author: ROBERTS, J., ISHEE, J.,

text:
    SMITH COUNTY SCHOOL DISTRICT, Appellant v. Laura Shontelle BARNES, Appellee.
    No. 2010-CA-00681-COA.
    Court of Appeals of Mississippi.
    Sept. 20, 2011.
    Rehearing Denied Jan. 10, 2012.
    David Garner, attorney for appellant.
    Eugene Coursey Tullos, Raleigh, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. Laura Shontelle Barnes was employed as an elementary school teacher with the Taylorsville Elementary School in the Smith County School District (District) for eleven years. On May 12, 2009, Barnes’s employment was terminated after she violated the District’s drug and alcohol policy by refusing to submit to a drug test when requested. The Smith County School Board (Board) held a hearing on July 17, 2009, and after hearing evidence from Barnes and the District, the Board affirmed the District’s Superintendent of Education’s decision to terminate Barnes’s employment. Barnes then appealed the Board’s decision to the Smith County Chancery Court. On March 10, 2010, the chancery court reversed the Board’s decision and reinstated Barnes’s employment at Taylorsville Elementary School. Feeling aggrieved, the Board now appeals the chancery court’s reversal of its decision.

FACTS AND PROCEDURAL HISTORY

¶ 2. This appeal stems from an incident that occurred on May 6-7, 2009, at the Taylorsville Elementary School. On May 7, 2009, Yvonne Dees, Taylorsville Elementary School principal, received reports from other teachers that on May 6, 2009, Barnes, a first-grade teacher at the school, was lying on the classroom floor with her eyes closed and the lights off. The children were still in the classroom at this time, and several of the students informed other teachers that Barnes “fell out.” The teachers approached Barnes, who was still lying on the floor, and she informed them that she was in severe pain due to an ovarian cyst. The other teachers assisted her by watching the children and helped her sign out of work for the day. She left work at noon that day, and she testified she took some pain medication that had been prescribed to her for a previous dental procedure.

¶ 3. After hearing the reports of Barnes’s behavior from the teachers, Dees called Jeff Duvall, Taylorsville Attendance Center principal, to discuss the incident with him. Duvall then called Priscilla Ma-gee, the District’s assistant superintendent, to determine the procedure for addressing the incident. Based on Duvall’s call to Assistant Superintendent Magee, the decision was made to request that Barnes submit to a drug test pursuant to the District’s drug and alcohol policy.

¶ 4. When Barnes returned to work on May 7, 2009, she was summoned to Dees’s office and was told that she needed to accompany them to a facility in Magee, Mississippi, to have a drug test performed. Barnes, although visibly upset, initially agreed to take the test. Barnes, Dees, and the Taylorsville assistant superintendent Magee proceeded to the facility located in Magee. At the school board hearing, Dees testified that shortly after they began driving to the facility, Barnes stated she wished to resign. They pulled the car over and called Duvall who informed Dees that she should draft a letter of resignation for Barnes to sign. Before signing the letter, Barnes changed her mind and, once again, agreed to take the drug test. They resumed traveling to the testing facility. However, en route to the testing facility, she received a call from her attorney advising her not to take the test. At 10:38 a.m., Barnes signed a statement indicating that she was now refusing to take the test. When she arrived back at the school, and after she had made the decision to refuse to take the drug test, Barnes testified that Duvall told her that if she did not take the drug test, he would suspend her for one day. Barnes left the school that morning, but she returned sometime later that afternoon after she had received advice from her father to take the test. When she told Dees that she would submit to the drug test, Dees informed her that it was too late to take the test since she had already refused the test earlier. Still later on the same day, Barnes went to a facility in Bay Springs, Mississippi, and took a drug test. Although the results of the drug test were not presented by Barnes to the Board, Barnes testified that she tested positive for opiates and was on Xanax and Ambien. She claimed that she had prescriptions for all of the controlled substances she was taking.

¶ 5. In a letter dated May 12, 2009, Barnes received notice from Smith County Superintendent of Education Jimmy Hancock stating that her employment was terminated because of her refusal “to submit to a drug test, neglect of duty, and insubordination.” The letter also informed her that she was entitled to a hearing before the Board on the matter. Barnes requested a hearing, and one was set for July 17, 2009. At the hearing, Dees, Duvall, Hancock, and Barnes all testified as to the events leading up to and culminating in Barnes’s termination. Further, written statements from six teachers that witnessed the incident on May 6, 2009, were presented into evidence. In her written statement, Therese Pittman described the incident as follows:

I went to Mrs. Barnes[’s] door to get the students for an activity. The lights were out in the room and the students were running all around the room. A little girl came up to me and said “our teacher has fell out.” I turned and saw Ms. Rhodes coming toward me. She said Mrs. Barnes is hurting so she is lying down. I walked into the room and over to where she was lying on the floor. I looked down at her and her eyes were closed, I looked to make sure she was breathing. I turned and said loudly, to see if Mrs. Barnes would respond, [“]Okay girls line up.[”] I left the room with the girls and Mrs. Barnes never got up.

Janice Dozier, another teacher at the school, stated that she saw Barnes walking very slowly down the hall on the morning of May 6, 2009. When Dozier asked what was wrong, Barnes explained that her ovaries were hurting. Dozier further explained that after lunch, one of Barnes’s students came into her room and said that Barnes needed her. When she arrived in Barnes’s room, she saw Barnes “lying on the carpet crying with her side hurting.” In the statement submitted by fellow teacher Melissa Jackson, she states that “Mrs. Barnes was conscience [sic] and able to carry on a conversation the entire time.” Barnes did not present the Board with a copy of any prescriptions for her medications nor any statements from her treating physicians who had prescribed the medications she took. Likewise, she did not present any corroborating medical documentation or testimony supporting her claim that she was in severe pain from ovarian cysts.

¶ 6. Based on the evidence presented, the Board unanimously affirmed the District’s decision to terminate Barnes’s employment. The Board found that Barnes was given proper notice and a hearing on the matter, as well as the District’s written reasons for her dismissal. It further found that her dismissal was a proper employment decision that was supported by substantial evidence, was not arbitrary or capricious, and did not violate Barnes’s constitutional or statutory rights.

¶ 7. Barnes then appealed the Board’s decision to the chancery court. At a hearing held on March 10, 2010, the chancellor reinstated Barnes’s employment. The chancellor found that the Board’s decision was arbitrary or capricious because the Board strictly held Barnes to the drug and alcohol policy but failed to hold itself to the same standard. Although Barnes made no claim at the hearing before the Board that the assistant superintendent was without authority to act in the superintendent’s absence when giving Duvall permission to request that Barnes take a drug test. But the chancellor stated that the record did not show, as required by the District’s drug and alcohol policy, that the superintendent was the one who made the decision as to whether there was reasonable suspicion sufficient to request Barnes take a drug test or that he had appointed someone to act on his behalf.

¶ 8. Feeling aggrieved by the chancellor’s decision to reinstate Barnes, the District now appeals and raises the following issue:

The chancery court erred in reversing the Board’s decision because the Board’s decision was supported by substantial evidence; was not arbitrary or capricious; nor was it in violation of some statutory or constitutional right of Barnes.

STANDARD OF REVIEW

¶ 9. It should first be noted that “[t]his Court assigns great deference to decisions of administrative agencies.” St. Dominic-Jackson Mem’l Hosp. v. Miss. State Dep’t of Health, 910 So.2d 1077, 1081 (¶ 11) (Miss.2005) (citing Delta Reg’l Med. Ctr. v. Miss. State Dep’t of Health, 759 So.2d 1174, 1176 (Miss.1999)). “When this Court reviews a decision by a chancery or circuit court concerning an agency action, we apply the same standard of review that the lower courts are bound to follow.” Smith County Sch. Dist. v. Campbell, 18 So.3d 335, 336 (¶8) (Miss.Ct.App.2009) (citing Miss. Sierra Club, Inc. v. Miss. Dep’t of Envtl. Quality, 819 So.2d 515, 519 (¶ 15) (Miss.2005)). In this case, we apply the same standard of review that the chancery court applied, which is provided by statute pursuant to Mississippi Code Annotated section 37-9-113(3)(a)-(c) (Rev. 2001) as follows:

The scope of review of the chancery court in such cases shall be limited to a review of the record made before the school board or hearing officer to determine if the action of the school board is unlawful for the reason that it was:
(a) Not supported by any substantial evidence;
(b) Arbitrary or capricious; or
(c) In violation of some statutory or constitutional right of the employee.

Therefore, our review is limited by this standard.

ANALYSIS

¶ 10. The Board argues that its decision was neither arbitrary or capricious nor in violation of Barnes’s statutory or constitutional rights; instead, it was based on substantial evidence. The Board submits that Barnes’s behavior was sufficient to cause the administrators to have reasonable suspicion that Barnes might have been under the influence of drugs on May 6, 2009, while in the classroom supervising her students. Based on the reasonable suspicion, the administrators were permitted by the District’s assistant superintendent to request that Barnes take a drug test pursuant to the drug and alcohol policy of which Barnes was previously aware. The Board further argues that Barnes’s refusal to submit to the drug test warranted discipline, and the termination of her employment was an acceptable disciplinary action under the drug and alcohol policy in place. The relevant portions of the District’s drug and alcohol policy provides:

4a. Reasonable suspicion is defined under this policy as the belief by Smith County School District that an employee is using or has used drugs or alcohol in violation of Smith County School District’s policy. Reasonable suspicion may be based upon, among other things:
I. Observable phenomena, such as direct observation of drug use and/or the physical symptoms or manifestations of being under the influence of a drug or alcohol;
II. Abnormal conduct or erratic behavior while at work, absenteeism, tardiness, or deterioration in work perfomance;
b. If there is reasonable suspicion that an employee is using or had used drugs or consumed alcohol in violation of Smith County School District’s policy, that employee will be required to submit to a drug and/or alcohol test. The superintendent (or in his or her absence/,] an appointed replacement) must approve in advance all reasonable suspicion testing. If the test result is confirmed positive for drugs or alcohol in violation of Smith County School District’s drug and alcohol policy, the employee will be subject to immediate termination of his or her employment with the District.
5. Any employee who refuses to take a drug and alcohol test will be subject to discipline, up to and including immediate termination of employment.

