author: ISHEE, J.,

text:
    Lorenzo TARVER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2006-KA-01260-COA.
    Court of Appeals of Mississippi.
    Jan. 27, 2009.
    Rehearing Denied May 26, 2009.
    Certiorari Denied Aug. 20, 2009.

      Imhotep Alkebu-Lan, Chokwe Lumum-ba, Ali Shamsiddeen, Jackson, Attorneys For Appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   ISHEE, J.,

for the court.

¶ 1. In March 2005, Lorenzo Tarver was indicted in a two-count indictment by the grand jury of Leflore County for (1) possession of marijuana with the intent to sell, transfer, or distribute and (2) possession of a deadly weapon by a convicted felon. Following a jury trial in June 2006, Tarver was convicted of the crime in Count I, which was possession of marijuana with intent to sell, transfer, or distribute. In addition, the sentence was enhanced pursuant to Mississippi Code Annotated section 41-29-142 (Rev.2005) for possession of a controlled substance with the intent to sell, transfer, or distribute within 1,500 feet of a day care center. As a result, Tarver was ordered to serve a term of sixty years in the custody of the Mississippi Department of Corrections and to pay a fíne in the amount of $100,000. Aggrieved, Tarver appeals assigning the following issues for review:

I. Whether the State’s closing argument deprived Tarver of a fair trial.
II. Whether it was error to (1) exclude for cause jurors who expressed concern about missing evidence, (2) permit the prosecutor to talk about two tóals, and (3) strike an impaneled juror.
III. Whether the gun count of the indictment should have been severed.
IV. Whether Tarver’s motion for continuance was properly denied.
V. Whether Tarver’s motion to suppress his criminal record was properly denied.
VI. Whether the indictment was properly amended.
VII. Whether Tarver received effective assistance of counsel.
VIII. Whether Tarver is entitled to a new trial because of lost evidence.
IX. Whether Tarver’s right to a speedy trial was denied.
X. Whether Tarver’s motion for recu-sal was properly denied.
XI. Whether Tarver’s sentence is excessive and constitutes cruel and unusual punishment.
XII. Whether Tarver’s motion to suppress the evidence from the search warrant was properly denied.
XIII. Whether Tarver received a fundamentally fair and impartial trial.

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

FACTS

¶ 3. On June 18, 2004, officers from the Greenwood Police Department executed a search warrant after obtaining information from a confidential informant that there was a large amount of marijuana, money, and a gun in the house located at 506 Cypress Street, Greenwood, Mississippi. The officers searched the home and found 31.8 kilograms (69.9 pounds) of marijuana; more than $18,000 in cash; and a number of firearms, including a .40-caliber pistol. Tarver’s mother, step-father, and niece lived in the house; however, only Tarver was present at the time of the search. When it came time for the trial, the marijuana was missing from the evidence vault.

DISCUSSION

I. State’s Closing Argument

¶ 4. Tarver’s first complaint is that the State’s closing argument included remarks appealing to the juror’s emotions and insinuating criminal conduct by Tarver’s attorneys. Tarver alleges that the State made comments implying that Tarver’s attorneys thought people from Greenwood were ignorant, and that those comments were intended to appeal to the jury’s prejudice. Tarver also contends that the State’s comments referencing the missing marijuana were highly prejudicial and suggested that Tarver’s attorneys were responsible for the disappearance of the evidence. Tarver requests that this Court vacate his conviction based on prosecutorial misconduct and enter an order of dismissal or, in the alternative, remand this cause for a new trial.

¶ 5. It is well established that attorneys are granted wide latitude when making their closing arguments. Stubbs v. State, 878 So.2d 130, 136(1117) (Miss.Ct.App.2004). The standard of review used to determine if improper remarks warrant reversal is “whether the natural and probable effect of the prosecuting attorney’s improper ai’gument created unjust prejudice against the accused resulting in a decision influenced by prejudice.” Taylor v. State, 672 So.2d 1246, 1270 (Miss.1996) (citation omitted). The comments are evaluated by taking into consideration the complete context in which they were made. Sanders v. State, 939 So.2d 842, 846(¶ 9) (Miss.Ct.App.2006).

¶ 6. Tarver complains that during the State’s closing argument the prosecutor implied that Tarver’s attorneys were somehow involved in the disappearance of the marijuana from the evidence vault. Specifically, Tarver believes that the following comments were improper:

[By the Prosecution]: But you got a guy who admits to that kind of marijuana, has this kind of money, 18,000 dollars, knowing — we know that he’s going to have a[.]40-caliber [Beretta] [in] his house. And [the] defense lawyer talking about the missing evidence when they know good and well that that evidence was seen at a hearing where his co-attorneys were, and his investigator was, and his client was. Then all the sudden the first time it’s set for trial, it’s gone. They wanted to see the evidence vault. Shown where the vault is. Now I don’t know who showed them, but it was shown to them. The evidence vault. Now, you think this kind of stuff only happens on T.V. No. That’s for real. That’s why the FBI is investigating, and when we find out who did it — and you heard Lawrence Williams. Lawrence Williams said, may have been a police officer involved. And if it was — if it was, that police officer is going to be sitting right where that guy is sitting. And if we find out [Ali] ShamsidDeen and his cohorts down in Jackson were involved, they are going to be sitting right there.
[By the Defense]: Objection. Objection.
The Court: The objection is sustained.
[By the Prosecution]: Ladies and gentlemen of the jury, the people come up here from Jackson, big shot lawyers, I guess, I guess thinking Greenwood, Mississippi, bunch of ignoramuses. We don’t have any sense up here. You can just talk about — I mean, how long you going to talk about the prints? They said, we didn’t do the prints. How many hours of question did you hear about it? Talking about the constitution is made for the people, the people of the United States. That’s you. That’s all of us. It’s not just for Lorenzo Tarver, a drug dealer. It’s for all the people. And when we let somebody like this sell this kind of marijuana or possess with the intent to sell, have in their possession — and if you read the instruction, doesn’t have to be actual — doesn’t have to be holding it, possession. When we find that, I hope we convict, because this is a big fish, and there is a duty that all of us have as Americans, if he wants to talk about America.

¶ 7. We will first address Tar-ver’s assertion that the prosecutor appealed to the juror’s prejudice by stating that ShamsidDeen thinks people from Greenwood are ignorant. The record shows that Tarver failed to make a contemporaneous objection to that argument at trial. Although his comments almost certainly would have constituted prosecutorial misconduct, the law is clear that there must be a timely objection, and “a party who fails to make a contemporaneous objection at trial must rely on plain error to raise the issue on appeal, because it is otherwise procedurally barred.” Sims v. State, 919 So.2d 264, 266(¶ 7) (Miss.Ct.App.2005) (quoting Williams v. State, 794 So.2d 181, 187(¶23) (Miss.2001) (overruled on other grounds)). Only when a defendant’s substantive rights are affected will the plain-error rule be applied. Dobbins v. State, 766 So.2d 29, 32(¶ 5) (Miss.Ct.App.2000). “The plain-error doctrine requires that there be an error and that the error must have resulted in a manifest miscarriage of justice.” Sims, 919 So.2d at 266(¶ 7) (citation omitted). Given the facts of this case and the evidence presented at trial, we do not find that there was a manifest miscarriage of justice. This issue is without merit.

¶ 8. Next, we address Tarver’s contention that the State’s comments insinuated ci'iminal conduct by Tarver’s Jackson lawyers. The prosecutor also mentioned during his closing argument, however, that there was the possibility of the evidence being taken by a police officer. Due to the fact that the State had relied heavily on the Greenwood Police Department in building the prosecution’s case against Tarver, we also find that this comment did not affect the outcome. Although it was highly inappropriate for the prosecutor to make the disparaging comments about Tarver’s defense counsel, the fact that the State also implied that a police officer might have acted unlawfully in removing the mai'ijuana from the evidence vault partly canceled out the prejudicial effect toward the defense. Accordingly, this issue is without merit.

II. Whether it teas error to (1) exclude for cause jurors who expressed concern about missing evidence, (2) permit the prosecutor to talk about two trials, and (3) strike an impaneled juror.

f 9. Tarver’s second assignment of error contains three issues. We will address each one individually.

A. Excluding Jurors for Cause

¶ 10. Tarver claims that the circuit court abused its discretion in excluding for cause jurors who expressed concern over the fact that the marijuana was missing from the evidence vault and would not be presented at trial. He accuses the State of questioning jurors in such a manner that attempted “to elicit a pledge to vote a certain way if a certain set of circumstances [were] shown.” The State asked the prospective jurors if there was “anybody who would say that they’re automatically going to vote not guilty because the State [would not] be able to bring in [the] big bales of marijuana[.]” Several jurors raised their hands in reply, and as a result, they were struck for cause. Tarver concedes that his defense counsel did not object to the State’s allegedly impermissible challenges for cause, and he even agreed with the State’s challenges for two of the jurors; however, Tarver maintains that his counsel’s behavior “did not relieve the trial court from denying [the] same where they are judicially prohibitive.”

¶ 11. The circuit court has “wide discretion in determining whether to excuse any prospective juror.” Stigall v. State, 869 So.2d 410, 413(¶ 7) (Miss.Ct.App.2003). “The circuit judge has an absolute duty ... to see that the jury selected to try any case is fair, impartial and competent.” Id. (citation omitted). In addition, the Mississippi Supreme Court has consistently held that “a party who fails to object to the jury’s composition before it is empaneled waives any right to complain thereafter.” Thorson v. State, 895 So.2d 85, 118(¶81) (Miss.2004).

¶ 12. We do not find that the circuit court abused its discretion in ex-eluding the jurors. The jurors at issue answered in the affirmative when asked if they would automatically vote not guilty if the marijuana was not produced at trial. Therefore, excluding those jurors was an effort by the judge to select a fair and impartial jury. Furthermore, Tarver’s counsel failed to object to the jury at the time it was selected. Accordingly, this issue is procedurally barred and without merit.

