author: RANDOLPH, Justice, KITCHENS, Justice,

text:
    TALLAHATCHIE GENERAL HOSPITAL, Tallahatchie General Hospital Extended Care Facility and Barbara Criswell v. Susan Edwards HOWE and Wayne Edwards, Wrongful Death Beneficiaries of Myrtice Edwards, Deceased.
    No. 2009-IA-00495-SCT.
    Supreme Court of Mississippi.
    Dec. 9, 2010.

      Gaye Nell Lott Currie, Jackson, attorney for appellants.
    William Liston, Winona, Alan D. Lancaster, Grenada, attorneys for appellees.
    Before WALLER, C.J., RANDOLPH and CHANDLER, JJ.
   RANDOLPH, Justice,

for the Court:

¶ 1. On June 9, 2007, eighty-seven-year-old Myrtice Edwards died at Tallahatchie General Hospital and Extended Care Facility (“TGH”), a community hospital. In October 2007, Edwards’s daughter and son, Susan Edwards Howe and Wayne Edwards (“Edwards”), sent a notice of claim and letter to the Tallahatchie County chancery clerk and the attorney for the Talla-hatchie County Board of Supervisors, asserting a wrongful-death claim against Tallahatchie County. The notice of claim was not directed to TGH and was not filed with Bobby Joe Brunson, Jr., the Administrator and Chief Executive Officer (“CEO”) of TGH, as required by Mississippi Code Section 11-46-11(1). See Miss. Code Ann. § 11-46-11(1) (Rev.2002). In late November 2007, Tallahatchie County’s insurance representative faxed a copy of the notice and letter to Brunson. No notice of claim to TGH was ever filed as statutorily required. See id.

¶ 2. On June 2, 2008, Edwards filed a complaint against TGH and Barbara Cris-well, among others, for the alleged wrongful death of Myrtice Edwards. TGH responded with a “Motion to Dismiss” asserting that Edwards had failed to comply with Mississippi Code Section 11-46-11(1), which provides the claimant “shall file a notice of claim” with TGH’s CEO, Brunson, at least ninety days prior to filing the complaint. Id. The motion added that “[bjecause the statute of limitations period has now passed, [the] claims should be dismissed with prejudice.”

¶ 3. Following hearing, the Circuit Court of Tallahatchie County entered an “Order Denying Motion for Summary Judgment.” While noting that “proper service of notice to TGH would be on the [CEO] of TGH not Tallahatchie County[,]” the circuit court found that the strict-compliance standard applied to Section 11-46-11(1) was limited to the ninety-day-notice requirement, and concluded “because TGH timely received a copy of the notice that was sent to the County and that they have presented no evidence that they will be in any manner prejudiced, that this constitutes substantial compliance under the statute.... ” (Emphasis added.) Following that ruling, this Court granted TGH’s “Petition for Interlocutory Appeal.”

FACTS

¶ 4. On May 16, 2007, Myrtice Edwards was admitted to TGH. On June 6, 2007, she was transferred to the emergency room of TGH, where she died on June 9, 2007.

¶ 5. On October 17, 2007, former counsel for Edwards, sent the following:

ATTENTION: THIS CORRESPONDENCE IS A NOTICE OF CLAIM SENT PURSUANT TO M.C.A. § 11-46-11(2)
Sent Certified Mail, Return Receipt Requested
Honorable Anita Mullen Fountain
Tallahatchie County Chancery Clerk
P.O. Box 350
Charleston, Mississippi 38921
Mr. Thomas Reynolds, Esq.
Tallahatchie County Attorney[]
P.O. Box 220
Charleston, Mississippi 38921
Claimant: Wrongful death beneficiaries of [Edwards]
Date of claim: June 9, 2007
Place of loss: Tallahatchie General Hospital
Mechanism of injury: Wrongful death
Extent of injury: Wrongful death
Witnesses/Tortfeasors: Dr. Barbara Criswell, Dr. Theodore T. Lewis, Kim Upton, Tara Hervey, Angie Burnett, Karol Knowles, J. Parks, Rail Bethel, Lisa Smiley, A. Lamar, L. Garth, L. Suggs, P. Trontt, Amy Sykes, Ella, C. Kimble, L. Hankins, Jayson Smith, Angela Lana, Dr. McCune, Dr. C.M. Jordan, Dr. Mark Gunn, Valerie McCord, B. Cresswell
Residence of Claimant: Tallahatchie County, MS
Money Damages Sought: $500,000.00

Attached to the notice was a letter which provided, in pertinent part, that:

Dear Ms. Fountain:
Please be advised that I represent the wrongful death beneficiaries of [Edwards] in their cause of action against Tallahatchie County regarding the above referenced claim. I am sending you this notice of claim in your capacity as Chancery Clerk for Tallahatchie County.
After the County has had a chance to review this matter, please advise me of its response in writing. If I do not receive any correspondence from the County within ninety days of your receipt of this letter, I will proceed forward with litigating this claim against Tallahatchie County.

(Emphasis added.)

¶ 6. In a subsequent deposition, Edwards’s former counsel testified that the notice of claim was intended to “put [Tal-lahatchie] County on notice” as it was “the potential defendant....” (Emphasis added.) He acknowledged that he did not send a notice of claim to TGH’s CEO, Brunson.

¶ 7. On October 22, 2007, Fountain and Reynolds received the notice to Tallahat-chie County. That same day, Reynolds forwarded the notice to the Tackett Insurance Agency. Reynolds instructed Tackett to “notify all necessary parties to assure representation of Tallahatchie County ... on this matter.” (Emphasis added.) Neither Fountain nor Reynolds informed TGH of her or his receipt of the notice. On October 23, 2007, a letter from Tallahatchie County’s insurer, Zurich North America (“Zurich”), to the Tallahatchie County Board of Supervisors, Reynolds, and Tackett concluded that coverage for Edwards’s claim was excluded under the county’s commercial general liability policy.

¶ 8. On or about November 27, 2007, Brunson received a copy of the notice and letter sent to Tallahatchie County, “via facsimile from the offices of ... Tackett Insurance Agency....” Brunson forwarded the fax to his attorney, but did not provide it to TGH’s insurer. The record includes multiple e-mails between March and May 2008 from counsel for TGH to Brunson and Reynolds, among others, noting that no suit had yet been filed in this matter.

¶ 9. On June 2, 2008, Edwards filed a complaint against “[TGH]; Barbara Cris-well, FNP; and Doe Defendants 1-15, for the real, wrongful death of [Edwards]....” The complaint alleged that from May 18, 2007, through June 4, 2007, Myrtiee Edwards was negligently medicated with “improper drugs” at TGH, which “caused or contributed to her death.” The complaint further alleged that proper notice of claim had been served more than ninety days earlier upon Fountain and Reynolds, but failed to allege that notice of claim had been provided to TGH and Brunson.

1Í10. On June 30, 2008, TGH filed a “Motion to Dismiss,” asserting that Mississippi Code Section 11-46-11(1) required that the notice of claim be filed with TGH’s CEO, Brunson, and “[b]ecause [Edwards] failed to give notification of their claim prior to filing suit, them claim must be dismissed. Because the statute of limitations period has now passed, [Edwards’s] claims should be dismissed with prejudice.” Subsequently, the parties agreed to conduct limited discovery for purposes of responding to the “Motion to Dismiss.”

¶ 11. Following a January 30, 2009, hearing, the circuit court entered an “Order Denying Motion for Summary Judgment.” According to the order, “[t]he issue ... is [1] whether the notice of claim sent to Tallahatchie County is sufficient under the statute, and [2] if not, was the receipt of the notice of claim by the CEO of TGH sufficient notice under the statute.” As to (1), the circuit court concluded that Edwards “sued TGH and proper service of notice to TGH would be on the [CEO] of TGH not Tallahatchie County.” Regarding (2), the circuit court stated that:

every post -[University of Mississippi Medical Center v. Easterling, 928 So.2d 815 (Miss.2006) ] case found by this [c]ourt on the issue of [Section] 11-46-11(1) specifically notes the requirement of strict compliance with the 90 day notice. Those cases deal with situations where no notice was given or suit was filed within the ninety days. The post-Easterling cases were decided on issues other than who received the notice. This [c]ourt assumes that if the Supreme Court in Easterling had meant to overrule Powell [v. City of Pascagoula, 752 So.2d 999 (Miss.1999) ] as to the requirement of substantial compliance in regard to whom notice is sent, that the Supreme Court would have specifically overruled Powell or, alternatively, noted in ... Easterling ... that strict compliance was the law as to [Section] 11^16-11(1) rather than specifically noting it applied to the 90 day requirement contained in [Section] 11-46-11(1).