(Emphasis added).

¶ 11. When reinstating Barnes’s employment with Taylorsville Elementary School, the chancellor found that the Board’s decision was arbitrary or capricious under Mississippi Code Annotated section 87 — 9—113(8)(b). At the hearing, the chancellor stated that:

The [ejourt believes that because of the drug and alcohol policy that the school district was correct in asking for the drug test.... The [cjourt believes that the actions upon observing a teacher coming in and lying on the floor, with the lights off, would appear to be abnormal behavior. The [cjourt believes that after looking at the entire record concerning the allegations of pain or sickness on behalf of Ms. Barnes, that her actions would not be abnormal based on her pain and discomfit [sic].

Further, the chancellor found that Barnes was strictly held to the drug and alcohol policy, but the District did not hold itself to the same standard. The chancellor stated that:

The [cjourt believes that Ms. Barnes was wrong when she did not comply with taking the drug test. And the [cjourt believes that the superintendent of education of the school district was wrong when they did not have something in the record showing that in the absence of Mr. Hancock, superintendent of education, that he had appointed a replacement to approve the testing of Ms. Barnes, or some other person whoever that might be, when Mr. Hancock was unavailable and could not make the [reasonable-suspicion] determination.

Because the District did not follow the drug and alcohol policy when it came to obtaining approval from the superintendent and Barnes’s later willingness to comply with the drug-test request, the chancellor found that the Board’s decision was arbitrary and capricious. The Mississippi Supreme Court has defined arbitrary and capricious as follows:

■“Arbitrary” means fixed or done capriciously or at pleasure. An act is arbitrary when it is done without adequately determining principle; not done according to reason or judgment, but depending upon the will alone, — absolute in power, tyrannical, despotic, non-rational, — implying either a lack of understanding of or a disregard for the fundamental nature of things.
“Capricious” means freakish, fickle, or arbitrary. An act is capricious when it is done without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles.

St. Dominic-Jackson Mem’l Hosp., 910 So.2d at 1082 (¶ 15) (Miss.2005) (citing Attala County Board of Supervisors v. Miss. State Dep’t of Health, 867 So.2d 1019, 1023-24 (Miss.2004)).

¶ 12. The Mississippi Supreme Court has previously noted that, “[w]hile it is true that there are many punishments that would seem less harsh or more appropriate in this case, we must recognize that the law commits this entire matter to the discretion of the school board.” Covington County Sch. Dist. v. G.W., 767 So.2d 187, 192 (¶ 12) (Miss.2000) (citing Clinton Mun. Separate Sch. Dist. v. Byrd, 477 So.2d 237, 242 (Miss.1985)). With the standard of review and our deference to administrative agency decisions in mind, we find that chancellor erred in holding that the Board’s decision was arbitrary and capricious. The evidence in the record before us demonstrates that the Board’s decision was not arbitrary in that it was done according to reason or judgment. The Board relied on the clear language in the District’s drug and alcohol testing policy when affirming the termination of Barnes’s employment. As a long-term employee with the District, Barnes was aware of the policy in place for drug and alcohol testing. She knew that she could be requested to take a drug test if reasonable suspicion was found to request one; she also knew that termination of employment was a possible disciplinary action as a result of a positive drug test or a refusal to take a drug test. The facts surrounding the incident are not in any significant dispute. The Board requested Barnes take the drug test based on abnormal behavior displayed at work during school hours; she refused to take the test. Through its drug and alcohol policy, the District had the prerogative to choose the appropriate punishment, including termination of employment, for Barnes’s refusal to take the drug test when initially requested. The District’s decision to enforce its drug and alcohol policy as it is written is not arbitrary or capricious.

¶ 13. We reverse and render judgment in this case to reinstate the Board’s decision.

¶ 14. THE JUDGMENT OF THE CHANCERY COURT OF SMITH COUNTY IS REVERSED AND RENDERED TO REINSTATE THE BOARD’S DECISION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON AND MAXWELL, JJ., CONCUR. ISHEE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MYERS, BARNES AND RUSSELL, JJ.

ISHEE, J.,

dissenting:

¶ 15. I must respectfully dissent from the majority. Like the Smith County School Board in its original decision, the majority fails to consider the totality of the circumstances surrounding Laura Shon-telle Barnes’s alleged refusal to submit to a drug test. Barnes changed her mind about taking the drug test several times that day. However, she ultimately agreed to take the test, but the Taylorsville Elementary School Principal, Yvonne Dees, refused to allow her to take the drug test. By singling out Barnes and making the decision to terminate her based only on her initial refusal to take the test, the majority is improperly cherry-picking a single event, while ignoring Barnes’s ultimate decision to take the test voluntarily.

¶ 16. It is undisputed that Barnes’s employment was terminated solely on the basis that she refused to take a drug test. Therefore, our limited inquiry is whether substantial evidence exists to support the Board’s assertions that Barnes did, in fact, refuse to take the test. Substantial evidence is that which is more than a “mere scintilla” of evidence, or “evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred.” Miss. Dep’t of Human Servs. v. McNeel, 869 So.2d 1013, 1018 (¶ 19) (Miss.2004) (citation omitted). Where there is substantial evidence, “an agency’s fact finding must be allowed to stand ‘even though there might be room for disagreement on that issue.’ ” Miss. Pub. Serv. Comm’n v. Merchants Truck Line, Inc., 598 So.2d 778, 782 (Miss.1992) (quoting Babcock & Wilcox v. Roby, 246 Miss. 160, 165, 150 So.2d 129, 130 (1963)).

¶ 17. The majority notes that Barnes did not proffer the results of her drug test or a doctor’s prescription to substantiate her claims during the termination hearing. However, based on the Smith County School District’s charge that she refused to take the test, any evidence of her failing or passing the test or of having a justifiable excuse for the medication was not necessary to prove her case. The record shows that Barnes demonstrated her willingness to comply with the District’s drug policy within a reasonable amount of time from her initial refusal. Yet the school’s principal rejected her request. Notwithstanding that rejection, Barnes voluntarily submitted to a drug test that same afternoon after being counseled by the assistant superintendent, Priscilla Magee, to take one on her own.

¶ 18. The District’s policy and the applicable statutes are void of any language mandating a time frame in which the employee must be tested. Nonetheless, common sense prescribes that a drug test should be administered within a reasonable amount of time after an alleged violation of the rules has been reported in order to obtain an accurate result of any drugs in an employee’s system. The policy also does not state that an employee is prohibited from changing his or her mind within a reasonable amount of time after a refusal to submit to a drug test. The facts reveal that Barnes initially agreed to take the drug test, refused, and then ultimately agreed again. All of this occurred during regular work hours on the same day.

¶ 19. At the employment-termination hearing, Barnes stated that she had never before acted like she did on May 6, 2009, when she lay down on the floor in her classroom. In fact, Barnes had no history of any problems with the school, nor did she have any blemishes on her record. She had been an exemplary teacher for almost twenty years. The “abnormal” behavior complained of consisted of Barnes lying down on the floor in her classroom while students were present. Barnes explained that she was ill and in intense pain, and she only lay down after she was unable to sit. She also immediately requested assistance from other teachers.

¶ 20. From all indications, this was a one-time occurrence, with a reasonable explanation. Barnes was aware of the school’s drug policy, and she admitted she had taken a prescription drug to ease her pain after she went home on May 6, 2009. She also admitted that she refused the drug test the next day when she returned to school, although she later changed her mind and voluntarily submitted to a drug test that same day.

¶ 21. Imposing this harsh judgment of employment termination is akin to a death sentence, and this would prevent her from obtaining any other job within a school district, and likely any other state employment. Because the Board has the right to determine the appropriate punishment for a violation of its policy, I decline to make a determination here regarding the severity of her punishment. Rather, my concern lies with the Board’s decision to terminate Barnes based solely on her “refusal” to submit to a drug test, as she was acting on the advice of counsel.

¶22. Moreover, Barnes received conflicting advice as to whether or not to take the drug test. While traveling to the testing facility, she contacted a lawyer who told her to refuse the test. She also relied on a statement made by the Taylorsville Attendance Center Principal, Jeff Duvall, that the penalty for not taking the drug test would only be a one-day suspension, despite the District’s written policy that an employee may be fired for refusing a drug test. Barnes then received advice from her father and Magee to take the drug test. In the end, Barnes took the drug test.

¶ 23. As such, it would appear that Barnes complied with the policy, despite her reliance on incorrect information from a school official regarding her potential punishment. If we are to hold employees to such strict application of the policy, then it is reasonable to require the same of the administrators. Thus, after considering the full record, I would affirm the chancery court’s reversal of the Board’s decision to terminate Barnes and reinstate her employment, although my reasons for doing so are different from those of the chancery court.

MYERS, BARNES AND RUSSELL, JJ„ JOIN THIS OPINION.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Dell PALMER, Palmer Holdings, LLC d/b/a Realty Executives and Tanja Adams, Appellants v. Tammie R. PITTMAN, Jacob S. Pittman and Shawn M. Pittman, Appellees.
    No. 2009-CA-01864-COA.
    Court of Appeals of Mississippi.
    Nov. 8, 2011.
    Rehearing Denied March 20, 2012.
    Certiorari Denied June 14, 2012.

