author: LEE, C.J., GRIFFIS, P.J.,

text:
    Barbara LEWIS, Individually, As Administratrix for the Estate of R.J. Lewis, and on behalf of the Wrongful Death Beneficiaries for the Estate of R.J. Lewis, Appellant, v. FOREST FAMILY PRACTICE CLINIC, P.A. and John Paul Lee, M.D., Appellees.
    No. 2011-CA-00828-COA.
    Court of Appeals of Mississippi.
    Jan. 29, 2013.
    Rehearing Denied June 11, 2013.

      James Howard Thigpen, attorney for appellant.
    Mildred M. Morris, Timothy Lee Sensing, Jackson, John Burley Howell III, attorneys for appellees.
   LEE, C.J.,

for the Court:

¶ 1. This appeal concerns whether service of process was properly issued in a wrongful-death suit. The trial court found service of process was insufficient. We agree but find good cause existed for the failure to serve process within the proper time.

FACTS AND PROCEDURAL HISTORY

¶ 2. R.J. Lewis was a patient of Dr. John Paul Lee. R.J. died on March 23, 2008. On June 1, 2010, Barbara Lewis (Lewis) on behalf of R.J.’s wrongful-death beneficiaries filed suit in Scott County Circuit Court against Dr. Lee and Forest Family Practice (FFP), alleging that their acts and omissions in providing care to R. J. had caused his death. Summons were issued, and Dr. Lee and FFP were served with process. The proofs of service state that on September 21, 2010, process server Gary Windham personally served Dr. Lee with process, individually and in Dr. Lee’s capacity as registered agent for FFP.

¶ 3. Dr. Lee and FFP subsequently filed a motion to dismiss, in which they alleged service of process was insufficient. Dr. Lee and FFP contended that process had been improperly delivered to Winnie McMullan, an office clerk at FFP. According to Dr. Lee, McMullan was not authorized to accept service of process for either Dr. Lee or FFP.

¶ 4. After a hearing on the matter, the trial court granted Dr. Lee and FFP’s motion and dismissed Lewis’s claims with prejudice. Lewis now appeals, asserting the following issues: (1) the trial court applied the incorrect legal standard; (2) service of process was sufficient; (3) public policy supports the presumption that an officer’s return of process is correct; and (4) good cause exists for Lewis to be allowed additional time to serve Dr. Lee and FFP with process.

STANDARD OF REVIEW

¶ 5. We review de novo a trial court’s decision to grant or deny a motion to dismiss. Johnson v. Rao, 952 So.2d 151, 154 (¶ 9) (Miss.2007). Furthermore, “the trial court, not the jury, determines issues of fact regarding service of process, and we apply an abuse-of-discretion standard to the trial court’s findings of fact.” Nelson v. Baptist Mem’l Hosp.-N. Miss., Inc., 70 So.3d 190, 195 (¶ 17) (Miss.2011).

DISCUSSION

I. PROPER LEGAL STANDARD

II. SUFFICIENCY OF SERVICE OF PROCESS

III. PUBLIC-POLICY ARGUMENT

¶ 6. As the first three issues address whether the facts offered by Dr. Lee overcome the presumption that a return of process is presumed correct, we will address them together. A return of service gives rise to a presumption that service was proper; however, that presumption can be rebutted. See McCain v. Dauzat, 791 So.2d 839, 842 (¶ 8) (Miss.2001). According to Rule 4(d)(1)(A) of the Mississippi Rules of Civil Procedure, service of process upon an individual is accomplished “by delivering a copy of the summons and of the complaint to him personally or to an agent authorized by appointment or by law to receive service of process.” Rule 4(d)(4) states that service of process upon a corporation is accomplished “by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process.”

¶ 7. Windham testified that his proof of service indicates he served Dr. Lee with process. However, Windham had no independent recollection of doing so. Wind-ham stated that he served process on average between ten and twelve times per day. Windham’s affidavit says he personally served Dr. Lee individually and as registered agent for FFP, but no one else.

¶ 8. McMullan testified she was working as a cashier at FFP on September 21, 2010. McMullan stated early that morning a man entered FFP, handed her some documents, and told her they were for Dr. Lee. McMullan identified the man as Windham. She replied to Windham that she would give Dr. Lee the documents. Windham then left FFP. McMullan testified Windham did not ask to see Dr. Lee or an authorized agent for FFP nor did Windham inform her he was there to serve process on Dr. Lee or FFP. McMullan said she had not been authorized to accept service on behalf of Dr. Lee or FFP. McMullan subsequently handed the documents to the office manager. McMullan executed an affidavit stating the same. Dr. Lee testified that he did not meet Windham or receive any documents from him on September 21, 2010. Dr. Lee further stated McMullan was not authorized to accept service of process on his or FFP’s behalf. Dr. Lee executed an affidavit stating the same.

¶ 9. Court records show that summons were issued to FFP with Dr. Lee listed as its registered agent. The record contains no evidence McMullan was an officer, a managing agent, a general agent, or a registered agent for service of process, or was otherwise authorized to receive service of process on FFP’s or Dr. Lee’s behalf. In a similar situation, the Mississippi Supreme Court concluded that a receptionist was not the defendant physician’s agent because she was not authorized by him to accept service of process. Johnson, 952 So.2d at 158 (¶ 18); see also Nelson, 70 So.3d at 196 (¶ 20) (office manager was not an agent to accept process on behalf of physicians and medical clinic). The court further determined the testimony supported the following: the receptionist was unaware the papers she accepted concerned a lawsuit; she had .never accepted service of process for anyone; and the process server did not ask to see the physician nor indicate he was there to serve the physician with process. Johnson, 952 So.2d at 158 (¶ 18). Here, the trial court concluded that Dr. Lee and FFP were not properly served with process for similar reasons as in Johnson. We do find evidence to support the trial court’s decision in conclüding that service of process was insufficient. However, we must now look to whether good cause existed for failing to properly serve Dr. Lee and FFP.

IY. EXISTENCE OF GOOD CAUSE

¶ 10. Lewis contends that good cause exists for additional time to serve Dr. Lee and FFP with process. Rule 4(h) of the Mississippi Rules of Civil Procedure states a party must show good cause why service of process was not made within 120 days of filing the complaint. We review a trial court’s determination of whether good cause existed under our familiar abuse-of-discretion standard. Stutts v. Miller, 87 So.Bd 1, 3 (¶ 7) (Miss.2010). Lewis failed to raise this issue in the trial court. Our “role [as] an appellate court is not to be a fact[-]finder but rather [to] determine and apply the law to the facts determined by the trier of fact.” Southern v. Miss. State Hosp., 853 So.2d 1212, 1214 (¶ 4) (Miss.2003).

¶ 11. However, in Spurgeon v. Egger, 989 So.2d 901, 906 (¶ 18) (Miss.Ct.App.2007), this Court found good cause existed even though the issue was not addressed by the trial court. Similarly to our facts, in Spurgeon the process server completed a return and swore that he had personally served the defendant physician with process, but testimony showed that he had served the office assistant and not the physician. Id., at 904 (¶ 11). As in the present case, the office assistant had no authority to accept service of process. Id. at (¶ 12). But we found several reasons the trial court should have found good causé for the plaintiffs failure to serve the physician: (1) the process server’s sworn return indicating he served process on the physician; (2) no evidence was produced showing a lack of diligence on the part of the plaintiffs; (3) there were communications from the physician’s attorney indicating notice was received; and (4) the physician’s involvement in bankruptcy proceedings. Id. at 908 (¶ 27). Furthermore, “good cause is likely (but not always) to be found when the plaintiffs failure to complete service in a timely fashion is a result of the conduct of a third person, typically the process server[.]” Holmes v. Coast Transit Auth., 815 So.2d 1183, 1186 (¶ 12) (Miss.2002) (citation omitted).

¶ 12. In this instance, Lewis had no reason to believe that process was insufficient. Windham’s notarized proof of service indicates he had served Dr. Lee individually and as FFP’s registered agent. The attorney representing Lewis had. used Windham on numerous occasions as a process server and never had any cause for concern. Furthermore, there were indications that notice was received by Dr. Lee and FFP. We find the trial court abused its discretion in failing to find good cause for the failure to serve Dr. Lee and FFP within 120 days. We reverse and remand for further proceedings consistent with this opinion.

¶ 13. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPEL-LEES.

IRVING, P.J., ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. GRIFFIS, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY CARLTON, J.; BARNES, J., JOINS IN PART. FAIR AND JAMES, JJ., NOT PARTICIPATING.

GRIFFIS, P.J.,

CONCURRING IN PART AND DISSENTING IN PART:

¶ 14. I concur with the majority as to Issues I, II, and III. I agree that there was evidence to support the trial court’s decision to conclude that service of process was not sufficient.

¶ 15. I dissent as to Issue IV. I am of the opinion that the trial judge did not abuse his discretion when he found good cause did not exist for the failure to serve the defendants within 120 days. Indeed, I find that this issue has been waived because it was not presented to the trial court. Accordingly, I would affirm as to Issue IV.

¶ 16. Lewis’s failure to argue this issue before the trial court is a procedural bar from our review here. In Chantey Music Publishing., Inc. v. Mataco, Inc., 915 So.2d 1052, 1060 (¶ 28) (Miss.2005), the supreme court reasoned:

In Southern v. Mississippi State [Hospital], 853 So.2d 1212 (Miss.2003), we reiterated the important procedural tenet that “a trial judge cannot be put in error on a matter not presented to him.” Id. at 1214—15[;] see Mills v. Nichols, 467 So.2d 924, 931 (Miss.1985)[.] Precedent mandates that this Court not entertain arguments made for the first time on appeal as the case must be decided on the facts contained in the record and not on assertions in the briefs. Parker v. Miss. Game & Fish Comm’n, 555 So.2d 725, 730 (Miss.1989)(citing Britt v. State, 520 So.2d 1377, 1379 (Miss.1988); Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973)). Stated clearly, “it is an elementary and familiar rule that we sit to review actions of the lower courts, and we will not undertake to consider matters which do not appear of record in the lower court, absent unusual circumstances.” Cossitt v. Federated Guar. Mut. Ins. Co., 541 So.2d 436, 446 (Miss.1989)(citing Educ[.] Placement Servs. v. Wilson, 487 So.2d 1316, 1320 (Miss.1986)).