B. Permitting Prosecutors to Discuss Two Trials

¶ 13. Tarver also claims that the circuit court abused its discretion by allowing the prosecutor to discuss two trials during voir dire: (1) Tarver’s trial and (2) the trial of whomever stole the missing marijuana evidence. He claims he was prejudiced by the introduction of another crime into his trial. Under Mississippi law, wide latitude is granted on voir dire to ensure that a party receives a fair trial and impartial jury. Tighe v. Crosthwait, 665 So.2d 1337, 1339 (Miss.1995). However, this does not mean that counsel is free of limitations. Id. at 1340. “[T]he voir dire examination is largely a matter within the sound discretion of the trial judge.” Woodward v. State, 533 So.2d 418, 425 (Miss.1988) (citation omitted).

¶ 14. We do not find that the circuit court judge abused his discretion in conducting voir dire. The prosecutor explained to the prospective jurors that the marijuana was missing and would not be presented as evidence. When he began to go into further detail, the defendant’s attorney, ShamsidDeen, objected, and the judge sustained the objection. At no time during voir dire did the prosecutor imply that Tarver was even remotely responsible for the missing marijuana. Tarver fails to provide any evidence of how he was prejudiced by the State’s comments; therefore, this issue is without merit.

C. Striking an Impaneled Juror

¶ 15. Tarver further claims that the court erred in striking an impaneled juror for allegedly having contact with a spectator in violation of Rule 3.06 of the Uniform Rules of Circuit and County Court. This occurred after a witness reported that Juror 11 was seen mingling in the hallway with a spectator from the courtroom. The court replaced the juror with an alternate, and Tarver argues that this was further evidence of the bias against him.

¶ 16. Rule 3.06 prohibits jurors from “mix[ing] and mingl[ing] with the attorneys, parties, witnesses and spectators in the courtroom, corridors, or restrooms in the courthouse.” URCCC 3.06. The rule further states that “[t]he court must instruct jurors that they are to avoid all contacts with the attorneys, parties, witnesses or spectators.” Id. Although the circuit court judge failed to so instruct the jurors in this case, Tarver sets forth no evidence to show how replacing Juror 11 with the alternate juror showed bias against him or caused him to suffer prejudice. The defense counsel had accepted the alternate juror without objection when the jury was being chosen. Rule 3.06 clearly states that jurors are not to mingle with spectators; therefore, the circuit court judge was simply enforcing the rule. Accordingly, this issue is without merit.

III. Severing the Gun Count of the Indictment

¶ 17. Tarver’s third assignment of eiTor is that the two counts of the indictment should have been severed. Mississippi Code Annotated section 99-7-2(1) (Rev.2007) allows two or more offenses to be charged in the same indictment with a separate count for each offense and tried in a single proceeding if: “(a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan.”

¶ 18. On appeal, a motion to sever is reviewed using the abuse of discretion standard. Rushing v. State, 911 So.2d 526, 532(¶ 12) (Miss.2005). Courts look to three factors when determining whether a motion to sever should be granted or denied: “[1] the time period between the offenses, [2] whether the evidence proving each offense would be admissible to prove the other counts, and [3] whether the offenses are interwoven.” Id. at 534(¶ 15). There is “no authority limiting the applicability of ... the multi-count indictment statute simply because some element of the necessary proof as to one charge would be inadmissible on the other charge were it being tried separately.” Wright v. State, 797 So.2d 1028, 1030(¶ 7) (Miss.Ct.App.2001). When a case contains evidence that is admissible for one purpose and inadmissible for another, “the answer is not to exclude the evidence altogether, but to admit it subject to the jury being instructed as to the limited purpose for which the information is admitted.” Id. at (¶8).

¶ 19. We find no merit in Tarver’s argument that he was prejudiced by trying the two offenses together in the same criminal proceeding. The circuit court properly instructed the jury on the limited purpose for which the evidence of Taiwer’s prior conviction was admitted. Furthermore, the jury did not find that Tarver was guilty of the second count of the indictment, in which he was charged with possession of a firearm by a convicted felon; therefore, the jury was clearly able to separate and differentiate between the two crimes. Accordingly, the circuit court did not abuse its discretion in denying Tarver’s motion to sever.

TV. Motion for Continuance

¶ 20. Tarver’s fourth assignment of error is that his motion for continuance should have been granted because his attorney, ShamsidDeen, was not prepared at the commencement of trial to render effective assistance of counsel. Tarver argues that his originally retained counsel, Chokwe Lumumba, had been suspended from the practice of law, and as a result, ShamsidDeen had only stepped in to argue the pretrial motions. The circuit court denied Tarver’s motion because it had been filed only two days before trial rather than the required seven days.

¶ 21. “The decision whether to grant or deny a continuance is a matter left to the sound discretion of the trial court. Unless manifest injustice is evident from the denial of a continuance, this Court will not reverse.” Strohm v. State, 845 So.2d 691, 695(¶ 8) (Miss.Ct.App.2003) (internal citatio2is omitted). The defendant bears the burden of presenting concrete facts that show how the denial of a continuance caused particular prejudice to his case. Stack v. State, 860 So.2d 687, 691-92(¶ 7) (Miss.2003). When a motion for continuance is filed because an attorney has not had enough time to adequately prepare for trial, it “is subject to proof and also as to facts as they may appear from that which is known from the trial court.” McCormick v. State, 802 So.2d 157, 160(¶ 13) (Miss.Ct.App.2001).

¶ 22. Tarver contends that his “motion was not filed seven days befoi’e trial in part because [ShamsidDeen] was not retained by Tarver nor paid to represent Tarver at trial.” He also complains that ShamsidDeen had only two days to prepare for trial. However, the record reveals that ShamsidDeen was granted an earlier motion for continuance, on which he was listed as “Attorney for Defendant,” that was filed on March 28, 2006, due to a conflict with his schedule. In addition, although the motion at issue, which Sham-sidDeen also signed as “Attorney for Defendant,” was not filed until June 12, 2006, the motion says it was “[r]espectfully submitted, this the 24th day of May, 2006.”

¶ 23. Based on the foregoing, we find that Tarver’s arguments lack merit. It was not as though ShamsidDeen had been newly hired only two days before the trial without any background knowledge of the case. To the contrary, ShamsidDeen had been acting as Tarver’s attorney for several months before the trial began. Due to the circumstances surrounding Lumumba’s suspension, it was foreseeable that Sham-sidDeen would be expected to step in as counsel, if not in March, certainly by May. This Court has upheld numerous denials of motions for continuances where the defense counsel had a limited amount of time to prepare for trial. See Stack, 860 So.2d at 692(¶ 9). We see no indication that the circuit court abused its discretion in denying Tarver’s motion for continuance, and Tarver fails to demonstrate how his case was prejudiced. Therefore, this issue is without merit.

V Motion to Suppress Tarver’s Criminal Record

¶ 24. Tarver’s fifth assignment of error is that the circuit court erred in denying his motion to exclude his prior criminal record, which contained a 1998 federal drug conviction. Tarver was previously charged with possession of cocaine ■with intent to distribute. He contends that because it is similar to the present charge of possession of marijuana -with intent to distribute, the prejudicial effect of its admission outweighed any probative value.

¶ 25. Pursuant to Mississippi Rule of Evidence 404(b), evidence of prior convictions may be admitted to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Swington v. State, 742 So.2d 1106, 1112(¶ 15) (Miss.1999). Such evidence may not be used, however, to imply that the defendant is more likely to be guilty of the current charge. White v. State, 842 So.2d 565, 673(¶ 24) (Miss.2003). The Mississippi Supreme Court has held that evidence of prior drug transactions offered to show the defendant’s intent to distribute “is not barred by M.R.E. 404 and is properly admissible if it passes muster under M.R.E. 403 and is accompanied by a proper limiting instruction.” Swington, 742 So.2d at 1112(¶ 14). The purpose of Rule 403 is to ensure that the evidence offered does not present a risk of undue prejudice that would substantially outweigh the probative value if admitted. Palmer v. State, 939 So.2d 792, 795(¶ 10) (Miss.2006).

¶ 26. The circuit court admitted the prior conviction after hearing oral arguments and considering the motion. The circuit court offered a limiting instruction in this case so that the jury would only consider the evidence for the purpose of establishing Tarver’s intent to sell, transfer, or distribute marijuana. We find that the prior conviction was properly admitted to show intent and was accompanied by a proper limiting instruction. This issue is without merit.

VI. Amendment to the Indictment

¶ 27. Tarver’s sixth assignment of error is that the circuit court committed reversible error by allowing the State to amend the indictment to allege that the crime was committed within 1,500 feet of a day care center instead of a park. He alleges that it caused him to be prejudiced because “before the amendment of the in-dictmentf,] the State could not prove beyond a reasonable doubt that a park was within 1[,]500 feet from the house. After the amendment, his defense that the location was not a park was no longer available.”

¶ 28. “The purpose of an indictment is to furnish the defendants notice and a reasonable description of the charges against them.... Therefore, an indictment is only required to have a clear and concise statement of the elements of the crime the defendant is charged with.” Spicer v. State, 921 So.2d 292, 319(¶ 58) (Miss.2006). It may be amended to correct defects of form, but not defects of substance. Leonard v. State, 972 So.2d 24, 28(¶ 12) (Miss.Ct.App.2008). Am amendment of substance is one which “changes the charge made in the indictment to another crime.” Cridiso v. State, 956 So.2d 281, 285(¶ 9) (Miss.Ct.App.2006). A permissible change in the indictment is one that “does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant’s case.” Spears v. State, 942 So.2d 772, 774(¶ 6) (Miss.2006). Specifically, with regard to changing a location, Mississippi Code Annotated section 99-17-13 (Rev.2007) expressly allows for a court to amend an indictment when there “appear[s] to be any variance between the statement in the indictment and the evidence offered in proof thereof, in the name of any county, city, town, village, division, or any other place mentioned in such indictment.”

¶ 29. We find that the indictment fulfilled its purpose of furnishing Tarver with notice and a reasonable description of the charges against him, and that it contained a clear and concise statement of the elements of the crime with which he was charged. It stated that Tarver was being charged with the crimes of possession of marijuana with the intent to sell, transfer, or distribute pursuant to Mississippi Code Annotated section 41-29-139 (Rev.2005) and possession of a firearm by a previously convicted felon at “said location 506 Cypress Street being within one thousand five hundred (1[,]500) feet of a park, in violation of [s]ection 41-29-142(1), of the Mississippi Code of 1972.”