      C. Louis Clifford IV, Roger L. McGehee Jr., Daniel D. Ware, Magee, attorneys for appellants.
    Donald W. Boykin, Jackson, attorney for appellees.
    Before GRIFFIS, P.J., MYERS and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In May 2007, Tammie R. Pittman, Jacob S. Pittman, and Shawn M. Pittman (the Pittmans) entered into a contract (the contract) for the purchase of a home in Florence, Mississippi. The contract listed Realty Executives as the Pittmans’ exclusive real-estate agent. Included in the contract was an arbitration agreement requiring the Pittmans and the seller of the property, Sean Farnham, to enter into arbitration in the event that any disputes arose out of the contract. The arbitration provision made no mention of Realty Executives or any other agent. In May 2009, the Pittmans filed suit in the Hinds County Circuit Court, First Judicial District, against Realty Executives, its authorized agent Tanja Adams, and its parent company (collectively Realty), claiming that Realty failed to disclose to the Pittmans certain problems with the home and that the Pitt-mans detrimentally relied on Realty with regard to the purchase of the home. Thereafter, Realty filed a motion to dismiss the Pittmans’ action or, in the alternative, compel arbitration pursuant to the contract. The circuit court denied the motion on the ground that the arbitration provision in the contract specifically stated that it only applied to the Pittmans and Farnham. Aggrieved, Realty appeals, claiming the circuit court erred in its denial of the motion to dismiss or compel arbitration. Finding no error, we affirm the circuit court’s judgment.

STATEMENT OF FACTS

¶ 2. In 2007, the Pittmans enlisted Realty to assist them in their search for a home. Adams, as Realty’s agent, showed the Pittmans several homes in their desired area, including the home in question. On or about May 15, 2007, Adams helped facilitate the purchase of the home from Farnham through the contract. The arbitration provision in the contract provided that all disputes pertaining to the contract and arising between the Pittmans and Farnham would be mandatorily subjected to arbitration.

¶3. After acquiring title to the home, the Pittmans claim to have discovered that the home had previously been flooded and, as a result, is severely damaged. They also claim to have learned that the home is located in a Special Flood Hazard Area and that the home continues to be susceptible to flooding. The Pittmans assert that Realty had a legal duty to disclose this information to them before they purchased the home and that failure to do so resulted in the Pittmans’ detrimental reliance on Realty in buying the home.

¶ 4. The Pittmans filed suit against Realty in circuit court on May 15, 2009, claiming fraud, negligence or gross negligence, and constructive fraud; they requested rescission of the contract, damages, and fees. On July 22, 2009, Realty filed a motion to dismiss or to enforce arbitration. Therein, Realty claimed that because the Pittmans had failed to exhaust their administrative remedies by not first attempting arbitration, the case should be dismissed. Alternatively, Realty asserted that the circuit court should enforce arbitration of the matter pursuant to the arbitration agreement in the contract. On October 29, 2009, the circuit court entered an order denying Realty’s motions on the ground that Realty was not subject to the arbitration provision because the terms of the arbitration agreement only apply to the Pittmans and Farnham.

¶ 5. Realty timely filed this interlocutory appeal arguing that the circuit court erred in denying its motion. We disagree with Realty’s assertions of error and affirm the circuit court’s judgment.

DISCUSSION

¶ 6. It is well settled that we review questions of law de novo. Century 21 Maselle and Assocs., Inc. v. Smith, 965 So.2d 1031, 1035 (¶ 6) (Miss.2007) (citations omitted). Additionally, the grant or denial of a motion to compel arbitration is reviewed de novo. Simmons Housing, Inc. v. Shelton ex rel. Shelton, 36 So.3d 1283, 1286 (¶ 8) (Miss.2010) (citations omitted).

¶ 7. Here, Realty correctly notes that there exists “a presumption in favor of arbitration.” Qualcomm Inc. v. Am. Wireless License Group, LLC, 980 So.2d 261, 269 (¶ 15) (Miss.2007) (citation omitted). However, Realty also acknowledges that “a party generally is not required to arbitrate disputes unless that party previously agreed to do so.” Sim mons Housing, 36 So.3d at 1286 (¶ 9) (citations omitted). As such, we must look to the arbitration agreement itself to determine if the circuit court correctly held that arbitration is not required here because the Pittmans never agreed to arbitrate disputes involving Realty.

¶ 8. The arbitration provision reads, in pertinent part, as follows:

Except for issues relating to title and ownership, environmental liability, and zoning, which shall not be subject to the requirements of this paragraph, in the event of any other dispute between Buyer and Seller arising out of this contract, the parties agree that any controversy or claim between them arising out of or relating to this Contract shall be settled exclusively by arbitration.

Nowhere in the arbitration provision does it mention Realty or any party other than the Pittmans, as the “Buyer,” and Farn-ham, as the “Seller.” As such, on its face, the arbitration provision does not apply to Realty, and the Pittmans are not required to arbitrate their dispute with Realty by arbitration.

¶ 9. Realty, however, argues that as a matter of law, the Pittmans should be required to arbitrate the matter. Realty cites B.C. Rogers Poultry, Inc. v. Wedgeworth, 911 So.2d 483, 491-92 (¶ 30) (Miss. 2005) as supporting authority for the principle that a non-signatory to a contract may have standing to compel arbitration if there is a close legal relationship with a signatory to the contract. In support thereof, Realty claims that it was a “disclosed dual agent” of both the Pittmans and Farnham, thus solidifying the “close legal relationship” between Realty and the signatories to the contract.

¶ 10. Realty references a document it signed along with Farnham on May 1, 2007, (Document One) that defined it as a “Disclosed Dual Agent.” The Pittmans did not sign Document One. Additionally, Document One clearly states in all capital letters: “THIS IS NOT A CONTRACT. THIS IS AN ACKNOWLEDGMENT OF DISCLOSURE.” Furthermore, Realty later signed a document with identical boilerplate language as Document One on May 16, 2007, (Document Two) with the Pitt-mans. However, Document Two listed Realty only as the “Buyer’s or Tenants [sic] Agent.” Document Two also contained the same language as that in Document One explaining that Document Two was not binding, but merely a disclosure.

¶ 11. It is clear that Document One and Document Two are not legally binding contracts. However, assuming ar-guendo they have legal merit, for Realty to have been a disclosed dual agent, it would have had to have received consent and acknowledgment from both Farnham and the Pittmans that Realty was representing both parties. However, Realty failed to disclose its agency with Farnham to the Pittmans. Furthermore, Realty essentially overrode any possible classification as a disclosed dual agent by signing Document Two with the Pittmans classifying Realty as the Pittmans’ exclusive “Buyer’s agent.” Notwithstanding the information contained in Document One and Document Two, the contract itself explicitly states: “Realty Executives is the agent of the Buyer exclusively.” Finally, at the bottom of the first page of the contract is a provision for “Attachments and Special Provisions.” Therein is a section, among others, listed as “Dual Agency Confirmation,” with designated spaces for the initials of buyers and sellers. The Dual Agency Confirmation section is blank, with no indication whatsoever that Realty was to be a disclosed dual agent. As such, we do not find Realty’s arguments that state law compels arbitration and that it was a disclosed dual agent to be persuasive.

¶ 12. Realty also claims it should be considered a third-party beneficiary to the contract. Realty states that it directly benefitted from the contract; therefore,.it was a “party” to the agreement and should be considered a party to the arbitration agreement. However, after reviewing the record and the contract, we cannot conclude that Realty should be considered a party to the arbitration agreement. Realty and the Pittmans had ample opportunity to provide language in the contract to their liking. In fact, Realty was specifically listed in the contract as the Pittmans’ agent, and the terms of the contract granted Realty 5% of the total sale price of the home. As such, Realty could have easily revised the terms of the contract to include themselves in the arbitration provision. However, Realty and the Pittmans chose not to include Realty in the arbitration agreement. As such, Realty cannot now claim that although it had the option to include itself in the arbitration provision and chose not to, that it should now be an applicable party. Realty’s role in the contract is clear. There is no ambiguity in the contract’s language, nor is there any case law persuading us that Realty was unfairly excluded from the arbitration provision. We find Realty’s arguments without merit and affirm the circuit court’s judgment.

¶ 13. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: ROBERTS, J.,

text:
    Ashley HANKINS, Appellant v. CITY OF CLEVELAND, Mississippi, Delta State University and Carl Towles, Appellees.
    No. 2010-CA-01491-COA.
    Court of Appeals of Mississippi.
    Nov. 8, 2011.
    Rehearing Denied March 27, 2012.
    Certiorari Denied June 14, 2012.

      R. Brittain Virden, Greenville, attorney for appellant.
    Daniel Judson Griffith, Cleveland, James T. Metz, attorneys for appellees.

      Before LEE, C.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. After taking a final exam, Ashley Hankins was crossing Fifth Avenue on the campus of Delta State University (DSU) in the City of Cleveland, Mississippi (City), when she was struck by a vehicle driven by Carl Towles. Hankins suffered multiple injuries as a result of the accident. On February 25, 2009, Hankins filed a corm plaint against the City, DSU, and Towles in the Bolivar County Circuit Court to recover for her injuries. However, on August 20, 2010, the circuit court granted the City’s and DSU’s motions for summary judgment. The circuit court certified both summary judgments as final under Mississippi Rule of Civil Procedure Rule 54(b). It is from the circuit court’s grant of summary judgment that Hankins now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. At approximately 5:00 p.m. on December 3, 2007, Hankins, a student at DSU, was walking across the Fifth Avenue crosswalk when she was hit by a vehicle driven by Towles; Hankins suffered several injuries that required medical treatment. In her complaint filed on February 25, 2009, Hankins alleges that the City and DSU were responsible for the accident because they were negligent and failed to “maintain proper roadway conditions, design, maintenance, warnings, proper safety practices, proper traffic control devices[,] and signage” at the crosswalk. Specifically, Hankins argues that the City and DSU “failed to exercise and perform their duties pursuant to Mississippi law and further committed acts of negligence per se and general acts of negligence” by not “properly construct[ing] and maintaining] a roadway in accordance with the Manual on Uniform Traffic Control Devices, Mississippi law[,] and generally accepted safety practice!.]” Hankins further alleged that they failed to “properly design, construct, maintain!,] and repair crosswalks for pedestrians such as [Hankins].” She also stated in her complaint that: they neglected “to design, install, maintain!,] and repair signage and proper warnings to motorists of the presence of pedestrians and crosswalks!,]” and they did not “install and maintain adequate lighting at a highly traveled crosswalk and areas where pedestrians are known to travel and come in contact with motor vehicles!.]”