¶ 17. This Court’s failure to follow this elementary principle of appellate review in Spurgeon v. Egger, 989 So.2d 901, 906 (¶ 18), 908 (¶ 27) (Miss.Ct.App.2007), does not change the law. It only means that this Court may have erred in Spurgeon.

¶ 18. We must follow the supreme court’s holding that arguments presented for the first time on appeal are waived. Chantey Music Publ’g, 915 So.2d at 1060 (¶ 28). I am of the opinion that this issue was waived by the failure to present the issue to the trial court. For this reason, I would affirm as to Issue IV.

CARLTON, J., JOINS THIS OPINION. BARNES, J., JOINS THIS OPINION IN PART.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    SWEET VALLEY MISSIONARY BAPTIST CHURCH a/k/a Hub Community Baptist, Appellant v. ALFA INSURANCE CORPORATION a/k/a Alfa General Insurance Corporation a/k/a Alfa Mutual General Insurance Company a/k/a Alfa Specialty Insurance Corporation, Appellee.
    No. 2010-CA-01807-COA.
    Court of Appeals of Mississippi.
    March 19, 2013.

      Marc L. Frischhertz, David Lee Brewer, attorneys for appellant.
    Toby Justin Gammill, Whitney Warner Gladden, Jackson, attorneys for appellee.
   ROBERTS, J.,

for the Court:

MODIFIED OPINION ON MOTION FOR REHEARING

¶ 1. This case is before us on a motion for rehearing; the original opinion is withdrawn and substituted with this opinion. The question presented is whether a timely filed motion to alter or amend a judgment under Mississippi Rule of Civil Procedure 59(e) tolls the applicable statute of limitations for the purpose of filing a new complaint. In the previous opinion issued by this Court, we agreed with the circuit court that a Rule 59(e) motion did not toll the statute of limitations, and we affirmed the dismissal of Sweet Valley Missionary Baptist Church’s second complaint. Sweet Valley now seeks rehearing, arguing this Court’s decision was in error. Our previous decision was reached, in part, because of a lack of authority supporting Sweet Valley’s position. We now reconsider this decision. We find that despite the lack of case law directly on point, precedent suggests — and logic dictates — that a timely filed Rule 59(e) motion continues the tolling of the statute of limitations. Therefore, we reverse the circuit court’s finding that the second complaint was untimely filed.

FACTS AND PROCEDURAL HISTORY

¶2. Sweet Valley Missionary Baptist Church a/k/a HUB Community Baptist Church suffered property damage during Hurricane Katrina, which struck the Mississippi Gulf Coast on August 29, 2005. On October 14, 2005, Sweet Valley’s insurance carrier, Alfa Insurance Corporation, paid Sweet Valley $9,951.89 on its claim. Sweet Valley alleges this amount was below its policy limit and did not cover all the losses to its property. No other payment was made by Alfa on the claim.

¶ 3. On August 29, 2008, exactly three years after Hurricane Katrina, Sweet Valley filed its first complaint in the Marion County Circuit Court against Alfa, alleging breach of contract. The parties proceeded with discovery. However, according to the circuit court judge, Sweet Valley failed to cooperate in discovery, failed to adhere to the scheduling order, and failed to appear at a scheduled hearing on the matter. Further, there was a problem with one of Sweet Valley’s attorneys, Marc Frisch-hertz, being admitted pro hac vice. Frischhertz believed he had been admitted to practice pro hac vice in Mississippi, when in fact he had not. Because of these issues, the circuit court dismissed Sweet Valley’s first complaint without prejudice on July 1, 2009.

¶4. Seven days later, on July 8, 2009, Sweet Valley filed a motion to set aside the dismissal. After a hearing on the matter, the circuit court denied Sweet Valley’s motion. On the same day its motion was denied, January 29, 2010, Sweet Valley filed a new complaint against Alfa. On June 18, 2010, Alfa filed a motion to dismiss the second complaint, claiming the three-year statute of limitations had expired. The parties agreed that the statute of limitations was tolled during the pen-dency of the lawsuit; however, Alfa argued that the statute of limitations had begun to run again on July 1, 2009 — the date the motion to dismiss was granted. Sweet Valley countered that the statute of limitations had continued to be tolled until January 29, 2010 — the date its motion to set aside the dismissal was denied. The circuit court agreed with Alfa that the statute of limitations had begun running again on July 1, 2009. The circuit court determined that, as of July 1, 2009, there were forty-six days remaining on the three-year statute of limitations, making the statute of limitations expire on August 16, 2009. Since-Sweet Valley’s second complaint was not filed until January 29, 2010, the circuit court dismissed the complaint as untimely. It is from the dismissal of this second complaint that Sweet Valley now appeals.

¶ 5. On rehearing, Sweet Valley asserts again that its second complaint was timely filed. We agree. The judgment of the circuit court dismissing the second complaint is reversed, and this case is remanded for reinstatement on the circuit court’s docket.

STANDARD OF REVIEW

¶ 6. When reviewing a circuit court’s grant or denial of a motion to dismiss, this Court applies a de novo standard of review. Scaggs v. GPCH-GP Inc., 931 So.2d 1274, 1275 (¶ 6) (Miss.2006). Issues concerning the statute of limitations are questions of law, which are reviewed de novo. Lincoln Elec. Co. v. McLemore, 54 So.Sd 833, 835 (¶ 10) (Miss.2010).

DISCUSSION

I. JURISDICTION

¶ 7. Although not raised by either party, we must first address whether this Court has jurisdiction to hear this matter, as the motion for rehearing was untimely filed.

¶ 8. Mississippi Rule of Appellate Procedure 40(a) states that “[a] motion for rehearing may be filed within Ik days after a decision is handed down on the merits of a case by the Supreme Court or the Court of Appeals.” (Emphasis added). The opinion for which Sweet Valley seeks rehearing was handed down on the merits by this Court on June 19, 2012. The motion for rehearing was filed on July 25, 2012 — outside the fourteen-day time period.

¶ 9. It appears Sweet Valley erroneously believed it was timely filing the motion based on a letter- it received from the Clerk of the - Court dated July 10, 2012. This is the date the mandate issued. The mandate is issued as directed by Mississippi Rule of Appellate Procedure 41(b), which states: “Unless otherwise ordered, the mandate of the Court of Appeals shall issue 21 days after the latest of: the entry of judgment; the disposition of a timely motion for rehearing; or the denial or dismissal of a petition for certiorari review in the Supreme Court.” Because fourteen days passed and no rehearing was filed, nor was there a motion for additional time to file for rehearing, the Clerk of the Court issued the mandate twenty-one days after the judgment of this Court.

¶ 10. We would ordinarily lack jurisdiction because Sweet Valley failed to comply with Rule 40(a). However, in cases where we deem justice so requires, this Court “may suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction....” M.R.A.P. 2(c). Because this matter is of significant importance in setting precedent, we find it necessary to suspend the rules and consider the merits of this case. Thus, we use our authority under Rule 2(c) to recall the mandate and issue a modified opinion on rehearing.

II. STATUTE OF LIMITATIONS

¶ 11. Sweet Valley contends the circuit court erred in finding the statute of limitations had expired before the motion to set aside the judgment was decided. Sweet Valley argues the statute of limitations was tolled by the filing of that motion on July 8, 2009, and continued to be tolled until January 29, 2010, when it was ruled on by the circuit court. Although the motion is not included in the record, Sweet Valley claims its motion was filed pursuant to Mississippi Rule of Civil Procedure 59(e). Since, the motion was filed within ten days of the July 1, 2009 dismissal and called into question the correctness of the judgment, we presume the motion was filed under Rule 59(e) as a motion to alter or amend the judgment. See Bruce v. Bruce, 587 So.2d 898, 904 (Miss.1991) (“[WJhere a motion calls into question the correctness of all or. any part of a judgment ... and where the motion is filed within the time allowed by Rule 59, we will presume that the motion has been filed under Rule 59 without regard to how it may be styled.”).

¶ 12. Sweet Valley offers no law to support its argument that the Rule 59(e) motion continued to toll the statute of limitations. This Court also has been unable to find support for this argument. Likewise, we can find no support for an argument to the contrary. We find the lack of precedent does not make Sweet Valley’s argument without merit; rather, it simply appears that this particular issue has not reached the appellate level in Mississippi.

¶ 13. Regarding the effects of Rule 59(e) motions in other matters, the Mississippi Supreme Court has held that Rule 59(e) motions stay the thirty-day time period to appeal and the enforceability of judgments. See Bruce, 587 So.2d at 903. This is because “Rule 59(e) motions go to the heart of the matter to those issues predicate to a decision on the merits.” Bruce, 587 So.2d at 903 (citing Finch v. City of Vernon, 845 F.2d 256, 258-59 (11th Cir.1988)). When a party files a Rule 59 motion after a notice of appeal has been filed, “[t]he appeal simply self-destructs.” Bruce, 587 So.2d at 901 (quoting 9 Moore’s Federal Practice ¶ 204.12[1], p. 4-70, n. 17 (1989)). A Rule 59 motion “stays the judgment and relates back, for all purposes resetting the appeals clock to the moment that judgment was entered and holding it there pending the motion.” Bruce, 587 So.2d at 901. In discussing the finality of verdicts in civil matters, the United States Supreme Court has stated the following in terms of the identically worded federal rules:

Rule 4(a)(4). of the Federal Rules of Appellate Procedure provides that a notice of appeal filed before or while a timely Rule 59(e) motion is pending has no effect. Together, these Rules work to implement the finality requirement by preventing the filing of an effective notice of appeal until the District Court has had an opportunity to dispose of all motions that seek to amend or alter what otherwise might appear to be a final judgment.

