit couH erred by alloiving ■the jury instruction on Count III to constructively amend the indictment.

¶ 9. Goldman claims that the jury instruction given on Count III constructively amended his indictment and changed both the method of the assault and the necessity of proving any injury. Count III of the indictment charged that Goldman “did willfully, unlawfully, purposely and knowingly attempt to or cause serious bodily injuries to [Emily], a human being, by striking and choking her.... ” The jury instruction submitted instructed the jury to find Goldman guilty of aggravated assault if it found beyond a reasonable doubt that Goldman “did wilfully, unlawfully, knowingly and fe-loniously attempt to cause or in fact did cause bodily injury to [Emily], a human being, with a knife, a deadly weapon.... ” Goldman argues that the jury instruction was a substantive amendment of the indictment which could have only been made by a grand jury.

¶ 10. In response, the State argues that Goldman did not make a contemporaneous objection at trial. Because Goldman did not object to the difference in language used in the instruction and the indictment, he is procedurally barred from raising the instruction as error. Davis v. State, 684 So.2d 643, 659 (Miss.1996). The State is correct, and the issue is procedurally barred. Notwithstanding the procedural bar, this issue is without merit.

¶ 11. An amendment to an indictment is permissible without a grand jury when the amendment is to form and not substance. Spann v. State, 771 So.2d 883, 898(¶ 44) (Miss.2000) (citing Miller v. State, 740 So.2d 858, 862(¶ 13) (Miss.1999)). In Spann, the supreme court stated:

It is well settled in this state ... that a change in the indictment is permissible if it does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant’s case. The test for whether an amendment to the indictment will prejudice the defense is whether the defense as it originally stood would be equally available after the amendment is made.

Id. (citations omitted).

¶ 12. First, Goldman argues that the State did not prove that he caused serious bodily injury by striking and choking as the indictment states. He claims that the absence of this evidence provided him a defense to the charge in Count III which he was not afforded by the absence of the “striking and choking” language in the jury instruction. Second, he claims that the instruction allowed the jury to find him guilty if they found that he caused or attempted to cause bodily injury with a knife; thus, the jury was not required to find that he caused an actual injury to Emily. Third, the indictment stated that Goldman caused serious bodily injury; however, the instruction merely required bodily injury.

¶ 13. We do not find any of Goldman’s arguments persuasive. Contrary to his contention, there was evidence that he struck and choked Emily. Furthermore, both the indictment and the instruction included language of attempt; thus, it was never necessary for the State to prove an actual injury. Finally, the fact that the instruction did not require a finding of serious bodily injury did not prejudice Goldman’s case. Throughout the trial, his defense was that he did not cause or attempt to cause any . injury to Emily, whether serious or not.

¶ 14. The amendment to the indictment caused by the jury instruction did not materially alter Goldman’s defense or prejudice his case. His defense of consent was equally availablé after the jury was instructed. Therefore, this issue has no merit.

2. Whether the circuit court erred by refusing to allow the defendant to cross-examine the victim about her past sexual relationship with the defendant.

¶ 15. Goldman argues that he should have been allowed to cross-examine Emily about her past sexual relationship with him. Because his defense was that the intercourse was consensual, Goldman claims that he should have been able to produce evidence from other witnesses to prove that he previously had sex with Emily. The State responds that the evidence was properly excluded by the circuit court.

¶ 16. We review the exclusion of evidence under an abuse of discretion standard of review. Wade v. State, 583 So.2d 965, 967 (Miss.1991). Absent an abuse of discretion, the circuit court’s decision will not be disturbed on appeal. Porter v. State, 869 So.2d 414, 417(¶ 8) (Miss.Ct.App. 2004) (citing McCoy v. State, 820 So.2d 25, 31 (¶ 15) (Miss.Ct.App.2002)).

¶ 17. On the second day of trial, the State filed a motion to exclude evidence of the prior sexual behavior of the victim. The circuit judge granted the motion finding that: (1) Goldman did not follow the notice requirements of Mississippi Rule of Evidence 412(c); (2) the evidence was not relevant; and (3) even if relevant, the probative value of such evidence was substantially outweighed by the unfair prejudice. The circuit judge stated that evidence of prior sexual intercourse between Goldman and Emily would have been prejudicial and confusing to the jury by implying that “prior consent meant that this situation would have been consensual.”

¶ 18. We find no abuse of discretion on the part of the circuit judge. First, it is clear from the record before us that Goldman did not file written notice that he intended to offer evidence of the victim’s past sexual behavior within fifteen days before trial. Thus, the evidence was properly excluded because of Goldman’s failure to comply with Mississippi Rule of Evidence 412(c)(1). Second, it was proper to exclude the evidence because the circuit judge determined it was irrelevant and prejudicial. As we have held before regarding the defense of consent, “[a]ll that was relevant regarding sexual relations at this trial was whether the victim consented to the shocking abuses visited upon him on [the day in question].” Fuqua v. State, 938 So.2d 277, 283(¶18) (Miss.Ct.App.2006).