¶ 3. In response to Hankins’s complaint, DSU filed a motion to dismiss on March 20, 2009, and its answer on April 29, 2009; the City filed its answer on March 31, 2009. Additionally on March 31, 2009, the circuit court entered its order setting the discovery deadlines in this case to be completed “on or before one-hundred and twenty (120) days after service of an answer by the applicable party.” On June 18, 2009, during the discovery process, the City filed a motion to compel Hankins to respond or admit to certain matters that, in its opinion, she had previously failed to answer adequately. In an order entered on September 10, 2009, the circuit court ordered Hankins to respond to the requests made in the City’s motion. Over a month later, on October 14, 2009, Hankins filed a motion to compel discovery against the City after receiving what she deemed to be less than compliant responses to discovery requests. The circuit court granted Hankins’s motion to compel on January 29, 2010.

¶ 4. Then, on March 19, 2010, DSU filed its motion to dismiss and motion for summary judgment. Hankins filed a motion to compel DSU on June 1, 2010. Following DSU’s lead, the City subsequently filed a motion for summary judgment on June 16, 2010. At a hearing on August 20, 2010, the circuit court granted both DSU’s and the City’s motions for summary judgment on the grounds that both were immune under the Mississippi Tort Claims Act (MTCA). On August 31, 2010, and after finding “that no just reason exists to delay appeal of this matter[,]” the circuit court filed its certification of final judgment pursuant to Mississippi Rule of Civil Procedure Rule 54(b). On that day, the circuit court’s grant of summary judgment in favor of DSU and the City became final judgments for appeal purposes.

¶ 5. Feeling aggrieved by the circuit court’s grant of summary judgment, Han-kins now appeals raising two issues, which we recite verbatim:

I. Whether the award of summary judgment in favor of Defendants [the] City and [DSU] should be reversed because there are genuine issues of material fact concerning these Defendantfs’] negligence which contributed to Plaintiffs damages and these political entities are not cloaked with absolute sovereign immunity under the limitations imposed by the [MTCA].
II. Whether the trial judge abused his discretion in denying Plaintiffs Second Motion to Compel against the [City] and [DSU] thereby [denying] [the] Plaintiff the reasonable opportunity to conduct additional discovery [that] likely would have revealed additional issues of material fact preventing summary judgment.

STANDARD OF REVIEW

¶ 6. It is well established that an appellate court’s review of a trial court’s grant of summary judgment is de novo. Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 546 (¶ 5) (Miss.2009). “The trial court’s decision to grant summary judgment will be affirmed if the record before the Court shows that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law.” Id. at 547 (citations omitted). However, the proper standard of review that this Court employs when reviewing a lower court’s decision to not grant a motion to compel is abuse of discretion. Edmonds v. Williamson, 13 So.3d 1283, 1292 (¶28) (Miss.2009) (citing Elec. Data Sys. Corp. v. Miss. Div. of Medicaid, 853 So.2d 1192, 1209 (¶ 57) (Miss.2003)).

ANALYSIS

I. Summary Judgment

¶ 7. “When a motion for summary judgment is made and supported, an adverse party may not rest upon the mere allegations or denials of his pleadings. His response must set forth specific facts showing that there is a genuine issue for trial.” Barrentine v. Miss. Dep’t. of Transp., 913 So.2d 391, 393 (¶7) (Miss.Ct.App.2005). On appeal, Hankins first argues that the circuit court erred in granting DSU’s and the City’s motions for summary judgment because there were still genuine issues of material fact to be resolved. Specifically, she submits that DSU and the City are not entitled to absolute immunity under the MTCA. In its two separate orders granting DSU’s and the City’s motions for summary judgment, the circuit court held that each were entitled to immunity pursuant to the design, discretionary, and premises exemptions found in Mississippi Code Annotated section 11-46-9 (Supp.2011). We will address each of these immunities separately.

A. Design Exemption

¶ 8. The circuit court found that both DSU and the City were entitled to immunity under Mississippi Code Annotated section 11 — 46—9(1)(p) which states in pertinent part:

A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
Arising out of a plan or design for construction or improvements to public property, including but not limited to, ... highways, roads, streets, ... where such plan or design has been approved in advance of the construction or improvement by the legislative body or governing authority of a governmental entity or by some other body or administrative agency, exercising discretion by authority to give such approval, and where such plan or design is in conformity with engineering or design standards in effect at the time of preparation of the plan or design[.]

¶ 9. For DSU and the City to receive immunity under this provision of the statute, each would have to prove the following three elements: (1) the existence of a plan or design, (2) that the plan or design was approved prior to construction, and (3) the plan or design was in conformity with the engineering standards that were in effect at the time it was prepared. MacDonald ex rel. MacDonald v. Miss. Dep’t. of Transp., 955 So.2d 355, 358 (¶ 7) (Miss.Ct.App.2006). Hankins correctly argues that neither the City nor DSU presented a plan or design for the street, much less one that was approved in advance of construction as required by statute. Although the circuit court erred in granting immunity based on this provision, such error is not dispositive of the case.

B. Discretionary Exemption

¶ 10. The next issue raised on appeal is whether the circuit court erred when it granted DSU and the City immunity under the discretionary-function exemption of Mississippi Code Annotated section 11 — 46—9(1)(d). This provision protects the governmental entity from claims that are “[biased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.” Miss.Code Ann. § 11-46—9(1)(d). For a governmental entity to be granted immunity under this provision, we must determine the following: “(1) whether the activity involved an element of choice or judgment; and if so, (2) whether the choice or judgment in supervision involves social, economic[,] or political policy alternatives.” Miss. Dep’t of Mental Health & Ellisville State Sch. v. Shaw, 45 So.3d 656, 659 (¶ 12) (Miss.2010) (quoting Bridges v. Pearl River Valley Water Supply Dist., 793 So.2d 584, 588 (¶ 15) (Miss. 2001)). A decision will be considered ministerial and not discretionary “[if] the duty is one which has been positively imposed by law and its performance required at a time and in a manner or upon conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer’s judgment or discretion.” L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1141 (¶22) (Miss.1999) (quoting T.M. v. Noblitt, 650 So.2d 1340, 1344 (Miss.1995) (overruled on other grounds)).

¶ 11. Hankins raises several arguments under this issue. She first argues that both DSU and the City failed to provide any evidence that there was a budgetary, societal, or political policy concern in the decision to place the improper traffic warnings and the failure to maintain the crosswalk. In fact, she asserts that the evidence supports there was money available to take the proper precautions at the crosswalk, because after the accident, the crosswalk received new paint and additional lighting. Additionally, she submits that a different crosswalk only a block from the Fifth Avenue crosswalk had been updated recently; thus, there must have been money available to update the Fifth Avenue crosswalk as well. She further argues that reasonable steps to minimize risks of personal injury are still necessary to provide reasonable safety to citizens and that the “[fjailure to take any such steps where feasible is negligent and not within the discretionary[-]funetion exemption, even though the particular nature of the appropriate steps is discretionary”; thus, DSU’s and the City’s failure to update and maintain the crosswalk is not discretionary since the steps to protect the citizens would have been reasonable. Ladner v. Stone County, 938 So.2d 270, 275 (¶ 18) (Miss.Ct.App.2006) (quoting Wright v. United States, 866 F.Supp. 804, 806 (S.D.N.Y.1994)). At first blush, it appears that Hankins is arguing that the Manual Uniform Traffic Control Devices (MUTCD), which provides the requirements that must be followed in regard to which warning signs to use and the placement of those signs, creates a duty on the part of DSU and the City for the proper placement of the signs. However, a further reading shows that Hankins is asserting that both the City and DSU had an independent legal duty outside of the MUTCD requirements which makes them ineligible for immunity under this provision as making the placement of the signs ministerial and not discretionary. She argues that the City’s duty is found in Mississippi Code Annotated section 21-37-3 (Rev.2007), which imposes a duty on the City to maintain its streets. Hankins argues that DSU’s duty comes from her status as a student on DSU’s campus making her an invitee on DSU’s premises. “A landowner owes an invitee the duty to keep the premises reasonably safe and when not reasonably safe to warn only where there is hidden danger or peril that is not plain and open to view.” Cook v. Stringer, 764 So.2d 481, 483 (¶ 7) (Miss.Ct.App.2000) (quoting Am. Nat’l Ins. Co. v. Hogue, 749 So.2d 1254, 1258 (¶ 11) (Miss.Ct.App.2000)).

¶ 12. Generally, it has been found that “[t]he placement, or non-placement, of warning signs is a discretionary act, involving a choice that must be based upon public policy and other considerations.” Willingham v. Miss. Transp. Comm’n, 944 So.2d 949, 958 (¶13) (Miss.Ct.App.2006). Unknowingly, Hankins provides evidence to support the circuit court’s decision that the placement of the signs and that the maintenance of the crosswalk were discretionary functions. In its brief and in response to Hankins’s argument that the funds existed to maintain the crosswalk, DSU asserts that Hankins “overlooks the fact that other improvements on campus with the limited funds available would not have been made” had DSU used the funds on the signs for the Fifth Avenue crosswalk. Hankins also submits that the maintenance of other crosswalks is evidence there were funds available to maintain the Fifth Avenue crosswalk. Just as DSU pointed out in the quoted language from its brief, the decision to maintain other crosswalks is a prime example of when the decision is based upon a policy judgment of someone and is not a statutorily imposed duty. In regard to Hankins’s assertion that the City had a statutory duty under Mississippi Code Annotated section 21-37-8, we do not read the statute to impose a duty on the City. Instead, we interpret the statute only to give the City the power to exercise jurisdiction over the streets and not a mandatory duty to maintain them. Thus, we conclude that the City’s decision to maintain the crosswalk is a discretionary function.

¶ 13. Therefore, as this was a discretionary function, the circuit court was correct in granting immunity to DSU and the City pursuant to Mississippi Code Annotated section 11-6-9(1)(d). Hankins failed to provide any legitimate support that DSU and the City had a statutorily imposed duty to maintain the crosswalk. Therefore, this issue is without merit.

C. Premises Exemption

¶ 14. DSU and the City were additionally granted immunity pursuant to Mississippi Code Annotated sections 11-46-9(1)(v) and 11-46-9(1)(w). The first section provides immunity to a governmental entity for injuries that occur on the premises owned by the entity and reads as follows:

Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care[.]