Bruce, 587 So.2d at 901 (quoting Osterneck v. Ernst & Whinney, 489 U.S. 169, 173-74, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989)).

¶ 14. This is unlike a motion under Mississippi Rule of Civil Procedure 60(b) for relief from a judgment, which does not toll the time for appeal or enforceability of a judgment. Bruce, 587 So.2d at 903. A Rule 60(b) motion may be filed later than ten days after a judgment and seeks relief due to fraud, misrepresentation, or other misconduct of an adverse party. While Rules 59(e) and 60(b) overlap, “Rule 60(b) is for extraordinary circumstances, for matters collateral to the merits, and affords a much narrower range of relief than Rule 59(e).” Bruce, 587 So.2d at 903. “Rule 60(b) motions ... proceed on the assumption that the trial court has entered a valid and enforceable judgment which has become final.” Bruce, 587 So.2d at 904. In Davis v. Biloxi Public School District, 43 So.3d 1135, 1138 (¶¶ 9-10) (Miss.Ct.App.2009), we specifically found that pending Rule 60 motions do not toll the statute of limitations.

¶ 15. It stands to reason that if a Rule 59 motion tolls the time for appeal and the enforceability of a judgment, it would also toll the statute of limitations. Unlike Rule 60 motions, Rule 59(e) motions go directly to the merits of a decision and affect its finality. As stated by the Supreme Court in Ostemeck, a judgment is not final until the court has disposed of the pending Rule 59 motion. Ostemeck, 489 U.S. at 173-74, 109 S.Ct. 987. Until then, the judgment “might appear to be a final judgment,” but it is not final. Id. Further, it would not be in the best interest of judicial economy to force litigants with an impending statute of limitations to file a new complaint without first having the option to move to alter or amend the judgment. If a plaintiff were to risk waiting on the disposition of a Rule 59(e) motion when the statute of limitations was drawing near, the plaintiff would be left with no remedy if the plaintiff did not prevail on the motion and the statute of limitations had run. Filing a new complaint while a motion is pending in the first matter is not an option, as the second complaint would be dismissed based on the principle of priority jurisdiction. See Parmley v. Pringle, 976 So.2d 422, 426 (¶ 15) (Miss.Ct.App.2008). Because it is consistent with our law and would otherwise leave a plaintiff with no remedy, we find a timely filed motion to alter or amend the judgment under Rule 59(e) continues the tolling period of the applicable statute of limitations.

¶ 16. Having found the statute of limitations was tolled until the circuit court ruled on Sweet Valley’s Rule 59(e) motion, we find the second complaint was timely filed. The three-year statute of limitations began to run on October 14, 2005, when Alfa allegedly only partially paid Sweet Valley’s claim. Sweet Valley filed its original complaint on August 29, 2008, forty-six days prior to the expiration of the statute of limitations. The statute of limitations was tolled until the case was dismissed on July 1, 2009. The statute of limitations was further tolled by the Rule 59 motion, which was denied on January 29, 2010. Sweet Valley filed its second complaint the same day the motion was denied; thus, the second complaint was within the statute of limitations.

¶ 17. We find the circuit court erred in dismissing Sweet Valley’s complaint filed on January 29, 2010. Thus, the judgment of the circuit court is reversed, and this case is remanded for reinstatement on the docket.

¶ 18. THE JUDGMENT OF THE MARION COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR REINSTATEMENT ON THE CIRCUIT COURT’S DOCKET. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL AND FAIR, JJ„ CONUR. JAMES, J., NOT PARTICIPATING.


author: ISHEE, J.,

text:
    Benjamin D. ALEXANDER, Appellant v. NEWTON COUNTY, Mississippi, Appellee.
    No. 2012-CA-00060-COA.
    Court of Appeals of Mississippi.
    April 23, 2013.
    Rehearing Denied Sept. 3, 2013.
    Certiorari Denied Oct. 31, 2013.

      Ranee N. Ulmer, attorney for appellant.
    Roy Jefferson Allen, attorney for appel-lee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Benjamin D. Alexander filed a negligence suit against Newton County,‘Mississippi. After three years of litigation, Newton County was granted summary judgment based on governmental immunity under the Mississippi Tort Claims Act (MTCA). Alexander now appeals the grant of summary judgment in favor of Newton County, arguing the County waived the affirmative defense of immunity by failing to pursue the defense and participating in litigation for nearly three years. We agree with Alexander that tort immunity was waived and reverse the grant of summary judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. On August 6, 2007, Alexander was driving west on a gravel road in Newton County. As he topped a hill, he encountered a road grader that was backing up, headed east in his same lane. Alexander swerved, and his pickup truck came to rest in a culvert on the opposite side of the road. Alexander’s vehicle did not make impact with the road grader.

¶ 8. On November 21, 2008, Alexander filed a complaint in the Newton County Circuit Court alleging personal injuries and property damage due to the negligence of Newton County and its employee. Alexander alleged the road grader’s driver, a County employee who was acting within the course and scope of his employment, had acted negligently by backing up in the road and failing to keep a proper lookout. Alexander also asserted any other acts of negligence that may have been revealed through discovery. The County answered and alleged various defenses, including immunity under the MTCA.

¶ 4. Over the next three years, discovery took place, depositions were taken, and multiple continuances were granted. On October 4, 2011, the County moved for summary judgment, arguing that road maintenance, road repair, and the placement of warning signs are discretionary functions from which the County is immune under the MTCA. Aexander countered that immunity had been waived because the County had failed to pursue the affirmative defense in a timely manner. The trial court, agreeing with the County, found immunity existed under the MTCA and granted summary judgment.

¶ 5. Aexander now appeals, arguing the County waived the right to raise the issue of immunity under the MTCA because it participated in litigation for nearly three years before pursuing the defense.

STANDARD OF REVIEW

¶ 6. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories[,] and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). A de novo standard of review is applied to the grant of a motion for summary judgment. Kilhullen v. Kan. City S. Ry., 8 So.3d 168, 174 (¶ 14) (Miss.2009). When reviewing such a motion, “the evidence must be viewed in the light most favorable to the party against whom the motion has been made.” Id. (quoting Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993)). • However, the opposing party “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e).

DISCUSSION

¶ 7. The parties agree that Aexander’s negligence action against Newton County is governed by the provisions of the MTCA. See Miss.Code Ann. § 11-46-7 (Rev.2012). The MTCA is the exclusive remedy for claims against governmental entities and their employees. Id. The MTCA provides specific exemptions from tort liability. Miss.Code Ann. § 11-46-9 (Rev.2012). Relevant to this case, section 11^46-9(l)(d) states:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused....

The definition of “governmental entity” includes political subdivisions, and a county is a political subdivision. Miss.Code Ann. § 11-46-1 (g), (i) (Rev.2012).

¶ 8. Athough the County qualified for immunity from Aexander’s suit under the provisions of the MTCA, it was the County’s duty to pursue this defense. Immunity under the MTCA is an affirmative defense that must be specifically pled in order not to be waived. Estate of Grimes ex rel. Grimes v. Warrington, 982 So.2d 365, 370 (¶ 24) (Miss.2008). “A defendant’s failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver.” E. Miss. State Hosp. v. Adams, 947 So.2d 887, 891 (¶ 10) (Miss.2007) (quoting Miss. Credit Ctr., Inc. v. Horton, 926 So.2d 167, 180 (¶ 44) (Miss.2006)). “To pursue an affirmative defense or other such rights, a party need only assert it in a pleading, bring it to the court’s attention by motion, and request a hearing. Once a hearing is requested, any delay by the trial court in holding the hearing would not constitute a waiver.” Horton, 926 So.2d at 181 n. 9.

¶ 9. The County raised the immunity defense on December 22, 2008, in its answer to Alexander’s complaint. The answer asserted sixteen defenses, with defenses five through nine relating to MTCA immunity. The next time this defense was raised was on October 4, 2011, in the County’s motion for summary judgment. Between December 2008 and October 2011, the County participated in discovery, including filing for interrogatories, requests for production of documents, and requests for admissions. The County participated in several depositions scheduled by Alexander, including those of Alexander, the road-grader operator, and Alexander’s two neurosurgeons. In October 2010, the County subpoenaed Alexander’s medical records, and in June 2011, the County filed a motion to compel Alexander’s cellphone number, his medical records, and his financial records. The record reflects this case was set for trial nine different times, with at least six agreed orders of continuance being signed by the parties. One motion for continuance was objected to by the County. On July 2, 2011, in preparation for trial, the County filed a motion in limine to exclude various testimony and evidence. On July 31, 2011, counsel for the County sent Alexander’s counsel a letter requesting a settlement offer.

¶ 10. Alexander argues the County’s actions over the course of nearly three years waived its right to assert immunity as a defense. Alexander cites to the following Mississippi Supreme Court cases in support of his argument: Grimes, 982 So.2d 365; Adams, 947 So.2d 887; Horton, 926 So.2d 167; and Stuart v. University of Mississippi Medical Center, 21 So.3d 544 (Miss.2009).