¶ 19. There was evidence, in the form of Emily’s testimony and the 9-1-1 tape, to show that there was no consent on the day in question. Evidence of a prior sexual relationship was not relevant as to whether Emily consented that day, especially considering that the evidence showed Goldman broke into Emily’s house during the night and entered her bedroom with a large knife in his hand. As there was no abuse of discretion regarding the exclusion of this evidence, this issue has no merit.

3. Whether the victim’s medical records were properly admitted into evidence.

¶ 20. Goldman contends that the circuit court erred by allowing the State to introduce Emily’s medical records into evidence. At trial, the State called University Medical Center nurse Cheryl Flynt who read Emily’s account of the incident contained in Emily’s medical records. The records were then entered into evidence under Mississippi Rule of Evidence 803(4) as a statement for the purposes of medical diagnosis or treatment. Goldman argues that the statement was introduced for the sole purpose of giving the jury a prior consistent statement of the victim and should not have been admitted as substantive evidence. The State responds that Goldman waived this issue because he did not object to the medical records on the grounds that he now argues, and the issue was not raised in his motion for new trial.

¶ 21. “An objection must be made with specificity, and failure to articulate the grounds for objection constitutes a waiver of the alleged error.” Ross v. State, 954 So.2d 968, 987(1127) (Miss.2007). “Furthermore, when a party makes an objection on specific grounds, it is considered a waiver regarding all other grounds.” Copeland v. Copeland, 904 So.2d 1066, 1073(¶ 24) (Miss.2004) (citing Burns. v. State, 729 So.2d 203, 219(¶ 67) (Miss.1998)).

¶ 22. After the State asked that the medical records be entered into evidence, Goldman made the following objection:

[Attorney for the State]: Your Honor, at this time, we would ask for that narrative to be entered into evidence.
The Court: Any objection?
[Attorney for Goldman]: Your Honor, I would just object because she has not been qualified as SANE [Sexual Assault Nurse Examiner] expert or nurse in this matter.

¶23. Clearly, Goldman made no objection that the medical records were a prior consistent statement of the victim. “The rule requiring specific objections is necessary because to permit litigants to hold back objections until on appeal would mean that costly new trials would be had where valid objections could have been sustained during the trial.” Stringer v. State, 279 So.2d 156,158 (Miss.1973) (quoting Boring v. State, 253 So.2d 251, 253 (Miss.1971)). Here, Goldman made a specific objection at trial, and his objection was wholly unrelated to his argument on appeal. Therefore, this issue has been waived.

¶ 24. Despite the procedural waiver, we find that any error in the admission of the nurse’s statement was harmless error. The supreme court has held that:

The basic test for harmless error in the federal constitutional realm ... is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained .... [T]he inquiry is not whether the jury considered the improper evidence or law at all, but rather, whether that error was unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.

Thomas v. State, 711 So.2d 867, 872-73(1125) (Miss.1998) (internal citations and quotations omitted). The circuit judge allowed the medical records to be entered under Mississippi Rule of Evidence 803(4) which excludes from the hearsay rule statements made for purposes of medical diagnosis or treatment. The rule allows statements describing “the inception or general character of the cause or external source” of a victim’s present symptoms. M.R.E. 803(4). The portions of the statement describing the penetration and the knife scratches on Emily’s body qualify as statements made for the purposes of medical treatment. The remainder of the statement containing Emily’s account of what happened that night should not have been admitted under M.R.E. 803(4); however, we find that this error was harmless when compared to all of the other evidence considered by the jury.

¶ 25. In the statement read into evidence by the nurse, Emily describes what time she went to bed, the phone calls from a male asking whether her mother and brother were at home, and the shadow she saw moving through the house. She told the nurse that she called 9-1-1 and had the phone next to her and that she saw a black male walking toward her bedroom with a knife. She said that she recognized the man to be Goldman. He held the knife to her throat, pushed her onto the bed, and pulled off her shorts and underwear as well as his pants. He tried to have her perform oral sex, but she refused. She was screaming the entire time and was still on the line with the 9-1-1 operator. The police kicked in the door and apprehended Goldman.

¶ 26. The admission of the statement was harmless when compared to the overwhelming evidence of guilt contained elsewhere in the record. Goldman never disputed that he broke into Emily’s home while carrying a knife or that he had intercourse with Emily. His defense was that the intercourse was consensual. Emily testified at trial as to all the facts contained in the nurse’s statement. The jury also listened to the 9-1-1 recording. They heard Emily repeatedly scream “please don’t stab me” as Goldman entered her bedroom and heard the struggle that ensued between Goldman and Emily. Further, one of the police officers testified that Emily was shaking and crying when they entered the bedroom. Even without the nurse’s statement, there is overwhelming evidence that the intercourse was not consensual in the form of Emily’s testimony, the 9-1-1 recording, and the cuts and scratches on Emily’s body from Goldman’s knife. Thus, the admission of the statement was harmless error and does not require reversal of Goldman’s conviction. Accordingly, this issue is without merit.