Miss.Code Ann. § 11-46-9(1)(v).

¶ 15. Mississippi Code Annotated section ll-46-9(l)(w) states:

Arising out of the absence, condition, malfunction or removal by third parties of any sign, signal, warning device, illumination device, guardrailf,] or median barrier, unless the absence, condition, malfunction or removal is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice[.]

(Emphasis added). For Hankins to demonstrate that the City and DSU were not entitled to immunity under Mississippi Code Annotated section 11 — 46—9(l)(v), she would have to show that the elements outlined in Howard v. City of Biloxi, 943 So.2d 751, 754 (¶ 5) (Miss.Ct.App.2006) were not met. We paraphrase the elements listed in Howard as follows:

1. An injury was suffered;
2. The injury was caused by a dangerous condition on the property caused by the negligent or other wrongful conduct of the government employee;
3. The governmental entity had either actual or constructive notice of the defect;
4. The governmental entity had an adequate opportunity to protect or warn of this defect; and
5. The condition was not open and obvious to one exercising due care.

Id.

¶ 16. Applying these elements to the case before us, it is apparent that Hankins suffered an injury. As to the remaining elements, Hankins alleges that the dangerous condition was not “crossing the road” as the circuit court found; instead, she alleged that: improper warning signs on the street did not adequately warn approaching drivers of the crosswalk; the crosswalk was poorly maintained; and inadequate lighting existed in the crosswalk area. She lastly argues that the circuit court erred in finding that the “open-and-obvious” element acted as a complete bar to her recovery.

¶ 17. We find that the circuit court was correct in granting immunity to DSU and the City under these provisions of the statute. Hankins failed to present any evidence that the City or DSU had any notice of any claimed defect or had the opportunity to protect or warn of the defect. At the summary-judgment hearing, Hankins’s attorney attempted to demonstrate notice by showing a news story filmed after the accident. In the video, DSU’s chief of police commented on the lighting conditions at the crosswalk. This evidence is not sufficient to show either the City or DSU had any actual or constructive notice of the defect prior to the accident or the opportunity to warn of the defect.

¶ 18. Although the above reasoning provides sufficient ground to support the circuit court’s decision to grant immunity to DSU and the City, we will further address Hankins’s argument on the open-and-obvious element. At her deposition, Hankins testified under oath that she had used the Fifth Avenue crosswalk daily, and on that particular day, she had stopped before entering the crosswalk and was aware that Towles’s car, with its lights on, was driving toward her. When asked if she could see the oncoming cars and their headlights, Hankins responded in the affirmative. When Hankins was also asked why she decided to walk into crosswalk with cars still moving toward it; she responded: “Because I thought he would stop.... ” Hankins further testified at her deposition that she entered the crosswalk knowing there were vehicles in close proximity moving toward her and on the assumption that the vehicles would stop before reaching the crosswalk. In fact, she never looked to see if the vehicles were actually going to stop. Crossing a busy street at dusk, even if properly lit and with adequate warning signs posted as Hankins argues, is an open-and-obvious danger that a reasonable person should undertake with caution. Hankins, relying on the language in City of Natchez v. Jackson, 941 So.2d 865, 876 (¶ 33) (Miss.Ct.App.2006), argues that the open-and-obvious nature of the dangerous condition was “not a bar to recovery when the issue is the government’s negligent maintenance or repair which led to the dangerous condition.” In Howard, 943 So.2d at 756 (¶ 16), we held that “actions brought against an entity-invoking the protection of the [MTCA] differ from the general negligence action” in that the abolishment of the “open-and-obvious” defense as a complete bar to recovery in negligence actions may not apply to cases brought under the MTCA. We further held that the statute requires suits brought against entities for injuries caused by a dangerous condition requires a showing of the entity’s failure to warn. Id. As was discussed earlier in this section, Han-kins failed to provide any evidence that either the City or DSU had knowledge of the dangerous condition and failed to warn. She additionally fails to show that the open-and-obvious nature of the alleged dangerous condition, of which she was obviously aware, should not act as a complete bar to her recovery.

¶ 19. This issue is without merit.

II. Discovery

¶ 20. Lastly, Hankins argues that the circuit judge abused his discretion in denying her second motion to compel discovery. She argues that DSU and the City “manipulated” the situation by untimely producing documents she requested; thus, when she received the documents and began preparing for depositions, the period for discovery was closed.

¶ 21. It should first be noted that Hankins failed to cite to any relevant case or statute in support of her argument as required under Mississippi Rule of Appellate Procedure 28. Further, matters involving discovery are committed to the circuit judge’s discretion. Morton v. City of Shelby, 984 So.2d 323, 342 (¶46) (Miss. Ct.App.2007). In Morton, this Court stated that Tyrone Morton provided no explanation as to what new information he would have sought had he been granted the additional time or how that information would have affected whether a summary judgment was appropriate. Id. This Court held that “[h]aving failed to establish any narrowly-tailored issues to be addressed by additional discovery, Morton’s request for such amounts to nothing more than an attempt to re-open the entire discovery process.” Id.

¶ 22. Hankins’s brief does not provide, with any specificity, the information she hoped to gain had the motion to compel been granted. Nor does Hankins provide any argument as to how any new information would have helped her defeat the motions summary judgment. Procedural bar notwithstanding, the discovery completed was sufficient for the circuit court to grant immunity to DSU and the City.

¶ 23. This issue is proeedurally barred and also without merit.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, MAXWELL AND RUSSELL, JJ„ CONCUR. CARLTON, J., CONCURS IN RESULT ONLY.

      . Although Hankins filed suit again Towles, DSU, and the City, the claims against Towles are not at issue on appeal. This opinion will only address the claims against DSU and the City.

      . For the purpose of determining which party was responsible for the routine maintenance of the crosswalk, we look to the City’s admission to DSU’s discovery requests that the maintenance of the Fifth Avenue crosswalk was within its power and jurisdiction and not within DSU’s. The language is quoted as follows:
      Request No. 1: Please admit that the [City] conducts the periodic maintenance of 5th Avenue, including that portion of 5th Avenue that runs through the campus of [DSU]. Response: [The] City admits that Fifth Avenue is a public street in the City of Cleveland, Mississippi. With regard to that portion of Fifth Avenue lying north of Court Street and south of Sunflower Road, jurisdiction over road maintenance, including regulatory functions, was exercised by the [City], Absent approval from the City, DSU does not have authority to perform regulatory functions within the traveled right of way of that portion of Fifth Avenue lying north of Court Street and south of Sunflower Road. Except as expressly admitted, the remaining allegations of Request for Admission No. 1 are denied.
      Based on this discovery response, it appears that the City was primarily responsible for the routine maintenance of Fifth Avenue and its crosswalk; DSU could maintain the area only with the City's approval.

      . The language of the statute provides:
      Except as otherwise provided in subsection (2) of this section, the governing authorities of municipalities shall have the power to exercise full jurisdiction in the matter of streets, sidewalks, sewers, and parks; to open and lay out and construct the same; and to repair, maintain, pave, sprinkle, adorn, and light the same.
      Miss.Code Ann. § 21-37-3(1) (emphasis added).


author: GRIFFIS, P.J.,

text:
    Charlie D. TAYLOR, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01717-COA.
    Court of Appeals of Mississippi.
    Nov. 15, 2011.
    Rehearing Denied Feb. 28, 2012.
    Certiorari Denied June 7, 2012.

      Donald W. Boykin, Jackson, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ROBERTS, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Charlie D. Taylor appeals his convictions and sentences stemming from a shooting into a crowd on the porch of a home located in Jackson, Mississippi. Cordarel Brown was killed, and four other individuals were injured in the shooting. On appeal, Taylor asserts numerous assignments of error concerning jury instructions, voir dire, exclusion of evidence, and the circuit court’s reading of the indictment to the jury. We find no reversible error and affirm.

FACTS

¶ 2. On May 26, 2008, a group of people gathered on the porch of Phyllis Adams’s home located at 302 Manship Street in Jackson. Among the group were Taylor, Brown, Melvin Parker, Terrence Lampkin, Martez Samuel, and Alexis London. Parker testified that he and Lampkin began to horse around, and he accidentally knocked over Taylor’s cup of liquor. Taylor began to argue with Parker, but others in the group broke them up before a fight began. Taylor then advised the group he was leaving, and they should be gone before he got back. The group did not take Taylor’s threat seriously, and they remained on the porch.

¶ 3. The group later saw Taylor ride around the block in a car driven by Randy Johnson. After making the block, Johnson parked the car in front of Adams’s house. James Warren drove up behind Johnson’s car in a black jeep, which he also parked in front of the house. Lampkin was called over to Johnson’s car, and Lampkin and Taylor began to argue again. Lampkin turned away and walked back to the porch. Warren got out of his jeep and asked: “Who’s trying to jump on my little brother?”

¶ 4. That is when Joe Bennett, who had been lying down in the back of Johnson’s car, got out of the car with a M-16 assault rifle. He walked to the back of the car where Warren was standing and said: “I’m sick of you ni* *ers.” Then he opened fire on the porch shooting Brown, Parker, Lampkin, England, and Samuel. Parker testified that when he was lying on the ground after he had been shot, he looked back up at Taylor. Taylor looked at him and said, “Yeah, ni* *er.” Then Taylor got back in the car with Bennett and Johnson and drove off. Brown died from gunshot wounds to his chest and neck.

¶ 5. Bennett, Johnson, Warren, and Taylor were indicted for one count of murder, four counts of aggravated assault, and one count of shooting into an occupied dwelling. The jury found Taylor guilty on all counts except for Count III, aggravated assault of Lampkin. Taylor was sentenced to life for Brown’s murder, twenty years on each of the three convictions for aggravated assault, and ten years for shooting into an occupied dwelling, with all sentences ordered to run consecutively.