¶ 11. In Grimes, the plaintiff filed a wrongful-death complaint against a doctor who was employed at a hospital covered by the MTCA. Grimes, 982 So.2d at 367 (¶ 10). The doctor answered the complaint and raised the affirmative defense of tort immunity under the MTCA as his seventh affirmative defense, but he did not actively pursue the defense. Id. at 366 (¶ 4). After participating in discovery and trial preparation for five years, the doctor moved for summary judgment based on MTCA immunity. Id. at (¶ 5). The motion was granted by the trial court. Id. at (¶ 6). However, on appeal, the supreme court reversed, finding that the five-year delay was unreasonable because all the evidence needed to raise the defense was available from the inception of the case. Id. at 370 (¶ 26). The supreme court held that the doctor’s “failure actively and specifically to pursue his MTCA affirmative defense while participating in the litigation served as a waiver of the defense.” Id. at (¶ 27).

¶ 12. Adams, Horton, and Stuart are not MTCA cases, but they offer relevant analysis. In Adams, the defendants waited two years after the plaintiffs’ complaint was filed before seeking dismissal based on insufficiency of process and insufficiency of service of process. Adams, 947 So.2d at 889 (¶¶ 4—5). These affirmative defenses were raised in the defendants’ answer, but the trial court found this was insufficient. Id. at 889-90 (¶ 6). On appeal, the supreme court agreed, holding that the failure to actively pursue the defenses for two years, coupled with active participation in litigation, served to waive the defenses of insufficiency of process and insufficiency of service of process. Id. at 891 (¶¶ 11-12). In Horton, the defendants asserted their right to compel arbitration as an affirmative defense in their answer, but they waited eight months before filing a motion to compel arbitration or requesting a hearing. Horton, 926 So.2d at 180 (¶ 41). The supreme court found the defendants’ eight-month delay in pursuing the defense, coupled with active participation in litigation, waived the right to compel arbitration. Id. at (¶ 42). Finally, in Stuart, the plaintiff filed a wrongful-death suit but failed to comply with the notice provisions of the MTCA. Stuart, 21 So.3d at 546 (¶ 1). The defendant did not assert its defense until over two years after the complaint was filed. Id. at 548 (¶ 8). In finding the defense was waived, the supreme court stated that the delay in asserting the defense, while participating in litigation, was “unreasonable and inexcusable.” Id. at (¶ 9).

¶ 13. The facts of these cases are similar to the case at hand. The County raised the affirmative defense of immunity in its answer, but it waited nearly three years before pursuing the defense in a motion for summary judgment. The County argues the delay was excusable because it had to participate in litigation to establish a factual basis for immunity under the MTCA. For immunity under the MTCA to apply, the claim must involve “a discretionary function or duty on the part of a governmental entity or employee thereof....” Miss.Code Ann. § 11^46-9(l)(d) (emphasis added). “A duty is discretionary when it is not imposed by law and depends upon the judgment or choice of the government entity or its employee.” Miss. Transp. Comm’n v. Montgomery, 80 So.3d 789, 795 (¶ 19) (Miss.2012). A duty is ministerial and not covered by the immunity provisions of the MTCA “if it is positively imposed by law and required to be performed at a specific time and place, removing an officer’s or entity’s choice or judgment.” Id. A two-part public-function test is used to determine whether a governmental entity is entitled to immunity. Id. at (¶ 20). First, it must be determined “whether the activity in question involved an element of choice or judgment.” Id. If so, we “must decide whether that choice or judgment involved social, economic, or political-policy considerations.” Id.

¶ 14. The trial court found that the road work being performed was a discretionary function and, thus, subject to immunity under the MTCA. Also, the trial court found that the road-grader operator was an employee of the County and was acting in the course and scope of his employment. These findings are not disputed on appeal. We agree with the County that some discovery was necessary to make these determinations. However, we find that these determinations could have been made after the depositions of Alexander and the road-grader operator. These depositions were taken on May 28, 2009; the County did not file for summary judgment until October 4, 2011. The County offers no explanation for its delay other than its argument that the Mississippi Supreme Court has never found that specific exemptions under section 11-46-9 are waivable. We find this argument is without merit.

¶ 15. After May 28, 2009, when the drivers’ depositions were taken, the County continued to participate in litigation for approximately two years and four months. All the litigation from May 28, 2009, to October 4, 2011, was related to Alexander’s injuries and economic damages. During this time the County requested Alexander’s tax returns, medical bills, medical records, therapy records, and military records. The County also requested documents concerning the damage to Alexander’s pickup truck. Leading up to trial, the County filed two motions to compel and a motion in limine, all relating to medical records. Finally, in a letter dated July 31, 2011, the County’s counsel reiterated its requests for medical records and then stated: “[W]e therefore ask that you provide us with a settlement demand as soon as possible in an effort to possibly avoid incurring some of the future legal expenses as I have detailed above.” All of this was irrelevant to whether or not MTCA immunity applied.

¶ 16. While there is not a set number of days that constitutes an unreasonable delay, our supreme court has held “that— absent extreme and unusual circumstances — an eight month unjustified delay in the assertion and pursuit of any affirmative defense or other right which, if timely pursued, could serve to terminate the litigation, coupled with active participation in the litigation process, constitutes waiver as a matter of law.” Horton, 926 So.2d at 181 (¶ 45) (footnote omitted). Here, we find that the two-year-and-four-month delay while the County pursued discovery related to Alexander’s damages was “an unnecessary and excessive waste of the time and resources of the parties.... ” Grimes, 982 So.2d at 370 (¶ 26).

¶ 17. Having found the County’s two-year-and-four-month delay in pursuing its affirmative defense of MTCA immunity was unreasonable and unnecessary, we likewise find the defense was waived. Some participation was necessary to determine whether the acts of the County and its employee were discretionary in nature and whether the employee was acting within the course and scope of his employment; however, once the drivers’ depositions were taken, the County had sufficient information to pursue its immunity defense under the MTCA. Thus, the trial court’s grant of summary judgment in favor of Newton County is reversed, and this case is remanded for reinstatement on the trial court’s docket.

¶ 18. THE JUDGMENT OF THE NEWTON COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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


author: FAIR, J., MAXWELL, J., CARLTON, J.,

text:
    Rundell JAMES, Jr. a/k/a Rundall James, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00157-COA.
    Court of Appeals of Mississippi.
    April 30, 2013.
    Rehearing Denied Aug. 20, 2013.
    Certiorari Denied Oct. 31, 2013.

      George T. Holmes, Jackson, Wilbert Le-von Johnson, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
   FAIR, J.,

for the Court:

¶ 1. Rundall James was convicted of murdering his great aunt, Zelphia Ivory, by pouring hot cooking oil on her as she slept. Ivory died before she could give a statement to the authorities. The State built a case against James showing that he had threatened to “burn” Ivory for making his dog sick and that he had been in the house a short time before the attack. However, the State’s key witnesses— James’s brother and his girlfriend — suggested James had left before the attack and testified that Ivory could not identify her attacker. The prosecution then impeached its own witnesses with unsworn prior statements that James had been identified as the assailant and that he was seen outside the house shortly after the attack.

¶ 2. We find that the impeachment was improper without the required predicate of surprise or unexpected hostility. We also conclude the error was prejudicial enough to deny James a fair trial, and we therefore reverse James’s conviction and remand for a new trial.

FACTS

¶ 3. In September 2009, Rundall James and his brother Zaeherius James (“Zach”) were living with Ivory, their great aunt, at her home in Mound Bayou. Ivory was ninety-five years of age, and over the years she had allowed many family members to stay in her home.

¶ 4. James allegedly came to believe Ivory had sickened his Rottweiler by feeding it table scraps. The dog ended up at the vet and may or may not have died. James was upset and demanded that Ivory pay for the dog and its veterinary expenses, but she was unable or unwilling to do so. This made James angrier, and multiple witnesses testified that in the weeks before her attack he had alternatively threatened to kill her, burn her house down, or “burn” her if she did not compensate him for the dog. Ivory made a report to the police about James approximately one week before the attack. The day before the attack James apparently waited for Ivory at the Senior Citizen Complex in Cleveland, Mississippi. Ivory appeared to be afraid of James and refused to go with him when he insisted. James repeatedly said: “You know what you’re supposed to be doing. You’re going with me.” James eventually relented and left.

¶ 5. Sometime after midnight Zach and his girlfriend, Samantha Jackson, returned to Ivory’s home. Zach was drunk, but Samantha had had only one drink. Zach had forgotten his key to the house, so he had to knock on Ivory’s window for her to let them in. They, along with two of Zach’s small children, retired to one of the bedrooms.

¶ 6. Lewon Payne testified that he and James had spent the evening at a high school football game. They went drinking afterwards, and when they got back to the Payne home, James was drunk. James wanted to sleep there, but he apparently was not ready to call it a night, so Crystal James — James’s sister and Payne’s then-wife — insisted Payne take James home. Payne complied, dropping James off at Ivory’s house between 2:00 and 8:00 a.m.

¶ 7. Samantha and Zach testified that sometime after they went to bed, James came into the house. He knocked on the door to their bedroom and asked for a cigarette. Zach awoke but did not respond; Samantha told James they did not have one. James then told Samantha he was going to his cousin’s house, and he closed the door. Three to five minutes later, Samantha saw a shadow move past the doorway, and a few minutes after that she smelled grease and heard cracking sounds. Then a shadow came back and forth across the doorway again, and she heard Ivory scream. Both Samantha and Zach got out of bed and rushed to Ivory’s bedroom, where they found her covered in grease. According to Samantha, she said, “I’m burning. He came through the window. Dear Lord, why am I burning so bad?” Zach testified Ivory told him someone had tried to come in through the window, but he found all the windows closed and locked. The front door, however, was either cracked open or “wide open,” depending on the testimony. Zach got dressed, retrieved a pistol, and went outside where he saw a man he described as “[n]o one in particular. Tall male, brown skin.” Zach initially “just assumed” the man was James because he appeared to be walking toward the house, but when Zach came out the man veered away. Zach denied the man looked like his brother. At some point, Zach fired a shot, though it is unclear from his testimony whether he was trying to shoot the man or just frighten him away. Zach and Samantha called the authorities and various family members. Diane James (Zach and James’s mother) arrived before the ambulance. She testified for the defense that Ivory said she did not know who had burned her.

