author: MARION F. EDWARDS, Chief Judge.

text:
    STATE of Louisiana v. Lloyd A. MUNSON.
    No. 11-KA-54.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 15, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Brandon Kinnett, Vincent Paciera, Jr., Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and JUDE G. GRAVOIS.
   MARION F. EDWARDS, Chief Judge.

12Pefendant/appellant, Lloyd A. Munson (“Munson”), was charged with one count of second degree murder; one count of felon in possession of a firearm; and one count of obstruction of justice, violations of La. R.S. 14:30.1, La. R.S. 14:95.1, and La. R.S. 14:130.1, respectively. Munson pled not guilty at arraignment.

Just prior to trial, Munson filed a motion to add responsive verdict seeking to add an accessory after the fact responsive verdict to the obstruction of justice charge. The trial court denied the motion. After a three-day trial, a jury found Munson guilty as charged as to all three counts. Defense counsel filed a motion for post verdict judgment of acquittal and a motion for new trial, both of which were denied.

The trial court sentenced Munson to “life in prison” on the second degree murder offense. The trial court sentenced Munson to a term of imprisonment of ten years at hard labor without benefit of parole, probation, or suspension of sentence on the felon in possession of a firearm offense. The trial court sentenced him to a term of imprisonment of forty years at hard labor on the obstruction of justice offense and ordered that the sentences be served concurrently. Defense |scounsel made an oral motion to reconsider sentence, which the trial court denied. This appeal follows.

We have conducted an error patent review. For the reasons that follow, we vacate the sentences and remand the case to the district court for rulings on Mun-son’s pro se motions for post verdict judgment of acquittal and motion for new trial.

The record shows that, on April 6, 2010, Munson filed a pro se “Motion For Post Verdict Judgment of Acquittal,” that alleged ineffective assistance of counsel. Munson also included a claim that he was deprived of his constitutional right to confront his accusers in what appears to be an allegation of insufficient evidence. On April 19, 2010, prior to sentencing, defense counsel filed a motion for new trial, alleging the verdict was contrary to the law and the evidence. In addition, on that date, counsel filed a “Motion For Post Verdict Judgment Of Acquittal With Incorporated Memorandum Of Law,” alleging the only evidence of Munson’s guilt was his own uncorroborated confession, and citing Smith v. United States, 348 U.S. 147, 152, 75 S.Ct. 194, 197, 99 L.Ed. 192 (1954). Also, on April 19, Munson filed a pro se “Supplemental Motion For New Trial,” again alleging insufficiency but also urging trial error in the failure of the court to grant a mistrial.

At the hearing just prior to sentencing, the trial court denied both motions filed by defense counsel, finding that the State had proven its case. A copy of those counseled motions appear in the record as having been denied on April 19. However, nowhere in the record do we find a discussion or disposition of either of the pro se motions.

La.C.Cr.P. art. 821 provides that a defendant may move for a post verdict judgment of acquittal following the verdict, and that such motion must be made and disposed of prior to sentencing. La. C.Cr.P. art. 853 provides that a motion for |4a new trial must be filed and disposed of before sentencing. The trial court erred in failing to rule on Munson’s timely motions for post verdict judgment of acquittal and for new trial. Such error is noticeable on the face of the record and reviewable as a patent error.

In State v. Randolph, the Louisiana Supreme Court dealt with the trial court’s failure to rule on a defendant’s new trial motion by vacating his sentence and remanding the case to the trial court for a ruling. The high court reserved to the defendant his right to appeal his conviction and sentence in the event of an unfavorable ruling on the motion. When faced with the lack of a ruling on defense motions for new trial and post verdict judgment of acquittal, this Court has recently adhered to Randolph more strictly and without addressing the merits of a defendant’s assignments of error, vacated the sentence and remanded for rulings on the motions, reserving to the defendant his right to appeal his conviction and sentence in the event of unfavorable rulings.

Accordingly, in the present case we vacate the sentences and remand for rulings on the pro se Motion For Post Judgment Verdict Of Acquittal and Supplemental Motion For New Trial. With particular attention to Munson’s argument regarding challenges for cause, we reserve his right to appeal his convictions and sentences in the event of adverse rulings on the above motions.

SENTENCES VACATED; REMANDED WITH INSTRUCTIONS

      . See, State v. Pettus, 10-742 (La.App. 5 Cir. 5/24/11), 66 So.3d 1192; State v. Robinson, 06-464 (La.App. 5 Cir. 12/12/06), 947 So.2d 783.

      . State v. Pettus, supra, and the cases cited therein.

      . 409 So.2d 554 (La.1981) (per curiam) (on reh’g 2/5/82).

      . See, State v. Pettus, supra; State v. Robinson, supra.


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Danira HAWKINS.
    No. 2011-KA-0193.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Brad Scott, Assistant District Attorney, New Orleans, LA, for the State of Louisiana/Appellee.
    Justin Caine Harrell, H2 Law, LLC, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

BOn May 28, 2009, the defendant was indicted for aggravated rape. Subsequent to his indictment, the defendant entered a plea of not guilty. On July 22, 2010, following a two day bench trial, defendant was found guilty of the lesser included offense of sexual battery. The defendant was sentenced to serve twenty-five years at hard labor with credit for time served. This appeal followed.

The defendant’s indictment and conviction resulted from the molestation accusations of a six year-old female. At the time of the incident, the child lived in a home with her mother and younger sister. The defendant, whose nickname was Rocky, was a close friend of her mother’s and spent a substantial amount of time at the home occasionally staying overnight.