Based thereon, the circuit court concluded that:

because TGH timely received a copy of the notice that was sent to [Tallahatchie County] and ... they have presented no evidence that they will be in any manner prejudiced, ... this constitutes substantial compliance under the statute and is the appropriate standard under Powell as relates to the person receiving the actual notice.... [T]here has been no argument presented that the 90 day notice requirement under [Section] 11 — 46— 11(1) was not otherwise strictly complied with. Therefore, ... based on the case law and this [cjourt’s interpretation of the statute, ... notice was properly given.

¶ 12. Thereafter, this Court granted TGH’s “Petition for Interlocutory Appeal.”

ISSUES

¶ 13. On appeal, TGH presents the following issues:

(1) Whether the sovereign immunity of a political subdivision is waived where a party fails to give notice under Mississippi Code Section 11 — 46—11(1) of an intent to sue that particular entity.
(2) Whether substantial compliance is the standard with regard to the notice provision of Mississippi Code Section 11-46-11(1), particularly that notice must be served upon the proper entity, and if so, if the fact that the chief executive officer of a public hospital by happenstance receives a copy of a notice of an intent to sue another party constitutes substantial compliance with the pre-suit notice provisions of Mississippi Code Section 11 — 46—11(1).
(3) When sovereign immunity has not been waived, whether the simple filing of a complaint can toll the statute of limitations.

STANDARD OF REVIEW

¶ 14. This Court has stated that it:

[“]reviews errors of law, which include the proper application of the Mississippi Tort Claims Act, de novo.” [Fairley v. George County, 800 So.2d 1159, 1162 (Miss.2001) ]. Moreover, we review summary judgments de novo. Grange Mut. Cas. Co. v. U.S. Fid. & Guar. Co., 853 So.2d 1187, 1190 (Miss.2003). The facts are viewed [in] the light most favorable to the nonmovant.... A nonmovant must show by specific facts that there exists a genuine issue of material fact; that is, the nonmoving party may not rest on allegations or denials in the pleadings to withstand the motion. Id.

Fairley v. George County, 871 So.2d 713, 716 (Miss.2004).

ANALYSIS

I. Whether the sovereign immunity of a political subdivision is waived where a party fails to give notice under Mississippi Code Section 11-46-11(1) of an intent to sue that particular entity.

and

II. Whether substantial compliance is the standard with regard to the notice provision of Mississippi Code Section 11-46-11(1), particularly that notice must be served upon the proper entity, and if so, if the fact that the chief executive officer of a public hospital by happenstance receives a copy of a notice of an intent to sue another party constitutes substantial compliance with the pre-suit notice provisions of Mississippi Code Section 11-46-11(1).

¶ 15. “The basic principle of sovereign immunity is that the ‘king can do no wrong.’ Consequently, the [S]tate is free from any liabilities unless it carves an exception. These exceptions come in the form of tort claims acts.” Mohundro v. Alcorn County, 675 So.2d 848, 852 (Miss.1996) (quoting Grimes v. Pearl River Valley Water Supply Dist., 930 F.2d 441, 443-44 (5th Cir.1991)). See also Miss. Code Ann. § 11-46-7(1) (Rev.2002) (“[t]he remedy provided by this chapter against a governmental entity or its employee is ex-elusive of any other civil action or civil proceeding by reason of the same subject matter against the governmental entity or its employee.... ”); Reaves v. Randall, 729 So.2d 1237, 1240 (Miss.1998) (the Mississippi Tort Claims Act (“MTCA”) was “adopted to reduce the harsh effect” of sovereign immunity). In enacting the MTCA, the Legislature reaffirmed the principle of sovereign immunity. See Miss.Code Ann. § 11-46-3 (Rev.2002). Nonetheless, in Mississippi Code Section 11-46-5(1), the Legislature waived such immunity of the state and its political subdivisions “from claims for money damages arising out of the torts of such governmental entities and the torts of their employees while acting within the course and scope of their employment ... to the extent of the maximum amount of liability provided for in Section 11-46-15.” Miss. Code Ann. § 11-46-5(1) (Rev.2002). But the Legislature added that “any claim made or suit filed against a governmental entity or its employee to recover damages for any injury for which immunity has been waived under this chapter shall be brought only under the provisions of this chapter.... ” Miss.Code Ann. § 11-46-7 (Rev.2002). See also Easterling, 928 So.2d at 818 (“[t]he [MTCA] sets forth procedures a claimant must follow in order to assert a claim against a governmental entity.”) (emphasis added); Vortice v. Fordice, 711 So.2d 894, 896 (Miss.1998). The Legislature further mandated clear requirements to be met by an individual seeking to avail himself or herself of the remedies arising under the provisions of the chapter. Miss.Code Ann. § 11 — 46— 11(1) (Rev.2002).

¶ 16. As a community hospital located in Tallahatchie County, Mississippi, TGH is a “political subdivision” of the State. See Miss.Code Ann. § 11 — 46—l(i) (Rev. 2002). Accordingly, Edwards is subject to the notice requirements and statutes of limitations provided in Mississippi Code Section 11^46-11. See Miss.Code Ann. § 11-46-11 (Rev.2002). Section 11-46-11(1) provides, in pertinent part, that:

[a]fter all procedures within a governmental entity have been exhausted, any person having a claim for injury arising under the provisions of this chapter against a governmental entity or its employee shall proceed as he might in any action at law or in equity; provided, however, that ninety (90) days prior to maintaining an action thereon, such person shall file a notice of claim with the chief executive officer of the governmental entity. Service of notice of claim may also be had in the following manner: If the governmental entity is a county, then upon the chancery clerk of the county sued;[] if the governmental entity is a municipality, then upon the city clerk.

Miss.Code Ann. § 11^16-11(1) (Rev.2002) (emphasis added). Based upon subsection (1), the circuit court correctly found that “proper service of notice to TGH would be on the [CEO] of TGH not Tallahatchie County.”

¶ 17. However, the circuit court’s conclusion that “substantial compliance” is the standard “in regard to whom the notice is sent” is erroneous. This Court has a “constitutional mandate to faithfully apply the provisions of constitutionally enacted legislation.” Easterling, 928 So.2d at 820. The Legislature’s statutory use of the term “shall” connotes a mandatory requirement. See Weiner v. Meredith, 943 So.2d 692, 694 (Miss.2006). Section 11-46-11(1) expressly provides that the notice of claim shall be filed “with the chief executive officer of the governmental entity.” Miss.Code Ann. § 11-46-11(1) (Rev.2002). “It would set a dangerous precedent if this Court were to ignore specific statutory requirements for notice.” Reaves, 729 So.2d at 1240 (quoting Carpenter v. Dawson, 701 So.2d 806, 808 (Miss.1997)). This Court has expressly and clearly stated that Section 11-46-11(1) provides a “mandatory notice requirement. ...” S. Cent. Reg’l Med. Ctr. v. Guffy, 930 So.2d 1252, 1259 (Miss.2006) (quoting Black v. City of Tupelo, 853 So.2d 1221, 1226 (Miss.2003)). See also Arceo v. Tolliver, 19 So.3d 67, 72 (Miss.2009) (“the MTCA requires written notice of a claim in advance of the filing of a lawsuit, a requirement which ... is strictly applied”); Price v. Clark, 21 So.3d 509, 518 (Miss. 2009) (“[s]trict compliance with statutory notice is required ... ”); Easterling, 928 So.2d at 820 (quoting Ivy v. GMAC, 612 So.2d 1108, 1116 (Miss.1992)) (“the ninety-day notice requirement ... is a ‘hard-edged, mandatory rule which the Court strictly enforces’ ”). In Arceo, this Court added that, under the Medical Malpractice Tort Reform Act, “[t]he mandatory nature of the notice requirement is such that what the recipient may or may not actually have known is irrelevant.” Arceo, 19 So.3d at 72. Therefore, to the extent that Powell holds otherwise, it is overruled.