¶ 8. Ivory suffered second- and third-degree burns to approximately forty percent of her body. She was taken by ambulance to the Bolivar County Medical Center and shortly thereafter flown to a burn center in Augusta, Georgia. She died of sepsis about one week after the attack. Ivory was sedated and intubated during her treatment and was never able to speak to the authorities.

¶ 9. The -prosecutor repeatedly questioned Samantha and Zach about prior statements they had made to investigators. The duo denied critical assertions supporting the prosecution’s case that were never established with admissible substantive evidence: that they would have heard James leave if he had left the house before the attack, that Ivory had identified James as the assailant, and that James was seen outside the house immediately afterwards. The prosecutor also sought to impeach their testimony on other critical points, including: whether and to what degree James was angry with Ivory over the dog, whether he had threatened her, and how many people had a key to the house. Zach and Samantha denied many of the alleged prior statements.

¶ 10. The State then called Investigator Charles Griffin, who testified to prior statements by both witnesses. The State also introduced and played for the jury a tape recording of Griffin’s interview with Zach that confirmed the investigator’s account of what Zach had said. Another investigator testified Zach had given him a similar statement about a year after the first interview. The State also called Le-won Payne, James and Zach’s former brother-in-law, who testified that Zach had, in a teary confession, told him Ivory identified James as her attacker. Zach also told Payne it was James he had fired upon outside the house. Payne described Zach as wracked with guilt for shooting at his brother and for implicating him to the authorities. Several times during the trial, the judge admonished the jury that it could not consider the impeachment as substantive evidence.

¶ 11. Zach and Samantha either denied making the prior statements or attempted to explain them. When confronted with his prior statement to Investigator Griffin, Zach testified he had not told the truth. He explained that after the attack, he and Samantha were arrested for the crime and booked into the Bolivar County Jail. Zach was told they would not be released until he gave a statement implicating James, who he was told had already confessed. Zach also claimed to have been threatened with' prosecution for “buying too many guns” if he did not implicate his brother.

¶ 12. The jury convicted James of murder and he was sentenced to life imprisonment. James appeals from that judgment.

DISCUSSION

¶ 13. James raises several issues on appeal, but we find one dispositive: whether the circuit court erred in permitting the State to impeach its own witnesses without first showing surprise or unexpected hostility. Because this error requires a new trial, we will not address the other issues presented in James’s brief.

¶ 14. The leading Mississippi case on this issue is Wilkins v. State, 603 So.2d 309 (Miss.1992). Our supreme court had promulgated the Mississippi Rules of Evidence some years before, in 1985, and in Wilkins the court addressed whether Rule 607 changed the pre-rules practice of allowing a party to impeach its own witness only if it was surprised by his testimony at trial. Rule 607 provides: “The credibility of a witness may be attacked by any party, including the party calling him.” The court considered the conflict between the apparent broadness of Rule 607 and other rules of evidence prohibiting hearsay, as well as the danger of a defendant being convicted based on testimony that was supposed to have been considered only for impeachment. See Wilkins, 603 So.2d at 818-22. The decision was unanimous in result, and eight of the nine justices agreed on an opinion authored by Justice Hawkins.

¶ 15. Our supreme court recognized that most other courts considering their analogues of Rule 607 had not explicitly required surprise or unexpected hostility. See id. at 321. However, in the supreme court’s view, they had achieved essentially the same result with a different justification: other courts forbid a party from using a prior inconsistent statement “under the guise of impeachment for the primary purpose of placing before the jury substantive evidence which is not otherwise admissible.” See id. The Wilkins court found this impractical because of its subjectivity, as well as unnecessary: “The trouble with this rationale is first ... it makes admissibility of evidence depend on what is in the attorney’s head, a rather difficult undertaking; and second, if there is in fact no surprise, the only possible motive for attempting to impeach one’s own witness is to get otherwise inadmissible testimony into evidence.” Id. (citation omitted). The court concluded that a bright-line rule requiring a showing of surprise or unexpected hostility was the better course, expressly rejecting exclusion only in the case of prose-cutorial subterfuge, an improper purpose, or the like. Id. Wilkins has been reaffirmed by the Mississippi Supreme Court as recently as 2011. See Osborne v. State, 54 So.3d 841, 845 (¶ 14) (Miss.2011).

¶ 16. In today’s case, the prosecution never claimed surprise or unexpected hostility. However, perhaps because we review a trial court’s decision on the admissibility of evidence for an abuse of discretion, Young v. State, 106 So.3d 775, 777 (¶ 9) (Miss.2012), appellate courts will sometimes search the record for a post-hoc justification for admitting the contested evidence. See, e.g., Wharton v. State, 734 So.2d 985, 986-87 (¶ 7) (Miss.1998). None is forthcoming in this case. Instead, from what we can glean from the record, the prosecution appears to have had good reason to anticipate hostility. Zach and Samantha moved out of state after the attack on Ivory, and the trial had to be continued several times because they could not be found. Even before they testified, the State felt it necessary to have them held in jail to ensure their appearance. Exactly what the prosecutors knew was never disclosed on the record. However, when the trial judge explained his decision to allow the impeachment, he described neither surprise nor unexpected hostility:

The Court did find — although the Court did make a ruling at that time — the Court did find that the testimony of Zacherius James had — his testimony had become hostile to the State, although he was a State’s witness, and, of course, the Court had some background with this case. The Court is aware, and I think several months ago the Court was made aware of the difficulty the State was having securing the attendance of [Zach] as well as Ms. Samantha Jackson, and so the Court was well aware of the potential that those witnesses may — their versions of events may change from those given to the trial, and for that reason, the Court felt that the tape would be admissible for purposes of impeachment, but the Court has taken caution to advise the jury that it’s for use of impeachment and impeachment only.

Given this record, on appeal the State does not argue surprise or unexpected hostility. It simply asserts that Zach and Samantha were hostile to the prosecution, which is undoubtedly true but not in and of itself sufficient. A party may call a hostile witness and ask him leading questions. See M.R.E. 611. But impeachment with a pri- or inconsistent statement is no ordinary leading question, and it carries the additional requirement that the hostility be unexpected. See Wilkins, 603 So.2d at 322. And the State did not simply ask Zach and Samantha whether they had made the prior statements, it called three other witnesses to testify to detail the prior statements and introduced a tape recording of Zach’s statement into evidence. Absent the proper foundation for impeachment, all of that was rank hearsay.

¶ 17. There is no clear evidence in the record of whether the State was surprised by Zach and Samantha’s testimony. The dissent contends that this absence of evidence requires us to affirm the trial court’s decision, but it misconstrues the burden of production, which is on the State. The proponent of evidence “has the burden of laying the proper foundation.” Brown v. State, 969 So.2d 855, 867 (¶ 36) (Miss.2007). “[BJefore a party will be authorized to introduce for impeachment purposes an unsworn pretrial inconsistent statement of his own witness, it will be necessary that he show surprise or unexpected hostility.” Wilkins, 603 So.2d at 322 (emphasis added); see also Osborne, 54 So.3d at 845 (¶ 14) (proponent .must show surprise or unexpected hostility); Wharton, 734 So.2d at 987 (¶ 7) (same); Whitehead v. State, 967 So.2d 56, 67 (¶ 21) (Miss.Ct.App.2007) (“Based on Wilkins, we agree that the State was required to show surprise prior to impeaching its witness.”). Without the proper foundation, we cannot reach any other conclusion but that the trial court erred in admitting the impeachment evidence.

¶ 18. Having concluded the trial court erred, we must next turn to the question of whether the error is prejudicial. We will reverse on the erroneous admission of evidence only where “a substantial right of a party is affected.” Young v. State, 106 So.3d 775, 777 (¶ 9) (Miss.2012); see also M.R.E. 103(a). Errors in the admission of evidence are subject to a harmless error analysis because, as is often said, a defendant is entitled to a fair trial, not a perfect one. Conners v. State, 92 So.3d 676, 688 (¶ 33) (Miss.2012) (citing Brown v. United States, 411 U.S. 223, 231-32, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973)). An error is harmless when “the same result would have been reached had it not existed.” Pitchford v. State, 45 So.3d 216, 235 (¶ 71) (Miss.2010). We review the record de novo to determine the error’s effect. Richardson v. State, 74 So.3d 317, 328 (¶ 37) (Miss.2011).

¶ 19. The State contends the admission of the impeachment evidence is harmless because its case against James was sufficient even if only the properly admitted substantive evidence is considered. That proof, however, is entirely circumstantial: James was angry with Ivory, he had threatened to kill and “burn” her, she was afraid of him, and he had been in the house before the attack and was gone afterwards. While this could sustain a conviction, the question before us is not sufficiency; to find harmless error, we look for proof of guilt that is overwhelming. See, e.g., Rogers v. State, 95 So.3d 623, 629 (¶ 19) (Miss.2012); Stone v. State, 94 So.3d 1078, 1086 (¶ 21) (Miss.2012); States v. State, 88 So.3d 749, 758 (¶ 38) (Miss.2012).