The mother testified that if the defendant was at her home when she went to work, the defendant would take the children to the baby-sitter or wherever they had to go. On the night of January 17, 2009, the mother returned home from work. The defendant was at the home with her children. She immediately noticed that something was wrong with her daughter. The daughter claimed she had a sore | ¡Jhroat. Noticing sores inside the child’s mouth the mother brought her to Children’s Hospital for treatment; the defendant stayed at the house. They returned from Children’s Hospital, and the defendant left shortly thereafter. The mother noticed that her daughter had an “attitude”, did not want to talk, and went into her bedroom to lie down.

The following day, the mother described the child’s behavior as distant. When she asked the child what was wrong, she responded, “mom, you going to get mad.” The mother assured her daughter that she would not be angry and that she should tell her what was wrong. She told her mother that Rocky “put his thing in her mouth ...” Shortly thereafter, the mother took her daughter to the hospital and the child told a physician what had happened. The mother testified that after the incident with Rocky, her daughter did not want to be alone or have any visitors at the house and she became “real jittery”.

Detective Darlene Stokes with the New Orleans Police Department’s child abuse unit was assigned to investigate the allegations of child molestation. Upon arriving at Children’s Hospital, Detective Stokes met with the mother and the child. The detective did not interview the child at that time. Later, a forensic examiner interviewed the child; the interview was audio and video recorded. Detective Stokes was not allowed inside the room with child and the examiner, but she was present in another room listening to the interview via an ear piece and microphone which allowed her input as to questions that the examiner should ask.

After questioning the child, the trial court found her competent to testify at trial. On the stand she maintained that Rocky was the person that molested her. She also testified that the defendant stayed in the home with her when her mother |swas not home. She stated that the defendant put his “thing” in her mouth while she lay on the couch in the front room of her home. Her younger sister was also in the home at the time.

At trial, the defendant denied that he molested the child or even stayed alone with her. The defendant denied speaking, meeting or interacting with the child at any time. He testified that he and, the mother met after Hurricane Katrina and were close friends but were not involved in a romantic relationship. He admitted that he stayed overnight at the mother’s home approximately twice per week for several years. He said he would watch T.V. and “chill” with Peanut and Kevin who also stayed overnight sometimes. He claimed that sometime in late November or early December 2008 he left the mother’s home after she accused him of stealing money and he never returned. He further testified that on the night of January 16, 2009 he was picked up from his brother’s house in New Orleans east by his friend, Dasha O’Connor, and they drove to her house in Chalmette where he remained the entire weekend. The defendant denied putting his penis in the young girl’s mouth, displaying his penis to her or touching her in an inappropriate way.

Dasha O’Connor testified that she and the defendant met in 2000 or 2001. She stated that on the night of January 16, 2009 she drove to the defendant’s brother’s house in New Orleans East, picked him up and returned to her home in Violet, Louisiana. The defendant remained at her home the entire weekend. On January 18, 2009, she drove defendant back to his brother’s home in New Orleans East. She admitted that she was not with the defendant prior to January 16, 2009.

James Hawkins, Jr., defendant’s brother, testified that defendant moved into his home around November 2008. He stated that the only time defendant did not Rspend the night at his house was when Dasha picked him up and drove him to her house.

ERRORS PATENT:

A review for errors patent reveals an error in defendant’s sentence for sexual battery. A person convicted of sexual battery shall be imprisoned at hard labor for not less than twenty-five years and not more than ninety-nine years with at least twenty-five years of the sentence served without benefit of parole, probation or suspension of sentence. La. R.S. 14:43.1(0(2).

In the instant case, the district court failed to deny defendant benefits on his twenty-five year sentence. Accordingly, defendant’s sentence is illegally lenient. Generally, in instances where the statutory restrictions were not recited at sentencing, they are contained in the sentence, whether or not imposed by the sentencing court. La. R.S. 15:301.1(A); State v. Hall, 2002-1098 (La.App. 4 Cir. 3/19/03), 843 So.2d 488. However, La. R.S. 15:301.1(A) and Hall do not apply in this instance because the sentence is “at least twenty-five years” which leaves some discretion for the trial court to determine how many of the twenty-five years should be served without benefits. Therefore, the case must be remanded for resentencing in -compliance with La. R.S. 14:43.1. This however, does not prevent us from determining the merits of the defendant’s appeal.

ASSIGNMENT OF ERROR NUMBER 1:

First, the defendant asserts that the evidence was insufficient to support his conviction. His primary argument is that there was no evidence that identified him as the perpetrator or any evidence that the alleged incident occurred. After hearing |5the testimony and viewing the exhibits, the trial court found the defendant guilty of the lesser included charge of sexual battery.

When reviewing the sufficiency of the evidence to support a conviction, this court is controlled by the standard set forth by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which dictates that to affirm a conviction “the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984). In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Robinson, 2002-1869, p. 16 (La.4/14/04), 874 So.2d 66, 79; State v. Jones, 97-2591, p. 7 (La.App. 4 Cir. 9/8/99), 744 So.2d 165, 169. Under the Jackson standard, the rational credibility determinations of the trier of fact are not to be second guessed by a reviewing court. State v. Juluke, 98-341 (La.1/8/99), 725 So.2d 1291, 1293. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the | f,conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).

When a defendant disputes identity, the State must negate any reasonable probability of misidentification. State v. Smith, 430 So.2d 31, 45 (La.1983). Furthermore, aliases, nicknames or descriptions of race, color or otherwise are not only permissible but constitute competent, relevant and fully admissible evidence. State v. Edwards, 97-1797 (La.7/2/99), 750 So.2d 893.