¶ 18. It is undisputed that Edwards never filed the statutorily required notice with TGH’s CEO, Brunson, and absent compliance with the statute, TGH’s immunity is intact. See Miss.Code Ann. § 11-46-7(1) (Rev.2002) (“any claim made or suit filed against a governmental entity or its employee to recover damages for any injury for which immunity has been waived under this chapter shall be brought only under the provisions of this chapter.... ”). As Fountain and Reynolds were not the “chief executive officer of the governmental entity[,]” under Mississippi Code Seetion 11-46-11(1), they were not the proper parties to receive the notice of claim under the MTCA. See Parker v. Harrison County Bd. of Supervisors, 987 So.2d 435, 440-41 n. 7 (Miss.2008) (Associated Adjusters was not the CEO of the governmental entity, therefore, Associated Adjusters was “not the proper party to receive notice under the [MTCA].”); Harris v. Miss. Valley State Univ., 873 So.2d 970, 988 (Miss.2004) (“[T]he President of MVSU is the chief executive officer of the university. IHL is not a substitute for the President of MVSU.”). Edwards failed to comply with the mandatory requirements of Section 11-46-11(1) by failing to file a notice of claim with TGH’s CEO, Brunson. If notice is not given to the proper entity, the entire purpose of the ninety-day period is thwarted. Under the circuit court’s ruling, a public hospital could be deemed to be on notice of a claim regardless of the form or source of its information. As Edwards was and remains noncompliant with the mandatory provisions of Section 11-46-11(1), the lawsuit should be dismissed. See Price, 21 So.3d at 522 (“[b]ecause Price failed to comply with the requisite notice requirements, dismissal was the proper remedy....”).

III. When sovereign immunity has not been waived, whether the simple filing of a complaint can toll the statute of limitations.

¶ 19. On this issue, the parties seek an advisory opinion in the event that Edwards refiles suit. But this Court does not issue advisory opinions. See Scoggins v. Baptist Mem’l Hosp.-Desoto, 967 So.2d 646, 649 n. 1 (Miss.2007) (“The purpose of our appellate review is not to settle questions in the abstract or to issue advisory opinions.”). Additionally, as the circuit court entered an “Order Denying Motion for Summary Judgment,” we will not hold it in error on a matter upon which it has not yet ruled. In sum, the issue of the tolling of the statute of limitations “is premature and not ripe for appellate review, and we decline to address it today.” Thoms v. Thoms, 928 So.2d 852, 855 (Miss.2006).

CONCLUSION

¶ 20. Accordingly, this Court reverses the Circuit Court of Tallahatchie County’s “Order Denying Motion for Summary Judgment,” and remands for entry of a judgment consistent with this opinion.

¶ 21. REVERSED AND REMANDED.

WALLER, C.J., CARLSON, P.J., DICKINSON, LAMAR, CHANDLER AND PIERCE, JJ„ CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, P.J.

KITCHENS, Justice,

dissenting:

¶ 22. For the reasons explained by my colleagues in numerous separate opinions regarding compliance with statutory pre-suit notice requirements, I respectfully disagree that the failure strictly to comply with these kinds of legislative mandates requires dismissal of any sort. See, e.g., Arceo v. Tolliver (“Tolliver II"), 19 So.3d 67, 79-81 (Miss.2009) (Graves, P.J., dissenting); Price v. Clark, 21 So.3d 509, 531-40 (Miss.2009) (Graves, P.J., dissenting); Bunton v. King, 995 So.2d 694, 697-98 (Miss.2008) (Graves, J., dissenting); Cmty. Hosp. of Jackson v. Goodlett, 968 So.2d 391, 398-400 (Miss.2007) (Diaz, P.J., dissenting); Caldwell v. N. Miss. Med. Ctr., 956 So.2d 888, 895-97 (Miss.2007) (Diaz, J., dissenting); Arceo v. Tolliver (“Tolliver I”), 949 So.2d 691, 698-704 (Miss.2006) (Graves, J., dissenting); Univ. of Miss. Med. Ctr. v. Easterling, 928 So.2d 815, 820-21 (Miss.2006) (Easley, J., dissenting); Fairley v. George County, 871 So.2d 713, 718-24 (Miss.2004) (Easley, J., concurring in result). That Tallahatchie General Hospital had actual notice of the potential lawsuit reinforces my opinion that the trial judge did not err by refusing to dismiss the claim.

¶28. Setting aside my respectful disagreement with the majority regarding noncompliance, I take issue with the Court’s refusal to address whether the dismissal should be with or without prejudice. The majority holds that our addressing this issue would constitute an advisory opinion; however, the issue is squarely before us. By holding that the case should simply be dismissed without addressing whether such dismissal should be with or without prejudice, the trial judge and the parties, on remand, are left without the guidance they have every right to expect from us. This is a question of law, and we are duty-bound to address it. Indeed, the case is before us on an interlocutory appeal, a process that is designed to: “(1) Materially advance the termination of the litigation and avoid exceptional expense to the parties; or (2) Protect a party from substantial and irreparable injury; or (3) Resolve an issue of general importance in the administration of justice.” M.R.A.P. 5(a). Today’s majority opinion does none of these things and, thus, is wasteful of judicial resources.

¶ 24. Moreover, in Tolliver I, 949 So.2d 691, a case with an almost identical procedural posture, this Court had no reservations about giving direction to the trial court. In that case, the plaintiff had failed to provide a notice-of-claim letter pursuant to Mississippi Code Section 15-1-36(15) (Rev.2003). Id. at 692. The defendants moved to dismiss the case or, in the alternative, grant summary judgment, and the trial court denied the motion. Id. After granting the defendants’ petition for interlocutory appeal, this Court held that the trial court erred in denying summary judgment and that the case should have been dismissed without prejudice. Id. at 692, 698. As in Tolliver I, this Court ought to clarify whether dismissal is to be with or without prejudice.

¶ 25. But, because I would affirm the trial court’s denial of summary judgment, inasmuch as the defendants received actual notice of the suit, albeit somewhat circuitously, I respectfully dissent.

GRAVES, P.J., JOINS THIS OPINION.

      . Reynolds was the attorney for the Tallahat-chie County Board of Supervisors, but not for TGH.

      . Neither Zurich nor Tackett Insurance Agency provided liability insurance services to TGH.

      . At this time, another attorney represented Edwards.

      . TGH’s "Motion to Dismiss” was converted into a motion for summary judgment by virtue of depositions presented to the circuit court. See Miss. R. Civ. P. 12(b) ("[i]f, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment. ...").

      5. However, Mississippi Code Section 11 — 46— 11(9) sets forth a list of outright exemptions from governmental liability. See Miss.Code Ann. § 11-46-11(9) (Rev.2002).

      . This Court finds this provision of Section 11-46-11(1) inapplicable. While Tallahatchie County owns TGH, as a "community hospital,” TGH is a "separate statutory entit[y]” from Tallahatchie County. See Miss.Code Ann. §§ 11 — 46—l(i) (Rev.2002) (a “community hospital" is designated as a "political subdivision" separate and apart from a county or municipality); 41-13-10(c) (Rev.2002) (defining "community hospital”).

      . With respect to the argument that the strict-compliance standard of Easterling applied "only ... in those cases in which there has been no compliance with the ninety-day notice requirement[,]” the Mississippi Court of Appeals has held:
      [w]e do not agree. It is apparent that East-erling's strict compliance standard is meant to apply equally to cases in which no notice is filed, notice is filed after the complaint, or the complaint is filed sooner than ninety days after filing notice. In so finding, we not only look to the facts of Easterling but also the facts of those cases it explicitly overruled.

        Brown v. Sw. Miss. Reg'l Med. Ctr., 989 So.2d 933, 936-37 (Miss.Ct.App.2008) (emphasis added).