¶ 30. Mississippi Code Annotated section 41-29-142 enhances the sentence of any person who violates section 41-29-139(a)(1) by the following actions:

possessing with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance, in or on, or within one thousand five hundred (1,500) feet of, a building or outbuilding which is all or part of a public or private elementary, vocational or secondary school, or any church, public park, ballpark, public gymnasium, youth center or movie theater[.j

The statute does not make any distinction between parks or schools with regard to a violation; therefore, the amendment did not change the crime with which Tarver was charged. Finally, the indictment was amended six months before the trial commenced, so the defense was given sufficient notice to prepare and adjust their defense accordingly. Based on the foregoing, we find that the indictment was properly amended.

VII. Effective Assistance of Counsel

¶ 31. Tarver’s seventh assignment of error is that he received ineffective assistance of counsel. He claims that ShamsidDeen was not given enough time to prepare for trial and that this led to him committing multiple errors, such as not having seen photographic evidence that the State intended to use against Tarver, using the wrong jury list to exercise peremptory challenges, and failing to make all of the objections that Tarver asserts would have been appropriate throughout the trial.

¶ 32. On direct appeal, the record is typically not sufficient to support a claim of ineffective assistance of counsel; therefore, these claims are best brought when seeking post-conviction relief. Lyle v. State, 908 So.2d 189, 196(¶35) (Miss.Ct.App.2005) (citing Read v. State, 430 So.2d 832, 837 (Miss.1983)). The proper resolution of an ineffective assistance claim made on direct appeal is to “deny relief without prejudice to the defendant’s right to assert ineffective assistance of counsel in a post-conviction relief proceeding.” Id. The merits of such a claim may be addressed on direct appeal if the reviewing court finds that the record is adequate to determine whether counsel was ineffective without consideration of the trial judge’s findings of fact. Id. at (¶ 36).

¶ 33. To establish a claim for ineffective assistance of counsel, the defendant must prove that: (1) his counsel’s performance was deficient, and (2) that deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A counsel’s performance will be deemed ineffective if the reviewing court finds that counsel’s conduct “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Davis v. State, 897 So.2d 960, 964(¶ 10) (Miss.2004).

¶ 34. Although Tarver lists a number of complaints related to ShamsidDeen’s representation, he has “not demonstrated prejudice where, as here, he has not alleged anything that would have led to a different result.” Miller v. State, 914 So.2d 800, 803(¶ 11) (Miss.Ct.App.2005) (citation omitted). Based on our review of the record, we find that ShamsidDeen participated extensively in voir dire and in the direct and cross-examination of the witnesses. In addition, the record reveals multiple occasions where he did object at trial. As a result, we find that Shamsid-Deen’s representation was competent and successful to the extent that Tarver was found “not guilty” of one of the charges he faced. We hereby deny relief without prejudice to the defendant’s right to assert ineffective assistance of counsel in a post-conviction relief proceeding.

VIII. Lost Evidence

¶ 35. Tarver’s eighth assignment of error is that he should be entitled to a new trial based on the fact that the evidence had been lost by the time of trial. The evidence in question included 31.8 kilograms, or 69.6 pounds, of marijuana that was allegedly confiscated from his home by law enforcement and later found to be missing from the evidence vault. Before the evidence disappeared, however, it had been tested by the Mississippi Crime Laboratory, which confirmed that the substance was, in fact, marijuana. Tarver argues that he did not have the opportunity to have it independently tested to determine its exculpatory value.

¶ 36. “[T]he State has the duty to preserve evidence, but that duty is limited to the evidence which ‘might be expected to play a significant role in the suspect’s defense.’ ” Russell v. State, 849 So.2d 95, 114(¶ 58) (Miss.2003) (citation omitted). In order to determine whether a defendant is entitled to a new trial when evidence is lost or destroyed, the evidence must meet the 'following two-part test: (1) the evidence must have exculpatory value or nature that that was apparent before it was lost, and (2) the evidence must be of a nature that the defendant would not have the ability to obtain comparable evidence by other means. Id.

¶ 37. Tarver does not present any evidence to support his theory that the missing evidence might be of an exculpatory nature. When the police officers first arrived at Tarver’s home, he admitted that the three pounds of marijuana in his bedroom belonged to him. The officers also found a large scale under Tarver’s bed and over $18,000 in cash during their search. In addition, the garbage bags found at Tarver’s home containing the marijuana were confiscated by law enforcement and were presented into evidence at trial and still contained “marijuana residue.”

¶ 38. At trial, Adrian Hall, a forensic scientist who had been employed by the Mississippi Crime Laboratory for seven and a half years, testified as an expert witness. He informed the court that “[his] duties include[d] the analysis for the presence or absence of a controlled substance,” and that he had “performed well over four thousand different sample analys[es]” to determine whether a substance contained narcotics. Hall explained that a law enforcement officer had delivered the marijuana at issue to him on June 23, 2004. The Mississippi Crime Laboratory’s policy is that it does not accept evidence that weighs over a kilogram, but instead a core sample is taken, and the evidence is returned to the officer. The lab followed this procedure in the present case, and each of the three samples tested positively as marijuana.

¶ 39. Based on the foregoing, we find that Tarver fails to meet the first prong of the analysis in demonstrating that the evidence could have been of an exculpatory nature. Tarver does not set forth any evidence to indicate that there was an error in the crime lab’s testing. In addition, Tarver and Lumumba saw the evidence before it was stolen, when it was presented at an earlier hearing. If Tarver had desired to have the evidence independently tested before it went missing, he could have done so; however, he never made such a request. Accordingly, Tar-ver’s argument is without merit.

IX. S-peedy Trial

¶ 40. Tarver’s ninth assignment of error is that his state and federal constitutional rights to a speedy trial were violated. He points out that his arrest occurred on June 18, 2004, his indictment was recorded on March 7, 2005, his arraignment was held on April 1, 2005, and his trial commenced on June 14, 2006. Tarver filed a Motion to Dismiss for Violation of Defendant’s Speedy Trial Rights on May 31, 2005. The State, on the other hand, points to the complex evidence that was presented, the lengthy fingerprint analysis, the drug analysis, and the time needed by the crime lab to support its argument that there was good cause for the delay.

¶ 41. This Court reviews a circuit court’s decision to deny a motion to dismiss for violation of a defendant’s right to a speedy trial to determine whether the delay was due to good cause. Jenkins v. State, 947 So.2d 270, 275(¶8) (Miss.2006) (citing Manix v. State, 895 So.2d 167, 173(¶ 7) (Miss.2005)). A finding of good cause is a question of fact; therefore, we will uphold those decisions on appeal which are based on substantial, credible evidence and will only reverse if we find the circuit court’s decision to be clearly erroneous. Walton v. State, 678 So.2d 645, 648-49 (Miss.1996).

A. The Statutory Right

¶ 42. Mississippi law requires that all offenses for which an indictment is presented shall be tried within 270 days after the accused is arraigned, unless good cause is shown and the court has entered a continuance. Miss.Code Ann. § 99-17-1 (Rev.2007). The 270-day statutory limit applies only to the length of time between the arraignment and the trial; it does not include the time between the occurrence of the crime and the indictment. Jenkins, 947 So.2d at 275(¶ 9). The State bears the burden of establishing good cause for the delay since the defendant has no duty to bring himself to trial. Herring v. State, 691 So.2d 948, 953 (Miss.1997).

¶ 43. Tarver was arraigned on April 1, 2005. The trial was originally scheduled for June 22, 2005; however, it was continued so that Tarver’s motions could be heard in a two-day hearing. The circuit court’s order states that the trial had been scheduled and would have taken place had it not been for “defense counsel’s failure to follow established procedures of the court and defense counsel’s unavailability,” so the trial was rescheduled for December 1, 2005. The circuit court judge then granted the defendant’s motions for continuance on November 28, 2005, and on April 6, 2006, due to defense counsel’s unavailability-

¶ 44. Accordingly, we find that Tarver’s right to a speedy trial under section 99-17-1 was not violated. Although the 439 days between the arraignment and trial did exceed the 270-day limit, we do not find this to be the fault of the State or the circuit court. Continuances were filed and granted based upon showings of good cause in compliance with the statute, and “[cjontinuances granted to the defendant toll the running of our speedy trial statute and should not be counted against the State.” State v. Magnusen, 646 So.2d 1275, 1282 (Miss.1994) (citation omitted). Therefore, this issue is without merit.

B. The Constitutional Right

¶ 45. The right to a speedy trial is set forth in the Sixth Amendment of the United States Constitution. Guice v. State, 952 So.2d 129, 139(¶ 21) (Miss. 2007). Violation of a defendant’s constitutional right to a speedy trial is not automatic grounds for dismissal. Id. at (¶ 22). Rather, a balancing test is performed, which requires that courts approach such eases on an ad hoc basis. Id. The test is derived from the United States Supreme Court case of Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and it evaluates four factors: (1) length of the delay, (2) reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. Guice, 952 So.2d at 139(¶ 22) (citing Barker, 407 U.S. at 530, 92 S.Ct. 2182).

(1) Length of the Delay

¶ 46. If the length of time between the arrest and trial exceeds eight months, the delay is sufficient to trigger a Barker analysis. Jenkins, 947 So.2d at 276(¶ 14). Only if the length of the delay is “presumptively prejudicial” to the defendant will the remaining factors be considered. Id. The constitutional right, unlike the statutory right, attaches at the time that a person is effectively accused of a crime. Id. Because twenty-four months passed from the time of Tarver’s arrest until his trial, we will continue the Barker analysis under the assumption that it was presumptively prejudicial.