In the instant case, when the child was asked if she saw Rocky in court she answered in the negative. Even though the victim who was six at the time of the incident did not recognize Rocky in court, the totality of the evidence negates any reasonable probability of misidentification. The mother testified that the defendant went by the nickname Rocky and that he was alone with the child on the night that she accused him of placing his “thing” in her mouth. The defendant’s own testimony established that he stayed overnight in the mother’s home twice per week for several years. The testimony supports a finding that the child was very familiar with the defendant and knew that he went by the nickname of Rocky.

The child has never wavered on whether the incident occurred. She has consistently reported the events of that evening, to her mother, doctors and the court. Dr. Yameika Head, who performed a comprehensive physical examination and oral medical history of the child, testified that during the course of her examination, the child revealed that on more than one occasion the defendant had put his “thing” in her mouth and on her “thing” which made her feel embarrassed and “not happy”. From anatomical drawings, Dr. Head was able to discern that what the child meant by “thing” was male and female genitalia. Dr. Head further testified that what stood out to her during her examination was the child’s |7statement that after these incidents of molestation she had to “wipe herself with a tissue”. We find the evidence was sufficient to support the trial court’s finding that the defendant was guilty of sexual battery.

ASSIGNMENT OF ERROR NUMBER TWO:

Defendant asserts that the trial court erred in admitting the video/audio taped interview of the victim over the defense’s objection because the forensic investigator, Ahna Patterson, who conducted the interview, did not testify at trial; relator argues that the inability to cross-examine Ms. Patterson violated his due process confrontation rights. He argues that the testimony of Detective Stokes, the investigating detective, did not constitute a “supervisor” within the meaning of La. R.S. 15:440.5.

There are two relevant statutes to be considered in determining whether a video/audio taped interview of a victim can be offered into evidence, La. R.S. 15:440.4 and 15:440.5.

|sThe trial court relied on State v. Roberts, 42,417 (La.App. 2 Cir. 9/19/07), 966 So.2d 111, a case factually similar to the instant case, in determining that the video/audio taped interview should be allowed in as evidence. In Roberts, the defendant was convicted of molestation of a juvenile. The defense objected to the recorded interview of the minor victim being admitted into evidence because the interviewer was not available to be cross-examined; the defense argued that the investigating detective did not qualify as a “supervisor” as required by La. R.S. 15:440.5(A)(6). In allowing the introduction of the recorded interview, the Second Circuit dispensed with this assignment of error on procedural grounds. In dicta, the court held that an investigating officer can serve as a supervisor within the meaning of La. R.S. 15:440.5(A)(6). The court also noted that the Louisiana Supreme Court in State v. Kennedy, 2005-1981 (La.5/22/07), 957 So.2d 757, concluded that where the de-clarant is present to appear for cross-examination, the Confrontation Clause places no constraints at all on the use of the declarant’s prior testimonial statements. The defendant correctly states that the court in Roberts noted that while the holding in Kennedy does not address whether the absence of [ nthe interviewer’s testimony adversely affects the defendant’s confrontation rights, the holding illustrates that the core protection in the Sixth Amendment Confrontation Clause is the right to confront the accuser. The interviewer is not the accuser; the victim is the accuser.

Additionally, the defendant argues that the holding in Roberts is not binding on this court and that, because neither this court or the Supreme Court has addressed this issue, this court should ignore the holding in Roberts as wrong and not apply it to the facts of the instant case. The defendant fails to present any factual or legal reasons to support his argument that the Roberts court’s analysis is flawed. Given the plain language of La. R.S. 15:440.4(A)(5) and 15:440.5(A)(6), it is clear that the legislature by using the words “by a law enforcement officer” and “or supervising” intended to include Detective Stokes, the supervising law enforcement officer as the witness testifying as to whether the process of the recorded interview complied with the statutory requirements, thus allowing it to be admitted into evidence. The testimony and subsequent cross-examination of Detective Stokes at trial did not violate defendant’s confrontation rights. We find no error by the court in admitting the tape.

ASSIGNMENT OF ERROR NUMBER THREE:

In his third assignment of error, the defendant asserts that the trial court erred in admitting the video/audio taped statement of the victim where the victim could not provide any meaningful testimony and, thus, was “unavailable” to testify or be cross-examined. Specifically, defendant argues that A.C. did not remember the taped interview, the medical examination with Dr. Head or when she told her | inmother of defendant’s sexual abuse. As such, defendant argues that his constitutional right of confrontation was violated.

The United States Constitution provides that “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.... ” U.S.C.A. Const, amend. 6. The Louisiana Constitution similarly provides, “An accused is entitled to confront and cross-examine the witnesses against him.... ” La. Const. Art. 1 Section 16.

In support of his claim that he was denied his constitutional right to confront A.C., defendant cites State v. R.C., Jr., 494 So.2d 1350 (La.App. 2 Cir.1986), in which the five year old victim took the stand at trial and answered general questions on cross-examination, but refused to talk about the alleged sexual abuse, which the court found denied the defendant his constitutional right to confront his accuser. R.C. is distinguishable from the instant case.

In this case, the court found the child competent to testify. On direct examination she stated that she remembered the tape and that everything on the tape was the truth. While her testimony clearly demonstrates the challenge in eliciting testimony from a six year old victim, she nevertheless clearly expressed that it was the defendant that sexually abused her. She testified that the defendant was alone with her when her mother went to the store and that he sexually abused her on the front couch. She was adamant that neither Peanut nor Kevin inappropriately touched her and that the defendant did place his “thing in her mouth”. When asked on cross-examination if her mother told her that someone put their thing in her mouth, she answered “No”. When defense counsel asked her if Inshe remembered telling Dr. Head that she denied telling her mother that anyone put their thing in her mouth, she responded quickly and clearly, “I didn’t say no”. The record reflects that the juvenile victim was available and provided meaningful answers to defense counsel’s questions on cross-examination regarding the facts that gave rise to the offense of sexual battery. For these reasons, we find there was no violation of the defendant’s constitutional right to confront his accuser.