¶ 20. The dissent contends that Zach’s naming his brother as the man he saw outside the house was nonhearsay under Mississippi Rule of Evidence 801(d)(1)(C), which provides that a statement is not hearsay if: “The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... one of identification of a person made after perceiving the person.” If Zach had identified his brother, it would be admissible as substantive evidence under Smith v. State, 25 So.3d 264, 272-73 (¶¶ 23-27) (Miss.2009). However, Zach never made a “statement of identification” as contemplated by Rule 801(d)(1)(C). The rule uses identification in a technical sense, referring to a witness identifying the defendant in a line-up, show-up, photo array, preliminary hearing, or the like. United States v. Kaquatosh, 242 F.Supp.2d 562, 566 (E.D.Wis.2003). It does not include “statements unaccompanied by recognition of the defendant or his likeness.” Id.; see also 2 Kenneth S. Broun et al., McCormick on Evidence § 251 n. 35 (6th ed. 2006) (“A few courts have erroneously ignored the purpose and language of the rule as to testimony about an identification of the defendant through an out-of-court identification procedure and instead allowed testimony that a certain person, known to the witness, committed a crime.”); 2 Michael H. Graham, Handbook of Federal Evidence § 801.13 n. 2 (6th ed. 2006) (“The concept of ‘after perceiving him’ should be interpreted to refer to perceiving the individual or a representation of him once again after the event in question.”). Rule 801(d)(1)(C) “was not intended to allow the introduction as substantive evidence of hearsay statements that ‘the defendant did it.’ ” Kaquatosh, 242 F.Supp.2d at 565.

¶ 21. The State also contends the harm was mitigated or abrogated entirely by the trial court’s instructions to the jury that it could only consider the testimony for impeachment and not as substantive evidence. The trial court, sua sponte, instructed the jury on this point three times during the presentation of the impeachment evidence and once more when finally charging the jury. That the jury was properly instructed cannot be denied. Our concern, however, is the efficacy of the cautionary instructions.

¶ 22. We are well aware that under most circumstances, the jury is presumed to follow the instructions of the trial court. Sanders v. State, 63 So.3d 497, 504 (¶ 19) (Miss.2011). However, as the United States Supreme Court has observed, “there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Wilkins, our supreme court addressed this concern in the context of prior inconsistent statements. The court pointed out the inherent difficulty in following the cautionary instruction: if the jury believes the prior statement, i.e., that Ivory identified James as her attacker, how can it then put that aside and adjudicate his guilt based only on the State’s circumstantial case? The supreme court echoed a century-old observation that a jury attempting to comply with the instruction “might endeavor to do so, and believe they were doing so, and still be involuntarily and unconsciously influenced thereby.” Wilkins, 603 So.2d at 319 (quoting Williams v. State, 73 Miss. 820, 826, 19 So. 826, 827 (1896)). The court further observed: “permitting a jury to hear such testimony and then instructing it not to consider it except for ‘impeachment’ has been called by one scholar ‘a pious fraud.’” Id. (citing Edmund M. Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv. L.Rev. 177, 193 (1948)).

¶ 23. The facts underlying the Wilkins decision are instructive as to the whether the error in our case is harmless. Wilkins was accused of killing his brother-in-law. Admissible evidence included, among other things, testimony that a coconspirator had told his wife Wilkins had “done it” and that he was burning Wilkins’s clothes because they were covered in “blood and brains.” See id. at 312. The wife’s testimony was admissible because the eoconspirator had made the statements to her in furtherance of a conspiracy. Id. at 317. When called to the stand by the State, the coconspirator denied that Wilkins had committed the murder and that he had burned Wilkins’s clothes. The prosecution then impeached him with unsworn statements he had made to a police investigator and a jailhouse snitch, consistent with the wife’s account. The Wilkins court found this to be error for reasons we have already discussed. Even though the improper impeachment was largely cumulative and the jury was properly instructed that it could not be considered as substantive evidence, the supreme court still found the error reversible. See id. at 316. Given that the case against Wilkins was much stronger than the case against James, we do not see how the error in James’s case can be harmless.

CONCLUSION

¶ 24. The State spent nearly half of its case-in-chief impeaching its two most important witnesses. This impeachment was improper, yet it put in front of the jury the most damning evidence in an otherwise circumstantial case. We cannot say with any confidence that this error was harmless. See Pitchford, 45 So.3d at 235 (¶ 71). We are therefore compelled to reverse James’s conviction and remand for a new trial consistent with this opinion.

¶ 25. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR A NEW TRIAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS AND JAMES, JJ., CONCUR. MAXWELL, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY JAMES, J.; ROBERTS, J., JOINS IN PART. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P. J.

MAXWELL, J.,

specially concurring:

¶ 26. Justice Armis Hawkins, writing for the Mississippi Supreme Court in Wilkins, held that a party must still show surprise or unexpected hostility before impeaching its own witness, despite Mississippi’s then-recent adoption of Rule 607, which does not require either of these express showings. See Wilkins v. State, 603 So.2d 309, 322 (Miss.1992).. Because our supreme court continues to- adhere to these pre-Rule 607 requirements, I am compelled to agree with the majority that we are bound by Wilkins and must reverse James’s conviction.

¶ 27. But I write separately to point out that — while the supreme court in Wilkins emphasized that “since the adoption of the Mississippi Rules of Evidence” it has “followed the rationale of the federal courts” and prohibited parties from impeaching their own witnesses absent surprise or unexpected hostility, Wilkins, 603 So.2d at 322— this particular approach is not how federal courts have interpreted Rule 607. See Walker v. State, 144 Md.App. 505, 798 A.2d 1219, 1231 (2002) overruled on other grounds (contrasting Mississippi with the score of federal and state jurisdictions that have held that Rule 607 does not require surprise or unexpected hostility).

¶ 28. Under Federal Rule of Evidence 607, “[a]ny party, including the party that called the witness, may attack the witness’s credibility.” This rule is almost identical to Mississippi’s counterpart, which provides that “[t]he credibility of a witness may be attacked by any party, including the party calling him.” M.R.E. 607. The reason these rules make no mention of either a showing of surprise or hostility is simple — these exceptions to the prohibition against attacking one’s own witness were no longer necessary after the Federal Rules of Evidence retreated from the common-law “voucher rule.”

¶ 29. Federal Rule 607 was promulgated to replace the common-law “voucher rule.” See Chambers v. Mississippi, 410 U.S. 284, 296 n. 9, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (“The ‘voucher’ rule has been rejected altogether by the newly proposed Federal Rules of Evidence, Rule 607[.]”). The “voucher rule” was based on the old idea that a party, by calling a witness on its behalf, “vouched” for the witness’s credibility. See Moffett v. State, 456 So.2d 714, 718 (Miss.1984). Thus, the party was prohibited from attacking its own witness’s credibility through impeachment evidence. Id. As this rule started to become disfavored, courts came up with exceptions to chip away at the “voucher rule.” For example, if the party could show it was “surprised” by the testimony of its witness or that the witness was “unexpectedly hostile,” then it could get around the voucher rule and impeach its own witness. See id. (noting that the voucher rule was no longer in favor and was “riddled with exceptions”).

¶ 30. Rule 607 “was predicated on the modern reality that ‘a party does not hold out his witnesses as worthy of belief, since he rarely has a free choice in selecting them.’ ” Walker, 798 A.2d at 1231 (quoting F.R.E. 607, Advisory Committee Notes); see Chambers, 410 U.S. at 296, 93 S.Ct. 1038 (criticizing Mississippi’s common-law voucher rule because “in modern criminal trials, defendants are rarely able to select their witnesses: they must take them where they find them”).

¶ 31. In light of this reality, under both the federal and state rules, any party, including the sponsoring party, may attack the witness’s credibility. F.R.E. 607; M.R.E. 607. And because Rule 607 did away with the voucher rule, federal courts have recognized Rule 607 also did away with the exceptions used to get around the voucher rule. See Walker, 798 A.2d at 1231 (citing United States v. Ienco, 92 F.3d 564, 568 (7th Cir.1996); United States v. Kane, 944 F.2d 1406, 1412 (7th Cir.1991); United States v. Webster, 734 F.2d 1191, 1193 (7th Cir.1984); Robinson v. Watts Detective Agency, Inc., 685 F.2d 729, 740 (1st Cir.1982); United States v. DeLillo, 620 F.2d 939, 946-47 (2d Cir.1980); United States v. Dennis, 625 F.2d 782, 795 n. 6 (8th Cir.1980); Scholz Homes, Inc. v. Wallace, 590 F.2d 860, 863 (10th Cir.1979); United States v. Palacios, 556 F.2d 1359, 1363 (5th Cir.1977); United States v. Long Soldier, 562 F.2d 601, 605 n. 3 (8th Cir.1977)).

¶ 32. Following the adoption of Rule 607, federal courts shifted from honing on surprise to focusing on the actual purpose for impeachment, asking whether the government is abusing Rule 607 by calling a witness who otherwise has no useful, admissible evidence for- the purpose of admitting prior inconsistent testimony suggesting the defendant’s guilt. See Kane, 944 F.2d at 1411 (citing Webster, 734 F.2d at 1192; United States v. Morlang, 531 F.2d 183, 190 (4th Cir.1975)). So interpreting Rule 607 to have done away with the voucher rule and its exceptions of surprise and unexpected hostility does not ignore Justice Hawkins’s concerns in Wilkins— that the abolishment of the voucher rule may lead to the inappropriate use of inadmissible hearsay evidence under the guise of impeachment. Compare Webster, 734 F.2d at 1193, with Wilkins, 603 So.2d at 321-22. Indeed, while Rule 607 does not require surprise, it also does not permit subterfuge. See United States v. Miller, 664 F.2d 94, 97 (5th Cir.1981) (“Of course, the prosecutor may not use such a statement under the guise of impeachment for the primary purpose of placing before the jury substantive evidence which is not otherwise admissible:”). That is why the federal courts, when faced with the government seeking to impeach its own witness, look for subterfuge — the abuse of Rule 607 — and not surprise — the exception to the abolished voucher rule. See, e.g., DeLillo, 620 F.2d at 946-47.