(2) Reason for the Delay

¶ 47. Next, the State bears the burden of proof in providing justification for the delay. Herring, 691 So.2d at 955-56. The State called Lawrence Williams, a detective sergeant with the Greenwood Police Department, to testify to the cause of the delay in bringing Tarver to trial. Sergeant Williams pointed to the complex nature of Tarver’s case, the large quantity of evidence with which they were dealing, and the fact that Greenwood had an uncharacteristically high crime rate that summer, which required that they “pretty much had every investigator working overtime .... It was just kind of pandemonium.”

¶ 48. Williams explained the routine procedure that the State follows in preparing a case to present it to the grand jury, including the investigation process, paperwork, documentation, and crime lab results. The first grand jury meeting following Tarver’s arrest was in September 2004. At that time, the results were not back from the crime lab, and the investigation was not complete. As a result, Tarver’s case was presented to the next available grand jury, which met in January 2005. The indictment was filed on March 7, 2005, and the arraignment date was April 1, 2005. As previously stated, the trial was originally scheduled for June 2005; however, it was delayed due to the defense counsel’s actions and motions for continuances.

¶ 49. Our supreme court has held that delays due to a crime lab’s backlog, overcrowded dockets, and understaffed prosecutors will not be heavily weighed against the State. See Jenkins, 947 So.2d at 275-76(¶ 10); McGhee v. State, 657 So.2d 799, 802 (Miss.1995). In Diddlemeyer v. State, 398 So.2d 1343, 1344-45 (Miss.1981), the supreme court found that a one-year delay was not unreasonable when the appellant had not shown prejudice, and the delay was due to court congestion and the fact that a grand jury was not in session when the crime was committed. Similarly, we do not find the current delay to have been unreasonable given the circumstances in this case. This factor weighs in the State’s favor.

(3) Assertion of Right

¶ 50. The State is responsible for bringing the defendant to trial in a timely manner. Magnusen, 646 So.2d at 1283. “Although the defendant has neither a duty nor an obligation to bring himself to trial, points are placed on his side of the ledger when ... he has made a demand for a speedy trial.” Id. The circuit court states in its order that Tarver asserted his right to a speedy trial; therefore, this factor weighs in his favor.

(4) Prejudice

¶ 51. A defendant may be prejudiced in two ways by a delay. Skaggs v. State, 676 So.2d 897, 901 (Miss.1996). First, it may impair the accused’s ability to defend himself due to lost evidence, fading memories, and difficulty in locating witnesses. Id. Second, the restraints of the defendant’s liberty may cause additional suffering. Id. Tarver complains that the delay contributed to the hardships he faced in locating two of his witnesses. However, he does not provide any evidence of how those two witnesses could have affected the outcome of his case. Therefore, this factor weighs in favor of the State.

If 52. After reviewing the Barker factors in light of the facts of this case and considering the totality of the circumstances, we find that the factors do not weigh in Tarver’s favor. Accordingly, we find that Tarver’s argument that he was not afforded a speedy trial is without merit.

X. Motion for Recusal

¶ 53. Tarver’s tenth assignment of error is that the circuit court judge had developed biases against Tarver’s original counsel, Lumumba, and those biases had spilled over to Tarver. To support his claim, he cites instances in which Lumum-ba had been late for court and had disagreements with the prosecutor and court administrator, as well as motions that Tar-ver filed that were denied.

¶ 54. When reviewing a judge’s refusal to recuse, this Courts applies a manifest-error standard. Dillard’s, Inc. v. Scott, 908 So.2d 93, 98(¶17) (Miss.2005). The Code of Judicial Conduct requires a judge to disqualify himself or herself when that judge’s “impartiality might be questioned by a reasonable person knowing all the circumstances ... including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party.” Id. (quoting Code of Judicial Conduct, Canon 3(E)(1)). A judge is presumed to be qualified and unbiased. Collins v. Joshi, 611 So.2d 898, 901 (Miss.1992). “This presumption may only be overcome by evidence showing beyond a reasonable doubt that the judge was biased or not qualified.” Id. A judge must recuse when a reasonable person aware of all the circumstances doubts the judge’s impartiality. Id.

¶ 55. Although Tarver complains that he believes the judge was biased against Lumumba, Tarver was represented by ShamsidDeen at trial since Lumumba was suspended from the practice of law. There has been no evidence presented that suggests the circuit court judge was biased or not qualified. The motions that were denied were not based on biases against Tarver, but they were denied for reasons discussed throughout this opinion. The circuit court judge refused to recuse himself stating that he “[could] not find just cause to recuse himself.” Accordingly, we find no reason to doubt the judge’s impartiality. This issue is without merit.

XI. Tarver’s Sentence

¶ 56. Tarver’s eleventh assignment of error is that the sentence and fines imposed by the circuit court are excessive and constitute cruel and unusual punishment in violation of the United States and Mississippi Constitutions. He does acknowledge, however, that they do not exceed the maximum period allowed by statute. The State believes the court was justified in imposing the maximum sentence, and it points out Tarver’s prior drug-related conviction and the fact that his sentence was enhanced for public considerations as to location.

¶ 57. “Sentencing is generally within the sound discretion of the trial judge and the trial judge’s decision will not be disturbed on appeal if the sentence is within the term provided by statute.” Bell v. State, 769 So.2d 247, 251(¶ 9) (Miss.Ct.App.2000). The Mississippi Supreme Court has acknowledged that the Legislature has control of the length of sentences. Id. The Legislature has provided a wide range of sentences to allow trial judges to assign appropriate sentences using their discretion. White v. State, 742 So.2d 1126, 1137(¶ 45) (Miss.1999). This Court will, however, review a sentence on Eighth Amendment grounds that is grossly disproportionate to the crime committed. Ford v. State, 975 So.2d 859, 869(¶39) (Miss.2008). If a “threshold comparison of the crime committed to the sentence imposed leads to an inference of ‘gross dis-proportionality,’ ” this Court will engage in the analysis provided in Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Id. (citation omitted).

¶ 58. We do not find that the sentence imposed was grossly disproportionate to the crime committed. Tarver was charged with possession of a large amount of marijuana with intent to sell or distribute within 1,500 feet of a day care center. Although he did receive the maximum possible sentence, it was within the statutory guidelines. Accordingly, we find that the circuit court did not abuse its discretion, and this issue is without merit.

XII. Tarver’s Motion to Suppress the Evidence from the Search Warrant

¶ 59. Tarver’s twelfth assignment of error is that the circuit court abused its discretion in denying his motion to suppress evidence. Tarver alleges that Chris Davis, the confidential informant, provided false information to Greenwood law enforcement officials, and it was that false information upon which the search warrant was granted. Davis’s original statement was recorded and served as the basis for the search warrant; however, he later changed his stqry and informed the circuit court that his statement had been false. Tarver also complains that the circuit court erred by not informing the defense that Davis was the informant.

¶ 60. This Court will only reverse a trial court’s ruling on the admission or suppression of evidence if the trial court abused its discretion in making its decision. Culp v. State, 933 So.2d 264, 274(¶ 26) (Miss.2005). On appeal, we look to determine whether there was “substantial credible evidence to support the trial court’s findings.” Id. With regard to disclosure of an informant’s identity, disclosure is not required “unless the confidential informant is to be produced at a hearing or trial or a failure to disclose his/her identity will infringe upon the constitutional rights of the accused or unless the informant was [an eyewitness] or depicts himself/herself as an eyewitness to the event or events constituting the charge” against the accused. Graves v. State, 767 So.2d 1049, 1052(¶9) (Miss.Ct.App.2000).

¶ 61. Tarver filed a motion to suppress to prevent the evidence that was seized from 506 Cypress Street from being presented at trial, but the motion was denied by the circuit court. Davis alleged that an investigator with the Greenwood Police Department, Jerome McCaskill, would tell him what to say, start the tape recorder, and then stop it in order to tell Davis what to say next; however, the court rejected his story for three reasons. First, the circuit court reviewed the tape and noted that it was only stopped one time, not repeatedly as Davis contended. Second, the circuit court noted that “Davis related his information in a detailed, unbroken narrative[,]” and “it would have been impossible for Mr. Davis to remember that many facts, unless they were based on his personal knowledge.” Finally, the court stated that “the veracity of [Davis’s] statement was borne out by the seizure of drugs and guns at the address. The record is devoid of any fact which would indicate how Sgt. McCaskill could possibly have known about the drugs and guns at the residence unless he learned it from [Davis].”

¶ 62. We agree with the circuit court’s decision that Tarver’s motion to suppress evidence obtained from the search warrant should be denied. The Greenwood Police Department enlisted the use of a confidential informant in good faith. That informant had been used on previous occasions, and in this situation, Davis provided information that proved to be accurate. We find that any recanting that may have been done by Davis after he gave his original statement is irrelevant. Accordingly, this issue is without merit.

XIII. Fundamentally Fair and Impartial Trial

¶ 63. Tarver’s final assignment of error is that the accumulation of the alleged errors denied him the right to a fundamentally fair and impartial trial. As a result, he claims that he should be granted a new trial. We disagree.

¶ 64. The Mississippi Supreme Court has held the following:

[u]pon appellate review of cases in which we find harmless error or any error which is not specifically found to be reversible in and of itself, we shall have the discretion to determine, on a case-by-case basis, as to whether such error or errors, although not reversible when standing alone, may when considered cumulatively require reversal because of the resulting cumulative prejudicial effect.

Lynch v. State, 951 So.2d 549, 555-56(¶ 20) (Miss.2007). In reviewing the record, we find no evidence of any errors by the circuit court that interfered with Tarver’s right to a fundamentally fair and impartial trial. We are mindful that “a criminal defendant is not entitled to a perfect trial, only a fair trial.” Sykes v. State, 895 So.2d 191, 196(¶ 22) (Miss.Ct.App.2005) (quoting McGilberry v. State, 741 So.2d 894, 924 (¶ 126) (Miss.1999)). Because we find that each of Tarver’s individual complaints is without merit, we find the same to be true on this issue.

¶ 65. THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY OF CONVICTION OF POSSESSION OF MARIJUANA WITH INTENT TO SELL, TRANSFER, OR DISTRIBUTE AND SENTENCE OF SIXTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A FINE OF $100,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ROBERTS AND CARLTON, JJ„ CONCUR. IRVING, J., CONCURS IN RESULT ONLY.