      . "This Court repeatedly has applied the same standards of construction and application to the Medical Malpractice Tort Reform Act as those applied to the [MTCA].” Arceo, 19 So.3d at 71.

        .Powell also is a factually unique case. There, the plaintiff sued the City of Pascagou-la following an automobile accident with a city police officer. See Powell, 752 So.2d at 1001. The notice-of-claim letter had been sent to the city clerk at a time when Section 11-46-11(1) provided only that notice of claim shall be filed "with the chief executive officer of the governmental entity[,]" although even the city attorney had advised the plaintiff that service upon the city clerk was "as good as any.” Id. at 1001, 1003 (quoting Miss. Code Ann. § 11-46-11(1)). By the time this Court ruled upon the case, however, the statute had been amended to permit service of the notice of claim upon the city clerk when suing a municipality. See id.


source: Caselaw Access Project

author: CARLSON, Presiding Justice,

license: Public Domain

text:
    Thomas IRBY v. STATE of Mississippi.
    No. 2009-KA-01005-SCT.
    Supreme Court of Mississippi.
    Dec. 9, 2010.

      Office of Indigent Appeals by George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by John R. Henry, Jr., attorney for appellee.

      Before CARLSON, P.J., RANDOLPH and KITCHENS, JJ.
   ON MOTION FOR REHEARING

CARLSON, Presiding Justice,

for the Court:

¶ 1. The motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted therefor.

¶ 2. A Clarke County jury found Thomas Irby guilty of DUI maiming. The Clarke County Circuit Court, Judge Robert W. Bailey presiding, sentenced Irby to serve a sentence of twenty-five years in the custody of the Mississippi Department of Corrections as a habitual offender. Aggrieved, Irby appeals. Finding no error, we affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 3. On the afternoon of May 10, 2008, while driving a Ford Ranger pick-up truck, Thomas Irby collided with a Dodge van driven by Olivia Miller. Also occupying Olivia’s vehicle was her husband, Justin Miller. All three were injured. Both drivers sustained injuries to their legs and feet, and the passenger, Justin, sustained brain injuries and was in a coma for four weeks after the accident. At the time of trial, Justin had use of only his left arm and hand. He was unable to speak clearly. He had received care at various hospitals, including a facility specializing in brain injury in Atlanta, Georgia. At the time of trial, the Millers had incurred $2,000,000 in medical bills. Justin’s prognosis at the time of trial was uncertain, and doctors were unable to predict whether he would ever walk again. Irby’s charge of DUI maiming stemmed solely from the injuries sustained by Justin.

¶ 4. According to Olivia Miller’s testimony, on the day of the accident, she was traveling north on County Road 430 in Clarke County. Upon passing over a hill, she discovered a pick-up truck in her lane about a tenth of a mile in front of her, traveling south in the northbound lane. Olivia testified that to her right was a ditch, and that because of the ditch, she did not feel she could safely veer off the road to her right. Accordingly, she veered sharply into the left lane. As soon as she went left, Irby veered to his right into the proper lane. As a result, the two automobiles collided, not quite head-on, but at a slight angle. Olivia Miller further testified that just after the accident, while in close proximity with Irby, she had detected the smell of alcohol.

¶ 5. Clarke County Deputy Sheriff Jerry Ivey responded to the scene of the accident. After impact, both vehicles were observed to have come to a stop on the west side of the highway. Ivey diagrammed the final resting place of each vehicle and testified that, while at the scene, he had observed tire marks from the pick-up in the northbound lane headed south and tire marks from the van in the northbound lane headed north. He testified that he had smelled alcohol in the pick-up truck and had observed a beer can lying inside the truck on the driver’s side floorboard.

¶ 6. Ivey followed the ambulance transporting Irby to a local hospital and spoke with Irby at the hospital. Ivey testified that he had asked for and received consent from Irby for a blood sample. Ivey further testified that he had read to Irby the contents of the law-enforcement form requesting that the hospital withdraw a blood sample. Ivey testified that he had informed Irby of his right to refuse consent to draw the blood sample. Ivey testified that the nurse had read Irby a second form, the Consent by Individual form (hereinafter “consent form”), which both Irby and the nurse had signed. The consent form read, in pertinent part, as follows: “I, Thomas Irby, consent to the taking of a blood or urine specimen from me for an investigation by a duly authorized law enforcement official.... ” Moreover, the form explicitly stated that “results of the test may be made available to law enforcement.” According to the deputy, Irby had appeared “alert and awake.” The consent form bears Irby’s signature. After Nurse Lauren Westbrook drew Irby’s blood, Ivey sent the samples to the Mississippi Crime Laboratory in Meridian.

¶ 7. John Stevenson, a forensic scientist with the Mississippi Crime Laboratory, testified regarding the results of the blood-alcohol and drug analysis. Irby’s blood tested positive for benzodiazepines, ben-zoylecgonine (a breakdown product of cocaine), and opiates. The particular benzo-diazepine found in Irby’s blood sample was alprazolam, commonly known as Xanax. The opiate was hydrocodone, which is commonly prescribed as a pain-killer. As to the breakdown product of cocaine, or metabolite of cocaine, Stevenson explained that cocaine “is in your system very readily. It is maybe 30 minutes at the most. It’s very rapidly gone once you use. The metabolites are what are found ... not the parent compound.” Stevenson testified that a positive result for a metabolite of cocaine means that a person has ingested cocaine; however, Stevenson had been unable to determine when Irby had ingested cocaine relative to the accident. Irby’s blood sample was then sent to National Medical Services Laboratories (NMS Labs) in Pennsylvania for quantitative analysis.

¶ 8. Dr. Laura Labay, a forensic toxicologist with NMS Labs, testified as to the quantitative analysis of Irby’s blood sample. Irby’s blood sample contained 410 nanograms per milliliter of the cocaine metabolite benzoylecgonine, 90 nanograms per milliliter of hydrocodone, and 87 nano-grams per milliliter of alprazolam. Dr. Labay testified that the benzoylecgonine in and of itself would have had no pharmacological activity or effect. Dr. Labay testified that the therapeutic range for alprazo-lam is 10 to 50 nanograms per milliliter and that a concentration of 75 nanograms per milliliter or more is potentially toxic. Side effects of alprazolam include fatigue and drowsiness. Likewise, hydrocodone, a semisynthetic narcotic analgesic, produces the side effect of drowsiness. As to the effects of these drugs on Irby’s ability to operate a motor vehicle, Dr. Labay testified from her report:

Based on the concentration of Alprazo-lam and Hydrocodone found in this case, it can be stated with reasonable scientific certainty that if the individual showed signs of impairment ... then these substances can be responsible for the production of that impairment, especially in the absence of a more competent cause. Such impairment would be characterized by diminished faculties associated with the safe operation of a motor vehicle, including impaired alertness, judgement [sic] perception, coordination, response time and sense of care and caution. These decrements can cause the individual to be impaired to and beyond the point of rendering this individual unfit to operate a motor vehicle safely.

¶ 9. Two additional witnesses for the State testified that they had seen Irby earlier in the day on May 10, 2008. Both testified that Irby had run his pick-up truck off Causeyville Road and had gotten stuck in a ditch. One of the passersby, Gene Jay, stopped to see if Irby was injured, but then declined Irby’s request for assistance in pulling his truck out of the ditch because Jay was of the opinion that Irby’s behavior appeared erratic and that Irby should not have been driving.

DISCUSSION

¶ 10. Irby raises three points of error for this Court’s review: (1) Was blood evidence improperly admitted, (2) were the defendant’s confrontation rights protected, and (3) was the verdict supported by the evidence?

¶ 11. Irby was charged pursuant to Mississippi Code Section 68-11-30(5) (Rev. 2004), in connection with the permanent injuries sustained by Justin Miller in the collision. The necessary elements of a conviction pursuant to Section 63-11-30(5) are: (1) that the defendant negligently caused the death, disfigurement, or permanent disability or destruction of “the tongue, eye, lip, nose or any other limb, organ or member of another” (2) while operating a motor vehicle under the influence of alcohol or a controlled substance which has impaired such person’s ability to operate a motor vehicle. Miss.Code Ann. § 63-11-30(1)0»), (5) (Rev.2004).