¶ 33. The Wilkins court claimed it was following “the rationale of the federal courts.” Wilkins, 603 So.2d at 322. But by still mandating surprise or unexpected hostility, Mississippi actually clings to the old disfavored mechanical approach that in fact led to the creation of Rule 607. See Walker, 798 A.2d at 1232 (citing 4 Joseph M. McLaughlin, Weinstein’s Federal Evidence § 607.02[2][e] (2d ed.1997)). Judge Posner, on behalf of the United States Court of Appeals for the Seventh Circuit, summed up why the more flexible approach under Rule 403’s balancing test is preferable:

Webster [ (the defendant) ] urges us ... to go beyond the good-faith standard and hold that the government may not impeach a witness with his prior inconsistent statements unless it is surprised and harmed by the witness’s testimony. But we think it would be a mistake to graft such a requirement to Rule 607, even if such a graft would be within the power of judicial interpretation of the rule. Suppose the government called an adverse witness that it thought would give evidence both helpful and harmful to it, but it also thought that the harmful aspect could be nullified by introducing the witness’s prior inconsistent statement. As there would be no element of surprise, ... the introduction of the pri- or statements [would be forbidden]; yet we are at a loss to understand why the government should be put to the choice between the Scylla of forgoing impeachment and the Charybdis of not calling at all a witness from whom it expects to elicit genuinely helpful evidence.

Webster, 734 F.2d at 1193.

, ¶ 34. Mississippi’s approach places parties in both civil and criminal cases between the very “rock and a hard place” our federal courts have rejected. By requiring surprise or unexpected hostility, Mississippi harkens back to the former hard-line position that a party cannot legitimately impeach one of its witnesses with an un-sworn ' statement if, prior to calling the witness, it suspects the witness may go south. But the very reason Rule 607 was adopted was the modern recognition that neither the State, nor most any party, has the luxury of picking its fact witnesses and should not have to vouch for everything they testify about.

¶35. The reality is that our lawyers and judges are all too aware that a witness who initially came forward with helpful evidence during an investigation may for various reasons — threats, intimidation, close relationship, and a host of other conceivable reasons that pop up in criminal and civil cases — make a conscious decision to not be quite so honest or forthcoming once on the witness stand. But that should not mean — and does not mean in most courts — that absent a showing of surprise or unexpected hostility, if the party decides to call that witness, and the witness does indeed begin- to give harmful evidence that must be impeached, the prosecutor, criminal defendant, plaintiff, or civil defendant, as a rule, was trying to subvert the rules of evidence.

¶ 36. Simply put, lack of surprise does not always equal subterfuge. And the mountain of federal and state authority from other courts undermines the suggestion that requiring surprise or unexpected hostility is the only workable method of ensuring impeachment evidence is properly admitted. See Wilkins, 603 So.2d at 321.

¶ 37. As Judge Posner noted in Webster, “[t]he good-faith standard strikes a better balance.” Webster, 734 F.2d at 1193. Under Federal Rule of Evidence 403, and its nearly identical counterpart, Mississippi Rule of Evidence 403, the defendant can always “argue that the probative value of the evidence offered to impeach the witness is clearly outweighed by the prejudicial impact it might have on the jury, because the jury would have difficulty confining use of the evidence to impeachment.” Webster, 734 F.2d at 1193.

1138. For these various reasons, our modern rules of evidence sufficiently protect against inadmissible hearsay testimony being admitted under the ruse of “impeachment.” So there is really no reason for Mississippi to continue to graft on to Rule 607 the requirements of surprise or unexpected hostility — exceptions meant to soften the very common — law rule Rule 607 did away with.

¶ 39. Instead of looking for surprise or unexpected hostility, perhaps Mississippi’s Rule 607 analysis should focus on (1) whether the primary purpose of the State’s impeachment was indeed impeachment, and (2) whether the probative value of the impeachment evidence was outweighed by the unfair prejudice that may result if the jury were to use the impeachment evidence as substantive evidence. But with this said, as a member of our intermediate appellate court, I am certainly cognizant of my duty to apply Rule 607 as interpreted by the Mississippi Supreme Court. And because our supreme court still says that the State cannot impeach its witness without showing either surprise or unexpected hostility, I concur with the majority opinion.

JAMES, J., JOINS THIS OPINION. ROBERTS, J., JOINS THIS OPINION IN PART.

CARLTON, J.,

dissenting:

¶ 40. I would affirm the conviction and the judgment of the trial court in this case; thus, I respectfully dissent from the decision of the majority. An abuse-of-diseretion standard of review applies to our review of a trial court’s decision to admit or exclude evidence, including the decision to admit a prior inconsistent statement to impeach a witness. See M.R.E. 607. Additionally, if appellate review discerns any error, then the harmless-error analysis should be applied to the review of the totality of the evidence. In this case, I respectfully submit that the record supports the decision of the trial judge as to the admission of the prior inconsistent statements at issue as impeachment evidence, and I submit further that the record reflects no abuse of discretion, particularly in light of the limiting instruction to the jury and findings by the trial judge.

¶41. Upon my review, the record shows no abuse of discretion or error in this case since James provides no showing of an improper purpose by the State in seeking to admit the inconsistent impeaching statements. An improper purpose cannot be inferred without supporting evidence. The record displays the reluctance of the witnesses to attend the trial against James. The trial judge determined the witnesses provided testimony differing from their pretrial statements, with no notice to the State that they would be changing their prior statements to law enforcement. The trial court also gave a limiting instruction to the jury as to how to consider the impeaching prior inconsistent statements. The trial court followed the case law and the rules of evidence in admitting the prior inconsistent statements of Zach and Samantha as impeachment evidence. See M.R.E. 607; Bush v. State, 667 So.2d 26, 28 (Miss.1996).

¶ 42. As stated, James fails to show an intended purpose of subterfuge by the State in offering the impeaching prior inconsistent statements. Our appellate standard of review prevents us from rendering the factual finding of an improper purpose of subterfuge with no evidence of such. The record shows an evidentiary basis for the trial court’s factual findings determining the admission of these prior inconsistent statements for the purpose of impeachment as proper. The mere admission of a prior inconsistent impeaching statement, inculpating the defendant, fails to alone constitute evidence of an improper purpose. The case law and rules of evidence both allow the State to use prior inconsistent statements to impeach prosecution witnesses, even though the inconsistent prior statements directly inculpate the defendant. M.R.E. 607 & 613; see Wells v. State, 849 So.2d 1281, 1235-36 (¶ 8) (Miss.2003) (impeachment of uncooperative witness with prior inconsistent statement); Harrison v. State, 534 So.2d 175, 179 (Miss.1988); Bush, 667 So.2d at 28 (prior inconsistent statement inculpating defendant properly used to impeach uncooperative witness feigning memory loss). Here, the record and the law supports the admission of the prior inconsistent statements in dispute as impeachment evidence. Also, the record and the trial judge’s findings reflect the witnesses were reluctant to attend trial, and the witnesses testified at trial in conflict with their pretrial statements, with no prior notice to the State of changing their prior statements to law enforcement.

¶ 43. Precedent allows unwilling witnesses to be impeached with their prior inconsistent statements with no refuge in perjury. As acknowledged, the record shows that these witnesses at issue were closely related to James and Ivory, who was so severely burned that she died. Zach is James’s brother, and Samantha is Zach’s girlfriend. They both lived with Ivory, Zach and James’s great aunt. The record shows that James threatened Ivory over the food she fed his dog. The record further shows Ivory feared James and his threats, and indicates that Zach and Samantha knew James had threatened Ivory and knew Ivory feared James. Zach and Samantha also saw the burns Ivory received.

¶ 44. Nothing in the record shows Zach and Samantha notified the State before trial of a change to their prior statements to law enforcement, and the State cannot be expected to know that a witness is willing to commit perjury. Without evidence of such, we cannot on appeal assume that the trial court’s findings reflecting the reluctance of Zach and Samantha to attend the trial meant a change in their prior statements to law enforcement. Reluctance to attend trial to testify against a relative, or other person with whom the witness has a close relationship, does not impute some knowledge to the State that the witness will commit perjury or change his or her testimony during trial, particularly here where the witnesses were also close to Ivory. The State takes its witnesses as it finds them with respect to their knowledge and relationship to the charged offenses and the parties. Zach and Samantha initially cooperated with law enforcement after Ivory was burned, and no indication in the record points toward Zach or Samantha as suspects in this case. No evidence indicated that they would later change their prior statements to law enforcement during trial, even though they may have been fearful and reluctant witnesses.

¶45. As discussed, the trial judge’s findings show the reluctance of the witnesses to appear at trial. The trial court’s findings reflect that the court feared from the difficulty in securing attendance of these witnesses that they may change their version of the events. However, the trial court found that nothing established that the State knew the witnesses would change their stories. Reluctance to attend the trial is not alone evidence that witnesses will perjure themselves. See Wharton v. State, 784 So.2d 985, 986-87 (¶ 7) (Miss.1998) (acknowledging that the language of Wilkins v. State, 603 So.2d 309 (Miss.1992), was in the disjunctive and that a sufficient predicate is shown by unexpected hostility or surprise; no requirement exists to mechanically show only surprise). Here, the record reflects a sufficient predicate for the admission of the prior inconsistent statements to impeach when considering the trial judge’s factual finding of reluctance to attend trial; the witnesses’ hostility during trial; and the conflicting trial testimony. The findings of the judge refute James’s bare assertion of subterfuge for an improper purpose by the State, and James provides no indication or showing of an improper purpose by the State. Our jurisprudence allows the State to admit prior inconsistent statements to impeach its witnesses who changed their statements at trial out of fear or feigned memory loss.