ANALYSIS

1. Jury Instructions

¶ 6. Taylor asserts that the circuit court improperly refused several of his proposed jury instructions and improperly granted several instructions proposed by the State. “Whether to give a jury instruction is within the sound discretion of the trial court.” Chamberlin v. State, 989 So.2d 320, 341-42 (¶ 80) (Miss.2008) (citation omitted). We review the jury instructions given as a whole to determine whether the refusal of a particular instruction was in error. Taylor v. State, 763 So.2d 913, 915 (¶ 8) (Miss.Ct.App.2000). If the instructions fairly state the law of the case and no injustice is created, no reversible error will be found. Id. “A defendant is entitled to have jury instructions given which present his theory of the case[;] however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Poole v. State, 826 So.2d 1222, 1230 (¶ 27) (Miss. 2002) (quoting Smith v. State, 802 So.2d 82, 88 (¶ 20) (Miss.2001)).

A Taylor’s Instruction on Aiding and Abetting

¶ 7. Taylor proposed Instruction D-16 regarding the intent required to be found guilty as an aider or abettor, which states:

For you to find Charlie Taylor guilty of any of the crimes for which he is charged, you must find beyond a reasonable doubt that he shared the same intent as the person principally committing the crime charged.

The State objected on the grounds that this was an improper statement of the law and that the issue was covered elsewhere in the instructions. The circuit court agreed and refused the instruction.

¶ 8. On appeal, Taylor cites Sneed v. State, 31 So.3d 33 (Miss.Ct.App.2009) for the proposition that the refusal of Instruction D-16 was error. However, in Sneed, we addressed the question of whether it was reversible error for the circuit court to grant an instruction similar to D-16.

¶ 9. Instruction C-16 in Sneed included this language: “In order to be found guilty as aiders and abettors of a crime, those Defendants charged as aiders and abett[o]rs must possess the same intent as the person principally committing the crime charged.” Id. at 45 (¶ 38). There, the defendants attacked this and other instructions and claimed that there was confusion as to what intent was required for the jury to convict them as aiders or abettors. Id. at 46 (¶ 43). This Court held that the jury was properly given an instruction on aiding and abetting as set forth in Milano v. State, 790 So.2d 179 (Miss.2001); thus, there was no reversible error in granting Instruction C-16 because the instructions, as a whole, provided a proper statement of the law. Sneed, 31 So.3d at 47 (¶ 47).

1110. In Milano, the supreme court adopted the United States Fifth Circuit Court of Appeals’ model jury instruction to “avoid any further confusion” on this issue. Id. at 185 (¶ 21). That model instruction, which we relied upon in Sneed, was given verbatim in the instant case as Instruction S-12. The Milano instruction states:

The guilt of a defendant in a criminal case may be established without proof that the defendant personally did every act constituting the offense alleged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by that person through the direction of another person as his or her agent, by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise.
If another person is acting under the direction of the defendant or if the defendant joins another person and performs acts with the intent to commit a crime, then the law holds the defendant responsible for the acts and conduct of such other persons just as though the defendant had committed the acts or engaged in such conduct.
Before any defendant may be held criminally responsible for the acts of others it is necessary that the accused deliberately associate himself in some way with the crime and participate in it with the intent to bring about the crime.
Of course, mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that a defendant either directed or aided and abetted the crime unless you find beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator.
In other words, you may not find any defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the defendant voluntarily participated in its commission with the intent to violate the law.

Milano, 790 So.2d at 185 (¶ 21) (emphasis added).

¶ 11. The Milano instruction, Instruction S-12, properly instructed the jury as to the intent required to convict Taylor as an aider or abettor under the current law; therefore, the circuit judge did not abuse his discretion in denying Instruction D-16. Additionally, the elements instructions required the jury to find that Taylor, “acting as an aider or abettor,” intentionally committed the acts charged before they could return guilty verdicts. The intent required to convict Taylor as an aider or abettor was sufficiently covered in the jury instructions. This issue has no merit.

B. Taylor’s Instruction on Deliberate Design

¶ 12. Taylor’s proposed Instruction D-18 defining deliberate design stated:

In the other instructions I have given you, the words “deliberate design” are included. “Deliberate” indicates full awareness of what one is doing and generally implies careful and unhurried consideration of the consequences. “Design” means to calculate, plan, and contemplate. “Deliberate design” means to intent [sic] to kill, without authority of law, and not being legally justifiable or legally excusable.

The State objected on the grounds that deliberate design had already been defined elsewhere in the instructions. The circuit court held that Instruction S-8 properly instructed the jury on this issue; therefore, Instruction D-18 was refused.

¶ 13. Instruction S-8 states:

The court instructs the jury that “deliberate design” cannot be formed at the very moment of the fatal aet[;] however, the deliberate design need not exist in the mind of the Defendant for any definite time, not for days, hours[,] or even minutes, but if there is deliberate design, and it exists in the mind of the Defendant but for an instant before the fatal act, this is sufficient deliberate design to constitute the offense of Murder.

On appeal, Taylor contends that Instruction S-8 does not define “deliberate design”; instead, it merely instructs the jury as to when the intent may be formed. The State responds that this same argument was rejected by the supreme court in Catchings v. State, 684 So.2d 591, 599 (Miss.1996).

¶ 14. Vernon Ray Catchings submitted a proposed jury instruction, similar to Taylor’s Instruction D-18, which defined the words “deliberate” and “design.” Id. The supreme court held that because the elements of murder had been sufficiently covered elsewhere in the instructions, Catchings was not entitled to an instruction further defining deliberate design. Id.

¶ 15. Here, the jury was given Instruction S-9, which was almost identical to the instruction given in Catchings. See id. at 598. Instruction S-9 states:

The court instructs the jury that murder is the killing of a human being, with malice aforethought, not in necessary self defense, and without the authority of law, by any means or by any manner, when done with deliberate design to effect the death of the person killed or when done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without premeditated design to effect the death of any particular individual.

¶ 16. Based on the supreme court’s ruling in Catchings, the jury here was properly instructed as to the elements of murder in the instructions as a whole. Accordingly, the circuit judge did not abuse his discretion in refusing Instruction D-18. This issue has no merit.

C. The State’s Instruction on Aiding and Abetting

¶ 17. The circuit court granted the State’s Instruction S-7C concerning aiding and abetting, which states:

The Court instructs the jury that one who aids and abets necessarily enters into an agreement that an unlawful act will be done. He participates in design of felony, [sic] In order to be held criminally liable as an aider and abettor in the commission of a felony, one must do something that will incite, encourage, or assist the actual perpetrator in the commission of the crime. If two or more persons enter into a combination or confederation to accomplish some unlawful object, any act done by any of the participants in pursuance of the original plan and with reference to the common object is, in contemplation of the law, the act of all.

¶ 18. Taylor claims that this instruction should not have been granted because it was confusing and repetitive. He argues that it is repetitive because the circuit court also gave the Milano instruction as Instruction S-12 regarding aiding and abetting. He also says the two instructions are confusing when read together.

¶ 19. It is well established that “proposed instructions should generally be granted if they are correct statements of law, are supported by the evidence, and are not repetitious.” Flowers v. State, 51 So.3d 911, 912-13 (¶ 6) (Miss.2010) (quotations omitted). Here, Taylor argues conversely that if two instructions given at trial are repetitious, the repetitious instructions are grounds for reversible error. That is not the case. In Wall v. State, 413 So.2d 1014, 1015 (Miss.1982), the supreme court held that while repetitious instructions were discouraged, such instructions did not constitute reversible error where they were not misleading to the jury.

¶ 20. Here, it is arguable that Instructions S-7C and S-12 are repetitive. They both discuss the actions of one who aids or abets another to commit a crime. However, we find no reason to assume that the two instructions were misleading to the jury. The only confusion asserted by Taylor is that Instruction S-7C does not require that the aider or abettor have the same intent as the person who principally committed the crime. This contention reverts back to his argument under issue 1A in which he claims that the circuit court was required to give the instruction given in Sneed. As discussed above, we find no merit to that argument.

¶ 21. There is no contention that either Instruction S-7C or S-12 is a misstatement of the law. To the extent that the instructions are repetitious, they should not have been given. Yet because we find no reason that the jury would have been misled by the repetition, we find that any error was harmless.

D. The State’s Instruction on Flight

¶ 22. Taylor claims that the circuit court should not have granted Instruction S-10, a flight instruction, which states:

The Court instructs the Jury that flight is a circumstance from which in the absence of a reasonable explanation therefor, guilty knowledge and fear may be inferred. If you find from the evidence in this case, beyond a reasonable doubt that the defendant, Charlie Taylor did flee after acting as an accessory before the fact in the killing of Cordarel Brown and shooting of Alexis [London], Melvin Parker, Martez Samuel, Terrence Lampkin and shooting into the home of Phyllis Adams, then the flight of Charlie Taylor is to be considered in connection with all other evidence in this case. You will determine from all the facts whether the flight was from a conscious sense of guilt or whether it was caused by other things, and give it such weight as you think it is entitled to in determining the guilt or innocence of Charlie Taylor.

Even though he did not testify, Taylor argues there is an obvious logical explanation why he fled the scene. Alternatively, he claims that the probative value of evidence of his flight is outweighed by the danger of unfair prejudice.

¶ 23. In Shaw v. State, 915 So.2d 442, 447 (¶ 18) (Miss.2005), the supreme court considered a similar instruction, stating:

We have consistently held that a defendant’s flight is admissible as evidence of consciousness of guilt. However, a flight instruction is appropriate only where the flight is unexplained and somehow probative of guilt or guilty knowledge. Therefore, evidence of flight is inadmissible where there is an independent reason for the flight. Also, it is well settled that evidence of flight or escape is admissible as an exception to [Mississippi Rule of Evidence] 404(b) in order to show guilty knowledge. While evidence of flight is admissible under Rule 404(b), it must be filtered through [Mississippi Rule of Evidence] 403.

Id. (citations omitted). The supreme court held: “In determining whether to admit evidence of flight under Rule 403, the trial court is afforded great discretion.” Id.