      . Although the statute does not specifically include "day care,” this Court has previously held that the enhanced sentence also applied to a day care. See Hodges v. State, 906 So.2d 23, 26(¶ 14) (Miss.Ct.App.2004).


source: Caselaw Access Project

author: BARNES, J., for the Court.

license: Public Domain

text:
    APAC MISSISSIPPI, INC. and Jose A. Ortega, Appellants, v. Brenda K. Brown JOHNSON, Appellee.
    No. 2007-CA-01009-COA.
    Court of Appeals of Mississippi.
    March 10, 2009.

      Jennifer Miller Bermel, William O. Luckett, attorneys for appellants.
    David L. Merideth, Ridgeland, Philip Mansour, Greenville, attorneys for apjoel-lee.
    Before MYERS, P.J., BARNES and ROBERTS, JJ.
   BARNES, J., for the Court.

¶ 1. This case comes on appeal from the Circuit Court of Washington County from a judgment of $350,000 against APAC Mississippi, Inc. (APAC) and Jose Ortega, an APAC employee, for injuries sustained by Brenda Johnson. APAC now appeals citing several assignments of error, the combination of which, APAC asserts, should have prompted the grant of a new trial or remittitur by the trial court. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On August 25, 2004, Johnson was driving her 1997 Chevrolet Lumina in an easterly direction on Highway 82 in Green-ville, Mississippi. At the same time, Ortega was driving a boom truck owned by APAC in a westerly direction on the same section of highway. The boom on the APAC truck came into contact with a power line and traffic signal on Highway 82. As a result, the power lines and support pole fell onto Johnson’s vehicle, causing her to spin out of control and come to rest near the median.

¶ 3. Johnson had to be removed from her vehicle with the “jaws of life,” and she was transported by ambulance to Delta Regional Medical Center. She was subsequently transported to the University Medical Center in Jackson, Mississippi for additional medical care. Johnson sustained several cuts and bruises, and it was found, after several tests, that she suffered from “fractures of the posterior neural spines at C6 and C7.” No surgery was required, but Johnson was ordered to wear a neck brace for approximately five weeks and to follow up with the Ortho Spine Clinic. In January 2005, Dr. Lenard Rut-kowski performed an MRI on Johnson, who was complaining of sinus pain, and noted “no residual signal to indicate fractures of C6 and C7.” He did prescribe a TENS unit and physical therapy, which Johnson attended for two months.

¶ 4. Johnson, in the meantime, had filed a complaint on August 31, 2004, alleging negligence on the part of APAC. APAC’s initial response denied any liability. Johnson submitted her answers to the first set of interrogatories propounded by APAC on March 14, 2005. In her response to the interrogatories, Johnson did not identify any potential expert witnesses; however, in response to “Interrogatory No. 19,” she noted that Dr. Marilyn McLeod and Dr. Rutkowski had treated her for injuries related to the accident. In addition, in response to “Interrogatory No. 20,” Johnson identified Diann Morgan, a nurse practitioner with the Delta Regional Family Care Clinic, as someone who had treated her for minor illnesses in the ten years prior to the incident. Johnson’s medical records were submitted to APAC during discovery. Johnson sent a second supplementary response to the interrogatories on March 22, 2006, but she did not address those particular interrogatories discussed above.

¶ 5. On February 1, 2007, Johnson issued witness subpoenas for Morgan and Dr. McLeod. She also sent a third supplemental response to the first set of interrogatories on February 5, 2007. The supplemented response to “Interrogatory No. 5” stated:

Although Plaintiff does not intend to call any experts at the trial of this matter, she does intend to call several of the Plaintiffs treating physicians and/or medical personnel, namely, Diann Morgan, a nurse practitioner, and Dr. Marilyn McLeod, the Emergency Room physician at Delta Regional Medical Center. Both of these individuals will testify regarding the nature, extent and severity of the injuries received by Brenda Johnson in this accident. All previous medical reports and diagnostic reports concerning their treatment of Plaintiff have previously been produced.

APAC filed a motion in limine on February 26, 2007, the morning of trial, requesting the testimonies of Dr. McLeod and Morgan be excluded at trial or, in the alternative, a motion for continuance. A hearing was held immediately, and the trial judge denied the motion stating that, as the two witnesses were only going to be testifying as to facts related to their treatment of Johnson, they were not considered expert witnesses and their testimonies were admissible.

¶ 6. As APAC decided not to contest the issue of liability at trial, the only issue for the jury was the awarding of damages. The jury awarded Johnson $350,000-$12,621.34 in actual damages and $337,378.66 for pain and suffering. On March 14, 2007, APAC filed a motion for a new trial or remittitur for $275,000, asserting that the jury award was excessive in light of Johnson’s minor injuries. APAC’s motion for new trial or remittitur was denied by the circuit court. It is from the denial of its motion that APAC appeals citing several assignments of error; the combination of which, APAC asserts, should have prompted the grant of a new trial or remittitur by the trial court.

¶ 7. First, APAC maintains that its motion to strike Dr. McLeod and Morgan as witnesses should have been granted as: (1) the witnesses were improperly considered by the court to be fact "witnesses when, in fact, they were permitted to provide expert opinions over APAC’s objections; and (2) as expert witnesses, Johnson failed to disclose them in a timely manner in discovery which should have prompted exclusion of their testimonies or, in the alternative, a continuance. Next, APAC contends that permitting a jury instruction regarding the consideration of future pain and suffering was error. Finally, APAC claims that the improper redirect and closing argument by Johnson’s counsel constituted error. APAC claims that these errors should have prompted the trial judge to grant APAC’s motion for a new trial or remittitur.

STANDARD OF REVIEW

¶ 8. A motion for a new trial challenges the weight of the evidence presented to the jury. Bass v. Bobo, 980 So.2d 944, 950(¶ 15) (Miss.Ct.App.2007) (citation omitted). A trial judge may grant a new trial in cases where he, “in the exercise of [his] sound discretion,” regards the verdict “as being contrary to the substantial weight of the evidence.” Coho Res., Inc. v. Chapman, 913 So.2d 899, 908(¶ 28) (Miss.2005). If a trial court makes a determination that an “error within the trial mechanism itself has caused a legally incorrect or unjust verdict,” then a new trial is warranted. White v. Stewman, 932 So.2d 27, 33(¶ 15) (Miss.2006). Therefore, “[s]ince the determination of whether to grant or deny a new trial, on motion of a party or by order entered on the initiative of the court, is within the sound discretion of the trial court, this Court reviews such orders for abuse of discretion.” Id. at (¶ 16).

¶ 9. Pursuant to Mississippi Code Annotated section 11-1-55 (Rev.2002), a trial court has the authority to order a remittitur if it finds “that the damages are excessive ... for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence.” “Such matters are reviewed on appeal for abuse of discretion.” Cade v. Walker, 771 So.2d 403, 407(¶ 11) (Miss.Ct.App.2000).

I. Whether the trial court’s denial of APAC’s motion to strike Dr. McLeod and Morgan as witnesses or, in the alternative, to grant a continuance was reversible error.

¶ 10. APAC maintains that it was error for the trial court to allow Dr. McLeod and Morgan, the nurse practitioner, to testify at trial or, in the alternative, not to grant APAC a continuance to prepare for their testimony. APAC’s reasoning is that Dr. McLeod and Morgan gave impermissible expert testimony, and they were only disclosed as witnesses on February 1, 2007, less than one month prior to the trial date. Johnson counters that the trial judge correctly denied the motion as the two witnesses merely testified as to facts regarding their treatment of Johnson, and they were never designated as experts.

¶ 11. “The standard of review for the admission or suppression of evidence in Mississippi is abuse of discretion.” Poole v. Avara, 908 So.2d 716, 721 (¶ 8) (Miss.2005) (citing Miss. Transp. Comm’n v. McLemore, 868 So.2d 31, 34(¶ 4) (Miss. 2003)). Moreover, even if error is found in the “admission or exclusion of evidence,” we will not reverse the trial court’s ruling “unless the error adversely affects a substantial right of a party.” Haggerty v. Foster, 838 So.2d 948, 960(¶ 35) (Miss.2002) (quoting Floyd v. City of Crystal Springs, 749 So.2d 110, 113(¶ 12) (Miss.1999)). So, unless we find that a trial court’s decision on whether to exclude or admit testimony “was arbitrary and clearly erroneous, amounting to an abuse of discretion, that decision will stand.” Crane Co. v. Kitzinger, 860 So.2d 1196, 1201(¶ 20) (Miss.2003) (citation omitted).

A. Whether the trial court committed reversible error by classifying Dr. McLeod and Morgan as fact witnesses and allowing their testimonies.

¶ 12. On appeal, APAC argues that Dr. McLeod’s and Morgan’s statements at trial strayed into the area of expert testimony. Our courts have different standards for lay and expert testimony, the reason for which “is that expert testimony is subject to special discovery rules to ‘allow the opposing party ample opportunity to challenge the witnesses] qualifications to render such opinion before the question soliciting opinion is posed in front of the jury.’ ” Griffin v. McKenney, 877 So.2d 425, 438(¶46) (Miss.Ct.App.2003) (quoting Sample v. State, 643 So.2d 524, 530 (Miss.1994)). Rule 701 of the Mississippi Rules of Evidence, which presents the standard for lay testimony, states:

If the witness is not testifying as an expert[,] the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to the clear understanding of the testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

¶ 13. In Scafidel v. Crawford, 486 So.2d 370, 372 (Miss.1986), the supreme court found that the admission of the testimony of two doctors who had treated the patient in question was not error as they were only lay witnesses testifying as to the facts and circumstances surrounding their treatment of the patient. The supreme court stated:

The question is whether these two fact witnesses crossed an impermissible line between fact testimony and expert opinion when they stated Mrs. Scafidel was anemic. We conclude they did not. Their opinions in this regard, according to their testimony, were acquired through their care and treatment of her during this illness. Just as they testified as fact witnesses that she had fever, chills, and diarrhea, so could they state, in our opinion, that she was anemic without becoming expert witnesses.