I. WHETHER THE BLOOD EVIDENCE WAS IMPROPERLY ADMITTED.

¶ 12. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const, amend. IV. “The people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search.” Miss. Const, art. 3 § 23. “The degree of intrusion necessary in the taking of a blood sample is sufficient to require the presence of probable cause.” McDuff v. State, 763 So.2d 850, 854 (Miss.2000) (quoting Schmerber v. Cal., 384 U.S. 757, 770-71, 86 S.Ct. 1826, 1835-36, 16 L.Ed.2d 908, 919-20 (1966)).

¶ 13. Voluntary consent to a search eliminates an officer’s need to obtain a search warrant. Graves v. State, 708 So.2d 858, 863 (Miss.1997) (citing Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946); Jones v. Miss. Dep’t of Pub. Safety, 607 So.2d 23, 26 (Miss.1991); Waldrop v. State, 544 So.2d 834, 837 (Miss.1989); Whittington v. State, 523 So.2d 966, 973 (Miss.1988); Hudson v. State, 475 So.2d 156, 159 (Miss.1985)). “[T]he question whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances.” Id. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 223, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Jones, 607 So.2d at 26).

¶ 14. In addition to voluntary consent, a knowledgeable waiver of this right to be free from unreasonable search also is required. Penick v. State, 440 So.2d 547, 549 (Miss.1983). Irby cites the rule in Penick, which states that, for a consent to search to be valid, “it must clearly appear” that the subject “voluntarily permitted, or expressly invited and agreed to the search, being cognizant of [his] rights in the premises when the officer proposed to [him], by asking [his] permission, to make the search without a warrant.” Id. (citing Smith v. State, 133 Miss. 730, 736, 98 So. 344, 345 (1923)) (emphasis added).

¶ 15. In Graves v. State, 708 So.2d 858, 864 (Miss.1997), this Court held:

If the defendant claims that his waiver was not knowledgeable, the burden is on him to raise the issue of lack of knowledgeable waiver. Knowledgeable waiver is defined as consent where the defendant knows that he or she has a right to refuse, being cognizant of his or her rights in the premises.

Graves, 708 So.2d at 864 (citing Jones, 607 So.2d at 28).

¶ 16. “[A] trial judge enjoys a considerable amount of discretion as to the relevancy and admissibility of evidence. Unless this judicial discretion is so abused as to be prejudicial to the accused, we will not reverse his ruling.” Graves v. State, 492 So.2d 562, 565 (Miss.1986) (citing Page v. State, 295 So.2d 279 (Miss.1974); Shearer v. State, 423 So.2d 824, 826 (Miss.1983)).

¶ 17. Irby’s argument as to this issue is two-fold: (1) the trial court erred in admitting the blood analysis because the nurse who drew the blood did not testify to the voluntariness of Irby’s consent; and (2) because Irby was being prepared for surgery, he was incapacitated and unable to consent knowingly to providing a blood sample. Accordingly, Irby maintains that testimony regarding “other substances” in Irby’s blood sample should not have been admitted.

¶ 18. During Stevenson’s testimony, Irby objected to the admission of the blood-analysis results, stating that “we’ve objected to the method [sic] the blood was taken, so we certainly have to object to the way these reports are now being presented to the Court for entry into evidence.” The results were admitted over Irby’s objection. Irby also objected to Ivey’s testimony that he had observed Westwood read the contents of the written consent form and had observed both Irby and Westwood sign the form. The objection to the officer’s testimony regarding written consent made at trial was that Westbrook’s testimony was necessary to establish a “chain of custody.” An objection based on failure to establish a chain of custody is not an objection based on a failure to establish the voluntariness of consent. Mississippi Rule of Evidence 103(a)(1) reads, in pertinent part, as follows:

(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection....

The objection made at trial did not state with requisite specificity the basis for the objection to the admission of the testimony. An objection based on the fact that the officer could not testify to what he personally observed was properly overruled by the trial court. Ivey could testify to what he personally observed concerning Irby’s written consent to the blood test. See Miss. R. Evid. 602.

¶ 19. Irby cites Comby v. State, 901 So.2d 1282, 1285-86 (Miss.Ct.App.2004), in support of his argument that it was necessary for Westbrook to testify. In Comby, the Court of Appeals noted the following regarding the facts of the case:

Comby signed a consent form to have his blood drawn and tested for law enforcement purposes. To determine whether Comb/s consent was valid, the trial court, outside the presence of the jury, heard testimony from the nurses who were present when Comby signed the consent form, the deputy who obtained Comby’s consent, and Comby himself.

Id. at 1285. In Comby, the appellate court upheld the trial court’s ruling that the defendant’s consent was voluntary. Id. at 1285-86. Irby also cites the following dicta from Cutchens v. State, 310 So.2d 273, 280 (Miss.1975):

It would have been better practice to have examined into the voluntariness of the consent outside of the presence of the jury but since the evidence was sufficient to sustain the fact that Cutch-ens’ consent was voluntarily given no prejudicial error was committed. If the evidence had shown lack of voluntary consent, a reversible error would have resulted requiring reversal and remand.

Id. at 280.

¶ 20. While Irby objected to the testimony of Stevenson and Ivey, Irby never properly raised the validity-of-consent issue. Accordingly, the trial court never ruled on the voluntariness of Irby’s consent. The suppression of the blood sample was first raised in a motion in limine to exclude the analysis on the basis that the officer had obtained a blood sample under Mississippi Code Section 63-11-7 (Rev. 2004), a statute which allows for obtaining a blood sample for the purposes of a blood-alcohol analysis from- a person “unconscious at the time of arrest or apprehension or when the test is to be administered, or is otherwise in a condition rendering him incapable of refusal ...” and “under the influence of intoxicating liquor.” Miss. Code Ann. § 63-11-7 (Rev.2004). According to Irby’s motion in limine, the analysis for other substances should have been suppressed because the statute at issue allows only for blood-alcohol analysis, not for the presence of other intoxicating substances. The State, however, never compelled the blood sample under Section 63-11-7, but always maintained that Irby had consented to the blood test.

¶ 21. Additional objections to Ivey’s testimony regarding the validity of Irby’s consent were not made by the defense until Ivey was later recalled to the stand after testimony by both blood analysts already had been admitted. Accordingly, Irby did not timely object to the admission of the blood-analysis evidence. For all the reasons stated above, we find that the blood-analysis evidence was properly admitted. Thus, this issue has no merit.

II. WHETHER IRBY’S SIXTH-AMENDMENT CONFRONTATION RIGHTS WERE PROTECTED.

¶ 22. Irby argues that his right to cross-examine Ivey was limited by the trial judge, in violation of his right to confrontation under the Sixth Amendment. In his brief, Irby states that the trial court sustained an objection to the defense’s line of questioning regarding the validity of Irby’s consent. This statement from Irby’s brief does not accurately reflect the actual ruling by the trial court.

¶23. Ivey testified as to the accident scene and Irby’s oral and written consent to the blood test. As previously discussed, the defense objected to this testimony on the basis that Westbrook had not been called to testify; thus, Ivey should not have been allowed to testify as to written consent. This objection was heard and argued outside the presence of the jury. The trial court overruled the defense’s objection, because Ivey had witnessed the defendant and the nurse sign the consent form and thus had personal knowledge of consent. The officer went on to testify that, after the blood sample was obtained, the vials of blood were sent to the Mississippi Crime Laboratory. When asked if the defense wished to cross-examine Ivey at that time, the defense declined to do so. Following Ivey’s testimony, the State introduced testimony, absent objection, from the defense, as to the other substances found in Irby’s blood-sample analyses.