ASSIGNMENT OF ERROR NUMBER FOUR:

Defendant argues that the trial court erred by permitting rebuttal witnesses to testify following the state’s failure to comply with the notice of alibi disclosure requirements.

La.C.Cr. P. art. 727(A) provide that upon written demand of the district attorney stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days, or at such different time as the court may direct, upon the district attorney a written notice of his intention to offer a defense alibi. La.C.Cr. P. art. 727(A). Once the state receives the notice of alibi the state, within ten days, but in no event less than ten days before the defendant’s trial, unless the court otherwise directs, the district attorney shall serve upon the defendant or his attorney a written notice stating the names and addresses of the witnesses upon whom the state intends to rely to establish the defendant’s presence at the scene of the alleged offense and any other witnesses to be relied on to rebut the testimony of any of the defendant’s alibi witnesses. La.C.Cr. P. art. 727(B). Upon the failure of either party to comply with the requirements of article 727, the trial court may exclude the testimony of any undisclosed witness offered by such party as to the defendant’s absence from or presence at the scene of the alleged offense. La.C.Cr. P.art. 727(D).

|1PIn the instant case, defendant does not provide the names of the state’s undisclosed witnesses. According to the trial transcript, there were no rebuttal witnesses to the defendant’s alibi witnesses. There was no evidence presented by the defendant to show an abuse of discretion by the trial court as set forth by this assignment of error.

ASSIGNMENT OF ERROR NUMBER FIVE:

Lastly, the defendant asserts that the district court abused its discretion by denying his motion for court funds to hire an expert in the area of child witness testimony. Specifically, defendant requested funds to hire an expert in the fields of child psychology, cognitive psychology and/or child interrogation techniques, arguing that numerous studies in the field of child psychology has revealed that young children can be susceptible to poorly phrased, repetitive, accusatory or confusing questions with the potential for misidentification.

In the motion for appointment of an expert, the defendant merely states that he hired private counsel with the assistance of his family and that he and his family have exhausted their financial resources. No other documentation or evidence was produced to support defendant’s status as an indigent defendant. On January 15, 2010, the district court denied the motion; no written judgment was rendered and no transcript of an evidentiary hearing exists. The record does not indicate that the defendant objected to the denial, and he did not seek supervisory review of the denial. In general, expert fees may be provided to indigent defendants. The record falls short of establishing that this defendant was indigent. Thus, we cannot find an abuse of discretion for denying the motion to appoint an expert.

| iaIn conclusion, given the record before this Court, we affirm the defendant’s conviction, vacate the defendant’s sentence, and remand for resentencing in compliance with La. R.S. 14:43.1.

CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED

      . This condition was not found to be related to the molestation.

      . The crime of sexual battery is defined, in pertinent part, as follows:
      Sexual battery is the intentional engaging in any of the following acts with another person, who is not the spouse of the offender, where the offender acts without the consent of the victim, or where the other person has not yet attained fifteen years of age and is at least three years younger than the offender:
      (1) The touching of the anus or genitals of the victim by the offender using ... any part of the body of the offender; or
      (2) The touching of the anus or genitals of the offender by the victim using ... any part of the body of the victim.

      . La. R.S. 15:440.4 provides in pertinent part:
      A. A videotape of a protected person may be offered in evidence for or against a defendant. To render such a videotape competent evidence, it must be satisfactorily proved:
      (1) That such electronic recording was voluntarily made by the protected person.
      (2) That no relative of the protected person was present in the room where the recording was made.
      (3) That such recording was not made of answers to interrogatories calculated to lead the protected person to make any particular statement.
      (4) That the recording is accurate, has not been altered, and reflects what the protected person has said.
      (5) That the taking of the protected person's statement was supervised by a physician, a social worker, a law enforcement officer, a licensed psychologist, a licensed professional counselor, or an authorized representative of the Department of Social Services, (emphasis added).
      La. R.S. 15:440.5 provides in pertinent part:
      A. The videotape of an oral statement of the protected person made before the proceeding begins may be admissible into evidence if:
      (1) No attorney for either party was present when the statement was made;
      (2) The recording is both visual and oral and is recorded on film or videotape or by other electronic means;
      (3) The recording is accurate, has not been altered and reflects what the witness or victim said;
      (4) The statement was not made in response to questioning calculated to lead the protected person to make a particular statement;
      (5) Every voice on the recording is identified;
      (6) The person conducting or supervising the interview of the protected person in the recording is present at the proceeding and available to testify or be cross-examined by either party;
      (7) The defendant or the attorney for the defendant is afforded an opportunity to view the recording before it is offered into evidence; and
      (8) The protected person is available to testify, (emphasis added).

      . The court found that the basis for this objection was raised for the first time on appeal.

      . Statutory construction should be based on the plain language of the statute. See, Cleco Evangeline, LLC v. Louisiana Tax Commission, 2001-2162 (La.4/3/07), 813 So.2d 351.


author: RANDOLPH, Justice,

text:
    Diana KINSEY, On Behalf of the Wrongful Death Beneficiaries of Ted Watkins, Deceased v. PANGBORN CORPORATION; Ash Grove Cement Company; Precision Packaging, Inc.; Clark Sand Company, Inc.; Clemco Industries Corporation; Hanson Aggregates, Inc.; Humble Sand & Gravel, Inc.; Parmelee Industries, Inc.; Southern Silica of Louisiana, Inc.; Mine Safety Appliances Company (MSA); Empire Abrasive Equipment Corporation; Pearl Sands, Inc.; Pearl Specialty Sands, Inc.; Specialty Sand Company; Bob Schmidt, Inc.; Schmidt Manufacturing, Inc.; Lone Star Industries, Inc.; and American Optical Corporation.
    No. 2010-CA-00925-SCT.
    Supreme Court of Mississippi.
    Nov. 3, 2011.
    Rehearing Denied Feb. 9, 2012.

      John Timothy Givens, Jackson, Timothy W. Porter, Robert Allen Smith, Jr., Ridge-land, Patrick C. Malouf, attorneys for appellant.
    Jennifer Jones Skipper, Fred Krutz, III, Edwin S. Gault, Jr., Matthew Robert Dowd, Charles R. Wilbanks, Jr., Katharine McKee Surkin, Randi Peresich Mueller, George Martin Street, Jr., Walter T. Johnson, Joseph George Baladi, Robert B. Ireland, III, Wade G. Manor, Clyde Lavel Nichols, III, Jackson, W. Wright Hill, Jr., Ronald G. Peresich, W. Mark Edwards, Biloxi, Jeffrey Pierce Fultz, Hal Loring Roach, Jr., Houston, Kimberly Paige Man-gum, David A. Barfield, Madison, James Scott Rogers, attorneys for appellees.
    Before WALLER, C.J., RANDOLPH and CHANDLER, JJ.
   RANDOLPH, Justice,

for the Court:

¶ 1. The “Last Will and Testament” of Ted Watkins, dated December 6, 2000, named his ex-stepdaughter, Diana Kinsey, to serve as the executrix of his estate and “will[ed], devis[ed], ... and bequeath[ed] all of [his] property” to her. Following Watkins’s death in July 2003, Kinsey was formally appointed executrix of Watkins’s estate in October 2003. In May 2004, Watkins’s estate was closed and Kinsey was discharged as executrix. In April 2007, Kinsey filed a wrongful-death action against various silica-related entities in the Circuit Court of Harrison County, Mississippi, First Judicial District (“circuit court”). Upon the defendants’ motions, the circuit court ruled that this action was barred by applicable statutes of limitations or, alternatively, that Kinsey lacked standing to file the wrongful-death action. The circuit court dismissed all defendants with prejudice.

FACTS

¶ 2. On October 4, 2002, Watkins was diagnosed with silicosis. On December 26, 2002, a mass-tort, personal-injury suit against various silica-related entities, styled Rudolph Spencer, et al. v. Pulmosan Safety Equipment, et al, was filed in the Circuit Court of Humphreys County, Mississippi. The plaintiffs in that suit asserted claims of negligence, gross negligence, strict products liability, breach of warranties, and conspiracy against the defendants; alleged “silica-related injuries[;]” and sought recovery for “past, present, and future losses, not only actual, economic losses such as lost wages and/or wage-earning capacity and expenses of medical care, but also compensatory losses, such as loss of health, physical pain, emotional upset, mental anguish, disfigurement, disability, and loss of enjoyment of life-” Among the twenty-five listed plaintiffs was “Ted Walkins [sic], ... an adult resident citizen of Mississippi.” (Emphasis added.)

¶ 3. Watkins died on July 28, 2003. On October 29, 2003, an “Amended Complaint” was filed in Spencer in which “Ted Walkins [sic], ... an adult resident of Mississippi” remained among the listed plaintiffs. (Emphasis added.) No suggestion of death was made and no wrongful-death claims were asserted. Thereafter, Spencer was removed to the United States District Court for the Southern District of Texas, Corpus Christi Division, a silica multi-district litigation court (“federal court”).

¶ 4. On October 30, 2003, the Chancery Court of Forrest County, Mississippi (“chancery court”), entered an “Order Admitting Will to Probate and for Issuance of Letters Testamentary.” The Order appointed Kinsey as the executrix of Watkins’s estate, pursuant to Watkins’s “Last Will and Testament,” to perform the duties and obligations required by that position. Kinsey, as the executrix of Watkins’s es-fate, never moved to be substituted as a real party in interest in Spencer, On May 17, 2004, a “Judgment Approving First and Final Account, Closing Estate, Discharging Executrix and For Other Relief’ was entered by the chancery court. (Emphasis added.) The Judgment ordered that Kinsey, as “the sole devisee and legatee” of the estate, was “entitled to receive all property of whatever nature, whether presently in possession or to later accrue .... ” This included “any asbestos-related or other proceeds to be paid, currently or in the future, to or on behalf of’ Watkins, which were to be “free of any claim of creditors due to said proceeds’ exempt status....”

¶ 5. Subsequently, the federal court entered an Order remanding Spencer to the Circuit Court of Humphreys County due to lack of subject-matter jurisdiction. On January 30, 2006, the Circuit Court of Humphreys County entered an “Agreed Order of Dismissal Without Prejudice” in Spencer, which included the following defendants: Clemco Industries Corporation; Clark Sand Company, Inc.; Hanson Aggregates, Inc.; Humble Sand & Gravel, Inc.; Pangborn Corporation; Parmelee Industries, Inc.; Precision Packaging, Inc.; and Southern Silica of Louisiana, Inc. (collectively, “Forman Perry Defendants”). (Emphasis added.) On April 27, 2006, the Circuit Court of Humphreys County entered an “Agreed Order of Dismissal Without Prejudice” in Spencer as to all claims against “each and every” remaining defendant, pursuant to Canadian National v. Smith, 926 So.2d 839 (Miss.2006). (Emphasis added.)