Id. Further, in Foster v. Noel, 715 So.2d 174, 183(¶ 54) (Miss.1998), the supreme court found that even when the treating physician did render impermissible expert testimony, that testimony “constituted harmless error” where other lay witnesses testified to essentially the same effect. Id.

¶ 14. APAC contends that Morgan’s and Dr. McLeod’s testimonies were impermissible expert testimony in support of a disputed diagnosis, Johnson’s hair-line fracture at vertebrae C6 and C7, which APAC cites as one of “the single most important issues of fact in dispute at the trial of this matter.” First, APAC argues that Morgan’s testimony regarding Johnson’s alleged fracture of her C-6 and C-7 vertebrae was inadmissable as expert testimony. On direct examination, counsel for Johnson asked:

MR. MANSOUR: Okay. Did you become aware of what the diagnosis was?
MORGAN: I did, because I requested the medical records from University Medical Center, as well as the emergency room at Delta Regional Medical Center, and in reviewing those medical records ... both did indicate that she had a fracture, or a broken area, at C-6, C-7, which if you’ll look right there, the bone that you look and point to on your neck, that is what we call Cervical 7 vertebra, and according to the records, those were — -those both — both of those were broken.
MR. MANSOUR: C-6 and C-7, are they medical terms for neck bones? Is that correct?
MORGAN: Yes; that’s correct.

Although APAC made a timely objection to these comments, we conclude that this testimony by Morgan merely provided information that she had gathered during her treatment of Johnson. APAC further contends that Dr. McLeod’s testimony and her review of photographs of Johnson’s injuries, which were admitted into evidence, were also impermissible expert testimony. Upon review, we find no indication that Dr. McLeod’s testimony was expert in nature. She merely examined the photographs in order to explain her initial diagnosis of Johnson immediately after the injury occurred. In fact, when Dr. McLeod was asked questions by APAC regarding tests performed on Johnson months later and which referenced Johnson’s fracture, she acknowledged that any testimony of that nature would be outside her scope of knowledge and did not answer.

¶ 15. In Griffin, the supreme court held “that a treating physician could testify as a lay witness about the facts and circumstances surrounding the care and treatment of the patient[,] ... may ... describe what his records about the patient reveal[,] ... [and may] state opinions on what conditions the patient was suffering from if the opinion was acquired during the care and treatment of the patient, and if no evidence was presented to the jury of the significance of the condition.” Griffin, 877 So.2d at 439-40(¶50) (citing Scafidel, 486 So.2d at 372). Therefore, we find that neither Dr. McLeod’s nor Morgan’s testimony constituted impermissible expert testimony. Furthermore, even if the testimony was expert in nature, we find the admission of such testimony amounts to no more than harmless error as the medical records were already introduced into evidence without objection by APAC.

B. Whether the trial court erred in not excluding the testimonies of Dr. McLeod and Morgan as they were not identified as expert witnesses until twenty days before trial.

¶ 16. As was already stated, Johnson never disclosed any expert witnesses during discovery. She merely stated in her supplemental response that she would be calling Dr. McLeod and Morgan as factual witnesses. APAC claims that Dr. McLeod and Morgan were, in fact, testifying as expert witnesses, and that their inclusion was a violation of Mississippi Rule of Civil Procedure 26(b)(4)(A)(i) which states:

A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert -witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

¶ 17. The purpose of the discovery rules promulgated by the Mississippi Supreme Court is that parties might “avoid trial by ambush” and have “a reasonable time to prepare for trial.” Congleton v. Shellfish Culture, Inc., 807 So.2d 492, 496(¶ 12) (Miss.Ct.App.2002) (citations omitted). This is particularly true “where the interrogatory asks for disclosure of expert witnesses.” Harris v. Gen. Host Corp., 503 So.2d 795, 797 (Miss.1986). The supreme court has deemed it “inherently unfair and a violation of our rules of civil procedure for a plaintiff’ who has violated the discovery rules “to appear at trial with experts whose opinions have not been properly disclosed to the defendants.” Banks v. Hill, 978 So.2d 663, 666(¶ 12) (Miss.2008). APAC contends that Dr. McLeod and Morgan were permitted to testify as to other doctors’ medical diagnoses and opinions; therefore, their testimonies were, in fact, expert in nature. Consequently, Johnson’s failure to include them as experts in the interrogatories was a discovery violation, and their testimonies should have been excluded.

¶ 18. “Rule 26(f) of the Mississippi Rules of Civil Procedure requires that all interrogatory responses be seasonably supplemented.” Motorola Commc’ns & Elecs., Inc. v. Wilkerson, 555 So.2d 713, 717 (Miss.1989). The trial court must determine whether a response is “seasonable” on a case-by-case basis by “looking at the totality of the circumstances surrounding the supplemental information the offering party seeks to admit.” Buchanan v. Ameristar Casino Vicksburg, Inc., 957 So.2d 969, 973(¶ 9) (Miss.2007) (citations omitted). Nevertheless, a delayed response to interrogatories will not be grounds for exclusion of testimony in cases where a party is not prejudiced by the delay and it does not result in an unfair advantage or surprise. See Scafidel, 486 So.2d at 373 (no error in allowing testimony of a witness who was not disclosed until the pretrial order and whose tissue slides were not available to either party until the day of trial).

¶ 19. As we have found that Dr. McLeod and Morgan did not give impermissible expert testimony, we find that the February 2007 supplemental response to “Interrogatory No. 5” was not a discovery violation in regard to Rule 26. Further, both witnesses were identified in the March 2005 discovery responses as persons with knowledge of Johnson’s medical condition — Morgan for minor illnesses and Dr. McLeod for injuries related to the accident at issue. In addition, although Morgan was not included in the response to “Interrogatory No. 19” as having treated Johnson for any injuries related to the accident, the record reflects that in Johnson’s November 2005 deposition, she did mention Morgan’s treatment of her following the accident. Counsel for Johnson read portions of the deposition during the hearing on APAC’s motion to exclude:

MR. MANSOUR: [I]n the deposition of ... my client Ms. Johnson, on Page 48, she was asked ... Who was the nurse.
She earlier said, I was seeing — you know, when I was able to get up and go to the doctor, she sent me to him because I was having real bad headaches, and when I would lean over, and I would be about to fall over, or if I’m looking — she would describe her symptoms — so she sent me to him for an MRI. That was the first time she mentioned it.
And who was the first person you mentioned you saw? And she answered, Diann Morgan.
Then we go to Page 56 of the deposition and she [counsel for APAC] says, So right now you’re not currently seeing any doctor for anything. No, I see Ms. Morgan, and she’s wanting to send me to somebody else.
Again, on Page 57, Ms. Bermel, “It may not be but just in case Ms. Morgan? That’s your nurse practitioner? “Right.”
Page 61, you’re talking — “Question: You’re talking about the pills on your night stand that help you sleep and whatnot. Are you talking about prescription medication?
“Answer: Ms. Morgan had given me some Lorcet, and she wouldn’t refill them. She told me she didn’t want me to get dependent on them.”
That’s about the fifth time she’s mentioned Ms. Morgan.
Again, on Page 63 of the deposition. Have you told any of the doctors about your arm — question talking about her arm being sore.
“I told Ms. Morgan. That’s why she wanted to send me to see what else, you know, what they can do besides give me a lot of drugs.”
Again, on page 64. I did — “Have you applied for disability?”
“I did, but I was denied. She told me to wait until she sent me to — ”
“Question: Who is she?”
“Answer: Ms. Morgan. She told me to wait till [sic] she sent me to another doctor.”

While Johnson failed to supplement her response to “Interrogatory No. 19” regarding Moi'gan, her deposition clearly identified Morgan as someone who treated her after her injury. As this provided APAC reasonable notice as to Morgan’s treatment of Johnson, the admission of Morgan’s testimony does not constitute a “trial by ambush” as argued by APAC. Therefore, we find no abuse of discretion in the trial court’s admission of Dr. McLeod’s and Morgan’s testimonies under the circumstances of this case.

C. Whether the trial court erred in not granting APAC’s motion for a continuance.

¶ 20. APAC also asserts that it was error for the trial court not to grant its motion for a continuance which, APAC claims, should have included sanctions against Johnson for APAC’s reasonable expenses and attorney’s fees. Johnson failed to address this issue in her response.

¶ 21. This Court will only reverse a trial court’s denial of a motion for continuance when the denial appears to have resulted in manifest injustice. Jacobs v. State, 870 So.2d 1202, 1205(¶ 7) (Miss.2004) (citing Johnson v. State, 681 So.2d 185, 189 (Miss.1994)). APAC contends that the late disclosure of the expert witnesses was not adequate time to “obtain recoi’ds, retain an expert in rebuttal, allow that expert time to review the file and records, formulate a response and then for [the] Defendants] to timely disclose a rebuttal expert’s opinion.” However, although requesting a continuance as an alternative remedy, APAC asserts that a continuance would not be the proper remedy based on the supreme court’s holding in Huff v. Polk, 408 So.2d 1368, 1371 (Miss.1982) (a trial court’s offer of a continuance may create a situation where either party could obtain a delay in trial by “not conforming to the ... discovery rules until the morning of the trial,” knowing that a continuance would be granted). See also Int’l Paper Co. v. Townsend, 961 So.2d 741, 756(¶ 32) (Miss.Ct.App.2007) (trial court erred in not granting a continuance because “the confused circumstances that ensued following the tardy [expert witness] designation ... unfairly tilt[ed] the playing field”).

¶ 22. As we have already determined that Dr. McCleod and Morgan were not expert witnesses, the rule regarding the timely designation of an expert witness does not apply. Therefore, to determine whether there was a manifest injustice in not granting the continuance, we must determine whether the admission of their testimonies prejudiced APAC. See Jacobs, 870 So.2d at 1205-06(¶ 7).

¶ 23. APAC was aware that Dr. McLeod and Morgan were persons who could be called to testify on Johnson’s behalf. They were listed in the March 2005 original set of interrogatories, albeit not as expert witnesses. Plus the two witnesses merely testified to information contained in the medical records, which APAC had obtained during discovery. While APAC contended that they did not receive Morgan’s medical records, the records were contained in those obtained from Delta Regional Medical Center. Therefore, APAC did have Morgan’s records; they were just unaware that those were specifically from Morgan. Johnson also provided APAC with an opinion letter from Morgan, which was dated February 19, 2007, detailing her treatment of Johnson.