Jp. Whether the circuit court erred by meeting with the jury prior to sentencing.

¶ 27. Goldman argues that he was prejudiced when the circuit judge visited with the jury after the verdict was returned, but before sentencing. Specifically, he says that the circuit judge’s visit with the jury, outside the presence of the defendant, had the danger of exposing the circuit judge to information or sentiments that the defendant could not rebut. The State responds that this issue is procedurally barred because Goldman made no objection and did not address the issue in his motion for a new trial. Further, the State claims Goldman fails to show how he was prejudiced by this occurrence.

¶ 28. After the jury returned its guilty verdicts on all counts and was individually polled, the circuit judge announced the following:

The Court: We’re going to stand in recess for a minute. Defendant remain in custody. After I visit with the jury, I’m going to come back and impose sentence.

After the court was in recess, the circuit judge returned, heai'd argument from the attorneys, and pronounced Goldman’s sentence.

¶ 29. There is nothing in the record that indicates what the “visit” with the jury entailed. Goldman claims the meeting undermined the fairness of his sentencing proceeding. Goldman cites Edwards v. State, 615 So.2d 590, 598 (Miss.1993) for the proposition that he has the right to review information used in determining his sentence. He claims that he was, therefore, entitled to know what was said during the circuit judge’s meeting with the jury, so he could respond accordingly.

¶ 30. As the State contends, this issue is also procedurally barred. The record shows that Goldman did not contemporaneously object to the circuit judge’s comment that he would be visiting with the jury. “It is axiomatic that a litigant is required to make a timely objection.... [I]f no contemporaneous objection is made, the error, if any, is waived.” Smith v. State, 797 So.2d 854, 856(¶ 7) (Miss.2001). Neither was this issue raised in the hearing on Goldman’s motion for a new trial. On appeal, we will not decide issues “which were not presented to the trial court and that court given an opportunity to rule on them.” Stringer, 279 So.2d at 158 (citations omitted). Had the issue been raised before the circuit judge, we might have some basis to determine whether the meeting with the jury was in error; however, by waiting until this appeal, Goldman has waived the opportunity to claim such error, if any.

¶ 31. Furthermore, Goldman has not shown how the fairness of his sentencing was affected in any way or how he was prejudiced by the meeting. There is nothing in the record that indicates the circuit judge discussed the merits of the case with the jury. In fact, the record indicates exactly the opposite as the circuit judge stated the following during the sentencing phase: “And again, I don’t know what the jury’s thoughts were in that process or whether they picked up on that.” Goldman alleges no specific example of prejudice, and he has not shown that the circuit judge had any information from the jury other than the verdict announced at the conclusion of the trial. Accordingly, this issue is without merit.

5. Whether Goldman received ineffective assistance of counsel at trial.

¶ 32. Goldman further argues that his trial counsel rendered ineffective assistance. To support this claim, Goldman asserts that trial counsel failed to: (1) object to the constructive amendment of the indictment and (2) give proper notice as to allow Goldman to put on evidence of a prior sexual relationship with Emily. The State argues that Goldman has not met the necessary requirements for proving that his counsel was ineffective.

¶ 33. To prove ineffective assistance of counsel, a defendant must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with the defendant to establish both prongs. McQuarier v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

1134. Goldman establishes that his trial counsel did not object on the grounds of a constructive amendment to the indictment and also that counsel did not meet the notice requirements of Rule 412(c) of the Mississippi Rules of Evidence necessary to introduce evidence of the victim’s prior sexual relationship with the defendant. Even if we assume that this rises to the level of deficient representation under the first prong of Strickland, Goldman fails to meet the second prong of Strickland because he has not shown that the jury’s verdict would have been different, but for these errors. In fact, we found both of these assignments of error to be without merit regardless of the procedural bar imposed because of trial counsel’s allegedly deficient representation. Goldman has failed to meet the Strickland test to prove ineffective assistance of counsel; therefore, this argument is without merit.

6. Whether the cumulative errors taken together require that a neiv trial be granted.

¶ 35. Lastly, Goldman argues that even if no single error requires reversal of his case, this Court should nonetheless consider granting a new trial based on the cumulative effect of all the errors. However, we have found all of Goldman’s assignments of error to be without merit. “As there was no reversible error in any part, so there is no reversible error to the whole.” McFee v. State, 511 So.2d 130, 136 (Miss.1987). Accordingly, this issue is also without merit.