¶46. There are also other permissible purposes for the admission and use of the prior inconsistent statements at issue. Zach had provided a prior statement, inconsistent with his testimony at trial, that identified James as the attacker and asserted that James had been seen outside the house immediately after the attack. Such a statement constitutes a prior identification, and since Zach testified at trial subject to cross-examination, such a statement fails to constitute hearsay. M.R.E. 801(d)(1)(C).

¶47. The Mississippi Supreme Court has also recognized another purpose, distinct from impeachment, for admission of a prior inconsistent statement. In Smith v. State, 25 So.3d 264, 272 (¶¶ 22-23) (Miss.2009), after determining that the admission of evidence under one particular evidentia-ry rule constituted error, the supreme court evaluated other proper bases for admission under the rules before determining error. The supreme court reversed this Court’s decision and affirmed that of the trial court, focusing not on the impeachment use of prior inconsistent statements, but instead on the admission of a prior identification. Id. at 271-274 (¶¶ 19-28). As acknowledged, the supreme court in Smith recognized that the trial court erred in admitting a prior inconsistent statement into evidence as substantive evidence of guilt via Mississippi Rule of Evidence 804(b)(5), after declaring the witness unavailable due to a lack of memory. Smith, 25 So.3d at 271-72 (¶¶ 19-22). The supreme court found the prior unsworn inconsistent statement directly inculpated the defendant by identifying him as the perpetrator, and the supreme court held that the trial court erred in finding the witness unavailable on the subject matter of the statement. Id. at 271 (¶21). However, the court did not stop with its review upon that determination.

¶ 48. The Smith court continued to evaluate whether the statement at issue was admissible under the rules upon another basis is for admissibility. Id. at 272 (¶ 23). The court found that regardless of whether the witness was impeached, the prior statements ■ of the witness testifying at trial, subject to cross-examination, were admissible under Rule 801(d)(1)(C) as pri- or identification testimony. Id. at 273 (¶25). The witness previously had unequivocally identified the defendant as the shooter, but at trial, claimed that he did not see the defendant during the day of the shooting. Id. The court recognized that the witness’s prior statements to investigators contained more than just the prior identification; these statements referred to motive, threats, and drugs. Id. The court continued to explain that “the mere fact that the trial court committed error in an evidentiary ruling does not by itself warrant a reversal,” and explained that the evidence as a whole must be evaluated. Id. Finding other evidence in the record supporting the finding of guilt, the supreme court then held any error in admitting statements beyond those identifying the defendant to be harmless. Id. at (¶ 26). The Smith court also provided that the admission of statements going beyond mere identification, relating to motive and threats, was harmless error. Id.; see also Anderson v. State, 811 So.2d 410, 413 (¶ 11) (Miss.Ct.App.2001) (State possesses “legitimate interest” in presenting rational and coherent complete picture of the crime, even though other crimes may be revealed or suggested); Magness v. State, 106 Miss. 195, 195, 63 So. 352, 353 (1913) (sufficient to show unwilling witness will not confirm or deny prior statement to impeach unwilling witness with prior inconsistent statement).

¶ 49. In this case, I respectfully submit that the trial court followed the rules of evidence in allowing impeachment of the witnesses’ .credibility via their own prior inconsistent statements as allowed under Rule 607. The record also shows that the trial court followed precedent in providing a limiting' instruction. The trial court’s finding that the prior inconsistent statements constituted proper impeachment of the witnesses, who were closely related to Ivory and James, shows no subterfuge by the State. The prior inconsistent statements were also admissible under our evi-dentiary rules for other proper purposes such as prior identification. I submit, therefore, that upon considering the record and evidence as a whole, the trial court committed no abuse of discretion in admitting the impeaching statements. The record shows no indication of subterfuge, and the trial court’s findings contradict James’s bare assertions of subterfuge. I therefore respectfully dissent, and would affirm the trial court’s judgment.

IRVING, P.J., JOINS THIS OPINION.

      . That rule was also adopted in Mississippi, though it is most frequently cited in the context that a prosecutor may not ask impeachment questions without a good faith basis. See, e.g., Flowers v. State, 773 So.2d 309, 326 (¶ 58) (Miss.2000).

      . In holding that Maryland’s Rule 607 does not require a party to show surprise or unexpected hostility in order to impeach its own witness, Maryland's Court of Special Appeals relied on the following state cases that "have also refused to engraft the requirement of surprise”: Burgin v. State, 747 So.2d 916, 919 (Ala.Crim.App.1999); Eubanks v. State, 516 P.2d 726, 728 (Alaska 1973); State v. Acree, 121 Ariz. 94, 588 P.2d 836, 838 (1978); State v. Graham, 200 Conn. 9, 509 A.2d 493, 498 (1986); Morton v. State, 689 So.2d 259, 262 (Fla.1997), overruled on other grounds by Rodriguez v. State, 753 So.2d 29 (Fla.2000); State v. Gonzalez, 120 Ill.App.3d 1029, 76 Ill.Dec. 393, 458 N.E.2d 1047, 1055 (1983); State v. Farley, 225 Kan. 127, 587 P.2d 337, 341 (1978); Thurman v. State, 975 S.W.2d 888, 893 (Ky.1998); State v. Cousin, 710 So.2d 1065, 1070 (La.1998); State v. Dodge, 397 A.2d 588, 592 n. 6 (Me.1979); Smith v. State, 766 P.2d 1007, 1009 (Okla.Crim.App.1988); State v. Warren, 88 Cr.App. 462, 745 P.2d 822, 824 (1987); State v. Kimbell, 563 Pa. 256, 759 A.2d 1273, 1279 (2000); State v. Collins, 186 W.Va. 1, 409 S.E.2d 181, 188 (1990); State v. Hancock, 109 Wash.2d 760, 748 P.2d 611, 612 (1988). Walker, 798 A.2d at 1231, overruled on other grounds by Walker v. State, 373 Md. 360, 818 A.2d 1078, 1089 (2003) ("We hold that the trial court and Court of Special Appeals properly found that proof of surprise is not a necessary prerequisite under Md. Rule 5-607 analysis.”).
      Only Mississippi was cited as "still" requiring surprise or unexpected hostility. Walker, 798 A.2d at 1231 (citing Wilkins, 603 So.2d at 322).

      . The comment to Rule 607 explains that Rule 607 repudiates the old voucher rule. See John Strong, McCormick on Evidence § 38, at 142 (5th ed.1999) (inflexible insistence on showing surprise and affirmative damage before the government can impeach its witness would mean a return to the unsatisfactory mechanical approach that helped lead to the adoption of Rule 607); Joseph M. McLaughlin, Weinstein's Federal Evidence, § 607.02[2][c] (2d ed.1997) (the balancing test of Rule 403 now applies and is more flexible); see also M.R.E. 613.

      . See Smith v. State, 25 So.3d 264, 273 (¶ 25) (Miss.2009). In Smith, the supreme court provided that the mere fact that trial court committed error does not alone mean that such error constituted reversible error. The Smith court found that the trial court admitted evidence improperly under a particular rule of evidence. Id. at 272 (¶ 22). The court then reviewed the record to determine if the evidence was admissible under another rule of evidence. Id. at (¶ 23).

        . See Morgan v. State, 818 So.2d 1163, 1171-72 (¶ 17) (Miss.2002) (allowing admission of inconsistent statement to impeach State witness); Wharton v. State, 734 So.2d 985, 986-87 (¶ 7) (Miss.1998) (acknowledging that the language of Wilkins v. State, 603 So.2d 309 (Miss.1992), is disjunctive and that a showing of surprise or unexpected hostility would suffice; the court did not mechanically require only a showing of surprise); see also United States v. Hogan, 763 F.2d 697, 702 (5th Cir.1985) (opinion withdrawn in part by United States v. Hogan, 771 F.2d 82, 83 (5th Cir.1985)) (prior inconsistent statement may be used to impeach government’s own witness even if the impeachment evidence directly inculpates the defendant).

      . The supreme court has not found subterfuge or abuse of discretion where the trial judge provided findings that witness was hostile, aligned with an adverse party, or feigned memory loss. Harrison v. State, 534 So.2d 175, 179-80 (Miss.1988).

      . Franklin v. State, 72 So.3d 1129, 1138 (¶ 40) (Miss.Ct.App.2011); Lafayette v. State, 90 So.3d 1246, 1256 (¶¶ 23-24) (Miss.Ct.App.2011) (reversed on other grounds); Bailey v. State, 956 So.2d 1016, 1025 (¶ 25) (Miss.Ct.App.2007) (abuse-of-discretion standard of review applicable to admission or exclusion of evidence); Quinn v. State, 873 So.2d 1033, 1039 (¶ 26) (Miss.Ct.App.2003).

      .In Harrison, 534 So.2d at 179, the supreme court held that prior inconsistent statements used for the purpose of showing unreliability to impeach the credibility of a witness may be used by any party, including the party calling the witness, to attack the credibility of a witness. The court explained that the State may impeach the credibility of its own witnesses. Id. at 179-80. Additionally, the prior inconsistent statement can be used to impeach even if the statement also directly inculpates the defendant. Id. at 178. The court provided that it is proper for the trial court to give the jury a limiting instruction as to consideration of the prior inconsistent statement for impeachment purposes and not as substantive evidence of guilt. Id. at 179.

      . Bush, 667 So.2d at 28.

      . Morgan, 818 So.2d at 1171-72 (¶ 17); Harrison, 534 So.2d at 179.

        . Bush, 667 So.2d at 28 (prior inconsistent statement of prosecution witness properly admitted after witness refused to cooperate); Morgan, 818 So.2d at 1171-72 (¶ 17); Harrison, 534 So.2d at 179.

      . See M.R.E. 607.