¶ 24. Under the circumstances, we do not find an abuse of discretion in failing to grant a continuance and impose sanctions upon Johnson. “[Sanctions are not to be imposed per se for every discovery violation, and a determination of whether to impose such a sanction is ordinarily vested in the sound discretion of the trial judge.” Ladner v. Ladner, 436 So.2d 1366, 1371 (Miss.1983). Both witnesses were known to APAC during the discovery phase, and neither one provided any testimony that would have warranted their exclusion. We find no merit to this assignment of error.

II. Whether the trial court erred in allowing jury instruction No. 6(P-2) as there was no credible proof of future pain and suffering.

¶ 25. APAC claims that the trial court should not have allowed a jury instruction which instructed the jury that they could award damages for future pain and suffering as there was no credible evidence to support such a theory. Jury instruction No. 6(P-2) reads in part:

You may consider the following factors to determine the amount of damages, if any, to award as may be shown by a preponderance of the evidence:
(1) The type of injuries to the Plaintiff, Brenda K. Brown Johnson, if any, and their duration;
(2) Pain, suffering, and resulting mental anguish, past, present, and future, suffered by the Plaintiff, Brenda K. Brown Johnson, if any; and
(3) Reasonable and necessary medical expenses incurred by the Plaintiff, Brenda K. Brown Johnson.

APAC asserts that the evidence showed that Johnson had not received medical care in two years in relation to the injuries sustained in the accident. However, evidence was also presented and was properly submitted to the jury for its consideration that Johnson continued to suffer, both physically and mentally.

¶ 26. “This Court does not examine jury instructions in isolation; ‘rather, they are read as a whole to determine if the jury was properly instructed.’ ” Illinois Cent. R.R. v. Clinton, 727 So.2d 731, 736(¶ 15) (Miss.Ct.App.1998) (citing Boone v. Wal-Mart Stores, Inc., 680 So.2d 844, 845 (Miss.1996)). Parties have the right to “embody their theoi'ies of the case in the jury instructions provided there is testimony to support it[.]” Reese v. Summers, 792 So.2d 992, 994(¶4) (Miss.2001). We find that the evidence presented was sufficient to warrant the instruction and that the jury in this instance was given proper direction in order to render a fair verdict. Therefore, we find no reversible error in the allowance of the jury instruction in question.

III. Whether the trial court erred in overruling APAC’s objection to Johnson’s counsel’s improper redirect.

¶ 27. APAC argues that the trial court erred in allowing counsel for Johnson to ask Johnson questions regarding her alleged pain and suffering during redirect examination, as the line of questioning was outside the scope of APAC’s cross-examination. Johnson responded that APAC did cross-examine her with respect to future pain and suffering, including ongoing mental anguish.

¶ 28. “The redirect examination of witnesses rests lai'gely in the discretion of the trial court.” Cole v. Tuttos, 228 Miss. 815, 821, 90 So.2d 32, 35 (1956). However, questioning during “redirect examination should generally be limited to matters brought out during cross-examination.” Bowman v. CSX Transp., Inc., 931 So.2d 644, 664(¶ 81) (Miss.Ct.App.2006) (citing Hughes v. State, 735 So.2d 238, 269 (¶ 130) (Miss.1999)).

¶ 29. During cross-examination, counsel for APAC specifically asked Johnson about the mental suffering that she claimed she still had, as follows:

Q. Ms. Johnson, I’d like to ask you a few questions, too. You were just talking about you were sometimes scared to drive places with people, or even ride with some people, and driving bothers you sometimes, and that’s causing you mental problems.
A. No.
Q. Well, let me—
A. I said I do drive, but when I’m driving or when some — I don’t drive as much as I used to. I don’t take myself places like I — just jump in the car and say I’m going. I ride with my children, or with my husband, or whoever, and I don’t like to drive beside big cars, big trucks, or close to the curb, and it has — does bother me. I want them, you know, to go the speed limit, you know, or below the speed limit.
Q. Are you claiming that that’s mental-type suffering? Is that what you are saying?
A. To me, yes, it is.

Counsel also questioned Johnson about her deposition and her testimony regarding any permanent impairment, as follows:

Q.... Did you not answer no when you were asked several times by Ms. Bermel did you have any permanent impairment or permanent restrictions on your activity, and you said no? You mentioned the doctors hadn’t told you that. If you need to elaborate, yes, ma’am.
A. No, the doctor had not — a doctor has not told me that now, but me being me, and I know myself, my pain is ongoing. It has not stopped. She asked me the question was that — did I have any — was I having any pain at that túne. That time had done passed from then. If you have pain today, it don’t mean you’re not going to have pain tomorrow. Now, that’s the way I took the question.

¶ 30. We find that APAC sufficiently addressed the topic of Johnson’s alleged pain and suffering to allow the line of questioning on redirect. We find no error in the trial court's overruling of APAC’s objection to the redirect questioning. This assignment of error is without merit.

IV. Whether the trial court erred in not granting APAC’s motion for a new trial as Johnson’s closing arguments were improper and misled the jury.

¶ 31. The purpose of closing arguments is to aid the jury in evaluating and applying the evidence, and any “appeals to passion or prejudice are improper and should not be allowed.” Woods v. Burns, 797 So.2d 331, 334(¶ 7) (Miss.Ct.App.2001) (quoting Shell Oil Co. v. Pou, 204 So.2d 155, 157 (Miss.1967)). The Mississippi Supreme Court has held:

While an attorney making a closing argument may not make remarks which are unfairly calculated to arouse passion or prejudice, and while we do not condone appeals to sectional prejudices of the jury, the control of such argument is left largely to the discretion of the trial judge, who is in a much better position to observe and determine what is improper.

Kroger Co. v. Scott, 809 So.2d 679, 686(¶ 17) (Miss.Ct.App.2001) (quoting James W. Sessums Timber Co., Inc. v. McDaniel, 635 So.2d 875, 882 (Miss.1994)).

¶ 32. APAC alleges that Johnson’s counsel made improper comments at beginning of his closing statements which constituted error and misled the jury. Counsel for Johnson stated:

I submit to you that we would not even be here at all if the corporation, APAC, and Mr. Ortega had in a meaningful way apologized, said they’re sorry and followed up on it. Brenda and Fred do not want to be here. They didn’t want to file this lawsuit, but they have to protect the interests of their family, their children. They provide for each other, you heard, so I submit to you we would not be here if we had had a mere apology. That’s all. That’s all....

We agree that counsel’s comments regarding an apology were not proper. However, APAC made a contemporaneous objection at trial, which was sustained by trial judge who instructed the jury to disregard counsel’s comments regarding the apology. “Generally, when an objection is sustained by the judge due to unacceptable state-merits by an attorney or a witness, and the jury is instructed to ignore such statements or testimony, an appellate court will not find error.” Wright v. State, 805 So.2d 577, 581(¶ 12) (Miss.Ct.App.2001). Only when the effect of the statement is so prejudicial that “no amount of subsequent admonition from the trial judge would be likely to eradicate from the jury’s mind the prejudicial effect, [will] we reverse^]” Id. We find that the closing statements by Johnson’s counsel did not rise to this level; therefore, we find that the improper comments were harmless error.

¶ 33. APAC also contests that several other portions of Johnson’s closing statements constituted plain error. In order to determine whether plain error exists, we must ascertain “whether there is an error that is some deviation from a legal rule, whether that error is plain, clear or obvious, and whether the error is prejudicial in its effect upon the outcome of the trial court proceedings.” Taylor v. State, 754 So.2d 598, 603(¶ 11) (Miss.Ct.App.2000). For example, APAC says that Johnson should not have made a negative inference as to why Dr. Rutkowski, whose examination of Johnson did not reflect evidence of a fracture, was not called as a 'witness. APAC also directs this Court to other specific instances; however, we observe that after its initial objection, which we have already addressed, APAC made no further objections during the closing arguments. “Failure to raise a contemporaneous objection constitutes a waiver of the issue on appeal.” Kroger Co., 809 So.2d at 686(¶ 18). In its brief, APAC reasons that continual objections to improper comments would have been detrimental to their defense, and this Court should deem Johnson’s closing arguments to be “wholesale prejudicial error.” We find this argument unpersuasive. We cannot see where further objections would have prejudiced APAC in this regard, nor do we find that Johnson’s closing arguments affected the substantive rights of APAC. See Taylor, 754 So.2d at 603(¶ 11). Consequently, we find APAC’s further assignments of error in regard to the closing arguments are waived.

V. Whether the trial court erred in not granting a new trial or remit-titur.

¶ 34. The Mississippi Supreme Court has held that:

Where an appellant challenges a jury verdict as being against the overwhelming weight of the evidence or the product of bias, prejudice or improper passion, this Coui't will show great deference to the jury verdict by resolving all conflicts in the evidence and every permissible inference from the evidence in the appellee’s favor.

Wal-Mart Stores, Inc. v. Johnson, 807 So.2d 382, 389(¶16) (Miss.2001). Therefore, this Court will not set aside a jury verdict unless “the jury was improperly instructed, misled, confused, or ignore[d] the weight of the evidence.” Jackson ex rel. Heirs of Jackson v. Daley, 739 So.2d 1031, 1039(¶ 28) (Miss.1999). We find that the jury award was supported by the evidence presented; therefore, the trial court did not err by denying APAC’s motion for a new trial or remittitur.

¶ 35. APAC claims that the trial court erred in not granting a remitti-tur and requests that this Court suggest a remittitur. Mississippi Code Annotated section 11-1-55 provides the standard for when a remittitur, or additur, for damages is appropriate. That statute states:

The supreme court or any other court of record in a case in which money damages were awarded may overrule a motion for new trial or affirm on direct or cross[-]appeal, upon condition of an addi-tur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence. If such additur or remittitur be not accepted!,] then the court may direct a new trial on damages only. If the addi-tur or remittitur is accepted and the other party perfects a direct appeal, then the party accepting the additur or remittitur shall have the right to cross[-]appeal for the purpose of reversing the action of the court in regard to the additur or remittitur.