¶ 36. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF COUNT I, BURGLARY OF A DWELLING, AND SENTENCE OF TWENTY-FIVE YEARS; COUNT II, SEXUAL BATTERY, AND SENTENCE OF THIRTY YEARS TO RUN CONCURRENTLY TO THE SENTENCE IN COUNT I; AND COUNT III, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS TO RUN CONSECUTIVELY TO THE SENTENCES IN COUNTS I AND II, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The name of the victim has been changed to "Emily” in this opinion to protect her identity-


author: BARNES, J.,

text:
    Leon Lamar TROTTER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-KA-00379-COA.
    Court of Appeals of Mississippi.
    Sept. 23, 2008.
    Rehearing Denied May 19, 2009.

      Lisa M. Ross, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. Leon Lamar Trotter was tried and convicted in the Circuit Court of Hum-phreys County for the murder of Ricky Hill. Trotter received a sentence of life in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, Trotter appeals, raising several issues. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. In the early evening of June 12, 2003, Truron Grayson, an off-duty officer with the Belzoni Police Department, was playing basketball near Hill’s house in Silver City, Mississippi. Someone approached and advised Officer Grayson that Hill was lying in the doorway to his home; so Officer Grayson went to investigate. Officer Grayson testified that he did in fact find Hill lying in his doorway. Hill told Officer Grayson, “Man, I need some help. I’m cold.” Officer Grayson testified that Hill was falling in and out of consciousness. When Officer Grayson asked Hill what happened, Hill said he had been shot and could not move. When asked who did it, Hill responded, “Pooh Man ... the guy who lives down the street ... drives the blue Cadillac, lives in that trailer.” Officer Grayson knew Trotter was known in the community as “Pooh Man” and fit this description. At this time, Officer Grayson also noted an entry wound in the upper part of Hill’s chest. Later, it was determined that Hill had been lying in his doorway with the gunshot wound for approximately seventeen hours. As a result of the injury, Hill died in the hospital thirteen days later.

¶ 3. At the scene, Officer Grayson and Chief Deputy J.D. Roseman decided to locate Trotter. As they approached the trailer where Trotter lived, they noticed a Cadillac traveling further down the road. Michael Trotter, Leon’s cousin, was driving the vehicle, and Alvin Pittman was the passenger. After stopping the Cadillac, officers recovered a .380 handgun from under the driver’s seat. Pittman was taken into custody. Officers Grayson and Roseman then spotted Trotter in another vehicle in the vicinity and took him into custody.

¶ 4. At the sheriffs department, Trotter was advised of and waived his Miranda rights. Not long after he was taken into custody, Trotter voluntarily made two handwritten statements that evening. In the first statement, Trotter briefly recounted that at approximately midnight, he and Pittman went to Hill’s house and knocked on the door. When Hill asked who was there, Trotter responded “Cliff.” Hill then opened the door, and Pittman shot him. Trotter’s second statement, which was made approximately an hour later, did not contradict his earlier statement, but contained more details. Trotter stated that he and Pittman decided to go to Hill’s home to collect a thirty-five-dollar debt for some marijuana which Trotter had sold Hill “on credit.” They parked the car at a nearby church and walked to Hill’s home. After Pittman shot Hill, Pittman started running; so Trotter followed. They drove back to Trotter’s house and ate. When Trotter told Pittman that Hill might die, Pittman acknowledged, “I shot him in the heart.” Trotter then claimed Pittman said the only reason he shot Hill just once was because his gun jammed up. Trotter stated that the two men then went to sleep.

¶ 5. A Humphreys County grand jury returned a two-count indictment against Trotter and Pittman for deliberate-design murder and the manufacture of marijuana. Pittman filed a motion for severance, which was granted. Ultimately, Pittman entered a guilty plea to manslaughter and was sentenced to twenty years in the custody of the MDOC.

¶ 6. At Trotter’s trial, several witnesses testified for the State. Officer Grayson’s testimony regarding Hill’s dying declaration was entered into evidence, as were the three statements Trotter gave to law enforcement. Forensic pathologist Dr. Stephen Hayne testified that the cause of Hill’s death was a gunshot wound to the chest which penetrated the left lung, and the manner of death was homicide. Additional testimony was taken regarding the murder weapon. Trotter’s former girlfriend, Latoya Cooks, testified that she had originally bought the .380 handgun at a pawnshop. She was going to sell it to Trotter’s aunt days before the murder, but she gave it to Trotter instead. She testified that she never saw the handgun again. Later, it was found to be the same handgun recovered from Trotter’s Cadillac. A forensic firearms expert testified that after completing a microscopic-comparison examination between a test bullet fired from the handgun found in Trotter’s Cadillac and the bullet retrieved from Hill’s body, he was of the opinion the bullets were fired from the same weapon.