¶ 24. In his brief, Taylor states that the obvious reasons for his flight were that: Lampkin had a gun; Brown had been seen with a gun; and it was possible that someone else had access to an SKS rifle. But none of these assertions are supported by the evidence presented at trial. Taylor chose not to testify in his defense. Despite defense counsel’s best efforts, he was unable to illicit this testimony from any of the State’s witnesses. There was no testimony that Lampkin or Brown had a gun. Samuel, like all the other witnesses, testified that Lampkin did not have a gun. On cross-examination, the State stipulated that Samuel had given a statement to the police in which he said that Lampkin had shot a gun into the air earlier that day. Yet that fact was used only as impeachment evidence against Samuel and not as substantive evidence that Lampkin did, indeed, have a gun earlier in the day. Regardless, there was never any testimony, impeachment or otherwise, that showed Lampkin had a gun at the time he and the others were shot.

¶ 25. There was testimony that the police discovered an SKS rifle under an abandoned house in the lot adjacent to Adams’s home. But, again, there is no evidence that it was used by anyone involved in this case.

¶ 26. Taylor cites Tran v. State, 681 So.2d 514, 519 (Miss.1996), where the supreme court held that a flight instruction was not proper where the defendant makes a claim of self-defense. However, Taylor has made no claim of self-defense, and the supreme court’s holding in Tran does not apply. Instead, Taylor’s argument is more analogous to the holding in Brock v. State, 530 So.2d 146 (Miss.1988).

¶ 27. There, Leonardo Brock fled from authorities after a woman alleged that he was the man who had raped and shot her. Id. at 153. On appeal, he argued that the jury should not have been instructed on his flight because he had given an explanation as to why he fled. Id. The supreme court held that the instruction was proper because Brock’s version of events was “contradicted and ha[d] no support outside his own testimony.” Id.

¶ 28. Similarly, here, Taylor’s version of the reasons for his flight are not supported by the record. In fact, Taylor’s argument is much weaker than Brock’s because Taylor failed to present any evidence of his version of the story. Because there is no evidence to support the assertions made in Taylor’s brief, we find that his flight was unexplained.

¶ 29. Taylor also contends that the probative value of his flight is outweighed by its prejudicial effect in violation of Rule 403 of the Mississippi Rules of Evidence. We disagree. The circuit judge found that the evidence that Taylor had fled in the vehicle with Bennett immediately after the shooting was highly probative of Taylor’s guilty knowledge. We give the circuit judge great deference in conducting this balancing test, and we find no abuse of discretion on his part. Because Taylor’s flight was unexplained and the evidence of his flight was weighed by the circuit judge under Rule 403, we find no error in granting the flight instruction. Accordingly, this issue has no merit.

E. Taylor’s Instruction on Circumstantial Evidence

¶ 30. Taylor proposed Instruction D-14, which states:

This case is one of circumstantial evidence. For you to find Charlie Taylor guilty of any of the counts for which he is charged, you must find him guilty not only beyond a reasonable doubt, but also to the exclusion of every reasonable hypothesis consistent with innocence.

He argues this instruction on circumstantial evidence should have been given because there was no eyewitness testimony that he fired shots or aided or abetted the person who fired the shots. The State argues that the eyewitness testimony that Taylor had threatened to shoot up the house and then returned with Bennett, who did shoot at the house, was sufficient direct evidence such that an instruction on circumstantial evidence was not required.

¶ 31. The supreme court recently discussed this issue, stating:

Where all the evidence tending to prove the guilt of the defendant is circumstantial, the trial court must grant a jury instruction that every reasonable hypothesis other than that of guilt must be excluded in order to convict. Manning v. State, 735 So.2d 323, 338 (Miss.1999) (quoting Givens v. State, 618 So.2d 1313, 1318 (Miss.1993)). Circumstantial evidence is evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such a fact does exist. Alexander v. State, 749 So.2d 1031, 1036 (Miss.1999) (quoting Keys v. State, 478 So.2d 266, 268 (Miss.1985)). While evidence does not always fall neatly into one category, examples of direct evidence include an admission or confession by the defendant to a significant element of the offense, or eyewitness testimony to the gravamen of the offense charged. Mack v. State, 481 So.2d 793, 795 (Miss.1985) (citations omitted).

Kirkwood v. State, 52 So.3d 1184, 1186-87 (¶ 10) (Miss.2011). Importantly, “[eyewitness testimony constitutes direct evidence, and when the State presents direct evidence against a criminal defendant, a circumstantial-evidence instruction is not warranted.” Trammell v. State, 62 So.3d 424, 430 (¶ 26) (Miss.Ct.App.2011) (citations omitted).

¶ 32. Here, numerous eyewitnesses testified that Bennett was the one who fired the gun. Also, there was ample testimony that the witnesses saw Taylor become angry over his spilled drink. He then threatened that they should be gone when he got back, and one witness testified that Taylor said we was going to shoot the corner up. There was eyewitness testimony that Taylor later returned with Bennett who got out of the ear and started shooting. Parker testified that after Parker had been shot Taylor said, ‘Yeah, ni* *er,” indicating his involvement in the shooting.

¶ 33. The State was required to prove that Taylor, acting as an aider or abettor: (1) did purposely, knowingly, and felo-niously kill Brown with deliberate design or while in the commission of an act eminently dangerous to others, evincing a depraved heart, without the authority of the law; (2) did purposefully or knowingly cause or attempt to cause bodily injury to Parker, England, and Samuel; and (3) did willfully and unlawfully shoot or discharge a firearm into a dwelling usually occupied by persons.

¶ 34. As we discussed above, the Milano instruction requires that an aider or abettor is responsible for the acts of another when he “joins another person and performs acts with the intent to commit a crime.” The State must prove that “the accused deliberately associate^] himself in some way with the crime and participate in it with the intent to bring about the crime.” There was ample eyewitness testimony that Bennett committed each element of the crimes charged. And there was also ample eyewitness testimony that Taylor had the intent to bring about such crimes. Witnesses heard Taylor threaten to shoot at the house; they saw Taylor return with Bennett; Taylor then stood and watched the shooting saying, ‘Yeah, ni* *er,” to Parker before Taylor got in the car and drove off with Bennett. Such testimony was direct evidence of Taylor’s intent to commit the crimes charged.

¶ 35. The circuit judge found that there was direct evidence of an important element of each charge. We find that the circuit judge did not abuse his discretion in making such ruling; therefore, this issue has no merit.

2. Voir Dire

A. The State’s Challenges for Cause

¶36. Taylor asserts that the circuit court improperly granted the State’s challenge for cause on two members of the venire. A potential juror is properly removed for cause where “cause for challenge exists that would likely affect his competency or impartiality at trial.” Ross v. State, 16 So.3d 47, 54 (¶ 10) (Miss.Ct.App.2009). This court has held that “a circuit judge has wide discretion in determining whether to excuse any prospective juror, including one challenged for cause.” Smith v. State, 989 So.2d 973, 983-84 (¶ 36) (Miss.Ct.App.2008). We have stated that the trial court has “complete discretion” to remove any juror that the trial court is convinced is not able to try the case without any bias or prejudice toward the State or the defendant. Langston v. State, 791 So.2d 273, 281 (¶ 17) (Miss.Ct.App.2001). An appellate court may not reverse a decision by a trial court regarding jury selection unless there is an abuse of discretion. Williams v. State, 61 So.3d 981, 984 (¶ 14) (Miss.Ct.App.2011).

¶ 37. Taylor contends that the circuit court improperly struck Mason Pennaman whom the State challenged for cause because of Pennaman’s concern for his job. Pennaman is in his first year working for the fire department and works twenty-four hour shifts. He was concerned that the fire department would not allow him to miss work because he was in a probationary period.

¶ 38. Taylor argues that there was no issue concerning Pennaman’s ability to be fair, impartial, or competent. Instead Taylor claims that the State challenged Pennaman for his fear of losing his job. In his brief, Taylor argues that many prospective jurors are concerned about the effect that jury duty may have on their employment, but Taylor claims such concern is an insufficient reason for being removed for cause.

¶ 39. The State responds that it ultimately challenged Pennaman for cause since he “seemed to be up in the air about his job situation with the fire department and he said he’s on a year’s probation and he can’t miss work.” The State agreed with defense counsel that it seemed “bizarre that a juror would actually be fired for serving on a jury, but the prosecutor stated that he did not want a ‘distracted juror.’ ”

¶40. The trial court agreed with the State and accepted the State’s challenge for cause, making the following specific findings:

So we don’t know at this time whether he would be excused, but he is on probation with — with the employer. In this economy you certainly don’t want to lose your job. The — but the Court’s concerned he would be — he would be distracted. That’s the biggest concern. He’d be fearful of — of his job. The Court’s concerned that he wouldn’t give the defendant or the State fair consideration under the circumstances.

¶ 41. Taylor also contends that the circuit court improperly granted the State’s challenge for cause on Linda Boy-kins. Taylor argues that nothing said by Boykins during voir dire showed she could not be fair and impartial.

¶ 42. The State challenged Boykins for cause because of her relationship with Taylor’s family. Boykins told the court that she had known Taylor’s mother and sister for twenty years and that she knew the family well. Boykins also dated the father of one of Taylor’s sisters. Boykins had known Taylor’s sister for about twelve years.

¶ 43. Boykins also informed the circuit court that she had just held a conversation with Taylor’s mother regarding Taylor while she was outside the courtroom during a break in jury selection. Taylor’s mother informed Boykins that her son was the defendant.

¶ 44. The circuit court was concerned with the fact that a potential juror would discuss the matter when all prospective jurors had been specifically advised not to do so. While the circuit court noted that Boykins did not actually discuss the case, she was a prospective juror who “talked with the mother of this defendant just outside the courtroom.”

¶ 45. Mississippi Code Annotated section 13-5-79 (Rev.2002) provides that “[a]ny person who will make oath that he [or she] is impartial shall be competent as a juror in any criminal case. Any juror shall be excluded, however, if the court be of the opinion that he [or she] cannot try the case impartially, and the exclusion shall not be assignable as error.” The supreme court has interpreted this statute literally, holding that “once the judge [has] exercised his discretion and determined that the jurors probably could not be impartial, then the determination may not be assigned on appeal as an error[.]” Coverson v. State, 617 So.2d 642, 646 (Miss. 1993). Thus, this assignment of error is procedurally barred.