¶ 24. Ivey later was recalled by the State. After a brief direct examination, Ivey was cross-examined regarding the diagram of the accident and observations of the victims after the crash. Then, defense counsel questioned Ivey regarding his actions upon arriving at the hospital. The defense began a line of questioning as to whether Ivey would have obtained the blood sample even if Irby had refused to give consent. As defense counsel began to recite for Ivey the statute pertaining to withdrawing blood for the purpose of obtaining a blood-alcohol analysis, the State objected on the basis of relevance. The Court sustained the State’s objection on the basis that the State had chosen to travel under the presumption that Irby had given valid consent to the blood sample. Defense counsel then asked whether the victims were unconscious, to which the State objected on the same basis that this question pertained to the statute, not to consent. The Court then dismissed the jury-

¶ 25. Outside the presence of the jury, the State argued that the fact that Irby had given oral and written consent already had been admitted into evidence in Ivey’s previous testimony. Moreover, the blood analysis from the Mississippi Crime Lab and Dr. Labay already had been admitted into evidence. Thus, according to the State, validity of consent had been waived, and whether the officer had obtained the blood sample pursuant to Section 63-11-7 was irrelevant. The defense argued:

We are attacking the consent. It was asked in direct and we have an opportunity to cross-examine him on that. Now, whether or not this officer had an alternate way to get exactly what he had already sought out to get, i.e., blood, in this situation is motive. That’s why we’re questioning it. We think it’s motive on whether or not he did or did not have Mr. Irby sign this form under his own consent or his own permission. It goes to ... [the officer’s] intent....

The trial court ruled that defense counsel could proceed with this line of questioning only outside the presence of the jury. In doing so, the trial judge stated that the motion in limine, which sought to suppress the blood sample because it was compelled by Section 63-11-7, was filed but never argued; thus, it had been waived. Moreover, the trial court found irrelevant “whether there’s an alternate method” for compelling a blood sample, which the State had never pursued, since Irby had given his consent.

¶ 26. Only after the trial judge dismissed the jury did defense counsel move on from the line of questioning on whether Ivey thought he could compel a blood sample from Irby pursuant to Section 63-11-7 to a line of questioning as to whether Ivey considered the defendant to be alert and able to give consent. Ivey testified that Irby was conscious and capable of giving consent as well as informed of his right to withhold consent. We find no error on the part of the trial judge, as the trial judge properly ruled that Ivey’s “motive” or “intent” for obtaining consent from Irby was irrelevant, and evidence of it should not be presented to the jury. Additionally, as previously discussed, Irby never properly moved the trial court to make an on-the-record finding outside the presence of the jury, nor did Irby ever proffer any evidence that Irby was suffering from diminished capacity to consent to the blood test. Accordingly, this argument is without merit.

III. WHETHER THERE IS INSUFFICIENT EVIDENCE TO SUPPORT THE VERDICT AND WHETHER THE VERDICT IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 27. Irby contends that the verdict was against the overwhelming weight of the evidence and that the evidence was insufficient to support the verdict. Irby filed his motion for a new trial and/or judgment notwithstanding the verdict on May 14, 2009. It was denied by order of the trial court entered May 19, 2009.

On review of a challenge to the weight of the evidence, this Court will reverse for a new trial only if the trial court’s ruling was an abuse of discretion. Miller v. State, 980 So.2d 927, 929 (Miss.2008). We will not disturb the verdict unless it “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (Miss.2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)).

Neal v. State, 15 So.3d 388, 410 (Miss.2009). The “evidence should be weighed in the light most favorable to the verdict.” Id.

¶ 28. When there is a question whether the evidence was sufficient to support the verdict, the State is given “the benefit of all favorable inferences that may reasonably be drawn from objective facts established by the evidence.” Edwards v. State, 469 So.2d 68, 70 (Miss.1985) (citing Glass v. State, 278 So.2d 384, 386 (Miss.1973)). “If the facts and inferences so considered point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty, granting the motion [for judgment notwithstanding the verdict] is required.” Id. (citing May v. State, 460 So.2d 778, 781 (Miss.1984)).

¶ 29. In today’s case, the State was required to prove the following elements beyond a reasonable doubt: (1) that defendant negligently caused the death, disfigurement, or permanent disability or destruction of “the tongue, eye, lip, nose or any other limb, organ or member of another” (2) while operating a motor vehicle under the influence of alcohol or a controlled substance which has impaired such person’s ability to operate a motor vehicle. Miss.Code Ann. § 63 — 11—30(l)(b), (5) (Rev. 2004).

¶ 30. Irby argues that Ivey’s testimony that there were two sets of skid marks leading to the accident was contradicted by another officer at the scene. Contrary to Irby’s contention, the testimony by the other officer, Roger Robinson, does not favor the defendant. Robinson testified that he had observed skid marks at the scene trailing from the trajectory of Olivia Miller’s vehicle. This is consistent with Olivia Miller’s testimony that Irby never appeared to brake prior to impact. Such evidence that Irby failed to brake supports the jury’s finding that Irby was operating a motor vehicle negligently and while impaired.

¶ 31. Although conceding that he was observed to be in the wrong lane of traffic, Irby argues that it was Olivia Miller’s negligence, namely swerving into the wrong lane just as Irby swerved into the correct lane, that caused the accident. Irby further maintains that Olivia Miller was speeding in that she was traveling at 35-45 miles per hour in a 25-miles-per-hour zone. Moreover, Irby avers that he had no alcohol in his system and that the toxicologist’s analysis regarding other substances was speculative. More specifically, Irby highlights testimony from Dr. Labay regarding her “impairment statement” in the toxicology report. Dr. La-bay testified as follows:

Based on the concentration of Alprazo-lam and Hydrocodone found in this case, it can be stated with reasonable scientific certainty that if the individual showed signs of impairment — and examples of that we listed here include evidence of erratic driving, unusual demeanor — that these substances can be responsible for the production of that impairment, especially in the absence of a more competent cause.

Presumably, Irby takes issue with the words “substances can be responsible for the production of that impairment.”

¶ 32. This lack of evidence, according to Irby, means that the State failed to prove its requisite element of negligence for a conviction of DUI maiming; thus, the motion for judgment notwithstanding the verdict should have been granted. Lastly, Irby contends that the verdict “is so contrary to the overwhelming weight of the evidence that to allow [it] to stand would sanction an unconscionable injustice.” Taggart v. State, 957 So.2d 981, 987 (Miss.2007).

¶ 33. When viewing the evidence “in the light most favorable to the verdict,” Neal, 15 So.3d at 410, it is clear that the overwhelming weight of the evidence supports a guilty verdict. Olivia Miller testified that, as she drove over a hill, she saw Irby’s truck in her lane driving toward her at an alarming speed. Afraid of veering into the ditch on her right, Miller swerved left just as Irby overcorrected to his right. This resulted in an impact that was not quite head-on, but at an angle. Both Miller and Ivey testified that Irby had smelled of alcohol that day, and although Irby’s blood sample was not positive for the presence of alcohol, it did test positive for other substances. The forensic toxicologist, Dr. Labay, testified to significant levels of alprazolam and hydrocodone in Irby’s blood analysis, both of which, according to Dr. Labay, affect one’s ability to operate a motor vehicle. Finally, Olivia Miller testified at length regarding her husband’s permanent disability that was a direct result of the crash.

¶ 34. Finally, “after viewing the evidence in the light most favorable to the prosecution,” it is clear that “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Neal, 15 So.3d at 409 (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Accordingly, the trial judge did not abuse his discretion in denying Irby’s motion for a new trial and/or judgment notwithstanding the verdict.

CONCLUSION

¶ 35. The trial court did not err in admitting the blood-analysis evidence because Irby did not properly raise the validity-of-consent issue. Secondly, the defendant had the burden to proffer evidence of diminished capacity and failed to do so. Moreover, the trial court did not err in refusing to allow defense counsel to cross-examine Ivey in the jury’s presence as to whether he had intended to compel Irby to submit a blood sample, given that the State always had maintained that Irby had consented to the blood sample. Finally, the trial court did not abuse its discretion in denying Irby’s motion for a new trial and/or judgment notwithstanding the verdict.

¶ 36. Therefore, the Clarke County Circuit Court judgment of conviction for DUI maiming and sentence of twenty-five years in the custody of the Mississippi Department of Corrections entered against Thomas Irby is affirmed.