¶ 7. Trotter was the only witness to testify in his defense. He maintained his statements to law enforcement were voluntary and “the truth.” Trotter admitted he drove his Cadillac on June 12 and took Pittman to Hill’s house at Pittman’s urging to get the money for the marijuana. Trotter maintained he did not “have anything against” Hill and did not know Pittman intended to shoot Hill that evening. As for Trotter’s use of the name “Cliff’ to get Hill to open the door, Trotter explained he was just joking with Hill and was not trying to conceal his identity, as the prosecution suggested. Trotter confirmed that the handgun used in the slaying belonged to him, that he had received it from his former girlfriend, Cooks, and that he kept it under the seat of his Cadillac. However, Trotter did not know Pittman had the handgun in his vehicle the evening of the murder. Finally, Trotter insisted he did not shoot Hill.

¶8. After the defense rested, the jury received numerous instructions on the law, including instructions for the crimes of aiding and abetting, murder, and manslaughter. The jury found Trotter guilty of murder as charged, and he was sentenced to life imprisonment. After trial, Trotter filed a motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which was denied. Trotter now appeals, raising several issues, which we shall discuss in turn.

ANALYSIS OF THE ISSUES

1. Whether the circuit court erred in admitting into evidence the victim’s statement as a dying declaration.

¶ 9. After the jury was empaneled, the defense moved ore tenus to ex-elude the hearsay testimony of Officer Grayson regarding Hill’s statements upon finding him shot in his doorway. Hill told Officer Grayson that “Pooh Man” shot him — “the guy who lives down the street ... drives the blue Cadillac, lives in that trailer.” The circuit court judge heard Officer Grayson’s proffered testimony and admitted it into evidence as a dying declaration exception to hearsay under Mississippi Rule of Evidence 804(b)(2). A dying declaration is made “by a declarant while believing that his death [is] imminent, concerning the cause or circumstances of what he believe[s] to be his impending death.” M.R.E. 804(b)(2). In order to determine whether a statement qualifies as a dying declaration, the Mississippi Supreme Court articulated the following three-prong test in Watts v. State, 492 So.2d 1281 (Miss.1986): “1. The wounded person is in extremis and dies after making the statement, 2. The person realizes that he is mortally wounded, and 3. He has no hope of recovery.” Id. at 1287 (citing Fuson v. State, 413 So.2d 734, 737 (Miss.1982); Clark v. State, 398 So.2d 229, 230 (Miss.1981)). This Court’s standard of review regarding the admissibility of testimonial evidence is an abuse of discretion. Harris v. State, 861 So.2d 1003, 1018(¶ 41) (Miss.2003). We leave such admissions to the sound discretion of the trial judge, and any error warrants reversal only when the abuse of discretion prejudices the accused. Id.

¶ 10. Trotter argues that no. evidence was introduced which proved Hill knew he was mortally wounded and had no hope of recovery; instead, testimony indicates Hill merely asked Officer Grayson for assistance. Trotter points to the fact that Hill never specifically said he was dying, and nobody else but Officer Grayson heard Hill’s comments. Trotter thus concludes that Hill’s statements should not have been admitted as a dying-declaration exception to the hearsay rule. We disagree.

¶ 11. The evidence in the record indicates Hill could have known of his impending death and that he had no hope of recovery even if not specifically expressed by him. The Watts court explained that the “knowledge of impending death may be inferred from the nature and extent of the wound inflicted upon the victim” without any expressed declaration of the victim to show “he was sensible of impending death.” Watts, 492 So.2d at 1287-88 (quoting Clark, 398 So.2cl at 230-31). When Officer Grayson found Hill lying in his doorway, Hill said to him: “Man, I need some help. I’m cold.” It could be inferred from the situation that Hill knew he had been shot and lying in his doorway, unable to rise, for a long period of time. Officer Grayson testified that Hill was going in and out of consciousness while speaking with him, and Hill specifically told him he could not move. In Officer Grayson’s proffered testimony, when he asked Hill where he had been shot, Hill moved his arm so Officer Grayson could then see the bullet wound in Hill’s upper left chest, near his heart. Hill never recovered from his injury and died thirteen days later. We find Hill’s consciousness of his own death can be reasonably inferred from the above facts; thus, his statement to Officer Grayson could be considered a dying declaration. Accordingly, we find that the circuit court did not err in admitting Officer Grayson’s testimony regarding the victim’s statement.

2. Whether the circuit court erred in failing to declare a mistrial due to the prosecutor’s remarks during voir dire.

¶ 12. During voir dire, the following remarks were made to prospective jurors by the prosecutor and defense counsel:

Q. The charge in this case is murder. It’s not capital murder, and I just want to clear that up. There is a distinction. If someone were charged with the crime of capital murder, then a jury would have to determine not only guilt or innocence, but what sentence would be imposed. All right? Because the death penalty is a possibility in a capital murder trial. This is not a capital murder trial. The death penalty is not a possible sentence in this case. Murder is limited to a term of imprisonment....