Id. Whether a jury award is excessive is determined on a case-by-case basis, and this Court will not disturb a jury award unless the amount, in comparison to the actual damages, “shocks the conscience” of the court. Entergy Miss., Inc. v. Bolden, 854 So.2d 1051, 1058(¶ 20) (Miss.2003). In other words, the question is whether the verdict is “so excessive or inadequate as ... to indicate bias, passion and prejudice on the part of the jury, or [did] the jury fail[] to respond to reason.” Walker v. Gann, 955 So.2d 920, 931(¶38) (Miss.Ct.App.2007) (citation omitted).

¶ 36. APAC stated at trial that Johnson should only be awarded approximately $20,000; Johnson suggested a damage award of $400,000 to $600,000. The jury awarded Johnson $350,000 in damages, and APAC submits that this award, which was approximately 27.7 times the actual medical costs of $12,621.34 that Johnson incurred, was excessive and not supported by the evidence. APAC supports its contention by citing to Stringer v. Crowson, 797 So.2d 368 (Miss.Ct.App.2001), a ease in which this Court upheld a trial court’s remittitur of $7,500, from a jury verdict of $30,000. The facts in that case showed that Stringer, who did not seek medical treatment until six days after her accident, suffered minimal injuries, missed no work due to her injuries, and was able to conduct a normal life. Id. at 369(¶ 2), 371(¶ 8). In addition, Stringer only incurred approximately $500 in medical expenses. Id. at 370(¶ 2).

¶ 37. That is not the case here. Johnson had to be pulled from her car with the' “jaws of life,” was sent by ambulance to the University Medical Center suffering from fractures in her vertebrae, and wore a neck brace for at least five weeks. Johnson testified that she has experienced ongoing neck pain, has had trouble sleeping, and has been on some form of pain medication ever since the accident — both over-the-counter and prescription. Further, Johnson stated that she had to decrease her participation in several activities — attending college, being a band booster (i.e., assisting the local high school band with fund raisers, ordering t-shirts, chaperoning band trips), and taking care of her grandchild — due to the pain she was experiencing.

¶ 38. As to the amount of damages, we find the award of 27.7 times the amount of medical expenses does not raise an automatic presumption that the award was excessive. “Due to the uncertainty of the monetary value placed on pain and suffering and future damages, [this Court] ha[s] affirmed damages up to fifty-one times the actual damages shown.” Kroger Co., 809 So.2d at 684(¶ 11) (citations omitted). Although we recognize that “the sky is not the limit with regard to jury verdicts,” we afford a jury “broad leeway” when it comes to an award of damages. Cade, 771 So.2d at 410(¶ 20).

¶ 39. We find that the evidence of Johnson’s fractured vertebrae, ongoing pain, and limitation of her former activities does not warrant setting aside the jury verdict as “so excessive ... to indicate bias, passion and prejudice on the part of the jury[.]” See Walker, 955 So.2d at 931(¶ 38). Therefore, we find that the trial court did not err in denying APAC a new trial or remittitur.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE AND ROBERTS, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., NOT PARTICIPATING.

      . As APAC represented Ortega at trial, we will collectively reference him with APAC, where appropriate.

      . Johnson testified that she wore the collar until the first of November (approximately eight weeks).

      . Exhibit P-7 introduced into evidence at trial, without objection, contained a report from radiologist Dr. Allen Yates at Delta Regional Medical Center which stated that Johnson had "distracted fractures of the posterior neural spines at C6 and Cl.” It also noted that the details of this report were personally communicated to Dr. McLeod.


author: ROBERTS, J., for the court.

text:
    Shaun Derrell SPRATT, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-CA-00791-COA.
    Court of Appeals of Mississippi.
    March 24, 2009.
    Rehearing Denied Aug. 18, 2009.
    J. Dudley Williams, Aberdeen, attorney for appellant.
    Office of the Attorney General by Lisa Lynn Blount, Lisa Lynn Blount, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J., for the court.

¶ 1. Shaun Derrell Spratt pled guilty to selling cocaine. The Monroe County Circuit Court sentenced Spratt to twenty years in the custody of the Mississippi Department of Corrections (MDOC), with all but three years suspended, followed by five years of post-release supervision. Spratt served his sentence and was on post-release supervision when his supervising officer filed a petition to revoke his post-release supervision and to order Spratt to serve his suspended sentence. During the revocation hearing, Spratt admitted that he had violated the terms of his post-release supervision. Consequently, the circuit court revoked Spratt’s post-release supervision and ordered, among other things, that Spratt was to serve a portion of his suspended sentence. However, the circuit court’s written order reflected a different basis for finding Spratt in violation of the terms of his post-release supervision. What is more, the written order reflected a basis for revocation that the circuit court expressly declined to find during the revocation hearing. To be precise, the written order stated that Spratt violated the terms of his post-release supervision by failing to pay court costs, failing to report to his supervising officer, and failing to pay supervision fees. In contrast, during the revocation hearing, the circuit court expressly found that Spratt met those obligations. Spratt filed a petition for post-conviction relief and claimed that the circuit court should set aside the circuit court’s revocation and subsequent sentencing order. The circuit court denied Spratt’s petition. Aggrieved, Spratt appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On September 13, 2001, Spratt pled guilty to selling cocaine. The Monroe County Circuit Court sentenced Spratt to twenty years in the custody of the MDOC, with seventeen years suspended and three years to serve, followed by five years of post-release supervision. Spratt began his term of post-release supervision after he served approximately two and a half years of his three-year sentence.

¶ 3. However, on February 7, 2007, Spratt’s supervising officer filed a petition to revoke Spratt’s post-release supervision and to impose Spratt’s suspended sentence. The circuit court conducted a revocation hearing. During that hearing Spratt admitted that he had tested positive for marijuana four times between February 17, 2005, and January 11, 2007. Additionally, Spratt admitted that he had received a ticket for having an insufficient child-restraint device on January 10, 2007. Spratt also admitted that he was charged with having an unprescribed Lortab tablet on that date. Finally, Spratt admitted that he also had a nine-millimeter pistol in his possession on January 10, 2007.

¶ 4. Having heard the evidence, the circuit court found that Spratt violated the terms of his post-release supervision. The circuit court ordered Spratt to serve his seventeen-year suspended sentence, with ten years suspended and seven years to serve, followed by five years of post-release supervision.

¶ 5. Spratt subsequently filed a petition for post-conviction relief. According to Spratt, his sentence constituted cruel and unusual punishment. Additionally, Spratt raised the following allegations:

Petitioner would show that the conviction or the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of Mississippi; That the trial [e]ourt was without jurisdiction to impose [the] sentence; That the statute under which the conviction and/or sentence was obtained is unconstitutional; That the sentence exceeds the maximum authorized by law; That there exists evidence of material facts, not previously presented and heard[,] that requires vacation of the conviction or sentence in the interest of justice; That his plea was made involuntarily; That his sentence has expired; His probation, parole or conditional release was unlawfully revoked and he is otherwise unlawfully held in custody; [o]r [T]hat the conviction or sentence is otherwise subject to collateral attack upon any grounds of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding or remedy.

Spratt’s generic laundry list of allegations notwithstanding, the crux of his argument was that the basis in the circuit court’s order for revoking his post-release supervision did not correspond to the circuit court’s decision during the revocation hearing. The circuit court denied Spratt’s petition. Aggrieved, Spratt appeals.

STANDARD OF REVIEW

¶ 6. The standard of review this Court must employ upon a review of a trial court’s denial of a petition filed pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act, Mississippi Code Annotated sections 99-39-1 to -29 (Rev.2007) is well settled and has been stated by the supreme court as follows:

When reviewing a lower court’s decision to deny a petition for post[-]conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised!,] the applicable standard of review is de novo. Lambert v. State, 941 So.2d 804, 807 [ (¶ 14) ] (Miss.2006) (quoting Brown v. State, 731 So.2d 595, 598 [ (¶ 6) ] (Miss.1999); see also Bank of Miss. v. S. Mem’l Park, Inc., 677 So.2d 186, 191 (Miss.1996)).

Callins v. State, 975 So.2d 219, 222(¶ 8) (Miss.2008) (internal quotations omitted).

ANALYSIS

¶ 7. According to Spratt, the violations addressed during the revocation hearing “were set out as a basis for revocation of [his] post-release supervision in the [circuit court’s] revocation [o]rder.” Spratt is correct, as the circuit court’s order states that Spratt violated the terms of his suspended sentence by (1) failing to pay court costs as directed, (2) failing to report as directed, and (3) failing to pay supervision fees as directed. During the revocation hearing, the circuit court specifically found that, aside from one instance in which Spratt failed to report to his supervising officer, Spratt met as ordered and “paid as ordered.” It is clear that the discrepancy in the circuit court’s oral pronouncements and the written revocation order are nothing more than scrivener’s errors.

¶ 8. In Willcutt v. State, 910 So.2d 1189, 1196(¶ 21) (Miss.Ct.App.2005), this Court found that a sentencing order did not reflect a sentence that was announced during a hearing on a motion to vacate a judgment and sentence. This Court went on to hold as follows:

Perhaps it was a scrivener’s error that caused the incongruity between the sentence announced at the hearing and the sentence reflected in the amended sentencing order. In any event, the trial judge should be given an opportunity to correct the error, and we remand this case to him for entrance of a proper order in conformity with the sentence given at the hearing on the motion to vacate judgment and sentence.

Id. We find that the discrepancy in the circuit court’s oral basis for revocation and the basis set forth in the revocation order calls for the same course of action described in Willcutt. We find no reversible error and affirm the judgment of the circuit court. However, we must remand this matter to the circuit court for entry of a proper order that conforms with the basis for revocation as stated during the revocation hearing.

¶ 9. THE JUDGMENT OF THE MONROE COUNTY CIRCUIT COURT DENYING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONROE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR. MAXWELL, J., NOT PARTICIPATING.