¶ 37. CONVICTION OF DUI MAIMING AND SENTENCE OF TWENTY-FIVE (25) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AS A HABITUAL OFFENDER, WITHOUT REDUCTION, SUSPENSION, PROBATION, PAROLE OR ANY OTHER TYPE EARLY RELEASE OR REDUCTION, AFFIRMED. APPELLANT SHALL PAY COURT COSTS OF $368.50, A FINE OF $1,000.00, PAY $1,000.00 AB FEE AND $3,000.00 RESTITUTION FOR JUSTIN MILLER.

WALLER, C.J., GRAVES, P.J., DICKINSON, RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ, CONCUR.

      . On motion for rehearing, Irby argues, for the first time, that his indictment is insufficient because it did not allege that the substances in his bloodstream "impaired [his] ability to operate a motor vehicle.” Miss. Code Ann. § 63-11-30(1) (Rev.2004). A party may not raise a new issue on motion for rehearing. McFarland v. Entergy Miss., Inc., 919 So.2d 894, 904 (Miss.2005) (citing Brewer v. State, 819 So.2d 1169, 1175 (Miss.2002)). Thus, this issue is procedurally barred.

      . To be clear, Irby's blood sample was not withdrawn subject to an arrest, nor was he in custody at the time it was withdrawn. The law enforcement officer who had been at the scene had Irby’s blood withdrawn based on Irby’s oral and written consent. "Schmerber v. California, [384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)], should put to rest any contention that taking a blood sample as a lawful incident to an arrest for driving while intoxicated violates either the Fourth, Fifth or Sixth Amendments to the U.S. Constitution." Penick v. State, 440 So.2d 547, 551 (Miss.1983).

      . Defense counsel at trial stated that it was unaware at the time the motion in limine was filed that Irby had given consent; thus, defense counsel erroneously believed the blood sample to have been taken pursuant to Section 63-11-7. The record reflects that, upon learning of this consent, the defense abandoned its argument concerning Section 63-11-7, and that was why the motion in limine was never taken up by the trial court.

      . Irby also argues that he suffered from diminished capacity and could not validly consent to giving a blood sample. Because the record is insufficient on this issue, we find that this contention is better suited for a motion for post-conviction relief. Wilson v. State, 21 So.3d 572, 580 (Miss.2009).


author: LEE, P.J.,

text:
    Karey WHITTINGTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00167-COA.
    Court of Appeals of Mississippi.
    April 13, 2010.
    Rehearing Denied Sept. 28, 2010.
    Certiorari Denied Dec. 9, 2010.

      George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   LEE, P.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. On September 17, 2004, a jury in the Pike County Circuit Court found Karey Whittington guilty of murder. Whitting-ton was sentenced to serve a term of life in the custody of the Mississippi Department of Corrections and ordered to pay a $10,000 fine. Whittington filed post-trial motions, which were denied. After receiving permission to file an out-of-time appeal, Whittington now appeals, asserting the following issues:' (1) he was prejudiced by hearsay statements; (2) he should have been allowed to use hearsay evidence to impeach the State’s hearsay evidence; (3) prejudice resulted from certain character evidence; (4) a manslaughter instruction was required; (5) a self-defense instruction was required; and (6) the verdict is not supported by the overwhelming weight of the evidence.

FACTS

¶ 2. During the evening of March 5, 1999, Jerry Frith was shot once in the chest and died shortly thereafter. The shooting occurred on a residential street in McComb, Mississippi, in an area referred to as Baertown. A witness, Leroy Carr, heard the shot and saw a red Chevrolet Camaro speeding away from where Frith’s body was found. Carr stated that two white men were in the Camaro.

¶ 3. The investigating authorities had no leads in Frith’s death until May 2003. In May 2003, Assistant Chief Perry Ashley of the McComb Police Department was notified that Robert LeBlanc had come forward with information regarding Frith’s murder. At the time LeBlanc was a trusty at the Pike County Jail. LeBlanc told Chief Ashley that Tony Temple stated that he was involved in Frith’s death. Temple also told LeBlanc that Whittington was involved.

¶ 4. Chief Ashley interviewed Temple in June 2003. Temple admitted that he owned a red Camaro and that he and Whittington were involved in Frith’s death. Temple stated that he and Whit-tington were looking for marijuana, so Temple pulled his car over next to two men. Discovering that these men did not have marijuana, Whittington told Temple to leave. As Temple was driving away, Whittington climbed halfway out the passenger door, pointed a shotgun toward the men, and shot at them. Temple told Chief Ashley that Whittington shot Frith using the .410-gauge shotgun, which he fired from inside Temple’s car. Temple stated that the shotgun belonged to his grandfather. Temple also told Chief Ashley that Dewayne Cash was present after the murder when Whittington bragged about shooting Frith. Temple and Whittington disposed of the shotgun. On cross-examination, Temple admitted that at some point that night, Whittington told Temple that Frith had a gun. Temple testified that he never saw a gun. According to Temple, Whittington at first said he fired the shotgun to scare the men, but later that night he said he fired at the men on purpose. Whittington purportedly told Temple that he shot at the men because he was tired of being “ripped off’ by drug dealers.

¶ 5. Cash testified that he was living with Whittington during the time of Frith’s murder. According to Cash, Whit-tington told him that he leaned out of the passenger-side window of the car and shot a man, while Temple drove the car away.

¶ 6. Drew Wallace was incarcerated in the Pike County Jail at the same time as Whittington. Whittington was in jail awaiting his trial for Frith’s murder. Wallace testified that Whittington said, concerning Frith’s murder, “I did it, they know I did it, but they’ll never find the weapon.”

¶ 7. Candy Berry, Whittington’s ex-wife, testified that Whittington told her Frith pulled a gun on him; and as he left the scene, he shot the shotgun in the air, not at Frith. Whittington told Berry that he had acted in self-defense.

¶ 8. Mario Molinari was also incarcerated in the Pike County Jail at the same time as Whittington. Molinari testified that Whittington told him about the circumstances surrounding Frith’s death and repeatedly bragged about the shooting to other inmates. Molinari testified that Whittington told him the authorities would never find the gun.

¶ 9. Whittington presented several witnesses from the Pike County Jail, namely Raymond Dangerfield; Michael Kennedy; and Karey Whittington, Sr., Whittington’s father. All three men stated that they never heard Whittington admit to killing anyone.

¶ 10. Amanda Brewer also testified for Whittington, stating that Berry wanted to make sure Whittington stayed in jail.

¶ 11. Dr. Steven Hayne, a forensic pathologist, testified that Frith had a gunshot wound located on his lower right chest, and that he died from massive internal bleeding. Dr. Hayne testified that the bullet, upon entering Frith, traveled downward at approximately thirty degrees, consistent with the shooter being more elevated than the victim.

¶ 12. Steve Byrd, the crime lab technician, testified that the projectile recovered from Frith’s body was consistent with a .410-gauge shotgun. Byrd also identified the piece of fiber material found in Frith’s body as being consistent with filler wadding, a substance that takes up space in a .410-gauge-shotgun slug casing.

DISCUSSION

I. HEARSAY STATEMENTS

¶ 13. In his first issue on appeal, Whit-tington argues that several hearsay statements prejudiced his defense. Under Mississippi Rule of Evidence 801(c), hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” A trial court’s decision to admit or exclude testimony is reviewed for abuse of discretion. McGriggs v. State, 987 So.2d 455, 457 (¶ 3) (Miss.Ct.App.2008). “Even if this Court finds an erroneous admission or exclusion of evidence, we will not reverse unless the error adversely affects a substantial right of a party.” Id.

¶ 14. First, during Chief Ashley’s testimony, the State asked him whether Temple had offered any information regarding Frith’s murder. Whittington’s trial counsel objected on the ground of hearsay. The State countered that this information was not being submitted to prove the truth of what Temple had told Chief Ashley, but to show the steps Chief Ashley took during the investigation. The State told the trial court that other witnesses, including Temple, would testify as to the truth of that statement. The trial court overruled the objection, but the Court instructed the jury that this particular statement was submitted to explain Chief Ashley’s actions in following up with the investigation. The trial court reiterated that the jury was not to take Temple’s statement to Chief Ashley as true. We find that these statements were not hearsay as they were submitted to show the actions Chief Ashley took during the investigation. See Myhand v. State, 981 So.2d 988, 991 (¶ 8) (Miss.Ct.App.2007); Ratliff v. State, 906 So.2d 133, 139 (¶ 21) (Miss.Ct.App.2004).