Defense counsel: Your Honor.... I don’t think this is proper voir dire examination on what the penalties would be. The jury will be instructed as to what them job is. The Court will give them the law on what their job is.

And to give them any information about possible sentences as to any crime that may be charged I think would be improper at any stage of the trial, certainly at this early stage.

The Court: Objection overruled.

Q. [T]he purpose of this question is [to] make sure that everybody understands, first, what your job will be in this case, solely the determination of guilty or innocence, and that the sentence is up to the Court.... [T]he reason I ask this is because people have all kind of views about capital cases. I want to make sure that everybody understands that you’re not going to be asked to impose the death sentence, or any sentence for that matter. Does everybody understand that?

¶ 13. Trotter contends that the prosecutor’s remarks about sentencing so prejudiced him that he was denied the right to a fair trial, as the remarks focused the jury’s attention for the remainder of Trotter’s trial on sentencing, not the evidence of his guilt or innocence. The State argues that this issue is waived, as Trotter’s trial counsel did not request a new trial at the time of his objection and did not mention this issue in the motion for a JNOV or a new trial.

¶ 14. According to the record, while Trotter’s trial counsel did make a general objection to the prosecutor’s statements during voir dire, the State is correct in noting Trotter did not specifically request a new trial, nor did he request the judge to tell the jury to disregard the statements. Had the prosecutor’s comments been so prejudicial to Trotter to deny him a fair trial, we would not disregard them because a constitutional right is at issue. However, we find no such prejudice.

¶ 15. Trotter cites Marks v. State, 532 So.2d 976 (Miss.1988) in support of his argument of prosecutorial misconduct that results in an unfair trial. In Marks, the Mississippi Supreme Court stated, “[w]e have consistently disapproved of arguments which refer to the potential sentence in a given case .... [t]he problem with arguments such as these is that they invite the jury to convict with regard to the punishment, not with regard to the evidence before them, and the jury should have no concern with the quantum of punishment to be imposed.” Id. at 983. The Mississippi Supreme Court continued that “condemnation of such arguments by prosecutors is our easiest task. The more formidable task is in deciding whether this improper argument rises to the level of reversible error.” Id. In the instant case, we find that the prosecution was merely advising the potential jurors that they would not be called upon to decide a death-penalty case. Any time jurors learn they will be hearing a case that involves “murder,” they could have legitimate concerns about the possible imposition of the death penalty. In fact, we note that if Trotter’s case had been a death-penalty case, trial counsel would be exploring the jury’s ethical concerns extensively. We acknowledge that advising the jury whether or not a case involves the death penalty is more properly for the trial judge than for trial counsel. However, to the extent there may have been a violation of the supreme court’s holding in Marks, regarding the prosecutor’s remarks during voir dire, we find no prejudice to Trotter. The prosecutor made no effort to advise the jury as to the different sentences or number of years under each sentence for the crimes of murder or manslaughter — the two crimes the jury would be considering. This situation is distinguishable from Marks, where the prosecutor’s objectionable comments during closing argument compared the sentences of murder and manslaughter. In Marks, the prosecutor stated, “[a] manslaughter conviction will not penalize this defendant enough.... [H]e will get off. A murder conviction will punish him sufficiently. ...” Id. Accordingly, we find the trial court did not err in failing to declare a mistrial during voir dire.

3. Whether the circuit court committed reversible error when it admitted Trotter’s two statements, regarding his involvement in the crime, into evidence.

¶ 16. On June 12, 2003, after Trotter was taken into custody, he was informed of and waived his Miranda rights. He gave two statements within an hour’s time regarding his involvement in the murder — the second containing more details than the first, and both were read to the jury at trial and admitted into evidence without objection. Trotter now argues that the circuit court committed reversible error in admitting his two statements, primarily because of the fact he was only seventeen years old at the time law enforcement questioned him on June 12. Trotter also claims his statements to law enforcement violate the Mississippi Youth Court Act because he was not informed that his mother had a right to be present. See Miss.Code Ann. § 43-21-303(3) (Rev. 2004). Further, Trotter argues his statements should have been suppressed because at the time he gave them, he had not been charged with a crime, nor had he been told he was even a suspect in a crime.

¶ 17. The standard of review for Miranda waivers is as follows:

The prosecution has the burden of proving beyond a reasonable doubt that the confession was voluntary. Morgan v. State, 681 So.2d 82, 86 (Miss.1996). This burden is met and a prima facie case established by the testimony of an officer, or other persons having knowledge of the facts, that the confession was voluntarily made without threats, coercion, or offers of reward. Dancer v. State, 721 So.2d 583, 587 (Miss.1998) (holding the confession of a thirteen-year-old voluntary). Whether there was an intelligent, knowing and voluntary waiver is a factual question to be determined by a trial court from the totality of the circumstances. McGowan v. State, 706 So.2d 231, 235 (Miss.1997). “This totality of the circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved .... ” Dancer, 721 So.2d at 587 (quoting Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)).

Martin v. State, 854 So.2d 1004, 1006-07(¶ 4) (Miss.2003). The Fare court goes on to state that “[t]he totality approach permits — indeed, it mandates — inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile’s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him.... ” Fare, 442 U.S. at 725, 99 S.Ct. 2560.

¶ 18. As Trotter did not contemporaneously object to the admission of these statements into evidence at trial, he is proeedurally barred from any allegation of error on appeal. See Washington v. State, 957 So.2d 426, 429(¶13) (Miss.Ct.App.2007) (holding failure to make a con temporaneous objection serves as waiver of any alleged error). “It is axiomatic that a litigant is required to make a timely objection.” Smith v. State, 797 So.2d 854, 856(¶ 7) (Miss.2001). Notwithstanding the procedural bar, after examining the record, we find the prosecution met its burden of proving beyond a reasonable doubt that Trotter’s confession was properly obtained. Officers Grayson and David Pitch-ford, who were present on June 12 when Trotter was brought into the sheriffs department after his arrest, and when he gave his two statements recounting the circumstances of Hill’s murder, testified for the State that Trotter’s waiver was intelligent, knowing, and voluntary. Both officers stated Trotter was given, read, and signed a Miranda waiver of rights form, which was introduced into evidence. Additionally, the voluntary statement form on which Trotter’s handwritten statements appear also had a Miranda waiver printed on it. Further, Trotter never claimed his statements were coerced, threatened, or forced. Even at trial, Trotter maintained that his handwritten statements were “the truth” and were voluntarily given, obviously in the hope that he would not be convicted of murder because he claimed he was not the gunman. Regarding other Fare factors such as age, education, and intellect, Trotter was seventeen years old at the time of the waiver. Nothing in the record indicates he was below average in maturity for his age. Further, age is just one factor in the totality of the circumstances test and is not conclusive of an improper waiver of rights. See Woodham v. State, 779 So.2d 158, 161-62 (¶¶ 13, 17) (Miss.2001) (sixteen-year-old’s confession considered voluntary); Moody v. State, 838 So.2d 324, 333(¶ 32) (Miss.Ct.App.2002) (court deemed confession by fourteen-year-old voluntary). Trotter had just graduated from high school at the time of the incident and had planned to attend a community college, indicating he had the education to understand what he read and signed. Further, according to the record, Trotter’s own testimony at trial was articulate, showing his intellectual capacity to understand the waiver. Under the totality of the circumstances and the Fare standard of review for a minor’s waiver, the record shows there was substantial evidence Trotter understood his Miranda rights and the consequences of waiving those rights. We agree with the circuit court that his waiver was intelligent, knowing, and voluntary.

¶ 19. Regarding Trotter’s argument that he did not know he was a suspect, the record indicates he waived his rights and made the statements after he had been arrested by Officer Pitchford and had been taken into custody for questioning. We fail to see how Trotter could not have known he was a suspect, especially since he admitted he was at least present during the murder, with the only other eyewitness being Pittman.

¶ 20. Finally, Trotter claims that his statements should have been suppressed as they were obtained without the presence of a parent, in violation of the Mississippi Youth Court Act. While Trotter is correct that he had not been charged with a crime at the time of his questioning on June 12, our Court has held that once a minor becomes a suspect of a crime that carries a potential life sentence or death, such as murder, and it becomes necessary to detain him, inform him of his Miranda rights, and interrogate him, the minor is removed from the protection of the Youth Court Act pursuant to Mississippi Code Annotated section 43—21—151(l)(a) (Rev. 2004), and the circuit court has original jurisdiction. Moody, 838 So.2d at 334(¶ 34). Once Trotter had been arrested and brought to the sheriffs department, he was considered a suspect for Hill’s murder. We find this argument without merit.

¶ 21. Accordingly, we find the circuit court did not err in admitting Trotter’s two statements regarding his involvement in the murder.

4. Whether Trotter’s trial counsel was ineffective.

¶ 22. Trotter asserts that he received ineffective assistance of counsel because: (1) Trotter was not arraigned, (2) there was inadequate investigation and preparation of the case for trial, (3) there was inadequate interviewing and usage of crucial witnesses at trial (including co-defendant Pittman), (4) defense counsel failed to object to the admission of Trotter’s statements to law enforcement, and (5) defense counsel failed to request a forensic expert to counter Dr. Hayne’s testimony. Trotter did not raise this issue before the trial court; he raises it for the first time on appeal.

¶ 23. Because there is usually insufficient evidence in the trial record and related matters to evaluate the claim, this Court has stated “[w]hen a party raises an ineffective assistance of counsel claim on direct appeal, the proper resolution is to deny relief without prejudice to the defendant’s right to assert the same claim in a post-conviction relief proceeding.” Graves v. State, 914 So.2d 788, 798(¶ 35) (Miss.Ct. App.2005). This Court will reach the merits of an ineffective assistance claim only in instances where “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Witcher v. State, 863 So.2d 776, 825 (¶ 171) (Miss.2003) (citations omitted). Trotter claims that his trial counsel’s performance violated his Sixth Amendment right to counsel. However, we find no affirmative showing of ineffective assistance rising to constitutional dimensions within the record, and we find no related stipulation between the parties. Accordingly, we decline to address this issue, and dismiss it without prejudice. Trotter may raise this claim in post-conviction-relief proceedings.

5. Whether cumulative errors denied Trotter a right to a fair trial.

¶24. Trotter contends that due to the numerous alleged legal errors he suffered at trial, he was denied the right to a fair trial. It is well established that this Court has the discretion to determine in a case where individual errors, which are not reversible in themselves, when considered cumulatively may warrant reversal based upon cumulative prejudicial effect. Byrom v. State, 863 So.2d 836, 847(¶ 13) (Miss. 2003). The issue becomes “whether the cumulative effect of all errors committed during the trial deprived the defendant of a fundamentally fair and impartial trial.” Gibson v. State, 731 So.2d 1087, 1098(¶ 31) (Miss.1998). After examining the record, we find no errors that so prejudiced Trotter as to have denied him a fundamentally fair trial.

6. Whether Trotter’s sentence constitutes cruel and unusual punishment.

¶ 25. After the jury found Trotter guilty of murder, the circuit court judge sentenced him to life imprisonment. Trotter notes that co-defendant Pittman was only sentenced to twenty years for a conviction of manslaughter, and based on the evidence presented at trial, the jury could not have definitively determined that Trotter was the gunman. Therefore, Trotter argues his sentence, in comparison to Pittman’s, violates the Eight Amendment’s prohibition against cruel and unusual punishment.

¶ 26. “It is well established that [the appellate court] will not disturb a sentence where it does not exceed the maximum period allowed by statute.” Ford v. State, 975 So.2d 859, 869(¶39) (Miss.2008) (citing Williams v. State, 794 So.2d 181, 188(¶ 30) (Miss.2001)). However, if a sentence is grossly disproportionate to the crime committed, it may be reviewed on Eighth Amendment grounds. Id.

¶ 27. In Trotter’s case, the jury was instructed on the crimes of murder and manslaughter. Additionally, the jury was instructed that if it found beyond a reasonable doubt that someone other than Trotter committed the murder, but Trotter “either directed or aid[ed] and abett[ed] that person” during the murder, it should find Trotter guilty of murder. Therefore the jury could have properly found Trotter guilty of murder without Trotter’s actually having fired the shot that killed Hill. Furthermore, Trotter’s sentence does not exceed the statutory maximum; the only available punishment for murder is life in prison pursuant to Mississippi Code Annotated section 97-3-21 (Rev.2006).

¶ 28. Trotter cites Davis v. State, 724 So.2d 342 (Miss.1998) to argue that his case should be remanded for resentencing. In Davis, the first-time offender was convicted of selling two rocks of crack cocaine and sentenced to the maximum term of thirty years, which was doubled because Davis sold the cocaine within 1,500 feet of a church. Id. at 343 (¶¶ 4-5). The court vacated Davis’s sentence because there was nothing in the record to justify the imposition of the maximum sentences. Id. at 344-45 (¶¶ 10-11). Trotter’s case is distinguishable. The sentence of life imprisonment is the only option the circuit court judge had once the jury convicted Trotter of murder; there is no matter of judicial discretion as in Davis.

¶ 29. For the foregoing reasons, we find Trotter’s sentence does not constitute cruel and unusual punishment.

CONCLUSION

¶ 30. Based on the foregoing, we conclude Trotter’s assignments of error are without merit. We therefore affirm his conviction of murder and sentence of life imprisonment.

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

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

      . Officer Grayson testified he knew Trotter "very well” as Trotter is his stepfather’s cousin.

      . Trotter also gave a third handwritten statement the next day, June 13, which was entered into evidence, regarding two guns he had received from his aunt. During trial, he admitted this third statement was voluntary as well.

      . Section 43—21—151 (l)(a.) of the Youth Court Act states the youth court shall have exclusive original jurisdiction in all proceedings concerning a child, which is defined as a person who has not reached his or her eighteenth birthday, except when the child attempts or commits an act which, if committed by an adult, would be punishable under state or federal law by life imprisonment or death; then the circuit court will have original jurisdiction.

      . This statute states a person convicted of murder shall be sentenced to imprisonment for life in the State Penitentiary. Miss.Code Ann. § 97-3-21.