¶ 6. On April 27, 2007, Kinsey first filed a wrongful-death action in the circuit court. The Complaint was styled Diana Kinsey, on behalf of the Wrongful Death Beneficiaries of Ted Watkins, Deceased v. Pangbom Corporation, et al. The Complaint alleged “COMES NOW, [Kinsey], on behalf of the wrongful death beneficiaries of Ted Watkins, deceased....” The Complaint alleged that the April 27, 2006, Order of the Circuit Court of Humphreys County was entered pursuant to Smith, and Kinsey argued that she was thereby granted “one (1) year ... to re-file [Watkins’s] cause of action in a proper venue according to new law in Mississippi,]” and “[t]his case is being filed within th[at] one (1) year time frame.... ”

¶ 7. Between August 2007 and November 2007, various defendants filed their Answers and Defenses. These pleadings contended, inter alia, that the claims asserted by Kinsey were barred by applicable statutes of limitations and that Kinsey lacked standing to commence a wrongful-death action.

¶ 8. On December 13, 2007, the circuit court entered an “Agreed Initial Discovery Order” which provided, in pertinent part, that Kinsey would have sixty days to respond to the defendants’ “Initial Master Set of Interrogatories and Requests for Production of Documents” (“Master Set”). On December 18, 2007, the defendants propounded the Master Set to Kinsey, with responses due February 18, 2008. After receiving no responses to the Master Set, defendant MSA sent a letter to counsel for Kinsey which provided that those responses were “extremely overdue” and requested that Kinsey “respond to this discovery immediately to avoid involvement by the [c]ourt.” Upon Kinsey’s failure to respond to that letter, MSA filed a “Motion to Compel.” Following hearing, the circuit court entered an “Order Compelling Discovery Responses.” Kinsey’s subsequent responses pertinently revealed that she was Watkins’s step-daughter and that Kinsey failed to list any wrongful-death beneficiaries, including Watkins’s children identified in the “Last Will and Testament.”

¶ 9. Thereafter, the Forman Perry Defendants and MSA filed separate “Motions for Summary Judgment,” joined by Empire Abrasive, asserting that applicable statutes of limitations barred Kinsey’s suit. According to the Forman Perry Defendants, “[a]ny wrongful death claims would have expired three years from [July 28, 2003] or July 28, 2006.” As the present action was commenced on April 27, 2007, the defendants contended that Kinsey had “missed the statute of limitations.” The defendants further asserted that “no statutory ‘tolling’ ” existed because of the “Agreed Order of Dismissal Without Prejudice” in Spencer. (Emphasis added.) Finally, the defendants maintained that Section 15-1-69 (the “saving statute”) was inapplicable “[b]ecause Kinsey was not a party to” Spencer and this is “a new action for a new cause by a new plaintiff.” In response, Kinsey asserted that her claims were protected under Section 15-1-69 or, alternatively, that the defendants’ delay in asserting this affirmative defense constituted a waiver.

¶ 10. Following a hearing, the circuit court entered summary judgment, dismissing all defendants with prejudice. The circuit court determined that “[t]here is no dispute that this is a wrongful death action.” (Emphasis added.) The circuit court concluded, inter alia, that the three-year statute of limitations barred this wrongful-death action because it “accrued on July 28, 2003,” and Section 15-1-69 was inapplicable since the action “is not a refiling of a previously avoided or defeated matter ..., nor was it commenced by the prior plaintiff (Watkins) or his executor for the same cause.” (Emphasis added.)

ISSUE

¶ 11. If the statute of limitations was not waived, and if the “saving statute” is inapplicable, then the statute-of-limitations issue is case-dispositive. As such, this Court addresses only whether this wrongful-death action was barred by the statute of limitations.

ANALYSIS

¶ 12. Preliminarily, we address the nature of this action, a wrongful-death case. This Court has stated that Mississippi Code Section 11-7-13, Mississippi’s wrongful-death statute, “encompasses all claims — including survival claims which could have been brought by the decedent,[ ] wrongful-death claims, estate claims, and other claims — resulting from a tort which proximately caused a death.” Caves, 991 So.2d at 150 (emphasis added). See also Clark Sand, 60 So.3d at 161 (citing Caves, 991 So.2d at 148-49) (“[a]n action for wrongful death includes the decedent’s ‘survival-type’ claims, such as claims for his or her personal injury, property damage, and medical and funeral expenses, and the urrongful-death claimants’ so-called ‘wrongful-death’ claims, such as loss of consortium, society, and companionship”) (emphasis added); Long v. McKinney, 897 So.2d 160, 169 (Miss.2004) (“in wrongful death litigation, there are several kinds of damages which may be pursued, and these damages are not due to the same claimants. For instance, the estate is entitled to recover funeral costs and final medical expenses. The beneficiaries are entitled to recover for their respective claims of loss of society and companionship. The wrongful death beneficiaries are entitled to recover the present net cash value of the decedent’s continued existence.”). Section 11-7-13 “requires that all such claims be brought in one suit....” Caves, 991 So.2d at 149 (citing Miss.Code Ann. § 11-7-13 (Rev.2004)) (emphasis added). See also Burley v. Douglas, 26 So.3d 1013, 1019 n. 6 (Miss. 2009) (quoting In re Estate of England,, 846 So.2d 1060, 1068 (Miss.Ct.App.2003)) (“[w]hen the same wrongful conduct causes both personal injury and death, at the instant of death, the recovery for the personal injury is embraced by the ‘one suit’ for wrongful death and is not actionable by the estate under the survival statute.”). A review of Kinsey’s April 2007 Complaint reflects that only “survival-type” claims are presented. Clark Sand, 60 So.3d at 161 (citing Caves, 991 So.2d at 148-49). With that established, this Court considers whether the statute of limitations barred Kinsey’s claims.

I. Whether this action was barred by the statute of limitations.

(A) Waiver

¶ 13. The waiver, vel non, of an affirmative defense is subject to an abuse-of-discretion standard of review. See Jones v. Fluor Daniel Servs. Corp., 32 So.3d 417, 421 (Miss.2010).

¶ 14. In the Complaint, Kinsey failed to state her relationship to Watkins, to reveal that she had been the executrix of Watkins’s estate, or to name Watkins’s estate as a plaintiff. In Answers and Defenses, the defendants raised, inter alia, the affirmative defense of the statute of limitations. Following the “Agreed Initial Discovery Order,” Kinsey failed to respond to the Master Set when due, failed to respond to subsequent letter requests of the defendants, failed to respond to the defendants’ “Motions to Compel,” and responded only after the circuit court entered an “Order Compelling Discovery Responses.” Within two months after receipt of the compelled responses, each defendant either filed or joined in a motion for summary judgment.

¶ 15. This Court has stated that a “long delay” is not enough, “standing alone,” to constitute waiver of an affirmative defense. MS Credit Center, Inc. v. Horton, 926 So.2d 167, 180 (Miss.2006)). Ordinarily, there must be “a substantial and unreasonable delay in pursuing the right, coupled with active participation in the litigation process,” before waiver will be found. Id. The Complaint was insufficient to decipher Kinsey’s status in relation to Watkins. The only significant delay was caused by Kinsey failing to provide timely responses to discovery. When Kinsey finally responded, following the circuit court’s “Order Compelling Discovery Responses,” the defendants pursued this affirmative defense forthwith. At that time, this mass-tort case was still in its early stages. No trial date had been set and no witnesses had been deposed during the period of delay. Under the facts presented, this Court concludes that the defendants did not waive their statute-of-limitations defense.

(B) Statute of limitations and the “saving statute”

¶ 16. “ ‘[T]he application of a statute of limitations is a question of law,’ which we review de novo.” Caves, 991 So.2d at 146 (quoting Sarris v. Smith, 782 So.2d 721, 723 (Miss.2001)).

¶ 17. The applicable statute of limitations provides that “[a]ll actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.” Miss.Code Ann. § 15-1-49(1) (Rev.2003). But in a wrongful-death suit, where multiple claims must be brought in one suit (see ¶ 12 supra), if “death is not an immediate result of the tort, the limitation periods for the various kinds of claims may not begin to run at the same time.” Caves, 991 So.2d at 150. For instance, Watkins’s “survival-type” claims actually accrued on the date of discovery of the injury. See Lincoln Elec. Co. v. McLemore, 54 So.3d 833, 836 (Miss.2010) (quoting Angle v. Koppers, Inc., 42 So.3d 1, 5 (Miss.2010)) (“the plain language of Section 15-1-49 supports an interpretation ‘that the cause of action accrued upon discovery of the injury, not discovery of the injury and its cause.’ ”) (emphasis in original).

¶ 18. The'“survival-type” claims accrued upon Watkins’s diagnosis with silicosis on October 4, 2002. Any “wrongful-death” claims accrued, at the latest, on the date of Watkins’s death on July 28, 2003. See Clark Sand, 60 So.3d at 161; Caves, 991 So.2d at 148. Therefore, in the absence of tolling, the statute of limitations for “survival-type” claims ran on October 4, 2005 (and for “wrongful-death” claims, on July 28, 2006). Spencer was filed within the statute of limitations on December 26, 2002. However, no party was substituted for the deceased Watkins. In Spencer, an “Agreed Order of Dismissal Without Prejudice” was entered as to the Forman Perry Defendants on January 30, 2006, and as to “each and every Defendant” on April 27, 2006. (Emphasis added.) “[T]he filing of a complaint does not toll the statute of limitations when the plaintiff voluntarily dismisses the suit.” McLemore, 54 So.3d at 839 (quoting Koestler v. Miss. Baptist Health Sys., Inc., 45 So.3d 280, 283 (Miss.2010)). Based thereon, when Spencer was dismissed without prejudice, “its pendency did not serve to toll the statute of limitations on ... a wrongful-death action for [Watkins’s] death.” Clark Sand, 60 So.3d at 162. As no wrongful-death action was filed until April 27, 2007, all “survival-type” claims, as against all defendants, were time-barred, unless such “survival-type” claims were “for the same cause” as Watkins’s Spencer claim. Id. (quoting Miss.Code Ann. § 15-1-69 (Rev.2003)). If that was the case, then the dismissal of Spencer “as to a matter of form” implicated Section 15-1-69, the “saving statute.” See Clark Sand, 60 So.3d at 162 (quoting Miss.Code Ann. § 15-1-69 (Rev.2003)). Section 15-1-69 provides a living plaintiff, “or ‘his executor or administrator’ in the event of his death, one year to refile his claim as a ‘new action for the same cause’ in an appropriate venue.” Clark Sand, 60 So.3d at 162 (quoting Miss.Code Ann. § 15-1-69).

¶ 19. In Clark Sand, this Court held that:

[Kelley] was not substituted as the party plaintiff in [the decedent’s mass-tort, personal-injury] claim [filed in federal court] after [the decedent] died but before [the federal suit] was dismissed. This action must be a new and independent u/rongful-death action, brought by Kelley without the saving statute and separate and distinct from [the decedent’s] personal-injury claim in [federal court].
Kelley filed this suit far more than three years after [the decedent’s] diagnosis, so the “survival-type” claims included in Kelley’s action are time-barred.

Clark Sand, 60 So.3d at 162 (emphasis added). When the present action was filed, Watkins’s estate had been closed, and Kinsey had been discharged as executrix thereof, for nearly three years. Kinsey’s Complaint was not filed by Kinsey as the executrix of Watkins’s estate. See Miss.Code Ann. § 15-1-69 (action under the “saving statute” is to be filed by the decedent’s “executor or administrator... .”). The Complaint was styled Diana Kinsey, on behalf of the Wrongful Death Beneficiaries of Ted Watkins, Deceased. It is undisputed that Kinsey was never “substituted as the party plaintiff’ in Spencer after Watkins died, but before Spencer was dismissed. Clark Sand, 60 So.3d at 162. Under such circumstances, this Court concludes that the present suit was a “new and independent wrongful-death action” to which Section 15-1-69 does not apply. Id. Therefore, this wrongful-death suit is barred by the statute-of-limitations.

CONCLUSION

¶ 20. As Kinsey’s claims were barred by the statute of limitations, this Court affirms the “Orders Granting Summary Judgment” entered by the Circuit Court of Harrison County, Mississippi, First Judicial District, dismissing all defendants with prejudice.

¶ 21. AFFIRMED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR.

      . In the event that Kinsey did not survive Watkins, the "Last Will and Testament” specified that all property would be "willfed], give[n], devise[d] and bequeathfed]” to Watkins’s four adult children.

      . The "Certificate of Death” listed Watkins’s cause of death as respiratory failure, ”[d]ue to or as a consequence of” small cell carcinoma of the lungs which metastasized into the brain and liver, itself "[d]ue to or as a consequence of” cigarette smoking.

      . A subsequently-filed "Silica MDL Plaintiff's Sworn Fact Sheet” listed Ted Watkins as a plaintiff in the Spencer case, and the signature section provided that Watkins was deceased. Answers and Amended Answers filed in the present case by several defendants provided that "defendant admits that [Watkins] was at one time a plaintiff” in Spencer.

      . See Miss.Code Ann. § 91-7-237 (Rev.2004) (”[w]hen either of the parties to any personal action shall die before final judgment, the executor or administrator of such deceased party may prosecute or defend such action, and the court shall render judgment for or against the executor or administrator.”).

      . At the time of Watkins’s death, he had more than $35,000 in creditor claims.

      . This Court has summarized Smith as holding that:
      all claims previously filed en masse for silicosis damages that were not filed in the proper venue should be severed as misjoined pursuant to Janssen Pharmaceutica v. Armond, 866 So.2d 1092 (Miss.2004), which requires each claim joined in a single lawsuit to arise from a "distinct, litigable event.” Smith, 926 So.2d at 845 (citing Armond, 866 So.2d at 1099). The Smith Court stated that such a dismissal would be "as to a matter of form,” for purposes of the saving statute, Mississippi Code Section 15-1-69. Smith, 926 So.2d at 845.

        Clark Sand Co., Inc. v. Kelly, 60 So.3d 149, 153 (Miss.2011) (emphasis added). Section 15-1-69 "allows a plaintiff whose claim is dismissed for a 'matter of form’ one year to refile his or her claim in an appropriate venue of his or her choice.” Id. at 153 n. 3 (citing Miss.Code Ann. § 15-1-69 (Rev.2003)) (emphasis added).

      . The defendants included the Forman Perry Defendants, among whom this Court includes Ash Grove Cement Company ("Ash Grove”). While Ash Grove was not a listed defendant in Spencer, Kinsey’s Complaint listed Ash Grove as "d/b/a Precision Packaging, Inc.,” who is a Forman Perry Defendant.
      The other defendants included Lone Star Industries, Inc.; Specialty Sand Company; American Optical Corporation; Empire Abrasive Equipment Corporation ("Empire Abrasive”); Mine Safety Appliances Company (“MSA”); Pearl Sands, Inc.; Pearl Specialty Sands, Inc.; Schmidt Manufacturing, Inc.; and Bob Schmidt, Inc. (collectively, “Other Defendants”).

      . Nowhere in Kinsey's Complaint did she allege her relationship to Watkins.

      . The Forman Perry Defendants sent a similar letter to counsel for Kinsey.

      . Following Kinsey’s failure to respond to their letter, the Forman Perry Defendants filed a "Motion to Compel.”

      . The defendants also contended that Kinsey lacked standing "to bring a wrongful death action for Watkins” under Mississippi Code Section 11-7-13 because she was only his “ex-stepdaughter,” and that since "there was no estate open at the time of the commencement of this suit, Kinsey would have had no authority to bring an action on behalf of the estate of Watkins.” Kinsey responded that she had standing "to bring a survival action and wrongful death suit" because she was an "interested party” as "an heir under the will” whom "the [cjhancery [cjourt determined ... to be the sole devisee and legatee” of Watkins’s estate.

      . "One who brings a claim under the wrongful-death statute to recover only damages under circumstances which, ‘if death had not ensued, would have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof,’ is actually bringing a survival claim ...Caves v. Yarbrough, 991 So.2d 142, 149 (Miss.2008) (quoting Miss.Code Ann. § 11-7-13 (Rev. 2004)) (emphasis added). "The survival action provided in the wrongful death statute is an extension of Mississippi's survival statute, which allows personal actions of a decedent to be pursued after his or her death.” Caves, 991 So.2d at 149 n. 9 (citing Miss.Code Ann. § 91-7-233 (Rev.2004)).