¶ 46. There is an important and long standing maxim stated by the supreme court that “a defendant does not have a vested right to any particular juror but only the right to be tried by a fair and impartial jury.” Smith v. State, 724 So.2d 280, 328 (¶ 193) (Miss.1998) (citing Johnson v. State, 631 So.2d 185, 191 (Miss. 1994)). The defendant cannot complain of the exclusion of a particular juror if the end result is a jury composed of fair and impartial jurors. Coverson, 617 So.2d at 646. The circuit court is responsible for ensuring that a competent, fair, and impartial jury is empaneled. Neal v. State, 15 So.3d 388, 398 (¶ 20) (Miss.2009). A defendant must present evidence to show that the jury was not fair and impartial, and thus prejudice resulted on the part of the defendant. Manning v. State, 735 So.2d 323, 336 (¶ 19) (Miss.1999).

¶ 47. Taylor does not argue that the jury was not fair or impartial. He merely argues that the determination by the circuit court that the two members of the venire should be struck is error. We find that it was not an abuse of discretion by the circuit court judge to strike Pennaman because of distraction or Boykins because of her conversation with Taylor’s mother during the jury selection proceedings. Therefore, we find this issue is both procedurally barred and without merit.

B. Limitation on Taylor’s Voir Dire

¶ 48. Taylor asserts that the circuit court improperly limited his voir dire by prohibiting him from asking the venire if they would be pressured to go home once they were in deliberations. Upon the State’s objection, Taylor proffered that he would have asked the venire:

Whether or not they would change their vote just because they did-were in the minority or change their vote for the purpose of going home.

¶ 49. Taylor also argues that the circuit court improperly sustained the State’s objection to Taylor’s asking the venire if they favored the prosecution or Taylor. Taylor asserts that it was critical to his case that he know if a potential juror might change their vote so as to not be in the minority and that he was entitled to know if a prospective juror had a problem that would cause them to change their vote after jury instructions and deliberations.

¶ 50. The State contends that the circuit court repeatedly stressed during voir dire that the jurors must be fair and impartial and that upon being seated, the jury was instructed to base their decision only on the evidence presented. The State further asserts that Taylor has failed to show any clear prejudice caused by the limited voir dire; thus, his assignment of error necessarily fails. The State relies on Moffett v. State, 49 So.3d 1073, 1089 (¶ 45) (Miss.2010) (quoting Jackson v. State, 791 So.2d 830, 835-36 (¶21) (Miss.2001)), in which the supreme court held:

The standard of review in examining the conduct of voir dire is abuse of discretion. Abuse of discretion will only be found where a defendant shows clear prejudice resulting from undue lack of constraint on the prosecution or undue constraint of the defense.

1151. In his brief, Taylor admits an abuse-of-discretion standard is to be applied to determine whether the trial court improperly limited voir dire, and a defendant must show that he was clearly prejudiced by undue constraint on his voir dire. Ross v. State, 954 So.2d 968, 988 (¶ 31) (Miss.2007). Yet he does not attempt to persuade this Court that he was prejudiced by the circuit court’s limitation.

¶ 52. Instead, Taylor contends, relying on Evans v. State, 725 So.2d 613 (Miss. 1997), that further voir dire was required to explore any prejudices of prospective jurors and to determine matters directly related to the case. He cites Evans for the proposition that while trial courts have a responsibility to control voir dire, the trial court must not hinder a full exploration of a juror’s predispositions by hypothetical questioning or otherwise. Id. at 650 (¶ 119).

¶ 53. Taylor’s argument is merely an attempt to avoid the fact that he has failed to show any prejudice created by the circuit court’s limitation. The supreme court has stated that “a voir dire is presumed sufficient to ensure a fair and impartial jury. To overcome this presumption, a party must present evidence indicating that the jury was not fair and impartial and show that prejudice resulted from the circuit court’s handling of the voir dire.” Ross, 954 So.2d at 988 (¶ 31). Mississippi law allows attorneys for each party to probe the prejudices of prospective jurors so that all will have an understanding of the juror’s thoughts on matters directly related to those being tried. Evans, 725 So.2d at 650 (¶ 121) (quoting West v. State, 558 So.2d 8, 22 (Miss.1989)). However, the determination of whether a question is proper or improper is not always easily made. Thus, it is a process where the trial judge must be afforded considerable discretion. Simon v. State, 688 So.2d 791, 799 (Miss.1997). Even the United States Supreme Court has stated:

Despite its importance, the adequacy of voir dire is not easily subject to appellate review. The trial judge’s function at this point in the trial is not unlike that of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions.

Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981).

¶ 54. Taylor fails to assert that the jury impaneled at his trial was unfair, prejudiced, or biased against him or that he received an unfair trial. Taylor also fails to claim that he was prejudiced by the limitation imposed on his voir dire by the circuit court. Since Taylor does not assert such, we find this claim is without merit.

3. Evidence of Other Guns

¶ 55. Taylor argues that the circuit judge improperly refused to admit evidence that a pistol had been found in Adams’s home and that an SKS rifle had been found under an abandoned house next door. The State responds that the circuit judge was correct to exclude this evidence as irrelevant because Taylor failed to link either weapon to the shooting for which he was charged.

¶ 56. Adams’s daughter, Philetta, testified that Adams had found a pistol near the bedroom door of her home. Philetta told the police that she assumed it must have been Brown’s because it was found in the same area as Brown’s body. When Taylor’s counsel attempted to cross-examine Adams about the pistol, the State objected claiming that the pistol was irrelevant because Taylor had made no attempt to connect the pistol to the shooting. The circuit judge agreed and sustained the State’s objection.

¶ 57. Taylor’s counsel made a proffer that Adams would testify that she found the pistol in her home after the shooting and that she had seen Brown with the pistol at some other unspecified time. Taylor claims that the pistol was relevant because the State did not prove the exact type of weapon that was used to shoot Brown and the other assault victims; therefore, he contends that the pistol found by Adams could have caused the injuries to the aggravated-assault victims and the bullet holes in the house.

¶ 58. “The admission of relevant evidence is left largely to the discretion of the trial judge.” Jackson v. State, 924 So.2d 531, 546 (¶ 54) (Miss.Ct.App.2005). Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401.

¶ 59. Here, the jury had already heard through Philetta’s testimony that a pistol was discovered in the home and that Phi-letta assumed it belonged to Brown. The only testimony excluded was that Adams had seen Brown with the pistol at some other time. None of the eyewitnesses testified that Brown had a gun or shot a gun that day. The fact that Adams might have seen Brown with the gun at another time was not relevant to the shooting at issue here. Taylor was unable to link the pistol to the crimes for which he was charged. The circuit judge did not abuse his discretion in excluding this evidence as irrelevant.

¶ 60. Taylor also contends that the circuit judge improperly excluded evidence concerning the SKS rifle found underneath the abandoned house next to Adams’s house. The circuit judge did not allow Taylor’s counsel to question Detective Christopher Watkins about the rifle. Taylor’s counsel proffered that Detective Watkins would testify that the rifle was found under the abandoned house the day after the shooting. However, Officer Robert Bufkin had already testified to that information about the rifle.

¶ 61. The State’s expert from the crime lab testified that the rifle could not have fired the type of rounds that were recovered from the crime scene. The circuit judge found that evidence of the rifle was irrelevant because Taylor had failed to connect it to the shooting.

¶ 62. When Taylor attempted to enter the pistol and the rifle into evidence for the jury to examine, the circuit judge restated his holding that neither gun was relevant because neither gun had been linked to the shooting in any way. The circuit judge further found that even if the guns were relevant, presenting the guns to the jury would be more prejudicial than probative under Rule 403 of the Mississippi Rules of Evidence.

¶ 63. We find that the circuit judge did not abuse his discretion by excluding certain evidence about the pistol and rifle. Accordingly, this issue has no merit.

A Reading the Indictment to the Jury

¶ 64. Taylor argues that the circuit court erred when it allowed the indictment to be read to the venire and when it instructed the venire on the grand-jury process. Specifically, Taylor contends that these actions violated his right to due process guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article 3, Section 14 of the Mississippi Constitution, which also guarantees the right to a fair and impartial jury.

¶ 65. While Taylor asserts a general claim of a violation of his due-process rights, he cites no legal authority in support thereof. The supreme court stated in Carter v. Mississippi Department of Corrections, 860 So.2d 1187, 1193 (¶ 17) (Miss. 2003): “Failure to cite legal authority in support of an issue is a procedural bar on appeal.” The supreme court has further stated that it is the duty of the appellant to “provide authority in support of an assignment of error.” Kelly v. State, 553 So.2d 517, 521 (Miss.1989). If such support is not provided, then the Court is under no duty to consider the claim. Id. Taylor’s failure to cite any legal authority in support of his position invokes the procedural bar; thus, this Court is under no duty to consider his assignment of error.

¶ 66. Furthermore, it has been held by the Mississippi Supreme Court that the jury must be informed of the precise charge against the accused, and providing such information is a duty of the trial court. Wood v. State, 275 So.2d 87, 89 (Miss.1973). The circuit judge did not violate Taylor’s right to due process or right to a fair and impartial jury by reading the indictment to the venire. Thus, we find this assignment is also without merit.

¶ 67. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF COUNT I, MURDER, AND SENTENCE OF LIFE; COUNT II, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS; COUNT IV, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS; COUNT V, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS; AND COUNT VI, SHOOTING INTO AN OCCUPIED DWELLING, AND SENTENCE OF TEN YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      .Parker testified that Taylor said: "Y'all better be gone when I get back.” Samuel testified that Taylor said: "Y’all better not be here when I get back.” Adams’s daughter, Philet-ta Adams, testified that Taylor said: "Everybody better be in the house at 12 o’clock because I’m going to shoot this corner up.”

      . Parker testified that Warren was referring to Taylor even though the two were not brothers.

      . Lampkin was the only victim who did not testify at trial.

      . The State points out that Adams could not have seen Brown with the pistol on the day of the shooting because she testified that she was not at home the day of the shooting, and she did not return home until the next day.