¶ 15. Chief Ashley also testified that he spoke with Cash the same day he interviewed Temple. The State asked Chief Ashley whether Cash’s information was consistent with Temple’s information. Chief Ashley started to answer that: “It was consistent with what Temple had already — ,” but Whittington’s trial counsel objected. Chief Ashley was not allowed to finish his statement. Although Chief Ashley did not finish his statement, we would still find this statement was submitted to show the actions Chief Ashley took during the investigation; thus, it was not hearsay.

¶ 16. Second, Detective Davis Haygood, with the Pike County Sheriffs Department, testified that LeBlanc first approached him with information about Frith’s murder. Detective Haygood reiterated that LeBlanc mentioned hearing about the murder from Temple. Whitting-ton’s trial counsel objected. The trial judge overruled the objection, finding that the information was used to show Detective Haygood’s decision to notify Chief Ashley of a potential break in the case. For the reasons stated above, we agree with the trial judge’s decision to admit this statement.

¶ 17. Last, Whittington contends that LeBlanc’s testimony, regarding how he remembered who Temple had told him was with Temple on the night of Frith’s death, was hearsay. During his first interview with Chief Ashley, LeBlanc told him the name of an individual who had been involved with Temple. The name of this other person was not Whittington. Le-Blanc testified that once he was back in his cell, he heard other inmates mention Whit-tington’s name, but not in connection with any crime. LeBlanc testified that when he heard Whittington’s name, he knew immediately that this was the name he had heard Temple say, not the name of the man LeBlanc originally named to Chief Ashley. After Whittington’s trial counsel objected to the testimony, the trial judge sustained the objection to the extent the testimony was offered to prove the truth of what was stated. However, the trial judge allowed the testimony to the extent it showed LeBlanc’s thought process in remembering Whittington’s name. We find that the trial judge did not abuse his discretion in doing so. This issue is without merit.

II. WITNESSES FOR THE DEFENSE

¶ 18. In his second issue on appeal, Whittington argues that the trial judge improperly excluded testimony from several of his witnesses, namely Dangerfield, Kennedy, and Karey, Sr. All three witnesses were in jail with Whittington at some point prior to his trial. The trial judge, citing hearsay, refused to let the witnesses testify in detail as to any conversation they may have had with Whittington concerning the murder. However, all three witnesses were allowed to testify using “yes” or “no” answers that they had never heard Whittington admit killing Frith.

¶ 19. As previously stated, hearsay “is a statement ... offered to prove the truth of the matter asserted.” M.R.E. 801(c). A statement made by Whittington to any of these witnesses would be hearsay. We can find no applicable hearsay exception which would allow the three witnesses to give detailed accounts of any conversation with Whittington concerning the murder. The trial judge was correct in limiting the answers of these witnesses.

¶ 20. Whittington also contends that the trial judge erred in excluding testimony about a purported conversation between Berry and Brewer. During cross-examination, Berry testified that she had never spoken with Brewer about wanting to keep Whittington in jail. Whitting-ton later called Brewer to the stand to testify that the two women had spoken. Brewer testified that Berry said she hoped Whittington would have to stay in jail. Whittington wanted Brewer to testify in further detail about a conversation the two purportedly had in the past, but the trial judge would not allow it, citing hearsay concerns. The trial judge found that Whittington “laid the predicate for impeachment and [had] asked the question that would impeach the witness, that there was a conversation.” The trial judge did not abuse his discretion in limiting the extent of Brewer’s testimony.

¶ 21. This issue is without merit.

III. CHARACTER EVIDENCE

¶ 22. In his third issue on appeal, Whittington argues that it was prejudice for the jury to hear that prior to his arrest for murder, he was out on bond after being charged with child abuse. On cross-examination of Berry, Whittington attempted to show that Berry was angry with him over their custody agreement and that she was trying to find a crime with which to charge him. On redirect, the State asked Berry why she initially came to the District Attorney’s Office. Berry replied as follows: “I come [sic] about child abuse and see if I could have his bond revoked to keep — .” The trial judge interrupted Berry and excused the jury. After a discussion, the trial judge brought the jury back in and informed the jurors that they were to disregard the previous question and answer. The trial judge asked each juror to raise his/her hand in an affirmative response. The State then asked if the reason Berry came to the District Attorney’s Office was in regard to her children. Berry answered in the affirmative. There were no further questions. We cannot find that the trial judge abused his discretion by asking the jury to disregard this particular question and answer. This issue is without merit.

IV. MANSLAUGHTER INSTRUCTION

¶ 23. In his fourth issue on appeal, Whittington argues that the trial judge should have given a manslaughter instruction for the jury to consider. The trial court enjoys considerable discretion regarding the form and substance of jury instructions. Clemons v. State, 952 So.2d 314, 317 (¶ 8) (Miss.Ct.App.2007). The defendant is entitled to have instructions given that present his theory of the case unless an instruction “incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Livingston v. State, 943 So.2d 66, 71 (¶ 14) (Miss.Ct.App.2006).

¶24. Whittington argues that the evidence at best showed he acted impulsively or in the heat of passion. Manslaughter is defined as “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense....” Miss.Code Ann. § 97-3-35 (Rev.2006). “Heat of passion” has been defined as:

A state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.

Graham v. State, 582 So.2d 1014, 1017 (Miss.1991) (quoting Mullins v. State, 493 So.2d 971, 974 (Miss.1986)).

¶ 25. A defendant charged with murder “is not entitled to a manslaughter instruction where the record contains no evidence from which the jury could determine that the killing resulted from heat-of-passion and not the result of malice.” Dobbins v. State, 766 So.2d 29, 33 (¶ 11) (Miss.Ct.App.2000). We find the record lacks evidence such that a reasonable juror could find Whittington guilty of manslaughter. Whittington failed to produce any evidence to show that he was in a state of violent or uncontrolled rage or that he had been provoked. Although Whittington stated at one point to Temple that he had fired the shotgun into the air to scare the men, he later admitted to Temple and Cash that he had fired at Frith on purpose because he was tired of getting “ripped off’ by drug dealers. The trial judge found that there was no evidence to warrant a manslaughter instruction. We agree. This issue is without merit.

V. SELF-DEFENSE INSTRUCTION

¶ 26. In his fifth issue on appeal, Whittington argues that the trial judge erred in refusing his self-defense instruction. Mississippi Code Annotated section 97—3—15(l)(f) (Rev.2006) states that the killing of a human being is justified “[w]hen committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished.”

¶ 27. The trial judge found that there was no evidence to warrant a self-defense instruction. Other than Berry’s testimony that Whittington told her Frith had a gun, there was no evidence that Frith was holding a gun. There was no evidence that Frith threatened to use a gun against Whittington. We find that there was no testimony introduced that Whittington thought he was in imminent danger. This issue is without merit.

VI. OVERWHELMING WEIGHT OF THE EVIDENCE

¶ 28. In his final issue on appeal, Whittington argues that the verdict is against the overwhelming weight of the evidence. ‘When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). When reviewing the weight of the evidence, this Court sits as a thirteenth juror. Id.

¶ 29. Whittington contends that any evidence supporting the guilty verdict is based upon unreliable testimony. Although most of the witnesses for the prosecution and for the defense were criminals, it was for the jury to assess their credibility. Temple testified that he saw Whitting-ton climb out the passenger-side window and fire the shotgun toward the men. Dr. Hayne testified that the trajectory of the bullet was consistent with the shooter being more elevated than the victim.

¶ 30. Cash testified that he saw Whit-tington and Temple after the murder. Whittington told Cash that he shot Frith on purpose because he was tired of getting ripped off by drug dealers. Several witnesses, who were in jail with Whittington, heard him admit to Frith’s murder. We cannot find that allowing the verdict to stand would sanction an unconscionable injustice. This issue is without merit.

¶ 31. THE JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A $10,000 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR.